
    Lynch and another v. Baxter and Wife, Adm'x.
    An administrator’s sale is a judicial salo and operates in rem. In such cases it isa general rulo that caveat, omptor applies, and the purchaser takes his purchase without warranty, express or implied; and if the administrator gives the purchaser a bond for a warranty title, it is not m his capacity as administrator. (Note 93.)
    
      Quere whether the administrator would bo personally bound in such a case.
    A vendee cannot resist the payment of the purchase-money, on the ground of defect of title in the vendor, while he retains the title bond and continues in possession of the land. 'Where the vendee gives his note for the payment of the purchase-money, and goes into possession, there being no further contractiu writing, he cannot avoid the payment, notwithstanding the statute of frauds, if the vendor be able and willing to make title.
    Where heirs are all of ago, they can, by consent, partition tho inheritance among themselves without the aid of the Probate Court; and if one be under age at the time', but acquiesce alter coming of age, he will be bound.
    A verbal partition of land, perfected by delivery of possession, was as valid under the Mexican, law as if evidenced by writing.
    A bond for title and possession of the land, title or no title, are a sufficient consideration for a promise to pay money, where the defendant does not oll’er to surrender the bond and possession of the land.
    The proceedings of the Probate Court cannot be collaterally impeached for an omission to disclose on its records an observance of everything enjoined by statute, upon the ground that it is a court of limited jurisdiction. (Note 94.)
    It is not necessary that the record should show a necessity for a sale of real estate, although a,sale be ordered and made without any necessity existing at the time the order was ■, made for such sale; nevertheless, that order is conclusive until it bo set aside by proceedings having that object directly in view; and the purchaser, having purchased without fraud or collusion with the administrator, will be protected by the sale, if the decree under which it was made he the decree of a court of competent jurisdiction.
    The Probate Court, in tho settlement of succession, proceeds in rem; and in a collateral proceeding th.e only objocti >» which can be made to its judgments or orders is tho objection for tho want of jurisdiction.
    
      Quere whether or not it is necessary for the record of the Probate Court, on appeal, to disclose an observance of everything enjoined by statute.
    A party who produces a transcript of part only of the proceedings of the Probate Court in the settlement of a succession cannot object to those proceedings because the record does not disclose that certain things were not done which ought to have been done; /or if he had produced a’copy of all the proceedings, it would probably have appeared that those tilings were done.
    The twenty-ninth section of the net of 1849, regulating the duties of Probate Courts and the settlement of successions, did not require that the perishable and -personal property other than slaves should he sold before obtaining an order for the sale of slaves or real estate; but it was the dntv of the administrator, as soon as he ascertained, by sale or otherwise, that the personal prop.u iy was not sufficient to pay the debts and the expenses of tho administration, to apply for an order for the sale of slaves or real estate; and if the personal pioperty had not been sold, it was competent for the court to include in tho same-order directions for the sale of the personal property and as mueh of the real estate or slaves as would bp necessary to pay the debts and expenses of administration.
    Appeal from Washington county. The appellees sued the appellants on a note of hand, dated October 5, 1841, due twelve months after its date, payable to Walker C. Cooper, administrator of James Hensley, deceased. The petition alleged that the said note, was given for tho purchase-money of a tract of land sold by the said Cooper, as administrator of the said Hensley, deceased, at an administration sale, as the property of the succession of the said Hensley, deceased, on the said nth day of October, 1S41, and that the said Lynch then became the purchaser thereof. The death of Cooper, the first adminis- ’ trator, was suggested, and the grant of the administration de bonis non to Mrs. Baxter, and her intermarriage" with Baxter. They prayed process and judgment, &o. Tiio defendants first filed an answer denying the allegations in, the petition. They subsequently amended and pleaded‘specially, admitting the note sued on was given for the land, «fee., and making a bond for title given by Cooper, former administrator, a part of their plea, and alleging that'title, though often demanded of I lie said Cooper and of the said plaintiffs, had not beeñ made; that title cannot he made by them, because the (itle is in the heirs of the said .James Ilensley, deceased, and not in the administratrix; and that the consideration for which tho note sued on was given inis failed. And in a second amendment of their answer they said the land was not the property of said James Ilenslev, deceased, but was the undivided estate of J. JT. Hensley, and belonged to his heirs, consisting of children, &c., and the children of the, said James Hensley, deceased, the said Cooper’s intestate; and therefore the said Cooper could not sell the said land.
    Johnson Hensley, a witness for the defendants, swore that there was no such person as J. H. Hensley; (hat (.he land in question was part of the, headlight of Harmon Ilensley, father of plaintiffs’intestate aud of witness; and that the said Hannon Hensley died sonie time'early in the year 1834, leaving- several heirs, all of age, except, one. Margaret, ahont fifteen years of age; that in November of the same year (lie children of said Harmon Hensley agreed to divide the said land, by metes and bounds, in equal parts. Witness could not say whether the partition was in writing-. The best lot was given to the said minor Margaret. She married in 1833,; and .she and her husband sold it to plaint ill's’ intestate. The said Margaret i|ud her husband aud all the heirs, since 1834, have acquiesced in the partition and have used and enjoyed the parts allotted to them. The defendants then offered in evidence a copy of the petition of Cooper, administrator of Hensley, praying an order of sale, and the-' decree of the probate judge rendered on the petition. The petition represents tin- perishable properly as worth about, $300, aud that the debts already presented and allowed amount to $1,200, besides the expenses of the administration, and prays an order of sale of the perishable property, and as much of the real estate as'shall be of value sufficient to pay the debts and expenses of administration. Tlie petition is sworn to by the administration. The decree of the probate judge is made in conformity with the prayer of the administrator. There was a verdict and a new trial; the case was afterwards submitted to the judge, the parties waiving- a jury trial; judgment for the plaintiffs; from which the. defendants appealed.
    (t’lie errors relied on were—
    1st. That the land did not belong to the estate of the administratrix’s intestate, and that the, plaintiffs, the administratrix, could not make title.
    2d. That the. decree of the probate judge ordering the sale was a nullity and absolutely void, and that consequently Cooper, the administrator, had no right to sell the land under such void decree.
    3d. That tiie covenant in the bond and the note sued on being dependent on each other, the action could not lie.
    
