
    Williamson v. Miles, Administrator of Gilbrech.
    Administrators Sales or Real Estate — Venue.—The jurisdiction of the Court of Common Pleas of the county where, letters of administration have been granted, of an application by the administrator to sell real estate situated in another county, is not exclusive.
    Same — Proceedings by an administrator, for the sale of real estate were1 instituted in the Court of Common Pleas of the county in which the land was situated, the heirs of the deceased being residents of that county.
    
      Held, that the court had jurisdiction of the subject matter of the suit, and of the persons of the heirs, though administration had been granted in another county.
    APPEAL from the Clay Common Pleas.
   Elliott, J.

Miles, as administrator de bonis non of Mary A. Gilbrech, filed a petition in .the Court of -Common Pleas of Clay county, where letters of administration were granted him, praying for an order for the sale of real estate in Putnam county, The petition, among other things, alleges that said Mary Gilbrech, in 1858, died seized in fee of the north half of lot 32, in the eastern enlargement of the town of Greencastle, in Putnam, county, in this State, of the probable value of $300; that no personal property liascome into the petitioners hands to be administered; that the indebtedness of the estate is about $250, including the expenses of administration. The names of the heirs, a part of whom are alleged to be minors are stated. The-petitionfurther stated, “ That Henry A. Gilbrech, the former administrator of the estate, on the 4th day of October, 1859, filed his petition in the Court of Common Pleas of said county of Putnam, for the sale of said property, and, by a subsequent order of said court, pretended to sell the same, without appraisement, on the 13th of June, 1860, for $300, to one Abraham S. Squires, and made a pretended deed to said Squires therefor, at the June term, 1860, of said court; that-one Tucker W. Williamson claims title to said property, and holds the possession thereof as the grantee of said Squires. That said pretended sale was, and is, wholly void, for the reason that the Court of Common Pleas of said county of Putnam had no jurisdiction of said petition, the letters having been taken out, and the estate of said decedent being then pending for settlement, in the county of Clay; that there was no appraisement, and -no additional bond filed by said administrator for the sale of said property.” Prayer, that said sale be set aside and the title to the property quieted, and for an order to sell the same for the payment of the debts, &c. Williamson, the purchaser of the lot from Squires, is made .a party. He appeared and- demurred to the petition, but the court overruled the demurrer. He -then filed an answer of four paragraphs. The first was subseqently withdrawn, and is not, therefore, a part of the record.

The>third paragraph alleges, “that on the--day of '•--7, 1860, Gilbrech, the then administrator of said • estate,'.filed his petition in the Putnam Court of Common Pleas,¡the county in which the property is situated, and whore the ¡defendants and heirs then resided, and yet reside, praying for the sale of said real estate; and such proceedings were thereupon had, that, an appraisement having, been duly made and filed, and the said administrator having executed his additional bond, as required by the court, and in pursuance to the statute, an order was granted for the sale of said real estate. That, in pursuance of the order, the administrator sold the same to said Squires for the sum of $850, that being more than the appraised value; that said sale was reported to and confirmed by the court, and the property duly conveyed to said Squires, by the order of the court, and possession given to him under said conveyance. That, on the 7th of June, 1863, Squires contracted and sold said lot to this defendant, Williamson, for the sum of $450, all of which purchase money has been fully paid, and that -he is in possession of the same,” &e.

A copy of the record of the proceedings in the Common Pleas Court of Putnam county, for the sale of the lot, and the report and confirmation of the sale to Squires, &c., is ,filed-with, ¡and made a part of, the answer.- By this record, it appears that the proceedings were all regular, and in strict conformity to the statute;' that an appraisement of the lot was properly made and filed, and a bond given by the administrator, with sureties, in a penalty in double the appraised value of the lot, which was approved by the court; that an order was made directing it to be sold at private sale; that it was sold in strict compliance with said order, and for fifty dollars more than the appraised value. A demurrer was sustained to this paragraph of the answer, to which Williamson excepted.

On the final hearing, the court decreed that the sale to Squires, and the title of Williamson, be declared void and of no effect, and that Williamson be forever enjoined from in any manner setting up or claiming any title to the lot. An order was also granted for the sale of the lot, for the payment of the debts of the decedent.

