
    Richard L. Wilson, et al., Appellants, vs. James D. Matheson, Appellee.
    1. Power was granted to the probate courts by Chapter 1358, Laws of 1802, to order the sale of real estate of decedents for the purpose of distribution.
    2. When it is necessary for a party to establish a prima facie title to lands in order to maintain a suit to prevent or remove a cloud upon the title, and he shows that his grantor purchased at an administrator’s sale in 1803, and, in connection with ‘the administrator’s deed, shows a decree of the probate court ordering the sale, upon petition for such sale for the purpose of distribution and payment of debts, a citation to persons interested in the estate will be presumed until the contrary is shown, especially when it appears that the heirs acquiesced in and ratified the sale at the time, and the purchaser and his grantee has had the undisturbed possession under such sale and deed for ten years.
    3. Where a suit had been commenced against an administratrix, and Judgment by default entered, and an assessment of damages made in 1803, but no judgment entered for ten years, and in the meantime the administratrix had sold the real estate, and after-wards, in 1873, the final Judgment was entered in the original minutes of 1863, thus showing an apparent judgment lion as of 1803; Held, that the judgment so entered did not create a lien as against a bona fide purchaser, and an attempt to sell the land upon execution under such judgment might be enjoined by such purchaser.
    *1. A judgment by default and assessment of damages entered, but no final judgment, does not create a lien against the lands of the defendant.
    5. A judgment is not “goods or chattels,” liable to levy and sale upon execution. Such a sale carries no right to control the judgment so sold, and Is void.
    Appeal from the Circuit Court for Alachua county.
    The bill in this case was. filed in 1874 by Matheson, ap-pellee, against appellants.
    The bill alleges that certain real estate of the estate of James C. Standley was sold under the decree of the probate court by Penelope L. Standley, the administratrix de bonis non of the estate of said James C. Standley. The order for the sale was obtained by the administratrix, October 26th, 1863, upon her petition “for the payment of the heirs and creditors of said estate,” the petition alleging that the application for sale was made with the assent of the heirs and legatees, and the bill alleges that the heirs had consented thereto in writing. On December 7th, 1863, the lands were sold by the administratrix after due notice, and conveyed to Charles E. Haile or the consideration of $73,000 paid, and on the 29th September, 1866, Haile conveyed to Mathe-son in trust for certain purposes, and complainant and his grantor has been in the quiet enjoyment of the properly ever since the conveyance by the administratrix, being upwards of ten years, as the owners of the same. That defendants Wilson and McHenry induced Barnes, sheriff, to levy an execution upon said lands, and to advertise them for sale in Eebruary, 1874, to satisfy a pretended judgment purporting to have been rendered in the Circuit Court for the sum of $8,405.21, damages in favor of Edward Remington against the administratrix of James C. Standley, deceased, on hte 13th October, 1863, the said Wilson and McHenry claiming to own the said judgment, but complainant says that said judgment, and the pretended ownership, and the right to control the same on the part of said defendants, are the results of chicane and fraud, and the attempted sale of said property wjll cast a cloud upon complainant’s title and should be enjoined. The defendants Wilson and McHenry claim to own and control the judgment of Remington against tlie administratrix in the manner following: In 1867 and 1868, one Lew Williams obtained three several judgments against said Remington, of about $20 each and costs; James Bennett obtained judgment against Remington for $17.59 and costs, and Joseph Baldwin obtained two judgments against Remington for $84.40 and $96.56, besides costs. These six judgments were rendered by a justice’s court in Alachua county. Executions were issued by the Clerk of the Circuit Court upon* these justice’s court judgments, and by virtue thereof the sheriff levied .upon tlie $8,405.21 judgment of Remington vs. Standley’s administratrix, and sold the same to Wilson and McHenry, or one of them, in June, 1873, the sheriff executing to them a bill of sale of said judgment, as appears in the exhibits on file. It is further alleged that at the time of sueli sale there was no judgment of record in Alachua county against Penelope L. Standley, administratrix of the estate of James C. Standley, deceased, but that there were in the records of the Circuit Court, under date of October 13, 1863, two separate entries, viz.: in a suit styled “Edward Remington vs. P. L. Standley adm’x,” there is a memorandum that the defendant makes default, and damages are assessed at $8,405.21, but no final judgment was entered for any sum of damages or costs. The other entry is in a suit styled “Edward Remington vs. Penelope L. Stand-ley, adm’x.” and is a mere skeleton form of judgment against the defendant, but there is no assessment of damages or judgment for*any sum.
    
