—There were many exceptions taken by both parties to each other’s pleadings that we will not undertake to discuss or decide, but will proceed to the consideration of those questions upon which we. deem the rights of the respective parties materially depend,
There is a question with us, which has not been discussed sufficiently perhaps, whether the plaintiff, as the heir of the intestate, can sue for this land.before it is made to appear *748that the administration has been closed, up; if valid, it is a general rule that the heirs cannot sue in their own right as heirs, for property of the estate; the administrator or executor must sue, else there might be two suits at the same time, one by the heir, and the other by the administrator or executor. (2 Tex., 400; Id., 182.) There are exceptions to this rule, as when the administration has been closed, or when there are no debts against the estate and no administrator; in these cases, the reason of the rule not applying, the heirs may sue. (8 Tex., 182.) When there are creditors or an administrator of the estate, the heirs should not be permitted to sue for and recover property of the estate in their own right, and hold it against the administrator and the creditors, and thus effect a partition of the estate in whole or part, without satisfying the debts against the estate. It would seem to be a safe rule ° . not to permit the heirs to recover property by suit in their own right, unless they make it appear that the administration has been closed, or that the condition of the estate is equivalent to that, by, showing there is no administrator appointed or acting, and that there are no debts against the estate. (9 Tex., 504; 9 Id., 15; 12 Id., 285; 16 Id., 385.) .
If the sale of the certificate were fraudulently made, and for that the sale would be canceled, the law regards it as unadministered assets of the estate, and it would properly pass back into the hands of the administrator of the estate, to be disposed of in due course of administration. (2 Tex., 182; 15 Id., 604.) If necessary, the administrator who makes the fraudulent sale can be removed for that cause, and an administrator, de bonis non, appointed in his stead, (O. & W. Dig., Art. 723;) or, at the instance of the heir, a receiver might be appointed perhaps, and the property protected until a more faithful administrator can be appointed. (4 Tex., 382.)
In this case, the plaintiff-contends that there are no valid *749claims against the estate, and that the administration was fraudulently procured ny Flannikin and Giddings, and is void. If that be the true state of the case, the suit perhaps might be maintained, but it is upon the ground that there are no debts against the estate and no administrator. But it would seem that this rule would not obtain, if the administration of Flannikin be legal and valid and still open, nor do we think it makes any difference in this respect if the sale to Giddings be fraudulent; for, in that state of the case, the sale would be canceled on account of the fraud, and the land would fall back into the estate for administration, and the administrator, de bonis non, could recover it on that ground from Giddings if there were fraud in the sale, and the land would again be sold to pay the debts against the estate. (Burdett v. Silsbee, 15 Tex., 604; 2 Id., 182, cited above; 9 Id., 247; 1 Will. on Ex., 785; 4 Id., 276.)
Waiving this point for the present, we will proceed to the consideration of the ground taken by the plaintiff, that the administration granted in Milam county and- removed to Burleson is void, on the ground that W. H. Steele was a resident citizen of Washington county at his death. Article 1087, Hartley’s Digest, in force at the date of the grant of letters in Milam county, in February, 1846, reads as follows: “ That the proper county for opening successions shall be determined by proof, giving preference in the following order: first, in the county where the deceased had a fixed domicil or fixed residence; second, in the county where the deceased owned real estate; third, where the deceased had. his principal effects; fourth, where the deceased died.”
The probate court had a general jurisdiction over the estates of deceased persons, and the law gave the rule above by which the probate judge should determine by proof whether his were the proper county in which letters should be granted in every application to him for that pur*750pose; and it may be well contended that his decision upon the application is final and conclusive, until revoked by appeal or other direct proceeding for that purpose, and, like the judgments of other courts, cannot be attacked collaterally in respect to matters falling within its jurisdiction. (15 Tex., 616; 23 Id., 494.)
When letters of administration have been granted in one county the jurisdiction of that court attaches, and it has been held, that no other county court can take jurisdiction over the estate by granting letters, (7 Tex., 523; 15 Id., 535, 551, 616;) and the same rule obtains when the administration has been closed up. (9 Tex., 18; 12 Id., 285; 13 Id., 192; 18 Id., 97, 100.)
Mere irregularities in the proceeding had in granting letters or orders of sale, or omissions that do not appear to be supplied, will not vitiate the grant of letters or order of sale, if the court had jurisdiction over the subject-matter. (18 Tex., 98, 100; 20 Id., 430; 4 Id., 431; 12 Id., 440; 15 Id., 557.)
