The principal point in the present case is that as to the validity of the sale of the land in question, by reason of the fact that the guardian, who was authorized to make such sale on account of his wards, was himself indirectly, but really, the purchaser. The report shows such to have been the case; and we have no doubt that the guardian, making sale under license of the court of probate, for the benefit of his'wards, stands in the same relation, in this respect, as an administrator, and afilie open to the objection that an agent or trustee to make sale of real estate cannot himself be the purchaser.
But such sale is not absolutely void. The estate passes by such conveyance, liable however to be defeated by the heirs, or wards, as the case may be. But it can only be avoided as against the guardian, or one claiming under him with knowledge of the circumstances of the sale, or a purchaser who has not paid a full and valuable consideration. If, before it is avoided by the heirs, the estate has been transferred by such purchaser, though he may have been an administrator, to a subsequent bona fide purchaser, upon a good and sufficient consideration, without notice that it had been bought at the administrator’s sale, for the administrator’s benefit, such grantee will hold the same as against the heirs. Blood v. Hayman, 13 Met. 236. Had the conveyance by Morrill to Munroe been an absolute one, the grantee would therefore clearly have acquired a good title as against the petitioners.
*146In regard to the respondent’s title under the sale on execu« Mon, it does not appear that the execution under which the sale was made was ever returned to the clerk’s office; nor is there any evidence as to its loss, or any thing to show that any certificate was ever indorsed thereon by the officer of his doings on the same. In the present state of the evidence upon this point, the sale of the equity of redemption of Morrill is not in our opinion, sufficiently shown by any competent legal evidence, to authorize us to hold that there is a valid title in the defendant from this source.
The further inquiry is as to the effect of the conveyance in mortgage by Morrill to Munroe. As to this, we have no doubt that it would have the like effect in passing a valid title, as respects the avoidance by heirs or wards, as an absolute conveyance. Robbins v. Bates, 4 Cush. 106. In either case, the legal estate has passed to a third person; and if bona fide, and for a valuable consideration, he will hold it against the hens or wards, as the case may be.
It is then however urged that this mortgage has been discharged. If so, and if by payment of the debt secured by the mortgage, or other mode, the mortgagor has removed the same, or if the mortgagee has by his deed of quitclaim released the same to him, then of course it cannot be set up as a valid outstanding title against the petitioners. It is not however contended that this mortgage has ever been paid by the mortgagor, or that any release of the same has ever been given by the mortgagee. The only discharge of this mortgage, relied upon, results from a quitclaim given by the mortgagee to Nichols, Winn & Co. on the 17th of September 1844, they being, as was supposed, the purchasers of the equity of redemption, and intending to remove the mortgage for their own benefit. Had this been a deed from the mortgagee to Morrill, releasing these premises, it might have operated to discharge the mortgage. But it was a quitclaim to third persons, having in fact no previous connection with the title, It was therefore a mere transfer of the interest of the mortgagee in that portion of the mortgaged premises, so far as it could be transferred by an instrument in that. form.
*147The further objection is urged that the quitclaim being of only one of several parcels mortgaged to Munroe, it was not competent for him to assign the mortgage as to such parcel, and so nothing passed by the deed. If this were so, it would not avail the petitioners, or remove the mortgage as an outstanding title. If the parcel, the interest in which was released to the respondent, passed to him by force and effect of that deed; or if, like the case of many inoperative deeds, the legal title remained in Munroe, merely because it was incompetent for him to convey to a third person his legal interest in a part only of the mortgaged premises, the petitioners would still be barred by this mortgage.
A further objection taken to the validity of the sale by the guardian, under license from the probate court, is that there was no sufficient notice given of the time and place of the sale. We do not perceive any sufficient ground for this objection. “ The Hardy lot, containing about twenty three acres,” which is the lot in controversy, was advertised under that form of description. Looking at the whole advertisement, it appears that it was in Woburn; that it was the real estate belonging to the children of Charles Wyman, late of Woburn; that the sale would commence at the deceased’s dwelling-house the 5th of September at 12 M.; with the addition, that further particulars would be made known at the time and place of sale. We do not see any sufficient reason therefore for setting aside the sale on that ground.
The result is, that it was too late for the wards to avoid this conveyance by the guardian, at the time they gave notice to that effect, in June 1852. Partition refused.