Stone, Apt. v. Peasley's Estate.

and, upon an examination and hearing by said court, it was found and adjudged that, upon the settlement made in November, 1843, the said Laura was, in fact, entitled to one-seventh instead of oneeighth of the fund then in the appellant's hands, as guardian for the said Laura Ann and the intestate, and that the decree ought to be reformed in that respect; and the probate court thereupon so ordered and further decreed that the appellant pay to the said Laura the difference between said eighth and said seventh part, amounting to $146.81. The appellant was duly notified of this application, but no notice of it whatever was given to the administrator of the intestate. The appellant claimed an allowance against the estate of the intestate for the amount of the decree of the probate court in favor of the said Laura Ann against him. The referee found that, in fact, the said Laura Ann was, upon the settlement in 1843, entitled to one-seventh instead of one-eighth part of the guardianship fund then in the appellant's hands, but submitted to the court whether, upon the facts as above stated, the appellant was entitled to an allowance of his claim against the intestate's estate.

The county court rendered judgment, upon the report, in favor of the appellant, to which the appllees excepted.

Peck & Colby and Dickey for the appellees.

The decree of the probate court, on which the plaintiff founds his claim to recover, is a nullity. It was made without notice to the representatives of the intestate, who are not to be affected by a proceeding of which they had no notice. Comp. Stat. p. 368, § 8; 1 D. Chip. 357; Chase v. Hathaway, 14 Mass. 221; Hathaway v. Clark, 5 Pick. 490; Burd v. Pratt, 18 do. 115; Conkey v. Kingman, 24 do. 115.

If the orders of the probate court, and settlement made prior to the last order, can be, at this late day, varied by proceedings in that court, it can only be legally done on notice to all interested. Can it be done at all? Field v. Hitchcock, 14 Pick. 405.

C. W. Clarke and W. Hebard for the appellant.

The probate court have power to correct errors in their decrees after lapse of time short of twenty years. Heirs of Smith v. Rix Admr. 9 Vt. 240; Adams et al. v. Adams el al., 21 Vt. 162.

Stone, Apt. v. Peasley's Estate.

It is not matter of error that the probate court did not notify the other party of the application to have the error corrected. The statute does not require notice in such cases; and when it is in the discretion of the court to give notice or not, their proceedings are valid.

The opinion of the court was delivered, at the circuit session in October, by

REDFIELD, CH. J. There are numerous questions involved in this case, more or less preliminary to the main question, which, being decided in favor of the appellees, would lead to a new trial, without determining the main question, and as they have all been fully argued, it seems important, as far as consistent, to determine

them now.

I. A question is made in regard to the extent of the operation of this remodelling of the decree of 1843, whether it is binding upon the esate of Daniel Peasley, there being no general notice given, and no special notice to any one but the appellant. The statute seems to require special notice to all the parties interested in the distribution of estates; and reason would certainly indicate the necessity of such notice. Indeed all judicial proceedings, without constructive notice, at the least, are altogether inoperative. There being, then, no notice to the appellees of the application for remodeling of the decree of 1843, we think they may stand upon the original decree, or, at all events, they are not concluded by the new decree of 1854.

II. It seems to us a question of some difficulty whether such a decree as that of 1843, is susceptible of modification by the probate court, after being carried into effect. A decree of distribution of an estate, when once executed, vests the property, and puts it out of the control and appropriate jurisdiction of the probate court. Property once fully administered upon is as effectually out of the jurisdiction of the probate court as it ever can be. After property is once vested, in obedience to a judicial sale or decree, it would certainly involve a very strange anomaly, if the title could be modified or defeated by any after proceedings of the same tribunal, and especially ex parte proceedings. A sale by a sheriff, after it is once ended, is certainly beyond his control. If he sell one-seventh

Stone, Apt. v. Peasley's Estate.

of an estate or personal chattel, it is certainly not in his power subsequently to compel the purchaser to accept of an eighth part, upon any new discovery in regard to the title, or his authority. So too of a sale by a master in chancery, or a receiver, or any other public officer. Good faith demands that title to property, acquired by judgment of a court of competent, and especially of exclusive jurisdiction, should not be liable to any failure or modification.

Hence this court held, in a case in Orleans county, many years since, after two arguments, that a decree of distribution of real estate exclusively to the heirs of the full blood, taking no notice of the half-blood heirs in the same degree, who were at law equally entitled to share in the estate, could not, after possession had been taken of the estate by those to whom it had been decreed, upon petition of the heirs excluded from their share in the estate, be so modified as to give the property to those originally entitled to it. And a decree of the probate court making a new distribution of the estate, as it originally should have been made, affirmed in the county court, was set aside in this court, upon the ground that the first decree, and possession taken under it, put the title beyond the control of the probate court.

