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aid of the court in the premises. To such petition the widow or husband and heirs-at-law of such decedent, and the devisees of such real estate, if the same or any thereof be devised in the will of the decedent, and the guardians of such of them as may be minors, and all other persons having any interest in the premises, shall be made defendants.
Sub-Sec. 280. Summons shall thereupon be issued as in other civil causes.
Sub-Sec. 281. Service by publication may be had as in other civil causes.
Sub-Sec. 282. The proceeding upon such petition shall conform to the proceedings of courts of chancery and the issue shall be heard and determined as proceedings in chancery, under the rules of this Code; Provided, That no defendant shall be allowed to put in issue the decedent's title or interest to or in the lands named in the petition.
Sub-Sec. 283. Any person interested in the estate as a creditor or otherwise and not made defendant may appear and answer such petition or complaint, and show cause against the prayer thereof, at any time before final decree.
Sub-Sec. 284. Upon the hearing of the cause, upon the issues formed, or where the complaint may be taken for confessed, it shall be the duty of the court to hear proofs touching the matters alleged in the petition or in issue by the pleadings subsequent thereto, and if by such proofs it shall appear that the personal estate will be insufficient to discharge the just debts and claims allowed against the estate and the legacies charged thereon, and expenses of adminis. tration, the court shall determine as nearly as may be the amount of such deficiency, and may thereupon direct that the real estate, or such portion thereof as may be necessary, be sold or leased by the executor or administrator, or that the executor or administrator raise money for the discharge of such debts and legacies, by mortgage of all or any part of such real estate or that any part of such real estate be sold, and the residue, or any thereof, be mortgaged or leased, according as may seem most for the interest of all persons interested in the estate, due regard being had to the rights of all.
Sub-Sec. 285. If the court shall direct a sale of such real estate or any part thereof, the order shall specify the part to be sold, and whether such sale shall be for cash or upon credit, and if upon credit, the length thereof, and the rate of interest to be paid by the purchaser pending the same; if any such sale be upon credit the executor or administrator shall, before the delivery of a conveyance, take from the purchaser or purchasers a mortgage of the premises sold, to secure the due payment of the purchase money, unless the order of the court direct that other security be in lieu thereof.
Sub.Sec. 286. If the court shall direct that the executor or administrator raise money by mortgage on any of the real estate, the order shall specify the part to be mortgaged, a rate of interest not exceeding which, and a period for not less than which, such loan shall be made.
Sub-Sec. 287. If the court shall direct the executor or administrator to lease the real estate, or any part thereof, the order shall specify the part to be leased, for what length of time and upon what rents and conditions the lease may be made; Provided, That no lease shall be made for a term exceeding five years.
Sub-Sec. 288. The court may direct, in the alternative, that if the executor or administrator cannot, upon mortgage of the real estate, borrow the sum of money necessary at a rate of interest and for a length of time to be named, or cannot lease the same at the rents and upon the conditions named, that then a sale thereof, or of any part thereof, shall be made, specifying the part.
Sub-Sec. 289. Every sale of real estate of any decedent, in pursuance hereof, shall be made at such place as the court may direct, and upon notice as provided in Section 3113 of the Compiled Laws of 1897, if the sale be at public auction, but if in the opinion of the court it would benefit the estate of the deceased to sell the whole or any part of such real estate at private sale, the court may order such real estate or any part thereof to be thus sold by the executor or ad. ministrator; but such order for private sale shall not be made until the executor or administrator shall have made and returned into court an inventory of such real estate and caused the same to be appraised in the manner, as near as practicable, now prescribed for the appraisement of real estate levied upon by execution and such appraisement returned into court, nor shall such executor or administrator become the purchaser.
Sub.Sec. 290. In every such case the conveyance, mortgage or lease, by the executor or administrator, shall recite in substance the order of the court; and every such convey. ance, mortgage or lease, made in conformity with the order of the court, shall have the same effect to convey, incumber or demise the estate which the decedent in his or her lifetime had in the premises; as if made by such decedent in his or her lifetime; but no final conveyance of any estate so sold shall be made until approval of the proceedings of the executor or administrator by the court, as hereinafter mentioned.
Sub-Sec. 291. Within ten days, or as soon thereafter as practicable, succeeding any such sale, mortgage or leasing, the executor or administrator shall present to the court or judge thereof a report of his proceedings in the premises, accompanying such report, in case a sale has been made, with the advertisement thereof, and proof of the publication of the same, and also with his affidavit that he did not directly or indirectly purchase any part of the real estate sold, and has no interest, direct or indirect, in any such purchase.
Sub Sec. 292. If such report be approved by the court or judge thereof, the executor or administrator shall execute his conveyance of the premises, sold, to the purchaser or purchasers, as herein before provided.
Sub-Sec. 293. If such report of sale be not approved the sale shall be void, and the court or judge thereof may order a re-sale of the same premises.
Sub-Sec. 294. If any decedent shall have left lands incumbered by mortgage, judgment, execution, sale or other lien, and shall not have devised the same or provided by will for the redemption thereof, the district court, upon complaint as provided by this Article, if it shall appear to be for the interest of the heirs, legatees, and creditors to order the executor or administrator to redeem the same out of the proceeds of other real estate, may direct that other lands be sold to redeem the same.
