#### S. W. and E. D. SPRINGER v. W. M. SHAVENDER.

Void Judgment — Want of Jurisdiotion-.— Collateral Attack — Sale of Lanol of Living Persons by Admwiistrator Erroneously Appointed — Estoppel.

1. While mere irregularities in the conduct of a proceeding will not subject the decree therein to a collateral, or even, under some circumstances, to a direct attack, the rule is different when the allegations in the pleadings necessary to jurisdiction of the Court are untrue, and where, if the truth had appeared on the record, it would have been the duty of the Court on motion, or ex mero motu, to have dismissed the proceeding for want of jurisdiction; therefore,

2. Where the children of a person, under a misapprehension of the facts, admitted the allegation in a proceeding for the sale of their ancestor’s land, that he was dead, and submitted to a decree for the sale of the land, they will be allowed in a collateral action to impeach such decree and to avoid the estoppel of title derived through it, by showing that their ancestor was in fact alive at the date of the decree and sale.

3. The appointment of an administrator’upon the estate of a living man is void for all purposes, and everything that is founded upon it is a nullity, because there was no jurisdiction to appoint. (Quaere, whether an administration granted, not upon false information as to a person’s death, but upon a presumption of law arising from his absence without being heard from for seven years, does not make the acts of the administration valid.)

*134. It is within the discretion of the trial Judge to submit specific issues, arising out of a general issue, involved in the pleadings, instead of those that are more general.

Civil actioN, for trespass in cutting trees and removing timber from land, tried at Spring Term, 1894, of Beaufort Superior Court, before Armfield, J. The issues submitted and the responses to them were as follows :

1. Was George W. Dixon dead at the time of the institution of the proceedings by his alleged administrator to sell his lands and at the time of the sale thereunder?' Answer: Living.

2. Are the plaintiffs the owners of the timber standing upon the lands described in the complaint? Answer : No.

3. Did the defendents unlawfully take possession of the said timber and convert it to their own use? Answer : No.

4. What is the value of the said timber ? Answer : —

5. Did the defendants unlawfully take possession of the logs cut from the lands by plaintiffs ? Answer : No.

6. If so what damage has the plaintiffs sustained thereby ?' Answer: None.

7. Is the defendant Wm. M. Shavender the owner of the lands described in the complaint? Answer: Yes, the Mallison land, not Sears’ land.

8. Did the plaintiff trespass upon said land. Answer: No.

9. If so what damage has the defendant sustained ?' Answer: —

The plaintiffs offered to connect themselves with G. W.. Dixon and to connect the defendant with the same source of title the following deeds were offered in evidence:

1. A deed from R. C. Windley to plaintiffs, dated March 24, 1886, and properly recorded.

2. A deed from W. G. Jarvis, administrator of George W.. Dixon, to R. C. Windley, dated May 17, 1882.

*143. A record of.special proceedings, No. 190, entitled “W. G. Jarvis, administrator of George W. Dixon, against George Ann Dixon and others.”

. 4. A deed from Alfred Pilly to Geoi-ge W. Dixon, dated August 10, 1869. This deed conveyed a tract of land claimed by the plaintiffs to be the Sears land.

5. A deed from M. Shaw, Clerk and Master, to Alfred Pilly, dated November 19, 1867. This deed is claimed to convey the Sears land.

6. Necord in a foreclosure suit óf John L. Pilly against Duncan McLaughlin.

7. A mortgage by Duncan McLaughlin to John L. Pilly, dated March 24, 1861. This mortgage is also claimed to cover the Seal’s land.

8. A deed from Samuel L. Snell to George W. Dixon, dated February 27,1869. This deed conveys a tract known as the “ Franklin Mallison land. ”

9. A deed from Elizabeth Dixon, wife of George W. Dixon, and others, children of George W. Dixon, to ¥m. M. Shavender, dated November 14, 1887. This deed conveyed to the defendant Wm. M. Shavender two tracts of land, known as the “ Franklin Mallison land and the William Sears land.” This deed was offered to show under whom defendant Shavender claimed and to estop him.

As the case was made to depend upon the finding that G. W. Dixon was living at the time of the sale, at' which Windley bought, it is not necessary to give'more of the record. The other essential facts are stated in the opinion. The plaintiffs appealed.

■ Mr. W. JB. Rodman and Mr. J. JBJ. Small, for plaintiffs (appellants).

Mr. Ohas. F. Warren, and JMr. J. W.Hinsdale, for defendants.

