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organization of the English and our courts, is so great, that no deduction can be drawn from the English practice, as to the proper period of notice under our judicial establishment. The question then arises, whether, on a just interpretation of our statute laws, considering the powers of the district courts and the objects to be obtained by the remedy, a writ of mandamus can be returned to the term from which it issued. This question will admit of but one answer. If we examine the usages other courts where the common law prevails, we will find that the rule to show cause, the alternative, and the peremptory mandamus, have all been granted at the same term of the court, etc.

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This decision was made under the statute of the twenty-fifth of January, 1841, which directed judges, in issuing writs of mandamus, to observe the rules which govern the writs of mandamus at common law, as modified by the statutes of the republic; and its principal object was to prevent writs issuing without notice to the respondent.

It was urged in that case that the defendant was entitled to the five days' notice, before the commencement of the term, under the statute which directed all original process to be executed five days before the return day thereof: Laws of 1836, 201; but it was held, in effect, that the writ might be issued during the term, and that the defendant was entitled neither to the five days' previous notice, nor was he entitled to the period allowed in England, as our courts might often close before the expiration of the term of notice. This decision has, it is believed, been generally approved; and in subsequent laws, it has been specially provided, that writs of mandamus may be returned at the term at which they were issued.

If, from the character of the writ, the nature of the remedy, and the structure of our courts, we were authorized to disregard the positive rules fixed by either law in relation to notice, it seems that, in accordance with the principles regulating our system of procedure, we may disregard the ancient rule of common law, requiring the facts pleaded in the answer, to be controverted, not in the same, but in a new and separate action.

We proceed to examine the second proposition embraced in the assignment, viz.: as to the power of the court to disregard the judgment of the county court, vacating the election of the seventh of August, and treating its order as a nullity. It may be contended that the latter court, having jurisdiction over the subject-matter and the parties, their judgment is conclusive, however irregular may have been the mode of arriving at their

decision. The correctness of these positions may be admitted, but they leave untouched the controlling question in the case, viz.: whether the judgment was rendered by a court of competent jurisdiction; or, rather, whether the order vacating the election of the seventh of August emanated from a court, or from an unauthorized individual. The doctrine contended for, that a judgment must stand, unless reversed for error, or set aside for fraud, does not apply where the want of jurisdiction is made a question. This may always be set up when a judgment is sought to be enforced, or any benefit is claimed under it; and this is not inconsistent with the principle which ordinarily forbids the impeachment or contradiction of a record: Cow. & Hill's notes to Phil. Ev. 800, note 551.

In this case there is no impeachment of the verity of the record. The want of jurisdiction is shown upon its face. The entry commences by stating that there was no quorum; and in a continuous narrative, shows the submission to arbitration; the award of the arbitrators; and that this was made the judgment of the court. If a contested right to an office be the proper subject to arbitrament-and if, under the rules and principles of the common law, independent of the statute, rights cognizable by the county court may be arbitrated, and the award, by appropriate proceedings, be made the judgment of the court; yet, this award has not the force of a judgment, for the reason that it was not rendered as such by a court. The members present, if any, could exercise no judicial functions requiring a quorum. The entry by the clerk, of the judgment, was unauthorized; and the whole proceeding is as absolutely null as if conducted before, and determined by any private individual or individuals, without the pretense of judicial authority. There being no error in the judgment of the court, it is ordered that the same be affirmed.

Judgment affirmed.

FACTS STATED IN RETURN TO MANDAMUS.-The facts stated in a return to a mandamus are supposed to be true, and are not traversable; if they are false, the remedy is by action against the person making the return: Brosius v. Reuter, 2 Am. Dec. 534; and where the return is accompanied by affidavits, affidavits in reply are not admissible: People v. Corporation of Brooklyn, 19 Id. 502; see also Universalist Church v. Trustees, 27 Id. 267.

JUDGMENT OF COURT HAVING NO JURISDICTION of the person or subject-matter is a nullity, and will be disregarded even when it comes into question in a collateral proceeding: Swiggart v. Harber, 39 Am. Dec. 418, and note; Smith v. Tupper, 43 Id. 483, and note.

LYNCH ET AL. v. BAXTER ET Ux., Adm'x.

[4 TEXAS, 431.]

SALE OF LAND BY ADMINISTRATOR IS JUDICIAL SALE, and operates in rem. In such case it is a general rule that caveat emptor applies, and the purchaser takes his purchase without warranty, express or implied. WHERE ADMINISTRATOR EXECUTING ORDER OF COURT TO SELL LANDS gives the purchaser a bond for a warranty title, it is not in his character as administrator, and he can not bind the estate of his intestate by such a covenant. Whether he would be bound personally, left undecided. VENDEE CAN NOT RESIST PAYMENT OF PURCHASE MONEY, on ground of defect of title, while he retains the warranty bond and continues in the possession of the land.

HEIRS MAY MAKE VALID PAROL PARTITION OF LAND among themselves, where they are all of age, and if one is not of age at the time of the partition, it is nevertheless valid, if acquiesced in and confirmed by such heir after coming of age.

VERBAL PARTITION OF LAND WAS BINDING under the Mexican law where possession was taken.

IN ACTION ON PROMISSORY NOTE GIVEN FOR PURCHASE OF LAND, possession of warranty bond for title and possession of the land afford ample and legal consideration to entitle the plaintiff to recover, without regard to title.

JUDGMENT OR ORDER OR DECREE OF COURT of General JURISDICTION, on any subject to which jurisdiction has attached, however erroneous, defective, or irregular, can never be questioned or avoided in a collateral way.

