
    The President, Directors, and Company of the Planters Bank of the State of Mississippi, use of Hiram G. Runnels vs. Polly W. Johnson et al.
    A literal compliance with the statute, pointing out the mode by which an ad-ministrat n may sell the realty of his intestate, is necessary in order to enable the court to render a valid judgment for the sale of the land; and if the statute has not been strictly complied with, the order of sale and the sale are void ; and the records of the probate court must show affirmatively that the statute has been in all respects complied with.
    The recital in the records of the probate court, on an application for sale of a deceased person’s realty, that “it appearing to the satisfaction of the court that publication has been made in pursuance of an order,” &e., even if evidence that publication had been made, would not be evidence that citation had been posted up at three public places; and the statute requires both modes of notice.
    Where realty of an intestate, who has but a bond for title when the purchase-money is paid, and who has paid but a part thereof, is sold by an administrator without giving the requisite notice, and the purchaser has executed his note, payable to the person to whom the residue of the purchase-money is due, in payment for the price bid at the sale, he may notwithstanding avoid the note, as the sale was absolutely void, and did not divest the intestate’s right.
    In error from the circuit court of Yazoo county; Hon. Morgan L. Fitch, judge.
    The President, Directors, and Company of the Planters Bank of the State of Mississippi, for the use of Hiram G. Runnels sued Polly W. Johnson and Richard M. Johnson, Jr. upon a note payable on its face to the bank, for f 8,413 The defendants plead non assumpsit; and on the trial proved that the note was executed for the purchase-money of a tract of land lying in Yazoo county, sold by order of the probate court of Hinds county at public sale by Cary D. Runnels, as the administratrix of the estate of Howell W. Runnels, deceased, to whose estate. it belonged. They read a copy of the records of the proceedings before the probate court of Hinds, by which the sale was ordered, from which it appeared that at the October term, 1836, the administratrix had applied for an order of sale of the realty to pay the debts of her intestate, as the personalty was not sufficient for that purpose; the court ordered citation and publication for thirty days in the “Raymond Times.”
    At the December term, 1836, the following order was made : “ It appearing to the satisfaction of the court that publication having been made in pursuance of an order made at the October term last of this court, citing all persons interested in the lands, tenements, &c. of H. W. Runnels, deceased, to appear and show cause at the December term, 1836, of this court, why an order should not be made for the sale of so much of the lands, tenements, and hereditaments of said deceased that will be sufficient to pay his debts; no one now appearing, it is ordered by this court that the administratrix be authorized to sell the following described lands,” &c.
    At the October term, 1838, another application to sell the unsold lands was made, and at the December term of that year allowed. No other recitals touching the sale appear in the record, and no report of it was made to the court; the clerk certifies that no citation was returned or proof of publication filed in his ■court.
    After the introduction of this record by the defendants, it was proved by the plaintiffs that the note sued on was made payable to the Planters Bank with the knowledge and consent of the defendants, and was deposited in that bank as collateral security for the payment of a debt due the state of Mississippi by the said Howell W. Runnels in his lifetime, and which was still due for the purchase-money of Seminary lands, being the same lands purchased by the defendants of the administratrix; that the state was indebted to the Planters Bank at the time of the execution of the note, and that this note with others was deposited with the bank to secure the payment of the debt due the bank by the state; and that the plaintiff obtained possession of the note for suit by act of the legislature; that the defendants had been in quiet and undisturbed possession of the land ever since the purchase, and that neither actual or threatened eviction had occurred; that the bank did not discount the note nor advance money on it.
    On this state of fact, the court below at the instance of the defendants, instructed the jury “ that if the record of the Hinds county probate court did not show upon its face that the citation published in the paper was also posted up in three public places in Yazoo county, where the land was situated, the sale by the administratrix to the defendants was void, and they must find for them.”
    To this instruction the plaintiffs excepted; and the jury finding for the defendants, the plaintiffs prosecuted this writ of error.
    
      W. P. Miles, for plaintiff in error.
    The court erred in giving the instruction asked, for by the defendant.
    1. Because the probate court record flatly contradicts the presumption raised by the instruction. The record shows the order of sale made by the probate court of Hinds county; and in that order it is expressly recited, that it “ appeared to the satisfaction of the court that citation had been published according to law.”
    Now I submit that each court, within the range of its jurisdiction, is judge of all matters that come before it; and the record, showing affirmatively that the probate court was “satisfied” that “citation had been published according to law,” is conclusive as to that fact.
    Independent of this fact, the note sued on was made payable to the Planters Bank with the knowledge and consent of the defendants, and was deposited in said bank as collateral security for the payment of a debt due the state of Mississippi by Howell W. Runnels in his lifetime, and which is still due by his estate for the purchase-price of “ Seminary lands.” And these are the same lands purchased by the defendants from Howell W. Runnels’s administratrix, for which the note sued on was executed. In connection with this feature of the case, it was proved that the State of Mississippi was indebted to the Planters Bank, at the time said note was given, and that the note was deposited with the bank as collateral security for the amount due it by the state.
    Now I submit that be the probate court record ever so defective, the plaintiffs are entitled to recover. For, the lands sold to H. W. Runnels being “ Seminary lands,” no title could be made to him until the whole purchase-money was paid. He died, leaving part unpaid. The lands, thus incumbered, were sold by his administratrix. The defendants purchased with a knowledge of that incumbrance; made their notes payable to the Planters Bank, and had them deposited there with the purpose of extinguishing the incumbrance by the proceeds of the notes.
    That the extinguishment of t.he state’s lien would have conferred upon the defendants a valid title is clear beyond dispute. For H. W. Runnels never having acquired title to the land, none was cast upon his heirs at law by descent. And the only party holding an adverse claim to the defendants was the state, whose right might at any time have been extinguished by the payment of the notes executed by the defendants and deposited with the Planters Bank for that purpose.
    
