Pelham, Adm'r of Ryan, vs. Wilson, Cravens, et al., 4 Ark. 289

By the Court, Dickinson, J. The ftrst inquiry is, to whom did the improvement pass, upon the death of Ryan? To the administrator, or to the heirs? The interest that a party possesses in an improvement upon public land, is of a peculiar kind, and known only to our laws. He certainly has a possessory right or interest against all the world but the United States; and this is secured to him upon the principles of natural justice.

It partakes, in some degree, of the nature of a chattel real, which Sir Edward Coke says, “ concerns or savors of the realty,” as being an interest issuing out of, or annexed to, real estate, of which they have one quality, viz: immobility, belonging to the realty, but want sufficient duration to constitute them chattels; such for instance, as a term for years; wardship in chivalry, while military tenures existed; the right of presentation to a church; statute staple; leases, and the like; and a tenantry, from year to year, as long as both parties please.

All these interests vest in the personal rep re-sentatives of the deceased. The case of a tenancy, from year to year, determinable at the pleasure of either party, so passes, says Toller, in his Treatise on Executors, 139; 2 Black. Com. 312; Dukehart and Wife vs. State, 4 Har. & John. 506. Whether the interest would pass differently, if there was a right of pre-emption to the improvement, is a question not properly before us, and will not now be considered.

We think it, however, clear, that the personal representatives of the deceased had a right to sell the improvement, without the intervention of the Probate Court. The testimony is so contradictory, and so ambiguous and uncertain in its character, that, though we consider it as slightly preponderating in favor of the appellant, yet it is not so conclusive as to satisfy our minds, as to the kind and extent of title sold; for, if the administrator sold, and Cravens understood that he was purchasing, a pre-emption right, and that fact had been substantiated, he would certainly have been entitled to relief.

If, however, the improvement alone was sold, then it is equally as clear that he bought at his peril, and must comply with his contract. Upon the whole view of the case, as presented by the bill, answer, and depositions, we are of opinion that the decree directing the obligation of the appellees to he cancelled and delivered up, ought to be reversed, with costs, and the case remanded for a hearing de novo, and that each party have leave to take additional proof, if asked for.