text:
    WYMAN et al. vs. CAMPBELL et al.
    1. The several statutes of this State, passed in 1818,1820 and 1822, touching the jurisdiction of the Orphans’ court, in relation to a sale of the estates of deceased persons, are all in force, and must be construed together, — there is no want of harmony between them.
    2. And if there were, the law never favors the repeal of a statute, by implication, unless the repugnance be apparent, or in their operation they be irreconcilable.
    3. The Orphans’ court derives its entire jurisdiction, in reference to an order of sale of the real estate of deceased persons, from the legislation of the State; and if no warrant can there be found for the acts of the court, those acts must be taken to be coram nonjudice.'

    4. Proceedings in the Orphans’ court, in order to a sale of the realty, are in rem, against the estate of an intestate, and not
      inpersqnanv,- and therefore plenary jurisdiction is vested in the court, over the thing, though the party in interest be not notified of the pendency of the proceeding: — the Orphans’ court acquires a potential jurisdiction over an estate, by the death of an ancestor, and such jurisdiction is in actual exercise, when the court assumes to act upon the report of commissioners, who disclose the fact, that a division of the estate can not be equitably made without injury to the heirs.
    ¡5. The judgment of a court having jurisdiction of the parties, and the subject matter, is conclusive upon parties'and privies —notwithstanding the record may abound with irregularities, which would authorise the reversal of the judgment by a revising court: and if the proceeding be in rein, jurisdiction may well attach quoad the thing — though the person of the defendant be not reached by process.

      6. And an order cr decree of the Orphans’ court, in a case within its jurisdiction, like judgments or decrees in the ordinary course of judicial proceedings, would not be void, or be collaterally impeachable ; — though the proceedings may discover errors, for which an appellate court, if directly appealed to, should reverse.
    7. In case of an order for a sale of property, which s'ale has taken place, — if a judgment be reversed for error, in the record, the defendant can only obtain restitution of the money, while the purchaser shall hold the property.
    8. And so, where an administrator omits to give a bond, on a sale of real estate, according to law — rthe omission does not .avoid the sale,
    ,?. Where particular forms are pointed out for the execution of a power, however immaterial they may appear in themselves, these forms are considered as conditions, the observance of which, can not be dispensed with, and it is neceesary that an Administrator should do eyery. thing required by the order of the court to be done previous to the sale, or the sale passes no title.
    10. But the purchaser can not be prejudiced by the omission of an administrator, to perform an act incumbent upon him, after the sale. — The interest acquired by the purchase, can not be lost, by a failure, on the part of the administrator to make a return to the Orphans’ court, of the proceedings under the order authorising the sale.
    Error to the Circuit court of Montgomery county.
    Trespass to try title. At the March term of the • «Circuit court of said county, eighteen hundred and thirty-four, David Campbell, Eliza Campbell, Emily Fountain, children of Archibald Campbell, deceased, Robert Fountain, (husband of said Emily,) also Archibald Campbell, Maria Campbell and Mary Campbell, likewise children and heirs of Archibald Campbell, who had departed this life, intestate, declared against Sol.- Smith, Bushrod W. Bell, and Justus Wyman, in custody, &c. — For that, the said plaintiffs, on a certain day, theretofore, were seized in their 'own demesne, as of fee, of a certain messuage or close, situate, lying and being in the town of Montgomery, in the- county and State, &c., known and described in the plan of the said town, as lot number three, on the South side of Washington street, measuring in front, fifty-feet, and running back one hundred -and sixty feet — the same forming an 'oblong square. And, being so seized, as aforesaid, the said defendants, afterwards, to wit, on the day and year aforesaid, at Montgomery, aforesaid, with force and arms, broke and entered the said close, and did then and there eject, expel and disseize the said plaintiffs, of the messuage or close aforesaid, and did keep and maintain possession thereof, enjoying -the rents and profits of the same from thence hitherto — to the great wrong and injury of the plaintiffs, and against the peace and dignity, &c.

      And for that, also, the said plaintiffs, on the day and year last aforesaid, were seized and possessed of a certain other messuage or close, together with one Susan Campbell, by descent from Archibald Campbell, who died before that time, intestate; which said messuage or close was known and described as lot number three, on the South side of Washington street, of the town of Montgomery, situate in the county and State aforesaid. And being so seized, as aforesaid, on the day and year aforesaid, at the county aforesaid, with force and arms, one John Harper did break and enter .upon the said messuage, and close, and did then and there eject, expel and disseize the said plaintiffs and the said Susan. Which said messuage and close, through the said Harper, did, afterwards, come to the said defendant?, who had maintained their possession thereof, against the said plaintiffs, and enjoyed the rents and profits of the same.
    And the plaintiffs averred, that after the expulsion and ejectment aforesaid, the said Susan Campbell died intestate. By means whereof, an action had accrued to the said plaintiffs, to have and demand of the said defendants, the premises aforesaid, so detained by the said defendants, to their great wrong and injury, against the peace and dignity, &c., and to the damage of the plaintiffs, &c.
    To this declaration the defendants plead non culpa-bilis and liberum tenementum, upon which issues were taken.
    And at the March term of the same court, eighteen hundred and thirty-five, came a jury of good and lawful men, who being duly sworn, well and truly to try the issue joined, on their oaths, said, they found that lot number three, on the South side of Washington-street, in the town' of Montgomery, the premises described in the declaration of the plaintiffs, was the property of the plaintiffs, and that the defendants were guilty of the trespass. It was, therefore consi-Aered by the court, that the plaintiffs have a writ to obtain possession of the said premises, and that they recover of the defendants their damages, as aforesaid assessed, together with their costs, in that behalf expended.
    . From, this judgment there Was a writ of error to this court.
    The bill of exceptions stated, that on the trial of the case, the plaintiffs introduced the patent of the United States, made to John Falconer, assignee of Andrew Dexter, and a deed from said Falconer for the premises described in the plaintiffs’ declaration to Archibald Campbell, deceased, and proofs that the plaintiffs were the heirs of said Archibald Campbell. The defendants then introduced the records of the County and Orphans’ courts of Montgomery county, shewing by said records, that on the thirtieth day of January, eighteen hundred and twenty-seven, one John Harper was appointed administrator upon the estate of said Archibald Campbell deceased, by said court:— That on the eleventh day of April, eighteen hundred and twenty-seven, one of the heirs, David Campbell, petitioned for his distributive share of the estate of Archibald Campbell, deceased: That five commissioners were appointed to divide the estate of said Archibald Campbell, their return shewing division could not be made by them of said estate. They also introduced and read to the jury the following portion of the records, to wit:
    ’ “ This day came John Harper, administrator of the estate of Archibald Campbell, deceased, and filed a return of the commissioners heretofore appointed to make distribution of the said estate of the said Archibald Campbell, deceased, among the legatees, and legal representatives — from which it appears that a division can not be effected,' without manifest injury to said legatees. It is, therefore, ordered by the court, that three weeks’ publication be given, in the ‘Alabama Journal,’ for all persons interested in said estate, to appear at a regular Orphans’ court, to be holden on the third Monday in May next, and shew cause, if any they can, why the land belonging to said estate should not be sold.
    “ It appealing to the satisfaction of the court, that three weeks’ publication has been given in the ‘Alabama Journal,’ for all persons interested in the estate of Archibald Campbell, deceased, to appearand shew cause why the lands belonging to the estate should not be sold; and there being no objection to the same, —it was therefore ordered by the said court, that John Harper, administrator of said estate, proceed to sell all the lands or lots belonging to the estate of the said Archibald Campbell, deceased, on a credit of twelve months, to the highest biddeT, after having given notice, by setting up advertisements, in three public places, in said county, and publishing said advertisement in the ‘Alabama Journal,’ for three weeks, successively, before such day of sale. It is further ordered, that the said John Harper, administrator as aforesaid, enter into bond and sufficient security, that he will observe the rules and directions of law, for the sale of real estate, by administrators, and that he will well and truly account for the proceeds of said sale. It is further ordered by the court, that the said John Harper, administrator, as aforesaid, make return of the proceeds of said sale, within three months.”
    They also read to the jury the record of the said John Harper’s having sold the premises described in plaintiffs’ declaration, at public sale: that one Henry Goldthwaite became the purchaser at the sale of said premises, — the time of said sale being the sixth day of August, eighteen hundred and twenty-seven. The record, approving of said sales, receiving the return, and ordering it to be recorded, was then read to the jury. The defendants then introduced the deed, made by said John Harper, as administrator of said Archibald Campbell, deceased, to said Henry Goldthwaite; for said premises ; and also a deed from said Henry Goldthwaite to said defendants, for the premises described in the declaration. No evidence was offered; to prove, the said Harper gave bond to sell according to law. The record was then read, shewing that John Harper, on the thirty-first day of October, eighteen hundred and twenty-five, was appointed guardian of all the minor plaintiffs, heirs of said Archibald Campbell; and proof was made; that the estate of Archibald Campbell, was perfectly solvent, and that the petitioner, David Campbell, was of age, at the time he petitioned for distribution of said estate;
    Under this state of facts, the court charged the jury, that if they believed said Harper sold said premises, without giving bond to sell according to law, then the proceedings had by the administrator, were not only voidable, but absolutely void. That all the facts, upon which the exercise of the jurisdiction of the County Court could arise, must appear on the record of said court, and that in their absence the j ury would not presume their existence. That if the facts did not appear on the record, the proceedings were void, and conferred no title; and that unless the facts appeared, the proceedings of the county County court could be impeached collaterally in the present action. The defendants requested the court to charge the jury that if they believed the County court had jurisdiction of the subject matter of the sale of said premises, then a defect in the notice and publication of the time of said sale, rendered the proceedings only voidable, and not impeachable in said action, but binding until reversed. This charge the court declined giving, and charged, that all the requirements of the statute in such cases made, must appear of record, and in their -absence the proceedings were absolutely void. The court also charged the jury, unless the sale of said premises was conducted by said John Harper, administrator, &c., agreeably to the provisions of the act of eighteen hundred and twenty-two, governing sales of intestate’s estates, that the title of the heirs of said Archibald Campbell, was not divested, and ' that the act of eighteen hundred and twenty-two repealed all other acts on the subject, so far as they were in conflict with others, of a previous date, regulating sales of real estate of intestates, &c. To which things defendants respectively excepted, &c.
    And at the present term, the defendants assigned for error the matters and charges contained in the bill of exceptions and record, the charge given, and the refusal to charge as requested.

