The widow of a decedent has a right to have the liens on the lands paid out of the personal estate before the payment of the general debts. State, ex rel., v. Lockhart, 21 Ind. 171; Perry v. Borton, 25 Ind. 274; Hunsucker v. Smith, 49 Ind. 114; Morgan r. Sackett, 57 Ind. 580; Sparrow v. Kelso, 92 Ind. 514; Bowen v. Lingle, 119 Ind. 560.

If the interest of the widow is sold under a mortgage to pay the debts of her husband she is entitled to reimbursement out of the personal estate before payment of general debts. McCord v. Wright, 97 Ind. 34.

2505. (2350.) Liens.-125. If the real estate, or any part thereof, ordered to be sold, shall be incumbered with liens, the court shall, in the order of sale, direct the sale of the real estate to discharge all or any of the liens or subject to all or any of the liens thereon. If sale be made to discharge such liens, the purchaser shall take and hold the real estate freed from such lien, and the lien shall attach to the fund arising from the sale. If the sale be made subject to such lien, the purchaser shall execute his bond, payable to such executor or administrator, with penalty and surety to the acceptance of the latter, conditioned that he will pay and discharge the lien, and hold the executor or administrator, and all others interested in the estate, harmless from all damages by reason of such lien and the claims secured thereby. Upon confirmation of such sale, and assignment by the executor or administrator of such bond, without recourse, to the holder of the lien, the estate shall be discharged from the payment of the debt secured by such lien.

The purchaser of lands sold for the purpose of paying the debts of the decedent, takes the same subject to all liens except those for the payment of which the lands are sold. Louden v. Robertson, 5 Blkf. 276; Foltz v. Peters, 16 Ind. 244; Martin e. Beasley, 49 Ind. 280; Boaz v. McChesney, 53 Ind. 193; Henderson v. Whittinger, 56 Ind. 131; Massey v. Jerauld, 101 Ind. 270; Crum v. Meeks; 128 Ind. 360.

In order to divest the lien of a mortgage, the mortgagee must be a party to the proceeding and the land must be ordered sold to pay such lien. Crum v. Meeks, 128 Ind. 360.

When lands are sold to discharge liens, all the proceeds must be applied on the liens if necessary to satisfy the same. Ryker v. Vawter, 117 Ind. 425.

Taxes accruing on the lands of a decedent before his death should be paid by his administrator. Henderson v. Whittinger, 56 Ind. 131.

The widow of a decedent may sue an administrator for failing to take the bond required by this section when she is injured by such failure. Sparrow v. Kelso, 92 Ind.

514.

The failure of the administrator to take the bond required by this section, does not affect the liability of the purchaser to pay the liens on the lands. Massey v. Jerauld, 101 Ind. 270.

The purchaser of lands will not be permitted to show that it was verbally agreed that he was not to pay the liens on the lands. Moody v. Shaw, 85 Ind. SS.

2506. (2351.) Terms of sale.-126. The court ordering the sale shall specify the terms of sale, but no credits shall be directed to be given for a longer period than eighteen months, except that when the appraisement of the real estate is over five thousand dollars, a credit may be given for a period of not more than three years. If it appear to the court that a private sale of the real estate would be advanta

geous to the estate of the decedent the court may so order, and shall, in such case, prescribe in the order the notice to be given of the sale: Provided, That if the appraised value of the real estate ordered to be sold shall not exceed one thousand dollars, the court may order such sale without giving notice thereof.

(As amended, Acts 1883, p. 158. Ell. Supp., section 396. In force March 7, 1883.) If an administrator receives anything but money in payment for land sold, and does not account for the purchase-money, the purchaser will be liable for the payment of the purchase-price in money. Chandler v. Schoonover, 14 Ind. 324.

2507. (2352.) Platting.-127. The court ordering the sale may, upon the application of the executor or administrator, authorize him, previous to the sale, to lay out all or any portion of the lands into town lots, streets, alleys, and squares, and make the necessary dedication to public use of the streets, alleys, and squares. An accurate plat thereof shall be reported to the court for approval, and, if approved, shall thereupon be acknowledged by the executor or administrator, and recorded in like manner and with like effect as in case of private individuals; whereupon, he shall proceed to sell the lots upon the terms provided in the order of sale.

2508. (2353.) Real estate bond.-128. Previous to making an order for any such sale, the executor or administrator shall file in the office of the clerk of such court a bond, payable to the state of Indiana in a penalty not less than double the appraised value of the real estate to be sold, with sufficient freehold sureties to be approved by the court, and conditioned for the faithful discharge of his trusts according to law.

