
    The Lessee of Demas Adams v. Samuel Jeffries.
    An administrator’s sale, made under an order of court, since 1824, without showing that the heirs were parties to the proceeding, is void.
    The case of Weyer v. Zane, 3 Ohio, 306, explained.
    This was an Action of Ejectment from Licking county, submitted to the court upon an agreed statement of facts.
    To support the plaintiff’s title, he offered in evidence—
    First: Proof that John Faulkner died seized of the tenements.
    Second : An order of sale to his administrator, from the Common Pleas of Franklin county, in April, 1833, which, after reciting ^that the case came on to be heard on an agreed statement of [254 facts, and the court, being satisfied that the estate of Faulkner was insolvent, orders the premises to be sold. Further proceedings show a regular sale, confirmation, order for a deed, and administrator’s deed. The plaintiff has whatever title passed by these proceedings.
    The question, therefore, for trial, is, whether the plaintiff can recover by the bare production of the order for sale, without proof of petition filed, service of process, or of proceedings anterior to the order.
    
      The transcript from the record, which was offered in evidence, is as follows:
    
      Court of Common Pleas — April Term, 1833.
    B. Sells, administrator of John Faulkner, v. Faulkner’s Heirs, et al.
    
    Petition to sell land.
    This cause came on to be heard upon the agreed statement of facts, and the court, being fully advised, and being satisfied that the claims, mentioned in said statement, are legal claims against the estate of said Faulkner, and that said estate is insolvent, and that there are no personal assets belonging to said estate, the administrator is ordered to sell the premises, in the petition described, according to law, and make return of his proceedings to our next term, to which time this cause is continued. And afterwards, to wit, at the September term of said court, in the year first herein aforesaid, came Benjamin Sells, the administrator, and reports to the court here, that, in pursuance to the order of the court at the last term, he offered the lands, in the petition mentioned, at public auction, having advertised the same agreeably to law ; and Demás Adams and Ralph Osborn having bid, for the 173 53-160 acres, in the petition mentioned, to wit, range twenty-two, township five, half section one, the sum of $2.50 per acre, the same was struck off to them ; and the said Demás Adams and Ralph Osborn, having bid, for the tract of 320 acres, the east half of section seven, township nineteen, and range seventeen, in Licking 255] county, in the petition mentioned, the sum of $2.50 *per acre, the same was struck off to them; and Elizabeth Henry, having bid, for the 150 acre tract, off the south west corner of section one, township five, and range twenty-two, in the petition mentioned, $2.10 per acre, the same was struck off to her, she being the highest and best bidder, and said several bids being more than two thirds the appraised value. And the court, having carefully examined said report of the premises, in the petition mentioned, and finding the same made agreeably to their orders, and the statute in such case made and provided, it is ordered, that said sale be, in all things, confirmed; and it is further ordered that the administrator make deeds to the several purchasers accordingly.
    
      The State of Ohio, Franklin county, ss.
    
