Hubbard, J.
It was objected that the deed of Sylvanus Tillson was not properly admitted to record, and for that reason ought not to be received in evidence. That deed bore date November 5th 1819, and was produced in this court, at the last May term, by a person interested in it, that the same might be [361]*361proved, for the purpose of having it recorded. The signer and one of the subscribing witnesses were dead. The other witness, a female, who was produced in court and examined, testified that she had no distinct recollection of the circumstances, nor of her hand writing. The presiding judge, upon this, admitted other witnesses to prove the hand writing of the signer, and being satisfied of its genuineness, he admitted the deed to record. We are of opinion that the judge, thus acting in his official capacity, was competent to decide on the question of fact, whether the deed was duly signed or not, and that the correctness of his decision cannot be inquired into in a collateral manner. It has so far the effect of a judgment, that it is conclusive on the subject, where no fraud has been practised.
A second objection to the deed of Tillson is the fact, that the license of the judge of probate to sell the estate was granted on the 19th of July 1819, but the recital in the deed is of a license granted on the third Monday of August 1819; that the sale is void, because it does not purport to have-been made under the true license; and that the recital of the license is not mere surplusage, but that the party claiming under the deed is bound by it. This, we think, is merely a false description. There was, in fact, a license granted by the judge of probate, which gave authority to sell the estate; and there being other facts, which establish the sale to have been under the license of July 1819, and that no other could have been intended, we are ol opinion that it is not such a mistake and misrecital as vitiate the deed. For though the description is false in this particular, the deed contains the recital of other facts, which controls this false description, and establishes the sale, with sufficient certainty, as being made under the true license. See Dyer, 50 6. Foot v. Berkley, Carter, 150. Worthington v. Hylyer, 4 Mass. 205. Pierce v. Parker, 4 Met. 84.
It is further objected, that there was no sufficient notice prior to granting the license for the sale of the estate, and therefore such license was insufficient and void. The St. of 1817, c. 190, $ 10. then in force, provided that no such license should be granted until after personal notice, or notice given by an advertisement, [362]*362three weeks successively, in such newspaper as the court should order, to all persons interested therein, of the time and place at which they might be heard concerning the same. When the time of notice was directed to be given by advertisement, the statute prescribed the length of time during which notice should be given ; but the time for serving personal notice was left to the discretion of the court. In the present case, the judge of probate ordered personal notice to all persons interested in the estate. In pursuance of that direction, the administrator certi tied, on the order, that he had notified all persons interested to appear and show cause why the petition' should not be granted. And the judge, in his decree granting the license for sale, recited that the administrator had given personal notice agreeably to the order, as was “ made evident ” to him “ by due examination.” As the statute did not prescribe the mode of proof of giving personal notice, nor require that the same should be recorded, it made the court, before which the petition should be presented, the tribunal to judge of the sufficiency of such notice; and that judgment is binding on all parties interested, unless an appeal is taken from the decree. Here the judge has decided on the sufficiency of the notice. It is suggested that the party interested (the present demandant) was a minor, and so not affected by the order. But it not appearing that she had not a guardian, we do not feel bound to assume the fact that she was without a regular guardian, and that he was not notified. After ouch a lapse of time, the sufficiency of a notice, certified by a court competent to decide upon it at the time of receiving it, will not be questioned, without plenary evidence that the same was not in conformity to the requisitions of the statute, and that the party supposed to be aggrieved was not in a situation to avail herself of the right of appeal. On the subject of notice in the probate court, see the observations of the court in Marcy v. Marcy, 6 Met. 360.
It was further argued, that the oath taken by the administrator, prior to disposing of the estate, is not sufficiently recited in the proceedings, and therefore the sale under it cannot be justified. The St. of 1817, c. 190, §>11, prescribes the form of [363]*363the oath to be taken before the judge of probate, or before some justice of the peace, whose certificate thereof shall be returned to the judge of probate. In the present instance, the oath was taken before the judge of probate. The statute does not require, in express terms, that the same shall be recorded; and we are of opinion that the certificate of the judge of probate, that the administrator appeared before him and took the oath by law required of executors, administrators and guardians, previous to their selling real estate, to qualify him to sell the estate, and which certificate was recorded with the grant of the license, is satisfactory evidence that the oath required by law was duly administered, and that this objection, at this period of time, cannot avail the party raising it.
