Year: 1861

ply 70 the Qhencery Circuit Court of the county
"ers .ne lands of the intestete lie for sale there
81 81, OF 50 much as may be necessary. Butit must
nrs. os naoe satisfactorily to appear that the per
sonai essase mas been exhausted lin the payment of
bona da debts. and that the debt for TIE satisfac
ton OF which the sale is asked, are Justly due and
owing.


The proceeding in question fall quite as far short
of complying with this latter act as with the act
regulating the administration Of insolvent estates
By the act of 1925, the County Court has NO iuris
tion to decree sale of land; and by the 9Th section
the proceeding under it is to be conducted IN snit
in equity; and before "a decree can be made for
the sale of lands, the existence Of a bona fda
debt or debts must first be satisfactorily esfah-
lished.


His clear therefore that the sale of the land in
controversy, under the order of the County Court,
was simply void, being wholly without authority
OF law, the County Court having no jurisdiction in
such case, to decree sale of land.


But again. if the proceeding had been regular
proceeding under the act for the administration Of
insolvent estate, while it is true, that the county
Court would have had jurisdiction by the l4th sec
ton of the act to decree sale of real estate, yet It
is clear that the sale in the present case would
have been wholly imperative to communicate any
legal title to the purchaser.


By necessary construction under the act Of ls2l-2
the jurisdiction given to the County Court to sell
land, must be confined to where the intestate
died seized of the LEGAL title and cannot be extended





of redemption. other equitable interest. In all
such cases, under that act resort must be had to
Court Of equity.


Furthermore, it is altogether mistaken conclu-
sion, that the statute recommending the admins
tratien efinsolvent estates, designed to effect in
any manner whatever. valid prior hens, mortgages,
or securities acquired by creditor upon the prop
erty of the intestate, in his lifetime.


The general principle applicable to assignments
in cases of bankruptcy and insolvency is that the
assignees take only such rights as the assgnor or
debtor had at the time of assignment. 2 Story's
Equ. Jur. sec. 1923.


And so, under ourEstatute for the administration
of nsolvent estates the general creditors caH claim
nothing more than such rights as the intestate pos
sessed, at the time of his death.


If the property of the intestate, or any portion
of it be subject to valid prior lien, or incum-
brance by mortgage or otherwise, the Incumbrancer
should be proceeded against in the appropriate
forum to the end that if after the discharge Of the
incumbrance, a surplus should remain, it might be
applied to the benefit of the general creditors.


1t may be that the creditor having a security by
mortgage, or otherwise, upon property of the es.
tate, might waive surrender such security for
the benefit of the estate, and come in for ratable
division of the whole estate with the other creditors,
and having elected to do 3d. he would certainly be
bound thereby. But clearly he is not bound to do
so voluntarily He has the right to trust to his
curity fairly acquired in the life of the intestat=
If it be adequate, he is safe; and he can look to
that source for the satisfaction of his debt.


IL it be inadequate, it is his duty to take prompt
steps to make his claim for the residue of his debt
to the tribunal charged with the administration of
the estate; and if he neglect to do 80 In proper time
be must submit TO the loss.


And it. on the other hand, the security be more
than adequate the personal representative or cred
itors, If tie intesate have plain remedy against
him. to avail themselves of the surplus.


But it cannot be held that his failure to come in
voluntarily and make himself party to proceed
ing TO which the parties in interest have thought
proper to make him q party, shall be allowed to
prejudice his rights.


Upon another distinct ground, the sale of the
land would have been void, in the present instance,
supposing the proceeding to have been regularly
instituted and conducted under the law governing
the administration of insolvent estates; and, like
wise supposing that the County Court had jurisdic
ton 70 sell a mere equitable interest in land and
that s that from the allegation of the petition that
the intestate died loitOt heirs the legal consequence
was that the tract of land esehested to the State
for the use Of common schools.


And though it is true that it would pass to the
commissioners of common schools subject to the
debts and liabilities of the intestste still the board
of commissioners who are body corporate, hav-
ing interest in the property, would have been an
indispensable party to any proceeding Tor the sale
of the ntestates equitable interest in the land; and
a sale without having the board of commissioners
party would be utterly void, held IN Hinkle vs.
Shadders, 2 Swan, 46.


Hence in every aspect of the case the sale under
the decree of the County Court was void, and the
plaintiffs title to tbs land must prevail


judgment reversed. MCKINNEY.


Correct copy: J.P. CLARK, Clerk.