
    Samuel Laughman et al. vs. Nancy Thompson et al., Administrator and Administratrix of Shem Thompson, deceased.
    It is competent for the maker of a note given for lands bought at an administrator’s sale, to show by the records of the proceedings of the probate court appertaining to the sale, that the sale was not made according to the directions of the statute ; and thus establish a failure of consideration of the note.
    A sale by order of the probate court, of the real estate of a decedent, must be made in strict compliance with the law, by issuing citation and advertising, or it will be void, and the records of the proceedings may be offered to show that the rules of law in those respects have not been strictly observed.
    It must appear, from the records of the probate court in cases of the sale of lands by an administrator under its order, that legal notice has been given to the heirs at law, or a legal reason in excuse of the want of such notice, or both the order and the sale are void.
    In the absence of the record of the proceedings of the probate court touching the sale of a decedent’s realty, the action of that court will be presumed to have been correct; when the record, however, is produced, it must show affirmatively that everything necessary to give the court jurisdiction was performed.
    In error from the circuit court of Jefferson county ; Hon. C. C.,Cage, judge.
    Shem Thompson brought his action of assumpsit to the June term, 1839, of the Jefferson circuit court, against Laughman, Hinds, and Farley, upon the following promissory note:
    $4,380. Fayette, 8th Jan. 1838.
    ' Twelve months after date, we or either of us promise to pay to Shem Thompson, administrator de bonis non of the estate of Hezekiah Harmon, deceased, the sum of forty-three hundred and eighty dollars for value received, negotiable and payable at the office of the Planters Bank in the town of Port Gibson.
    (Signed) Saml. Laughman,
    H. M. Hinds,
    G. P. Farley.
    
      The defendants appeared and pleaded the general issue and payment.
    At the May term, 1841, of the court, the plaintiff’s death was suggested, and at the May term, 1842, the suit was revived in the names of Nancy Thompson, administratrix, and Levi N. Thompson, administrator of the said Shem Thompson.
    At the November term, 1842, the case was submitted to a jury; the plaintiffs, as appears from the bill of exceptions, offered in evidence the note sued on, and closed their testimony.
    The defendants then proved, by the admission of the plaintiffs, that the note sued on was given by them to the plaintiffs’ intestate, as administrator de bonis non of Hezekiah Harmon, deceased, to secure the first instalment of the purchase-money due by Laughman for a tract of land belonging to the heirs of said Harmon, and which had been sold by Thompson, the administrator de bonis non of Harmon, under an order of the probate court of Claiborne county, and purchased by Laughman at the sale.
    The defendants then produced, and offered toread in evidence to the jury, two certified copies of the' records of the probate court of Claiborne county, showing the following facts, to wit:
    That on the 28th day of February, A. D. 1837, Shem Thompson, as administrator de bonis non of Hezekiah Harmon, filed his petition in that court, alleging that it would be to the interest of the heirs of Plarmon, that all his real estate should be sold, and praying for citation to those interested, to come forward at a proper time, and show cause why an order of sale * should not be made.
    Upon this petition it was ordered by the court that publication be made and citation issued to all persons interested in the • lands, disc, of the said Harmon, deceased, to come forward at the April term, 1837, of said court, and show cause,' &c. why an order should not be granted for the sale of said real estate.
    At the April term, 1837, of said court, and on the 24th day of April, an order was made reciting that upon the application of Shem Thompson, ■ administrator of Hezekiah Harmon, deceased, for permission to sell certain land belonging to said estate, the court being satisfied, from proofs, that it would be to the interest of the heirs and others interested, that the lands should be sold; and it being proved to the satisfaction of the court that an. advertisement containing notice of the application had been inserted in two of the most public newspapers printed within the state of Mississippi for six successive weeks, (in which advertisement the land subsequently purchased by Laughman, and for which the note sued on was given, is described as “ a tract containing 240 arpents, situated in Jefferson county, on the waters of Colis creek, confirmed to the legal representatives of Christian Braxton by the board of commissioners 13th May, 1805,”) and the said Shem Thompson having entered into bond with security conditioned according to law, it is ordered by the court that Shem Thompson, administrator as aforesaid, sell each of the tracts mentioned in said advertisement as the property of said Harmon’s estate, on his giving two months’ notice thereof in two public newspapers printed in the state, upon a credit of one and two years from the day of sale, the purchaser giving notes with approved security, payable in bank, for the payment of the purchase-money.
    At the May term, 1838, of said court, Thompson returned to the court his account of sales of the real estate of Hezekiah Harmon, deceased, showing that they were sold by him on the 8th January, 1838, and that Samuel Laughman purchased 240 arpents in Jefferson county, at $36 50 per arpent — $8,760; which was ordered to be received and recorded.
    To the reading of which records in evidence to the jury, the plaintiffs objected, which objection was sustained by the court, and the records ruled out, and neither of them suffered to be read to the jury.
    To the ruling out of this testimony, the defendants excepted, and presented their bill of exceptions, which was signed, &c. before the jury retired.
    A verdict was ordered for the plaintiffs. Whereupon the defendants moved the court for a new trial:
    
