of the value of land descended or devised to him, and this was restricted to debts under seal. Later it was provided1 that all interests in land should be assets for the payment of debts, whether by simple contract or under seal, and that the heir or devisee might be sued in equity accordingly by any creditor of the deceased. In this country there is probably in every state a statute making the realty of a decedent liable for his debts as against his heirs and devisees. 20

Under the English statute making the lands of a decedent liable in equity for his debts, the proceeding to subject the land was by a "creditors' bill" in equity, and this mode of proceeding for the purpose is recognized in a number of the states. 21 In most of the states, however, the probate court has full jurisdiction to order the sale of land for the payment of debts, and likewise, frequently, for other purposes, such as the payment of legacies, or in order to make distribution, and the statutes usually provide that such sales shall be ordered on the application of the executor or administrator.22 The length of time after the decedent's death within which a sale of lands for this purpose can be applied for by the personal representatives or the creditors of deceased is in some states fixed by statute. 23 In the absence of statute, it is said that the application must be made within a reasonable time, 24 and some courts have adopted the statutory period in which an action to recover lands is barred, holding that an

19 3 & 4 Wm. IV. c. 104 (A. D. 1833).

20 2 Dembitz, Land Titles, § 150; 2 Woerner, Administration, §§ 463, 490; 11 Am. & Eng. Enc. Law (2d Ed.) 838.

213 Pomeroy, Eq. Jur. §§ 1152-1154; 2 Woerner, Administration, § 463; 11 Am. & Eng. Enc. Law, 1072.

22 2 Woerner, Administration, §§ 463, 464.

23 2 Woerner, Administration, § 465.

24 Liddel v. McVickar, 11 N. J. Law, 44; Rosenthal v. Renick, 44 Ill. 202; Killough v. Hinton, 54 Ark. 65; State v. Probate Court of Ramsey County, 40 Minn. 296; Ferguson v. Scott, 49 Miss. 500. See Bindley's Appeal, 69 Pa. St. 295.

application thereafter is, in the absence of special circumstances, too late.25

A sale of real estate to pay debts is ordinarily authorized only when the personal estate is insufficient for the purpose, and that such is the case must appear from the bill or petition for sale in order to give the court jurisdiction. In some states proceedings for sale by an executor or administrator are regarded as adversary to the heirs or devisees, so that a failure to give the notice to the latter as required by statute renders the sale void. In other states they are regarded as proceedings in rem, and so valid, though no notice is given.20 In a number of states the failure of the executor or administrator to give bond before making sale as required by the statute is regarded as absolutely invalidating the sale, and sometimes such effect is given to a failure to make the proper oath.27

The sale must comply not only with the requirements of the statute, but also with the terms of the order for sale. The sale, when made by the executor or administrator, must, in most states, be confirmed by the court in order to have any effect whatever in passing title, since the personal representative, not expressly empowered to sell by the terms of the will, is regarded as the instrument of the court, and the sale, to be valid, must be adopted by the court as its own act.28 After the sale is confirmed, the executor or administrator, still acting as the instrument of the court, is required to make a conveyance of the land to the purchaser,

25 Ricard v. Williams, 7 Wheat. (U. S.) 59; Wingerter v. Wingert. er, 71 Cal. 105; Rosenthal v. Renick, 44 Ill. 202; Bozeman v. Boze man, 82 Ala. 389; Sumner v. Child, 2 Conn. 607.

26 2 Woerner, Administration, § 466; Kleber, Vold Judicial Sales, §§ 72, 156.

27 2 Woerner, Administration, § 472; Kleber, Volu Judicial Sales 88 253, 254, 316, 317.

28 Kleber, Void Judicial Sales, §§ 1-4, 381.

and, until such conveyance is executed, the purchaser has an equitable title merely.29

§ 463. Sales of lands of infants and insane persons.

