The first and second objections taken by the appellant to the judgment of the Court below, may be considered together. The sale of the land was a judicial sale, and operated in rem. In such cases, it is a general rule that cavaet emptor applies, and the purchaser takes his purchase without warranty express or implied; and if the administrator, in executing the order of the Court, gives the purchaser a bond for a warranty-title, it is not in his character as administrator, and he cannot bind the estate of his intestate by such a covenant; as a personal undertaking between him and the purchaser, how far it would be valid, is not now before us, and consequently, we pass it by. (9 Wheat. R. 616.) But if considered independent of the circumstances of the sale in this *Page 438 case, and if it was a case of individual private contract, the defence set up could not be available; because it is repugnant to the plainest principles of law and justice, to allow this defence to be heard, whilst the vendee holds on to the bond, and continues in the possession of the land purchased. (11 Mart. R. 615.) And had there been no contract in writing, and had it been a private contract between the vendor and vendee, and the vendee had given his note for the payment of the land and gone into possession, he could not avoid payment, notwithstanding the statute of frauds, if the plaintiff was able and willing to make title. (Rhodes Adm'r v. Storr, 7.Ala. R. 346.)
But the evidence, offered by the defendant in the Court below, entirely failed in establishing a superior outstanding title to that of the plaintiff's intestate. The evidence of Johnson Hensley, a witness, and the only one offered, [and he was introduced by the defendants,] proves that the land was a part of the headright league of his father Harmon Hensley; that H. Hensley was also the father of the plaintiffs' intestate; that the father died in 1834, leaving several children, all of whom were of age, excepting one daughter about fifteen years of age; that shortly after the death of his father, the children, by consent, divided his land into equal shares; that they set apart the best allotment to the sister, who was a minor; that she was married in 1835, and that she and her husband had sold her share to the plaintiffs' intestate; that each of the heirs had entered upon and enjoyed their several shares, and had acquiesced in the partition so made in 1834, and made no complaint; the witness did not know whether the partition was by an agreement in writing, or not.
The appellants' counsel supposes this partition was illegal and void, and to show that it is so, refers to the Act of Congress of the Republic, of 1840. The requisitions of that Act, six years after the amicable partition, could not disturb rights growing up under it; the parties, with the exception of one, were of an age to divide out the land that had descended to them, by consent, even if the Act of 1840, or a law similar *Page 439 in its terms had been in force at the time the partition was made, and the other's acquiescence and confirmation after she was of age to act for herself, would bind her.
There can be no doubt, that at the time the partition was made, a verbal sale of land between individuals was binding, and the contract as valid as if evidenced by writing. It was so decided by this Court, under the Republic. (Scott and Solomons v. Maynard and Wife, Dallam's Digest, 551, and the authorities there cited.) But if the law at that time had required that the partition should be in writing, it could not be disturbed now; the right to the respective shares, according to the partition, is now established beyond controversy, by the statute of limitations.
Leaving the fact of the appellant Lynch being a purchaser at a judicial sale, out of the question, and placing him in the more favorable position of a vendee under a private contract with Cooper, the bond he sets up in his plea, and the possession of the land would afford ample and legal consideration for the note sued on, to entitle the plaintiffs to recover. We do not intend to be understood, in commenting on the evidence of outstanding title, to be considered as giving it our judicial sanction; if, however, it is objectionable, it is not for the appellants to raise the objection, as the witness was introduced by them, though objected to by the plaintiffs.
We now come to the last objection, and the one most relied on in the very able and ingenious argument of the appellants' counsel: That the decree of the Probate Judge, ordering the sale, is a nullity. That the judgment, order or decree, of a Court of general jurisdiction, on any subject to which the jurisdiction has once attached, however erroneous, defective or irregular it may be, can never be questioned or avoided in a collateral way, until it has been reversed, set aside or revoked in a proceeding having that object directly in view, has been considered as well settled for the last century, and cannot be now disturbed. It has, however, been supposed by some, that the proceedings of a Court of limited jurisdiction are not entitled *Page 440 to the same regard, and that the records of such Courts must show a strict conformity to all the requisitions of law; and that unless they do show such conformity, their acts confer no rights and impose no obligations on any one, and may be treated, whenever and wherever presented, as entire nullities, and void. Such is the position assumed by the appellants' counsel; and he contends that the decree of the Probate Judge, ordering the sale of the land, for the purchase of which the note sued on in this case, was given, is of that kind. The record of the Probate Court, used in evidence on the trial below, was introduced by the appellants, and does not purport to be a complete record of all the proceedings in that Court, in relation to the administration in which the order of sale was made; the appellants can, therefore, claim no advantage arising from the fact of its being only a part of the record.