*15Avery, J.:

The question that confronts us at the threshold of this investigation is one that, as we think, has been heretofore in effect passed upon by this and other appellate courts, but one which requires careful consideration and discussion. Where the children of a person under a misapprehension of the facts admitted the allegation of a petition that tlieir ancestor was dead, and submitted to a decree for the sale of his land by his administrator for assets, will they be allowed collaterally to impeach such judgment and avoid the estoppel of title derived through it, by showing that the ancestor was at the date of the decree actually living ? It is quite as important that courts of inferior jurisdiction should command the confidence of the public in the regularity and binding force of their decrees, upon which titles depend for their validity, as that appellate courts should be trusted to adhere to decisions upon the stability of which rights of property depend. But while mere irregularities in the conduct of a proceeding will not subject the decree rendered therein to a collateral, or even under some circumstances to a direct attack, the rule is different when the allegations in the pleadings that are essential to the jurisdiction of the court are untrue, and where, if the truth had appeared upon the record, it would have become the duty of the court on .motion or ex mero motto, to declare the suit coram non jtidice. If, in the special proceeding under' discussion, it had appeared that G. W. Dixon was alive or had not been admitted that lie’ was dead, the very basis of the jurisdiction would have been wanting and there would have been no serious controversy as to the duty of* the Court to pronounce the judgment a nullity, even when assailed collaterally only. Black on Judgments, Sec. 215, 212, 278. The same effect must be given to proof aliunde, after the decree is entered, that the person supposed to be dead was in fact alive. *16 London v. Railroad, 88 N C., 584: State v. White, 7 Ired., 117; Book of Monographs (void judicial sales), 20; Withers v. Patterson, 27 Texas, 497; Becket v. Seloven, 7 Cal., 237; Duncan v. Harper, 25 Ala., 408; Griffith v. Frasier, 8 Cranch, 10 and 22; Fisk v. Norvell, 9 Texas, 13; I Herman on Executions, p. 378; Jochumsen v. Bank, 3 Allen (Mass.), 87; Johnson v. Beazley, 27 Am. Rep., 285; Thomas v. People, 107 Ill., 517; Melin v. Simmons, 30 Am. Rep., 746; Morgan v. Dodge, 44 N. H., 259; Black, supra, § 218, 219, 220.

In the case of Hyman v. Gaskins, 5 Ired., 272 to 275, Nash, J., discusses at length the distinction between such probate judgments as are declared merely voidable, because the Court or ordinary had the right to act but did not comply with the requirements of the law, and such as are void, because the Court had no authority to act. While the learned Judge did not have occasion then to pass directly upon the effect as an estoppel of administering upon the estate of a person before his death, he cited the case of Griffith v. Frazier, supra, as one in which Chief Justice Marshall had “ had occasion to examine the doctrine of void and voidable letters of administration in his usual clear and fprcible manner.” In the case referred to, the learned Chief Justice had said : “ But suppose administration to have been granted on the estate of a person not really dead. The act, all will admit, is totally void. Yet the ordinary must always inquire and decide whether the person whose estate is to be committed to the care of others, be dead or in life. It is a branch of every case, in which letters of administration issue. Yet the decision of the ordinary that the person for whose estate he acts is dead, if the .fact be otherwise, does not iowest the person he may appoint with the character or powers of an administrator. The case in truth was not one within his jurisdiction. *17It was not one in which he had a right to deliberate. It was not committed to him by law. And although one of the points occurs in all eases proper for his tribunal, yet 'that point cannot bring the subject within his jurisdiction.”

But this Court in a later case (State v. White, supra,) held that an action could not be maintained upon an administrator’s bond, where it was shown that the supposed decedent was in fact alive when administration was granted upon his estate. The decision rested upon the ground that the probate court had no authority, as the agent of the State, to take charge of the property of a person then living, or to take the bond sued upon. This case was cited arguendo and approved by SMith, C. J., in London v. Railroad, supra.

