dissenting.
This is an action of ejectment brought by the plaintiff against the defendant in the district court of Nuckolls county, to recover the possession of the northwest quarter of section 11, in township 4 north, range 8 west, of the 6th P. M., and for damages for withholding the possession. The defendant answered denying the pi lintiff’s title and alleging that the sale was made more than five years before the bringing of the suit. On the trial of the cause *847the court directed the jury to return a verdict for the defendant, which was done, and judgment entered thereon, dismissing the action. It appears from the record that James Stack, in his lifetime was, the owner of the land in controversy; that he died in the year 1879 in Clay county, leaving a will wherein the plaintiff, was named as executrix and sole legatee of all his property, subject to his debts. The will was duly admitted to probate in Clay county, but afterwards the plaintiff, for some cause which does not appear and is not material, resigned and William H. Hammond was appointed administrator with the will annexed of said estate. The debts secured by mortgage against the estate seem to have amouutedto nearly $1,200, and the personal property was of less value than $300. To satisfy these debts it was necessary to sell real estate, and the administrator presente^ the following petition to Judge Weaver, of the then first judicial district:
“In the District Court, First Judicial District, in and for Nuckolls County, Nebraska. Before Hon. A. J. Weaver, Judge:
“Petition of Wm. H. Hammond, Administrator of the Estate of James Stack, Deceased, to [ Sell Real Estate to Pay Debts.
“Comes now William H. Hammond, administrator as aforesaid, by Hayes & Steele, his solicitors, and represents to the honorable court that he was on the 2d day of February, 1880, duly appointed administrator of the estate of James Stack, deceased, by Hon. E. P. Bennett, county judge of Clay county; that the personal property which came to his hands as such administrator amounted to $287.29, and that the same has all been paid out and expended towards liquidating the just debts and demands existing against said estate, which said claims and demands *848amounted in the gross to $1,187, as near as can be ascertained, and that there still exists demands and claims amounting to $900, as nearly as the same can be ascertained by your petitioner. Your petitioner further represents that said James Stack, deceased, died seized of the following real estate, to-wit: The northwest quarter of section 11, town 4 north, of range 8 west, of the 6th principal meridian, situated in said Nuckolls county. Your petitioner therefore prays that an order may be made allowing him to sell said real estate, or so much thereof as may be necessary, at private sale, and that the proceeds of said sale shall be appropriated to the liquidating of the claims, demands, and debts existing against said estate.” This was duly signed and verified.
Judge Weaver thereupon made the following order:
“In the District Court, First Judicial District, Nuckolls County, Nebraska.
“In the Matter of the Application of Wm. H. Hammond, Administrator of the Estate of James Stack, Deceased, to Sell Real Estate to Pay Debts.}
“Present, Hon. A. J. Weaver, judge.
“Upon reading the petition filed herein, and it appearing by the petition that there is not sufficient personal property or estate in the hands of said administrator to pay the debts of said estate of James Stack, deceased, and it appearing from the petition that it is necessary to sell the real estate described in the petition filed herein for the payment of said debts against said estate: Therefore, it is ordered that all persons interested in said estate appear before me at chambers, at my office in Falls City, Nebraska, on the 24th day of July, 1880, at 2 o’clock P. M.,to show *849cause why a license should not be granted as prayed to sell the N. W. \ sec. 11, T. 4, R. 8 W., situated in Nuckolls county, Nebraska, to pay debts against the estate of James Stack, deceased. And it is further ordered that a copy of this notice be published for four successive weeks prior to the time fixed for said hearing, in the Nuckolls County Herald, published in Nuckolls county, Nebraska.
“A. J. Weaver.
“Clay Center, May 17, 1880.”
It will be observed that this order was made at the county seat of Clay county. The order was duly published four successive weeks. At the time set for the hearing a license was granted as follows:
“In the Matter of the Application of William H. Hammond, Administrator of the Estate of James Stack, Deceased, to Sell Real Estate to Pay Debts Against Said Estate. }
“license.
