On Application for Rehearing.
In response to the application for a rehearing we have very carefully considered all the evidence in the record and in the original probate papers sent up to this court and the questions of law involved. There are but two primary questions involved in the case : First, whether there was fraud in the procurement and rendition of the decree of insolvency and the order for the sale of the land; and, second, whether the order for the sale of the land was void on account of the irregularities pointed *465out. The burden was clearly on the appellees to establish the fraud' alleged by a clear preponderance of evidence. Fraud will not be imputed from suspicious circumstances alone, susceptible of a hypothesis consistent with honesty and innocence, nor will the burden of proving the issue be considered sustained simply by the testimony of one witness tending to establish the facts alleged to constitute the fraud, when these facts are positively denied and refuted by the party charged with the fraud. The only testimony in the record tending to show fraud is that of Mrs. Williams, the widow of William Shamblin, who states that she never had* any claim against the estate of her husband, never presented any claim to the administrator, and never received anything from the estate except the homestead that was set apart to her. It is true, there appear in the original papers filed in the probate coux-t various interlineations, erasures and alterations of dates, but no testimony was offered to show when, by whom, or under what circumstances, these changes were made. In the absence of such evidence, it must be presumed that they were authorized amendments made before the order of sale, or, at least, that they were not fraudulently made. Against this evidence is the testimony of the administrator and that of his attorney. The latter testified that he had personal knowledge of the nature and amount of the larger part of Mrs. Williams’ claim, that he made out the claim at her request, she furnishing him with all the itexns, and that she presented it to the administrator, and the same was in fact filed in the probate office. This was xxot hearsay evidence, nor testimony as to transactions with, or declarations by, a deceased person, as contended by counsel, but was legal and competexit evidence on the issue involved. The testimoxxy as to the presentation of the claim is corroborated by the administrator, who also testified that upon a final settlement of the insolvent estate he paid to Mrs. Williams, or to her husband in her presence, a part of the claim in cash, accepted and paid an order oxx himself given by her to a third person, and the-balance he allowed her as a credit on the purchase moixey of a part of the land sold under the order of sale in controversy, which, as the report of sale shows, was purchased by her at the sale, and this evidence is corroborated in part by the *466receipts in evidence. The evidence was utterly insufficient to establish the charge of fraud, and we adhere to our former conclusion, that the charge of fraud finds no support in any tendency of the evidence.
There being no fraud in the procurement and rendition of the decree of insolvency, the question whether the estate was, in fact, insolvent; was not one that could properly be considered and decided on this appeal. That was a question exclusively for the determination of the probate court, and its determination, upon a report and petition sufficient to give it jurisdiction to act, was res adjudicata, and could not be reviewed or reopened, except in connection with an investigation as to the existence of fraud, in the chancery court, or in any other court, except upon an appeal sued out to reverse the judgment of the probate court. — Pettus v. McClannahan, 52 Ala. 60. This court did not, therefore, in the former consideration of the case, find that the estate was in fact insolvent, but simply that the probate court had so decreed, and that no fraud was shown to have been employed in the procurement and rendition of the decree.
If a judgment or decree is not void for want of jurisdiction, and its invalidity is not apparent on its face, neither the court rendering it, at a term subsequent to its rendition, nor any other court, in the absence of fraud, except.an appellate court on a direct appeal, has the power to vacate and annul it. When the validity of,an order for the sale of a decedent’s land is attacked, whether by a bill in chancery to annul it, or by a petition in the court rendering the decree, at a subsequent term, to vacate it, the primary inquiry is, had the probate court jurisdiction to render the decree for the sale? If it had such jurisdiction, no mere irregularities in the subsequent proceedings will avail to invalidate the decree and sale thereunder, except upon a direct appeal, or a proceeding in the court rendering the decree instituted before the expiration of the term at which it was rendered.—Pettus v. McClannahan, 52 Ala. 57; Stevenson v. Murray, 87 Ala. 442; Satcher v. Satcher, 41 Ala. 26 ; Lightfoot v. Lewis, 1 Ala. 479. And by jurisdiction is here meant jurisdiction of the thing, and not of the persons owning the thing. The doctrine established by the early decisions of this court, and adhered to because it *467has long been a rule of property, is, that a proceeding before the probate court for the sale of lands of a decedent is in rem, and not in personam; that the jurisdiction of the court attaches upon a petition setting forth a statutory ground of sale, and does not depend on the giving of notice to the heirs ; and that the order of sale is not void, although the proceedings abound in errors, if the petition contain the necessary jurisdictional allegations.—Satcher v. Satcher, supra; Lyons v. Hamner, 84 Ala. 198 ; Moore v. Cottingham, 113 Ala. 162, and cases cited. "When jurisdiction is shown, the same presumptions in favor of the correctness of the subsequent proceedings are indulged as in proceedings of a court of general and unlimited jurisdiction. The petition for the sale of the land of the insolvent estate was properly considered in connection with the former petition, to which it referred, and the two petitions, as shown by the decree, were acted on as one application for the sale of the lands of the insolvent estate, and together they contained'all the averments essential to confer jurisdiction.—Saltonstall v. Riley, 28 Ala. 181. Thus it appears that the probate court had jurisdiction to order the sale, and the sale was had upon an application for the sale of the land of an insolvent estate after the decree of insolvency. It was not necessary, therefore, to take testimony in any manner to show the necessity of the sale. Code of 1886, § 2258; Code of 1896, §326; Meadows v. Meadows, 78 Ala. 240. And the other irregularities insisted upon were not such as could invalidate the sale or the title of the purchaser acquired thereunder. The cross-bill of appellees was a collateral attack, within the meaning of the term as used in our former decisions denying the invalidating effect, upon such aftack, of mere irregularities in the proceedings after the court had acquired jurisdiction. In Satcher v. Satcher, Pettus v. McClannahan, and Stevenson v. Murray, cited above, the attack was by petition in the court rendering the decree to set aside and annul the .sale on the ground of similar irregularities, as in each case it was held that such irregularities were unavailable on such proceedings. They are equally unavailable on a bill, or cross-bill, in chancery filed for a like purpose, in the absence of fraud. We have been unable to discover any error in the conclusions reached on the former’ consideration of the case.