
    William N. Osman vs. Nathaniel Traphagen.
    In July, 1847, A and B, as administrators of an estate, are licensed to sell two parcels of land A gave the bond and took the oath required by law, but B declined to qualify. A sold th» two parcels together, June 17,1848, and made his report of sale which was confirmed June 4,1£49, A executed a d*ed to the purchaser and received the last of th® purvtwifc money. Subsequently both adm inistrators filed thoir accounts which were allowed. In a suit in ejectment by the heir of decedent against one holding by mesne conveyances un dor the administrator's sale, Held,
    1. The omission to sell in parcels was a mere irregularity, not to be attacked collaterally.
    2. The statute does notrequire the purchase money to be paid before the deed is given. The administrator may give credit for not more than three years on three-fourths ®f the purchase money.
    U. The omisBiou to give a deed within one year from the date of order of sale cannot be urged agaiust the title.
    4, Thenon-joiuder of the administrator, who failed to qualify, iu the sale nml conveyance cun not be urged against the fcU-lo.
    Error to Oakland Circuit.
   Opinion by

Graves, J.

This was an action of ejectment by Traphagen to recover two separate parcels of laud iu Oakland County. The case was tried without a jury, and the facts found that in September, 1846, Nathaniel Traphagen, the father of defendant, died seized of the land, leaving Mary Traphagen, his widow» and the defendant, his son and only heir. Letters of administration were issued to the widow and to Abraham A. Traphagen, the father, of decedent, who regularly qualified and entered upon the trust, and continued iu office until the estate was settled. The land in question was appraised at $400, and demands allowed by the Judge of Probate, acting as commissioner, against the estate to $477 61.— After deducting the authorized allowances no personal property remained to pay the debts, and the administratrix and administrator applied in November, 1847, for a license to sell the real estate, which was duly granted in July of that year, and which directed the order of sale of the'several parcels. The administratrix refused to proceed any firther in the matter of sale after the obtaiument o.f the license, whereupon the administrator went on and gave the required bond and took the oath, advertised the premises to be sold at a specified and proper time and place, and sold the two parcels at one bid, subject to the widow’s right of dower, to Margaret A. Miller for $225. This sale occurred June 17, 1848, the widow theu residing on the premises and by her attorney forbidding the sale — Two days thereafter the Judge of Probate duly confirmed the sale, and on the 4th of June, 1849, the administrator conveyed the premises to the purchaser, and received the last of the consideration money. The administrator and administratrix filed their accounts with the Judge of Probate, by whom they were allowed, Suhaequently Margaret A. Miller, the purchaser, and her husband, conveyed the premises by warranty deed to the said Abraham H. Traphagen, who afterward, by like conveyonee, transferred them to plaintiff, he being a purchaser in good faith for valuable consideration, and with no actual knowledge of the alleged facts, and he was in possession, claiming title when and before the suit was commenced.

The Court below, found as a matter of law, that the execution of the deed was defective, because only one of the administrators signed and executed it, wherefore it was a case of defective execution of a power which could not be remedied on the law side of the Court. Judgment was accordingly given for defendant.

The defendant insists that the sale was irregular and void; first, because the sale and conveyance were by only one of the two representatives, when the license was given tp two; second, because two separate and distinct parcels were sold at one bid ; third, because the sum bid was not paid in full before the deed was given ; fourth, because the deed was not delivered within a year from the sale.

Held, That if the two parcels were sold together, the sale was not made void thereby. That fact went no farther by way of impairing the sale than to make it voidable at the instance of someone aggrieved, and in a direct porceeding in the Probate Court or upon appeal. The omission to sell in parcels will be treated as a mere irregularity which cannot be resorted to to invalidate the sale when attacked collaterally.

Held also, That the statute does not reqnire the purchase money to be paid before the deed is given. The administrator is allowed to give credit for not more than three years on three-fourths of the purchase price.

Held further, That the omission to give a deed within a year from the order canriot be urged against the title. That question is settled in Howard vs. Moore, 2 Mich., 226.

Held further, -That the fiou-joinder of the administratrix did not nullify the sale. íáhe never qualified in reference to such sale, and therefore could not act. The sale was that of the administrator, and he was the only person competent to make it. it. was duly confirmed by the Probate Judge, who in such confirmation passed upon the question of its legality.

The judgment must be reversed with costs and a new trial ordered.  