Puckett et al. Appellants v. McDonald et al., 6 Howard 269

Mr. Justice Trotter stated the case, and delivered the opinion of the court. That the decree of the probate court is a nullity, and conveyed no authority to the administrators to sell the real estate, is too manifest, we think, to admit of any argument. The court had no jurisdiction of the persons interested in the subject of the decree, because no notice, either active or constructive, was ever given them of the application made by the administrators. And hence, according to the decision which has just been made in this court in the case of Lewis Campbell et al. v. W. J.

Brown and wife, the order is absolutely void. The principle of the two cases is precisely the same; and hence the defence is fully made out, unless the circumstance that the purchaser in this case took a deed with covenants, and went into possession, subjects it to a different determination. We freely admit the doctrine, that when the vendee of land is let into possession under a deed with full covenant's, and there has been no eviction nor any fraud, that he cannot resist the payment of the purchase money on the alleged ground of a defect of title.

In such case, he is driven to his remedy upon the covenants in his deed. This case is however widely different from those where this doctrine is applied. Here the vendors were only acting as trustees in carrying into execution an order of the probate court.— That order is void, and consequently nothing passes or can pass b]/- their subsequent act. The sale is virtually made by the court, and the administrators act only as commissioners to execute the order of sale.

Their covenants in such circumstances cannot furnish a foundation upon which an action can be maintained against them personally, nor any protection to the vendee; nor can the vendee be supposed to place any reliance upon such assurances, since the contract itself, from its nature, is intended to convey only the title of the deceased. The purchaser must necessarily in such case rely upon the title of the deceased,, and the validity of the order of sale by the court. This view of the subject appears to be fully sustained by the authorities. See 2 Stewart’s Ala. Rep. 335; 8 Mass. Rep. 46.

In this case, there is evidently nothing upon which the deed can operate. It is absolutely void, and so shown to be by the record of the court. No eviction is therefore necessary, since the paramount title of the heirs is as effectually established by the evidence as it could be by the record of eviction. We therefore think the decree of the chancellor should be reversed, and the injunction reinstated, and the cause remanded.