lots of land in such manner as will best serve the interest of all concerned in said estate, requiring of the said administrator a due observance of the statute in such case made and provided, bearing date the twenty-eighth day of March, 1826, and attested in the name of James Porlier, chief justice of the county court of the county of Brown, and signed by Robert Irwin, Jr, clerk. Also a deed from Paul Grignon, as administrator of the estate of said Pierre Grignon, deceased, to Augustine Grignon, dated on the thirteenth day of June, 1826, and recorded, for land containing the land in dispute, was offered in connection with said license, the said deed having been made in pursuance of the sale made thereon; which was objected to by the plaintiffs, and admitted by the court, the said court giving its reasons therefor at length, which need not be repeated here.

Defendants then gave in evidence a deed from Augustine Grignon to John Jacob Astor and others, conveying the premises in question, dated November 5, 1834, and recorded, and followed that by a conveyance from said Astor and others to Linus Thompson, one of the defendants, for the lot in question, bearing date January 8, 1836.

It is unnecessary to notice the different reasons of the plaintiff's counsel for objecting to the testimony, on the part of the defendants, as they are embraced in the points put to the court and in the errors assigned.

The counsel for the lessors of the plaintiff requested the court to give to the jury the following instructions, and the same was instructed by the court thereon, as follows:

1. That if the jury believe from the evidence, that the lessors of the plaintiff are heirs at law of Pierre Grignon, deceased, or have shown a regular conveyance from the heirs at law to themselves of the premises in question, before the commencement of 'this suit, that then the defendants can claim no title under the sale of the premises in question, made by Paul Grignon -as administrator of the estate of Pierre Grignon, deceased, by virtue of the order made by the county court of Brown county, on the tenth day of January, 1826, unless the jury are satisfied that the repre

sentations made by the administrator to the said court, to obtain the order or license of the said court for the sale of the said premises, was accompanied with a certificate from the judge of probate of the county where said deceased person's estate was inventoried, certifying the value of the real estate of said deceased person, and the amount of his just debts, and also his opinion whether it be necessary that the whole be sold, and if a part only, what part, as directed by the third section of the act entitled "An act directing the settlement of estates of persons deceased, and for the conveyance of real estate in certain cases," as adopted by the governor and judges of the territory of Michigan, on the twenty-seventh day of July,

1818.

2. That the said order, or license, of the said county court for the said sale, unless the said court had been furnished with the said certificate of the judge of probate, is null and void as against the heirs at law of Pierre Grignon, who have not acquiesced in the said sale made by the administrator, under and by virtue of said order.

To the said two points the court answered as follows: As the county court had jurisdiction of this subject, we are to infer that these things were shown to said court.

3. That the said county court had no power or jurisdiction to make the said order of sale, without the said certificate of the said judge of probate.

To which the judge answered that the certificate of the judge of probate was not necessary to give the court jurisdiction; it was required as evidence.

4. It must appear affirmatively to the jury, that the said county court, at the time of making the said order for sale of said premises, had before them the said certificate of the said judge of probate, at the time, of making the said order, or granting the said license for the sale of the premises in question, or the said order of sale is void as against the heirs at law of Pierre Grignon, deceased, who had not acquiesced in the sale, and those claiming under them: To which the court answered, that the judgment of the county court having jurisdiction, is conclusive on this point.

5. Unless it appears affirmatively to the jury that the said county

court, previous to their passing on the said representation for the sale of said premises, ordered due notice to all parties concerned or their guardians, who did not signify their assent to such sale; to show cause, at such time and place as the court appoint, why such licence should not be granted, agreeably to the provisions of the said third section of said act in the first instruction referred to, that then the said order, or license, for sale, was void as against the heirs of Pierre Grignon, deceased, who have not acquiesced in such sale, and the defendants can acquire no title by virtue of the sale made by the administrator under the said order, as against the heirs at law of the said Pierre Grignon, deceased.

To which the court answered, that the county court having jurisdiction of this subject, their judgment is conclusive.

6. Unless the jury believe from the evidence that the said administrator, before the sale of the premises, gave thirty days public notice, by posting up notifications of such sale in the township where the lands lie, as well as where the said deceased last dwelt, and in the two next adjoining townships, or caused the printing of such notification for three successive weeks in such gazette or newspaper as the court, who authorized the sale ordered and directed, the sale was void as against the heirs of said deceased and those claiming under them.

