Campbell et al. v. Brown et al., 6 Howard 230

Mr. Justice Trotter, after stating the facts in the case, delivered the opinion of the court. The question is, whether the decree of the probate court, rendered without notice, either actual or constructive, to the heirs of McCarroll, is void and inoperative. That it is so, we have no doubt. One of the special pleas alleges that the deceased left heirs, who were living within the county where the court sat, and that they had no notice of the proceedings, and were not made parties thereto. That no citation was issued to them, nor was any served on them. The demurrer confesses these facts.

It surely cannot be a matter of doubt, that the decree of the court is wholly void. It is not only against the express provisions of the statute, which requires notice of the proceeding to be issued to all persons interested, but stands opposed to the very first principles of justice. 10 Pet. Rep. 161; 1 Dev. Rep. 187. No man can be considered to lose his life, liberty or property by a judgment or decree, who has no notice of the proceeding against him, and consequently no opportunity to contest it.

It is a principle universally recognized, that no judgment or decree is binding unless the court which pronounced it has jurisdiction, as well of the person as of the subject matter. 15 J. R. 141; 19 do. 33; 11 Wend. 652. The court below should therefore have overruled the demurrer to the .plea; and, for the same reason, should have admitted the record of the proceedings of the probate court to be read to the jury. This record shows the same facts relied on in the special plea.

It was rejected by the court, on the ground that, though the action of the court was void, it was only so in regard to the heirs, and that it could not be attacked in a collateral suit. This is undoubtedly the correct view of the subject, in cases where the judgment is irregular merely, and therefore only voidable. But it is equally true that a judgment by a court which has no jurisdiction is absolutely void, and may always be assailed. Hollingsworth v. Barbour et al. 4 Pet. 474; 11 Wend. 652.

In the last case, the defendant, in an action of ejectment, claimed title to the land in dispute, under a deed made in pursuance of an order for partition. There was no showing in the record that the requirement of the statute authorizing proceedings in partition had been complied with.

It is there observed by the judge who delivered the opinion of the court, “If a court act without jurisdiction, the proceeding is void; and if it appear upon the face of the record, the whole is a nullity; and this want of jurisdiction may always be set up against a judgment when sought to be enforced, or when any benefit is claimed under it.” In the case just noticed, it is said, it must be shown by the record that the court had jurisdiction of the party, either by service of process or by publication, where that is authorized. The case in 3 J. J. Marsh. 105, is to the same effect.

These lands, which belonged to Charles McCarroll in his life time, descended to his heirs upon his death. The title became vested in them, and can only be divested by the decree of the probate court, upon proceedings instituted and conducted according to the statutes of the state. The administrator, as such, had no interest in the lands, and can only take possession in the mode and for the purposes enumerated by the law. One case is given by the statute in which he may sell the real estate, and that is when the personal property is insufficient to discharge the debts of the deceased.

Another is, perhaps, when it can be shown that it was for the interest of the heirs to convert it into money. But in any proceeding, in one case or the other, the heirs must have notice.

It is not shown that the purchaser has any deed, or whether he is in possession, and hence it is unnecessary to consider how far such facts if proven would bring the case within the general rule which obtains in the purchase of lands, if the vendee has been let into possession at the time of seeking to rescind the contract, or of resisting the payment of the purchase money, hi this case, the sale conveyed no title to the vendee, and the consideration of the note has therefore wholly failed.

In such circumstances, there can be no justice in subjecting him to the payment of the money on the uncertain ground of his right to action to recover it back in a suit against the administrator. The vendors in this case were mere trustees, and sold the land only in obedience to an order of the probate court. They are not supposed to have any personal interest in the land, and therefore would not be liable for a defect of title. They represent the deceased. It is not contended that the deceased had not a good title. But it is insisted merely that the title is, in law, in his heirs.

The case in Stewart’s Alabama Reports, 335, is directly in point, and fully sustains these views. The judgment must he reversed, and a venire de novo awarded.