have applied to such confiscation of a foreigner's property found in this country?

If heirs, after the sale of land to satisfy mortgage creditors intervening before sale, can ever get back the land, may not Benjamin's heirs do so, after the sale of his land by the defaulted mortgage creditor, Micou? If not, why not? The only difference between the rights of the two sets of heirs is that, in the first case the mortgages were foreclosed at the proper time, in compliance with the act of Congress, in the Federal court having exclusive original jurisdiction; while, in the second case, the heirs of Micou foreclosed too late, (being after confirmed default,) in a jurisdictionless State court. Both mortgages were in fee; both originally underreached the full property hypothecated: whence comes it that the title of the purchaser at the sale to satisfy Micou's mortgage is better than that of the purchaser at the sale to satisfy a rightfully foreclosed mortgage? Was it unlawful for intervenors to comply with the law in the confiscation proceedings? Was it lawful for Micou to contemn the law, and seek forfeited rights in a court without jurisdiction, after having been defaulted in the Federal court which had exclusive original jurisdiction?

It seems, therefore, that the cases cited to sustain the reasoning on Marcuard's claim, are unavailable, even if they had not been overruled by subsequent decisions, including the body of the opinion in the case in which that intervening claimant had appeared, and the affirmance therein of the decree res adjudicata quoad omnes.

Besides, the dictum, (the reasoning not applying to the affirmance of the decree respecting the interventions,) seems in conflict with the plain provisions of the statute authorizing interventions, and to the judicial interpretations of the statute, previously made;1 and it has since been overruled. 2

It is safe to say that a lien holder who brings himself within the statute, has the right to intervene and assert his claim; and that the courts, including that of the highest resort, will accord him the remedy.

The Sallie Magee, 3 Wall. 451; The Hampton, 5 Id. 375.

2 Semmes v. United States, 1 Otto 21.

§ 563. The Requisites if All are to be Concluded. A probate proceeding, to be in rem, must possess all the characteristics and embrace all the requisites of that form of action. There must necessarily be a res, custody of the res, right to pro

ceed against it, a competent forum, allegations equivalent to an information, notice to all interested, a hearing, a finding of facts, an order, judgment or decree, a sale, and a confirmation or homologation, before the "new title paramount" can be evolved from probate proceedings.

The condemnation and sale, of a decedent's estate, to pay debts of his succession, may contain all these requisites. The statute requirements differ in different States. To pursue the remedy to the final result of " title good against all the world," there must be general notice.

§ 564. The Seizure, Lien, Information, Notice. When probate jurisdiction to proceed in rem has been conferred by law through any form of expression, and when the usual course of procedure has been adopted, we find the characteristics of the actio in rem, as follows:

The res is the decedent's estate.

The seizure is usually obviated by the fact that the administrator of the estate becomes the custodian by virtue of his office; and there is no proceeding in rem, in admiralty or at law, where seizure would be necessary when the res is already in court. But should the estate be in the adverse possession of another, it would be necessary for the administrator to gain possession; necessary that the estate should be in court, in order to give the probate jurisdiction over it.

The jus ad rem is in the creditor; for, though the debt may have been an ordinary one, merely personal, before the death of the decedent, it did not so descend to the heirs, since, aside from the property, the heirs are not debtors, unless they have accepted the succession unconditionally. Upon the death, the debts, previously a personal obligation, become immediately a property obligation, with all the force of a lien upon the decedent's estate. No person thereafter owes any debt, but the estate owes it; and the heirs take so much as remains after the satisfaction of the debt.

The information's equivalent is found in the statement of the debts, the petition for their allowance and the petition for the sale to pay the debts, with description of the property to be sold, etc. Such papers are usually presented by the adminis

trator, whose duty it is to pay all just debts under the order of the court; but, should he not admit any particular debt, who would be the instigator of the proceeding against the property to satisfy that debt? The denied creditor, of course. If all debts were denied, all creditors would be likely to move the court; therefore the libellant's equivalent is the creditor, acting directly, or through the administrator. If the latter has placed all the creditors on his bilan, with the correct amount due each by the estate, the necessity of their moving the court is obviated; but since, in case of his neglect or refusal to do so, they have the right to apply to the court to make him do it, they evidently are the real parties in action against the res. The administrator represents the estate, but there is no inconsistency in his admission of the just indebtedness and thus obviating the necessity of the appearance of the real lien holders as actors against the res through him.

Notice to all persons interested to oppose the allowance of the creditors' claims against the res, must be duly given by monition or publication, since personal citation on all the world is impossible. Opportunity for opposition to the tableau must be amply afforded, since it is judicially impossible to divest all persons of their rights without a hearing. In the absence of notice, therefore, the decree cannot be res adjudicata quoad all the world, nor can the new title paramount be conveyed to the purchaser at the sale.

§ 565. The Hearing, Finding, Condemnation, Etc. The hearing is had whenever there is opposition to the allowance of the credits placed upon the tableau; or when some omitted. creditor applies to have his claim put thereon: otherwise, there is no need of trying contradictorily the validity of the admitted claims, as, indeed, there would be no such need in any proceeding against an indebted thing should the indebtedness be admitted by a competent representative of the thing, all other persons having been defaulted. The formal default is not usual in probate proceedings; and the failure of the statutes to require it does not take from such proceeding the character of being in rem, when all the essentials appear, and when there is a virtual default.

The finding of the facts is the ascertainment of the indebtedness, either from the admission of the administrator representing the res by placing the amounts due the creditors on the tableau, or by other proof when the law requires it—always by other proof when there is opposition to the tableau, and when the fact appears that some credit had been wrongfully omitted or wrongfully allowed by the administrator.

The relative condemnation of the res, as an indebted thing, is found in the judgment homologating the account, and decreeing the estate to pay, and ordering the sale. It is frequently found before the homologation of the account, as when the estate is condemned to be sold upon proof that the debts as a whole require the order of sale to convert the estate to cash for the purpose of distribution when the tableau shall be approved.

The distribution of the proceeds among the creditors, according to their rank, follows as in any case in rem; the remnant is paid over to the heirs, as surplus proceeds are paid over to the owners of any res condemned for debt.

The confirmation may be directly made by the court, which is usual in probate proceedings. The judgment of distribution is also considered a confirmation or homologation of the sale. When all the foregoing requisites are found in a probate proceeding, it is in rem; and if all persons have been notified, the title emanating therefrom is the new title paramount.

§ 566. Grignon's Lessee v. Astor. The most frequently quoted case in support of the doctrine that a proceeding against a decedent's property to pay its debts is in rem, and "analogous to proceedings in admiralty in which all the world are parties," is that of Grignon's Lessee v. Astor et al.1

The facts were that Peter Grignon died intestate; that his estate was administered upon, and his lands sold to pay debts, pursuant to an order of a county court, in Wisconsin, issued upon application of the administrator, who presented the certificate of the probate judge showing the sale necessary to pay the debts due by the succession, as required by a territorial law of Michigan in force in Wisconsin. Astor and others bought

1 Grignon v. Astor, 2 How. 319.