Wyman v. Campbell

COLLIER, C. J.

Considering the case, in the point of view in which it was presented to the court at the argument, we proceed to inquire :—

First. — Does the statute of eighteen hundred and twenty-two, relating to the sale of the real estate of deceased persons, repeal previous enactments on the same subject, and to what extent ?

Second. — Had the Ophans court jurisdiction of the subject matter of the proceeding on which it acted X

Third. — If it had jurisdiction, were its proceedings void, or only voidable — and if the latter, could they be collaterally impeached X

1. In order to a solution of the first question, it is necessary to review the several statutes upon the subject to which it relates. By the twenty-eighth section of the act of eighteen hundred and three, “ concerning wills, and the duty of executors, administrators and guardians,” it is enacted, .“That when any executor *227 or administrator shall discover or believe that the personal estate of his testator or intestate, is insufficient to pay the debts of the deceased, then it shall be the duty of such executor or administrator, as soon as may be, to make and exhibit on oath, a just and true account of the said personal estate and debts, as far as he can discover the same, to the Orphans’ court,” &c. Upon the exhibition of such account, it is directed, that a citation shall issue, requiring all persons, interested in the lands, tenements and hereditaments, of the deceased, to appear, at a time not less than forty days thereafter, and shew cause why so much of the lands, &c. as will be sufficient to pay the debts of the deceased, should not be sold. This citation is directed to be set up in three of the most public places of the county in which the lands, &c. are situate, for the space of thirty days, and be published for the same period in a public newspaper of the State.

By the second section of the act “concerning judicial proceedings,” passed in eighteen hundred and eighteen, it is enacted, “ That whenever it shall be made to appear to the satisfaction of any County court, that the estate of any deceased person, or those who are entitled to inherit the same, will be less injured by a sale of the land or a part thereof, for the payment of debts, than by a sale of slaves, such court may, on the petition of any party interested, cause a citation to issue to all other interested persons, if in the county, or when that is not the case by publication of notice in some newspaper, requiring such interested party or parties, to appear at the next county court, and shew cause, if any they can, why sale of the land belonging to the estate so situated should not be ordered; and on the return of such citation made known, or proof of the publication of the notice hereby required, at the next term of said court, if no cause be shewn, which the court deem sufficient, such court may order sale of such land, or part thereof, as may *228 be necessary to satisfy debts, without a sale of ne-groes,” &c

The first section of the act of eighteen hundred and twenty, entitled “An act supplementary to the laws now in force, concerning wills, intestates and guardians,” enacts, that whenever any person dies in-' testate, leaving an estate unincumbered by debts, so as to render unnecessary a sale of any part of it, the phief justice or presiding magistrate of the County pourt, shall, within three months after the personal representative, reports the same to be solvent, appoint 'five, commissioners, with authority to them or a majo-* rity of them, to make division or distribution of the estate, &c. “Provided always, that when such division or distribution can not be equitably effected, with-; out manifest injury to the legatees or other legal representatives, then, and in that case, such estate shall be exposed to public sale as heretofore.”

- The act of eighteen hundred and twenty-two, entitled “An act to authorise administrators to sell land; belonging to the estate of their, intestate, to which a complete title has not been obtained,” makes it lawful for an administrator, or an executor who has no power by the will to sell real estate, to pay debts, or to make a more equitable division among the heirs, de-visees, ,&c. to file a petition, in the county court of the county in which letters of administration or letters testamentary have been granted, setting forth •that the personal estate of his intestate or' testator, is not sufficient to pay the debts with which it is chargeable, or that the,real estate can not be fairly, equitably and beneficially divided among the heirs or divisees of the intestate or testator, without a sale thereof, setting out, and particularly describing, in such petition, the estate proposed to be sold, and the names of the heirs or devisees of such intestate or testator, and particularly stating which are of age, and which are infants or femes popert, The court is then directed to issue citations to *229 the heirs, &c. of full age, and to the husbands of such as are femes covert, and to appoint guardians to such as are infants. An issue is then to be made up between the petitioners and the guardians, &c., by the latter interposing a formal denial of the allegations of the petition. Proof is to be taken by .-deposition, and if the court shall determine in favor of a sale, commissioners are to be appointed to conduct it.

