{ "id": 8726794, "name": "Sturdy & Wife et al. vs. Jacoway", "name_abbreviation": "Sturdy v. Jacoway", "decision_date": "1858-01", "docket_number": "", "first_page": "499", "last_page": "519", "citations": [ { "type": "official", "cite": "19 Ark. 499" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "18 Howard, 104", "category": "reporters:state", "reporter": "Howard", "opinion_index": -1 }, { "cite": "20 Wend. 485", "category": "reporters:state", "reporter": "Wend.", "opinion_index": -1 }, { "cite": "5 Miss. 300", "category": "reporters:state", "reporter": "Miss.", "opinion_index": -1 }, { "cite": "13 Ark. 107", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "2 Howard 340", "category": "reporters:state", "reporter": "Howard", "opinion_index": -1 }, { "cite": "25 Miss. 31", "category": "reporters:state", "reporter": "Miss.", "case_ids": [ 8837469 ], "opinion_index": -1, "case_paths": [ "/miss/25/0031-01" ] }, { "cite": "17 Miss. 507", "category": "reporters:state", "reporter": "Miss.", "opinion_index": -1 }, { "cite": "2 How. 319", "category": "reporters:scotus_early", "reporter": "How.", "case_ids": [ 3327971 ], "opinion_index": -1, "case_paths": [ "/us/43/0319-01" ] }, { "cite": "5 Blackf. 402", "category": "reporters:state", "reporter": "Blackf.", "case_ids": [ 1379129 ], "opinion_index": -1, "case_paths": [ "/blackf/5/0402-01" ] }, { "cite": "6 Port. 219", "category": "reporters:state", "reporter": "Port.", "case_ids": [ 11256088 ], "opinion_index": -1, "case_paths": [ "/port/6/0219-01" ] }, { "cite": "13 Ark. 177", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8727966 ], "opinion_index": -1, "case_paths": [ "/ark/13/0177-01" ] }, { "cite": "3 Wheaton 246", "category": "reporters:scotus_early", "reporter": "Wheat.", "case_ids": [ 1443465 ], "opinion_index": -1, "case_paths": [ "/us/16/0246-01" ] }, { "cite": "11 Mass. 227", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 2053375 ], "opinion_index": -1, "case_paths": [ "/mass/11/0210-01" ] }, { "cite": "2 Peters 165", "category": "reporters:scotus_early", "reporter": "Pet.", "weight": 2, "opinion_index": -1 }, { "cite": "14 Peters 458", "category": "reporters:scotus_early", "reporter": "Pet.", "opinion_index": -1 }, { "cite": "1 Peters 340", "category": "reporters:scotus_early", "reporter": "Pet.", "opinion_index": -1 }, { "cite": "2 How. 343", "category": "reporters:scotus_early", "reporter": "How.", "opinion_index": -1 }, { "cite": "6 Peters 709", "category": "reporters:scotus_early", "reporter": "Pet.", "weight": 2, "opinion_index": -1 }, { "cite": "6 Port. 234", "category": "reporters:state", "reporter": "Port.", "opinion_index": -1 }, { "cite": "4 Mass. 505", "category": "reporters:state", "reporter": "Mass.", "opinion_index": -1 }, { "cite": "6 John. 94", "category": "reporters:state", "reporter": "Johns.", "case_ids": [ 2132767 ], "opinion_index": -1, "case_paths": [ "/johns/6/0094-01" ] }, { "cite": "10 Wend. 87", "category": "reporters:state", "reporter": "Wend.", "case_ids": [ 2012891 ], "opinion_index": -1, "case_paths": [ "/wend/10/0087-01" ] }, { "cite": "26 Wend. 485", "category": "reporters:state", "reporter": "Wend.", "case_ids": [ 2028372 ], "opinion_index": -1, "case_paths": [ "/wend/26/0485-01" ] }, { "cite": "14 Leigh 584", "category": "reporters:state", "reporter": "Leigh", "opinion_index": -1 }, { "cite": "1 Dev. 187", "category": "reporters:state", "reporter": "Dev.", "case_ids": [ 8686962 ], "opinion_index": -1, "case_paths": [ "/nc/12/0187-01" ] }, { "cite": "8 B. Mon. 139", "category": "reporters:state", "reporter": "B. Mon.", "opinion_index": -1 }, { "cite": "12 Mo. 580", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 318016 ], "opinion_index": -1, "case_paths": [ "/mo/12/0580-01" ] }, { "cite": "1 S. & Mar. 140", "category": "reporters:state", "reporter": "S. & M.", "opinion_index": -1 }, { "cite": "15 Ohio 444", "category": "reporters:state", "reporter": "Ohio", "opinion_index": -1 }, { "cite": "6 Conn. 508", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 6755569 ], "opinion_index": -1, "case_paths": [ "/conn/6/0508-01" ] }, { "cite": "20 Verm. 65", "category": "reporters:state", "reporter": "Vt.", "case_ids": [ 11266881 ], "opinion_index": -1, "case_paths": [ "/vt/20/0065-01" ] }, { "cite": "9 Mass. 464", "category": "reporters:state", "reporter": "Mass.", "opinion_index": -1 }, { "cite": "10 Humph. 223", "category": "reporters:state", "reporter": "Hum.", "case_ids": [ 11266899 ], "opinion_index": -1, "case_paths": [ "/tenn/29/0223-01" ] }, { "cite": "11 Wend. 652", "category": "reporters:state", "reporter": "Wend.", "weight": 2, "opinion_index": -1 }, { "cite": "7 S. & M. 449", "category": "reporters:state", "reporter": "S. & M.", "case_ids": [ 8840741 ], "opinion_index": -1, "case_paths": [ "/miss/15/0449-01" ] }, { "cite": "8 Cow. 361", "category": "reporters:state", "reporter": "Cow.", "case_ids": [ 2037415 ], "pin_cites": [ { "page": "370" } ], "opinion_index": -1, "case_paths": [ "/cow/8/0361-01" ] }, { "cite": "21 Wend. 647", "category": "reporters:state", "reporter": "Wend.", "opinion_index": -1 }, { "cite": "4 Litt. 228", "category": "reporters:state", "reporter": "Litt.", "opinion_index": -1 }, { "cite": "10 Humph. 