author: Hitchcock, J. Read, J.,’

text:
    In Bank,
    Dec. Term, 1846.
    James Robb vs. Lessee of William and James F. Irwin.
    Under the act of 182defining the duties of executors and administrators, an order for the.sale of real estate is not void where a guardian ad litem was appointed for the infant defendants, who appeared and answered for them, although there is no proof that the infants were served with process.
    This case is brought before this Court by Writ ok Error to the Court of Common Pleas of Hamilton county.
    The action was an action of ejectment, for certain premises described in the declaration. Robb, the tenant in possession, appeared in Court, entered into the common consent rule, and filed the plea of not-guilty.
    At the November term, the case was submitted to the Court for determination, and upon hearing, the Court found the issue joined in favor of the then plaintiff, and entered a judgment accordingly.
    The then defendant, now plaintiff in error, thereupon tendered a bill of exceptions, which was signed and sealed by the "Judges of the Court, and is made part of the record, which is as follows :
    “ Be it remembered that, on the trial of this cause, the following facts were agreed upon, or proved, to-wit:
    . “ That William Irwin, the ancestor of the lessors of the plaintiff, died in Cincinnati, in the year 1824, seized of the several tracts of land, lying in sections 21 and 22, township 3, fractional range 2, designated, on the Lafayette Bank’s plan of subdivision of the Clifton Farm, as lots 3, 4, 5, 6, and 7; except so much thereof, as lies in section 22, but without the lines of the tract known as the Irwin Mill tract; to which part of said lots the lessors of the plaintiff claim no title.
    “That said land descended to the heirs of said Irwin, namely, Archibald Irwin and Louisa Wiseman, formerly Louisa Irwin, adults, and William Irwin, James F. Irwin, and William Irwin Sloo, minors. That William I. Sloo died intestate, and without issue, prior to the commencement of the suit, and that his interest and estate in said land, if any, descended to his coheirs, all of whom resided in Cincinnati.
    “ That the said land was encumbered with divers mortgages, judgments, and debts, as was the whole estate of said William Irwin, deceased; and that letters of administration upon said estate were granted to Lewis Whiteman, husband of said Louisa Wiseman, and Thomas D. Carnea!; and said administrators were duly qualified according to law.
    “ That William Irwin, one of the lessors of the plaintiff, was born on the 30th of January, 1806, and James Irwin, the other lessor, was born in April, 1808; and that Samuel Findlay, appointed guardian ad litem, as appears by the record hereinafter set out, was first cousin to said lessors of the plaintiff, and intimate in their family.
    “That one hundred and twenty acres of land in section 21, and eighty acres of land in section 22, embracing the whole of the land in controversy, were conveyed to Nicholas Longworth, by said Lewis Wiseman and Thomas D. Carneal, administrators as aforesaid, by several deeds, one dated 12th Nov. 1830, the other dated 23d April, 1834; which deeds were duly executed and acknowledged, and were valid and sufficient, provided the said administrators had authority to sell and convey said lands.
    “ That the title of said Longworth to the land in controversy, being part of said tracts conveyed to him by said administrators; had come to and was vested in said defendant, James Robb, who was in possession thereof, through divers intermediate conveyances.
    “ To establish the authority of said administrators to sell and convey said lands, the defendant offered to give in evidence a record of the Court of Common Pleas, Hamilton county, Ohio. And it was admitted that the statement or certificate of the clerk attached to said record, was true and sufficient; but the plaintiffs objected to the introduction of said record in evidence, which objection was sustained by thé Court, and said record was accordingly excluded; to which decision of said Court, and to the exclusion of said record, the said defendant excepted, and prayed that this, his bill of exceptions, may be allowed, and signed, and sealed, and made part of the record in this, case, which is done accordingly.
    “ The record, a copy of which is made a part of the bill of exceptions, and which was rejected by the Court, shows, that at the November term of the Court of Common Pleas of Hamilton county, 1826, Wiseman and Carneal, the administrators of William Irwin, presented .a petition to the Court, as ,a court of probate, stating that the estate, of Irwin was greatly insolvent; that the personal property had been exhausted; that it was necessary to sell the real estate for the satisfaction1 of debts; and praying' an order of Court accordingly. The petitioners further stated, that, the widow, of the said William Irwin had deceased,, and that his surviving heirs at law were Louisa J. Wiseman, wife of Lewis Wiseman, Archibald Irwin, William Irwin, and James F. Irwin, his children, and William Irwin Sloo, a grandchild. That the said Louisa Wiseman, and Archibald Irwin, were of full age, and the other heirs infants; . and they prayed that the said heirs might be made defendants, the adults by themselves, and the infants by their guardians. They prayed process, &c.”
    At the same term of the Court, Samuel Findláy was appointed guardian ad litem for the infant defendants.
    On the first day of December, and during the same term of the Court, acknowledgment of .service was entered on .said petition as follows:
    “We acknowledge due and legal service of the foregoing / petition, with a release of all errors and defects as to service. ‘ We admit the facts set forth to be correct and true, and sub- *• mit the whole matters embraced and referred to in said peti-
      ‘ tion to the Court, for such order or orders in the premises as ‘ the Court aforesaid may deem fit, expedient and proper.
    “L. Wiseman,
    “ A. Irwin, '
    ■ “ Louisa J. Irwin.
    “ Samuel Findlay,
    c Guardian ad litem for William Irwin, James Irwin, and ‘ William Irwin Sloo, minor heirs.”

