Davie v. McDaniel , 47 Ga. 195 ( 1872 )

Montgomery, Judge.

1. That Courts of Ordinary are Courts of original, exclusive and general jurisdiction of the sale and disposition of the real property belonging to, and the distribution of, deceased persons’ estates, is provided in totidem verbis, by the Code, section 366. And to the same effect is the Act of 1856, (Acts of 1855-6, page 147,) which first made them Courts of general jurisdiction, which Act, it may be remarked, was passed in response to a call for just such an Act made by Judge Lumpkin, in Tucker vs. Harris, 13 Georgia, 1, and to remedy the evils found to result from the decisions of this Court holding the Court of Ordinary a Court of limited jurisdiction. That Act declares “ that all Courts of law and equity in this State, when determining on any judgment or order which the several Courts of Ordinary in this State have passed or made, or may hereafter pass or make, as to testate and intestate estates, shall hold said Courts of Ordinary to be Courts of general jurisdiction and not Courts of limited jurisdiction.” The Code nowhere repeals this Act, in terms, nor is it obvious to my mind wherein any of its provisions are inconsistent with it.

2. Where the Court of Ordinary has passed an order in reference to a subject matter over which it has jurisdiction, this Court has repeatedly held that it will not go behind the judgment to see if everything was done in accordance with law, but will presume it was; especially will the presumption foe made in favor of the judgment when attacked collaterally, as in the case at bar. “ The legal presumption is, that the Court had sufficient evidence to warrant it in passing the order * * * the order being passed by a Court of competent jurisdiction, and acting within the sphere of its authority, its proceedings cannot be attacked and set aside in this indirect manner:” Stell, guardian, vs. Glass, 1 Kelly, 486. That was a hill filed by a ward against a guardian for account and an attempt to attack an order granted him by the Ordinary to invest his ward’s funds in land, under the Act of 1829. In Clements vs. Henderson, 4 Georgia, 148, (an ejectment,) defendant offered an administrator’s deed in evidence. “ To the admission of which deed in evidence plaintiff’s counsel objected, because ' the deed and other evidence produced by the defendant was not evidence that the land had been advertised and the other requisites of the statute in such case made and provided, had been complied with by the administrators before making thedeed.’ ” Judge Warner, in delivering the opinion of the Court, after calling attention very emphatically in italicized letters to the proviso of the statute, that.it must be made “fully and plainly to appear that the sale will be for the benefit of the heirs and creditors,” before the Ordinary «hall grant the order, says, “ the authority to make the sale (the order) is shown, and we presume the Court of Ordinary required all the law requires to have been done, before granting the order to sell, and we shall not go behind that judgment.” At this time, it will be remembered, the Court of Ordinary was held by this Court to be a Court of limited jurisdiction. In McDade vs. Burch, 7 Georgia, 559, Judge Nisbet says such an order “ is not only leave to sell, but is a judgment of the Court. In favor of this judgment, we are to presume that the Court did its duty; that notice of the application was given as the statute directs, and that it plainly and fully was made to appear that the sale would be for the benefit of the heirs and creditors.” If we are to presume that the statute was complied with in favor of a judgment of a Court of limited jurisdiction, (for the Court of Ordinary was not yet held or enacted to be a Court of general jurisdiction) it would seem to follow a fortiori that we should do so in favor -of the judgment of a Court of general jurisdiction. The rule, is, and has been, at least since the days of Charles II.,' “that nothing shall be intended to be out.of the jurisdiction of a Superior Court, (i. e. a Court of general jurisdiction,) but that which specially appears to be so ; and, on the contrary, nothing shall be intended to be within the jurisdiction of an Inferior Court (one of limited jurisdiction) but that which is so expressly alleged:” Peacock vs. Bell and Kendal 1 Sanders’ Reports, 73. In Tucker vs. Harris, 13 Georgia, 1, the point seems for the first time to have been made that the order of the Ordinary granting leave to an administrator to sell land did not show on its face “ that it was made fully and plainly to appear to said Court that said contemplated sale was for the benefit of the heirs and creditors of said estate, and that in the absence of a recital of these facts in the order the Court would not presume that it was made to appear by evidence to said Court of Ordinary that the sale was for the above object.” That also was an ejectment, and the usual attack made on one of the links in the chain of title of one of the parties litigant. The Court make the accustomed presumption in favor of the jurisdiction, and say further, “if the judgments of the Ordinary, having jurisdiction over the subject matter, be erroneous or irregular, like all other judgments, they may be attacked by a direct proceeding in the Court where they were rendered, and set aside or