These were the only acts to be found in our statute book, at the time the order was made for a sale of the lot in dispute, which relate to the sale of the real estate of in-testates. And it may be remarked, that neither of these enactments expressly repeal the other — so that we have only to inquire, whether they so conflict in their terms, that they can not subsist together. To apply this test, we must first settle the interpretation of the act of eighteen hundred and twenty-two : -to do this we need not look beyond its terms for aids to lead the judgment, for it is so explicit in its provisions, as to speak conclusively its own meaning. It authorises an executor or administrator to file a petition in the County court of the county whence they derived their authority to act, asking an order for the sale ,of the real estate of their testator or intestate, — -first, where the personal estate is insufficient to pay debts; second, where the real estate can not be fairly, equitably and beneficially divided among the heirs or devisees thereof.

The act of eighteen hundred and twénty-two, embraces the entire ground covered by the act of eighteen hundred and three, and is still more extensive in its objects. It invests the personal representative with the right to petition the County court for an order to sell the real estate of his testator, or intestate, upon -the personal estate being insufficient to pay the debts with which it was chargeable. It varies materially the mode of procedure in order to obtain the decre for a sale, as well as the mode of its execution; and, *230 the two acts being incompatible with each other, the earlier must be taken to have been abrogated by the later.

The statute of eighteen hundred and eighteen, gives the right to the County court, on the petition of any party interested, to order the lands belonging to the estate of a deceased person, to be sold, whenever the estate or those entitled to inherit it, would be less injured thereby, than by a sale of the slaves. There can be no pretence for saying the act of eighteen hundred and eighteen is in conflict with that of eighteen hundred and twenty-two. They each contemplate objects entirely different, and may operate together.

The proviso of the act of eighteen hundred and twenty, authorises a sale of the land, when it can not be equitably divided without manifest injury to the legatees or heirs; and the impracticability of an equitable division, is a fact to be ascertained after commissioners shall have been appointed to effect it. This statute confers an authority upon the County court, which the act of eighteen hundred and twenty-two affirms, but to be exerted under different circumstances. In order to a proceeding under the former, the agency of an executor or administrator is unnecessary. The act does not point out any particular proof by which the court is to become informed, that an equitable division can not be made. The court then, may adopt the report of the commissioners, as sufficient, or it may institute an inquiry, and require further evidence to convince the judgment.

Under the act of eighteen hundred and twenty-two, the personal representative is the principal actor : he commences the proceeding by filing his petition in the County court, — parties being made and an issue made up, he goes on to make good its allegations by proof. It does not necessarily belong to the office of an administrator to see that the real estate of his in *231 testate is divided between bis heirs, or to obtain its sale, that the proceeds may be equitably distributed. The administrator may undertake this office, if he think proper, but if he omit it, he is not chargeable for an omission of legal duty. The one statute then, imposes upon the court, an obligation to act mero mo-tu; while the other only authorises its action upon the request of the personal representative. In this view they are entirely reconcileable; and each can perform its appropriate functions, without interference with the other.

The law never favors the repeal of a statute by implication, unless the repugnance be quite apparent; and such repeal, carrying with it a reflection on the wisdom of former legislatures, it has ever been confined to the repealing as little as possible, of precedent statutes.* And though two statutes be seemingly repugnant, yet, if there be no clause of non ob-stante, in the latter, they shall, if possible, have such construction, that the latter may net be a repeal of the former, by implication. —Rex vs Downs.†

In Me Cartee vs Orphans’ Society,‡ Woodworth, Justice, observes, that it is a well settled rule, that where there is a discrepancy between two statutes, such exposition should be made, as that both may stand, together, if practicable.§

We cite these cases, not for the purpose of shewing the correctness of our conclusions, for we do not admit any want of harmony between the acts of eighteen hundred and eighteen, eighteen hundred and twenty, and eighteen hundred and twenty-two; but we cite them rather, to prove the strong disposition *232 of the courts, to reconcile statutes seemingly contradictory, instead of favoring an implied repeal.

2. Having determined what statutes were in force when the order of sale was made, we are next brought to consider what facts are necessary to give jurisdiction to the Orphans’ court, under the act of eighteen hundred and twenty ; for it is clear that the proceeding, in the case before us, was intended to conform to that act.