Sub-Sec. 295. When any executor or administrator shall remove from this Territoryor resign or die, before completing any proceedings commenced under the provisions of this Article, after the sale of any real estate of his testator or intestate in pursuance hereof, and before executing a deed there. of, or after an order for the sale, mortgage or leasing of any such real estate has been made in pursuance hereof, and before the full execution of such order, the district court or judge thereof may direct that the survivor or successor of such executor or administrator shall complete such proceedings, execute such conveyance, mortgage or lease, or complete the execution of such order, and the resignation or death of any or all of such executors or administrators or the death of any one or more of the defendants shall not abate the proceedings, but they shall procecd against the surviving defendants and the legal representatives and heirs of such defendants.
Sub-Ser;. 296. Whenever in this Article the district court or the judge thereof is referred to, it shall mean and be construed to mean the district court in a regular term or the judge thereof sitting at chambers anywhere in the district, or while in attendance upon the supreme court, and the acts of said judge sitting at chambers in his district or while in attendance on the supreme court shall be made a matter of record in the record of the district court for the county in which the proceedings shall be commenced, and his said acts as such shall ave the same force and effect as if done at a regular term in the county in which the proceedings may be pending, and shall not for that reason be held or deemed invalid.
Sub-Sec. 297. In case all the executors and administrators of any will or estate shall refuse to commence or carry on the proceedings authorized by this Article in any proper case, when there may be more than one executor or administrator, any one or more of them may commence and carry on the same, making the remaining executors or administrators parties defendant and alleging the fact that they refuse to join as complainants, and in case none of the executors or administrators will commence or carry on said proceedings in any proper case, any one or more of the creditors whose claim may have been allowed properly in the probate court may do so, by complying as near as may be with the terms of this Article, and by making such administrators or executors parties defendant, and alleging the fact of their refusal to commence the proceedings or carry them on.
ARTICLE XVIII.-GENERAL PROVISIONS. Sub-Sec. 298. Service by publication in actions for divorce, actions to foreclose liens, and all civil actions, shall be had and obtained in conformity with the rules in this Code of Civil Procedure; and Section 1433 of the Compiled Laws of 1897 relating to divorce and Section 2225 of said Compiled Laws relating to liens are hereby repealed.
Sub-Sec. 299. Sub-Section 175 of the Code of Civil Proce. dure and all amendments thereof, are hereby repealed, and in lieu of said Sub-Sections, it is hereby provided as follows, to-wit:
This Code of Civil Procedure shall not apply to or in any wise affect proceedings for habeas corpus, mandamus, prohibition, quo-warranto, proceedings in assignmentas covered by Chapter 6, Title 33 of the Compiled Laws of 1897; proceedings for condemnation and eminent domain; but this Code of Civil Procedure shall affect and control the procedure in all other civil actions in the district courts in this Territory.
Sub-Sec. 300. The following Chapters and Sections of the Statutes of this Territory are hereby repealed, to-wit: All of Chapter 2, Title 33 of the Compiled Laws of 1897, relating to attachment; all of Chapter 3, Title 33 of the Compiled Laws of 1897, relating to replevin; also Sections 6, 7, 8, 9, 10 and 11 of Chapter 75 of the Laws of the
33rd Legislative Assembly (1899): also Sections 12 and 13 of Chapter 80 of the Laws of the 33rd Legislative Assembly (1899); also Section 1 of Chapter 5 of the Laws of the 35th Legislative Assembly (1903); also Sections 6, 7, 8, and 9 of Chapter 114 of the Laws of the 36th Legislative Assembly (1905); also the following Sections of the Compiled Laws of 1897: 2912-A, 2939, 2940, 2941, 2952, 2953, 2954, 2955, 2956, 2957, 2958, 2959, 2964, 2965, 2966, 2967, 2969, 2970, 2971, 2972, 2973, 2974, 2975, 2976, 2977, 2978, 2979, 2980, 2981, 2982, 2983, 2984, 3000, 3001, 3068.
Sub Sec. 301. All pleas in abatement, except pleas to the jurisdiction as to the subject, shall be under oath.
Sub-Sec. 302. Hereafter, whenever any judgment may be rendered in any of the courts of this Territory on any plea in abatement, and such judgment shall be against the said plea or the matters therein pleaded, or such plea shall be amended or not sustained, the judgment of the court shall give the party interposing such plea in abatement leave to plead over and set up any further matter of defense which might have been pleaded or set up if such plea in abatement had not been interposed.
Sub Sec. 303. The order of pleading shall be as follows, that is to say:
1. Legal exceptions;
II. Pleas in abatement; 1st, to the jurisdiction as to the subject matter; 2nd, as to local jurisdictions; 3rd, as to the disability or misnomer of the person, either the plaintiff or the defendant;
III. Answer in bar of the action.
Sub-Sec. 304. When any party to a suit, either as principal or security, or indorser, founded on any written contract, covenant or agreement whatsoever, shall deny his signature, he shall do the same under oath.
Sub-Sec. 305. In all cases where a suit has been instituted upon any writing obligatory, or may be so instituted, the execution of the instrument shall be regarded as proved, and the plea of non est factum shall be regarded as unavailing, until the person filing such plea shall have made oath that he never executed the said instrument, nor authorized any person to execute it for him.
Sub Sec. 306. In case of the assignment of a thing in action, the action by the assignee shall be without prejudice to any set-off, counter claim or other cause of action or defense, whether matured or not, if matured when pleaded, existing in favor of the defendant against the assignor, before notice of the assignment; but this shall not apply to ne.