The rulings of the court below, in overruling the demurrer to the petition, and in sustaining the demurrer to the third paragraph of the answer, present the questions for our consideration.

Passing by the question raised by the demurrer to the petition, we will examine the ruling upon the demurrer to the third paragraph of the answer, by which the whole merits of the controversy are more fully presented.

Two questions are presented and discussed by counsel on either side. They are stated thus:

First. Had the Court of Common Pleas of Putnam county jurisdiction to order the sale of the real estate in controversy ?
Second. The sale having been made by order of the Common Pleas Court of Putnam county, on the application and petition of Gilbrech, the former administrator of the estate, and the purchase money having been received by him, is the- administrator de bonis non estopped from denying the validity of the sale, and especially, without having first refunded, or offered to .refund, the purchase money paid by Squires ?

The letters of administration were granted to Gilbrech, the original administrator, by the Court of Common Pleas of Clay county. The lot is situated in Putnam county, and was sold on the petition of Gilbrech, by order of the Coui’t of Common Pleas of the latter county, and it is insisted by the appellee that, in such cases, the court granting the letters of administration has exclusive jurisdiction in ordering the sale of real estate for the payment of the dececlent’s debts, and that the sale of the lot to Squires is therefore void, for want of jurisdiction in the court gz'anting the order-.

The question is one of great practical importance, and has been one of much doubt and perplexity, both to the courts and bar of the State. Statutory provisions may be found from which inferences may, perhaps, be drawn on either side, yet there is no positive statute on the subject.

If it be legitimate, under such circumstances, to examine the reasons that should govern in fixing the rule, to aid us in determining the construction that should be given to the provisions of the statute, from which, of necessity, a rule must be dz-awn, the arguments will be found equally conflicting. On the one side, it may be desirable that the couz-t of the county where administration is granted, and in which the estate must be finally settled, should have the evidence upon its owzi records of the disposition of the estate, both z-eal and personal, administered on or sold by the administrator-, as a means of guarding the assets from waste, and compelling their proper and prompt application to the purposes of the trust. It would, ordinarily, also, be more convenient to the administrator, and frequently less expensive to the estate, that the application should be made to the court where the letters of administration are granted. "Whilst, on the other hand, it is perhaps equally desirable that the record of all proceedings and decrees, by which real estate is directed to be sold and the title transferred, should be found in the county whei-e the real estate lies; and this would he more nearly in accordance with the principle, that governs the venue in actions on kindred subj ects. "We must therefore look to the provisions of the statute, alone, for a solution of the question.

In Ex parte Shockley, guardian, 14 Ind. 413, Shockley was appointed guardian of his wards by the Court of Common Pleas of Hancock county, and filed his petition for the sale of lands belonging to his wards, lying in Bartholomew county, in the Court of Common Pleas of the latter county. The court refused to entertain jurisdiction of the proceedings, on the ground that the Court of Common Pleas of Hancock county, by which the letters of guardianship were granted, had exclusive jurisdiction in the premises, and the case was affirmed on appeal to this court. The opinion of the court in the case, pronounced by Worden, J., is founded, principally, on the construction placed on sec. 4 of the act establishing Courts of Common Pleas, which reads thus: “ The Court of Common Pleas, within and for the county, or counties, for, which it is organized, shall have original and exclusive jurisdiction in all matters relating to the probate of last wills and testaments, granting of letters testamentary, of administration, and of guardianship ; of all matters relating to the settlement and distribution of decedents’ estates, and the personal estates of minors, all actions against executors and administrators; to authorize guardians to • sell and convey real estate of their wards; and the appointment of guardians of persons of unsound mind; the examination and allowance of the accounts of executors and administrators, and of the guardians of minors; exeept where, in special cases; concurrent jurisdiction is given by law to some other court.”

