In re Estate of Montgomery

Myrick, J.: This an appeal from an order for the sale of real estate of the intestate. I

The deceased died June 2,1876. Letters of administration were issued June 24, 1876, to J. W. B. Montgomery. An inventory was filed, and on the first of July, 1876, the first publication was had of a notice to creditors to present their claims within ten months. The time j expired May 1, 1877. Claims were presented, allowed and approved, amounting, exclusive of interest, to about one hundred and forty-nine thousand dollars. March 12, 1878, the administrator filed his petition for an order for the sale of aj.1 the property of the estate, and, after due notice and hearing, such order was made. Notices for the sale of the property at private sale were duly published and given, as authorized by ,the order, but no bid was received, and the' real estate remains wholly undisposed of. The petition on this application was filed April 11,1881. The heirs of the intestate filed an opposition to the petition, [647]on the ground that more than four years had elapsed after the claims (except three) were allowed, before the filing of the petition, and that an application for the sale of real estate was barred by Section 343, C. C. P. The Court below found that there had been no laches or unreasonable delay in the sale of the lands under the first order or in the present application. The administrator, in his petition, states as reasons, among others, why the property was not sold under the first order, that at the time the sale was ordered a general financial depression existed throughout this State, and a large amount of land was thrown upon the market; also that some portions of the real estate were involved in litigation, which could not be readily disposed of; and that for these reasons it vas impracticable to complete the sale of the real estate uncer said order.

On this appeal the appellants present two points:

First—The appellants insist that a cause of action accrued to the administrator and to each creditor whose claim had feen allowed so soon as it was ascertained that it was necessity to sell property to pay the debts; and more than four years having been permitted by them to intervene betveen the time it was known by all of them to be necessary tc sell the property to pay the debts and the date of filing tie petition. Section 343, Code of Civil Procedure, interposes a bar against this proceeding, which is an action or special proceeding in the nature of an action.