      Webb, for appellant.
    I. Upon the first, point the testimony shows that the land was a pait of the . headlight leag-no of Harmon Hensley, and that after his death his heirs, of whom'James Hensley was one, verbally agreed to a partition between themselves, one of them being- a minor; that they made the partition according- to the agreement, and each one of the heirs claimed in.severalty the parts allotted to him; aud that the part wiiicii fell to James Hensley was (ho land sold h,v his administrator, Cooper, to Lynch, for which the note sued on was given. This partition, it is insisted, was illegal, and the whole of the heirs remained as well affer as before if, joint temints in each aud every parcel of the league of land; and consequently, if the administrator has conveyed the land to Lynch, the other heirs might sue for aud recover from him their portion of ii. (J- vol. Laws, p. 122. sec's. 38, 39, 49; 7 Mass. It., 488; 12 Mass. It., 520.)
    II. The judgment of (he Court of Probate of Austin county, under which the land was sohlj was in evidence, before, (he court in. Washington in this case, aud it shows upon its face that the. Probate Court had no jurisdiction over the subject-matter at the lime the order to sell the laud, was made. The judg-ni'Hit, therefore, was coram non judien. A Probate' Court lias no authority to order a sale of real (-state except it he for the payment of debts, in default of personal estate, or for distribution, and not even for (bo payment of debts, until it shall be shown that the personal estate is exhausted. (4 Laws, p. 119, sec. 29.) The petition to the Probate Court by the administrator for an order to sell the land of Ilensley shows that the personal estate had not been ex. hausted or applied to the payment of the debts. The court therefore had uo~ui'isihctron to entertain it and the judgment rendered lipoli. it was cc-ram non judice, and void. (1 Ala. B., 25; 3 Ala. B., 153; 5 Stew. &Port.B., 441, 449; 8 Port. Ii., 99, 10~J, 101, 301, 372; 2 Stew. B., 331; 5 U. S. Cond. B., 008; 1 11111, B., 130; 5 U. S. Conci. B., 28; 8 Port. B., 400; 3 B~ub. B., 341; .3 Mass. B., 253, 200; 7.Mass. II., 70; 2 Mass. B., 120, 124; 4 Mass. B., 117, 122; 10 Mass. B., 171, 178; 8 Pet. B., 375, 377; 3 Stew. & Port. B., 355.) The Court of Probate being a court of limited ~nrisdie1ionin respect to the sale of real estate, nothing is to be l)resumed in favor of it; everything essential to its ~nrisdietion must affirmatively appear. The necessity of the sale of the real estate could only be known after the IersolIal estate was exhausted; and without that llecessi(v was showii, tile court had no jurisdiction to eider a sale of the land. (1 1-lill B., 133; 3 Pet. Conci. 11., 7, 8; 2 Pirt. Dig., 10, sec. 9; 1 Pet. B., 340; 5 Pet. Coat]. B.. 972; 5 Cr. B., 173; 11 Ala. B., 110; 2 U. S. An. Dig.. p. 83, see. 14; 2 U. S. Dig., 249, arts. 40, 47, 48, 54, 55.)
    
