The bill in this case is filed to quiet the title of the complainant to certain lands in Sanilac County, to which he derives title through sales made by the administrator of Samuel W. Monroe, of whom the defendants are heirs at law. The defendants contest the right of complainant to the decree he prays for, on grounds which it will be convenient to consider separately.
I. It is claimed that the case is not a proper one for relief in equity, inasmuch as the complainant claims by his bill a complete legal title, which could be fully examined and settled at law, and a part of the defendants had already commenced suits in ejectment for the recovery of their undivided interests in one of the lots in controversy, which suits were stayed by injunction in this proceeding.
We do not think there is any force to this objection. The complainant was in full possession of the lands, and was not, therefore, in position to -bring his right to trial by a suit in ejectment. ' The defendants were severally bringing actions against him in respect to one of the lots, and as he had an unquestionable right to file a bill to quiet his title to the others, and the questions were the same as to all, it was proper that to avoid a multiplicity of suits, the ejectment suits should be enjoined, and the questions in controversy be all determined in one proceeding. Besides, *240the record title was in the defendants, which, of itself, would justify the bill.
II. The first objection taken to the proceedings resulting in a sale by the administrator, r.elates to the validity of his appointment to that office. It appears that Hiram Bacon and Benjamin F. Luce were first appointed administrators on the Monroe estate, and that both qualified, but beyond joining in the inventory, Luce never acted, and soon left the state, which, under the statute, would have been cause for his removal. Bacon was in fact treated as sole administrator, and, as such, was. settled with and discharged by the Judge of Probate. No order of discharge was ever made as to Luce, but John L. Bell was appointed administrator ele lonis non, and acted and made sale 'of the lands as such.
Whether any question of the validity or regularity of Bell’s appointment could have been gone into under any o.ther circumstances than those disclosed by this record, we do not feel called upon to say, as we are clear that the question can not be raised as against this complainant. The statute — Comp. L. §3090 — is as follows: “In case of an action relating to any estate sold by an executor, administrator or guardian, in which an heir, or other person, claiming under the deceased, or in which the ward, or any person claiming under him, shall contest the validity of the sale, it shall not be avoided on account of any irregularity in the proceedings, provided it shall appear:
“1. That the executor, administrator or guardian was licensed to make the sale by ‘the Probate Court having jurisdiction ;
2. That he gave a bond, which was approved by the Judge of Probate, in case a bond was required upon, granting a license;
3. That he took the oath prescribed in this chapter;
4. That he gave notice of the time and place-of sale as in this chapter prescribed; and,
*2415. That the premises were sold accordingly, and the sale confirmed by the court, and that they are held by one who purchased them in good faith.”
.If it shall appear in our subsequent examination of this case that the facts made necessary to the support of a sale by this section actually exist, we do not think the regularity of Bell’s appointment can be inquired into. He was administrator de facto, and his license to make the sale, whether valid or invalid, Avas by the Probate Court of Sanilac County, which alone had jurisdiction to grant it; Monroe having been a resident of that county at the time of his death.
III. The license is claimed to be void, because the petition therefor did not describe any lands. This objection is disposed of by the case of Howard v. Moore, 2 Mich. 226. The lands were fully and properly described in the license, except one lot; and as to that, a supplemental order Avas afterwards made and appended to the original license, Avhich authorized and directed the administrator to sell it. There Avas, therefore, a license by the court having jurisdiction for the sale of all the lands; and if, as is claimed, the order for hearing on the petition for license Avas not published the full four weeks required by the statute, the complainant’s title will not be affected thereby.
IV. The license to sell required Bell to give bond for the faithful discharge of his duties on the sale. No bond is found in the files, but both Bell and the Judge of Probate testify that they have no doubt one Avas given, and there is independent evidence that one was drafted. This evidence was met by that of a person who, as the Judge of Probate testified, Avas one of the sureties, and who denied having signed any such bond. The preponderance of evidence, however, is the other way, though it is quite possible that the Judge of Probate may have been mistaken as to the surety.