Letters of administration having been granted by the probate judge of Milam county, and no other probate court having assumed to grant them, it seems but a natural presumption to hold, at this late day and in a collateral proceeding, that it was in proof before the probate judge of Milam county that W. H. Steele had his fixed domicil in Milam county, and that his residence in Washington was temporary and not fixed; and upon such evidence he determined the preference in favor of Milam county; and if the evidence was not entirely satisfactory, those interested in the estate should have appealed, and had the order set aside, before the rights and interests of others become intermingled with and resting upon the legality and correctness of that decision.
The evidence in this cause does not show conclusively that W. II. Steele had his fixed domicil or fixed residence in Washington county at his death. The evidence appears *751to "be, that he had been, the commissioner of Bobertson’s colony, extending grants to the colonists before the closing of the land office in 1885, and had a fixedjdomicil at Viesca, in Milam county, until 1837 or 1838, when he went to the town of Washington, and there engaged for a short time in merchandising; went to Kentucky, and was absent for some time, and had returned but a few weeks or months before his death, at which time he had determined to leave Washington county; that the most of his land business was in Milam and Bexar counties. This statement of the facts does not necessarily show a change of his fixed domicil from Milam county at his death, it being well settled that the domicil remains unaffected by any temporary residence abroad, and is not changed until a new one is formed by settlement in the new one, with intention of there remaining at it as his home. Animo manendi. (5 Tex., 469; 1 Id., 84; 11 Id., 465; 18 Id., 433; Ex parte Blumer, Galveston-Austin term, 1865,) [27 Tex., 734; Paschal’s Dig., Note 240, p. 106.]
The certificate in virtue of which this land was patented was rejected by the traveling board of land commissioners, and in all probability the claim would have been lost to the estate entirely if Flannikin had not been appointed administrator of the estate, and instituted suit before 1st July, 1847, to re-establish it, which he did; and, as the administrator of the estate, recovered and re-established it. Bow the plaintiff comes and sues for the land thus sued for and saved by the administrator, and attempts to reap the fruits of his acts as administrator of his father’s estate, and at the same time denies that he was administrator of the estate authorized to recover the certificate. We are of opinion that, as he attempts to avail himself of the products or results of the acts of Flannikin, done as administrator, he will not be heard at the same time and in the same breath, as it were, to deny the existence of the capacity of the administrator, through and by reason of *752which the land was acquired for the estate. He will be estopped from making such a denial. (Porter v. Cummins, 14 Tex., 175; 12 Id., 440; 11 Serg. & Rawle, 429; 2 Pet., 157; 2 How., 319; 10 Pet, 449; 8 Wend., 18; 9 Id., 107; 19 Ala., 430; 7 Cush., 350; 12 Page, 289; 1 Jones, 220.)
We are of opinion, however, that this estoppel will extend no further, and that the plaintiff will be heard to aver and prove fraud in the sale of the certificate, or in obtaining the order under which it ivas made. This ground the plaintiff appears to have taken, and upon it the jury'appear to have based their verdict mainly. But, before considering further the question of fraud, we will consider the following instruction given by the court to the jury: That, if Giddings had not plead anything for the certificate located on the land, the title between him and the plaintiff is void for want of consideration, and the plaintiff should recover.
The sale was made on twelve-months’ credit, and it ivas the duty of the administrator to make a conveyance to him when he complied with the terms of sale. (O. & W. Dig., Art. 780.) And if the administrator made the conveyance, or neglected to take noté and security as required by law, he becomes liable for the amount of the sale. (O. & W. Dig., Art. 782.) The deed being made, and no re-sale, as the administrator had a right to make upon Giddings’ failure to comply with the terms of sale, (O. & W. Dig., Art. 779,) it must be inferred that the terms of sale were complied with sufficiently to secure the amount of the sale from him or the administrator to the estate. We are of opinion that his failure to pay, if proved, was not sufficient to enable the plaintiff to recover as upon a failure of consideration. If he has not yet paid the purchase-money, it may still be collected of him or the administrator, either of which would ansiver the purposes of the estate, and meet its just demand upon him. '
At the request of the plaintiff, the court instructed the jury that, if W. H. Steele was a resident citizen of Wash*753ington county at Ms death, that was the proper county in which administration should have been granted. TMs charge, as an abstract proposition of law, may not be objectionable, if “resident citizen” be the same as one having a “fixed domicil” or “fixed residence” in that county. But in this case we believe it was inapplicable, and was calculated to mislead the jury; for if the probate court of the county of Milam had not authority under the law to adjudicate and determine that point, and place it beyond collateral controversy, the plainti.fi) in his claim of the land as heir of W. H. Steele, recovered and secured by Mannikin in his capacity and office of administrator of said Steele’s estate, will not be heard to contest or deny the legality of the appointment and character of said administrator, as has been shown in this opinion.
