EXECUTORS AND ADMINISTRATORS. EPITOME OF CASES. Sec. 326. Powers of executors and administrators. Where there are three executors and the power to act is conferred on a majority, a contract for sale of land signed by one only is not binding, and may be repudiated by the vendee. Dodge v. Tullock, 110 Mich. 480 (68 N. W. Rep. 239). Where the best interest of an estate will be promoted thereby an administrator may rent the real estate belonging to the estate and apply the rents to the payment of the interest accruing upon a mortgage thereon. Patapsco Guano Co. v. Ballard, 107 Ala. 710 (19 So. Rep. 777; 54 Am. St. Rep. 131). Sec. 327. Rights as to possession and rents of decedent's realty. Under Ga. Code, § 486, an administrator cannot recover from an heir possession of the lands of his decedent unless such administrator shows that he has been wrongfully deprived of the possession of such lands or that it is necessary for him to have possession for the purpose of paying debts or making a proper distribution. Holt v. Anderson, 98 Ga. 220 (25 S. E. Rep. 496). Construing Hill's Ann. Ore. Laws, § 1120, providing that "the executor or administrator is entitled to the possession and control of the property of the deceased, both real and personal, and to receive the rents and profits thereof until the administration is completed, or the same is surrendered to the heirs or devisees by order of the court or judge thereof," it is held that the statute does not divest the heirs of a decedent of their title to his real estate and unless the administrator takes actual possession of it, they may maintain ejectment therefor, and the statute of limitations will run against them during the administration. Clark v. Bundy, 29 Ore. 190 (44 Pac. Rep. 282). See opinion for exhaustive review of authorities. A lessor's administrator may sue on the covenant of the surety of the lessee to pay the rent. Walsh v. Packard, 165 Mass. 189 (42 N. E. Rep. 577; 52 Am. St. Rep. 508). Denton v. Sec. 328. Sale to pay debts. Lands of a decedent may be sold to repay moneys advanced by an administrator to pay valid claims against the estate. Denton v. Tyson, 118 N. C. 542 (24 S. E. Rep. 116). The real estate of a decedent should not be sold to pay his debts until his personal estate has been exhausted; and under Va. Code, § 2652, it is held that it is premature to decree a sale of the realty before adjudicating the claims of the creditors, and their respective priorities, in order to ascertain the precise amount chargeable upon such realty. New's Ex'x v. Bass, 92 Va. 383 (23 S.E. Rep. 747). Where there is no immediate necessity for selling a decedent's lands to pay debts, an order of sale should not be made until a pending suit contesting the validity of a devise affecting the use of certain lands for that purpose has been determined. In re Smith's Estate, 177 Pa. St. 17 (35 Atl. Rep. 339). Lands conveyed by a decedent in his lifetime in good faith by an unrecorded deed cannot be sold by his executor to pay debts under Mass. Pub. Stat., ch. 134, § 2, as land "liable to attachment or execution by a creditor of the deceased in his lifetime." Edwards v. Barnes, 167 Mass. 205 (45 N. E. Rep. 351). Ind. Rev. Stat. 1894, § 2486, which subjects to the payment of the decedent's debts "all lands and interest therein which the deceased in his lifetime may have transferred to defraud his creditors," does not authorize the sale of such lands for that purpose in proceedings to which the alleged fraudulent grantees are not parties. Cray v. Wright, 16 Ind. App. 258 (44 N. E..Rep. 1009). In construing Pa. Act, Feb. 24, 1834, that no debts of a decedent, unless secured by mortgage or judgment, etc., shall remain a lien on his lands, after his death, longer than five (now two) years, unless an action for the recovery thereof be commenced and duly prosecuted against his heirs, executors or administrators within that period, or unless a copy or particular written statement of any bond, covenant, debt, or demand, when the same is not payable within that period, shall be filed in the office of the prothonotary of the county where the real estate to be charged is situate, it is held that the proceeds of land arising from a sale of land made after the expiration of such five years cannot be applied to the payment of claims of creditors who have not complied with this statute. In re Emerick's Estate, 172 Pa. 191 (33 Atl. Rep. 550). Sec. 329. Sale to pay debts-Practice. A decree ordering the sale of a decedent's realty to pay a mortgage debt thereon is not void for failure to properly describe the land, where the mortgage, and other portions of the probate records connected with the estate show an accurate description. Crawford