Dissenting opinion of
Judge Hobson:This case involves the construction of the provision of section 429 of the Code of Practice, that, in actions to settle decedents’ estates, when the personalty is insufficient for the payment of the debts, “the court may order the real property descended or devised to the heirs or devisees, who may be parties to the action, or so much thereof as shall be necessary, to be sold for the payment of the residue of such debts.” The question is, upon what basis is it to be determined liow much land it is necessary to sell for the payment of the debts? When the land is divisible, and enough of it maj'- be sold to .pay the debts without impairing the' value of the part sold or that remaining, ■ the court shall order a sale of so much land as will pay the debts. But, if the property is indivisible, as in the case of a town lot occupied by a valuable building, then the whole must be sold, although bringing much more than the amount of the debt. The power of the chancellor to sell more land than required to pay the debts would not stop here; because it is his duty to protect, not to sacrifice, the interest of the heirs at law; and, where the property is divisible, but when much more valuable when sold together than if separated, he would have the power to sell. the whole rather than inflict a loss on the heirs, although *399some of them were infants. Tbe statute was not intended to place the chancellor in the narrow limits of Shylock’s bond, with power to cut just one pound nearest the heart, and not more or less “in the estimation of a hair.” He may decree the sale of more land than required to pay the debts when, in the exercise of a sound judgment, this is' proper, in view of the interest of all parties concerned, in settling the estate of deceased persons, the circuit courts of the State are not of special or limited jurisdiction, but possess broad discretionary powers, as in the settlement of other trusts, to do full justice to all concerned.
In making a sale under this section, where, for illustration, the debts are $5,000, and the land is worth $10,000, and two-thirds of it may be sold for $5,000, .the chancellor is not required to order a sale of two-thirds when the other third will only be worth- $2,500. The word “necessary” is not to be strictly construed, but liberally, with a view to promote the purposes of the section. Its object was to provide for the' payment of the decedent’s debt without unnecessary sacrifice of the interests of the heirs, and for this reason' the power to settle the estate was vested in the chancellor exercising his usual equity jurisdiction, as in .the settlement of other trusts. In this case it was averred that the debts were considerable, that a sale of a part of the land was necessary, and that it would be to the interest of the heirs for all the land to be sold. Each of the adult heirs filed an answer, in which they admitted this to be true, and joined in the prayer of fhe petition for a sale of all the land. The statutory guardian of one of the infant defendants filed a similar answer. The guardian ad litem for the other infant, who had no statutory guardian, filed a report, stating that he had examinéd the record, had n.o defense to make, and knew no reason why the prayer of the *400petition should not be granted. The judgment of the court recites the 'allegations' of the pleadings and orders a sale of the whole land, but directs the commissioner not to collect or take bond for the share of the infant Davis Track, who had no statutory guardian, but to ascertain the amount due him, the same to remain a lien on the land. Whether the allegations of(the pleading were sufficient to warrant the court in entering the judgment is a question not now presented. The court had the right to order a sale of the entire tract under certain circumstances. Whether the allegations of the' pleadings were sufficient to present a state of case under which a sale of all the land should be ordered, or only a part of it, was a question that the court had then to determine. In determining this question, he did not act as a court of special or limited jurisdiction, but in the exercise of his ordinary powers as chancellor in the settlement of trust estates. He had the same power as in other trusts, and was not under the penalty that if he departed a hair’s breadth frprn the letter of the law, under the pleadings, his judgment was void. No principle is better settled than that defective allegations do not make a judgment void, where the court has jurisdiction of the parties and the subject-matter. This precise question was fully considered and settled recently in Kimbrough v. Harbett (22 R. 1578) 110 Ky., 94 (60 S. W., 836,) and Bitzer v. Mercke (23 R. 670) 111 Ky., 297 (63 S. W., 771.) In those cases a number of authorities are referred to. If, in addition to the averments of the pleadings in this case, it had been averred that a sale of enough of the land to pay the debts would’ leave .less to the heirs than a sale of the whole, and that what would be left would be indivisible between them without materially impairing their interest, there is enough in the record to raise the presumption of the truth of the *401averments; for, though it may be presumed that the land was divisible, so that part of it might be sold for the payment of the debts, it can not be presumed that what would then be left would be divisible between all the heirs. So the case comes to this: The chancellor, presumptively, had full power to do all he did, but there was a failure of the pleader to set out the facts as fully as he should have done. The opinion of the