Campbell, Appellant.

ments or hereditaments, or of any right thereto, or entitled to any interest therein, in fee simple, or for the life of another, not having lawfully devised the same, they shall descend, subject to his debts, in manner following," etc. By section 12, of the same chapter, it is provided, that nothing therein contained shall affect the title of a widow as tenant in dower. The statute nowhere authorizes the administrator to take possession of the real estate to the exclusion of the heirs. If there be heirs, he cannot interfere with the lands any farther than it may be necessary for the purpose of making an inventory and appraisal of the estate, real and personal; for the care and disposition of the personal property; and for the sale of the real estate, when it is found necessary for the payment of debts, etc. conclude, consequently, that the admeasurement and assignment of dower are proceedings which concern the widow and heirs alone.

We

Our statute has modified the common law, so far only, as to authorize the judge of probate of the proper county, to assign dower, if the heir or tenant in possession neglect or refuse to do so, instead of driving the widow to her writ of dower.

Our probate act is borrowed from Massachusetts; it is

also substantially like that. of New York, so far as it [147] respects *the particular question we are now consider

ing. The statutes of both those states, like our own, do not require notice to be given to administrators, of the application to the judge of probate for the assignment of dower, or of the time of the admeasurement by the commissioners, or of the confirmation, by the probate court, of their return. And I have been unable to find any case in either of the states mentioned, in which such notice was adjudged necessary. Notice to the heirs, however, or the tenant in possession, of all the proceedings, is requisite in both.

In those states, too, the administrator is authorized to sell

Campbell, Appellant.

real estate for the payment of debts, when the personal effects are insufficient, in the same manner as in this state prior to our statute of 1843.

Suppose the heir should set out the dower to the satisfaction of the widow, as he may do, that would be good, certainly, as to all except the creditors, and equally so as to them, until it should be found necessary to sell land for the payment of their debts. The administrator, clearly, would not be entitled to notice of such proceeding; and, the assignment of dower, by the judge of probate, is substituted for setting it out by the heir, when he neglects to do it. Neither affects, in the slightest degree, the rights of creditors.

At common law, the heir can assign dower without resorting to any court; and the right is not impaired by any provisions of the statute for its admeasurement. The proceedings by petition before the courts, for the admeasurement and assignment of dower, cannot affect or prejudice the right to dower, or the legal or equitable bar to it. Those rights, if litigated, remain open for inspection in the ordinary course of justice: Lambert on Dower, p. 93.

By our statute (R. S. 1838, pp. 311, 312, 313), the administrator is authorized to sell a part, or the whole of the *real estate, if necessary, for the payment of [148] debts, upon obtaining license therefor; but no such

license shall be granted until fourteen days' notice of the petition, and of the time and place of hearing the same, shall have been given to all persons interested in the estate, that they may appear to show cause why license to sell, should not be granted. The notice here provided for, is for the protection of the rights of the widow and heirs; and they may prevent the sale, by giving bonds for the payment of the debts, or showing any sufficient cause why the same should not be made. If, however, no bond be given, and no good cause be shown against the sale, the administrator shall be licensed to sell a part or the whole, etc. Where, after dower

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Campbell, Appellant.

has been assigned, there are lands of the deceased remaining sufficient to pay all the debts, creditors can be in no way affected by the assignment of dower. But, where it is found necessary to sell the whole of the real estate, and the whole is inadequate to pay all the debts, as the sale must be made subject to the widow's right of dower, the creditors are, or may be affected by the proceedings assigning dower. And it would seem that the administrator who represents the creditors, ought, in such case, to be notified of such proceedings, upon the general principle that parties to be affected by legal proceedings are entitled to notice.

But as the Revised Statutes (of 1838) do not abridge the rights of the widow, or change the mode of enforcing them, except to provide additional facilities therefor, by application to the probate court for the assignment of her dower; and, as they contain no provision for notice to the administrator, I incline to think that none is requisite, even under those statutes.