      The record thus stood until November 21, 1873, when a motion is entered by A. B. Hagan, as “plaintiff’s counsel,” that judgment be entered nunc pro tunc in the suit of “Edward Remington vs. Penelope L. Standley, adm’x,” &c, which motion was granted, (as the clerk testifies, though the order granting the motion -is not given in the record before the court,) and on the same day the clerk filled up the blank in the first-mentioned entry m the original record, thus making it appear that final judgment was entered October 13, 1863, and no judgment nunc pro tunc appears to have been entered on or after November 21, 1873, in pursuance of said motion. The declaration on file shows only $4,4(30 due at the time of the alleged assessment of damages instead of $8,405.21.
    It is further alleged that said James C. Standley died in 1860, leaving over $40,000 of slave property, and over $14,000 of other personal property, besides a large amount of credits, and besides the real estate which was sold for $73,000; and that if this indebtedness had any real existence it could have been collected at the time, there being no other debts of consequence against the estate. But Remington took no steps toward collection of his claim after October 13, 1863. It is thereupon alleged that the said attempt of 'Wilson and McHenry is a fraudulent device to obtain money to which they are not entitled; that the said proceedings and pretended judgment against the adminis-tratrix, and the execution and threatened sale under it, tend to cast a cloud upon complainant’s title and right of possession, and should be restrained by the writ of injunction from enforcing the judgment against said property of complainant.
    Defendants Wilson and McHenry answer and insist that the judgment of Remington vs. Standley’s administratrix ivas a valid judgment, and is a lien upon the lands of the decedent from the 13th October, 1863; that the sale of said judgment by the sheriff, by virtue of the justice’s judgments and execution, was valid, and gave them, as purchasers, a good title thereto, and they are bona fide owners and have lawful right to enforce the same against the lands claimed by complainant; and admit that they caused the sheriff to levy on them as alleged. They insist that complainant has no title by virtue of the sale by the adminis-tratrix under the order of the Probate Judge, as the Probate Court had no power to order the sale of lands to pay debts, the personal estate not having been exhausted; and that the sale to complainant’s grantor was void. They deny all fraud and chicane and say that they are pursuing their honest rights.
    As to the defendant, Remington, a decree pro confesso and final was entered against him (service having been made by publication,) on November 27, 1874, declaring the judgment entered in his name against Mrs. Standley, administratrix, void as to the rights of complainant, and enjoining the sale of the lands in question under it. Replication by complainant to the answer of Wilson and McHenry.
    The testimony shows that defendants, Wilson and Mc-Henry, bought the judgment of Remington vs. Standley at sheriff’s sale under the justice’s judgments upon executions issued by the clerk of the court, and that they procured the issuing of the execution against the estate -of Standley, and directed the levy upon the land claimed by complainant as alleged. The order of the Probate Judge allowing the administratrix to sell the lands of the estate of James* C. Standley was produced, dated October 26, 1863. The accompanying petition for such order asked that the sale be made for the purpose of paying the “heirs and creditors,” and purported to be with the concurrence of the heirs.
    The deed of the administratrix to Charles E. Haile, dated December 7, 1863, and the deed of Charles E. Haile to James D. Matheson in trust for Eliza W. Haile, dated 29th September, 1866, were put in evidence. Also a paper signed and sealed by several persons as heirs of Janies C. Standley consenting to the sale and conveyance by the ad-ministratrix and ratifying the same, dated December 7, 1863.
    There are also among the written evidence filed, the following papers relating to a suit or suits in favor of Edward Remington; a declaration filed January 8, 1862, against Samuel R. Pyles and Penelope L. Standley, administrators de bonis non of James C. Standley, deceased, on note dated April 4, 1859, for $6,171.75 with 8 per cent, interest, payable January 1, 1860, signed by Thomas A. Bradford, Henry Bradford and James C. Standley. A copy of the note is annexed to the .declaration and is endorsed “paid 22 June, 1860, $2,863.69 and 26 November, 1861, $67.92. This declaration and the prsecipe for summons are signed by J. B. Dawkins, attorney. Also a summons alias dated 12 July, 1872, against Penelope L. Standley, administratrix de bonis non of James C. Standley, endorsed, served 29 September, 1862, by the sheriff. Also praecipe for summons against Penelope Standley, executrix of the estate of James C. Standley, deceased, signed J. P. Sanderson, ator-ney, filed September 27, 1862, and summons of same date against Mrs. S., as executrix, &c., served October 1, 1862. Also declaration signed by Sanderson, attorney, against Penelope L. Standley, administratrix, &c., on note dated April 4, 1859, payable January 1, 186ÍJ, for $6,171.75, signed by the above named makers. A copy of this note is annexed to the declaration. There is also a paper marked “original note,” and is a promissory note dated April 4, 1859 signed by the same makers as above, payable January 1,1861, for $6,171.75 and eight per cent, interest.
    The records showing the entry of the two forms of judgments by default, as in two suits between the same parties, are produced. The clerk testifies that these entries were made at the Pali term, 1863, and in one of them was the recital that the clerk had assessed the damages at $8,405.21, but the form of the final judgment was not filled up with the amount of judgment recovered, damages or costs. The other rehiained blank in respect to the assessment and fina) judgment.
    The cause being submitted upon the bill, answer and proofs, on the 26th August, 1878, the chancellor decreed that the complainants were entitled to the relief prayed, and that defendants Wilson and McHenry, and all persons claiming through or under them, be enjoined from levying the execution under the blank judgment rendered 13th October, 1863, and filled up on November 21, 1873, upon the lands mentioned in the bill, and that said judgment so far as it affects the said lands, or any right, or interest of the complainant therein, was declared null and void, and that said defendants pay the costs.
    From this decree the defendants appealed and pray that it be reversed.
    