610", "category": "reporters:state", "reporter": "Hum.", "opinion_index": -1 }, { "cite": "15 Ala. 761", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 3080452 ], "opinion_index": -1, "case_paths": [ "/ala/15/0761-01" ] }, { "cite": "7 Mass. 488", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 1999585 ], "opinion_index": -1, "case_paths": [ "/mass/7/0409-01" ] }, { "cite": "4 Dana 567", "category": "reporters:state", "reporter": "Dana", "opinion_index": -1 }, { "cite": "9 Conn. 10", "category": "reporters:state", "reporter": "Conn.", "opinion_index": -1 }, { "cite": "1 Conn. Rep. 467", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 12130330 ], "opinion_index": -1, "case_paths": [ "/conn/1/0467-01" ] }, { "cite": "6 Johns. Ch. Rep. 381", "category": "reporters:state", "reporter": "Johns. Ch.", "pin_cites": [ { "page": "2, 385-6" } ], "opinion_index": -1 }, { "cite": "12 Wend. 54", "category": "reporters:state", "reporter": "Wend.", "opinion_index": -1 }, { "cite": "7 How. 181", "category": "reporters:scotus_early", "reporter": "How.", "opinion_index": -1 }, { "cite": "11 How. 437", "category": "reporters:scotus_early", "reporter": "How.", "case_ids": [ 583782 ], "opinion_index": -1, "case_paths": [ "/us/52/0437-01" ] }, { "cite": "2 How. 57", "category": "reporters:scotus_early", "reporter": "How.", "opinion_index": -1 }, { "cite": "8 How. 495", "category": "reporters:scotus_early", "reporter": "How.", "case_ids": [ 3350446 ], "opinion_index": -1, "case_paths": [ "/us/49/0495-01" ] }, { "cite": "9 Wheat. 119", "category": "reporters:scotus_early", "reporter": "Wheat.", "opinion_index": -1 }, { "cite": "20 Wend. 241", "category": "reporters:state", "reporter": "Wend.", "case_ids": [ 2150268 ], "opinion_index": -1, "case_paths": [ "/wend/20/0241-01" ] }, { "cite": "7 Wend. 148", "category": "reporters:state", "reporter": "Wend.", "case_ids": [ 2009741 ], "opinion_index": -1, "case_paths": [ "/wend/7/0148-01" ] }, { "cite": "21 Wend. 40", "category": "reporters:state", "reporter": "Wend.", "case_ids": [ 2151926 ], "opinion_index": -1, "case_paths": [ "/wend/21/0040-01" ] }, { "cite": "1 Hill 141", "category": "reporters:state", "reporter": "Hill", "case_ids": [ 8483600 ], "opinion_index": -1, "case_paths": [ "/scl/19/0141-01" ] }, { "cite": "13 Wend. 465", "category": "reporters:state", "reporter": "Wend.", "case_ids": [ 2015670 ], "opinion_index": -1, "case_paths": [ "/wend/13/0465-01" ] }, { "cite": "6 J. J. Marsh. 11", "category": "reporters:state", "reporter": "J.J. Marsh.", "case_ids": [ 8517686 ], "pin_cites": [ { "page": "14, 29, 30, 193, 197" } ], "opinion_index": -1, "case_paths": [ "/ky/29/0011-01" ] }, { "cite": "11 Wend. 64", "category": "reporters:state", "reporter": "Wend.", "opinion_index": -1 }, { "cite": "19 John. 83", "category": "reporters:state", "reporter": "Johns.", "opinion_index": -1 }, { "cite": "6 Texas 185", "category": "reporters:state", "reporter": "Tex.", "case_ids": [ 6768688 ], "opinion_index": -1, "case_paths": [ "/tex/6/0093-01" ] }, { "cite": "9 Gill. 90", "category": "reporters:state", "reporter": "Gill", "case_ids": [ 1712571 ], "opinion_index": -1, "case_paths": [ "/gill/9/0090-01" ] }, { "cite": "15 Wend. 449", "category": "reporters:state", "reporter": "Wend.", "case_ids": [ 2018812 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/wend/15/0449-01" ] }, { "cite": "2 Wash. C. C. Rep. 475", "category": "reporters:federal", "reporter": "Wash. C. C.", "case_ids": [ 6122670 ], "opinion_index": -1, "case_paths": [ "/f-cas/1/0486-01" ] }, { "cite": "14 Serg. & Rawle, 181", "category": "reporters:state", "reporter": "Serg. & Rawle", "case_ids": [ 8877958 ], "opinion_index": -1, "case_paths": [ "/serg-rawl/14/0181-01" ] }, { "cite": "11 Serg. & Rawle 422", "category": "reporters:state", "reporter": "Serg. & Rawle", "case_ids": [ 1812769 ], "pin_cites": [ { "page": "429" } ], "opinion_index": -1, "case_paths": [ "/serg-rawl/11/0422-01" ] }, { "cite": "4 Wend. 436", "category": "reporters:state", "reporter": "Wend.", "case_ids": [ 2005492 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/wend/4/0436-01" ] }, { "cite": "4 Mass. 117", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 2003856 ], "opinion_index": -1, "case_paths": [ "/mass/4/0109-01" ] }, { "cite": "11 Mass. Rep. 507", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 2053412 ], "pin_cites": [ { "page": "512" } ], "opinion_index": -1, "case_paths": [ "/mass/11/0455-01" ] }, { "cite": "14 Johns. Rep. 430", "category": "reporters:state", "reporter": "Johns. Rep.", "opinion_index": -1 }, { "cite": "11 How. 460", "category": "reporters:scotus_early", "reporter": "How.", "opinion_index": -1 }, { "cite": "3 How. 750", "category": "reporters:scotus_early", "reporter": "How.", "case_ids": [ 3318357 ], "opinion_index": -1, "case_paths": [ "/us/44/0750-01" ] }, { "cite": "2 How. 59", "category": "reporters:scotus_early", "reporter": "How.", "opinion_index": -1 }, { "cite": "13 Peters 