
    Kilcrease’s heirs vs. Blythe.
    1. The rule in reference to the jurisdiction of the chancery court is, that it being a superior court, nothing shall be intended to be out of its jurisdiction, but that which specifically appears to be so; and the validity of its decrees against absconding and non-resident defendants, must be governed by this rule.
    2. Where on the return of process not found, and affidavit of non-residence made with prayer for the action of the court to compel the appearance of defendants and the record only shows that the court proceeded to take the bill for confessed, and determined the matter involved without setting forth that this was done after due publication, it seems that such decree, though irregular and reversible on appeal is not void: a fortiori, would a decree not be void for a failure in the order for publication to s'tate a time and place for appearance of defendants.
    J. Brown furnished D. Kilcrease with land warrants, and Kilcrease located them on thirteen different tracts, containing in all nine hundred’and fifty-five acres, and obtained grants in his own name. Said lands were in the county of Lawrence. On the 6th March, 1823, Kilcrease gave Brown a penal bond binding him to convey one half of said land to him. One of the tracts specified in said bond was a tract for 278 acres. Kilcrease died intestate about 1824, leaving three children and heirs at law, to wit, Harriet, Frances and Kleber, minors. In February, 1829, Brown filed his bill in the chancery court at Columbia, against said heirs. It does not appear that any bond was given touching restitution of effects. ' <•
    This bill charges the above facts, and alleges also, that Kilcrease had sold part of the said lands in his life time, and received the money therefor; and that complainant had sold part and received the money therefor, but that complainant had not received his half according to the contract set forth in the penal bond. The bill prays that the sales made by Kilcrease be confirmed, and those made by complainant be confirmed, and that so much of the balance of the land be decreed to him as would give him his equitable share according to the agreement. Process was issued to the sheriff of Maury county, who returned that the defendants were not residents of the county, but of the State of Mississippi; and the same returns were made on alias writs. On the 9th September, 1829, Brown filed his affidavit, which stated that the defendants resided in the State of Alabama or Mississippi; that Townsend was their guardian, as. he was informed. The affidavit prays that “such order be made on the records as the court' may think right, to compel the appearance of the defendants.” At the December Rules, 1829, the following entry was made by the clerk and master:
    “Order that publication be made six successive weeks in the Nashville Banner and Nashville Whig, a newspaper in the town of Nashville, and State of Tennessee, for Kleber Kilcrease, Frances Kilcrease and Harriet Kilcrease, heirs of Davis Kilcrease, of whom Thomas Townsend is supposed to be guardian.” There was also the following entry: “November Rules, 1829. Ruled that complainant be permitted to insert the name of Thomas Townsend as alleged guardian of the minor heirs of Davis Kilcrease, deceased.”
    Again. March 2d, 1830. “John Brown vs, the heirs of Kilcrease, T. Townsend, guardian—
    
      •‘On motion, and it appearing to the satisfaction of the court that publication has been made for the defendant according to the order heretofore made in this court, it is therefore ordered by the court that complainant’s bill be taken pro confesso, and set for hearing exparte against the defendants at the next term of the court.”
    A record from the county of Monroe, State of Mississippi, was filed, exhibiting the appointment of Townsend as guardian of the heirs.
    At the September term, 1830, the cause came on for trial, “on bill taken for confessed against said defendants, exhibits and proof,” and an interlocutory decree made, and a final decree made in conformity with the prayer of the bill, and the title to said two hundred and seventy-eight acres of land in Lawrence county, vested in complainants. Lawrence county was part of the chancery district of the court held at Columbia.
    Brown sold and conveyed this land to Blythe, and the heirs of Kilerease in 1842, instituted an action of ejectment in the circuit court of Lawrence county, against Blythe, for the recovery of the possession of the land.
