-Ejectment.

*pq.se*26.

#### Benningfield *et al. vs*Reed & Sutherland.

Error to the Hardin Circuit.

*Decrees, void and voidable. Publication. Unknown heirs. Division of land. Judicial sales. Fraud.*

Cp,s.e ¡stated.

A decreemchancery against un*103known heiiS, is not void because; no affidavit was filed that they" were unknown,but is only voidable ; *Hynes*vs *Oldham,*(3 *Mmiroe,*266.) Eight weeks w&S the length of time for tiublication ¿gainst unknown heirs, two months against non resident defendants.

*102*December*20.

.Jjukte Simpson

delivered the opinion of the Court.

Tjhis -was an action of ejectment, on the trial of which Reed and Sutherland, the lessors of the plaintiff, ¡read in evidence a patent to William Greenough; and •in order to deduce a title from the patentee, they produced in evidence a transcript of the record and proceedings in a suit in chancery in the Hardin Circuit -Court, in which Richard Mather was complainant, against the unknown heirs of William Greenough, thepatentee; and a deed tp the complainant in pursuance ¡<jf -a decree rendered in that suit.

The rpcord exhibits no .evidence of an .affidavit that -th® names of the defendants were unknown to the complainant, as required by the statute; ¡t is, therefore, .contended the decree is ypjd, ,and that no title passed by the Commissioner’s deed.

T-he absence :ef qn ¡affidavit in a proceeding pf tfc&t description, does not have this effect. _ The. decree bp *103terróñéous but not void, as Was held by this Court iñ thé case of *Hynes*vs Oldham, (3 Monroe, 266.)

A deed by Commissioners appointed by the County Court underthe authority of the statute for conveyances and division of land, accompanied by a copy of the record of the appointment of the Commission-' ers — of the death of the obligor *104.and the payment <of the consideration — a coj)y of 'the bond itself •and the ‘execution of the deed •by one of the iheirs of the obligor — Held to be sufficient to authorize the ad.mission of the deed as evidence of a transfer «of ¡title.

*103Another objeótion tó this deed is, that thé déérée tinder Which it was executed is droid, because the order Wás published eight Weeks only, instead of tWO months. ■There is a difference', however, in the requisitions of thé Statute of 1802, (1 *Stat. Law,*95,) in relation to proceedings in chaircery against unknown heirs, and in those regulating proceedings against absent defendants, in other cases. Orders Of advertisement against unknown heirs, weré to be published only, eight weeks; ágáinst other absent defendants, they must have been published two months; (4 *Monroe,*252.)

The lessofs of the plaintiff also produced in evidence it deed to Philip Reed, executed by three Commissioners appointed by the Hardin County Court, under the act of 1797, (1 *Stat. Law,*456,) for and on behalf of the infant heirs of Ritíhard Mather, deceased, in conjunction' with Elizabeth Clarke, the only adult heir. Also á copy of the order of the County Court appointing the Commissioners; which order shows that the bond held by Reed on Mather, Was before the Court, and spread upon the order book, and proof made of payment of the consideration agreed on. The County Court order was made in January, 1825, and the deed executed in the month of February following, by the Commissioners and Elizabeth Clarke, thé 'adult heir.

. This deed is objected to on the ground that there was ño evidence Mather had executed any bond to Reed, and that thé proceedings of the County Court were not in compliance with the statute; but no particular defect is specified, except the one above named.

In the casé of *Short*vs *Clay,*(1 *Marshall,*371,) a deed by Commissioners appointed by the County Couit undet the “act to reduce into one the several acts for the conveyance and division of lands,” was decided to he inadmissible without evidence óf the authority of the Commissioners to execute it. In that case the de'éd alone Wás produced. It recited thé appointment of Commissioner, and s'e't foi'th the b'óñd for the land. Thát wás déeméd insufficient; the brdér óf thé County Obuft

*104Where a Court has jurisdiction tof a subject i'ts acts will not be void for *irregu. larity*in its proceedings, or questionable collaterally, (Shac*kleford*vs Miller, (9 Dana, 277.)

being considered indispensible evidence to establish that fact. The Court also suggested, that in such cases, it was necessary to prove the execution of the bond, because it constituted a link in the chain of title, and without it no regular derivation of title could be shown.

