K ^UlBRARYfl/. s ^ ^OFCAIIFO/?^ ^AHvaanv^ \VIE-UNIVER% - "^UONVSOV^ ^IDS-ANCflfj^ I ^U3AINn-3\\v ^lOSANCElfj^ ■fr/SWAINA-JV^ ^UlBRARYQr ^OJITVOJO^ ^OFCAIIFO^ ^AHvaaiH^ si y O\M )5 O u. ^ ^/maiimc^ ^E-UBRARYQ^ ^UIBRARYfl^ \w\m^ \w\m$P &A»v8an-# .^EUNIVERS/a o > ^clOS-ANCELfj> ^1-UBRARYtfc ^- HBf .^0FCALIF(%, ^OF-CA "fySMAINIHttv y 0AHVMIl# y O\W fy mmits* ^miNm-vR** ^lllBRARY^ i2 1 ir* £, ^HIBRARY-0/ 5 < AVtt-UNIVEW/A ^U)W "%3A <0F CAUFOfi^ y 0AHVHaftt^ ^OFCAUFOfy* 'oahvmih^ aWE-UNIVERJ/a o ^UDNV-SOl^ ^lOSATO/^ ^UIBRARYQ*. § 1 ir- ^jonvsoi^ ^/mainihw^ ^ojitcho^ %)jnv>jo^ ^•UBRARYfl/ ^EUNIVEW^ ^lOSANGEl^ »^ P l- 5? ^■AMVHan-# „*0F-CAUF<% tie >- ^UIBRARYOr ■sjM-UBRARY-Qr .\rtHNIVER% ^lOSANGEtfx. \onmi^ 3, OL^LS I. / a \ VOID Judicial and Execution Sales AND THE RIGHTS, REMEDIES AND LIABILITIES OF PURCHASERS THEREAT, BRIEF DISCUSSION OF CURATIVE STATUTES SPECIAL STATUTES AUTHORIZING INVOLUNTARY SALES. By JOHN C. KLEBER, Op the Washington Bar. NEW YORK THE BANKS LAW PUBLISHING CO. ■2.1 Murkay Street 1899 I9?9 COPTRIGHT BY THE BANKS LAW PUBLISHING CO., 1899. J. P.. LYON COMPANY PRINTERS AND BINDERS ALBANY, N. Y. ft To My Friend the Hon. M. J. GORDON, Chief Justice of the Supreme Court of Washington, as an Expression of respect for his uniform courtesy and distinguished bear- ing as a lawyer, his attainments and eminent qualifications as a jurist, and his unswerving fidelity as a friend, these pages are respectfully inscribed, By the Author. 7407^7 PREFACE. In the preparation of this work the general characteristics and distinctions between execution sales which are minis- terial, and sales in probate by administrators, executors and guardians and other chancery sales which are properly desig- nated as judicial sales, are never lost sight of throughout the work. The author has at all times endeavored to avoid the promiscuous use of the terms " void " and " voidable ", and has sought to employ these terms according to their strict legal meaning, indicating by the former that which is utterly without legal validity and an uncompromising nullity, and by the latter such acts and proceedings which are affected by in- firmities by reason of irregularities or omissions and hence irregular but not absolutely void. To augment the practical utility of the work, at the expense of considerable additional labor, parallel references have been made to the American Decisions and American Keports, and to the National Tieporter System. While craving forgiveness for the omission of much ma- terial, which being perfectly relevant to the subject in hand and which might have been appropriately incorporated, the author begs the pardon of the indulgent profession for that opposite literary vice, repetition, though but an inconsider- 4 Preface. • able portion of the volume is consumed by the reiteration of controlling principles. Being, conscious of its imperfections and omissions, and realizing that every conceivable proposi- tion that may arise within the scope of the work has not been treated therein, yet he believes that what is therein contained will neither mislead nor confuse; and if it shall be of assist- ance to the lawyer to some extent in his arduous duties, the time consumed and energies expended will be sufficiently compensated. JOHN C. KLEBER. May, 1899. TABLE OF CONTENTS. CHAPTER I. The Nature of Judicial and Execution Sales — General Principles and Definitions. Section 1. Technical Judicial Sale Defined — Is a Sale Made Pendente lite. 2. Court is the Vendor in a Judicial Sale. 3. The Master or Commissioner the Agent of the Court. 4. Sale is Incomplete until After Confirmation. 5. What Sales are Judicial — Sales Made by Assignees in Bankruptcy. 6. ■ Administrator's Sales of Decedent's Lands. 7. When Administrator's Sales not Judicial. 8. — -Partition and Mortgage Foreclosure Sales. 9. In Admiralty Proceedings. 10. In Enforcement of Municipal Liens. 11. Vendor's Liens for Unpaid Purchase Money. 12. By Guardians, on Mechanics' Liens and by Orphans' Court. 13. Execution Sales not Judicial — Are Generally Ministerial. 14. Nature of Execution Sales. 15. Distinction Between Judicial and Execution Sales— Radi- cal Difference. 16. Distinguishing Characteristics of an Execution Sale. 17. -When Execution Sale Complete. IS. Further Elements of Difference. 19. Quasi Judicial Sales — Execution Sales Required to be Con- firmed. 20. Effect of Confirming Order. 21. Nature of Certain Other Sales — Sales in Attachment Pro- ceedings. 22. Only the Property Attached is Affected in Such Case. 23. Classes of Judicial Sales — Three General Classes. 24. -Sales in Foreclosure of Mechanics' Liens in Georgia not Judicial. 25. Void and Voidable Sales — Distinction Between Void and Voidable Sales. 26. Void and Voidable Defined. 27. Who Bound by a Voidable Act. 6 TABLE OF CONTEXTS. Section 28. Void and Voidable Sometimes Indisci iminately Em- ployed. 29. Meaning Attributed to Void and Voidable. 30. Degrees of Voidness — ■ Absolute Nullities. 31. Qualified Void Acts. 32. Statute of Frauds — Dees not Apply to Judicial Sales. 33. Administrators Sales in Illinois Within the Statute. 34. Execution Sales Within the Statute. 35. The Author's Views. 36. Due Process of Law — Comprehensive Definition Impcssi le. 37. Interpretation of the Term. 38. Notice an Essential Requirement. 39. An Opportunity to be Heard Essential. 40. Power to Prescribe Notice. 41. Constructive Service upon Residents and Non-residents. CHAPTER II. Jurisdiction and General Principles Involved in Jurisdictional In- quiries — Judgments and Decrees Affecting Title to Land. Section 42. Meaning of Jurisdiction — Is the Power to Hear and De- termine. 43. Upon What Dependent. 44. When Proceedings coram non judice. 45. When Proceedings are coram judice. 46. Three Essentials in the Right to Adjudicate. 47. Source of Jurisdiction — Common Law and Equitable Jurisdiction. 48. Jurisdiction Granted by Constitutional and Statutory Provisions. 49. Over the Person of the Defendant. 50. Over Person of Defendant not in the State. 51. Measure of Jurisdiction. 52. Jurisdiction over res. 53. No Jurisdiction in Appellate Court if None in Lower Court. 54. Jurisdiction over Subject-matter — How Conferred. 55. Under Unconstitutional Act. 56. Appearance not a Waiver of a Lack of Jurisdiction. 57. Conferred Subsequent to Institution of Suit. 58. Limitation of This Jurisdiction. 59. Acquisition of Jurisdiction to Render Pei-snnal Judgment — Jurisdiction of tho Person of Defendant Essential. 60. Constructive Service only Insufficient. 61. How a Minor P.mucrht in. 62 - Complainant in Court by Virtue of his Petition. TABLE OF CONTEXTS. < Section 63. Irregular Process Sowed. 64. Process Served Wanting in Substance. 65. Defective Service and Failure of Service. 66. Actual Notice — In general. 67. Record Disclosing Service in a Particular Manner. 68. Leaving Summons at Last Place of Residence Actual Service. 69. Pleadings Showing Absence or Non-residence of De- fendant. 70. Notice to Minors. 71. Suits Against Husband and Wife. 72. In Proceedings of Sale by Administrators. 73. Service of Process and the Return — Effect When Served by Unauthorized Person. 74. _ Service Required to be Made by Particular Officer. 75. Service by Party not Valid. 76. Service by Private Person. 77. Written Admission of Service of Process. 78. Personal Service Outside of the State. 79. . • Officer's Return of Service Conclusive. 80. ■ -When Return not Conclusive. 81. Defendant Brought into State by Fraud or Force. 82. General Appearance by Defendant and Its Effect — Ap- pearance Defined. 83. Answer Stricken Out as Insufficient. 84. General Appearance Waives Defect in Process 85. Waives Jurisdictional Defect in Issuing Process. 86. Appearance by Infants. 87. Effect of Special Appearance — In Cases Where Statute does not Prohibit it. 88. Statutory Rule in Some States. 89. Application to Remove from State to Federal Court. 90. Unauthorized Appearance by Attorney — Exposes Judg- ment to Collateral Attack. 91. Rule of Collateral Impeachment Denied. 92. Jurisdiction to Render Judgment in rem — Seizure and Notice. 93. Sales by Guardians of Ward's Lands. 94. Sales of Perishable Property pendente lite. 95. Only the Property Actually Before the Court Af- fected. 96. Judgment Must be Rendered on Cause of Action Stated. 97. .Foreclosure of Mortgage and Other Liens. 9 8 . Decree Assigning Pesidue of Estate of a Decedent. 99. Attachment of Land in Justice's Court. 8 TABLE OF CONTEXTS. Section 100. Jurisdiction as Dependent on Amount in Controversy — Amount in Excess Renders Judgment Void. 101. No Jurisdiction on Appeal When None Below. 102. Amount Below Legal Minimum. 103. Constructive Service of Process or Notice — Constructive Service of Notice Defined. 104. Not Available in Purely Personal Actions. 105. On Resident Defendant. 106. — — Is in Derogation of Common Law. 107. Essential Jurisdictional Facts Must Appear. 108. In What Cases Permissible. 109. Amendment of Complaint. 110. What Affidavit for Publication Must Show. 111. - — — Strict Rule Prevails in Some States. 112. Liberal Rule Elsewhere. 113. Probative Facts Must Appear. 114. Facts Inferentially Stated, Only. 115. Affidavit Must Show Action to be One Mentioned in Statute. 116. Affidavit on Information and Belief. 117. Object and General Nature of the Action. 118. Affidavit Must be Filed Before Publication. 119. Eelation of Affidavit to Order of Publication. 120. False Statement as to Cause of Action. 121. Affidavit and Complaint. 122. Verified Complaint Must be Filed. 123. Facts Authorizing Constructive Service Shown by Return. 124. Suits Against Defunct Corporations in Michigan. 125. Order of Publication Must Contain Essential Par- ticulars. 126. Issued by Clerk Without Order from Court. 127. Misnomer of Plaintiff or Defendant. 128. Order Providing for Unauthorized Service. 129. Order Abridging the Time for Appearance. 130. Publication for Too Short Period. 131. Mere Irregularities in Notice not Fatal. 132. Death of Defendant Pending Publication. 133. One Publication on Non-judicial Day. 134. Unknown Defendants Served Constructively. 135. Personal Service Outside of the State. 136. Affidavit Made by Unauthorized Person. 137. Publication Against Unknown on Petition Against Known Owner. 138. Disqualification of Judge — Renders Proceedings Invalid. 139. Statute Contravened Makes Proceedings Void, TABLE or CONTENTS. 9 Section 140. Loss, Excess and Suspension of Jurisdiction — Jurisdiction Generally Continues Until Judgment. 141. Lost by Appeal or Removal. 142. Lost During Intervals Between Regular Terms. 143. Non-attendants of Judge. 144. Court Sitting Outside of County. 145. Jurisdiction Exhausted Over Subject-matter. 140. -Judgment Beyond the Issue. 147. -Justice of the Peace Absent on Day of Trial. 148 . Other Fatalities in Justice's Procevdings. 149. Effect of Want of Jurisdiction — Makes the Judgment and Proceedings Void. 150. ■ -Administration on Estate of Living Person. 151. Judicial Authority can not be Delegated. 152. Face of Record Showing a Want of Jurisdiction. 153. Only Part of Defendants Summoned. 154. Because Debt Barred by Statute of Limitations. 155. Nature of Sales in Probate of Lands of a Decedent — Fundamental Fact is Death of Owner. 156. .Proceedings in rem. 157. Guardians' Sales Considered Both Adversary and in rem. 15S. Are Adversary Proceedings. 159. Probate Sales When There are no Debts — Adjudication of the Court is Conclusive. 160 . -Finding of Probate Court only prima facie. 161. Effect of Failure to Appoint Guardian ad litem — Gener- ally Considered but an Irregularity. 162. Is a Fatal Infirmity. 163. Sale of Lands Located in Another County — Statutory Requirement as to Institution of Suit. 164. Objection to Suit Brought in Wrong County may be Waived. 165. -Probate Sale of Lands in Another County. 166. Death or Disability of the Parties or Either of Them — Death of Sole Plaintiff or Sole Defendant. 167. Not Suggested by Record Makes Judgment Voidable Merely. 168. One of Several Defendants Dies Before Judgment. 169. Death of Sole Defendant Renders Judgment Void. 170. -Death of Defendant Pending Publication of Notice. 171. Effect of the Death of Sole Plaintiff. 172. Jurisdiction of Minors and Incomp tents. 173. Decree Vacated After Sale and its Effect. 174. Actions Against Married Women. 10 TABLE OF COXTEXTS. Section 175. Instances of Want of Jurisdiction — Title to Land in Another State. 176. Partition and Mortgage Foreclosure of Land in An- other State. 177. Decree Holding Conveyance in Another State Fraud- ulent. 178. Sale by Administrator of Living Owner's Lands. 179. 'Other Instances. 180. Principles Involved in Jurisdictional Inquiries — Pre- sumptions in Favor of Jurisdiction. 181. Pvecital of Jurisdictional Facts Insufficient. 182. No Pit sumptions Obtain in Direct Attack. 183. Presumptions Where Jurisdiction is Acquired by Constructive Xotice. 184. Extent of the Rule of Presumptions. 185. Presumptions not Applicable to Inferior Courts. 186. Courts of Probate Jurisdiction. 187. Conclusiveness of Judgments and Decrees — Parties and Privies. 188. Void as to One Only of Several Parties. 189. In what Capacity Judgment Conclusive. 190. Suit Commenced After Defendant's Death. 191. Proceedings Against Unknown Heirs. 192. Upon what Matters Conclusive. 193. ■ Who are Privies. 194. Effect where Judgment or Decree is Void. 195. Judgments Outside the Issues not Binding. 196. Actions in personam and Proceedings in rem Dis- tinguished. 197. Questions of Title Conclusively Determined. 198. ■ Misconception in Form of Proceeding. 199. Conclusiveness of Judgments as to Creditors. 200. What Creditors may Avoid a Judgment. 201. Conclusiveness of Erroneous Judgment where Sale Made Before Reversal or Vacation — Sale to Stranger Without Notice. 202. Judgment Creditor as Purchaser. 203. Sales Subsequent to Expiration of Judgment Lien — Is as if no Lien of Judgment had Ever Existed. 204. Execution Issued Before its Expiration Preserves Lien. 205. Effect and Nature of Judgment Lien — Creature of Stat- ute and a General Lien. 206. Upon what Property Lien Attaches. 207. When the Lien Attaches. 208. ■ Lien Attaches to Lands Conveyed in Fraud of Cred- itors. TABLE OF CONTEXTS. 11 CHAPTER III. Order or License of Sale by Administrator , Executor or Guardian, and How Procured. Section 209. Lands of Decedents in General — Are Assets to Liquidate Debts. 210. Petition for Probate Sale Must be Presented by Com- petent Petitioner — Incompetency a Jurisdictional In- firmity. 211. Sale by Fiduciary Presupposes their Legal Existence as Such. 212. Part Only of Administrators or Exccutois Licensed to Sell. 213. False Representations as to Guardianship or Release. 214. Lands in Another State. 215. Petition for Orders or Licenses for the Sale of Lands of Decedents, Infants and Incompetents — Are the Initial Step or Foundation of Order or License. 216. Substantial Compliance with Requirements of Statute Essential. 217. Sale can Only be had Upon Allegations of Statutory Causes. 218. Essential Facts Defectively Stated. 219. — ■ — -Administration Proceedings Indivisible though Sa'e Independent. 220. — Petition Must Show the Existence of Debts. 221. Averment of No Personal Property Essential. 222. To Pay Expenses of Administration. 223. Account of Personal Estate by Fiduciary. 224. Claim Barred by Statute of Limitations. 225. Verification of the Petition. 226. Interested Parties Named in the Petition, 227. Property to be Sold Should be Described. 228. Statutes Providing Sale Can Not be Avoided. Certain Things Appearing. 229. Policy of the Law Regarding Probate Sales. 230. Jurisdiction Dependent on Sufficient Averment of Facts — Averment of Sufficient Facts and Not Their Truth Es- sential. 231. Falsity of Facts Can Not be Shown Collaterally. 232. Notice of the Pendency of the Petition for an Order or License of Sale not Considered an Indispensable R& uir< - ment — Two Distinct Views as to Probate Sales. 233. Notice not Jurisdictional where Proceedings are in rem. 234. Notice not Essential where Guardian's Sales are in rem. 12 TABLE OF CONTEXTS. Section 235. Notice of Pendency of the Application for an Order or License of Sale Considered a Jurisdictional Requirement — If Sale by Administrator is Considered Adversary Notice is Essential. 236. Notice in Sales by Guardians. 237. Statutes Must be Strictly Pursued. 238. Acceptance and Waiver of Service of Notice. 239. To be Operative the Notice Must be Given in the Manner as Directed by Statute — Geneva! Rule as to Defective Service and Non-service. 240. Day Unauthorized or Not Sufficiently Remote. 241. If Description is Given it Must be Correct. 242. Notice Given in Unauthorized Manner. 243. Notice for the Prescribed Length of Time Must be Given — Provision of Statute as to Length of Notice is Im- perative. 244. The Order or License of Sale and Its Conclusiveness as an Adjudication — Order Must not Go Beyond the Petition. 245. -Only the Land Embraced in the Order Can be Sold. 246. -Order to Sell on Petition to Mortgage. 247. -Order of Sale to Pay Debts Barred by Statute of Limitations. 248. Description of Property in the Order. 249. Statute Authorizing a Sale Does Not Include Ex- change or Mortgage. 250. Sale of a Part Only or of Interest Subject to Incum- brance. 251. Order of Sale is Conclusive if Court had Jurisdiction. 252. Healing Statutes and Their Effect — General Provisions of These Statutes. 253. Failure to Give the Sale Bond Required. 254. Failure to Take the Oath Prescribed. 255. Failure to Give the Notice. 256. The Sale Must be Confirmed. 257. Land Must be Purchased in Good Faith. CHAPTER IV. Sales Void by Reason of Errors or Omissions Subsequent to Judgment, Decree or Order of Sale. Section 258. General Rule as to the Effect of Irregularities — The En- forcement of a Judgment Not a Judicial Act. 259. Irregularities Will Generally Not Make the Sale Void. 260. Directions in the Decree Must be Pursued. 261. In Case of Special Healing Statute. TABLE OF CONTENTS. 13 Section 262. A Valid Execution an Indispensable Requisite — Execu- tion Must Issue Upon a Valid Judgment. 263. Must Not Issue I pon a Satisfied Judgment. 264. Must be Awarded by tbe Judgment or by Law. 265. Must be Sufficient and Emanate from the Proper Court. 266. Law Must Authorize Writ to Issue Against De- fendant. > 267. Must Describe Parties and Show for Whose Benefit Issued. 268. The Writ of Execution Must be Sufficient in Form — Must Conform to Judgment in Amount and Substance. 269. When Writ Fails to Follow Judgment as to Parties. 270. Execution Not Under Seal. 271. Should Run in the Name of the State. 272. Essential Recitals in the Writ. 273. Limitations Upon the Issuance of Execution — At Com- mon Law. 274. Under the Statutes. 275. Issuance Pending Stay of Proceedings. 276. Consequences of the Premature Issuance of Execution — Issued in Violation of Statutory Inhibition. 277. Judgment Must have been Rendered Before the Writ Can Issue. 278. When Advantage Must be Taken of Premature Is- suance of Writ. 279. Execution Issued After Death of Judgment Debtor — In Proceedings in the Nature of in rem. 280. Consequences of Issuance After Death of Sole De- fendant. 281. Death of One Only of Several Defendants. 282. Issued Before, but Sale After Death of Judgment Debtor. 283. Effect of Issuance of Execution After Death of Sole Judg- ment Creditor — Makes Writ at Least Irregular. 284. Sometimes Makes it Wholly Void. 285. Execution Supported by Dormant Judgment — Is Voidable Only as Between the Parties. 286. Intervening Rights of Third Parties. 287. In Case of Absolute Limitation and no Provision for Revivor. 288. Where Judgment Creditor is the Purchaser. 289. Sale under Satisfied Judgment — Is Void by the Weight of Authority. 290. Silence of Record and no Notice Gives Title to Pur- chaser, 14 TABLE OF CONTEXTS. Section 291. Effect of Reversal of Judgment upcn the Sale Thereunder — Purchase by Stranger in Good Faith and Without Notice. 292. Defendant's Rights and Remedy upon a Reversal. 293. The Rule also Applies to Judicial Sales. 294. Want of Jurisdiction Annuls the Sale in Any Event. 295. By Whom the Sale Must be Conducted — In Judicial Sales Generally by the Officer Designated in the Decree. 296. In Execution Sales by the Officer to Whom the Writ is Directed. 297. Lands Located in Another County. 298. Writ in Officer's Own Favor. 299. Sales by Administrators, Executors and Guardians. 300. Sale by Agent of Commissioner. 301. Limitations on Time of Making Sale — Sales Noticed for and Made on Non-judicial Day. 302. Sale Made upon Day Other than that Designated by Statute. 303. 'After Expiration of Active Energy of the Execution. 304. Sale After Death of Debtor on Execution Issued Before. 305. Sale on Execution Issued After Bar of the Statute is Complete. 306. Execution Issued Before but Sale Made After Lien of Judgment Expired. 307. Where Judgment was satisfied Before Sale. 308. Statute Repealed or Court Abolished Before Sale. 309. Property Put in Hands of Receiver Before Sale. 310. When Sale Must be at Public Vendue — Under Executions and Decrees and Orders of Sale. 311. When Levy an Essential Requisite — Not Necessary where Judgment is a Lien on the Land. 312. Where Judgment or Decree Directs the Sale of the Property. 313. Where Judgments are Not General Liens. 314. On Personal Property under Execution. 315. Effect and Sufficiency of Levy. 316. Failure to Take Oath Concerning the Sale — Statutes Re- quiring Oath Held Mandatory. 317. Effect of Failure to Give Additional Bond — Object or Re- quiring such Bond. -Under Healim: Statutes Want of Bond is Fatal. 319. Where no Healing Statutes Exist Want of Bond not Fatal. 320. Effect of Want of Notice of Sale — The Object of the Notice of Sale. 321. Purchaser Free from Fault. 322. Fraud and Collusion Imputed to Purchaser. TABLE OF CONTEXTS. 15 Section 323. • In Administrators', Guardians' and Other Judicial Sales. 324. In States Having a Healing Statute Notice Essential. 325. Notice an Imperative Requirement. 326. Notice May be Waived. 327. Time and Place Bids Receivable — Bid Must be Made at Time of Sale. 328. Plaintiff's Bid when no Other Persons Present. 3:21). Sales Made at an Improper or Unauthorized Place — In Judicial Sales an Irregularity M( r< ly. 330. Execution Sales of Land Outside of County are Void. 331. Of Personal Property Sold under Execution. 332. Sales without Appraisement or Inquisition — Are Void by the Current of Authority. 333. Are also Held Voidable Merely. 334. Waiver of Appraisement. 335. In Sales by Administrators and Guardians. 336. Sales to Raise Excessive Amount — Makes the Sale Vo'd- able Merely. 337. Makes the Sale Void. 338. Sometimes Held to Make Probate Sale Void. 339. Sale of Excessive Quantity — Sometimes Held to Make the Sale Void. 340. Is an Irregularity Making Sale Voidable Merely. 341. Sales of Property or Interest not Liable — Of Third Per- son Cannot be Sold. 342. Naked Legal Title only Held by Judgment Debtor. 343. Sale of Homestead is Void. 344. Sale of Land not Embraced in the Order of Sale. 345. Sale of Exempt Personal Property is Void. 346. Property of Municipal Corporation. 347. Community Interest for Separate Debt of One Spouse. 34S. Sales of Partial Estate, or of Different Interest — Where Execution Defendant is Owner of Entire Fee. 349. Sales in Probate Proceedings. 350. Sale of Property Subject to Mortgage. 351. Sale of Land in Adverse Possession — At Common Law was Void. 352. Void under Process of Law. 353. Does not Affect Execution or Judicial Sales. 354. Indefinite or Undesignated Tract Sold — If Inherently De- fective in Description Sale Void. 355. Effect of Inadequacy of Price — Mere Inadequacy Alone not Sufficient to Avoid a Sale. 356. Gross Inadequacy Sometimes held Sufficient to Avoid Sale. 357. Inadequacy Coupled with Irregularities. 10 TABLE OF CONTEXTS. Section 358. Sales in solido — Are Usually Considered Voidable Only. 359. Also Considered to Make the Sale Void. 360. Combinations and Devices to Prevent Competition — Sti- fling Bidding is Fraudulent and Makes Sale Invalid. 361. No title will Pass to the Fraudulent Purchaser. 362. Sales to Disqualified Purchasers — Are Against Public Policy. 363. Declared Void by Statute in Some States. 364. -Direct Purchase by Fiduciary is Void. 365. — — Purchase by Sheriff or Constable. 366. Purchase by Judges or Attorneys in the Case. 367. Purchase by Administrator After the Sale. 368. Secret Frauds and Infirmities Ineffectual on Title of Pur- chaser — -Fraud Vitiates the Sale. 369. Purchaser Free from Negligence and Fraud is Pro- tected. 370. Judgment Creditor not an Innocent Purchaser 371. Property Charged with Liens and Tru-ts. 372. — — Innocent Purchaser from Fraudulent Vendee. 373. Judgment in Fact Satisfied, but Record Silent. 374. Misappropriation of Purchase Money. 375. Purchase Money not Fully Paid. 376. Omission of Return or Defective Return. 377. Purchase Money Must be Paid to Proper Officer. 378. Pre-existing Equities and Unrecorded Deeds. CHAPTER V. Confirmation and Deed. Section 379. Meaning of Confirmation — Is the Judicial Sanction of the Sale. 380. What Matters are Cured by Confirmation and What Not. 381. Confirmation Essential to Title — Sale is not Complete until Confirmed. 382. After Confirmation Purchaser is the Owner. 383. Confirmation Discretionary — Is in Sound Discretion of Court. 384. Abuse of Discretion Corrected on Appeal. 385. General Effect of Confirmation — The General Scope of the Order. 386. Effect where Jurisdiction had Attached. 387. In Sales under Execution. 388. Court Adopts Proceedings of Officer. 389. Notice of the Application for Order of Confirmation — Where Statute Requires Notice to be Given. 390. Effect of Confirmation Entered Without Notice. TABLE OF CONTEXTS. 17 Section 301. How Confirmation Shown — Generally Required to be Shown Affirmatively. 392. When Confirmation Presumed. 393. Confirmation by Estoppel. 394. ■ May be Annulled, but not Collaterally. 395. What Irregularities are Cured by Confirmation — Ap- praisement or Inquisition Wanting - . 396. Defects in Notice or Want of Notice. 397. Sale at Wrong Time or Place or Person. 398. Departures from Order or Decree. 399. Defective Bond or Omission to Give Bond. 400. Other Irregularities Cured. 401. Sales without Notice or Order. 402. Defects Considered Incurable by Confirmation. 403. Deed Essential to Transfer of Legal Title — In Judicial and Probate Sales. 404. In Execution Sales. 405. In Several States Deed not Essential. 406. When, by Whom and to Whom Deed to be Made — By Whom Deed Executed in Execution Sale;. 407. By Whom Deed Made in Chancery and Probate Sales. 40S. To Whom Deed to be Made. 409. When Deed Made where Right of Redemption Exists. 410. When Deed Executed where no Right to Redeem Exists. 411. Statutes Requiring Deed Made within a Certain Time. 412. If Required Confirmation Must be First Had. 413. Execution of Deed Compelled if Officer Refuses to Make It. 414. When Deed Void because Deficient in Form and Substance — General Rule as to Sufficiency of Deed. 415. Recitals Sufficient in Deed Under Executicn. 416. Instances of Omission or Insufficient Recitals. 417. Deeds in Probate Proceedings. 418. Recitals as Evidence by Statute. 419. Sufficiency of Description Essential. 420. Omission or Defective Acknowledgment. 421. Title Obtained by Purchaser at Execution and Judicial Sale — In Judicial Sale. 422. What Title Obtained by Deed under Execution Sale. 423. Effect of Deed by Relation — Relates Back to Inception of the Lien. 424. Sale under Executions when One or More Void,, 18 TABLE OF CONTEXTS. CHAPTER VI. Collateral and Direct Impeachment of Judicial and Execution Sales. Section 425. Collateral and Direct Attack upon Judicial Proceedings Distinguished — Direct Attack Defined. 426. Instances of Direct Attack. 427. Collateral Attack Defined. 428. Instances of Collateral Attack. 429. Presumptions as to Jurisdiction — Judgments of Courts of General Jurisdiction. 430. Insufficient Service Appearing. 431. Presumption in Case of Constructive Service. 432. Presumption of Jurisdiction as to Inferior Courts. 433. ■ Presumptions as to Proceedings of Probate Courts. 434. When Collateral Impeachment Possible — In Case of Want of Jurisdiction to Pender Judgment. 435. By Third Persons. 436. Sale Vacated by Direct Proceeding — When by Motion Must be W T ithin a Reasonable Time. 437. By Suit in Equity. 438. Instances of Execution and Judicial Sales Void Collater- ally — If Jurisdiction is Wanting Sale Void. 439. Sales Founded upon Satisfied Judgments. 440. Land Sold not Embraced in the Petition. 441. Petition for Order or License Fatally Defective. 442. ■ Land Sold not Embraced in the Order or Decree. 443. No Notice or Application fov Order of Sale. 444. Sale of Land Located in Another State. 445. Failure of Jurisdiction by Constructive Service. 446. Sales in Foreclosure of Tax Liens. 447. No Additional Bond, Notice of Sale Given or Oatb Taken. 448. Execution Sale at Wrong Time or Place. 449. Sahs A'oid Because of Defect in Execution or its En- forcement. 450. Sales A'oid Because of Fraud in Judgment or Sale. 451. - - — Trial Judge Disqualified from Acting. 45? Effect of Statute of Limitations on Judicial Sal? — Statute Does Not Apply to Void Sales. 453. Essentials to Availability of Plea of Statute. 454. Statutes Declaring the Effect of Judicial Proceedings- Purchase by Disqualified Purchaser. 455. — — Sale not Void when Certain Things Appear. 456. Other Defects and Irregularities. TABLE OF CONTEXTS. 19 CHAPTER VII. Caveat Emptor, and the Legal and Equitable Rights of Purchasers at Void Execution and Judicial Sales. Section 457. Application and Qualification of the Rule caveat emptor — Defective Title or Failure of Title. 458. In Case Judgment or Sale is Void. 459. Effect of Accident. Fraud or Mistake. 460. Purchase by Judgment Creditor. 461. Right of Purchaser to Refuse Payment of his Bid — Winn Judgment or Sale is Void. 462. If Purchaser Bought with Notice Can Not Resist. 463. Negligence of Purchaser Precludes Resistance. 464. Purchaser is Chargeable with Facts Disclosed by the Record. 465. If Purchaser has been Deceived He May Refuse. 466. May the Purchaser Demand a Marketable Title. 467. Purchaser a Party to Proceedings and May be Com- pelled to Pay. 465. Purchaser is Liable for Deficiency on a Resale. 469. Right of Purchaser to Recover Money Paid — Rule caveat emptor Affecting Recovery. 470. Reimbursement Compelled from Parties. 471. Reimbursement as a Condition Precedent to Recovery of Land. 472. Judgment Creditor as Purchaser. 473. Void Sales Ratified by Parties in Interest — Confirmation and Ratification in General. 474. Ratification by Receipt of Proceeds in Execution Sale. 475. Chancery and Probate Sales Ratified by Receipt of Proceeds. 476. Ratification by Conduct Otherwise Than by Receipt of Proceeds. 477. Ratification by Minors Made. 478. Purchaser in Chancery Sales has Right to Subrogation — Doctrine Applies to Chancery Sales in General. 479. Subrogation in Void Mortgage Foreclosure Sales. 480. In Foreclosure of Tax Liens. 481. Purchasers at Probate Sales have Right to Subrogation — The Doctrine of Subrogation Generally Applicable. 482. Right Exists in Case the Sale is a Nullity. 483. Right of Purchaser at Execution Sales to Subrogation Affirmed — Where Execution Defendant has no Title. 484. Where Judgment is Valid, but Subsequent Proceed- ings Void. 20 TABLE OF CONTEXTS. Section 4S5. Doctrine of Subrogation Denied — Results of Denial of the Eight to Subrogation. 4S6. Effect of Purchaser's Fraud on Eight to Subrogation — Obtains no Title and Forfeits Money Paid. 487. Purchase of Homestead in Contravention of Statute. 48S. Fraudulent Purchaser May Assert Equities in Mis- sissippi. 489. Eight of Purchaser to Equitable Assistance in Supplying Defects. Omissions and Mistakes — Equity will Not Aid a Defective Execution of Statutory Power. 490. ■ Correction of Errors or Mistakes in General. 491. Errors or Mistakes in Proceedings and Deed. 490. Uncertainty of Description in Mortgage and Proceed- ings. 493. Equity will Compel Officer to Make Proper Convey- CHAPTER VIII. Curative Statutes, and Special Acts Authorizing Involuntary Sales. Section 494. Effect and Constitutionality of Curative Statutes — L'mi- tations upon Passage of Curative Statutes. 495. Irregular Judicial Proceedings and Sales May be Confirmed. 496. Limitations on Scope of Curative Statutes in General. 497. Void Judicial Sales and Proceedings Incurable. 498. Can not Contravene the Constitutional Guaranty of Due Process of Law. 499. Can not Invade the Province of the Judiciary. 500. Effect of Pending Causes. 501. Defects not Jurisdictional not Curable by Confirma- tion. 502. Effect of Curative Statutes Limited to Original Par- ties. 503. Operation of Curative Statutes upon Tax Titles. 504. Involuntary Sales under Special Acts — General Observa- tion on Such Acts. 505. Theory upon Which Sales under Special Act Author- ized. 506. G rounds upon Which Sale under Special Statute Au- thorized. TABLE OF CASES. [References are to sections.] Abbott v. Curran, 397. v. Peck, 436. Abernethy v. Dennis, 489. Acer v. Hotehkiss, 361. Ackerson v. Orchard, 72, 156, 228, 233, 496. Acock v. Stewart, 414. Abdil v. Abdil, 70. Adams v. Buchanan, 420. v. Baldwin, 113, 115, 445. v. Cowles, 48, 67, 108, 117, 131, 181. v. Cox, 78. v. Hockscher, 78. v. Hosmer, 119. — v. Jeffries, 226. v. Kesee. 339. v. Morrison, 338. v. Palmer, 500. v. Smith, 472. Agen v. Shannon, 391. Agar v. Tibbitts, 432. Ahlhauser v. Butler, 89. Ainsworth v. Greenlee, 331. Aitken v. Kinnan, 417. Albee v. Curtis. 203. Alday v. Rock Island, 459. Aldrich v. Board, 499. v. Lewis, 357. v. Maitland, 361. V. Wilcox. 336. 340. Alexander v. Abbott, 276. v. Hardin, 3, 388. v. Lvdick, 174. - v. Howe, 1, 2, 3. 4, 18. - v. Maverick, 184. - v. Miller, 269. 272. v. Mortgage Company, 438. v. Nelson, 27. -15.8. Alfred v. Magahan, 467. Allen v. Brown, 47G. v. Coates, s I. v. Cox, 103. v. Elderkin, 8. a*. Gillette. 3. v. Kellam, 210. v. Martin, 383. v. Moss, 489. v. Parrish, 333. Allen v. Poole, 8. — v. Kay, 446. v. Sales, 416. v. Saylor, 70, 172. v. Shanks, 3S6. v. Stage Company, 27S. v. Trimble, 406. Allis v. Billings, 27. Alston v. Emmerson, 70, 172. Allsbrook v. Eggleston, 391. Allsmiller v. Freuchenicht, 238. Almand v. Almand, 100. Allman v. Taylor, 374. Alms v. Gates, 355. Alston v. Emmerson, 70, 172. v. Morphew, 331, 449. Aired v. Montague, 330. Alter. Appeal of, 498. Ames v. Williams, 216, 217. Anderson v. Brown, 406. v. Coburn, 111. v. Gray, 180, 201, 262, 267, 269, 294. v. Goff, 110, 125, 152. v. Hawhe, 61, 90. v. Marshall, 113. v. Rider, 375. v. Roberts, 31. Andrews v. Avory, 150. v. Goff, 386. v. Howard, 423. - v. O'Mahoney, 32, 467. v. Powell, S4. v. Richardson, 484. v. Russell, 494. v. Scotan, 1, 17. - v. Wolcott, 421. 422. Ansonia Company v. Connor, 303, 449. Anthony v. Kasey, 146. v. Wessel, 404. v. Seminary, 161. Apel v. Kelsey, 4, 72, 156, 233, 310, 335, 381, 396, 398, 399, 443, 495. Armidon v. Peck. 467. Armis v. Smith, 14. Armstrong v. McCoy, 414, 415. Arnold v. Donaldson, 457. v. Green, 47S. 22 TABLE OF CASES. Arnold V. McCord, 360. V. Scott, 406. Armour v. Cochrane. 2, 6. Armstrong v. Vrooman, 34. Arrowsmith v. Gleason. 319, 399. v. Harmoning, 319. Arthur v. Israel, 187. Ashtcn v. Slater. 205. Ashworth v. Harper, 100. Aspley v. Murphy, 308. Atkinson v. Allen, 200. 450. v. Hancock, 206. Atcheson v. Waldron, 360. Atkins v. Kinnon, 223, 230. Atlas National Bank v. More, 199. Aultman v. Seiberling, 17. Austin v. Nalle, 139. Atwater v. Bank. 422. Atwood v. Bearss, 274. Austin v. Seminary, 161. v. Tilden, 457. v. Willis, 6. Axford v. Graham, 187. Axton v. Carter, 363. 477. Avers v. Baumgarten, 383. v. Duprey, 333. B. Babcock v. Cobb. 253, 261, 318, 455. V. Doe, 332. Bachelder v. Chevas, 267. 336. Bacon v. Cropsey, 274. 278. Bagley v. Ward! 203. 423. Bailey v. Bailey, 172. 192, 479. v. Dilworty, 251. v. Orphan School, 292. v. Sundberg, 196. Baird v. Lent. 332. Baker v. Casey. 331. v. Chafline, 180. v. Cb.isb.olm, 53. v. Coppenbarger, 342, 422. v. Roberts, 334. Baldwin v. Cullen. 359. Ballard v. Scruggs, 2s7. 358, 359. Bal linger v. Drook, 206. v. Tarbell, 106. Balkely v. Abert, 337. Balm v. Xiimi, 142. 277. Ball v. Collins, 442. Bank v. Abbott, 492. v. Bank, 435. v. Beatty, 296. v. Brooks, 90. v. Carpenter, 374. v. Distilling Company, 307. v. Dry Goods Company, 91. v. Dudley. 308. v. Eldridire, 80. Bank v. Elwood, 429. v. Eltinge, 469, 484. v. Fair Association. 355, 412. 85. 436. v. Frame, 476. v. Franklin, 272. v. Gibson, 494, 502. v. Green, 275, 387. v. Guthrie, 343. v. Hamer, 332. v. Humphreys, 2, 458. - y. Huntoon, 332, 387, 388, v. Ingersoll, 290. v. Insurance Company. 59, v. Lienallen, 423. v. King, 422. v. Martin, 459, 461. v. Miller. 494. v.' Moore, 199, 450. v. Morsell, 206. v. Neel, 1, 3, 142, 379. V. Page, 312. v. Parent, 95. v. Pearson, 100. v. Peters, 45. v. Riley. 343. v. Risley, 208. v. Rollins, 343. v. Spencer. 437. v. Tighe, 206, 422. v. Trapier, 330. v. Turney, 460. v. United States, 361, 486. v. Walden, 402. v. Wells, 204, 423. v. Whitehall, 272. v. Wilcox, 184, 186. Banks y. Amnion. 457. - v. Evans, 424. 458. v. Bales. 359. Banta v. Reynolds, 456 Barber y. Graves, 172. v. Morris, 67, 92. 106, 111, 118, 149. 181, 183, 428, 430, 43S. 445. Baptist Union v. Atwell, 119. Bardeen v. McEJinnie, 303. Barker v. Kane, 458. Barling v. Bishopp, 315. Barnard v. Boiler, 343. v. Barnard, 45. Barney v. Vigoreoux, 76. Bardsley v. Hines, 126. Barnham v. San Jose, 469. Barclay v. Hendrix. 134. Bamal v. Gleim, 409. Barling V. Peters. 356, 463. Barnes v. Scott, 154. TABLE OF CASES. 23 Barnes v. Gordon, 468. v. Haves, 59, 269. v. Light, 374. v. Treat, 315. v. Zoereher, 333, 340. Barnett v. Bull, 317. Barrett v. Churchill, 461. v. Feeney, 41S. v. Furnish. 281, 282. v. McAllister, 59. . — v. Sterans, 350. v. Wilson, 343. Barrick v. Horner, 187. Barron v. Mullen, 459. Bartee v. Engles, 335. V. Tompkins, 382, 461. Barth v. Bank, 286. Bartlett v. Judd, 489, 490. Bartholomew v. Warner. 341. Barton v. Hunter, 368. v. Sanders, 113, 140. Bassett v. Daniels. 381. v. Lockhart. 461. v. Sherrod, 419. Bates v. Gage, 142. v. Will aid, 313, 37G. Battle v. Guedry, 269. Baugh v. Baugh, 200. Baumann v. Franse, 343. Bawry v. Ellis, 331. Bay v. Gilliland, 413. Baylev v. Greenleaf, 11. Beach v. Atkinson, 100, 146. v. Beard, 113. v. Dennis, 280. Beale v. Botetout, 285. Beam v. Johnson. 355. Beamer v. Winter, 331. Bean v. HofYendorfer, 436. Beard v. Dansby, 500. Bearson v. Jamison, 299. Beattie v. Wilkinson, 107. Beaupre v. Brigham, 22, 92, 125. Beauregard v. New Orleans, 18, 233. Beckett v. Cuenin, 48, 106, 107, 183. Beebe v. United States, 276. Beecher v. Baldy, 343. Beeler v. Bullitt, 199. Behymer v. Wadloh, 185. Beidler v. Freidler, 397. Belknap v. Charlton, 49 Bell v. Flaherty, 457. v. Good, 130. v. Green, 335. v. Love, 213. v. Olmstead, 445. v. Taylor, 340, 358. Bellande, Succession of, 99, 186, 433. Bellingall v. Duncan, 296. Bellas v. McCarty, 420. Bellamy v. Guhl, 242. Belmont v. Carnen, 113. Benbow v. Boyer, 457. Bennefield v. Albert, 180, L81. Bennett v. Caldwell. 484. - v. Mattingley, 27. V. ( >\\ (II. - Bennington v. Reed, 70. Benners v. Reinhart, 303. Bennitt v. Mining Company, 12, 23, 189. Benny v. Clein, 291. Kent v. Graves, 5 I. Bentley v. Long, 484. Benton v. Hatch, 289, 373, 439. Benz v. Hines, Bergman, Ex parte, 4:27. v. Hutcheson, 199, 450. Berkely v. Judd. 167. Bernhart v. Brown, 97, 179, 445. Berrian v. Rogers, 130. Berroth v. McElvain, 101. Beverly v. Burks, 54. Berry v. Griffith, 314. - v. Lovi, 400. Young, 400. Bethel v. Bethel, 243. v. Sharp, 368. Bettison v. Budd, 415, 418. Bewley v. Craves. 432. Bickerstaff v. Bellinger, 292. Bickley v. Riddle, 459. Bigelow v. Booth, 277. v. Loan & Trust Company, 56. v. Stearns, 149. Bingham v. Jones. 134, 22C. Birch v. Bates, 325. Birchall v. Griggs, 445. Bird v. Norquist, 129. v. Smith, 461. Bishop v. Freeman, 100, 146. v. O'Conner, 459, 482, 4S4, 485. Bissell v. Mooney, 376. v. Spring Valley Township, 197. Black v. Dressier, 249. v. Walton, 458. Blackburn v. Boland, 216. v. Clarke, 484. Blackman v. Baumann, 254, 316. Blackmore v. Baker, 467. Blackwell v. Townsend, 227, 245, 344, 440. Blair v. Chamberlain. 206. - v. Sennet t. 186. v. Tuttle, 81. Blaisdell ex rel. v. Billings. 36, 39. 24 TABLE OF CASES. Bleidon v. Coal & Mining Com- pany, 134. Blagden v. Broden, 118. v. Douglass, 161. Blanc v. Mining Company, 95, 152. Bland v. Bowie, 469. v. Fleeman. 362. v. Muncaster, 320, 323. 361. 386. Blanks v. Rector. 2S1. Blanton v. Carroll, 61. 181. v. Morrow, 331. Blanz v. Bain, 288. Blashfield v. Smith, 278. Blatchford v. Conover. 13. 258, 41S. Bliss v. Insurance Company. 355. Block v. Henderson, 54. Blodgitt v. Hitt, 72, 15S, 235. 397. 481. v. Hobart, 492. Blood v. Haman, 369, 373. v. Light. 415, 416. Bloom v. Burdick. 162, 215, 223, 235. 248. Bloomington v. Brokow, 266. Blossom v. Railway Company, 1, 8, 295, 403, 408. Blount v. Davis. 408. Blumberg v. Birch, 104. Blythe v. Dargin, 4S9. Board v. Fahlor, 503. v. Markel, 4:;2. Bobb v. Barnum, 389, 467. Bodkin v. Merit. 470. 4S5. Boehm v. Botsford, 385. Bogert v. Bell, 364. Boggs v. Fowler, 458. — v. Hargraves. 382, 461. v. Howard, 31. Bogle v. Bloom, 267. 268. Bolgiano v. Cooke. 3. 295. Bolivar County v. Coleman, 432. Bollinger v. Chouteau, 445. Bompart v. Lucas, 216. Bond v. Montgomery, 457, 4S1, 4S7. v. Ramsey, 459. v. Wilder. 272. Bonnell v. Roane, 418. Bonner v. Lessley, 479. Boon v. Bowers, 505. Boone v. Moore, 408. Boor v. Lowry, 168. Boorum v. Tucker. 459, 466, 467. Boos v. Morgan, 202, 263, 289, 291. 439. 460. Boren v. McGhee, 290. Boring v. Lemmon, 405. Borders v. Hodges, 157. 473. 4S5. Borland v. Kingsbury, 445. Boro v. Harris, 459. Bosbv v. Burrow, 179. Boss 'v. Obry, 490. Bostikk v. fceizer, 331, 342, 422. Boswell v. Dickinson, 109. Boswick v. Skinner, 433. Botsford v. O'Conner, 153, 158, 401. 428, 430, 438. Bouldin v. Swart, 358. Bowar v. Railway Company, 273, 276, 285. Bowen v. Bond, 159, 229, 231. 247. - v. Jones, 298. v. Wickersham. 491, 4'92. Bowman v. Knott. 325. Box, In re, 462. Boyce v. Sinclaire, 495. v. Strother, 459. Boyd v. Blankman, 29, 31, 364. - v. Ellis, 413, 422. v. Fletcher, 66. Boykin v. Cook, 382, 453, 461. Boyle v. Maroney, 208, 280. Boyles v. Boyles, 452. Boynton v. Foster. 141. Bozza v. Rowe, 1. 2. 33. Brace v. Shaw. 424. Bradford v. Larkin, 1S4. Bradshaw v. Atkins, 491. Brady v. Burk. 141, 196. Bradley v. Jamison, 431. v. Kesee, 314, 315. Bradstreet v. Xeptune, 196. Bragg v. Gaynor, 122. v. Thompson, 445. Braley v. Simonds, 34S. 349. Bramstead v. Ward, 148. Branch v. Branch. 27s. v. Foust. 321. 356. 436. Brandies v. Cochrane. 422. Brandon v. Brown. 477. 4s 1. Bray v. Adams. 440. - v. Marshal, 376. v. McClury, 445. Brebner v. Johnson, 206. Breckwolt v. Morris, 174. Bree v. Bree, 240. Brcssler v. Martin. 459. 472. 4s3. Brewer v. Herbert. 382. - v. Nash, 473, 475, 479. v. Sibley, 84. Brewing Company v. Hirsch, 135. Brenham v. Davidson, 505. 506. Brickhouse v. Sutton. 149. 181, 495. Bridge Company v. Packing Com- pany, 108. Bridgeman v. McKissick, 208. Bridges v. Supervisors, 146. Brigance v. Evans, 315. 354. Brigham v. Faverweather, 95. Bright v. Boyd, 4S9, 490. TABLE OF CASES. ^5 Brindley, Appeal of, 154. Brintcn v. Seevei's, 494. Brisbane v. McCrary, 408. Britton v. Larson, 107. Broadwater v. Richards, 245. Brock v. Rice, 383. Brockenbrough v. Brockenbrough, 207. Bromley v. Goodrich, 27. 28. Brooklyn Trust Company v. Bul- mer, 7 s - Brooks v. Radcliff, 408. v. Rooney, 321, 415. Brosmer v. Kelsey, 38. Brown v. Bank, 421. v. Brown, 479. V. Butters, 332. v. Campbell, GO, 95, 108, v. Christie, 329, 397, 399. - v. Dickson, 314, 315. V. Duncan. 267, 272. v. Gilmore, 380. v. Goble, 105. v. Gray, 457. v. Irwin, 58. v. Lane, 314. - v. Maher, 452. v. McKay, 424. v. Pratt, 314, 315, 331. v. Railway Company, 111, US. 183. v. Snell, 350. v. Wilson, 194. Bullard v. McArdle, 201, 262, 2S9, 294, 373, 439. v. Woods, 94. Bullen v. Dawson, 357. Bullock v. Bullock, 175. Bumberger v. Clippinger, 466. Bumb v. Gard, 326, 393. Ilium v. Ahl, 199. v. Lindsay, 206. v. Todd, 317. 152. Bunting v. Gilmore, 470, 485. Hunts v. Cole, 368. Bunce v. Bunce, 239, 319. Bunch v. Spotts, 100, 146. Bunker v. Rand, 358. lunge v. Brown, 2s2. Burdette v. Colgan, 83. Burdick v. Burdick, 351. Burden v. Taylor, 8. Burgess v. Kirbv, 161. Burk V. Bank, 410. v. Stockley, 168. Burke v. Daly, 366. v. Johnson, 206. Burkett v. (lark, 312, 332. Burks v. Bennett, 139. Burnham v. Doolittle, 84. Burns v. Hamilton, 461, 469. - v. Ledbetter, 382, 458, 461, Brownfield v. Dyer, 129. Browning v. Smith, 427. Brumbaker v. Jones, 320, 396. Bruce v. Doolittle, 142. ■ v. Nicholson, 205. Bruckman v. Taussig, 180, 429. Brumbaugh v. Zollinger, 343. Bruschke v. Vereign, 60. ■ v. Wright, 479. Brush v. Ware, 486. Bryan v. Bauder, 218. v. Publishing Company, 110, 122. Bryant v. Fairfield, 292. v. Johnson, 276. v. Whitcher, 341, 435. Bryson v. McCreary, 497. Buchanan v. Tracy, 415, 416. — V. Bilger, 425, 426. Buckmaster v. Carlin, 369. Buckner v. Wood. 317. Buffum v. Dean, 341. Building Association v. Scott, 478. v. Harden. 59, 428. Bull v. Gilbert. 279. 280. v. Harris, 266. 470, 4s4. Burr v. Seymour, 107. Burrell v. 'Railway Company, 211, 386, 473. Burris v. Kennedy, 29, 30, 218, 219, 363. Burrus v. Burrus, 70. Bustard v. Gates, 70. Burwell v. Herron, 341. Burt v. Hasselman, 265, 415. Burton v. Delaplaine, 287. v. Perry, 191. v. Spires, 361, 368. Busey V. Tuck, 296. Bush v. Lindsay, 433. Butler v. Fitzgerald, 457. - v. Haynes, 280. v. Johnson, 224. 247. Butterfield v. Walsh, 269. Buzzell v. Hardy, 343. Bybee v. Ashby, 270, 296. Byers v. Fowler, 259. P.'vnum v. Govan. 280, 438, 458. Byram v. McDowell, 427. Byrne, In re, 216. Byrnes v. Sexton, 2S0. Cahill v. Bassett, 246. Cain v. Woodward, 303, 304, 449. Cake v. Cake, 355. 26 TABLE OF CASES. Cale v. Shaw. 382. Caldwell v. Blake. 376. v. Caldwell. 362. v. Martin, 385. v. Palmer. 484. v. State. 40. v. Trusdale, 343. v. Walters, 174. Calhoun v. Leary, 422. Callaghan v. Fluker, 211. Callais v. McLeod, 2?--. fallen v. Elliston. 48, 194. Cambrelling v. Purton, 406. Camberford v. Hall, 456. Camden v. Mahew, 467. v. Plain, 1S6. 231. 259, 391. 433. Cameron v. Logan. 459. Campe v. Saucier, 468. Campau v. Barnard, 313. ■ v. Gillett, 154. 247. Campbell v. Chandler. 142. v. Harmon. 157, 234. v. Iron Works. 352. v. Johnson, 17. v. Knight, 316. ■ v. Leonard, 437. v. West, 58. Campbell Co. v. Mader, 65, SO. Campfield v. Johnson, 342. Canal Company v. Gordon. 23. Cantelou v. Whitley. 156, 233. 443. Cantwell v. McPherson, 404. Carden v. Lane. 369. Carder v. Culbertson, 402, 415. ■ v. Carlisle. 339. Carlyon v. Eade. 354. Cannichael v. Strawn, 416. Carnahan v. Pell, 271. v. Yerkes, 410. 436. fames v. Mitchell, 110, 431. Carney v. Emmons. 422. Carney. 325. Bank, 274, 276. v. Roe. 315. v. Russell, 359. v. Shepardson, 82. v. Sherfy. 407. v. SI dwell. 263. 285. Bank, 80. v. (air. L29, 383. v. Coal Company, 95. v. Hunt. too. Carrigan v. Drake, 237. v. Schmidt, 127. 356. Carrol] v. Olmstead, 506. Carson v. Suggett, 292. I 'arver v. Carver, 61, 86. v. Lasalette, 206. v. Spence, 355. Carpenter < 'a it Carter v. Carrigan, 169. — v. Penman, 422. v. Walker, 421. Cascaden v. Cascaden, 357. Case v. Beauregard, 197. x. Gregory, 259. - V. Hannahs. 432. v. Plato, 277. Cashion v. Fania, 459. Cashman v. Henry. 174. Cassidy v. Woodward, 10S. Castleman v. Relfe, ; Casey v. Stewart, 144. Cates v. Pickett, 77. Catron v. Railway Company. 50. Cattle Company v. Boon, 149. ( auldwell v. Curry, 432. Cavanaugh v. Smith, 79. Cayce v. Powell, 197. Cazet v. Hubbel, 467. Cecil v. Cecil, 251. Center v. Billinghurst, 315. Cerro Gordo Co. v. Wright. 54. Chadbourne v. Radcliff, 452. Chaffee v. Hooper. 146. — ■ v. Telegraph Company, 82. Challis v. Wise. 388. Chamberlain v. Chamberlain, 219. Chambers v. Cochran, 459. - V. Hodges. 139. 450. V. Jones, 238, 300. 47>. 4^4, 4-5. v. Perry, 343. Chamblee v. Taroox, 356. Chandler v. Burdett, 315. v. Hanna. 22. ■ v. Moulton, 365. Chapman v. Brooklyn. 469. v. Harwood, 34. 327. 410. Champney v. Smith. 435. Chapin v. McLaren, 263. 289, 439. Chardevoyne v. Lynch. 230. Charles v. Morrow, 106, 107. 122 134. Chase v. Dana, 202. v. Gas Company. 265. v. Joiner. 468. v. Ross, 210. v. Van Metre, 5. 381. • hastian v. Phillips. 315. Chatterton v. Young, 174. Chaiivin v. Yaliton, 36. ( hauvennes v. Priestley, 40. ( heely v. Clayton. 67. Cheney v. Harding, 77. ( hesebro v. Barme, 272. Chestnut v. Shane, 495. Chew v. Hyman. 3. Chichester v. Candle. 277. Childress v. Hurt, 403. TABLE OF CASES. •r. Childs v. Hayman, 153. v. Lauterman, 59, 82, 172. Chilson v. Eleeves, 197. Christ v. Flanagan, 281. Choice v. Charles, 343. Church v. Crossman, 88. Cicero Township v. Pickens, 427. City of Pekin v. McMahon, 340. Claflin v. Dunne, 167, 170. Clark v. Boyle, 12. v. Bond. 290. v. Bryan, 92. v. Costello, 380. v. Flint, 198. v. French, 315. v. Hayes, 506. v. Hillis, ISO, 235. v. Kraker, 358. v. Miller, 265. , v. Reinig, 274.* v. Sawyer. 296, 414, 415, 41S. v. Thompson, 158, 234, 238, 242, 401, 428, 437. v. Van Surlay, 506. v. Watson, 424. Clay v. Kagelmacher, 405. Clayton v. May, 269. demons v. Cox. 378. V. Bounds. 419. Clendenning v. Ohl, 491. Cleveland v. Hopkins, 90. v. Simpson, 207, 209. v. Tufts, 292. Click v. Burris, 381, 382. Clingman v. Hopkie, 2S0. Clint v. Catron, 454. Clipson v. Villars, 354. Cloud v. Pierce City, 07. dusky v. Burns, 505, 506. (lute v. Emerick, 203. 289, 373. Chimin v. McLaughlin, 475. v. Reynolds, 107. Coad v. Coad, 82. Cobb v. Garner. 72, 156, 159. Cobbey v. Wright 164. Cochran v. Loring, 445. v. Van Surlay, 374, 506. Cockey v. Cole, 379. v. Milne, 207. Cofer v. Miller, 260. Coffin v. Estes, 446. v. Freeman, 281, 282, 304, 336. , Coffrode v. Judge, 56. Cohee v. Baer, 172, 428. Coit V. Haven, 07, 194. Colcord ex rel. v. Young. 139. Coleman v. Freeman, 23. v. McAnulty, 167. Coleman's Appeal, 56. Colgan v. Keen, 499. College, In re, 44. Collier v. Stonbough, 332. Widham, 282. Collins v. Ball, 401, 442. v. Dixon, 313. v. Hydon, 189. v. Montgomery, 331. v. Smith, 321, 370. Colt v. Colt, 161, 189. Haven, 429. Comegys v. Emerick, 363, 364, 128. Commonwealth v. Magee, 303. v. Warwick, 499. Comstock v. Crawford, 230, 432. Conger v. Babcock, 408. v. Converse. 406. Congden v. Chilcote, 189. Conkrite v. Hart, 315. Connell v. Galligher, 422. Connolly v. Rue, 356. Conover v. Musgrove, 260, 380. Conrad v. Brown, 81. v. Dardee, 302. Conway v. Cable. 497. Convers v. Mercies, 492. Cook v. Darling, 194. v. Timmins, 331. Cookerly v. Duncan. 495. Cooke v. Waters, 358. Cooley v. Wilson, 259, 320, 323. Coombs v. Gordon, 341, 435. Coon v. Coon, 211. Cooper v. Hepburn, 468. v. Horner, 374. v. Jacobs. 269, 272. - v. Reynolds. 52, 10S, 196. v. Sutherland, 45, 183, 185., 316, 453. v. Galbraith, 14. Coppinger v. Rice, 179. Corbitt v. Clenny. 375. 410. v. Timmerman, 59, 82, 91. Corbin v. Pearce, 303. Corgile v. Fernald, 505. Corwith v. Bank, 270. Cornwall v. Bank, 119. Corley v. Anderson, 212. Corwin v. .Merrill, 158, 185, 223, 235, 243, 441. V. Shoup, 475. Costle v. Noyes, 189. Cothran v. Knight, 428. Cotton v. Holloway, 215, 218, 220, 441. v. Rupert, 106, 116, 44.'.. 475. Cottrell v. Thompson, 21. Courtney v. Parker. 206. Covey v. Noggle, 100. 38 TABLE OF CASES. Covington v. Ingram, 458. Cown v. Lowry, 276. Coward v. Chastian, 305. Cowdin v. Cowdin, 384. Cowen v. Toole, 186. v. Withrow, 438. Cowgill v. Long, 500. Cox v. Band, 333. v. Story. 242: Coyne v. Souther, 457. Crabtree v. Whitselle, 301. Craemer v. Holbrook, 475, 482. Craft v. Merrill, 263, 289. Craig v. Fox, 315. v. Fraser, 92, 445. v. Stevens, 358. Crane v. Guthrie, 348, 349. v. Kimmer, 429. Crary v. Sprague, 361. Craven v. Bradley, 190. Crawford v. Ginn, 437. Crenshaw v. Julian, 187, 342. Creps v. Baird, 457. Cresson v. Stout, 331. Crippen v. Chappel, 458, 4S1. Crocker v. Bellange, 27. Crombie v. Little, 10S, 11'.). Cromwell v. County of Sac, 197. v. Hull, 43. v. MacLean, 478. 503. Crosley v. Arkwright, 29. v. Hutton,- 170. Cross v. Armstrong. 95. V. Knox, 387, 397. v. Ware. 343. Crouch v. Eveleth, 299. (muter v. Crouter, 78, 86, 103, 135, 4(31, 466. Crow ell v. Johnson, 384. v. McConkey, 474. Cruikshank v. Luttrell, 375, 410. (rump v. Ingersoll, 362. Cruzen v. Stephens, 128. ( ludabeck v. Strong, 59, 135. Cully v. Shirk, 425. Culver v. Hardenbaugh, 215, 219, 441. v. Phelps, 181, 370. Cuminings, Appeal of, 459. v. Cummings, 251. - v. Pfouts, 332. - v. Powell, 27, 30. v. Simpson, 245. v. Stark, 38. - v. Talior, 92, 111, 122, 1S3. 445. Cunningham v. Anderson, 234. 245. 161. v. Lurk. 280. v. Cassidy, 358. Cupp v. Wesch, 495. Curd v. Lockand, 322. Curley, Succession of, 335. Curran v. Kuby, 159, 230, 247, 252. Curriden v. Railway Company, 4:2:.'. Currie v. Franklin, 186, 229,*433. v. Stewart, 317. Curtis v. McCullough, 271. v. Millard, 404. — ■ v. Norton, 381, 412. v. Wilcox, 138. Cutts v. Hoskins, 179. D. D'Arusement v. Jones, 150. Dady v. Brown, 506. Daily v. Sharkey, 187. Dale v. Insurance Company, 49£ - v. Metcalf, 501. v. Shirley, 17. Dallas v. Peacock, 138. Daly v. Ely, 400. '■ — v. State, 272. -, Appeal of, 349. Damp v. Dana. 21. Dancy v. Strickland, 372. Daniel v. Leitch, 383. Daniels v. McBain, 333. v. Watertown, 494, 502. Danby v. Daws, 215, 216. Danley v. Rector, 457, 459. Darlargue v. Cress, 473. Darvin v. Hatfield, 382. Davenport v. Covil, 492. v. Young', 506. Davis v. Bank, 174. v. Brandon, 407. v. Burke, 208. v. Davis, 200, 272. — v. Day, 343. - v. Drew, 313. — v. Fisk, 142. — v. Helbig, 506. — v. Hudson, 186, 252, 254, 256, 316. 324. 429. 455. v. Hughes. 362. — v. Kline. 272, 414. v. Lumber Company, 136. v. Men ash a, 499. v. Railway Company, 38. — v. Robinson, 107, 130, 181. - v. State. 494. — ■ v. Walkabee. 60, 445. - v. Walker, 179. Davidson v. Bates, 253, 319, 399, 426. - v. Frew, 423. ■ v. Johonnot, 505, 506. v. Kochler. 505. TABLE OF CASES. 39 Davidson v. McMurty, 129. — v. New Orleans, 30. v. Young, 473. Daw ley v. Brown, 382. Dawson v. Daniel, 274. v. Goodwin, 490. - v. Helmes, 211, 245, 256, 386, 47:;. v. Litsey, 336, 337. 380. Day v. Rice, 281, 315. — ~— v. Sharp, 283. Dean v. Morrison, 334. Deans v. Wilcoxen, 154, 230, 231, 247. De Bardenlaben v. Stoudenmeier, 212. De Chastellux v. Fairfax, 499. De Corver v. Dolan, 113. Defelitz v. Pico, 343. Deford v. Mercer, 393. 473, 475. De Haven, Appeal of, 420, 464, 465. v. Londell, 423. De Jarnett v. Verner, 332. Delahy v. McConnell, 409. Delaplaine v. Lawrence, 358. Delany v. Knapp, 369. De Loach v. Bank, 354, 419. v. Bobbins, 272, 285. De La Montanya v. De La Mon- tanya, 50. De Meli v. De Meli, 50. Dement v. Thompson, 314. Demestre, Succession of, 426. Den v. Mulford, 258. v. Pilhower, 13. v. Zellers, 253, 461. Denman v. McGuire, 106. Dennerlein v. Dennerlein, 464. Dennis v. Moses, 334. — v. Winter, 398. Denny v. Mattoon, 499. Denton v. Noys, 90. Dentzler v. Waldin, 495. Denver v. Middough, 197. Deputron v. Young, 382, 387. Dequindre v. Williams, 319, 45S. Desplate v. St. Martin. 334. De Sepulvada v. Baugh, 419. Dewey v. Field, 476. v. Linscott, 384. v. Peeler, 269. v. Willoughby, 327. Devine v. Harkness, 361, 368, 486. Devlin v. Commonwealth, 155. Deyton v. Bell, 159, 247. Dial v. Freeman, 422. Diamond v. Turner, 408. Dick v. Foraker. 107. 183. Dickens v. Carr, 505. v. Crane, 387, 400. Dickens v. Long, 220. Uirkeii'ian v. Burgess, 327. Dickerson v. Talbot, 412. Dickinson v. Bowers, 281. v. Beyer, 457. - v. Collins, 203. v. Kinney, 422. Dickison v. Diekison, 181, 23S. Dickey v. Beatty, 491. Chicago, 137. Dikeman v. Wartek, 82. Dillard v. Iron Company, 50, 181. Dillon v. Hiller, 108. Dills v. Jasper, 8. Dingman v. Myers, 276. District v. District, 473. v. Goldman, 185. Dixon v. Doe, 420. Doan v. Baley, 271. Dobbins v. Bank, 286. Dodd v. Nilson, 458, 461. v. Templet on, 3.03. Doe v. Anderson, 70, 158. 238. v. Bowen, 72, 86, 158, 235, 443. v. Douglass, 506. v. Harter, 285. v. Henderson, 248. v. Ingersoll, 263. v. McKinnie, 44!). v. Rue, 375, 416. v. Smith, 359. Doheny v. Dynamite Company, 422. Donahue v. McNulty, 418. Donnebaum v. Tinsley, 405. Dooley v. Bell, 213. Doolittle v. Holton, 184, 186. Dore v. Dougherty, 185. Dorr v. Rohr, 140. Dorrance v. Raynsford, 38, ISO, 190, 215, 226, 235, 401. Dorsett v. Gerrard, 327. Douglass v. Insurance Company, 445. Whitney, 272. Dougherty v. Linthicum. 350. Doughtry v. Thweatt, 161, 234. Dow v. Blake, 200. Dowell v. Applegate, 197. Dower v. Johnson, 55. Downer v. Smith, 179. Downing v. linger, 212. Doyle v. Wade." 378. Drainage District, In re, 55. Drake v. Ogden, 146. v. llensliaw, 172. - v. Ireland, 187. 1 Iraper v. Bryson, 321. — v. Nixon. 263. Drawdy v. Litchfield. 272. 30 TABLE OF CASES. Drefahl v. Tuttle, 263, 289. Dresbach v. Stein, 5, 17, 459. Dry Goods Company v. Fuller, ISO, 185. Drysdale, Appeal of, 342, 362. Dubois v. McLean, 506. Dubuque v. Harrison, 10. Duckworth v. Vaughn, 369. Duell v. Pattee, 206. Dufou- v. Camfranc, 416, 484. Bugger v. Tayloe, 389. Dulaney v. Tilgham, 495. Dull v. Blum, 354. Dunagan v. Webster, 343. Duncan v. Gainev, 181, 481, 4S2, 484. v. Stewart. 150. - v. Veal, 222. Dunham v. Cox, 208. Dunlap v. Byers, 428, v. Cody. 81. Dunn v. Stevens, 343. Dunning v. Driver. 222. Durham v. Bostick, 343. v. Heaton, 259. Dunn v. Fish, 359. Duval v. Waters, 34, 208. Duprey v. Moran, 404. Durett v. Briggs, 289. v. Hulce, 204. Dutcher v. Hobbey, 188, 361, 479. Dwight v. Blackman, 364, 454. v. Lumber Company, 478. Dwark v. Moore, 422. Dyer v. Leach, 434. Dyke v. Wells, 174. E. Earle v. Earle, 142. Eason v. Sehettler, 208. Eastman v. Settler, 206. Eatman v. Eatman, 162. v. Linn, 446. Eaton v. White, 300, 379. Eberstein v. Oswalt, 250, 34S, 349. Eddy v. Coldwell, 263, 285. Edmonson v. Hooks, 419. Edney v. Edney, 462. Eads v. Stephens, 331. Edwards v. Baker, 246. v. Halbert, 259. v. Inula ham, 303. v. Moore, 231. v. Smith. 56. v. Tipton, 406. v. Toomer, 92, 445. v. Whited, 169. Egan v. Council v. 449. Eichoff, In re, ISO, 194. Eisenmenger v. Murphy, 172. Elam v. Donald. 361, 484, 4S6. Filet v. Paxon, 310. Filing v. Harrington, 484. Elliott v. Bastian, 167. v. Hart, 272. - v. Holbrook, 286. v. Knott, 280, 282, 313. — v. McCormack, 61, 104, 108, 123. v. Piersell, 44. v. Shuler, 18. Ellis v. Ellis, 481. v. Peck, 29. v. Railway Company, 496. Ellsworth v. Hall. 225. Elston v. Castor, 333. Eltzroth v. Ryan, 432. Elwood v. Northrup, 186, 237. Ely v. Tallman, 180. ♦ Embury v. Connor, 498. Emeriek v. Gilman, 266. Emerson v. Sansome, 422. Emery v. Royal, 184, 432. v. Vrooman, 385, 38S, 400. Emery County v. Burreson, 346. Emmert v. Thompson, 47S. Emmett v. Yandes, 27. Fndicott v. Penny, 34. England v. Garner, 77. English v. Woodman, 251. Fnsworth v. King, 423. Eppinger v. Robinson, 259. Erwin v. Garner, 422. Esselman v. Wells, 290. Fssig v. Lower, 106, 130. Essinger v. Murphy, 61, 172. Estes v. Alexander, 32. -, In re, 208 Ethel v. Nichols, 433. Ethridge v. Edwards, 290. Evans v. Ashby, 332, 354. v. Ashley, 419. v. Ball, 401. v. Caiman, 303, 313, 449. v. Ethridge. 264. v. Johnson, 196. v. Maurey, 450. v. Robberson, 321, 418. v. Snyder, IS. 245, 421, 442. v. Wilder, 406. Evers v. Watson, 386. Eversdon v. Mahew, 290. Everingham v. Braden, 404. Ewell v. Daggs, 29, 30, 31. Ewing v. Highby, 400, 40S. K\ parte Bennett, 42. v. Bigelow, 43. v. Coehn, 44. v. Grav, 44. TABLE OF CASES. 31 Exum v. Baker. 407. Eyerman v. Payne, 406. Fabel v. Boykin, 281. Fahey v. Mattu, 432. Fahlor v. Board, 503. Fairbanks v. Devtsreau, 343. Faison V. Johnson, 280. Falley v. Gribbing, 2:22. Fallon v. Schempf, 84. v. Worthington, 393, 473, 47G. Falls v. Wright, 46. 244, 388. Fambo v. Gantt, 310. Fanners' Bank v. Bank, 104, 108. Fanning v. Krapp, 239. Faris v. Durham. 200. Farley v. Lea, 207. Farquhar v. Toney, 325. Farrar v. Dean, 216, 222. Farrington v. Duval, 374. Farrior v. Houston, 311, 418. Faull v. Cooke, 303, 400, 449. Faust v. Haas, 368. Feikert v. \\ ilson, 114. Fell v. Young, 72, 158, 218, 401, 443. Feller v. Clark, 446. Felton v. Felton, 355. Ferguson v. Crawford, 91, 294. — v. Oliver, 59, 81, 83. v. Quinn, 259. v. Smith, 71. v. Teel, 429. v. Williams. 496. Felert v. Engle, 100. Ferrell v. Hales. 207. Ferrier v. Deutchman, 424. Ferris v. Hayes, 174. Fetterman v. Murphy, 373. Fideldy v. Diserens, 384. Fidler v. John, 208, 355. Field v. Bland. 477. v. Paulding. 265. Fifield v. Richardson, 272. Filkins v. O'Sullivan, 75. Finch v. Edmonson, 441. v. Sink, 42S. Finlayson v. Peterson, 497. Finley v. Gautt, 263. v. Robertson, 77, 238. v. Smith, 139. Finneran v. Leonard, 194. First National Bank, In re. 272. Fisher v. Bush. 471. v. Siekman, 235, 236, 475. Fischli v. Fischli, 192. Fisk v. Kellogg, 72, 158, 235, 443. Fitch v. Boyer, 429. Fitch v. Miller, 229, 231. v. Wlutbeck, 212, 222. Fite v. Doe. 351. v. Volmer, 125. Fitzpatrick v. Beal, 242. Fix v. Sissung, 100. Flandrow v. Hammond, 469. Fleming v. Durham, 466. v. Hutchison, 360, 361. — v. Johnson, 386. v. Powell, 405. Fletcher v. Holmes, 332. v. McGill, 436, 437. Flint v. Phipps, 357. Florentine v. Barton, 18. Floyd v. Harding, 206. Flury v. Grimes, 362. Flynn v. Railway Company, 84. Fogg v. Blair, 205. Foley v. Bitter, 208. v. Kane, 358. Follett V. Hall, 207. Folsom v. Carli, 311. Foltz v. Wirt, 205. Foot v. Scwall, 152. Foote v. Richmond, 82. Forbes v. Darling, 271. v. Halsey, 454. v. Hyde, 119. Ford v. Walsworth, 223. Fore v. McKenzie, 469. Foree v. Stubbs, 458. Forman v. Carter. 44. v. Hunt, 6, 14, 17, 258. Forrest v. Railway Company, 79. Forster v. Forster, 503. Foster v. Birch, 319. - v. Clark, 492. v. Mabie, 331. Foss v. Witham, 276. Foulk v. Colburn, 416. Fowler v. Frebein, 208. v. Jenkins, 432. v. Krutz, 355. v. Lewis, 445. v. Poor, 259. v. Simpson, 181. Fowble v. Rayberg, 40(>. Fsankel v. Salter field, 4S, 149, 181. Franklin v. Kelly, 43. v. Merida, 272. Franks v. Lockey, 44. France v. Haynes, 474. Frances v. Wells. 142. Frazier v. Douglass, 82. v. Moore. 414. v. Pankey, 72, 158, 235. 241. v. Steenrod, 219, 227, 236, 44: v. Zlios, 335. 32 TABLE OF CASES. Frederick v. Pacquette, 210. Freeman v. Alderson, 95, 152. v. Thompson, 92. ■ v. Watkins, 32. Freiburg v. Isabell, 366. French v. Edwards, 203, 307. v. Garnet, 491. v. Hoyt, 72, 158, 235, 443. Fretwell v. Morrow, 406. Frevert v. Swift, 139, 451. Freydendall v. Baldwin, 199, 450. Fridley v. Sheetz, 459. Frink v. Roe, 325. Frisk v. Reigleman, 107, 110, 122. Fritts v. Camp, 164. Frizzle v. Veach, 408. Frost v. Atwood, 458, 481, 482. ■ v. Bank, 201, 263, 289, 294 Fryer v. Rockefeller, 462. Fullerton v. Seifer, 355. Furgeson v. Jones, 48, 107, 149, 181, 183, 194, 196, 201. Fulton v. Moore, 32. Furnam v. Dewell, 264. Furnish v. Austin, 226. Furtli v. Mortgage Company, 156, 226, 233. G. Gage v. Schroeder, 161. Gager v. Henry, 157, 233, 252, 318, 397. Gaines v. Barr, 139. v. De La Croix, 310. v. Kennedy, 481. v. New Orleans, 380. Galbreath v. Dilday, 490. - v. Doe, 351. Galbraith v. Howard, 475. ■ v. Tracy, 362. Gall v. Tyberger, 27. Gallaugher v. Hebren, 200. Galpin v. Fishburn, 277. v. Page, 49, 52, 69, 106, 107, 180, 183, 202. 291. 293, 431. Galusha v. Butterfreld, 142. Gannett v. Leonard? 506. Gantley v. Ewing, 14, 332. Gardner v. Haney, 494. v. Kelso. '375. 410. v. Railway Company, 263, 285, 286, 437. v. Sisk, 332. 476. Gathwright v. Hazard, 337. Gay v. Grant, 77. v. Smith, 292. Gaynor v. Ulewitt, 276. Gebb v. Howell, 489. Gelstrop v. Moore, 218, 245. Gentry v. Calahan, 422. George v. Middough, 2b7. ■ v. Watson, 372. Gerecke v. Campbell, 263, 285. Gibbs v. Mitchell, 406. v. Neely, 290, 326, 332. v. Shaw, 15S, 2oo, 443. Gibson v. Bank, 406. ■ v. Burgess, 50. v. Herriott, 362, 364. v. Lyon, 201, 340. — v. Powers, 84. v. Railway Company, 28. v. Roll, 157, 234, 240, 243, 443. Giddings v. Day, 419. - V. Smith, 184. Steele, 154, 167, 247. Garlick v. Dunn. 142. Cnrner v. Tucker, 493. Garrett v. Wagner, 422. (.arret tee v. Poplain, 201, 291, 357. Garth v. McCampbell, 307. Gary v. Aid Association, 49. Garvin v. Hnll. 357, Gaskell v. Aldrich, 331. Gilbert v. Carter, 368. • v. Cooley, 479. — v. Hoffman, 361, 368, 450, 486. Giles v. Pratt, 374. Gillett v. Truax, 146. Gillespie v. Switzer, 263, 285. Gilman V. Contra Costa County, 266. v. Tucker, 498, 499, 503. Gilmer v. Bird, 278. Givens v. Campbell, 287. Givin v. Latimer, 280. Gleason v. Hill, 358. Glenn v. Clapp, 465. Glover v. Moore, 174. — v. Ruffin, 414. Goble v. O'Connor, 361, 368, 450, 486. Godbold v. Lambert, 273. Goddard v. Harbour, 66, 79. Godell v. Blumer, 206. Godfrey, Estate of, 154. v. Moore,* 419. Goforth v. Langworthy, 136. 245. Goldey v. Morning News. 60. Goldtree V. McAllister, 163, 330. Good v. Norley, 236. Goode v. Crow, 458. Goodbar v. Daniel, 378, 459, 4S3. Goodkind v. Bartlett, 181, 438. Goodman v. Winter, 393, 473. Goodnow v. Hill, 174. Goodrich v. Pendleton, 179. Goodwin v. Sims, 72, 156, 181, 215, 216, 231, 233. TABLE OF CASES. 33 Gordon v. Camp, 296. v. O'Neil, 356. v. Rixy, 206. v. San Diego, 496. Gorham v. Farson, 206. v. Gale, 406. v. Wing, 409. Gorman v. People, 55, 265. Goss v. Fowler, 409. v. Meadors, 403, 404. Gossett v. Kent, 418. Gossom v. Donaldson, 202. Goudy v. Hall, 292. Gould v. Sternberg, 187, 202, 291, 21)2. v. McFall, 174. Goulding v. Clark, 432. Gowan v. Jones, 392. Gowdy v. Sanders, 296. Gowen v. Conlow, 201, 291. Grace v. Garnet t, 449. Graham v. Florida L. & M. Com- pany, 458. ■ v. Lynn, 277. v. Culver, 197. v. O'Brien, 78, 135. v. Ringo, 44. Granger v. Clark, 194. Grant v. Lloyd, 488. Grantie v. Bosecrance, 87. Gray v. Brignardello, 291. — v. Crockett, 476. , Ex parte, 44, 194. v. Stewart. 31. V. Wolf, 239. Grayson v. Wedel, 366. Green v. Abraham, 495, 496. v. Clark, 408. — ■ v. Green, 49, 87. v. Holt, 364, 401. V. Kempe, 29. Greene v. Holt, 344, 442. Greenough v. Small, 403. Greenwood v. Murray, 98. Greer v. Anderson, 392. v. Wintersmith, 423, 457. Gregory v. Bartlett, 479, 480. v. McPherson, 212. v. People, 4. V.). v. Stetson, 61. v. Tabor, 221. v. Tingley, 32. 3S4, 467. Gregson v. Tuson, 456. Grevemberg v. Bradford, 458. Gridley v. Phillips, 407, 489. Griel v. Randolph, 468. Grier, Appeal of, 213. Griffin v. Cunningham, 497. v. Lacourse, 289, 439. Griffin V. Railway Company. L87, am. v. Thompson, 14. Griffith v. Fowler, 9, 13. 94, 341, 457. v. Harvester Company, 21, 49, 95, id-. 152, 272. v. Judge, 368. V. It ley, 354. Grignon v. Astor, 18, 45, 229, 231, 234, 386. Grimes v. Doe, 494. v. Norris, 179. Griswold v. Stuart. 167. - v. Stoughton, 358, 436. v. Sundback, 325. Groff v. Jones, 336, 340. Groner v. Smith, 416. Gross v. Washington, 341. Grosvenor v. Gold, 315. Grouch v. Martin, 445. Grunsenmenger v. Logansport, 185. Guckenheimer v. Angevine, 361. Guilford v. Love, 429. Guise v. Early, 134. Gunn v. Slaughter, 355. Gunter v. Cobb, 357. Guthrie v. Howard, 174. Gunzler, In re, 408. Guy v. Pierson, 226. Guynn v. MeCauley, 211, 458. Gw'inn v. Williams. 369, 372. H. Hackett v. Lathrop, 107. Hackley v. Swigert, 315. Haddington v. Philadelphia, 286. Hagerman v. Johnson. 34. Hagerty v. Wilber, 315. Hahn v. Kelly, 149, 181, 194. Haines v. Lindsay. 406. Hall v. Hamlin, 450. v. Lachmond, 270. — • v. Thayer, 139, 451. - v. Woodman, 154. 247. v. Yoell, 409. Halleek v. Guy, 3. 6, 18, 32, 400. v. Moss, 24:. Halsey v. Jones, 45S. 471. 475, 481. Ham v. Peterson, 384, 3S8. Hamer v. Cook, 400. Hamblen v. Hamblen, 313. Hamblin v. Wernecke. 32, 362, 364. Hamiel v. Donnelly, 225. 399. Hamilton v. Dunn, 10. 23. v. Harvey, 354. V. Lock hart. 153, HI 7. v. Mining Company, 457. v. Pleasants. 459. v. Quimby, 400. 34 TABLE OF CASES. Hamilton v. Winona Bridge Com- pany, 399. Hamman v. Mink, 200, 417. Hammond v. Cailleaud, 465, 468. v. Davenport, 105. v. Hopkins, 362. Hammsmith v. Espey, 457, 400. Hancock v. Flynn, 187. Hand v. Grant, 459. Hanika, Appeal of, 276, 278. Hanna v. Morrow, 100. v. Russell, 271. Hancock v. Titus, 342. Handy v. Xoonan, 475, 477. Hanks v. Xeal, 320, 323, 386. Hannah v. Chase, 8. Hannel v. Smith, 419. Hansford v. Hansford, 271. Hanson v. Hanson, 426. Hannnm v. Day, 212. Harbison v. Timmons. 467, 468. Hardester v. Sharretts, 127, 134. Hardin v. Cheek, 418. v. Lee, 445. Harding v. People, 37. Hardware Company v. Building Company, 357. Hardy v. Beatty, 60, 108, 112, 149, 152. v. Harbin, 486. Hare v. Hall, 393. Hargadine v. Van Horn, 445. Hargis v. Morse, 262. Hargraves v. Meneken, 205, 422, 423, 459. Harlan, Estate of, 179. v. Harlan, 269, 272, 416. Harman v. Hahn, 313. v. May, 203. v. Moore, 425, 427. Harmon v. Auditor, 192, 197. Harness v. Cravens, 106, 107, 431. Harnock v. Harlow, 187. Harrington v. O'Reilly, 280. Harris v. Claflin, 115, 445. v. Lester, 153, 259. v. Shafer, 354. v. Watson, 481, 487. Harrison v. Beard, 116. - v. Harrison, 1, 2, 158, 226, 497, 502. v. Ilger, 12, 481. v. McHenry, 327, 362, 365. v. Maxwell, 415. v. Shanks, 457, 470, 484. v. Simons, 278. v. Stipp, 424. HaTshey v. Blackmar, 201. 294. Tbnt v. Burch. 1, 3. v. Henderson, 497. 503. Harteneaux v. Eastman, 300, 397. Hartley v. Croze, 252, 255, 261, 324, 402, 447, 455. Hartshorn v. Portroff, 393. Hasbrouck v. Milwaukee, 495. Haskins v. Helm, 273. Wallet, 268, 415. Hassan v. Wilcox, 38, 52, 95, 196. Hastings v. Johnson, 268, 337. Bryant, 203, 286, 296. Hatch v. Ferguson, 51. Hatcher v. Briggs, 458, 481. Haug v. Primeau, 211, 256. Havens v. Sherman, 243. Hausman v. Burnham, 59. Hawley v. Simmons, 490. , In re, 186, 433. Havens v. Drake, 70, 130. v. Pierce, 89. Hawkins v. Hawkins, 70, 158, 235, 380, 443. - v. Hughes, 21. Miller, 470, 483. Hawes v. Clark, 240. v. Rucker, 303. Hayden v. Dunlap, 322. v. Hayden, 486. Hayes, Appeal of, 8. , Estate of, 361, 368, 486. v. Mining Company, 404. Hays v. Miller, 277. v. Res?er, 206. Thomas, 279. Hay v. McNealy, 221, 441. Havmond v. Camden. 478. Haynes v. Meeks, 179, 220, 481. - v. Shaw, 171. Sheriff, 307. Hay ward v. Cain, 416. Hazel v. Lyden, 393, 473, 476. Hazleton v. Bogardus, 227. Hazzard v. Benton, 331. Martin, 184. Head v. Daniell, ISO. v. James, 419. Headen v. Oubre, 474. Heagle v. Wheeland, 139. Hearn v. Camp. 179. Heath v. Layne, 156, 233, 443. Wells. 154, 247. Hebel v. Insurance Company, 100. Heberling v. Jaggar, 341, 435. Hebert v. Wines. 206. Heck v. Martin. 181, 185, 432. Heckman V. Adams. 45. TTedces v. Mace, 259. 428. Hefferlin v. Sinsenderfer, 332. Heidritter v. Oil Company, 97. 196. Heinlen v. Helbron, 107. Helmer v. Rebm, 320. TABLE OF CASES. 35 Helmes v. Chadbourne, 61, 86, 238, 242. . v. Lovi, 24:;. Hemmer v. Wolfer, 75, 242. Henderson v. Henderson, 208. v. Herrod, 383, 392, 412. v. Overton, 457, 459, 469, 484. v. Thornton, 199. v. Trimmier, 303. Hendrix v. Nesbitt, 163. Henry v. Keys, 382. v. McClellan, 476. v. McKerlie, 18, 389, 391, 417. Herbert v. Herbert, 506. v. Mayer, 343. Herdman v. Short, 240. Hernandes v. Hawkins, 144. v. James, 142. Herrick v. Animerman, 248, 419. V. Butler, 181. v. Carpenter, 397. v. Davis, 321. v. Graves, 416, 424. v. Morrill, 419. Herriman, Heirs of, 156. — ■ v. Janney, 233. Herring v. Chambers, 130, 181. Hersey v. Walsh. 180, 427. Hershey v. Hershey, 23. v. Latham, 14. Hervey v. Edmunds, 44. Hess v. Rader, 260. Hewitt v. Durant, 250. Hexter v. Schneider, 459. Hibbard v. Smith, 206, 271, 272, 376, 423. Hicks v. Perry, 358. Hickson v. Rucker, 459. Higgins v. Bordagus, 413. v. Paltzer, 174. High v. Nelms, 353. Hildrith v. Mclntire, 55. v. Turner, 32. v. Thompson, 281. Hiligsberg, Succession of, 326, 332. Hill v. Bain, 193. v. Billingsly, 482. v. Goodrich, 81. v. Hill, 467, 468. v. Newman, 285. v. Sunderland, 499. ■ v. Whitfield. 368. v. Woodward. 429. Hilton. Appeal of, 220. v. Cachman, 180. Hindman v. O'Connor, 364. ■ v. Piper, 505, 506. Hind v. Scott, 2S5, 375, 415. Hitchcock v. Caruthers, 470, 472, 483. v. Wharf Company, 342. Hobart v. Hobart, 143. v. Heyle, 319. v. Upton, 327. Hobbs v. Beavers, 327. Hobby V. Bunch, 59, 67, 197. Hobson v. Ewan, 218, 229. — v. McCambridge, 272, 277, 357. Hockman v. Hockman, 207. Hodge v. Fabian, 216, 251. v. Mitchell, 280. Hodges v. White, 280. Hoffman v. Band, 154. ■ v. Buschman, 358, 359. ■ v. Harrington, 362, 363, 454. v. Strohecker, 290, 373. Hogg v. Link, 200. Hogle v. Hogle, 235. Hoitt v. Holcomb, 450. Holcomb V. Boynton, 473. Holcombe v. Loudermilk, 472, 4S3.. Holden v. Vaughn, 356. Holdsworth v. Shannon, 357. Holliday v. Bruner, 203. Hollinger v. Reeme, 199, 450. Hollingsworth v. Bagley, 262. V. Stone, 185. Hollister v. Vanderlin, 355. Holly v. Bass, 22. Holman V. Bank, 506. v. Gill, 376, 414, 415. Holmes v. Beal, 452. ■ v. Jordan, 269. - v. Mclndoe, 283, 296. v. Taylor, 330, 448. Holston v. Needles, 416. Holt v. Lynch, 281. V. Thacker, 167. Holtzinger v. Edwards, 459, 460. Hoi yoke V. Hoskins, 179. Hone v. Spivv. 266. Hood, Estate of, 251. Succession of, 335. Hooper v. Caruthers, 280, 304, 449. ■ v. Castetter, 457, 464. Hoover v. Ivinsey Plow Company, 172. Hope v. Blair. 43, 48, 187, 194. Hopkins v. Meir, 165. v. Mason, 497. Horan v. Weinberger, 101. Hord v. Colbert, 459. Horgan v. Lyons, 314. Horn v. James, 423. Home v. Bank, 44. v. Nugent, 469. 36 TABLE OF CASES. Horsey v. Knowles. 314, 315. Horsley v. Gath, 207. Hoi-ton v. Howard. 139, 149. 451. Hoskins v. Helm. 288. Hotehkiss v. Cutting, 380. Houch v. Lasher, 164. Hough v. Canby, To. House v. Robertson, 355. Houston v. Ayeock, 382. v. Childers. 280. v. Woodbury Pro. Dist., 38. Howard v. Lee. 417. v. North. 174, 301, 321, 330, 415, 416, 470, 471, 483, 484. v. Turner, 28. Howbert v. Heyle, 227, 399. Howe v. McGivern, 343. Howell v. Eldridge, 281. v. Manufacturing Company, 438. v. Mills, 43. v. Tyler, 362. Hunter v. Lester, 75. v. Roach, 269. Huntington v. Charlotte, 180. v. Meyer, 207. Hurt v. Stull, 2. Husbands v. Jones, 23. Huse v. Den. 245, 4S1. Hatchings v. Ebeler, 423. Hutchins v. Cassidy, 310. v. Doe, 424. Howland v. Knox. 208. Hoyt v. Thompson, 353. v. Sprague. 505. Huber v. Pickler, 289, 373, 439. Hubermann v. Evans, 252, 316, 324, 402, 447. Huckins v. Kapf, 201, 291. Hudepohl v. Water Company, 321, 358, 369. Hudgens v. Jackson. 320, 323. Hudgin v. Hudgin, 478, 481, 482. Hudson v. Cable, IS. Huff v. Morton, 204, 289. Huffman v. Gaines, 321, 326, 393, 474. Hughes v. Cummings, ISO, 427. v. Dice, 416. v. Lacock, 206. v. Streeter, 419. v. Swope, 383. ■ v. Wait, 314. v. Wilkins. 283. Hugo v. Miller, 254. Hiding v. Railway & Improvement Company, 40. Hull v. Hull, 173. 47S. 481, 482. - v. Mallory. 148. Humphery v. Beeson, 414. v.'Hi+*. 314. v. Wade. 457, 461. Hunt v. Gregg, 34. v. Hunt. 43. v. Louks, 269. 376. v. Swayze, 296. v. Townshend, 342, 422. Hunter v. Hatton. 226. , In re, 70, 93, 157, 226, 236. Hutchinson v. Shelly, 235. Kelly, 420. Hutton v. Laws, 251. Williams. 3, 6. Hyatt v. James, 210. Hyde v. Heller, 156, 233. v. Supervisors, 458. Ilsley v. Harris, 271. Ingalls v. Rowell, 360, 368. Ingersoll v. Mangam, 86. Ingle v. McCurry, 92, 445. Inglis v. Trustees. 351. Ingraham v. Champion, 273, 285. Ingram v. Belk, 2S5. Insley v. United States, 198. Insurance Company v. Ragley. 334. v. Bangs, 61. • v. Bank, 8. ■ v. Brown, 358. v. Cottrell, 3, 386. v. Decker, 84. ■ v. Goodwin, 10, 23. ■ v. Grim. 351. v. Hanna, 88. ■ v. Loomis. ?A. v. Middleport, 478. v. Page, 76. v. Pappe, 143. - v. Ritchie, 308. v. Sampson, 412. v. Vanlue, 263, 289. Investment Company v. Beadle County, 458. v. Ray, 102. Irrigation Company v. Middough, 473. Iron Company v. Fullenweider, 393, 473. 475. 482. - v. Rarig. 192. v. Railway Company. 355. Irvin v. Ferguson, 267. 357. Succession of, 55. Isaac v. Swift. 203. [saacs v. Gearhart, 339. [sabel v. Iron Cliff Company, 124. Isert v. Davis. 237. Israel v. Arthur, 123. 497. TABLE OF CASES. 37 J. Jackson v. Bowne, 479. v. Catlin, 34. v. Crawfords, 223, 231. v. Davis, 406. v. Dement, 351. v. Diekerson, 423. v. McGruder, 320, 396. v. Hoi brook, 208. v. Hopkins, 352. v. Houston, 27. v. .Tones, 414. v. Jouchert, 27. v. Lahee, 315. v. .uudeling, 402. v. Rosevlet, 419. - v. State, 106. v. Summerville, 361. Jacobs. Appeal of, 260, 388, 39S. v. Smith. 422. v. Watson, 341. Jacobey, Appeal of, 208. James v. Mayer, 211, 369, 458. James v. Smith, 252, 256. Jamison v. Hendricks, 435. v. Weaver, 182. Janney v. Spedden, 109. Jarboe v. Colvin, 260. v. Hall, 313. Jarvis v. Russick, 299. Jayne v. Boisgerard, 482. Jellison v. Halloran, 47'.). Jelks v. Barrett, 493. Jenkins v. Cropton, 68, 242. v. Harris, 34. v. Young, 72, 158, 226, 443. Jenners v. Doe, 330. Jennings v. Kee, 475. - v. Simpson, 167. Jerome v. Williams, 305. Jett v. Shinn, 272. Jewett v. Guyer, 314. — v. Jewett, 411. v. Land Company, 181, 428. - v. Tomlinson, 404. Johns v. Frick, 459. — • Tn re. 226. v. Pattee, 200. v. Tiers. 219, 245. Johnson v. Babcock, 345. v. Baker, 262. v. Beazley, 150, 155, 251. v. Board, 494, 496. 497. 503. v. Cobb, 72, 158, 235. 443. v. Cooper, 391, 473. v. Elkins. 296. — v. Gage, 92, 445. — v. Gregory, 66. — v. Hines, 410. Johnson v. Insurance Company, 2s. 31. v. Jones. 55. v. Johnson, 242. v. Laybourn, 462. v. Lindsay, 19. — ■ v. MacCoy, 76. — v. Moore, 361, 486. v. Mining Company, 424. — v. Pryor, 365. — v. Richardson, 495, 500. Johnston v. Jones, 194. — v. Lemond, 206. Jolly v. Foltz, 185. Jones v. Association, 359. v. Blumenstein, 457, 4C0, 470. 482. v. Caswell, 360. v. (lark, 369. v. Davenport, 146. v. Davis, 285. v. Dewey, 361. v. Edwards, 429. v. Fletcher, 206. v. Henry, 470. v. Howard, 315. v. Hunt. 432. v. Iron Company, 277. 477, - v. Jones, 81, 100. - v. Napier, L53. - v. Perry, 499, 506. - v. Pratt, 357. - v. Railway Company, 361. - v. Smith, 484. - v. Taylor, 417. - V. Vert, 187, 192. v. Warnoek, 461. Jordan v. Bradshaw, 415, 418. v. Petty. 277. v. Poillion, 466. - v. Sayre, 1SS. v. Terry, 406. Josslyn v. Cougrhlin, 158, 235. Journeay v. Gibson, 495. Jouet v. Mortimer, 405. Judge of Probate v. Toothhackei 317. Julian v. Beal, 206, 470, 483. Kahn v. Kuhn, 271. Kane v. McCowan, 296, 445. Karn v. Iron Company, 386. Kains v. Olney, 473. Karnes v. Alexander, 314. Lean v. Newell. 331. Kearney, Ex parte, 432. v. Vaughn, 28. 38 TABLE OF CASES. Keefer v. Frace, 491. Keeler v. Stead. 139. Keene v. Sallenbeck, 201. Keith v. Keith, 415. Kell v. Worden. 472. Kellar v. Blanchard, 406. Kellogg v. Wilson, 300. v. Gant, 279. Kelly v. Green, 418. — v. Duff. 479. v. Hen-all. 303. v. Insurance Company, 49. v. Kelly, 180, 478. v. Morrell, 399, 433. Kendall v. Clark, 343. ■ v. Powers. 343. Kendrick v. Wheeler, 157, 374, 471, 475, 481. Kennedy v. Baker, 259. v. Clayton, 331. V. Gaines, 157, 236. Kenney v. Green, 59. v. Greer, 180, 429. Kent v. Mansel. 156, 221, 233. Kerns v. Graves. 287. Kerchival v. Lanier, 460. Kerr v. Commonwealth, 274. Kertehem v. George, 217, 455. — v. McCarley, 343. Ketchum v. Craigh, 410. Keyes v. Cyrus, 343. Keyser, Appeal of, 310. v. Guggenheimer, 179. Kibby v. Chitwood, 505, 506. Kile v. Yellowhead, 393. Kilgore v. Beck, 372. Kimball v. Castagnio, 64. V. Fisk, 433. Kimmerle v. Railway Company, 62. Kincaid v. Frog. 74. v. Tutt, 357, 379. Kindell v. Frazer, 393. King v. Brown, 479. v. Burdett, 168. v. Cabanis, 375. v. Cushman, 370. v. Duke, 376. v. Green, 142. — ■ v. Gunnison, 32. v. Nunn, 251. v. Pratt, 301. Kingman v. Paulson, 174, 434. Kingsbury v. Love, 245. — v. Powers. 427. V. Wild. 417. Kingsland v. Murray, 221. Kingsley v. Jordan. 4 77. Kinaley v. Stead, 278. Kingsport v. Boynton, 206. v. Rawson, 142. Kingman v. Glover, 423. v. Paulson, 427. Kinney v. Knoebel, 340, 484, 485. Kirk v. Cassody, 343. v. Kirk, 300, 377. Kirkman, Ex parte, 401. Kipp v. Bullard, 343. ■ v. Cook, 164. — v. Dawson. 446. v. Frenhold, 446, 452. Kleimann v. Gieselman, 478. Klein v. New Orleans, 342. Knight v. Morrison. 298. Knott v. Jarboe, 73. v. Taylor, 167. Knotts v. Stearns, 373. Knowles v. Blodgett. 351. Koch v. Bridges, 448. v. Railway Company, 277. Koehler v. Ball, 19, 379, 384, 387, 388. v. Hughes, 47S. Kostenbader v. Spotts, 459, 466. Kraemer v. Rebman, 23. v. Wellendorff, 29. King v. Davis. 66. Kuntz v. Sumpter, 38, 40. Kurtz v. Carr, 192. Kruse v. Wilson. 416. Kyle v. Evans, 264. — ■ v. Kyle, 73. Lackey v. Pool. 476. Ladd v. Kimball, 100. v. Weiskoff, 98. Lafferty v. Higgins, 419. Laggar v. Loan Association. 363, 485. Lamb v. Sherman, 404, 415, 493. Lambert v. Kinney, 343. Lamaster v. Keeler, 265, 380. Lancaster v. Wilson, 260, 3S8, 450. v. Viera, 423. Lance v. Gorman. 457. Land & Cattle Company v. .Print, 22. Land Company v. Kurtz, 252, 310, 318. Land & Water Company v. Boskin, 108. Land Company v. Walker. 357, 436. Landis v. Hamilton, 189. Landon v. Townshend. 49, 1S9. Landrue v. Lund, 110, 113. Lane v. Dorman, 506. — v. Innes, 63. v. Nelson, 495. 497, 499. Laney v. Garbee, <> s . 181. v. Sweeney, 1S1. TABLE OF CASES. 39 Lang, Ex parte, 27, Langdon v. Lockett, 315. Langley v. Jones, 313, 314. Langyher v. Patterson, 260, 393. Lansing v. Railway Company, 54. Lantz v. Moffett, 428. Larimer v. Knoyle. 45, 105. v. Wallace, 252, 256. Latimer v. Railway Company, 171 V. Rogers, 393. v. Wharton, 463. Laughlin v. Peckham, 142. Law v. Grammes, 181, 430, 438. Lawrence v. Belger, 206. Laws v. Thompson, 469. Lawson v. Bolt, 5. v. .Moorman, 105, 120. Eawry v. Ellis, 449. Leard, Estate of, 5, 459, 4G4, 405. Learned v. Geer, 328. Leary's Case, 355. Lecoutonr v. Peters, 354. Lee v. Crossna, 269. v. Enos, 422. v. Fox, 75. v. Gardine, 169. v. Mason, 359. v. Newland, 420. v. Patten, 428. Leedom v. Lambaert, 427. Leib v. Lichtenstein, 174. v. Ludlow, 485. Leger v. Doyle, 404. Leggett v. Hunter, 506. Le Grange v. Ward. 144. Lehner v. Loomis, 357. Leihig v. Rawson, 272. Leitner v. Lewis, 7L Leland v. Wilson, 405. Lemon v. Craddock, 406. Lemonds v. Stratton, 475. Le Moyne v. Hardin, 468. Lent v. Tillson, 36, 40. Leonard v. Brewer, 286. v. Broughton, 205. v. Sparks, 185, 432. Lepper v. Mover, 350. Leshey v. Gardner, 296, 375, 403. Lessley v. Phipps, 343. Leuders v. Thomas, 237, 457, 458. Levan v. Milholland, 259, 276. Levett v. Church, 292. v. Smith, 296. Levy v. Lumber Company, 432. ■ — v. Martin, 481. v. Sherman, 101. Lewark v. Carter, 435. Lewis v. Bartlett, 296. v. Cook, 422. Lewis v. Morrow, 27::, > - v. Owen, 492. v. Taylor, 371. - v. Webb, 499. v. Whittcn, 358. Ligare v. Railway Company, 110, ] 13. Lillibridge v. Tergent, 479. Lindley v. O'Reilly, 50, 58, 17:.. Lindsay v. Cooper, 378, 457, 469, 470. v. JafTrey, 145. Linenwebber v. Brown, 19, 387. Link v. Council, 2s:,. Linnian v. Riggins, 231, 369, 464. Lionberger v. Baker. 422. Lipscom v. Postell, 193. Lippeneott v. Peerenboom, 206. Liss v. Wilcoxen, 185. Litchfield v. Cudworth, 338. Little v. Sinnett, 432. Littleton v. Smith. 427. Livingston v. Cochran, 360. v. Prosseus, 351. Lloyd v. Anglin, 325. v. Malone, 217, 368. Loan & Trust Company v. KaulT- man, 163. Loekwood v. Bigelow, 311. v. Sturdevant, 338. Lofland v. Ewing, 406. Logan v. Hall, 205. v. Pierce, 405. Logsdon v. Spivey, 315. Long v. Dixon, 27. v. Burnett, 185, 210, 215, 219. v. Fife, 114, 116. v. Hall, 314. v. Long, 216, 218. v. O'Fallon, 374. v. Perrine, 11. v. Waring, 457, 459. Longfellow v. Quinby, 375. Longworth v. Goforth, 477. Loomis v. Riley, 414. Lorillard v. Clyde, 197. Loudermilk v. Corpenning, 448. Lounsbury v. Purdy, 206," 342. Love v. Cherry, 436. Lovegrove v. Brown, 276. Lovelace v. Webb, 378, 469. Lovell v. Sabine, 84. Lovejoy v. Albee, 44. Lovett v. Morey. 362. Lowe v. Rawlins, 457, 459. Lowenstein v. Canuth, 277. Lowry v. Fisher, 315. Loyd v. Loyd, 356. 40 TABLE OF CASES. Ludeman v. Hirth, 303, 305, 313. Ludlow v. Park, 344. v. Wade, 308. Lum v. Reed, 323. Lumber Company v. Allen, 45. v. Bank, 358. v. .Hotel Company, 303, 312. v. Park, 13G. v. Phillips, 161. Lumpkins v. Johnson, 12, 381. Lurton v. Rodgers, 357, 436. Lutz v. Kelly, 49, 95. Lydiard v. Chute, 40, 108. Lyle v. Palmer, 479. Lynch v. Baxter, G, 230, 233, 276, 443. Lynch v. Earle, 313. — v. Kelly. 278, 397. v. Tunnell, 169. Lynde v. Melrose, 458. Lyne v. Sandford, 72, 156, 186, 233. Lyon v. Lyon, 364. V. Phillips, 27, 28. v. Bobbins, 208. v. Buss, 305. v. Sanford, 189. v. Vanatta, 226, 236, 240. Lyons v. Hamner, 156, 215, 226, 259, 443. v. McCurdy, 441. V. Boss, 287. Lytle v. Lytle, 305. Lyton v. Baird, 333. M. Maeauley v. Smith, 206. Mace v. Dutton, 274. Macey v. Raymond, 411. v. Stark, 251. Macgill v. Hyatt, 221. Mackie v. Cairns, 199. Maddox v. Sullivan, 321. Magruder v. Bank, 174. Maguire v. Henry, 497. Maina v. Elliott, 369, 375. Mahan v. Beeve, 491. Mallett v. Mining Company, 429. Malloy v. Batcheller. 278. * Maloney v. Dewey, 187. v. 11 < nan, 197. v. Parham, 174. Malmgean v. Phinney, 133. Mann v. Reed, 270. Mannliart v. Soderstrom, 56. Manning v. Dove. 313. v. Heady, 114, 122. Manufacturing Company v. Beyer, 48, 484. , In re, 139. Mansfield v. Gregory, 205, 422. Manson v. Duncason, 434. Maple v. Kusart, 393, 437, 473, 475, 476. V. Nelson, 332. Marbury v. Madison, 413. Marion Co. v. Railway Company, 500. F J Markham v. O'Connor, 476. Markland v. Crump, 422. Maroney v. Boyle, 377. Marquis v. Davis, 231, 253, 319. Marshall v. Greenfield, 419. ■ v. Green, 336. v. Bavisies, 142. Marston v. Williams, 206. Marrow v. Brinkley, 464. Martin v. Bank, 281. - v. Beeson, 415. Blight, 360. - v. Board, 413. - v. Bonsach, 416, 448. - v. Cobb, 59. - v. Davis, 315. - v. Hodge, 361, 486. - v. Kelly, 8. - v. Martin, 423. - v. Neal, 443. - v. Pace, 351. - v. Bice, 278. - v. Bobinson, 372. - v. Boulett, 361. - v. Williams, 153. Williamson, 218. Marvin v. Schilling, 228 Mason v. Alexander, 83. v. Barnard, 8. v. Ham, 411. v. Osgood, 3, 6. v. Vance, 290. v. Wait, 157. ■ v. White, 354, 459. Massie v. Brady, 369, 458, v. Donaldson, 70. Masters v. Bienker, 433. Mastin v. Gray, 201, 294. Mather v. Knox, 393. Matson v. Swenson, 433. Matthews v. Clifton, 408. - v. Eddy, 3S2. v. Matthews, 165. Maul v. Hellman, 3, 32, 384, 467. Maurr v. Parrish. 229, 319. Maverick v. Floris, 285. Mavity v. Eastridge, 283. Maxwell, Ex parte, 319. v. Goetchins, 499. — v. Grace, 498. — v. Stewart. :.'J. TABLE OF CASES. 41 May v. Logan County, 399. v. Marks, 233. Mayers v. Carter, 448. Maynard v. Cocke, 381. Mays v. Dooley, 101. — v. Rogers, 222. V. Wherry, 359. Mayor v. Horn, 499. v. Huff, 327. McAdow v. Black, 459. McAfee v. Reynolds, 203, 207, 30G. McAllister* v. Lynch, 406. McAlpine v. Tourtelotte, 341. McAnulty v. McClay, 214. McArthur v. Carrie, 310. v. Dane, 141. v. Oliver, 422, 457. McBain v. McBain, 78, 135, 3S1, 412. McBernice v. Seaton, 189. McBride v. Langworthy, 293. - v. State, 161. MeCahan v. Elliott, 286. McCahill v. Hamilton, 459. McCall v. Rickarby, 286, 437. McCampbell v. Durst, 400. McCarter V. Finch, 467. v. Weil, 385. McCartney v. King, 483. McCaskey v. Graff, 361, 450, 486. McCauley v. Harvey, 159, 231. McClanahan v. West, 180, 181, 429, 450, 475. McClaskv, Tn re, 143. v. Wingfield, 169. McClay v. Foxworthy, 156. v. Engelhart, 408. McClellan v. Solomon, 207. McClure v. Logan, 289. v. McClure, 420. McComb v. Gilkey, 505. McConnell v. Day, 181, 184. — v. People, 437, 476. McCormick v. Edwards, 45S. — v. McClure, 201, 291. v. Meason, 420. v. Paddock, 117, 167. v. Railway Company, 82. McCowan v. Foster, 369. McCracken v. Adler, 343. v. Flanagan, 110, 113, 201, 262, 294, 431. v. Kuhn, 5. McDade v. Burch, 251. McDaniel v. Correll, 497. McDonald v. Cooper, 113, 114. v. Dickson, 287. v. Falvey, 276. v. Granfeld, 303. v. Leewright, 194. . v. Simcox, 92, 445. McDermot v. Thomson, 153. McDowell v. Gregory, 90. McElmore v. Railway Company, 161. McElmurry v. Ardis, 408. McEneny v. Reed, 10. v. Town of Sullivan, 38. McEwin v. Zimmer, 50. McFadden v. Whitney, 100, 146. McGavock v. Bell, 260, 398. v. Clark, 60. McGee v. Wallis, 458, 484. McGhee v. Ellis, 457, 470, 483, 484. McGehee v. Wilkins, 99. McCreary v. Everling, 169. McCullough v. Dashiell, 174. v. "Estes, 218, 259, 329, 330, 496. McCullum v. Uhl, 38. McCully v. Hardy, 452. M cC'urdy v. Baughm, 174. McGowan v. Wilkins, 461. McGraw v. Bayard, 12, 23. — ■ v. Daly, 257, 263, 454. McGregor v. Morrow, 251. McGrew v. Reasons, 287. McGrubb v. Bray, 252, 255, 324, 362, 447. McGuinnes v. Whalen, 7. McGuire v. Houns, 414, 416. McTlwain v. Karstens, 262. Mr Kay v. Bank, 296. McKee v. Lineberger, 3, 17, 418 v. Simpson, 231. McKeever v. Ball, 253, 319, 426 McKeighan v. Hopkins, 365. McKinney v. Brown, 174. - v. Collins, 95. Jones, 141. 261, McKinneys v. Scott, 278. McKnight v. Applegate, 339. v. Gordon, 14. McLane v. Piaggio, 68. McLaughlin v. Daniel, 483. v. Janney, 308. v. McCrary, 108. v. Thompson, 446. v. Wheeler, 133. McLendon v. State, 271. McLeod v. Applegate, 8. v. Johnston, 474. McMannis v. Rice, 246. McMannus v. McDonough, 84. v. Superior Court, 287. McMichael v. McDermott, 326, 327, McMinn v. Whelan, 22, 109, 294. McMillan v. McCormick, 453. v. Reeves, 186. 42 TABLE OF CASES. McMullen v. Goble, 358. v. Reeves, 173. McNair v. Hunt. 20, 323. McXamara v. Carr, 90. McNeil v. Carter. 206. v. Eddie, 66. v. Society, 179, 214. McXally v. Harms. 159, ~47. McNitt v. Turner, McPherson v. Cunliff, IS, 226. 233, 386. McEea v. Danner, 280. v. Daviner, 387. McRoberts v. Lyon, 273. Meador County v. Aringdale, 275. Means y. Rosevere, 3.">7. Mebane v. Lay ton, 343. Meehan v. Edwards. 437. Meher v. Cole, 458, 461, 471, 47«, 481. Meherhoff v. Diffenbacker, 12'.. Meigs v. Bunting. 290. 373. Melia v. Simmons, 48, 150, 155, • 215. Mellon v. Boarman, 459. Melius v. Pabst Brewing Companv, 257, 363, 454. ■ v. Pfister, 212, 261, 318. Melton v. Fitch, 245, 344, 401, 421. 44:.'. 493. Menafee v. Marge, 226. Menges v. Dentler, 494, 495, 499, 502. ■ V. Oyster, 330. Mentzer v. Ellison, 445. Mercier v. Chace, 44. Merchant v. Railway Company, 37. Merriam v. Knight,* 446. Merrill v. Beckwith, 104. v. Harris, 158, 159, 230, 247, 251, 338. v. Washburn, 195. Merritt v. Home, 393. 475. v. Richey, 289, 423. Merry v. Bostick, 206, 472. Mertz v. Berry, 343. Messenger v. Kentner, 162. Messerschmidt v. Baker, 408. Metealf v. Hart. 195. Methin v. Bexley, 457, 459. Meyer v. Brooks, 49. v. Cochrane. 289. v. Hearst, 169. v. Kuhn, 127. 428. v. Mintoyne. 262, 280. 283. Meyers v. McGavock, 93, 157, 225, 226, 234. 443. Michoud v. Girod, 362. Mickel v. Hicks. 235. 430, 443. Millard v. Marmon, 161. Miller v. Babcock. 422. — v. Baker, 371. v. Brinkerhoff, 44. v. Butler, 315. ■ v. Corbin, 126. v. Craig, 490. v. Graham, 500. v. Hall, 129. v. Handy, 438. v. Ivolb, 491. v. Miller, 210, 418. v. Morrison, 289, 373. v. O'Bannon, 274. v. Railway Companv, 435. v. Sherry, 197. v. United States, 196. v. Wright, 466. Millett v. People, 37. Milliken v. Brown, 275. Mills v. Herndon. 433. v. Lombard, 259, 272, 375, 416. v. Ralston, 8. v. Rogers, 360. v. Tukey, 406. Mining Company v. Auditor, 503. v. Bank, 459. v. Marsano, 22. v. Mason, 295. 356. v. Mining Company. 38, 49, 59, 79, 195, 201, 262, '294. 300, 445. v. Ross, 486. Minnesota Company v. St. Paul Company, 380. Minor v. Natchez, 321, 323. Mitchell v. Bliss, 414. v. Bowen, 399. v. Campbell, 496. v. Corbin, 285. v. Evans, 285. • v. Freedley, 473, 476. v. Kintzer, 200, 450. v. Lipe, 325. V. Parker, 28. — v. Schoonover, 167. v. St. Maxent, 280. v. Wood, 206. Mock v. Stuckey, 476. Moffitt v. Moffitt, 21S, 229, 320, 323. Mohan v. Smith, 343. Mohr v. Manierre, 18, 93. 157, 228. v. Porter, 93, 157, 22S, 234, 252. Monahan v. Vandyke. 243. Monarque v. Monaroue, 459. Montgomery v. Carlton, 161. v. Johnson, 218, 24S, 335, 396. TABLE OF CASES. 43 Montgomery v. Realhafer, 2S2, 304. - v. Saniory, 380. Montour v. Purdy, 252, 254, 255, 261, 316, 324, 402, 447, 453. Moody V. Butler, 392. v. Moeller, 29, 302, 330, 44S. Moore v. Cottingham, 231. v. Davis, 391. v. Easier, 171. v. Edgefield, 102. v. Fedewa, 271. v. Greene, 392. v. Haskins, 432. v. Hill, 473. v . Hood, 226. v. Lock Company, 406. v. Martin, 409. v. Neil, 259, 428. v. O'Barr, 56. v. Philbrick, 179. v. Pye, 388. v. Schultz, 6, 12. - v. Stark, 70, 238. v. Thompson, 206. Morton v. Root, 262. Moser v., Julian, 139. Mosley v. Manufacturing Company, 167. Mosseau's Will, 215. .Mover v. Bucks, 149. 152, 194. v. Hinman, 206. Mount v. Brown, 408. Moulton v. Moulton, 242. Mudge v. Steinhart, 96, 109. Muir v. Berkshire, 470, 479. 485. v. Craig, 470, 472, 4S3, 485. Mulford v. Beveridge, 234, 374. v. Stalzenbeck, 374. Mulholland v. Scott, 335. Munday v. Kaufman, 464. v. Vail, 146 Munford v. Pearce, 506. Munson v. Newson, 179. v. Plummer, 202, 291. Mora v. Kuzac, 5 Mordacia v. Speight, 302. Morey v. Hoyt, 302. v. Morey, 106. Morgan v. Bouse, 457. v. Burnett, 161, 429. v. Dodge, 150. v. Evans, 276, 285. v. Ramsey, 303. v. Taylor, 282. v. Wattels, 362. Moriarity v. Gait, 343. Morrill v. Morrill, 187, 197, 259, 427, 434, 435, 450. Morris v. Balkham, 449. v. Bunce, 339. v. Clymer, 506. v. Graham, 108. v. Hand, 179. v. Hastings, 321, 322. v. Hogle, 226, 240, 262. v. Roby, 321, 370, 460. Morrison v. Deadrick, 169. v. Harrington, 342, 422. ■ v. Hinkson, 346. Morrisse v. Inglis, 355. Morrow v. McGregor, 329, 331. v. Moran, 387, 404. v. Weed, 320, 323. Morse v. Bank, 422. v. Bresey, 22. v. Reed, 456. Mortgage Company v. Smith, 384, 388. Morton v. Carroll, 70. Murchison v. White, 27, 29, 429. Murdock v. Cincinnati, 38. Murphy v. De Fiance, 159, 247. v. Hill, 331. v. Lyons, 111, 113, 181, 183. — v. Swadner, 314. v. Teter, 363. Murrell v. Roberts, 263, 289. Murray v. Surety-Company, 51. Musgrove v. Connover, 453. Myer v. Cochrane, 289. v. McDougal, 369. Myers v. Brooks, 87. — v. Davis, 251. v. Lindsay, 381. Mygatt v. Coe, 422. N. Nabers v. Meredith, 277. Nabours v. Cocke, 262. Nace v. State, 101. Nanson v. Jacob, 477. National Bank v. Bank. 135 Nave v. Adams, 192. Neal v. Bartheson, 397. v. Gillespy, 457. v. Patterson, 310 Needham v. Salt Lake City, 217, 221. v. Wilson, 92, 445. Neel v. Hughes, 421. Neill v. Cody, 392. Neligh v. Keene, 335, 387, 395. 436. Nelson v. Bronnenberg, 321, 359. v. Campbell, 49, 87. v. Connor, 315. - v. Potter. 175. v. Rountree, 445, 497. Nesslcr v. Mehr, 206. u TABLE OF CASES. Neweomb v. Dewey, 181. v. Light, 139. v. Neweomb, 112. v. Smith, 216. Newell v. Dart, 203. Newmaier v. Vincent, 343. Newman v. Beckwith, 296. v. Bowers, 64, 127, 445. - v. Hook, 314, 331. In re, 63, 107, 129, 130, 183. v. Manning, 185, 432. V. Samuels, 494, 495. New England Manufacturing Com- pany v. Starin, 84. New Orleans v. Gaines, 167. Nichols v. Dibrell, 197. v. Nichols, 66, 79, 319. v. Ridley, 34. v. Shearon, 458, 461. v. Spremont, 343. Nicholson v. Cox, 174. Nims v. Sherman, 479. v. Spurr, 272. Ninde v. Clarke, 277. Nippolt v. Kammon, 354. Nix v. Douglass, 355. - v. Williams, 340. Eailway Company, 107, . Thompson Oil Company, 196. Noland v. Barrett, 4, 6, 13, 17, IS, 32, 388. y. Noland, 295. Norman v. Olney, 230, 251, 407. Norris v. Hunt, 354. y. He, 187. v. Kidd, 343. Northcraft v. Oliver, 280, 449, 471, 481, 484. Norss v. Neal, 332. Norton v. Loan & Trust Company, 459, 463, 464, 466. v. Jamison, 169. v. Norton, 248. v. Pettibone, 495. y. Taylor, 459. v. Shelby, 55, 65. Norwood v. Kenfield, 142. Nott v. Sampson Manufacturing Company, 255. Nowler v. '(oil, 175. 484, 485. Nugent v. Nugent, 212. Nutt v. Summers, 459. Nye v. Swan, 181, 184. O. Oakes v. Williams, 275. Oakley v. Aspinwall, 139. O'Bannon v. Saunders, 303. Oberthier v. Stroud, 459. O'Brien v. Gaslin, 19. v. Harrison, 201, 291. O'Bryan v. Davis, 350. O'Dell v. Campbell, 125. - v. Rogers, 158, 235, 443., Oden v. Dupuy, 475. O'Donnell v. Clinton, 31. Oelbermann v. Ide, 122. Ogden v. Walters, 415, 420. Ogle v. Baker, 200, 435, 450. O'Kelly v. Cholston, 313, 474. Oldheld v. Eulert, 262, 330. Ollis v. Kirkpatrick, 303. Olson v. Nunally, 147, 262. O'Neal v. Wilson, 422. Opinion of Judges, 506. Orcutt v. Hanson, 54. Oriol v. Herndon, 72, 156, 233, 443. Orman v. Bowles, 161. Ornisby v. Terry, 459. Orr v. Owens, 330, 452. Orthwin v. Thomas, 193. Osborne v. Tunis, 448. Osgood v. Blackmore, 336, 340, 438. v. Thurston, 53. Osman v. Traphagen, 252, 397, 407. Osterman v. Baldwin, 457. Otis v. Kennedy, 367. Overton v. Perkins, 303. v. Tozer, 334. Owen v. Baker, 207. - v. Barksdale, 354. v. Slatter, 461. Owens v. Hart, 343. v. McClasky, 59. v. Eanstead, SO. Paget v. Pease, 132. v. Stevens, 122. Paine v. Moreland, 92. 445. Palariet, Appeal of, 498. Palmer v. Crosby, 272. v. Martindale, 199. v. Martinelli, 450. - v. McMaster, 113, 200, 431. v. Oakley, 185, 245 Pal inert on v. Hoop, 326, 393, 453. 475. Paper Company v. Publishing Com- pany, 449. Parchman v. Charlton, 221, 441. Parker v. Kuhn, 43. v. Nichols, 316. v. Parker. 343. v. Shannon, 400, 437. v. Swan, 423. TABLE OF CASES. 45 Parkhurst v. Randall, 192. v. Sumner, 192. Parks v. Highbee, 12o. Parmelee v. McGinty, 475, 477, 481. Parmenter v. Birkley, 421. Parson v. Homy, 476. Parsons v. Circuit Court, 287, 305. Pasely v. McConnell, 405. Pate v. Hinson, 326, 437. Patterson v. Carneal, 337, 339. v. Lemon, 3(59. v. Nixon, 351. Pattison v. Josslyn, 360. Paul v. Smith. 45. v. Willis, 149, 179, 201, 215, 219, 294. Paulsen v. Hall, 331. Paxton v. Daniell, 60. v. Freeman, 345. v. Sterne, 422, 423, 484. Payne v. Hardesty, 129. v. Lott, 105. v. Massick, 86. v. Payne, 281. Pearce v. Moore, 351. Pearsall v. Chapin, 27. Pearson v. Davis, 205. v. Johnson, 382. Pease v. Egan, 478. v. Scranton, 23. Pearse v. Hill, 428. Peck v. McLean, 187, 197, 292. v. Shasted, 161. Peckharn v. Newark. 497. Pecotte v. Oliver, 272. Peel v. Jannay, 81. Pemberton v. McRea, 354. Penniman v. Cole, 273, 276. v. Hollis, 23. Pennoyer v. Neff, 22, 49, 52, 95, 10S, 152,*445. Penny v. Earle, 331, 449. Penrose v. McKenzie, 426. People ex rel. Colcutt v. Board, 39. People v. Boring. 406. v. Eggers, 179. v. Fleming, 413. V. Green, 426. v. Haskins, 413. v. Halladay, 197. v. Henekler, 271. v. Irwin, 413. v. Mullen, 426, 427. v. Pearson. 426. v. Railroad Company, 179. v. Ransom, 413. v. Seelye, 259. v. Skinner. 101. v. Supervisors, 500, 503. v. Thomas, 194. People v. Wempler, 503. Pepper v. Commonwealth, 339. Perham v. Kuper, 409. 1'crkins v. Dibble, 415. v. Fairfield, 318. v. Gridley, 389. v. Hall, 361. v. Iron Company, 2S6. v. McCarley, 163. Perry v. Adams, 72, 158, 226, 235, 443, 481, 497. v. Clarkson, 308. V. Morse, 42. v. Whipple, 264. Peters v. Yawter, 287. Petersburg v. Whitnack, 266. Peterson v. Emerson, 411. Petit v. Shepherd. 203, 205. Pettus v. McClanahan, 429. Pewabic Mining Company v. Mason, 3. Pfeifer v. Lindsay, 354. 419. Phelps v. Benson, 361, 368, 450, 486. — v. Buck, 213. Phillips, Appeal of, 100. v. Brown, 330. v. Coffee, 323, 415. v. Dawley, 384. v. Johnson. 457. ■ v. Lewis, 187, 427. ■ v. Root, 343. v. Wilson, 357. Picard v. Montross, 215, 243. Pickering v. Lomax, 179. State, 64. Piel v. Brayer, 359, 370. Pierce v. Association, 85. v. Evans, 310. v. Gates, 11. v. Swigert, 313. - v. Truax, 343. Pierson v. Fisk, 468. Pike v. Chicago, 186, 432. — v. Kennedy, 113. v. Wassal. 3S0. Pincus v. Reynolds. 200. Pioneer Land Company v. Maddux. 194. Piatt v. Manning, 84. MeCullough, 413. Plume v. Howard. 45. Plummer v. Hatton, 60. Poindexter v. Burwell, 50, 176. Doolittle, 354. Pollard v. Wegner, 22. Pomes v. Brewer, 372. Ponder v. Chevers, 278, 437. Pool v. Ellis. 482, 4S4. Poor v. Larabee, 411. Pope v. Benster, 2S9, 457. 46 TABLE OF CASES. Pope v. Erdman, 464. v. Harrison, ISO, 425, 429. Porter v. Byrne, 315. v. Jackson, 470. v. Mariner, 406. v. Ogden, 86. V. Pico, 423. v. Robinson, 161. v. Stapp, 296. Portis v. Parker, 271. Post v. Leet, 461. Postlewait v. Ghiselin, 154, 247. Potter v. Couch, 422. Potts v. Wright, 386, 450. Power v. Larabee, 328, 358, 436, 437. Powers v. Bergen, 499. v. Cray, 23. v. Mitchell, 44. Pratt v. Hotaling, 251, 252. Prentis v. Bowden, 280. Prescott v. Pettee, 313, 376. V. Prescott, 268. Pressly v. Harrison, 181. Preston v. Fryer, 465. Price v. Boyd, 470. v. Junkin, 372. Prine v. Mopp, 161. Proctor v. Furnam, 408. v. Newhall, 162. Pry, Appeal of, 154. Pryor v. Downey, 210, 21S, 223. 244, 402, 497. Publishing Company v. Bennett, 356. Puekett v. Richardson, 280. Pullen v. Hillman, 44. v. Kinsinger, 43. Purcel v. Deal, 274. Purdy v. Hall, 195. Purser v. Cady, 290, 291. Purl v. Duval, 296. Pursley v. Hayes, 432, 452. 473. Q. Quackenbush v. Henry, 303. Quarle v. Abbett, 40," 104, 106, 108, 194. Quarles v. Hiern, 181, 321. Quinn v. McMahon, 50. Quivey v. Baker, 492. R. RadclifT v. Barton, 276. Rahn v. Commonwealth. 319. Railway Company v. Ashby, 107. V. Belle Centre, 45, 105. v. Bin ken v, 471. v. Blythe, 70, 226, 505. Railway Company v. Bradley, 332. v. Brooks, 276. v. Brow, 89. v. Cadwell, 84. v. Chamberlain, 432. v. Cook, 72, 158, 235, 443. v. Creed, 355. v. Debusk, 85. v. Gibbons, 54. v. Gibson, S5. v. Gay, 179. v. Heim, 206. v. Hubbard, 194. v. Judge, 186. v. Koontz, 141. v. McBride, 82. v. Morris, 88. v. Pinckney, 22. V. Railway Company, 38, 138, 192, 501. v. Sandoval Co., 54. v. Souther, 361. v. Summers, 139, 149. v. St. Paul Company, 14. v. Superior Court, 87. v. Telegraph Company, 51. Ramsey v. Herkimer, 468. Rand v. Cutler, 303, 313, 449. v. Garner, 206. Randalls v. Wilson, 172. Rankin v. Miller, 235, 452. Rammel v. Watson, 276. Ranier v. Hulbert, 152. Ransom v. Sargent, 206. Rappleye v. Bank, 208. Rasch v. Moore, 76. Rathbone v. Hooney, 189. Rawlings v. Bailey, 403. 412, 453. Raymond v. Hinkon, 102. - v. Holborn, 436. v. Pauli, 436. Rea v. McEachron, 380. Rector v. Hartt, 358. Read v. Howe, 218. Real Estate Company v. Hendrix, 19, 95, 108, 152, 262, 380, 431, 436, 445. Redd v. Dyer, 459. Reed, Appeal of, 457. v. Crosthwait, 470. - v. Diven, 359. v. Douglass, 197. v. Garfield, 2S1. v. Kolfsbeck, 480. v. Pryn, 307. v. Reed, 43. - v. Radigan, 3S1, 3S4. v. Wicht, 55. Reese v, Copeland, 381. TABLE OF CASES. ■i? Eeese v. Xoland. 150. 233. Reeve v. Kennedy, 3G9. Reeves v. Sebern, 314. Reinach v. Railway Company, 18. Reiner v. Eurlbut, 60. Reid \. Heasley, 414. v. Jordan, 167. v. Morton, 234. Reinhart v. Lugo, 425. Remick v. Butterfield, 364. Remmington v. Linthieum, 34, 405. Renner v. Ross. 223. Reno v. Hale, 365. Rent mi v. Maryott, 459, 465. Requa v. Holmes, 477. — v. Rea, 467. Revues v. Dumont, 198. Reynolds v. Cobb, 422, 423. — v. Fleming, 90, 91. — v. Harris, 201, 291. v. Lincoln, 289, 373. — ■ v. Schmidt, 228. v. Stansbury, 226. v. Stockton, 51, 146. Rheel v. Hices, 469. Rhiner v. Frank, 411. Rhoades v. Selin, 450. Rhode Island v. Massachusetts, 45. Rice v. Calhoun, 102. ■ v. Parkman, 506. v. Poynter, 390. Richards v. Allen, 424. v. Rote, 497, 499. v. Thompson, 190. Richardson v. Butler, 215, 216, 218, 230, 388. , Estate of, 28. Richert v. Voss, 476. Richey v. Merritt, 274, 285, 436. Richman v. Board, 503. Richmond v. Gray, 411. v. Marston, 470. 484. 4S5. Richer v. Vaughn, 77, 233. Rickettson v. Richardson, 125. Ricketts v. Unangst, 328. Riddle v. Turner, 273. Riggs v. Purcell, 462. Ripley v. Erledge, 285. Riley' v. Burton, 3.1,",. — v. Hart. 132. v. Martinelli, 369. Rimes v. Williams, 201, 294. Ritter v. Henshaw, 460. v. Scannel, 375. River v. Riley, 200. Riverside County v. Howell, 446. Roach v. Martin, 251. Robb v. Hannah. 355. v. Rogers, 88. Roberts v. Deeds, 354. v. Hughes, 457, 459, 464. v. Improvement Company, 109. v. Robinson, 206. Smith, 3a. Stowers, 262. Bates, 372. Robbins v. Robertson v. Bradford, 215, 393, 111, 475, 482, 497. v. Johnson, 248. — v. Smith, 260, 398, 467. v. Van Cleave, 404. v. Wheeler, 56. Robinson v. Allison, 429. v. Clark, 365. - v. Davis, 199. v. Garth, 34, 404. v. Hall, 107, 404, 406. v. Leach, 343. v. Murphy, 27. Roby v. Canal Company, 192. Roche v. Waters, 162, 226, 4'.»7. Roeksell v. Allen, 459. Roderman v. Clark, 477. Rockwell v. Allen, 457. Roderigas v. Bank, 151. Rodgers v. Evans, 44. ■ — ■ v. Bowner, 205. Rogers v. Abbott, 491. v. Brown, 479. v. Cawood, 303, 404. v. Smith, 459. v. Wilson, 233. Rolfe v. Dudley, 124. Roller v. Reid, 49. Rollins v. Mclntire, 2S7. Ronan v. Meyer, 358. Root v. McFerrin, 72, 158, 1S6, 235. v. Railway Company, .'ill. Rose, Estate of, 455. v. Newman, 299.. Rosenfeld v. Palmer, 271. Roseman v. Miller, 270, 449. Ross v. Donaldson, 404. - v. Meade, 358. Rossiter v. Peck, 432. Rotch v. Humbolt College, 73, 239, Round v. Pullen. 419. Rounsaville v. Hazen, 321, 396. Rouse v. Donovan, 37. Rowan v. Refeld, 331. Rowden v. Brown, 2:.".'. Rowe v. Major. 393, 437. - v. Palmer. 45. 218. Rowley v. Howard. 406. v. Tousley. 486. Roy v. Horslev. .". 1. — v. Trust Company. S2, 87. v. Rowe, 61, 70, 86. 48 TABLE OF CASES. Royer v. Foster, 126. Royston, Appeal of, 101. Rozier v. Fagan, 506. Rubber Company v. Knapp, 445. Ruby v. Coal & Mining Company, 8. Rucker v. Dyer, 317. v. Moore, 238. Ruckle v. Barbour, 34, 410. Rudy v. Bank, 315. v. Commonwealth, 314. v. Ulrieh, 251. Rule v. Broach, 153, 236. Rumrill v. Bank, 228, 252, 255, 441. Runnels v. Kaylor, 491. Rupert v. Dantzler, 203. Russell v. Place, 197. Rutland v. Pippin, 307. Ryan v. Dox, 421, 442. v. Ferguson, 156, 443. v. Staples, 291. Ryder v. Flanders, 252, 254, 261, 316, 402. Ryers, In re, 139, 450. Sackett v. Rombaugh, 21. — v. Twining, 6, 12. Safford v. Weare, 199. Sager v. Mead, 27, 435, 450. Salladay v. Bainhill, 1S5. Salmond v. Price, 175, 469, 485. Saltonstall v. Rilev, 416. Samuels v. Shelton, 406, 418, 420. Sanborn v. Cooper, 452. v. Fellows, 185. Sanders v. Pierce, 56. Sandford v. People, 179. Saifdlin v. Anderson, 286. Sanders v. Logue, 195. Sands v. Codwise, 361. v. Lynham, 481. Sanger v» Trammel, 313. Santon v. Ballard, 54. Satchel v. Satcher, 156, 230, 233, 259. Satterlee v. Matthewson, 500. Satterwhite v. Melzer, 296. Saunders v. Bank, 315. v. Gould, 290, 373. Savings Bank v. Hollenbeck, 205. v. Love joy, 84. Sawyer, Ex parte, 48, 149, 181. Saxton v. Seberling, 357. Saye v. McAllister, 184. Seaman v. Galligan, 44, 194. Schaale v. Wasey, 229. Schad v. Sharp, 429. Schafer v. Luke, 255. Schee v. Le Grange, 181. Schlee. In re, 107. v. Darrow, 217. Schenck v. Sauter, 476. Scherr v. Himmelmann, 472. Schnell v. Chicago, 229, 240, 473. Schisel v. Dickson, 445. Schneider v. McFarland, 235. School District v. Griner, 84. v. Werner, 205. Schrader v. Hoover, 54. Schrobacher v. Insurance Company, 63. Schroeder v. Wilcox, 72, 156. Younj Schweringer v. Hickok, 49, 469. 4S4. Scott v. Allen, 278. v. Crews, 427. v. Gorton, 362. v. McNeal, 48, 150, 17S, 215, 251. v. Mewhirter, 206. v. Noble, 48. v. Scott, 78, 229. v. Toledo, 38. Scribner v. Whitcher, 274. 276. Scudder v. Jones, 38. Sargent, 201. Scully v. Lowenstein, 55. Seaman v. Hicks, 462. Riggins, 327. Seamster v. Biackstock, 146. Sears v. Terry, 160, 185. Seaton v. Hamilton, 264. Sebastian v. Johnson, 300- Secretary v. Insurance Company, 413. Seeberger v. Wineberg, 411. Seger v. Muskegon Company, 92. Seligson v. Collins, 343. Sell v. West, 46. Selsby v. Redlon, 495. Settlemeier v. Sullivan, 67. 68, 181. Sever v. Russell, 433. Severance v. Gerke, 179. Sewall v. Bank, 314. Seward v. Dideen, 184. Sewing Machine Company cliflfe, 60. Sexton v. Alberti, 2SS. v. Nevers, 4S4. Rad- Seymour v. Ricketts, 231. Shad v. Sharp, 180. Shaffer v. McCracken, 289, 439. Shampney v. Smith, 341. Shank v. Brown, 495, 499. Shanklin v. Sims. 203. Shakman v. Schwartz, 271. Shannon v. Newton, 2S6, 369. Sharp v. Blair, 423. TABLE OF CASES. 49 Shattuck v. Cox. 478. Shawhan v. Loffer, 239. Shehan v. Barnett, 505, 506. Sheldon v. Newton, 43. v. Rice, 362. Shelton v. Hadloek, 160. Shepherd v. Mclntire, 352. v. More, 134. v. Pepper, 187. Sherwood v. Baker, 1S6, 433. Shields v. Moore, 263. Shindel v. Keedv, 17. Shipman v. Butterfield, 210, 211. Shipp v. Klinger, 505, 506. Shippen v. Kimball. 45, 1 14. Shirk v. Thomas, 202, 203, 275. 291, 404. 460. Shoemaker v. Harvey. 422. v. McGonigal, 354. Short v. Galway, 50. v. Hepburn, 297. 330, 448. v. Porter, 382, 461. v. Sears, 484. Shortzell v. Martin, 14, 258. Showers v. Robinson", 252. Shriver v. Lynn, 380, 385, 421. 442. v. Shriver, 459. Shropshire v. Pullen, 339. Shumard v. Phillips, 388. Shumate v. Williams, 377. Shyrock v. Buckman, 278. Sichler v. Look, 107, 183. Sickles v. Hogeboom, 406. Sid way v. Lawson, 494, 495, 499, 500. Sibert v. Thorp, 369. Sid well v. Schumacher, 270. 271, 449. v. Worthington, 106. Silvan v. Coffee, 264. Silvernail v. Campbell, 467. Simmons v. Blanchard, 392. — v. Bayard, 161. v. Hall 341. v. McKay. 172. v. Saul, 185, 186, 231, 464. v. Vandegrift, 307. Sims v. Bank, 271. v. Gay, 180, 181, 429. Sinclaire v. Learned, 503. v. Stanley, 302, 330, 448. Singerly v. Swain, 468. Sipley v. Wass, 206. Sithin v. Board, 494. Sittig v. Morgan, 474. Sitzman v. Pacquette. 210. Skelton v. Sackett. 127. Skinner v. Maxwell, 315. v. Tin-ell, 478. 4 Skipwith v. Cunningham, 207. Slater v. Lamb, 303. Slattery v. Jones, 206, 208. Slauter v. llollowell, 82. Sledge v. Elliott, 184. Sleeper v. Seminary, 376. Sloan v. Sloan, 186, 221, 441. v. Thompson, 112. Small v. Hodgden, 408. Smiley v. Sampson, 42, 43. Smith v. Alexander, 282. v. Arnold, 4, 7, 14, 32. v. Behr, its. v. Blaekiston, 354. v. Bradly, 161. v. Brannon, 221. v. Brittain, 461. v. Clausmeier, 185, 432. v. Cockrell, 332. v. Colvin, 404. v. Crosby, 354, 419. v. Cuyler, 199, 450. v. Douglass, 334. v. Dubuque, 130. v. Finley, 185. v. Gates, 325. v. Grady, 60. v. Griffin, 108, 152. V. Hess, 434. v. Hileman, 417. - v. Hood, 277. v. Huntoon, 321, 358, 370, 460, 464. v. Hurd, 40, 41, 105. , In re, 408, 420. v. Jalow, 37. v. Kelly, 408. v. Kipp, 446. v. Knoebel, 481, 485. v. Knowlton, 102. v. Long, 380, 385. v. Marshall, 70. v. McCann, 342. v. McDonald, 161. v. Munday, 303. v. Painter. 459. v. Perkins, 366. v. Race, 157, 234. v. Randall, 321, 325. v. Reed, 280. v. Rice, 162, 210. v. Scholtz, 353, 400. v. Schultz, 358. V. Swenson, 453. v. Westerfield, 51. V. Wert. 392. v. Wildman. 154, 224, 247. v. Wilson. 211. v, Woolfolk, 145. 50 TABLE OF CASES. Smith v. Worden, 473. ■ v. Wortham, 459. v. Zent, 292. Sruithson v. Smithson, 450. Smoot v. Boyd, 86. Snapp v. Snapp, 197. Snow v. Hawpe, 372. Snowhill v. Snowhill, 506. Snydeeker v. Brosse, 75. Snvder, Appeal of, 433. — v. Botkin, 205. v. Coleman, 18, 481. Snydor v. Roberts, 259, 2S5, 333. Sohier v. Hospital, 506. v. Trinity Church, 506. Solomon v. Peters, 321. Somes v. Brewer, 27. Sommermeyer v. Schwartz, 108. Sonnenberger v. Steinback, 189. Sonnoner v. Jackson, 116. Soukup v. Investment Company, 289, 373, 439. Soule v. Hough, 123. Southard v. Perry, 326, 393, 474, 475. Sowards v. Pritchett, 3S3. Sparling v. Dodd, 365. Spaulding v. Harvey, 479. Speakman v. Forepaugh, 466. Spear v. Sample, 280. Speck v. Pullman, 3S0. v. Biggins, 414. v. Wohlein, 389. Spence v. Pearce, 34. Spencer v. Haug, 203, 303. v. Parsons, 174. v. Sheehan, 453. Spitley v. Frost, 343. Splahn v. Gillespie, 408. Spoors v. Coehn, 45, 48. Spragg v. Shriver, 473, 476. Spring v. Kane, 234. Springer v. Shanvender, 48, 150, 155, 178, 215. Sprogwins v. Taylor, 398. Sprott v. Beid, 272. 332. Spurgin v. Bowers, 72, 156. Stafford v. Harris. 29'.). 402. Stall v. Macallister, 333. Stampley v. King, 70, 242. Standi v. Gay, 502. Stanley v. Nelson, 227, 274. v. Noble, 226. 227. v. Stanley, 438. Staples v. Bradley, 208. . v. Connor, 210. v. Staples, 369. 372. Stapp v. The Clyde, 40. v. State. 364. Stark v. Brown, 479. v. Carroll, 153. State v. Bank, 310. v. Branch, 197. v. Cassidy, 271. v. Castee'l, 458. — v. Davis, 66. v. Foster, 271. v. Hadlock, 94. — v. Hamilton, 296. v. Hocker, 138. v. Jeter, 365. ■ v. Jones, 391. ■ v. Lawson, 410. — v. McGlynn, 251. — v. Michaels, 280. v. Morgan, 285. v. Nelson, 42. v. Newark, 499. - v. Page. 274. v. Railway Company, 50, 196. v. Rives, 302. v. Roberts, 296. v. Salyers, 289. v. Squires, 497. v. Stanley, 474. v. Superior Court, 107. v. Younts, 299. Steamship Company v. Tugman, 141. Sterans v. Edson, 457. Steel v. Bates. 81. v. Metcalf, 296. Steel Works v. Bresnahan. 200. 428. Steele v. Tutwiler, 290. Stegall v. Hun', 471. Steeple v. Downing, 351. Steere v. Vanderberg, 121. Steigert v. Bonn, 81. Stephens v. Dennison, 370. v. Thompson, 420. Stern v. Lee. 343. Stevens v. Bank. 438. - v. Houser, 353. v. Revnolds, 197. Stevenson v. McReavy, 184. St. Claire v. Cox. 60, 61. St. Louis v. Lanigan, 180, 183, 429. Stewart v. Anderson, 48, 49, 95, 109, 112, 183, 445. v. Armel, 472. — v. Bailey, 252, 455. ■ v. Cross, 460. ■ v. Devries, 459, 462, 464. v. Garvin, 34. v. Golden, 179. 211. v. Griffin. 505. 506. v. Nuchols, 283. TABLE OF CASES. 51 Stewart v. Pettegrew, 400. v. Railway Company, 479. v. Severance, 272, 360, 416. v. Stoker, 274. 276, 406. v. Stokes, 489, 493. Stevenson v. Polk, 77. Stilwell v. Swarthout, 24:). Stiver, Appeal of. 218. Stockand v. Bartlett, 347. Stocking v. Hanson, 90, 167. Stockwell v. Byrne, 334. Stoltsenburg v. Stoltsenburg, 333. Stockmever v. Tobin, 334. Stone v.' Day, 322. Stonebridge v. Perkins. 314. Stoner v. Ned', 11. Stoney v. Schultz, 382. Storm v. Adams, 116. Storrs v. Barker, 476. Stotts v. Brookfield, 259, 276, 369, 381. Stoughton v. Mott. 56. Stout v. Cook County, 354. v. La Follette. 315. — ■ v. Phillips Manufacturing Company, 468. Stover v. Boswell, 339.. Stow v. Kimball, 159. v. Steel. 415. 416. Strain v. Murphy, 415, 416. Strange v. Austin, 403. v. Beach, 492. Strasser v. Fort Wayne, 497. Stressguth v. Reigleman, 116. Street v. Insurance Company, 196. Stringham v. Board, 101. Stroble v. Smith. 393, 474. Strong v. Insurance Company, 189. Strouse v. Drennan. 216, 335, 459. Struble v. Keighbert, 492. Stuart v. Allen, 218, 221, 231. v. Palmer, 39. Stuckert v. Keller, 314. Stults v. Brown, 484. Sturgeon v. Gray, 101. v. Hampton, 310. Sturgis, Appeal of, 303. v. Fay, 50. Sturm v. Adams. 456. Sullivan v. Jennings, 463. v. Leckie, 206. v. Robb. 186, 433. v. Sullivan, 43. Sumner v. Palmer, 408. v. Parker. 210. Supervisors v. Edwards, 266. Swan v. Wheeler, 299. Swarts v. Stees, 206. Swereneen v. Gulick. 429. Swift v. Agnes, 272, 414, 423. v. Lee, 416. - v. .Meyers. 68, 107, 183. v. Yanaway, 153, 183, 184, 259, 369. 428, 438. Swigert v. Harber, 54, 275. Swink v. Thompson, 408. Swope v. Ardery, 327. Taney v. Woodmansee, 272. Tanner v. Stein, 416, 448. Tapley v. Martin, 167. Tarbell v. Parker, 154, 247. Tarleton v. Uox, 169, 171. Tarr v. Robinson, 457, 459. Tatum v. Croom, 354, 419, 4S9. Taylor v. Calvert, 362. v. Cooper, 381, 382, 383 v. Coots, 201. — v. Cornelius, 206. v. Cozert, 315. v. Eckford, 422. v. Gilpin, 17. v. MeCourtney, 270. v. Ormsby, 110. v. Place, 499. - v. Taylor, 270. v. Wynne, 206. Teacher v. Devol, 330. Telegraph Company v. Safe Deposit Company, 421. - v. Taylor, 54, 187. v. Trust Company, 435. Temple v. Hammock, 242. Temples v. Cain, 386. Tennell v. Breedlove, 429. Terrell v. Anchauer, 27, 365, 454. - v. Prestell, 206. v. Weymouth, 153, 476. Terry v. Cales, 1, 3, 4. - v. Cutler, 272, 296, 330. v. O'Neal, 289, 297, 373, 439, 448. Terwillager v. Brown, 362, 363, 454. Test v. Larch, ::7:;. Teverbaugh v. Hawkins, 215, 441. Thain v. Rudisill, 248. Thaw v. Ritchie, 93, 157, 226, 234. The Globe, 196. The Mayor v. Colgate, 10. The Mary, 9. The Monte Allege. 9, 32, 469. The Queen of the Pacific. 196. The Rio Grande. 196. Thez. Succession of, 159. 247, 458. Thomas v. Davi.lson. 379. 380, 459. v. Glazener, 378, 459, 483. v. Hebenstreit. 400. 52 TABLE OF CASES. Thomas v. Hunsacker, 173. v. Ireland, 66, 79. v. Kennedy, 342. v. Le Barron, 324, 414. v. Moore, 74. v. Owen. 66. v. People, 48, 150. v. Pullis, 505. v. Robinson, 432. Thompson v. Bickford, 271. v. Bishop. 84. v. Bondurant, 281. v. Boswell, 231. v. Brown, 154, 247. v. Insurance Company, 485. v. Jones, 70. v. Lawrence, 302. v. McCorkle, 66, 132, 425. 426. v. Morgan, 494. v. Munger, 461. — v. Ritchie, 355. v. Ross, 315. v. Simpson. 476. V. Tolmie, 234. v. Thompson, 292. Thorn v. Ingram, 3S0, 398. Thornton v. Boyd, 406. • v. Fairfax, 467. v. Miskimmon, 413, 493. v. Mulquinne, 316. Thorpe v. Bevans, 369. Threkelds v. Campbell, 459, 461. Threshing Machine Company v Beck, 334. Thrift v. Fritz, 382, 467, 468. Throckmorton v. Pence, 32, 458. Thurston v. Thurston, 506. Thweatt v. Bank, 500. Tibbits v. Jageman, 331. Tice v. Russel, 437. Tiernan v. Poor, 336. v. Wilson, 336. 340. Tillv v. Bridges, 459, 461. Tindal v. Drake, 506. Tipton v. Powell, 392. Titman v. Ricker, 12. Titus v. Warner, 343. Todd v. Cremer, 192. v. Flournoy, 506. v. Pilhowe'r, 258. Todlock v. Eccles, 197. Tolliver v. Brownell, 148. Tomlinson v. Fitze, 148. Tompkins v. Tompkins, 398. Toole v. Gridley, 437. v. Toole, 461. Topf v. King, 84. Tousley v. Board, 476. Tower v. McDowell, 303. Town of Wayne v. Caldwell, 48, 54, 194, 434. v. Newland, 422. Towns v. Harris, 303. Townsend v. Gordon, 244, 440. v. Smith, 81. V. Tallent, 242, 243, 380, 443,' 477. v. Thompson, 188, 479. Townshend v. Simon, 468. Tracy v. Roberts, 186, 215, 216, 237, 253, 255, 261, 316, 324, 402, 447, 473, 475, 477. Trapnall v. Richardson, 203. Trautman v. Schwalm, 116. Trear v. Witham, 277. Treat v. Maxwell, 180. Trentman v. Willey, 292. Treptow v. Buse, 422. Tromble v. Williams, 225. Trovello v. Tilford, 314. Truett v. Legg, 262. Trusdell v. Lehman. 206. Trustees v. Rouch. 357. Trust Company v. Buddington, 107, 123. v. Lumber Company, 427, 428. v. Pullen, 103. v. Railway Company, 106, 107, 183, 438. v. Telegraph Company, 50, 176, 444. Tucker v. Harris, 185. 186, 432. Tudor v. Taylor, 460, 472. Tukey v. Smith, 296. Turner v. Adams, 368. v. Bank, 408. — v. Conkey, 185, 432. v. Watkins. 326. Tutt v. Boyer, 388. Tuttle v. Jackson, 406. Twinin v. Swart, 344. Twogood v. Franklin, 370. Tyler v. Guthrie, 468. v. Wilkeson, 332. Tyree v. Wilson, 406. Tyson v. Brown, 441. U. Udell v. Kahn, 359. Ullman v. Mayor, 38. Ullrich, Ex parte, 36. Underwood v. McVeigh, 368. United States v. Arrendondo, 44, 45. v. Goyle, 66. v. Ilslev, 2S2. •TABLE 'OF CASES. 53 United States v. Walker, 51. Unknown Heirs v. Baker, 210. Upham v. Hemill, 459. Urton v. Woolsey, 164. V. Valentine v. Wysor, 364. Valle v. Fleming, L8, 235, 407, 412, 458, 471. Vance v. Foster, 467. v. Frink, 84. v. Royal Clay Manufactur- ing Company, 315. Vim (.leave v. Buker, 272. v. Miller, 453. v. Milliken, 453. Van Cott v. Prentice, 189. Van Dusen v. Sweet, 185. Van Gelder v. Van Gelder, 311. Van Horn v. Ford, 402. Van Hoven, Succession of, 435. Van Metre v. Assignee, 35(3. v. Sankey, 183, 259. Van Rensselaer v. Sheriff, 413. Van Sant v. Butler, 43. Van Shaak v. Bobbins, 28. Van Wyck v. Hardy, 116. Vanderlinde v. Canfield, 446. Vandever v. Baker, 6. Vannoy v. Martin, 457. Varten v. Howard, 402. Vasques v. Richardson, 184. Vastine v. Flury, 285. Vattier v. Lyttle, 459, 483. Vaughn v. Congdon, 42. v. Ely, 404. Velsian v. Lewis, 457. . Verner v. Carson, 450. Verner v. Coville, 397. Verry v. McClellan, 227, 244, 440. Yick v. Mayor, 235. v. Pope, 174. Vigoreux v. Murphy, 358, 436. Vilas v. Railway Company, 90. Village of Kansas v. Juntgen, 266. Vining v. Officers of Court, 298. Violet v. Violet, 353. Visart v. Bush, 432. Vocal ian Company v. Music Com- pany, 277. Voelz v. Voelz, 122. Vogler v. Montgomery, 343. Vogelsang v. Null, 31. Vogt v. Tichnor, 269. Volland v. Wilcox, 426. Vorce v. Page, 109. Voorhis v. Bank, 43, 369, 408. Voss v. Johnson, 359. Vrooman v. Thompson, 303. W. Wade v. Sewell, 206. v. Watt, 281. Wadham v. Gay, 369. Waggoner v. Mann, 29. Wagner v. Cohen, 382. Wait v. Dolby, 288. Wakefield v. Campbell, 33S. Walbridge v. Day, 245, 459. Walden v. Davison, 272. v. Gridlev. 459. Waldron v. Railway Company, 95. Waldrop v. Freidman, 276, 303, 449. Walker v. Day, 105. - v. Goldsmith, 218, 252, 261, 318, 324, 402, 447. v. Hill, 108. v. McKnight, 259, 339. v. Mulvean, 475. v. Stroud, 164. v. Walker, 372. v. Wayne, 100. Wall v. Wall. '48, 149, 181, 251, 434. Wallace v. Berdell, 472, 483. v. Brown, 385. v. Hall, 412. • v. Loomis, 369. ■ v. Nichols, 375. v. Swinton, 280. Walling v. Miller, 309. Walpole v. Elliott, 494. Walsh v. Anderson, 313, 376. v. Macomber, 313. Walter v. Greenwood, 274. Walton v. Reager, 459. v. Wray, 303. Wanzer v. Bright, 81. Ward v. Bank, 287. — v. Brewer, 491. v. Lowndes, 112, 496. Ware v. Bradford, 314, 321. - v. Houghton, 310. V. Johnson, 489. Warfield v. Dorsey, IS, 32. v. Woodward, 409, 467. Warmouth v. Dryden, 270. Warner v. Helm, 483. Warnock v. Harlow, 193. Warren v. Gutchens, 341 - v. Hull, 205. v. Helm, 470. Washburn v. Carmichael, 226, 236. Washington v. McCaughan, 210, 317. Wasson v. Cone, 82. — v. Bennett, 206. Waters v. Duval, 313, 314, 354. v. Peach, 278. v. Stickney, 433. 54 TABLE OF CASES. Watertown v. Robinson, 242. Waterworks v. Drinkhouse, 201. Watkina v. Holman, 175, 505. Watson v. Hoy, 459. v. Mercier, 495. v. Oates, 506. V. Reissig, 206, 472, 483. v. Tromble, 3S4, 395, 436. v. Violett, 18. v. Watson, 417. Watt v. Rambo, 231. Wattels v. Hyde, 433. Watts v. Scott, 392. V. White, 164. Weast v. Derrick, 468. Weaver v. Brown, 429. v. Cryer, 288. v. Guyer, 336, 340. v. Norwood, 488. v. Peasley, 270. 449. Webster v. Daniel. 107. 131. v. Howard, 459. V. Peck, 302. Webber v. Clark, 464. v. Stanton, 171. Weeks v. Bridgman, 30, 31 v. Weeks, 291. Weist v. Grant, 393. Weinman v. Conklin, 179. Wehrle v. Wehrle, 343, 485. Welborn v. People. 427. Welch v. Battem, 280. V. Lonis, 260. v. McGrath, 366. Weld v. Johnson Manufacturing | Company, 93, 228, 252, 253, 261, 318, 402, 447, 455. Well man v. Lawrence, 411. Welp v. Gunther, 8. Wells v. Bower, 203, 306 v. Benton, 206. v. Chailin, 245. V. Chandler, 289. v. Norton, 174. v. Pelk. 227. v. Rice. 8. Welsh v. Joy. 416. Weltzer v. Kelly, 498. Wenner v. Thornton, 327. Wescott V. Archer. 92, 445. West v. Cochran, 319, 419. v. St. John, 274. v. Waddill, 366. v. Walker, 163. v. Wheeler, 139, 451. Westheimer v. Reed, 422. 457. Westerfield V. Williams. 470. Wheatley's Lessees v. Harvey. 33, 235. Wheeler v. Cox, 91. Whipperman v. Dunn, 460, 472, 483. White v. Clark, 2S7. , Estate of, 451. - v. Farley, 34, 321. v. Foot Lumber Company, 48, 149, 174, 195. v. Graves, 27, 31. v. Iselin, 363, 454. v. Johnson, 59. V. Luning, 419. - v. Pressly, 422. v. Whiting, 422. Whitefield v. Adams, 343. Whitesides v. Barber, 77, 238. Whitlock v. Whitlock, 280. Whitman v. Fisher, 184. v. Taylor, 259. Whitney v. Burnett, 445. v. Butler, 413. — v. Porter, 242. Wibright v. Wise, 278. Wickliff v. Robinson, 365. Wicks v. Ludwick, 142. Wight v. Warner, 432. Wilbur v. Abbott, 473. Wilchinsky v. Cavender, 470, 489. Wilcox v. Emerson, 376. v. Kassick, 194. v. Raben, 19, 380, 385, 395, 436. Wildasin v. Bare, 419. Wildes v. Van Voorhis, 495. Wilhart v. Lyons. 290. Wilhelm v. Humphries. 423. Wilkins v. Conaty, 107. V. Filby, 316, 4T7. AVilkinson, Appeal of. 274, 276. - v. Leland, 176. 444. 496. 505. v. Schoonmaker, 149, 194. Will v. Simmons, 174. Willard v. Masterson, 422. v. Whipple. 285. v. Willard, 476. Willbanks v. Untrine, 348. Williams v. Allison, 358. v. Dora n. 372. ■ v. Glenn, 459, 461. v. Harrington, 4ns. v. Haynes, 170, 445. , In re. 185. v. Jackson, 351. v. Johnson, 369. v. McCammack, 185. v. Miller. 