
    A. J. S. Miller v. Elizabeth Miller and others.
    It is not error for the court to adjudicate upon the merits “a cause in equity,’* without the intervention of a jury, where a jury is not demanded by either party, especially where the trial is, upon a transcript of proceedings of the Probate Court, removed to the district by certiorari without other evidence.
    
      ■Querc? Whether after tho act of 1843, (Hart. Big., art. 1067,) and before the act of 1846, the Probate Court had jurisdiction to order the sale of real property belonging to an estate upon, the petition of the administrator. (Note 62.)
    Where a proceeding of the Probato Court is not merely erroneous but void for want of iuns-diction, the limitation prescribed within which it may be revised and corrected in tho Bistrict Court does not apply.
    See this ease, for an instance in which a probate sale was set aside and the purchase-money decreed to be refunded.
    Appeal from Husk. The facts are briefly these: In the year 1812 Samuel Miller died, leaving the appellee, Elizabeth, his widow, and the other appellees, his children.. On the 28th day of March, 1842, George Birdwell, justice of the peace, was appointed administrator of said decedent’s estate by tho Probate •Court of Nacogdoches county, gave bond and took the oatli prescribed by law. Appraisers were appointed on the 17th day of May, 1842. On .the 27th day of June, 1842, an inventory and appraisement were properly returned. Tiie land here in controversy was appraised to $800, or $2 per acre. On tiie 27th June, 1842, said administrator applied to said court for an order to sell the personal property for (he purpose of paying debts. On tiie 9th July, 1S42, an order to sell was.granted. On the 29th August, 1842, aii account of said sale, to the amount of $96.56}, was returned by said administrator.
    On tiie 3d December, 1842, said administrator filed bis petition, stating that the proceeds of the sale of personal property were not sufficient to pay •the debts, and asking- for an order to sell the landed property of the estate; and on the 26th December, 1842, an order was made by said court to sell the landed estate.
    Here George Birdwell’s administration seems to have ceased, and no further •trace of it is found in the record; whether it was by his death, resignation, or final •settlement, we cannot determine. (See Becord, from page 15 to 21.)
    On the 18th day of October, 1843, Isaac R. Vannoy applied to the Probate •Court of Busk county to be appointed administrator de bonis non of said Miller’s estate. At the November Term, 1843,'Vannoy’s application was continued. At the December Term, 1843, letters of administration de bonis non were granted to Vannoy, who gave bond but did not take tiie oath prescribed ■by law. Here we lose sight of Vannoy’s administration until September, 1844. At tiie September Term, 1844, Vannoy applied to said .County Court for an order to sell 350 acres of land, being that now in controversy, to pay debts. Upon this application there was an order made at the same term of tiie court to sell said 350 acres of laud. At the March Term, 1845, appraisers were appointed ■again, who, on the 3d day of March, 1845, being the day of their appointment, returned into court their appraisement of a “title bond on Ben. A. Nansickle “for 350 acres of land ad 36} cents per acre.” This appraisement was not made under oath. On tiie 4th March, 1845, Vannoy “certifies” that lie had sold the 350 acres of land at 20 cents per acre, but does not show who lie sold it to, when, where, or whether privately or at and ion. Here Vannoy’s administration ceases, and no further traces of liim or his acts are disclosed by the record. (See Record, from page 11 to 15.)