It may be assumed as undeniable, that legislation is •the only source whence the Orphans’ court derives its entire jurisdiction over the subject matter, and if no warrant Can there be found for its acts, they must be taken to be coram non judice. Before we enter upon the examination of this head, let it be premised, for the sake of perspicuity, that we employ the terms County and Orphans’ court, as designating the same tribunal. Following the designation of the legislature, either appellation is proper; but when spoken of, with reference to its supervision over the estates of deceased persons, the latter is peculiarly so.

We understand that the proceeding of the Orphans’ court is in rem against the estate of the intestate, and not in personam. • The order by that court; for the sale of real estate, so far as the question of jurisdiction is concerned, may well be compared to the condemnation of goods by a court of exchequer, where jurisdiction attaches upon a seizure, — it merely professes to divest the title of the ancestor, without affecting the persons or other property of the heirs. McPherson vs Cunliff, et al.* So, an order, at the instance of an administrator, for leave to sell the crop of the intestate, or to sell at public sale,' his perishable property, is clearly a proceeding in rem, and requires no notice to those whose interests are concern *233 ed, in order to its validity. And in proceedings, according to the course of tlie admiralty, it is a universal rule, that a legal seizure, under lawful authority, gives jurisdiction, and decrees and sentences under such circumstances, divest the title of the whole world, and pass in rem adjudicata/m.* So, in á suit at common law, or in equity, where the court proceeds against the thing, a seizure of property by virtue of process issued from a court of competent authority, vests a complete jurisdiction in the court that issued it, over the thing seized. But in the case at bar, no process against the lot in controversy was necessary to give jurisdiction to the Orphans’ court, — the statute which governs the proceeding, does not require it, and the thing itself, was subjected to the action of the court, for the purposes of a sale, so soon as it was sufficiently informed that no division could be equitably effected, without injury to the heirs.

In the case of Bissell vs Briggs,† the general rule, that the court rendering a judgment, must have jurisdiction, both o.f the cause and the parties, is explicitly recognised. In that case the action was commenced by attachment, and the goods of the defendant seized; and the court held, that though he may not have had actual or constructive notice of the pendency of the action, yet it was competent to proceed to judgment, and sell the property attached, in order to its satisfaction. But if the goods should. prove insufficient, to the discharge of the judgment, the creditor could not sue an action on it outuf the State, because the defendant was not personally amenable to the jurisdiction of the court rendering it. This case shews that a court may acquire jurisdiction of a cause, where the proceeding is in rem, without reaching, by its process, *234 the person of the defendant, and that quoad the thing itself, the judgment is as conclusive, as if the defendant was brought in by notice. In the present case¿ the Orphans' court acquired a 'potential jurisdiction over the subject matter, by the death of the ancestor,, and that jurisdiction, if it did not attach earlier, was certainly put in actual exercise, whenever that court as-* sumed to act upon the report of the commissioners,, which disclosed the fact, that a division could not he equitably made, without injury to the heirs.

In the case of Thompson vs Tolmie,* the validity of the proceedings of an Orphans’ court, was collaterally drawn in question. The proceedings impugned, originated in the District of Columbia, and were founded on a law of Maryland, which declares, that in case the parties entitled to the intestate’s estate, can not agree upon a division; or in case any person entitled to any part, be a minor, application may be made to the court of the county where the estate lies, and the court shall appoint and issue a commission to five discreet men, who are required to adjudge and determine whether the estate will admit of being divided, without injury and loss to all the parties entitled; and to ascertain the value of the estate. And if the estate can be divided, without injury and loss to the parties, the commissioners are required to make partition of the same. And if they shall determine that the estate can not be divided without loss, they shall make return to the County court, and of the reasons upon which their judgment is formed; and also the real value of the estate. And if the judgment of the commissioners shall be confirmed by the County court, then the eldest son, child or person entitled, if of age, shall have the election to take the whole of the estate and pay to the others, their just proportion of the value, in mo *235 ney : and, on the refusal of the eldest child, the saíne election is given, in succession, to the other children, or persons entitled, who are of age : and if all refuse, the estate is to be sold under the direction of the commissioners, and the purchase money divided among the several persons entitled, according to their respective titles to the estate. But if all the- parties entitled shall be minors at the death of the intestate, the estate shall not be sold, until the eldest arrives to age, and the profits of the' estate shall be ■equally divided, in the mean time. Under this law, it was held, that the jurisdiction of the court over the subject matter of the proceedings, did not depend on the fact, that one of the heirs was of age, but attaches when the ancestor dies intestate, and any of the persons entitled to his estate is a minor : that the fact of the majority of one of the persons entitled, could only become material, in case the land was not susceptible of a division, without injury or loss to the parties. If it could be divided without injury, the commissioners were required to divide it, although all the heirs were minors. The materiality of the inquiry, whether any one of the hefrs was of age, was altogether contingent, and might never arise. And at all events, must depend upon the report of the commissioners, whether or not the property might be divided without injury. This must necessarily, therefore, be an inquiry arising in the course of the proceedings, and after the jurisdiction of the court attached.*