The decree of the Probate Court, ordering the sale of the land belonging to the estate of Cooper's intestate, was made under the provisions of the 29th Section of an Act regulating the duties of Probate Courts, and the settlement of successions, passed by the Congress of Texas, at the session of 1840, and is in the words following: "Every executor or administrator" is bound, within three months after his appointment, to petition the Court of Probate, granting letters testamentary or "administration, for the sale of all the perishable property" belonging to the succession, and all or such portion of the "other personal property, except slaves, as may be shown to "the Court, to be necessary for the payment of debts against "said estate; and in case, or if on further information, he "finds that the proceeds of the sale of the personal property" will not be sufficient for the payment of the said debts, he "shall then, within six months after his appointment, or as "soon as he ascertains the said deficiency, petition the Probate Court for the sale of the slaves and real estate of the "decedent, or so much thereof, as may be necessary for the "payment of said debts; and the said Court, on full and satisfactory proof of the existence of the debts, and the necessity *Page 441 "of the sale, shall order the same on cash or credit, as may be "most advantageous to said estate, or as the nature of the "claims against said estate may require."
The record offered in evidence, of the decree ordering the sale, supposed by the appellants to be so defective as to amount to an ullity, shows a petition on oath, preferred by the administrator in the words following: "To the Hon. John H. Money, "Chief Justice of the county of Austin, and Judge of Probate for the said county: The petition of Walter C. Cooper, "administrator of James Hensley, deceased, respectfully represents that there is about five hundred dollars worth of "property belonging to the succession, which he thinks is "likely to be wasted, unless the same should be disposed of; "your petitioner further represents that the debts, already presented against said succession, amount to about twelve hundred dollars, and the expenses of the administration make "it necessary to sell some of the real estate, in addition to the "perishable property belonging to the succession. Your petitioner would, therefore, pray your honor to issue your decree "to sell the perishable property of the said estate, and so much "of the real estate as may be necessary to satisfy the debts of "the said succession, and the expenses on the same, and as in "duty bound your petitioner will ever pray.
"D. Y. PORTIS, Att'y P. Q."
Which was sworn to in open Court, by Walter C. Cooper the administrator, and attested by the Clerk. Then follows: "Walter C. Cooper's petition for the sale of the perishable "property and real estate. In the Probate Court, May Term, "1841, the within petition having been read and considered, "it is, therefore, ordered, adjudged, and decreed, that Walter "C. Cooper, administrator of the estate of James Hensley, "deceased, proceed to sell all the perishable property belonging to the said succession, at the late residence of the deceased. And that he also proceed to sell so much of the "real estate belonging to the said succession, as shall be of *Page 442 "value sufficient to pay the debts of the said succession, and "the expenses of administering the same.
"J. MONEY, Probate Judge, A. C."
Then follows an order from a Justice of the Peace of Washington county, to three individuals, to appraise two tracts of land, part of the league of Harmon Hensley; the return of the appraisers; then the administrator's return of the account of sales of two tracts of land appraised, the first sold to Rebecca Allen, and the second to J. R. Lynch, (one of the appellants,) amounting to nine hundred and eighty one dollars and eighty-seven cents. This return is sworn to by the administrator before the Probate Judge, and the order of the Judge, as follows: "Let the foregoing be admitted to record. Oct. "28th, A. D. 1841. J. H. MONEY, Probate Judge."
