text:
    *Lessee of E. S. Haines v. Thomas J. Lindsey.
    Deputy sheriff may execute a valid deed for lands sold on execution hy himself or principal.
    Warrant deputizing an under-sheriff, filed with the clerk, need not he indorsed to make it valid.
    This case came Defore the court on a motion for a new trial, made by the defendant; the decision of which was adjourned here from Clermont County. The defendant claimed title under a sale upon judgment and execution, the sheriff’s deed being executed by the deputy sheriff. At the trial this deed was rejected, with leave that the defendant move for a new trial, for error in the sourt in rejecting that deed.
    T. Morris and T. Moorehead,
    in support of the motion.
    Este,
    against it.
   By the Court :

In the most ancient times of the English common law, the sheriff had his under-sheriff. 6 Com. Dig. 413. Such deputy, when appointed, was vested with authority, to perform every ministerial act that the -principal sheriff could perform. The power given the principal sheriff, by our statute, is but in affirmance of the common law, and must be considered as clothing the deputy with the ordinary authority exercised by the deputy sheriffs at the common law; and we .think that upon just principles of-analogy, the power to make conveyance of lands sold under execution may be legitimately exercised by the deputy.

The writ of elegit in England directed the sheriff to hold an inquisition upon the debtor’s lands, and according to the finding of that inquisition, set off to the plaintiff, in execution, a certain portion of those lands to be held, at an annual rent, until the debt is paid. The inquisition and sheriff’s return upon'the writ are the evidence of the creditor’s right to the possession of the lands. It has been adjudged, not only that a deputy sheriff may take an inquisition, and make an extent upon elegit, but that the bailiff of a liberty may do it, by warrant under him. Croke Cha. 319. In our state, the border of the court confirming a sale, and the sheriff’s deed in conformity with that order,are essential items of proof to sustain the purchaser’s title. And there is certainly nothing but what is strictly ministerial, in executing the deed, when the court, acting judicially, have confirmed the sale. Holding an inquisition upon elegit bears a much stronger semblance of exercising a judicial authority.

In New York it is settled that an inquisition of damages may be held by the deputy sheriff. 2 Johns. 63. The very question presented in this case has been directly decided in that state, and the validity of a sheriff’s deed executed by a depúty sustained. 10 Johns. 223; 7 Cow. 737. The statute of New York authorizes the sheriff, “ by writing under his hand and seal, to make some proper person under-sheriff,” etc. It directs that “ such be recorded in the office of the clerk of the county; ” but it does not define what shall be the powers of the deputy, in the life of the principal. In case of his death, it declares “-the deputy shall, in all things, execute the office of sheriff of the same county.” Our statute is much stronger than this, for it directs that the warrant appointing the deputy shall authorize him to perform all and singular the duties appertaining to the office of sheriff, within his respective county.” These duties ho may perform in the life of the sherifl and as the execution of the deed, after a sale of real estate is one of them, we consider the authority as vested in the deputy by express terms.

In this case an exception is taken that the warrant constituting the deputy has not been filed agreeably to the provision of our statute. It appears to have passed through the proper office before it was placed with the papers in this cause. There is no further evidence that it was filed. In our practice, the ordinary evidence that a paper has been officially filed, is the clerk’s indorsement of that fact upon the back of it. But we are not prepared to say that it can not be filed unless thus indorsed, or that no other evidence than the indorsement can bo received to establish the tact of filing. It would be especially dangerous to suspend the validity of titles to land upon any practice of a ministerial officer, regulated by no positive law, and not so supported by usage and precedent as to constitute an unbending rule. The exact time when a paper is placed upon file frequently is *very material to rights arising under it, and, for this reason, the practice of indorsing the fact and the date upon the paper itself meets the entire approbation of the court. Still, had the paper been placod in the office, either strung upon a thread, or laid in a drawer or pigeon-hole, we conceive it would be filed within the terms of the law. The fact of filing it is to be regarded as a matter in pais, seeing there is no law directing it to be made matter of record. In the absence of all testimony with regard to the paper, except that it had been in the clerk’s office, before it was used in the cause before us, we feel bound to presume that it was regularly filed. If the deputy deposited his warrant of deputation with the clerk, and that officer omitted to file it, we are not satisfied that the power of the deputy should be deemed void upon that account. 1 Cranch, 161. But it is not necessary now to express an opinion on this point. The verdict must be set aside, and a new trial granted; the costs to abide the event of the suit. Judgments between the parties. Holmes had recovered two judgments against Eobinson, in the courts of Franklin county, for an aggregate amount of more than one thousand dollars. Robinson, who, on the record, sued for the use of Reed, had recovered against Holmes, in the Supreme Court of Pickaway county, for a sum exceeding three hundred dollars. Besides the judgment debts, Robinson owed Holmes some other moneys, and there was a suit in chancery pending between them, in which a master had reported a considerable balance due from Robinson to Holmes. There was no assignment of the debt against Holmes, from Robinson to Reed, but it was in proof that Robinson was indebted to Reed, and that Robinson had agreed with the attorney who held his note to Reed, that *the suit against Holmes should be brought for Reed’s use, and the amount, when recovered, applied to the payment of Reed’s claim. The motion was adjourned here for decision from the county of Pickaway. . '


source: Caselaw Access Project

author: By the Court :

license: Public Domain

text:
    Jonathan Holmes v. John Robinson.
    Judgments, in the same rights may he set off, on motion; but in a ease where different interests are involved, it ought not to be done.
    This was a motion made by Holmes to have a set-off of certain

      G-. W. Doan,
    in support of the motion.
    J. Olds,
    against it.
   By the Court :

The practice of setting off one judgment against another, between the same parties, and due, in the same rights, is ancient and well established. Some of the adjudged cases go upon the principle of extending the statutes of set-off in their spirit of equity and justice. Others hold the exercise of the power, independent .of the statutes of set-off, and rest it upon the general jurisdiction of .a court over the cause and the parties, when before them. Of the first class of cases, we may cite 3 Wil. 296; 2 Black. 826; 2 Bos. & Pul. 28; 2 Caine, 190. Of the latter, 4 Term, 123; 1 Johns. Ch. 91; 6 Serg. & Rawle, 443; 8 Mass. 451.

But in order to warrant the set-off, it seems to be equally well settled that the actual debts must exist in the same right. This is clearly settled, in the cross-cases of Duthy v. Tito and others, Strange, 1203. There were verdicts in both cases for the defendants, and Tito moved to set off the costs, recovered by himself and co-defendants of Duthy, against the costs recovered by Duthy of Tito alone. But his motion was refused. Chancellor Kent considers this the true rule, both at law and in equity. Duncan v. Lyon, 3 Johns. Ch. 451; 2 Burr. 1214; 1 Atkins, 237; 2 Merivale, 121.

It is perfectly clear, both from the record and the other prooí, that Reed has an interest in the judgment against Holmes. Ho does not appear before us, nor does it appear that he has had notice of the motion. He may be injuriously affected by a decision on the merits of the motion. This summary mode of exercising the legal or equitable power of the court is not the most proper, when there is an uncertainty as to the rights of parties. 8 Mass. 451. The motion must, therefore, be overruled.


text:
    *Stiles, ex dem. Miller & McDonald, v. W. S. Murphy.
    Judgment is not a lien upon after-acquired lands, aliened by the debtor before levied upon.
    This case was adjourned here, for decision, from the county of Pickaway. It was an ejectment, and came before the court upon a case agreed. The material facts were these: T. W. Dyott, at June term, 1822, recovered a judgment, in the county of Pickaway, against Henry Nevill, for one' thousand and twenty-three dollars and fifty cents. Execution was taken out and levied upon a tract of land containing three hundred and thirty-three and two-third acres, on March 24, 1825. In February, 1829, the undivided two-thirds of said land was sold, on Dyott’s execution, to the defendant, for seven dollars sixteen and three-fourths cents per acre. The sale was confirmed, and a deed, in due form, executed by the sheriff to the defendant, who claims under it. On September 4, 1822, Nevill acquired title to this land; on January 27, 1823, Nevill executed a mortgage of the land to the lessors of the plaintiff. On January 4, 1825, a scire facias issued upon the mortgage, and a judgment of execution was rendered on January 5, 1825. On August 1, 1826, an execution issued, which was returned, stayed. A levy was first made January 1, 1828. On February 21, 1829, the property was sold to the lessors ot the plaintiff for seven dollars and seven cents per acre. The sale was confirmed, and a deed executed, in due form, under which the lessors of the plaintiff claim.

      Folsom, for the plaintiff.
    Ewing and Doan, for defendants.
   By the Court :

The only question submitted, was, whether a lien of a judgment attaches to after-acquired lands, so as to affect the rights of a bona fide purchaser. The question now presented for consideration was decided, by this court, in the *case of Roads v. Symines, 1 Ohio, 313; but the confidence of learned counsel in a contrary opinion, has called the court to a more particular examination of the principles involved in that decision.

By the common law, a man could only have satisfaction of the goods, chattels, and present profits of lands. 3 Black. Com. 418. The lands and person were exempt from execution upon feudal principles, which it is not necessary to review. The king, by his prerogative, might have execution of body, goods, and lands; and in an action of debt against an heir, upon an obligation made by his ancestor, the lands descended were liable to execution. 3 Co. 12, a; 1 Bac. Ab. 686. These were the excepted cases at common law. The statute of Westminster 2, (13 Ed. I., c. 18) subjected a moiety; and the same year the statute de mercatoribws, all the lands of the debtor to execution. The proceedings under our fieri facias have some analogy to those under the first-mentioned statute, although the tenant by elegit, and the purchaser at sheriff’s sale, hold very different estates. The statute of Westminster 2, is in these words: “ When debt is recovered or acknowledged in the king’s court, or damages awarded, it shall be from henceforth in the election of him that sued for such debt, or damages, to have a writ of fieri facias unto the sheriff, to levy the debt upon the lands and chattels of the debtor (saving only his oxen and beasts of his plow) and one-half of his lands until the debt be levied upon a reasonable price and extent. And if he be put out of the land, he shall recover it again by writ of novel disseizin, and after that by writ of redisseizin, if need be.” Rastal’s Statute, 149.

