Peyton, C. J.:
It appears from the record in this case, tbat James Torrey departed this life, leaving a last will and testament, dated July tbe 17th, 1858, by which be gave and devised to bis four daughters, Octavia Wofford, Ann Eliza Minter,.Mary Jane Torrey and Georgiana Torrey, each one-fifth of two thousand and fifty-eight acres of land, situated in Holmes county, in this state, and tbe other fifth of said land be gave and devised to tbe children of bis daughter, Josephine Harrington ; and tbat James W. Harrington, David Harrington and George Harrington, are tbe children of tbe said Josephine, by Ivy P. Harrington, her husband; tbat tbe said Mary Jane and Georgiana were infants under tbe age of twenty-one years, and tbat Jefferson L. Wofford was appointed their guardian by tbe probate court of said county of Holmes ; and, as such guardian, be filed bis petition in said probate court, alleging tbat said land is so situated tbat an equal division thereof cannot conveniently be made among said devisees, and prays for an order to sell bis ward’s shares or interest in tbe land, or tbe whole of said land, for tbe purpose of a division of tbe proceeds of tbe sale thereof among tbe devisees as tbe will directs. Whereupon, a citation was issued on tbe 24th day of August, 1859, returnable at tbe ensuing October term of tbe court, commanding tbe sheriff to cite Ivy F. Harrington, Josephine L. Harrington, James W. Harrington, David Harrington, George Harrington and Octavia Wofford, to [40]*40appear at said term of the court, to show cause, if any they can, why the prayer of the petition should not be granted. To this process the sheriff made the following return: “ Executed September 13, 1859 John Minter and Ann E. Minter, residents of the state of Alabama, were duly notified by publication of the application for a decree to sell the land devised as aforesaid.
At the October term, 1859, of said probate court, it appearing that James W. Harrington, David Harrington and Greorge Harrington were minors under the age of twenty-one years, and had no guardian, the court appointed James M. Stigler their guardian ad litem, who thereupon filed their answer to the petition. And the said Jefferson L. Wofford having given bond to secure the appropriation of the proceeds of the sale to the persons entitled thereto, the court made a decree for the sale of said land. And, in pursuance of said decree, the land was sold by the said guardian, Wofford, who reported the sale to said court at the December term thereof, 1859, which was approved and confirmed by the said probate court on the 22d day of December, 1859.
From this decree, James W. Harrington, David Harrington and Greorge Harrington prosecute this writ of error, and make the following assignments of error :
1. The return “executed” was not a sufficient return.
2. No bond was executed by Wofford, the guardian, securing the proceeds arising from the sale of the land to all the devisees in the will.
3. The court ordered all the land left by James Torrey to be sold and the proceeds divided among the devisees, but required no security given for the payment of the portions of the devisees.
4. There was no allegation in the petition of the guardian for the sale of the land, as to whether the minors had any near relations in this state, and none as such were cited.
5. The parents of J. W., David and Greorge Harrington, [41]*41as such were not served with process on account of their children.
6. There is no evidence that commissioners were appointed to see if the land could he divided.
7. The probate court had no jurisdiction to decree a sale of the land, because the land was not susceptible of division, that power belonged entirely to the chancery court.
The first and last assignments of error, going to the jurisdiction of the court, seem, very properly, to be regarded by counsel for the appellants, as presenting the main questions in the cause for our consideration and determination.
It is insisted that the decree of the court below, ordering a sale of real estate, is not only erroneous, but void, for the want of sufficient return of the service of process upon the defendants. We do not think so; there is a very clear and obvious distinction between a total want of service of process and a defective service of process as to their effect in judicial proceedings. In the one case, the defendant has no notice at all of the suit or proceeding against him. The judgment or decree in such case, it is conceded, is coram nonjudiee and void, upon the principles of law and justice. In the other case, the defective service of process gives the defendant actual notice of the suit or proceeding against him, and the judgment or decree in such case, although erroneous, would be valid until reversed by a direct proceeding in an appellate jurisdiction, and its validity cannot be collaterally called in question. And this view of the law is believed to be sustained by reason, principle and authority. The case of Smilk v. Bradley, 6 Smedes & Marsh. 492, decides that a defective return of process presents the question of error or no error.