      JR,. D. Thorington, for the plaintiffs in error.

      Goldtlnoaite and Campbell, contra.
    Argued twice, with great ability and research.
   COLLIER, C. J.

Considering the case, in the point of view in which it was presented to the court at the argument, we proceed to inquire :—

First. — Does the statute of eighteen hundred and twenty-two, relating to the sale of the real estate of deceased persons, repeal previous enactments on the same subject, and to what extent ?

Second. — Had the Ophans court jurisdiction of the subject matter of the proceeding on which it acted X

Third. — If it had jurisdiction, were its proceedings void, or only voidable — and if the latter, could they be collaterally impeached X

1. In order to a solution of the first question, it is necessary to review the several statutes upon the subject to which it relates. By the twenty-eighth section of the act of eighteen hundred and three, “ concerning wills, and the duty of executors, administrators and guardians,” it is enacted, .“That when any executor or administrator shall discover or believe that the personal estate of his testator or intestate, is insufficient to pay the debts of the deceased, then it shall be the duty of such executor or administrator, as soon as may be, to make and exhibit on oath, a just and true account of the said personal estate and debts, as far as he can discover the same, to the Orphans’ court,” &c. Upon the exhibition of such account, it is directed, that a citation shall issue, requiring all persons, interested in the lands, tenements and hereditaments, of the deceased, to appear, at a time not less than forty days thereafter, and shew cause why so much of the lands, &c. as will be sufficient to pay the debts of the deceased, should not be sold. This citation is directed to be set up in three of the most public places of the county in which the lands, &c. are situate, for the space of thirty days, and be published for the same period in a public newspaper of the State.

By the second section of the act “concerning judicial proceedings,” passed in eighteen hundred and eighteen, it is enacted, “ That whenever it shall be made to appear to the satisfaction of any County court, that the estate of any deceased person, or those who are entitled to inherit the same, will be less injured by a sale of the land or a part thereof, for the payment of debts, than by a sale of slaves, such court may, on the petition of any party interested, cause a citation to issue to all other interested persons, if in the county, or when that is not the case by publication of notice in some newspaper, requiring such interested party or parties, to appear at the next county court, and shew cause, if any they can, why sale of the land belonging to the estate so situated should not be ordered; and on the return of such citation made known, or proof of the publication of the notice hereby required, at the next term of said court, if no cause be shewn, which the court deem sufficient, such court may order sale of such land, or part thereof, as may be necessary to satisfy debts, without a sale of ne-groes,” &c

The first section of the act of eighteen hundred and twenty, entitled “An act supplementary to the laws now in force, concerning wills, intestates and guardians,” enacts, that whenever any person dies in-' testate, leaving an estate unincumbered by debts, so as to render unnecessary a sale of any part of it, the phief justice or presiding magistrate of the County pourt, shall, within three months after the personal representative, reports the same to be solvent, appoint 'five, commissioners, with authority to them or a majo-* rity of them, to make division or distribution of the estate, &c. “Provided always, that when such division or distribution can not be equitably effected, with-; out manifest injury to the legatees or other legal representatives, then, and in that case, such estate shall be exposed to public sale as heretofore.”

- The act of eighteen hundred and twenty-two, entitled “An act to authorise administrators to sell land; belonging to the estate of their, intestate, to which a complete title has not been obtained,” makes it lawful for an administrator, or an executor who has no power by the will to sell real estate, to pay debts, or to make a more equitable division among the heirs, de-visees, ,&c. to file a petition, in the county court of the county in which letters of administration or letters testamentary have been granted, setting forth •that the personal estate of his intestate or' testator, is not sufficient to pay the debts with which it is chargeable, or that the,real estate can not be fairly, equitably and beneficially divided among the heirs or divisees of the intestate or testator, without a sale thereof, setting out, and particularly describing, in such petition, the estate proposed to be sold, and the names of the heirs or devisees of such intestate or testator, and particularly stating which are of age, and which are infants or femes popert, The court is then directed to issue citations to the heirs, &c. of full age, and to the husbands of such as are femes covert, and to appoint guardians to such as are infants. An issue is then to be made up between the petitioners and the guardians, &c., by the latter interposing a formal denial of the allegations of the petition. Proof is to be taken by .-deposition, and if the court shall determine in favor of a sale, commissioners are to be appointed to conduct it.

These were the only acts to be found in our statute book, at the time the order was made for a sale of the lot in dispute, which relate to the sale of the real estate of in-testates. And it may be remarked, that neither of these enactments expressly repeal the other — so that we have only to inquire, whether they so conflict in their terms, that they can not subsist together. To apply this test, we must first settle the interpretation of the act of eighteen hundred and twenty-two : -to do this we need not look beyond its terms for aids to lead the judgment, for it is so explicit in its provisions, as to speak conclusively its own meaning. It authorises an executor or administrator to file a petition in the County court of the county whence they derived their authority to act, asking an order for the sale ,of the real estate of their testator or intestate, — -first, where the personal estate is insufficient to pay debts; second, where the real estate can not be fairly, equitably and beneficially divided among the heirs or devisees thereof.

The act of eighteen hundred and twénty-two, embraces the entire ground covered by the act of eighteen hundred and three, and is still more extensive in its objects. It invests the personal representative with the right to petition the County court for an order to sell the real estate of his testator, or intestate, upon -the personal estate being insufficient to pay the debts with which it was chargeable. It varies materially the mode of procedure in order to obtain the decre for a sale, as well as the mode of its execution; and, the two acts being incompatible with each other, the earlier must be taken to have been abrogated by the later.

The statute of eighteen hundred and eighteen, gives the right to the County court, on the petition of any party interested, to order the lands belonging to the estate of a deceased person, to be sold, whenever the estate or those entitled to inherit it, would be less injured thereby, than by a sale of the slaves. There can be no pretence for saying the act of eighteen hundred and eighteen is in conflict with that of eighteen hundred and twenty-two. They each contemplate objects entirely different, and may operate together.

The proviso of the act of eighteen hundred and twenty, authorises a sale of the land, when it can not be equitably divided without manifest injury to the legatees or heirs; and the impracticability of an equitable division, is a fact to be ascertained after commissioners shall have been appointed to effect it. This statute confers an authority upon the County court, which the act of eighteen hundred and twenty-two affirms, but to be exerted under different circumstances. In order to a proceeding under the former, the agency of an executor or administrator is unnecessary. The act does not point out any particular proof by which the court is to become informed, that an equitable division can not be made. The court then, may adopt the report of the commissioners, as sufficient, or it may institute an inquiry, and require further evidence to convince the judgment.

Under the act of eighteen hundred and twenty-two, the personal representative is the principal actor : he commences the proceeding by filing his petition in the County court, — parties being made and an issue made up, he goes on to make good its allegations by proof. It does not necessarily belong to the office of an administrator to see that the real estate of his intestate is divided between bis heirs, or to obtain its sale, that the proceeds may be equitably distributed. The administrator may undertake this office, if he think proper, but if he omit it, he is not chargeable for an omission of legal duty. The one statute then, imposes upon the court, an obligation to act mero mo-tu; while the other only authorises its action upon the request of the personal representative. In this view they are entirely reconcileable; and each can perform its appropriate functions, without interference with the other.

The law never favors the repeal of a statute by implication, unless the repugnance be quite apparent; and such repeal, carrying with it a reflection on the wisdom of former legislatures, it has ever been confined to the repealing as little as possible, of precedent statutes. And though two statutes be seemingly repugnant, yet, if there be no clause of non ob-stante, in the latter, they shall, if possible, have such construction, that the latter may net be a repeal of the former, by implication. —Rex vs Downs.

In Me Cartee vs Orphans’ Society, Woodworth, Justice, observes, that it is a well settled rule, that where there is a discrepancy between two statutes, such exposition should be made, as that both may stand, together, if practicable.

