(dissenting) : Although not free from doubt, I incline to the view that the statute of limitations does not apply to a void sale. To give the. probate court jurisdiction to order a sale of land by *481an administrator, notice to the heirs is essential. (Michel v. Hicks, 19 Kan. 578, 21 Am. Rep. 161; Rogers v. Clemmans, 26 Kan. 522; C. K. & N. Rly. Co. v. Cook, 43 Kan. 83, 22 Pac. 988.) A sale without jurisdiction is a nullity, and the purchaser acquires no title. (Coulson v. Wing, 42 Kan. 507, 22 Pac. 570, 16 Am. St. Rep. 503.) An absolutely void sale and deed never start the statute of limitations to running. (Taylor v. Miles, 5 Kan. 498, 7 Am. Rep. 558; Carithers v. Weaver, 7 Kan. 110, 123; Hall’s Heirs v. Dodge, 18 Kan. 277; Duffitt v. Tuhan, 28 Kan. 292; Delashmutt v. Parrent, 39 Kan. 548, 18 Pac. 712.)
The statute of limitations invoked applies to executors’, administrators’ or guardians’ sales upon an order or judgment directing such sales. It can have no application if there is no order or judgment directing such sales. If there is an entire absence of jurisdiction in the court to order a sale then there is no sale, and hence no room for the application of the statute. If the sale and deed are absolute nullities it is difficult to understand how they can be cured by a statute of limitations — how lapse of time alone can make something out of nothing. It may be that such a deed, in connection with adverse possession, would start the statute of limitations which would ultimately bar the heirs, as some of the cited cases hold; but a sale which is void for want of jurisdiction, and which conveys no title to a purchaser, does not set the statute in motion.
The sale in this instance was no better than if the land of third persons had been embraced in the order of sale and deed. The language of the opinion in Young v. Walker, 26 Kan. 242, sanctions the view that the statute of limitations applies to a void deed, but in that case there was a notice, and therefore no want of jurisdiction. The proceedings were irregular, and the deed voidable, but it could not be regarded as a nullity. It is true that some plausible arguments have been advanced to sustain the position of the court, and *482quite a number of authorities have been cited which tend to support that view. Several of those cases, it will be observed, were treating of voidable, rather than void, sales; and several of the decisions were rested on the fact that there was adverse possession in connection with the irregular proceedings. The supreme court of California, for instance, applies the statute of limitations to void probate sales, and yet, in Gage v. Downey, 94 Cal. 241, 29 Pac. 635, it was held that if no possession is taken by the purchaser at a void probate sale the statute of limitations will not affect the question of title or confer title upon the purchaser, but that the title will still remain in the heirs and their grantees.
As tending to sustain the view that the statute of limitations does not apply to probate sales which are mere nullities, I cite Howbert v. Heyle, 47 Kan. 58, 27 Pac. 116; Pursley v. Hayes, 22 Iowa, 11, 26, 92 Am. Dec. 350; Good v. Norley, 28 Iowa, 188; Boyles v. Boyles, 37 Iowa, 592; Chadbourne v. Rackliff, 30 Me. 350.