In this case, however, the record of the County Court was produced in evidence. It expressly exhibits all the facts necessary to give the Court jurisdiction, and to show that it had acted in conformity to the statute. If .the Court had jurisdiction, no irregularity in its proceedings could render its acts void, or even questionable collaterally in this suit; *Shackleford*vs *Miller and wife,*(9 *Dana,*277,) But no irregularity exists; and although it is not expressly .stated in the record that the execution of the bond was proved, yet as it contains proof of the death of the obligor and the payment of the .consideration, and the bond itself is made part of it, the presumption fairly arises, that its execution was proved to the satisfaction of the Court. The execution of the deed personally, by the only adult heir, is convincing proof of the genuineness of the bond, if any proof were necessary, in addition to the record of the County Court. That, in our opinion, is sufficient, and ■the objection to the deed we consider unavailing.

The'lessors of the plaintiff derive title from Philip Reed, by an execution sale and Sheriff’s deed, under a decree of the Nelson Circuit Court, rendered in a suit .in which’they were complainants and the heirs of said Reed defendants. Three of the heirs being infants, and not having been served with process, although a guardian *ad litem*had been appointed to defend, and had filed an answer for them, the decree after the sale and Sheriff’s deed had been made, was reversed, on the ground •that no process had been served upon the infant defendants.

Two objections are urged to the title under this decree: First: That process not having been served on .the infant defendants, the decree as to them was void, as well as erroneous. Secondly: That the decree having been reversed, the title acquired under it is destroyed, as one of the complainants was the purchaser, al*105though a different rule may prevail where a stranger is the purchaser.

When a guardian *ad litem*has been appointed by order of the Court, and has answered for the infant, although there may be no actual judicial notice 10 the infant of thependencyof the suit, decree is not void: *Bustard*vs *Gates,*(4 *Dana,*429;) *Bank U. S.*vs *Gochran,*(9 *Dana,*395.)

It is the policy tain judicial an^equity^uard zealously the interest of purchasers at judicial th^same^eason partiesp who are purchasers as strangers; (5 *Monroe,*451.)

in a suit to subJpa°°^e proof is clear of the demand, the lone fact that the dered^y consent the^nferenc? of ^e* the Court *to hy**106pothecate an instruction upon the supposed fraud.

*105As it regards the first objection, the doctrine must now be considered as settled, that an actual notification to the infant of the pendency of the suit against him, is not indispensible to the jurisdiction of the Court. The security of the infant depends upon the protective care of the Court, and the fidelity and aid of the guardian appointed to represent him, and watch over his interests. When, therefore, a guardian *acl litem*has been appointed by order of the Court, and has answered for the infant, the decree, although there .niay be no actual judicial notification to the infant of the pendency of the suit, is not void, but only erroneous; *Bustard*vs *Gates,*(4 *Dana,*429;) *Bank United States vs Cochran,*(9 *Dana,*395.)

The second position contended for, is equally untenable. It is the policy of the law to sustain judicial sales, The interest of the owner of the property sold requires it. If this rule did not exist, sales of this description , would be subjected to many disadvantages, resulting m frequent sacrifices of property. Both law and equity guard zealously the interest of purchasers under the process of Courts of law or decrees of Courts of equity, i . i and the title which the purchaser acquires, either under a judgment at law or a decree of a Court of equity, will not, upon the reversal of the decree or judgment, be thereby affected or disturbed.

The parties are at liberty to bid-and purchase property sold under the authority of a judgment or decree, and there is the same reason for protecting their interests in the property so acquired, as that of a stranger.; (5 *Monroe,*451.)

The complainants in' the chancery suit were the administrators, one being a son and the other having marri-ed a daughter of Philip Reed, deceased. The decree *°*1 . . was rendered by consent oí parties. Ihe deiendants were in possession of the land in controversy, claiming It by purchase at a sale under execution, against the heirs of said Reed, made subsequent to the one under rvhich one of the lessors of the plaintiff purchased, *106The right of the defendants, under the circumstances, to question the title of Philip Reed, under which both parties claimed, was denied. This question we have not considered, deeming it unnecessary to do so, inasmuch as the derivation of title from the patentee produced on the trial was complete, and showed the legal title in Reed at the time of his death.

*Harlan Craddock*for plaintiffs; *Hardin*for defendants.

The defendants on the trial, moved the Court to instruct the jury, if they believed the decree of the Nelson Circuit Court, and the execution thereon, and the sale under the execution, was had and contrived to hinder, or defraud,.or delay, or prevent any of the creditors of Reed in the collection of their debts, they ought to find for the defendants. The instruction was refused, and we think properly.

The existance of the debt claimed by the complainants, and its correctness, was conclusively established by the proof. The only imputation against the parties is, that the decree was rendered by consent; no opposition having been made to the claim asserted by the complainants. The justness of the demand having been shown, the fact of the decree having been rendered by consent, does not authorize the inference attempted to be deduced from it. There being no evidence upon which the instruction could have been properly predicated, the Court was right in overruling it.

Wherefore, there being no error in the judgment, it is affirmed.