Hinman, J.
This was an action of disseisin, to recover
the possession of premises lying in New Hartford. The plaintiff’s title was by a deed from Hiram Goodwin, under authority derived from the court of probate, appointing him to sell real estate of Sylvester Seymour deceased, sufficient to.pay certain debts and charges, allowed by said court against said Sylvester’s estate. The order empowered and ordered said Goodwin, to sell so much of said estate as should be-required, to raise the sum of nine hundred and sixty-six dollars and seventy four cents; and, as the land sold to the plaintiff, by the deed under which he claimed title, was less than that sum, it is now claimed, that the deed is void upon its face, on the ground that the order to sell was not strictly complied with. We see nothing objectionable in this : we know of no rule or law, that requires an administrator to sell all the real estate he is ordered to sell, at one and the same time, and to the same purchaser; Where the sum to be raised is large, it would often be very difficult, and perhaps impossible to do so. He can not sell *277mote than he is authorized to sell; and where such appears to be the case, on the face of the deed, the instrument is wholly inoperative and void, it being impossible to distinguish the excess from that which was authorized, and the whole must, therefore, fall together. But, where there is no excess of authority, and the administrator conducts reasonably, we see no objection to his making sales of different parcels, to different persons, as may best promote the interests of all concerned.
The plaintiff and the defendant Sylvester Seymour, were two of the sons and heirs-at-law, of the deceased, Sylvester Seymour, and the plaintiff was one of the administrators on his estate. The debt which was the foundation of the order of sale, was a note which had been executed by the deceased, to the town of New Hartford, and the plaintiff had joined in the execution of it, as surety for his father. The heirs wished to procure a distribution of the estate, before it could be known, what debts would be allowed against it, and, so-far as we know, before any administration account was settled in the court of probate. For this purpose, the administrators, on the 17th of September, 1829, made a representation to the court of probate, that certain turnpike stock, belonging to the estate, would be sufficient to pay the debts and charges that would probably be allowed against the estate, and they, thereupon, requested a distribution of all the estate, except said turnpike stock. Such a distribution was accordingly ordered, and, on the 30th of September, was made and returned to the probate court; and, on the same day, all the heirs of the deceased executed to the plaintiff an indemnity against his liability on said note to the town of New Hartford, and, thereupon, the distribution of the estate of the deceased, made as aforesaid, was assented to, by the widow, and all the heirs, and such mutual assent was indorsed upon the distribution, signed by all the parties in interest, and, being also executed under their respective seals, was also acknowledged, before the judge of *278probate; and the respective shares, so distributed to them, have , since been occupied and used by the distributees respectively, the defendant having ever since occupied the demanded premises, claiming the same, under said distribution. The plaintiff has since been compelled, by action at law, to pay said note, and the heirs not indemnifying him, as they had agreed, he procured his account for such payment to be allowed by the court of probate, and obtained the order of said court, to sell real estate to pay the same, which is the order under which the sale in question was made.
Upon these facts, and especially upon the distribution so agreed to, signed, and acknowledged by the plaintiff, the defendants insisted, in the court below, and still insist, that the plaintiff is estopped to set up a title in himself, against the title then acquired by the defendant; and whether he is so estopped, is the main, and only important question in the case. The agreement to indemnify the plaintiff against his liability on the note, was not under seal,' and was, therefore, a simple contract merely, and did not merge his claim against the estate, for the money afterward advanced by him. We do not see, therefore, how he could have been prevented from presenting his claim against the estate for payment, or how the court of probate could have refused to allow it. Indeed, the case shows that, although the allowance of it was contested, and the order of the probate court, allowing it, appealed from, yet the claim was sanctioned by the superior court, which refused to disaffirm the decree of probate.