    At the February Term of the Prohate Court for Rusk county, 1846, William Howeth was appointed administrator de bonis non of said estate, without any ■application for or notice of the same previously given. He gave bond but never took tlie oath prescribed bylaw. From time to time clown to the [321] March Term oí said court, 1851, Howeth, the administrator, made exhibits of the condition of said (“state, and many other steps were taken therein, and at said March Term, 1851, he made final settlement and was discharged. (See Record, from page 21 to 35.)
    On tlie-day of January, 1S48, William I-Iowetli, as administrator de bonis non, conveyed by deed to the appellant, Andrew J. S. Miller, 34S acres of land, being the same in controversy, for tlie sum of eighty dollars. This conveyance was made without any order of the court therefor; tlie sale never was reported by him, nor was there ever any order of tlie court confirming it. (See Record, from page 7 to 0.)
    On tlie Sr.li May, 1851, the appellees, as distributees of said Samuel Miller’s estate, filed their petition in the court below, and obtained a writ of certiorari to remove the proceedings of the Probate Court into the District Court for investigation. They pray for a revision of said Probate Court’s proceedings and for a trial de novo; that said orders of sale be set aside and declared null and void, that the sale made by Howeth to A. J. S. Miller be annulled and the title vested in appellees as heirs of tlie said Samuel Miller, and that distribution oE (lie same, be made between them, and that they be required, ii it be legal for them so to do, to refund to said A. J. S. Miller the purchase-money with interest. (See Record, from page 1 to 10.)
    On tlie 13th November, 1851, the appellants filed exceptions to tlie sufficiency of tlie petition, and as grounds of exception say, 1st. “That the same ts coram ilnonjmUce, this court"having no jurisdiction,” &c. And 2d. “That the same “ is insufficient in law for them to be compelled to answer,” &c.
    1st. They then interpose the statute of two years between the date of the sale and the commencement of this suit as a bar.
    2d. They plead the three years which elapsed between the date of the deed from Howeth to A. J. S. Miller and the commencement of this suit as a bar.
    3d. They deny generally the allegations in the petition. (See Record, from page 3G to 3S.)
    On tlie 20th November, 1851, appellees filed their amended petition, alleging that the order to sell the land was procured by the false and fraudulent representations of Vanuoy, the administrator, as to the indebtedness of the estate. (See Record, from page 38 to 40.)
    At the Spring Term, 1852, the cause was heard upon petition, exceptions to the petition, answer and transcript of tlie proceedings, and record of the County Court. The court overruled the defendant’s exceptions to plaintiff’s petition, and proceeded to decree—
    1st. That the sale of said land by Vannoy and all orders in relation thereto be canceled.
    2d. That the deed executed by Howeth to A. J. S. Miller be canceled and delivered up to plaintiffs.
    3d. That said land be vested in plaintiff, and that the same be divided between them, one half to the widow and the other half equally between the other appellees.
    4th. That plaintiffs pay to defendant, A. J. S. Miller, $70, with interest thereon from 1st March, 1846, till paid.
    5th. That plaintiffs pay the cost of this suit. (See Record, pages 40 and 41.)
    There was a motion in arrest of judgment and for a new trial overruled, and notice of appeal. (See Record, page 41.)
    The errors assigned are — ■
    1st. The overruling the defendant’s exceptions to petition.
    2d. The court erred in deciding without the intervention of a jury or swearing a witness.
    3d. The court erred in declaring the deed from Howeth to Miller void.
    4th. The court erred in setting aside an order of sale made more than five years before (he commencement of this suit and after the purchase-money had been paid and a deed executed by the administrator. (See Record, page'43.)
    