    After this acknowledgment of service, regular proceedings were had according to the statute, which resulted in an order of sale, 'and the actual sale of the premises in controversy.
    The only error assigned and relied upon is, that the Court erred in deciding that the copy of record offered in evidence by the plaintiff in error, was not competent, as tending to establish his title. ■

      Chase 8f Ball, and King &/■ Anderson, for Plaintiff in error, made the following points:
    An order of the Court of. Common Pleas, in Ohio, for the sale of real estate of a decedent, upon a petition for sale by administrators, to which minor heirs are made defendants, by the appointment of a guardian ad litem, who appears and answers in their behalf, is valid, and a, sale regularly made under such an order, and carried into deed, passes the title of the decedent.
    Under the act of 1824, which requires heirs to be made defendants to petitions by administrators for the sale of real estate, but prescribes no mode in which they shall be made defendants, the selection of the mode was left to the discretion of the Court, and it was competent, therefore, for the Court to adopt the mode which was adopted in this case.
    Under that act, the prayer in the petition that the heirs might be made defendants, the adults by themselves, the minors by their guardians, for proper process to bring the defendants into Court, the appointment of a guardian ad litem, a service upon him, as such, and his acknowledgment thereof,- — these, together, constitute a valid making of defendants, as required therein. There was no other prerequisite to the jurisdiction of the Court of Common Pleas than the exercise of their judgment upon the matters set forth in the petition; and having, by the exercise of that judgment, acquired jurisdiction, the correctness of its subsequent proceedings cannot be impeached collaterally. The order of sale is not void, but, at the most, only voidable.
    The Court of Common Pleas, in proceedings under that act, to subject the real estate of decedents to the satisfaction of their debts, acted as a court of general, and not as a court of special and limited jurisdiction.
    The proceedings of an administrator to obtain an order of sale, under that act, were substantially proceedings in rem; or, if adversary in the least degree, it was only as between the rep» resentatives of the different classes of the decedent’s estate, and not between the creditors, and not as between the creditors and either of them.

      Carry Russell, for Defendants in error, made the following points:
    First: An act authorizing a special and summary proceeding; to subject lands to sale for payment of the alledged debts of the owners’ ancestor, and requiring such owner to be made defendant in such proceedings, can only be complied with by a reasonable citation of such owner.
    Second: In adversary proceedings, the party to be affected must have his day in Court. The proceedings are utterly void if there be no jurisdiction of the person.
    Where a statute requires the owner of land to be made defendant, to an application for an order to sell the same, without directing how he shall be cited to appear and defend, the Court cannot order a writ of summons to be served on the Clerk of the Court, or on a bystander, and thereupon proceed to trial and judgment.

      The fact that the owner might have casually heard of the proceedings, is unimportant.
    •, If the Court, believing that no notice to the owner is necessary, proceed to appoint some person to defend for him, and thereupon make an order of sale, such order is void, and not merely erroneous.
    Third: To make a minor a defendant to a judicial proceeding, he or his guardian must be served with process, or the mirior must be otherwise notified, in the same manner as an adult, to appear.
    The Court cannot acquire jurisdiction over the person of a minor, by appointing a stranger to act for him.
    Neither courts of common law jurisdiction, nor courts of special and limited jurisdiction, can divest the estate of minors, without citing them to appear.
    And even the courts of chancery, in this State,' are not the guardians of minors, and cannot act against them on ex parte applications.
    Even if the Court of Common Pleas could, without first obtaining jurisdiction over the person, appoint a guardian for minors to defend a suit, whenever they could appoint a general guardian without citing such minors, the appointment in the present case would be void, because the lessors of the plaintiff were above the age of fourteen years when the appointment was made.
    Even if the Court of Common Pleas might act for or against minors without citing them, the power would cease with the minority; and order of sale made afterwads, without citing the adult owner to show cause, would be void.
    Fourth: A practice, for some time in some parts of the State, to adjudicate without citing the party to be affected, will not render the judgment binding on such party.
    Fifth: The jurisdiction of the Court of Common Pleas to order the sale of a decedent’s lands, must appear by the record, or be proved by the party claiming title under such order.

      The Court of Common Pleas is a court of special and limited jurisdiction when acting under the special power given by statute, to summarily order sales of lands to pay debts.
    When the record is required by statute to set forth the process, it cannot be presumed, where the record is silent, that there was a writ or other process, or notification in lieu thereof.
    Sixth : The want of jurisdiction may be always proved.
    Such want of jurisdiction is proved by allegations in the record, purporting to show what citation was made, when this is only a citatioif of part of the owners.
    This is especially so when the statute law requires the record to show the process.
    The want of jurisdiction is also shown by proof that no process, or notice, is on file amongst the papers in the cause.
   Hitchcock, J.

From the record in this case it is apparent that there is but one single question for the decision of the Court, and that is, whether the record offered in evidence by the plaintiff in error was a proper and legal item of evidence, taken in connexion with the other testimony in the case, to prove his title to the premises in controversy. The title under which- he claimed was derived from an administrator’s sale, and in order to sustain that sale it became necessary to show that the administrator had power to sell... If the proceedings set forth in the record are legal, the power was conferred. It is admitted that the proceedings were regular, provided the lessors of the defendants in error were parties to them; but it is claimed that they were not parties, inasmuch as it does not appear that they had personal notice of the pendency of the petition. And it not so appearing it is. assumed that, as to them, the proceedings are utterly null and void. This point has been argued at great length, and with much ability, by the gentlemen concerned as counsel, and the exertions which they have made manifest that they consider the question as one of no ordinary importance. And it is one, unquestionably, of the first importance, for no one can tell how many millions of property depend upon its determination.

Under such circumstances it is the duty of the Court to proceed with caution. Although if these proceedings are' void we should not hesitate so to decide, still, if they are merely irregular, and the Court in which they were had had jurisdiction, they must be sustained. In truth, the whole matter resolves itself into this question — whether the Court ordering the sale had jurisdiction. If it had, its proceedings and orders cannot be impeached collaterally, however informal they may have been; if it had not jurisdiction, then no matter how technically correct the proceedings may be, they are void.

