
    William Thompson versus Jesse Brown and John Brown.
    Executors, who were also residuary devisees and legatees, gave bond in the probate office, with sureties, conditioned to pay all the debts and legacies ; and they died in ten years after proving the will of their testator, leaving many of his debts unpaid. Administration de lords non was granted ; and the administrators, having filed a list of debts and returned an inventory of the real estate, obtained, by the aid of the Probate Court, a license from the Court of Common Pleas, to sell the same for the payment of those debts. The license and all the proceedings under it were holden to be void.
    This was a writ of entry upon disseisin, for land in Charlestown, wherein the demandant declared upon his own seisin within thirty years, and upon a disseisin by the tenants; who claimed to hold the same in fee against the demandant. The cause was submitted to the decision of the Court, upon the following facts stated and agreed by the parties.
    One John Harris died seised of the demanded premises in October, 1804, having made his last will, by which he gave sundry legacies, ordered all his debts to be paid, and made his brothers Thomas H and Jonathan H. executors and residuary devisees and legatees of his whole estate real and personal. The testator owed large ums at the time of his decease, and he was seised and possessed of a large real and personal estate.
    [ * 173 ] * On the 25th of October, 1804, the said executors duly proved the will, gave bond with sureties in the sum of 200,000 dollars to pay the debts and legacies of the deceased, and, pursuant to the order of the Probate Court, gave due notice of their appointment and of their acceptance thereof; but they never returned any inventory, nor rendered any account into the probate office
    The executors took possession of the real and personal estate, and divided the same between them, having paid some of the testator’s debts and legacies. In 1805, they divided the whole of the real estate by mutual conveyances, all which were soon after duly registered. The demanded premises were released by Thomas to Jonathan, who continued seised thereof until February, 1813, when Thompson, the demandant, having obtained a judgment against John Harris, Richard D. Harris, and the said Jonathan, levied his execution upon the demanded premises, in due form, as the property of Jonathan, and in satisfaction of the said judgment; which execution, with the doings thereon, were duly recorded and returned.
    From the time of the said levy, until ousted by the tenants, as hereafter stated, Thompson, the demandant, continued seised of the demanded premises, receiving the rents and profits. At the time of the levy, the now tenants were the lessees of the demanded premises under Jonathan Harris, and after the levy they continued to occupy thé same under the demandant, paying him rent from time to time ; until they claimed to hold the same in fee, under the sale hereafter mentioned.
    
      Thomas H, one of the executors, died in June, 1814, and Jonathan H, the other executor, died in August following. In November of the same year, Thomas H, son of the first-named Thomas, and Richard D. Harris, son of the above-named Jonathan, were appointed administrators de bonis non, with the will annexed, upon John Harris’s estate. They gave bonds according to law, and due notice of their appointment pursuant to the order of the [ * 174 ] judge of probate. *On the 10th of January, 1815, they returned an inventory into the probate office, of real estate only, amounting to 51,987 dollars ; in which they state that no personal estate, not administered upon by the executors, had come to their knowledge. On the 3d of June, 1815, they filed in the probate office a list of claims against the estate of John H. amounting to the sum of 28,703 dollars, 34 cents, the greater part of which was secured by mortgages of lands in Charlestown, belong ing to the said John, and included in the residuary devise ; and all of which were payable before his death, except about 10,000 dollars, payable in five years after that event. Among the said claims were two' annuities of 300 dollars each during the lives of the respective annuitants. No suit was ever commenced by either of the annuitants, nor by any of the said creditors, against the executors or against the administrators de bonis non; except by one of the creditors for about 5000 dollars, whose action was pending at the death of the executors,' and whose demand was afterwards paid by the administrators de bonis non, before final judgment was rendered. But the executors paid interest upon the debts, from time to time, until their deaths.
    Upon the exhibition and filing of the said list of claims, the judge of probate made his certificate, and the administrators obtained a license from the Court of Common Pleas for this county, to sell the real estate of the testator to the amount of the said claims, and for the payment of the same. Interest was reckoned upon all the said claims, and the annuities were cast to a day posterior to the application, and they were both included in the amount for which the sale was authorized. In pursuance of that authority, the administrators sold the demanded premises to the tenants in November, 1815, at public auction, pursuant to a previous advertisement.
    When the administrators de bonis non took upon themselves that trust, they well knew of the division of the estate of John H. between the residuary devisees, as above * stated; [*175] they knew that the demanded premises had been assigned to Jonathan in that partition, and that Thompson had levied his execution thereon as Jonathan’s estate; and when they sold the land as aforesaid, they knew that Thompson continued to hold the same under his execution. The present tenants also knew all these facts, when they purchased the land; and before and at the time of the sale, were cautioned by the demandant not to purchase the same, and were informed by him of all the circumstances, which would in his opinion render the sale void. No notice was given to the demandant, nor had he any notice whatever that the administrators had filed or were about to file any list of claims against the testator’s estate; nor that they had or would apply for license to sell the real estate aforesaid, until the said license was granted. Nor did the Court of Common Pleas order notice to be given to any person, before granting said license.
    
