
    John Doe ex. dem. R. L. Smith et uxor vs. J. A. Bradley et al.
    By the law regulating the territory of Mississippi before it was made a state, chancery jurisdiction was conferred on the supreme court; which was a court of general jurisdiction, and the sheriff its officer, who was bound by law to execute its process. Where, therefore, a bill was filed in that court against adults and infants, to foreclose a mortgage, and the process which was directed to the defendants, commanding them to appear and answer, was returned “ served” by the sheriff, and a decree rendered thereon ; held, ■ that the process and return were sufficient to uphold the decree.
    Where there has been a defective return upon process, it is a question of error or not in the rendering of the decree, and that decree cannot, on account of such defect, be attacked collaterally in an action of ejectment against parties claiming under the decree.
    A decree against infants, foreclosing a mortgage, which is rendered without giving a day after their coming of age, to show cause against the decree ; . and without appointing a guardian ad litem, for them, or taking the bill for confessed against them, will not for such irregularities be made void.
    A decree for the sale of mortgaged premises instead of a technical foreclosure, is binding on an infant, although no day be given, to show cause against it.
    An infant defendant can, after he comes of age, only avoid a decree against him by showing errors in' the decree; he cannot reinvestigate the subject-matter of the suit, nor can he redeem mortgaged premises which have been sold.
    In error, from the circuit court of Adams county; Hon. C. C. Cage, judge.
    John Doe, on'the demise of Richard L. Smith and Margaret Smith, his wife, sued Richard Roe, i. e. Joseph A. Bradley and others, in ejectment for Section seventy-five, in Township seven, of Range three, west, in Adams county. A trial was had and verdict rendered for the defendants. From the bill of exceptions it appears, that after the plaintiffs had closed their testimony, the defendants offered in evidence to the jury the record of a suit in chancery entitled Anthony Cavalier et al. v. Tyler's Heirs et al., which record exhibited in substance the following facts:
    Anthony Cavalier and Peter Pettitt, on the 22d day of November, 1808, filed in the supreme court of the Mississippi territory, before the Hon. Josiah Simpson, judge thereof, in chancery sitting, their bill in chancery, in which they state that Thomas Tyler, then dead, on the 27th day of April, 1802, mortgaged to the complainants, to secure a specified sum of money and interest, certain lands specified in the indenture of mortgage filed with the bill. That in February, 1805, Tyler died intestate, without having paid any part of the mortgage money; leaving Sally Tyler, Polly Tyler, and Margaret Tyler his heirs at law and daughters, at that time and still infants ; and Catharine Tyler his widow. That the Avidow and heirs were in possession of the property; the widow having, since the death of Tyler, intermarried'with William Jenkins. The bill prayed that the AvidoAV and her present husband and the heirs at law might be made defendants to the bi 11, and that a decree might be rendered, that unless the defendants paid the money due, at a short day, to be fixed, their equity of redemption might be foreclosed.
    Upon this bill the following subpoena issued, viz. :
    
      The Mississippi Territory of the United States.
    
    To Sally Tyler, Polly Tyler, and Margaret Tyler, heirs at law of Thomas Tyler, deceased: and Catharine Jenkins, widow of said Thomas Tyler, and William Jenkins, husband of said Catharine, Greeting:
    For certain causes offered before us in our supreme court in chancery, &c.,' we command and strictly enjoin you, that, laying all matters aside, and notwithstanding any excuse, you be and appear personally before the judges of our said court in chancery, sitting at the toAvn of Washington, on the fourth Monday in November, 1808, to answer to a bill in chancery preferred against you by Anthony Cavalier and Peter Pettitt, in our said court, and further to do and receive what our said court shall have considered of in this behalf; and this you shall in nowise omit under the penalty of one hundred dollars.
    Witness, Peter Brian Bruin, Esq., first judge of our said court, the fourth Monday of May, 1808, and of American Independence the thirty-second. Issued November 22, 1808.
    R. R. Grayson, Clerk.
    
    Indorsed : Received 22d November; -November 23d, served for Montford Galvitt, Sheriff. Robert Purviance, Deputy.
    
    Jenkins and his wife answered the bill, insisting upon Mrs. Jenkins’s right of dower in the premises; she not having been a party to the mortgage deed. The court appointed commissioners to allot the widow her dower, and proceeded to enter up a decree “ subject to the widow’s dower.” That decree was as follows, viz.:
    “ And now at this day, to wit, on Thursday, the fifteenth day of October term, in the year eighteen hundred and twelve, this cause coming on to be heard in presence of the Hon. Josiah Simpson, presiding judge of said court, and of the counsel on both sides, whereupon, on hearing the complainants’ bill read and the said bond and mortgage therein, in part recited, and also the defendants’ answer, and what was alleged by the counsel on both sides, it was decreed that the said defendants do, on or before the twentieth day of December next, pay or cause to be paid to the said complainants, the sum of four thousand five hundred and twenty-seven dollars, being the amount of the sum of money mentioned in the condition of the said bond and mortgage, including interest thereon up to the said 20th day of December next; and in default thereof, that the equity of redemption of the-representatives of Thomas Tyler and of all persons claiming under, of, in, and to the said mortgaged premises, be forever foreclosed, (except so far as relates to the right of dower of the said Avidow of the said Thomas Tyler,) and that the sheriff of Adams county be authorized to expose to sale at public vendue to the highest bidder, for cash, the said mortgaged premises, giving thirty days previous notice of the time and place of sale, by advertisement published in some newspa-. per printed in the city of Natchez, and to sell the same, (subject to the right of dower of the said widow of the said Thomas Tyler,) and on the sale thereof to make and deliver all such deeds as may be necessary to convey to the purchaser or purchasers thereof the title thereto, and the proceeds of such sale to pay over to the said complainants or their counsel in discharge of the said debt and costs of suit, and the residue, if any, to have here in court at the next succeeding term thereof.
    