    I, Lyne Starling, Jr., clerk of the court of Common Pleas of said county, certify the foregoing to be truly and correctly taken and copied from the journal of said court, in my office. In testimony whereof, I have hereunto subscribed my name, and affixed theseal of said court, at the court house, in the city of Columbus, this 12th [L. S.] day of November, A. D., 1842.
    Lyne Starling, Jr., Clerk.
    Upon the circuit, the order for sale, and proceedings under it, were ruled out, and the case now comes up, on a motion by the plaintiff, for a new trial.
    T. Ewing and Henry Stanbery, for the plaintiff.
    The first objection urged to the admission of the record in evidence is, that it is not a full record, but a transcript merely ; and counsel cite Gilbert’s Ev. 17 ; 2 Institutes, 273 ; and Starkie’s Ev. 189, in support of their objection.
    There is some mistake as to the authorities, as we can find nothing on this subject in Gilbert’s Evidence, or 2 Institutes, at the place referred to ; and Starkie merely says, that, in some special eases which he puts, a judgment may be given in evidence, between persons who are not parties, or privies *to it, but he does not, at all, intimate, [256 that a complete record must be produced, in order to make the judgment evidence.
    It is obvious, that the necessity of producing the whole record depends upon the object for which it is to be used. If it be a question of res judicata, or estoppel at law, you must have the whole record to show that the exact case arose in the pleading, and that there were a verdict and judgment upon the very matter, and so of like cases.
    But there is no objection to giving a certified transcript of part of a record in evidence, if the part of the record certified be evidence, of itself, without the whole record. If the judgment, or order, in this ease, would be evidence, the record book being produced, then also the certified transcript of the judgment, or order, would be evidence. So this objection resolves itself at last into the question, whether it is sufficient to show the order, etc., without the other proceedings ; not whether these orders are sufficiently verified to make them evidence. And so are the authorities. It is said, in Buller’s Nisi Prius, 235, that where a party wants to avail himself of the decree only, and not of the answer, the decree, under the seal of the court, and enrolled, may be given in evidence, without producing the bill and answer. And it seems very clear, that, when the existence and contents of the decree are all that need be proved on the trial, a certified copy of the decree is good evidence to prove it.
    So it is held in the case of Jones v. Randall, Cowper, 17, if the fact to be shown is merely that a decree has been made in the Court of Chancery, or, that a decree made there has been reversed on appeal, proof of the previous proceedings will not be necessary. And in case of an ancient decree, if the bill and answer can not be found, after proper search, the decree alone may be admitted.
    If a part of a document be lost, and part be in the power of a witness, the part must be produced, and he may testify to the rest. Rowe v. Brenton, 3 Mann, and Ryl. 271.
    Pratt, C. J. The bare producing the postea, is no evidence of the 251] verdict, without showing a copy of the final judgment, *because it may happen the judgment was arrested, or a new trial granted : but it is good evidence that a trial was had between the same parties, so as to introduce an account of what a witness swore at- the trial, who is since dead. Pilton v. Walter, 1 Strange, 162.
    An affidavit of Lee was offered to be read ; objected, that he stood convicted of perjury, and the conviction was produced But, per Lord Mansfield, a conviction upon a charge of perjury is not sufficient unless followed by a judgment. I know of no case where a conviction alone has been an objection, because, on a motion in arrest of judgment, it may be quashed. Lee v. Gansel, Cowper, 3.
    To prove a setoff, the defendant produced the record of a verdict, on a trial wherein the present defendant had been plaintiff, in an action against the present plaintiff, in which he had obtained a verdict for £245. The postea was so indorsed, etc. Counsel for plaintiff contended that the mere production of the postea was not, of itself, sufficient evidence ; that the judgment ought to be proved. Lord Kenyon ruled, “ that the mere production of the postea was sufficient to establish the demand, to the extent of the sum indorsed, as the verdict in the catise.” His Lordship added, “that, in cases of issues out of chancery, the chancellor always admitted the production of the postea, as conclusive of the extent of the demand.” Garland v. Scooms.
    A verdict, in an action before a justice of the peace, is evidence, without producing the judgment; for the justice can neither arrest judgment, nor grant a new trial, but is bound to give judgment on the verdict. Felton v. Mulliner, 2 Johns. 181.
    If a record be entirely lost, proof by parol may be given of it.
    In ejectment, on trial for lands, where a recovery was shown to cut off an entail, it yas objected, that no sufficient evidence of it appeared, because neither the recovery itself, nor a copy of it, was shown ; for, in truth, it was lost. But the court did admit other proof of it to be sufficient, and said, *if a record be lost, it may be proved to a [258 jury by testimony. Ventris, 257.
