I concur with Mr. Justice Beck in his conclusion, and, in my opinion, there is one point bearing upon the question of the statute of limitations which has such a controlling influence with me that it ought to be stated. The statute, it will be seen, makes the lapse of time simply a bar. While most, if not all, general statutes of limitation require not only lapse of time, but adverse possession also; and many of them require a color of title upon which to ground the adverse possession. Now, I think, where a color of title is required in order to support an adverse possession under the statute, that a void title — that is, a title acquired under a formal judicial order, where the court acquired no jurisdiction (for want of service, or other thing), will be sufficient. But, that where the statute makes the mere lapse of time constitute a bar, there the party relying upon it must have, at least, a voidable title, and that a title wholly void will not do. Doubtless the cases in 13 Indiana and 13 Howard, 476, and other cases bearing on this point cited in the foregoing opinions, will find their support in this distinction.
Dillon, Ch. J.Conscious of its great importance, both to the parties and in view of the principles involved, the court has given to this cause a most careful consideration. It is, perhaps, proper to say to counsel, that it has been held over until this time in order that the requisite investigation of the authorities referred to by them in this State and elsewhere might be made. Each judge, in succession, has for himself gone over the whole field ol authorities cited by counsel, and made such additional examinations as seemed likely to afford any satisfactory *207guide to Ms inquiries. My examination and reflection have produced, in my own mind, a clear conviction that the plaintiff’s title is protected by the special statute of limitations applicable to administrator’s sales. Code 1851, § 1356 ; Eev. § 2388 hereinafter quoted.
On this ground alone I rest my judgment in this case. I do not, therefore, propose to go over the wilderness of cases relating to administrator’s sales; to the nature of the proceedings; whether adversary or in «, or quasi vn remj whether notice be essential to jurisdiction; and if so, whether in tbe case of infants it may be given to the guardian; whether the County Court is one of general or limited jurisdiction as respects such proceedings, and what presumptions attach to its actions and orders. The cases on all these subjects are very numerous and do not admit of being reconciled. It would be without profit to burden an opinion with a detailed discussion of them.
I shall make only such reference to the cases as tends to show the correctness of my view of the aforementioned statute of limitations.
At the bar I had always been accustomed to give, and to see given, notice of the application to sell, to the persons interested in the real estate proposed to be sold by the administrator. This practice naturally produced an impression that, in the case at bar, the sale could not be sustained, and that the title of the heir (aside from the statute of limitations) must prevail over that of the purchaser from the administrator.
Before examination my impression was that notice to the heir, or person interested in the land, either actual or by publication, or otherwise, as the court might prescribe was absolutely essential, was jurisdictional, without which any order for the sale was a nullity.
But when I came to trace out the history of the legislation on this subject in this State, and in others from *208which this State has borrowed it, and to examine this legislation in the light of the decisions of the courts of those States, I must say that my previous opinion has been greatly shaken. As it is unneccessary to decide it, I leave, without any expression of opinion, the question whether the notice required by section 1344, of the Code of 1851, is jurisdictional in any sense, and, if so, whether it may not be sufficient to sustain a sale when collaterally attacked, even within five years, that the court appointed a guardian ad litem to appear and defend for the infant heir. See on the last point Nelson v. Moore, 3 McLean, 319; Bustard v. Gates, 4 Dana, 429; Bank v. Cochrane, 9 id. 395; Day v. Kerr, 7 Mo. 426; Preston v. Dunn, 25 Ala. 507, and cases cited; Sheldon v. Newton, 3 Ohio St. 494; Benson v. Cilley, 8 id. 614; Coon v. Fry, 6 Mich. 506.
The following cases relating to administrator’s sales, and that, too, under statutes providing that notice of the application should be given in terms as strong as in our statute, if not stronger, hold that the proceeding is in rem ; that the provision as to notice is directory; and that, if not given, it does not deprive the court of jurisdiction; and hence, an order for a sale, without such notice, or upon notice alone to the guardian, while irregular, and reversible on appeal, is not void, when collaterally attacked.
Grignon's Lessee v. Astor, 2 How. (U. S.) 319, 1844, leading case; following and approving McPherson v. Cunliff, 11 Serg. and Rawle, 422, 1824; Salstonstall v. Riley, 28 Ala. 164, 1856; Wilkinson v. Leland, 2 Pet. 627 (arguendo, per Story, J.); Sheldon v. Newton, 3 Ohio St. 494, 1854, reviewing previous Ohio decisions; Benson v. Cilley, 8 id. 604, 1858; Howard v. Moore, 2 Mich. 226; Coon v. Fry, 6 id. 506, 1859; Doe v. Harvey, 5 Blackf. 487; Thompson v. Doe, 8 id. 336; Norton v. Norton, 5 Cush. 524, others to the same effect *209might be cited. Contra, that notice is jurisdictional, Babbitt v. Doe, 4 Ind. 356, 1853; Doe v. Anderson, 5 id. 33, 1854; Doe v. Bowen, 8 id. 197; Gibbs v. Shaw, 17 Wis. 197; French v. Hoyt, 6 N. H. 370, 1833; and others holding the same view may doubtless be found.