And the charge to the jury based upon the hypothesis that he and Giddings confederated together, in obtaining letters of administration in Milam county and the removal of it to Burleson, was calculated to mislead the jury for the reasons given above, and also because there was no evidence in the cause that Giddings had any connection whatever with either the grant of letters or the removal of the administration to Burleson county, it being a new county, formed in part of Milam. (O. & W. Dig., Arts. 817, 818, 819;) [Paschal’s Dig., Arts. 1257, 1258, 1259, Note 461.]
The court instructed the jury that, if ManniMn, the administrator, and Giddings confederated together in order to cheat the estate, and procured an order of sale of the certificate by a false representation to the chief justice that there were valid claims against the estate, allowed and approved, when they knew there were no such claims, and thus fraudulently procured an order of sale that Giddings might purchase the certificate, this would be fraudulent, would render the sale void, and the jury must find a verdict for the plaintiff.
*754The court further instructed, the jury that, ifW. H. Steele were in fact dead at the date of the rendition of the judgments against him and Hood in the District Court of Washington county, and there was no legal representative made party defendant, then all said judgments were null and void as against the estate of Steele, and 'the original notes or claims sued upon were the only evidence of the owner’s debt against Steele’s estate; that, if the notes were due before the death of Steele, they were, on the 3d February, 1846, when letters were granted, barred by the statute of limitation, and their subsequent allowance by the administrator and approval by the probate judge would not make them valid claims against the estate of Steele, or constitute any reason for the administrator to procure an order to sell the property.
The list of debts attached to the petition for an order of sale is composed almost entirely of these very judgments charged by the plaintiff to have been under the control of Giddings, and, if not valid as judgments or approved claims against the estate of Steele, that fact would be very material in determining the motives and objects of the administrator and Giddings in procuring the order and making the sale under it of the certificate.
We believe the court erred in its ruling upon the validity of the judgments themselves, as well as of the approval of them by the probate judge. Suits had been-instituted and process served on Steele, and he appeared by attorney in all the cases but one. The service of process on Steele and his appearance by attorney brought him within the jurisdiction of the court. (4 Tex., 245; 8 Id., 36.)
The death of Steele after this service and appearance did not operate to abate the suits, but the act of May 24, 1838, provided that suits for that cause should not abate; but, on suggestion of the death of the party, his representative would be made a party, (4 Tex., 485,) and if not made a party within a reasonable time, the cause, on motion, could *755have been dismissed for want of proper parties. (6 Tex., 400;) [Paschal’s Dig., Art. 7, Note 225.]
The death of the defendant, Steele, was suggested, but without having made his representative a party or dismissing the causes as to Steele, the judgments were rendered against him and Hood for the debts sued on. We are not prepared to say that these judgments are of themselves nullities and void, hut, from the rulings of this court in a number of cases, we are inclined to the opinion that they were not void, but only voidable, and could have been annulled and set aside by a proceeding coram nobis, that is, by proceedings instituted in the same court where the voidable judgments were rendered, and showing the fact that Steele was dead at the rendition of the judgments. Then they would have been set aside and the error corrected. (5 Tex., 289; 18 Id., 753; 21 Id., 154; 24 Id., 468; 1 J. J. Marsh., 29; 3 Littell, 145; 2 Tidd’s Prac., 1107; Moke & Brother v. Brackett, at Austin term, 1866, ante p. 443.)
If a proceeding coram nobis had been instituted in the District' Court of Washington-county within a reasonable time after the dates of the judgments, and the fact of Steele’s death made to appear before the rendition of the judgments, it would have been the duty of the court to correct the error, by setting aside the judgments and reinstating the causes on the docket, making the representative of Steele a party, and proceeding to judgment. (Martel v. Hernsheim, 9 Tex., 294; 5 Id., 294.)
If this course had been taken in the proper time, it is seen the judgments would have been set aside, but the causes would have been reinstated on the docket, and the notes of action would not have been barred by the statute of limitation; but judgments would have been rendered against the representative of Steele, as is to he inferred from the fact that there is no evidence to show the debts were not just; hut that they were barred by limitation.
We are of opinion that the court was equally wrong in re*756spect to the force and effect of the allowance of these claims against the estate, and approval by the probate judge. It has been repeatedly decided by this court that such claims are valid and quasi judgments against the estate, that cannot be annulled in the county court, and only by a direct proceeding in the district court to set aside the approval on the grounds of fraud or mistake. (5 Tex., 487; 11 Id., 116;) [Paschal’s Dig., Arts. 480, 1312, Notes 334,485.]
