
    Benjamin Leverett versus Jonathan Harris.
    By the provincial laws in force prior to the statute of 1783, c. 32, which authorized the courts of law to license executors and administrators to sell the real estates of persons deceased for the payment of debts, &c., no certificate from the Probate Court of the necessity of such sale was required; but the same might be made to appear in any other waj'. — Therefore, when an insufficient certificate had been made in such a case 27 years before, and, in consequence thereof, a sale had been licensed by the Court of Common Pleas, the administrator in the subsequent proceedings having conformed to the requirements of the law, the heir at law of the deceased, in an action against the purchaser, for the recovery of the land sold under such license, was not permitted to give evidence that the personal estate of the deceased was sufficient for the payment of all his just debts.
    This was a writ of entry sur disseisin, brought to obtain possession ot an undivided ninth part of a certain messuage and appurtenances, situated on the westerly side of Cornhill Street, in Boston, in which the demandant counts upon his own seisin within thirty years, and upon a disseisin by the tenant.
    The action was tried upon the general issue of nul disseisin, at the last November term, before Parker, J.; and a verdict being found for the tenant, the demandant moved for a new - trial, upon the report of the judge.
    From that report it appears, that it was admitted at the trial that Thomas Leverett, father of the demandant, died seised [ * 293 ] of the demanded premises in the year 1778, leaving * his widow, the demandant’s mother, and his children in possession; and the proportion claimed by the demandant is admitted to be right.
    The tenant relied on a conveyance of the premises made to him by Martha Leverett, widow and administratrix of the said Thomas Leverett, and produced in evidence attested copies of an order of the Court of Common Pleas, for this county, made at April term, 1783, authorizing the said administratrix to make sale of the whole of the intestate’s real estate, and to make and execute a deed oi deeds thereof; and of her application to said court for said order, in which she set forth, that she had exhibited to the judge of probate inventories, a list of debts and accounts of her administration, so far as she had proceeded; that there was due from her intestate’s estate the sum of 2216£, 3s. Ifá., which she had no personal estate in her hands to discharge, and that the real estate had been appraised at 533£, 6s. 8d.; and referring to the certificate of the judge of probate, in support of her allegations, she prays leave to sell, &c. The certificate of the judge referred to contains the same allegations as the application. The tenant also produced the deed of the said administratrix, bearing date the 28th of July, 1783, by which, in consideration of £750, she conveyed the demanded premises to him; and in which she recites that the estate of her intestate was insolvent, that she had obtained license to sell all the real estate, and that the present tenant was the highest bidder; and covenants that the intestate died seised of the premises conveyed, that they were free of incumbrances, that she had good right and lawful authority to sell the same, and that she will, in her said capacity, warrant and defend the same against the claims of all persons. And it was admitted, that the tenant immediately entered on the premises under that deed, and has held the same to the present time. It was also admitted that the demandant was under age at the time of the sale, and soon after removed to Portsmouth, in New Hampshire, where he continued to reside until about two years before the trial.
    * The demandant, to prove that the estate of the [ * 294 ] intestate was not insolvent, and that the personal estate was more than sufficient to pay all his just debts, offered in evidence attested copies of the inventory, and the account of administration, and also the testimony of sundry witnesses.
    But the judge, who sat in the trial, being of opinion that the certificate of the judge of probate, the license of the court founded thereon, the deed of the administratrix, and the possession under it for twenty-seven years, was conclusive evidence of the tenant’s title against the heirs of Thomas Leverett, all the evidence so offered by the demandant was rejected by the judge; who adds, that if the Court should be of opinion that the said evidence ought to have been received, and to avail the demandant in this action, the verdict was to be set aside, and a new trial granted; otherwise judgment was to be entered on the verdict.
    And now, at this term, a motion for a new trial was urged by Dexter and Jackson, of counsel for the demandant.
    It was observed that the certificate of the judge and the application of the administratrix were artfully written. They did not state the value of the personal and of the real estate, nor did they allege that the former was insufficient to discharge the debts ; because the fact was otherwise. They merely allege that the administratrix had not in her hands a sufficiency of personal estate for the discharge of the debts; and had the demandant been permitted to produce his evidence at the trial, the true reason why she had not, would have appeared, viz. that she had wasted it. Upon this application and certificate, informal and insufficient as they were, the Common Pleas proceeded to license her to sell the whole real estate
    