    It appears, therefore, that there can be no question as to the admissibility of these orders and proceedings of the court of Common Pleas in evidence, but only as to their sufficiency. They are certainly evidence tending to prove the issue ; and if insufficient, parol evidence is admissible to show that the petition and process are lost, and, also, that due service was made upon all the defendants. The evidence, therefore, was, on this account, improperly rejected.
    In England and in New York, an execution can not issue on a judgment until the record is complete, signed and enrolled. The judgment is not entered on a minute book, and then signed by the judge, as with us ; but that book is a mere memorandum by the clerk. But with us, it is otherwise. An execution issues forthwith, upon the signing of the judgment in the minute book ; and the judgment in that book, so signed, is a justification to the party, and to the officer, for issuing and executing final process. The minute book itself, and, consequently, a certified or sworn copy from it, is good evidence of the judgment, in all cases where the judgment only is required to be proved.
    And there are many cases, besides those which have been cited, in 'which a verdict, a decree, or a judgment alone, would be admissible in evidence, and sufficient proof of a fact. Suppose a clerk issue an execution which is delivered to a sheriff, who levies it, and an action is brought against the sheriff and clerk for trespass. Is not the judgment on his minutes, signed by the judge, sufficient to justify the clerk, and the judgment and execution sufficient, also, for the sheriff?
    And what is sufficient for the officers is sufficient also for the purchaser, under a judicial sale. If the sheriff be not a trespasser, his sale transfers the property. Doe ex dem. Bland v. Smith, 2 Stark. Cas. 199 ; Eng. Com. Law, vol. 3 ; Doe v. Thorn, 1 M. & S. 425; Dyer, p. 363, pl. 24.
    The authorities cited with respect to jurisdiction, relate to entirely different matters from this ; no such question was ever *heard of, [259 upon a judgment of a domestic court of general jurisdiction — as of the court of King’s Bench, or Common Pleas, in England, and the like of our court of Common Pleas — they have jurisdiction of all persons, and all things, prima facie. You do not affirmatively show jurisdiction, in order to sustain their judgments ; that is necessary only in case of judgments in courts of limited or special jurisdiction, and, as it would seem, in foreign courts. It is not, therefore, here, a question whether the court had jurisdiction to render this judgment or order, but whether enough is shown to prove this an order of the court, between the parties in the cause. In order to prove the judgment, in behalf of a purchaser at a judicial sale, must we prove, as an affirmative fact, that the defendants were brought into court by the service of process, or voluntarily appeared in the cause ? If we must, it unsettles all our notions on this branch of the law.
    In England the record contains no such proof — that is, the full record, or roll — or, if it contain it, it is a merely accidental circumstance, as when a defendant appears by attorney, and files a plea, or makes a motion in a cause; but, where a judgment is rendered by default, there is no record evidence that the defendants appeared, except the presumption arising from the fact that the court rendered a judgment, and this is evidence enough.
    But it would be a very great injustice, if a judgment should be rendered against a defendant who was not served with process, and his property should be thereupon seized and sold; it would be against all the rules of law, as every man is entitled to his day in court, and ought not to be condemned unheard. Certainly, but our courts know that just as well when they render a judgment, as when they are about to receive a judgment in evidence, in support of a judicial sale, and they guard against that evil, by rendering no judgments, except when the parties are all before them; and the judgment is the only evidence which the law requires, to show that the parties were in court. But there is proof here beyond this. The second order offered in evidence 260] was made upon an .agreed case ; agreed *by whom? The court would not notice an agreement, and enter an order upon it, if made between others than the parties litigant. Those parties, therefore, were present, by themselves or their counsel, and agreed to the order.
    It would not do to hold that the title of a purchaser is avoided because he can not show process served upon the judgment debtor. No one, in practice, ever looks beyond the judgment, in order to advise his client that he may make the purchase ; all our books, of high and low authority, tell us he need look no further. But, suppose we do look, and find a summons duly served — who knows where the scrap of paper will be, when the complete record comes to be made up ? Court papers are already subject to many casualties; that paper will be subject to many more, if the purchaser loses, and the debtor gains title to the land by its destruction or loss.
    