    The case was tried by Judge Totten and a jury, and it was contended before him that the decree of the chancery court divesting the heirs of title to the land and vesting it in Brown, was void, but his honor was of a different- opinion, and charged the jury that the proceedings in chancery might be regarded as irregular and reversible on appeal, but the decree was not void. -
    A verdict and judgment were rendered for the defendant, and the plaintiffs appealed.
    
      Wright, for plaintiffs.
    This casé turns entirely upon the legal effect of the decree in the chancery court at Columbia. If that decree be void, then no title' was divested out of the heirs and they are now entitled to recover.
    If the decree, is not void, even though erroneous, they cannot.
    
      Conceding for .the present that the acts of 1825, ch. 22, and 1827, ch. 42, Nich. and Car. Rev. p. 221 and 222, gave the chancery court at Columbia jurisdiction over the subject matter of the suit, it is still contended that, the decree is void because the court acquired no jurisdiction over the person of these heirs, and for other reasons.
    The English court of chancery would in no case whatever, render a decree against a defendant' without personal service of process. They esteemed it' against the plainest principles of natural justice and right, to condemn a man unheard. The fixed maxim was, equitas agit in personam et non in rem. Hence, if the specific execution of a contract were sought, and the defendant’s residence was abroad, the complainant was without rémedy, though the subject of the engagement were lands in- England, unless he would sue in the forum of the defendant’s residence. Grace and.Anderson vs. Hunt, Cooke’s Rep. 341; 9th Yer. Rep. 246. And under the acts of 1787 and 1801, though strongly violative of this great common law principle, Brown could not have filed this bill in Columbia, but would have been required to serve process personally upon the heirs or some of them. Jackson vs. Tiernan, 10th Yer. Rep. 172. And if we take it, the acts of 1825 and 1827 authorized this bill, yet they must be construed by the letter of thé law; 9 Yer. Rep. 246 and 247; and in pari materia with the acts of 1787 and 1801. Both the acts of 1825 and 1827 are very marked in requiring personal service and notice, and expressly adopt former statutes upon the subject. Moren vs. Killibrew, 2 Yerger’s Rep. 376; Earthman vs. Jones, 2 Yerger’s Rep. 489, Judge Whyte’s opinion. These authorities will show that in every case where constructive service has been substituted, nothing but a literal compliance with what the legislature has prescribed will bring the party into court or confer jurisdiction.
    The objections then to this decree are:
    1. Conceding the power of the master to make an order of publication, yet he is only in place of the court and must do all the court is required to do. Now the order does not fix or limit any day or time for the defendants to appear, nor for wbat purpose; yet this is very important to the rights of the defendants. For they could not know they were sued at all unless the publication so informed them, nor the place of suit or defence, nor the time limited for that defence. The act says, “the court out of which such process issued may make an order directing and appointing such defendant or defendants to appear at a certain day therein named.” And again, “if the defendant or defendants do not appear within the time limited by such order;” Nich. and Car. 213, and 214. This order is void and unmeaning. Even a notice to take a deposition thus made out would be totally void. The publication itself cannot be supposed to have been more specific than the order, for the act requires a copy of the order to be published, and the court in the record say that publication had been made according to the order. Besides, it cannot be supposed that in making the publication, the law or order was transcended. And if the publication itself were shown to have- been full, it would not avail unless the order were so too, for the law itself requiring the order to contain these things and a copy to be published, no substitute will do in the case of constructive notice.
    What would publication avail without, or contrary to the order? In Taylor vs. Bate, 4th Monro, 268, it was holden that to advertise against one not made a party by the bill, and afterwards insert the name as an amendment will not do. Even a deed, though registered, if not upon the proper warrant or authority, is not constructive notice; McNeil vs. Magee, 5 Mason, 244; neither constructive notice or service is favored in the law. In a word, whatever the law requires to be done, must be done. How can these heirs be in default unless time and place for appearance are appointed?
    2. The record does not show, nor does it otherwise appear, “that a copy of such order was within sixty days after it was made,” inserted in the Gazette. This is material, as it enlarges the time within which the defendants are to have, or supposed to have information of the suit.