“And now on this 24th day of July, 1880, this cause coming on to be heard at chambers, at the time and place fixed in open court, and in pursuance of the notice filed herein, and being fully advised in the premises, I find there has been lawful service by publication of the notice heretofore ordered to be given of the time and place for hearing of the application for license to sell real estate to pay debts against the estate of said James Stack, deceased, and having fully examined the petition and the allegations and the proofs of the parties interested, and no one appearing to show cause why license should not be granted as prayed, and being satisfied that it is necessary to sell the real estate described in the petition to pay debts against the estate of said James Stack, deceased: Therefore, it is ordered *850that the said William H. Hammond, administrator of the estate of said James Stack, deceased, be, and he is hereby, authorized and licensed to sell the following real estate to pay debts against the- estate of James Stack, deceased, to-wit: The northwest quarter of section number 11, town 4 north, in range 8 west of the 6th P. M., situated in Nuckolls county, Nebraska. Said administrator, before making said sale, is required to take the oath as prescribed by law and to execute a bond, to be approved by the clerk of the district court in and for Nuckolls county, in the sum of $1,000, and he is hereby ordered to make return of his doings under this license to the district court of Nuckollscounty within one year of the date hereof.
“ The clerk of the district court in and for Nuckolls county is ordered to copy this license in his journal, file the original in his office, and furnish the administrator a certified copy of the same, and the clerk is further ordered,, upon the execution and approval of the bond ordered to be given him, to file the same in his office and copy the same upon the proper record. A. J. Weaver.”
“ Judge of the District Court, First Judicial District of Nebraska.”
The administrator thereupon gave a bond, which was retained by the clerk and thereby duly approved, and took the oath required by statute, and after due advertisement sold said land to S. C. Colverd for the sum of $605, subject to the interest of P. M. Colverd of $655. The report of this sale is in due form and is accompanied by the oath of two reputable persons that the price is not disproportionate to the value of the land. The report was duly presented to the district court of Nuckolls county, and an order made confirming the same, as follows:
*851“ In the District Court in and for Nuckolls County, Nebraska.
“In the Matter of the Sale of Real Estate by William H. Hammond, Administrator of Estate of James Stack, Deceased.}
“Journal entry, November 8, 1881.
“ Now on the 8th day of November, A. D. 1881; being the second day of said court, came this cause on for hearing, and on motion of said William H. Hammond, by John D. Hayes and W. A. Bergstresser, his attorneys, and on producing the return and report of the said administrator of a sale of real estate made by him on the 18th of September, 1880 to Mary A. Colverd on an order of sale issued by this honorable district court in this cause on the 24th. day of July, A. D. 1880, ordering the sale of the N. W.. of section 11, township 4 north, of range 8 west, of the 6th P. M., and the court, on examination of said proceedings, being the said return and report, being satisfied that said sale has been made in all respects in conformity to the law and the previous order of this court, it is ordered that, the said sale and proceedings be, and the same is hereby, confirmed, and the said administrator is ordered to make to-said purchaser a deed for the lands and tenements so sold.”'
A deed was thereupon made by said administrator in due form, under which the defendants claim title.
The principal contentions of the plaintiffs is that the proceedings having been conducted in Nuckolls county where the land is situated while the administrator was appointed by the probate court of Clay county, that therefore the proceedings are void and no title passed by the deed. It is necessary therefore to examine the statutes authorizing such sales. In consequence of certain irregularities which were brought to the attention of the legislature in 1866, the power to decree sales of real estate was taken *852away from the probate courts by section 4, article 4, of the constitution of 1867, which is as follows: “The jurisdiction of the several courts herein provided for, both appellate and original, shall be fixed by law ; Provided, That probate courts, justices of the peace, or any inferior court that may be established by the legislatoe shall not have jurisdiction in any matter wherein the title or boundaries of land may be in dispute, nor shall either of the courts mentioned in this proviso have the power to order or decree the sale or partition of real estate; And provided further, That justices of the peace, and such inferior courts as may be established by the legislature, shall not have jurisdiction when the debt or sum claimed shall exceed $100, and the jurisdiction of the district or probate courts, and justices of the peace, shall be uniform throughout the state.”
