
    Singleton vs. Cogar.
    [Mr. Hewitt for appellant: Mr. Owsley and Mr. J. T. Morehead for ap-pellee.]
    Ejectment.
    
      From the Circuit Court eor Jessamine County.
    
      June 21.
    The Civ. Courts are authorized , by statute, to order a sale of real estate descended to infants, for their benefit, upon applications of their guardians: to the validity of the statute — when applied to estates descended since its passage, there can be no good objection.
    The jurisdiction being special and limited, the statute must be strictly complied with; and unless every fact prescribed by it appears in the record, a decree for a sale under it will he prima facie erroneous. Hence, as the statute only applies to land descended — the pe tition being silent as to the mode in which the title was derived, it was held that it did not sufficiently appear that the Ct. had jurisdiction, and a decree for a sale was reversed.
    The record of such an exparte proceedingsho’d not be deemed as conclusive, in all respects, as it would be if the infant had been a party; and if a decree for a sale were obtained on a false suggestion , made 'to give jurisdiction, it would seem that the infant would not be concluded by the decree; but might show the falsity ofthe suggestion, tile want of juris diction, and consequent invalidity of the sale,by proof aliunde.
    
   Chief Justice Robertson

delivered the Opinion of the Court.

On a petition filed in the year 1828, in the Jessamine Circuit Court, by James F. Cogar, as guardian of his infant brother, William G. Cogar, for a decree for a sale of an interest held by his ward in a tract of land in the county of Jessamine — the Court ordered the sale of the ward’s interest, and appointed the guardian commissioner to make sale of it; who, after executing an approved bond, according to the statute, proceeded to sell it, at auction; when Lewis Singleton became the purchaser, at a price equal to the then full value of it.

Afterwards, the guardian, as commissioner, having conveyed the title to Singleton, and received the consideration, the latter took possession of the land, which he has occupied ever since.

■ William G. Cogar having procured a reversal of the decree, at the Fall term, 1834, of this Court — afterwards, in September, 1835, brought an action of ejectment against Singleton, for the land — about sixty two acres.

The ground of the reversal was, that the petition filed by the guardian did not state that the land had descended to the ward.

But Singleton having proved, on the trial of the ejectment, that the land had descended to William G. Cogar from his deceased father, and that James F. Cogar was his guardian when the petition was filed and the land was sold and conveyed — the Circuit Court instructed the jury, in effect, that they should find a verdict for the lessor, on the ground that, in the opinion of the Judge, the decree under which the land had been sold to Singleton, was void for want of jurisdiction, and that, therefore, the commissioner’s deed had passed no title to him.

The record, in such a case, is conclusive evidence of all the facts appearing upon its face: so where it shows that the land came to the infant otherwise than by descent, it shows conclusively, that the sale was void for want of authority in the court and guardian, to decree and make the sale. But it is not evidence that a fact did not exist concerning which it is silent; and any such fact-to show that a sale was valid, or void, may be proved by extraneous evidence. So, where a sale was decreed upon a guardian’s petition , which did not state hpw his ward had derived title to the land, and the sale was made; and afterwards, at the instance of the ward, the decree was reversed, because the record, silent as to the derivation of title, did not show satisfactorily that the court had jurisdiction ; and the ward then bro’t this ejectment for the land —it is held, that it is competent for the purchaser to show, by proof independent of the record, that the infant’s title was derived by descent; that the court which decreed the salewas not, in fact, with out jurisdiction, and its decree, and the sale under it, not void.

That opinion of the Circuit Court is brought up by this appeal, for revision by this Court.

The act of 1813, (Stat. Law, 806,) confers on the Circuit Courts of this Commonwealth a special and limited jurisdiction to order the sale of real estate descended to infants, whenever, on the application of the guardian of an infant, such a sale shall be deemed, by the Court in which any such petition shall have been filed, to be advantageous to the infant owner. The act evidently contemplates nothing more than to authorize guardians, with the sanction of Courts, to sell lands which shall have descended to their wards. And, in that view of it, there can be no; good objection to the validity of the statute, so far as it applies to titles which descended after the date of it; because, in all such cases, an infant takes the title subject to the statutory power of sale by the guardian’s instrumentality, according to the authority of the statute; and the only effect of the law is to abolish the disability of infancy as to such sales when made by guardians.

