STONE, J.
These cases present the same questions. According to the averments of the bills, Mrs. Martha A. McCalley, a married woman, made her will, and devised certain lands to complainants, her children. She died, and William J. McCalley, her husband, became her administrator. Under an order of the Probate Court, the said William J., as administrator, executed notes, expressing that they were given under section 2432 [2066] of the Code of 1876, “to -extend a debt due from the estate of Martha A. McCalley, .deceased.” These notes were put in judgment against McCalley, as such administrator. The bills charge that, under executions issued on said judgments, the sheriff had levied on lands of complainants, which had come to them under the will of their mother, and would sell the same, unless restrained by injunction. ' The bills then aver, that the said devisees, complainants, had no “ notice of any application for said order by the said William J. McCalley, as such administrator; that they were not parties to such proceeding, either directly or indirectly; and that they had no knowledge of the execution of said notes, until after said judgments were severally rendered, said executions levied, [443]*443and said property advertised for sale.” Injunctions, restraining the sales, were granted on each of these bills; and the chancellor overruled a demurrer to them, and retained the injunctions. This decretal order is assigned as error in this court.
Section 2432 of the Code enacts, that “ any executor or administrator, by authority of the Probate Court, given on his application, may, in his representative capacity, give his note, bond, or bill, for the purpose of extending or settling a debt of the decedent, or settling a debt contracted by such' representative, for articles or for work and labor for the estate; and for such note, bond, or bill, the estate is liable, and the .executor or administrator is not personally liable.” It will be observed that the debts which the executor or administrator may settle under this section, are of two classes ; first, a debt of the decedent; and second, a debt contracted by such representative for articles, or for work and labor for the estate. On no other consideration can such representative give a note, bond, or bill, and thereby fasten a liability .on the estate. One effect of the giving of such note, bill, or bond is, that the personal representative, although the contracting party, fixes thereby no personal liability on himself. Yet the order, under which he obtains authority to bind, not himself, but the property of another, is obtained on his application. The effect of such order, when rightly obtained and acted on, is to bind the property of the testator, or intestate, against the claims of distributees, legatees, heirs, or devisees, if the statute be carried out according to its letter: a contract by, and judgment against one person, and a liability thereby fastened on the property of another, for its payment. Can this be done, without notice, and an opportunity to defend, given to those in whom the title of the property is vested?
The question, it seems to us, suggests its own answer. No person can “ be deprived of his . . property, but by due course of law.” — Declaration of Eights, § 7. The rights of use, enjoyment, and disposal are inherent in the ownership of property; and it is these rights the constitution guarantees. This provision of the constitution protects the rights-of property, against legislative confiscation, and secures to every one a'trial by judicial proceeding, before he can be devested of his title. — Dorman v. The State, 34 Ala. 216; Sadler v. Langham, Ib. 311; Zeigler v. S. & N. Ala. R. R. Co. 58 Ala. 594, and authorities cited. In the case last cited, we said : “ Due process of law implies the right of the person affected .thereby to be present before the tribunal which pronounces judgment upon the question of his life, liberty, [444]*444or property, in its most comprehensive sense; to be heard, by testimony or otherwise, and to have the right of controverting, by proof, every material fact which bears on the question of right in the matter involved.”
If section 2432 of the Code must be construed as conferring the power on the Probate Court to grant the order therein provided for, on the mere ex-parte application of' the personal representative, without notice to the heirs, devisees, distributees, or legatees, as the case may be, and without an opportunity for judicial contestation; and if, under it, a note, bill, or bond, may be executed by such personal representative, and the estate, real or personal, of the decedent, become bound thereby, — such construction would force us to declare it unconstitutional. Such ex-parte order would not only not be “ due course of law,” but might, and probably would, be made the instrument of most alarming frauds. It is our duty, when we can, to so construe acts of the legislature, as to bring them within the range of constitutional power, and not to suppose that a co-ordinate department of the government has violated the fundamental law of the land.
