Doe, ex dem. Saltonstall and wife, v. Riley and Dawson.

7. There was not sufficient notice of the sale.-6 Port. 245; 7 Ala. 864; 16 ib. 233. The record must show that legal notice was given.-1 Sm. & Mar. 351; 7 ib. 449; 7 Barb. 45; 3 Denio, 249; 20 Wend. 249; 4 Geo. R. 148; 6 Port. 245; 11 Ala. 118-20.

8. The land sued for is not the land described in the petition, in the order of sale, or in the report of the sale. Parol evidence is not admissible to change the description contained in them.-70 En. Com. Law R. 260; 6 N. H. 205; 5 Hill, 272; 5 Ired. Eq. 373; 3 Ala. 623; 14 ib. 347; 13 ib. 38; 15 ib. 768; Phil. Ev. (C. & H. Notes), 571. Streets, being the most durable monuments, must govern description.-9 Iredell, 58. 9. As to the charges given and refused by the court:

The first charge given is erroneous, because, 1st, the record shows that an administrator had been appointed previous to the appointment of Lane, and there is nothing in it showing that the office had been vacated when Lane was appointed; 2dly, it does not appear upon which petition the court acted; 3dly, the notice by law required was not given to the minor children; 4thly, the appointment of Judson as guardian ad litem was unauthorized; 5thly, no notice was given to the guardian, as required by law; 6thly, the record does not show that the guardian appeared and answered; 7thly, the commissioners did not give notice of the sale as required by law; 8thly, the notice first published by them described the property as belonging to A. Robertson, and the correct notice afterwards given was not published a sufficient time before the sale; 9thly, a portion of the land was described in the notice as being bounded on the east by Claiborne (instead of Franklin) street; 10thly, the order of sale misdescribed the lots; 11thly, the commissioners, as shown by their report, did not conform to the terms of the decree, as to the form of security to be taken by them; and, 12thly, the record does not show any evidence of the necessity for the sale. The same reasons show that the third charge given was erroneous.

The second charge given was erroneous, because it referred the construction of the record to the jury, when it was the duty of the court to determine whether the record showed that the orphans' court had jurisdiction.-3 Ala. 237; 5 Port. 64; 2 Stew. & P. 193; Spivey v. The State, 26 Ala. 90.

Doe, ex dem. Saltonstall and wife, v. Riley and Dawson.

The fourth charge was erroneous, because the orphans' court could not act upon two petitions which were inconsistent with each other, and the transcript should have disclosed upon which petition it acted.

The fifth charge was erroneous, because it was improper to refer to oral testimony to ascertain the identity of the land. That the first charge asked should have been given, see 1 How. (Miss.) 440; 1 Cushm. (Miss.) 550; 5 English, 169. That the second charge asked should have been given, see 6 Port. 245; 11 Ala. 120; 3 Barb. 341; 7 ib. 45.

That the third and fourth charges should have been given, see 6 Ala. 607; 16 ib. 693; 3 Barb. 341; 2 Coms. 459.

As to the fifth charge asked, see 10 Paige, 366; 1 Munf. 489; 11 Humph. 488; 9 Ala. 793; 12 ib. 268; 15 ib. 768; 16 ib. 238; 4 ib. 248; 2 ib. 662.

As to the sixth charge asked, see 6 Port. 245; 7 Ala. 764; 16 ib. 233; 20 Wend. 249; 7 Barb. 45; 1 Sm. & Mar. 351; 7 ib. 454; 4 Geo. 118.

As to the seventh charge, see 70 E. C. L. R. 260; 6 N. H. 205; 5 Hill, 272; 5 Ired. Eq. 373; 13 Ala. 38; 15 ib. 768.

That the eighth charge should have been given, without any qualification, see 4 Ala. 116; 11 ib. 535, 1059; 13 ib. 222, 537; 16 ib. 720.

Each of the other charges asked asserted a correct legal proposition, and was authorized by the evidence; they should, therefore, have been given.

P. HAMILTON and R. H. SMITH, contra, contended,―

1. That each of the petitions, which were received and acted on by the court, alleged the existence of the fact necessary to give the court jurisdiction-viz., that the personal estate was not sufficient for the payment of the debts; and the jurisdiction of the court, therefore, fully attached.—Lightfoot v. Heirs of Lewis, 1 Ala. 475; Duval's Heirs v. P. & M. Bank, 10 ib. 636, 652. All reasonable intendments will be made to support that jurisdiction.-6 Porter, 219, 262; 1 Ala. 475, 733; 15 ib. 761; 16 ib. 652.

2. These jurisdictional facts appearing of record, irregu larities and errors in the proceedings will not be regarded in this suit, which is collateral merely.-6 Porter, 219, 262; 1

Doe, ex dem. Saltonstall and wife, v. Riley and Dawson.

Ala. 710, 730; 6 ib. 324; 10 ib. 652; 2 How. (U. S.) R. 319; 12 ib. 385.

3. The transcript from the orphans' court shows all that was necessary for a purchaser to look to-viz., that the case was within the jurisdiction of the court; that the court took actual jurisdiction, and made an order of sale; and that the acts of the commissioners were approved by the court.

