LONG et al. vs. McDOUGALD'S ADM'R, 23 Ala. 413

CHILTON, C. J. The questions made upon the record are: 1. Does the deed of conveyance from the Creek Indian reservee, after it has been approved by the Pi'esident of the United States, convey such title to the purchaser as will warrant ejectment 1 2. Does the written transfer in the name of Fannin & Howell, to McDougald, convey such legal estate in the land, or any portion of it, as entitles the purchaser to sue in this form of action 1 3. Has the administrator of an insolvent estate, under our statutes, the right to maintain an action of ejectment, to recover the lands of the decedent I 1.

The first point is covered by the decision of our predecessors, in tho case of Roper v. Bradford, 9 Por. Rep. 354; and although wo might be disposed to question the correctness of that decision, were the question an open one, we must adhere to it, as having settled a rule of property, a departure from which might seriously unsettle the titles to lands in the country. 2. Fannin & Howell having such legal title as would sustain an ejectment, they had full power to sell and dispose of the same to any other person.

In the absence of proof as to the interest which each of them had in the land, the deed being made to both, the law raises the presumption that they were equally interested. A transfer by words in prcesenti, by Howell to McDougald, of all his interest, right and title to the land, given under the hand and seal of said Howell, operates a good conveyance of whatever legal title he had to McDougald, and he having a moiety, that moiety vested thereby in McDougald.

The fact that he requests, in the transfer, that the United States should issue a patent to McDougald, is nothing more than an order or request to vest him with the evidence of the title, which already resided in him by the conveyance. This transfer is altogether unlike the case of Chapman v. Glassel, 13 Ala. 50, for, in that case, the instrument relied on as a conveyance, not only purported to be a mere obligation to make title in futuro, but the vendee, by a cotemporaneous instrument, expressly admitted that it was a bond, and that certain payments were to be made by him before he could demand a title.

There is nothing of the kind in the case before us. 3. Upon the third point we have had more difficulty. Ordinarily, when a party dies owning lands, they descend to his heirs at lary, and to hold that his personal representative could sue for and recover them, would appear somewhat anomalous. In Phillips v. Gray, 1 Ala. 226, this court was called upon, for the first time, to construe the act of 1839, authorizing the administrator to rent the lands of the decedent until the final settlement.

It is there said, “There can be no doubt, that, in all cases coming within the purview of this act after its passage, the right of the heir to enter upon, and enjoy the real estate of his ancestor, is intercepted in favor of the personal representative of the deceased, until final settlement of the estate.” In Masterson v.

Gerard’s Heirs, 10 Ala. 60, this court held, that the administrator had the right to recover rent upon the demise of his decedent, but that, until he asserted the power given him by statute, by notice to the tenant, or by actual suit, the heir might sue for and recover rent falling due after the death of the ancestor ; thus qualifying the doctrine as asserted by the judge who delivered the opinion in Phillips v. Gray, supra. The construction of the act of 1839 again came before thi§ court, in Haskins v.

Pope, 20 Ala. 493, in which case it was held, that the administrator was, under its provisions, authorized to receive rent accruing after the death of the intestate, on a lease made in his life-time, as he, if living, could recover for use and occupation. In delivering this opinion, also, the judge says : “ It cannot be supposed the legislature intended, as between a former tenant and the administrator, that the latter should either have no power to evict, or recover rent.” — 20 ib 498. In Upchurch v.

Nosworthy, 12 Ala. 532, the court held, that an administrator had no right to the proceeds of the crops made upon the lands of his intestate, with the slaves of the estate, previous to the grant of administration; and it was left as a quere, whether he could not recover the value of the use of the slaves and other personal property. In delivering the opinion, the judge says : “ The title to the land descended to the heir at law, subject to the entry of the administrator, for the purpose of renting it.” — 15 Ala. 534. In Jordan v.

Abercrombie & Thompson, 15 Ala. 580, it was held, that where, in an action of trespass to try title and recover damages, the plaintiff in error, against whom, as defendant in the court below, there was a verdict and judgment for the land and damages, died, it was necessary to revive the suit in the names of his personal representative and heirs at law. It was said, as the title to the freehold was in controversy, it was clear that the heir was the proper representative of the decedent as respected the land, and the administrator as to the demand evidenced by the judgment. — 15 Ala. 582. In Martin’s Ex’r v.

Williams, 18 Ala. 190, we held, that the power conferred by the statute to rent land was a special power, and must be executed in the manner pointed out by the act; that to entitle the administrator to the rents, as assets of the estate, it was essential that the land should have been rented at public outcry, as prescribed by the statute. So, in Chighizola v.

LeBaron, executor &c., 21 Ala. 406, it was held, that the statutes of this State authorizing the executor or administrator to sell or rent the lands of the testator, &c., do not, of themselves, intercept the passing of the estate to the heirs or devisees, who may assert their title, with all its incidents, until the executor exerts the power reposed in him by the statute; that the power to rent was a bare authority conferred by the statute, and must be strictly pursued, and if the lands are not leased, according to the requisitions of the statute, at “ public outcry,” it is not a due execution of the power, and cannot be regarded in any manner as affecting the' rights of the heirs or devisees.

The rule, which we think may fairly be extracted from the foregoing decisions, is, that 'upon the death of the intestate, the lands belonging to him descend to his heirs at law, who hold the legal title, subject to certain powers conferred by the several statutes on the administrator, as the right to rent them at public outcry, if the estate be solvent, until the final settlement ; and if it be insolvent, he is required, under pain of being guilty of a devastavit, to apply for leave to sell the lands to the Orphans’ Court, within three months after the report of such insolvency, — Clay’s Dig. 197 § 27.

The administrator, as such, has no title whatever to the land, but only a power to rent, or, if so ordered by the probate court, a power of sale, which sale, when duly made, divests the title of the heirs, and vests whatever title the ancestor had in the purchaser. — Clay’s Dig. 229 § 46. But the title of the heir is not divested until such sale and conveyance; nor is his right of entry intercepted, until proceedings are commenced by the administrator, to subject such real estate to the payment of the debts.

The administrator may recover the rent accruing either before or after the death of the intestate, upon the demise of the intestate, but he cannot bring an ejectment to recover possession of lands belonging to an insolvent estate. He has no power over such lands, save as conferred by statute, and this gives him no authority to possess them, but merely to obtain an order for their sale, and to sell them.

If any one is in the adverse possession, this does not invalidate such sale, as tho doctrine of adverse possession does not apply to judicial sales.— Whether the administrator might not unite with the heirs in maintaining an action to recover the possession, in order to rent out the land, is a question not presented; for, here, the estate is insolvent, and in such case the land is to be sold, not rented, and this sale does not pre-suppose the necessity of possession in the administrator. He is the mere conduit, through whom the title passes from the heirs at law to the purchaser.

It follows, therefore, that the administrator of McDougaldhas' no such title as will enable him to maintain ejectment, and that the charge of the court was consequently erroneous. We need not examine as to the validity of the tax collector’s deed, since its validity or invalidity would in no wise affect the result. Let the judgment be reversed, and the cause remanded.