Strange as it may seem, it is very difficult to ascertain the extent given to liens under this statute. The 29 Car. II., c. 3, extended the creditor’s right to a moiety of the debtor’s land held in trust. Section 15 limits the lien to the day the judgment was entered. Blackstone says, “ If the goods are not sufficient, then the moiety, or one-half of the freehold lands which he had at the time of the judgment given, whether held in his own name, or by any other in trust for him, is also to be delivered to the plaintiff to hold, till out of the rents and profits thereof the debt be levied, or until defendant’s interest bo expired.” 3 Black. Com. 418. *2 Inst. 395, is cited, which is to the same effect. Many of the English authorities warrant a different conclusion. Roll. 892; Plow. 72. The form of the elegit corresponds with the authorities last cited. The command of the writ to the sheriff is, “that without delay you cause to be delivered to the said A., by reasonable price and extent, all the goods and chattels of the said B., on the-day of (the day the judgment was signed), the-year of our reign, on which day the judgment was given, was, or at any time since, hath been seized to him, the said A., to hold,” etc. Imp. 284. No adjudged case can be found in the English books, so far as opportunity has been allowed for examination, upon the question whether lands acquired subsequent to the judgment, and conveyed before the execution issues, are liable to inquisition under an elegit. The Supreme Court of Pennsylvania has traced the authorities to the year books, and conclude it is not settled by any of them. The learned judges examined the case (30 Ed. III. 24), and deny the inference drawn by subsequent elementary writers from it. 6 Bin. 135. The court, however, based their decision, in that case, upon the usages and practices which prevailed in Pennsylvania. The same court in the case, of Richter v. Selim, 8 Serg. & Rawle, 425, appear to consider their former decision an innovation upon the law, and not an improvement; they therefore confine the rule most strictly to the point before decided, and refuse to extend it beyond the letter. Indeed, more than a doubt is expressed of the correctness of the former decision.

In looking further into the American cases, the question still appears nowhere solemnly decided. It has been adjudged in New York, that where the body of the defendant has been taken in execution the lien of the land is suspended; and if, during imprisonment, a fi. fa. is issued on a junior judgment, and the land is sold, the purchaser shall hold. 13 Johns. 533. It is also said by Spencer, Judge, in Stow v. Tifft, “that it can not be doubted that a judgment will attach on lands, ot which the judgment debtor becomes seized, at any time posterior to the judgment; and nothing could prevent a judgment creating a lien on the subsequently acquired lands of the judgment debtor, but the circumstance that his seizin, in the given case, -was instantaneous.” 15 *Johns. 464. The question before the court was, whether a widow could be endowed of lands when the seizin of the husband was but for an instant, and passed from him eo instanti he acquired it. The case of Ridgely v. Gartrill, 3 Harris & McHen. 449, was this: At May term, 1787, the plaintiff obtained a judgment against G. Burgess, for the debt, etc., which was not paid. At the time the judgment was rendered, Burgess was seized in fee of a tract of land of more value than would satisfy the judgment. In 1791, Brown’s executors obtained a judgment for a hundred pounds, and costs. In 1792 a ft. fa. issued, by virtue of which the sheriff sold the land to the defendant, who paid the money and obtained the deed. This was a scire facias to the defendant, as terre-tenant, to make the land answer to the plaintiff’s judgment. The report furnishes no argument, or reference to authorities, or even to the statutes of Maryland. The reporter says, “ the court gave judgment for the plaintiff upon the statement of facts.” Upon a careful examination of all the authorities within our reach, the point under consideration does not appear to have been solemnly adjudged, upon full investigation, either in England or in our own country, except in Pennsylvania. Our researches have furnished but little light upon the question, and it seems not much less distinct in the mists of antiquity than in our own day. We would appear, then, to violate no settled principle, in analogous cases, by giving to our statute the construction which our circumstances and policy require. With us, the judgment creditor’s lien upon the debtor’s land, the right to sue, and the manner of transferring to'the purchaser, are all matters of statutoi-y regulation. The statute declares that “the lands and tenements of the debtor shall be'bound for the satisfaction of any judgment against such debtor, from the first day of the term at which judgment shall be rendered.” The writ of fieri facias “ shall command the officer to whom it is directed, that of the goods and chattels of the debtor, he cause to be made the moneys specified in the writ; and for want of goods and chattels, he cause the same to be made of the lands and tenements of the debtor.” It is provided in section 11 of the same act, “that the sheriff, or other officer, who, by such writ, or writs of execution, shall sell the said lands and tenements so ^levied upon, or any part thereof, shall make to the jmrchaser or purchasers as good and sufficient a deed of conveyance for the lands and tenements so sold as the person or persons, against whom such writ or writs of execution were issued, might or could have made for the same, at any time after said lands become liable to said judgment, which deed shall be prima facie evidence of the legality of such sale, and the proceedings thereon, until the contrary be proved, and shall vest in the purchaser as good and as perfect an estate, in the premises therein mentioned, as was vested in the party, at or after the time when the said lands and tenements became liable to the satisfaction of the said judges.” 22 Ohio L. 108. The legislature, in giving judgments on a lien, had particularly in view the lands that the debtor held at the time when the judgment was rendered. They clearly intended the judgment should attach to these, so that a purchaser would hold them cum onere. The execution, according to its command, was not only intended to embrace lands upon which the judgment was a lien, but those held by the debtor at the time the execution was issued and a levy made. The command of the fi. fa. certainly does not embrace, in terms or literally, the lands acquired at any time posterior to the judgment, but which had been aliened before the execution issued. Such can not, with strict propriety, be said to be the “ lands of the debtor.” They were not the lands of the debtor, and, therefore, not “ bound by the judgment.” The deed of conveyance shall be as good and sufficient as the debtor could have made at any time after the said lands became liable to the said judgment. According to our construction, the lands held by the debtor, when the judgment was rendered, as well as the lands held at the time of issuing the execution, are “liable to judgment,” and to “the satisfaction of the judgment.” The legislature has defined more explicitly the deed of the sheriff, and the effect of it. In giving the lien of the judgment, in the command of the fieri facias, in the definition of the sheriff’s deed, and in declaring its effect, the legislature has guarded the terms employed in the most cautious manner, to save lands of the debtor, purchased after the judgment, and aliened before execution. This inference is most strongly deduced from the command of the fieri facias. If we are to arrive at the law of the court *f'rom the form of the elegit, we may surely, with equal propriety, infer the intention of the legislature, from the command of the fieri facias, as given in the statute. It is a matter of history that this law was drafted by learned counsel, appointed as a committee of revision, who were undoubtedly exactly acquainted with the form of the elegit. We can not but presume many members of the legislature, who passed it, were intimately acquainted with the common and statute law touching executions. It must have been well known that the elegit, in form, extended itself to a moiety of all lands of the debtor, held at the date of the judgment, or of which he had been seized at any time since. If such had been the intention of the legislature, they would have framed their execution accordingly. Por the satisfaction of the execution, those are the lands of the debtor which are bound by the judgment, as well as those afterward acquired, but not conveyed. The terms in which this construction is expressed, are without ambiguity, and do not require analogies to render them satisfactory. But this point has been put to rest in the case of Roads ». Symmes. When a rule of construction has been adopted, upon which titles tó real estate depend, it would lead to great inconvenience, if not injustice, to alter it. That decision may have been an innovation upon established principles of law — -it may have been a departure from true policy, under the circumstances in which we are placed — but it would be a more dangerous innovation, and a wider departure from true policy now to disturb it. 2 Cran. 22 ; 1 Ohio, 1.

Judgment for the plaintiff.


text:
    *Thomas Stewart and Jonathan Chapline v. Treasurer of Champaign County, for use of John McAdams.
    A- devastavit by an administrator can not be suggested and proved, in a suit on administrator’s bond, against the administrator and his securities.
    This was a writ of error to a judgment of the court of common pleas, rendered against the plaintiff in error, in favor of the defendant in error. It was an action of debt brought upon an administration bond, the defendants being securities, and the writ, as against the administrators, being returned not found.
    The declaration set out the granting of administration, and the execution of the bond. It then averred a judgment in favor of McAdams against the administrators, and that assets to a certain amount had come to their hands, which they had wasted; but it contained no averment that any execution had issued on the judgment of the plaintiff against the administrators, or of any adjudication that they had wasted the assets. Judgment was rendered in the common pleas against the plaintiffs in error by default, to reverse which the writ of error was brought.
    The errors assigned were :
    1. That the record did not show that a devastavit had been established by action, or otherwise.
    2. That it did not appear that any execution had been sued on the plaintiff’s judgment against the administrators, before the commencement of this suit.
    3. That the judgment was founded on a devastavit, and the record did not show that any devastavit was found by the court, the inquisition of a jury, or otherwise.
    4. The general error.
    Mason, for plaintiff.
    Anthony, for defendant.
   By the Court :

The principal question to be decided in this case is, whether, in an action upon an administrator’s bond, brought against the administrator and his securities, the fact of a *devastavit by the administrator can properly be put in issue and tried and determined. The statute 1 Hen. VIII., c. 5, directed the taking of surety for the true administration of goods, chattels, and debts. The statute of 22 and 23 Car. II., c. 10, commonly called the statute of distribution, declares “ that all ordinaries and ecclesiastical judges, upon granting administration, shall take a bond of the administrator with two or more sureties, with condition that the administrator shall make a true and perfect inventory of all the goods and chattels of the deceased, and exhibit it unto the registry of the ordinary’s court, by such a day, and to administer according to law; and to mako a true and just account thereof; and to make distribution of the surplus.” Under these statutes, much difficulty was experienced by the English courts in settling an uniform mode of establishing a devastavit.