The failure to give the bond required by this section will not invalidate the sale if the proceeds are properly accounted for. Foster v. Birch, 14 Ind. 445; Dequindre v. Williams, 31 Ind. 444.

The bond given under this section is only to secure the proper discharge of his duties by an executor or administrator in the sale of lands, and in accounting for the proceeds of sale. Worgang v. Clipp, 21 Ind. 119.

If an administrator without an order of court, with the consent of the heirs sells lands to pay debts, and the court then requires the administrator to file a bond to secure the proceeds of sale, the sureties on such bond are liable for the proper application of such proceeds. Fleece v. Jones, 71 Ind. 340.

2509. (2354.) Sale.-129. Every such sale of real estate shall be at public auction, unless otherwise provided in the order of sale. Lands shall not be sold at public vendue for less than two-thirds of their appraised value, unless ordered to be sold subject to liens; in which case, they shall not be sold for less than two-thirds of the appraised value after deducting the liens. Sales of lands at private vendue shall not be for less than their appraised value, except in cases of sale subject to liens; wherein the sale shall not be for less than the appraised value, after deducting the amount of the liens.

False representations made by an administrator on the sale of lands as to incumbrances thereon, will not be a defense to an action for the purchase-money. Riley v. Kepler, 94 Ind. 308; West v. Wright, 98 Ind. 335.

If the executor or administrator purchases lands at sales made by him, the heirs may have the sale set aside on payment of the purchase-money and the value of the improvements made by the purchaser. Shaw v. Swift, 1 Ind. 565; Doe v. Harvey, 3 Ind. 104; Morgan v. Wattles, 69 Ind. 260; Potter v. Smith, 36 Ind. 231.

On application to set the sale aside in such a case, the court may order the lands resold. Martin v. Wyncoop, 12 Ind. 266.

Such an action must be brought within fifteen years from the time the action accrues. Potter v. Smith, 36 Ind. 231.

The heirs are the only persons who can make objections when the executor or administrator becomes the purchaser of the lands. Carter v. Lee, 51 Ind. 292; Murphy v. Teter, 56 Ind. 545.

The purchaser of lands is not entitled to the crops growing thereon planted after the death of the decedent. Barrett v. Choen, 119 Ind. 56.

Failure to comply strictly with the statute will not render the proceedings subject to collateral attack. Spaulding v. Baldwin, 31 Ind. 376.

2510. (2355.) Notice of sale.-130. In case of sale of real estate at public auction, the executor or administrator shall give four weeks' notice of the time, place, and terms of sale, by publication in some public newspaper, if any, published in the county in which the real estate is situate, and by posting up notices thereof in at least five public places in such county, three of which shall be in each township in which real estate to be sold may be situate. If the real estate or any part thereof shall be ordered to be sold subject to any lien, such fact and the particulars of the lien shall be stated in the notice.

2511. (2356.) Purchaser's notes-Certificate of sale.-131. Upon such sale being made, such executor or administrator shall take from the purchaser promissory notes for the purchase-money, with sufficient surety, waiving recourse to the valuation or appraisement laws of this state, and shall also execute to such purchaser a certificate of the sale of such real estate. Such notes shall be drawn according to the terms of the sale prescribed by the court, and shall bear six per cent. interest from date. If the real estate be sold subject to liens, the purchaser shall execute bond as herein before provided.

If anything but money is received in payment, and the purchase-money is not accounted for, the purchaser will be required to pay the purchase-price in money. Chandler v. Schoonover, 14 Ind. 324.

Irregularities in a sale will not avoid the same where the purchase-money is paid and properly applied. Dequindre v. Williams, 31 Ind. 444.

2512. (2357.) Report-Confirmation-Conveyance.-132. Such executor or administrator shall make return, under oath, of his proceedings in the premises, at the next term after such sale, to the court granting the order; and if such court be satisfied therewith, it shall confirm the same, and direct such executor or administrator to execute a conveyance to such purchaser of such lands or his assignee; but, upon the delivery of such conveyance to such purchaser or his assignee, the latter shall execute and deliver to such executor or ad

ministrator a mortgage upon such premises, according to the terms of the sale, the expense of making which mortgage and the recording thereof shall be paid by such purchaser or his assignee; which said mortgage, such executor or administrator shall cause to be recorded forthwith in the proper record of deeds of such county; and such certificate of sale, upon the delivery of such conveyance, shall be handed over to such executor or administrator; and such notes shall be retained by him, if the same are approved by the court.