The statute we are construing, is very brief in its expressions, if not meagre in its provisions. It makes no special mention of the facts necessary to be averred in the application, nor of the form it shall assume. It does not inform us who, if any, are to be made parties; who, or how to be notified; nor does it provide any machinery, other than the application, by which, the judicial function is to be brought into exercise. Of course, the conditions on which the statutory power depends must be averred — namely, that the petitioner is the personal representative; that decedent left an estate, and died owing a debt, describing it, which it is the object of the petition to obtain authority to extend or settle; or, as the case may be, that the debt, describing it, was contracted by the personal representative, for articles, or for work and labor for the estate, and showing, a sufficient reason why such debt was contracted by the personal representative ; and that the debt, so contracted, was necessary, and a reasonable charge. The substance of the foregoing should be averred in the application; because each of the propositions is material, and upon each an issue of fact may be formed. An application- to the Probate Court, under the statute we are considering, would be defective, and insufficient, if it did not contain the substance of all the above averments, and'also disclose the names, and residences if known, of the heirs, devisees, distributees, or legatees, dependent on the inquiry, whether the decedent left a will, [445]*445and -whether the property sought to be charged was real or personal estate. And notice should be given to such heirs, devisees, distributees, or legatees, thereby giving them an opportunity to controvert the averments of the petition. The Probate Court should, in no case, grant such order, until every material fact specified above is established by proof. — Brown v. Wheeler, 3 Ala. 287; McCurry v. Hooper, 12 Ala. 823.
"What is the effect of such order, when obtained, and what intendments are to be indulged in relation to such proceedings, when they come up collaterally ? We do not doubt that, when an application is filed, containing the averments stated above as necessary, the Probate Court acquires jurisdiction to make the order. The rules which govern in such' cases, must be assimilated to those which obtain in proceedings in the same court, for an order to sell property to pay debts, or for distribution.
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STONE, J.
These cases present the same questions. According to the averments of the bills, Mrs. Martha A. McCalley, a married woman, made her will, and devised certain lands to complainants, her children. She died, and William J. McCalley, her husband, became her administrator. Under an order of the Probate Court, the said William J., as administrator, executed notes, expressing that they were given under section 2432 [2066] of the Code of 1876, “to -extend a debt due from the estate of Martha A. McCalley, .deceased.” These notes were put in judgment against McCalley, as such administrator. The bills charge that, under executions issued on said judgments, the sheriff had levied on lands of complainants, which had come to them under the will of their mother, and would sell the same, unless restrained by injunction. ' The bills then aver, that the said devisees, complainants, had no “ notice of any application for said order by the said William J. McCalley, as such administrator; that they were not parties to such proceeding, either directly or indirectly; and that they had no knowledge of the execution of said notes, until after said judgments were severally rendered, said executions levied, [443]*443and said property advertised for sale.” Injunctions, restraining the sales, were granted on each of these bills; and the chancellor overruled a demurrer to them, and retained the injunctions. This decretal order is assigned as error in this court.
Section 2432 of the Code enacts, that “ any executor or administrator, by authority of the Probate Court, given on his application, may, in his representative capacity, give his note, bond, or bill, for the purpose of extending or settling a debt of the decedent, or settling a debt contracted by such' representative, for articles or for work and labor for the estate; and for such note, bond, or bill, the estate is liable, and the .executor or administrator is not personally liable.” It will be observed that the debts which the executor or administrator may settle under this section, are of two classes ; first, a debt of the decedent; and second, a debt contracted by such representative for articles, or for work and labor for the estate. On no other consideration can such representative give a note, bond, or bill, and thereby fasten a liability .on the estate. One effect of the giving of such note, bill, or bond is, that the personal representative, although the contracting party, fixes thereby no personal liability on himself. Yet the order, under which he obtains authority to bind, not himself, but the property of another, is obtained on his application. The effect of such order, when rightly obtained and acted on, is to bind the property of the testator, or intestate, against the claims of distributees, legatees, heirs, or devisees, if the statute be carried out according to its letter: a contract by, and judgment against one person, and a liability thereby fastened on the property of another, for its payment. Can this be done, without notice, and an opportunity to defend, given to those in whom the title of the property is vested?
The question, it seems to us, suggests its own answer. No person can “ be deprived of his . . property, but by due course of law.” — Declaration of Eights, § 7. The rights of use, enjoyment, and disposal are inherent in the ownership of property; and it is these rights the constitution guarantees. This provision of the constitution protects the rights-of property, against legislative confiscation, and secures to every one a'trial by judicial proceeding, before he can be devested of his title. — Dorman v. The State, 34 Ala. 216; Sadler v. Langham, Ib. 311; Zeigler v. S. & N. Ala. R. R. Co. 58 Ala. 594, and authorities cited. In the case last cited, we said : “ Due process of law implies the right of the person affected .thereby to be present before the tribunal which pronounces judgment upon the question of his life, liberty, [444]*444or property, in its most comprehensive sense; to be heard, by testimony or otherwise, and to have the right of controverting, by proof, every material fact which bears on the question of right in the matter involved.”
