Van Horn v. Ford. stated is based a prayer for relief, to the effect that the sale of the land in Cedar county be declared ineffectual and void, and the title and possession thereof decreed to the petitioners, &c. A transcript of the proceedings of the judge of probate of Muscatine county, under which the land in controversy had been sold to the defendants, is annexed to and made a part of the petition. The demurrer sustained to this petition contains the following points: That the same does not state facts sufficient to constitute a cause of complaint. That it does not show that the Probate Court exceeded, but on the other hand, had jurisdiction over the property ordered to be sold. That the irregularities of such sale, by the administrator, cannot be insisted upon collaterally in this proceeding. That the sufficiency of notice for the sale of said property, has been adjudicated by a court having jurisdiction of the subject matter, and cannot be reviewed. That said premises have passed into the hands of innocent third parties, and cannot be recovered by plaintiffs. That plaintiffs' remedy is against the administrator and his sureties, and not against the defendants. That said plaintiffs have a full remedy at law, and are not entitled to the relief prayed for, in a court of equity. The court, in expressing its opinion upon the merits of this demurrer, considered that the judge of probate, authorizing a sale of the lands in dispute, had jurisdiction both of the parties to be affected and the subject matter, and that inasmuch as the infirmity which would, in equity, vitiate the defendant's title, did not necessarily appear, from an inspection of said proceedings, a subsequent purchaser, without actual notice, could not be affected thereby, and therefore held that the petition did not state facts, which if true, would entitle plaintiffs to the relief asked. Van Horn v. Ford. With The proceedings of the judge of probate, under whose authority the land in question was intended to be sold, including the administrator's reports of his doings thereunder, are made a part of the petition in this case. reference to the manner the administrator sold the tract of land in question, the proceedings aforesaid show the following facts: that the same was sold at public auction, to Fulton and Lemp, the highest bidders, for $227, according to the administrator's first report, which the record shows was duly approved by the judge of probate on the 10th day of October, 1846. In January following, a deed of conveyance for the land in question, was made by the administrator, to Fulton and Lemp, reciting that the land had been sold at public sale, under an order of the Probate Court, and in harmony with the facts set out in the above report. Afterwards, on the 26th of April, 1847, the administrator made a second or supplemental report, in substance to the effect, "that he had made a mistake in his first report, in this to wit, in representing said land as having been sold to Messrs. Fulton and Lemp, for the sum of $227, but that the fact was that, at the time of the sale aforesaid, S. C. Hastings bid for the same the sum of $227; but, afterwards, refused to take the same. That, subsequently, Messrs. Fulton and Lemp offered to take the said real estate, as if bid for by them at the price of $210, which offer, after due consideration, the administrator accepted, and asks that he may have a credit of $17, the difference between the two sales." These two reports are incompatible with each other; the alleged mistake in the first is not asked to be corrected in the second, except so far as the amount or price for which the property sold is concerned. The chief purpose of filing the second, seems to have been to obtain a credit of $17, the difference in the Van Horn v. Ford. amount of the purchase-money, as set forth in the two reports. Again, whilst the two reports agree in the statement, that the property was sold to Fulton and Lemp, yet they differ as to the manner in which the sale was made, one declaring that it was public, the other private. The facts recited in the deed, correspond with those set forth in the first report. Now, in this uncertain condition of the probate record, standing alone and unexplained, it would not be safe, or perhaps just, towards the parties interested, to undertake to pronounce upon their rights, by declaring the sale valid or invalid, or even to pass definitely upon the question whether the defendant Ford should be charged with constructive notice of any vital irregularity in the administrator's sale, by anything the probate record discloses. It is sufficient for us at present that this doubt as to the meaning of the administrator's reports, is rendered certain by positive averment in the plaintiffs' petition, to the effect that no public sale was ever made to Fulton and Lemp, but that the same was private, and void, because effected through