      I.Because the court rejected legal evidence offered by the defendants on the trial, and would not permit the same to go to the jury. 2. Because the verdict of the jury is contrary to law and evidence.
    Which motion was overruled. To which opinion of the court overruling said motion, the defendants excepted, and embodied in their bill of exceptions the whole of the testimony given in the cause, and which was all embraced in the bill of exceptions signed by the court previous to the retirement of the jury.
    The defendants have brought the case up to this court by writ of error.
    
      Coleman, for plaintiff in error.
    1. It was error in the court below to permit the suit to be revived in the name of the personal representatives of Shem Thompson. How. <fc Hutch. 397, § 40; Colt v. Larnin, 9 Cowen, 320; Dale v. Roosenvelt, 8 Cowen, 333; 1 Bos. & Pul. 310; Bro. Abr. tit. Administrators; 7 Com. Dig. Administrator, B. 6; 1 Williams on Ex’rs. 133; 1 Salk. 207; Toller on Ex. 162,407; 11 Yiner’s Abr. 97; Moore, 462; 13 Lutw. 342; 7 Har. & Johns. 40.
    2. The note sued on was void, and no judgment could legally be rendered upon it. It was made payable at the office of the Planters Bank in Port Gibson. Administrators are expressly prohibited from taking notes payable in bank. How. & Hutch. 114, sec. 94. A contract made against the prohibition of a statute is wholly void. 1 Yentr. 237; Cro. Eliz. 199; 3 Taunt. 244; 4 Maulé & Sel. 66; 17 Mass. R. 281; Chitty on Cont. 229,232.
    3. The records of the probate court were improperly ruled out by the court below. They were rejected on the ground that there was no evidence that Laughman had ever been evicted. In Puckett v. MDonald, 6 How. 269, the court say, in answer to a similar objection, “ No eviction is necessary, since the paramount title of the heirs is as effectually established by the evidence, as it could be by the record of eviction.” Such will be found to be the effect of the evidence in the case furnished by the records ; they show,
    1st. That Thompson filed his petition for the sale of the land on the 28th of February, 1837, and that the order of sale was granted on the 24th of April, 1837.
    The statute requires that the citation shall be returnable “ not less than sixty days after the time of issuing such citation.” How. & Hutch. 418, sec. 113.
    The order recites that citation was ordered at the time of the filing of the petition, i. e. on the 28th of February. From the 28th of February to the 24th of April was only fifty-five days, which, supposing the citation to have been issued on the very day it was ordered, (of which, or of its having issued at all, there is no evidence,) falls short five days of the notice required by the statute.
    The order of sale then was a nullity, from the want of power in the probate court to make it. The sale itself being made without authority, was void, and passed no title to the purchaser, who is a mere trespasser upon the land. And the note given by him for the purchase-money being wholly without consideration, is also void. This position is so fully sustained by the repeated adjudications of this court, that it is only necessary to cite them in its support. Edmondson v. Roberts, 2 How. 822; Campbell v. Brown, 6 How. -106; Puckett v. M Donald, 6 How. 269; Qwin v. M Carroll, 1 S. & M. 351; Smith v. Denson, 2 S. & M. 326; Weston v. Howard, 2 S. & M. 527.
    2d. That the order of the probate court was void, because it required the administrator to take from the purchasers notes payable in bank, in violation of the statute. How. & Hutch. 414, sec. 94.
    3d. The record nowhere shows that citation ever issued; that citation was returned executed; or any excuse for the failure, by any evidence, or even allegation that the parties interested resided out of the state.
    