Anciently, if the sheriff returned nulla bona, and also a devastavit to a fieri facias de bonis testatoris, sued out upon a judgment obtained against an executor, it was sometimes the practice to sue out a capias ad satisfaciendum against the executor. Several otbei methods were devised, which need not be enumerated, as they have long since fallen into disuse. The practice in the common picas was, upon suggestion', in the special writ of fiera facias of a devastavit, to direct the sheriff to inquire, by jury, whether the executor had wasted the goods, and if the jury found he had, then a scire facias was issued against him, and unless he made a good defense thereto, execution was awarded, de bonis propriis. It afterward became the practice of both courts to incorporate the fieri facias inquiry and the scire facias into one writ called a scire fieri inquiry. This writ recites the-fieri facias de bonis testatoris, the return of nulla bona by the sheriff, and then, suggesting that the executor had sold and converted the goods of the testator to the value of the debts, commands the sheriff to levy the debt, etc., of the goods, etc., •of the testator, in the hand of the executor, if they could be levied thereof; but if it should appear to him by the inquisition of a jury, that the executor had wasted the goods, then the sheriff is to warn the executor to appear, etc. This practice is still frequently adopted.

*But the most usual mode of proceeding is by action on the judgment, suggesting a devastavit. 1 Saund. 219, n. 8. A fieri facias is first sued out, and upon the sheriff’s return of nulla bona, an action is commenced on the judgment, stating the judgment, the writ of fieri facias, and the sheriff’s return ; and on the trial, the record, the writ, and return will be sufficient evidence to prove the caso. And the action may be brought upon a bare suggestion of devastavit, without any writ of fieri facias first taken out. 1 Saund., n. 8, cited ; Wheatly v. Lowe, 1 Sid. 397. These modes of establishing a devastavit are well settled by the English practice. So far as can be discovered, no attempt has been made to fix a devastavit upon an administrator, by making a suggestion, in the suit against him and his securities, upon their bond. The administrator may traverse the inquisition as well as the return, and is entitled to the same defense. Gibson v. Brook Croke Eliz 859. Itcan notbedisputed that this has been treated as a matter of practice, under the control of the court, as to which they can establish their own rules. 4 Conn. 4-15. Thepractice adopted in this country appears uniformly to bo an action upon the judgment, suggesting & devastavit. 3 Hen. & Munf. 123; 4 Munf. 466; 1 McCord, 76; 4 Conn. 445; 4 Bibb, 83. The practice, so far as can be ascertained in this state, is to sue upon the judgment making the suggestion. It is probable the provisions of our statute would make a difference in some instances, in the evidence on trial. During the time limited by the court for the settlement of estates, no execution can be issued upon a judgment rendered against an administrator. We are not, however, in this case, to determine what shall be evidence of a devastavit, under the provisions of our statute. By section 5 of the act “defining the duties of executors and administrators,” it is provided that the court shall require the administrator to give bond, with two or more sufficient securities, conditioned for the faithful performance of the duties required of him by law. Section 11 declares that a refusal or neglect to settle up the estate shall be deemed a breach of the bond of the administrator. It is probable this was useless legislation, for one of the duties the law requires of the administrator is to adjust and settle up *his accounts, within eighteen months from the date of his letters, unless the court shall extend the time.

If the non-performance of any duty, which the statute requires of an administrator, could be assigned as the breach of the condition of his bond, it is clear that this might, upon general principles, without any declaratory act. This cause was treated at bar as if the whole remedy, upon the bond against an administrator and his security, depended upon establishing or suggesting a devastavit.

It is not necessary now to decide whether the condition of an administrator’s bond was only intended to protect heirs and creditors against a single malfeasance. The condition would, indeed, appear to secure the performance of every duty which the law enjoins on an administrator. Nor can this view of the subject disturb the authority of Treasurer of Pickaway County v. Hall, 3 Ohio, 225. That was an action on the bond of the administratrix, and the principal breach assigned was “that she had neglected and refused, though often requested, and demanded particularly on March 30, 1827, to pay the said Nicholas and Rebecca,” for whose use the action was brought, “ said Rebecca being one of the heirs of Joseph Glasé, deceased, the proportion of moneys before that time, come to the hands of the administratrix, to which said Rebecca, as heir at law, was entitled.”

The court say, “If the plaintiff claims as heir, he must show how he makes himself so, that his right may judicially appear to the court, and the proportion due to him be ascertained.” Again: “ It is much the safer doctrine to require proceedings, first, against the administrator himself, and only allow resort to the surety, when nothing is to bo contested but the question of payment.” The questions considered by the court were: 1. Whether, in the declaration, the plaintiff had showed herself, with sufficient certainty, to be heir to the intestate. 2. Whether, admitting she was heir, she could sue upon the bond as distributee befoie settlement, and her proportion had been ascertained. The court never could have intended to be understood as deciding that no breach of the condition of the bond could be assigned, except non-payment to the distributees, nor that the bond could not bo forfeited, so as to charge the securities, until *final settlement. The legislature, without doubt, intended this bond as a security, not only for the heir, but for the creditors, and indeed all interested in a just administration of the estate. But this is aside from the consideration whether devastavit can be assigned in a suit upon the bond of the administrator. A creditor shall not take an assignment of the bond and sue it, and assign for broach the non-payment of debt as to him, or devastavit committed by the administrator, for that would be needless and indefinite. Archbishop of Canterbury v. Wells 1, Salk, 315. The first proposition in this decision has been questioned, 13, Johns. 437 ; but it has received the sanction of the Supreme Court of Massachusetts, 9 Mass. 114; and so far as an authority upon the question under consideration, has never (that can be discovered), been doubted. In the case of the People v. Dunlap, the Supreme Court of New York do not expressly decide that devastavit may be suggested, upon a suit on the bond of the administrator; but rather seemed to permit the recovery, upon the ground, that the suggestion, under the statute, amounted to an assignment of a breach of the condition. The cases cited by that court are 1 Wash. 31, and 9 Mass. 114. If the object in citing these authorities was to maintain the proposition, that in a suit on the administrator’s bond a devastavit might be suggested, they furnish no authority to support it. In neither of those eases is there any such suggestion. The wasting of the estate is in itself a tort. It is contrary to the oath of the administrator, and the trust and confidence reposed in him. To the suggestion on the inquisition, not guilty, may be pleaded. It is like a criminal prosecution, 1 Wash. 31. It would present a strange anomaly to join a security, whose liability arose from contract merely, with a principal charged in an action ex delicto I Whether we look to precedent and authorities, or the reason of the thing, the conclusion is forced upon us that a devastavit can not be established in a suit against the administrator and his securities upon the official bond. How a devastavit shall be fixed, and how far the securities under our statute shall be liable for such malfeasance, must be left open for consideration. The question on the record is, whether a devastavit can be first established upon the suit against the administrator and his securities; and we are clearly of ^opinion it can not, and that such practice would be warranted by no authority. The conclusions of the court will be found supported by the following authorities: 1 Salk. 315 ; Camp. 140; 3 Atk. 248; 1 Munf. 1; 1 Wash. 31; 9 Mass. 114; 1 Marsh. 488; 2 Bibb, 292.; 13 Johns. 443; 1 Bay, 328; 1 McCord, 76. In these various authorities, with the exception of 13 Johns. 443, we find no suggestion of devastavit in the declaration upon an administrator’s bond, nor is a question made of the liability of the administrator and his securities upon a breach of the condition. Upon the first error assigned, the judgment of the court below must be reversed. No argument was furnished on either side.


text:
    Daniel B. Bush and others v. William Critchfield and others.
    Where persons covenant as sureties, that their principal shall sell and account for all merchandise placed in his hands, within a stated period, it is not necessary to aver notice to the securities of a failure, in an action on the covenant.
    This was an action of covenant, adjourned here for decision from the county of Knox. The declaration contained two counts upon the same covenant. The second count stated, that on June 27, 1825, the defendants covenanted with the plaintiffs, in consideration that the plaintiffs would supply one D. B. McConnel with merchandise to sell on commission, at such per cent, as the plaintiffs and McConnel might, or had agreed upon ; that the said defendants would hold themselves responsible for the faithful and honest performance of said McConnel, for one year from that date, and as much longer as said McConnel should be justified in the sight of the plaintiffs and defendants; and that said McConnel should render a true and just account of all merchandise so delivered by the plaintiffs to him, and of sales made of such goods by him, as often as the plaintiffs should call for such account. The defendants further covenanted that McConnel should, faithfully and honestly, fulfill all that he had engaged, by an article with the plaintiffs, dat'ed April 18, 1825, and that the defendants would be bound for the merchandise delivered under said article, as if *they had formerly been bound with their co-defendants and others, for the same, for the faithful performance of the same; which article of April 18, 1825, is then recited in the declaration, containing various stipulations for selling and accounting for merchandise, and for articles received in barter for the same, at an allowance of fifteen per cent, upon proceeds of sales. The declaration then avers, that on June 28, 1825, plaintiffs delivered a large amount of merchandise to McConnel, to be sold on commission, under the contract. It then avers that McConnel did not, for one year from June 27, 1825, “honestly and faithfully account with and pay to the said plaintiffs the money for which said McConnel sold the said goods, wares, and merchandise; but, on the contrary thereof, said McConnel, within one year from June 27, 1825, sold a large quantity of the said merchandise, and received for the same a large sum of money, to wit, the sum of eighteen hundred dollars, which he neglected and refused to pay,” etc., assigning various other breaches, under the contract of June 27, 1825, as including the contract of April 18, 1825, concluding with an averment that McConnel had failed to comply with the terms of the contract, “although said plaintiffs afterward, to wit, on April 17, 1828, at-county aforesaid, and within one year from June 27, 1825, called on said McConnel for that purpose.” The declaration contains no averment that the defendants had notice of any failure alleged in the declaration.
    The defendants pleaded, first, that they had performed their covenants.

