Same. shall direct, and must briefly indicate the land sold, the sum for which it was sold, and must refer to the return for further particulars. Upon the hearing, the Court must examine the return and witnesses in relation to the same, and if the proceedings were unfair, or the sum bid disproportionate to the value, and if it appear that a sum exceeding such bid at least ten per cent, exclusive of the expenses of a new sale, may be obtained, the Court may vacate the sale and direct another to be had, of which notice must be given, and the sale in all respects conducted as if no previous sale had taken place; if an offer ten per cent more in amount than that named in the return be made to the Court in writing, by a responsible person, it is in the discretion of the Court to accept such offer and confirm the sale to such person or to order a new sale. 6 NOTE.-Stats. 1861, p. 643, Sec. 63; 1863-4, p. 370, Sec. 14. See numerous cases cited in previous notes under the various sections of this Article, ante. In Spriggs' Estate, 20 Cal., p. 125, the Court say: "The order of sale was made upon due notice and consideration; it designates the property to be sold by specific description; the Court finds expressly that the sale of each parcel was legally made and fairly conducted,' and that due proof was made to its satisfaction that the price was proportionate to the value of the property, and that a sum exceeding the bid of the appellant ten per cent, exclusive of the expenses of a new sale, could not be obtained.-Secs. 1552-3-4. Upon its own finding, the order of sale being unvacated and not appealed from, it only remained to confirm the sale, even if it be admitted that the Court erred in directing too large an amount of the property to be sold." One bidder, failing to comply with the terms of the sale, and another being substituted for him who does, does not affect the validity of the sale.-Halleck et al. vs. Guy, 9 Cal., p. 181. So it is valid made to the assignee of the purchaser.-Ewing vs. Higby, 7 Ham, pt. 1, p. 198. An order to sell until a certain sum is accumulated is exhausted when that sum is raised.-Willis vs. Mills, 22 Texas, p. 302. See sale of property where there is an existing trust of which the purchaser had not but the administrator had notice. Purchaser not affected by it.-Love vs. Administrator Berry, 22 Texas, p. 371. 1553. (§ 170.) When return of the sale is made and filed any person interested in the estate may file written objections to the confirmation thereof, and may be heard thereon, when the return is heard by the Court or Judge, and may produce witnesses in support of his objections. NOTE.-Stats. 1861, p. 644, Sec. 64. See Halleck vs. Guy, 9 Cal., p. 197. The mere failure to make the return within the time prescribed by law was held, in Brown vs. Hobbs, 19 Texas, p. 167, not to vitiate the sale. The order of sale is all to be inquired into unless questions are raised which go to the jurisdiction of the Court. Questions other than such as go to the jurisdiction do not ordinarily vitiate the sale or subject it to collateral attack. This seems to be the result of Saye vs. McAlister, 18 Texas, p. 80. Legal propriety and necessity alike dictate the upholding of sales fairly and honestly conducted.-Tucker vs. Harris, 13 Ga., p. 1. 1554. (§ 171.) If it appears to the Court that the sale was legally made and fairly conducted, and that the sum bid was not disproportionate to the value of the property sold, and that a greater sum, as above specified, cannot be obtained, or if the increased bid mentioned in Section 1552 be made and accepted by the Court, the Court must make an order confirming the sale, and directing conveyances to be executed. The sale, from that time, is confirmed and valid, and a certified copy of the order confirming it and directing conveyances to be executed must be recorded in the office of the Recorder of the county within which the land sold is situated. If, after the confirmation, the purchaser neglects or refuses to comply with the terms of sale, the Court may, on motion of the executor or administrator, and after notice to the purchaser, order a resale to be made of the property. If the amount realized on such resale does not cover the bid and the expenses of the previous sale, such purchaser is liable for the deficiency to the estate. NOTE.-Stats. 1856, p. 20, Sec. 1; 1861, p. 644, Sec. 65. See note to Sec. 1552, ante, and cases of Spriggs' Est., Halleck vs. Guy, and Love vs. Admr. Berry, there cited. The order for the sale, as also the order for the confirmation, are judicial acts, and their concurrence makes the sale a judicial sale. In making the sale the administrator acts for the Court and under its orders, receives the bids and returns them, like a master in chancery, into the Court for its own consideration. The Probate Court is the guardian of the rights of all parties interested in the estate, and acts for all.