Palmer v. Oakley. in the aforesaid estate, for the purposes aforesaid; the said guardian, previous to said sale, to take the oath by law prescribed, and to give notice of such sale, by causing an advertisement thereof to be published in a newspaper, printed in said city of Detroit, three weeks successively, at least thirty days before the day appointed for said *sale, and [443] give bond with two sureties, according to the statute, in the sum of three thousand dollars." Notice that the premises would be sold in pursuance of the foregoing license, on February 4, 1832, at 3 o'clock P. M., at, etc., was published for three weeks successively (the first publication having been December 28, 1831), in the Detroit Journal, a newspaper printed in the city of Detroit, and an affidavit of the publication, etc., was filed and recorded in the probate office, pursuant to the act of 1818 (ante, p. 439), on the 3d February, 1832. It will be observed that the notice, though in accordance with the requirements of the license to sell, was not such as was prescribed by the act of 1827 (ante, p. 437, § 1), but was such notice as the act of 1818 (ante, p. 440, § 6) authorized the probate court to direct executors and administrators to give, etc. A bond to observe the directions of law respecting the sale, etc., required by the foregoing license to sell, and by the act of 1827 (ante p. 438, § 5), was filed and approved by the judge of probate, on the said 3d day of February, 1832. The bond was executed by the said Archange, and by William H. Simmons, therein recited to be her husband, as principals, and by two sureties. On the same day the said Archange made the oath to use her best skill and judgment in fixing the time and place of sale, etc., required by R. S. 1827, p. 71, § 18 (see ante, p. 440, §18), and returned the same duly certified to the judge of probate. On the day following, which was the time specified there Palmer v. Oakley. for in the notice of sale, the premises in question were sold, pursuant to the notice, to, through whom the defendant in this case derived title, he being the highest bidder; and a guardian's deed was thereupon executed to him accordingly, by said Archange, in which said William H. Simmons, her husband, did not join. [444] *No affirmance by the probate court of sales by guardians was required by the statute. On the trial, it was insisted on the part of the plaintiffs, that the defendant had failed to establish a valid title under these probate proceedings; because, 1. It did not appear, on the face of the decree appointing Archange Simmons guardian, nor was it shown by evidence aliunde, that the plaintiffs (the alleged minors) were under fourteen years of age, or that they were cited to choose a guardian. 2. The decree was void because, as appeared on its face, said Archange was, at the time, a married woman; a feme covert being incompetent to be a guardian. 3. The guardianship bond executed by said Archange and her sureties, was void; said Archange being incompetent to execute a bond, by reason of her coverture, and her husband not joining therein. 4. The notice of sale of the premises in controversy by said guardian, was not in accordance with the requirements of the statute, and was given before said guardian had taken the oath to use her best skill and judgment in fixing the time and place of sale, etc. (ante, p. 440, § 18), and before the execution and approval of the bond to observe the rules and directions of law in making the sale, etc. (ante, p. 438, § 5). 5. The deed of the said Archange, in consummation of the guardian's sale, was executed by her while a feme covert without her husband joining therein. Palmer v. Oakley. These several objections to the validity of the title shown by the defendant, were overruled by the circuit court. 6. The plaintiffs also, during the trial, offered to introduce evidence to show, that, at the time of the decree appointing the said guardian, Thomas Palmer, one of the alleged minors, was over fourteen years of age. To this *evidence the defendant objected, and the objec- [445] tion was sustained by the court below. The case went to the jury, who found a verdict for the defendant; whereupon, the plaintiffs moved that the verdict. be set aside, and for a new trial, on the ground that the ruling of the circuit court, upon each of the several points above mentioned, was erroneous. The questions arising upon this motion were reserved, by the presiding judge, for the opinion of this court. Walker, Douglass & Campbell, and H. T. Backus, for the plaintiffs: 1. Archange Simmons, being a feme covert, was not competent to be a guardian, and her appointment and all her acts as guardian were therefore void. A feme covert is not competent to execute the bonds which the statute (ante, p. 436, § 5, p. 438, § 5) required a guardian to give, with sureties; such bond executed by her would be void: 2 Steph. Com., 302; 1 Peters, 338; 1 Hill, 242; and a sale of real estate by a guardian without giving bonds, would be void: Williams v. Reed, 5 Pick., 479; 1 Denio, 184. True, it has been held in England that a feme covert might be an administratrix, but this was before 22 or 23 Car. II., which required administrators to give bonds: 1 Com. Dig., Tit. Admr., B. 6, n. (o), p. 487. 