The plaintiff's administrator asks for license to sell two tracts of land of the estate of his intestate to pay debts, and we agree with his Honor that he is entitled to the license. But Sally Pitts, the widow of the intestate, comes in and asks to be made a defendant, and claims as her individual property one undivided eighth part of one of the tracts, the Miller tract, and that the same shall be allotted to her. The clerk refused to allow her to litigate her rights, upon the ground that he had no power to try the title. The case was appealed from the clerk to the Judge, and he affirmed the decision of the clerk.
In this we think his Honor erred. Upon the supposition that Sally Pitts had an interest in the land as claimed, the plaintiff had no right to could her title by a sale under an order of the Court. And his Honor ought to have had an inquiry as to her title, and if found for her to have allotted her share, or else provided that a share of the proceeds of sale equal to her interest in the land should be paid over to her by the plaintiff. Her rights might have been passed upon by submitting an issue to a jury.
There is error. This will be certified, that further proceedings may be had in conformity with this opinion.
NOTE — The tract of land not in dispute may be sold in the meantime.
PER CURIAM. Order accordingly. *Page 157