If the plaintiff could not be prevented from prosecuting his claim against the assets belonging to the estate generally, the question then arises, whether, in consequence of his agreement to the distribution, executed, as we have seen it was, under his hand and seal, he is precluded from doing anything which may have the effect of breaking up that distribution. The defendants claim, that the assent of the *279plaintiff to that distribution, is tantamount to a covenant never to disturb, or do anything that shall in any manner affect it; but that it should, for all time, remain a distribution and division of the estate. On the other hand, the plaintiff’s claim is, that the distribution, though executed under the seal of the parties in interest, is still but a mere substitute for a distribution, effected only through the action of the court of probate : and, as such a distribution is always subject, by our law, (Griswold v. Bigelow, 6 Conn. R., 263 ; Booth v. Starr, 5 Day’s R., 286 ; Kirby, 36,) to be broken up by the appearance and allowance of claims against the estate, and a sale of the estate to pay them, this distribution is liable to be similarly affected. The equity of the case seems to favor this view of it. The statute requires, that a distribution shall be made by disinterested persons, unless all the persons interested make a division of the same, under their hands and seals.
Now, as there are only these two modes of making a distribution, and they are both alluded to, in the same section of the statute, and the mode of making either of them effective is particularly pointed out and prescribed; it seems rather unnecessary to make any distinction in the effect which they áre to have upon the rights of parties under them. And, in regard to this particular distribution, it is not unworthy of notice, that it was made at the same time the defendant, with the other heirs, made their written agreement to indemnify the plaintiff against the payment of the note he had signed with his father. The two instruments, being parts of the same transaction, the presumption is, that the plaintiff assented to the distribution, upon the faith that the defendant, and the other heirs, would perform their agreement to indemnify him. It is their neglect, alone, to make such indemnity, that has laid the foundation of the order If) sell, and made it necessary to sell, to indemnify himself against this very claim. The defendant could have prevented the sale, by performing his agreement to indem*280nify; and it seems rather ungracious, on his part, to resist the sale of his land, while he is refusing to do anything toward rendering it unnecessary. But we do not put the case on this ground, because we are all of opinion, that the defendants can not now take advantage of the distribution, to defeat the plaintiff, in this action. The case shows, that, in order to raise money to pay this claim, the court of probate issued an order to sell real estate. Now, although the claim was valid against the estate, yet it did not follow, that all the land of which the deceased died possessed, was liable to be sold to pay it, at the time the order to sell was issued. If the plaintiff had confirmed the title of any distributee, and covenanted that he would never, for any purpose, procure an order to sell the land distributed to him, it would seem, that he ought to be precluded from afterward selling it. But there was, in this case, no real estate, except such as was the subject of the distribution alluded to, and, if the defendants are correct in the claim which they now make, we think the proper time for them to take advantage of it, was, either at the time the order of sale was issued, or at any rate, at the time when the return of sale was accepted by the court of probate. That court had full and exclusive jurisdiction over the subject. It was competent for the defendants to have appeared before it, and objected to the order to sell; or they could have caused the order to.be so qualified, as that it should not affect the land distributed to them. They could have objected to the return of sale, and have caused it to have been rejected and disallowed; and, we think, their omission to take any measures to prevent the sale, ought now to conclude them, in this action. Had a third person, not interested in the estate, purchased this land, upon the faith of an administrator’s, sale, upon a regular order, finding, as this order did, that the personal estate was exhausted, and that there were debts and charges, to the amount stated in the order, still unpaid, and, thereupon, ordering the real estate to be sold to pay them, we presume no one would *281question the validity of his title. If an innocent purchaser could not rely on such a sale, it is clear that no one can know, when he may safely purchase, under a probate sale. But if a third person would be safe, in purchasing under this order, we do not see why the plaintiff should not also be protected. As between him and the defendants, we think the matter has passed under the sanction of the only court having jurisdiction over the subject. He could have appeared, as we have seen, and resisted the application to sell the real estate of the deceased, for the benefit of the plaintiff. There, he would have had a hearing upon the effect of the distribution, made'in the manner it was. That would have been a direct attack upon the plaintiff’s right to procure the sale of the distributed estate, and a much better mode of contesting the propriety of the order, than to do it in this more indirect, and, therefore, more irregular manner. Had he done this, it is presumed justice would have been done him in the probate court; but if not, he could have appealed, and thus have procured a decision directly upon the legality of his claims. We think he ought to have taken this course; and as he neglected to do so, he ought to be concluded by the proceedings, and he can not attack them in this collateral way. We do not, therefore, advise a new trial.
In this opinion, the other judges concurred.
New trial not to be granted.