2. The circuit court erred in refusing to permit the plaintiffs to prove, that, at the time Mrs. Simmons was appointed guardian, Thomas Palmer, one of the alleged minors, was over fourteen of age. years Palmer v. Oakley. R. L. 1827, p. 57, § 1, required that before the probate court should appoint a guardian for a minor over fourteen years of age, and within the territory, the minor should be cited to appear and choose his own guardian. The probate record shows that the guardian was appointed [446] *without citation of any of the minors, and upon the assumption that they were all under fourteen. Whenever parties to, or who are affected by, judicial proceedings, whether in rem or in personam, are by law entitled to notice of such proceedings, by service of process, citation, or otherwise, such notice is essential to jurisdiction: Bloom v. Burdick, 1 Hill, 139, 141, 142; Matter of Underwood, 3 Cow., 59; Chase v. Hathaway, 14 Mass., 222; Dunning v. Corwin, 11 Wend., 647; Wait v. Maxwell, 5 Pick., 217; Hathaway v. Clark, Id., 490; 4 C. & H. Ph. Ev., 865, 999; Hollingsworth v. Barbour, 4 Peters, 472; 18 Pick., 116. The evidence offered, then, went to show, that as to Thomas Palmer, the probate court had, in fact, no jurisdiction to make the decree appointing the guardian. It will not be denied that the decree of a court which has not jurisdiction is void. It is well established that "the jurisdiction of any court, exercising authority over a subject matter, may be inquired into in every other court where the proceedings of the former are relied upon and brought before the latter by the party claiming the benefit of such proceedings:" Elliott v. Piersol, 1 Pet., 340; Hickey's Lessees v. Stewart, 3 Howard, 750. It makes no difference whether the judgment is sought to be impeached in an action directly upon it, or in a collateral action like the present: Ibid.; Holyoke v. Haskins, 5 Pick., 20; Bloom v. Burdick, 1 Hill, 139; Bigelow v. Stearnes, 19 Johns., 40; 4 Ph. Ev. by C. & H., 910, 911, 912, 913, and other cases post. Or whether the validity of the judgment is drawn in question in the courts of the Palmer v. Oakley. state where it was rendered, or of a sister state: Ibid. Or whether the judgment be that of a court of inferior or limited, or of superior or general jurisdiction (except as to the burden of proof of want of jurisdiction); or whether it be the judgment of a court of *record or not: 4 [447] Ph. Ev. by C. & H., 1021; Bloom v. Burdick, 1 Hill, 139; and 17 Wend., 483, there cited. All the cases agree that, where a want of jurisdiction appears on the face of the record, the judgment will be treated as a nullity, whenever sought to be enforced, or any rights are claimed under it: 1 Hill, 139; 11 Ohio, 442. And the general rule is, that a judgment may be impeached by evidence aliunde, showing a want of jurisdiction. Thus, all the cases hold that want of jurisdiction over the person may be shown aliunde: Bigelow v. Stearnes, 19 Johns., 40; Aldrich v. McKinney, 4 Conn., 380; Shumway v. Stillman, 6 Wend., 447; Tenny v. Filer, 8 Id., 569; Starbuck v. Murray, 5 Id., 148; Bradshaw v. Heath, 13 Id., 407, 408; Colvin v. Luther, 9 Cow., 61; Clark v. Holmes, 1 Doug. Mich., 390. So where jurisdiction depended upon the character or occupation of the party, evidence has been admitted to show that he was not of such character, etc.: Morse v. James, 1 Willes, 122; Perkin v. Proctor, 2 Wils., 382; Wise v. Withers, 3 Cranch, 331; Mills v. Martin, 19 Johns., 7. So where jurisdiction depended upon residence, evidence has been admitted to show that the residence was not such as to confer it: Cutts v. Haskins, 9 Mass., 543; Holyoke v. Haskins, 5 Pick, 20; Weston v. Weston, 14 Johns., 428; Wyman v. Mitchell, 1 Cow., 316. So, it would seem, that wherever the judgment, order, or decree was obtained ex parte, and the persons affected by it are not bound to take notice of the proceeding, all jurisdictional facts may be inquired into to impeach such judgment: Welsh v. Nash, 8 East., 391; Perkin v. Proctor, 2 Wils., 382; per Dallas, C. J., and Burrough, J., in Brittain v. VOL II. 28 433 |