
    The Commercial Bank of Manchester vs. Doe, on demise of Joseph Martin et al.
    Where the record of proceedings in the probate court for the sale of real estate by an administrator, are read without objection in the court below, in an action of ejectment for the land thus sold by the administrator; and neither party excepted to the admissibility of the record on the trial below, the high court of errors and appeals will not entertain objections thereto.
    Where in an action of ejectment the defendant claims title to the premises in controversy, through a purchase thereof at an administrator’s sale, and is permitted on the trial to read without objection the record of the proceedings in the probate court preliminary to the order of sale by that court, he ought also to be allowed to read the deed to himself from the administrator, to the land so sold.
    An order, judgment, or decree is void, when the court rendering it has not jurisdiction of the subject-matter or of the parties; both must concurto make the proceedings valid.
    In the proceedings in the probate court by an administrator to sell the estate of his intestate, the records of that court must show affirmatively that the notice required by the law to give jurisdiction of the persons interested in the land, was given, or the proceedings will be void; yet it seems if the record recites that due notice had been given according to the statute, and that the parties had appeared, such recital will be prima facie evidence of the fact.
    Whether in an application by an administrator for the sale of his intestate’s realty, to the probate court under the statute, it is competent for that court to appoint a guardian ad litem for those interested in the land, without any notice to them, — Quaere?
    
    In error from the circuit court of Yazoo county; Hon. Morgan L. Fitch, judge.
    John Doe, on the demise of Washington Dorsey, guardian of Joseph Martin and Adeline Martin, brought an action of ejectment for Lot No. 3, Section 28, Township 13, Range 2, west, in Yazoo county, to which the Commercial Bank of Manchester was duly made defendant. A trial was had, and verdict rendered for the plaintiff. From the bill of exceptions these'facts appear.
    The plaintiffs proved the death of John Martin, and that they were his heirs at law; they also proved that he entered the land in controversy, and closed their case.
    The bill of exceptions then recites, “The defendants then introduced the records of the probate court, showing the appointment of William A. Baughan, administrator of John Martin, his application for an order of sale of the locus in quo; the different proceedings had thereupon, and the final order of sale by the probate court, which were admitted to go in evidence to the court, and are hereby referred to, marked (A) as part thereof. The defendant then offered in evidence to the jury Baughan’s deed to John Allston, and the record of judgment, execution and sheriff’s deed to the Commercial Bank of Manchester, marked (B), (C), and (D), as parts hereof, which were objected to by the plaintiffs, and the objection thereto sustained by the court. To which opinion the defendants, by counsel, immediately excepted, and reduced this bill of exceptions before the jury left the box.”
    The record from the probate court was as follows, viz.:
    “ Proceedings had before the honorable probate court of Yazoo county, state of Mississippi. Minutes, January 23, 1832.
    “Upon application, ordered that letters of administration be granted to William A. Baughan, upon the estate of John Martin, deceased, upon his entering into bond in the penalty of $30,000, with Robert A. Patrick and Joseph McKinstry as sureties, and the said Baughan came into court, gave bond, and took the oath required by law.”
    There then followed in the record an order for the appraisement of the estate, &c. Following this, on Tuesday, the 15th day of May, 1832, is the following entry, viz.:
    “ Whereas it has been represented to this court, by William A. Baughan, administrator of the estate of John Martin, deceased, that said Martin died seized and possessed of divers real estate, among the rest lot number three, in section twenty-eight, township thirteen, range two, west, in the Choctaw land district, on the west bank of the Yazoo river, in Washington county; and whereas it is further represented and suggested that it would be for the interest of the devisees, heirs and other legal representatives of said decedent; and having made application to sell the same according to the statute'; whereupon it is ordered by the court that citations issue directed to Hampton Martin and Robert S. G. Perkins, guardian ad litem, of the minor heirs of said John Martin, deceased, and all other persons interested in the distribution of said estate, to be and appear at the regular term of this court, on the fourth Monday in August next, to show cause, if any they can, why said order of sale for the above described piece of land should not be granted, and that the same be exposed to sale in pursuance of the statute. It is further ordered by the court that publication be made for six successive weeks, in two of the most public newspapers in the state, notifying all persons interested in said land, to appear on the fourth Monday in August next, at the court-house in the town of Benton, Yazoo county, being a regular term of the probate court for said county, to show cause, if any they can, why the administrator of John Martin, deceased, should not have an order of sale for lot number three, in section twenty-eight, township thirteen, range two, west, in the Choctaw land district, in pursuance of the' statute in such case made and provided.
    “On application of Robert A. Patrick and John McKin-stry, sureties of William A. Baughan, administrator of John Martin, deceased, for new or counter security, ordered that citation issue, commanding him to appear at the next regular term of this court, and give said security, or his letters of administration will be revoked.
    “ Ordered by the court, that Robert S. G. Perkins be, and he is hereby appointed guardian ad litem of Moultrie, Rhoda, and others, minor heirs of John Martin, deceased.”
    “The following was entered on the minutes of the probate court, 27th day of August, A. D. 1832.
    