In the case of Campbell v. Hays, 41 Miss. 562, the purchaser of property at the administrator’s sale, when sued upon his promissory note given for the "property thus bought, defended on the ground that the decree of the pro ■ bate court, authorizing the sale of the property, was void, being made without proper service of process on the dis-[42]*42tributees, and without service of process on the fathers of two of said distributees who were minors, having no guardians. The court, in a well-considered opinion delivered by Judge Ellett, say : “ We think it proper to say that we have not held that judgments and decrees are absolutely void, and may be collaterally impeached, merely on the ground that the return of the service of process is not made in the formal manner prescribed by the statute. On the contrary, we are of opinion that where a judgment by default is taken upon a return which purports to show that the process has been actually executed, such judgment is valid and binding whenever it comes collaterally in question, although the defendant might reverse it upon writ of error, on the ground of the insufficiency of the return.” It was held, that the decree of sale in that case, made by the probate court, founded on a defective return of process, was not void, and until reversed by a direct proceeding in an appellate tribunal, it must be regarded as a valid order of sale. In the case under consideration, the return on the process is defective, according to the repeated adjudications of this court, and for that reason the decree is erroneous.
We think the second and third assignments of error are not well taken. The record shows that the guardian gave a bond which was approved by the court, which we think was sufficient to secure the proper application of the proceeds of the sale, and the court refer, in the order of sale, to the fact of the guardian having filed his bond with the approval of the court for the purpose of securing a division of the proceeds of the sale among the devisees.
The fourth, fifth and six assignments will be considered together. It is not deemed necessary, in an application for an order to sell the interest of minors in real estate, to state whether the minors have any near relations in this state.
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Peyton, C. J.:
It appears from the record in this case, tbat James Torrey departed this life, leaving a last will and testament, dated July tbe 17th, 1858, by which be gave and devised to bis four daughters, Octavia Wofford, Ann Eliza Minter,.Mary Jane Torrey and Georgiana Torrey, each one-fifth of two thousand and fifty-eight acres of land, situated in Holmes county, in this state, and tbe other fifth of said land be gave and devised to tbe children of bis daughter, Josephine Harrington ; and tbat James W. Harrington, David Harrington and George Harrington, are tbe children of tbe said Josephine, by Ivy P. Harrington, her husband; tbat tbe said Mary Jane and Georgiana were infants under tbe age of twenty-one years, and tbat Jefferson L. Wofford was appointed their guardian by tbe probate court of said county of Holmes ; and, as such guardian, be filed bis petition in said probate court, alleging tbat said land is so situated tbat an equal division thereof cannot conveniently be made among said devisees, and prays for an order to sell bis ward’s shares or interest in tbe land, or tbe whole of said land, for tbe purpose of a division of tbe proceeds of tbe sale thereof among tbe devisees as tbe will directs. Whereupon, a citation was issued on tbe 24th day of August, 1859, returnable at tbe ensuing October term of tbe court, commanding tbe sheriff to cite Ivy F. Harrington, Josephine L. Harrington, James W. Harrington, David Harrington, George Harrington and Octavia Wofford, to [40]*40appear at said term of the court, to show cause, if any they can, why the prayer of the petition should not be granted. To this process the sheriff made the following return: “ Executed September 13, 1859 John Minter and Ann E. Minter, residents of the state of Alabama, were duly notified by publication of the application for a decree to sell the land devised as aforesaid.
At the October term, 1859, of said probate court, it appearing that James W. Harrington, David Harrington and Greorge Harrington were minors under the age of twenty-one years, and had no guardian, the court appointed James M. Stigler their guardian ad litem, who thereupon filed their answer to the petition. And the said Jefferson L. Wofford having given bond to secure the appropriation of the proceeds of the sale to the persons entitled thereto, the court made a decree for the sale of said land. And, in pursuance of said decree, the land was sold by the said guardian, Wofford, who reported the sale to said court at the December term thereof, 1859, which was approved and confirmed by the said probate court on the 22d day of December, 1859.
