
    Grand-Isle County,
    January Term, 1828.
    
      Reuben Clapp, administrator de bonis non of Alexander Gordon, vs. Ephraim Beardsley.
    
    That .the County Court do right to compel the defendant to proceed to trial upon a declaration .amended by order of the Supreme Court, while the cause was pending thére.
    That a deed of twenty-eight acres off from lot No. — adjoining, doés not create a tenancy in common of the whole 1-ot.
    That plaintiff & not regularly adminstrator must be pleaded in abatement, and cannot be urged under the general issue.
    
    'That an administration de bonis non, granted by the Probate Court of a district ¿other than the one in which administration was first gvanted, but to which the town where the deceased resided has been attached by a later statute, is not void, but onty voidable on appeal.
    That a purchase by an administrator of ad assignment of a mortgage, given by his intestate, enures for the benefit of the estate. Such assignment cannot avail the defendant who purchased under it with a full knowledge of all the facts.
    That the above is the case unless it appear that the administrator purchased with 'his own funds when he had no assets which made it his duty to purchase for the benefit of the estater
    That the defendant claiming to hold in his own right, is not entitled to notice to quit, though he is in under a defective title derived from the deceased, or his first administrator.
    This was an action of ejectment for land in Grand-Isle, in said county; the only description of which, in the original declaration, Was “ thirty-six acres of the south east corner of the first division “lot drawn to the right of John Wood.11 At a former term of this court, in which a new trial was-granted in said cause, the plaintiff made the following motion to amend his declaration, to wit;
    “ Supreme Court, Grand-Isle County, January Term,1827.
    “ And now the plaintiff moves for liberty to amend his said de- “ claration by erasing the last line on the first page and tire first “ and second' lines on the second page, and substituting therefor “ the following : ‘being a part of lot two hundred seventy-seven “ eof the first division, laid and drawn to die original right of John “ lWood, and bounded and described as follows, to wit ^beginning “ ‘on the lake shore at the south east corner of said lot, thence “ ‘westerly on the line of said lot ninety-six rods, thence north- “ ‘wardly at right angles with said first line sixty rods, thence east- “ ‘wardly parallel with said first line to the lake shore, then south- “ ‘wardly on the shore of tire lake to the place of beginning,contain- “ ‘ing thirty six acres of land, lying in the south east corner of said “ ‘lot of which tract.’ By Wetmore 8c Adams.”
    This motion was granted without terms, as no objection had ever been made to the declaration by the defendant; but the difficulty was suggested by the court, after several trials upon the actual merits. The amendment was made accordingly. There was another trial in the County Court, and the following exceptions allowed, to wit:
    “ Grand-Isle County Court, September Term, 1827.
    “ Ejectment for lands in Grand-Isle, being a part of lot No. “ 277, drawn to the original right of John Wood, as by the de- “ claration appears.' Plea not guilty, and issue joined thereon.
    “ On the trial of the issue the defendant objected to the plain- “ tiff’s proceeding on the amended declaration filed in the case, “ on the ground that it did not conform to the order of the court “ allowing it; contending that it appeared from the original decla- “ ration, the order of the court, and the plan of the town of Grand- “ Isle, whieh are made a part of this case, that the amended de- “ claration contained and described land not included in die ori-
    ginal declaration. He further insisted and offered to show, that “ he had been in adverse possession of the land described in the “ amended declaration fifteen years- before the same was filed. «The coilrt overruled the objection, and ■“ ordered the trial to proceed on tire a- “ mended declaration. The plaintiff offered in evidence letters, “ of administration to him on the estate of Alexander Gordon, “ granted May 24, 1813, with a certificate of the Judge of Pro“bate thereon, that the administrator had given bonds, and “ was duly sworn. The defendant objected to the evidence :i thus offered on the ground that the Judge of Probate had no ■ “power to grant letters of administration to the plaintiff, and insisted that it did not appear that the plaintiff had given bonds “ and taken the necessary oaths, and offered to prove that tire , “ certificate was made in court by the Judge of Probate when his “ record was absent. This proof was excluded, and the letters “of administration and certificate were admitted.
    “ The plaintiff then shewed a title in fee to lots No. 276, 277, “ and 278, in Grand-Isle, including the land in question, in Al- . “ exander Gordon, in his lifetime, and that he died in 1802, seized and possessed of the same, and that the defendant at the “ commencement of this suit, was and still is in possession, of the “ land in question.
    “ The defendant on his part, produced and read in evidence a “ deed from Alexander Gordon, to John Knight, and Elijah “ Hyde, dated Nov. 14, 1800, of the first division lots' of Thomr “ as Tolman, and Elijah Herrick, and twenty-eight acres of the first division lot laid to the original right of John Wood, adjoining; also a deed from John Knight, and Elijah Hyde, to the “ defendant, dated July 8,1807, of all their right, title, and inter- “ est in and to one equal undivided half of the first division lots, “ of Thomas Tolman, Elijah Herrick and John Wood. The “ defendant insisted that he was a tenant in common with the “ plaintiff of the whole of lot No. 277, and that the plaintiff could" “ not recover without shewing an actual ouster, or something tan-' “ tamount thereto.
    “ The plaintiff thereupon produced and read a deed of mort-' “ gage from Alexander Gordon to Benjamin Boardman, dated! “ June 6,1800, of thirty-six acres of lot No. 277, described1 ás “ beginning at the south east corner of tire lot, giving the bounda- “ ries and describing the lands in question, and proved that the v “ thirty-six acres were inclosed and sep- “ arated from the other part of the lot. “ by a fence, as early as 1798 or 1799. The court decided “ that the parties were not tenants in common, and overruled the “ defendant’s objection.
    “ The defendant then introduced and read a deed from Ben“jamin Boardman to Philo Berry, dated Sept. 25, 1805, and “recorded July 9, 1807, assigning to Berry the mortgage given “ by Alexander Gordon to Boardman, and also a deed from Phi- “ lo Berry to the defendant, dated July 8, 1807.
    