      Thrasher, Dcwis & Hampton, and B. O. F. Sanchez for Appellants.
    
      Thomas F. King and R. É. Hilton for Appellees.
   The Chief Justice

delivered the opinion of the court.

The appellants insist, in the first instance, that the decree against Remington, (which was final, and not merely interlocutory,) should he reversed because there was no prayer for subpoena against him in the bill. He was served by publication, being a non-resident of the State, and the final decree against him was entered in 1874, nearly four years before this appeal was taken. The appeal was only from the decree of August 36, 1878. Appeals can only be taken within two years after final decree.

It is further urged that the decree was madd without any report of the master, and without notice to defendants. We notice, however, that the testimony to be used on the hearing, was taken under stipulation of parties before a person not appointed a master, and there was nothing referred to him or to a master upon which to report. As to notice of the time and place of hearing the chancellor certifies that due notice was given.

The right of complainant to file the bill in this case is denied by appellants, because he has established no t.ille to the real estate described; that the judge of probate had no power to order the sale of the real estate for the payment of debts until the personal estate was exhausted, and therefore his order to the administratrix to sell land was void, as it did not appear that the personal estate had been exhausted.

To this it may be said that the application for the license, or order to sell the lands, was made upon the ground that it was desired by the heirs for the purposes of distribution and the payment of debts — “for the payment of the heirs and creditors/’ as expressed in the petition. The application to the judge and his order were doubtless made in view of “an act empowering Judges of Probate to grant orders to executors and administrators to sell real estate for distribution,” approved December 10, 1862, Chapter 1358, Laws of 1862, which expressly granted jurisdiction to order a sale for distribution, and not under the provisions of the law of 1833, or 1841, found in Thompson’s Digest, 202, 203, referred to by appellants’ counsel. There is'no doubt that the Probate Court, "by the act of 1862, had jurisdiction of the subject-matter of the sale of real estate for distribution' among the heirs. There is no pretense that the regularity of the proceedings and sale have been .questioned by parties interested.