From this decree, James W. Harrington, David Harrington and Greorge Harrington prosecute this writ of error, and make the following assignments of error :
1. The return “executed” was not a sufficient return.
2. No bond was executed by Wofford, the guardian, securing the proceeds arising from the sale of the land to all the devisees in the will.
3. The court ordered all the land left by James Torrey to be sold and the proceeds divided among the devisees, but required no security given for the payment of the portions of the devisees.
4. There was no allegation in the petition of the guardian for the sale of the land, as to whether the minors had any near relations in this state, and none as such were cited.
5. The parents of J. W., David and Greorge Harrington, [41]*41as such were not served with process on account of their children.
6. There is no evidence that commissioners were appointed to see if the land could he divided.
7. The probate court had no jurisdiction to decree a sale of the land, because the land was not susceptible of division, that power belonged entirely to the chancery court.
The first and last assignments of error, going to the jurisdiction of the court, seem, very properly, to be regarded by counsel for the appellants, as presenting the main questions in the cause for our consideration and determination.
It is insisted that the decree of the court below, ordering a sale of real estate, is not only erroneous, but void, for the want of sufficient return of the service of process upon the defendants. We do not think so; there is a very clear and obvious distinction between a total want of service of process and a defective service of process as to their effect in judicial proceedings. In the one case, the defendant has no notice at all of the suit or proceeding against him. The judgment or decree in such case, it is conceded, is coram nonjudiee and void, upon the principles of law and justice. In the other case, the defective service of process gives the defendant actual notice of the suit or proceeding against him, and the judgment or decree in such case, although erroneous, would be valid until reversed by a direct proceeding in an appellate jurisdiction, and its validity cannot be collaterally called in question. And this view of the law is believed to be sustained by reason, principle and authority. The case of Smilk v. Bradley, 6 Smedes & Marsh. 492, decides that a defective return of process presents the question of error or no error.
In the case of Campbell v. Hays, 41 Miss. 562, the purchaser of property at the administrator’s sale, when sued upon his promissory note given for the "property thus bought, defended on the ground that the decree of the pro ■ bate court, authorizing the sale of the property, was void, being made without proper service of process on the dis-[42]*42tributees, and without service of process on the fathers of two of said distributees who were minors, having no guardians. The court, in a well-considered opinion delivered by Judge Ellett, say : “ We think it proper to say that we have not held that judgments and decrees are absolutely void, and may be collaterally impeached, merely on the ground that the return of the service of process is not made in the formal manner prescribed by the statute. On the contrary, we are of opinion that where a judgment by default is taken upon a return which purports to show that the process has been actually executed, such judgment is valid and binding whenever it comes collaterally in question, although the defendant might reverse it upon writ of error, on the ground of the insufficiency of the return.” It was held, that the decree of sale in that case, made by the probate court, founded on a defective return of process, was not void, and until reversed by a direct proceeding in an appellate tribunal, it must be regarded as a valid order of sale. In the case under consideration, the return on the process is defective, according to the repeated adjudications of this court, and for that reason the decree is erroneous.
We think the second and third assignments of error are not well taken. The record shows that the guardian gave a bond which was approved by the court, which we think was sufficient to secure the proper application of the proceeds of the sale, and the court refer, in the order of sale, to the fact of the guardian having filed his bond with the approval of the court for the purpose of securing a division of the proceeds of the sale among the devisees.