345. v. Morton, 186, 253. 261, 318, 402. 447. v. Xcth. 90. v. Railway Company, S4. TABLE OF CASES. 55 Williams v. Reed, 81, 253, 261, 31G, 318, 402, 447, 455. v. Weaver, 280. v. Welton, 78, 103, 135. v. Woodman, 414. Williamson v. Berry, 3, 4, 249, 260, 295, 379, 403. v. Warren, 225, 236. v. Williamson, 317, 4S1, 505, 506. Willis v. Chandler, 380, 385. v. Loeb, 422. v. Matthews, 343. v. Nicholson. 380. v. Vandyke, 459. Wilmerton v. Philips, 458. Wilmore v. Stettler, 47:!. 475. Wilson v. Armstrong, 223. v. Brown, 470. v. Campbell, 269, 415, 416. v. Commonwealth, 266. v. Coolidge, 174. v. Hastings, 227, 440. v. Herbert, 174. v. Holt, 217, 223, 244, 245, 441, 481, 482. V. Kellogg, 368. v. Madison, 416. v. Mason, 299. v. Nance, 288. v. Railway Company, 40. 7s. 95, 103, 135. v. Seligman, 60, 135. V. Shipman, 80. v. Smith, 419. v. Sparkman, 100. v. Trustees, 273. v. Twitty, 327. v. White', 459, 479. Windmiller v. Chapman, 314, 315. Windsor v. McVeigh, 39, 51, 95, 196. Windfield v. Adams, 331. Wing v. Dodge, 229. Wingate v. Haywood, 429 Wingo v. Brown, 459. Winifee v. Bagley, 40, 104, 10S. Winn v. Strickland, 149. Winston v. McLendon, 77, 235, 238. v. Westfield, 193. Winter v. Coulthard, 277. v. London, 433. v. Trainor, 354. v. Truax, 257. Wisdom v. Buckner, 369. Wishend v. Small, 299. Witham v. Smith, 413. Withers v. Caster, 207. v. Jacks, 201, 291. Withers v. Patterson, 150, 210, 216, 251. Witner, Appeal of, 205. Witson v. Otley, 369. WDll aid v. McKinna, 354. Wolf, Appeal of, 8. v. Hank, 181. v. Davis, 31. v. Payne, 332. Wood v. Blythe, 45. — v. Brady, 196. V. Colvin, 263, 294, 311. ■ v. Ellis, 377. v. Mann, 468. — v. McChasney, 223. v. Messerly, 204. V. Moorehouae, 315. v. Pond, 78, 103. v. Sullivan, 410. v. Watson, 173. v. Wood, 81. v. Young, 82. Woodard v. Mastin, 422. Woodbury v. Maguire, 239. v. Parker, 365. Woodcock v. Bennett, 285. Woodhull v. Little, 300, 397. Woods v. Coal Company, 187. Lane, 406. Woodworth v. Bennett, 360. Woodward v. Dean, 206. Woolridge v. Monteuse, 92, 445. Wooters v. Joseph, 276. v. Arledge, 354, 419. j Wooton v. Hinkle, 360. Worley v. Hineman, 1S9. Worner v. Agricultural Company, 478. Worthen v. Basket, 44s. v. Cherry, 406. Worthingson v. Hylyer, 419. Worthington v. McRoberts, 459. Worthy v. Johnson, 184. Wortman v. Skinner, 490. Worton v. Howard, 310. Wright v. Dick. 321, 356. v. Edwards, 2 is, 441. — ■ v. Hawkins, 494. - v. Miller, 189. v. Mack, 331. - v. Morley, 313. — v. Tichnor, 4:.'::. v. Wittenmyre, 221. v. Wright, 27, l"i 1. Wyant V. Tuthill, 396. Wyatt v. Rombo, 215. Wyer v. Andrews. 303, 440. Wylie v. Coxe, 198. 56 TABLE OF CASES. Wyman v. Brown, 315. v. Campbell. IS, 251, 319. v. Hooper, 372. Yaple v. Yarboro Yates v. Yeager v v Yeazel v. \eoman v, Yerby v. Yetzer v, Yoeum v York v. Y. Titus, 167. v. Brewster, 343. Robertson, 207. . Graves, 271. . Wright, 263. White, 387, 423. v. Bird, 314. . Brown, 24S, 331. Hill, 4. . Young, 274. . Foreman, 457, 461. Texas, 60, 49S. Young v. Clapp, 208. — v. Dowling, 490. v. Keogh, 412. v. Keeler, 94. v. Lorain, 230. v. Pickens, 171. v. Rathbone, 151. v. Schroeder, 437. v. Smith, 303, 406. v. Walker, 475, 477. Z. Zabriskie v. Meade, 418. Zeigler, Appeal of, 11. v. Shomo, 369. Zingsem v. Kidd, 490, 492. Zuver v. Clark, 332, 476. VOID JUDICIAL AND EXECUTION SALES. Chapter I. The Nature of Judicial and Execution Sales — General Principles and Definitions. ANALYSIS. Section 1. Technical Judicial sale Defined — Is a Sale Made Pendente lite. • 2. Court is the Vendor in a Judicial Sale. 3. The Master or Commissioner the Agent of the Court. 4. Sale is Incomplete until after Confirmation. 5. What Sales are Judicial — Sales Made by Assignee in Bankruptcy. 6. Administrator's Sales of Decedent's Lands. 7. When Administrator's Sale not Judicial. 8. • Partition and Mortgage Foreclosure Sales. 9. In Admiralty Proceedings. 10. Enforcement of Municipal Liens. 11. Vendor's Liens for Unpaid Purchase Money. 12. By Guardian, on Mechanic's Liens and by Orphan's Court. 13. Execution Sales not Judicial — Are Generally Ministerial. 14. Nature of Execution Sales. 15. Distinction between Judicial and Execution Sales — Puidi- cal Difference. 16- Distinguishing Characteristics of an Execution Sale. 17. When Execution Sale Complete. 18. Further Elements of Difference. 19. Quasi-Judicial Sales — Execution Sales Required to be Con- firmed. 20. Effect of Confirming Order. 21. Nature of Certain other Sales — Sales in Attachment Pro- ceedings. 22. Only the Property Attached is Affected in Such Case 23. Classes of Judicial Sales — Three General Classes. 58 VOID JUDICIAL AND EXECUTION SALES. Section 24. Classes of Judicial Sales — Sale in Foreclosure of Me- chanic's Lien in Georgia not Judicial. 25. Void and Voidable Sales — Distinction between Void and Voidable Sales. 26. Void and Voidable Defined. 27. Who Bound by a Voidable Act. 28. Void and Voidable Sometimes Indiscriminately Em- ployed. 29. Meaning Attributed to Void and Voidable. 30. Degrees of Voidness — Absolute Nullities. 31. Qualified Void Acts. 32. Statute of Frauds — Does not Apply in Judicial Sales. 33. •Administrator's Sales in Illinois within the Statute. 34. Execution Sales within the Statute. 35. The Author's Views. 36. Due Process of Law — Comprehensive Definition Impos- sible. 37. Interpretation of the Term. 38. — — Notice an Essential Requirement. 39. — — An Opportunity to be' Heard Essential. 40. ■ • Power to Prescribe Notice. 41. Constructive Service upon Residents and Non-residents. TECHNICAL JUDICIAL SALE DEFINED. Is a Sale Made Pendente lite. Section 1. A technical judicial sale is one made, in con- templation of law, by the court, pendente lite. It is a sale of property made under the decree of a court of competent jurisdiction, having authority to order it, and is made through the instrumentality of some officer of the court, whether elected or appointed and commissioned to make the sale. The sale is made by the court notwithstanding the fact that it is conducted by a master, commissioner, sheriff or other functionary of the court authorized to make the sale in its behalf. (Alexander v. Howe, 85 Va. 19S — 7 S. E. Rep. 248; Terry v. Coles, 80 Va. 695; Bozza v. Rowc. 30 111. 198 — 83 Am. Dec. 184; Harrison v. Harrison, 1 Md. Ch. 332; Blossom v. Railway Co., 3 Wall. 207.) Court is the Vendor in a Judicial Sale. § 2. Accordingly, in theory of law, in a strict judicial sale the court itself is properly the vendor, and the sale, in so TECHNICAL JUDICIAL SALE DEFINED. 59 far as the owner of the property is concerned, is an involun- tary one. (Bank v. Ned, 53 Ark. 110 — 13 S. W. Rep. 700 — 22 Am. St. Rep. 185; Hart v. Burch, 130 111. 426 — 22 N. E. Rep. 831; Bozza v. Rowe, 30 111. 198 — 83 Am. Dec. Ib4 ; Andrews v. Scotton, 2 Bland. 643 ; Hurt v. Stull, 4 Md. C'h. 391; Bank v. Humphreys, 47 111. 227; Harrison v. Harrison, 1 Md. Ch. 332; Amor v. Cochrane, 66 Pa. St. 308.) The Master or Commissioner the Agent of the Court. § 3. From its very nature a judicial sale is of necessity the result of judicial proceedings, and the order or judgment upon which the sale is founded, must expressly direct that the property involved, whether real or personal, be sold, for without such an order there can be no judicial sale within the strict meaning of that term. The master or other functionary elected or appointed and commissioned to make the sale is in this regard the mere in- strument or agent of the court and perforins his duties in sell- ing the property under its direction, and is at all times subject to its control. The acts of the officer in making the sale un- der the decre or order of sale, when regular, are in contem- plation of law, the acts of the court itself, and become binding only when sanctioned by the court by its order of confirmation. (Alexander v. Howe, 85 Va. 198 — 7 S. E. Rep. 248; Insurance Co. v. Cottrell, 85 Va. 857 — 9 S. E. Rep. 132 ; Maul v. Hellman, 39 Neb. 322 — 58 N. W. Rep. 112; Alexander v. Hardin. 54 Ark. 480 — 16 S. W. Rep. 264; Hart v. Burch, 130 111. 426 — 22 N. E. Rep. 831; Bank v. Neel, 53 Ark. 110 — 13 S. W. Rep. 700 — 22 Am. St. Rep. 572; Halleck v. Guy, 9 Cal. 181 — 70 Am. Dec. 643; Hutton v. Williams, 35 Ala. 503 — 76 Am. Dec. 297; Chew v. Hyman, 7 Fed. Rep. 7; McKee v. Lineberger, 69 N. C. 217; Williamson v. Berry, 8 How. 490; Pewabic Mining Co. v. Mason, 145 U. S. 349 — 12 Sup. Ct. Rep. 887; Allen v. Gillette, 127 U. S. 5S9 — 8 Sup. Ct. Rep. 1331; Bolgiano v. Cooke, 19 Md. 375; Mason v. Osgood, 64 N. C. 467.) Sale is Incomplete until after Confirmation. § 4. " In sales directed by the court of chancery, the whole business is transacted by a public officer, under the guidance and superintendence of the court itself. Even after the sale is made, it is not final until a report is made to the court and it is approved and confirmed." (Smith v. Arnold, 5 Mason, 414; Yerby v. Hill, 16 Tex. 377.) 60 VOID JUDICIAL AXD EXECUTION SALES. " A judicial sale i? a sale pendente lite; whereas, an exe- cution sale is made after litigation in the case is ended, for, as we have before seen, a judicial act is something done during the pendency of a suit. The suit does not end with a decree of sale ; the proceeding still continues until after confirma- tion. (Alexander v. Howe, 85 Va. 398 — 7 S. E. Eep. 248; Williamson v. Berry, S How. 490; Terry v. Coles, SO Va. 695; Apel v. Kelsey, 47 Ark. 413 — 2 S. W. Eep. 102.) The functionary, by whatever name he may be designated, in a judicial sale acts merely as the agent or instrument of the court to sell a particular piece of property, and a part of his duty is to report his proceedings back to the court for which he" acts, and if the court sanctions his acts by confirm- ing the sale it adopts his proceedings, in theory of law, as its own, and his acts and proceedings become judicial acts, and the fact that the officer is required to report the sale to the court for its approval or rejection makes it a judicial sale. The rule in this regard has been lucidly stated in a very recent case in Missouri where the supreme court of that state said: " The law requiring such sales to receive the approba- tion of the court before it shall be binding, or valid to pass the title, in effect makes the sale the act of the court, hence the propriety of denominating such sales, " judicial sales ". (Noland v. Barrett, 122 Mo. 181 — 26 S. W. Eep. 692 — 43 Am. St. Eep. 572.) WHAT SALES AEE JUDICIAL. Sales Made by Assignee in Bankruptcy. § 5. Sales made by an assignee in bankruptcy have been held to be judicial for the reason that under statutory provision regarding such sales the proceedings are conducted under the supervision of, and subject to the confirmation of the court. (Leard's Appeal, 164 Pa. St. 435 — 30 Atl. Eep. 298; Chase v. Van Meter, 140 Ind. 321 — 39 X. E. Eep. 455; Dresbach v. Stein. 41 Ohio St. 70; McCracken v. Knhn, 73 Ind. 149; Lawsori v. De Bolt, 78 Ind. 563.) Administrator's Sale cf Decedent's Lands. § 6. A sale made by the administrator of a deceased person, under the order of the court of probate jurisdiction to WHAT SALES AEE JUDICIAL. til that effect, where the statute requires the fiduciary to report the sale to the court for its approval, is clearly a judicial sale, as it is virtually a sale by the court itself. (Noland v. Barrett, 122 Mo. 181 — 26 S. W. Rep. 692 — 43 Am. St. Rep. 572; Austin V. Willis, 90 Ala. 421 — 8 So. Rep. 94; Moore v. Shultz, 13 Pa. St. 98 — 53 Am. Dec. 446; Hutton v. Williams, 35 Ala. 503 — 76 Am. Dec. 297; Halleck v. Guy, 9 Cal. 181 — 70 Am. Dec. 643; Lynch v. Baxter, 4 Tex. 431 — 51 Am. Dec. 735; Sackett v. Twining, 18 Pa. St. 199 — 57 Am. Dec. 599; Forma n v. Hunt, 3 Dana, 614; Mason V. Osgood, 04 N. C. 647; Armor v. Cochrane, 66 Pa. St. 308; Vandever v. Baker. 13 Pa. St, 121.) When Administrator's Sale not Judicial. § 7. On the other hand a sale made by an administrator notwithstanding the same is made pursuant to an order of the court, when it is not by law required to be reported to nor confirmed by the court issuing the order, lacks the essen- tial elements of a judicial sale, for the court, upon authoriz- ing the administrator to sell, becomes, for the purposes of that sale, functus officio. The sale is simply the execution of a ministerial authority on the part of the officer. (McGuinness v. Whalen, 16 R. I. 558 — 18 Atl. Rep. 158; Smith v. Arnold, 5 Mason, 414.) Partition and Mortgage Foreclosure Sales. § 8. Sales made in proceedings for the partition of real estate are, beyond question, judicial as they are sales made by the court purely, notwithstanding they are governed by statutory regulations in almost if not every state. (Burden v. Taylor, 124 Mo. 12 — 27 S. W. Rep. 349; McLeod v. Apple- gate, 127 Ind. 349 — 26 N. E. Rep. 830; Insurance Co. v. Bank, 57 Pa. St. 388.) And sales made in proceedings in equity for the fore- closure of mortgage liens are judicial, as they are in the nature of proceedings in rem, and are not complete until con- firmation by the cour^. (Allen v. Elderkin, 62 Wis. 627 — 22 N. W. Rep. 842; Welp v. Gunther, 48 Wis. 543 — 4 N. W. Rep. 647; Woehler v. Endter, 46 Wis. 301- 1 N. W. Rep. 329; Blossom v. Railway Co.. 3 Wall. 196; Martin v. Kelly, 59 Miss. 652; Wells v. Rice, 34 Ark. 346; Mills v. Ralston. 10 Kan. 206; Dills v. Jasper, 33 111. 262; Allen v. Poole, 54 Miss. 323; Hay's Appeal, 51 Pa. St. 58.) 62 VOID JUDICIAL AND EXECUTION SALES. But mortgage foreclosure sales under fieri facias in those states where the action to foreclose under the statute is held to be an action at law, are not considered judicial. (Ruby v. Mining Co., 21 Mo. App. 159; Mason v. Barnard, 36 Mo. 384.) ISTor is a foreclosure sale of land under a mortgage by ad- vertisement under special statutes permitting such sales a judicial sale. (Hannah v. Chase, 4 N. Dak. 351 — 61 N. W. Rep. 18 — 50 Am. St. Rep. 656.) In Admiralty Proceedings. § 9. Sales in admiralty are strictly judicial, and are but carrying out by specific execution the decree or judgment of the court of admiralty in a proceeding in rem, and all the world is held bound by the sale. (The Monte Allegre. 9 Wheat. 616; Griffith v. Fowler, IS Vt. 390; The Mary, 9 Cranch, 126.) Enforcement of Municipal Liens. § 10. The sale made in the enforcement of munici- pal liens for street improvement under statutes or ordinances are judicial. Such liens are peculiarly creatures of statu- tory provisions unknown to the common law. Under re- peated decisions the rule is firmly established that the power of the court in these proceedings extends simply to a confir- mation or rejection of the sale, but not to a modification thereof. (Insurance ce Trust Co. v. Goodin, 10 Ohio St. 557; The Mayor v. Colgate, 2 Kern. 140; Hamilton v. Dunn. 22 111. 259; Mclnerney v. Reed, 23 Iowa, 410; Dubuque v. Harrison, 34 Iowa, 163.) Vendor's Liens for Unpaid Purchase Money. § 11. The sale of land in proceedings in equity for the enforcement of -the lien of a vendor for the unpaid por- tion of the purchase money, the lien arising in the vendor's favor by implication of law as against the vendee and all others holding under him with knowledge of the fact that the purchase money is in whole or part unpaid, is a judicial sale. (Long v. Perrine. 41 W. Va. 314 — 25 S. E. Rep. 611; Zeigler's Ap- peal. 69 Pa. St. 471; Pierre v. Gates. 7 Blackf. 162; Stoner V. Neff, 50 Pa. St. 25S; Bayley v. Greenleaf, 7 Wheat. 46.) EXECUTION SALES NOT JUDICIAL. G3 By Guardian, on Mechanics' Liens and by Orphans' Court. § 12. A guardian's sale of lands of his ward under the order of the court having jurisdiction directing such sale is judicial, and no title passes until after the confirmation thereof. (Searf v. Aldrich, 97 Cal. 360 — 32 Pac. Rep. 324 — 33 Am. St. Rep. 190; Titman v. Riker, 43 N. J. Eq. 122 — 10 Atl. Rep. 397; Lumpkins v. Johnson, 61 Ark. SO — 32 S. W. Rep. 65; Harrison v. Tiger, 74 Tex. 86—11 S. W. Rep. 1054.) So are sales in suits to enforce the liens of mechanics and materialmen judicial sales, (Bennitt v. Mining Co.. 119 111. 9 — 7 N. E. Rep. 498; McGraw v. Bayard, 96 111. 146; Clarke v. Boyle, 51 111. 104.) as well as sales under the order of the orphan's court in Pennsylvania. (Moore v. Shultz, 13 Pa. St. 98 — 53 Am. Dec. 446; Saekett v. Twin- ing, 18 Pa. St. 199 — 57 Am. Dec. 599.) EXECUTION SALES JSTOT JUDICIAL. Are Generally Ministerial. § 13. Execution sales under writs of execution is- sued upon a judgment for money in a suit at law are gener- ally not judicial, but merely ministerial. If such sales were considered judicial no action for damages could ever be maintained against the officer for seizing and selling the property of a third person not a party to the suit, under a writ of execution, for the self-evident and consummate rea- son that the court and not the officer is the vendor in a ju- dicial sale. (Noland v. Barrett, 122 Mo. 181 — 26 S. W. Rep. 692 — 43 Am. St. Rep. 572; Blatehford v. Connover, .40 N". J. Eq. 205 — 1 Atl. Rep. 16; Den v. Pilhower, 24 N. J. L. 796; Griffith v. Fowler, 18 Vt. 390.) Nature of Execution Sales. § 14. In theory of law an execution sale is but the transfer of the title to the property involved which the judg- ment debtor himself might voluntarily transfer. This prin- ciple is an old one dating its origin back to the Institutes of Justinian. In making the execution sale the purchaser 64 VOID JUDICIAL AXD EXECUTIOX SALES. takes title to the property not mediately but immediately from the defendant in the writ, and the sheriff is the agent of the debtor in making the sale, constituted and appointed for that purpose by law. "While it is true that in order to be valid, an execution sale must be based upon a judgment, decree or order, nevertheless the judgment is not for the sale of any specific property as is a strict judicial sale, but only to recover a specified sum of money. The officer having the writ receives no instructions, orders or directions from the court concerning the property to be seized or sold, nor is the sale to be reported to or con- firmed by the court. Ordinarily, then, the court is not con- cerned about an execution sale, and has no power over it save to vacate it for a non-compliance with the statute regulations and requirements touching the sale. The functions of the court having terminated with the rendition of the judgment for the money demand for the collection of which the writ is issued and is sought to be enforced, it is not concerned in the sale as is the ease in a technical judicial sale. The only rule and guide the levying officer has is the law ; his obedience is an obedience to the law, he having no special discretion or judgment in this regard. Or in other words, it is a ministerial as contradistinguished from a technical judicial sale. The court neither orders the execution to issue nor the sale to be made, in execution sales purely min- isterial. The officer in selling, in contemplation of the law, is the agent of the judgment or execution debtor for the pur- poses of the sale, (Shortzell v. Martin. 16 Iowa. 519; Cooper's Lessees v. Galbraith. 3 Wash. C. C. 546.) and is not the instrument or agent of the court in conducting the sale as in strict judicial sales. (McKnight v. Gordon. 13 Rich. Eq. 222 — 94 Am. Dec. 164: Hershey v. Latham. 42 Ark. 305: Railway Co. v. St. Paul Co.. 2 Wall. 600: Smith v. Arnold, 5 Mason, 414: Forman v. Hunt, 3 Dana, 614; Griffin v. Thompson. 2 How. 244: Armis v. Smith. 16 Pet. 303: South v. Maryland, 13 How. 396; Gantley's Lessees v. Ewing, 3 How. 707.) DISTINCTION BETWEEN JUDICIAL AND EXECUTION SALES. 65 DISTINCTION BETWEEN JUDICIAL AND EXECU- TION SALES. Radical Difference. § 15. The radical difference between judicial sales as contradistinguished from execution sales is this: that in the former the court controls the sale, acting through the functionary ostensibly making it, the transaction not being completed nor binding until the officer lias reported the sale to the court and it has been approved by it by the entry of its order of confirmation, while an execution sale by a sheriff is purely a ministerial cue, and the sheriff derives his authority to sell by virtue of the writ, and is guided by its terms and the law, and not by directions from the court, it not being required that his acts under the writ be confirmed. If however the statute requires a confirmation of the sale by a sheriff under an execution, as is the case in several states, it is not strictly a ministerial sale and partakes of the nature of a judicial sale. Distinguishing Characteristics of an Execution Sale. § 16. The distinguishing characteristics of an exe- cution sale are, that the writ is a general authority of and command to the officer to make the amount of money therein designated by sale of property belonging to the execution debtor. By the writ the sheriff is commanded to seize and sell the whole, or any part, or so much of the debtor's prop- erty as may be necessary to make the required amount, and no particular piece or article of property is ever mentioned or designated, while in a strict judicial sale, whether of real or personal property, with which the court of chancery deals is always, in one form or another, distinctly specified in the proceedings, and the sale is made by the court at the instance of the party asking it, in conformity to a complete consum- mation of the object of the suit. On the contrary, in proceedings at common law, no prop- erty is designated from the institution of the action to the final determination thereof and the issuance of execution or fieri facias, and the terms, manner and condition of the sale are regulated by law, while in chancery the court pre- 5 66 VOID JUDICIAL AXD EXECUTION SALES. scribes the terms and manner of sale, and all proceedings thereat are regulated not by law but by the court. When Execution Sale Complete. § 1 7. At common law in a sale under peri facias, if the officer follows the law and established regulations, in seizing and selling the property, the sale is, as a rule, com- plete and valid when the property is stricken off to the high- est bidder, while judicial sales are incomplete until ratified by the court under whose order they were made. In ju- dicial sales even if the sale is made by the officer in a differ- ent manner than that directed by the court, still it is valid if approved by the court, while on the other hand, if the sale Avas made in all things in conformity to the directions of the court, the sale may vet be avoided by a withholding of con- firmation. It will at once be seen that the line of demar- cation between judicial and execution sales is, that in the former the court is the vendor and in the latter the executive officer of the court — the sheriff — is the vendor, and confir- mation is required in the one and not necessary in the other. (Noland v. Barrett. 122 Mo. 181 — 26 S. W. Rep. 602 — 43 Am. St. Eep. 572: Taylor v. Gilpin, 3 Bush. 544: Dresbach v. Stein. 41 Ohio St. 70; Dale v. Shirley. 5 B. Mon. 402: Shindel v. Keedy, 43 Md. 413; McKee v. Lineberger, 69 N. C. 217: Campbell v. Johnston, 4 Dana, 178; Forman V. Hunt. 3 Dana. 614: Andrews v. Scotton. 2 Bland. 629: Ault- man v. Seiberling, 31 Ohio St. 201.) Further Elements of Difference. § 18. There is yet another element of distinction between judicial sales and sales under writs of execution in proceedings at law, and that is that the former invariably occur in proceedings either strictly in rem or quasi in rem, which is not the case with the latter. (Wyman v. Campbell, 6 Port, 219 — 31 Am. Dee. 677; McPherson v. Cunliff, 11 S. & R. 422 — 34 Am. Dee. 642: Hudson v. Cable. 97 X. C. 26o_i S. E. Bep. 688; Reinach v. Railway Co.. 58 Fed. Eep. 33: Mohr v. Manierre, 101 U. S. 417: Elliott, v. Shuler. 50 Fed. Eep. 454: Grignon, V. Aster. 2 How. 319: Beauregard v. Xew Orleans, 18 How. 497; Floren- tine v. Barton, 2 Wall. 210.) And execution sales have been held to be affected by the statute of frauds, though judicial sales are not. (Halleck v. Guy, 9 Cal. isi — 70 Am. Dec. 643; Warfield v. Dorsey, 30 Md. 200- - 17 Am. Hep. 562; Watson v. Violett, 2 Duv. 332; Blagden v. Bradleau, 12 Ves. 466.) QUASI-JUDICIAL SALES. 67 Strictly speaking a judicial sale is made during the pen- dency of the litigation while an execution sale is made subse- quent to the termination of the suit. (Alexander v. Howe, 85 Va. 198 — 7 S. E. Rep. 218.) In execution sales the sheriff sells by the naked authority of the writ and a conformation to the Law is essential, else his sale will be irregular or void according to the materiality of his departure from the requirements of the statute. (Noland v. Barrett, 122 Mo. 181 — 26 S. W. Rep. 692 — 43 Am. St. Rep. 572; Valle v. Fleming, 29 Mo. 152 — 77 Am. Dec. 557; Evans V. Snyder, 64 Mo. 516; Henry v. McKerlie, 78 Mo. 416; Snider v. Coleman, 72 Mo. 568.) QUASI-JUDICIAL SALES. Execution Sales Required to be Confirmed. § 19. Under the definition heretofore laid down of a judicial sale, execution sales by the sheriff under writs of execution, are necessarily excluded, as a general rule, though in several states execution sales are really judicial, or at least partake of the nature of judicial sales. Among these states are Kansas, Washington, Indiana, Ohio, Oregon, North and South Dakota. (Par. 4556, Gen. Sts. Kan. 1889; § 508, vol. 2, Hill's Code of Wash.; Laws 1875 of Indiana; § 5398, Rev. Sts. 1890 of Ohio; § 296, Rev. Sts. 1892 of Oregon; § 5539, Rev. Code of N. Dak.) It would be a misnomer to call these judicial sales, but they are rather quasi-judicial. In these states the statute requires that the sale under an ordinary execution based upon a simple money judgment must be reported back to the court and must be confirmed by it. Until such report and confirmation the sale is no more complete than if it were conducted by a master in a proceeding in chancery under a decree or order of sale. Execution sales in these states are not binding until sanctioned by the court by its confirming order, which is spread upon the record. The entire proceed- ings of the officer under the writ are thus adopted by and made the proceedings of the court just as in sales in chancery. The sale is therefore surrounded with the same formalities as strict judicial sales. But the execution is devoid of any 68 VOID JUDICIAL AND EXECUTION SALES. of the essentials of an order of sale, for it is a mere direction or command on the officer to make the required amount of money out of the defendant's property. (Wilcox v. Eaben. 2G Neb. 368 — 38 X. W. Rep. 844 — 8 Am. St. Rep. 207 ; Linenwebber v. Brown, 24 Ore. 545 — 34 Pac. Rep. 475 ; O'Brien v. Gaslin, 20 Neb. 347 — 30 N. W. Rep. 274; Johnson v. Lindsay, 24 Kan. 514.) Effect of Confirming Order. § 20. But such confirmation is merely a determination of the regularity of the proceedings had under the writ, and supplies only defects and irregularities which are not in their nature jurisdictional. Hence, the confirming order can not cute inherent infirmities in the judgment whereon the writ emanated. (Real Estate Co. v. Hendrix, 2S Ore. 485 — 42 Pae. Rep. 514 — 52 Am. St. Rep. 800; Koehler v. Ball, 2 Kan. 160 — S3 Am. Dec. 541.) STATURE OF CEKTAIN OTHER SALES. Sales in Attachment Proceedings. § 21. There are certain sales arising out of mixed cases of law and equity, in which special executions are issued under statutory enactment, which are neither strictly judi- cial, as under an order in chancery, nor are they ministerial as at common law, but partaking of both, such as sales of property in suits in attachment proceedings. If the attachment suit is brought and the particular prop- erty taken under the writ, but no personal service of process is had upon the defendant, as where service is had '''in- structively by publication, and the defendant does not enter his personal appearance and plead to the action, the proceed- ings are in the nature of proceedings in rem, and the sale it would seem is of necessity a judicial one. (Griffith v. Harvester Co.. 92 Iowa, 634 — 61 N. W. Rep. 243 — 54 Am. St. Rep. 573; Sackett v. Rumbaugh, 45 Fed. Rep. 23; Damp v. Dane. 20 Wis. 419: Hawkins v. Hughes, 87 N. C. 115; Cottrell v. Thomp- son. 15 N. J. L. 344: Maxwell v. Stewart, 22 Wall. 77.) Only the Property Attached is Affected in Such Case. § 22. Tn case of attachments where jurisdiction is acquired by constructive service of process only, the judgment can be CLASSES OF JUDICIAL SALES. 69 for no more than for the condemnation of the specific prop- erty seized and directed to be sold under special execution or order of sale, for, as the court has not acquired jurisdiction of the person of the defendant no personal judgment can be rendered against him in the action. Only his property sub- jected to the jurisdiction of the court by seizure under the writ of attachment is before the court for disposition, and hence, where the statute requires the sale to be confirmed such sales are properly denominated as judicial. (land & Cattle Co. v. Frank, 148 U. S. 603 — 13 Sup. Ct. Rep. 691; Railway Co. v. Pinkney, 189 U. S. 194 — 13 Sup. Ct. Rep. 859; Beaupree v. Rrigham, 79 Wis. 436 — 48 N. W. Rep. 596; Witt v. Meyer. 69 Wis. 595 — 35 N. W. Rep. 25; Pennoyer v. Neff, 95 U. S. 714; Mining Co. v. Marsano, 10 Nev. 370; Pollard v. Wegner, 13 Wis. 569: Chandler v. Hanna, 73 Ala. 39(); McMinn v. Whelan, 27 Cat. 300; Holly v. Basa, 39 Wis. 313; Morse v. Bresby, 25 N. H. 299.) CLASSES OF JUDICIAL SALES. Three General Classes. § 23. Judicial sales are all embraced in three general classes, to-wit, (a) sales made in chancery proceedings, (b)those made in probate proceedings by administrators, ex- ecutors and guardians, when acting under the order of the court in this regard, and (c) all sales other than those already enumerated where the court orders by its judgment or decree that specific property be sold, and the sale is made in con- formity to such judgment or decree; among this latter class are sales to enforce municipal liens for street improvements, tax liens, liens of mechanics and materialmen, mortgage and ^nrlor's liens, and sales in proceedings in partition and the like; (Bonnitt v. Mining Co., 119 111. 9-7 X. E. Rep. 49S; Hamilton v. Bunn, 22 111. 259; Canal Co. v. Gordon. 6 Wall. 561; Hershey v. Hershey. IS Iowa, 24; Insurance Co. v. Goodin, 10 Ohio St. 557; Husbands v. Jones. 9 Bush. 218; Kramer v. Rebman, 99 Iowa, 114; McGraw V Bay- ard. 96 111. 146.) all in proceedings in equity for a conditional judgment, as a court of law has no power to order the sale of specific prop- erty, ' ' (McLean v. McLellan. 10 Pet. 625; Kramer v. Rebman, 9 Iowa, 114.) "0 VOID JUDICIAL AND EXECUTION SALES. having only concurrent jurisdiction, in proper cases, with a court of equity, to render judgment for the debt, to pay which equity can proceed to sell the property involved. (Penniman V. Hollis, 13 Mass. 429; Armidon v. Peek, 11 Met. 467.; Sales in Foreclosure of Mechanics' Liens in Georgia not Judicial. § 24. In Georgia it is held that a mechanic's lien is en- forcible at law, and not by suit in equity, and that equity has no jurisdiction in such cases unless there is some impedi- ment or difficulty charged to exist which would render the specific remedy given by the statute for their foreclosure una- vailable, in which case only, has equity jurisdiction. (Coleman v. Freeman, 3 Ga. 137; Pease v. Seranto, 11 Ga. 33; Powers v. Cray, 7 Ga. 206.) VOID AND VOIDABLE SALES. Distinction between Void and Voidable Sales. § 25. All execution and judicial sales commonly desig- nated as void may be divided into two general classes, within the one or the other of which all void sales must necessarily fall. There are sales void by reason of the want of authority in the court to make or enter the judgment or decree upon which, or the order of sale under which it is had, and sales based upon valid judgments or decrees, or on sufficient orders of sale which are notwithstanding all this invalid by reason of some vice or irregularity in the proceedings subsequent to the issuance of the execution or the making of the order un- der which the sale was had. It is manifestly apparent that all sales included in the latter class are not really void. But the former are unconditionally void and of no effect for any purpose and not susceptible of being validated at the instance of any one. Void and Voidable Denned. § 26. In its strict legal signification a void act is one devoid of letral force or efficacy, and as a necessary result an absolute nullity, not binding on any one nud wholly incapable of ratification, while a voidable net or deed is one which, though being subject to avoidance, cancclktion or annulment VOID AND VOIDABLE SALES. .1 by reason of some inherent defect <>r vice, has nevertheless some force or effect, and therefore not an entire nullity. A voidable act is not void in the sense of being incapable of giving rise to rights or obligations and not susceptible of confirmation or ratification, expressly or by implication, but on the contrary is capable of being ratified, after which its efficacy is equivalent to that of an original valid act. Who Bound by a Voidable Act. § 27. A voidable act is obligatory on all the world until repudiated by the person with whom it originated, or set aside by competent authority, because of its irregularity and voidable character. It may subsequently be validated in various ways, as by confirmation of a judicial tribunal, or by ratification of the party himself. The chief element of dis- tinction between a void act or deed and one merely voidable is, that every stranger may take advantage of the former, but not so with the latter. (Jackson v. Houston, 84 Tex. 622 — 19 S. W. Eep. 799; Sager v. Mead, 164 Pa. St. 125 — 30 Ati. Ecp. 284; Bennett v. Mattingly, 110 Jnd. 197 — 10 N. E. Rep. 299; Johnson v. Jouchert, 124 Ind. 105 — 24 N. E. Rep. 580; Bromley v. Goodrich. 40 Wis. 131 — 22 Am. Rep. 685; White v. Graves. 107 Mass. 325 — 9 Am. Rep. 38; Crocker v. Bellange, 6 Wis. 645 — 70 Am. Dec. 489; Allis v. Billings, 6 Met. 417 — 39 Am. Dec. 744; Somes v. Brewer, 2 Pick. 184 — 13 Am. Dec. 406; Gall v. Fyberger, 75 Ind. 98; Terrell v. Anchauer, 14 Ohio St. 80: Emmet* v. Yandes. 60 Ind. 548; Robinson v. Murphy, 69 Ala. 543; Murchison v. White, 54 Tex. 78; Lyon v. Phillips, 106 Pa. St. 57; Cummings v. Powell, S Tex. 85; Pearsall v. Chapin. 44 Pa. St. 9; Wright v. Wright, 97 Ind. 444; Ex parte Lange. 18 Wall. 163; Long v. Dixon, 55 Ind. 552; Alexander v. Nelson. 42 Ala. 462.) Void and Voidable Sometimes Indiscriminately Employed. § 28. Law writers, courts in their opinions, and legisla- tures in the enactment of statutes have, as a rule, used the terms void and voidable interchangeably; in many instances employing the former when in fact the signification of the latter was intended. Manifestly in such case void should be construed as meaning voidable •merely, and not given the meaning of the absolute quality of invalidity. Much confu- sion and uncertainty has resulted from this indiscriminate employment of these terms which mifirht have been averted bv a more careful discrimination in this regard. Accovdinclv, ?2 VOID JUDICIAL AND EXECUTION SALES. when the principle inculcated by the rule or the tenor of the provisions of a statute manifestly refer to voidable the term void is inadvertently used in many decisions of courts, in many statutes and frequently in the writings of authors. The investigator must construe these terms according to the circumstances which environ each individual transaction and ascertain the true intent. (Howard v. Turner. 155 Pa. St. 349 — 26 Atl. Rep. 753 — 35 Am. St. Rep. 883; Gibson v. Railway Co., 164 Pa. St. 142 — 30 Atl. Rep. 30S — 44 Am. St. Rep. 586; Johnson V. Insurance Co., 51 Wis. 570 — 8 N. W. Rep. 397; Richardson's Estate, 132 Pa. St. 292 — 19 Atl. Rep. 82; Brom- ley v. Goodrich, 40 Wis. 131 — 22 Am. Rep. 6S5; Lyon v. Phillips, 106 Pa. St. 57; Kearney v. Vaughn, 50 Mo. 284; Mitchell v. Parker, 25 Mo. 31.) What Meaning Attributed to Void and Voidable. § 29. The cases abundantly show that the term void does not always mean null and incapable of confirmation ; but its true meaning is always to be determined from all the lan- guage used and the intent thereby manifested in each par- ticular instance. (Waggoner v. Mann, 83 Iowa. 17 — 4S X. W. Rep. 1065; Green v. Kemp, 13 Mass. 515 — 7 Am. Dec. 169; Ellis v. Peck. 45 Iowa, 112; Crosley v. Arkwright, 2 Tenn. 605: Van Shaak v. Robbins. 36 Iowa. 201; Murchison v. White, 54 Tex. 78; Ewell v. Daggs, 108 U. S. 143 — 2 Sup. Ct. Rep. 408.) This rule is an important one in the determination of the distinction between void and voidable acts, a distinction of the highest consequences and of the utmost importance to third persons. To draw this line of demarcation between void and voidable conveyances in judicial proceedings often involves nice distinctions, and yet, in legal effect, an art or deed is never void unless it is so utterly without legal validity as to bind no one in any degree. A conveyance made in consummation of a judicial sale can not be said to be utterly void unless it is of no effect what- ever, and incapable of confirmation or ratification. (Burris v. Kennedy, 108 Cal. 331—41 Pac. Rep. 458; Boyd v. Blank- man, 29 Cal. 19 — 87 Am. Dec. 146.) Subject only to being defeated in some attack for that pur- pose, a voidable sale passes the legal title to the purchaser, DEGREES OF VOIDSTESS. 73 and the proceedings are invulnerable when assailed col- laterally. On the other hand a conveyance that is void con- veys nothing, is incapable of ratification, and its infirmity is subject to being shown in a collateral proceeding and by any one interested in the property involved. (Moody v. Mueller, 72 Tex. 035— 10 S. W. Rep. 727 — 13 Am. St. Eep. 839.) DEGKEES OF VOIDNESS. Absolute Nullities. § 30. Voidness is properly a quality divisible into three distinct degrees, all acts and deeds popularly designated as being void, must as a necessary consequence fall within one or the other of these degrees. Accordingly an act may be void to the extent that it is as if it had never taken place — an absolute nullity for all intents and purposes, binding no one, and neither creating nor conferring any rights upon any one — void in such a degree that any stranger may assert its invalidity and infirmity at any time and anywhere and take advantage of it at his liberty. This is the strict technical definition of a void act. (Ewell v. Daggs, 108 U. S. 143 — 2 Sup. Ct. Eep. 40s : Weeks v. .Bridgeman, 150 U. S. 541 — 16 Sup. Ct. Rep. 72; Burris v. Kennedy, 108 Cal. 331—41 Pac. Rep. 458; Cummings v. Powell, S Tex. 80.) Qualified Void Acts. § 31. Then an act may be void in a measure only, or for some purposes, but not so entirely without legal efficacy as to be incapable of confirmation or ratification, nor so uncon- ditionally without effect as not to afford protection to inno- cent parties to whom rights have inured thereunder; such acts are effectual until avoided by some act or proceeding, (Vogelsang v. Null, 67 Tex. 465 — 3 S. W. Rep. 451: Johnson v. In- surance Co.. 51 Wis. 570—8 N. W. Rep. 297: O'Donnell v. Clinton, 145 Mass. 461 —14 N. E. Rep. 747: White v. Graves. 107 Mass. 325 — '.) Am. Rep. 38: Cray v. Stewart, 33 Gratt. 351; Wolfe v. Davis, 74 N. C. 597; Boggs v. Howard, 40 Tex. 153.) thonevh acts and deeds are sometimes designated as void be- cause lacking the element of validity until confirmation, but such are nevertheless only voidable, because, if strictly void, no validity could be infused therein by such confirmation. M'well v. Daggs, 108 U. S. 143 — 2 Sup. Ct. Rep. 408; Weeks v. Bridgeman, 159 U. S. 541 — 16 Sup. Ct. Rep. 72.) 74 VOID JUDICIAL AND EXECUTION SALES. And lastly, an act may be void by operation of law to the extent that he who desires to avail himself of its benefits must likewise provide an adequate compensation for the en- joyment he has received. But this also falls within the de- gree of voidableness, though differing in its general nature. (Anderson v. Roberts, 18 Johns. 513 — 9 Am. Dee. 235; Boyd v. Blankman, 29 Cal. 19 — S7 Am. Dec. 146.) STATUTE OF FKAUDS. Does not Apply in Judicial Sales. § 32. By becoming a purchaser at a chancery sale a party submits himself to the jurisdiction of the court, as far as any matter relating to the sale is concerned, and to this extent becomes a party to the proceedings of sale. Acord- ingly, after the confirmation of a sale in chancery a purchase made by oral bid may be enforced notwithstanding the pur- chaser sought to be charged has not subscribed any agreement or memorandum. (Freeman v. Watkins. 52 Ark. 446 — 13 S. W. Rep. 79: Maul v. Bell- man, 39 Neb. 322 — 58 ST. W. Rep. 112; Andrews v. O'Mulvaney, 112 X. Y. 567 — 20 X. E. Rep. 374; Gregory v. Tingley, IS Xeb. 31S — 25 X. W. Rep. SS; Hildreth v. Turner, 89 Va. 858 — 17 S. E. Rep. 471; Roberts v. Smith. 26 S. E. Rep. 579; Halleck v. Guy. 9 Cal. 181 — 70 Am. Dec. 643; Fulton v. Moore, 25 Pa. St. 468; Smith v. Arnold, 5 Mason, 414; The Monte Allegre, 9 Wheat. 616.) Confirmation is an adjudication final in its nature, the contract of purchase thereafter, under the principles of res (id judicata is elossed, and the possibilities of again consider- ing a question which has been finally adjudicated i< termi- nated. It is upon this principle of law that, after judicial sales have received the sanction of the court by the entry of the proper order of confirmation, the purchaser and others are precluded from attacking the validity of the proceedings of sale, under the doctrine of the statute of frauds, for the want of an agreement, note or memorandum in writing, for the court will not allow a repudiation of its own proceedings in this manner. Under the general principles of law applicable to judicial salos in this regard, there is no sale until confirmation, and hence neither party is therefore bound, and each is at liberty STATUTE OF FRAUDS. 75 to refuse to further proceed for cause and may resist the ap- plication for confirmation. The same rule applies to pro- bate sales where confirmation is a requisite, as these arc con- sidered judicial sales. (Noland v. Barrett, L22 Mo. 181 — 26 S. W. Rep. 692 — 43 Am. St. •Re\). 572: Throckmorton v. Pence, 121 Mo. 50 — 25 S. W. Kep. S43; Estes v. Alexander, 90 Mo. 453 — 2 S. W. Rep. 414.) In some jurisdictions the authorities go still further and hold that judicial sales are not within the statute of frauds even before confirmation, and no memorandum at all is re- quired. (Halleek v. Guy, Cal. 1S1 — 70 Am. Dee. 643; Fulton v. Moore, 25 Pa. St. 468; King v. Gunnison, 4 Pa. St. 171; Roberts v. Smith, 94 Va . 250 — 26 S. E. Rep. 579; Warfield v. Dorsey, 39 Md. 299.) Administrator's Sales in Illinois within the Statute. § 33. Notwithstanding it may be said that the doctrine promulgated by a vast preponderance of judicial authority is that judicial sales are not within the statute of frauds, yet it is held in Illinois that sales of real estate by administrators arc within the provisions of the statute of frauds and per- juries, and can not be enforced in the absence of a memo- randum signed by those fiduciaries. (Bozza v. Rowe, 30 111. 198 — 83 Am. Dee. 184.) Execution Sales within the Statute. § 34. As to execution sales the authorities are conflicting upon the question as to whether or not they are within the statute. On the one hand it is contended that it is essential to the validity of the sale that it be supported by a memo- randum sufficient within the statute of frauds ; (Chapman v. Harwood, 8 Blackf. 82 — 44 Am. Dec. 736: Duval v. Waters. 1 Bland Ch. 5G9 — IS Am. Dec. 350; Jackson v. Catlin. 2 Johns. 248 — ?> Am. Dee. 415; Spenee v. Pearce, 10 G. & J. 205: Remmington v. Linthicum, 14 Pet. 84: Hunt v. Gregg, 8 Blackf. 105; Gassard v. Ferguson, 54 Ind. 519; Ruckle V. Barbour, 4s Ind. 274.) while cu the other hand it is frequently contended with mani- fest show of reason that the statute has no application what- ever to sales of real estate made under the coercive process of law, and that the mere compliance of the sheriff with the ; VOID JUDICIAL AXD EXECUTIOX SALES. requirements of the statute regulating compulsory sales is sufficient in this regard. (Armstrong v. Vroman, 11 Minn. 220 — 88 Am. Dec. 81; Hand v. Grant, 5 S. & M. SOS — 43 Am. Dee. 52S ; Xiehol v. Ridley. 5 Yerg. 63 — 26 Am. Dec. 254: Endicott v. Penny, 14 S. & M. 144: Insurance Co. v. Loomis, 11 Paige, 431; Stewart v. Garvin, 31 Mo. 36; Hageman v. Johnson, 35 Barb. 200.) In Alabama it is held that sheriff's sales under executions arc within the statute but in contemplation of law that officer is the agent of both the execution defendant and purchaser, and may, by his memorandum of the terms and particulars of the sale, satisfy the requirements of the statute. That the memorandum may be gathered from the officer's indorse- ments upon the writ returned into court, and subsequent deed executed in consummation of the sale. (White v. Farley, SI Ala. 563 — 8 So. Rep. 215; Robinson v. Garth, 6 Ala. 204 — 41 Am. Dec. 47; Jenkins v. Harrison. 66 Ala. 345.) The Author's Views. § 35. While there may be judicial expression to the effect that the statute of frauds has no application to sales under the process of law, yet it is manifest that upon principle such sales are within the statute, though it is equally evident that the memorandum need not be subscribed by the purchaser or officer, nor need any particular memorandum be made at all, the record as evidencing the sheriff's compliance with the statutory requirements in conducting the sale is sufficient to satisfy the statute, the officer in this behalf, acting as the agent of the execution debtor and the purchaser, in contem- plation of law, and is the mere instrument of the law to transfer the title from the execution defendant to the pur- chaser. To this extent therefore it is apparent that sheriff's sales under executions are within the statute of frauds. Without any written evidence of the transaction by way of record or return no sale can bo said to have taken place, as the transfer is made, not by directions from the court, but through the agency of the law, by a ministerial officer, and must of necessity be evidenced by written memorials and not merely by oral evidence. This is tho most rational rule deducible from the concensus of all judicial enunciations upon the proposition involved. DUE PROCESS OF LAW. DUE PROCESS OF LAW. 77 Comprehensive Definition Impossible. § 36. Owing to the illimitable combinations and permu- tations of circumstances which environ the multitudinous business transactions of mankind it is impossible to formu- late a definition of the constitutional guaranty of " due pro- cess of law" sufficiently comprehensive to embrace all cases which may possibly arise. Only a definition general in its nature is therefore possible of promulgation. (Lent v. Tillson. 140 U. S. 316 — 11 Sup. Ct. Rep. 825; Chauvin v. Valiton, 8 Mont. 451 — 20 Pac. Rep. 658; Davidson v. New Orleans, 96 U. S. 97; Ex parte Ulrich, 42 Fed. Rep. 5S7.) In this regard the supreme court of Minnesota recently said : " No court has ever attempted to give a complete or exhaustive definition of the term ' due process of law', for it is incapable of any such definition. All that can be done is to lay down certain general principles, and apply these to the facts of each case as they arise ". (Bardwell v. Collins, 44 Minn. 97 — 46 N. W. Rep. 315; State ex rel. Blaisdell v. Billings, 55 Minn. 467 — 57 N. W. Rep. 794.) Interpretation of the Term. § 37. Due process of law T has been interpreted as meaning that notice or summons by which a party against whom a proceeding in a court of justice is instituted is tendered his day in court, together with the right to join an issue and be heard in defense before a judgment can be pronounced against him or execution issued by means of which his prop- erty may be condemned to satisfy such judgment, (Rouse v. Donovan, 104 Mich. 234 — 62 N. W. Rep. 359 — 53 Am. St. Rep. 457 ) And again, due process of law, and law of the land, have been considered as equivalents and hence of synony- mous import, referring to general public law operating upon all the members of a community alike, under similar circum- stances. (Harding v. People, 160 111. 459 — 43 N. E. Rep. 624 — 52 Am. St. Rep. 344; Braceville Coal Co. v. People. 147 111. 66 — 35 N. E. Rep. 62 — 37 Am. St. Rep. 206; State v. Jalow, 129 Mo. 163 — 31 S. W. Rep. 7S1 — 78 VOID JUDICIAL AND EXECUTION SALES. 50 Am. St. Eep. 443; Millett v. People, 117 111. 294 — 7 N. E. Eep. 631 — 57 Am. Rep. 8C9; Merchant v. Railway Co., 153 U. S. 3S0 — 14 Sup. Ct. Rep. 894.) Notice an Essential Requirement. § 38. The proposition is axiomatic in American jurispru- dence that in order to constitute due process of law in a judicial proceeding, the party sought to he hound by judicial sentence, must have sufficient notice, either actual or con- structive, of the pendency of the proceedings against him. (Dorranee v. Raynsford, 67 Conn. 1 — 34 Atl. Rep. 706 — 52 Am. St. Rep. 266; Mining Co. v. Mining Co., 12 Colo. 46 — 20 Pac. Rep. 771 — 13 Am. St. Rep. 204; Kuntz v. Sumption, 117 Ind. 1 — 19 N. E. Rep. 474; Hutson v. Woodbridge Pro. Dist.. 79 Cal. 90 — 21 Pae. Rep. 435; Chauvin v. Valiton, 8 Mont. 451 — 20 Pac. Rep. 658 ; McEneny v. Town of Sullivan, 125 Ind. 407 — 25 N. E. Rep. 540 ; Ulman v. Mayor, 72 Md. 587 — 20 Atl. Rep. 141; Hassail v. Wilcox, 130 U. S. 493 — 9 Sup. Ct. Rep. 590; Murdock v. Cincinnati, 89 Fed. Rep. 891; Scott v. Toledo, 36 Fed. Rep. 385.) The notice required must be such as is prescribed or au- thorized by law, for notice not so authorized or prescribed is in legal effect no notice at all. and hence wholly insufficient to support the judgment of the court, (Cummings v. Stark, 138 Ind. 94 — 34 N. E. Rep. 444; Kuntz v. Sumption, 117 Ind. 1 — 19 N. E. Rep. 474.) because it is a fundamental principle of American jurispru- dence that a party must have his day in court, which he can manifestly not have in the absence of lawful notice. (Scudder v. Jones. 134 Ind. 547 — 32 N. E. Rep. 221; Railway Co. v. Railway Co., 116 Ind. 57S — 19 X. E. Pep. 440: McColhun v. Chi, 12S Ind. 304 — 27 X. E. Rep. 725; Davis v. Railway Co.. 114 Ind. 364 — 16 N. E. Rep. 639; Brosemer v. Kelsey, 106 Ind. 504 — 7 N. E. Rep. 569.) An Opportunity to be Heard Essential. § 39. When the notice' required by law has been properly given, the party to be affected by the judicial proceeding must then have an opportunity to be heard in his defense before some lawfully constituted tribunal invested with au- thority to act in the premises, as an opportunity to be so heard is absolutely indispensable to the very conception of due process of law. (People ex rel. Colcuti v. Board of Health. 140 N. Y. 1 — 35 N. E. Pep. 320; Windsor v. McVeigh, 93 U. S. 274; Stuart v. Palmer, 74 N. Y. 183.) DUE PROCESS OK LAW . ?!> Manifestly it is apparent that due process of law compre- hends not onlv notice, but also a hearing and a judicial de- termination by way of a final judgment. (Bardwell v. Collins, 44 Minn. 97 — 46 X. W. Rep. 315; State ex rel. Blaisdell v. Billings, 55 .Minn. 467 — 57 N. \Y. Rep. 794.) Power to Prescribe Notice. § 40. Subject only to constitutional inhibitions and uni- versally recognized principles and immemorial usages, if is conceded that states are empowered to prescribe what notice shall be given as well as the manner in which it must be given, in so far as its own citizens are concerned. (Lent v. Tillson, 140 U. S. 316 — 11 Sup. Ct. Rep. 825; Chavaimes v. Priestley, SO Iowa. 316 — 45 X. W. Rep. 766; Caldwell v. State, 137 U '. S. 692 — 11 Sup. Ct. Rep. 224; Slapp v. The Clyde, 44 Minn. 510 — 47 X. W. Rep. 160; Kuntz v. Sumption. 117 Ind. 1 — 19 X. E. Rep. 474; Hogle v. Mott, 62 Vt. 255 — 20 Atl. Rep. 276.) Hence, while it is unequivocally denied with great force and combatted with much energy upon principles of reason, that a state is without authority to authorize the entry of a judgment wi personam against one of its own citizens brought into court by constructive service of process only, (Smith v. Hurd, 50 Minn. 503 — 52 X. W. Rep. 922; Bardwell v. Col- lins, 44 Minn. 97 — 46 X. W. Rep. 315.) yet it is generally conceded that it may lawfully provide for constructive service of process on a resident who conceals himself to avoid the personal service of notice or can not be found, and his property may be thus lawfully bound. How- ever, it is a condition precedent that he does conceal himself so that he can not be served, or can not be found, for if he can be found by using due diligence he is entitled to personal service of process under the constitutional guaranty in the federal constitution, and that of nearly every state of the Union. If the property proceeded against is withn the jurisdiction of the court by seizure, if in an attachment proceeding, or if jurisdiction is obtained otherwise in proceedings in the fore- closure of mortgage and other liens, notice by publication to a non-resident defendant is due process of law, but the relief granted must nevertheless be limited to the specific property subjected to the jurisdiction of the court. 80 VOID JUDICIAL AXD EXECUTION SALES. (Huling v. Railway & Improvement Co.. 130 U. S. 559 — 9 Sup. Ct. Rep. 603; Lydiard v. Chute. 45 Minn. 277 — 45 N. W. Rep. 967; W 'mi- free v. Bagley, 102 X. C. 515 — 9 S. E. Rep. 198; Quarle v. Abbett, 102 Ind. 233 — 1 N. E. Rep. 476 — 52 Am. Rep. 662.) Constructive Service upon Residents and Non-residents. § 41. In Minnesota a mortgage foreclosure upon lands, where notice was had upon a resident defendant by publica- tion, under a statute authorizing constructive service of pro- cess in such cases upon resident and non-resident defendants alike, was held void, because not due process of law, as the resident defendant is entitled to personal notice, and con- structive notice in such case is tantamount to no notice at all. (Barchvell v. Collins. 44 Minn. 97 — 46 X'. W. Rep. 315; Smith, v. Hurd, 50 Minn. 503 — 52 N. W. Rep. 922.) Chapter II. Jurisdiction and General Principles Involved in Juris- dictional Inquiries — Judgments and Decrees Affect- ing Title to Land. ANALYSIS. Section 42. Meaning of Jurisdiction — Is the Tower to Hear and De- termine. 43. Upon what Dependent. 44. When Proceedings are coram non judice. 45. ■ When Proceedings are coram judice. 46. 'Three Essentials in the Eight to Adjudicate. 47.. Source of Jurisdiction — Common Law and Equitable Ju- risdiction. 48. Jurisdiction Granted by Constitutional and Statutory Provision. 49. Over the Person of Defendant. 50. Over Person of Defendant not in the State. 51. Measure of Jurisdiction: 52. — — Jurisdiction over res. 53. ■ No Jurisdiction in Appellate Court if None in Lower Court. 54. Jurisdiction over Subject-matter — How Conferred. 55. Under Unconstitutional Act. 56. 'Appearance not a Waiver of a Lack of Jurisdiction. 57. Conferred Subsequent to Institution of Suit. 58. ■ Limitation of this Jurisdiction. 59. Acquisition of Jurisdiction to Render Personal Judgment — Jurisdiction of the Person of Defendant Essential. 60. Constructive Service only Insufficient. 61. How a Minor Brought in. 62. Complainant in Court by Virtue of his Petition. 63. Irregular Process Served. 64. Process Served Wanting in Substance. 65. Defective Service and Failure of Service. 66. Actual Notice — In General. 67. Record Disclosing Service in a Particular Manner. 68- Leaving Summons at Last Place of Residence Actual Service. ■ 69. Pleadings Showing Absence or Non-residence of De- fendant. 6 82 VOID JUDICIAL AND EXECUTION SALES. Section 70. Actual Notice — Notice to Minors. 71. ■ Suits against Husband and Wife. 72. In Proceedings of Sale by Administrators. 73. Service of Process and the Return — Effect when Served by Unauthorized Person. 74. Service Required to be Made by Particular Officer. 75. Service by Party not Valid. 76. ■ Service by Private Person. 77. Written Admission of Service of Process. 78. Personal Service Outside of the State. 79. Officer's Return of Service Conclusive. SO. When Return not Conclusive. 81. Defendant Brought into State by Fraud or Force. 82. General Appearance by Defendant and its Effect — Ap- pearance Defined. 83. Answer Stricken as Insufficient. 84. General Appearance Waives Defect in Process. 85. Waives Jurisdictional Defect in Issuing Proce-s. 88. Appearance by Infants. 87. Effect of Special Appearance — In Cases where Statute does not Prohibit it. 88. Statutory Rule in Some States. 89. Application to Remove from State to Federal Court. 90. Unauthorized Appearance by Attorney — Exposes Judg- ment to Collateral Attack. 91. — Rule of Collateral Impeachment Denied. 92. Jurisdiction to Render Judgment, in rem — Seizure and Notice. 93. Sales by Guardians of Ward's Lands. 94. Sale of Perishable Property Pendente lite. 95. Only the Proptrty actually Before the Court Affected. 96. Judgment must be Rendered on Cause of Action Stated. 97. Foreclosure of Mortgage and Other Liens. 98. Decree Assigning Residue of Estate of a Decedent. 99. Attachment of Lands in Justice's Court. 100. Jurisdiction as Dependent on Amount in Controversy — Amount in Excess Renders Judgment void. 101. No Jurisdiction on Appeal when None Below. 102. Amount below Legal Minimum. 103. Constructive Service of Process or Notice — Constructive Service of Notice Defined. 104. Not Available in Purely Personal Actions. 105. On Resident Defendants. 106. Is in Derogation of Common Law. 107. Essential Jurisdictional Facts must Appear. 108. In what ( ases Permissible. 109. Amendment of Complaint. MEANING OF JURISDICTION. 83 Section 110. Constructive Service of Process or Notice — What Affida- vit for Publication Musi Show. 111. -Strict Rule Prevails in gome States. 112. Liberal Rule Elsewhere. 113. Probative Facts must Appear. 114. Facts tnferentially stated < >nly. 115. Affidavit must show Action to be one Mentioned in Statute. 116. Affidavit on Information and Belief. 117. Object and General Nature of the Action. 118. Affidavit must be Filed before the Publication. 119. Relation of Affidavit to Order of Publication. 120. False Statement as to Cause of Action. 121. — — -Affidavit and Complaint. 122. Verified Complaint Must be Filed. 123. Facts authorizing Constructive Service shown by Return. 124. Suits against Defunct Corporations in Michigan. 125 Order of Publication must Contain Essential Par- ticulars. 126. Issued by Clerk without Order from Court. 127. Misnomer of Plaintiff or Defendant. 128. Order Providing for Unauthorized Service. 129. Order Abridging the Time for Appearance. 130. Publication for too Short Period. 131. — — -Mere Irregularities in Notice not Fatal. 132. Death of Defendant Pending Publication. 133. One Publication on Non-judicial Day. 134. -Unknown Defendants Served Constructively. 135. • Personal Service Outside of the State. 136. Affidavit made by Unauthorized Person. 137. Publication against Unknown on Petition against Known < hvner. 138. Disqualification of Judge — Renders Proceedings Invalid. 139. Statute Contravened makes Proceedings Void. 140. Loss, Excess and Suspension of Jurisdiction — Jurisdic- tion Generally Continues until Judgment. 141. Lost by Appeal or Removal. 142. -Lost during Intervals between Regular Terms. 143. Non-attendance of Judge. 144. Court sitting Outside of County. 145. Jurisdiction Exhausted over Subject-matter. 146. Judgment Beyond the Issues. 147. Justice of the Peace absent on Day of Trial. 148. Other Fatalities in Justice's Proceedings. 149. Effect of Want of Jurisdiction — Makes the Judgment and Proceedings Void. 150. Administration on Estate of Living Person. 84 VOID JUDICIAL AND EXECUTION SALES. Section 151. Effect of Want of Jurisdiction — Judicial Authority can not be Delegated. 152. Face of Record showing a Want of Jurisdiction. 153. Only Part of Defendants Summoned. 154 . Because Debt barred by Statute of Limitations 155. Nature of Sales in Probate of Lands of a Decedent — Fundamental Fact is Death of Owner. 156. Proceedings in rem. 157. Guardian's Sales considered both Adversary and in rem. 158. Are adversary Proceedings. 159. Probate Sales when there are no Debts — Adjudication of the Court is Conclusive. 160. Finding of Probate Court only prima facie. 161. Effect of Failure to Appoint Guardian ad litem — Gen- erally Considered but an Irregularity. 162. Is a Fatal Infirmity. 163. Sale of Lands located in Another County — Statutory Requirements as to Institution of Suit. 164. Objection to Suit brought in Wrong County may be Waived. 165. Probate Sale of Lands in Another County. 166. Death or Disability of the Parties or Either of Them — Death of sole Plaintiff or Sole Defendant. 167. Not suggested by Record makes Judgment Voidable only. 168. One of Several Defendants dies Before Judgment. 169. Death of Sole Defendant Renders Judgment void. 170. Death of Defendant pending Publication of Notice. 171. Effect of the Death of Sole Plaintiff. 172. Jurisdiction of Minors and Incompetents. 173. Decree vacated after Sale and its Effects. 174. Actions against Married Women. 175. Instances of Want of Jurisdiction — Title to Land in An- other State. 176. Partition and Mortgage Foreclosure of Land in An- other State. 177. Decree holding Conveyance in Another State Fraud- ulent. 178. Sale by Administrator of living Owner's Lands. 179. Other Instances. 180. Principles involved in Jurisdictional Inquiries — Presump- tions in Favor of Jurisdiction. 181. Recital of Jurisdictional Facts Insufficient. 182. No Presumptions obtain in Direct Attack. 183. Presumptions where Jurisdiction is Acquired by Con- structive Notice. 184. Extent of the Rule of Presumptions. MEANING OF JURISDICTION. 85 Section 185. Principles involved in Jurisdictional Inquiries — Presump- tions nol Applicable to Inferior Courts. 186. Courts of Probate Jurisdiction. 187. Conclusiveness of Judgments and Decrees — Parties and Privies. 188. Void as to One only of Several Parties. 189. In what Capacity Judgment Conclusive. 190. Suit commenced after Defendant's Death. 191. Proceeding against Unknown Heirs. 192. Upon what Matters Conclusive. 193. — — -Who are Privie-. 194. Effect where Judgment or Decree is Void. 195. Judgments Outside the l^sue- not P> nding. 196. Actions in personam and Proceedings in rem Dis- tinguished. 197. Questions of Title Conclusively Determined. 198. Misconception in Form of Proceeding. 199. Conclusiveness of Judgments as to Creditors. 200. What Creditors may Avoid a Judgment. 201. Conclusiveness of Erroneous Judgment where Sale made before Reversal or Vacation — Sale to Stranger without Notice. 202. Judgment Creditor as Purchaser. 203. Sales subsequent to Expiration of Judgment Lien — Is as if no Lien of Judgment had ever Existed. 204. Execution issued Before its Expiration Preserves Lien. 205. Effect and Nature of Judgment Lien — Creature of Stat- ute and a General Lien. 206. • Upon what Property Lien Attaches. 207. —When the Lien Attaches. 208. ■ Lien attaches to Lands conveyed in Fraud of Cred- itors. MEANING OF JURISDICTION. Is the Power to Hear and Determine. § 42. By constitutional provision or statutory enactment there is conferred upon judicial tribunals certain power to take cognizance of the subject-matter over which the litiga- tion has risen, or which is involved therein, and of the parties to the suit, when properly brought before them, and to hear and determine the issues made by the parties litigant, and to adjudicate and exercise judicial power over the litigating parties, according to established rules and principles of law, upon issues made in the controversy pending, whether the 86 VOID JUDICIAL AND EXECUTION SALES. same be of law or of fact, or both law and fact. From the very nature of judicial power, any act or movement of a court, legally made, is the exercise of jurisdiction as a matter of necessity. (State v. Nelson, 21 Neb. 572 — 32 N. W. Rep. 589; Perry v. Morse, 57 Vt. 509; Ex parte Bennett, 44 Cal. 84; Vaughn v. Congdon, 56 Vt. Ill; Smiley v. Sampson, 1 Neb. 56; Simmons v. Saul, 138 U. S. 439 — 11 Sup. Ct. Rep. 369; Goodman v. Winter, 56 Ala. 410; Lantz v. Maffett, 102 Ind. 233 — 26 N. E. Rep. 195; Spoors v. Coen. 44 Ohio St. 492 — 9 N. E. Rep. 132; Hope v. Blish, 105 Mo. 85 — 16 S. W. Rep. 595.) Upon what Dependent. § 43. Jurisdiction does not depend upon the particular state of facts disclosed in the controversy presented, nor is the existence of a good cause of action absolutely essential to vest jurisdiction. (Reed v. Reed, 107 N. Y. 545 — 14 N. E. Rep. 442; Ex parte Bigelow, 113 U. S. 329 — 5 Sup. Ct. Rep. 542; Hunt v. Hunt, 72 N. Y. 217—. 28 Am. Rep. 129; Pullen v. Kinsinger, 2 Abb. U. S. 103; Howell v. Mills, 56 N. Y. 226; Sheldon v. Newton, 3 Ohio St. 494; Cromwell v. Hull, 97 N. Y. 209: Voorhees v. Bank, 10 Pet. 449; Sullivan v. Sullivan, 66 N. Y. 37; Thomas v. People, 107 111. 517 — 47 Am. Rep. 458.) Therefore, jurisdiction is the power to hear and determine the matter in controversy, and the acts and proceedings of the court are coram judice whenever this power has been properly invoked. (Hope v. Blair, 105 Mo. 85 — 16 S. W. Rep. 595 — 24 Am. St. Rep. 366; Van Sant v. Butler, 19 Neb. 351 — 27 N. W. Rep. 299; Parker v. Kuhn, 19 Neb. 394 — 27 N. W. Rep. 399; Smiley v. Sampson, 1 Neb. 56; Franklin v. Kelley, 2 Neb. 79.) When Proceedings are Coram non Judice. § 44. Manifestly if the power to hear and determine a particular case is wanting in the tribunal under the law of the land, so also as a necessary consequence, jurisdiction of the case is wanting, and all of its acts and proceedings are coram non judice and absolutely null and void, vesting no rights in any one and binding no one. (Pullen v. Hillman, 84 Me. 129 — 24 Atl. Rep. 795 — 30 Am. St. Rep. 340; Rodgers v. Evans, 8 Ga. 143 — 52 Am. Dec. 390; Love joy v. Albee, 33 Me. 414—54 Am. Pec. 630; Horner v. Bank. 1 Ind. 130 — 48 Am. Dec. 355; Miller v. BrinkerhofT, 4 Denio. 118 — 47 Am. Dee. 242; MEANING OF JURISDICTION. 87 Power9 v. Mitchell, 75 Me. 364; United States v. Arredondo, 6 Pet. 691; Merrier v. Chaee, 9 Allen, 240; Elliott v. Piersol, 1 Tetera, 328; Ex parte Cohen, 6 Cal. 31S.) If the fact of the want of jurisdiction in the court to render the judgment affirmatively appears upon the face of the record, it is void and may be impeached by the tribunal in which it was rendered of its own motion, or by any party interested who may see fit to move the court to impeach it. But to avoid a judgment of a court of general jurisdiction for want of jurisdiction the jurisdictional defects must affirmatively appear on the record, when assailed collaterally. (Ex parte Gray. 4S S. C. 566 — 26 S. E. Rep. 786; Seaman v. Galligan, 8 S. Dak. 277 — 66 N. W. Rep. 458; Hervey v. Edmunds, G8 X. C. 243; Graham v. Ringo, 67 Mo. 324; In re College, 11 R. I. 472; Franks v. Loekey. 45 Vt. 395; Forman v. Carter, 9 Kan. 674.) When Proceedings are Coram Judice. § 45. But if the power to hear and determine a particular case does exist, and when the actual jurisdiction of the par- ticular case or subject-matter thereof is conferred upon the court in the manner and form as established by the laws in force in the territorial limits wherein the court is established, and when this has been properly clone its proceedings and judgment are coram judice. However, before this power can be said to have vested in the court it must appear that the law has given the tribunal capacity to entertain the complaint made against the defend- ant, or the thing sought to be charged or affected, and that such complaint has actually been preferred, and that the person or thing has been properly brought before the court to answer the allegations therein set forth. Therefore, when all this appears to have been done, jurisdiction exists, and the right to hear and determine is perfected, and thereafter all acts and proceedings in the case are but the exercise of juris- diction, and it is immaterial whether they are rightfully or wrongfully done, correctly or erroneously made, it is wholly immaterial as to the validity, force or effect of the final de- cree or judgment that may be therein rendered when col- laterally sought to be impeached. The court being invested with the power to hear and de- termine the rights of the parties litigant, no irregularities in 88 VOID JUDICIAL AND EXECUTION SALES. the exercise of that power will nullify its judgment while standing unreversed by an appellate court. (Barnard v. Barnard, 119 111. 92 — 8 N. E. Rep. 320; Lumber Co. V. Allen, 52 Kan. 795 — 35 Pac. Bep. 781; Wood v. Blythe, 46 Wis. 650 — 1 N. W. Bep. 341; Heckman v. Adams, 50 Ohio St. 305 — 34 N. E. Bep. 155; Bank v. Peters, 51 Kan. 62 — 32 Pac. Bep. 637; Railway- Co. v. Belle Centre, 4S Ohio St. 273 — 27 N. E. Bep. 464; Shippen v. Kimball, 47 Kan. 173 — 27 Pac. Bep. 813 — Spoors v. Coen, 44 Ohio St. 497 — 9 N. E. Bep. 132; Larimer v. Knoyle, 43 Kan. 338 — 23 Pac. Rep. 487; Cooper v. Sunderland, 3 Iowa, 114 — 66 Am. Dec. 52; Paul v. Smith, 82 Ky. 451; Plume v. Howard, 46 N. J. L. 211; Rowe v. Palmer, 29 Kas. 337; Grignon v. Astor, 2 How. 338; United States v. Arredondo, 6 Pet. 691; Rhode Island v. .Massachusetts, 12 Pet. 659; Sheldon V. Newton, 3 Ohio St. 494.) Three Essentials in the Right to Adjudicate. § 46. The right to adjudicate in a particular case or con- cerning the subject-matter in a given case comprehends three essentials, each of which is of vital importance and absolutely indispensable to the validity of the adjudication. The law must have conferred upon the court the power to act, the contending litigants or the subject-matter or thing in litiga- tion must have been properly brought before the tribunal, and the adjudication in substance and effect must not exceed the latitude of the issue made. In this regard the supreme court of Arkansas in a late case has said : " Jurisdiction may be defined to be the right to adjudicate concerning the sub- ject-matter in the given case. To constitute this there are three essentials. First. The court must have cognizance of the class of cases to which the one to be adjudged belongs. Second. The parties must be present. And, Third. The point decided must be in substance and effect, within the issue. A judgment upon a matter outside of the issue, must, of necessity, be altogether arbitrary and unjust, as it con- cludes a point upon which the parties have not been heard ". (Falls v. Wright. 55 Ark. 562 — IS S. W. Rep. 104* — 29 Am. St. Rep. 74.) However, it has been held that a judgment rendered on a non-judicial day, as on a Sunday, is not merely erroneous for that reason, but is an absolute nullity. (Stylos v. Harrison, 99 Tenn. 12R — 41 S. W. Rep. 333: Davis v. Fish, 1 G. Greene, 406 — 48 Am. Dec. 391: Lampe v. Manning, 38 Wis. 673; Houghtaling v. Osborn, 15 Johns. 119; Blood v. Bates. 31 Vt, 147; Chapman v. State. 5 Blackf. 111.) SOURCES OF JURISDICTION. 89 SOURCES OF JURISDICTION. Common Law and Equitable Jurisdiction. § 47. Jurisdiction may properly be said to be divided into two grand divisions, namely the common law and equitable. Once these were kept religiously separate and distinct, not only with respect to the courts wherein they were adminis- tered, but also with respect to the mode and manner of procedure, as well as the remedies to be administered, they now are much intermingled by constitutional provision and statutory enactments. The civil codes established in the states have very largely influenced and modified, not only the remedies to be enforced, but also the manner of their en- forcement, obliterating much of the ancient distinction be- tween these two departments of jurisdiction. Nevertheless there is an element of radical distinction be- tween common law rights and equitable rights and remedies. Whether proceeding under the old or the new procedure, the court in either instance must be guided by established rules and precedents. (Sell v. West, 125 Mo. 621 — 28 S. W. Rep. 969 — 46 Am. St. Rep. 508.) Jurisdiction Granted by Constitutional and Statutory Provi- sions. § 48. Courts are generally invested with jurisdiction by constitutional and statutory provisions, and thereby em- powered to hear and determine certain classes of causes aris- ing between the litigating parties, and to enforce their judg- ments thus rendered. (Jones v. United States, 137 U. S. 202 — 11 Sup. Ct. Rep. 80; Withers v. Patterson, 27 Tex. 491 — 86 Am. Dec. 643; Belcher v. Cham- bers, 53 Cad. 635; United States v. Cruikshank, 92 U. S. 564; Railway Co. v. Rawlins, SO Tex. 579 — 16 S. W. Rep. 430; Springer v. Shavender, 118 N. C. 33 — 23 S. E. Rep. 976 — 54 Am. St. Rep. 708; Hope v. Blair. 105 Mo. 85 — 16 S. W. Rep. 595 — 24 Am. St. Rep. 366; Scott v. McNeal, 154 U. S. 34 — 14 Sup. Ct. Rep. 1108; Melia v. Simmons, 45 Wis. 334 — 30 Am. Rep. 746; Thomas v. People, 107 111. 517 — 47 Am. Rep. 458.) Manifestly a condition precedent to the acquisition of au- thority over the parties is jurisdiction of the subject-matter, 90 VOID JUDICIAL AND EXECUTION" SALES. which is granted by the legislative power which organized the judicial tribunal itself, and when thus granted, juris- diction is invoked so as to authorize judicial action, upon the presentment of some declaration, petition or complaint, either orally or written, as by law required. While juris- diction over the subject-matter is of paramount consideration in the determination of the matter in issue in a judicial pro- ceeding, its absence invariably resulting in a judgment un- conditionally void, and a sale thereunder an absolute nullity, each being subject to collateral impeachment for such in- herent infirmity, (Towr of Wayne v. Caldwell. 1 S. Dak. 483 — 47 N. W. Rep. 547 — 36 Am. St. Eep. 750; Beckett v. Cuennin, 15 Colo. 281 — 25 Pac. Rep. 167 — 22 Am. St. Eep. 309; Manufacturing Co. v. Beyer, 74 Wis. 210 — 42 N. W. Rep. 232 — 17 Am. St. Rep. 131; Sporrs v. Coen, 44 Ohio St. 497 _ 9 K". E. Eep. 132: Frankell v. Satterfield, 9 Houst. 201 — 19 Atl. Rep. 898; Wall v. Wall, 123 Pa. St. 545 — 16 Atl. Rep. 598; Callen v. Ellison, 13 Ohio St. 446 — b2 Am. Dec. 448.) yet even if such jurisdiction over the subject-matter is vested in the court, the further jurisdiction of the person or thing against which the judgment in its effect operates is an indis- pensable requirement, the want of which vitiates both judg- ment and all subsequent proceedings founded thereon. (Furgeson v. Jones, 17 Ore. 204 — 20 Pac. Rep. 842 — 11 Am. St. Rep. 808; Adams v. Cowles, 95 Mo. 501 — 8 S. W. Rep. 711 — 6 Am. St. Rep. 74: White v. Foot Lumber Co., 29 W. Ya. 3S5— 1 S. E. Rep. 572 — 6 Am. St. Rep. 650; Stewart v. Anderson, 70 Tex. 588 — 8 S. W. Rep. 295; Ex parte Sawyer, 124 U. S. 200 — 8 Sup. Ct. Rep. 482; Scott v. Noble. 72 Pa. St. 119 — 13 Am. Rep. 663.) Over the Person of Defendant. § 49. Jurisdiction over the subject-matter is exclusively conferred by law, while jurisdiction of the person of the de- fendant may be conferred by consent when the former exists. But if jurisdiction is not acquired over the person by consent, nor obtained by the method designated in the statute for its acquisition, the judgment thus rendered against a defendant is coram non judice and void, furnishing no pretense of support to a sale thereunder. An appearance for the special purpose of objecting to the jurisdiction of the court will not be sufficient, under the weight of authority, to validate the proceedings. SOURCES OF JURISDICTION. 91 (Meyer v. Brooks, 29 Ore. 203 — 44 Pac. Rep. 2S1 — 54 Am. St. Rep. 790; Mining Co. v. Mining Co., 12 Colo. 46 — 20 Pac. Kep. 771 — 13 Am. St. Rep. 204; Landon v. Townshend, 112 N. Y. 93 — 19 X. E. Rep. 424 — 8 Am. St. Rep. 712: Belknapp v. Charlton, 25 Ore. 41 — 34 Pac. Rep. 758; Nelson v. Campbell, 1 Wash. St. 201 — 24 Pac. Rep. 539; Roller v. Reid. S7 Tex. 09 — 20 S. W. Rep. 1060; Green v. Green, 42 Kan. 654 — 22 Pac. Rep. 730.) Jurisdiction not being- conferred by consent the paramount question of inquiry is, whether it can be acquired by the court without such consent, under the forms of procedure in this regard provided by law The efficacy of judicial pro- cess according to universally acknowledged principles is re- stricted to the territorial limits over which the jurisdiction of the court out of which it emanates extends, and therefore, if jurisdiction is sought to be acquired by the service of such process upon the defendant in person, it must be made within such territorial limits, if a personal judgment is sought to be obtained. Upon principle the state or sovereignty is prohibited from extending its process beyond the territorial borders of its own geographical confines. (Griffith v. Harvester Co.. 92 Iowa, 034 — 01 N. W. Rop. 243 — :,4 Am. St. Rep. 573: Wilson v. Railway Co.. 108 Mo. 5S8 — 18 S. W. Rep. 286 — 32 Am. St. Rep. 024; Gary v. Aid Association, 87 Iowa, 25 — 53 X. W. Rep. 10S0; Kelly v. Insurance Co., 82 Iowa. 137 — 47 X. W. Rep. 986; Stewart v. Anderson. 70 Tex. 588 — 8 S. W. Rep. 295: Pennoyer v. Xeff. 95 U. S. 714; Galpin v. Page. IS Wall. 350; Lutz v. Kelly, 47 Iowa, 307; Schwinger v. Hickok, 53 X. Y. 2S0.) Over Person of Defendant not in the State. § 50. While a slate admittedly has jurisdiction over per- sons and property within its borders so as to subject either or both to its judicial powers, such jurisdiction or power does not extend to persons or property not within the state. Judicial power flowing from the state, it must, like the "rant of legislative power, cease with the jreotrrnphical boundary of the state, as a necessary consequence. (Pe Meli v. De Meli, 120 X. Y. 485 — 24 X. E. Pep. 996 — 17 Am. St. Rep. 052: Pe T.a Montanya v. Pe La Montanya. 112 Cal. 101 —44 Pac. Rep. 345 — 53 Am. St. Pep. 165; Catron v. Railway Co.. 59 Iowa, 14^ — 13 X. W. Rep. 07: Quinn v. McMahon. 40 111. App. 593 — 29 X. P. Rep. 731; State v. Railway Co.. 70 Iowa. 102 — 30 X. W. Pep. 39s : Short v. Galway, 83 Ky. 501 — 4 Am. St. Rep. 168; McEwan v. Zimmer, 38 92 VOID JUDICIAL AND EXECUTION SALES. Mich. 765 — 31 Am. Eep. 332; Poindexter v. Burwell, 82 Va. 507; Gibson V. Burgess. 82 Va. 650; Sturgis v. Fay, 16 Ind. 429 — 79 Am. Dec. 440.) As has been before stated, within its own territory every state or nation possesses an exclusive jurisdiction according to a fundamental principle of international jurisprudence indispensable for the maintenance of the distinctive sover- eignty. As between the states of the American Union any- thing less than this would be absolutely inconsistent with their equality. (Trust Co. v. Telegraph Co., 55 Conn. 334 — 11 Atl. Rep. 184 — 3 Am. St. Rep. 53 ; Lindly v. O'Reilly, 50 N. J. L. 636 — 15 Atl. Rep. 379 — 7 Am. St. Rep. 802; Wimer v. Wimer, 82 Va. 890 — 3 Am. St. Rep. 126; Dillard v. Iron Co., 82 Va. 734 — 1 S. E. Rep. 124.) Measure of Jurisdiction. § 51. The rule is ancient and unquestioned that in all statutory proceedings the measure of the jurisdiction or power of the court is the statute itself, and such power as is provided in the statute may be exercised, and such only. If this be transcended the judgment and subsequent proceedings thereunder are void, and subject to successful collateral im- peachment. (Railway Co. v. Telegraph Co., 112 U. S. 306 — 5 Sup. Ct. Rep. 168; Smith v. Westerfield, 88 Cal. 374 — 26 Pac. Rep. 206; Murray v. Surety Co., 70 Fed. Rep. 341; Reynolds v. Stockton. 140 U. S. 254 — 11 Sup. Ct. Rep. 773 ; United States v. Walker, 109 U. S. 258 — 3 Sup. Ct. Rep. 277 ; Hatch v. Ferguson, 68 Fed. Rep. 45; Windsor v. McVeigh, 93 U. S. 274.) Jurisdiction of the Res. § 52. To acquire jurisdiction over the rrs necessitates an actual seizure of the thing under the process of the court within the territorial limits of its jurisdiction. (Cooper v. Reynolds, 10 Wall. 30S; Galpin v. Page, 18 Wall. 350; Pennoyer v. Xeff. 95 U. S. 714.) But by the seizure alone the court has not acquired full au- thority to pass upon the question of forfeiture of the seized property absolutely. Before such authority is complete some notification of the proceedings, other than that arising from tho mero fact of seizure alone, is essential, as by monition or publication of notice. (Hassal v. Wilcox. 130 U. S. 493 — 9 Sup. Ct. Rep. 590; Windsor v. McVeigh, 93 U. S. 279.) JURISDICTION OYER SUBJECT-MATTER. 9:5 In proceedings properly designated as quasi in rem, such as the foreclosure of mortgage and other liens and suits to quiet title and to remove a cloud, actual seizure is not neces- sary, the property being broughl before the court by the com- plaint or petition, and when the proper statutory notice is given to the absent defendant owner the jurisdiction of the court to pronounce judgment is complete. No Jurisdiction in Appellate Court if None in Lower Court. § 53. If the court wherein the action is originally in- stituted is without jurisdiction none is conferred upon the appellate court by an appeal to that court, (Osgood v. Thurston, 23 Pick. 110; Baker v. Chisholm, 3 Tex. 157.) unless the appellate court has concurrent jurisdiction with the lower court of the class of cases and the parties appear in the former court after the appeal is taken, thus waiving the objection. JURISDICTION OVER SUBJECT-MATTER. How Conferred. § 54. Jurisdiction over the subject-matter is conferred ex- clusively by the law itself, and can not be acquired by any act or consent of the litigating parties. The proposition, founded upon important considerations of public policy, is fundamental and axiomatic, that when the statute law or constitution has not vested the tribunal with jurisdiction over the subject-matter of a legal controversy, notwithstanding the express consent and solicitations of the parties to confer jurisdiction, and despite their acquiescence by failure to urge objections, the judgment ultimately rendered and all pro- ceedings had thereunder are utterly void, and open to re- pudiation in a collateral proceeding as well as direct attack, by the party affected thereby, because the court transcended its authority in determining the matter in controversy. (Town of Wayne v. Caldwell. 1 S. Dak. 483 — 47 X. W. Rep. 547—36 Am. St. Rep. 750; Block v. Henderson, 82 Ga. 23 — 8 S. E. Rep. 877 — 14 Am. St. Rep. 13S; Shrader v. Hoover. 87 Iowa. 654 — 54 N. W. Rep. 463; Telepraph Co. v. Taylor, 84 Ga. 40S — 11 S. E. Rep. 396; Railway Co. v. Cihbons, 35 W. Va, 57 — 12 S. K. Rep. 1003; Lansing v. Railway Co., 85 Iowa. 215 — 52 N. W. Rep. 195; Oreutt v. Hanson, 71 Iowa, 514 — 32 N. W. Rep. 482; Cerro Gordo 94 YOID JUDICIAL AND EXECUTION SALES. County v. Wright, 59 Iowa, 485 — 13 N. W. Rep. 645; Swiggert v. Harber, 4 Scam. 364 — 39 Am. Dec. 41S ; Beverly v. Burke, 9 Ga. 440 — 54 Am. Dec. 351; Bent v. Graves, 3 McCord, 280 — 15 Am. Dec. 632; Roy v. Horsley, 6 Ore. 382- — 25 Am. Rep. 537; Railway Co. v. Sandoval Co.. Ill 111. 32; Santom v. Ballard, 133 Mass. 464.) Under Unconstitutional Act. § 55. As the grant of jurisdiction is exclusively derived from competent authority, either legislative or constitutional, if the jurisdiction is exercised under an act which is uncon- stitutional the judgment is manifestly an absolute nullity, and any sale of property thereunder utterly void. (Ex parte Giambonini, 117 Cal. 573 — 49 Pac. Rep. 732; Johnson v. Jones, 87 Ga. 85 — 13 S. E. Rep. 261 ; In re Drainage District, 34 La. Ann. 97; Irvin's Succession, 33 La. Ann. 63; Reed V. Wright, 2 G. Greene, 15; Dowe v. Johnson, 100 U. S. 158; Sculley v. Lowenstein, 56 Miss. 652.) Such a judgment has no more efficacy and such a sale is as void as if made under the proceedings of a de facto court, which manifestly has no existence and whose judgment can be nothing but a nullity. (Gorman V. People. 17 Colo. 596 — 31 Pac. Rep. 335 — 31 Am. St. Rep. 320; Norton v. Shelby. 118 U. S. 425 — 6 Sup. Ct. Rep. 1121; Hildreth v. Mclntire, 1 J. J. Marsh. 206— 19 Am. Dec. 61.) Appearance not a Waiver of a Lack of Jurisdiction. § 56. Accordingly a lack of jurisdiction of the subject- matter is not waived by a voluntary appearance in the suit because the defect is an inherent and radical one not obviated by the agreement or consent of the parties. For this reason objection to the jurisdiction over the subject-matter is always in time. (Moore v. O'Barr, 87 Ga. 205 — 13 S. E. Rep. 464; Bigelow v. Loan & Trust Co., 164 111. 197 — 45 N. E. Rep. 512; Robertson v. Wheeler, 162 111. 566 — 44 N. E. Rep. 870; Sanders v. Pierce. 68 Vt. 46S — 35 Atl. Rep. 377; Coleman's Appeal, 75 Pa. St. 441; Stoughton v. Mott, 13 Vt. 175; Mannhart v. Sodcrstrom, 1 Binn. 13S.) If the laws have conferred jurisdiction over the subject- matter upon the court, jurisdiction of the parties may be ac- quired by consent or voluntary general appearance in the action. (Edwards v. Smith, 16 Colo. 539 — 27 Pac. Rep. 809; Cofrede v. Judge, 79 Mich. 332 — 44 N. W. Rep. 623.) JURISDICTION TO RENDEE PERSONAL JUDGMENT. 95 Conferred Subsequent to Institution of Suit. § 57. When jurisdiction over the subject-matter is want- ing at the time an action is instituted, the proceedings are void notwithstanding the fact thai jurisdiction is subse- quently conferred upon the court by law over the particular class of cases. Such error is radical in its nature and in- curable. (Mora v. Kuzac, 21 La. Ann. 754: Edward- v. Marin. 28 La. Ann. 567; C'arin-y v. Taylor. 4 Kan. 151.) Limitation of This Jurisdiction. § 58. Jurisdiction arising from constitutional provisions and legislative enactments, as a necessary corollary, is limited to the geographical confines within which such constitution and laws are operative. Accordingly, real estate situated in one state is not subject to compulsory disposition under the coercive process of the law emanating from a judgment of a court of another state. (Lindley v. O'Reilly, 50 N. J. L. 636 — 15 Atl. Rep. 370 — 7 Am. St. Rep. 802; Brown v. Irwin, 47 Kan. 50 — 27 Pae. Rep. 1S4; Wimer v. Wimer, 82 Va. 890 — 3 Am. St. Rep. 126; Campbell v. West, 86 Cal. 197 — 24 Pae. Rep. 1000.) ACQUISITION OF JURISDICTION TO RENDER PERSONAL JUDGMENT. Jurisdiction of the Person of Defendant Essential. § 50. While jurisdiction over the subject-matter is con- ferred by law, judicial proceedings resulting in a pergonal judgment are nevertheless void unless jurisdiction of the person of the defendant has also been properly acquired be- fore the rendition of the judgment. Jurisdiction over the defendant depends upon his volun- tary appearance in the action, (Ferguson v. Oliver, 99 Mich. 161—58 N. W. Rep. 43 — 41 Am. St. Rep. 593; Corbitt v. Timmermann, 95 Mich. 5S1 — 55 N. W. Rep. 137 — 35 Am. St. Rep. 586; Haussman v. Burnham, 59 Conn. 117 — 22 Atl. Rep. 1065 — 21 Am. St. Rep. 74: Childs v. Lauterman, 103 Cal. 387 — 37 Pae. Rep. 3S2 — 42 Am. St. Rep. 121; Bank v. Insurance Co., 83 I owaj 491 — 50 N. W. Pep- 53 — 32 Am. St. Pep. 316: Kenney v. Green, 13 PI. 432 — 54 Am. Dec. 439.) or if he does not so appear, then by the service of the process of the law upon him within the state or territorial jnrisdic- 96 VOID JUDICIAL AND EXECUTION SALES. tion of the court whereby he is admonished to appear and defend the cause of action pending in the judicial tribunal out of which the process emanated. (Mining Co. v. Mining Co., 12 Colo. 4G — 20 Pac. Rep. 771 — 13 Am. St. Rep. 204; White v. Johnson, 27 Ore. 282 — 40 Pae. Rep. 511 — 50 Am. St. Rep. 726; Hobbey v. Bunch, 83 Ga. 1 — 10 8. E. Rep. 113 — 20 Am. St. Rep. 301; Owens v. McClasky, 161 U. S. 642— 16 Sup. Ct. Rep. 693; Building Association v. Haden, 92 Va. 201 — 23 S. E. Rep. 285; Barnes v. Hays, 129 Pa. St. 554— IS Atl. Rep. 559.) JSTotice is indispensable to the validity of a personal judg- ment, and in the absence of a voluntary appearance which in effect is a waiver of process, and in the absence of legal ser- vice of summons whereby the defendant is brought into court, the judgment is a mere nullity. (Barrett v. McCallister, 33 W. Va. 73S — 11 S. E. Rep. 220; Martin v. Cobb, 77 Tex. 544 — 14 S. W. Rep. 162; Cudabae v. Strong. 67 Miss. 705 — 7 So. Rep. 543.) Constructive Service only Insufficient. § 60. In actions in personam strictly judicial and pro- ceeding according to the course of the common law, in the absence of a voluntary appearance and without personal ser- vice of process, a judgment rendered against a defendant upon service of summons by publication only is an unquali- fied nullity, and a sale thereunder ineffectual for any pur- pose. (Hardy v. Beaty. 84 Tex. 562 — 19 S. W. Rep. 778 — 31 Am. St. Rep. 80; Renier v. Hurlbut, 81 Wis. 24 — 50 X. W. Rep. 783 — 29 Am. St. Rep. 850; Bardwell v. Collins, 44 Minn. 97 — 46 N. W. Rep. 315 — 20 Am!' St. Rep. 547; St. Claire v. Cox. 106 U. S. 350 — 1 Sup. Ct. Rep. 354; Witt v. Meyer, 69 Wis. 595 — 35 N. W. Rep. 25; Smith v. Crady, 68 Wis. 215 — 31 N. W. Rep. 477.) Manifestly upon elementary principles of jurisprudence such a judgment is ineffectual in its operations against such non-appearing defendant who resided beyond the territorial limits of the state. It is wholly immaterial whether the process was served by publication merely or was personally served upon him beyond the borders of the state, the service is void and insufficient to sustain a personal judgment be- cause it is extraterritorial in either case, the court having no power to command defendant to appear before it and have his rights adjudicated by its decision. JURISDICTION TO RENDER PERSONAL JUDGMENT. 97 (Brown v. Campbell, 100 Cal. 635 — 35 Pac. Rep. 433 — 38 Am. St.- Rep. 314; Goldey v. Morning News, 15G U. S. 518 — 15 Sup. Ct. Rep. 559; Plummer v. Hatton, 51 Minn. 181 — 53 N. W. Rep. 460; Davis v. Wakelee, 156 U. S. 680 — 15 Sup. Ct. Rep. 555 ; McGavock v. Clarke, 93 Va. 810 — 22 S. E. Rep. 864; Sewing Machine Co. v. Radcliffe, 137 U. S. 287 — 11 Sup. Ct. Rep. 92; Paxton v. Daniell, 1 Wash. 19 — 23 Pac. Rep. 441; Bruschke v. Verein, 145 111. 433 — 34 N. E. Rep. 417; York v. Texas, 137 U. S. 15 — 11 Sup. Ct. Rep. 9; Wilson v. Seligman, 144 U. S. 41 — 12 Sup. Ct. Rep. 541.) How a Minor Brought in. § 61. If jurisdiction of a minor is sought to be obtained it must be acquired pursuant to the method provided by law in this regard, as a voluntary appearance by such a person is unauthorized. (Helmes v. Chabourne, 45 Wis. 60; Roy v. Rowe, 90 Ind. 154; Carver V. Carver, 64 Ind. 194.) A non-resident infant cannot be brought into court in an action to cancel a contract because service out of the state is void. ISTor is the court authorized to appoint a guardian ad litem by reason of such service, but the judgment, ap- pointment and appearance are all unqualifiedly void for want of jurisdiction of the person of the infant. (Insurance Co. v. Bangs, 103 U. S. 435.) It is a recognized and elementary principle the philosophy of which is self-evident that a court has no authority to ad- judicate directly upon a person's rights when he is neither actually, if a personal judgment is demanded, or construc- tively when his property within the jurisdiction of the court is sought to be reached, before the court. (Gregory v. Stetson, 133 U. S. 579 — 10 Sup. Ct. Rep. 422; Anderson r. Hawhe, 115 111. 33 — 3 N. E. Rep. 566; St. Claire v. Cox, 106 U. S. 350 — 1 Sup. Ct. Rep. 354; Blanton v. Carrol, 86 Va. 539 — 10 S. E. Rep. 329; Elliott v. McCorruack, 144 Mass. 11 — 10 N. E. Rep. 705.) Complainant in Court by Virtue of His Petition. § 62. The court acquires jurisdiction over the complainant in the action upon his coming before it with his complaint or petition according to the requirements of law in this re- gard. By his pleading he submits himself to the jurisdiction of the court and thereafter he is before it for all matters in- cident to the suit. 7 98 VOID JUDICIAL AND EXECUTION SALES. And in a court of record a judgment rendered without a written statement of a cause of action is a nullity, as a judg- ment can not be based upon facts not pleaded. The same rule applies in case the judgment in its relief goes beyond the issues made. (Kimmerle v. Kailway Co., 76 Tex. 686 — 12 S. W. Rep. 698.) Irregular Process Served. § 63. While a judgment pronounced against a defendant who has neither appeared in the action nor has been served with process is void, yet if he was served with process ir- regular in form, or which, though regular in form, has been irregularly served, it is incumbent upon the defendant thus served to urge his objections to such irregularity, and failing so to do, the judgment ultimately rendered against him is generally sufficient when collaterally called in question. In the former case there is a total want of jurisdiction but in the latter merely a defect in invoking it. (Estate of Newman, 75 Cal. 213 — 16 Pac. Rep. 8S7 — 7 Am. St. Rep. 146; Lane v. Innes, 43 Minn. 137 — 45 N. W. Rep. 4; Schobacher v. Insurance Co., 59 Wis. 86 — 17 N. W. Rep. 969.) Process Served Wanting in Substance. § 64. Therefore, where the summons actually issued and served accomplishes the object of the law in furnishing the defendant with the intelligence of the pendency of the action, admonishing him to appear and defend within a time and at a place specified, and that upon his failure so to do judgment will be rendered against him according to the demands of the complaint, it is sufficient to confer jurisdiction, notwithstand- ing the summons may be deficient in failing to state other statutory requirements. But on the contrary, if the process is defective by reason of a total omission of one or more of the essential particulars, it is manifestly insufficient to confer jurisdiction, and the judgment is ordinarily a nullity by reason thereof. (Pickering v. State, 106 Ind. 228 — 6 N. E. Rep. 611; Newman v. Bowers, 72 Iowa, 465 — 34 N. W. Rep. 212; Kimball v. Castagnio, 8 Colo. 525 — 9 Pac. Rep. 488.) Defective Service and Failure of Service. § 65. There is a material distinction between an attempt at service reaching the defendant but which is defective in ACTUAL XOTICE. 99 the manner of service or form of return, and where such at- tempted service wholly fails to reach the defendant. A judg- ment founded upon the former is irregular and voidable, but when founded upon the latter it is absolutely void. (Campbell Co. v. Mader, 50 Neb. 283 — 69 X. W. Rep. 774.) ACTUAL NOTICE. In General. § 66. Judgments and decrees obtained in courts of record in cases wherein the record of the cause discloses among other steps had anterior to the rendition of judgment, the return of the sheriff or other officer authorized to serve original process, and who served the writ or summons in the particular action, in effect that it was executed or served as by law required, the truth of such return of service cannot be questioned in the state wherein the judgment was pro- nounced after the expiration of the time within which the, court retains power over its own judgments and decrees. This inhibition obtains not only in collateral proceedings, but also in a direct action instituted for the purpose of vacat- ing the judgment, except in cases where the plaintiff, by fraudulent machinations, procured the return, when it may be questioned in a direct proceeding when the court has lost control over its judgments by the lapse of time. (Thomas v. Ireland, 88 Ky. 5S1 — 11 S. W. Rep. 653 — 21 Am. St. Rep. 356; Johnson v. Gregory, 4 Wash. 109 — 29 Pac. Rep. 831 — 31 Am. St. Rep. 907; Thompson v. McCorkle, 136 Ind. 4S4 — 34 N. E. Rep. 813 — 43 Am. St. Rep. 334; United States v. Goyle, 45 Fed. Rep. 107; Goddard v. Harbour, 56 Kan. 744 — 44 Pac. Rep. 1055; Thomas v. Owen, 49 Pac. Rep. 73; Nichols v. Nichols, 96 Ind. 433; McNeill v. Edie, 24 Kan. 108.) Mere irregularity in the process or in the officer's return of process is insufficient to expose the judgment to successful collateral impeachment. As for instance where the requisite seal was lacking in the summons served. (Krug v. Davis. 85 Ind. 312; Boyd v. Fletcher, 71 Ind. 306; State V. Davis, 73 Ind. 359.) Record Disclosing Service in a Particular Manner. § 67. It is a general rule that when the record shows that jurisdiction was sought to be acquired in a certain way, or that certain steps were taken to obtain jurisdiction, then 100 VOID JUDICIAL AND EXECUTION SALES. there are no presumptions that anything else was done or that jurisdiction was obtained in some other way. Accord- ingly, where the record professes to contain the return pro- cess, which discloses the fact that the wrong person was served, or that the defendant could not be found, or was improperly served, it can not be presumed, the entry and finding of due service preceding the default to the contrary notwithstanding, that there was some other and sufficient service upon the real defendant. It is but reasonable that where it appears from the face of the record that summons in the action was served in a way wholly ineffectual in order to confer jurisdiction that such disclosure shall prevail and that there is no presumption that any other or valid service was made. (Barber v. Morris, 37 Minn. 194 — 33 N. W. Rep. 559 — 5 Am. St. Rep. '836; Hobby v. Bunch, 83 Ga. 1 — 10 S. E. Rep. 113 — 20 Am. St. Rep. 301; Adams v. Cowles, 95 Mo. 501 — 8 S. W. Rep. 711 — 6 Am. St. Rep. 74; Cheery v. Clayton, 110 U. S. 708 — 4 Sup. Ct. Rep. 328; Settlemeier V. Sullivan, 97 U. S. 444; Coit v. Haven, 30 Conn. 190 — 79 Am. Dec. 244; Cloud v. Pierce City, 83 Ind. 417.) Leaving Summons at Last Place of Residence Actual Service. § 68. If the statute provides that summons may be served upon a defendant by leaving it for him at his last place of residence, such service is actual notice and sufficient to confer jurisdiction to support a personal money judgment, when all the conditions by law required to allow it have been strictly complied with. (Laney v. Garbee, 105 Mo. 355 — 16 S. W. Rep. 831 — 24 Am. St. Rep. 391; McLane v. Piaggio, 24 Fla. 71 — 3 So. Rep. 823; Swift v. Meyers, 37 Fed. Rep. 37; Jenkins V. Crofton, 9 S. W. Rep. 406; Settlemeier v. Sullivan, 97 U. S. 444.) But where the law requires process to be personally served, a service by leaving a copy thereof at the defendant's resi- dence is tantamount to no service at all. (Hobby v. Bunch, 83 Ga. 1 — 10 S. E. Rep. 113 — 20 Am. St. Rep. 301.) Pleadings Showing Absence or Non-residence of Defendant. § 69. The presumptions indulged in support of the judg- ments of superior courts of general jurisdiction are limited to jurisdiction over persons within their territorial limits; ACTUAL NOTICE. 101 hence, where the pleadings affirmatively disclose the fact that the defendant is a non-resident or is absent from the state, this must be considered as proof that he has not re- ceived actual notice, nothing appearing to the contrary. (Galpin v. Page, 13 Wall. 350.) Notice on Minors. § 70. According to the doctrine announced in some ad- judications actual notice upon a minor is not necessary for a valid decree for the sale of lands derived from his ancestor. (Railway Co. v. Blythe, 69 Miss. 939 — 11 So. Rep. 111 — 30 Am. St. Rep. 599 ; Morton v. Carroll, 68 Miss. 699 — 9 So. Rep. 896 ; Burrus v. Burrus, 56 Miss. 92; Stampley v. King, 51 Miss. 728; Benningfield v. Reed, 8 B. Mon. 105; Bustard v. Gates, 4 Dana, 429; Smith v. Marshall, 2 Atk. 70; Thompson v. Jones, 8 Ves. 141.) Others consider notice upon the minor an essential re- quirement to a valid decree affecting his rights in such lands upon the theory that such proceedings are adversary and notice must be given to acquire jurisdiction of his person. (In re Estate of Hunter, 84 Iowa, 3S8 — 51 N. W. Rep. 20; Moore v. StaTks, 1 Ohio St. 369 ; Massie v. Donaldson, 8 Ohio, 377 ; Roy v. Rowe, 90 Ind. 54; Allen v. Saylor, 14 Iowa, 435.) In Indiana it has been frequently held that the fact of infancy will not excuse the necessity of service of process upon infant defendants, and in order to confer jurisdiction they must be notified the same as adults. (Abdil v. Abdil. 26 Ind. 287; Hawkins v. Hawkins, 28 Ind. 66; Doe v. Anderson, 5 Ind. 33; Hough v. Canby, 8 Blackf. 301.) Elsewhere it has been held that a decree in partition of real estate against minors not actually brought into court by service of process, but who were represented in the pro- ceeding by a guardian ad litem is not void but voidable only. (Alston v. Emmerson, 83 Tex. 231 — 18 S. W. Rep. 566 — 29 Am. St. Rep. 639; Havens v. Drake, 43 Kan. 484 — 23 Pac. Rep. 621.) In Suits against Husband and Wife. § 71. Under the old chancery practice service upon the husband was deemed sufficient in a suit against himself and wife involving all property except the wife's separate estate, or where the bill was direct against her as a fiduciary. Ser- vice upon the husband alone was considered sufficient by 102 VOID JUDICIAL AND EXECUTION SALES. reason of the legal fiction that husband and wife are one person in law. However, this rule is abrogated under the modern codes of procedure. (Leitner v. Lewis, 119 N. Y. 131 — 23 N. E. Eep. 296; Ferguson v. Smith, 2 Johns. 139; Daniell Chancery Practice, 435.) In Proceedings of Sale by Administrators. § 72. Notice of the application for an order of sale by an administrator for the sale of a decedent's lands is not held to be an essential requisite to bind the parties interested, in those states where such proceedings are considered as being in the nature of proceedings in rem, the filing of a proper petition conferring authority upon the court to order the sale, where this is the rule. Among the states wherein this prin- ciple has become a settled rule of property are Alabama, Arkansas, Texas, Washington, Louisiana, Nebraska and Iowa. (Lyne v. Sanford, 82 Tex. 58 — 19 S. W. Eep. 847 — 27 Am. St. Rep. 852; Apel v. Kelsey, 52 Ark. 341 — 12 S. W. Rep. 703 — 20 Am. St. Rep. 183; Cobb v. Garner. 105 Ala. 467 — 17 So. Eep. 47; Goodwin v. Sims, 86 Ala. 102 — 5 So. Rep. 5S7; Ackerson v. Orchard, 7 Wash. 377 — 34 Pac. Rep. 1106; Schroeder v. Wilcox, 39 Neb. 136 — 57 N. W. Rep. 1031; Spurgin v. Bowers, 82 Iowa, 187 — 47 N. W. Rep. 1029; Oriol v. Hern- don, 38 La. Ann. 759.) Diametrically opposed to this view are the adjudications in the states of Kansas, Illinois, Wisconsin, South Carolina, Oregon, Mississippi, New Hampshire, Tennessee, New York, North Carolina and Indiana, where the notice pro- vided to be given by the fiduciary of his application for an order of sale is an indispensable requirement without which jurisdiction of the heirs or interested parties is not acquired. A sale under an order procured in the absence of notice can not affect the title of the heirs, for the proceedings are considered in personam in so far as they are adversary against the interested parties. (Perry v. Adams, 98 N. C. 167 — 3 S. E. Rep. 729 — 2 Am. St. Rep. 326; Johnson v. Cobb, 29 S. C. 372 — 7 S. E. Rep. 601; Railway Co. v. Cook, 43 Kan. 83 — 22 Pac. Rep. 988; Fell v. Young, 63 111. 106; Blod- gett v. Hitt, 44 Wis. 136 ; Fisk v. Kellogg. 3 Ore. 503 ; Jenkins v. Young, 35 Hun, 569; Frazier v. Pankey, 1 Swan, 74; Root v. McFerrin, 37 Mass. 17 — 75 Am. Dec. 49: French v. Hoyt, 6 N. H. 370 — 25 Am. Dec. 464; Doe v. Brown, 8 Ind. 197 — 65 Am. Dec. 758.) SERVICE OF PEOCESS AND THE BETTJBN. 103 SEEVICE OF PROCESS AXD THE RETURN. Effect when Served by Unauthorized Person. § 73. From the earliest time in the history of our law sheriffs and constables are the specially authorized officers to serve and execute process. Statutes authorizing service to be made by a private person usually provide that he be a disinterested or indifferent person, hence indicating that he must not be a party to nor interested in the suit. Ac- cordingly it has been held that service by a sheriff who is the plaintiff in the suit is invalid, and the judgment by default rendered therein void to the extent that the defend- ant may resist the enforcement thereof by injunction, in- dicating that the judgment is void collaterally. (Knott v. Jarboe, 1 Met. 504.) So in Indiana it was held that where service of the sum- mons was made by an unauthorized person no jurisdiction of the defendant so served was thereby acquired. (Kyle v. Kyle, 55 Ind. 387.) But according to the weight of authority the service of original summons by an unauthorized person will not render the judgment by default void when questioned in a col- lateral proceeding. Thus in a late case in Iowa the court said that it was a well-settled rule in that state that where a defective notice or defective proof of the service of a notice was adjudged to be sufficient by the trial court the judgment rendered thereon is not impeachable collaterally. (Rotch v. Humbolt College, 89 Iowa, 480 — 56 N. W. Rep. 568.) Service Required to be Made by Particular Officer. § 74. Where the statute requires that process shall be served by a certain officer, the provision was held imperative, and service by anyone else was decided to be void under the Kansas statute regarding service outside of the state. (Kincaid v. Frog, 49 Kan. 766 — 31 Pac. Rep. 704.) A seemingly unreasonable rule obtains in Kentucky where it is held that service of summons by a special bailiff is valid only when he has been appointed in writing indorsed by the sheriff on the summons before the service was made, in 104 TOID JUDICIAL AXD EXECUTION SALES. the absence of which such service is absolutely void, and not capable of validation by amendment. (Thompson v. Moore, 91 Ky. SO — 15 S. W. Rep. 6.) Service by Party not Valid. § 75. jSTo person is qualified to execute process in his favor, this not being tolerated under the policy of the law, though it is generally held that summons served by the party himself is merely irregular and voidable, and objection upon this ground is precluded by the rendition of judgment, However, the authorities are not unanimous on this propo- sition, some holding that the defect is jurisdictional. (Hunter v. Lester, 10 Abb. Pr. 347; Collars v. McLeod, 8 Ired. 221 — 49 Am. Dec. 376; Hemmer v. Wolfer, 11 N. E. Eep. 885; Snydecker v. Brosse, 51 111. 357; Lee v. Fox, 89 111. 226; Filkins v. O'Sullivan, 79 111. 524.) Service by Private Person. § 76. By statutory provision in many states original pro- cess may be served by private persons, subject to certain con- ditions and restrictions, such as that they are not interested in the result of the suit, are over twenty-one years of age, and the like. It has been held that it must appear that they have the necessary qualifications or else the service is void. (Johnson v. MaeCoy, 32 W. Va. 552 — 9 S. E. Rep. 887; Barney v. Vigoreaux, 75 Cal. 376 — 17 Pac. Rep. 433.) Under a statute providing that none but disinterested per- sons may be appointed to serve process issuing out of a justice's court, this was held mandatory in Michigan and no jurisdiction is acquired where the service was made by one interested as a party to the suit. (Insurance Co. v. Page, 61 Mich. 72 — 27 N. W. Rep. 859; Rasch v. Moore, 57 Mich. 54 — 23 N. W. Rep. 456.) Written Admission of Service of Process. § 77. Many states allow the written admission of service by the defendant designated in the summons, in lieu of other service. Where the defendant's signature thus appears, though without attestation, the judgment by default rendered upon such proof of service is not subject to collateral assault, because the court must have passed upon the sufficiency of the admission and the genuineness of the signature. Such SEEYICE OF PROCESS AND THE RETURN". 105 service is equivalent to actual service, and accordingly brings the defendant within the jurisdiction of the court, notwith- standing the informalities of the summons in some particu- lars not going to the substance of the writ. (Stevenson v. Polk, 71 Iowa, 278 — 32 N. W. Rep. 340; Cheney v. Harding, 21 Neb. 65 — 32 N. W. Rep. 64; Gray v. Grant, 101 N. C. 206 — 8 S. E. Rep. 99.) But it is not every defendant that can accept service in writing in this manner ; thus it has been held that an infant can not accept service of process. (Whitsides v. Barber, 24 S. C. 373; Winston v. McLendon, 43 Miss. 254; Ricker v. Vaughn, 23 S. C. 1S7; Finlay v. Robertson, 17 S. C. 435.) though the contrary seems to have been decided by the su- preme court of North Carolina. (Cates v. Pickett, 97 N. C. 21 — 1 S. E. Rep. 763; England v. Garner, 90 N. C. 197.) Personal Service Outside of the State. § 78. Personal service of summons outside of the state is provided for by statute in many states, but such service is in effect but constructive notice, conferring jurisdiction to render a judgment in rem only, the same as if the only notice given were that published in a newspaper. In such case the res must have been brought within the jurisdiction of the court by seizure or attachment the same as if notice were to be given by the publication of the warning order. (McBain v. McBain, 77 Cal. 507 — 20 Pac. Rep. 61; Wilson v. Rail- way Co., 108 Mo. 588 — 18 S. W. Rep. 286 — 32 Am. St. Rep. 624; Graham v. O'Bryan, 120 N. C. 463 — 27 S, E. Rep. 122; Crouter v. Crouter, 17 N. Y. Supp. 758; Wood v. Pond, 21 Ohio St. 148; Allen v. Cox, 11 Ind. 383; Brooklyn Trust Co. v. Bulmer, 49 N. Y. 84; Williams v. Welton, 28 Ohio St. 467.) Xor will the acceptance of service of summons outside of the territorial limits of the state confer jurisdiction to render a personal judgment against the defendant so ac- cepting service, as the acceptance so made merely supplies the place of the affidavit of service otherwise necessary. (Scott v. Scott, 72 Pa. St. 115.) Where service is made outside of the state it must be made on the defendant in person, or else it is a nullity. It can not 106 VOID JUDICIAL AXD EXECUTION SALES. be left at his usual place of abode with some person of suit- able age and discretion, as is permissible under certain cir- cumstances in making service in the state. (Adams v. Heckscher, 80 Fed. Rep. 742.) Officer's Return of Service Conclusive. § 79. There is an irreconcilable conflict in the decided cases upon the effect of a return of the proper officer showing service of process. The decided preponderance of authority supports the rule that the return of the officer is conclusive upon the parties to the proceeding in case of collateral attack upon a domestic judgment, the conclusiveness however be- ing confined to such facts as the officer must necessarily certify from his own personal knowledge, and not to such matters, for the knowledge of which, he must necessarily be dependent upon others. (Thomas v. Ireland, 88 Ivy. 581 — 11 S. W. Eep. 653 — 21 Am. St. Eep. 356; Great West Mining Co. v. Mining Co., 12 Colo. 46 — 20 Pac. Rep. 771 — 13 Am. St. Rep. 204; Goddard v. Harbour, 56 Kan. 744 — 44 Pac. Rep. 1055; Nichols v. Nichols, 96 Ind. 433; Cavanaugh v. Smith, 84 Ind. 3S0; Forrest v. Railway Co., 47 Fed. Rep. 1.) When Return not Conclusive. § 80. But the rule of the conclusiveness of the return is not adhered to in many of the adjudicated cases where the question turns upon the fact as to whether or not there was service at all upon the defendant, the question thus being a jurisdictional one. In these cases the return may be im- peached collaterally, there not being a defective service but a total absence of service, and the return of the officer con- sequently is a falsehood. (Campbell P. P. & Mfg. Co. v. Mader L. & Co., 50 Neb. 283 — 69 N. W. Rep. 744; Wilson v. Shipman. 34 Neb. 573 — 52 N. W. Rep. 576; Bank V. Eldridge. 2S Conn. 556 — 73 Am. Dec. 6S8; Carr v. Bank. 16 Wis. 50; Owens v. Ranstead, 22 111. 161.) Defendant Brought into State by Fraud or Force. § 81. When force has been employed in bringing the defendant within the territorial jurisdiction of the court, or where he is decoyed into the state or jurisdiction by means of false correspondence or false and spurious tele- grams, or by other fraudulent and deceitful practices, for the purpose of serving process upon him, the service is void. GENERAL APPEARANCE BY DEFENDANT. 107 and the judgment a nullity for want of jurisdiction, and will be set aside at the instance of the defendant. (Townsend v. Smith, 47 Wis. 623 — 32 Am. Kep. 793 ; Cook v. Brown, 125 Mass. 503 — 28 Am. Rep. 259; Blair v. Turtle, 1 McCrary, 372 — 5 Fed. Rep. 394; Peel v. January, 35 Ark. 331 — 37 Am. Rep. 27; Dunlap V. Cody, 31 Iowa, 260— '17 Am. Rep. 129; Steele v. Bates, 1 Aiken, 338 — 16 Am. Dec. 740; Wanzer v. Bright, 52 111. 41; Hill v. Goodrich, 32 Conn. 5S8; Wood v. Wood, 78 Ky. 624; Williams v. Reed, 29 N. J. L. 385; Steiger v. Bonn, 59 How. Pr. 496.) The objection by reason of such fraud is waived where the defendant appears in the action by answer or other plea not going to the jurisdiction. (Jones v. Jones, 108 N. Y. 415 — 15 N. E. Rep. 707 — 2 Am. St. Rep. 447 ; Ferguson v. Oliver, 99 Mich. 161 — 58 N. W. Rep. 43 — 41 Am. St. Rep. 593.) GENERAL APPEARANCE BY DEFENDANT AND ITS EFFECT. Appearance Defined. § 82. Appearance by the defendant in a suit or action is the coming into court as a party thereto, either in person or by attorney, or by some one else specially authorized to enter or make such appearance for him, which is usually done by the filing of a pleading in the case or some other similar act recognizing the authority of the judicial tribunal to proceed in the action. (Roy V. Mercantile Trust Co., 3 Wyo. 417 — 26 Pac. Rep. 996; Car- penter v. Shepardson, 43 Wis. 406; McCormick v. Railway Co.. 49 X. Y. 303; Wasson v. Cone, 86 111. 46; Slauter v. Hollowell, 90 Ind. 286.) Hence if a defendant who has not been served with pro- cess makes a general appearance in the action pending in a court having jurisdiction of the subject-matter, by taking such a step therein or seeking such relief from the court as is consistent only with the hypothesis that it had jurisdiction of his person, he thereby submits himself to the jurisdiction of the court without service of process and is bound by its action to the same extent as if he had been regularly served with summons in the action. (Corbitt v. Timmermann, 95 Mich. 581 — 55 N. W. Rep. 437 — 35 Am. St. Rep. 586; Childs v. Lantermann, 103 Cal. 387 — 37 Pac. Rep. 382 — 42 Am. St. Rep. 121; Railway Co. v. McBride, 141 U. S. 127 — 108 VOID JUDICIAL AND EXECUTION SALES. 11 Sup. Ct. Eep. 982 ; Dikeman v. Struck. 76 Wis. 332 — 45 N. W. Rep. 48; Chaffee v. Postal Telegraph Co., 35 S. C. 372 — 14 S. E. Rep. 764; Frazier v. Douglass, 57 Kan. S09 — 48 Pac. Rep. 36; Foote v. Richmcnd, 42 Cal. 443; Wood v. Young, 38 Iowa, 102; Coad v. Coad, 41 Wis. 26.) Answer Stricken as Insufficient. § 83. By interposing his answer in the action the defend- ant not served with process submits himself to the juris- diction, and the fact that his answer thus interposed is stricken out by the court as insufficient will not deprive it of jurisdiction nor affect the validity of the judgment ulti- mately rendered. (Ferguson v. Oliver, 99 Mich. 161 — 58 N. W. Rep. 43 — 41 Am. St. Rep. 593; Mason v. Alexander, 44 Ohio St. 329 — 7 N. E. Rep. 435; Burdette v. Corgan, 26 Kan. 104.) General Appearance Waives Defect in Process. § 84. A voluntary general appearance on the part of the defendant avoiding the necessity of service of process in order to confer jurisdiction over his person, by a parity of reasoning, srtch appearance is an absolute and unqualified waiver of all defects in such original process which may have been served upon him for the purpose of bringing him into court. (Williams v. Railway Co., 27 Minn. 85 — 6 N. W. Rep. 445; Burnham v. Doolittle, 14 Neb. 214 — 15 N. W. Rep. 606; Allen v. Coates, 29 Minn. 46 — 11 N. W. Rep. 132 ; New England Manufacturing Co. v. Starin, GO Conn. 369 — 22 Atl. Rep. 953 ; Insurance Co. v. Decker, 74 Wis. 556 — 43 N. W. Rep. 500.) Such an appearance waives the defects of a misnomer in the summons, or the defect in the summons caused by the entire omission of the name of a co-defendant not served. (Savings Bank v. Lovejoy. 1 N. Dak. 211 — 46 N. W. Rep. 411; School District v. Griner, 8 Kan. 224.) That the summons was served by an unauthorized person is a defect waived by a general appearance ; nor can he there- after object to a defect in the return of process, or a de- fective summons because it is not sealed, or does not run in the name of the state. All such defects are cured by the defendant's general appearance. (Piatt v. Manning. 34 Fed. Rep. 817; Wilkinson v. Vorce, 41 Barb. 370; Fallon v. Schempf, 67 111. 472; Thompson v. Bishop, 29 Tex. 154; GENERAL APPEARANCE BY DEFENDANT. 109 Vance v. Funk, 3 111. 263; Gilson v. Powers, 16 111. 355; Topf v. King, 26 Ind. 391; Andrews v. Powell, 27 Ind. 303; Brewer v. Sibley, 13 Met. 175; Lovell v. Sabin, 15 N. H. 29; McManus v. McDonough, 107 111. 95.) The defendant's general appearance waives the otherwise fatal defect that the summons was served on the wrong per- son. (Railway Co. v. Caldwell, 11 Colo. 545 — 19 Pac. Rep. 542; Flynn v. Railway Co., 6 How. Pr. 30S.) Waives Jurisdictional Defect in Issuing Process. § 85. Where a non-resident defendant appears and inter- pleads in response to the process or order of a court having no jurisdiction to issue the process or make the order because . the defendant was not before the court, the appearance thus made is regarded as a waiver of the right to object to the jurisdiction of the court. (Bank v. Insurance Co., 83 Iowa, 491 — 50 N. W. Rep. 53 — 32 Am. St. Rep. 316; Railway Co. v. Gibson, 85 Ga. 1 — 11 S. E. Rep. 442 — 21 Am. St. Rep. 135; Railway Co. v. De Busk, 12 Colo. 294 — 20 Pac. Rep. 752 — 13 Am. St. Rep. 221 ; Pierce v. Assurance Association, 145 Mass. 56— 12 N. E. Rep. 85S.) Appearance by Infants. § 86. An infant must plead or answer by his guardian, and can not appear by attorney. Hence it is held that the only way to acquire jurisdiction of his person is by service of process upon him as by law provided. (Roy v. Rowe, 90 Ind. 54; Helms v. Chadbourne, 45 Wis. 60; Carver V. Carver, 64 Ind. 194.) But it is also contended that the only object of a summons on an infant was the answer of the regular guardian in case there was one, and if he should answer without the sum- mons having been served the minor is bound by judgment nevertheless. (Payne v. Masek, 114 Mo. 631 — 21 S. W. Rep. 751; Smoot v. Boyd, 87 Ky. 642 — 9 S. W. Rep. 829.) In a statutory proceeding against heirs to sell the lands of a decedent to pay debts, where such proceedings are con- sidered as adversary to the heirs, it is held that the guardian of an infant heir can not waive process and answer for the 110 VOID JUDICIAL AND EXECUTION SALES. ward. The same reasoning would apply to a guardian ad litem, jurisdiction to appoint whom resting upon service on the infant in the manner provided by law. (Potter V. Ogden, 136 N. Y. 3S4 — 33 N. E. Rep. 228; Crouter v. Crouter. 133 N. Y. 55 — 30 N. E. Rep. 726; Ingersoll v. Mongani, 84 N. Y. 622; Doe v. Bowen, S Ind 197.) EFFECT OF SPECIAL APPEAKANCE. In Cases where Statute does not Prohibit it. § 87. Where there is no express statute prohibiting it, a special appearance may be entered for the purpose of pre- senting the question as to whether or not the court has ac- quired jurisdiction by the process that has been served. Therefore, a special appearance must always be made upon jurisdictional grounds exclusively, for if made on any other ground it is a general appearance which of itself confers jurisdiction. (Meyer v. Brooks, 29 Ore. 203 — 44 Pac. Rep. 2S1 — 54 Am. St. Rep. 790; Green v. Green, 42 Kan. 654 — 22 Pac. Rep. 730; Nelson v. Camp- bell, 1 Wash. 261 — 24 Pac. Rep. 539; Roy v. Mercantile Trust Co., 3 Wyo. 417 — 26 Pac. Rep. 996; Railway Co. v. Superior Court, 59 Cal. 471; Grantier v. Rosecrance, 27 Wis. 491.) Statutory Rule in Some States. § 88. In some states, under express provision of statute, when a defendant appears to object to the jurisdiction of the court he is thereafter precluded from objecting to the suffi- ciency of the service of notice upon him. (Insurance Co. v. Hanna, 81 Tex. 487 — 17 S. W. Rep. 35; Robb v. Rogers, 67 Tex. 335 — 3 S. W. Rep. 303; Railway Co., v. Morris, 68 Tex. 49 — 3 S. W. Rep. 457; Church v. Crossman 49 Iowa, 444.) Application to Remove from State to Federal Court. § 89. The filing of a petition for the removal of a cause from a state to a federal court constitutes but a special ap- pearance and the right to urge objections to the service of summons is not thereby waived. (Railway Co. v. Brow. 164 U. S. 271 —17 Sup. Ct. Rep. 126; Hawkins v. Pierce, 79 Fed. Rep. 452; Ahlhauser v. Butler, 50 Fed. Rep. 705.) UNAUTHORIZED APPEARANCE BY ATTORNEY. Ill UNAUTHORIZED APPEARANCE BY ATTORNEY. Exposes Judgment to Collateral Attack. § 90. There is a conflict in the adjudicated cases upon the question as to whether or not a judgment is subject to col- lateral impeachment upon the allegation that the attorney who entered a general appearance for the defendant was not authorized to make the same, and that the pleading or instrument which purports to be his appearance in the case was neither signed nor authorized by him. The effect of such unauthorized appearance depends upon two questions, the residence of the defendant and the nature of the court, whether of general or limited and inferior jurisdiction. One line of cases maintains the doctrine that a judgment rendered upon an unauthorized appearance of an attorney, where the defendant had no notice of the pendency of the suit, is an absolute nullity for jurisdictional infirmity, and an innocent purchaser thereunder is not protected in this title. (Stocking v. Hanson, 35 Minn. 207 — 2S N. W. Rep. 507; Anderson v. Hawhe, 115 111. 33 — 3 N. E. Rep. 566; Reynolds v. Fleming, 30 Kan. 106 — 1 Pac. Rep. 61; McDowell v. Gregory, 14 Neb. 33 — 14 N. W. Rep. 899; Williams v. Neth, 4 Dak. 360 — 31 N. W. Rep. 630; Bank v. Brooks, 23 Fed. Rep. 21.) The same rule is applied where a defendant is out of the state or a non-resident and has no notice of the pendency of the suit against him, in which case he is in no way legally affected by an appearance for him by an attorney, when made without his knowledge or authority. (Vilas v. Railway Co., 123 N. Y. 440 — 25 N. E. Rep. 941 — 20 Am. St. Rep. 771; McNamara v. Carr, 84 Me. 290 — 24 Atl. Rep. 856; Cleve- land v. Hopkins, 55 Wis. 3S7 — 13 N. W. Rep. 225; Denton v. Noyes, 6 Johns. 