      “ Josiah Simpson.”
    Under this decree, the.clerk of the court issued to the sheriff an order to sell the mortgaged premises; describing them. The sheriff received and returned the writ, with the report that he had sold the mortgaged property, (which included the property in controversy,) and which had been purchased by the complainants in part discharge of the debt due to them, and filed a receipt of the complainants’ counsel for the purchase-money.
    To the reading of this record the plaintiffs below objected, and their objection being overruled, they excepted and prosecute this writ of error.
    
      Montgomery and. Boyd, for plaintiffs in error.
    Under the circumstances, we contend the decree was void. That the only persons whose rights are decreed against were not parties to the record.
    The court will observe the subpoena was not directed to the sheriff. If the process had been directed to the sheriff, we might have been justified in the presumption that some rule of court, or statute now lost, made it the duty of the sheriff; but as.it is in the form of English chancery process, and no direction to the sheriff, we are bound to consider it subject to the rules of English courts, which at that day required the service should be proved by the affidavit of the party who made it. 2 Smith’s Ch. Pr. 514.
    We do not question that the service by the sheriff or any other person would have been sufficient, but as it was n"ot an official duty or power, his return is of no higher authority than a similar return by a private person. His return should have been made on oath, and in the form or to the effect prescribed by the rules. The Act of 1807 on the subject leaves the matter where we find it in the books of practice. Turner’s Dig. 142, § 34. The authority by which the sheriff acts at the present day is to be found in statutes of 1822. Revised Code, 88, §19.
    But the return was not sufficient, if the sheriff was authorized to execute the process. It is simply “served.” 1 Hoff. Pr. 171, 172; Ibid. 105, 106, 115, 116.
    But if the service was sufficient, can any valid decree be rendered against an infant without an appearance?
    From the authorities it appears very clear such decree would be erroneous. When the defect is noticed by the court, it is an ancient rule and has been the general practice, that no decree can be taken against an infant without giving a day to show cause against it, after coming of age; and he is to be served with process for that purpose on coming of age. 3 Johns. Ch. R. 367; Bingham on Inf. 118, ut sup. Why have courts adopted the practice of appointing a guardian ad litem ? Why the rule that a decree'shall not be final until after they have Had an opportunity to show cause against it after coming of age, if a final decree will bind them, rendered during tender years, when no person represented them ? The bill shows that the defendants were minors; no decree, therefore, should have been rendered without an appearance; and a guardian ad litem was alone competent to enter an appearance. And without an appearance the court had not jurisdiction of the parties; and therefore its decree is void. 1 Barbour’s Pr. 77.
    
      Quitman and McMurran, for defendants in error.
    1. As to the service of the process in the chancery suit, the record of which defendants gave in evidence, there is no ■dispute. The subposna issued against Mrs. Smith and the other defendants, and is returned served. This is sufficient. 6 How. R. 661, 664.
    
      2. Then we contend for the principle that it is the service of the process on an infant (as well as an adult) defendant, which gives jurisdiction of the person to the court, and that the non-appointment of a guardian ad litem is only a matter of error, for which the judgment or decree may be reviewed or reversed by bill of review, and by an appeal or writ of error, in the mode pointed out by the statute. The decree may be voidable, it is-not void, and the proceedings were admissible in evidence. H. & H. Dig. 571, 572, §102, 103; Jones v. McGinty, 3 Dana’s R. 425; Shropshire v. Runo, 5 Dana’s R. 583, 584; Collins’s Heirs v. Groom, 2 J. J. Marsh. R. 487; 2 Munf. R. 129; 14 Johns. R. 417.
    But the authority to be found in the case of Porter’s Heirs, v. Robertson, 3 Marsh. R. 253, 254, is directly in point, and in our opinion decisive of this case.
    A very clear and strong decision, showing the distinction between void and voidable judicial proceedings, when brought before courts collaterally, as in the present case, will be found in the case of Voorhees v. Bank of U. States, 10 Pet. R. 449, 469, 473. So also the principle, decided in the case of Tomlie v. Thompson, 2 Pet. R. 163, 168, applies with great force in the present case, where the suit is instituted some thirty years after the sale of the property.
    These authorities show, too, that a party shall not be permitted to do indirectly that which he is barred from doing directly from lapse of time or by express statute.
    A bill of review or writ of error must be prosecuted by the infant within two years after arriving at the age of majority. H. & H. Dig. 571, 572, § 102, 103.
   Mr. Chief J ustice Sharkey

delivered the opinion of the court.