      “ The existence of the facts which give the probate court power to decree a sale of lands must appear affirmatively upon the record of its proceedings.” Campbell v. Brown, 6 How. 230.
    The issuance of citation, and its return executed, or a showing of the non-residence of the parties interested, were necessary to give the court power to order the sale. Nothing is shown but that citation was ordered to issue.
    In addition and conclusion, we refer upon this point, also, to the cases already cited from 2 and 6 How. and 1 and 2 S. & M. as conclusive of the entire invalidity of the sale.
    Clark, on same side.
    The note sued on in this case was given to Shem Thompson, as administrator of the estate of Hezekiah Harmon, for land purchased of said Thompson, as such administrator.
    The money secured to be paid by this note, becomes assets of Harmon’s estate, and would go to the administrator de bonis non. 2 Hay. 60 ; lb. 18; Toller on Executors, 162; 1 Barn. & Cress. 150. In such case the right belongs to the administrator de bonis non, and he must bring the suit. 1 Saund. PI. & Ev. 607. 1 Barn. & Cress. 150. If judgment had been rendered in this case before the death of Shem Thompson, the administrator, and had not been satisfied, the judgment would have been nugatory, and the administrator de bonis non of Harmon’s estate could have brought a new action upon the note. Gout, Administrator, v. Chamberlain, 4 Mass. R. 611, and cases there cited; Ibid. 413. It being admitted, in the trial by the plaintiff below, that this note was assets of the estate of Harmon, and not of the estate of Thompson, it must abate, and a new action be brought by the representatives of Harmon. The court therefore erred in permitting the revival of this case in the name of Thompson’s administrators, and rendering judgment in their favor.
    The court also erred in ruling out the records of the probate court of Claiborne county, of the proceedings in regard to the sale of the lands by the administrator of Harmon, for which lands this note was given :
    1. Because the said records show that the court ordered the administrator to require of the purchasers notes payable in bank, contrary to the statute, (H. & H. 414,) which forbids administrators to require such notes, and the act of 1830, which requires that bonds shall be taken.
    2. Because the said records show that the order of the probate court, granting power to the administrator to sell, was void. The application to the court, by petition, was made on the 28th February, and the final order of sale was made on the 24th April following, fifty-four days only intervening. It was the duty of the court to have ordered citations to issue, returnable “not less than sixty days after the time of issuing such citation,” directed to the heirs, &c., (H. & H. 418,) and the administrator is required to give notice, by advertisement, to all persons interested, to appear at the court “ at which such citation is made returnable.” No such citation issued in this case, and none could have issued. The same statute requires that if the parties interested reside in the state, that the citation shall be served upon them, “executed.” And the subsequent statute of 1833, (H. & H. 420, sec. 119,) requires publication for three months, in case the parties reside out of the state.
    The petition and notice do not specify the lands, as required by the statute.
    The court below ruled out these records, because it was not shown by defendants that the purchaser had been evicted. In the cases in 6 Howard, of Campbell v. Brown, and Puckett v. M’Donald, this court has settled the doctrine upon this point, and according to these cases the purchaser is a mere trespasser against the heirs, and the notes sued upon absolutely'void, for want of consideration.
    The court therefore erred in refusing to grant a new trial.
    