      “ The plaintiff thereupon produced and read letters of adminis- “ tration to Philo Berry and Polly Gordon, on the estate of Al- “ exander Gordon, granted Oct. 7, 1802, and it was admitted by “ the parties that the said Philo and Polly were duly appointed ‘‘ and qualified, and took upon themselves the trust of administra- “ tors .as aforesaid. The plaintiff also produced and read the re- “ cords of the Court of Probate for the district of Grand-Isle, “ which the parties consented should be received as legal evi- “ dence, from which it appeared that the inventory of the real and “ personal estate of the said Alexander Gordon, amounted to “ $6146,25, that the amount of debts allowed by the commission- “ ers against the estate, including the debt to Boardman of $688, “ 69, secured by the mortgage aforesaid, was $3005,79, and “ that there had been assigned to the widow, out of said estate “ in personal property, the sum of $109,36. It was admitted by “ the defendant that he went with the said Berry to the town “ clerk’s office and procured to be recorded all the deeds before “ and herein after mentioned, which were recorded July 9,1807, “ and also the order of the Judge of Probate herein after men- “ tioned, directing the sale of the real estate of the said Alexan- “ der Gordon, and that he knew that said Berry was administra- “ tor on said estate. Whereupon the court decided that the defend- “ ant acquired no title as against the plaintiff, under tire mort- “ gage from Alexander Gordon to Benjamin Boardman.
    
    “ The defendant then produced and read a deed from Philo “ Berry to John Knight and Elijah Hyde, dated December 10, “ 1807, a deed from John Knight and Elijah Hyde to Ebenezsi' “ Hatch, dated March 3,1808, and a deed from Ebenezer Hatch,
    
