(dissentmg). — I am unable to agree with the opinion of the majority. It seems to me it is more a forcible argument of what the law ought to be than what it really is. Before the enactment of § 1524 it will not be contended that under such proceeding as was had in this case the purchaser would have taken anything. By virtue of that enactment he takes the identical interest specified by the statute, and nothing more, and no question of economy in the administration of the estate can be taken into consideration in construing it. In fact it seems to me that the provisions of this statute are set out in language so plain and unambiguous that there is no room for judicial construction. The words “which conveyance shall, be effectual to convey to the purchaser all the right, title and interest which the deceased would have had in the property had not the same been mortgaged by him,” seem to my mind to enunciate a plain, straightforward proposition, viz., that the purchaser under the sale obtains the interest of the deceased, and not the interest of the deceased and somebody else, no matter whether that somebody else chances to be his partner, his wife, or some other person. The legislative mind might possibly not have conceived the most harmonious or best system of settling estates in the probate court; but when the legislative will is expressed in language plain and unequivocal, no meaning should be attached to it by the court which is not justified by the language, because, in the opinion of the court, it would make a better law and relieve litigants of trouble or expense.
*370In answer to the complaint of the respondent, that her property was sold away from her without notice, the appellant asserts, and the majority decide, that because this was a proceeding in rem no notice except that provided by statute was necessary, and that the court had jurisdiction of all of the property. And many cases are cited to show that where courts have power to sell the estate of intestates, their action operates on the estate and not on the heirs of the estate, and that the sale is a proceeding in rem, to which all claiming under the intestate are parties, etc., I raise no question as to the soundness of the doctrine enunciated in those cases, but I insist that under the statute the res, or thing which the court had control of, was not the interest which the respondent had in the mortgaged premises, but the interest which the decedent had in it; and under the decisions cited by appellant, doubtless all persons claiming under that interest are parties and entitled only to the notice provided by the statute. But the respondent is not claiming under such interest; she is claiming under her own interest; she gave a mortgage on her interest in the land and that mortgage has never been foreclosed. If it has been sold at all, it has been sold without notice to her; she has not had her day in court, and is, therefore, not bound by any action with reference to it.
But I maintain that her interest in the land never has been sold, and that there was no attempt to sell it either by the probate court or by the administrator. The record shows that they construed the statute according to its plain language and import. In the order of sale the court ordered the administrator, upon the payment of the money, to execute a conveyance to the purchaser which should convey to such purchaser, not all the interest which the mortgagors had in the property, but “all the right, title and interest which the deceased would have had in said property had not the same been mortgaged by him.” *371And, in accordance with said order, the administrator did, on the 18th day of September, 1880, execute, acknowledge and deliver to said purchaser a deed of “all the right, title, interest and estate of the said John H. Ryan, deceased, at the time of his death, and also all the right, title and interest which the said deceased would have had in said property had not the same been mortgaged by said deceased.” I cannot understand how a deed conveying a special interest mentioned, as this deed does, founded on such an order of sale as this deed was, and based on a statute equally restrictive, can be construed to convey an interest which is not expressed. The right, title and interest which the decedent would have had in the land, if he had not mortgaged it, is conceded to have been an undivided one-half interest; that undivided one-half interest is what the law authorized the court to order sold; that undivided one-half interest is what the court did order sold, and what the deed shows was sold. It seems to me that the conclusions of law as stated by the lower court flow irresistibly from the facts found in this case, and that the judgment should be affirmed.