29S — 5 Am. Dec. 237.) Rule of Collateral Impeachment Denied. § 91. Pursuant to a decided preponderance of authority however the presumption that the appearance was author- ized is conclusive in case of a collateral assault upon the judgment upon this ground, though the right of the defend- ant to be relieved from the consequences of a judgment thus rendered against him is recognized, but not that such judg- 112 VOID JUDICIAL AND EXECUTION SALES. ment is so unqualifiedly void as to be subject to collateral im- peachment. These adjudications it seems are based upon principle and reason. (Corbitt v. Timmermann, 95 Mich. 5S1 — 55 N. W. Rep. 437 — 35 Am. St. Rep. 5S6; Great West Mining Co. v. Mining Co., 12 Colo. 46 — 20 Pac. Rep. 771 — 13 Am. St. Rep. 204: Bank v. Dry Goods Co., 45 Kan. 510 — 26 Pac. Rep. 56; Wheeler v. Cox, 56 Iowa, 36 — S N. W. Rep. C58 ; Reynolds v. Fleming, 30 Kan. 106 — 1 Pac. Rep. 61 ; Ferguson v. Crawford, 70 N. Y. 253 — 26 Am. Rep. 589.) JURISDICTION TO BENDER JUDGMENT IN REM. Seizure and Notice. § 92. The manner or means of acquiring jurisdiction con- stitutes the principal and important distinction between ac- tions in personam and proceedings in rem. In the former it is sought to recover a personal judgment against the de- fendant, personal or actual service of notice is indispensable to confer jurisdiction, while in the latter case there is no such requirement, the seizure of the property confers jurisdiction and notice may be given constructively by publication thereof. The theory is advanced by some authorities that the seiz- ure of the property gives the court complete jurisdiction in attachment proceedings and notice is a mere matter of courtesy, and consequently the failure to give the statutory notice to the defendant is nothing more than an error which does not amount to a jurisdictional infirmity nor make the proceedings void. (Paine v. Moreland, 15 Ohio, 435 — 45 Am. Dec. 585; Needham v. Wilson, 47 Fed. Rep. 97; McDonald v. Simcox, 98 Pa. St. 619; Cooper v. Reynolds, 10 Wall. 308; Craig v. Fraser, 73 Ga. 246; Johnson v. Gage, 57 Mo. 160; Freeman v. Thompson, 53 Mo. 183.) A diametrically opposite rule, more consonant with reason and sound on principle, is promulgated elsewhere, holding that jurisdiction to pronounce judgment of condemnation is not complete until the notice has been given as by law provided. (Seger v. Muskegon Co., 81 Mich. 344 — 45 N. W. Rep. 982; Cummings v. Tabor, 61 Wis. 185 — 21 N. W. Rep. 72 ; Beaupre v. Brigham, 79 Wis. 426 — 48 N. W. Rep. 596; Stewart v. Anderson, 70 Tex. 588 — 8 S. JURISDICTION TO RENDER JUDGMENT IN REM. 113 W Rep. 295; Wescott V. Archer, 12 Neb. 345 — 11 X. W. Rep. 577; Barber v. Morris, 37 Minn. 194 — 33 N. W. Rep. 559; Woolridge v. Mon-- teuse, 27 La. Ann. 79; Clark v. Bryan, 1G Md. 171; Edwards v. Toomer, 14 S. & M. 75; Ingle v. Curry, 1 Heisk. 26.) Sales by Guardians of Ward's Lands, § 93. Upon the proposition that a guardian represents his ward, an order to sell the ward's lands, obtained either with- out or upon insufficient notice, is now void, because the pro- ceedings of sale are not considered adversary to the ward. (Scarf v. Aldricb, 97 Cal. 360 — 32 Pac. Rep. 324 — 33 Am. St. Rep. 190; Weld V. Johnson Mfg. Co., 84 Wis. 537 — 54 N. W. Rep. 335; Meyers v. McGavock, 39 Neb. S43 — 58 N. W. Rep. 522 ; Thaw v. Ritchie, 136 U. S. 519 — 10 Sup. Ct. Rep. 1037; Mohr v. Porter, 51 Wis. 487 — 8 N. W. Rep. 364; Mohr v. Manierre, 101 U. S. 417.) But in a recent case in Iowa it is contended that such proceedings are adversary, and hence the notice is essential. The current of authority is in favor of the former ruling. (Tn re Estate v. Hunter, 84 Iowa, 38S — 51 N. W. Rep. 20.) Sale of Perishable Property Pendente lite. § 94. The sale of perishable property under the order of the court pendente lite is a proceeding purely in rem, and the purchaser of the same obtains a good title irrespective of the nature of the writ upon which the sale is made and re- gardless of the question as to who owned the same, or that there was no notice given. (Young v. Keeler, 94 Mo. 581 — 7 S. W. Rep. 293 — 4 Am. St. Rep. 405; State v. Hadlock, 52 Mo. App. 297; Griffith v. Fowler, 18 Vt. 390; Bullard v. Woods, 43 Mo. App. 494.) Only the Property Actually Before the Court Affected. § 95. Personal service outside of the state, or constructive service by publication of the notice, are available only in the acquisition of jurisdiction for the rendition of a judgment in rem against the property of the defendant within the jurisdiction of the court, previously subjected by levy or seiz- ure under some appropriate writ or process of the court whereby the property sought to be condemned to the satis- faction' of the judgment is taken into custody. And such service is also sufficient for the enforcement of some specific contract lien existing upon the specific property sought to be 114 VOID JUDICIAL AND EXECUTION SALES. appropriated, in which case ordinarily no seizure is required to vest jurisdiction. The right to pronounce such judgment in rem is conceded upon the theory that the courts of every nation, as a matter of necessity and expediency, have jurisdiction over the prop- erty within their territorial limits, regardless of the question of ownership thereof. To render a valid judgment in rem there must be both seizure and notice according to the decided preponderance of judicial authority. (Real Estate Co. v. Hendrix, 28 Ore. 485 — 42 Pac. Rep. 514 — 52 Am. St. Rep. 800; Wilson v. Railway Co., 108 Mo. 5SS — IS S. W. Rep. 286 — 32 Am. St. Rep. 624; Carr v. Coal Co., 96 Mo. 149 — 8 S. W. Rep. 907 — 9 Am. St. Rep. 328; Waldron v. Railway Co., 1 Dak. 351 — 46 N. W. Rep. 456; Hassall v. Wilcox, 130 U. S. 493 — 9 Sup. Ct. Rep. 590; Stewart v. Anderson, 70 Tex. 588 — 8 S. W. Rep. 295; Cross v. Arm- sti-ong, 44 Ohio St. 613 — 10 1ST. E. Rep. 160 ; Brigham v. Fayerweather, 140 Mass. 411 — 5 N. E. Rep. 265; Freeman v. Alderson, 119 U. S. 185 — 7 Sup. Ct. Rep. 165; Windsor v. McVeigh, 93 U. S. 274; Lutz v. Kelly, 47 Iowa, 307.) As actual seizure or levy upon the property is absolutely indispensable to confer jurisdiction in proceedings in rem, as a necessary corollary, the judgment of condemnation is exclusively confined to the particular property seized, and has no effect whatever upon any other property owned by the defendant and which may be located within the territorial jurisdiction of the court, but which was not seized and hence was not before the court to be adjudicated upon. (Griffith v. Harvester Co., 92 Iowa, 634 — 61 N. W. Rep. 243 — 54 Am. St. Rep. 573 ; Brown v. Campbell, 100 Cal. 635 — 35 Pac. Rep. 433 — 38 Am. St. Rep. 314; Blanc v. Mining Co., 95 Cal. 524 — 30 Pac. Rep. 765 — 29 Am. St. Rep. 149; Freeman v. Alderson, 119 U. S. 185 — 7 Sup. Ct. Rep. 165; Bank v. Parent, 334 N. Y. 527 — 31 N. E. Rep. 976; McKinney v. Collins, 88 N. Y. 216; Pennoyer v. Neff, 95 U. S. 714.) Accordingly, seizure being essential, custody and control over the property must be continuous, for if interrupted, jurisdiction will manifestly cease and the decree thereafter rendered and the sale thereunder must be void beyond question. Judgment must be Rendered on Cause of Action Stated. § 96. The cause of action upon which an attachment was sued out must be sustained, for the plaintiff cannot seize the JURISDICTION TO RENDER JUDGMENT IN REM. 115 property of a non-resident, notify him constructively, and sell the property upon a judgment recovered upon a cause of action other than the one upon which he procured the at- tachment. Xo amendment so as to include another cause of action can be permitted. The proposition is elementary that no new cause of action can be added without the publication of a new notice. (Mudge v. Steinhart, 7S Cal. 34 — 20 Pac. Rep. 147 — 12 Am. St. Rep. 17.) Foreclosure of Mortgage and Other Liens. § 97. Actions for the foreclosure of mortgages, mechanic?' and other liens against the property of non-residents upon constructive service of process are properly proceedings in rem although frequently designated as proceedings quasi in rem, which latter designation is perhaps correct when the defendant receives personal service within the state, but when constructively served the remedy is strictly confined to the property covered by the lien, and the judgment operates upon nothing else. Such suit must be instituted in the jurisdiction wherein the property charged is located. Actual seizure as in attachment is unnecessary to confer jurisdiction, but the mere institution of the suit to enforce the lien by a condemnation of the property to pay the claim is equivalent to a seizure, and the jurisdiction is complete by publication of the statutory notice. (Bernhart v. Brown, 118 N. C. 700 — 24 S. E. Rep. 527; Heidritter v. Oil Co., 112 U. S. 294 — 5 Sup. Ct. Rep. 135.) Decree Assigning Residue of Estate of a Decedent. § 98. In Minnesota it is held that the decree of a court of probate having jurisdiction, assigning the residue of the estate of a decedent is in the nature of a judgment in rem, and is conclusive upon everyone interested whether then in being or not, and binds the whole world. (Ladd v. Weiskoff, 62 Minn. 29 — 64 N. W. Rep. 99; Greenwood v. Murray, 26 Minn. 259 — 2 X. W. Rep. 945.) Attachment of Lands in Justice's Court. § 99. "Where the statute does not authorize the levy of an attachment issued from a justice's court on lands and tene- ments, such a levy is unauthorized, and when made and the 116 YOID JUDICIAL AXD EXECUTION SALES. defendant was not personally served with summons and did not appear, the justice acquired no jurisdiction of the defend- ant nor of the res and a sale of the attached property must necessarily be absolutely void. (McGehee v. Wilkins, 31 Fla. 83 — 12 So. Rep. 228.) JURISDICTION AS DEPENDENT ON AMOUNT IN CONTROVERSY. Amount in Excess Renders Judgment void. § 100. Statutory or constitutional limitations are some- times provided whereby the jurisdiction of courts, usually of inferior jurisdiction, is restricted to a prescribed pecuniary limit. Pursuant to a decided preponderance of authority, where such limitation is imposed, the authority of the court to entertain a suit is restricted to such cases wherein the amount demanded is within the pecuniary limit thus fixed. Accordingly, where the demand for judgment is simply and solely for the recovery of money, in a suit at common law, the fact that the amount demanded exceeds the highest juris- dictional limit of the court to render judgment, as limited either by constitutional provision or statutory enactment, a judgment so rendered is wholly void, because the infirmity is a jurisdictional one affirmatively appearing upon the face of the record. Manifestly, a sale of property under such judgment must also be a nullity. (Fix v. Sissung, 83 Mich. 561 — 47 X. W. Rep. 340 — 21 Am. St. Rep. 616; McFadden v. Whitney, 51 N. J. L. 391 — 18 Atl. Rep. 62; Beach V. Atkinson, S7 Ga. 2SS — 13 S. E. Rep. 591; Bishop v. Freeman. 42 Mich. 533 — 4 X. W. Rep 290; Almand v. Almand, 95 Ga. 204 — 22 S. E. Rep. 213; Ashworth v. Harper, 95 Ga. GG0— 22 S. E. Rep. (570; Bnnch v. Spotts. 57 Ark. 257 — 21 S. W. Rep. 437; Wilson v. Sparkman. 17 Fla. 871 — 35 Am. Rep. 110; Walker v. Wynne, 3 Yerg. 61; Covey v. Noggle, 13 Barb. 330; Hanna v. Morrow, 43 Ark. 307: Ferlett v. Engler, 8 Cal. 76; Ladd v. Kimball, 12 Gray. 139; Jones v. Jones, 3 Dev. !.. Phillip's Appeal, 34 Pa. St. 4S9; Bank v. Pearson, 14 Gray, 521.) No Jurisdiction on Appeal when None Below. § 101. If there is a want of jurisdiction in the original court because of an excessive amount in controversy, juris- diction can not be conferred upon the appellate court by ap- peal, notwithstanding it might have taken original cognizance CONSTRUCTIVE SERVICE OE PROCESS OR NOTK E. 117 of the case, and the judgment there rendered on appeal is void. The jurisdiction of the appellate court depending upon the jurisdiction of the lower court, a sale under such judgment is without validity. (Berroth v. McElvain, 41 Kan. 269 — 20 Pac. Rep. S50; Appeal of Royston, 53 Wis. 612 — 11 X. W. Rep. 36; Nace v. State. 117 Ind. 114 — 19 X T . E. Rep. 729; Horan v. Wahrberger, 9 Tex. 313 — 58 Am. Dec. 145; People v. Skinner. 13 111. 287 — 54 Am. Dec. 432; Levy v. Shunnan, 6 Ark. 182 — 42 Am. Dee. 690; Sturgeon v. day, 96 Ind. 166; Stringham V. Board, 24 Wis. 594: Mays v. Dooley, 59 Ind. 287.) Amount Below Legal Minimum. § 102. So where by statute there is fixed a minimum limit of amount of which courts have jurisdiction, a judgment rendered in contravention of such provision has been held void upon jurisdictional grounds. (Rice v. Calhoun, 12 So. Rep. 707; Raymond v. Hinkon, 11 Mich. 113; Smith v. Knowlton. 11 N. H. 191; Investment Co. v. Ray, 69 Fed. Rep. 657; Moore v. Edgefield, 32 Fed. Rep. 498.) CONSTRUCTIVE SERVICE OF PROCESS OR NOTICE. Constructive Service of Notice Defined. § 103. By constructive notice, or notice by constructive service of process, is generally understood to be some such notice, or service of such notice as may or may not come to the actual knowledge of a party, as contradistinguished from actual personal notice. Constructive notice further includes actual personal notice made, when by statute permissible, outside of the state or territorial jurisdiction of the court. (Wilson v. Railway Co., 108 Mo. 588 — 18 S. W. Rep. 286 — 32 Am. St. Rep. 624; Wood v. Pond. 21 Ohio St. 148; Trust Co. v. Bullen, 49 N. Y. 84; Williams v. Welton, 2S Ohio St. 467; Crouter v. Crouter, 17 N. Y. Snpp. 75S; Allen v. Cox, 11 Ind. 3S3.) Not Available in Purely Personal Actions. § 104. Pursuant to a universally recognized principle a purely personal action can not be maintained where the jurisdiction of the person of defendant is dependent solely upon constructive notice. Tin's rule obtains even in case a personal judgment is pronounced against a defendant who resides within the borders of the state where the action is 118 VOID JUDICIAL AND EXECUTION SALES. pending or judgment rendered, and who is served by pub- lished process only. (Blumberg v. Birch, 99 Cal. 416 — 34 Pac. Rep. 102 — 37 Am. St. Eep. 67; Bardwell v. Collins, 44 Minn. 97 — 46 N. \V. Eep. 313 — 20 Am. St. Rep. 547; Merrill v. Beckwith, 163 Mass. 503 — 40 N. E. Rep. S55; Farmers' Bank v. Bank, 88 Tenn. 279 — 12 S. W. Rep. 545; Winl'ree v. Bagley. 102 N. C. 515 — 9 S. E. Rep. 19S; Eliot v. McCormick, 144 Mass. 10 — 10 N. E. Rep. 705; Quarle v. Abbett, 102 Ind. 233 — 52 Am. Rep. 662.) On Resident Defendants. § 105. Is constructive service available to obtain jurisdic- tion of an alleged absent defendant on the ground that he is a non-resident, when in fact he is a resident? Or can a resident defendant, who can be found within the state and can be personally served with process therein, be served by publication and jurisdiction thus obtained? And where a judgment is thus rendered on such service, can it be assailed in a collateral proceeding upon the ground that there was a want of jurisdiction because the defendant was entitled to be per- sonally served ? Applying the rule that collateral impeach- ment of a judgment is not available save in cases where a want of jurisdiction is apparent upon the face of the record, we apprehend that collateral attack can not ordinarily be successfully invoked in such case. Thus it has been held in Minnesota that a law providing for service by publication on a resident defendant who can be found and served within the state, in proceedings in mortage foreclosure, is unconstitutional and void, and such service accordingly not due process of law within the mean- ing of the federal constitutional inhibition. Hence a title founded upon a judgment against a resident upon construc- tive notice, who at the time was within the state and could have been served, is a nullity. (Bardwell v. Collins, 44 Minn. 97 — 46 N. W. Rep. 315 — 20 Am. St. Rep. 547.) And being unconstitutional and void as to resident defend- ants, it is also void as to non-residents, if it makes no dis- tinction between them. (Smith v. Hurd, 50 Minn. 503 — 52 N. W. Rep. 922 — 36 Am. St. Rep. 661.) CONSTRUCTIVE SERVICE OF PROCESS OK NOTICE. 119 But service by publication against a resident upon an affi- davit alleging that lie is a non-resident, will nut make the judgment of a court of record void collaterally, according to the adjudications of Virginia, Ohio, Kansas, Missouri, Indiana and Tennessee, though such proceedings are never- theless considered voidable. (Lawson v. Moorman, 85 Va. 880 — 9 S. E. Pop. 150; Eailway Co. v. Belle Centre, 48 Ohio St. 273 — 27 N. E. Rep. 464; Payne v. Lott, 90 Mo. 676 — 3 S. W. Rep. 402; Larimer v. Knoyle, 43 Kan. 338 — 23 Pac. Rep. 487; Hammond v. Davenport, 16 Ohio St. 177; Brown v. Goble, 97Jnd. 86; Walker v. Day, 8 Baxt. 77.) Is in Derogation of Common Law. § 10G. Constructive service of process is exceptional and differs from that of the common law, for which reason the requirements of the statute authorizing it must be complied with in every material respect, successively and accurately, in order to confer jurisdiction, pursuant to the weight of authority. (Beckett v. Cuennin, 15 Colo. 281 — 25 Pac. Rep. 167 — 22 Am. St. Rep. 399; Bardwell v. Collins, 44 Minn. 97 — 46 N. W. Rep. 315 — 20 Am. St. Rep. 547; Barber v. Morris, 37 Minn. 194 — 33 N. W. Rep. 559 — 5 Am. St. Rep. 836; Trust Co. v. Railway Co., 139 U. S. 137 — 11 Sup. Ct. Rep. 512 ; Charles v. Morrow, 99 Mo. 63S — 12 S. W. Rep. 903 ; Har- ness v. Cravens, 126 Mo. 233 — 28 S. W. Rep. 971; Morey v. Morey, 27 Minn. 205 — 6 N. W. Rep. 783; Colton v. Rupert, 60 Mich. 318 — 27 N. W. Rep. 520; Galpin v. Page, 18 Wall. 350; Hebel v. Insurance Co., 33 Mich. 400.) Though a more liberal rule obtains in some states where it is held that a judicial sale can not be considered a nullity be- cause of some defect in the constructive service of process upon which the judgment was rendered, such defects being but irregularities and the judgment in consequence thereof at most erroneous, but can not vitiate it altogether. (Denman v. MeGuire, 101 N. Y. 161 — 4 X. W. Rep. 278; Quarle v. Abbett, 102 Ind. 233 — 1 N. E. Rep. 476 — 52 Am. Rep. 662; Essig v. Lower. 120 Ind. 239 — 21 N. E. Rep. 1090; Jackson v. State. 104 Ind. 516 — 3 N. E. Rep. 863; Ballinger v. Tarbell, 16 Iowa, 491; Sidwell v. Worthington, 8 Dana, 74.) Essential Jurisdictional Facts must Appear. § 107. According to a decided preponderance of authority the facts essential to confer jurisdiction must affirmatively 120 VOID JUDICIAL AXD EXECUTION SALES. appear upon the face of the record when jurisdiction to render judgment against a non-resident is acquired by con- structive service, such judgment not receiving any support by way of presumptions. Manifestly, where this doctrine obtains no amendment will be allowed, for to extend the right to supply or amend the proof of publication so as to show that it was sufficient would be incompatible with the doctrine that the essential facts must affirmatively appear upon the face of the record. (Beckett v. Cuenin, 15 Colo. 281 — 25 Pac. Rep. 167 — 22 Am. St. Hep. 399: Furgeson v. Jones, 17 Ore. 204 — 20 Pac. Rep. 842 — 11 Am. St. Rep! 808 T Noble v. Railway Co., 147 U. S. 165 — 13 Sup. Ct. Rep. 271; Trust Co. v. Buddington, 27 Fla. 233 — 9 So. Rep. 251 ; Dick v. Forakcr, 155 U. S. 404 — 15 Sup. Ct. Rep. 124; Harness v. Cravens, 126 Mo. S33 — 28 S. W. Rep. 971; Trust Co. v. Railway Co., 139 U. S. 137 — 11 Sup. Ct. Rep. 512; Granger v. Judge, 44 Mich. 384 — 6 N. W. Rep. 848; Charles v. Morrow, 99 Mo. 638 — 12 S. W. Rep. 903 ; Swift v. Meyers, 37 Fed. Rep. 37; Galpin v. Page, IS Wall. 350.) But the jurisdiction of the court to render a valid judg- ment upon constructive service is dependent upon the fact that a valid publication of the summons or warning order was made and not upon the proof of such publication. Hence where formal proof of the due publication was inadvertently omitted it may be supplied even subsequent to the rendition of judgment. (Railway Co. v. Ashby, 86 Va. 232 — 9 S. E. Rep. 1003 — 19 Am. St Rep. 891; In re Newman, 75 Cal. 213 — 16 Pac. Rep. 887 — 7 Am. St. Rep. 146; Sichler v. Look, 93 Cal. 600 — 29 Pac. Rep. 220; Wilkinson v. Conaty, 65 Mich. 614 — 32 N. W. Rep. 841; Heilen v. Heilen. 94 Cal. 636 — 30 Pac. Rep. 8; Burr v. Seymour, 43 Minn. 401 — 45 N. W. Rep. 715; Webster v. Daniel, 47 Ark. 131 — 14 S. W. Rep. 550; In re Schlee, 65 Mich. 362 — 32 N. W. Rep. 717; Britton v. Larsen, 23 Neb. 806 — 37 N. W. Rep. 6S1.) And the proof of due publication will be presumed to have been made before the rendition of judgment if it is lost or can not be found. (Sichler v. Look, 93 Cal. 600 — 29 Pac. Rep. 220; Clyburn v. Rey- nolds, 31 S. C. 91 — 9 S. E. Rep. 973.) So the failure to make proof in the manner and form re- quired by law is held riot to be fatal to the validity of the CONSTRUCTIVE SERVICE OF PROCESS OR NOTICE. 121 judgment, but a mere irregularity not affecting the juris- diction. (Webster v. Daniel, 47 Ark. 131 — 14 S. W. Rep. 550.) Therefore it may be amended in conformity with the true facts and a sufficient publication thus shown. (Frisk v. Reigleman, 75 Wis. 499-43 N. W. Rep. HIT; Hackett v. Lathrop, 36 Kan. 661-14 Pac. Rep. 220; Robinson v. Hall, 33 Kan. 139—5 Pac. Rep. 763.) Where this liberal rule prevails recitals in the record showing due service to have been made may supply the place of actual proof of publication in the absence of anything ap- pearing to contradict it. (Davis v. Robinson, 70 Tex. 394-7 S. W. Rep. 749; Beattie v. Wil- kinson, 36 Fed. Rep. 646.) In Washington it is held that the service by publication is insufficient when it does not appear that a printed copy of the summons was returned with the affidavit of the publisher of the newspaper as required by statute. (State v. Superior Court, 6 Wash. 352-33 Pac. Rep. 827.) In What Cases Permissible. § 108. It is the settled doctrine in America that the ques- tion as to the kind of notice required in any class of cases, in actions and proceedings against its own citizens is a mat- ter entirelv within the control of the state, just so long as the federal constitutional inhibition against the taking of prop- erty without due process of law is not contravened. Ac- cordingly, constructive notice may be prescribed as a sub- stitute for actual notice in any case when this is not m viola- tion of the constitutional guaranty. But this right does not extend to actions wherein a purely personal judgment is sought to be obtained upon published notice, notwithstanding the defendant be a resident of the state, such judgment be- ing unalterably void. '(Griffith v. Harvester Co.. 92 Iowa, 634-61 N W Rep. 243 - M A»u St. Re P . 573; Bardwell v. Collins. 44 Minn. 97-46 N W Rep_ 315 -0 L. St Rep. 547; Eliot v. MeCormick, 144 Mass. 10-10 * E Rep. 705; Brown v. Campbell. 100 Cal. 635-35 Pac. Rep 433 -38 Am St. Bep. 314; Real Estate Co. v. Hendrix, 28 Ore 485-42 Pac. * p_ 514- 52 Am St Rep. 800; Winrfree v. Bagley, 102 N. C. 515-9 S. E. Rep. 198; Rank V. Bank, 83 Tenn. 279-12 S. W. Rep. 545.) 122 VOID JUDICIAL AND EXECUTION SALES. Although a personal judgment binding the defendant per- sonally and creating a general lien upon his property can not be rendered upon constructive service of process only, yet in proceedings in ran against his property previously seized constructive notice is sufficient to support a judgment of con- demnation of the property thus subjected for the payment of such claims as the plaintiff asserts. (Lydiard v. Chute, <15 Minn. 277 — 47 N. W. Rep. 967; Brown v. Camp- bell, 100 Cal. 635 — 35 Pac. Rep. 433 — 38 Am. St. Rep. 314; Real Estate Co. v. Hendrix, 28 Ore. 485 — 42 Pae. Rep. 514 — 52 Am. St. Rep. S00; Quarle v. Abbett, 102 Ind. 233 — 1 N. E. Rep. 476 — 52 Am. Rep. 662; Smith v. Griffin, 59 Iowa, 409 — 13 N. W. Rep. 423; Cooper v. Reynolds, 10 Wall. 308; Pennoyer v. Neff, 95 U. S. 714.) And publication is also permissible in actions for the en- forcement of some instruments giving specific liens upon property, whether real or personal, situated within the ter- ritorial jurisdiction of the court, such as the foreclosure of mortgage and other liens. (Crombie v. Little, 47 Minn. 5S1 — 50 N. W. Rep. 823.) Constructive service is also authorized in proceedings af- fecting the title to land lying within the state, such as in actions to remove a cloud or to quiet title, to set aside fraudulent conveyances, to establish a trust in lands, and the like. (Hardy v. Beaty, 84 Tex. 562 — 19 S. W. Rep. 778 — 31 Am. St. Rep. 80; Adams v. Cowles, 95 Mo. 501 — S S. W. Rep. 711 — 6 Am. St. Rep. 74; McLaughlin v. McCrary, £5 Ark. 442 — 18 S. W. Rep. 762; Dillon v. Hiller, 39 Kan. 599 — 18 Pac. Rep. 693; Land & Water Co. v. Boskin. 43 Fed. Rep. 323; Bridge Co. v. Packing Co., 46 led. Rep. 584; Morris v. Graham, 51 Fed. Rep. 53.) In Iowa it was held that notwithstanding the debtor's lands were properly attached and due service was made by publication, if a personal judgment is rendered against him and the attached lands sold under execution, the sale of the lands is illegal and void, and the title deraigned through such proceeding is a nullity. (Cassidy v. Woodward, 77 Iowa, 354 — 42 N. W. Rep. 319.) Amendment of Complaint. § 109. Where jurisdiction is acquired solely by the seizure or attachment of the defendant's property located within the CONSTRUCTIVE SERVICE OF PROCESS OR NOI I 123 territorial jurisdiction of the court followed by a valid publi- cation of notice, the plaintiff is restricted to the cause of action set out in his complaint, and on the plainest of prin- ciples can not enlarge his original cause of action against the defendant, bv an amendment, wh< aidant does not voluntarily "appear in the action. The admonition ex tended to the defendant by the publication, in contemplation of law brings him before the court, in case of his non-ap- pearance, only for the purposes of the action as it existed at the time he was constructively notified and for no other purpose. Consequently, for this purpose only was his prop- erty subjected bv attachment, and a judgment rendered tor anything else is manifestly void to an equal degree as if no seizure at all had been made, in which case the judgment would be a nullity. TTonee, if the judgment in such case is an entirety it is totally void, and if sequestered, the judgment on the cause of action added by amendment at least is void. On principle it would seem that the invalidity m each case may be successfully shown in a collateral proceeding as the defect is apparent upon the face of the record. (Roberts v. Improvement Co.. 126 Mo. 460-29 8. W. Rep. 548: Stew- ar W ABderson^O Tex. 588-8 8. W. Rep 295; Vorce v. Fag. 28 Neb 294-44 N. W. Rep. 452; Mudge v. Steinhart. 78 CaL 34-20 Pac. Rep. 17; Janney v. Spedden, 38 Mo. 395; McMixm v. Whelan, 27 Cal. 300; Boswell v. Dickinson, 4 McLean, 262.) What Affidavit for Publication Must show. § 110 The course of procedure prescribed by the statutes of the various states for the acquisition of jurisdiction by constructive service of process, where actual notice can not be had, is quite uniform in its principal features. I suaily in order to permit a resort to constructive notice a. a means of bringing the defendant, or his property, within the juris- diction of the court so as to authorize it to adjudicate upon the property, it must be made to appear by affidavit that the cause belongs to the class of cases in which such service is al- lowed Wo this it must be shown that the defendant is a non-resident or can not after due diligence be found withm the state and that one or more of the grounds enumerated in the statute for making publication exist ; or he must show 124: VOID JUDICIAL AXD EXECUTION SALES. some ground upon which a resident defendant may be noti- fied by publication under the statute. (McCracken v. Flanagan, 127 N. Y. 493 — 2S N. E. Rep. 3S5 — 24 \in. St. Rep. 481; Bryan v. Publishing Co., 112 N. Y. 382 — 19 N. E. Rep. 825; Landrue v. Lund, 38 Minn. 538 — 38 N. W. Rep. 699; Ligare v. Railway Co., 76 Cal. 610 — 18 Pac. Rep. 777; Frisk v. Reiglenian, 75 Wis. 499 — 44 N. W. Rep. 766.) Generally only the facts required by -the statute must be made to appear by the affidavit for publication, in order to give the court authority to act. (Games v. Mitchell. 82 Iowa, 601 — 48 N. W. Rep. 941; Anderson v. Goff, 72 Cal. 68 — 13 Pac. Rep. 73 — 1 Am. St. Rep. 34; Taylor v. Ormsby, 66 Iowa, 110 — 23 N. W. Rep. 28S.) Strict Rule Prevails in Some States. § 111. Pursuant to the doctrine announced in some cases the making of the affidavit is an essential jurisdictional step in the proceeding, and a very strict compliance with the statutory requirement in regard to the affidavit is demanded. Thus it has been held that the publication of a summons is wholly ineffectual unless the affidavit had been filed, the filing of which being held a condition precedent to authorize publication, this mode of conferring jurisdiction being purely statutory the requirements of the statute must be complied with or the proceedings are void. (Barber v. Morris, 37 Minn. 194 — 33 N. W. Rep. 559 — 5 Am. St. Rep. 836; Cummings v. Tabor. 61 Wis. 1S5 — 21 N. W. Rep. 72; Murphy V. Lyons. 19 Neb. 689 — 28 N. W. Rep. 328; Brown v. Railway Co., 38 Minn. 506 — 38 N. W. Rep. 698; Anderson v. Coburn, 27 Wis. 562.) Thus it is held in Nebraska that if the affidavit required by the statute is filed immediately after the first publication the judgment is nevertheless void. (Murphy v. Lyons, 19 Neb. 689 — 28 N. W. Rep. 328.) Liberal Rule Elsewhere. § 112. On the other hand it is elsewhere contended that the total absence of the affidavit upon which the order of publication is based is not such a jurisdictional defect as would be fatal to the validity of the judgment, and this especially where the order recites that the fact was made to appear that the defendant is a non-resident of the state. In COXSTKUCTIYE SERVICE OF PROCESS OK NOTICE. 125 such case the same favorable presumption being indulged as in case of personal service. (Hardy v. Baty, 84 Tex. 062-19 S. W. Rep. " S -^ te ^- 80; Ward v. Lowndes, 96 N. C. 367-2 S. E. Rep. 591, btawut v. Anderson, 70 Tex. 588 - 8 S. W. Rep. 295 ; .loan v. 1 hompson 4 Civ. App. 419-23 S. W. Rep. 613; Newcomb v. Newcomb, 13 Bu.h, 371.) Probative Facts Must Appear. S 113 In nearly all of the states it is necessary in order to justify constructive service that the affidavit does not only show the defendant's non-residence, but also that he can not, after due diligence, be found within the state. I he Probative facts must be disclosed showing what was done toward find- ing the defendant within the state, thus enabling the court to determine whether such acts constitute due diligence or not. Accordingly, when any facts are thus stated showing what was done toward ascertaining the defendants where- abouts, jurisdiction attaches sufficiently to determine their sufficiency, and if held to be sufficient the judgment based upon notice given under it can at most be but erroneous, and therefore not open to collateral impeachment. (McCraeken v. Flanagan. 127 N. Y. 493 - 28 K . E Re p 3 Sender- son V. Marshal, 7 Mont. 288-16 Pac. Rep. 576; *f™\^f*> 13 Mont. 184-33 Pac. Rep. 132; Beach v. Beach, 6 DaL 3d « W Bop 701; Landru v. Lund, 38 Minn. 538-38 N. W. Rep. 699, Ligare ^Railway Co., 76 Cal. 610-18 Pac. Rep. 777; Behnon £ <«£ JJ N. Y. 256; Pike V. Kennedy, 15 Ore. 420-15 Pac. Rep. 63,; McDonald v. Cooper, 32 Fed. Rep. 745.) It is fundamental that if personal service can be had upon defendant constructive service is not authorized. Therefore, where the statute requires the affidavit for publication to show, in addition to the fact that the defendant is a non- resident that service can not be made upon him within the borders of the state, the failure to allege the impossibility ot personal service within the state renders the whole proceed- ing null and void. (McCracken v. Flanagan. 127 N. Y. 493-28 N. E. Kep. v . Waster, 13 Mont. 184-33 Pac. Rep. 132; Adams v. Baldwin, Kan. 7S1 — 31 Pac. Rep. 681.) In New York it is held that the affidavit must show that the defendant can not be found within the state after using 126 VOID JUDICIAL AXD EXECUTION SALES. due diligence. If the affidavit fails to show due diligence there is a failure of jurisdiction no matter how minutely every other statutory requirement has been complied with, and a sale of land under the coercive process of the law emanating from a judgment rendered upon such service is void in a collateral proceeding in ejectment. (McCracken v. Flanagan, 141 N. Y. 174 — 36 N. E. Eep. 10.) But in Oregon it was held that where the affidavit alleges that summons cannot be served on defendant because he re- sides at a particular place named therein, beyond the borders of the state, it was sufficient to confer jurisdiction. (Pike v. Kennedy, 15 Ore. 420 — 15 Pac. Rep. 637.) The Nebraska statute requires the affidavit to state that service can not be made within the state, and the affidavit stated in substance that defendants are non-residents, and that service of summons can not be made upon them, which was held to be a defective averment rather than an entire omission of an essential fact. Notwithstanding the insuffi- cient averment of a material fact, the proceedings were not considered void. (Britton v. Larson, 23 Neb. 806 — 37 N. W. Eep. 681.) While in Montana and New York the requirement of showing due diligence in the affidavit is imperative, and an averment in the language of the statute is considered in- sufficient, but the facts constituting due diligence must be shown, in Oregon and Washington it was held that the mere allegation of due diligence in the language of the statute was sufficient to shield the judgment from collateral assault at least. (Alderson v. Marshal, 7 Mont. 288 — 16 Pac. Eep. 576; Palmer v. McMaater, 13 Mont. 184 — 33 Pac. Rep. 132; McCracken v. Flanagan, 127 N. Y. 493 — 28 N. E. Eep. 385; McCracken v. Flanagan, 141 N. Y. 174 — 36 N. E. Eep. 10; Barton v. Sanders, 16 Ore. 51 — 16 Pac. Eep. 921; De Corvet v. Dolan, 7 Wash. 365 — 35 Pac. Eep. 72.) Facts Inferentially Stated Only. § 114. In Kansas where the essential facts were inferen- tially stated in the affidavit instead of being expressly set out, the judgment was held not to be a nullity but merely CONSTRUCTIVE SERVICE OF PROCESS OB NOTICE. 127 erroneous and voidable, because the affidavit is not void for an entire want of disclosing such essential facts, but merely irregular in not stating them in direct and exact terms. (Long v. Fife, 45 Kan. 271 — 25 Pac. Rep. 594; Shippen V. Kimball, 47 Kan. 173 — 27 Pac. Rep. 813.) But it has been held that where there is a statute requiring- that the affidavit shall show that the defendant has property within the state, such showing should not only be direct but the property should be specifically described, and a state- ment on information and belief is insufficient, and an entire omission of the statement is fatal. (Feikert v. Wilson. 38 Minn. 341-37 N. W. Rep. 5S5 ; McDonald v. Cooper, 32 Fed. Rep. 745; Manning v. Hardy, 64 Wis. 630 — 25 N. W. Rep. 1.) Affidavit must show Action to be One Mentioned in Statute. § 115. In Kansas it is held that the affidavit for publica- tion must show that the action is one of those designated in the code wherein constructive service of process may be had, and if this is not so shown the defect is jurisdictional and fatal to the validity of the judgment. (Adams v. Baldwin, 49 Kan. 781-31 Pac. Rep. 6S1; Harris v. Ciafiin, 36 Kan. 543 — 13 Pac. Rep. 830.) Affidavit on Information and Belief. § 116. Though some facts must be positively stated in the affidavit, as for instance that the defendant has property within the state, yet as to other matters a statement upon information and belief is considered sufficient at least upon collateral attach. (Van Wyck v. Hardy, 39 How. Pr. 392; Harrison v. Beard, 30 Kan. 53^-2 Pac. Rep. 632; Colton v. Rupert, 60 Mich. 318 — 27 N. W. Rep. 520; Long v. Fife, 45 Kan. 271 — 25 Pac. Rep. 594; Sonnoner v. Jackson, 47 Ark. 31 — 14 S. W. Rep. 458.) But where the statute requires positive averments in an affidavit for attachment, a verification upon hearsay and belief was held void and the court acquired no jurisdiction by constructive service of process. (Trautmann v. Schwalm, 80 Wis. 275-50 N. W. Rep. 99; Streiss- guth v. Reigleman, 75 Wis. 212-43 N. W. Rep. 1116.) 128 VOID JUDICIAL AXD EXECUTION SALES. If the affidavit on information and belief foUows the exact language of the statute it is sufficient. (Storm v. Adams, 56 Wis. 137 — 14 N. W. Rep. 69.) Object and General Nature of the Action. § 117. In the requirement of the statute existing in some states regarding a brief statement of the object and general nature of the action to be contained in the affidavit for publi- cation less strictness is demanded than perhaps of any other provision of the statute, a very general statement being held sufficient to meet the requirement. (Adams v. Cowles, 95 Mo. 501 — 8 S. W. Rep. 711; McCormick v. Paddock, 20 Neb. 486 — 30 N. W. Rep. 602.) Affidavit Must be Filed Before the Publication. § 118. Substantial defects vitiate the published notice, and if the affidavit authorizing publication of process is filed too late, that is after the first publication instead of before, it is a fatal defect, exposing the judgment subsequently rendered thereon to successful collateral assault. (Murphy v. Lyons, 19 Neb. 689 — 28 N. W. Rep. 328; Barber v. Mor- ris, 37 Minn. 194 — 33 N. W. Rep. 559; Brown v. Railway Co., 38 Minn. 506 — 38 N. W. Rep. 698.) Eelation of Affidavit to Order of Publication. § 119. The affidavit of non-residence must relate to the time of the order of publication, and must be made con- temporaneously with it, or so nearly so that it is reasonably certain that no change could have taken place by which the right to have constructive service made was impaired or affected. (Crombie T. Little, 47 Minn. 581 — 50 N. W. Rep. 823; Baptist Union v. Atwell, 95 Mich. 239 — 54 N. W. Rep. 760; Cornwall v. Bank, 91 Ky. 381—18 S. W. Rep. 452; Adams v. Hosmer, 98 Mich. 51 — 56 N. W. Rep. 1051; Forbs v. Hyde, 31 Cal. 342.) False Statement as to Cause of Action. § 120. The false averment in the affidavit that the plain- tiff had a cause of action when in fact he had none, will not make the judgment rendered upon constructive service of notice void in a collateral proceeding, though the judgment CONSTBTJCTIVE SEBVICE OF 5S OR NOT] 129 may be vacated in a direct action for that purpose upon the ground that jurisdiction was fraudulently obtain* (Lawson v. Moorman, 85 Va. 880 — 9 S. E. Rep. 150.) Affidavit and Complaint. § 121. In Michigan the statute requires that the declara- tion shall be filed after proof of publication is made. If the declaration is filed before the making of the proof the judgment is a nullity and may be successfully impeached in a collateral action. (Nugent v. Nugent, 70 Mich. 52 — 37 N. W. Rep. 706; Steere v. Van- derberg, 67 Mich. 530 — 35 N. W. Rep. 110.) Verified Complaint Must be Filed. § 122. In some states where the statutes require that the order of publication must be based upon a Complaint duly verified and filed, showing a sufficient cause of action, an order for service of summons by 'publication not based upon a verified complaint and filed is void, and will not support a judgment. The order providing for constructive service can- not be granted except on a complaint duly verified and filed, and the affidavit, together disclosing the existence of the necessary facts required by the statute. (Oelbermann v. Ide, 93 Wis. 669 — 68 N. W. Rep. 393; Witt v. Meyer, 69 Wis. 595 — 35 N. W. Rep. 25; Manning v. Heady, 64 Wis. 630 — 25 N. W. Rep. 1; Paget v. Stevens, 143 N. Y. 172 — 38 N, E, Rep. 273; Cummings v. Tabor, 61 Wis. 185 — 21 N. W. Rep. 72; Bryan v. Pub- lishing Co., 112 N. Y. 382 — 19 N. E. Rep. 825; Frisk v. Reigleman, 75 Wis. 499 — 43 N. W. Rep. 1117; Bragg v. Gaynor, 85 Wis. 468 — 55 N. W. Rep. 919; Voelz v. Voelz, 80 Wis. 504 — 50 N. W. Rep. 398; Charles v. Morrow, 99 Mo. 638 — 12 S. W. Rep. 903.) Excepting where the complaint must show a cause of action authorizing constructive service the affidavit is the sole foundation for the publication, or order therefor, and the insufficiency of the complaint will not be a ground for setting the notice aside. (Mehrhoff v. Diffenbacker, 4 Ind. App. 447 — 31 N. E. Rep. 41.) Facts Authorizing Constructive Service Shown by Return. § 123. Where the statute provides that certain facts neces- sary to authorize constructive service shall be made to appear by the return of the sheriff upon the summons or 9 130 VOID JUDICIAL AND EXECUTION SALES. citation, to this extent the return takes the place of the affi- davit. Such return must disclose a state of facts bringing the case within the statute before publication is authorized. (Trust Co. v. Buddington, 27 Fla. 215 — 9 So. Rep. 251; Eliot v. Mc- Cormick, 144 Mass. 10 — 10 N. E. Rep. 709.) Thus in Colorado a strict compliance with the statute in acquiring jurisdiction by this method is exacted, and a sum- mons issued, and returned by the sheriff the same day in- dorsed " not found " the decree upon published process based thereon was held void, (Israel v. Arthur, 7 Colo. 5 — 1 Pac. Rep. 438.) and in Michigan where the sheriff returned the writ four days before its return day, it was held that he failed to ex- ercise due diligence as required by statute, his affidavit to the effect that he did use due diligence to the contrary notwith- standing, and the decree in foreclosure upon published notice and sale thereunder were considered nullities. (Soule v. Hough, 45 Mich. 418 — 8 N. W. Rep. 50.) Suits against Defunct Corporations in Michigan. § 124. In case of suit against a defunct corporation the statute required service to be made upon the last of certain designated officials thereof, and if none of these can be found, then upon some other officer or member, or in the alternative in such manner as the court where the action is pending may direct. The proceedings were held void where the affidavit charged that there is no officer of the corporation residing in the county, save two persons shown to have held the position of directors, upon which affidavit the court ordered service to be made on some other than the designated officers. Service thus made was held void because there is no showing that such officers could not be served within the territorial limits of the court. (Isabel v. Iron Co., 57 Mich. 120 — 23 N. W. Rep. 613 ; Rolfe v. Dud- ley, 58 Mich. 208 — 24 N. W. Rep. 657.) Order of Publication Must Contain Essential Particulars. § 125. In order to constitute sufficient notice to the de- fendant the order of publication must conform to the require- ments of the statute in every particular. Accordingly, if the CONSTRUCTIVE SERVICE OF PROCESS OR NOTICE. 131 statute requires that the summons be mailed to the defendant as well as published, such order must direct the mailing, and if this is omitted from the order it is held that the judgment is void. The provision of the law requiring such recital is mandatory and the recital a matter of substance. (Beaupre v. Keefe, 79 Wis. 436 — 48 N. W. Rep. 596; Park v. High- bee. G Utah. 414 — 24 Pac. Rep. 524; Rieketson v. Richardson. 26 Cal. 140; Fites v. Volmer, S N. Y. Supp. 294; Odell v. Campbell, 9 Ore. 298.) But the omission of the word " forthwith " from the order, though the statute requires the summons and complaint to be mailed forthwith, will not expose the proceedings to success- ful collateral impeachment. (Anderson v. Goff, 72 Cal. 65 — 13 Pac. Rep. 73.) Issued by Clerk without Order from Court. § 126. An order of publication issued by the clerk without an order from the court or judge authorizing it is void and the judgment rendered upon publication of such order, and the sale of property thereunder, are void for want of juris- diction. (Royer v. Foster, 62 Iowa, 321—17 N. W. Rep. 516; Miller v. Corbin, 46 Iowa, 150; Bardsley v. Hines, 33 Iowa, 157.) Misnomer of Plaintiff or Defendant. § 127. In the absence of an appearance the misnomer of the plaintiff or defendant in the affidavit for publication will be fatal to the proceedings. (Newman v. Bowers, 72 Iowa, 465 — 34 N. W. Rep. 1051.) So it has been held that a misnomer of the defendant in the published process is a fatal error and will render the judgment which is based thereon void. (Meyer v. Kuhn, 13 C. C. A. 298 — 65 Fed. Rep. 705; Carrigan v. Schmidt. 126 Mo. 304 — 28 S. W. Rep. 874; Hardester v. Sharrett, 84 Md. 146 — 34 Atl. Rep. 1122; Skelton v. Sackett, 91 Mo. 377 — 3 S. W. Rep. 874; Newman v. Bowers, 72 Iowa, 465 — 34 N. W. Rep. 212; Clerk v. Hillis, 134 Ind. 421 — 34 N. E. Rep. 13; Railway Co. v. Smith, 78 111. 96.) Order Providing for Unauthorized Service. § 128. The order is the authority for making the service by publication, and if it provides for an unauthorized service. 132 VOID JUDICIAL AXD EXECUTION SALES. the fact that a proper service was made will be of no avail for the proceedings are nevertheless void ; (Beaupre v. Keefe, 79 Wis. 436 — 48 N. W. Rep. 596.) though surplusage in the order is immaterial if it is other- wise sufficient in form and substance. (Cruzen v. Stevens, 123 Mo. 335 — 27 S. W. Rep. 557.) Order Abridging the Time for Appearance. § 129. In Minnesota and Kentucky and several other states the statute requires that the order shall expressly re- quire the defendant to appear on a day definite. Where this provision has been contravened by an order providing for the defendant's appearance at an earlier day the service is void and insufficient to confer jurisdiction. (Bird v. Norquist, 46 Minn. 31S — 4S N. W. Rep. 1132; Payne v. Hardesty, 14 S. W. Rep. 348; Brownfield v. Dyer, 7 Bush, 505; Miller v. Hall, 3 T. B. Mon. 243.) However, where there is no such requirement of statute and the defendant must appear and answer within a fixed number of days after publication, a judgment by default granted before the expiration of such period will not be a nullity but merely erroneous, and hence not subject to collateral impeachment. (In re Newman, 75 Cal. 213 — 16 Pac. Rep. 887.) And it has been held that the premature hearing of an action wherein jurisdiction is sought to be acquired by con- structive service of summons will not invalidate the judg- ment so as to make it a nullity. (Carr v. Carr, 92 Ky. 552 — IS S. W. Rep. 453.) Publication for too Short Period. § 130. There is a conflict of authority as to the effect of a summons published for a time less than by law required. Pursuant to some adjudications such service is sufficient to protect the judgment and subsequent proceedings thereunder from successful collateral impeachment. (In re Newman, 75 Cal. 213 — 16 Pac. Rep. SS7; Essig v. Lower. 120 Ind. 239 — 21 N. E. Rep. 1090; Havens v. Drake, 43 Kan. 484 — 23 Pac. Rep. 621; Berrian v. Rogers, 43 Fed. Rep. 467; Herring v. Chambers, 103 Pa. St. 172; Smith v. Dubuque, 1 Iowa, 492; Davis v. Robinson, 70 Tex. 394 — 7 S. W. Rep. 749.) CONSTRUCTIVE SERVICE OF PROCESS OR NOTICE. 133 Other cases are directly in conflict with this rule holding this to be a fatal error. (Bell v. Good, 19 N. Y. Supp. G93.) Mere Irregularities in Notice not Fatal. § 131. Considerable difference is found in the statutes of the several states as to what the publication shall contain, in some a summons is required, while in others the notice must contain the substance of the summons or citation, though in either case a substantial compliance with the statute in this regard will be sufficient. Therefore, mere irregularities in the form of the notice or its publication are not considered jurisdictional defects though they may be of sufficient gravity to avoid the service on a direct proceeding. (Adams v. Cowles, 95 Mo. 501 — 8 S. W. Rep. 711; Webster v. Daniel, 47 Ark. 131 — 14 S. W. Rep. 550.) Death of Defendant Pending Publication. § 132. Constructive service can not be made upon one who is then not living, and if the defendant dies before the com- pletion of the publication the notice and action are sus- pended. If the plaintiff desires to prosecute his action further a new notice must be given to substituted parties. (Thompson v. McCorkle, 136 Ind. 484 — 34 N. E. Rep. 813; Reilly v. Hart, 130 N. Y. 625 — 29 N. E. Rep. 1099; Paget v. Pease, 2 1ST. Y. Supp. 335.) One Publication on Ndn-judicial Day. § 133. In Minnesota it is held that where one of the necessary publications of process was made on a legal holi- day the jurisdiction of the court will not on that account alone be affected. (Malmgren v. Phinney, 50 Minn. 457 — 52 N. W. Rep. 915.) But where by statute the service of a summons on a Sun- day is illegal it is held that publication of a summons against a non-resident on that day is insufficient for any purpose. (McLaughlin v. Wheeler, 1 S. Dak. 497 — 50 N. W. Rep. 834.) Unknown Defendants Served Constructively. § 134. Actions are sometimes commenced which are not strictly in rem, and there are parties defendant who are wholly unknown to the plaintiff, as, for instance, a demand 134 VOID JUDICIAL AXD EXECUTION SALES. against a deceased debtor whose estate consists of lands, and who leaves unknown heirs. Also suits against unknown heirs or devisees in actions to quiet title or to establish an equity in land the legal title to which rests in un- known defendants. Statutes permitting such proceedings have uniformly been construed very strictly, being in deroga- tion to the common law. Accordingly it is held in Alabama that while proceedings against unknown heirs can be main- tained in chancery, the statute not providing for it in pro- bate sales, the proceedings in the latter court are fatally defective. (Bingham v. Jones, 84 Ala. 202 — 4 So. Rep. 409.) All such actions are in the nature of proceedings in rem concerning property situated within the jurisdiction of the court, and it is generally conceded that the state has au- thority to clothe the court with power to inquire into and adjudicate as to the status, title and ownership of such prop- erty, where service by publication only is had. (Shepherd v. Ware. 4G Minn. 174 — 48 X. W. Rep. 773; Barclay v. Hendricks, 4 T. B. Mon. 252.) Under most statutes the affidavit for publication must disclose the name of the defendant against whom the publi- cation is to be made, and the order of publication must run in his name, though under some statutes parties may be pro- ceeded against upon constructive service by fictitious names or as unknown defendants when a showing is made by affi- davit or complaint sworn to that the name of the party is unknown and can not after due diligence be ascertained. Such statutes are not complied with where the affidavit merely shows that the unknown party is a non-resident, but it must also be shown that his name is unknown and can not be ascertained upon using due diligence. (Bleidon v. Canal & Mining Co.. 89 Tenn. 16S — 15 S. W. Rep. 737.) Strict compliance with the requirements of the statute is demanded in order to bind the unknown heirs of a deceased person by constructive notice. Hence a misnomer of the de- cedent is a fatal defect. (HardeBter v. Bharretts, 84 Md. 146 — 34 Atl. Rep. 1122.) CONSTRUCTIVE SEEVICE OF TROCESS OR NOTICE. 135 And where the statute requires the statement in regard to the interest of unknown defendants to be verified the court acquires no jurisdiction unless this is done. (Charles v. Morrow, 99 Mo. 63S — 12 S. W. Rep. 903.) So a proceeding in foreclosure of a tax lien by publication against unknown defendants upon unverified petition where the notice, nor the paper in which it was published, were neither ordered nor approved by the court, the verification, order and approval being statutory requirements, the sale is absolutely void. (Guise v. Earley, 72 Iowa, 283 — 33 N. W. Rep. 683.) Personal Service Outside of the State. § 135. In effect personal service of summons outside of the state is but constructive service and confers no greater- authority upon the court than if the summons had been pub- lished in a newspaper. In many states personal service thus made is allowed, and the proceedings anterior to such service are usually the same as if the summons is to be published. Accordingly the judgment is in rem and the res must have been previously subjected to the jurisdiction of the court by seizure. Or in other words, the court must have acquired jurisdiction provisionally over the property by reason of attachment, or by suit for the foreclosure of mortgage or other lien upon the specific property. A personal judgment upon such service can no more be rendered than where the only summons is a published one. (Wilson v. Railway Co.. 10S Mo. 588-18 S. W. Rep. 286; Wilson v. Seligman, 144 U. S. 41 — 12 Sup. Ct. Rep. 541; Graham v. O'Bryan, 120 x c 403 — 27 S. E. Rep. 122: McBain v. McBain, 77 Cal. 507 — 20 Pac. Rep 61; Brewing Co. v. Hirseh, 7* Tex. 192 — 14 S. W. Rep. 150; Cuda- bac v. Strong, 67 Miss. 705-7 So. Rep. 543: Crouter v. Crouter, 133 N Y 55 — 30 N. E. Rep. 726; Williams v. Welton, 28 Ohio St. 451; National Rank v. National Bank, S9 N. Y. 397; Crouter v. Crouter, 17 N. Y. Supp. 75S.) Affidavit Made by Unauthorized Person. § 136. In Colorado it is held that tin 1 judgment will be void where the affidavit of non-residence is made by the at- torney for the plaintiff, the statute requiring that it shall be made by the party himself. (Davis v. Lumber Co.. 2 Colo. App. 381-31 Pae. Rep. 187; Lumber Co. v. Park, 4 Colo. App. 482 — 36 Pac. Rep. 445.) .136 VOID JUDICIAL AXD EXECUTIOX SALES. Publication against Unknown on Petition against Known Owner. § 137. In condemnation proceedings in Illinois where the petition mentions a party defendant as a known owner, par- ticularly describing his lands, publication of process against unknown owners is insufficient in the absence of other ser- vice to confer jurisdiction to condemn the property of the known owner, and the judgment of condemnation against him and his property is an absolute nullity. fDickey v. Chicago, 152 111. 468 — 38 N. E. Rep. 932.) DISQUALIFICATION OF JUDGE. Renders Proceedings Invalid. § 138. Notwithstanding the law confers jurisdiction of the subject-matter of the action upon the court, and despite the fact that jurisdiction of the person of the defendant has been regularly acquired, yet on account of the disqualification of the presiding judge of the court from presiding as such in the particular cause, the court can not proceed to judgment therein. Accordingly, if such judge, notwithstanding his incompetency by reason of disqualification, still proceeds with the cause, the final judgment thus rendered is generally con- sidered to be invalid. Therefore, the previous relation of attorney and client disqualifies a judge from sitting in the case even in the absence of statutory provision making such relation a disqualification, for the rule is but the evolution of the elementary maxim of common justice that prohibits one from acting as judge in his own lawsuit. (Railway Co. v. Railway Co., 30 Fla. 595 — 11 So. Rep. 562; State v. Hooker, 15 So. Rep. 583 ; Curtis v. Wilcox. 74 Mich. 69 — 41 N. W. Rep. 863; Gaines v. Barr, 60 Tex. 676; Moser v. Julian. 45 X. H. 52.) Statute Contravened Makes Proceedings Void. § 139. Where judges are prohibited by law from acting in special cases, as where interested, or a party, or relation by consanguinity or affinity to either party, it lias often been held and is the settled doctrine that the action of the judge in contravention of the statute is coram non jlldice and void, to the extent that it may be successfully impeached in a col- lateral proceeding. This rule has been applied with such DISQUALIFICATION OF JUDGE. 137 inexorable rigidity that when a judge is thus disqualified from acting, not even the consent of parties interested can vest him with authority to act in the case. (Dallas v. Peacock, 89 Tex. 58 — 33 S. VV. Rep. 220; Chambers v. Hodge, 23 Tex. 104; Moses v. Julian, 45 N. H. 52 — 84 Am. Dec. 114; Frevert v. Swift, 19 Nev. 3G3 — 11 Pac. Rep. 273 ; Hall v. Thoyer, 105 Mass. 219 — 7 Am. Rep. 513.) The policy of the law in its tendency to maintain the un- sullied purity of judicial tribunals militates against the granting of permission to contravene the statutory limita- tions and brands as void the acts, orders and judgments of a court when the judge has transcended his authority under such circumstances. The impartiality which the law requires of a judge is wholly incompatible with his own actual pe- cuniary interest, or the interest by implication by reason of relationship to the litigants. (Hortou v. Howard, 79 Mich. 642 — 44 N. W. Rep. 1112; Railway Co. v. Summers. 113 Ind. 10 — 14 N. E. Rep. 733; Keeler v. Stead, 50 Conn. 501 — 16 Atl. Rep. 552; Frevert v. Swift, 19 Nev. 363 — 11 Pac. Rep. 273; State ex rel. Colcord v. Young, 31 Fla. 594 — 12 So. Rep. 673; West v. Wheeler, 49 Mich. 505 — 13 N. W. Rep. 836; Austin v. Nalle, 85 Tex. 520 — 22 S. W. Rep. 668; Newcome v. Light, 5S Tex. 141 — 44 Am. Rep. 604; Hall v. Thayer, 105 Mass. 219 — 7 Am. Rep. 513; Burks v. Bennett, 62 Tex. 277; Oakley v. Aspinwall, 3 N. Y. 547; Tn re Manu- facturing Co., 77 N. Y. 101; In re Ryers, 72 N. Y. 1.) Thus, where the statute prohibited a town from institut- ing a suit before a justice residing therein, the judgment was held void because the justice was without authority to act. (Heagle v. Wheeland, 64 111. 423.) So in Connecticut, where there is a statutory inhibition against any person acting as a justice in any civil action wherein the writ or declaration had been filled up by any person occupying the same office with him, unless in case of an express waiver of the disqualification in writing by the defendant, there was no waiver, and notwithstanding the defendant was fully cognizant of the facts, he went to trial without urging objections to the jurisdiction and the judg- ment was held to be void. (Keeler v. Stead, 56 Conn. 501 — 16 Atl. Rep. 552.) 138 TOID JUDICIAL AXD EXECUTION SALES. The statutory inhibition is enforced to the extent that under such circumstances the office is considered vacant in a judicial sense, and the acts performed in violation of the provision are devoid of judicial sanction and nullities. The rule at common law where such acts were considered voidable merely has thus been radically modified. At common law the acts and proceedings of a disqualified judge were considered in the light of errors or irregularities available on appeal, but not of sufficient gravity to render them void at law. (Findlcy v. Smith, 42 W. Va. 299 — 26 S. E. Rep. 370.) LOSS, EXCESS AXD SUSPEXSIOX OF JUEIS- DICTIOX. Jurisdiction Generally Continues until Judgment. § 140. As a general rule when jurisdiction has once been conferred it will continue until the final determination and disposition of the questions and issues involved in the contro- versy. Therefore, when jurisdiction of the defendant has once been fully acquired, it is not exhausted until the judg- ment of the court is satisfied. (Barton v. Sanders, 16 Ore. 51 — 16 Pac. Rep. 921; Dorr v. Rohr, 82 Va. 359 — 3 Am. St. Rep. 106.) Lost by Appeal or Removal. § 111. The rule that jurisdiction when once acquired con- tinues until final judgment is however not an inexorable one, and circumstances may happen by which the court may lose the jurisdiction which theretofore had been conferred upon or acquired by it in the cause, whereupon its power to far- ther proceed in the case is unconditionally terminated. Hence, npon the perfection of a valid appeal the court from which the appeal was taken is ousted of jurisdiction, and by the removal of the ease from the state to the federal court a similar effect is produced on the former court, and its subsequent action in the case is unwarranted. (Brady v. Burk, 90 Cal. 1 — 27 Pac. Rep. 52; Steamship Co. v. Tup- man, 106 U. S. US — 1 Slip. Ct. Rep. 58; Railroad Co. v. Koontz, 104 U. S. 1): McKinney v. Jones, 57 Wis. 301 — 15 X. W. Pep. 160; Me- Arthur v. Dane, 61 Ala. 539; Poynton v. Foster, 7 Met. 415.) LOSS, EXCESS AXD SUSPENSION OF JURISDICTION. 139 Lost During Intervals between Regular Terms. § 142. Where regular terms of court for the trial of causes are by statute required to be held at stated times, in the interim between such terms, the court has no authority to try such causes as may be pending therein, as its powers are suspended during the intervals between terms, to the same extent as if its authority over the case were entirely withdrawn, and it was in fact no longer a court for the purpose of the trial. Jurisdiction can not be conferred upon it during such time even by the consent of parties, and any judgment it may render is wholly void. (Bank v. Neel, 53 Ark. 110 — 13 S. W. Rep. 700; Kinports v. Rawson, 20 W. Va. 4S7 — 2 S. E. Rep. 85; Laughlin v. Peckham. 66 Iowa, 121 — 23 N. W. Rep. 294; Balm v. Nunn, 63 Iowa, 641 — 19 N. W. Rep. 810; King v. Green, 2 Stew. 133 — 19 Am. Dec. 46; Davis v. Fish, 1 G. Greene, 406 — 48 Am. Dec. 387; Bruce v. Doolittle, SI 111. 103; Norwood v. Kenfield. 34 Cal. 329; Wicks v. Ludwick, 9 Cal. 173; Campbell v. Chandler, 37 Tex. 32; Garlick v. Dunn. 42 Ala. 404; Galusha v. Butter- field, 2 Scam. 227; Earl v. Earl, 27 Kan. 538; Francis v. Wells, 4 Colo. 274; Marshall v. Ravisies, 22 Fla. 583; Hernandez v. James, 23 La. Ann. 483.) So, if a judicial district contains two or more counties, and a term of court has been commenced in one of the coun- ties, a cause can not be tried in another county at the same time. Not even the stipulation of the parties can impart validity to such a proceeding. (Bates v. Gage, 40 Cal. 183.) Non-attendance of Judge. § 143. The non-attendance of a judge at the time fixed by law for the commencement of a term of court causes a lapse and loss of the term, although an attempted and unwarranted adjournment was made by the clerk, and all proceedings at such adjourned term are void, the presence of the judge at the time appointed by law for opening the term of court is absolutely indispensable to the validity of subsequent pro- ceedings. (In re McCla^ky. 52 Kan. 34 — 34 Pac. Rep. 459; Insurance Co. v. Pappe, 43 Pac. Rep. 1085; Wilson v. State, 35 S. W. Rep. 390; Hobart v. Hobart, 45 Iowa, 503.) 140 VOID JUDICIAL AXD EXECUTION SALES. Court Sitting Outside of County. § 144. In Iowa it is held that a circuit court of a particular county can not sit outside of such county, and any order made or judicial act done while sitting outside of such county is void. But in Missouri and Ohio, where this question has been judicially determined, a contrary conclusion has been reached, and the inference drawn from the adjudications in these states abundantly support the contention that such acts are not void collaterally. Indeed, that courts, when neces- sary, may hold their sessions and pronounce judgment at different places, in the same state, than those designated by law. ( (Casey V. Stewart, 60 Iowa. 160 — 14 X. W. Rep. 325: Hemdon v. Hawkins, 65 Mo. 265; Le Grange v. Ward, 11 Ohio, 257.) Jurisdiction Exhausted over Subject-matter. § 145. If during the proceedings in a particular cause the jurisdiction over the subject-matter has been completely exhausted, it also exhausts that of every other court having concurrent jurisdiction over the same subject-matter. Thus, the jurisdiction of the probate court is exhausted by the consummation of a valid sale of land under the order of the court, the ownership thereof being thereafter vested in the purchaser. Manifestly if the same land be subsequently again sold under the judgment of another court also having probate jurisdiction, in the same estate, and as the property of the estate, whether the purchaser at such second sale be a bona fide or a male fide purchaser, the sale is absolutely void because the jurisdiction over the land was completely ex- hausted at the first sale, and in making the second sale the court transcended its authority by the unwarranted assump- tion of authority over the property of another person. (Unsay v. Jaffray. 55 Tex. 626; Smith v. Woolfolk, 115 TJ. S. 143 — 5 Snp. Ct. Rep. 1177.) Judgment beyond the Issues. § 146. If the relief granted be such as is not within the power of the court to grant, to the extent at least that the authority has been exceeded, the judgment is unquestionably void npon the plainest of elementary and fundamental prin- ciples. LOSS, EXCESS AND SUSPEXSIOX OF JURISDICTION'. 141 (Beach v. Atkinson, 87 Ga. 2SS — 13 S. E. Rep. 591; McFadden v. Whitney, 51 N. J. L. 391 — 18 Atl. Eep. 62; Bunch v. Spotts, 57 Ark. 257 — 21 S. W. Rep. 437; Bishop v. Freeman, 42 Mich. 533 — 4 X. W. Rep. 290; Bridges v. Supervisors, 57 Miss. 252.) Therefore, a judgment or decree in effect foreign to the issues or matter involved in the legal controversy is mani- festly without legal effect for excess of jurisdiction, and nowhere entitled to the least respect or consideration as a judicial sentence. (Reynolds v. Stockton, 43 N. J. Eq. 211 — 10 Atl. Rep. 385; Jones v. Davenport, 45 X. J. Eq. 77 — 17 Atl. Rep. 570; Mundy v. Vail, 5 Vrcom, 418; Gille v. Emmons, 58 Kan. 118 — 48 Pae. Rep. 569; Falls v. Wright, 55 Ark. 562 — 18 S. W. Rep. 1044.) But it has been held that where a judgment is rendered in excess of the amount demanded, it is erroneous only, and not susceptible of collateral impeachment for that reason. (Gillett v. Truax, 27 Minn. 528 — 8 N. W. Rep. 767; Chaffee v. Hooper, 54 Vt. 513.) That a decree rendered in excess of jurisdiction to the extent of determining a matter not in issue, and neither directly nor indirectly involved in the controversy, is void and subject to collateral attack, is a proposition settled be- yond the peradventure of a doubt. So where suit was instituted by a widow for the assignment of dower in the lands of her deceased husband, and all interested parties were made defendants, and in the judgment thus rendered it was directed not only as to the assignment of dower, but also directed, without suggestion, that a sale be made of the re- maining lands of the estate, the decree of sale is void for having been rendered in excess of jurisdiction, and may be called in question in a collateral proceeding. (Seamster v. Blackstock, S3 Va. 232 — 2 S. E. Rep. 36.) And so on similar principles a money judgment rendered against the surety of a defaulting purchaser at a judicial sale, upon a rule against such purchaser and surety, is against every sound principle of jurisprudence, extra-judicial and void. (Anthony v. Kasey, 83 Va. 338 — 5 S. E. Rep. 176.) 142 VOID JUDICIAL AXD EXECUTION SALES. Justice of the Feace Absent on Day of Trial. § 147. In Kansas it is held that where the justice was absent on the day set for trial, his subsequent action in the cause is coram non judice and void, because he lost juris- diction of the case by reason of his absence. This is the gen- eral rule in this regard. (Olson v. Xunnally. 47 Kan. 391 — 28 Pac. Rep. 149.) Other Fatalities in Justice's Proceedings. § 148. In Wisconsin it is held that when a justice of the peace fails to enter in his docket the time when and place where a cause pending before him is continued, his jurisdic- tion ceases and his subsequent acts, in the absence of a volun tary appearance after the continuance, are void. (Witt v. Henze. 58 Wis. 244 — 16 X. W. Rep. 609; Brahmstead v. Ward, 44 Wis. 591.) If the entries in the judgment docket of a justice of the peace show that a judgment was entered on a day on which he was not within the state, it has been decided that the judgment was void for want of jurisdiction. (Toliver v. Brownell, 94 Mich. 577 — 54 X. W. Rep. 302.) By statute a judgment on a verdict in a justice's court, in favor of either party, shall be forthwith entered, but the judgment was not entered until fourteen hours after the verdict was received, though on the same day, and the judg- ment was decided to be void. (Hull v. Mallory, 56 Wis. 355 — 14 X. W. Rep. 374: Smith v. Rahr, 62 Wis. 244 — 22 X. W. Rep. 438.) And where the word " forthwith " in this regard is con- strued to mean within a reasonable time, a judgment in a justice's court entered ninety days after the return of the verdict is void for loss of jurisdiction. (Tomlinson v. Fitze, 82 Iowa, 32 — 47 X. W. Rep. 1015.) EFFECT OF WA!N T T OF JUKISDICTIOX Makes the Judgment and Froceedings Void. § 140. As a matter of neeo^ity. a judgment, order or dor-roe, wherever and whenever rendered, which is void ia no more effective, in contemplation of law, than if it were non- EFFECT OF WANT OF JURISDICTION. 143 •existent. The conclusion is then inevitable that wnatever proceedings have been had thereunder, as well as all pre- tended rights founded thereon, are equally with the judgment unalterably void. As water can rise no higher than its source, so claims founded upon a void judgment are also void. Hence, a sale based upon such a judgment is without warrant in law and nugatory, (Barber v. Morris, 37 Minn. 194 — 33 N. W. Rep. 559; White v. Foote Lumber Co., 29 W. Va. 385 — 1 S. E. Rep. 572; Railway Co. v. Summers, 113 Ind. 10 — 14 N. E. Rep. 733; Paul v. Willis, 69 Tex. 261 — 7 S. VV. Rep. 357; Cattle Co. v. Boon, 73 Tex. 548 — 11 S. W. Rep. 544; Winn v. Strickland, 34 Fla. 610 — 16 So. Rep. 606.) It is an unalterable rule that a judgment rendered by a judicial tribunal where there is a want of jurisdiction over the subject-matter or of the person of the defendant is an absolute nullity. In form it may be a judgment but in, sub- stance and reality not, Its apparent mandates are incapable of enforcement, and it is no protection to him who geeks to* en- force it under process emanating therefrom, for it is wholly unavailable for any purpose, neither binding nor barring any one. (Moyer v. Buck. 2 Ind. App. 571 — 2S N. E. Rep. 992; Furgeson V. Jones, 17 Ore. 204 — 20 Pac. Rep. 842; Briekhouse v. Sutton, 99 N. C. 103 — 5 S. E. Rep. 380; Wall v. Wall, 123 Pa. St. 545 — 16 Atl. Rep. 598] Fiankel v. Satterfield, 9 Hcust. 201 — 19 Atl. Rep. SOS; Ex parte Sawyer, 124 U. S. 200 — 8 Sup. Ct. Rep. 482; Bigelow v. Stearns. 19 Johns. 39 — 10 Am. Dec. 189.) Accordingly, if the judgment is void upon its face because want of jurisdiction is apparent therefrom, it as well as any sale or proceeding thereunder, may be impeached not only directly but also collaterally. (Wilkinson v. Schoonmaker, 77 Tex. 615 — 14 S. W. Rep. 223; Hardy v. Beaty, 84 Tex. 562 — 19 S. W. Rep. 778; Adams v. Cowles, 95 Mo. 501 — 8 S. W. Rep. 711; Horton v. Howard. 79 Mich. (542 — 44 N. W. Rep. 1112; Halm v. Kelly, 34 Cal. 391 — 94 Am. Dec. 742.) Administration on Estates of Living Persons. § 150. Jurisdiction being indispensable to a valid judicial proceeding, if the steps to invoke the jurisdiction are radi- cally defective, subsequent proceedings, though regular, are nevertheless void because of such radical infirmity, It is 144 VOID JUDICIAL AND EXECUTION SALES. thus that an administrator's sale of land of a living owner is nugatory, notwithstanding the proceedings to obtain the order of sale and all subsequent steps were regular, tiie death of the owner being a necessary fact without which the court can not acquire jurisdiction to act. A similar result would follow if the grant of administration was void for other reasons. It is held that in cases of administration upon the estates of deceased persons the jurisdiction depends not cnly upon the allegation but also upon the actual fact of the death of the alleged decedent. The order appointing an administrator is not conclusive upon collateral inquiry in respect to the death of the alleged decedent. (Scott v. McNeal, 154 U. S. 34 — 14 Sup. Ct. Rep. 1108; Springer v. Shavender, 118 N. C. 33 — 23 S. E. Rep. 976; Melia v. Simmons, 45 Wis. 334 — 30 Am. Rep. 746; Thomas v. People. 107 111. 517 — 47 Am. Rep. 458; Johnson v. Beasley, 65 Mo. 250 — 27 Am. Rep. 276: Morgan v. Bodge, 44 N. H. 255 — 82 Am. Dec. 213; Andrews v. Avery. 14 Gratt. 229 — 73 Am. Dec. 355; DArusement v. Jones, 4 Lea, 251 — 40 Am. Rep. 12; Duncan v. Stewart, 25 Ala. 408 — 60 Am. Dec. 527: Withers V. Patterson, 27 Tex. 491 — 86 Am. Dec. 643.) If the legal heirs of a person, under a misapprehension of the true facts, admit the averment of the death of their an- cestor, and submit to a decree of sale of his lands, notwith- standing such admission they will be permitted to avoid the title, seemingly acquired through a probate sale, in a col- lateral assault because of the fact that such ancestor was in fact living. If the owner was not dead the court could not be invested with jurisdiction over his estate by consent of his heirs or by any other means whatever, for his death is an essential jurisdictional fact. To stipulate that he was dead when in fact he was not, or for the court to find that he is dead when actually living, and appropriate his property by administering thereon, would be in violation of the consti- tutional guaranty of due process of law. (Springer v. Shavender, 116 K C. 12 — 21 S. E. Rep. 397; Springer v. Shavender, US X. C. 33 — 23 S. E. Rep. 976.) Judicial Authority Can not be Delegated. § 151. Judicial authority is not susceptible of being dele- gated to another so as to clothe him with power to act in a judicial capacity. Accordingly, where a petition was pre- EFFECT OF WANT OF JURISDICTION. 145 sented to the clerk of a court of probate praying for the ap- pointment of an administrator, and the clerk used blank letters previously signed by the judge of probate, filling up the same and attaching the seal of the court thereto, the judge never having had knowledge of nor took any action upon such letters, the acts of the clerk were not judicial, and the apparent appointment was held to be absolutely void, because the result of a usurpation of power. (Roderigas v. Bank, 76 N. Y. 316-32 Am. Rep. 309; Young v. Rathbone, 16 X. J. Eq. 224-84 Am. Dec. 151.) Face of Record showing a Want of Jurisdiction. § 152. The face of the record showing affirmatively that the court was without jurisdiction, the judgment and subse- quent proceedings founded thereon are void upon a collateral assault upon them. Thus where a personal judgment for money was rendered upon constructive service of process onlv in a case not authorized by law, it is in effect a judg- ment without notice, and manifestly nugatory, upon the very elementary principles upon which our system of jurispru- dence is founded. (Mover v. Bucks, 2 Ind. Ap P . 571-28 N. E. Rep. 992.) And so a sale under execution emanating from a judgment for money rendered upon constructive service of summons by publication, or upon the service of summons personally upon defendant outside of the state, the record not disclosing the attachment of property, is void for want of jurisdiction and may be overthrown collaterally. And where there was prop- erty attached, the jurisdiction is limited to such property, and a money judgment for a sum in excess of the value of the same is void. (Griffith v. Harvester Co., 92 Iowa, 634 - 61 N. W. Rep. 243 ; Real Es- tate Co. v. Hendrix, 28 Ore. 485 - 42 Pac. Rep. 514; Hardy v. Beaty, 84 Tex 562-19 S. W. Rep. 778; Ranier v. Hurlbut, 81 Wis. 24- 50 J*. W. Rep. 783; Freeman v. Alderson, 119 U. S. 185-7 Sup. Ct. Rep 165; Foote v. Sewall, 81 Tex. 659-17 S. W. Rep. 373; Smith v. Griffin, 59 Iowa 409 — 13 N. W. Rep. 423; Brown v. Campbell, 100 Cal. 63d — 35 Pac Rep- 433; Blanc v. Mining Co.. 95 Cal. 524-30 Pac. Rep. 705; Anderson v. Goff, 72 Cal. 65-13 Pac. Rep. 73; Pennoyer v. Neff, 95 U. S. 714.) 10 146 VOID JUDICIAL AXD EXECUTION SALES. Only Fart of Defendants Summoned. § 153. Jurisdiction being therefore a requirement of para- mount importance to a valid and binding judgment, if only a part of the tenants in common in a suit in partition of real estate are brought in by service of process, either actual or constructive, the judgment and sale are void as against such as were not made parties nor served with process, whether they be adults or minors, (Terrell v. Weymouth, 32 Fla. 255 — 13 So. Rep. 429: Jones v. Napier, 93 Ga. 582 — 20 S. E. Rep. 41; McDermott v. Thompson. 29 Fla. 299 — 10 So. Rep. 584; Childs v. Hayman, 72 Ga. 791.) though the order of sale and sale as to the parties served are valid pursuant to the weight of authority; (Swift v. Yanaway, 153 111. 197 — 38 N. E. Rep 589; Stark v. Carroll, 66 Tex. 393 — 1 S. W. Rep. 1S8; Botsford v. O'Connor, 57 111. 72; Har- ris v. Lester, 80 111. 307.) diametrically opposed to this rule is the contention that a de- cree void as to one for want of jurisdiction is void as to all. (Martin v. Williams, 42 Miss. 210 — 97 Am. Dec. 456; Hamilton, v. Lockhart, 41 Miss. 460.) However, this doctrine has been modified in Mississippi so as to apply to probate proceedings only, and with this ex- ception the general rule in chancery practice is followed. (Rule v. Broach, 58 Miss. 552; Moody v. McDuif, 5S Miss. 751.) Because Debt Barred by Statute of Limitations. § 154. On principle it is difficult to see why an order directing an administrator to sell lands of an estate to pay a claim barred by the statute of limitations should be consid- ered void, yet there is authority to this effect, wherein con- tention is based upon the proposition that the court had no jurisdiction to grant the license because the estate was not bound by a debt barred by the statute of limitations. (Smith v. Wildman, 178 Pa. St. 245 — 35 Atl. Rep. 1047; Canipau v. Gillett, 1 Mich. 416 — 53 Am. Dec. 73; Heath v. Wells, 5 Pick. 139 — 16 Am. Dec. 383; Estate of Godfrey, 4 Mich. 314; Thayer v. Winchester, 133 Mass. 447; Pry's Appeal, 8 Watts, 253; Tarbell v. Parker, 106 Mass. 347; Hoffman v. Baird, 32 Mich. 218; Thompson v. Brown, 16 Mass. 172; Brindley's Appeal, 69 Pa. St, 295.) SALES IN PKI : LANDS OF A DECEDENT. 147 But in Missouri, Texas, Florida, New Hampshire and sev- eral other states a contrary rule obtains, more consonant with reason and principle. (Barnes v. Scott, 29 Fla. 285 — 11 So. Rep. 48; Hall v. Woodman, 49 N. H. 295; Deans v. Wilcox, 25 Fla. 980 — 7 So. Rep. 163: Postlewaite v. Ghiselin, 97 Mo. 420 — 10 S. W. Rep. 482; Giddings v. Steele, 28 Tex. 733 — 91 Am. Dec. 336.) NATUKE OF SALES IN PROBATE OF LANDS OF A DECEDENT. Fundamental Fact is Death of Owner. § 155. The elementary and fundamental fact upon which the jurisdiction in probate proceedings in administration upon the estates of decedents rests is the actual death of the owner of the estate over which such administration is sought to be obtained. Manifestly, the administration of a living man's estate is a legal anomaly wholly incompatible with sense or reason. Consequently the fact of death of the owner is not merely a question of proof or judicial determination in the ordinary acceptance of those terms, but it is the juris- dictional fact which must be true, and which, if untrue, though found by the court to be true, is sufficient to make the whole proceeding void, the finding of the court to the con- trary notwithstanding. The fact of death is then really the very subject-matter of jurisdiction, and its non-existence is a fatal infirmity. (Springer v. Shavender, 118 N. C. 33 — 23 S. E. Rep. 976; Scott v. McNeal, 154 U. S. 34 — 14 Sup. Ct. Rep. 1108; Melia v. Simmons, 45 Wis. 334 — 30 Am. Eep. 746; Devlin v. Commonwealth, 101 Pa. St. 273 — 47 Am. Rep. 710; Johnson v. Beasley, 65 Mo. 250 — 27 Am. Rep. 226.) Proceedings in rem. § 156. Two views, the one diametrically opposite to the other, are advanced in regard to the nature of proceedings by an administrator in selling the lands of a decedent. Upon the one hand such proceedings are considered to be in rem, and a failure to give the notice of the application for the order of sale or the bond is but an irregularity which does not render the proceedings void upon a collateral assault, because jurisdiction has already attached by virtue of the grant of administration and the filing of the petition em- 14S VOID JUDICIAL AND EXECUTION SALES. bodying the statutory grounds authorizing a sale and praying- for the sale of specific lands, the power of the court to order the sale thereof being thereupon absolute. The validity of the order of sale in so far as a collateral inquiry is concerned can therefore never be dependent upon the giving of notice of the application for such order of sale to interested parties. The principle that sales of lands of a decedent in probate are proceedings in rem has become a settled rule of property in several of the states including Alabama, Arkansas, Texas, Washington, Louisiana and Nebraska. (Cobb v. Garner, 105 Ala. 647 — 17 So. Eep. 47; Kent V. Mansel, 101 Ala. 334 — 14 So. Eep. 489; Reese v. Noland, 99 Ala. 203 — 13 So. Pep. 677; Goodwin v. Sims, 86 Ala. 102 — 5 So. Rep. 587; Lyons v. Hamner, S4 Ala. 197 — 4 So. Rep. 26; Cantelou v. Whitley, 85 Ala. 247 — 4 So. Rep. 610; Satcher v. Satcher, 41 Ala. 26 — 91 Am. Dec. 40S; Apel v. Kelsey, 52 Ark. 341 — 12 S. W. Rep. 703 ; Apel v. Kelsey, 47 Ark. 413 — 2 S. W. Rep. 102; Lyne v. Sanford, 82 Tex. 58 — 19 S. W. Rep. 847; Lynch v. Baxter, 4 Tex. 431 — 51 Am. Dec. 735; Heath v. Laync, 62 Tex. 6S6 ; Furth v. Mortgage Co., 13 Wash. 73 — 42 Pae. Rep. 523 ; Hyde V. Heller, 10 Wash. 586 — 39 Pac. Rep. 249; Ackerson v. Orchard, 7 Wash. 377 — 34 Pac. Rep. 1106; Ryan v. Ferguson, 3 Wash. 356—28 Pac. Rep. 910; Oriol v. Herndon, 38 La. Ann. 759; Heirs of Herriman, 31 La. Ann. 276; Schroeder v. Wilcox, 39 Neb. 136 — 57 N. W. Rep. 1031; McClay v. Foxworthy, 18 Neb. 295 — 25 N. W. Rep. 86.) In Iowa the court in a recent case held that the heir was entitled to notice of the pendency of the petition for the order of sale, but considered its absence in the light of an irregularity merely. (Spurgin v. Bowers, 82 Iowa, 1S7 — 47 N. W. Rep. 1029.) Guardian's Sales Considered both Adversary and in rem. § 157. As in theory of law a guardian represents his ward, and acts for him, the proceedings of sale by a guardian of a ward's lands are not adversary according to the weight of authority. Therefore, if the order of sale is obtained in the absence of all notice, or upon defective or insufficient notice, it is not void, for, being in the nature of a proceeding in n m, no notice to the ward is necessary to the validity of the sale. The petition in due form of law presented by the guardian confers jurisdiction to make the order of sale. rf v Aldrich, 97 Cal. 360-32 Pac. Rep. 324; Meyers v. Mc- Gavock, 39 Neb. 843 — 58. N. W. Rep. 522; Thaw v. Ritchie, 136 U. S. SALES IN FR0BATE OF LAXDS OF A DECEDEXT. 149 519 — 10 Sup. Ct. Rep. 1037; Mohr v. Porter, 51 Wis. 4-7 — S N. W. Rep. 364; Kendrick v. Wheeler, 85 Tex. 247 — 20 S. W. Rep. 44; Mohr v. Manierre, 101 U. S. 417; Gager v. Henry, 5 Sawyer, 237; Smith v. Race, 27 111. 387 — 81 Am. Dec. 235; Gibson v. Roll, 27 111. 88 — 81 Am. Dee. 219; Mason v. Wait, 4 beam. 127; Campbell v. Harmon, 43 111. IS.) That such sales are adversary and not in rem, and there- fore notice is an essential requirement to vest jurisdiction is ' the doctrine contended for elsewhere, though without appar- ent show of reason. (Kennedy v. Gaines, 51 Miss. 625; In re Estate of Hunter, 84 Iowa, 3SS— 51 X. W. Rep. 20.) Are Adversary Proceedings. § 158. On the other hand it is contended in perhaps a majority of the states that an administrator's proceeding to sell lands of the estate of a decedent is not in the nature of a proceeding in rein, and that the failure to give the notice required by the statute of the presentation of the petition for the order of sale is a fatal defect rendering the sale made under the order void. In these states the proceedings are considered adversary to the heirs and devisees, and unless the parties interested in the estate are properly brought before the court according to the manner directed in the statute, there is such a want of jurisdiction as will wholly vitiate the sale. This is the doctrine promulgated by the courts in at least eleven states, among them being Kansas, Illinois, Wis- consin, South Carolina, Oregon, Mississippi, Xew Hamp- shire, Tennessee, ISTew York, ]STorth Carolina and Indiana. (Railway Co. v. Cook, 43 Kan. S3 — 22 Pac. Rep. 988; Fell v. Young. 63 111. 106; Clark v. Thompson. 47 111. 25 — 95 Am. Dec. 457 ; ' Botsford V. O'Connor, 57 111. 72; Gibbs v. Shaw. 17 Wis. 197 — 84 Am. Dec. 7::7; O'Dell v. Rogers, 44 Wis. 136; Blodgett v. Hitt, 29 Wis. 169; Johnson v. Cobb, 20 S. C. 372 — 7 S. E. Rep. 601; Fisk v. Kellogg, 3 Ore. 503; Root v. McFerrin, 37 Miss. 17 — 75 Am. Dec. 49; Joslin v. Caughlin, 26 Miss. 134; French v. Hoyt. 6 X. II. 370 — 25 Am. Dec. 464; Merrill v. Harris, 26 N. H. 142 ; Frazier v. Pankey, 1 Swan, 74 ; Jenkins v. Young. 35 Hun, 569; Corwin v. Merritt, 3 Barb. 341; Perry v. Adams. 9S X. C. 167 — 3 S. E. Rep. 729; Harrison v. Harrison, 106 N. C. 282 — 11 S. E. Rep. 356; Hawkins v. Hawkins, 28 Ind. 66; Doe v. Bowen, 6 Ind. 197; Doe v. Anderson, 5 Ind. 33.) The death of the decedent furnishes the basis for the juris- diction of the court over his estate. Under the statutes of a 150 VOID JUDICIAL AND EXECUTION SALES. majority of the states the real estate descends to the heirs subject however to a trust created by statue for the pay- ment of the lawful debts duly presented, which are a charge upon the estate, the heir taking by inheritance after the charges are paid. This is the philosophy upon which the probate court acquires jurisdiction through its functionary to sell or sequestrate the lands lying within its territorial jurisdiction. The res is thus fully under the control of the court, just as in case of a specific lien, and the proceedings are considered in the nature of proceedings in rem, as we have seen, in several of the states. Even in those states where notice of the pendency of the petition for an order of sale is an indispensable requirement to confer jurisdiction to order the sale, the proceedings are still somewdiat in the nature of a sale in rem, notwithstanding they are regarded as adversary. PKOBATE SALES WHEN THERE ARE XO DEBTS. Adjudication of the Court is Conclusive. § 159. According to the decided preponderance of au- thority a sale of land by an administrator to pay debts of the decedent when in fact there were no debts, is not void for that reason alone. The principle upon which these cases are founded is, that when a proper petition to sell has been pre- sented and properly brought on for hearing, the adjudica- tion and determination of the court upon it that there are debts imports verity. The court being invested with juris- diction of the estate, the sale is not open to be attacked col- laterally for irregularities, omissions or errors in the proceed- ings culminating in the order of sale. Consequently, a pur- chaser at a probate sale has only to look to the jurisdiction of the court granting the order of sale, which order is to be re- ceived as conclusive, is unimpeachable from within though impeachable from without. (Murphy v. De France. 105 Mo. 53 — 15 S. W. Rep. 949; Curran v. Kuby, 37 Minn. 330 — 33 N. W. Rep. 907; Succession of Thez, 44 La. Ann. 47 — 10 So. Rep. 412; Deyton v. Bell, 81 Ga. 370 — S S. E. Rep. 620; Merrill v. Earris, 20 X. H. 142 — 57 Am. Dee. 359; McNally v. Haynes. 59 Tex. 583; Bowen v. Bond. 80 111. 351; McCauley v. Harvey, 49 Cal. 497; Stow v. Kimball, 28 111. 93.) EFFECT OF FAILURE TO APPOINT GUAEDIAX AD LITEM. 151 In a recent case in Alabama the court in this regard said : « In the absence of fraud or collusion, the judicial determi- nation by the probate court, that there were debts against the estate and that the sale of the land was necessary, is con- clusive upon all who were parties to that proceeding, and conclusive upon the chancery or other court, in any collateral suit or proceeding, so far as the rights of bona fide pur- chasers of the land at the sale had in pursuance of the de- cree are concerned ". (Cobb v. Garner, 105 Ala. 407-17 So. Rep. 47.) Finding of Probate Court only Prima Facie. § 160. In Connecticut it seems to be the rule that the find- ing of the probate court upon an application for the sale of lands of an estate that there are debts is but prima fane evidence of the fact that there are debts. If one claims lands by virtue of a probate sale to pay debts of the decedent, he must establish the fact that such debts actually existed, when his title is called in question upon allegations chat there were no debts. While the finding that there were debts is prima facie evidence it is nevertheless open to contra- diction. (Shelton v. Hadlock, 62 Conn. 143-25 Atl. Rep. 433; Sears v. Terry, 26 Conn. 273.) EFFECT OF FAILURE TO APPOINT GUARDIAN AD LITEM. Generally Considered but an Irregularity. § 161. The authorities are conflicting upon the question as to what the consequences are of a failure to appoint a o-uardian ad litem for an infant when his estate is involve.]. Upon the one hand it is held by the weight of authority that such omission is not of sufficient gravity to nullify the judg- ment or other proceedings thereunder, it not being a juris- dictional defect. Jurisdiction depending upon the filing of a proper petition where this is the rule, the proceedings not being adversarv to the ward. (Millard v. Marmon, 110 HI- 040-7 N. E. Re P . 408: McBride v. 6; 152 VOID JUDICIAL AND EXECUTION SALES. Orman v. Bowles. 18 Colo. 463 — 33 Pac. Rep. 109 ; Peak v. Shasted, 21 111. 137 — 74 Am. Dec. S3; Porter v. Robinson, 3 A. K. Marsh. 253-13 Am. Dec. 153; Burgess v. Kirby, 94 N". C. 575; Gage v. Schroder, 73 111. 44; Morgan v. Burnett. 18 Ohio, 535; Blake v. Douglass, 27 Ind. 416; McElmore v. Railway Co., 58 Miss. 514.) In Alabama it is held that the probate sale of a ward's property made by that court upon a proper application and sufficient showing by the general guardian is a proceeding in rem in which the appointment of a guardian ad litem to represent the ward is not only no requirement but wholly unauthorized by law. (Daughtry v. Thweatt. 105 Ala, 615 — 16 So. Rep. 920.) So the neglect to make such an appointment in a suit in equity in the foreclosure of a mortgage upon real estate in which an infant is interested, (Smith v. Bradley, 6 S. & M. 4S5.) or after the service of citation in proceedings in partition, the failure to appoint a guardian ad litem is not such a radi- cal defect in the proceedings as will expose them to successful collateral impeachment. (Austin v. Seminary, 8 Met. 196 — 41 Am. Dec. 497; Montgomery v. Carlton, 56 Tex. 361.) When the proceedings are in equity and service is had upon the ward, the appearance and answer of the general guardian in the absence of a guardian ad litem is binding, though irregular, upon the principle that the minor thus answered for is the ward of the court, and whenever the fact of his incompetency by virtue of his minority is brought to the attention of the court, it will protect his interests and he is concluded by its proceedings. (Simmons v. Bayard, 30 Fed. Rep. 632.) A judgment pronounced against an infant who has been duly served, upon appearance and answer by his general guardian, instead of a guardian ad litem, was held not void by the federal supreme court. (Colt v. Colt, 111 U. S. 566 — 4 Sup. Ct, Rep. 553.) And the appearance of the general guardian is held suffi- cient in California to confer jurisdiction over the person of the SALE OF LANDS LOCATED IN ANOTHER COUNTY. 153 minor defendant, and it is immaterial that no guardian ad litem was appointed for him. (Lumber Co. v. Phillips, 94 Cal. 54 — 29 Pac. Hep. 328 j Smith v. Mc- Donald, 42 Cal. 484.) After service 01 notice upon the minor the failure to appoint a guardian ad litem can be regarded but as an irregu- larity which does not go to the jurisdiction, and therefore upon principle, is insufficient to expose the proceedings to collateral impeachment. Is a Fatal Infirmity. § 162. Decisions are not wanting announcing the doctrine that the omission to appoint a guardian ad litem for an in- fant in an administrator's application to sell lands in which the minor is interested makes the sale utterly void as to the infant. Notice to the infant and the appointment of a guar- dian ad litem being jurisdictional requirements, the proceed- ings being adversary to the ward, and pursuant to a cardinal principle in the administration of justice the property of no one can be lawfully appropriated without an opportunity of being heard, which contemplates that he either must be served with process, or the publication of notice, appointment of a guardian or some other appropriate proceeding which brings him into court, and that an infant is no exception to this rule. (Roche v. Waters, 72 Md. 264 — 18 Atl. Rep. 535: Bloom v. Burdiek, 1 Hill, 130 — 37 Am. Dec. 299; Messenger v. Kintnor. 4 Binn. 97; Smith v. Rice, 11 Mass. 507; Proctor v. Newhall, 17 Mass. 91.) In Alabama it is held in a recent case that the decree settling an estate in probate is void as to an infant distributee for whom no guardian ad litem was appointed. (Eatman v. Eatman, 82 Ala. 223 — 2 So. Rep. 729.) SALE OF LANDS LOCATED IN ANOTHER COUNTY. Statutory Requirements as to Institution of Suit. 8 163. Under a statute providing that all actions for the sale of real property under foreclosure of mortgage or other liens must be instituted in the county in which the land or 154 VOID JUDICIAL AND EXECUTION SALES. some part thereof is situated, a foreclosure suit involving lands located in different counties but in the same state is properly brought in any one of the counties, notwithstanding the fact that all the parties defendant are not residents of such county. (Goldtree v. McAllister, 86 Cal. 93 — 24 Pac. Rep. 801; West v. Walker. 77 Wis. 557 — 46 N. W. Rep. 819: Perkins v. McCarley, 97 Ky. 43 — 29 S. W. Rep. 867; Hendrix v. Nesbitt, 96 Ky. 652 — 29 S. W. Rep. 627.) Hence an action involving the title to land properly in- stituted in the county wherein the premises are located, but subsequently and before the rendition of judgment, the par- ticular portion of the original county wherein such land is situated is annexed to and made a part of another or a new county, the court in which the action was commenced does not lose jurisdiction to proceed to final judgment and sale of the property. (Loan & Trust Co. v. Kauffman, 108 Cal. 214 — 41 Pae. Rep. 467.) Objection to Suit Brought in Wrong County May be Waived. § 164. While it is a general rule and provision of statute in almost if not every state that actions for the sale of, or involving the title of real estate, whether under mortgage or otherwise, should be commenced in the county wherein the land or some part of it is located, (Fritts v. Camp, 94 Cal. 393 — 29 Pac. Rep. 867: Cobbey v. Wright, 29 Neb. 274 — 45 N. W. Rep. 460; Urton v. Woolsey, S7 Cal. 38 — 25 Pac. Rep. 154.) this however is one of those jurisdictional requirements that may be waived by express consent of the parties to the action, (Kipp v. Cook. 46 Minn. 535 — 49 N. W. Rep. 257; Walker v. Stroud, 6 S. W. Rep. 202; Watts v. White, 13 Cal. 321.) and generally a failure to plead in abatement, the objection to the jurisdiction is waived, the question being one merely as to the place of trial, and is a personal privilege that may accordingly be waived expressly, or by implication on account of failure to urge objections upon such grounds. (Walker v. Stroud, 6 S. W. Rep. 202; Houck v. Lasher, 17 How. Pr. 520.) DEATH OR DISABILITY OF THE FARTIES, OR EITHER OF THEM. 155 Probate Sale of Lands in Another County. § 1G5. The authorities are not harmonious as to the valid- ity of a sale of land located in one county upon an order from the probate court of another county. The disagreement is directly due to peculiar provisions of statute touching sales of this kind. Thus in Alabama in a late case it was decided that the probate court having jurisdiction of the guardian- ship, has jurisdiction to order the sale of the lands of the ward located in any one of the counties of the state. And a similar ruling would obtain in the case of the sale of lands of a decedent by an administrator. (Matthews v. Matthews, 104 Ala. 303 — 16 So. Rep. 91.) By statute the orphans' court is authorized to order the sale of lands of a decedent located in another county, but to do so an authenticated copy of the order of sale must be presented by the fiduciary to the orphans' court of the county in which the land lies, which latter court must make the order to sell and must receive the report of sale. A sale made under the order of the former court is a nullity. (Hopkins v. Meir, 19 Atl. Rep. 264.) DEATH OE DISABILITY OF THE PARTIES, OR EITHER OE THEM. Death of Sole Plaintiff or Sole Defendant. § 166. Notwithstanding the fact that the defendant has been properly brought into court by the service of regular process or is in court by voluntary appearance, yet the juris- diction over his person may thereafter still fail by reason of the death of either party before the rendition of final judg- ment. Hence, in all proceedings save such as are strictly in rem, if the sole plaintiff or sole defendant dies during the pendency of the action, the judgment or decree render after such death against either, and the death of the party is suggested by the record, is void noon the plainest of prin- ciples, for a judgment against a dead person, if efficacy is accorded to it, is at most a judgment againsl his heirs, de- visees or representatives, and tin--.' are neither parties nor privies to the judgment, and manifestly can not be bound thereby. 15G TOID JUDICIAL AND EXECUTION SALES. Not Suggested by Record makes Judgment Voidable only. § 167. If the death of either of the parties to a legal con- troversy does not appear affirmatively from the record, the judgment is voidable merely, and can not be successfully im- peached in a collateral proceeding, according to the great weight of authority, and upon principle. (Elliott v. Bastian, 11 Utah, 452 — 40 Pac. Rep. 713; Knott v. Taylor, 99 N. C. 511 — 6 S. E. Rep. 788; Mitchell v. Schoonover, 16 Ore. 216 — 17 Pac. Rep. 867; Jennings v. Simpson, 12 Neb. 565 — 11 N. W. Rep. S80; New Orleans v. Gaines. 138 U. S. 595 — 11 Sup. ft. Rep. 428; Mc- Cormick v. Paddock, 20 Neb. 486 — 30 N. W. Rep. 602 ; Mosley v. Manu- facturing Co., 4 Okla. 492 — 46 Pac. Rep. 508; Berkey v. Judd, 27 Minn. 475 — 8 N. W. Rep. 3S3; Clallin v. Dunne, 129 111. 241 — 21 N. E. Rep. 834; Coleman v. McAnulty, 16 Mo. 177 — 57 Am. Dec. 229: Giddings v. Steele, 2S Tex. 732 — 91 Am. Dec. 336; Yaple V. Titus, 41 Pa. St. 195 — SO Am. Dec. 604 ; Griswold v. Stewart, 4 Cow. 457 ; Stocking v. Hanson, 22 Minn. 545; Tapley v. Martin, 116 Mass. 275; Reid V. Holmes, 127 Mass. 326; West v. Jordan, 62 Minn. 484; Holt v. Thacher. 52 Vt. 592.) One of Several Defendants Dies before Judgment. § 168. Upon the same principle, where there are several defendants and one of them dies pending the litigation and before judgment, his death not appearing by an inspection of the record, a judgment rendered against all defendants including the decedent, is not void as to such decedent, but merely voidable. Collateral impeachment is unavailable, though the judgment may be vacated upon motion suggesting the death of defendant. (Boor v. Lowrey, 103 Ind. 468 — 3 N. E. Rep. 151; King v. Burdett, 28 W. Va. 601 — 57 Am. Rep. 687; Burke v. Stokley, 65 N. C. 569.) Death of Sole Defendant Renders Judgment Void. ,' 1 69. The rule at common law was that the death of the sole plaintiff or defendant abated the action. Accordingly, is seems to be the firmly settled doctrine in several states that a judgment rendered against a person who was dead at the time is unqualifiedly void. (Carter v. Carriger, 3 Yerg. 411—24 Am. Dec. 585; Meyer v. Hearst, 75 Ala. 390; McCreary v. Everling, 11 Cal. 284: Tarleton v. Cox. 15 Miss. i ; Morrison v. Deadrick, 10 Humph. 342: Edwards v. Whited. 29 La. Ann. 647; Lee v. Gardiner, 26 Miss. 521; Norton v. Jamison, 23 La. Ann. L02; Lynch v. Tunnell, 4 Hair. 284; McCloskey v. Wingfield, 29 La. Ann. 141.) DEATH OR DISABILITY OF THE PARTIES, OR EITHER OF THEM. 157 Death of Defendant Pending Publication of Notice. § 170. In proceedings quasi in rem, such as the fore- closure of mortgage and other liens, the court acquires no jurisdiction to pronounce judgment if the defendant was dead before the requisite notice provided by statute was given, and the decree is void and can be collaterally im- peached. (Greenstreet v. Thornton. 60 Ark. 3C9 — 30 S. W. Rep. 347.) For, if the defendant named in the proceedings is dead the published summons against him has no validity whatever, and w T ill not support the judgment in any event. (Crosley v. Hutton, 9S Mo. 196 — 11 S. W. Rep. 613; Williamson v. Hudson, 93 Mo. 524 — 6 S. W. Rep. 261; Clanlin v. Dunne, 129 111. 241 — 21 N. E. Rep. 834.) Effect of the Death of Sole Plaintiff. § 171. Pursuant to the rule announced in some adjudica- tions judgments in favor of a plaintiff rendered by a court of general jurisdiction having jurisdiction of the subject-mat- ter of the action and having properly acquired jurisdiction of the parties, and pronounced subsequent to plaintiff's death, are not considered mere nullities, but are held to be voidable at most and binding until vacated or reversed. (Hayes v. Shaw, 20 Minn. 405; Webber v. Stanton, 1 Mich. N. P. 97.) Diametrically opposite are the declarations of other courts which hold such judgments to be unconditionally void and subject to collateral impeachment wherever and whenever called in question. The rule in these declarations is the same whether it is a sole plaintiff or a co-plaintiff, it is void in either case. (Young v. Pickens, 45 Miss. 553; Moore v. Easley, 18 Ala. 619; Tarle- ton V. Cox, 45 Miss. 430: Wcis v. Aaron, 75 Miss. 13S — 21 So. Ry. 763; Dyson v. Baker, 54 Miss. 28; Hall v. Williams, 6 Pick. 246. Jurisdiction of Minors and Incompetents. § 172. As a general rule where process has been regularly served on an infant or incompetent, the failure of the guar- dian ad litem, curator, prochein ami or committee to answer, or the failure to make such appointment altogether for an infant or incompetent having no regular guardian, will not 158 YOID JUDICIAL AXD EXECUTION SALES. render a judgment by default a nullity, although it is mani- fest irregularity sufficient to avoid the judgment in a proper proceeding. (Childs v. Lanterman, 103 Cal. 3S7 — 37 Pac. Rep. 3S2; Hoover v. Kinsey Plow Co., 55 Iowa, C68 — S N. W. Rep. 658; Eisenmenger v. Murphy, 42 Minn. 84 — 43 N. W. Rep. 784; Drake v. Henshaw, 47 Iowa, 291; Randalls v. Wilson, 24 Mo. 76; Allen v. Savior, 14 Iowa, 435; Barber v. Graves, 18 Vt. 290; Simmons v. McKay, 5 Bush. 25.) But where the record in a suit in mortgage for foreclosure affirmatively discloses the fact that the infant heirs of the mortgagor were not made parties by personal service and no guardian ad litem was appointed and no answer was filed or appearance made, they are not bound by the decree and may sue to recover the land from the purchaser. (Bailey v. Bailey, 41 S. C. 337 — 19 S. E. Rep. 669.) A judgment against an infant rendered without actual service of process but who was represented by a guardian ad litem appointed by the court for him is not void and hence is not open to collateral impeachment. (Alston v. Emmerson, 83 Tex. 231 — 18 S. W. Rep. 566.) ISTor is a judgment against a minor who has been served with process and who was represented in the action by at- torney open to collateral impeachment because no guardian ad litem was appointed. (Cohee v. Baer, 134 Ind. 375 — 32 N. E. Rep. 920.) Decree Vacated After Sale and its Effects. § 173. Where judgments rendered against a deceased party and the death is not suggested by the record are considered voidable merely, it is evident that a sale thereunder to a bona fide purchaser without notice, the sale being completely con- summated before the judgment is sought to be vacated, will transfer the title, as a motion to vacate, or an appeal for error, would not relieve against a sale under execution upon a judgment which is erroneous only and not void. It is different however, in all those cases in which land or an interest in land is directly decreed from one person to another, or where one party is decreed to convey the land or interest therein to the other, and the deed of conveyance, as for instance in the case of incompetents, is made by a com- DEATH OR DISABILITY OF THE PARTIES, OR EITHER OF THEM. 150 missioner, a reversal or vacation of the decree will divest the estate acquired by it, and the same reverts again to the former owner. According to the weight of authority the suit in such case is considered pending so long as the right to open the decree exists, and hence the purchaser assumes the risk consequent upon a vacation or reversal of the decree. This although is not the case with a decree of sale, as this stands on another footing, and an incompetent's rights after tin- vacation or reversal of the decree for error, after a sale has been made, are similar to those of any other party under like circumstances. (McMullen v. Reeves, 102 N. C. 550 — 9 S. E. Rep. 449; Wood v. Watson, 107 N. ('. 52 — 12 S. E. Eep. 49: Thomas v. Hunsacker, 108 N. C. 720 — 13 S. E. Rep. 221; Hull v. Hull, 20 W. Va. I.) Actions against Married Women. § 174. In a great majority of the states the common law disabilities of married women have been removed by statute, but even in those states where this has not been done, per- sonal judgments may still be rendered against both husband and wife, as for instance upon a tort committed by the wife, or on a contract made before marriage. Decisions are not wanting, however, holding a judgment against a married woman absolutely void when it is rendered upon pleadings which do not embrace a state of facts authorizing it. I White v. Lumber Co., 29 W. Va. 385 — 1 S. E. Rep. 572; Breckwoldt V Morris. 149 Pa, St. 291 — 24 Atl. Rep. 300; Gould v. McFall. Ill Pa. St. GO — 2 Atl. Rep. 72; Dyke v. Wells, 103 Pa. St. 49: Higgins v. Peltzcr, 49 Mo. 152; Alexander v. Lydick. 80 Mo. 341; Spencer v. Par- sons, S9 Ky. 577 — 13 S. W. Rep. 72: Mallett v. Parham. 52 Miss. 921; Wells v. Norton. 28 La. Ann. 300; Magruder v. Buck, 56 Miss. "14: McKimiey v. Brown. 130 Pa. St. 365 — 18 Atl. Rep. 642: Will v. Sim- mons, 66 Mo. 017; Caldwell v. Walters. 18 Pa. St. 79 — 55 Am. Dee. 592.) According to the vast weight of authority a judgment against a married woman is not void when founded upon a contract which she was incompetent to make, or erroneous for any other reason. Though erroneous for any such reason it is nevertheless binding upon her until vacated by appeal or other appropriate proceeding. "While the contrad sued on may be void, still this will not impair the conclusiveness of the judgment rendered in the action to which she was a 100 VOID JUDICIAL AND EXECUTION SALES. party so long as it stands unreversed. This rule in. some of the cases is perhaps due to the provisions of statute permit- ting a married woman to sue and be sued. (McCurdy v. Baughman, 43 Ohio St. 7S — 1 N. E. Rep. 93; Wilson r v. Coolidge, 42 Mich. 112 — 3 N. W. Rep. 285; MeCullough v. Dashiell, 85 Va. 37 — 6 S. E. Eep. 610; Lieb v. Liechtenstein, 121 Ind. 4S3 — 23 X. E. Rep. 284; Vick v. Pope, 81 N. C. 22; Howard v. North, 5 Tex. 290 — 51 Am. Dec. 769; Glover v. Moore, 60 Ga. 189; Chatterton v. Young, 2 Tenn. Ch. 768; Guthrie v. Howard, 32 Iowa, 54; Wright v. Wright, 97 Ind. 444; Nicholson v. Cox, 83 N. C. 44 — 35 Am. Rep. 556; Goodnow v. Hill, 125 Mass. 587; Davis v. Bank, 5 Neb. 242 --25 Am. Rep. 4S4; Wilson v. Herbert, 41 N. J. L. 456 — 32 Am. Rep. 243; Cashman v. Henry, 75 N. Y. 103 — 31 Am. Rep. 437; Farris v. Hayes, 9 Ore. 81.) INSTANCES OF WANT OF JURISDICTION. Title to Land Located in Another State. § 175. It is a firmly established rule in the jurisprudence of this country that the courts of one state are without juris- diction over the title to realty situated in another state, and the provision in the federal constitution demanding that full faith and credit be given in each state to the records and judicial proceedings of other states, is subordinated to this rule, applying only to such records and proceedings of the court wherein they have jurisdiction. In suits involving the title of lands in another state the subject-matter of the action is beyond the jurisdiction of the court and hence all its acts relative to the land are coram non judice and void. (Lindley v. O'Reilly, 50 N. J. L. 636 — 15 Atl. Rep. 379; Bullock v. Bullock, 51 N. J. Eq. 444 — 27 Atl. Rep. 435; Nelson v. Potter, 50 N. J. L. 324—15 Atl. Rep. 375; Wilkinson v. Leland, 2 Pet. 627.) Jurisdiction over the subject-matter being indispensable to the rendition of a valid judgment, and hence necessary to a legal sale thereunder, if the probate court orders the sale of binds of the decedent located beyond the territorial limits of the state, the order and sale are void, the court being power- less to do any valid act touching the disposition of the prop- erty in the latter state. (Latimer v. Railway Co., 43 Mo. 105 — 97 Am. Dee. 378; Nbwler v. Coit, 1 Ohio, 519 — 13 Am. Dec. 640: Salmond v. Price, 13 Ohio, 368 — 42 Am. Dec. 204; Watkins v. Holman. 16 Pet. 25.) INSTANCES OF WANT OF JURISDICTION. 161 Partition and Mortgage Foreclosure of Land in Another State. § 176. Accordingly, the courts of one state arc without jurisdiction to partition lands located in another state for the reason that the partition can only be decreed by the courts of the state wherein the land is situated. A sale under such a decree must be utterly void, though the court could have acted upon the person if brought within the jurisdiction, and compelled a conveyance or otherwise comply with its decree. (Wimer v. Wimer, 82 Va. 890 — 3 Am. St. Rep. 126; Poindexter v. Burwell. 82 Va. 507.) So the foreclosure in the courts of one state of a mortgage upon lands located in another state is for similar reasons totally devoid of validity, and the purchaser gets no title by his purchase under the decree of foreclosure. (Trust Co. v. Telegraph Co.. 55 Conn. 334 — 11 Atl. Rep. 1S4.) Decree Holding Conveyance in another State Fraudulent. § 177. A decree of a court in Xew York declaring a deed to land in Tennessee fraudulent and void is without juris- diction and itself a nullity, as such a decree would, in effect, be a judgment i)i rem by a court having no jurisdiction of the res involved in the suit. (Carpenter v. Strange. 141 U. S. S7 — 11 Sup. Ct. Rep. 960.) Sale by Administrator of Living Owner's Lands. § 178. Courts of probate have jurisdiction when properlv invoked to grant letters of administration or testamentary on. the estates of deceased persons, but not when the owner of the estate is alive. The death of the owner is a necessarv jurisdictional fact, and should the court grant letters under a misapprehension of the fact, and the supposed decedent is in fact alive, the infirmity is fatal, and a sale by the ad- ministrator is void and may be overthrown in a collateral proceeding. The title is not affected in the least degree by such a pretended sale. (Scott v. McNeal, 154 U. S. 34 — 14 Sup. Ct. Rep. 1108; Springer v. Shavender, 118 N. C. 33 — 23 S. E. Rep. 976.) Other Instances. § 179. In California it is held that where the statute failed to provide concerning the distribution and settlement 11 162 VOID JUDICIAL AXD EXECUTION SALES. of estates of decedents who died prior to its enactment, ad- ministration upon such estates is void because the court has no jurisdiction of the subject-matter and the proceedings in administration are a usurpation of authority and void. (McNeil v. Society. 66 Cal. 105 — 4 Pac. Rep. 1096: Grimes v. N orris, 6 Cal. 621 — 65 Am. Dec. 545 ; Coppinger v. Rice. 3?, Cal. 408 ; Trevis v. Pitcher, 10 Cal. 465; Downer v. Smith. 24 Cal. 114; Severance v. Gerke, 3 Sawyer. 363.) Where the court ordered a defendant to convey land situ- ated in another state but before compliance with the decree the defendant died, whereupon the court appointed a com- missioner to execute the conveyance for him which was accordingly done, the conveyance was held to be void, by the court of the latter state upon the ground that the court of the former state had no power to order one acting in a fiduciary capacity to convey land, the decree being ineffectual unless the owner in person executes the conveyance. (Railway Co. v. Gay. 86 Tex. 571 — 26 S. W. Rep. 590; Morris v. Hand. 70 Tex. 481 — 8 S. W. Rep. 210; Bosby v. Burrow. 52 Tex. 404.) By the statute the orphans' court is authorized to order the sale of lands of a decedent, lying in another county, in which case the statute requires that the administrator present nil authenticated copy of the order of sale to the orphans' court of the county wherein the land is situated, and there obtain an order to sell and report the sale to such latter court. It was held .that a sale made under the original order, of lands located in another county, without any confirmation from the court of that county is a nullity. In the light of prin- ciple I am unable to comprehend how this can be held to be anything more than an irregularity making the sale merely voidable. (Hopkins v. Meir, 19 Atl. Rep. 264.) A proceeding in foreclosure of a special assessment lien upon land, the subject-matter of the action, was so defectively described as to be incapable of identification, the assessment, judgment and confirmation are void, and manifestly the sale a nullity. (People v. Ecrgers, 164 111. 515 — 44 N. E. Rep. 1074; Pickering v. Lomax. 120 111. 2S9 — 11 N. E. Rep. 175; Sandford v. People, 102 111. 374; People v. Railway Co., 96 111. 369.) INSTANCES OF WANT OF JURISDICTION. 1 3 While service obtained in another state in conformity to statutory requirements is sufficient to sustain a decree vacat- ing a conveyance of land, (Wehrman v. Conklin, 155 U. S. 314 — 15 Sup. Ct. Rep. 129.) jet a judgment founded upon a promissory note obtained against a non-resident defendant upon constructive service of process only, is void, and a sale of land thereunder nugatory. (Davis v. Walker. 156 U. S. 680 — 15 Sup. Ct. Rep. 555.) In the former the judgment acts in rem upon the land involved, while in the latter it is effective in personam, and hence void when based upon published notice only. A judgment founded upon a void attachment and with- out jurisdiction having been acquired over the person of the defendant by personal service of process is void. If the attachment had been valid the jurisdiction would. have been limited to the property attached, but that failing there was a total failure of jurisdiction. (Bernhart v. Brown, 118 N. C. 700 — 24 S. E. Rep. 527; Keyser v. Guggenheimer, 21 S. E. Rep. 475.) It is a genera] provision of statute in the various states that a man's estate shall be probated in the county of his residence at the time of his death. If by an inspection of the record of a proceeding in administration upon the estate of a decedent it appears that he was a non-resident it has been held that the whole proceedings must be regarded as a nullity for jurisdictional infirmity. (Moore v. Philbriek, 32 Me. 102 — 52 Am. Dec. 642; Holyoke v. Haskins, 5 Pick. 20 — 16 Am. Dec. 372; Harlan's Estate. 24 Cal. 182 — 85 Am. Dec. 58; Haynes v. Meeks. 10 Cal. 110 — 70 Am. Dec. 703; Raul v. Willis, 69 Tex. 261 — 7 S. W. Rep. 357; Munson v. Newson. 9 Tex. 109; Cutts v. Haskins, 9 Mass. 543; Goodrich v. Pendleton, 4 Johns. Ch. 549; Hearn v. Camp, 18 Tex. 545. ^ So a sale of land by an administrator under the order of the court is unconditionally void where the judgment ap- pointing him administrator is set aside as void upon juris- dictional grounds. (Stewart v. Golden, 98 Ga. 479 — 25 S. E. Rep. 528.) 164 VOID JUDICIAL AND EXECUTION SALES. A judgment rendered on Sunday is not merely erroneous but absolutely void. (Styles v. Harrison, 99 Term. 128 — 41 S. W. Rep. 333: Lampe v. Manning, 38 Miss. 673.) PRINCIPLES INVOLVED IX JURISDICTIONAL INQUIRIES. Presumptions in Favor of Jurisdiction. § 180. The paramount question to be ascertained in the inquiry as to whether or not the court which pronounced the particular judgment under consideration had acquired juris- diction over the person of the defendant against whom it was rendered, is whether it was a court of general or of special and limited jurisdiction. Was it a court of record or an inferior court not of record ? The question is pertinent and of controlling importance, because judgments of general jurisdiction are environed and fortified with the indulgence of certain presumptions not accorded to courts not of record. In ascertaining this question resort must be had to the par- ticular statutes of the commonwealth wherein the tribunal is located. It is a fundamental proposition governing in jurisdictional inquiries that when this question arises in re- gard to the judgment of a domestic court of general jurisdic- tion proceeding according to the course of common law, all presumptions are in favor of its jurisdiction, not only of the subject-matter of the action, but of the person of the defendant as well. The presumption is in favor of the regu- larity of the proceedings of a court of record, and accordingly, when such a court has pronounced and entered judgment, the record disclosing nothing to the contrary, jurisdiction over the defendant will be presumed. (Dry Goods Co. v. Fuller. 5S Ark. 1S1 — 24 S. W. Rep. 108; Kelly v. Kelly, 161 Mass. 111 — 36 N. E. Rep. 837; Hersey V. Walsh. 38 Mum. 521 — 38 N. W. Rep. 613: Hilton v. Bachman, 24 Neb. 490 — 39 X. W. Rep. 419; Sommermeyer v. Schwartz, S9 Wis. 66 — 61 X. W. Rep. 311; Hughes v. Cummings, 7 Colo. 138 — 2 Pac. Rep. 2S9; Sehad v. Sharp. 95 Mo. 573 — 8 S. W. Rep. 549; St. Louis v. Lanigan, 97 Mo. 175 — 10 S. W. Rep. 475; Bruekman v. Taussig. 7 Colo. 561 — 5 Pac. Rep. 152; Treat v. Maxwell, S2 Me. 76 — 19 Atl. Rep. 98; Head v. Daniels, 38 Kan. 1 — 15 Pac. Rep. 911; Kenney v. Greer, 13 111. 432 — 54 Am. Dec. 439; Galpin v. Page, 18 Wall. 350; Ely v. Tallman, 14 Wis. 28.) PRINCIPLES INVOLVED IN JURISDICTIONAL INQUIRIES. 165 When the record in an action in a court of general juris- diction is silent, the presumption of the jurisdiction of such court includes the further presumption that the defendant has been duly served with summons, when the judgment is called in question in a collateral proceeding. (Anderson v. (hay. 134 111. 550 — 2.3 N. E. Rep. 843; Clark v. Hillis, 134 Ind. 421 — 34 N. E. Rep. 13; In re Eichhoff, lot Cal. 600 — 36 Pac. Rep. 11.) If the judgment recites the facts upon which jurisdiction depends, or of its exercise of such jurisdiction, it obviates the necessity for indulging in any presumptions, for it is only in case of the silence of the record that occasions a resort to presumptions. (McClanahan v. West. 100 Mo. 309 — 13 S. W. Rep. 674; Sims v. Gay, 109 Ind. 501 — 9 N. E. Rep. 120; Benefield v. Albert. 132 111. 671—24 N. E. Rep. 634; In re Eichhoff, 101 Cal. 600 — 36 Pac. Rep. 11; Pope v. Harrison, 16 Lea. 82; Baker v. Chapline, 12 Iowa, 204; Huntington v. Charlotte, 15 Vt. 46.) Recital of Jurisdictional Facts Insufficient. § 181. ISTo incompatibility existing between the disclosures of the record and the general presumption of jurisdiction, the regularity of the judgment of a court of record will be presumed. But on the contrary, if the face of the record discloses affirmatively what was done toward acquiring juris- diction, there is no presumption that anything more was done to confer it. Hence, if the record recites such jurisdictional facts and these are insufficient to confer jurisdiction, the authority of the court to pronounce judgment in the particu- lar case can not be aided by the indulgence in presumptions that such recital is incorrect or incomplete, for the affirmation of the existence of jurisdictional facts precludes the possi- bility of support by way of presumptions, that otherwise would prevail, were there no recitals whatever in the record. (Barber v. Morris, 37 Minn. 194 — 33 N. W. Rep. 559-. Dillard v. Iron Co., 82 Va. 734 — 1 S. E. Rep. 124: Blanton v. Carroll. 86 Va. 539 — 10 S. E. Rep. 329; Hahn v. Kelly. ::4 Cal. 391 94 Am. Dec. 742; Hearing v. Chambers, 103 Pa. St. 172.) Should the disclosures of the record itself show amrma-- tively that jurisdiction of the controversy is wanting, or the court has failed to acquire jurisdiction of the defendant in 166 VOID JUDICIAL AND EXECUTION SALES. the case, the judgment is not supported by any presumptions and is manifestly an unqualified nullity, impeachable even collaterally anywhere and everywhere by any one interested. (Furgeson v. Jones. 17 die. 204 — 20 Pac. Rep. 842; Wall v. Wall, 123 Pa. St. 545 — 16 Atl. Rep. 598; Adams v. Cowles, 95 Mo. 501 — S S. W. Rep. 711; Brickhouse v. Sutton. 99 X. C. 103 — 5 S. E. Rep. .380; Jewett v. Land Co.. 64 Minn. 531 — 67 N. W. Rep. 639; Pressley v. Harrison. 102 Ind. 14 — 1 N. E. Rep. 188; Ex parte Sawyer, 124 U. S. 200 — S Sup. Ct. Rep. 4S2 ; Frankel v. Satterfield, 9 Houst. 201 — 19 Atl. Rep. S9S; Murphy v. Lyons. 19 Xeb. 6S9 — 28 X. W. Rep. 328.) And the recitals in the judgment of the due service of pro- cess upon the defendant may be overcome .by the disclosures upon the face of the entire record to the contrary, and this even in a collateral attack, (Goodkind v. Bartlett, 153 111. 419 — 38 X. E. Rep. 1045: Culver v. Phelps. 130 111. 217 — 22 X. E. Rep. S09; Fowler v. Simpson. 79 Tex. 6ii_i.: S. W. Rep. 682; Diekison v. Dickison, 124 111. 483 — 16 X. E. Rep. 861.) as where the recital in the judgment of the service of process is contradicted by the return of such service. (La v. Grommes. 158 111. 