The character of the enactment, however, requires that its essential provisions should be strictly complied with; and, unless the record of .a proceeding under it shall exhibit every fact prescribed by it, the order for a sale might be deemed prima facie erroneous.

And therefore, as the statute authorizes the sale only of descended estate, and the record of the proceedings in the case, in which the land was sold to Singleton, did not, in our opinion, clearly show that the ward’s land had come to.him by descent, we set aside the order of sale, because the jurisdiction of the Judge who made it, did not certainly appear.

The petition was silent as to the manner in which the ward had acquired title; and, though the report of the commissioner intimated that it had descended to him from his deceased father, yet we did not consider that intimation either conclusive or certain.

The record of such an exparte proceeding should not be deemed, in all respects, as conclusive as it should be, if the infant had been a party. If the land of an infant had been sold, on a petition by his guardian, falsely stating that it had descended to the ward, when, in. fact, lie had acquired it by devise, might not the ward, notwithstanding the ex parte record, be permitted to prove the truth aliunde, and thus avoid the sale by proof of the extrinsic fact, which would show that the Judge who' sanctioned the sale had no jurisdiction? Or, would the infant be concluded by a false suggestion made by his guardian, for the purpose of giving an apparent jurisdiction? Or, if the person who had filed the petition as guardian, had not been the infant’s guardian, would the record of such a false suggestion in the petition, be conclusive? We should think not. But, a fortiori, the record of such a proceeding, not only ex parte, but scarcely judicial, is not conclusive proof that a fact did not exist concerning which it is silent.

The decree or order of sale, in such a case, being— not absolutely void, but only irregular & erroneous, its reversal, after a sale, does not affect the purchaser’s title.

The proceedings for sales of infants’ estates, un dertheact of’13, ar o judicial.

Had the record of the petition and sale shown affirmatively, that the infant had acquired his title by devise or other mode of purchase, the guardian and his alienee might have been concluded as to that fact; and the conveyance to Singleton would, in that event, have been, not only apparently, but conclusively, void, for an obvious and irremediable want of authority in the guardian to sell, and of the Circuit Judge to sanction the sale of the land.

But there can be no such estoppel in this case; because the record of the petition and sale does not show, or even intimate, that the land had not come to |he ward by descent.

The difference is between that which the record affirms or imports, and that respecting which it is altogether silent: between what appears, and that which does not appear in it. In such a case, that concerning which such a record is silent may be supplied by extraneous proof; because such evidence could not be inconsistent with any thing either expressed or implied by the higher grade of proof — the record.

If, in this case, Cogar’s title was acquired by descent, his guardian had, in fact, legal authority to sell the land, with the concurrence of the Circuit Judge; and that Judge had, in fact, jurisdiction to authorize the sale: and therefore, the sale and conveyance to Singleton were, in fact, not void.

The statute required that the petition should be filed by the guardian. But suppose that the petition, though filed by the guardian, had omitted to suggest that the person filing it was the guardian; but, nevertheless, the Circuit Judge, knowing that he was the guardian, had therefore authorized him to sell the land. The order for a sale might have been reversed, because the record failed to show that the petitioner was the guardian. But would such a record have been conclusive proof, or even •any evidence at all, that the petition had been filed by a •person who was not guardian? And would the sale and conveyance by the guardian have been necessarily void, merely because the record of the proceeding had not suggested his true character? We think not.

But, in this case, the record of the petition and sale is ■not perfectly silent as to the mode in which the title to • the land had come to the ward. It tends, on its face, rather to the conclusion that the title had been derived ■by descent. And therefore, the .extraneous evidence of dhat fact is only auxiliary, so far as to confirm that which ' the record itself intimates, but may not have sufficiently shown.