      Hunger, for appellees.
    I. The testimony of Johnson Hensley was objected to, and ought not to have been admitted. The transcript of part of the proceedings of the .Probate Court was also objected to, and ought, to have been excluded. (11 Hart. It., 608.)
    II. Admitting the evidence, (he judgment is correct. A parol sale of land was good under the Mexican law. (Scott & Solomuu v. Maynard and AVife,, Dallam, 651, and authorities there cited.) A parol partition would be equally good. If defective, iu this ease it has been perfected by acquiescence and the statute of limitations. (Laws, 1 vol., p. 156, sec. 30; Id., 5 voh, p. 1(17, secs. 15 et seif.; Tabor v. Johnson, 3 N. S., 074.) The possession of Lynch has not been disturbed; and he has no right to impeach his own title io defeat this action, at least without offering to "give up the bond and the. possession of the land. ('labor ». Johnson, 3 N. S.,' 674; La. Dig., p. 574, Nos. 14, 16; Id., p. 595, No. 53.) There is no warranty in Judicial or administration sales; the, decree protects the purchaser, (La. Dig., p. 642, Nos. 21, 22;) and the purchaser only gets the title of the intestate, be it good or bad. (3 U. S. Dig., p. 377, No. 474.)
    III. It is contended by tlie appellants that the order of court to sell the real estate was a nullity. But not so. The statute is merely directory, and does not require tlie. perishable property to be first sold before obtaining an order for the sale, of real estate. Besides, tlie purchaser looks to the judgment only, not to the facts which authorize it. (AVheaton v. Sexton, 4 AVheat. R., 506; 4 Or. It., 328; 1 Stark Bv., 217.) A judgment, in rem is conclusive. Matters of probate arc in rem. (1 Stark. Ev., 24Í ; 2 How., U. S. R., 238.) It is not ne.eos-cessnry for (be record to disclose' all the facts. (Grignon v. Asfor, 2 How. U. S. R., 341; Ex parla Tobias v. AVai kins, 3 Pet. R.. 202; Kemp, Lessee, v. Ken-edy, 5 Or. R., 173; Thompson ?>. Tolmio, 2 Pet. R., 16S, 169.)
    The amended pleas of the defendants are but pleas of failure of consideration. The bond for warranty, title, and the possession of the land were sufficient. consideration to support the promise in the note. (Bessj' v. Pintado, 3 La. R., 488.)
    
      Leivis, also for appellees.
    The Probate Court had jurisdiction of the subject-matter. In such cases its proceedings stand upon the. same fooling as the proceedings of the District Court. It is not, the manner but, the' matter upon which a court is called to act, that gives jurisdiction. (14 Johns. R., 289.) The conrt. obtains jurisdiction by tlie plaint, or here by the petition. (2 N. Y. Dig., 109S; 20 AVond. R., 245, aiid cases (.here cited.)
    The proceedings must show affirmatively jurisdiction. Thus, if a suit is ■brought before a justice of the. peace, it must be. shown that, the debt or damage claimed is not over $100; if in the'District Court, tlie petition must show that the debt, or damages is 8100 or upward.-,; and if 'h the Probate Court, that it i iu relation to the estate of a dc.-.-tTmt, uifi-.t, lunatic, or some other of Hie specific! cases in which that court >.:s autlioni. to act. The one under consideration shows that it is in relation lo t-lie estati of a decedent. It is no objection to the jurisdiction that the court deceived hr acted on improper aud insufficient evidence, or even without evidence. The law gave that court power to act, and directed its action in certain specified cases; and that court alone had the authority (in the first instance) to determine whether there was sufficient. evidence before it to warrant its action. And if the court was mistaken or acted without the proper authority, the course, and the only one, to correct the error, if any exists, is by appeal. We are authorized to believe that the Probate Court had proper evidence to authorize the proceeding. The law did not require that the testimony should be taken down and preserved. In the probate law of 1840 there are) precise aud very minute directions given for the government of the court, but not. a word as to the amount or kind of testimony. The 20th section only requires satisfactory proof; tins «1st section of the same law gives particular directions on this subject for a jiarticular class of cases; and why f his distinction, if it is necessary in .all eases?
   Lipscomb, J.

