
    Winthrop Gray versus James Gardner.
    After twenty years’ acquiescence by the heirs of an intestate, in the possession of the real estate of their ancestor, holden under a sale by the administrator, the Coi ‘rt will presume that the administrator took the oath and posted the notifications according to law, previous to the sale; evidence being given of the license to sell, and of the actual sale at auction.
    
      This was a writ of entry sur disseisin in the post, in which the demandant counted on the seisin of his father within fifty years, and a disseisin by Sylvanus Hussey.
    
    Upon the general issue pleaded, the cause was tried before Sewall, J., at the sittings, after the last November term, in this county, and a verdict taken for the tenant, subject to the opinion of the Court upon a statement of the evidence to be reported by the judge.
    The tenant, having admitted on the trial that tfife demandant’s father died intestate, seised of the demanded premises, and that the share demanded descended to the demandant as son and heir of the said intestate, proceeded to give in evidence:
    1. Letters of administration of the effects of the said intestate granted to his widow, Rebecca Gray, who, it was agreed, afterwards intermarried with Andrew Carr.
    
    2. An order of the Supreme Judicial Court, February term, 1785., authorizing the said Andrew and Rebecca to sell the whole of the said intestate’s real estate for the payment of his just debts.
    3. A copy, from the office of the said Court, of a certificate by Oliver Wendell, Esq., then judge of probate for the county of Suffolk, of the insolvency of said deceased’s estate appearing by a return of commissioners, &c.
    4. A copy of an account of administration rendered by said Cart and wife, August, 1784, remaining in the probate office.
    *5. A certificate, by the present register of probate, [ * 400 ] that no record of a commission or return by the commissioners, upon the claims of the creditors of the said intestate, are now to be found in the registry of probate for the said county. Also a certificate, admitted as a deposition regularly sworn, by Perkins Nichols, formerly register of probate in the same county, showing the disordered state of the office, diminution of files, records, &c.
    6. The testimony of a witness that in 1784, and until April, 1786, he lived in a house formerly the intestate’s, and parcel of his estate at his decease, and situate in Lynn, aforesaid; that, in the spring of 1785, Carr and his wife were at the house, when the witness was present at a public vendue of the said intestate’s real estate (of which he had before heard as intended), and a number of people were there, and several bidders, amongst whom one Sylvanus Hussey was the highest bidder, and the purchaser of the estate.
    7. A deed of bargain and sale indented between the said Carr, and wife, as administratrix, and the said Hussey, reciting an authority and license, sale at auction, &c., and conveying, for £ 100, the said intestate’s real estate, subject to the widow’s dower, to Sylvanus Hussey, under whom, it was admitted, the tenant sufficiently derives his title.
    
