a purchaser thereat. Motley v. Motley, 53 Neb. 375 (73 N. W. Rep. 738). Where the proceedings disclose that the decedent left a widow, a purchaser at a sale to pay debts, takes subject to her dower rights, under Neb. Comp. Stat., ch. 23, although she was a party to the proceedings and attended the sale without making any assertion of such right. Motley v. Motley, 53 Neb. 375 (73 N. W. Rep. 738). Where, at a void administrator's sale, of the mansion house and messuages of her deceased husband, a widow purchases the land and her money is used to extinguish demands against his estate, she is entitled to the payment of the amount paid as a condition precedent to an action by the heirs to assign her dower in such land, but the rights of her vendees in reference to improvements, should be left for adjustment between them and the heirs after the dower is fixed.

(40 S. W. Rep. 661).

Carey v. West, 139 Mo. 146

Sec. 349. Validity of sales-Setting aside. The fact that land sold at an administrator's sale for only enough to pay the costs of the administration, does not defeat the sale. Howell v. Jump, 140 Mo. 441 (41 S. W. Rep. 976). A sale by the administrator of a deceased vendee to pay the purchase price, will be held void as against his heirs, where it appears that the vendor, administrator and the widow of the vendee all collusively combined to enable the widow to bid in the land at less than its salable value. McQueen v. McDaniel,

Ky. (38 S. W. Rep. 880). Where there is no attempt to follow the provisions of the statute (Cal. Code Civ. Proc, § 1536, et seq.), regulating the sale of a decedent's real estate, the sale is void. The statute applies to a sale to pay expenses charged against an estate of less than $1,500 in value, which is to be distributed under § 1469. Wills v. Pauly, 116 Cal. 575 (48 Pac. Rep. 709). An administrator's sale, otherwise regular, will not be set aside as against one who purchased thereat in good faith and for full value, because the notices of the sale were not posted in the places required by law, but were posted in places more likely to secure a good sale. How. Ann. Mich. Stat., § 6040, construed and applied. Averill v. Jackson City Bank, 114 Mich. 20 (72 N. W. Rep. 15). An administrator's sale will not be held invalid where

the property was advertised for sale subject to a specified annual ground rent because the rent is under a sublease and the property is a part only of the original demised premises rented in gross, it appearing that the rental stipulated under the sublease has been accepted for more than twenty years by the owner of the original reversion. Connaughton v. Bernard, 84 Md. 577 (36 Atl. Rep. 265). Particular fact case in which it is held that an administrator's sale will not be set aside on account of the property being subject to a slight easement. Connaughton v. Bernard, 84 Md. 577 (36 Atl. Rep. 265). Minn. Gen. Stat. 1894, § 4612, construed and applied—particular administrator's sale held void. Buntin v. Root, 66 Minn. 454 (69 N. W. Rep. 330). Particular defects held sufficient to invalidate a sale Cates v. Cates, W. Rep. 276).

Ky. (41 S.

Sec. 350. Collateral attack upon sales. A judgment ordering a sale of land for assets can be set aside only in a direct proceeding for that purpose. Rawls v. Carter, 119 N. C. 596 (26 S. E. Rep. 154). Where a petition is sufficient to confer jurisdiction, an order of sale made thereunder is not subject to a collateral attack. In re Devincenzi's Estate, 119 Cal. 498 (51 Pac. Rep. 845). Where the validity of an order for the sale of lands made by a court of general jurisdiction is challenged in a collateral proceeding, that court will be presumed to have had before it and to have passed upon all those matters, the existence of which was necessary in order to authorize the making of such order. Clark v. Costello, 59 N

J. L. 234 (36 Atl. Rep. 271).

Sec. 351. Purchase by executor or administrator at his own sale. The purchase of land by an executor, directly or indirectly, at his own sale is fraudulent; and the sale will be set aside whether the property has brought a fair price or not and without any allegation of actual fraud unless it has been ratified by the parties interested in the lands. Shute v. Austin, 120 N. C. 440 (27 S. E. Rep. 90). But an administrator purchasing at his own sale when legally conducted, acquires the legal title subject to the equitable right of interested parties to set aside the sale for sufficient cause. Heirs of

a decedent cannot set aside such a sale where the price was adequate and the proceeds were absorbed by creditors who were satisfied with the sale. Highsmith v. Whitehurst, 120 N. C. 123 (26 S. E. Rep. 917). In Alabama it is held that "where, under an order of sale of lands of his intestate, granted by the probate court upon his petition, the admistrator becomes the purchaser, the heirs are entitled to notice of the proceedings after the sale; and, if this notice is not shown to have been given, a deed executed under the proceedings will be held void on collateral attack." Allison v. Allison, 114 Ala. 393 (21 So. Rep. 1008). Applying La. Rev. Civ. Code, art. 1146, 1790, it is held that a purchase by a tutor administering a succession, at his own sale, is absolutely null and void. Aronstein v. Irvine, 49 La. 1478 (22 So. Rep. 405). Particular evidence held to show that a purchase made by a third party was for the administrator. McNeill v. Fuller, 121 N. C. 209 (28 S. E. Rep. 299).