From the year 1795 to the present time, except for the period from 1805 to 1808, there has been no time but that, in the territory now constituting the State of Ohio, the real estate of a deceased person could, upon failure of personal assets, be appropriated to the payment of his debts, in the regular course of administration. Lands descending are, and ever have been, with the aforesaid exception, chargeable in the hands of the heir with the debts of the ancestor. The only difference as to the mode of disposition between real and personal estate is, that the law makes it the duty of the administrator to inventory, appraise and sell the latter one, while he must have an express order of the court before he can dispose of the other. And this order is granted only upon petition filed by him, showing that such sale is necessary for the payment of debts. Previous to 1824 all that was neccessary was to file the petition and make proof that such sale was necessary. It was an ex parte proceeding. This legislation is characterized by the counsel of the defendant in error as having been “ disgraceful.” Why disgraceful, is not readily perceived. It might be so considered in a country where land is held to be too sacred to be appropriated to the payment of debts ■— where heirs are preferred to creditors — where the ruling principle is, to keep the realty in the family for the sake of continuing hereditary distinctions. But it. cannot be so considered in this State, where the rights of the heir are subordinate to those of the creditor — where lands descend to the heir, charged with the debts of the ancestor — where a man is required to be just before he is generous. Our system requires that the entire property of a man, except such as is exempted from execution, shall be a fund for the payment, of his debts; and under this system I do not see that any particular disgrace could attach to that- legislation which should require all the property, both real and personal, to be appropriated, without judicial proceedings against heirs or legatees. At any rate such seems to have been the policy of the law, and such the opinion of those who legislated for the State previous to 1824.

Let this be as it may, however, whether judicious or not, previous to 1S24, proceedings before the probate court, to procure an order for the sale of a decedent’s lands, were entirely ex parte. Such was the law; and it cannot be questioned but that under that law, upon the filing of the petition, the Court had jurisdiction of the subject matter. It was. a proceeding strictly and purely in rem. It has ever been so considered by. this Court, and we have uniformly held, that where there was a petition and order of sale, such order could not be collaterally impeached; that it was conclusive, notwithstanding any irregularities. And we have so held, not only as a principle of law, but as a principle of policy, believing that the more secure the titles under such sales could be made, the greater, would be the price offered by purchasers. Sales of this description have always béen classed with judicial sales, and, in their examinations, the sarnie principles have been applied to the one as the other. Not only so, but under the law previous to 1824, it was held, that the decision of the Court of Common Pleas was final upon the subject, and could not be reviewed in this.Cour-t, either upon writ of error or certiorari. Such were the principles recognized by the Court in the case of Ludlow’s Heirs v. Johnson, in which it was held, that the propriety of an order made by a court having jurisdiction, could not be collaterally inquired into; 3 Ohio Rep. 553. True, in that case, the Court held the order of sale to be void; but it was not on the ground of irregularity, but upon the ground that the Court had no power to make the order, it being made at a period when there was no law in the State to subject a decedent’s lands to the payment of his debts.

As before stated, previous to 1824, proceedings to subject the real estate of a decedent to sale for the satisfaction of his debt,twere ex parte — were purely and strictly in rem. Nothing further was necessary to give the probate court jurisdiction than to present a petition. How far was a change effected by the law of that year ? The act effecting a change, if any was effected, was the act of 11th February, defining the duties of executors and administrators. By this law, the same principle is recognized as in former enactments upon the same subject, the principle that both the real and personal estate of a decedent are chargeable with his debts, and if it becomes necessary, may be sold for their satisfaction. In this respect, there is no change. The 19th section provides, “ that when the execu- ‘ tors or administrators shall apply to the court, under this act, e for authority to sell the real estate of their testator or intesc tate, the application shall be by petition.” The law was so before. But it is added to which, that is to the petition, “ the lawful heir, or the person having the next estate of inheritance c of the testator or intestate, shall be made defendant.” This is the only substantial change made in the law, so far as the sale of land is concerned. Now, it is apparent that this law leaves the subject matter of the sale of a decedent’s land just where it was before — within the jurisdiction of the Court of Common Pleas as a court of probate. If before, the proceedings were in rem, they are still so; for, although the law requires the heir to be made a defendant, still there can be no action as against him — no judgment, no decree. The only order which can be made by the Court, operates upon the land alone. It may be condemned to be sold.

This Court have before decided, as before remarked, that under the previous statutes, an order of sale, made by the Court of Common Pleas, acting as a court of probate, could not be reviewed in this Court by writ of error or certiorari. But under the law of 1S24, it was held that the proceedings to procure a sale are so far in the nature of adversary suits, as that they may be reviewed - by certiorari. The Court do not, however, speak of such proceedings as being adversary suits, but say that they are “ somewhat ” in the nature of adversary suits. Ewing v. Hollister, 7 Ohio Rep. pt. II, 138.

Although the law of 1824 requires that the heirs of the testator or intestate shall be made defendants to a petition for the sale of land, yet it does not prescribe the manner in which this shall be 'done. Defendant’s counsel insist that it cannot be done except by giving them notice. It is not claimed that this notice must of necessity be by service of a summons or subpoena, as in chancery; but it is insisted that it must be notice of some kind brought home to the defendants. I am aware that, in legal proceedings of an adversary nature, it is important that all who are to be affected by a judgment or decree, should first have a day in court; and that, as a general principle, unless a party has had a day in court, the judgment as to him is-void. But I cannot assent to the position, that he who claims under a judgment or decree, must show, affirmatively, that there has- been this day in court. In courts of general jurisdiction, it will be presumed, until the contrary is shown. In the case now under consideration, there were both adult and infant defendants, and there is no controversy as to the adults. They acknowledged service of the petition. A guardian ad litem acknowledged service for the infants.

