the mode of proof; nor that the will shall be proved, as well as attested, by a specified number of witnesses. If such proof were to be required from each subscribing witness, the validity of wills would be made to depend upon the memory and good faith of a witness, and not upon reasonable proof that all the requirements of the statute had in fact been complied with. The court is therefore of opinion, that there was no error in the refusal to give the instructions to the jury asked for by the appellants upon the trial of the issue.

Decree affirmed.

EXECUTION AND ATTESTATION OF WILL: See Rosser v. Franklin, ante, 97, and note; Nelson v. McGiffert, 49 Am. Dec. 170, note 174; Jauncey v. Thorne, 45 Id. 424, note 442, where other cases are collected. And for the Pennsylvania doctrine on the subject, see Grabill v. Barr, 47 Id. 418, note

422.

THE PRINCIPAL CASE IS CITED in support of the statement that the furthest the supreme court of Virginia has gone is to declare that the decision of the trying court for or against a will is to conclude all mere questions of fact de pending upon the credit to be given to witnesses, in the following cases: Young v. Burner, 27 Gratt. 105; Lambert v. Cooper, 29 Id. 68; Cheatham v. Hatcher, 30 Id. 60; it is also cited in the last-named case at page 61, to the point that the law does not prescribe the mode of the proof of a will.

EVANS AND WIFE v. SPURGIN.
[6 GRATTAN, 107.]

WHERE COMMISSIONERS APPOINTED BY COURT OF CHANCERY TO MAKE SALE
of lands execute a deed to the purchaser, although they were not di
rected to make a conveyance by the decree appointing them, and such
deed is afterwards, by a final decree of the court, approved and con-
firmed, the order of confirmation gives full effect and validity to the
deed, and will relate back to the time of its date, so as to invest the
grantee therein named with the legal title to the land.
VALIDITY OF DECREE RENDERED AGAINST DEFENDANT AFTER HIS DEATH,

where no suggestion of such death is made in the record, can not be impeached in a collateral action by evidence tending to show that the defendant died before the decree was pronounced. The error in making the decree after the defendant's death must be shown in some proceeding instituted by the proper parties, for the purpose of setting it aside for that cause.

CONTINUED POSSESSION OF OWNER OF LAND BETWEEN DATE OF ITS SALE, by commissioners appointed by the court to sell it, and the making of the final decree confirming the conveyance, is not adverse to the grantee in such conveyance, for, until the sale is confirmed, such owner holds, under the control of the court, by virtue of his own title. CONVEYANCE OF LAND PREVIOUSLY CONVEYED BY SAME GRANTOR is inop erative.

WRIT of right. Both parties claimed under John Staley. The tenant offered in evidence two deeds from Staley to Daniel Lantz, one dated July 8, 1805, the other dated August 15, 1809. Also a deed from the widow and daughter of Lantz to himself, dated July 15, 1839. And he proved that Lantz had been in possession from 1805 until his death, which happened about 1825; and that his heirs held possession from that time until the conveyance to him in 1839. The demandants, who claimed under the will of Nimrod Evans, traced the title to Daniel Lantz. They then offered in evidence the record of a suit in chancery, in which Staley was plaintiff and Daniel Lantz was defendant. The suit was commenced in 1805, in the late chancery court at Staunton. The cause came on to be heard on the twentieth day of July, 1807, when the interlocutory decree referred to in the opinion was made. The other facts appear from the opinion.

Nathaniel Harrison, for the appellants.

Guy R. C. Allen, for the appellee.

By Court, ALLEN, J. The court is of opinion, that although the interlocutory decree of the Staunton chancery district court, pronounced on the twentieth day of July, 1807, in the suit of John Staley against Daniel Lantz, did not direct the commissioners thereby appointed, to make sale of the land in controversy, to convey the same to the purchaser; yet as commissioners appointed by the chancery court to make sale of property, act subject to the supervision and control of the court, their acts, when sanctioned and approved by the court, become the acts of the court: that the court having jurisdiction over the subject, has the power either to ratify and confirm a previous deed made by the commissioners, or to direct the execution of a new one; and the correctness of any order so made by the court, where it has jurisdiction over the subject, can only be inquired into by proper proceedings instituted to set aside or reverse the order and decree; but the same can not be impeached in a collateral proceeding. The court is therefore of opinion, that the deed executed by Dudley Evans and Thomas Wilson, two of the commissioners appointed by said decree, to make sale of the said land, bearing date the second day of November, 1807, having been approved and confirmed on the twenty-first of April, 1836, by a final decree pronounced in said cause by the circuit superior court of law and chancery of Monogalia county, to which court said cause had been transferred, such order of con

firmation gave full effect and validity to said deed, and related back to the time of its date, so as to invest Nimrod Evans, the grantee in said deed, with the legal title of said Daniel Lantz to said land. And the court is further of opinion, that as there was no suggestion of the death of Daniel Lantz in the record of said suit in chancery, the validity of the decree can not be impeached by evidence given in a collateral proceeding, tending to show his death at a period anterior to the time of pronouncing the final decree; the error in proceeding to pronounce such decree after the death of the defendant, should have shown in some proceeding instituted by the proper parties to impeach and set aside said decree for that cause.

