objection, as the witness was introduced by them, though objected to by the plaintiffs.

We now come to the last objection, and the one most relied on in the very able and ingenious argument of the appellant's counsel: that the decree of the probate judge, ordering the sale, is a nullity. That the judgment, order, or decree, of a court of general jurisdiction, on any subject to which the jurisdiction has once attached, however erroneous, defective, or irregular it may be, can never be questioned or avoided in a collateral way, until it has been reversed, set aside, or revoked in a proceeding having that object directly in view, has been considered as well settled for the last century, and can not be now disturbed. It has, however, been supposed by some, that the proceedings of a court of limited jurisdiction are not entitled to the same regard, and that the records of such courts must show a strict conformity to all the requisitions of law; and that unless they do show such conformity, their acts confer no rights and impose no obligations on any one, and may be treated, whenever and wherever presented, as entire nullities, and void. Such is the position assumed by the appellants' counsel; and he contends that the decree of the probate judge, ordering the sale of the land, for the purchase of which the note sued on in this case was given, is of that kind. The record of the probate court, used in evidence on the trial below, was introduced by the appellants, and does not purport to be a complete record of all the proceedings in that court, in relation to the administration in which the order of sale was made; the appellants can, therefore, claim no advantage arising from the fact of its being only a part of the record.

The decree of the probate court ordering the sale of the land belonging to the estate of Cooper's intestate, was made under the provisions of the twenty-ninth section of an act regulating the duties of probate courts, and the settlement of successions, passed by the congress of Texas, at the session of 1840, and is in the words following: "Every executor or administrator is bound, within three months after his appointment, to petition the court of probate, granting letters testamentary or of administration, for the sale of all the perishable property belonging to the succession, and all or such portion of the other personal property, except slaves, as may be shown to the court, to be necessary for the payment of debts against said estate; and in case, or if on further information he finds that the proceeds of the sale of the personal property will not be sufficient for the payment of the said debts, he shall then, within six months after

his appointment, or as soon as he ascertains the said deficiency, petition the probate court for the sale of the slaves and real estate of the decedent, or so much thereof as may be necessary for the payment of said debts; and the said court, on full and satisfactory proof of the existence of the debts, and the necessity of the sale, shall order the same on cash or credit as may be most advantageous to said estate, or as the nature of the claims against said estate may require."

The record offered in evidence of the decree ordering the sale, supposed by the appellants to be so defective as to amount to a nullity, shows a petition on oath, preferred by the administrator in the words following: "To the Hon. John H. Money, chief justice of the county of Austin, and judge of probate for the said county: The petition of Walter C. Cooper, administrator of James Hensley, deceased, respectfully represents that there is about five hundred dollars' worth of property belonging to the succession, which he thinks is likely to be wasted, unless the same should be disposed of; your petitioner further represents that the debts, already presented against said succession, amount to about twelve hundred dollars, and the expenses of the administration make it necessary to sell some of the real estate, in addition to the perishable property belonging to the succession. Your petitioner would, therefore, pray your honor to issue your decree to sell the perishable property of the said estate, and so much of the real estate as may be necessary to satisfy the debts of the said succession, and the expenses on the same, and as in duty bound your petitioner will ever pray. D. Y. Portis, Att'y P. Q."

Which was sworn to in open court, by Walter C. Cooper, the administrator, and attested by the clerk. Then follows: "Walter C. Cooper's petition for the sale of the perishable property and real estate. In the probate court, May term, 1841, the within petition having been read and considered, it is, therefore, ordered, adjudged, and decreed, that Walter C. Cooper, administrator of the estate of James Hensley, deceased, proceed to sell all the perishable property belonging to the said succession, at the late residence of the deceased. And that he also proceed to sell so much of the real estate belonging to the said succession, as shall be of value sufficient to pay the debts of the said succession, and the expenses of administering the same. J. Money, Probate Judge, A. C."

Then follows an order from a justice of the peace of Washington county, to three individuals, to appraise two tracts of

land, part of the league of Harmon Hensley; the return of the appraisers; then the administrator's return of the account of sales of two tracts of land appraised, the first sold to Rebecca Allen, and the second to J. R. Lynch (one of the appellants), amounting to nine hundred and eighty-one dollars and eightyseven cents. This return is sworn to by the administrator before the probate judge, and the order of the judge, as follows. "Let the foregoing be admitted to record. Oct. 28th, A. D. 1841. J. H. Money, Probate Judge."

The objections taken to the proceedings of the probate court, just cited, that will be noticed, are: that the petition does not show a conformity with the law, in this, that it does not show that the perishable property had been exhausted before applying to the probate court, for an order of sale of the real property; that the record does not show the facts constituting the necessity for a sale of the real property; that the record should show the evidence by which the judge of the probate court acted in awarding the decree directing the sale of the real property; that the probate court being a court of limited jurisdiction, if the record does not disclose all the facts necessary to the exercise of its jurisdiction in giving its judgments and decrees, they are void.

