Yerger v. Ferguson

delivered the opinion of the court.

It was not erroneous to render a final decree on the return-day of the citation, and on the day when the answer of the infant defendants was filed by their guardian ad litem. Wells et al. v. Smith, Admr., 44 Miss. 296. No precedent order of court was necessary to authorize the issuance of the citation. Laws Miss., Acts 1867, p. 407.

The third ei’ror assigned is not well taken, because we cannot say from the schedule of debts filed with the petition that the estate was not insolvent, and the presumption that the decree is correct as to that must prevail.

The petition to the Chancery Court for leave to carry into *195effect the former decree of the Probate Court to sell the land was unnecessary. So much of the decree of the Probate^ Court as directed the executor to report his sale of the land to said court at its April term, 1870, was surplusage, and in no way affected the duty of the executor to proceed under, the order to sell as directed by the statute. The attempt of the Probate Court to restrict the executor as to the time of making the sale, by directing when he should report it, was-nugatory, and not obligatory upon the executor, whose directions as to the execution of the decree of sale were contained in the statute, and not to be looked for in the order of sale. Rev. Code 1857, p. 449, art. 99; ib., 446, art. 90.

The power of the court, as defined by statute'(Code 1857, p. 449, art. 98), extended to making a decree for the sale of the estate, and no further. The court had no discretion as to-when the sale should be made, or when it should be reported.. It could do just what the statute authorized it, and no more ; and the statute did not authorize it, expressly or by implication, to say when the sale should be made or reported. The-only way in which the court could exercise any control oveithe manner in which the executor executed the order to sell was upon his report of the sale. Code 1857, p. 447, art. 91. It follows that the fourth error complained of does not exist ;■ for, if the executor had the right to sell under the decree of sale made by the Probate Court in November, 1869, the useless, proceeding in the Chancery Court did not deprive him of the-power to sell.

The fifth error assigned is based upon the fact that the record, shows that there was proof of the publication of notice of the= sale, by advertisement in a newspaper and by posting at the-court-house door, but there is no proof of posting notices at. other public places in the county in which'the land is situated. No law required or provided for producing or perpetuating-evidence of posting notices. The statute (Code 1857, p. 519, art. 241) does provide that the publication of any notice in a newspaper, when required by law or by order of court, may be proved in a certain way, but no provision is. *196made for this.becoming part of the record. It is merely.evidence of the publication, just as sworn testimony of the fact of posting notices would be evidence before the court called on to act upon the question whether the law had been complied with as to posting notices and publishing in a newspaper. The ■decree confirming the sale recites that it appeared to the court that due notice of the sale had been given according to law and t.he decree of sale. This recital, not being contradicted by the record, is ■ sufficient to uphold the decree confirming the sale, so far as notice of the sale is involved. All that was necessary is that the court should be satisfied in this respect, and the record shows that it was. .

The last error assigned is that it does not affirmatively appear. from the record that the executor gave a bond, before the sale, to secure the application of the proceeds of the sale of the land, or that the bond was approved by the court. The decree for the sale directs “that the said executor, before making said sale, enter into bond with security, in the penalty of ten thousand dollars, conditioned to apply the proceeds of said sale as the law directs.” This direction is based upon the act approved November 30, 1858 (Pamphlet Acts 1858, p. 187), which was construed in Hamilton & Young v, Lockhart et al., 41 Miss. 460, to apply to a sale, made under article 93, page 447, of the Revised Code of 1857, and in Bucher et al. v. Dyer, Admr., etc., 44 Miss. 591, to apply to a sale under article 98, page 449, of said Code. The act of 1858, cited above, provides “ that whenever the Probate Court shall, pursuant to the provisions of article 89, chapter 60, of the Revised Code of this state, order a sale of the real estate of any deceased person, it shall be the duty of said court to require the executor or administrator, * •* * prior to the sale of said real estate, to execute a bond,” etc. Here the decree directs such a bond as the statute requires to be given by the executor before the sale, and such a bond, in the penalty prescribed by the decree, was given, and purports to have been drawn with reference to a sale not made, but about to be made,, and was filed on the day on which the sale was made. The *197sale was duly reported to the court, and by it confirmed, and the decree of confirmation recites that the court was satisfied that the directions of the decree and the law were in all things complied with by the executor in making'said sale. This is sufficient, although there is no express order approving the bond.

The decree is affirmed.

dissenting.

I cannot concur in the view that the Probate Court had no power, while granting authority to the executor to make sale of the lands, to fix the time when such sale should take place.

My opinion is that when that court, during the period of its existence, had once acquired jurisdiction over the lands of a. decedent, by the concurrence of those circumstances which, invested it by law with the right to convert them into assets, they became- a fund for the payment of debts- in the hands of the executor or administrator, and that officer, in making the conversion, was bound to observe all the requirements of the decree authorizing it, not inconsistent with the written law. The jurisdiction of the Probate Court over realty properly condemned to be sold was, in my opinion, as ample as that over personalty, and I cannot doubt that, in ordering a sale of the latter, the court might prescribe the-period of sale.

It is well known that, in a purely agricultural country like-ours, there is nothing which exerts a greater influence in the price obtained for lands at public auction than the season of the year at which the sale takes place ; and I think that the court, might well require it to be made at such time as would most, likely result in producing a full price. If no time was fixed by the court, as was usually the case, then the administrator-selected his own time; but if the time was prescribed, he must observe it, or obtain from the court an alteration or ex*198tension of it, after notice to the parties in interest. It will not do to say that the same end could be accomplished by a refusal to confirm where an inadequate price had been obtained. The power to withhold confirmation exists in all courts which have the right to order sales, but I am not aware that any of them have ever been denied the power of designating in advance the time of sale by them deemed most .suitable. If, as held in the majority opinion, the Probate •Court had by law no control over the time of sale, but this was a matter left wholly to the executor or administrator, it would seem that that officer could not be in any manner controlled or restrained in selecting his time.

If, despite repeated refusals by the court to confirm his .sales, he persisted in malting them' at a season of the year when there was no market for lands, what would be the xemedy? If it be answered that such conduct would warrant his removal, this amounts at last to an assertion of jurisdiction in the court over the time of sale, and subverts the idea of an unlimited and illimitable authority on the part of the .administrator. It would seem more consonant with reason to .admit the power of the court to fix the time in advance.

I think the Probate Court of Washington County had the xight, by requiring the report of sale to be made to its April term, to fix thereby the time of sale at some period antecedent to that term ; that this being" a material part of the decree, it could not be subsequently changed without notice to the heirs, and that the fourth assignment of error is, therefore, well taken.

It will be borne in mind that this is not a collateral attack upon the title of the purchaser, but a direct appeal from the •decree confirming the sale.