
    NOVEMBER TERM, 1844.
    Mary Ann Turnbull, Executrix of John Turnbull, deceased v. Thomas W. Endicott, et al.
    The Probate Court has power to set aside a sale for fraud, which has been made under its direction, when application for the purpose is made at the term to which the report of sale is returned. v
    Miter, when the application is made at a subsequent term.
    On appeal from the Probate Court of Washington county. The facts of the case fully appear in the opinion of the Court.
    
      G. S. Terger and Hurst, for appellants.
    '1. The decree of the Probate Court must be reversed, and the bill dismissed, because the Probate Court has no jurisdiction to set aside its own decree for fraud after the term at which it was made.
    Judgments and, decrees can only be impeached and set aside for fraud by an original bill. This exclusively belongs to the Chancery Court. By the Constitution, full jurisdiction is vested in the Chancery Court. The jurisdiction of impeaching or setting aside judgments and decrees is peculiarly cognizable in equity, and never has been exercised by any Probate Court. Story, Eq. PI. 340, 341.
    I am not certain, but I think this point was decided or adverted to in some case not reported, in which Judge Clayton delivered the opinion of the Court.
    2. But if the Court had jurisdiction, it was clearly erroneous not to make Mr. Skipwith a party, who purchased without notice of the fraud, as he alleged in his affidavit and petition.
    A bona fide purchaser, without notice of the fraud, wrould be protected, and he ought to have been made a.party. No principle is better settled than that a purchaser, without notice of the fraud, is not affected by it.
    
      Eustis, for appellees.
    We contend that the decision of the Court in this case must follow the opinion in the case of The Planters Bank v. JVeeZy, 7 Howard, 96. The record shows that a most valuable portion of the estate has been attempted to be sacrificed without any sort of regard for the rights of the creditors ; and this through positive misrepresentations of the agent of the adminstrator. These were made innocently on his part, but a sale under such circumstances ought not to stand. The administratrix, who ought to appear in the case on the side of the creditors, is arrayed against them, which is also unfair. The fraud, or mistake, being shown to the Probate Court, while the settlement of the estate is still depending in that Court, we cannot think that the order of confirmation precludes that Court from jurisdiction over the matter. The purchaser voluntarily made himself party to the cause.
    The Court will also see, from the record, that there is no citation to the heirs of Turnbull. The sale is ábsolutely void for this reason alone ; and, therefore, the judgment of the Probate Court, setting aside this sale, and ordering the property to be sold again, should be affirmed.
   Mr. Justice Clayton

delivered the opinion of the Court.

In this case, Endicott and others, creditors of the testator, filed a petition in the Probate Court of Washington county, at its October term, 1843, to set aside a sale of the real estate of the decedent, which had been made and confirmed at a former term of the Court. It stated that the sale had been made in May, 1842, under an order of Court made in December, 1841, and that the sale had been confirmed in August, 1842. The reason assigned'in the petition as the ground of the application for setting aside the sale, was fraud in the sale at the time it was made, on the part of the executrix, in representing the whole land to be subject to the payment of a mortgage-debt, when, in truth, only part was so subject.

No party was made to the petition excépt the executrix. Andrew Turnbull, who became the purchaser at the sale, and George G. Skipwith, who purchased of him, each filed petitions, praying to be admitted as parties to the proceedings. These petitions were rejected, and the Court made an order setting aside the former sale, and directing the executrix to make a re-sale. From this order, the case comes by appeal to this Court.

The question thence arises, whether it was competent to the Probate Court to set aside the order confirming the sale, at any subsequent term. That Court has power to set aside a sale for fraud, which has been made under its direction, when application for the purpose is made at the term to which the report of sale is returned. Planters Bank v. Neely, 7 How. 96. When the application is made at a subsequent term, the point assumes a wholly different aspect. More than once heretofore, we have had occasion to advert to this point, though it has never received a direct determination. Smith v. Hurd, 7 How. 201; Smith v. Denson, 2 Sme. & Mar. 339. To vacate a judgment, order, or decree on account of fraud, has, in England, been uniformly holden to pertain to a Court of Chancery alone. Neither the Ecclesiastical, nor Common Law Courts possessed the power. See 1 Yes. sen. 283. It cannot be regarded as in the course of administration of an estate. We adopt what is said upon this subject in 7 How. 201, and believe that such power is not confided to the Probate Court by the Constitution.

The decree of the Court below is therefore reversed, and the order setting aside the sale rescinded. The petition to that extent will be dismissed, without prejudice to any other proceeding that maybe instituted. For the purpose of compelling the executrix to make settlement of her account, it may be retained or dismissed in the Court below at the pleasure of the petitioners. To this end, the cause will be remanded to that Court.

Decree reversed, and cause remanded.  