The fourth, fifth and six assignments will be considered together. It is not deemed necessary, in an application for an order to sell the interest of minors in real estate, to state whether the minors have any near relations in this state. Nor is it necessary that the parents of minors should be stated to be such, either in the process or the return thereof; when served with process on account of their children, they are presumed to know each other without any special [43]*43designation. Tbe object of the statute, in requiring service of process on the father or mother of an infant defendant without a guardian, is to procure the presence of the parent for the purpose of guarding and protecting the interests of the child. In the case under consideration,- Ivy F. Harrington and Josephine L. Harrington, his wife, were not devisees nor was either of them, nor had they, or either of them, any interest in the laud sought to be sold ; they could not be affected in any way by the decree, and their connection in this proceeding can only be accounted for upon the idea that Wofford, the guardian, thought it necessary, in compliance with the statute, to have process served on them on account of the infancy of their children, James W. Harrington, David Harrington and George Harrington, who were devisees under the will. These children were minors without a guardian, and in-serving process on them as infant defendants, the statute requires that process be served on their father or mother also. Rev. Code, 489, art. 64. And under this provision of the statute, in order to make assurance doubly sure, process was served upon both the parents at the same time it was served upon their infant children. The law does not require that commissioners should be appointed to ascertain if the land could be divided. This is a matter to be determined by the court upon evidence on the hearing of the cause.
This brings us to the consideration of the seventh and last assignment, which impeaches the validity of the decree ol sale, on the ground of the want of jurisdiction in the court of the subject-matter of the decree. This is a proceeding under art. 1.58 of the Rev. Code, 464, which provides that, when lands, tenements or hereditaments, shall descend to, or be devised to, heirs or devisees jointly, one or more of whom are minors, and an equal division thereof cannot conveniently be made, the guardian of such minor may petition the probate court of the county in which the letters were granted, for an order to sell his ward’s share or interest in the land, and the court, after summoning the co-heirs or co-devisees, may proceed to hear such application; and, if it should [44]*44deem it proper, may make a decree of sale of the ward’s interest as in other applications for the sale of real estate by guardians, and the sale and report thereof shall be made in like manner, and subject to all the provisions of other sales made by guardians ; or the court may order the whole of such real estate to be sold, and the proceeds to be divided among and secured to the persons entitled thereto. It is objected that so much of this provision, as authorizes the court to make an order to sell the whole tract, is unconstitutional and void so far as it authorizes a sale of the inter■ests of the adults in the land; this objection, we think, is not sustainable. The power of the probate court to order a sale of real estate is not derived from the constitution, but from the statute. It is the exercise of a power conferred by legislative act, like that given to the probate court to decree the sale of lands of devisees and heirs by the executors and administrators, for the payment of the debts of the decedent. The probate court, as to the jurisdiction conferred by the constitution, is a court of original jurisdiction ; and the terms, “all matters testamentary and of administration,” as used in the constitution, embrace only matters which concern that species of property which is the subject of administration by executors and administrators, and which vested in the personal representative. The real estate does not vest in the personal representative, and is not, therefore, the subject of administration at common law, but descends upon the heirs of the deceased, or goes to the devisee; and, hence, it has been held that the power to deal with it is conferred by statute, and not by the constitution. On the death of the ancestor, the title to his real estate vests in his heir or devisees, and can only be divested by their own voluntary deed or act, or by the judgment or decree of a court of competent jurisdiction. The probate court has no jurisdiction over land for any purpose whatever, by the constitution. It is only by virtue of the special conditional power conferred by the legislature on the happening of the event named in the statute, that the probate court [45]*45can assume jurisdiction over the land which has vested in the heir or devisee. Campbell v. Brown, 6 How. 234; Root v. McFerrin, 37 Miss. 46; Hanks v. Neal, 44 ib. 212, and Hollman v. Bennett, ib. 322.
If this be a correct view of the question under consideration, as to the power of the probate court to order the sale, it follows that the provision of the statute under which these proceedings were had, is not liable to the objection raised to it, and was enacted in the legitimate exercise of legislative power. This court has decided in the case of Hanks v. Neal, that this statute is not unconstitutional. That the probate court derives its power in cases like this, not from the constitution, but from legislative grant, giving it a special and limited jurisdiction over realty. On account of the defect in the return of process, the decree is erroneous, and for that reason alone must be reversed.
The decree is reversed and the cause remanded.