
    GRAHAM’S HEIRS vs. GIBSON.
    Western Dist.
    
      October, 1839.
    APPEAL PROM THE COURT OP THE NINTH JUDICIAL DISTRICT, POR THE PARISH OF CARROLL, THE JUDGE THEREOF PRESIDING.
    The signature of a constable to a return of service of citation, made by him, will be taken as true, without proof being made of it.
    The nullity of a probate sale cannot be sought in a direct action in the District Court. The order of sale by the Probate Court is held to be a judgment which protects purchasers under it.
    So, where heirs sue, in the District Court, to recover from the purchaser and third possessor of property sold at the probate sale of their ancestor’s estate, on the ground that the proceedings and sale by the court of probates was illegal, and should be cancelled and annulled: Held, that this is in the nature of an action of nullity, and the District Court is without jurisdiction.
    
      •This action was instituted by the Lutor of two of the heirs of W. Graham, deceased, and by the under tutor of the other heir, to annul and set aside the probate sale of the property of the estate of their ancestor, which they allege was sold contrary to law. The plaintiffs allege, that the sale in question was made without any notice to them, or the advice of a family meeting, and purchased in by William Benjamin, at the time tutor to one of the heirs, and under tutor of the others, and who was incapable of purchasing. They allege various other irregularities and nullities in said sale.
    The plaintiffs further allege, that the property in question is now in the possession, and owned by one Ambrose Gibson, who resides in Mississippi. They pray that a curator, ad hoc, be appointed to defend said absentee, and that they have judgment annulling the salej and decreeing to them the property, with the revenues and damages.
    The defendant, Gibson, by his attorney, averred that he purchased the property in contest from one J. C. Drew, whom he calls in warranty, and sets up-various demands against him.
    Drew appeared, and declined to answer to. the demands in warranty; but excepted to the plaintiffs’ petition, and denied that the tutor or under tutor' of Graham’s heirs had ever been authorized to institute this suit.
    At this stage of the proceedings one of the heirs married A. M. Tompkins, who authorized his wife to prosecute the suit in her own name.
    Drew further excepted, and denied that" the District Court had any jurisdiction of the matter set up in the petition :
    1. That the sale sought to be annulled, was ordered by a judgment of the Probate Court, which could only be annulled and avoided by a suit in that court.
    
      2. That the appointment of a special tutor, complained of in the petition, can only be inquired of in the Court of Probates ; wherefore, he prays that all these matters be stricken out of the petitions and that he be dispensed from answering it.
    
      The cause was tried on this issue ; and the district, judge presiding, decided that the plaintiffs had no authority to institute and carry on this suit; and that the District Court was without jurisdiction to try it. Judgment of non-suit was rendered against the plaintiffs, and they appealed.
    
      Stacy and Bullard, for the plaintiffs,
    insisted that the probate sale was illegally made, and the District Court was competent to-inquire into the illegality of the sale, and to set it aside. See 11 Louisiana Reports, 384.
    2. The second exception taken to the jurisdiction of the District Court, incorrectly sets out the allegations in the petition. It is not therein stated that the probate sale was made in virtue of an order of court; on the contrary, it is said that the sale was made without any legal order of court. No order of court is sought to be annulled, or set aside: But if it were so, and it were necessary to set aside the proceedings of the Probate Court, the District Court has jurisdiction to examine them, and if necessary to set them aside. Code of Practice, article 983. 2 Louisiana Reports, 23. 3 ibid., 242.
    
      Dunlap and M‘Guire, for the defendant,
    Drew, called in warranty, moved to dismiss the appeal for want of legal service of citation on this appellee. The service was made by a constable, purporting to be authorized to do so by the sheriff, and there is no proof that this man is a constable. His signature is not to be taken as proof.
    
      r 2. On the merits, they contend that, in the first place, the tutor and under tutor were without power or authority to sue, unless specially authorized.
    3. That this is a suit to annul the proceedings of the Probate Court, and is in the nature of an action of nullity, and the District Court is without jurisdiction.
    
      Selby, for defendant.
   Strawbridge, J.,

delivered the opinion of the court.

The signature of a constable to a return of ser-made^by^hhn’ wiu be tabe,n as true, without proof _ _ being made of it.

A motion has been made to dismiss the appeal on the ground of insufficient service of the citation.

The return is made by a person signing himself “ A. B., constable.” The errors alleged are:

1st. That a constable is not authorized to serve citations from the District Court.

2d. That there is no proof of his authority.

Article 765 of the Code of Practice, provides, that sheriffs may notify and execute the different orders, citations, &c. by means of constables“ they being responsible, however, for the manner in which the constables may perform this duty.”

On the second point, it has been held that our courts will recognize the signatures of officers appointed by the governor, &c. Constables are appointed by the police jury of each parish, and the parish judge administers to them an oath, and files their bond, with security, and delivers, them a certificate of their appointment.

Had the return been made by a deputy sheriff, it would, . , itt it appears to us, have been sufficient; and we would take his signature for true. We cannot perceive how this case differs in principle, when confined to acts of a constable, T . T . , T . „ , . . exercised within the limits of the parish.

We, therefore, overrule the motion, and sustain the appeal.

We now proceed to examine the case on the merits.

This suit is brought by the tutor and under tutor of some minors. The petition states that the parent of the minors, Graham, left a large arñount of real and personal property. “That on the 20th December, 1834, a public sale was made by the Court of Probates for the parish of Carroll, where they reside, of certain lands belonging to his succession,” which they specify. “ That said sale was illegal, null and void. That for more than a year preceding it, the plaintiff had been tutor to said minors, but had no notice of said sale; and that the purchaser at said sale could not legally buy.” They allege various other illegalities, and conclude wfith a prayer that they be decreed to recover the said property; be adjudged owners of the same, and put in possession thereof. That the probate sale, before set forth, on the 20th December, 1834, and all the proceedings had in relation to it, be avoided, cancelled, annulled and set aside.

The nullity of a probate sale cannot be sought in a direct action in the District Court. The order of sale by the Probate Court is held to be a judgment •which protects purchasers under it.

There was a plea to the jurisdiction of the District Court as to these matters, which was sustained by the judge, and from that decision this appeal has been taken. We do not doubt of the right of the District Court to examine into matters of probate jurisdiction, when they are brought before it collaterally, and vice versa. Nor do we doubt that the Court of Probates is without power to entertain a suit in revendication.

But we do not deem the nullity of the probate sale to have been brought before the District Court in this suit collaterally ; it is the head and front of the suit itself; and the court is called upon to avoid, cancel and annul the acts of the Probate Court, which is, to our view, a direct action of nullity.

The order of sale, it has been held, is a judgment, and that the purchasers under it are protected. 13 Louisiana Reports, 436.

We have just expressed the opinion in the case of Brosnaham et al. vs. Turner, that a party to a judgment cannot question it collaterally. See the authorities there cited. Though the present tutor denies any knowledge of this sale, we perceive, by the proceedings, that there has been a former tutor. The sale may have been made by an executor to pay debts, and so the tutors have neither been cited, nor had any knowledge. For these reasons, it appears to us the judge of the District Court properly sustained this exception, and we affirm his judgment, with costs. 
      
       The judgment in the case of Brosnaham et al. vs. Turner, has been suspended, and a rehearing granted.
     
      
      This case was decided at the January term, 1839, but suspended by an application for a re-hearing.
     