Sec. 352. Statutes amended and new statutes. Ida.Rev. Stat., §§ 5499-5503-disposition of mining interests of decedents amended, Laws 1899, p. 377. Minn. Laws 1899, p.66-irregularities in sales by probate courts validated. Minn. Laws 1899, p. 226-act to enable executors, administrators or guardians to convey to school districts lands to be used as a school house site. N. J. Laws 1899, p. 230-act empowering guardians,executors or trustees to mortgage real estate. N. Dak. Laws 1899, p. 151-act to provide for mortgaging the real estate of deceased persons. Ohio Rev. Stat., § 6145-power of court to determine equities and priority of liens and provide for distribution of proceeds of sale-amended, Laws 1898, p. 287. Utah Rev. Stat., § 3889-petition to sell decedent's lands -notice and order of hearing-amended, Laws 1899, p. 23. Wis. Rev. Stat., § 3919, amended by adding § 3919a-when irregularities in proceedings are not to bar a sale. Laws 1899, p. 275.

FENCES.

EPITOME OF CASES.

Sec. 353. Partition fences. Cal. Stat. 1885, p. 45, "regulating the height of division fences and partition walls in cities and towns," does not apply to a structure standing wholly on the lot of the owner thereof. Ingwersen v. Barry, 118 Cal. 342 (50 Pac. Rep. 536). A decision of fence viewers under 3 How. Ann. Mich. Stat. § 799, as to the cost of building or repairing a division fence by one owner in pursuance of their order, is conclusive and the statute is not unconstitutional because it does not expressly provide for notice of the meetings of such fence viewers as it contains an implied provision for such notice; nor is the statute unconstitutional because it makes the sum assessed by fence viewers a lien on the land. Gilson v. Supervisor, 114 Mich. 671 (72 N. W. Rep. 994). N. J. Gen. Stat., Vol. 2, p. 1461 construed and applied-division of partition fences-ownership of materials-adjudication of township committee. Titman v. Smith, 61 N. J. L. 191 (38 Atl. Rep. 810).

Florida Cent,

Sec. 354. Fencing railroads-Statutes construed"Enclosed lands" defined. Only an owner of lands through which the track of a railroad company runs, can maintain an action against such company for failure to com ply with Ga. Laws 1889, p. 158, requiring it to construct cattle guards. & P. R. Co. v. Judge, 100 Ga. 600 (28 S. E. Rep. 379). A statute (Mont. Acts 1891, p. 267) requiring railroad companies to fence their roads by fences "suitable and amply sufficient to prevent live stock from getting thereon" or else respond in damages for animals killed or injured except when occasioned by the willful act of the owner or his agent and allowing double damages when not paid within thirty days after notice thereof, is constitutional. Beckstead v. Montana Union Ry. Co., 19 Mont.

147 (47 Pac. Rep. 795). Neb. Comp. Stat., ch. 72, art. 1, § 1, construed and applied-duty of railroad company as to fer.cing its track-rights of land owner to recover for the erection of fence. Chicago B. & 2. R. Co. v. Lyon, 50 Neb. 640 (70 N. W. Rep. 261). For a discussion as to the extent of "depot grounds" or "yard limits" which a railroad may claim as exempt from a statute requiring it to fence its right of way, see Rabidon v. Chicago & W. M. Ry. Co., 115 Mich. 390 (73 N. W. Rep. 386; 39 L. R. A. 405).

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66

Construing and applying Va. Code, § 1258, requiring railroads to fence all their road bed running through "enclosed lands," it is held that the term " enclosed lands" means lands surrounded by a tangible obstruction, natural or artificial, which shuts it off as private property; that the fence need not be a lawful fence; and a lessee of several contiguous tracts belonging to different owners, need not maintain partition fences between them in order to bring the land within the meaning of the statute. Kimball v. Carter, 95 Va. 77 (27 S. E. Rep. 823; 38 L. R. A. 570). The court say: "The term inclosed lands' is to be interpreted in accordance with the common and ordinary definition of the words used, there being nothing whatever to indicate that they were otherwise employed. Webster defines 'enclosed' or 'inclosed,' applied to lands, as 'separate from the common grounds by a fence;' citing Blackstone. Worcester defines it: To part off or shut in by a fence; to set off as private property,'-citing London Enc. A fence is defined to be 'an inclosure about a field or other space, or about any object; especially an enclosing structure of wood, iron, or other material, intended to prevent intrusion from without or straying from within.' Webst. Dict. A line of obstacle, as a frame of wood, a wall, hedge, or ditch interposed between two portions of land for the purpose of preventing cattle from going astray, or for protecting a field or property from unlawful encroachment.' Worcester, Dict. The supreme court of Vermont, in Porter v. Aldrich, 39 Vt. 326 (cited in 6 Am. & Eng. Enc. Law, at page 639), says: The word "inclosure" imports land enclosed with something more than the imaginary boundary line. There should be some visible or tangible obstruction, such as a fence, hedge, ditch, or something equiv

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