It was assumed on the argument by the counsel on both sides that
the Circuit Court of the County of Washington in the District of
Columbia is vested with the, same power in relation to intestate's
estates in that county that is possessed by a county court in
Maryland over lands lying within the county.
When the proceedings of a court of competent jurisdiction are
brought before another court collaterally, they are by no means
subject to all the exceptions which might be taken to them on a
direct appeal. The general and well settled rule of law in such
cases is that when the proceedings are collaterally drawn in
question and it appears on the face of them that the subject matter
was within the jurisdiction of the court, they are voidable only.
The errors and irregularities of any suit are to be corrected by
some direct proceeding either before the same court to set them
aside or in an appellate court if there is a total want of
jurisdiction, the proceedings are void and a mere nullity, and
confer no right and afford no justification, and may be rejected
when collaterally drawn in question.
The act of the Legislature of Maryland relative to a devise of
the real estate of intestates in certain cases, in directing the
commissioners when to give deeds to purchasers, has this general
provision that the commission and proceedings thereon shall be
recited in the preamble of the deed. It certainly could not have
been intended that the commission, and all the proceedings, should
be set out in
haec verba. If the substance of the
proceedings is recited, it is sufficient.
The law appears to be settled in the states that courts will go
far to sustain
bona fide titles acquired under sales made
by statutes regulating sales made by order of orphans' courts.
Where there has been a fair sale, the purchaser will not be bound
to look beyond the decree if the facts necessary to give the court
jurisdiction appear on the face of the proceedings.
The decision of this Court in
Elliott v.
Piersoll, 1 Pet. 310, was not intended to decide
anything at variance with the principles established in this
case.
When the jurisdiction of the court on the subject under whose
authority lands have been sold appears on the face of the
proceedings, its errors or mistakes, if any were committed, cannot
be corrected or examined when brought up collaterally.
This case came up by appeal from the Circuit Court for the
County of Washington in the District of Columbia, where a verdict
was take for the appellees, subject to the opinion of the Court
upon the following agreed case.
"The plaintiff, to prove title to the premises (Lot No. 14 in
Square No. 290, in the City of Washington) showed a title in Robert
Tolmie, regularly deduced by sundry admitted mesne conveyances from
David Burnes, one of the
Page 27 U. S. 158
original proprietors of city property, duly executed and
acknowledged and recorded to the said premises, accompanied by
possession thereof and payment of taxes thereon by the several
grantees according to the titles down to the year 1805, when the
said Robert Tolmie, the last grantee in whom the said title had
vested, departed this life intestate, leaving Margaret, Alice and
James Tolmie, his only three children and heirs at law, infants at
the time of his death, under the age of 21 years; that the said
infants continued in possession of said premises until sometime in
the year 1814; that Margaret was the eldest of said infants, and
that in the year 1812 she intermarried with one Francis Beveridge,
and has since died, leaving three children, to-wit, Margaret
Beveridge, Hannah Beveridge, and James Beveridge, who are named
among the lessors of the plaintiff; that James Tolmie aforesaid
also died after the death of said Margaret, his sister, intestate,
under age and unmarried, prior to the commencement of this suit,
leaving Alice aforesaid his sister and the said three children of
Margaret his heirs at law. And the plaintiff also proved that the
said Margaret Tolmie was 17 years of age at the time of her said
marriage, which was in 1812, and was an infant under the age of 21
years at the time of the sale made by the commissioners hereinafter
named; that her husband, the said Francis Beveridge, some time in
the year 1814 or 1815, went away, leaving his family residents of
the City of Washington; that after some time he returned and lived
with his family, and again went away and has never since returned,
and is generally believed to be dead by his family and friends;
about three or four years age he was heard of and was then sick,
and has never been heard of since."
"The defendant has had possession of the premises since 1814,
when she became the purchaser thereof (by her then name Julia Kean)
at a public sale made by certain commissioners appointed under the
Act of the Assembly of Maryland of 1786, c. 45, to direct descents.
