dissenting.
The land in controversy was the property of Uriah Blanchard at the time of his death, and Avas sold by Thomas Blanchard, his administrator, at administrator’s sale, and purchased by McDaniel. The plaintiff, a judgment creditor of Uriah Blanchard, levied upon the land as his property, Avhieh was claimed by McDaniel, the judgment having been obtained after the death of Uriah Blanchard against his administrator. On the trial of the claim the jury found the land not subject to the execution. The plaintiff made a motion for a new trial, which Avas overruled, and the plaintiff excepted.
The main question made on the argument before this Court was whether the order of the Ordinary granting leave to sell the land, as set forth in the record, was sufficient, under the law, to divest the title of the'heirs of Uriah Blanchard thereto, so as to enable his administrator to convey a legal title to the purchaser thereof at administrator’s sale. The order of the Court of Ordinary is in the following words : “Ata regular term, October 5th, 1863, the application of Thomas A. Blanchard, administrator of Uriah Blanchard, to sell the *209land belonging to the estate of said Uriah Blanchard, having been published according to law, and no one coming forward and objecting : It is ordered, that Thomas A. Blanchard, administrator, have leave to sell the lands belonging to the estate of Uriah Blanchard, deceased.” There was no written application made to. the Ordinary by the administrator, stating the grounds of the application for leave to sell the land. On the death of Uriah Blanchard the title to the land descended directly to his heirs, subject to be administered by his legal representative for the payment of his debts, and the purposes of distribution: Code, 2220. It is quite clear that the,title of the heirs to the land of the intestate could not be divested by the administrator, but for the payment of the debts of the intestate or for the purpose of distribution.
How, and in what manner, does the law prescribe that the administrator shall proceed in order to divest the heirs of the title to the land for the payment of the debts of the intestate or for distribution ? The law has conferred upon the Court of Ordinary original, exclusive and general jurisdiction as to the sale and disposition of the real property belonging to, and the distribution of, deceased persons’ estates: Code, 366. The law has not only conferred upon that Court jurisdiction over that particular subject matter, but has also specifically declared how, and in what manner, that jurisdiction shall be exercised in regard to that particular subject matter, as will be hereafter shown by reference to the several sections of the Code.
It will be noticed that the order of the Court of Ordinary does not recite, or show upon its face, that .it was shown to the Court, that it was necessary for the payment of the debts of the intestate, or for the purposes of distribution, that'the land should be sold, and there is no petition in writing made by the administrator to the Court, setting forth the reasons for his application for leave to sell the land, so as to authorize the presumption that there was any evidence before the Court to establish the fact that it was necessary to sell the’ land for the payment of debts, or for distribution. But it is said that when the order of the Court of Ordinary was offered in evidence in *210the Superior Court, that Court was bound to presume that the Court of Ordinary had sufficient evidence before it to authorize the granting the order to sell the land, because the Court of Ordinary is a Court of general jurisdiction. But is the Court of Ordinary a Court of general jurisdiction under the provisions of the Code, as is the Superior Court and similar Courts ? Courts of Ordinary have only original, exclusive, and general jurisdiction of certain specified subjects matter, as defined in the 366th section of the Code.
In Grier vs. McLendon (7 Georgia Reports, 362) this Court held, and decided, that the Courts of Ordinary in this State were Courts of limited jurisdiction, and that the facts necessary to give the Court jurisdiction of the particular subject matter should affirmatively appear on the face of its. judgments and proceedings when offered in evidence in any other Court, and such was the uniform rulings of this Court until the passage of the Act of 1856 — making Courts of-Ordinary Courts of general jurisdiction as to testate and intestate estates. Are Courts of Ordinary in this State Courts of general jurisdiction, in the legal sense of that term, or are they not still Courts of limited jurisdiction? Is not the jurisdiction of Courts of Ordinary limited to testate and intestate estates by the Act of 1856? All that can be claimed under the Act of 1856 is, that the judgments of the Court of Ordinary shall have the same effect as to testate and intestate estates, as the judgments of Courts of general jurisdiction. Subsequent to the enactment of that statute, a different rule prevailed, and the Courts presumed in favor of the judgments of the Court of Ordinary when the facts did not affirmatively appear on the face of its judgments and proceedings. This was considered an evil, a mischief, which required a remedy, and when the Code was adopted by the Legislature, the general jurisdiction of Courts of Ordinary was limited to the particular specified subjects matter enumerated in the 366th section; and the other sections of the Code' expressly declare how, and in what manner, that jurisdiction shall be exercised by the Court of Ordinary in relation to the specified subjects matter of which it has jurisdiction.
*211The 4043d section declares, that “ every application made to the Ordinary for the granting of any order, shall be by petition in writing, stating the grounds of such application and the order sought.” The 2518th section declares, that “if at any time it becomes necessary for the payment of the debts of the estate, or for the purposes of distribution, to sell the land of the decedent, the administrator shall, by written petition, apply to the Ordinary for leave to sell, setting forth in the petition the reason for such application; and notice of the same shall be published once every two .weeks for two months before the hearing in the gazette in which the county advertisements are published. If no objection is filed, and the Ordinary is satisfied of the truth of the allegations in the petition, an order shall be passed granting the leave to sell, specifying therein the land as definitely as possible.” “The 4044th 'section declares, that “the order of the Ordinary, shall always recite the compliance with the provisions required.” Now, if these provisions of the Code mean anything, and have the force and effect of a valid law, the Courts should respect and enforce it.