499", "category": "reporters:scotus_early", "reporter": "Pet.", "opinion_index": -1 }, { "cite": "1 Peters 328", "category": "reporters:scotus_early", "reporter": "Pet.", "case_ids": [ 1432361 ], "opinion_index": -1, "case_paths": [ "/us/26/0328-01" ] }, { "cite": "13 Ark. 507", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8728259 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ark/13/0507-01" ] } ], "analysis": { "cardinality": 1539, "char_count": 42491, "ocr_confidence": 0.529, "pagerank": { "raw": 5.156360950596312e-07, "percentile": 0.9394528406868509 }, "sha256": "9675d81d52a974c89dd481969b484b7606933bc89729413a4a91c7fe22a799a1", "simhash": "1:bdd3cf9e920e14cd", "word_count": 7453 }, "last_updated": "2023-07-14T20:38:03.385026+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Sturdy & Wife et al. vs. Jacoway." ], "opinions": [ { "text": "Mr. Justice Scott,\ndelivered the opinion of the Court.\nThe action was ejectment for several tracts of land contiguous. The plea was, not guilty. The verdict and judgment were for the appellee. The appellants are the children .and heirs at law of James Wilson, dec\u2019d, who departed this life in the year 1845, in the State of Missouri, where he resided, and left real and personal estates at his death. 'The lands in controversy seem to have been the only property owned by him in Arkansas. Lemuel B. Harrell administered upon his estate in Missouri. Pirineas IT. White administered upon his estate in Arkansas. The latter procured an order of the Probate Court of Yell county, where the land was situated, for its sale, and it was sold by that authority, and purchased by the appellee, to whom deeds of conveyance were made by White, as administrator, under which the appellee held the possession of the premises. These facts he proved upon the trial, against the objection of the appellants, who, by their counsel, insist, for a multiplicity of supposed reasons spread upon the record by \u2022bill of exception and greatly amplified in argument, that the entire- proceedings in the probate Court, as shown by its record, and all the matters therewith connected, touching the sale and purchase of the lands, set up by the appellee, were utterly void.\nThese proceedings consist of the sworn petition of White as administrator, also sworn to by a disinterested third person, stating, in reference to the administration in Missouri, that that \u25a0was \u201c still progressing and unsettled, and that it (was) the wish of the said administrator in Missouri, and of the heirs and representatives of the said Wilson, that the lands in Yell county, Arkansas, should be sold in preference to the remaining estate of said Wilson-in Missouri, to enable said administrator to nay the outstanding debts against, said estate, and the expenses of administration,\u201d and stating, in reference to the administration in Arkansas, \u201c that there (was) a probability of a demand of some five or six hundred dollars, or more, being allowed against said estate in' favor of John Rogers, to pay which and the ex-. penses of administration in Arkansas, there (were) no assets in hand.\u201d And after particularly describing the lands, states in reference to them, that otherwise than by a sale, they \u201c cannot under present circumstances be made available to said Wilson\u2019s estate, because said lands are wild, unimproved lands, yielding nothing by way of rent, or otherwise, to said estate: but, on the contrary, are a constant source of expenditure to meet taxes, etc., and that said estate would be benefited by their sale, because it stands greatly in need of the money which would proceed from said sale.\u201d \u201c That the prospect for any material increase in the value of the lands was extremely remote \u2014 quite too distant to justify the withholding of them from sale on the grounds of any imaginary future benefit to be derived therefrom to the estate, when the same is at this time so much in need of money, and said lands a source of constant expense;\u201d and expressing an unhesitating opinion that the true interest of the estate required the sale, prayed an order of the Court therefor on such terms as the Court might deem proper.\nThis petition appears to have been filed in the Probate Court at a regular term, and, afterwards, it expressly appears that the Court, in term time, judicially acted upon it; the record of whicn action, after reciting the substance of the petition, as above set out, proceeds further to recite the verification of the petition both by the administrator, and by the affidavit of Jesse Turner, a disinterested person of known good character, then proceeds as follows, to wit: \u201c And it further appearing that the notifications of this application have been given as required by law, and the Court having been fully advised what order to make in the premises, is of opinion that the prayer of said petition dught to be granted. It is therefore ordered that said administrator, Phineas H. White, preceed to sell said real estate at public vendue, etc.,\u201d \u2014 the order proceeding to prescribe explicitly the mode of advertisement, terms of sale, and mode of conducting it, with reference to the statutory regulation for the sale of real estate, and that he report.