We cite these cases, not for the purpose of shewing the correctness of our conclusions, for we do not admit any want of harmony between the acts of eighteen hundred and eighteen, eighteen hundred and twenty, and eighteen hundred and twenty-two; but we cite them rather, to prove the strong disposition of the courts, to reconcile statutes seemingly contradictory, instead of favoring an implied repeal.

2. Having determined what statutes were in force when the order of sale was made, we are next brought to consider what facts are necessary to give jurisdiction to the Orphans’ court, under the act of eighteen hundred and twenty ; for it is clear that the proceeding, in the case before us, was intended to conform to that act.

It may be assumed as undeniable, that legislation is •the only source whence the Orphans’ court derives its entire jurisdiction over the subject matter, and if no warrant Can there be found for its acts, they must be taken to be coram non judice. Before we enter upon the examination of this head, let it be premised, for the sake of perspicuity, that we employ the terms County and Orphans’ court, as designating the same tribunal. Following the designation of the legislature, either appellation is proper; but when spoken of, with reference to its supervision over the estates of deceased persons, the latter is peculiarly so.

We understand that the proceeding of the Orphans’ court is in rem against the estate of the intestate, and not in personam. • The order by that court; for the sale of real estate, so far as the question of jurisdiction is concerned, may well be compared to the condemnation of goods by a court of exchequer, where jurisdiction attaches upon a seizure, — it merely professes to divest the title of the ancestor, without affecting the persons or other property of the heirs. McPherson vs Cunliff, et al. So, an order, at the instance of an administrator, for leave to sell the crop of the intestate, or to sell at public sale,' his perishable property, is clearly a proceeding in rem, and requires no notice to those whose interests are concerned, in order to its validity. And in proceedings, according to the course of tlie admiralty, it is a universal rule, that a legal seizure, under lawful authority, gives jurisdiction, and decrees and sentences under such circumstances, divest the title of the whole world, and pass in rem adjudicata/m. So, in á suit at common law, or in equity, where the court proceeds against the thing, a seizure of property by virtue of process issued from a court of competent authority, vests a complete jurisdiction in the court that issued it, over the thing seized. But in the case at bar, no process against the lot in controversy was necessary to give jurisdiction to the Orphans’ court, — the statute which governs the proceeding, does not require it, and the thing itself, was subjected to the action of the court, for the purposes of a sale, so soon as it was sufficiently informed that no division could be equitably effected, without injury to the heirs.

In the case of Bissell vs Briggs, the general rule, that the court rendering a judgment, must have jurisdiction, both o.f the cause and the parties, is explicitly recognised. In that case the action was commenced by attachment, and the goods of the defendant seized; and the court held, that though he may not have had actual or constructive notice of the pendency of the action, yet it was competent to proceed to judgment, and sell the property attached, in order to its satisfaction. But if the goods should. prove insufficient, to the discharge of the judgment, the creditor could not sue an action on it outuf the State, because the defendant was not personally amenable to the jurisdiction of the court rendering it. This case shews that a court may acquire jurisdiction of a cause, where the proceeding is in rem, without reaching, by its process, the person of the defendant, and that quoad the thing itself, the judgment is as conclusive, as if the defendant was brought in by notice. In the present case¿ the Orphans' court acquired a 'potential jurisdiction over the subject matter, by the death of the ancestor,, and that jurisdiction, if it did not attach earlier, was certainly put in actual exercise, whenever that court as-* sumed to act upon the report of the commissioners,, which disclosed the fact, that a division could not he equitably made, without injury to the heirs.

In the case of Thompson vs Tolmie, the validity of the proceedings of an Orphans’ court, was collaterally drawn in question. The proceedings impugned, originated in the District of Columbia, and were founded on a law of Maryland, which declares, that in case the parties entitled to the intestate’s estate, can not agree upon a division; or in case any person entitled to any part, be a minor, application may be made to the court of the county where the estate lies, and the court shall appoint and issue a commission to five discreet men, who are required to adjudge and determine whether the estate will admit of being divided, without injury and loss to all the parties entitled; and to ascertain the value of the estate. And if the estate can be divided, without injury and loss to the parties, the commissioners are required to make partition of the same. And if they shall determine that the estate can not be divided without loss, they shall make return to the County court, and of the reasons upon which their judgment is formed; and also the real value of the estate. And if the judgment of the commissioners shall be confirmed by the County court, then the eldest son, child or person entitled, if of age, shall have the election to take the whole of the estate and pay to the others, their just proportion of the value, in money : and, on the refusal of the eldest child, the saíne election is given, in succession, to the other children, or persons entitled, who are of age : and if all refuse, the estate is to be sold under the direction of the commissioners, and the purchase money divided among the several persons entitled, according to their respective titles to the estate. But if all the- parties entitled shall be minors at the death of the intestate, the estate shall not be sold, until the eldest arrives to age, and the profits of the' estate shall be ■equally divided, in the mean time. Under this law, it was held, that the jurisdiction of the court over the subject matter of the proceedings, did not depend on the fact, that one of the heirs was of age, but attaches when the ancestor dies intestate, and any of the persons entitled to his estate is a minor : that the fact of the majority of one of the persons entitled, could only become material, in case the land was not susceptible of a division, without injury or loss to the parties. If it could be divided without injury, the commissioners were required to divide it, although all the heirs were minors. The materiality of the inquiry, whether any one of the hefrs was of age, was altogether contingent, and might never arise. And at all events, must depend upon the report of the commissioners, whether or not the property might be divided without injury. This must necessarily, therefore, be an inquiry arising in the course of the proceedings, and after the jurisdiction of the court attached.

The court in Thompson vs Tolmie, in determining what facts give jurisdiction under the statute of Maryland, go quite beyond what the present case requires us to decide, and consequently very fully maintains the jurisdiction of the Orphans’ court of Mont-> gomery.

Though the act of eighteen hundred and twenty, makes it the duty of the judge of the Orphans’ court, to appoint commissioners, with a view to a division and distri bution of the intestate’s estate, within three months . after the administrator shall have represented it solvent, yet there is no express inhibition of the court to act, without such representation from the adminisr-trator. And if the court appoint commissioners to divide the estate, we will not say, that the administrator may not arrest its action, — he certainly may, if the estate be insolvent, by so representing it, conceding, ex gratia, argumentó, that this initiatory step of the court, in order to its regularity, must be preceded by a report of solvency, it lies with the administrator to ob-r ject the want of it in abatement of the proceedings, "and does not concern the interests of any one else.— In the present case, the record discovers that the administrator had notice of the appointment of the commissioners, for he presented to the court, their report, shewing the impracticability of making an equitable division of the real estate of his intestate — and acts himself, as commissioner, in executing the order of .sale. Having done thus much, he impliedly admitted the sale of the lands to be unnecessary, for the payment of debts, and could not, thereafter, be heard to object, in any form, to the regularity of the proceeding of the Orphans’ court. The jurisdiction, then, being clearly maintainable, under the act of eighteen hundred and twenty, and as that is all we propose to shew, the strict conformity of the proceedings to its provisions, so as to relieve them from any valid objection on appeal or writ of error, need not be consider^ ,ed.

3. The jurisdiction of the Orphans’ court being shown, we are next to inquire, whether its proceedings can be collaterally impeached. In regard to proceedings in the ordinary course of law, it has been invariably holden, that the judgment of a court, having jurisdiction of the parties, and the subject matter, is conclusive upon parties and privies ; and this, though the / record may abound with irregularities, which would authorize its reversal by a revising court. — Newell vs Newton; Hale vs Williams; Mills vs Duryee Hampton vs McConnell; Young vs Gregory; Messier vs Amery; Hopkins vs Lee; Barr vs Gratz; Hughes vs Blake; Wrightvs DeKline; Homer vs Fish et al. Livermore vs Herschel et al. ; Saxton vs Chamberlain; Smith vs Lewis; Smith vs Sherwood; Ryer vs Atwater; Bigelow vs Stearns; McDowell vs Van Benson; Mather vs Hood; Borden vs Fitch; Thatcher vs Gammon; Smith vs Whiting; Jacobs vs Hall; Green vs Sarmiento; State vs Wakely; Hess vs Heebie; Platner vs Best; Young vs Black.

It may then be assumed, that “ the whole current .of authorities, recognise the principle, that where a ..cause has been instituted in a proper forum, where all matters of defence were open to the party sued, the judgment is conclusive, until reversed on error,” upon 'the maxim de fide et officio judicis non rcciptur qucestio. And indeed a different course of decisiori would have gone to place in uncertainty the rights of meum and tuum,. and overturned the land-marks of property, the settlement of which, was a cardinal .object in the formation of the social compact. The sentences of courts, if liable to be incidentally revised, and set aside would so impair their efficacy, as greatly to detract from the dignity of the tribunals of justice. Interest reipublicce ut sit finis litiwn, is a salutary maxim, — while it would .establish upon a firm basis, the interests which society proposes to protect, it imparts respectability to the the institutions of the country.

