This was a bill to compel the defendant to pay the sum bid by him for certain lots sold by plaintiffs, as executors of Joseph L. Folsom, deceased, under an order of the Probate Court. The Court below rendered a decree for the plaintiffs, and the defendant appealed.
The first point made by the defendant is that the sale was not binding because there was no subscribing of the contract by the plaintiffs or their agent. The fate of this objection depends upon the question whether sales by executors and administrators, under our probate system, are judicial or ministerial. If judicial, the contract need not bo in writing, subscribed by the parties. The Statute of Frauds does not apply to such a case, the sale being made by the Court.
The administrator, or executor, is under the control of the Probate Court. In the sale of property he is the moving party-in behalf of creditors, but acts subject to the orders of the Court.
The order of the Probate Court directing the sale of the real estate of the deceased, is a judicial act. It is, in substance, similar to a decree in chancery for the sale of specific property. The order of the Probate Court may not, in specific terms, describe the exact property to be sold; but it still has reference to the property already described upon its records, and is therefore, in effect, the same as a decree in chancery. The administrator, or executor, in making the sale, does the particular act which the order of the Court itself directs him to perform. The Court determines that specific property must be sold, and, by its order, directs the administrator to sell the same according to law. The mode of. the sale is pointed out by express statute. When sold, the report of the sale is made by the administrator to the Court, and unless confirmed by order of the Court there is no binding sale, and no title can pass to the purchaser. To be valid, the sale must first be ordered by the Court, and afterwards confirmed by it. The order for the sale, and the order of confirmation, are both judicial acts; and these two concurring, make the sale a judicial sale, and, therefore, not within the Statute of Frauds. In making the sale itself, the administrator acts for the Court and under its orders. He receives the bids and returns them like a Master in Chancery, into the Court for its consideration. The Probate Court is the guardian of tlnyright-s of all parties interested in the estate, and acts for all. • /
But, in a judgment at law, there is no direction byjfie Court itself that any specific property shall be sold. /Judgment is *196given for a specified sum, for which execution may issue, and such property of the defendant sold as the sheriff may levy upon. What particular property will bo sold, depends upon the ministerial act of the sheriff; and the sale is made by him and the title passed to the purchaser, without the action or confirmation of the Court.
It is true that there is a difference in the mode of enforcing a sale ordered by a Court of Chancery, and that of a sale by order of the Probate Court. But this difference in the mere mode does not affect the character of the sale itself. When a sale is made under a decree in chancery, the bidder may be committed for contempt if he refuses to comply with his bid. (Woods v. Mann, 3 Sumner, 326.) The Court can summon all parties interested and settle their conflicting claims to the property itself.
If we concede that the Probate Court cannot commit the bidder for contempt, when he fails to comply with his bid, this does not change the character of the sale. PTor does the fact that the Probate Court cannot settle conflicting claims to the property have any such effect, for the reason that the Court can only order a sale of the interest of the deceased.
The counsel for defendant has referred us to the case of Smith v. Arnold, (5 Mason's R., 414.) In that case, Mr. Justice Story held that a sale by an administrator, under the laAv of Rhode Island, was not a judicial sale. But the principle upon which the decision rested, and the reason given by the Judge, sustain the vieAv we have taken.
“In the case of an administrator, the authority to sell is, indeed, granted by a Court of Law. But the Court, Avhen it has once authorized the administrator to sell, is functus officio. The proceedings of the administrator never come before the Court for examination or confirmation. They are matters in pais, over Avhich the Court has no control.”
There is doubtless some conflict of authority in reference to the character of probate sales of real estate. But under oug.» system, Avhich requires both the order of sale and the confirmation by the Court, to make the sale valid, Ave think there can be no reasonable doubt. These sales are considered judicial by the folloAving authorities: 2 How. U. S., 312; 12 How. U. S., 386; 4 Barr, 172; 1 Janes, 305; 1 La. An. Rep., 200; 4 Texas, 437; 9 Ala., 300. The case of Abel v. Calderwood, 4 Cal. Rep., 90, is not opposed to this view.
The second point made by the counsel of defendant is that the defendant never bid for two of the lots included in the alleged sale.
It appears that these two lots were struck off to another bidder, who failed to comply with the terms of the sale; and, that his name was erased on the list of the auctioneer, and the de*197fendant wrote his own name in the place of that of the first bidder. This was done about three days after the bidding, and before the report of the sale was made to the Court and confirmed.
We can see nothing in this objection. The mere substitution of one purchaser for another cannot affect the validity of the sale. The order directing the sale, and the order confirming it, give vitality to the purchase. These orders are both required to be recorded. (§ 171.)
The third objection made by the defendant is, that the plaintiffs advertised to sell as and for a good title, and that the title was defective. The notice of sale stated that the executors, being thereto authorized by order of the Probate Court, would sell to the highest bidder, at a time and place stated, “the within described property, being part of the real estate of the said Joseph L. Folsom, deceased,” describing the property, and stating the terms of sale.
The only effect of an administrator’s deed is to convey to the purchaser the title of the deceased. Such a deed can contain no warranty of the title. The purchaser must know the law. The notice was of a probate sale. The bidder, therefore, knew the character of the sale, the effect of the deed, and was bound to examine the title for himself. The language of the notice put him upon his guard. In these sales, caveat emptor is the rule. (4 Conn., 513; 13 S. & M., 101; 9 Ala., 299; 5 Black., 277; 4 Barr, 172; 9 Texas, 553; 3 Watts & S., 446.)
The fourth and last objection made by the appellant is to the form of the decree. The price of the property purchased by the defendant amounted to fifteen thousand eight hundred and fifty dollars. The defendant held a mortgage upon the lots, and the amount of his mortgage exceeded the amount of his bids. The mortgage-debt was drawing two and a half per cent, interest per month. By the terms of the sale, one-half of the purchase-money was to have been cash in hand, and the remainder in ninety days, with interest from the date of the sale, at the rate of one per cent, per month. The bidder had the privilege to pay the whole sxim on the day of sale. The decree of the Court directed the entire amount to be credited upon the mortgage, as a payment made on the day of sale. This we think was an error.
The bidder who elected to pay promptly, was entitled to a deduction for the interest on one-half the purchase money. The defendant’s mortgage-debt was drawing two and a half per cent, per month, and the proceeds of the sale were dedicated to the payment of his debt. But, by the terms of the sale, he was compelled to give more for the property than he otherwise would have been. The executors gave him property in place of cash, but they charged him cash instead of credit prices for it, when, at the same time, the sale was partly on credit.
*198The decree must be modified, and the case remanded to the Court below, with directions to modify the decree in accordance with this opinion, without costs on appeal.