Therefore, it does appear to us, that, as in a proceeding conformable with the statute in every other respect nhan the omission to show clearly that the title had descended to the ward, the guardian, under the sanction of the Court, sold land which, in fact, had descended to his ward, and which, therefore, he had a right thus to sell, his sale should not now be deemed void. And it appears to us, also, that, as the whole proceeding was ■ only a statutory mode of conveyance, the fact that nothing was sold but that which the statute authorized the guardian and the Court to sell, may be proved in support of the validity of the sale, when the proof of it will not, in any degree, contradict the record, nor any judicial deduction from it.

If the statute had authorized guardians, without any •other sanction* than that of their own judgment, to sell land which had descended to their wards, a conveyance by a guardian, of his ward’s land, might be deemed, on its face, inoperative, unless it should recite the fact that the land had come by descent. But would such a deed be necessarily and conclusively void? Might it not be valid and effectual, if the land had come by descent ? and might not the vendee prove that fact in an action of ejectment, brought against him by the infant, for the land?

The decree and sale thus not being void, the conveyance should operate, notwithstanding the reversal of the decree, as any other conveyance made of land which had been sold under a judgment or decree which shall-have been afterwards reversed, but was not void. For though the ward was not personally a party, the statute authorized the sale of his land upon the concurrent judgment of his guardian and the Circuit Judge; and if a conveyance, in such a case, should be deemed invalid, merely in consequence of a reversal of the decree directing it, not only would the announcement of such a doctrine deter purchasers at such sales from bidding the value of the land, whereby the interests of infants might be greatly prejudiced by sales under valid and irreversable decrees, but most of the titles which have been supposed to pass under such sales, made over since the enactment of the statute of 1813, might be set aside to the injurious disturbance of society, without corresponding justice to-infants themselves.

The decree for a sale of an infant’s land, in virtue of the statute of 1813, is, in our judgment, judicial, not only because it must be rendered by a Circuit Judge, but because, in rendering it, he exercises judgment concerning matters regulated by law.

It may be but too true that Circuit Judges sometimes may not be as provident in such cases as the very important trust confided to them requires. They have, perhaps, sometimes improperly reposed on the judgment of the guardian, without ascertaining facts sufficient to satisfy themselves, as Judges, that the interest of the wards requires a conversion of their land into money.— Such a course would certainly be a perversion or evasion of the trust confided, and would be not only reprehensible, but almost criminal.

But still it may sometimes be advantageous to infants, to convert their lands into money. And when it shall to do so in any case, the guardian has, and, as we think, should have, power, under the supervision and sanction of a vigilant and enlightened Judge, to make the conversion, for the benefit of his ward, so that it may be made most advantageously, without danger of an avoidance by a plea of infancy.

And it is, therefore, our opinion, that, when a guardian has, in good faith, under the authority and with the approval of the proper Circuit Judge, sold for a'full price and conveyed land which had, in fact, come to his ward by descent, and which, therefore, he had a legal right thus to sell conclusively, the bona fide purchaser should not be disturbed, merely because the petition for a sale did not expressly show that the land had descended, and the decree for a sale had therefore been reversed.

Wherefore it seems to us, that the instruction given by the Circuit Court was erroneous. And therefore the judgment is reversed, and the cause remanded for a new trial.

Petition for a Re-hearing.

October 10.

(By Mr. Owsley and Mr. Morehead.)

The case having been suspended from the last, to the present, term.

The counsel for the defendant in error, very respectfully ask the Court to direct another argument of this cause.

The point to which, in submitting the reasons for a re-hearing, the attention of the Court will be called, is, that the deed from the commissioner to Singleton, conveying the lands in contest, was void and passed no title, having been made in pursuance of a decree of the Circuit Court which was void for want of jurisdiction.

1. When the cause was formerly before this Court, the decree of the Circuit Court was reversed, because, in the opinion of this Court, the petition did not show on its face, that the Circuit Judge had jurisdiction. In other words, such a case was not made out, as was comprehended by the statute authorizing the proceeding.

