
    Doe on the Demise of Hain and Others v. Smith.
    
      Tuesday, November 27
    Probate Courts are Courts of general jurisdiction.
    Where there is a variance between the original petition for partition on file, and the entry on the order-book as to persons made parties to the petition, the latter must be taken as the authentic exposition of the facts.
    In proceedings on an application for partition in the Probate Court, it is sufficient that the record state there was satisfactory evidence of due service of process or publication of notice.
    Judgments of Courts of general jurisdiction having jurisdiction of the subject matter, cannot be impeached collaterally for error therein.
    ERROR to the Vermillion Circuit Court.
   Smith, J. —

Ejectment for the west half of the north-east quarter of section No. 8, in township No. 18, in the county of Vermillion, and the west half of the south-east quarter of section No. 5, in the same township. There were eight demises; the first being laid as the joint demise of all the lessors of the plaintiff, and the others as the separate demise of each. The cause was submitted to the Court upon a statement of facts agreed to by the parties, and the judgment was in favor of the defendant.

It appeared that John Hain died seized of the premises in controversy in October, 1830, leaving the following named persons his children and heirs at law, namely: Jacob Hain, Samuel Hain, James Hain, Harriet Hain, Mary Hain, Elizabeth Mouser, married to Daniel Mouser, and Catherine Hansicker, married to George Hansicker. After the death of the father, and before the suit was brought, Mary married Francis Kendrick, Harriet married James Christy, Samuel died, leaving a daughter, Catherine, his only heir, and Elizabeth died, leaving Mary, married to William Gilbert, and Rebecca, James, John, George, Martha, and Sarah Mouser her children and heirs at law. The above named children of John Hain who were living, with the husbands of the married daughters and the heirs of those deceased, were the lessors of the plaintiff.

The defendant claimed title under a commissioner’s. deed, made pursuant to an order of the Probate Court of Vermillion county, and the case turned upon the question whether that deed, and the proceedings upon which it was based, were sufficient to divest the title of any or of all the plaintiff’s lessors.

It appears by the record of the Probate Court, that at the November term, 1833, Francis Kendrick filed a petition setting forth that he, together with Jacob Hain, George Hansicker, and Catherine, his wife, Samuel Hain, as guardian for James and Harriet Hain, minors, and Daniel Mouser and Elizabeth, his wife, were the legal heirs of John Hain, deceased, and joint owners of the following tracts of land, to-wit:

The south 40 acres of the east half of the south-west quarter of section No. 8, township 18, range 9.

The west half of the north-east quarter of section No. 8, township 18, range 9.

The west half of the south-east quarter of section No. 5, township 18, range 9.

The south 40 acres of the east half of the south-west quarter of section No. 7, township 18, range 9.

Also, 40 acres in range 10, the number not recollected, and that satisfactory evidence was before the Court, that due notice had been given of this application for partition, by publication in the “ Wabash Herald,” at least four weeks, successively, prior to the first day of the term, and that the Court, on said application, appointed three commissioners to make partition, &c.

At a subsequent term, the commissioners reported that the land was not susceptible of an equitable division, and the Court, thereupon, made an order directing them to sell the land at auction, after giving notice of the time and place of sale, &c. Afterwards, at the May term, 1834, the commissioners reported that they had sold said land to various persons, setting out the particular tracts sold to each piuchaser, with the price, &c. The sales were approved and confirmed by the Court, and the commissioners were ordered to make deeds to the purchasers. They did, accordingly, execute a deed to David Smith, the defendant in this suit, for the tracts of land in the declaration ' mentioned, which he had purchased, at the sale, at the price of 1,064 dollars.

The record also showed that the proceeds of the sale were divided amongst the heirs of the said John Hain, under the direction of the Court, the shares of the married daughters being received by their husbands, those of the minors by their guardian, and that of Mouser and wife by Hansicker, as their attorney in fact.