The extent to which a court of equity has inherent power to sell the land of an infant for his benefit seems to be involved in considerable doubt; but the question has lost its importance, owing to the passage of acts, in most, if not all, of the states, authorizing such sales either by courts either of equity or probate jurisdiction. These sales are usually conducted by the guardian of the infant, under the direction of the court, the proceedings being generally similar to those in the case of sales of decedents' lands. The application for the sale is usually required to be made by the guardian, but in some states the statute authorizes it to be made by parents or other persons interested in the infant's welfare.30

The lands of persons non compos mentis may likewise be sold under the direction of a court by force of statutes to that effect in all or in most of the states, and occasionally such power has been asserted by courts of equity apart from statute. The sale is usually made by the committee or guardian of the lunatic acting as an instrument of the court.31

464. Sales and transfers for purpose of partition.

Proceedings by one concurrently interested in land with others, to obtain a partition or sale of the land, have previously been discussed.32 In this country the jurisdiction of proceedings for partition is usually determined by the stat ute, and there are in many states special provisions for

29 2 Woerner, Administration, § 480.

80 Woerner, Guardianship, §§ 68-78; 2 Dembitz, Land Titles, § 151; 3 Pomeroy, Eq. Jur. § 1309; Kleber, Void Judicial Sales, §§ 93, 157, 234-236.

31 Woerner, Guardianship, § 148; 2 Dembitz, Land Titles, § 152. 2 Ante, § 175.

the partition of land belonging to a decedent in the probate court, or for a sale for the purpose of partition.33

As before stated, a partition proceeding is available only in the case of concurrent interests in land,34 and consequently cannot be employed in order to apportion the land, or to procure a sale, when the persons interested in the land own, not concurrent, but successive, interests, as when they are tenants for life and in remainder, or one is tenant in fee simple, subject to an executory limitation in favor of the other. In a few states there is a provision for a sale in such case under the direction of a court of equity.3

$465. Equitable decrees transferring title.

35

The court of chancery in England always acted in personam, and not in rem, and consequently, in adjudicating rights of the different parties to a proceeding concerning land, it did not, by its decree, undertake to transfer the title from one to the other of such parties, but gave relief by ordering one party to make a conveyance, cancel an instrument, or do other acts so as to establish and perfect the rights of the respective parties as adjudicated. This principle of action on the part of courts of equity has, however, been changed by statute in many states of the country, so that, instead of requiring the parties to carry out the decree, the court itself does so, acting through a commissioner or other officer, and, under some statutes, the decree alone, without any further action, is sufficient to transfer the title. As regards land outside the jurisdiction, however, the court must still act in personam.80

While a judgment in an action concerning land of a strict

83 Freeman, Cotenancy, §§ 550-564.

84 Ante, § 175.

36 2 Dembitz, Land Titles, § 156.

so Pomeroy, Eq. Jur. §§ 134, 135, 170, 1317.

ly legal character, such as ejectment, or the old real actions, or the statutory "trespass to try title," is usually decisive of the rights of the parties thereto in regard to the ownership of the land, as between themselves, it cannot be regarded as transferring the title in any sense, but merely decides what effect is to be given to previous transfers.

466. Adjudications of bankruptcy.

The present bankrupt act37 provides that the trustee of a bankrupt, upon his appointment and qualification, shall be vested by operation of law with the title of the bankrupt, as of the date he was adjudged a bankrupt, to all property which, prior to the filing of the petition, he could by any means have transferred, or which might have been levied upon and sold under judicial process against him. The title to the bankrupt's land, therefore, as well as other property, passes, as it were, by force of the adjudication of bankruptcy, to the trustee subsequently appointed. Previous bankrupt acts, as well as the insolvency statutes of the various states, have contained similar provisions transferring the property of the bankrupt or insolvent to the trustee, for the purpose of distribution among creditors.88

37 Act July 1, 1898 (30 Stat. 565, § 70a).

38 16 Am. & Eng. Enc. Law, 721.

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