Tbe pleadings in tbe cause in which plaintiffs, as commissioners, were authorized to make sale of tbe locus are not contained in tbe record before us. Even so, it is apparent tbe action was instituted under Chap. 49, P.L. 1933, now Art. 9, Chap. 33 of tbe General Statutes. It is so stated in tbe brief of appellees. That Act, known as tbe Missing Persons Statute, was enacted to provide for tbe *437preservation and protection of the estate of a person who has disappeared from the community of his residence and whose whereabouts has been unknown for three months or more and cannot, after diligent inquiry, be ascertained. Historically, its enactment was prompted by the McCoin incident. See Trust Co. v. McCoin, 206 N. C., 272, 173 S. E., 345.
Clearly the Act relates solely to the estates of living persons. So soon as the judge found as a fact that W. J. Roberson was dead, the authority of Roberson’s guardian to represent him in the action terminated and the administration of his estate became a matter for the probate court. Further proceedings in the original action were coram non judice.
After the death of a judgment debtor the judgment creditor may not proceed independently to enforce his judgment. He must look to the personal representative whose duty it is to administer the whole estate. Moore v. Jones, 226 N. C., 149, and cited cases.
But here there is no direct proof of the death of Roberson. If the judgment creditor cannot proceed by independent action in the Superior Court is he not denied a forum for the enforcement of a valid claim ? The answer is no.
“The absence of a person from his domicile, without being heard from by those who would be expected to hear from him if living, raises a presumption of his death — i.e., that he is dead at the end of seven years.” Beard v. Sovereign Lodge, 184 N. C., 154, 113 S. E., 661; Steele v. Insurance Co., 196 N. C., 408, 145 S. E., 787; Chamblee v. Bank, 211 N. C., 48, 188 S. E., 632; Deal v. Trust Co., 218 N. C., 483, 11 S. E. (2d), 464.
While death is a jurisdictional fact that must be made to appear as the basis for the issuance of letters of administration, this rule provides a method of proof of death when direct proof thereof is not available.
Jurisdiction to appoint an administrator of a deceased person who has died intestate and to issue letters for the administration of his estate rests exclusively in the clerk of the Superior Court. G. S. 28-1, 28-5; Clark v. Homes, Inc., 189 N. C., 703, 128 S. E., 20; Bank v. Commissioners of Yancey, 195 N. C., 678, 143 S. E., 252. And when evidence of death under the rule heretofore stated is offered before the clerk having jurisdiction and he finds therefrom that the party is in fact dead, he should so adjudge and appoint an administrator to administer his estate as provided by law. Chamblee v. Bank, supra; Deal v. Trust Co., supra.
While there is a division of opinion on this question in other jurisdictions it is accepted procedure with us. What is the purpose of the rule if it is not to constitute the basis of judicial action, and why have a method of proof if the proof, when made, is unavailing ?
The judgment below cannot be sustained on the theory that the decree of confirmation entered in an action to which the heirs at law were *438parties operates as an estoppel against tliem and thus, in effect, validates tlie title to the land purchased by defendant at the sale as therein confirmed. Springer v. Shavender, 116 N. C., 12; Springer v. Shavender, 118 N. C., 33.
The title tendered by plaintiffs is defective and the contract of purchase and sale is unenforceable. Trimmer v. Gorman, 129 N. C., 161. Hence the judgment below must be
Reversed.