      
      8. P. Hollingsworth, for appellant.
    I. The court should have sustained the exceptions because the sale was made in pursuance to an order of the Probate Court, which had not been reversed; and because the sale had been regularly reported by the administrator Vannoy, which report had been received by the court; and because Miller, the appellant, was a purchaser without notice_of any fraud on the part of the, administrator or any other person connected with the estate. John C. Miller, the purchaser at the sale by Vannoy, was an innocent and bona fide purchaser without notice, having purchased at a judicial sale, and cannot be ousted of his rights for an irregularity on the part of the administrator in procuring the order of sale. lie was in no way connected with the procuring the order, provided it was admit ted, for argument sake, that it was procured by fraud on the part of Vannoy, all of which we deny, and the record nowhere shows any fact' tliat will go to show anything like fraud, or any inducement for Vannoy to act fraudulently in the promises. And, unless the record discloses facts that will amount to fraud, the court is bound to place that construction on his acts that he intended to act, and did act, correctly, Therefore we say that the court erred in coming to the conclusion from the record that Vannoy acted fraudulently in procuring the order of sale.
    And, again, the plaintiff nowhere alleges in his petition any fraud on the part of John 0. Miller, the purchaser at the sale, or on the part of the appellant, consequently the court erred in not sustaining the exception for this reason; for, until fraud is visited upon A. J. S. Miller, lie is an innocent purchaser without notice, and must hold the land. (Davis ®. Loftin, 6 Tex. R., 4S9; Garrett w. Mash, Dallam, 502; Scott & Solomon v. Maynard, 550 ; Smith v. Smith, 2 Tex. R., 621.)
    II. Unless the record disclosed fraud the court could not judicially know of the existence of any other fraud, only by impaneling a jury to try an issue of facts; or, the cause being submitted to the court without the intervention of jury, there was no witness sworn as the record shows, and no submission waiving a jury.
    III. Tile 3d aud 4th assignment of errors are in substance the same. In the case of Lynch and another v. Baxter and Wife the court, I think, have settled every point that can possibly arise in this case. They say that “ it is not neces- “ sary that record of the Probate Court should show a necessity for a sale of real ‘‘estate; 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 be the decree of a court of competent jurisdiction. And the purchaser “would not be affected by any irregularity in the proceedings or error in the “judgment of the court in making tliat decree. All the vigilance the law would “exact of him would be to see tliat the court in making the decree had competent jurisdiction.” The order of sale, the decree, was made by a court of competent jurisdiction, and he cannot be called upon to show by what authority or for what reason the court made the decree, or whether there was any necessity for the sale or not. or whether the evidence that influenced the mind of the judge was upon the record or not. He is an innocent purchaser, and must be protected. (Hilliard and Wife v. Binford’s Heirs, 10 Ala. R., 997; Wyman el al. v. Campbell el al., G Port. R., 219; Lynch and another®. Baxter aud Wife, 4 Tex., R., 431, and the authorities there cited.)