The objections, taken to the proceedings of the Probate Court, just cited, that will be noticed, are: that the petition does not show a conformity with the law, in this, that it does not show that the perishable property had been exhausted before applying to the Probate Court, for an order of sale of the real property; that the record does not show the facts constituting the necessity for a sale of the real property; that the record should show the evidence by which the Judge of the Probate Court acted in awarding the decree directing the sale of the real property; that the Probate Court being a Court of limited jurisdiction, if the record does not disclose all the facts necessary to the exercise of its jurisdiction in giving its judgments and decrees, they are void.
The question how far a defective judgment, order, or decree of the Probate Court, could be considered, in a collateral matter, has been much discussed in the Supreme Court of Alabama, in a case calling in question a sale of real estate, by an administrator, in a suit brought for the same property by the heirs of the intestate, and in its principles and features, in many respects similar to the case before us. By the statute of the State of Alabama, after an order of sale has been decreed, *Page 443 the administrator is required to give bond to conduct the sale according to law, before he can obtain the order from the Clerk of the Orphans Court. In the case of Wyman, et al. v. Campbell, et al., (6 Port. R. 219,) the Circuit Court charged the jury, "that if the administrator had sold the real estate of his "intestate, without giving bond according to law, his proceedings were absolutely void. "This charge was assigned as error, in the Supreme Court of the State. In overruling the opinion of the Judge of the Circuit Court and reversing the judgment, Chief Justice Collier discusses with great ability, the right to question the judgment of the Probate Court, on account of any error or defects in such judgment, in a collateral inquiry. He puts the judgment of that Court, upon the footing of all other judgments, that the inquiry can only be: had the Court competent jurisdiction to render such judgment ? if it had, however erroneous it may be, that judgment cannot be controverted, until it has been reversed or set aside by an appellate tribunal, in a proceeding having that object directly in view. (Id. 241, 242.) The Chief Justice, in adverting to the fact that the opinion he was then giving, ran counter to the opinion of the Court in Wiley and Gayle v. White and Lesley, that had been twice before the Court, reported in 1st Stewart, 331, and in 3 Stewart and Porter, 355, proceeds: — "The very great respect we entertain for the learning of the "Judges who concurred in the opinion in that case, and the "propriety of upholding the doctrine of stare decisis, have "induced us to give to this case, a more careful and elaborate "examination. Principles the opposite of those we have stated, would be productive of the severest and most extensive "injury. It is impossible to conjecture the vast amount of "property held under sales made by order of an Orphans Court, "and we all know that in at least three-fourths of the cases, "the records are remarkable for their want of technicality and "legal precision. Let the rule be established and continued, "which requires the record to disclose every material fact, and "which makes indispensable to the passing of the title, publication *Page 444 "of the petition to sell, the return of the sale, the execution of a bond by the administrator, to the Orphans Court, "and every thing else which the statute prescribes as preparatory to a decree, and a large majority of the titles acquired "through such a channel, would be overturned. In questions "of doubt, arguments drawn ab inconveniently deserve great "consideration. It is worthy of remark, that the distinction "between void and voidable judgments, seems not to have "been considered in the case of Wiley and Gayle v. White "and Lesley; but it is assumed that the proceedings of the "Orphans Court, may be collaterally impeached for an omission to disclose on its records, an observance of every thing "enjoined by statute, upon the ground that it is a Court of "limited jurisdiction. This reasoning only proves the order "to have been voidable, if the authority of the Court was "shown, and that it could not hold good on an appeal or writ "of error, but does not show that it was void per se, so as to "subject it to an indirect attack. "Having participated in the case of Wiley and Gayle v. White and Lesley, it may be permitted me to bear testimony to the correctness of Chief Justice Collier's remarks, that although twice before the Court, the distinction between void and voidable judgments, was not presented or considered; but, it was taken for granted, that as the Orphans Court was of limited jurisdiction, its judgment could be collaterally attacked. And at that time, cases were not as well discussed, as at a subsequent period. The remarks of the Chief Justice, as to the extent of evil that would result from a different rule, are most strikingly applicable to our own State. If irregularities in the Alcalde's Courts, in the Probate Courts of the Republic, and under the State organization, could nullify the decrees and judgments, property would be unsettled to an extent far more distressing than can grow out of land titles emanating from different sovereignties.