The first and second objections taken by the appellant to the judgment, of the court below may he considered together. The sale of the hind was a judicial sale, and operated -in i-eiii. In such cases it is a general rule that on-cat oiiptor applies, and t-lie purchaser takes his purchase without warranty express or implied; and if the. administrator, in.executing the. order of the court, gives the purchaser a bond for a warranty title, it is not in his character as administrator, and he cannot bind the estate of bis intestate by such a covenant. As a personal undertaking bctwe.cn him and the purchaser, how far if would be. valid is not now before us, and consequently wc pass it by. (9 Wheat. R., 616.) But if considered independent of. the circumstances of the sale in this case, and if it was a case of individual private contract, the defense set up could not be available, because, if. is repugnant to the, plainest principles of law and justice to allow this defense to be heard whilst the vendee holds on to tile, bond aud continues in the. possession of the land purchased. (11 Mart. R., 615.) And had the.ro been no contract-in writing, aiid had it been a private eontraet between the vendor and vendee, and the vendee had given his note for t lie payment of the land and gone, into possession, he could not avoid payment, notwithstanding (lie statute of frauds, if the plaintiff was able and willing to make title. (Rhodes, Adm’r, v. Storr, 7 Ala. R., 346.)

But the evidence offered by the defendant in the court below entirely failed in establishing a superior outstanding title to that’ of the plaintiff’s intestate. The evidence'of Johnson Hensley, a witness, and the. only one offered, [and lie was introduced by tlie defendants,] proves that the land was a part of the headlight league of his father, Harmon Hensley ; that II. Hensley was also the father'of the plaintiff’s intestate ; that the father died in 1834, leaving several children, all of whom wore of age excepting one. daughter about fifteen years of age; that shortly after the death of his' father, tiie children, by consent, divided his land into equal shares; that (hey set apart the best allotment to the sister, who was a minor; that she was married in 1835, and that she and her husband had sold her share, to the plaintiff’s intestate; that each of the heirs had entered upon and enjoyed their several shares, and had acquiesced in Hu' partition so made, in 1834. and mad' no complaint.. The witness did not know whether the partition was by an agreement in writing or not.

The appellants’counsel supposes this partition tuts illegal and void, and to show that it is so refers to the, act of Congress of the Republic of 1840. The requisitions of that act, six years after the a.micahie,-partition, could not disturb rights growing up under it. The, parties, with the exception of one, were of aii age to divide out the land that had descended to them, by consent, even if the act of 1840 or a law similar in its terms had been in force at the time the partition, was made, and tlie other’s acquiescence and confirmation after she was of age to act for herself would hind her.

There can he no doubt that at (.lie time the partition was made a verbal sale of land between individuals was binding, and tin; contract as valid as if evidenced by writing. It was so decided by this court under tlie Republic. (Scott and Solomons v. Maynard and Wife, Dallam’s Digest, 531, and tlie authorities there cited.) Bnt if the law at that time liad'required Unit tlie partition should be in writing, it could not be disturbed now. Tlie right to tlie respective shares, according to tlie partition, is now established beyond controversy by the statute of limitations.

Leaving tlie fact of the appellant Lynch being a purchaser at a judicial sale out of the question, and placing him in tlie more favorable position of a vendee under a private contract with “"Cooper, the bond he sets up in his plea and the possession of land would ali'ord ample and legal consideration for the note sued on to entitle the plaiutid's to recover. We do not intend to be understood, in commenting on the evidence of outstanding title, to be considered as giving it our judicial sanction. If, however, it is objectionable, it is not for the appellants to raise the objection, as tlie witness was introduced by them, though objected to by the plaintiffs.

