It does not apply to an heir claiming title paramount to and independent to that of the decedent.92 It does not apply where the land sold was not part of the estate of the decedent.93 After the five-year period the probate court cannot revise or correct its former proceedings so as to divest the title acquired by the sale." The statute begins to run against an action of ejectment from the time the purchaser goes into possession under his deed from the representative.95 In Massachusetts it has been held that a remainderman is a person "under legal disability," within the statute, so that he may maintain an action any time. within five years after the termination of a precedent life estate. In this state the rule is doubtless otherwise as a remainderman may sue to quiet title during the continuance of the life estate. One who has been in possession of real estate, under an executor's sale, for more than five years, is not required, in an action by another to recover possession of such real estate, to establish the validity of the executor's sale, before he can avail himself of this statute."7 96 1001. Venue of actions to vacate sales-An action to set aside certain sales and for an accounting held properly brought in the county where the defendants resided though the lands affected were not situated in that county.98 1002. Injunction-Where the probate court erroneously allowed an outlawed claim against the estate, it was held that an action would not lie in the district court to enjoin a sale of realty pursuant to a license of the probate court for the payment of the claim."" 1003. Reimbursement of purchaser on vacation of sale-Heirs cannot recover land sold by a representative to pay debts of the decedent on account of defects in the sale without reimbursing the purchaser for so much of the proceeds of the sale as were applied to the payment of debts which were a charge on the land, with interest, deduction being made for the value of the use of the land.' The reimbursement should include taxes on the land paid by the purchaser, with interest.2 92 Byerly 7. Eadie, 95 Kan. 400, 148 Pac. 757. 93 Byerly v. Eadie, 95 Kan. 400, 148 N. W. 757. 94 Betts v. Shotton, 27 Wis. 667. 95 Jones v. Billstein, 28 Wis. 221; Jones v. Lathrop, 28 Wis. 339. 96 Jewett v. Jewett, 10 Gray (Mass.) 31. See Lyons v. Carr, 77 Neb. 883, 110 N. W. 785; First Nat. Bank v. Pilger, 78 Neb. 168, 110 N. W. 704. 97 Holmes v. Beal, 9 Cush. (Mass.) 223. 98 Smith v. Barr, 76 Minn. 513, 79 N. W. 507. 99 O'Brien v. Larson, 71 Minn. 371, 74 N. W. 148. 1 Blodgett v. Hitt, 29 Wis. 169; Baker v. Martin, 156 Ind. 53, 59 N. E. 174; Browne v. Coleman, 62 Or. 454, 125 Pac. 278; Cole v. Boyd, 68 Neb. 146, 93 N. W. 1003. See Richardson v. Farwell, 49 Minn. 210, 219, 51 N. W. 915; 18 Cyc. S18; 24 C. J. 680. 2 Ball v. Clothier, 34 Wash. 299, 75 Pac. 1099. See Richardson v. Farwell, 49 Minn. 210, 219, 51 N. W. 915. 1004. Sales of land for public purposes-Statute-Whenever the land of a decedent or ward is desired for any public purpose by any person or corporation having the power of eminent domain, the representative may agree upon and adjust the damages that would result from a taking thereof, and, upon payment of such damages being made, may convey the land, or any right therein, so desired. But no such agreement or conveyance shall be valid unless approved by the probate court.3 1005. Same-Petition for approval of court-Statute-Such approval may be obtained upon filing in such court a verified petition of the person or corporation and the representative, setting forth the name of the decedent or ward, the name of the person or corporation with whom the agreement is made, a description of the land taken and for what purpose, the amount to be paid, and that such amount is the full value of the land taken, and the damages to the remainder. The agreement, signed by the parties, shall be attached to the petition.* 1006. Same-Order of approval-Statute-Upon the filing of such petition and agreement, the court shall hear and determine the same without notice, and, after hearing, the court, if satisfied that the agreement is just and equitable, shall make an order approving the same, and the petition, agreement, and order shall be recorded. A certified copy of such order and agreement may be filed for record with the register of deeds of the county wherein such land is situated, and when so filed shall be notice to everybody. The approval and confirmation by the probate court of a conveyance under this statute is no evidence that the person who executed it was a legally appointed representative. The provision for recording the order of approval and conveyance did not. validate a record made before its enactment." 1007. Construction of obsolete statutes-Cases are cited below involving the construction of various obsolete statutes. 