In the case now before the court there was no fraud practiced on the infant heir. She was only two years of age, and notice of any kind to her would have been a useless ceremony for any purpose, since she could not have understood it, and since her own mother was a party to the proceeding, was represented by counsel, and is not shown to have been in any way adversely concerned to her child. The sale was ordered after appearance and consent by the mother and natural guardian, and after a guardian ad Utem had been appointed to act for the heir. The plaintiff paid full value, received a deed from the administrator, which was approved by the court, and has been in continuous adverse possession of the property ever since 1852. The property meanwhile has doubtless greatly enhanced in value, and it will defeat the reasonable and just expectations of the plaintiff should he lose it at this distant day.
On no principle of justice has the heir, under such circumstances, a right which, in strength and persuasiveness, will at all compare with the right of the purchaser. Every fair mind will thus regard the relative claims of these two parties to this land. This would be so everywhere. But particularly ought this to be so in a new country, which, like ours, is rapidly developing, and where, as a rule, lands are rapidly augmenting in value. Voorhies v. Bank, 10 Pet. 449; Shawhan v. Loffer, 24 Iowa. Sound public policy is concerned in giving stability to titles acquired in good faith at administrator’s sales. Unless such titles enjoy public and professional confidence, lands which it is necessary to sell to pay the *210debts of the intestate or testator will bring very inadequate prices. This would result in the manifest injury of heirs in general. Unless such sales, when made in good faith by the administrator and under the order of the court, can be upheld, all the manifold evils of doubtful ownership will be the result.
This public policy, based upon the desire to quiet titles, to repress litigation, to encourage improvement, was obviously the reason why the legislature enacted, for titles acquired at administrator’s sales, a special five years’ limitation, without exception as to minors or non-residents.
This statute is in this language: “No action for the recovery of any real estate sold by an executor can be sustained by any person claiming under the deceased, unless brought within five years next after the sale.” Code 1851, § 1356; Kev. § 2388.
If I should concede, which for the purposes of this case I do, that the failure to serve the heir with notice would have enabled her to avoid the sale made by the administrator if she had brought her action within five years, still I maintain that this objection, though it might have been available if made within the five years, comes too late if not made until after the lapse of that period.
In this case we have the following facts:
1. The death of the intestate owning the lands and the due appointment of an administrator.
2. An application or petition by the administrator for the sale of the real estate, making the infant heir and her mother parties defendant, and asking that a guardian ad litem be appointed to defend for the infant.
3. Appointment of such guardian, and his answer; also the answer and consent of the mother to the sale, no fraud or collusion being shown or imputed.
é. Order of sale made by the proper court; a sale for ' full value; sale and deed approved by the court; posses*211sion taken and kept by the purchaser for more than five years.
Under these.circumstances, I am of opinion that this is a fitting case for the application of the statute of limitations, and that it operates to protect the purchaser’s title; and this whether the statute requirement as to notice, contained in section 1344 of the Code, be directory only or mandatory.
This opinion rests not only upon the plain language of the statute, which broadly, and without making any exception, declares that “ no action for the recovery of any real estate sold Toy cm executor can be sustained by any person claiming under the deceased, unless brought within five years next after the sale,” but finds no little support in the legislative history of the statute authorizing such sales, and in the language of the section (1344) relating to notice, and in the language of the previous statute of limitations respecting such titles. In the Blue Book, or Revised Statutes of 1843, chapter 10, page 706, related to the “ sale of lands for the paymen t of debts by executors, administrators and guardians.” This was in force down to the enactment of the Code of 1851.
The above-mentioned chapter 10 consisted of thirty-eight sections, to some of which reference will presently be made.
In tracing out the history of this statute, I found that it had been taken literally from the Michigan act as published in the Revised Statutes of Michigan of 1838, page 311. A prior statute of Michigan, different in effect, though not in substance, was the one which was before the Supreme Court of the United States in the well-known case of Grignon's Lessees v. Astor, before cited.
