GEORGE L. GIBSON, Adm’r, v. MARY E. PITTS et al.

Upon a petition by an administrator to sell land for the purpose of mating assets to pay debts, any person who claims to be the owner of tire land has the-right to be made a party and to have an inquiry made as to his title in due course of law.

This was a petition by the plaintiff as administrator of Moses Pitts, filed before the clerk of the Superior Court of Cabarrus county, for the sale of certain lands of his intes*156tate to make assets for the payment of the debts of the intestate. It was taken 'by appeal to the Superior Court, where at the last term it was decided by Logan, J"., in favor of the plaintiff, and the defendants appealed. The case is sufficiently stated in the opinion of the Court.

Note.—The tract of land not In dispute may be sold In the meantime.

R. Barringer, for the defendants.

W. H. Bailey, for the plaintiff.

Reade, J.

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 cloud 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.

Per Curiam. Order accordingly.