1008. Validating acts-Various statutes have been enacted validating sales and mortgages of realty by representatives." 3 G. S. 1913, § 7365. 4 G. S. 1913, § 7366. G. S. 1913, § 7367. 6 Dawson v. Helmes, 30 Minn. 107, 14 N. W. 462; Burrell v. Chicago etc. Ry. Co., 43 Minn. 363, 45 N. W. 849. 7 Dawson v. Helmes, 30 Minn. 107, 14 N. W. 462. 8 Montour v. Purdy, 11 Minn. 384 (278) (lien given to purchaser at void sale); Culver v. Hardenbergh, 37 Minn. 225, 33 N. W. 792 (order extending time to sellindorsement on certified copy of license); McCarthy v. Van Der Mey, 42 Minn. 189, 44 N. W. 53 (sale of fee of homestead-sale during life estate of surviving husband or wife); Harrison v. Harrison, 67 Minn. 520, 70 N. W. 802 (extension of license-power to grant new or second license). 9 See G. S. 1913, §§ 7346, 7347, 73727375; Laws 1917, c. 423; Laws 1919, c. 436. SPECIFIC PERFORMANCE 11 1009. When may be ordered-Statute-When any person under contract in writing to convey any real estate dies or becomes insane or incompetent before making the conveyance, the probate court may direct the representative or guardian, or the guardian of any minor who may take the vendor's interest in such real estate or any part thereof by descent or devise from such decedent, to convey such real estate to the person entitled thereto, in all cases where such decedent, if living, or such ward, if sane or competent, might be compelled to convey.10 This statute is constitutional. It does not give the probate court jurisdiction. of an action for specific performance.12 The remedy afforded by the statute is concurrent with that for specific performance in the district court. The design of the statute is to afford a summary remedy in cases where there is no real controversy as to the rights of the parties. If there is any reasonable doubt of the right to a conveyance the probate court should not order one, but remit the parties to an ordinary action for specific performance in the district court. 13 The authority of the probate court under the statute is special and not an incident of general probate jurisdiction." The statute does not give the probate court greater powers than are administered by a district court in similar cases.15 The jurisdiction of the probate court under the statute is concurrent with that of the district court and must be governed by the same rules.16 A representative has no authority to make a conveyance demanded, without an order of the probate court, and it is the duty of the party demanding the deed to apply to the court for the necessary order. The statute applies only where the contract was in writing. It has no application where specific performance is sought on the ground of a part performance of an oral contract.18 It applies though the contract could not have been enforced during the life of the decedent because a condition could not then be fulfilled, if it could be enforced against 10 G. S. 1913, § 7376, as amended by Laws 1915, c. 223. See 20 Ency. Pl. & Pr. 542; 36 Cyc. 795; Gary, Probate Law (3 ed.) §§ 542-557; Church, Probate Law, 968-974. 11 Mousseau v. Mousseau, 40 Minn. 236, 41 N. W. 977; Adams v. Lewis, 5 Sawyer 229. 12 Mousseau v. Mousseau, 40 Minn. 236, 41 N. W. 977; Svanburg v. Fosseen, 75 Minn. 350, 78 N. W. 4. 18 Mousseau v. Mousseau, 40 Minn. 236, 41 N. W. 977; Svanburg v. Fosseen, 75 Minn. 350, 78 N. W. 4. 14 Aspley v. Murphy, 50 Fed. 376. 17 Luco v. De Toro, 91 Cal. 405, 27 Pac. 1082. 18 Svanburg v. Fosseen, 75 Minn. 350, 78 N. W. 4; Cory v. Hyde, 49 Cal. 469; Wadleigh v. Phelps, 149 Cal. 627, 87 Pac. 93; McQuilty v. Wilhite, 218 Mo. 586, 117 S. W. 730; Bates v. Sargent, 51 Me. 423; Bullerdick v. Hermsmeyer, 32 Mont. 541; 81 Pac. 334; 18 Cyc. 316. him if he were living at the time of the application.19 To justify an order for a conveyance the contract must be definite.20 The contract must have been to convey a specific tract.21 The statute does not apply to a contract which does not become operative until after administration.22 A contract made by a minor but confirmed after maturity may be enforced under the statute.23 The statute applies to lands of which the decedent died seized. It is not applicable to land in another state.25 It is not applicable to a deed absolute in form but intended as a mortgage, and proceedings cannot be had thereunder to compel the representative to execute a deed to the real owner.26 A written contract for the sale of land, executed by an agent of the owner, upon the express condition that it was subject to his approval, cannot, after his death, be specifically enforced against his personal representative, if he did not approve the contract before his death.2 24 27 28 1010. Petition-Notice of hearing-Statute-On presentation of a petition by any person claiming to be