In Rose vs Himely, it is said, if a judgment be merely irregular, the courts of the country pronouncing the sentence, were the exclusive judges of that irregularity, and their decision binds the world: if coram non judice, the sentence is as if it never was pronouced.— So, in Kempe’s lessee vs Kennedy, in speaking of a court whose judgment is attempted to be impeached, the Supreme Court of the United States say, the judgment it gave wás erroneous, but it is a judgment, and until reversed, can not be disregarded-

• A decree in Chancery, directing the sale of real estate, when collaterally drawn in question, can not be impeached; nor is a purchaser bound to look beyond it, if the facts necessary to give jurisdiction appear on the face of the proceedings.

In Windham vs Windham; an indirect attack was made on a sale under the decree of a court of equity; whereupon the Lord Keeper remarked, “ You blow up with gun-poiuder, the whole jurisdiction, if such a pur-chassr is not protected. — See also Kitely vs Lamb.

The orders of an Orphans’ court, though not obtained by the prosecution of a suit in the ordinary form of procedure, are assimilated- to a judgment, and conclude all previous irregularities. And in Selin vs Snyder it was decided that the Orphans’ court, acting within its jurisdiction, had power to grant the order for a sale of the real estate of the intestate — that the purchaser is bound to look to the jurisdiction, and if this is shewn by the record, it is not allowable to-dispute its verity, and thereby defeat the purchase.

In McPherson vs Cunliff, et al. in which the validity of an order of sale came collaterally in question, the doctrine is advanced, “ that where there is a direct sentence on the very point, such is to be received as conclusive evidence, not to be impeached from within, but like all other acts of the highest judicial authority, is impeachable from withoutand it is not permitted to shew that the court was mistaken in the original action; it may be shewn that they were misled by some collusive act between the parties: and this was decided by the opinion of all the Judges of England, in the Duchess of Kingston’s trial, in the House of Lords” Here is a direct assertion of the conclusiveness of' judgments upon all matters which were or are supposed by the record to have been before the court: these having passed in rent adjudica-tam, are not subject to revision by any indirect proceeding, and can only be reversed or set aside by an appellate court. But it is competent to impeach a judgment for fraud, when collaterally drawn in question; because proof shewing collusion, does not contradict the record, but is in itself the introduction of something extrinsic.

So, in the case of The Town of Canaan vs The Greenwood Turnpike Company, Trumbull, Judge, in delivering the opinion of the court, said — “A judgment, decree, sentence, or order passed by a court of competent jurisdiction, which transfers, creates, or changes a title, o.r any interest in estate, real or personal, or which settles and determines a contested right, or which fixes-a duty on one of the parties litigant, is-not only final as to the parties themselves, and all claiming by or under them, but furnishes conclusive evidence to all mankind, that the right, interest or duty belongs to the party to whom the court adjudged it.”

In Getvis and Wife vs Brown, et- al, the decree of a court of ordinary, revoking the probate of a will, was held to be the judicial act of a court possessing jurisdiction over the subject matter. And the exercise of this 'right was held so inviolable, that evidence would not be permitted to contradict the matters adjudged, but it could only be set aside upon appeal. — 1 To the samé effect is Scott vs Hancock.

In Mooers vs White, chancellor Kent approves the doctrine of the conclusiveness of an order of sale, and places his opinion upon the competency of the jurisdiction of the court making it. .So, in The heirs of Ludlow vs Johnston, it was determined, that where the court making an order of sale had jurisdiction, a collateral inquiry will not be allowed to shew whether its jurisdiction was improperly exercised. Though the order be unadvisedly or erroneously made, the purchaser has acquired rights he cannot be divested of, by any indirect proceeding; and so far as the interests of purchasers are concerned, it is considered equally available as a judgment. And to the same effect is Sumner vs Parker, where, examining the conclusiveness of a decree of a judge of probate, the court remark, that if within the sphere of his authority, the judge mistakes the application of the law, the decree is voidable, and may be reversed by an appellate tribunal; and is in force, until its reversal. But if a decree be made upon a subject, without the jurisdiction of the judge, it needs no reversal, it is void. And in Wales vs Willard, the distinction between void and voidable judgments, is clearly recognised.— So, Perkins vs Fairfield, is a direct authority to shew that a title acquired, by purchase made on sale, under an order for the sale of the real estate of an intestate, is valid, if the court making the order had jurisdiction, though its proceedings are erroneous. — To S. P. see Elliott et al. vs Peirsol et al.

In Thompson vs Tolmie, the decision in McPherson vs Cunliff, is cited with approbation, and the court reaffirm the doctrine, that where there is a fair sale, and the decree executed by a conveyance from the administrator, the purchaser will not be bound to look beyond the decree, if the facts, necessary to give the court jurisdiction, appear on the face of the proceedings. After a lapse of years, presumptions must be made in favor of what does not appear. And further, “ the decree of an Orphans’ court, in a case within its jurisdiction, is reversadle only on appeal, and not collaterally, in another suit.”

The same court, in the case of Voorhees vs The United States Bank, again declare, that the errors of a court do not impair the validity of its judgments ; and that any objection to its. full effect, when impugned by an indirect proceeding, must go to the authority under which it was rendered. If a court usurps jurisdiction, its ac i is void; but if, in the exercise of a lawful power, it errs in judgment, its acts are merely voidable, and remain in full force, until set aside by a revising tribunal. The Orphans’ court, in the exercise of its authority over the real estate of an intestate, has been assimilated to a court of equity. Considering the manner of its procedure, and the extent of its discretion over the subject, the comparison is not perhaps entirely inapt.

No injury can result from the conclusion, that the jurisdiction being shewn, it is not competent to invalidate the order of sale, when introduced in evidence, as a link in the chain of title, — for an appeal, or writ of error is given by statute, “ from any judgment or order final, within vacation or term time” of the County court, to the Circuit or Supreme court. Let, then, the- review we have taken of the authorities, suffice to shew, that judicial sentences, whether designated as judgments, in the courts of law, decrees in Chancery, or orders of an Orphans’ court, if not founded in a usurpation of power, are conclusive, until reversed by a higher tribunal. We proceed now, to fortify this conclusion.

In the case of the Lessee of Goforth vs Longworth, it is held to be well settled, that courts give a liberal construction to statutes authorising sales of real estate by executors and administrators. Public policy requires that all reasonablé presumptions should be made in support of such sales, especially respecting matters in pais. The number of titles thus derived, and the too frequent inaccuracy of clerks and others concerned in effecting these sales, renders this necessary. If a different rule prevailed, purchasers would be timid, and estates consequently be sold at a diminished value, to the prejudice of heirs and creditors.

In favor of innocent purchasers, the cases cited from 2 and 10 Peters’s Reports, and 11 Sergeant & Rawle’s Reports, very fully maintain the same doctrine : and it is certainly compatible with the purest principles of justice. Who would consent to become a purchaser at such a sale, if he was to be made responsible for every irregularity in the proceedings of the court that ordered it?

Ágain: the rules of law are in general so framed, as to favor the fair purchaser. If a judgment is reversed, for error in the record, the defendant can only obtain restitution of the money, while the purchaser shall hold the property sold for its satisfaction.

So it has often been made a question, whether a bona fide purchaser of land, under an execution issued upon a judgment which had been paid, but no satisfaction entered of record, would not be protected in his purchase. Ásale under an irregular execution, which is merely voidable, passes title to the purchaser. — Blaine vs the “ Charles Carter."

It remains to examine more particularly the legal correctness of the charge given, as well as the refusal of that asked, in the Circuit court.

1. The instruction given asserts in the first place, that if the administrator sold the real estate of his intestate, without givingbond to sell according to law, his proceedings were absolutely void. The thirtieth section of the act of eighteen hundred and three requires, that the personal representative before he obtains the order of sale from the clerk of the Orphans’ court, shall enter into bond with sufficient sureties &c. This is the only statute which inquires such a bond, and was, of course, in the contemplation of the judge, when he gave the charge. The omission to execute this bond cannot be held to avoid the sale. It is made the duty of the clerk to require it, before he famishes the administrator with a copy of the order ; but if regardless of this requisition of the act, he issues a copy, an innocent purchaser can not be prejudiced. The purchaser is not to supervise the clerk, in the performance of his duties, but may well infer the execution of the bond, from the fact that he has furnished the administrator with the warrant for a sale.

2. The second head of the charge is not very intelligible. If it be understood as asserting, that every thing necessary to legitimate the action of the Orphans’ court, should appear of record, or else the proceedings of that court were void, our views upon ano™ ther branch of the case, negative its correctness. But if the court intended to say, that the facts necessary to give jurisdiction, should appear of record, or else the proceedings were coramnonjudice, and of consequence, void, it was clearly right. —Kempe vs Kennedy; Stanley vs Bank of America; McCormick vs Sullivant; Life vs Mitchell; Williams vs Blunt, Shivers vs Wilson et al. Wickes vs Caulk; Thatcher vs Powell; It is needless to undertake an interpretation of the meaning of the judge, as the judgment, without reference to this part of the charge, can not be sustained.

