In relation to the several special pleas, the Court are unanimous in the opinion that they were insufficiently pleaded, and that as far as they contain available matter, it might have been given in evidence under the general issue. Thei'e was consequently, no error in sustaining the demurrer.

The rejection of the evidence offered, is assigned for error. In the consideration of thé case, it becomes material to inquire under what law or act ol the legislature, the proceedings in the County Court directing a sale of the lands were instituted.

The act of 1803, contemplates the sale of lands by an administrator in propia persona, and authorizes him to make a conveyance to the purchaser in cases where tho personal estate is insufficient for the payment of debts. The act of 181S provides, that the County Court may order a sale of the land when it shall appear to be more beneficial to the estate than to sell slaves. Neither of these acts requires the County Court to appoint commissioners to sell the lands. The act of 1822 enacts, that the executor or administrator, where the personal estate is insufficient for the payment of debts, or when it becomes necessary for the purpose of equal distribution among the heirs or devisees, may petition the County Court for the sale of the real estate, and that in its order or decree, the Court shall appoint commissioners, with directions to sell *334the estate, and to report to said Court within the time limited, in the order or decree; and that on the report of commissioners, the Court shall render a final decree, directing them to convey the estate to the purchasers. This being the last act on the subject, and giving ample authority to the County Court to order a sale of the real estate of testators, and intestates, whenever it becomes necessary, either for the payment of debts, or for the pur-' pose of equal distribution, and these also being cases of frequent and ordinary occurrence, it is fair to presume,' that the proceedings in the County Court were had under the act of 1822. But the record itself furnishes satisfactory evidence, and shews clearly, that the proceedings were under the act of 1822. For it is stated in the bill of exceptions, that the defendants offered to prove commissioners were appointed to sell the lands; that they did not report to the Court, nor did the Court make any final decree directing them- to convey to the purchaser. All of which are made necessary requisites by this act, but are required by no other act within my recollection.

Being satisfied then, that the proceedings in the County Court were' instituted under the act of 1822, without inquiring whether former acts on the same subject are superseded by the provisions of this act, the next question arising is, was the evidence properly rejected?

I lay it down as incontrovertible, that the County Court is a Court of special and limited jurisdiction; that its authority to order or decree the sale of the real estate of testators and intestates, is not derived from the common law, but is created by statute, and to render the sale valid, all material requisitions of the statute must be complied with. In the case at bar, were all the material requisitions of the statute complied with? One very material requistion of the statute, as has been already shewn, is, that the commissioners Shall make their report to the Court, on which the Court shall make its final decree, directing them to convey to the purchaser. ' In order to give effect to the proceedings of the Court, and reality to Wiley’s title, this was. essential, but which was not done, and the omission is fatal. Wiley’s title therefore, was wholly defective and void, unless the omission can yet be supplied so as to complete it.

If the title can yet be made perfect, it must be either by the Court from which it is derived, or from the aid of a' Court of equity. I apprehend' that the County Court, *335from which the title is derived, is incompetent to the task; because years have elapsed beyond a reasonable period of time since those proceedings were transacted in that Court, and it is now too late to call on the commissioners to make their report, or for the Court to make its final decree directing them to convey the land to the purchaser. The statute requires the commissioners to report to the Court within the time limited by the order of sale, and the Court connot now compel the commissioners to make their report, who in all probability, are dead. Nor can a Court of equity lend its aid, because the statute gave jurisdiction to the County Court, and that Court having first got possession of the subject of litigation, it was competent to a final decision, and to have caused sufficient titles to have been made to Wile]^. The title, therefore, is totally defective and void.

Apart then, from the circumstance of Wiley’s being put in possession under the sale, there was an entire failure of consideration; and if the consideration has totally failed, Wiley ought not to be compelled to pay the purchase money.

Wiley purchased the land, and not the possession, which formed no part of the consideration, and it was not incumbent on him in order to resist the payment of the money, to offer to place the vendor in statu quo, or to be evicted by a title paramount, when the title was totally defective, and there was an entire failure of consideration. It seems that this principle applies in cases only where there is a partial failure of consideration, or where it is possible for the vendor yet to make good the title, or when the vendor has covenanted for a good title with ' the vendee. But it can have no application where abad title is derived through the medium of a Court of competent jurisdiction, and without a, possibility of making that title good. If he has enjoyed the benefit of possession, he may be evicted by the rightful owner, and will be accountable for the rents and profits. I am further of opinion, that the administrator had no right to sue on the note before he had given bond, with security to the Court for the faithful application of the money arising from the sale, unless there had been a decree requiring the commissioners to make a conveyance to Wiley, the purchaser, which would pre-suppose the bond had been given.

For these reasons, the Court are unanimous in reversing the judgment and remanding the cause.