Atwood v. Frost

Campbell, C. J. This case having been once before decided, on the validity of defendant’s title under a probate sale, as reported in 51 Mich. 360, we declined to hear that question re-argued, unless upon some ground which could [412] legally distinguish the present record from that. We find no such distinction. It appeared there, as here, that defendant claims under a sale by an executor. Having been licensed in December, 1879, to sell lands which are claimed to cover the estate in question, the executor sold such lands of the decedent as had not been specifically devised, in March and May, 1880. He subsequently, on June 30, 1880, applied to the probate court to have the specific devisees and legatees ordered to contribute their shares of. the deficiency still remaining, and in default, to have their property sold under the previous license. On the second of August, 1880, the probate court apportioned the amounts to be contributed by the devisees, and having fixed the value of Sarah Jane Diboll’s devise, in the land in question, at $1,200, ordered her to contribute $378, and so with the others, and decreed that unless paid in twenty days, the executor should sell their lands under the license issued in December, 1879. On the thirteenth of September, 1880, the executor gave notices of sale, referring expressly to the order of August 2, 1880, as well as to the license of December, 1879. On that sale the property was sold to defendant, and subsequently confirmed, the report of confirmation referring to the notices under which the sale was made. We held in our previous decision that the probate sale, being founded on the proceedings of August 2, 1880, was void, as the statute requires the balances contributable from devisees and legatees to be collected by execution. It is now insisted that the present record, negatives a remark made in the former opinion, “ that the action of the executor and of the probate court assumed that the land in dispute had been delivered into the possession of Mrs. Diboll with the executor’s consent. That being so, the proceedings to compel her to*contribute must have been taken under this statute.” In the present finding it is stated, in substance, that neither Mrs. Diboll, nor her grantee, had possession under any express assent or agreement of the executor, and therefore, it is insisted, that the order of August, 1880, was void, [413] and the sale may be regarded as made solely under the license. Neither of these suggestions has any weight. The probate order was the ostensible basis of the sale, and the action of the probate court was had upon the assumption, to be drawn from the action of the executor himself in presenting such a petition, that the estate was in such a shape that he had a right to call on the specific devisees and legatees to contribute. There was-no law requiring such action tobe confined to cases where he had consented to the possession, and no law which made his consent, to such possession, necessary. • But this sale must, in any event, be justified under the order in pursuance of which it was'made. Our former decision was based on the ground, that, while it may have been a valid proceeding in the outset to call for contribution, it was void so far as it authorized a sale of the lands under a license. If void for any other reason, as we do not intimate that it is, it can make no difference in favor of the sale, and cannot be thrown out of the case, when it is the real foundation of the defendant’s title. The fact of the order being void was the basis of our decision before. There were other questions which we did not pass upon before, and do not now, because this sale was utterly void. It is much to be hoped that this controversy will not be disturbed further. The judgment must be affirmed. Morse and Champlin, JJ., concurred. Sherwood, J., did not sit.