    IV. And, again, the court erred in setting aside an order of sale made by the Probate Court more than live years after the date of the order. At most it could only have set it aside so far as related to the minor heirs, if at all. Elizabeth Miller, by the plaintiff’s own showing, is and has been a feme sole ever since the death of Samuel Miller in 1842." Consequently, by her own laches, she has lost all her rights, so far as the land in question is concerned, if she ever had any after the sale. The order of sale was made at the September Term of the Trobate Court, 1844, the sale was made in March, 1845. The statute of 1840 regulating Probate Courts required that any person who might he dissatisfied with any order or decree of a Probate Court should appeal therefrom within twenty days. (Davis v. Stewart, 4 Tex. R., 223.)
    No writ of error, supersedeas, or bill of review was prayed for or prosecuted b,y the said Elizabeth within two years from said order of sale as required by the law of limitations of 1841. And tiie same requirement is in the laws of 184G. Then, for this reason, this case should be reversed and sent back.
    But we take the broad ground that the sale to Miller was a judicial sale ; that he was an innocent purchaser without any fraud'or collusion, as shown by tiie record, and until tiie plaintiff is able to show fraud and collusion on tiie part of the purchaser with tiie administrator that his purchase is a good one, and must and will be protected by the courts of the country; that'the sale having been ordered by a court of competent jurisdiction without any fraud apparent in the record, tiie sale under said order is a good sale; that tiie mere fact of the record disclosing tiie fact of a sale of tiie laud for twenty cents is not evidence of fraud or unfairness either on the part of the administrator or the purchaser. And if this position should be sustained by the court, then at least one-fourth, if not one-half, of the land titles in Texas cau be set aside, for it is judicially known to the court that at least two-tliirds of the sales made by executors and administrators in Texas at that time, and even up to the present time, have been made at about the same price, and oftener under than over twenty cents per acre. And, as lias been well said by the court in the case of Lynch and another v. Baxter and Wife, “If irregularities in the alcalde’s courts, “in tiie Probate Courts, and under the State Courts could nullify tiie decrees “ and judgments, property would be unsettled to an extent far more distress- “ ing than can grow out of land titles emanating from different sovereignties.” And to some point the case cited by the court decided in tiie 4 Ohio R., of the lessees of Goforth v. Longworth. “ It is held to be well settled that “courts give a liberal construction to statutes authorizing sales of real estate “ by executors and administrators. Public policy requires that all reasonable “ presumptions should be made in support of such sales, especially respecting “matters in pais. The number of titles thus derived and the two frequent “ inaccuracy of clerks and others concerned in effecting these sales render this “ necessary. If a different rule prevailed purchasers would be timid and estates “consequently be sold at a diminished value to the prejudice of heirs and “creditors.”
    And it might be urged with great propriety that it is time these questions should be explicitly settled by this court; for the doubt that exists in the minds of many already lias and at this time does affect the sale of property sold by executors and administrators. I have never'doubted tiie legality of a sale made under like circumstances of the case before tiie court, but I must say that I have oftener heard it doubted by members of the bar. And this raises doubts in the minds of the people generally. And, consequently, this very fact affects the price of property sold by order of the Probate Court, no difference under what circumstances.
    In relation to tiie question raised by the plaintiff as to the mode of valuation, it is and always lias been the custom of the country -to value lands without going upon them in person; and, at most, this is an irregularity that does not and cannot affect the purchaser at a judicial sale.
    
