majority"> Bynum, J.

The only respect in which this case differs • from that of Paschall v. Harris, 74 N. C., 335, is, that there, the judgment debtor executed a mortgage with a power of sale, under which the mortagee sold and conveyed to the purchaser; while here, the judgment debtor sold and conveyed directly to the purchaser. ■ Of course this difference is immaterial, and the decision in the former case must govern this.

It was held in that case that “ the right of the intestate and of his heirs and of the administrator, was divested by *440 the sale. Whether the mortagee and the purchaser under the power of sale, áre subject to the lien of the docketed judgment, or whether they can get rid of the lien of the judgment, as purchasers for value and without notice, by reason of the laches of the judgment creditors in delaying to sue out-execution for more than three years, are questions into which the plaintiff has no concern. If the creditors who have docketed judgments wish to make the question, it must be done by some proceeding on their part, for instance,, let them issue executions and sell the land; then the purchaser under the execution, and the purchaser under the power of saje in the mortgage, can have a ‘ fair fight ’ and the question be put on its merits.”

The act, Bat. Rev. ch. 45, § 71, only authorizes a sale by the administrator, of all the interest of a deceased debtor in land possessed by him, whether .legal or equitable, and any land which the intestate may have conveyed for the purpose of defrauding creditors. It is not alleged in the complaint that the lands of the intestate were sold and conveyed by him with an intent to defraud his creditors, and the case of Paschall v. Harris decides that no such fraudulent intent is implied in law, where a debtor by docketed judgment,, executes a mortgage to secure a loan of money. In our case the land was sold by the intestate for its value, according to the express allegation of the complaint. The sale however did not disturb existing liens, but did divest the intestate of all title, legal or equifable, in the land sold?- and it follows that the administratrix, as to that, is functus officio.

The ca,se is here only upon the demurrer of the defendants, Abernathy and the Cape Eear Iron and Steel Company. The judgment below was that the demurrer be sustained and the proceeding as to them be dismissed. The administratrix answered the complaint, admitting that her intestate left no personal property beyond.her year's allow- *441 anee, and that he owned a small tract of land near Cokes-berry church. The complaint also alleged that the intestate owned a mineral interest in the Chambers land on Deep river. As the Judge below remanded the case to the Probate Court for further proceedings, if desired, against the administratrix, and no appeal was taken from that order, nothing is before us but the action of his His Honor upon the demurrer. As to that, there is no error.

No error. Judgment affirmed.

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