The Court, it is true, has held that where there is a decedent, the acts of an administrator who was not entitled to the appointment under the statute are valid, but that the order appointing such person is voidable in a direct proceeding instituted by those having a superior right. Garrison v. Cox, 95 N. C., 353; Atkins v. McCormick, 4 Jones, 274. This ruling rests upon the doctrine that in such cases the essential basis of jurisdiction exists, there being a decedent and an estate to be administered. The appointment of the wrong person is but an irregularity, subjecting the order of appointment to direct attack but not invalidating acts done in pursuance of the law, in the course of administration by him who has been inducted into the place by mistake. McPherson v. Canlif, 7 S. & R., (Penn.) 422; Devlen v. Comm., 101 Pa. St., 273 (47 Am. Rep. 710); Johnson v. Beazley, 65 Mo., 250. In the case last cited the Supreme Court of Missouri quote the language of Judge Redfield, that the holding of the Court of Appeals of New York, in the case of Rodrigas v. Ins. Co., 63 N. Y., 460, that the appointment of an Administrator *18upon the estate of a living man could not be attacked collaterally, was “ without precedent either in English or American jurisprudence. ” But-it seems that in a later case, Rodrigas v. Savings Bank, 76 N. Y., 318, Chief Justice Church, admitting that the authorities at common law were uniformly in conflict with it, rested his apparently reluctant approval of the former case upon the ground that it was founded upon a construction of a statute. The appointment of an administrator upon the estate of a living man is void for all purposes, and everything that is founded upon it is a nullity, because there was no jurisdiction. “It must always be remembered, says Black, (2 Judgments, Sec. 633) that in order to the conclusiveness of a probate decree, or in the case of sentence emanating from any other tribunal, it is absolutely necessary that the Court should have possessed jurisdiction.” 1 Herman on Estop-pel, Sec. 411. The finding by the clerk in a proceeding, that was ooram non judioe because it was founded upon the false basis of jurisdiction, that G. W. Dixon was dead, does, not preclude the heirs at law from showing that he was alive. To make it conclusive, the judgment must be rendered by a court of competent jurisdiction (Roulhac v. Brown, 87 N. C., 1 ;) and to give the Court authority, its jurisdiction must extend both to the parties and the subject matter. Condry v. Cheshire, 88 N. C., 375; Morris v. Gentry, 89 N. C., 248; 1 Black on Judgments, Sec. 218. We know of no principle upon which the judgment, void as to G. W. Dixon if he were a party to this action, for want of jurisdiction of the subject matter, could be held valid without jurisdiction either against the parties to the proceeding or those in privity with them. The Court did uot have jurisdiction of the estate of Dixon, if he was at the time living, and it was not error to' submit this question to the jury. Should a case be presented where *19administration had been granted not upon false information of a person’s death but upon a presumption of law arising from his absence without being heard from for seven years, a different question might be presented. Whether the acts of an administrator who proceeded honestly upon a pre-. sumption, to which the law gave the force of a fact, will not be held, because of such presumption, to be valid, as in some courts has been the decision, where an executor performed a part of his imposed trust under a will after-wards ascertained to be a forgery, we need not now determine. To exclude a conclusion, it maybe best however to announce that should such a case arise, the question whether it is to be governed by or distinguished from the ruling in that before us, is an open' one. Such a case would raise the point whether the presumption of law that one is dead does not confer jurisdiction over a living-person’s estate, when it could not possibly be acquired in the absence of such presumption.

It was admitted that Mrs. Matilda E. Dixon, wife of G-. W. Dixon, was not a party to the proceeding, and it would of course follow that she was not bound by the decree upon other grounds than those relied upon by the heirs at law. Condry v. Cheshire, supra.

The court submitted an issue involving the question whether G-. M. Dixon was living when the proceeding -was instituted and when the decree therein was rendered, and it was answered by the jury in the affirmative. This was one of the questions that grew out of the general issue of title raised in the pleadings and it has been repeatedly d,ecided by this Court, beginning with Emry v. Railroad, 102 N. C., 209, that it is within the discretion of the presiding judge to determine whether he will submit such specific issues or only those that are more general.

•There was no exception to the competency of the testi*20mony bearing on that issue, except the general one, made to the competency of Surats’ deposition that the defendants were estopped by the decree in the special proceeding from denying the title under it, with the consequences, if the position had been well taken, that it would be immaterial whether he was in fact living, as Susan testified he was after the date of the sale under the decree, or dead. But now that we have held that neither the heirs at law nor the defendant, if in privity with them, are concluded, it seems to us that the finding upon the first issue defeats the plaintiff’s right to recover in any aspect of the evidence. There was no evidence offered on either side tending to show a forcible trespass on the part of the defendants, and it was not error therefore to instruct the jury, as the court did without objection, that the ownership of the timber was dependent upon the title to the land entered upon. Cohoon v. Simmons, 1 Ired., 189; McComac v. Monroe, 1 Jones, 13; Harris v. Sneeden, 104 N. C., 369.

The plaintiffs proposed to show title, as the burden rested upon them to do, not by a regular chain froili the State, but by making G. W. Dixón the source of title and connecting themselves through the sale and administrator’s deed under the decree to R. C. "Windley, and by a string of mesne conveyances with Dixon. They offered other deeds and evidence to connect the defendant with G. W. Dixon as a common source of title, with the view of insisting that plaintiffs’ was the older and better title, and tJtiat under the established rule of evidence the defendants were precluded from denying that fact. If the plaintiffs had succeeded in proving that both derived title from the same source by means of the evidence offered, and that of the two chains so exhibited, their own was the better, it would have been as effectual proof of their right against the world, as a chain *21extending back to the State, unless the defendants had connected themselves with some other older and better title.

But since it appears that the proceeding, decree, sale and deed, by which they propose to show title out of G-. W. Dixon, are nullities the plaintiffs have failed to connect themselves with the alleged source of title and therefore have failed to establish their right to recover. The Judge might have instructed the jury that if they should find in response to the first issue that Dixon was living at the time of sale under the decree, they would find in response to the second issue that plaintiff's were not the owners (as in that event they would fail to show themselves to be) of any of the land for which they brought suit. In that view of the case, it is not material whether the description in either the plaintiff’s or defendant’s deeds was sufficient or insufficient, or whether the testimony complained of was competent or incompetent or the charge was erroneous as to matters not involved in or essential to the determination of the controversy. The response to the first issue was necessarily decisive therefore of the first six issues. The remaining three grew out of the counterclaim, which the court held that the defendants could not maintain and the defendants did not appeal.

The plaintiffs have no reason therefore to complain of the charge which was more favorable than they had a right to expect, under the view we have taken of the law. Judgment affirmed.