
    Thomas Calkins and Maria Calkins v. Thomas Johnston.
    An administrator, for the purpose of subjecting sundry lots of land, held, by different owners, to the payment of the debts of his intestate, brought an action under the code, in the court of common pleas of the county in. which the land was situated. Some of the lot-owners, as well as sundry lienholders, were non-residents of the State, and they were all made defendants and constructively served with process by publication, pursuant to the 72d section of the code of civil procedure, but not in accordance-with the requirements of the act to provide for the settlement of the estates of deceased persons. Held: That the action having been brought' under the code, constructive service could be properly made only according to its requirements j and that the court having jurisdiction of the subject-matter, and. of the persons of the defendants, the order of sale made in the case was, even if erroneous, not void, but voidable only; and, binding the parties until reversed, it could not be collaterally impeached.
    Error to the court of common pleas of Lucas county Reserved in the district court.
    The original action was prosecuted in the court of common {pleas, by Johnston, the defendant in error, against Calkins .and wife, plaintiffs in error, to recover the possession of lot number 2 in the subdivision of certain lands in Lucas county, of which Joseph Wells died seized. The facts of the case, . so far as necessary to an understanding of the points decided, :are stated in the opinion of the court.
    
      Bissell & Gorrill for plaintiffs in error:
    If the court of common pleas had jurisdiction of Revilo Wells in the action brought by the administrator against him and others, our title cannot be invalidated. Newman’s Lessee v. Cincinnati, 18 Ohio, 323, 329, 331; Robb v. Irwin’s Lessee, 15 Ohio, 696; Voorhies v. Bank of the United States, 10 Peters, 450; Irwin v. Jeffers, 3 Ohio St. 289; Heighway v. Pendleton, 15 Ohio, 756; Boswell v. Sharp, 15 Ohio, 464.
    It is claimed that said court had no jurisdiction, because the publication was not made in a paper of general circulation in Lorain county, the residence of Joseph Wells. S. & C. 590, § 126.
    The words of the section relied upon are “ may publish.” This language is merely directory; non-compliance does not affect the jurisdiction.
    With regard to service upon residents, different terms are .adopted. S. & C. 590, § 124.
    During nearly our entire State history, the administrator has been required to procure funds for payment of debts by sale of the land, when the personalty was insufficient. S. & C. 601, § 176; 588, § 117; Robb v. Irwin’s Lessee, 15 Ohio, 696; Piatt v. St. Clair’s Heirs, 6 Ohio Cond. 601.
    Prior to 1824 the court had rightfully jurisdiction to ordei sale without publication. St. Clair v. Morris, 9 Ohio, 18; Benson v. Gilley, 8 Ohio, 614, 615; Lessee of Ewing v. Higby, 7 Ohio Cond. 342 ; Biggerstaff v. Loveland, 8 Ohio St. 46; Grignon’s Lessee v. Astor, 2 Howard, 338.
    If the legislature thereafter meant to take away this jurisdiction, it would have expressed such intent in positive terms. Robb v. Irwin’s Lessee, 15 Ohio, 698. The 126th section contains no such declaration. Mary Wells, the heir to whom - the lands descended, was made party to said proceedings. The administrator was not required to bring into court Revilo • Wells, her grantee.
    Publication in the county of decedent’s residence to widow,. heirs, or devisees of the freehold is directed, because they would there be most likely to receive notice. As to purchasers from them, no such presumption exists.
    The fact that the sale was made by the sheriff cannot affect the jurisdiction. Dabney v. Manning, 3 Ohio Cond. 596.
    In determining questions of jurisdiction courts consider the thing to be done and end to be attained, not the form of-the procedure. Lessee of Ewing v. Higby, 7 Ohio Cond. 344, 345; Aubrey v. Almy, 4 Ohio St. 524; Moore v. Robinson, 6 Ohio St. 602.
    In obtaining an order for the sale of land, the administrator may pursue the form prescribed by the administration act" or the form of action prescribed by the code. S. & O. 1131,. 1132, secs. 604, 605; Code Commissioners’ Rep. 233; S. & C. 622, sec. 287.
    As to all whom the law has made necessary parties these-proceedings have now a full adversary character. Holloway v. Stuart, 19 Ohio St. 472.
    The relief prayed differs in no respect from that demanded by every plaintiff who asks an order that land be • sold to satisfy a specific claim.
    The practice of our courts should be made uniform. The 604th section of the code should receive a liberal construction. S. & C. 940, sec. 2; Rawson v. Boughton, 5 Ohio Cond. 202.
    So far as jurisdictional questions are concerned, these proceedings were valid under the statute regulating administrators’ sales.
    They are also valid as an application by the administrator to the chancery jurisdiction of the court for a direction as -to the manner in which he should execute his trust.
    He desired to know whether any person holding a lot under the partition might pay his share of the debts and release his land. He asked to be put in a position where he could collect this fund without sale. He could properly ask that, in the same proceeding, the court order that if any lot-owner failed to pay his share, his lot be sold. Where a court -of chancery rightfully assumes jurisdiction for one purpose, it retains it for all. Miers v. Zanesville Turnpike Co., 11 Ohio, 274; Oliver v. Pray, 1 Ohio Cond. 772; Chapman v. M. R. R. R. Co., 6 Ohio St. 120; Darst v. Brockway, 11 Ohio, 471; Bank of Muskingum v. Carpenter’s Administrator, Wright’s Rep. 732.
    It is objected by defendant in error that the administrator derives all his power over the realty from the statute.
    The issue here relates to the jurisdiction of the court rather than the powers of the officer.
    If there is a trust, and the legal remedy be insufficient, the court of chancery will grant relief. The source whence the trust was derived is immaterial.
    The administrator has no power over an equitable estate in lands, save from the statute. We believe he has always been at liberty to ask a court of chancery for directions with regard to the sale of this species of property. Stiver v. Stiver's Heirs, 8 Ohio, 221; McDonald v. Aten, 1 Ohio St. 296, 297; Mattoon v. Clapp's Heirs, 8 Ohio, 249.
    The proceedings in question are valid under the act of 1857. S. & O. 621, sec. 283.
    The law of 1858 (S. & C. 622, sec. 287) relates merely to lienholders and trustees. S. & C. 622, sec. 287.
    It does not take away from the court any chancery jurisdiction previously exercised. Lessee of Morgan v. Burnet 18 Ohio, 541.
    