entitled to such conveyance, setting forth a description of the land and the facts upon which such claim for conveyance is based, the probate court shall fix a time and place of hearing, and cause three weeks' published notice thereof to be given. The petition must show that the contract is in writing.29 It need not be as specific as a bill in equity.30 A representative with whom, as an individual, a valid contract to convey was made by the decedent, may individually petition the probate court to order him, as representative, to execute a contract to himself.31 Notice as provided by statute is essential. The order cannot be granted ex parte.3 32 Unless the record affirmatively shows the contrary it will be conclusively presumed on collateral attack that interested parties were duly served with notice.33 1011. Hearing on petition-Order for conveyance-Dismissal-Statute-At the time appointed for hearing after due proof of publication of notice, the court shall hear all proper evidence both for and against grant 19 Mousseau v. Mousseau, 40 Minn. 236, 41 N. W. 977. 20 Lynes v. Hayden, 119 Mass. 482. See Dunnell, Minn. Digest and Supplements, § 8781. 21 Ferris v. Irving, 28 Cal. 645; Marriner v. Dennison, 78 Cal. 202, 20 Pac. 386. 22 In re Healy's Estate, 137 Cal. 474, 478, 70 Pac. 455. 23 Ferguson v. Bell, 17 Mo. 347. 24 Little v. Lesia, 5 Mich. 118. 25 See Laws 1919, c. 234; Watkins v. Holman, 16 Peters (U. S.) 26. 26 Wadleigh v. Phelps, 149 Cal. 627, 87 Pac. 93. 27 In re Dick's Estate, 74 Cal. 284, 15 Pac. 837. 28 G. S. 1913, § 7377. 29 Cory v. Hyde, 49 Cal. 469; Bullerdick v. Hermsmeyer, 32 Mont. 541, 81 Pac. 334. 30 In re Grogan's Estate, 38 Mont. 540, 100 Pac. 1044. 31 In re Garnier's Estate, 147 Cal. 457, 82 Pac. 68. 32 Nazro v. Long, 179 Mass. 451, 61 N. E. 43. See Van Aken v. Clark, 82 Iowa 256, 48 N. W. 73; Hadley v. Bourdeaux, 90 Minn. 177, 95 N. W. 1109. 33 Hadley v. Bourdeaux, 90 Minn. 177, 95 N. W. 1109. ing the petition, and, if satisfied that the conveyance should be made, it shall order the representative to execute such conveyance to the petitioner; otherwise it shall dismiss the petition.34 If the right to a conveyance is not free from reasonable doubt the petition should be dismissed, without prejudice to an action in the district court. The probate court is not authorized to render a judgment against the petitioner on the merits so as to prevent him from bringing an action in the district court after failing in the probate court.35 If there is a controversy as to the title of the decedent the petition should be dismissed.36 1012. Deed-Effect-Recording order-Statute-If no appeal is taken from such order within the time limited therefor by law, or if the same is affirmed on appeal, the administrator or guardian shall execute the conveyance as directed, and a certified copy of the order shall be recorded with the deed in the office of the register of deeds in the county where the land lies. Such conveyance shall be as effectual to pass the estate contracted for as if executed by the decedent while living, or the ward while sane or competent.37 It is not necessary that the heirs should join in the deed.38 1013. Effect of recording order-Statute-Where no conveyance has been executed, the record of a certified copy of the order in such register of deeds' office shall be as effectual to give the person entitled to the conveyance a right to the possession of the lands and to hold them as though the conveyance had been made pursuant to the decree.39 1014. Successors of vendee may petition for order-Statute-If the person to whom the conveyance was to be made dies before the commencement of proceedings, or before the conveyance is completed, any person who would have been entitled to the estate under him, as heir, devisee, or otherwise, in case the conveyance had been made according to the terms of the contract, or the executor or administrator of such person, for the benefit of the person so entitled, may commence such proceedings or prosecute the same if already commenced; and the conveyance shall thereupon be so made as to vest the estate in the persons so entitled to it or in the administrator for their benefit. The clear intent of this statute was to place the power of the court, in enforcing such contracts, upon the broadest principles of equity, so that the benignant rule of treating as done that which, for a valid consideration, the parties had agreed to do, would be most liberally applied, without regard to any technical rule of law which might otherwise operate 34 G. S. 1913, § 7378. 35 Mousseau v. Mousseau, 40 Minn. 236, 41 N. W. 977; Hartshorn v. Smith, 19 S. D. 653, 104 N. W. 467. 36 See Wilson v. Warner, 84 Conn. 560, 80 Atl. 718. 37 G. S. 1913, § 7379. 38 Fulwider v. Peterkin, 2 G. Gn. (Iowa) 522. 39 G. S. 1913, § 7380. |