
    Kegans v. Allcorn.
    II does not appear to have been necessary by the Spanish law to make the heirs parties in order to »U\ est the interest of an estate.
    Where an administratrix was sued in 1838 in the District Court for the specific performance of a contract of her intestate to convey land, and she named in her answer the children aud heir- of her intestate, all of whom were minors, and for whom the court appointed guunlkr.is »ul htcm, who appeared and answered: Held, that in the absence of any positive regulation or provision on the subject it was competent thus to make the minor heirs partió*': they were concluded by the judgment, and that they were not entitled to a writ of onor on attaining full age. (Noto ».)
    
    The ordinau — * of U2d January, 1830, (Hart. Dig., art. 983,) introduced the Louisiana law merely as the l.iw of procedure in the settlement of successions; it did not. furnish the rule of doeifion or practice in suits between the (‘state and third parties in the District Court.
    Persons improperly omitted may bo made parties in the progress of a cause, and the manner of doing it. when not prescribed by positive law, must be determined and regulated by the courts. (Note <>.)
    Where there was no positive provision of law requiring it, the court said: “ No sensible object “could be .-diained by the service of prooes* on an infant of eleven years, and there can “ bo no rea-mi for requiring the performance of that idle formality.”
    The security of property, the repose of society, public policy require that the proceedings of the courts in former times, under which rights wore supposed to have vested, and on the faith of which property has been transmitted, should be upheld whenever this maybe done with»-in violence to the established principles and usages of the law.
    Error worn Washington. This suit was brought in 1838 by the defendant in error againd Nancy Kegaus as administratrix of James Kegans, deceased, for the specific performance of a contract hot ween the plaintiff and the defendant’s intestate for the conveyance by the latter to the former of a half league of land.
    The. defendant in tier answer named the children and heirs of tier intestate, James Kegans, all of whom were minors. The presiding judge thereupon appointed an attorney ad litem for each of the heirs, who appeared and answered for (lie heirs whom they respectively represented. At the Spring Term, 1830, tile court rendered a final degree in favor of the plaintiff against (;lie heirs and legal representatives of Kegaus. Ou the 5th of November, 1830, the plaint iil's in error, heirs of James Kegans, the eldest of whom was eleven years old when (lie judgment was rendered, obtained this writ of error.
    
      J. J). (i'iil'lings and G. W. Ilorton, for plaintiffs in error.
    T. Under the idea ■that some objections will he raised to the right of the plaintiffs in error to maintain the. present proceeding we advert to some authorities in support of the. rigid.
    lsl. Are, the present plaintiffs in error the proper parties to prosecute this writl Tomlin in his Law Dictionary gives the following mies : “Any person “ damaged by error in the record, or that may be supposed to he injured by it, ‘“may bring error to reverse it, whether lie be party or not.” The heir may bring error to reverse the judgment against the one under whom lie claims, lie who is made party by the law may bring error, although not originally a party. (L Toml., G48-9; 2 Bac. Ah., 450, Title Error.)
    2d. Are (lie plaintiffs in error barred by limitation ? Wo say not. At the time (he judgment was rendered in the court below the Spanish law of prescription was in force in Texas. We find nothing in that law, as given in the Parlidas, relating to the limitation of appeals, — writs of error not being kuown to (lie Spanish law. But the sixth Partidas, Title 29, provides that minors and married women do not lose by prescription.
    The acts of limitation by the Congress of the Bepublie, (see acts of 5th Congress, p. 102,) we think, easily admits of an interpretation in favor of the right of the plaintiffs in error to prosecute this writ. The 9th section provides that no writ of error shall be granted after two years after final judgment. But the 11th section says that no law of limitation shall run against minors, married women, &e.; and when the limitation does not commence prior to the disability the same time is allowed such persons after removal of the disability as is allowed to others.
    
