The opinion of the court was delivered by
Me. JUSTICE McGowaN.Many years ago (1826) William Stewart, of Edgefield County, died, leaving a will, by which he gave a tract of land in said county, containing 130 acres, more or less, to his brothers and sisters, among whom was his sister Desdemona (Desdemony), who was never married, but having an illegitimate son, William Mastin Stewart. She conveyed her interest in the said land to him, and in 1873 he died intestate, leaving as his sole heir at law one child, Mary Stewart, then under thirteen years of age. The said Mary afterwards intermarried with one Tederall, and finding that the aforesaid tract of land, in which she was informed she had an interest, was in the possession of strangers, viz., the defendants, Joseph H. Bouk-night and John D. Eidson, she instituted these proceedings against them for partition of the land, and to recover her interest, whatever it might be.
The defendants, claiming the land as their own, made vigorous defence, and among other defences alleged as follows : “That in the year 1874 proceedings were filed in the Probate Court for Edge-field County by certain of the heirs (devisees) of William Stewart for the partition of the tract of land described in the complaint, and that the plaintiff herein was a party to said proceedings in the said Probate Court in the case of W. D. McCarty et al. v. Mary Stewart et al.; that under said proceedings an order for the sale of said land was made by the said Probate Court on October (November) 2, 1874; that under said order a sale was made of said land, and that at said sale it was purchased by the defendants, who paid into the Probate Court the full amount of the purchase money, and that they have been since that time the joint owners of said land ; and that plaintiff is concluded and estopped from claiming any interest in the said land by said proceedings,” &c.
*279It was referred to the master, S. S. Tompkins, Esq., to ascertain “the quantum of the interest claimed by the plaintiff, and to take the testimony, reserving for the court all the questions of law and fact.” The master ascertained that the interest claimed by the plaintiff was thirty-three one-hundred-and-twentieths (38-120), or 11-40. He reported the record of the proceeding in probate, and the facts connected therewith, that the land was sold under it and purchased by the defendants for full value, which was paid to the probate judge, and he executed titles (December 7, 1884) to the purchasers, who have been in possession of the same ever since, claiming it as their own. Notwithstanding “the record,” the plaintiff was allowed to swear that “no papers in the partition case were ever served on her; that she had no knowledge of the pendency of the action for partition, and never received from William Brooks, or any other person, any of the proceeds of the sale of said lands,” &c.
The Circuit Judge held that the plaintiff, Mary, being at that time an infant, -was not properly made a party in the probate proceedings for partition, and was not bound by the judgment in that case, or the sale under it, and decreed that she was entitled to recover eleven-fortieths (11-40) of the land, and rents and profits for certain years in the same proportion. From this decree the defendants appeal upon the following grounds: 1. Because his honor erred in deciding that the plaintiff, as the sole heir at law of her father (W. Mastin Stewart), is entitled to 11-40 undivided interest in the tract of land described in the complaint, and the same proportion of the rents and profits for certain years. 2. Because his honor erred in holding that the proceedings in the Probate Court in the casé of McCarty et al. v. Mary Stewart et al. for partition of the land, which is the subject matter of this action, are not binding on the plaintiff, Mary Stewart, now Mary Tede-rall. 3. Because his honor erred in holding that the said proceedings in the Probate Court could be attacked collaterally by the plaintiff.
The Circuit Judge states that no objection below was made to “the quantum” of the plaintiff’s interest as reported by the master, and as the point Avas not pressed in argument here, we suppose that the first exception is abandoned.
*280The second and third exceptions, charging error in the ruling that the sale under the judgment of the Probate Court was, as to the plaintiff, illegal and void, are pressed most earnestly. It is urged with force that the defendants, having purchased the land and paid for it at a judicial sale, cannot be affected by any secret vice in the judgment authorizing the sale, of which they had no notice, but that all the parties to the probate proceeding a,re bound by it and estopped from assailing it. It is undoubtedly the policy of the law to maintain judicial sales, wherever it can be done without violating principle or doing injustice; and in this view it is held that a purchaser at such a sale is in no way responsible for mere irregularities in the proceedings, or even error in the judgment, under which the sale is made.
There are, however, two matters as to which purchasers are required at their peril to make inquiry, viz., that the court ordering the sale had jurisdiction of the subject matter, and that all proper parties were before the court when the order was made. Trapier v. Waldo, and authorities, 16 S. C., 282. The partition proceedings in the Probate Court, under which the sale was made, were prior to November 27, 1878, when the judgment in the case of Davenport v. Caldwell was filed; and therefore it would seem that under the authority of Herndon v. Moore (18 S. C., 339), we must consider the case precisely as if the act of the legislature, which gave to the Probate Court the power to partition lands, was constitutional and valid. It follows that, so far as the rights of the parties before the court are concerned, it must be assumed that the Probate Court, which ordered the sale, had jurisdiction of the subject matter.
