This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
At common law, an unsecured debt could not be enforced, as against the real property of the debtor, after the latter's decease, unless it was due on a contract under seal, which expressly bound the debtor's heirs, and then it could be enforced against the heir to the extent of any land in fee simple descended to him.22 Under this condition of the law there was no remedy available to even the specialty creditor in case the decedent had devised the land, or the heir had aliened it, and, accordingly, it was provided by statute23 that a devisee should be liable to the same extent as the heir, and that no alienation by either the heir or the devisee should affect his liability for the debt. These statutes imposed on the heir and devisee a personal liability for the debt to the extent of the value of land descended or devised to him, and this was restricted to debts under seal. Later it was provided24 that all interests in land should be assets for the payment of debts, whether created by simple contract or by contract under seal, and that the heir or devisee might be sued in equity accordingly by any creditor of the deceased. In this country there is probably in every state a statute making the realty of a decedent liable for his debts as against his heirs and devisees.25
19. Kleber, Void Judicial Sales, Sec.Sec. 15-20.
20. Post, Part VI.
21. 3 Pomeroy, Eq. Jur. Sec.Sec.
22. 2 Blackst. Comm. 244, Williams, Real Prop. (21st Ed.) 280.
23. 3 Win. & M. c. 14 (A. D.
Under the English statute making the lauds of a decedent liable in equity for his debts, the proceeding to subject the land was by a "creditors' bill" in equity and this mode of proceeding for the purpose is recognized in a number of the states.26 In most of the states, however, the probate court has full jurisdiction to order the sale of land for the payment of debts, and likewise, frequently, for other purposes, such as the payment of legacies, or in order to make distribution, and the statutes usually provide that such sales shall be ordered on the application of the executor or administrator.27 The length of time after the decedent's death within which a sale of lands for this purpose can be applied for by the personal representatives or the creditors of deceased is in some states fixed by statute.28 In the absence of statute, it is said that the application must be made within a reasonable time,29 and occasionally
1691; 6 & 7 Win. Ill c. 14 (A. D. 1695), 1 Wm. IV c. 47 (A. D. 1830).
24. 3 & 4 Wm. IV. c. 104 (A. D. 1833).
25. 2 Dembitz, Land Titles, Sec. 150; 2 Woerner, Administration, Sec.Sec. 463, 490; 11 Am. & Eng. Enc. Law (2d Ed.) 838.
26. 3 Pomeroy, Eq. Jur. Sec.Sec. 1152-1154; 2 Woerner, Administration, Sec. 463; 11 Am. & Eng. Enc. Law, 1072.
27. 2 Woerner, Administration, Sec.Sec. 463, 464.
28. 2 Woerner, Administration, Sec. 465.
29. Liddel v. Mcvickar, 11 N. J Law, 44; Rosenthal v. Renick, 44 I11. 202: Killough v. Hinton, 51 Ark. 65; State v. Probate Court this has been determined with reference to the statutory period in which an action to recover lands is barred.30
A sale of real estate to pay debts is ordinarily authorized only when the personal estate is insufficient for the purpose, and that such is the case must appear from the bill or petition for sale in order to give the court jurisdiction. In some states proceedings for sale by an executor or administrator are regarded as adversary to the heirs or devisees, so that a failure to give notice to the latter as required by statute renders the sale void. In other states they are regarded as proceedings in rem, and so valid, though no notice is given.31 In a number of states the failure of the executor or administrator to give bond before making sale as required by the statute is regarded as absolutely invalidating the sale, and sometimes such effect is given to a failure to make the proper oath.32
The sale must comply not only with the requirements of the statute, but also with the terms of the order for sale. The sale, when made by the executor or administrator, must, in most states, be confirmed by the court in order to have any effect whatsoever in passing title, since the personal representative, not expressly empowered to sell by the terms of the will, is regarded as the instrument of the court, and the sale, to be valid, must be adopted by the court as its own act.33 After the sale is confirmed, the executor or administrator, still acting as the instrument of the court, is usually required to make a conveyance of the of Ramsey County, 40 Minn. 296; Ferguson v. Scott, 49 Miss. 500. See Bindley's Appeal, 69 Pa. St. 295.
39. Ricard v. Williams, 7 Wheat. (U. S.) 59, 55 L. Ed. 398; Wingerter v. Wingerter, 71 Cal. 105, 11 Pac. 853; Rosenthal v. Renick, 44 111. 202; Bozeman v. Bozeman, 82 Ala. 389, 2 So. 732;
Sumner v. Child, 2 Conn. 607.
31. 2 Woerner, Administration, Sec. 466; Kleber, Void Judicial Sales, Sec.Sec. 72, 156.
32. 2 Woerner, Administration, Sec. 472; Kleber, Void Judicial Sales, Sec.Sec. 253, 254, 316, 317.
33. Kleber, Void Judicial Sales, Sec.Sec. 1-4, 381.