This Court then said, 2 Dana, 271: “As the statute conferred on the Chancellor only a special authority to decree the sale of real estate which descended to infants, he can have no jurisdiction, unless the estate was acquired by descent; and therefore, as his jurisdiction is special and limited, this decree cannot be sustained, unless the record show the fact which alone can give authority under the statute.”

It does not appear, in this case, that the infants title was acquired by descent, and therefore. the Circuit Court had no jurisdiction-, and consequently the decree directing the sale, must be reversed.”

But inasmuch as the purchaser was not a party to that proceeding, the Court withheld any opinion on the question, whether the proceeding was void or not.

In the case now before us, the purchaser being a party, your honors hold, in the opinion delivered, that the deed to Singleton was not void, and that it was competent for him to prove, by parol, in support of the decree of the Circuit Court directing the sale, that the land was acquired by descent, when, for want of the appearance of that fact in the petition for the sale, the whole proceeding was irregular and coram non judice.

The undersigned may be mistaken, but they believe, that they can maintain both on authority and principle, (1) that if the statute which gave authority for the proceeding was not pursued, as this Court say it was not, the Circuit Court had not only no jurisdiction; but (2) if he had no jurisdiction the whole proceeding was void; and if void, (3) that every act done by virtue of the decree of the Court, was void also, and the purchaser at the sale acquired no title.

This Court having held . that the Chancellor had no jurisdiction of the case, the next question is, was not the whole proceeding void?

In the case of Kemp vs. Kennedy; 1 Peters' Circuit Court Reports, 30, 36, Washington J. said that, “ courts of limitted jurisdiction must not only act within the scope of their authority, but it must appear upon the face of their proceedings that they did so; if this does not appear, all that they do is coram non judice and void.” This is undoubtedly the universal general rule. Let us. see how it has been applied by Courts of the higest authority.

In Wales vs. Willard, 2 Mass. R. 124, Parsons Ch. J. said, “ when the question before a judge of probate, is only as to the manner of exercising his jurisdiction on a subject of which some court of probate has jurisdiction, there, if he mistakes, the means of correcting him is by appeal. But when the question is, whether the court of probate has jurisdiction of the subject or not, he must decide it, but at his own peril. If he errs by assuming a jurisdiction which does not belong to the probate court, his acts are void.” He proceeded to declare, “ that the grant of administration in that case, by the probate judge, was not the erroneous exercise of his judgment, but an assumption of power against law, and the grant was ipso facto a nullity.”

In the case of Sumner vs. Parker, 7 Mass. R. 79, the same doctrine is held: that if a Judge of probate acts within the sphere of his authority, and errs, the decree is voidable; but “if a decree be made upon a subject without the jurisdiction of the Judge, it needs no reversal, but is merely void.” And after an examination of the various statutes which had been made to bear upon the case, the Court concludes: “It does not then appear from the statute, that the Judge had any power whatever to settle the reversion in the widow’s dower on Mrs. Parker.” “ The decree was then upon a subject, not within the jurisdiction of the Judge, and consequently not voidable only, but absolutely void.” The same principles are laid down by the same Court, in Smith vs. Rice, 11 Mass. R. 313.

So in Waterbury vs. Darien, 7 Con. R. 162. A statute of Connecticut, which provided that select men might, at their discretion, lay out such public highways as they should judge needful within their respective towns; further provided that, when any new highway or common road, where the select men of that town neglected or refused to lay out the same, should be wanting, any person might apply to the County Court for relief. The plaintiffs petitioned the County Court. The case came before the Supreme Court, and the language of the Court was — “But it does not appear that application was ever made to the select men to lay off the r’oad in question, or that they neglected or refused to lay out the same. The application to the County Court for want of such an averment, was coram non judice, and therefore void.” “ But it is said,” adds the Court, “ that the Superior Court ought to have remanded the cause to the County Court, to be proceeded with according to law. Such a procedure would have been utterly void; as no Court can take cognizance of a cause, whereof it has no jurisdiction.”