      “It is ordered by the court, upon the application and consent of the parties, that the citation issued at the May special term against William A. Baughan, administrator of the estate of John Martin, deceased, for new and counter security, be dismissed, and that the plaintiffs pay the cost.
    “William A. Baughan, administrator of John Martin, deceased, vs. H. Martin and. R. S. G. Perkins. Citation of plaintiffs continued by consent.
    “And whereas on the 9th day of November, 1832, the following was entered on the minutes of the probate court of Yazoo county, viz.:
    “William A. Baughan, administrator of John Martin, deceased, vs. R. S. G. Perkins, guardian ad litem of the minor heirs of John Martin, deceased, and all other persons interested in the lands, tenements and hereditaments of said Martin, deceased.
    “This day came the respective parties, by themselves and their attorneys, and it appearing to the satisfaction of the court that due notice has been given by the administrator, in pursuance of the statute, and it .farther appearing to the satisfaction of the court from the proof exhibited, that it is to the interest of the heirs, devisees and other persons interested in the lands, tenements and hereditaments of said estate, to sell the lot or piece of land mentioned in the said administrator’s petition. Whereupon it is considered and ordered by the court that William A. Baughan, administrator of the estate of said John Martin, deceased, expose to sale at the court-house door of Yazoo county, lot No. 3, in section No. 28, in township No. 13, range 2, west of the Choctaw land district, upon a credit of twelve months, after giving thirty days’ notice at three public places in the county; and it is further ordered that he shall require security of the purchaser.”
    This is the whole record offered in evidence; no certificate of any kind was attached to it; no statement that it was a partial or complete transcript of the records of the probate court.
    The administrator’s deed of the premises in controversy to John Alston, was dated December 24, 1834, and conveyed the property previously described to Alston by virtue of the order of November 9th, of the probate court of Yazoo county. The deed was regularly acknowledged and recorded.
    The judgment against Alston, under which this land was bought by the Commercial Bank of Manchester, was in favor of Buckner, Stanton & Co. for $10,964 58, rendered May 80, 1839; and the land was sold under execution on it on the 10th day of January, 1841.
    It was agreed by counsel, that the exhibits referred to in the bill of exceptions should constitute a part of the record. The bank sued out this writ of error.
    
      W. R. Miles, for plaintiff in error,
    contended that the record of the probate court showed enough to give it jurisdiction over the person ; as there was a guardian ad litem, it had jurisdiction of the subject-matter. The title, therefore, of the bank to the premises in controversy, was complete.
    