v. McDonald, 88 Tex. 626 (33 S. W. Rep. 325). Where the lands are subject to a mortgage which has been foreclosed since the decedent's death and the administrator obtains an order to sell the same free from incumbran ces, the moneys realized therefrom must be first applied to the payment of the mortgage lien including the costs of the foreclosure proceedings. Connecticut Mut. L. Ins. Co. v. Hobbs, 14 Ind. App. 661 (43 N. E. Rep. 452). In Indiana it is held that an order for the administrator to mortgage his decedent's lands to raise money to pay his debts can be made upon a petition filed by the administrator to sell lands for that purpose. Edwards v. Baker, 145 Ind. 281 (44 N. E. Rep. 467). Where the right of a creditor to subject lands of his deceased debtor to the payment of debts is dependent upon the widow's having failed to elect to reject the provision made for her by the will of the deceased debtor and to take under the law as provided for by Ind. Rev. Stat. 1894, § 2666, the creditor must establish this fact. Archibald v. Long, 144 Ind. 451 (43 N. E. Rep. 439). Proceedings to sell land by a foreign executor, otherwise regular, are not rendered void by the failure of the court to require him to file an authenticated copy of his appointment or record the will as provided for by Ind. Rev. Stat. 1894, §§ 2763, 2519. Baily v. Rinker, 146 Ind. 129 (45 N. E. Rep. 38). The sale is not complete until confirmed by the court and deed delivered to the purchaser. In re Emerick's Estate, 172 Pa. 191 (33 Atl. Rep. 550). Particular summons held irregular but not void. Piercy v. Watson, 118 N. C. 976 (24 S. E. Rep. 659). Ala. Code, § 2112, applied-sufficiency of petition to confer jurisdiction. Moore v. Cottingham, 113 Ala. 148 (20 So. Rep. 994; 59 66 Am. St. 100). In Louisiana a probate sale of succession Sale by a tutrix. Sec. 330. Sale to pay debts-Parties. Purchasers from the heirs or devisees of lands of a decedent prior to the commencement of proceedings by his administrator to sell the same to pay debts are necessary parties. Robertson v Wheeler, 162 Ill. 566 (44 N. E. Rep. 870). A devisee whose interest is contingent upon the testator's child dying without issue and upon a failure of the administratrix to sell the property as authorized by the will is not a necessary party to a proceeding to sell the land to pay debts. New's Ex'x v. Bass, 92 Va. 383 (23 S. E. Rep. 747). In North Carolina it is held that the creditors of a decedent are not proper parties plaintiff with the personal representative in proceedings to sell land to S make assets. Dickey v. Dickey, 118 N. C. 956 (24 S. E. Rep. 715). Sec. 331. Notice of sale. An executor's sale of his decedent's realty pretended to have been made under an order of court, which is void because of non-compliance with the statute in regard to giving notice, is not remedied by the fact that such executor had power under the will to sell without an order of court. Hellman v. Merz, 112 Cal. 661 (44 Pac. Rep. 1079). Where a statute (Mo. Rev. Stat. 1889, § 147) requires the giving of a certain notice of the filing of a petition to sell decedent's lands, sale had in pursuance of an order made without the giving of such notice is void, and cannot be cured by subsequent notice. Hutchinson v. Shelly, 133 Mo. 400 (34 S. W. Rep. 838). Devisees of a decedent are not entitled to notice of the report of an administrator's sale to pay debts and application for confirmation thereof. Moore v. Cottingham, 113 Ala. 148 (20 So. Rep. 994; 59 Am. St. Rep. 100). Where a decree directing an executor to sell lands is collaterally attacked for want of notice to the heirs and legatees the complaint must allege what the record shows as to notice. Bailey v. Rinker, 146 Ind. 129 (45 N. E. Rep. 38). Under Cal. Code Civ. Proc., § 1549, which requires a notice of a private sale of a decedent's realty to be published for two weeks successively next before the day on or after which the sale is made, it was held that a publication of a notice of a sale from the 5th to the 19th day of the month which was to occur on the 21st day was insufficient, and a sale thereunder was void. Hellman v. Merz, 112 Cal. 661 (44 Pac. Rep. 1079). 332. Title and rights of purchaser at an administrator's sale. An administrator's sale made under a decree of a probate court is a judicial sale in which there is no warranty of title and to which the rule of caveat emptor applies, and the administrator cannot by any agreement or arrangement with the purchaser or the hoider of the mortgage on the lands change the character of the sale in these respects. Prior v. Davis, 109 Ala. 117 (19 So. Rep. 440). A purchaser at an administrator's sale regularly and legally made acquires a good |