However desirable it may be to do so, we cannot concur in the construction given to this section of the statute by this court, in the case referred to. To our minds it seems clear, that the section of the statute just quoted, relates only to the particular class of cases, or the subject matter of actions and proceedings, over which, exclusive jurisdiction is given to the Court of Common Pleas, in- contradistinction to the Circuit or other courts of the State, and has no relation whatever to the venue or particular county in which suits must be commenced. It enumerates the particular causes of action and proceedings which must be prosecuted in the Court of Common Pleas, and not in the Circuit Court, as exclusive jurisdiction of them is given to the former. It designates the Common Pleas as the court in which certain actions must be prosecuted or proceedings had, but it does not relate to the particular county or place where they shall be instituted. It defines the jurisdiction of the court as to the subject matter, but not the territorial jurisdiction for each particular action or proceeding. The next succeeding section, following up the same subject,- serves to confirm and illustrate the view we have taken. It provides that “ The Circuit and Common Pleas Courts shall have concurrent jurisdiction in all actions against heirs, devisees, and sureties of executors, administrators and guardians; in the partition of real estate, assignment of dower, and the appointment of a commissioner to execute a deed on any title bond given by a decedent.”.

It is evident that the 4th section simply defines the particular subjects over which exclusive jurisdiction is given to the Court of Common Pleas, whilst the 5th section enumerates those over which that court and the Circuit Court shall have concurrent jurisdiction. Sections 6 to 10, inclusive-, are also referred to as still further sustaining the construction we have given the 4th section.

Article 3 of the code, under the title of “Actions — where commenced,” 2 GL & H. 56, is in relation to the general subject under discussion, viz: the venue or county in which each particular action must be commenced, and whilst we find nothing in the article decisive of the particular question under consideration, we think that sections 28, 31 and 33 do shed more oí less light- on the subject. -

Section 28 provides that, “Actions for the following causes must be commenced in the county in which the subject of the action, or some part thereof, is situated:

“Jñrst. For the recovery of real property, or of any estate or interest therein, or for the determination, in any form, of such right or interest, and for injuries to real property.
“Second. For the partition of real property.
“ Third. For the foreclosure of a mortgage of real property.”
See. 31. “An action to establish or set aside a will must be brought in the county in which the will, if valid, ought, according to law, to be proved and recorded.”
Sec. 33. “ In all other cases the action shall be commenced in the county where the defendants, or one of them, has his usual place of residence,” &e.

The act providing for the settlement of decedents’ estates authorizes the executor or administrator to petition “the court having jurisdiction ” for an order to sell real estate for the payment of debts, but it does not define or indicate in what county the petition shall be filed.

Whilst the practice has not been uniform under our present statute, it is believed that in much the greater number of cases, where letters testamentary, or of administration, have been granted in one county, and the land sought to be sold for the payment of the decedent’s debts lay in another county, the proceedings for such sale have been instituted in the county where the letters testamentary, or of administration, were granted.

It is to be regretted that a question involving so many titles to real estate should have been left so long in doubt and uncertainty, for the want of a definite legislative enactment.

After a careful review of all the statutory provisions to which we have been referred, or which we have been able to find, we do not think that exclusive jurisdiction, in such eases, is conferred by statute, either upon the court of the county where the letters are granted, or where the land is situated. In other words, the applications for such sales are not rendered exclusively local. "While, therefore, we do not feel authorized, in view of the statute, and of the long and very general practice under it, of instituting such proceedings in the county where the letters testamentary or of administration are granted, to deny the jurisdiction of the court of such county, in that class of cases, we, at the same time, find nothing to justify us in holding such jurisdiction to be exclusive.

Williamson and Maggy, for appellant.

E. Miles and E. A. Mavis, for appellee.

In the case at bar, the proceedings for the sale of the lot were instituted in the Court of Common Pleas of the county in which it was situated. The heirs of the decedent, it is alleged, also resided in that county, and were duly notified of the pendency of the proceedings. Under these circumstances, we hold that the court had jurisdiction of both the subject matter of the petition, and of the persons of the heirs, and hence the sale and conveyance to Squires was not a nullity, and the court below therefore erred in sustaining the demurrer to the third paragraph of the answer.

The conclusion at which we have arrived upon the first question presented, renders it unnecessary that we should examine the second.

The judgment and decree of the court below is reversed, with costs, and the cause remanded, with instructions to that court to overrule the demurrer to the third paragraph of the answer, and for further proceedings not inconsistent with this opinion.  