The court is further of opinion, that the continued possession of the said Daniel Lantz and his heirs from the time of the sale by the commissioners, until the final decree of the court, was not an adverse possession to the demandants or the said Nimrod Evans, under whom they claim, because the decree of the court confirming said deed was essential to the validity thereof, and because, until such final order, the said Daniel Lantz and those claiming under him, held subject to the control of the court, under and in virtue of said title, and not adverse thereto.

And the court is further of opinion, that as John Staley, by his deed of the eighth of July, 1805, had conveyed the land in controversy to said Daniel Lantz, the subsequent deed of said Staley to the said Lantz, dated the fifteenth of August, 1809, conveying a large tract of land, embracing within the boundaries thereof the land in controversy, so far as it respected the land in controversy, was inoperative; the title of said Staley thereto having fully passed by the previous deed. It therefore seems to the court here, that the matters shown in evidence to the jury, are sufficient in law to maintain the issue on the part of the demandants, and that the judgment of the circuit superior court is erroneous. It is therefore reversed with costs; and this court proceeding, etc., it is considered that the demandant recover his seisin of the tract of five hundred and thirty-nine acres, as described in the count, being the same land described in the deed of John Staley to Daniel Lantz, dated the eighth of July, 1805, and in the deed of Dudley Evans and Thomas Wilson, commissioners, to Nimrod Evans, dated the second of November, 1807, and the costs.

CABELL, P., and BROOKE, J., absent.

VALIDITY OF JUDGMENT RENDERED AGAINST DECEDENT.-At the common law, the death of any party to an action before final judgment abated the

action: 2 Tidd's Pr. 932, 1116; Weston v. James, 1 Salk. 42; Hildreth v.
Thompson, 16 Mass. 191; Webber v. Stanton, 1 Mich. N. P. 97; Blais
dell v. Harris, 52 N. H. 191; Holmes v. Ilonie, 8 How. Pr. 383. This
technical rule was often found, when rigorously applied, to work great in-
"For the
justice, and accordingly we find that it was at an early day modified to some
extent by the legislature. By the satute 17 Car. II., c. 8, sec. 1,
avoiding of unnecessary suits and delays," it was enacted, "that in all actions
personal, real, or mixt, the death of either party between the verdict and the
judgment shall not hereafter be alleged for error, so as such judgment be
entered within two terms after such verdict." This provision was continued
in force by the common law procedure act of 1852: 16 and 17 Vict., c. 76,
sec. 139; and as it was decided in Ireland v. Champneys, 4 Taunt. 884, that
the statute of Charles II. applied only to verdicts, and not to interlocutory
judgments, to supply the omission, section 140 of the act of Victoria above
named provided, that "if the plaintiff in any action happen to die after an in.
terlocutory judgment, and before a final judgment obtained therein, the said
action shall not abate by reason thereof, if such action might be originally
prosecuted or maintained by the executor or administrator of such plaintiff;
and if the defendant die after such interlocutory judgment, and before final
judgment therein obtained, the said action shall not abate if such action
might be originally prosecuted or maintained against the executor or admin-
istrator of such defendant." But the courts also, independent of the statu-
tory enactments, sought to relieve parties from the injustice that followed
the application of the old common-law rule. This they did by resorting to
the fiction of making all judgments bear date of the first day of the term:
2 Tidd's Pr. 932; Anonymous, 1 Salk. 8; Ilodges v. Templer, 6 Mod. 191;
Bragner v. Langmead, 7 T. R. 20; Jacobs v. Miniconi, 7 Id. 31; Morris v.
Corson, 7 Cow. 281; Broas v. Mersereau, 18 Wend. 653; 1 Burrill's Pr. 282;
Farley v. Lea, 32 Am. Dec. 680, and note CS2. By a like fiction all judicial
proceedings are considered as taking place at the earliest period of the day on
which they are done, and therefore where a judgment was signed at the
opening of the office at 11 A. M., and the defendant had died at 9:30 A. M.,
the same morning, the judgment was held to be regular: Wright v. Mills, 4
Hurl. & N. 488; Edwards v. Reginam, 9 Exch. 628.