4. The main charge given by the court correctly declares the law of the case; and the charges asked by the plaintiffs, which are based upon mere irregularities in the action of the orphans' court, were rightfully refused. The alleged irregularities, except those which refer to the description of the land, raise the question whether the action of the court can be collaterally impeached,—a question which involves the validity of titles to a considerable portion of the lands in this State, and which is settled by the uniform decisions of this court since the case of Wyman v. Campbell, 6 Porter, 246, which overruled the doctrine asserted in 2 Stew. 331, and 3 Stew. & P. 355.-Lightfoot v. Doe d. Lewis, 1 Ala. 475; Duval v. McLoskey, ib. 730; same case, 10 ib. 652; Price v. Wilkinson, 10 ib. 172; Bonner v. Greenlee, 6 ib. 411; Perkins v. Perkins, 7 ib. 855; Cox. v. Davis, 17 ib. 714. The objections specified in the 2d, 3d, 4th, 5th and 6th charges asked by the plaintiffs, are specifically overruled in these cases. The same principles have been repeatedly affirmed by other tribunals.-2 How. (U. S.) R. 318; 12 ib. 385; 2 Peters, 169; 11 Mass. 227; 11 Serg. & R. 427.

5. The other charges asked refer to the description of the land, and seek to establish as a fatal error the substitution, in some of the proceedings, of Claiborne instead of Franklin street as the eastern boundary. In 1824, Mobile was a small village; and its streets, probably, were mere roads, without any well-known names. Claiborne street is now the ninth street from the river. It will be observed that the land sold consisted of two tracts, each containing three lots, which are uniformly described as adjoining each other; the western boundary of the whole always being Hamilton street. The distances given always correspond, and show that the land claimed by the defendants under their purchase is the land that was intended; and the commissioners' deed, with the

Doe, ex dem. Saltonstall and wife, v. Riley and Dawson. continuous possession under it, clearly establishes the fact. There is no point which must be assumed absolutely as the place of beginning; but, if any point is to have precedence, it must be Hamilton and Dauphin streets, which are mentioned in all the descriptions; and beginning at that point, there is no difficulty in arriving at the result. It is not a case for the application of the rule that natural or permanent monuments control course and distance; it is a question of identity. But, if streets are to govern course and distance, the proceedings authorized a sale of lands from Claiborne to Hamilton street; and the heir cannot complain that a less quantity was conveyed to the purchaser. Besides, the lands claimed by the defendants are confessedly within these limits, and the other portion of the tract may have been conveyed by Bates to some other person.

6. The deed from the commissioners to Bates was part of the defendants' chain of title, and, therefore, properly admitted in evidence.

7. The testimony of Krebs was competent on the question of identity. In questions of boundary parol evidence is admissible.

8. No evidence of the death of Duval was necessary; the order appointing Lane would not be vitiated by the absence of all proof of Duval's death or resignation. Besides, parol evidence was the best proof of the fact.

CHILTON, C. J.-The main points involved in this case have undergone very thorough investigation, and we therefore deem it unnecessary to repeat what has been heretofore said by this court with reference to them. Upon a careful inspection of the record, and after a review of the adjudged cases, most of which have been collated with much ability and research by the respective counsel, we have attained the following conclusions:

1. That the record from the orphans' court of Mobile county affirmatively shows that said court had jurisdiction to make the order for the sale of the land of Alvan Robeshaw, deceased.

2. That having jurisdiction, and its action being in the nature of proceedings in rem, and the land having been sold by

Doe, ex dem. Saltonstall and wife, v. Riley and Dawson.

the order of the court, the sale approved by it, and a deed of conveyance executed by the commissioners in accordance with its mandate, such proceedings, though they may abound with errors for which an appellate court would reverse, are nevertheless binding and conclusive until they are vacated. They cannot be collaterally called in question.

3. Although two petitions for the sale of the intestate's land appear in the record, the orphans' court might well have regarded one as amendatory of the other, and have treated them both as constituting but one application. And although recitals in the decrees of courts of special, limited powers cannot give jurisdiction; yet, when the jurisdiction otherwise appears, as in this case by the exhibition of the petitions and the action of the court thereon, we may look to the decree, to see whether its action is predicated upon the petitions separately, or as constituting but one application. In this case, the decree, or order of sale, shows that both petitions were acted upon conjunctively; which, we have seen, the court might well do. That the petition may be identified by the entry, see 1 Ala. Rep. 38, and 4 ib. 388, which are analogous in principle, the courts in each case exercising a limited, special jurisdiction quoad the subject-matter.

4. We think there was no error in admitting proof of the death of Duval, as a jurisdictional fact, upon which the orphans' court acted in the appointment of the subsequent administrator. If it was erroneous, however, we should hold that it was not prejudicial to the appellant, since Duval was invested with the office of administrator, if installed at all, in virtue of his office as sheriff of Mobile county. As sheriff, he was the executive officer of said probate court; and the court must be presumed judicially to have known when his time. expired, and when the office was vacated by death. The matter, therefore, which was shown by the objectionable proof, conceding it to be objectionable, being in contemplation of law within the knowledge of the court, it is more consonant with reason and law to presume the court acted upon its own knowledge that the office was vacant by death of the incumbent, or by the expiration of his official term, than that it should attempt to depose one administrator by the appointment of another to the same office without otherwise removing the former.