Montgomery and Wife vs. Johnson et al. 4. ·; Proceedings in, how far conclusive. The proceedings of the Probate Court, when acting within its jurisdiction, are conclusive on all persons, until reversed or set aside by a direct proceeding for that purpose, however erroneous they may be.. The sale of real estate, under an order of the court without notice, and otherwise irregular and grossly defective, is not a nullity,and will, upon its confirmation, divest the title of the heirs. APPEAL from Monroe Circuit Court in Chancery. B. D. Turner, for appellants, S. P. Hughes, for appellee. HARRISON, J.: This was a suit in equity in the Monroe Circuit Court, by the appellants, James W. Montgomery and Ophelia, his wife, against the appellees, John W. Johnson in his own right, and as admistrator with the will annexed of John Johnson deceased, Elijah C. Adams, Elisha P. Adams and Fanny Adams. The complainants state that Joseph West, the father of the said Ophelia, and John T. West, his brother, purchased on the 20th day of November, 1849, from Robert Smalley, certain tracts or parcels of land in Monroe County, described therein as follows: "Part of the original claim of Moses Price, beginning at a post corner, from which a white oak, twenty inches in diameter, bears South, 63 degrees East, 28 links distant; and an oak, thirty-six inches in diameter, bears 62 degrees West, 32 links distant; thence North, 40 degrees West, 20 chains; thence South, 50 degrees West, 40 chains; thence South, 40 degrees East, 20 chains, to a post corner of the old survey; thence 50 degrees East, 40 chains to the beginning; containing 80 acres ; and the N. W. of the N. E. and the N. frl. of the N. W. of Section 23, in Township 3, South of Range 1 West, 102,62 acres, altogether 182.62 acres; for which they agreed to pay $800, in three equal installments, and gave him their three Montgomery and Wife vs. Johnson et al. promissory notes for $266.66, payable respectively on the 1st of January, 1851, 1852 and 1853; and he executed to them a bond to make them a deed, upon the payment of the notes. That they entered into possession, and made valuable improvements upon the land, and paid the first note when it fell due. That Joseph West died intestate on the 1st day of February, 1851, leaving the said Ophelia his heir at law, and John A. Harvick was appointed adminstrator of his estate. That in a short time after the death of Joseph West, and about said month of February, 1851, John T. West sold the land, as well as the undivided half of Joseph West, to which he obligated himself to secure him a title as his own, to John Johnson, and gave him possession, and that after he sold to Johnson, he and Harvick paid Smalley the other two notes, and Smalley, at their instance, on the 7th day of September, 1852, conveyed the land to Johnson. That Johnson remained in the exclusive possession of the land, and the sole enjoyment of the rents and profits thereof until his death, in the year 1857 ; and by his will devised the same to his widow, Nancy North Johnson, during her life, and after her death, to his son, the said John W. Johnson, and his daughter Ann Maria Johnson. That his will was duly probated, and administration, with the will annexed, upon his estate, granted to his widow and said John W. Johnson, and that Nancy North Johnson and Ann Maria Johnson both died soon thereafter, and John W. Johnson was the sole heir at law, of said Ann Maria Johnson. That the plaintiffs inter-married on the 28th day of February, 1857, and on the 20th day of February, 1861, they filed their bill in equity in that court, against the said John W. Johnson, to recover the said Ophelia's undivided half of the land, and the rents and profits thereof, in which suit the defendant was served with process, and the same was continued from term to Montgomery and Wife vs. Johnson et al. term until the day of May, 1871, within one year before the commencement of this suit, when it was dismissed by the court, but without prejudice, for want of prosecution. That John W. Johnson, on the 10th of January, 1867, sold and conveyed the land to his co-defendants, who had ever since been in possession; that he had, by the will of his father, an estate equal in value to the rents and profits of the plaintiff's half of the land, which accrued during his father's possession. And that the time of her father's death, the said Ophelia was an infant, and continued to be such until after the commencement of the former suit. The prayer of the complaint was for a decree for one-half of the land, and for the rents and profits. John W. Johnson, only, answered the complaint, or made defense. He admitted all the allegations of it, except that when John T. West sold Johnson his own, he also sold him Joseph West's half of the land, and obligated himself to secure him the title that he