\nAt the first regular term after the sale, a report thereof appears to have been made and filed, and to have been approved and confirmed by the Court, in which it appears that the ap-pellee was the purchaser of the land at the average price of one dollar and twenty-eight cents per acr.e.\nIt appears, also, that four years afterwards, to wit: in August 1853, at'a-regular term of tbe same Court, the administrator made another report of the same sale, in which with greater particularity, the time, place and mode of conducting said sale, and the previous advertisement thereof were stated, and in which it was also stated that all the tracts of land severally sold, brought two thirds of the appraised value thereof, except one eighty acre tract, -which brought one cent over two thirds of the appraised value thereof.\nThis report appears also' to have been examined and approved, and in all things confirmed'by the Court'.\nThe other'matters proven in connection* with these proceedings of the Probate Court, and touching the sale and purchase of the lands in' controversy, were, 1st. A letter of attorney from White, the Arkansas administrator, to Harrell, the Missouri administrator, authorizing the latter, for and in the name of the former, to superintend and conduct the sale of the lands then before duly advertised, at the time and place appointed, to execute deed to the purchaser, and to \u201c do any other thing necessary to perfect the sale in accordance with the order of Court and the law of the land, as fully in all respects as (he himself) could do if personally present:\u201d 2d. A deed of conveyance, reciting in the name of White, adm\u2019r, the order of Court for the sale of the lands, the publication of the notices for the sale, the appointment of Harrell as attorney in fact to superintend the sale, etc., the terms upon which the lands were offered, and the purchase of them by the appellee \u2014 the highest bidder therefor] which then proceeds as follows, to wit: \u201c Now therefore know ye, that I Lemuel B. Harrell, attorney in fact as aforesaid of Phineas H. White, administrator of the estate of James Wilson, deceased, by virtue of the power and authority in me vested as aforesaid, and in consideration, etc. * * * do hereby grant, bargain, sell and convey unto the'said Benjamin J. Jaco-way. etc. And I, the said Lemuel B. Harrell, do hereby covenant with the said Jaeoway, that I am fully empowered to make the aforementioned conveyance in the name of P. H. White, as administrator of the estate of James Wilson, dec\u2019d, aforesaid, and for him the said White, I do hereby convey all the interests, to the said Jacoway, his heirs and assigns, in fee simple, that the heirs of the said Wilson may have in and to said several tracts of land, etc. Signed, Phineas H. White, [seal,] administrator of James Wilson, dec\u2019d. By L. B. Harrell, attorney in fact.\u201d 3d. Another deed of conveyance for the same lands executed by White himself, as administrator, to Jacoway, about four years afterwards, which contains more minute and ample recitals, and is unquestionable, as to the granting clause, and apparently, in every other respect.\nThe multitudinous questions as to irregularity, to which we have alluded, are presented not only by way of objections to the testimony, but also by way of instructions asked and refused. They are all, however, subordinate to, and are to be disposed of by the determination of a single point of law, or rather, by its application to the leading facts of this case; for perhaps it is too well settled now for any consideration of it as for determination. We mean that establishing the general rule, that the judgment of a Superior Court of competent jurisdiction as to a subject within its jurisdiction, cannot be attacked and impeached collaterally.\nBecause our Probate Courts received their powers by legislative enactment, in response to the constitutional provision in reference to them, it does not follow that their powers are limited and special, in the sense that the powers of inferior courts were so at common law. The latter derogated from the powers of the courts at Westminster, and were, therefore, strictly construed, upon the same principle that a statute derogating from common right, is still construed strictly. But in our system, judicial power is cotemporaneously parceled out by the constitution among the constitutional courts, ordained and provided for, without, in any sense, derogating from the powers granted to the others. Hence, although all courts of original jurisdiction are limited as to subjects of jurisdiction\u2019 .their powers, as to the subjects committed to their jurisdiction, are general powers, as contra-distingnished from the special and limited powers of inferior courts, technically so at the common law, since they in no way derogate from the powers of other courts.