      If, upon the facts agreed, the Court should be of opinion that the demandant ought to recover, the tenants were to be defaulted; otherwise the demandant was to become nonsuit, and judgment rendered for the prevailing party accordingly with costs.
    The cause was argued, October term, 1817, by Gorham, for the demandant, and W. Austin, for the tenants.
    
      Gorham. More than four years having elapsed after the death of John Harris, the original testator, before the application by the administrators de bonis non for license to sell his real estate, the lien of the creditors upon that estate had ceased. The creditors could, at that time, have maintained no action for their debts. If the Court of Common Pleas had been sufficiently informed of the existing state of things, they would not, and certainly they ought not, to have granted the license which they did . If that court had authority to grant the license, it could only be done after notice to all concerned. If notice had been given, the demandant could successfully have resisted the application, under the authority of the L * 176 ] case of * Scott vs. Hancock. If want of notice will not, of itself, avoid these proceedings, it must assuredly have that effect, when it appears that the demandant had a valid objection, of which he could not avail himself, for want of such notice.
    If the license was otherwise legally granted, it authorized the sale of lands for portions of the annuities not due, and for interest on the debts beyond the time of the application, which could not be legal.
    But the great point, upon which the demandant principally relies, goes further back. We contend that the executors having given bond, with sufficient sureties, for the payment of all the debts and legacies, there was no authority in the Court to license the sale of the real estate, within the provisions of the statute. No inventory being returned or by law required, the amount of the personal estate could never be known. Of course the judge of probate could never certify that- there was a deficiency of personal assets; nor could the Court of Common Pleas know that fact in any other legal way. If there be a bond in common form, and an inventory returned, and the personal estate is sufficient to meet all the claims, and in such case the executor should waste the personal effects, he could never obtain leave to sell the land, but must answer on his bond for the waste. By giving bond, as in the present case, for the payment of all the debts and legacies, the executors acknowledged assets to the amount, of those claims ; and they could never afterwards deny it, and so procure permission to sell the lands of other devisees. Creditors might still levy upon the lands of the testator; or, if these were all taken ,by other creditors, might upon scire ,facias have execution against the executors personally. If this be not so, executors thus situated might render the estate of their testator insolvent; although they have acknowledged, under their hands and seals, that there was sufficient to pay all lawful claims.
    * There being an administration de bonis non has no [ * 177 ] effect to prevent the application of this reasoning in the present case. If the estate was once sufficient, it must be always so. If the first executors had given bond in the usual form, or had they been administrators, their wasting the personal estate would never warrant an application, by the administrators de bonis non, for a license to sell the real estate.
    