JUDGMENT OF PROBATE COURT CAN NOT BE QUESTIONED COLLATERALLY on account of any error or defect in it. The only inquiry that can be made is, Had the court competent jurisdiction to render such judgment? SETTLEMENT OF SUCCESSIONS IN PROBATE COURT IS PROCEEDING IN REM acting on the land directly, and a decreee for its sale can not be collaterally attacked. If the sale was without any necessity existing at the time the order was made, still it was conclusive until set aside in proceedings having that object directly in view; and the purchaser, having purchased without fraud or collusion with the administrator, would be protected by the sale, if made under decree of a court having jurisdiction. PARTY WHO PRODUCES TRANSCRIPT OF PART ONLY OF RECORDS OF COURT can not object that certain things do not appear by it to have been done which should have been done, for they are not thereby shown not to have been done, and the appellate court is bound to believe they were done and are of record.

BY SECTION 29 OF ACT OF 1840, ADMINISTRATOR MUST APPLY For Order FOR SALE of the slaves and real estate as soon as the facts of the insufficiency of the proceeds of the perishable and other personal property to pay the debts of the estate is apparent; hence, if this fact should satisfactorily appear to the court before the order for the sale of the perishable and other personal property is made, there would be no error in its decreeing the sale of both the real and personal property in the same order.

ACTION by Mrs. Baxter, administratrix de bonis non, and her husband, on a promissory note given by Lynch to Cooper, the first administrator of the estate of one Hensley, for the purchase of certain land belonging to said estate. The evidence showed that the land in question was part of land formerly belonging to one Harmon Hensley, father of plaintiff's intestate; that he died leaving several heirs, all of age except one Margaret; that the same year the heirs divided the land by metes and bounds in equal parts; that since then all the heirs had acquiesced in the partition and enjoyed and used the parts allotted to them. The other facts appear in the opinion. Judgment for plaintiffs; defendants appealed.

Webb, for the appellants.

Munger and Lewis, for the appellees.

By Court, LIPSCOMB, J. The first and second objections taken by the appellants to the judgment of the court below, may be considered together. The sale of the land was a judicial sale, and operated in rem. In such cases, it is a general rule that caveat emptor applies, and the purchaser takes his purchase without warranty express or implied; and if the administrator, in executing the order of the court, gives the purchaser a bond for a warranty title, it is not in his character as administrator, and he can not bind the estate of his intestate by such a covenant; as a personal undertaking between him and the purchaser, how far it would be valid, is not now before us, and consequently, we pass it by: The Monte Allegre, 9 Wheat. 616. But if considered independent of the circumstances of the sale in this case, and if it was a case of individual private contract, the defense set up could not be available; because it is repugnant to the plainest principles of law and justice, to allow this defense to be heard, whilst the vendee holds on to the bond, and continues in the possession of the land purchased: Dufour v. Camfranc, 11 Mart. (La.) 615 [13 Am. Dec. 360]. And had there been no contract in writing, and had it been a private contract between the vendor and vendee, and the vendee had given his note for the payment of the land and gone into possession, he could not avoid payment, notwithstanding the statute of frauds, if the plaintiff was able and willing to make title: Rhodes' Adm'r v. Storr, 7 Ala. 346.

But the evidence offered by the defendant in the court below, entirely failed in establishing a superior outstanding title to that of the plaintiff's intestate. The evidence of Johnson Hens

ley, a witness, and the only one offered (and he was introduced by the defendants), proves that the land was a part of the headright league of his father, Harmon Hensley; that H. Hensley was also the father of the plaintiff's intestate; that the father died in 1834, leaving several children, all of whom were of age, excepting one daughter about fifteen years of age; that shortly after the death of his father, the children, by consent, divided his land into equal shares; that they set apart the best allotment to the sister, who was a minor; that she was married in 1835, and that she and her husband had sold her share to the plaintiff's intestate; that each of the heirs had entered upon and enjoyed their several shares, and had acquiesced in the partition so made in 1834, and made no complaint; the witness did not know whether the partition was by an agreement in writing, or not.

The appellants' counsel supposes this partition was illegal and void, and to show that it is so, refers to the act of congress of the republic, of 1840. The requisitions of that act, six years after the amicable partition, could not disturb rights growing up under it; the parties, with the exception of one, were of an age to divide out the land that had descended to them, by consent, even if the act of 1840, or a law similar in its terms, had been in force at the time the partition was made, and the other's acquiescence and confirmation after she was of age to act for herself, would bind her.

There can be no doubt, that at the time the partition was made, a verbal sale of land between individuals was binding, and the contract as valid as if evidenced by writing. It was so decided by this court under the republic: Scott and Solomon v. Maynard and Wife, Dallam's Dig. 551, and the authorities there cited. But if the law at that time had required that the partition should be in writing, it could not be disturbed now; the right to the respective shares, according to the partition, is now established beyond controversy by the statute of limitations.

Leaving the fact of the appellant Lynch being a purchaser at a judicial sale, out of the question, and placing him in the more favorable position of a vendee under a private contract with Cooper, the bond he sets up in his plea, and the possession of the land would afford ample and legal consideration for the note sued on, to entitle the plaintiffs to recover. We do not intend to be understood, in commenting on the evidence of outstanding title, to be considered as giving it our judicial sanction; if, however, it is objectionable, it is not for the appellants to raise the

AM. DEO. VOL. LI-47

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