#### R. D. GILLENWATERS AND WIFE V. B. F. SCOTT.

IN SUPREME COURT,

TYLER TERM, 1884.

*Embute Law —Order to Sell Real Estate.*— That it may be deemed best on account of (lie condition of the property, in the absence of the grounds prescribed by statute, furnishes no reason why a probate court should order real property of an estate to be sold.

*Sanie*— Sude *Voidable.*— When a sale of real estate is ordered and confirmed by *529a court, oí general jurisilielion, hnyin-j; the power to order and confirm it ; and the facts e’cist- which give the poner to sell, although not sei up in the application for tiie order to sell, such .¡alo and orders are at most voidable, and cannot br collaterally attacked.

Cu.se TAmitetThe decision is upon a case arising under tile act of August 15 1870, and is not to apply to cases arising under the present law.

Appeal from Cook county.

The appellants sue in the right of Mrs. Gillen waters, as heir of M. A. Elliot, deceased, to recover a part of the property described in the petition. The appellee claims through a sale of the property made by the administrator of Elliot’s estate made under order of the proper probate court, which was duly repoi ted to, and confirmed by the court;'the entire purchase money having been paid.

It is claimed that the sale was void, for the reason that the petition, upon which the order of sale was made, did not show that debts existed which made the sale necessary. The petition was evidently defective and gave reasons why the particular property, on account of its condition, should be sold with advantage to the estate, instead of stating grounds which made the sale of property of the estate necessary.

The grounds upon which real property of an estate may be directed, by a probate court, to be sold are, that it is necessary to sell to pay debts of an estate, or to partition it among heirs, or for some other purpose made sufficient by the statute. That it may be deemed best for the estate on account oí the condition of the property, in the absence of some of the grounds before mentioned, furnishes no reason why a probate court, should order real property of an estate to be sold.

The sale in question in this case was made under the act of Aug. 15,1870, which provided that sales of real property, when it became necessary to sue, should be ordered in the application of the executor or administrator ; but that act does not provide, as does the present law, what the application should contain ; and it directed that such sales should be made of property which would be made advantageous to the estate to sell. (P, I). 5701, 5702.)

The application under which the land was sold set out very fully why it would be advantageous to sell the particular property, but it did not show that debts existed which made the sale necessary. It, *530however, appears from the evidence introduced by the appellants, that at ihe time the application for the sale was made and granted, claims ¡¡ad been established against the estate of Elliot, amounting to about three thousand dollars. If the law in force was then complied with by the clerk of the court, its records showed what claims had been established against the estate. (P. I). 5GJG, 5673, 5086, 5689.)

On May 19, 1880, it appears that the e.state was still indebted, notwithstanding the money received in the sale of the land in controversy had he in appropriated to the payment of debts of the estate. That a necessity for the sale at the time the application was made, sale ordered, made and confirmed, existed, cannot be questioned. That the estate was administered in the utmost g.-.od faith and honesty, is apparent.

Under such a state of facts, it is claimed that the sale was void. We are of the opinion that this proposition cannot be maintained. The sale was ordered and confirmed by a court of general jurisdiction, having the power to order and confirm it ; and the facts existed which gave the power to sell property. In such a case, when the statute under which the sale is ordered, does not specifically prescribe the steps which shall be taken before the order can be made,, we are of the opinion, that at most, a sale so made will only be voidable if the steps taken preliminary to the order to make the sale were in some respects defective ; for the court was called upon to adjudicate the sufficiency of these very things before the order was made, and however erroneous its judgment might have been, it was not void. (Alexander v. Marvich, 18 Texas, 179; Guilford v. Love, 49 Tex., 735; George v. Watson, 19 Tex., 370 ; Withers v. Patterson, 27 Texas, 491 ; Giddings v. State, 28 Texas, 750 ; McNally v. Haynes, 59 Texas, 585.)

In the last named case it is correctly said that if it appears from the record that the court clearly transcended its powers, its judgment would be a nullity. No such thing appears in this case, but upon the contrary, it clearly appears that the facts existed which authorized the court to direct the sale of land belonging to the estate, am) the objection is to the manner in which the court was called upon to exercise the power conferred upon it by the constitution, and not that there was a want of power or jurisdiction. It may . be that upon the question of notice a purchaser may not be required *5315 look behind the judgment of a court of competent jurisdiction, 'hen that jurisdiction has attached in the given case, but it does not dlow from thi-. that the condition of an estate, at the time a sale f property belonging- to if, is ordered, may not be looked to for the brposc of establishing the fact that the order was made in the exerse of legitimate pow.-r.

3f the appellants were of th • opinion that the court improperly rdered the sale of the property, they should have taken proper lops to have that and the subsequent orders sot aside by some preceding having that purpose directly in view ; the judgment or orIrs not being void they cannot, be attacked in this, which is strictly ■collateral proceeding.

iThis case is disposed of under the statute in force when the acts I question transpired, and wc do wish to be understood, as in any fcpect passing on the requisites to a valid sale of land in probate,, Ider the statute now in force.

■There is no error in the judgment of the court below, and it is linned.

Slayton, J.