The opinion of the court was delivered, at the circuit session in June, by
Bennett, J.This is an action of ejectment, and the declaration counts upon a seisin and ouster in the life-time of Crary. The premises in dispute are a part of what was called the home farm of Crary; and, at the trial, the defendant attempted to stand upon the title of Crary, as derived from his daughter; and the only question is, which has the best right ? For the plaintiff it is to be assumed, upon the exceptions, that Crary had a valid title to the premises ; and that the defendant was in possession, adverse to Crary, though upon the trial he did not rely upon his adverse possession.
The defendant, on trial, claimed title under Clarissa C. Weller, the daughter of Mr. Crary.
By the will of her father, Clarissa was made the residuary devisee and legatee; and it seems that for some cause which is not very apparent, the court of probate, on the 30th of November, 1848, passed a decree assigning the whole of the home farm to the daughter Clarissa; and on the 16th day of June, 1853, she gave a quit-claim deed of that part of the home farm now in dispute, to the defendant; supposed to be some twenty-five acres; and this deed was recorded on the 23d day of the same month.
The plaintiff proposed to show that John Fox, then the executor of the will, by the consent of Clarissa on the 21st of February, *3681848, and before the assignment bad been made to her, bargained and sold the whole of the home farm of the deceased, to a Mr, Button for nearly six thousand dollars; and that he had paid the price to Fox which he applied to the payment of the debts of the testate, the specific legacies and the expenses of the settlement of the estate; and that he had paid the balance of what remained to Clarissa; and that she, to save expense of getting an order of sale from the probate court, and to carry out the arrangement made between Fox, the executor, and Button, only three days after tins arrangement was made, quit-claimed to John Fox all title to every part of the home farm. This deed bears date the 24th of February, 1848, though not recorded until the 14th day of July, 1853 ; and that the defendant, when he purchased and took his deed from Clarissa of the 25 acres, on the 16th day of June, 1853, had full notice of this deed to Fox. This action is prosecuted by Button, in the name of the administrator, do bonis non, for his own benefit, in pursuance of an arrangement between him and Fox, made no doubt on account of the adverse possession set up by the defendant to the 25 acres of the home farm, in the life-time of Mr. Crary.
The whole of this evidence was considered immaterial by the county court as having no effect ujdoii the title set up by the defendant under Clarissa, and was excluded.
We are to inquire whether there was error in this; and also in the court’s directing a verdict for the defendant. Under the laws of this state, real estate becomes assets in the hands of the administrator or executor for the payment of debts ; and, sub modo, passes to them, and their rights are, for the time being, paramount to the rights of the heirs or devisees, though they have but a trust interest ; and the statute expressly enacts that no action of ejectment or other action to recover the seizin and possession of any lands, or for any damage done to such lands, shall be maintained by any heir or devisee, until there shall be a decree of the probate court, assigning such lands to such heir or devisee, or the time allowed for paying debts shall have expired, unless the administrator or executor shall voluntarily surrender the possession to the heir or devisee. In the present case, the purposes for which the real estate of the deceased became, sub modo, assets in the hands of the executor, had no,t been answered, in point of fact, and the object of *369the arrangement for a sale to Button was for the payment of the debts, &c. The sale to Button was by the consent of Clarrissa, and enured to her benefit; and, to carry out the arrangement, she .quit-claimed all her title to the home farm to Fox.
We think it is quite clear that the defendant cannot defend the action upon the strength of his deed from Clarissa. She having consented to the sale, by the executor, to Button, and having, also, confirmed the same by her deed to the executor, she would be com eluded from setting up a title in herself, adverse to the rights of Fox, and of Button; and, as the defendant had notice of the deed from Clarissa to the executor, when she conveyed to him, he can stand in no better situation, in this respect, than Clarissa would, and is equally concluded from claiming under that deed. He is chargeable with having acted in bad faith. If Clarissa had gained a legal title to the home farm, by force of the will, and the effect of the assignment of it by the probate court, it would enure to the benefit of Fox, at law, though in trust, by means of estoppel, and, in equity, to the benefit of Button. The question then arises, is the present action defeated by means of the deed from Clarissa to Fox ? We think not. As the case shows that the defendant was in adverse possession, at the time of the death of Mr. Crary, and this, we are to presume, was continued up to the time Clarissa deeded to Fox, -that deed would not have the effect to convey the legal title to Fox, as against the defendant; and though the defendant did not, upon the trial, insist upon his adverse possession, yet we think it was competent for the plaintiff to prove the adverse possession, in order to show that the action could still be maintained by the representative of the estate of Nathaniel Crary. For the purposes of this hearing,' we are to take whatever the testimony tended to prove, as proved, as well as what was offered to be proved.
By our statute, Comp. Stat., chap. 50, § 16, the present administrator has the same power, and may proceed in the same way, in settling the estate, as the executor, Fox, could have done; and, if Fox, the executor, in his life-time, could have maintained this action, it may well be maintained by the administrator, de bonis non, though a recovery may enure to the benefit of Button.
Judgment of the county court reversed, and the cause remanded.