Brown v. Brown's Adm'rs

JUDGE, J. Lands ordered to be sold for distribution, must, under section 1872 of the Code; “be advertised, and conducted, and bonds taken for the purchase-money, if sold on a credit, with two sufficient securities; the sale confirmed, and titles made to the purchaser on the payment of the purchase money, in all respects, as upon a sale of lands by an executor or administrator, under an order of the probate court, for the payment of debts.” Turning to section 1764 of the Code, which relates to a sale of lands by an executor or administrator for the payment of debts, we find it as follows :—“The lands may be sold, on such credit as the court may direct, not exceeding two years ; and they must be sold at the court-house of the county in which they lie; and the sale conducted in all respects as the sale of personal property.” By an act of the legislature, approved November 19, 1853, section 1764 of the Code, above quoted, was amended, so as to require sales of real property by executors, or administrators, to be held at “such place in the county as the judge of probate may in his discretion direct.” — Session Acts, 1853-'4, p. 252. [217] Thus it is perceived that no place in the county is now fixed by law, at which, sales of real property by executors or administrators shall be held; but the place of every such sale, within the limits of the county, rests, under the law, in the discretion, exclusively, of the judge of probate. The decree of sale, in the case before us, does not direct the place of sale ; no power exists in the administrators to select the place; consequently, no legal sale can be made under the decree, and it is therefore erroneous. By not considering the other questions presented by the record, we must not be understood as impliedly expressing any opinion upon them. They may not again arise in the same form, and hence we do not consider them. For the error above pointed out, the decree is reversed and the cause remanded.