But it is alleged that the plaintiff, then a minor of tender years, was not properly a party before the court in the probate proceeding, and therefore the sale as to her was, and is, utterly void. It is familiar doctrine that a judgment binds only those who are parties and their privies ; but a judgment is in its character final and conclusive, and how can the allegation that a particular person was not made a party be shown? The judgment presumes it until the contrary appears. It is held that a judgment, “regular on its face,” must be taken to be an absolute verity, and is beyond the reach of contradiction or assault in a collateral man*281ner, as in this case. That is to say, as we understand it, such a judgment can only be assailed by a direct proceeding instituted for that purpose. Therefore, if the proceedings in the Probate Court were “regular on their face,” it was error to admit parol testimony tending to contradict the record and to annul the sale as to the plaintiff. It is settled that .a purchaser for value at a judicial sale, without notice of the extrinsic facts, which are relied on to impeach the judgment, cannot be affected thereby; that such a purchaser without notice, under proceedings regular upon their face, and had in a court of competent jurisdiction, is not affected by any mere error of the court for which judgment might be reversed on appeal, nor for any secret vice in the judgment not appearing on the face of the record, and which can be made to appear only by the production of extrinsic evidence. See Turner v. Malone, 24 S. C., 398, and Quinn v. Wetherbee, 41 Cal., 409.
The question, then, is whether the probate proceedings “were regular on their face,” showing that Mary Stewart was properly, made a party. This must be determined by an inspection of the record itself, which was introduced by the defendants, and in such issues is always admissible, whether the proceeding is collateral or direct. At that time Mary Stewart was an infant, as the judge found, under fourteen years of age. In such case the law is very exacting, requiring that a copy of “the summons shall be delivered to the infant personally, and also to his father, mother, guardian, &c., or if there be none within the State, then to any person in whose service he may be employed,” &c. Code, § 155, subd. 2. When an infant has been thus made a party, he can only appear by guardian ad litem,, appointed, if the infant is under fourteen years, upon the application “of any other party to the action, or of a relative or friend of the infant, after notice of such application being first given to the general or testamentary guardian of such infant, if he has one ; if he has none, then to the infant himself, if over fourteen years, * * * or if under that age, &c., to the person with whom such infant resides,” &c. Code, § 137.
In view of these express requirements of the law. were the probate proceedings in partition “regular on their face,” showing *282that Mary Stewart was properly made a party ? The record does show that Mary was named in the petition as one of only two defendants, the other being William Brooks, as administrator of the estate of her father (W. M. S.), but not her general guardian; that Brooks petitioned the probate judge tobe appointed her guardian ad litem, stating therein that his said granddaughter “is desirous of having a guardian ad litem appointed to appear and answer in her behalf;” that he was so appointed and answered, submitting her rights, and for himself, as administrator, consenting to the partition prayed for. The record, however, failed to show that the petition prayed for any process to bring the two defendants into court — that any “summons” was issued at all, or that notice was given of the appointment of guardian ad litem, If, however, this were all, and the record in all other respects was regular, it may be that the court would presume that a “summons” issued and was served, and that proper notice was given of the appointment of Brooks as guardian ad litem, upon the ground that the Probate Court having rendered judgment in the case, it will be assumed that, before doing so, it took care to require the performance of everything, made necessary to have the parties named as defendants brought before the court.
But upon a careful examination of the whole record, it appears upon its face that the application of Brooks to be appointed guardian ad litem, his appointment as such, his answer and consent to the partition, and the final order of the probate judge (no commission issued) directing sale of the land, were all filed on the same day, viz., November 2, 1874, and the land was actually sold on the succeeding salesday of December. Notwithstanding a strong disposition to suppovt judicial sales, we cannot resist the conclusion that these facts appearing in the record itself fully rebut any presumptions arising from the existence of the judgment, and show affirmatively that the probate partition was a mere consent proceeding on the part of Brooks, the only adult defendant, who undertook to act for his little granddaughter, Mary, and that she had in fact no notice whatever, either of the proceeding, or that he had procured himself to be appointed her guardian ad litem. It may be that it was considered unnecessary to perform what seemed to be an unmeaning ceremony *283in serving a copy of summons, and in giving notice to an infant incapable from her years of comprehending the transaction or its purport and object. But the provisions of the law upon the subject are minute and positive. The court, always anxious to protect the rights of infants, must assume that there was some good reason for all the requirements, and enforce them. At all events, we have not, for the reason assigned, or any other, the dispensing power.
The cases in our own Reports principally relied on for the defendants were Bulow v. Witte, 3 S. C., 309; Walker v. Veno, 6 Id., 459; and McCrosky v. Parks, 13 Id., 92. It will be observed, however, that all these cases involved the question as to what was necessary to make infants parties under the old practice in chancery and the court of ordinary, which prevailed before the adoption of the code in 1870. But the case of Finley v. Robertson, 17 S. C., 435, and the late case of Riker v. Vaughan, 23 S. C., 187, were decided under the provisions of the code cited above. 1 In the latter case the court held that “jurisdiction of the person of an infant can only be obtained by pursuing the mode prescribed by statute.’' We agree with the Circuit Judge, that the proceedings in the Probate Court were not “regular on their face,” but, on the contrary, show that Mary Stewart, named as an infant defendant, was never legally made a party, and that the judgment and order of sale in probate were, as to the said Mary, coram non judice, and void.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.