      Second. That on'April 17,1826, McConnel settled and accounted with the plaintiffs for all the goods delivered, and for the profits of sales, and generally of .all matters arising on the contract, and delivered to them goods and merchandise of the value of fifteen hundred dollars, and gave separate promissory notes for sums specified to individuals named by mutual agreement between the plaintiffs and McConnel, in full satisfaction of the whole contract, and for the merchandise delivered by plaintiffs to McConnel, and for the profits arising on the sale.
    The plaintiffs joined issue on the plea of general performance. And to the special plea, they also replied, negativing *the allegations of the plea, and concluded by tendering an issue to the country. To this replication the defendants demurred.
    H. Stanbery, for plaintiff.
    T. Ewing, for defendants.
   By the Court :

It is a general rule, that where a matter does not lie more properly in the knowledge of one of the parties than the other, notice is-not requisite; therefore, if a man is bound, by obligation of covenant, or promises to do a thing, on the performance of an act by a stranger, notice need not be alleged, for it lies in the defendant’s knowledge, as much as the plaintiff’s, and he ought to take notice at his peril. 2 Saund. 62, n. 4; 2 Chit. 81; 11 Johns. 61.

The defendants have covenanted, in general terms, to hold themselves accountable for the fidelity of McConnel, and that he should render a true account for one year; and if it had been the intention of parties, that the obligors should have notice, that should have been inserted in the condition. A party who covenants generally, to do a particular thing, is bound at all events. Duffield v. Scott, et al., 3 Johns. 374, The plaintiffs had less to do with the supervision of McConnel’s conduct than the defendants; nor had they any better means of ascertaining that he was converting the proceeds of the goods to his own use. The plaintiffs did not reserve the power of visitation, nor did they covenant to notify the defendants of McConnel’s mode of transacting the business. The defendant, in consideration of a ruff-band delivered to him, promised to pay to him, on the day of the plaintiff’s marriage, three pounds, and alleged he was married such a day, yet although often requested he had not paid. There was a judgment of nihil dicit and inquiry. A motion was made in arrest of judgment, because there could be. no breach of promise unless notice was given of the plaintiff’s marriage; but Hutton, Harvey, and Telverton adjudged it to be good enough, for the defendant, at his peril, ought to take notice, and the plaintiff need not show he gave notice *of the marriage. Croke Car. 34. In the case of Norris et al. v. Powell, 14 East, 510, a bond had been taken by the commissioners of the land tax for the fidelity of a collector. It was objected that no notice had been given to the surety, of the collector’s default, nor demand of payment made, until after the principal bad been discharged for misconduct; but both points were overruled by the court. Fell on Guaranties, 224. The defendants do not assume the position, that there is any express covenant to give notice, or even covenant in law to do it; but rather place their case upon principles of commercial law.. But certainly there is no just analogy between principles and surety in a bond, and the drawer and indorser of a bill of exchange, so far as legal principles fix their liabilities. The liability of an indorser is conditional, and entirely arbitrary. His undertaking is conditional, that he will be holden, upon demand and refusal of the drawer, and notice of those facts. This condition, though not expressed, is of the essence of the contract. There is no such contract implied in sealed instruments. If parties wish to have and give notice, they must so covenant, and then the non-performance might be assigned as a breach. As this instrument stands, there is no express covenant to give notice to the defendants of McConnel’s default, nor are the covenants such as to raise any in law. From the nature of the covenants, the defendants were bound, at their peril, to take notice of the breaches.

Demurrer to the replication overruled, and costs taxed to the defendants since filing, and the cause continued for inquiry of damages.


author: Judge Swan:

text:
    *Henry Raguet v. David Wade.
    Law authorizing tax upon merchants not unconstitutional.
    Reserved from Hamilton county.

      The declaration is for taking and carrying away goods, etc., of the plaintiff to the value of five hundred dollars.
    The defendant pleads, first, the general issue.

      Second. That the defendant was treasurer of the county of Hamilton, and as such was authorized by law to collect all taxes assessed by and under the authority of the State of Ohio within said county. That at the time of seizing and taking said goods the plaintiff was a merchant, selling goods, wares, and merchandise, within said county, and was subject to pay a tax upon his capital employed, etc., and being so subject was taxed in the sum of-dollars, under and by virtue of the laws aforesaid; and said tax being so laid and assessed, was placed in the defendant’s hands, as treasurer, to collect; and the plaintiff wholly neglecting and refusing to pay the same, defendant entered, etc., and took, etc., and disposed of said goods according to law, which is the same, etc.
    The plaintiff replies that his capital was employed in importing into this state from other states, and that he was vending, by wholesale and re.tail, divers, etc., the growth, etc., of foreign Countries and other states, etc., and he, the plaintiff, imported direct from said states, in bulk and in packages, put up by the manufacturer, none of which, by law, were the subject of taxation by the state authority, etc.
    To this replication there is a general demurrer and joinder. . The question submitted was, whether the law of the state, imposing a tax upon the capital employed by merchants is constitutional.
    Hammond, for plaintiff.
    Wade, for defendant.
   Opinion of the court, by

Judge Swan:

This presents an inquiry of acknowledged delicacy, concerning the constitutional powers of the general and state ^governments. The question is deeply interesting to this state, as her citizens must depend upon this general legislative authority for the preservation of their faith and the completion of the public works they have undertaken. It is imposing, as it involves the exercise of sovereign power. The acts of the legislature, supposed to be in conflict with the constitution and laws of the United' States, were passed February 3,1825, and January 17,1826, and, so far as concerns the present inquiry, are in these words : “ All persons trading in foreign or domestic goods, wares and merchandise, or drugs and medicines, within this state, whether the capital employed in such trade shall be owned within the state or elsewhere, shall be considered merchants, and as such shall be classed according to the amount of annual capital by them respectively employed.” The act of January 17, 1826, is exactly in the same words, except “ they are to be entered on the general list of taxation, and as such shall be assessed according to the amount of capital by such merchants respectively employed,” etc. This is a part of an equitable system of taxation, adopted to meet the disbursements for canals, as well as to defray the general expenses of the government. The right of taxing capital employed in merchandise, of licensing tavern-keepers to vend foreign and domestic liquors, and of regulating retailers, peddlers, and brokers, has been exercised without question as to its constitutional existence from the foundation of the state government. Whatever, then, may be the effect, it would be unjust to impute to the legislature any intentional invasion of the laws of Congress, or the constitution of the United States.

The plaintiff insists that these acts of the legislature are repugnant to article 1, section 10, of the constitution of the United States, which declares that no state shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; ,and also to article 1, section 8, which says Congress shall have power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”

The powers of the general and state governments, under these clauses of the constitution, have been so often and so *ably discussed, and the principles so profoundly considered by the Supreme Court of the United States, that nearly the whole grounds have been occupied, and but little remains for us other than the application of those principles as settled to the case presented by the pleadings. The powers of the different governments under article 1, section 10, of the constitution, are very candidly ana ably examined in the thirty-second number of the Federalist, by Mr. Hamilton. This fair and profound commentary upon the constitution has deserved and received the approbation of the highest judicial tribunal in the nation. The power of the states to impose taxes on all articles other than exports or imports, is there contended to be manifestly a concurrent and co-equal authority,” etc. There is plainly no expression in the granting clause which makes that power exclusive in the Union. There is no independent clause or sentence which prohibits the states from exercising it. So far is this from being the case, that a plain and conclusive argument to the contrary is dedueible from the restraint laid upon the states in relation to the duties on imports and exports. This restriction implies an admission, that if it were not inserted the states would possess the power it excludes; and it implies a further admission, that as to all other taxes the authority of the states remains undiminished. In any other view it would be both unnecessary and dangerous. It would be unnecessary, because if the grant to the Union of the power of laying those duties implied the exclusion of the states, or even their subordination in this particular, there could be no need of such restriction; it would be dangerous, because the introduction of it leads directly to the conclusion which has been mentioned, and which, if the reasoning of the objectors be just, could not have been intended. I mean that the states, in all eases to which the restriction did not apply, would have a concurrent power of taxing with the Union. In the ease of Sturges v. Crowninshield, 4 Wheat. 122, one of the principles recognized was, that the mere grant of a power to Congress did not imply a prohibition on the states to exercise the same power; but wherever the terms in which a power is granted to Congress, or the' nature of the power, required that it should be exercised exclusively by Congress, the subject is as completely taken from the state ^legislatures as if they had been expressly forbidden to act upon it. This leaves a class of cases in which the general and state governments have co-ordinate and concurrent powers of legislation. The states were, therefore, not forbidden to pass bankrupt laws, provided they should contain no principle which would violate section 10, of article 1, of the constitution of the United States.