It seems to me to be unnecessary in this case to go into an investigation of the question, whether infants can be made parties to a suit in chancery, so as to be bound by a decree without personal service, merely by the appointment and appearance of a guardian ad litem. Much is said in the books upon the subject. But I apprehend it will be found, upon examination, that decrees entered under such circumstances are genérally, if not Universally, holden to be voidable,, not void. .. Such, I have no doubt, is the weight of authority. '. , 1

But the proceeding now under consideration is not a chancery proceeding. It is ,a proceeding in a court of probate, under a statute law of the State — a proceeding to subject the lands of a deceased person to sale for-the payment of his debts —.a proceeding in rem, although the statute requires that the heirs of such deceased person shall be made parties defendant. It is. not a proceeding, like a suit at'.law, to ascertain whether the deceased was or' was not indebted. ■ The authority to ascertain this fact is vested in the executor or administrator. The personal representative may liquidate all claims against the estate. It is his duty to do it, unless,such are presented as to him appear to be unjust, and such claims must be. liquidated by arbitration, or by the judgment of a court-' of competent jurisdiction. With these things the court of probate,'on an application for an order to sell land, have- nothing to do, any further than to ascertain whether there are debts-; whether the personal assets are sufficient to pay those debts; whether it is necessary that all, or any part of the real estate should be sold for their satisfaction. . . . ■.

The statute' having prescribed no mode in which heirs should be made defendants, it would seem to follow that the Court, having to act,, must adopt some practice upon the subject, and whatever that practice might be, it should be sustained, unless it would defeat the obvious meaning of the law. It must be a reasonable practice; such an one as would carry out the intention of the Legislature. In different parts of the State different modes of making defendants wére adopted. ., In some parts of the State,( where all or a part of the heirs were infants, and named in the petition as defendants, which it is believed was' uniformly done, notice was given to the guardian or near relations of the infants; in other parts, the practice was to appoint guardians ad litem, and such guardians were notified, or appeared without notice, and answered. And, in some cases, service of process was made personally upon the infants. In the case of Ewing v. Hollister, 7 Ohio Rep. 138, part II, a question similar, in many respects, to the one now under consideration was presented to this Court. There is this difference, however, in the two cases: That came up, upon certiorari, to the Court of Common Pleas, to reverse an order of that Court directing the sale of an intestate’s land, for the payment of his debts; while the question in this case arises in an attempt to impeach a similar order, collaterally. Both orders were made under the law of 1824. In the case referred to, the whole subject was carefully considered. The facts of that case were, that but two of four persons, claiming to be heirs, were named as defendants in the petition, all being infants. Notice was not given, personally, to any of the defendants, but was given to the guardians of the two named in the petition, and the guardian of the two who were not named, appeared in Court and acknowledged service. It was objected that this was not sufficient, and for the want of personal service on the infants, it was claimed that the proceeding should be reversed. The Court held that, although some kind of notice was requisite under the statute, the same kind of strictness and technicality was not necessary, as in proceedings in chancery; that the object of notice, so far as infants are concerned, was, that the friends of such infants might have an opportunity to protect their rights; that the notice in the case under consideration, having been given to the guardian, it was sufficient; and the order of sale was affirmed.

It seems, to a majority of the Court, that there was nothing wrong in this — that the case was properly decided; and, further, that it is a case in point to sustain the order which is now under consideration. The service of a subpoena upon an infant is, many times, a mere farce, so far as the infant is concerned; as for instance, where the service is made upon an infant in its mother’s arms. The only effect is, and in truth the only object is, to give notice to the friends of the infant. And although it might not be sufficient to give this notice directly to those friends, in an ordinary chancery proceeding, yet it is sufficient, in a statutory proceeding like the present, where the statute itself makes no provision for notice of any kind. In the case now before the Court, all the heirs of the decedents were made defendants; two of them were adults, and three were infants. Their mother, as well as their father, were dead. The adult heirs had notice — they acknowledge it upon the petition.— Samuel Findlay, a cousin and intimate friend of the family, was appointed guardian ad litem, for the infants, and he, too, acknowledged service. It seems to us that this was sufficient. It might have been more technically correct to have issued a summons, and had the same served personally upon the infants, but as it is, all is substantially right. Does any one suppose that the result would have been different had a summons been issued and served ? I apprehend not. It is not even pretended that the debts due from the estate could have been paid without the sale of the land. It is not pretended that any injustice has been done. But these plaintiffs, at this late period, after the land has been appropriated to the payment of their father’s debts, seek to recover it from those who purchased it in good faith, merely upon the pretence of some technical informality in the order of sale.

The case of Adams v. Jeffries, 12 Ohio Rep. 253, has been cited, by counsel, as sustaining the position assumed by defendants in this case. In that case, one in which the validity of an order for the sale of an intestate’s land was called in question, the order was made, so far as the proofs showed, without any petition filed, service of process or any other proceedings anterior to the order of sale. This order, with the subsequent proceedings, was alone produced. The Court held, that this was not sufficient. The case turned upon the question of jurisdiction, the principle being fully recognized that, if the Court had jurisdiction, the order could not be collaterally impeached for any irregularity. But the Court held further, that under the circumstances, there was nothing to show jurisdiction, and therefore, decided the order to be void; entertaining, as I suppose, the opinion, that to confer jurisdiction, there must be a petition filed.

Upon full consideration, a majority of the Court are of opinion that the order of sale offered in evidence on the trial of the case in the Court of Common Pleas, and rejected by that Court, could not be collaterally impeached, and that in rejecting that evidence, error intervened. Whether that order could be reversed upon writ of certiorari, is a different question. But even if the question was so presented, we should have no difficulty in sustaining it.

