
    Eliphalet Pond versus Reny Wetherbee.
    The deed of an administrator, made in pursuance of a license to sell the intestate's real estate for the payment of debts, is admissible as evidence of the grantee’s title, against the grantor, although not acknowledged and recorded.
    This was an action of debt, founded on St. 1817, c. 173, for cutting trees, the property of the plaintiff. To prove his title, the plaintiff introduced a deed, of the locus in quo, from the defendant as administratrix, made pursuant to a license from the judge of probate to sell the real estate of the intestate for the payment of debts ; which deed, not being acknowledged and recorded, was objected to by the defendant as incompetent evidence, but was admitted as evidence against the defendant, she being the grantor. A verdict was found for the plaintiff; but if the deed was improperly admitted, a new trial was to be granted ; otherwise judgment was to be entered according to the verdict.
    
      Oct. 25th, 1825.
    
      March 26th, 1827, in Suffolk.
    
    Churchill, for the defendant,
    took the distinction, that this deed was made era autre droit, (3 Mass. R. 573,) and in compliance with a duty imposed by statute ; and he contended that the course pointed out in the statute must be strictly pursued. He referred to St. 1783, c. 32, § 2, which relates to a sale of more of the real estate than shall be sufficient to pay the debts, when by a partial sale the residue will be in jured, and which enacts that a deed given in such case, when “ duly acknowledged and recorded, &c., shall make a com píete and legal title in fee to the purchaser.”
    
      Metcalf, contra,
    
    referred to Prov. St. 8 Will. 3, c. 3; Prov. St. 9 Will. 3, c. 7 ; St. 1783, c. 37 ; and the English statute of enrolments; observing that before the statute of 1783, c. 32, deeds of administrators stood on the same footing, in regard to registry, as other deeds, and that the legislature did not intend to make any distinction between them in that respect.
   Per Curiam.

In the first section of St. 1783, c. 32, it is enacted, that an executor or administrator licensed to sell real estate of the testator or intestate, for the payment of debts, may “ execute, in due form of law, deeds, &c., which instruments shall make as good a title to the purchaser ” as the testator or intestate, in his lifetime, could give. A different phraseology is used, we know not for what reason, in the second section. This deed however comes within the first, and was properly admitted in evidence.

Judgment according to verdict. 
      
       See Revised Stat. c. 71, § 10.
     