      W. E. Pugh, for defendant in error.
    A sale of real estate by an administrator, unless for the payment of debts, or to enable him to make distribution, is absolutely void. Baines v. McGee, 1 S. & M. 208. The petition to sell the land in controversy does not present either of these cases, but only alleges it to be to the interest of the heirs. On the sale of lands by order of the probate court, the record must show that legal notice has been given to the heirs. Guinn v. Me Carroll, 1 S. & M. 851.
    A sale by order of the probate court of the real estate of a decedent must be made in strict conformity with the law. 2 S. & M. 326. Nor is the sale complete until it is reported, and a judgment of the court confirming the report had. Ib. In this case the records do not show this to have been done.
    A sale by an executor or administrator, unless in the mode prescribed by statute, passes no title, and is void. Dowell v. Webber, 2 S. & M. 452.
    In the case now under consideration the time between the decree of sale and the sale, was less than thirty days; hence the notice of sale required by law could not have been given. How. & Hutch. 408.
    Q. D. Gibbs, on same side,
    contended,
    1. That in making the sale the administrator did not conform to the order, nor the law. The application was made under the law. How. & Hutch. 419. The administrator gave no bond as required by the law; nor was the requisition of the law in other respects complied with. 2 S. & M. 215, 529.
    2. There was no proof that the probate court confirmed the sale, without which it was invalid. Robertson v. Haim, 1 Freem. Ch. R. 265; Tooley v. Kane, 1 S. & M. Ch. R. 518 • How. &> Hutch. 408.
    3. The probate court had...neither jurisdiction of the parties in interest, or of the subject-matter. The first steps were taken at a special term, and a guardian ad litem appointed, without notice to the minors. The jurisdiction of the court was special and limited, and the record must affirmatively show that it existed. 2 Yerg. 400; 3 lb. 355; 5 Con. R. S. C. U. S. 631, 632,662; 1 How. (Mi.) R. 470, 559; 6 lb. 234, 273; 2 lb. 823 ; 10 Mod. 345; 1 Salk. 181, 268 ; Collard’s Heirs v. Groom, 2 J. J. Marsh. 487; 2 S. & M. 213; Campbell v. Brown, 6 How. 106, 230; Smith v. Denson, 2 S. & M. 326.
    
      R. S. Holt, on same side.
    1. It is insisted that the order of sale was void, as to the minors, because made without their having been brought into court. R. S. G. Perkins was appointed their guardian ad litem before any service of process upon them, either actual or constructive, and at a special term of the probate court. This appointment was utterly void, because the court had no power to make it before the service of process. 2 J. J. Marsh. 487; 2 Mon.. 107; 4 Paige, 102.
    2. It was also void for uncertainty. It should have described the minors by name. It leaves the guardian to ascertain by inquiries out of court, who he was to represent, and furnishes to the minors no record proof by which in after time he could identify himself with the person with the protection of whose rights the guardian was entrusted.
    3. It was void for the further reason, that it was made at a special term of the probate court, without its being shown by the record that the judge of that court gave notice of the time and purposes of holding the special term, as required by law. This notice is in the nature of process, and from it the court derives all its power of doing business at such extraordinary session. 1 S. & M. 351; 6 How. 230 ; 1 lb. 163,380; 5 Cranch, 173; 5 Mon. 380; 1 J. J. Marsh. 407; 2 Yerg. R. 404; 19 John. R. 39; 11 Wend. 652.
    4. The citation was directed to Perkins as guardian ad litem, of the minor heirs of Martin, and all others interested. This distinctly excluded the minors in person from the notification contained in the citation. The term “others” can by no construction be made to embrace them. They were in fact considered by the court as represented by their guardian, and no process was deemed necessary except to bring him into court,' and the citation was framed in accordance with this view. 2 J. J. Marsh. 487; 2 Mon. 109.
    5. His sale was not reported to, nor was confirmed by the probate court. Until his sale had received the sanction and confirmation of the probate court it was not final, and he had no power to execute a deed to the purchaser. 2 S. & M. 326.
    6. The order of sale, and the date of the sale, as recited in the deed, show that the administrator did not give notice of the time and place of sale as required by law. It is a familiar rule that he can only sell the property of the deceased by conforming strictly to the requirements of the statutes under which he acts. This omission is necessarily fatal to the sale which he attempted to make. How. & Hutch. 408.
    7. Another objection to the validity of the order of sale is, that the cause was not continued on the docket of the probate court from term to term, from the filing of the petition to the time of the order of sale. This resulted in a discontinuance by which the cause was out of court. We have no statute modifying in this respect the rule of the common law, except as to the proceedings in the circuit court.
    