We now come to tlie last objection, and the one most relied on in the very able and ingenious argument of the, appellants’ counsel: that the decree-of the probate'" judge ordering the sale is a nullity. That tlie judgment, order, or decree of a court of general jurisdiction, on any subject to wlíicli the jurisdiction lias once attached, however erroneous, defective, or irregular it may be, can never be questioned or avoided in a collateral way until it lias been reversed, set aside, or revoked in a proceeding having that "objection directly in view has been considered as well settled for the last century, and cannot be now disturbed. It has, however, been supposed by some that the proceedings of a court-of limited jurisdiction are not entitled to the same regard, and that the records of such courts must show a strict conformity to 'all tlie requisitions of law; and that unless they do show such conformity, their acts confer no rights and impose no obligations on any one, and may lie treated, whenever and wherever presented, as entire.nullities and void. Such is the position assumed by the appellants’ counsel; and he contends that the decree of the probate judge ordering the sale of the laud, for the purchase of which Hie note sued on in this case was given, is of that kind. The record of the probate court used in evidence oil the trial below was introduced by tlie appellants, and does not purport to be a complete record of all the proceedings in that court in relation to the administration in which the order of sale was made. The appellants can therefore claim no advantage arising'from tlie fact of its being only a part of the record.

The. decree of the Probate Court ordering the sale of the land belonging to the estate of Cooper’s intestate was made under the provisions of the 29th section of an act regulating the duties of Probate. Courts and the settlement of successions, passed by the Congress of Texas at the session of 1810, and is in the words following: “livery executor or administrator is bound, within three months after his appointment, to petition the Court of Probate, granting letters testamentary or administration for tlie sale of all the perishable property belonging to tlie succession, and all or sncli portion of the other personal property, except slaves, as may he shown to tlie court to be necessary for the payment of debts against said estate; and in case, or if oil further information, he finds that the proceeds of the sale of tlie personal property will not be sufficient, for the payment, of said debts, he shall then, within six months after his appointment, or as soon as lie. ascertains the said deficiency, petition the Probate Court for the, sale of (lie slaves and real estate of the decedent, or so much thereof as may bn necessary for the payment: of said debts; aiid tlie said court, on full and satisfactory proof of (lie existence, of the debts and the necessity of tlie sale, shall order tlie same on cash or credit, as mav bo most advantageous to salcl estate, or as the nature of the claims against said estate may require.” . ’•

The vei'-iH'd od'ered in evidence of the decree,“tirdering the sale, supposed hy the appellant : !<> he so defective as (o amointe-loaaiitllity, shows a petition oil oa:'i pivi'-e-ivd hy tlie adminislrater in the words foTTowing:

“To tlie lion.'Jolm II. Money, Chief Justice of the county of Austin, and judge of probate for the, said county:

“ E'iie ¡iciiii,m of Walter C. Cooper, administrator of James Hensley,.deceased, respectfully represents that there is about five hundred dollars’ worth of proper'\ h -loo-ring' to the succession, which lie. thinks is likely to be wasted unless tf - : -its > si.,, d,l be disposed of. Tour petitioner furlher represents that the -ih.-.eL presented against said succession amount to about twelve hundred i'o!',.-r •' ¡md the expenses of tiie administration make it necessary to sell som * oí ih» nal estate in addition to tlie perishable property "belonging to the s;.c cession, 'four petitioner would (¡ierc‘bit¡-pray your honor to issue your deer, to Ml the perishable property of the said .estate, and so much of tlie real estate ¡i: maybe necessary to satisfy tin- debts’ of tlie said succession and the expenses on the. same; and as in duty bound your petitioner will ever pray.

D. Y. Beams, Ail'y P. Q."

"Which was sworn to in open court hy Walter "0. Cooper, the administrator, and a nested by the clerk. Then follows :

“Walter O. Cooper’s petition for the side of the perishable property and real estele. In the Probate, Court, May Term, 3841, the within petition having Iv'-n rend and considered, it is therefore ordered, adjudged, and decreed that "Waiter C. Cooper, administrator of tlie estate of James Hensley, deceased, proceed to sell all the perishable property belonging to the said succession at the late iv^dence of the deceased, and that lie also proceed to sel) so much of the. real estate belonging to (he said succession as shall he, of value sufficient. to pay-the debts of the said succession and tlie expenses of administering tli' same.

J. H. MONEY, Probate Judge A. C:"

Then follows- an order from a justice of the peace, of Washington county, to tin- * individuals, to appraise two tracts of land, part of the league of Harmon Hensley; the return of the appraisers; then the administrator’s return of tlie ace.-nut of .--ale of two tracts of land appraised, the lirst sold to Rebecca Allen aim tlie second to J. E. Lyneli, (one of tlie appellants,) amounting to $981.87. TK : ret nni is sworn to by tlie administrator before.tlie probate judge, and tlie -ord-v <>i the judge, as follows :

“ Let the foregoing be admitted to record. Oct. 28t.h, A. D. 1841.

