
    William Smith vs. James H. Denson, Administrator of Michael McCaffrey.
    The probate court is clothed with a discretion in granting orders for the sale of real estate of decedents, and when the order has been made, it seems, that the question of its propriety or authority should be closed.
    A sale by order of the probate court, of the real estate of a decedent, must be made in strict compliance with the law or it will be void.
    The allegation in a petition filed to set aside the sale of real estate by an administrator, that there was no citation issued, to give notice to the parties interested, prior to the sale, if it is not admitted by the answer, or sustained by proof, is not of itself sufficient evidence to justify the court’s declaring the sale. void.
    Where a sale of real estate has been made by an administrator by order of the probate court, that sale is not final, until the sale is reported to the court, and there is a judgment of the court ratifying it.
    Whether a probate court has power to set aside and vacate its own judgments, Qnere ?
    
    On appeal: from the probate court of Madison county.
    The appellant filed his petition in the court below, at the May term of said court, 1842, setting forth that he, on the 22d day of October, 1838, had become the purchaser of certain lands lying in Madison county, which belonged to the heirs of Michael McCaffrey, deceased, at the administration sale of the appellee, James H. Denson, who was the administrator de bonis non, of the personal estate of said deceased ; that he executed to said Denson, as administrator, as aforesaid, three promissory notes for the sum of seven hundred and forty dollars each, falling due respectively the 22d day of October, 1839, 22d October, 1840, and 22d October, 1841, and upon making a delivery of said notes, secured as therein stated, to said Denson, said Denson, as administrator aforesaid, executed to appellant a deed to said lands, that he paid on the first of said notes on the day of its maturity, $266-^ §; on the second day of January, 1840, the further sum of that^ he had made arrangements to pay other considerable sums on said notes, but becoming alarmed as to his title to said lands, he had declined to make the pay-merits contemplated; that Denson had to that time made no report of the sale made by him, but threatened to do so at the next term of the/ probate court, and to institute suits in the circuit court, forthwith, on said notes, to compel payment, of the same, unless they were promptly paid. The appellant, in his petition, also recites the various proceedings had by the court below, and said administrator de bonis, in relation to ordering, decreeing and conducting the sale of the lauds in controversy, and states a variety of facts, both of record and in pais, showing that the proceedings of said court in ordering , the sale of said lands, and the proceedings of said administrator in making said s'ale, were illegal in every particular : among others, that Michael McCaffrey, deceased, left surviving him, his children and heirs at law, Elizabeth McCaffrey, Mary Arm McCaffrey, and James McCaffrey; that they resided in this state at the time said probate court made its primary order as to the sale of said lands; that no citation whatever was issued as required by law, either for said heirs or their guardian, or any other person ; that said heirs had neither actual or constructive notice as the law requires ; that no citation was set up in three of the most public places in the county; that the administrator de bonis non made no just and true account of the personal estate and debts of the deceased, at the time of his application for sale of said lands; that it appears of record that upwards of two thousand dollars were in the hands of the original administrator, Joseph W. Coup, at the time of his decease, and that the same were unappropriated at the time of the application of Denson for said sale; that Denson acknowledged, in his petition to the court, that the debts were only five or six hundred dollars ; that it appears of record that it was not necessary to sell the lands to pay the debts; that the first order of the court did not direct such a citation to issue as is required by law; that the second order referring to the issuance of citation, (which never in fact issued) states that such citation had issued at the March term of the probate court, 1838, a month before the filing of the petition by Denson for the sale of the lands; that the orders, whether under the law directing a sale of lands when necessary to pay debts, or the law which authorizes a sale of lands when for the interest of the heirs, are illegal in either case, the requisitions of the law' as to both courses to be pursued, being disregarded ; that the administrator de bonis non did not make the advertisements and notices of sale according to law ; that he postponed the sale more than forty days — and a variety of other facts not deemed necessary to be stated. The appellant prays in his petition that the final order of the court decreeing the sale of the said lands, dated the 26th of June, 1838, may be reviewed and reversed, and that the sale of the lands may be set aside, and they be decreed to revert to the heirs at law, and be declared a part of the estate of said Michael McCaffrey, deceased, and the notes be delivered up to the petitioner, and that the administrator de bonis wow refund the sum paid as aforesaid, and that citations issue for defendant. Thereupon, at the same term of the court at which the petition was filed, to wit, May term, 1842, the probate judge indorsed on the petition an order to the clerk of his court, to issue process as prayed for, returnable to the September term of said court, 1842. The citations issued and were served on all the parties. On the fourth of October, 1842, Den-son, the administrator de bonis non filed his answer to the petition, admitting most of the material facts stated in appellant’s petition; but stating with reference to the issuance of the citation referred to, that he was ignorant, and neither admitted or denied the fact. The cause was regularly continued until the April term of said probate court,. 1843, when the probate judge dismissed the petition for want of jurisdiction ; from this judgment of the court dismissing the petition for want of jurisdiction, the appellant, conceiving himself aggrieved, has made this appeal.
    The errors assigned are,
    1. The court erred in dismissing the petition, for the cause assigned to it, to wit: the want of jurisdiction.
    2. The court erred in dismissing the petition, after allowing it to be filed and directing process to issue.
    3. The court erred in dismissing the petition, for want of jurisdiction, after the administrator, Denson, had answered to the merits.
    