This proceeding, in the district court to set aside these quasi judgments, like any other judgment, must be instituted within a reasonable time after the rendition of the judgment or approval of the claim. It cannot be supposed that the creditor can at any length of time preserve the evidence of the justness of his claim, and show that it falls within some' of the exceptions to the statute of limitation, when it appears on its face to be barred, although the rule is, that the administrator or contes ant of the judgment must show that the claim does not f ill within any of the saving exceptions to the statute of 'imitation. (11 Tex., 116; 14 Ich, 315; 16 Id., 138; 17 Id., 138; 23 Id., 496, 254.)
The heir of the estate can institute these direct proceedings in the district court to annul and vacate an approval of a claim fraudulently made by the administrator in favor of the creditor. (18 Tex., 75.)
From these authorities, we are of opinion that the court erred in ruling that these judgments were nullities, and that the allowance and approval of them did not make them valid claims against the estate of W. H. Steele, and constituted no reason for the administrator to procure an order to sell the property. It was well calculated to mislead the jury upon the question presented to them of a fraudulent combination between the administrator and Giddings in procuring the order of sale, as well as the sale of the certificate under it; and we have doubts if that *757charge did not have a great influence upon the jury in finding their verdict in the cause.
The court instructed the jury, that if the plaintiff is the only heir of the deceased, W. H. Steele, and the said certificate was the property of his estate, he would he entitled to recover the land, “ unless it be shown that said certificate was purchased by the defendant, Giddings, from the administrator of the estate of W. H. Steele, deceased, in obedience to an order of the probate court of Burleson county, and that such purchase was made in good faith and without fraud; but if this be shown, you will find for the defendant.” The rule is believed to be almost without an exception, that all contracts are presumed, pdma fade, to be fair, and not unlawful or fraudulent, and the person who may attack them as tainted with fraud has the burden of proof upon him of proving the existence of the fraud by positive or circumstantial evidence. But here the rule is reversed, and the burden of showing that Giddings’ purchase was in good faith is upon him, and the jury virtually instructed to find a verdict against him, unless he thus proves his good faith and fairness in the purchase of the certificate. There certainly was error in .this part of the charge of the court to the jury.
We do not wish to be understood as holding that the plaintiff cannot be permitted to prove by competent evidence that the judgments in the District Court of Washington county were unjust, and fraudulently obtained, or that the approval of them was unjust, and fraudulently obtained, and by means of them that the order of sale was fraudulently obtained, and the sale consummated by a fraudulent combination between the administrator and Giddings' to defraud and cheat the estate out of the certificate; for it has been often asserted that fraud will vitiate judgments, and transactions and proceedings based upon them, however authentic they may appear to be. (4 Tex., 276; 9 Id., 247; 24 Id., 468.)
*758But we do mean to say that the judgments of the District Court of Washington county of themselves, and the approval of them hy the prohate judge, are not invalid claims against the estate of Steele, deceased, as charged hy the court; ■ nor are they facts or circumstances indieating fraud on the part of the administrator and Grid-dings, as the jury are lead to believe by the charge of the court.
The judgments of courts will not be set aside on mere surmise or suspicions of fraud, but there must be evidence to establish the fraud that does “ naturally and reasonably tend to that conclusion.” (1 Story’s Eq., § 190; 1 Hov. on Frauds, 24; 18 Tex., 179, 765, 847.) And it must not be “ legal and technical, but actual and positive, fraud in fact.” (3 Pet., 341.) Fraud is not to be presumed, but must be proved.
If these judgments were justly due and not mere fabrications, a mere device of false claims against the estate of W. II. Steele, it is not perceived how fraud can be inferred from the fact that Gtiddings had them in charge for colleetion, or as his own property, and secured an order of the county court to sell the certificate to pay them, and at the sale became the purchaser of the certificate at a fair and the highest bid, without any unfairness among the’ bidders at the sale, or effort made by him or the administrator to stifle a fair competition at the sale. These circumstances would seem to lead “naturally and reasonably” to a different conclusion. If he had the control of these judgments for collection, they being just and not fraudulently obtained, it was Gtiddings’ right and it was his duty to collect them, and, if necessary, to use all legal efforts on his part to procure an order of sale of property sufficient to pay them, and he had as much right to bid for the property at the sale as other people; and, if the sale were open and fairly made, without stifling competition among the bidders, we cannot see how these facts can be any evidence *759of fraud. They do not " naturally or necessarily tend to that conclusion,” hut in our estimation to the very reverse.
Dor errors in the proceedings helow the judgment is reversed, and cause remanded for further proceedings in accordance with this opinion.
Reversed and remanded.