    3. It does not appear that the “National Banner and Nashville Whig” was a Gazette regularly published. There might be a great difference between a publication in a mere newspaper and a paper regularly published. These words in the statute are full of meaning.
    4. The court appointed no guardian to defend these infants. Weir was their regular guardian, lived in Lawrence county Tennessee, and no process was served upon him, nor did he otherwise have any notice of the suit. Townsend could not be their guardian, for they had one before him; and his appointment was only in Mississippi, which gave him no power in Tennessee. In Braxton vs. Lee’s heirs, 4 H. and M. Rep. 383, Judge Tucker pronounced a decree thus obtained, not only erroneous, but absolutely void. And in Jones vs. Mason, Taylor’s N. C. Rep. 123, the court refused to proceed against non-resident infants to foreclose a mortgage without a guardian, and pronounced the complainant’s case without remedy, as the court had no jurisdiction over the persons of the infants, and could not therefore appoint a guardian. This was a case under the act of 1787. And in Mills vs. Dennis, 3 Johnson’s Ch. Rep. 368, Chancellor Kent holds that a decree even upon the answer of the guardian ad litem, without proof of the complainant’s case, would not bind the infant, and that no laches can be imputed to an infant, and no valid decree can be awarded against him merely by default. Digges vs. Beale, 1 Har. & McHen. Rep. 67. Here all that was done or said, in relation to the guardian, was before the alleged order of publication was made, whereas the infants must be brought before the court, either by service or publication, before the court has jurisdiction to appoint the guardian. — Collard’s heirs vs. Groom, 2 J. J. Marsh. 487; Darby’s heirs vs. Richardson, 3 J. J. Marsh. 544.
    5. The statute says, “on proof made of such publication of such order as aforesaid, the court being satisfied of the truth thereof, may order the plaintiff’s bill to be taken pro confesso.” Now, has the court power legally to ■ take the bill for confessed, without the publication? And will this court, in a case of such extraordinary departure from the principle of the common law and the English chancery practice, presume or intend any thing to have existed which does not appear in the record? Mims vs. Mims, 3 J. J. Marsh. 105; Green’s heirs vs. Breckenridge’s heirs, 4th Monroe, 544.
    6. The statute (Nich. and Car. Rev.' 214,) expressly provides, that before any decree shall be made against a nonresident, the plaintiff shall first give sufficient security- in such sum as the court shall think proper, to abide such order touching the restitution of the estate or effects, as the court shall think proper to make, concerning the same, &c. This very essential and material provision in the law for the security of non-resident defendants' was not complied with. Now it is submitted, if the want of this does not render the decree utterly void? • Did the court possess the power or jurisdiction to divest the estate' without such bond? Must not all - the pre-requisites of the statute be complied with, or if not, is not the decree void? 2 Yer. Rep. 484. Are not proceedings under these laws against non-resident defendants analagous to proceedings under the attachment laws of the State, and must they not receive the same construction?