In the case of Gibbons v. Ogden, 9 Wheaton, 1, it was decided that the power to regulate commerce was the power to prescribe the rule by which commerce was to be governed; that it was complete in itself; might be exercised to its utmost extent, and had no limitations other than those prescribed in the constitution. But the court say, “ The grant of the power to lay and collect taxes, is like the power to regulate commerce made in general terms, and has never been understood to interfere with the exercise of the same power by the states, etc. The power of taxation is indispensable to their existence, and is a power which, in its own nature, is capable of residing in, and being exercised by, different authorities at the same time” — p. 199. The co-ordinate authority seems a necessary result of the division of sovereign power. The self-preservation of both governments requires the exercise of the taxing power; and it seems admitted by the whole tenor of the constitution. The principle appears established beyond controversy, that the states can tax all articles concurrently with the general government, except imports and exports, or where it will interfere with the power of Congress to regulate commerce. The case of Brown and others v. The State of Maryland, 12 Wheat. 419, is shpposed by the plaintiff to be an authority exactly in his favor; and that the principles decided require this court to pronounce the law under consideration unconstitutional and void. The law of Maryland required “importers of foreign articles or commodities, of dry goods, wares, or merchandise, by bulk or package, etc., and other persons selling the same by wholesale, bale, or package, etc., before they were authorized to sell, to take out a license, etc., for which they should pay fifty dollars.” 'The penalty and forfeiture were the amount of the license, and one hundred dollars to-be recovered by indictment. The provisions of. this law were held to be in conflict with the powers vested in the ^Congress by the United States, as well as that article of the constitution which inhibits a state from laying any duties upon imports. The court held the principle to be sound, that a grant to import included a power to sell, subject to some limitation, and that the article imported, as well as the importer, were constitutionally protected from local legislation. “ Any penalty,” says the court, “ inflicted on the importer, for selling the article in his character of importer, must be in opposition to the act of Congress which authorizes importation. Any charge on the introduction and incorporation of the articles into, and with the mass of property in the couutry, must be hostile to the powers given to Congress to regulate commerce, since an essential part of- that regulation, and the principal object of it, is to prescribe the regular means of accomplishing that introduction and incorporation.”. The powers of a state to tax its own citizens, or their property within its jurisdiction, are admitted to be sacred; but these,can not be exercised so as to obstruct the operations of an act of Congress, or defeat their constitutional right to regulate commerce. The correctness of these views is evident from 'the whole tenor of the instrument, which establishes the fundamental principles of the government, and from the very nature of our complex system: Without a recognition of them, the portions of sovereignty which have been given and retained by the general and state governments could not exist. The one or the other would sink for want of support, and a consolidation or separation would be the necessary result. The powers of the governments approach each other, until they are only separated by delicate shades and almost imperceptible gradations. It is difficult to trace with certainty, but yet it is hoped not impossible, the line that separates the constitutional powers of the general and state governments. The constitution has not, in all cases, exactly marked the termination of the one nor the commencement of the other. Perhaps no skill in the science of government oould, in all cases, fix the line of limitation. We have it from the highest judicial authority, that should the general and state governments, in the exercise of their powers, come in conflict, “that which is not supreme must yield to that which is supreme.” The Supreme Court of the United States felt and acknowledged the difficulty of establishing a rule universal *in its application, a rule which should fix the boundary between the constitutional powers of the general and state governments, upon the subject of -taxation. They have not determined the exact point where the operations of the grant to the importer shall cease, upon the. articles imported, to protect them from state imposition.

A rule, however, is suggested, and applied more than once in .the decision of the court, which, with great deference, is deemed too vague and indefinite, even for practical purposes, and can not be adopted as a guide in judicial determinations. It is this, “when the importer has so acted upon the thing imported, that it has become incorporated and mixed up with the mass of property in the country, it has, perhaps, lost its distinctive character as an import, .and has become subject to the taxing power of the state.” This rule seems to have been suggested from that similar principle, that if one mingle his money with another’s, so that the proportions can not be distinguished in the mass, the other shall have the whole. In some states, and respecting some articles, this rule-might operate with justness and propriety ; but by far the greaterproportion of foreign commodities, and those from, other states, are never mixed with the mass of property so as to lose their identity. This is peculiarly the ease in the agricultural states. The stock of our merchants consists, almost exclusively, of articles from other states and countries, which can as well be discovered singly as in packages, bales, or trunks. The brandy of France, or the wine of Germany or Spain, can be as easily distinguished in bottles as in pipes. It would seem a task not much less difficult, to discover what should be considered an incorporation, and mixing up of property, so as to admit the laying of a tax upon the articles by the state, as it was before to find the limits of local legislation, under the constitution. The power of taxing property within its jurisdiction by a state, although the same has been subjected to imposts by the laws of the United States, seems never to have been directly denied by the bar or court. Its exercise, after the right acquired under the laws of the .general government has ceased, is required by principles of self-preservation, and is acknowledged to be consistent with a correct construction of the constitution. The difficulty is not in the power, but in the extent of *its application, so as not to come in collision with-the co-ordinate authority of the general government. It is conceded that the revenue arising from foreign commerce belongs exclusively to the United States, as well as the power to regulate intercourse with foreign nations. Tho law of a state which would interfere with either would be unconstitutional and void. The right to make their own regulations concerning them is essential to the existence of the federal government, and the constitution, has declared it in terms which leaves little to be supplied by inference or implication. If the acts of the legislature, under consideration,-came in conflict with the powers of Congress to lay duties upon imports, to regulate commerce with foreign nations* and among, the states, or any other secured by the constitution, the court, without hesitation, would declare them inoperative and void.

The laws in question impose a tax upon the capital of merchants,, without any discrimination between wholesale and retail dealers,, except the classes would make such discrimination. This tax can not be admitted to come within the idea of a duty upon imports, nor can it be discovered that its operations can interfere with the* powers of Congress to regulate commerce. It is purely a police-regulation, affecting the consumer alone. The amount of tax upon the capital thus employed bears a just proportion to that assessed upon land and almost every species of property within the state. It can no more affect importations or interfere with commercial regulations by the United States than a tax upon land or bullocks-could be deemed a duty upon exports. The state power to tax must be taken with the limitation only that it be not an impost» or duty upon imports or exports, and that it does not conflict with the powers of Congress to regulate commerce.

It is, with these exceptions, an unlimited, sovereign power. The legitimate exercise of this authority is one thing; the abuse of it is a different question. If a state, in a fit of political phronsy, should lose sight of its duty, as a constituent part of the general government, and levy a tax upon the capital of merchants, so as to amount to a prohibition of foreign commodities, and destroy the revenue of the general government,- this would be most clearly an interference with *the powers of Congress to regulate commerce, and such a law would not only be repugnant to the principles of the constitution, but void, on the grounds that it would be a manifest act of tyranny and oppression.

This is not, however, the character of the tax under consideration, nor has it the remotest tendency to bring about such a result. So, an insupportable tax upon bullocks, or the land upon which they must be grazed, may be imposed by a state so as wholly to prevent the exportation oí beef. This possible abuse of power ought not to furnish a constitutional objection to its being exercised in a just and reasonable manner, for the legitimate ends and objects of the local governments, and the maintenance of that part of the sovereign power with which they are intrusted by the constitution. When such unjust and oppressive measures shall be adopted in state legislation, as their powers are not supreme, “they must yield to that which is supreme.” The highest judicial tribunal in the Union must determine this, and they will fearlessly determine it, when such a law of the state shall be presented. The judicial department of the government, as cases arise, must determine the line between the municipal powers of the states, and the commercial powers of the Union.

No doubt the limited powers of the states may have occasionally, through inadvertence, or temporary popular excitement, been transcended in legislation; but the power exists with the judiciary to prevent the effects of these dangerous collisions, and it is on the •exercise, the independent and fearless exercise, of this power, that the government has depended for its continuance, and must depend, for its perpetuity. To pronounce these laws unconstitutional, because by possibility they may, in some very remote degree, affect importations, or the operations of commerce, would be to yield the principle that a state has not a right to tax property within its jurisdiction for its own support. It would be surrendering the portion of sovereignty reserved at the formation of the constitution, and acquiescing in becoming a consolidated government. These laws impose no impost or duty upon imports. The tax is upon capital, just and equitable, upon abstract principles; indispensably necessary to be laid for the credit, faith, and interest of the state; conflicting with no ^provision of the constitution or law of Congress; and interfering with no power to regulate commerce, either foreign or among the states. It is believed these views do not oppose any principle decided by the Supreme Court of the United States, but, on the contrary, are sanctioned by the general admissions and reasons, where similar points have been under discussion and consideration. To preserve the balance between the powers of the general and state governments, the end and object of both must be kept in view. Mist, if not darkness, is upon the line which marks the division of the sovereign power.

The rights of both must depend upon the patriotism and good sense of the citizens, and the mutual forbearance of their agents, as much as upon any distinct, visible constitutional boundary.