fraud and collusion between the administrators and the purchasers. If so, and the demurrer admits the truth of these charges (and they also derive, to say the least, some color from the probate records, made a part of the petition), the sale cannot be sustained if the land is still in the hands of the first purchasers. But whether it would also vitiate the title in the hands of subsequent bona fide purchasers, we prefer to reserve the expression of any opinion until we see to what extent the above allegations will be supported by the evidence. Standing confessed as they do by the demurrer, they furnish ground of complaint which, upon a hearing, might entitle the plaintiffs to relief, and therefore the demurrer should have been overruled. In regard to the question whether the Probate Court of the county of Muscatine had jurisdiction to authorize the Van Horn v. Ford. sale of lands by an administrator, the same lying in Cedar county, we answer affirmatively, by holding that the same is fairly deducible from § 3, page 675 of the Revised Statutes of 1843, which reads as follows: "Upon the decease of any inhabitant of this territory, letters testamentary, or letters of administration on his estate, shall be granted by the judge of probate of the county in which the deceased was an inhabitant or resident at the time of his death, and when any person dies intestate in any State or county, leaving any estate to be administered within this territory, administration thereof shall be granted by the judge of probate, in any county in which there is any estate to be administered, and the administration, which shall be first lawfully granted in the last mentioned case, shall extend to all the estate of the deceased within the territory, and shall exclude the jurisdiction of the Probate Court, in every other county." The above section settles the question as to the power of the probate judge of Muscatine county to order a sale of the real estate of the decedent, wherever situated, but conceding this, it is claimed that the administrator, nevertheless, must, in the execution of said order, advertise and sell the land in the county where situated; this is not made requisite by the statute, but the place of sale seems to have been left discretionary with the administrator, and the judge ordering the same. It is perhaps a sufficient answer to this objection to say, that it is not among the causes for which the validity of an administrator's sale can be contested, as specified in § 36, page 713 of the Revised Statutes of 1843. As to the other points of objection to the administrator's sale, they were settled in the case of Morrow v. Weed, 4 Iowa, 77, against the plaintiffs, and we have no reason for changing such ruling. Still, for other causes herein above stated, we believe the Court erred in sustaining the demurrer, and must therefore reverse the order. Reversed. APPENDIX. L. NOTES OF CASES NOT OTHERWISE REPORTED. [These notes consist, in the main, of memoranda made by the Court in deciding the cases, the importance of which does not demand a more formal report.] MAYO V. TEMPLE. IMPERFECT RECORD NOT SUFFICIENT GROUND FOR DISMISSING APPEAL. To the transcript filed in this cause two certificates are appended one bearing date of April 1st, 1863, running as follows: "STATE OF IOWA, Lee County, ss: I, Charles Doerr, Clerk of the District Court in and for said county, certify that the foregoing pages numbering from one to sixty-nine inclusive, contain a true and correct transcript of the record in the foregoing entitled cause, as the same now remains of record in said court; except of plaintiff's instruction, in said cause, to which I cannot certify-the original instructions of plaintiff being missing or lost." Witness my hand, &c. The other bearing date the 5th of October, and running as follows: "STATE OF IOWA, Lee County, ss: I, Charles Doerr, Clerk of the District Court of Lee county, Iowa, at Keokuk, do hereby certify that the annexed transcript in the above entitled cause, was prepared for the purpose of perfecting the appeal in said cause, just before the last term of the Supreme Court at Davenport, but was not then sent up, because, when I came to compare the same, several of the original papers could not be found, and I could not therefore certify the same to be a true copy. Said lost or missing papers have not yet been found, and I am still unable to give the usual certificate to this transcript; but hereby state that so far as compared, I found same to be correct, and think the whole to be a correct and full transcript." In witness whereof I have hereunto, &c. Appellant's counsel moved the Court: 1. To dismiss the appeal because the transcript certified is imperfect. 2. To strike the transcript from the files "because it is not the transcript provided for by law, and, because according to the clerk's certificate, it is wholly imperfect." VOL. XVI.-74 |