Bergin v. McFarland, 26 N.H. 533

Bell, J. At common law, the real estate of a deceased owner at once vested in the heir at law or devisee. As such, the heir or devisee was at once entitled to maintain any action, real or personal, which he might find necessary for the protection of his rights. Bean v. Moulton, 5 N. H. Rep. 450. .The personal representative of the deceased had, as such, no rights whatever, connected with the real estate. His duties and his powers were entirely confined to the personal estate and choses in action of the deceased. Gibson v. Farley, 16 Mass. 280.

By an early British statute, lands in the colonies were subjected, equally with the personal estate of the debtor, to the payment of his debts. Stat. 5 George II. Prov. Stat. of N. H. 1771, p. 233. And by very early statutes, both of Massachusetts and of this province, power was conferred upon executors and administrators to sell the real estate for the payment of debts, in case the proper courts, upon application, should deem the sale necessary or proper, and should grant a license for that purpose. N. H. Prov. Stat. 1771, p. 90, 4 George I.; Mass. Prov. Stat. 1742, p. 75,8 Wm. III.

But the authority given by such license was deemed a mere naked power to sell, unaccompanied by any interest; and the estate was deemed, notwithstanding, to vest at once in the heirs, subject to be divested by a proper sale under the license. Until the estate was thus taken from, them, the heirs were entitled to enter upon the property, to maintain the exclusive possession, to take the profits to their own use, and to maintain actions against any persons who should interfere with the possession, precisely as the original owner might have done. Bean v. Moulton, before cited.

The personal' representative, as such, even after a license, had no right to enter and occupy, to take the profits or maintain any action relative to the real estate. 16 Mass. Rep. 285. An important change was made in these respects by the statute of 1829, substantially reenacted in the Revised Statutes. It is there provided that the administrator shall receive the rents and profits of the real estate, in case the estate is insolvent, and shall keep the same in repair, and shall account for the net proceeds thereof in his administration account; ch. 159, § 10.

And the administrator may, as such, maintain any action necessary and proper to be brought in relation to the real estate of the deceased, in cases of insolvency, until the administration is closed; ch. 161, § 19. These statute provisions gave to the administrators of insolvent estates a special and limited estate, to continue until it should be terminated by a valid sale, under a license from the court of probate, or until the close of the settlement of the estate, if a sale should not be necessary.

During the continuance of this estate, no action could be maintained1 by any of the heirs against the administrators themselves,, or against any person who could show a title under them. There is nothing in the case, as here stated, which shows when administration was granted, nor when, if ever, it was-closed. We may, therefore, for the present purpose, assume that the settlement of the estate is yet in progress, and the administration not closed.

The question, then, presented by the case is, whether the heirs can maintain a real action against the grantees of the administrator, pending the administration, where the admin* • istrator’s deed, from some deficiency or illegality of the proceedings, from loss of papers or other causes, is inoperative against the heirs.

It is very clear that a defect in the proceedings relative to the. license and sale may make the estate, which is attempted to be conveyed, defeasible as to the heirs, while the same conveyance may be valid and binding as between the administrator and the 'purchaser, and absolutely indefeasible by the administrator. The brevity of the case does not enable us to collect what were the precise defects which led the administrator to believe that the proceedings were insufficient; but nothing is suggested of any defect in the deed, and we may, therefore, assume that the deed, in itself, is well enough.

Such deeds usually contain, a recital of the license, and covenants that the grantor has complied with the requirements of the law to enable them to make a good title. By his deed the administrator would ordinarily be bound, and the deed would convey a title,- good against him, however it might be as to others.

The Revised Statutes have adopted and made general a principle, applied at common law in some cases, that a “ conveyance made by any person having a limited interest in any estate, purporting to convey a greater interest than he possessed or could lawfully convey, shall not work a forfeiture thereof, but shall pass to the grantee all the estate which he could lawfully convey.” Rev. Stat. eh.. 129, § 6.

Upon this principle, the conveyance of the administrator passed to the grantee all the limited interest and qualified estate given him by the law, the right to receive the rents and profits, and, of course, for that purpose to keep the pos.-session until the administration of the estate is closed. This estate, limited as it is, is not defeated by an ineffectual attempt to sell and convey the fee, and it constitutes, while it continues, a perfect- title to the purchasers as against the heirs. So that, upon the facts presented to us, the plaintiffs fail to maintain their action.

If it were in the power of the plaintiffs to show that the administration of the estate of the deceased ancestor was once closed, so that the estate given by the statutes to the administrator had come to an end, it might well be contended that though the administration might be opened for some purposes, as for the purpose of granting a new license, where necessary papers or proof had been lost, yet that the estate of the administrator once terminated, could not be thus revived. But this result, if admitted to be correct, would not probably be of service to the plaintiff.

Supposing that he were, upon the facts before us, entitled to recover, yet if the property should be sold, or if it has already been sold by the administrator, in pursuance of the license directed by this court, to be granted by the court of probate for the county, that sale must divest the plaintiff’s title wholly. And if that sale is made to the defendant himself, or to any person under'whom he may have a right to protect himself, (Bailey v. March, 3 N. H. Rep. 274,) he may set forth these facts by a plea puis darrein continuance and will then be entitled to judgment.

And although it was held in the case of Bean v. Carroll, 5 N. H. Rep. 540, that the right of the heir to recover will not be defeated by showing a sale of the estate by the administrator to a stranger, or by such sale to the tenant himself, as in Tainter v. Memenway, 7 Cush. 573; yet we apprehend that doctrinemust be restricted to cases like that then before the court, where the trial was had upon the general issue.

Where the title of a demandant is terminated by his own act, or by a condition or limitation affixed to it in its origin, or is superseded by a paramount title pending a suit, w.e regard it as generally true, that the tenant may take advantage of that fact to defeat the action, by a plea puis darrein continuance. Walcot v. Knight, 6 Mass. 418; Bailey v. March, 2 N. H. Rep. 523; Walcutt v. Spencer, 14 Mass. Rep. 410; Gould v. Newman, 6 Mass. Rep. 241; Stearns’ R. A. 226; 1 Com. Dig. Abat. H. 56. And upon this view it would be immaterial to- whom the sale should be made by the administrator.

Its effect would be to divest and destroy all the demandant’s title ; and this fact, properly pleaded, would be a perfect answer to the action. According to the provision of the case, there must be Judgment for the defendant.