The court in Thompson vs Tolmie, in determining what facts give jurisdiction under the statute of Maryland, go quite beyond what the present case requires us to decide, and consequently very fully maintains the jurisdiction of the Orphans’ court of Mont-> gomery.

*236 Though the act of eighteen hundred and twenty, makes it the duty of the judge of the Orphans’ court, to appoint commissioners, with a view to a division and distri bution of the intestate’s estate, within three months . after the administrator shall have represented it solvent, yet there is no express inhibition of the court to act, without such representation from the adminisr-trator. And if the court appoint commissioners to divide the estate, we will not say, that the administrator may not arrest its action, — he certainly may, if the estate be insolvent, by so representing it, conceding, ex gratia, argumentó, that this initiatory step of the court, in order to its regularity, must be preceded by a report of solvency, it lies with the administrator to ob-r ject the want of it in abatement of the proceedings, "and does not concern the interests of any one else.— In the present case, the record discovers that the administrator had notice of the appointment of the commissioners, for he presented to the court, their report, shewing the impracticability of making an equitable division of the real estate of his intestate — and acts himself, as commissioner, in executing the order of .sale. Having done thus much, he impliedly admitted the sale of the lands to be unnecessary, for the payment of debts, and could not, thereafter, be heard to object, in any form, to the regularity of the proceeding of the Orphans’ court. The jurisdiction, then, being clearly maintainable, under the act of eighteen hundred and twenty, and as that is all we propose to shew, the strict conformity of the proceedings to its provisions, so as to relieve them from any valid objection on appeal or writ of error, need not be consider^ ,ed.

3. The jurisdiction of the Orphans’ court being shown, we are next to inquire, whether its proceedings can be collaterally impeached. In regard to proceedings in the ordinary course of law, it has been invariably holden, that the judgment of a court, having ju *237 risdiction of the parties, and the subject matter, is conclusive upon parties and privies ; and this, though the / record may abound with irregularities, which would authorize its reversal by a revising court. — Newell vs Newton;* Hale vs Williams;† Mills vs Duryee‡ Hampton vs McConnell;§ Young vs Gregory;ǁ Messier vs Amery;¶ Hopkins vs Lee;** Barr vs Gratz;†† Hughes vs Blake;‡‡ Wrightvs DeKline;§§ Homer vs Fish et al.ǁǁ Livermore vs Herschel et al. ;¶¶ Saxton vs Chamberlain;*** Smith vs Lewis;††† Smith vs Sherwood;‡‡‡ Ryer vs Atwater;§§§ Bigelow vs Stearns;ǁǁǁ McDowell vs Van Benson;¶¶¶ Mather vs Hood;a Borden vs Fitch;b Thatcher vs Gammon;c Smith vs Whiting;d Jacobs vs Hall;e Green vs Sarmiento;f State vs Wakely;g Hess vs Heebie;h Platner vs Best;i Young vs Black.j

It may then be assumed, that “ the whole current .of authorities, recognise the principle, that where a ..cause has been instituted in a proper forum, where all matters of defence were open to the party sued, the judgment is conclusive, until reversed on error,” upon 'the maxim de fide et officio judicis non rcciptur qucestio. And indeed a different course of decisiori would have gone to place in uncertainty the rights of meum and tuum,. and overturned the land-marks of property, the settlement of which, was a cardinal .object in the formation of the social compact. The sentences of courts, if liable to be incidentally revised, and set aside would *238 so impair their efficacy, as greatly to detract from the dignity of the tribunals of justice. Interest reipublicce ut sit finis litiwn, is a salutary maxim, — while it would .establish upon a firm basis, the interests which society proposes to protect, it imparts respectability to the the institutions of the country.

