conditions, were positive in their declarations that they could not see any such ditch. The most that plaintiff can claim for these three ditches is that the one west of the railroad will water 372 acres, a portion of which is east of the railroad; that the ditch coming from the south will irrigate 2 acres, and the one coming from the north will serve 5 acres. It is conceded that the ditch running across the northwest corner is on a line the elevation of which is above all the land lying east of that ditch; but it also appears that it would be very expensive, and therefore not practical, to carry the water over or under the right of way for use on the east side of the railroad. The plan exhibited to the defendant when she signed the notes and mortgage indicated that ditch No. 5 would enter the north side of the Payne land and be extended almost to the south line, and that from this ditch the defendant could irrigate the land east of the right of way without being compelled to adopt an expensive system of syphons for conducting the water from the ditch running across the northwest corner. The specifications remove all doubts that may be raised from a mere inspection of the blue-prints, and demonstrate that according to the original contract ditch No. 5 was to be extended through the land of defendant and almost to the south line, for it is specified that this ditch shall be "one mile" in length; and it appears that if the ditch terminated at the north line it would be only about five-eighths of a mile long. The right to water 55 acres of her land with a system which was defined and made certain and was to be furnished by plaintiff constituted the consideration for the notes and mortgage signed by defendant. The system constructed is materially different from the one promised, and that material difference affects the lands of defendant to a marked degree; and, furthermore, the plant as now installed, even by the employment of expensive and impracticable methods, will serve only four-fifths of the acreage agreed upon when the notes and mortgage were signed on September 18, 1911: Foeller v. Heintz, 137 Wis. 169 (118 N. W. 543, 24 L. R. A. (N. S.) 327). The Irrigation Company had ample notice, before commencing actual construction, that the defendant refused to be bound by the second agreement made with the contractor, and it was not warranted in proceeding with the second contract in despite of the objection made by defendant, so as to make her liable for something she not only did not agree to, but which she expressly repudiated in advance. The plaintiff refused to proceed with the first agreement, while the defendant declined to enter into a new one. The contract actually made was terminated by abandonment, and no new agreement was adopted as a substitute: Davis v. Bronson, 2 N. D. 300 (50 N. W. 836, 33 Am. St. Rep. 783, 16 L. R. A. 655). The notes and mortgage signed by the defendant and mentioned in the complaint are canceled. The decree of the trial court is reversed. REVERSED. Argued July 7, reversed July 30, former opinion modified on rehearing November 23, 1915. YEATON v. BARNHART. (150 Pac. 742; 152 Pac. 1192.) Executors and Administrators-Sale of Property-Collateral Attack. 1. Defenses, interposed in an action by a purchaser at an administration sale to pay debts of the estate to enjoin the sale of real property and to quiet the title thereto, which attack the power of the court to order the sale, are equivalent to collateral attacks on the order of the County Court directing the sale and are unavailing, unless the order assailed was necessarily void. Executors and Administrators-Sale of Land-Jurisdiction of County Court. 2. Under Article VII, Section 1, of the Constitution, vesting the County Court, among others, with general jurisdiction to be defined and regulated by law, Section 12, giving such court jurisdiction pertaining to Probate Courts, and Section 13, authorizing the county judge to grant preliminary injunctions and such other writs as the legislature may authorize him to grant, and Section 936, subdivision 5, L. O. L., giving it exclusive probate jurisdiction in the first instance to order the sale and disposal of the property of decedents, the County Court is a court of general and superior jurisdiction in probate matters, and is vested with limited judicial functions in the common-law sense, which it may exercise in all prescribed matters beyond its special statutory authority in the transaction of county business, and, on petition for the sale of the realty of a decedent based on an allegation of facts requiring an exercise of its power, it could determine its jurisdiction, which determination was conclusive, unless reversed on appeal or avoided for fraud in a direct proceeding. Executors and Administrators-Sale of Realty-Sufficiency of Petition. 3. Under Section 1135, L. O. L., declaring that the court in probate proceedings exercises its powers by means of an affidavit or the verified petition or statement of a party, and Section 1253, providing that a petition for the sale of the real property of a decedent shall state the amount of the sales of personal property, the condition and probable value of the different lots of land, the amount and nature of any liens thereon, and the names, ages and residences of the heirs of the deceased, a petition by an administratrix, duly verified, showing a necessity for the sale, partícularly describing the real property involved, in which the errors or defects, in some respect material, might have been avoided on appeal, but where an appeal had become barred and the order had become the foundation of title to property, was sufficient. Judgment-Lien-Interest of Heirs. 