      *• to the defendant dated Nov. 20,1812.( “ The defendant also read in evidence “ a deed from Philo Berry and Polly Gordon, administrators oí tl Alexander Gordon, to Asa Robinson, dated September 6,1805, “ and recorded July 9, 1807, and a deed from Asa Robinson to* “Philo Berry, dated June 1, 1807. The defendant further of- “ fered in evidence an order of the Judge of Probate for the dis- “ trict of Chittenden, purporting to be an order of sale of the real “ estate oí Alexander Gordon, dated-, which was objected “ to, but was permitted tobe read; and also introduced a witness “who testified that a large share, but could not state how much, “ of the personal property inventoried as the estate of Alexander “ Gordon, consisted of notes and demands of little orno value, “ and that the defendant entered into possession of the premises, “ sued for, in 1807, and had continued in possession ever since.
    “The defendant insisted that from the deeds introduced as a- “ foresaid, it appeared drat the principal part of the real estate, in- “ ventoried as the property of Alexander Gordon, did not, in fact, “ belong to him ; that from the deeds thus introduced, and the “ testimony in relation to the personal property, it appeared that “ the estate was, in fact, insolvent; and, therefore, it sufficiently ap- “ peared that it was necessary to sell the real estate for the pay- “ ment of the debts. He further insisted that he was a bona fide “ purchaser for a valuable consideration, and that the sale made “ by Philo Berry and Polly Gordon, under the order of the Judge “ of Probate, had been acquiesced in for nearly fifteen years, and “ that, therefore, it should be left to the jury to presume that the or- “ der of the sale was legally made, and that all the requisites to “ render the sale valid had been complied with; and he request- “ ed the court so to charge the jury.
    “ Defendant also insisted, that from tire evidence introduced it “ appeared that Philo Berry, at the time he took the assignment “ of the mortgage deed from Benjamin Boardman, had no assets “ in his hands belonging to the estate of Alexander Gordon; and “ if so, that Berry had a right to purchase the premises, and take “ an assignment in his own right, and did thereby acquire a legal title in himself; and he requested the court so to charge the jury. “ He also contended that he had shewn a good title in himself. 
      “ by deeds, and by the statute of limita-»' “tions, at least, to a part of the premises “ described in the amended declaration; and requested the court “ so to charge the jury.
    “ But the court refused to charge the jury as thus requested “ by the defendant; and the jury, under the direction of the court* “ returned a verdict for tire plaintiff. To which several opinions “ of the court, and refusal to charge the jury as requested, as “ aforesaid, the defendant excepts; and the several records, deeds*. “ papers, and plan of the town of Grand-Isle, herein referred to* “ are made a part of this case.
    “ Allowed add signed in court, and ordered that execution be “stayed. “ Samuel Prentiss, Chief Judge.
    
    
      “ Melvin Barnes, Jr. Assistant Judge.”
    
    Argument for the defendant. 1. The order of court could not have been intended to give tire plaintiff leave to amend his" declaration so as to describe a different piece of laird from that mentioned in tire original. But the plaintiff, not regarding the or- • der of the court, has amended his declaration by describing thirty six acres of land lying on the south side of tire lot, instead of des-scribing thirty six acres lying in the south east corner. This lot is inform a parellelogram, and allowing to the term south east corner its most extensive signification, the first declaration could only embrace' land included in a triangle — thereby including a piece of land which was not included in the orignal declaration, and to which the defendant had a complete title by the statute of limitations, before the filing of the amended declaration. Therefore,, the decision of tire County Court, compelling tire defendant to go to trial on the aftrendeddeclaration, and excluding the operation of the statute of limitations, as to the piece of land not included in the original declaration, was incorrect.
    2. The deed Gordon to Knight and Hyde, dated Nov. 14, 180Q, conveyed to them the original rights of Thomas Tolman and Elijah Herrick, and twenty eight acres off from tire first divison lot laid to the original right of John Wood, adjoining. This deed, not having located the twenty eight acres in any particular part ■ of the lot, laid to the right of John Wood, makes Gordon, and Knight and Hyde tenants in common through the whole lot.—
    
