The opinion of the Court was drawn up by
Shepley J.— It appears, that James McDonald, deceased, was formerly the owner of the farm demanded in this action. And that it contained about thirty acres of land situated in the town of Gorham, and about fifteen acres adjoining thereto, situated in the town of Standish. The latter was called the W'ood lot and “ used for pasturing.” The demandant claims title under a sale made in October, 1841, by the administrator of the deceased. The tenants are a son of the deceased and his wife. They claim title to the thirty acres situated in the town of Gorham by a conveyance from the deceased to the wife of his son, bearing date on January 10, 1833. They also claim title to the whole by a conveyance from the deceased to the wife of his son, bearing date on April 12, 1836. And they claim title to the lot in Standish under a sale made on June 11, 1838, by a collector of taxes to Phineas Ingalls, and by a conveyance from him to the wife of the son, bearing date on July 5, 1841.
The presiding Judge instructed the jury, “ that if they were satisfied, that the land sold for taxes was connected with the homestead for purposes of fuel and pasturing, it should be considered as improved land, and not liable to be taxed and sold as non-resident land, unless the owners lived out of the State.” The act concerning the assessment and collection of taxes, St. 1821, c. 116, <§> 30, provided that “ the unimproved lands of non-resident proprietors, or improved lands of proprietors living out of the limits of this State,” might be advertised and sold in the manner therein prescribed to obtain payment of the taxes assessed upon them. By an additional act, St. 1823, c. 229, the assessors were authorized to assess improved lands to the tenants in possession or to the owner *406resident within the State or elsewhere. This provision follows. “And the collectors of taxes for the several towns and plantations within this State are hereby authorized to collect such taxes in the manner pointed out in the thirtieth section of the act to which this is in addition.” This provision, authorizing the sale of improved land taxed to persons residing within the State, appears ’ to have been overlooked ; and the jury were not therefore instructed as to the effect of the proceedings in making the assessment and sale of the lot of land in the town of Standish. The tenant will be entitled to have these matters considered and decided.
It is also insisted, that the return of the collector on the warrant, stating his proceedings in advertising and selling the estate, should have been received as evidence, that he had complied with the requisitions of the statute. By another additional act, c. 337, ■$> 8, it was provided, that the notice of sale required by the thirtieth 'section of the first act should be published three months prior to the time of sale. Then follows the provision, that the collector shall record and return his particular doings in the sale of improved lands of nonresident proprietors, or improved lands of proprietors living out of the State within thirty days after the sale. But this record and return are not required on the sale of improved lands of proprietors residing within the State. It would seem, that this distinction must have been designedly made; for it would have been more easy to have provided for such a return of all sales made under the thirtieth section, than to have specially limited it in the manner before stated. Whatever may be the law, considered independently of the provision of the statute, that would seem to create a distinction, which would by implication exclude such a record and return iai those cases not provided for in the statute.
It is contended also in defence, that the administrator of the father was not authorized to sell the estate under a license for the payment of his debts; because he neither died siezed of it nor had he fraudulently conveyed it, nor been colorably or fraudulently disseized of it. This argument assumes, that the *407language of the statute, c. 52, authorizing an administrator to convey all such estate, as the deceased “ had fraudulently conveyed,” must be limited to cases of premeditated fraud. The object of the statute was- to enable creditors, through the action of the administrator, to obtain their debts out of the estate in all cases, when they were by law entitled to consider the conveyances fraudulent as against them. And conveyances may be fraudulent as against them without proof of actual fraud, when made without, any valuable consideration received therefor. And there is no reason to believe, that those terms were used by the legislature with the intention to include actual only, and not constructive fraudulent conveyances. And how is it to be decided before the license is granted, and the sale is made, that the conveyance was or was not fraudulent? There is no mode provided by law; and the statute must of necessity be so construed, as to permit a license and sale, when the conveyances are alleged to be fraudulent, for the very purpose of having that matter legally decided. If the conveyance prove to be fraudulent as against creditors, the sale was authorized, and may be valid; and if not fraudulent, it was not authorized, and no title can be acquired under it. The other points may not arise again on a new trial, and it is not necessary to decide them.
Exceptions sustained, and a new trial granted.