¶1On Petition for a Rehearing.
¶2The assumption upon which counsel’s argument on the petition for a rehearing rests is one that can not be maintained. It is not true, as assumed, that the issue tendered by the petition of an administrator to sell lands for the payment of debts owing by the decedent’s estate involves no question of title. If this assumption were correct, then there would be no reason for the petition to aver ownership in the decedent, or for making the heirs parties to answer as to their interests in the land. It is said, by counsel: “ The heir is challenged to meet the allegation of indebtedness. If he can defeat that allegation he will successfully defend his title; if not, the title of the deceased, and his title, as heir of the deceased debtor,will be of no consequence to him whatever.” The fallacy of this argument is apparent; it unduly assumes that the heir is only challenged to meet the allegation of indebtedness ; whereas he is challenged to meet that claim and also meet the claim that the land was owned by the deceased, and is subject to sale for the payment of his debts. One of the most important issues which the heir, or other party, is challenged to meet is the right of the administrator to sell the land. That such an issue should be met and settled is demanded by high considerations; it is demanded by the interests of society, which require the firm and speedy settlement of controversies; it is demanded for the security of purchasers at administrators’ sales; it is demanded for the benefit of heii’s and creditors who have an interest in securing *31confidence in judicial sales, and it is demanded in brder to-give stability to titles and inspire confidence in the judgments of. the courts.
¶3The petition in the case before us averred, in direct and explicit terms, that the decedent was the owner in fee of the real estate, and challenged the appellees to meet and contest that question. It was made an issue, and it was an issue that, it was indispensably necessary should be tried-. If, as theappellees now claim, they owned the land, then the administrator had no authority to sell it; but that was the controlling question in the proceedings instituted by the administrator, and is one of the questions settled by the judgment there pronounced. The administrator was bound to aver that his-intestate owned the land — he could not of course sell a third person’s land — but when he made this averment in due form, and brought the adverse claimants into court by due process-of law to meet that issue, and obtained a judgment deciding1 the issue in his favor, the question was settled.
¶4There is no question here as to the effect of an order of sale upon after-acquired rights, for such rights as the appellees have existed, if at all, at the time they were brought into court to answer the claim of the administrator that the land was owned in fee simple by his intestate. If they owned the-land, and the intestate did not, they should have averred that fact and have contested the question when offered the opportunity to do so.
¶5It is also said by counsel: “ If in this case the land was. subject to the debts of the deceased, the appellees are concluded by the proceedings; if it was not, they are not concluded.” This statement exposes the unsoundness of counsel’s former position, for the question whether the land was subject to the decedent’s debts depends upon whether she owned it; if the defendants to the petition owned it, of course it was not subject to her debts, and this was the issue presented by the petition. If presented the appellees were bound to. meet it, and, if decided against them, they could not after-*32wards assert a title existing when they were brought into court.
¶6The appellees were brought into court in the capacity of heirs of the decedent, and it was the land as her land that the administrator sought an order to sell. If they were not her heirs as to the land described, they should have litigated that question, and can not now assert that they were not her heirs, but had then and still have an interest of a different character in the land. If they were her heirs, and if she did own the land, it was subject to sale for the payment of her debts, and this is what the judgment conclusively adjudicates. If the heirs are in court, and if the issue is made as to their heir-ship, it is necessarily decided by the order directing the sale of the land, and that issue was made here, for it was alleged that Mrs. Niles owned the land, and that appellees were her heirs. The success of the appellees in this case depends entirely upon their overthrowing the judgment of the court that the decedent owned the land, for, in order to succeed, they must make it appear that some other person did, in'fact, own it, and this would require the complete and total overthrow of the judgment. This result would .lead to a violation of long settled principles.
¶7The conclusion reached in this case is not, as was shown in the original opinion, in conflict with the doctrine that a party is estopped only in the capacity in which he is sued, and is, therefore, not in conflict with the ruling in Lord v. Wilcox, 99 Ind. 491. A person made party as heir can not be concluded in his capacity of lien-holder, but may be concluded from collaterally questioning any matter directly affecting him in the capacity in which he is sued, and in such.a case as the present this involves the question whether the decedent was or was not the owner of the land. Gavin v. Graydon, 41 Ind. 559.
¶8Petition overruled.
¶9Filed May 23, 1885.