      J. B. Armstrong, for appellees.
    I. The plea to tiie jurisdiction of the court was correctly decided against the appellant. The District Court is given appellate and original jurisdiction over the matters in controversy. (Hart. Dig., p. 64, sec. lii.)
    IT. If there can be any cases which are properly on the equity side of the court in this State this is one. And if it be an equity case, then the error assigned, to wit, “that the court erred in deciding this cause without “ the intervention of a jury,” cannot avail the appellant anything. The constitution expressly gave him the right to a trial hy jury, provided he had applied for it. There is nothing in the record showing his application for a jury, and it is too late now for him to raise this objection. (See Constitution, Hart. Dig., p. 64, sec. 16.)
    The court below has no authority nor is it bound to furnish parties with witnesses. Nor can the court swear any witnesses or have the same done unless the parties bring them before it. If the record showed that the court had refused to swear the witnesses of either party, then appellant might properly assign it as error, but the record shows no such thing. On the' contrary, it shows that the'eause was heard on petition, exceptions to the petition, answer, and transcript of the proceedings of the Probate Court.
    III. The third error assigned, to wit, “that the court erred in declaring the “deed from I-Ioweth to appellant void,” presents a question of some importance. We think the court did not err. 1st. Because there was no order of the County Court requiring him to make the deed. There was no order of the County Court requiring him to sell the land. There was no application for such an order. I-Ie made the deed in January, 1848, at which time the act of 1846 was of force.' Under the provisions of this act (Hart. Dig., p. 351, art. 1099) a petition to sell was necessary. The heirs should have been cited before the order could be made, and many other things should have been done before the order of sale could be made, none of which were done. There is nothing showing that a sale was made in accordance with the law regulating such sales, (Dig., p. 352, art. 1101,) nor is there anything which shows the appellant to have been the purchaser at such sale. It may bo insisted that the act of 1846 did not govern and regulate the sale. If not, an act of 1843 (Hart. Dig., p. 343, art. 1067) did, and under it-the sale could only be ordered upon the petition of a creditor, and all sales to be made as in execution sales. (Act 1848, Dig., p. 341, art. 1055, and act of 1843, Dig., p. 342, art. 1059.) A second reason why the deed is void is that Howeth, who executed it, never took the oath prescribed by law. (Dig., p. 324, art. 996.) And a third reason why it was properly declared void is that the consideration ($S0) is wholly inadequate, the land having been appraised in June 1832, to $800. And a fourth reason why the deed is void is that it does not recite the order of sale, the sale and confirmation, and order of conveyance. (Dig., p. 351, art. 1099.)
    IV. The fourth error assigned, to wit, “that the court erred in setting aside “an order of sale made more than five years before the commencement of this “suit,” &c., is supposed to refer to either the order made upon the petition of G-eorgn Birdwell, whilst administrator, (see Record, p. 20,) or to tlio order of sale made on the motion of S. P. Hollingsworth for Isaac R. Vannoy to sell the land. (See Record, p. .13.) If it be the former order it cannot avail the appellant anything, because it never was executed, and appellant did not acquire any rights under it, nor can ho or any other person be prejudiced by a rescission of it. It was, however, illegal and improper, the administrator never having-filed any statement showing the uames and residences of the creditors and the amount due, &c., as required by law. (See Dig., p. 332, art. 1025.) No legal necessity for a sale of the land had arisen. But if it be the latter order, (to Isaac R. Vannoy, administrator,) then we insist that the court did no.t err in declaring it void. 1st. Because Isaac R. Vannoy, the administrator, had never taken the oath prescribed by law, (see Dig-., 324, art. 996,) and was not capable of asking for the order, nor executing it when granted. 2d. Because said order of sale was not made upon the petition of any person authorized to apply, for it. (See Dig., p. 343, art. 1067.) 3d. Because the order of sale was made before (to wit, on the 24th February, 1845) the apx>raisers were appointed, on the 3d March, 1845. (See Record, p. 14.) The statute required the appraisers to be appointed on the day of making the order of sale, or some day previous to the sale, and that they he sworn. (See Dig., p. 343, art. 1063.) In this case Parsons, Brown, and Wood, the appraisers appointed, were not sworn. (See Record, p. 14.) 4th. Because the appraisers only valued and returned a title bond on Ben. A. Yausickle, for three hundred and fifty acres of land, and not the land. They do not say that they saw and valued the three hundred and fifty acres of land, but say they valued the title bond at 10$ cents per acre. The former appraisers had valued the same land at $2 per acre. These orders, then, having been fraudulently and unlawfully made, were very properly disregarded by the District Court, and could not bar the plaintiffs in this suit. And, again, the court appointed all the appraisers, when appellees had a right to choose' one, if proper notice had been given them. (See Dig., p. 342.) No such appointment was filed as required by law.
    The administrator Vannoy returned into court on the 4th March, 1S45, an account of the sale of three hundred and fifty acres of land at 20 cents per acre, but he does not show whether lie sold privately or at auction, for cash or for credit, whether notice of the time and place of sale had been given, nor who was the purchaser. Now this is the only evidence of a sale ever having been made of the land in controversy, and, under this report of it, what right does the appellant acquire to it? The record nowhere discloses the fact that lie'was the purchaser at this or any other sale. The only tiling which connects him with the whole administration is the deed for the land made by William Howeth as administrator, and this deed, as is already shown, was executed without any order of the court or other lawful authority.
    Does the sale divest the title of the land out of the appellee and vest it in some unknown person ? Does this deed, executed by Howetli to appellant without any sort of authority, divest the title out of appellees and vest it in appellant? If not, the court below very properly decreed a distribution of it, and that tlie order of sale be set aside and the deed canceled.
    But the District Court erred in decreeing that appellees should refund to appellant the $70 with interest paid to Howeth for the land. He purchased it at his own risk from a man having no authority to sell, and it is not just or equitable that the appellees should be made to suffer on account of it. We ask this court to render such judgment as the District Court should have rendered.
    
