delivered- the opinion of the court.

The main question is, whether the decree of the probate court rendered without notice, either actual or constructive, to the heirs of McCarrol, is void and inoperative. That it is so, we have no doubt. One of the special pleas alledges, that the deceased left heirs, who were living within the county where the court sat, and *114that they had no notice of the proceedings/ and were not made parties thereto. That no citation ever issued to them, nor was any served on them-. The demurrer confessed these facts. It surely cannot be'a matter of doubt, that the decree of the court is totally void. It is n'ot only against the express provisions of the statute, which requires notice of the proceeding to be'issued to all persons interested, but stands .opposed to the very first principles of justice. No man can be condemned to lose iiis life, liberty or property,, by a judgment or decree, who has had no notice of the proceedings against him, and consequently no opportunity to contest it, 10 Pet. Rep. 161; 1 Dev. Rep. 187.

It is a principle universally recognized, that no judgment or decree is binding, unless the court which pronounces it has jurisdiction, as well of the person as the subject matter, 15 J. Rep. 141; 19 do. 33; 11 Wendell 652. The court below should' therefore have overruled the demurrer to this plea; -and for the same reason should have admitted the record of the proceedings of the probate court to be read to the jury. This record shows the same facts relied on in the special plea. It was rejected by the court on the ground that though the action of the court was void, it was only so in regard to the heirs, and that it could not be attacked in a collateral shit. . This is undoubtedly the correct veiw of the subject, in cases where the judgment is irregular'merely, and therefore only voidable. But it is equally true, that a judgment by a court which has no jurisdiction is absolutely void, and may always be assailed. Hollingsworth vs. Barbour et al.; 4 Pet. 474; 11 Wend. 652. In the last case, the defendants in an action of ejectment claimed title to the land in dispute under a deed made in pursuance of an order for partition. There was no showing in the record that the requirements of the statute authorising proceedings in partition had been complied with. It is'then observed by the judge who delivered the opinion of the court “if a court act without jurisdiction, the proceeding is void, and if it appears upon the face of the record, the whole is a nullity. And this want of jurisdiction may always be set up against a judgment when sought to be enforced, or when, any benefit is claimed under it.”

In the case first noticed, it is said it must be shewn by the record that; the court'had jurisdiction of the party, either by service *115of process or by publication, where that is authorized. The case in 3 J. J. Marshall, 105, is to the same effect. The lands which belonged to Charles McCarroll in his lifetime, descended to his heirs upon his death. The title became vested in them, and can only be divested by the decree of the probate court upon proceedings instituted and conducted according to the statute of the state. The administrator as such had no interest in the lands, and can only take possession in the mode and for the purposes enumerated by the law. One case is given by the statute in which he may sell the real estate, and that is when the personal property is insufficient to discharge the debts of the deceased. Another is perhaps where it can be shewn that it will be for the interest of the heirs to convert it into money. But in any proceeding in the one case or the other, the heirs must have notice. This is required by the statute as well as by general principles of justice.

It is not shewn that the purchaser has any deed, or whether he is in possession, and hence it is unnecessary, to consider how far such facts, if proven, would bring this case within the general rule which obtains in the purchase of land, if the vendee has been let into possession, and is in possession at the time of seeking to rescind the contract, or resisting the payment of the purchase money. In this case, the sale conveyed no title to the vendee, and the consideration of the note has therefore wholly failed. In such circumstances, there can be no justice in subjecting him to the payment of the money, on the uncertain ground of his right of action to recover it back in a suit against the administrator. The vendors in this case were mere trustees, and sold the land only in obedience to an order of the probate court. They are not supposed to have any personal interest in the land, and therefore would not be liable for a defect of tille. / They represent the deceased. It is not contended that the deceased had not a good title; but it is insisted merely, that the title is by law in his heirs. The case in 2 Stewart’s Ala. Rep. 335, is directly in point, and fully sustains these views.

The judgment must be reversed, and a venire de novo awarded.