HutchinsoN, J.
delivered the opinion of the court. Several exceptions were taken at tire trial of this cause, which are now to be disposed of.
The first is to the County Court’s compelling the defendant to proceed to trial on the amended declaration. We .deem this to be right in the County Court, whether the allowance of the amendment were right or wrong. The action was regularly pending before the Supreme Court when they allowed the amendment, and •they had power to allow all proper amendments in furtherance of justice; and it was their duty thus to allow them. After the amendment was made the cause was sent to the County Court for a jury-trial. It would hardly have been decorous, to say the least of it, for the County Court to refuse to try such issues as were sent to them from the Supreme Court for trial, especially for them to judge over again a question decided by the Supreme Court on the propriety of any particular amendment. Furthermore, we discover no good reason why the amendment was not correctly allowed. It is true, tlie piece described in the new declaration is not m any exclusive sense, nor in the most appropriate sense, in the south east comer of the lot. Yet it was there, as it was in the .south west corner. The south east,,corner was the place of beginning. And the deeds, describing the land as in the amended declaration, had been read without objection on the trials before the amendment. And the whole dispute had been about the title to this particular piece of land. The difficulty was not that the first declaration contained no land, for it necessarily contained thirty-six acres. The difficulty was, it was defective in not giving the particular boundaries to which the plaintiff intended to make title.
The defendant’s counsel endeavour to attach importance to [162] to this amendment from its possible ef* feet with regard to the statute of limita-1 íioirs, and the defendant’s claim to hold as tenant in common* Probably, if ari amendment brought upon the record a claim forland, that by nd construction could be ■ considered within tire original declaration, the statute would run till the amendment made ; but otherwise, where the land, as in this case, may he within the original declaration. In such case, supplying the defect by a particular description will operate as if so made in the beginning'.
We discover no tenancy in common, in the case. The deed from Gordon to Knight and Hyde, under which the defendant claims, conveys “ o'ne certain tract or parcel of land, &£c. the first “ division lots of the rights of Thomas Tolman and Elijah Her- “ ride, and twenty-eight acres off from the lot laid to the right of i£ John Wood, adjoining.” It appears by the map that said Tol-man-lot lay ndrth of the Wood-lot, and said Herrick-lot lay tvest of the'Wood-lot and Tolman-lot. Now this deed conveyed no right throughout tire Wood-lot, but only twenty-eight acres to come off somé where. It might come off from the' north side, or the west side, and be adjoining : or the word adjoining might refer to the whole lot of Woodh right,- being adjoining the other lots. In which case it might be taken from any part then owned by the grantor. But the most natural construction is, that the twenty-eight acres must adjoin one of those other lots; mo're especially, as otherwise, the whole would not be in one piece or parcel as described in the deed. But, if the deed of the twenty-eight acres did contain tire land now in dispute, it would convey no title unless a mere equity of redemption, beoause Gordon, in the preceding June, had mortgaged to Boardman the same land described in this amended declaration. We must endeavor in some way, to ascertain the meaning of the parties in their - contract. What they intended to convey might be within the description they have given. As this description is, we may resort to evidence aliunde. Now it appears from the case that this piece now in dispute had been fenced off from the lot in 1798-9, and conveyed to Boardman in June 1800. Hence it would be wrong to presume an intention in November, 1800, to convey twenty-eight acres of [163] this 36 acres, when Gordon at the same time owned, of the same' lot, sufficient •that lay upon the north side-and the west side to make the twenty-eight acres, and much more.
Upon the whole we consider the deed of the twenty-eight acres as riot comprising any of the land now in dispute.
2. We come to the question of the plaintiff’s administration and •his right to sue. We have had no special difficulty except upon this point, and not so great upon this as to trouble the plaintiff’s counsel upon it-. It is a question with the court, whether this can arise • upon the merits of tire case, or whether it must not be pleaded in ábatemérit ? From the reason of the thing it ought to be pleaded in abatement: for it is an objection to the plaintiff’s representing the deceasedj’while the general issue tó the declaration most technically calls in question the right of the deceased to oust the defendant from the premises. The- géneral rulé is ’that .an, objection, to the person of the plaintiff, or whether hie or some one else shall bring the action, must be pleaded in abatement. And whether the plaintiff is regularly adriiinistratof or executor of the deceased is of that character; and it would be an expensive hardship if the whole costs of preparing the cause for trial on both sides can be thrown upon the plaintiff by a trial of the question whether hé has a right to personate the deceased in prosecuting the claim he sets up. Some authorities seem to suppo'se that this objection may be raised under thé general issue. But 2 Phil. Ev. 289-90, is full in point that, under the general issue, an executor or administrator need not prove himself invested with the character in which he claims. He cites 15 Johns. 208, Carpenter et al. vs. Whitman et al.—1 Brown, 115. Nor would defendant in such case, be admitted to controvert the plaintiff’s right to pursue his claim.