She entered in pursuance of that sale, claiming the lot under it,
and produced in evidence, the proceedings of the commissioners,
which are made part of the case agreed. "
Page 27 U. S. 159
That record contains a petition in the usual form for partition
of the real estate of Robert Tolmie, which purports to be the joint
petition of Francis Beveridge and Margaret his wife and of Alice
Tolmie and James Tolmie, infants, by Margaret Tolmie, their
guardian, mother, and next friend. It states that Robert Tolmie
died seized, leaving Margaret his widow, and also the following
children, his heirs at law,
viz., "Margaret, since
intermarried with Francis Beveridge, said Alice Tolmie and James
Tolmie, which said Alice and James are infants under the age of 21
years." This petition was filed on 15 June, 1814, and a commission
issued on the same day. On 17 June, 1814, the commissioners
reported that the estate consisted of a single lot, and could not
be divided without loss, &c., and valued the same at $1,400.
Whereupon, at June term, 1814, the court ordered the property to be
sole at public auction on ten days' notice, one-fourth part of the
purchase money in cash, and the residue at three, six and nine
months, taking bond with good security to the heirs according to
their several interests. On 5 July, 1814, F. Beveridge and wife,
and Alice and James Tolmie by their mother, gave notice in writing
that they did not elect to take the property at the valuation. On 3
July, 1818, the commissioners reported that they had sold the
property on 30 July, 1814, to the appellant for $1,105, on a credit
of three, six, and nine months, one-fourth being paid in cash, and
that she gave due security for the payment of the purchase money,
all which has been duly paid; they therefore requested that the
said sale might be ratified, and that they might be directed to
distribute the proceeds, and make a conveyance to the purchaser. On
the same 3 July, the court
"ordered that the report of the commissioners returned and filed
in this cause be, and the same is hereby ratified and confirmed, so
soon as proper receipts of the parties are produced before one of
the judges of this Court, and that then the commissioners or a
majority of them make a sufficient deed in fee to the
purchaser."
On 13 June, 1816, the majority of the commissioners made a deed
to the appellant which recites that by a decree of the circuit
Page 27 U. S. 160
court, sitting as a court of chancery, David Appler, &c.,
were appointed commissioners, and they or a majority of them were
authorized and empowered to sell said lot, the real estate of
Robert Tolmie deceased, and that in pursuance of said decree, the
said Appler, &c., did, on 30 July, 1814, sell the same to the
appellant for $1,070; that the said purchase money had been paid,
and that the said Appler, &c., were authorized and empowered by
said decree to execute a conveyance of the same, and accordingly
the said Appler, &c., conveyed said lot to the appellant and
her heirs.
The statutes are the Acts of Assembly of Maryland of 1786, c.
45, s. 8; 1797, c. 114, s. 6; and 1799, c. 49, s. 3, 4.
This ejectment was brought by Alice Tolmie, and by the three
infant children of her sister, Margaret Beveridge, who, since the
death of the said Margaret and of the said James Tolmie, have
claimed to be entitled to the lot, as heirs of the said Robert
Tolmie. The defendant entered under and relied on the
commissioners' sale above, which the lessors of the plaintiff
contended was void 1. because none of the heirs of Robert Tolmie
had arrived at age at the time of the sale; the act of 1786
expressly prohibiting a sale until the eldest was of age; 2.
because the sale was never ratified by the court; 3. because bonds
for the purchase money were not taken payable to each
representative, according to his proportional part of the net
amount of sales; and 4. because the deed does not recite the
commission and all the necessary proceedings thereon to show a good
title.
Page 27 U. S. 162
MR. JUSTICE THOMPSON delivered the opinion of the Court.
This was an action of ejectment brought in the Circuit Court of
the District of Columbia in the County of Washington to recover
possession of lot No. 14 in square No. 290, in the City of
Washington. Upon the trial, the lessors of the plaintiff produced,
and proved by sundry mesne conveyances, a title to the premises in
question, from David Burnes, one of the original proprietors of
city property, to Robert Tolmie, who in the year 1805 died
intestate. And it was also proved that the lessors of the plaintiff
are the heirs at law of Robert Tolmie.
The defendant claimed title to the premises in question, under a
purchase made at a commissioners' sale, by virtue of certain
proceedings, had in the circuit court, pursuant to the provisions
of the laws of Maryland relative to a division of the real estate
of intestates in certain cases. Objections were made to the
validity of these proceedings, and a verdict taken for the
plaintiff, subject to the opinion of the court upon a case agreed.