      A. Bagley, also for appellees.
    
      
      This statement of faetsis.taken from the appellee’s brief, the transcript not being accessible ■to the reporter.
    
   Lipscomb, J.

The main object of this suit was to obtain a distribution of the real estate of Samuel Miller, deceased, to his widow and heirs; and, to effect this object, an order and sale of the land sought to be distributed is alleged to be contrary to law and asked to be set aside.

It was tried upon the record of the Probate Court, and no disputed fact was presented to be tried by a jury. It is believed that the court below did not err in disposing of the case without the intervention of a jury — the more especially as none was asked.

At the September Term, 1844, on the petition of Vannoy, administrator de bonis non of Samuel Miller, an order was made by the Probate Court for the sale of the real estate of the succession. Then follows an appraisement by their appraisers of a bond for title for three hundred and fifty acres of land, and then the following certificate of the administrator: “I certify the within three “hundred and fifty acres of land being offered according to law and sold for “twenty cents per acre, amounting to seveuty dollars, this 4th day of March, “1845. (Signed) R. Vannoy, administrator. Sworn to and subscribed before “ me, Ezra Wilson. Clerk of Probate.” At this term Vannoy surrendered the administration and Howeth was appointed administrator de bonis non, and on the 11th of January, 1S48, without any order from the Probate Court, conveys the land, as administrator, to Andrew J. S. Miller. The deed makes no reference to the sale made by Vannoy, the previous administrator, nor to any order of sale, but purports to be ou a sale of land by Howeth himself. It does not appear from tire record that Andrew J. S. Miller was the purchaser at the sale made by Vannoy. This deed from Howeth is the, only tille set up by A. J. S. Miller, the appellant. The record shows.no authority in Howeth to make the deed; in fact, it is repugnant to any presumption of authority in him to do so, because it shows that the land had been sold by the previous administrator, although it does not appear to whom it had been sold. This deed, therefore, is no evidence of the title having passed from the heirs of Samuel Miller, the intestate, as it shows no connection or right derived from the sale made by Vanuoy.

Prom the view we shall hereafter take of'the order of sale and the sale under it we will waive the discussion as to how far the appellant could have sustained his right to the land had he really been the purchaser at the sale made by Vau-noy, although, through the neglect of the latter, he had been furnished whh no evidence of such fact. It may, however, be remarked that in his answer he alleges no fact deriving his right from that sale.

Tl>e important question is as to the legal effect of the order of sale made by the Probate Court ou the petition of Vannoy, the administrator. Was that order a nullity or only erroneous and voidable? 'If the first, it could give no right to the purchaser at a sale under it. If the latter, an innocent purchaser would be protected in his purchase, however irregularly the sale had been made or conducted under it. If the court had jurisdiction to make the order ou the application of the administrator for the sale of the real estate its order was not void. There can be no question that, prior to the 25th February, 1S43, the Probate Court liad authority, on the petition of the administrator, lo order the sale of the real estate of the intestate. But the act of 10th January, 1843, to take effect on the 2i>th February thereafter, (Hart. Dig., 1007,) made a material change, and controlled by the former law. It is enacted by it that in no case shall any administrator, executor, or guardian be required to sell any other property than that of a perishable nature belonging- to the estate of a deceased person or ward, nor be required to render and settle, their accounts, except upon application, by petition, of some crodil or or creditors, heir or heirs, legatee or legatees, or of some next friend of the ward, any law to the contrary notwithstanding-.