      4. The court erred in dismissing the petition, which claimed relief against its errors, and the errors of its officer “in a matter of administration,” before the administration had closed.
    
      Franklin Smith, for appellant.
    The decision of the court below dismissing appellant’s petition, for want of jurisdiction, after answer filed, grants that all the errors imputed to it, and its officer by the appellant, in his petition, as admitted by the answer of Denson, and sustained by the record are truly set forth, but that though granted to exist that it has no power over the subject-matter. The judgment of the court dismissing the appellant’s petition, is the same in effect as a demurrer to the petition and answer admitting all the facts stated, but denying that under the law, the court had the power to afford the appellant relief. I contend that the record shows palpable, errors in the court below and its officer, so much so, as to make the whole proceedings null and void; that the title to the lands purchased by appellant, is still in the heirs of Michael McCaffrey, deceased, that their not having had a citation served upon them, as the law directs, and the requisitions of the statute not having been complied with, -the proceedings of the probate court, so far as they sought to deprive them of the estate of their father, are void, and secondly, that the probate court is the proper tribunal to correct its errors, and afford relief. As to the first branch of the argument, •three cases, decided by this court since this case was commenced, involving the same facts and principles, save the necessity of doing anything, further than to refer the court to them, and the authorities relied on by the court to sustain them, and the laws under which those decisions were made. Campbell, et al. v. Brown and wife, 6 How. Rep. 113-115. Campbell, et al. v. Broion, et al., 6 How. Rep. 234 -236. Pucket, et al. v. McDonald, et al., 6 How. Rep. 273, 274. Statute laws, How. & Hutch. 407, 408, 409, secs.N6, 77, 78. How. & Hutch. 418, 419, secs. 113, 114. Citation and publication must appear from the record. 1 How. Rep. 60, 61, 62. 6 How. Rep. 114, 115, 235.'
    