    But, 7th. It is contended that the subject matter of- the suit was not within the meaning or terms of the acts of . 1825’ and 1827, and that therefore the court had no jurisdiction. These laws cover the case of bills filed for. the specific execution of contracts, or bills in equity which seek directly to divest the title of any specified piece' or parcel of land. But the object and prayer of the bill here, is neither the one nor the other. The contract between Brown and Kilcrease was that the' latter should convey, upon demand, to the former, the one equal half of thirteen different tracts of. land, the legal title of which was in Kilcrease. Now the object of the bill is not to execute specifically this contract, but it goes far. beyond it into other collateral matters. It does not pray or seek a conveyance of the one equal half of thirteen tracts. But the allegations are, that Brown himself had sold the whole of some of these tracts, and that Kilcrease had in like manner sold some of them, for which each of them had received the money; but that Kilcrease had sold and received much more than his just share or proportion. The bill is not against the purchasers to divest title or execute the agreement in specie; but on the contrary it goes for confirming all these sales, and thus converts the proceeds received into money demands, and in effect seeks an adjustment and settlement of these various sales, and prays for an allowance of land in lieu of the money thus due him; and this very tract of 278 acres is decreed.to him upon this principle. Now this is not the specific execution of the .contract, but the very reverse. It is the recission of the contract as to the lands sold, and casting them back upon Kil-crease’s estate or the purchasers, and .taking money in lieu of them, and then a decree for iands for. that money, which vyas properly, a debt upon the personal estate of' Mr. Kilcrease. I contend that these laws apply only to the simple isolated cases of bills, the sole and only object of which is the specific execution of contracts or divestiture of title; and that they do not extend to the adjustment or settlement of the rights of joint tenants, tenants in common, or partners, or to other collateral matters; Carter vs. Carter and others, 5th Munf. 108 and 117; Pollard vs. Coleman,'4 Call, 245.
    This is more properly a bill for partition,-and for. the settlement of the rights of tenants in common for joint lands sold separately by each of the joint owners. The frame and prayer of the bill, as well as the decree are so., . And the acts of 1787, ch. 17, 1789, ch. 24,1799, ch. 11, 1823, ch. .37, (Nich. and Car. Rev. p, 514, 515, and 516,) .and 1794,-ch. 5, (Nich. and Car. Rev. p. 77 and 78,) have a great deal more to do with the case than those of 1825 and 1827; and under these laws the partition is utterly void. There is not the least pretext for .saying that the act of 1794, has been followed. That is a proceeding to enable the personal representative to make title. The acts of 1787,1799 and 1823, require the applicant for partition, previous to the presentation of the petition to advertise and publish' his intention three different times at least, in some of the newspapers of the State, or to give ten days-notice, personally to-.sircon-cerned, setting forth the time intended for presenting it, and the court to which it is to be presented; ánd in- the case of publication no petition shall be presented until six months after the publication. And further, these laws require the court to appoint five commissioners to make the division; a majority or three of whom may act. But here the court appointed only three, two of whom only acted. And it would seem that G. W. McLauren, who was never selected or appointed, also acted as one of the commissioners.
    In the case of Anders et al. vs. Anders, 2 Dev. Law Rep. 529, the supreme court of N. Carolina held a partition for these and other reasons less weighty, to be void.
    IV. S. .Brown, for defendant.
    This cause depends mainly upon the force and effect of the decree of the chancery court at Columbia, in favor of John Brown vs. the Lessors of the plaintiffs.
    Did this decree divest the title of the lands in controversy out of the heirs of Davis Kilcrease?
    The charge of his honor below, was, .“that the proceedings of the chancery court were imperfect, but not' void, and if the land in controversy was embraced in the decree of the chancery court, the title thereto was divested, and the jury would find for the defendants.” In this charge I insist there is no error.
    1st. The chancery court at Columbia had jurisdiction, because the lands in controversy then lay within the District of that court, and the subject matter was peculiarly of equity jurisdiction, being a partnership account between Brown and Kilcrease, which could not be adjudicated upon in a court of law. See Pamp. acts 1823 and 1824, page 21 and '22.
    2d. In the proceedings of the chancery court, we find two returns by the sheriff of Maury county, “not found;” and them upon affidavit, that the defendants were non-residents, an order for publication was made, and which is afterwards shown to have been executed; and upon this, there is a regular pro confesso order, and final hearing thereon. Why should the chancery court have appointed a guardian, when the bill itself alleges, that the defendants had a guardian, and the affidavit afterwards shows, that guardian and wards both lived in Mississippi? Publication, therefore, was all that was nece ssary to mature the cause for an exparte hearing. See statutes of Tennessee, title Chancery Court and Practice. N. anclC. pages 213 and 221.