The probate act of 1840, however, it seems to me, [149] puts *this question entirely at rest. That act, after making sundry amendments to the Revised Statutes in relation to sales of real estate by administrators, goes on to provide (section 13, p. 63), that "the executor or administrator shall, in the first place, pay out of the moneys arising from such sale, the charges and expenses thereof. They shall next satisfy any claim of dower which the widow of the testator or intestate may have upon the land so sold, by the payment of such sum in gross, to be ordered by the judge of probate, as shall be decreed, upon the principles of law applicable to annuities, a reasonable satisfaction for such claim, if the widow shall consent to accept such sum in lieu of her dower," etc.

The next section provides, that "if, after reasonable notice for such purpose, no such consent be given, the judge of probate shall set apart one-third part of the purchase money to

Spafford v. Beach.

satisfy such claim, and the executor or administrator shall invest the same in permanent securities, on annual interest, which interest shall be paid to the widow of the testator or intestate during her life."

Under this law it was that the rights of the demandant in this case became fixed; and it is most obvious that, whatever proceedings may have been had, in the setting out or assigning of dower, they could in no way prejudice or affect the rights of creditors, or the administrator; consequently, neither could insist upon notice of such proceedings.

The decree of the probate court must be affirmed.

Peck argued the cause for the appellant, and O. Hawkins

contra.

*Spafford and Tileston v. Beach.

A levy on real estate is not a prima facie satisfaction of the debt. (a)

[150]

An alias fi. fa, issued on return of a previous execution levied upon real estate which remained unsold for want of bidders, is irregular merely, but not void.

So, also, non-compliance by the sheriff with the requirements of the statute in regard to the levy, advertisement, or sale of real estate, is mere irregularity. (b)

And such irregularities must be complained of in due time, by motion, or they will be waived.

A motion to set aside an execution and proceedings under it for irregularity merely, made five years after sale of real estate by virtue of the execution, is too late. (c)

The title of a purchaser of real estate sold on execution, is not affected by the insufficiency of the sheriff's return to the execution. The sheriff's certificate of sale and deed, and not his return, are the evidence of such title.

(a) See F. & M. Bk. v. Kingsley, post, 379; Thurber v. Jewett, 3 Mich., 302, 303; Henry v. Gregory, 29 Mich., 68, 69.

(b) See Barnes v. Baker, 2 Mich., 379.

(c) See People v. Judges of Calhoun Circuit Court, 1 Doug., 417.

Spafford v. Beach.

Case reserved from Oakland circuit court. Spafford and Tileston obtained a judgment in the circuit court against Beach, on which a fi. fa. was issued November 14, 1837; and, at the May term, 1838, the fi. fa. was returned levied upon real estate of the defendant, which had been advertised for sale, and remained unsold for want of bidders. In October, 1839, an alias fi. fa. was issued on the same judgment, by virtue of which other real estate of the defendant was levied upon, and, in March, 1840, sold to the plaintiffs. The sheriff made return of his proceedings on the alias; but it did not appear therefrom, whether notice of the levy was given to the defendant, or to the person in possession of the property; when or what manner notice of sale of the property was given; whether notice was given of postponements of the sale which appeared to have been made; or where the sale took place; and it appeared that the property con

sisted of several distinct parcels which were sold [151] together *for a gross sum, and not separately. The return also omitted to state that there were no goods and chattels of the defendant whereon to levy.

In January, 1845, the defendant moved the circuit court to set aside the alias fi. fa. and all the proceedings under it, and in support of the motion,

A. D. Fraser (with whom was Geo. W. Wisner) contended that the alias fi. fa. was irregular and void for the following reasons:

1. Because it was issued while there was a subsisting levy undisposed of, by virtue of a former execution on the same judgment: 1 Ohio, 214; 2 Id., 224; Cro. Eliz., 237; 1 Blackf., 289; 1 Salk., 322; 2 Ld. Raym., 1072; 4 Mass., 403; 1 Johns., 290; 7 Id., 428; 12 Id., 207; 6 Mod., 297, 300; 2 Tidd's Pr., 937; 2 Bac. Abr., 720; 5 Hill, 572; 7 Cow., 14; 16 Mass., 63; 3 Cow., 30; 9 Mass., 142; Grah.