\nOur Probate Courts, by the constitution, were to \u201c have such jurisdiction in matters relative to the estates of deceased persons,\u201d as should be prescribed by law. This jurisdiction is peouliar to these courts, as criminal and chancery jurisdiction is peculiar to other courts, but neither derogates from the powers of the others, and each, within its sphere, is to be considered as invested with full independent powers, respectively, as to the subjects committed to its jurisdiction.\nUnder our legislation, constitutional and statutory, not only is the personal estate of a deceased person committed to the jurisdiction of these courts, but the entire estate, both real and personal. There are provisions of law relating to the sale of property and estates, while in the course of administration, discriminating not only between real and personal estate in general, but also between particular species of personal property, as well as chattels real. They are all, however, but regulations prescribed by law for the guidance and government of these courts as to these matters, when in the exercise of the peculiar jurisdiction committed to them.\nIn the exercise of this jurisdiction, as has been often said here, the courts proceed in rmn. The first step of actual \u2022 jurisdiction, in this process, is the grant of letters testamentary, or of administration; although a potential jurisdiction over the entire estate of deceased persons vested in these courts at the moment of the death. When this step is taken, a public notice thereof is required to be given within thirty days thereafter. If the deceased died intestate and left no known heirs, a further and additional public notice is to be given. (Dig., chap. 4, p. 120, secs. 54, 55.\nThus, in the very outset, all persons interested in the things to be administered, have due notice in the mode usual in proceedings in rem. And there is a peculiarity in our administration system which makes this general notice more efficacious than in those States where the peculiarity does not exist, although their courts may also proceed in rem.; and that is that process from no other court can take and dispose of the thing while in process of administration, unless it had fastened upon it in the life time of the deceased. This peculiarity exists in several of the States, after the estate is reported to be insolvent; but here, it is so whether the estate be solvent or insolvent, and hence, parties interested in the estate of the deceased person have more especially to look to the proceedings of this court in referehce to their interest.\nThese courts, then, having the peculiar and exclusive jurisdiction of the estates of- deceased persons \u2014 -otherwise than as the chancery courts may exert, in some respects, a concurrent jurisdiction \u2014 they must, necessarily have jurisdiction of the incidents to the proper exercise of this jurisdiction; and whether upon the one or the other their judgment may be passed, it cannot be a nullity, however erroneous it may be, because within the scope of their legitimate powers. Hence, in Borden et al. vs. The State, 6 Eng. R. 519, it was held that, jurisdiction of the Probate Court appearing as to the subject matter, any irregularity in its proceedings \u2014 as for want of notice \u2014 was not a legitimate enquiry in a collateral proceeding, however legitimate it might be upon a direct proceeding as for error.\nIn the same case, upon the same general principle, it was held that these courts were in all things to be considered upon the footing of superior courts,, as contra-distinguished from inferior courts of special and limited jurisdiction at the common law. And this has been often since repeated and enforced in this Court. (Win. J. Marr. ex parte, 7 Eng. R. 86; Bennett et al. vs. Owen et al., 13 Ark. R. 179; Rogers et al. vs. Wilson et al., 13 Ark. R. 569; Barasien vs. Oden, 17 Ark. R. 124, and other cases.)\nWhen these doctrines are applied to the leading facts of this case, it is easy to see, that the proceedings in the Probate Court, and those connected therewith, proven upon the trial, were not utterly void, although, possibly, in some respects, upon a direct proceeding, they might have been regarded as erroneous.\n\"Without any regard to the statute of 23d December, 1846, and the mode of proceeding thereunder for the sale of real estate by order of the Probate Court; but considered as a proceeding under the law as it existed in the year 1845 (Dig., ch. 4, secs. 145, 146, etc.,) the proceeding was certainly within the scope of the competent powers of the Probate Court, and was in several substantial respects strictly regular, when the legitimate presumptions in favor of the regularity of the proceedings of the Probate Court are indulged.