On further examination it was found that the Michigan act had been taken literally from the Massachusetts statute, section for section. It will be found in the Re*212vised Statutes of Massachusetts, 1836, chapter 71, page 452, and is also contained in the Eevised Statutes of Massachusetts of 1860, chapter 102, page 510. Section 8 of this prior statute (Blue Book, page 707) related to notice of the administrator's application to sell, and is in these words : “ No license shall be granted (by the District Court or court of probate) until notice of the petition, and of the time and place of hearing the same, shall have been given to all persons interested in the estate, that they may appear and show cause why the same should not be granted; such notice to be served on them personally fourteen days, at least, before the time appointed for hearing the petition, or to be published for three weeks successively in such newspaper as the court shall order; provided, however, if all the persons interested signify, in writing, their assent to such sale, the notice may be dispensed with.”
This was superseded by section 1344 of the Code of 1851, in these words:
“ Before any order to that effect (that is for a sale of lands) can be made, such notice as the court may prescribe must be given to all the persons interested in such real estate.”
These two provisions are alike in prescribing that “ notice shall be given to all persons interested in the real estate” proposed to be sold.
And if there is any difference in the two statutes respecting the importance attached to notice, that difference is in favor of the former statute.
Now the courts of Massachusetts and of Michigan both hold that proceedings under this statute are not like ordinary suits at law against a minor personally, but are in the nature of proceedings in rem and not in personam. Holmes v. Beal, 9 Cush. 223; Norton v. Norton, 5 id. 524; Arnold v. Sabin, 1 id. 525; Wilkinson v. Leland, *2132 Pet. 627, and remarks of Story, J.; Howard v. Moore, 2 Mich. 226; followed in Coon v. Fry, 6 id. 506.
And it lias been distinctly asserted by the Supreme Court of Massachusetts, that it is not necessary to ascertain in advance and name all persons interested, but that public notice of the application under section 8 may be given to all persons interested. Norton v. Norton; Arnold v. Sabin, just cited.
This is undoubtedly a proper construction of the statute on this point, and goes very far to show that such proceedings, if not strictly' in rem, are yet not like ordinary adversary actions in which the party proceeded against is always named in the notice, whether the service of such notice be actual or constructive.
Construing the Michigan statute the court held, in the two cases above cited from that statute, that if the decedent was an inhabitant of the county where the premises were situate and if letters of administration were granted by the proper court, and the proper court made the order to sell, the purchaser need look no further. The following is extracted from the opinion in Howard v. Moore, supra:
“ The purchaser is not bound to look behind the license for any other purpose than to see that it was granted by the probate court of the proper county, and that the person to whom it was granted was the administrator. It is a proceeding in rem and not in personam. The administrator represents the land. The action of the court operates on the estate, not on the heirs of the intestate ; the purchaser claims not their title, but one paramount.”
I make these citations and extracts, not for the purpose of approving or disapproving the doctrine asserted as to the nature of the proceeding as one in rem, but to show what was, probably, the intention of the legislature where this view of the statute is taken in the subsequent *214section, as to the limitation of actions for the recovery of property sold by administrators.
In the Iowa Blue Book, as in the Massachusetts and Michigan acts, was this provision as to limitations :
“ Section 35. No action, for the recovery of any real estate, sold by an executor or administrator, under the provisions of this chapter, shall be maintained by any heir or other person claiming under the deceased testator or intestate, unless it be commenced within five years next after the salethen follows a similar limitation as to guardians’ sales, and this is followed by an exception from the statute, of non-residents and minors, who have five years after their return or the removal of the disability in which to bring action.
In 1851, this section was superseded by section 1356 of the Code of Iowa, which is in these words :
“ No action for the recovery of any real estate sold by an executor can be sustained by any person claiming under the deceased, unless brought within five years next after the sale.” '
And in the Code of 1851, the limitation as to guardians’ sale is in this language:
“ Section 1508. No person can question the validity of such sale after the lapse of five years from the time it was made.” The provisions as to limitation in the two statutes are just the same, except that the Code omits the exceptions as to minors and non-residents contained in the prior statute. The purpose of this omission is manifest, viz. : to give still greater security to sales of this character. And such was the purpose of the provisions in the statute of the States from which the Iowa act was borrowed, as will be seen by referring to the cases before cited. Howard v. Moore, supra; Holmes v. Beal, supra.
In my opinion, the five years limitation thus provided *215extends to sales which would be considered invalid, as well as those which would be considered valid.
Indeed, it is the infirm and defective title, the one which otherwise could not stand the test of an action by the heir to recover, which was intended to be cured. A valid sale and a good title need not the remedial aid of any such statute. And if, in the case before us, the title of the purchaser from the administrator would have failed if attacked within the five years; yet, after that, its defects and infirmities were cured, and it was made whole by the healing touch of the statute.
