#### Den *ex dem.*Caleb White *v.*William Albertson.

A *cestui que imst,*who obtained possession in that character, is not permitted at law, to deny the title of the trustee. And where he has admitted it by a parol declaration, a purchaser under the trustee is not bound to prove the title of the4latter.

Ejectment for a lot of ground in Elizabeth, tried on-the last circuit, at Pasquotank, before Ills Honor Judge Martinv

The plaintiff proved, that the defendant had admitted that *William T. Muse*and *John Mulleniisiá*bought the lot for him, and that he was to have it when.he paid the purchase money — that he had complied with this .engagement, and claimed the lot as his property,

The plaintiff then introduced the record of a suit in equity against *John B•*Blount, the executor of *William T. Muse,*in- which the plaintiff s.ad obtained a decree foi*' 1935, and on which, as the plaintiff admitted the executor to,have fully administered, a *scire facias*ivas ordered. to issue “ to the heirs and. devisees of *Muse,*by. their-guardian *John B.*BlountIn'pursuance of this order a- *scire facias*issued reciting the decree and the descent of lands, and directing the sheriff “ to make “ known to tlic said *John B. Blount*guardian to the heirs *“*of the said *William T. Muse*that he appear &c.” which was endorsed “ service accepted, *J. B Blou '*guardian *u*of *J. B.*& *W. T. Mu$e, per Thomas M.*BlountAf-terwards an entry was. made' “ that execution issue to “ sell the land for the amount of the decree.’5’ An execution issued according, to this order, and the lessor of the plaintiff purchased at sheriff’s sale and took a deed to himself. The plaintiff also proved that *John B. Blount'*was the executor of *Muse*and guardian to his children ;• and contended, that as the defendant claimed under him, he was estopped to deny his title, and could not set Up an equitable defence in this court. But his Honor being of a different opinion,a nonsuit was entered.and the plaintiff appealed.

*Kinney,*for the plaintiff,, contended,

*242A judgment cannot be collaterally impeached for error; if rendered according to the course of the court, however erroneous, it is valid until rever, sed.

Although satisfaction of a decree against an executor who has fully administered, can now he had out of the lands of the tes. tator, only upon a bill against the heir, yet a sale Under an order made uponasef. *fa.*is valid.

A judgment by *nil dicit*against an infant heir is not void, but only erroneous.

1st. That ilu>, plaintiff would not be permitted to deny tlie title of *Muse,*under whom be claimed. ( *Jackson*v. *Stewart,*6 *Johns.*34).

2d. That the defendant pretended to have only an equitable title, which was no defence in a.court of law. *([Readc*v. llcade, 8 T. *M.*118, *Jones*v. Jones, *7 T.*i?. 43).

3d. That the judgment upon the *sci. fa.*improperly brought upon the decree was erroneous only, and not void; and therefore a title obtained under it veas valid until the judgment ivas reversed. ( *Bac. Mr. Void*and *Voidable. Oxley*v. *Míale,*3 *Mur.*250. *Figot*v. *Bams,*3 *Hawks-*25. *Mum.*1 *Salk.*400. *Jhidrcx Benton*v. *Mijes,*6 *Johns.*296). *'s*v. *Lynion, Id*265.

*Iredell, contra.*

HeiíbeRsoK, Chief-Justice.

Wc cannot look into the mere errors in rendering judgment, but only into its regularity according to the course of the court. For if the judgment bo regular, however erroneous wo may-think it is, it has, until reversed, all the power and effect of a judgment.

against, heirs, to enforce a de-The process of *sci. j*cree in equity against the executor or administrator of the ancestor upon a deficiency of assets,until declared to he improper by this court, in the case, of *Jeffreys*v. *Yarborough,*(1 *Dev. Eq. Cases*506.) a decision in which I did not concur, was the common and ordinary mode of proceeding. We cannot impedeh the judgment for that irregularity. It would unsettle too *much*property. Nor can wc impeach it, because a default, or judgment by nil *dicit*was taken against the infant heirs : for this is only error, but docs not render the judgment null. The only objection, which has the appearance of solidity is, that the defendants, the heirs, were not made parties. And if the fact be so, the judgment is void. For there can be no judgment, but against one in court. It is not according to the course of the court, to render judgment against one not brought into court. - The *sci. fa.*in this case is not against the proper person. It should have been against the heirs themselves.' But when the ser*243vice was admitted by *John B. Blount,*the guardian *B.*and *W. T Muse,*we must thou consider *J. B,*and *W-*. *Muse*as m court, for that court was the proper judge. It is so decided ; and it cannot he contradicted in this collateral way, whether they were properly in court, whether *John B. Blount*was their guardian, or whether it was competent for *Thomas E. Blount*to admit service for *John B. Blount.*For itis evident, that these,points were, either expressly or impliedly, so adjudicated, by the court. The court may have erred, and certainly acted very mi-adviscdly, in permitting the executor to defend as guardian. For on his full administration it depended, whether execution was to issue against him or the heirs. The judgment therefore is not void, neither is it taken contrary to the course of the court,

Where judg-dered against an “fantupon pro-gainst his guar* p^¿Vf°r infant, this ap-kentohavebcen the^om-tf ^

The lot was sold as the-property of the heirs of *William T. Muse;*and it was proved, that the defendant declared, that *Muse*and *one Mullen*purchased it for him; and that when he paid the purchase money it was to he his, and that he had paid the money. The plaintiff showed no conveyance but the sheriff’s deed. The defendant showed no title. As to setting up an equitable title, it lias been long since exploded for reasons much better than I can give. I can see no reason why, after the declaration that the defendant held under *Muse,*or that *Muse*had the legal title, and that he liad only an equitable one, when sued by *Muse,*his acknowledged trustee, or a purchaser under him. that he should put the plaintiff to the proof of that which he'liad admitted. The adoption of such a rule would destroy all confidence between man and man. It is true, that the admission does not give *Muse*a title, for that would he to give him one by mere parol; but it requires, that the defendant should not retain that possession against *Muse,*which he acquired from *Muse*in confidence,-and as his *quasi*ten-* ant. Aftc-r having surrendered that possession, he may controvert *Muse’s*title ; but he shall not weaken it by setting up a possession thus confidentially acquired. In this case, however, the plaintiff upon this evidence is entitled to recover possession of one half only* for the de-*244fewlant obtained it under *Muse*and *Mullen,*and the plaintiff represents the former only.

, , A judgment is void when rendered contrary the court, but if de?edPf'"unsta party when it should ii.ye beep, ib-s favor it is only eiToneous‘

When I say, that the *scire facias*should have issued against the lieirs of *Muse,*and not against their guardian, 1 do not mean, that it must be against the heirs *by name,*for I think, that a *scire facias*directing the sheriff to make known to the heirs generally, without naming them would be good.

judgment is void and confers no rights against *amt , .*, , ., , ' . ° . ... *one,*(wherever and however it may be introduced, either directly or collaterally,) when it is taken *contrary to the course of the court,*it is erroneous, when the court mis-*£l*ies ^le law, and renders judgment for one party, when upon the record, it should have been rendered for the 0i()er • ol. rather, when a judgment different from the ***one given should have been rendered; hut in that case it is as binding until reversed, as if it were not erroneous.

Per Curiam. — Judgment reversed.