The argument, urged on behalf of the appellee, that the proof did not correspond with the declaration, and that therefore the charge of the court in favor of the defendant was correct, is based upon the supposition, that the cause of action set forth in the declaration pertains to the plaintiff individually, while the proof conduces to show a right of recovery in him as administrator. The declaration .avers, that the plaintiff was possessed of the slaves, “ as of his own property as such administrator as aforesaid, and being so possessed thereof” casually lost them ; that they came to the possession of the defendant, by finding ; and that the defendant, knowing them to be the property of the plaintiff “ as admin*518istrator as aforesaid,” did not deliver them to him ; and it makes proferí of the letters of administration. This case is distinguishable from those in which mere words of description, such as administrator, governor, &c., succeed the name of the plaintiff in the declaration. Here, in those averments which constitute the gist of the action, the words “ as administrator" are used, clearly indicating a cause of action in the plaintiff in his representative capacity. The' declaration, in this particular, corresponds with the precedents in actions by administrators. — See 1 Saunders’ Pl. and Ev. 499-500 ; 2 Ohitty on Pleading, 841-842. We make the following quotations from 1 Saunders’ PI. and Ev. 498, as applicable in principle to the question, and decisive of it: “ In every declaration by an executor or administrator as such, he should describe himself accordingly in the commencement, though, indeed, it will suffice if the facts appear in other parts of the declaration ; and in stating a debt or promise to him, the word ‘ as executor,’ &c., must be used, or the omission will be fatal even after the verdict.” — 1 Ohitty on Pleading, 20, notes z and a ; Worden v. Worthington, 2 Barbour’s S. C. R. 368.
The charge of the court below, that if the jury believed the evidence, they must find for the defendant, is also defended upon the ground, that the plaintiff declares upon the prior possession of himself in his representative capacity, while the proof shows that ho was never in actual possession, and that he had no right except that which results from the title of his intestate. “ The property in the slaves sued for draws to it a possession in law; therefore, an administrator may declare on his own possession as administrator, though in fact he has never had possession.”- — -2 Chitty’s Pleading, 840, note y ; 2 Saunders’Pl. and Ev. 873. It follows from this indisputable proposition of law, that the averment of the declaration is sustained by proof of title in the plaintiff as administrator, and the consequent right to the immediate possession of the property. — Shelden v. Hoy, 11 Howard’s Practice Rep.
Having disposed of the minor points suggested on the briefs of counsel, we proceed to consider the question, whether the title to the property in litigation was in the plaintiff or the defendant.
*519Under the laws of this State, a sale by an administrator, of the personal property of the estate, without the authority of an order of court, or of a will, Tests in the purchaser no title which is available against an administrator de bonis non who comes into office after him who made the sale. — Clay’s Digest, 223, § 13 ; ib. 224, § 15 ; Lay’s Ex’r v. Lawson’s Adm'r, 23 Ala. 377 ; Fambro v. Gantt, 12 Ala. 304; Woolfork v. Sullivan, 23 Ala. 548 ; Wier v. Davis & Humphreys, 4 Ala. 444 ; Ventress v. Smith, 10 Peters, 175 ; Swink’s Adm’r v. Snodgrass, 17 Ala. 653.
A sale, made under an order of court, which is void for want of jurisdiction in the tribunal making it, must, in a case like this, be regarded as if there had been no order. There was an order of sale in this case ; and the sale under it must be valid or void, according as the order is valid or void.
The order of the orphans’ court, set up as authority for the administrator’s sale, through which the defendant claims title, is as follows : (Here the orders above set out are copied.) The statute, from which 'the invalidity of this order is argued, is in the following words: “ It shall not be lawful for any executor, or executors, administrator, or administrators, guardian, or guardians, to take the estate, or any part thereof, of any testator or intestate, at the appraised value, or to dispose of the same at private sale, except when the same is directed by the will of the testator. Bui in all cases where it may be necessary to sell the whole, or any part, of the personal estate of' any testator or intestate, it shall be the duty of the executor, administrator, or guardian, to apply to the orphans’ court of their county, for an order of sale, and upon obtaining the same, to advertise the time and place of such sale,” Src.
