It has been decided by this court, that
The probate of wills and the grant of letters of administration, by the probate courts of this State during the late war between the States, were perfectly legal and valid; and' that a subsequent grant of letters, without a revocation of those already granted, would be a nullity, there being no .vacancy in the administration. And the contrary doctrine, as held in Bibb (& Falkner v. Avery, 45 Ala. 691, was expressly repudiated in Nelson, Adm’r, v. Boynton, 54 Ala. 368.
Under this principle, the appointment of Spence as administrator of the estate of Kellam was valid, though made in the year 1864, during the prevalence of the late war. And there being a legal and subsisting administration, the probate court possessed no jurisdiction to appoint Oostley as administrator of the same estate, without first creating a vacancy in the administration by the revocation of the letters already gi’anted to Spence, -or a vacancy occuring by death, resignation or removal. The appointment of Oostley, without such previous vacancy, must be held to be absolutely void, and being void, as opposed to voidable merely, it can be collaterally assailed.- — McDowell v. Jones, 58 Ala. 25; Matthews v. Douthitt, 27 Ala. 273; Rambo v. Wyatt, 32 Ala. 363; Gray’s Adm’r v. Cruise, 36 Ala. 559.
It may be true that, in a collateral proceeding, such vacancy will be presumed to exist from the grant of administration de bonis non, in the the absence of any recital or evidence of the fact, but this presumption can not prevail where there is evidence, as in this case, showing affirmatively that there was no vacancy at the time of the second appointment. — Sims v. Waters, 65 Ala. 442; Ikelheimer v. Chapman, 32 Ala. 676; Gray v. Cruise, 36 Ala. 559.
It follows from these principles, that the sale of the real estate in controversy, which was attempted to be made by *447Oostléy, and at which the appellee, Allen, became the purchaser, w-as void as being without authority, and conferred no title. Hooper, Adm'r, v. Scarborough, 57 Ala. 510. The legal title still remained in the heirs of Kellam, and will support an action of ejectment. Nor even were they sui juris, could the principle of estoppel be invoked against them in a court of law by reason either of their silence, or of the equitable consideration that the proceeds of sale went to their use, or that of the estate. — Kelly v. Hendricks, 57 Ala. 193; Robertson v. Bradford, at present term.
It is no defense to an action of ejectment brought by a mortgagor, against any other person than the mortgagee, that the legal title is in the mortgagee, and the law day of the mortgage has arrived. The mortgagor must be considered as the real and legal i owner as against every stranger, and a defendant in ejectment is not permitted to set up an outstanding legal’ title in a mortgagee with which he does not connect himself. The better and prevailing doctrine is, that a mortgage is a mere security as to third persons, and as to them the mortgagor has •such a title as will support ejectment. — Denby v. Mellgrew, 58 Ala. 147; Duvals Heirs v. McLoskey, 1 Ala. 708; Scott v. Ware, 65 Ala. 174; Wilson v. Troup, 14 Amer. Dec. 458, note, p. 474, 1 Jones, Mortg. § 11; Woods v. Hilderbrand, 2 Amer. Rep. 513; 3 Wait’s Act. and Def. 66. It was not material, therefore, that the’ plaintiffs had executed a mortgage on the premises sued for, as the defendant fails to show he was in any manner connected with it.
A mere purchaser, at execution sale, of the equity of redemption owned by the mortgagor has been placed on a different footing by our decisions - a conclusion in which I am not at present prepared to concur. — Atcheson v. Broadhead, 56 Ala. 414; Childress v. Monette, 54 Ala. 317; Code of 1876, § 3209, sub. div. 3.
The deed executed by Costley to Allen clearly constituted color of title, and the court erred in charging to the contrary. Though void in fact, it was prima facie a good title, and its defects are made manifest by proof of extrinsic facts not appearing on its face. That a void deed may be good as color of title can scarcely he said to admit of question, and certainly not under the decisions of this court. Defects in title, in such cases, are material, however, as affecting th ebonafides of the grantee, and will not be permitted to destroy color, unless they are so patent that a person of common understanding is held to take notice of them. — Molton v. Henderson, 62 Ala. 426; Ladd v. Dubroca, 61 Ala. 25; Riggs v. Fuller, 54 Ala. 141; Dillingham v. Brown, 38 Ala. 311; Tate v. Southard, 14 Amer. Dec. 578, note, 583-4; McMullin v. Erwin, 58 Ga. *448427; Pillow v. Roberts, 13 How. (U. S.) 472: Lindsay v. Fry, 25 Wis. 460; Brooks v. Bruyn, 35 Ill. 394.
The statute provides expressly that persons holding under color of title, in good faith, are not responsible for damages or rent [in actions for realty] for more than one year before the commencement of the suit.” — Code of 1876, § 2966. The evidence discloses the utmost good faith on the part of Allen in making the purchase of the lands in controversy. It may well be that he regarded the deed as perfectly good in view of the decision of this court in the case of Bibb & Falkner v. Avery, supra, which as above stated, was afterwards overruled.
Reversed and remanded.