\nIt was a proceeding by petition of the administrator, verified by his affidavit, for the sale of lands of his intestate for the payment of debts of the intestate and the expenses of administering his estate. It contained what may be considered a true and just account of all the debts of the intestate that had come to his knowledge, and so far as it was possible, the amount of assets in his hands to pay such debts, \u2014 which was none at all, with the exception of the land. He described the lands particularly, .and showed that nothing could be derived from them by rents, to meet the unpaid debts, the accruing taxes, and the expenses of administration. He stated that besides the debts to be paid in Missouri there was the probability of an Arkansas debt, of an amount equal to what ultimately proved to be about half the market value of the lands. He stated that there was, originally, property in Missouri, both real and personal, that was still in process of administration there, and that it was the wish of the administrator in that State, as well as of the heirs and representatives of the deceased, that the lands in Arkansas should be sold in .preference to the \u201c remaining estate in Missouri,\u201d to pay the outstanding debts against the estate there, and the expenses of administration. Whether that \u201c remaining estate \u201d in Missouri was real or personal estate, was not stated: And it in no way appears, that there was any personal property whatever remaining any where, much less a sufficiency of such to pay the outstanding debts. The pre requisite notice of the intended application provided for by the statute (sec. 134). appears from the record to have been given, and it also affirmatively appears, that the Court was fully advised, after consideration, as to what order to make in the premises; and, in support of the order, it is to be presumed, the Court heard evidence.\nUnder such circumstances, to hold that the doings of the Court were a nullity, would be, to say the least of it, going a great way. Here was a subject matter legitimately and peculiarly within the jurisdiction of the Probate Court' \u2014 -an application by an administrator for the sale of lands of his intestate for the payment of his debts \u2014 brought regularly before the Court \u2014 by sworn petition, after due notice of the intended application shown to the Court \u2014 and that application considered and decided upon, and that too with a sufficient margin in the record for presumption that facts were established by evidence, not inconsistent with the petition, to fully authorize the judgment given \u2014 without any objection to it in point of correctness, much less of power.\nThe subsequent proceedings are equally unassailable, in the aspect in which we are considering them \u2014 that is, in reference to power and authority, and not as upon error for imperfections there cognizable. It was admitted upon the trial that the lands were duly appraised before they were offered for sale; that they were sold in separate tracts, and that each brought two-thirds of its appraised value. With regard to the sale having been superintended and conducted by an attorney in fact of the administrator, there was no margin for the exercise of any special personal confidence reposed in the judgment and discretion of the administrator, which might forbid it; because here, the time, place and manner of the sale, and terms of payment, and other matters connected therewith, had all been previously fixed by the order of Court, which had but to be executed according to these specific directions \u2014 and besides, when this attorney in fact was himself the administrator, of the domicil, of the deceased in Missouri \u2014 as he seems to have been \u2014 there is less reason to: apprehend fraud, as to any part of the transaction.\nWith regard to any supposed defects in either of the two deeds, if they existed, it is difficult to see how that could give any right of possession of the lands to the heirs, who had been divested of all such by the sale of them by the administrator, under a valid order of Court, and actual possession in pursuance thereof given to the purchaser.\nBut the whole case turns, as-we have already said, upon the point of law, that the order of sale in this instance being the judgment of a Court of competent jurisdiction upon a subject within the scope of its legitimate powers, that judgment in favor of the sale legally imports a necessity for it, so long as it remains unreversed, and, therefore, it cannot be attacked and held for nought collaterally upon any ground that the Court erroneously exercised its powers. Whether the Court properly or improperly exercised its powers over the subject, is not to be enquired of in this wise. (Martin's Lessee vs. Roach, 1 Harrington R. 486; McDade vs. Burch, 7 Geo. R. 559; Howard & wife vs.. Moor & wife. 3 Mich. R. (Gibbs) 226, and various other cases cited in brief of appellee\u2019s counsel.)\nIn that view we think there is no error in the record, and the judgment will therefore be affirmed.", "type": "majority", "author": "Mr. Justice Scott," } ], "attorneys": [ "Tebbetts, and Walker & Green, for the appellants.", "Watkins 2 Wash. C. C. Rep. 475; Ford vs. Walworth, 15 Wend. 449; and various other authorities. (See Cow. & Hill's notes to Phil, on Ev., note 620, p. 862.)\nThe Orphans Courts are limited in their jurisdiction, and have no power not expressly given them by law. !9 Gill. 90.