Doe on the demise of Mitchell v. Bowen

Perkins, J. Ejectment. Judgment for the defendant. The lessor of the plaintiff claims title as the sole heir of James Mitchell, deceased, and is entitled to recover if he had not been deprived of his title to the land by a sale made by the administrators upon his father’s estate, through which the defendants derive title. The validity of that sale must be determined upon a simple inspection of the Probate Court record, no extrinsic evidence having been given. That record shows, as it appears by the transcript before us— 1. The appointment of the administrators. 2. An inventory and appraisement of the real estate of James Mitchell, deceased, made and filed in the clerk’s office on the 11th day of November, 1834, but making no mention of the existence of any heir, and praying no notice, &c. 3. An order of the sale of said real estate made on the same day on which the inventory was filed. 4. An order made on the 9th of February following, confirming the sale. In Horner v. Doe, 1 Ind. R. 130,'it is said that where the record is silent upon the point, notice may be presumed ; but this rule applies only in cases where the. heirs have been made parties to the record. Here, there [199] is no mention made, in any part of the record reciting the proceedings touching the sale, of the existence of an heir; and, surely in such case, we cannot presume that any heir was notified. See Martin v. Starr, 7 Ind. R. 224 The record in such ease is not silent but speaks negatively. D. D. Pratt and PL Allen, for the plaintiff. Z. Baird, for the defendant. But, even had the application for the sale contained a statement of the names or name of heirs or heir, still as the order of sale was made on the same day the application was filed, the record shows that the statutory .notice of thirty days by service, or sixty days by publication, after the filing of such application, could not have been given; and no motion was made on behalf of the heir, as in the case of' Thompson v. Doe, 8 Blackf. 336, indicating an actual presence in Court, whereby, formal notice might be rendered unnecessary. It is shown by the record that a year subsequent, to the sale a guardian was appointed by the Probate Court for the lessor of the plaintiff, then the infant heir of James Mitchell; but that has nothing to do with the proceedings leading to the sale by the administrators. A deed of the administrators ’to the purchasers at the sale also appears, which contains various recitals; but these recitals do not appear to have been, nor was the deed itself, ever before the Probate Court, and they are not evidence. The sale in this case, then, having been ordered and confirmed without notice to the heir, is void. The Court acquired no jurisdiction to act in the premises (1). Per Curiam. The judgment is reversed with costs. Cause remanded, &c. Stuart, J., was absent in this case. Footnotes [(1)] X) Where judicial proceedings in one State have come under review in the courts of another, they have with great unanimity been disregarded as nullities, in cases where notice to the defendant did not appear. Kibbe v. Kibbe, Kirby, 199. — Phelps v. Holker, 1 Dale, 261. — Kilbourne v [200] Woodworth, 5 Johns. 37. — Robinson v. Executor of Ward, 8 Johns. 90.— Fenton v. Garlick, id. 194. — Pawling v. Bird’s Executors, 13 Johns. 192.— Borden v. Fitch, 15 Johns. 121. See, also, Fisher v. Lane, 3 Wils. 297; Buchranan v. Rucker, 9 East. 192; Holt v. Alloway, 2 Blackf. 108; and Cone v. Cotton, 2 Blackf. 82. And it is not easy to perceive on what ground a distinction can he taken between a domestic judgment and one rendered in another State of the Union. Mills v. Duryee, 7 Cranch, 481; Const. U. S. Art. IV. s. 1; Acts of Congress of May 26, 1790, and March 27 1804. The Indiana cases which bear hardest against the plaintiff are Thompson v. Doe, and Horner v. Doe, cited in the opinion, supra; Doe v. Smith, 1 Ind. B. 458, in which the record showed that due notice had been given by publication; Williams v. Sharp, 2 Ind. R. 101, in which, also, the record showed notice. Nor is Lessee of Nelson v. Moon et al, 3 McLean, 319; or 1 Saund. 74 and notes; or Mills v. Martin, 19 Johns. 33, in point. - But Westerwelt v. Lewis et al. 2 McLean, 514, is directly in point. The above authorities,were all before the Court in argument.