J. II. Money, Probate Judge."

The object ions taken to the. proceedings of the Probata Court just cited that will 1- - notiv-d are: that the petition does not show a conformity with the law ill tiii-. (hut it- does not show that tlie perishable property had been exhausted before . pplying to the Probate Court for an order of sale, of the real property; that tb" record does not show the facts constituting the. necessity for a sale of me real property; that the record should show the. evidence by which the judge of the Probe > Court, acted in awarding the decree directing the sale of tlie real property; t hat the Probate Court being a-court of limited jurisdiction, if the record doe.-, not disclose all the facts necessary to the exercise of its jurisdiction in giving its judgments and decrees, they are void.

The question how far a defective judgment, order, or decree of tlie Probate Court could he considered in a collateral matter lias been much discussed in the 'Supreme Court of Alabama, in a case calling in question a sale of real estate by an administrator, in a suit brought for the same property by the heirs of tlie intestate, and in its principles and features in many respects similar to the case before us. By the statute of tlie State of Alabama, after an order of sale lias Leen decreed, the administrator is required to give bond to conduct the sale according to law before he can obtain (lie order from the cleric of the Orphans’ Court. In the case of Wyman et al. v. Campbell et al. (6 Port. R., 219) the Circuit Court eharged'the jury “that if the administrator had sold the real estate of his intestate without giving bond according to law, his proceedings were absolutely void.” This charge was assigned as error in the Supreme Court of the State. In overruling the opinion of the judge of the Circuit Court and reversing the judgment, Chief Justice Collier discusses with great abilitjr the right lo question the judgment of the Probate Court, on account of any error or defects in such judgment, in a collateral inquiry.' lie puts the judgment of that court upon the footing of all other judgments; that the inquiry can only be, had the court competent jurisdiction to render such judgment? If it had, however erroneous it maybe, that judgment cannot be controverted until it lias been reversed or set aside bj an appellate tribunal in a proceeding having that object directly in view. (Id., 241, 242.) The Chief Justice in adverting to the fact that the opinion lie was then giving ran counter to the opinion of the court in Wiley and Gayle v. White and Lesley, that hail been twice before the court, reported in 1st Stewart, 331, and in 3 Stewart & Porter, 331, proceeds: “The very great respect we entertain for the learning of the judges who concurred in the opinion in that case, and the propriety of upholding the doctrine of stare decisis, have induced us to give to this case a more careful and elaborate examination. Principles the opposite of those we have stated would be productive of the severest and most, extensive injury. It is impossible to conjecture the vast amount of property held under sales made by order of an Orphans’ Court, and we all know that in at least tliree-fourths of the cases the records are remarkable for their want of technicality and legal precision. Let the rule be established and continued which requires the"record to disclose every material fact, and which makes indispensable to the passing of the title publication of the petition to .sell, the return of the sale, the execution of a bond by the administrator to the Orphans’ Court, and everything else which the statute prescribes as preparatory to a decree, and a largo majority of the titles acquired through such a channel would be overturned'. In questions of doubt arguments drawn db inconveivienti .deserve great consideration. It is worthy of remark that the distinction between void and voidable judgments seems not to have been considered in the case of Wiley and Gayle v. White and Lesley; but it is assumed that the proceedings of the Orphans’ Court may be collaterally impeached for an omission to disclose oil its records an observance of everything enjoined by statute, upon the ground that it is a court of limited jurisdiction. This reasoning only proves the order to have been voidable, if the authority of the court was shown, and that it could not hold good on an appeal or writ of error, but docs not show that it was void_per se, so as to subject it to au indirect attack.” Having participated in the case of Wiley and Gayle v. White and Lesley, it may be permitted me to bear testimony to the correctness of Chief Justice Collier’s remarks, that although twice before the court, the distinction'between void and voidable judgments was not presented or considered, hut it was taken for granted that as the Orphans’ Court was of limited jurisdiction, its judgment could be collaterally attacked. And at that time eases were not as well discussed as at a subsequent period. The remarks of the Chief Justice as to the extent of evil that would result from a different rule are most strikingly applicable to our own State. If irregularities in the Alcalde’s Courts, in the Probate Courts of the Republic., and under the State organization could nullify the decrees and judgments, property would he unsettled to au extent far more distressing than can grow out of land titles emanating from different sovereignties. ,

I have been so forcibly struck with the practical good sense of the remarks of the Supreme Court of Ohio on this subject that I trust I shall he pardoned for introducing them here. In the ease of the Lessee of Goforth v. Longworth (4 Ohio R., 120) the court says: “It is held to he well settled that courts give a liberal construction to statutes authorizing sales of real estate by executors and administrator?!. T?:il)lie policy requires that ail reasonable presumptions should 1)0 made in support of such sales, especially respecting mat-tors in pais. The number of titles thus derived and the too frequent inaccuracy of clerics and others concerned in effecting these sales render this necessary. If a diil'erent rule, prevailed, purchasers would be timid, and estates consequently be sold at diminished value, to the prejudice of heirs and creditors.”

