Opinion on motion of rehearing. — Every proposition now urged m support of the motion for rehearing was considered by us in the decision of the case. We then and still regard the case of Conkrite v. Hart as overruled by that of Taylor v. Snow.
At common law, a sale made after the death of the defendant in the judgment was only voidable, and not void. This, so far as we are informed, is the rule in all the other States, and the only reason why such a sale is considered void as to the executor or administrator in this State is on account of the provisions of the probate law, which prescribes how, by whom and in what order the debts of the decedent shall be paid. Our probate laws only apply when the administration has been opened upon the estate. Where no administration is or can be opened upon the estate, the right of the heirs, as well as the creditors, must be determined by the general principles of law.
With or without administration, the heir takes the inheritance burdened with the debts of the ancestor. If there is an administration, the probate laws prescribe the creditor’s remedy; but in the absence of an administration, he is remitted to the general prinples of law applicable to such cases.
In this case, the record not only shows that there has been no administration, but that, from the lapse of time, none could now be had. Therefore the provisions of the probate laws could have no application to this case.
As remarked in the former opinion, the property ‘was applied to *423the payment of the ancestor’s debts, under the forms law, but not in the manner prescribed. As to the heir, who was only entitled to the property after the payment of the debts with which it was burdened, such an application was irregular and voidable, and could be vacated and set aside by a direct proceeding instituted by Mm within a reasonable time. But if an administration had been opened upon the estate subsequent to the sale, that would have put into operation the probate law, and it would relate back to the death of Logan, and would take hold of his estate in the very condition in which he left it; and hence the sale which, as to the heir, was only irregular and voidable, would, as against the administrator, be of no effect.
The fact that the purchaser at the sheriff’s sale knew at the time that the defendant in the judgment was dead would not affect the question, nor is it essential how or in what manner the fact of death is declared to him. The sale would be irregular and voidable, but not void, whether he did or did not have knowledge of the defendant’s death at the time of the sale.
We award that the motion for rehearing be refused.
Report of Commissioners of -Appeal examined, their opinion adopted, judgment reversed and cause dismissed.
Gould, C. J.