Dorrance v. Raynsford

Andrews, C. J. The only substantial question presented by this appeal is whether or not the deed under which the plaintiff claimed, was valid to convey the real estate tlmt had belonged to George W. Palmer in his lifetime. All the other questions in the case are included iu this one. [6] “It is a general principle, that the party who sets up a title must furnish the evidence necessary to support it. If the validity of a deed depends on an act in pais, the party claiming under that deed is as much bound to prove the performance of the act, as he would be bound to prove any matter of record on which its validity might depend. It forms a part of his title; it is a link in the chain which is essential to its continuity, and which it is incumbent on him to preserve. These facts should be examined by him before he became á purchaser, and the evidence of them should be preserved as a necessary muniment of title.” Williams v. Peyton’s Lessees, 4 Wheat., 79 (Marshall, Ch. J.) ; Ransom v. Williams, 2 Wall., 313, 319; Early v. Doe, 16 Howard, 610 ; Mason v. Fearson, 9 id., 248; Thatcher v. Powell, 6 Wheat., 119, 125 ; Beekman v. Bingham, 5 N. Y., 366; Mut. Benefit Life Ins. Co. v. Tisdale, 91 U. S., 238; Wharton on Evidence, §§ 176, 923. To support his title under this deed, it was necessary for the plaintiff to show that the said adminstrator had a valid power to sell the land of his intestate, and that such power had been exercised in the manner required by law. To do this he put in evidence the order of the Court of Probate and the other evidence mentioned in the finding. By the law of Connecticut, as by the common law, the real estate of a deceased person vests at once in his heirs or legatees. 2 Blaekstone’s Comm., 201; 1 Swift’s Dig., 113. George W. Palmer died intestate, and whatever real estate he owned at the time of his death, vested immediately in his heirs, and could be taken from them only to satisfy some claim existing against him in his lifetime, or some condition arising in the settlement of his estate which made the sale of land necessary or advantageous, and then only in the manner pointed out by law. Shelton v. Hadlock, 62 Conn., 143; Buel’s Appeal from Probate, 60 id., 65-67. The several statutes and statutory changes according to which the Courts of Probate have from time to time been empowered to authorize the sale of any interest which a deceased person, whose estate was being settled, had in such [7] real estate, have been very recently considered by this court in Buel’s Appeal, supra. We have no occasion to repeat that examination. Originally, courts exercising jurisdiction over the settlement of estates of deceased persons, had no authority whatever over the real property belonging to the deceased. In later times such courts could, by the authority of the statutes, order the sale of so much, and only so much, of the land of the deceased, as was necessary to pay any excess there might be of the indebtedness of the deceased over the value of the personal property. This was the law of Connecticut down to very recent times, as is shown in Buel's Appeal. But under the later statutes, as well as under all former ones, a Court of Probate, when ordering a sale of any of the real estate of a deceased person, is exercising a special statutory power. It is a power not regarded as one that pertains to the ordinary settlement of the estate. In all such cases the rule is that the authority must be strictly followed, otherwise the order will be void. Wattles v. Hyde, 9 Conn., 10; Watson v. Watson, 10 id., 77 ; Howard v. Lee, 25 id., 1; Atwater v. Barnes, 21 id., 237; Parsons v. Lyman, 32 id., 566, 571; Potwine’s Appeal, 31 id., 383; Thatcher v. Powell, 6 Wheat., 127. The evidence offered by the plaintiff was insufficient to support the deed. Whenever the land of a deceased person is sold by an order of the Court of Probate, the only prudent course is that the application to the court should be in writing, so that the facts on which the sale of the land was sought and on which the sale was authorized, should appear distinctly on the record. If an oral application could ever be tolerated, it could only be in a case when the record itself set forth the facts in full. In this case the record is fatally defective, and is not saved by the provisions of § 436 of the General Statutes. But there is a much stronger reason. The statute — § 600 —under which the Court of Probate acted, requires that there should be a hearing after a public notice, before any order for the sale of any land of a deceased person can be made. In this case there is no evidence that any public notice or any notice whatever, of the application to sell, was given [8] to the parties interested adversely in the estate sought to be sold. The order of sale was invalid for this reason. It appears that among the persons so adversely interested were the present defendants; as also were the heirs of George W. Palmer. They had no notice of any hearing, nor did they have any hearing as to the proposed sale. As to them the proceedings before the Court of Probate were coram non judice and wholly void. It is a principle of natural justice of universal obligation, that before the right of an individual can be bound by judicial sentence, he shall have notice, either actual or constructive, of the proceedings against him. The Mary, 9 Cranch, 126 ; Bradstreet v. Insurance Co., 3 Sumner, 607. The evidence failed to show that the said administrator had power to sell the land described in the deed. There is no error. In this opinion the other judges concurred.