492 — 41 X. E. Rep. 1080; Laney v. Garbee, 105 Mo. 355 — 16 S. W. Rep. 831; Laney v. Sweeney. 105 Mo. 360; 16 S. W. Rep. S32.) But where service of summons as evidenced by the return in the record is defective, but judgment is subsequently entered containing affirmative recitals of jurisdiction, the recital of finding in the judgment in this regard prevails over the disclosure in the record by way of such return of service of process, the judgment being fortified by the presumption that other ample and available evidence was had by the court than that contained in such insufficient return. The judg- ment accordingly will be invulnerable upon an attempt at collateral impeachment or contradiction. (Heek v. Martin. 75 Tex. 469—13 S. W. Rep. 51; Goodwin v. Sims, 86 Ala. 102 — 5 So. Rep. 587; Schee v. Le Grange, 78 Iowa, 101 — 42 X. W. Rep. 616; Davis v. Robinson. 70 Tex. 394—7 S. W. Rep. 749.) Nor will the presumption of jurisdiction supporting the judgment of a court of general jurisdiction be overcome merely because of the absence from the judgment-roll of the affirmative evidence establishing the existence of jurisdic- PRINCIPLES INVOLVED IN JURISDICTIONAL INQUIRIES. 167 tion, for it is in the event of silence of the record that the presumptions are resorted to in support of the judgment, (Nye v Swan, 42 Minn. 243-44 N. W. Rep. 9; McConnell v. Day, 61 Ark 404-:'.:; S. \Y. Rep. 731; Herriek v. Butler, 30 Minn. 156 — 14 x W Rep 794; McClanahan v. West. 100 Mo. 309- 13 S. W. Kep. 674; Benefield v. Albert, 132 111. 665-24 N. E. Rep. 634; Sims v. Gay 109 Ind. 501 — 9 N. E. Rep. 120; Settlemeier v. Sullivan, 97 L. b. 444.) No Presumptions Obtain in Direct Attack. § 182. The rule that the record of a court of general juris- diction imports and is conclusive evidence of its own verity is not invoked in case of a direct proceeding to impeach the judgment hv showing that the recitals therein contained are false if such recitals are such that if false the court had no jurisdiction of the person of the defendant. Therefore, while the record purports to state the truth, it may neverthe- less be shown that the substance of the recital is false. A familiar instance is that where the recital is embodied in the judgment that the defendant had been duly and properly summoned, which may be shown in a direct proceeding to impeach the judgment, to be untrue. (Jamison v. Weaver. *4 Iowa. 611-51 X. W. Rep. 65; Quarles v Hiern, 70 Miss. 891-14 So. Rep. 23; Wolf v. Bank. 84 Iowa, loS-50 N. W. Rep. 561; Duncan v. Gardine, 59 Miss. 550; Newcomb v. Dewey, 27 Iowa, 381.) Presumptions where Jurisdiction is Acquired by Constructive Notice. § 183. Much conflict exists in the adjudicated cases upon the proposition as to whether or not proceedings against non- residents wherein jurisdiction rests upon constructive service of process, or attachment of the defendant's property without voluntary appearance, are entitled to be supported by the usual presumptions accorded to judgments wherein jurisdic- tion rests upon personal service of summons. Pursuanl to the doctrine announced by a decided preponderance of the authorities such proceedings are contrary to the course of the common law, and dependent for their validity upon a strict compliance with all the statutory requirements touching the acquisition of jurisdiction. Every essential step prescribed by statute must affirmatively appear to have been substan- 168 VOID JUDICIAL AXD EXECUTION SALES. tially complied with, and no presumptions can be invoked in support of jurisdiction. (Beckett v. Cuenin, 15 Colo. 281 — 25 Pac. Rep. 167; Furgeson v. Jones, 17 Ore. 204 — 20 Pac. Rep. S42; Noble v. Railway Co., 147 U. S. 165 — 13 Sup. Ct. Rep. 271; Dick v. Foraker, 155 U. S. 404 — 15 Sup. Ct. Rep. 124; Trust Co. v. Railway Co., 139 U. S. 137 — 11 Sup. Ct. Rep. 512; Swift v. Meyers, 37 Fed. Rep. 37; Galpin v. Page, 18 Wall. 350.) This rule so ably expounded by the distinguished jurist, Justice Field of the federal supreme court in Galpin v. Page, and since followed, seems to be founded upon sound prin- ciple and the wisest considerations of public policy and justice. Upon the other hand there is the contention advanced in other cases to the effect that a statutory mode established for acquiring jurisdiction, by a court of general jurisdiction, applicable generally to all cases cognizable in such tribunal, as well as to all persons, is not to be considered as a special mode for acquiring jurisdiction, and that there should be no difference in the presumptions applicable to judgments of courts of general jurisdiction, when jurisdiction was ac- quired by constructive service of process and seizure of property, from such as are founded upon personal service of summons. That it is illogical to make the distinction by extending the indulgence of presumption in the one case and withholding it in the other. (Tn re Newman, 75 Cal. 213 — 16 Pac. Rep. 887; Stewart v. Anderson, 70 Tex. 5S8 — 8 S. W. Rep. 295: St. Louis v. Lanigan, 97 Mo. 175 — 10 S. W. Rep. 475; Sichler v. Look. 93 Cal. 600 — 29 Pac. Rep. 220; Cooper v. Sunderland, 3 Iowa, 114 — 66 Am. Dec. 52.) It has been held that the recitals in the record of jurisdic- tion in the proceedings of a court of record where jurisdic- tion has been acquired by constructive service of process are sufficient to support the judgment when assailed in a col- lateral proceeding, though this support falls when the record itself impeaches the truth of such recital. (In re Newman. 75 Cal. 213 — 16 Pac. Rep. 887; Swift v. Yanaway, 153 111. 197 — 38 N. F. Rep. 589; Sichler v. Look. 9:; Cal. 600 — 29 Pac. Rep. 220; Van Matre v. Sankcy. 148 111. 536 — 36 N. E. Rep. 628.) Therefore, where the affidavit or other proceeding neces- sary to confer jurisdiction is a part of the judgment-roll, or a PRINCIPLES INVOLVED IN JURISDICTIONAL INQUIRIES. 169 part of the record, upon which it appears that the necessary steps have not been taken, these negative the recital of juris- diction, which must yield to the disclosures of the record contradicting its verity. (Barber v. Morris, 37 Minn. 194 — 33 N. W. Rep. 559; Brown v. Rail- way Co., 3S Minn. 506 — 38 N. W. Rep. 698; Cumminga v. Tabor, 61 Wis. 1S5 — 21 N. W. Rep. 72; Murphy v. Lyons, 19 Neb. 689 — 28 N. W. Rep. 328.) Extent of the Rule of Presumptions. § 184. The presumption of jurisdiction may have a more extended latitude than the mere dispensing with the necessity of furnishing the proof that summons or process has been served upon the defendant, for there may be no evidence in the records or files in the cause that there has ever been a petition praying for the sale of the property presented to the court, or some other essential document may not be found among the files, and in such case if the court is one considered as of general jurisdiction it will bo presumed that such petition or other document originally existed in sufficient form and substance, but that the same has disappeared from the files. (McConnell v. Day. 61 Ark. 464 — 33 S. W. Rep. 731 : Nye v. Swan. 42 Minn. 243 — 44 N. W. Rep. 9: Seye v. McCallister, IS Tex. SO — 67 Am. Dec. 689; Alexander v. Mavriek, IS Tex. 179 — 67 Am. Dee. 693; Doolittle v. Holton, 28 Vt. 819 — 67 Am. Dec. 745 ; Worthy v. Johnson, 8 Ga. 236 — 52 Am. Dec. 399.) So the lapse of a long period of time from the date of the sale, whether execution or judicial, and the time when it is assailed upon the ground of its invalidity, raises the pre- sumption that the court aud its functionaries performed their respective duties, notwithstanding the non-existence of any positive evidence of the existence of certain acts provided by statute to be performed in the consummation of the sale. Attacks upon judicial proceedings and sales are not favored under circumstances of this nature. (Sledge v. Elliott, 116 X. C. 712 — 21 S. E. Rep. 797: Bradford v. Larkin, 57 Kan. 90 — 45 Pac. Rep. 69; Seward v. Didien, 16 Neb. 58 — 20 N. W. Rep. 12: Swift v. Yanaway. 153 111. 197 — 38 N. E. Rep. 589; Vasques v. Richardson, 19 Mo. 96; Giddings v. Smith. 15 Vt. 344; Whit- man v. Fisher. 74 111. 147: Hazard v. Martin. 2 Vt. S4: Stevenson v. McReary, 20 Miss. 9 — 51 Am. Dee. 102.) 170 VOID JUDICIAL AXD EXECUTION SALES. Presumptions not Applicable to Inferior Courts. § 185. With respect to presumptions there is a funda- mental distinction between judgments pronounced by courts of general and those rendered by inferior or limited jurisdic- tion. The presumption in regard to the judgments of in- ferior courts is diametrically the opposite to that affecting judgments of courts of record, for the acts and proceedings of courts not of record are not only strictly confined to the scope of their jurisdiction, but their proceedings must af- firmatively disclose that they have so acted. The existence of every fact essential to confer jurisdiction must be evi- denced by its record, and failing to thus show such juris- dictional facts, the judgment is open to collateral impeach- ment. The judgment of such a court can receive no support from presumptions, as in case of a judgment of a court of record, for nothing will be presumed to be within its juris- diction, and the falsity of the recital of jurisdictional facts may be shown by evidence aliunde, the memorials of their transactions are not unimpeachable even when collaterally called in question. (Smith v. Clausmier. 136 Ind. 105 — 35 N. E. Rep. 904; Dry Goods Co. v. Fuller, 5S Ark. 181 — 24 S. W. Rep. 108; King v. Bates, so Mich. 367 _ 45 x. W. Eep. 147: Bank v. Wilcox, 15 R. I. 258 — 3 Atl. Rep. 211; Emery v. Royal. 117 Ind. 299 — 20 X. E. Rep. 150: Smith v. Fin- ley. 52 Ark. 373 — 12 S. W. Rep. 782: Hollinir^.vorth v. Stone. 90 Ind. 244; Newman v. Manning, 89 Ind. 422; Tucker v. Han-is. 13 Ga. 1 — 58 Am. Dec. 4S8: Palmer v. Oakley. 2 Doup. 433 — 47 Am. Dec. 41: Cooper v. Sunderland. 3 Iowa. 114 — 66 Am. Dec. 52: Sears v. Terry. 26 Conn. 273; Sanborn v. Fellows. 22 X. H. 4S9; Corwin v. Merritt. 3 Barb. 343; Saladay v. Bainhill. 29 Iowa. 555.) But in the absence of a provision of statute requiring that the jurisdictional facts shall affirmatively appear in the minutes or other records of the court, it has been held that the facts necessary to show that a court of limited jurisdic- tion has acted within its jurisdiction may be proved by other competent evidence, though this does not extend to such facts as the law requires the court to set forth upon the record. We are inclined to think this doctrine to be opposed to the current of authority, but consider it consonant with reason and sound in principle. (In re Williams, 102 Cal. 70 — 36 Pae. Rep. 407: District v. Goldman, 65 Cal. 638 — 4 Pac. Rep, 676;" Jolly v. Foltz. 34 Cal. 321; Williams v. PRINCirLES INVOLVED IN JURISDICTIONAL INQUIRIES. 171 Camniack, 27 Miss. 209 — 61 Am. Dec. 50S; Van Duzen v. Sweet, 51 N. Y. 278; Behymer v. Nordloh, 12 Colo. 352; Liss v. Wilt oxen, 2 Colo. 85.) But when the necessary facts touching the acquisition of jurisdiction affirmatively appear upon the face of the record,, the adjudication of an inferior judicial tribunal are regarded as favorable as judgments of courts exercising a more general jurisdiction, and are not subject to collateral impeachment. (Leonard v. Sparks, 117 Mo. 103 — 22 S. \Y. Rep. 899; Heck v. Martin, 75 Tex. 469 — 13 S. W. Rep. 51; Turner v. Conkey, 132 Ind. 248 — 31 N. E. Rep. 777; Simmons v. Saul, 13S U. S. 439 — 11 Sup. Ct. Rep. 369; Grunsenmeyer v. Logansport, 76 Ind. 549; Dore v. Dougherty, 72 Cal. 232 — 13 Pac. Rep. 621; Long v. Burnett, 13 Iowa, 28 — 81 Am. Dec. 420.) Courts of Probate Jurisdiction. § ISC. Courts of probate, orphans' courts or by whatever name known, having the administration of the estates of decedents and of persons under disability, are in many states considered courts of special or limited jurisdiction, while in other states they are regarded as of general juris- diction of the class of cases over which they are author- ized by law to act. Where such courts are of limited or special jurisdiction, it is incumbent upon him who claims title under their adjudications to show affirmatively that all the essential steps necessary to confer jurisdiction have been taken, as no presumptions will aid the proceedings. But such courts are not so regarded except in a minority of the states. (Tracy v. Roberts, SS Me. 310 — 34 Atl. Rep. 68: Dorrance v." Rayns- ford, 67 Conn. 1 — 34 Atl. Rep. 706: Bank v. Wilcox. 15 R. I. 258 — 3 Atl. Rep. 211; Elwood v. Northrup, 106 N. Y. 172 — 12 N. E. Rep. 590 ; Sloan v. Sloan, 25 Fla. 53 — 5 So. Rep. 603 ; Railway Co. v. Judge, 63 Mich. 676 — 30 N. W. Rep. 69S; In re Hawley, 104 N. Y. 250 — 10 N. E. Rep. 352; Williams v. Morton, 3S Me. 47 — 61 Am. Dec. 229; Root v. McFerrin. 37 Miss. 17 — 75 Am. Dec. 49; Tucker v. Harris, 13 Ga. 1 — 58 Am. Dec. 4S8; Goforth v. Langworthy, 4 Ohio. 129 — 19 Am. Dec. 588.) On the other hand, according to the weight of authority, and in a majority of the states, courts exercising probate jurisdiction, by whatever named designated, while of special jurisdiction are nevertheless regarded as courts of general 1T2 VOID JUDICIAL AXD EXECUTIOX SALES. jurisdiction of that peculiar class of cases and their orders and judgments are upheld by similar presumptions ap- plicable to other courts of general jurisdiction. (Lyne v. Sanford, 82 Tex. 58 — 19 S. W. Rep. S47: Sherwood v. Baker. 105 Mo. 47:2 — 10 S. \Y. Rep. 938; Pike v. Chicago, 155 HI: 656 — 40 N. E. Rep. 567; Davis v. Hudson, 29 Minn. 27 — 11 N. W. Rep. 136; Camden v. Plain. 91 Mo. 117 — 4 S. W. Rep. 86; Simmons v. Saul, 138 U. S. 439 — 11 Sup. Ct. Rep. 309: McMillan v. Reeves. 102 N. c. 550 — 9 S. E. Rep. 449: Currie v. Franklin. 51 Ark. 338 — 11 S. W. Rep. 477: Sullivan v. Rabb, S6 Ala. 433 — 5 So. Rep. 746; Succession of Bellande. 41 La. Ann. 491 — So. Pep. 505; Blair v. Sennett, 134 111. 78 — 21 X. E. Rep. 969; Cowens v. Tool. 36 Iowa, S2; Doolittle v. Holton. 2s Vt. 819 — 67 Am. Dec. 745.) CONCLUSIVENESS OF JUDGMENTS AXD DE- CREES. Parties and Privies. § 187. In actions in personam the doctrine of former ad- judication is limited to the parties and privies pursuant to an ancient and undisputed rule, but he who seeks to invoke this doctrine must of necessity be one who tendered to the other an issue to which the other could have joined an issue of law by demurrer or an issue of fact by plea or answer. (Jones v. Vert. 121 Ind. 140 — 22 X. E. Rep. 882.) It is a universal rule of law that not only the parties to the suit but also those who are in privity with them are concluded by the judgment of a court of competent juris- diction on all questions properly adjudicated by it. (Barrick v. Horner. 7s Md. 253 — 27 Atl. Rep. 1111; Harnock v. Har- low, 90 Cal. 298 — 31 Pac. Rep. 166; Morrill v. Morrill, 20 Ore. 90 — 25 Pac. Pep. 302: Peck v. McLean. 30 Minn. 228 — 30 X. W. Rep. 759: Woods v. Coal Co., 84 Ala. 5' I 3 So. Rep. 175; Gould v. Sternberg, 128 111. 510 — 21 N. E. Rep. 52S.) And the adjudication is conclusive between the parties ami their privies when the court had jurisdiction of the parties ami subject-matter of the action, even if the court may have proceeded irregularly, and the determination thus erroneous in consequence thereof. (Maloney v. Dewey, 12'J I:!. 395 — 19 X. E. Rep. 848; Norria v. He, 152 111. 190 — :;- X. P. Rep. 762; < renshaw v. Julian, 26 S. I , 283 — 2 CO NCLUSIVENESS OF JUDGMENTS AND DECREES. 173 S E Rep. 133; Drake v. Ireland, 4 Utah, 192-7 Pac. Rep. 714; Griffin v. Railway Co., 102 N. Y. 449-7 N. E. Rep. 735; Phillips v. Lewis, 109 Ind. 62 — 9 \. E. Rep. 395.) But. if the judgment was rendered by a court having no jurisdiction of the subject-matter or of the parties against whom it is rendered it is not conclusive upon the very plain- est of fundamental principles. (Telegraph Co. v. Taylor. 84 Ga. 408-11 S. E. Rep. 396; Hancock v Flynn 8 N. Y. Supp. 133; Arthur v. Israel. 15 Colo. 147 — 25 Pac. Rep. 81; Hope v. Blair, L05 Mo. 85-16 S. W. Rep. 595; Dailey v. Sharkey. 29 Mo. App. 518.) Nor is a party conclusively bound by a decree inoperative and void for uncertainty. (Shepherd v. Pepper, 133 U. S. 626 — 10 Sup. Ct. Rep. 43S.) The judgments of courts having jurisdiction to pronounce them are considered as conclusive upon the parties and those in privity with them because an opportunity was afforded to those to assert or defend their rights and interests prior to the rendition of such judgment. (Axford V. Graham. 57 Mich. 422-24 N. W. Rep. 158; Jones v. Vert, 121 Ind. 140 — 22 N. E. Rep. 882.) Void as to One only of Several Parties. § 188. A judgment void as against one of the parties by reason of jurisdictional infirmity because of want of process is nevertheless valid against other parties properly before the court. Accordingly, it has been held that a decree of sale which is a nullity as against the mortgagor for want of juris- diction is still valid as against the mortgagee plaintiff, and the purchaser at a sale under the decree accedes to all the rights of the mortgagee as his assignee, upon the principle that a decretal sale passes the interest of all parties to the suit, thus investing the purchaser with the plaintiff's rights though no title or rights to the property will pass by the sale other than that evidenced by the original mortgage. (Dutcher v. Hobby, 86 Ga. 198-12 S. E. Rep. 356; Townshend v. Thompson, 139 N. Y. 152-34 N. E. Rep. 891; Jordan V. Sayre, 29 Fla. 10 o— 10 So. Rep. 823.) In what Capacity Judgment Conclusive. § 189. Where the entire proceedings in the cause includ- ing the judgment run against the defendant and purport to 174 VOID JUDICIAL AND EXECUTION SALES. bind him in his individual capacity it is of no binding effect upon him as a trustee nor upon the trust property of which he holds the legal title as such fiduciary. The reason of the rule is that the beneficiary can not be affected by a judg- ment in a proceeding wherein he was neither actually nor constructively a party as such. (Sonnenberg v. Steinbach, 9 S. Dak. 518 — 70 N. W. Eep. 655; Landon v. Townshend, 112 N. Y. 93 — 19 X. E. Rep. 424; Colt V. Colt, 111 U. S. 566— 5 Sup. C't. Rep. 553; Rathbone v Hooney, 58 N. Y. 465.) The rule that a judgment is conclusive on a party only in the character in which he is sued also applies to administra- tors, guardians and assignees, for when sued in their fidu- ciary capacity it will not conclude them personally, the judgment being presumptively only conclusive against a party in the character in which he has been sued. (Collins v. Hydon, 135 N. Y. 320 — 32 N. E. Rep. 69; Van Cott v. Prentice, 104 N. Y. 45 — 10 X. E. Rep. 257; McE-ernice v. Seaton, 111 Ind. 56 — 12 N. E. Rep. 101.) Though it is held that a judgment upon the merits against a claim set up by a defendant as a trustee will conclude him from subsequently prosecuting a suit upon the same claim in his individual capacity. (Wright v. Miller, 147 X. Y. 362 — 41 N. E. Rep. 698.) Among parties concluded are those who caused a suit to be instituted and prosecuted, or are substantially parties, as well as those who affirmatively appear as parties by the record. (Bennitt v. Mining Co., 119 111. 9 — 7 N. E. Rep. 498; Lyon v. Sand- ford, 4? N. J. Eq. 411 — 7 Atl. Rep. 869; Worley v. Hineman, 6 Ind. App. 240 — 33 N. E. Rep. 260; Strong v. Insurance Co., 62 Mo. 2S9 — 21 Am. Rep. 417; Conger v. Chilcote 42 Iowa, 24: Landis v. Hamilton, 77 Mo. 554; Costle v. Xoyes, 14 X. Y. 335. * Suit Commenced After Defendant's Deatn. § 190. The judgment rendered in a suit instituted subse- quent to the death of the debtor defendant is absolutely void, and by reason of its nullity concludes no one. As a matter of necessity such a suit manifestly must be founded upon con- structive service of process, but if the defendant is dead at the time he is constructively notified of the pendency of the CONCLUSIVENESS OF JUDGMENTS AND DECREES. 175 suit there is in fact no one to notify and the alleged pub- lished notice is tantamount to no notice at all. Hence there is no jurisdiction to render judgment. (Richards v. Thompson, 4:; Kan. 209-23 Pac. Rep. 106; Craven v. Bradley. 51 Kan. 336 — 32 Pac. Rep. 1112.) Proceedings Against Unknown Heirs. § 191. The judgment in a proceeding against the unknown heirs and devisees of one presumed from a continued absence of over thirty years To be dead, and finding him to be dead and making a disposition of his property, is an unconditional nullity in so far as his interest in the property is concerned if in fact he was alive and was not a party to the proceed- ings and the court had no jurisdiction over him. (Burton v. Perry, 146 111. 71 — 34 N. E. Rep. 60.) Upon what Matters Conclusive. § 192. The rule supported by the weight of authority is that a judgment or decree is conclusive between the parties and their privies upon all those matters properly involved and which were or might have been raised, litigated and de- termined as incident to or essentially connected with the subject-matter of the litigation. (Robv v. Canal & Dock Co.. 165 111. 277-46 N. E. Rep. 214: Iron Co. v. Rarig, 93 Va. 595 — 25 S. E. Rep. S94; Railway Co. v. Railway Co., 164 111. 88 — 45 N. E. Rep. 488 ; Griffin v. Railway Co., 102 N. Y. 449_7 N. E. Rep. 735: Bailey v. Bailey. 155 111. 551 — 4 N. E. Rep. 394; Kurtz v. Carr, 105 Ind. 574 — 5 N. E. Rep. 692; Parkhurst V. Sum- ner, 23 Vt. 538 — 56 Am. Dec. 94.) As to the issues raised and determined a judgment is con- clusive between the parties on the same side of the cause to the same extent as if they had appeared in the action as opposing parties. (Nave v. Adams 107 Mo. 414 — 17 S. W. Rep. 958; Harmon v. -Au- ditor. 123 111. 122 — 13 N. E. Rep. 16; Parkhurst v. Randall, 110 N. Y. 386 — 18 N. E. Rep. 123.) But it is held that where one of two defendants joins in an issue with the plaintiff, the determination of such issue in such defendant's favor is not a determination of the ques- tion between the defendants. (Jones v. Vert, 121 Ind. 140-22 N. E. Rep. 8S2.) 1T6 VOID JUDICIAL AND EXECUTION SALES. So where one mortgage is made as security for several promissory notes and such notes are all transferred to dif- ferent parties, the transfer is in effect an assignment pro tanto of the mortgage. All such holders must be made par- ties to an action for the enforcement of the mortgage lien, or else it is no bar to a subsequent foreclosure by the holder of any of the notes, who was not originally made a party. Todd v. Cremer, 36 Neb. 430 — 54 X. W. Rep. 674.) Who are Privies. § 193. That a judgment of a court of competent jurisdic- tion having jurisdiction of the parties and subject-matter is conclusive, while standing unreversed, upon the parties and their privies is an undisputed proposition of law. but it is sometimes a matter of nice distinction to determine who are privies. Ordinarily a privy to a judgment or decree is one who has succeeded to or acquired rights in the property affected subsequent to the inauguration of the proceedings in the particular suit, and from one who is a party thereto. Privies are persons claiming under or in right of the original parties, thus being their successors in interest, either by reason of blood or representation, or by grant or assignment of the subject-matter after suit brought. (Orthwin v. Thomas. 127 111. 554 — 21 X. E. Rep. 130; Wamock v. Harlow. 96 Cal. 29S — 31 Pac. Rep. 166; Hill v. Bain, 15 R. I. 873 — 23 Atl. Rep. 44; Lipscomb v. Postell, 38 Miss. 476 — 77 Am. Dec. 651; Winston v. Westfield, 22 Ala. 760 — 58 Am. Dec. 278.) Effect where Judgment or Decree is Void. § 194. To establish title to property by virtue of judicial proceedings two principal sets of circumstances must be looked to, viz., (a) the first and all-important of these is whether the judgment under which the sale was made is a valid one, and (b ) whether the proceedings of sale were made in conformity with the requirements of law. Back of the judgment the purchaser need not go in order to ascertain its justness upon the facts upon which it was rendered, nor need he be concerned as to the correctness of the conclusions of law, provided only that his rights have been derived while the judgment or decree was not stayed by supersedeas, nor reversed or annulled on appeal, nor va- cated by a direct suit in equity. A different question how- CONCLUSIVENESS OF JUDGMENTS AND DF.fi:; 171 ever is presented in case the judgment is not merely irregu- lar or voidable, but absolutely void for inherent jurisdictional defect, in which case the title ostensibly founded upon it must fall to the ground whenever the inherent invalidity is suggested. Want of jurisdiction of either the person or the subject- matter being apparent upon the face of the record, as a general rule, the judgment is unqualifiedly without legal efficacy, and manifestly insufficient as a foundation for the acquisition of rights thereunder. (Moyer v. Bucks. 2 Ind. App. 571 — 2S N. E. Rep. 992 ; Kingman v. Paulson, 126 Ind. 507 — 26 N. E. Rep. 393; Seaman v. Galligan, 8 S. Dak. 277 — 66 N. W. Rep. 458 ; Ex parte Gray, 48 S. C. 566 — 26 S. E. Rep. 786; Railway Co. v. Hubbard. 116 Ind. 193 — 18 N. E. Rep. 611; Quarle v. Abbett. 102 Ind. 233 — 1 N. E. Rep. 476; Hope v. Blair, 105 Mo. 85 — 16 S. W. Rep. 595; Furgeson v. Jones, 17 Ore. 204 — 20 Pac. Rep. 842; Wayne v. Caldwell. 1 S. Dak. 483 — 47 N. W. Rep. 547.) But the judgment of a court of general jurisdiction is not void so as to be open to successful collateral assault unless it affirmatively appears from the whole record that the court acted without jurisdiction in pronouncing it. The fact that the court transcended its powers must be disclosed upon an inspection of the record in order to make the judgment void upon collateral attack. This is the rule deducible from the consensus of all judicial enunciations, and best accords with principle and reason. The judgment though void in fact because rendered without jurisdiction can not be treated as a mere nullity when the infirmity is not apparent upon the record, which is either silent as to the acquisition of juris- diction or does not itself affirmatively impeach the juris- diction of the court. (Brown v. Wilson, 21 Colo. 309 — 40 Pac. Rep. 688; Williams v. Haynes, 77 Tex. 283 — 13 S. W. Rep. 1029; Pioneer Land Co. v. -Mad- dux. 109 Cal. 633 — 42 Pac. Rep. 295; People v. Thomas, 101 Cal. 57 1 — 36 Pac. Rep. 9; Hahn v. Kelly, 34 Cal. 391 — 94 Am. Dec. 742; Wil- kinson v. Schoonmaker, 77 Tex. 615 — 14 S. W. P.p. 223; In re Eich- boff, 101 Cal. 600 — 36 Pac. Rep. 11; Coil v. Haven, 30 Conn. 190 — 79 Am. Dec. 244; Finneran v. Leonard. 7 Allen, 54 — 83 Am. Dec. 665; Granger v. Clark, 22 Me. 128; Cook v. Darling. IS Pick. 398; CaUen v. Ellison, 13 Ohio St. 446 — 82 Am. Dec. 448 ; McDonald v. Leewright, 31 Mo. 29 — 64 Am. Dec. 166; Johnston v. Jones, 2 Neb. 126; Wilcox v. Kassick, 2 Mich. 165.) 12 178 VOID JUDICIAL AXD EXECUTION SALES. Judgments Outside the Issues not Binding. § 195. Judgments and decrees outside of the issues are at least to that extent void because rendered without juris- diction, and as the defect is apparent upon the face of the record, as a matter of necessity collateral impeachment is always available in such case. In so far as it attempts to ad- judicate matters not in issue a decree or judgment is there- fore inoperative. (Metcalf v. Hart, 3 Wyo. 513 — 27 Pac. Rep. 000: Purdy v. Hall, 134 111. 298 — 25 N. E. Rep. 645; Sanders v. Logue, 88 Tenn. 355 — 12 S. W. Rep. 722; Merrill v. Washburn, 83 Me. 189 — 22 Atl. Rep. 118; Pille v. Emmons, 58 Kan. 118 — 48 Pac. Rep. 569.) And a void judgment where the infirmity is apparent upon the face of the record will not constitute a lien upon the real property of the judgment debtor in any event. (White v. Foote Lumber Co., 29 W. Ya. 385 — 1 B. E. Rep. 572.) And where the infirmity in the judgment is a jurisdic- tional one the fact that the land sold under it has passed into the hands of third parties will not defeat a recovery of the property, as the judgment had no effect upon the property or its title. (Great West Mining Co. v. Mining Co., 12 Colo. 46 — 20 Pac. Rep. 771.) Actions in Personam and Proceedings in rem Distinguished. § 196. Pursuant to an elementary and fundamental prin- ciple of jurisprudence notice of the pendency of a suit in personam and an opportunity to be heard is an indispensable requisite before the court is vested with authority to pro- nounce judgment against a defendant. The rule is ancient and universal that no one can be personally bound by a judi- cial sentence until he has first had his day in court, by which is meant that he must be first duly cited to appear and has been given an opportunity to be heard in his defense. A judgment purporting to personally bind the judgment de- fendant in the absence of such citation and opportunity to be heard is wanting in the essential attributes of a judicial determination and wholly inoperative. (Evans v. Johnson, 39 W. Va. 299; 19 S. E. Rep. 623; Furgeson v. Jones, 17 Ore. 204 — 20 Pac. Rep. 842; Dorrance v. Raynsford, 67 Conn. 1 — 34 Atl. Rep. 706.) CONCLUSIVENESS OF JUDGMENTS AND DECREES. 179 The difference between actions in personam and proceed- ings in rem is one of a radical nature and of much import- ance. Jurisdiction in the latter class of cases attaches not by reason of notice or citation to any individual, though some notice is required to fully clothe the court with full power to adjudicate, but by virtue of the seizure or attach- ment of the property merely, which being thus brought within the jurisdiction of the tribunal becomes subject to its final disposition. Interested parties are presumed' to be ap- prised of the proceedings from the very fact of seizure and the published notice or usual proclamation, but no personal notice need be given. All that is required is some act carry- ing notice of the proceedings in a general way to whom it may concern. The statute generally regulates and prescribes in this regard. In judgments in personam only the parties and their privies are concluded by the judgment, but in ac- tions in rem all the world is bound by the adjudication. While it is said that jurisdiction in proceedings in rem at- taches by seizure of the res yet the mere seizure is not con- sidered sufficient to warrant the court to proceed to judgment, for a sentence pronounced from the simple fact of seizure alone would be considered merely as an arbitrary edict of a judicial officer and not a judicial determination upon the question of condemnation or forfeiture. fHassall v. Wilcox. 130 IT. S. 493—9 Sup. Ct, Eep. 590; Hcidritter V. Oil Cloth Co.. 112 U. 8. 294 — 5 Sup. Ct. Rep. 135: The Queen of the Pacific. 61 Fed. Eep. 213; Windsor v. McVeigh, 93 U. S. 274; filler v. United States. 11 Wall. 268; Cooper v. Reynolds. 10 Wall. 317: The Clohe. 2 Rlatchf. 427; Bradstreet v. Neptune I. Co.. 3 *umn. 601 ; P.ailev v. Sundberg. 43 Fed. Rep. 81; State v. Railway Co.. 10 Nev. 47: The Rio Grande, 23 Wall. 458; Noble v. Thompson Oil Co.. 79 Pa. St. 354; Street v. Insurance Co., 12 Rich. 13 — 75 Am. Dec. 714.) Proceedings in mortgage foreclosure and sale under decree therein, notwithstanding they operate upon the res, are never- theless against those made defendants and are binding upon none except such as are named as defendants. Sueh proceed- ings are sometimes and perhaps very properly designated as pro- ceedings quasi in rem. So in several states land can not be sold for delinquent taxes except under the judgment of a court of competent jurisdiction, the judgment being usually obtained in a somewhat summary manner, and such pro- 180 VOID JUDICIAL AND EXECUTION SALES. ceedings are regarded as strictly in rem, while in others they are considered as allied to proceedings for the enforcement of a contract lien, the judgment and sale being binding upon the* defendants named only. A similar rule obtains in actions for the enforcements of liens for street improvements. (Wood v. Brady, 150 IT. S. IS — 14 Sup. Ct. Eep. 6; Brady v. Burke, 90 Cal. 1 — 27 Pae. Rep. 52.) Questions of Title Conclusively Determined. § 197. It is a general principle of law that a judgment of a court of competent jurisdiction is a finality in respect to the claim or demand in controversy, where jurisdiction of the parties and subject-matter has been properly conferred. In such case the parties and all who are in privity with them are concluded by the adjudication, not only as to every matter which was actually offered and received either to sus- tain or defeat the claim or demand, but also as to any and all other matters incidentally connected with the subject- matter of the litigation and that are admissible and which might have been but were not offered in evidence for such purpose. (Bissell v. Spring Valley Township. 124 U. S. 225 — S Sup. Ct. Eep. 495: Lorillard v. Clyde, 122 X. Y. 41 — 25 X. E. R<>p. 292; Denver v. Middough, 12 Colo. 434 — 21 Pac. Rep. 565; Hobby v. Bunch. S3 Ga. 1 — 10 S. E. Rep. 113: State v. Branch, 134 Mo. 592 — 56 Am. St. Rep. 533; Cromwell v. County of Sac. 94 U. S. 351; Russell v. Place, 94 U. S. 60G. Consequently where a suit was brought to subject the lands of the defendant to sale for the satisfaction of the plaintiff's claim, a decree in his favor is final, if no appeal is taken therefrom, and the defendant can not have the same issue re- tried in another and independent suit founded upon a title which he might have but did not set up in the first suit. Xot having urged such title in the original suit he is estopped from ever afterward setting it up. (Reed v. Douglass, 74 Iowa. 244 — 37 X. W. Rep. 181; Dowell v. Ap- plegate, 152 U. S. 327 — 14 Sup. Ct. Rep. 611.) So where in an action the title and right to possession are in issue, litigated ami determined, the judgment ultimately entered becomes the highest evidence upon all questions thus adjudicated, both as to title and right of possession. xVnd CONCLUSIVENESS OF JUDGMENTS AND DECK 1S1 all defenses, rights and titles which a defendant may have he must urge in such action or be thereafter precluded from ever asserting them against the plaintiff, or those in privity with him. (Harmon v. Auditor. 123 III. 122 — 13 X. E. Rep. 161; Malloney v. Horan, 46 X. Y. 110 — 10 Am. Rep. 335; Fischli v. Fischli, 1 Blackf. 360 — 12 Am. Dec. 231; Snapp v. Snapp, s7 Ky. 554 — 9 S. W. Rep. 705; Cayce v. Powell. 20 Tex. 767 — 7:! Am. Dec 211; Todlock v. Eceles, 20 Tex. 782 — 73 Am. Dec. 213; Nichols v. Dibrell, 01 Tex. 540; Miller v. Sherry. 2 Wall. 237; Chilson v. Reeves, 29 Tex. 281.) Thus it was held that where in an action involving the title and possession of land the defendant neglected to set up his homestead right therein, he could not assert it in any subsequent suit. (Graham v. Culver. 3 Wyo. 639 — 29 Pac. Rep. 270.) So long as it stands unopened the judgment is conclusive between the parties and those in privity with them, not- withstanding it is clearly erroneous, but not void for want of jurisdiction. (Stevens v. Reynolds, 143 Ind. 467 — 41 X. E. Rep. 931; Morrill v. Morrill, 20 Ore. 96 — 25 Pac. Rep. 362; Peck v. McLean, 36 Minn. 228 — 30 X. W. Rep. 759: People v. Holladay, 93 Cal. 241 — 27 Pac. Rep. 1S6; Case v. Beauregard, 101 U. S. 688.) Misconception in Form of Proceeding. § 198. Impeachment of a judgment collaterally as an ab- solute nullity because of a misconception of the form of the proceedings is not permissible where jurisdiction was ac- quired over the person of the defendant by service of suffi- cient citation and the court has jurisdiction of the subject- matter. Thus where a .scire facias was sued out instead of bringing an ordinary action. (Tnsley v. United States, 150 U. S. 512 — 14 Sup. Ct. 158.) JSTor is the objection available upon collateral impeach- ment that the proceedings should have been in equity instead of at law. All such judgments must stand unless reversed on appeal, or annulled in a direct proceeding instituted for that purpose. (Reynes v. Dumont, 130 U. S. 354 — 9 Sup. Ct. Rep. 48G; Wylie v. Coxe, 14 How. 415; Clark v. Flint, 22 Pick. 231.) 1S2 VOID JUDICIAL AXD EXECUTION SALES Conclusiveness of Judgments as to Creditors. § 199. As a general rule judgments, excepting those in rem, are not binding upon strangers, the parties and their privies only being bound thereby. The judgment is binding on the parties even when it was obtained by fraud, until it is vacated by some direct proceeding. It can not be col- laterally attacked for fraud or collusion in its rendition. (Hollinger v. Reeme, 138 Ind. 363 — 36 N. E. Rep. 1114.) But it is well established that a third person, a creditor of a defendant for instance, may assail a judgment recovered against such defendant as fraudulent and collusive. Even if the judgment is procured through the fraud or collusion of both the parties for the purpose of defrauding some third person, the consequences of the same may be evaded even in a collateral proceeding by showing the fraud or collusion by means of which the judgment or decree was procured. Hence a third party whose rights are affected by the entry of a fraudulently obtained judgment may show that there was in fact no debt from the defendant to the judgment plaintiff. (Atlas National Bank v. More. 152 111. 528 — 38 N. E. Rep. 6S4; Palmer v. Martindell, 43 X. J. Eq. 90 — 10 Atl. Rep. 802; Smith v. Cuyler, 7S Ga. 654 — 3 S. E. Rep. 406; Henderson v. Thornton. 37 Miss. 448 — 75 Am. Dee. 70 ; Bergman v. Hutcheson, 60 Miss. 872 ; Freyden- dall v. Baldwin, 103 111. 325; Safford v. Weare, 142 Mass. 231 — 7 X. E. Rep. 730; Bunn v. AM, 29 Pa. St. 387 — 72 Am. Dee. 639; Beeler v. Bullitt, 3 A. K. Marsh. 280—13 Am. Dec. 161; Mackie v. Cairns. 5 Cow. 547 — 15 Am. Dec. 477; Robinson v. Davis, 11 N. J. Eq. 302 — 69 Am Dec. 591.) What Creditors May Avoid a Judgment. § 200. Only such strangers as would be prejudiced in some pre-existing right should the judgment be sustained, may as- sail the judgment as being void as to them because of fraud or collusion in obtaining it. These are permitted to impeach such judgment whenever sought to be enforced, because they have no standing to appeal from it or to move its vacation or reversal. (Ogle v. Baker, 137 Pa. St. 37S — 20 Atl. Rep. 993; Eureka Iron & Steel Works v. Bresnahan, 60 Mich. 332 — 27 X. W. Rep. 524; Palmer v. McMaster, 8 Mont. 1S6 — 19 Pac. Rep. 5S5; Fall River v. Riley. 140 Mass. 488 — 5 X. E. Rep. 481;' Mitchell v. Kintzer, 5 Pa. St. 216 — 47 Am. Dec. 408.) EBB0NE01 3 JUDGMENT WHERE SALE BEFORE REVERSAL". 183 So if a judgment creditor seeks to avoid a conveyance of the judgment debtor's property upon the ground that it was made with a fraudulent intent, the grantee of the judgment debtor may resist the attack with success by showing that the judgment was obtained through fraud and collusion. (Davis v. Davis. 20 Ore. TS — 2 5 Pac. Rep. 1 40; Fans v. Dark B. Mon. 397 — 17 Am. Dee. 77.) But where the judgment lien attaches before the convey- ance is made the grantee can only attack the judgment for such causes as are available to the judgment debtor himself. (Johns v. Pattee. 55 Iowa. 665 — 8 X. W. Rep. 663; Gallaugher v. Hebren, 35 La. Ann. 829; Eogg \. Link, 90 End. 346.) A sale of personal property under execution issued upon a judgment void as to the creditors of the defendant by reason of the actual fraud and collusion of all parties to the pro- ceeding passes no title to the purchasing execution creditor even if actual possession of the property was given him at the sheriff's sale. (Pineus v. Reynolds, 19 Mont. 564 — 49 Pae. Rep. 145.) But a judgment is not subject to impeachment on the ground of fraud by a party or privy to it and who partici- pated in the fraud. (Dow v. Blake, 148 111. 76 — 35 X. E. Rep. 761; Baugh v. Baugh, 37 Mich. 59; Atkinson v. Allen. 12 Vt. 619.) CONCLUSIVENESS OE ERRONEOUS JUDGMENT WHERE SALE MADE BEEORE REVERSAL OR VACATION. Sale to Stranger Without Notice. § 201. Pursuant to a universal rule of law a sale of real or personal property under execution upon a judgment at law or under a decree in equity, to a stranger to the proceed- ings who purchased in good faith and without notice, prior to"a reversal on appeal of such judgment or decree for error, is valid and the purchaser's title is unaffected by the subse- quent reversal. Hence it is a general rule that titles derived from sales consummated under the authority of irregular or erroneous judgments or decrees are not impaired or affected by a subsequent reversal where no supersedeas bond is given 184 TOID JUDICIAL AND EXECUTION" SALES. to stay all proceedings pending the appeal, and when the purchase is made by a third person who bought in good faith without notice and for value. (Hay v. Bennett. 153 111. 271 — 88 N. E. Eep. 645; Garrittee v. Pop- lein. 73 Md. 322 — 20 Atl. Eep. 1070; Waterworks v. Drinkhouse, 95 Cal. 220 — 30 Pae. Rep. 218; O'Brien v. Harrison. 59 Iowa, 6S6 — 12 X. W. Rep. 256: Withers v. Jacks. 79 Cal. 297 — 21 Pac. Rep. 824; Go wen v. Conlow. 51 Minn. 213 — 53 X. W. Eep. 365; Keene v. Sallenback, 15 Xeb. 200 — 18 X. W. Rep. 75; Scudder v. Sargent, 15 Xeb. 102 — 17 X. W. Eep. 369; Hukins v. Kapf, 14 S. W. Eep. 1016; Gibson v. Lyon, 115 U. S. 439 — 6 Sup. Ct. Eep. 129; Taylor v. Coats, 32 Xeb. 30 — 48 X. W. Eep. 964; Eibelin v. Peugh, 126 Ind. 216 — 25 X. E. Eep. 1103; Reynolds v. Harris, 14 Cal. 667 — 76 Am. Dec. 459; McCormick v. Mc- Clure, 6 Blackf. 466 — 39 Am. Dec. 441.) Under no considerations however can this rule be extended to sales under judgments affected with an inherent juris- dictional infirmity, for in such case the title to the property sbly sold falls to the ground with the judgment, be the purchaser a stranger or not, bona fide and in good faith or not. (McCracken v. Flanagan, 141 X. Y. 174 — 36 X. E. Rep. 10; Anderson v. Gray, 134 111. 550 — 25 X. E. Rep. 843; Paul v. Williams, 69 Tex. 261 — 7 S. W. Rep. 357; Mastin v. Gray, 19 Kan. 458 — 27 Am. Rep. 149; Great West Mining Co. v. Mining Co., 12 Colo. 46 — 20 Pac. Rep. 771; Rimes v. Williams, 25 S. E. Rep. 6S5.) In any event the validity of a bona fide sale to a stranger to the record under a judgment reversed for error or irregu- larity is dependent upon the fact that the sale is made before the reversal. (Bullard v. McArdle, 98 Cal. 355 — 33 Pac. Rep. 193; Frost v. Bank, 70 X. Y. 553 — 26 Am. Rep. 627.) But where there is a reversal for want of jurisdiction, the fact that third parties have purchased under the belief that the judgment is valid and binding between the parties, is a matter of inconsequential moment, for this will not defeat the right of showing the want of jurisdiction. i Ma>tin v. Gray, 19 Kan. 458 — 27 Am. Rep. 149: Ferguson v. Crawford, 70 X. Y. 253 — 26 Am. Rep. 5S9; Harshey v. Blackmar, 20 Iowa, 161 — 89 Am. Dec. 520.) Judgment Creditor as Purchaser. 02. The rule that a subsequent reversal of the judg- ment has no effect upon the title of a purchaser under execu- SALES SUBSEQUENT TO EXPIRATION OF JUDGMENT LIEN. 185 tion or decree lias no application to a case where the judg- ment creditor himself becomes the purchaser, nor a purchase made by the plaintiff's attorney of record in the cause. These purchase with notice of the infirmity and are not regarded as purchasers in good faith, being bound to know that the proceedings are illegal, and can not hold the property upon a reversal of the judgment. (Boos v. Morgan, 130 lnd. 305 — 30 N. E. Rep. 141; Gould v. Sternberg, 128 111. 510 — 21 N. E. Eep. 628; Shirk v. Thomas, 121 lnd. 147 — 22 N. E. Rep. 976; Barney v. Clein, 15 Wash. 581 — 46 Pac. Rep. 1037; Munson v. Plummer, 58 Iowa, 736 — 13 N. W. Rep. 71 ; (Jalpin v. Page, IS Wall. 350.) But in a case in Kentucky it was held that the reversal of a decree under which a sale of land was made does not vacate the sale if the court had jurisdiction to render the decree, and the title of the purchaser will not be impaired by the reversal notwithstanding this was the complainant in the ac- tion himself. As far as our researches have gone this case stands alone. (Gossom v. Donaldson, 18 B. Mon. 230 — 68 Am. Dec. 723.) SALES SUBSEQUENT TO EXPIRATION OF JUDG- MENT LIEN. Is as if no Lien of Judgment Had Ever Existed. § 203. In nearly every state where judgments are liens upon the real estate of the judgment debtor the statute pre- scribes a period beyond which they cease to have the force of liens. Execution sales made within the period during which the judgment has the force of a general lien, the title relates back to the inception of the lien, and rests upon the same. But a different question is presented where execu- tions have issued prior to the expiration of the time pre- scribed by law for the continuance of the lien, hut the actual sale thereunder did not take place until subsequent thereto. Beyond question the weight of authority is to the effect that the execution and levy can not extend the lien beyond the statutory period, being a distinctive creature of statute de- pendinc: exclusively upon legislation for its life and force, and the priority acquired by the judgment can not be pre- served unless the sale is made while the judgment lien exists. 186 VOID JUDICIAL AND EXECUTION SALES. Accordingly, the title derived at a sale made after the expiration of the judgment lien is in effect the same as if the judgment had never been a lien upon the land, and therefore a junior judgment being still a lien takes priority. The lien can not be prolonged by the court beyond the period fixed by law. (Shirk v. Thomas, 121 Ind. 147 — 22 N. E. Eep. 976; Wells v. Bower, 126 Ind. 115 — 25 N. E. Eep. 603; McAffee v. Eeynolds, 130 Ind. 33 — 28 N. E. Eep. 423; Albee v. Curtis. 77 Iowa, 644 — 52 N. W. Eep. 508; Spencer v. Haug, 45 Minn. 231 — 47 N. W. Eep. 794; Holliday v. Bruner, 153 Penn. St. 262 — 25 Atl. Eep. 1128; Shanklin v. Sims, 110 Ind. 143 — 11 N. E. Eep. 32; Bagley v. Ward, 37 Cal. 121 — 99 Am. Dee. 256; Isaac v. Swift, 10 Cal. 71 — 70 Am. Dec. 698; Petit v. Shepherd, 5 Paige, 493 — 28 Am. Dec. 437; Trapnall v. Eichardson, 13 Ark. 543 — 5S Am. Dec. 338; Harman v. May, 40 Ark. 146; Pasom v. Rhyme, 82 N. C. 149; Rupert v. Dantzler, 12 S. & M. 697; Dickinson v. Collins, 1 Swan, 516; Newell v. Dart, 28 Minn. 24S — 9 N. W. Rep. 732.) But if the statute expressly provides that in case a levy is made during the existence of the lien, a sale may be made within a specified time, in which case the judgment lien is prolonged until the expiration of such time. (Hastings v. Bryant, 115 111. 693 — 3 N. E. Eep. 507.) Execution Issued Before its Expiration Preserves Lien. § 204. In Missouri a doctrine is maintained diametrically at variance with the current of authority where an execution levy made before the expiration of the period wherein judg- ments have the force of general liens continues the lien until the execution of the writ notwithstanding the time had elapsed during which the judgment lien continued. Tin's ruling however is due to statutory provision to the elrect that the lien under such circumstances shall be extended by reason of the issuance and levy of the execution. (Huff v. Morton, 94 Mo. 405 — 7 S. W. Eep. 283 ; Bank v. Wells, 12 Mo. 361 — 51 Am. Dec. 163; Durrett v. Hulse, 67 Mo. 201; Wood v. Messerly, 46 Mo. 255.) EFFECT AND NATURE OF JUDGMENT LIEN. Creature of Statute and a General Lien. § 205. The lion of jndcrnont is pnrolv a creature of ptntnte and is in no way regarded as a special lien upon any specific EFFECT AND NATURE OF JUDGMENT LIEX. 187 property, but merely a general lien upon the lands of the judgment debtor, and is subject to all prior liens, whether legal or equitable. And this irrespective of any knowledge on the part of the judgment creditor as to the existence of such prior liens. (Leonard v. Broughton, 120 Ind. 536 — 22 N. E. Rep. 731; Savings Bank v. Hollenbeck. 29 Minn. 322 — 13 N. W. Rep. 145; Snyder v. Botkin, 37 W. Va. 355 — 16 S. E. Rep. 591 ; Fogg v. Blair, 133 U. S. 534 — 10 Sup. Ct. Rep. 338; Foltz v. Wirt, 103 Ind. 409 — 2 N. E. Rep. 950; Warren v. Hull, 123 Ind. 126 — 24 N. E. Rep. 96; School District v. Werner, 43 Iowa, 643; Rodgers v. Bowncr, 45 N. Y. 379.) While a judgment creditor whose judgment is a lien upon his debtor's lands has no specific lien nor any estate or in- terest in the same, yet he has nevertheless a power to make his general lien effectual by pursuing the course of law in this regard by enforcing his judgment by taking out execution and causing a levy to be made upon particular property and the property sold thereunder, in which case the lien becomes in effect specific. (Bruce v. Nicholson. 109 N. C. 202 — 13 S. E. Rop. 790; Hargreaves V. Meneken, 45 Neb. 668 — 63 N. W. Rep. 951; Mansfield v. Gregory, 11 Neb. 297 — 9 N. W. Rep. 87 ; Pearson v. Davis, 41 Neb. 608 — 59 N. W. Rep. SS5; Witmer's Appeal. 45 Pa, St. 455 — 84 Am. Dec. 505; Petit v. Shepherd, 5 Paige. 493 — 28 Am. Dec. 437; Ashton v. Slater, 19 Minn. 347; Logan v. Hall, 42 Cal. 645.) Upon what Property Lien Attaches. § 206. It is a general rule that the lien of judgment at- taches upon the actual and not upon the apparent interest of judgment debtor in the land. (Burke v. Johnson, 37 Kan. 337 — 15 Pac. Rep. 204.) Hence where judgments have the force of liens they reach not only the fee in real estate owned by the judgment defend- ant, but also an estate for life, a leasehold interest, a re- version or vested remainder, as well as any estate or interest in land which is liable to execution sale, or which may be reached by any process for the satisfaction of debts. Thus including equitable estates, whether of record or not. This is the general rule, though there is considerable conflict in the adjudicated cases in this regard, and some seemingly arbritrary exceptions, as the cases cited will show. 1S8 VOID JUDICIAL AXD EXECUTION SALES. (Kingsport v. Boynton, 120 Pa. St. 306 — 14 Atl. Rep. 135; McNeill v. Carter, 57 Ark. 579 — 22 S. W. Rep. 94; Gorham v. Farson, 119 111. 425 — 10 N. E. Eep. 1; Band v. Garner, 75 Iowa. 311 — 39 N. W. Rep. 515; Sullivan v. Leckie, 60 Iowa, 326 — 14 X. W. Rep. 355; Trusdell v. Lehman, 47 X. J. Eq. 21S — 20 Atl. Rep. 391; Sipley v. Wass, 47 X. J. Eq. 463 — 24 Atl. Rep. 233; Taylor v. Wynne, 57 Hun. 590 — 10 X. Y. Supp. 644; Julian v. Bell, 26 Ind. 220 — 89 Am. Dec. 460; Railway Co. v. Heim, 97 Ind. 525 ; Terrell v. Prestell, 68 Ind. 86 ; Lawrence v. Belger, 31 Ohio St. 175; Ballinger v. Drook, 101 Ind. 172; Mitchell v. Wood, 47 Miss. 237; Lippincott v. Wilson. 40 Iowa, 425; Van Camp v. Peeren- boom, 14 Wis. 65; Wason v. Lord, 40 N. Y. 477; Evans v. Feeny, 81 Ind. 539; Bank v. Bennett, 40 Iowa, 537; Eastman v. Settler, 13 Wis. 325; Jones v. Fletcher, 42 Ark. 422.) So it is held that where a judgment debtor buys land with his own money but has the title to the same placed in the name of a third person for the purpose of defrauding his creditors the lien attaches. (Slattery v. Jones, 96 Mo. 216 — 8 S. W. Rep. 554.) The lien of judgment against a grantor in a deed absolute on its face but in fact only a mortgage attaches to the land described in such deed, and may be sold under execution. (Macauley v. Smith, 132 X. Y. 524 — 30 X. E. Rep. 997; Marston v. Williams, 45 Minn. 116 — 47 X. W. Rep. 644.) But a judgment against one to whom the naked legal title to real estate is conveyed for the sole purpose of more con- veniently conveying the title to a purchaser upon the pay- ment of the purchase money does not become a lien upon the land. (Brebner v. Johnson, 84 Iowa, 23 — 50 X. W. Eep. 35.) Xor is the naked legal title of a trustee, or a momentary seizin such as that of conduit of title between husband and wife, or that which elapses between the receipt of a title deed and the giving of a mortgage to secure the whole or a part of the purchase money, affected by the judgment lien, not- withstanding the fact that real estate subsequently acquired is covered by the express language of the statute creating the lien of judgment. (Moore v. Thomas, 137 Ind. 218 — 36 X. E. Rep. 712: Roberts v. Robinson, 49 Neb. 717 — 68 N. W. Eep. 1035; Brebner v. Johnson. S4 Iowa, 23 — 50 X. W. Eep. 35; Main v. Bosworth. 77 Wis. 660 — 46 X. \V. Eep. 1043; Johnston v. Lemond, 109 X. C. 643 — 14 S. E. Rep. 86; EFFECT AND NATTJBE OF JUDGMENT LIEN. 189 Hays v. Roger, 102 Ind. 524 — 1 N. E. Rep. 3S6; Atkinson v. Hancock, 67 Iowa, 452 — 25 N. W. Rep. 701; Heberd v. Wines, 105 Ind. 242 — 4 N. E. Rep. 457; Wade v. Sewell, 5G Fed. Rep. 129; Duell v. Pattee, 70 N. W. Rep. 937; Ransom v. Sargent, 22 Kan. 516; Moyer v. Hinman, 13 N. Y. 180; Lounsbery v. Purdy, 18 N. Y. 515.) Where a purchaser in good faith for a full consideration, having no deed, enters into possession of the land, or where a mortgagee has taken his security with an erroneous descrip- tion, the lien of judgment has been postponed to such pur- chase or mortgage security. (Carver v. Lasalette, 57 Wis. 232 — 15 N. W. Rep. 162; Godeil v. Blumer, 41 Wis. 436; Floyd v. Harding, 28 Gratt. 401; Swarts v. btees, 2 Kan. 236.) It is held that where mortgages are mere liens to secure, and incidents to the debt, the interest of the mortgagee is not so far an interest in the land itself as to be affected by the lien of judgment. The same reasoning would be applicable to a vendor's lien. (Courtney v. Parker, 21 Neb. 582 — 33 N. W. Rep. 262; Scott v. Mewhirter, 49 Iowa, 487; Woodward v. Dean, 46 Iowa, 499; Hibbard v. Smith, 50 Cal. 511.) In Nebraska it is held that a judgment is not a lien upon the equitable interest of the debtor in land. (Bank v. Tighe, 49 Neb. 299 — 68 N. W. Rep. 490; Nessler v. Neher, 18 Neb. 649 — 26 N. W. Rep. 471.) And in Illinois it is held that the right of a judgment debtor to redeem his property from forced sale is a mere per- sonal right which can not be affected, impaired or transferred to another by the lien of any subsequent judgment against the debtor, the statutory right to redeem being held not subject to the judgment lien. (Blair v. Chamberlain. 39 111. 521 — 89 Am. Dec. 322; Watson v. Reissig, 24 111. 2S1 —76 Am. Dec. 746; Merry v. Bostwick, 13 111. 398 — 54 Am. Dec. 434.) But in several other states a contrary rule obtains and this interest is considered to be subject to the lien of judgments subsequently obtained against the debtor. (Kingsport v. Boynton, 120 Pa. St. 306 — 14 Atl. Rep. 135; Sullivan v. Leekie. 60 Iowa, 326 — 14 N. W. Rep. 355; Bridges v. Cooper, 39 S. W. Rep. 720; Julian v. Bell, 26 Ind. 220 — S9 Am. Dec. 460; Taylor v. Cornelius, 60 Pa. St. 187; Bank v. Morsell, 1 McArt. 155.) 190 VOID JUDICIAL AXD EXECUTION SALES. The lien will not give the judgment creditor the benefit of a secret equity of the defendant as against the purchaser in good faith of the legal title to the land. (Well? v. Benton. 10S Ind. 590 — 8 X. E. Eep. 444; Gordon v. Eixy, 7S Va. 694.) "Where docketing is a requirement of statute the judgment becomes a lien only as against a defendant whose name is placed in the docket, and as to whom it is or can be indexed, but not against anyone else. (Hughes v. Lacock, 63 Miss. 112.) When the judgment lien has attached to the land it is held that it can not be defeated or avoided by subsequently oc- cupying it as a homestead by the judgment defendant. (Bunn v. Lindsay, 95 Mo. 250 — 7 S. W. Eep. 743.) "When the Lien Attaches. § 207. In proceedings in attachment the judgment lien dates from the moment when the attachment was levied in so far as the property seized is concerned. The attachment is constructive notice from the date thereof to all subsequent purchasers acquiring interests in the property seized from the attachment defendant. The judgment is a continuation of the lien of attachment, the latter being merged in the former. (McClellan v. Solomon, 23 Fla. 437 — 2 So. Eep. 825; Coekey v. Milne, 1G Md. 200.) And the same rule applies in proceedings for the foreclos- ure of mortgages and other specific liens on property, in which case the judgment does not create but merely enforces the lien already existing. (Huntington v. Meyer, 92 Wis. 557 — 66 N. W. Eep. 500.) Under the codes of some of the states the judgment lien attaches upon the defendant's lands from the beginning of the term of court at which the judgment was rendered, and thus is superior to any conveyance or incumbrance made by the debtor subsequent to the beginning of the term, notwith- ding the date of the conveyance or incumbrance is an- terior to that of the judgment. (Tlockman v. Hoekman, 93 Va. 855 — 25 S. E. Eep. 534; Ferrell v. Hales, 119 X. C. 199 — 25 S. E. Eep. 821; Bank v. Distilling Co., 41 EFFECT AND NATURE OF JUDGMENT LIEX. 191 W. Va. 530 23 S. E. Rep. 792; Withers v. Caster, 4 Gratt. 107 — 50 Am. Dec. 78; Follett v. Hall. 16 Ohio, 111 — 47 Am. Dec. 3§5; Skipwith v. Cunningham, 8 Leigh, 271 -31 Am. Dec. 642; Farley v. Lea, 4 Dev. & Bat. 169 — 32 Am. Dec. 630; Yates v. Robertson, ;->u Va. 475; Brocken- brough v. Brockenbrough, 31 Gratt. 580.) By reason of the rule that the law knows no parts of days, the lien of the judgment or decree begins with the first moment of the day on which it attaches, and therefore has priority over any conveyance or incumbrance recorded on the same day. (Hockman v. Hockman, 93 Va. 855-25 S. E. Eep. 534; Skipworth v. Cunningham, 3 Leigh, 271-31 Am. Dec. 642; Horsley v. Garth. 2 Gratt. 474 — 44 Am. Dec. 393: Withers v. Carter. 4 Gratt. 407 — 50 Am. Dec. 78.) The time when judgments become liens is not the same in everv state. Thus in some states they become liens from the date of their rendition, while in others the lien com- mences from the date on which it is docketed. In some it begins when the judgment is recorded and indexed, and in some from the date of its actual entry, while in others it dates from the time when the judgment is entered and pronounced. The particular statute must be consulted in each case to de- termine this question. The time fixed by statute for the commencement of the lien of judgment is unalterable and can not be changed or modified by the recitals in a sheriff's deed, nor can the lien be prolonged by the court beyond the period established by law. (Owen v. Baker, 101 Mo. 407-14 S. W. Ee P . 175; McAffee v. Rey- nolds, 130 Ind. 33 — 28 N. E. Eep. 423.) Lien Attaches to Lands Conveyed in Fraud of Creditors. § 208. The judgment lien attaches to the land of the judgment debtor fraudulently conveyed by him to another, and may be sold under execution the same as if no change in the title had occurred. The title thus transferred under execution sale is the legal title itself, and not merely a right to control it. 'Against tin's title the fraudulent transfer is in effect as if it had never been made at all. The same rule obtains in regard to mortgages, liens, judgments and execu- 192 VOID JUDICIAL AND EXECUTION" SALES. tions, conceived by a fraudulent intent and procured for the purpose of hindering, delaying or defrauding creditors. (Henderson v. Henderson, 133 Pa. St. 399 — 19 Atl. Rep. 424; Slattery v. Jones, 96 Mo. 216 — 8 S. W. Rep. 554; Jackson v. Holbrook, 36 Minn. 494 — 32 N. W. Rep. 852 ; Fowler v. Frebein, 16 Ohio St. 493 — 91 Am. Dec. 95; Staples v. Bradley, 23 Conn. 167 — 60 Am. Dec. 630; Duvall V. Waters, 1 Bland, 569 — 18 Am. Dec. 350; Bank v. Risley, 19 N. Y. 369 — 75 Am. Dec. 347; Dunham v. Cox, 10 N. J. Eq. 437 — 64 Am. Dec. 460; Foley v. Bitter, 34 Md. 646; Eastman v. Schettler, 13 Wis. 324; Jacobey's Appeal, 67 Pa. St. 434.) But where there are several judgment creditors, the cred- itor who first proceeds in equity to reach property fraud- ulently transferred by the judgment debtor obtains a right to priority to which the claims of other judgment creditors, both prior and subsequent, must yield precedence, notwith- standing that each of the latter might have availed himself of his remedy in equity the same as the former. (Boyle v. Maroney, 73 Iowa, 70 — 35 N. W. Rep. 145: Davison v. Burke, 143 111. 139 — 32 N. E. Rep. 514; Howland v. Knox. 59 Iowa, 46—12 N. W. Rep. 777; Rappleye v. Bank, 93 111. 396; In re Estes, 6 Sawyer, 459 — 3 Fed. Rep. 134; Young v. Clapp, 40 111. App. 312; Bridgeman v. McKissick, 15 Iowa, 260; Lyon v. Robbins, 46 111. 276.) Though in such case only the interest of the fraudulent grantee is sold, and all liens prior to such conveyance and prior to the judgment sought to be satisfied out of the prop- erty are not affected by it and the holder thereof may follow the land no matter in whose hands it may come. (Fidler v. John, 178 Pa. St. 112 — 35 Atl. Rep. 976.) Chapter III. Order or License of Sale by Administrator, Executor or Guardian, and How Procured. ANALYSIS. Section 209. Lands of Decedents in- General — Are Assets to Liquidate Debts. 210. Petition for Probate Sale Must be Presented by Compe- tent Petitioner — Incompetency a Jurisdictional In- firmity. 211. Sale by Fiduciary Presupposes their Legal Existence as Such. 212. Part only of Administrators or Executors Licensed to Sell. 213. False Representations as to Guardianship or Release. 214. Lands in Another State. 215. Petitions for Orders or Licenses for the Sale of Lands of Decedents, Infants and Incompetents — -Its Initial Step or Foundation of Order or License. 216. Substantial Compliance with Requirements of Stat- ute Essential. 217. Sale Can only be had upon Allegations of Statutory Causes. 218. Essential Facts Defectively Stated. 219. Administration Proceedings Indivisible though Sale Independent. 220. Petition Must Show the Existence of Debts. 221. Averment of no Personal Property Essential. 222. To Pay Expenses of Administration. 223. Account of Personal Estate by Fiduciary. 224. Claim Barred by Statute of Limitations. 225. Verification of the Petition. 226. 'Interested Parties Named in the Petition. 227. Property to be Sold Should be Described. 228. Statutes Providing Sale can not be Avoided Certain Things Appearing. 229. Policy of the Law regarding Probate Sales. 230 Jurisdiction Dependent on Sufficient Averment, of Facts — Averment of Sufficient Facts and not their Truth Es- sential. 231. Falsity of Facts can not be Shown Collaterally. 13 194 VOID JUDICIAL AND EXECUTION SALES. Section 232. Notice of the Pendency of the Petition for an Order or License of Sale not Considered an Indispensable Re- quirement — Two Distinct Views as to Probate Sales. 233. — — Notice not Jurisdictional where Proceedings are in rem. 234. Notice not Essential where Guardian's Sales are in rem. 235. Notice of the Pendency of the Application for an Order or License of Sale Considered a Jurisdictional Require ment — If Sale by Administrator is Considered Adver- sary Notice Essential. 236. Notice in Sales by Guardians. 237. Statutes Must be Strictly Pursued. 238. -Acceptance and Waiver of Service of Notice. 239. To be Operative the Notice Must be Given in the Manner as directed by Statute — General Rule as to Defective Service and Non-service. 240. Day Unauthorized or not Sufficiently Remote. 241. If Description is Given it Must be Correct. 242. Notice given in Unauthorized Manner. 243. Notice for the Prescribed Length of Time Must be Given — Provision of Statute as to Length of Notice is Im- perative. 244. The Order or License of Sale and Its Conclusiveness as an Adjudication — Order Must not Go Beyond the Pe- tition. 245. Only the Land Embraced in the Order Can be Sold. 246. Order to Sell upon Petition to Mortgage. 247. Order of Sale to pay Debts Barred by Statute of Limitations. 24S. Description of Property in the Order. 249. ■ Statute Authorizing a Sale Does not Include Ex- change or Mortgage. 250. Sale of a Part Only or of Interest Subject to En- cumbrance. 251. Order of Sale is Conclusive if Cnurt had Jurisdiction. 252. Healing Statutes and Their Effect — General Provisions of these Statutes. 253. Failure to Give the Sale Bond Required. 254. Failure to Take the Oath Prescribed. 255. Failure to Give the Notice. 256. The Sale Must be Confirmed. 257. Land Must be Purchased in Good Faith. LANDS OF DECEDENT IN GENEKAL.. Are Assets to Liquidate Debts. § 209. Under the jurisprudence of this country for many years back the lands of a deceased person constitute assets PETITION FOB PROBATE SALE, HOW PRESENTED. 195 for the liquidation of his debts. While this is true, yet, the administrator, and unless by express directions of the will, the executor, being- vested merely with the goods and effects of the decedent, has no power to dispose of the lands of the estate without authority from the court, by way of an order directing its sale. In most of the states the fiduciary, ad- ministrator or executor, ordinarily makes the application for an order or decree permitting him to sell, either for the pay- ment of debts, to raise money for a family allowance, or in some states, for the support of the children of the decedent, or for the purpose of a distribution of the estate, when the local law allows a sale for this purpose. The application usually is more or less summary and the records and proceedings of the courts having probate juris- diction are often uncertain and irregular, furnishing a fruit- ful source of litigation. In South Carolina the probate judge himself and not the administrator or executor sells, while in Illinois, Virginia, West Virginia, Kentucky and Maryland the only means by which a decree or order can be obtained to sell descended or devised lands for the payment of debts of the decedent or expenses of administration is by way of a suit in equity or allied proceeding according to the requirements of statute, which may generally be inaugurated by any creditor, heir, distributee, devisee or legatee as well as by the fiduciary. The jurisdiction in this regard beino- a statutory extension of the power of the chancellor in England in cases where the will of the decedent expressly charged his estate with his debts, and accordingly converted his lands into equitable as=ets for the payment of his obligations. The proceedings of sale thus being practically in chancery a perfect title is aimed to be given thereby. In order to bind them, all parties having liens, must be made parties to the bill, and if not made parties they are not barred by the decree. PETITION FOR PEOBATE SALE MUST BE PRE- SENTED BY COMPETENT PETITIONER. Incompetency of Fiduciary a Jurisdictional Infirmity. § 210. As a general rule probate sales are wholly without foundation unless made in pursuance of an order of sale from 196 VOID JUDICIAL AND EXECUTION SALES. a competent court. This is the rule except in cases of sales by executors under wills providing for sales otherwise than under the supervision of the court, or in cases where the statute expressly provides for sales by administrators or executors without the order of the court to that effect. The order or license for the sale of lands in sales by ad- ministrators occupies a position in such proceedings analo- gous to a judgment in a sale under execution upon a simple money judgment in a suit at common law, or a decree in chancery. As no judgment or decree can be pro- nounced or judgment rendered without a written statement of a cause of action, so the order in probate sales must, as a rule, be supported by a petition embracing the necessary averments of essential pre-existing facts warranting its issu- ance. It is apparent that such order is more analogous to a judgment in an original action than to an interlocutory order in an existing proceeding wherein jurisdiction has already vested and which is not a final disposition of the proceeding.. Accordingly, as an essential pre-requisite to the procure- ment of an order of sale of a decedent's lands in probate there must be filed a petition therefor, the same as in any ordinary action, and notice of its pendency and presentation must be issued and served in the manner provided by law. The proceedings thus conducted resulting in the making of the order are completely adversary pursuant to the decided preponderance of authority, and being thus, it is manifest that any jurisdictional defect in them will be fatal to the title of the purchaser acquired thereunder, the fatality being equally as grave as if the infirmity existed in the original grant of administration. Deficiencies for want of facts sufficient to entitle the plain- tiff to the relief demanded in complaints in actions at lav; or in petitions in suits in equity must be pointed out before the rendition of the judgment, and if attention is not so drawn to such objections, judgment may be entered notwithstanding the imperfection which will not lie void despite the deficien- cies, though erroneous and subject to reversal on appeal. The same reasoning applies to a case where the complainant has no capacity to maintain the suit which he has instituted, if objections to his incompetency are not urged judgment PETITION FOR PROBATE SALE, HOW PRESENTED. 197 is liable to be pronounced which, while erroneous, is never- theless not a nullity. But this reasoning', while true as to actions at law and suits in equity, has no application to proceedings in adminis- tration, for, if the petitioner in a petition for the sale of lands of a decedent or incompetent is a person not authorized to make such application, the defect is not classed in the catalogue of irregularities, but the infirmity is of a graver character for it is at once jurisdictional. Accordingly, if an incompetent or unauthorized person makes a presentation of a petition for an order to sell, the jurisdiction of the court can not be invoke,] thereby, and the order can not be law- fully made upon it, and if made is coram non judice and void, and therefore incapable of furnishing a foundation to support a sale. Hence, if it appears from the whole record in the proceedings that such petitioner, whether adminis- trator or guardian, has not been legally appointed as such, or if the petition is made by some one else not by law author- ized, and the authority does not appear from the record, the proceedings and sale are wholly void and subject to collateral impeachment. (Staples v. Connor, 79 Cal. 14 — 21 Pac. Rep. 3S0; Shipman v. Butter- field, 47 Mich. 4S7 — 11 N. W. Rep. 283; Pryor v. Downey. 50 Cal. 388 — 19 Am. Rep. 656; Long v. Burnett, 13 Iowa, 28 — 81 Am. Dee. 420; Withers v. Patterson, 27 Tex. 491 — 86 Am. Dee. 643; Frederick v. Pacquette, 19 Wis. 541 ; Allen v. Kellam, 69 Ala. 442 ; Chase v. Ross, 36 Wis. 267; Washington v. McCaughan, 34 Miss. 304; Hyatt v. James, 8 Bush, 9; Miller v. Miller, 10 Tex. 319; Smith v. Rice, 11 Mass. 507; Sumner v. Parker, 7 Mass 79; Unknown Heirs v. Baker, 23 111. 4^4; Sitzman v. Pacquette, 13 Wis. 291.) Sale by Fiduciary Presupposes their Legal Existence as Such. § 211. As a matter of fact, a sale by a guardian or admin- istrator presupposes the legal existence of such fiduciary, and it follows as an inevitable consequence that if there was no guardian or no administrator, then there was no sale. Subse- quent confirmation of the sale thus made, by the court, can infuse no validity to such a transaction, because there was nothing for the confirming order to act upon. Nor does the order of confirmation adjudicate the fact that the pretended li luciary who made the sale was such in fact. No number 198 YOID JUDICIAL AND EXECUTION SALES. of confirmations could cure such a defect because it is juris- dictional. (Burrell v. Railway Co., 43 Minn. 363 — 45 N. W. Rep. S49; Dawson V. Helmes, 30 Minn. 107 — 14 N. W. Rep. 462; Coon v. Cook. 6 Ind. 268.) Therefore, sales of real estate by administrators are void when the appointment of the administrator is void, or where the fiduciary was appointed under a void judgment. (Stewart v. Golden. 98 Ga. 479 — 25 S. E. Rep. 528; Callaghan v. Fluker, 49 La. Ann. 237 — 21 So. Rep. 253; Smith v. Wilson, 25 S. E. Rep. 528.) So in Arkansas it was held that a sale upon petition and order by a natural guardian having the care and custody of the person of a minor, but not the control of his estate, and who was not appointed as statutory guardian, is void be- cause unauthorized. (Guynn v. MeCauley, 32 Ark. 97.) And in Michigan it is held that the appointment of a person as administrator who does not appear by the aver- ments of the petition to be one competent to be such under the statute, is void for jurisdictional reasons, and a sale of lands made under an order of the court by such unauthorized person thus appointed is void and open to successful col- lateral impeachment. (Haug v. Primeau, 98 Mich. 91 — 57 N. W. Rep. 25; Shipman v. Butterfield, 47 Mich. 4S7 — 11 N. W. Rep. 283.) So in a late case in Louisiana a similar ruling was made where lands were sold by the consent of a dative tutor who was a stranger wrongfully appointed instead of the father. (James v. Meyer, 41 La. Ann. 1100 — 7 So. Rep. 618.) Part only of Administrators or Executors Licensed to Sell. § 212. Where there are two or more acting executors or administrators, a petition for a license to sell lands made by but a part of them can not be void upon principle, but at most irregular. Such officers obtain their power from the court under whose directions they act, and a sale under an order to one when reported and confirmed, will pass the title, as against a collateral attack, even though the other PETITION FOR PROBATE SALE, HOW PRESENTED. 199 fiduciaries do not all join in the petition or are not all men- tioned in the license. (Melms v. Pfister, 59 Wis. 1SG — 18 N. W. Rep. 255; Corley v. Anderson. 5 Tex. Civ. App. 313-23 S. W. Rep. 839; Downing v. Ruger, 21 Wend. 178 — 34 Am. Dec. 223; Fitch v. Whitbeck. 2 Barb. Ch. 161; Gregory v. McPherson, 13 Cal. 578; De Bardenlaben v. Stoudenniire, 48 Ala. 043.) But a diametrically opposite ruling was made in Massa- chusetts where an order obtained upon a petition by one administrator when there were several was held void. (Hanum v. Day, 105 Mass. 33.) False Representations as to Guardianship or Release. § 213. It is indispensible that when a guardian or ad- ministrator represents himself as such that the relation actually exists, for an order of sale is made without juris- diction if the relation does not exist. Hence, where one falsely represents himself as guardian in the presentation of a petition to the orphans' court, the order issued to him thereon and all subsequent proceedings are void for want of jurisdiction and may be impeached in a collateral proceed- ing. The same principle obtains in case where the sale is inaugurated and made after the guardian has been released as such. (Grier's Appeal, 101 Pa. St. 412; Phelps v. Buck, 40 Ark. 219.) So in Georgia the statute provides that letters of guardian- ship must be granted at a regular term of court, but the appointment was made at chambers in vacation, and such guardian sold lands under the license of the court, but the sale was held void because the alleged appointment was void. The purchaser acquired no title, notwithstanding he bought in good faith and without notice. (Dooley v. BoH, 87 Ga. 74-13 S. E. Rep. 284; Bell v. Love, 72 Ga. 125.) Lands in Another State. § 214. The authority of a guardian or administrator does not extend beyond the territorial limits of the state in which he was appointed, and it follows as a necessary consequence that no authority can be conferred upon him by the court which appointed him to sell lands lying in another juris- 200 TOID JUDICIAL AXD EXECUTION SALES. diction. Such order would be void for want of jurisdiction of the subject-matter, the courts of one state having no juris- diction to order the sale of lands lying within the territorial limits of another state. (McAnulty v. McClay, 16 Neb, 418 — 20 N. W. Rep. 266; McNeil v. Society, 66 Cal. 105 — 4 Pac. Rep. 1096.) PETITIONS FOR ORDERS OR LICENSES FOR SALE OF LANDS OF DECEDENTS, INFANTS AND INCOMPETENTS. Is Initial Step or Foundation of Order or License. § 215. In proceedings for the sale of lands of a decedent, infant or incompetent, whether such proceedings are consid- ered in rem or in personam, the petition occupies a position analogous to that of a complaint or declaration in an action at law or bill in chancery. Each should state sufficient to war- rant the court to grant the demanded relief, whether it be a judgment upon a money demand, equitable relief in a suit in chancery, or an order of the court of probate jurisdiction to sell property. It is elementary and fundamental that a judg- ment at law or decree in equity must be supported by a written statement of a cause of action. This principle ap- plies with equal force to orders or licenses of sale in pro- ceedings in probate, for the petition must be filed and must embrace substance sufficient to disclose the necessity for a sale of property of the estate, infant or incompetent, to warrant the existence of the order or license. Manifestly, in the absence of special curative statutes, an order from the court directing the sale of lands not founded upon a petition previously filed therefor is granted without juris- diction and is therefore coram nan judlcc and void, upon plain elementary principles. The title of one who purchased lands of a decedent at an administrator's sale is founded upon two judgments, the one and the first in order being the order granting letters testa- mentary or administration, while the other is the order or license of sale, the validity of each being essential to sustain th< title. Jurisdiction to order the sale depends upon the general power of the court to exercise such jurisdiction, and PETITIONS FOR ORDERS OR LICENSES FOR SALE OF LANDS. 201 upon a proper grant of administration conferring jurisdic- tion thereby to deal with the particular property. (Culver v. Hardenbaugh, 37 Minn. 225 — 33 N. W. Rep. 792; Paul v. Willis. 69 Tex. 261 — 7 S. W. Rep. 357; Mosseou's Will, 30 Minn. 202 — 14 N. W. Rep. 887; Long v. Burnett, 13 Iowa, 2S — SI Am. Dec. 420; Bloom v. Burdiek. 1 Hill, 130 — 37 Am. Dec. 299.) It is thus that where letters of administration on the estate of a living person were granted, the appointment being void because the owner of the estate was alive, the subsequent pro- ceedings of sale, no matter how regular, are unconditionally void, and may be successfully impeached in a collateral attack. (Scott v. McNeal, 154 U. S. 34 — 14 Sup. Ct. Rep. 1108; Melia ^. Simmons, 45 Wis. 334 — 30 Am. Rep. 746; Springer v. Shavender, 116 N. C. 12 — 21 S. E. Rep. 45S.) The proceeding by the personal representative for the sale of lands of the decedent, notwithstanding it is in the course of administration, is nevertheless distinct and independent, analogous to an action at law or suit in equity, of which the petition is the initial step and the order or license of sale ultimately issued pursuant to its prayer is the final judg- ment. (Lyons v. Hamner, 84 Ala. 197 — 4 So. Rep. 26; Dorrance v. 4 Rayns- ford, 67 Conn. 1 — 34 Atl. Rep. 706; Richardson v. Butler, S2 Cal. 174 — 23 Pac. Rep. 9 ; Goodwin v. Sims, 86 Ala. 102 — 5 So. Rep. 5S7 ; Tracy v. Roberts, 88 Me. 310 — 34 Atl. Rep. 68; Cotton v. Holloway. 96 Ala. 544 — 12 So. Rep. 172; Danby v. Daws, 81 Me. 30 — 16 Atl. Rep. 255; Wyatt v. Rombo, 29 Ala. 510 — 68 Am. Dec. 89; Picard v. Montross, 17 So. Rep. 375; Robertson v. Bradford, 70 Ala. 385; Teverbaugh v. Hawkins, 82 Mo. ISO.) Substantial Compliance with Requirements of Statute Es- sential. § 216. Substantial compliance witli the requirements of the statute as to matters which shall be embodied in the pe- tition is essential in order to confer jurisdiction upon the probate court to order the sale of lands, for jurisdiction of the court over the estates of decedents and incompetents does not flow from its general jurisdiction over the administra- tion of such estates, but rather from the petition which is presented for the sale. Accordingly, the pot it inn must em- brace the grounds designated by statute as the contingencies 202 VOID JUDICIAL AND EXECUTION SALES. under which the lands of a decedent or incompetent may be sold under the order of the court. Judicial authority relative to the disposition of such estates is restricted by the limita- tions of statute, for the court of probate jurisdiction in theory of law has no general authority to dispose of the lands of an estate in process of administration, but the power of disposition is limited to certain contingencies, and the ex- istence of these contingencies designated by statute are absolutely essential to invest the court with power to grant the order of sale, and no intendments will be extended to support jurisdiction from the mere exercise thereof. It is manifest then that a sale of land under the order of the probate court based upon a petition charging a purpose not designated or recognized by statute is made without juris- diction and must be a mere nullity, because the petition fails to allege facts sufficient to confer jurisdiction to order the land sold. (Tracy v. Roberts, 88 Me. 310 — 34 Atl. Rep. 68; Hodge v. Fabin. 31 S. C. 212 — 9 S. E. Rep. 820; Goodwin v. Sims, 86 Ala. 102 — 5 So. Rep. 587; Richardson v. Butler, 82 Cal. 174 — 23 Pac. Rep. 9; Danby v. Daws, 81 Me. 30 — 16 Atl. Rep. 255; In re Byrne, 112 Cal. 176 — 44 Pac. Rep. 467; Long v. Long, 142 N. Y. 545 — 37 N. E. Rep. 486; Withers v. Patterson, 27 Tex. 491 — 86 Am. Dec. 643; Blackburn v. Bolan. 88 Mo. SO; Bompart v. Lucas, 21 Mo. 598; Newcomb v. Smith, 5 Ohio, 447; Strouse v. Brennan, 41 Mo. 289; Farar v. Dean. 24 Mo. 16.) Thus in Mississippi where probate courts are regarded as courts of general jurisdiction as to matters of probate, the supreme court of that state in a late case said: " But it is uniformly held that the jurisdiction of the court over realty for the purpose of subjecting it to the payment of debts of the deceased was special and limited, and that the facts warranting its exercise must affirmatively appear of record." (Ames v. Williams. 72 Miss. 760 — 17 So. Rep. 762.) Sale Can Only be Had upon Allegations of Statutory Causes. § 217. The foundation of jurisdiction in probate sale- is the petition for the order, and the facts whereon the law authorizes a sale are the elements of jurisdiction. Hence the petition must contain enough of these facts to satisfy the requirements of the statute, and to invest the court with the power lo make the required order of sale. The sale being PETITIONS FOE ORDEKS OR LICENSES FOR SALE OF LANDS. 203 'authorized only in case of the existence of one or more of the statutory causes, the essential elementary principle upon which jurisdiction is founded is the existence of the facts necessary to thus authorize the court to act, and that the requisite initiatory steps have been taken pursuant to law, which requires that the petition set out one or more of these contingencies designated by statute under which the prop- erty may be sold. (Schlee v. Darrow, 65 Mich. 362 — 32 N. W. Rep. 717; Needham v. Salt Lake City, 7 Utah, 319 — 26 Pae. Rep. 920; Wilson v. Holt, 83 Ala. 528 — 3 So. Rep. 321; Kertchem v. George, 7S Cal. 597 — 21 Pac. Eep. 372; Ames v. Williams. 72 Miss. 760 — 17 So. Rep. 762.) So it is held that the petition should disclose the fact that the proceedings are instituted in the proper county as re- quired by law. (Spencer v. Jennings, 114 Pa, St. 618 — 8 Atl. Rep. 2; Lloyd v. Malone, 23 111. 43 — 74 Am. Dec. 179.) Essential Facts Defectively Stated. § 218. Conflicting views are maintained as to what inter- pretation should be placed upon statutes providing for the disposition of the estates of decedents and incompetents, though it is evident from the consensus of all judicial enunci- ations that a general policy prevails to environ this power to sell with judicious restrictions and limitations, making the jurisdiction to sell dependent upon the conditions and con- tingencies prescribed by statute, and in conformity with the mode and manner of procedure laid down by law for the exercise of this jurisdiction. On the one hand the adjudica- tions establish a rule of interpretation to the effect that when- ever there has been a substantial compliance with the require- ments of statute, according to a liberal construction validity will be imparted to the proceedings of sale: (Bichardson v. Butler, 82 Cal. 174 — 23 Pac. Pop. 9; Cotton v. Hollo- way, 96 Ala. 544 — 12 So. Rep. 172; Burris v. Adams, 96 Cal. 664 — 31 Pae. Rep. 565; Pryor v. Downey, 50 Cal. 388 — 19 Am. Hep. 656; Stuart v. Allen. 16 Cal. 473 — 76 Am. Dec 551; Wright v. Edwards, 10 <>iv. 298; Read v. Howe, 553; Stiver's Appeal, 56 Pa. St. '.» : Montgomery v. Johnson, 31 Ark. 74.) while on the other hand the necessity for a strict compliance with the terms of the statute is adhered to with uniform tenacity in order to support the sale. 204 VOID JUDICIAL AND EXECUTION SALES. (Long v. Long, 142 N. Y. 545 — 37 N". E. Rep. 4S6; Fell v. Young, 63 111. 106; Gelstrop v. Moore, 26 Miss. 206 — 59 Am. Dec. 254; Martin v. Williamson, 42 Miss. 210.) If sufficient averments are contained in the petition to require the court to act upon it, it is immaterial that such facts are defectively stated, jurisdiction is nevertheless thereby conferred sufficiently to render all subsequent pro- ceedings invulnerable upon a collateral assault upon that ground, just as in any other suit or action. (McCullough v. Estes, 20 Ore. 349 — 25 Pac. Rep. 724; Bryan v. Bauder, 23 Kan. 95; Rowe v. Palmer, 29 Kan. 337; Moffitt v. Moffitt, 69 111. 641; Hobson v. Ewan, 62 111. 146.) Manifestly, when a sufficient cause for an order of sale is united with an alleged cause not recognized as such by the statute, the jurisdiction of the court is nevertheless invoked and the proceedings are not void. (Walker v. Goldsmith, 14 Ore. 125 — 12 Pac. Rep. 537.) Administration Proceedings Indivisible though Sale Inde- pendent. § 219. The administration of an estate is in reality but one indivisible judicial proceeding from the initial step of the grant of administration to the final discharge, whether the proceedings are considered as in rem or in personam, yet, the authorities are united on the proposition that the application to sell is a distinct and independent proceeding to the extent that jurisdiction to order the sale must exist, aside from the general jurisdiction of the proceedings of administration invoked by the proper original grant of letters. (Culver v. Hardenbaugh. 37 Minn. 225 — 33 X. W. Rep. 792; Paul v. Willis, 69 Tex. 261—7 S. W. Rep. 357; Johns v. Tiers, 114 Pa. St. 611— 7 Atl. Rep. 923; Chamberlain v. Chamberlain, 20 Atl. Rep. 1085; Long v. Burnett. 13 Iowa, 2s — 81 Am. Dec. 420; Frazier v. Steenrod, 7 Iowa. 339 — 71 Am. Dec. 4 17.) Hence, when probate proceedings for the sale of lands of an estate are alluded to as 1 icing distinct and independent, courts simply mean that to the validity thereof it is essential that the application should be made in substantial compli- ance with the provisions of the statute in this regard, and PETITIONS FOR ORDERS OR LICENSES FOR SALE OF LANDS. 205 when not so made there is a lack of power in the court to order the fiduciary to sell the land involved. (Burns v. Kennedy, 108 Cal. 331 — 41 Pac. Rep. 458.) Petition Must Show the Existence of Debts. § 2°0 Even in states where a liberal rule of construction obtains as to proceedings of sale it is held that an averment in a petition of the existence of debts against the estate in a certain or ascertained amount is an essential and juris- dictional allegation to grant an order of sale, without sucl an averment the sale is fatally defective and subject to suc- cessful collateral impeachment. It is held that the record should show affirmatively that the facts exist and were pre- sented to the court which will bring the application within the provisions of the statute conferring jurisdiction to order the sale. Such averment is therefore held to be mdispen- CO nip 'Cotton v. Holloway, 96 Ala. 544-12 So. Rep. 172; Speneer y. Jen- nings, 114 Pa. St. 618-8 Atl. Rep. 2; Appeal of Hilton, 9 Atl. Rep. 434; Haynes v. Meeka, 20 Cal. 288.) Averment of no Personal Property Essential. § 221. Pursuant to a well-settled policy of the law, the estates of heirs and incompetents are zealously guarded against useless and squanderous dissipation. In harmony with this laudable policy, whenever the necessity may arise to provide funds, there must first be a disposition of the personal property to furnish such pecuniary relief before resort to the real estate can be had. The provision of statute requiring an averment in the petition to the effect that there is no personal property, or that there is an insufficiency ol personal assets to pay the obligations of the decedent, and that the sale of the land is necessary to pay such debts, are imperative and mandatory, being essentially jurisdictional facts, without which the court has no power to order the sale of the land. (Kingsland v. Murray, 133 N. Y. 170-30 N. E Rep. 845^ Smith v. BranJn, 99 Ala. 445-12 So. Rep. W: Macgill v. Hyatt, 80 Md. 253- 30Atl.Rep.710;Kentv.Mansel, L01 Ala. 334 -14 So Rep. ^ J oun | v. Wittenmyre, 123 DL 203- 14 V E. Rep. 869; Stuart v. Allen, 10 Cal. 473-76 Am. Dec. 551; Gregory v. Tabor. 19 Cal. 397.) 206 VOID JUDICIAL AND EXECUTION SALES. But where the statute authorized the probate court to order the sale of lands of a decedent after the personal property has been exhausted, a sale made under an order granted upon a petition containing an averment in this regard that the per- sonal estate was wholly insufficient to pay the debts was con- sidered void. (Hays v. McNealy, 16 Fla. 409; Parchman v. Charlton, 1 Coldw. 381.) And where a sale in administration was made under an order the petition for which was entirely silent as to the per- sonal estate and it was not brought to the attention of the court, the sale was decided void collaterally upon juris- dictional grounds. (Sloan v. Sloan, 25 Fla. 53 — 5 So. Rep. 603.) So under a statute authorizing a sale to pay debts when the personal estate is insufficient an order of sale was held void which was made upon a petition alleging that the pur- pose of the sale was to settle up the business of the estate and pay certain debts and demands due and owing by the estate. (Needham v. Salt Lake City, 7 Utah, 319 — 26 Pac. Rep. 920.) To Pay Expenses of Administration. § 222. A sale for an unauthorized purpose as shown by the averments contained in the petition is void because the de- fect is not only fatal but is affirmatively apparent upon the face of the record ; as for instance, a sale for the purpose merely of paying the expenses of administration, when the statute authorizes no sale for such purpose. (Mays v. Rogers, 52 Ark. 425 — 12 S. W. Rep. 579; Duncan v. Veal, 49 Tex. 603; Farrar v. Dean, 24 Mo. 16; Fitch v. Whitbeck. 2 Barb. Ch. 161.) But under a statute providing that the lands of a decedent may be sold to pay liabilities of the estate if the personal estate is insufficient, and which makes the expenses of ad- ministration the first in order of the liabilities to be dis- charged, a decedent's lands may be sold to pay the expenses of administration, and an averment of such expenses is mani- t"-lv sufficient to invoke the jurisdiction of the court to order the sale. (Falley v. Gribling, 128 Ind. 110 — 26 N. E. Rep. 794; Dunning v. Driver, 25 Ind. 269.) PETITIONS FOR ORDERS OR LICENSES FOR SALE OF LANDS. 207 Account of Personal Estate by Fiduciary. § 223. The determination as to the necessity for a sale does not devolve upon the fiduciary, but is a conclusion drawn by the court from the facts presented by the petition, in the light of the statute, and the petition is the sole source from which the material facts warranting the sale and supporting the order are derived. (Wilson v. Holt. S3 Ala. 528 — 3 So. Rep. 321; Spencer v. Jennings, 114 Pa. St. 618 — 8 Atl. Rep. 2; Pryor v. Downing, 50 Cal. 398— 19 Am. Eep. 656; Wilson v. Armstrong, 42 Ala. 168 — 04 Am. Dec. 635.) Accordingly, it is held that the petition must affirmatively disclose by appropriate allegations the necessity for resort- ing to the sale of the lands of the estate. (Renner v. Ross, 111 Ind. 209 — 12 N. E. Rep. SOS.) So in case the statute provides that when the adminis- trator suspects the value of the personal estate of the decedent inadequate to liquidate the liabilities, he shall present an account of such personal estate to the court, whereupon an order may issue to interested parties to show canse if any they have' why the lands of the estate should not»be sold, the account showing the deficiency of the personal estate is con- sidered an indispensable jurisdictional requirement, and a sale consummated in a proceeding where it is wanting is held to be a mere nullity. I Vtkins v. Kiiman. 20 Wend. 241 — 32 Am. Dec. 534: Bloom v. Bur- dick 1 Hill. 130 — 37 Am. Dec. 299; Wood v. McChesney, 40 Barb. 417: Jackson v. Crawfords, 12 Wend. 533; Ford v. Walsworth, 15 Wend. 449; Corwin v. Merritt, 3 Barb. Ch. 341.) Claim Barred by Statute of Limitations. § 224. In Xew York it is held that a sale based upon a petition by a creditor for an order for the sale of decedent's lands, where the claim of the creditor set out in the petition is barred by the statute of limitations, is void for want of jurisdiction, as such alleged claim is regarded as no claim at all, and hence no jurisdictional ground for a sale is shown by the petition, and the sale must consequently fall becfAise of the inherent infirmity. (Butler v. Johnson, 111 X. Y. 204 — 18 N. E. Rep. 643.) And in Pennsylvania when the lien of the debts of the decedent upon his lands has expired by the limitation of time 208 VOID JUDICIAL AXD EXECUTION SALES. prescribed by the statute in this regard, the orphans' court has no jurisdiction to direct the administrator or executor to sell the land for the payment thereof. Manifestly, if the petition shows the fact of limitation the sale must be void collaterally by reason of such disclosure. (Smith v. Wildman, 178 Pa. St. 245 — 35 Atl. Rep. 1047.) Verification of the Petition. § 225. Notwithstanding the statute requires that the peti- tion be verified, the want of the verification is nevertheless not considered in the light of a jurisdictional fatality, and a sale under an order based upon a petition thus defective is not open to collateral impeachment for this defect. (Hamiel v. Donnelly. 75 Iowa, 93 — 39 X. W. Rep. 210: Ellsworth v. Hall, 4S Mich. 407 — 12 X. W. Rep. 512; Tromble v. Williams. IS Xeb. 144 — 21 X. W. Rep. 716; Williamson v. Warren, 55 Miss. 199.) And upon a like principle a sale by an administrator or guardian is not void because the petition was verified by the attorney for the fiduciary instead of the party himself. (Meyers v. McGavock, 39 Xeb. 843 — 5S X. W. Rep. 522.) Interested Parties Named in the Petition. § 226. In all those states where sales of land by adminis- trators, executors and guardians under the order of the court are considered as proceedings in personam and adversary to the interested parties, and this is the rule in a majority of the states, it is absolutely essential that all interested parties be made parties to the proceedings seeking a sale of the lands of the estate. In such ease the fiduciary or other petitioner occupies the position of plaintiff in the proceeding and the heirs or other interested persons are the defendants. In view of the elementary and fundamental proposition that no one can be deprived of his property or bound in his rights except by due process of law, the petition should disclose who the heirs are, and a failure to name them and give them the notice required by law has often been considered fatal in its consequences upon the proceedings. (Pony v. Adams. 9S X. 0. 167 — 3 S. E. Rep. 729; Dorrance v. Rayns- ford, 67 Conn. 1 — 34 All. Rep. 706; Harrison v. Harrison. 106 X. C. 2S2— U S. E. Rep. 356: Dickons v. Long, 109 X. C. 165 — 13 S. E. Rep. 841; Adams v. Jeffries, 12 Ohio 253 — 40 Am. Dec. 477: Reynolds v. Stansbnry, 20 Ohio, 344 — 55 Am. Dec. 459; Menefee v. Marge, 4 S. E. PETITIONS FOR ORDERS OR LICENSES FOR SALE OF LANDS. ".'09 Rep. 726; Tn re John's Estate, 18 \. Y. Supp. 172; Guy v. Pierson, 21 hid. IS; Jenkins v. Young, 35 Hun, 569.) Though even where it is held that the heirs must he made parties and notified, it is held that where a petition is filed against the " Unknown heirs " of the estate, a sale under the order made thereon is not void collaterally, upon the theory that the law confers jurisdiction of the subject-mat tor, and this jurisdiction is invoked by the presentation of the petition and service of notice by publication, and the determination of the court upon the sufficiency of the petition is conclusive when called in question in a collateral proceeding. (Stanley v. Noble, 59 Iowa, 666 — 13 N. W. Rep. 839.) But in states where sales by administrators and executors under the order of the court are considered as proceedings in rem, to which all the world are parties, upon well-estab- lished and ancient principle, the heirs need not be made parties to the petition for an order of sale, and the omission, even when required by statute, is regarded in the light of more irregularity, not constituting an element of jurisdic- tional infirmity. (Lyons v. Hamner, 84 Ala. 197 — 4 So. Rep. 26; Bingham v. Jones, 84 Ala. 202 — 4 So. Rep. 409; McPherson v. Cunliff, 11 S. & R. 422 — 14 Am. Dec. 642; Morris v. Hogle, 37 111. 150 — 87 Am. Dec. 243.) Thus in Washington, under a statute which requires the court, upon petition of the administrator for an order of sale of real estate of the decedent, to issue an order directing all parties interested to appear and show cause why such an order should not be made, the names of interested parties, though known, need not be mentioned. (Furth v. Mortgage Co., 13 Wash. 73 — 42 Pac. Re].. 523.) As to the necessity of making the ward a party to a petition by the guardian for the sale of his lands, the authorities are conflicting, the contrariety being attributable either to the theory adopted by the court as to the nature of such sales, whether adversary or not, or to peculiar statutory provisions. Where such proceedings are considered not adversary, the guardian represents the ward to the extent that the filing of an ex parte petition sufficient in form confers jurisdiction 14 210 VOID JUDICIAL AXD EXECUTION SALES. and the ward need not be made a party nor is he entitled to notice of its pendency. (Scarf v. Aldrich, 97 Cal. 360 — 32 Pac. Rep. 324; Myers v. McGavoek, 39 Neb. 843 — 5S N. W. Rep. 522; Thaw v. Ritchie, 136 U. S. 519 — 10 Sup. Ct. Rep. 1037; Furnish v. Austin, 7 S. W. Rep. 399; Railway Co. v. Blythe, 69 Miss. 939 — 11 So. Rep. 111.) But where the proceedings of sale of a ward's lands by the guardian are held to be adversary to the ward he must be made a party to the petition, and must receive such notice as the lav; provides in such case in order to conclude him by divest- ing him of his interest in the land. (Roche v. Waters, 72 Md. 264 — 19 Atl. Rep. 535; Moore v. Hood, 9 Eich. Eq. 311 — 70 Am. Dec. 210; Hunter v. Hatton, 4 Gill, 115 — 45 Am. Dec. 117; In re Estate of Hunter, 84 Iowa, 3S8 — 51 X. W. Rep. 20: Washburn v. Carmichael, 32 Iowa, 475; Lyon v. Vannatta, 35 Iowa, 521.) Property to he Sold Should be Described. § 227. The filing of a proper petition confers jurisdiction of the subject-matter — the land sought to be sold — there- fore the property should be described in it with sufficient particularity so as to indentify it, in order to vest the court with power to order its sale. (Stanley v. Noble, 59 Iowa. 666 — 13 N. W. Rep. 839; Blackwell v. Townsend, 91 Ky. 609 — 16 S. W. Rep. 5S7; Frazier v. Steenrod, 7 Iowa. 339 — 71 Am. Dec. 447; Verry v. McClellan, 6 Gray, 535 — 66 Am. Dec. 423.) So by statute in California a petition by an administrator to sell land must describe the lands owned by the decedent as well as the condition and value of each distinct parcel. The petition referred to the inventory which described sev- eral lots, the description of two of them were void for un- certainty, but the parcel sold was properly designated, but the sale was held void because the whole estate was not prop- erly described. (Wilson v. Hastings, 66 Cal. 243 — 5 Pac. Rep. 217.) But a different conclusion in this regard has been reached by the supreme court of thai state in a recent case as to sales by guardians, where a defective description in the petition did not make the sale void where the order of sale correctly described the land. (Scarf v. Aldrich, 97 Cal. 360 — 32 Pac. Rep. 324.) PETITIONS FOE OEDEES OB LICENSES FOB SALE OF LANDS. 211 There is a conflict among the authorities as to the necessity of an accurate description in the petition of an administra- tor of the land of the estate sought to he sold. Where the statute in explicit terms required both the petition and order of sale to describe the land, a sale was sustained after con- firmation where the petition asked for an order to sell any and so much of the lands of the would be sufficient to defray the debts of the decedent, and a similar description was embraced in the order of sale. (Wells V. Polk, 3G Tex. 120.) And where the petition to sell described the land as being located in a certain county, where the statute required a definite description, but the order of sale and subsequent pro- ceedings gave a full and complete description, the sale was held valid in a collateral action of ejectment to recover the possession of the premises from the purchaser, and this upon the principle that whereas the petition contained sufficient averments to challenge the attention of the court as to its merits, there is no want of jurisdiction, and hence the pro- ceedings of sale could not be impeached in a collateral action. (Howbert v. Heyle, 47 Kan. 58 — 27 Pac. Kep. 116; Bryan v. Baucier. 23 Kan. 95.) But we apprehend that when the petition is entirely silent as to description of the land, and where the statute requires that it contain a description of the property sought to be subjected to the order of sale, that a failure of jurisdiction is the inevitable consequence of such omission, for in such case there is nothing to call forth the action of the court. The subject-matter is then not brought before the tribunal, and with jurisdiction wanting oyer that the proceedings must of necessity be coram non judice and void. Upon plain and fundamental principles, we think it is an essential jurisdic- tional pre-requisite to a valid order of sale that the petition whereon it is based contain an adequate description of the land sufficient for intelligent comprehension and indentifi- cation. Manifestly, where the petition as well as the order of sale made thereon contained a description so indefinite and uncer- 2V2- VOID JUDICIAL AXD EXECUTION SALES. tain as to make it impossible to locate the property, the sale is void, and can not be validated even by a curative statute. (Hazleton v. Bogardus, S Wash. 102 — 35 Pac. Rep. 602.) Statutes Providing; Sale can not be Avoided, Certain Things Appearing. § 228. In several states special statutes have been passed prescribing that when certain things appear to have been done in and about an administrator's or guardian's sale it shall not be avoided when attacked by any heirs or ward. Among them are that the fiduciary be licensed by the proper probate court having jurisdiction of the estate, that is where the proceedings are pending, that he gave the prescribed bond and took the prescribed oath, gave the notice of sale as required by the statute and sold the land in good faith. When these appear to exist it is wholly immaterial whether any of the preliminary or initiatory steps in obtaining the order of sale have been taken or not, the sale can not be avoided in a collateral action, the irregularity, if any must be taken advantage of by appeal. (Aekerson v. Orchard. 7 Wash. 356 — 34 Pac. Rep. 1106; Rumrill v. Bank, 28 Minn. 202 — X. W. Rep. 731; Mohr v. Porter, 51 Wis. 4s7 — 8 X. W. Rep. 364 ; Weld v. Johnson Mfg. Co., 84 Wis. 537 — 54 X. W. Rep. 335; Reynolds v. Schmidt, 20 Wis. 374; Marvin v. Schilling, 12 Mich. 356- Mohr v. Manierre, 101 T T S. 417.) Policy of the Law Regarding Probate Sales. § 229. It is the policy of the law to maintain and uphold judicial sales, for which reason, in case of the silence of the record, the presumption obtains according to some adjudica- tions, that ;i proper petition was filed, and that the court passed upon every question in issue and its order of sale is supported by sufficient proof. (Scot! v. Scott, 85 Ky. 385— 5 S. W. Rep. 423; Currie v. Franklin. 51 Ark. 338 — 11 S. W. Rep. 477; Schaale v. Waaey, 70 Mich. 414 — 38 X. W. Rep. 317: Rowden v. Brown, 91 Mo. 42'.) — 4 S. W. Rep. 129; Schnell v. Chicago, 38 III. 382 — 87 Am. Dec 304; Hobson v. Ewan, 62 111. 146; Grignon v. Astor, 2 Bow. 319.) Therefore petitions in probate and guardians' sales are liberally construed, under a well-established policy of the law, favoring the maintenance rather than the destruction of titles thereunder, and for the purpose of avoiding the JURISDICTION DEPENDENT OX SUFFICIENT FACTS. 213 consequences resulting from the usually harsh operation of thf rule of law applicable to an avoidance of probate sales upon the grounds of insufficient petitions. (Moffitt v. Moffitt, 69 111. 641; Bowen v. Bond, SO 111. 351; .Maun- v. Parish. 26 Ohio St. 636; Win-- v. Dodge, 80 111. 564; Wright v. Ware, 50 Ala. 549; Fitch v. .Miller, 20 (a I. , JURISDICTION DEPEXDEXT OX SUFFICIEXT AVERMEXT OF FACTS. Averment of Sufficient Facts and not Their Truth Essential. § 230. The foundation of jurisdiction over the subject- matter is the filing of a petition containing allegations of sufficient facts upon which a sale is authorized under the particular statute where the application is made Enough facts must be alleged to bring the ruse within the statute, or else the court will have no power to make the order of sale. It is not absolutely essential that the elementary jurisdic- tional facts contained in the petition be true, for even if false, jurisdiction is still conferred, if the original grant was valid, because it depends upon the averments of such facts and not upon, their actual existence, for which reason the truth or falsity of these facts does not affect the jurisdiction of the court. The petition for an order of sale occupying a position analogous to a complaint, if sufficient, its filing calls upon the court to exercise its jurisdiction by inquiring into and de- termining the facts as to whether or not the matters alleged therein arc true or false, and the order which either grants or refuses the application to sell, is a judgment pronounced i ion the issues made by the averments in the petition. I n contemplation of law these allegations of facts ar I by the heirs, and the determination of the courl upon such issue is a conclusive adjudication upon the questions presented, that is as to whether or not the sale is a necessity, at least in so far as a collateral attack is concerned. (Richardson v. Butler, 82 Cal. 174 — 23 Pac. Rep. 0: Norman v. Olney, 64 Mich. 553 — 31 X. W. Rep. 555; Curran v. Kuby, :;7 .Minn. 330 — 33 N. W. Rep. :. Fla. 980 — 7 So. Rep. 163; Atkins v. Kinnan. 20 Wend. 241 — 32 Am. Dec. 534; Merrill v. Harris, 26 N. H. 142 — 57 Am. 214 VOID JUDICIAL AND EXECUTION SALES. Dec. 359; Sateher v. Satcher, 41 Ala. 26 — 91 Am. Deo. 49>: Lynch v. Baxter, -i Tex. 431 — 51 Am. Dec. 735: Young y. Lorain, 11 111. 624 — 52 Am. Dec. 463; Comstock v. Crawford.. 3 Wall. 396.) Falsity of Facts can not be Shown Collaterally. § 231. Under familiar principles, where facts sufficient are exhibited in the petition, and the court has pronounced its judgment in the matter, jurisdiction having vested, such judgment or order is no more than erroneous if in reality the facts set up in the petition are false, and the error mani- festly must be corrected by appeal, or perhaps some other expedient proceeding appropriate to obtain relief from the consequences of such determination. Collateral impeach- ment is unavailing, for it can not be shown collaterally that the facts contained in the petition are untrue. (Goodwill v. Willis. 86 Ala. 102 — 5 So. Rep. 587: Seymour v. Ricketts, 21 Xeb. 240 — 31 X. W. Rep. 781; Camden v. Plain, 91 Mo. 117 — 4 S. W. Rep. 86: Stuart v. Allen, 16 Cal. 473 — 76 Am. Dec. 551; Jackson v. Crawfords, 12 Wend. 533: Fiteh v. Miller. 20 Cal. 382; Grignon v. Astor, 2 How. 319: McCaully v. Harvey, 49 Cal. 497: Bowen v. Bond. SO 111. 351.) However, if it is affirmatively shown by the record that the required proof of such facts was not made, the order of sale is void. (Thompson v. Boswell, 97 Ala. 570 — 12 So. Rep. So; Moore v. Cot- tingham, 113 Ala. 148 — 20 So. Rep. 994.) Notwithstanding it be conceded that the jurisdiction of tlir court of probate in proceedings of this nature is special and limited, yet if it affirmatively appear from the record that the jurisdictional facts were presented and ascertained and determined by the court, such adjudication is con- clusive upon collateral attack. The order of sale is an ad- judication thai the essential facts to confer jurisdiction exist as alleged in the petition. (Linman v. Riggins, 40 La. Ann. 761—5 So. Rep. 49: Marquis v. Davis, 113 Ind. 219 — 15 X. E. Rep. 251; Edwards v. Moore, 99 X. C. 1 — 5 S. E. Rep. 13; Simmons v. Saul, 138 U. S. 439 — 11 Sup. Ct. Rep. 369; Watl v. Rambo, 29 Ala. 510 — 68 Am. Dec. 89; McKee v. Simpson, 36 Fed. Rep. 248.) But it seems that in Florida and Connecticut the finding of the probate court upon the presentation of the petition for an order of sale, thai there are debts is not conclusive, but NOTICE OF PENDENCT OF APPLICATION' FOR OrxDER. 215 merely prima facie evidence of the existence of the some, and hence the falsity of such finding will be open to collateral inquiry. This is however opposed to the weight of authority, and nowhere contended save in the two states, as far as our researches have gone. (Deans v. Wilcoxen, 25 Kla. 980 — 7 So. Rep. 163; Shclton v. Hadlock, 62 Conn. 143 — 25 Atl. Rep. 483.) NOTICE OF THE PENDENCY OF THE APPLICA- TION FOR AN ORDER OR LICENSE OF SALE NOT CONSIDERED AN INDISPENSABLE RE- QUIREMENT. Two Distinct Views as to Probate Sales. § 232. Two distinct views are maintained by the courts of this country as to the nature of sales made by adminis- trators, executors and guardians. By some it is contended and has become a settled rule of property, that such pro- ceedings arc in rem, to which all the world are parties, and by others that they are not such proceedings, but on the con- trary are distinct and independent adversary proceedings in personam, and unless the heirs are made- parties to the proceedings and are served with the notice required by law, the order of sale is void as to them. Manifestly, if the latter theory obtains, then on the plainest of fundamental principles the defendants or parties inter- ested must be brought before the court which seeks to adjudi- cate upon their rights and property, and brought in by some admonitory proceeding tantamount to the service of process, so that an opportunity is afforded for the presentation of ob- jections to the granting of the prayer of the petition to sell, should they deem resistance advisable or expedient. In such case notice is a fundamental requirement. Notice not Jurisdictional where Proceedings are in rem. § 233. But in states where proceedings for the sale of lands by administrators and executors are considered as pro- ceedings in rent the statute usually prescribes for the is- suance and service, either personally or constructively, of some notice or some order to show cause why the prayer of the petition to sell should net be granted. In several of the 216 VOID JUDICIAL AXD EXECUTION SALES. states such notice or admonitory process or order is not a jurisdictional requisite, and consequently there is no obliga- tion resting on the purchaser in such case to ascertain whether such notice of the pendency of the petition has or has not been given. The court acquires jurisdiction of the land involved by virtue of the original grant of administration over the estate and by the filing and presentation of the petition for the order in due and proper form, whereupon the power to order the sale is complete. The validity of the order of sale mani- festly is never conditioned upon the facts of the acquisition of jurisdiction of the person of the heir or other interested party. In theory of law the land of the decedent which is sold to pay his debts is charged with such debts as an in- cumbrance, and the presentation of the petition for its sale by the fiduciary calls into existence the jurisdiction of the court, there are manifestly no adversary parties to the proceedings, the action of the court in such cases, like pro- ceedings in admiralty, operates directly upon the res involved in disregard of the individuals interested therein, the world being parties, and the estate by the sale passes to the purchaser by operation of law by means of the proceedings. (Lyne v. Sandford, 82 Tex. 58 — 19 S. W. Eep. 847; Apel v. Kelsey, 52 Ark. 341 — 12 S. W. Rep. 703; Kent v. Mansel, 101 Ala. 334 — 14 So. Rep. 4S9: Furth v. Mortgage Co., 13 Wash. 73 — 42 Pac. Re].. Reese v. Xoland. 99 Ala. 203 — 13 So. Rep. 077; Hyde v. Heller, 10 Wash. 5S6 — 39 Pac. Rep. 249: Goodwin v. Sims. 86 Ala. 1025 — 5 So. Rep. 587; Ackerson v. Orchard, 7 Wash. 377 — 34 Pac. Rep. 1106; Cantelou v. Whitley, 85 Ala. 247 — 4 So. Rep. 610; Apel v. Kelsey, 47 Ark. 413 — 2 S. W. Rep 102; Sateher v. Satcher, 41 Ala. 26 — 91 Am. Dec. 498; Lynch v. Baxter, 4 Tex. 431 — 51 Am. Dec. 735: McPherson v. Cunliff, 11 S. & R. 422 — 14 Am. Dec. 642; May v. Marks, 74 Ala. 249; Rogers v. Wilson. 13 Ark. 507: Herriman v. Janney, 31 La. Ann. 276; Bennett v. Owen. 13 Ark. 177; Oriol v. Herndon. 3S La. Ann. 759; Beauregard v. New Orleans, is How. 497: Heath v. Layne, 62 Tex. 686; Gager v. Henry, 5 Sawyer. 237. In Arkansas where the statute provides that notice of the iency of the petition for a license to sell must be given, the absence of such notice is regarded as merely an irregu- larity, the supreme court of that state in a Into ease said: "When an administrator desires to sell land, he is required to give notice by publication of his intended application. NOTICE OF PENDENCY OF APPLICATION FOR ORDER. 217 This is to enable persons interested to make themselves par- ties, contest the application, if they see proper, and appeal from the order, if adverse to them. Yet, it is held, that failure to give such notice is but an irregularity in the exer- cise of jurisdiction, and is cured by confirmation ". (Apel v. Kelsey, 52 Ark. 341 — 12 S. W. Rep. 703.) Notice not Essential where Guardians' Sales are in rem. § 234. As in sales by administrators and executors so in sales by guardians, there are two diametrically opposite posi- tions maintained by the courts. Pursuant to a decided pre- ponderance of the authorities proceedings of sale by a guar- dian of a ward's lands are not adverse to the ward, but are in the nature of proceedings in rem carried on by and for the benefit of the ward, through the instrumentality of the guardian, of which proceedings the ward needs to have no notice. The guardian representing the ward, the latter is brought in by the filing of the petition by the former, which confers jurisdiction upon the court to make the order of sale. In contemplation of law the ward is the petitioner, and hence notice of its pendency and presentation is obviously unnecessary, and if required by statute it is intended not for the ward's protection, but for the protection of third parties whose interests may be affected by the proceedings. As to the ward its absence, on principle, can not impair the validity of the sale. On the other hand there is a minority of de- cisions maintaining that such proceedings, under the peculiar provisions of statute, are considered adversary' to the extent of the statutory requirements. The former doctrine to the effect that, they are proceedings in rem is more consonant with reason, sound on principle and in accordance with the vast weight of judicial authority. (Meyers v. McGavock, 39 Neb. 843 — 5S N. W. Rep. 522; Doughtry v. Thweatt, 105 Ala. 615 — 16 So. Rep. 920; 'Scarf v. Aldrich. 97 Cal. 360 — 32 Pac. Rep. 324; Thaw v. Ritchie, 136 U. S. 519 — 10 Sup. Ct. Rep. 1037; Mohr v. Porter. 51 Wis. 487 — 8 'N. W. Rep. 364; Smith v. Race, 27 111'. 387 — 81 Am. Dec. 235; Gibson v. Roll. 27 111. SS — 81 Am. Dec. 219; Reid v. Morton. 119 111. US — 6 N. E. Rep. 414; Camp- bell v. Harmon, 43 111. 18; Spring v. Kane. 86 111. 580; Thompson v. Tolmie. 2 Pet. 157; Mulford v. Beveridge, 78 111. 455; McNitt v. Turner, 16 Wall. 352; Grignon v. Astor, 2 How. 319.) 218 VOID JUDICIAL AXD EXECUTIOX SALES. NOTICE OF THE PENDENCY OE THE APPLICA- TION FOE AN ORDER OR LICENSE OF SALE CONSIDERED A JURISDICTIONAL REQUIRE- MENT If Sale by Administrator is Considered Adversary Notice Es- sential. § 235. While there are several states wherein the doctrine is promulgated that sales in probate by administrators and executors to pay debts of the decedent are proceedings in rem and notice is not an essential requirement, the rule that ob- tains in a majority of states, and the decided preponderance of judicial authority is not in harmony therewith. Pursuant to the declarations of this preponderance of decisions the in- auguration of the proceedings for the purpose of obtaining a license for the sale of real estate of the decedent by the fiduciary, is a distinct and independent adversary proceeding partaking of the nature of an original proceeding in prr- sonam, wherein the fiduciary as petitioner assumes the posi- tion of plaintiff and the heirs whose interests are sought to be subjected, are the defendants. The admonitory order to show cause or the notice in case it is a notice, whether served personally or published, is in the nature of original process by which the interested heirs are brought before the court. Manifestly, where this doctrine prevails, such defendants are not in court until such notice or order to show cause is served as by law required, unless in case of express waiver by one competent to do so. Accordingly, that a sale of land by an administrator upon his petition is not a proceeding in rem, but adversary, and further, that a failure to give the prescribed notice of the pendency of such petition substantially as prescribed by stat- ute vitiates the entire proceedings of sale, upon jurisdictional grounds, as against the heir not notified, is the rule an- nounced in a majority of states and by the weight of au- thority. (Perry v. Adams, 98 N. C. 167 — 3 S. E. Eep. 729; Cunningham v. Anderson. 107 Mo. 371 — 17 S. W. Rep. 972; Harrison v. Harrison. 106 N - c. 2«2 — 11 S. E. Rep. 356; Ilulchinson v. Shelly, 133 Mo. 400 — 34 S. W. Eep. 838; Johnson v. Cobb, 29 B. C. 372 — 7 S. E. Rep. 601; Rail- NOTICE OF PENDENCY OF APPLICATION FOR ORDER. way Co. v. Cook, 43 Kan. 83 — 22 Pac. Rep. 988; Fisher v. Siekman, 125 Mo. 165 — 28 S. W. Rep. 435; Hogle v. Hogle, 49 Hun, 313 — 2 N. Y. Supp. 172; Clark v. Thompson, 47 111. 25 — 95 Am. Dec. 457; Bloom v. Burdiek, 1 Hill, 130 — 37 Am. Dec. 299; Valle v. Fleming, 19 Mo. 454 — 61 Am. Dec. 566; Vick v. Mayor, 1 How. 379 — 31 Am. Dec. 109; Doe V. Bowen, 8 Ind. 197 — 05 Am. Dec. 758; Gibbs V. Shaw, 17 Wis. 197 — 84 Am. Dec. 737; French v. Hoyt, 6 X. H. 370 — 25 Am. Dec. 464; Root v. McFerrin, 37 Miss. 17 — 75 Am. Dec. 49; Mickel v. Hicks, 19 Kan. 578 — 27 Am. Rep. 101; Clark v. Hillis, 134 Ind. 421 — 34 N, E. Rep. 13; O'Dell v. Rogers, 44 Wis. 172; Frazier v. Pankey, 1 Swan. 71: gett v. Hitt, 29 Wis. 170; Fisk v. Kellogg, 3 Ore. 503; Corwin v. Merritt, 3 Barb. 341; Hawkins v. Hawkins, 28 Ind. 00; Rankin v. Miller. 4:; Iowa, 11; Wheatley's Lessees v. Harvey, 1 Swan, 4S4; Jos] in v. Caughlin, 20 Miss. 134; Schneider v. McFarland, 2 N. Y. 459; Winston v. McLendon, 43 Miss. 254.) In a recent case in Connecticut the court held that an order of sale granted to an administrator by the court in the ab- sence of notice is coram non jud'iee and void, and therefore the sale thereunder a mere nullity and subject to successful collateral impeachment. The court said: " It is a principle of natural justice of universal obligation, that before the right of an individual can be bound by judicial sentence, he shall have notice, either actual or constructive, of the pro- ceedings against him ". (Dorrance v. Raynsford, 67 Conn. 1 — 34 Atl. Rep. 706.) Notice in Sales by Guardians. § 236. In several states guardians' sales are considered adversary, and notice to the ward considered an indispen- sable formality in the acquisition of jurisdiction to order the sale of his lands. When the statute has been contra \ ■■ in this regard in procuring the order of sale, the infirmity has been held a fatal one, and the sale pronounced void because the court had no jurisdiction to order it in the absence of juris- diction of the person of the ward. These cases are however against the weight of authority and unsound in principle. (In re Estate of Hunter, *4 Iowa, 3S8 — 51 N. W. Rep. 20; Kennedy v. Gaines, 51 Miss. 625; Washburn v. Cavmiehael, 32 Towi. 475; Rule v. Broach, 58 Misa. 552 ; Good v. Norley, 28 Iowa, 188 , Lyon v. Vanatta, 35 Iowa. 521 — Williamson v. Warren, 55 Miss. 199; Frazier v. Steenrod, 7 Iowa. 339 — 71 Am. Dec. 447.) Statutes Must be Strictly Pursued. § 237. Whether the proceedings under the statute inaugu- rated by the guardian for the sale of the ward's lands be con- 220 VOID JUDICIAL AXD EXECUTION SALES. siclered adversary to the interests of the latter and therefore i)i personam or be regarded as in rem, as a general rule, the statute must be strictly pursued, as the ward can not be de- prived of his estate except by due process of law. (Leuders v. Thomas, 35 Fla. 518 — 17 So. Rep. 633 ; Fisher v. Siekman, 125 Mo. 165 — 28 S. W. Rep. 435; Carrigan v. Drake. 