      Iu disposing of the property of heirs the requisitions of the statutes must be specifically observed. 1 How. 470, 471. 1 How. 559, 560, 561. 6 How. 114, 115. 6 How. 234, 235. 2 How. 823.
    The record of the proceedings of the probate court in ordering the sale of lands of a deceased’s estate, must show affirmatively such a state of facts as gives the court jurisdiction, else the proceedings are void. 6 How. 114, 235, 273. 1 How. 440, 441. 5 Condensed Rep. S. C. U. S., 31, 32, 33. 19 J. R. 33. 1 How. 173, 174. 6 Wend. 440. 9 Cowen, 229, 230. The purchaser taking a deed from the administrator is not estopped from contesting the validity of the sale. 6 How. 273, 274.
    2. The probate court is the proper tribunal to correct its errors, and to afford the appellant relief in the premises.
    By the old constitution, made in 1817, the legislature had the power to establish, in each county within this state, a court of probate, for the granting of letters testamentary and of administration, for orphans’ business, for county police, and for the trial of slaves. Poindexter’s Code, 550, sec. 7.
    By the new constitution, the powers of the probate court seem purposely enlarged, to make it a court of exclusive jurisdiction, over every possible case connected with the administration of an estate, the language being as broad and comprehensive as it is possible for words to admit of. “ A court of probates shall be established in each county of this state, with jurisdiction in all matters testamentary and of administration, in orphans’ business, and the allotment of dower, in cases of idiocy and lunacy, and of persons non compos mentis,” is the language of the new constitution. Art. 4, sec. IS.
    From the meagre power of “ granting letters of administration,” the authority of the probate court, under the new constitution, has expanded to an unlimited jurisdiction, “in all matters of administration.”
    The court of appeals, by an uninterrupted, current of decisions, has declared that the court of probates possesses exclusive jurisdiction overall matters of administration. Edmondson 
      v. Roberts, 2 How. 822, 823. Blanton v. King, et al., 2 How. 860, 861, 862. Cowden v. Cowden, 2 How. 807. Carmichael, et al. v. Brotoder, 3 How. 252. Winchester’s 3d Position, 253. Opinion of the Court, sustaining it, Ibid. 254, 255, 258. Griffith' s Administrator v. Yertner & Wife, 5 How. 739.
    Is this controversy about a matter of administration ? Assuredly. The only law under which there can be any pretence that this administrator proceeded, is the law of sec. 76, (How. & Hutch. 407) ; for although he sold the lands on a credit, of one, two, and three .years, and took promissory notes instead of bonds, &c., in violation of sec. 78, p. 408, How. & Hutch., yet the petition filed by the administrator shows, that the object of his application, if any legal object at all, to have the lands of the deceased sold, was to pay debts; for there was nothing shown to the court whatever, that it was to the interest of the heirs to have the lands sold. No facts stated to that effect; no proof adduced. Then the law of sec. 76, How. & Hutch. 407, gives the right of this application to have lands sold, to pay the debts of the deceased, to “ the executor or administrator ” only for what purpose 1 As “ a matter of administration,” to enable the administrator to attain the end for which he was appointed ; to wit, final and full settlement of the debts of the deceased.
    As a matter of administration, the law allows the administrator, when “the personal estate is insufficient to pay the debts of the deceased,” to make out a full account of the debts and personal estate of the deceased, so that the court might judge of the necessity of selling the lands; and upon the court being satisfied of that necessity, to have the lands sold. The application is made, but illegally made; the order of sale is passed by the court, but illegally passed. The administrator proceeds to sell the lands, under these void proceedings; the appellant becomes the purchaser. Before he pays all the purchase-money, he discovers that he has got no title. Before the administrator makes his report of his proceedings of the sale, (sec. 78, How. .& Hutch. 408) ; before any other step is taken by the administrator, in the matters of the administration, the appellant files his caveat, in his petition, against the confirmation of the sale of the lands, and presents his petition to the probate court, showing its errors, and the errors of its officer. The probate court says to him, in effect, “Our decrees are like the laws of the Medes and Persians — unalterable. It may suit tlie dignity of the circuit courts to grant new trials, to correct'its mistakes; it may be compatible with the character of a court of chancery to allow bills of review, or petitions, to annul interlocutory decrees, made under a mistake of law and facts, but it does not comport with the dignity of a court of probates, to correct or change anything: its judgment is so unerring and infallible, that with it, like the decrees of fate, ‘ what’s written is written ; ’ ” though the error may be discovered while the administration is in fieri, ex-ecutory, yet there is to be no correction. It is true, that this court has decided, since this petition was filed by the appellant in the court below, that he could make his defence in the circuit court, and defeat the collection of the promissory notes, 6 How. 1Ú7, 230; but this court has not decided, and never will decide, but that the court of probate may also grant relief against erroneous, interlocutory orders, before final settlement. On the contrary, this court has over and over decided, (in cases already cited,) that the probate court has exclusive jurisdiction over all the subjects committed to it by the constitution, and that it becomes the duty of all parties interested, or who may become interested in an administration, to watch the administrator’s proceedings, and correct the mistakes as they occur, before final settlement; else there may be no remedy. 2 How. 807, 823. 5 How. 737, 738, 739, 74L. 3 How. '258. In 5 Howard, 737, the chief justice, in delivering the opinion of the court, says, that the final judgment of the probate court is binding on parties and privies; the appellant is privy to the proceedings of the probate court in the sale of the lands, being a purchaser from the administrator. 2 Coke, 597.
    In no instance has this court allowed a party who seeks redress “in a matter of administration,” to become an actor or plaintiff in any other court but the probate court, except in the cases Cable v. Martin & Sell, 1 How. 558, and McRea v. Walker, 
      