In Rose vs Himely,* it is said, if a judgment be merely irregular, the courts of the country pronouncing the sentence, were the exclusive judges of that irregularity, and their decision binds the world: if coram non judice, the sentence is as if it never was pronouced.— So, in Kempe’s lessee vs Kennedy,† in speaking of a court whose judgment is attempted to be impeached, the Supreme Court of the United States say, the judgment it gave wás erroneous, but it is a judgment, and until reversed, can not be disregarded-‡

• A decree in Chancery, directing the sale of real estate, when collaterally drawn in question, can not be impeached; nor is a purchaser bound to look beyond it, if the facts necessary to give jurisdiction appear on the face of the proceedings.

In Windham vs Windham;§ an indirect attack was made on a sale under the decree of a court of equity; whereupon the Lord Keeper remarked, “ You blow up with gun-poiuder, the whole jurisdiction, if such a pur-chassr is not protected. — See also Kitely vs Lamb.ǁ

The orders of an Orphans’ court, though not obtained by the prosecution of a suit in the ordinary form of procedure, are assimilated- to a judgment, and conclude all previous irregularities.¶ And in Selin vs Snyder** it was decided that the Orphans’ court, acting within its jurisdiction, had power to grant the order for a sale of the real estate of the intestate — that *239 the purchaser is bound to look to the jurisdiction, and if this is shewn by the record, it is not allowable to-dispute its verity, and thereby defeat the purchase.

In McPherson vs Cunliff, et al.* in which the validity of an order of sale came collaterally in question, the doctrine is advanced, “ that where there is a direct sentence on the very point, such is to be received as conclusive evidence, not to be impeached from within, but like all other acts of the highest judicial authority, is impeachable from withoutand it is not permitted to shew that the court was mistaken in the original action; it may be shewn that they were misled by some collusive act between the parties: and this was decided by the opinion of all the Judges of England, in the Duchess of Kingston’s trial, in the House of Lords”† Here is a direct assertion of the conclusiveness of' judgments upon all matters which were or are supposed by the record to have been before the court: these having passed in rent adjudica-tam, are not subject to revision by any indirect proceeding, and can only be reversed or set aside by an appellate court. But it is competent to impeach a judgment for fraud, when collaterally drawn in question; because proof shewing collusion, does not contradict the record, but is in itself the introduction of something extrinsic.

So, in the case of The Town of Canaan vs The Greenwood Turnpike Company,‡ Trumbull, Judge, in delivering the opinion of the court, said — “A judgment, decree, sentence, or order passed by a court of competent jurisdiction, which transfers, creates, or changes a title, o.r any interest in estate, real or personal, or which settles and determines a contested right, or which fixes-a duty on one of the parties litigant, is- *240 not only final as to the parties themselves, and all claiming by or under them, but furnishes conclusive evidence to all mankind, that the right, interest or duty belongs to the party to whom the court adjudged it.”

In Getvis and Wife vs Brown, et- al,* the decree of a court of ordinary, revoking the probate of a will, was held to be the judicial act of a court possessing jurisdiction over the subject matter. And the exercise of this 'right was held so inviolable, that evidence would not be permitted to contradict the matters adjudged, but it could only be set aside upon appeal. — 1 To the samé effect is Scott vs Hancock.†

In Mooers vs White,‡ chancellor Kent approves the doctrine of the conclusiveness of an order of sale, and places his opinion upon the competency of the jurisdiction of the court making it. .So, in The heirs of Ludlow vs Johnston,§ it was determined, that where the court making an order of sale had jurisdiction, a collateral inquiry will not be allowed to shew whether its jurisdiction was improperly exercised. Though the order be unadvisedly or erroneously made, the purchaser has acquired rights he cannot be divested of, by any indirect proceeding; and so far as the interests of purchasers are concerned, it is considered equally available as a judgment. And to the same effect is Sumner vs Parker,ǁ where, examining the conclusiveness of a decree of a judge of probate, the court remark, that if within the sphere of his authority, the judge mistakes the application of the law, the decree is voidable, and may be reversed by an appellate tribunal; and is in force, until its reversal. But if a decree be made upon a subject, without the jurisdiction of the judge, it needs no reversal, it is void. *241 And in Wales vs Willard,* the distinction between void and voidable judgments, is clearly recognised.— So, Perkins vs Fairfield,† is a direct authority to shew that a title acquired, by purchase made on sale, under an order for the sale of the real estate of an intestate, is valid, if the court making the order had jurisdiction, though its proceedings are erroneous. — To S. P. see Elliott et al. vs Peirsol et al.‡