But suppose there was doubt upon the subject, what course would a sense of duty require us to pursue ? The law of 1824 has had its day, and has passed away. It was superseded by the act of 1831. Although the law itself has been repealed, no man can tell the amount and value of real estate which was acquired under its provisions, while in force. Is it desirable that titles, so acquired, should be defeated, or even put in jeopardy ? If not, how is it to be prevented ? Simply by accepting the rule of cotemporaneous construction. And I hold this to be a safe and a sound rule. Where a statute law receives a construction by the judges constituting the judicial tribunals of the State at the time, or where those tribunals adopt a practice under such statute, such construction and such practice becomes a part of the law., All, taken together, constitute a rule of right and of property. Rights are acquired, property is acquired, in the full confidence that while the statute remains unchanged, the construction and the practice under it will remain unchanged. Surely, the propriety of such construction and practice cannot be questioned after a great lapse of time, and after the statute itself has for many years ceased to operate. And even where a statute, which has received a construction, still remains in force, such construction should not be changed unless for the most obvious and powerful reasons. The reason for this rule is most apparent. If the construction is wrong, the legislative power can apply the remedy. And the remedy, so applied, will have but a prospective effect; but if the law or construction of the law is changed by the Court, .such -change' strikes.at the foundation' of ¿11 rights acquired, under- the 'previous-construction.- .- .. '■ '■ ' 1 ,

If is abhorrent to oiny-feélifigs, that the: Legislature,'should ’ enact a. law;., which, in its. .operation, divests an individual of-rights with, which-he is: vested ;■ for instance,-.take .the lands.-of one and..vest .thern in another.' ' This Court have-held; thát' the:' supreme pówer-pf' ithe,State cannot..do.-this, and,.that so .far. as.-"-, it is attempted,- such'act. is. void; Good v. Zercher, 42 Ohio. Rep. 364. But, although we' deny this power .to the legislative authority, we, in fact; éxercise it ourselves, when; by construction of ancient statutes,[ hte. change the rules [adopted by the • -court's of the1.day,-when those statutes were-.in force. I cannot, consent to do this. We hold that all contracts shall be controlled by the law of the place.where-made, and I would hold . that all transfers of property should be controlled by the law, ;as .understood'and administered when the transfer was made. Any other rule of decision- would • lead to. endless' vexation, doubt, uncertainty and confusion.

" The judgment .of the .Court of. Common Pleas is reversed, and the case remanded for further proceedings. ' .

Read, J.,’

dissenting. I am of .opinion- that notice to the. heirs was necessary to give jurisdiction under the act of 1824, and that no notice was given to the lessors of the plaintiff affording them an .opportunity to resist the application for a sale of their lands. . .

■ A majority of the Court, however, hold that proceedings by administrators to subject lands to the payment of debts .have always been,' and .are now, in.rem, and not of an ádversary character; and that- full jurisdiction -is acquired when the petition is presented, so that all the owners of land; whether minors' or adults, are bound, although not notified. They further hold that- if notice to the heirs was necessary to sustain the proceedings on certiorari; such notice was given to them in the present case by the appointment of a relative to appear for and defend them, and by the apjpearance of other relatives.

Both these propositions are novel and startling. It is expressly enacted by the act of 1824, under which the proceedings now in question were had, “ that the lawful heir, or the £ person having the next estate of inheritance of the testator, £ or intestate, shall be made defendant.”. This Court, in Ewing v. Hollister, 7 Ohio Rep. 142, pt. II, declare that it was unquestionably the intention of the law that those who were interested in the estate should have an opportunity to show that no necessity existed for the sale of the lands ; and this intention would have been entirely defeated upon any other supposition than that notice should be given. And in Lessee of Ewing v. Higby, 7 Ohio Rep. 201, the language of the Court is, “the object of the law was that the heirs should have notice of the application of the administrator for an order to sell their land.” In Adams v. Jeffries, 12 Ohio Rep. 274, the Court say: “ The £ heir has a right to be a party to the proceedings which deprive £ him of his estate, and we are constrained to deny the jurisdic- £ tion of a court which attempts to proceed without him. It £ will be perceived that this opinion affects no proceedings except those since 1824.

It is now said by a majority of the Court that, in this latter case, it was not proved that there was a petition. But the order for sale was put in evidence, and that order mentioned the petition. The Court there refused to presume the jurisdictional fact of notice to the heirs, on the express ground that the proceed ings were those of a court exercising, in this instance, a special and extraordinary jurisdiction conferred by statute, contrary to the course of the common law. The Court specifically decided that an administrator’s sale, made under an order of court since 1824, was void if the heirs were not made parties; and the-proceedings were held to be a nullity on that ground, and not on the ground that there was no petition. . As to similar proceedings before the act of 1824, they were ex parte, but in that year the Legislature, deeming that practice unjust, enacted that the owner of the property should have an opportunity, by resisting the application, to condemn it for alledged debts.

The ancient practice of selling the land in the hands of the heirs, without making them parties, has been complained of by high authority, “'as contrary to the plainest principles of justice 4 Kent’s Com. 422; Gibson, C. J., 13 Serg. and Raw. 14. The Legislature of this State having abolished that practice, we have no right to affirm its validity by calling the proceedings since 1824 “in rem,” merely because there is no judgment for costs, to be made a charge on the defendant himself.

The question is not whether land is too sacred to be appropriated to the payment of debts, but whether the rule that the owner of property shall not be deprived of it without his day in court, guarantied by the law, shall be violated..

The administrator is the legal owner of the personal estate of the decedent, but not of the real estate. As the law has cast the ownership of the latter upon the heir, he is entitled to the benefit of the first and most important rule ill the administration of justice, lying at the foundation of all the rest.