The question how far a defective judgment, order, or decree of the probate court, could be considered, in a collateral matter, has been much discussed in the supreme court of Alabama, in a case calling in question a sale of real estate, by an administrator, in a suit brought for the same property by the heirs of the intestate, and in its principles and features, in many respects similar to the case before us. By the statute of the state of Alabama, after an order of sale has been decreed, the administrator is required to give bond to conduct the sale according to law, before he can obtain the order from the clerk of the orphans' court. In the case of Wyman et al. v. Campbell et al., 6 Port. 219 [31 Am. Dec. 677], the circuit court charged the jury, "that if the administrator had sold the real estate of his intestate, without giving bond according to law, his proceedings were absolutely void." This charge was assigned as error, in the supreme court of the state. In overruling the opinion of the judge of the circuit court and reversing the judgment, Chief Justice Collier discusses with great ability, the right to question the judg ment of the probate court, on account of any error or defects in such judgment, in a collateral inquiry. He puts the judgment of that court, upon the footing of all other judgments, that the

inquiry can only be, Had the court competent jurisdiction to render such judgment? If it had, however erroneous it may be, that judgment can not be controverted, until it has been reversed or set aside by an appellate tribunal, in a proceeding having that object directly in view: Id. 241, 242. The chief justice, in adverting to the fact that the opinion he was then giving, ran counter to the opinion of the court in Wiley and Gayle v. White and Lesley, that had been twice before the court, reported in 2 Stew. 331, and in 3 Stew. & P. 355, proceeds: "The very great respect we entertain for the learning of the judges who concurred in the opinion in that case, and the propriety of upholding the doctrine of stare decisis, have induced us to give to this case a more careful and elaborate examination. Principles the opposite of those we have stated, would be productive of the severest and most extensive injury. It is impossible to conjecture the vast amount of property held under sales made by order of an orphans' court, and we all know that in at least three fourths of the cases, the records are remarkable for their want of technicality and legal precision. Let the rule be established and continued, which requires the record to disclose every material fact, and which makes indispensable to the passing of the title, publication of the petition to sell, the return of the sale, the execution of a bond by the administrator, to the orphans' court, and everything else which the statute prescribes as preparatory to a decree, and a large majority of the titles acquired through such a channel would be overturned. In questions of doubt, arguments drawn ab inconvenienti deserve great consideration. It is worthy of remark, that the distinction between void and voidable judgments, seems not to have been considered in the case of Wiley and Gayle v. White and Lesley, but it is assumed that the proceedings of the orphans' court, may be collaterally impeached for an omission to disclose on its records, an observance of everything enjoined by statute, upon the ground that it is a court of limited jurisdiction. This reasoning only proves the order to have been voidable, if the authority of the court was shown, and that it could not hold good on an appeal or writ of error, but does not show that it was void per se, so as to subject it to an indirect attack."

Having participated in the case of Wiley and Gayle v. White and Lesley, it may be permitted me to bear testimony to the correctness of Chief Justice Collier's remarks, that although twice before the court, the distinction between void and voidable judgments was not presented or considered; but it was taken

for granted that, as the orphans' court was of limited jurisdiction, its judgment could be collaterally attacked. And at that time cases were not as well discussed as at a subsequent period. The remarks of the chief justice, as to the extent of evil that would result from a different rule, are most strikingly applicable to our own state. If irregularities in the alcaldes' courts, in the probate courts of the republic, and under the state organization, could nullify the decrees and judgments, property would be unsettled to an extent far more distressing than can grow out of land titles emanating from different sovereignties.

I have been so forcibly struck with the practical good sense of the remarks of the supreme court of Ohio on this subject, that I trust I shall be pardoned for introducing them here. In the case of The Lessee of Goforth v. Longworth, 4 Ohio, 129 [19 Am. Dec. 588], the court says: "It is held to be well settled, that courts give a liberal construction to statutes authorizing sales of real estate by executors and administrators. Public policy requires that all reasonable presumptions should be made in support of such sales, especially respecting matters in pais. The number of titles thus derived, and the too frequent inaccuracy of clerks and others concerned in effecting these sales, render this neces

If a different rule prevailed, purchasers would be timid, and estates consequently be sold at diminished value, to the prejudice of heirs and creditors."

The doctrine we have been discussing was again presented in the supreme court of Alabama, at a more recent period, in Hilliard and Wife v. Binford's Heirs, 10 Ala. 977, and Chief Justice Collier, reviewing and sustaining Wyman et al. v. Campbell et al., held, that where the record of the orphans' court recites "that a citation issued, as required by the statute, and therefore orders that the will be admitted to probate," it is at most voidable only and can not be collaterally impeached, but must be avoided, if erroneous, in a direct proceeding.

That the probate court has jurisdiction over the estates of deceased persons can not be doubted; that this jurisdiction was brought into exercise directly upon the property, by the petitioner praying the decree for an order of sale of the land, is equally clear. The land was the subject-matter on which the court exercised its jurisdiction; whatever might be the order, it was a question before a competent court, and its decision was subject to revision by appeal, but could not be attacked in a collateral way. That it was a proceeding in rem, can be made manifest by supposing that the heirs of the intestate had sued