      The plaintiffs in error being minors at the rendition of tlie judgment, the limitation consequently did not commence prio'r to the disability of minority, and therefore two years, tlie time allowed in the law to bring a writ of error, is given by law to the plaintiffs in error to prosecute their writ. In the case under consideration tlie record discloses the fact that the eldest of the present plaintiffs in error, viz, George W. Kegans, was a minor of the age of eleven years at the rendition of the judgment, that is, in March, 1 830. He would therefore be of age in March, 1849. Allowing tlie two years after the removal of tlie disability of minority, he would have until March, 1831, to bring his writ of error; tlie writ being obtained in November, 1SD0, some four months of the term liad yet to run when this proceeding was. commenced. It will follow as a matt er of course that if the eldest of the minors is not barred by limitation the younger are not.
    Having, as we confidently suppose, established the proposition that tlie proper parties have been made to tills proceeding, and that the plaintiffs in error are not prejudiced by any law of limitation, we proceed to discuss the several assignments of error, and
    IT. 1st. That there was error in this, that tlie plaintiff below proceeded against tlie administratrix of Kegans alone.
    The 3d section of an ordinance of the provisional government entitled “An ordinance for opening the several courts of justice,” &c., (see printed volume, p. 135-0,) provides that all proceedings relative to successions, matters of probate, et cetera, shall be regulated and governed agreeably to the principles and •laws in similar cases in the State of Louisiana.
    Tlie case under consideration was a proceeding relative to a succession. It was a suit against tlie succession of James Kegans, and is such a case as was comprehended in the terms of the ordinance cited. It then was a case to be regulated and governed by tlie laws of Louisiana. If we examine the Louisiana law in reference to such cases we see at once that the error assigned was committed in the court below.
    Suits against vacant successions must be against the heirs and the curator appointed to administer the succession when the heirs or any of (hem are present or represented in the State. (Code of Practice, art. 122-3, p. 42.)
    Tlie record discloses the fact that the heirs were present in the (Republic when the suit below was instituted, and they should tlierefore have been made defendants with the administratrix; and if tlie heirs had not been present, that fact should have appeared affirmatively in the petition to have authorized tlie plaintiff to have proceeded against the administratrix alone. The naming of the minor heirs in the answer of the administratrix did not make them defendants.
    III. And this brings us to the second assignment of error, viz, that the court erred in treating the minors as defendants upon the mere naming of them by the administratrix in her answer.
    Under no system of laws can a party be treated as a defendant to a suit till he be notified of the suit b3r the service of some sort of process upon him.
    The Stli section of the act of congress requires that the petition should contain a clear statement of the names of the plaintiff and defendant, and “(here ‘ ‘ shall be delivered to the defen dant by the sheriff a copy of the writ and petit ion. ” (See page 200, vol. 1, Laws of Republic.) Tlie minors not having been named in the petition, and not having been served with any notice of the suit, could not be properly treated as defendants in the suit.
    IV. As to the third assignment of error. An attorney ad litem for minors is not known to any laws. But admitting that in this case attorney was synonymous with curator or guardian, still tlie court below erred in the a | >] ¡ointment. Whore a suit is instituted against a minor who has no guardian, the plaintiff may apply to the judge of the place to appoint some one to assist, the minor and answer for him. (Partida 3, title 2, law 11, vol. 1, p. 32, and see art. 118, Code of Practice, p. 38, to the same effect.) Consulting the laws just cited it will be seen that it must be shown affirmatively that the minor has no guardian, and the plaintiffs must demand that the appointment must he made by the judge. Neither is it shown that either of the curators appointed ever took the oath faithfully to discharge the trust. A judgment against a minor without his having a guardian or some one appointed to represent him in tin' suit is invalid. (Partida 3, title 2. law 11, vol. 1, p. 32.) A judgment against one not previously cited is not valid. (Partida 3, title 22, law 2, vol. 1, p. 274.)
    V. Having, as we confidently suppose, shown that the proceedings in the court below were wholly irregular and erroneous, we proceed now 'to notice hrieily the. more important point in the cause, viz, that the court below erred in giving judgment at ail in favor of the. plaintiff below.
    IVe lay down the proposition that taking the facts alleged in the petition of plaintiff below and as found by the jury to'be true, still the plaintiff below was not cut it led to recover. The contract or bond sued on, and which is made' a part of the petition, shows that Kegans liad contracted to sell a part of the league of laud received by him as a colonist in Austin’s colony. It is also shown that lie had received the title of possession of the land on the 23d March, 1831, ami that on the lltli May of the same year, that is, in less than two months after he received the title of possession of the land, he sold or contracted to sell a pari of it. He could not then by any possibility have completed the cultivation of I ho laud awarded to him as a'colonist. The 27th article of the colonization law of 1825 prohibits in positive terms the new settlers from selling the lands awarded to them until they bad completed the cultivation of those lands. Kegans not having completed the cultivation of his land at the time ho undertook to sell a part of it, he was clearly under the prohibition contained in the 27lh article of the law of colonization, and the sale or contract was therefore void. It was a mere nullity and not enforcible in a court of justice. That the sale was illegal, and that parties to it were perfectly aware of it, is shown by the contract itself, for Kegans’ covenants convey only when the laws will permit. Believing, then, that the contract between Kegans and Allcorn was otic prohibited by the law and therefore void, we deem it sufficient for the present purpose t.o cite the court to tlio decision of this court in the case of I-Iunt v. liobitison, 1 Tex. It., 748, and the reasoning of the court in that case and the authorities there cited.
    