      It also appeared that the intestate left at his decease, in 1782, or i7S3, five children, the eldest of whom, Sylvanus Gray, is now living, and forty-one years of age, and that the said Rebecca, the administratrix, is also now living.
    The deed from the administratrix of the said real estate was objected to, as inadmissible, and as insufficient evidence, without further proot of the oath required to be taken, and of the advertisements required to be made previous to the sale.
    Upon this evidence the judge directed the jury that the authority of Carr and his wife to sell the real estate of their intestate was sufficiently proved; but certain requisites in the legal exercise of that authority were also to be proved, to render their deed valid and a sufficient conveyance of the said estate to any purchaser; particularly the taking the oath, and the posting of notifications required by the law in such case's previous to the sale; that the [ * 401 ] administering of the oath was * regularly to be proved by a copy of the certificate thereof, required by law to be returned and filed in the probate office; that the evidence, which had been offered, of the state of the registry of probate where the certificate in this case ought to be found, and of the loss of papers and files respecting the concerns of this estate and administration in particular, connected with the lapse of time since the sale took place, and before the attempt by an heir of the intestate to question the legality of it, might be considered as an excuse for the defect of better proof, and as affording presumptive evidence that the proceedings of the administratrix had been regular in this respect; that the same lapse of time might excuse also the direct evidence of the advertisements required by law to be posted in certain places, previous to the sale, and connected with the other evidence in the case, and the recitals of the deed might afford a presumptive proof that the vendue, pursuant to which the deed had been made by the administratrix, had been regularly notified and conducted; and if the jury were satisfied on these points, then the deed of Carr and his wife was a valid conveyance of the estate in question, and the title of the tenant under it had been maintained; but otherwise the title, admitted to have been originally in the demandant, must prevail, and their verdict must be in his favor.
    The cause was continued for the opinion of the Court, until this term; and now, Livermore, of counsel for the demandant, argued that the administratrix, having obtained license for the sale of the real estate of her intestate, and being thereby vested with a mere naked authority, must be held strictly to conform to all the formalities prescribed by the law. It is true this transaction took place before the statute of 1788, c. 66, which prescribes a particular mode of perpetuating the evidence of these facts. But the facts were as capable of proof, and that proof was as necessary before that statute as since. If the advertising and taking the oath were necessary to make the sale legal, they are equally necessary to be proved in support of a title claimed under that sale.
    If the recital in the deed is sufficient ground for the jury to presume the facts to have taken place, then the estates of infants are altogether at the mercy of administrators. But *the Court will guard the interest of minors, who can- [ * 402 ] not take care of themselves, with great caution, and will not suffer them to be deprived of their inheritance, but with every formality with which the law has seen fit to fence it.
    
      Prescott and Putnam, of counsel for the tenant,
    were stopped by the Court.
   By the Court.

On the evidence produced in the trial of this action, the jury were directed that they might lawfully presume that the administrators had in fact published the advertisements, and taken the oath required by statute previous to the sale. The length of time after the sale, before the legality of it was questioned; the acquiescence of all the heirs, except the demandant; the evidence of the publicity, .and of the fairness of the sale; together with the license to sell, which was produced, are strong circumstances to show that all the proceedings were regular and duly authorized. And when it is further considered that, at the time of the sale, the statute of 1788, c. 66, prescribing the manner of perpetuating the evidences of sales of this nature, had not passed; that the transaction took place more than twenty years since; and that the probate records are now incomplete; the Court are satisfied that the judge’s direction to the jury was correct, and that the jury made a fair and legal presumption. And as, before that statute, there was no mode established for perpetuating the evidence of sales of land under a license of Court, if presumptions, under these circumstances, are not to be allowed, the -title to man) estates, holden under sales by license, will be shaken, if not defeated. And these presumptions are not strange, than the common case in the English books of presuming a grant after twenty years undisturbed possession .

Judgment according to the verdict. 
      
      
        [Knox & Al. vs. Jenks, 7 Mass. 488.—Colman & Al. vs. Anderson, 10 Mass 405. —Perkins vs. Fairfield,, 11 Mass. 227.—Blossom vs. Cannon, 14 Mass. 177.—Pejepscot Proprietors vs Ransom, 14 Mass. 145.—Without regard to the lapse of time, was it not to have been presumed, after proof of the authority to sell, and the conveyance conformably thereto, that every thing required by law, had been legally done, until the contrary had been proved ? Omnia presumuntur rite et legitime esse acta donee in contranam probetur.—Matthews, Pres. Ev. 25—37.—Ed.]
      
        
        [Note. The demandant counted on the seisin of his ancestor within fifty years and on a disseisin done to h.m by Sylvanus Hussey, within that time. The genera, issue, nul disseisin, was pleade 1 and joined. On the evidence it appeared that the demandant’s ancestor died seised, that the lands descended to the demandant, and to his brothers and sisters, and that Hussey never entered until after the death of the ancestor. Upon this evidence, ought not the jury to have found that Hussey did not disseise the ancestor ? But the point was not saved at the trial, nor was it made a question to the Court.]
     