The Court of Appeals of Maryland, in the case of Wickes vs. Caulk, 5 Har. & Johns. 42, are equally as explicit. After stating the general principle, as well established, that the proceedings of any tribunal not having jurisdiction over the subject matter which it propo-poses to decide, are void, and also the principle as equally well established, that the proceedings of tribunals of limited jurisdiction must, on the face of them, state the facts which are necessary to give them jurisdiction; they proceed to say — “ That the proceedings of tribunals having no jurisdiction to decide the case, áre not voidable, but void, is a proposition equally clear, and among other cases was fully established by this Court in the case of Partridge vs. Dorsey's Lessee, December, 1813, where the Court decided that a plaintiff in ejectment, might show, that a decree of the Chancellor ordering lands to be conveyed, in a case where he had no jurisdiction to make such a decree, was void, and he therefore could give no title, though such decree had not been appealed from or reversed. If the proceedings exhibit a case in which the commissioners who did act, had power to act, their award is final until reversed in the manner prescribed by the act; but if, on the contrary, they show themselves that they had no jurisdiction, the whole must be considered as coram non judice, and therefore a nullity.” The same point was decided in the subsequent case of Shains vs. Wilson, 5 Har. & Johns. 130.

The doctrine is equally clear as laid down by Buller, (N. P. 66,) “ Where the Court in which judgment was obtained, had cognizance of the cause, the judgment is only erroneous, but if the Court had no jurisdiction, it is void.”

The Court is also referred to the case of Walker vs. Turner, 9 Wheat. 541; where the main question turned upon the validity of h sheriff’s deed. “ Whether the sheriff’s deed,” say the Court, “conveyed a title to the land in controversy, depends upon the question, whether the sale was made under the judgment of a tribunal having jurisdiction of the cause in which it was rendered.” “ It is obvious that the magistrate had not authority to take cognizance of these cases and others that might be stated; and since his jurisdiction was strictly special and limited, it is essential to the validity of his judgment and of the proceedings under it, that the record should show that he acted upon a case which the law had submitted to his jurisdiction. The order of the County Court, for the sale of the defendant’s land, having been founded upon this judgment, is exposed to the same objection which applies to the judgment itself. If the judgment was void, an execution or order of sale founded upon it, was equally so. This Court must therefore decide, that the deed from the sheriff to Sap-pington, under whom the defendant claims, was utterly void, having been made without any legal authority.”

The cases of The King vs. The inhabitants of Holcott, 5 T. R. 583, and The King vs. The inhabitants of Chilverscoton, 8 T. R. 181, are equally to the point. In the latter case,Lord Kenyon observed, that “It should appear on the face of the order, that the justices who made it had jurisdiction. If they had jurisdiction, every fair presumption will be made that they decided rightly, but if they had not, the proceeding is a nullity”

The counsel have ventured to trouble the Court with a reference to the foregoing cases, for the purpose of showing, that uniformly, and, as far as their researches have extended, without exception, proceedings ' which appeared to be eoram non judice, have been pronounced void. We have found no instance where a judgment or decree has been held to be partly void and partly valid — void for one purpose and valid for another.

This Court say in the opinion delivered — “ The character of the enactment ” (under which the proceeding was had,) “however, requires that it should be strictly pursued, and unless the record of a proceeding under it, shall exhibit every fact prescribed by it, the order for a sale might be prima facie void for want of legal authority .to make it.”

“And hence, as the statute authorizes the sale only of descended estate, and the record of the proceedings in the case, in which the land was sold to Singleton, did not show that the ward’s lands had accrued to him by descent, we set aside the order of sale for an apparent want of jurisdiction.”

With due deference to these suggestions of the Court, the undersigned would respectfully remark, that according to their view of the rule on this subject, the fact that the “ statute is not strictly pursued,” and that “ the record of the proceeding under it does not exhibit every fact prescribed by it,” renders the decree or judgment of the Court, not only prima facie, but absolutely and conclusively, in estimation of law, a nullity. It is either void, or it is not. If it be not void, for what purpose or to what extent is it valid? When this Court decided that, the inferior Court had no jurisdiction of the subject matter of the suit, it was in effect a decision that the decree of that Court was null and void. It was no decree. There was no case before the Court. The decree was not reversed, as we understand it: the order of sale was not set aside for an apparent want of jurisdiction; but because,ipso facto, for the very reason that the statute was not pursued, the Circuit Court had no jurisdiction. The jurisdiction was determined by the statement of fact in the petition; and the important fact which conferred the jurisdiction did not appear. The Court below then had no jurisdiction. This Court eould intend nothing in favor of the decree. Particular jurisdictions are not to be supported by implication or intendment. Sir T. Raym. 75. If the facts appear which give the Court jurisdiction, the proceeding is valid. If not, it is void. These seem to the undersigned to be just views of the doctrine applicable to Courts of special jurisdiction.

But the Court proceed to say—

“ Had that record shown, that the title had been acquired by devise, or other mode of purchase, we should not hesitate to decide that, if the infant be concluded by the act of the guardian, the order of sale and the conveyance to Singleton would have been void; because, as the record could not, if the infant be concluded by it, be contradicted, it would have been conclusive as to the fact that there was no jurisdiction. But as the record was silent concerning the mode of acquiring title, it neither proves, nor intimates, that it was not by descent; and therefore, in our opinion, extraneous proof of the fact, that the title had come to the infant by descent, was not inconsistent with any thing contained in the record, or imported by it.”

If this reasoning be correct, it would result that the validity of the record would be tested, and the jurisdiction of the Court determined, not, as the statute requires, by the facts stated in the petition, but by “ extraneous proof.” Now, the undersigned suppose, that •the question of jurisdiction must turn exclusively upon the facts apparent upon the record itself. The Court can alone look to the record in forming its judgment, whether the proceeding is regular, or irregular — void, or not void. The petitioner must make out his case, and as it is made and presented to the Court, the Court will judge of its power and authority under the statute, and whether the statute has been pursued. If the proceeding, as such, is not conformable to the authority under which the Court acts, no case is made out, and the proceeding is a nullity. When this Court adjudicated, that the Chancellor had no jurisdiction of it, surely the question of the validity, or invalidity, of the decree was settled; surely it could not afterward become a question, in another suit, whether sufficient might not have been stated, or whether facts, susceptible of proof, did not exist in the country, to have given jurisdiction; surely this Court will not now recognize the admissibility of collateral proof, to uphold and confirm a jurisdiction, against which, in a direct proceeding, involving the question of jurisdiction, they had pronounced judgment. That which is void, is not susceptible of confirmation. If the decree was void, for lack of authority on the part of the Chancellor to make it, the purchase of Singleton under it, was void also. Can it then be made valid— can it be resuscitated — by extraneous proof of facts which, to give the Court jurisdiction, ought to have been stated by the party to the orginal proceeding; or by proof of a fact, which existed, but was not alleged?' We think not. Could'the decree be made valid by such proof? If it could not, no more can a conveyance which is founded on it, and must partake of its character, be so supported.

The Court seem to rely materially on the circumstance, that the record is silent concerning the mode of acquiring title; and from that, deduce the conclusion that Singleton had a right to introduce extraneous proof of the fact, that Cogar derived title by descent; when, in the opinion of the counsel, the very silence of the record, being conclusive against the authority of the Circuit Court, is equally conclusive of the rights of the-parties under it. The Court say—

“ If, as now appears, the title was acquired by descent,. the Court which ordered the sale had, in fact, jurisdic- ‘ tion; or in other words, the guardian had statutory authority, with the concurrence of the Court, to sell and convey the land for his ward’s benefit; and therefore-the sale and conveyance were, in fact, not void.”

“ The difference is between that which a record affirms or imports, and that respecting which it is perfectly silent — between a fact recorded, and a blank in a record — between that which appears and that which does not. The first may be controverted, but the last may be supplied, because there is no estoppel.”

The question never was, and never could be, may it please the Court, whether “the Court had, in fact, jurisdiction;” nor whether “the sale and conveyance were, in fact, void.” The question was solely one of law. Comparing the facts stated in the proceeding, with what the statute required, was it, in judgment of law, a valid proceeding! In judgment of law, did the Circuit Court have jurisdiction? Did the record exhibit, what was indispensable to give jurisdiction? If not, the case was coram non judice and void. The authority, authorizing the proceeding was not pursued, and it was as if the Court had acted without authority.

In a proceeding like this, before a Court having special jurisdiction of the subject matter, the veryjfhci that the record is silent, determines the point of jurisdiction. We have found no exception to the rule. The record must speak. The authority of the Court must be declared upon its face. In Stanyon vs. Davis, 6 Mod. 223, “It was laid down for a rule, and agreed unto by the Court, that whatever is essentially necessary to maintain an action, if the action be brought in the inferior Court, the matter must be averred to have been within their jurisdiction, otherwise they have no jurisdiction; for whatever is not averred to be within their jurisdiction shall be intended out of it.” So in Peacock vs. Bell, 1 Saund. 74— “ nothing shall be intended to be within the jurisdiction of an inferior Court, but that which is so expressly alleged

What “now appear-s,” is not the subject for consideration. The subject is, what did appear on the face óf the record, on which this Court, in the former case, held that the Circuit Court had no jurisdiction. The want of jurisdiction avoided the decree and all the proceedings under it.

There is one point which was made in the argument, which the opinion has not adverted to. The statute required that the land should be sold on a credit of six months; and the sale was mad e/or cash in hand. In this particular it is insisted that the statute was not pursued, and that the sale was void.

On the whole the counsel ask the Court to re-hear the cause. They believe that a re-argument is called for by the importance of the question decided, and no less by the interest which the defendant has in the result of the controversy. In every point of view, he has already been greatly a loser by the proceeding of his guardian. He has received no benefit under it, and the hardship of the case is enhanced by the consideration, that at the time the suit for the sale of the land was instituted, he was an infant, and incapable, in the estimation of the law, of protecting his own interests.

W. Owsley,

J. T. Mor ¿head,

for defendant.

RESPONSE TO THE PETITION FOR A Re-HEARING.

(By Chief Justice Robertson.)

Decembers.

It is evident from the context of the opinion reversing the order for the sale of the land, that this Court, in suggesting that the Circuit Judge 11 had no jurisdiction,” meant only that the record did not exhibit all the facts necessary to give him jurisdiction. The reasons given in the opinion might be sufficient to show that this was what was intended by the Court; but, moreover, the same deduction was fortified by the fact that, though we had been urged in argument to decide that the sale was void, we intimated no opinion on that subject. Why? Certainly, not merely because Singleton was not a party, but chiefly because, in our opinion, though the record did not show that the Circuit Judge had jurisdiction, it did not prove that he had not jurisdiction. If we had considered such a record in such a case conclusive as to the question of jurisdiction, surely it would not have been improper to have so decided, even though Singleton was not a party; for a fact concluded by the record could not have been affected by his being a party, or not being a party.

The cases cited in the petition, so far as we have been able to examine them, recognize one of the plainest and most familiar axioms of the law; that is, that a judgment or decree of a Court having no authority to adjudicate on the subject matter, is utterly void. This we conceded in the opinion we are now urged to reconsider; and we now concede, also, that, in revising such a judgment or decree, this Court would have to decide the question of jurisdiction upon the record alone.

But does it necessarily follow that, in such a case as this, or in all cases, however the question of jurisdiction may be presented, the silence of the record of the judgment or decree as to a fact essential to the jurisdiction, shall be conclusive proof that the judgment or decree is void ?

A County Court of this State has no testamentary jurisdiction unless the decedent either lived in the county at his death or had some estate in it. But if a record of the probate of his will should be silent as to both of those facts, would the probate be conclusively void9

Other and similar cases and facts are suggested in the opinion. In fine, this is a case sui generis, and none of the authorities or analagies relied on in the petition, are, in our judgment, decisively appplicable to it.

The reasons assigned in the opinion, for the conclusion we therein adopted, still appear to us satisfactory —even were it admitted that, in an ordinary judicial case upon record, they might not be in every respect applicable. We therefore do not feel inclined to grant a re-hearing.  