corrected. Nevertheless, rights acquired under such judgments, before they are displaced, will be protected.” Judge Lumpkin in that case quotes, with approval, the case of Duval’s heirs vs. McLosky, 1 Alabama Reports, new series, 708, where th,e precise point now under discussion arose, to-wit: whether it was necessary that the record of Probate Court should show the petition of the administrator to the Ordinary for leave to sell land, required by the statute of Alabama. The Court decide “that the order for sale of the real estate could n'ot be considered invalid, because the record did not contain the petition filed by the administratrix, and that its decree for a sale could not be collaterally impeached by the omission to designate the heirs by name in the petition or elsewhere in the re.cord, or by the direction of the citation to the guardian instead of the heirs. That though it may not appear in totidem verbis from the decree of the County Court that it was rendered at a regular or adjourned term, if the contrary does not appear it will be taken to have been rendered in conformity with the statute.” And all these positions were reaffirmed in Duval’s heirs vs. The P. and M Bank et al., 10 Alabama Reports, new series, 636. Judge Lumpkin goes on to say, “ by recurring to the Alabama statute of 1822, it will be discovered that it requires that the executor or administrator ‘shall file’ a petition in open Court, as the initiatory step towards obtaining an order or decree for the sale of the real estate of their testator or intestate. And yet the Court say in the case refered to in lsi Alabama, that if the Court goes on to render its decree, it cannot be intended from the absenee of such a paper, merely, that it was never filed; but that the intendment most rational would be that it was lost after the rendition of the order.” This case from Alabama is, upon this point, not analagous to, but identical with the case at bar. In one word, the case of Tucker vs. Harris decides, after elaborate consideration of the question by Judge Lumpkin, that where the Court of Ordinary has jurisdiction of the subject matter, the record must show affirmatively those facts which ousts the Court of the jurisdiction, and the attack upon the judgment must be made directly in the Court which rendered it by proceedings instituted for that purpose: See page 16. lie adds; “if this protection be denied to these judgments of the Court, of Ordinary, you lay a train of gunpowder through the whole State, and such a decision would be the signal to set fire to it; for nothing has been more irregular than the practice of these Courts generally.” Whether the rule be as broad as laid down by Judge Lumpkin, to-wit: that though the facts, ousting the jurisdiction, appear affirmatively on the record, yet the judgment cannot be collaterally attacked, it is not necessary to stop to inquire. In the present ease no such facts appear. It is true that the case of Tucker vs. Harris was decided by only two Judges. Judge Warner having been of counsel, did not sit in the case; but, as we learn from a note of the reporter, “after the delivering of the opinion by his associates, he expressed from the Bench his hearty concurrence therein.” Shortly after this decision the Court reversed its former rulings that the Court of Ordinary was a Court of limited jurisdiction, and held it to be a Court of general jurisdiction : 14 Georgia, 27; and shortly thereafter, the Act of 1856 was passed, since which time this Court has uniformly held that, being a Court of general jurisdiction, every presumption will be made in favor of its judgments: 24 Georgia, 245. But conceding the Court of Ordinary to be a Court of limited jurisdiction, its judgments, where it has jurisdiction of the subject matter, cannot be collaterally attacked for matter not appearing on the face of the record, which would oust the jurisdiction, “ such proceedings (to sell land) are in rem against the estate, not in personam, and they bind all those claiming under the testator or intestate; and even divest the lien of a judgment, and as such they are binding on the land sold like the condemnation of a Court of Exchequer or Admiralty on goods. In support of these sales by Probate Courts, irregularities are to be overlooked; purchasers should not be affected, by the unskillfulness or negligence of the proper officers Cowan and Hill’s notes to Phil. Ev., Part II., note 42, referring to 11 Serg. and R., 422, 429,430; 4 Dali., 119. Again from the same note, quoting Duncan, Judge, “a judgment, decree, sentence or order, passed by a Court of compel tent jurisdiction, which transfers, creates, or changes a title) or any interest in the estate, real or personal, or which settles or determines a contested right, or which fixes a duty on one of the parties litigant, is not only final as to the parties themselves and all claiming under them, but furnishes conclusive evidence to all mankind, that the right, interest, or duty belongs to the party to whom the Court adjudged it.” Once more : “while the order of a Court of probate directing the execution of a will is unrevoked, no other Court can declare the will void or collaterally examine the correctness of the order or judgment.” See Judge Lumpkin’s remarks for himself and his associates on this subject in Hamilton vs. Moreland, 15 Georgia, 346.