      Austin. The tenants claim under a fair and public sale, authorized by an order of a court having competent authority of the subject matter. If the court had jurisdiction in the case, a title acquired under its order stands on high ground ; and this Court will not lightly disturb a possession so derived. In the case of Perkins vs. Fairfield 
      
      , administrators sold the land in dispute under a license of Court, but'gave no bond, as required by the statute. Yet the Court held the title good under the sale ; and they put it on the ground that the Court had jurisdiction of the subject matter. “ If that jurisdiction,” says the Court, “ was improvidently exercised, or in a manner not warranted by the evidence from the Probate Court, yet it is not to be corrected at the expense of the purchaser, who had a right to rely upon the order of the Court, as an authority emanating from a competent jurisdiction.” Lands of a deceased person are liable to the creditor, in the hands of the alienee of a devisee . So a creditor may extend his execution on real estate fraudulently conveyed by his deceased debtor; or the administrator, being licensed to sell the estate of his intestate, may sell estate so conveyed, in whose hands soever it may be . In Leverett vs. Harris, which was a question upon a sale by an administratrix under a license of the Court, the Court say, “ The grantee purchased in reliance on the authority of a court of competent jurisdiction. To deprive him of a property he thus acquired would, in our opinion, be to act in opposition * to the most established [ * 178 ] principles, and very much endanger the security of titles ” .
    The demandant is a mere stranger, has no privity with the estate, nor with the testator. He had no more right to levy his execution upon the land of John Harris, the testator, than upon any other lands within the commonwealth. Nor has he a right, being such stranger, to question the validity of the order of Court, or the sale under it .
    The executors continuing to pay interest on the debts was equiv aient to the commencement of an action against them, to protect the claims from the operation of the statute of limitations.
    
      
       13 Mass. Rep. 162, Scott vs. Hancock. —Ibid. 201, Brown vs. Anderson.
      
    
    
      
       11 Mass. Rep. 228.
    
    
      
       3 Mass. Rep. 523, Gore vs. Brazier. —4 Mass. Rep. 150, Wyman vs. Brigden, S. P.
      
    
    
      
       4 Mass. Rep. 354, Drinkwater vs. Drinkwater
      
    
    
      
       7 Mass. Rep. 296. —See, also, 1 Dall 481, —2 Dall. 291. —Amb. 185.
    
    
      
       7 Mass. Rep. 488, Knox Al. vs. Jenks.
      
    
   Parker, C. J.

The principles, which lead to a decision of this cause, have frequently been recurred to and settled in other causes. In the case of Scott vs. Hancock, it was decided that license should not be granted to an administrator to sell the real estate of the intestate to pay debts, after an unreasonable time had elapsed without any suit having been brought by a creditor against the administrator; and for this reason principally, that the administrator might and ought, if sued, to plead the statute of limitations.

In the case of Brown & Al. vs. Anderson, Adm. , it was distinctly stated that an executor or administrator is bound, virtute officii, to plead the statute, whenever a debt is claimed which would be barred by it; and therefore no promise of the executor or administrator could operate to defeat the statute so pleaded .

In the case of Allen, Pet. , it was determined that an executor, having paid the debts and legacies of the testator, should not have license to sell the real estate, to reimburse himself; he having suffered more than four years to elapse, before he exhibited his account to the judge of probate, and the estate having been by him conveyed.

The principles governing these cases necessarily produce [ * 179 ] a decision in that now before us that the license to * sell, obtained by the administrators de bonis non, was void, and that all the proceedings under it are nugatory.

The debt, for which the land was sold, was due from the estate of John Harris. He died in the year 1804, having made his will, by which he constituted his brothers Jonathan and Thomas his executors and residuary devisees. They gave bond in the probate office, with sureties, to pay all the debts due from the deceased, and all the legacies given by his will; and, not being obliged by law to return an inventory, they did not in fact return one. The bond so given is the security intended by the statute for the creditors and legatees ; if insufficient, it is the fault of the administrators, or the effect of accident and misfortune occasioned by the lapse of time. It never was intended, that persons having claims should trust to this personal security, until the time of limitation had occurred; and then resort to the lands of the testator, which, in the mean time, may have passed into different hands by legal conveyances, which the executors have power in such case to make.