If section 2432 of the Code must be construed as conferring the power on the Probate Court to grant the order therein provided for, on the mere ex-parte application of' the personal representative, without notice to the heirs, devisees, distributees, or legatees, as the case may be, and without an opportunity for judicial contestation; and if, under it, a note, bill, or bond, may be executed by such personal representative, and the estate, real or personal, of the decedent, become bound thereby, — such construction would force us to declare it unconstitutional. Such ex-parte order would not only not be “ due course of law,” but might, and probably would, be made the instrument of most alarming frauds. It is our duty, when we can, to so construe acts of the legislature, as to bring them within the range of constitutional power, and not to suppose that a co-ordinate department of the government has violated the fundamental law of the land.
The statute we are construing, is very brief in its expressions, if not meagre in its provisions. It makes no special mention of the facts necessary to be averred in the application, nor of the form it shall assume. It does not inform us who, if any, are to be made parties; who, or how to be notified; nor does it provide any machinery, other than the application, by which, the judicial function is to be brought into exercise. Of course, the conditions on which the statutory power depends must be averred — namely, that the petitioner is the personal representative; that decedent left an estate, and died owing a debt, describing it, which it is the object of the petition to obtain authority to extend or settle; or, as the case may be, that the debt, describing it, was contracted by the personal representative, for articles, or for work and labor for the estate, and showing, a sufficient reason why such debt was contracted by the personal representative ; and that the debt, so contracted, was necessary, and a reasonable charge. The substance of the foregoing should be averred in the application; because each of the propositions is material, and upon each an issue of fact may be formed. An application- to the Probate Court, under the statute we are considering, would be defective, and insufficient, if it did not contain the substance of all the above averments, and'also disclose the names, and residences if known, of the heirs, devisees, distributees, or legatees, dependent on the inquiry, whether the decedent left a will, [445]*445and -whether the property sought to be charged was real or personal estate. And notice should be given to such heirs, devisees, distributees, or legatees, thereby giving them an opportunity to controvert the averments of the petition. The Probate Court should, in no case, grant such order, until every material fact specified above is established by proof. — Brown v. Wheeler, 3 Ala. 287; McCurry v. Hooper, 12 Ala. 823.
"What is the effect of such order, when obtained, and what intendments are to be indulged in relation to such proceedings, when they come up collaterally ? We do not doubt that, when an application is filed, containing the averments stated above as necessary, the Probate Court acquires jurisdiction to make the order. The rules which govern in such' cases, must be assimilated to those which obtain in proceedings in the same court, for an order to sell property to pay debts, or for distribution. If the order be granted on a petition, such as that specified, then a sale made under a judgment rendered on a note, bill, or bond given under such order, will pass the title. If the application or petition be wanting in any of the material averments of fact, necessary to give the court jurisdiction, tested by the rules which prevail when the legality of an order of sale granted by the Probate Court is presented collaterally, then an order made on such petition is coram non judice; and a sale, made under a judgment rendered on a note, bill, or bond thus executed, would be void, and neither pass the title, nor create a cloud upon it. — 1 Brick. Dig. 939, §§ 353, 355; Bishop v. Hampton, 15 Ala. 761; Jones v. Jones, 42 Ala. 218; 1 Brick. Dig. 940, §§ 364, 365; Hoard v. Hoard, 41 Ala. 590; Pettus v. McLannahan, 52 Ala. 55; Bland v. Bowie, 53 Ala. 152; Arnett v. Bailey, 60 Ala. 435; Rea v. Longstreet, 54 Ala. 291; Lockett v. Hurt, 57 Ala. 198. If, however, the application or petition contains the necessary averments to give the court jurisdiction, and the court commits error afterwards — such as, a failure to notify the parties in adverse interest — this would not avail, on collateral presentation, to avoid the order, the judgment, or the title acquired at a sale under it. — Field v. Goldsby, 28 Ala. 218, and authorities cited.
