In re Lewis

Crockett, J., delivered the opinion of the Court:

The only point raised on this appeal which merits discussion, is, whether the Probate Court had jurisdiction to order the administrator of Lewis to make the conveyance on the facts set forth in the statement on appeal. From this statement, it appears that the estate of Lewis was largely indebted to the estate of Traube, on three notes and mortgages, which were duly presented and allowed by the administrator and the Probate Judge; and it does not appear that there were any other debts against the estate. It further appears that, in order to pay this debt and the expenses of administration, the administrator of Lewis procured an order of the Probate Court, for the sale of certain real estate belonging to the estate of Lewis, and including the lot in contest in this case; that the sale was duly made, and the lot in contest was purchased, at said sale, by Edwards, at the price of $800, whereof he paid in cash, at the time of the [308]sale, the sum of $80; that the sale was duly confirmed by the Probate Court, but no conveyance has been executed by the administrator, to Edwards, and the object of this proceeding is to compel a conveyance. The administrator refuses to convey, on the ground that Edwards has neglected and refused to pay the remainder of the purchase money; and that, the property, in the meantime, having greatly increased in value, the Court should vacate the order confirming the sale, and order the property to be resold for the benefit of the estate. The statement on appeal discloses, that Edwards held a mortgage on the property in dispute, made by Lewis, in his lifetime ; and Traube held two prior mortgages, made by Lewis, on this and other property; that Edwards assigned his mortgage to Traube, on an agreement between them that the latter would proceed to foreclose it, and at the foreclosure sale, Edwards was to have the right to purchase the mortgaged premises at a price not exceeding $1,000; in which event, the purchase money was to be credited by Traube on the judgment of foreclosure; but if the property should sell for more than $1,000, at the foreclosure sale, Traube was to pay Edwards that amount out of the proceeds of the sale; that Traube commenced an action to foreclose the mortgage, but it was ascertained that Lewis had died before action brought, and it was thereupon abandoned, and the note and mortgage, together with the two other notes and mortgages held by Traube, were presented and allowed as claims against the estate of Lewis, as already stated. The Court finds it as a fact, and, as we think, upon sufficient evidence, that the $800 to have been paid by-Edwards, as the price of the property, was “paid to, and received by, the estate of said Lewis, deceased, by being credited upon a claim of the estate of one Louis Traube, deceased, against the estate of said Lewis, deceased, which-has been duly presented to, and allowed by, the said administrator and by this Court, under and in pursuance of a certain agreement in, the premises, entered into by said Edwards and by said Traube, in Ms lifetime; and that the estate of said Lewis, deceased, thereby received the full benefit and advantage of said sum as bid, and that said