In the constitution of 1875 the provision is as follows: “ County courts shall be courts of record and shall have original jurisdiction in all matters of probate, settlements .of estates of deceased persons, appointment of guardians, and settlements of their accounts, in all matters relating to apprentices, and such other jurisdiction as may be given by general law. But they shall not have jurisdiction in criminal cases, in which the punishment may exceed six.months imprisonment, or a fine of over $500, nor in actions in which title to real estate is sought to be recovered, or may be drawn in question, nor in actions on mortgages or contracts for the conveyance of real estate, nor in civil actions where the debt or sum claimed shall exceed $1,000.” Section 23 of the same article provides that “The several judges of the court of record shall have such jurisdiction at chambers as may be provided by law.”
Our present law in relation to decedents was passed and in existence before the state was admitted into the Union, hence some of the peculiar phraseology of that law has never been changed to conform to the change in the tribu*853nals to authorize the granting of licenses to sell real estate. Thus in section 68 the administrator is required to present a petition to the district court of the county in which he was appointed, etc. Thus in section 68 of the Revised Statutes of 1886 the word “probate” being changed to “ district ” before the word “ court.” The original section is as follows: “In order to obtain such license, the executor or administrator shall present a petition to the probate-court from which he received his appointment, setting forth the amount of personal estate that has come to his hands and how much thereof, if any, remains undisposed of; the debts outstanding against the deceased, so far as the same can be ascertained; a description of all the real' estate of which the testator or intestate died seized, and the condition and value of the respective portions or lots, which petition shall be verified by the oath of the party presenting the same.” A change was made in this section in 1887, so that it now reads as follows: “In order to obtain such license, the executor or administrator shall present a petition to the district court of the county in which he was appointed, setting forth the amount of personal and real estate that has come to his hands and how much thereof, if any, remains undisposed of; the debts outstanding against the deceased, so far as the same can be ascertained j a description of all the real estate of which the testor or intestate died seized, and the condition and value of the respective portion or lots, which petition shall be verified by the oath of the party presenting the same.”
The words “of the county” were added by the last change, so that the section now reads,'the “administrator shall present a petition to the district court of the county in which he was appointed.” The plaintiff’s argument is based almost wholly upon these words, apparently ignoring the fact that they were not in the statute when this sale took place in 1880. Section 339 of chapter 17, General Statutes, which was in force when this sale took place, *854is as follows: “The judge of the district court of the ■state may, upon the application of an executor, administrator, or guardian to sell or dispose of the real estate of decedents, spendthrifts, or minors, hear and determine the ■same at chambers in vacation; Provided, That in all cases where the judge shall order a sale of any real estate, while sitting at chambers, he shall make out, in writing, a copy of said order, and cause the same to be filed in the office of the clerk of said court, and said clerk shall thereupon record said order, in the record book of said court, before any sale shall be made as aforesaid.”
On page 10 of the plaintiff’s brief it is said that the clerk shall enter the same in the record book of the comity, etc., which is a clear mistake. It will not be seriously contended that if the court or judge had jurisdiction to make the orders in the premises that the failure of the clerk to enter the order before a sale took place would render all subsequent proceedings void, particularly if no one had suffered by the wrong. But the question may arise, what county is referred to? Since the amendment of 1887, that question is set at rest, but prior to that time there was room for doubt. It is true section 68 provides for the presentation of a petition to the judge of the court of the county in which the administrator was appointed. This, under the territorial law above referred to, was necessary, as the probate judge would have no jurisdiction outside of his own county. The constitution, however, by conferring this power on the judge of the district court, gave the authority to judges and tribunals which have general jurisdiction in each county in the district; and, therefore, the power in that regard is much broader than under the territorial law. This principle is recognized in Seymour v. Ricketts, 21 Neb., 240, where a license to sell real estate issued by a judge of the first judicial district included lands in the second district, and the sale was held not subject to collateral attack and was sustained. A judge has jurisdiction over his en*855tire district. His power is as broad in that regard in respect to matters over which he has jurisdiction as that of a ■county judge within his county. He is liable to err, but if he has jurisdiction, such errors will not render the proceedings void. Therefore, where a petition is properly presented to him setting forth the necessity of a sale, and he causes a notice thereof to be published for the requisite length of time, and thereafter issues a license under which a sale of real estate of the decedent takes place, the sale will not be void unless there is fraud.
