interest, as the court may direct. The land may be sold in one parcel or in subdivisions, as the executor or administrator shall judge most beneficial to the estate, unless the court otherwise specially directs. If it appears that any part of such real estate has been devised and not charged in such devise with the payment of debts or legacies, the court must order the remainder to be sold before that so devised. Every such sale must be ordered to be made at public auction, unless, in the opinion of the court, it would benefit the estate to sell the whole or some part of said real estate at private sale; the court may, if the same is asked for in the petition, order or direct such real estate, or any part thereof, to be sold either at public or private sale, as the executor or administrator shall judge most beneficial to the estate. If the administrator or executor neglects or refuses to make a sale under the order as directed therein, he may be compelled to sell, by order of court, made on motion, after due notice, by any party interested.11

Sec. 230. Additional bond required in sale of real estate, when.

The judge must require an additional bond whenever the sale of any real estate belonging to an estate is ordered by him; but no such additional bond must be required when it satisfactorily appears to the court that the penalty of the bond given before receiving letters or any bond given in place thereof is equal to twice the value of the personal property remaining in, or that will come into the possession of the administrator, or executor, including the annual rents, profits, and issues of real estate belonging to the estate, and twice the probable amount to be realized on the sale of the real estate ordered to be sold.15

14 Snyder, 5,316; Wilson, 1,660; Dakota Code, 5,829 (1887); California, 1,544 (Kerr), similar. See Section 275 for form for decree and order of sale.

15 Snyder, 5,213; Wilson, 5,554; Dakota Code, 5,757 (1887); California, 1,389, similar.

Sec. 231. Proceedings by an administrator or executor in the sale of land void, when.

Where there is a total want of jurisdiction of the subjectmatter in all sales made by an administrator, executor or guardian, the proceedings are void and a mere nullity, and confer no rights and afford no justification, and may be rejected when collaterally drawn into question. The doctrine of caveat emptor, as it applies to judicial sales, is based upon the theory that the purchaser buys only such estate or interest as his debtor has, and he is bound to take notice what that interest is. The following was quoted with approval, from Freeman on Void Judicial Sales by the Supreme Court of our State:

"Every purchaser has the right to suppose that by his purchase he will obtain of the defendant in execution, in case of execution sales, and of the ward or decedent in the case of guardian's or administrator's sale. The promise to convey his title is the consideration upon which his bid is made. If the judgment or order of sale is void, or if, from any cause the conveyance, when made, cannot invest him with the title held by the parties to the suit or proceeding, then his bid or other promise to pay, is without consideration, and cannot be enforced. He may successfully resist any action for the purchase money, whether based upon the bid or some bond or note given by him. It has been held that the rule caveat emptor does not apply to cases in which the court had no jurisdiction to direct the sale at which the purchaser bid, and that in such case the purchaser might have restitution of the purchase money even after confirmation of the sale. And generally it has been held that a purchaser at a judicial sale which is void for want of jurisdiction in the court to order the sale, or for other cause, may resist the payment of the purchase money, even after the purchaser's bid had been accepted by the court." 18

16 Zufall v. Peyton, 26 Okla. 808, 110 Pac. 773; Maupin, Marketable Title to Real Estate (2d ed.), 82;

16

Thompson v. Tolmie, 2 Pet. 157, 7 L. Ed. 381; Freeman, Void Judicial Sales, Sec. 48.

Sec. 232. When person interested may apply for order of

sale.

If the executor or administrator neglects to apply for any order of sale when it is necessary, any person may make application therefor in the same manner as the executor or administrator, and notice thereof must be given to the executor or administrator before the hearing. The petition of such applicant must contain as many of the matters required for the petition of the executor or administrator as he can ascertain, and the decree of sale must fix the period of time within which the executor or administrator must make the sale.17

Sec. 233. The notice of time and place of sale.