3. The bill of exceptions states that the defendant below moved the court to instruct the jury, that if they believed that the County court had jurisdiction of the subject matter, a defect in the notice and publication of the time of sale rendered the proceedings only voidable, and binding until reversed. This instruction was refused, and the court charged the jury, that all the requirements of the statute in such case, must appear of record, and in their, absence, the proceedings were absolutely void. There is certainly no error in the refusal to give the instruction asked, — for there was no evidence as to the notice of the time .of sale; and the opinion which the court was required to express, could have had no influence upon the verdict of the jury, but was abstract and irrelevant.

Again : The motion for an instruction supposes that it is immaterial how the sale was conducted, if the court decreeing it, had jurisdiction of the subject matter of the proceeding, in this view, it is believed that it should have been denied. If the authority of the court is shewn of record, any subsequent irregularity in its action, would not make the decree void, but, at most, merely voidable. Yet, if the decree (as it should do) prescribes certain formalities, preparatory to the sale, they must be observed, or the authority to sell can not be well executed.. Where particular forms are pointed out, for the execution of a power, however immaterial they may appear, in themselves, these forms are considered as conditions, the observance of which can not be dispensed with. — Nixon vs Hyserott; Hunt vs Chamberlains ex’ors; Denning vs Smith; Hudson vs Hudson; Combe vs Brazier. An authority to an administrator to sell the estate of his intestate, is a personal trust, and must be strictly pursued.—Bryan et al. vs Hinman; Lockwood vs Sturdevant; Berger et al. vs Duff. So also is an authority given to an executor, by will, to sell. — Pendleton and wife vs Fay et al.

It is necessary, then, that the administrator should do every thing required by the order to be done, previous to the sale, or the sale passes no title. But the purchaser can not be prejudiced by the omission of an administrator to perform any act, after the sale.— The interest acquired by his purchase can not be lost by a failure to make a return to the Orphans’ court, of the proceedings .under the order.

4. The last instruction complained of, is substantially this, that unless the sale of the lot in controversy, was conducted agreeably to the act of eighteen hundred and twenty-two, governing the sale of intestates’ estates, the title of the heirs was not divested; and that that act repealed all others of a previous date, on the same subject, so far as they were in conflict. — We have already shewn, that the acts of eighteen hundred and eighteen and eighteen hundred and twenty, are in harmony with that of eighteen hundred and twenty-two, so far as they confer jurisdiction upon the Orphan’s court. The statute of eighteen hundred and three, so far as it; gives authority to that court, to direct the sale of lane!, is impliedly repealed by that of eighteen hundred and twenty-two, yet the mode of procedure it provides, still continues in force, and is applicable to proceedings under the acts of eighteen hundred and eighteen, and eighteen hundred and twenty, — and the charge maintaining the reverse, can not be sustained.

The'form in which some of the. instructions were asked and given, seems to us to have been objectionable, by referring questions of law to the jury : yet, as it can subserve no purpose, we deem it unnecessary to particularize them.

We are aware, that in this opinion, we run counter to some of the reasoning and conclusions of this court, in the case of Wiley Gayle vs White & Lesley which was twice here. The very great respect we entertain for the learning of the Judges who concurred in the opinions, in that case, and the propriety of upholding the doctrine of stare decisis, have induced us to give to this case a more careful and elaborate examination. Principles, the opposite of those we have stated, would be productive of the severest and most extensive injury. It is impossible to conjecture the vast amount of property holden under sales, made by order of an Orphans’ court; and we all know, that in at least three fourths of the cases, the records are remarkable for their want of technicality and legal precision. Let the rule be established and continued, which requires the record to disclose every material fact, and which makes indispensible to the passing of title, publication of the petition to sell, the return of the sale, the execution of a bond by the administrator, to the Orphans’ court, and every thing else which the statute prescribes as preparatory to a decree, and a large majority of the titles acquired through such a channel, would be overturned. In questions of doubt, arguments drawn ah inconvenienti, deserve great consideration — yet we need not invoke their aid in this case, for authority is full, to sustain every point we have determined.

It is worthy of remark, that the distinction between void and voidable judgments, seems not to have been considered'in the case of Wiley & Gayle vs White Lesley; but it is assumed that the proceedings of the Orphans’ court may be collaterally impeached, for an omission to disclose, by its record, an observance of every thing enjoined by statute, upon the ground that it is a court of limited jurisdiction. This reasoning-only proves the order to have been voidable, if the authority of the court was shewn, and could hold good, on an appeal or writ of error — but does not shew, that it was voider se,'so as to subject it to an indirect attack.

The views already expressed, relive us from a more extended review of the case last cited; and without attempting to recapitulate, it remains but to declare, that the judgment must be reversed and the cause remanded.

GOLDTHWATTE, J, not sitting iu this cause,

      11 Rep. 63, Dyer R. 347.

       3 Term Rep. 569.

      6 Cowen R. 437.

      1 Gall R. 150; 3 Serg. & R. 185; 4 Gill &. Johns. R. 1.

      11 Serg. & Rawle, 430.

      4 Craneh. 378; 1 Paine’s E. 62-6.

       9 Mass. R. 462.

      2 Peters R. 165.

       To S. P.—see 11 Sergt. & Rawle’s R. 430, 431.

      10 Pick. Rep. 470.

      6 “ “ 232;

      7 Cranch, 483.

       3 Wheaton Rep. 134.

       Hall’s Rep. 446.

       1 Yeate’s Rep. 533; 2 Dall. R. 64.

       6 Wheaton’s Rep. 109.

       4 “ “ 213.

      1 Mason Rep. 515.

       1 Peters’s C. C. Rep. 199.

      1 Pick. R. 435.

       3..33

      6 “ “ 223.

      3 Johns.R. 157; 1 Johns. C. R. 322.

      4 Conn. 276.

      4 432.

       19 Johns. Rep. 39.

      12 “ “ 356.

      8 “ “ 44.

        5 “ “ 121.

       12 Mass. Rep. 268.

         11 “ “ 445.

       12 “ “ 25.

         1 Peters’s Rep. 74.

       2Nott & M’Cord, 410.

         6 Sergt. & Rawle. 57.

       11 Johns. Rep. 630

       7 Cranch. 567.

      4 Cranch, 278.

      5 “ 186.

       To S. P. 11 Mass. R. 229.

      3 Ch. Rep. 12.

       2 “ " 405.

      11 ;Sergt. & Rawle, 436.

      7 Serg. & Rawle, 166.

      11 Sergeant & Rawle’s Reports, 437.

      9 State Trials, 368.

       1 Conn. Rep. 1.

      1 Nott & M’Cord, 329.

       13 Mass. R. 162.

      6 Johns. Ch. R. 384.

      3 Ohio Rep. 560.

       7 Mass. Rep. 79.

      2 Mass. Rep. 120.

       11 “ “ 237.

      1 Peters, 340.

      2 “ 168.

       10 Pelers, 474.

       4 Ohio Rep. 129.

      10 Peter’s Reports, 475; 6 Har. & Johns. R. 204; 1 Cow. R. 642.

       1 Cowen’s Reports, 622.

       4 Cranch's Reports, 328.

      1 Peter’s C. C. R. 30—36.

      4 Dall. R. 11.

      10 Wheat. R. 192.

      2 Yerger’s Rep. 400.

       2 Mass. R. 213.

       5 Har. Johns. R. 130.

      5 “ “ 36.

       6 Wheat. R. 119.

      5 Johns. R. 58.

       3 Hall’s R. 336.

       3 Johns. C. Rep. 344.

      6 Munf. R. 352.

       2 Dess. R. 431; Sug. on Pow. 364.

      5 Day’s R. 211.

       6 Conn. R. 373.

       4 Johns. C. 368.

       2 Paige’s C. R. 202.

      5 Day's Ropoits, 211; 1 Dali Reports, 486; 5 Wheeler’s Ab. 258.

      2 Stewart’s Reports, 331 ; 3 Stew. & Porter, 355.


source: Caselaw Access Project

author: ORMOND, J.