\nThe jurisdiction of a County Court, as a Court of Probate* is confined by the Constitution, and the law, and its authority is restricted to the enumerated subjects. 6 Texas 185.\nSurrogate Courts are courts of special jurisdiction, and can only exercise such powers as are given them by statute. 10 Barber Sup. Ct. 523.\nThe rule in respect to courts of general jurisdiction is, that they are presumed to have jurisdiction until the contrary clearly appears (Cow. & Hill\u2019s notes to Phil, on Ev., note 687). But in respect to courts of limited and special jurisdiction, the rule is different; nothing is presumed in their favor so far as respects jurisdiction; and the party seeking to avail himself of their judgments, must show that they had jurisdiction affirmatively. lb. 906; 19 John. 83; 9 Mood. 95; 2 Wills. 16; Peacock vs. Bell, 1 Saund. 73, 74; Kemp\u2019s Lessee vs. Kenedy, 5' Cranch 173; 1 Peters C. C. Rep. 30; 8 Coioen 311.\nWhere a Superior Court of general jurisdiction has special authority conferred upon it by the statute, it is quoad hoc an inferior or limited court; and it is essential to the validity of its proceedings, that they show a substantial comjoliance with the requisitions of the statute. See Cow. & Hill\u2019s notes to Phil, on Ev., note 691, jo. 496, and the numerous authorities there cited. In Deming vs. Corwin, 11 Wend. 64, there was a judgment in partition; and because it did not appear by the record, that the parties were before the Court, or shown to the Court that the owners were unknown, it was held to be void. The Court in this case was one of general jurisdiction.\nIn Brown vs. Wood, 6 J. J. Marsh. 11,14, 29, 30, 193, 197, the same principles were applied. The Court said .that statut\u00e9s authorizing proceedings against absent defendants and unknown heirs upon constructive notice by publication, is an extraordinary remedy, unknown to the common law, and must be strictly pursued.\nIn Bloom vs. Burdick, 1 Hill (N. Y.) 141, the Court say that \u201c in every forum in which the question has arisen, it has been held, that a statute authority by which a man may be deprived of his estate must be strictly pursued.\u201d The same doctrine will be found in 13 Wend. 465; 20 lb. 241; and in 7 lb., as cited in 1 Hill 141. In the case in 1 Hill, the decision in Denning vs. Gor-win, 11 Wend., is restricted to the facts before the Court. The broad doctrine, that the judgment of a Superior Court, in summary proceedings, where it exercises an extraordinary power under a special statute prescribing its course, is void, if the record do not show jurisdiction. (See Foot vs. Stephens, 17 Wcncl. 483, and Hart vs. Seixas, 21 Wend. 40.)\nC. J. Savage, in Jackson vs. Esty, (7 Wend. 148,) said: \u201c It is a cardinal principle, that a man shall not be divested of his property but by his own acts, or the operation of law; and where proceedings are instituted to change the title to real estate by operation of law, the requirements of the law under which the proceedings are had must be strictly pursued.\u201d And \u201c when lands are to be taken under a statute authority, in derogation of the common law, every requisite of the statute having the semblance of benefit to the owner must be strictly complied with.\u201d Sharp vs. Johnson, 4 Hill (N. Yi) 99; Atkins vs. Kinnan, 20 Wend. 241.\nThe same principles have been fully sustained in the Supreme Court of the United States. See Thatcher vs. Powell, 9 Wheat. 119; Williamson vs. Berry, 8 How. 495; Shriver\u2019s Lessee vs. Lynn et al. 2 How. 57; 11 How. 437; 7 How. 181.\nThe order of the Probate Court is coram non fiidice and void. First, because the court has no jurisdiction of the subject matter. See Sec. 148, ch. 4 Dig.; sec. 148 lb.; sec. 154 lb.\nSo far from showing that the Court had jurisdiction of the subject matter, the proceedings affirmatively show that it did not. They show that the sale was not necessary to pay the debts, that there was no debt allowed against the estate \u2014 and the facts stated in the petition furnished no data by which the Court court have determined how much of the land should be sold.\nA sale by an administrator unless for the payment of debts is absolutely void. 1 Sm. & Marsh. 208.\nA sale of the real estate of a deceased person must be made in strict compliance with the law, or it will be void. 2 Sm. & Marsh. 326.\nIn proving a surrogate\u2019s or other probate sale of real estate, you must show a petition and account. 4 Wend. 436; 12 Wend. 54; 6 Johns. Ch. Rep. 381, 2, 385-6; 1 Conn. Rep. 467. And a recital of the presentation of the account in surrogate\u2019s order of sale is not sufficient. The fact of its having been presented must be affirmatively shown. (Ford vs. Wadsworth, 15 Wend. 449.\nIt is essential to the validity of an order of the Probate Court for the sale of lands by an executor or administrator, that it should show on its face the facts requisite as preliminary to the making of the order, that is \u2014 that the debts and charges allowed exceed the personal estate. Watilers vs. Hyde, 9 Conn. 10; Griffin vs. Pratt, 3 lb. 513; Lockwood vs. Sturdevant, 6 lb. 373; Watson vs. Watson, 10 lb. 77; Burnett vs. Higgins, 4 Dana 567; Griffith vs. Dickens, lb. 655; 7 Mass. 488; 11 lb. 227; 1 How. (Miss.) Rep. 558; 2 Sm. & Marsh. 