When a sale is ordered to be made at public auction, notice of the time and place of sale must be posted up in three public places in the county in which any part of the land to be sold is situated, and in the county where the order is made, and published in each of said counties in some newspaper printed in the county for two successive weeks. The lands and tenements to be sold must be described with common certainty in the notice. The day of sale must be at least fifteen days from the date of the first publication of the notice.18

Sec. 234. Where public sale must be made.

Sales at public auction must be made in the county where the land is situated; but when the land is situated in two or more counties it may be sold in either. The sale must be made between the hours of nine o'clock in the morning and the setting of the sun on the same day, and must be made on the day named in the notice of sale unless the same is postponed.19

17 Snyder, 5,317; Wilson, 1,661; Dakota Code, 1,531 (1887).

18 Snyder, 5,318, amended March 17, 1910, Sec. 7, Chap. 65, S. L. 1910. See Section 281 for form

for notice of sale of real estate by administrator; see Section 282 for proof of sale.

19 Snyder, 5,319; Wilson, 1,663; Dakota Code, 5,832 (1887).

Sec. 235. The notice in case of private sale.

When a sale of real estate is ordered to be made at private sale, notice of the same must be posted up in three of the most public places in the county in which the land is situated, and published in a newspaper, if there be one printed in the same county; if none, then in such paper as the court may direct, for two weeks successively next before the day on or after which the sale is to be made, in which the lands and tenements to be sold must be described with common certainty. The notice must state a day on or after which the sale will be made, and the place where offers or bids will be received. The day last referred to must be at least fifteen days from the first publication of the notice, and the sale must not be made before that day, but must be made within six months thereafter. The bids or offers must be in writing, and may be left at the place designated in the notice or delivered to the executor or administrator personally, or may be filed in the office of the judge of the county court, to which the return of the sale must be made, at any time after the first publication of notice, and before the making of the sale. If it is shown that it will be for the best interest of the estate, the court or judge, may, by order, shorten the time of notice, which shall not, however, be less than one week, and may provide that the sale be made on or after a day less than fifteen, but not less than eight days from the first publication of the notice; in which case the notice of sale and the sale may be made to correspond with such order.20

Sec. 236. The real estate must be sold for ninety per cent. of the appraisement.

No sale of real estate at private sale can be confirmed by the court unless the sum offered is at least ninety per cent.

20 Snyder, 5,320; Wilson, 1,664: Dakota Code, 5,833 (1887). See Section 283 for form for appraisal

at private sale; see Section 284 for form for bid.

of the appraised value thereof, nor unless such real estate has been appraised within one year of the time of such sale. If it has not been so appraised, or if the court is satisfied that the appraisement is too high, or too low, appraisers must be appointed, and they must make an appraisement thereof in the same manner as in case of an original appraisement of an estate. This may be done at any time before the sale or the confirmation thereof.21

Sec. 237. Balance of purchase price secured by mortgage.

The executor or administrator must, when a sale is made upon a credit, take the notes of the purchaser for the purchase money, with a mortgage on the property to secure their payment.22

Sec. 238. The executor or administrator required to make

return of his proceedings under the order of sale. The executor or administrator, after making any sale of real estate, must make a return of this proceedings to the county court, which must be filed by the judge, at any time subsequent to the sale, either in term or vacation. If the sale be made at public auction and the return is made and filed on or before the first day of the next term thereafter, no notice is required of such return or of the hearing thereof, but the hearing may be had on the first day of the term, or any subsequent day to which the same may be postponed. If the sale be not made at public auction, or if made at public auction, a hearing upon the return of the proceedings be asked for in the return, or is brought on for a hearing upon a day before the first day of the next term thereafter, or upon any other day than the first day of the next term after such sale, the court or judge must fix the day for the hearing, of which notice of at least ten

21 Snyder, 5,321; Wilson, 1,665; Dakota Code, 5,834 (1887); California, 1,550 (Kerr), identical. See

Section 276 for form for order appointing appraisers.

22 Snyder, 5,322; Wilson, 1,666; Dakota Code, 5,835 (1887).