license: Public Domain

text:
    LEE vs CAMPBELL et al.
    [The decision of the court in this case was similar to the decision in the case preceding. See the opinion of the court.]
    Error to the Circuit court of Montgomery county.
    Trespass to try title. At the March term of the Circuit court of Montgomery county, in the year eighteen hundred and thirty-four, David Campbell, Eliza Campbell, Robert Fountain and Emily, his wife, the said David, Eliza and Emily, being children of Archibald Campbell, deceased; also, Archibald Campbell, Maria Campbell,, and Mary Campbell, who are likewise children of Archibald Campbell, who had departed this life before the commencement of this suit, — the three last named being minors, and suing by their next friend, David Campbell, declared against Henry P. Lee, of a plea of trespass to try titles, &c. For that, the said plaintiffs, on the twenty-third day of May, in the year eighteen hundred and twenty-seven, in the county aforesaid, were seised in their demesne, as of fee, of certain lots or parcels of land, situate, lying and being in the town of Montgomery, in the county and State aforesaid, known and described in the said town, as lots, numbers eighteen, nineteen and twenty, on the South side of Washington street. And that, afterwards, to wit, on the day and year aforesaid, the said defendant, with force and arms, broke and entered into the said premises, so situate as aforesaid, and did then and there eject and expel the said plaintiffs from the same, and the possession thereof, had detained, from thence to the commencement of the suit — to the great wrong and injury of the plaintiffs, and against the peace, &c.
    And. .also, for that the plaintiffs, on the first day of January, in the year eighteen hundred and twenty-seven, were seised in their demesne as of fee, of c er-tain lots or parcels of land, situate, lying and being in the county aforesaid, known as lots, numbers eighteen, nineteen and twenty, on the South side of W ashing-ton street, of the town of Montgomety, in the county and State aforesaid, together with one Susan Campbell, by virtue of descent, as heirs at law of Archibald Campbell, who died intestate, — and that being so seized as aforesaid, afterwards, to wit, on the twenty seventh day of August, eighteen hundred and twenty-seven, the said plaintiffs, and said Susan were ejected, expelled and disseized of the said premises, by one John Harper, with force and arms, to wit, in the county aforesaid, who entered upon the same, and afterwards conveyed the same to one John Falconer, who was seized and jsossessed thereof; who afterwards, to wit, on the first day of January, eighteen hundred and thirty, conveyed the same to the defendant, who became seized and possessed thereof, and had enjoyed the rents and profits of the said land, and remained in possession thereof from thence hitherto. And the plaintiffs averred, that after the expulsion and’disseisin aforesaid, the said Susan Campbell died intestate, leaving three children. Wherefore, by reason whereof, an action had accrued to the said plaintiffs, to have and demand of the said defendant, six-sevenths undivided parts of the said premises, of which he had so detained the possession from the plaintiffs, to their great wrong and injury, and against the peace and dignity, &c.
    To this declaration defendant pleaded non culpa-bilis, and liberum tenemenium, — and upon these pleas issues were joined.
    And at March term of the same court, eighteen hundred and thirty-seven, upon the trial of the case, the following proceedings were had.
    The plaintiffs introduced a patent from the United States, which included the lots in controversy, to John Falconer. They then introduced a deed from John Falconer, the patentee, to Archibald Campbell, which was duly acknowledged and recorded, and to the admission of which no objection was taken. They then read another deed from John Falconer to Archibald Campbell, duly acknowledged and recorded, and to which no objection was taken, for part of the lands described in the patent. • The plaintiffs then read a paper, signed by the counsel, of record, of the defendant, to the effect following: That it was admitted, in this case, and was always, hereafter to be admitted, that the plaintiffs were the heirs of Archibald Campbell, deceased ; that Archibald Campbell died seized of the premises described in the declaration. That at the time David Campbell made application for his share, he was of age, but that the other heirs were minors. That Harper, who conveyed, was the administrator of Archibald Campbell, and that the proceeds of his sale of the lots were duly accounted for and distributed. It was also admitted that the defendant was in possession of the premises sued for, before action brought, and that the premises set forth, were situated in the town of Montgomery, in the county stated. That the estate of Archibald Campbell was solvent. That, at the time of the sale by the administrator, John Harper, he was guardian of all the minor heirs of Archibald Campbell, and that the lots brought a fair price, at the time they were sold by him. These admissions were in writing, and signed by the counsel of plaintiffs and defendant, respectively. The plaintiffs here closed their testimony.
    The defendant then read from the minutes of the Orphans’ court, an order to the following effect: “ That on application of David Campbell, setting forth that he was one of the heirs and legatees of Archibald Campbell, deceased, and' entitled to a distributive share of said estate, and praying to have his distributive share of said estate allotted to him, and it appearing to the satisfaction of the court, that the said estate was solvent — it was, therefore ordered by the court, that a writ of distribution should issue to William Y. Higgins, Gardner R. Brown, George Whitman, John Goldthwaite and William Sayre, or any three of them, who were required to make distribution of the estate of Archibald Campbell, deceased, among the legatees, or legal representatives of the said Archibald Campbell, deceased. It was further ordered, that the commissioners certify their acts and doings under their hands and seals, and return the same to the court within six months. This order bore date on the eleventh day of April, eighteen hundred and twenty-seven. They further read from the minutes of the proceedings of said court of the twenty-third day of April, eighteen hundred and twenty-seven, an order, to the effect following: “ That John Harper, administrator of the estate of Archibald Campbell, deceased, had come and filed a return of the commissioners theretofore appointed to make distribution of the said estate of the said Archibald Campbell, deceased, among the legatees and legal representatives, from which it appeared, that a division could not be effected, without manifest injury to the said legatees; — it was therefore ordered by the said Court, that three weeks’ publication should be given, in the ‘Alabama Journal,’ for all persons, interested in said estate, to appear at a regular Orphans’ court, to be holden on the third Monday in May then next, and shew cause, if any they could, why the lands belonging to said estate should not be sold. They then read from the minutes of the same court, of the twenty-first day of May, eighteen hundred and twenty-seven, an order to the effect following: That it appeared, to the satisfaction of the court, that three weeks’ publication had been given in the ‘Alabama Journal,’ for all persons interested in the estate of Archibald Campbell, dec., to appear and shew cause why the lands belonging to said estate should not be sold, and there being no objection to the same, — it was therefore ordered by the said court, that John Harper, administrator of said estate, proceed to sell all the lands or lots, belonging to the estate of the said Archibald Campbell, deceased, on a credit of twelve months, to the highest bidder, after having given notice by setting up advertisements in three public places, in said county, and publishing said advertisement in the Alabama Journal, for three weeks, successively, before such day of sale.
    It was further ordered, that the said John Harper, administrator as aforesaid, enter into bond and sufficient security, that he would observe the rules and directions of law for the sale of real estate by administrators, and that he would well and truly account for the proceeds of said sale. It was further ordered, that the said John Harper, administrator, as aforesaid, make a return of the proceeds of said sale, within three months. The defendant then read a return made by John Harper, sworn to before the clerk of the Orphans’ court, shewing that lots nineteen and twenty, on the South side of Washington street, of said town of Montgomery — and which were admitted to be two of the lots in question — were sold to Andrew Dexter, — one for twenty-two dollars, and one for sixteen dollars. This return shewed, that the lots were sold on the sixth day of August, eighteen hundred ■and twenty-seven, on a credit of twelve months.— They read from the minutes of the proceedings of ■said court of the second Monday in September, eighteen hundred and twenty-seven, an order, that on that day, John Harper, administrator of the estate of Archibald Campbell, deceased, came and returned an account of the sales of the real estate of the said deceased, which was examined, approved, and ordered io be recorded.