Tim doctrine wo have been discussing was again presented in the Supreme Court of Alabama, at a more recent period, in Hilliard and Wife v. Binford’s Heirs, (10 Ala. R., 977,) and Chief Justice Collier, reviewing and sustaining’ Wyman et al. v. Campbell et al., held that where the record of the Orphans’ Court recites ‘"that a citation issued as required by the statute, and therefore or .-rr. that, i’'' will be admitted to probi ,” it is a most voidable only, and c,. .mil be <■ ^laterally impeached, but m - -l be avt- 1, if erroneous, in a di-: lvct proceeding.

That the Probate Court, has jurisdiction over the estates of deceased persons cannot, be doubted; that this jurisdiction was brought into exercise directly upon tile property, by the petitioner praying the decree for an order of sale of the land, is equally clear. The laud-was' the, subject-matter on which the court exercised its jurisdiction. Whatever -might he the order, it was a question before a competent court, and its decision was subject, to revision by appeal, but could not be attacked in a collateral way. That it was a proceeding in rem can he made manifest by supposing that the. heirs of the intestate had sued Lynch, ihe purchaser, and at templed to show that this judgment or decree for the side of the land was void because they had no notice and wore not parties to the proceedings of the Probate Court. The answer would be that it was not necessary to make them parties, because the proceedings were in rem, acting oil the land directly, and that the decree of tlio court could not be collaterally attacked. If the sale was without any necessity existing at the time tin* order ivas made for such sale, still that order was conclusive until it had been set. aside by proceedings having that object directly in view; and the purchaser, having purchased without fraud or collusion with the administrator, would he protected by tlio sale, if the decree under which it was made was the decree of a court of competent jurisdiction. This would come clearly within the rule laid down in Wyman et al. v. Campbell et al., and the purchaser would not he. affected by any irregularity in the proceedings or error in the judgment of the court in making that decree. All the vigilance the law would exact from him would be to see that the court making the' decree had competent jurisdiction, and iie could not be called upon to inquire whether the evidence before the judge of the necessity of tlio sale had been spread upon tlio record or not.

This would be decisive of the case, according to the principles discussed in the cases we have examined. It is said that a diil’erent rule lias been laid down in New York, in the case of a proceeding before the Surrogate. If so, it is repugnant to the opinion of Chancellor Kent in Moore v. White, (6 Johns. Ch. R.,) and to the opinion of the Supreme Court of the United States in Thompson v. Tolmie, (2 Pet. R., 168,) and to the opinion of the Supreme Court of South Carolina in Gewas and Wife v. Brown et al., (I N. & McC. R., 329,) and to the whole course of the Alabama decisions since Wyman et al. v. Campbell et al., already cited.