The court below decided that the commissioners' sale was void, and
rendered judgment for the plaintiff for two-thirds of the premises
in question, and the case comes now before this Court upon a writ
of error.
The case, in the circuit court, turned entirely upon questions
arising upon the proceedings under which the sale was made. It was
assumed on the argument by the counsel on both sides that the
circuit court in which these proceedings were had was vested with
the same powers in this respect in relation to intestates' estates
in the County of Washington, that is possessed by a county court in
Maryland on this subject over lands lying within the county.
Page 27 U. S. 163
The exceptions taken to the proceedings were
1. Because none of the heirs of Robert Tolmie were of age at the
time of the sale.
2. Because the sale was never ratified by the court.
3. Because bonds for the purchase money were not taken, payable
to each representative, according to his proportional part of the
net amount of the sale.
4. Because the deed does not recite the commission and all the
necessary proceedings thereon to shew a good title.
The counsel for the defendant in error have, in the argument,
considered these proceedings open to the same examination and
objections, as they would be in an appellate court on a direct
proceeding to bring them under review. This, however, is not the
light in which we view the questions now before us. These
proceedings were brought before the court below collaterally, and
are by no means subject to all the exceptions which might be taken
on a direct appeal. They may well be considered judicial
proceedings; they were commenced in a court of justice, carried on
under the supervising power of the court, and to receive its final
ratification. The general and well settled rule of law in such
cases is that when the proceedings are collaterally drawn in
question, and it appears upon the face of them that the subject
matter was within the jurisdiction of the court, they are voidable
only. The errors and irregularities, if any exist, are to be
corrected by some direct proceeding, either before the same court,
to set them aside, or in an appellate court. If there is a total
want of jurisdiction, the proceedings are void and a mere nullity,
and confer no right and afford no justification and may be rejected
when collaterally drawn in question.
The first inquiry, therefore, is whether it sufficiently appears
upon the face of these proceedings that the court had jurisdiction
of the subject matter. The law of Maryland under which they took
place, Act of 1786, ch. 45, head 8, declares that in case the
parties entitled to the intestate's estate cannot agree upon the
division, or in case any person entitled to any part be a minor;
application may be made to the court of the county where the estate
lies, and
Page 27 U. S. 164
the court shall appoint and issue a commission to five discreet
men, who are required to adjudge and determine whether the estate
will admit of being divided without injury and loss to all the
parties entitled, and to ascertain the value of the estate. And if
the estate can be divided without loss or injury to the parties,
the commissioners are required to make partition of the same. And
if they shall determine that the estate cannot be divided without
loss, they shall make return to the county court of their judgment,
and the reasons upon which the same is formed, and also the real
value of the estate. And if the judgment of the commissioners shall
be confirmed by the county court, then the eldest son, child, or
persons entitled, if of age, shall have the election to take the
whole of the estate and pay to the others their just proportion of
the value in money, and on the refusal of the eldest child, the
same election is given in succession to the other children, or
persons entitled, who are of age, and if all refuse, the estate is
to be sold under the direction of the commissioners, and the
purchase money divided among the several persons entitled,
according to their respective titles to the estate. But if all the
parties entitled shall be minors at the death of the intestate, the
estate shall not be sold until the eldest arrives to age, and the
profits of the estate shall be equally divided in the meantime.
The principal objection raised to the title of the defendant
below, and indeed the only one that presents any difficulty is that
upon the trial of this cause it was proved, that none of the heirs
of Robert Tolmie had arrived at age when the sale was made, and how
far this will affect the sale will depend upon the question whether
the proceedings on the partition, when brought up in this
collateral way, were open to an inquiry into that fact. Did the
jurisdiction of the court over the subject matter of the
proceedings depend upon that fact, or if true, was it matter of
error, and to be corrected only on appeal?