Another objection was taken to the deed, viz. that no evidence was offered to show that the administrator gave the notice required by the statute, prior to the sale. The Sts. 1783, c. 32, § 1, and 1788; c. 66, <§> 6, expressly require that thirty days’ public notice shall be given by the administrator, before making the sale, by posting up notifications of such sale in the town where the lands lie, as well as where the deceased person last dwelt, and in the two next adjoining towns, as also in the shire town of the county, or by a notification printed, three weeks successively, in such gazette or newspaper as the court that may authorize the sale shall order and direct. And the latter statute, and St. 1812, c. 24, also prescribe, that the affidavit of the administrator, or of some person employed by him to post up the notifications, taken before the probate court that directs the sale, and filed and recorded there, within eighteen months next following the sale, together with one of the original advertisements of the time, place, and estate to be sold, or a copy of it, shall be one mode of perpetuating the evidence; and also that the originals, or copies thereof from the register of the probate court, shall be admissible evidence in any court of law. This is one mode of proof, and is prescribed for the convenience of persons acting officially, in making sales of estates belonging to others. But it does not preclude the party from proving it aliunde by competent evidence. On the trial, the [364]
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Hubbard, J.
It was objected that the deed of Sylvanus Tillson was not properly admitted to record, and for that reason ought not to be received in evidence. That deed bore date November 5th 1819, and was produced in this court, at the last May term, by a person interested in it, that the same might be [361]*361proved, for the purpose of having it recorded. The signer and one of the subscribing witnesses were dead. The other witness, a female, who was produced in court and examined, testified that she had no distinct recollection of the circumstances, nor of her hand writing. The presiding judge, upon this, admitted other witnesses to prove the hand writing of the signer, and being satisfied of its genuineness, he admitted the deed to record. We are of opinion that the judge, thus acting in his official capacity, was competent to decide on the question of fact, whether the deed was duly signed or not, and that the correctness of his decision cannot be inquired into in a collateral manner. It has so far the effect of a judgment, that it is conclusive on the subject, where no fraud has been practised.
A second objection to the deed of Tillson is the fact, that the license of the judge of probate to sell the estate was granted on the 19th of July 1819, but the recital in the deed is of a license granted on the third Monday of August 1819; that the sale is void, because it does not purport to have-been made under the true license; and that the recital of the license is not mere surplusage, but that the party claiming under the deed is bound by it. This, we think, is merely a false description. There was, in fact, a license granted by the judge of probate, which gave authority to sell the estate; and there being other facts, which establish the sale to have been under the license of July 1819, and that no other could have been intended, we are ol opinion that it is not such a mistake and misrecital as vitiate the deed. For though the description is false in this particular, the deed contains the recital of other facts, which controls this false description, and establishes the sale, with sufficient certainty, as being made under the true license. See Dyer, 50 6. Foot v. Berkley, Carter, 150. Worthington v. Hylyer, 4 Mass. 205. Pierce v. Parker, 4 Met. 84.
It is further objected, that there was no sufficient notice prior to granting the license for the sale of the estate, and therefore such license was insufficient and void. The St. of 1817, c. 190, $ 10. then in force, provided that no such license should be granted until after personal notice, or notice given by an advertisement, [362]*362three weeks successively, in such newspaper as the court should order, to all persons interested therein, of the time and place at which they might be heard concerning the same. When the time of notice was directed to be given by advertisement, the statute prescribed the length of time during which notice should be given ; but the time for serving personal notice was left to the discretion of the court. In the present case, the judge of probate ordered personal notice to all persons interested in the estate. In pursuance of that direction, the administrator certi tied, on the order, that he had notified all persons interested to appear and show cause why the petition' should not be granted. And the judge, in his decree granting the license for sale, recited that the administrator had given personal notice agreeably to the order, as was “ made evident ” to him “ by due examination.” As the statute did not prescribe the mode of proof of giving personal notice, nor require that the same should be recorded, it made the court, before which the petition should be presented, the tribunal to judge of the sufficiency of such notice; and that judgment is binding on all parties interested, unless an appeal is taken from the decree. Here the judge has decided on the sufficiency of the notice. It is suggested that the party interested (the present demandant) was a minor, and so not affected by the order. But it not appearing that she had not a guardian, we do not feel bound to assume the fact that she was without a regular guardian, and that he was not notified. After ouch a lapse of time, the sufficiency of a notice, certified by a court competent to decide upon it at the time of receiving it, will not be questioned, without plenary evidence that the same was not in conformity to the requisitions of the statute, and that the party supposed to be aggrieved was not in a situation to avail herself of the right of appeal. On the subject of notice in the probate court, see the observations of the court in Marcy v. Marcy, 6 Met. 360.