The demurrer is sustained.


author: By the Court:

text:
    Lessee of C. Smith and others v. George W. Jones.
    A will, made in May, 1811; operated as a devise of a lot, which the devisor was in possession of, at the time of making the will, on a verbal contract of purchase, and for which he subsequently took a deed in his lifetime.
    This was a motion for a new trial, in an action of ejectment, the' jury having, Under the instruction of the court, returned a verdict for the defendant. The ease was this : The lessors of the plaintiff claimed, as heirs at law to their father, a lot in Cincinnati, conveyed to him by Joel Williams, on May 26,1812. The defendants claimed, under a will duly executed, dated July 25, 1811. The defendant also gave evidence that the testator, Smith, was in possession of the lot, under a verbal contract of purchase, and commenced improvements upon it anterior to July, 1811, the date of .the will. It was also in proof, that on September 9, 1811, the testator entered into a written agreement with Joel Williams for the purchase of the lot, in completion of which the deed was subsequently made.
    The court instructed the jury that if they were satisfied, from the proof, that the testator was in possession, under a verbal contract of purchase, at the time of making the will, the devise was operative, and the defendant entitled to a *verdict. Under this instruction the jury found for the defendant, adding that they found that the testator was in possession, upon a verbal contract of purchase, when the will was .made. The motion for a new trial was made on the ground that the court erred in the instruction given, and the decision of this motion was adjourned here by the Supreme Court in Hamilton county.
    Benham and Finley, for plaintiff:
    Two points arise out of this case: 1. Whether a devise of the testator’s real estate, which he holds by verbal contract merely, at the time of executing his will, is valid?
    2. If the will does operate to pass lands, held merely by parol contract, and subsequently to executing the will the testator acquires legal title to the premises, and dies, does the legal title pass to the devisee, or does it descend to the heir at law, in trust for the devisee?
    As to the first point,it is a well-settled principle, that the devisor should be seized in fee at the time of making his will. Rep. 246. If, therefore, the testator demise all his lands, and afterward purchase other lands, and die without making a new will, or republishing his former will, such aftpr-purehased lands will not pass; and this rule is so rigid that a devise will not pass lands specifically mentioned in it, and intended to be devised. Roberts on Wills, 227; 9 Johns. 312; 3 Johns. Ch. 307, 362; 5 Munf. 272, 342 ; 8 Cranch, 66. In the case of Arthur v. Bokenham, Rep. 750, Lord Chief Justice Trevor lays down the doctrine in the broadest terms, that if the devisor was not owner of the land when the will was made it did not pass.
    In the case of Harwood, Coup. 90, it is laid down “that a devise is an appointment of particular lands to a particular devisee, and is considered as being in the nature of a conveyance, by way of appointment; upon which principle it is, that no man can devise lands which he has not at the date of such conveyance; and this principle does not turn upon the construction of the statute of Henry VIII., which says “ that any person having lands, etc., may devise, for the same rule held before the statute, where lands were devisable by custom. It is upon the same principle there have been ^revocations determined contrary to the intent of the testator.” The ease of Acale v. Roberts, 3 Burr. 1457, recognizes the same principles.
    The testator in the present case having a mere naked possession of the premises at the time of making his will, had no title, either in law or equity, on which the devise could operate, for it can not •be contended that a mere verbal contract for lands confers any title, even if the grantee should take possession under such contract, unless he should have made extensive improvements, paid the purchase money, etc., which does not appear from the verdict to have been the case; nor was it necessary according to the charge of the court they should so find.
    The testator having subsequently to the demise, articled to purchase the premises, and then acquired the legal title, can not extend the demise back by relation to embrace the land; because relation never operates to make an act good which was void for defect of power. Vent. 304; 3 Rep. 29.
    It is admitted that when lands contracted for are devised, such devise will be held good in equity. But there must be express articles, or a positive agreement, binding within the statute of frauds, entered into and completed before the execution of the will; otherwise the estate will not pass. Longford v. Pitt, 2 P. Wms.
    But it is contended by the defendant that, by the statute in force at the time of making the will, the land passed by it, although acquired subsequent to its execution. The statute then in force wa'S taken from the Virginia code, and authorized every person aged twenty-one years, etc., “ at his will and pleasure, by last will and testament in writing, to devise all the estate, right, title, and interest' in possession, reversion, or remainder, which he hath, or at the time of his death shall have, of, in, or to lands,” etc. But in order that lands acquired after the date of the will may pass by it under this statute, it is necessary that the intention of the testator to pass them should clearly appear on the face of the will. 3 V. C. 66. The court in that case say, “that the rule in England, as well as Yirginia, at the time of the passage of the law, was, that, a will as to land speaks at the date of it; and as to personal estate 'speaks at the time of the testator’s death. The law created no-new; or different rule of construction, *but merely gave a power to the testator to devise lands which he might possess, or be entitled to at the time of his death, if it should be his pleasure to do So. The presumption is, that the testator means to confine-his bequest to land to which he is then entitled; and this presumption can only be overruled by words clearly showing a contrary intention.”
    In the case of Hamersby v.-, 3 Call, 289, it is said that-the intention to pass after-acquired lands must appear by expressions applicable to that kind of property.
    Pox, for defendant:
    The first question presented by the verdict is, whether a devise, made of real estate, on July 25, 1811, by a man who then had only an equitable estate, but who afterward obtained the legal title before he died, will carry such a title to the devisees, and those-claiming under them, as will bar a recovery, by the heirs at law of the devisor.
    The statute in force at the date of this will may be found in vol. viii. 149. By the provisions of this act, a man “ may devise all the estate, right, title, and interest in possession, reversion, or remainder, which he hath, or at the time of his death shall have, of, in, or to lands, tenements,” etc. From the plain reading of this, act, it appears to me perfectly clear that the will made in this instance passed not only what interest Smith had at the making of the will, but, also, all such interest, as, at the time of his death, he-should have.

    The statute is differently worded from the act of 32 Henry VIII, cap. 1. This difference of phraseology must produce a different construction of the act I admit it to be well settled in England,. that a devise of land passes only such land as the devisor had at the time of making the will; in other words, that lands acquired subsequent to the making of the will do not pass by the will. The law is otherwise, however, even in England, with respect to per.sonal property. The will, it is said, speaks from the time of making, so far as real estate is concerned; and it speaks only from the death of the devisor in cases of personalty. Whether the reasons given for the distinction are sound, or unsound, is not very material. It is sufficient to say that the statute of Henry Till. *does not authorize a person to devise lands which he hath, •or, at the time of his death, may have. The statute of Ohio, in force at the making of this-will, did authorize such a devise. And as such a devise is held good in England, so far as personal estate is concerned, I can see no reason why the same construction should mot be given to a devise of real estate where the statute authorizes such a will to be made. If the devise was confined to a particular piece of real estate, subsequently acquired land could not .pass, because it would be evident that such could not have been the testator’s intention. But where a man devises all his p'roperty, without designating any particular piece, and the law says he may devise, not only what he has, but all which at the time of his death he may have, we must construe the will to cover all the land he .may have at the time of his death.
    But if the court should be of opinion that the will now before the court would not pass lands purchased by Charles Smith, after making his will, still I contend that inasmuch as Smith had purchased this land before making his will, he had at the time of making the will an interest, which he passed by the will, and that the legal title, subsequently acquired, related back to the time of ,the original purchase.
    It will not be denied, I presume, that an equitable title may be devised. The statute enables a man to devise any possible interest which he may have at the time of making his will, either in possession, reversion, or remainder.
    Tho English and American authorities are also full and satisfactory upon the effect of devising an equitable estate. 10 Vesey. 613, 614; 2 Ch. Cas. 144; 1 Id. 39; 3 Johns. Ch. 316. And so far is this doctrine carried, that the devisee is entitled to call upon .the executors to pay the purchase money due on the estate purchased. 10 Ves. 614, 605, 610; 3 Johns. Ch. 316. There are mot many cases to be found at law where this question, has been decided ; there is one very analogous case which, I think, is conclusive upon this case. Prior to the statute of uses, a man having the use, or beneficial interest in an estate, had nothing more than an equitable ostate; and it was decided at law that where a man, having the use only, devised the same, and afterward the statute having passed, it vested the legal title in the cestui que use, who died, and it was held that the devisee had *the legal title vested in him. 1 Roll. Abr. 616, pl. 3. In Bridges v. Duchess of Chandos, 2 Vesey, jr. 429, the lord chancellor, remarking upon this case, says, “ that is exactly the case of an equitable estate devised, and a conveyance taken afterward of the legal estate; and this court was so far from determining without considering what the rule of law would be, that here is the very point dedided by a-court of law.”
    In Selwyn v. Selwyn, 2 Burr. 1135, it appears the father and son executed a bargain and sale to a third person, to make him a tenant to the precipe for suffering a common recovery, the uses of which wore to be for the father for life, remainder to the son in fee. After the writ was sued out, and before the recovery suffered, the son makes a will and devises the land in feo, and dies after the recovery was completed, without altering the will. The question was, whether the will conveyed the land. It is perfectly clear that at the time of making the will the son had only an equity. It is also clear that by the subsequent recovery he was vested with the legal title. The court held that the title to the land passed by the will; and though the court gave no reasons for their decisions, the reporter supposes, “ they considered the whole as one conveyance, which must relate to the date of the bargain and sale; which was perfected, made absolute, and delivered from objections by the subsequent ceremonies.” And Lord Mansfield, in Roe and Norden v. Griffiths, 1 Black. 605, in referring to the case of Selwyn v. Selwyn, places the decision on the same ground.
    So also in the case, of a surrender of a copyhold estate, although the surrenderee has no estate in the premises surrendered until his admission, yet, on being admitted, he is in by relation to the surrender, from which date his admission operates; and in declaring in ejectment he can lay his demise immediately from the surrender. 1 Term, 600.
    The principle, indeed, appears to be universal that where divers. acts go to constitute a conveyance, estate, or thing, the original act is to be preferred, and to this original act all others have relation.
    Thus in Heath and another v. Ross, 12 Johns. 140, a patent was dated December 4, 1810, but did not pass the great seal until the 28th of the same month. During the period ^between the 4th and 28th, a quantity of timber was cut by the defendants, and it was held that no title passed until the patent was delivered, yet after delivery the title related back to the 4th December, and the defendants were held liable.
    So in Jackson v. Dickenson, 15 Johns. 309, a purchase was made .at sheriff’s sale, March 1, and the deed not delivered until March 19, and yet the court held the deed good, by relation, from March 1, and thereby prevented a bill in chancery, filed March 13, from operating as a Us pendens, so as to affect the purchaser by the decree rendered. The court recognize the doctrine distinctly and fully, that “ the time to which the grant is to relate, is the time when the bargain or contract for the sale and purchase of the land was finally concluded between the grantor and grantee.” Id. 316.
    Again, in Demarest and wife v. Wynkoop et al., 3 Johns. Ch. 146, a deed, made nineteen years after a sale, was held to relate back to the purchase.
    The same doctrine is recognized in 7 Mass. 381, and 1 Johns. Cas. 81, 85.
   By the Court:

The statute of Ohio is much more comprehensive in its terms than those of 32 and 34 Henry VIII. “ Every male person aged twenty-one years, or upward, being of sound mind, shall have power at his or her will and pleasure, by last will and testament, to devise all the estate, right, title, and interest, in possession, reversion, or remainder, which he or she hath, or at the time of his or her death shall have, in, or to, lands, tenements, hereditaments, annuities, or rents charged upon, or issuing out of them. 6 Ohio L. 64.

The third section provides for the revocation of wills, in the details of which, an alteration of the estate, after making and publishing the will, is not mentioned.

A prominent feature of the English law is to favor the heir, and prevent disinherison. This has introduced the fixed principle that at the inception of the will a man must be seized of the estate he devises, which should remain unaltered to the time of its consummation by his death. Pow. on Dev. 566. The difference in circumstances has, with us, *led to a difference in legislation, and cases may arise in which our courts may, with great propriety, depart, in their judicial decisions, from those of England, upon questions arising out of wills. The laws of the Various states show that it is the general policy of the government, that estates should not accumulate in families, or succeed in perpetuity. This is universally supposed to be the most effectual way to guard from degeneracy and destruction our free and equal institutions. Notwithstanding this solicitude in favor of the heir which is manifested in the course of decisions in that country, it has been held that when a devise is made in general words, it will carry the estate both in law and equity. 1 Ves. 437. So any contract which a court of equity would enforce on an application for a specific performance, would be sufficient to pass under sweeping words in a will. 1 Ves. 437, 494; Pow. on Dev. 208. But such contract must exist at the time of making the will, because one having no title whatever can devise nothing. 2 P. Wins. 629. It has also been decided that if a man devise all his lands for the payment of his debts, and afterward purchase lands, .although there were no articles of agreement previous to the will, a sale will be decreed of those after-purchased lands. 2 Ch. Cas. 144. It appears to be the settled law in England, that an equity may be devised, and if a deed is not executed- during the life of the testator, the obligor will be held a trustee for the devisor, and may compel an execution of the articles for his benefit. If the testator may pass equitable interests in land, by will, in England, there can be no doubt he may do it under the more comprehensive terms -of our statute. In this case no doubt can exist as to the intention of the testator. The words embrace his whole estate. It is beyond controversy that whatever interest the testator had in this land, when the will was made and published, passed to Agnes Smith, his wife.

The question more difficult, is, whether getting in the legal estate before his death, and after the execution of the will, amounts toa revocation, and whether the legal estate so obtained, passed by the will, or descends to the heir.

In the case of Rex, ex dem. Norden, v. Griffiths and others, it was held that an admittance would refer back to a surrender, being only a completion of it. 4 Burr. 1952.

*In Selwin v. Selwin, 2 Burr. 1131, the principle was decided that the whole of a conveyance shall-be taken together, and the several parts of it shall have relation back to the principal part. S., being seized in fee by indenture of lease and release, conveyed to uses and covenanted to levy a fine. All were adjudged an assurance. 2 Bur. 704. Mr. Justice "Wimot: “He considered these deeds as a covenant to levy a fine, and they- ought, with the fine, to be considered as one and the same assurance.” The same principle was decided in Croke Ja. 643. All the court held that a bargain and sale, and the fine and recovery, are but-one assurance,, and, says the court: “The recovery being executed, which is grounded upon the covenant, is quasi a conveyance to the use abinitio.” 2 Ves. 681. These cases are deemed analogous in principle to the one under consideration. The equity which existed at the time of making the will clearly passed, and the conveyance to the devisor is no change of the estate to work a revocation, but rather a confirmation of it.

For the purpose of protecting the devisee, it would but conform to the authorities to hold the legal • conveyance accepted by the testator, posterior to-the execution of the will, as an act of confirmation on his part, and to consider them both as one assurance. It can not be doubted if the testator had refused to accept the deed in his lifetime, the right would have been complete in the devisee, and she could have compelled a specific performance of the contract. The principles involved in this case were decided in Gist’s Heirs v. Robinet, 3 Bibb, 2. The case was this: Under the royal proclamation of 1763, Thomas Gist, for military services in the war with Great Britain and France, became entitled to a grant of two thousand acres of land, upon his personal application to any of the governors of the colonies of North America. In 1772, before he applied for his claim, he made and published his will, by which he devised to his sister, Anne Gist, one moiety of his whole-estate, both real and personal; the other moiety he gave to Elizar beth Johnson. He afterward obtained a warrant, caused it to be surveyed, and in January, 1780, obtained a grant. He died in 1785, without altering or republishing his will, leaving Nathaniel Gist his heir at law. Anne Gist conveyed to Nathaniel Gist, in-fee, a moiety of the tract of land; Nathaniel died, leaving the lessors of *the plaintiff his heirs at law. The question was, whether Thomas Gist, at the time of making his will, had such an interest, under the proclamation of 1763, as was transmissible by devise. The court lay down the doctrine as incontrovertible that-an equity will pass by a devise. The judgment, which had been, in favor- of the plaintiff for a moiety only, was affirmed. The effect of this decision is, that when an equity existed at the time of publishing the will, and before the testator’s death it was carried into grant, the equitable and legal estate could not bo parted; but the latter attached to the former, so as to vest a complete estate in the devisee. If otherwise, the lessor of the plaintiff, who was heir at law of the testator, must have recovered the whole tract of land instead of the moiety, and turned the devisee of the other moiety to a court of chancery for relief. This defendant is the grantee of the devisee, and if the legal estate has descended to the heir at law of the testator, whatever equities may exist, the plaintiff is entitled to recover in this action. The cases before cited would appear, however, fully to warrant this court in considering the estate complete in the devisee in consequence of the will vesting the equity, and by reason that the legal estate was acquired by the testator before his death. To consider it in any other light would be separating the equitable and legal estate to no purpose, except to produce litigation and expense, or indulge in subtleties which have little to do with reason or justice. The court are therefore of opinion that the acceptance of a deed after the execution of the will is not an ademption of the legacy, and for the purpose of preventing circuity of action, the deed may be attached to the devise and considered but one assurance.

Judgment on the .verdict.


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    *Bank of Chillicothe v. Joseph L. Yoe, Administrator of Jesse McKay.
    Equity can not interfere to aid a bank against a deceased indorser, when there is judgment against the principal and another indorser, although the principal be insolvent, unless it be shown that nothing can be made at law, from the existing judgment, against the indorser.

      *This case was adjourned here for decision from the county of Ross. It was a bill in chancery, and the case made was as follows : On May 19, 1819, Daniel Yanmetre made his promissory note to Jesse McKay, payable at tbe Bank of Chillicotho, by whom and John Creed it was indorsed, and discounted at the bank. In consequence of non-payment it was duly protested, and suit brought, under the statute, against the maker and indorsers jointly. Process was served on Yanmetre and Creed, and returned not served as to McKay. Judgment was rendered againt Yanmetre and Creed, and Yanmetre was deceased and insolvent. McKay was also deceased, no judgment having been rendered against him in his lifetime, and the defendant was his administrator. The object of the bill was to set up the claim, in behalf of the bank, .against the administrator of McKay. It alleged the insolvency •of the principal debtor, Yanmetre, but was silent as to the responsibility of Creed, the other indorser, against whom judgment .at Jaw had been obtained.
    The defendant demurred.
    Eaving, for complainant.
    King, for defendant.
   By the Court :

The question to be decided is, whether, upon a joint and several contract, made by the statute joint as to the suit and judgment, the complainants can go into equity before they have made use of their legal remedies. Section 9 of the act to regulate judicial proceedings, where banks and bankers are parties, authorizes a joint action against the drawers and indorsers, and declares that if the bank shall institute a separate action against drawer and indorser, no costs shall be recovered. The complainants claim they have lost their legal remedy, by the death of McKay, under the *provision of the statute. From anything that appears in the bill, the legal remedy is still perfect as against Creed, the survivor, whose insolvency is not even suggested, and against whom process of executi on has not been taken. The most favorable aspect of the bill places the complainants’ equity upon the restoration upon a naked legal right, lost by the act of God, under our .statutory regulations concerning banks. A court of chancery would probably be open to the complainants, when they shall have exhausted their legal remedies, if a balance still remains due upon the judgment. But the complainants show no present necessity for a decree against the representatives of McKay, nor have they even alleged that such decree would facilitate the collection of their judgment. They came into this court, having, from their own showing, a perfect legal remedy against the survivor, which they have neglected to enforce, without furnishing any excuse whatever for their negligence. They are here as volunteers for one of the indorsers, without showing why the estate of the other should be liable for the payment of their judgment. In this bill the court can not settle the equitable rights of the indorsers, especially as only one of them is made a party. Those who are interested should be left to their own litigation without the interference of strangers. Bill dismissed with costs.