Several objections are made to these proceedings of the Probate Court, which the counsel for the plaintiffs in error contend are wholly void. The objections may be classed as follow:

1st. The petition was insufficient to authorize the Court to entertain jurisdiction because it does not describe the land sought to be divided with sufficient precision , one of the tracts being mentioned in very general terms, there being no mention made of the state or county in which the land was situated, and one of the tracts in controversy in the present suit, namely, the west half of the south-east quarter of section No. 5, <fec., being-omitted or mis-described as the west half of the northeast quarter of section No. 5, &c. In this latter particular the original petition on file in the clerk’s office disagrees with the entry upon the order book reciting the substance of the petition filed, in which the correct description of the last-mentioned tract appears.

2d. Mouser and wife are not mentioned in the original petition, and, therefore, it is alleged that they are not made parties and ai-e not bound by the proceedings. In this respect, also, the original petition differs from the entry upon the order book, which states that the names of Mouser and wife were contained in the petition.

3d. It does not appear that the requisite notice was given.

4th. Kendrick had no right to exhibit the petition without his wife being joined.

5th. The report of. the commissioners that the land, was not susceptible of an equitable partition was not sufficient to authorize the order of sale, as the original report also mis-describes the tract of land above mentioned in the same way that the petition does, and differs from the order directing the sale in which the said tract is again correctly described.

6th. It does not appear that any proof was made of the title of the petitioner, and the decree does not ascertain the rights of the several parties.

It is contended, that for the above reasons the Probate Court had no jurisdiction in this case, and that all its proceedings are void, coram nonjudice. To this it is answered, by the opposite party, that though these objections might be available on error, they cannot be examined collaterally, because the Court had competent jurisdiction to direct the partition and sale to the defendant. The first subject of inquiry then is, what was necessary to give the Court such jurisdiction?

The act of February 1st, 1831, provided that when two or more persons were proprietors of any real estate, it should be lawful for the Circuit Court of the county in which such real estate was situated, on the application of any such person, notice of such application having been previously given for at least four weeks in some public newspaper of the state, to appoint three commissioners, who, after taking an oath honestly and faithfully to execute the trust reposed in them, should proceed to make division, &c. By the second section of the' same act it was provided, that when a division of such real estate could not be had without prejudice to some of the owners, on the report of the commissioners to that effect, the-Court should malte an order for the sale of such land, upon such terms and conditions as the Court in its discretion should direct, and that such commissioners should make good and sufficient deeds to the purchasers under the direction of the Court, which should operate as an effectual bar, both in law and equity, against such owners and proprietors and all persons claiming under them. By the fourth section the guardians of all minors were authorized to do and perform, on behalf of such minors, any matter or thing respecting the partition of lands under the statute, and the ninth section provided that the Court might, for good cause shown, appoint new commis-' sioners to review such partition, and that any person not a resident of the proper county within one year, and any infant whose guardian did not attend and approve such partition, and any feme covert or lunatic within one year after the removal of his or her disability, should have a review upon showing cause.

By the act of February 4'th, Í833, (Acts of 1833, p. 114, s. 10,) which was in force when the proceedings in this case were instituted, the provisions of the act above quoted were extended to the Probate Courts, which were invested with power to decree the partition or sale of lands owned by two or more persons, concurrently with the Circuit Courts.