In Thompson vs Tolmie,§ the decision in McPherson vs Cunliff, is cited with approbation, and the court reaffirm the doctrine, that where there is a fair sale, and the decree executed by a conveyance from the administrator, the purchaser will not be bound to look beyond the decree, if the facts, necessary to give the court jurisdiction, appear on the face of the proceedings. After a lapse of years, presumptions must be made in favor of what does not appear. And further, “ the decree of an Orphans’ court, in a case within its jurisdiction, is reversadle only on appeal, and not collaterally, in another suit.”

The same court, in the case of Voorhees vs The United States Bank,ǁ again declare, that the errors of a court do not impair the validity of its judgments ; and that any objection to its. full effect, when impugned by an indirect proceeding, must go to the authority under which it was rendered. If a court usurps jurisdiction, its ac i is void; but if, in the exercise of a lawful power, it errs in judgment, its acts are merely voidable, and remain in full force, until set aside by a revising tribunal. The Orphans’ court, in the exercise of its authority over the real estate of an intestate, has been assimilated to a court of equity. Considering the manner of its procedure, and the extent *242 of its discretion over the subject, the comparison is not perhaps entirely inapt.

No injury can result from the conclusion, that the jurisdiction being shewn, it is not competent to invalidate the order of sale, when introduced in evidence, as a link in the chain of title, — for an appeal, or writ of error is given by statute, “ from any judgment or order final, within vacation or term time” of the County court, to the Circuit or Supreme court. Let, then, the- review we have taken of the authorities, suffice to shew, that judicial sentences, whether designated as judgments, in the courts of law, decrees in Chancery, or orders of an Orphans’ court, if not founded in a usurpation of power, are conclusive, until reversed by a higher tribunal. We proceed now, to fortify this conclusion.

In the case of the Lessee of Goforth vs Longworth,* it is held to be well settled, that courts give a liberal construction to statutes authorising sales of real estate by executors and administrators. Public policy requires that all reasonablé presumptions should be made in support of such sales, especially respecting matters in pais. The number of titles thus derived, and the too frequent inaccuracy of clerks and others concerned in effecting these sales, renders this necessary. If a different rule prevailed, purchasers would be timid, and estates consequently be sold at a diminished value, to the prejudice of heirs and creditors.

In favor of innocent purchasers, the cases cited from 2 and 10 Peters’s Reports, and 11 Sergeant & Rawle’s Reports, very fully maintain the same doctrine : and it is certainly compatible with the purest principles of justice. Who would consent to become a purchaser at such a sale, if he was to be made responsible for every irregularity in the proceedings of the court that ordered it?

*243 Ágain: the rules of law are in general so framed, as to favor the fair purchaser. If a judgment is reversed, for error in the record, the defendant can only obtain restitution of the money, while the purchaser shall hold the property sold for its satisfaction.*

So it has often been made a question, whether a bona fide purchaser of land, under an execution issued upon a judgment which had been paid, but no satisfaction entered of record, would not be protected in his purchase.† Ásale under an irregular execution, which is merely voidable, passes title to the purchaser. — Blaine vs the “ Charles Carter."‡

It remains to examine more particularly the legal correctness of the charge given, as well as the refusal of that asked, in the Circuit court.

1. The instruction given asserts in the first place, that if the administrator sold the real estate of his intestate, without givingbond to sell according to law, his proceedings were absolutely void. The thirtieth section of the act of eighteen hundred and three requires, that the personal representative before he obtains the order of sale from the clerk of the Orphans’ court, shall enter into bond with sufficient sureties &c. This is the only statute which inquires such a bond, and was, of course, in the contemplation of the judge, when he gave the charge. The omission to execute this bond cannot be held to avoid the sale. It is made the duty of the clerk to require it, before he famishes the administrator with a copy of the order ; but if regardless of this requisition of the act, he issues a copy, an innocent purchaser can not be prejudiced. The purchaser is not to supervise the clerk, in the performance of his duties, but may well infer the execution of the bond, from the fact that he *244 has furnished the administrator with the warrant for a sale.