      The term adjoining refers to the lot laid to the right of John Wood, and was intended to show that said lot was adjoining the lots laid to the rights of Herrick and Tolman. But jf the term adjoining refers to the twenty eight acres, and was intended to show that the twenty eight acres lay adjoining the lots laid to the rights of Tolman and Herrick, still the plaintiff would fail in making out a location of the land: for by examining the plan of the town it will be perceived that these three lots are so located that this twenty eight acres might be laid adjoining the ±ots laid to the rights of Tolman and Herrick, yet in so many various ways, & con veying so many different pieces of land, that the deed, considering it as conveying a piece of land in severalty, would be void for uncertainty. It follows conclusively, that the deed is void, or it convey san undivided moity of the lot in question; andjhe rule of law is, that when an instrument is so written that two constructions can be put upon it, one of which would make it void, and the oilier valid, that construction is to prevail which would support it. — 1 Sw. Dig. 229. The fact that this lot was divided by a fence two years prior to the date of Board-man’s deed cannot in any way explain or controul the effect of this deed. If the plaintiff relied on a division in fact, and to con-troul the operation of this deed, introduced parole evidence to shew that the lot had been divided by a fence in 1798 or 1799, this question should have been submitted to the jury. The Court could not, on parole evidence, undertake to determine whether there was or was not a division in fact. Therefore, this verdict, being for apiece of land in severalty, cannot be supported.
    3. Alexander Gordon was an inhabitant of the town of Grand Isle at the time of his decease in September 1802, at which time the towns of South Hero and Grand Isle were a part of the Probate district of Chittenden. The act authorising Courts of Probate to grant letters of Administration on intestate estates, directs that “after the decease of any person intestate, the Judge of Pro- “ bate for the district wherein such person was last an inhabitant “ shall grant Administration, fac.” This act gives to the Probate Court for the district of Chittenden the right of granting letters of administration on the estate of Gordon. — Ed. of Laws of 1808, p. 129, s. 25. The act authorising the Court of Probate to grant letters of administration de bonis non in certain cases therein enumerated, expressly confines the granting of such letters to the Court of Probate who granted the first. — Ed. of Laws of 1808, p. 134, s. 37. Gordon was never an inhabitant of the district of Grand Isle, but was an inhabitant of the district of Chittenden at the time of his decease. The enquiry then is what authority had the court of Probate for the district of Grand Isle to grant letters of Administration de bonis non on the estate of Gordon ? If it had any authorhy, it must be by virtue of the act annexing the towns of Grand Isle and South Hero to the Probate District of Grand Isle. This act does not take away any jurisdiction or con-troul which the Court of Probate for the District of Chittenden had acquired over testate or intestate estates in either of those towns before the passing of the act. It is a well settled principle that the mere alteration of the jurisdictional lines of a county, or Probate District, does not take away the jurisdiction of the County or Probate Courts over any causes or matters that are pending before them at the time of such alteration. In this case the Probate Court for the District of Chittenden had granted letters of administration on the estate of Gordon before tire passing of this act, and this subject was then properly pending in that court. It remains for the plaintiff’s counsel to show what event has taken the jurisdiction over this estate from the Probate Court for the district of Chittenden and given it to that oí Grand Isle. If the Court of Probate for the district of Grand Isle had not jurisdiction of the subject matter, these letters of Administration to the plaintiff are void.
    4. The defendant has a tide to the premises in question by virtue of the deeds P. Berry and P. Gordon, administrators on the estate of JL. Gordon, to Asa Robinson, and from Robinson to himself through mesne conveyances. The order of the Court of Probate directing the sale of Gordon's real estate was good on the face of it. • The Court of Probate had jurisdiction of the subject matter, therefore this order was sufficient to justify Robinson in purchasing the estate, and cannot be set aside so as to defeat the rights of a bona fide purchaser. — 1 Con. Rep. 467, Brown vs. Lanman. — 7 Mass 293, Levereit vs. Harris. — Ed. of Laws of 
      1808, p. 140, S. 54-5.-13 Johns. 97, Jackson vs. Rosevelt. It appears that the estate of Gordon was in fact insolvent, and that it was necessary to sell the real estate of Gordon for die payment of debts. The order of the Court of Probate directing the sale of Gordon's estate was issued Aug. 6, 1805. The deed from P. Berry and P. Gordon, on the sale of said estate in pursuance of said order, was executed on the 6th day of Sept. 1805, — sixteen years before the commencement of this suit. This evidence, taken in connection with the order of the Court of Probate, directing the sale of Gordon's real estate, the lapse of time since said order was made, and the lands sold, the inaccurate and careless manner in which Courts of Probate kept their records at so early a period, the length of time during which the land has been in possession of a bona fide purchaser for a valuable consideration, ought to have been submitted to a jury to presume that the order and sale and all the legal requisites to make a valid conveyance, were complied with. — 3 T. R. 159, Read vs. Brookman. — 1 Bos. &rPul. 400, Holcroft vs. Heel. — 3 Mass. R. 399, Gray vs. Gardner. — 2 Con. R. 27, JBunce vs. Wolcott. — Id. 607, Sumner vs. Child. — 10 Mass. Coleman vs. Anderson.
    