*242It is proper to say in this connection that the evidence of Mills, the Judge of Probate, is assailed by the defendants as utterly unworthy of credit, and also as not properly taken in the cause. That he was dishonest in the proceedings is strongly to be inferred from this record, and we should hesitate about basing judicial action upon his uncorroborated statements. The formal objection to it is based upon its having been taken in the case before the suit was at an issue of fact as to a part of the defendants; but the defendants all appeared by solicitor without objection, when it was taken, and as, under our practice, the complainant is always put to the proof of his bill, except where its allegations are expressly admitted, there is nothing in the way of taking testimony by consent, as soon as the bill is filed. And if the evidence of Mills should be disregarded in this case, that of Bell would still stand unimpeached, and would be supported by some collateral circumstances and inferences.
Y. It is insisted that there is no legal proof of the posting of notices of the sale by Bell, as was required by the statute. That notices were duly published in a newspaper, as the statute prescribed, was fully 'shown, and Bell, in his report of sale, stated under oath that he posted notices also. He subsequently, but not till ten years after-wards, made and filed in the Probate Court an affidavit of the posting in due form; but this does not appear to have been done by consent of the court, and under the decision in Mundy v. Monroe, 1 Mich. 68, can not be considered legal evidence. But the report of sale, Avhich was made at the time, and which was duly confirmed, is evidence, and sufficient, we think, on this point.
YI. As to two of the lots, the sale is claimed to be void, on the ground that they were bid off by one John Divine for Mills, the Judge of Probate, and actually deeded OArer to Mills before the sale was confirmed. The proof, however, does not support this allegation. Divine testifies *243that he bought the lots for himself, and that he deeded them over to Mills at the request of the latter, who claimed to want the title for one Buell. That Mills accounted to the administrator for the purchase price is conceded, but Divine says the sale was confirmed before he was spoken to on the subject by Mills. The suspicious circumstance at this point is that the deed is dated before the confirmation; but Divine swears that it was neither executed nor acknowledged until afterwards; and though no one pretends to explain this date, it does not seem sufficient to overcome the testimony of Divine, who could not well be mistaken in what he swears to, and whose candor is not impeached. Mills, it appears, afterwards conveyed to Buell, and we do not think the record gives any such notice of actual or probable fraud in the sale as should preclude the complainant becoming purchaser in good faith, and having the benefit of the statute.
VII. Some objection is taken to the sale on the ground that the. estate of Samuel Monroe had only an equitable title to the lands; the legal title being then held in trust for him by his brother in Canada. If this trust was declared by writing — as to which we have no evidence— it is very likely it was one which was executed by our Statute of Dses; but whether that was so or not is immaterial on this inquiry. Samuel Monroe had the complete equitable title in fee to the lands, and the proceedings to sell them should have been the same as in other cases. ■
This review of the case brings us to the conclusion that all the statutory requisites to a valid sale exist in the case, and that complainant should have the relief prayed. At the same time we have no doubt the sale was unnecessary, and brought about by dishonest procurement. But the complainant was in no way connected with this dishonesty, nor Avas it brought home to his knowledge before his purchase, so far as the testimony shows. He and the heirs are alike innocent parties, one or the other of whom must *244suffer by the' fraud which has been perpetrated, and under the circumstances the statute casts the loss upon the heirs.
’This disposes of the case, except as to the question of costs. These, we think, the court below ought not to have awarded against the defendants. They were asserting in good faith a title apparently valid, and the complainant was compelled to come into a court of equity to perfect his title by making proof of those proceedings which did not appear by the probate records, and thereby curing defects with notice of which he was fairly chargeable. We think the expense of correcting his record-title under such circumstances should have been borne by himself.
There was nothing unreasonable or unfair in the defense which was made, but the case on the other hand, was so doubtful as to fully justify defendants in putting complainant to his proofs.
The decree for costs in the court below will be reversed, and the defendants will recover costs. In other respects it will be affirmed. No costs will be awarded on this appeal.
Campbell J. concurred.