2. The second head of the charge is not very intelligible. If it be understood as asserting, that every thing necessary to legitimate the action of the Orphans’ court, should appear of record, or else the proceedings of that court were void, our views upon ano™ ther branch of the case, negative its correctness. But if the court intended to say, that the facts necessary to give jurisdiction, should appear of record, or else the proceedings were coramnonjudice, and of consequence, void, it was clearly right. —Kempe vs Kennedy;* Stanley vs Bank of America;† McCormick vs Sullivant;‡ Life vs Mitchell;§ Williams vs Blunt,ǁ Shivers vs Wilson et al.¶ Wickes vs Caulk;** Thatcher vs Powell;†† It is needless to undertake an interpretation of the meaning of the judge, as the judgment, without reference to this part of the charge, can not be sustained.

3. The bill of exceptions states that the defendant below moved the court to instruct the jury, that if they believed that the County court had jurisdiction of the subject matter, a defect in the notice and publication of the time of sale rendered the proceedings only voidable, and binding until reversed. This instruction was refused, and the court charged the jury, that all the requirements of the statute in such case, must appear of record, and in their, absence, the proceedings were absolutely void. There is certainly no error in the refusal to give the instruction asked, — for there was no evidence as to the notice of the time .of sale; and the opinion which the court was required to express, could have had no influence upon the verdict of the jury, but was abstract and irrelevant.

*245 Again : The motion for an instruction supposes that it is immaterial how the sale was conducted, if the court decreeing it, had jurisdiction of the subject matter of the proceeding, in this view, it is believed that it should have been denied. If the authority of the court is shewn of record, any subsequent irregularity in its action, would not make the decree void, but, at most, merely voidable. Yet, if the decree (as it should do) prescribes certain formalities, preparatory to the sale, they must be observed, or the authority to sell can not be well executed.. Where particular forms are pointed out, for the execution of a power, however immaterial they may appear, in themselves, these forms are considered as conditions, the observance of which can not be dispensed with. — Nixon vs Hyserott;* Hunt vs Chamberlains ex’ors;† Denning vs Smith;‡ Hudson vs Hudson;§ Combe vs Brazier.ǁ An authority to an administrator to sell the estate of his intestate, is a personal trust, and must be strictly pursued.—Bryan et al. vs Hinman;¶ Lockwood vs Sturdevant;** Berger et al. vs Duff.†† So also is an authority given to an executor, by will, to sell. — Pendleton and wife vs Fay et al.‡‡

It is necessary, then, that the administrator should do every thing required by the order to be done, previous to the sale, or the sale passes no title. But the purchaser can not be prejudiced by the omission of an administrator to perform any act, after the sale.— The interest acquired by his purchase can not be lost by a failure to make a return to the Orphans’ court, of the proceedings .under the order.§§

4. The last instruction complained of, is substanti *246 ally this, that unless the sale of the lot in controversy, was conducted agreeably to the act of eighteen hundred and twenty-two, governing the sale of intestates’ estates, the title of the heirs was not divested; and that that act repealed all others of a previous date, on the same subject, so far as they were in conflict. — We have already shewn, that the acts of eighteen hundred and eighteen and eighteen hundred and twenty, are in harmony with that of eighteen hundred and twenty-two, so far as they confer jurisdiction upon the Orphan’s court. The statute of eighteen hundred and three, so far as it; gives authority to that court, to direct the sale of lane!, is impliedly repealed by that of eighteen hundred and twenty-two, yet the mode of procedure it provides, still continues in force, and is applicable to proceedings under the acts of eighteen hundred and eighteen, and eighteen hundred and twenty, — and the charge maintaining the reverse, can not be sustained.

The'form in which some of the. instructions were asked and given, seems to us to have been objectionable, by referring questions of law to the jury : yet, as it can subserve no purpose, we deem it unnecessary to particularize them.

We are aware, that in this opinion, we run counter to some of the reasoning and conclusions of this court, in the case of Wiley Gayle vs White & Lesley* which was twice here. The very great respect we entertain for the learning of the Judges who concurred in the opinions, in that case, and the propriety of upholding the doctrine of stare decisis, have induced us to give to this case a more careful and elaborate examination. Principles, the opposite of those we have stated, would be productive of the severest and most extensive injury. It is impossible to conjecture the vast *247 amount of property holden under sales, made by order of an Orphans’ court; and we all know, that in at least three fourths of the cases, the records are remarkable for their want of technicality and legal precision. Let the rule be established and continued, which requires the record to disclose every material fact, and which makes indispensible to the passing of title, publication of the petition to sell, the return of the sale, the execution of a bond by the administrator, to the Orphans’ court, and every thing else which the statute prescribes as preparatory to a decree, and a large majority of the titles acquired through such a channel, would be overturned. In questions of doubt, arguments drawn ah inconvenienti, deserve great consideration — yet we need not invoke their aid in this case, for authority is full, to sustain every point we have determined.