357; 3 Stew. & Port. 355; 15 Ala. 761; 8 Geo. 236; 10 Humph. 610; 13 III. Rep. 127.\nSecondly, because no notice was given of the intended application.\nThe recital in the order that notifications had been given according to law, is not sufficient. Brodie vs. Skelton, 6 Eng. 150; Green\u2019s heirs vs. Breckenridge\u2019s heirs, 4 Monroe 544; Peers vs. Carter\u2019s heirs, 4 Litt. 228; Dunning vs. Corwin, 21 Wend. 647; 8 Cow. 361, 370; Davis vs. Nest, 6 Carr. & Payne 167; Planters Bank vs. Johnson, 7 S. & M. 449; Clements vs. Henderson, 4 Geo. 148.\nAn order of the Court of Probate for the sale of lands to pay debts without notice, is void. Corwin vs. Merritt, 2 Barb. Sup. Ct. 341; 11 Wend. 652; Seymour vs. Judd, 2 Comstock (N. T.) 464.\nIf an administrator sell the lands of his intestate under an order of the Probate Court, where the record does not show that legal notice had been given, both the order and sale are Void. Gioinn vs. McCarrol, 1 Sm. & Marsh. 351; Campbell vs. Brown, 6 How. (Miss.) 230. \u201c A decree of the Probate Court, without notice, actual or constructive, to the heirs, is void and inoperative; such decree'is not only against the express provisions of the statute, but opposed to the first principles of justice.\u201d Without citation or notice, the Court had no jurisdiction of the person; and without jurisdiction as well of the person as of the subject matter, the judgment of a court is void, and may be collaterally assailed; 6 How. {Miss.) 114, citing 4 Peters U. S. 474; 11 Wend. 652; 5 Stew. {Ala.) 335, andaJ. J. Marsh. 105. In such case, the title continues in the heir. If the statute has not been strictly complied with, the order and sale under it are void. A recital of notices in the order is insufficient. Planters Bank vs. Johnson, 7 S. fy M. 449; Clements vs. Henderson 4 Geo. 148; Estes vs. Johnson, 10 Humph. 223; Whitman vs. Johnson, lb. 610; 14 How. {U.S.) Rep. 339; 11 16.460; 5 Blackj. 223; 9 Mass. 464; 20 Verm. 65; 6 Conn. 508; 15 Ohio 444; 11 N. Hump. 191; 9 Geo. 247, 130; 1 S. & Mar. 140; 12 Mo. 580; 6 Verg. 222; 8 B. Mon. 139; 1 Dev. 187; 14 Leigh 584; 2 Slew. 335; Curtis vs. Gibbs Pa. Rep. 405.\nThe sale was void because made by an agent\nThe statute requires the executor or administrator making the sale to make a report of his proceedings, at the next term after the sale, together with an affidavit that he was not the purchaser of such lands or tenements, or any part thereof, and that they were not purchased for his use, and that he is not in any manner interested in the purchase thereof; {sec. 151 chap. 4 Digest.) If the Legislature had contemplated the execution of the orders by attorney, it is supposed that it would have required the attoney to make the affidavit!\nA bare power or authority to do an act, cannot be delegated, for the reason that such power or authority is a trust or confidence reposed in the person in whom it is vested. Bacon\u2019s Abr. Authority D.; Com. Dig. Attorney, C. 3; 2 Kent\u2019s Com. 633; Story on Agency 14.\nWhen a power of sale is given to executors, they cannot sell by attorney. Williams on Executors 618; Sugden on Powers', 4th ed. 177; Bacon\u2019s Abr. title Authority, D. p. 43; Lyon vs. Jerome, 26 Wend. 485.\nThe deed from Harrell, the attorney in fact of White, the administrator, is inoperative and void.\nFirst, because it is the deed of Harrell, the attorney, and not the deed of the administrator.\nSecondly, because it does not recite the proceedings.\nThirdly, because it shows upon its face that the sale was illegal and void.\nWhen any one has authority as attorney, to do any act, he ought to do it in his name who gives the authority, for he appoints the attorney to be in his place, and to represent his person; and therefore, the attorney cannot do it in his own name, nor as his proper act; but in the name, and as the act of him who gives the authority.\u201d This rule, thus laid down, is regularly true in regard to all instruments under seal. Therefore, if a person is authorized by a power of attorney to make a conveyance, under seal, of the lands of the principal, and he makes the conveyance by deed in his own name, it will be a void conveyance. And it will make no difference in the case, that in the deed, the agent describes himself as such, as if he says, \u201cknow ail men by those presents, that I, A. B., as agent of G. D., do hereby grant, sell, convey, etc.; or signs and seals it, \u2018A. B.for C. D.,\u2019 for in such case, it is still his own deed, and not the deed of the principal.\u201d (Story on Agency,secs. 147, 148.) That is precisely the case with the deed here. See, also, 2 Lord Ruym. 1418; 2 East. 142; Bacall\u2019s Abr. title Leases, 1 Sec;, 10 Com. Dig. title Atto. C. 14; 10 Wend. 87; 6 John. 94; 9 lb. 334; 2 Kent\u2019s Com. 631; & Peters 349, 351; 4 Mass. 505.\nWatkins