1. Purchaser at void sale entitled to subrogation.
after stating the facts as above reported. The sale of the lands, which were occupied by John Harris as a homestead at the time of his death, and were set apart by the probate court to his minor children until they should become of age, was void. The purchaser did not commit any offense under the Act of the General Assembly, numbered 105 and approved April 25, 1873, by attempting to buy the land. He stands as though the effort to sell was not made a criminal offense, and is entitled to be subrogated to the rights against the estate which were held by the creditors whose claims his money has paid. Bond v. Montgomery, ante, p. 563.
% KimitatLotl.to s«a against lega]®®ordlstribu'
Appellants insist that this action is barred by limi- ... tation, and to sustain this contention rely upon section J r 470 of the Code of Practice in Civil Cases. This section is a part of chapter 3 of title 10 of the Code, which provided for the settlement of the estates of deceased persons. Section 465, which is the first section of that chapter, provided that “the personal representative, heir, devisee, legatee, distributee or creditor of a deceased person may institute an action by equitable proceedings for the settlement of his estate, and in such action may make all having an interest in the estate and settlement defendants.” Section 467 provided that the court shall make an order in all such actions ‘ ‘ for the creditors of such decedents to appear before a commissioner, to be appointed by the court, and prove their claims by a certain day to be named in the order.” Section 468 provided that “a creditor appearing before (a) commissioner, and presenting his claims, becomes thereby a party to the action, and is concluded by the final judgment of the court allowing or rejecting his claim;” and section 469 provided that “creditors failing to appear and prove their claims, agreeably to such order, shall have no claim against the executor or administrator, who has actually paid out the estate in expenses of administration, and to creditors, legatees or distributees.” Section 470 then provided: ‘ ‘ Legatees and distributees shall be liable to a direct action by a creditor to the extent of (the) estate received by each of them, notwithstanding the failure of the creditor to appear, and the discharge of the personal representative, as prescribed in the preceding section; and that liability shall continue for the same period that the liability of the personal representative would have continued but for said discharge.” It is obvious that the-liability referred to in the last section is the liability of" the legatees and distributees to the creditors who did not appear before the commissioner and present his claim, in the actions by equitable proceedings for the settlement, of the estates of the deceased persons mentioned in the preceding sections ; and that section 470 did not limit the continuance of any other liability. As the five preceding sections were impliedly repealed by the Constitution, of 1874, which gives to probate courts exclusive jurisdiction of matters of administration of the estates of deceased, persons, such limitation is not in force in this State, and. does not affect this action.
3. Partiesto suit for subrogation.
■ Appellee failed to make the creditors, to whose- ° rights he seeks to be subrogated, parties to this action. It is evident they were necessary parties. It would be a. violation of natural justice to dispose of their rights, without affording them an opportunity to be heard. As they were not made parties, we will not undertake to-decide what the rights of appellee as to them are, under the peculiar facts of this case.
On account of this defect in the parties to this action, the judgment of the court below is reversed, and the cause is remanded for further proceedings.