Erck v. Erck ( 1901 )

Wilkes, J.

This is a- bill by the administrar trix of Frank Erck to sell ■ a sufficiency of • his real estate to pay debts.

It was filed in the Probate Court of .Shelby County, where the real estate, all lies, and where the administrtion is being ' conducted. There were five separate pieces or parcels of .the. real estate, two of which were set apart to the widow as dower and homestead by said Probate Court. Of the remaining parcels two were vacant lots, and the other an undivided one-fourth interest in a storehouse on Front Street, in the city of kiem-phis. The bill which ■ contains the allegations usual in such cases was filed, against the children and heirs of the Intestate, and their guardian, and against her creditors and the owners in common of the other interest in the storehouse. The latter parties filed answers and demanded proof of all material matters, and so with the guardian; pro confesso was taken against the creditors.

An order of reference was made' to report the assets of the estate and its debts, and whether the personal assets had been exhausted in the payment of debts, also what real property belonged to the estate, and whether it would be necessary to sell it all or any part of it to pay debts, and if the latter, what portion could be sold with the least injury to the personal ■ representatives and heirs.

What is called an insolvency proceeding had already been had in the ■ Probate Court, ' to which the heirs and the creditors named ' were parties, and in that proceeding the depositions -of the ad-ministratrix and the guardian were taken in regard to the debts and personal assets of the estate, from which it appeared that there was' only $6.50 of personal estate and about $1:635.50 of debts, not including costs and charges, which would make a total of about $1,800.

This record was referred to and- used as' evidence on the reference. The testimony of real estate brokers was also taken under the reference, to show the location and value of the real estate left after assigning dower and homestead.

Erom this testimony it appeared that the real estate was unimproved, except the one-fourth'. interest in. the storehouse, and that the real estate outside of the undivided interest was not of value sufficient to satisfy the debts, and that the undivided interest was worth $7,500, and that it was to the interest of the heirs and persons interested in the estate to sell this undivided interest and retain the vacant lots, and it was also recommended that the surplus from the sale he applied to improving the vacant lots.

The parties owning the remaining undivided interest in the property excepted to the report. No exception was filed by the guardian of the minors, nor was any exception tiled by the creditors. The exceptions were overruled, and report confirmed, and the sale of the undivided interest was directed, and' it was- sold for $7,750. Chas. M. Erck, one of the tenants- in common, owning one-fourth of the same property, became the purchaser.

The purchaser then filed a petition to set aside the sale to himself upon the grounds hereafter stated. This petition was dismissed, and the sale was confirmed, and Erck, the purchaser, has .alone appealed and assigned errors.

It is said the Court erred in looking to the insolvency proceedings to determine whether the land should be sold, and the contention is that the record in that case was not competent, but evidence do novo should have been taken to establish such facts:

We think there was no error in. this. All the parties interested in the land and its sale were parties to that proceeding. The owners of the other interests in the storehouse were not necessary parties to that proceeding nor in the present case are they interested in the question of the amount of the debts or the sale of the real property of the estate to pay them.

So far as the facts shown by this record, extend, those parties were not concerned or interested, and the previous steps taken in the administration of the estate, and upon the suggestion of insolvency, were entirely competent and proper to be used in the present proceeding, as they are all but steps in a proceeding to sell the land and administer the estate. Curd & Wife v. Bonner et al., 4 Cold., 632.

The second assignment is to the report of the Clerk that the undivided interest in the storehouse and lot should be sold instead of the vacant lot.

It is said it is not judicious to sell undivided interests in realty when there is property belonging in its entirety to 'the estate, and that bidders are not so apt to bid. its value for undivided interests as when they are buying the property in its entirety. There are no facts stated to sustain this assignment, but it appears to be an expression of opinion on the part of the counsel. There is no allegation that the price brought w’as not full value, and, as a matter of fact, it was greater than, the valuatipn put on it by expert real estate brokers by some $250 or more. Moreover, it appears that by the estimates the other real estate was not sufficient to .pay the ’debts, and this interest would, in all probability, have to be sold even if the remaining vacant lots were sold.

In addition the tenants in common or any one of them could at pleasure force a sale of the house and lot for purposes of partition. All of these facts show the advisability and necessity for selling this undivided interest in the storehouse.

There can be no doubt of the jurisdiction of the Probate Court of Shelby County to make this sale for the purposes for which it was made. Connell v. Walker, 6 Lea, 709.

It will be noted that the only person appealing and now complaining is the purchaser. We are of opinion that under the proceedings he obtained a good and perfect title and that none of the exceptions taken by him are well made, and the decree of the Court below is affirmed with costs.