36 S. C. 354 — 15 S. E. Rep. 339; Elwood v. Northrup, 106 N. Y. 172—12 N. E. Rep. 590; Tracy v. Roberts, 88 Me. 310 — 34 Atl. Rep. 68; Isert v. Davis, 32 S. W. Eep. 294.) Acceptance and Waiver of Service of Notice. § 238. Pursuant to a universally recognized principle of lav.\ by virtue of his infancy a minor is incompetent to act for himself; hence, as a necessary result, where notice is an essential requisite in the acquisition of jurisdiction to make a valid order and sale, he can not waive such notice, by rea- son of his incompetency. This proposition is so fundamental and elementary as to preclude the necessity for the citation of authority in substantiation thereof. And what is said in regard to a waiver of service also applies with equal force to the acceptance of service. (Winston v. McLendon, 43 Miss. 254; Whitesides v. Barber, 24 S. C. 373; Eicker v. Vaughn, 23 S. C. 187; Finley v. Robertson, 17 S. C. 435.) In the absence of express statutory provision investing a general guardian with the power to waive notice, he too is not authorized to waive it by appearing for the ward without the previous service of notice. The appearance of the guar- dian will not cure the jurisdictional defect by reason of the want of service of notice on the minor. (Diekison v. Dickison, 124 111. 483 — 16 X. E. Eep. S61 ; Allsmiller v. Freutehenicht, 86 Ky. 198 — 5 S. W. Eep. 746; (lark v. Thompson, 47 Til. 25 — 95 Am. Doc. 457; Helms v. Chadbourne, 45 Wis. 60: Rucker v. Moore, 1 Heisk. 726: Chambers v. Jones, 72 111. 275; Doe v. Anderson, 5 Ind. 33; Moore v. Stark. 1 Ohio St. 369.) TO BE OPEKATTYE THE NOTICE M1 T ST BE GIVEN IX THE MANNEE AS DIRECTED BY STATUTE. General Rule as to Defective Service and Non-service. .. _':;!>. As ;i general rule there is a vast difference between process defectively served and jorocess not served at all, and TO BE OPERATIVE THE NOTICE MUST BE GIVEN BY STATUTE. 221 this distinction is applicable, in a paeasure at least, to pro- ceedings in probate as veil as to other judicial proceedings. Thus, where the statute required notice of the application for an order of sale to be personally served on a minor, service upon him by leaving a copy with his father, as evidenced by the return, meets the requirements of law to the extent that it is sufficient to confer jurisdiction over the person of the minor, the service of notice not being entirely wanting, but merely defectively served. (Bunce v. Bunce, 59 Iowa, 533 — 13 N. W. Hop. 705.) The general rule in this regard applies, as we have said, at least to some extent to probate proceedings, and is thus stated: If it appears that there was notice, though it be de- fective, or the service thereof be imperfect, neither in strict compliance with the directions of the statute, and the court determine in favor of the sufficiency of such notice or service, which is shown by the record, even though such determina- tion was erroneous, the judgment of the court rendered thereon will not be held void in a collateral assault. (Roteh v. Humbolt College, 89 Iowa, 480-56 N. W. Rep. 658; Fan- nin- v. Krapp, 68 Iowa, 244-26 N. W. Rep. 133; Gray v. Wolf, 77 Iowa, 630-42 N. W. Rep. 504; Woodbury V. Maguire, 42 Iowa, 339; Shawhan v. Loffer, 24 Iowa, 217.) Day Unauthorized or not Sufficiently Remote. § 240. Notwithstanding the day for the hearing is des- ignated by the court, the order to show cause and all sub- sequent proceedings based thereon are void, when the return day in the notice was upon a day unauthorized by statute m such case, or the return day was not sufficiently remote to allow the completion of the notice required by law. (Lyon v. Vanatta, 35 Iowa. 521; Stilwell v. Swartout, 81 N. Y. 109; Haws v. Clark, 37 Iowa, 355.) It is a general rule that the notice must be given sub- stantially in the manner prescribed by statute, or it is in- operative and jurisdiction will fail in consequence of a non- compliance with statutory requirements in this behalf. (Schnell v. Chicago. 38 111. '383 -87 Am. Dec. 447; Morris v. Hogle, 37 u, 150-87 Am. Dec. 243; Gibson v. Roll. 27 111. 190-83 Am. Dec. 181; Herdman v. Short, 18 111. 59; Bree v. Bree, 51 111. 367.) VOID JUDICIAL AND EXECUTION SALES. If Description is Given it Must be Correct. § 241. So if the notice purports to embrace a description of the land sought to be sold, it must be substantially correct. Manifestly an order to sell one piece of property based upon a notice which describes another and a different tract must be void. Thus, in an early case in Iowa the land was er- roneously described in the notice in a guardian's sale, which was held to be equivalent to an entire want of notice, and therefore an entire want of jurisdiction to grant the order of sale, the proceedings in that state being considered adversary. (Frazier v. Steenrod, 7 Iowa, 339 — 71 Am. Dec. 447.) Notice Given in Unauthorized Manner. § 242. Where the statute directs that notice be given by personal service, unless publication thereof is ordered by the court, it is held that a publication, in the absence of the order therefor, is inoperative because unauthorized, (Halleck v. Moss, 17 Cal. 339.) or if publication of notice is ordered to be made in a particu- larly designated newspaper for a specified number of times, publication must be completed in such paper, and not divided up between it and some other paper. (Townsend v. Tallant, 33 Cal. 45 — 91 Am. Dec. 617.) If a copy of the petition for the order and account are by statute required to be served, it is held that the service of a summons in their stead is unauthorized and consequently void. (Johnson v. Johnson, 30 111. 223.) So where the statute required service of notice, either personal or by publication, in proceedings of sale by ad- ministrators, a judgment rendered against a minor upon an acknowledgment of service by his general guardian was decided to be void, and the sale thereunder a nullity. (Clark v. Thompson, 47 111. 25 — 95 Am. Dec. 457.) By statute, service on an infant is required to be made both on the infant himself and by delivering a copy to the person designated in the order of the court, and a failure to comply with the latter, notwithstanding the compliance with the TO BE OPERATIVE THE NOTICE MUST BE GIVEN B1 E. 2 !3 former and the appointment of a guardian ad litem at his request, makes the proceedings void. (Moulton v. Moulton, 4 7 Ihin. 606.) And where the statute requires service on a minor to be made on him personally, as well as on his father, mother or guardian, a judgment rendered against him upon personal service of process upon him alone, has been held void and a sale based upon such judgment can be impeached in a collateral action. (Cox v. Story. 80 Ky. 64; Bellamy v. Guhl, 02 How. Pr. 445; Helms v. Chadbourne, 45 Wis. 60; Whitney v. Porter, 23 111. 445.) The statutory mode of service is regarded as imperative; the supreme court of Wisconsin in commenting upon this proposition in a comparatively late case has said : " Another principle is equally clear, and that is, that when the statute prescribes a particular mode of service that mode must be followed ". (Watertown v. Robinson, 69 Wis. 230 — 34 N. W. Rep. 139.) Accordingly, where the statute required service on an in- fant under fourteen to be made on the father, if living, a decree of sale of the lands of such infant, where the return evidences the fact of service upon his custodian, but being silent as to whether this was the father or not, was decided to be void. (Jenkins v. Crofton, 9 S. W. Rep. 406.) And the same ruling was made in Mississippi under a stat- ute providing that upon the application of a guardian to sell lands notification shall be made to at least three of the near relatives of the minor, if such three be in the state, but this provision was contravened, or the summons was served upon one only, the sale being void in consequence of such omissions. (Fitzpatrick v. Real, 02 Miss. 244; Stampley v. King, 51 Miss. 728; Temple v. Hommock, 52 Miss. 360.) So in a late case in Illinois plaintiff instituted suit against two infants averring that he had furnished money to pay off a trust deed on their lands, and demanding to be subrogated to the rights of the trustee, and to be permitted to foreclose. 224: VOID JUDICIAL AXD EXECUTION SALES. After service, which was apparently regular, and an answer by a guardian ad litem, the relief demanded was granted and the lands ordered sold, plaintiff becoming the purchaser, receiving a deed thereto and thereafter sold the property to an innocent third party. Subsequently ejectment was brought by the infants to recover possession from such third party, and upon the trial of which case the return of service in the original case was read which disclosed the fact that a copy of the notice was left at the usual place of residence of the'defendants, with " Lorenzo E. Wolfer ", but the return did not show that such person was the plaintiff in the action. The infants were permitted to show in the ejectment suit that they were stepchildren of the plaintiff in the original action and resided with him, and that the copy was left with him. Judgment for the possession was rendered in the eject- ment suit upon such state of facts. (Hemmer v. Wolfer, 124 111. 435 — 11 N. E. Rep. 8S5.) NOTICE FOR THE PRESCRIBED LENGTH OF TIME MUST BE GIVEN. Provision of Statute as to Length of Notice is Imperative. § 24:3. The statutory requirement for the publication of a notice for a specified length of time is imperative, and the publication of a notice for a time less than that sanctioned by law is a nullity, imparting no validity to a sale or other subsequent proceeding founded thereon, the defect being of a jurisdictional nature. (Townsend v. Tallant, 33 Cal. 45 — 91 Am. Dec. 617; Convin v. Merritt, 3 Barb. 341; Monahan v. Vandyke, 27 111. 155; Havens v. Sher- man, 42 Barb. 636.) The statute prescribing the notice and the duration of its publication but not extending the power of the court to abridge the time, it is wholly immaterial that the notice was shortened by the order of the court or not, it is still void. (Havens v. Sherman, 42 Barb. 636.) In Hlinois the statute required the notice to be published for three successive weeks, the first publication to be six weeks before the presentation of the petition. The notice NOTICE FOR THE PEESCHIBED TIME MUST BE GIVEN. 22o published designated a day upon which the petition was to be presented which was less than six weeks from the date of the first publication. The supreme court of that state held that the notice was void, and no validity could be imparted to it by the presentation of the petition at a day subsequent to that designated in the notice and which would be six weeks after the first publication. (Gibson v. Eoll, 30 III. 178 — 83 Am. Doc. 181.) So where the order of sale was originally granted without notice, for which reason it was void, no subsequent notice of sale, report of sale, or confirmation thereof by the court can have any effect upon the proceedings, the infirmity being jurisdictional, exposing the sale to collateral attack. (Hutchinson v. Shelly. 133 Mo. 400 — 34 S. W. Eep. 838.) And for similar and self-evident reasons where no notice to the heirs was given and no petition was exhibited whereon to found the order of sale, the proceedings of sale are uncom- promisingly void. (Picard v. Montross, 17 So. Rep. 375.) Originally the order directing an administrator to sell lands of the decedent was properly granted after due notice, but no sale was consummated thereunder, and two years thereafter without any previous notice or other petition, an- other order was made embracing different provisions as to price and manner of sale, and a sale was made under this second order pursuant to the terms therein as to price, but according to the first order in manner of making the sale. Confirmation was duly entered. The second order was held void, and the sale made in pursuance of a void judgment must of necessity itself be also void. (Bethel v. Bethel, 6 Bush, G5.) On principle it would seem that notice extended to a per- son acting in one capacity should not bind him in his rights in a different capacity. Accordingly, it is held in Indiana that consent given by a woman as guardian of minors will not prejudice her claim as the widow of the decedent. (Helms v. Love, 41 Ind. 210.) 15 226 VOID JUDICIAL AXD EXECUTION SALES. THE ORDER OR LICENSE OF SALE AND ITS CON- CLUSIVENESS AS AN ADJUDICATION. Order Must not Go Beyond the Petition. § 244. The order or license of sale is the judgment under which the sale is made. The authority of the court to act in the premises is invoked by the petition praying for the order. .Manifestly, the prayer of the petition must not exceed the scope of the averments of the same, and by analogy, the petition being the foundation whereon the order is founded, the latter must not be broader in latitude than the former, or else it adjudicates matters not in issue. (Wilson v. Holt, 83 Ala. 528 — 3 So. Rep. 321; Pryor v. Downey, 50 Cal. 38S — 19 Am. Rep. 656.) Accordingly, no more land should be ordered sold than is brought within the jurisdiction of the court by means of the petition, the sale of such not subjected to the jurisdiction of the court is void. (Verry v. McClellan, 6 Gray, 535 — 66 Am. Dec. 423: Townsend v. Cordon, 19 Cal. 188.) And the assignment of dower upon the report of a commis- sioner appointed by the court, including a tract not described in the petition, is a void act. (Falls v. Wright, 55 Ark. 562 — 18 S. W. Rep. 1044.) Only the Land Embraced in the Order can be Sold. § 245. The order of sale being in the nature of a judgment directing the sale of certain specified lands, the sale of a tract not embraced therein is void upon jurisdictional grounds. i. Melton V. Fitch, 125 Mo. 281 — 28 S. W. Rep. 612.) The order of sale is the officer's authority to make the sale, and as the fiduciary has no authority over the real estate of an intestate except to sell it in pursuance of an order from the court lawfully issued, it is manifest that a sale made by the fiduciary without having first obtained a license therefor, or if obtained and the same is void, is without warrant in law and wholly destitute of legal support. It is unauthorized and void to the extent that it can neither be ratified by lapse TIIE OKDEE OR LICENSE OF SALE AND ITS CONCLUSIVENESS. 227 of time nor by the act of the parties, nor can it be validated by confirmation of the court. (Cunningham v. Anderson, 107 .Mo. 371 — 17 S. W. Rep. 972; Dawson v. Helmes, 30 Minn. 107 — 14 N. W. Rep. 462; Johns v. Tiers, 114 Pa. St. 611 — 7 Atl. Rep. 923; Cummings v. Simpson, 1 S. E. Rep. 657; Broad- water v. Richards, 4 Mont, so — 2 Pac. Rep. 544; Goforth v. Langworthy, 4 Ohio, 129 — 19 Am. Dec. 588; Gelstrop v. Moore, 26 Miss. 206 — 59 Am. Dec. 254; Walbridge V. Day, 31 111. 379 — 83 Am. Dec. 227; Evans v. Snyder, 64 Mo. 516; Wells v. Chaffin, 60 Ga. 677.) Notwithstanding the existence of an order of sale, if the description of the land embraced therein is so indefinite and uncertain as to be void for uncertainty, or if other lands are sold than those described in the petition, the sale is a nullity, passing no title and subject to collateral attack. (Blackwell v. Townsend, 91 Ky. 609 — 16 S. W. Rep. 587.) As the order of sale by the court is the judicial authority of the fiduciary to sell the land, it is simultaneously also a limi- tation upon his powers precluding a sale of that not therein lawfully authorized. (Kingsbury v. Love, 95 Ga. 543 — 22 S. E. Rep. 617.) In Alabama it is held in a late case that any order of sale made by the court directing the sale of lands of a decedent is void for want of jurisdiction if the will of the decedent con- fers the power to sell upon his executor. (Wilson v. Holt, 83 Ala. 528 — 3 So. Rep. 321.) Though it is held in California that under a will devising property to the executor therein named in trust, but not ex- pressly authorizing any sale of the realty otherwise than by a direction to pay the debts of the testator, a sale and con- veyance by such executor in the absence of an order of the court to that effect is void and passes no title to the pur- chaser. f II use v. Den. 85 Cal. 390 — 24 Pac. Rep. 790.) Order to Sell upon Petition to Mortgage. § 246. In .Michigan an order to mortgage was granted upon an administrator's petition to sell, and a continuance ordered for a specified time, whereupon an order to sell was made without a new notice, because it was found that it was impracticable to mortgage ; the sale was decided invulnerable 228 VOID JUDICIAL AND EXECUTION SALES. upon collateral attack upon the ground that the evidence for the one order was essentially similar to that required for the other. (Cahill v. Bassett, 66 Mich. 407 — 33 N. W. Rep. 722.) But in Iowa and Indiana a diametrically opposite con- clusion was reached by the court, where an order to mortgage made upon a guardian's petition to sell, was held void for want of jurisdiction. (Edwards v. Baker, 145 Ind. 281 — 44 N. W. Rep. 467; McMannis v. Rice, 48 Iowa, 361.) Order of Sale to Pay Debts Barred by Statute of Limitations. § 247. In Pennsylvania, Massachusetts and Michigan the rule obtains that an order of sale directing an administrator to sell lands of the estate to pay debts of the decedent barred by the statute of limitations, is void, and the purchaser re- ceives no title at a sale thereunder, because the court had no jurisdiction to order the sale upon barred claims, they having ceased to be a charge upon the land. (Smith v. Wildman, 178 Pa. St. 245 — 35 Atl. Rep. 1047: Campmi v. Gillett. 1 Mich. 416—53 Am. Dec. 73; Heath v. Wells, 5 Pick. 139 — 16 Am. Dec. 383; Palmer v. Oakley. 2 Doug. 433 — 47 Am. Dee. 41; Tarbell v. Parker, 106 Mass. 347; Thompson v. Brown, 16 Mass. 172.) These cases are justifiable perhaps, where the real estate comes within the control of the fiduciary, or of the court, only in case there are debts, which can not be when there are none, or only such as are barred by the statute of limitations. On principle they are manifestly wrong, unless based upon express mandatory provisions of statute. In New York it is held that a claim barred by the statute of limitations is in contemplation of law no debt at all, and a sale of land by an executor under a power in the will to pay such, is void, the fiduciary being bound to plead the statute in such case. (Butler v. Johnson, 111 N. Y. 204 — 18 N. E. Rep. 643.) And if the sale were by the court and not under a power in the will, it seems that the same reasoning would apply, the statute being principally intended for the protection and benefit of the heirs. In several states a different rule prevails, where sales THE OKDEB OE LICENSE OF SALE AXD ITS CONCLUSIVENESS. 229 based upon claims against an estate to which the statute of limitations might be successfully pleaded, are not considered void. (Postlewaite v. Ghiselin, 97 Mo. 420 — 10 S. W. Bep. 482; Deans v. Wilcoxen, 25 Fla, 980 — 7 So. Rep. 163; Giddinps v. Steele, 2S Tex. 733 — 91 Am. Dee. 336; Hall v. Woodman, 49 N. H. 295.) There is a conflict of authority as to the effect of a sale by an administrator to pay debts when in fact there are none. Pursuant to the weight of authority the order and sale are not pronounced void when questioned in a collateral pro- ceeding. (Deyton v. Cell, SI Ga. 370 — 8 S. E. Rep. 620; Cnrran v. Kuby, 37 Minn. 330 — 33 N. W. Rep. 907; Murphy v. De France, 105 Mo. 53 — 15 S. W. Rep. 949 — Succession of Theze, 44 La. Ann. 46 — 10 So. Rep. 412; Merrill v. Harris, 26 N. H. 142 — 57 Am. Dec. 359; McNally v. Haynes, 59 Tex. 583; Bowen v. Bond, 80 111. 351.) Description of Property in the Order. § 248. The form and contents of the order or license dif- fers in different states, in some it must describe the land to be sold and the terms of sale, while in others it need not designate which part of the testator's lands are to be sold. Thus it is held in Arkansas that the fact that the order con- tains no description will not render the sale inoperative, when it appears to have been granted on a certain petition which itself embraces a sufficient description. (Montgomery v. Johnson, 31 Ark. 74.) And in Georgia a sale was sustained where the order was for the sale of all the real estate of the decedent without any further attempt at description in particular. jDoe v. Henderson, 4 Ga. 148 — 48 Am. Dec. 216.) The Texas statute provides that the order of sale contain a description of the land to be sold, but the courts of that state have held that this provision is directory merely, and therefore the omission of such description is an irregularity only which will not expose the sale to collateral impeachment. (Robertson v. Johnson, 57 Tex. 62.) And in Massachusetts the order need not describe which part of the lands of the estate are to be sold. (Yeomans v. Brown, 8 Met. 51; Norton v. Norton, 5 Cush. 524.) 230 VOID JUDICIAL AND EXECUTION SALES. As a general rule that must be regarded as certain which is capable of being made so. Hence, if the order embraces sufficient, either in itself, or by reference to maps, papers, plats, or other public records, to furnish the means of iden- tification, it is not void, for the office of a description is not to identify the property, but rather to furnish the means of identification. (Thain v. Rudisill, 126 Ind. 272 — 26 X. E. Rep. 46.) But where the number of the lot and block was given with- out designating in what city or village these were located it is insufficient, because void for indefiniteness. (Herrick v. Ammennann. 32 Minn. 544 — 21 X. W. Rep. 836.) Though it was held that where a certain number of acres were mentioned out of a certain corner of a designated tract, where the decedent owned no more than that number of acres, this was considered a sufficient description. (Bloom v. Burdick, 1 Hill. 130 — 37 Am. Dec. 299.) Statute Authorizing a Sale does not Include Exchange or Mortgage. § 249. If the statute authorizes a guardian upon the order of the court, to sell real estate of the ward for the purpose of investing the proceeds in other lands, the petition of a guardian praying for an order to exchange the ward's lands for other lands designated, the order made in pursuance of such petition permitting an exchange, are absolutely void for the reason that the provision of statute to sell can not be interpreted to mean exchange. (Meyer v. Bosseau. 47 Ark. 460 — 2 S. W. Rep. 112.) Upon similar principles it is held that where the statute authorizes the court by its order to direct the administrator to sell the real estate of a decedent, an order directing him to mortgage it is void. (Black v. Dressell, 20 Kan. 153.) So in an early ease in the federal supreme court it was held that the word " sale " did not mean the transfer of the land to a creditor in payment of his debt against the estate, but infant a transfer for cash under the formalities of a sale under the order of the court. (Williamson v. Berry,' 8 How. 495.) THE ORDER OR LICENSE OF SALE AND ITS CONCLUSIVENESS. 231 Sale of a Part Interest Only or of Interest Subject to Incum- brance. § 250. Tinier a statute authorizing the probate court to order the sale of the whole or any part of the real estate of the decedent to pay debts, as may be considered necessary by the court, a petition and order for the sale of an undivided half to pay the share of three of the six heirs who had paid their share of the debts was held void in a collateral proceed- ing, because a sale of a less than the entire interest in a par- ticular tract owned by the decedent is unauthorized by the statute. (Eberstein v. Oswalt, 47 Mich. 254—10 N. W. Rep. 3G0.) And for similar reasons a sale by an administrator under the order of the court made subject to a mortgage placed upon the land by one of the heirs upon his interest, was decided to be nugatory. (Hewitt v. Durant, 78 Mich. 186 — 44 N. W. Rep. 318.) Order of Sale is Conclusive if Court had Jurisdiction. § 251. Jurisdiction having been properly acquired, the order or license for the sale of land, so long as it stands with- out being vacated or reversed, is conclusive upon all parties who may be interested in the property involved and who were parties to the proceedings. It can not be assailed in a col- lateral action for any error which the court may have made, or for fraud or irregularity, provided however, that the court acquired jurisdiction to grant the order or license of sale. The same rule of law applies to such order as is applicable to ordinary judgments in actions at law or decrees in suir> in equity. And the adjudications of probate courts in granting orders or licenses of sale are as important as those of courts of a more general jurisdiction, and the determination upon the issues presented equally as conclusive. (Hodge v. Fabian, :;i S. C. 212 — 9 S. E. Rep. 820; Wall v. Wall. 123 Pa. St. 545 — 16 All. Rep. 59s ; Eutton v. Laws, 55 towa, 710 -8 X. W. Rep. G42; Withers v. Patterson, M7 Tex. 491 —86 Am. Dec. 643; Johnson v. Beazley, 65 Mo. 250 — 27 Am. Rep. 276; Cecil v. Cecil. 19 Md. 72 — 81 Am. Dec. 626; Rudy v. Uii.li. 69 Pa. St. L77 — 8 Am. Rep. 238; Merrill v. Earris, 26 N. H. 142 — 57 Am. Dec. 359; McDade v. Burch, 7 Ga. 559 — 50 Am. Dec. 497: Bailey v. Dilworth, 10 S. & M. 404 — 48 Am. Dec. 760; Wyman v. Campbell, 6 Port. 219 — 31 Am. Dec. 677; 232 VOID JUDICIAL AND EXECUTION SALES. Roach v. Martin, 1 Hair. 54S — 28 Am. Dec. 746 ; State v. McGlynn, 20 Cal. 233 — 81 Am. Dec. 118; Cummings v. Cummings, 123 Mass. 270; Hood's Estate, 90 X. Y. 512; Johns v. Hodges, 62 Md. 525.) Hence the order is an adjudication of every fact essential to the validity of the same. (English v. Woodman, 40 Kan. 752 — 21 Pac. Rep. 283; McGregor v. Morrow, 40 Kan. 730 — 21 Pac. Rep. 157.) The order of sale is then an adjudication of a final nature, and in order to maintain his title under a sale made in pur- suance thereof, the purchaser need not again establish the farts necessarily found by the court before making the order, nor need he seek to justify the legal conclusions found by the court from the facts produced. All errors or irregularities must be corrected on appeal, or by motion or some other re- visory proceeding, but in the absence of the successful ap- plication of such remedies the order is invulnerable upon an attempt at collateral impeachment. ( Pratt v. Hotaling, 45 Mich. 457 — 8 X. W. Rep. 72 ; King v. Nunn, 99 Mich. 590 — 5S X. W. Rep. 636; Macey v. Stark, 116 Mo. 481 — 21 S. W. Rep. 1088; Norman v. Olney, 64 Mich. 553 — 31 N. W. Rep. 555; Myers v. Davis, 47 Iowa, 325; Weyer v. Bank. 57 Ind. 19S.) Notwithstanding the general rule of conclusiveness ap- plicable to orders of sale there is at least one prominent ex- ception to the rule, and that is, if the alleged decedent is in fart alive, the decree, order or license of sale is void for want of jurisdiction. The actual death of the owner of the estate is a jurisdictional fact which must be true and is not con- clusively adjudicated by the grant of administration. The grant being merely prima facie evidence of the death of such owner, which will not, however, preclude the production of evidence that in fact the person presumed to be dead is in fact alive, and if alive there is a total want of power to ad- minister over his estate as that of a decedent, Therefore, it may be shown in a collateral proceeding that the alleged decedent is really living. (Scott v. McNeal, 154 U. S. 34 — 14 Sup. Ct. Rep. 1108.) Decrees and orders of courts exercising probate jurisdic- tion are dependent for their validity upon the fact of juris- diction over the subject-matter involved, and over the parties. HEALING STATUTES AND THEIR EFFECT. 233 This is a question of paramount consideration, for it is in sales of this kind as it is in those under executions upon judgments at law, or under decrees in chancery, that the proceedings are wholly void if jurisdiction is wanting, ac- cording to a fundamental principle of jurisprudence. In many of the states statutes exist providing what shall be em- braced in the order. These statutes differ materially, special reference must be had to the particular enactments, as it would be neither profitable nor expedient to enumerate them here or observe their distinctions and peculiarities, but the practitioner is directed to the statute in force where the pro- ceeding is pending. HEALIXG STATUTES AND THEIR EFFECT. General Provisions of These Statutes. § 252. In several of the states, among them Wisconsin, Michigan, Minnesota, Nebraska, Indiana, Maine, Massachu- setts and Washington, healing statutes have been enacted in regard to sales by administrators and executors, and in Oregon as to those made by guardians, in which it is provided in substance that in case of an action relating to any estate sold by one of these fiduciaries in which the heir or ward, or any person claiming under him, shall contest the validity of such sale, the same shall not be avoided on account of any irregularity in the proceedings provided it shall appear, (a) that the administrator, executor or guardian was licensed to make the sale by the court having jurisdiction, (b) that the fiduciary gave a bond Avhich was approved by said court before the sale, (c) that he took the oath prescribed by law, (d) that he gave the notice of the time and place of sale as by law required, and (e) that the premises were sold accord- ingly, and the sale confirmed by the court, and that the lands are held by one who purchased them in good faith. (Sec. 3919 Sanb. & Berr. An. St. Wis. 1889; Sec. 6076 How. St. Mich. 1882: Sec. 4612 St, Minn. 1894; Sec. 1178 Cons. St, Neb. 1891: See. 2520 Burn's An. St. Ind. 1894; Sec. 6474 Bal. St. Wash. 1897; Sec. 31, Ch. 71, Rev. St. Maine, 1883; Sec. 18, Ch. 142, Pub. St. Mass. 1882; Sec. 3132 Hill's Code Ore. 1S92.) If the sale has been confirmed it is valid under these stat- utes, as to a bona fide purchaser, if there was a legal license, 234: VOID JUDICIAL AND EXECUTION SALES. bond, oath, notice of sale, and sale pursuant to the notice, notwithstanding the fact that irregularities in other particu- lars may have intervened. But on the contrary, where one or more of the requirements of the statute have not been com- plied with, the sale and title may be drawn in question by an heir or ward, or by one holding under them, in a collateral action. As to the five essentials mentioned in the statute the proceedings are adversary to the heir or ward, ami compli- ance therewith is imperative and mandatory. (Hubermann v. Evans, 46 Neb. 784 — 65 X. W. Rep. 1045; .Montour v. Purely. 11 Minn. 3S4 — 88 Am. Dor. s L s : Larimer v. Wallace, 36 Neb. 444_54 N. W. Hep. 835; Walker v. Goldsmith. 14 Ore. 125 — 12 Pac. Pep. 537: Gager v. Henry, 5 Sawyer, 237; Hobart v. Upton, 2 Sawyer, 302; Weld v. Johnson Mfg. Co., S4 Wis. 537 — 54 N. W. Pep. 335: Pumrill v. Bank, 28 Minn. 202 — 9 N. W. Pep. 731; Mohr v. Porter. 51 Wis. 487 — S X. W. Rep. 364; Curran v. Kuby, 37 Minn. 330 — 33 X. W. Pep. 907; Showers v. Robinson, 43 Mich. 509 — 5 X. W. Rep. 988; Davis v. Hudson, 29 Minn. 27 — 11 X. W. Pep. 136; Pratt v. Hotal- ing, 45 Mich. 459 — 8 X. W. Rep. 72; Land Co. v. Kurtz. 45 Minn. 380 — 47 X. W. Rep. 1134; Hartley v. Croze, 38 Minn. 325 — 51 X. W. Rep. 915; McGrubb v. Bray, 36 Wis. 333; Ryder v. Flanders, 30 Mich. 343; Stewart v. Bailey, 2S Mich. 251; Osman v. Traphagen, 23 Mich. 80; Jenness v. Smith, 58 Mich. 2S0 — 25 X. W. Rep. 191.) Failure to Give the Sale Bond Required. § 253. As a general rule great strictness is required by the courts in the compliance with the several essentials enumer- ated in the statute. Thus it is held that where the fiduciary failed to give the bond as required by law the sale is void and that the nullity thereof may be successfully shown in a collateral attack. (Weld v. Johnson Mfg. Co., 84 Wis. 537 — 54 X. W. Pep. 335; Wil- liams v. Morton, 38 Me. 47 — 61 Am. Dec. 229; Tracy v. Roberts, 88 Me. 310 — 34 Atl. Rep. 68; Williams v. Peed, 5 Pick. 480; Babcock v. Cobb, 11 Minn. 347; Bachelor v. Korb, 78 X. W. Rep. 4-5. Though in Indiana the proceedings of sale by a guardian can not be impeached in a collateral action for a failure to furnish such bond, while in a direct proceeding the sale will be held void if no additional bond to secure the proceeds of sale is given, and the purchase money is not accounted for by the fiduciary. (Marquis v. Davis, 113 Ind. 219 — 15 X. E. Rep. 251; Davidson v. Bates, 111 Ind. 391 — 12 X. E. Rep. 687; McKeever v. Ball, 71 Ind. 398.) HEALING STATUTES AND THEIK EFFECT. ~35 Failure to Take the Oath Prescribed. § 254. A compliance with the requirement of statute as to the oath is imperatively essential to the validity of the sale. Hence it has been held that the oath must be taken and subscribed before fixing on the time and place of sale under the license of the court; and if the oath is taken after such time though before the sale is actually made it is held that the notice of sale is unauthorized and extiajudicial, and the sale void in consequence thereof. (Ryder v. Flanders, 30 Mich. 33G.) And in Nebraska in a late case it is held that the statute is mandatory and exact compliance therewith imperative, The failure of a guardian licensed to sell the real estate of his ward to take and subscribe the oath required by the statute before facing on the time and place of sale, renders the sale, if made, void. (Bachelor v. Korb, 78 N. W. Rep. 485.) And in Wisconsin where the time and place was fixed be- fore the oath was taken, but the sale was made subsequent thereto, the proceedings were decided invalid, the court say- ing: " The provision, however, is peremptory, that the oath required shall be taken before fixing the time and place of sale. Can the court say, in view. of language so explicit, that the oath need not be taken before fixing on the time and place of sale, but may be taken at any subsequent time \ We think the court has no right to take such liberties with the statute, and disregard a requirement so plainly expressed, even to sustain a sale otherwise regular. To do this would be to assume the province of the law-making power ". (Blackman v. Baumann, 22 Wis. 613.) A substantial compliance with the provision of the statute in this regard is required in Minnesota, though a total failure to comply with it may be shown in a collateral action, because the provision is imperative. (Hugo v. Miller. 50 Minn. 105-52 N. W. Rep. 381; Davis v. Hudson, 29 Minn. 27 — 27 N. W. Rep. 136; Montour v. Purdy. 11 Minn. 384 — 88 Am. Dec. 88.) Failure to Give the Notice. § 255. The notice mentioned as one of the five essentials is as necessary to a valid sale under these statutes as any one 236 VOID JUDICIAL AXD EXECUTION SALES. of the other requirements, and must be given in compliance with the statute or else the sale is void. Thus the sale was held void and no title was passed thereby, where the notice merely named the town and county in which it was to be made, as this was not a compliance with the requirement of the statute in stating the time and " place " of the sale. (Hartley v. Croze, 38 Minn. 375 — 51 N. W. Rep. 015.) The statute requiring the notice of sale to be published " for three weeks, successively, next before such sale ", a pub- lication " for three successive weeks previous ", to the sale is insufficient to support the sale, and the land may be re- covered from the purchaser in a collateral action of eject- ment. (Montour v. Purdy, 11 Minn. 278 — 88 Am. Dec. 88.) The decisions of courts in the other states having statutes of a similar nature are substantially to the same effect, the want of the notice avoiding the sale, though a defective notice, on general principles will not be fatal. (McGrubb v. Bary, 36 Wis. 333; Tracy v. Roberts, 88 Me. 310 — 34 Atl. Rep. 68; Nott v. Sampson Mfg. Co., 142 Mass. 479 — 8 N. E. Rep. 406.) In Minnesota it is held that if the license is granted by the proper court to the fiduciary it is wholly immaterial so far as the validity of the sale is concerned that it is or is not founded upon a proper petition therefor, (Rnmrill v. Bank, 28 Minn. 202 — 9 N. W. Rep. 731.) while in Wisconsin it is held that a valid petition is essential to call the jurisdiction of the court into existence. (Schafer v. Luke, 51 Wis. 669 — 8 N. W. Rep. 857.) The Sale Must be Confirmed. § 256. Confirmation being one of the five essentials re- quired by the statute no valid sale and conveyance can be made unless the sale is reported back to the court and in- dorsed by it by virtue of the order of confirmation. (Jannes v. Pmith, 58 Mich. 280 — 25 N. W. Rep. 191; Larimer v. Wallace, 36 Neb. 444 — 54 N. W. Rep. 835.) In Minnesota it is held that the confirmation is sufficient in time if made after the execution of the guardian's deed to the land sold. (Dawson v. Helmes, 30 Minn. 107 — 14 N. W. Rep. 462.) HEALING STATUTES AND THEIB EFFECT. 337 And in that state it is held that the appointment of a guar- dian, under this prevision of statute 1 , not being a proceeding in reference to a guardian's sale, the validity of the appoint- ment is not collaterally assailable, (Davis v. Eudson, 29 Minn. 27—11 X. W. Rep. 136.) though in Michigan in a late case the court held that where administration is granted under a petition which shows on its face that the petitioner is not entitled to letters, a sale by him of the lands of the decedent under the order of the court is absolutely void. (Haug v. Piiiueau, 98 Mich. 91 — 57 N. W. Rep. 25.) Land Must be Purchased in Good Faith. § 257. The statutes also provide that the land must have been purchased in good faith, or are held by one who pur- chased them in good faith. A purchase, whether directly or indirectly, by the fiduciary himself can not be made in good faith under the policy of our law. Accordingly, if the guardian sells the ward's lands to a third person, who im- mediately thereafter reconveys the same to the guardian in- dividually for the same consideration, no title will pass by the proceeding. (Winter v. Truax, 87 Mich. 324 — 49 X. W. Rep. 604.) The statute in that state forbids an administrator, executor or guardian from purchasing or becoming interested in the purchase, either directly or indirectly, in any part of the lands sold by them, and declares a sale made in contravention of the statute in this regard void, which the courts have con- strued to mean void in a collateral action. (McGraw v. Daly. s2 Mich. 500 — 46 X. W. Rep. 671.) Though a diametrically opposite view is maintained in Wisconsin upon a statute of similar import, the supreme court of that state having construed the word "void" to mean voidable only at the instance of parties whose rights are prejudiced thereby. (Melms v. Pabst Brewing Co., 93 Wis. 153-66 N. W. Rep. 518.) Chapter IV. Sales Void by Reason of Errors or Omissions Subsequent to Judgment, Decree or Order of Sale. ANALYSIS. Section 258. General Rule as to the Effect of Irregularities — The In- forcement of a Judgment not a Judicial Act. 259. Irregularities will Generally not Make the Sale Void. 260. Directions in Decree Must be Pursued. 261. In Case of Special Healing Statute. 262. A valid Execution an Indispensable Requisite — Execu- tion Must Issue upon a Valid Judgment. 263. Must not Issue upon a Satisfied Judgment. 264. Must be Awarded by the Judgment or by Law. 265. Must be Sufficient and Emanate from the Proper Court. 266. Law Must Authorize Writ to Issue against Defend- ant. 267. Must Describe Parties and Show for Whose Benefit Issued. 268. The Writ of Execution Must be Sufficient in Form — Must Conform to Judgment in Amount and Substance. 269. When Writ Fails to Follow Judgment as to Parties. 270. Execution not Under Seal. 271. Sould Run in the Name of the State. 272. Essential Recitals in the Writ. 273. Limitations upon Issuance of Execution — At Common Law. - 274. Under the Statutes. 275. Issuance Pending Stay of Proceedings. 276. Consequences of the Premature Issuance of Execution — Issued in Violation of Statutory Inhibition. 277. Tudgment Must have been Rendered Before the Writ can Issue. 278. When Advantage Must be Taken of Premature Issu- ance of Writ. 279. Execution Issued after Death of Judgment Debtor — In Proceedings in the Nature of in rem. 280. Consequences of Issuance ofter Death of Sole Defend- ant. 281. Death of One Only of Several Defendants. GENERAL RULE AS TO EFFECT OF IRREGULARITIES. 230 Section 282. Execution [ssued after Death of Judgment Debtor — Is- sued Before, but Sale After, Death of Judgment Debtor. 283. Effect of Issuance of Execution After Death of Sole Judg- ment Creditor — Makes Writ at Least Irregular. 284. Sometimes Makes it Wholly Void. 285. Executions Supported by Dormant Judgment — Are Void- able Only as Between the Parties. 286. Intervening Rights of Third Persons. 287. Tn Case of Absolute Limitation and no Provision for Revivor. 2S8. Where Judgment Creditor is the Purchaser. 289. Sale under Satisfied Judgment — Is Void by the Weight of Authority. 290. Silence of Record and no Notice gives Title to Pur- chaser. 291. Effect of Reversal of Judgment upon the Sale Thereunder — Purchase by Stranger in Good Faith and Without Notice. 292. Defendant's Rights and Remedy upon Reversal. 293. The Pule also Applies to Judicial Sales. 294. Want of Jurisdiction Annuls the Sale in Any Event. 295. By Whom the Sale Must be Conducted — In Judicial Sales Generally by the Officer Designated in Decree. 296. In Execution Sales by the Officer to Whom the Writ is Directed. 297. Lands Located in Another County. 298. WMt in Officer's Own Favor. 299. Sales by Administrators, Executors and Guardians. 300. Sale by Agent of Commissioner. 301. Limitations on Time of Making Sale — Sales Noticed for and on Non-judicial Days. 302. Sale Made upon Day Other Than That Designated by Statute. 303. After Expiration of Active Energy of Execution. 304. Sale After Death of Debtor on Execution Issued Before. 305. Sale on Execution Issued After Bar of the Statute is Complete. 306. 'Execution Issued Before, but Sale Made After, Lien of Judgment Expired. 307. Where Judgment was Satisfied Before Sale. 308. Statute Repealed or Court Abolished Before Sale. 309. Property put in Hands of Receiver Before Sale. 310. When Sale Must be at Public Vendue — Under Executions and Decrees and Orders of Sales. 311. When levy an essential requisite — Not Necessary Where Judgment is a Lien on the Land. 312. Where Judgment or Decree Directs the Sale of the Property. 240 VOID JUDICIAL AND EXECUTION SALES. Section 313. Where Levy an Essential Requisite — Where Judgments are not General Liens. 314. On Personal Property under Execution. 315. Effect and Sufficiency of Levy. 316. Failure to Take Oath Concerning the Sale — Statutes Requiring Oath held Mandatory. 317. Effect of Failure to Give Additional Bond — Object of Re- quiring Such Bond. 318. Under Healing Statutes, Want of Bond is Fatal. 319. Where no Healing Statutes Exist, Want of Bond not fatal. 320. Effect of Want of Notice of Sale — The Object of the Notice of Sale. 321. Purchaser Free from Fault. 322. Fraud and Collusion Imputed to purchaser. 323. In Administrator's, Guardian's and Other Judicial Sales. 324. In States Having a Healing Statute Notice Essen- tial. 325. Notice an Imperative Requirement. 326. Notice May be Waived. 327. Time and Place Bids Receivable — Bid Must be Made at Time of Sale. 328. Plaintiff's Bid When no Other Persons Present. 329. Sales Made at an Improper or Unauthorized Place — In Judicial Sales an Irregularity Merely. 330. Execution Sales of Land Outside of County are Void. 331. Of Personal Property sold Under Execution. 332. Sales Without Appraisement or Inquisition — Are Void by the Current of Authority. 333. Are also Held Voidable Merely. 334. Waiver of Appraisement. 335. In Sales by Administrators and Guardians. 336. Sales to Raise Excessive Amount — Makes the Sale Void- able merely. 337. Makes the Sale Void. 338. Sometimes Held to Make Probate Sale Void. 339. Sale of Excessive Quantity — Sometimes Held to Make the Sale Void. 340. Is an Irregularity Making the Sale Voidable Merely. 341. Sales of Property or Interest not Liable — Of Third Per- son can not be sold. 342. Naked Legal Title Only Held by Judgment Debtor. 343. Sale <>f Homestead is Void. 344. Sale of Land not Embraced in the Order of Sale. 345. Sale of Exempt Personal Property is Void. 346. Property of Municipal Corporation. 347. Community Interest for Separate Debt of One Spouse. GENERAL RULE AS TO EFFECT OF IRREGULARITIES. "ill Section 348. Sales <>t' Partial Estate, or of Different Interest — Where Execution Defendant is Owner of Entire Fee. 349. Sales in Probate Proceedings. 350. Sale of Property Subject to Mortgage. 351. Sales of Land in Adverse Possession — At Common Law- was Void. 352. Void Cinder Process of Law. 353. Does not Affect Execution of Judicial Sale.-. 354. Indefinite or Undesignated Trad Sold — If Inherently Defective in Description Sale Void. 355. Effect of Inadequacy of Price — .Mere Inadequacy alone no* Sufficient to Avoid a Sale. . 356. . Gross Inadequacy Sometimes held Sufficient to Avoid Sale. 357. Inadequacy Coupled with Irregularities. 358. Sales in solido — Are Usually Considered Voidable Only. 350. Also Considered to Make the Sale Void. .300. Combinations and Devices to Prevent Competition- — Stifling Bidding is Fraudulent and .Makes Sale Invalid. 361. No Title will Pass to the Fraudulent Purchaser. 362. Sales of Disqualified Purchasers — Are Against Pub- lic Policy. 363. Declared Void by Statute in Some States. o(;4. Direct Purchase of Fiduciary is Void. 365. Purchase by Sheriff or Constable. 366. Purchases by Judges or Attorneys in the Case. 367. Purchase by Administrator after the Sale. 36S. Secret Frauds and Infirmities Ineffectual on Title of Pur- chaser — Fraud Vitiates the Sale. 369. Purchaser Free from Negligence and Fraud is Pro- tected. 370. Judgment Creditor not an Innocent Purchaser. 371. Property Charged with Liens and Trusts. 372. Innocent Purchaser from Fraudulent Vendee. 373. Judgment in Fact Satisfied, but Record Silent. ."74. Misappropriation of Purchase Money. 375. Purchase Money not Fully Paid. 376. Omission of Return or Defective Return. 377. ■ Purchase Money Must be Paid to Proper Officer. 37S. Pre-existing Equities and Unrecorded Deeds. (IKXERAL EULE AS TO TTTE EFFECT OF IKKEGU- LAKITIES. ' The Enforcement of a Judgment not a Judicial Act. § 258. Irregularities produced in the exorcise 1 of minis- terial authority in the conduct of the sale will he the chief 16 ■'. 12 VOID JUDICIAL AND EXECUTION SALES. consideration to which the present chapter will be devoted. The rendition of the judgment or the making of the order, decree or license of sale, is manifestly a purely judicial act, whereby the court enunciates a judicial declaration of the sentence of the law upon the facts involved, pursuant to the peculiar issues joined by the contending litigants, or the state of the record. Accordingly, the exercise of the power of pronouncing it is judicial as contra-distinguished from the authority which i- exercised in the enforcement of such judg- ment, license, order or decree, which is chiefly ministerial. In some instances, as in execution sales where no confirma- tion is required by the provisions of the statute, the exercise of authority is purely ministerial, the sheriff's right to sell and convey under the writ being a mere naked power given by statute, the foundation of which is the judgment itself. The execution is merely the process of the court authorizing the enforcement of the judgment and a direction to the officer to proceed with its enforcement. (Blatchford v. Conover, 40 X. J. Eq. 205 — 1 Atl. Rep. 16 — 7 Atl. Rep. 354: Todd v. Philhower, 24 X. J. L. 796; Shortzell v. Martin. Hi Iowa. 519: Foreman v. Hunt, 3 Dana, 014; Den v. Zellers, 2 Hal.st. 153; Den v. Mulford, 1 Zab. 500.) Irregularities Will Generally not Make the Sale Void. ^ 259. Upon the rendition of the judgment, or order of sale, the judicial functions of the court generally cease, and the enforcement thereof is generally accomplished prin- cipally through the instrumentality <>f the functionaries of the court, exercising in this regard, ministerial authority. It is in the execution of this power that many trifling as well as serious errors and omissions occur which impair the validity of execution, chancery and probate sales, and for which infirmities courts adjudge them void. The conclusion deduced from the consensus of all judicial enunciation- is, that with respect to mere errors or irregularities occurring in the proceedings of sale a- conducted by the ministerial func- tionary of the court, the title of the purchaser, to whom no fanlt can lie imputed, can not be determined at law or in equity. The correction of errors or irregularities with which a sale may he impregnated nm-t be accomplished in a proceeding directly instituted for th.it purpose, either in the original case GENERAL RULE AS TO EFFECT OF [RREGTJLARITIES. 243 or by separate action in equity. If this method is not pur- sued to obtain the correction, any errors or irregularities are wholly unavailable as a means to overthrow or question the title of the purchaser thus acquired, in a collateral proceed- ing This general rule obtains whether the sale is consum- mated under an execution, or under an order, lieense or decree, of the probate or chancery court. Jurisdiction having once been properly conferred, accord- ing to a principle of law deeply founded in reason and settled beyond the cavil of dispute in the jurisprudence of our law, the sale is impregnable upon an attempt at collateral im- peachment, for mere defects or irregularities, with which it may be beset, occurring from an erroneous or defective exer- cise of such jurisdiction. With the exception of those essen- tials enumerated in the statutes of several states in regard to sales by administrators, executors and guardians, the ac- quisition of jurisdiction unalterably precludes collateral inquiry, for the sale is then impervious to such an attack. (Van Matre v. Sankey, 148 111. 536-36 N. E. Rep. 628; Carden v. Lane 48 Ark 216 — 2 S. W. Rep. TOO; McCullough v. Estes, 20 Ore. 349-25 Pac. Rep. 724: Morrill v. Morrill, 20 Ore. 96-25 Pac. Rep. 362; Swift v. Yanaway, 153 111. 197-38 N. E. Rep. 589; Stotts v. Brookfield, 55 Ark. 307-18 S. W. Rep. 179; People v. Seelye, 146 II. 189 _32 N E. Rep. 45S; Mills v. Lombard, 32 Minn. 259 — 20 N. W. Rep 187; Ferguson v. Quinn, 123 Pa. St. 337-16 Atl. Rep. 844; Levan v Millholland, 114 Pa. St. 49-7 Atl. Rep. 194; Kennedy V. Baker, 159 Pa St 146 — 28 Atl. Rep. 252; Durham v. Heaton, 28 111. 264 - SI Am. Dec 275- Walker v. McKnight, 15 B. Mon. 467-61 Am. Dec. 190; Byers v Fowler, 12 Ark. 218-54 Am. Dec. 271; Case v. Gregory, 13 B Mon. 505-56 Am. Dec. 581; Sydnor v. Roberts, 13 Tex. 598-65 \m Dec. 84; Whitman v. Taylor, 60 Mo. 127: Edwards v. Ealbert, 64 Tex. 667; Fowler v. Poor, 93 N. C. 466; Cooley V. Wilson, 42 Iowa. 425; Hedges v. Mace. 72 111. 472.) But a direct proceeding instituted for the purpose of im- peaching the title of a purchaser other than the judgment creditor, for intervening errors, is as clearly a collateral pro- ceeding as if the action were one at law in ejectment for the recovery of the premises. (Carden v. Lane. 4S Ark. 216-2 S. W. Rep. 709; Swift v. Yanaway, 153 m. 197 — 38 N. E. IN-p. 589; Moore v. Neil, 39 111. 256.) Tn technical judicial sales, and in sales under execution in those states where confirmation is a statutory requisite, all irregularities with which the sale may he environed, happen- 244 VOID JUDICIAL AXD EXECUTION SALES. ing subsequent to the judgment or decree, are cured by the order of confirmation, 1 which concludes all subsequent in- quiry, save by appeal or by direct action in a court of equitable cognizance when fraud, accident or mistake can be charged. Much confusion and an interminable contrariety of judicial opinion is found regarding sales in probate which numerically exceed all other judicial sales. The conflict is partly due to the heterogeneity of statutory regulations in the different states, and partly to the extreme hostility with which some courts regard such sales. The tendency is how- ever toward relaxation, extending equal indulgence to these as to general chancery sales. Tn fact in some of the states probate and chancery sales are placed upon an equal footing. Accordingly, where the more liberal and indulgent rule prevails in administration sales, mere irregularities, not affecting the jurisdiction of the court, will not be considered as of vitiating consequence to the title of the purchaser, any •more than it will in sales in chancery. The rights of the purchaser at such sales, who has invested his money upon the faith of a decree of a court of competent jurisdiction, are of equal magnitude and commensurate justness to those of the heir. Hence, jurisdiction existing and no irreconcilability beimr disclosed between it and the record, the proceedings of sale are conclusive upon collateral attack. Any other rule, it would seem, would be alike absurd and immeasurably injurious in its consequences in the maintenance of valid titles. (Lyons v. Hamner. S4 Ala. 197 — 4 So. Rep. 2fi : Swift v. Yanaway, 153 111. 197 — 38 X. 1-:. Bep. 589: People v. Seelye, 146 111. 189 — 32 X. E. Bop. 4.-- Satcher v. Satcher, 41 Ala. 20 — 91 Am. Dec. 49--. Eppinper v. Robinson. 21 Ela. 36; Ranis v. Lester, 80 111. 307; Price v. Winter. 15 Fla. G6.) Directions in Decree Must be Pursued. § 260. In some cases it is stated as a general rule that a sale made under a decree in equity must pursue the direc- tions therein contained, and that a material departure from such directions in the conduct of the sale renders it void. (Cofer v. Miller. 7 Bush, 545; Williamson v. Berry, 8 How. 544; Jarboe v. Colvin, 4 Bush, 70.) However, before fhi^ rule can be invoked, on principle and authority, the departure must be of a very material char- GENERAL RULE AS TO EFFECT OF IRREGULARITIES. 245 acter and of such nature that it is not cured by the order of confirmation which was entered in due form by the court having authority to enter it. (Welch v. Louis, 31 111. 440; McGavoek v. Bell, 3 Coldw. 512. Unless the departure involves a matter of important ma- teriality within the category of defects which are not ad- judicated and cured by the order of confirmation properly entered upon the report of the sale, a departure from the order or decree of sale does not produce a fatal infirmity in the sale, and therefore does not expose it to impeachment in a collateral proceeding. And even in case of a material departure, if it is such a departure as might have been origi- nally incorporated in the decree, the defect is cured by the order of confirmation. (Hamman v. Mink, 99 Ind. 279; Robertson v. Smith, 94 Va. 250 — 26 S. E. Rep. 579; Conover v. Musgiove, 68 111. 58; Langyher v. Patter- son, 77 Va. 470; Jacob's Appeal, 23 Pa. St. 477; Lancaster v. Wilson, 27 Gratt. 624; McGavoek v. Bell, 3 Coldw. 512; Hess v. Baker, 26 Gratt. 746.) In Case of Special Healing Statutes. § 261. In some of the states where special healing statutes have been enacted providing that when certain things appear to have been done in the case of sales by administrators, executors and guardians the sale shall not be avoided by an heir or ward, a different rule obtains by virtue of such statutes. Thus, it is held that if any of the enumerated essentials have been omitted, such as the omission of giving an additional or sale bond, taking the oath or giving the notice of sale, the sale is held void. Ordinarily, in the absence of statute, these omissions are at most but mere irregularities, and under a rule well settled, could not make the proceedings of sale a nullity after confirmation. (Weld v. Johnsi n Mfg. Co., 84 Wis. 537 — 54 N. W. Rep. 335; Melius v. Pfister, 59 Wis. ISO— 18 X. W. Pep. 255; Williams v. Morton, 38 Me. 47 — 61 Am. Doc. 229; Babcock v. Cobb, 11 Minn. 347; Ryder v. Flanders. 30 Mich. 336; Montour v. Purely, 11 Minn. 384 — 88 Am. Dec. 88; Walker v. Goldsmith, 14 Ore. 125 — 25 Pae. Rep. 537; McGrubb v. Bray, 36 Wis. 3:;:; : Williams v. Reed, 5 Tick. 480; Tracy v. Roberts, 88 Me. 310 — 34 Atl. Pep. 68; Hartley v. Croze, 38 Minn. 3,75 — 51 X. W. Rep. 915; Bachelor v. Korb, 78 N. W. Rep. 485.) 246 VOID JUDICIAL AND EXECUTION SALES. A VALID EXECUTION AX INDISPENSABLE REQUISITE. Execution Must Issue Upon a Valid Judgment. § 262. In suits at common law for money judgments, no confirmation being required subsequent to sale, the functions of the court terminate upon the rendition of the judgment. To enforce the judgment a writ of execution or fieri facia*. emanating from the judicial tribunal wherein the judgment was rendered, and founded upon it, is necessary, for with- out a writ there is no authority vested in any officer to enforce it. A sale of the judgment defendant's property in the absence of an execution is manifestly unwarranted and plainly void, notwithstanding by provision of statute the judgment itself is made a general lien upon the property thus sold. This proposition is so axiomatic as to preclude the necessity for further argument. The judgment being the foundation upon which the entire proceedings of sale are based, must not only be perfect in form and final in nature, but must also be invulnerable- upon collateral attack at least: therefore, a void judgment being subject to collateral impeachment by reason of inherent infirmity will be insufficient to sustain the writ or sale and impregnates all subsequent proceedings with similar ingredi- ents of invalidity, not alone depriving the purchaser of title but also leaving him without a remedy for his misfortune. A void judgment furnishes no justification for acts done under it, nor will it constitute a foundation for acquiring rights: and by analogy, can divest no rights. The whole proceedings are coram non judice and void and may be ques- tioned anywhere and everywhere and by everybody. (Bullard v. McArdle, 98 Cal. 355 — 33 Pac. Rep. 193; Olson v. Xun- nally. 47 Kan. 391 — 2S Pac. Rep. 149: Mdlwain v. karstens. 152 111. 135_38 X. E. Pep. 555; McCracken v. Flanagan, 141 X. Y. 174 — 36 N. E. Rep. 10; Real Kstato Co. v. Bendrix, 28 Ore. 4S5 — 42 Pac-. Pep. 514-. Anderson v. Gray, L34 111. 550 — 25 N. E. Rep. 843; Hollingsworth v. Bagley, 35 Tex. 345; Mining Co. v. Mining Co.. Ill 111. 32; Truetl v. Legg, 32 Mil. 150; Roberts v. Stowers, 7 Bush, 295: Meyer v. Mintoyne, 106 111. 414; Morton v. Root, 2 Dill. 312; Hargis v. Morse, 7 Kan. 417.) By analogy, the issuance of a writ of execution upon a void judgment is equivalent to the issuance of the writ in A VALID EXECUTION AN INDISPENSABLE REQUISITE. 2-17 the total absence of judgment, both being unconditional nullities. (Nabours v. Cocke, 24 Miss. 44; Chase v. Dana. 44 111. 262; Roberts V. Stowers, 7 Bush, 295; Johnson v. Baker, 3S 111. 98; .Morris v. Hogle, 37 111. 150.) Or, if from any cause the judgment has become incapable of enforcement by execution, or if some of the parties have died without a subsequent revivor, and execution is never- theless issued, there are many cases holding that no authority will be conferred upon the officer thereby, and accordingly, the proceedings thereunder are void. The officer's authority invariably depends upon the character and validity of the process which justifies his actions. (Oldfield v. Eulert, 148 111. 614-36 N. E. Rep. 615; Mclhvain v. Karstens, 152 111. 135 — 38 N. E. Rep. 555.) Must not Issue Upon a Satisfied Judgment. § 263. Payment of the judgment inevitably produces satisfaction and destroys its legal efficacy as such, as well as terminates the lien of the same created by implication of law ; accordingly, the judgment must not be satisfied before the writ issues. (Boos v. Morgan, 130 Ind. 305 — 30 N. E. Rep. 141; Insurance Co. v. Vanlue 120 Ind. 410 — 26 N. E. Rep. 119; Chapin v. McLaren, 105 Ind. 5G3-5 N. E. Rep. 68S; Doe v. Ingersoll, 11 S. & M. 249 — 49 Am. Dec. 57- Murrell V. Roberts. 11 Ired. 424 — 53 Am. Dec. 419; Wood v. Colvin, o Hill, 506 — 38 Am. Dee. 5S8; Drefahl v. Tattle. 42 Iowa, 177; Shields v. Moore, 84 Ind. 440; French v. Edwards, 5 Sawyer, 266; Finley v. Gaut, 8 Baxt. 148.) It is a generally conceded rule that the purchaser at an execution sale gets no better title than the judgment can actually confer upon him, and in conformity to this princi- ple, if the judgment be satisfied although the record fails to disclose this state of facts, a bona fide purchaser under an execution issued upon such satisfied judgment gets nothing by his purchase. (Clute v. Emerick, 99 N. Y. 342-2 X. E. Rep. 6; Frost v. Bank, 70 N . y. 553-26 Am. Rep. 627; Craft v. Merrill. 14 N. Y. 456; Carpenter v. Stilwell. 11 N. V. 61.) But a writ issued upon a dormant judgment is merely voidable and the sale thereunder may be avoided, but can not be collaterally impeached as it is not an absolute nullity 248 VOID JUDICIAL AXD EXECUTION SALES. (Gardner v. Kail way Co., 102 Ala. 635 — 15 So. Rep. 271; Gillespie v. Switzer, 43 Neb. 772 — 02 IS. W. Rep. 228; Diaper v. i\ixon, 93 Ala. 436 — 8 So. Rep. 489; Eddy v. Coldwell, 23 Ore. 163 — 31 Pac. Rep. 475; Yeager v. Wright, 112 Ind. 230 — 13 N. E. Rep. 707; Gerecke v. Camp- bell, 24 Neb. 306 — 38 N. W. Rep. 847.) Must be Awarded by the Judgment or by Law. § 264. The issuance of the execution is merely a minis- terial act, though the awarding of the same has been con- sidered as the exercise of a judicial function. Consequently, if the judgment itself, in contemplation of law, does not award the execution, which however it generally does, the writ can not issue except upon special order of the proper court, and it must be issued by the proper officer in any event. (Evans v. Ethridge. 96 N. C. 42 — 1 S. E. Rep. 633 ; Kyle v. Evans, 3 Ala. 481 — 37 Am. Dee. 705; Furman v. Dewall. 35 Iowa. 170; Perry v. Whipple, 38 Vt. 27S; Seaton v. Hamilton, 10 Iowa, 394.) And by analogy a forged writ, though apparently perfect and authentic, is unauthorized because not issued by the proper officer ; or if it is spurious in any material part it vitiates the writ. (Silvan v. Coffee, 20 Tex. 4—70 Am. Dec. 371.) Must be Sufficient and Emanate from the Proper Court. § 265. The execution being the process under which the sale is made, it must be valid, or else no title can be acquired under it, even if the sale does receive the judicial sanction of the court by confirmation, (Lamaster v. Keeler, 123 U. S. 376 — 8 Sup. Ct. Rep. 197; Burt v. Hasselman, 139 Ind. 196 — 38 X. E. Rep. 59S.) and must emanate from the court wherein the judgment was obtained, in the absence of statutory authority at least. (Shattuck v. Cox, 97 Ind. 242: Clarke v. Miller, 18 Barb. 270; Field v. Paulding, 2 Abb. Pr. 1 Tf the writ of execution issued out of an abolished court it has no validity upon the plainest of principles: but when issued and seizure made before the abolition of the court, the sale may be subsequently consummated under the au- thority of the court to which the records and proceedings of the abolished court have been transferred. (Gorman v. People. 17 Colo. 596 — 31 Pac. Rep. 335; Chase v. Gas Co., 45 La. Ann. 300—12 So. Rep. 308; Norton v. Shelby Co.. 118 U. S. 425 — 6 Sup. Ct. Rep. 1121.) • A VALID EXECUTION AX [NDISPENSABLE REQUISITE. 249 Law Must Authorize Writ to Issue Against Defendant. § 266. It is absolutely essential that the person or corpo- ration be such as, under the law existing when the judgment was rendered, execution can be issued against. Therefore, if the judgment recovered againsl a municipal corporation, being ordinarily but the determination of a valid claim against it, no execution can be awarded upon it, and if erroneously issued may be quashed. (Petersburg v. Whitnack, 4s 111. App. 663; Gilmau v. Contra Costa Qo M 8 Cal. 52—68 Am. Dec. 290; Village of Kansas v. Juntgen, 84 111. 360; I'.loomington v. Brokaw, 77 111. L94; Emerick v. Gilman, 10 Cal. 404 — 70 Am. Dec. 742; Wilson v. Commonwealth, 7 \Y. £ S. L97; Supervisors v. Edwards, 76 111. ."44.) And generally the same rule applies to judgments re- covered against administrators and executors as such upon a cause of action which accrued against the decedent or intes- tate. (Bull v. Harris, 31 111. 487; Hone v. Spivy, 44 Ga. 616.) Must Describe Parties and Show for Whose Benefit Issued. § 267. Manifestly, a writ which fails to show for whose benefit it was issued, nor upon what judgment or decree it is founded, nor out of what tribunal it emanated is so fatally defective that no title can arise from any proceeding's of sale thereunder. (Brown v. Duncan, 132 111. 413 — 23 X. E. Rep. 1121).) It is held under a statute requiring a correct description of the judgment and parties, in the execution, that the sale is void if the writ mentions but one of the several parties composing the firm in whose name the judgment was entered and stands. (Irvin v. Ferguson, 83 Tex. 491 — 18 S. W. Rep. 820; Cleveland v. Simpson, 77 Tex. P<'» — 13 S. W. Rep. 851.) The fact that the execution calls for an excessive amount has been held sufficienl to render the writ void; (Prescott v. Prescott, (',:.' Me. 128; Hastings v. Johnson, 1 Nev. 613.) though this is generally held not to he a fatal defect, hut may be remedied by setting the writ aside to the extent of the excess. (Bogle v. Bloom, 36 Kan. 512 — 13 Pae. Rep. 793; Anderson v. Gray, 134 hi. 550 — 25 X. E. Rep. 843; Bachelder \. ( haves, :. N. M. 5o2 — 25 Pac. Rep. 783.) 250 VOID JUDICIAL AND EXECUTION SALES. THE WRIT OF EXECUTION MUST BE SUFFICIENT IN FOEM. Must Conform to Judgment in Amount and Substance. § 268. It is an inherent power lodged in every court to issue fieri facias upon its own judgments. The writ of exe- cution is issued upon a judgment or decree for the purpose of enforcing it, and is the final process in the suit, being an authority emanating from the commonwealth. Accordingly, CO be effective it is indispensable that it contains the descrip- tion of a judgment and disclosing upon its face the authority for its issuance. Consequently it is essential that it pur- ports to emanate from competent authority. It is a para- mount requisite that there be no substantial defects in the form of the writ, and it must embody a direction to the officer who receives it for execution to proceed to obtain satis- faction of the judgment upon which it is founded. There- fore, it is a general rule that conformance to the judgment is imperative, and a material variance therefrom vitiates the writ. While the principle is susceptible of comprehension without difficulty, its application is environed with inter- minable perplexities and enveloped with a bewildering con- flict of judicial enunciations. Errors or omissions of merely formal parts of a writ will not render it void though it may be voidable for this reason. So it has been held that a misdescription by way of a recital of a judgment in an excessive amount is equivalent to the case of no judgment, the variance being considered material and fatal to the writ, (Preseott v. Prescott, 62 Mr. 42S; Hastings v. Johnson. 1 Nov. 613.) while on the other hand a similar defect is considered nothing but a mere irregularity, not of sufficient gravity to destroy the identification of the judgment, and the writ is voidable only in consequence thereof. (Bogle v. Bloom, 36 Kan. 512 — 13 Pac. Rep. 793; Anderson v. Cray. L34 111. 550 25 X. E. lop. S43; Bachelder v. Chevas, :> N. M. :>c.2 — 2. r , Pae. Rep. 7-:;: Dickens v. Crane. 33 Kan. 344- 6 Pac. Rep. 030; Railway Co. v. Rierson, 38 Kan. 359 16 Pae. Rep. 443.) When Writ Fails to Follow Judgment as to Parties. § 269. There is much contrariety among the adjudicated cases as to the effect of a variance between the execution and WRIT OF EXECUTION MUST BE SUFFICIENT IN FORM. 251 the judgment as to the parties plaintiff or defendant. Tims, it is held in Texas thai a sale und r an execution against a defendant reciting his Christian name incorrectly will not pass the title to property owned by the judgment defendant, the variance between the writ and judgment being consid- ered material and fatal. (Battle v. Guedry, 58 Tex. 111.) And the variance in an execution upon a judgment against a partnership directed against not only the partnership but also the individual members thereof, not as members but as distinct persons, was held fatal. (Clayton v. May, 68 Ga. 27.) But diametrically the opposite doctrine is asserted in New Hampshire. (Vogt v. Ticknor, 48 X. H. 242.) Xd title is acquired by a purchaser upon a sale under an execution which was issued in the name of one only of a partnership upon a judgment recovered in favor of the firm. (Cleveland v. Simpson. 77 Tex. 96 — 13 S. W. Rep. S51.) In Tennessee it is held that it is merely an irregularity that the execution fails to follow the judgment by omitting the name of one of the defendants; in a proceeding for that purpose the writ may be quashed for that reason, but a sale under it will pass title to the purchaser. (Lee v. Crossna, 6 Humph. 281.) In a late case in Illinois it is held that a variance between the Christian name of the nominal plaintiff in the judgment and in the execution issued thereon is not fatal if it appears from the whole record that the writ was in fact issued under the judgment. (Anderson v. Gray, 134 111. 550 — 25 N. E. Eep. 843.) By the current of authority an execution should follow and conform to the judgment, yet an amendment may be allowed if the writ can be so identified with the judgment and the record on which the judgment is founded that the court can find data by which to make the amendment. Tims. where the execution is issued upon a judgment in favor of one in a fiduciary capacity, recites a recovery by him person- ally, and the record shows this to be a clerical error merely, 252 VOID JUDICIAL AXD EXECUTION SALES. an amendment will be allowed as of course and the writ treated as amended in the trial of a writ of entry to recover the land sold on the execution. (Holmes v. Jordan. 163 Mass. 147 — 39 N. E. Rep. 1005; Dewey v. Peeler. 161 Mass. 135 — 36 X. E. Eep. 800; Barnes v. Hayes. 1 Swan. 304.) Where there was an entire absence of any showing in whose favor the execution is issued it is held to be void be- cause wanting- in an essential and material part. (Cooper v. Jaeobs. 82 Ala. 411 — 2 So. Rep. 832.) As a general rule, the mistakes and variances as to parties and amount are amendable, and if no amendment is made, and no objection to the form is made by way of motion to quash or vacate the writ, it will be treated as valid, unless the variance is so great that no identity between it and the judgment which is produced in its support exists. (Hunt v. Loucks, 38 Cal. 372 — 99 Am. Dec. 404; Hunter v. Roach, 95 X. C. 106; Haskins v. Wallet. 63 Tex. 213; Alexander v. Miller, 18 T ex _ 049 _ 7n Am. Dee. 314: Harlan v. Harlan, 14 Lea, 107; Wilson v. Campbell, 33 Ala. 249 — 70 Am. Dec. 586.) Execution not Under Seal. § 270. Under statutes requiring all process to be under the seal of the court out of which it emanates, two views exist as to the effect where a writ lacks the seal, the one diametrically opposed to the other; thus it is held that where the provision of statute in this regard has been contravened - de i- void because the writ is void, the statutory pro- vision in this regard being held mandatory. (Weaver v. Tea-ley. 163 111. 251 — 45 X. E. Eep. 119; Mann v. Reed, 49 111. App. 406; Taylor v. Taylor. 83 X. C. 116; Roseman v. Miller, 84 7; Bybee v. Ashby, 2 Gilm. 151 ; Sidwell v. Schumacher, 99 111. 426.) On the other hand, conformable with the just principle prohibiting the sacrifice of substantial rights by the sub- mission of substance to mere matters of form, it has been held thai the omission of the seal of the court from the exe- cution is a mere irregularity rendering it voidable only, and subject to rectification by amendment after levy. (Warmouth v. Dryden, 125 hid. 355 — 25 X. E. Rep. 433; Ball v. Lachmond, 50 Ark. 113 — 6 S. W. Rep. 510; Taylor v. McCourtney, 15 Neb. L90 16 N. \Y. Rep. 842; Corwith v. Bank, is Wis. 560.) WRIT OF RXECDTTON MIST BE SUFFICIENT IN FORM. 253 Should Run in the Name of the State. § 271. In several states the provision of law requiring all process to run in the name of the commonwealth is held to be mandatory, and its (.mission is considered of an incurable (Forbes v. Darling, 94 Mich. 621-54 N. W. Rep. 385; McLendon v. State 92 Tenn. 520 — 22 S. W. Rep. 200; People v. Henckler, L37 til. 580-127 N E Rep. 602; Y/eager v. Groves, 78 Ky. 278; Curtis v. Mc- Cullough, 3 Nev. 202; Sims v. Bank, 3 W. Va. 415; Sidwell v. Schu- macher. 99 111. 426.) This seems to us to be purely a sacrifice of substance by a religious adherence to ancient traditions and form, and re- pugnant to the modern progressive policy of the law favoring amendment of process. But on the other hand, a contrary doctrine in this regard has elsewhere been promulgated, more in harmony with reason and sound in principle, considering the matter of style but formal, which should be preserved as such, for perpetuat- ing the idea of sovereignty, but not being a matter of sub- stance, a defect therein or its entire omission from the pro- cess simply makes it voidable. The constitutional provision requiring writs and process to run in the name of the state is construed to be directory only. (Moore V. Fedawa, 13 Neb. 379-14 N. W. Rep. 170; State v. Cas- sidy 4 S Dak. 58 — 54 N. W. Rep. 928; Shakman v. Schwartz. 89 Wis. 72 J.61 N W. Rep- 309; Portis v. Parker. 8 Tex. 23 — 58 Am. Dec 95; Hansford v. Hansford. 34 Mo. App. 263; Kahn V. Kuhn. 44 Ark. 404; Haley v Harris. 10 Wis. 95; State v. Foster, 61 Mo. 549; Hibbard v. Smith 50 Cal. 511; Doan v. Baley, 38 Mo. 449; Thompson v. Bickford, 19 Minn. 17; Hanna v. Russel, 12 Minn. 80: Carnahan v. Pell, 4 Colo. 190.) Essential Recitals in the Writ. § 272. In the matter of variance between the execution and the judgment the paramount and real question is that of identity. Accordingly, if from the face of the writ, con- sidered in connection with other facts which environ the transaction, it sufficiently appears that the object of the writ is the enforcement of the particular judgment in the action, this manifestly should be Biifficieni to sustain it, while all other variances are immaterial and should not be regarded as matters of any considerable gravity. When the writ sub- 254 VOID JUDICIAL AND EXECUTION SALES. stantially conforms to the judgment it is sufficient upon col- lateral assault, though subject to amendment if questioned in time ; (Hobson v. McCambridge, 130 111. 367 — 22 X. E. Rep. 823; Harlan v. Harlan. 14 Lea. 107; Taney v. Woodmansee, 23 W. Va. 709.) while if the departure is to the extent that it renders identifi- cation or connection between the judgment and the execution a matter of doubt, then the latter is unquestionably void and will not sustain a sale. (De Loach v. Robbins, 102 Ala. 288 — 14 So. Rep. 777; Sprott v. Reid. 3 G. Greene, 489.) Thus, when the execution fails to show on its face upon whose property it is to be levied, (Douglass v. Whiting, 28 111. 362.) or contains no recitation in whose favor it was issued or on what judgment it is founded or from what court it emanated, it is in contemplation of law, by reason of the defects, no execution ; (Brown v. Duncan, 132 111. 413 — 23 X. E. Rep. 1126.) and when it purports upon its face to emanate from a tri- bunal having no legal existence it is also void. (Chesebro v. Barme, 163 Mass. 79 — 39 X. E. Rep. 1033; Palmer v. Crosby, 11 Gray, 46.) Nor are inherent defects in the writ cured by indorse- ments thereon. (Cooper v. Jacobs, 82 Ala. 411 — 2 So. Rep. S32.) But identification of the judgment being apparent, a vari- ance by reason of a mere discrepancy in the date, I Franklin v. Merida, 50 Cal. 2S9 ; Daily v. State. 56 .Miss. 475; Xims v. Spurr, 138 Mass. 209; Davis v. Kline, 76 Mo. 310; Mills v. Lombard, 32 Minn. 259 — 20 X. W. Rep. 187; Swift v. Agnes, 33 Wis. 22S; Alex- ander v. Miller, IS Tex. 893 — 70 Am. Dec. 314; Bank v. Whitehall. 13 Vt. 395 — 37 Am. Dec. 600; Leibig v. Rawson. 1 Scam. 272 — 29 Am. Dee. 354: Stewart v. Severance, 43 Mo. 322 — 97 Am. Dec. 392.) or an error in the caption by stating the wrong county, i Davis v. Davis, 2 Gratt. 363.) are but irregularities capable of being amended. While the writ should always be directed to the proper officer, yet if it is not so directed and a levy is in fact made WRIT OF EXECUTION' MUST BE SUFFICIENT IN FORM. 2-">5 by the officer to whom it should have been directed, the mis- direction is a harmless error, amendable before sale, and having- no effect upon the validity of the sale or levy when once consummated. (Pecotte v. Oliver. 2 Idaho, 230 — 10 Pac. Rep. 302; Van Cleave v. Buchcv. 79 Cal. 600 — 21 Pac. Rep. 954: Hibbard v. Smith, no Cal. 511; Bank v. Franklin, 20 Kan. 264; Walden v. Davison, 15 Wend. 575.) Nor will a mistake in the execution of the name of the judgment creditor, and in the notice of sale be sufficient to avoid the sale when the judgment is otherwise correctly described. (Griffith v. Harvester Co., 92 Iowa. 634 — 61 N. W. Rep. 243.) In Texas it lias been held that a sale of land made by a sheriff of one county, under a venditioni exponas issued and directed to the sheriff of another county, is a nullity. (Terry V. Cutler, 39 S. W. Rep. 152 — 23 S. W. Rep. 539.) That the execution was made returnable in a period less than that by law provided was held fatal, the writ being void and no justification to the officer for seizing and selling prop- erty thereunder, (Fifield v. Richardson, 34 Vt. 410; Bond v. Wilder. 16 Vt. 393.) though an omission to recite the term at which the judgment was obtained, (Lewis v. Morrow, 98 Mo. 174 - 1 S. W. Rep. 93 ; Drawdy v. Lillifield, 75 Ga. 215.) or is directed against the wife alone upon a judgment against herself and husband jointly, (In re First National Bank. 49 Fed. Rep. 120.) or an entire omission of the name of the county from wdiich the writ was issued. (Elliott v. Hart, 45 Mich. 234 — 7 N. W. Rep. 812.) or the omission of the signature of the clerk to the writ issued by him, or the name of another person inadvertently at- tached, (Jett v. Shinn, 47 Ark. 373 — 1 S. W. Rep. 693.) are all held to be mere irregularities or clerical errors in form but not defects in substance, and when collaterally questioned therefor will be treated as amended. 256 VOID JUDICIAL AND EXECUTION SALES. LIMITATIONS UPON ISSUANCE OF EXECUTION. At Common Law. § 273. Under the common law the issuance of an execution within a year and a day after the entry of the judgment in a personal action was an imperative requisite for the preser- vation of the efficacy of the judgment. A dormant judg- ment was the inevitable consequence of a failure to attempt to enforce it within that time, and thereafter no writ could issue until scire facias was sued out by the plaintiff and judgment for the issuance of execution obtained upon it. The reason for this rule was, that by the failure to enforce the judgment for such a long time the presumption of release or satisfaction was raised, and hence the defendant is not to be harassed or disturbed thereafter by another writ without a proper opportunity of showing his reasons, if any he has, why execution should not issue. To give the judgment debtor such opportunity is the only legitimate purpose of the writ of scire facias. (Bowar v. Railway Co.. 136 111. 101 — 26 N. E. Rep. 702: Wilson v. Trustees, 13S 111. 2S5 — 27 N. E. Rep. 1103; Ingraham v. Champion. s4 Wis. 235 — 54 X. W. Rep. 39S; McRoberts v. Lyon, 79 Mich. 25 — 44 X. W. Rep. 160.) But a writ issued in violation of this rule is not a nullity, according to some authorities, (Riddle v. Turner, 52 Tex. 145.) while others hold it void as to the plaintiff who acquires no title under a sale thereunder. (Godbold v. Lambert. S Rich. Eq. 155 — 70 Am. Dec. 192; Haskins v. Helm. 4 Litt. 309 — 14 Am. Dee. 133.) Under the Statutes. § 274. Under some statutes the judgment creditor's right to an execution does not exist immediately upon the entry of the judgment; it is only after the expiration of a specified period that he is entitled to have the writ issued. As to what the consequences are when the writ has issued in contraven- tion of the statute in this regard, the authorities are not agreed. Thus in Massachusetts it is held that it is void and the sale thereunder a nullity. (Penniman v. Cole. 8 -Mi t. 496.) LIMITATIONS UPON ISSUANCE OF EXECUTION. Bui pursuant to the great weight of authority a writ thus issued in violation of the statute is irregular merely, and while erroneous and subject to being vacated by reason thereof by some proceeding prescribed by law, must never- theless be respected and may be enforced, until it is vacated. (Scribner v. Whitcher, 9 X. II. 63 — 23 Am. Dec. 70S; Stewart v. Stoker, 13 S. & R. 199—15 Am. Dec. 589; Miller v. O'Hannon. 4 Lea, 398; Stanley v. Nelson, 4 Humph. 4S3; Wilkinson's Appeal, 65 Pa. St. 190; Carpenter v. Bank. 1 Lea, 202; Dawson v. Daniel, 2 Flip. 305; Rosenfeld v. Palmer, 5 Daly, 318; Bacon v. Cropsey. 7 N. Y. 199.) In some states, after the period for issuing execution has expired, it can only issue upon the order of the court, upon motion therefor, and usually upon proof that the judgment is still unsatisfied, notwithstanding the limitation. (Pursel v. Deal, 16 Ore. 295 — 18 Pac. Rep. 461.) So at common law, after the issuance and return of the original execution, the plaintiff might have an alias writ issued, and subsequent to this pluries writs could be issued for the enforcement of the judgment. In some states general provisions of statute exist providing for the issuance of these writs, but in the absence of statute the right and propriety of issuing them is unquestioned under the common law prevailing in the absence of express legislative enactment. Sales based upon such writs are therefore as valid and regular as those founded upon the original execution. (Clark v. Reiniger, 66 Iowa. 507 — 24 X. W. Rep. 16; Walter v. Green- wood, 29 Minn. S7 — 12 X. W. Rep. 145; Yetzer v. Young, 3 S. Dak. 263—52 X. W. Rep. 1054.) An execution issued while another is still outstanding is an irregularity, but it is not for that reason a nullity, and the sale thereunder is not void. If there has been a levy made under the outstanding writ, the alias writ issued before such levy is legally disposed of, is irregular and voidable, and may be vacated upon motion before but not after the property is sold. (Atwood V. Bearss, 45 Mich. 469 — 8 X. W. Rep. 55; Richer v. Mer- ritt, 10S Ind. 347 — 99 X. E. Rep. 368; Mace v. Dutton. 2 Ind. 309 — 52 Am. Dec 510; West v. St. John, 63 Iowa, 2S7 — 19 X. W. Rep. 238; State v. Page, 1 Spear, 408 — 40 Am. Dec. 608; Kerr v. Commonwealth. 8 Biss. 276.) 17 258 VOID JUDICIAL AXD EXECUTION SALES. If two executions are issued at the same time upon the same judgment to different counties it is an irregularity merely, and a sale under either of them is voidable but not void. (At wood v. Bearss, 45 Mich. 469 — S N. W. Rep, 55.) Issuance Pending Stay of Proceedings. § 275. As in almost all cases of irregular executions, when the proceedings have been stayed by a supersedeas bond, there is a conflict of authority as to whether or not a sale under a writ erroneously issued in violation of the sale is roid or only voidable. Thus, in Nebraska and Pennsylvania it is held that when the proceedings are stayed no execution can lawfully issue during the time of such stay, and a sale under an execution issued in violation of the supersedeas bond is void, passing no title or right to the property as against the owner, because for the time being the court was without power to issue the writ which is void in consequence thereof. (Bank v. Green, 10 Neb. 130 — 4 N. W. Rep. 942; State Bank v. Green, S Neb. 297; Milliken v. Brown, 10 S. & R. 188.) While on the other hand other cases assert that the exe- cution, though having been erroneously issued, remains in force until the error is corrected in some authorized manner. (Shirk V. Railway Co.. 110 111. 661; Oakes v. Williams, 107 111. 154; Swigart v. Harber, 4 Scam. 364 — 39 Am. Dec. 41S.) CONSEQUENCES OF THE PREMATURE ISSUANCE OF EXECUTION. Issued in Violation of Statutory Inhibition. § 276. In several of the states statutes have been enacted prohibiting the issuing of execution until after the expira- tion of a specified period of time after the entry of judg- ment. Should however the writ issue in contravention of this inhibition, we are confronted with a question whereon mthorities are not entirely harmonious. The contention of some being to the effect that such a writ is void if a levy thereunder is made before the time has expired wherein the writ shall no1 issue, and the writ and levy being void, the . de is also void. (Penniman v. Cole, 8 - Met. 496.) CONSEQUENCES OF PREMATURE ISSUANCE OF EXECUTION. 2o9 Other adjudications are to the effect that where the writ is prematurely issued, but no levy or seizure is attempted thereunder until after the time has arrived when it might legally issue, it is not void and the proceedings are valid, upon the general principle that the judgment having been obtained in a competent court having acquired jurisdiction to render it, the improper issuing of execution to enforce it, like an imperfection in the document itself, is but a mere irregularity of insufficient moment to make the writ and proceedings thereunder void upon collateral attack. (Scribner v. Whiteher, 6 N. H. 63 — 23 Am. Dec. 70S; Stewart v. Stoker, 13 S. & E. 199 — 15 Am. Dec. 5S9; Lov2 — 4 So. Rep. 414; Perkins v. Iron Co., 77 Ala. 403; Elliott v. Holbrook, 33 Ala. 659.) 268 VOID JUDICIAL AND EXECUTION SALES. unless third persons have acquired rights in the property dur- ing the interim between the time the judgment became dor- mant and the issuance of the execution, who stand in a posi- tion to urge a similar objection, as a matter of necessity; but not third persons having acquired rights subsequent to the is- suance of the writ and subject to its lien. (Hastings v. Bryant, 115 111. 69 — 3 X. E. Rep. 507; Leonard v. Brewer, 86 Ala. 390 — 5 So. Rep. 306; Barth v. Bank, 115 111. 472 — 4 X. E. Rep. 509; Perkins v. Iron Co., 77 Ala. 403; Sandlin v. Anderson, 76 Ala. 403.) Under the Illinois statute limiting the duration of the judgment lien, it is held that with the expiration of the speci- fied period wherein the judgment is a lien, the validity of the execution and levy cease, and all subsequent proceedings, as far as bona fide purchasers or incumbrancers under the judg- ment debtor are concerned, are absolutely void; (Barth v. Bank, 115 111. 472 — 4 N". E. Rep. 509; Hastings v. Bryant, 115 111. 69 — 3 N. E. Rep. 507; Dobbins v. Bank. 112 111. 553.) and in Pennsylvania it is held that a judgment at the arrival of the statutory limitation loses its lien on real estate only as against other lien creditors or purchasers, though as to the defendant himself the lien still exists. (Shannon v. Norton. 132 Pa. St. 375 — 19 Atl. Rep. 138; Haddington v. Philadelphia, 108 Pa. St. 466; McCahan v. Elliott, 103 Pa, St. 634.) In Case of Absolute Limitation and no Provision for Revivor. § 287. Where there is no provision of statute for reviving the judgment, and where there is an absolute limitation to the lien of the judgment and issuance of execution, and no other provision exists for the enforcement of the judgment after the expiration of the time limited, the power of the court to issue execution is unconditionally at an end. Therefore, if the writ issues in contravention of this limitation it is mani- festly without authority and plainly devoid of legal efficacy. In contemplation of such statutes there is no judgment in existence after the expiration of the prescribed time — no lien against the property of the debtor or claim against him personally so as to establish a cause of action against him thereon — and hence no warrant in law for the existence of the writ. Mann v. Superior Court. 74 Cal. 106 — 15 Pac. Pep. 44S : Peters v. Yawtcr, 10 Mont. 201 — 25 Pac. Rep. 438; Ward v. Bank, 46 Mich. EXECUTION SUPPORTED BY DORMANT JUDGMENT. 269 oo 2 _9 N W. Rep. 437; Ballard v. Scruggs, 90 Term. 5S5-1S S. W. Rep 259; Parsons v. Circuit Court, 37 Mich. 287; Burton v. Delophun, 25 Mo MM'- 376; Rollins v. Mclntire, s7 Mo. 496; George v. Middou, 02 Mo. 549; Kearns v. Graves, 26 Cal. 150; White v. Clark. 8 Cal. Given* v. Campbell, 20 Iowa, 79; McGrew v. Reasons 8 I*j, 4 85; McDonald v. Dickson, 85 N. C. 248; Lyons v. Ross, 84 N. C. 588.) Manifestly such statutes must expressly provide for the termination of the lien and judgment and forbid subsequent action or proceeding thereon in any way, or else the ruling that the execution and proceedings are void, is wrong on prin- ciple Such judgments can not be considered dormant, but dead,' and therefore the statute providing for their termination is broader than the common law in this regard, and m contra- vention thereof, for under the common law rule the judgment was merely dormant if execution was not issued thereon within a year and a day after its entry. Where Judgment Creditor is the Purchaser. § 288 It will be seen that under the current of authority in America an execution purchaser under a writ founded upon a dormant judgment is not without protection As to him the proceeding are considered valid, unless the defendant utilizes the opportunity afforded him by interposing his mo- tion to quash the writ within a reasonable time, and failing to avail himself of this privilege promptly, the irregularity will be considered waived, and the proceedings unimpeachable thereafter, because of the debtor's own laches. Obvjondy, in accordance with the decided preponderance of authority, holding the writ voidable only, it is immaterial as to the validity of the proceedings of sale and resultant title, whether the judgment creditor or a third person becomesthe pur- chaser if no objections are made because the execution issued on a dormant judgment. Yet contention is not wanting to the effect that, as the plaintiff is chargeable as a matter of law with notice of all irregularities, if he purchases the sale is void and no title passes to him. , B Z v. V,l. 05 Tenn. 87-31 B. W. Rep. IN, toton V Ata*. 82 ' T ™n. Ml Hfc*l- v. Hehn, 4 Lit, "-?£££%£ v. Dolby. 27 Tcnn. 409; Weaver v. Oyer, 1 Dev. 338, Wilson v. 30 Tenn. 192.) 270 VOID JUDICIAL AND EXECUTION SALES. SALES UNDER SATISFIED JUDGMENTS. Is Void by the Weight of Authority. § 289. Payment, as a necessary consequence, destroys the vitality of the judgment, for it has then performed its func- tions — satisfied its purpose. When once paid it is there- after a mere nullity, because its efficacy has expired. Pur- suant to the suggestion of reason, and the vast preponderating current of judicial authority, when a judgment or decree has been satisfied by payment of the amount thereof, or by other appropriate means, it is unconditionally void, as veil as everv act thereafter performed under it. It is a self-evident truth that the judgment is the exclusive foundation of the officer's authority to sell and convey the defendant's property, and as an inevitable consequence resultant from the incident of payment or satisfaction, the power of the sheriff is terminated, and his acts must be nullities if done under it, because there is no foundation for them, and no right or title can be ac- quired under them to the property ostensibly sold. The purchaser at an execution sale can be the recipient of no higher rights than are actually conferred upon him by the judgment, and as this has been perpetually terminated by reason of its satisfaction, the sale under execution issued upon it, is absolutely void, as to every one purchasing thereunder, whether bona fide or not, even in the absence of a cancella- tion of the record of judgment. The docket of the judgment is a requisite intended to serve the dual purpose of protecting purchasers from the judgment debtor and for the judgment creditor's convenience and benefit, but not for the protection of the purchaser under the judgment. Manifestly, the only purpose of an execution is for the enforcement of what may be payable upon the judgment, which is simply nothing if the same has been satisfied by payment. The good faith with which the purchaser bought is a mat- ter of inconsequential consideration, if the judgment was in fact satisfied prior to the sale, however harsh this rule may seem. If perchance he has been misled, the debtor avIio has performed all the law requires of him, should not be com- ■I to suffer it: order to obviate his misfortunes, for usually ili< courl has ample power to afford him relief. But if not, SALES UNDER SATISFIED JUDGMENTS. 271 then there is no principle of law by which the burdens of his error can be thrown upon the debtor who is equally as inno- cent and free from fault as the purchaser. (Shaffer v. McCrackin, 90 Eowa, 57S-58 X. W. Rep. 910; Huber v. Pickler 94 Mo. 3S2-7 S. W. Rep. 427; Soukup v. Investment Co., S4 Iowa 44S-51 N. W. Rep. 167; Boss v. Morgan. 130 Ind. 305-30 X E Rep. 141; Reynolds v. Lincoln, 71 Cal. 183-'.) Pac. Rep. 176; Cluto v. Emmerich. 99 N. Y. 342-2 N. E. Rep. 6; Bullard v. McArdle, 98 Cal 355-33 Pac. Rep. 193; Griffin v. Lacourse, 31 Fla. 125-12 feo. Rep 665; Miller v. Morrison, 43 Kan. 446-23 Pac. Rep. 612; Benton v Hatch 1-2 X. Y. 322-25 N. E. Rep. 4S6; Terry v. O'Neal. 71 lex. 592 — 9 S W Rep. 673; Murrell v. Roberts, 11 Ired. 424-53 Am. Dec. 419; Frost v. Bank, 70 N. Y. 553-26 Am. Rep. 627; Wells V. Chandler, 2 Fed Rep. 273; Huff v. Morton, S3 Mo. 402; Merritt v. Richey, 97 Ind -36- Drefahl v. Tattle. 42 Iowa, 177: Durett v. Briggs, 47 Mo. 356; McClure v. Logan, 59 Mo. 234; State v. Salvers, 19 Ind. 432; Carpenter v. tetihvell, 11 N. Y. 61; Craft v. Merrill, 14 N. Y. 456.) And even if no formal entry of the satisfaction is made, the payment of the judgment terminates the lien, for to hold otherwise would be an inexcusable and senseless sacrifice of substance to form and shadow, and repugnant to the modern progressive spirit and policy of the law. (Insurance Co. v. Yanlue, 126 Ind. 410-26 N. E. Rep. 119; Chapin V McLaren, 105 Ind. 563-5 N. E. Rep. 6SS; Shaffer v. McCrackin, 90 Imva . 578 — 58 X. W. Rep. 910; Shields v. Moore, 48 Ind. 440.) Hence an execution defendant whose land has been levied upon and sold under a satisfied judgment, though satisfaction is not shown by the record, may either treat the sale as void, or he may waive such invalidity and institute a suit at law against the execution creditor to recover from him the value of the premises. (Pope v. Benster, 42 Xeb. 304 — 60 X. W. Rep. 561.) Consequently, if after the payment of the purchase money and before the execution of the deed, the sheriff becomes ap- prised of the payment of the judgment, notifies the purchaser thereof and tenders back the purchase money, the deed made by him to such purchaser, who refuses to accept his money from the officer, is absolutely void. Such a purchaser can in no way be considered innocent, (Myer v. Cochrane, 29 Ind. 256.) 272 VOID JUDICIAL AND EXECUTION SALES Silence of Record and no Notice Gives Title to Purchaser. § 290. On the other hand it is asserted in Tennessee that an execution apparently fair upon its face, and emanating from a competent court wherein is entered a judgment also regular, and as far as can be ascertained from the record, is unsatisfied and no impediment being apparent to its enforcement, such a writ will be considered regular; and though voidable, yet is not void, and is ample justification to the officer. (Mason v. Vance, 1 Sneed, ITS — 60 Am. Dec. 144; Clark v. Bond, 7 Baxt. 288; Ethridge v. Edwards, 1 Swan, 426; Esselman v. Welts, 8 Humph. 487.) So in Pennsylvania, Alabama and Mississippi it is hel'd that where the record is silent as to the infirmity with which the writ is affected, in the absence of notice of payment of the judgment, the purchaser has a right to assume that the record discloses the truth, as he is ordinarily charged with the inspection of the record of the judgment and writ, which, in the absence of notice to the contrary, are held to be a safe guide for him. Consequently, the rule which obtains in these states, will not permit a bona fide purchaser to be victimized in this manner. (Saunders v. Gould, 134 Pa. St. 445 — 19 Atl. Rep. 694; Boren V. McGhee, 6 Port. 432 — 31 Am. Dec. 695; Meigs v. Bunting. 141 Pa. St. 233 — 21 Atl. Rep. 58S; Bank v. Ingersoll. 10 S. & M. 35 — 48 Am. Dec. 734; Saunders v. Gould. 124 Pa. St. 237—16 Atl. Rep. S07; Hoffman v. Strohacker, 7 Watts, 86 — 32 Am. Dec. 740; Steele v. Tutwiler, 68 Ala. 107; Gibbs v. Neely, 7 Watts, 305.) AVe can not concur in this doctrine because it seems to us to be not only against the current of authority, but also con- trary to principle and opposed to good policy. Although there is a contrariety of opinion otherwise, the authorities are harmonious at least to the extent that if the judgment is in fact satisfied, a subsequent sale thereunder to anyone having cither actual or constructive notice thereof, is void and passes no title, for such a purchaser can then not be said to be an innocent or bona fide purchaser. (Wilhoit v. Lyons, 98 Cat. 409 — 33 Pac. Rep. 325; Eversdon v. Mahew, 65 Cal. 163 — 3 Pac. Rep. 641; Purser v. Cady, 49 Pac. Rep. 180.) EFFECT OF REVERSAL OF JUDGMENT UPON SALE. 273 EFFECT OF REVERSAL OF JUDGMENT UPON THE SALE THEREUNDER. Purchase by Stranger in Good Faith and Without Notice. §'291. It is a universal rule of law that an execution sale made to a stranger who purchased in good faith and without notice, and who has bought the legal title and has paid his money, is not avoided by reason of a subsequent reversal of the money judgment which is merely voidable for irregu- larity. Sales consummated under the coercive process of the law emanating from an erroneous or irregular judgment are not affected by the reversal of that judgment by the appellate court when no stay bond has been given, and in the absence of collusion and unfairness. (Garrittee v. Poplain, 7?. Md. 322 — 20 Atl. Rep. 1070; Gowen v. Conlow, 51 Minn. 213 — 53 N. W. Rep. 365; Withers v. Jacks, 79 Cal. 297 — 21 Pac. Rep. 824; O'Brien v. Harrison, 59 Iowa, 686 — 12 N. W. Rep. 256; Weeks v. Weeks, 106 N. Y. 626 — 13 N. E. Rep. 96; Purser v. Cady, 49 Pac. Rep. 180; Kramer v. Wellendorff, 10 Atl. Rep. 892; Huckins v. Kapf, 14 S. W. Rep. 1016; Ryan v. Staples, 76 Fed. Rep. 721; Gray v. Brignardello, 1 Wall. 627; Reynolds v. Harris. 14 Cal. 667 — 76 Am. Dec. 459 ; McCormick v. MeClure, 6 Blackf. 466 — 39 Am. Dec. 441.) But this rule has no application, as a matter of necessity, to the judgment creditor as he is not a bona fide purchaser with- out notice, being bound to know that the proceedings are ir- regular or illegal, and can not hold the property upon a re- versal of the judgment, whether the property sold be real es- tate or personalty. (Boos v. Morgan, 130 Ind. 305 — 30 N. E. Rep, 141; Gould v. Sternberg. 128 111. 510 — 21 N. E. Rep. 628; Shirk v. Thomas, 121 Ind. 147—22 N. E. Rep. 976; Benney v. Clein, 15 Wash. 581—46 Pac. Rep. 1037; Munson v. Plummer, 58 Iowa, 736 — 13 N. W. Rep. 71.) And the same rule applies where the property is bought bv the attorney of record, in which case the saie falls to the ground upon a reversal of the judgment. (Galpin v. Page, 18 Wall. 350.) Defendant's Rights and Remedy upon a Reversal. § 292. According to a decided preponderance of authority it is the rule that if the property is sold under execution issued upon an irregular or erroneous judgment and is bought in by 18 2T-i VOID JUDICIAL AND EXECUTION SALES. a stranger to the proceedings, upon a reversal of the judgment the defendant in the writ or his assignee may recover from the plaintiff the full value of the property, but the title to the same is unaffected by the reversal. (Gould v. Sternberg, 12S 111. 510 — 21 N. E. Rep. 628; Cleveland v. Tufts, 69 Tex. 580 — 7 S. W. Rep. 72 ; Carson v. Suggett, 34 Mo. 364 — 86 Am. Dec. 112; Smith v. Zent, 83 Ind. 86 — 43 Am. Rep. 61; Trentman v. Willey. 85 Ind. 33; Thompson v. Thompson, 1 N. J. L. 159.) And pursuant to the rule obtaining in other states the de- fendant's right of recovery from the plaintiff, in such case, is restricted to the actual amount for which the property was sold and which came into the hands of the judgment plaintiff, and not the real value of the property. (Peck v. McLean, 36 Minn. 228 — 30 N. W. Rep. 759; Gay v. Smith, 38 N. H. 171 ; Bickerstaff v. Dellinger, 1 Murph. 272 ; Bryant ?. Fairfield, 51 Me. 149; Levett v. Church, 12 Barb. 67.) The latter rule is sound on principle where the action is brought against the officer before he has paid over to the plain- tiff the money realized from the sale, but its application to this extent, as against the plaintiff himself, after having received the money is not alone in violation of sound principles but its operation is manifestly inequitable, for nothing short of the actual value of the property at the time it was taken from him will restore the defendant to the condition he was in prior to the seizure, and the plaintiff is not, as the officer, pro- tected by presumptions, nor should the defendant sacrifice a portion of his property as a penalty for not satisfying an illegal judgment sought to be enforced by the plaintiff. The Rule also Applies to Judicial Sales. § 293. The rule applicable to execution sales also applies to judicial sales. Where the sale is to a third party and a pur- chaser in good faith, payment having been made, confirmation had and deed of conveyance executed and delivered, subse- quent reversal of the decree or order of sale can not vacate or avoid the sale. " If the court has jurisdiction to render the judgment or pronounce the decree, that is, if it has juris- diction over the parties and the subject-matter, then upon principles of universal law, acts performed and rights acquired by third person-, under the authority of the judgment or de- cree, and while it remains in force, must be sustained, not- BY WHOM THE SALE MUST BE CONDUCTED. 275 withstanding a subsequent reversal. The necessity of this rule, as founded upon important considerations of public pol- icy, is too apparent to admit of dispute ". (Hay v. Bennett, 153 111. 271 — 38 N. E. Rep. 645; Goudy v. Hall, 36 111. 313 — 87 Am. Dec. 217: McBride v. Langworthy, 14 Ohio St. 350 — S4 Am. Vive. 383; Bailey v Orphan School, 14 S. W. Kep. 908; Galpin v. Page, is Wall. 350.) Want of Jurisdiction Annuls the Sale in Any Event. § 294. Pursuant to the doctrine enunciated by an unbroken line of authorities, a doctrine founded in necessity and on the plainest of principles, where the judgment is not reversed or remanded for error or irregularities, but for want of jurisdic- tion to render it, the sale is unconditionally void, and no rights can be acquired under it, the execution and sale fall to the ground with the judgment. (MeCracken v. Flanagan. 141 X. Y. 174 — 36 X T . E. Rep. 10; Mining Co. v. Mining Co., 12 Colo. 46 — 20 Pac. Rep. 771: Anderson v. Gray, 134 111. 550 — 25 X. E. Rep. S43 ; Paul v. Willis. 69 Tex. 261 — 7 S. W. Rep. 357; Rimes v. Williams, 99 Ga. 2S1 — 25 S. E. Rep. 68.5: MeMinn v. Whelan, 27 Cal. 300.) And in such case the fact that third parties have purchased under the belief that the judgment or decree is valid and binding between the parties, is a matter of inconsequential consideration, for this will not defeat the right of showing the want of jurisdiction and the utter nullity of the proceedings by reason thereof. (Alining Co. v. Mining Co., 12 Colo. 46 — 20 Pac. Rep. 771: Mastin v. Gray, 19 Kan. 458 — 27 Am. Rep. 149; Ferguson v. Crawford. 70 X. Y. 253 — 26 Am. Rep. 589; Harshey v. Blaekmar, 20 Iowa, 161 — 89 Am. Dec. 520.) If the judgment has been vacated by appeal or otherwise, after the issuance of the execution but before the sale, the power to make it is terminated, and it must fall to the ground. (Bullard v. McArdle, 98 Cal. 355 — 33 Pac. Rep. 193; Frost v. Bank, 70 X. Y. 553 — 26 Am. Rep. 627; Wood v. Colvin, 2 Hill, 566 — 38 Am. Dec. 598.) BY WHOM THE SALE MUST BE CONDUCTED. In Judicial Sales Generally by the Officer Designated in Decree. § 295. Judicial sales under decrees in chancery are ordi- narily made by a master or other functionary of the court 276 VOID JUDICIAL AND EXECUTION SALES. appointed and commissioned by it to conduct the sale. Gen- erally, in the absence of statutory provision to the contrary, all judicial sales are made by someone particularly desig- nated in the decree, order or license, or under the immediate direction and superintendence of such functionary. How- ever, the functionary is permitted to employ an auxiliary by way of an auctioneer to conduct the sale in his personal pres- ence. The master, commissioner or other officer thus ap- pointed by the court, in the performance of the duties imposed upon him by reason of his appointment, is but the mere in- strument of the court in the conduct of the sale. (Mining Co. v. Mason, 145 U. S. .349 — 12 Sup. Ct. Rep. 887; Bol- giano v. Cooke, 19 Md. 375; Blossom v. Railway Co.. 3 Wall. 196; Noland v. Noland, 12 Bush, 426; Williamson v. Berry, 8 How. 495.) In Execution Sales by the Officer to Whom the Writ is Directed. § 296. In the absence of a disqualification to act, all sales under executions must be made by the sheriff or constable, to whom the same is legally and properly directed, and when the writ is directed to the sheriff generally as such, by a duly appointed deputy acting for and in the name of the principal officer in this regard. As a general rule the writ confers no authority upon any other officer except the one to whom it is directed. . (McKay v. Bank, 75 Tex. LSI — 12 S. W. Rep. 529; Gowdy v. Sanders. 88 Ky. 346 — 11 S. W. Rep. 82; Bybee v. Ash by, 7 111. 151 — 43 Am. Dec. 47; Porter v. Stapp, 6 Colo. 32.) Thus, under a statute providing that the execution must be directed to the sher.'ff of the particular county where it is to be enforced, it has been held that a levy of the writ by a con- stable in such county is unauthorized and void. (Satterwhite v. Melczer, 2 Ariz. 24, Pac. Rep. 184.) So strict is this rule enforced requiring the writ to be exe- cuted by the officer to whom it is directed, that a sale made under it by one other than the proper officer to whom it was directed, but by one to whom it might have been addressed, is without any validity. (Johnson v. Elkins, 90 Ky. 163 — 13 S. W. Rep. 448; Gowdy v. Sanders, 88 Ky. 346 — 11 S. W. Rep. 82.) So it is held that an execution addressed to the sheriff of one county is no justification for a seizure by the sheriff of BY WHOM THE SALE MUST BE CONDUCTED, 277 another county, and the latter is not alone a trespasser if he seeks to execute it, but the sale thereunder is absolutely with- out legal efficacy; (Steele v. Metealf, 4 Tex. Civ. App. 313 — 23 S. W. Rep. 474.) and the real estate sold by a sheriff of one county under a venditioni exponas issued to the sheriff of another county is also a nullity. (Terry v. Cutler, 4 Tex. Civ. App. 570 — 23 S. W. Rep. 539; McKay \. Bank, 75 Tex. 181 — 12 S. W. Rep. 529; Terry v. Cutler. 39 S. W. Rep. 152.) In most of the states under express provision of statute, when the service of an execution upon real estate has been commenced by a sheriff the sale may be completed by his suc- cessor in office without a writ of venditioni exponas, (Lewis v. Bartlett, 12 Wash. 212 — 40 Pac. Rep. 934; Kane v. McCowan. 55 Mo. 181; Hastings v. Bryant, 115 111. 69 — 3 X. E. Rep. 507 : Holmes v. Mclndoe, 20 Wis. 057 ; Bank v. Beatty, 3 Sneed, 305 — 65 Am. Dee. 58: Leshey v. Gardner. 3 W. & S. 314 — 38 Am. Dee. 764; Bellingall v. Duncan, 3 Gilm. 477.) though in some jurisdictions the officer who has commenced the execution of the writ must complete its service, notwith- standing the expiration of his term of office. (Hunt v. Swayze, 55 X. J. L. 33 — 25 Atl. Rep. 850; State v. Roberts. 7 Halst. 114 — 21 Am. Dec. 62; Newman v. Beckwith, 61 N. Y. 205; Leavitt v. Smith, 7 Ala. 175; State v. Hamilton, 16 X. J. L. 153.) As a general rule a sheriff or constable has no authority whatever to execute an execution which is directed to some other sheriff or constable, and as a logical sequence, if he does act under it the sale is void and he a trespa-sor. (Johnson v. Elkins. 90 Ky. 163 — 13 S. W. Rep. 448; Steel v. Metealf, 4 Tex. Civ. App. 313 — 23 S. W. Rep. 474; Cordon v. Camp, 3 La. St. 349 — 45 Am. Dec. 647.) \Yithin the purview of the law the officer in conducting a sale under execution exercises the functions of an agent, and every one dealing with him, under the general policy of the law in this regard, is presumed to know in what capacity he is acting. It is upon this theory that courts have pronounced sales void when made by an officer not vested with authority. The law charges him who deals with an agent to ascertain the 278 VOID JUDICIAL AND EXECUTION SALES. scope of his authority. Accordingly, a sale by a sheriff sub- sequent to the expiration of his tenure of office under a venditioni exponas issued upon a levy made by him while in office is utterly devoid of legal efficacy, and insufficient as a foundation for title or right in the purchaser. But it is otherwise as to personal property by reason of the special propertv vested in the officer who makes the levy and his eon- sequent responsibility arising therefrom. (Busey v. Tuck, 47 Md. 171; Clark v. Sa-vvyer, 48 Cal. 133; Tukey v. Smith, IS Me. 125 — 36 Am. Dec. 704; Bank v. Beatty, 3 Sneed, 305 — 65 Am. Dec. 58; Purl V. Duvall, 6 H. & J. 69 — 9 Am. Dec. 490.) Lands Located in Another County. § 297. A sheriff has no power to sell land under execution which is located in another county than the one in which he is elected, in the absence of statutory provision authorizing it, as his jurisdiction as such is co-extensive with the terri- torial limits of his county only, and does not extend beyond. (Terry v. O'Neal, 71 Tex. 594 — 9 S. W. Rep. 673; Short v. Hepburn, 75 Fed. Rep. 113.) Writ in Officer's Own Favor. § 298. Upon principle and authority a sheriff is wholly in- competent to execute a writ of execution emanating from a judgment in his own favor, and consequently a sale made by him under an execution thus issued and directed to him is utterly void, (Knight v. Morrison, 79 Ga. 55 — 3 S. E. Rep. 6S9; Callais v. McLeod, 8 Ired. 221 — 49 Am. Dec. 376; Bowen v. Jones, 13 Ired. 25.) though it is held that it was the invariable rule for the sheriff or other levying officer to levy any execution for costs whether such officer be interested in the same or not. (Vining v. Officers of Court. 86 Ga. 127 — 12 S. E. Rep. 29S.) Sales by Administrators, Executors and Guardians. § 299. Sales by administrators, executors and guardians must be made by them personally, or under their direction, though they may be assisted by an auxiliary functionary in conducting the sale, which however, in contemplation of law, is nevertheless made by the fiduciary himself. Xor is it within the power of the court to appoint or commission some stranger in the place of the administrator or guardian to per- LIMITATIONS ON TIME OF MAKING SALE. 279 form such duty. A sale by a stranger so licensed conveys no title to the purchaser. For similar reasons these fiduciaries have no power to delegate their authority to another to make the sale. (Wilson v. Mason, 157 111. 304 — 42 N. E. Rep. 134; State v. Younts, 89 Ind. 313; Wishand v. Small. 65 Ind. 120; Pearson V. Jamison, 1 McLean, 197; Crouch v. Eveleth, 12 Miss. 503; Rose v. Newman, 26 Tex. 131; Jarvis v. Russick, 12 Mo. 63; Swan v. Wheeler, 4 Day, 137.) The probate court has no authority in partition proceedings in an estate of a decedent legally pending in administration to order a sale of the property of the estate through a commis- sioner or trustee. Such appointment finds no warrant in law and invests the commissioner with no authority to prosecute the sale. In the absence of an administrator there can be no sale of such property, and a sale by the commissioner in either alternative is void. (Stafford v. Harris, S2 Tex. 17S— 17 S. W. Rep. 530; Rose v. Newman, 26 Tex. 132; Jarvis v. Rissuck, 12 Mo. G3.) Sale by Agent of Commissioner. § 300. If the court which made the decree of sale and ap- pointed the commissioner had jurisdiction, the fact that the sale under such decree is conducted by an agent of the au- thorized functionary and in his absence, and a deed is subse- quently made by the authorized official in consummation thereof, it is an irregularity of sufficient gravity to avoid the sale as between the parties, but not being a jurisdictional in- firmity the sale must stand if the rights of innocent purchasers have intervened. The sale is voidable but upon principle can hardly be said to be void, and when properly confirmed by the court the defect is cured. (Kirk v. Kirk. 137 N. Y. 510 — 33 N. E. Rep. 552; Woodhull v. Little, 102 N. Y. 165 — 6 N. E. Rep. 266; Eaton v. White, 18 Wis. 517; Mining Co. V. Mining Co.. Ill [11. 32; Barteneaux v. Eastman. G Wis. 410; Chambers v. Jones, 72 111. 275; Kellogg v. Wilson, 89 111. 357; Sebastian v. Johnson. 72 111. 282.) LIMITATIONS ON TIME OF MAKING SALE. Sales Noticed for and Made on Non-judicial Days. § 301. The notice of -.il« i in judicial and execution sales fixes the time when the sale will take place, which in every 280 VOID JUDICIAL AND EXECUTION SALES. instance should not conflict with the prohibitions of law in this respect, as for instance, on a Sunday. Though the stat- ute fixes certain days as non-judicial, when no judicial busi- ness shall be transacted in the courts, notwithstanding a judicial sale is conducted by a fiduciary of the court and under its directions, on such a day, the sale is not the business of the court within the purview of such statutes, and therefore not void for having taken place pursuant to advertisement upon a non-judicial day. However, a sale which has taken place upon either Sunday or some other non-judicial day, is irregu- lar in a sufficient degree by reason of a violation of this rule, to warrant the court in refusing confirmation, if the irregu- larity is suggested by way of objections to the confirmation within a proper time. (King v. Piatt, 37 N. Y. 155; Crabtree v. WMteselle, 65 Tex. Ill; Howard v. North. 5 Tex. 290 — 51 Am. Dec. 769.) Sale Made upon Day other than that Designated by Statute. § 302. If the statute expressly prescribes the time and place of sales under execution, it is held in Texas, North Carolina and Mississippi that if the sale takes place at a time in con- travention of this provision, it is not only voidable but alto- gether void, and the purchaser takes no title to the land thus sold to him. (Williamson v. Williamson, 52 Miss. 725: Mayers v. Carter, 87 N. C. 146: Moody v. Moeller, 72 Tex. 635 — 10 S. W. Rep. 727; State v. Rives, 5 Ired. 297; Mordecai v. Speight, 3 Dev. 428; Sinclaire v. Stanley, 64 Tex. 67.) And in Tennessee it is held that a sheriff's deed to land which purports to be founded on a sale for taxes is void if it shows upon its face that the land was sold on a day different than that by law designated. Though these sales are scruti- nized as a rule with unjust strictness by the courts. (Conrad v. Dardon. 4 Yerg. 307; Thompson v. Lawrence, 2 Raxt. 415.) A statute providing that an execution sale of personal property shall be made at the end of twenty days from the day of posting notice was held to be mandatory, and a sale made twenty-two days from such time was accordingly considered void and the purchaser acquired no right to the property or it- possessions, a- against the execution defendant, upon the theory that as a general rule, personal property can not be LIMITATIONS ON TIME OF MAKING SALE. 281 taken and appropriated by a creditor for the satisfaction of his demand, by Levy and sale under execution, without strict compliance with every step prescribed by law. (Morey v. Hoyt, 65 Conn. 516 — 33 At I. Rep. 496; Webster v. Peck. 31 Conn. 495.) After Expiration of Active Energy of the Execution. § 303. That the sale must be mad.' under authority both valid and subsisting is elementary; consequently, if the sale is made under an execution or other authority which was once sufficient, but which through lapse of time has lost its efficacy, the sale can be considered in no other light than that it was made without authority and is void. Accordingly, after its return day, the execution is functus officio, whether it has been returned or is still in the hands of the officer, and after it has thus expired by its own limitations, it furnishes not the least pretense of power to the officer to make a levy and sale thereunder. A levy of an execution made subsequent to the expiration of the active energy of the writ is an absolute nul- lity, and the sale thereunder is void. (Waldrop v. Freidman, 90 Ala. 157 — 7 So. Rep. 510; Evans v. Caiman, 92 Mich. 427 — 52 N. W. Rep. 787; Faull V. Cooke, 19 Ore. 455 — 26 Pac. Rep. 662; Rand v. Cutler. 155 Mass. 451-29 X. E. Rep. 1035; Ansonia Co. v. Connor, 103 X. Y. 502 — 9 X. E. Rep. 238; Slater v. Lamb, L50 -Mass. 239 — 22 X. E. Rep. S92; Cain v. Woodward. 74 Tex. 549 — 12 S. W. Rep. 319; Com. v. Magee. 8 Pa. St. 240 — 44 Am. Dec. 509; Barden v. MeKinnie, 4 Hawks. 279 — 15 Am. Dec. 519; Wyer v. Andrews, 13 Me. 168 — 29 Am. Dec. 497: Tower v. McDowell. 31 Pac. Rep. 843; Corbin v. Pearce. 81 111. 461: McDonald v. Granefeld, 45 Mo. 28; Sturgis' Appeal, 86 Pa. St. 413; O'Bannon v. Saunders. 24 Gratt. 138; Edwards v. Ingraham, 31 Miss. 272.) But a sale made subsequent to the expiration of the active energy of the writ is valid provided, however, that the levy was effectuated prior to such time. (Ludeman v. Hirth, 90 Mich. 17 — 55 X. W. Rep. 4(9; Lumber Co. v. Eotel Co., 94 Cal. 217 — 29 Pac. Rep. 627; Spencer v. Haug, 45 Minn. 231 — 47 X. W. Rep. 794: Henderson v. Trimmin, 32 S. C. 269 — 11 S. E. Rep. 540; Vroman v. Thompson, 51 Mich. 452 — 16 X. W. Rep. SOS; Walton v. Wray, 54 Iowa, 531 — X. W. Rep. 742: OUis v. Kirkpatriek, 2 Idaho. 976 — 28 Pac. Rep. 435; Quackenbush v. Henry, 42 Mich. 75 — 3 X. W. Rep. 262; Ansonia Co. v. Connor, 103 X. Y. 502 — 9 X. E. Rep. 238; Mason v. Bennett, 52 Fed. Rep. 343; Kelly v. Herrall, 20 Fed. Rep. 364.) 282 VOID JUDICIAL AND EXECUTION SALES. Although it is held in Texas, Alabama and Tennessee that a sale by a sheriff under an execution after the return day of the writ is without authority and passes no title to the pur- chaser, even if a levy had been made prior to the return day. It is difficult to comprehend the logic employed to reach this result. i Hawes v. Rucker, 94 Ala. 166 — 10 So. Rep. 85; Cain v. Woodward. 74 Tex. 549 — 12 3. W. Rep. 319; Smith v. Mundy, 18 Aia. 182; Rogers v. Cawood, 1 Swan. 142 — 55 Am. Dec. 729; Morgan v. Ramsey, 15 Ala. 190; Young v. Smith, 23 Tex. 598; Overton v. Perkins, 10 Yerg. 328; Towns v. Harris, 13 lex. 507.) Sale after Death of Debtor on Execution Issued before. § 304. If the execution is issued before the death of the judgment defendant it may be executed by making a sale thereunder after his death. (Coffin v. Freeman, 84 Me. 535 — 24 Atl. Rep. 9S6; Renners v. Rhine- hart, 107 N. C. 705—12 S. E. Rep. 456.) But in Texas it is held that if the writ issued and levy was made upon the land subsequent to the demise of the judgment defendant upon a judgment obtained against him while in life, the sale is voidable but not void. (Cain v. Woodward, 74 Tex. 549 — 12 S. W. Rep. 319; Hooper v. Caruthers, 78 Tex. 4S2 — 15 S. W. Rep. 98.) In Tennessee it is held that a sale of land under execution issued upon a judgment of a court of competent jurisdiction, after the death of the judgment defendant, but tested prior thereto, without revivor of the judgment, and within one year of its rendition, is valid, upon the theory that the writ bears teste during the lifetime the levy and sale arc in law regarded as transpiring during the debtor's existence. (Montgomery v. Realhafer, 85 Tenn. 668 — 5 S. W. Rep. 54.) Sale on Execution Issued after Bar of the Statute is Complete. § 305. In Michigan and North < larolina it is held an execu- tion issued upon a judgment barred by the lapse of time is insufficient to confer any right to sell, and consequently ;i sale thereunder is wholly ineffectual to pass title to the property; but if the writ is issued before the bar of the statute has he- come complete the sale may be made thereafter and a good title acquired by the proceedings of sale. LIMITATIONS OX TIME OF MAKING SALE. 283 (Ludeman v. Hirth, 96 Mich. 17 — 5-5 N. W. Rep- 449; Coward v. Chastian, 99 X. C. 443 — 6 S. E. Rep. 703: Parsons v. Circuit Judge 37 Mich. 287; Lytle v. Lytle, '.'4 X. C. 633; Jerome v. Williams, 13 Mich. 526; Lyon v. Russ, 84 X T . C. 5S8.) Execution Issued before but Sale Made after Lien of Judgment Expired. § 306. The issuance and levy of an execution before the expiration of the judgment lien will not prolong the lien of the judgment beyond the limit of time proscribed by the statute, and therefore, a purchaser at a sale under the writ after the expiration of the lien receives no title by reason of any judgment lien, but the land will be charged with all liens and encumbrances which have attached prior to the pale, just the same as if there never had been any judgment lien. The proposition is indisputable that the duration of the lien of judgment prescribed by statute can not be prolonged by the courts. (Bradfield v. Newby, 130 Ind. 59 — 28 X. E. Rep. 619; Wells v. Rower, 126 Ind. 115 — 25 X. E. Rep. 603; McAffee v. Reynolds, 130 Ind. 33 — 28 X. E. Rep. 423.) Where Judgment Was Satisfied before Sale. § 307. Manifestly, after the judgment upon which the execution was issued has been satisfied by its payment it has performed its functions, and the writ itself is thereafter functus officio, notwithstanding- it was issued before satis- faction of the judgment, and a sale under it is ineffectual for any purpose, because there is no foundation to support the execution. (Simmons v. Vandergrift, 1 X. J. L. 55; French v. Edwards, 5 Sawyer. 