#### Samuel H. Macy *et al. versus*Elizabeth Raymond *et al.*

Under *St.*1817, c. 190, § 12, which enacts that no license to an administrator to sell real estate of his intestate for the payment of debts, shall be in force for a longer term of time than one year, the deed to the purchaser must be executed and delivered within the year; otherwise it will not pass the land.

Writ of entry, (or the recovery of land in Nantucket. The demandants counted on their own seisin, and a disseisin by the tenants. Plea, that the tenants did not disseise.

At the trial, before *Wilde*J., the demandants gave in evi*290dence a deed of the demanded premises, dated October 21st, 1822, made to them by Elisha Raymond, administrator of the estate of Ebenezer Raymond, who died intestate, seised of the demanded premises in fee simple. The deed recited that the administrator was licensed by the judge of probate, at a court held on February 3d, 1820, to make sale of real estate of the intestate for the payment of debts, and in addition to a covenant that the demandants offered most for the demanded premises and that the same were thereupon struck off to them at a public vendue held on April 15th, 1820, it contained a covenant of general warranty and the usual covenants in an administrator’s deed.

Other evidence was introduced by each party, and a verdict was taken for the tenants, subject to the opinion of the whoie Court on several points ; but the only question on which the case was decided was, whether any thing passed by the administrator’s deed, it not having been executed and delivered within one year from the granting of the license.

*Shaw*and *T. G. Coffin,*for the tenants,

relied on *St.*18l7, c. 190, § 12, which enacts, that no such license “shall be in force for a longer term of time than one year from the time when such license shall have been granted. And no action by any heir or other person, interested for the recovery of any real estate sold under such license, shall be sustained, unless such action shall be brought within the term of five years after the execution and delivery of the deed given under such license : ” &c.

*Rand*and *K. fVhitman,*for the demandants.

*Per Curiam.*

A fatal objection to the maintenance of this action arises out of the delay in the sale. The license was to be in force for one year. It was not questioned in the argument, that if the land had not been put up at vendue within the year, the deed would have been ineffectual, but it was said, that as in popular estimation the land was sold within the year, the delivery of the deed after the year had expired was sufficient. We think this construction cannot prevail. The object of the legislature was, that the sale should be concluded and the deed delivered within the year. Otherwise there might be a complete evasion of the statute, and the estate be kept open for twenty *291years. No property passed until the deed was given, and until then, in a legal sense, there was no sale. And though the popular sense may be the true one, where the act of the legislature does not relate to a technical subject, yet it being here the object to limit the time of sales and prevent estates from being kept open longer than is necessary, the legal sense seems to be the proper one to be adopted in the present case.

It is said, however, that if the land is bid off within the year but the deed is not given, a bill in equity will lie to enforce a specific performance of the contract, and so it would be absurd to adopt a different construction of the statute in a writ of entry. Our construction might be incorrect if a bill in equity would lie after the expiration of the year. But a court of equity would not decree a useless act; a specific performance, where the party could not perform. If the statute had said expressly, that the deed should be given within the year, a decree of specific performance, after the year, would be nugatory; and so the case depends op the true construction of the statute. Nor is there any need of allowing more than a year for the delivery of the deed. If the party who bids off the land demands his deed within the year and it is refused, he has his action at law for damages, and that is sufficient.

*Judgment according to verdict.**1*

1

 The law as laid down in this case has been altered by *St.*1840, *c.*97.