The appeal in this case is prosecuted from the decree of the chancery court dismissing complainant’s bill for Avant of equity on respondent’s motion. The purpose of the bill is the sale of the land described, for division between the complainant and respondent as tenants in common. The complainant
It is here contended by the appellant in the first place, that the petition filed by the administrator in the probate court shows on its face, that the court never acquired any jurisdiction in the proceeding to sell the land, and that, therefore, the decree of sale made by that court and all proceedings had thereunder are null and void. And in the second place, if the probate court acquired jurisdiction, that the decreé is invalid as to the complainant for the reason that she was never made a party to the proceedings had for the sale of the land. From the foregoing statement it will be seen that we have presented for consideration practically but two questions. The first is, as to whether or not the decree of the probate court for the sale of the land is void for want of jurisdiction; the second is, as to whether or not, after jurisdiction is acquired ¡by the probate court in a proceeding to sell land of the estate of a decedent, errors subsequently occurring in the proceedings will avoid the same.
It may be here observed, that if the decree of the probate court is void for want of jurisdiction, it is void in toto, and no title could pass to the purchaser at the sale had under the decree; all subsequent proceedings being an absolute nullity. On this phase of the facts the bill would be wanting in equity, as there could be no parti
We will consider tlie two questions presented in the inverse order of their statement above. That a petition by an administrator to the probate court for the sale of lands of his intestate’s estate for the payment of debts, is essentially a proceeding in rein, has been so often decided 'by this court, that it is unnecessary to cite authorities. And it is equally as well settled that in such cases, after jurisdiction has attached upon the filing of a petition by the proper party, Avho is the administrator, containing jurisdictional averments, the decree of the court, for errors and irregularities subsequently occurring in the proceedings, cannot be brought into question upon a collateral attack. It has also been definitely determined by this court, that the failure to make an heir a party to the proceeding, Avhetlier adult or infant, is immaterial, does not render a decree of sale open to collateral attack, although such , an error may Avork a reversal on direct appeal. The names of the heirs not being an essential jurisdictional averment in the petition, their omission, when the decree is called into question collaterally, is deemed an error or irregularity intervening after jurisdiction acquired. — Lyons v. Hamner, 84 Ala. 197; Duval’s Heirs v. McLoskey, 1 Ala. 708; Duval’s Heirs v. P. M. Bank, 10 Ala. 636; Field’s Heirs v. Goldsby, 28 Ala. 218; Matheson’s Heirs v. Hearin, 29 Ala. 210; King v. Kent’s Heirs, 29 Ala. 542; Satcher v. Satcher, 41 Ala. 26.
We come noAV to the consideration of the first proposition presented by appellant’s contention — did the probate court acquire jurisdiction 'in the proceedings had in that court for the sale of the land in question? This must be determined from the averments contained in the petition filed by the administrator in that court. The petition avus filed February 18th, 1879, No question is raised as to the averment in the petition of an insufficiency of personal property to pay debts, for it is distinctly averred that there was no personal property, but it is here urged that the averment in the petition as to the existence of debts of the estate is insufficient. The
While a bill should never be finally dismissed 'by decree rendered in vacation on motion to dismiss for want of equity without first giving the complainant an opportunity to amend, the reason of the rule ceases when it is manifest that the bill cannot be amended without entire departure so as to give it equity. Such is the case here. There is no error in the record, and the decree must be affirmed. •