      The reasons urged by the court, for sustaining the sales in Hoe’s case, 5 Reports, 91, apply equally in this, namely : “ If the sale of the goods, by force of the writ, should, by the non-return of the sheriff’s writ, be wrongful, then the sheriff would never find buyers of the goods of any defendant, by force of any writ of execution, which would be inconvenient,” etc.
    If the purchaser of land at sheriff’s sale hold his title subject to the proof of service of a summons, surely no prudent man will buy.
    The settled doctrine as to sales under decrees or judgments, is, that the purchaser is not concerned with the proceedings prior to the decree or judgment. 1 Vesey, sen. 195 ; 2 Scho. and Lef. 566 ; 9 Vesey, jr. 37; Jackson v. Bartlett, 8 Johns. 366; Young v. Taylor, 2 Bin. 227; Little et al. v. De Lancy, 5 Bin. 273.
    The purchaser (at marshal’s sale) depends on the judgment, the levy, and the deed; all other questions are between the parties to the judgment and the marshal. Wheaton v. Sexton, 4 Wheat. 507.
    In Armstrong v. Jackson, 1 Blackford, 212, the same doctrine is declared in the following language :
    *“ It is a fair presumption, that the judgment of a competent [2@1 court, which a bona fide purchaser sees of record, has been correctly rendered; and that the execution, shown him in the hands of the sheriff, has regularly issued. It may be safely presumed, too, that the sheriff has done his duty, in obeying the directions of the statute, as it respects the inquest, the advertisement of sale,” etc.
    “ It is important to the interests of both plaintiffs and defendants, that the title of a bona fide purchaser at sheriff’s sale should not be affected on account of any error or irregularity in the judgment or execution.”
    In Ludlow’s heirs v. Johnston, 3 Ohio, 561, purchasers at administrator’s sales are put on the same footing with purchasers at sheriff’s sales.
    “ There is no good reason,” say the court, “ why those who purchase from an administrator should not be viewed with the same favorable eye with those who purchase from sheriffs. In either case, it is proper that the order or judgment should remain final and conclusive upon all parties concerned, until set aside, annulled, or reversed.
    It will be admitted that the order of the Court of Common Pleas purported to bestow upon the administratrix sufficient authority to convey the demanded premises, and that she complied with all the requirements of the law, in the proceedings subsequent to the order of court, and in her conveyance. The grantee purchased in reliance on the authority of a court of competent jurisdiction. To deprive him of the property he thus acquired, would, in our opinion, be to act in opposition to the most established principles, and very much endanger the security of titles. Leverett v. Harris, 7 Mass. 292.
    Perkins v. Fairfield, 11 Mass. 227, is to the same effect.
    In the ease of Lessee of Goforth v. N. Longworth, 4 Ohio, 129, the defendant claimed under an alleged sale, and deed, by an administrator, made in 1814. In support of this title, he showed—
    1. An appointment of appraisers. 2. An appraisement, made December 11, 1813. 3. An account of sales, dated December 15, 1813, four days after the appraisement. But no other order of court. 4. A deed made by the administrator, which recited that the sale was made under an order of court.
    The court held that the want of an order of sale was fatal. They say that the settled policy is to give a liberal construction to statutes authorizing sales by executors and administrators, and that all reasonable intendments are to be made in their favor.
    They speak of the order, or judgment, for the sale as the essential thing ; “ the foundation of the executor’s or administrator’s power to sell.” Again, they say : “ Were such a judgment, order, or direction produced, it would be correct to infer that it was rendered or made upon a proper state of facts.” Ibid. 130.
    The statutory provisions, in respect to cases of sale of real estate, by the personal representative, are intended to protect the interest of heirs and creditors, as well as that of the purchasers. The power of the personal representative, over the real estate of the deceased, is derivative, and limited. It is derived from the act of the court, in conformity with the law. The discretion of the court must be exercised and declared upon the subject; and, without this, the act of the' executor or administrator is void, because based upon no legal foundation. It is a case of acting under a power, where no power is conferred. The act, must, therefore, be void. Ibid. 131.
    And, in the close of the opinion, referring to the necessity of a substantial compliance with the requisitions of the statute, it is said, “ This must appear in the record, or arise on a just implication from it.”'
    The doctrine of this court, in reference to sales by administrators, is yet more distinctly declared in the case of Ludlow’s heirs v. Johnston, 3 Ohio, 560. It is there said:
    