      Thrasher and Billers, for defendants in error.
    If there were any objections to the form of the pleadings, they were all waived and cured by the pleas of non assumpsit and payment. This court has adjudicated upon a similar case. 2 How. 851. The suit having been brought correctly, it would seem to follow that it was correct to revive it in the name of plaintiff’s administrators, after his death. Rev. Code, 4.0, sec. 41; Ibid. 64, sec. 119. At all events, we submit that, if the suit was right before plaintiff’s death, the appellants should have objected to the revival.
    But we contend that the objection to the validity of the proceedings in the probate court, amounts to nothing. If the probate court did anything that the statu'te requires, the sale is good. If it did more, the excess will not vitiate what was correctly done, and the purchaser could demand a deed from the administrator, by tendering a note, with good security, and could have forced the sale reported and confirmed. The objection is made under the act of 1821. Rev. Code, 64, sec. 118. The order of sale was made under the act of 1830. H. & H. 418, sec. 113. The order of sale directs the administrator to 'take a note payable in bank, (not in any of the banks of this .state.) The act of 1821 says that no executor or administrator shall require a note payable in bank. (Nothing said about the order of the court.) But the proceedings in the probate court took place under the act of 1830, which provides that the court may order the sale on such terms and credits as they shall deem most advisable, provided only that it shall not be made on a shorter credit than twelve months. The probate court deemed it advisable to require notes of the purchaser payable in any bank, one and two years after date; and those were the terms and credits upon which the sale was made. If that order -of the probate court be nqt absolutely void, the objection cannot be made in this collateral way. If it was illegal and void, the appellants ought not to have made the note in that form. They made it voluntarily, and without objection. There is no evidence that the administrator required it in that form, or that appellants objected to it, or that the land sold under its value. The high price which it brought is evidently the reason of this defence.
    As to the citation and publication. It does not appear that at any time there were any heirs or creditors of Harmon residing in this state, or elsewhere. If there were none, or if they voluntarily appeared in court, then no citation was necessary, and publication alone was sufficient. Publication was made for six weeks, as required. It does not appear whether citation was issued and served or not, nor whether the parties voluntarily appeared. The record therefore fully makes out a case authorizing an order of sale, as against non-resident parties ; and if the court was satisfied by evidence that there were no parties to the proceeding, residing in this state, then no citation was necessary, and the court acted rightly in ordering a sale upon proof of publication. We are bound to presume everything that the law allows, in order to sustain, if possible, the action of the probate court, and therefore we are bound to presume, either that there were no parties to the proceeding, resident in this state, and that the court had evidence of the fact, or that such parties voluntarily appeared in court. The appellants did not plead that there were such resident parties, nor did they offer to prove it under the pleas filed; and it is very strange they did not, if the facts existed; and we conclude that the inevitable presumption is, that there were none. If the court presumes there were, they ought at the same time to presume that the probate court had before it all that was necessary to justify the order.
    Again, it is urged that the order of sale was made only fifty-four days after the order for citation and publication, and therefore void. The act of 1830 requires the administrator to advertise in two newspapers for six weeks. This was done. If there were no resident parties no citation was necessary, and six weeks’ publication was sufficient, and it was unnecessary to wait until the expiration of sixty days. But we insist that this evidence was inadmissible under the pleas. If the appellants wished to make this point in their defence, they should have filed a special plea to the effect. Non assumpsit and payment waive the objection. There is no failure of consideration. Precisely the same consideration exists now that existed when the note was made. The purchaser has never been evicted from the possession of the property. He is still in possession. No one has attempted to interfere with him. He has never even tendered it back to the estate of Harmon. The defence is a most graceless one.
    