266; Garth v. Campbell, 10 Mo. 154; Reed v. Pruyn, 7 Johns. 426 — 5 Am. Dec. 287; Rutland v. Pippin. 7 Ala. 469; Eaynes v. Sheriff, 76 Ga. 33.) Statute Repealed or Court Abolished before Sale. § 308. Where the order of sale was granted under the provisions of statute which was repealed prior to the sale no title was conferred thereby; (Perry v. Clarkson, 16 Ohio, 572; Hank v. Dudley, 2 Pet. 402: Ludlow v. Wade, 5 Ohio. 495; Aspley v. Murphy. 50 Fed. Rep. 376; Insurance Co. v. Ritchie, 5 Wall. 541.) 284 VOID JUDICIAL AND EXECUTION SALES. nor is a sale made by a commissioner appointed to execute a decree of a court of chancery effective for any purpose if made after the abolition of the court which appointed him and made the decree. (McLaughlin v. Janney, 6 Gratt. 609.) Property Put in Hands of Receiver before Sale. § 309. ^Notwithstanding the property has been properly levied on under execution, the right to sell the same under the writ may yet be suspended or destroyed, if it comes into the possession of a receiver appointed and acting under the authority of a court of competent jurisdiction. If the sale under the execution is made subsequent to such appointment and without the express leave of court, it is illegal and void. (Walling v. Miller. 108 X. Y. 173 — 15 X. E. Rep. 65.) \YHEN SALE MUST BE AT PUBLIC YEXDITE. Under Executions and Decrees and Orders of Sale. § 310. Judicial sales, whether in chancery or probate, are usually either at public or private sale, according to the direc- tions in this regard contained in the license, decree or order, or the provisions of statute governing this matter. In some state- express provisions of statute exist making it optional with the court to order the <;ile by an administrator, executor or guardian to be either public or private, as will best subserve the interests of the estate. In any event, the sale must always lie first approved by the court before any rights have accrued or obligations attached, and after it- confirmation the sale is made, in popular phraseology, though not completely con- summated until the execution and delivery of the deed of con- veyance. The rule i- universal and inexorable that sales under execu- tions must be made at public auction. It was so at common law, and it i- ;i requirement of statute in every state, and is the essence of such ;i -ale Hence, it may be stated as a gen- eral rule that when the law applicable thereto expressly de- mands it. or if the decree, license or order of sale expressly directs it, thai the property involved be disposed of at public vendue, a violation of this provision or direction, by making WHEN LEVY AN &SSENTLAL BEQUISITE. 285 the sale privately, unquestionably invalidates the whole pro- ceedings and no title will pass. In conducting the execution sale the officer acts as the agent of the law, his powers as such being derived from, pre- scribed and defined by the statute, and being specially au- thorized by law to sell at public auction, as he is in sales under execution,' the special authority must he strictly pursued. The purchaser is bound by the presumption to know the limits of the officer's authority as delegated to him by the law, and purchasing when he transgressed such special authority, he does so at his peril. This is in accordance with the general principles applicable to the law of agency. Manifestly, when the statute requires that the sheriff make the sale under execution at public auction to the highest bidder thereat, the officer is imperatively controlled by the requirements thereof, and a sale made in contravention of the law in this regard is ineffectual to pass the title from the judg- ment debtor to the ostensible purchaser. The same rule per- tains when a sale is made privately in violation of the express directions embodied in the decree or order of sale. (Kevser's Appeal. 13 Pa. St. 409 - 53 Am. Dec. 487 ; Ware v. Houghton, 41 Miss 370-93 Am. Dec. 258; Pierce v. Evans, 61 Pa. St. 420; Hutch- ins v. Cassidv. 46 Mo. 431; Worton v. Howard. 2 S. & M. 527; State v Bank 45 Mo. 52S; Ellet V. Paxon. 2 W. & B. 418; Sturgeon v. Hamp- ton 88* Mo. 203; Neal v. Patterson, 40 Ga. 363; Gaines v. De La- Croix, 6 Wall. 719; McArthur V. Carrie, 32 Ala. 75; Fambo v. Gantt, 12 La. Ann. 298.) But in Arkansas it is held that a private sale of lands of a decedent made under the order of the court is not void when confirmed, notwithstanding the statute requires a public sale and this upon the theory that probate courts are courts of superior jurisdiction, and that their judgments in the exercise of jurisdiction, when rightfully acquired, can not be im- peached in a collateral proceeding. (Apel v. Kelsey, 52 Ark. 341-12 S. W. Rep. 703.) WHEN LEVY AN ESSENTIAL REQUISITE. Not Necessary where Judgment Is a Lien on the Land. § 811. A levy is made for the purpose of creating a lien upon the specific property involved to subject it to the satis- faction of the judgment upon which the writ issued; or in 286 VOID JUDICIAL AND EXECUTION SALES. other words, it is the act of the officer by which he sets apart and appropriates the defendant's property to satisfy the man- dates of the execution. As a logical conclusion, when by statute the judgment, when entered according* to the re- quirements of law, constitutes a lien upon the realty of the judgment debtor, no levy or seizure, as it is sometimes desig- nated, is necessary in sales under writs of execution, for if there is already a lien by virtue of the judgment, the subse- quent levy or seizure is a superfluous formality. It would in no way augment the efficacy of the previously existing judg- ment lien to enforce which the proceedings of sale are had. Therefore, despite the fact that the ordinary judgment aris- ing by virtue of suits at common law does not direct the sale of any specific property, yet constituting by virtue of the pro- visions of law a lien upon real estate of the judgment debtor, if the sale under execution based upon such judgment be consummated during the existence of the judgment lien, a formal levy may be entirely dispensed with as an unnecessary formality without affecting the validity of the proceedings of sale. (Farrior v. Houston, 100 N. C. 369 — 6 S. E. Rep. 72; Folsom v. Carli, 5 Minn. 333 — 80 Am. Dec. 429; Wood v. Colvin. 5 Hill, 228; Van Gelder v. Van Gelder, 26 Hun, 356; Lockwood v. Bigelow, 11 Minn. 113.) Where Judgment or Decree Directs the Sale of the Property. § 312. In judicial sales under orders, decrees or licenses of sale, or where the judgment directs the sale of specific property, as in the foreclosure of mortgages or other specific liens, no actual levy is necessary, because the order or decree under which the sale is made has already appropriated and set apart the particular property for the satisfaction of the mandate thereof, and the right to sell has attached as a neces- sary consequence of the proceedings in equity. The same rule obtains where realty is ordered to be sold in equity under special execution by which the officer is commanded to sell the same. If the suit be for the enforcement of a specific lien the title under the sale dates back by relation to the inception of the lien, and like the case where the judgment is a lien, a levy would be supererogatory and idle formality contributing nothing to the validity of the sale. (Lumber Co. v. Hotel Co.. 9-4 (al. 217 — 29 Pac. Rep. 627; Burkett v. Clark, 46 Neb. 466 — 64 N. W. Rep. 1113. Bank v. Page, 7 Ore. 454.) WHEN LEVY AX ESSENTIAL REQUISITE. "-»< Where Judgments Are not General Liens. § 313 But where the judgment itself is not a general lien on the property of the judgment debtor, as in some of the states, there a levy is an indispensable requirement, and a sale without it is a nullity, because no lien ever attached upon the land, and hence, in theory of law, the property never was sub- iected to the process of the court. Statutes providing for a levy have been held to be manda- tory, and that the actual levy must be made before the return day of the execution, (O'Kelly v. Gholston. 89 Ga. 1-15 S. E. Rep. 123; Evans v. Caiman, 92 Mich. 427-52 N. W. Rep. 787; Sanger v. Trammell, 66 Tex. 361- 1S W Rep. 378; Ludeman v. Hirth, 90 Mich. 17-:,. X. W. Rep 449; Elliott v. Knott, 14 Md. 121-74 Am. Dec. 519; Hamblen v Hambfcn, 33 Miss. 455; Manning v. Dove. 10 Rich. 395; Harman v. Hahn. 6 Baxt. 90; Collins v. Dixon, 72 Ga. 475.) and that it is absolutely essential that the officer's return of the lew of the writ upon lands explicitly shows a compliance with all the statutory requirements relative, thereto or else the title of the judgment debtor will not be divested by the pro- ceedings. (Rand v. Cutler, 155 Mass. 451-29 N. E. Rep. 1085; Walsh v. Ander- son 135 Mass. 65; Walsh v. Macomber. 130 Mass. 28; Prescott v. Pettee, 2 Pick. 276; Bates v. Willard, 10 Met. 62.) It is therefore a general rule where a levy is required upon real estate that it can not consist in any mere mental de- termination, but must be accomplished in a manner capable of being proved and identified contemporaneously with its oc- currence, as by seizure of the land to be sold, as it is no the policy of the law to conclude one by an act not susceptible of ascertainment. (Langl ev v. Jones. 33 Md. 171; Cainpau v Barnard, 25 mcK Mi, .Tarboe v. Hall, 37 Md. 345; Waters v. Duvall, 11 Gill & J. 37 ... Am. Deo. 697. But in Rhode Island under a statute containing no pro- vision as to the manner of levying an execution on land, pro- viding merely that if the sheriff levy the writ on land he shall set up notice of sale, the levy may be made by mere mental process, conclusively proved by the notice of sale. (Lynch v. Earle, 18 R. 1. 531-28 Atl. Rep. 763.) 288 VOID JUDICIAL AND EXECUTION SALES. On Personal Property under Execution. § 314. According to the numerical strength of judicial de- cisions personal property can not be lawfully sold under exe- cution unless it has been levied upon by the officer who holds the writ, or has been subjected to his control by its actual seizure, though in so far as the immediate parties to the pro- ceedings are concerned, the levy may be waived, precluding subsequent inquiry on the part of the defendant for want of a proper levy prior to the sale. (Windmiller v. Chapman. 139 111. 163 — 28 N. E. Rep. 979; Horsey v. Knowles, 74 Md. G02 — 22 Atl. Rep. 1104; Horgan v. Lyons, 59 Minn. 217 — 60 N. W. Rep. 1099: Karnes v. Alexander, 92 Mo. 660 — 4 S. W. Rep. 518; Yeomans v. Bird, 81 Ga. 340 — S. E. Rep. 179; Stone- bridge v. Perkins, 141 N. Y. 1 — 35 N. E. Rep. 980; Root v. Railway Co., 45 Ohio St. 222 — 12 N. E. Rep. 812; Bradley v. Kesee, 5 Coldw. 223 — 94 Am. Dec. 246; Seawall v. Bank, 3 Dev. L. 279 — 22 Am. Dec. 722; Rudy v. Com., 35 Pa. St. 1GG — 78 Am. Dec. 303; Brown v. Pratt, 4 Wis. 513 — 65 Am. Dec. 330; Berry v. Griffith, 2 H. & G. 337 — 18 Am. Dec. 309; Trovello v. Tilford, 6 Watts. 46S — 31 Am. Dec. 484; Waters v. Duvall, 11 G. & J. 37 — 33 Am. Dec. 693; Brown v. Dickson, 2 Humph. 395 — 37 Am. Dec. 560; Ware v. Bradford, 2 Ala. 676 — 36 Am. Dec. 427; Reeves v. Sebern, 16 Iowa, 234 — 85 Am. Dec. 513; Newman v. Hook, 37 Mo. 207 — 90 Am. Dec. 37S; Hughes v. Wait. 26 Ark. 228; Langley v. Jones, 33 Md. 171; Brown v. Lane, 19 Tex. 203; Stuckeit v. Keller, 105 Pa. St. 386; Dement v. Thompson, 80 Ky. 255; Long v. Hall. 97 N. C. 286 — 2 S. E. Rep. 229; Humphrey v. Hitt. 6 Gratt. 509; Jewett v. Guyer. 38 Vt. 209; Murphy v. Swadner, 33 Ohio St. 85.) Effect and Sufficiency of Levy. § 315. Where a levy is an essential step in the proceed- ings of sale, it must describe the property with sufficient certainty to identify it, or else it is void for uncertainty. (Porter v. Byrne, 10 Ind. 146 — 71 Am. Dec. 305; Taylor v. Cozart, 4 Humph. 433 — 40 Am. Dec. 655; Chastian v. Phillips, 4 Jones L. 459 — 69 Am. Dec. 760; Brown v. Dickson, 2 Humph. 395 — 37 Am. Dec. 560; Brigance v. Krwin, 1 Swan, 375 — 57 Am. Dec. 779; Saunders v. Bank, 61 N. H. 31.) And to constitute a valid levy of the goods the officer must at least be in view of the property, and have control of it, for a more paper lew h insufficient; nor will the mere making of an inventory of such property known by the sheriff to be owned by the execution defendant, especially when it is not FAILURE TO TAKE OATH CONCERNING THE SALE. 289 present, constitute a valid levy, for the officer must so deal with the property that, were it not for the writ with which he is armed, he would be a trepasser. (Windmiller v. Chapman, 139 III. 163 — 28 X. E. Rep. 979; Horsey v. Knowles, 74 Md. 602- 22 All. Hep. 1104; Brown v. Pratt, 1 Wis. 513 — 65 Am. Dec. 330; Bradley v. Kesee, 5 Coldw. 223 — 94 Am. Dec. 246; Haggerty v. Wilber, 16 Johns. 286 — 8 Am. Dec. 321; Jones v. Howard, 99 Ga. 451 — 27 S. E. Rep. 765.) Property transferred in fraud of creditors may be levied upon under writs in their favor without showing that the transfer was made to avoid the payment of their specific claims. (Lowry v. Fisher, 2 Bush, 70 — 92 Am. Dec. 754; Carpenter v. Roe, 10 N. Y. 227; Wyman v. Drown. 50 Me. 139: Clark v. French. 23 Me. 221 — 39 Am. Dec. 618; Barling v. Bishopp, 29 Beav. 4! 7.) As a general rule property in the custody of the law can not be levied on under execution. (Hackley v. Swigert, 5 B. Mon. 86 — 41 Am. Dec. 256; Martin v. Davis, 21 Iowa, 535; Nelson v. Connor. 6 Robt. 339: Langdon v. Loekett, 6 Ala. 727 — 41 Am. Dec. 7s : Jackson v. Lahee. 114 111. 287; Skinner v. Maxwell. 68 N. C. 4(H); Stout v. La Follette, 64 Ind. 365; Barnes v. Treat, 7 Mass. 271 ; Davis v. Drew, 6 N. H. 399 — 25 Am. Dec. 467: Vance v. Royal Clay Mfg. Co.. 82 Fed. Rep. 251.) If the execution issued and a levy was perfected there- under before the death of the defendant it will not be ar- rested or discharged by his death, as a general rule, (Wood v. Morehouse, 45 N. Y. 368; Thompson v. Ross, 26 Miss. 200; Grosvenor v. Gold, 9 Mass. 214; Logsdon v. Spivey. 54 111. 104; Craig v. Fox, 10 Ohio, 563; Center v. Billinghurst, 1 Cow. 33; Day v. Rice, 19 Md. 644.) though in Texas all proceedings under the writ abate with the death of the execution defendant, and the levy is there- fore dissolved. (Chandler v. Burdett, 20 Tex. 42; Miller v. Butler, 20 Tex. 402; Con- krite v. Hart, 10 Tex. 140.) FAILURE TO TAKE OATH CONCERNING THE SALE. Statutes Requiring Oath Held Mandatory. § "10. In several states statutory provisions obtain requir- ing an administrator, executor or guardian to take an oath 19 290 VOID JUDICIAL AND EXECUTION SALES. before fixing on the time and place of sale, for the purpose of insuring greater fidelity in the performance of the added duties and responsibilities incident to the transaction. These statutes usually embrace five essentials, and one of these is the taking of the oath by the fiduciary before fixing on the time and place of sale, a compliance with which is in every rase considered imperatively essential to the validity of the sale, the provisions of the statute being generally considered mandatory. It is therefore held that no title will pass to the purchaser at such sale if the oath has not been taken in con- formity with the law in this regard. (Cooper v. Sunderland. 3 Iowa. 114 — 66 Am. Dee. 52; Thornton v. Mulquinne, 12 Iowa. 540 — 79 Am. Dec. 54*; Campbell v. Knights, 26 Me. 224 — 45 Am. Dee. 107: Wilkinson v. Filby. 24 Wis. 441; Williams v. Peed, 5 Pick. 4S0; Parker v. Nichols. 7 Pick. lll;iTracy v. Roberts. 88 Me. 310 — 34 Atl. Pep. 6S; Walker v. Goldsmith. 14 Ore. 125 — 12 Pac. Rep. 537; Ryder v. Flanders. 30 Mich. 336; Land Co. v. Kurtz, 45 Minn. 380 — 47 N. W. Rep. 1134; Bachelor v. Korb, 78 N. W. Pep. 4S5.) Where the time and place of sale were fixed before the oath was taken, but the sale was made subsequent thereto, the pro- ceedings were decided invalid in Wisconsin, where the su- preme court said: " The provision, however, is peremptory, that the oath required shall be taken before fixing the time and place of sale. Can the court say, in view of language so explicit, that the oath need not be taken before fixing on the time and place of sale, but may be taken at any subsequent time? We think the court has no right to take such liberties with the statute, and disregard a requirement so plainly ex- i ressed, even to sustain a sale otherwise regular. To do so would be to assume the province of the law-making power." (Blackman v. Eaumann, 22 Wis. 613.) To the same effect is the ruling of the supreme court of Michigan, Nebraska as well as that of Minnesota, where simi- lar provisions of statute obtain, (Ryder v. Flanders, 30 Mich. 336: Land Co. v. Kurtz, 45 Minn. 380 — 47 N. W. Rep. 1134; Bachelor v. Korb. 78 N. W. Rep. 485.) and a failure to comply with the requirement as to the oath may be shown in a collateral action, the statute being impera- tive and mandatory. EFFECT OF FAILURE TO GIVE ADDITIONAL BOND. 291 (Davis v. Hudson, 29 Minn. 27 — 11 N. W. Rep. 136; Montour v. Purdy, 11 Minn. :;s4 — 88 Am. Dec. 88; Eubermann v. Evans, 46 Neb. 7S4 — (55 X. YV. Rep. 1045; Bachelor v. Korb, 78 N. W. Rep. 48ft; Williama v. Reed, 5 Pick. 480; Ryder v. Flanders, 30 Mich. 33(3; Camp- bell v. Knight, 26 Me. 224. EFFECT Of FAILURE TO GIVE ADDITIONAL BOXD. Object of Requiring such Bond. § 317. Pursuant to the philosophy of the law and common experiences of mankind, the statutes usually exact an ad- ditional or sale bond from an executor, administrator or guar- dian before making' the sale as a safeguard against the mis- appropriation of the proceeds realized from the sale, as the order or license of sale increases the duties and augments the pecuniary responsibilities of the fiduciary, beyond the meas- ure of his ordinary duties and responsibilities incumbent upon him by virtue of his official capacity. The expediency of the statutory requirement of an additional bond is readily ap- parent, as it is the policy of the law to protect such estates from waste and sacrifice at the hands of these fiduciaries. Accordingly, where the statute requires an additional bond to be given as a condition precedent to the authority of the ad- ministrator or guardian to conduct the sale, such provisions have been many times held imperative. Such sales are con- sidered adversary proceedings as to the parties interested and the bond a statutory requirement intended for the protection of the heirs or ward, and a failure to give the same is held a fatal omission, not cured bv a subsequent confirmation of the sale. (Bunn v. Todd, 115 N. C. 138 — 20 S. E. Rep. 277; Judge of Probate v. Toothhacker, 83 Me. 105 — 22 All. Rep. 110; Currie v. Stewart, 27 Miss. 52 — 61 Am. Dec. 500; Williamson v. Williamson, 3 S. & M. 715 — 41 Am. Dec. 636: Rucker v. Dyer. 44 Miss. 591; Buckner v. Wood, 45 Miss. 57; Barnett v. Bull, 81 Ky. 127: Washington v. McCaughan, 34 Miss. 394 ; Hamilton v. Lockhart, 41 Miss. 460.) Under Healing Statutes Want of Bond is Fatal. § 318. As we have seen there is express provision of statute in at least eight states, among them Wisconsin, Michigan, Minnesota, Nebraska, Maine, Massachusetts and 29? VOID JUDICIAL AND EXECUTION SALES. "Washington, to the effect that in ease of an action relating to any real estate sold by an administrator or executor in which the heir or any person claiming under him, shall con- test the validity of such sale, the same shall not be avoided on account of any irregularity in the proceedings provided it shall appear among other things — five in number — that rh^ fiduciary gave a bond which was approved by the court before the sale. In Oregon this provision of the statute is extended only to sales by guardians, but in each of the other states it also applies to guardian's sales as veil as to sales by adminis- trators and executor-. Under these statutes it seems that all the requirements are made absolutely essential and a mandatory construction is put upon them by the courts. On principle it seems that there is but one of the five essentials, the order of sale, that is in its nature jurisdictional, while all the rest, including the requirement respecting the additional bond, can on principle be in no way considered as having any connection with the jurisdiction of the court. But in each of these states the failure to furnish the sale bond as provided by the statute is a fatal omission exposing the sale to successful collateral im- peachment. (Weld v. Johnson Mfg. Co.. 84 Wis. 537 — 54 N. W. Rep. 335; Melms v. Pfister, 59 Wis. 186 — 18 N. W. Rep. 255: Land Co. v. Kurtz. 45 Minn. 380 — 47 N. W. Rep. 1134; Williams v. Morton. 3S Me. 47 — 61 Am. Dee. 229; Babcock v. Cobb. 11 Minn. 347; Williams v. Reed. 5 Pick. 480; Gager v. Henry, 5 Sawyer. 237; Walker v. Goldsmith, 14 Ore. 125 — 12 Pac. Rep. 537; Perkins v. Fairfield. 11 Mass. 226; Bachelor v. Korb, 78 X. W. Rep. 485.) Where no Healing Statutes Exist Want of Bond not Fatal. § 319. The doctrine announced in the last section is ex- clusively based upon the peculiar requirements of statute, and therefore, when unsupported by such provisions the rule announced that a sale by an administrator, executor or guar- dian without a bond is void is unsustainable and wholly un- tenable upon principle and authority, for the jurisdiction of the court having theretofore been properly invoked, the bond is entirely foreign to the question of jurisdiction, and mani- festly but a mere irregularity when not given and obviously insufficient to make the proceedings of sale void, though of sufficient gravity to warrant a denial of confirmation if prop- EFFECT OF FAILURE TO GIVE ADDITIONAL BOXD. 293 erly brought to the attention of the court. Being- hut an irregularity, the sale by reason thereof is at besl but voidable, and the infirmity cured by confirmation so thai it can not be attacked in a collateral way in any event. In this regard the supreme court of Iowa in a comparatively late case said: " In the absence of a sale bond, it would doubtless be error to approve the sale; but where the jurisdiction attached, and the sale has been approved, it can not, we think, be successfully attacked in a collateral proceeding ". (Hamiel v. Donnelly, 75 Iowa, 03 — 39 N. W. Rep. 210.) And the principle here announced is also maintained in other late and well-considered cases in both state and federal courts. (Arrowsmith v. Gleason, 129 U. S. 86 — 9 Sup. Ct. Rep. 237; David- son v. Rates. Ill Ind. 391 — 12 N. E. Rep. 687; Arrowsmith v. Har- moning. 42 Ohio St. 254: Howbert v. Heyle, 47 Kan. 58 — 27 Pac. Rep. 116; Bunce v. Bunee, 59 Iowa, 533 — 13 N. W. Rep. 705; Wyman v. Campbell, 6 Port. 219 — 31 Am. Dee. 677: Ex parte Maxwell, 37 Ala. 362 — 79 Am. Dec. 62; Maurr v. Danish. 26 Ohio St. 636; West v. Cochran, 104 Pa. St. 482; Rahwn v. Com., 102 Pa. St. 450.) If the master in chancery has failed to file his bond as such before the sale it is not a defect which will expose the proceedings to collateral attack, after the same has been ap- proved by the chancellor. (Nichol v. Nichol, 8 Paige. 349.) In Indiana it is held that where a bond was required from the administrator or guardian as a condition precedent to the sale by him of the real estate of the ward or decedent under the license of the court, but no bond was in fact given, yet when it appeared that the sale was made and duly confirmed, and the proceeds received therefrom have been faithfully ac- counted for, the sale can not be said to be void, because every- thing has been accomplished without the bond that eventually could have been with it. the only object being to guard against the possibility of misappropriation of the funds, and the ward or heirs having received the money, they have no equity in a suit to recover the property. (Marquis v. Davis. 113 lml. 219 — 15 N. E. Rep. 251; Dequindre v. Williams, 31 Ind. 444; Foster v. Birch, 14 Ind. 445; Davidson v. Bates, 111 Ind. 391 — 12 N. E. Rep. 687.) 294 VOID JUDICIAL AND EXECUTION SALES. But on the other hand, if the proceeds have been misappro- priated or lost by the guardian, when he has failed to give the additional bond, the ward may treat the sale as void, but it can be avoided only in a direct, and not in a collateral pro- ceeding. (Marquis v. Davis, 113 Ind. 219 — 15 ¥. E. Eep. 251; McKeever . r. Ball, 71 Ind. 398.) EFFECT OF WANT OF NOTICE OF SALE. The Object of the Notice of Sale. § 320. Manifestly, the object of the statutory requisite for notice of the time and place of sale is to disseminate the in- telligence of the occurrence of the sale so that a better price will be realized, as a spread of the knowledge of the sale pro- duces competition thereat. The purpose of the notice is prin- cipally, then, to prevent a sacrifice of the debtor's property. The notice of sale is almost a universal requisite in judicial and execution sales. In judicial sales the infirmity caused by a defective notice, or the entire omission of the notice, is cured by the subsequent confirmation, though if objection to the confirmation is made in time the court will unques- tionably refuse to sanction it because of the defect; and so long as there is a retention of jurisdiction in the court it will entertain a motion to vacate the sale for a want of notice or a radical defect in the same. Or in the exercise of its super- visory power the court may set the sale aside even when no objections are raised upon this ground. (Helmer v. Rehm. 14 Neb. 219 — 15 N. W. Eep. 344; Moffitt v. Moffitt, 69 111. 641; Brubaker v. Jones, 23 Kan. 411; Jackson v. McGruder, 51 111. 55; Bland v. Muncaster, 24 Miss. 62—57 Am. Dec. 162; Morrow v. Weed, 4 Iowa. 77 — 66 Am. Dec. 122; Hudgens v. Jackson. 51 Ala. 514; Cooley v. Wilson. 42 Iowa. 428; Hanks v. Neal, 44 Miss. 212; McNair v. Hunt, 5 Mo. 301.) Purchaser Free from Fault. § 321. If fault can not be imputed to the purchaser at an execution sale fo« having participated in occasioning it, the circumstance that there was a failure to publish the notice of sale required by statute will not defeat the sale, according to the great weight of judicial opinion in America. Statutes EFFECT OF WANT OF NOTICE OF SALE. 295 prescribing notice of sale have generally been construed as of directory import, and a non-compliance therewith but an ir- regularity which, although amply grave to warrant the court in vacating the sale if moved to that effect in time, but it can not affect the rights of innocent purchasers without notice, when assailed in a collateral proceeding. (Rounsaville v. Hazen, 33 Kan. 71 — 5 Pac. Rep. 422; .Morris v. Has- tings, 70 Tex. 26 — 7 S. W. Rep. 649; Quarks v. Hiern, 70 Miss. S91 — 14 So. Rep. 23; White v. Farley, si Ala. 563 — 8 So. Rep. 215; Evans v. Robberson, 92 Mo. 192 — 4 S. W. Rep. 941; Herrick v. Davis, 27 Ga. 107 — 73 Am. Dee. 726; Brooks v. Rooney. 11 Ga. 423 — 56 Am. Dec. 430; Huffman v. Gaines, 47 Ark. 226 — 1 S. W. Rep. 100; Howard v. North, 5 Tex. 290 — 51 Am. Dec. 709: Draper v. Bryson, 17 Mo. 71 — 57 Am. Dee. 257; Minor v. Natehes, 4 S. & M. 602 — 43 Am. Dec 488; Maddox v. Sullivan. 2 Rich. Eq. 4 — 44 Am. Dec. 234; Smith v. Randall, 6 Cal. 47 — 65 Am. Dec. 475: Ware v. Bradford, 2 Ala. 676 — 36 Am. Dec. 427; Solomon v. Peters, 37 Ga. 255.) Pursuant to this rule an innocent vendee of the original pur- chaser having no notice of any irregularity will be protected in any event, whether relief is sought against him by motion in the original case, or the jurisdiction of equity is invoked to accomplish the same purpose, though where the judgment creditor himself becomes the purchaser his assignee is charge- able with notice, or where the attorney of record of the plain- tiff becomes the purchaser he is chargeable with notice of ir- regularities, whether he has actual notice thereof or not. (Collins v. Smith, 57 Wis. 2S4 — 15 N. W. Rep. 192; Huffman v. Gaines, 47 Ark. 226 — 1 S. W. Rep. 100; Smith v. Huntoon, 134 111. 24 — 24 N. E. Rep. 971: Quarles v. Hiern, 70 Miss. 891 — 14 So. Rep. 23; Branch v. Foust, 130 End. 538 — 30 N. E. Rep. 631; Morris v. Roby, 73 111. 402: Wright v. Dick, 116 Ind. 538—19 N. E. Rep. 308; Nelson v. Bronneburg, 81 Ind. 193; Mixer v. Sibley, 53 111. 61; Hudepole v. Water Co., 94 Cal. 588 — 29 Pac. Rep. 1025.) Fraud and Collusion Imputed to Purchaser. § 322. Even where notice of sale is not considered an in- dispensable requisite to a valid execution sale, yet, if such irregularity is the result of a fraudulent and collusive scheme concocted by the purchaser himself, or participated in by him, and the property was disposed of for a grossly inadequate price, the vendee and these purchasing from him with notice, as a necessary consequence, hold under an illegal and void 296 VOID JUDICIAL AND EXECUTION SALES. sale for fraud which may be vacated by a proper proceeding for that purpose. (Morris v. Hastings, 70 Tex. 26 — 7 S. W. Eep. 649; Stone v. Day, 69 Tex. 13 — 5 S. W. Rep. 642; Hayden v. Dunlop, 3 Bibb, 216.) In Administrators', Guardians' and Other Judicial Sales. § 323. In judicial sales the fact as to whether or not there is a sale at all is dependent upon the subsequent entry of the order of confirmation, at the granting of which all objections may be heard, and the entire proceedings are considered by the court, so that the legitimate effect of the confirming order is that the sale is regular and unincumbered with any irregu- larities. Expediency and the force of reason dictate this to be the proper rule to be invoked, that the investigation re- specting the existence and sufficiency of the notice of sale is limited by the order of confirmation, which, when once en- tered, precludes further inquiry as to the notice or its sufficiency. What is true in this regard as to sales in chancery is also true as regards sales by administrators, executors and guar- dians, for if these sales may be assailed after confirmation be- cause of a defective notice or a want of notice of sale, the utter futility of the confirming order is at once apparent. Subsequent assault, if permitted, would involve a re-examina- tion into the issues raised and determined by a court of com- petent jurisdiction, which would be equivalent to a nullifica- tion of the original order of confirmation. (Hudcrens v. Jackson, 51 Ala. 514 — Mofiitt v. Moffitt. 69 111. 641; Morrow v. Weed, 4 Iowa, 77 — 66 Am. Deo. 122; Curd v. Lackland, 49 Mo. 451; Minor v. Selectmen, 4 rt. & M. 602; Bland v. Muncaster, 24 Miss. 62 — 57 Am. Doc. 162; Hanks v. Neal, 44 -Miss. 212; McNair v. Hunt, 5 Mo. 301; Cooley v. Wilson, 42 Iowa, 42S ; Phillips v. Coffee, 17 III. 154 — 63 Am. Dee. 357; Lum v. Reed, 53 Miss. 73.) In States Having a Healing Statute Notice Essential. § 324. In all those states having healing statutes as to sales by administrators, executors and guardians wherein one of the five essentials is a notice of sale, the want of such notice is a defect of as grave a nature as the want of the bond or the oath. As to all these essentials enumerated in the statute the pro- ceedings of sale are considered of an adversary nature as to the heir or ward, and the defect of the omission of the notice EFFECT OF WANT OF NOTICE OF SALE. 2'.) 7 or its fatal defect, is not susceptible of being cured by subse- quent confirmation of the sale by the court. An omission of any one of the five enumerated essentials is fatal and the sale must fall to the ground in consequence thereof, the statutory requirement as to notice being considered mandatory. (Tracy v. Roberts, 88 Me. 310 — 34 Atl. Rep. 6S; Hubermann v. Evans, 46 Neb. 7S4 — 65 N. W. Rep. 1045: Walker v. Goldsmith, 14 Ore. 125 — 12 Pac. Rep. 537; Montour v. Purely. 11 Minn. 384 — 88 Am. Dec. 88; Davis V.Hudson, 29 Minn. 27 — 11 N. W. Rep. 136; Hartley v. Croze, 38 Minn. 325 — 37 N. W. Rep. 449; McGmbb v. Bray. 36 Wis. 333; Hobart v. Upton. 2 Sawyer, 302; Thomas v. Le Barron, 8 Met. 358.) Notice an Imperative Requirement. § 325. In some states it is contended that the legal notice of sale required by the statute is an imperative requisite — a substantial right conferred upon the judgment debtor by law and not capable of being taken away or disregarded by con- struction — without which the proceedings are impregnated with an inherent defect wholly vitiating the sale. The fact that the execution defendant had knowledge of the sale, or even was present thereat and refrained from objecting thereto because of the want of a prior legal notice of sale, under this line of cases, is entirely immaterial. Only conduct equivalent to a waiver of notice will preclude subsequent inquiry into the proceedings where no notice was given. By the tenor of these decisions the statutory provision regarding notice of sale is mandatory. (Bowman v." Knott. 66 X. W. Rep. 457: Carney v. Carney, 10 Yerg. 491 — 31 Am. Dec. 590: Smith v. Gates. 21 Pick. 55; Birch v. Bates. 22 La. Ann. 198: Mitchell v. Lipe. 8 Yerg. 179 — 29 Am. Dec. 116; Carrier v. Esbaugh, 70 Pa. St. 239; Henderson v. Hay, 41 N. J. L. 387 ; Lloyd v. Anglin. 7 Yerg. 428; Griswold v. Sundback, 6 S. Dak. 269 — 60 N. W. Rep. 106S; Farquhar v. Toney, 5 Humph. 502.) Diametrically the opposite is assorted in other oa«es where it is held that the failure to give the statutory notice is not fatal to the sale. (Frink v. Roe. 70 Cal. 296 — 11 Pac Rep. 820; Smith v. Randall, 6 Cal. 47—65 Am. Dec. 475.) Notice May be Waived. § 326. Xotice of sale being provided for the benefit of the judgment debtor it is a requirement which may be waived, as for instance, openly acquiescing in the sale or knowingly 298 VOID JUDICIAL AND EXECUTION SALES. accepting the "whole or a part of the proceeds realized from the sale of the property. (Huffman v. Gaines, 47 Ark. 226 — 1 S. W. Rep. 100; Palmerton v. Hoop, 131 Ind. 23 — 30 N. E. Rep. 874; Ogden v. Dupuy, 99 Ala. se- ll So. Rep. 419; Bumb v. Gard, 107 Ind. 575 — 8 N. E. Rep. 713; Pate v. Hinson, 104 Ala. 599 — 16 So. Rep. 527; Southard v. Perry, 21 Iowa, 488 — 89 Am. Dec. 587; Turner v. Watkins, 31 Ark. 429.) But if such waiver operates prejudicially to the interests of existing creditors the sale may be avoided, notwithstanding the defendant'? waiver of the irregularity. Upon the same principle a debtor in failing circumstances is prohibited from dispensing with any of the statutory formalities in a sale of his property made under execution, as this would constitute a fraud upon his creditors. (Gibba v. Neely, 7 Watts. 305; McMichael v. MeDermott. 17 Pa. St. 353 — 55 Am. Dee. 560; Succession of Hiligsberg, 1 La. Ann. 340.) TIME AKD PLACE BIDS RECEIVABLE. Bid Must be Made at Time of Sale. § 327. Public policy requires, and the law contemplates scrupulous impartiality upon the part of the officers conduct- ing sales under the administration of the law, and to avert the possibilities of collusion between the purchaser and the sell- ing officer, the bid should be made at the time of sale. Whether or not the proffered bid shall be accepted must be determined by the officer, and may depend upon the peculiar circumstances with which the transaction is environed. To make such determination with absolute impartiality as he is presumed to do in contemplation of law, he is prohibited from entertaining any bid not made at the time of sale, but which has been previously submitted to him for consideration. A consideration of a previously offered bid not made public would make him, in theory of law, the agent of the absent pur- chaser, which the law will not tolerate. In contemplation of law the sheriff, in making the sale, is the agent of both the judgment debtor and creditor, and as such is bound to act with the utmost fidelity and impartiality. The assumption on his part, of the position of agent for a third party, the absent bid- der, would be repugnant to the principles of morality and good TIME AND PLACE BIDS RECEIVABLE. 299 conscience, and violative of the spirit if not the letter of the law. (Harrison v. McHenry, 9 Gait 164 — 52 Am. Dec. 435; Hobbs v. Beavers, 2 Ind 142 — 52 Am. Dec. 500: Dorsett v. Gerrard, 85 Ga. 734 — 11 S. E. Rep. 768; Wilson v. Twity. 3 Hawks, 44-14 Am. Dec. 509; Mayor v. Huff, CO Ga. 221; Seaman v. Riggins, 1 Green. Ch. 214 — 34 Am. Dec. 200. ) But the purchaser may send his bid in writing with the person elected or appointed to conduct the sale, and if the same is publicly announced by the officer as a bid and the land is struck off upon such submitted bid as the highest and best, the sale is valid. (Wenner v. Thornton, 98 111. 156; Dickerman v. Burgess, 20 111. 266.) The officer has absolutely no power in an execution sale to receive a conditional bid, but is restricted to a consideration exclusively of unconditional bids for cash. (Dewey v. Willoughby, 72 111. 250; Swope v. Ardery, 5 Ind. 213; Chap- man v. Harwood, 8 Blackf. 82.) Plaintiff's Bid when no Other Persons Present. § 328. There is authority to the effect that, as execution sales must, under the policy of the law, be public, the sale is void unless there are bidders thereat other than the judgment creditor, who is, in law, considered the controller of the sale. That when the sale is made to the judgment creditor in the absence of all other bidders or bystanders, the presumption of collusion between such purchasing creditor and the sheriff is irresistible and conclusive, and the sale void. (M,. Michael v. McDermott, 17 Pa. St. 353 — 55 Am. Dec. 560; Ricketts v. Unangst, 15 Pa. St. 90 — 53 Am. Dec. 572.) This is a doctrine not only against principle and reason but also in opposition to the current of authority, for if the sale is otherwise fair and regular, there can be no valid reason assigned why it should be adjudged void because the judgment creditor was the only bidder at the sale. Pursuant to the more recent cases the sale under circumstances of this kind is valid. (Power v. Larabee. 3 N. Dak. 562-57 N. W. Rep. 789; Learned v. Geer, 139 Mass. 31 — 29 N. E. Rep. 215.) 300 VOID JUDICIAL AXD EXECUTION SALES. SALES MADE AT AN IMPROPER OR UNAUTHOR- IZED PLAOE. In Judicial Sales an Irregularity Merely. § 329. There is an irreconcilable conflict of authority as to the effect upon the sale if the same is conducted at an un- authorized or improper place, some of them contending that it is only an irregularity making the sale merely voidable, while others maintain that it makes the sale altogether nuga- tory. In sales of land under decrees or orders of court when the place of sale is designated therein, or when the notice designates a particular place, the sale must occur thereat, or else it is beyond a peradventure of doubt irregular and will be vacated if application therefor is made in due time by any one interested. The sale occurring at an improper or un- authorized place is manifestly more pernicious in its effects upon the validity of sales under executions than in technical judicial sales, for in the latter the whole proceedings of the selling officer under the decree or order are brought up to be passed upon when the sale comes up for confirmation, and when confirmeed, the irregularity, not being of a jurisdictional nature, is cured. (Morrow v. McGregor, 47 Ark. 67 — 4 S. W. Rep. 40: McCullough v. Estes, 20 Ore. 349 — 25 Pac. Rep. 724 ; Brown v. Christie, 27 Tex. 73 — 84 Am. Dec. G07.) Execution Sales of Land Outside of County are Void. § 330. Undoubtedly by the decided weight of judicial au- thority a sale of land under execution made outside of the territorial limits of the county wherein the particular premises sold are situated is absolutely void, being in contravention of the provisions of statute in this regard and incapable of confirmation or ratification and subject to collateral impeach- ment, if the face of the record discloses the defect. The rea- son assigned is that the jurisdiction under the process is simply co-extensive with the limits of the county, and any authority exercised under it beyond the confines of such comity is ex- tra-territorial and unauthorized. Being void the circumstance of acquiescence of the judgment debtor will nor infuse into it any validity. Statute- prescribing the place where execution 301 SALES MADE AT AX IMPEOPEE OR IN AUTHORIZED PLACE. sales shall be held have been generally construed as imperative and mandatory, and consequently a sale made in violation of their provision in this particular is void. (Moody v. Moeller, 72 'lex. 635- L0 S. W. Rep. 727; Orr v. Owens, 128 Ind ""9 — 27 N. E. Rep. 493; Oldfield v. Eulert, Us 111. 614 — 36 N E Rep. 615; Terry v. Cutler, 4 Tex. Civ. App. 570-23 B. W. Rep. 539; Sinclaire v. Stanley, 64 Tex. 67; Short v. Hepburn, 75 Fed. Rep. 113- Terry v. Cutler, 39 S. W. Rep. L52; Menges v. Oyster, 4 W. & b. 20-39 Am. Dec. 5G; Aired v. Montague, 20 Tex. 732-84 Am. Dec. 603- Howard v. North, 5 Tex. 290-51 Am. Dec. 769; Thacker v. Duvol. 50 Ind. 30; Jenners v. Doe. 9 Ind. 461; Hanby v. Tucker, 23 Ga. 132 — 68 Am. Dec. 514; Holmes v. Taylor, 4S Ind. 169.) But a judicial sale where the officer is authorized to do so by the decree or order, is not void for having been held out- side of the county wherein the land lies. (Bank v. Trapier, 2 Hill Ch. 25; Goldtree v. McAllister. S6 Cal. 93 — 24 Pae. Rep. S01; McCullough v. Estes, 20 Ore. 349-25 Pac. Rep. 724.) Of Personal Property Sold under Execution. § 331. To prevent unnecessary sacrifice, and in order to propitiate to facilitv for inspection by intending purchasers at forced sales of personal property, enabling them the better to appreciate the nature and qualities of the same, the prop- er! v should be located at or near where the sale takes place, and if not present it is itself amply sufficient to invalidate the sale pursuant to statute, and is also condemned by the com- mon law without the aid of statute. Such sales purport to be public and the courts are inclined to enforce the rule with marked vigor. (Penney v. Earle, S7 Me. 167-32 Atl. Rep. 879; Dawrv v. Ellis, 8o Me 5 oo_27 Atl. Rep. 518; Foster v. Mabe. 4 Ala 402-37 Am. Dec. 749- Wright v. Mack, 95 Ind. 322; Kean v. Newell, 1 * Mo. 754-14 Am. Dec' 321- Phillips v. Brown, 74 Me. 549; Murphy v. Hill, 77 Ind. 129; Hazzard v. Benton, 4 Harr. 62; Eads v. Stephens. 63 Mo. 90.) Hence sales of personal property made under ordinary exe- cutions, when the property was not present or at least located with sufficient proximity to the place of sale to admit of con- venient examination, have been decided by the vast pre- ponderating current of authority to be contrary to public policy and unequivocally void. (Alston v. Morphew, 113 N. C. 460-18 S. E. Rep. 335; ^Yeomans v. Bird, 81 Ga. 340 - 6 S. E. Rep. 179; Morrow v. McGregor, 47 Ark. G, - 302 VOID JUDICIAL AND EXECUTION SALES. 4 S. W. Rep. 49; Rowan v. Refeld, 31 Ark. 648; Kennedy v. Clayton, 29 Ark. 270 ; Collins v. Montgomery, 2 N. & McC. 39 ; Bostwick v. Keizer, 4 J. J. Marsh. 597 — 20 Am. Dec. 237; Brown v. Pratt, 4 Wis. 513 — 65 Am. Dec. 3.30; Newman v. Hook. 37 Mo. 207 — 90 Am. Dec. 378; Blanton v. Morrow, 7 Ired. Eq. 47 — 53 Am. Dec. 391; Ainsworth v. Greenlee, 3 Murph. 470 — 9 Am. Dec. 615; Cresson v. Stout. 17 Johns. 116 — 8 Am. Dec. 373; Baker v. Casey, 19 Mich. 220; Murphy v. Hill, 77 Ind. 129; Winfield v. Adams, 34 Mich. 437; Shinier v. Mosher, 39 Hun, 155; Gaskell v. Aldrich, 41 Ind. 338; Tibbitts v. Jageman, 5S HI. 43. Though it is held in Illinois and Missouri that where the sale was conducted in the proper county, after a proper lew, the fact that the property was not present at the time of sale did not make the sale absolutely void. (Cook v. Timmins, 67 111. 203; Eads v. Stephens. 63 Mo. 90.) So a sale of personal property under the process from a justice's court, where the sale is made outside of the township in which the justice resides is void. (Beamer v. Winter. 41 Kan. 596 — 21 Pac. Rep. 1078; Paulsen v. Hall, 39 Kan. 365 — 18 Pac. Rep. 225; Beamer v. Winter, 41 Kan. 297 — 21 Pac. Rep. 251. SALES WITHOUT APPRAISEMENT OR INQUISI- TION. Are Void by the Current of Authority. § 332. In several states statutes have been enacted provid- ing that before an execution sale can be made an appraise- ment or inquisition of the land must be made, and when sold the minimum amount that can bo lawfully accepted must bo not less than a certain proportionate part of the appraised value. The object of such statutes is the prevention of sacri- fice of the defendant's property so frequently attending a com- pulsory sale under the coercive process of the law. These statutes have generally, though not universally, boon construed as mandatory, and a sale made in contravention thereof by reason of an entire omission of all appraisement, or a sale for a sum less than the prescribed proportion of the value of the property as ascertained by the inquisition, is illegal and void, unless the appraisement has been waived by the judgment debtor. (De Jarnette v. Yernor, 40 Kan. 224 — 10 Pac. Pep. 666; Sprotl v. Reid, 3 G. Greene, 489 — 56 Am. Dec. 549; Bank v. Huntoon. 35 Kan. SALES WITH0U1 APPEAISEMENT OK INQUISITION. 303 577-11 Pac Rep. 369; Bank v. Hamer, 70 N. W. Rep. 407: Hefferlm C Unldl;,., , L 401 -85A».l^^;lto«T^*«N* 466-64 N.W. Rep. 1113; Brown v. Butters, 40 [owa, 544; Gardne, v. Si, k 54 Pa. St. 506; Smith v. < ockrell, 6 Wall. 756; Railway J o. - I ,', • ,,„1 23- Wolf v. Payne, 35 Pa. St. 97; Collier v. Stonbough, «How M ^^Mlhe;rHol m es,?5lnd.458 ; Gantleyv.Ewing,3How. „ , i n ■ •• p.l.ickf 1- Baird v. Lent, b waits, *f such party during- the existence of the community. Such individual in- terest can not be reached to satisfy such claims until after the dissolution of the community by death or otherwise, and then only subject to the community debts which are a prior charge on such property. (Stockand v. Bartlett, 4 Wash. 730 — 31 Pac. Rep. 24.) SALES OF PARTIAL ESTATE ONLY, OR OF DIF- . FERENT INTEREST. Where Execution Defendant is Owner of Entire Fee. § 348. It is a general rule of law that whenever land is sus- ceptible of subdivision, and one or more of the subdivisions are of sufficient value to satisfy the mandates of the writ, the officer making the levy is charged with the duty of selling a portion only of the entire estate, and not the whole thereof, so as to avoid unnecessary sacrifice. But the philosophy of this rule is wanting in a ease where the judgment debtor is the owner of the entire estate in fee simple in a particular tract of land, and the officer in the possession of a general execution seeks to levy upon and sell a fractional undivided interest in the entire estate. The execution debtor being the absolute owner of the whole interest or estate in such tract the law will not permit the plaintiff to make the owner and the execution purchaser tenants in common by a sale in this man- ner. Hence a sale of a fractional interest when the whole estate belongs to the debtor is void. (Wilbanks v. Untrine, 93 Ga. 801 — 25 S. E. Rep. S41 : Eberstine v. Oswalt. 47 Mich. 2:,4 — 10 X. W. Rep. 360; Crane v. Guthrie, 47 Iowa, 542; Braley v. Simonds, 01 X. H. 300.) Sales in Probate Proceedings. § 349. The statutory authority to sell property in estates in probate is a special power, and upon this principle it ha* been decided that nothing but the entire interest of which the de- 314 YOID JUDICIAL AXD EXECUTION SALES. cedent died seized in the particular premises involved, can be sold. A sale of an undivided interest in such land when the estate is the owner of the complete title is an absolute nullity. (Daly's Appeal. 47 Mich. 443 — 11 X. W. Eep. 262; Eberstein v. Os- walt. 47 Mich. 254—10 X. W. Rep. 360.) The probate court licensed the administrator to sell and convey the equity of redemption in the premises whereof the decedt nt was seized with the unincumbered fee, and the sale was held void, because there was no such interest to dispose of as was ordered to be sold, and further because the court had not authorized the fiduciary to sell and convey an estate in fee. (Braley v. Simonds, 61 N. H. 369; Crane v. Guthrie. 47 Iowa. 54^'.) Sales of Property Subject to Mortgage. § 350. Where the common law theory of a mortgage ob- tains, if a tract of land is levied on and sold subject to a mort- gage, when in fact the mortgage had theretofore been fully liquidated, the proceedings are wholly ineffectual and pass no title or estate in the property. The property having been levied on and sold subject to the mortgage, in contemplation of law there was a sale of no other estate than an equity of re- demption, which, as a logical sequence from the fact of pay- ment, is not an existing interest, and hence nothing was sold. (Dougherty v. Linthicum, 8 Dana. 198; Barrett v. Stearns. 73 Me. 21; Brown v. Snell. 46 Me. 490.) The rationale of the rule preventing both court and officer from dissecting an estate complete in itself and vested in the judgment debtor, or the estate of a decedent, into different interests, vested by virtue of the sale in different individual-, and all constituting but an estate in fee, finds ample justifica- tion in the prevention of a deterioration in the value of the property by reason of its division. This is sufficient to justify the enunciation of the rule, and it seems that the considera- tion for its announcement is substantially confined to this ground. SALES OF LANDS IX ADVERSE POSSESSION. 315 SALES OF LANDS IN ADVERSE POSSESSION. At Common Law was Void. § 351. Under the common law a conveyance of land which was not at the time in the possession of the grantor was unconditionally void. In order to transfer the estate de- livery of possession was absolutely essential under the doctrine of the common law. By the English statute, 32 Henry, 8, c. 1>, a conveyance by a disseized owner was a criminal offense on the part of both vendor and vendee, working a forfeiture of the property sought to he. conveyed. (Knowles v. Blodgett, 15 R. I. 403 — S Atl. Rep. 691; Burdick v. Bur- dick. 14 R. I. 574; Inglis v. Trustees, 3 Pet. 99; Livingston v. l'roseus, 2 Hill. 520 ; Williams v. Jackson, 5 Johns. 489; Jackson v. Demont, 9 Johns. 55; Martin v. Pace. 6 Blackf. 99.) A similar rule obtains in New York and Indiana to volun- tary conveyances of lands similarly held, the conveyance be- ing considered void as to the person holding the adverse pos- session, under express statute in the former state and under the doctrines of the common law in the latter. (Pearce v. Moore, 114 X. Y. 256 — 21 X. E. Pep. 419; Patterson v. Nixon, 79 Ind. 251; Steeple v. Downing, 00 Ind. 178; Kite v. Doe, 1 Blackf. 127; Insurance Co. v. Grim, 32 Ind. 249; Martin v. Pace, 6 Blackf. 99; Galbreath v. Doc, 8 Blackf. 366.) Void under Process of Law. § 352. Founded upon this policy of the common law, held to have heen injected into our own jurisprudence by adoption, it, has been held in Rhode Island, New York and Kentucky that a sale of land under the coercive process of law, when the property at the time was held in adverse possession of a third person, is void and passes no title to or interest in the premises thus ostensibly sold to the purchaser. (Campbell v. Iron Works. 12 R. I. 452; Shepherd v. Mclntire, 4 .1. .1. Marsh. 110; Rung v. Grim, B. Mon. 368; Jackson v. Hopkins, 13 Johns. 488.) Does not Affect Execution or Judicial Sales. § 353. In some of the states the ancient doctrine of the common law has been abrogated by express statute, and in others the rule has been altered by judicial construction. The 31(5 VOID JUDICIAL AXD EXECUTION' SALES. social condition of mankind lias undergone remarkable trans- formations since the formation of this ancient policy of the law prohibiting the conveyance of land in adverse possession of another, and the conditions not now existing which prompted the establishment of the rule, there seems to be no valid reason to longer adhere to this tradition of antiouity. Accordingly, while there is a conflict of authority upon this proposition, the overwhelming weight of judicial opinion an- nounces the rule that this doctrine has no application to exe- cution and judicial sales, these being beyond the scope of the ancient inhibition against voluntary conveyances, and that these sales will be substantial irrespective of the question as to whether or not the judgment debtor is or is not seized of the premises involved. (High v. Xelms. 14 Ala. 350 — 4S Am. Dec. 103; Ronan v. Meyer, 84 Ind. 390: Violet v. Violet, 2 Dana. 323; Frizzle v. Veach, 1 Dana. 211; McGill v. Doe. 9 Ind. 306; Stevens v. Houser, 39 N. Y. 302; Smith v. Scholtz, 68 X. Y. 41; Truax v. Thorn, 2 Barb. 156; Hoyt v. Thompson, 5 N. Y. 320.) INDEFINITE OR UNDESIGNATED TRACT SOLD. If Inherently Defective in Description Sale Void. § 354. It is elementary that when the description of the premises attempted to be sold at an execution or judicial sale is so inherently defective that it is impossible to ascertain therefrom what property is involved or intended, the proceed- ings of sale can not be otherwise regarded than as nugatory for indefinite] less. The officer's intention can not be shown by extrinsic evidence where the description is inherently in- sufficient, or in ease of patent ambiguity. (Tatum v. Croom, GO Ark. 487 — 30 S. VV. Rep. 885 ; Smith v. Crosby, 86 Tex. 15 — 23 S. W. Rep. 10; Roberts v. Deeds, 57 Iowa, 320 — 10 \. W. Rep. 740; Pfeifler v. Lindsay. 66 Tex. 123 — 1 S. \Y. Rep. 264; Smith v. Blaekiston, s\! Iowa, 240 — 47 X. W. Rep. 1075: Shoemaker v. McGonigal, 86 [nd. 422; Griffith v. Filey, 76 Iowa. 292 — 41 X. W. Rep. 21; Mason v. While. 11 Barb. L87; Norris v. Bunt, 51 Tex. 609; Deloaeh v. Bank, '.'7 Ala. 437; Waters v. Duval. 6 G. & J. 76: Brigance v. Erwin, 1 Swan. 375.) Hence, where the description is so imperfect as to fail en- tirely to describe a tract of land, or is applicable to several INDEFINITE OB UNDESIGNATED TRACT SOLD. 317 tract, and therefore indefinite, if the ambiguity in either case nms through tl e whole proceedings it is unconditionally void for uncertainty or ambiguity. (Poindexter v. Doolittle, 54 Eowa, 52 — 6 N. W. Rep. 136. ) Sales of undesignated or unlocated tracts made between private individuals, as for instance of a specific quantity to be taken from a choice of designated localities where such Lo- calities are themselves definitely established, would perhaps be enforced upon the exercise of the right of selection given by the terms of the contract of sale, and undoubtedly eqiiity would decree a convevance to the enumerated quantity, when the grantee has exercised his right of selection. However, if the contract of sale be embodied in the formality of a deed of present, grant it would evidently he inoperative as a con- veyance of a legal title to any particular tract, and the in- strument would he ineffectual for any purpose. Before "definitely located by the exercise of the right of selection, or before subsequent voluntary conveyance, or subsequent con- vevance by decree in equity, the grantee and grantor are treated as tenants in common. But even a contract to convey a certain number of acres in a certain county or state, with no other or further description would he void for vagueness and uncertainty, even between private parties. (Dull v. Blum, 68 Tex. 299-4 S. W. Rep. 489; Hamilton v. Harvey, 101 ni 4(^-13 N. E. Rep. 210: Nippolt v. Kammon, 39 Mran. 61i 4~0 N. W. Rep. 266 ; Carlyon v. Eade, 48 Iowa, 707: Winter v. Tramor 151 111. 191-37 N. E. Rep. 8G9 ; Clipson v. ViUars, 151 HI. 165-37 N. E. Rep. 695.) But the law is not so indulgent with the purchaser under a compulsory sale as it is to a purchaser at a private sale as it does not concede him to he a tenant in common with the grantor as it would in a private sale, hut on the contrary the sale will he considered void for uncertainty, and no title or right will inure to the purchaser thereby. Execution sales are ministerial acts by an officer who- authority is measured and limited by the law which is the source of his omciaJ power, and the functions of the court have terminated with the rendition of the judgment upon which the execution issued (Harris v. Shafer, SG Tex. 314-28 S. W. Re P J>76 5 Smith -Crosby, 86 Tex. 15 — 23 S. W. Rep. 10; Pemberton v. McRea, -5 V C. 497, 318 VOID JUDICIAL AND EXECUTION SALES. Wooters v. Arledge, 54 Tex. 395; Owen v. Barksdale, 8 Ired. 81; Stout v. Cook County, 37 111. 2S3 ; Deloach v. Bank, 27 Ala. 437; Lecoutour V. Peters, 57 Mo. A pp. 449; Wofford v. MeKinna, 23 Tex. 36; Evans v. Ashley, 8 Mo. 177. ^ EFFECT OF INADEQUACY OF PRICE. Mere Inadequacy alone not Sufficient to Avoid a Sale. § 355. Considerable perplexing contrariety will be in- countered among the adjudications as to the effect of mere inadequacy of price unconnected with either irregularities, mistake, fraud or the like. In this regard there is a vast dif- ference between execution sales whore the purchaser's rights are generally absolute upon the payment of his bid, and chancery and probate sales, which are always under the con- trol of the court. The great preponderance of authority pro- mulgates the rule that, while it may be a badge of fraud, mere inadequacy of price alone is not sufficient to set aside a com- pulsory sale under the coercive process of law. (Hollister v. Vanderlin, 165 Pa, St. 248 — 30 Atl. Rep. 1002; Bank v. Fair Association, 2 S. Dak. 145 — 48 N. W. Rep. 852; Fidler v. John, 178 Pa. St. 112 — 35 Atl. Rep. 970; Nix v. Droughon, 56 Ark. 240 — 19 S. W. Rep. 669; Felton v. Felton, 175 Pa. St. 44 — 34 Atl. Rep. 312; Gunn v. Slaughter, 83 Ga. 124 — 9 S. E. Rep. 772: Fullerton v. Seiper, 34 Atl. Rep. 680; House v. Robertson. 34 S. W. Rep. 640; Robb v. Han- nah, 14 S. W. Rep. 360; Railway Co. v. Creed, 70 Cal. 497 — 11 Pac. Rep. 772; Cake v. Cake, 156 Pa. St. 47 — 26 Atl. Rep. 7S1.) The same rule is applied to judicial sales as obtains to execu- tion sales, for the courts zealously guard against all attempts to depreciate the value of the property sold, or to prevent full and fair competition thereaT. Yet notwithstanding all this it is the policy of the law to sustain and give stability to judicial sales, and in accordance therewith it has been many times held that mere inadequacy of price without more is insuffi- cient to avoid a judicial sale. (Carver v. Spence, 07 \'t. 563 — .'!2 Atl. Rep. 493; Morrisse v. Inglis, 46 N. J. Eq. 306 — 19 Atl. Rep. 16: Fowler v. Krutz, 54 Kan. 622—38 Pac. Rep. 808; Bliss v. Insurance Co.. 51 N. J. Eq. 630 — 25 Atl. Rep. 381; Lepper v. Mooyer. 82 Md. 649 — 33 Atl. Rep. 263; Leary'.s < as... 50 X. J. Eq. 383 — 25 All. Rep. 197; Iron Co. v. Railway Co., 49 N. J. Eq. 356 — 23 Atl. Rep. 1077: Thompson v. Ritchie, 80 Md. 247 — 30 Atl. Hep. 70S; Alms v. Gates, :;:.' S. \Y. Rep. 1088; Beam v. Johnson, 16 S. W. Rep. 140.) EFFECT OF CNADEQTJACT OF PRICE. 319 Gross Inadequacy Sometimes Held Sufficient to Avoid Sale. § 356. As a general rule both in execution and judicial sales, courts will refuse to se1 them aside merely upon the ground of inadequacy in the amount of the bid, yet the rule refusing relief upon this around is somewhat modified in some states, where relief is furnished when the price is grossly inordinate, violating the principles of justice and outraging the conscience. r riie inadequacy being id' sufficient magnitude the presumption of fraud is raised and the sale considered voidable without more. (Carrigan v. Sclinii.lt. 126 Mo. 304 — 28 S. \Y. Rep. 874; Branch v. Foust, 130 Ind. 538 — 30 N. E. Rep. 631 ; Mining («.. v. Mason, 145 U. 8 349—12 Sup. C't. Rep. 887; Wrighl v. Dick, 116 Ind. 53S — 19 N. E. Rep. 306: Gordon v. O'Neil, 96 Mo. 350 — 9 S. W. Rep. 9:30; Holden v. Vaughn, 64 Mo. 588; Chamblee v. Tarbox, 27 Tex. 139 — 84 Am. Dec. 614; Graffam v. Burgess, 117 I . S. 180 — 6 Sup. Ct. Rep. 686; Connely v. Rue. 148 111. 207 — 35 N. E. Rep. 824; O'Bryan v. Davis. 102 Ala. 429 — 15 So. Rep. 860; Barling v. Peters, 134 111. 606 — 25 N. E. Rep. 765; Publishing Co. v. Bennett. 34 Fla. 302 — 16 So. Rep. 185; Loyd v. Loyd. 61 Iowa, 243 — 16 N. W. Rep. 117.) Inadequacy Coupled with Irregularities. § 357. Insidiously lurks the venom of inadequacy regarded by the courts with vigilant suspicion, and when environed with slight additional circumstances, such as mere irregulari- ties, fraud, mistaken or other circumstances calculated to pre- vent a realization of a reasonable value, it is sufficient to authorize the court to vacate the sale, for in all such cases the presumption will be conclusive that the price realized is in- ordinate and the sale voidable in consequence thereof. (Lurton v. Rodgers, 139 111. 551 — 29 N. E. Rep. 866; Ivvin v. Fergu- son. 83 Tex. 491 — 18 S. W. Rep. 820; Aldrich v. Lewis. 28 Neb. 502 — 44 X. W. Rep. 735; Bullen v. Dawson, 139 111. 633—29 N. E. Rep. 1038; Phillips v. Wilson, 164 Pa. St. 350— 30 Atl. Rep. 264; Saxton v. Seber- ling, 48 Ohio St. 554 — 29 N. E. Rep. 179; Garvin v. Hall, 83 Tex. 295 — 18 S. W. Rep. 731; Cascaden v. Cascaden, 140 Pa. St. 140 — 21 Atl. Rep. 259: Garrittee v. Paplain, 73 Md. 322 — 20 Atl. Rep. 1070; Kin- caid v. Tutt, 88 Ky. 392—11 S. W. Rep. 297; Hardware Co. v. Build- ing Co., 132 Mo. 442 — 34 S. W. Rep. 57; Flint v. Phipps, 20 Ore. 340 — 25 Pae. Rep. 725; Holdsworth v. Shannon, 113 Mo. 508 — 21 S. \V. Rep. 85; Lebner v. Loomis, S3 Iowa, 416 — 49 N. W. Rep. 1018; Hobson v. McCambridge, 130 111. 367 — 22 \. E. Rep. 823; Means v. Rosevear, 42 Kan. 377 — 22 Pae. Rep. 319; Gunter v. Cobb, 82 Tex. 59S— 17 S. W. Rep. 848.) 320 VOID JUDICIAL AND EXECUTION* SALES. And as a general rule if the inadequacy of price in a judi- cial sale is inordinately great, courts will seize upon circum- stances of fraud or unfairness of the slightest magnitude, and hold the same sufficient to set it aside. (Trustees v. Rausch, 122 Ind. 1G7 — 23 X. E. Eep. 717; Jones v. Pratt, 77 Tex. 210 — 13 S. W. Rep. 887; Schroeder v. Young. 161 U. S. 334 — 16 Sup. Ct. Eep. 512; Land Co. v. Walker, 7S Iowa, 476 — 43 N. W. Rep. 294.) SALES IX SOLIDO. Are Usually Considered Voidable Only. § 358. Manifestly, the officer of the law charged with the duty of making the sale of land under the process of law should offer the same in such parcels as will he most desirable to the bidders and induce them to raise their bids as high as possible thus realizing the highest possible amount for the debtor or heir whose property is thus disposed of under the forms of law. But according to the weight of authority a sale of land in a lump which should have been sold in separate parcels is not for this reason alone void, but is at best only voidable, the defect being an irregularity merely for which the proceed- ings are not exposed to successful collateral assault. (Hoffman v. Busehmann, 95 Mich. 538 — 55 N. W. Rep. 458; Lewis V. Whitten, 112 Mo. 318 — 20 S. W. Rep. 617: Vanmeter v. Assignee, 88 Ky. 448 — 11 S. W. Rep. 80; Delaplaine v. Lawrence. 3 Comst. 301; Craig v. Stevens, 15 Xeb. 362—18 X". W. Rep. 510: Gleason v. Hill. 05 Cal. 17 — 2 Pac. Rep. 413; Bunker v. Rand, 19 Wis. 253 — 87 Am. Dec. 684; Williams v. Allison, 33 Iowa, 378; Rector v. Hartt, 8 Mo. 448 — 41 Am. Dec. 650; Cunning-ham v. Cassidy, 17 XT. Y. 276; Griswold v. Stouphton, 2 Ore. 61 —84 Am. Dec. 409; Bouldin v. Ewart. 63 Mo. 330; Foley v. Kane, 53 Iowa, 64 — 14 X. W. Rep. 821: Bell v. Taylor. 14 Kan. 277; Smith v. Schultz, 68 X. Y. 41; Lumberman v. Bank, 24 Minn. 281; Vigoureux v. Murphy, 54 Cal. 346.) So it is held that to avoid a sale en masse some wrong or fraud must be established, for it must either have resulted in injury to the debtor by reason of diminished aggregate price, or the sale must be environed by some fraudulent circum- stance. Or that it is voidable because it interferes with the defendant's right of redemption. (( Ink v. Kraker, 41 Minn. 444 — 53 X. W. Rep. 706; Ross v. Meade, 5 Gilm. 171: Power v. Larabee, 3 N. Dak. 502 — 57 X. W. Rep. 789; McMullen v. Gable, 47 111. 67; Hicks v. Perry, 7 Mo. 346; Smith v. COMBINATIONS AND DEVICES TO PREVENT COMPETITION. 321 Huntoon. 134 111. 24 — 24 N. E. Eep. 971; Hudepohl v. Water Co., 94 C a ]_ 58S _29 Pac. Rep. 1025; Insurance Co. v. Brown, 81 Iowa, 42 — 46 N. W. Rep. 749; Ballard v. Scruggs, 90 Tenn. 585 — 18 S. W. Rep. 259. Also Considered to Make the Sale Void. § 059. It has been held in Michigan, Tennessee and Indiana that a sale of land en masse of parcels not contiguous is unqualifiedly void. That it is a nullity even if the sheriff idid first offer to sell in parcels. That an execution sale of lands is purely statutory and the provisions for a sale in par- cels have been held not to be a formal but a material matter, and its non-compliance works a fraud on the execution debtor which vitiates ihe sale altogether, as the debtor has an abso- lute right to redeem any one parcel separately to the exclusion of the rest, and that by a sale in solido he is deprived of this privilege. (Baldwin v. Cullen, 51 Mich. 33 — 16 N. W. Rep. 191; Udel v. Kahn. 31 Mich. 195: Lee v. Mason, 10 Mich. 403; Durm v. Fish, 46 Mich. 312 — 9 X. W. Rep. 429 ; Mays v. Wherry. 2 Baxt. 133 ; Cooke v. Walters, 2 Lea, 116; Piel v. Brayer, 30 Ind. 332 — 95 Am. Dec. 699; Voss v. Johnson. 41 Ind. 19; Doe v. Smith, 4 Blackf. 22S; Reed v. Diven, 7 Ind. 189; Banks v. Bales, 16 Ind. 423.) Though the present rule in these states seems to be some- what modified, and such sales are not entirely void. (Hoffman v. Buschmann, 95 Mich. 538 — 55 N. W. Rep. 458; Ballard v. Scruggs, 90 Tenn. 585 — 18 S. W. Rep. 259; Carpenter v. Russell, 129 Ind. 571 — 29 N. E. Rep. 36; Nelson v. Bronnenburg, SI Ind. 193; Jones v. Association, 77 Ind. 340.) COMBINATIONS AND DEVICES TO PREVENT COM- PETITION. Stifling Bidding is Fraudulent and Makes Sale Invalid. § 360. As it is the policy of the law to uphold judicial sales if possible, so it is the universal practice of the courts to require the utmost degree of fairness on the part of its functionaries in the conduct of sales under its orders and writs, as well as on the part of these who seek to become pur- chasers thereat. Therefore, any agreement, combination, ar- rangement or cabal, entered into by intending bidders, whose fraudulent machinations and manipulations have a tendency 21 322 VOID JUDICIAL AXD EXECUTION SALES. to and are calculated to stifle competition at execution and judicial sales, is contrary to public policy, a fraudulent im- position upon the court, and an infringement of private rights, fatal to the validity of the sale, which will be vacated upon a proper proceeding inaugurated for that purpose, either by motion or bill in equity. (Ingalls v. Rowell, 149 111. 163 — 36 N. E. Rep. 1016: Ateheson v. Mallon. 43 X. Y. 147 — 3 Am. Eep. 67S; Woodworth v. Bennett. 43 X'. Y. 27:; — 3 Am. Rep. 706: Jones v. Caswell. 3 Johns. Cas. 29 — 2 Am. Dee. 134: Stewart v. Severance. 4:; Mo. 322 — 97 Am. Dee. 392: Martin v. Blight. 4 J. J. Marsh. 491 — 20 Am. Dec. 226: Pattison v. Josselyn, 43 Miss. 373: Arnold v. McCord, 16 Ind. 177: Wooton v. Hinkle, 20 Mo. 290; Flemming v. Hutchison, 36 Iowa, 519; Mills v. Rogers, 2 Litt. 217 — 13 Am. Dec. 263.) No Title Will Pass to the Fraudulent Purchaser. § 361. If the bidder at an execution or judicial sale bribes or induces another bidder thereat by a promise to pay him a sum of money, or other valuable consideration, or agrees with him to divide the property with him if he refrain from further bidding, and by the employment of such mean- be- comes himself the successful bidder for a sum less than would otherwise have been realized but for such fraudulent acts of the purchaser, such sale is fraudulent and void. Xo title will be acquired thereby, or by the deed executed in consum- mation thereof, as against all parties whose rights have been thus infringed upon by such deliberative fraudulent machina- tions. The owners of the land may recover the same from the purchaser in a proper action instituted for that purpose, and need not, as a pro-requisite to the prosecution of such suit, refund the purchase money paid by the fraudulent ven- . even if it was used in the discharge of a mortgage or other liens or incumbranees upon the property, or in the sat- isfaction of the judgment lien upon which the sale is founded. oney expended by him upon the real property involved, or its title, need not be returned before commencing suit for re- covery of the same. The prevention of bidding at compulsory sales is consid- ered as being in derogation of good policy and as having a tendency to the encouragement of fraudulent and unfair deal- ing, enabling a bidder to gain thereby, but at the same time precluding a possibility of sustaining any loss. The doctrine SALES TO DISQUALIFIED PURCHASERS. that such a fraudulent purchaser is not entitled to have his m0 ney returned is not enforced in the nature of a pumsh- r n t,nor upon a desire to aid the defrauded party because f the imposition and in disregard of the principles of equity tat rather upon the rule of law that by his wrongful acts ■with which the sale is environed, the purchaser has placed himse lf in a position where the court is powerless to extend its aid ; n affording him relief. A fraudulent vendees moutn is dosed from asserting that equity is in his favor, and conse- (|U( , ntlv mugt be denied the protection of the court, for where positive fraud is shown to exist a court of chancery wil never reimburse the vendee nor afford him indemnity. Rights are never founded upon fraud, and hence, by reason of his fraud, the purchaser is hold to have forfeited all claims to the money he h« paid on his bid, or invested in the betterments of the estate, and has acquired no title to the land tbus bought (Phelps v. Benson. 16! Pa. St. 418-29 Atl. Rep 86; us is sound in principle and. consonant to reason, public policy and the analogies of the law. (Burke v. Daly, 14 Mo. App. 542.) But a purchase under execution by a justice of the peace who issued the writ, while there is manifest indelicacy and im- propriety in such a purchase, is not void, nor voidable, as it is held uot to be in contravention of law nor in derogation of the principles of public policy, as the justice has nothing to do with the sale in his official capacity. (Smith v. Perkins. SI Tex. 152-16 S. W. Rep. 805.) Purchase by Administrator After the Sale. 8 367 Even if the purchase by an administrator at his own sale be void, either by provision of statute, or on general principles, it is held that a bona fide purchase by him subse- quent to the sale from one who purchased m good faith is ™ ( lnl v. Kennedy, 107 Mich. 312-65 X. W. Rep. 219; Welch v. Mc- Grath, 59 Iowa. 519—10 N. W. Rep. 810.) 32S VOID JUDICIAL AND EXECUTION SALES. SECRET FRAUDS AXD INFIRMITIES INEFFECT- UAL ON TITLE OF PURCHASER. Fraud Vitiates the Sale. § 368. The law is intolerant toward every fraudulent or col- lusive device, scheme, combination or contrivance whereby undue or unconscionable advantage is sought to be obtained over others. Public policy discourages and condemns fraud of every nature, and forbids anyone to reap profit from his own iniquitous conduct. Nor will it permit one to participate in the apportionment of the fruits of fraud resulting from the fraudulent devices or contrivances perpetrated by others of which he is cognizant. Official or public sales may be invalidated by reason of a collusive scheme among the bidders concocted to obtain the property about to be offered at an under value, in which case the unrighteous enterprise is- the perpetration of a fraud upon the judgment debtor; or the collusion may exist between the officer or vendor and others to inordinately inflate the price, in which alternative the purchaser is the sufferer by the illegitimate contrivance and is entitled to complain of the wrong. Upon considerations of public policy courts entertain strong inclinations for upholding judicial sales, yet notwith- standing these considerations, sales consummated in bad faith, will not be sustained, equity compelling a relinquishment of the unconscionable advantage obtained by the purchaser by virtue of fraudulent devices or contrivances, if timely applica- tion is made therefor. (Goble v. O'Connor, 43 Neb. 49 — Gl N. W. Rep. 131; Ingalls v. Rowell, 149 111. 163 — 36 N. E. Rep. 1016; Devine v. Harkness, 117 III. 145 — 7 N. E. Rep. 52; In re Hayes" Estate, 159 Pa. St. 3S1 — 28 Atl. Rep. 158; Lloyd v. Malone, 23 111. 43; Barton v. Hunter, 101 Pa. St. 406; Wilson v. Kellogg, 77 111. 4~.) And a resort to equity is not necessary to obtain a relin- quishment of the title acquired by fraudulent devices and con- trivances while the same is yet held by the fraudulent vendee, for in such case the sale is considered as absolutely void and may be vacated upon motion and is subject to collateral im- peachment. (Phelps v. Benson, L61 Pa St. 418 — 29 Ail. Rep. 86; Gilbert v. Hoff- man, 2 Watts, 6G — 26 Am. Dec. 103; Bunts v. Cole, 7 Blackf, 265 — 41 SECRET FRAUDS AND [NFIKMITIES INEFFECTUAL 329 Am. Dec. 226; Bethel v. Sharp, 25 111. 17:? — 70 Am. Dec. 790; Gilbert v. Carter. 10 Inch 16 — 68 Am. Dec. 655; Turner v. Adams, 46 Mo. 95; Griffith v. Judge, 49 Mo. 5S6; Fausl v. Haas. 7:; Pa. St. 205.) A distinction is sometimes drawn between fraud of the plaintiff or purchaser alone without any conspiracy with the sheriff, and a case of collusion between the sheriff and pur- chaser, holding that in the former the sale is voidable only and subject to being set aside by proceedings in equity, while in the latter case the sale is void at law, and everyone inter- ested in the property sold may take advantage of the defect. (Burton V. Spires. 92 N. ('. 503; Hill v. Whitfield, 3 Jones, 120; Un- derwood v. McVeigh, 23 Gratt. 409.) Purchaser Free From Negligence and Fraud is Protected. § 369. It is an established principle of jurisprudence that a purchaser at an execution or judicial sale who is free from negligence, is protected in the title acquired by him at such sale, as against any secret frauds, devices, machinations or ir- regularities, with which he has no connection, or in which he has not participated, or of the existence of which he was not cognizant when he purchased. This protection extended by law is founded upon considerations of public policy demand- ing confidence in judicial proceedings to insure ready sales and avoid the possibilities of sacrifice at compulsory sales, when the proceedings are otherwise fair and regular. Manifestly, when the purchaser has discovered that the general jurisdiction is ample, and the proceedings necessary to invoke that jurisdiction in the particular proceeding are sufficient, and having discovered this he is not bound to look further than the writ, order of sale or decree. Such inno- cent third person can not he deprived of his rights by reason of secret vices or infirmities, or subsequently ascertained er ror- or irregularities, which may have happened either an- tecedent or subsequent to the execution or decree. (Hudepohl v. Water Co., 04 Cal. 588 — 29 Pac. Eep. 1025; Linman v. Riggins, 40 La. Ann. 761 — 5 So. Rep. 19; De Lancy v. Knapp, 111 Cal. 165 — 43 Pac. Rep. 598; Stotts v. Brookfield, 55 Ark. 307 — 18 S. \Y. Rep. J79: Riley v. Martinelli, 97 Cal. 575 — 32 Pac. Hep. 579; Garden v. Lane, 48 Ark. 216 — 2 S. W. Rep. 709; Massie v. Brady, -II La. Ann. 553 — 6 So. Rep. 536; Buckmaster v. Carlin, 3 Scam. 104; Reeve v. Ken- nedy, 4:; Cal. 643; Wisdom v. Buekner, 31 la. Ann. 52; Voorhis v. Bank, 10 Pet. 449; Duckworth v. Vaughn, 27 I. a. Ann. 599; Zeigler v. Shomo, 330 VOID JUDICIAL AND EXECUTION SALES. 73 Pa. St. 357 ; Winston v. Otley, 25 Miss. 451 ; Butterfield v. Walsh, 36 Iowa, 534; Thorpe v. Beavans, 73 N. C. 241; Wallace v. Loomis, 97 U. S. 146; Maina v. Elliott, 51 Cal. 8.) Hence, when the purchaser is a stranger to the judgment, he is charged with the duty of ascertaining that an authorized functionary is making the sale, and that he is empowered in this regard by a court of competent jurisdiction, and having no notice of any fraud or irregularity, his title is good. (Williams v. Johnson. 112 N. C. 424—17 S. E. Rep. 496; Shannon v. Newton, 132 Pa. St. 375 — 19 Atl. Pep. 138; James v. Mayer, 41 La. Ann. 1100 — 7 So. Rep. 618.) The title of a purchaser in good faith and for value at a judicial sale is invulnerable against, an assault wherein it is attempted to be shown that the order or decree of sale was procured by fraudulent machinations and misrepresentations of others, of which he is neither chargeable with notice, nor guilty of participation therein. (Swift v. Yanaway, 153 111. 197 — 38 N. E. Pep. 589 ; Wadham v. Gay, 73 111. 415; Myer v. McDougal, 47 111. 278; Sibert v. Thorp. 77 111. 43; McCowan v. Foster. 33 Tex. 241.) Nor can the rights of innocent purchasers at sales by ad- ministrators and guardians be impaired by the production of proof of errors, fraud or mistakes on the part of the fiduciary subsequent to the order or license, in conducting the sale thereunder, in the absence of complicity on the part of the purchaser. (Staples v. Staples, 24 Gratt. 225: Jones v. Clark. 25 Gratt. 642; Blood v. Hainan. 13 Met. 231; Gwinn v. Williams, 30 Ind. 374; Patterson v. Lemon, 50 Ga. 231.) Judgment Creditor not an Innocent Purchaser. § 370. The rule that a purchaser at an execution sale will take a good title if the court had properly acquired jurisdic- tion and had empowered the proper officer to make the sale has no application where the plaintiff in the judgment and execution is the purchaser, as the law presumes that he is cognizant of all defect- and imperfections in the record, and he will not be protected as a bona fide purchaser. (Collins v. Smith, 57 Wis. 2S4 — 15 N. W. Rep. 192; Smith v. Huntoon, 134 111. 24 — 24 N. E. Rep. 971; Corwith v. Bank. 15 Wis. 289 ; Morris v. Roby, 73 111. G42 ; Twogood v. Franklin, 27 Ga. 239; King v. Cush- SECRET FRAUDS AND INFIRMITIES IXEFFF. CTUAL- 331 man. 41 Dl. 31 ; IM.1 v. Brayer, 30 Ind. 332; Stephens v.Dennison, 1 Ore. 19; Stewart v. ( roes, 5 Gilm. 4-12.) And as a genera] rule a purchaser at a judicial sale is con- clusively presumed to have notice of all facte disclosed by the record of the proceedings touching the rights of others m the particular property thus sold. (Williamson v. Jones, 43 W. Va. 562-27 S. E. Rep. 411; Stent v. Mercantile Co., 41 \Y. Va. 339-23 S. K. Rep. 571; Wood v. Ktebbs, 30 Gratt. 708. And if the judgment creditor buys the lands of the de- fendant in execution, and thereafter conveys the property to the attorney who instituted the suit, the latter gets no better title than the former would have obtained, as he is chargeable with notice equally with the judgment creditor. (Culver v. Phelps, 130 111. 217-22 N. E. Rep. 809.) Property Charged with Liens and Trusts. § 371 If the purchaser of land sold under execution is pos- sessed with knowledge of the fact that the property is charged with a resulting trust in favor of some third person, he takes the premises subject thereto, upon the principle that a sher- iff's vendee with notice buys just what the judgment creditor can sell under the execution, which is the actual interest of the defendant. . (Miller v. Baker. 166 Pa. St. 414-31 Atl. Rep. 121; Lewis v. Taylor, 96 Ky. 566 — 29 S. W. Rep. 444.) But on the other hand, where the execution purchaser com- plies with the terms of his bid by paying the amount thereof without notice that the property was incumbered with an un- recorded vendor's lien, notwithstanding he receives notice ot such lien prior to receiving his deed, he takes the property un- affected by the lien, of the existence of which he had neither actual nor constructive notice when he bought the land. (Maroney v. Boyle, 141 N. Y. 462-36 N. E. Rep. 511.) Innocent Purchaser from Fraudulent Vendee. 8 372 Should the original purchaser at an execution or judicial sale be guilty of entering into collusion, or fraudulent schemes or devices regarding the preperty involved, or m he absence of such complicity should he be cognizant ; of the fraudulent devices and machinations practiced by others, he 332 VOID JUDICIAL AND EXECUTION SALES. may yet, notwithstanding his participation in or knowledge of such fraud, transmit a valid and unimpeachable title to one who purchases from him for value and in good faith, having no notice of the fraud or infirmity. The sale originally was voidable and capable of being avoided at the instance of inter- ested parties, and the transfer of the voidable title to an inno- cent purchaser for a valuable consideration and without no- tice, passes the title free from such infirmity in his hands. (Staples v. Staples. 23 Gratt. 225; Kilgore v. Beck. 40 Ga. 293; Snow v. Hawpe, 22 Tex. 168; Blood v. Haman, 13 Met. 231; Robbins v. Bates, 4 Cush. 104; Gwinn v. Williams, 30 Ind. 374.) Therefore, where the guardian was authorized to sell the ward's lands, was himself indirectly, but really, the purchaser at his sale, the proceedings are voidable, though ostensibly made to a stranger, the land passing to the nominal purchaser subject to being divested for fraud. But the right to avoid it is restricted to the nominal purchaser, and those holding under him with notice of the circumstances which environ the proceedings, or a purchaser from the original vendee hav- ing not paid an adequate consideration. A bona fide pur- chaser from the original vendee before the sale is vacated re- ceiver an unimpeachable title. (Wyman v. Hooper. 2 Gray, 141; Robbins v. Bates, 4 Cush. 104; Walker v. Walker, 101 Mass. 169; Pomes v. Brewer, 2 Pick. 184.) So a purchaser for value and without notice from a claim- ant who purchased from an administrator under an order of sale based upon fictitious claim- allowed by the fraud and collusion of the fiduciary and purchasing claimant, will be protected in his purchase, notwithstanding the fraud of his grantor. (Martin v. Robinson, 67 Tex. 368 — 3 S. W. Rep. 550; George v. Wat- son. 19 Tex. 369; Dancy v. Strickling. 15 Tex. 564.) An innocent purchaser for value from a fraudulent vendee at a sale under execution issued upon a judgment obtained through collusion or connivance, will not be affected by the fraud and will take a good title, though the sale was void as to the fraudulent vendee at the execution sale. (Price v. Junkin. 4 Watts, 85 — 28 Am. Dec. 685; Fetterman v. Murphy. 4 Watts. 424 — :2s Am. Dec. 729.) SECRET FRAUDS AND INFIRMITIES INEFFECTUAL. 333 That the writ of execution issued without the authority of the judgment creditor, (Sowles V. Harvey, 20 Ind. 217-83 Am. Deo. 315.) or the -ale took place in violation of an agreement to adjourn to some definite time, are all unavailing to impeach the title resulting under an execution sale in the absence of .he pur- chaser's knowledge of such fraud or irregularity. (Williams v. Doran, 23 X. J. Eq. 385.) Judgment in Fact Satisfied but Record Silent. 8 373 In Pennsylvania it is held that while a vendee at a sheriff's sale gets no title if the sale is founded upon a satis- fied judgment, the record of which do,- not -how satisfac- tion but that the same was satisfied was known to the pur- chaser, vet his vendee who, having purchased for value and without notice, acquires a good title. (Hoffman v. Strohecker, 7 Watts. 86-32 Am. Dee. 740: Meigs y Bunting. 141 Pa. St. 233-21 Atl. Rep. 5SS; Saunders v. Gould. 134 Pa. St. 445 — 19 Atl. Rep. 694.) But by the weight of authority founded upon principle, reason and expedient, no one can acquire title under a sale founded upon a satisfied judgment, as the rule of bona fide purchaser and its consequent protection has no application to a purchaser under a sale upon a satisfied judgment. Benton v. Hatch, 122 N. Y. 322-25 N. E. Rep. 486; Soukup V. Investment Co., 84 Iowa, 448-51 N. W. Rep. 167; Terry v. O Neal 71 Tex 59 o_ 9 S W. Rep. 673; Miller V. Morrison. 43 Kan. 446 — ^ Pac. Rep. 612; Clute v. Emerick, 99 N. Y. 342-2 N. E. Rep. 6; Rey- nolds v. Lincoln, 71 Cal. 183-9 Pac. Rep. 176; Huber v J*Mer ,94 Mo . 332 — 7 S. W. Rep. 427; Billiard v. MeArdle, 98 Cal. 35o - 33 lac. Rep. 193.) Misappropriation of Purchase Money. § 374. The purchaser at a sale by an administrator, ex- ecutor or guardian, or by a sheriff under execution, is not bound to see to the application of the proceeds arising from the sale. He is under no obligations to see that funds are not misappropriated by the officer, for he may presume that the monev is properly applied, and that the officer or fiduciary performs his duty in this regard. The application or invest- ment of the proceeds of an execution or judicial sale is a mat- ter wholly foreign to the purchaser, and however unwise or 334 TOID JUDICIAL AXD EXECUTION SALES. illegal the disposition of the funds may be, it can not affect his title. (Kendrick v. Wheeler, 85 Tex. 247 — 20 S. W. Rep. 44; Farrington v. Duval. 32 S. C. 590 — 10 S. E. Rep. 944; Bank v. Carpenter, 7 Ohio, 21 — 2S Am. Dec. 616; Mulford v. Stalzenbeek, 46 111. 303; Knotts v. Stearns, 91 U. S. 638; Mulford v. Beveridge, 78 111. 456: Long v. O'Fal- lon, 19 How. 116; Cochran v. Van Surlay, 20 Wend. 365; Allman v. Taylor. 101 111. 185; Giles v. Pratt, 1 Hill. 239 — 26 Am. Dec. 170; Barnes v. Light Co., 27 N. J. Eq. 33; Cooper v. Horner, 62 Tex. 356.) Purchase Money not Fully Paid. § 375. Because the purchaser did not pay the amount of his bid until some time after the sale can not operate to the prejudice of the interest or title of an innocent purchaser hav- ing bought in good faith, and who is governed by the offi- cer's deed executed in consummation of the sale. If there was no stipulation for credit the sheriff's deed is not void be- cause the money was not paid until some time afterward. (Maina v. Elliott. 51 Cal. 8; Longfellow v. Quimby, 29 Me. 196; An- derson v. Rider, 46 Cal. 134.) In Alabama under a statute providing that the adminis- trator's deed shall be made only after the payment of the whole of the purchase price it is held that the purchaser or his assignee has no right to a deed until after such payment, and that notwithstanding the officer makes a false report that the payment had been made, and a full and complete com- pliance by the purchaser with the terms of sale, and a con- firmation of the sale was thereupon had and conveyance exe- cuted, the proceedings are insufficient to divest the title of the heirs, and the sale and deed are void. (Gardner v. Kelso<, 80 Ala. 497 — 2 So. Rep. 680: Corbitt v. Clenny, 52 Ala. 480; Wallace v. Nichols, 56 Ala. 321; Cruikshank v. Luttrell, 67 Ala. 318.) But this ruling can only be justified by the statute, as the confirmation of the court and the execution and delivery of the deed complete the sale, and the accountability of the officer for the proceeds is a matter between the fiduciary and the heirs. The fraud and connivance between the adminis- trator and his immediate vendee, upon principle and author- ity, can not affect a subsequent bona fide purchaser for value from the original vendee. (King v. Cabaniss, 81 Ga. 661 — 7 S. E. Rep. 620.) SECRET FEAUDS AND INFIEMITIES [NEFFECTTJAL. 335 Omission of Return or Defective Return. § 376. The failure of the sheriff to make a proper return, or an entire omission of a return to an execution, is deemed but a mere irregularity according to the great weight of au- thority, and therefore, upon principle, the title of the pur- chaser is not dependenl upon such return, and its imperfec- tions or omission will not avoid the -ale. (Hibbard v. Smith, 67 Cal. 547- 1 Pac. Rep. 473; King v. Duke. 31 S. W. Rep. 335; .Mills v. Lombard, 32 Minn. 259- 20 X. W. Rep. 187; Bitter v. Scannel, 11 Cal. 238- 70 Am. Dec. 775; Doe v. Rue, 4 Blackf. 263 — 29 Am. Dee. 368; Leshey v. Gardner, 3 W. & s. 314 — 38 Am. Dec. 764; Hinds v. Scott. 11 Pa. St. 19 — 51 Am. Dec. 506; Hunt v. Louks. 38 Cal. 372 — 99 Am. Dec. 404; Holman v. Gill, 107 111. 467; Cadwdl v. Blake, 69 Me. 458; Bray v. Marshall, 75 Mo. 327.) Though in some states, particularly where the doctrine of extent obtains, a return is essential to the validity of the pur- chaser's title, and constitutes an indispensable muniment in the chain of title, and must be complete and in strict compli- ance with the requirements of the statute, or else the title fails because the extent fails, which creates the lien. (Wilcox v. Emerson, in R. 1. 270 — 14 Am. Rep. 683; Sleeper v. Semi- nary. 19 Vt. 451; Preseott v. Pettee, 3 Pick. 331; Bates v. Willard, 10 Met. 62; Bissell v. Mooney, 33 Conn. 411; Walsh v. Anderson, 135 Mass. G5.) Purchase Money Must be Paid to Proper Officer. § 377. While it is a matter of no concern to the purchaser what disposition is made of the purchase money arising from a judicial or execution sale, yet it is incumbent upon him to sec to it that he pays the money to the proper person author- ized to receive it. (Wood v. Ellis, 85 Va. 471—7 S. E. Rep. 852.) Accordingly, where, a bond is required of a commissioner appointed to make a sale before receiving the money realized therefrom, if the purchaser pays money to such commissioner without such bond having boon given, he does so at his own personal risk, even though the commissioner was the attorney of the judgment creditor. (Shumate v. Williams, 94 Va. 250 — 22 S. E. Rep. 808.) 336 VOID JUDICIAL AND EXECUTION SALES. Pre-existing Equities and Unrecorded Deeds. § 378. Execution purchasers like subsequent innocent pur- chasers are protected against unrecorded deeds and incum- brances of which they had neither actual nor constructive notice; (Lusk v. Keel, 36 Fla. 418—18 So. Rep. 582; Emerson v. Ross, 17 Fla. 122.) and when the judgment creditor has neither actual nor con- structive notice of an unrecorded deed executed by the judg- ment debtor prior to the rendition of the judgment, it is wholly immaterial whether the purchaser at a sale under exe- cution emanating from such judgment, is or is not cognizant of such prior unrecorded deed, as he takes the property unaf- fected thereby. (Doyle v. Wade, 23 Fla. 90—1 So. Rep. 516.) So it is held in Alabama under the doctrine of caveat cm pi or that the title of the grantee in a sheriff's or adminis- trator's deed is subject to all pre-existing equities in favor of third persons against the execution defendant or decedent. (Lindsay v. Cooper, 94 Ala. 170 — 11 So. Rep. 325; Goodbar v. Daniels, 88 Ala. 583 — 7 So. Rep. 254; demons v. Ccx, 114 Ala. 350 — 21 So. Rep. 426; Thomas v. Glazener, 90 Ala. 538 — 8 So. Rep. 153; Lovelace v. Webb, 62 Ala. 271.) Chapter V. Confirmation and Deeds. ANALYSIS. Section 379. Meaning of Confirmation - Is the Judicial Sanction of the Sale. 380 ~ What Matters are Cured bv Confirmation and What Not. 381. Confirmation Essential to Title — Sale is Not Complete until Confirmation. 382 - After Confirmation Purchaser is the- Owner. 383. Confirmation Discretionary — Is in Sound Legal Discretion of Court. 384. Abuse of Discretion Corrected on Appeal. 385. General Effect of Confirmation — The General Scops of the Order. 386 - Effect where Jurisdiction had Attached. 387. In Sales under Execution. 388. Court Adopts Proceedings of Officer. 389. Notice of the Application for Order of Confirmation — Where Statute Requires Notice to be Given. 39 °- Effect of Confirmation Entered Without Notice. 391. How Confirmation Shown — Generally Required to be Shown Affirmatively. 392. When Confirmation Presumed. 393 - Confirmation by Estoppel. 394 - May be Annulled but Not Collaterally. 395. What Irregularities are Cured by Confirmation — Ap- praisement or Inquisition Wanting. 396 - ' Defects in Notice or Want of Notice. 397 - Sale at Wrong Time or Place or Person. 398. Departures from Order or Decree. 399. Defective Bond or Omission to Give Bond. 40 °- Other Irregularities Cured. 4()1 - Sales without Notice or Order. 402. Defects Considered Incurable by Confirmation 403. Deed Essential to the Transfer of Legal Title — In Ju- dicial and Probate Sales. 404. In Execution Sales. 4 °5- In Several States Deed not Essential 22 338 VOID JUDICIAL AND EXECUTION SALES. Section 406. When, by Whom, and to Whom. Deed to be Made — By Whom Deed Executed in Execution Sales. 407. By Whom Deed Made in Chancery and Probate Sales. 408. To Whoni Deed to be Made. 409. When Deed Made where Right of Redemption Exists. 410. When Deed Executed where no Right to Redeem Exists. 411. Statute Requiring Deed Made within a Certain Time. 412. If Required Confirmation Must be First Had. 413. -Execution of Deed Compelled if Officer Refuses to Make It. 414. When Deed Void because Deficient in Form and Substance — General Rule as to Sufficiency of Deed. 415. Recitals Sufficient in Deed under Execution. 416. Instances of Omission or Insufficient Recitals. 417. Deeds in Probate Proceedings. 41S. Recitals as Evidence by Statute. 419. ■ Sufficiency of Description Essential. 420. Omission or Defective Acknowledgment. 421. Title Obtained by Purchaser at Execution and Judicial Sale — In Judicial Sale. 422. What Title Obtained by Deed under Execution Sale. 423. Effect of Deed by Relation — Relates Back to Inception of the Lien. 424. r Sale under Several Executions when One or More Void. MEANING OF CONFIRMATION. Is the Judicial Sanction of the Sale. § 379. Confirmation of a judicial sale is the judicial sanc- tion or approval thereof by the court. The sale is incom- plete until confirmation is had, and when made, it relates hack to the time of sale, and cures all defects and irregularities that may have happened in the proceeding's of sale, except such radical defect- as are jurisdictional, or fraudulent practices, mistakes, surprise or the like for which equity would furnish relief if the -ale had been made by the parties in interest in- stead of by the court, which arc generally not susceptible of being cured by the order of confirmation. 1 1' the court was without jurisdiction in the rendition of the judgment in the first instance, such judgment i- obviously an unqualified nullity, and every other order made thereafter must manifestly be of no greater efficacy than the judgment MEANING OF CONFIRMATION. 339 itself; consequently jurisdictional matters arc not cured by the order of confirmation. But the decree or order of continua- tion of a judicial sale is final and conclusive upon all such mat- ters as the court is required to pass upon, and determines the rights of the parties, and is of the same force an.] effect as any other final adjudication by a court of competent jurisdiction. (Allison v. Allison, 88 Va. 328— L3 S. E. Rep. 549; Kincaid v. Tutt. ESS Ky. 392 -- 11 S. W. Rep. 297; Hank v. Ned. 53 Ark. 110 — 13 S. W. Rep. 700; Thomas v. Davidson, 76 Va. 338; Keohler v. Ball, 2 Kan. 160 — 83 Am. Dec 451; Williamson v. Berry, 8 How. 546; (Jockey v. Cole, 28 Md. 276 — 92 Am. Dec. 684; Watson v. Tromble, 33 Neb. 450 — 50 X. W. Rep. 331; Cole v. Shaw. 33 W. Va. 299 — 10 S. E. Rep. 637; Taylor v. Cooper, 1 Leigh. 317 — 34 Am. Dec. 737.) But in a recent case in Tennessee it was held that the con- tinuation of a judicial sale has no retroactive effect, so as to relate to the date of sale and give the purchaser the inter- mediate rents of the property sold. (Pearson v. Gillenwaters, 99 Tenn. 446 — 42 S. W. Rep. 9.) What Matters are Cured by Confirmation and What Not. § 380. Should the property be sold under a decree which is void because the court was without jurisdiction of the sub- ject-matter, such a sale would be wholly void, and hence there is no subject-niattei' upon which the order of confirmation could act, and it would not give the least validity to the pro- ceedings. If there was no jurisdiction to order the sale, there can be none to confirm it, and if confirmed the proceed- ing is inoperative. (Rea v. McEachron, 13 Wend. 465 — 28 Am. Dec. 471; Townsend v. Tallant, 33 Cat. 54 — 91 Am. Dec. 617; Pike v. Wassal, 94 U. S. 74; Gaines v. New Orleans, 6 Wall. 642; Montgomery v. Samory, 99 U. S. 182; Hawkins v. Hawkins, 28 hid. 70; Thomas v. Davidson, 76 Va. 338; Shriver v. Lynn, 2 How. 4:; : Minnesota Co. v. St. Paul Co., 2 Wall. 609; Lamaster v. Keeler, 123 U. S. 370 — 8 Sup. Ct. Rep. 197.) The confirmation can add nothing to the authority of the officer making the sale, for if the sale was without authority the ratification of it will be considered as inadvertently made by the court. (Willis v. Chandler, 2 Fed. Rep. 273; Willamett Keal Estate Co. v. Hendrix, 28 Ore. 485 — 42 Pac. Rep. 514; Smith v. Long, 12 Abb. N. C. 113.) 3-10 VOID JUDICIAL AND EXECUTION SALES. All matters which might have been called up for adjudica- tion had the parties interested brought them to the attention of the court by way of objections to the confirmation, will be conclusively determined by the order, even though no refer- ence was had to them, and even though they were not con- sidered directly; and this whether the parties were or were not cognizant of the existence of any such defects. (Speck v. Pullman, 121 111. 33 — 12 N. E. Rep. 213: Willis v. Nichol- son, 24 La. Ann. 545; Clark v. Costello, 36 Atl. Rep. 271; McRea v. Danner, S Ore. 63; Dawson v. Litsey, 10 Bush, 408; Wilcox v. Raben, 24 Neb. 368 — 38 N. W. Rep. 844; Hotchkiss v. Cutting. 14 Minn. 537; Brown v. Gilmore, 8 Aid. 322; Thorn v. Ingraham, 25 Ark. 58; Conover v. Musgrove, 68 111. 58.) COKFIKMATION ESSENTIAL TO TITLE. Sale is not Complete until Confirmation. § 881. Judicial sales, as well as execution sales in those states where confirmation is a requirement of statute, are not valid or binding, and confer no rights to the particular prop- erty purchased, unless the sale is confirmed by the tribunal under whose judgment, order or decree the sale was made. By the order of confirmation the sale, ostensibly made by the master, commissioner, sheriff or other functionary of the court appointed or commissioned to make it, is judicially made the act of the court itself, and hence is a judicial sale, or sale by the court. Therefore, the sale and deed of the officer making it, notwithstanding these may in every respect be legal and in pursuance of law, pass no title to the purchaser without the previous order of confirmation by the court. It is one of the essential steps in the proceedings of sale — an integral part of the proceedings under the process or judgment, in order to perfect the sale — and until the order is made the sale is not completed to the extent of entitling the purchaser to a con- veyance, or vesting in him any right or title to the land. (Maynard v. Cocke. 71 Miss. 4C3 — 18 So. R«p. 374: Lumpkins v. Johnson, 61 Ark. 80 — 32 S. W. Rep. 65; Chase v. Van Metro. 140 End. 321 — 39 N. E. Rep. 455; Stotts v. Brookfiekl, 55 Ark. 307 — 18 8. \V. Rep. 179; Apel v. Kelsey. 47 Ark. 413 — 2 S. W. Rep. 102; McBain v. McBain. 1" Ohio St. 337; Curtis v. Norton. 1 Ohio, 137; Taylor v. Cooper. 10 Leigh. 317 — 34 Am. Dec. 737; Reed v. Rodigan. 42 Ohio St. 292; .Myers v. Lindsay, 5 Lea, 331, Bassett v. Daniels, 10 Ohio St. 617; CONFIRMATION ESSENTIAL TO TITLE. 341 Beese v. Copeland, 6 Lea, 190; Click v. Buiri>. (» Ileisk. 539; Greer v. Anderson, 62 Ark. 213 — :;.". S. \V. Rep. 215.) After Confirmation Purchaser is the Owner. § 382. In the interim after purchase and before confirma- tion the purchaser is not liable for any loss or injury that may happen to the estate, and for proper grounds shown, may law- fully refuse to comply with the terms of his purcha.e; (Houston v. Ayeock, 5 Sneed, 406 — 73 Am. Dec. 131; Pearson v. Johnson. 2 Sneed, 580.) so that if the property increases in value after it i^ hid in and before confirmation a re-sale may be ordered unless the purchaser makes compensation, or in the event of a deprecia- tion in value a deduction will be allowed; (Click v. Burris, 6 Ileisk. 539.) but after confirmation the purchaser is the owner and is then liable himself to any loss or injury that the estate purchased may sustain, and he can not thereafter evade compliance with the terms of his contract. (Brewer v. Herbert, 30 Md. 301 — 96 Am. Dec. 5S2 : Houston v. Ay- cock. 5 Sneed, 406 — 73 Am. Dec. 131; Wagner v. Cohen, 6 (Jill, 97 — 46 Am. Dec. 660.) If the court had no jurisdiction of the parties of the subject- matter, and hence no authority to order the sale, the pur- chaser is not bound by the order of confirmation, and he can successfully resist the enforcement of the terms of his pur- chase, because the confirming order did not cure the jurisdic- tional infirmity. (Boggs v. Hargrave, 16 Cal. 559 — 76 Am. Dec. 561; Stoney v. Schultz, 1 Hill Ch. 465 — 27 Am. Dec. 420: Thrift v. Fritz, 7 111. App. 55; Matthews v. Eddy, 4 Ore. 255; Dawley v. Brown. 65 Barb. 107; Darvin v. Halfleld, t Sandf. 468; Boykin v. Cook, 61 Ala. 472; Burns v. Led- better, 56 Tex. 282; Short v. Porter, 44 Miss. 533; Henry v. Keys, :, Sucnl, 488; Bartee v. Tompkins, 4 Sneed, 623.) Confirmation is therefore a necessity in a judicial sale, and when made relates back '<> the 7 Am. Dee. 162; Nolan* v. Barrett, L22 Mo. 181 — 26 S. W. Rep. 692; Linenwebber v. Brown, 24 Ore. 548 — 34 Par. Pep. 475: Taylor v. Coats, 32 Neb. 30 — 48 N~. W. Rep. 964; Temples v. Cain, 60 Miss. 47s ; Fleming v. Johnson, 26 Ark. 421; Hanks v. Neal, 44 Miss. 212.) Confirmation of a guardian's sale is merely an adjudication that the proceedings are regular, the sale fairly conducted and the selling price an adequate one, but if the sale was void on account of there being no judgment authorizing it, or because for any reason the officer or person making itjhad no author- ity to make it, confirmation is wholly futile and can not validate the sale. (Burrell v. Railway Co., 43 Minn. 363 — 45 N. W. Rep. 849; Dawson V. Helmes, 30 Minn. 107 — 14 N. W. Rep. 462.) So where proceedings in administration for the sale of lands of a decedent to pay debts are regarded as in rem, the only question of jurisdiction is that over the subject-matter, with- out regard to the heirs, the purchaser under such sale claims title not through the heirs but by one paramount, and it passes to him by operation of law. Hence, if the court had juris- diction of the land the order of confirmation will cure all irregularities happening during the proceedings of sale. (McPherson v. Cunliff, 11 S. & R. 422 — 14 Am. Dec. 642; livers v. Watson, 156 I T . S. 527 — 15 Sup. Ct. Rep. 430; Potts v. Wright, 86 Pa. St. 498; Grignon v. Astor, 2 How. 319.) And when a judicial sale lias once been regularly confirmed by the court, it will not be sei aside except for fraud, mistake, surprise, or other equitable cause. (Insurance Co. v. Cot l nil. 85 Va. 857 — 9 S. E. Rep. 132; Kara v. Iron Co., 86 Va. 754—11 S. E. Rep. 431.) In Sales under Execution. § S87. In those states where confirmation of ordinary exe- cution =ale- is :1 requirement of statute, the sale necessarily must partake of the nature of a judicial sale, and the title of the purchaser depend- upon the confirmation of the sale by 346 VOID JUDICIAL AXD EXECUTIOX SALES. the court under whose process it was made, and until this is done the rights of the execution defendant are not divested. After the order of confirmation has been made and entered it is a conclusive adjudication and determination of the regu- larity of all proceedings concerning the sale after the issuance of the writ and before confirmation, but nothing more. It is merely an adjudication that the acts of the officer as they ap- pear of record were regular, and a direction in contemplation of law, that at the proper time he shall complete the sale by executing a deed. Should, however, the execution be fatally defective, or wholly unauthorized, or should it be void by con- troverting the title made under it, or the levy thereunder be made upon property owned by a third person, such wrongs not being apparent in the proceedings of the officer, are not cured by, nor are they properly passed upon by the confirma- tion, being independent of and in no way affected thereby. (Bank v. Huntoon, 35 Kan. 577 — 11 Pac. Rep. 369; Cross v. Knox. 32 Kan. 725 — 5 Pac. Pep. 32 ; Dickens v. Crane. 33 Kan. 344 — 6 Pac. Rep. 630; Koehler v. Ball, 2 Kan. 160 — 83 Am. Dec. 451; Neligh v. Keene, 16 Neb. 407 — 20 N. W. Rep. 277; Linenwebber v. Brown. 24 Ore. 553 — 34 Pac. Rep. 475 ; McRea v. Daviner. 8 Ore. 63 ; Deputron v. Young. 134 U. S. 241 — 10 Sup. Ct. Rep. 539; Bank v. Green, 10 Neb. 130 — 4 N. W. Rep. 942; Yeazel v. White, 40 Neb. 432 — 58 N. W. Rep. 1020.) The purchaser at an execution sale, where these are by statute required to be reported to the court for approval, nev- ertheless acquires the equitable title upon the payment of the purchase price, if the proceedings are regular up to the time of sale, notwithstanding the sale be not confirmed, as it is held that it is not the confirmation but rather the payment of the purchase money according to the terms of sale that gives the equitable title to the property. (Morrow v. Moran, 5 Wash. 692 — 32 Pac. Rep. 770.) Court Adopts Proceedings of Officer. § .388. By the confirmation of an execution sale nothing is reached beyond the writ, and no evidence can be received other than such as relates to the sheriff's proceedings as shown by his return, all things after judgment, including confirma- tion, being regulated by statute (Ham v. Peterson, 40 Kan. 245 — 19 Pac. Rep. 716; Bank v. Huntoon, 35 Kan. 577 — 11 Pac. Rep. 369; Mortgage Co. v. Smith, 25 Kan. 622; NOTICE OF APPLICATION FOR ORDER OF CONFIRMATION. 347 Koebler v. Ball, 2 Kan. L60 — 83 Am. Dec. 451; Challia v. Wise, 2 Kan. 193; Moore v. Pye, 10 Kan. 246.) Unlike in execution sales, in judicial sales the court has a wide discretion and ample power to rectify various errors and irregularities in the proceedings by the confirming order. If the master or other functionary has evaded the strict terms embodied in the order or decree of sale and sold upon different terms, it is optional with the court to ratify or reject the sale for that reason. The court has power to approve the sale despite the officer's evasion if the terms extended by the functionary were such as the court originally might have in- corporated in the order, and after confirmation, in contempla- tion of law such conditions are of similar effect as if imposed in the first instance. The sale being by the court, the acts of the officer, after the confirmation, are considered its own. (Noland v. Barrett. 122 Mo. 181-26 S. W. Rep. 692; Richardson v. Butler 82 Cal. 174 — 23 Pac. Pep. 9; Falls v. Wright. 55 Ark. 562 — 18 S W Hep 1044: Emery v. Vroraan, 19 Wis. 689 — 88 Am. Dec. 726; Shnmard v. Phillips. 53 Ark. 37-13 S. W. Rep. 510; Alexander v. Hardin 54 Ark. 480 — 16 S. W. Pep. 264: Jacobs' Appeal. 2?, Pa. St. 477: Lancaster v. Wilson. 27 Gratt. 624; Tutt V. Boyer, 51 Mo. 425.) NOTICE OF THE APPLICATION FOR ORDER OF CONFIRMATION. Where Statute Requires Notice to be Given. § 389. Chancery and probate sale- are required to he re- ported hack to the tribunal from which the decree or order of sale emanated, and are required to receive the approval thereof before the sale is consummated in a legal sense. In all but a few of the states general execution sales are not re- quired to be confirmed by the court — hut in the rest con- firmation is a requirement of statute, and the sale is no more complete without confirmation than are sales in probate or chancery. The order of confirmation being a decree final in its nature and an adjudication upon important rights, in sev- eral states the return of sale must be verified and can not be brought on for hearing except upon due notice to the adverse party, in the manner prescribed by the statute. It would seem that on principle and reason it is essential to pursue these formalities in order to confer validity upon the order of con- 348 VOID JUDICIAL AXD EXECUTION SALES. firmation, so as to preclude subsequent collateral inquiry into the proceedings of sale ostensibly passed upon by the con- firmation. (Dngger v. Tayloe, 60 Ala. 504; Perkins v. Gridley, 50 Cal. 97; Speck V. Wholein, 22 Mo. 310.) But if the sale is prematurely confirmed it is held imper- vious upon attack in a collateral action of ejectment upon the hypothesis that the adjudication of a court of general juris- diction having acquired jurisdiction of the cause is unim- peachable upon collateral inquiry. (Henry v. McKerlie, 78 Mo. 416; Bobb v. Barnum, 59 Mo. 394; Castle- man v. Relfe, 50 Mo. 583.) Effect of Confirmation Entered without Notice. § 390. Confirmation entered without notice manifestly lacks the essential element of conclusiveness of the questions necessarily adjudicated thereby because of the absence of the principle in all adjudications to which the quality of conclu- siveness is attributed, due notice to him whose rights ar^ passed upon. Such a confirmation is not conclusive evidence tli at the land ordered to be sold by the decree, or levied upon under execution, was regularly and legally sold, so as to bind all parties that may possibly be affected thereby. (Rice v. Poynter, 15 Kan. 263; Benz v. Hinos, 3 Kan. 390.) HO \V COOTIKMATTON SHO uX. Generally Required to be Shown Affirmatively. § 391. It is a fundamental proposition that a judicial sale passes no title to the purchaser until the sale is sanctioned bv the court by the confirming order, and it is therefore held that confirmation is a matter that must be affirmatively shown, and will not, as a general rule, be presumed. The burden of show- ing confirmation is consequently on him who asserts title under a judicial sale, and the rule that applies where juris- diction appears that all things will be presumed to have been rightly dime, unless the contrary appears, is not applicable to confirmations, for the import of that rule is that when a sub- stantial judgment or decree is shown to have been entered it will be presumed that all the preliminary -reps necessary have been taken to make such judgmenl or decree, after the ac- HOW CONFIRMATION SHOWN'. )149 quisition of jurisdiction, but this presumption will not be invoked in this regard, for confirmation is itself a final judg- ment and hence must be shown to have been made. (Apel v. Kelsey, 47 Ark. 413 — 2 S. W. Rep. 102; Swenson v. Seale, 28 S. W. Rep. 143: Reid v. Hart. -45 Ark. 41.) But as against a collateral assault it may be shown suffi- ciently by the minutes of the judge, it being sufficient if the approval can be gathered from the whole record. (Camden v. Plain. 91 Mo. 117 — 4 S. W. Rep. 86; State v. Jones, 89 Mo. 470 — 1 S. W. Rep. 355; Agen v. Shannon 103 Mo. 661 — 15 S. W. Rep. 757; Moore v. Davis, 85 Mo. 464; Henry v. McKerlie, 7s Mo. 416; Alsbrook v. Eggleston, 69 Miss. S33 — 13 So. Rep. 850; Johnson v. Cooper. , r )6 Miss. 60S.) When Confirmation Presumed. § 302. Ratification or acquiescence by the parties in in- terest is sometimes considered tantamount to an actual con- firmation by the court. The lapse of time together with the payment of the purchase money, long continued, qniet posses- sion of the property under the purchase, and the deed all raise the presumption that the sale has been properly re- ported to the court and by it confirmed, and proof of actual confirmation is sometimes dispensed with. Such acts and ac- quiescence amount to a recognition of the sale as valid and work an estoppel against subsequent attack for want of con- firmation, in an action involving the possession of the land. If there is something from which the inference of confirma- tion can be drawn, or if there is something which in equity and good conscience would entitle the purchaser to a con- firmation, he will, as a general rule, hold the land upon col- lateral assault, despite the fact that there is no decree of confirmation actually made and of record. (Moody v. Butler, 63 Tex. 210; Simmons v. Blanchard, 46 Tex. 266; Neill V. Cody. 26 Tex. 289; Smith v. Wert, 64 Ala. 34; Watts v. Scott, 3 Watts, 79; Gowan v. Jones. 10 S. & M. 164; Eenderaon v. Herrod, 23 Miss. 434; Tipton v. Powell. 2 Coldw. 19; Moore v. Greene. 19 How. 69; Greer v. Anderson, 62 Ark. 213 — 35 S. W. Rep. 215; Penn v. Heisey, 19 111. 295; Redus v. Harden. 43 Miss. 614.) Confirmation by Estoppel. § 393. In case no sufficient time has elapsed since the sale to raise the presumption of confirmation by acquiescence, and 350 VOID JUDICIAL AXD EXECUTION' SALES. notwithstanding the fact that there has been no order of ap- proval made or entered, the sale may still be irrevocably con- firmed as to one or the other of the interested parties, by his acts in regard thereto, and thereafter the sale be confirmed as to him on account of his estoppel from asserting any of its ingredients of legal infirmity. This ratification may be brought about by accepting the proceeds of a judicial or exe- cution sale, or a part thereof, by the judgment debtor, rea- lized from a sale of his property, for by so doing he ratifies such proceedings and sale, and makes the same conclusive as to him. He admits the legality of the proceedings of sale and thereafter is estopped from impeaching it. The acceptance of the whole or a portion of the proceeds of such a sale is an unconditional waiver of all defects thereof on the part of the debtor who thus knowingly receives such money, and this whether the sale be merely voidable or altogether void, he can not thereafter assert the invalidity as against those who have acted on it as valid and in good faith. (Hazel v. Lyden. 51 Kan. 233 — 32 Pac. Rep. S98; Palmerton v. Hoop, 131 Ind. 23 — 30 N. E. Rep. 874; Iron Co. v. Fullenweider, 87 Ala. 584 — So. Rep. 197 ; Fallon v. Worthington, 13 Colo. 559 — 22 Pac. Rep. 960; Ogden v. Dupuy, 99 Ala, 36 — 11 So. Rep. 419; Bumb v. Gard, 107 Ind. 575 — 8 N. E. Rep. 713; Southard v. Perry, 21 Iowa, 4S8 — 89 Am. Dec. 587; Huffman v. Gaines, 47 Ark. 226 — 1 S. W. Rep. 100; Merritt v. Home, 5 Ohio St. 307 — 67 Am. Dec. 298; Hartshorn v. Portroff, 89 111. 509; Hare v. Hall, 41 Ark. 372; Maple v. Kusart, 53 Pa. St. 352 — 91 Am. Dec. 214; Stroble v. Smith. 8 Watts. 2S0; Deford v. Mercer, 24 Iowa, 118; Robertson v. Bradford, 73 Ala. 116; Test v. Larch, 76 Ind. 452 ; Herndon v. Moore, 18 S. C. 339 ; Kile v. Yellowhead, SO 111. 208; Latimer v. Rogers, 3 Head, 692; Mather v. Knox, 34 La. Ann. 410: Goodman v. Winter, 64 Ala. 410; Weist v. Grant, 71 Pa. St. 95; Rowe v. Major, 92 Ind. 206; Kindell v. Frazer, 9 Heisk. 727.) Confirmation may be Annulled but not Collaterally. § 394. The order of confirmation being in the nature of a final order, judgment or decree, if the court has jurisdiction of the cause, it can not be successfully assailed in a collateral pro- ceeding, the order being conclusive when questioned in this manner, and appeal is the only remedy. (Phillips v. Dawley, 1 Neb. 320: Crowell v. Jolmson. 2 Neb. 146.) But if the confirmation, or ratification as it is termed in some states, is made or obtained through mistake, inadvert- WHAT IEEEGULAEITIES ABE CUBED BY C0NFIBMATI0N. 351 ence or fraud, it may be vacated in the same case upon timely application for such relief. (Montgomery v. Williams, 37 Md. 121; Krone v. Linville, 31 Md. 13S.) WHAT IRREGULARITIES ARE CURED BY CON- FIRMATION. Appraisement or Inquisition Wanting. 8 395 The curative powers of the order of confirmation in judicial and execution sales extend to sales which are void- able, rather than to such as are void; and hence anything partaking of a jurisdictional nature is not affected thereby though many irregularities with which the sale mav be beset are cured by the confirmation. All matters properly consid- ered upon the confirmation are conclusively adjudicated, and can thereafter be considered only upon appeal or by direct action in equity upon equitable grounds. Accordingly, where an appraisement of the land to he sold is required by statute, in order to prevent the sacrifice of the same, and that it shall not be sold for less than a proportionate amount ot the appraised value, if such appraisement is irregularly made, or is entirely wanting, the defect is cured by the order of con- firmation properly entered. (Watson v. Tremble, 33 Neb. 450-50 N. W. Rep. 881; ; Wjlc« Jj Raben, 24 Neb. 368-33 N. W. Rep. 844; Nel.gh V. Keene, 16 Neb. 407 — 20 N. W. Rep. 277.) Defects in Notice or Want of Notice. § 396. Confirmation cures a defect in the sheriff's notice of sale caused bv reason of an omission to publish it as many 'times as required by law; and as a general rule all defects occurring in the advertisement of the sale are cured by the approval thereof. (Wyant v. Tuthill, 17 Neb. 495-23 N. W. Rep. 342 -Jackson v. McGruder, 51 Mo. 55; Brubaker v. Jones, 23 Kan. 411; Rounsaville v. Hazen, 33 Kan. 71 — 5 Pac. Rep. 422 ; Pritchard v. Madren, 31 Kan. 71 — 2 Pac. Rep. 691.) And even the entire absence of notice of sale is an irregu- larity which is cured by the order of confirmation. (Montgomery v. Johnson, 31 Ark. 74; Apel v. Kelsey, 47 Ark. 413 — 2 S. W. Rep. 102.) 352 V0LD JUDICIAL AND EXECUTION SALES. Sale at Wrong Time or Place or Person. § 397. "Where a sale by a guardian is ordered to be made on a certain day, but the advertisement and sale was made on an- other day, it is not without power and consequently not void, and if confirmed is impervious upon collateral assault, no fraudulent combinations or conspiracies appearing. (Conover v. Musgrove, 6S 111. 58.) Or if the sale was made at a different time and place than prescribed by statute it is an irregularity but is cured if con- firmed. (Brown v. Christie. 27 Tex. 73 — 84 Am. Dec. 607; Blodgett v. Hitt, 29 Wis. 169; Neal v. Bartheson, 65 Tex. 478; Beidler v. Freidler, 44 Ark. 411.) Notwithstanding the statutory inhibition that no adjourn- ment of sale shall be for more than one week, a sale after an adjournment for four weeks is in effect a sale upon the original notice and is sufficient when approved. (Gager v. Henry, 5 Sawyer, 237.) And a sale prematurely made in violation of statute is sus- tained when properly confirmed, if questioned in a collateral way. (Cross v. Knox, 32 Kan. 725 — 5 Pac. Rep. 32; Lynch v. Kelly, 41 Cal. 232.) That the sale was conducted by the wrong person furnishes ground for objection to the report, but after the approval by the court, exceptions for this reason come too late, as the irregularity is cured then. (Kirk v. Kirk, 137 N. Y. 510 — 33 N. E. Rep. 552; Eaton v. White, 18 Wis. 543; Woodhull v. Little, 102 N. Y. 165 — 6 N. E. Rep. 266; Abbott v. Curran, 98 N. Y. 665; Harteneaux v. Eastman, 6 Wis. 410.) And a sale by one of two administrators upon an applica- tion therefor made by both is sufficient when confirmed, and the deed by such fiduciary passes the title to the property. (Osman v. Traphagan, 23 Mich. 80; Vernor v. Coville, 54 Mich. 2S1 — 20 N. W. Rep. 75; Herrick v. Carpenter, 92 Mich. 440 — 52 N. W. Rep. 747.) Departures from Order or Decree. § 398. As a general rule, in the absence of fraud or com- bination, a departure by a master, commissioner or other WHAT [REEGULABITIES ARE CURED BY CONFIRMATION. 353 functionary from the terms of sale indicated in the decree or order, must be raised by way of objections to the confirmation, or else it will be waived, [f the officer changed the term- of sale it may be ratified by the courl by confirmation, provided the terms, as changed, were such as might have been desig- nated by the court in the first instance. (Robertson v. Smith, 94 Va. 250 — 26 S. E. Rep. 5^9: McGavock v. Bell, 3 Coldw. 512; Langyher v. Patterson, 77 Va. 470; Emery v. Vro- man. 19 Wis. 689 — 88 Am. Dec. 726; Jacobs' Appeal, 23 Pa. St. 477: Thorn v. Ingram, 25 Ark. 58.) Or that the property was sold at private sale when the order of the court directed a public one, is cured by confirma- tion, despite the departure from the peremptory mandate of the order; (Apel v. Kelsey. 52 Ark. 341 — 12 S. W. Rep. 703.) and the sale of too much land for an amount in excess of that authorized to be raised by the order of sale, (Dawson v. Litsey, 10 Bush, 408.) as veil as the omission to verify the report of sale, are ratified by the order of confirmation. (Dennis v. Winter, 63 Cal. 16; Sprogins v. Taylor, 4S Ala, 520.) So if the decree of sale establishes the day of sale, but the mandates thereof are disregarded and the sale had upon an- other day it is irregular, and may be avoided before but not after confirmation. (Tompkins v. Tompkins, 39 S. C. 537 — 18 S. E. Rep. 233.) Defective Bond or Omission to Give Bond. § 300. While an order of confirmation is coram noil judice and void if made in a case when 1 the court was without juris- diction, yet if jurisdiction was acquired the order confirming the sale will be upheld in the protection of an innocent pur- chase, although under other circumstances it would be con- sidered invalid by reason of a deviation from statutory re- quirements in the conduct of the sale. (Cunningham v. Anderson, 107 Mo. 371 - 17 s. W. Rep. 972: Mitchell v. Bowen, 8 End. 197 — 65 Am. Dec. 758; Apel r. Kelsey, 47 Ark. 413 — 2 S. W. Rep. 102; Brown v. Christie; 27 Tex. 73 — 84 Am. Dec. 607; May v. Logan Co., 30 Fed. Rep. 250.) 23 354 VOID JUDICIAL AXD EXECUTION SALES. Hence, it is held that a sale is not void as against an in- nocent purchaser because of a failure to give a bond, as this is not considered a jurisdictional step, nor is a defect in the original bond, nor a defect in the additional bond fatal to the proceedings of sale, these being all irregularities which are cured by the order of confirmation. (Hamiel v. Donnelly. 75 Iowa. 93 — 39 X. W. Rep. 210; Davidson v. Bates, 111 1ml. 391 —12 X. E. Hep. 687; Howbert v. Heyle, 47 Kan. 58 — 27 Pae. Rep. 116; Arrowsmith v. Gleason, 129 U S. 86 — 9 Sup. Ct. Rep. 237: Kelly v. Morrell, 29 Fed. Rep. 730; Hamilton v. Winona Bridge Co.. 51 Minn. 97 — 52 X. W. Rep. 1079.) Other Irregularities Cured. § 400. The irregularity of an alias execution improperly issued can not be inquired into after the confirmation of a sale had thereunder; (Dickens v. Crane. 33 Kan. 344 — 6 Pac. Rep. 630.) and upon collateral attack the order of confirmation is a con- clusive adjudication upon the question of inadequacy of price. (Daly V. Ely. 51 X. J. Eq. 104 — 26 Atl. Rep. 263; Parker v. Shannon, 137 HI. 376 — 27 N. E. Rep. 525; Berry v. Lovi, 107 111. 612; Thomas v. Hebenstreit, 68 111. 