{dissenting:)
I make this short note to say that I am not satisfied of the correctness of the decision in this case. .Ido not realize how it can be said that the decree of the Circuit Court selling the land of tlie lunatic was void for want of jurisdiction. Under section 42, c. 58, Code 1868, the court had jurisdiction of such a proceeding. The lunatic was served with process, and a guardian ad litem was appointed for her, as might be done in any suit or proceeding under section 13, e. 125, of the same code, and he filed his answer. Thus, the court had jurisdiction of the person of the defendants and of the subject-matter — the sale of an insane person’s land; and, this being so, how can we say in a collateral proceeding, that its action is utterly void for want of jurisdiction? That the lunatic was a married woman is not material, as the section is as applicable to the sale of a married woman’s land for the causes in it specified as it would be to the sale of her land if she were not married.
Of course, a debt sought to he asserted as an incident in the proceeding ought not to be decreed further than it bound the estate of the lunatic; but the jurisdiction does not depend on the validity of the debt. The bill was filed to sell the land because the personal estate and rents and profits of the real estate, after the payment of debts, were insufficient to maintain the lunatic, and the debts come in not as the sole ground of jurisdiction, but as a mere incident, as the statute required the committee to- state them. This provision is made for the benefit of creditors. The fact that a debt not binding the corpus of the married lunatic’s realty is involved, does not oust the court’s jurisdiction of the subject, for that is based on the necessity of a sale to maintain the lunatic. I assert that under that statute an insane feme covert’s property could be sold out and out, and the decree of an improper debt does not divest the court of jurisdiction of the subject-matter.
*644Unquestionably, this suit is a collateral proceeding, in the eye of the law. It is not an appellate proceeding. True, its direct object and effect are to annul the decree; but it is none the less collateral. Black, Judgm. § 252. If there was error in law, it was to be corrected by bill of review' or appeal, not by a new bill: and an original bill is collateral. I care not that it was a statutory proceeding. The proceeding was according to the statute, and when this is the case, the general principles of jurisdiction govern. Harvey v. Tyler, 1 Wall. 328. Pulaski Co. v. Stuart, 28 Gratt. 872; 1 Black, Judgm. § 279; Cochran v. Van Surlay, 32 Amer. Dec. 570. The Hull Case, 26 W. Va. 1, is different. There the widow could under no circumstances lile a bill to sell laud.
Nor can I see how we'can set aside the decree because procured by fraud. Can it be that because the jcommit-teo set up debts which, in law did not bind the corpus of the estate, it is fraud sufficient to avoid the decree? The very letter of the statute commanded the committee to state the debts against the lunatic. Bid he violate law in stating debts merely because they did not in law bind the land? lie may have thought they did. Does his mistake upon a complicated question of law convict him of fraud? He and the creditors submitted the debts to the judicial determination of a court of the country, and because mistaken, or rather because the court was mistaken and decreed debts against the land, which did not in law bind it, the whole adjudication is fraudulent, and must be annulled. Error in the court it was, we may concede, to be remedied in that proceeding by bill of review or appeal; but it does not show such a fraudulent procurement of the decree as to avoid it, and hurts not the committee but the purchaser under that decree by annulling it for fraud. The fraud consisted in nothing more than error of law in the court. Under this doctrine, how many decrees would bo annulled and titles set aside! Neither of the parties procured the decree by perjury, duress or other act such as to avoid the decree.
In Evans v. Taylor, 28 W. Va. 185, this Court held that the simple fact, that a party sues on a false claim—one *645even which lio knows had been adjudged invalid — is not such fraud as entitles him to enjoin the suit. Suing on a false claim is no fraud. What was done was open, .in a court of the country, under the color and form of law. However hurtful to the estate of the insane person it may bo, T would regard it as many other cases must be a hard case, it may be, but one done under color of due and orderly proceedings in a public court having jurisdiction, and therefore sheltered under a principle essential to the safety of the highest rights and welfare of person and property.
> If the decree had been reversed on appeal, the title of the purchaser, he being a creditor and party, might have fallen; but the point I make is that no original bill can be maintained to annul the decree as void. Hall v. Hall, 12 W. Va. 1; 1 Black, Judgm. §§ 170, 244, 261, 269.