This statute does not confer upon the orphans’ court authority to order the personal property to be sold, without limitation or restriction. On the contrary, it is clearly provided, that the order of sale is to be made on the application of the administrator, and where the sale is necessary. This idea is coroborated by the fact, that there is another statute, which directs that, if the estate is not in debt, “ so as to enforce a sale of any part of the estate,” the judge shall, in a given time, take steps to effect a division. In the 'case of Lay’s Ex’r v. Lawson, 23 Ala. 390, Judge Goldthwaite, re*520ferring to the statute copied above, says : “We entertain no doubt, that it was the object of the legislature, not only to prevent private sales of the property belonging to estates by administrators, but any sale whatever, unless required by the condition of the estate, or the nature of the property sold.” In the case of Steele v. Knox, 10 Ala. 614, Judge Ormond, in reference to the same subject, uses the following language : “ Our statutes .regulating this subject are evidently framed .upon the supposition, that there shall be no sale of the personal property of a deceased, unless there is a necessity for it, and do not give to the administrator the exclusive right to judge of the necessity, but require him to apply to the orphans’ court for permission to sell, and authorize the power ‘ when it may be necessary.’ ’’
The jurisdiction conferred by the statute under consideration is not authorized by, or deducible from, the act of 1806, (Clay’s Digest, 800, § 21), which confers certain specific powers, and clothes the court with full jurisdiction of all testamentary and other matters pertaining to an orphans’ court or court of probate. At common law, an administrator had full authority to sell the personal property of the estate, and his power in that respect was limited only by his discretion. The directing an administrator to sell, did not pertain to the jurisdiction of any tribunal. Looking, therefore, to the common law, and to the authority exercised by the ecclesiastical courts, in construing the words, “ full jurisdiction of all testamentary and other matters pertaining to an orphans’ court or court of probate,” we can find in those words no authority for the jurisdiction to order sales by an administrator. Therefore, our decisions, in reference to the validity of orders made under the act of 1806, have no application here, and are not affected by this opinion. — Hilliard and Wife v. Binford’s Heirs, 10 Ala. 977 ; Herbert v. Hanrick, 16 Ala. 591; Eslava v. Elliot, 5 Ala. 264; Miller v. Jones, 26 Ala. 247.
The power to order the sale of personal property is the creature of the statute, and the grant of the power, as we have already concluded, is accompanied by a specification of the circumstances under which it is to be exercised ; and those circumstances are, an application by the administrator, and the necessity of the sale. The order of sale in this case *521does not indicate that an application was made by the administrator, nor that there was any necessity, growing out of the condition of the estate or the character of the property, for the sale. The order of sale, and every word in it, may be true, and at the same time it may also be that the administrator neither sought nor desired a sale of the property, and that the judge of the orphans’ court ordered the sale of his own volition, in the absence of any necessity for it. It is unnecessary, therefore, to inquire whether the application of the administrator and the necessity must both be shown, or whether the jurisdiction is maintainable in the absence of either. The existence of neither of them is shown in the order contested in this case. The invalidity of such an order seems to result from an application of the undeniable doctrine, that the orphans’ court was a court of limited jurisdiction, and that the facts upon which the statute makes its jurisdiction depend, must appear on the record.
But the very same question that we are considering, in reference to the same order, was before this court in the case of Wyatt’s Adm’r v. Steele, 26 Ala. 639. The court say, in that case : “ Whether a sale was necessary, was a question for the determination of the orphans’ court; a question upon which its jurisdiction depended. The rule is well settled, that when the jurisdiction of the court depends upon a fact, which such court is required to ascertain and settle by its decision, as a preliminary to its jurisdiction, then the exercise of its jurisdiction implies the previous ascertainment of the preliminary jurisdictional fact, and the decision of the court as to the jurisdictional fact cannot collaterally be called in question.” To what extent that decision should be regarded as an authority in this case, can be best determined by comparing it with later and earlier decisions of this court, and testing it by principles recognized in our own and other courts.