But suppose that the rule of law should be otherwise, and it was competent for the appellants in this case to call in question in this suit the correctness of the decree of the probate judge in ordering the sale, and we were now called on to reverse the decree as a ease brought before us on appeal, for this is tlie effect of permitting the decree to be questioned, if it was made by a competent tribunal : would the appellants be in a better condition ? For the purpose of answering the question, we will again refer to the petition. It shows— that is to say, it represents the perishable property to he insufficient to pay the debts, and. asks an order or decree for its sale, and for the sale of the real estate, or so much as may be sufficient for the payment of the debts. The petition states (he value, of the perishable property and the amount of debts presented. The appellants, however, say that the value of the perishable property does not appear upon the, record ; that there ought to be better evidence ; to which they may be answered very appropriately that the record, or .part of (lie record offered in evidence, does not purport to be the whole record -of the succession; (hat it is the evidence o£ the appellants, and if they had brought up the whole, record, it wonhl have; been found that this perishable property had been appraised, and the appraisement properly returned, as re-fjuired by law, into the. Probate Court, and then admitted to record. ' The, law required ibis to he done, and as it is not shown not to have been done — not even a presumption against it raised by the. evidence introduced by appellants — we arc bound to believe that it is so of record. It may be well said that if everything that the appellants insist should appear on the record really ought there so to appear, for aught that appears in evidence it is iu the record. The appellants brought the regularity of those proceedings into the discussion, and as evidence offered the certified copy of the petition for a sale, the decree ordering the sale, the account of the sale returned by the administrator, and the order of the probate judge that it should be admilted to récord; and the cleric certifies that it is a copy of these particular proceedings, and not that it is a complete transcript of the record of the succession. The same may he replied to the objection that it ought to appear on the record that the decree was based on other and better evidence of the amount of the. debts against the estate, than is found in the petition: that as the law required a return of all these debts to be made to the court, and also that as they were required by law to be presented ‘ to the judge for his approval, we are hound to believe that all tliis was before the judge, and iu this way ho arrived at the conclusion that from the amount of debts and the appraised value of the perishable, property, a sale of real estate was absolutely necessary for the payment of the. debts and the expenses of administration. The judge of the Probate Court might, if so inclined, have entered his decree, more formally and recited the nature, of the evidence that produced the conviction in his mind that the estate was really indebted to an amount beyond the value of the, perishable property, and that from the tableau of debts he was fully’- satisfied of the existence of "these debts and the necessity of the sale.hut the law does not require him to state (he evidence or satisfactory proof by which he arrived at his conclusion; nor can we say that his failure to do so renders the decree a nullity, or that it was reversible.

But it was said the decree ordering the sale of the perishable property and the. real estate, under the same order is not in conformity to law ; that no order could legally be made for a sale, of the real estate until after the sale of the perishable properly; and that there-was no other means of ascerlaiumg that there would he a deficiency of assets from that source to pay the. debts. It is certainly.very clear that the proceeds of the sale of the perishable property ought first to be relied on as the fund for the payment of the debts; and such was and is the meaning of the law; luff (hero is nothing that would restrain the Probate Court from ordering the, real property' to be sold as soon as it was made to appear that there would he a deficiency from the perishable property. The, section is exceedingly awkwardly expressed. After directing that (he administrator shall petition; within three months from his appointment, for the sale of all the perishable property belonging to the succession, and all or such portion of the other personal property, except slaves, as may be shown to the court to be necessary for the payment of the debts against the e.-.talo, it then continues, with a comma after the word estate, “ami in case, or if on further information, he finds that the proceeds of .the personal property-will not be sufficient to pay the said debts, ho shall then, within six -months .after his appointment, or as soon as he ascertains the deficiency, petition,” Ac. The most satisfactory construction iliat can he put on (he clause or part of tlie section last quoted makes it his duty to petition as soon as the fact of tlie insufficiency is made apparent, without regard to the fact that,the perishable property had not yet been sold. And in this case it was apparent that there would be such deficiency from the amount of debts presented and the small amount that could be realised by the sale of the perishable property. And on thl- being satisfactorily proved to the judge, we cannot perceive that there would be'error in his decreeing the sale of both at the same time.

Note 93,—Edmondson v. Hart, 9 T., 554; Thompson v. Munger, 15 T., 523; Walton v. Reager, 20 T., 103.

Noth 94.—Hart v. Horton, 12 T., 285; Poor v. Boyer, 12 T., 440; Dancy v. Stricklinge, 15 T., 557; Burdett v. Silsbee, 15 T., 604; Soye v. McCallisler, 18 T., 80; Alexander v. Maverick, 18 T., 179; George v. Watson, 19 T., 355; Baker v. Coe, 20 T., 429; Giddings v. Steele, 28 T., 732; McCown v. Foster, 33 T., 241; Davis v. Wells, 37 T., 606; Newcomb v. Hall, 38 T., 561; Hudson v. Jurnigan, 39 T., 579; Harrison v. Oberthier, 40 T., 385; Kleinecke v. Woodward, 42 T., 311.

In tine, if t he decree of the Probate Com i \\ as bofo re us for revision, I could not say, from the presentation of the reco'd, that it ought to be reversed. I am, however, very clearly of the opinion that if it was defective and erroneous and the error apparent, it could not bo questioned by the appellants in this suit; that it eotthl only be attacked by proceedings having that object directly in view; that is to say, to reverse or revoke it. It may be an erroneous judgment, but it is a judgment of a court of competent jurisdiction, and is safe from a collateral attack.

It will be perceived that from the view we have taken, even if the decree of the probate judge could he questioned in this suit, the judgment of the court, below would'be affirmed, because we discover no substantial errors or defects in that decree.

Judgment affirmed.  