
    Matilda Hamner and others v. William Holmes.
    January Term, 1874.
    1. Administration: BeHnqu.islim.ent of Mortgaged Property. Under the executors’ and administrators’ act of 1859, if one died, having purchased real estate and not having completed the payment of the purchase money, the probate court might order the relinquishment by deed of the property to the vendor on the most advantageous terms that could be agreed upon.
    2. -. Such relinquishment could be ordered whether the purchase was evidenced by a bond for a deed, or by a conveyance in fee, and mortgage back.
    Error from Atchison district court.
    Ejectment brought by Matilda Hamner and nine others, as the •heirs of John Hamner, deceased, to recover the possession of 160 acres of land. Holmes answered, setting up title in himself, claiming as the grantee of R. S. McCubbin, the patentee. The district court, at the November term, 1872, overruled a demurrer to the answer, and gave judgment for the defendant.
    
      *A. II. Horton and B. P. Waggener, for plaintiffs.
    The second defense demurred to sets forth the proceedings had in the probate court under section 116, p. 529, Comp. Laws 1862; and we insist that all the proceedings so had in said court were null and void. The administratrix had no authority to relinquish to McCubbin the land on which a mortgage had been given, and the probate court had no authority thus to dispose of the assets of the estate to pay the debt and claim of McCubbin. A special authority to transfer title given by statute, which is in derogation of common law, must be strictly pursued in every substantial particular. A party purchasing when such an authority has not been strictly pursued, does so at his peril. Gridley’s Heirs v. Phillips, 5 Kan. *349; Denning v. Smith, 3 Johns. Ch. 344; Atkins v. Kinnan, 20' Wend. 241; Jackson v. Shephard, 7 Cow. 88. Courts of equity cannot carry into effect the incomplete execution of statutory powers. 5 Kan. *349; Peters v. Warren Ins. Co., 1 Story, 468; Bright v. Boyd, Id. 478.
    The note and mortgage should have been disposed of by the administratrix under the orders of the probate court according to section 118 or section 119, p. 529, Comp. Laws. Section 116 of said act does not apply to the payment of a note and mortgage where the title is perfect in the estate; and a deed ordered by a probate court in violation of law, is a nullity. As there is no vendor’s lien in this-state, the purchase money, being unpaid after a deed is given, does not enter into the consideration of this matter. Simpson v. Mundee, 3 Kan. *172; Lake v. Meier, 42 Mo. 389. As McCubbin took the note and mortgage from Hamner, he occupied the position of a creditor merely at the death of Hamner, and had only a debt secured by a mortgage on the land of the deceased. Section 119, p. 529, Comp. Laws, points out explicitly what action may be taken under such circumstances.
    Again, the plaintiff Matilda Hamner did not give her deed, but-simply sold the right, title, and interest of her late husband, the deceased; and now she can claim her interest in the said premises, the same as though no deed had ever *been made. A void deed does not affect her, and, of course, it does not affect the-other plaintiffs. Wallace’s Lessee v. Miner, 6 Ohio, 367; Patterson’s Lessee v. Pease, 5 Ohio, 190.
    The sixth defense is the statute of limitations. The statute will not run against a void order or a void deed. Further, said sixth defense does not show that said property was sold “on execution,” or “upon an order or judgment of a court directing such sale,” and hence facts sufficient are not stated to have the plea of the statute sustained.. Code, § 16, els. 1, 2.
    Several of the plaintiffs are minors, and their consent could not be legally obtained, and no showing is made of any attempt to have their consent obtained. Sections 1, 2, 3, p. 580, Gen. St. 1868. It is not pretended by the answer that any of the heirs of said John Hamner, other than the said administratrix, had any notice of the action to relinquish the estate of Hamner to McCubbin; and by the-action of the probate court and the administratrix in this matter both the heirs and the creditors of said John Hamner were prevented from redeeming the estate from the mortgage of McCubbin, and were also prevented from contesting the amount of the debt claimed by Mc-Cubbin.
    