115; Hamilton v. Quimby. 46 111. 90.) If there is a discrepancy between the description in the deed and that in the order of sale, and if it is possible to construe the description of the property sold with that in the order, confirmation cures the discrepancy. (Berry v. Young, 15 Tex. 369.) A sale in equity by a sheriff without a renewal of the order of sale, though by statute this is required, is not void, as the judgment is ample authority for the sale, and the confirma- tion validates the sale respecting such deviation from stat- utory requirement. (Hamer v. Cook, lis Mo. 476 — 24 S. W. Rep. ISO.) The substitution of another as the highest bidder at a probate sale will not invalidate the same, if such person is reported to the court as the purchaser, and the sale properly confirmed to such substituted person, the original order direct- ing the sale and the order of confirmation giving validity to the sale iKuing v. Eigby, T Ohio. 198 — 28 Am. Dec. 633; Halleek v. Guy. 9 Cal. 181 — 70 Am. Dec. 04::.) WHAT IRREGULARITIES ARK CURED BY CONFIRMATION. 355 Failing to sell the land in parcels as by law required is cured if the sale is subsequently confirmed by the courl (McCampbell v. Durst. 73 Tex. 5 — 13 S. W. Rep. L87; Smith v. Scholtz, 68 X. Y. 41; Emery v. Vroman, 19 Wis. 089 — SS Am. Dec. 726.) Sales without Notice or Order. § 401. Where probate sales of lands of a decedent are con- sidered adversary proceedings, notice of the application for an order of sale is a jurisdictional requirement, and if this is wanting the sale will be void, the invalidity being one which the order of confirmation does not reach. (Dorrance v. Raynsford, 67 Conn. 1 — 34 Atl. Rep. 706; Clark v. Thompson, 47 111. 25 — 95 Am. Dec. 457; Fell v. Young, 63 III. 106; Botsford v. O'Conner, 57 111. 72.) So a sale of a tract of land by an administrator or guardian without the previous order from the court directing such sale is utterly void, and confirmation can give it no validity, as the order of sale is in fact the judgment upon which the sale must rest, which the confirmation can not supply. (Collins V. Ball, S2 Tex. 259 — 17 S. W. Rep. 614; Melton v. Fitch, 125 Mo. 281 — 28 8. W. Rep. 612; Green v. Holt. 76 Mo. 677; Ex parte Kirkman, 3 Head, 517; Evans v. Ball, 64 Mo. 516; Huberman v. Evans, 46 Neb. 784 — 65 N. W. Rep. 1045; Walbridge v. Day, 31 111. 379 — 83 Am. Dec. 227; Evans v. Snyder, 64 Mo. 516.) Defects Considered Incurable by Confirmation. § 402. In Iowa and Mississippi it is held that a private sale of property, whether real or personal, by an administra- tor, is void and may be collaterally assailed by the heirs, and being a nullity it can not be validated by confirmation. (Van Horn v.*Ford, 16 Iowa, 578; Varten v. Howard. 2 S. & M. 527 — 41 Am. Dec. 607.) And in Missouri the provision of law regarding appraise- ment in sales by guardians and administrators is held manda- tory, and a sale below the minimum provided for by statute is void and can not be cured by the confirmation. (Carder v. Culbertson, 100 Mo. 269 — 13 S. W. Rep. 88.) Nor will the order of confirmation of a sale made by one not authorized to make it, cure the defect and make the sale valid, the sale is nevertheless void collaterally. (Stafford v. Harris, 82 Tex. 17S — 17 S. W. Rep. 530; Fryor v. Downey, 50 Cal. 388 — 19 Am. Rep. 656.) 356 VOID JUDICIAL AND EXECUTION SALES. Under statutes providing that when certain things appear to have been clone in sales by administrators, executors and guardians, among them being notice of sale, oath and bond, the sale shall not be avoided by the heir or ward, it is held that these are adversary proceedings and if omitted the sale • will be void when questioned in a collateral proceeding, con- firmation will not cure the omission. (Weld v. Johnson Mfg. Co., 84 Wis. 537 — 54 N. W. Rep. 335; Wil- liams v. Reed, 5 Tick. 480; Williams v. Morton, 38 Me. 47 — 61 Am. Dec. 229; Tracy v. Roberts, 88 Me. 310 — 34 Atl. Rep. 6S; Montour v. Purdy, 11 Minn. 384—88 Am. Dec. 88; Huberman v. Evans, 46 Neb. 784 — 65 N. W. Rep. 1045; Hartley v. Corze, 38 Minn. 325 — 51 N. W. Rep. 915; Ryder v. Flanders, 30 Mich. 336; Walker v. Goldsmith, 14 Ore. 125 — 12 Pac. Rep. 537; Bachelor v. Korb, 78 N. W. Rep. 4s5.'> If the sale is environed with fraud or fraudulent con- trivances of the purchaser, or he may have actual or presumed notice of such fraud practiced by others, and the record fails to suggest the same when the sale is brought on for confirma- tion, such infirmity is not passed upon nor cured by the order of confirmation, and accordingly remains open to be subse- quently questioned in some appropriate proceeding. (Jackson v. Ludeling, 21 Wall. 633; Bank v. Walden, 1 La. Ann. 46.) DEED ESSENTIAL TO THE TRANSFER OF LEGAL TITLE. In Judicial and Probate Sales. § 403. In strict judicial and probate sales a deed from the proper officer is essential to pass the legal title of the property to the purchaser. Confirmation is an indispensable step in the proceedings of sale, and in popular phraseology the sale is then completed, but still the title is not yet trans- ferred to the purchaser so as to invest him with the muni- ments thereof which are necessary to enable him to substan- tiate his claim to the property. Until he has received a proper conveyance it has been held that he can not success- fully maintain ejectment for the possession thereof, for an heir or his vendee may maintain ejectment against the pur- chaser, even though he has paid his money, has gone into possession, and his purchase has been indorsed by the court. DEED ESSENTIAL TO THE TEANSFEB OF LEGAL TITLE. 357 (Greenough v . Small. i::7 Pa. St. 132 — SO Atl. Rep. 396; Strange v. Austin. 134 Pa. St. 96 — 19 Atl. Rep. 492; Leshey v. Gardner, 3 W. & S. 314 — 38 Am. Dec. 764.) Hence, until the deed is executed and delivered, in a legal sense, no title to the property has passed to the purchaser, (Leshey v. Gardner. 3 W. & S. 314 — 38 Am. Dec. 764; Williamson V. Berry, 8 How. 496; Childress v. Hurt, 2 Swan. 487; Rawlings v. Bailey, 15 111. ITS; Blossom v. Railway Co., 3 Wall. 207; Goss v. Meadors, 7s Ind. 528.) In Execution Sales. § 404. "While at an execution sale the purchaser is vested with the equitable title on compliance with the terms of his bid and confirmation, his rights to the title are still con- ditional, but may become absolute by the lapse of the period of redemption, or may be defeated by the exercise of the right of redemption by the judgment creditor, yet the legal title is still vested in the judgment debtor until it is passed to the equitable owner by the execution and delivery at the proper time, of the sheriff's deed. Until then, in the absence of statute expressly authorizing it, the purchaser or his succes- sor in interest, is not entitled to the possession of the premises. (Morrow v. Moran, 5 Wash. 692 — 32 Pac. Rep. 770; Lamb v. Sher- man, 19 Neb. 681 — 28 N. W. Rep. 319; Yeazel v. White, 40 Neb. 432 — 58 N. W. Rep. 1020 ; Jewett v. Tomlinson, 137 Ind. 326 — 36 N. E. Rep. 1106; Ross v. Donaldson, 123 Ind. 238 — 24 N. E. Rep. 109; Hayes v. Mining Co.. 2 Colo. 273; Robinson v. Hall, 33 Kan. 139 — 5 Pac. Rep. 763; Cantwell v. McPherson, 34 Pac. Rep. 1095; Goss v. Meadors. 78 Ind. 528.) The certificate of purchase is evidence of a lien upon the property somewhat higher in its nature than the antecedent judgment lien, but it is nevertheless nothing but a lien which does not vest a legal estate or title in the purchaser, and is a right yet resting on the judgment and owing its efficacy to it; (Robertson v. McCleave, 129 Ind. 217 — 26 N. E. Rep. S99; Shirk v. Thomas, 121 Ind. 147 — 22 N. E. Rep. 976; Leger v. Doyle, 11 Rich. 109 — 70 Am. Dec. 240; Jewett v. Tomlinson. 137 Ind. 326 — 36 N. E. Rep. 1106; Rogers v. Cawood, 1 Swan, 142 — 55 Am. Dec. 729; Curtis v. Millard, 14 Iowa, 12S — 81 Am. Dec. 160; Robinson v. Garth, 6 Ala. 204 — 41 Am. Deo. 47; Strain v. Murphy, 49 Mo. 337; Anthony v. Wea- sel, 9 Cal. 103; Duprey v. Moran, 4 Cal. 196.) nor will the debtor's estate become vested in the purchaser by the mere lapse of the time of redemption, but only by the 358 VOID JUDICIAL AND EXECUTION SALES. proper deed of conveyance pursuant to the statute, where- upon the purchaser becomes the owner. (Smith v. Colvin, 17 Barb. 157; Vaughn v. Ely, 4 Barb. 159; Ever- ingham v. Barden, 58 Iowa, 133—12 N. W. Rep. 142; Rogers v. Ca- wood, 1 Swan, 142 — 55 Am. Dee. 729 ; Leger v. Doyle, 11 Rich. 109 — 70 Am. Dec. 240; Curtis v. Millard. 14 Iowa, G07 — 81 Am. Dec. 460.) In Several States Deed net Essential. § 405. The rule that the legal title in execution sales does not pass to the purchaser until the execution and delivery of the deed does not obtain in several of the states, where it is held that if the proceeding's and judgment are regular, a party claiming under the execution as purchaser is not re- quired to show a deed to substantiate his claim of ownership of the land, but that the title of the purchaser depends upon the valid judgment, levy and execution, and the payment of the purchase money, the legal estate being transferred under the execution by operation of law. (Lop. n v. Pierce. 66 Tex. 120 — 18 S. W. Rep. 343; Pasley v. Mc- Connell, 38 La. Ann. 470; Leland v. Wilson, 34 Tex. 79; Fleming v. Powell, 2 Tex. 225; Boring v . Lemmon, 5 II. & J. 22:; : Remington v. Linthicum, 14 Pet. 84; Jouet v. Mortimer. 29 La. Ann. 206; Donnebaum V. Tinsley, 54 Tex. 362.) WHEN, BY WHOM AND TO WHOM, DEED TO BE MADE. By Whom Deed Executed in Execution Sales. § 406. In sales under execution the deed must be made by the sheriff, or by his general deputy. It is immaterial which one executes the instrument, but in any event it must be made in the name of the sheriff, and purport to be his act, and not the act of the deputy, unless there is express pro- vision of •statute authorizing it; the execution of the convey- ance being but a ministerial act, the power to perform it may be thus delegated t<> the deputy. (Gibson v. Bank, 98 N. Y. 87; Jordan v. Terry, 33 Tex. 680; Mc- Allister v. Lynch. 68 N. Y. 473; Arnold v. Scott, 39 Tex. 368; Jackson V. Davis. 18 Johns. 7; Oorham v. Gale, 7 Cow. 739 — 17 Am. Dec. 549; Young v. Smith, 10 B. Mon. 293: Can v. Hunt. 14 [owa, 206; Haines v. Lindsey, 4 Ohio, 88; Kellar v. Blanchard, :.'l La. Ann. 3S; Robinson v. Hall, 33 Kan. 139 — 5 Pac. Hep. 763; Rowley v. Howard, 23 Cal. 401; Anderson v. Brown, 9 Ohio, 151.) WHEN, BY WHOM AND TO WHOM, DEED TO BE MADE. 359 In the absence of statutory provision to the contrary, a deed may be made by a deputy after the expiration of the term of office of his principal, even if the sheriff himself did make the sale, and at the time of the execution of the deed by the deputy he is out of the state; (McAllister v. Lynch, 68 N. Y. 473; Lofland v. Ewing, 5 Lilt. 42 — 15 Am. Dec. -41: Tyree v. Wilson. 9 Gratt. 59 — 58 Am. Dec. 213; Tuttle v. Jackson, 6 Wend. 213; Gorham v. Gale, 7 Cow. 739 — 17 Am. Dec. 549; Robinson v. Hall, 33 Kan. 139 — 5 Pac. Rep. 703; Mills v. Tukey, 22 Cal. 373—83 Am. Dec. 74.) though it is held in an early case in Ohio that the execution of a deed by the deputy after the death of the sheriff is void, the power of the deputy terminating with the death of the prin- cipal. (Anderson v. Brown. 9 Ohio, 151. In the absence of statute permitting it, if the deputy exe- cutes the deed of conveyance in his own name the instrument is void according to the uniform declarations of judicial de- cisions. (Evans V. Wilder, 7 Mo. 359; Anderson v. Drown, 9 Ohio. 151; Lewes V. Thompson, 3 Cal. 266; Samuels v. Shelton, 48 Mo. 444: Eyerman v. Payne. 28 Mo. App. 72.) The authority to sell conferred by the execution in the hands of the officer, as a necessary inference, also confers upon him the authority to execute all instruments required by law to the complete consummation of the sale, the certificate of purchase and the deed of conveyance, in the event there is no redemption, where redemption i^ provided by statute. At common law the sheriff who conducted the sale, or his general deputy, must execute the deed to land sold by him while in office', though his term of office has expired and another in- cumbent substituted in his place. This is also the rule in many of the states. (Robinson v. Hall. 33 Kan. 373 — 5 Pac. Rep. 763; Tuttle v. .Tackson, 6 Wend. 213; Lemon v. Craddock, Litt. S. C. 251 — 12 Am. Dec. 301; Allen v. Trimble. 4 Bibb, 21 — 7 Am. Dec. 726; Porter v. Mariner, 50 Mo. 364; Gibbs v. Mitchell, 2 Bay, 120; People v. Boring. 8 Cal. 406 — 68 Am. Dec. 331.) However, in some states the new incumbent is the only officer who is authorized to execute the convevance in case the 360 VOID JUDICIAL AXD EXECUTION SALES. term of office of the sheriff making the sale shall have expired before a sufficient deed has been made. (Faull v. Cooke, 19 Ore. 455 — 26 Pac. Rep. 662; Conger v. Converse, 9 Iowa. 554: Moore v. Lock Co., 7 Ore. 359; Fretwell v. Morrow, 7 Ga. 264; Fowble v. Rayberg, 4 Ohio, 45.) And in other states the new sheriff is empowered by statute under certain contingencies, such as the death or other dis- ability of the old officer, to execute the deed, in which case the power to execute is strictly limited to the contingencies prescribed bj law, and if made in their absence the deed is a nullitv and will not transfer the legal title to the grantee. (Worthen v. Cherry. 3 Head. 468; Edwards v. Tipton, 77 N. C. 222; Thornton v. Boyd. 25 Miss. 598.) And should it so happen that at the time when the certifi- cate of purchase i? returned and deed demanded, there is no one in existence who is invested with authority to make the conveyance, the holder of the certificate may apply to the court for the appointment of a commissioner to execute the deed; (Sickles v. Hogeboom. 10 Wend. 562; People v. Boring, 8 Cal. 406 — 68 Am. Dec. 331.) or the purchaser may resort to a suit in equity for the purpose of having the title declared divested by virtue of the sale. (Stewart v. Stoker. 33 Ala. 494 — 73 Am. Dec. 429.) A deed which is made and signed by one sheriff and ac- knowledged by another, his successor in office, is absolutely void. (Woods v. Lane, 2 S. & R. 53.) By Whom Deed Made in Chancery and Probate Sales. LOY. In Michigan and Missouri it is held that if the sale and conveyance be made by one only of two administra- tors, it is good if otherwise regular, upon the principle that the sale is attached to the office and not to the person, and thai each of the fiduciaries is clothed with the full powers of the office. (Osman v. Traphagen, 23 Mich. SO; Valle v. Fleming. 19 Mo. 454 — 61 Am. Dec. 566.) Tn sales of lands of a decedent by administrators the deed rnusl be made by the fiduciary himself, as the power to WHEN', BY WHOM AND TO WHOM, DEED TO BE M VDE. 361 execute the conveyance can not be delegated by him to an- other, and is an act that can only be performed by the ad- ministrator himself, who can be compelled to execute 1 the deed if he be within the jurisdictional limits of the court. (Gridley v. Phillips, 5 Kan. 349.) A deed executed as administrator when in fact the officer was the executor is good as the error is one of description of the person only, which can not invalidate the instrument; (Norman v. Olney, 66 VOID JUDICIAL AND EXECUTION SALES. WHEN DEED VOID BECAUSE DEFICIENT IN FORM AND SUBSTANCE. General Rule as to Sufficiency of Deed. § 414. As a general rule, deeds based upon sales under execution, as in judicial sales, are sufficient if a mere reference for identification is made to the writ, order of sale or decree, which need not be set out therein at length. Even if an in- accurate reference to the execution is made, the instrument is nevertheless not void on that account, for such variance is deemed immaterial if the deed is in fact based upon a proper foundation — a valid judgment, execution or order, and a levy where one is required. By a parity of reasoning, if the recital of an execution is not absolutely essential to the valid- ity of the deed, any mistake or variance in the recital will not impair the validity of the conveyance. If the deed can be traced back to the authentic source, such variance is but a mere irregularity and immaterial, in so far as the efficacy of the deed is concerned. Therefore, if there is sufficient in the deed to identify the judgment and execution under which the sale was made, any misrecital may be rejected as surplusage. Even if it is a statutory requisite that a reference in the deed be made to the order of sale and confirmation, or that the same be set out therein, mere errors in such reference are not fatal, if it is apparent that it is a mistake, and this is evident from the whole instrument. If the intention to embrace the proper orders can be gathered from the deed taken as a whole, and that these were actually made, the instrument is not void, as a general rule (Jones v. Taylor. 7 Tex. 240 — 56 Am. Dec. 48; Moore v. Wingate, 53 Mo. 398; Sheldon v. Wright. 5 1ST. Y. 497; Clark v. Sawyer, 48 Cal. 133*; Mitchell v. Bliss, 47 Mo. 35?,; Humphrey v. Beeson, 1 G. Greene, 199 — 48 Am. Dec. 370; Davis v. Kline, 7(1 Mo. 310; Williams v. Woodman, 73 Me. 163; Clover v. Biiilin, 6 Ohio. 255; Thomas v. Le Baron, 8 Met. 361; Bolman v. Gill, 107 111. 4f>7: Armstrong v. McCoy, 8 Ohio, 128 — 31 Am. Dec. 435; Jackson v. Jones, 9 Cow. 182; Reid v. Heasley, 9 Dana, 324; Swift v. Agnes, 33 Wis. 228; Speck v. Biggins, 40 Mo. 405; Frazier v. Moore, .11 Tex. 755; Loomis v. Riley, 24 111. 307; Acock v. Stuart, 57 Mo. 150.) WHEN DEED VOID BECAUSE DEFICIENT IX FORM. 36T Recitals Sufficient in Teed under Execution. _ 8 415 If a deed made in pursuance of an execution sale recites enough to show the authority of the officer to sell, it is generally considered sufficient, notwithstanding its fail* to recite all the statute requires in this regard. To this extent the same rule obtains in deeds under execution as to those ma de under decrees or orders of court, for the authority oi the officer to make the sale and execute the conveyance depends upon precedent facts, the showing of which is not restricted to the recitals in the deed but may be shown otherwise. (Burt v. Haasehnan, 139 Ind. 100-3* X. E Rep 598; Wilson v. Campbell, 33 Ala. 240-70 An, Deo. 586; Perkms v. KM* 1 <>^ 4 «-36 \m Dec. 97: Martin v. Beeson. 1 G. Greene, 109-48 Am. Z. 370 ; tlb v. Sherman, 19 Xeb. 681 - 28 X. W. Rep. 319 ; Ha,™ ^Maxwell. 2 Xott & MeC. 347-10 An, Dec. 611; Armstrong v M* Cov. 8 Ohio. 128-31 An, Dec. 435: Howard v. North 5 Tex. 290 51-Am. Dec. 769; Blood v. Light, 88 0* 649 - 9 An.- Dec 441 Buchanan v. Tracy. 45 Mo. 437; Brooks v. Rooney. 11 G* JM 56 An, Dec. 430; Phillip, v. Coffee. 17 111. 154-63 Am. Dec. 3o7; Hind v Scott. 11 Pa. St. 19-51 An, Dec. 506: McGuire v. Kouns. , f. B. Mon 386-18 Am. Dec. 187; Stow v. Steel, 45 111. 328; Keitn v. Kerth, 104 111. 401; Haskins v. Wallet, 63 Tex. 213.) Even in states where particular recitals are by statute re- quired to be contained in the deed, courts have generally held such provisions not mandatory, and a non-compliance there^ with not necessarily fatal. In such states, if the deed is not executed in conformity to the requirements of statute, but discloses the authority to sell and that this authority has been pursued in substantial compliance with all the require- ments of the law, the instrument has almost universally been held sufficient, notwithstanding the deviation from the pre- scribed form. The object in requiring particular recitals is to make the deed evidence, and not to make it void m case of non-compliance with the statute. (Clark v. Sawyer. 48 Cal. 133: Jordan v. Bradshaw, 17 Ark. 106-65 Am Pec 419- Perkins v. Dibble. 10 Ohio. 433-36 Am. Dec. 9, ; Betti fon 'v B„dc " H Ark. 540-65 An, Dec. 442; Ogden v. Walters, L2 Kan. ^^hnan v. Gill, 107 111. 407: Buchanan v. Tracy, 45 Mo. 437; Stram V. Tracy, 49 Ind. 337.) In Missouri it is held that a deed is void upon its face when it appears that the property was sold for less than three- 368 VOID JUDICIAL AND EXECUTION SALES. fourths of the appraised value, in violation of the statute in this regard. (Carder v. Culbertson, 100 Mo. 269 — 13 S. W. Rep. 88.) Instances of Omission or Insufficient Recitals. § 416. If certain recitals are not indispensable to the va- lidity of the deed, the misrecital of any such fact, as a logical sequence, will not make the instrument void. It is the settled policy of the law to sustain, rather than destroy, the validity of compulsory sales under judicial proceedings. (Holston v. Needles, 115 111. 461 — 5 N. E. Rep. 530; Howard v. North. 5 Tex. 290 — 51 Am. Dec. 769; Saltonstall v. Riley, 28 Ala. 164 — 65 Am. Dec. 334; Wilson v. Campbell, 33 Ala. 249 — 70 Am. Dec. 586; Doe v. Rue, 4 Blackf. 263 — 29 Am. Dec. 368; McGuire v. Kouns, 7 T. B. Mon. 386 — 18 Am. Dec. 187; Carmichael v. Strawn, 27 Ga. 341; Stow v. Steel. 45 111. 328; Swift v. Lee, 65 111. 330; Kruse v. Wilson, 79 111. 233; Blood v. Light, 3S Cal. 649 — 99 Am. Dec. 441: Harlan v. Harlan, 14 Lea. 107: Hughes v. Dice, 1 Swan, 329; Herrick v. Graves, 16 Wis. 157; Allen v. Sales, 56 Mo. 28.) The omission to recite in the sheriif's deed from what court the writ issued under which he sold will not make the deed void, provided the execution did in fact issue out of the proper court and has been properly returned, thus supplying the discrepancy. (Hayward v. Cain. 110 Mass. 273; Welsh v. Joy, 13 Pick. 477.) Or where there is no recital of a levy under the execution, (Foulk v. Colburn, 48 Mo. 225.) or a failure to show the reason why a sale was not made at the first term of the court at which the writ was returnable, (Groner v. Smith, 49 Mo. 318; Stewart v. Severance. 43 Mo. 322.) or a misrecital of the exact day whereon the sale occurred, (Buchanan v. Tracy, 45 Mo. 437; Strain v. Murphy. 49 Mo. 337.) will not make the deed a nullity. And if the execution mis- recites the date of the judgment the irregularity is immaterial, and a misrecital of the execution in the deed where authority to sell in fact existed, doc* not affect the validity of the deed. (Mills v. Lombard, 32 Minn. 259 — 20 X. W. Rep. 1>~ : Wilson v. Madison, 55 Cal. 5; Blood v. Light, 38 Cal. 649 — 99 Am. Dec. 441.) Tint if the time of sale is required to be recited, and where under the statute a sale under execution can take place only WHEN DEED VOID BECAUSE DEFICIENT IN FOEM. 369 at certain designated periods, as for instance, during- a term of the court, the recital is essential and the deed void with- out it ; (Tanner v. Stein, IS Mo. 580-59 Am. Dec. 320; Martin v. Bonsach, 61 Mo. 556.) or where the deed did not contain a recital of a judgment, the deed was held void, the omission being of a matter absolutely essential to the support of the proceedings of sale (Dufour v. Camfranc, 11 Mart. G07 — 13 Am. Dec. 360.) Deeds in Probate Proceedings. § 417. In Illinois under a statute requiring that the order in a probate sale be fully set out in the deed it was held that this requirement was imperative, and a mere recitation of the substance of the order insufficient and fatal to the deed, the provision being mandatory. (Smith v. Hileman, 1 Scam. 323.) But it is difficult to harmonize this decision with the general principles of law in this regard. If the order is sufficiently referred to in the conveyance so as to identify the same, 1 am unable to comprehend by what process of reasoning or rule of law, the deed can be considered void, unless substance is made to yield to form. If there was an entire omission to refer to the order or a radically imperfect reference thereto was made, there would be some reason in holding the deed void under such statutes, though even this is not universally held sufficient to avoid the deed. (Aitken v. Kinnan, 20 Wend. 241-32 Am. Dec. 534: Hamnian v. Mink. 99 Ind. 279.) In the absence of provision of statute as to form or con- tents of deeds by administrators, executors and guardians, the convevances of these officials should make special refer- ence to the «»rder or license under which they have sold the land, and that the proceedings had by them were under and in pursuance of such order or license. (Jones v. Taylor, 7 Tex. 240-56 Am. Dec. 48; Bobb v. Barnum 59 Mo. 394; Howard v. Lee. 25 Conn. 1-65 Am. Dec. 550; Henry v. Mc- Kerlie. 78 Mo. 416. Kingsbury v. Wild, 3 N. H. 30; Watson v. Watson, 10 Conn. 77.) 24 370 VOID JUDICIAL AXD EXECUTION SALES. Kecitals as Evidence by Statute. § 418. Recitals in deeds based upon sales under execution are made evidence by statute in several states, and are re- garded generally as prima facie true as concerns the various steps in the proceedings of the officer as well as the precedent authority to make the levy and sale. (Farrior v. Houston, 100 N. C. 369 — 6 S. E. Rep. 72; Evans v. Rob- berson, 92 Mo. 192 — 4 S. W. Rep. 941; Bettison v. Budd, 17 Ark. 546 — 65 Am. Dee. 442; Zabriskie v. Meade, 2 Nev. 285 — 90 Am. Dec. 542; MoKee v. Lineberger, 87 N. C. 181; Osborne v. Tunis, 25 N". J. L. 633; Miller v. Miller, 89 N. C. 402; Hardin v. Cheek, 3 Jones L. 135—64 Am. Dee. 600; Kelly v. Creen, 53 Pa. St. 302; Bartlett v. Feeney, 11 Kan. 593; Samuels v. Shelton, 48 Mo. 444; Donahue v. McNulty, 24 Cal. 411 — 85 Am. Dec. 78; Jordan v. Bradshaw, 17 Ark. 106 — 65 Am. Dec. 419; Clark v. Sawyer, 48 Cal. 133; Gossetti v. Kent, 19 Ark. 602; Bonnell v. Roane, 20 Ark. 114; Blatchford v. Conover, 40 N. J. Eq. 205 — 1 Atl. Rep. 16.) Sufficiency of Description Essential. § 419. In deeds founded upon sales under execution as well as those made pursuant to judicial sales, the description of the land sold and intended by the instrument to be con- veyed is a matter of great importance. While the policy of the law does not require the courts to scrutinize the proceed- ings of sale in judicial proceedings with a view of def eating- it, but rather indulges in every reasonable intendment to sus- tain it, yet there must be sufficient in the description to ascertain what land is intended to be transferred thereby. If it fails to give this it is void for uncertainty. (Herrick v. Animermann, 32 Minn. 544 — 21 N. W. Rep. 836; PfeifTer v. Lindsay, 66 Tex. 123 — IS. W. Rep. 264 ; Bassett v. Sherrod, 32 S. W. Rep. 312; Jackson v. Rosevelt, 13 Johns. 97; Clemens v. Ronnels. 34 Mo. 579; Herrick v. Morrill, 37 Minn. 250 — 33 N. W. Rep.'X49; Hughes v. Streeter, 24 111. 647 — 76 Am. Dec. 777; Head v. James. 13 Wis. 641; Deloach v. Bank, 27 Ala. 437; Lafferty v. Higgins, 9 Ohio St. 599; Edmonson v. Hooks, 11 Ired. 373; Hannel v. Smith. 15 Ohio. 134; Round v. Pullen, 3 Yerg. 338; Evans v. Ashley, 8 Mo. 177; Worthing- ton v. Hylyer, 4 Mass. 196; Wooters v. Arledge, 54 Tex. 397; White v. Luning, 93 U. S. 514; Marshal v. Greenfield, 8 O. & J 358 — 29 Am. Dec. 559; De Sepulvada v. Baugh, 74 Cal. 468 — 16 Pac. Rep. 223.) As a general rule, as the deed is but the culmination of the antecedent proceedings in the cause, lli<' intent of the functionary making it may be gathered from such proceed- TITLE OBTAINED BY PUECHASEE AT SALE. 371 ings, if the description contained in the conveyance be am- biguous. Extrinsic evidence may be received to clearly locate and identify the land conveyed in the deed containing an ac- curate but general description, for it is by no means indispen- sable that the property can be identified definitely from a mere inspection of the description in the deed itself. If the am- biguity in the description in the deed is not of sufficient magnitude to make it impossilde to identify the property, either by extrinsic evidence or by consulting the record in the cause, the deed is not void for uncertainty of description. (Smith v. Crosby, 86 Tex. 15 — 23 S. W. Rep. 10: McGhee v. Hoyt. 10G Pa. St. 516; Giddings v. Day, 84 Tex. 60S— 19 S. W. Rep. 682; Godfrey v. Monroe, 101 Cal. 224 — 35 Pac. Rep. 261; Wilson v. Smith. 50 Tex. 370; West v. Cochran, 104 Pa. St. 482; De Sepulvada v. Baugh, 74 Cal. 468 — 16 Pac. Rep. 223; Wildasin v. Rare. 171 Pa. St. 387 — 33 All. Rep. 365; Tatum v. Croom. 60 Ark. 4S7 — 30 S. W. Rep. S85.) Omission or Defective Acknowledgment. § 420. In several states an acknowledgment sufficient in it -elf as such is an essential part of a sheriff's deed under execution. If it lacks an acknowledgment altogether, or is imperfectly acknowledged, the deed is considered void when assailed collaterally, and no title is acquired thereby. (Lee v. Newland, 164 Pa, St. 360 — 30 Atl. Rep. 258; Adams V. Buchanan, 49 Mo. 64; De Haven's Appeal, 38 Pa, St. 373; McClure v. McClure, 53 Mo. 173; McCormick v. Meason, 1 S. & R. 92; Samuels v. Sholton. 48 Mo. 444; Bellas v. McCarty, 10 Watts. 13.) But elsewhere the acknowledgment is not considered es- sential to its validity as a conveyance, and manifestly if de- fective it will not be fatal to the deed, as the acknowledg- ment is considered no part of the deed. (In re Smith, 4 New 254 — 97 Am. Dec. 531; Stephenson v. Thomp- son. 13 111. 186; Dixon v. Doe, 5 Blatchf. 106; Hutchinson v. Kelly, 10 Ark. 178; Ogdcn v. Walters, 12 Kan. 291.) TITLE OBTAINED BY PrBCITASER AT EXECU- TION AND JUDICIAL SALE. In Judicial Sales. § 421. The order of sale or decree is the foundation of the proceedings of sale in a judicial sale and nothing more can 3T2 VOID JUDICIAL AND EXECUTION SALES. be conveyed by the deed made in consummation thereof than was authorized in such order or decree. (Ryan v. Dox. 25 Barb. 440; Neel v. Hughes. 10 G. & J. 7; Shriver v. Lynn, 2 How. 43; Melton v. Fitch, 125 Mo. 2S1 — 2S S. W. Rep. 612; Evans v. Snyder, 34 Mo. 516.) A deed purporting to convey the entire estate in real prop- erty will not convey the interest held by one not made a parry to the proceedings, as a matter of common justice and con- stitutional right, as he must have his day in court. (Telegraph Co. v. Safe Deposit Co., 147 U. S. 431 — 13 Sup. Ct. Rep. 396.) Suits in mortgage foreclosure are judicial and the deed based upon such sale transmits the entire interest of both mortgagor and mortgagee in the premises. (Carter v. Walker. 2 Ohio St. 339; Parmenter v. Birkley, 28 Ohio St. 36 ; Brown v. Bank, 44 Ohio St. 269 — 6 N. E. Rep. 648 ; Andrews v. Wolcott, 16 Barb. 21.) What Title Obtained by Deed under Execution Sale. § 422. It is a general rule of law that the sale and deed under execution transfers to the purchaser only the title of the judgment debtor in the premises conveyed; (Hargraves v. Meneken, 45 Neb. 668 — 63 N. W. Rep. 951; Curriden v. Railway Co., 50 Minn. 454 — 52 N. W. Rep. 966; Westheimer v. Reed, 15 Neb. 632 — 19 N. W. Rep. 502; Dial v. Freeman, 92 N. C. 351; Mc- Arthur v. Oliver, 60 Mich. 605 — 27 N. W. Rep. 689; Gentry v. Calla- han, 98 X. C. 448 — 4 S. E. Rep. 535 ; Mansfield v. Gregory, 8 Neb. 432 ; Dickinson v. Kinney, 5 Minn. 409; Reynolds v. Cobb. 15 Neb. 378 — 19 N. W. Rep. 502; Carney v. Emmons, 9 Wis. 114; O'Neal v. Wilson, 21 Ala. 2S8; Bank v. King, 110 111. 254; Treptow v. Buse, 10 Kan. 170; Emerson v. Sansome, 41 Cal. 552; Taylor v. Eckford, 11 S. & M. 21; Boyd v. Ellis, 107 Mo. 394; Paxton v. Stern, 127 Ind. 289; Morse v. Bank, 47 N. J. Eq. 279.) but not after-acquired interests, which do not pass with the deed. (Westheimer v. Reed, 15 Neb. 662 — 19 N. W. Rep. 626; Erwin v. Garner, 108 Ind. 488 — 9 N. E. Rep. 417.) Covenants of title pass with the deed by operation of law as an incident to the estate. (Mygatt v. Coo, 142 N. Y. 78 — 36 N. E. Rep. 870; Lewis v. Cook. 13 Ired. 193; Andrews v. Wolcott, 16 Barb. 25; Town v. Newland, 3 EFFECT OF DEED BY RELATION. 373 Paige. 540: Carter v. Denman, 23 N. J. L. 270; Markland v. Crump, 1 Dev. & Bat. 94: White v. Presley. 54 Miss. 313; Miller v. Babeoek, 25 Mich. 137; White v. Whiting, 3 Met. 81.) But where the defendant held but the naked legal title to the land unconnected with any beneficial interest therein, no title is transferred by the deed under execution. (Morrison v. Harrington, 120 Mo. 665 — 25 S. W. Rep. 568; Willis v. Loeb, 59 Miss. 169; Baker v. Copenbarger, 15 111. 103 — 58 Am. Dec. 600; Bostick v. Keiser, 4 J. J. Marsh. 597 — 20 Am. Dec. 237; Hunt v. Townshend, 31 Md. 336.) At common law equitable estates could not be subjected to sale on execution, but must be reached through the court of equity, but this rule has no application where the equitable estate is coupled with the possession of the land. (Shoemaker v. Barvey, 43 Neb. 75 — 61 N. W. Rep. 109; Connell v. Galligher, 36 Neb. 749 — 58 N. W. Rep. 438; Dworak v. Moore, 25 Neb. 735 — 41 N. W. Rep. 777: Bank v. Tigh, 68 N. W. Rep. 490; Potter v. Couch. 141 U. S. 296—11 Sup. Ct. Rep. 1005; Brandies v. Cochrane, 112 U. S. 344 — 5 Sup. Ct. Rep. 194; Lee v. Enos, 97 Mich. 276 — 56 N. W. Rep. 550; Calhoun v. Leary, 6 Wash. 17 — 32 Pac. Rep. 1070; Atwater v. Bank, 45 Minn. 341 — 4S N. W. Rep. 187; Doheny v. Dyna- mite Co., 41 W. Va. 1 — 23 S. E. Rep. 525.) Lands fraudulently conveyed may be sold under execution by a judgment creditor of the grantor, and the deed passes the estate to the purchaser, who, upon proving the fraud, is entitled to have a decree in his favor removing the cloud cast upon the estate by reason of the fraudulent deed, and this upon the theory that a fraudulent deed is in legal effect no deed at all. (Lionberger v. Baker, 88 Mo. 447; Woodard v. Mastin, 106 Mo. 324 — 17 S. W. Rep. 308; Willard v. Masterson, 160 111. 443 — 43 N. E. Rep. 771; Jacobs v. Smith, 96 Mo. 673 — 2 S. W. Rep. 13; Garrett V. Wagner, 125 Mo. 450 — 28 S. W. Rep. 762.) EFFECT OF DEED BY "RELATION. Relates Back to Inception of the Lien. § 423. A sheriff's deed to land sold under execution takes effect as an actual conveyance, not from the date of its de- livery, but from the date of the inception of the original lien 374 VOID JUDICIAL AND EXECUTION SALES. which has been merged in the sale under execution. Where judgments are themselves general liens upon the defendant's lands the deed takes effect as of the date of such lien, and as a conveyance avoids all intermediate incumbrances or aliena- tions as far as the execution purchaser is concerned. (Greer v. Wintersmith, S3 Ky. 516 — 4 S. W. Rep. 232; Hargraves v. Meneken, 45 Neb. 668 — 63 N. W. Eep. 951; Paxton v. Sterne, 127 lnd. 2S9 — 26 N. E. Rep. 557; Yeazel v. White, 40 Neb. 432 — 5S N. W. Rep. 1020; Merritt v. Richey. 127 lnd. 400 — 27 N. E. Rep. 131; Bank v. Lieuallen, 39 Pac. Rep. 1108; Andrews v. Howard, 6 How. 554 — 3S Am. Dec. 450; Reynolds v. Cobb, 16 Neb. 37S — 19 N. W. Rep. 502; Hibbard v. Smith, 67 Cal. 547 — 4 Pac. Rep. 473; Bank v. Wells, 12 Mo. 361 — 51 Am. Dec. 163; Davidson v. Frew, 3 Dev. 3 — 22 Am. Dec. 708; Sharp v. Baird, 43 Cal. 577; Jackson v. Diekerscn, 15 Johns. 309 — 8 Am. Dec. 236; Hutchings v. Ebeler, 46 Cal. 557; Swift v. Agnes, 33 Wis. 228; Martin v. Martin, 7 Md. 368 — 61 Am. Dec. 364; Parker v. Swan, 1 Humph. 80 — 34 Am. Dec. 619 ; Kingman v. Glover, 3 Rich. 27 — 45 Am. Dec. 756; Wilhelm v. Humphries, 97 lnd. 520; Wright v. Tichenor, 104 lnd. 185.) And if the deed is made upon proceedings in attachment it takes effect from the date of the attachment lien which became merged in the judgment, (Bank v. Lieuallen, 39 Pac. Rep. 1108; Porter v. Pico, 55 Cal. 165; Ensworth v. King, 50 Mo. 477; Bagley v. Ward, 37 Cal. 121.) or in foreclosure of mortgage to the inception of the mortgage lien. (Land Association v. Viera, 48 Cal. 572; De Haven v. Londell, 31 Pa. St. 120; Horn v. Jones, 2S Cal. 194; Champion v. Hinkle, 45 N. J. Eq. 162 — 16 Atl. Rep. 701; Barnard v. Wilson, 74 Cal. 512 — 16 Pac. Rep. 307; Moulton v. Cornish, 61 Hun, 438 — 16 N. Y. Supp. 267.) Sale under Several Executions when One or More Void. § 424. Where the sale is made under several executions, one or more valid and one or more void, the sale is in some -fates nevertheless considered valid, and will support the offi- cer's deed notwithstanding the enumeration of the void writs therein, as such recitation is regarded as mere surplusage, and will not affect the validity of the conveyance, the deed relating to the inception of the lien of judgment whereon the valid writ or writs are founded. (Johnson v. Mining Co., 78 Wi*. 159 — 47 X. W. Rep. 363; Banks v. Evans, 10 S. & M. 35 — 48 Am. Dec. 734; Derrick v. Graves, 16 Wis. EFFECT OF DEED 1JY RELATION. 375 157; Richards v. Allen, 3 E. D. Smith, 406; Brace v. Shaw, L6 1?. Mon. 43.) But a contrary ruling obtains in Indiana where such a sale and deed is held to be altogether void passing no title to the purchaser thereunder. (Ferrier v. Deutehman, 111 Ind. 330—12 N. E. Rep. 497; Brown V. McKay, 16 Ind. 4S4; Hutchens v. Doe, 3 Ind. 528; Clark v. Watson, 3 Ind. 400; Harrison v. Stipp, 8 Blackf. 458.) Chapter VI. Collateral and Direct Impeachment of Judicial and Execution Sales. ANALYSTS. Section 425. Collateral and Direct Attack upon Judicial Proceedings Distinguished — Direct Attack Defined. 426. Instances of Direct Attack. 427. Collateral Attack Denned. 428. Instances of Collateral Attack. 429. Presumptions as to Jurisdiction — Judgments of Courts of General Jurisdiction. 430. Insufficient Service Appearing. 431. Presumption in Case of Constructive Service. 432. Presumption of Jurisdiction as to Inferior Courts. 433. Presumptions as to Proceedings of Probate Courts. 434. When Collateral Impeachment Possible — In Ca.se of Want of Jurisdiction to Render Judgment. 435. By Third Parties. 436. Sale Vacated by Direct Proceeding — When by Motion Must be Within a Reasonable Time. 437. By Suit in Equity. 438. Instances of Execution and Judicial Sales Void Collater- ally — If Jurisdiction is Wanting Sale Void. 439. — ■ — -Sales Founded upon Satisfied Judgments. 440. Land Sold not Embraced in the Petition. 441. ■ Petition for Order or License Fatally Defective. 442. Land Sold not Embraced in the Order or Decree. 443. No Notice of Application for Order of Sale. 444. Sale of Land Located in Another State. 445. Failure of Jurisdiction by Constructive Service. 446. Sales in Foreclosure of Tax Liens. 447. No Additional Bond, Notice of Sale Given or Oath Taken. 448. Execution Sale at Wrong Time or Place. 449. Sales Void Because of Defect in Execution or Its Enforcement. 450. Sales Void Because of Fraud in Judgment or Sale. 451. 'Trial Judge Disqualified from Acting. COLLATERAL AND DIRECT ATTACK DISTINGUISHED. 377 Section 452. Effect of Statute of Limitations on Judicial Sale -Stat- ute Does not Apply to Void Sales. 453. Essentials to Availability of Plea of Statute. 454. Statutes Declaring the Effect of Judicial Proceedings — Purchase by Disqualified Purchaser. 455. Sale not Void when Certain Things Appear. 456. Other Defects and Irregularities. COLLATERAL AND DIRECT ATTACK UPON JUDI- CIAL PROCEEDINGS DISTINGUISHED. Direct Attack Defined. § 425. The collateral impeachment of a judgment or other judicial proceeding is an assault thereon for the contem- plated object of their nullification, evasion or avoidance in so far as their force or effect are concerned, in a manner not in accordance with the procedure provided by law, for the accomplishment of such purpose. The chief element of dis- tinction between a direct and a collateral attack upon a judicial proceeding, be it judgment, sale or otherwise, is that in the former the force and effect thereof is sought to be evaded defeated or corrected according to a procedure pre- -rribed'bv law, while the effort to accomplish the same result in some other proceeding, suit or action, is a collateral attack. The former is prosecuted with success when the infirmity com- plained of is shown, while the latter can only be successful in case of a total want of power to do what has been done and the force and effect of which is sought to be evaded or de- Manifestly it is immaterial in what form the proceedings in the attack upon the judgment or other proceedings are pre- sented" if their review is sought, or relief therefrom is at- tempted to be obtained pursuant to the provisions of law m this regard, the attack is a direct one, as contradistinguished from a collateral assault. Obviously, any proceeding prose- cuted to annul, modify or correct a judicial proceeding is a direct proceeding as a matter of necessity. (Pope v. Harrison. 16 Lea. 82; Thompson v. McCorkle 136 Ind 484- 34 NE. Rep. 813: Cnlly v. Shirk. 131 ind. 76-30 N. E. Rep 882; Harman v. Moore, 112 Ind. 221 ; 13 N. E. Rep. 718; Buchanan v. Bilger, 64 Tex. 589.) 378 VOID JUDICIAL AND EXECUTION SALES. Instances of Direct Attack. § 426. A suit in chancery brought by one defendant to cancel a judgment rendered against himself and co-defendant, based upon a verdict against the co-defendant only, is con- sidered as a direct attack. (Dady v. Brown, 76 Iowa, 528 — 41 X. W. Rep. 209.) And an attempt to vacate a judgment upon motion inter- posed in the manner and within the time authorized by statute, (Reinhart v. Lugo, 86 Cal. 395 — 24 Pac. Rep. 10S9; People v. Green, 74 Cal. 400—16 Pac. Rep. 197; Volland v. Wilcox, 17 Xeb. 46 — 22 N. W. Rep. 71; People v. Mullen, 65 Cal. 396 — 4 Pac. Rep. 348.) or a suit prosecuted by a purchaser at a sheriff's sale to re- strain the officer from executing a deed to one who had bought at a sale founded on his own judgment, void for want of service, as disclosed by the record therein, (Penrose v. McKenzie, 116 Ind. 35 — 18 X. E. Rep. 3S4.) or a proceeding by motion to set aside a judgment upon the ground that there really had been no service though the record shows judgment to have been rendered upon proper service, and such motion is filed subsequent to the time limited by statute, (Hanson v. Hanson, 20 Pac. Rep. 736.) or an attack upon a judgment by the judgment defendant showing the actual want of notice and fraud in the procure- ment of the judgment, are all direct attacks. (Thompson v. McCorkle, 136 Ind. 484 — 34 N. E. Rep. 813.) A suit by a ward to recover land sold under a defective petition, and for the guardian's failure to give a sale bond as required by the statute, (Davidson v. Bates, 111 Ind. 391 — 12 X. E. Rep. 6^7; McKeever v. Ball, 71 Ind. 398.) or a suit by the heirs to vacate a judgment against their an- cestor, in the same court, (Buchanan v. Bilger, 64 Tex. 5S9.) and a motion by a purchaser to vacate a prior judgment against his vendor because the same is void by reason of in- sufficient constructive service of process, (People v. Mullen, 65 Cal. 396 — 4 Pac. Rep. 348.) COLLATERAL AND DIRECT ATTACK DISTINGUISHED. 379 as well as a motion by a non-resident judgment debtor to set aside a judgment rendered against him upon published process where both the order for publication and a sufficient affidavit warranting the order are wanting, (People v. Pearson, 76 Cal. 400— IS Pac. Rep. 424.) and a purchaser's refusal at a succession sale to comply with the terms of his bid, where he attacks the order of sale as void upon its face, Succession of Dumestre, 40 La. Ann. 571 — 4 So. Rep. 328.) are all direct attacks upon such proceedings. Collateral Attack Defined. § 427. As a general rule a judgment or other judicial pro- ceeding is void collaterally only when, at the time the pro- ceedings were had, there was a want of jurisdiction over the subject-matter of the action, or of the person of the defendant, and such inherent infirmity is apparent from an inspection of the record, or the tribunal wherein the proceedings were had was not legally organized. If one or more of such radical defects incumber the record, the judgment, order or decree, and all rights and titles resting thereon are complete nullities, no matter if the purchaser or holder thereof is one for value and without notice or not. Nor is it a matter of the slightest consequence that the proceedings occurred in a court of the highest dignity in the commonwealth, for they are as destitute of legal efficacy as if they had taken place in the most inferior court known to the law, the proceedings are coram non judice and void. It is a fundamental rule that a judicial record must be tried by an inspection thereof; (Hersey v. Walsh. 38 Minn. 521 — 3S N. W. Rep. 613; Kingman v. Paulsen, 126 Ind. 507 — 26 N. E. Rep. 393; Trust Co. v. Lumber Co.. 92 Tenn. 126 — 21 S. W. Rep. 329: Hughes v. Cummings, 7 Colo. 203 — 2 Pae. Rep. 289; Phillips v. Lewis, 109 Tnd. 62 — 9 N". E. Rep. 395; Ex parte Bergman, 3 Wyo. 396 — 26 Pac Rep. 914; Kingsbury v. Powers. 131 111. 1S2 — 22 N. E. Rep. 479; Seott v. Crews. 72 Mo. 261; Leedom v. Lombaert, 80 Pa. St. 381; Welborn v. People. 76 111. 516; Byram v. McDowell, 15 Lea, 5S1.) and accordingly, when it is attempted to deprive such record of its force or effect by overturning or impeaching it by the 380 VOID JUDICIAL AND EXECUTION SALES. use of evidence extraneous to the same and in a proceeding not by law provided, such an assault is collateral. (Morrill v. Morrill, 20 Ore. 96 — 25 Pac. Rep. 362; Browning v. Smith, 139 Ind. 280 — 37 N. E. Rep. 540; People v. Mullen, 65 Cal. 396 — 4 Pac. Rep. 348; Cicero Township v. Picken, 122 Ind. 2G0 — 23 N. E. Rep. 763; Harman v. Moore, 112 Ind. 221 — 13 N. E. Rep. 718; Littleton v. Smith, 119 Ind. 230 — 21 N. E. Rep. 886.) Instances of Collateral Attack. § 428. A direct proceeding instituted for the purpose of impeaching the title of a purchaser other than a party to the original action, for intervening errors, is clearly as collateral as if the action were at law in ejectment for the recovery of the land. (Swift v. Yanaway, 153 111. 197 — 38 N. E. Rep. 589; Hedges v. Mace, 72 111. 472; Moore v. Neil, 39 111. 256.) If the court under whose judgment or decree the land is sold had jurisdiction of the subject-matter and the parties, collateral attack upon the sale will not lie for mere errors or irregularities, for until reversed on appeal, the judgment or decree confers the authority to sell and transfer the title, not- withstanding it is erroneous. (Lewis v. Morrow, 89 Mo. 174 — 1 S. W. Rep. 93; Swift v. Yanaway, 153 111. 197 — 38 X. E. Rep. 589; Pearse v. Hill, 163 Mass. 493 — 40 N. E. Rep. 765; Cothran v. Knight, 47 S. C. 243 — 25 S. E. Rep. 142; Lee v. Patten, 34 Ela. 149—15 So. Rep. 775.) But if on the contrary the record affirmatively shows that the court was without jurisdiction to proceed in the particular action in which the judgment was pronounced, and there is no direct finding of jurisdiction in the judgment, it may be contradicted or impeached collaterally, despite the rule that the judgment of a court of general jurisdiction imports ab- solute verity. (Jewett v. Land Co., 64 Minn. 531 — 67 N. W. Rep. 639; Meyer v. Kuhn, 25 U. S. App. 174 — 65 Fed. Rep. 705; Barber v. Morris, 37 Minn. 194—33 N. W. Rep. 559; Clark v. Thompson, 47 111. 25 — 95 Am. Dec. 457.) Notwithstanding a third person having acquired interests in the property without notice of the fraudulent character of the judgment is permitted to assail the same and the pro- ceedings thereunder for fraud in a collateral proceeding, PRESUMPTIONS AS TO JURISDICTION. :;s ' (Dunlap v. Byers, 110 Mich. 109-67 X. W. Rep. .0.7: Building Association v. Harden, 92 Va. 201 23 S. E. Rep. 285.) either a party nor his privies can obtain relief upon such grounds in a collateral action by bringing forward matters extraneous to the record. ^ • , , .. i t i iao •' \ E Reo 899: Steel Works fComeevs v. Emerick, L34 1ml. L48 ... w. i- l JSX-, 66 Mich. 489-33 N. W. Bep. ^erman; Moore U2 Ind. 221-13 N.E. Rep. 718; Col v. Baer 4 tad. 875- -M N * Rep. 920; Trust Co. v. Luxnher Co., 92 Tenn. 126- ■ ^- '; '— -o f ,■ Wolf 70 III 76; Swift v. Yanaway, 153 111. 197 3b in. Barnet v. Wolf, ro 1 . w Botsford Rep. 5S9; Lantz v. Maffett, iw ina. v. O'Conner, 57 111. 72; Finch v. Sink. 46 111. 169.) PRESUMPTIONS AS TO JURISDICTION. Judgments of Courts of General Jurisdiction. 8 429 Upon collateral attack the presumption of juris- diction prevails in case the record is silent, in an adjudication t an ordinary proceeding of a domestic court ot -or, of general jurisdiction. Hence, if there is no affirmative show L of service of summons or appearance, it will be presumed on collateral inquiry that the rendition of the judgment was preceded bv the acquisition of jurisdiction over the person of the defendant, when the court wherein the proceedings are taken is one of general and not limited or inferior juris- diction This presumption prevails until want of jurisdiction is affirmatively shown, or unless it affirmatively appears upon the face of the record that jurisdiction is wanting. (Williams v. Haynes, 77 Tex. 283-!, S. ^J^^^Z^ Brown, 87 Ala. 533-6 So. Rep. 354; Bank v. 1- - °£ "« 07 Pac Rep. 705; Robinson v. Allison. 97 Ala. 596-12 So h. ; . L^onv Teel 82 Va. 690; Jones v. Edwards, 7s Ky. 6; Gudford v. LoT^Tes ™; Wingal* v. Haywood, 40 X. H. 437; Pettus v Mc- cLnahan. 52 Ala. 55; Crane v. Kinnner, 77 Ind. 215; Morgan V. Bur- nett, 18 Ohio, 535.) The record of a cause in such a court being silent as to the manner of acquiring jurisdiction it is conclusively presumed upon collateral attack that jurisdiction has vested, and ex- trinsic evidence is inadmissible to rebut such presumption. (Davis v. Hudson. 29 Minn. 27-1, X. W. ^™--™£££ v West. 100 Mo. 309-13 S. W. Rep. 674; Suns v. Cay. 109 Ind. oOl 382 YOID JUDICIAL AND EXECUTION SALES. 9 N. E. Eep. 120; St. Louis v. Lanigan, 97 Mo. 175 — 10 S. W. Rep. 475; Bruckman v. Taussig, 7 Colo. 501 — 5 Pac. Rep. 152; Schad v. Sharp, 95 Mo. 573 — 8 S. W. Rep. 549; Tennell v. Breedlove, 54 Tex. 540; Hill v. Woodward, 78 Va. 765; Coit v. Haven, 30 Conn. 190 — 79 Am. Dee. 244; Mallett v. Mining Co., 1 New 188 — 90 Am. Dee. 484; Kenney V. finer. 13 111. 432 — 54 Am. Dec. 439; Murchison v. White, 54 Tex. 7S; Pope v. Harrison, 16 Lea, 82; Swearengen v. Gulick, 67 111. 208; Fitch v. Boyer, 51 Tex. 336.) Insufficient Service Appearing. § 430. In case of collateral attack upon a judgment and proceedings thereunder where the service appearing in the record of a superior court is made in a certain manner and this is not sufficient to confer jurisdiction, there mil be no presumption that some other and valid service was made upon the defendant in some other way, the presumption in support of the recital of jurisdiction being consistent with the service shown by the record to have been made, and not against it. (Law v. Grommes, 158 111. 492 — 41 N. E. Rep. 10S0; Barber v. Morris. 37 Minn. 194 — 33 X. W. Rep. 559; Mickel v. Hicks, 19 Kan. 578 — 27 Am. Rep. 161; Clark v. Thompson. 47 111. 25 — 95 Am. Dec. 457; Bots- ford v. O'Connor. 57 111. 72.) Presumption in Crse of Constructive Service. § 431. The federal supreme court held a judgment void collaterall v which was rendered against an infant upon service by publication, the statute in such case requiring that the court be satisfied by affidavit of the non-residence as well as to a cause of action, but the record, while showing an order for publication and making of the publiction, was silent as to the manner in which the court became satisfied either of the non-residence or the existence of a cause of action. (Galpin v. Page, IS Wall. 350.) And a substantially similar strict rule obtains in some states where it is held that whenever a mode of acquiring jurisdiction not in accordance with the general course of the common law has been prescribed by statute, such mode must be strictly pursued and the facts necessary to confer juris- diction must affirmatively appear upon the face of the record, as no presumptions are indulged in to sustain the judgment. (Real Estate Co. v. Hendrix, 28 Ore. 4S5 — 42 Pac. Rep. 514; Mc- Cracken v. Flanagan, 127 X. Y. 493 — 28 X. E. Rep. 385 j Harness v. PBESTJMPTIONS AS TO JURISDICTION. 583 Cravens, 126 Mo. 233 — 28 S. W. Rep. 971: Carnes v. Mitchell. 82 Iowa, poi — 4S X. W. Pep. 941; Bradley v. Jamison, 46 Iowa, 68; Palmer v. McMaster, 8 Mont. 1S6 — 19 Pac. Pep. 5S5.) Presumption of Jurisdiction as to Inferior Courts. § 432. It is a settled principle of jurisprudence that where the record of an inferior court does not affirmatively show that jurisdiction has been acquired, by setting forth the jurisdictional facts which the law directs shall be shown, the proceedings, including the sale thereunder, are coram non jifdicr and void, and subject to impeachment in a collateral proceeding. (Eltzroth v. Ryan, S9 Cal. 135 — 26 Pac. Rep. 647; Levy v. Lumber Co., 51 Ark. 317 — 11 S. W. Rep. 2S4; Smith v. Clausmeier. 136 Ind. 105 — 35 N. E. Rep. 904; Leonard v. Sparks, 117 Mo. 103 — 22 S. W. Rep. S99 ; Fahey v. Mottu, 67 Md. 250 — 10 Atl. Rep. 68 ; Moore v. Hoskins, 66 Miss. 49G — 6 So. Rep. 500; Emery v. Royal, 117 Ind. 299 — 20 X. E. Rep. 150; Bolivar v. Coleman, 71 Miss. 832 — 15 So. Rep. 107; Jones v. Hunt, 90 Wis. 199 — 63 X. W. Rep. 81; Agar v. Tibbits, 56 Hun, 272 — 9 X. Y. Supp. 591; Newman v. Manning, 89 Ind. 422; Thomas v. Robinson, 3 Wend. 267; Visart v. Bush, 46 Ark. 153; Case V. Hannahs, 2 Kan. 490; Rossiter v. Peck, 3 Gray, 538; Wight v. Warner, 1 Doug. 384; Ex parte Kearney, 55 Cal. 212; Goulding v. Clark, 34 X. H. 148.) But when jurisdiction has once been shown like presump- tions obtain as to the regularity of its exercise as are ac- corded to judgments and proceedings of courts of general and superior jurisdiction. (Bewley v. Graves. 17 Ore. 274 — 20 Pac. Rep. 322: Pursley v. Hayes. 22 Iowa, 11 —92 Am. Dec. 350; Turner v. Conkey. 132 Ind. 24S — 31 X. E. Rep. 777; Heck v. Martin, 75 Tex. 469 — 13 S. W. Rep. 51; Tucker v. Harris. 13 Ga. 1 — 58 Am. Dec. 4S8; Fowler v. Jenkins, 2S Pa. St. 17G — 81 Am. Dec. 427; Railway Co. v. Chamberlain. 84 111. 333; Corn- stock v. Crawford, 3 Wall. 396; Board v. Markel, 46 Ind. 9(3; Little v. Sinnet. 7 Iowa. 324; Visart v. Bush, 46 Ark. 153; Cauldwell v. Curry, 93 Ind. 303; Leonard v. Sparks, 117 Mo. 103—22 S. W. Rep. 899; Smith v. Clausmeier, 136 Ind. 105 — 35 N. E. Rep. 904; Levy v. Lumber Co., 51 Ark. 317 — 11 S. W. Rep. 284.) Presumptions as to Proceedings of Probate Courts. § 433. Courts of probate are in a few states regarded as of special and limited and < inferior jurisdiction, and where this rule prevails it is incumbent upon him who asserts title under their adjudications and proceedings to show affirma- 384 VOID JUDICIAL AND EXECUTION SALES. tively that all steps essential to confer jurisdiction have been taken, no presumptions in aid of the proceedings being in- dulged. (Ethel v. Nichols, 1 Idaho, 741; Wattela v. Hyde, 9 Conn. 10; In re Hawley, 104 N. Y. 250 — 10 N. E. Rep. 352.) But pursuant to a preponderance of judicial authority these tribunals, by whatever name designated, are considered to be of limited jurisdiction though not inferior courts, and in the lawful exercise of such jurisdiction with which they are invested by law, all presumptions in favor of jurisdiction ap- plicable to courts of general jurisdiction are accorded to them. (Sherwood v. Baker, 105 Mo. 472 — 16 S. W. Rep. 938; Pike v. Chi- cago, 155 111. 656 — 40 N. E. Rep. 567; Masters v. Bienker, 87 Ky. 1 — 7 S. W. Rep. 158; Sullivan v. Rapp, 86 Ala. 433 — 5 So. Rep. 746; Davis v. Hudson, 29 Minn. 27 — 11 N. W. Rep. 136; People v. Seelye, 146 111. 189 — 32 N. E. Rep. 458; Currie v. Franklin, 51 Ark. 33S — 11 S. W. Rep. 477; Winter v. London, 99 Ala. 263 — 12 So. Rep. 438; Succession of Bellande, 41 La. Ann. 491 — 6 So. Rep. 505; Mills v. Herndon, 77 Tex. 89 — 13 S. W. Rep. 854; Matson v. Swensen, 5 S. Dak. 191 — 58 N. W. Rep. 570; Waters v. Stickney, 12 Allen, 1 — 90 Am. Dec. 122; Kimball v. Fisk, 39 N. H. 110 — 75 Am. Dec. 213; Bush v. Lindsay, 24 Ga. 245 — 71 Am. Dec. 117; Snyder's Appeal, 36 Pa. St. 166 — 78 Am. Dec. 372; Bostwick v. Skinner. 80 111. 147; Sever v. Rus- sell, 4 Cush. 513 — 50 Am. Dec. 811; Camden v. Plain, 91 Mo. 117 — 4 S. W. Rep. 86; Kelly v. Morell, 29 Fed. Rep. 736; Reid v. Morton, 119 111. 118 — 6 N. E. Rep. 414.) WHEN COLLATERAL IMPEACHMENT PERMIS- SIBLE. In Case of Want of Jurisdiction to Render Judgment. § 434. It is a settled principle of jurisprudence that if jurisdiction over the subject-matter or person is wanting, and the record discloses this infirmity, the proceedings are void in a collateral sense, conferring no rights upon any one and depriving no one of title, right or interest. Being nullities such proceedings can be no justification to him who seeks their enforcement or who asserts either right, title or authority thereunder, and when collaterally called in question must fall to the ground. The acts of a court done in the absence of authority, on principle, can be of no higher efficacy than the unauthorized acts of any other person or tribunal, and when WHEN COLLATERAL IMPEACHMENT PERMISSIBLE. 385 apparent from the record must fall as void. But on the other hand, when jurisdiction has vested, or when the record does not disclose the want of it, any irregularity in the action of the court or functionary, no matter how gross, will not render the proceedings void collaterally. (Morrill v. Morrill, 20 Ore. 96 — 25 Pac. Rep. 362; Town of Wayne v. Caldwell, 1 S. Dak. 483 — 47 N. W. Rep. 547; Wall v. Wall. 123 Pa. St. 545 — 16 Atl. Rep. 598; Dyer v. Leach, 91 Cal. 191— L7 Pac. Rep. 598; Kingman v. Paulson, 126 Ind. 507 — 26 N. E. Rep. "93; Smith v. Hess, 91 Ind. 424; Manson v. Duncanson, 166 U. S. 533 — 17 Sap. Ct. Rep. 647.) By Third Parties. § 435. According to a general rule parties and their privies are precluded from impeaching judicial proceedings for fraud, when the record does not affirmatively show it, yet this rule does not operate against a third party who may avail himself of the privilege of collaterally impeaching such judgment and proceedings, when the same were obtained by fraud and collusion of the parties to it for the purpose of defrauding him, and this because he has no standing to appeal from the judgment or require its vacation or reversal, such a judgment or decree, is as to such third party coram nan judice and void. (Sager v. Mead, 164 Pa. St. 125 — 30 Atl. Rep. 284; Morrill v. Morrill, 20 Ore. 96 — 25 Pac. Rep. 362; Ogle v. Baker, 137 Pa. St. 378 — 20 Atl. Rep. 998.) And on the plainest of elementary principles, no one can be concluded by a judicial sale under proceedings to which he is not a party; (Telegraph Co. v. Trust Co., 147 U. S. 431 — 13 Sup. Ct. Rep. 396.) but no issue as to the character of a judicial sale can be raised by one who, neither before nor after the sale, had any interest in the property, as his interests must have boon affected in order to give him a standing to question the sale. (In re Von Hoven's Succession, 48 La. Ann. 620 — 19 So. Rep. 766.) If the interest of a third party in the property be con- tingent, or an executory devise, it is bound by judicial pro- ceedings affecting the land, in case the court has before it all 25 386 VOID JUDICIAL AND EXECUTION SALES. parties that can be brought before it and in whom the present estate of inheritance is vested, in the absence of fraud. (Miller v. Railway Co., 132 U. S. 662 — 10 Sup. Ct. Rep. 206.) I The property of a third person sold under the coercive process of the law against one who is not the owner will not pass to the purchaser though it may have been levied upon while in the possession of the judgment debtor. The pur- chaser not only acquires no title to the same, but if he as- sumes to exercise dominion over it, or deal with it as the owner by converting the same to his own use, he will be liable in conversion. The principle is fundamental that the sale of property under an execution passes only the right or title of the judgment debtor, and if he has none then as a necessary consequence none will be passed by the sale. (Heberling v. Japger, 47 Minn. 70 — 49 X. W. Rep. 396; Jamison v. Hendricks, 2 Blackf. 94 — IS Am. Dec. 131; Case v. Hart, 11 Ohio, 364 — 38 Am. Dec. 735; Coombs v. Gordon. 59 Me. Ill; Bryant v. Whitcher, 52 N. II. 158; Champney v. Smith, 15 Gray, 512; Lewark v. Carter, 117 Ind. 206 — 20 N. E. Rep. 119; Bank v. Bank, 45 Mo. 513 — 100 Am. Dec. 388.) SALE VACATED BY DIRECT PROCEEDING. "When by Motion Must be Within a Seasonable Time. § 436. Manifestly, the lapse of time ordinarily can add nothing to the validity of an execution or judicial sale which is void, but a different question arises where such sale is merely voidable and not void. Accordingly, it is generally considered that a defendant seeking to have the sale of his property under execution vacated for error or irregularity must interpose his motion to that effect within a reasonable time after the sale. In the states where sales under execution are not required to be confirmed by the court, and this in- cludes a large majority of them, and where the right of re- demption is a provision of statute, such a reasonable time is limited to the expiration of the period of redemption, and if not moved against before that time the right to urge ob- jections to the sale is usually waived. (Power v. Larabee, 3 N. Dak. 502 — 57 N. W. Rep. 789; Lurton v. Rodgers, 139 111. 554 — 29 N. E. Rep. 866; Fletcher v. McGill, 110 Ind. .395 — 10 N. E. Rep. 651; Abbott v. Peck, 35 Minn. 499 — 29 N. W. SALE VACATED BY DIRECT PROCEEDING. 387 Eep. 194; Raymond v. Pauli, 21 Wis. 531; Bank v. Fair Association, 2 S. Dak. 145 — 48 X. W. Rep. 852; Raymond v. Holburn, 23 Wis. 57; Griswold \. Stoughton, :.' Ore. 61; Vigoureux v. Murphy, 54 Cal. 346; Love v. Cherry, 24 Iowa, 210.) Where execution sales are required by statute to be con- firmed, the same rule then applies to them as is applicable to judicial sales, namely, that in the absence of fraud, the order of confirmation cures all defects and irregularities in the sale, and the purchaser acquires all the title of the judg- ment debtor. Objections to the sale for errors and irregu- larities not of a jurisdictional nature must be urged before confirmation or else it is too late. (Watson v. Tromble, 33 Neb. 450 — 50 X. W. Rep. 331; Neligh v. Keene, 16 Neb. 407 — 20 N. W. Rep. 277: Wilcox v. Raben, 25 Neb. 368 X. W. Rep. 844; Real Estate Co. v. Hendrix, 2S Ore. 485 — 42 Pac. Rep. 514.) It has been held that where the execution plaintiff himself is the purchaser, the court may vacate the sale even after the expiration of the period of redemption where a showing is made sufficient to excuse the delay, as such a purchaser is chargeable with notice of .all errors and irregularities in the sale. (Branch v. Foust, 130 Ind. 538 — 30 N. E. Rep. 631; Fletcher v. Mc- Gill, 110 Ind. 395 — 10 N. E. Rep. 651; Carnaban v. Yerkes, 87 Ind. 62; Land Co. v. Walker, 78 Iowa, 476 — 43 N. W. Rep. 294; Richey v. Merritt, 108 Ind. 347 — 9 N. E. Rep. 368; Bean v. Holiendorfer, 2 S. W. Rep. 556.) By Suit in Equity. § 437. If the period of redemption has gone by and no motion was interposed to set aside the sale for irregularities, the defendant may yet defeat the sale by a suit in equity in- stituted for the purpose of being permitted to redeem if a sufficient excuse is shown for his delay in this regard. (Tice v. Russell, 43 Minn. 66 — 44 N. W. Rep. 886; Campbell v. Leonard, 132 111. 232 — 24 N. E. Rep. 65; Graffam v. Burgess, 117 U. S. 180 — 6 Sup. Ct. Rep. 686; Power v. Larabee, 3 N. Dak. 502 — 57 X. W. Rep. 789.) Irregularities of sufficient gravity to warrant the court in vacating the sale may be cured by acquiescence on the part of the judgment defendant, and he will thereafter not be heard in opposition to the sale; 388 VOID JUDICIAL AND EXECUTION SALES. (Fletcher v. McGill, 110 Ind. 395 — 10 N. E. Rep. 651; Tooley v. Gridley, 3 S. & M. 493 — 41 Am. Dec. 628; Maple v. Kusart, 53 Pa. St. 348 — 91 Am. Dee. 214; Crawford v. Ginn, 35 Iowa, 543; Rowe v. Major. 92 Ind. 206; McDonnell v. People, 71 111. 481; Meehan v. Edwards, 92 Ky. 574 — 18 S. W. Rep. 519.) yet where there is gross inadequacy of price coupled with fraud or material irregularity, sales have been vacated in equity, notwithstanding the application was made subsequent to the expiration of the statutory period of redemption, if the applicant is not estopped by his own laches. (Ponder v. Cheeves, 90 Ala. 117 — 7 So. Rep. 512; Young v. Schroeder, 10 Utah, 155 — 37 Pac. Rep. 252; Parker v. Shannon, 137 111. 376 — 27 N. E. Rep. 525; Graffam v. Burgess, 117 U. S. 180 — 6 Sup. Ct. Rep. 686; Pate v. Hinson, 104 Ala. 599 — 16 So. Rep. 527.) Ordinarily an application to set aside an execution sale on account of irregularities in the issuance of the writ, as because issued upon a dormant judgment, should be promptly made, ,and in the court out of which the writ emanated. In the absence of a showing of accident, surprise, mistake or fraud, or some circumstance affecting the sale itself, equity will not interpose to vacate a sale. (Gardner v. Railway Co., 102 Ala. 635 — 15 So. Rep. 271; McCall v. Rickarby, 85 Ala. 152 — 4 So. Rep. 414; Bank v. Spencer, 18 N. Y. 150.) INSTANCES OF EXECUTION AND JUDICIAL SALES VOID COLLATERALLY. If Jurisdiction is Wanting Sale Void. § 438. If the court is one of competent jurisdiction and had regularly acquired jurisdiction to render the judgment, and the sale has taken place under a valid execution issued thereon, the sale by the authorized officer thereunder can not be void by reason of any irregularity that may occur in the conduct of the sale. But where there was a lack of juris- diction, either of the subject-matter or person of the defend- ant, and this is apparent upon the face of the record, the pro- ceedings of sale are void collaterally. (Trust Co. v. Railway Co., 139 U. S. 137 — 11 Sup. Ct. Rep. 512; Graff v. Louis, 71 Fed. Rep. 591; Botsford v. O'Conner, 57 111. 72; Alexander v. Mortgage Co.. 47 Fed. Rep. 131; Miller v. Handy. 40 111. 448; State v. Wear, 46 S. W. Rep. 1099; Bank v. Hanna, 12 Ind. App. 240 INSTANCES OF SALES VOID COLLATERALLY. 389 — 39 N. E. Rep. 1054; Pearse v. Hill, 163 Mass. 493 — 40 X. E. Rep. 765; Railway Co. v. Harmless, 124 Ind. 25 — 24 N. E. Rep. 369.) Even when the court is one of general jurisdiction and finds that it has jurisdiction, if the record therein sufficiently shows the contrary and therefore impeaches the finding, a sale under execution upon such judgment can be questioned in a collateral proceeding, notwithstanding the presumption accorded such judgments, the finding itself being impeached by the affirmative disclosures in the record. (Goodkind v. Bartlett, 153 111. 419 — 38 X. E. Rep. 1045; Swift V. Yanaway. 153 111. 197 — 38 N. E. Rep. 589; Law v. Grommes, 15S 111. 492 — 41 X. E. Rep. 10S0; Barber v. Morris, 37 Minn. 194 — 33 N. W. Rep. 559; Stanley v. Stanley. 35 S. C. 94 — 14 S. E. Rep. 675; Osgood v. Blackinore, 59 111. 261.) A sale under execution issued upon a judgment by con- fession in a county court, where there has been non-compli- ance with the provisions of the statute in obtaining the judg- ment is void, (Howell v. Mfg. Co.. 32 Neb. 627 — 49 X. W. Rep. 704.) and so is a judicial sale made in violation of an injunction, (Stevens v. Bank, 144 N. Y. 50 — 39 X. E. Rep. 68.) as well as an execution sale based upon a simple money judg- ment, execution issuing subsequent to the death of the sole defendant, against his executrix. (Bynum v. Govan. 29 S. W. Rep. 1119.) And a sale made under an execution emanating from a judgment of a justice's court which was not docketed until after it had been barred by the statute of limitations. (Cowen v. Withrow, 114 X. C. 5S8 — 19 S. E. Rep. 645.) Sales Founded upon Satisfied Judgments. § 439. Upon the plainest of elementary principles and in accordance with reason, a sale under an execution based upon a satisfied judgment, whether satisfaction is shown by the record or not, is absolutely void and may be impeached in a collateral action. There being no judgment, by reason of its payment, there is no warrant in law for the issuance of any writ, and the purchaser thereunder can acquire no rights upon indisputable and universal principles. 390 VOID JUDICIAL AND EXECUTION RALES. (Boos v. Morgan, 130 Ind. 305 — 30 X. E. Rep. 141; Soukup v. In- vestment Co., S4 Iowa. 44S — 51 X. W. Rep. 167; Shafer v. McCrackin, 90 Iowa, 578 — 58 X. W. Rep. 910: Bullard v. McArdle, 98 Cal. 355 — 33 Pac. Rep. 193; Griffin v. Lacourse, 31 Fla. 125 — 12 So. Rep. 665; Benton v. Hatch. 122 X. Y. 320 — 25 X. E. Rep. 4S6; Chapin v. Mc- Laren, 105 Ind. 563 — 5 X. E. Rep. 6S8; Terry V. O'Xeal, 71 Tex. 592 — 9 S. W. Rep. 673; Huber v. Pickler, 94 Mo. 3S2 — 7 S. W. Rep. 427.) Land Sold not Embraced in the Petition. § 440. In Kentucky, Massachusetts and California it is held that description of the property sought to be sold in a judicial sale must be contained in the petition in order to confer jurisdiction to order the sale, (Blaekwell v. Townsend, 91 Ky. 609 — 16 S. W. Rep. 587; Yerry V. McClellan, 6 Gray, 535 — 66 Am. Dee, 423; Townsend v. Gordon, 19 Cal. 188.) while in Missouri such a defect did not make the sale void collaterally after confirmation and deed reciting the order of sale, confirmation and appraisement. (Bray v. Adams, 114 Mo. 4S6 — 21 S. W. Rep. 853.) Where the statute required that the petition of the ad- ministrator to sell lands of the estate shall describe all of the lands owned by the decedent as well as the value and con- dition of each description, a sale founded upon a petition wherein the provision for description was met by a reference to the inventory describing six parcels, two of which being void for uncertainty, though the property sold was correctly described, the sale was held void collaterally because all the tracts were not properly described. (Wilson v. Hastings, 66 Cal. 243 — 5 Pac. Rep. 702.) Petition for Order or License Fatally Defective. § 441. In some states probate sales of real estate, though made in the general course of administration, are considered as distinct and independent proceedings, of which the petition is the commencement and the order of sale the judgment, and the jurisdiction of the court is purely statutory, being only conferred upon the presentation of a petition disclosing the existence of a state of facts upon which the court is authorized to order a sale. Jurisdiction must affirmatively appear from the record and will not be presumed from the order of sale, and if the petition fails to disclose the essential jurisdictional INSTANCES OF SALES VOID COLLATERALLY. 391 facts, such as an averment that there are debts, the decree or order and sale are void and subject to collateral impeachment. (Cotton v. Holloway, 96 Ala. 544— 12 So. Rep. 172; Lyons v. .Mr- Curdy, 90 Ala. 497 — 8 So. Rep. 52; Wright v. Edwards, 10 Ore. 29S; Kobertson v. Bradford, 70 Ala. 385; Tyson v. Brown, 64 Ala. 244.) But in Minnesota it is held that the administration of the estate of a decedent is but one indivisible judicial proceeding from the appointment to the discharge of the administrator, and that the petition to sell is not a separate and independent proceeding or action, but simply a proceeding in the nature of a motion in a pending cause, and manifestly no want of either form or substance is sufficient to nullify the sale, as jurisdiction is not dependent upon the sufficiency of the aver- ments of the petition to sell, and a sale under an order which is based upon a petition thus defective or wholly wanting, can not, on principle, be collaterally attacked, if all of the essen- tials of the curative statute exist. (Culver v. Hardenbaugh, 37 Minn. 225 — 33 N T . W. Rep. 792; Rum- rill v. Bank, 2S Minn. 202 — 9 N. W. Rep. 731.) In a case in Alabama the petition of the administrator to sell land disclosed the existence of a will but did not aver that it contained no power of sale; and if it did contain such power, by statute, the sale must be made pursuant to it; the sale made under the order of the court upon this petition is void. (Wilson v. Holt, 83 Ala. 528 — 3 So. Rep. 321.) So, when by statute a probate court is authorized to order a sale of a decedent's lands after his personal property is ex- hausted, it has been held that a sale made under an order is- sued upon a petition which merely alleges the insufficiency of such personal estate to pay the debts, is void for jurisdictional defect. (Sloan v. Sloan, 25 Fla. 53 — 5 So. Rep. G03; Barchman v. Charlton, 1 Coldw. 381; Hays v. McXcaly. 16 Fla. 409.) A sale by an administrator under an order of the court is void if the order is not. supported by a written petition re- quired by law, the petition occupying a position in such case as a complaint in a suit at law. (Teverbaugh v. Hawkins. 82 Mo. 180; Fineh v. Edmonson, 9 Tex. 504; Corwin v. Merritt, 3 Barb. 341.) 392 VOID JUDICIAL AND EXECUTION SALES. Land Sold not Embraced in the Order or Decree. § 442. A judicial sale of land not embraced in the order or decree of sale is without authority, and though regularly con- firmed by the court, is nevertheless an unconditional nullity. As to the land not included it is a sale without an order and manifestly void. (Melton v. Fitch, 125 Mo. 281 — 28 S. W. Rep. 612 ; Ryan v. Dox, 25 Barb. 440; Collins v. Bali. S2 Tex. 259 — 17 S. W. Rep. 614; Greene v. Holt, 76 Mo. 677 ; Shriver v. Lynn, 2 How. 43 ; Ball v. Collins, 5 S. W. Rep. 622; Evans v. Snyder, 64 Mo. 516.) In Iowa where the notice of application for an order of sale was for one tract of land, and the order to sell, notice of sale, and deed were for a different tract, the sale was con- sidered void for want of jurisdiction to grant the license. (Frazier v. Steenrod, 7 Iowa, 339 — 71 Am. Dec. 447.) No Notice of Application for Order of Sale. § 443. If the proceeding by an administrator or guardian to sell land is considered as in rem the petition to sell confers jurisdiction, and a failure to give the notice prescribed by statute of the application is but an irregularity which will not expose the sale to collateral attack. (Ryan v. Ferguson, 3 Wash. 356 — 28 Pac. Rep. 910; Lyons v. Ham- ner, 84 Ala. 197 — 4 So. Rep. 26; Cantelou v. Whitley, 85 Ala. 247 — 4 So. Rep. 810; Apel v. Kelsey, 47 Ark. 413 — 2 S. W. Rep. 102; Scarf V. Aldrich, 97 Cal. 360 — 32 Pac. Rep. 324; Myers v. McGavock, 39 Neb. 843 — 5S N. W. Rep. 522; Lynch v. Baxter, 4 Tex. 431 — 51 Am. Dec. 735; Oriol v. Herndon, 38 La. Ann. 759; Heath v. Layne, 62 Tex. 686.) But it is otherwise where the proceedings are considered adversary, for then the failure to give the notice required by statute of the application for the order of sale is a jurisdic- tional defect rendering the sale void upon collateral inquiry, notwithstanding its confirmation. (Perry v. Adams, 98 N. C. 167 — 3 S. E. Rep. 729; Railway Co. v. Cook, 43 Kan. 83 — 22 Pac. Rep. 9SS; Johnson v. Cobb, 29 S. C. 372 — 7 S. E. Rep. 601; Hawkins v. Hawkins, 28 Ind. 66; Mickel v. Hicks. 19 Kan. 578 — 27 Am. Rep. 161; Gibbs v. Shaw, 17 Wis. 197 — S4 Am. Dec. 737; Fell v. Young, 63 111. 106; Martin v. Neal, 125 Ind. 547 -25 N. E. Rep. 813; French v. Hoyt, 6 N. H. 370 — 25 Am. Dec. 464; O'Dell v. Rogers, 44 Wis. 172; Fisk v. Kellogg, 3 Ore. 503; Jenkins v. Young, 35 Hun, 569; Doe v. Bowen, 8 Ind. 197; Clark v. Hillis, 134 Ind. 421 — 34 N. E. Rep. 13.) INSTANCES OF SALES VOID COLLATERALLY. 393 So where the statute required a certain number of weeks' notice to be published by an administrator before applying to the court for a license to sell, a notice for a time less than that prescribed by the statute is insufficient to confer juris- diction and the sale under the order thus granted is a nullity. (Townsend v. Tallent, r;:; Cal. 45 — 91 Am. Dec. 617; Mickel v. Hicks, 19 Kan. 573 — 27 Am. Rep. 1G1 ; Gibson v. Roll, 30 ill. 172 — 83 Am. Dec. 181.) Sale of Land Located in Another State. § 414. Upon the fundamental principle of international jurisprudence that the courts of each state or nation have ex- clusive jurisdiction to adjudicate upon the title of lands Id- eated within their territorial borders, the sale of land lying in one state under the order, decree or execution of a court of another state, or a judgment purporting to in anywise affect the title to the same, is absolutely void. (Trust Co. v. Telegraph Co., 55 Conn. 334 — 11 All. Rep. 1S4; Wil- kinson v. Leland, 2 Pet. 627; Carpenter v. Strange, 141 U. S. S7 — 11 Sup. Ct. Rep. 960; Lindley v. Oreilly, 50 X. J. L. 636 — 15 Atl. Rep. 379; Davis v. Deadly, 7 C. E. Green. 115; Public Works v. Columbia College. 17 Wall. 521; Nelson v. Potter, 50 N. J. L. 324 — 15 Atl. Rep. 375.) Failure of Jurisdiction by Constructive Service. § 445. A personal judgment for money against a non-resi- dent on constructive service of process only and without vol- untary appearance being utterly void, it creates no lien upon the defendant's lands and a, sale under execution founded upon such judgment is void and subject to collateral im- peachment. (Pennoyer v. Neff, 95 U. S. 714; Fowler v. Lewis, 36 W. Va. 112 — 14 S. E. Pep. 447: Davis v. Walkelee, 156 U. S. 6S0— -15 Sup. Ct. Rep. 555; McCracken v. Flanagan, 141 N. Y. 174 — 35 X. E. Rep. 10.) And if the defendant's property is proceeded against it must lie attached and thus brought within the jurisdiction of the court, before the publication of the notice or else the sab- is a nullity. (Real Estate Co. v. Hendrix. 28 Ore. 4S5 — 42 Pac. Rep. 514.) In some states the seizure of the property of a non-resident defendant by attachment confers jurisdiction and a failure to give the notice prescribed by statute is not fatal to the sale, 394 VOID JUDICIAL AND EXECUTION SALES. (Craig v. Fraser. 73 Ga. 246: Paine v. Moreland. 15 Ohio, 435 — 45 Am. Dec. 585; McDonald v. Simcox, 98 Pa. St. 619; Needham v. Wilson. 47 Fed. Rep. 97; Bray v. McClury, 55 Mo. 128; Cochran v. Loring, 17 Ohio, 409; Hardin v. Lee, 51 Mo. 241; Johnson v. Gage, 57 Mo. 160; Kane v. MeCowan, 55 Mo. 1S1.) but by the weight of authority supported by principle the published notice after seizure is essential to confer jurisdiction and its omission renders the sale void. (Barber v. Mori is. 37 Minn. 194 — 33 N. W. Rep. 559; Douglass v. Insurance Co., 13S X. Y. 209 — 33 X. E. Rep. 938; Mining Co. v. Mining Co., 12 Colo. 46—20 Pac. Rep. 771; Wescott v. Archer, 12 Xeb. 345 — 11 X. W. Rep. 491; Cumniings v. Tabor, 61 Wis. 185 — 21 X. W. Rep. 72; Woolridge v. Monteuse, 27 La. Ann. 79; Bell v. Olmstead, 18 Wis. 69; Clark v. Bryan, 16 Md. 171; Edwards v. Toomer, 14 S. & M. 75; Ingle v. McCurry, 1 Heisk. 26.) The sale in the foreclosure of a mechanic's lien upon con- structive service of process against a resident defendant is void though made under a statute expressly authorizing it. Such a statute is unconstitutional and void, and service by publication under circumstances of this kind is not due process of law within the constitutional guaranty. (Bardwell v Collins, 44 Minn. 97 — 46 X. W. Rep. 315.) A foreclosure suit and sale under the decree rendered therein upon constructive service of process against a person dead at the time the action was instituted or service com- pleted is a mere nullity. (Williams v. Hudson, 93 Mo. 524 — 6 S. W. Rep. 261; Bollinger v. Chouteau, 20 Mo. 89; Bragg v. Thompson, 19 S. C. 572.) And a judgment based upon the ground of non-residence in attachment proceedings rendered against a foreign corpora- tion which at the time was a domestic corporation, the judg- ment and all proceedings thereunder are void for want of jurisdiction, (Bernhart v. Brown. 119 X. C. 506 — 26 IS. E. Rep. 162.) and a personal judgment rendered in a foreign attachment without personal service or appearance by the defendant will not support a sale under execution. (Stanley v. Stanley, 35 S. C. 94 — 14 S. E. Rep. 675.) The jurisdiction of the court in proceedings in attachment against non-residents depends upon the filing of a proper affi- INSTANCES OF SALES VOTD COLLATERALLY. 395 davit; if the affidavit is altogether omitted or is fatally de- fective, the sale of the property under the order of the court may be collaterals attacked. (Rubber Co. v. Knapp. 01 Wis. 103-20 X. W. Rep. 651; Birchall v. Griggs 4 N. Dak. 305-60 X. W. Rep. 842; Mentzer v. Ellison, i < olo ^ p p 6 31 5-43 Pac. Rep. 164; Borland v. Kingsbury, 65 Mich. 59- 31 N W Rep. 620; Bray v. McClury, 55 Mo. 128; Whitney v. Burnett, 15 Wis. 01; Burnet! v. McCluey, 78 Mo. 67G; Hargadine v. Van Horn, 72 Mo. 370.) If the affidavit for publication fails to show that the cause of a.-lion sued on was one upon which service by publication is authorized bv statute, the sale has been held void. (Adams v. Baldwin, 49 Kan. 781-31 Pac. Rep. 681; Grouch v. Martin. 47 Kan. 313-27 Pac. Rep. 985; Harris v. Claflm, 36 Kan. .,43 — 13 Pac. Rep. S30; Nelson v. Rountree, 23 Wis. 367.) So where the statute required the notice published to non- residents to mention what the cause of action was, a new cause of action added to the one embraced in the petition and notice, and a judgment based upon both causes united was rendered, which is void and will not support a sale thereunder. (Stewart v. Anderson. 70 Tex. 5S8 — S S. W. Rep. 295.) A sale under a judgment in mortgage foreclosure upon constructive service of "process in which the defendant's sur- name only is mentioned is void when questioned in a collateral proceeding ; (Schisel v. Dickson, 129 Ind. 139 — 28 N. E. Rep. 540.) or where the defendant's Christian name was set out in the published notice radically wrong, (Colton v. Rupert, 60 Mich. 318 — 27 N. W. Rep. 520.) or where the petition mentioned the defendant by his correct name as, Kike, but the published notice designated him as Pike, and the judgment by default subsequently entered was against the defendant in his right name, (Newman v. Bowers, 72 Iowa. 465 — 34 N. W. Rep. 212.) the sale under execution will be void upon collateral inquiry. Sales in Foreclosure of Tax Liens. § 446. A judgment and sale in foreclosure of a tax lien was held void in Minnesota because of the failure of the board of county commissioners to designate by resolution the 39G VOID JUDICIAL AXD EXECUTION SALES. particular newspaper in which the delinquent tax list should be published, and certify to the court a copy of such resolu- tion, as by statute required. The filing' of such resolution is considered a jurisdictional requirement to a valid publication and its omission renders the proceedings void. (Merriam v. Knight, 43 Minn. 493 — 45 N. W. Rep. 1098.) And a similar conclusion was readied by the same court where the editor of a particular paper is named in the resolu- tion instead of the paper itself; (Eastman v. Linn, 2G Minn. 215 — 2 N. W. Rep. G93.) and a sale of lands in proceedings in foreclosure of a tax lien upon lands not described in the published delinquent list is a nullity for jurisdictional infirmity and subject to successful collateral impeachment. (Smith v. Kipp. 49 Minn. 119 — 51 X'. W. Rep. 656; Feller v. Clark, 36 Minn. 338 — 31 N. W. Rep. 175; Vanderlinde v. Canfield, 40 Minn. 541 — 42 N. W. Rep. 53S; Kipp v. Frenhold, 37 Minn. 132 — 33 N. W. Rep. 697.) Though in Illinois the judgment in foreclosure of a tax lieu is by statute declared conclusive evidence of its regularity and validity in all collateral proceedings, except in cases where the tax or special assessment has been paid, or the land was not liable to the tax or assessment, yet the court held a tax judgment, sale and deed void collaterally where unau- thorized claims were included in the levy and judgment; (Drake v. Ogden, 128 111. 603 — 21 N. E. Rep. 511; Riverside Co. v. Howell, 113 111. 256; McLaughlin v. Thompson, 55 111. 249.) but in Minnesota and Missouri this was not considered fatal to the sale. (Allen v. Ray, 96 Mo. 542 — 10 S. W. Rep. 357; Coffin v. Estes, 32 Minn. 367 — 20 X. W. Rep. 357; Kipp v. Dawson, 31 Minn. 373 — 17 N. W. Rep. 961.) Where by statute proceedings to enforce tax liens must be instituted against the owner of the land, if there is a mis- nomer in tin's regard, the sale is void. As where the judg- ment is against " Siemonson " and the true name of the owner is " Simonson ", the proceedings will not support a tax title. (Simonson v. Dolan, 114 Mo. 170 — 21 S. W. Rep. 510.) INSTANCES 01 SALES VOID COLLATERALLY. 397 So it. is held in Missouri that the interest in land of an heir who is not made a party to a judicial proceeding to collect a tax on the land is not affected thereby. (Wolcott v. Sand, 122 Mo. 621-27 S. W. Rep. 331.) In Illinois where the judgment against land includes an illegal tax, or improper costs, the sale of the property there- under is a nullity if there was no appearance of the owner on the application for judgment. (Gage v . Lyons, L38 111. 590-28 S. W. Rep. 832; Riverside County V. Howell, 127 111. 431.) No Additional Bond, Notice of Sale Given or Oath Taken. _ § 447 In states where there is a statute providing that in sales by administrators, executors and guardians, if it appears that certain things have been done, among them that the fiduciary has given a sale bond, taken the oath concerning the sale and has given the notice of sale as by law required, the sale shall not be avoided by the ward or heir, the failure to give the bond, take the oath or publish the notice makes the sale void when questioned in a collateral action. " (Weld v. Johnson Mfg. Co., 84 Wis. 537-54 N. W. Rep. 335; Huber- ,nann v. Evans. 46 Neb. 784-65 N. W. Rep. 1045; Montour V^ Purdy, 11 Minn 384 - 88 Am. Dec. 88; McGrubb v. Bray, 36 Wis. 333; Williams v Reed 5 Pick. 480; Tracy v. Roberts, 88 Me. 310-34 Atl. Rep. 68; Bachelor v. Korb, 78 N. W. Rep. 485; Williams v. Morton. 38 Me. 47 — 61 Am. Dec. 229; Walker v. Goldsmith, 14 Ore. 125-12 Pac. Rep. 537; Hartley v. Corze, 38 Minn. 325-37 N. W. Rep. 449.) Execution Sale at Wrong Time or Place. § 448. A sale of land under execution made in a county other than that wherein the premises are located, where the law prescribes a particular place where real estate is to be sold under execution is void in a sense that it can be ques- tioned in a collateral way, the requirement of statute m tins regard being held mandatory. (Moody v. Moeller, 72 Tex. 635-10 S. W. Rep. 7:27: Short v. Hep- burn, 75' Fed. Rep. 113; Terry v. O'Neal, 71 Tex. 594-9 S. W. Rep. 673; Koch v. Bridges, 45 Miss. 247; Sinclaire v. Stanley, 64 Tex. 6<; Holmes v. Taylor, 48 Ind. 169; Grace v. Garnet, 38 Tex. 156.) And a sale of real estate under execution made on a day other than that prescribed by law, as for instance during a term of court, is void. 398 VOID JUDICIAL AND EXECUTION SALES. (Loudermilk v. Corpenning, 101 N. C. 649 — 8 S. E. Rep. 117; Tanner v. Stine, 18 Mo. 580 — 59 Am. Dec. 320; Worthen v. Basket, 99 N. C. 70 — 5 S. E. Rep. 401; Martin v. Bonsach, 61 Mo. 556; Mayers v. Carter, 87 N. C. 146 ) Sales Void Because of Defect in Execution or its Enforcement. § 4-19. A sale under execution upon a levy made after the expiration of the active energy of the writ is void for want of jurisdiction and may be impeached in any collateral pro- ceeding. (Evans v. Caiman, 92 Mich. 427 — 52 N. W. Rep. 787: Waldorp v. Friedman, 90 Ala. 157 — 7 So. Rep. 510; Rand v. Cutler, 155 Mass. 451 — 29 N. E. Rep. 1085 ; Ansonia Co. v. Connor, 103 N. Y. 502 — 9 N. E. Rep. 238; Cain v. Woodward, 74 Tex. 549 — 12 S. W. Rep. 319; Faull v. Cooke, 19 Ore. 455 — 26 Pac. Rep. 662 ; Doe v. McKinnie, 4 Hawks, 279 — 15 Am. Dec. 519; Wyer v. Andrews, 13 Me. 168 — 29 Am. Dec. 497.) And the issuance of execution and sale against a deceased person after his death, though lie was alive at the time of rendition of the judgment, is wholly inoperative to pass the title to the purchaser. (Hooper v. Caruthers, 7S Tex. 432 — 15 S. W. Rep. 98; Norfchcraft v. Oliver, 74 Tex. 162 — 11 S. W. Rep. 1121.) The sale of personal property under execution is void when at the time of sale the same was locked up in a building where it could not be seen and the sale occurred upon other prem- ises than those whereon the property was located; (Penney v. Earle, 87 Me. 167 — 32 Atl. Rep. 879; Lawry v. Ellis, S5 Me. 500 — 27 Atl. Rep. 518.) and an execution sale of personal property which has not been taken in possession by the officer and which is not at or near the place of sale, is also void and can be impeached in a col- lateral proceeding. (Alston v. Morphew, 113 N. C. 460 — 18 S. E. Rep. 335; Paper Co. v. Publishing Co., 31 S. W. Rep. 10S3.) So an execution sale of lands where the writ is against ' William Van Hagen " on a judgment recovered against " II. TV. Van Hagen " is wholly insufficient to pass title, and the sale open to collateral attack by the former owner. (Morris v. Balkham, 75 Tex. 111 — 12 S. W. Rep. 970.) A sale of land under an execution not bearing the seal of the court out of which it emanated, as required by statute, is INSTANCES OF SALES VOID COLLATEEALLT. 399 held to be an absolute nullity. The law directing the writ to be in a particular form — to be sealed with the seal of the court — being considered mandatory and the requirement of the seal imperative, without which the sale is void. (Weaver v. lVasley, 163 111. 251 — 45 N. E. Rep. 119; Sidwell v. Schumacher, 99 111. 426; Egan v. Connelly, 107 111. 458; Etoseman v. Miller, 84 111. 297.) Sales Void Because of Fraud in Judgment or Sales. § 450. The general rule that the destructive virus of fraud vitiates everything applies with as much force to judicial rec- ords and proceedings as it does to private contracts and trans- actions. Accordingly, it is held that while a probate sale is a judicial one, it is nevertheless subject to collateral impeach- ment by one affected but not implicated for i'nud which en- tered into the procuration or rendition of the order of sale, or fraud used in the consummation of the sale itself. I Lancaster v. Wilson, 27 Gratt. 624; Mitchell v. Kintzer, 5 Pa. St. 210 — 47 Am. Dec. 40S; Verner v. Carson, 66 Pa. St. 440; Hoitt v. Hol- comb, 23 X. II. 535; Hall v. Hamlin. 2 Watts. 354; Rhoada v. Selin. 4 W. C. C. 715; Potts v. Wright, 82 Pa. St. 498.) And as a general rule a judgment or decree procured through the fraudulent machinations and collusion of the parties thereto with the intent and purpose of defrauding a third person is subject to collateral attack by such party, and the sale thereunder must fall to the ground, as fraud is con- sidered a thing which can not be permitted to stand even when robed in a judgment of a court of justice. (Bank v. Moore, 152 111. 528 — 38 N. E. Rep. 684; Ogle v. Baker, 137 Pa. St. 37S — 20 Atl. Rep. 998; Palmer v. Martindell, 43 N. J. Eq. 90 — fo All. Liep. 802; Smith v. Cuyler, 7s Ga. 654 — 3 S. E. Rep. 406; Sager v. Meade, 164 Pa. St. 125 — 30 Atl. Pep. 284; Atkinson v. -Mien, 12 Vt. 619 — 36 Am. Dee. 361; Freydenhall v. Baldwin, 103 111. 325; Berg- man v. Hutcheson, 60 Miss. 872.) But this rule does not include the parties or their privies, unless the evidence of the fraud is apparent upon the face of the record; (Williams v. Haynes, 77 Tex. 283 — 13 S. W. Rep. 1029; Morrill v. Morrill, 20 Ore. 96 — 25 Pae. Rep. 362; McClanahan v. West, too Mo. 309 — 13 S. W. Rep. 674; Smithson v. Smithson, 37 Neb. 535 — 56 N. W. Rep. 300; Hollinger v. Reeme, 138 Ind. 363 — 36 N. E. Pep. 1114.) 400 VOID JUDICIAL AND EXECUTION SALES. although it does apply to the purchaser to whom actual fraud is imputed in procuring a title at a judicial or execution sale, as he not only obtains nothing by his purchase, but by reason of his fraud forfeits the money paid. (Gobel v. O'Conner, 43 Neb. 49-61 N. W. Rep. 131; Phelps v. Benson, 161 Pa. St. 418 — 29 Atl. Rep. 86; Evans v. Maurey, 112 Pa. St. 300—3 Atl. Rep. 850; Gilbert v. Hoffman. 2 Watts, 66 — 26 Am. Dec. 102; McCrasky v. Graff, 23 Pa. St. 321 — 62 Am. Dec. 336.) Trial Judge Disqualified from Acting. § 451. If the judge who presided in a case wherein he was by statute disqualified by reason of being a party thereto or for other reasons recognized in the statute, the judgment is held to be void, because in a judicial sense the office is vacant under such circumstances and his acts in such cause are wholly devoid of judicial sanction by reason of the inhibition of the statute, as well as the general policy of the law requir- ing absolute fairness and purity in the administration of justice. (Horton v. Howard, 79 Mich. 642 — 44 N. W. Rep. 1112; Frevert v. Swift, 19 Nev. 363 — 11 Pac. Rep. 273 ; West v. Wheeler, 49 Mich. 505 — 13 N. W. Rep. 836; Hall v. Thayer, 105 Mass. 219 — 7 Am. Rep. 513; In re Ryers, 72 N. Y. 1 — 2S Am. Rep. 88; Estate of White, 37 Cal. 192: In re Mfg. Co., 77 N. Y. 101 — 33 Am. Rep. 579; Chambers v. Hodges, 23 Tex. 105.) EFFECT OF STATUTE OF LIMITATIONS ON JU- DICIAL SALE. Statute Does not Apply to Void Sales. § 452. Special statutes of limitations by which certain peri- ods are prescribed within which the validity of sales of land made in probate proceedings by administrators, executors and guardians under the order of court may be questioned or im- peached, according to the weight of judicial authority, have no application to such sales which are void because of juris- dictional infirmity. Nor arc these statutes of limitations in- tended to prescribe a limitation against attack upon infirmi- ties caused by reason of the fact that the sale was made by an unauthorized or incompetent person having no semblance of authority to make it, as for instance, by one assuming to EFFECT OF STATUTE OF LIMITATIONS ON JUDICIAL SALE. 401 act as administrator or guardian, but who in fact is wholly without authority to act as such. Cases where there is a want of jurisdiction, or where the sale is made by an unauthorized or incompetent person hav- ing no semblance of authority to do so, come neither within the letter nor spirit of such statutes, and manifestly in all such eases the heir or ward is not barred by the lapse of the prescribed time from asserting his right or title to the prop- erty. (Pursley v. Hayes. 22 Iowa, 11 — 92 Am. Dec. 350; Holmes v. Beal, 9 Cush. 223; Boyles v. Boyles, 37 Iowa, 592; Chadbourne v. Ratcliff, 30 Me. 354; Rankin v. Miller, 43 Iowa, 11.) In Indiana it is held that the statute applies to void sales. because if it has 'no application to these it must of necessity be nugatory, for if the sale is net void the purchaser would not need the assistance of the statute of limitations. ^ This ruling is not only against the weight of authority but is un- tenable upon principle, for the mere lapse of time should not alone make a void act unassailable. (Oir v. Owens, 128 Ind. 229 — 27 N. E. Rep. 493; Brown v. Maher, 68 Ind. 14; Moore v. Ross, 139 Ind. 200 — 38 N. E. Rep. 817: Walker v. Hill, 111 Ind. 223 — 12 X. E. Rep. 387; Vancleave v. Milliken, 13 Ind. 105.) Nor have such statutes any application to sales in proceed- ings in foreclosure of tax liens where the judgment in fore- closure was rendered upon publication of the tax list and notice so insufficient as to fail to confer jurisdiction to pro- nounce the judgment. (Smith v. Kipp, 49 Minn. 119 — 51 N. W. Rep. 656; Feller v. Clark, 30 Minn. 338 — 31 X. W. Rep. 175; Kipp v. Frenhold, 37 Minn. 132 — 33 N. W. Rep. 697; Sanborn v. Cooper, 31 Minn. 307—17 X. \V. Hep. S56 ) Essentials to Availability of Plea of Statute. § 453. The defendant in an action involving the possession of land, who establishes his title to the same by virtue of a sale in proceedings in administration or guardianship ami deed m consummation thereof, having hold possession of the prem- ises for the prescribed period, and who pleads the statute of limitations in bar of the action to recover, is not bound to show as a pre-requisite to the availability of such plea, a 26 402 VOID JUDICIAL AND EXECUTION SALES. prima facie valid sale to him, for such a requirement would be equivalent to a total denial of the benefit of the statute. Manifestly, if a showing of a prima facie valid sale is exacted this of itself is sufficient to defeat a collateral attack upon his title and the statute would be useless. (Vancleave v. Milliken, 13 Ind. 105; Spencer v. Sheehan, 19 Minn. 338 ; Moore v. Eoss, 139 Ind. 200 — 27 > T. E. Rep. S17 ; Bank v. Corey, 94 Ind. 457; Walker v. Hill. Ill Ind. 223 — 12 N. E. Rep. 3S7; Brown v. Moher, 68 Ind. 14; Holmes v. Beal, 9 Cush. 223; Montour v. Purdy. 11 Minn. 384 — 88 Am. Dec. 88; Smith v. Swensen, 37 Minn. 1 — 32 N. W. Rep. 784; Palmerton v. Hoop. 131 Ind. 23 — 30 N. E. Rep. 874.) But as a condition precedent to availing himself of the statute the defendant must nevertheless show the existence of a sale in fact consummated under the forms of law, with- out which he can not utilize the benefits of the statute. (Vancleave v. Milliken. 13 Ind. 105: Rawlinga v. Bailey, 15 111. 178; Musgrove v. Conover, 85 111. 374.) Xor will the statute have any application to sales made anterior to its enactment, as such statutes usually operate in futirro only, and leave existing rights and liabilities to be governed and determined by the law in force when the sale occurred. If a retroactive effect is to be attributed the legis- lative intent must be plain. (Cooper v. Sunderland. 3 Iowa. 114 — 66 Am. Dec. 52: McMillan v. McCormiek, 117 111. 79 — 7 X. E. Rep. 100.) STATUTES DECEASING THE EFFECT OF JUDIC- IAL PROCEEDINGS. Purchase by Disqualified Purchaser. § 454. In several states statutes have been enacted making the existence or absence of certain enumerated matters suffi- cient ground for the avoidance or nullification of judicial pro- ceedings of the nature or kind therein specified. As far as our investigations have gone we have been unable to find a statute expressly providing that any specified defect should make the judgment, sale or other proceeding void in a col- '•;il proceeding. Xor are any of them so broad in latitude as to declare that the rights acquired under such judgment, sale or other proceeding should be void in the hands of an innocent party. There is consequently ample room for STATUTES DECLARING EFFECT OF JUDICIAL PROCEEDINGS. 403 statutory construction, and investigation discloses that con- . flicting conclusions have been reached by the courts as to the effect of such statutes. Statutes declaring' a purchase, di- rectly or indirectly, by an administrator or guardian void when made at his own sale have been construed both directory and mandatory, and a sale made in contravention thereof is held in some states void and in others voidable only. (McGraw v. Daly, 82 Mich. 500 — 46 N. \V. Rep. 671; Terwillager v. Brown. 44 X. Y. 237; Forbes v. Halsey, 26 N. Y. 53; Dwight v. Blackmar, 2 Mich. 330; Hoffman v. Harrington, 28 Mich. 90: Melius v. Pabst Brew- ing Co., 93 Wis. 153 — 66 N. W. Rep. 518; White v. Iselin, 26 Minn. 487 — 5 N. W. Rep. 359; Cline v. Catron, 22 Gratt. 378.) And where by statute a purchase at a judicial sale by an appraiser shall be considered fraudulent and void, it was held not void collaterally, but invalid upon a direct attack, and hence voidable only. (Terrell v. Anchauer, 14 Ohio St. 80.) Sale not Void when Certain Things Appear. § 455. The statute enumerates certain thing's and provides that if these appear to have been done the sale shall not be avoided by an heir or ward, and among these essentials the appointment of the administrator or guardian does not ap- pear, and it is held that collateral inquiry can not be had as to such appointment, in an action for the possession of the premises sold; (Davis v. Hudson, 29 Minn. 27 — 11 N. W. Rep. 136; Woods v. Monroe, 17 Mich. 238.) but among the things enumerated is an additional bond which, if omitted, renders the sale void upon collateral inquiry. ( Weld v. Johnson Mfg. Co., 84 Wis. 537 — 54 X. W. Rep. 335 ; Bachelor v. Korb, 78 N. W. Rep. 485; Stewart v. Bailey, 28 Mich. 251; Babcock v. Cobb, 11 Minn. 347; Williams v. Reed, 5 Pick. 480.) Or where the notice of sale is one of the requirements in such curative statutes, and this has been disregarded, the same results will follow. (Hartley v. Croze, 38 Minn. 325 — 37 N. W. Rep. 449.) And the same result follows where the oath has not been taken or subscribed before fixing on the time and place of sale as required by the statute. 404 VOID JUDICIAL AND EXECUTION SALES. (Bachelor v. Korb, 78 N. W. Rep. 485 ; Bla«kman v. Baumann. 22 Wis, 611; Williams v. Reed, 5 Pick. 480; Campbell v. Knights, 26 Me. 224; Ryder v. Flanders, 30 Mich. 336.) Where the statute prescribes what the petition by an ad- ministrator to sell land of the decedent shall state, and fur- ther provides that a failure to set out the facts showing a necessity for a sale shall not invalidate the subsequent pro- ceedings if the defect be supplied by proofs at the hearing, and the general facts disclosing such necessity be set out in the decree, it is held that where both petition and decree fail to show that a sale was necessary, it is subject to collateral impeachment. (Kertchem v. George, 7S Cal. 597 — 21 Pac. Rep. 372; Estate of Rose, 63 Cal. 346.) Other Defects and Irregularities. § 456. The statute in Massachusetts provides that no sale of real estate by an administrator upon license of the court shall be void because of any irregularity in the proceedings, which has been decided to apply only to sales authorized by the license, and that a sale by an administrator of real estate in excess of what is necessary to pay debts and charges of ad- ministration, under a license to sell only what is necessary for such purposes, is unauthorized and void, and not cured by the statute. (Gregson v. Tuson. 153 Mass. 325 — 26 N. E. Rep. 874.) The statute declared the discharge in insolvency proceed- ings void and of no effect in case an unlawful preference had been given, and the court held this to mean void in a collat- eral sense. (Morse v. Reed, 13 Met. 62.) But a statute providing that an attachment issued without taking a bond shall be void, was held to mean void in a direct proceeding only. (Camberford v. Hall, 3 McCord, 345; Banta v. Reynolds, 3 B. Mon. 80.) In Wisconsin a statute made the order for publication of notice conemsiw in all collateral actions and proceedings of the existence of the essential facts to authorize the making of STATUTES DECLARING EFFECT OF JUDICIAL PROCEEDINGS. 405 such order, and the court held the order of publication valid collaterally, notwithstanding the affidavit was made by an at- torney and failed to show his authority, or the grounds of his belief. The insufficiency or invalidity of the order by reason of such omissions was decided to be cured by the statute. (Sturm v. Adams, 56 Wis. 139 — 14 N. W. Rep. 69.) Chapter VII. Caveat Emptor, and the Legal and Equitable Rights of Purchasers at Void Execution and Judicial Sales. ANALYSIS. Section 457. Application and Qualification of the Rule caveat emptor — Defective Title or Failure of Title. 458. In Case of Judgment or Sale is Void. 459. Effect of Accident, Fraud or Mistake. 460. Purchase by Judgment Creditor. 461. Eight of Purchaser to Refuse Payment of His Bid — When Judgment or Sale is Void. 462. If Purchaser Bought with Notice can Not Resist. 463. Negligence of Purchaser Precludes Resistance. 464. Purchaser is Chargeable with Facts Disclosed by the Record. 465. If Purchaser Has Been Deceived He May Refuse. 466. May the Purchaser Demand a Marketable Title. 467. Purchaser a Party to Proceedings and May be Com- pelled to Pay. 468. Purchaser is Liable for Deficiency on a Resale. 469. Right of Purchaser to Recover Money Paid — Rule caveat emptor Affecting Recovery. 470. Reimbursement Compelled from Parties. 471. Reimbursement as a Condition Precedent to Recovery of Land. 472. Judgment Creditor as Purchaser. 473. Void Sales Ratified by Parties in Interest — Confirmation and Ratification in General. 474. ■ Ratification by Receipt of Proceeds in Execution Sale. 475. Chancery and Probate Sales Ratified by Receipt of Proceeds. 476. ^Ratification by Conduct Otherwise than by Receipt of Proceeds. 477. When Ratification by Minors Made. 478. Purchaser in Chancery Sales has Right to Subrogation r— Doctrine Applies to Chancery Sales in General. 479. Subrogation in Void Mortgage Foreclosure Sales. 4S0. In Foreclosure of Tax Liens. APPLICATION OF THE RULE CAVEAT EMPTOR. 407 Section 481. Purchasers at Probate Sales have Right to Subrogation — The Doctrine of Subrogation Generally Applicable. 482. Right Exists in Case the Sale is a Nullity. 4S3. Right of Purchaser at Execution Sales to Subrogation Affirmed — Where Execution Defendanl has no Title. 484. Where Judgment is Valid but Subsequent Proceed- ings Void. 485. Doctrine of Subrogation Denied — Results of Denial oi the Right to Subrogation. 486. Effect of Purchaser's Fraud on Right to Subrogation — Obtains no Title and Forfeits Money Paid. 487. Purchaser of Bomestead in Contravention of Statul •■ 488. Fraudulent Purchaser May Assert Equities in Miss's- sippi. 489. Right of Purchaser to Equitable Assistance in Supplying Defects. Omissions and Mistakes — Equity Will Not Aid a Defective Execution of Statutory Power. 490. Correction of Errors or Mistakes in General. 491. Errors or Mistakes in Proceedings and Deed. 492. Uncertainty of Description in Mortgage and Proceed- ings. 493. Equity will Compel Officer to Make Proper Conveyance. APPLICATION AND QUALIFICATION OF THE RULE CAVEAT EMPTOR. Application and Qualification of the rule caveat emptor — De* fective Title or Failure of Title. § 457. That the rule caveat emptor is applicable to a pur- chaser at a judicial and execution sale is a settled and con- ceded proposition of jurisprudence. The only difficulty en- countered lies in the application of the rule to individual cases A conveyance to one who buys at such sales transmit. to him no greater title or estate than a quit-claim deed in the strictest sense from the judgment debtor would transfer, which is simply such interest as the debtor or decedent has in the property conveyed. If perchance the debtor has no in- terest whatever, manifestly nothing passes by the proceed- ings and deed. (Borders v. Hodges, 154 111. 49S-39 N. E. Rep. 597 ; Lindsay v. Cooper. 94 Ala 170-11 Bo. Rep. 325; Lenders v. Thomas, 35 Fla. 518 — 11 So. Pep. 48; Butler v. Fitzgerald, 43 Neb. 192-01 N. W. Rep. 640; Steams v Edson, 63 Vt. 259-22 All. Rep. 420; Pope v. Benster. 42 Neb. 304 - 60 N. W. Rep. 561; Velsian v. Lewis, 15 Ore. 539-16 Pac. Rep. 631: 408 VOID JUDICIAL AXD EXECUTION SALES. Lowe v. Rawlins, 83 Ga. 320 — 10 S. E. Rep. 204; Hargreaves v. Meneken, 45 Xeb. 668 — 63 N. W. Rep. 951; Bond v. Montgomery, 56 Ark. 563 — 20 S. W. Rep. 525 ; Hooper v. Castetter, 45 Neb 67 — 63 N. W. Rep. 135; Roberts v. Hughes, 81 111. 130 — 25 Am. Rep. 270; Cooper v. Lindsay, 109 Ala. 338 — 19 So. Rep. 379.) In Pennsylvania the rule as to title applies only as to open defects, such as can be seen or ascertained, and not to secret defects, against which the purchaser is protected. (Tarr v. Robinson, 158 Pa. St. 60 — 27 All. Rep. 859: Lance v. Gorman, 136 Pa. St. 200 — 20 Atl. Rep. 792; Dickinson v. Beyer, 87 Pa. St. 274; Miller v. Baker, 166 Pa. St. 414 — 31 Atl. Rep. 121; Banks v. Ammon, 27 Pa. St. 172.) In execution sales the sheriff does not deed with a war- ranty, whether express or implied, but conveys as he sold, merely the interest of the execution defendant at the date of the lien of judgment, levy or execution, the purchaser buys at his peril, and in the absence of fraud or excusable mistake he can obtain no relief because of a defective title, or an en- tire want of title in the defendant. (Greer v. Wintersmith, 85 Ky. 516 — 4 S. W. Rep. 232; Arnold v. Donaldson, 46 Ohio St. 73 — 18 N. E. Rep. 540; Benbow v. Boyer, 89 Iowa, 494—56 N. W. Rep. 544; Neal v. Gillespy, 56 Ind. 451 — 26 Am. Rep. 37; Jones v. Blumenstein, 77 Iowa, 361 — 42 N. W. Rep. 321; Danley v. Rector, 10 Ark. 211 — 50 Am. Dec. 242; Henderson v. Overton, 2 Yerg. 394 — 24 Am. Dec. 492; Coyne v. Souther, 61 Pa. St. 455; Long v. Waring, 25 Ala. 625 ; Creps v. Baird, 3 Ohio St. 277 ; Rockwell v. Allen, 3 McLean, 357; Reed's Appeal, 13 Pa. St. 476; Phillips v. Johnson, 14 B. Mon. 172; Hammsmith v. Espey, 19 Iowa, 444; Humphrey v. Wade, 84 Ky. 391 — 1 S. W. Rep. 648; Yocum v. Foreman, 77 Ky. 494.) The rule is applicable to personal as well as to real prop- erty, for the purchaser buys merely the interest of the defend- ant and if that be nothing then he takes nothing, but he must pay the amount of his bid. (Harrison v. Shanks, 13 Bush, 620; Brown v. Gray, 6 Jones L. 103 — 72 Am. Dec. 563; McGhee v. Ellis, 4 Litt. 244 — 14 Am. Dec. 124; Griffiths v. Fowler, 18 Vt. 325; Methin v. Bexley, IS Ga. 551; Austin v. Tilden, 14 Vt. 325.) Xothing more than the present interest of the judgment debtor is passed by a judicial or execution sale, and any inter- est in the particular property sold that he may acquire there- after is not affected bv the sale. APPLICATION OF THE PULE CAVEAT EMPTOR. 409 (McArthur v. Oliver. GO Mich, fins — 27 N. W. Rep. 689; Westheimer V. Reed, 15 Neb. 662 — 19 X. W. Rep. 626; Hamilton v. Mining Co., 33 Fed. Rep. 562 ; Vannoy v. Martin, 6 Ired. Eq. 169 — 51 Am. Dee. 418; Morgan v. Bouse. 53 Mo. 219; Osterman v. Baldwin, G Wall. 116; Bell v. Flaherty, 45 Miss. 694.) In Case Judgment or Sale is Void. § 458. Though caveat emptor is the firmly established rule in all judicial sales, still it has no application to defects in the title of the purchaser caused by virtue of a failure of the pro- ceeding's of sale to transfer the title to him, when it might have passed, but for the latent inherent infirmity and insuffi- ciency of such proceedings. (Throckmorton v. Penee, 121 Mo. 50 — 25 S. W. Rep. 843; Meher v. Cole, 50 Ark. 361 — 7 S. W. Rep. 451; Nichols v. Shearon, 49 Ark. 75 — 4 S. W. Rep. 167; Crippcn v. Chappel, 35 Kan. 495 — 11 Pae. Rep. 453; Valle v. Fleming. 29 Mo. 152 — 77 Am. Dee. 557; McGee v. Wallis, 57 Miss. 638; Hatcher v. Briggs, 6 Ore. 31; Boykin v. Cook, 61 Ala. 472; Bynum v. Govan, 29 S. W. Rep. 1119; Halsey v. Jones, 25 S. W. Rep. 696; Boggs v. Fowler, 1G Cal. 559 — 76 Am. Dec. 561; Burns v. Led- better. 56 Tex. 282; Dodd v. Nilson. 90 N. Y. 243; Goode v. Grow, 51 Mo. 224; Munday v. Kaufman, 48 La. Ann. 591 — 19 So. Rep. 619.) However, a purchaser at a judicial sale must look to the jurisdiction of the court granting' the order or judgment, though the truth of the record as regards matters within its jurisdiction are indisputable. Jurisdiction attaching, the rec- ord imports absolute verity in -all collateral proceedings. (Succession of Thez. 44 La. Ann. 46 — 10 So. Rep. 412; Frost v. At wood, 73 Mich. 67 — 41 N. W. Rep. 96; Grevemberg v. Bradford, 44 La. Ann. 400 — 10 So. Rep. 7S6; Bank v. Humphreys, 47 111. 227; Covington v. Ingram, 64 N. C. 123; Barker v. Kane. 22 How. 14; Alexander v. Nelson. 42 Ala. 462; Deguindre v. Williams, 31 Ind. 444; James v. Meyor, 41 La. Ann. 1100 — 7 So. Rep. 61S; Massie v. Brady, 41 La. Ann. 553 — 6 So. Rep. 535.) So a purchaser of land at a guardian's sale is bound at his peril to ascertain whether sueh fiduciary has full legal au- thority to make a valid sale and conveyance of title before he buys, as in such case the rule carcat emptor applies with un- diminished strictness. (Leuders v. Thomas, 35 Fla. 518 — 17 So. Rep. 633; Black v. Walton, 32 Ark. 321; Guynn v. McCauley. 32 Ark. 97.) 410 VOID JUDICIAL AND EXECUTION SALES. The rule obtains in all its rigor to a purchaser at a tax sale, in the absence of special statute to the contrary. Such a pur- chaser is never considered as a bona fide purchaser, and should his title fail, he is without a remedy for his loss, save such as is provided by statute. (Foree v. Stubbs, 41 Xeb. 271 — 59 N. W. Rep. 798; Investment Co. v. Beadle Co., 5 S. Dak. 410 — 59 X. W. Rep. 212 : State v. Casteel, 110 Ind. 174 — 11 X. E. Rep. 219; Barber v. Evans, 27 Minn. 92 — 6 X. W. Rep. 445; Graham v. Florida L. & M. Co.. 33 Fla. 356 — 14 So. Rep. 796; Wilmerton v. Philips, 103 111. 7S; McCormick v. Edwards. 69 Tex. 106 — 6 S. W. Rep. 32; Hyde v. Supervisors, 43 Wis. 129; Lynde v. Melrose, 10 Allen. 49.) Effect of Accident, Fraud or Mistake. § 459. The purchaser at a judicial sale is entitled to relief upon the ground of after-discovered mistake in material facts, or for fraud, when he himself is not chargeable with negli- gence. If he does not examine the record or title himself, and relies upon the statements of the officer as to the con- ditions thereof, he is considered as not free from negligence, for he must examine for himself or buy at his peril. The mistake, to be available, must be mutual, and not due to cul- pable negligence of the purchaser alone. (Redd v. Dyer, 83 Va. 331 — 2 S. E. Rep. 272; Norton v. Trust Co.. 35 Xeb. 466 — 53 X. W. Rep. 481 ; Boorum v. Tucker. 51 X. J. Eq. 135 — 26 Atl. Rep. 456; Tarr v. Robinson. 15S Pa. St. 60 — 27 Atl. Rep. 859; Smith v. Wortham, 82 Va. 937 — 1 S. E. Rep. 331.) And the mistake or fraud must be clearly and distinctly alleged and proven. (Gregory v. People. SO Va. 355; Hiekson v. Rucker, 77 Va. 138; Hord V. Colbert, 28 Graft. 49.) In the absence of fraud, imposition or excusable mistake, the maxim caveat emptor applies with its strictest rigor in all cases in which there is a complete or partial want of title to the land in the judgment debtor, according to a preponderance of judicial authority. (Thomas v. Glazner, 90 Ala. 537— S So. Rep. 153; Danly v. Rector, 10 Ark. 211 — 50 Am. Dec. 242; Goodbar v. Daniel, 8S Ala. 5S3 — 7 So. Rep. 254; Walbridge v. Day, 31 111. 379 — 83 Am. Dec. 227; Hand v. Grant, 5 S. & M. 508 — 43 Am. Dec. 528: Fridley v. Sheetz, 9 S. & R. 156 — 11 Am. Dec. 691; Smith v. Painter. 5 S. & R. 223 — 9 Am. Dec. 344; Upham v. Hemill, 11 R. I. 565 — 23 Am. Rep. 525; Henderson v. APPLICATION OF TIIE RULE CAVEAT EMPTOR. 411 Overton, 2 Yerg. 394 — 24 Am. Dec. 492; Willis v. Van Dyke, 106 Pa. St. Ill; Alday v. Rook Island Co., 45 111. App. 62; Johns v. Trick. 22 Cal. 512; Vattier v. Lytic, 6 Ohio, 477; Methin v. Bexley, 18 Ga. 551 ; Roberts v. Hughes, 81 111. 130 — 25 Am. Rep. 270; Holtzinger v. Edwards, 51 Iowa, 383 — 1 N. \V. Rep. 600; Bond v. Ramsey, S9 111. 29; Long v. Waring, 25 Ala. 025; Tilley v. Bridges, 105 111. 336.) Judicial sales being made by the court in contemplation of law, there is no one who can be held responsible in ease the purchaser takes nothing by his purchase, and hence, in all but exceptional eases of fraud or misrepresentation, and justifiable mistake, the rule applies with inexorable rigidity, for there is no warrant and he who buys thereat musl assume the risk. But on the contrary, if the sale be tainted with fraud against the purchaser, or should the functionary con- ducting the sale, or the execution creditor, he guilty of mis- representations respecting the title, which were relied on by the purchaser who in consequence thereof is injured, the rule will not he enforced, because in such case it has no applica- tion, but the sale will be vacated, and if not already distrib- uted, the purchase money will be refunded to him. (Williams v. Glenn, 87 Ky. 87 — 7 S. W. Rep. 610; Chambers v. Coch- ran, 18 Iowa, 159; Webster v. Howarth, S Cal. 21 — 86 Am. Dec. 2S7; Wingo v. Brown, 14 Rich. L. 103; Walden v. Gridley, 36 111. 523; Cum- mings' Appeal, 23 Pa. St. 509; Auwerter v. Mathiot, 9 S. & R. 397; Rocksell v. Allen, 3 McLean, 357; Strouse v. Drennan, 41 Mo. 289; Mellen v. Boarman, 13 S. & M. 100; Bishop v. O'Conner, 69 111. 431 : Renton v. Maryott, 6 C. E. Greene, 123; Hamilton v. Pleasants, 31 Tex. 638; Bickley v. Riddle, 33 Pa. St. 276; Threkels v. Campbell, 2 Gratt. L98; Worthington v. McRoberts, 9 Ala. 297: Nutt v. Summers, 7s Va. 164; Thomas v. Davidson, 76 Va. 338; Boyce v. Strother, 76 Va. 862; W atson v. Hoy, 28 Gratt. 69S; Lindsay v. Cooper, 109 Ala. 338 — 19 So. Rep. 379.) In chancery and probate sales the purchaser must make his application to be released before confirmation, or objed to the confirmation, if he finds that the defendant, heir or -ward has no title or a defective one, or the title is incuml The confirmation is a binding order on him, and after its entry he is precluded from urging objections to the sale on the ground of defective or incumbered title, and avoid bis bid on such grounds. (Wilson v. While 106 N. V. 59— 15 X. E. Rep. 749; Shriver v. Shriver, 86 N. Y. 575; Orinsby v. Terry, 6 Bush, 553; Kostenbader v. Spotts, 412 VOID JUDICIAL AND EXECUTI0X SALES. 80 Pa. St. 430 ; Monarque v. Monarque, 80 X. Y. 320 ; McCahill v. Hamil- ton, 20 Hun, 388; Cashion v. Fania, 47 Mo. 133; Bank v. Martin, 7 Md. 342 — 61 Am. Dec. 350; Barron v. Mullin, 21 Minn. 374; Dresbach v. Stein, 41 Ohio St. 70.) But no relief will be given to a purchaser from a defect in the title of which he had due notice^ or was warned before the sale that the title was in dispute, and therefore, bought with his eyes open and hence negligently. The law pre- sumes his previous examination and satisfaction as to the title. (Stewart v. l;evries, 81 Md. 525 — 32 Atl. Rep. 2S5; McAdow v. Black, 4 Mont. 475 — 1 Pac. Eep. 751; In re Leard's Estate, 164 Pa. St. 435 — 30 Atl. Pep. 298; Boro v. Harris. 13 Lea, 36; Mining Co. v. Bank, 7 Mont. 530 — 19 Pac. Rep. 210; Oberthier v. Stroud, 33 Tex. 522; Bressler v. Martin, 133 111. 278 — 24 X. E. Rep. 51S; Hexter v. Schneider, 14 Ore. 1S4 — 12 Pac. Rep. 668; Lowe v. Rawlins. S3 Ga. 320 — 10 S. E. Rep. 204; Boorum v. Tucker, 51 X. J. Eq. 135 — 26 Atl. Rep. 456; Methin v. Bexley. 18 Ga. 551; Xorton v. Taylor, 35 Xeb. 466 — 53 X. W. Rep. 4S1 ; McC'ully v. Hardy. 13 111. App. 631 ; Cameron v. Logan. 8 Iowa, 434; Walton v. Reager, 20 Tex. 103; Rogers v. Smith, 2 Ind. 526; Rob- erts v. Hughes, 81 111. 130 — 25 Am. Rep. 270.) Purchase by Judgment Creditor. § 460. The rule caveat emptor has no application where the judgment creditor himself becomes the purchaser at an exe- cution sale, where the property levied upon and bought in does not belong to the defendant in the execution, but to a third person. In such case the purchaser may have the ap- parent satisfaction of his judgment vacated and a new exe- cution awarded, upon the principle that there is in fact no consideration for the satisfaction and he is not bound by the sale and apparent satisfaction thereby produced. (Whipperman v. Dunn. 124 Ind. 349 — 24 X*. E. Rep. 166; Kerchival v. Lanier, 68 Ind. 442 ; Jones v. Blumenstein, 77 Iowa, 361 — 42 X. W. Rep. 321; Bank v. Turney, 7 Humph. 273; Tudor v. Taylor. 26 Vt. 444; Ritter v. Henshaw, 7 Iowa, 97; Watson v. Reissig, 24 111. 2S1 — 76 Am. Dec. 746.) But when the defendant has some interest in the property, though not the owner in fee, or has an incumbered interest, the purchaser must act on his own judgment, and failing to realize anything the fault is attributable only to himself and he must abide the consequences. EIGHT OF PURCHASER TO REFUSE PAYMENT. 413 (Hammsmith v. Espey, 19 Iowa, 444; Jones v. Blumenstein, 77 Iowa, 361 — 42 N. W. Rep. 321; Holtzingcr v. Edwards, 51 Iowa, 383 — 1 N. W. Rep. 600.) Whore the judgment creditor becomes himself the pur- chaser he is chargeable with notice of any and all material facts evidenced and disclosed by the record, and if there are any irregularities therein he is conclusively presumed to know of their existence, as well as all those who hold under him. (Smith v. Huntoon, 134 111. 24 — 24 N. E. Rep. 371: Morris v. Roby, 73 111. 462; Boos v. Morgan, 130 Ind. 305 — 30 N. E. Rep. 141; Stewart v. Cross, 5 Gilm. 442; Shirk v. Thomas, 121 Ind. 147 — 22 N. E. Rep. 976.) RIGHT OF PURCHASES TO REFUSE PAYMENT OF HTS BID. When Judgment or Sale is Void. § 461. It is but in accordance with natural justice that a purchaser at a void judicial or execution sale should be en- titled to be released from the obligations of his bid, if he dis- covers the true nature of the sale prior to the actual payment of the amount. Manifestly, if the entire estate in the land is purported to be sold he should have what is purported to be sold, and if through w^ant of jurisdiction or other infirmity such estate will not pass to him by the proceedings he ought not to be compelled to pay, over his timely objections. If there are, for instance, several owners in common, and juris- diction is "wanting as to one or more of them, the purchaser can not be forced to pay the purchase price, because the court, which is the vendor in contemplation of law, can not convey to him the estate which it assumed to deal with and purported to have sold. The purchaser has a perfect right to suppose that pursuant to his bid he is going to become vested with the title held by the defendant, ward or decedent, for the promise to transfer this interest constitutes the consideration to support his bid. If the judgment, decree or order of sale be coram non judice and void for want of jurisdiction, or in case the deed pursuant to the sale will not invest the purchaser with the whole title held by the adverse parties to the action or proceeding, by reason of some other inherent defect or irregularity, then it 414 "\ OID JUDICIAL AXD EXECUTION SALES. is held there is, in contemplation of law, a failure of consid- eration to support the bid, which is fatal to a proceeding to compel a compliance therewith on the part of the purchaser. Upon general principles, no one is bound when the sale is void, whether it be in chancery or probate, or under execution. But in the alternative, where there is a defective title, or a total want of title, so that in fact the purchaser obtains noth- ing, notwithstanding the proceedings are perfectly regular, the purchaser must comply with the payment of his bid if he permits the sale to be confirmed, as the bid is made for such title as the defendant, ward or decedent may have, and the amount, is offered for such interest whether it be the entire interest in fee or none at all. This is the conclusive infer- ence after confirmation, and for this reason his objections must be urged prior to the making of the confirming order, for the rule that is applied against him also applies in his favor. (Humphreys v. Wade, 84 Ky. 891 — 1 P. W. Rep. 648; Toole v. Toole, 112 N. Y. 333 — 19 N. E. Rep. 682; Bird v. Smith, 40 S. W. Rep. 571; Boykin v. Cook, 61 Ala. 472 ; Burns v. Ledbetter. 56 Tex. 2S2 : Short v. Porter, 44 Miss. 533; Barrett v. Churchill. IS B. Mon. 3S7; Crouter v. Crouter, 133 X. Y. 55 — 30 XT. E. Rep. 726; Williams v. Glenn, 87 Ky. 8 — 7 S. W. Rep. 610; Bank v. Martin, 7 Md. 342 — 61 Am. Dee. 350; Threkelds v. Campbell, 2 Gratt. 198 — 44 Am. Dee. 3S4 ; Yoeum v. Fore- man, 14 Bush, 494; Burns v. Hamilton, 33 Ala. 210—70 Am. Dec. 570; Tilley v. Bridges, 105 111. 