      George S. Yerger, for defendants in error.
    Í. The sale having been made under the first order, to wit: the one made at December term, 1836, although the sale did not take place perhaps for upwards of a year after, judging' from the date of the note, the question is, is the sale void ? If it is, the note is without consideration, and void.
    There is no order of publication on file, and the only evidence in the record is that the citations were ordered to be published thirty days in the Raymond Times; and the court, when it ordered the land to be sold, recites in its order “ that it appearing to the court, that publication was made in pursuance of the order made at its last October term, it is ordered,” &c. This being the only evidence of notice, shows that publication was made for thirty days in the Raymond Times. And the question is, — is this sufficient constructive notice 1 It is clear that it is not. The statute requires the citation to be published-days, and also to be posted up at three of the most public places in the county. This latter requisite is entirely omitted. This court has so repeatedly decided the question, that it is useless to do more than refer to its repeated decisions. 5 Howard’s Rep. 739 ; 1 How. R. 62 a; Campbellv. Brown, 6 How. R. 230; Puckett v. McDonald, lb. 269; McDonald v. Rodgers, lb.; Gwin v. Me Carroll, 1 S. & M. 351; Smith v. Denson, 2S.&M. 326. See also 2 S. & M. 337; 3 S. & M. 646. Again, if the sale was had under the last order, it would be void. The last order is, that citations be published, and also be posted up at three public places in Hinds county. The statute requires the notice to be posted up at three public places in the county where the lands lie. The bill of exceptions shows that the lands purchased by Johnson, under the order of the probate court, lie in Yazoo county; the notices ought therefore to have been ordered to be posted up in Yazoo county. H. & H. 408. It is therefore clear beyond doubt, that the sale is void, and the judgment below ought to be affirmed.
    
      Work, on the same side.
   Mr. Chief Justice Shaeeey

delivered the opinion of the court.

This was an action on a promissory note, made payable to the Planters Bank, though given to the administrators of Howell W. Runnels. The defence set up was, that the note was given for land sold under an order of court by Runnels’s administrators, to which the purchaser acquired no title, because the requisite citation and notices were not given before the order of sale was made.

The statute provides, that if the personal estate of a decedent be insufficient to pay his debts, the probate court may order the land to be sold, the administrator petitioning for that purpose; and on such petition being presented, the court shall order a citation to issue to all persons interested in the land, to appear before the court at a certain time, not less than forty days thereafter, to show cause, if any they can, why the land should not be sold ; which citation is directed to be set up in three of the most public places in the county where the land lies, and to be also published for the same time (thirty days) in one of the public newspapers of the state.

By the repeated decisions of this court, a literal compliance with this statute is necessary in order to enable the court to render a valid judgment for the sale of the land; and if the statute has not been strictly complied with, the order of sale and the sale are void, and the purchaser acquires no title. Not only must the statute be strictly followed, but the records of the probate court must show affirmatively that everything has been done which the statute requires should be done preceding the order of sale. As it is a special jurisdiction acquired over the thing and the persons interested by constructive notice only, the records must show affirmatively that the court had jurisdiction. Campbell v. Brown et al. 6 How. 230; Puckett v. Mc Donald, Ib. 269; Gwin v. McCarroll, 1 S. & M. 351; Smith v. Denson, 2 S. & M. 326.

The reason for this strictness in the law is plain enough. No one can be deprived of his property but by judgment of law, and no court can render such judgment without giving the party an opportunity to be heard. He must be notified by process. The citation is the process, and the publication of it in a newspaper and the posting of it up at three public places, constitute the service, and as it is but constructive service, it is incomplete unless both acts have been performed; otherwise the court has not jurisdiction.

On examination of the record of the probate court, it appears that there were two applications to sell, one made at October term, 1836, and the other at October term, 1838, and the court made orders accordingly that citations should issue. At December term, 1836, an order of sale was made, under which this land was probably sold. In' that order it is recited, that “it appearing to the satisfaction of the court that publication has been made in pursuance of an order made at the October term last of this court, citing all persons interested in the lands, tenements, &c. of H. W. Runnels, deceased, to appear at December term, 1836, &c. &c.; and no one now appearing, it is ordered, &c.” This, it is insisted, was sufficient evidence that the law had been complied with. Assuming that this was evidence that publication had been made, still it was not evidence that citation had been posted up at three public places, for by publication we must understand that the citation had been published in a newspaper.

And it is also said, that this note was given for Seminary land, which Runnels had purchased of the state, to which he could get no title until all the purchase-money was paid, part of which remained due, and that this note was made payable in bank with a view to the liquidation of that debt, and the ex-tinguishment of the state’s lien, of all which the defendants had notice. This objection would be entitled to great weight if the contract had been made between private individuals,. because by it the purchaser would have acquired all the title the vendor had; but in this instance, the administrators have parted with no interest; whatever interest the estate of Runnels had, it still holds. The sale was utterly void, and the administrators are suing to recover the purchase-money for a thing which they have not parted, with. The instructions given by the court were therefore correct.

The judgment must be affirmed.  