      In the case of Campbell v. Broion, 6 How. the defence was made the subject of a special plea, preceded by non assumpsit. ' There was a demurrer to the special plea, which admitted it, and this court overruled the demurrer. If it had been competent to give the substance of the special plea in evidence, under the plea of non assumpsit, the court would have sustained the demurrer, because the special plea amounted to the general issue.
   Mr. Justice Teacher

delivered the opinion of the court.

Shem Thompson.instituted his action of assumpsit, in his individual capacity, upon a promissory note, dated in 1838, and payable to him as administrator de bonis non of the estate of Hezekiah Harmon, deceased. The defendants below pleaded non assumpsit, and a plea of payment. Some time after the institution of the suit, the death of the plaintiff was suggested to the court below, and the cause was revived in the names of the plaintiff’s administratrix and administrator, without objection on the part of the defendants there. The cause was submitted to a jury, who rendered a verdict for the plaintiff’s administrators, and a judgment was given in accordance therewith. The record shows that during the trial, the defendants below filed a bill of exceptions, by which it appears that the plaintiff’below read the note upon which the action was founded, in evidence, and also admitted that the note was made by the defendants below, to the original plaintiff, as administrator de bonis non of Hezekiah Harmon, deceased, to secure the payment of an instalment of the purchase-money due by Laugh-man, one of the defendants below, for a tract of land belonging to the estate of Harmon, and which had been sold by Shem Thompson, as administrator de bonis non of Harmon, by virtue of an order of the probate court of Claiborne county, and purchased by Laughman at said sale; that the defendants below then offered to introduce in evidence two certified copies of the records of the probate court of Claiborne county, in order to show that the proceedings of that probate court, under which the land had been sold, and for which the note sued upon had been given, were irregular, and contrary to law, and that the note was therefore void, because the records show that a citation to the heirs had not been duly issued and served, and publication had not been made according to law, and because the note in question was improperly made payable in bank. The introduction of these records, as evidence, was refused by the court below. The record also shows that a motion for a new trial was made and overruled, and the bill of exceptions thereunto sets out the evidence as above stated.

It is certainly competent, in a case where the objection to the recovery upon a promissory note is put upon the grounds that the consideration for which the note was given was property purchased at an administrator’s sale, and that the sale was not made according to the directions of the statute, in such cases, to permit the records of the proceedings of the probate court, appertaining to the sale, to be introduced in evidence, and it is error to reject evidence thus legitimate. Worten, Administrator, v. Howard, 2 S. & M. 530. A sale by order of the probate court of the real estate of a decedent, must be made in strict compliance with the law, by issuing citation, and advertising, or it will be void, and the records of the proceedings may be offered to show that the rules of law in those respects have not been strictly observed. Smith v. Deuson, Adm'r. 2 S. & M. 326. It must appear from the records of the probate court, in cases of the sale of lands by an administrator under its order, that legal notice has been given to the heirs at law, or a legal reason in excuse of the want of such notice, or both the order and the sale are void. Gwin et al. v. McCarroll, 1 S. & M. 351; Campbell v. Brown et ux. 6 How. 106. In the case at bar, the record offered to be introduced does* not show whether citation was issued and served, or not, nor whether there were any heirs or creditors of the estate, or whether they voluntarily appeared. In the absence of the record, this court would be bound to presume that the probate court acted correctly ; but if, upon inspection of the record, no citation appears to have issued, no appearance to have been made by the parties, and no evidence of the non-existence of such parties, this court would be compelled to pronounce an order and sale, under such circumstances, to be void. Such a record must show, affirmatively, everything necessary to give the court jurisdiction over the subject-matter. The defence sought to be introduced in this case was decided by this court in the case of Gwin et al. v. Me Carroll, above quoted, to be legitimate under the general issue.

The point taken upon the mode in which the suit was instituted, and afterwards revived, we do not think is well sustained. Buffum v. Chadwick, 8 Mass. R. 103.

Judgment reversed, and new trial awarded.  