      By the provincial statute of 8 Will. 3, c. 4, the Superior Court and, by another act passed in 1770, the Court of Common Pleas, were impowered to license executors and administrators to make sale of the real estates of persons deceased, so far f * 295 ] as should be necessary to satisfy the * debts owed and legacies bequeathed by such deceased persons; but this authority is only given “ where the goods and chattels belonging to the estate of any persons deceased shall not be sufficient to answer the just debts which the deceased owed, or legacies given; upon representation thereof, and making the same appear to such court.” In this case there was no such representation to the Common Pleas, nor could it have been made to appear, for the fact did not exist. The Court of Common Pleas had then no jurisdiction in the case, and their act was merely void.
    The demandant having shown a right to recover, the burden rests upon the tenant to disprove such right. For this he relies on an order of a court not authorized to make it. Relying upon that authority, it was his duty to look into it. If he had examined the files of that court, he would have seen that the authority was void; that the application, which alone gave it cognizance of the case, and which it recites as the foundation of its proceedings, was wholly insufficient for the purpose. If it be said that this is requiring too much of a purchaser, it may be answered, that the records were open to him, and he was bound to see that the vendor had authority. The mischief of thus depriving infant heirs of their inheritance, by a fraudulent sale, is vastly greater than the inconvenience of requiring purchasers to search the records. In the present case, the demandant was carried, when an infant, out of the state; and no argument ought, therefore, to be drawn from the length of time that the tenant has remained in his undisturbed possession of the premises.
   Bigelow, for the tenant, was stopped by the Court; whose opin ion (absente Parsons, C. J.) was afterwards delivered by

Sedgwick, J.

In this case the demandant is entitled to recover, unless the title set up by the tenant shall be adjudged sufficient to bar his right of inheritance.

By a statute of the provincial legislature, (8 W. 3, c. 4,) it was enacted that in case of a deficiency of personal assets [ * 296 ] * to pay the debts or legacies of any deceased person, ' “ upon representation thereof, and making the same to appear unto the Superior Court of Judicature, holden for or within the same county, where such deceased last dwelt, the Court are hereby empowered to license and authorize the executor or administrator of such estate to make sale of all or any part of the houses and lands of the deceased, so far as shall be necessary to satisfy the just debts, which the deceased owed at the time of his death, and legacies bequeathed in and by the last will and testament of the deceased.”

The same power was afterwards extended to the Court of Common Pleas.

By this statute, the certificate of the judge of probate, of the insufficiency of personal assets, and the necessity of sale, was not required. The court might ascertain the truth of those facts, upon any “ representation thereof,” or by any mode of “ making the same to appear.” As, therefore, the court was not restricted to any species of evidence, and as no certificate of the judge of probate was at all necessary, it seems very clear that no deficiency or irregularity in such certificate can invalidate the proceedings of the court, which might have been, and we are to presume were, founded on sufficient evidence.

The same answer may be given to the remarks, which have been made with regard to the insufficiency of the petition of the administratrix.

It will be admitted that the order of the Court of Common Pleas purported to bestow upon the administratrix sufficient authority to convey the demanded premises ; and that she complied with all the requirements of the law, in the proceedings subsequent to the order of court, and in her conveyance. The grantee purchased in reliance on the authority of a court of competent jurisdiction. To deprive him of the property he thus acquired, would, in our opinion, be to act in opposition to the most established principles, and very much endanger the security of titles,

*In England, all payments to, and purchases from, an [ * 297 | administrator are considered valid, although a will is subsequently discovered and proved.

Some reliance seemed to be placed at the bar upon the circumstance that the demandant was a minor at the time of the sale, and soon after removed from the commonwealth, to which he has lately returned. To this it is sufficient to reply, that in no statute, em powering a court to authorize a sale of lands by executors or administrators, is there a saving of the rights of persons under the circumstances of the demandant.

Let judgment be entered on the verdict. 
      
      
        а) [See note to Thomson vs. Brown, 16 Mass. 181. —Ed.]
     
      
      б) [There is now an exception in the statutes in favor of minors — Ed.]
     