The Probate Courts must also be considered Courts of general jurisdiction. It is true, in the cases of Brown v. McQueen, 6 Blackf. 208, and West v. Thornburgh, id. 542, cited by the counsel for the plaintiffs in error, they are spoken of as inferior Courts, having no power to act, except when the statute confers upon them jurisdiction of the subject matter. But it was not decided nor was it meant to be said in these cases, that they are Courts of special or limited jurisdiction in the technical sense of the term. All the Courts of the state, from which an appeal or writ of error lies, are inferior Courts in one sense, inasmuch as their decisions are subject to be reviewed and reversed by the appellate tribunal, and their jurisdiction of the subject matters of suits is given and limited by the statute. The Probate Courts are Courts of record, and by the act under which they were organized, in the exercise of the jurisdiction granted to them, they are invested with the incidental powers of other Courts of law and equity. In West v. Thornburgh, it is said, that when jurisdiction of the subject matter, as in cases of partition, is given to them, they may exercise the powers incident to Courts of chancery, and in Doe v. Wise, 5 Blackf. 402, and Doe v. Harvey id. 487, it was held that evidence of the facts necessary to give them jurisdiction need not appear upon the record. These last mentioned cases assign to them the distinguishing characteristic of Courts of general jurisdiction, for in what are technically called Courts of special or limited jurisdiction, such as Courts martial or other Courts not of record, it is not doubted that all the facts necessary to give jurisdiction or to authorize judicial action, must appear upon the face of the proceedings, or their judgments will be disregarded.

It appears, therefore, that the Probate Courts, as Courts of general jurisdiction, had, at the time of the proceedings in question, undoubted jurisdiction to decree a partition or sale of real estate in the cases provided for by the statute.

We will now proceed to inquire what was necessary to - bring a case presented, within the operation of such risdiction, and, in doing so, we will endeavor to ascertain the force of the objections made to the proceedings in question.

The first step to be taken, was, obviously, the application. The statute does not prescribe the mode in which the application should be made, but it was made in the present instance by petition, and upon such application being made, it became the duty of the Court to ascertain— first, whether the facts therein alleged were substantially such as to authorize the remedy petitioned for; secondly, whether the requisite notice had been given to the other owners; thirdly, whether the facts alleged were stated with sufficient form and precision; and fourthly, whether the statements contained in the petition were true. If the first inquiry was answered satisfactorily, that is, if sufficient facts were alleged to bring the case presented within the jurisdiction of the Court, such jurisdiction at once attached, and the remaining subjects of inquiry became the subjects of judicial action, but were not questions necessarily incident to the exercise of jurisdiction. Jurisdiction must necessarily exist before such questions can be examined and determined. It is defined by the Supreme Court of the United States to be'the power to hear and determine a cause. ■ 6 Peters 709. In this case the petition filed by Kendrick avers that he, together with other persons named, were the owners of several tracts of real estate situated in a certain congressional township and range, and that he desired to have partition, thereof. This, we think, was sufficient to satisfy the first subject of inquiry noticed above, and to authorize the entertainment of jurisdiction in the case. It is true, the petition does not otherwise set out the county and state in which the land was situated, and it does not correctly describe the tracts now in controversy, but these defects might have been, and probably were, remedied by the proof, as there is no pretence that the land sold under the subsequent orders of the Court was not, in fact, situated in the county of Vermillion, and owned by the parties to the application.

An omission to state the names of some of the persons who Were joint owners, with the petitioner, of the land sought to be divided, could not affect the question of jurisdiction as to the subject matter of the suit, or as to those who were made parties. But it is contended, on be half of Mouser and wife, that they were not made parties to the petition, and, therefore, they are not bound by the proceedings. Here we may notice the discrepancy between the original petition on file in the clerk’s office, and the entry upon the order-book, which recites the substance of the petition filed as the basis of the application, and by which it appears that Mouser and wife were named therein as joint owners with the applicant. Regarding both the original petition and this entry as parts of the record of the cause, we think the latter, where the discrepancy occurs, must be taken as the authentic exposition of the facts. Viewing it in this light, we find nothing contradictory, as the petition is merely silent; otherwise, we should be obliged to discredit a positive averment of the record. Parties may be added after a suit has been commenced, and it is to be presumed that, in this instance, the additional names would not have been inserted in the entry upon the order-book, unless proper steps had been taken for that purpose. We are of opinion, therefore, that it sufficiently appears that Mouser and wife were made parties to the application, so far, at least, as an averment of their joint ownership was necessary to bring them before the Court, and we need not consider what effect, if any, the subsequent proceedings would have had upon their rights had the fact been otherwise.