    The defendant has a valid title at law to the premises in question by virtue of the mortgage deed, Gordon to Boardman, Board-man to Berry and Berry to defendant.' — 12 Mass. 30, Hills vs. Elliot. It is insisted by the plaintiff that Berry acquired no right in himself by the assignment of the mortgage from Boardman to him, and that this purchase was in contemplation of law, a payment of the mortgage money, and enured for the benefit of Gordon’s estate. The position thus assumed by the plaintiff cannot he supported. — 10 Johns. 480, Jackson vs. Minkler. The evidence offered by the defendant shows conclusively that Berry had no assets in his hands at the time he purchased and took to himself an assignment of the mortgage from Boardman ; at all events, he offered legal evidence tending to prove that fact; and tire question whether Berry had or had not assets should have been submitted to the jury. If Berry had assets, his purchase enured for his own benefit, and the defendant has all the rights of die assignee of the mortgagee in possession. — Tol. on Ex. 
      
      164. — Office of EoC. 109. If Berry had assets, and the estate was in~ .solvent, it was not bis duty, as administrator, to pay off this incumbrance. If he had done so, he might have been liable for a devastavit; and the court will not presume that he did any act, as administrator, inconsistent with his duty. — 2 Con. Rep. 350, Findlay vs. Hosmer. If it was not the duty of Berry to purchase in this incumbrance for the benefit of the estate, he had a right to purchase for his own benefit, and had all the right of am assignee. If it was the duty of Berry and Polly Gordon to pay off this incumbrance, as administrators on the estate of Gordon, yet if Berry, instead of paying off the incumbrance, took an assignment to himself, he has the legal estate ; and although he might properly be considered as a trustee by a court of equity, at law, the legal title must prevail. — 14 Johns. 407, Jaclcsonv s. Walsh.
    
    6. At all events, if neither of the titles set up by the defendant are sufficient to vest in him an estate in fee, yet the deeds from Berry to defendant gave him the lawful possession of die premises, and he is to be considered in no worse light than as a tenant at will or by sufferance, and is entitled to notice to quit, or at least, a demand to give up the possession. — 1 Sw. '‘Big. 91. — 11 East, 55, Foley vs. Wilson. — 13 Id. 210, Right vs. Beard. — 4 T. R. 680, Goodlittlevs. Hurbert.
    
    Argument for the plaintiff. The Judge of Probate had power to grant the letters of administration to the plaintiff in this case. — ■ It was within his district at the time of the appointment when ‘Gordon died. The giving the bonds is a presumption of law arising from the existence of the letters of administration. The law did not require tire administrator to be sworn. The defendant as owner of the twenty eight acres was not tenant in common with Knight and Hyde; and besides, a practical division had been made. The assignment qíBoard,man to Berry has been already considered by this court, and they have decided the legal effect of it — that it enures to the benefit of the estate. This court have also determined that nothing passed by the deed of Berry and Polly Gordon, under the order of the Court of Prohate for the district of Chitten-den. The case discloses no testimony of a valuable consideration for the sale from Boardman to Berry; but it does appear that defendant pur-) chased with full knowledge of all pre-existing facts. — 1 Chit, 485. — 2 Phil. Er. 290-1. It does appear that there were assets ,to a large amount in the hands of Berry, and the court will also take notice of the rents and profits accruing while tire estate was in Berry’s hands.
    • The court had' an intermission, and were ready to deliver their opinion, without further argument on the part of the plaintiff.
   HutchinsoN, J.

delivered the opinion of the court. Several exceptions were taken at tire trial of this cause, which are now to be disposed of.