I have been so forcibly struck with the practical good sense of the remarks of the Supreme Court of Ohio, on this subject, that I trust I shall be pardoned for introducing them here. In *Page 445 the case of the Lessee of Goforth v. Longworth, (4 Ohio R. 129,) the Court says: "It is held to be well settled, that "Courts give a liberal construction to statutes authorizing "sales of real estate by executors and administrators. Public policy requires that all reasonable presumptions should "be made, in support of such sales, especially respecting matters in pais. The number of titles thus derived, and the "too frequent inaccuracy of Clerks and others concerned in "effecting these sales, render this necessary. If a different "rule prevailed, purchasers would be timid, and estates consequently be sold at diminished value, to the prejudice of heirs "and creditors."
The doctrine we have been discussing, was again presented in the Supreme Court of Alabama, at a more recent period, in Hilliard and Wife v. Binford's heirs, (10 Ala. R. 977,) and Chief Justice Collier, reviewing and sustaining Wyman et al. v. Campbell et al., held that where the record of the Orphans Court recites, "that a citation issued as required by the statute, and therefore orders that the will be admitted to probate," it is at most voidable only and cannot be collaterally impeached, but must be avoided, if erroneous, in a direct proceeding.
That the Probate Court has jurisdiction over the estates of deceased persons, cannot be doubted; that this jurisdiction was brought into exercise directly upon the property, by the petitioner praying the decree for an order of sale of the land, is equally clear. The land was the subject matter on which the Court exercised its jurisdiction; whatever might be the order, it was a question before a competent Court, and its decision was subject to revision by appeal, but could not be attacked in a collateral way. That it was a proceeding in rem, can be made manifest, by supposing that the heirs of the intestate had sued Lynch, the purchaser, and attempted to show that this judgment, or decree, for the sale of the land, was void, because they had no notice, and were not parties to the proceedings of the Probate Court. The answer would be, that it was not necessary to make them parties, because the proceedings *Page 446 were in rem, acting on the land directly, and that the decree of the Court could not be collaterally attacked. If the sale was without any necessity existing at the time the order was made, for such sale, still that order was conclusive until it had been set aside by proceedings having that object directly in view; and the purchaser, having purchased without fraud or collusion with the administrator, would be protected by the sale, if the decree under which it was made, was the decree of a Court of competent jurisdiction. This would come clearly within the rule laid down in Wyman et al. v. Campbell et al. and the purchaser would not be affected by any irregularity in the proceedings, or error in the judgment of the Court, in making that decree; all the vigilance the law would exact from him, would be to see that the Court making the decree, had competent jurisdiction, and he could not be called upon to inquire whether the evidence before the Judge, of the necessity of the sale, had been spread on the record, or not.
This would be decisive of the case, according to the principles discussed in the cases we have examined. It is said that a different rule has been recently laid down in New York, in the case of a proceeding before the Surrogate. If so, it is repugnant to the opinion of Chancellor Kent, in Moore v. White, (6 Johns. Ch. R.) and to the opinion of the Supreme Court of the United States, in Thompson v. Tolmie, (2 Pet. R. 168,) and to the opinion of the Supreme Court of South Carolina, in Gewas and Wife v. Brown et al. (1 N. McC. R. 329,) and to the whole course of the Alabama decisions, since Wyman et al. v. Campbell et al. already cited.