The plaintiffs brought ejectment for a tract of land in Adams county, being Section No. 75, in Township No. 7, of Range No. 3, west. After closing their proof, the defendant offered in evidence the transcript of a record of a suit which had been instituted and decided on the chancery side of the supreme court of the Mississippi Territory. The bill was filed by Anthony Cavalier, against the widow of Thomas Tyler, and his infant daughters Sally, Polly, and Margaret, the latter being the wife of R. L. Smith, and one of the present plaintiffs, to foreclose a mortgage executed by Tyler in his lifetime, on the tract of land in dispute. Process issued against all of the defendants, which was returned by the sheriff of Adams county, “served.” The widow answered, but 'the infants failed to answer, nor was a pro confesso taken against, them, or guardian ad litem appointed. A decree, foreclosing the equity of redemption, and for the sale of the premises, was rendered, saving the widow’s right to dower. The land was sold, and the defendant claims title under the purchaser. The plaintiffs’ counsel objected to the introduction of this record, and took exceptions, and its admissibility constitutes the ground relied on for reversing the judgment.

Several objections are raised to the record, which, it is insisted, make the decree absolutely void ; and being so* it was not competent as a matter of evidence. These are, that no process was executed on the infants; that a decree was rendered against them, without appointing a guardian ad litem, and that the decree contains no saving in their favor after they should become of age.

Although the process was returned by the sheriff “served,” yet it is contended that it was not directed to- him, nor was it part of his official duty to execute chancery process. It is further insisted, that service on infants must be personal, and must appear so to have been made.

Under the statute law, as it at present stands, all process emanating from the superior court of chancery, is directed to the sheriff, and it is part of his official duty to execute and return it. H. & H. Dig. 508, sec. 19. But it is said this law was passed in 1822, prior to which there-was no statutory provision, and consequently that chancery process was served according to the English practice, according to which this service was insufficient. It is undoubtedly true, that if the court had not jurisdiction of the persons, as well as the subject-matter of the suit, the decree was void and improperly admitted; but if the decree was only erroneous, it cannot be collaterally questioned ; it is binding so long as it remains unreversed. The sufficiency of the service is consequently an important question, as the subject-matter was evidently within the jurisdiction of the court.

Although the English practice in regard to the service of process has been examined with some care, yet we think the question rests upon a foundation less doubtful, and therefore prefer to place it on that alone. By the law of the territory, chancery jurisdiction was conferred on the supreme court, as there was not then a separate court of chancery. This was a court of general jurisdiction, and the sheriff was its officer. He was bound expressly by law to execute all its process. Toulman’s Dig. 219. This was the law as it stood during the pendency of the chancery suit. By all process we must understand every description of process which the court might issue in the exercise of its common law jurisdiction, or its chancery powers. This process emanated from that court, and it was served by the sheriff, who was its officer. Although not specially directed to him in the body of the process, yet the law directed it to him by general provision.. It is not the mere direction of process to the sheriff which gives him power to act; he derives his power from the law, and must act in accordance with its mandate. Being his duty to return process, his returns are to be regarded as made under oath, and are sufficient to justify the court in proceeding to judgment. Whenever service is required to be made in a particular way, if the manner of service is attempted to be set out, it must show that the directions of the law have been complied with. But if a sheriff make his return general, “executed,” or “served,” a. legal service is understood; that is, that it has been served according to law. This is according to the course of the recent decisions of this court; and we see no reason why the same rule should not be applied to the returns made at an earlier day in our judicial history. By this rule we must hold this return to be sufficient. But if it were even a defective return only, that would be a question of error or no error. •

But it is insisted that, for the other objections pointed out, the decree was void. In decrees against infants it is usual, and indeed generally necessary, that a day should be given after coming of age, to show cause against it. 2 Peere Williams, 120; 1 Ibid. 504; 2 Vesey, 484. But how can an infant avoid a decree after coming of age 1 Only by showing errors in the decree. He cannot reinvestigate the subject-matter of the suit, nor can he redeem mortgaged premises which have been sold. Matlock v. Gatton, 3 Peere Williams. -But a decree for the sale of mortgaged premises, instead of a technical foreclosure, is binding on an infant, although no day be given. 2 Vernon, 429. This was a decree of that kind; it was a decree for the sale of the premises on failure to pay the money. If such decrees be binding on infants, it is clear that the failure to appoint a guardian ad litem, and the omission to take a pro confesso, are not such irregularities as will make the decree void. For these errors the decree probably might have been reversed, but that is not now the question. The decree being then, at most, irregular, the transcript of the record was properly admitted, and the judgment must therefore be affirmed.  