      et al., 4 How. 455. And in those cases the reason of the law in favor of the probate court’s jurisdiction ceased. In the first case, Bell was no longer an administrator, 1 How. 559 ; and in the second case there had been no administration whatever. 4 How. 458.
    This court has emphatically decided and has reiterated its decision “that the powers of the court of probate are in every respect as ample, so far as its jurisdiction extends, as those of a court of chancery.” 2 How. 861. 3 How. 258.
    The goal to which every step taken by the probate court hastens, the end it seeks by everything it does in “matters of administration,” is the final settlement of the debts and personal estate of the deceased. From the commencement, in the probate court, of a case of administration, to its final close, when there is nothing left for the court to act upon, every order passed by the court is an interlocutory order, and if mistakes occur, and if the party defendant be the officer of the court, upon whom its process can be served, the court of probate has the same power as the chancellor to alter, upon petition filed, its interlocutory orders and decrees. The order of the probate court to sell the lands, and the sale of the lands were intermediate steps to the final disposition of the administration case. As to the power of the court in such cases and the difference between interlocutory and final decrees, the court is referred to 4 Howard, 503, 504, 505. This court has repeatedly decided, in the cases cited above, that there is no remedy in a court of chancery, for errors that occur in the course of an administration. Surely, then, if the probate court has powers as ample as a court of chancery, and the appellant in this case would have a right to the equitable interposition of a court of equity, (which is evident,) to cancel the contract and vacate the securities, were it not in a matter of administration; surely he has the right to claim' redress in the probate court, against its wrongs and the wrongs of its officer, where his case does not require any one to be made a defendant, but those under the process and control of the probate court, to wit, the heirs at law of the deceased and the administrator. It would be abhorrent to every principle of our laws, that a party cannot seek redress some where, but he must wait until his adversary chooses to sue him before he can have his rights adjudicated.
    Judge Trotter, in delivering the opinion of the court in Green v. Tunstall, et al, 5 How. 651, says, “It never could have been designed to confer upon the court, [the probate court] the right to call in third persons, who are under no obligations and 'bear no official relation to the court.” The counsel for the appellant contends for no such doctrine. The distinction between the two cases is evident. In the case in 5 How. it was sought to recover money of a surety on an administration bond, who bears no official relation to the probate court, and is only answerable over under well-established forms of laws, and well-settled principles to any one who may sue him in a circuit court, and establish there -that he has been damnified by reason of the maladministration of the officer, for whose conduct he had become responsible. In this case the appellant submits himself to the jurisdiction of the court, and claims redress, not against third persons who bear no official relation to the court, but against persons, all of whom bear such relation. How. & Hutch. 473, sec. 19. In the case in 5 How. then, the court and the mode of redress were well known and established; in this case, there is no court allowable by law to grant redress but the probate court, and no course established by the law but the one pursued.