It was further argued, that the oath taken by the administrator, prior to disposing of the estate, is not sufficiently recited in the proceedings, and therefore the sale under it cannot be justified. The St. of 1817, c. 190, §>11, prescribes the form of [363]*363the oath to be taken before the judge of probate, or before some justice of the peace, whose certificate thereof shall be returned to the judge of probate. In the present instance, the oath was taken before the judge of probate. The statute does not require, in express terms, that the same shall be recorded; and we are of opinion that the certificate of the judge of probate, that the administrator appeared before him and took the oath by law required of executors, administrators and guardians, previous to their selling real estate, to qualify him to sell the estate, and which certificate was recorded with the grant of the license, is satisfactory evidence that the oath required by law was duly administered, and that this objection, at this period of time, cannot avail the party raising it.
Another objection was taken to the deed, viz. that no evidence was offered to show that the administrator gave the notice required by the statute, prior to the sale. The Sts. 1783, c. 32, § 1, and 1788; c. 66, <§> 6, expressly require that thirty days’ public notice shall be given by the administrator, before making the sale, by posting up notifications of such sale in the town where the lands lie, as well as where the deceased person last dwelt, and in the two next adjoining towns, as also in the shire town of the county, or by a notification printed, three weeks successively, in such gazette or newspaper as the court that may authorize the sale shall order and direct. And the latter statute, and St. 1812, c. 24, also prescribe, that the affidavit of the administrator, or of some person employed by him to post up the notifications, taken before the probate court that directs the sale, and filed and recorded there, within eighteen months next following the sale, together with one of the original advertisements of the time, place, and estate to be sold, or a copy of it, shall be one mode of perpetuating the evidence; and also that the originals, or copies thereof from the register of the probate court, shall be admissible evidence in any court of law. This is one mode of proof, and is prescribed for the convenience of persons acting officially, in making sales of estates belonging to others. But it does not preclude the party from proving it aliunde by competent evidence. On the trial, the [364]*364tenant relied on the lapse of time since the making of the deed, as satisfactory evidence that the requisitions of the law were duly observed, by the administrator, prior to the sale, without offering any evidence from the probate office that notice of the posting was filed there, as provided by the statute, or attempt ing to prove, by any witnesses, that such notice was regularly given. As only twenty four years have passed since the making of the deed, those legal presumptions, which the law raises on the lapse of time, cannot, we think, be applied, in a case like the present, so as to dispense with the necessary proof that the legal formalities prescribed by the statute were complied with ; as the law has so strictly required that such notice shall be given, in order to the validity of a sale. To depart from the requisitions of the statute within the period of thirty years, and to dispense with all proof of notice, would not, we think, answer the ends which the law was designed to promote, namely, the integrity of sales made under orders of court, with which the rights of others are so peculiarly connected. And we think the ruling of the judge, in rejecting the deed for this cause, was correct.
The counsel for the tenant having moved for a new trial, on the ground of the discovery, since the trial, of one of the origi nal notices, of the administrator, of the intended sale, and of a witness who saw such notice posted in one of the places required by law, during the thirty days therein mentioned, the court grant the new trial, on the ground that such evidence is proper to be submitted to a jury; but without deciding whether proof of the posting of one such notice will be sufficient, without evidence that the other notices were also given.
In consequence of the granting of a new trial, no opinion is given upon a point raised, by the tenant’s counsel, at the argument before the court in bench, but not started at nisi prius, whether the demandant is not barred by St. 1817, c. 190, § 12, from maintaining this action, on the alleged ground that more than five years have passed since the disability of the demand-ant, by reason of her minority, has been removed, before commencing the suit. That point may be raised on the further [365]*365trial of the case, if the party shall think it advisable. On the ground of the newly discovered evidence, the verdict is so* aside, and a
New trial granted.