DISSENTING- OPINION.
FEEEISS, J.— The petition of the administrator for an order to sell all the interest of the estate in the realty is evidently based on Secs. 147 and 148, *672R. S. 1909. It was so construed by the probate court, as is apparent from the terms of the order of sale, and so stated in the return of respondent Holtcamp, judge of that court.
The relators contend that under the facts the probate court was without jurisdiction to make the order of sale. This contention presents the only question necessary for consideration, namely: Did the probate court act within its jurisdiction? Our writ of prohibition does not issue to restrain a court, acting within the limits of its jurisdiction, from committing error, nor to correct errors after they are committed. Such erroneous rulings, if any, can be corrected only on appeal. Under our system of practice this rule is essential, however desirable it might be in particular instances to lay it aside. This court, in a case involving an order of the probate court to sell real estate, defines jurisdiction as follows:
“ ‘Jurisdiction may be defined to be the right to adjudicate concerning the subject-matter in a given case. To constitute this there are three essentials: First, the court must have cognizance of the class of cases to which the one to be adjudged belongs; second, the proper parties must'be present; and, third, the point decided must be, in substance and effect, within the issue.’ Munday v. Vail, 34 N. J. L. 422.” [Stark v. Kirchgraber, 186 Mo. l. c. 645.]
I think there can be no question as to the existence here of the first and third essentials as defined above. The probate court is given authority by statute to order the sale of real estate in a proper case. Under sections 150 and 154, real estate may be ordered sold to pay debts. Under section 143 the interest of the estate in real estate, which has been purchased but not fully paid for, may be ordered sold. Sections 147 and 148 provide for the sale of real estate for the purpose of redeeming mortgaged land, and also (Sec. 148) for selling the equity of redemption. In Jack*673son v. Magruder, 51 Mo. 55, speaking of statutes similar to the one cited, it is said: “Under our administration law as it stood when this sale was made, and as it still exists, the county court had the power to order land to be sold for the purpose of redeeming mortgages on other lands, or the court might make a special order to sell the equity of redemption of the mortgaged premises. But the court also had the power, on application of the administrator or a creditor of the estate, to make a general order for the sale of the real estate for the payment of debts, embracing equities of redemption and all other interests in lands.”
In State to use v. Schleiffarth, 9 Mo. App. l. c. 433, it is said: “The statute provides (Secs. 143, 144) that when any person dies owning an equity of redemption, the probate court may order the administrator to redeem the property out of the personalty, or by the sale of other real estate, or may order the equity of redemption to be sold.”
Were the proper parties before the court? No notice was given to the heirs as required by the statute (Sec. 152), and if this were a proceeding under section 150, et seq., such failure would defeat the jurisdiction of the probate court. [Hutchinson v. Shelley, 133 Mo. 400.]
Sections 147 and 148, which must be read together, provide as follows:
“Sec. 147. If any person die leaving land incumbered by mortgage or deed of trust, or any lien whatever, or owning any equity of redemption, or leaving mortgaged or pledged any personal property, and shall not have devised the same or provided for redemption thereof by will, the court shall have power, if, in its judgment, it will promote the interest of the estate and not be prejudicial to creditors, to order the executor or administrator to redeem the same out *674of the personal assets of the estate, or to order the sale of other real estate to redeem such land or personal property so encumbered, and also to order the executor or administrator to mortgage or pledge any personal property of the estate in his hands for the purpose of raising and providing money with which to redeem said premises so encumbered.
“Sec. 148. If such redemption would injure the estate or creditors, or there would not be assets to redeem such estate after payment of debts, the court shall order all the right, title and interest of the estate to such property to be sold at public or private sale.”
No provision is made for any notice to heirs in a proceeding under these sections. We have been cited to no case involving the construction of said sections, and, after diligent search, I have found none.
Sections 142 and 143 are closely related to sections 147 and 148, and involve the same proceedings under substantially similar conditions. They are as follows
“Sec. 142. If any person die, having purchased real estate, and shall not have completed the payment, nor devised such real estate, nor provided for the payment by will, and the completion of such payment would be beneficial to the estate and not injurious to creditors, the executor or administrator, by order of the court, may complete such payment out of the assets in his hands, and such estate shall be disposed of as other real estate.
“Sec. 143. If the court believe that, after the payment of debts, there will not be sufficient assets to pay for such real estate, the court may order the executor or administrator to sell all the right, title and interest of the deceased therein.”
This court decided in Garrett v. Bicknell, 64 Mo. 404, that no petition was necessary under these sections, and in that connection said:
*675“It will be perceived, upon an examination of the law regulating the- disposition which shall be made of a decedent’s interest in land bought by him in his lifetime and not paid for by him, that the Legislature intended to invest the county and prohate courts with powers freed from many of the restrictions imposed by those sections regulating sales of land on petition of the administrator, executor or creditor for the sale of real estate to pay debts.”
The case of Valle v. Fleming, 19 Mo. 454, inferentially holds that no notice would be necessary under these sections.
The statutes providing for the sale of the right, title and interest only of the deceased in incumbered property, Avhether such incumbrance is by deed of trust or vendor’s lien, make no provision for petition or notice. It is only when we come to the provisions for the sale of real property to pay debts that we find particular directions as to notice, publications, filing accounts, etc. I therefore conclude that in this proceeding under sections 147 and 148, the provisions of sections 151, 152, 153, providing for the filing of lists of debts, notice, publication, etc., do not apply, and that there is no want of proper parties before the court, nor failure of other jurisdictional facts.
The Legislature, no doubt, regarded proceedings to sell real estate to pay debts as essentially different, in relation to the interests of the heirs, from proceedings to protect incumbered property and dispose of equities, and hence the minute restrictions as to the former which are wanting in the latter cases. However that may‘be, the statute plainly makes a distinction in the matter of jurisdiction of the court. The probate court has jurisdiction to pass judgment on the points presented, namely, whether under the facts it was proper to order the sale of the equities in the real estate. The propriety of the ruling can be tested on appeal from any order it may make confirming a sale. *676[Wilson v. Brown, 21 Mo. 410; McVey v. McVey, 51 Mo. 420; Desloge v. Tucker, 196 Mo. 587; Sec. 289, R. S. 1909.]
For the foregoing, reasons I respectfully dissent from the opinion of the court.
Kevmish, J., concurs.