      The defendant then read a deed from John Harper to Andrew Dexter, a copy of which was attached to the minutes; to the execution of which no objection was made, but the same was read without objection. They then read orders from the minutes of the County court, of the thirtieth day of October, eighteen hundred and twenty-five, shewing the appointment of .John Harper, to be guardian of Eliza Campbell, Ann Maria Campbell, Mary Campbell, and Archibald Campbell. The defendant then closed his testimony- ■
    The plaintiffs admitted the truth of the defendant’s testimony, and offered to admit upon the record any inferences of fact, which the court might fairly think deducible from it; and the plaintiffs said that the matters aforesaid — to the jurors who had been duly summoned, elected, and sworn to try the issues joined between the parties aforesaid, in manner and form aforesaid, shewn in evidence by the said defendant— were not sufficient, in law, to maintain the issue joined on the part of the said defendant; and that they the said plaintiffs, to the matters aforesaid, in form aforesaid, shewn in evidence, had no necessity, nor were they obliged by the law of the land to answer, and the said plaintiffs prayed judgment, and that the jury aforesaid might be discharged from giving any verdict upon the said issues, and that their damages, by reason of the premises within mentioned, might be adjudged to them.
    And the defendant objected to the discharge of the jury, and insisted that, by the law, he was not compelled to join in the plaintiffs’ demurrer to the evidence of the defendant; but the court ordered, defendant to join in demurrer or waive his evidence; whereupon he joined in demurrer, by order of the court as afore-? said.
    And at a special term of the Circuit court of Montgomery county, held on the twenty-fourth day of November, eighteen hundred and thirty-four, came a jury, who being sworn to try the issues joined between the parties aforesaid, said they found that defendant had failed to prove to the satisfaction of the jury—
    1st. That the administrator had given bond, in compliance with the requisition of the law.
    2d. That he had failed to prove the requisite notice ' and publication.
    3d. That he had failed to prove the requisite citation to the heirs.
    4th. That he had failed to prove the appointment of guardians to the minors.
    5th. That he had failed to prove the appointment of commissioners.
    6th. That he had failed to prove that the commissioners conveyed the title to the property in question; but op the contrary, that it was conveyed by the administrator.
    If, in the opinion of the court, such failures totally invalidated and made void such conveyance, then the jury found for the plaintiffs, for lots numbers eighteen, nineteen, and twenty, otherwise, for lot number eighteen only; and assessed damages at one cent.
    And thereupon, all the premises being seen and considered by the court, and mature deliberation being thereupon had — It was considered by the court, that the law arising on the facts, found by the jury in the special verdict, was with the plaintiffs : it was therefore further considered, that the plaintiffs recover of the defendant, the said lots of land, numbers eighteen, nineteen and twenty, as described in their declaration, on the south side of Washington street, in the town of Montgomery, and that they should have a writ to recover possession of the same, together with the damages by the jury assessed, and the costs of their suit in that behalf expended.
    And on the second day after the discharge of the jury, and after they had rendered their verdict in the cause, the plaintiffs moved the court that a minute of the evidence be made, and a transcript of all the evidences of title produced by plaintiffs and defendant, on the trial of the cause taken, and that the said minute of evidence, and the transcript of deeds and other evidences of title, should form part of the record in the case, and taken as a portion of the proceedings, in order that the application of the finding of the jury in the case, and the judgment of the court might appear of record, and be perfectly understood ; which motion was opposed by defendant, who refused to join in making the minute aforesaid ; but the court granted the motion of plaintiffs, and ordered that the minutes of evidence, and the transcript of the deeds, and other evidences of title, should be taken as part of the record and proceedings in the case submitted by the . plaintiffs.
    And at September term of the same court, eighteen hundred and thirty-six, came a jury, who being elected, &c. on their oaths, said they found for defendant: it was therefore considered by the court, that the defendant go hence without day, and recover of the plaintiffs his costs, &c. And on motion of the plaintiffs, it was ordered, that the verdict given in the case, and the judgment rendered thereon, should be set aside, and a new trial granted.
    And at the March term of the same court, eighteen hundred and thirty-seven, came the parties, and a jury, who being elected, &c. well and truly to try the issue joined between the parties — but after the evidence as well for the plaintiffs'as for the defendant, was given before the jury, the plaintiffs filed their demurrer to the evidence, and prayed the discharge of the j ury ; to which demurrer, the court required the defendant to join ; which being done, the court, upon the motion of plaintiffs, (and stating the same to be taken at their peril — the practice being disapproved by the court,) required the jury, who had been duly sworn as aforesaid, to enquire of and assess the plaintiffs’ damage, by reason of the trespass in their decía-* ration stated, upon the evidence before them, conditioned upon the decision of the court’s being in favor of the plaintiffs, upon the demurrer to the evidence' aforesaid, — whereupon the jury aforesaid, upon their oaths, said they found for the plaintiffs, upon the condition that the court decided the demurrer in favor of the plaintiffs. And the court thereupon gave its opinion as follows:
    That in this case, it became material to enquire un« der which of the various acts of the legislature, relating to the subject, the proceedings in the Orphans’ court were instituted. By the fourth section of the act of eighteen hundered and three,, it was enacted, that when the real estate of an intestate should' descend to two or more children, one or more of whom being under age, the Orphans’, court, on application, might order and direct a division of such real estate; the metes and bounds of each share, to be ascertained by three or five indifferent freeholders, appointed by the court, and whose report, or that of a majority returned under their hands and seals, and approved and récorded by the court, should be conclusive on the parties ; provided the heirs not applying, or1 the guardian of those under age, had notice of the time and place of the meeting of the freeholders. The act of eighteen hundred and twenty, which was supplementary to the foregoing law, and to be taken in connection with it, required the Orphans’ court, after the estate was represented solvent, to appoint five commissioners, who, or a majority of whom, on oath, should make distribution of the estate, and return the same in writing, signed by them, and certified by the justice before whom the commissioners were sworn; provided, that when distribution could not be equitably effected, then the estate should be exposed to public sale; as heretofore.

      The act of eighteen hundred and twenty-two, made it lawful for the administrator to file a petition for the ■sale of the real estate, either for the purpose of paying debts or distribution. And the act of eighteen hundred and eighteen, provided for the sale of land, in preference to slaves, for the payment of debts, and for no other cause. And the twenty-eighth section of the act of eighteen hundred and three, provided for the sale of land for the payment of debts, when the personal jn'operty was insufficient: the court was, therefore, of opinion, that the proceeding in the Or-jrhans’ court was instituted under the foi'ty-third section of the act of eighteen hundred and three, taken in connection with the act of eighteen hundred and twenty. — For these were the only acts at that time, in existence, which authorised the heir to petition for a division or sale of the real estate of his ancestor : and they required that five commissioners should be appointed on the application of one or more of the heirs, and that notice should be given to the minor heirs or their guardian, of the time and place of their meeting: that before the application for division, the estate should be represented solvent, and that when the commissioners made their return on oath, and under their hands and seals, that the division could not be effected without manifest injury, then the estate should be exposed to public sale as theretofore. After these requisitions were complied with, and the commissioners had returned that division could not be effected without injury, the next inquiry was, what meaning was to be given to the expression — that then the estate should be exposed to sale as heretofore. As this expression contemplated the sale of both real and personal estate, the word “heretofore,” must be applied accoi'ding to the subject matter in hand. If the estate was pei'sonal, then the law in force, relating to the sale of pex-sonal property, when ordered by the Oi'phans’ court, ought to govern; but if real estate, then the laws relating to the sale of real estate, would he the only guide. At that time, the act of eighteen hundred and eighteen, and the twenty-eighth section of the act of eighteen hundred and three, were the only laws in being, which pointed out the mode and manner of selling the real estate of an intestate.
    By the act of eighteen hundred and eighteen, a citation was required to issue to all persons interested, and if not in the county, then notice was to be pub-, lished in some paper, for the parties to appear and shew cause why a sale should not be ordered, and such sale should vest in the purchaser the same title that belonged to the intestate: but the twenty-eighth section of the act of eighteen hundred and three, required the citation to issue at least forty days before the appearance day, and to be set up in three public places in the county, for the space of thirty days, and published during the same time, in a newspaper.— And section thirty-first of the same act provided, that the administrator should give at least forty days’ notice, by advertising in three public places, and by publication in a newspaper for three weeks in succession, before the clay of.sale. And the administrator was to sell to the highest bidder, make a deed to the purchaser, and take from him bond with security. And by the thirtieth section, the administrator was required, before obtaining the order of sale, to give bond with security, &c. The court was therefore of opinion, that they were to look to sections twenty-eight, thirty and thirty-one, of the act of eighteen hundred and three, to ascertain what were the next requisites, in obtaining the order and selling the land, after the commissioners had returned that the same could not be divided,- — for these served to make a more general provision, and were of larger application, than the act of eighteen hundred and eighteen. The court then inquired, whether there was a material defect in the proceeding before the commissioners made their return. It did not appear from the evidence that the minors or their guardians had notice ,of the time and place of the meeting of the commissioners; the minors consequently were not parties in court, when the return was made, and these were .deemed fatal, unless cured by some subsequent part' .of the proceedings.
    The next requisition was, that the citation should be set up at three public places, for the space of thirty days, and published, during the same time, in a newspaper, and issued at least forty days before the •time of appearance; and that before the administrator sold, he should give forty days’ notice, by advertising in three public places, and by publication in a newspaper, for three weeks, and- also give bond, &c. It was clear, that these very material requisitions had been complied with, in the present case. It had been paid, that the order of court, for the writ of distribution, the order of sale, and the order confirming the sale, were acts of a court of competent jurisdiction, and could not now be drawn in question collaterally or incidehtally, in a suit in this court.
    This was readily recognised, as the well settled law, where the subject was within the jurisdiction, and :the parties were properly brought into court. In the present case, the court had jurisdiction of the subject, but it did not appear that the parties in interest were regularly before the court. It did not appear that the minors or their guardian, at any stage of the proceedings, previous to the order of sale, had actual notice. And therefore, the court could not look behind the order or decree, for defects to avoid it — yet, if substantial defects were apparent on the face of the proceeding, or manifest error had intervened subsequent to the order or decree, it might be questioned, even in an incidental or collateral proceeding.
    The adjudication, in the case of Wiley vs Lane’s ¡gdrn’r, was believed to sustain that doctrine. The au.thorities were not in conflict with the conclusion the coux-t attained, and by them it was governed, how much .soever inclined to give judgment for the defendant, .who had the justice of the case with him.
    It was, therefore, considered by the.court, that the plaintiffs have the title to the premises, in their declaration mentioned, and that they have a writ of possession, to recover the same, and their damages assessed in manner and form aforesaid, together with their costs ■ .in that behalf expended.
    From this judgment there was a writ of error, and ■.the .plaintiff in error in this court, assigned for error — '
    1st. That the court compelled him to join in demurrer to the evidence, as appears in the record.
    2d. That the court erred, in giving judgment against him, as to lot number eighteen, in the declaration mentioned, when no evidence was given of title -to said lot.
    3d. That the court err$d, in giving judgment upon ■the demurrer to evidence, in favor of said David ¿Campbell, and others, for lots, nineteen and twenty.
    4th. Judgment ought, upon the demurrer to evidence, to have been given in favor of the defendant, in the court below.
    5th. Judgment ought to have been given for lots nineteen and twenty, in favor of defendant below.

      E. S. Dargan, for plaintiff in error.

      Campbell, contra.
   ORMOND, J.

Every point raised in this case, by •the assignment of errors, has been determined in favor of the plaintiff in error, in the case of Wyman vs The heirs of Campbell, determined at the present term .of this court. The judgment of the court below, must therefore, be reversed. But, as it appears from the record, that the plaintiff in error, (defendant be-•ow,) produced no evidence of title to one of the lots in controversy, viz: lot designated in the declaration, as number eighteen, judgment is rendered in this court, for that lot, in favor of the defendants in error.