    If the chancery court had jurisdiction, all the objections to the proceedings, by the plaintiff, are removed by the presumption which legally exists in favor of their correctness. See Cooke’s Rep. 193; 1st Tenn. R. 345; 1st Dev. andBatt. Law. 162; 4th Dev. 295; where it is settled, that the decision of a court having competent jurisdiction of the matter in dispute, must be taken as correct so long as it remains unreversed.”
    If the chancery court had jurisdiction of the subject matter, there is nothing in the form of its proceedings to render the decree void; and the plaintiffs, to avoid it, must become parties to the suit and reverse the decree.
    This court will perceive that Brown had a meritorious cause of action in his suit in the chancery court, and his rights will not lightly be overborne for mere want of form in his proceedings.
   Reese, J.

delivered the opinion of the court.

This is an action of ejectment to recover two hundred and seventy-eight acres of land, lying in Lawrence county. The lessors of the plaintiff are the heirs at law of Davis Kicrease, who was grantee of the land sought to be recovered. The defendant was in possession of the land at the time suit was brought; he read on the trial a deed of conveyance to himself from John Brown, and a deci’ee of the chancery court at Columbia, in favor of John Brown against the lessors of the plaintiff, divesting the said lessors, the heirs of Davis Kilcrease, of all title to said tract of 278 acres, and vesting the same in the said John Brown. It was contended on the trial, that this decree is altogether void. It was held by the court, in the .charge to the jury, that, although the chancery proceedings were imperfect, and the decree irregular and erroneous, yet it was not void; and the jury found a verdict for the defendant, upon which judgment was given; to reverse which, this appeal in error is prosecuted: and here, the only question is, as to whether the decree in question is void. The case made out in Brown’s bill, in substance, is, that being the owner of a large amount of land warrants, he placed them in the hands of Davis Kilcrease, who entered them and obtained grants thereon in his own name, and among the rest for the 278 acre tract; that in 1823, upon a settlement between them, on account of these tranSactionsj Davis Kilcrease'gave to him his bond, which is exhibited with the bill,. and therein acknowledged that Brown was equally interested with himself in $55! a.cres of land specified, including the 278 acre tract, and covenanting that 'he would convey the one half of said land when called on. The land lies within the district embraced by' the chancery court at Columbia. . The bill stated that the said Davis died intestate in 1824; that the lessors of the plaintiff were his heirs at law, and that one Thomas Townsend had been appointed their guardian; and prays: to make them parties and to have partition of the land, and to have their, title divested' as to his share; and prays process. Subpoenas, against each-of the heirs at. law, were twice issued to Maury county, and were returned by the sheriff not found, and that the defendants were not inhabitants of the State. Upon the return of the alias subpoenas, at the September term of the chancery court, 1829, the complainant, • in open court, filed an affidavit in the case,-stating, in substance, that, after the death of Davis Kilcrease, the widow married one Thomas Townsend, who was made guardian of the heirs at law, in the county of Lawrence, and then they all moved off to the State of Mississippi, where they then resided, and where, he believed, Townsend was re-appointed guardian. (Before the hearing, a record of this appointment was filed.) Now, upon the face of this bill, and the state of facts shown in the affidavit, it is most obvious that the court of phancery had jurisdiction of the'subject matter, by the express provisions of the acts of 1825, ch. 22, and 1827, ch. 42. It was a bill to divest out of the defendants title to land lying within the jurisdiction of the court. The complainant claimed the equitable title, first, because he had been owner of the warrants, and, secondly,.because the ancestor of defendants had covenanted.to convey; and the object of the bill was to divest out of the defendants, upon whom the mere legal title had descended, that legal title, and to vest the same in the complainant. Of such a subject matter, the said acts, in terms, expressly gives to. the chancery court jurisdiction, and directs that such- rules and meaiis of giving notice to non-resident defendants, shall and may be had and taken, as have heretofore been in force and are used