But even in cases where the entry of the judgment was delayed until after the term, the courts became accustomed, in order to prevent the suit from abating by the death of a party, to allow the judgment to be entered nunc pro tunc, as of a date when the deceased party was living, if the party recov ering was then entitled to judgment. The application to have the judgment so entered rested in the discretion of the court. But in all cases where the delay in entering up the judgment was due to some act of the court, the party was permitted to enter it up retrospectively to meet the justice of the case: Toulmin v. Anderson, 1 Taunt. 385; Bridges v. Smyth, 8 Bing. 29; Blewett v. Tregonning, 4 Ad. & El. 1002; Evans v. Rees, 12 Id. 167; Green v. Cobden, 4 Scott, 486; Key v. Goodwin, 1 Moo. & S. C20; Pool v. Loomis, 5 Ark. 110; C'oilins v. Prentice, 15 Conn. 423; Ryghtmyre v. Durham, 12 Wend. 245; Spalding v. Congdon, 18 Id. 543; Goddard v. Bolster, 6 Me. 427; S. C., 20 Am. Dec. 320; Holmes v. Ionie, 8 How. Pr. 3S3; Ehle v. Moyer, Id. 244; De Agreda v. Mantel, 1 Abb. Pr. 130; Blaisdell v. Harris, 52 N. II. 191; Fowler v. Lur lett, 20 Tex. 34; Beard v. Hall, 79 N. C. 506; Den v. Tomlin, 35 Am. Dec. 525, note 526. In Bridges v. Smyth, 8 Bing. 29, the delay had been occasioned by a motion touching an award. In Blewett v. Tregonning, 4 Ad. & El. 1002, the delay was caused by the pendency of a motion for a new trial. In Bridges v. Smyth, 8 Bing. 32, Tindal, C. J., delivering the opinion of the court, stated the rule

of the common law to be, "that where parties are hung up by act of law, neither of them loses his right, but eventually judgment is entered nunc pro tunc, as if the party were still alive." And Bronson, J., delivering the opinion of the court in Spalding v. Congdon, 18 Wend. 543, said: "But the statute has nothing to do with the matter. Here the party has been tied up by a bill of exceptions and a motion for a new trial, and died while the matter was sub judice. In such cases, whether after verdict or nonsuit-on demurrer or writ of error—and without regard to the lapse of time, the court will, upon common-law principles, allow the judgment to be entered up as of a term when the party was alive." Where, however, the delay has been due to the laches of the party interested in the judgment, the courts have sometimes denied the application to have the judgment entered nunc pro tunc, as of a time when the party was alive: Copley v. Day, 4 Taunt. 702; Lawrence v. Hodgson, 1 You. & Jer. 368; Freeman v. Tranah, 12 C. B. 406; Vaughan v. Wilson, 4 Bing. N. C. 116. In Freeman v. Tranah, supra, it was said that it is only in cases where the delay in signing the judgment has arisen from the act of the court that judgment can be entered nunc pro tunc, after two terms have elapsed since the judgment.

In Palmer v. Cohen, 2 Barn. & Adol. 966, it was decided that, under the statute 17 Car. II., c. 8, sec. 1, an executor might enter up judgment on a verdict obtained by his testator in an action for libel. And this decision was followed in Kramer v. Waymark, 4 Hurl. & C. 427, which was an action for personal injuries. But in Hemming v. Batchelor, L. R., 10 Exch. Cas. 54, the plaintiff brought a personal action for injuries received by him through the alleged negligence of the defendant. The plaintiff was nonsuited on the ground of want of evidence of the alleged negligence. The judge, being in some doubt as to the correctness of his decision, stayed execution to give the plaintiff an opportunity to move to set aside the nonsuit. During the vacation the plaintiff died, and at the next term the plaintiff's next friend moved to set aside the nonsuit. The defendant, on the other hand, moved to have judgment entered for him. The court denied both motions: the motion on the part of the plaintiff, because the action being personal abated by his death; and the motion of the defendant, on the ground that under the circumstances of the case it would be unjust to grant it.

WHETHER JUDGMENT RENDERED AGAINST DECEASED PERSON IS VOID OR MERELY VOIDABLE is a question which appears to have been seldom raised in the English courts. The only reported case we have been able to find in which this question has been passed upon directly is Randall's Case, 2 Mod. 308. In that case judgment was rendered against a defendant after his death, and the report says: "The court were of opinion that the plaintiff might avoid the judgment without a writ of error; especially in this case, where it is not only erroneous, but void." In this country the question has been directly passed upon by the supreme courts of many of the states. And the view now sustained by much the greater weight of authority is, that where the court has, in the life-time of the party, acquired jurisdiction of the subject-matter and of the person, a judgment rendered against him after his death is, though erroneous and therefore voidable, not void nor open to collateral attack: Powell v. Washington, 15 Ala. 803; Phelan v. Tyler, 12 Pac. C. L. J. 38; Collins v. Mitchell, 5 Fla. 364; Stortzell v. Fullerton, 44 Ill. 108; Case v. Ribelin, 1 J. J. Marsh. 30; Spalding v. Walthen, 7 Bush, 659; West v. Jordan, 62 Me. 484; Webber v. Stanton, 1 Mich. N. P. 97; Hayes v. Shaw, 20 Minn. 405; Coleman v. McAnulty, 16 Mo. 173; Jennings v. Simpson, 12 Neb. 558; Swasey v. Antram, 24 Ohio St. 87; Yaple v. Titus, 41 Pa. St.