      “ If the Court of Common Pleas, acting as a court of probate, or Orphan’s court, had jurisdiction, an end is put to the question; the evidence ought to have been received. We can not ^inquire, col [203 laterally, whether that jurisdiction was properly exercised. The order may have been unadvisedly or erroneously made, but the purchaser has innocently acquired rights of which he can not be divested, so long as it remains unreversed. Under our present existing laws, real estate can not be sold for the payment of the debts of a deceased person," until it is ascertained that there will be a failure of personal assets. The Court of Common Pleas must be satisfied of such failure, before it can, with propriety, order a sale. Yet, when a sale has been made, and its validity is questioned, this court will go no further back than to inquire whether it was ordered by competent authority. So far as the interests of the purchaser are concerned, we consider such orders equally available as judgments. The former can be no more impeached collaterally, because there was an abundance of personal estate to have satisfied all debts, than the latter can, by showing that the evidence under which they were recovered was insufficient.
    “ We are aware that, by adhering to this principle, great injustice may many times be done to heirs, for, it is too often the case, that those who attempt the settlement of estates are regardless of all other interests than their own. The consequences to be apprehended are not equally dangerous as those which would follow a different course of decision. While lands are sold for the payment of debts of deceased persons, every inducement should be held forth to encourage purchasers to give the full value of what they buy; and nothing can have a greater tendency to produce this effect than to afford them, when they have purchased, a reasonable protection.”
    It seems to us quite useless to go further in the citation of authorities on this question.
    But it is contended, and what was said by the court in this case, on the circuit, has given countenance to the argument, that it does not appear that the order for sale was made by a court of competent jurisdiction. If that be so, it is quite certain the proceedings are all .void; for the constant language of the authorities is, that the court rendering the judgment or decree must have jurisdiction of the subject matter.
    *There is no controversy as to the law, but, as we think, a [204 singular misapplication of it by the opposite counsel.
    No one doubts that the Common Pipas of Franklin, at the time they made this .order, was a court of general jurisdiction, and that it was the proper court having jurisdiction for the sale of this land by the administrator; and that is all that it is necessary to show. Here we find an order made by a court in a matter within its jurisdiction, and finding that, the intendment is in favor of a purchaser, that the pre^ liminary proceedings were all correct.
    It is argued, that the subject matter must not only be within the jurisdiction of the court, but, also, that it must be shown affirmatively, in support of the judgment, that the proceedings preliminary to the judgment were such as properly to bring the jurisdiction into exercise.
    If this is the doctrine, what is the meaning of the familiar rule that the purchaser need only look to the judgment, the levy and the sale?
    In tracing title through a purchase upon execution, who thinks of looking at the summons, to find whether the judgment debtor was duly served? All we look for is the judgment, being careful to see that it is such a judgment as the court had jurisdiction to render. Finding such a judgment, we stop, upon the legal presumption that all the preliminary proceedings were correct.
    There is one class of purchasers, in whose favor no intendment is made, who are bound to see that all the preliminary proceedings are strictly correct. These are purchasers of tax titles. The doctrine contended for by. the opposite counsel places purchasers at judicial sales upon the same footing.
    But there is. no warrant in the books for this doctrine. The eases which are relied upon give no sanction to it. They relate to judgments or decrees rendered by courts which were not competent to take jurisdiction over the subject matter, and in favor of which no presumption could be made; for that would be to raise a presumption against the law defining the jurisdiction of the courts.
    *Quite enough has been said, and decided by this court, to sot this question at rest.
    In Allen v. Parish, 3 Ohio, 191, the court refer to the case of Wheaton v. Sexton, 4 Wheat. 503, (quoted in the commencement of this argument,) and re-affirm the rule, that the purchaser at a judicial sale relies on the judgment, the levy and the sale. At page 191, it is said : “ The purchaser must look to see there is a judgment on which to found an execution ; that an execution has been issued, and a levy made, but is not bound to inquire into the regularity of all the ministerial acts of the sheriff, before or after the sale.”
    Weyer v. Zane, 3 Ohio, 305, was a scire facias to revive a judgment rendered without service upon, or notice to, defendant, upon summary motion. On demurrer to the scire facias, the court say : “ The demurrer assumes that the judgment set forth in the scire facias is so utterly irregular as to be absolutely void, and of no effect. We can not adopt this opinion. The court that rendered it was a court of compent jurisdiction over both parties and subject. However summary their proceedings, or however irregular, the solemn judgment of a competent and authorized tribunal can not be treated as a nullity. There is an explicit and formal judgment, and, although the proceedings upon which it is predicated may be unknown to our jurisprudence, Still, as in all other judgments, they are not open for inquiry except in a regular mode of re-investigation on writ of error or certiorari. It is seldom that the error complained of is in the manner of rendering the judgment itself. Generally, it is founded on some of the intermediate matters, for mistake in which, it is supposed the judgment stands upon an incorrect conclusion, with respect to facts or principles. There is no substantial distinction between this and other cases, that we can perceive. The demurrer must be overruled,” etc.
    The language of these cases is explicit. They declare the true and safe doctrine. Following this doctrine, it may happen that injustice is sometimes done to individuals whose lands are sold under judgments or decrees. No system of law can *be made all perfect. ‘This [206 occasional injustice would be remedied at a fearful price, if the title of a purchaser was made answerable for it.
    From the earliest times, the law has favored purchasers under its judgments and decrees. The caveat it interposes is not a warning against the validity of its own solemn proceedings.
    This long continued encouragement has led to great confidence upon the part of purchasers. The tendency of modern decisions has been to strengthen this confidence.
    We do not pretend to say how much of evil would follow a decision against the title of this plaintiff; for, in one generation, a great proportion of .the real estate of Ohio passes, in some form, through a judicial sale. If all these titles depend upon the regularity of indorsements on writs — if the judgment or decree is nothing — if no intendment is made in favor of it, but the purchaser, or his remote assignee, is always bound to show affirmatively the regularity of the first steps in the proceeding — if this is to be so, we are very much mistaken, if a wider door was ever opened for rapacity and speculation.
    James R. Stanbert, for defendant.
    