And I will add, that even previous to the passage of the act of 1824 the heir was, by legal implication, (see 1 Hill’s N. Y. Rep. 131,) entitled to his day in court, under the statute authorizing a sale of his lands, those statutes not having expressly deprived him of that right. But as he was deprived of it by judicial construction, it was deemed proper to enact positively, that he should be allowed an opportunity to resist the application. And now this enactment is to be nullified by the decision of this Court.

It is said that the authority to ascertain whether the decedent was indebted is vested in the executor or administrator, who may liquidate all claims against the estate; and it is intimated that a court of probate, on an application for án order to sell, has nothing to do with those matters, and yet it is afterwards said (and correctly) that the court is “ to ascertain whether ‘ there are debts — whether the personal assets are sufficient to £ pay those debts — whether it is necessary that all or any part of c the real estate shall be sold for their satisfaction.” The owner of the real estate is deeply interested in all these questions. He may show that the claims are unfounded when- they are sought to be made a charge'upon his' property — and the decision of the administrator that they are not unjust, only affects the personal estate.

But it is said, that if before the act of 1824 the proceedings were in rem, they are still so, because the order of the Court operates upon the land alone. According to this opinion.a citizen may- be deprived of his land, or any specific portion of his property, without having a day in court, even although the statute expressly requires that he' shall have an opportunity to be heard before his property is condemned. It is ;only nécessary to give a nickname to judicial proceedings to say they are in rem, and the statute law is repealed, and a fundamental right destroyed. According to the opinion just delivered, all proceedings are in rem where the judgment or decree binds only the property in controversy. If that were so, real actions' of ejectment, and suits in chancery for the recovery of land, would not be adversary proceedings, except - as regards costs. Real actions, before the statute of Gloucester ■ allowing costs, were, on this hypothesis, not adversary proceedings. The proposition is alike destitute of reason and authority.

It is á cardinal principle in the administration of justice, that no man can be condemned and divested of his rights until he has had an 'opportunity of being heard; 1 Hill’s N. Y. Rep. 139. And it does not matter whether there is or is not- a,judgment for the costs. U No lawyer will 'controvert the position, ‘ that 'to uphold and give validity to the proceedings of a court, e it must have jurisdiction of the person of the defendant and of ‘ the cause. This principle is applicable to all courts, from the ‘ highest to the lowest;" Mills v. Martin, 19 Johns. Rep. 33. “ It is a fundamental principle of justice, essential to every free £ government, that every citizen shall be maintained in the enc joyment of his liberty and property, unless he has forfeited them by thé,„standing laws of the community, and has had an ‘ opportunity of answering .such charges- as, according to those ‘ laws,.will justify a forfeiture or suspension of them.” Chase v. Hathaway, 14 Mass. Rep. 222.

. That fundamental'-principle .is subverted b.y the opinion just delivered, by a majority of this Court.

It is contended by counsel for plaintiff, that the decision in Grignon’s Lessee v. Astor, 2 Howard’s U. S. Rep., is opposed .to the decision in Adams’ Lessee v. Jeffries, 12 Ohio Rep. 274, in which last cas.e it was decided that notice to the heirs was necessary to give the Court jurisdiction.-

I do not so.understand it; and,it-is'also clear, that the definition of proceedings in rem, just pronounced by.a .majority of this Court, is not affirmed by Judge Baldwin in that, case; .for, so far from saying that proceedings-.are in rem, where the judgment or decree is confined-to the condemnation-of-, a specific piece of property, he says, that Where there are' adversary par-. ties, the Court must have power over the' subject matter and' the parties, but-thát, in'.Michigan,- the administrator' represents the. land, sb 'that. the petitioner himself being the representative: of the land,, the-subject of the petition,'there are no'adversary parties• to • the suit..'"In-this State,-, the administrator.does not represent the lánd, .and a judgment'-against him is not.a lien upon the .lands of the- decedent. Wherever there afe adversa- . ry parties the proceeding is not in rem, and it,is perfectly immaterial whether the judgment binds ' the whole or only a specific-part of the defendant’s-property. It is manifestly wrong to say that a man’s estate may be snatched from him without giving any.notice, where-a statute requires him to be made .a defendant to the- proceedings.' Such- a doctrine cannot be permanently established in a community which has utterly refused to confer absolute power, even on the immediate . representatives of the people.' : : , ■

'.With regard to what hás been said, as to a cotemporaneous ' construction of a statute, I must observe, that it is not pre- . tended-that;..under the act of 1824, the heirs are not entitled to notice, . On .the contrary, in Ewing v. Hollister, the Court say : “ Under the act of 1824, I have no doubt that the heir e should have notice. To insert his name in the petition merely, c without permitting him to know of the proceedings, would be but a mockery.” It is hard to believe that airy Court, in the most benighted part of the State, ever put any other construction upon the statute. That some negligent attornies may have omitted to cite the owners of land, whether adults or minors, is probable, and it is also probable that, in some parts of the State, the profession have supposed that even minors, old enough to nominate their own guardians, need have no day in court in any case in chancery, or under the statute authorizing the sale of lands to pay debts. But, certainly, there has been no such cotemporaneous construction of the- statute as that now suggested. The statute of 1824 has not generally been construed to mean that the heirs need not be mentioned.in the proceedings, or that it was sufficient to name them in the petition. And even if this construction had been put upon the statute by inferior tribunals in some parts of the State, it would not form part of the law of the land. There is not a shadow of pretence for saying that the cotemporaneous construction of the statute has been, that it authorized proceedings without making the' owner a defendant. If such a construction had been put upon the statute, adult owners would not have been notified. Yet it is not alledged to have been the practice to omit such a citation of adults, but only that in some parts of the State minors have been allowed in -chancery, and in other cases, no day -in court. The effect of this partial practice is said to be, that wherever it has existed, it is binding; but I cannot perceive on what principle that can be so. ' Any such opinion is directly opposed to the decision of this Court in the Lessee of Grey v. Askew, 3 Ohio Rep. 479, and to the current of authorities.