against absconding and non-. resident defendants. The court thus having jurisdiction of the subject matter, by express statutory grant, without actual notice or personal process, suppose, — after the affidavit we have quoted, made September 1829, which concludes with a prayer to the court, “that such order may be made hereupon, and upon the records, as the court. may think right, to compel the appearance of .the defendanl s,” — suppose, we say, that the next and only further' thing, which the record of the suit presented, was. the entry made the next year, December 1830,. which commences as follows: “John Brown vs. Kleber Kilcrease, Frances Kilcrease and Harriet Kil-crease, heirs of Davis Kilcrease, deceased: This day, the 7th December, 1830, this cause came on to be heard before the honorable Nathan Green, chancellor, on bill taken pro confes-so against said defendants, exhibits and proof in the-cause, it appeared,” &c. Sueh decree, appealed from, might, perhaps, be held to be erroneous and irregular, because not setting forth a pro confesso taken after publication made. But would it, while remaining unreversed, be held to be void in a collateral proceeding? I think it would not, the record showing jurisdiction over the subject matter, and this-upon the general ground so distinctly stated in the case of Peacock vs. Bell and Kindal, 1 Saunders’ R. 74, where it is said, “the rule for jurisdiction is, that nothing shall be intended to be out of the jurisdiction of a superior court, but that which specially- appears to be so; and, on the contrary, nothing shall be intended to bé within the jurisdiction of an inferior court, but that which is so expressly alleged” — by “inferior -court,’’ understanding a court of peculiar, special and limited jurisdiction. But the record in the case before us,-is not as supposed; for, at the March term, 1830, is this entry in the case: “John Brown vs. the heirs of Davis Kilcrease, deceased, of whom Thomas Townsend is the supposed guardian: on motion and it appearing to the satisfaction of the court that publication has been made for the defendants, (meaning for the appearance of the defendants,) according to the order heretofore made in this court, it is ordered that complainant’s bill be taken pro confesso, and set for hearing ex parte against the defendants at the next term of the court.” At the previous term, being the term at which Brown filed his affidavit for publication, no order, indeed, is found as above recited; but “at the December rules, 1829, the clerk makes an order that publication be made six successive weeks in the National Banner and Nashville Whig, a newspaper in the town of Nashville, for Kleber Kilcrease, Frances Kilcrease and Harriett Kilcrease, heirs of Davis Kilcrease, deceased, of whom Thomas Townsend is supposed to be guardian.” This order is supposed, in argument, to be defective and void, and to render the subsequent decree void, because it does not contain the words, “to appear at the next term of court,” specifying it; and this because the act of 1787, ch. 22, sec. 1, provides in the cases set forth, that “the court may make an order directing and appointing the defendant or defendants to appear at a certain day therein named,” and to make publication, &c.

The acts of 1825 and 1827 provide only that such rules and means of nolice shall be adopted as were in force and use. The organization and practice of chancery courts had changed very much, and the courts had been empowered to make, and had made rules on this general subject, and the clerk and master had been empowered to do many things at rules which were before done in court, and among others, orders of publication and pro confesso, &c. The important thing is not the order or memorandum of the clerk, at the rules, for a publication, but is the publication itself, in such terms as will give definite notice. The fact of publication, the act of 1801 provides, may be proved to the court by the production of the newspaper. The record in this case states that it appeared to the satisfaction of the court, that it had been made; that is sufficient. The court is not bound to show the proofs upon the general principle before stated. I entertain much doubt, therefore, whether this decree would have been reversed for error, upon appeal; certainly it cannot be held void in a collateral proceeding. Upon the subject of the distinctions between void and voidable, see the case 4 Dana., Bustard vs. Gates and wife, 429; 5 Humph. Stephenson vs. McLean, 332.

We think there is still less in the other grounds of objection to the decree as rendering it void.

We must, therefore, affirm the judgment of the circuit court.  