But suppose that the rule of law should be otherwise, and it was competent for the appellants, in this case, to call in question, in this suit, the correctness of the decree of the Probate Judge, in ordering the sale, and we were now called on to reverse the decree, as a case brought before us on an appeal; for this is the effect of permitting the decree to be questioned, if it was made by a competent tribunal. Would the appellants be in a better condition ? For the purpose of answering *Page 447 the question, we will again refer to the petition. It shows, that is to say, it represents the perishable property to be in sufficient to pay the debts, and asks an order or decree for its sale, and for the sale of the real estate or so much as may be sufficient for the payment of the debts; the petition states the value of the perishable property, and the amount of debts presented. The appellants however, say that the value of the perishable property does not appear upon the record; that there ought to be better evidence. To which they may be answered very appropriately, that the record, or part of the record offered in evidence, does not purport to be the whole record of the succession; that it is the evidence of the appellants, and if they had brought up the whole record, it would have been found that this perishable property had been appraised, and the appraisement properly returned as required by law, into the Probate Court, and then admitted to record. The law required this to be done, and as it is not shown not to have been done, not even a presumption against it raised by the evidence introduced by appellants, we are bound to believe that it is so of record. It may be well said, that if every thing that the appellants insist should appear on the record, really ought there so to appear, for aught that appears in evidence, it is in the record. The appellants brought the regularity of those proceedings, into the discussion, and as evidence, offered the certified copy of the petition for a sale, the decree ordering the sale, the account of the sale returned by the administrator, and the order of the Probate Judge, that it should be admitted to record; and the Clerk certifies that it is a copy of these particular proceedings, and not that it is a complete transcript of the record of the succession. The same may be replied to the objection that it ought to appear on the record, that the decree was based on other and better evidence of the amount of the debts against the estate, than is found in the petition, that as the law required a return of all these debts, to be made to the Court; and also, that as they were required by law to be presented to the Judge for his approval, *Page 448 we are bound to believe that all this was before the Judge, and in this way he arrived at the conclusion, that from the amount of debts and the appraised value of the perishable property, a sale of real estate was absolutely necessary for the payment of the debts and the expenses of administration. — The Judge of the Probate Court might, if so inclined, have entered his decree more formally, and recited the nature of the evidence that produced the conviction in his mind, that the estate was really indebted to an amount beyond the value of the perishable property, and that from the tableau of debts he was fully satisfied of the existence of these debts, and the necessity of the sale; but the law does not require him to state the evidence or satisfactory proof by which he arrived at his conclusion; nor can we say that his failure to do so renders the decree a nullity, or that it was reversable.
But it was said the decree ordering the sale of the perishable property and the real estate, under the same order, is not in conformity to law; that no order could legally be made for a sale of the real estate, until after the sale of the perishable property; and that there was no other means of ascertaining that there would be a deficiency of assetts from that source, to pay the debts. It is certainly very clear, that the proceeds of the sale of the perishable property, ought first to be relied on as the fund for the payment of the debts; and such was and is the meaning of the law; but there is nothing that would restrain the Probate Court from ordering the real property to be sold, as soon as it was made to appear that there would be a deficiency from the perishable property. The section is exceedingly awkwardly expressed. After directing that the administrator shall petition, within three months from his appointment, for the sale of all the perishable property belonging to the succession, and all or such portion of the other personal property, except slaves, as may be shown to the Court, to be necessary for the payment of the debts against the estate it then continues, with a comma after the word estate, "and "in case or if on further information, he finds that the proceeds *Page 449 "of the personal property will not be sufficient to pay the said "debts, he shall then, within six months after his appointment, or as soon as he ascertains the deficiency, petition," c. The most satisfactory construction that can be put on the clause, or part of the section, last quoted, makes it his duty to petition as soon as the fact of the insufficiency is made apparent, without regard to the fact that the perishable property had not yet been sold. And in this case, it was apparent that there would be such deficiency, from the amount of debts presented, and the small amount that could be realized by the sale of the perishable property. And on this being satisfactorily proved to the Judge, we cannot perceive that there would be error in his decreeing the sale of both, at the same time.
In fine, if the decree of the Probate Court was before us for revision, I could not say, from the presentation of the record, that it ought to be reversed. I am, however, very clearly of the opinion, that if it was defective and erroneous and the error apparent, that it could not be questioned by the appellants, in this suit; that it could only be attacked by proceedings having that object directly in view, that is to say, to reverse or revoke it. It may be an erroneous judgment; but it is a judgment of a court of competent jurisdiction, and is safe from a collateral attack.
It will be perceived, that from the view we have taken, even if the decree of the Probate Judge could be questioned in this suit, the judgment of the Court below would be affirmed, because we discover no substantial errors or defects in that decree.
Judgment affirmed.