    The second error assigned is that the court erred in dismissing the petition, after allowing it to be filed and directing process to issue. Where there is a contest between parties in the probate court, a bill or petition may be 'filed under the direction of the probate court. How. & Hutch. 472, sec. 17. The parties in this case, have a contest in the probate court as to confirmation of an administration sale, the validity of such sale made under the order of the probate court, and as to the legality of such order, complaint is not made against a- third person, but the court itself, and the officer of the court; the court directed the petition to be filed, by ordering process upon-it, and it was somewhat an extraordinary course in the probate court, to direct process to issue, and after answer in, to the merits, to take the back track and oust himself of jurisdiction. After the answer, ihe court had no right to declare a want of jurisdiction, and dismiss the petition. 1 How, 561, 562.
    The fourth error assigned is that “ the court erred in dismissing the petition which claimed relief against its errors, and the errors of its officer, in ‘ a matter of administration,’ before the administration had closed.”
    Admitting, for tire sake of argument, that there is not such a contest between the parties in this case as was intended by the law of 1821, (How. & Hutch. 472, sec. 17,) yet the appellant claims the benefit of the constitution, the supreme law of the land, made since the passage of that law. It has given the probate court exclusive jurisdiction over the subject-matter of his plaint; it has thrown its doors open to all who have a cause there; it has elevated the court’-s dignity to be a court of full power over the subject-matters submitted to it by the constitution,' and has of course conferred upon it all the means and powers incident to such an important court, and necessary to the exercise of the powers conferred. 4 How. 676. The court of appeals, in language as broad -and full as that used by the constitution itself, has vindicated, in every case where the question has arisen, the probate court’s rightful claim to exclusive jurisdiction, over “all matters testamentary and of administration.” independant of the law, (How. & Hutch. 472,) the constitution of the state, and the decisions of this court under it are sufficiently comprehensive to give-the appellant a right to appear in the probate court, by petition against its errors of administration, while that administration is still progressing. I feel emboldened to declare, that under that constitution, and those decisions, and more especially when I consider the able and státesman-like views taken by this court in Smith v. Halfacre, (6 How. Rep. 600 — 605,) that this court will not only give full scope to the powers of the probate court, as conferred by the letter of the constitution, and the means necessary to the attainment of justice under them, but that it will carry out and maintain the design an'd object of the constitution. That it was the design of the framers of the constitution, by so greatly augmenting the powers of the probate courts over what they formerly possessed, to extend to the citizens of the state, a tribunal in their respective counties, for the arrangement and settlement of all those interesting and important matters connected with the administration of deceased’s estates, must be evident to all from the difference of language used in the old and the new constitution. Nor can that design be better, expressed than in the language of a late judge of this court. In delivering the opinion of the court in Blanton v. King, et al, Mr. justice Pray said, “ the policy of our constitution, like that concerted by the great Alfred, is to bring justice home 'to every man’s door, by the establishments of local jurisdictions connected with the higher courts, which are to correct the errors of limited and inferior ones; thus combining the convenience of the citizen with the certainty of justice.”
   Mr. Chief Justice ShaRkey,