The act of 1824 required the owner to be notified, and the question remains, whether a minor is notified at * all by the action of the court appointing some person to defend for him.. In my opinion, this does not amount to a notification of the minor, and, indeed, the question here is not a question whether a reasonable notice has been given. No notice whatever was given, either reasonable or unreasonable. And the Court, taking it upon itself to adjudicate against the minor, does not in such cases pretend to determine that he has been notified;, it goes upon the assumption that it has power to act, where minors are concerned, without giving them any notice. Court's of chancery are not the guardians of minors in this State, whatever may be the case elsewhere; and, clearly, the Court of Common Pleas, acting under the statute authorizing sales of land to pay debts, is not the guardian of minors. The appointment of guardians is vested in the Court of Common Pleas for each county, and it is worthy of observation that a guardian cannot be appointed for a male over fourteen or for a female above twelve years of age, until he or she has been notified to appear and choose his or her guardian. Hence, it is incorrect to say that the only object of notifying a minor of an application to sell his land is to give his friends notice, for that is not the only object when the minor is old enough to nominate his own guardian ad litem. It is to give himself notice. If the minor be too young for that, the citation is designed to give his general guardian or any other person in loco parentis, or the parent, notice.

The Court of Common Pleas was not the guardian of minors, and could not act until it obtained jurisdiction of the persons of the owners, whether minors or adults. The Court did not, by the appointing a guardian ad litem, adopt any practice or mode of notifying the minors, but held that it had jurisdiction without notice. This was a total mistake. The case of Chase v. Hathaway, 14 Mass. 222, and Smith v. Burlingame, 4 Mason’s Rep. 121, are in point. It is also to be observed, that where a court has jurisdiction, by statute or otherwise, to render a judgment or decree against minors, without notifying them or their guardian, the jurisdiction cannot be exercised after the minors have arrived at full age, when the order for sale was made, as were the defendants, they having been also above fourteen when the proceedings were commenced. In Bustard v. Gates, 4 Dana 435, Robertson, C. J., declared, that a man must be a knave or a fool who says that the appointment of a guardian ad litem, for minors, is a notice to them. And it was held in Collard v. Groom, 2 J. J. Marsh. 487, and in Shaeffer v. Gates, 2 Benj. Monroe 455, that minors are not cited at all by such an appointment. It is true that, in Bustard v. Gates, the Court held, that minors are bound without being cited, and that the want of jurisdiction over the person, whether minor or adult, is only error. I am of opinion, that persons not made parties to an adversary judicial proceeding, are not bound by it, and that they are not confined to the remedy of a writ of error. If such were the only remedy, they would lose their property, and merely have a right to pursue a stranger for the purchase money. It is the duty of judges to guard carefully, and, at all hazards, to preserve the citizen’s right to a day in court, before he is deprived of his property, his liberty, or his reputation; and a right so sacred should never be taken away by implication or construction, when it can possibly be avoided.

This Court asserted, in the Lessee of Good v. Zercher, 12 Ohio Rep. 367, “ that it is the principle object of our political £ organization to secure each individual in the enjoyment of his £ natural rights; and the chief glory of every citizen, however humble or weak, to feel, in the omnipotence of constitutional £ protection, that there is no power under God that can deprive £ him of his property or his rights. That the government itself £ under which he lives is less than the individual man, except as £ it acts within the legitimate sphere prescribed by the people £ wh omade it.”

It is said, Ewing v. Hollister is a case in point to sustain this - order of sale. No distinction is noted between the appearance of the general guardian for minors, representing their persons and estates, and a mere guardian ad litem, appointed by a court having no jurisdiction over the person sought to be affected. That case affirms the necessity of reasonable notice to the minors, , and it is conceded that a notice in itself utterly unreasonable is nugatory. The case therefore is,- in point, against the order of sale. . .

Under the circumstances presented in the present case, it was necessary to serve a notice upon the minors themselves, according to the ordinary mode of serving process; for it is not shown that they had any guardian, and they were old enough to nominate their own guardian ad litem. I find that whomever a great principle is allowed to be broken in upon, there is no limit to the aggression.

So far from having been generally held as stated in the opinion just pronounced, that decrees in chancery against minors, without giving them notice, are valid, not a single case can be found to that effect, unless the court in chancery was itself the guardian of the minors. It is true, plaintiff’s counsel refer to an unreported decision of Judge McLean, on the circuit, to the effect that jurisdiction is to be presumed; and it is said, Judge McLean expressed his opinion to be, that the want of a citation of a minor in a chancery case was only error. That opinion is opposed to Judge Story’s decision, in 4 Mason 121, and to the whole current of authorities. As to proceedings in common law and other courts, which do not pretend to be the guardians of minors, the proposition that they can divest minors of their property in adversary proceedings, without giving them a day in court, is a plain outrage upon common sense.

If the Court of Common Pleas had adopted a practice of notifying minors in any particular .manner, that practice must have been such as to afford the heir a fair opportunity to contest the application; Ewing v. Hollister. A practice to contravene the law of the land, and give no notice, cannot be sanctioned. No court was ever absurd enough to suppose that it was citing minors, by appointing a person to defend for them. It is said, that in the present case, a brother, and a sister, and a cousin of the defendants, had notice of’ the proceedings, and that their mother was dead. There is no evidence to show whether the minors had guardians, but the record purports to set out what the notification was; and it does not appear that the minors were cited in any mode whatever, either by a notice left at their residence or otherwise.