4. Where a daughter of an intestate inherited his real property under Section 7348, L. O. L., subject to her mother's dower under Section 7286, and to the indebtedness of the estate and the expense of administration, any judgment rendered against the daughter and docketed prior to the day when she, as administratrix applied for leave to sell the realty to pay debts of the intestate became a lien on her interest therein. Judgment-Docketing Justice's Judgment-Lien. 5. Section 2442, L. O. L., provides that a judgment of a Justice's Court for the recovery of money does not become a lien upon real property until a transcript thereof has been filed with the county clerk. Section 2449 provides that judgment duly docketed in the Circuit Court may be enforced as a judgment of that court. Section 771 requires the justice certifying the transcript to state that the copy had been compared by him and is a correct transcript of the judgment. Section 201 provides that a judgment of a Circuit Court must be entered by the clerk within the day it is rendered, and Section 205 requires the clerk immediately after recording the judgment to make a memorandum thereof in the lien docket. Held, that judgments against the interest in real property inherited by defendant from her father, not filed as required by such provisions before her application, as administratrix, to sell realty of the estate to pay debts, were not liens on her property, that judgments the transcripts whereof were not certified as required by statute created no liens thereon, but that a judgment duly docketed before such application became a lien thereon. [As to docketing of judgment by justice of the peace, see note in 40 Am. Dec. 386.] 6. It is presumed that official duty has been regularly performed. Executors and Administrators-Administrator's Sale-Effect on Dower. 7. A sale of real property by an administratrix to pay the debts of the deceased did not divest the widow of her right of dower in the premises. Executors and Administrators-Sale of Property-Interest of HeirsJudgment Against Heirs. 8. An administrator's sale of the real property of an intestate to pay his indebtedness deprives the heirs of their estate in the premises, since their rights are inferior to the demands of the creditors, and necessarily destroy the lien upon such land of any judg ment rendered against the heir; but, in case of such sale, the judgment creditor of an heir is not without remedy, as when the distributive share of the heir has been ascertained and ordered by the court to be paid, and such proportionate part of the estate is no longer in the custody of the law, he may thereupon garnish it in the hands of the administrator. ON PETITION FOR REHEARING. Executors and Administrators-Sale of Real Estate-Collateral Attack. 9. Where an administrator's petition for the sale of real estate was sufficient to invoke an exercise of jurisdiction, an order based thereon could not be set aside on collateral attack, though the application and subsequent proceedings might have been vacated on direct appeal. Executors and Administrators-Sale of Property-Interest of Creditors of Heirs. 10. A creditor of an heir of an intestate who has not secured any lien on the heir's interest in real estate, cannot assert any interest therein as against a purchaser at an administrator's sale. Executors and Administrators—Sale of Property—Interest of Creditors of Heirs. 11. A creditor of an heir of an intestate who has acquired a lien against the heir's interest in real estate, and who has actual notice of an application and proceedings for the sale of the land of the intestate or who knows facts such as would put a person of ordinary prudence on inquiry, is guilty of laches precluding any assertion of his judgment lien against the interest in the real estate as against a purchaser at the administrator's sale, where he fails to interpose objections in the proceedings. Pleading-Complaint-Demurrer-Discretion of Trial Court. 12. Whether a defendant demurring to the complaint shall be permitted to answer over rests in the discretion of the trial court, and, if leave is granted, an answer may be filed controverting the allega tions of the complaint. Executors and Administrators Sale of Property Rights of Lien 13. Where a creditor of an heir of an intestate had acquired a lien against the heir's interest in the land of the intestate, and he had no actual notice of proceedings for the sale of the land by the administrator until after the sale was completed, his lien must be decreed against the interest the heir had in the land prior to the sale. From Yamhill: WEBSTER HOLMES, Judge. Department 1. Statement by MR. CHIEF JUSTICE MOORE. This is a suit to enjoin the sale of real property and to quiet the title thereto. The material averments of the complaint, as far as involved herein, are to the effect: That the plaintiffs, Elias M. Yeaton and Alice E. Yeaton, are husband and wife, and the defendant W. G. Henderson is the duly elected, qualified, and acting sheriff of Yamhill County, Oregon. That Stephen Brynjolfson died intestate in that county, November 13, 1909, seised in fee simple of lot 9 in block 2, and lots 7, 8 and 9 in block 3, of Foster's Addition to the town of Sheridan in that county, and leav |