The opinion of the Court was drawn up by

Both parties claim title under one Thomas Pemberton, who it is admitted died seised of the demanded nremises, having by bis last will and testament devised the same to the demandant in fee, from and after the determination of the estate of one Elizabeth Wells, to whom the same was devised for life. This devise took effect, and the estate vested in possession in the demandant, on the death of the tenant for life, unless the provision in the will has been defeated by a sale made to the tenants by the administrator de bonis non on the estate of Pemberton; so that the case turns on the authority of the administrator, and the regularity of his proceedings, in relation to that sale.

In July 1807, Dalton, the executor of Pemberton’s will, was duly appointed to administer the estate, and thereupon gave notice of his appointment as the law directs. He lived and continued to administer the estate until September 8th, 1811, more than four years having elapsed 'from the time of his appointment and notice given; and the demandant contends, that by virtue of St. 1788, c. 66, the lien which the creditors had on the real estate was discharged.

It is clear that if an action had been commenced against Dalton by a creditor after the expiration of four years, he not having complied with the 4th section of that act, the executor might have defended himself by pleading the statute in bar; and he would have been bound so to plead.1 If he had suffered judgment to be recovered against the estate of the testator, execution could not have been lawfully extended on the real estate ; for the statute was intended not so much

*143for the relief of executors and administrators, as for the bene fit of the heirs. Brown et al. v. Anderson, 13 Mass. R. 203 ; Scott v. Hancock et al. ibid. 162; Ex parte Allen, 15 Mass. R. 58.

The creditor’s claim on the real estate, being thus extinguished, could not revive on the appointment of the administrator de bonis non. Thompson v. Brown et al. 16 Mass. R. 172. The real estate therefore was ne\ er assets in his hands, and he could have no authority to dispose of it.

But it has been argued that we cannot look behind the license, the court granting it having jurisdiction of the subject matter, and consequently their decision being binding and conclusive on the heirs and devisees. The cases of Perkins v. Fairfield, 11 Mass. R. 227, and of Leverett v. Harris, 7 Mass. R. 292, are relied on in support of this position. But we think those cases are distinguishable from the case at bar, which more resembles the case of Thompson v. Brown et al. before referred to.

In the case of Leverett v. Harris the sale by the adminis tratrix had been made twenty-seven years before the commencement of the action, and the question was whether aftei such a length of time, during which the vendee remained in quiet possession, evidence should be received to impeach the proceedings in the probate court, and to contradict the certificate of the judge of probate, that the personal estate was insufficient to pay the debts. This evidence was very properly rejected, for the necessary consequence of admitting such evidence would have been to open the account of the administratrix, and to reexamine the proceedings in the probate court touching a .matter of which it clearly had juris diction.

In the case of Perkins v. Fairfield the estate of the deceased had been represented insolvent, and the certificate of the judge of probate was founded on the list of claims allowed by the commissioners. One of these had been after-wards reduced by a trial at law, so that the proceeds of the real estate exceeded the amount of claims thus reduced, and the attempt was to set aside the sale as void on account of this excesí But die sale was held va’i l

*144These cases may be supported without asserting that in all cases the license of court is conclusive. There is an evident distinction between a mistake made by a court having jurisdiction of the subject matter, and the decision of a court not having cognizance of the case. In the case of Perkins v. Fairfield the court had jurisdiction, and when the license was granted the amount of sales authorized was correct: and after the amount of claims allowed had been reduced, still the court had jurisdiction. The license was in no respect erroneous, except in the amount of sales allowed. A case therefore was made out to which the jurisdiction of the court did by law attach ; and the mistake of the court in authorizing a sale óf more property than was necessary, was not to be corrected by vacating the whole sale.

But in the case under consideration, it appears that the court granting license to the administrator had no jurisdiction of the subject matter ;1 for if the administrator had no right to sell, the estate not being assets in his hands, the court had no cognizance of the case, and the license was merely void. It was not a case for deliberation or decision. The license could give no authority to the administrator, who might as well have been licensed to sell the lands of a stranger. To make an administrator’s sale valid, the right of the administrator to sell, and the license of the court, must coincide Thompson v. Brown, 16 Mass. R. 180.2 We are therefore of the opinion, that the demandant is entitled to recover, subject however to the provisions of the limitation and settlement act, to the benefit of which the tenants are clearly entitled It is no objection to tlieir claim, that they entered during the continuance of the estate of the tenant for life, and that the demandant’s title did not- accrue until within six years from the commencement of the action. The shifting of the legal title does not affect the tenant’s possession, and as they have had actcal possession for more than six years, they are en titled to the benefit of the statute.3

*145The verdict is accordingly to be set aside, and a verdict entered for the demandant ; and by agreement of the parties, an assessor will be appointed to ascertain the increased value of the land by reason of the tenant’s buildings and improvements, and also what would have been the value had no such buildings and improvements been made; —judgment to be rendered according to the report of the assessor, and the provisions of the statute.