We think it clear that no executor, who is residuary devisee, and has acquired a perfect title to the estate , by giving the bond required by law, for the payment of the debts and legacies, ought to hi ve license to sell the real estate, to discharge his obligations. Nor is such license in any degree necessary ; as an executor, so circumstanced, may sell without such license. The statute itself carries with it a prohibition of a license in such a case; for, there being no inventory, it is impossible for the judge of probate to make the certificate, which is necessary to give authority to the court.

The land demanded in this suit was legally settled upon Jonathan Harris, by virtue of a release from his co-devisee ; and it has been duly extended upon, to satisfy a debt of the said Jonathan. Thompson, the demandant, is to be considered in the light of a purchaser for a valuable consideration. Now, to permit the administrators de bonis *non of John Harris to defeat this title, [ * 180 ] by selling the estate as belonging to the deceased testator, would be manifestly unjust, and, we think, as contrary to the principles of law as to those of equity. By this means a negligent creditor, whq is barred by the statute of limitations from recovering his debt, may, contrary to the intention of the statute, disturb titles solemnly established; and obtain, by the mere will of such administrator, what the law considers him to have forfeited by his own negligence.

The lands of a deceased debtor are indeed charged, by the statute, with his debts ; but the lien cannot continue beyond the time fixed by the same statute, within which the creditor has a right to pursue his remedy. If he commence his action within four years after public notice of the trust undertaken by the executor or administrator, he may levy upon the lands of the deceased, in the hands of heirs, devisees or purchasers ; or the executor or administrator may have license to sell the real estate, if the personal be not sufficient, in ordinary cases. But where the executor, being residuary legatee and devisee, has given bonds to pay the debts and legacies; although the creditor may have a right to levy within the time limited by law, the executor has no right to sell under a license of Court. He has, without such license, a subsisting right; and a license can only be necessary, when the purpose is to defeat titles he has himself created. But the law will not aid him in such project; and if he should obtain a license, after the lien in favor of creditors has ceased, it must be considered as having been improvidently granted ; and a sale under it would, of course, be void against those who had previously acquired a title under the executor.

It has been argued by the counsel for the tenants, that as the ícense, under which the sale in this case was made, was obtained by administrators de lords non, and not by the executors, the case is more favorable to the tenants. But when the authority of the administrators commenced, the lien upon the estate was [ * 181 ] gone; and besides * we are to look to the original condition of the estate, and consider the bond of the executors as the only security for the creditors; unless within the time of limitation they prosecute their action, and levy upon the land.

As to the case of annuities, the right to which may not have accrued within the period of four years, if they are a charge upon the land, the annuitants must pursue their legal remedy ; but cannot, by the aid of the executor, or any subsequent representative of the testator, obtain a right to disturb titles which have been legally established under the authority of the wall .

Tenants defaulted. 
      
       13 Mass. Rep. 201.
     
      
       [The English decisions are otherwise. Williams’s Exrs. 1110 —Norton vs. Frecker, 1 Atk. 526. —Castleton vs. Fanshaw, Prec. Chan. 100. —Ex parte Dewdney, 15 Ves 498.—Ed]
     
      
       15 Mass. Rep. 58.
     
      
       [It seems quite unreasonable to hold that, by merely giving bond, the residuary devisee can gain a perfect title to the estate. He holds it always subject to tlie charges upon it created by the law or the testator, and cannot have a perfect title to it until all those charges, whether they be debts or legacies, are extinguished.—Ed.]
     
      
       [It is difficult to reconcile the decision in the above case with certain elementary rules of law. The sale was made by virtue of a decree of a court having jurisdiction over the subject. Whether there were any debts or legacies, for the payment whereof the lands were liable, was a question which that court was competent to de cide, and from that decision there was no appeal.' The matter had passed in remjudi catara. And it seems to have been quite contrary to the principles both of law and equity, to disturb the title of a bonafi.de purchaser under such a decree and sale, who lad reason to rely upon its validity. Such decisions are attended with the most mis snievous consequences.—Ed.]
     