such case, destroys the lien of the attachment and the attached property passes into the hands of the administrator, to be administered on in due course of administration. Myers v. Mott, 29 Cal. 359. Where during the pendency of an action against joint obligors, one of them, prior to judgment, dies, and the administrator is proceeded against by order of court instead, the judgment order must be several, one against the survivors de bonis propiis, and one against the administrator de bonis testatoris. Bank of Stockton v. Howland, October Term, 1871; Pac. Law Rep. vol. III, p. 14. Judgment against executor.-A judgment against an executor for a demand against the testator should direct that the same be paid in due course of administration. Racouillat v. Sainsevain, 32 Cal. 376. The only object of a judgment against an administrator is to establish a valid demand, to be paid in due course of administration. Ibid. And see Schadt v. Heppe, January Term, 1873; Pac. Law. Rep. vol. V, p. 30, cited under section 1465, ante. of the mort may pur lands. SEC. 1570. (2186.) At any sale, under order of the pro- The holder bate court, of lands upon which there is a mortgage or gage or lien lien, the holder thereof may become the purchaser, and his chase the receipt for the amount due him from the proceeds of the His receipt sale is a payment pro tanto. If the amount for which he purchased the property is insufficient to defray the expenses valid payand discharge his mortgage or lien, he must pay to the ment. court or the clerk thereof an amount sufficient to pay such expenses. See authorities cited under preceding section. to the amount of his claim a tor and liable for in sale. SEC. 1571. (188.) If there is any neglect or miscon- Administraduct in the proceedings of the executor in relation to any executor sale, by which any person interested in the estate suffers misconduct damage, the party aggrieved may recover the same in an action upon the bond of the executor or administrator, or otherwise. (a) Statutes of 1851, p. 472, § 188. See Townsend v. Tallant, 33 Cal. 45, cited under section 1554, ante. SEC. 1572. (2189.) Any executor or administrator who fraudulently sells any real estate of a decedent contrary to (a) NOTE.-Act in relation to Probate Sales.-Passed April 2d, 1866. [Statutes 1865-6, p. 824.-Took effect on passage.] $1. In all cases when real estate has been sold in this State under the order of the probate courts of the several counties to purchasers in good faith, for a valuable consideration, and defects of form, or omissions, or errors exist in any of the proceedings, such sales are hereby ratified, confirmed, and made valid and sufficient in law to transfer the tile of the property sold: provided, however, that this act shall not affect in any manner rights acquired prior to its passage, by vendees, grai tees, or mortgagees, who claim interests in or liens upon such property under heirs or devisees adversely to such probate sales, nor to sanction in any manner cases of actual fraud. Fraudulent sales. Limitation of actions sale, etc. or otherwise than under the provisions of this chapter, is liable in double the value of the land sold, as liquidated damages, to be recovered in an action by the person having an estate of inheritance therein. Statutes of 1851, p. 472, § 189. See Boyd v. Blankman, 29 Cal. 19, cited under section 1576, post. Fraudulent representations made by an administrator at the sale of property of the estate, respecting the character and soundness of the property, by which the purchaser is misled, entitle the latter to a recision of the contract, or an abatement of the price contracted to be paid. Keyans v. Allcorn, 9 Texas, 25. SEC. 1573. (190.) No action for the recovery of any for vacating estate, sold by an executor or administrator under the provisions of this chapter, can be maintained by any heir or other person claiming under the decedent, unless it be commenced within three years next after the sale. An action to set aside the sale may be instituted and maintained at any time within three years from the discovery of the fraud or other grounds upon which the action is based. Statutes of 1851, p. 472, § 190. Where a party desires to avail himself of the statute, which provides that no action for the recovery of any estate, sold by an executor or administrator, shall be maintained by any heir or other person claiming under the deceased testator or intestate, unless it be commenced within three years next after the sale, he must plead it. The objection, that the action is barred, cannot be taken to the admissibility of evidence when the statute has not been pleaded. Meeks v. Hahn, 20 Cal. 620. Who may take advantage of invalidity of sale, and how.-When an administrator's sale is invalid and the administrator has settled his final account and been discharged, the heir, and not an administrator de bonis non, is the proper person to take advantage of the invalidity. Hart v. Horton, 12 Texas, 285. Nor is it necessary to consider the cases in which the acts of an administrator, though under a void grant, if done in the due course of administration, shall not be void. Such, for instance, as the sale of property in payment of funeral expenses, debts, etc. There an administrator or executor being compelled to pay, the sale shall be indefeasible. Ibid. It may be proved in a collateral proceeding, that the probate court had no jurisdiction; for example, that the person was not dead, or that the estate had been fully administered and closed; but not that the court acted irregularly or erroneously, upon a subject matter properly within its cognizance. Fisk v. Norvel, 9 Texas, 13. It does not appear to have been necessary by the Spanish law to make heirs parties in order to divest the interest of an estate. Keyans v. Allcorn, 9 Texas, 25. Limitation includes all sales.