LAY'S EXECUTOR vs. LAWSON'S ADM'R, 23 Ala. 377

GOLDTHWAITE, J. Ac to the competency of Mrs. Lay: In McGuire v. Shelby, 20 Ala. 456, we held, that a distributee of an estate was pri'ms facie an incompetent witness, when his testimony tended to increase the funds of the estate. In the present case, the witness was a distributee in both estates, the one represented by the plaintiff, and the other by the defendant; hut the whole number of the distributees of the estate of Lawson were but four, while the distributees of the estate of Lay exceeded that number.

It follows that the distributive share of the witness in the property, if recovered by the plaintiff, would be larger than her share in the same property if it belonged to the estate of Lay. Upon these facts, therefore, she was an incompetent witness, and there was error in the ruling of the court, which admitted her as competent to testify. It is said, however, that the facts disclosed by this witness upon her examination in chief, which are disclosed by the record, are sufficient to repel the presumption created by the facts stated on her examination on the voir dire.

It is unnecessary to examine the testimony referred to, for this purpose ; for, conceding for argument’s sake, that the view taken by the counsel for the defendant in error is correct, as to the effect of this evidence, we all agree that it cannot be looked to to cure the error previously committed. Upon this point it is to be observed, that the issue before the court upon the voir dire, was simply as to the competency of the witness. That issue was decided, and another and a different issue presented to the jury.

If the evidence given by the witness upon the last issue had been submitted to the court upon the first, it may be that the defendant could have shown, by her further examination, that she was interested, notwithstanding the facts proved by her ; but matters which might thus have shown the existence of an interest on her

part in favor of the plaintiff, although it would have been pertinent to the issue before the court, would not necessarily be connected with the issue before the jury, and in that case would have been irrelevant. The counsel had the right to stand upon his exception as taken, and could not be required to try the same question over in an issue framed for another purpose, and which, by the rules of law applicable to it, might not allow him to introduce the same evidence as upon the voir dire.

It also urged that the sale made by Sanderson, the first administrator of Lawson, was void, for the reason that no bond or other security was given by the purchaser. This question involves the construction of the first

section of the act of 1809, (Clay’s Dig. 223 § 13,) which is in these words : “ It shall not be lawful for any executor, administrator or guardian, to take the estate, or any part thereof, at its appraised value, or to dispose of the same at private sale, except where the sale is directed by the will of the testator.

But in all cases where it may be necessary to sell the whole, or any part of the personal estate of any testator or intestate, it shall be the duty of the executor, administrator or guardian, to apply to the Orphans’ Court of their county for an order of sale, and upon obtaining the same to advertise the time and place of such sale, in three or more public places in their county, at least thirty days previous to the day of sale, and then and there proceed to sell the same, at public sale, to the highest bidder, giving at least six months credit; the purchaser giving bond with approved security.”— It has been settled by the repeated adjudications of this court, that a private sale ox the property of the estate, made by the administrator, is void.—Weir v.

Davis, 4 Ala. 444; Dearman v. Dearman, 4 Ala. 526; Fambro v. Gantt, 12 Ala. 398; Swink v. Snodgrass, 17 Ala. 653. The eiFeet of the statute is, to declare this act unlawful, and it is upon this ground that the decisions referred to are based ; but it does not necessarily follow, that the same consequences result from a failure on the part of the administrator to observe the other requisitions prescribed by the same section.

The sale is not declared to be nugatory by the non-observance of such requisitions; and whether they are directory or mandatory, must, after all, depend upon the sound construction of each regulation, and of apparent legislative intention with regard to it.—Bank of United States v. Dandridge, 12 Wheat. 64.

We entertain no doubt that it was tho object of the legislature, not only to prevent private sales of tho property belonging to estates by the administrator, but any sale whatever, unless required by the condition of the estate, or the nature of the property proposed to be sold; and for that reason, it is essential to the validity of administrators’ sales that tho authority to soil should be derived from the court charged with the general direction and superintendence of the estate, and that it should be public; hut we are not prepared to say that the provisions of the act which prescribe the notice, or relate to the security which is to be taken from the purchaser, stand upon the same grounds.