The judgments of Probate Courts, like the judgments of other courts of law, are final and conclusive ih matters over which they have jurisdiction. (Smith vs. Denson, Adm’r, 2 Sm. and Mar., 326, 339.) In that case the Court of-Errors and Appeals, Sparkey, C. J., says: “The court, it seems,, did make an order of sale. This it could not legally do without a citation. We must presume, in the absence of all showing to the contrary, that the court acted correctly. It is possible that the parties interested appeared without citation and thus dispensed with it.” In the case at bar, the petition recites that the heirs join in the application, and they afterwards acquiesced in it.

It appears that a deed was executed by Mrs. Standley, administratrix, after due notice, and that other deeds and releases were at the same time executed by the reputed heirs, assenting to and ratifying the sale, and under these deeds the complainant and his grantors have been in the quiet possession for over ten years before the actual entry of the judgment. Complainant is not here defending himself from an attack by heirs or legatees who had tno notice of the sale, or who were under disabilities; but, so far as this record shows, he has prima fade a sufficient legal title to enable him to maintain a suit of this character.

The suit is not, as assumed by counsel for appellees, brought to annul or to declare void a judgment, by a collateral proceeding, but it is to enjoin a sale of lands in which this complainant has a legal interest, under a judgment which, he says, is*not in law or in equity a ]ien upon them superior to his interest.

It does not appear that Remington, in whose favor the judgment against the estate of Standley is claimed to exist, is an actor in the proceedings sought to be enjoined. At least two suits were commenced in his name against the estate in 1862: one, in which Dawkins appears as attorney for Remington, declaring against Pyles and Standley as administrators de bonis non, and one in which Sanderson is attorney, declaring against Mrs. Standley, as administratrix of , the estate of James C. Standley, deceased. There is a third summons (alias) which we are unable to connect with either of the above mentioned suits. Then we find that the note described in the declaration filed by Dawkins, attorney, is payable January 1, 1860; the note declared on in the San-derson declaration is payable January 1, 1862; and the only original note among the papers on file in the Circuit Court is payable January 1, 1861. Each of these three notes bears the same date, is for the same amount, the same rate of interest, signed by the same makers, and all áre identical except as to the time of payment. There were two skeleton forms of judgment, by default and final, entered under date of October 13, 1863, one following the other, in the first of which the assessment of damages was entered at $8,405.21, but no amount was entered in the final judgment. Upon which of these notes the assessment was made by the clerk, if either of them, does not appear. Neither of the originals of the two first mentioned notes is among the files, and the third (the original) is not described in eihter declaration, and is therefore probably not the one upon which the damages were assessed. Upon one of the notes set out in the Dawkins declaration apperas an indorsement of payments which reduce the amount due October 13, 1863, the date of the assessment of damages, to about $4,875,38. instead of $8,405.21 as entered by the clerk. If there were in fact three notes, it is singular that the original of the one upon which the clerk assessed the damages is not among the files. If there was but one note, then there has been gross carelessness in copying the record. The fact that there was no’ judgment attempted to be entered (at least two suits having been commenced at different periods,) leads to the suspicion that there was but one note, upon which two attorneys, at different times, brought suit. If this was the fact, it begets another suspicion, that the assessment of the amount due was entered in the records in 1873 instead of 1863, because the amount due computed in 1873, (deducting the payments) was about the amount entered as assessed to be due in 1863, and the entry of the amount of $8,405.21, due as of 1863, was a gross fraud or a serious mistake.

These suggestions are offered for the consideration of the counsel of both parties.

The proof shows that there was no final judgment entered in October, 1863. In November, 1873, the attorney Hagan first appears and enters a motion in behalf of the plaintiff, that “judgment wane pro tunc be entered upon the assessment of damages made in the cause at the fall term, A. D., 1863, to-wit: the thirteenth day of October, A. D., 1883, upon which assessment of damages the clerk omitted to enter up judgment.” The clerk testifies that instead of entering the judgment nu/nc pi'o tunc under this motion, he, under the order of the court on that motion, filled up the blanks in the records of the court held in October, 1863, thus making it appear upon the face of that record that the final judgment had in fact been entered in 1863, ten years before the motion was made, while it is not shown that the court in 1863 had ordered, judgment to be entered.