In the case of Gunn v. Howell, 27 Ala. 676, it was held, that the judgment of the court of a sister State, in a statutory proceeding by garnishment, was void, because the record did not affirmatively show a return of nulla bona on the creditor’s execution, which was regarded as a jurisdictional fact in the case. The judgment in that case was rendered by a court of general jurisdiction ; but because its proceedings in that *522particular case were under a special authority conferred by statute, it was deemed, quoad hoc, an inferior court; and it was held, that all the facts necessary to sustain the jurisdiction of the court, must appear from its proceedings, and that nothing in proceedings of that character was to be taken by intendment.
In Hamner v. Mason, 24 Ala. 480, an order of the orphans’ court, discharging the sureties of a guardian, was regarded as valid, because the taking of the new bond, which was a jurisdictional fact, was shown by the record. In that case, the law applicable there, as well as here, is thus laid down : “ Where the fact upon which the power to act depends, is referred by the law maker to be determined by the court or .officer, the determination of the fact by such court or officer is res adjudicata, and cannot be questioned. The question, whether a new bond was given, was referred to the court, and was determined by it. This fact appears affirmatively from the record, and is not traversable.'”
Judge Dargan, in Wilson v. Judge of the County Court of Pike, 18 Ala. 160, in reference to a bastardy proceeding, says : “ It is true the judgments of courts of limited jurisdiction must show the facts and circumstances which authorize the court to take cognizance of the matter ; in other words, they must show the jurisdiction of the court; otherwise, the judgment or sentence is a nullity.”
It is decided in the case of Lamar v. The Commissioners’ Court, 21 Ala. 776, that courts of limited jurisdiction must show upon the face of their proceedings sufficient to support their jurisdiction, or their judgments will be void ; and that a judgment revoking a ferry license was void, because the proceedings did not show that the owner of the franchise had had ten days notice of the requisition to give a new bond. .The statute upon which that decision is based, makes the failure to give a new bond, after the notice prescribed, the ground, or reason, for revoking the license. So that, in this case, the jurisdictional fact was itself made by law the reason, or ground, upon which the court was to exercise the power conferred.
In the case of McCartney v. Calhoun, 11 Ala. 110, a question, strikingly similar to that under consideration, was de*523cided. The question in that case was as to the validity of an administrator’s sale of slaves, under an order of the court of ordinary in Georgia. The order in that case, as in this, was simply an authority, or direction to sell, without any statement of the reasons for which it was made. The Georgia statute prohibits the sale of slaves by an administrator, but authorizes the court of ordinary to direct their sale, where the other personal property, together with the hire of slaves for twelve months, is insufficient to discharge the debts, or where an equal division could not be made. The sale was held void, because the jurisdictional facts were not shown in the proceedings of the court. The court say, in reference to the very question which we are now considering : “ The argument urged, that we must presume those facts to have been done without which the court of ordinary could not have directed the Sale of the slaves, is at war with the entire current of authority, and would confound all the distinctions between courts of general and those of limited jurisdiction.”
We cite, also, as fully sustaining the principle of the foregoing authorities, decisions of this court in the following cases : Commissioners of Talladega v. Thompson, 15 Ala. 139; same case, 18 Ala. 696-697 (see, also, the quotations from Bacon’s Abridgment in this case) ; Heirs of Bishop v. Hampton, 15 Ala. 761; Wyman v. Campbell, 6 Porter, 219 ; Taliaferro v. Bassett, 3 Ala. 670 ; and Owen v. Jordan, 27 Ala. 608.