3. But it is said that the order of sale is void because it does not more definitely describe the land ordered to be sold. Section 2518 of the Code requires the order to “specify” the land “ as definitely as possible.” Conceding that the land is not so specified, yet it appears to a majority of the Court that this is only directory to the Ordinary — certainly notan objection which can be successfully urged in a collateral attack upon the judgment: Brooks vs. Rooney, 11 Georgia, 428. There is no pretence that the citation was not published as usual. The creditors of the estate were as much parties to the proceeding to sell as if they had been personally served. The law makes the published citation service. They (and among them the present plaintiff in error,) should have appeared and filed their objections, as provided in section 4045, of the Code, not only on this ground, but on the other grounds now urged as reasons why the judgment should be declared void. They have had their day in Court. That they permitted the judgment to go against them by default cannot help them now : McDade vs. Burch, 7 Georgia, 563; Whitaker vs. Smith, 33 Georgia, 237. Moreover, section 4, part "VI. of the Code provides that “ a substantial compliance with any requisition of the Code or laws amendatory thereof, especially on the part of public officers shall be deemed and held sufficient, and no proceeding shall be declared void for want of such compliance, unless expressly so provided by the exactment.” This would seem to be conclusive upon this point. But it is said the order is void because it does not recite a compliance with the provisions required by law; and to maintain this position section 4044, of the Code is relied on. An examination of that and the preceding section will show two classes of applications to the Ordinary are provided for — first, those where the only notice given to the parties interested is by published citation. Secondly, those where the law requires personal service, or the Ordinary in his discretion orders personal service. In this latter class “ a copy of the application, together with a notice of the time of hearing is to be served by the sheriff, or some lawful officer, upon the party or parties to be notified, at least ten days before the hearing and an entry of such service shall be made on the original.” Section 4044 then follows and provides that “ the order of the Ordinary shall always recite the names of the persons so notified and a compliance with the provisions required.” The names of what persons so notified and how notified? Evidently the names of those who have been personally served and of none others — for the best of all reasons, it is impossible to know the names of persons, especially creditors, who have been notified by published citation. The order must recite the names and compliance with the provisions required. It must do both or neither. An order complying with one-half of the section, and that the latter half, would be as defective as one not complying at all. But I have shown it is impossible to comply with the first clause of the section in cases of notification by published citation. Legislatures do not require impossibilities. It follows that in that class of cases where the notice is by publication it is not necessary that the order of the Ordinary shall conform to section 4044. "YYhen the two sections are read together as a whole. the juxtaposition of the sentences sustain this view. Entertaining these views, I cannot consent to throw the law upon this subject back into the shoals and quick-sands from which it has been supposed, up to this time, the Act of 1856 rescued it. Something was said in the argument, though the point is not made by the bill of exceptions, that the record shows that the publication of the intended application was not made for two months as then required by law, the advertisement being dated August 12th and the order passed October 5th. The truth is the advertisement, as it appears in the record, is dated August 12th, 1860 j the order was passed October 5th, 1863. This date of the advertisement is probably a clerical error. Conceding it to be, the reply to the argument is that the law only requires publication once every two weeks for two months— not publication for two months. The first publication appears within the first two weeks of the month of August, leaving time for another in August and two more in September, and the order recites that the application was u published according to law:” Brown et al. vs. Redwyne et al., 16 Georgia, 76.

The objection made to the order was, that it was void on its face, not that the application for it had not been published long enough to authorize the Ordinary to grant, it. This point, however, is not made by the record, and nothing herein said is intended to decide it.

4. The fourth principle announced by the Court is sustained by Code, section 2520, and by 4 Georgia, 155-6.

5. We do not see how a failure to record a deed from an administrator can affect a creditor of the estate who was such at the time of the sale.

6. That it is sufficient for a bona fide purchaser at administrator’s sale to see that the administrator is apparently proceeding according to the forms of law. See Neal vs. Patten, 40 Georgia, 363.

Judgment affirmed.