      W. W. Guthrie and Thos. Metcalfe, for defendant.
    • The case shows that McCubbin sold the land to Hamner, taking back a mortgage for $1,180, the purchase money, at 20 per cent, interest, and that after Hamner’s decease, the mortgage then amounting to $1,730, upon proceedings had in the probate court, in. January, 1863, the administrator, Matilda Hamner, released, by deed, the land to McCubbin; that he went into posession in June, 1864, and that since that time he and his grantee, the defendant, have improved the land and paid the taxes. The conveyance by the administrator, upon the surrender of the note and mortgage, was authorized by section 116, c. 91, Comp. Laws. The probate court had jurisdiction, and its orders and decrees cannot be attacked collaterally.
    The seventh defense is an estoppel, — liens to extent of *mortgage for $1,730, at 20 percent, from January, 1863, and taxes paid, with improvements and interest added. A case of estoppel is certainly made within the rule of Maduska v. Thomas, 6 Kan. *160, and Carithers v. Weavers, 7 Kan. *125. By such proceeding either McCubbin got title, or the satisfaction of the mortgage must be treated as a mutual mistake, and both parties, if either, must be restored as before.
   Brewer, J.

The question in this case is as to the validity of certain proceedings had under section 116 of the executor’s act of 1859. Comp. Laws, 529. The question arises on demurrer, and the facts alleged in the pleading demurred to are substantially as follows: One R. S. McCubbin was the patentee of the land in controversy. In October, 1859, he sold and conveyed it to John Hamner. Hamner did not pay the purchase money, and on September 8, 1860, to secure it, he and Matilda Hamner, his wife, executed a mortgage on the land for $1,180. Thereafter John Hamner died, and his widow, now one of the plaintiffs in error, was duly appointed administratrix. Thereafter she filed her petition under said section 116, and obtained an order to redeem the land upon surrender of the note and mortgage, and in pursuance thereof she executed a deed as administratrix, and McCubbin surrendered the note and mortgage. Was this order of the probate court ultra vires, and the deed made in pursuance thereof void ? Section 114 of the same act reads: “If any person die, having purchased real estate, and shall not have completed the payment, * * * and the completion of such payment would be beneficial to the estate, * * * the executor or administrator, by order of the probate court, may complete such payment out of the assets in his hands, and such estate shall be disposed of as other real estate." Section 115 authorizes the sale, under certain circumstances, of thq right, title, and interest of the deceased. Section 116 reads: “If. such real estate has been purchased from individuals, the court may,if they believe it advantageous to the estate, order the same to-be relinquished to such individual on the most advantageous terms that can be agreed upon.” Section 117 authorizes asimilar relinquishment in case the purchase was of school lands. Sections 118 and 119 then provide that in case a person die, having mortgaged his real estate, the court may, under certain circumstances, order the payment of the mortgage out of the personal assets, or a public sale of the right, title, and interest of the estate in the property.

It cannot be denied that these last two sections apply to a case like the present; but they do not authorize a relinquishment, and only permit a public sale. The question is whether the preceding sections are also applicable. And, surely, the case comes within the very letter of the statute: “If any person die, having purchased real estate, and not having completed the payment.” John Hammer died, having purchased real estate, and not having completed the payment. True, he had received a deed in fee, and given a mortgage to secure the purchase money. But the law regards the substance, and not the form, of the transaction’. The statute is silent as to the instruments by which the transaction is accomplished, or the facts evidenced. It does not specify a bond for a deed, or exclude a conveyance in fee, with mortgage back. It reaches directly to the absolute facts, and ignores the form and the instruments. It seems to us; therefore, that said section 116 was applicable to the facts as stated, and' authorized the proceedings had. It will be unnecessary, therefore, to consider the other questions raised as to the statute of limitations, and the éstoppel. The judgment will therefore be affirmed.

(All the justices concurring.)  