      Under its provisions, the administrator of Joseph Wells could not have obtained the relief desired.
    Our case is summed up in this statement:
    1. The record shows that we hold title under sale made and confirmed by the court of common pleas of the county where the land lies, upon the application of the administrator of its last owner of record, in a proceeding where all necessary persons were made parties.
    2. Every objection of defendant in error relates merely to the regularity of said proceedings, with which we have no concern.
    We trust this will add another to the many decisions by which this court has declared it essential to the public welfare, that titles acquired under administration proceedings be sustained. Boswell v. Sharp, 15 Ohio, 464, 465; Sheldon v. Newton, 3 Ohio St. 502; Irwin v. Jeffers, 3 Ohio St. 390; Ludlow’s Heirs v. Johnston, 1 Ohio Cond. 685; Lessee of Ludlow’s Heirs v. Wade, 5 Ohio Cond. 319, 320; Lessee of Stall v. M’Allister, 9 Ohio, 23; Heighway v. Pendleton, 15 Ohio, 749; Stiver v. Stiver’s Heirs, 8 Ohio, 221.
    
      M. R. & R. Waite, for defendant in error:
    A single question only is presented in this case, and that is, whether the court of common pleas of Lucas county had jurisdiction of Revilo Wells, at the time it made the order for the sale of the premises in controversy.
    He was a necessary party to the proceeding, and was not a resident of the State.
    The claim on the part of the defendant in error is, that the notice to Revilo Wells, he being a non-resident defendant, is insufficient, for the reason that it was published in the county of Lucas, in accordance with the requirements of the code of civil procedure, and not in a newspaper having a general circulation in the county of Lorain, where the deceased last dwelt, as required by the act to provide for the settlement of the estates of deceased persons.
    1. At common law an administrator had no control over, or interest in, the real estate of his intestate. He administered only on the goods, chattels, and credits of the estate. Lands-were not assets in his hands. Ludlow's Heirs v. Johnston, 3 Ohio, 555; Ludlow's Heirs v. Wade, 5 Ohio, 503; Paine's Lessee v. Skinner, 8 Ohio, 162; Leiby v. Parks, 4 Ohio, 193; Breevort v. McJimsey, 1 Edwards Ch. 553.
    At common law the heir was made liable to the extent of' real assets, which descended for the payment of certain classes of debts. 2 Wins. Ex’rs, 1039. The remedy was in-an action by the creditor himself directly against the heir.
    2. In this State, and probably in most of the other American States, power has been conferred by statute upon administrators, -under certain circumstances, and in a certain prescribed manner, to sell real estate to make up any deficiency in the personal assets for the payment of debts.
    For the legislation in Ohio for this purpose, see 1 Chase-Stat. 162, 196, 517, 575, 680; 2 Chase Stat. 931, 1311; 3 Chase Stat. 1775 ; S. & O. 566, 622.
    3. The court of common pleas, in ordering a sale of real estate upon the petition of an administrator to pay debts in accordance with the provisions of the statute, acts under its-powers as a court of probate. It derives all its authority for this purpose from the act to provide for the settlement of the estates of deceased persons, and that has reference only to its-probate and testamentary jurisdiction. Avery's Lessee v. Pugh, 9 Ohio, 68; Adams' Lessee v. Jeffries, 12 Ohio, 274; Sheldon v. Newton, 3 Ohio St. 500; Ludlow's Heirs v. Johnston, 3 Ohio, 563; Bustard v. Dabney, 4 Ohio, 70; McDonald v. Aten, 1 Ohio St. 296; Gilliland v. Sellers, 2 Ohio St. 226.
    