      Where a record is offered in evidence, as the foundation of a title or claim, the only legal evidence is the whole record, or an exemplification of it; and “ where any record is exemplified, the whole must be exemplified, for the construction must be gathered from the whole taken together.” Starkie’s Ev. 189 ; Gilb. Law Ev. 17 ; 2 Inst. 273. In South Carolina, by statute, attested copies of all records, certified by the clerks of the court, are admissible as evidence. But the whole record-must be given ; it is not sufficient to produce extracts. 2 Nott and McCord, 201.
    Here is nothing but the statement of the case, the' names of the parties, and the orders of sale and confirmation. These orders recite that a petition was filed, or, at all events, refer; for a description of the land sold, to the petition; but the petition forms no part of the 267] record, the exemplification of *which was offered in evidence. The statute requires a complete record to be made in all cases, both at law and in chancery, and requires the record should contain the process, return, petition, exhibits, etc.
    Here is no order for the sale of the land in dispute. It is true, there is no order for the sale of the lands in the “ petition mentioned ;” but the petition itself, forming no part of the record, it can not be told from the order of sale whether this particular land was included in the petition. If the petition did not embrace the disputed land, and pray for its sale, the court could not direct such sale.
    In Goforth v. Longworth, 4 Ohio, 129, the court say — " To sustain a sale of lands by executors or administrators, the record must show an order of sale by the court, or the sale is void.” This record shows what is called an order of sale ; but of what land ? The order says, “ of the land in the petition and appraisement mentioned.” But neither the petition or appraisement form any part of the record, and therefore it can not be ascertained what land was ordered to be sold, except by inference and argument founded upon the recitals in the order of confirmation ; and it may be said this order of confirmation cures all objection to the obscurity of the previous order, and makes certain that which before was doubtful. But the validity of the sale, according to the language of the decision in Goforth v. Longworth, depends upon the order of sale. It is that which confers authority upon the administrator — without it he had no power to act; and if he did act in its absence, the confirmation of his acts by the court can not supply his original want of authority.
    This record does not show upon its face that the court had jurisdietion to order the sale of the lands in dispute. There is, in the first place, no petition filed by the administrator for license to sell; and, what is still more important, there is nothing to show the service of process, or notice of any kind to the heirs of Falkner, the intestate. These are questions, however, it is said, with which the plaintiff, who was a purchaser at this sale, has nothing to do ; and if there be a total want *of service or notice, the objection could-only be available [268 upon certiorari. Sales by an administrator, it may be said, are governed by the same rules as sales by a sheriff on execution; and the purchaser is only bound to look to the judgment, the levy and the sale, and the judgment can not be impeached collaterally. But even if the plaintiff, in this case, claimed, as purchaser of the land, under the judgment of a court, and, in making out the evidence of his title, produced the record of a court which did not show on its face that process was served upon the defendant, the proceedings would be absolutely void — not erroneous merely, but a nullity. For without proceás, the court rendering judgment acts without having jurisdiction. It is true, as a general principle, that where a court has jurisdiction it has a right to decide every question which occurs in a cause; and whether its decision be erroneous or otherwise, its judgment, until reversed, is regarded in every other court as binding. But, if it act without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void, and form no bar to a recovery sought, even prior to a reversal in opposition to them. Elliott et al v. Peinol, 1 Peters, U. S. C. 340.
    “ This distinction runs through all the cases on the subject; and it proves that the jurisdiction of any court exercising authority over a subject may be inquired into in every court where the proceedings of the former are relied on and brought before the latter by the party claiming- the benefit of such proceedings.” 1 Peters, 340, S. C.
    In 2 McLean, 479, Lincoln v Tower, it is said : When any court is called to receive, as evidence, the record of a judgment, foreign or domestic, its form and substance must necessarily be examined. Not, it is true, as a court of errors, but to see that it is what it purports to be, the record of a judgment. And if, upon the face of such record, want of jurisdiction appears, it can not be received as evidence. It does not bind the defendant, nor can it conclude his rights.”
    The question, then, is, had the Court of Common Pleas of Franklin county, where this order of sale was made, jurisdiction *of the [20§ matter ? And this depends upon the provisions of the law in force when the proceeding to sell was commenced. The statute of 1831 (3 Chase’s Stat. 1782, sec. 31) was then in force. This law required, that where the executor or administrator applied for authority to sell real estate of his testator or intestate, his application should be by petition, to which the widow and the lawful heir or heirs, etc., should be made defendants, and that the defendants should be served with process, or otherwise notified, in the manner prescribed in chancery proceedings. In order, therefore, to give the court jurisdiction to order a sale, the parties should have had notice, either by personal service, or by process of publication.
    I am aware the Supreme Court of this state has decided, in several instances, that they will give a liberal construction to statutes authorizing the sale of real estate by executors and administrators, and that they have also said, public policy requires that all reasonable presumptions should be made in support of such sale, especially respecting matters in pais. 4 Ohio, 129. And Judge Grimke, in his opinion, in the case of St. Clair v. Morris, 9 Ohio, 18, says, the proceedings of a court of probate are strictly in rem, and not in personam. But to appreciate the force of these decisions, as applicable to the present question, reference must be had to the legislation of our state, in existence at the time the land in dispute was ordered to be sold. The case of Goforth v. Longworth, 4 Ohio, 129, was decided under the law of February, 1810, and that of St. Clair v. Morris, under the law of January 5, 1816. Neither of these statutes required that any petition should be filed by the administrator, nor that any process should be served on the heirs or next of kin to the intestate. The court of probate was required to make the order of sale, upon the representation and proofs produced by the administrator, as to the situation of the personalty. The lands of a decedent, as well as his personalty, were considered a fund in the hands of his representative for the discharge of debts, and the administrator had the power of control over both. The application to sell was granted on the exparte 270] representation of the administrator, %nd was strictly a proceeding in rem. Hence the propriety of holding that the purchaser at such sales had no concern with any thing else than the order of sale. It was that which showed the authority for the sale; and when the parchaser could produce it, it was conclusive as to the regularity of all the previous proceedings. It was conclusive of the fact, that the administrator had produced satisfactory proofs to show the necessity for the sale, and had made the proper representation to the court of the condition of the personal estate. But it was conclusive only because the statute did not require that any record should be kept of any other part of the proceedings, except the order to sell. The representation and proofs of the administrator, preliminary to the order of sale, were merely matters in pais, and were not required to appear of record.
    But under the law of 1831, 3 Chase’s Stat., ut supra, which required process upon the heirs, and the filing of a petition, the proeeeding to sell lands to pay debts, became an adversary proceeding, and in all respects assimilated itself to a proceeding in chancery. This change of the law, so salutary in itself, and designed, no doubt, to prevent the mischiefs and abuses which had resulted from the former laws, which recognized the right of the heir of a deceased person in the lands of his ancestor, and gave him the privilege of contesting the claim of the administrator to subject it to sale, made it necessary that the greater caution should be exercised in the proeeeding, and that, like all other cases in chancery or at law, a record should be made of the whole pro - eeedings.
    The application to sell was no longer a proceeding purely in rem, but became also a proceeding in personam. The person of the heir, or next of kin, must be before the court before his interests in lands descended could be forfeited. The heir held the estate descended, subject to the claims of creditors; but his right could not be divested except' in the mode pointed out by statute. This record, therefore, not showing any service upon the heir, the order to sell his land is absolutely void. For it would be a violation of all legal principle to hold that the estate and property of a person may be confiscated, without ^notice to him, and without allowing any opportunity of [271 resistance ; and, especially, where the law requires expressly that the court rendering the judgment must have the party before them. It is assuming for the orders of a court a more conclusive character than justice or reason can warrant, and is opposed to the whole current of decisions on the subject.
   Lane, C. J.