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HutchinsoN, J.
delivered the opinion of the court. Several exceptions were taken at tire trial of this cause, which are now to be disposed of.
The first is to the County Court’s compelling the defendant to proceed to trial on the amended declaration. We .deem this to be right in the County Court, whether the allowance of the amendment were right or wrong. The action was regularly pending before the Supreme Court when they allowed the amendment, and •they had power to allow all proper amendments in furtherance of justice; and it was their duty thus to allow them. After the amendment was made the cause was sent to the County Court for a jury-trial. It would hardly have been decorous, to say the least of it, for the County Court to refuse to try such issues as were sent to them from the Supreme Court for trial, especially for them to judge over again a question decided by the Supreme Court on the propriety of any particular amendment. Furthermore, we discover no good reason why the amendment was not correctly allowed. It is true, tlie piece described in the new declaration is not m any exclusive sense, nor in the most appropriate sense, in the south east comer of the lot. Yet it was there, as it was in the .south west corner. The south east,,corner was the place of beginning. And the deeds, describing the land as in the amended declaration, had been read without objection on the trials before the amendment. And the whole dispute had been about the title to this particular piece of land. The difficulty was not that the first declaration contained no land, for it necessarily contained thirty-six acres. The difficulty was, it was defective in not giving the particular boundaries to which the plaintiff intended to make title.
The defendant’s counsel endeavour to attach importance to [162] to this amendment from its possible ef* feet with regard to the statute of limita-1 íioirs, and the defendant’s claim to hold as tenant in common* Probably, if ari amendment brought upon the record a claim forland, that by nd construction could be ■ considered within tire original declaration, the statute would run till the amendment made ; but otherwise, where the land, as in this case, may he within the original declaration. In such case, supplying the defect by a particular description will operate as if so made in the beginning'.
We discover no tenancy in common, in the case. The deed from Gordon to Knight and Hyde, under which the defendant claims, conveys “ o'ne certain tract or parcel of land, &£c. the first “ division lots of the rights of Thomas Tolman and Elijah Her- “ ride, and twenty-eight acres off from the lot laid to the right of i£ John Wood, adjoining.” It appears by the map that said Tol-man-lot lay ndrth of the Wood-lot, and said Herrick-lot lay tvest of the'Wood-lot and Tolman-lot. Now this deed conveyed no right throughout tire Wood-lot, but only twenty-eight acres to come off somé where. It might come off from the' north side, or the west side, and be adjoining : or the word adjoining might refer to the whole lot of Woodh right,- being adjoining the other lots. In which case it might be taken from any part then owned by the grantor. But the most natural construction is, that the twenty-eight acres must adjoin one of those other lots; mo're especially, as otherwise, the whole would not be in one piece or parcel as described in the deed. But, if the deed of the twenty-eight acres did contain tire land now in dispute, it would convey no title unless a mere equity of redemption, beoause Gordon, in the preceding June, had mortgaged to Boardman the same land described in this amended declaration. We must endeavor in some way, to ascertain the meaning of the parties in their - contract. What they intended to convey might be within the description they have given. As this description is, we may resort to evidence aliunde. Now it appears from the case that this piece now in dispute had been fenced off from the lot in 1798-9, and conveyed to Boardman in June 1800. Hence it would be wrong to presume an intention in November, 1800, to convey twenty-eight acres of [163] this 36 acres, when Gordon at the same time owned, of the same' lot, sufficient •that lay upon the north side-and the west side to make the twenty-eight acres, and much more.
Upon the whole we consider the deed of the twenty-eight acres as riot comprising any of the land now in dispute.
2. We come to the question of the plaintiff’s administration and •his right to sue. We have had no special difficulty except upon this point, and not so great upon this as to trouble the plaintiff’s counsel upon it-. It is a question with the court, whether this can arise • upon the merits of tire case, or whether it must not be pleaded in ábatemérit ? From the reason of the thing it ought to be pleaded in abatement: for it is an objection to the plaintiff’s representing the deceasedj’while the general issue tó the declaration most technically calls in question the right of the deceased to oust the defendant from the premises. The- géneral rulé is ’that .an, objection, to the person of the plaintiff, or whether hie or some one else shall bring the action, must be pleaded in abatement. And whether the plaintiff is regularly adriiinistratof or executor of the deceased is of that character; and it would be an expensive hardship if the whole costs of preparing the cause for trial on both sides can be thrown upon the plaintiff by a trial of the question whether hé has a right to personate the deceased in prosecuting the claim he sets up. Some authorities seem to suppo'se that this objection may be raised under thé general issue. But 2 Phil. Ev. 289-90, is full in point that, under the general issue, an executor or administrator need not prove himself invested with the character in which he claims. He cites 15 Johns. 208, Carpenter et al. vs. Whitman et al.—1 Brown, 115. Nor would defendant in such case, be admitted to controvert the plaintiff’s right to pursue his claim.