The extract from the bills in these cases, given above, contains all that is said about the application to the Probate Court for authority to execute the notes, brought to view in these suits. It does not state what the application contained ; nor can we learn therefrom that it contained the necessary averments to give the Probate Court jurisdiction. If it did not, then the proceeding was coram, non judice and void, and the Chancery Court would not entertain the bills. A [446]*446title, acquired under such sale, would fall of its own weight; and, hence, it could not operate a cloud on tbe title of the devisees. — Lockett v. Hurt, supra. The present bills are defective, in that they do not show what the application contained. On the other hand, if the petition was sufficient,- and the devisees had notice of its filing, and the Probate Court proceeded thereon to make the proper order, under which the notes were executed ; then, in the absence of fraud in the procurement of the order, or something equivalent to it, the complainants are entitled to no relief, and their bills are without equity.
There is a remaining phase of these cases. The liability of Mrs. McCalley’s estate, if there be a liability, rests on the term of the statute, of which a copy is given above. Under that statute, as we have shown, the personal representative of an estate may obtain from the Probate Court authority to make a contract, for the performance of which the estate of his testator, or intestate, is liable. This is a new power conferred on representatives of estates; a power, given by law, to one person, to bind, by his personal contract, the property of another. It is not for us to question the policy of this statute. Our duty is to expound and obey it.
In ordinary cases of sheriff’s sales, or offers to sell real estate under final process, the execution is against the person whose land is sold, or sought to be sold. Hence, in an action brought to recover lands purchased at a sheriff’s sale so made, the-plaintiff need only show the. judgm'ent of the court, execution issued thereon, and the sheriff’s sale and conveyance under’ the execution. This makes out his title; and errors committed before judgment, for which it would have been reversed on appeal, will not impair his title in the least. Even a failure of the record to affirm that the defendant had been served with writ or summons, will avail nothing in defense of the ejectment, if the court rendering the judgment had jurisdiction of the subject-matter. — 1 Brick. Dig. 632, §§ 117, 118; Budger v. Lyon, 7 Ala. 564. If a sheriff were about to sell lands under an execution, issued on a judgment rendered in a suit of which the defendant had bad no notice, it would become necessary for such defendant to move in the premises, before the sheriff perfected his sale and conveyance. If, in fact, the judgment had been rendered without notice to the defendant, and there was a valid defense to the action on the merits, chancery would intervene, re-try the question on the merits, and perpetually enjoin the judgment, if the defendant proved his defense, and the other allegations of his bill. — 1 Brick. Dig. 670, §§435, 436; lb. 668, §§ 409, 410.
[447]*447In analogy to this principle, we hold that, if the application to the Probate Court contained sufficient averments to give the court jurisdiction, and if the complainants (devisees) were in fact not notified; then, if the averments of their bills be true, the debts for which the renewed notes were given, were not the proper debts of Mrs. MoCalley, and chancery will give relief, and perpetually enjoin the enforcement of the executions against the property of her estate. If the bills were so amended as to present this shape, they would contain equity.
There are apparent errors in the records we have not pointed out. The bills allege Mrs. McCalley’s separate estate was statutory. The record tends to show it was equitable. This is a very material inquiry in these causes. The manner of charging the two estates is essentially different. The statutory estate is not charged by the contract of the married woman. She can make no contract, such as this. True, her estate may be charged, “ for articles of comfort and support,” under section 2711 of the Code of 1876. This, however, does not rest on the theory, that the wife has made the purchase. The husband may fasten this charge as well as the wife. It is a mere legal liability of the wife’s estate, which the statute itself raises. The equitable estate is controlled by entirely different principles-. It can be charged -only by the act and agreement of the wife, and, unless there are restraining words in the instrument which creates it, she can charge it to the same extent as one sui juris could. — 2 Brick. Big. 86, §§ 211, 212, 213; Cowles v. Morgan, 34 Ala. 535; Short v. Battle,, 52 Ala. 456. There would seem, also, to be a defect in the testimony, even if the averments of the bills were sufficient. The final decrees are also assigned as error, and this assignment must also be sustained.
The demurrers to the bills were overrruled in the court below, and the bills pronounced sufficient. If they had been sustained, complainants, on their motion, would" have been allowed to amend. We can not entertain a motion of that kind, and can not know whether an amendment can be made, which will impart equity to the bills under the principles of this opinion. Unless the bills are amended, so as to show that the application to the Probate Court contained the necessary averments to give that court jurisdiction, they will be wanting in equity, and the injunctions should be dissolved, and the bills dismissed. We reverse and remand the causes, in order that the chancellor may consider any application that may be made to amend the bills, and make all orders that may be necessary according to the principles of this opinion.
Keversed and remanded.