      4. The court of common pleas, while acting as a court of probate, acts as a court of special and limited jurisdiction. Its powers are confined to such as are specially granted. Sheldon v. Newton, 3 Ohio St. 500; Adams' Lessee v. Jeffries, 12 Ohio, 272.
    5. As the statute which confers this jurisdiction upon the-court also prescribes the manner in which it shall be executed, no action can be had except in accordance with the statute. Tiernan v. Beam, 2 Ohio, 383; City of Boston v. 
      Shaw, 1 Metc. 138 ; Millar v. Taylor, 4 Burr. 2319; Hirsdale v. Larned, 16 Mass. 70; Thurston v. Prentiss et al. 1 Mich. 200; Lang v. Scott, 1 Blackf. 405.
    6. This special jurisdiction does not vest in the court until process is served on the parties necessary to be made defendants, and whose rights are to be affected by the proceedings. Lessee of Adams v. Jefries, 12 Ohio, 274; Harbeck v. City of Toledo, 11 Ohio St. 223.
    The statute expressly provides that process shall be served, on the defendants. This provision was first introduced by the act of 1831. 3 Chase, 1782, sec. 32. It was continued in the act of 1840. S. & O. 590, sec. 126.
    7. As the act which authorizes the proceeding prescribes-the manner in which notice shall be given to the defendants,, that notice, and no other, can confer jurisdiction, unless the-parties voluntarily appear. Appearance can only be compelled in the manner provided by statute.
    No other form of notice than that prescribed by the administration act is provided by a/ny statute for this class of cases. The code of civil procedure expressly declares that it shall not affect proceedings under the statutes for the settlement off the estates of deceased persons. S. & C. 1132, sec. 664.
    8. The record shows that the statutory notice was not given. The notice was published in the county of Lucas, in accordance with the requirements of the code of civil procedure, and not in a newspaper having a general circulation in the county of Lorain, where the deceased last dwelt, as required by the act to provide for the settlement of the estates of deceased persons.
    9. The court of common pleas, acting as a court of probate, had full power under the statute of 1858 to grant all the relief asked for, or required by the petition of the administrator. It could, with the powers conferred by that statute, determine all the equities of the parties and the priorities of lien, and distribute the proceeds accordingly. A court of equity could not, therefore, be called upon to act, as there was other adequate remedy provided by law. Under these circumstances the action will be held to have been, in fact, what it purports to be on the face of tbe petition, a proceeding by an administrator to sell lands, addressed, to tbe probate jurisdiction of the court, and requiring a compliance with the provisions of the statutes regulating proceedings under the probate powers of the court in order to give that court authority to adjudicate upon, or in any manner control, the rights of parties.
   Scott, C.J.

The premises in controversy in this case arc part of a tract containing seventy acres of land situate in Lucas county, of which Joseph Wells, a resident of Lorain county, in this State, died seized and possessed in the year 1850. He died intestate, and partition of the premises was afterwards made among such of his eleven children as then retained their interest.therein, as heirs, and the grantees of such as liad sold and conveyed their shares. The particular lot-in controversy was set off to Mary Wells, one of the heirs, who conveyed the same, in September, 1858, to Revilo Wells, under whom defendant in error claims title. The same lot was sold and conveyed to Maria Calkins, one of the plaintiffs in error, in 1866, by the sheriff of Lucas county, acting as a master commissioner, under an order of the court of common pleas of that county. This order was made in an action brought by the administrator of the estate of said Joseph Wells, against the heirs, and their grantees, and sundry lien-holders, for the purpose of ascertaining the amount and priorities of such liens, and seeking to subject the owners of the various lots held in severalty under the partition, in proportion to their respective interests, to the discharge of such liens, and to the payment of the other debts of the estate for the discharge of which the personal assets had proved insufficient. A decree was obtained accordingly, and Revilo Wells failing to pay his proportionate share of the sum necessary to discharge the specific liens, and the other debts due from the estate, the lot in question, then held by him, was sold pursuant to the decree. But at the time this proceeding or action was instituted by the administrator, Revilo Wells was and has ever since continued to be, a non-resident of this State, and was not personally served with process in the ease Notice of the pendency of the action was given to the nom resident parties by publication in the county of Eueas, in ae-' cordance with the requirements of the code of civil procedure, and not in a newspaper having a general circulation in the county of Lorain, where the intestate last dwelt, as required by the act to provide for the settlement of the estates of deceased persons. Defendant in error claims that this notice was insufficient to make Revilo Wells a party to the action, and that the court of common pleas had no jurisdiction of his person, at the time the order of sale was made; .and that such order was therefore as to him absolutely void. The court below' so held, and gave judgment for defendant in error. No attempt is made to impeach the validity of the order of sale, or the title of the present plaintiff Maria Calkins thereunder, on any other grounds; and the only question presented is, whether the court of common pleas had jurisdiction of Revilo Wells, at the time of making' the order for the sale of the premises.