-The sales mentioned in the one hundred and ninetieth section of the probate act include and comprise all sales, whether valid, voidable or void, made by probate courts of real estate belonging to persons who have died since the passage of the probate act. Harlan v. Peck, 33 Cal. 515. See, also, Townsend v. Tallant, 33 Cal. 45, cited under section 1576, post. H. died, seized of lands, in 1850. In 1856, his administrator made a void sale to K., who, nevertheless, remained in possession adversely and continuously twelve years thereafter, and K. now relies on section 190 of the probate act to bar present action for recovery of land. Meeks v. Kirby, January Term, 1872; Pac. Law Rep., vol. III, p. 93. This act provides that actions for recovery, etc., by heirs or others interested, for lands sold by executors, etc., must be commenced within three years next after the sale: Held, that this act applies to void sales. Section one hundred and ninety-one exempts, however, from the provisions of section one hundred and ninety minors and others under legal disability; and it is claimed that plaintiff was under legal disability because the administrator of Harlan could alone bring the action; that the heirs could not, pending the administration, nor could plaintiff, who is grantee of H.'s heirs: Held, plaintiff's disability, not such as contemplated by section one hundred and ninety-one, which means someting personal to the party and not merely that one has a cause of action not invincible. Ibid. cases pre ceding sec tion not to apply. SEC. 1574. (191.) The preceding section shall not To what apply to minors or others under any legal disability to sue at the time when the right of action first accrues; but all such persons may commence an action at any time within three years after the removal of the disability. Statutes of 1851, p. 472, § 191. See Meeks v. Kirby, January Term, 1872, cited under preceding section. sale to be SEC. 1575. ( 192.) When a sale has been made by an Account of executor or administrator, of any property of the estate, returned. real or personal, he must return to the probate court, at its next term thereafter, an account of sales, verified by his affidavit. If he neglects to make such return, he may be punished by attachment, or his letters may be revoked, one day's notice having been first given him to appear and show cause why such attachment should not issue or such revocation should not be made. Statutes of 1851, p. 472, § 192. See section 1553 to 1555, ante, and cases cited there. The mere failure of an administrator to return a sale within the time prescribed by statute, where no injury to estate or purchaser appears to have resulted from the delay, is not good ground for setting aside the sale. Brown v. Hobbs, 19 Texas, 167. End of Section 1576, Page 160. If a person procures himself to be appointed administrator of an estate, and at a sale of the property of the estate purchases the same through a third person, who pays no money, and agrees to hold the title for the administrator, the sale is a fraud on the heirs, and such third person, and all who buy from him with notice, hold the property in trust for the heirs. Scott v. Umbarger, 41 Cal. 410. court, buys the land of the estate through another person, the sale is not void, but only voidable at the election of the heirs or other persons interested in the estate, who may have the sale set aside, and the administrator declared a trustee. Boyd v. Blankman, 29 Cal. 19. In such case, the deed of the heir conveys the equitable title, and his deed is evidence of his intention to disaffirm the sale. Ibid. If an administrator becomes a purchaser, through another person, of land of the estate, sold by him under an order of the probate court, the heir retains the equitable title, and his deed conveys such equitable title, while the legal title is vested in the administrator who holds it in trust. Ibid. See sections 1573 and 1574, ante. Where an administrator purchases land at a judicial sale, made to satisfy a claim in favor of the estate which he represents, and causes the purchase money to be credited on the claim, the purchase enures to the benefit of the estate, and after the close of the administration, the heirs may recover the land, notwithstanding the administrator may have accounted for the purchase money in the final settlement of his accounts, and sold the land to a third person having notice of the facts. McCoy v. Crawford, 9 Texas, 353. A purchase made by an administrator at his own sale, is fraudulent in law, and void, and it is not error so to instruct a jury. Hardy v. De Leon, 5 Texas, 212. CHAPTER VIII. OF THE POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS, SECTION 1581. Executors to take possession of the entire estate. 1582. Executors may sue and be sued for recovery of property. 1585. Surviving partner to settle up business. Interest therein to 1586. Actions on bond of executor or administrator, may be brought 1587. What executors are not parties to actions. 1588. May compound. 1589. Recovery of property fraudulently disposed of by testator. possession of the entire SEC. 1581. (194.) The executor or administrator must Executors take into his possession all the estate of the decedent, real to and personal, and collect all debts due to the decedent, or estate. to the estate. For the purpose of bringing suits to quiet, title, or for partition of such estate, the possession of the executors or administrators is the possession of the heirs or devisees; such possession by the heirs or devisees is subject, however, to the possession of the executor or administrator, for the purposes of administration, as provided End of Section 1581, Page 161. Administrator to take possession of entire estate. Estate of McQueen, 44 Cal. 589. See generally: Chapman v. Holister, 42 Cal. 463. Est. of Simmons, 43 Cal. 551. Dee souliva བཙལཔདཔལ་ possession of estate. Rights of executor.—An executor holds the money received by him from the proceeds of the estate in a fiduciary capacity for the use of |