The first is to the County Court’s compelling the defendant to proceed to trial on the amended declaration. We .deem this to be right in the County Court, whether the allowance of the amendment were right or wrong. The action was regularly pending before the Supreme Court when they allowed the amendment, and •they had power to allow all proper amendments in furtherance of justice; and it was their duty thus to allow them. After the amendment was made the cause was sent to the County Court for a jury-trial. It would hardly have been decorous, to say the least of it, for the County Court to refuse to try such issues as were sent to them from the Supreme Court for trial, especially for them to judge over again a question decided by the Supreme Court on the propriety of any particular amendment. Furthermore, we discover no good reason why the amendment was not correctly allowed. It is true, tlie piece described in the new declaration is not m any exclusive sense, nor in the most appropriate sense, in the south east comer of the lot. Yet it was there, as it was in the .south west corner. The south east,,corner was the place of beginning. And the deeds, describing the land as in the amended declaration, had been read without objection on the trials before the amendment. And the whole dispute had been about the title to this particular piece of land. The difficulty was not that the first declaration contained no land, for it necessarily contained thirty-six acres. The difficulty was, it was defective in not giving the particular boundaries to which the plaintiff intended to make title.

The defendant’s counsel endeavour to attach importance to to this amendment from its possible ef* feet with regard to the statute of limita-1 íioirs, and the defendant’s claim to hold as tenant in common* Probably, if ari amendment brought upon the record a claim forland, that by nd construction could be ■ considered within tire original declaration, the statute would run till the amendment made ; but otherwise, where the land, as in this case, may he within the original declaration. In such case, supplying the defect by a particular description will operate as if so made in the beginning'.

We discover no tenancy in common, in the case. The deed from Gordon to Knight and Hyde, under which the defendant claims, conveys “ o'ne certain tract or parcel of land, &£c. the first “ division lots of the rights of Thomas Tolman and Elijah Her- ride, and twenty-eight acres off from the lot laid to the right of i£ John Wood, adjoining.” It appears by the map that said Tol-man-lot lay ndrth of the Wood-lot, and said Herrick-lot lay tvest of the'Wood-lot and Tolman-lot. Now this deed conveyed no right throughout tire Wood-lot, but only twenty-eight acres to come off somé where. It might come off from the' north side, or the west side, and be adjoining : or the word adjoining might refer to the whole lot of Woodh right,- being adjoining the other lots. In which case it might be taken from any part then owned by the grantor. But the most natural construction is, that the twenty-eight acres must adjoin one of those other lots; mo're especially, as otherwise, the whole would not be in one piece or parcel as described in the deed. But, if the deed of the twenty-eight acres did contain tire land now in dispute, it would convey no title unless a mere equity of redemption, beoause Gordon, in the preceding June, had mortgaged to Boardman the same land described in this amended declaration. We must endeavor in some way, to ascertain the meaning of the parties in their - contract. What they intended to convey might be within the description they have given. As this description is, we may resort to evidence aliunde. Now it appears from the case that this piece now in dispute had been fenced off from the lot in 1798-9, and conveyed to Boardman in June 1800. Hence it would be wrong to presume an intention in November, 1800, to convey twenty-eight acres of this 36 acres, when Gordon at the same time owned, of the same' lot, sufficient •that lay upon the north side-and the west side to make the twenty-eight acres, and much more.

Upon the whole we consider the deed of the twenty-eight acres as riot comprising any of the land now in dispute.

2. We come to the question of the plaintiff’s administration and •his right to sue. We have had no special difficulty except upon this point, and not so great upon this as to trouble the plaintiff’s counsel upon it-. It is a question with the court, whether this can arise • upon the merits of tire case, or whether it must not be pleaded in ábatemérit ? From the reason of the thing it ought to be pleaded in abatement: for it is an objection to the plaintiff’s representing the deceasedj’while the general issue tó the declaration most technically calls in question the right of the deceased to oust the defendant from the premises. The- géneral rulé is ’that .an, objection, to the person of the plaintiff, or whether hie or some one else shall bring the action, must be pleaded in abatement. And whether the plaintiff is regularly adriiinistratof or executor of the deceased is of that character; and it would be an expensive hardship if the whole costs of preparing the cause for trial on both sides can be thrown upon the plaintiff by a trial of the question whether hé has a right to personate the deceased in prosecuting the claim he sets up. Some authorities seem to suppo'se that this objection may be raised under thé general issue. But 2 Phil. Ev. 289-90, is full in point that, under the general issue, an executor or administrator need not prove himself invested with the character in which he claims. He cites 15 Johns. 208, Carpenter et al. vs. Whitman et al.—1 Brown, 115. Nor would defendant in such case, be admitted to controvert the plaintiff’s right to pursue his claim.

