Modified November 23, 1915.
On Petition eor Rehearing.
(152 Pae. 1192.)
Mr. Oscar Hayter, for the petition.
Mr. W. O. Sims and Mr. Roswell L. Conner, contra.
Department 1.
Opinion by Mr. Chiee Justice 'Moore.
It is' contended in a petition for a rehearing that Section 1253, L. O. L., declares what facts an administrator or executor must set forth in an application to *264a County Court for leave to sell any of the real property of a decedent’s estate, and, this being so, the exclusion of any of these prerequisites and a determination that an exercise of the right to grant an order to sell such land could be predicated alone upon a verified petition which alleged only a mere indebtedness incurred by the deceased and described the premises desired to be sold, as stated in the former opinion, are erroneous.
No departure from a literal observance of all the requirements of the statute referred to in a direct attack upon the proceedings was sanctioned or even suggested. The holding complained of was based upon facts which must be stated in such petition, so that the order made thereon would not be set aside as void on a collateral attack. A text-writer, discussing this subject, remarks:
“Even if the sale should be held good as against a collateral attack — and it is distressingly uncertain to what extent the trial, and even appellate courts will go in that direction — yet many acts of commission or omission which will not be allowed to invalidate the transaction in a collateral investigation may in a direct proceeding subject the administrator to serious liability, the estate to loss and delay, and all parties concerned to vexatious and oftentimes ruinous litigation”: Woerner, Admr, (2 ed.), § 463.
This author, commenting upon what the petition for a sale of real property must show, observes:
“Unless it appear from its averments that debts which the decedent had contracted during his lifetime are still unpaid, and that there are not personal assets sufficient to discharge them, but real estate which is liable for their payment, the court will have no power to order or license such sale, and therefore any order so made, and any sale thereunder, must be void”: Id., §468.
*2659. The petition for the sale of the land described herein, a copy of which is included in the transcript, conforms to requirements mentioned in the former opinion, and was sufficient to invoke an exercise of jurisdiction. The order based thereon is not void, and hence cannot be set aside upon a collateral attack,, though the application for leave to sell the real property and all subsequent proceedings might have been vacated if an appeal therefrom had been regularly taken.
10. The defendants N. Selig, Ed Rich and Ethel Chambers, never having secured any liens upon Lena Yeaton’s interest in the land, by reason of the defective certificates to their respective judgments, can legally have no further interest in this suit; and a decree should be entered enjoining each, and his successors and assigns, from claiming or asserting any interest in or right to the premises or any part thereof by reason of either of the judgments so rendered in the Justice’s Court.
11. It is argued that the defendant Barnhart never bad an opportunity to make a direct attack upon the proceedings instituted in the County Court to sell the real property, and could not have appealed from any order or decree rendered therein. This defendant could have gone into the County Court, set forth his judgment lien against the interest of Lena Yeaton in the real property, thereby becoming a party to the proceedings, so that he could have obtained the sum due her as an heir or sufficient thereof to satisfy his debt, and, if such relief were not awarded him, he could have appealed. He had no constructive notice of such proceedings having been instituted to sell the land, because his judgment lien was not set forth or referred to in the petition for a sale of the premises. If he' had *266actual notice of that application and of the subsequent proceedings based thereon, as alleged in the complaint and confessed by the demurrer, or knew of such facts relating thereto as would put a person of ordinary prudence upon inquiry, and from such investigation could have interposed objections to the petition, and the order of sale, or have claimed a share of the proceeds and failed or refused to do so, his laches preclude any assertion of his judgment lien against such interest in the real property.
12. The defendant Barnhart had his day in court when he demurred to the complaint, thereby interposing an answer which raised a question of law. Whether or not he should be permitted to answer will depend upon the discretion of the trial court to which the cause will be remanded. If such leave be granted, an answer may be filed controverting such actual notice, and if it be found that he was aware of the proceedings undertaken to sell the land, and made no effort to assert his rights, his interest in the premises by reason of the judgment lien should be barred.
13. If, however, the court should find he had no actual notice of these proceedings until after they were concluded, so that he could not have asserted and protected his rights, the lien of his judgment should be decreed against the interest Lena Yeaton had in the premises prior to the sale.
The former opinion will therefore be modified and the cause sent back for such further proceedings, relating to the defendant Barnhart, as may be necessary not inconsistent herewith.
Reversed.
Modified on Rehearing.
Mr. Justice Benson, Mr. Justice Burnett and Mr. Justice Harris concur.