The following opinion, finally disposing of the cause, was filed at the June term, 1868.
Cole, J.At the former hearing of this case we thought the judgment of the circuit court should be affirmed, upon the ground that if the title which the plaintiff acquired at the administrator’s sale should turn out to be a perfect one, this would furnish a sufficient answer to his application for equitable relief. We are now satisfied that this view of the case cannot be entertained upon the facts found by the court below. *40For the court found that the administrator, for the purpose of raising money to pay a debt allowed against the Shadwick estate, applied in October, 1859, to the county court of Lafayette county for license to sell real estate, and that the county judge, because he had been of counsel fov some patties interested m the matter, transferred the application to the judge of the circuit court, by whom the license was granted under which the sale was made. It is claimed that these facts show that the administrator’s sale was void ■ — • the circuit judge having no power to act in the matter. An examination of the various provisions of our statute bearing upon this subject has convinced us that this view must prevail.
It is hardly necessary to remark, that when the personal estate of any deceased person in the hands of the executor or administrator is insufficient to pay all the debts, the statute has conferred upon the county court power to license the sale of the real estate upon a proper application therefor. Chap. 94, R. S. And the circuit judge is only authorized to act in hearing the application in cases where the statute disqualifies the county judge from sitting- in the matter. Sections 16 and 17, chap. 117, R. S., declare when a county judge shall be deemed incapacitated from executing the duties in relation to -the estate oi question. By the 16th section, when the judge, his wife or child, shall be an heir or legatee, or when the judge shall be an executor or administrator of a deceased person, he shall be deemed incapacitated for executing the duties of his office in relation to that estate. And the next section of the chapter provides, that when the judge, as a creditor or otherwise, shall be interested in any question to be decided by the court, he shall be deemed incapacitated for acting in the decision of that question; and the judge of the circuit court for the same county, in such case, shall perform the duties of the judge of the county court. It will be at once seen, that the statute does not make, it a ground of disqualification that the judge of the county *41court bas acted as counsel for parties interested in the matter. It is only when the judge, as creditor or otherwise, is himself interested in the question to be decided, that is, when he has some pecuniary interest in the matter, or where he holds a certain domestic, social or official relation to the estate or to persons pecuniarily interested therein, that the statute disqualifies him from acting. In all other cases he must perform the duties of his office, and the judge' of the circuit court has no right to act for him. The judge of the county court of LaEayette county, therefore, was fully competent to sit and decide upon the application of the administrator of the Shadwiclc estate, and he was the proper officer to grant the license. The circuit judge had no power whatever to act. under the circumstances, and the license’ granted by'him must be treated as an order made coram non jiidice, and void. This order, and consequently the sale under it, being absolutely void, it is impossible to deny the plaintiff the relief he seeks, upon the ground that his title founded upon the sale may ultimately turn out to be perfect.
This brings us to a consideration of the question whether, upon the matters stated in the complaint and set forth in the finding of the court, the plaintiff is entitled to the relief sought. The equities of the plaintiff’s case certainly appear sufficiently clear and strong to entitle him to some relief. If the administrator’s sale is void, he surely should be repaid the money he has advanced upon it. And we perceive no valid reason why he should not be subrogated to the rights of Prideaux under his mortgages. The court finds that these were valid and subsisting liens when Shadwiclc died; and further that Hammett and wife applied to Jones to aid them to raise money to pay these incumbrances and other debts against the estate, representing to him that the defendant Charlotte was the- only heir of Shadwiclc, and as such had inherited his property. As the result of the various trails-*42actions mentioned in the finding, all the rights and interest of Jones in these mortgages, and for moneys advanced by him to the administrator to pay other debts against the estate besides those due Prideaux, have become vested in the plaintiff. He now asks to have the benefit of the Prideaux-mortgages. Why should he not have the benefit of those securities ? The defense set up in the answer is, that those mortgages have been satisfied and discharged by the defendant Charlotte, or if not paid were barred by the statute of limitations. The finding shows that Jones agreed to advance the money to Prideaux upon the understanding that these securities were to be assigned to him. It appears that Prideaux, instead of executing an assignment, as he should have done to carry out the agreement of the parties, executed satisfaction pieces thereof. He delivered over the notes and mortgages, however, and the obvious mistake of executing a satisfaction piece instead of an assignment should not prejudice the rights of assignees. So far as the statute of limitations is concerned, that certainly does not bar an action to foreclose the mortgages. After these mortgages are satisfied, the plaintiff should share with other creditors of the Shadwick estate ratably for the amount advanced to pay off the debts against that estate. It appears that when the plaintiff advanced this money, he did so believing that Charlotte was the sole heir of Shadwick, and this money was applied, in fact, to pay debts owing by Shadwick, and for the payment of which the estate was liable. Every principle of natural justice and equity require that these debts also be paid out of that estate. And the proposition that the heirs should receive the property of the estate relieved from the payment of this claim, is wholly inadmissible. We cannot see why the plaintiff should not have the relief asked in the complaint.
By the .Court. — The judgment of the circuit court is reversed, and the cause remanded for further proceedings according to law.