336; Bartee v. Thompkins, 4 Sneed. 623; Boggs v. Hargraves, 16 Cal. 559 — 76 Am. Dec. 561; Thompson v. Munger, 15 Tex. 523 — 65 Am. Dec. 176; Owen v. flatter. 26 Ala. 547 — 62 Am. Dec. 745; Jones v. Warnock, 67 Ga. 484; Bassett v. Lockhart, 60 111. 164; Dodd v. Xilson, 90 N. Y. 243; Smith v. Brittain, 3 Ired. Eq. 347; Post v. Leet, 8 Paige, 337; Den v. Zellers, 7 N. J. L. 153; McGowen v. Wilkins, 1 Paige, 120.) If the title fails on account of defects in the proceeding- of sale and he has paid his money he has a clear equity to be reimbursed for his payment which was utilized in the ex- tinguishment of debts and charges against the property. (Cunningham v. Anderson, 107 Mo. 371 — 17 S. W. Rep. 972; Metier v. Cole, 50 Ark. 361 — 7 S. W. Rep. 451; Nichols v. Shearon, 49 Ark. 75 — 4 S. W. Rep. 167.) If Purchaser Bought with Notice Can not Resist. § 402. If the purchaser buys with full notice of the exist- ence of defects in or incumbrances upon the title, he can not evade the consequences of his purchase by a repudiation and EIGHT OF PURCHASES TO EEFUSE PAYMENT. 415 abandonment of the sale, because, owing- to his own culpable negligence in buving when he know the title was not what the court assumed to transfer, he will not get a perfect title and must pay in any event. The wholesome maxim mri \Y. & S. 311.) And in New York it is held thai the purchaser has a right to expect and demand a marketable title and one free from a reasonable doubt as to its validity before he can be compelled to pay his bid. We are at a loss to see how this ruling can be 27 418 VOID JUDICIAL AND EXECUTION SALES. harmonized with the rule caveat emptor, but such are the de- cisions of that state. (Crouter v. Crouter, 133 N. Y. 55 — 30 N. E. Rep. 726; Miller v. Wright, 109 N. Y. 194 — 16 N. E. Rep. 205 ; Fleming v. Burnham, 100 N. Y. 1 — 2 N. E. Rep. 905; Cambrelling v. Purton, 125 N. Y. 610 — 26 N. E. Rep. 907; Jordan v. Poillon, 77 N. Y. 518.) Purchaser a Party to Proceedings and May be Compelled to Pay. § 467. It is a settled principle of law that a purchaser at a judicial sale, by virtue of his bid, submits himself to the juris- diction of the court in all matters relating to the sale, and to that extent becomes a party to the proceedings of sale. Pur- suant to the general principle of equity jurisprudence, when a party submits himself to the court for the purpose of per- forming, and who undertakes to do, any particular thing or act under its orders or directions, in case of refusal may be compelled, in the court wherein the proceedings are pending, to do what he has undertaken. After confirmation he is con- sidered the lawful purchaser, when he may be compelled to comply with the terms of his bid by process of court. Some- times this result is accomplished in a summary manner upon motion for a rule on the purchaser bringing him into court by attachment. (Maul v. Hellman, 39 Neb. 322 — 58 N. W. Rep. 112; Boorum v. Tucker. 51 N. J. Eq. 135 — 26 Atl. Rep. 456: Andrews v. O'Mahoney, 112 N. Y. 567 — 20 N. E. Rep. 374; Gregory v. Tingley, 18 Neb. 318 — 25 N. W. Rep. 88; Robertson v. Smith. 94 Ya. 250 — 26 S. E. Rep. 579; Har- bison v. Timmons, 139 111. 167 — 2S N. E. Rep. 982; Alfred v. McGahagan, 21 So. Rep. 802; Camden v. Mayhew, 129 U. S. 73 — 9 Sup. Ct. Rep. 246; McCarter v. Finch, 55 N. J. Eq. 36 Atl. Rep. 937; Thrifts v. Fritz, 101 111. 464; Vance v. Foster, 9 Bush, 389; Cazet v. Hubbel, 36 N. Y. 677; Thornton A'. Fairfax, 29 Graft. 669; Warfield v. Dorsey, 39 Md. 299; Requa v. Rea, 2 Paige, 339; Silvernail V. Campbell, 25 N. J. Eq. 465; Blackmore v. Baker, 2 Swan, 340; Hill v. Hill, 58 111. 239.) Purchaser is liable for Deficiency on a Resale. § 4G8. In Alabama it is held that in order to hold a default- ing purchaser to the consequences of his bid and his refusal to pay, no notice of further proceedings need be extended to him, upon the theory that being at least a quasi party to the •ceedings by reason of his bid he took upon himself and is charged with notice of all further proceedings upon his failure of compliance therewith. Upon a compliance he might have EIGHT OF PUECHASEB TO RECOVEB MONEY PAID. 419 demanded notice of any proceedings affecting his purchase, but by his failure he has forfeited such right and assumed the consequences resulting from his default, submitting his dereliction to the 'court for disposal pursuant to the course of law. (Grbl v. Randolph, 108 Ala. 601 — 18 So. Rep. 609.) Rut in other states notice of a resale must be served upon the defaulting- purchaser before he can be held liable for any deficiency on a resale. (Hill v. Hill, 58 111. 239; Hammond v. Cailleaud, 111 Cal. 206 — 43 Pac. Rep. 607; Harbison v. Timmons, 139 111. 167 — 28 N". E. Rep. 982; Stout v. Phillips Mfg. Co., 41 W. Ya. 339 — 23 S. E. Rep. 571; ('has,, v. •Join.;-, s^ Tenn. 761 — 14 S. W. Rep. 331; Thrifts v. Pritz, loi [11. 464; Wood v. Mann. 3 Sunnier, 318; Cooper y. Hepburn, 15 Gratt. 551.) To hold the purchaser liable for the deficiency on a resale, the second sale must he made upon substantially similar terms as the first, or else there is no liability, for where the resale is not on the same terms with the first the basis is shifted and the first purchaser can not be held liable. (Ramsey v. Hersker, 153 Pa. St. 480 — 26 All. Rep. 4:;:; ; Weasl v. Derrick, 100 Pa. St. 509; Singerly v. Swain, 33 Pa. St. 102; J5arnes v. Gordon. 9 Pa. St. 4L><3.) After confirmation of the sale and a non-compliance with the terms of his bid, the purchaser is liable for a deficiency on a resale, both in chancery and probate sales. (Pierson v. Fisk, 99 Mich. 43 — 57 N. W. Rep. 1080; Le Moyne v. Hardin, 132 111. 23 — 23 N. E. Rep. 414; .Mount v. Brown, 33 Miss. 566; Townshend v. Simon, 38 N.'J. L. 239; Campe v. Saucier, 68 Miss. 278 — S So. Rep. 846; Chase v. Joiner, 88 Tenn. Till — 14 S. \Y. Rep. 331; Tyler v. Guthrie, 33 S. W. Rep. 934; Stout v. Manufacturing Co., 41 \V. Ya. 339 — 23 S. E. Rep. 571; Capron v. Devries, 83 Md. 220 — 34 Atl. Rep. 251.) EIGHT OF PURCHASER TO RECOVER MONEY PAID. Rule Caveat Emptor Affecting Recovery. § 400. It is a well-settled proposition that the rule caveat emptor applies with all its rigor to execution and judicial sales. and if this is the rule, the further rule that the purchaser may require either one or the other of the parties to indemnify 420 VOID JUDICIAL AXD EXECUTION SALES. • him, for the purchase money he has expended, when he has received no title by virtue of the sale, is irreconcilably incon- sistent with the former. Upon principle it seems to us that reimbursement can not be exacted by the' purchaser under circumstances of this kind, unless by the institution of an in- dependent action with allegations of fraud, collusion or mis- representation ; and in the absence of these conditions the pur- chaser ought not to recover of either of the parties the money he has paid according to his bid, for unless fraud or the like is alleged and shown the action is based merely upon a mis- take of law, which admittedly is insufficient as a foundation for relief whether at law or in equity. Outside of allegations of fraud or collusion, or other like grounds, the purchaser asking relief is restricted to a mis- conception of the legal effect of the proceedings in the cause, or that his judgment was erroneous as to the judgment debtor's muniments of title to the property bought, in. These are manifestly entirely insufficient, in the absence of special stat- utory provision, upon which to base his claims for relief, when keeping in mind the maxim caveat emptor. Buying at his peril at execution and judicial sales, when he has not been imposed upon, and in the absence of excusable mistake or ignorance of material fact, not law, notwithstanding he pays his money and gets nothing, he must abide the consequences in silence and can not, on principle, recover from either of the parties the amount of his bid in an independent action. (Lindsay v. Cooper, 94 Ala. 170 — 11 Sc. Rep. 325; Burns v. Hamilton, 33 Ala. 210 — 70 Am. Dec. 570; Boggs v. Hargraves, 16 Gal. 550 — 76 Am. Dee. 561; Salmond v. Price, 1?, Ohio, 368 — 42 Am. Dec. 204; Home v. Nugent, 74 Miss. 102 — 20 So. Rep. 159; Laws v. Thompson, 4 Jones, 104; Lovelace v. Webb, 62 Ala. 271; Bland v. Bowie, 53 Ala. 152; Lore v. MeKenzie, 58 Ala. 115; Barnham v. San Jose, 24 Cal. 5S5; The Monte Allegre, 9 Wheat. 616.) But where the proceedings are utterly void it is held in some states that the purchaser who has no knowledge of the fatal infirmities therein may recover from the plaintiff who re- ceived it, the money he has paid at the sale. Such suit is maintainable upon the principle that by virtue of the invalid- ity of the proceedings there is a total failure of consideration and the purchaser may recover his money upon familiar prin- ciples of law. Though this rule seems just and expedient it RIGHT OF PURCHASER TO RECOVER MONEY FAID. 421 is apparently inapplicable to sales under execution in view of the rule ctoveat emptor. (Henderson v. Overton, 2 Yerg. 394 — 24 Am. Dec. 492; Bank v. Eltinge, 40 X. Y. 391 — 100 Am. Dec. 516; Rheel v. lli.es. 25 N. N , Chapman v. Brooklyn, 40 X. Y. 372; Sehweringer v. Hickok, 53 N, Y. 2S0; Flandrow v. Hammond, l 18 X. Y. 129 — 42 X. E. Rep. 511.) Reimbursement Compelled from Parties. § 470. In sales under execution where by mistake the lands of a stranger have been levied upon and sold and the pur- chaser without notice of such error paid the amount of his bid, proceedings in equity may in some states be prosecuted for the purpose of compelling reimbursement from the de- fendant, for whose benefit and use the purchaser has paid his money at the sale, and by means of which payment the judg- ment against him has been either wholly or partially satisfied. (McGhee v. Ellis, 4 I. ill. 241 — 16 Am. Dec. 124: Bunting v. Gilmore, 124 [nd. 113 — 24 X. E. Rep. 583; Reed v. Crosthwait, 6 Iowa, 219 — 71 Am. Dec. 406; Burns v. Ledbetter, 56 Tex. 282; Muir v. Craig, 3 Blackf. 293 — 25 Am. Doc. Ill; Warner v. Helm. 1 Gilm. 220; Julian v. Beal, 26 Ind. 220 — 89 Am. Dec. 460: Harrison v. Shanks. 13 Bush, 620: Jones v. Henry, 3 Litt. 435; Trice v. Boyd, 1 Dana. 436; Howard v. North. 5 Tex. 290 — 51 Am. Dec. 769; Hawkins \. Miller, 26 End. 173: Porter v. Jackson. 95 Ind. 210; Wilchowsky v. Cavender, 7;.' Mo. 192; .Mr I. ran v. Martin, 45 Mo. 393; .Muir v. Berkshire, 52 Ind. 149; Willson v. Brown, 82 Ind. 471; Westerfield v. Williams, 59 Ind. 221; Richmond v. Marston, 15 Ind. 134: Jones v. Blumenstein, 77 Iowa. 361 — 42 N. W. Rep. 321; Hitchcock v. Caruthers, 100 Cal. 100 — 34 Pac. Rep. 627.) In ease of failure of title because of defective proceedings due to the negligence of the selling officer in an execution sale, the law in some states permits the purchaser to prosecute his action in damages against the delinquent sheriff com- pelling him to respond in pecuniary compensation for his de- linquency. (Sexton v. Nevers, 20 Tick. 451 — 32 Am. Dec 225; McGhee v. Ellis, 4 Litt. 244 — 16 Am. Dec. 124; Harrison v. Shanks, 13 Bush, 620.) Reimbursement as a Condition Precedent to Recovery of Land. § 471. An eminently equitable ride obtains in some state- where it is held that if property is purchased by a strangeT to the proceedings in good faith, and under the belief that he airing the title, and the sale fails because of defects and irregularities, the defendant or heir can not sue to recover it 422 VOID JUDICIAL AND EXECUTION SALES. until he has first reimbursed the purchaser in the amount of his payment at the sale which was applied toward the judg- ment or in satisfaction of lawful claims or incumbrances against the estate. It is conceded that under the general rule of law the acquisition of rights against another is impossible by the voluntary payment of his obligations, but it is an ex- ception to this rule where the debtor's estate is subject to be sold lawfully under judicial process to satisfy liens or charges thereon, but where such authority is prosecuted irregularly or in an illegal manner. (Halsey v. Jones. S6 Tex. 4S8 — 25 S. AY. Rep. 696; Railway Co. v. Blakeney, 73 Tex. 180—11 S. W. Rep. 174; Kendrick v. Wheeler, 85 Tex. 247 — 20 S. W. Rep. 44; Fisher v. Bush, 133 Ind. 315 — 32 N. E. Rep. 924; Howard v. North, 5 Tex. 290—51 Am. Dec. 769; Meher v. Cole, 50 Ark. 361 — 7 S. W. Rep. 451; Valle v. Fleming, 29 Mo. 152 — 77 Am. Dee. 557; French a-. Garnet, 57 Tex. 273.) But this is not the case where the claim for which judg- ment was given was not a charge, lien or incumbrance upon the land, and the proceedings are void, in which case the owner need not refund the money as a condition precedent to recovering the land by suit in ejectment. (Northcraft v. Oliver, 74 Tex. 162 — 11 S. W. Rep. 1121; Stengall v. Huff, 54 Tex. 193.) Judgment Creditor as Purchaser. § 472. A void sale being absolutely without legal efficacy, as a necessary corollary, a purchaser thereat who buys and pays his money, acquires no estate in the property o-ren-ibly sold, though he has parted with his money. Upon principle, in the event the judgment creditor becomes himself the pur- chaser, he may have the apparent satisfaction of his judg- ment, caused by reason of the sale, vacated and a new exe- cution awarded. This is done when the title fails because the property levied upon was not owned by the execution defend- ant. The reason for permitting the vacation of the satisfac- tion in in sales by adminis- trator-, executors and guardians, the receipt and retention of the proceeds or r. portion thereof, by the heir or ward, when competent to act for themselves, is an irrevocable ratification of the sale, for it i- deemed unconscionable thai the heir, 426 VOID JUDICIAL AND EXECUTION SALES. devisee or ward should reap the fruits of the purchaser's pay- ment of money, appropriated to the discharge of debts or the like, winch were a lawful charge on the land, and at the same time be permitted to recover the same. This is a principle which is applied to minors as well as to adults, and they are estopped to deny the validity of the sale so long as they enjoy the benefits derived from the appropriation of the purchase money. They can not accept the benefits of the sale and simultaneously repudiate it as nugatory, and this upon the principle that while accepting the benefits they must bear the burdens of the transaction. (Iron Co. v. Fullenweider, 87 Ala. 5S4 — 6 So. Rep. 197; Maple v. Kusart, 53 Pa. St. 348 — 91 Am. Dec. 214; Wilmore v. Stettler, 137 Ind. 127—34 N. E. Bep. 357; Tracy v. Roberts, 88 Me. 310 — 34 Atl. Rep. 68; Oden v. Dupuy, 99 Ala. 36 — 11 So. Rep. 419; Halsey v. Jones, S6 Tex. 488 — 25 S. W. Rep. 690; Meher v. Cole, 50 Ark. 301 — 7 S. W. Rep. 451; Kendrick v. Wheeler, 85 Tex. 247 — 20 S. W. Rep. 44: Palmer- ton v. Hoop, 131 Ind. 23 — 30 X. E. Rep. 874; Craemer v. Holbrook, 99 Ala. 52 — 11 So. Rep. 830; Deford v. Mercer, 24 Iowa, 118 — 92 Am. Dee. 460; Jennings v. Kee, 5 Ind. 257; Walker v. Mulvean, 70 111. 18: Handy v. Xoonan, 51 Miss. 166; Parmelee v. McGinty, 52 Miss. 475; Robertson v. Bradford, 73 Ala. 116.) But a doctrine seemingly at variance with, this is main- tained in several states, under which the minors after becom- ing of age, may collaterally impeach the sale of lands by their guardian, the sale being void, though they have received the proceeds of the sale for their maintenance and education; this upon the ground that as infants they could have had no part in the proceedings. (Bachelor v. Korb, 78 X. W. Rep. 485; Wilkinson v. Filby. 2! Wis. 441: Requa v. Holmes, 26 X. Y. 338; Bowe v. Griffiths, 78 X. W. Rep. 20.) If the mortgagor receives and accepts the surplus from a sale of the incumbered premises although ignorant of the infirmities of the sale, and if, after becoming cognizant of the defects, retains such surplus, he is precluded from denying the title of the purchaser under the principles of estoppel. Enjoyment of the benefits and repudiation being inconsistent^ he can not claim or assert both simultaneously. (Brewer v. Nash, 16 R. I. 458 — 17 Atl. Rep. 857; Colton v. Rupert. 60 Mich. 318 — 27 X. W. Rep. 520; Brewer v. Nash, 17 R. I. 793 — 24 Atl. Rep. 832; Southard v. Perry, 21 Iowa, 488 — 89 Am. Dec. 5S7.) VOID SALES RATIFIED BY PARTIES IX INTEREST. 427 So in sales in partition and other judicial sales, a co-tenant, heir or defendant can not claim and receive his proportionate share of the proceeds and at the same time repudiate the proceedings by his denial of the validity thereof. (Fisher v. Siekraan, 125 Mo. 165 — 28 S. W. Rep. 435; Lemonds v. Stratton, 5 Tex. Civ. App. 403 — 24 S. W. Rep. 370; McClanahan v. West, 100 Mo. 309— 13 S. W. Rep. 674; Young v. Walker, 70 Miss. 813 — 12 So. Rep. 546; Galbraith v. Howard, 32 S. W. Rep. 803; Tooley v. Gridley. 3 S. & M. 493 — 41 Am. Dec. 62S; Merritt v. Home, 5 Ohio St. 307 — 67 Am. Dec. 298; Corwin v. Shoup, 76 111. 246.) Upon a similar principle, the owner of land sold for de- linquent taxes, accepting a part of the proceeds, being cogni- zant of the facts, recognizes and ratifies the validity of the proceedings precluding subsequent assault upon the grounds of their invalidity. (Clybm-n v. McLaughlin, 106 Mo. 521 — 17 S. W. Rep. 692.) Ratification by Conduct Otherwise Than by Receipt of Proceeds. § 476. A well-settled principle of equity forbid- one from afterward questioning the truth of his representations made at a time when lie anticipates others would act upon them, and who, relying upon such representations, acted and reaped a detrimental result therefrom. (Bank v. Frame, 112 Mo. 502 — 20 S. W. Rep. 620; Sehenck v. Sautter. 73 Mo. 46.) And upon similar principles where the owner, standing by, permits an innocent party to purchase his property and does not notify or admonish such purchaser of his claims, the owner's subsequent efforts to recover the property or assert his title thereto, will in equity be considered fraudulent, for by his acquiescence he is estopped from asserting dominion over the property. (Terrill v. Weymouth, 32 Fla. 255 — 13 So. Rpp. 429: Lindsay v. Cooper, 94 Ala. IT')— 11 So. Rep. 325; Cray v. Crockett, 35 Kan. 66- i ' Pac. Rep. 452; Tousley v. Board, 39 Minn. 419 — 40 N. W. Rep. 509: Thomp- son v. Simpson," 128 N. Y. 270 — 28 X. E. Rep. 627: Markham v. O'Connor. 52 Ga. 183 — 21 Am. Rep. 249; Storrs v. Barker, 6 Johns. Ch. 166 — 10 Am. Dec. 316; Dewey v. field, 4 Met. 381 — 3S Am. Doc. 376.) Manifestly, it is the duty of every defendant when his property is exposed to compulsory sale under an illegal 428 VOID JUDICIAL AND EXECUTION SALES. coercive process of law, or otherwise illegally about to be sold at a judicial or execution sale, to interpose his objections to such proceedings, and if he fails to do this, but participates in the bidding, or at or before the sale informs others that the purchaser would get a good title, he is concluded from urging such illegality thereafter, and his conduct works an estoppel against recovering the property or its value from the purchaser. (Mock v. Stuckey, 96 Ga. 1S7 — 23 S. E. Rep. 307; Allen v. Brown, 83 Ga. 161 — 9 S. E. Rep. 674; Lackey v. Pool, 97 Ga. 71S — 25 S. E. Rep. 174.) So if the judgment is void upon which the execution was issued, the purchaser in good faith complies with his bid by paying the money, and there is no protest made by the owner who was present, and who subsequently surrendered possession of the property to the purchaser and receiving the proceeds, and though residing in the immediate vicinity per- mitted the purchaser to construct valuable improvements upon the premises, he is estopped by his conduct from denying the purchaser's title, though he was ignorant of the illegalities in the proceedings at the time the sale occurred. (Hazel v. Lyden, 51 Kan. 233 — 32 Pae. Rep. 898; Reichert v. Voss, 78 Ga. 54 — 2 S. E. Rep. 558; Spragg v. Shriver, 25 Pa. St. 283 — 64 Am. Dec. 698.) Nor is it absolutely essential that the execution defendant should actually receive the whole or even any portion of the money, as it is sufficient if he is cognizant of the sale and acquiesces therein by his failure to object thereto, and by his consent in the application of the proceeds toward the payment of his debts, he is shut off from subsequently impeaching the sale upon the ground of its invalidity. (McComiell v. People, 84 111. 583; Spragg v. Shriver. 25 Pa. St. 281 — 64 Am. Dec. 698; Maple v. Kusart, 53 Pa. St. 348 — 91 Am. Dec. 214; Willard v. Willard, 56 Pa. St. 128; Mitchell v. Freedley, 10 Pa. St. 208; Fallon v. Worthington, 13 Colo. 559 — 22 Pac. Rep. 960.) So it is held that if the defendant receives notice that his property is seized under an execution against him, and ap- points an appraiser and makes no objections to the sale, sub- Mently surrendering possession of the property, he ratines the sale. (Parson v. Henry, 43 La. Ann. 307 — 8 So. Rep. 91S.) I'l RCHASEB IN CHANCERS S \ - 429 But is also held thai where it is nut in the power of the execution defendanl to prevent the distribution of the pro- ceeds, the same being appropriated among the judgment creditors by act of law, he is ao1 prejudiced l>\ the dis- tribution. (Henry v. McClellan, 146 Pa. St. :;i 23 AH. Rep. 385; Zuver v. Clark, n: Wallace v. Berdell, 41 Hun. 444.) But this rule is not universal as it is sometimes held that where the plaintiff becomes the purchaser it operates as an irrevocable satisfaction of the judgment, from the conse- quences <>f which equity will afford him no relief in the .nee of fraud, imposition or surprise. (Thomas v. Glazener, 90 Ala. 537 — 8 So. Rep. 153; Vattier v. Lyttle, i', Ohio, 4TT: Goodbar v. Daniel, ss Ala. 543 — 7 So. Rep. 25 1 : Holcomhe v. Loudermilk, 3 Jones L. 491: McCartney v. Kin.-. 25 Ala. 681.) Where the judgment debtor has no title and a third party buys under an execution sale, reimbursement in the amount contributed toward the satisfaction of the judgment may be enforced by proceedings in equity against the execution de- fendant notwithstanding no fraud can be imputed to him. (Wilchinsky v. Cavender, 72 Mo. 192: Muir v. Craig, 3 Blackf. 293 — 25 Am. Dee. 111 ; Julian v. Meal. 26 End. 220 B9 Am. Dec. 460; Howard v. North. ."> Tex. 290 — 51 Am. Dec. 769; Hawkins v. .Miller. 26 End. I.Chee v. Ellis, 4 Litt. 245 — 14 Am. Die 124: Warner v. Eelm, i Gilrn. 220; McLaughlin v. Daniel. 8 Dana. 182; McLean v. Martin. Mo. 393.) Where Judgment is Valid but Subsequent Proceedings Void. § 484. If the judgment itself is void and hence create- no ;ind the debl upon which it was rendered was not a charge upon the land, there is manifestly nothing to which the purchaser can possibly he subrogated, and accordingly he has no rights which he can assert, upon principle, against the judgment creditor. (Northeraft v. Oliver. 71 Tex. L62- n s. w. Rep. 1121; Manufactur- ing Co. v. Beyer, Tt Wis. 210 -42 X. W. Rep. 2 436 VOID JUDICIAL AND EXECUTION SALES. But where the execution is issued on a valid judgment and a purchaser in good faith acquires no title because of the pro- ceedings being irregular or insufficient to pass the same, he acquires by subrogation the rights of the judgment plaintiff to the extent of the lien of judgment discharged with his money. (Paxton v. Sterne. 127 Ind. 289 — 26 X. E. Rep. 557; Pool v. Ellis. 64 Miss. 555 — 1 So. Rep. 725 ; Duncan v. Gainey, 108 Ind. 579 — 9 N. E. Rep. 470; Caldwell v. Palmer, 6 Lea. 572; Short v. Sears, 93 Ind. 505; Burns v. Ledbetter, 54 Tex. 374; Bentley v. Long, 1 Strobh. Eq. 43_47 Am. Dec. 523; Jones v. Smith, 55 Tex. 383: Stults v. Brown, 112 Ind. 370—14 N. E. Rep. 230; Bennett v. Caldwell, S Baxt, 483; Dufour v. Camfrane, 11 Mart. 610 — 13 Am. Dec. 360; Howard v. North, 5 Tex. 290 — 51 Am. Dec. 769.) But there are casos which deny the right to subrogation to the lien of judgment discharged by the payment of the money upon the theory that the purchaser of land upon a sale under simple execution is a mere volunteer and the doctrine of sub- rogation has no application in such case. (Chambers v. Jones, 72 III. 279; Bishop v. C/Conner, 69 111. 431: Kinney v. Knoebel, 51 111. 112; Nowler v. Coit, 1 Ohio, 236 — 13 Am. Dec. 640; Richmond v. Marston, 15 Ind. 136.) So where the right to subrogation to the lien which the purchase money has removed is recognized, the purchaser's possession of the land will remain unmolested until the claim or lien is liquidated. This is the rule generally in cases where the execution sale is void though made upon a valid judg- ment, fraud not imputable. (Dufour v. Camfrane, 11 Mart. 607 — 13 Am. Dec. 360; Blackburn v. Clarke, 85 Tenn. 506 — 3 S. W. Rep. 505 ; McGee v. Wallis, 57 Miss. 638 — 34 Am. Rep. 4S4; Andrews v. Richardson, 21 Tex. 287; Elani v. Donald, 58 Tex. 316.) In some states the purchaser may recover from the judg- ment creditor if the proceedings are utterly void, and this upon the theory that there is no consideration for the pur- chase, (Elling v. Harrington. 17 Mont. 322 — 42 Pac. Rep. 851; Bank v. Eltinge, 40 N. Y. 391 — 100 Am. Dec. 516; Schweringer v. Hickok, 53 N. Y. 280; Henderson v. Overton, 2 Yerg. 394 — 24 Am. Dec. 492.) or where the failure of title is the consequence of defective proceedings due to the delinquency and misconduct of the DOCTRINE OF SUBROGATION DENIED. 437 officer conducting the sale, the right to prosecute an action in damages against such officer is conceded in other courts. (Sexton v. Nevers, 20 Pick. 451 — 32 Am. Doc. 2:25: Harrison v. Shanks. L3 Bn h, 620; McGhee v. Ellis, I Litt. 244 — 14 Am. Dec. 124.) DOCTRINE OF SUBROGATION DENIED. Result of Denial of the Right to Subrogation. § 485. It is an axiom of common honesty and a self-evident truth, as well as a principle of natural justice that one can not rightfully sell his property and retain the purchase money and the property also. This principle is applicable to judicial as well as to private sales. Execution and judicial sales are usually made in the enforcement of Hens or charges upon the property sold, and the money paid is utilized in the liquidation of such liens or charges. If the owner of the property can be permitted to avoid the sale, with no relief to the purchaser from any one he will not only still have his property as before the sale, but have its value augmented in the amount of the purchase money paid in the reduction of liens and charges. Pursuant to the great weight of authority, when the sale is avoided, the purchaser who has become such in good faith and who has paid his money accedes to the rights of the holder of the lien or charge for the payment of which the proceed- ings of sale were instituted. But the rule caveat emptor has been so rigidly enforced in void probate sales as to pre- clude the purchaser from being subrogated to the rights of the creditors whose claims his money has paid, notwithstand- ing the fact the claims were payable out of the land, and by implication of law were a charge thereon. Under the rule announced in Illinois one who purchases lands of a decedent at a sale by the administrator for the payment of debts of the ancestor, cannot be subrogated to the rights of the creditor whose debts are so paid, unless such debts are expressly made a charge upon the land by the decedent, but not where the same are a charge upon the land merely by implication of 'law. as such case does not come within any of the cases to which the doctrine is applicable. (Borders v. Hodges, 154 III. 498 — 39 N. E. Rep. 597; Bishop v. O'Conner, 69 111. 431; Chambers v. Jones, 72 111. 275.) 438 VOID JUDICIAL AND EXECUTION SALES. Formerly it was the rule in Indiana and Ohio that one who purchased under execution upon a valid judgment, vet the sale being inoperative by reason of insufficient proceedings to pass the title, could not claim subrogation to the rights of the judgment creditor because the purchaser occupied the position of a volunteer, nothing appearing that the money paid was for protection of his interests. (Richmond v. Marston, 15 Ind. 134: Nowler v. Coit, 1 Ohio, 519 — 13 Am. Dec. 640; Salmond v. Price, 13 Ohio. 368 — 42 Am. Dec. 204; Leib v. Ludlow, 4 Ohio, 469.) But in the former state the courts have affirmed the right of subrogation, and in the latter the right is established by provision of statute, as to sales under legal process. (Thompson v. Insurance Co., 139 Ind. 325 — 39 X. E. Rep. 306: Bunting v. Gilmore, 124 Ind. 113 — 24 N. E. Rep. 5S3 ; Muir v. Berkshire, 52 Ind. 149; Weherle v. Weherle, 39 Ohio St. 365.) The doctrine of subrogation is affirmed upon the principle that it is the policy of the law to offer inducements to pur- chasers to augment competition at compulsory sales, and that a purchaser at an invalid sale under legal process is not a vol- unteer, as the term is employed in connection with the doc- trine of subrogation. (Bunting v. Gilmore. 124 Ind. 113 — 24 N. E. Rep. 583; Bodkin v. Merit, 108 Ind. 293 — 1 X. E. Rep. 625.) But even where subrogation is denied, where the heir prose- cutes his bill to redeem or set aside the sale of lands sold, no circumstance of fraud being imputed to the purchaser, equity requires the complainant as a condition precedent to the prosecution of his suit to refund the money paid, and this upon the principle that asking equity he must do equity. (Borders v. Hedges. 154 111. 498 — 39 X. E. Rep. 597: Lagger v. Loan Association, 146 111. 283 — 33 X. E. Rep. 946: Kinney v. .Knoebel, 51 111. 112; Chambers v. Jones. 72 111. 275: Smith v. Knoebel. 82 111. 392.) EFFECT OF PURCHASER'S FRAUD OX RIGHT TO SUBROGATION. Obtains no Title and Forfeits Money Paid. § 486. Subrogation being a peculiar creation of equity, the familiar principle and maxim that lie who seeks equity must come with clean hands, has special applicability to this EFFECT OF PURCHASER^ FRAUD. L39 doctrine. While it is a general rule that one who buys at a void judicial sale, made under a valid judgment, or under proceedings to enforce a valid lien or claim against the prop- erty bought, is entitle.] to a return of his money paid toward the satisfaction of such judgment or claim upon a vacation of the sale, yet this rule has no application to a purchaser guilty with the imputations of fraud or misrepresentations. In accordance with a fundamental rule of equity juris- prudence, when actual fraud is imputed to a purchaser in procuring a title to land at either a private or public sale, he not only obtains no title, but by reason of the fraud, will forfeit the money he has paid. (Goebel v. O'Conner. 43 Neb. 49 — 61 N. W. Rep. 131; Phelps v. Benson, 161 Pa. St. 418 — 29 Atl. Rep. 86; Gilbert v. Hoffman. 2 Wat;-. 66—26 Am. Dee. 103; Elam v. Donald, 58 Tex. 316.) The supreme court of Pennsylvania very vigorously stated the rule of law in this regard when it said: " To say that a void title can stand as a security for purchase money, ad- vances, or anything else, is a contradiction in terms. It falls like an empty sack, because it has nothing to support it and can not support itself. The position that one win. is detected in a cheat by which he has acquired no title, shall, neverthe- less, be placed on a footing of one who has a good title, unless the money expended in the perpetration of the fraud be paid to him by the injured party, shocks our sense of right as much as it violates the analogies of the law ". (McCrasky v. Graff, 23 Pa. St. 321 — 62 Am. Dec. 336.) Nor is the purchaser protected as innocent from the simple fact that he did not actually participate in the commission of the fraud, if he had actual lcnowledge or notice thereof on the part of others, when he bought, for then he did so with his eyes open, which precludes the application of the doctrine of subrogation for his protection. (Mining Co. v. Ross, 20 Nev. 127 — 18 Pac. Rep. 358; Brush v. Ware, 15 Pet, 111; Hardy v. Harbin, 4 Sawyer, 536; Harden v. Bayden, -16 Cal. 341.) It is a universal and fundamental principle that any one who desires to invoke the equitable doctrine of subrogation in his behalf must come into court with clean hands, which manifestly precludes the right to relief from the consequences 440 VOID JUDICIAL AND EXECUTION SALES. of the wrongful acts which he has either himself committed or participated in their commission. Having committed the wrong himself \ its consequences place him in a position where the court is powerless to assist him in the reparation of his loss. (In re Hayes' Estate, 159 Pa. St. 381 — 28 Atl. Rep. 158; Rowley v. Towsley, 53 Mich. 329 — 19 N. W. Rep. 20; Devine v. Harkness, 117 HI. 145 — 7 N. E. Rep. 52; Johnson v. Moore, 33 Kan. 90 — 5 Pac. Rep. 406; Bank v. United States, 148 U. S. 573 — 13 Sup. Ct. Rep. 702; Martin V. Hodge, 47 Ark. 378 — 1 S. W. Rep. 694.) Purchase of Homestead in Contravention of Statute. § 487. A purchaser at a sale by an administrator under the order of the court, of a homestead theretofore set aside as such, is not guilty of a crime nor of fraud, when the sale is made in contravention of a statute making it a criminal offense to sell such homestead. While such sale is void in so far as the transfer of the legal title to the premises is concerned, still the purchaser is entitled to be subrogated to the right of the creditors # whose claims were paid with the money realized from the sale (Bond v. Montgomery, 56 Ark. 563 — 20 S. W. Rep. 525; Harris v. Watson. 56 Ark. 574 — 20 S. W. Rep. 529.) Fraudulent Purchaser May Assert Equities in Mississippi. § 488. Under the general rule which obtains almost every- where fraud precludes the idea of extending any relief to one to whom it may be imputed, yet in one state a diametrically opposite rule prevails, where a fraudulent purchaser at a judicial sale who has paid his money may assert the same equities as a hona fide purchaser. We think this ruling is not only in contravention of the plainest principles of equity and untenable upon every possible hypothesis upon which it may be sought to be justified, but stands alone among the judicial enunciations of ihe courts of the country in this regard. (Weaver v. Norwood, 56 Miss. 665; Grant v. Lloyd, 12 S. & M. 191.) RIGHT OT PURCHASER TO EQUITABLE ASSIST- ANCE IN SUPPLYING DEFECTS, OMISSIONS AND MISTAKES. Equity Will not Aid a Defective Execution of Statutory Power. § 480. Courts are inclined very strongly to protect an in- nocent purchaser for value who paid his money in good faith. BIGHT OF PURCHASES TO EQUITABLE ASSISTANCE. Ul His equities, as against him who received its benefits, are such as are founded upon the strongest considerations of common justice, and manifestly superior to those of him seeking to avoid the consequences of the sale, without having previously reimbursed such purchaser as a condition precedent to the avoidance of the sale. If the defect, omission or mistake which invalidates the sale has not produced a detrimental re- sult to the owner of the property, it is manifest that the equities in favor of the purchaser are of the strongest char- acter, and it would be the deepest injustice to turn him out by denving him any redress. He, as well as all others concerned in the sale may have labored under the delusion that every- thing about it was regular and perfect, and owing to spirited bidding the price realized may have been the full value, and the money dispensed pursuant to law. and yet some omission or imperfection environs the sale, fatal in its effects at law, and no title is acquired by the purchaser The proposition then confronting him is, will or will not equitv interpose to supply or rectify such defects or omis- sions? Will equity assist him by denying those in interest the privilege of availing themselves of the opportunity of suc- cessfullv urging such irregularities or omissions to defeat the purchaser when they have really suffered no injury? It is a firmly settled principle of equity jurisprudence that while equity will interpose under certain conditions to aid the de- fective execution of a power created by the act of the parties, it will refrain from lending its aid where a power created by statute is defectively executed. This rule confronts the pur- chaser at the very threshold in his application to a court of chancerv for relief, and is enforced with inexorable rigidity '..here an omission or mistake runs through the whole pro- ceedings anterior to the deed of conveyance in an execution or judicial sale, (Tatum v. Crooni. GO Ark. 4R7 — 30 S. W. Rep. 8S5 : Stewart v. Stokes. 33 \la. 494 — 73 Am. Dec. 429: Tiernan v. Poor. 1 G. & J. 216—19 Am. Dee. 225; Bartlett v. Judd. 21 N. Y. 200—78 Am. Dec. 131 ; Gardner v. Moore. 75 Ala. 394; Mason v. White. 11 Barb. 1S7; Abernethy v. Dennis. 49 Mo. 468: Bright v. Boyd. 1 Story, 486; Allen v. Moss, 27 Mo. 354; Gridley v. Phillips, 5 Kan. 349; Ware v. Johnson. 55 Mo. 500: Blythe v. Dargin. 68 Ala. 370; Gebb v. Howell, 40 Md. 387.) In this regard, Pomeroy in his able and exhaustive treatise on Equity Jurisprudence, at section 834 observes: 'The 442 VOID JUDICIAL AND EXECUTION SALES. defective execution of statutory powers, in the failure to com- ply with the prescribed requisites, can not be aided by equity ". Correction of Errors or Mistakes in General. § 490. It is sometimes held that mistakes are corrected in equity even where they occur in the records of proceedings of courts and exist in the records themselves, though the correc- tion is then accomplished by restraining the parties who might take advantage of them from doing so, or by compelling them to execute proper papers for the purpose of such correction. (Zingsem v. Kidd. 29 N. J. Eq. 516; Bartlett v. Judd, :n X. V. 100 — 78 Am. Dec. 131; Stewart v. Pettigrew, 28 Ark. 372: Boss v. Obry. 7 C. E. Green, 52.) If the grounds exist which authorize the interposition of a court of equity in a case of private sale, for similar reasons the court will assist the purchaser when a mistake occurred and the unconscionable advantage was obtained by one at a judicial sale. (Miller v. Craig, 83 Ky. 623 — 4 Am. St. Rep. 179: Dawson v. (Jood- YN-in, 15 B. Mon. 439.) However, where the rule obtains that equity will refuse to aid the defective or imperfect execution of a statutory power, the liberal rule promulgated by the courts of Xew York, New Jersey and Kentucky can not be enforced where the requisite- prescribed by statute have not been fully observed by the officer in conducting a judicial or execution sale. In such ■ the purchaser gets the whole title by virtue of the officer's deed or he gets nothing at all. He will not obtain an im- perfect equitable title which is susceptible of being perfected in chancery. If chancery could step in and interfere by dis- pensing with one of the statutory requirements in the sale con- summated under the forms of law, it can do so with as much propriety with any other provision in this regard, and upon similar principle could ultimately dispense with the entire provisions of statute. "But the truth is, the purchaser a^ these statutory sale* gets no imperfect equitable title which may be perfected in chancery; he gets the whole title which the infant had, or he gets no title whatever ". (Young v. Dowl in?. 15 111. 4-:.': Bright v. Boyd, 1 Story, 478.) RIGHT OF PURCHASER TO EQUITABLE ASSISTANCE. 443 But it has been hold that where two administrators sold land under an order of the court and the deed was executed by but one of them, that equity will enjoin the heirs from prosecuting their suit to recover the premises. (Wortman v. Skinner, 12 N. J. Eq. 358.) And where the proceedings were regular anterior to the sheriff's deed, which was defective for want of a seal, that the irregularity is one which equity will correct upon application therefor by bill in chancery, (Galbreath v. Dilday, 152 111. 207-38 N. E. Rep. 572.) as well as a misrecital in the officer's deed of the date of an execution. (Hawley v. Simons, 14 N. E. Rep. 7.) Errors or Mistakes in Proceedings and Deed. § 491 An inadvertent omission is tantamount to a volun- tary omission or neglect of duty, and can not be legitimately called an accident, and hence equity wholly disregards such infirmities. For like reasons it will not correct mere mis- takes, and will refuse to lend assistance in relieving a pur- chaser from the consequences of such mistake. It is upon this principle that equity can not relieve a purchaser by giv- ing him the tract of land really intended to be conveyed in a iudicial sale, but by mistake some other tract was embraced in the order of sale, or was levied on under execution, or only a part of the tract really intended to be disposed of was em- braced when the whole was intended. If the error is not de- tected until subsequent to sale, it is too late and equity will not correct the error. (Bowen v Wickersham, 124 Ind. 404-24 N. E. Rep. 983-. Clenden- nin K V. Ohl, 118 Ind. 46-20 N. E. Rep. 639; Dickey v. Beatty. 14 Ohio St. 389; Ward V. Brewer, 19 111. 291-68 Am. Deo. 596; Kauri, v. Kaylor, 95 Ind. 503; Miller v. Kolb, 47 Ind. 220; Rogers v. Abbott 3 Ind. 138; Mahan v. Reeve. 6 Blackf. 215; Reefer v. Frace, 86 lml. 81.) In an early Indiana case in partition under an order of the probate court, the land was described as being in section twenty-eight whereas it was in section twenty-three, and a suit in equity was instituted to correct the error, which ran through the entire proceeding. The supreme court Justice Blatchford in writing for the court, said: " A\ e think this 444 VOID JUDICIAL AND EXECUTION SALES. decree is erroneous. JSFo authority is cited, and we know of none, that shows a court of chancery to have jurisdiction in a case like that described in the bill ". (Mahan v. Reeve, 6 Blackf. 215.) And the supreme court of Arkansas in a late case in this regard said : " As the mistake was not only in the execution of the deed, but in the proceedings anterior to that, and upon which the sale was based, we think the court properly refused to reform the deed. * * * It was also necessary that the order of sale should sufficiently describe the land ordered to bo sold, for, without this, the sheriff had no power to sell. As this was not done, and as the defective description was copied by the sheriff in his advertisement and deed, the sale and deed were void, and beyond the power of a court of equity to cure". (Tatum v. Croom, 60 Ark. 487 — 30 S. W. Rep. 885.) But where a mistake was made in the description of land in a deed under execution, as well as a mistake in the deed to the judgment debtor, the purchaser may obtain the proper relief in a suit in equity to correct the defect. (Bradshaw v. Atkins. 110 111. 323.) Uncertainty of Description in Mortgage and Proceedings. § 492. If the sheriff's deed under execution in foreclosure proceedings of a mortgage upon land is void for uncertainty in the description of the property, it has been held that it could not be reformed in equity, because to do so would be to change the effect of the proceedings and decree whereon it is based, which manifestly can not be done in this manner. (Bowen v. Wickersham, 124 Ind. 404 — 24 N. E. Rep. 983: Dale v. Insurance Co., 89 Ind. 473: Lewis v. Owen, 64 Ind. 446.) It is however considered that it is within the power of equity to reform a mortgage and the foreclosure proceedings thereon by correcting a mistake, and this even after the same has been merged in a decree of foreclosure and deed executed thereunder, when it has reformed them all according to the true facts and intentions, going back to the original error and correcting all subsequent mistakes growing out of the same, unless to do so would interfere with the rights of purchasers or incumbrancers in good faith, for value, and without notice. BIGHT OF PURCHASER TO EQUITABLE ASSISTANCE. 445 (Quivey v. Baker, 37 Cal. 465; Davenport v. Covil, 6 Ohio St. 465; Strange v. Beach. 11 Ohio St. 283 — 78 Am. Dec. 308; Conyera v. Mercies, 75 Ind. 443; Bank v. Abbott, 20 Wis. 599; Blodgett v. llubart, 18 Vt. 414.) "Where the mortgage and proceedings in foreclosure prop- erly described the land but the officer's deed omitted to de- scribe a part of it, the deed was corrected in equity so as to include all the land. (Zingsem v. Kidd, 29 N. J. Eq. 516; Struble v. Neighbert, 41 Ind. 344; Foster v. Clark, 79 111. 225.) Equity Will Compel Officer to Make Proper Conveyance. § 493. If the deed of conveyance is defective by reason of errors or omissions, the correction may be accomplished, ac- cording to the rule announced in some adjudications, by com- pelling the proper officer to make a conveyance embracing a full and perfect description of the land, proceeding upon the theory that the power of the court to compel the execution of a proper deed in pursuance of a judicial or execution sale is a continuing one and is not exhausted until such a deed is made. (Lamb v. Sherman. 19 Neb. 6S1 — 2S N. W. Rep. 319; Jelks v. Bar- rett, 52 Miss. 315; Thornton v. Miskimmon, 48 Mo. 219; Stewart v. Stokes, 33 Ala. 494 — 73 Am. Dec. 429.) But in case of a probate sale this must be done before the fiduciary is discharged and the estate closed, for then the court has no jurisdiction over the administrator, executor or guardian. (Melton v. Fitch 125 Mo. 281 — 28 S. W. Rep. 612; Garner v. Tucker, 61 Mo. 427.) Chapter VIII. Curative Statutes, and Special Acts Authorizing Invol- untary Sales. ANALYSIS. Section 494. Effect and Constitutionality of Curative Statutes — Lim- itations upon Passage of Curative Statutes. 495. Irregular Judicial Proceedings and Sales May be Confirmed. 496. Limitations on Scope of Curative Statutes in General. 497. Void Judicial Sales and Proceedings Incurable. 498 Can not Contravene the Constitutional Guaranty of Due Process of Law. 499. ■ Can not Invade the Province of the Judiciary. 500. Effect on Pending Causes. 501. Defects not Jurisdictional not Capable of Confirma- tion. 502. Effect of Curative Statutes Limited to Original Par- ties. 503. Operation of Curative Statutes upon Tax Titles. 504. Involuntary Sales under Special Acts — General Observa- tion on Such Acts. 505. Theory upon Which Sales under Special Act Author- ized. 506. Grounds upon Which Sale Under Special Statute Au- thorized. EFFECT AND CONSTITUTIONALITY OF CURA- TIVE STATUTES. Limitations upon Passage of Curative Statutes. § 494. In a majority of the states statutes have been en- acted having for their object the validation of judicial pro- ceedings and sales theretofore had, and which were invalid or inoperative at law as well as in equity. Where there is no constitutional inhibition against the enactment of retrospec- tive statutes, it is well settled in the jurisprudence of this country that such statutes may be passed, but it is equally as well settled that curative or retrospective legislation will EFFECT OF CT/BATIVE STATUTES. n; not bo uphold in case it materially interferes with, or wholly overthrows vested rights, or imposes new or additional bur- dens, or invades the province of the judiciary. (Daniels v. Watertown, 61 Mich. 514-28 X. W. Rep. 673; Sidway v Lawson, 58 Ark. 117-2:? S. W. Rep. 64S: Bank v. Gibson, 60 Ark. 269 — 30 S. W. Rep. 39; Menges v. Dentler, 33 Pa. St. 495 75 Am. Dec. 616; Newman v. Samuels. 17 Iowa. 528; Brinton v. Seevers, 12 [owa, 389; Thompson V. Morgan. 6 Minn. 292; Wright v. Hawkins, 2S Tex. 452.) We apprehend that the supreme court of Indiana has gone farther than any other court in promulgating the doctrine that the legislature has authority to make a void thing valid by statute, provided only that by so doing no constitutional provision has been contravened, the extreme ground main- tained in this state being that in the absence of constitutional inhibition to the contrary the legislature may always validate void acts. (Walpole v. Elliott, is Ind. 258 — 81 Am. Doc. 358; Johnson v. Board. 107 Ind 15 — S N. E. Rep. 1; Gardner v. Haney, 86 Ind. 17: Bank v. Miller, 91 Ind. 441: Sithin v. Board, 66 Ind. 109: Grimes v. Doe. 8 Blackf. 371: Andrews v. Russell. 7 Blackf. 474: Davis v. State, 7 Ind. 316.) Irregular Judicial Proceedings and Sales May be Confirmed. § 495. If the infirmity in the sale or judicial proceeding is not of a jurisdictional nature, but consists merely of soi irregularity, it is generally conceded that a legislative enact- ment having for its purpose the healing or confirmation of such irregularity is constitutional and effective. Therefore, various irregularities or omissions in execution and judicial sales have been considered cured by such statutes, among them such as defective levies and returns, sales in contravention of appraisement laws, sales on executions issued upon judg- ments beyond a specified time, and the like, none of such defects being jurisdictional. (N orton v . Pettibone, 7 Conn. 319-18 Am. Dec. 116; Brickhouse v. Sutton , 99 N. C. 103- 5 S E. Rep. 380; Hasbrouck v. Milwaukee, 13 Wis 37 — 80 Am. Dec. 718; Menges v. Dentler, 33 Pa. St. 495 \m Dec. 616; Selsby v. Redlon. 19 Wis. 17: Boyce v. Sinclair.. 3 Bush, 261; Lane v. Nelson, 79 Pa. St. 407: Wildes v. Vanvoorhis, L5 Gray, 139.) So in Indiana the court held that in enacting a statute citr- ine defects or irregularities in the proceedings of judicial 448 VOID JUDICIAL AND EXECUTION SALES. tribunals, the legislature does not invade the judiciary or usurp judicial functions, and that a statute validating judg- ments affected with no other infirmity than the omission of the signature of the judge to the record of each day's pro- ceedings, is constitutional and valid. (Cookerly v. Duncan, 87 Ind. 332.) In accordance with the principle that the irregularities consisting in doing some act, or in the manner or mode of doing some act, which the legislature might have made im- material by the enactment of a prior statute, it is competent to make the same immaterial by a subsequent law, it has been held that deeds not executed in conformity to the mode pre- scribed by statute, may be validate by the passage of a cura- tive act subsequent to the execution of the same, in case no third party has acquired an interest in the property affected. (Sidway v. Lawson. 58 Ark. 117 — 23 S. W. Rep. 648; Apel v. Kelsey. 47 Ark. 413 — 2 S. W. Rep. 102; Chestnut v. Shane, 16 Ohio, 599 — 47 Am. Dee. 3S7; Johnson v. Richardson, 44 Ark. 365; Dentzler v. Waldin, 30 Cal. 138; Green v. Abraham, 43 Ark. 420; Journeay V. Gibson, 56 Pa. St. 57; Dulaney v. Tilgham, 6 G. & J. 461; Shank v. Brown, 61 Pa. St. 327; Watson v. Mercer, 8 Pet. 88; Newman v. Samuels, 17 Iowa, 528; Cupp v. Welch, 50 Ark. 294 — 7 S. W. Rep. 139.) Limitations on Scope of Curative Statutes in General. § 496. While judicial proceedings which are wholly void by reason of inherent jurisdictional defects can not be vali- dated by any legislative provision, yet where the infirmity consists of mere irregularities, notwithstanding these are of sufficient magnitude to render an execution or judicial sale inoperative, may still be validated by subsequent curative statutes. Or in other words, any matter which the legislature could have dispensed with in advance in a judicial or execu- tion sale, it may dispense with after their consummation by the passage of a curative statute. (Ellis v. Railway Co., 77 Wis. 114 — 45 N. W. Rep. 811; Ferguson v. Williams, 58 Iowa, 717—13 N. W. Rep. 49; Green v. Abraham. 43 Ark. 420; Johnson v. Board, 107 Ind. 15 — 8 N. E. Rep. 1; Gordon v. San Diego, 101 Cal. 522 — 36 Pac. Rep. 18; McCullough v. Estes. 20 Ore. 349—25 Pac. Rep. 724; Ward v. Lowndes, 96 N. C. 367.) In this regard the supreme court of Oregon in a late case said: " That body could not cure a defect arising from the EFFECT OF CURATIVE STATUTES. 449 failure to servo process in an action or suit in accordance with some prescribed mode, as it has no power to authorize an adjudication against the party to an action or suit without such service being made A failure to acquire original juris- diction over the person or property of a defendant in any ease would doubtless come under the same rule. But where a court obtains jurisdiction over a special subject-matter given to it by law, as probate courts do over the estates of decease I persons after an executor or administrator of the estate has heen duly appointed and qualified, and the court proceeded to exercise its jurisdiction in regard to a matter connected there- with without having complied with the mode which the legis- lature had prescribed, hut which it could have dispensed with, then the proceeding of the court, although irregular and de- fective, could l^e confirmed by subsequent legislation when justice would thereby he promoted ". (Mitchell v. Campbell. 19 Ore. 198 — 24 Pae. Rep. 435.) And the supreme court of Washington in a recent case in- volving the construction and effect of curative statutes said: " It is true the law then provided, in relation to sales of real estate, that a petition should first be presented to obtain an order therefor, and a citation issued thereon notifying' parties interested to appear at the time set for the hearing. But could not the legislature have dispensed with this petition? It seems to us, unquestionably, the legislature had such power, as the court acquired jurisdiction of the estate by the appoint- ment and qualification of the administrator; and administra- tion of an estate being a proceeding in rot), the legislature could have provided for a sale of the land without any petition or notice whatever. If this he true, the legislature could thereafter pass the statute in question validating sales where no petition had been filed, when the particular things therein specified appear. It is therefore immaterial, whether this petition in question and the citation to appear at the hearing thereon were void in consequence of the failure to give the prescribed notice, or for any reason. The respondent's title can safely rest on the subsequent proceedings, and the cura- tive act aforesaid, under the conceded facts in the case ". (Ackerscm v. Orchard, 7 Wash. 377 — 35 Pac. Rep. 605.) 29 450 VOID JUDICIAL AND EXECUTION SALES. In an early federal case a judicial sale of land in one state under the order of a court in another state was confirmed by the legislature of the former state, (Wilkinson v. Leland, 2 Pet. 627.) hut we take it that the doctrine announced in this case is no longer tenable under the federal constitution as it now stands. When the fourteenth amendment was adopted it manifestly put an end to the doctrine found in "Wilkinson v. Leland, and legislative transfer of property is impliedly if not expressly prohibited. Void Judicial Sales and Proceedings Incurable. § 497. Manifestly legislative power to pass curative stat- utes is restricted by a limitation prescribed by necessity and natural justice to the enactment of such laws as will not in- clude within their scope elementary matters, which it had no authority previous thereto to abrogate or dispense with, for the legislative department of government has no inherent power to declare by legal enactment that to be a judgment and obviously invest with legal efficacy, which theretofore was no judgment and was without force or effect because of inherent jurisdictional infirmities. It has no power to exer- cise judicial authority, nor can it take away property without due process of law. (Maguiar v. Henry, 84 Ky. 1 — 4 Am. St. Rep. 182: Conway v. Cable, 37 ju_ go_s7 Am. Dec. 240; Johnson v. Board, 107 Ind. 15 — 8 N. E. Eep. 1; Pryor v. Downey, 50 Cal. 388 — 19 Am. Rep. 056; McDaniel v. Correll, 19 111. 226 — 68 Am. Dec. 587 ; Bryson v. McCreary. 102 Ind. 1 — 1 X. E. Rep. 55; Israel v. Arthur. 7 Colo. 5—1 Pac. Rep. 438; Nel- son v. Rountree, 23 Wis. 367; Griffin v. Cunningham, 20 Gratt. 109; Lane v. Nelson. 79 Pa. St. 407; State v. Squires, 26 Iowa. 340; Richards v. Rote, 68 Pa. St. 248; Strasser v. Fort Wayne. 100 111. 443; Peckham v. Newark, 43 N. J. L. 576.) It is a settled rule that if there is a want of jurisdiction to pronounce the judgment or decree, or make the order or license of sale, no subsequent legislative validation can give validity to the same in the least degree. (Finlayson v. Peterson, 5 N. Dak. 5S7 — 67 X. W. Rep. 953; Perry v. Adams, 98 N. C. 167 — 3 S. E. Rep. 729; Roche v. Waters, 72 Md. 264 19 Atl. Rep. 535; Harrison v. Harrison. 106 X. C. 282 — 11 S. E. Rep. 356: Pryor V. Downey. 50 Cal. 3SS — 19 Am. Rep. 656; Hart v. Henderson. 17 Mich. 218; Hopkins v. Mason, 61 Barb. 469.) EFFECT OF CURATIVE STATUTES. 451 In a« comparatively late case in Alabama an act of the legislature of that state for the protection of purchasers of land sold by executors and administrators was under considera- tion, and the supreme court, in passing upon the constitution- ality of the act in so far as it soughl to validate void sales, expressed its views in this forcible language: " It is well settled, on the soundest conceivable principles, that no power resides in any legislative body to clothe a decree or judgment, which is absolutely void, with the habiliments of legal validity ". 'Robertson v. Bradford, 70 Ala. 385.) Cannot Contravene the Constitutional Guaranty of Due Process of Law. § 498. Legislative enactments providing for the arbitrary and involuntary transfer of the property of one man to an- other without due process of law, whether with or without compensation therefor, are a flagrant violation of funda- mental law, and possess not the least pretext of validity. (Oilman V. Tucker, 128 N. Y. 190 — 28 N. E. Rep. 1040j Maxwell v. Grace, 85 Ala. 577 — 5 So. Rep. 319; Cromwell v. MacLean, 123 N. Y. 474 — 25 N. E. Rep. 832 ; Board v. Bank, 86 Ky. 150 — 5 S. W. Rep. 739 ; Weltzer v. Kelly, S3 Ala. 440 — 3 So. Rep. 747 ; Embury v. Connor, 3 N. Y. 511 — 53 Am. Dec. 325; Palariet's Appeal, 07 Pa. St. 479; York V. Texas, 137 U. S. 15 — 11 Sup. Ct. Rep. 9.) Hence, a statute purporting to forfeit the title and estate of all unknown owners of military lots in case they fail to pro- duce, within a specified time, the evidence of their title thereto, is unconstitutional and void, because it is in effect the taking of the property of another without due process of law. (Scarf v. Trask. 73 Md. 378 — 21 Atl. Rep. 56.) Husband and wife made their wills, giving their property to each other, but by mistake each signed the other's will, and after the death of the former a special act of the legis- lature was passed authorizing the court to hear testimony, and reform the will in case it should find that a mistake had been made; it was held thai the right of the heirs of the husband had vested on his death and the act unconstitutional and void, as the husband in fact had executed no will to re- form. (Alter's Appeal, 07 Ta. St. 341.) 452 VOID JUDICIAL AND EXECUTION SALES Cannot Invade the Province of the Judiciary. § 499. It is a fundamental principle of jurisprudence that' the legislature can not, by the passage of a retrospective stat- ute, exercise a power of a clear judicial nature, for in nearly every state constitutional provision exists prohibiting the ex- ercise of such power by the legislature, because, if permitted to do so, the power of the judiciary would be invaded and encroached upon, and its most essential prerogative impaired. A final adjudication by a court of competent jurisdiction m the determination of the rights of the litigants would be made an impossibility were such legislation permitted, and the will of the legislature would supplant the ancient and established rules and principles governing judicial tribunals and judicial proceedings, resulting in the inevitable destruc- tion of the theory of our form of government, and violative of an elementary and fundamental principle constituting one of the distinctive elements thereof. Therefore, the operation and effect of curative statutes do not extend to cases where the proceedings involved had been, anterior to the enactment of the statute, determined to be void by the rendition of a judgment of a competent court to that effect. (Menges v. Dentler, 33 Pa. St. 495 — 75 Am. Dec. 616; Mayor v. Horn. 26 Md. 194: Lane v. Nelson, 79 Pa. St. 407; Gilman v. Tucker, 128 X. Y. 190 — 2S N E. Rep. 1040.) Statutes interfering with the force and effect of judgments rendered previous to their enactment, as a general rule, will not be upheld by the courts because they invade the province of the judiciary, and as an encroachment of one department of government upon another co-ordinate department. It is therefore beyond the power of the legislature to direct the performance of a judicial function in a particular manner, for to do so would be an invasion of the judiciary by the legis- lature. Such a statute would in effect be a legislative man- date to the court for the performance of its judicial functions in a particular manner, and at variance with every principle of our governmental organization. (Commonwealth v. Warwick. 172 Pa. St. 140 — 33 Atl. Rep. 373; Penny v. Mattoon, 2 Allen. 301—79 Am. Dec. 784; De Chastellux v. Fairfax, 15 Pa. St. 18 — 53 Am. Dec. 570; Davis v. Menasha. 21 Wis. EFFECT OF CUfiATIVE STATUTES. t53 491; Lewis v. Webb, 3 Greenl. 326; Taylor v. Place, 4 R. I. 324; Hill v. Sunderland, 3 Vt. 507.) Accordingly, as the power to grant a new trial is judicial', the legislature can not dired thai flu's lie granted by the court, nor can the fruits of a judgment, once rendered, be affected by legislative action, as the power of reopening a final sentence of a competent judicial tribunal determining the questions of private interests rests exclusively in the courts. (Oilman v. Tucker. 128 X. V. 190 — 28 X. E. Rep. 1040; Common- wealth v. Warwick, 172 Pa. St. 140 — 33 Atl. Rep. 373; De Chastellux v. Fairfax, 15 Pa. St. 18 — 53 Am. Dec. 570; Aldridge v. Board, 51 X. .1. L. 166 — 16 Atl. Rep. 695; Denny v. Mattoon, 2 Allen, 361 — 79 Am. Dec. 7S4.) The power of the legislature is limited under constitutional provision almost everywhere to the single field of legislative power, and judicial functions are entirely withdrawn from its consideration, leaving it without authority to interfere with the jurisdiction of courts or to take a ease out of the general and settled course of judicial proceeding. (Sidway v. Lawson, 58 Ark. 117 — 23 S. W. Rep. G4s ; Maxwell v. Goetchius, 11 Vroom. 3S3 — 29 Am. Rep. 242; Denny v. Mattoon, 2 Allen, 361 — 79 Am. Dec. 7S4; De Chastellux v. Fail tax, 15 Pa. St. is — 53 Am. Dec. 570; Colgan v. McKeon, 4 Zabr. 566; State v. Newark, 3 Dutch. 185: Richards v. Rote. 6S Pa. St. 24s ; Powers v. Bergen, 6 N. Y. 358: Shank v. Drown, 61 Pa. St. 320; Taylor v. Place, 4 R. I. 326; Jones v. Perry, 10 Yerg. 59.) Effect on Pending Causes. § 500. In Kentucky retroactive statutes affecting a pend- ing cause, notwithstanding otherwise unobjectionable, are in- effectual as against all private parties upon tin- ground that the legislative department of the commonwealth has no au- thority to invade the province of the judiciary. In this re- gard the court in a recent case said: " It is true if the legis- lature, during the pendency of litigation, were to pass an act having a retrospective effeet in favor of one of the litigants, it would be an invasion by one independent department of government of another and, therefore, unconstitutional ". (Marion Co. v. Railway Co., 91 Ky. 388 — 15 S. W. Rep. 1061; Thweatt v. Bank, 81 Ky. 1.) 454 YOID JUDICIAL AND EXECUTION SALES. The rule in Kentucky is at variance with that which ob- tains in other states, where it is generally held that a person can not acquire a vested right by the institution of a suit, un- less pending suits are excepted by the terms of the statute. Such statutes govern on the ground that the simple fact of bringing the suit will not vest in a party thereto any right to a particular decision, as the case must be decided according to the law as it stands when judgment is rendered, and not what it was when the suit was instituted. (Sidway v. Lawson. 5S Ark. 117 — 23 S. W. Rep. 648; Beard v. Dansby, 4S Ark. 183—2 S. W. Rep. 701: Johnson v. Richardson. 44 Ark. 365; Satterlee v. Matthewson. 16 S. & R. 169: People v. Supervisors. 20 .Mich. 95: Cowgill v. Long, 15 III. 202: Miller v. Graham. 17 Ohio St. 1; Adams v. Palmer, 51 Me. 4S0.) Defects not Jurisdictional not Capable of Confirmation. § 501. While it is generally conceded to be within the power of the legislature to pass healing statutes confirming and validating irregular judicial and execution sales, as well as the acts of public functionaries having honestly though imperfectly executed their powers in cases of such sales fairly consummated, or the attempted performance of acts in the conscientious supposition of the proper discharge of imposed official duties, such legislative authority does not extend to the confirmation and validation of fraudulent execution or judicial sales. It would infringe upon the powers of the courts by precluding the investigation and nullification of such sales when affected by the vitiating element of fraud. (Railway Co. v. Railway Co., 50 X. H. 50.) And it i- also held that where a sale under execution was declared void by statute when made after the return day of the writ, a healing statute declaring such a sale valid is considered unconstitutional and void, as the purchaser bought with his eyes open. (Dale v. Metealf. 9 Pa. St. 110.) Effect of Curative Statutes Limited to Original Parties. § 502. Curative statutes are admittedly retrospective in their effect, and hence even where their validity is conceded they are limited to the original parties to the litigation. Ac- cordingly, where the proceedings upon sales under execution i:i ; E( D OF CURATIVE STATUTES. £55 are so defective as to fail to pass the title from the defendant iu the writ to the purchaser, and subsequent to the defective sale the identical property Is sold by the defendant to an in- nocent person for value, such purchaser receives the title to the property, his rights to the same being regarded in law as vested, and therefore, not susceptible of being divested or impaired by any subsequenl curative act. A similar rule ob- tains in case of legislative provision having for its object the confirmation of deeds affected by an infirmity by reason of informality. (Daniels v. Watertown, 61 Mich. 514 — 28 X. W. Rep. 673; Bank v. Gibson, 60 Ark. 269 — 30 S. W. Rep. 39; Menges v. Dentler, 33 Pa. St. 495 _ 75 Am. Dec. 616; Harrison v. Harrison, 106 N. C. 282— 11 S. E. Rep. 350; Standi v. Gay, 92 N. C. 462.) Operation of Curative Statutes upon Tax Titles. § 503. Tn tax proceedings, if the legislature had ante- cedent power to authorize a tax, it has authority to cure, by statute, any irregularity or want of authority to levy such tax intrusted in and imposed upon the proper officer whose duty it is to make the levy, upon the hypothesis that whatever the legislature could have dispensed with in advance, it may do retroactively by the passage of an express statute providing that such irregularities or omissions shall not invalidate or nullify the proceedings, nor prejudice the rights acquired thereunder. (Richman v. Board. 77 Iowa, 513 — 42 X. W. Rep. 422; Sinclaire v. Learned, 51 Mich. 335 — 10 X. W. Rep. 072: Shattuck v. Smith. 6 X. Dak. 56 — 69 X. W. Rep. 5: Mining Co. v. Auditor. 37 Mich. 391; People V. Supervisors, 20 Mich. 95; Hart v. Henderson, 17 Mich. 2 is.) But where the proceedings are void because of an entire want of notice to the owner of the property, a subsequent statute purporting to validate them is unconstitutional and void as it attempts to dispense with something retroactively which it could not do in advance, the right to notice and being- heard when his property is sought to he condemned. (Board v. Fahlor, 132 Ind. 420- ::i X. E. Rep. 1112: Johnson v. Board. 107 Ind. 15 — 8 X. E. Rep. 1; Fahlor v. Board, nil Ind. 167.) Nor can a curative statute validate tax proceedings where the alleged assessment was absolutely void. (People v. Wemple, 117 X. Y. 77 — 22 X. E. Rep. 761.) 456 VOID JUDICIAL AND EXECUTION SALES. In deciding that a tax sale, void for want of notice, can not be validated by a healing statute, Justice Gray in writing for the supreme court of Massachusetts said: " We find it impossible to reconcile this statute with the fundamental prin- ciples, declared in the Constitution of the Commonwealth, that every subject has the right to be protected in the enjoy- ment of his property according to standing laws; that his property shall not be appropriated, even to public uses, with- out paying a reasonable compensation therefor; that he shall not be deprived of his property or estate, but by the judgment of his peers or the law of the land; and that the legislative de- partment shall never exercise the judicial power ". (Forster v. Forster, 129 Mass. 559.) So in a comparatively late case in Xew York involving the validity of a curative statute as affecting a void tax sale, Jus- tice Peckham in writing for a unanimous court very forcibly said: "What difference does it make to say that the legis- lature is acting only in the way of validating proceedings to collect a tax which in justice the owner of the land ought to pay? The answer is that the proceedings have been so fatally defective that no title has passed, and the owner has his title to his property the same as if no tax proceedings had been taken. Where is the authority in such ease for the legis- lature to itself transfer the title to his property to some one else? Jf the proceedings of the taxing power have been so fatally defective on account of a failure to comply with the requirements of the statute that no title to the property of the taxpayer has passed to the purchaser at the sale, I do not think there is any correct principle upon which can be based the claim that the taxpayer nevertheless holds his property from that time on at the mercy of the legislature and subject to its power at any time, so far as he is concerned, to validate and give life and effect to the otherwise void sale ". (Cromwell v. Mac-Lean. 123 N. Y. 474 — 25 X. E. Rep. 932: Gilman V. Tucker, 128 X. Y. 190 — 28 X. E. Rep. 1040.) INYOLUNTAEY SALES UJTOEK SPECIAL ACTS. General Observations on Such Acts. § 504. Private act- authorizing the involuntary alienation of the property or estates of infants and incompetents have INVOLUNTARY SALES UNDEE SPECIAL A.CTS. I"! long been forbidden by constitutional inhibition in aearly every state. Such constitutional prohibition even ante-dates the inhibition against the granting of special charters, incor- porated in the fundamental law of nearly if not every one of the states. A majority of the adjudications upon the sub- ject of special legislation authorizing the involuntary transfer or disposition of the property of persons under disability are old cases and constitute a matter of historical interest rather than of practical importance. The consideration of these private acts is perhaps not directly involved in the present sub- ject, though it is very closely allied with judicial sales, and a brief discussion of the same will be justifiable and perhaps not unprofitable. Private acts authorizing the involuntary sale of the prop- erty of infants and incompetents, without the previous ju- dicial adjudication and declaration concerning the necessitv of such sale, or the propriety thereof, arc to be condemned because in violation of the ancient and fundamental guaranty to every free man that he shall not be deprived of his prop- erty except by the law of the land, as expressed in Magna Charta, or in the language of modern constitutions, " without due process of law ". Such legislation is further untenable as an unwarranted invasion of judicial functions by the legis- lative power. Constitutional prohibition against the enactment of special laws authorizing or providing for the sale or conveyance of real estate, exist in Michigan and Arkansas; against the pas- sage of statutes providing for the sale or conveyance of real estate of persons under disability, in New Jersey. Wisconsin, Illinois, Minnesota, Nebraska, Virginia, Kentucky, "West Vir- ginia, Colorado, Nevada and California, and in Wisconsin, and Minnesota this inhibition also extends to their personal estate; in Indiana, Maryland and Oregon the enactment of special laws providing for the sale of real estate of persons under disa- bility by executors, administrators, guardians and trustees, is forbidden; and in Pennsylvania, Texas, Missouri, Louisiana 'and California, special laws affecting the estates of minors or persons under disability are prohibited. The constitutions of Louisiana, Colorado, California. 'Mary- land, Texas and Missouri forbid the passage of special or pri- 458 VOID JUDICIAL AND EXECUTION SALES. vate laws giving effect to informal or invalid deeds or wills, while that of West Virginia forbids the enactment of special laws authorizing deeds to be made for lands sold for taxes. The constitutions of Washington, Montana, Idaho, North Dakota, Utah and South Dakota, contain special restrictions against the passage of special legislation in general. Theory upon which Sale under Special Act Authorized. § 505. In some of the states where private acts directing the sale of lands of infants, whether for liquidation of the lia- bilities of the ancestor, or for the proposed benefit of the minor himself, were sustained, such statutes were held to be constitutional upon the theory that there was in fact no ju- dicial function involved in supplying the incapacity of such infants or incompetents, the legislature in the enactment of such statutes assuming to act only as parens patriae,and is not depriving the infant of his property, but merely assisting him in using the same in such a manner as he is otherwise unable to use it by reason of his incompetency; that but for his ina- bility to do so he would have utilized his property in the iden- tical manner as the statute directs, and that the ratification of the disposition of the same, by the court, is unnecessary and immaterial. (Railway Co. v. Blythe, 69 Miss. 939 — 11 So. Rep. Ill; Watkins v. Holman, 16 Pet. 25: McComb v. Gilkey, 29 Miss. 146; Hoyt v. Sprague, 103 U. S. 613; Boon v. Bowers, 30 Miss. 246 — 64 Am. Dec. 169; Wil- kinson V. Leland, 2 Pet. 627; Williamson v. Williamson. 3 S. & M. 715 — 41 Am. Dec. 636; Kibbey v. Chitwood, 4 Mon. 91 — 16 Am. Dec. 143: Davison v. Johonnot, 7 Met. 3SS — 41 Am. Dec. 448: Shehan V. Barnet, 6 Mon. 593.) Therefore, upon this theory legislative licenses directing the disposition of the property of infants or other incompe- tents laboring under disability and incompetent to act for themselves, have been sustained, for it is held that in the ab- sence of constitutional restraint, the legislature may pass special laws for the sale or investment of persons who are not Sid juris. In the absence of constitutional inhibition against it, there is perhaps no valid reason that can be urged that the exercise of such power should be exclusively confined to the judiciary. INVOLUNTARY SALES UNDEB SPECIAL ACTS. 4.V.") (Clusky v. Bums. 120 Mo. 567 — 25 S. W. Rep. 585; Dickens v. Carr, 84 Mo. 660; Hoyl v. Sprague, 103 U. S. 613; Davidson v. Koehler, 76 lnd. 398; Corgile v. Fernald, 63 Mo. 304; Thomas v. Pullis, 56 Mo. 211 ; Hindman v. Piper, 50 Mo. 294; Shipp v. Klinger, 54 Mo. 238; Stewart v. Griffin, 33 Mo. L3; Brenham v. Davidson, 51 Cal. 352.5 Manifestly, if the party affected in his property righl sui juris the proceeding is wholly void, as it would be equiva- lent to depriving him of his property withoul due process of law in violation of the constitutional guaranty in this behalf. (Clusky v. Burns. 120 Mo. 567 — 25 S. W. Hep. 585.) Grounds upon Which Sale under Special Statute Authorized. § 506. In Pennsylvania, Kentucky, Missouri, Massachu- setts and New York special statutes authorizing the sale of the lands of minors for investment of the proceeds, r for their maintenance, have been held constitutional upon the theory that they merely provide for the making of a change of invest- ment of such property, or satisfies legal charges upon the same, or pays debts to which the title is subordinate. (Cochran v. Van Surlay, 20 Wend. 365 — 32 Am. Dee. 570; Davison v. Johonnot. 7 Met. 388 — 41 Am. Dec. 44s : Kibby v. Chitw 1. I T. B. Mon . 9i_i6 Am. Dec. 143; Stewart v. Griffin, 33 Mo. 13 — 82 Am. Dee. 148; Clusky v. Bums. 120 Mo. 567 — 25 S. W. Rep. 585; Leggett V. Hunter, 19 N. Y. 445: Morris v. Clymer, 2 Pa. St. 277: Hindman v. Piper, 50 Mo. 294: Clark v. Hayes. 9 Cray. 426; Sohier v. Eospital, 3 Cush. 483; Sohier v. Trinity Church. 109 Mass. 1; Shehan v. Barrett, 6 T. B. Mon. 593; Rice v. Parkman, 16 Mass. 329 — 82 Am. Dec. 148; Davis v. Hilbig, 27 Md. 452 — 92 Am. Dec. 646; Shipp v. Klinger, 5 1 Mo. 238.) Special statutes have been supported where no apparent necessitv has been disclosed for the sanction of the conversion of the iands of one under disability, for the presumption is said to follow that such disposition is for the benefit of the incompetent. (Brenham v. Davidson. 51 Cal. 352: Davis v. Hilbig, 27 Md. 452- 92 Am. Dec. 040: Carroll v. Olmstead. 16 Ohio. 251; Thurston v. Thurs- ton, 6 R. I. 296; Clark v. Van Surlay. 15 Wend. 436; Snow hill v. Snow- hill, 3 N. J. Eq. 20.) Statutes authorizing sales both by guardians and adminis- trators have been upheld where no constitutional provision against the passage of such laws exist. (Todd v. Flournoy, 56 Ala. 99 — 2S Am. Rep. 758; Williamson v. Williamson, 3 S. & M. 715 — 41 Am. Dec. 636; Herbert v. Herbert, 4G0 VOID JUDICIAL AXD EXECUTION SALES. Breese, 354 — 12 Am. Dec. 192; Doe v. Douglass, 8 Blackf. 10 — 44 Am. Dec. 732: Kibby v. Chitwood, 4 T. B. Mon. 9i — 16 Am. Dec. 143; Munford v. Pearce, 70 Ala. 542; Gannett v. Leonard. 47 Mo. 205; Wat- son v. Oates, 58 Ala. 647; Tindal v. Drake, CO Ala. 170; Holman v. Bank, 12 Ala. 369.) Legislative sales of the property of 1x111101*5 to pay trie debts of their ancestor have been held void because of an invasion and usurpation of the judiciary, and further because such sales are in contravention of the constitutional guaranty against depriving anyone of his property without due process of law. (Jones v. Perry. 10 Yerg. 59 — 30 Am. Dec. 430; Lane v. Dorman, 3 Scam. 238 — 36 Am. Dec. 543 ; Davenport v. Young, 16 111. 548 — 63 Am. Dec. 320; Dubois v. McLean, 4 McLean, 486; Rozier v. Fogan, 46 111. 405; Opinion of the Judges, 4 N. H. 565.) INDEX. [References are to sections.] A. ACCIDENT, effect on rule caveat emptor, 459. ACKNOWLEDGMENT, omission of, or defective, 420. ACTIONS, effect of retroactive statutes on pending, 500. in personam distinguished from proceedings in rem, 195. ACQUIESCENCE, in sale, estoppel arising from, 476. ADMINISTRATION, conclusiveness of grant of, 151, 152, 155, 158. void when court has no jurisdiction, 179. when, had, 179. on estate of a living person, 150, 155, 178. sale in, depends upon proper grant of letters of, 215. proceedings in, indivisible though sale independent, 219. decree assigning residue of estate in, 98. ADMINISTRATOR, sales by, judicial, G, 9. sales by, are considered proceedings in rem, 9, 72, 233. sales by, are considered adversary in some states. 72, 158, 235. sales by, on claims barred by statute of limitations, 154, 224, 247. sah- by, when there are no debts, 159, 160, 247. sales by, of lands located in another county, 179. sales by, void when order appointing, vacated because void, 179. sales by, without additional bond given, 253, 317. effect of failure of, to take oath regarding sale, 254, 316. sales by, without notice of sale, 255. sales by, who must conduct, 299. sales by, without appraisement or valuation, 335. sales by, to raise excessive amount, 338. purchase by, effect of, 364, 367. sales by, in excess of what is necessary, 456. ADVERSE POSSESSION, sale of lands held in, 351, 352, 353. 4G2 ixdex. AFTER-ACQUIEED INTEREST, does not pass by sale under judicial process, 421, 422, 457. AMOUNT, sales to raise excessive, 336, 337. judgment in excess of jurisdictional limit, 100. below legal minimum, 102. APPEARANCE. general, denned, 82. special, effect of, 49, 87, 88. is not a waiver of want of jurisdiction of subject-matter, 56. when, confers jurisdiction, 56, 59. is a waiver of process, 59, 82. voluntary, of minors, 61. answer stricken out after, effect of, 83. general, waives defects in process or its service, 84, 85. unauthorized, effect of, 90, 91. application to remove from state to federal court, 89. APPELLATE COURT, has no jurisdiction if lower court was without, 53, 101. APPRAISEMENT, sales without, effect of, 332, 333. waiver of, 334. in sales by administrators and guardians, 335. wanting, effect of confirmation, 394. ASSIGNEES, sales by, are judicial, 5. ATTACHMENT, sales in proceedings in, nature of, 21, 95. sales under constructive service limited to property seized, 22, 152, 179. sales in, without notice, 92, 95. sales in, on constructive notice, cause of action originally stated, 96. sales of land in justice's court, 99. void, constructive service on, 179. sales based upon, title, 423. AUCTION, execution sales must be at, 310. sales at, when no by-standers, 328. B. BANKRUPTCY, sales in, are judicial, 5. [NDEX. 463 BID, when and by whom made, 327. officer cannot represent absent bidder, 327. nature of. 327. of judgment creditor when no by-standers, 328. right of purchaser to refuse payment of, 4fll, 462, 46 ~>. purchaser can not refuse payment of, when, 462, 463. BIDDING, combinations and devices to prevent, 360, 361. BOND, failure to give, by administrator or guardian, 253, 447. additional, or sale, 317. 318. want of additional, not fatal where no special healing act, 319. defective, or want of, cured by confirmation, when, 399, 400. c. CAVEAT EMPTOR, when defective title, or failure of title, 457, 458, 462. extent of rule of, 457, 458. rule, in Pennsylvania, 457. rule, applies to personal property, 457. rule of, in case judgment or sale void, 468. accident, fraud or mistake, effect on rule, 459. rule, where judgment creditor is purchaser, 460. where purchaser has knowledge, or was negligent, 462, 463. rule, affecting right of purchaser to recover money paid, 469, 470. rule, on right to subrogation, 4S5. CHANCERY SALES, ratification of, by receipt of proceeds, 475. COLLATERAL ATTACK, defined, 259, 427. when, will lie on judgments, 43, 44, 51, 54, 152, 194, 430, 438, 444. when process irregular, 66. will not lie when process served by unauthorized person, 73. conclusiveness of return of officer, on, 79, 80. on judgment, on unauthorized appearance of attorney, 91. on judgment on published process against resident defendant, 105. * complaint filed before proof of publication of summons, 121. presiding judge disqualified, 138. judgment beyond the issues, 146, 195. on judgment when want of jurisdiction appears affirmatively by the record, 44, 149, 181, 438. on order appointing administrator, 150, 394. on probate sale without notice, when, 156. after notice, failure to appoint guardian ad litem, 161. 464 • INDEX. COLLATERAL ATTACK — Continued. when, failure to appoint guardian ad litem, 162. on judgment where sole plaintiff was dead when rendered, 171. on sale of land located in another state, 170. on sale in probate of land of living owner, 178. presumptions as to jurisdiction on, 180, 429. on judgments of inferior courts, 185, 432. misconception in form of proceedings, 198. on probate sale when petitioner was incompetent, 210, 211, 213. falsity of facts in petition for order of sale, can not be, 231. when provisions of special healing statute contravened, 252, 318, 324, 447. on probate sale where no additional bond was given, 253, 317, 447. on sale unconfirmed, 25G. instances of, 428. insufficient service affirmatively appearing, 430. when, by third person, 435. on sale founded on satisfied judgment, 439. sales founded on constructive service of process, 445, 446. on tax sales, 446. fraud in judgment or sale, effect on, 450. COMMUNITY INTEREST, sale of, on judgment for separate debt, 347. CONCLUSIVENESS, of judgments upon parties and privies, 187, 196. of judgments void as to one only of several defendants, 188. of judgment, in what capacity, 188. of void judgment or decree, 194. of judgment outside of the issue, 195. of judgments in rem, 196. of judgments on title to property, 197. of judgments as to creditors, 199, 200. of order of sale in probate proceedings, 251. CONFIRMATION, what is, 379. general effect of order of, 385, 386, 473. is essential to the sale, 4, 32, 381. is a requirement in sales under execution in some states, 19,^0, 387. effect of, in execution sales, 20. effect of, on voidable acts or sales, 27. is an essential requirement under healing statutes, 256. effect of, where no notice of sale was given, 322. judicial sale at improper place cured by, 329. what irregularities cured by, 380. after, purchaser is regarded as the owner, 382. INDEX. 4.G5 CONFIRMATION — Continued. is discretionary in court. ."583, 384. by, court adopts proceedings of officer, 388. notice of motion for, 389, 300. how shown. 391. when, presumed, 392. by estoppel, 393, 473. effect of, when appraisement is wanting. 394, 402. cures defects in, or total want of notice of sale, 396. sale at wrong time, place or person, effect of, on, 397, 400. effect of, on departures from order or decree, 398. defective bond, or want of bond, 399, 400. execution improperly issued, 400. will not validate sales without order or notice, 401. defects not cured by, 402. sales by wrong persons not cured by, 402. one or more essentials of healing statutes wanting, 402. must be made before execution of deed, 412. collateral attack upon order of, 394. annulment of order of, 394. CONSTITUTIONALITY, of curative or retroactive legislation, 494. of laws validating irregular judicial sales or proceedings, 49.", 490. of statutes attempting to validate void judgments or sales. 497, 498. of curative statute violating guaranty of due process of law, 498. of laws invading province of judiciary, 499. of statutes attempting to validate sales void for fraud, 501. of laws confirming sales void for informalities, 501. of special statutes authorizing involuntary sales, 504, 505, 506. CONSTRUCTIVE SERVICE OF PROCESS, is insufficient to render personal judgment, GO, 108. personal service out of state equal to, CO, 78, 135. pleadings disclosing absence or non-residence of defendant, 69. amendment of complaint after, 96, 109. foreclosure of mortgages on, proceeding in rem, 97. amount in excess of jurisdictional limit, 100. what is, 103. not available in purely personal actions, 104, 108. ' on resident defendant, effect of, 105. is in derogation of common law, 100. materia] requirements of statute must be complied with, 106. essential facts must appear, 107. in what cases permissible, 108. affidavit for, what must contain, 110, 111, 117, 134. affidavit for, considered jurisdictional, when tiled. Ill, 112, US, 121. affidavit for, probative facts must appear in, llu. 30 466 INDEX. CONSTRUCTIVE SERVICE OF PROCESS — Continued, facts in affidavit for, inferentially stated, 114. affidavit for, must show action, one authorized by law for, 115. affidavit for, on information and belief, 116. relation of affidavit for, to publication, 119. false statement in affidavit for, as to cause of action, 120. verified complaint must be filed, 122. facts authorizing, shown by return, 123. in actions against defunct corporations, 124. order of publication, what must contain, 125. order of publication issued by clerk without order of court, 126. misnomer of party in affidavit for, and process, 127. order for, providing for unauthorized service, 128. order abridging time for appearance, effect of, 129. order or process published for too short time, 130. irregularities in published notice, effect of, 131. death of defendant during publication, 132. process published on non- judicial day, 133. on unknown defendants, 134. affidavit for, made by unauthorized person, 136. against unknown on petition against known defendant, effect, of, 137. on void attachment, 179. presumptions of jurisdiction on, 183, 431. in suits commenced after death of defendant, 190. CONVEYANCE, of land in another state by commissioners of court, 179. essential to transfer legal title, 403, 404. by whom made, 406, 407. to whom made, 408. when to be made, 409, 410, 411, 412. when, void because deficient in form or substance, 414, 415. description in, sufficiency of, and how construed, 419. defective, or omission of acknowledgment in, 420. what title or interest passed by, 421, 422, 457. relates back to inception of lien, 423. execution of proper, compelled in equity, 493. COURT, domestic, presumptions as to jurisdiction, ISO, 429. inferior, presumptions as to jurisdiction, 1S5. of probate, presumptions as to jurisdiction, 186. abolished before sale, 308, CREDITORS, conclusiveness of judgment on, 199, 200. judgment, as purchasei, 202, 370, 480, 472. INDEX. 467 CURATIVE STATUTES, general effect of, 22S, 239. provision of, 252. failure to give additional bond. 253, .'517. 318, 447. no oath taken regarding the sale, 254, 310, 447. notice of sale not given, 255, 324, 447. purchase in good faith, 257. limitation upon passage of, 494. validating' irregular judicial proceedings or sales, 495, 49G. limitation on scope of, 49G. have no application to void proceedings, 499. effect of, on pending causes, 500. defects not jurisdictional, not cured by, 501. effect of, limited to original parties and privies, 502. operation of, on tax titles, 503. D. DEATH. of defendant during publication of process, 132, 170. of sole plaintiff or defendant, 166, 171. not suggested by the record, 107. of one of several defendants before judgment, 1G8. execution issued after, of judgment debtor, 280, 281. writ issued after, of sole judgment creditor, 2S3. DEBTS, petition for order of sale must show, 220. DECEEE, holding conveyance of land in another state fraudulent, 177. vacated after sale, 173. sale of mortgaged property under, void, 188. is a finality upon issues raised, 197. directions in, must be pursued. 200. DEED. effect of unrecorded, on right of purchaser, 37S. in judicial and probate sales essential, 403. essential in execution sales, 405. in some states not necessary in execution sales, 405. under execution, by whom made, 400. by whom made in chancery and probate sales, 407. to whom made, 408. when, to be executed, 409, 410, 411, 412. confirmation must be first entered, 412. execution of, compelled, 413. when, void because deficient in form or substance, 414, 415. sufficiency of recitals in, 415, 416, 417. recitals in, as evidence, 418. 4G8 INDEX. DEED — Continued. description in, sufficiency of, and how construed, 419. acknowledgment in, defective or wanting, 420. interest or title conveyed by, 421, 422, 457. relates to inception of lien, 423. of sheriff not with warranty, 457. errors or mistakes in, corrected in equity, 491. execution of, compelled in equity, 493. DEFENDANT, rights and remedies on reversal of judgment or decree, 292. DESCRIPTION, void for uncertainty, 179, 245. of property to be sold in petition, 227. if, given in notice, must be substantially correct, 241. of property in order of sale, 248. must not be indefinite, 354. sufficiency of, in deed, and how construed, 419. fatally defective, can not be validated or cured in equity. 491. DEPARTURE, from directions in decree, 260. in case of special healing statutes, 261. in execution from judgment rendering identification impossible, 272. from order or decree cured confirmation, 398. DIRECT ATTACK, defined. 425. instances of, 426. no presumptions of jurisdiction on, 182. on sale, when made by motion. 486. when, made by suit in equity, 437. DISQUALIFICATION OF JUDGE, venders proceedings invalid. 139, 451. effect of, when statute contravened, 13S, 139. DISQUALTFED PURCHASERS, ( See Purchasers. ) DUE PROCESS OF LAW, comprehensive definition impossible, 36. interpretation of the term. 37. is the law of the land, :i~. notice essential to. constituted, 190. requires an opportunity to be heard. 39, 196. power to prescribe notice i- in state, 40. statute providing for constructive notice on both resident and non- resident alike, i> not, 41. curative statutes nui-t net violate constitutional guaranty of, eflVt of private net on constitutional guaranty of. 504. INDEX. 469 E. EN MASSE, (See Parcels.) ERRORS OR IRREGULARITIES, are unavailable upon collateral attack. 427, 428. EQUITIES. pre-existing, 378. EQUITY, will not aid defective execution ot statutory power, 489. assistance of, in correction of errors or mistakes, 490. correction of errors or mistakes in deed or proceedings, 491. will compel officer to make proper conveyance, 493. correction of uncertainty of description, 492. ESTATES, of decedents in general, 209. ESTOPPELS, equitable, as to judicial sales, 473, 474, 473. EXCESSIVE AMOUNT, sale to raise, 336, 337. EXCESSIVE QUANTITY, effect of sale of, 339, 340. EXECUTION, must be founded on valid judgment, 262. must not issue on satisfied judgment, 263, 289, 290. sale under, upon dormant judgment, 263, 284, 285, 307. must be awarded by judgment or by law, 264. must be sufficient in form and substance, 265. must emanate from proper court, 265. issuance against defendant authorized by law, 266. description of parties and for whose benefit issued, 207. must conform to the judgment, 268. sufficiency of, when not under seal, 269. should run in name of the state, 271. essential recitals in, 272. limitations on* issuance of, at common law, 273. limitations on issuance of, under statutes, 274. issued pending stay of proceedings, 275, 276. prematurely issued, consequences, 272. effect of appointment, without notice on minor, 172. 472 ixdex. H. HEALING STATUTES, l See Curative Statutes.) HEIRS, unknown, proceedings against, 191. HOMESTEAD, sale of, under execution, 343. sale of, in contravention of statute, 487. HUSBAND AND WIFE, notice in suits against, 71. sale of community interest of separate debt, 346. I. IMPEACHMENT OF EXECUTION SALES, (See Execution Sales and Collateral Attack.) IMPEACHMENT OF JUDICIAL SALES, (See Judicial Sales and Collateral Attack.) IMPEACHMENT OF JUDGMENTS, when may be collaterally, 44, 5-1, 152, 194, 434. when proceedings are coram non judice, 43, 44. when there is a want of jurisdiction of subject-matter, 54. because of unauthorized appearance of attorney, 90, 91. no presumptions as to jurisdiction on direct, 182. collateral, when by third party, 435. INADEQUACY OF PRICE, effect of, on sale, 355, 356, 357. effect of confirmation on, 400. INDEFINITE TRACT, sale of, effect, 354. INSPECTION, judicial record must be tried by, 427. INQUISITION, ( See Appraisement. ) IN SOLIDO, (See Parcels.) IRREGULARITIES, general effect of, on sale, 259. in case of special healing statute, 261. not fatal when jurisdiction exists, 45. in published notice, 131. sale on non- judicial day, 301. ixdex. 473 IRREGULARITIES — Continued, may be waived, 32ti. inadequacy of price is, 355, 356, 357. what, cured by confirmation, 380, 395, 396, 397, 398, 399, 400, 401, 402. unavailable on collateral inquiry, 427, 42S. may be validated by curative acts, 495. J. JUDICIAL PROCEEDINGS, when void, effect of, 48, 262. void when judge disqualified, 138. 139. must relate to matters, in issue, 146. who concluded by, 187. on what matters conclusive, 192. reversal of judgment, effect on sale, 291, 293. statutes declaring effect of, 454, 455. purchaser becomes a party to, 467. irregular, may be confirmed by curative statute, 495. if void can not be cured by legislative act, 497, 498. JUDICIAL SALES, definition of, 1. classes of, 23. in, court is the vendor, 2, 299. officer making, is agent of court, 3, 299. is incomplete until confirmed by court, 4. is a sale pendente lite, 4. what sales are, 5 6, 9, 10, 11, 12. administrators' sales are, 6, 32, 299. sales by assignees are, 5. sales in proceedings in admiralty are, 9. by guardians are, 12, 299. sales to enforce municipal liens are, 10. sales in proceedings for partition are, 8. in foreclosure of mechanic's and vendor's liens, 11, 12. in mortgage foreclosure, 8. administrators' sales in Rhode Island, are not, 7. to stranger under judgment subsequently reversed, 201. general effect of irregularities on, 259. reversal of judgment, 291, 293. by whom, must be conducted, 295, 297, 298, 299, 300. limitations on time of making, 301. on non-judicial day, 301. how, conducted, 310. without notice, 322. at improper or unauthorized place, 329. 474 INDEX. JUDICIAL SALES — Continued. in the absence of appraisement, 332, 333, 334, 335. deeds under, by whom made, 407. ratification of, by receipt of all or part of proceeds, 475. ratification of, by conduct otherwise than by acceptance of pro- ceeds, 476. irregular, may be validated by curative act, 495. if void, are incurable by special legislative act, 497, 498. occur in proceedings in rem, or quasi in rem, 18. and during pendency of litigation, 18. quasi- judicial sales, 19. sales in attachment on constructive service are, 22. are void when court without jurisdiction, 48. JUDICIARY, when curative statute does not invade, 495. curative statute can not invade province of, 499. JUDGE, disqualification of, 138, 139, 451. non-attendance of, 143. sitting outside of county, 144. cannot delegate authority, 151. JUDGMENT, effect of void, 194. in attachment on constructive notice, 21, 22, 92, 95. when may be impeached collaterally, 44, 152, 194. when, is coram judice, 45. is void when there is a want of jurisdiction of subject-matter, 48, 54. service of process or appearance necessary to render personal, 49, 59. to render personal, jurisdiction of defendant necessary. 59. must be based on written complaint or petition, 62. void if beyond the issues, 62, 146, 195. not void when based on irregular process or service. 63. void when based on process materially defective, 64. against minors, necessity of notice, 70. based on service of process by unauthorized person. 73, 76. based on written admission of service of process, 77. on personal service outside of state, 78. on unauthorized appearance, 90, 91. for amount in excess of jurisdictional limit, 100. when amount in controversy below legal minimum, 102. disqualification of jud^e, effect on judgment, 139. against deceased defendant when death not suggested by record, 167, 168. against sole defendant dead at time of rendition, 169. INDEX. 475 JUDGMENT — Continued. in favor of solo plaintiff (load at time of rendition, 171. against married women, 174. holding conveyance in another state fraudulent and void. 177. concludes parties and privies, 187. void as to one only of several defendants, 188. conclusiveness of, in what capacity, l ss - in suit commenced after death of defendant, 100. is conclusive on what matters. 192, 107. conclusiveness of, as t i creditors, 199, 200. reversal of, effect on sale, 201, 202. 291, 292, 293. enforcement of, not a judicial act, 258. sale under satisfied, effect, 263. sale under dormant, 2S5, 286, 2S7. 288. direct and collateral attack on, 425, 420, 427, 428. JUDGMENT IN REM, relief under, limited to property seized or subjected, 40, 95. how jurisdiction acquired to render, 52, 92, 95. on personal service outside of state, 78. seizure and notice, 9^ on cause of action stated, 9G. foreclosure of mortgages on constructive service, 97. decree assigning residue of estate, 98. JUDGMENT LIEN, is a general lien, 205. is creature of statute law, 20'5. when attaches, 207. on what property, attaches, 206. sales after expiration of, 203, 204! attaches to land conveyed in fraud of creditors, 208. is terminated by payment of judgment, 203, 439. after expiration of period of limitation, 287. JURISDICTION. definition of, 42, 45, 46. upon what dependent, 43. effect of a want of, 149. when judgment is coram non judice, 43, 44. 61, 139. 147. 152. 438. want of, appearing affirmatively upon record. 44, 149. 152, 181, 194. effect on proceedings when jurisdiction exists, 4.). essentials to right to adjudicate, 46. sources of, 47. granted by constitutional ami statutory provision, 48. intiuence of civil code on, 47. of subject-mat tor. how granted. 48. over subject-matter and person essential, 48. 476 INDEX. JURISDICTION — Continued. effect of want of, over person of defendant, 49. over person, how acquired, 49, 59. of court, limit of, 49, 50, 57, 175. may be conferred by consent, when, 49, 54, 56. over person or property not in state, 50. measure of, 51. over res, how acquired, 52, 54, 95. no, in appellate court when none below, 53, 101. of subject-matter under unconstitutional act, 55. want of, of subject-matter, appearance not a waiver, 5G. conferred after institution of suit, effect, 57. land lying in another state, 58, 175, 214. of defendant essential to render personal judgment, 59. of person not conferred by constructive service, GO, 179. of minors must be acquired pursuant to law, Gl, 172. acquired of plaintiff through his petition, 62. irregular process, or service of process, effect on, 63, 74. process materially defecth'e, effect, 64. defective service and failure of service, effect on, 65, 73. process left at last place of residence, 68. pleading showing defendant's absence or non-residence, 69. notice to minors, necessity of, 70. process served by party himself, 75. process served by unauthorized person, 76. defendant brought in state by fraud for service, 81. general appearance of defendant, 82, 83, 84. unauthorized appearance of attorney, 90, 91. in attachment proceedings, 92, 95, 96, 99. in sales by guardians, 93, 157. in proceedings in rem, how acquired, 95, 97. where amount in controversy is in excess of limit, 100. amount in controversy below legal minimum, 102. constructive service on resident defendant, 105. on constructive service of, essential facts must appear, 107. recitals of, in record, 107. affidavit for, jurisdictional, 111, 113, 114. affidavit for, sufficiency of, 115, 116. continues until final judgment when attaches, 140. is lost by appeal or removal, 141. suspended during intervals between terms of court, 142. non-attendance of judgment, 143. judge sitting outside of county, 144. exhausted over subject-matter, 145. justice of the peace absent on day of trial, 145. estates of living persons, 150. part of defendants only summoned, 153. INDEX. 477 JURISDICTION — Continued. debt barred by statute of limitation, lf>4. in probate sales, owner must be dead, 150. 154, 158. in sales by administrators. 156, 15S. to sell lands located in another county, l(i3. suit instituted in wrong county, 1U4. presumptions of, 180, 181, 429. JUSTICE OF THE PEACE, absent on day of trial, 147. defects in proceedings of, 148. execution issued on transcript from, 277. * L. LAND, of decedents, 209. located in another state, sale by guardian or administrator. 214. LEGISLATIVE, power to validate irregular or voidable sales, 495, 49G. power to validate void sales, 497, 49S. acts must not invade province of judiciary, 499. power to pass special acts authorizing sales, 504, 505, 500. LEVY. after expiration of active energy of execution, 303, 449. not essential where judgment is lien, 311. not necessary where judgment directs sale of specific property, 312. when levy essential to valid sale, 313. how, made, 313, 315. on personal property under execution, 314. essentials of a valid, 315. LICENSE OF SALE, (See Order of Sale.) LIEN. of judgments, 203-208, 2G3, 439, 287. for municipal improvements, 10, 179. of mechanics, 12, 24. of mortgages, 8. on vendors, 11. LIMITATION, on issuance of execution. 273. 274. writ issued after expiration of absolute. 2S7. writ issued and sale made after bar of statute complete, 305. statute of, how affects void sale, 452. essentials of plea of, 453. does not operate in futuro, 453. euect of statute of, under healing statute, 455. on passage of curativa acts, 494. 478 ixdex. M. MAEKETABLE TITLE, may purchaser demand, 466. MARRIED WOMEN, actions against, 174. MINORS, jurisdiction of. how acquired, 81, 172. voluntary appearance by, effect, 61, 86. notice to, necessity of, 70, 172. ratification of sale by, 4 77. legislative sales of property, 505, 506. MISCONCEPTION, of form of proceeding, effect, 198. MISNOMER. in process, -waived by appearance, S4. of party in affidavit for publication, 127. in published process or order, 27, 134. MISTAKE, effect of, on rule caveat emptor, 459. MORTGAGE, >ales in foreclosure of judicial, 8. when sale under, not judicial, 9. sales in foreclosure of, on constructive service. 97. foreclosure of, on published process against resident, 105. foreclosure of, against infant not made a party, 172. foreclosure of. on land in another state, 176. foreclosure of, nature of proceedings, 196. sale of property subject to, 350. void foreclosure of, ratification, 47"). subrogation in void foreclosure sale, 479. uncertainty in description and proceedings, 472. MUNICIPAL, foreclosure of, lien, 10 sale of property of, corporation under execution. 346. K NON-RESIDENTS, judgments against, when void, 50. NOTICE, constructive, what is, 103. in attachment proceedings, 92. 152. in suits against husband and wife, 71. is essential to due process of law, 37. 38, 196. lMiKX. 479 NOTICE — Continued. must be such as the law provides for, 38. power to prescribe notice in state, 40. manner of service of, to provide, 40. constructive service of resident under law permitting it, void, 41. to valid judgment, is indispensable, 59. actual, 66. leaving summons at last place of residence, 68. on minors, necessity of, 70, 161. in sales by administrators, when not jurisdictional, 72, 156, 233, 443. when, jurisdictional in probate sales, 72, 158, 226, 232, 235, 443. irregular service of, 73, 74, 23!). service of, by party to suit, 75. service of, by private person, 70. written admission of service of, 77. personal service of, outside of state, 60. 78. 103. 135. defendant brought in state by fraud, notice on, 8i. general appearance avoids, 82, 83. guardians, sales by, 93, 23!). necessity ot, in proceedings in rem, 05. constructive, on resident defendant, 105. constructive, is in derogation of common law, 10G. constructive, in what cases available, 108. affidavit for constructive, what must contain, 110, 112. by publication must he based on verified complaint, 122. irregularities in published, 131. death of defendant pending publication of, 170. waiver ot, by guardian, 238. must be substantially as required by law, 240. if description in, must be correct, 241. service of, in unauthorized manner, 242. provisions of statute as to length of, 243. of motion for confirmation, 3S9, 390. NOTICE OF SALE, effect of, 320, 325. want of, under healing statutes, 255, 324. want of, when not fatal, 321. when failure to give, fatal, 322. want of, in judicial sales, 323. may be waived, 326. defective, or want of, cured by confirmation, 396. 0. OATH, failure to take, concerning sale, 254, .".10, 447. statute requiring, concerning sale, how construed. 316. 480 INDEX. ORDER OF PUBLICATION, must contain essential particulars, 125. issued by clerk without authority, 126. providing for unauthorized service, 12S. abridging time for appearance, 127. published for too short time, 130. ORDER OF SALE, is the judgment whereon sale is founded, 210, 245. authorizing part only of administrators to sell. 212. based on petition stating ground not authorized by law, 216. is an adjudication upon the essential facts of petition, 231, 251. must not go beyond the petition, 244, 440. only land embraced in, can be sold, 245, 344. on petition to mortgage, 246. based on debts barred by statute of limitations, 247. description of property in, 248. is conclusive if court had jurisdiction, 251. land sold not embraced in, 442. PARCELS, sales en masse, 358, 359. PARTIES AND PRIVIES, who are, 187, 193. who concluded by judgment, 187, 192, 196, 197, 199. in petition for order of sale, 226. PARTITION, sale for, is judicial, 8. sale for, of lands of minors, 70. sale for, of land in another state, 176. PERISHABLE PROPERTY, sale of, pendente lite, 94. PERSONAL PROPERTY, sale under execution, levy on, 315. place of sale under execution, 331, 449. PETITION FOR ORDER OF SALE, must Ik- presented by competent petitioner, 210, 211, 213. by part only of several administrators, 212. is the initial step in probate sale, 215, 219. substantial compliance with statute regarding, essential. 216, 441. to authorize sale must show statutory cause, 216, 222. 4 11. essential facts defectively stated in, 218. must show the existence of debts, 220. averment in, of non-existence of personal property. 221. INDEX. 481 PETITION FOR ORDER OF SALE — Continued. must show necessity for sale of land 223. verification of. 22."). interested parties named in. 226. should describe the property. 227. liberal construction of, 229. jurisdiction depends on sufficient averment of facts in. 230. falsity of facts stated in, cannot be collaterally shown, 231. measures the extent of the order of sale, 244. lands sold not embraced in, 440. petition and order both failing to show necessity for sale, 455. PLACE OF SALE, sales at improper or unauthorized, 329. sales under execution outside of county, 330. of personal property under execution, 331. sale at wrong, confirmation of, 397. PREMATURE, issuance of execution, 276, 277, 278. issuance of writ, when objections raised, 278. PRESUMPTIONS, when record shows service on wrong person, 67. pleading showing defendant absent or non-resident, 69. of due publication, 107. as to jurisdiction, 180, 429. when jurisdictional facts are recited, 181. of jurisdiction on direct attack, 182. of jurisdiction upon constructive service of process, 183, 431. extent of rule as to, 184. lapse of time, 184. as to inferior courts, 185, 432. as to courts of probate. 186, 433. as to jurisdiction on collateral attack, 429. insufficient service appearing, 430. PRICE, inadequacy of, 355, 356, 357. PRIVATE ACTS, constitutionality of, 504, 505, 506. theory upon which, are sustained, 505. grounds upon which sule under, authorized, 506. PRIVATE SALES, when void, 310, 402. PRIVIES, (See Parties and Privies.) 31 482 index. PROBATE COURTS, whether superior or inferior, 186. presumptions as to jurisdiction, 433. PROBATE SALES, are proceedings in rem, 72, 155, 232, 233. also held to be adversary, 72, 158, 232, 234, 235. decree assigning residue of estate, in rem, 98. fundamental facts is death of owner, 156. when there are no debts, 159, 160, 247. when no guardian ad litem was appointed, 162. of lands located in another state, 175, 179, 214. of lands located in another county, 165. of lands of a living owner, 178. void when order appointing administrator vacated as void, 179. under petition presented by unauthorized petitioner, 210, 211. must be supported by petition for order or license, 215, 441. authorized only on allegations of statutory causes, 216, 222, 441. are independent proceedings, 219. to pay expenses of administration, 222. account of personal estate in application for, 223. on barred claims, 224, 247. parties to proceedings in, 226. policy of the law regarding, 229. jurisdiction to order, dependent on sufficient averments, 230. of part interest only, validity of, 250, 349. failure to give sale bond, 253. to raise excessive amount, 338. deeds under, by whom made, 407. of land not embraced in the order, 442. without notice of application, 158, 232, 234, 235, 443. rule caveat emptor, 459. ratification of, by receipt of proceeds, 475. subrogation in, 481. execution of proper deed compelled, 493. if void, not capable of legislative validation, 497. PROCEEDINGS IN REM, perishable property, sale of, 94. guardians' sales. 93, 157, 158. probate sales, 72, 156, 233. only property before court affected, 95. judgment on cause of action stated, 95. foreclosure of mortgages on constructive service, 97. decree assuming residue of estate, 98. actions against unknown defendants, 134. distinguished from actions in personam, 196. IXDEX. 183 PROCEEDS OF SALE, purchaser not bound 1o see to proper application of, 374. purchase money not fully paid, 375. must be paid to proper officer, 377. acceptance of, ratification of sale, 473, 474. PROCESS, constructive service of, what is, 103. must be served within territorial jurisdiction of court, 59. constructive service not sufficient to render personal judgment, GO, 104. personal service of, beyond state, is constructive service of, GO, 135. on minors, 61, 86, 161. irregular service of, G3, 73, 239. wanting in' substance, 64. defective service and failure of service, 65, 239. irregularities in, 66. record disclosing service of, in particular manner, 67. leaving, at last place of residence, 68. service of, by unauthorized person, 73, 76. service of, by party to suit, 75. service of, by private person, 7G. written admission of service of, 77. acceptance of service of,' outside of state, 78. service of, on defendant brought into state by force or fraud, 81. general appearance waives, 82. general appearance waives defects in, 84. jurisdictional defects in issuance of, waived by appearance, 85. publication of, must be valid, 107. death of defendant pending publication of, 132, 170. published on non-judicial day. 133. constructive service of, on unknown defendant, 134. affidavit for constructive service of, made by wrong person, 136. served on part of several defendants only, 153. service of, in another state in suit to vacate conveyance, 179. recital of service of, contradicted by record, 181. PROPERTY, should be described in petition for order of sale, 227. not subject to sale, 341, 342. 344. 345. 34G, 347. sale of partial interest in, 348, 349, 350. PUBLICATION, of process for too short time, 130. death of defendant pending, of process, 132, 170. of process on nan-judicial day, 133. against unknown on petition against known defendant, 137. of notice, statutory piovi=»ions as to length, 243. 484 INDEX. PURCHASER, in good faith under healing statute, 257. in good faith, effect of reversal of judgment, 201, 293. at sales void for wan!-, of jurisdiction. 294. fraudulent practices of, to prevent competition, 360, 3C1. sale to disqualified, 362, 363, 364, 365. 366, 367. 454. effect of secret fraud on, 368, 369, 372, 374, 376, 37S. judgment creditor as, 370. 472. innocent, from fraudulent vendee, 373. caveat emptor, defective title or failure of title, 457. rule caveat emptor, when sale void, 45S. must look to jurisdiction of court, 458. generally rule caveat emptor applicable, 457, 458, 459. having knowledge of defective title. 459. 462. rule caveat emptor when creditor is, 460. right to refuse payment of bid, 46i, 462. 465. when can not refuse payment of bid. 463, 464. is chargeable with facts disclosed by records, 464. demand marketable title, 466. is party to proceedings and may be compelled to pay, 467. liability of, on refusal, 468. right of, to recover money paid, 469, 470. reimbursement of, before recovery of land can be had, 470. right of, to subrogation in chancery sales. 478. right of, to subrogation in void mortgage foreclosure, 479. right of, to subrogation in foreclosure of tax liens, 479. right to subrogation in probate sales, 481. right to subrogation in execution sales, 483. effect of, fraud on title, 486. right of, to equitable assistance, 489, 490, 491, 492, 493. Q. QUANTITY, sale of excessive, 339, 340. E. RATIFICATION, act of parties on void sales, 27. of void sales, 393. 473, 474. 475, 476. by conduct otherwise than by receipt of proceeds, 476. by minors, 477. RECEIVER, execution sale of property in hands of, 309. ixdkx. 485 RECITAL, jurisdiction in record, 180, 181, 430. in record on constructive service, 183. what recitals essential in execution, 183. sufficiency of, in deed under execution, 415, 410, 417, 418. imports verily, lso, 181, 430, 458. RECORD, purchaser is charged with notice of facts disclosed by, 4o4. REIMBURSEMENT, of purchaser as condition precedent to recovery, 471. REFORMING, sheriff's deed, 491. mortgage and foreclosure proceedings, 492. RELATION, of deed and title to lien, 423. to lieu of attachment, 423. of deed to mortgage lien, 42'). of deed in sale under several executions, 424. RESALE, purchaser's liability on, 4G8. RETROACTIVE STATUTES, (See Curative Statutes.) RETURN". conclusiveness of, after judgment, 66, 70, 80. irregularity in, 66. record disclosing service on wrong person, < ; 7. facts authorizing constructive service shown by, 123. of sheriff under execution levy, 314. omission of, or defective, 37ii. REVERSAL OF JUDGMENT, effect on sale to stranger, 201, 291, 293. when judgment creditoi is purchaser, 202. rights and remedies of defendant upon, 292. for want of jurisdiction, 294. s. SALE, at improper or unauthorized place, 329. under execution outside of county. 330. of property not subject to execution, 341-347. of land not embraced in order, 344. of partial interest when whole owned by defendant, 348, 349, 350. of land in adverse possession, 351, 352, 353. 486 IJ*DEX. SALE — Continued. of undesignated tract, 3.54. to disqualified purchaser, 302-367. effect of fraud on, 36S. vacated by direct proceeding, 43G. vacated by suit in equity, 437. without notice of application for, 443. of land located in another state, 444. upon judgment on constructive service, 445. under execution at wrong time and place, 448. what title or interest passes, 459. SALE BOND, (See Bond.) SCOPE, of curative statutes in general, 49G. SEAL, execution not under, 2G9, 449. SHERIFF, purchase by, at sale conducted by him, 365. SPECIAL ACTS, authorizing involuntary sales, theory upon which sustained, 505. grounds upon which sales authorized under, 506. STATUTES, _ authorizing sales does not include mortgage or exchange, 249. repealed before sale, 308. requiring oath concerning sale, how construed, 310. requiring notice of sale, 325. providing for appraisement, how construed, 332, 333, 334, 335. of limitations, effect on void sales, 452. essentials to plea of statute of limitations, 453. declaring effect of judicial proceeding, 454, 455. validating^ irregular judicial proceedings. 494-499. limitations on scope of curative statutes. 49G. authorizing involuntary sales, 504, 50.5. 50G. STATUTE OF FRAUDS, docs not apply to judicial sales as a rule, 32. affecting execution sales, 34. sales by administrators in Illinois, 33. wlint sufficient to satisfy, 35. STAY OF PROCEEDINGS, execution issued pending, 27-5. 276. STYLE, writ should run in name of state, 271. INDEX. 487 SUBROGATION, right of purchaser to, in chancery sales, 478. in void mortgage foreclosure sales, 479. purchaser's righl to, in foreclosure of tax liens, 480. in probate sales, 481. right of purchaser to subrogation when sale i- void, 182, 484. in sales under execution, 483. right to, denied, 485. fraud of purchaser on right to, 48(1, 488. right to. when homestead was sold in contravention of law, 487. SUNDAY, judicial or execution sales on, 301. T. TAX SALES, in foreclosure of tax liens, 446. rule caveat emptor in, 458. purchaser's right to subrogation in void, 480. TAX TITLES, operation of curative statutes on, 503. TIME OF SALE, under execution on other day than that provided by law, 302. sale at wrong, confirmation, 397. TITLE, to land located in another state, 175. conclusiveness of judicial determination upon, 198. sale of naked, legal, 342. passes by deed, 403, 404. obtained by purchaser, 421, 422. defective, or failure of, rule caveat emptor, 457. may purchaser demand marketable, 460. u. UNDESIGNATED TRACT, sale of, 354. UNKNOWN II K1US. proceedings against, 191. statute> purporting to forfeit title of, 498. unrecorded deeds, 378. V. VALUATION. (See Appraisement.) 488 index. VARIANCE, in execution from judgment, 272. VENDOR, liens of vendors, foreclosure sale judicial, 11. who affected by vendor's liens, 11. VERIFICATION, of petition for order of sale, 225. VOID AND VOIDABLE, distinction between, 25, 26, 27. denned, 26, 475. what is voidable sale, 26. voidable act or sale may be validated, 27. who bound by voidable act, 27. use of terms, 28. meaning attributed to, 29. when act or deed is void, 29. void sale incapable of confirmation, 29. degree of voidness, 30. qualified void acts, 31. statutes declaring sales void, construction, 454, 455, 456. effect of confirmation, 473. void proceedings or sale can not be validated by statute, 497. VOID SALES. classification of, 27, 29. can not be confirmed, 29, 473. convey no estate or interest, 29. under execution upon judgment on constructive service, 60. foreclosure of mortgage against resident on published process, 105. sale by administrator of living owner's lands, 150, 158, 178. by administrator on barred claim, 154, 224, 247. by administrator without notice. 158. in mortgage foreclosure against infant not a party, 172. of land located in another state, 175, 176, 444. by administrator when order appointing, subsequently vacated, 179. upon petit. on presented by unauthorized petitioner, 210, 211. of partial interest only, or interest subject to mortgage, 250, 348, 349. where essential of healing statute disregarded. 252. failure to give sale bond. 253. 317, 318. where no oath concerning sale was given, 254, 316. no notice of sale given, 255, 324, 447. sale not confirmed, 256. based on satisfied judgment, 263, 289, 307, 439. * execution sale under writ in officer's own favor, 298. of property in hands of receiver. 309. execution sales outside of county, 330. INDEX. 48U \ OID SALES — Continued. of persona] property at unauthorized place, 331. without appraisement or inquisition, 332. lands sold not embraced in order, :!44. property of municipal corporal ion under execution, 34G. community interest on separate debt, 347. lands held in adverse possession, 351, 352. fraudulent practices of purchaser, 3G1, 363. ■ under several executions when one or more void, 424. tax sales, 446. instances of, 438-451. w. WAIVER, of appraisement, 334. of notice of sale, 326. of notice to minors, 238. appearance of defendant, of fraud in getting in state, 81. WILL, if provides for sale, court without authority to order, 245. 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