2513. (2358.) Sale, when vacated-Re-sale.-133. But if such court shall be satisfied that such proceedings were unfair; or that the sum for which the real estate or any part thereof was sold is greatly disproportioned to the real value thereof; or that a sum exceeding such sum at least ten per cent. exclusive of the expense of such sale, can be obtained therefor, the court may vacate such sale, in whole or in part. Or if it shall appear that the sureties taken on the notes for the purchase-money are insufficient, such sale shall not be confirmed until additional surety, to the satisfaction of the court, be given; and if such purchaser fail to give such surety within the time required by the court, the sale, as to such purchaser, shall be vacated. When any such sale, in whole or in part, shall be vacated, the court shall direct another sale to be made, under the same regulations governing the first order and sale as to the real estate necessary to re-expose to sale. This section applies to private sales of personal property made under an order of court. Williams v. Perrin, 73 Ind. 57.

If an executor or administrator colludes with a purchaser so as to prevent competition at the sale, and the land is sold for less than its value, the sale will be set aside. Jones v. French, 92 Ind. 138.

When a sale is set aside a good faith purchaser will have a lien on the land for his purchase-money, when the same has been properly applied. Jones v. French, 92 Ind.

138.

2514. (2359.) Sales under will.-134. When real estate or any interest therein is devised by the will, or directed to be sold for the payment of debts or legacies, the executor shall proceed to dispose of the estate, and apply the same according to the provisions of the will. 2515. (2360.) Sales under will.-135. When real estate shall have been devised, as mentioned in the last preceding section, it shall not be necessary for the executor or administrator with the will annexed to file a petition or procure an order of court for the sale of the real estate. Unless different provision be made in the will touching the manner of the sale, it shall be governed, as to the inventory and appraisement of the real estate, notice and terms of sale, report and conformation thereof and deed, by the provisions in this act contained in reference to the sales of real estate by administrators for the payment of debts. Such sale, in the absence of directions in the will, may be at public or private vendue, in the discretion of the executor or administrator with the will annexed; and in case of private sale, notice thereof shall be given as in case of public sale, unless the appraised value of the real estate shall not exceed one thousand dollars, in which case the sale

may be made, in his discretion, without notice; and such sale, if at public vendue, shall not be for less than two-thirds of its appraised value, and, if at private vendue, for not less than the appraised value thereof.

A mere naked power or direction given by will to an executor to sell lands does not vest any title to the lands in the executor. Doe v. Lanius, 3 Ind. 441; Thompson v. Schenck, 16 Ind. 194; Brumfield v. Drook, 101 Ind. 190.

When a will confers upon an executor power to sell and convey lands, such executor may sell and make conveyances without applying to the court for an order of sale. Munson v. Cole, 98 Ind. 502; Davis v. Hoover, 112 Ind. 423.

The making of certain items charges upon devised lands, or directing that lands be sold for the payment of debts, will not authorize an executor to sell such lands without an order of court. Duncan v. Gainey, 108 Ind. 579.

If lands are improperly sold without an order of court, and the purchase-money is applied to the payment of debts, the purchaser becomes the equitable owner of such debts. Duncan v. Gainey, 108 Ind. 579.

2516. (2361.) Sales under will.-136. When any real estate or any interest therein is given or devised, by any will legally executed, to the executors therein named, or any of them, to be sold by them, or any of them; or where such estate is ordered by any will to be sold by the executors, and any executor or executors shall neglect or refuse to take upon him or them the execution of such will, then all sales made by the executor or executors who shall take upon him or them the execution of such will shall be equally valid as if the other executor or executors had joined in such sale.

Each executor is only liable for the assets which come into his hands. Call v. Ewing, 1 Blkf. 301.

The acts of each joint executor or administrator are deemed the acts of all and are valid. Herald v. Harper, 8 Blkf. 170; Long v. Rodman, 58 Ind. 58.

[Acts 1885, p. 40. In force March 5, 1885.]

2517. (E. S. 419.) Commissioner's sales legalized.-1. In all cases in which real estate belonging to any decedent has been sold under an order of any circuit court, upon the petition of an administrator or executor, for the payment of debts, or pursuant to the provisions of a will, and the proceedings upon such petition, and in making such sale and in the confirmation thereof, and in making conveyance to the purchaser, have been, in all respects, regular, except that the sale was made by a commissioner appointed by the court, instead of the execu tor or administrator, and the proceeds of such sale have been fully paid over and accounted for to the proper person or authority, such sale shall not be deemed void by reason of having been made by such commissioner, but the same is hereby legalized, and the deed made in pursuance thereof shall be as effectual to pass title as if such sale had been made by the administrator or executor: Provided, however, That this act shall only apply in cases where, at the time of its taking effect, the title to said real estate would be, but for such sale, still vested in persons who were parties to the proceedings under which such sale was made, their heirs, devisees or voluntary grantees.