It is apparent by this testimony, that at the time of the purchase of lands at the sale made by the administra-trix in December, 1863, this judgment was not, and was not in a proper condition to be docketed, as a lien upon the lands, and that the final judgment had not been entered or docketed until the purchaser and his grantee (complainant,) had “quietly possessed” the lands for the period of ten years under the administrator’s sale.

No explanation is given of the reason why the judgment was not perfected at an earlier- period, upon one or upon the three notes of large amount. Remington does nothing. The lands brought a large amount of money to the estate, the personal estate was worth, as appears by the proofs, about forty thousand dollars, there were other moneys due in the form of credits, and but little indebtedness, yet the Remington claim is permitted to sleep, after suit brought and without final judgment, and no effort is made to collect it from the estate, until, after ten years of slumber, in August, 1873, the defendants, Wilson- and McHenry, attempt to ifbid in” this claim of oyer eight thousand dollars for the sum of ten dollars, upon’ a sale made under executions from a justice’s court. Tinder this supposed purchase Wilson and- McHenry have since assumed control of this large claim, have had a final judgment entered by an interpolation and alteration of the old records of the court, procured an execution to be issued after the records were so changed, and caused a levy to be made upon these lands.

We have not endeavored, or intended to pronounce the judgment void, as to Mrs. Standley. She is not a party to this suit. It will be a proper time to determine that question when she lays a foundation for it. Nor does the bill pray that the judgment be declared void, but only that, it s void as to the rights of the complainant.

We have seen that until November 21, 1873, the record did not show that any final judgment was entered or docketed, so as to become* a lien upon this land. (24 Maryland Rep., 538.) And we observe; further, that the court did not in 1873, upon the motion of Mr. Hagan, counsel for Remington, enter a judgment nunc pro tunc. No order to that effect appears, but the clerk testifies that, upon some order, he filled up the original skeleton form of the final judgment by inserting in it a sum of money. While it is common practice of the courts to order judgment to be entered nunc pro tunc, in furtherance of justice, such judgments will not affect third persons who have acquired rights. See Freeman on Judgments, sections 66, 68, 340,- and authorities cited.

It is insisted by complainant that the final judgment, as it now stands, is not a judgment against the administra-trix of J. C. Standley, deceased, as it appears only to be a judgment against “the defendant,” and who “the defendant” is, is only to be found in the entitling of the judgment, viz: “P. L. Standley, administratrix, &c.” and it does not appear therein of whose estate she was the “ad-ministratrix.” In view of our conclusion upon the other aspects of the case, it is not necessary to declare here the status of Mrs. Standley as to that entry.

Much of the foregoing discussion may not be, absolutely necessary to determine the rights of the defendants, Wilson and McHenry. They claim rights as purchasers of the Remington judgment, under executions from justice’s courts against Remington, by virtue of a levy under the latter upon the former. But first, we find that there was no final judgment at the time of the levy and sale to them; and second, a judgment is not the subject of levy and sale, under execution from a court of law. By the statute^ only “lands and tenements, goods and chattels,” are liable to be . taken in execution and sold. Thomp. Dig., 355.

dioses in action, as bills, bonds, notes, judgments, and the like, are not the subject of levy and sale under execution. I Cowen, N. Y., 240; 2 Blackf., Ind., 361; 23 Tex., 508; 4 Minn., 407; 23 Iowa, 104.

These defendants, therefore, acquired no title to the judgment, nor would they have had title if the judgment had been perfected at the time of the supposed levy and sale. All the proceedings had, and taken by them, or by their procurement under such supposed title, are of no avail, are unauthorized and void. They pretend to have no other right except under such sale, and they have no defensible standing before the court.

The decree of the Circuit Court must be affirmed.  