It is worthy of remark, that the distinction between void and voidable judgments, seems not to have been considered'in the case of Wiley & Gayle vs White Lesley; but it is assumed that the proceedings of the Orphans’ court may be collaterally impeached, for an omission to disclose, by its record, an observance of every thing enjoined by statute, upon the ground that it is a court of limited jurisdiction. This reasoning-only proves the order to have been voidable, if the authority of the court was shewn, and could hold good, on an appeal or writ of error — but does not shew, that it was voider se,'so as to subject it to an indirect attack.

The views already expressed, relive us from a more extended review of the case last cited; and without attempting to recapitulate, it remains but to declare, that the judgment must be reversed and the cause remanded.

GOLDTHWATTE, J, not sitting iu this cause,

11 Rep. 63, Dyer R. 347.

3 Term Rep. 569.

6 Cowen R. 437.

1 Gall R. 150; 3 Serg. & R. 185; 4 Gill &. Johns. R. 1.

11 Serg. & Rawle, 430.

4 Craneh. 378; 1 Paine’s E. 62-6.

9 Mass. R. 462.

2 Peters R. 165.

To S. P.—see 11 Sergt. & Rawle’s R. 430, 431.

10 Pick. Rep. 470.

6 “ “ 232;

7 Cranch, 483.

3 Wheaton Rep. 134.

Hall’s Rep. 446.

1 Yeate’s Rep. 533; 2 Dall. R. 64.

6 Wheaton’s Rep. 109.

4 “ “ 213.

1 Mason Rep. 515.

1 Peters’s C. C. Rep. 199.

1 Pick. R. 435.

3..33

6 “ “ 223.

3 Johns.R. 157; 1 Johns. C. R. 322.

4 Conn. 276.

4 432.

19 Johns. Rep. 39.

12 “ “ 356.

8 “ “ 44.

5 “ “ 121.

12 Mass. Rep. 268.

11 “ “ 445.

12 “ “ 25.

1 Peters’s Rep. 74.

2Nott & M’Cord, 410.

6 Sergt. & Rawle. 57.

11 Johns. Rep. 630

7 Cranch. 567.

4 Cranch, 278.

5 “ 186.

To S. P. 11 Mass. R. 229.

3 Ch. Rep. 12.

2 “ " 405.

11 ;Sergt. & Rawle, 436.

7 Serg. & Rawle, 166.

11 Sergeant & Rawle’s Reports, 437.

9 State Trials, 368.

1 Conn. Rep. 1.

1 Nott & M’Cord, 329.

13 Mass. R. 162.

6 Johns. Ch. R. 384.

3 Ohio Rep. 560.

7 Mass. Rep. 79.

2 Mass. Rep. 120.

11 “ “ 237.

1 Peters, 340.

2 “ 168.

10 Pelers, 474.

4 Ohio Rep. 129.

10 Peter’s Reports, 475; 6 Har. & Johns. R. 204; 1 Cow. R. 642.

1 Cowen’s Reports, 622.

4 Cranch's Reports, 328.

1 Peter’s C. C. R. 30—36.

4 Dall. R. 11.

10 Wheat. R. 192.

2 Yerger’s Rep. 400.

2 Mass. R. 213.

5 Har. Johns. R. 130.

5 “ “ 36.

6 Wheat. R. 119.

5 Johns. R. 58.

3 Hall’s R. 336.

3 Johns. C. Rep. 344.

6 Munf. R. 352.

2 Dess. R. 431; Sug. on Pow. 364.

5 Day’s R. 211.

6 Conn. R. 373.

4 Johns. C. 368.

2 Paige’s C. R. 202.

5 Day's Ropoits, 211; 1 Dali Reports, 486; 5 Wheeler’s Ab. 258.

2 Stewart’s Reports, 331 ; 3 Stew. & Porter, 355.