This disposes of the question in a why not urged by counsel.. In reference to the view presented by counsel, there is some difficulty ; and this arises from the circumstance that the town where Gordon resided at the time of his decease was then within the district of Chittenden, and the act then in force, p. 134 Ed. of Laws of 1808, authorising the appointment of an administrator de bonis non, gives the power only to the Judge of Probate who [164] granted administration. This Was é-general law, and seemed to anticipate not difficulties from alterations in the boundaries of the Probate districts ; and the legislature have not, in the Case before us, guarded against such difficulties by any special enactment. In the act-dividing the district of ¿Addison, Rev. Laws, 546, provision is made that all business then begun should be finished in what would remain the Probate district of Addison; This seems natural, at first view, at least, from the circumstance that the record® of the proceedings, as far as they have gene, are there. However, if made certain either way it is well enough.- Copies might be transferred, as was done in this case, to the court receiving the-jurisdiction. Moreover, the same section .ofthe statute, authori-sing the appointment of an administrator de bonis non, directs that such administrator, shall proceed, in all things, in the settlement of such estate, as is before directed in said act. That is, he must-give bonds, .exhibit an inventory, settle his accounts ote. And this is a reasonable provision : for it would be unjust to subject anew administrator to account for the property in the inventory furnished by his predecessor. So far as he should find, and get possession of, the property corresponding with the first inventory, he might be willing so to account; but he should be compelled to account for no more than he can controul: and of this a separate inventory ought to be exhibited. This would bring into one office all the records connected with the settlement of the accounts of the administrator dé bonis non; and leave the accounts of the first administrator to be settled in the office where he received his appointment. There would be no difficulty at all in this regulation,if made and understood. But we are now called upon to reconcile the several statutes where no such special provision seems to have been thought of.. The facts are that Gordon died in Middle Hero (now Grand Isle) which was then in the district of Chitten-den, but, before the plaintiff received his appointment, became a part of the district of Grand Isle. Now, though the statute provides, that the original administration shall be granted in the Probate -Court of the district where Gordon was last an inhabitant j yet, if no administration had been granted till his town was annexed to the district of Grand Isle, tire administration ought to have [165] Ibéen granted in that district. The stat-bte shduld be construed to regulate the jurisdiction of the Probate court at the time when thát jurisdiction must be exercised: and in such case, it would be true that Gordon was last an inhabitant of that district; that is, was last an inhabitant of that town; which; at the time of appointing ah administrator, was a part of the Probate district of Grand Isle-. The principal difficulty now -to be met, is, that the first appointment of administrator; being in the Probate Court for the district of Chit-tenden, where alone it could then be made; the jurisdiction for appointing an administrator de bonis non upon the same estate seems permanently attached to that district, unless severed by some statutory provision; which seems not to exist. Therefore, if the question were now raised by an appeal from the decree of the Probate Court for the district of Grand Isle, making the appbintment, we should feel constrained to reverse the decree. But; to treat the decree as a nullity while it remains unreversed, requires a different cónsideration. The distinction between void and voidable should be as well observed in this case as any other : for great evils would result from a neglect to observe it. The plaintiff took administration in tile Probate Court then .exercising jurisdiction over the territory where the deceased last lived. The court adjudged that they had jurisdiction in this case, and made the appointment of plaintiff under which he has hitherto acted and still acts. No person interested in his administering well or ill is now complaining. For aught that now appears,the defendant, who raises this objection, has always been destitute of any interest which would entitle him to an appeal for the purpore of testing the validity of the decree of the Court of Probate in a regular way. It would, therefore, be a solecism to admit him to contest itin this irregular way, and without any pretence of fraud affecting his rights, when he does not stand as a person whose interest is to be affected by the appointment of the plaintiff. On both grounds above mentioned the objection is overruled.