It is to be borne in mind that no such fact appears on the face
of these proceedings, but on the contrary, from what is stated it
may reasonably be inferred that it appeared
Page 27 U. S. 165
before the court that one of the heirs was of age. The petition
presented to the court for the appointment of commissioners, and
which was the commencement of the proceedings, in setting out the
parties interested states that Robert Tolmie died intestate,
leaving the following children and heirs at law,
viz.,
Margaret, since intermarried with Francis Beveridge, and Alice
Tolmie, and James Tolmie, which said Alice and James are infants,
under the age of twenty-one years. Why specially allege that these
two were minors if Margaret was also a minor? Every reasonable
intendment is to be made in favor of the proceedings, and their
allegation in the petition will fairly admit of the conclusion,
that the petitioners intended to assert that Alice and James only
were under age. The age of the heirs was, at all events, a matter
of fact upon which the court was to judge, and the law nowhere
requires the court to enter on record the evidence upon which they
decided that fact. And how can we now say but that the court had
satisfactory evidence before it that one of the heirs was of age.
If it was so stated in terms, on the face of the proceedings, and
even if the jurisdiction of the court depended upon that fact, it
is by no means clear that it would be permitted to contradict it on
a direct proceeding to reverse any order or decree made by the
court. But to permit that fact to be drawn in question in this
collateral way is certainly not warranted by any principle of
law.
But independent of these considerations, the jurisdiction of the
court over the subject matter of the proceedings sufficiently
appears. It did not depend on the fact that one of the heirs was of
age. But according to the express terms of the act, it attaches
when the ancestor dies intestate and any of the persons entitled to
his estate is a minor. The petition states that Robert Tolmie, late
of the County of Washington, died intestate, seized in fee of lot
No. 14 in square No. 290, leaving Alice Tolmie and James Tolmie,
two of his children, and heirs at law, under the age of one and
twenty years. And whether Margaret Beveridge, his other child and
heir, was of age or not was immaterial, as it respected the
jurisdiction of the court. That fact could only become
Page 27 U. S. 166
material in case the land was not susceptible of a division
without injury or loss to the parties. If it could be divided
without injury, the commissioners were required to divide it,
although all the heirs were minors. The materiality of the inquiry,
whether any one of the heirs was of age, was altogether contingent
and might never arise. And at all events must depend upon the
report of the commissioners whether or not the property might be
divided without injury. This must necessarily, therefore, be an
inquiry arising in the course of the proceedings and after the
jurisdiction of the court attached.
With respect to the other exceptions, it would be difficult to
sustain them, if the proceedings were before this Court on a direct
appeal. No more could be required than to set forth enough to show
the jurisdiction of the court, and a substantial compliance with
the requirements of the law. In June term, 1814, the court
confirmed the report of the commissioners, that the property would
not admit of a division, and ordered a sale thereof, prescribing
the terms,
viz., one-fourth cash, and the other
three-fourths on a credit of three, six, and nine months, taking
bonds, with good security to the heirs according to their several
rights, bearing interest from the day of sale. On 15 June, 1815,
after the expiration of the time of credit, ordered by the court to
be given, the commissioners report a sale of the lot to the
defendant below for $1,105, and that the purchase money and
interest had all been paid, and they request that the sale may be
ratified, and they directed to distribute the money and make a
conveyance to the purchaser. It is objected that it does not appear
that bonds were given to the heirs according to the order of the
court and the directions of the act of 1799. But this objection
cannot certainly be considered of any importance after the money
had been paid by the purchaser and the report ratified and
confirmed by the court and the commissioners directed to make a
deed to the purchaser. But it is said this was a conditional
ratification, and not to take effect until receipts from the
parties entitled to the money were produced to one of the judges of
the court. Suppose this is to be considered a conditional
Page 27 U. S. 167
ratification, and the purchaser not entitled to a deed until the
condition was performed. Where is the evidence that affords any
inference that it was not performed. The receipts were to be
produced to one of the judges of the court, and was not a matter
which the court were afterwards to sanction or pass any order upon.
It was not a judicial act, and would not, of course, be made matter
of record. And the deed being afterwards given, affords a pretty
fair inference that the order of the court had been complied
with.
The last objection is that the deed does not recite the
commission and all the necessary proceedings thereon to show a good
title.
The act of 1799, in directing the commissioners when to give
deeds to purchasers, has general provision, that the commission and
proceedings thereon shall be recited in the preamble of the deed.