The next objection to be noticed, is the alleged defect of the record in not showing that legal notice was given of the application. Upon this point we think there is no difficulty. It has been repeatedly held by this Court, that it is sufficient if the record states there was satisfactory evidence of the due service of process or publication of notice. In this case, it appears that satisfactory evidence was before the Court, that notice had been “ duly given” by publication in the “ Wabash Herald,” and the only defeet alleged is, that the Wabash Herald is not stated to be a newspaper published in this state. We think this omission is not material. In the case of Horner v. Doe, e. d. The State Bank, May term, 1848, it was held that where the record is silent as to the proof of notice, it will be presumed that the requisite steps had been taken to bring the parties within the jurisdiction of the Court.

With respect to the right of Kendrick to file the petition without his wife being joined, from what we have already observed, it will appear, that it does not give rise to any question affecting the jurisdiction of the Court. The petition does not disclose the fact that he claimed an ownership in the land in right of his wife. It simply avers that he, with the other persons named, were the proprietors of certain land, &e. It is to be observed, however, that it is not now necessary to decide what effect these proceedings have upon the estate which would have vested in Mrs. Kendrick after the termination of the marriage. If we regard the sale as having transferred the interest of her husband only, it is a sufficient bar to the recovery of the share which descended to her in the present suit; and he, certainly, is not entitled to contest the validity of the sale to that extent, after having the sale made upon his own application, and after having received the purchase-money, on the ground that he had falsely represented in his petition that he was one of the proprietors.

Having thus arrived at the conclusion that the Probate Court had jurisdiction of the subject matter of the application for partition^ and all the present plaintiffs in ei'ror, or those under whom they claim, excepting Mrs. Kendrick, are sufficiently shown to have been brought within such jurisdiction by being joined in the petition and legally notified of the application, the remaining objections to the validity of the proceedings may be easily disposed of. The sufficiency of the report of the commissioners, the proof of the title of the petitioner, and the ascertainment of the relative shares of the several parties, were all matters of subsequent adjudication, and the decisions of the Court thereupon cannot be controverted collaterally. It follows, of course, that the title of a bona fide purchaser, acquired under the proceedings, must be deemed valid.

W. D. Griswold and J. P. Usher, for the plaintiff.

S. Judah and R. W. Thompson, for the defendant.

We do not consider it necessary to enter upon a discussion of the doctrines relating to the distinction between judgments which are to be regarded as wholly void, and those merely erroneous. Numerous cases have been cited by the counsel for both parties, but setting out of view those occurring in Courts of special and limited jurisdiction, and those arising upon judgments rendered in other states, neither of which class of cases is applicable as authority to the points involved in the present suit, the weight of authority is decidedly against the right of the plaintiffs in error, for the causes above stated, to impeach, collaterally, the proceedings in partition upon "which the title of the defendant is based. See Grignon's Lessee v. Astor, 2 How. 341, and the earlier cases in the same Court to which reference is made;, and also, 2 Amer Lead. Cas. 551, where the authorities on this subject have been collected .

Per Curiam.

The judgment is affirmed. 
      
       See ante, p. 130.
     
      
       See Ladbrook v. James, 1 Willis, 200.—Sollers v. Lawrence, id. 416.—Shriver’s Lessee v. Lynn, 2 How. 43.—Thompson v. Tolmin, 2 Peters, 157.—Voorhees v. The U. S. Bank, 10 id. 449.—Jackson v. Brown, 3 Johns. 459.—Jackson v. Woolsey, 11 id. 446.—Gallitin v. Cunningham, 8 Cow. 374.—Dunning v. Corwin, 11 Wend. 647.—Foot v. Stephens, id 483.—Cook v. Darling, 18 Pick. 393.—Granger v. Clark, 22 Maine, 128.
     