Brandon v. . Phelps

Fair cloth, J. Original letters of administration were *46 granted in January, 1855. Letters of administration debonis non on the same estate were granted to the plaintiff in 1876,, and the heir at law in 1871, sold and .conveyed to the defendant some of tire real estate of which plaintiff’s intestate died seized. The plaintiff’ now applies for a license to sell said real estate for assets to pay debts of his intestate still outstanding. It is properly conceded that if the sale had been made-more than two years after the original letters were granted and before the Act of 1868-’69, ch. 113, the purchaser, the defendant, would have acquired an absolute title as against creditors, but the plaintiff insists that by virtue of said Act, § 105, he has the right to sell, inasmuch as defendant Phelps purchased with notice that said debts were still unpaid. His Honor sustained this view and in doing so we think he committed error. If said Act had made it a doubtful question, the subsequent Acts, (Bat. Rev. ch. 45, §§ 58, 101, and the Act of 1872-73, eh. 179,) removed every shadow .of doubt by expressly declaring that cases like the present shall be dealt with, administered, closed up and settled according to the law as it existed just prior to July the 1st, 1869, according to which the purchaser acquired a good title with or without notice of unpaid debts; provided his purchase was more .than two years after original letters were issued. As notice was immaterial i't was unnecessary to submit ■ such an issue to the jury, and as no issue of fact was raised, by the pleadings, the case was improperly transferred to the ■ trial docket. A copy of the record should have been sent to the Judge at Chambers for his hearing and decision, and thereafter be transmitted by him to the Probate Court for further proceedings. See Jones v. Hemphill, ante 42. There is error. PER CuniAM. Judgment reversed..