From the decisions of this court, collected and cited above, it will be found that there is a long chain of cases, uniformly maintaining, that the orphans’ court was a court of limited, or special jurisdiction ; that therefore, to the validity of its judgments, it is necessary that its jurisdiction should be shown, in each case, upon the face of its proceedings ; and that the facts necessary to support the jurisdiction will not be supplied by intendment. The cases are in irreconcilable conflict with the doctrine of Wyatt v. Steele, supra, that the exercise of jurisdiction implies the previous ascertainment of the jurisdictional fact. That doctrine abrogates the distinction between courts of general, and of special, or limited jurisdiction. In a quotation from 1 Strange, in the Commissioners of Talladega v. Thompson, 18 Ala., that distinction is *524lucidly stated, as follows : “ Nothing shall be intended to be out of the jurisdiction of a superior court, but that which specially appears to be so ; and on the contrary, nothing shall be intended to be within the jurisdiction of an inferior, but that which is so expressly alleged.” It is conceded, that if the court of limited jurisdiction is charged with the ascertainment of jurisdictional facts, and its proceedings show that these facts were ascertained, they cannot be denied ; because the making of the jurisdiction of the court depend upon a preliminary fact, implies authority to ascertain that fact. A misapprehension of this principle, doubtless, led the court, in Wyatt v. Steele, into the position, that the exercise of a jurisdiction dependent upon a preliminary fact implies the ascertainment by the court of that fact.
The case cited in support of the opinion in Wyatt v. Steele, does not sustain it. The case is Brittain v. Kinnard, 1 Brod. & Bing. 432, (5 E. C. L. 137). It really asserts nothing more, than that the ascertainment of jurisdictional facts, by a court of limited jurisdiction, is conclusive. “ The general principle,” says Dallas, C. J., in that case, “ applicable to cases of this description, is perfectly clear. It is established by all the ancient, and recognized by all the modern authorities; and the principle is, that a conviction by a magistrate, who has jurisdiction over the subject-matter, is, if no defects appear on the face of it, conclusive of the facts stated.” And to the same effect are the decisions of the other judges. The proceedings of the court disclosed the jurisdictional facts ; and the question was, whether they could he contradicted.
The case of Wyatt v. Steele has already been departed ■from by our predecessors, in the cases of Owen v. Jordan, 27 Ala. 608, and Gunn v. Howell, supra ; and is, in effect, overruled as to the principle upon which it proceeds. The question now is, not whether we shall overrule it, but whether we shall repeat the principle decided. We deem it our duty to dissent in terms, as has heretofore been done in effect, from so much of the opinion in Wyatt v. Steele, supra, as is quoted above ; because we cannot adhere to it without overruling a large number of decisions of this court, some of them later than that case, which harmonize among themselves, are well recognized by the profession, and rest upon undeniable principles.
Note by the Reporter. — The foregoing opinion was delivered at the June term, 1856, but was afterwards withdrawn on the petition of the appellee's counsel for a rehearing. The substance of the arguments submitted with the petition is incorporated in the preceding briefs. At the present term, in response to the application for a rehearing, the following opinion was pronounced:That the statute of limitations does not commence running against the plaintiff, until the appointment of an administrator de bonis non, is settled by the decision in Lay v. Lawson, 24 Ala. 184, and other authorities cited.
For the error in the charge of the court below, its judgment is reversed, and the cause remanded.
StoNE, J., not sitting. WALKER, J.The importance of the decision in this case ; the arguments against the opinion delivered at the last term, by the counsel for the appellee, and by other members of the bar, who maintained its incorrectness ; and a sincere desire upon our part to give to all the arguments a most deliberate and- thorough examination, induced us to set aside the judgment of reversal, and to hold the case under advisement until the present term of the court. Our reflections, and examination of authorities, have confirmed us in the opinion expressed'at the last term ; and, while acknowledging the learning and ingenuity of the arguments urged against it, we regard it as a duty to adhere to that opinion.
