
    Jacob Maeck v. Joseph Sinclear.
    Where the levy of an execution fixes, with certainty, the identity of the premises, and by the references, in the return, to deeds on record of the same land, the boundaries may be certainly ascertained, this is a sufficient description.
    Whenever it fully appears, by the probate records, that a sale of land, belonging to an estate, is necessary for the payment of debts, the personal fund being exhausted, the probate court may order such sale, without any settlement with the administrator for that purpose.
    Ejectment, to recover the seizin and possession of one equal undivided fourth part of a saw mill, mill yard, and privileges, situate in Jerico. Plea — Not guilty. Issue to the court.
    On the trial in the county court, the plaintiff, to prove title to the premises, gave in evidence a copy of a deed from Truman Barney to Samuel Sinclear and Joseph Sinclear, dated Mayl4,1811, of all the land and mill privilege in question; a copy of a deed from Joseph Sinclear to Gideon O. Dixon, dated Feb. 8,1821, of an equal undivided half of the same land and mill privilege, and in both of these deeds, the land is described by metes and bounds. The plaintiff also gave in evidence a copy of the record of a judgment, recovered in Chittenden county court, at the March Term, 1829, in favor of one Roswell Butler, (since deceased,) and against the said Dixon, of an execution issued thereon, and of a levy of said execution upon the fourth part of the mill in question, and other lands of Dixon. The defendant objected to the levy, for uncertainty in the description of the mill, land and privileges, levied on, which description is as follows ; — “ The “ following land, situate in Jerico, in Chittenden county, to “ wit; the one equal undivided fourth part of the saw mill “ and mill yard, to the same bounds to which one half of the “ same was deeded by Joseph Sinclear to Gideon O. Dixon, “ on the 25th day of February, 1821, which was recorded 14 “ June 1822, in the fourth book of recording deeds in town “ of Jerico, on 365 page, which mill yard adjoins the road “ leading from Jerico corner to Essex meeting house, and is “ situate on Brown’s river, partly on lot No. 6, and partly on “lot No. 24.” The court overruled the objection, and received the evidence. The plaintiff further offered a copy of the record and proceedings in the probate court, relating to Roswell Butler’s estate, to which the defendant objected, but the court admitted the evidence. From the records of the probate court-, it appeared, that in June, ] 834, the exeeutors of the last will and1 testament of Roswell Butler rendered an account, in the probate court, of their administrar tion, which was allowed by said probate court; that at the time of the allowance of their account, the personal estate, inventoried, was not sufficient to pay the amount assigned to the widow of the deceased, and the sum allowed to the executors against the estate; that the debts, allowed by commissioners, against the estate, exceeded the value of all the real estate, as appraised and inventoried; that'the executors afterwards resigned their trust, and an administrator de bonis non was appointed, to whom, on the 21st of July, 1824, an order issued from said probate court, to sell all the real estate, together with the reversion of the widow’s dower therein, for the payment of the debts due from the estate. It appeared that due notice was given to the creditors and all concerned, of the application for said order, but it did not appear that the administrator de bonis non rendered an account of his administration, before the order to sell issued. Instead of rendering such account, he filed a statement in the probate court, sworn to by him, showing the assets in his hands, the amount of debts due from the estate, and his estimate of the expenses of settling it, which statement the probate court “ ordered to be recorded.” It further appeared that the said administrator had, under said order of sale, sold the premises, sought to be recovered in this action, to Martin Chittenden, and that said Chittenden had deeded them to the plaintiff.
    The county court rendered a judgment for the plaintiff, .and the defendant excepted.
    
      C. Adams, for defendant.
    The levy of the execution, Butler v. Dixon, is bad, as to the Mill, for the uncertainty in the description.
    The description in the levy should be so clear, that the Sheriff can find' the premises without reference to. other description.
    It does not appear by the copy of the probate record, that there had been any decree showing the insufficiency of ffie personal estate, nor any settlement of the administrator’s account, before granting the order.
    
      
      Maeck &r Smalley, for plaintiff'. ' ’
    , 1. Though the officer did not set off the premises by metes and bounds, yet, he refers in his returns, as to the premises levied on, to the boundaries given in a deed of the same premises, between other persons. A copy of this deed was put into the case. The rule, then, that that is certain enough, which can be rendered certain, applies to the plaintiff’s evidence of title. Galushav. Sinclear. 3 Vt. R, 898,
    
      Boylston v. Carver, 11 Mass. 517, is directly in point.
    2. The records of the Probate Court show a necessity of the sale of the real estate.
    3. The defendant, showing no title in himself, ought not to be permitted to question the regularity of the proceedings. Tillinghast’s Adams on Eject. 29, in note.
   The opinion of the Court was delivered by

Collamr, J.

/Title is derived to. the Plaintiff through Roswell Butler, who held by levy of an execution against Dixon; and the first question is on the sufficiency of that levy, The only objection is in relation to tlpe description of the premises. 'Rhe statute provides that the description shffll be •“ by metes and bounds or otherwise, with as much precision as the nature and situation of the property will admit.” This levy was upon an undivided fourth part of a mill, mill-yard, and privilege, probably including water &c, The description should be such as would enable the Court and jury to say it was the same property sued for; such as would enable an officer 'to give possession thereof; and so certain that the debtor, and those claiming under him, could clearly discern what was levied on and what was left, As the Jevy fixes the identity of the property, and by itself and reference to the deed on the public record, in the same town, makes its boundaries certain, as we find, by inspection of the deeds, it is sufficiently certain for all the above purposes, and a satisfactory .compliance with the statute. Boylston v. Carver. 11 Mass. R. 517.

It is next objected, that the title did not legally pass from the estatp ,of Roswell Butler, inasmuch as the probate court, in ascertaining the balance for which a sale of real estate was necessary, made allowances to the administrator de bonis non when no notice was given to the heirs and creditors that any account was to be presented. The probate court has power to grant licence to sell real estate only when, by the record, it appears necessary for the payment of debts, after the personal fund is exhausted.

To have this fully appear, it is generally necessary to have a preparatory settlement, which seems to have been attempted in this case. This is not, however, necessary where enough already appears of record, to show the necessity of a sale. On inspection of the record presented, it appears that one account of the executors had been allowed. The amount to them allowed and the amount assigned to the widow more than exhausted the personal property, included in the inventory; and it is apparent, of record, that, independent of any allowances to the administrator de bonis non, the whole real estate was required to be sold, for the payment of the debts, allowed by the commissioners; and, therefore, such order was authorised by law. This renders it unnecessary to inquire whether the allowance to the administrator was legally made, or whether the defendant has placed himself in any attitude to question its correctness, in this collateral manner.

Judgment affirmed.  