We think the record clearly shows that the action, in which the order of sale was made, was, in fact, brought by the administrator under the code. His petition was verified by affidavit as required by the code. He did not ask nor obtain an order under the act to provide for the settlement of the estates of deceased persons,” authorizing Aim to sell the lands of his intestate. Claiming a right, under the law, to subject the lot in controversy, in the hands of its owner, Revilo Wells, to the payment of its proportionate share of the debts of his intestate, he proceeded, by action under the code, to enforce such liability. He placed himself simply on the footing of one holding a lien or charge upon the land, and he made other lienholders parties defendant, seeking to have the amount and priorities of lien ascertained and determined by the decree of the court, in the exercise of its general equity jurisdiction. The other lienholders answered, setting up their respective liens claiming priority for them, and by cross-petitions asking for the sale of the premises, upon the owners’ default in payment of their claims. Some of these liens arose under a mortgage executed by the intestate, Joseph Wells, in his lifetime ; others were for taxes, and local assessments imposed^ by the city authorities of Toledo, all of which had accrued after the death of the intestate, and for which the administrator as such was never liable. The order of sale was made,, as well under these cross-petitions, as under the petition of the administrator. Had the suit been instituted by theselienholders, they, very clearly, must have proceeded by civil action under the code. By the decree in the case, their liens-were found to be prior to any claims of the administrator and as he could have no right to enforce liens, or collect claims for which he was in no way responsible, it was ordered-that, on default of payment by Eevilo Wells, the lot now in-, controversy should be sold by a master commissioner, and that, after discharging the prior liens from the proceeds, there-should be paid to the administrator a sum equal to the share-of the debts due from the estate which was found to be justly chargeable to that lot. The lot was accordingly sold by the-sheriff of the county, acting as a master commissioner, pursuant to an order directed to him in conformity, with the decree. Maria Calkins, one of the plaintiffs in error, became-the purchaser, and the sale having been confirmed by the-court, the master commissioner was ordered to convey, and.did convey the premises to her accordingly.

Now the question is, not whether this order of sale was-erroneous, or in any respect irregular, but whether it was absolutely void, for want of jurisdiction of the person 'of Revilo Wells.

By the 45th section of the code it is provided, that actions-for the sale of real property under a mortgage, lien, or otherincumbrance or charge, must be brought in the county in which the subject of the action is situated. By the JOth section, service by publication is authorized in actions brought under the 45th section, when any or all of the defendants-reside out'of the State; and the 72d section prescribes that the publication shall be made six consecutive weeks in some-newspaper printed in the county where the petition is filed,, if there be any printed in such county.

Now if the administrator brought his action under the code, .as we think is clearly shown to have been the case, then it was brought in the proper forum — in the court of common pleas of the county where the land is situated. Eevi'lo Wells, it is admitted, was a non-resident of the State, and was constructively served with process in the manner prescribed by the code. Eor all the purposes of the action he had his day in court. Had he seen proper he might have demurred to the petition. If he could show error in the order of sale, he might have had it reversed by the proper reviewing court. We do not wish to be understood as intimating an opinion that the court erred in entertaining the petition of the administrator, and granting the relief which he asked for. We see no good reason why an administrator, having a right to charge lands with the payment of the debts of his intestate, and finding such lands held in severalty by numerous parties, and encumbered with liens, some of them to a greater, and others to a less extent, may not, like an ordinary lienholder, bring all the parties in interest into a court having the proper equity jurisdiction to marshal the liens, and enforce their payment by sale of the premises, and by^ distribution of the proceeds according to equity. In granting such relief the court of common pleas would be acting not simply as a court of probate. But if we assume that the administrator should have been required to proceed solely under the administration act, and obtain authority to sell the lands at administrator’s sale, and that the court erred in ordering a sale through its own officer, as upon execution at law; still it had jurisdiction of the subject-matter, and having the parties in interest before it, the order of sale was not void, but voidable only. Until reversed it binds the parties, and cannot be collaterally impeached.

We think the court below erred in holding the order of sale to be void, as against Eevilo Wells and his grantee, and its judgment is therefore reversed, and the ease remanded for new trial.

Welch, White, Day, and MoIlvaine, JJ., concurred.  