The plaintiff in error lays considerable stress upon the words “district court,” and it is said that a district judge is not a district court. In section 69, chapter 23, Compiled Statutes, it is said “the judge of the district court shall thereupon make an order.” In section 72 of the same ■chapter it is provided that “the judge of the district court shall proceed to the hearing of said petition.” In section 79 it is provided that “if the judge of the district court shall be satisfied, after a full hearing upon the petition, etc., * * * that a sale of the whole or some portion of the real estate is necessary for the payment of valid claims •against the deceased * * * he shall thereupon make ■an order,” etc. Section 80 requires the judge to specify the land to be sold, and authorizes him to direct the order in which they shall be sold. Section 87 is as follows:
“ The executor or administrator making any sale shall immediately make a return of his proceedings upon the ■order of sale in pursuance of which it is made, to the judge -of the district court granting the same, who shall examine the proceedings, and may also examine such executor or administrator, or any other person, on oath, touching the •same; and if he shall be of opinion that the proceedings were unfair, or that the sum bid is disproportionate to the value, and that a sum exceeding such bid, at least ten per -cent, exclusive of the expenses of a new sale, may be obtained, he shall vacate such sale and direct another to be *856had, of which notice shall be given; and the sale shall be» in all respects, as if no previous sale had taken place.
“Sec. 88. If it shall appear to the district judge that, the sale was legally made and fairly conducted, and that the sum bid was not disproportionate to the value of the property sold, or if disproportionate, that a greater sum than above specified cannot be obtained, he shall make an order confirming such sale and directing conveyances to be executed.”
It will thus be seen that the judge of the district court may make any of the orders named. It is true the word “court” appears in some of the sections of the decedent law, but it will be found in every instance that that word existed in the territorial law and has not been changed; in other words, applied originally to the probate court and not to the district court; and, as is well known, the probate court consisted of the probate judge alone, and was always open for the transaction of business, except on Sundays and legal holidays, the same rule, no doubt, is applicable to the-judges of the district court in relation to selling real estate-for the payment of debts owing by an estate. This question is discussed in Stewart v. Daggy, 13 Neb., 290, and what is said there need not be repeated here. It is very clear to my mind, therefore, that where a petition stating the necessary facts is presented to a judge of the district court within his district for the sale of real estate to pay debts against the estate, that he thereby acquires jurisdiction of' the case, and if he, in good faith, follows the directions of the statute, although he may err therein, his orders and judgment, although erroneous and liable to be reversed in a direct proceeding, are not void, and a sale wherein the forms of the law have, in good faith, been complied with, is not void, although in a proper proceeding it may be voidable. Here, while the statute as it existed prior to-1887 is not entirely clear as to the county in which the record should be made, yet it is probable it should have *857been in the county where the administrator was appointed. The failure to do this, however, did not render the proceedings void. The land was sold by the representative of the estate and the money derived from said sale used to pay the debts owing by said estate. If there was any defect in the proceedings the purchaser was not to blame therefor and he should not suffer for such neglect. Had the plaintiff sought to redeem the land by offering to pay the full amount of purchase money, interest, and taxes, and stated any additional ground therefor, as that the land was sold for a grossly inadequate price, she would have appeared to much better advantage. It is evident to my mind that there is no error in the record, and the judgment in my view should be affirmed.