III. The cases of Smith's heirs v. Rix, Admr, 8 Vt. and S. C. 9 Vt., and Adams v. Adams, 21 Vt., where decrees of the probate court were modified by that court and affirmed in this court, stand upon somewhat peculiar grounds which do not apply in this

case.

1. These cases are all decrees upon the settlement of administrator's accounts, where the proceeding is, in effect, ex parte, the administrator partially representing both sides, although, in contemplation of law, the heirs or creditors may appear. See case of Adams v. Adams, 22 Vt. Hence such decrees are not of the same conclusiveness as decrees of distribution, or indeed as ordinary judgments and decrees, where both parties in interest are repre

sented.

2. These cases are, so far as they hold decrees of the probate court liable to revision, confined to questions not passed upon in a former decree, as cases of fraud, &c., such as will justify a court of equity in setting aside a contract, or modifying or even vaca

Ascutney Bank et als. v. McK Ormsby.

ting a decree of the same court. Harris v. Hardiman, 14 How. ard 334. We mean, doing this, in effect, by enjoining the party,

3. They are based upon very questionable grounds of policy, and ought not to be extended beyond similar cases in all respects. We think, therefore, this judgment must be reversed, and upon the report of the referee, judgment entered for the appellees.

THE ASCUTNEY BANK, THE BANK OF NEWBURY AND THE ORANGE COUNTY BANK v. ROBERT MCK ORMSBY.

Action upon promise to furnish security for purchase money of real estate. Statute of frauds.

If the purchaser of property, which is conveyed to him, promises but neglects to furnish security for the payment, at a future day, of that part of the purchase money which is unpaid, an action may immediately be commenced and maintained against him for its recovery.

In such an action the declaration should be special and count upon the promise to furnish security; and the rule of damages would be the sum to have been secured.

If the seller declines to make a transfer of the property until the security is furnished but the purchaser fraudulently obtains the possession of it, (or of the deed of it, if real estate, as in the present case,) the seller may waive the tort, and maintain an action on the promise to furnish security.

In a contract for the sale of real estate, a deed of which is executed and delivered, a promise by the purchaser to pay the consideration or furnish security for it, is not within the statute of frauds; and, if only by parol, an action may be maintained upon it.

ASSUMPSIT. The declaration alleged that the plaintiffs offered for sale at public auction a piece of real estate in Bradford, the conditions of the sale being that one-third of the purchase money should be paid down, and satisfactory security given for the remainder, payable one-half in one, and the other half in two years, upon the furnishing of which, by a given day, a deed and the possession of the premises was to be given; that the defendant was the highest bidder for, and was declared the purchaser; that the defendant did pay one-third part of the purchase money, but did not and

Ascutney Bank et als. v. McK Ormsby.

would not furnish security for the remainder, though the plaintiffs had executed to him a valid deed of the premises, which they were ready to deliver upon his complying with the conditions of the sale, but that the defendant fraudulently obtained said deed from the possession of the plaintiffs, and caused it to be recorded, and then took possession of and had since occupied said premises,-but had ever refused to pay or secure the balance of the purchase money. The defendant plead in bar that the promises relied upon in the plaintiff's declaration were contracts for the sale of land, and that no agreement in reference to them, nor any memorandum or note thereof, was in writing, or signed by the defendant, or by any person by him authorized, &c.

To this plea the plaintiffs replied the execution by them and the obtaining by the defendant of their deed, and his taking possession of said premises, &c., and to this replication the defendant demurred. The county court, June Term, 1855,-POLAND, J., presiding,adjudged the replication insufficient, to which the plaintiffs excepted.

C. W. Clarke and P. T. Washburn for the plaintiffs.

1. The defendant's refusal to give security, in accordance with the contract, absolved the plaintiffs from all obligation to give time and entitled them to sue at once; Gilman v. Hall, 11 Vt. 510; Eddy v. Stafford, 18 Vt. 237; Tyson v. Doe, 15 Vt. 571.

2. The replication is a sufficient answer to the plea of the statute of frauds; Philbrook v. Belknap, 6 Vt. 383; Bowen v. Bell, 20 Johns. 338; Wilkinson v. Scott, 17 Mass. 249; Brackett v. Evans, 1 Cush. 79; Preble v. Baldwin, 6 Cush. 554; Hibbard v. Whitney, 13 Vt. 23; Thayer v. Viles, 23 Vt. 497.

R. McKOrmsby pro se.

1. The action in this case counts on the contract, and claims damages for its breach. The contract is for the sale of land. Without being in writing no action will lie on such contract; Comp. Stat. chap. 64, § 1.

It is sometimes said that the complete execution of the contract by the vendor entitles him to an action for the money. This, in some cases, according to the American cases, may be so; but the money must be due, so that debt or general assumpsit will lie for