      Webb OídJiam, for defendant in error.
    The most material question in this case, is whether the heirs of Kegans should have been made parties defendant to the suit instituted by Allcorn for a specific performance of the, contract entered into between himself and the deceased in the lifetime of the latter. If the ordinance of 1S3G, providing- “that all proceedings relative to successions, “matters of probate, etcetera, shall be regulated and governed agreeably to “tiie principles and laws of the State of Louisiana,” introduced the provision of tint “ Code of .Practice” prescribing the manner in which a specific performance of a contract for lands might be'enforced against the representatives of a deccasc-d person, it was necessary that they should have been made parties, otherwise it was not.
    The rights of the administrator in regard to the estate were not acquired tinder the laws of Louisiana, but under the laws of Spain then in force in Texas. The laws of Louisiana only regulated the mode of proceeding; the laws of Spain determined the interest. Under the laws of Louisiana the administrator did not possess such a complete title to the realty as to render the heirs unnecessary parties in suits for specific performance of a contract in relation to the same. Under the laws of Spain lie did.
    Such we understand to be the decision of this court in Thompson®. Duncan, 1 Tex. 485. It is there said : “These distinctions ” (the distinctions of the common law,) “are unknown to the civil law as it prevailed under Spanish “modification in Texas. ****** * All property without distinction “ was classed together.”
    
      But such is not tho case in "Louisiana. All property without distinction is not classed together, hut the heirs have an interest in the realty of their ancestor which cannot be divested without their being- made parties to the proceedings instituted for that purpose. But not having such interest under the Spanish law the reason for making- them parties to the suit does not obtain, .and it is therefore unnecessary.
    It is believed that the acts of the Congress of the Republic and those of the legislature of tile State do uot clothe the administrator with more extensive powers than those he possessed under tho Spanish laws. Such seems to be the opinion expressed by this court in the case of Thompson v. Duncan, supra. The court say: “The Spanish civil law being the basis of our jurisprudence, “much of our legislation after (he revolution was imbued with its influence ; “ hence our act of Congress passes all of the estate of the decedent into the “hands of the personal representative,” &e.
    Under this act of Congress it lias been repeatedly decided by this court that the administrator alone is the necessary parly to suits for land. (Thompson v. Duncan, supra; Graham «>. Yining et al., 2 Tex. It., 433 ; Moore v. Morse, 2 Tex. It., 400; Howard v. The Republic, 2 Tex. It., 311; Ilolt v. Ciemmensj 3 Tex. R., 423.)
    The case of Thompson v. Duncan decides that under the Spanish civil law .in force at the time of the institution and determination of this suit tho entire estate, real and personal, was cast upon the administrator; that the probate law conferred upon him the same rights as those acquired under the laws previously in force; and that case with tho succession of cases since decided and which we liave cited above, has settled the question (hat the heirs are neither necessary nor proper parties to a suit in relation to land, and that the administrator alone is the proper person through whom tlicir interests can be asserted.
    Hence we contend that as the rights and powers of administrators in Texas previous to 1840 were derived from (he Spanish civil law then in force, and not from the probate laws of Louisiana, which did not clothe heirs with as extensive powers, that article of tho code of practice requiring the heirs to be .made parties to suits for land was not adopted by the ordinance of 1830, providing- “that al! proceedings relative to successions and matters of probate1, et cetera, shall be regulated and governed agreeably to the principles and laws “ of the State of Louisiana.”
    If our conclusions are correct upon this question, and that they are we liave but little doubt, the administratrix of Kogans was the only propér party defendant to tills suit, and consequent Iy (lie heirs liave no rigid to prosecute this writ of error, and the same should be dismissed.
    If tlie heirs wore not necessary parties and were not properly made defendants, they cannot seek to avoid the judgment for errors in the court below of Which tlie administratrix alone had the right to complain.
    It is conceded that the heirs were not made parlies to the suit and that tlie •order of tlie court appointing “curators ad litem” for them did not make than such, because process had neither been prayed against or served upon them. The judgment, so far as it affected than, was a nullity. They had no interest in the subject-matter of controversy which was not represented by the adminis-tratrix, and were deprived of no right by tlie judgment against them.
    The decree against tlie administratrix was valid and binding upon her in her representative character, and transferred tlie interests of the heirs of her intestate and conveyed to Allcorn the land according to (lie contract between him and Kogans. So far the judgment is valid and binding.
    If the judgment is void as to tlie heirs, it is not so as to the administratrix .and furnishes no cause for its reversal as to her. A void judgment is no judgment and cannot be reversed, but its nullity may be declared by tlie court.
    - We conceive that this court can do no more than simply declare tlie decree a nullity, so far as it affects tho heirs, and dismiss tlie writ of error, leaving the deems of tlie District Court in force, against tins administratrix of Kegans, who was alone tlie proper party and tlie only parly made a defendant in the canse.
   Wiiekler, J.

