Blackwell v. Townsend

JUDGE BENNETT delivered the opinion op the court. The administrator of James Townsend, deceased, brought an action in the Estill Circuit Court to sell his decedent’s land to pay his debts. The following is the only statement of title to the land or description of it given in the petition: “That said James Townsend, Sr., was seized and possessed, at the time of his death, of a tract of-acres of land lying in this (Estill) county, and the same whereon he resided at the time of his death.” No title papers appear in the pleadings; nor is there any paper filed with the pleadings that shows a description of the land other than the allegations quoted. Judgment was rendered for the sale of the land as it was described in the petition. , The commissioner advertised the sale of the land, and reported the sale of it by the same description quoted, and the court confirmed his report, and ordered the deed made to the purchasers by the same description; but the commissioner conveyed by deed to the purchasers two tracts of land, by metes and bounds, lying in Estill and Powell counties — one containing six thousand nine hundred and nineteen acres, and the other containing five hundred acres. The purchasers relied on this deed as a link of their title in an action of ejectment against the appellees, who were claiming a part of the land by adverse possession. This deed being essential to the appellants’ right to recover the [612] possession of the land, and the court deeming that it conferred no title upon them, instructed the jury to find for the appellees. » There is no doubt that the action by James Townsend’s administrator to sell the decedent’s land was an action in rem. In such action it is as essential for the court to have actual jurisdiction of the particular thing as it is for it to have actual jurisdiction of the parties. Jurisdiction of the latter can only be acquired by citing them to appear by lawful authority, and in the manner prescribed by law. Jurisdiction of the former can only be acquired by bringing the thing before the court in the manner prescribed by law, to wit: 1 ‘A petition for the recovery of land, or for its subjection to a demand of the plaintiff, must describe it so that it may be identified.” (Section 125, Civil Code.) If the land is not thus brought before the court, the court has no jurisdiction of it, and a sale of it under judgment will pass no title. If jurisdiction of the court has not attached to the particular land, the sale of it is void; consequently it may be attacked in any collateral proceeding involving the title acquired by such sale. But such sales are not affected in collateral proceedings on account of mere defective pleadings or other irregularities that do not affect the jurisdiction of the court. Direct appeal in such a case is the only remedy. If, however, as said, jurisdiction is wanting in the court, the sale is void. (Dorsey v. Kendall, 8 Bush, 294.) In the latter case the report of the commissioner of the sale and the confirmation of the report can not give validity to the sale, because the jurisdiction of [613] the court must attach to the thing before it can order its sale, and as that jurisdiction is wanting, the sale, report of it, and its confirmation, are nullities. Although the petition may describe the land defectively, yet, if it may be identified by the description, the court has jurisdiction, and the order of sale, report of sale, its confirmation, and deed substantially conforming, but curing the defects, &c., the sale is not void. The description quoted was certainly defective, but whether or not it was defective enough to deprive the court of jurisdiction it is unnecessary to decide, for the reason that land sold and conveyed does not conform to that described in the petition. It is as essential that the land sold should substantially conform to that described in the petition as it is that the land should be described “so that it may be identified.” A want of such conformity, as if the sale is of a different tract of land from that described in the petition, renders the sale void. (Rorer on Judicial Sales, sec. 63, 2d ed.; Wheatly v. Tutt, 4 Kan., 195.) This is the reason of the rule: As the land must be described “so that it may be identified” in order to give the court jurisdiction, it follows that the sale of a different tract of land under the decree is a sale of land without the required description; hence, the sale is void. Here the land is described as--acres, lying in Estill county, on which the deceased lived. The commissioner sold and conveyed two tracts of land lying in Estill and Powell counties, a part of which is certainly not the land described in the petition, and the parcels .of ,land in controversy compose [614] that part, the sale oí which was void; consequently, the instruction was correct. We do not wish to be' understood as intimating that the sale of no part of said land was valid. We do not express an opinion thereon. Nor do we decide that the purchasers of said land are not entitled to any appropriate action to the end of subjecting said land to the payment of the purchase money, &c. The judgment is affirmed.