The validity of transfers of land, by virtue of legal proceedings, are frequent subjects of examination in courts of justice. The governing principle in these eases, is, that whoever assumes to exercise powers conferred by law, must first show jurisdiction over the subject

The judicial proceedings of courts of general jurisdiction, exercising the ordinary powers of chancery or of common law, are presumed to he regular, and such courts are presumed to act within the scope of their authority. Every intendment will be made to support their powers. Yet, even in the proceedings of these courts, if they transcend the limits which the law prescribes, and assume to act where they have no jurisdiction, their acts are utterly void. Borden v. Fitch, 15 Johns. 121; Mills v. Martin, 19 Johns. 33; Latham v. Edgarton, 9 Cowen, 227 ; Snyder v. Snyder, 6 Binney, 483 ; Sumner v, Parker, 7 Mass. 79 ; Smith v. Rice, 11 Mass. 507.

I do not here inquire whether the mere omission of showing jurisdiction on the record invalidates their acts, or whether such judgments, although void when viewed as the foundation of rights, may not have some efficacy when used defensively, as ground of protection; but it may well be doubted whether it is not necessary to impeach them by positive proof of a want of authority.

Tucker v. Oxley, 5 Cranch, 185 : Exparte Tobias Watkins, 3 Peters, 193,202; Voorhees and others v. Jackson, 10 Peter, 449; Wood v. Mann, 1 Sumner, 578; McCormick v. Sullivant, 10 Wheaton, 192.

But how far such judgments are void or voidable, and whether there 272] exists any difference between the law and the *chancery rules of our courts, on these points, are matters which may be settled when eases shall arise that demand it.

Neither is it necessary that I should do more than allude to proceedings in rem. Of this class are proceedings among heirs for partition.

Glover’s heirs v. Ruffin. 6 Ohio, 255 ; Pillsbury v. Dugan’s Administrator, 9 Ohio, 117.

Proceedings by guardians to sell the land of their wards. Stall v. McAlister, 9 Ohio, 19. And proceedings by administrators before 1824, to sell decedents’ lands. 7 Ohio, 201.