It is insisted on helialf of the plaintiffs in error that it was incumbent, on the plaintiff below to have made the heirs of Janies Kegans parties to tlie suit; that lie did not do so, and that consequently the judgment is erroneous; that their rights arc not concluded by it; and that, being miuors, limitation did not run against their right of appeal until within less than two years next before the bringing of this'writ of error.

We have boon referred to lib provision of tlie Spanish law in force here at the time which required that to divest the interest of 1 lie estate the heirs be made parlies. But reference is made lo the ordinance of tlie 22d of January, 183G, (Hart. Dig., art. 983.) and to the Code of Practice of the State of Louisiana. The ordinance introduced the Louisiana law merely as the law of procedure in the settlement of successions, but it had no reference to a ease like tlie present. This was not a “proceeding relative to a succession” within the terms and meaning of the ordinance. That related to the proceedings in the opening and adiiiiiiistrafion of the succession in tlie court which had'cognizance of that subject. Put it did not furnish, nor was it. intended to furnish, the rule of decision or practice in suits between tlie estate and third parties in the. District Court. Tliis was a suit between the estate and the plaintiff, not in relation to .the administration or settlement of the succession, hut to property which once belonged lo the deceased and had been sold by him. Neither the ordinance nor tlie Code of Practice of Louisiana had any application to the case.

But if by the. laws in force at tlie time it was necessary that the heirs should have been made parties fo the suit in order that the. decree, might bind them, .tliis, it is conceived, was done in tlie present case. There can 1)0 no legal objection t o tlie making of parties during t lie progress of a cause who may have been improperly omitted in tlie bringing of the suit. Tliis is tlie, constant practice in courts of chancery. In what manner it shall he done when not directed by positive law must lie determined by the practice of the courts, and, like other matters of practice, is subject to bo regulated by them. Tlie courts of tliis country at that day were not subject to the rules of practice of courts of either common law or "chancery, and their proceedings are not to be tested by those rules. We are aware, of no rule of positive law which proscribed the manner in which tlie heirs should be made parties in a case like the present, if indeed that, were necessary. The course adopted was, it is believed, the prevailing if not the universal practice at the time, whore it was proposed by the judgment to conclude the rights of infants, and no reason is perceived why it did not. afford them as effectual protection as a different practice would have done. No sensible object could be attained by the service of process on an infant of eleven years, and there can be no reason for requiring the performance of that idle formality. Under-tlie practice adopted in this case many rights have been acquired and a vast amount of the property of the country has been held and transmitted. And those rights ought not now to be disturbed unless for very cogent reasons, founded in a legal necessity. It ought first to be clearly shown that they were acquired against law. The security of property, the repose of society, public policy require that the. proceedings of tlie courts in former times, under which rights were supposed to have vested, and on tlie faith of which property lias been transmitted, should be upheld wheneve • tliis may be done without doing violence to the established principles and usages of tlie law.

We are aware of no usage or principle of tlie law in force here at the. time which was contravened by tlie practice adopted in tliis case. We think it was competent for tlie court, in the absence of any positive regulation or provision on tlie subject, thus to make tlie heirs parties. Having been made parties .to the suit, and mat having appealed, tlie plaintiffs in error are concluded by the judgment. (Taylor v. Duncan, Dallam.) The writ of error must therefore be dismissed.

Note 5. — üpon general principles, as well as by the statute of February 2,18-M, in an action for the specific periormanee of a contract by the decedent for tho convcyanco of land, it is not necessary that tho heirs should be made partners in order to bind them. (Shannon v. Taylor, 16 T., 413; Ottenhouse v. Burleson, 11 T., 87; Owen v. Shaw, 20 T., 81: Millican v. Blillican, 24 T., 44Í.)

Noth 6. — Grassmeyer v. Beeson, 13 T., 624; Lawler v. White, 27 T., 260; Thouvenin v. Rodri-gues, 24 T., 468.

Writ of error dismissed.  