It certainly could not have been intended that the commission and
all the proceedings should be set out
in haec verba, and
the substance of them is recited, which is all that could be
necessary. So that this exception is not well taken as to the
matter of fact
From this brief notice of the several objections which have been
taken to these proceedings it will be seen that in the opinion of
this Court, the three last are unfounded, and could not be
sustained even on a direct appeal, and the first, although entitled
to more consideration, cannot, at all events, be raised, when the
proceedings are collaterally drawn in question, as they were on the
trial of this cause.
The Maryland cases cited in the argument and reported by Harris
& Johnson, Vol. V. 42, 130, and Vol. VI 156, 258, do not throw
much light upon the particular questions drawn under examination in
this case. Some of them, however, are very strong cases to show how
far the courts of that state will go, to sustain
bona fide
titles acquired under sales made by virtue of these statutes. The
rules which apply to and govern titles acquired under sales made by
order of orphans' courts and courts of probate in the states where
such regulations are adopted are applicable to the case now before
the Court. The case of
McPherson v. Cunliff, 11 Serg.
& R. 429, was one of this description, and brought
Page 27 U. S. 168
under the consideration of the Supreme Court of Pennsylvania,
the effect of a decree of the orphans' court, in matters within its
jurisdiction, although founded in a mistake of facts. And in the
discussion of that question which is gone into very much at large,
rules are laid down which have a strong bearing upon the present
case. When there is a fair sale, said the court, and the decree
executed by a conveyance from the administrator, the purchaser will
not be bound to look beyond the decree if the facts necessary to
give the court jurisdiction appear on the face of the proceedings.
After a lapse of years, presumptions must be made in favor of what
does not appear. If the purchaser was responsible for the mistakes
of the court, in point of fact, after they had adjudicated upon the
facts, and acted upon them, these sales would be snares for honest
men. The purchaser is not bound to look further back than the order
of the court. He is not to see whether the court was mistaken in
the facts of debts and children. That the decree of an orphans'
court, in a case within its jurisdiction, is reversible only on
appeal, and not collaterally in another suit.
In
Perkins v. Fairfield, 11 Mass. 227, in the Supreme
Judicial Court of Massachusetts, it was held that a title under a
sale by administration, by virtue of a license from the court of
common pleas, was good against the heirs of the intestate, although
the license was granted upon a certificate of the judge of
probates, not authorized by the circumstances of the case. The
court said the license was granted by a court having jurisdiction
of the subject. If that jurisdiction was improvidently exercised,
or in a manner not warranted by the evidence from the probate
court, yet it is not to be corrected at the expense of the
purchaser, who had a right to rely upon the order of the court, as
an authority emanating from a competent jurisdiction. The case of
Elliot v.
Piersoll, 1 Pet. 340, decided in this Court at the
last term, has been referred to by the counsel for the defendant in
error as containing a doctrine that will let in every possible
objection that can be made to these proceedings.
The observation relied upon is
"but we cannot yield an assent
Page 27 U. S. 169
to the proposition that the jurisdiction of the county court
could not be questioned when its proceedings were brought
collaterally before the circuit court."
This remark was only in answer to the argument which had been
urged at the bar that the circuit court could not question the
jurisdiction of the county court. That it was so intended is
obvious from what immediately follows. "We know nothing in the
organization of the circuit courts of the union, which can
contradistinguish them from other courts in this respect." And the
limitation upon the extent of the inquiry, when the proceedings are
brought collaterally before the court, is explicitly laid down.
"We agree that if the county court had jurisdiction, its
decisions would be conclusive. When a court has jurisdiction, it
has a right to decide every question that occurs in the cause, and
whether its decisions be correct or not, its judgment, until
reversed, is regarded as binding in every other court. But if it
acts without authority, its judgments and orders are regarded as
nullities. They are not voidable, but simply void, and form no bar
to a recovery sought in opposition to them even prior to a
reversal."
This is the clear and well settled doctrine of the law, and
applies to the case now before the Court. The jurisdiction of the
court (under whose order the sale was made) over the subject matter
appears upon the face of the proceedings, and its errors or
mistakes, if any were committed, cannot be corrected or examined
when brought up collaterally, as they were in the circuit
court.
The judgment of the court below must, accordingly, be
Reversed and the record sent back with directions to the
court to enter judgment for the defendant.