This disposes of the question in a why not urged by counsel.. In reference to the view presented by counsel, there is some difficulty ; and this arises from the circumstance that the town where Gordon resided at the time of his decease was then within the district of Chittenden, and the act then in force, p. 134 Ed. of Laws of 1808, authorising the appointment of an administrator de bonis non, gives the power only to the Judge of Probate who granted administration. This Was é-general law, and seemed to anticipate not difficulties from alterations in the boundaries of the Probate districts ; and the legislature have not, in the Case before us, guarded against such difficulties by any special enactment. In the act-dividing the district of ¿Addison, Rev. Laws, 546, provision is made that all business then begun should be finished in what would remain the Probate district of Addison; This seems natural, at first view, at least, from the circumstance that the record® of the proceedings, as far as they have gene, are there. However, if made certain either way it is well enough.- Copies might be transferred, as was done in this case, to the court receiving the-jurisdiction. Moreover, the same section .ofthe statute, authori-sing the appointment of an administrator de bonis non, directs that such administrator, shall proceed, in all things, in the settlement of such estate, as is before directed in said act. That is, he must-give bonds, .exhibit an inventory, settle his accounts ote. And this is a reasonable provision : for it would be unjust to subject anew administrator to account for the property in the inventory furnished by his predecessor. So far as he should find, and get possession of, the property corresponding with the first inventory, he might be willing so to account; but he should be compelled to account for no more than he can controul: and of this a separate inventory ought to be exhibited. This would bring into one office all the records connected with the settlement of the accounts of the administrator dé bonis non; and leave the accounts of the first administrator to be settled in the office where he received his appointment. There would be no difficulty at all in this regulation,if made and understood. But we are now called upon to reconcile the several statutes where no such special provision seems to have been thought of.. The facts are that Gordon died in Middle Hero (now Grand Isle) which was then in the district of Chitten-den, but, before the plaintiff received his appointment, became a part of the district of Grand Isle. Now, though the statute provides, that the original administration shall be granted in the Probate -Court of the district where Gordon was last an inhabitant j yet, if no administration had been granted till his town was annexed to the district of Grand Isle, tire administration ought to have Ibéen granted in that district. The stat-bte shduld be construed to regulate the jurisdiction of the Probate court at the time when thát jurisdiction must be exercised: and in such case, it would be true that Gordon was last an inhabitant of that district; that is, was last an inhabitant of that town; which; at the time of appointing ah administrator, was a part of the Probate district of Grand Isle-. The principal difficulty now -to be met, is, that the first appointment of administrator; being in the Probate Court for the district of Chit-tenden, where alone it could then be made; the jurisdiction for appointing an administrator de bonis non upon the same estate seems permanently attached to that district, unless severed by some statutory provision; which seems not to exist. Therefore, if the question were now raised by an appeal from the decree of the Probate Court for the district of Grand Isle, making the appbintment, we should feel constrained to reverse the decree. But; to treat the decree as a nullity while it remains unreversed, requires a different cónsideration. The distinction between void and voidable should be as well observed in this case as any other : for great evils would result from a neglect to observe it. The plaintiff took administration in tile Probate Court then .exercising jurisdiction over the territory where the deceased last lived. The court adjudged that they had jurisdiction in this case, and made the appointment of plaintiff under which he has hitherto acted and still acts. No person interested in his administering well or ill is now complaining. For aught that now appears,the defendant, who raises this objection, has always been destitute of any interest which would entitle him to an appeal for the purpore of testing the validity of the decree of the Court of Probate in a regular way. It would, therefore, be a solecism to admit him to contest itin this irregular way, and without any pretence of fraud affecting his rights, when he does not stand as a person whose interest is to be affected by the appointment of the plaintiff. On both grounds above mentioned the objection is overruled.

But the defendant, as a third ground of defence, has set up a title in himself under an order of sale from Judge Miller, in the Probate District of Chittenden, to Philo Berry and Polly Gordon, administrators; and their deed to Robinson, and Robinson’s deed back to Berry, and his deed to the defendant. The deed to Robinson is dated September 6,1805, and acknowledged May 30, 1807. This is virtually a quit claim deed. The only covenant it contains is that the grantors will in future have no claim or demand to the premises. The deed from Robinson to Berry is dated June 1, 1807. These two deeds and the order of sale, and the deed of Berry to the defendant, were all recorded July 9,1807.