desired. The Court of Probate, he averred, at the April term, 1851, upon the petition of Joseph West's administrator, verified by his affidavit, showing the debts of the estate that had come to his knowledge; the amount of the assets in his hands; and that after paying the other debts, there would not be sufficient to pay for the land, made an order for the sale of his intestate's interest therein to pay the remaining two notes given in the purchase thereof, and that in pursuance of the order, having given the notice required by law, he, on the 15th day of July, 1851, sold the same at the court house door, at public auction, on a credit until the 1st day of January, 1852, and it was purchased by John T. West for $550; and at the next term he made a report of the sale to the court, which was in all things approved and confirmed; and that John T. West, afterwards, sold that half also to his Montgomery and Wife vs. Johnson et al. father, and instead of taking the administrator's deed to himself, had it made directly to his father; and, upon the payment of the notes given in the original purchase, he and the administrator had Smalley to convey to him the legal title to the whole. A copy of the proceedings in the Court of Probate, was made and exhibited with the answer. The petition for the sale referred to, after stating that the estate had "an incomplete title to a certain body of land," describes it as "a tract containing 182.62 acres, in three parts, described more fully in Exhibit A, situate and lying in Montgomery Township, in said County of Monroe, in which said incomplete title said decedent owned and possessed at the time of his death, one undivided half, John West being tenant in common with him therein, and owning the other undivided half," and after showing the other debts that had come to his knowledge, proceeds thus: "Besides the indebtedness already specified, there is a fifth item going to complete the sum first above mentioned, consisting of a liability for the half in each of two notes executed to Robert Smalley, Esq., for the purchase money to be paid for said tract of land, each note being for $266.66, one due the 1st of January, 1852, and the other January, 1853; that it was in this way that incomplete title to said land was obtained, together with a bond for title executed to the said decedent and the said John West by the said Robert Smalley, a copy of which recorded in Record Book D, is herewith exhibited and made a part of this petition, marked Exhibit A, p. 125," and it further states that the estate owned no other lands. If such an exhibit as that referred to accompanied the petition, it does appear in the record, and it seems likely that the recorded copy only was intended to be referred to. A copy of the bond was, however, filed as an exhibit with the complaint, and contains the same description of the land as is contained in the complaint. Montgomery and Wife vs. Johnson et al. The order of the sale is as follows: "Be it remembered that on this day comes John A. Harvick, administrator of the estate of Joseph West deceased, by attorney, and presents his petition to the court accompanied by his own affidavit, and that of John T. West, showing that there is belonging to said estate an incomplete title to the undivided half of a certain tract or parcel of land described in said petition, praying that the same may be sold for the benefit of creditors, and the court having considered of the matter, orders the same to be sold. at public auction, giving notice according to law, and taking bonds for the purchase money with approved security, payablenot more than twelve months after date." In the report of the sale, which refers to the order as authority therefor, the land is described as "the undivided half of the N.. E. of the N. E. of Section 23. Half the grant of M. Price; and the N. frl. 4 of the N. W. of Section 23; all in Township. No. 3, S. of Range No. 1, West of the fifth principal meridian line, containing in all 182.62 acres.” And the following is the order confirming the sale: "On this day the report of John A. Harvick, administrator of the estate of Joseph West, was presented to the court, of his proceedings of the sale of lands mentioned and set forth in said report, which was carefully examined and approved by the court." Upon the hearing, the complaint was dismissed for the want of equity, and the plaintiffs appealed. The appellants contend that as there is in the order for the sale no description of the land, it does not appear that it related to or directed the sale of that in controversy. This objection might prevail if there was nothing in the record or proceedings of the Court of Probate to designate the land, but it is a maxim of law, that that is sufficiently certain which can be made certain, and we find evidence of the most conclusive character in. |