By the act of 1S40 (Dig., art. 1023) the application for the sale of the real estate of the decedent was required to be made within six months after his appointment, or as soon as he ascertained the deficiency of the personal property to pay the debts. And this was to be done by petition to the. Probate Court, and the court, “on full and satisfactory proof of the existence of such “debts and the necessity of such sale, shall order the same.” And, by article 1024 of the Digest, that if the executor or administrator should fail to petition for the sale of properly as provided for by the previous article, then it may he lawful for an j- one of the creditors of the said estate, whose claim lias been acknowledged or established, to petition for the sale of the property for the payment of the debts against said succession; and the court shall therefore proceed and make such order as if the petition had been filed by the executor or administrator. By the law of 1840, last cited, it will be seen that the order of sale required-as its basis that a petition should he filed by the executor or administrator, or, in default of their not petitioning, that it should he filed by an acknowledged or established creditor. The law nowhere, nor under any circumstances, authorized the court of its voluntary motion to order the sale; and had it been made not in conformity witii one of the two ways, it would have been a nullity. ■ The act of 1843 clearly restricts the former law, and takes away the authority to make the order or requisition (for botli mean the same) on the petition of the administrator or executor, and expressly inhibits its being made on their petition, but requires that it shall be on the petition of a creditor, legatee, heir, or next friend of a ward. The case of Lynch v. Baxter and Wife, (4 Tex. R., 445,) disclosed a proceeding under the act of 18-10. The petition of the administrator in that case gave jurisdiction to the Probate Court to order the sale. If the evidence upon which the court allowed tire order was not sufficient to have authorized granting the petition, although the order may have been erroneous and reversible on appeal, yet it was not a nullity, because the. petition of the administrator for the order of sale liad called into exercise the legitimate jurisdiction of the Probate Court to bear upon and act directly upon the sale of the land.

In a case decided at the last term, of this court at Galveston on a proceeding and an order of sale under the act of 1S16, (Hart. Dig., 1090,) it was held, that to give jurisdiction to the Probate Court to order the sale of real eslate, the terms of the statute must be essentially observed in the petition and the exhibits required to be made by the administrator in the application for the order of sale; and, because it did not appear from the record that the administrator had in his application for the order of sale complied substantially with the requisitions of the statute, we decided that the order of sale and the sale made under it were nullities and gave no right to the purchaser. The case was very fully discussed oil the statute, anti tito adjudged cases under analogous statutes in other States were examined and found to sustain our decision. (Finch v. Edmonson, 9 Tex. R.)

These cases seem decisive of this case. The order of sale was made on the petition of the administrator when, by the act of 1843, before recited, it could only be legally made, and the Probate Court could have obtained jurisdiction only on the petition of a creditor, heir, or legatee. Hence, we conclude that the order of sale and the sale were absolutely void, and gave no right to a purchaser under il.

To the objection made by the app.ellaut that the application to set aside the order of sale and the sale'in this case was made too late, it is sufficient to answer that if these acts had been merely erroneous and voidable, and not void so far as Elizabeth Miller, the widow, was concerned, the objection would have been entitled to consideration, because she was under no disability; but, as they were absolutely void, they could not affect in any way her rights.

We have had some difficulty as to the correctness or necessity of bringing this case into the District Court in the manner it was brought. It may be said that as the order of sale and the sale were absolute nullities, why were they not so treated by the parties, and an application for a distribution made to the Probate Court? The proposition is not free from embarrassment; but the proceeds of this void sale were carried into the final settlement of the administrator, and it was competent to have that final settlement revised and corrected by the District Court. This is believed to be a satisfactory answer and authority for bringing the case into the District Court. And it being there legally, it was competent for that court to adjust and decide on the rights of all the parties before it, and, in reversing the final settlement, to decree a distribution.

I-Iemphill, Oh. J. and Wheeler, J.

We decline to express a decisive opinion as to the construction of the act of 1S43, as it is not absolutely necessary to the present disposition of the case, and may be very important in its bearing. We wish to reserve the question for more mature consideration, should it become necessary to form a decisive opinion. We fully concur in the opinion and judgment of the court, with this reservation.

Judgment affirmed.

Note 02. — The statute of 1843 did not prohibit the probate court from ordering a sale of the property of an estate on the petition of the administrator. (Alexander v. Maverick, 18 T., 179; Allen v. Clark, 21 T., 404; Lee v. King, 21 T., 577.)  