These have properly no parties ; the possession of the object is sufficient notice to all who have rights to assert them. The authority of the courts depends upon having the subject of their action within their control. The legislature may require or dispense with notice; but the acts of courts are valid, when they have established their jurisdiction over the thing.

Where the law confers upon courts an authority, not after the course of the common law, over property, whose owners are required to be before them as adversaries, they act'as tribunals of special and limited jurisdiction. Bend v. Susquehanna Bridge and Bank Company, 6 Harris and Johnson, 130 ; Thatcher v. Powell, 6 Wheaton, 119 ; Denning v. Corwin et al., 11 Wendell, 647 ; Smith v. Fowle et al, 12 Wendell, 9.

It is necessary that such tribunals show they act within the scope of their powers. But after jurisdiction is once acquired, however irregular or erroneous their proceedings may be, they can not be collaterally impeached , and they conclude all persons, unless annulled by certiorari or appeal. A vast body of authorities, bearing on this point, may be found collected in 3 Cowen and Hill’s Notes to Philips on Evidence, 803 ; Ludlow’s heirs v. Johnson et al., 3 Ohio, 553 ; Atkinson v. Jordan et al, 5 Ohio, 294; Glover’s heirs v. Ruffin, 6 Ohio, 255 ; Pillsbury v. Dugan’s administrator, 9 Ohio, 117 ; Stall v. McAlister, 9 Ohio, 18 ; Thompson v. Tolmie, 2 Peters, 164; Voorhees and others v. Jackson, 10 Peters, 449.

*All these cases, however, assume that the jurisdiction of the [273 court is first established ; and no attempts are made to sustain their proceedings by intendment or presumption until after this essential prerequisite. Those judges who have been most ingenious in surmounting the irregularities of such tribunals, have been careful to show how the jurisdiction was not contested.

In Voorhees and others v. Jackson, 10 Peters, 449, the judge while obviating objections to irregularities, is careful to say they do not apply “ to the jurisdiction of the court over the case, to the cause of action, or to the property attached.” So Duncan, J., in 11 Serg. and Rawle, observes, that “ the purchasers need not look to matters previous to the decree, except to the jurisdiction and the parties.” And the reports of our own state carefully notice in this class of eases, that the jurisdiction has first attached. Glover’s heirs v. Ruffin, 6 Ohio, 255 ; Pillsbury v. Dugan’s administrator, 9 Ohio, 117.

But this want of jurisdiction may always be shown, as it renders the act done void or unavailable for every purpose. Slocum v. Wheeler, 1 Conn. 429 ; Mills v. Martin, 19 Johns. 33 ; Hyde v. Stone, 9 Cowen, 230.

The case of Weyer v. Zane, 3 Ohio, 306, deserves a passing notice in this' connection. The report assumes that a judgment without process is not void, and that the proceedings of a competent and authorized court can not be so irregular as to be a nullity. We find no fault with the judgment; it was in strict accordance with law. The practice act of 1813, 2 Chase’s Stat. 795, sec. 8, provided that the sheriff might take a “judgment bond ” from a defendant to whom he had returned goods, after levy; and when amerced for not making money, he might have judgment on the bond, at the same term, without further process.' The proceeding in that ease was under this statute ; and the reporter, without adverting to these provisions, has sought to justify a sound judgment, by stretching good principles too far,

*Applying our doctrines to the ease before us, we find that the Common Pleas, exercising the powers of a court of Probate, possessed the jurisdiction of ordering the sale of the decedent’s estate, upon a petition by the administrator against the heir. The jurisdiction did not vest unless the land belonged to the decedent. Griffith v. Frazier, 8 Cranch, 9, 24 ; Moore v. Tanner’s administrator, 5 Monroe, 46. Nor unless process was served upon the heirs. Messenger v. Kenter, 4 Binny, 97 ; Smith v. Rice, 11 Mass. 507, 513 ; Procter v. Newhall, 17 Mass. 81, 91 ; In the matter of Hemiup, 2 Paige, 320 ; In the matter of Hemiup, 3 Ibid. 310 ; Hallett v. Hare, 5 Ibid. 316.

The heir has a right to be a party to the proceedings, which deprive him of his estate; and we are constrained to deny the jurisdiction of a court which attempts to proceed without him.

It will be seen that this opinion affects no proceedings except those since 1824.

Motion overruled.

Note. After the foregoing opinion was pronounced, a motion was made for a new trial, on the ground of newly discovered evidence, which, upon special circumstances in this case, affecting subsequent purchasers, was sustained, and a new trial ordered.  