Upon the facts reported, we are of opinion that the demandant is entitled to recover one undivided ninth part of the demanded premises, as one of the heirs at law of Elijah Thomas, excepting five acres, to which, it is admitted, the tenant has a good title. The demandant’s claim to the whole was disposed of at the trial, and is waived. The question now is, whether the title of Elijah Thomas was valid, and paramount to that of the tenant. The objection is, that the deed to him from Seth Southworth, the administrator of Sylvanus Tillson, was void ; he not being licensed to make sale of the said estate, as required by St. 1788, c. 51, <§> 3, which was then in force. • But we are of opinion that the tenant cannot avail himself of this objection. We consider this conveyance as valid, except as against the heirs of Tillson. The administrator was seized of the estate conveyed, in trust for the widow and heirs of Tillson; and it would be of no importance to any other person whether the estate were sold, or held in trust for them. The administrator has accounted for the proceeds of the sale, in the probate court, and no objection has been made by the heirs of Tillson. The tenant could not be prejudiced by the sale, for it did not deprive him of his right of redemption. And to him it must be immaterial whether the title passed by the administrator’s deed to Elijah Thomas, or still remains the property of the administrator ; for if the deed were void, the tenant would be liable to be ejected by the administrator. Considering these circumstances, we are of opinion that the deed of the administraior is not void, and could have been avoided only by the heirs; and they have elected, as they had a right to do, not to avoid, but to confirm it, by acquiescing in the settlement of the account of administration in the probate court, in which they were credited for the purchase money. And this we consider as equivalent to a deed of confirmation from *408them. Jenison v. Hapgood, 7 Pick. 8. It would be otherwise, if the legal estate had been in the heirs, for in such case the administrator would have no power to sell without obtaining license in compliance with the statute. But as the legal estate was in the administrator, he alone could convey the legal title. The license was required solely for the purpose of binding the heirs, and they alone can take advantage of the omission to procure it. This conclusion is fully supported by the principle laid down in Fletcher v. Stone, 3 Pick. 250, as to the distinction between void and voidable deeds. By those principles, it seems to us very clear that the deed in question cannot be considered as a void deed, and we are therefore of the opinion that the demandant is entitled to judgment for one ninth part of the premises demanded by her.