To which the court instructed the jury; this is a fact for the jury; and you must find that the advertisement substantially complied with the law, or the sale is void.

7. That it must appear affirmatively that the administrator, before making sale of said premises, did literally and strictly comply with the provisions of said statute, in relation to posting up, or publishing the said notice of sale, or the said sale was void as against the heirs of Pierre Grignon, who have not acquiesced in the same.

To which the court directed the jury; that a substantial compliance with the requisites of the law, on this subject is suffi

cient.

8. If the jury believe from the evidence, that Peter B. Grignon, one of the lessors of the plaintiff, is one of the heirs at law of said

deceased, and was a minor at the time of making the said order of

sale, and at the time of said sale, a guardian should have been ap pointed to represent him according to law, and if no such guardian was appointed, the said sale was void as to him and those claiming under him.

To which the court answered; it was necessary and proper that if a minor, he should be notified by guardian, but in this issue the presumption is that he was. This is a fact that he might contro

vert on an appeal.

9. Unless the defendants in this case have proven affirmatively to the jury, that the administrator of the deceased, strictly complied with all the provisions of said statute, in obtaining the order for sale, and in making the said sale, that the defendants in this suit can acquire no title to the premises in question, under said sale, as against the lessors of the plaintiff, if the jury believe, from the evidence, that the lessors of the plaintiff are the heirs at law of said Pierre Grignon, deceased, or derived title from the heirs at law.

To which the court instructed the jury: The court charge the jury that they are bound to consider in this collateral issue, that the judgment, or order, of the county court of Brown county, ordering the sale, was made upon sufficient and proper evidence, and that they had every thing requisite before them, to authorize them to make the order for the sale; and that the judgment of that court is conclusive, until reversed.

The statute in force provided that, when the goods and chattels belonging to the estate of any deceased person, shall not be sufficient to answer his just debts, upon representation thereof, and the same being made to appear to the supreme judicial court, or to the county court in the county where the deceased person last dwelt, or in the county in which the said real estate lies, the said court is authorized to empower and license the executor, or administrator, of such estate, to make sale of all or any part of the houses, lands or tenements of the deceased, so far as shall be necessary to satisfy the just debts which the deceased owed at the time of his death; and every such executor or administrator, being so licensed and authorized as aforesaid, shall and may, by virtue of such authority, make, sign and execute in due form of law, deeds and conveyan

ces for such houses, lands and tenements which they shall so sell; which instrument shall make as good a title to the purchaser, his heirs and assigns forever, as the testator or intestate, being of full age, of sound mind and memory, in his life time, might or could have given for a valuable consideration: Provided, that the executor or administrator, before sale be made as aforesaid, give thirty days public notice, by posting up notifications of such sale in the township where the lands lie, as well as where the deceased per son last dwelt, and in the two next adjoining townships, and also in the county town of the county, and whoever will give most, shall have the preference in such sale.

When it shall be necessary that he should be empowered to sell some part of the real estate for the payment of debts, and that the same shall be represented and made to appear to either of the aforesaid courts on petition and declaration filed and duly proved therein by the said executors or administrators, the said courts respectively may authorize and empower such executor or administrator to sell and convey the whole, or so much of the real estate as shall be most to the interest and benefit of the parties concerned therein, &c. The said executors, or administrators, shall first give bonds with sufficient sureties to the judge of probate, for the county where the deceased testator or intestate last dwelt and his estate was inventoried, that he will observe the rules and directions of law for the sale of real estate by executors and administrators. The third section of the said statute requires, that every representation to be made as aforesaid, shall be accompanied with a certificate of the judge of probate of the county where the deceased person's estate was inventoried, certifying the value of the real estate, and of the personal estate of such deceased person, and the amount of his just debts, and also his opinion whether it be necessary that the whole, or a part of the estate should be sold; or if a part only, what part. And the said courts, previous to their passing on such representation, shall order due notice to be given to all parties concerned, or their guardians, who do not signify their assent to such sale, to show cause at such time and place as they shall appoint, why such license should not be granted, &c.

The questions to be decided by this court may be reduced to the following: