
    John Benson and others v. Jonathan Cilley and others.
    In a proceeding, on the petition of an administrator, to subject lands of a decedent to the payment of debts, under the statute of 1831, where a guardian ad liiem was appointed for the infant defendants, and, on their behalf, acknowl- . edged service of process for their appearance — Held:
    That in so far as the proceeding is of an adversary character, that character was given it by the act of 1821, defining the duties of executors and administrators.
    The construction heretofore given to that act, by repeated decisions of this court, having become a rule of property, should now be followed.
    It must, therefore, be held, that the want of personal service of a subpoma upon the infant defendants, does not, under the act of 1831, affect the jurisdiction of the court, or render void the order of sale.
    In Chancery. Reserved in tbe District Court of Hamilton county.
    Tbe bill is filed by tbe beirs at law of Matthew Benson, deceased, against tbe beirs at law of William Miller, deceased, and Rensselaer W. Lee and Jonathan Cilley, to redeem certain mortgaged premises in Cincinnati, in tbe possession of Cilley.
    Tbe material facts are as follows:
    On tbe 22d day of November, 1831, Matthew Benson gave a mortgage on tbe premises in controversy to William Miller, to secure tbe payment to him of a debt of three thousand dollars, three years from date.
    During tbe year 1832 Matthew Benson died, in possession of tbe premises, leaving tbe complainants bis beirs at law.
    On tbe 16th of August, 1832, Samuel Lewis, as administrator of Matthew Benson, filed a petition in tbe court of common pleas, stating that tbe personal property of tbe estate was but $427; that $600 bad been allowed to tbe widow for her years support; that tbe deceased owed Miller tbe $3,000, and also other debts specified; and prayed for a sale of tbe property.
    This administrator’s petition makes Mary Benson, tbe widow, and her six children, tbe present complainants, defendants. It states that the children are minors, and prays for a subpoena against all.
    A subpoena was accordingly issued on the 16th day of August, 1832, to the sheriff, commanding him “to summon Mary Benson, widow, and John Benson, Martin Benson, Margaret Benson, James Benson, G-eorge Benson, and Charles Benson, children and heirs of Matthew Benson, deceased, by Nathaniel Wright, their guardian, to appear before the judge of the court of common pleas at Cincinnati, forthwith, to answer a petition exhibited against them by Samuel Lewis, administrator of Matthew Benson, deceased, for sale of certain real estate, and this they shall in no wise omit,” etc.
    On said writ was the following indorsement of service:
    “I hereby acknowledge service of the within summons for all the defendants, as guardian ad litem, for the minors, and as attorney for the. widow. August 16th, 1832. Nathaniel Wright, guardián ad litem to John Benson, Martin Benson, Margaret Benson, J ames Benson, George Benson and Charles Benson, minor heirs aforesaid.”
    After these proceedings an order of sale was entered, and the property sold to Miller, the mortgagee. The sale was confirmed and deed made. Miller conveyed the property to Lee, and Lee to Cilley.
    On the 9th of January, 1851, the complainants filed their bill setting up the mortgage given by their father to Miller, alleging that Miller took possession under it, and ask to redeem, and for an account of rents and profits, etc.
    The defendants set up as a defense, the record of the administrator’s sale.
    The complainants claim that this sale is void, for the reason that they, the infant heirs of Matthew Benson, were never before the court, and that the court had no jurisdiction over them.
    
      M. W. Oliver, for complainants:
    As it abundantly appears, on the face of the record offered by respondents, that these complainants were not served with process, as required by the act of 1831, it follows that these heirs of Matthew Benson were not before the court — had no day in court.
    It was necessary that the heirs of Benson should be brought into court, in the manner required by the act of 1831, before the court acquired jurisdiction to order the administrator to sell their interest in the land sought to be sold. Or, in other words, the court had not so far jurisdiction, under the act of 1831, by the mere filing of a petition praying a sale, as to enable it to render a decree, binding the interests of the heirs, without bringing them before the court.
    From a review of the cases arising under the act of 1824, viz : Ewing et al v. Higby, 7 Ohio Rep. 198; Ewing v. Hollister, 7 Ohio Rep., pt. 2, 138; Robb v. Lessee of Erwin, 15 Ohio Rep. 689; Snevely and wife v. Lowe, 18 Ohio Rep. 368; and Sheldon v. Newton, 3 Ohio St. Rep. 494, it may be clearly seen that while it has been uniformly held under that act, that personal service on the infant heirs was not necessary to give the court jurisdiction, but sendee on the general guardian, or guardian ad litem, was sufficient— yet these decisions have all been expressly placed on the ground, that that statute did not direct the manner of service, and, therefore, that the manner of service was left to the sound discretion of the court, and if they, in the exercise of that discretion, adopted a mode of notifying the heirs in itself reasonable and proper, and that did not defeat the intention of the act, in such case the requirements of the statute were complied with. And even under this act of 1824; the court, in the last decided ease, derive great aid and comfort from the application of the maxim, stare decisis.
    
    The case of Adams v. Jeffries, 12 Ohio Rep. 253, was a case, and the first reported case, arising under the act of 1831, and is directly in point to show that the proceedings now sought to be set up as a bar to the relief we ask, aré absolutely void, and not simply voidable; that the provisions of this act not having been complied with, as to the matter of notice, the court had no jurisdiction.
    This decision is supported by every case, since decided by that court, having any bearing on the point under consideration. See Daniels v. Stevens, 19 Ohio Rep. 238; 15 Ohio Rep. 700, 701; Sturges v. Longworth, 1 Ohio St. Rep. 553, 554.
    The case of Moore v. Starks, 1 Ohio St. Rep. 369, is in point, and is conclusive as to what service upon an infant is requisite in an ordinary chancery proceeding under the statute.
    The proposition is not true, that in proceedings that are strictly in rem, the court has jurisdiction without notice, actual or implied, to the parties in interest. I claim—
    1st. That by the general law of the land, “ before the rights of any individual be bound by a judicial sentence, he shall have notice, either actual or implied, of the proceedings against him or his estate;” and this equally, whether the proceedings be in rem or in personam. The Mary, 9 Cranch 144; Hollingsworth v. Barbour et al., 4 Peters 467; Bradstreet et al v. Neptune Ins. Co., 3 Sumner 600; Boswell’s lessee v. Otis et al., 9 How. 350; Borden v. Fitch, 15 Johns. Rep. 141; Kinderhook v. Claw, 15 Ib. 538; Mills v. Martin, 19 Johns. Rep. 33; Corliss v. Corliss, 8 Verm. Rep. 389; Wright v. Douglass, 3 Barb. 555, 574-5; Woodruff v. Taylor, 20 Verm. Rep. 75; Bowler v. Eldridge, 18 Conn. Rep. 10; 5 Geo. Rep. 202.
    2d. That when the legislature prescribes the way in which this notice shall be given, no other mode of giving notice can be adopted by the practice of the courts; but the legislative mode must be substantially followed. Moore v. Staep, 1 Ohio St. Rep. 369.
    3d. That if in any statutory proceedings, the - court acquires jurisdiction before notice, the reason of this is to be found, not in the fact that the proceeding is in rem, but in this, that the legislature, in establishing the proceeding, has expressly provided for the attaching of jurisdiction before the nptice is to be given.
    4th. That in every statutory judicial proceeding, where notice to the party to be bound is expressly required to be given, the giving of the required notice is essential to the jurisdiction of the court, unless it shall affirmatively appear that such was not the intention of the legislature. 1 Hill’s Rep. 131; 1 Brock. Rep. 324; 1 Barb. 286-90; 5 Geo. Rep. 202.
    5th. That in the proceedings of an administrator to obtain an order for the sale of real estate, under the act of 1831, the statutory notice is essential to the jurisdiction of the court to bind the heir; for it nowhere, in that act, affirmatively appears that the court has any power to perform any judicial act prior to the giving of the notice required.
    But are these proceedings of administrators, under the act of 1831, properly pi’oceedings in rem ?
    
    The true view of the matter is this: Prior to the act of February 11, 1824, this proceeding, though not strictly in rem, was strictly ex parte. By that act it was made to be adversary. But as the statute did not point out the manner in which the adversary should be brought into court, and jurisdiction over his person acquired, it was left to the practice of the court; and hence, if what the courts might deem a reasonable notice was given, it was sufficient. By the act of 1831 the proceeding is not only adversary, but the mode of bringing the adversary defendant into court is prescribed; and this being so, no other mode can be resorted to, but the statutory mode must be pursued; and when this was not done, the court acquired no jurisdiction to bind the heir. Moore v. Starks, 1 Ohio St. Rep. 369.
    N. T>. J. 11. Handy, also for complainants:
    Though the proceeding.of the administrator to sell an intestate’s real estate, to meet the debts, is not strictly a chancery proceeding, yet the act of 1831, giving power to administrators to sell, expressly points out the method in which alone they can exercise this power. Eor, be it remembered here, that administrators at common law had no power whatever over real estate.
    Now this act of 1831 explicitly commands, that the infant heirs shall be made parties in the same method as it is required to be done in chancery. How that is done the case of Moore v. Starks, 1 Ohio St. Rep. 369, is clear and conclusive. All proceeding by a court which has not legally obtained jurisdiction of the subject matter or the parties, is absolutely void and null, and can be used for no purpose whatever. Lessee of Adams v. Jeffries, 12 Ohio Rep. 253; Borden v. Fitch, 15 Johns. Rep. 121; Mills v. Martin, 19 Johns. Rep. 33; Latham v. Edgarton, 9 Cow. 227; Sumner v. Parker, 7 Mass. Rep. 79; Smith v. Rice, 11 Mass. Rep. 507; Moore v. Starks, 1 Ohio St. Rep. 369; Daniels v. Stevens’s Lessee, 19 Ohio Rep. 238; Parker v. Miller, 9 Ohio Rep. 110; Thatcher v. Powell, 6 Wheat. Rep. 119, When courts acquire an authority, not after the common law, by statutory provisions, over property whose owners are required to be before them as adversaries, they act as tribunals of special and limited jurisdiction. Burd v. Susquehanna Bridge and Bank Co., 6 Harr. & John. Rep. 130; Thatcher v. Powell, 6 Wheat. Rep. 119; Denning v. Corwin et al., 11 Wend. 647; Smith v. Fowle et al., 12 Wend. 9; 7 Mass. Rep. 79; 11 Mass. Rep. 507. It is necessary that such tribunals show they act within the scope of their power. Lessee of Adams v. Jeffries, 12 Ohio Rep. 272.
    Nor will we be excluded from showing that jurisdiction was never acquired by the court. Slocum v. Wheeler, 1 Conn. Rep. 429; Mills v. Martin, 19 Johns. 33; Hyde v. Stone, 9 Conn. 230; Parker v. Miller, 9 Ohio Rep. 116.
    We insist, therefore, that as these complainants never were before the court, on the application of the administrator to sell their real estate, the whole proceeding, as to them, is null and void. That, therefore, the record sought to be offered in this ease, is incompetent as against them, and should be excluded.
    
      Worthington § Matthews, for Cilley, argued—
    That the proceeding of an administrator to sell the real estate of his decedent, under the act of 1831, as under previous statutes on the same subject, is a proceeding in rem, and not in personam; that the jurisdiction of the court attaches, upon the filing of the petition setting forth the facts which authorize a sale, based upon the circumstance that the property is subject to its process; that although the statutes of 1824 and 1831, require the heir or other person owning the inheritance, to be made party defendant, the giving of notice, though prescribed by the law, is not necessary to the jurisdiction; and that, therefore, improper service, or the want of service, while it would be an irregularity and an error, rendering the proceedings liable to reversal, in a direct proceeding instituted for that purpose, does not oust the jurisdiction of the court, and make its order and the sale null and void.
    That this proposition is fully supported as to proceedings governed by the act of 1824, by the cases of Ewing’s Lessee v. Higby 7 Ohio Rep. 198, part 1; Ewing v. Hollister, 7 Ohio Rep. 138, part 2; Robb v. Irwin’s Lessee, 15 Ohio Rep. 689; Snevely v. Lowe, 18 Ohio Rep. 368, and more particularly by the recent case of Sheldon v. Newton, 3 Ohio St. Rep. 496.
    . That in respect to the point now in controversy, the statutes of 1824 and 1831 were, in substance, alike, the substance of each being, that the heir or other owner should be made a party. They differ only in matter of detail and direction.
    
      Edward Mills, for defendant Este and heirs of Miller, argued—
    1. That courts of common pleas, in the exercise of powers conferred on them by statute, to sell the lands of a decedent, on the petition of the administrator, are to be considered as courts of general, and not of special and limited jurisdiction; and that all rules of construction and presumptions arising in favor of courts of general jurisdiction, apply equally to the records of such proceedings. Lessee of Goforth v. Longworth, 4 Ohio Rep. 129; Ludlow’s heirs v. Wade, 5 Ohio Rep. 494; Ewing’s Lessee v. Higby, 7 Ohio Rep. 200; Robb v. Irwin’s Lessee, 15 Ohio Rep. 697; Snevcly and wife v. Lowe, 18 Ohio Rep. 368; Sheldon’s Lessee v. Newton, 3 Ohio St. Rep. 496.
    The same rules have uniformly, in this state, been applied to the records of sales made by guardians — of sales made in proceedings in partition, and sales made in attachment. Lessee of Glover v. Ruffin, 6 Ohio Rep. 255; Gaudy’s Lessee v. Shank, 8 Ohio Rep. 415; Lessee of Stall v. Macallester, 9 Ohio Rep. 19; Lessee of Maxom, v. Sawyer, 12 Ohio Rep. 195; Smith v. Pratt et al., 13 Ohio Rep. 550; Lessee of Payne v. Mooreland, 15 Ohio Rep. 435; Lessee of Cochran’s heirs v. Loring, 17 Ohio Rep. 430.
    2. "When the records of a court of general jurisdiction do not show affirmatively, that the defendants named in the proceedings were not served, the law, in a collateral proceeding, will presume that they were served; and this presumption can only be overcome by the introduction of positive testimony that they were not served. Wayre v. Zane, 3 Ohio Rep. 305; Lessee of Ewing v. Higby, 7 Ohio Rep., pt. 1, 198; Robb v. Irwin’s Lessee, 15 Ohio Rep. 699; Lessee of Morgan v. Burnett, 18 Ohio Rep. 546; Reynolds v. Stansberry & Burch, 20 Ohio Rep. 349; Lessee of Moore v. Starks, 1 Ohio St. Rep. 369. See also Carrington v. Brent, 4 McLean 174; Bank United States v. Cochran, 9 Dana 395, and 4 Dana 435; Horner v. Doe, ex dem. Indiana, 1 Carter 130, and a large number of cases there collected.
    3. That the record of a court of general jurisdiction being silent as to who moved the court to appoint a guardian ad litem, this court, in a collateral proceeding, will presume that the minors were personally present, and that the appointment was made at their request. Thompson v. Doe, ex dem. Hare 8, Blackf. 336; 1 Carter 130.
    , 4. That if the record had shown that the court had appointed the guardian ad litem on the motion of the plaintiff, and even had the proceedings been in chancery, yet that under the chancery practice, as it existed in Ohio, an appearance of a guardian ad litem, without service on the infants, would only render the proceedings voidable, not void. Massie’s heirs v. Donaldson, 8 Ohio Rep. 377.
    5. That proceedings by an administrator before a court of common pleas to sell land of a decedent, under the act of 1831, are in rem; and that the court had jurisdiction of the subject matter as soon as the petition containing the proper averments was filed, and no irregularity in the service of process, and no want of service can be taken advantage of in a collateral proceeding. Ludlow’s heirs v. Johnson, 3 Ohio Rep. 553; Ewing’s Lessee v. Hollister, 7 Ohio Rep., pt. 2, p. 141; Robb v. Irwin’s Lessee, 15 Ohio Rep. 689; Snevely and wife v. Lowe, 18 Ohio Rep. 368; Moore’s Lessee v. Starks, 1 Ohio St. Rep. 369; Sheldon’s Lessee v. Newton, 3 Ohio St. Rep. 494.
    
      Haines, Todd $ Lytle, for defendants Lee and Cilley, argued—
    1. That the record of the administrator’s sale was a valid record when viewed as a chancery proceeding. The service upon the guardian ad litem was in accordance with the usages of courts of equity. Thompson v. Jones, 8 Ves. 141; Baker v. Holmes, 1 Dickens 18; Smith v. Marshall, 1 Atk. 70; Kirwan v. Kirwan, 1 Hogan 264. That it nowhere appears in this record, that these infants were not served with process; and all things must be presumed to have been done rightly by a court of general jurisdiction. Sheldon’s Lessee v. Newton, 3 Ohio St. Rep. 496; Lessee of Nelson v. Moon, 3 McLean 321.
    2. That before the statute of 1824, these proceedings to sell a decedent’s land, were ex parte and in rem; that after the passage of that act, though no longer entirely ex parte, they were still in rem. That if the proceedings were in rem, under the act of 1824, they were equally so under that of 1831. For the provision giving the court jurisdiction is entirely similar to that of 1824.
   Scott, J.

The defendants in this case interpose, as a bar to the relief sought by the complainants, the proceedings of the court of common pleas of Hamilton county, based upon the petition of the administrator of Matthew Benson, the father of complainants, praying for the sale of the real estate in controversy, in order to pay debts, and resulting in a sale to Miller, the original mortgagee, under whom the other defendants claim. This petition was filed in 1832, and the proceedings under it were, therefore, governed by the act of 1831, “defining the duties of executors and administrators.” 3 Chase 1782. The 31st section of that act provides:

“That when the executor or administrator shall apply to the court, under this act, for authority to sell the real estate of his testator or intestate, the application shall be by petition, to which the widow, (if any there be,) and the lawful heir or heirs, or the person or persons, having the next estate of inheritance, of the testator, shall be made defendant thereto, and the defendants shall be served with process, or otherwise notified of the pendency of such petition, in the manner prescribed in the act directing the mode of proceeding in chancery,” etc.

As to tbe mode of serving process, the chancery practice act, here referred to, provides:

“That every subpoena, or process for appearance, shall be served on the person to whom it is issued, or a copy thereof left at his dwelling house or usual place of abode.”

The record, which is offered as a bar in this case, shows affirmatively, that the process for the appearance of the infant defendants was served upon their guardian ad litem, who, in that capacity, acknowledged service for them. And, it being thus shown how they were brought into court, there is no room for the presumption that they were otherwise served with process. Hence the question arises whether, under the act of 1881, the court, without service of process upon the infant defendants personally, or by copy, could acquire jurisdiction of the ease. Eor if the court acted without jurisdiction, the whole proceeding was a nullity; but if jurisdiction was acquired, the order of sale was made in the exercise of a power conferred by law, and the proceedings cannot be collaterally impeached.

In determining this question, it is proper to ascertain, as well as we can, how far it is affected by the previous decisions of this court and its predecessor, and to what extent it still remains an open one.

Prior to 1824, the proceedings by executors and administrators, to subject the real estate of a decedent to the payment of debts, were wholly ex parte. The jurisdiction of the court attached upon the filing of the proper petition. The proceeding was strictly in rem, and no notice was required to be given to the heirs, or other interested parties.

The act of 1824 made no substantial change in the proceedings, except by providing that “ the lawful heir, or the person having the next estate of inheritance of the testator or intestate,” should be made defendant to the petition. In considering the effect of this change in the law, it was said by Judge Hitchcock, delivering the opinion of the court in Robb v. Lessee of Irwin, 15 Ohio Rep. 698 : “ It is apparent that this law leaves the subject-matter of the sale of a decedent’s land, just where.it was before — within the jurisdiction of the court of common pleas, as a court of probate. If before, the proceedings' were in rem, they are still so; for although the law requires the heir to be made a defendant, still there can be no action as against him — no judgment, no decree. The only order which can be made by the court, operates upon the land alone. It may be decreed to be sold.” And in Sheldon v. Newton, 3 Ohio St. Rep. 494, Judge Ranney, with clearness and force, expresses the same opinion, that the proceeding authorized by the act of 1824 was essentially a proceeding in rem, and that an omission to give notice to the heir does not affect the jurisdiction of the court, but goes only to the regularity of the proceeding. These opinions, though they are not conclusive authority, are at least entitled to respect.

In Snevely v. Lowe, 18 Ohio Rep. 368, one of the minor heirs was not even named in the petition, nor elsewhere throughout the proceeding. Two other minor heirs were named in the petition. A guardian ad litem was appointed for the minor heirs of the deceased, without naming any of them; and this guardian, as such, acknowledged an appearance. It was held that the order of sale was not void. "Unless the proceeding be regarded as in rem, it would be difficult, if not impossible, to sustain this decision.

The requirement of notice to the heir does not necessarily imply that such notice is a prerequisite to the acquiring of jurisdiction. On the contrary, it was held in Paine's Lessee v. Mooreland, 15 Ohio Rep. 435, that proceedings in attachment were in rem, and that the seizure of the property attached, gave jurisdiction to the court prior to, and independent of, the notice which the statute imperatively required. And yet, in the former mode of proceeding by attachment, the plaintiff, if successful, recovered a judgment in personam upon a claim which, prior to the seizure and judgment, was no lien upon the property attached.

"Upon whatever grounds the decisions may have been placed, it has uniformly been held that, under the law of 1824, actual notice to the infant heirs was not essential to the jurisdiction of the court. Ewing's Lessee v. Higby, 7 Ohio Rep. (pt. 1) 198; Ewing v. Hollister, Ib. (pt. 2) 138; Robb v. Irwin, 15 Ohio Rep. 689; Lewis v. Lewis’s Adm'r, Ib. 715; Snevely v. Lowe, 18 Ohio Rep. 368; Sheldon’s Lessee v. Newton, 3 Ohio St. Rep. 494. The uniformity of this line of decision was distinctly admitted, and its propriety left unquestioned, in the case of Moore v. Starks, 1 Ohio St. Rep. 369, where the court was careful to distinguish between this class of cases and the proceeding in chancery then under consideration. Yet the act of 1824 directed that the heir should be made a defendant to the petition, and this could, in no fair and substantial sense, be done without notice to him. Indeed, it has never been doubted, that the intention of the law was to give the defendant notice, and afford him a day in court.

These decisions can all be supported, on the ground that the proceedings were still so far in rem, that the want of notice did not affect the jurisdiction of the court; some of them could scarcely be otherwise maintained, upon principle.

But the intrinsic character and nature of the proceeding remained unaffected by the act of 1831. It required notice to the heir, but so did the act of 1824. In addition to this, it prescribed the mode in which the notice should be given; and this was the only change. But the mode of giving notice could not possibly affect the jurisdiction, unless the notice itself were an essential prerequisite; and it is certain that neither of these acts expressly made it so. It is true, that in Lessee of Adams v. Jeffries, 12 Ohio Rep. 253, which was the case of a sale under the act of 1831, it was held that, without notice to the heirs, the whole proceedings were void. But this decision was not based on any difference between the requirements of the act of 1824 and that of 1831. On the contrary, the reasoning and principles upon which it proceeds, are equally applicable to both acts, and were, in fact, so applied by the court. That case, therefore, stands alone, in conflict with both prior and subsequent decisions. But the decision itself might be affirmed without affecting the present case; for the record, in that case, commenced with the order of sale, without showing any petition filed, or other proceedings anterior to the order.

If these were even to be regarded as proceedings in chancery, it has been more than doubted by some of the ablest jurists of whom this state can boast, whether infants may not be made parties to a suit in chancery, so as to be bound by a decree, without personal service, merely hy the appointment and appearance of a guardian ad litem. Judge Hitchcock, in Robb v. Irwin’s Lessee, said: “ I apprehend it will he found, upon examination, that decrees entered under such circumstances are generally, if not universally, holden to be voidable, not void. Such, I have no doubt, is the weight of authority.” And so it was held in Lessee of Nelson v. Moon, 3 McLean’s Rep. 321, decided in this state in 1843. In England, courts of chancery have always exercised a discretion in ordering substituted service, according to the exigencies of the case, upon infant defendants. Smith v. Marshall, 2 Atk. 70; Thompson v. Jones, 8 Ves. 141; Baker v. Holmes, 1 Dickens 18. The chancery practice act of 1831, gave the courts “ power to make rules and regulations for the government of proceedings had before them;” and provided that they should, “ in all things, be governed by the known usages of courts of equity, except where it may be otherwise provided by law.” The act authorized constructive notice by publication, in the case of non-residents, and no one has ever doubted that, under it, service of process might be waived, or an appearance be voluntarily entered. The construction given to this act by the courts, as shown by the early practice under it, prevalent throughout the state, is entitled to consideration and respect. What that practice was is shown by the statement of Judge Grimke, in 1838, in the case of Massie’s heirs v. Donaldson, 8 Ohio Rep. 381. He says: “ In Ohio, it has not been the general practice to make service on the infants. A very loose mode of doing business has universally prevailed. This is greatly to be regretted, since as much mischief might be created by returning to the old and regular practice, as has been occasioned by the original departure from it. The practice of every court may be said, sometimes, to constitute the law of the court; and perhaps even this practice may be entitled to respect, if it is the creature of inveterate usage.”

Rut the petition of an administrator for the sale of land is not a proceeding in chancery; nor have the rules governing courts of chancery ever been rigidly applied to such a proceeding, under the law of 1824. The practice of the courts was known not to be uniform throughout the state, and public policy required that this variant practice should be regarded with indulgence. The interests of heirs required that all reasonable security should be afforded to titles acquired by administrators’ sales, in order that the property might sell for its value. Looking, then, to the character of the proceeding, as at least quasi in rem, to the different modes of practice adopted under the statute regulating it, and governed, doubtless, in a high degree, by considerations of public policy, it has been held, as we have seen, from time to time, both by this court and its predecessor, that irregularities in the mode of effecting the appearance of infant defendants, and even the entire want of notice to them, would not affect the jurisdiction of the court in the case, though it might render the proceedings voidable. Such, at least, are the decisions under the law of 1824, which, as we have seen, required notice, equally with the law of 1831. The proceeding now under consideration was had soon after the statute of 1831 took effect, and before any uniformity of practice had been secured. The statute of 1840, for the first time, made the proof of proper notice to the defendants, a condition precedent to any action of the court in such a case, and prohibited the waiver of notice by a guardian ad litem in behalf of his wards. The statute having been, until that time, silent on the subject, a previous practice to the contrary, in these particulars, would seem to have been thereby recognized and prohibited in the future. Personal service of process was thus made a condition indispensable to the exercise of jurisdiction, and the practice was made uniform throughout the state.

In so far as the proceeding is of an adversary character, that character was given to it, as we have said, by the act of 1824, not by that of 1831. But this court has hitherto refused to say that, under the former act, the want of notice rendered the whole proceeding void. We are now asked to say so. Whatever our opinion might be, if the question were res integra, and admitting, as we do, the just force of the arguments presented by counsel for complainants, yet we must bear in mind, that nearly twenty years have passed since the law of 1831 was superseded. The opinions of this court, and the decisions referred to, have justly been regarded as a rule of property during that time. To disregard those opinions, and overrule the decisions, on the faith of which men have so long acted throughout the state, would produce incalculable hardships. Wholly to disregard such consequences, where the protection of substantial rights demands no such boldness, would evince, on the part of the court, recklessness rather than courage.

Do the facts of this case indicate that substantial wrong and injustice have been done to these complainants ? ' The record and evidence on file show that their father died in 1831, leaving six children, of whom the eldest was under ten years of age. The personal property of his estate amounted to $427, and the sum of $600 was set olf for a years support of the widow and these children. The real estate now in controversy, was under mortgage to secure a debt of $3,000. To discharge this and other liabilities, and provide for the year’s support of the widow and these complainants, her then infant children, it was, of course, necessary to sell real estate. A petition was filed, for that purpose, in 1832, by the administrator. The complainants were all named in it, as the minor children and heirs of the deceased; and for the protection of their rights the court appointed a reputable guardian ad litem,the chosen and trusted attorney of their mother, who was doubtless nominated by her for that purpose. Upon consultation with her, and at her instance, he acknowledged service of a subpcena on behalf of the children. The proper showing having been made, the court ordered a sale. The property was appraised, advertised, and sold; and the whole proceedings were examined, approved, and confirmed by the court. The proceeds of the sale were applied to the support and maintenance of the complainants, and the discharge of the debts, which were a lien upon the property paramount to any title of theirs. All this seems to have been done fairly, and was demanded by the necessities and interests of these complainants. More than a quarter of a century has since elapsed, and this property has largely increased in value; and we are now asked to divest the titles of bona fide purchasers, and declare all these proceedings void, because that which, under the circumstances, could have been but a formal ceremony, was dispensed with. Such a claim is surely strictissimi juris, and can require, at our hands, no deviation from precedent. We think the bill must be dismissed.

• Swan, C. J., and Brinkerhoee, Sutlife and Peck, JJ., concurred.  