The bill was dismissed by the chancellor, on the ground, that the allowance of the claim of the plaintiff against the estate of Young, by the commissioners appointed by the judge of the Orphans’ Court, and its confirmation by that court, was not evidence of his being a creditor, so as to allow him to pursue the lands of the intestate in the possession of a fraudulent vendee. It may be true, that a judgment rendered according to the course of proceedings of the common law, against the executor or administrator, is not evidence against the heir or devisee, so as to charge the lands of the decedent (Mason v. Peters, 1 Munf. 437; Osgood v. Manhattan Co., 3 Cowen, 612; Neal v. McCombs, 2 Yerg. 10); though the contrary was held by Judge Marshall in Garnett v. Macon, 2 Brock. 185-213. We can see good reasons why a judgment in personam only, against a party who does not represent the real estate, should be entitled to no weight against another person, for the purpose of charging-lands which are devised or descend to him. But there is a material distinction between a case of that character, and the ascertainment of a demand against the representative of the estate in the regular course of administration; and under the authority of our statutes, in case of insolvent estates, the court has full power to act upon the real estate, as well as the personal property, and to ascertain the amount of indebtedness of the decedent with respect to its action on both. And when this is done, if not binding and conclusive on all parties interested in the estate, it is at least prima fade evidence against them. — Brazeal v. Brazeal, 9 Ala. 491.
If it would have this effect against the heir or devisee, is there any reason why it should not have the same operation as against a fraudulent vendee ? Does his fraud invest him with higher rights ? The object of the bill is, to reach property which could not be administered by the rightful representative. — Marler v. Marler, 6 Ala. 367; Watts v. Gayle, 20 Ala. 817. The party in possession stands in the position *430of an executor de son tort; and as snob, the same rules apply to him, as if he was the rightful representative, except so far as they are affected by the fraud. -If, however, he was one of two rightful representatives, he would be in privity with the other executor, so as to make a judgment against the latter, although in another State, evidence against him (Hill v. Tucker, 13 How. 458); and, a fortiori, would it be so, when rendered against the estate in the same jurisdiction. — Stacy v. Thrasher, 6 How. S. C. R. 44, 59, 60.
It is urged, however, that the proceedings in relation to the claim of the appellant were void, for the reason, that the judge had no authority to appoint commissioners to audit the claims against the estate, in the distribution of which he was interested as a creditor ; and for the additional reason, that the record of the Orphans’ Court, which was before the chancellor in evidence, did not show; the report of insolvency by the administrator.
In relation to the first objection. The general rule unquestionably is, that it is improper and irregular for a judge to try any cause, in which, under, the law, he had an interest which would disqualify him as a witness. — Dimes v. The Grand Junction Canal Company, 16 Eng. L. & Eq. R. 63. But the rule, as it is founded upon the same principles which apply to witnesses, does not relate to orders purely formal in their character, (Underhill v. Dennis, 9 Paige, 202); and it is doubtful whether it would extend to a case where no other judge could try and determine the cause. — Paddock v. Wells, 2 Barb. Ch. 331. If the judge is by statutory inhibition deprived of authority to act, then the proceedings are void (Claunch v. Castleberry, 23 Ala. 85); but when there is no prohibition by law, the proceedings are voidable only, and are valid until avoided. — Dimes v. The Grand Junction Canal Co., supra. Were it otherwise, the greatest inconvenience and difficulty would ensue, since, in most cases, the parties acting under the proceedings would be ignorant of the want of authority until the act was done. The case we have last referred to, is a clear and direct recognition of the rule, with the limitation we have expressed, and is entitled to the highest consideration ; being the judgment of the House of Lords, consisting of the Lord Chancellor, Brougham, and Campbell, *431assisted by the judges, after full discussion by eminent counsel, the case itself being one of great interest and importance. If we concede, therefore, what we consider somewhat doubtful, that the fact that the judge of the Orphans’ Court was a creditor of the estate, would be such an interest as might disqualify him from the appointment of commissioners to audit the claims; still the order was not void, unless there was some statute, which deprived him of the pow;er to act in the premises. We have been referred to the act of 1833 (Aik, Dig. 253, § 41), as we suppose, with this view ; but we do not think it has anything to do with an order like the one we are considering. It does not apply to the auditing of accounts before commissioners, but only to settlements which the administrator is required to make with the judge.
As to the objection grounded on the want of the report of insolvency: We do not think it is tenable. It is true that we held, on error, in Clarke v. West, 5 Ala. 117, that the peculiar jurisdiction of the judge in relation to insolvent estates, depended upon the report of insolvency by the personal representative ; and that if the record failed to disclose the report itself, the proceedings were irregular, and subject to reversal on error. But the opinion contains a very clear intimation that they would not necessarily be void, if it appeared, as it did in that case, from the recitals in the record, that such a report had been made. This is the case here, as the decree of insolvency rendered by the judge of the Orphans’ Court, upon a fair construction of its terms, appears to be based upon a return of the administrator to that effect; and although the recital of this fact might not be sufficient to sustain the action of the court in this respect in a direct proceeding to reverse it, yet it is enough against any attempt to impeach it collaterally, where every presumption in its favor must be made. — McCartney v. Calhoun, 11 Ala. 110-119.
In relation to the merits of the case upon the main question, we say nothing, as they were not considered by the chancellor. We simply determine that he erred in dismissing the bill on the grounds we have noticed, leaving all other questions open for his determination.
The decree of the chancellor must be reversed, and the cause remanded, the appellees paying the costs of this court.