This order ofsale was decided to be a nullity after a hearing of this cause in this court two years ago. — 1 Mh. R. 168. But it is urged that the defendant comes in as a bona fide purchaser.— If it be so in other respects, still it cannot be denied that he was fully conversant of all the circumstances : for the case shows that he was present at the recording of the order of sale and of all the deeds July 9,1807. If it were not so, still he could not succeed by setting up á defective title. If the order of Sale was void no title derived from it could be good. The defendant’s ignorance of circumstances could benefit him only in a case of title apparently good* but affected by a fraud of which he was ignorant.

But the defendant urges that the new testimony iii the case,, showing the necessity of a sale of the real estate of 'Gordon for the payment o'f his debts, renders good the order of sale. We think this circumstance cannot avail. It is too loose to be relied upon in the settlement of estates, or in tracing title to real estate. No order of sale should have issued till Berry and P. Gordon had settled their probate accounts and rendered an account of the property under oath, and the record of this settlement should show the result, and that result should exhibit the necessity of a sale of the r'eal estate.

Nor is there,as urged by the defendant’s counsel,any ground tepre-sume those matters correct, which should, but do not, appear. A presumption within the period of the statute oflimitations can only be raised by the proof o'f such facts from which the jury ought to presume the fact relied upon. ' In such a' case length of time is not the principal fact, but onlyto be considered with other facts proved in drawing the inference désired. There were no such facts shown in this case proper tojbe left to the jury with a view to their drawing an inference favorable to the defendant’s claim.

4. The defendant sets up a title to the premises in question by virtue of the mortgage deed from Gordon, in his lifetime, to Boardman, the assignment of the same to Berry, and the deed from Berry to the defendant. This assignment was recorded the same 9th of ■July, 1807.

This point was also decided in the same cause two years ago. That decision must now govern the court, unless the deed to the defendant, bringing him into the chain of title, alters the case. We think this cannot legally affect the case. It appears in the case that the defendant was present at the recording of the assignment and the order of sale, and could not be ignorant that Berry was administrator of Gordon's estate. If the estate was worth purchasing or redeeming, it was the duty of the administrator to redeem for the ben.efit of the creditors and heirs. If he redeemed or purchased with the property of the deceased, the transaction Would accrue to the benefit of such heirs and creditors. And the legal presumption is not that he purchased with his own funds, when it \vas his duty to redeem for die estate. If it were so, this ought to be shown. The reference to Toller's Executor and the Office of Executor, alludes to cases where the executor actually purchased with his own funds, when he had no such assets as made it his duty to purchase for the estate. Such a case is not here presented. But the defendant says the legal estate is in him by virtue of these conveyances, and must prevail in this action1 at law, unless the plaintiff first have recourse to equity to compel a reconveyance. This argument, to have weight, must suppose the legal title in the defendant wholly untinctured with fraud ; but, if the court are correct in the remarks already made, Beiry’s taking the assignment to himself when he was administrator, and ought to have taken an acquittance to the estate, was a fraud which vitiates his title and renders it liable to be rejected in an action at law, so far as it is attempted to be set up against the estate of the deceased. And the defendant having purchased with a full knowledge of all that now appears to evince that fraud, can claim nothing that Berry could not have claimed, were he the defendant. The Plaintiff, therefore, as administrator, may resist this title at law, without recourse to equity.

Charles Adams, for the plaintiff

Smalley and Adams, for the defendant.

But lastly, the defendant urges that if all other resources fail for his de-fence, he was so in possession under the title derived from the first administrator, to whose rights only the present plaintiff suceeeds, that he was entitled to six months notice to quit before the commencement of the action. The conclusive answer to this is, that the whole case shows that the defendant’s possession was adverse to the plaintiff. Though the defendant has claimed derivatively from the same source as the plaintiff, or has claimed an interest carved out of the estate claimed by the plaintiff, yet he has all the time claimed to be owner, and acknowledged no right in any other. This part of the defence is contradictory to all the others and cannot prevail.

Judgment must be entered for the plaintiff upon the verdict in affirmance of the judgment of the County Court,  