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    David Wade, Treasurer of Hamilton County, for the use of Samuel McHenry, v. Thomas Graham et al.
    Securities of an administrator are liable on tbeir bond, for the proceeds of lands sold by the administrator, under an order of court for the payment of debts.
    This was an action of debt on an administrator’s bond. The facts are thus stated: This suit was brought on the bond of the administrator of Daniel Symmes, executed at the' time of the appointment of the administrator, to recover the amount of a judgment in favor of Samuel McHenry, a creditor of the estate. On the trial before the jury, the plaintiff offered in evidence the proceeds of the real estate of the intestate, sold by the administrator by order of the court, *to which' evidence the defendants objected. The objection was overruled by the court and the evidence admitted, and a verdict given for the plaintiff. For this supposed mistake of law the defendants moved a new trial, and the decision of the motion was adjourned here from the county of Hamilton.

      J. W. Piatt, for plaintiff.
    N. Wright, for defendants.
   By the Court:

The condition of an administrator’s bond is, that he shall faithfully perform all the duties required of him. Section 18 of the act (prescribing the duties of administrators), directs, most explicitly, the distribution of the “ assets,” arising from the sale of real estate by an administrator. .It requires the funeral expenses, and those of the last sickness, with the cost of the administration, tobe paid; secondly, judgments rendered' in the lifetime of the intestate, and lastly, distribution of the residue amongst the creditors. Nothing can be clearer than that the condition of an administrator’s bond was intended to secure, to all interested in the estate, every duty which the law enjoins upon that officer. Certain duties are required of him respecting the distribution of assets arising from the sale of lands; can it be doubted that his bond secures fidelity in the performance of them ? If the terms of the statute, however, left a doubt as to the extent of the liability of the administrator, and his security upon the bond, more than twenty years’ uniform practice and usage have made it cover money arising from the sale of real as well as personal property. It is true, when the court grant an order to sell real estate, they have the power, for the security of heirs and creditors, to require from the administrator what security they may deem proper, respect being had to the value of the estate. When letters of administration are granted, it can not always be known that a necessity exists for the sale of real estate, to discharge the debts of the intestate. The penalty of the bond, therefore, is usually required in double the amount of the personal ^property. This amount is frequently insufficient to cover the assets' arising from the sale of lands; and sométimes the securities become irresponsible for the additional sums. The legislature, contemplating these things, gave a discretionary power to the courts to require what security they.might deem proper, when they granted an order for the sale of real estate. This appears to be a reasonable exposition of the legislature’s intention, and it is the same it has uniformly received in practice. When the penalty of the bond is sufficient, and the obligors have been considered responsible, no other security has been demanded by the courts; when they were not, an .additional bond has been taken before the order of sale granted; the administrator is held liable on his bond to the same extent, for money arising from the sale of real estate as for the proceeds of personal property. The proceeds of the former are, to all intents and purposes, assets as well as the latter. They are both appropriated in the same manner, and when land is turned into money, it is instantaneously assets, according to the legal acceptation of' the term. The case of Truman v. Anderson and others, 11 Mass. 190, has been cited as an authority in point' for the defendant. 'The question submitted in that case was whether the bond of an administratrix was forfeited for her neglect to apply for a license to sell the real estate of her intéstate, for the payment of his debts. This is not the case here. The question to be decided by the court is, whether the administrator and his security are liable for the proceeds of real estate, actually sold, and which came into the hands of the administrator. It will be sufficient to decide the point determined by the Supreme Court of Massachusetts when presented. It clearly does not arise in this case. In deciding the point under consideration, we rely upon our own practice, which has given construction to our statutes, and, it is believed a correct one, according to the principles of sound policy and just reasoning. It is the opinion of the court the condition of an administrator’s bond covers all assets, to the extent of the penalty, at least, whether personal, or arising from the sale of real estate. Motion overruled.

Judgment on the verdict.


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    *Lessee of Goforth v. N. Longworth.
    In a case ox sale of lands.of decedent l?y executors or administrators, the record must show an order of sale by the court, or the sale is void.
    This was an ejectment adjourned here for decision from Hamilton county. The plaintiff claimed as heir at law of Aaron Go-forth, who died legally seized of the lot in controversy, being No. 161, in Cincinnati. The seizin of the ancestor and the heirship were admitted. The defendant claimed under an alleged sale and conveyance, made by the administrators of A. Goforth, of the lot in question, for the payment of debts. In support of this claim he gave in evidence, a deed from the administrators, dated January 26, 1814, which recited that the sale was made by the administrators, under an order of court. To sustain this deed, the defendant further gave in evidence an order of court, dated of August term, 1813, in these words: “Petition and motion made by the administrators of A. Goforth, deceased, for the sale of real estate. Account or statement exhibted to court, who appoint Joseph Carpenter, Ethan Stone, and Richard Fosdiek, appraisers,” etc.
    An appraisement made by the persons named, of real estate, and returned to court, including the lot in dispute, was also given in evidence, which was dated December 11,1813. An account of sales, as made by the administrators, dated -December 15, 1813, was in proof, in which the lot 161 was set down as sold December 14, 1813. This account was marked filed as of April 14, 1814. No other order of court, in the premises, was given in evidence, except the one before quoted. The question submitted for decision was,, whether upon the proofs exhibited, the sale, by the administrators, was valid.
    Caswell and Starr, for the plaintiff.
    N. Wright, for defendant.
   By the Court :

It is now well settled that courts give a liberal construction to statutes authorizing sales of real estate by executors or administrators. Public policy requires that all reasonable *presumptions should be made in support of such sales, especially respecting matters in pais. The number of titles thus derived, and the too frequent inaccuracy of clerks and others concerned in effecting these sales, render this necessary. But where the statute is explicit and unambiguous, in its terms, the court is not authorized to dispense with the formalities and modes of proceeding prescribed, or to supply them by presumptions and constructions.

The sale, relied upon by the defendant, was made under the-statute of February 10, 1810. Section 32 provides “that when it shall be made appear to the satisfaction of the court that it is necessary to sell real property for the discharge of debts, as Specified in the preceding section, they shall appoint three disinterested mentó view the lands, tenements, or hereditaments, so to be sold, and return to court under oath, a statement of the value thereof, after which the court shall direct the executor or executors, administrator or administrators, to proceed to sell, either the whole or a part, as they may. think proper, of such real estate, after giving notice,” etc.

The provisions here cited require that certain acts shall be done by the court of common pleas, and these constitute the foundation upon which the sale of a deceased person’s real estate by his personal representative must rest. That these acts were done by the court must be evidenced by the record of their proceedings. The law requires that the court shall appoint valuers, who shall value the estate, and make a return of the valuation, “ after which the: court shall direct ” the whole or a part to be sold, “ as they may think proper.” This act, to be performed by the court, is essentially of a judicial character. A judgment is tó be made up and pronounced ; and this judgment is the foundation of the administrator’s or executor’s power to sell. Were such a judgment, order,, or direction produced, it would be correct to infer that it was rendered- or made upon a proper state of facts. The appointment and return of the valuers, with other preliminary proceedings, might be inferred or presumed. But the judgment or direction-stands upon a different principle. It can only exist as matter of record, and can in no other mode be proven.

No transcript of any such record is produced; nor anything more than the order appointing the valuers, which in *the nature of things, preceded the direction, or order to sell; because between that appointment, and the final direction to sell, the valuers were to perform the duties required of them by law. The counsel, aware oí the necessity of adducing record evidence of this order, or judgment, attempt to deduce it from the “et cetera ” at the end of the order appointing valuers. But such an interpretation of the “ et cetera,” in the case before us, is wholly inadmissible. Lord Coke himself, whose commentary upon the “ et cetera ” of Littleton is a standing jest with the profession, never could have thought'that matter subsequent, and that the final decision of the court in the case could be included in an “ et cetera ” attached to the incipient order in the proceedings.

The statutory provisions in respect to cases of sales of real estate, by the personal representative, are intended to protect the interests of heirs and creditors, as well as that of’ purchasers. The power of the personal representative over the real estate oí the deceased is derivative and limited. It is derived from the act oí the court, in conformity to the law. The discretion of the court must be exercised and declared upon the subject, and, without this, the act of the administrator or executor is void, because based upon no legal foundation. It is a case of acting under a power where no power is conferred. The act must therefore be void. In this case there is the proper proof that valuers were appointed and made a return. These steps prepared the subject for the court to act upon finally. But there is no evidence that they did finally act upon it. On the contrary, there are facts stated that warrant a contrary conclusion. The appraisement is dated December 11,1813, and the administrators report the sale as made the 14th of the same month. In this period of time it was impossible for the court to' act, and then for the administrator to give the legal notice of sale. It seems, therefore, to be an almost necessary conclusion, that the administrators did not consider an order or direction to sell, founded upon the return of the valuers, as necessary to invest them with the power to effect a sale.» We can not otherwise account for their appointing and advertising a sale, even before the valuation was made, and, of consequence, before any power to sell could be vested in them. They mistook their duty and their powers. We might as well attempt to 182]' ^sustain a sheriff’s deed for land sold on execution where the pleadings were found, but no judgment, as to sustain the sale by the administrators, in this case. To divest the heirs of their estate,'by the sale of the personal representative, that sale must be made in substantial compliance with the statute. This must appear on the record, or arise on a just implication from it. Here we have neither. The judgment must be for the plaintiff.