The intention of the legislature to give stability to such titles, and to give a broad scope to statutes of limitations, is made more apparent when it is considered that this is a special statute on this subject; and that, without it, the heir would have had, under the general statute of limitations, ten years in which to bring his action (an effect which the legislature wished to avoid), and, in addition, one year after attaining his majority (Code 1851, §§ 1659, 1666); and this would run, not from the date of sale, but probably from the time the purchaser went into possession.
This same statute underwent a construction by the Supreme Court of Massachusetts, in Holmes v. Beal, 9 Cush. 223.
Dewey, J., giving the opinion of the court, says: “ It was contended by the demandant that this limitation of suit to five years applies only to estates ‘ sold ’ by an administrator, and, therefore, necessarily requires the tenant to establish a valid sale before he can avail himself of the statute. But this construction would render the provision in section 37 [literally the same as section 35 in the Iowa Blue Book, quoted supra], wholly nugatory.
“ In other cases, and in all cases, no more could be *216required than to establish a valid sale and conveyance by the executor, by those who would defeat the estate of an heir or devisee of the same.
“If an action were instituted within five years, the sale must be duly established, and upon the demandant’s view of the statute, if the party instituted his action after five years, no less a burden rests upon those claiming under an executor’s sale. This provision of the statute was intended to quiet titles, and is highly proper and reasonable for the protection of those holding under this species of title.”
The view I have taken as to the special statute of limitations has the full support of the judgment of the Supreme Court of Indiana. Van Cleave v. Milliken, 13 Ind. 105. In the case just cited, the special statute of that State, providing' a five years’ limitation for executors’ sales, was decided to apply to a sale by an administrator made by virtue of a proceeding in which the heirs were not notified, and where it was insisted that the sale was therefore void, "and that the purchaser acquired no title whatever. Possession had been taken as in the case at bar, and the Supreme Court of Indiana held that the statute of limitations protected the purchaser from the administrator, and that the heirs of the intestate were defeated.
The correctness of my opinion as to the statute of limitations, its policy, purpose and operation, is further corroborated by the cases of Leffingwell v. Warren, 2 Black. (U. S.) 599; Knox v. Cleveland, 13 Wis. 245; Pillow v. Roberts, 13 How. (U. S.) 472, 476.
The view of the statute of limitations hereinbefore expressed does not conflict with the decision of this court in Pursley v. Hayes, 22 Iowa, 11, 24. That was a case of a guardian’s sale, and this of an administrator’s sale. The provision of the statute as to notice is very different. *217Eev. §§ 2554 (1502), 2376 (1344). By comparing the two it will be seen that, if notice to the ward be regarded as jurisdictional in the case of a guardian’s petition to sell, it by no means follows that it'is jurisdictional in applications by the executor to sell. Besides, there is, to say the least, much more ground to treat the application by the guardian to sell as a personal proceeding against the ward than in the case of a lilce proceeding by an administrator.
And even with respect to a guardian’s sale, that case does not decide that the statute will not protect a title where there was no notice to the ward, provided the application to sell was made and petition filed by a duly appointed guardian, the sale ordered by the court, a purchase in good faith approved by the court, and more than five years’ possession taken and held thereunder by the purchaser.
The learned judge, in the course of his opinion, without “passing positively” upon the question, suggests a doubt that the statute does not go “ so far as to protect a title when there was no jurisdiction or power in the court to order the sale.” Where he leaves this question as to' guardianship sales, I leave it; and I have referred to the case of Pv/rsley v. Hayes for the purpose only of stating that, even conceding the same principles apply to the two classes of titles, there is nothing decided in it which is inconsistent with the views which I have herein expressed aud upon which my judgment rests. In that case we decided that the court had jurisdiction to order the sale, and hence there was no question in the case as to what would be the effect of the statute had the court ordered the sale without jurisdiction.
I think the judgment below should be
Affirmed,
*218Wright, J.Not differing from tbe ground stated for the affirmance of this judgment contained in the fore going opinion of the chief justice, I would reach the same result by the shorter route, in holding that the County Court had jurisdiction of the parties, and hence the power to order the sale by the administrator. This I believe to be the doctrine of the best considered cases in other States, and in entire accord with the prior rulings of this court. Without stopping to cite them, or to elaborate a question so often discussed in this and other States, I refer to the cases as collected by my brother Beck in his opinion. And this I am the more content to do, as the case must stand affirmed by a division of opinion.
By reason of the division of opinion above indicated, it follows that the judgment below must stand
Affirmed.