It has been argued, that the orphans' court ought to be considered a court of general jurisdiction. The argument is drawn from the 9th section of article V of the constitu-tion, which confers upon the general assembly power to establish “a court of probate for the granting of letters testamentary and of administration, and for orphans' business and the act of 1806, (Clay's Digest, 300, § 21,) which creates the orphans' court, and gives it “ full jurisdiction of all testamentary and other matters pertaining to an orphans! court or court of probate.” It is contended, that the orphans’ court was made by this statute, enacted in pursuance to the *526express provisions of the constitution, a court of general jurisdiction. Without contesting that proposition, let us inquire what is its effect. If the court is made one of general jurisdiction'over all matters pertaining to an orphans’ court, it acquires by the comprehensive grant of power the same jurisdiction which pertained to similar courts in England, whence we derive the fundamental principles of our jurisprudence. As to the powers which it derives under this general grant of authority, it may be a court of general jurisdiction. But as to those powers which that court derives under special statutes, and which would not, in the absence of the statute, pertain to it as a court of probate, it must, in common with all other courts, be deemed a court of limited jurisdiction. Whenever, by statute, a new power is conferred even upon the circuit court, which undoubtedly is a court of general jurisdiction, and the mode of proceeding is prescribed by statute, it becomes, quoad hoc, a court of special, or limited jurisdiction. If, then, the orphans’ court derives its power to order the sale of the personalty of estates from a statute, it is, as to that matter, a court of special jurisdiction. Whether it does derive this power from a statute, may be determined by inquiring whether or not it would have such a power in the absence of the statute. No lawyer would for a moment deny that, in the absence of the statute, the orphans’ court would have had no power whatever to make any order for the sale of the personalty, because the power of selling the personalty appertained at common law to the administrator, and was limited only by his discretion.
At one time in England, the ordinaries had power to sell and dispose of the estates of decedents, and for the manner in which tb ey exercised that power were, in the language of Blackstone, “not accountable to any but to God and themselves.” This discretionary power was exercised by the English prelates, not in a judicial capacity, but as individuals. They did not act as a court, but were clothed with the power of seizing upon the goods, and of appropriating them to various purposes, which changed from time to time, as the people emerged from superstition, until at last the appointment of the widow or next of kin as administrator was provided for by statute; and thenceforward a discretionary power over *527the sale of decedents’ goods was exercised by the administrator.
It is thus seen, that the authority to order the sale of the personalty of an estate never pertained to any court in England. Our statute conferred upon the court a power which did not belong to it in its general character of an orphans’ or probate court. The statute was, as to the court, an enabling law, bestowing a new power ; and as to the administrator, a disabling law, taking away from him the discretionary power to sell. Its object was, to make that which was before a matter of discretion with the administrator, a matter of judicial power, to be exercised under the circumstances indicated in the statute. As to this power, the orphans’ court is a new jurisdiction, unknown to the common law ; and must, upon a principle too well established to be questioned, be deemed a court of limited jurisdiction.
By the supreme court of Georgia, in the case of Tucker v. Harris, 13 Ga. 1, a forcible description is given of the looseness, carelessness, and irregularity which characterize the proceedings and records of the court of ordinary of that State, to which our court is, in the nature of its powers, strikingly assimilated. From that consideration, the necessity and propriety of a modification of the common law, in its application to that court, and the adoption of a more liberal rule of intendment in favor of its jurisdiction, are deduced. The learned judge, evidently alive to the evil of requiring the records of such a court, constituted as it is, to show affirmatively the jurisdictional facts ; and clearly perceiving the amount of litigation, and the doubtfulness of title, likely to result from the visitation upon the judgments of such a court of the stern rules of the common law, expressed a hope that another legislature would not be permitted to intervene, without the passage of an act, declaring courts of ordinary to be courts of general jurisdiction. We concur with the learned judge as to the necessity of legislation upon this subject; and we think, that an act, declaring that courts of probate shall be regarded as courts of general jurisdiction, when their orders, judgments, or decrees, are collaterally assailed, would meet and remedy the evil as to all subsequent proceedings of that court. But, while we.acknowledge the expedí-*528ency of a modification of the law in its application to the probate court, we do’ not consider it our province to make that modification. We, as individuals, know that the probate judges are not always selected for their legal learning ; and that the records of the court are often made up without the aid of counsel, and in haste ; and that consequently there must frequently occur a deficiency in the recital of jurisdictional facts, even where they really exist. Tet we must confine ourselves to the duty of declaring, and must not assume the privilege of making, or altering the law. The law, as we have laid it down, has existed, and been recognized, from the earliest days of English jurisprudence ; is maintained through an almost unbroken current of decisions by this court; and we must stand by it, or cease to act as judges, and convert ourselves into legislators.
We now, as we did at the last term, announce as our judgment, that the judgment of the court below must be reversed, and the cause remanded.