But the defendant, as a third ground of defence, has set up a title in himself under an order of sale from Judge Miller, in the Probate District of Chittenden, to Philo Berry and Polly Gordon, administrators; and their deed to Robinson, and Robinson’s deed [166] back to Berry, and his deed to the defendant. The deed to Robinson is dated September 6,1805, and acknowledged May 30, 1807. This is virtually a quit claim deed. The only covenant it contains is that the grantors will in future have no claim or demand to the premises. The deed from Robinson to Berry is dated June 1, 1807. These two deeds and the order of sale, and the deed of Berry to the defendant, were all recorded July 9,1807.
This order ofsale was decided to be a nullity after a hearing of this cause in this court two years ago. — 1 Mh. R. 168. But it is urged that the defendant comes in as a bona fide purchaser.— If it be so in other respects, still it cannot be denied that he was fully conversant of all the circumstances : for the case shows that he was present at the recording of the order of sale and of all the deeds July 9,1807. If it were not so, still he could not succeed by setting up á defective title. If the order of Sale was void no title derived from it could be good. The defendant’s ignorance of circumstances could benefit him only in a case of title apparently good* but affected by a fraud of which he was ignorant.
But the defendant urges that the new testimony iii the case,, showing the necessity of a sale of the real estate of 'Gordon for the payment o'f his debts, renders good the order of sale. We think this circumstance cannot avail. It is too loose to be relied upon in the settlement of estates, or in tracing title to real estate. No order of sale should have issued till Berry and P. Gordon had settled their probate accounts and rendered an account of the property under oath, and the record of this settlement should show the result, and that result should exhibit the necessity of a sale of the r'eal estate.
Nor is there,as urged by the defendant’s counsel,any ground tepre-sume those matters correct, which should, but do not, appear. A presumption within the period of the statute oflimitations can only be raised by the proof o'f such facts from which the jury ought to presume the fact relied upon. ' In such a' case length of time is not the principal fact, but onlyto be considered with other facts proved in drawing the inference désired. There were no such facts shown in this case proper tojbe left to the jury with a view to their drawing an inference favorable to the defendant’s claim.
[167]*1674. The defendant sets up a title to the premises in question by virtue of the mortgage deed from Gordon, in his lifetime, to Boardman, the assignment of the same to Berry, and the deed from Berry to the defendant. This assignment was recorded the same 9th of ■July, 1807.
This point was also decided in the same cause two years ago. That decision must now govern the court, unless the deed to the defendant, bringing him into the chain of title, alters the case. We think this cannot legally affect the case. It appears in the case that the defendant was present at the recording of the assignment and the order of sale, and could not be ignorant that Berry was administrator of Gordon's estate. If the estate was worth purchasing or redeeming, it was the duty of the administrator to redeem for the ben.efit of the creditors and heirs. If he redeemed or purchased with the property of the deceased, the transaction Would accrue to the benefit of such heirs and creditors. And the legal presumption is not that he purchased with his own funds, when it \vas his duty to redeem for die estate. If it were so, this ought to be shown. The reference to Toller's Executor and the Office of Executor, alludes to cases where the executor actually purchased with his own funds, when he had no such assets as made it his duty to purchase for the estate. Such a case is not here presented. But the defendant says the legal estate is in him by virtue of these conveyances, and must prevail in this action1 at law, unless the plaintiff first have recourse to equity to compel a reconveyance. This argument, to have weight, must suppose the legal title in the defendant wholly untinctured with fraud ; but, if the court are correct in the remarks already made, Beiry’s taking the assignment to himself when he was administrator, and ought to have taken an acquittance to the estate, was a fraud which vitiates his title and renders it liable to be rejected in an action at law, so far as it is attempted to be set up against the estate of the deceased. And the defendant having purchased with a full knowledge of all that now appears to evince that fraud, can claim nothing that Berry could not have claimed, were he the defendant. The Plaintiff, therefore, as administrator, may resist this title at law, without recourse to equity.
Charles Adams, for the plaintiff
Smalley and Adams, for the defendant.
But lastly, the defendant urges that if all other resources fail for his de-fence, he was so in possession under the title derived from the first administrator, to whose rights only the present plaintiff suceeeds, that he was entitled to six months notice to quit before the commencement of the action. The conclusive answer to this is, that the whole case shows that the defendant’s possession was adverse to the plaintiff. Though the defendant has claimed derivatively from the same source as the plaintiff, or has claimed an interest carved out of the estate claimed by the plaintiff, yet he has all the time claimed to be owner, and acknowledged no right in any other. This part of the defence is contradictory to all the others and cannot prevail.
Judgment must be entered for the plaintiff upon the verdict in affirmance of the judgment of the County Court,