dissenting. — -On one question I dissent in this case ; the extent of the relief to which complainant is entitled. If there had been no sale by the administrator, of intestate’s interest in the lands in controversy, no one will den y that Mrs. Jones would have been entitled to homestead, or its value in commutation. This, on the very familiar principle, that no matter how fraudulent the mortgage may have been, which Jones, the intestate, executed, to the extent of the homestead interest it did the creditors no harm. They had no right to subject that to their demands, whether retained by the husband, or fraudulently conveyed by him. If the mortgage was fraudulent, to this extent it was not fraudulent against creditor ; for they had do interest in that part of the tract, or right to subject it to their demands. — Fellows v. Lewis, 65 Ala. 343.
There is still another reason why I think my brothers have erred in their judgment in this cause. Under their ruling, Mrs. Bolling recovers the entire proceeds of the land, including the homestead commutation. Now, there is no pretense that the administrator did less than his duty in selling the intestate’s interest in the land. That interest was the equity of redemption, more or less valuable, as the mortgage debt fell below, or equalled the value of the lands. The equity of redemption was all he could sell; for standing in the shoes of the intestate, and clothed only with the right he could have asserted, he could not assail tlie mortgagee for fraud, no matter how fraudulent it may have been. He was, equally with the intestate, estopped from setting up the fraud in avoidance of the mortgage. — 1 Brick. Dig. 664, § 358; 1 Ib. 16, § 45; 1 Ib. 959, § 632. Thus, the administrator could sell only the equity of redemption, and he did sell that under the order of the probate court, and the widow became the purchaser. It is not charged that that proceeding and sale were irregular, *518or fraudulent. She then acquired all the interest which the intestate owned at his death. Did she buy her homestead exemption ? Shé already owned that. The entire tract was sold, why ? Not because it was subject to administration, nor because the entire proceeds would be assets for the payment of debts. They would not be. The homestead could not be carved out by metes and bounds, and the entire tract was sold, as the only means of ascertaining and separating the assets of the estate from the homestead exemption. Only the residuum above the homestead was assets of the estate, and that was the sum, the entire sum, the administrator would be chargeable with as assets. She did not buy her homestead ; but the effect of the transaction was a purchase of that part of the land, which was in excess of the value of the homestead. As we have said, she already owned the homestead exemption. Suppose a stranger had purchased, and received a conveyance. Would he not, by virtue of the purchase, have acquired the widow’s exempt homestead right ? And as to it, would it not be, in effect, a purchase from the widow herself ? The money would be payable, and paid to her, and the corresponding interest in the land would, by virtue of the sale, pass out of her, and vest in him ? And would not the interest, thus acquired, become his, not as derived from the estate of the intestate, but as purchased from the widow ? And suppose, in such case, a creditor of the intestate should proceed to condemn the lands for the payment of intestate’s debts, on account of the fraud, such intestate had committed in the execution of a former mortgage, could he condemn the homestead exemption, which had been purchased and paid for by a stranger, and which had never been subject to intestate’s debts ? Would not such purchaser have the legal title, and a paramount equity ? And would not an attaching creditor, seeking to subject the land, be confined in his recovery to the excess above the value of the homestead ? That was all he could rightfully claim before the administration sale. Could a rightful and fair sale made by an administrator, and an honest purchase by a stranger, increase the equities of a creditor, whose only right was to pursue assets the administrator could not claim ; namely, the interest sought to be conveyed by the fraudulent mortgage? I confess myself unable to perceive why the fact, that the widow became the purchaser should subject her to the forfeiture of her homestead, when a purchasing stranger certainly would not have been mulcted. I hold that the five hundred dollars commutation of the exempt homestead, should be paid to Mrs. Jones out of the proceeds of the lands; and in doing *519so, I leave Mr. Bolling precisely where he would have stood, if there had been no administration sale.
• Other questions may arise under proceedings like the present. A fraudulent mortgage may be made, in amount much less than the value of the property mortgaged. Suppose the mortgagor dies, and it becomes necessary to sell his interest in the lands for the payment of debts. Now, as to such residuum of interest in the deceased mortgagor, his personal representative is the proper person, and the only proper person, to obtain an order, and sell it. It is his duty to do so, and he commits a devastavit if he neglects it. He makes a sale, and an innocent purchaser pays his money for this equity of redemption. Suppose afterwards a creditor, as he may do, proceeds in equity to subject the lands to the payment of his demands. What interest can he condemn ? Is it the entire fee, or only that interest which the personal representative could not and did not sell —namely, the mortgage interest ? True, the sale made by the administrator is what is called a judicial sale, and the rule of caveat emptor applies. But, the second, or chancery sale, is equally a judicial sale, and the same rule applies to it. I ask these questions, without intending at this time to answer them.