On the contrary, we regard them rather as directions to the administrator, than as entering into the essence of the sale, and necessary to its validity. If, indeed, the last requisition was mandatory, it would seem that not only the particular description of security required must be given, but that it must be given by the person specified in the act. The statute requires the bond of the purchaser, with approved security.

The term “ bond” is of definite and settled meaning; it is of higher sanctity and greater privilege than an instrument not under seal; and we know of no rule which would allow it to be dispensed with, if the requisition was other than directory. The same principle would apply to the term “ purchaser.” Yet we know that it is the general practice to secure the purchase by noto with security; and in Dean v. Rathbone, 15 Ala. 328, we held that the administrator was discharged, by taking the bond of á third person with security; and this decision shows that the entire provision is not mandatory.

In case of a private salo, or a sale without an order of court, the personal representative acts without authority ; but the giving of notice, and taking security, are regulations prescribed for the exercise of his authority, applying only to the mode of doing the act, and should he fail to observe them, the sale may be avoided, or the bond of the administrator be resorted to, but tho sale is not void. Neither is there anything in the objection which is made to tho order of sale by the Orphans’ Court.

It is true, that it does not appear upon the face of the order that it was granted upon the application of tho administrator, but after the lapse of twenty years it may fairly be presumed that it was so made.—Gantt’s Adm’r v. Phillips, at this term, and cases there cited. It follows necessarily from these views, that the charge of the court as to the statute of limitations was erroneous.

The evidence show's that the sale was made in 1828, and that upon the sale, Mrs, Lawson, the purchaser, acquired possession, and held the slave as her own property, until her marriage with the defendant’s testator in 1832; and that from that time until his death in 1851, she was held and claimed by such testator.

The first administrator, Sanderson, could have brought suit for the slave on the failure or refusal of the purchaser .to give security, and the possession was therefore adverse, and upon the evidence as stated in the bill of exceptions would have warranted the charge, that a perfect title as to the slave Martha and her children wTas vested in tho defendant’s testator by the operation of the statute of limitations.—Howell v. Hair, 15 Ala. 164; Jones v. Jones, 18 Ala. 248. As to the slave Isaac, there was no error in the charge of the court prejudicial to the defendant.

The evidence showed that he was held under a bailment made by the former administrator to Mrs. Lawson, and there was no evidence tending to show any adverse possession so far as he was concerned. The bailment, taken most favorably for the defendant, terminated, when the objects for which it was made were accomplished-, and it then devolved upon the party in possession, under the operation of the general rule in cases of this character, to return the slave if there was any person authorized to receive him. — Story on Bailments § 414; Benje v. Creagh, 21 Ala. 151.

As to him, therefore, the plaintiff was entitled to recover damages by way of hire, from the taking out of letters of administration de bonis non. The matters alleged in the third plea constiuted no defence to the action, and the demurrer to it was, therefore, correctly sustained.—White v. Ross, 5 S. & P. 123; Bettis v. Taylor, 8 Port. 564; Bell v. Pharr, 7 Ala. 813. As to whether the adverse possession for six years could be given in evidence under the general issue in the present action, it is certain that possession of that character, and for that length of time, confers a perfect title on the possessor.

The statute of limitations acts upon the title of personal property, and not only bars the remedy, but destroys the right. The possessor, having a complete title by adverse possession, could recover upon such title, if plaintiff; and that being the case, the same title may be proved by him when sued, under the general issue.—Smart v. Baugh, 3 J. J. Marsh. 308; Elam v. Bass, 4 Mun. 301. As the points decided will probably be decisive of the case upon any future trial, it is unnecessary to consider the other questions presented. The judgment is reversed, and the cause remanded.