      
      George 13. Yerger, for plaintiff in error, in reply.
    1. This proceeding was founded on the statute. How. & Hutch. 418, 419. The record shows that Perkins was appointed guardian ad litem. The want of actual service on the heirs, where the guardian appears for them, renders the proceeding erroneous, but not void. 3 Dev. R. 241; 6 S. & M. 485.
    2. The order directs notice to be also given by publication for six weeks. The decree of the court states, that it appeared to the court that due notice had been given by the administrator, as required by statute, &c. The due notice required was publication for six weeks, &c. See How. & Hutch.
    3. It is said, the continuances were ordered, and the case was discontinued. In probate and chancery courts this is not necessary. The rule as to discontinuances applies to proceedings in courts of common law only.
    4. It is said it was a special term, at which the order was ’made, and that the notice required, &c., in cases of special terms, should be spread on the record. This court must presume the court acted legally. It could not sit without it was published. The fact of its holding its term, and doing business, is prima facie at least. It stands until disproved. But the order or decree was made at a regular term. The parties appeared, were before the court, &c.
    5. It is said the administrator’s sale is void, because there is no decree of confirmation, &c. This' statute does not require it as some of the others do.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action of ejectment brought by the heirs of John Martin against the Bank, to recover a certain lot of ground. The plaintiffs gave in evidence an entry made by their ancestor in the land-office for the premises, proved his death, and that they were his heirs, and there rested the cause. The defendant, in the language of the bill of exceptions, then introduced the records of the probate court, and read the different proceedings had thereupon, and the final order of sale by the probate court.” These were read without objection. The defendant then offered to read the deed of the administrator, under the said order of sale, to John Alston, and the record of a judgment against Alston, an execution and sheriff’s deed for the premises to the bank, which were objected to and excluded by the court. To this opinion an exception was taken, and it is the only exception in the cause. No charge to the jury was given or refused, and a verdict was rendered for the plaintiffs below. There was no motion for a new trial, nor does the bill of exceptions purport to set out all the testimony.

No part of the argument in this court rests upon the exception, but the whole is directed to the attack or defence of the record óf the probate court. Yet the propriety of the exclusion of the other testimony, is the only direct point, which the record presents.

It is insisted in argument that the whole proceedings in the probate court, as set out in the record, are void; that the sale under them is void, and consequently that the derivative title of the defendant is void. But these questions were not presented in the court below at all-; the record was read without objection, and if the questions had been there raised, those matters might possibly have been supplied, 'the absence of which, it is now urged, makes the whole void. It is said it was right to exclude the sheriff’s deeds, because the proceedings in the probate court were void. That point should have been presented by exceptions to the admission of that record. This court is called on to correct an error, of which neither party complained in the court below. This is against our usual mode of proceedings in questions of this kind, and would convert this into a court of original, not of appellate jurisdiction. See Doe v. Natchez Insurance Company, 8 S. & M. 205; Neely v. Planters Bank, 4 Ib. 113; Sessions v. Reynolds, 7 Ib. 130.

An order, judgment or decree is void, when rendered by a court, which has no jurisdiction of the subject-matter, or of the parties. Both must concur to make the proceeding valid. In this instance, the probate court clearly had jurisdiction of the subject-matter; whether it had jurisdiction of the parties depends upon the fact of notice, either actual or constructive. The record recites that due notice had been given according to the statute, and that the parties had appeared, a circumstance deemed equivalent to notice. It is perhaps not going too far, to regard this as prima facie evidence of the fact. If it had been controverted below, a more complete transcript of the record, might have furnished conclusive proof, for this does not purport to be a full record. It is true that the record must show affirmatively, that the court had jurisdiction. It is a special jurisdiction, and all that is required to confer it, must be made affirmatively to appear. Planters Bank v. Johnson, 7 S. & M. 455. If the recital be correct, that due notice was given, and that the parties appeared, it would, under ordinary circumstances, establish the jurisdiction.

But it is said that in this case the first step was taken at a special term of the court, and that a guardian ad litem was then appointed, who was the person that subsequently appeared. This was a step of questionable propriety; but if notice was properly given afterwards, and no exception taken to this preliminary step, it would be going far to say, that the whole subsequent proceedings were void.

We are not prepared to say that the sale was valid; the proceedings in the probate court show great irregularity. But the exclusion of the title papers offered, cut short the defence. We give no opinion as to the validity of these proceedings. That is a matter which must be determined hereafter, perhaps with a fuller record. We only decide that as no question was raised upon these proceedings in the court below, and as they were read without objection, the deed of the administrator should also have been admitted.

Judgment reversed, and new trial awarded.  