delivered the opinion of the court.

It seems that Denson, the’appellee, as administrator de bonis non on the estate of Michael McCaffrey, obtained an order from the probate court of Madison county, to sell the land of his intestate. Smith, the appellant, became the purchaser, and becoming apprehensive that he had not acquired a good title, he filed his petition in the probate court, praying that the sale should be set aside, alleging various irregularities and' defects in the proceedings of the administrator, previous to the procurement of the order of sale, and also irregularities in making the sale. 'The judge of probate dismissed the petition, supposing that he had not jurisdiction of the matter.

It is worthy of remark, in the first place, that there is no proof in the cause; we can only therefore notice such facts as may be admitted in the answer. The petition sets out the orders of court, in granting a citation to persons interested to appear at a subsequent term, and show cause why an order for the sale of the land should not be made, and also the order or decree of sale, made at that subsequent term; but that does not make them evidence unless the answer admits them.

The principal grounds relied on, for setting aside the sale are, 1. That the personal estate was not insufficient to pay the debts. 2. That no citation requiring persons interested in the real estate, to appear and show cause against the sale, was set up at three public places for the space of thirty days, and published in a public newspaper for the same length of time, as required by the 76th section of the act, in reference to the estates of deceased persons. H. & H. Digest, 407. And 3, that the administrator did not advertise the saje as required by the 78th section, by putting up advertisements in three public places, forty days before the sale, and ~by publishing the same in a public newspaper for the same time.

On an application to sell land, the probate court is clothed with full power to hear the proofs of the administrator and other persons, and after such hearing, may order a sale of land if it should be deemed necessary. H. & H. Digest, 408, section 77. The law seems to place this question entirely at the ■discretion of the court, and when the court has settled that matter by ordering a sale, it does seem that that question should be closed. In this instance, even if we were disposed to question the determination of the court, there is no proof which would authorize us to do so.

As to the second ground relied on, that no citation issued, as the law requires, nothing appears except what is contained in the petition and answer. The petition sets out an order made at the April term, 1838, by which it was directed that a citation should issue, returnable to the June term. It also sets out an order of sale, made at the June term, by which the administrator was ordered to sell the land. This order it is insisted, was absolutely void, because McCaffrey left heirs who are still minors, living with their guardian, and that notice was not given by setting up the citation in three public places, and by publishing it .in a public newspaper for the time required by law, but that in fact the citation was only published in a newspaper, requiring persons interested to appear and contest the sale. Indeed the petition alleges that no such citation issued. The conclusion drawn by counsel, would necessarily follow the premises assumed. It was held, in the case of Campbell v. Brown, 6 Howard, 106, that a sale of real estate, made by an administrator, without a, strict compliance with the law, by issuing a citation and advertising, was absolutely void, and that is now the settled law. But it does not necessarily follow, that the record in this case, calls for an application of the law in this particular. The answer does not admit that there was no citation. The question is therefore open. The court, it seems, did make an order of sale. This it could not legally do without a citation. We must presume, in the absence of all showing to the contrary, that the court acted correctly. It is possible that the parties interested, appeared without citation, and thus dispensed with it. At all events, anyone who asserts that the judgment of a court of competent jurisdiction, is void, for want of proper parties, should produce the record. This has not been done. The party relies solely on his petition, and although it may be true, still it is not such evidence as will justify us in declaring the judgment void. In courts of limited jurisdiction, the record should show everything necessary to give the court jurisdiction, and it was therefore an easy matter for the party to have placed the case before us in a proper attitude.

But it is also said that notice of the time and place of sale, was not published in a newspaper, and put up at three public places as the law directs. If so, the sale may be void, but this objection is premature. The sale by the administrator was matter in pais, and the administrator is expressly required to make report in writing of his proceedings to the probate court. If then, the court has power to set aside the sale, the proper time to do so, is when the administrator makes his report. Until then, the proceeding is not final; there is no judgment ratifying or approving the sale. If the administrator fails to make his report, the court may compel him to *do so. Until that report is made, the court cannot judicially know that a sale Ka's been made. The petition states that the administrator has "not yet reported his proceedings; when he does so, the party can make his objections to their validity, atrd if overruled he can appeal.

This view of the subject, renders it unnecessary that we should determine on the power of the court to set aside and vacate its judgments. The judgments of the probate courts, like the judgments of other courts of law, are final and conclusive in matters over which they have jurisdiction. Griffith's Administrator v. Vertner and wife, 5 Howard, 736. Saxton v. Chamberlain, 6 Pickering. Parties aggrieved by their judgments may appeal, or a writ of error lies to correct errors in law. For an abuse of its process, it may no doubt interpose its power as other courts do. But if they may at any time open and reverse their own judgments, litigation would be endless.

Judgment affirmed.  