GOLDTHWAITE, J., not sitting.


author: COLLIER, C. J.

text:
    COUCH AND ROBINSON vs CAMPBELL et al.
    1. The second section of the statute of eighteen hundred and eighteen, entitled “an act concerning judicial proceedings,” authorises the county court to proceed, on petition and citation to order the sale of land belonging to the estate of a deceased person, when the estate, or those entitled to inherit the same, would be less injured by a sale of the real property than slaves.

      2, The jurisdiction of the Orphans’ court over the real estate of an intestate is put in full exercise, when that court makes a n order for the issuance of a citation to the heirs, to shew cause why the same should not be sold, upon the suggestion of the administrator, for the payment of debts due by the intestate.
    See the case of Wyman vs Campbell, page 219 of this volume.
    Error to the Circuit court of Montgomery.
    Trespass to try title. At the March term, eighteen hundred and thirty-five, of said court, David Campbell, Eliza Campbell, Emily Fountain, and Robert Fountain, her husband, — -also, Archibald Campbell, Maria Campbell, and Mary Campbell, who sued by their next friend, David Campbell, being infants, under the age of twenty-one years, declared against .Edward W. Couch and Tod Robinson, — -for that, the plaintiffs, on the first day of December, Anno Domini, eighteen hundred and’ twenty-two, were seized in their demesne as of fee, of the messuage or close of land, situate in the town of Montgomery, in the county aforesaid, described as the Eastern two-fifths part of lot number three, on the South side of Monroe street, and of lot number three, on the North side of Market street, measuring on the front of each street, twenty feet, and running from street to street; and being so seized as aforesaid, the said defendants, on the fifth day of February, eighteen hundred and twenty-three, entered u|)on the said premises, and ejected and expelled the plaintiffs from the same, and the same had detained from thence hitherto, to the great wrong and injury of the plaintiffs, and against the peace and dignity, &c.
    And for that also, on the fifth day of February, An-no Domini, eighteen hundred and twenty-three, the said plaintiffs were seized as of fee, of that parcel of land in the town of Montgomery, county aforesaid, known as the eastern two-fifths of lot number three, on the South side of Monroe street, and the corresponding portion of lot number three, on the North side of Market street, measuring twenty feet on the front of said lots, and running from street to street, so as to form 'an oblong square. And being so seized, in manner and form aforesaid, the said defendants after-wards, to wit, on the first day of January, eighteen hundred and thirty-five, entered upon the said lands, and the said plaintiffs ejected and expelled with force and arms, and the same had detained from thence hitherto, to the great wrong, &c., and against the peace, &c.-
    To this declaration defendants pleaded non culpa-bilis and liberum tensmentum, and that the premises were sold and conveyed by an order of the County court of Montgomery county, by the administrator of Archibald Campbell, deceased, and that the same were bought by Benjamin Bradshaw, and a deed regularly made to him, by said administrator. Upon the two first pleas issues were taken, and to the last, plaintiffs replied nul tiel record.

    And at the March term, eighteen hundred and thirty-six, a jury came, who being elected, &c., on their oaths said, they found the eastern two-fifths part of lot number three, on the north side of Market street, in the town of Montgomery, Alabama, the premises described in the declaration of plaintiffs, to be the property of the plaintiffs, and that the defendants were guilty of the trespass, and assessed the plaintiffs 'damages at one cent: it was therefore considered by the court, that the plaintiffs should have a writ to obtain possession of said premises, and that they should recover of the defendants the damages assessed, together with their costs, &c.
    The bill of exceptions stated, that plaintiffs proved that a patent issued from the government of the United States to John Falconer, and a deed from him to Archibald Campbell, the ancestor of the plaintiffs, for the premises sued for, — and that the defendants were in possession at the time the suit was brought. The defendants then produced and read a petition to, and sundry orders of, the County court, which were made a part of the bill of exceptions. They also read in evidence, advertisements published in a newspaper, in Montgomery, giving thirty days notice of the time and place of the sale of the premises in question, and read a deed for them, made under the said orders, by A. Finley, the administrator of Campbell, to Benjamin Bradshaw, under whom the defendants claim title. They further proved by the administrator, (he having been examined as a witness by the plaintiffs, by whom they had proved that they were minors at the time of the sale,) that the sale was bona fule and fair : that the purchase money had been punctually paid, and was by him applied, according to law, to the purposes of said estate, — that he had ceased to be administrator of said estate, and had made a final settle-^' ment thereof.
    The Court charged the jury, that the Supreme court had determined the County court to be a court of special and limited jurisdiction, and afi the facts necessary'to give it jurisdiction, must appear on the record. Two points had been taken by/plaintiffs,— first, that the plaintiffs had no notice of the pendency of the proceedings in the County court: second, that the bond required of the administrator, faithfully to account for the proceeds of the sale, was not given. The court charged, that the jury must find that notice was given to the heirs of Campbell, before they would be affected by the record, — and that the recital in the order of the county court, that all parties interested had had due notice, was not sufficient evidence of the fact, that notice had been given, to make them parties to the record. The court charged, that the second point was equally well taken. If the jury found that no bond had been given in the case — although a faithful administration of the proceeds may have been rendered — yet the rights of the plaintiffs had not been divested. To all of which defendants excepted, &c.
    The petition to the County court, appended to the bill of exceptions, stated to the County court, that the administrator of Archibald Campbell had made sale of all the personal estate of the intestate, except the negroes, which were of great advantage to the heirs, as the money applied from the hire, was appropriated to the support of the heirs; that the money arising from the sale of the personal estate, was not sufficient to pay the debts; that the lots brought in nothing: that a sale of the negroes would injure the heirs, and a sale of the lots would enable him to pay the debts, without being an injury immediately to the heirs.— He therefore prayed for an order of sale of the lots— a citation to the heirs, &c.
    On the hearing of the petition, citations were ordered to issue to all the persons interested, to shew cause why an order should not be granted.
    And at December term of the Orphans’ court, eighteen hundred and twenty two, it appeared to the satisfaction of the court, that the parties interested, had due notice to appear at that term, and shew cause why the real estate of Archibald Campbell, deceased, should not be sold, in preference to the slaves, and had failed to appear. It also appeared, to the satisfaction of the court, that a sale of the real estate would be less injurious to those interested, than a sale of the slaves:
    It was, therefore, ordered that the administrator sell the real estate, (including the lot for which the action was brought,) to satisfy the debts against the estate. It was further ordered, that the administrator return the amount of the sale within three months, to the court.
    And on the fifth day of February, eighteen hundred and twenty-three, the administrator returned, under oath, that he had, on the same day, sold to Benjamin Bradshaw, the highest bidder, four-fifths part of lot number three, on the North side of Market-street, and four-fifths part of lot number three, on the South side of Monroe street, all in the town of Montgomery, belonging to the estate of Archibald Campbell, deceased, — which return was received and placed on the records of the court.
    And at the present term of the Supreme court, the plaintiffs in error, assigned the matters contained in the bill of exceptions, for error, and prayed that the judgment below, might be reversed, &c.

      Dargan and Thorington, for the plaintiffs in error.

      Campbell, contra.
   COLLIER, C. J.

This was an action of trespass to try titles, brought by the defendants in error against the plaintiffs, in the Circuit court of Montgomery. The pleas were, “ not guilty, liberum tenementum,” and a special plea, that title was acquired by purchase of an administrator, under an order of sale, made by the County court of Montgomery.

On the trial, it appeared that the administrator of the estate of the ancestor of the defendants in error, petitioned the County court for an order to sell certain real estate of his intestate, (of which that now in controversy is a part,) upon a suggestion, that it was necessary to sell either slaves or land, in order to pay the debts of the intestate, and that the heirs would be less injured by a sale of the latter, than the former.— On the exhibition of the petition, the judge of the County court directed citations to issue, to all parties interested, to appear, &c. and shew cause, if any there was, why the land should not be sold.

At the return of the citation, an entry was made, reciting, that the parties interested had had due notice, and that they failed to shew cause as required : whereupon the court being satisfied of the truth of the al egation, that the heirs would be less injured by a sale of the land, than the negroes, ordered that the real estate described in the petition, be sold by the administrator, and due return be made thereof.

The judge of the Circuit court, in his charge to the jury, assumed, that the proceedings of the County court might be collaterally impeached, and that, unless certain facts, such as the execution of a bond, by the administrator, faithfully to account for the proceeds of the sale, &c. appeared of record, the title of' the heirs was not divested.

The only question which we need now to decide, is whether the County court had jurisdiction oí' the case stated in the petition. The second section of the statute of eighteen hundred and eighteen, entitled “an act concerning judicial proceedings,” expressly authorises the County court to proceed, on petition and citation, to order the sale of land belonging to the estate of a deceased person, when the estate, or those entitled to inherit the same, would be less inj ured by a sale of the real property, than the slaves. It is clear that the jurisdiction was put in full exercise, if not earlier, at least when the court recognised the petition and made its order for the issuance of citation. This conclusion is fully sustained by the opinion of this court, in Wyman vs Campbell; and consequently, a further examination of this case is rendered unnecessary.

The judgment is reversed and the cause is reman-.-ded.

GOLDTHWAITE, J., not sitting..