The order of the Ordinary authorizing the sale of land by an administrator for the payment of debts, or for distribution should, by the positive law of the State, recite therein that it has been made to appear that it is necessary for the payment of debts, or for distribution, in order to divest the title of the heirs and convey a good title to the purchaser, for such are the requirements of the law, to authorize the Ordinary to grant an order to sell the land of the intestate. The title of the heirs to the land can only be divested in the manner provided by law, and the purchaser thereof at the administrator’s sale can only acquire title to the land in the manner provided by law.
The law requires that before the Ordinary shall grant an order to sell the land, .it must be shown that it is necessary for the payment of the debts of the intestate, or for distribution, and that fact must appear in the order of the Ordinary, for the law declares, that the order of the Ordinary shall always recite the compliance with the provisions required, and *212not that it shall be left to the Courts to presume a compliance, but that the order shall always reeite a eomplianee with the provisions required by the law. This provision of the Code is a wise one for the protection of the title of the heirs of the intestate, and should be strietly enforced, not only because it is the declared will of the supreme power of the State, but because real estate is becoming every day more important to our people as an element of property. The Courts have no legal right to presume that the Ordinary has done what the law positively requires shall affirmatively appear in the order to be done. It is not necessary to say, in this case, that the judgment of the Ordinary is void, for want of jurisdiction, all that it is necessary to say is, that the order under the law was not sufficient to divest the title of the heirs and to authorize the administrator to convey a good title to the purchaser of the land at the administrator’s sale.
All that the order recites in this case is, that the administrator has published, his application to sell the land of the intestate according to law; it does not even reeite that the administrator has made application to the Ordinary for leave to sell the land by petition in writing, or otherwise. It does not recite that it was made to appear that it was necessary to sell the land for the payment of debts, or for distribution, the specific provisions required by the law to .authorize the administrator to sell it and divest the title of the heirs. Yet it is said the Courts, are' bound to presume what the law requires should be affirmatively recited in the order. Why not presume that the faets necessary to divest the title of the heirs were not shown to the Ordinary, especially, when the law requires that the same shall be recited in the order? Why is not the latter presumption quite as legitimate as the former? The question is not what was the law relating to this subject prior to the adoption of the Code, but the question is, what is the law now applicable to it since the adoption of the Code? Construing the different sections of the Code in relation to the subject matter as one law, it is quite apparent, in my judgment, that it was the clear intention of the Legislature that *213the title of the heirs to the lands of an intestate should not be divested by the administrator, unless it was made satisfactorily to appear to the Ordinary that a sale of the land was necessary either for the payment of debts, or for distribution, and to guard against fraud and collusion on the part of the administrator with others, it was expressly provided that he should make his application in writing, as provided in the 2518th section, and that the Ordinary should recite in the order granting leave to sell-that there had been a compliance with the law by the administrator, to authorize such sale, as required by the 4044th section, and this is the moré apparent from the fact that the Ordinary is required to keep a record of the proceedings and orders, as provided in sections 4046, 4047. The Legislature did not intend that so important a matter as divesting the title of heirs to their land should depend on the presumptions of the Courts, but have required that the facts necessary to authorize a sale of the land by an administrator shall affirmatively appear and be recited in the order of the Ordinary granting leave to sell the land. In other words, the Legislature has required that to be done in relation to the orders and judgments of the Courts of Ordinary in this State since the adoption of the Code, which the common law required to be done when Courts of Ordinary were held to be Courts of limited jurisdiction.
If the positive requirements of the Code are to be understood’as an expression of the intention of the Legislature in regard to this question, it is not to be left to the presumption of the Courts, whether the facts necessary to authorize a sale of the intestate’s land by the administrator had been shown to the Ordinary by the production of the mere order alone without more, but that the order shall recite upon its face the fact that it had been shown to the Ordinary that it was necessary for the payment of debts, or for the purpose of distribution, that the land should be sold, otherwise the Ordinary had no authority, under the law, to grant the order to the administrator to sell the jand, and his authority to grant it should appear on the face of the order, for the simple reason *214that the law requires it. Purchasers at administrators’ sales are bound to know the law as well as other people, and it is no hardship to require them to look to the administrator’s authority to sell the land of his intestate and see whether it is such as the law requires. The loose practice in the Courts of Ordinary in granting orders to administrators for the sale of the lands of their intestates, the Legislature intended to remedy and prohibit; but so long as the Courts ignore that intention, and presume that to have been done which, the Code positively requires shall affirmatively appear on the face of the proceedings and order to be done, there is no prospect of any reformation in relation to that matter, and thus a very wise provision of the law will be defeated, and the title of the heirs to the lands, of their deceased ancestor will depend on the presumptions of the Courts, instead of on a compliance with- the positive requirements of the law enacted for their protection. In my judgment, the order of the Ordinary, set forth in the record, was not sufficient, under the provisions of the existing laws of this State, to divest the title of the heirs to the land of the intestate so as to authorize the administrator to make a legal sale thereof to the purchaser, and that the land was subject to the execution levied thereon as the property of the intestate. I am, therefore, of the opinion that the judgment of the Court below should be reversed.