i court ignores the distinction between a- want of jurisdiction over the case and a want of power to do the act complained of. If the court has jurisdiction over the case, and grants relief which he has no power to grant under the pleading, the judgment is illegal. It is a ease of «illegal- exercise of power, but the judgment is not void. Thus, by section 694, Civ. Code Prac., no sale can be ordered in certain contingencies, and by section 696 realty can not be sold upon less credit than six months; but a sale in violation of these provisions1 is only voidable, and not void. The land in the hands of the heirs was assets in equity for the payment of the debts of the decedent. These assets the creditors themselves might have subjected by a proceeding in equity. The statute authorized tlie executor, as trustee for them, to bring the action in equity- for the settlement of the estate and the payment of 'the debts. It was nothing more than an action by a trustee, charged with a trust, for the execution of that trust. The chancellor, sitting as a court of conscience, might compel the defendants to do that which they ought to have done, but which the infants were unable to do by reason of their incapacity. In executing this trust it was his duty to save the rights of all the parties, so far as practicable, and to make an order for the sale of the land in such a way as to injure the defendants as little *402as possible. He had jurisdiction of the subject-matter and of the parties, and, if he erred as to the sufficiency of the pleadings or proof, or acted prematurely, his judgment stands just as if it had beén rendered in any other action for the settlement of a trust in a court of equity, and, however erroneous it may be, it is not void. Gill v. Givin’s Adm’r, 61 Ky., 197, is rested by the court on the wording of the statute then in force. The judgment may have been right if the sale was only voidable, and not absolutely void. Lee v. Page, 12 Bush, 202. The court said it was void, but in the subsequent case of Thornton v. McGrath, 62 Ky., 251, the court held that the word “void,” as used in reference to such sales, meant voidable. The statute under which Gill v. Givin’s Adm’r, was decided is no longer in force, and, even as to infants’ land, the present statutes provide that if a certain bond is not given the sale shall be “absolutely void and of no effect.” This clearly iinplies that the sale is not to be absolutely void for other irregularities, for the one exception by the-statute is the exclusion of others. Civ. Code Prac., sec. 493, subsec. 3.
None of the other cases cited arose in suits to settle decedents’ estates, and all of them were decided before the adoption of the present’Civil Code of Practice, which was clearly intended to modify the rigor of the former rule. It is a noteworthy fact that since,the decision of Thornton v. McGrath, in February, 1864, no sale of infants’ land has been adjudged void. In Walker v. Smyser’s Ex’rs, 80 Ky., 620 (4 R. 662) an earnest effort was made to get the court to adjudge the sale void; but the court upheld the sale, under the general power of the court of chancery to execute a trust. In Robinson v. Redman, 63 Ky., 82, it was held, following Thornton v. McGrath, that the provisions of tble statute are merely directory to the court, and their nonob*403servance is error merely, “for which an'aggrieved party to the judgment might reverse; yet, the court having jurisdiction, its judgment is not void because of these errors, but is binding until reversed.” In Lee v. Page, 12 Bush, 202, the authorities are reviewed, and the holding in Thornton v. McGrath, that such sales are voidable and not void, was approved. This case was followed in Revill’s Heirs v. Claxon’s Heirs, 12 Bush, 558, where the.court said: “But, the sale having been made and reported, the court had jurisdiction to decide whether it had been made according to law, and the confirmation of the report was a decision that the sale had been so made; and, however erroneous that decision may have been, the judgment of confirmation was not void. Dawson v. Litsey, 10 Bush, 408.”
In Henning v. Harrison, 13 Bush, 723, the doctrine of these cases- was adhered to, and it was said: “It is only when the required bond is not given that the judgment is void.” The same conclusion was announced in Kendall v. Briggs, 81 Ky., 123. (4 R. 854). In Spencer v. Milliken, 4 Ky. Law Rep., 856; Bronston v. Davidson, Id., 56; Johnson v. McDyer (11 R. 29) 9 S. W., 778; McNew v. Martin (22 R. 1175) 60 S. W., 412, —the above decisions were recognized. The rule laid down in the latter decisions has evidently been acted upon and acquiesced in by the Legislature in the adoption of the present statute, and, even if this was regarded a sale of infants’ land under these statutes, the sale would be voidable, and not void, however erroneous the judgment may have been. It has been the settled policy of this State to uphold judicial sales. Many titles have been made and large amounts of money have been invested on the faith of the decisions above referred to. It seems to be unwise and unwarranted for this court to depart from them after they have been recognized as the law of. the State for *404more than a third of a century. The infant has the right of appeal until one year after his majority, and thereby any injustice that may have been done him may ordinarily be corrected. This haá been supposed to be sufficient to protect his interest, and I see no reason now for departing from a rule of property so long recognized. I therefore dissent from the opinion.
Chief Justice I’aynter and Judge Guffy concur in this dissent.