Thе material issues presented by the record in this case involve the right of the defendants in error, T. B. White et al., to impeach the judgments of the probate court, of Anderson county, by which administrаtion was granted upon the estate of Stephen White, and a sale of property ordered thereunder; first, for want of jurisdiction; second, on the ground of fraud.
I. Impeachment of the judgment for want of jurisdiction.
Much confusion on this subject has arisen from an indiscriminate use of the wоrds void and voidable.
A void act is one entirely null within itself, not binding on either party, and which is not susceptible of ratification or confirmation. Its nullity cannot be waived.
Thus, the judgment of a court which does not havе jurisdiction over the subject matter, is void and cannot be made a valid judgment, as in such case, different from that of jurisdiction as a personal privilege, it cannot be conferred by consent.
A voidable act is one which is not absolutely void within itself, but which is binding until disaffirmed, and which may be made finally valid by failure within the proper time to have it annulled, or by subsequent ratification or confirmation.
Thus, the judgment of a court having jurisdiction, if so irregularly or erroneously rendered as to make it liable to be vacated by a direct proceeding for this purposе, or to be reversed on appeal or writ of error, is nevertheless valid until thus vacated or reversed. McNamara on Nul
*82
lities; Cummings
v.
Powell,
It is believed that a careful analysis of the cases on this subject will show that, in a collateral proceeding, the only contingency in which the judgment of a domestic court of general jurisdiction, which has assumed to act in a case over which it might by law take jurisdiction of the subject matter and the person, can be questioned, is when the record shows
affirmatively
thаt its jurisdiction did not attach in the particular case. Freeman on Judgments, §§ 131-4; id., § 334; Hammond
v.
Wilder,
This question in such a proceeding must be tried by the recitals in the record itself and the presumptions arising thеrefrom. If they show a case of jurisdiction, then in a collateral proceeding, upon grounds of public policy, the record purports absolute verity and is conclusive. Freeman on Judgments, §§ 132-4.
If, however, from the record itself, it should affirmatively appear, either that the court did not have jurisdiction of the subject matter, or of the person, in a casе where this was also required, or that the jurisdiction had not attached in the particular case, then the question can be raised upon objection to the record when offеred in evidence, and no affirmative proceeding need be prosecuted to vacate it. Being a nullity upon its face, it could not legally be invoked against those whose just rights were sought to be affected by it.
As a general rule, in all other cases where such judgment is sought to be collaterally impeached by matters
dehors
.the record, and which must be sustained by proof aliunde, as in case of alleged fraud of a party, this must be done by some proper affirmative proceeding, and which
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also, upon grounds of public policy, must be instituted within the time enjoined by law. Pearson
v.
Burditt,
Under our constitution and laws, the county court of Anderson county as a court of probate is one of record and of general jurisdiction in аll matters relating to the administration of estates of deceased persons. Guilford
v.
Love,
Its proceedings are in the nature of those in rem.
As said in Grignon’s Lessee
v.
Astor, “on a proceeding to sell the real estate of an indebted intestate, there аre no adversary parties; the proceeding is
in rem;
the administrator represents tíre land (11 S. & R. 432); they are analogous to proceedings had in admiralty, where the only question is the power of the court over the thing, the subject matter before them, without regard to the person who may have an interest in it; all the world are parties. In the orphans’ court, and all courts which have power to sell thе estates of intestates, their action operates on the estate, not on the heirs of the intestate; a purchaser claims, not their title, but one paramount. The estаte passes to him by operation of law. The sale is a proceeding
in rem,
to which all claiming under the intestate are parties, which divests the title of the deceased.”
II. Impeachment of the judgment and proceedings on the ground of fraud.
Upon the question of the effect of fraud in avoiding a transaction, much confusion has also аrisen from want of proper limitation upon the maxim that fraud vitiates everything, even the solemn judgments of a court of record.
The fraud of a party does not render the transaсtion absolutely void within itself, but simply affords the ground to have it declared void by a proper proceeding for this purpose, and which should be instituted within the proper time. It is but the causе from which this effect can be obtained.' Benjamin on Sales (2d ed.), 342-3; Pearson
v.
Burditt,
This principle, as between parties and privies, applies to judgments obtained by the fraud of a party. Freeman on Judgments, 334-6; Atkins
v.
Kinnan,
An exception to this rule exists in favor of strangers to the judgment. Not having been parties, it is not res adjudicaba as to them, and they do not have the right to vacate or reverse it by а proceeding for this purpose. From the necessity of the case, as a general rule, they are therefore permitted to set up the defense of fraud in obtaining a judgment, whenever it is attempted by it to affect their rights. Freeman on Judgments, secs. 334-6.
That there may be an end of litigation, this exception does not extend to parties and privies, but they arе re
*86
quired within a reasonable time to have such judgment reversed by appeal or error, or vacated by bill of review, or bill in chancery in the nature of a bill of review. Voorhees
v.
Bank of United States,
Our statute in force at the date the proceedings were had, under which the sale of the land in controversy is here sought to be set aside, required appeals, writs of errоr and bills of review to be prosecuted within two years from the date of the judgment. Pasch. Big., arts. 1382, 1496, 4616.
• This has been construed to apply to a suit to bring into review the merits of an original judgment upon any other ground than its nullity. Chambers
v.
Hodges,
In the case of Kleinecke
v.
Woodward,
This defense was expressly pleaded to the alleged fraud in this case, and the defendants in error failed to reply and bring themselves, and those under whom the minors claimed, without the bar of the statute.
As thus presented, the defense was good and should have been sustained. .
III. A valid sale of community land, made under the administration upon the estate of T. B. White, to pay community indebtedness, would pass both the title of White and the surviving wife, who died prior to the grant of administration. Simmons
v.
Blanchard,
The opinion virtually disposes of the other questions in the case.
Reversed and remanded.
[Opinion delivered October 19, 1880.]