-Halleck vs. Guy, 9 Cal., p. 195. In Gregory vs. Taber, 19 Cal., p. 410, the Court say: "We have attentively considered the authorities and arguments on the question of probate sales, and have reluctantly reached the conclusion announced in the principal opinion in Gregory vs. McPherson, 13 Cal., p. 562, that to maintain a sale of a decedent's real estate, under the order of the Probate Court, it is necessary that the petition should state the facts required by Sec. 155 of the Practice Act (Code Sec. 1537, ante). It is urged that the statute, Secs. 171, 172 (Code Secs. 1554 and 1555), in effect confirms these sales in cases where the report of the administrator is made and the Probate Court confirms the sale and orders a deed to be executed to the purchaser. But the answer is, that the sole authority and jurisdiction of the Court come from the petition, with the averments required in Sec. 155 (Code Sec. 1537), and that without this jurisdiction the Probate Court has no power to confirm the sale or to impart validity to it. If this be not so, it would follow that the whole estate might pass without any petition, or, perhaps, even any proceedings, except an order of sale and the order of confirmation. No such effect was designed to be given by Secs. 171 and 172 (Code Secs. 1554 and 1555); but they refer only to sales made under orders which the Probate Court had jurisdiction to make. The provisions for allowing objections to sales, and requiring confirmation to give them effect, are only intended to secure such an execution of the order of sale that a just and fair price may be obtained. Spriggs' Est., 20 Cal., p. 125. See, also, Townsend vs. Tallant, 33 Cal., p. 54, where an order of sale, obtained in disregard of these sections, is treated as coram non judice and void. See, also, Brenham vs. Story, 39 Cal., p. 185, on statutory authority to sell in disregard of the interest or rights of the heirs, etc. ancos. 1555. (§ 172.) Conveyances must thereupon be Conveyexecuted to the purchaser by the executor or administrator, and they must refer to the orders of the Probate Court authorizing and confirming the sale of the property of the estate, and directing conveyances thereof to be executed, and to the record of the order of confirmation in the office of the County Recorder, either by the date of such recording, or by the date, volume, and page of the record, and such reference shall have the same effect as if the orders were, at large, inserted in the conveyance. Conveyances so made convey all the right, title, interest, and estate of the decedent, in the premises, at the time of his death; if, prior to the sale, by operation of law or otherwise, the estate has acquired any right, title, or interest in the premises, other than, or in addition to, that of the decedent at the time of his death, such right, title, or interest also passes by such conveyances. NOTE.-Stats. 1856, p. 20, Sec. 2; 1861, p. 644, Sec. 66. See notes to preceding sections of this Article and the cases there cited, particularly the cases cited in the preceding note, and the construction given to this section in Gregory vs. Taber et al. there cited. Where a purchase is made by the administrator, in his own name, and the purchase money is credited on the claim, the purchase is for the benefit of the estate.-McCoy vs. Crawford, 9 Texas, p. 353. But is not this a fraudulent sale? It was held to be void, for fraud, in Hardy vs. De Leon, 5 Texas, p. 212. See Sec. 1576, post. 1556. (§ 173.) Before any order is entered confirming the sale, it must be proved to the satisfaction of the Court that notice was given of the sale as prescribed, and the order of confirmation must show that such proof was made. NOTE.-See note to Sec. 1554, ante; and Gregory vs. Order of tion. what confirma to state. 1557. (§ 174.) If at the time appointed for the sale, the executor or administrator deems it for the interest of all persons concerned therein that the same be postponed, he may postpone it from time to time, not exceeding in all three months. 1558. ($ 175.) In case of a postponement, notice thereof must be given, by a public declaration, at the time and place first appointed for the sale, and if the postponement be for more than one day, further notice must be given, by posting notices in three or more public places in the county where the land is situated, or publishing the same, or both, as the time and circumstances will admit. NOTE.-Stats. 1861, p. 644, Sec. 67. 1559. (§ 176.) When a testator has given any legacy by will that is effectual to pass or charge the title to real estate, and his goods, chattels, rights, and credits are insufficient to pay the legacy, together with his debts and the charges of administration, the execu tor or administrator with the will annexed may obtain an order therefor, and sell his real estate for that purpose, in the same manner and upon the same terms and conditions as are prescribed in this Chapter in case of a sale for the payment of debts. NOTE.-See Secs. 1359, 1360, Civil Code, and notes, for the disposition of estates devised by will, and the resort to them for the payment of debts. Sec. 1361, id., provides for legacies to husband, widow, and kindred, to be resorted to for payment of debts before those made to others. See Gregory vs. Haynes, 13 Cal., p. 596. Quere? as to power of executor to sell real estate without proceeding in other cases to obtain an order of sale. See Civil Code, Secs. 1311, 1312, and note, as to effect of a devise of lands. It would seern that the title vests in the devisee at the moment of the death of the testator, subject only to payment of the debts in the order prescribed by law; the rents would belong to the owner of the land, subject to the debts, in the same order. * Such was the rule of the common law, and no change in this respect appears to be intended.-Estate |