It is contended by counsel, that a citation of the heirs should be presumed, in support of the order of sale. This Court decided, in Adams v. Jeffries, 12 Ohio Rep. 274, that no such presumption could be raised. When a common law judgment is produced, the previous proceedings are presumed; but the presumption may be rebutted, and the want of process may often be shown by production of the full record. Thus, if the record is required by statute to set forth the process, and the exemplification of it, when produced, contains no allegation that process was issued, it cannot be presumed that there is an omission from the record of what the statute requires to be inserted.

It has also been said, that if a summons had been issued and served on the minors, the result would have been the same; that it is not pretended any injustice has been done. I have no means of judging whether the result would have been the same; but I find that the counsel for the defendants insist that, if they had been cited, they might have shown that the debts, alledged to be due, were not charges on their estate; that there might have been a new or different appraisement, more competition at the sale, or that the confirmation might have been successfully resisted. Whether any injustice was actually done, we have no means of ascertaining; and if evidence had been offered at the trial to that effect, by the defendants, it must have been rejected by the Court below as irrelevant. The purchaser at the administrator’s sale had nothing at all to do with that matter, but, on the contrary, had only to inquire whether the Court had acquired, and had exercised jurisdiction.

We are informed that, in some parts of the State, it was formerly the practice to give notice to the guardian or near relatives of minors; that, in other parts, service of process was made personally upon minors, and that, in other parts, no notice at all was given. This is said to have been the. practice in chancery, and upon petitions, by administrator's, for orders of sale. And we are told that, .where it was the practice for some time to give no notice to. the owners of .the land, such owners were bound, although, in-the next county, it may have been the practice to serve a writ of summons. I deny; altogether, that the sacred right to a day in Court can be destroyed upon any such pretext.

Arguments are constantly being- addressed to the Court, as if it had absolute power to divest the title of minors, married women and absentees,' because -their claims' are numerous, and tend to disturb the quiet of ancient trespassers and 'negligent purchasers. The Legislature having refused to . aid the parties, by limiting the period for prosecuting ejectments, &c., an appeal is made from the Legislature to the Court, and, on grounds of public policy, it is called upon to declare that minors have no right to a day in Court; that -any man’s property may be taken from him ’ by judicial proceedings, of which he had no notice; that deeds executed by married women, not proved to have, had the protection which the law required, are valid.

We have denied the power of the Legislature to pass curative laws, divesting the titles of those who have made no contracts to part with their property-;'and I must refuse to this Court the power to do more, in that respect, than the direct representatives of. the people. The Legislature may enact statutes of limitation for the protection of ancient estates, but we can enact- nothing, our sole function being to administer the law according to its letter and its spirit. No court has the' power' to set at nought the statute law, or the eternal principles of right and justice, for the preservation of property, unlawfully acquired. It cannot therefore affirm the validity of adversary proceedings, condemning the property of those who have had no day in Court. Unless we substitute erroneous practice for legal principles, and by the blunders of courts supplant the constitution, the judgment in this case below must be affirmed.


source: Caselaw Access Project

author: Bircharb, J.

license: Public Domain

text:
    In Bank.
    Dec. Term, 1846.
    Henry Lewis and others vs. Samuel C. Lewis’s Administratrix.
    A plaintiff in certiorari} brought to reverse proceedings in the Court of Common fleas, in which lands have been sold on the application of an administrator for the payment of debts, may discontinue the certiorari, although he has previously conveyed his interest in the premises to a third person.
    Dnder the act of 1824, defining the duties of executors and-administrators, where the minor defendants were made parties, and had guardians ad litem appointed, who answered, an order for the sale of land will be sustained,’ though such minors were not served with process.
    This is a Writ of Certiorari to the Court of Common Pleas of Pike County. "

      Be Grand Byington, for Plaintiffs.
   Bircharb, J.

This writ is prosecuted to reverse certain pro*ceedings of the Court of Common Pleas of Pike county, had upon the petition, of defendant as administratrix, for the sale of' lands under the act of 1824. ■ The petition was in the usual form, and set forth that these plaintiffs were minors, and. prayed the appointment of a guardian ad litem for them. A guardian was appointed by the Court, who entered, a yoluntary'appearance for them, and filed an answer. The petition was heard, an appraisal made, and a sale ordered and made pursuant to the statute, approved by the Court, and a deed ordered. •

Three errors are assigned:

First: That the plaintiffs were not served with- process, or in any way notified of the pendency of the suit. ■ ■

Second: That the lands were sold without'any order of Court.

Third: That the sale was for less than the law justified.

Before considering these errors, there is another matter to be noticed. The plaintiffs have filed a paper, signed by them, dated December 10, 1845, stating that they never authorized *^is proceeding, being satisfied if any error exists therein it would be dishonest in'them to take advantage of it, as the property which passed by the proceedings sought to be reversed, went to the satisfaction of the creditors of their deceased father; and having no interest in the subject matter, having released and transferred any that they might have had to John Prather, the present owner of the property, they desire that the same may be dismissed.

In opposition to this, Le Grand Byingtori has filed a deed of quit claim to himself, for the land in dispute, executed by E. F. Lewis, one of the plaintiffs, dated Nov. 23,' 1844; and the question arises, does this deed prevent the plaintiffs 'from dismissing this writ of certiorari? We, think it does not. The deed itself purports to convey no right whatever, save such as E. F. Lewis then had in the lands. It does not profess to confer any right to use the name of the releasor in prosecuting this or any other suit; and it cannot, by implication, be so extended as to embrace a case like this, which the grantor considers dishonest.

A contract with an attorney to prosecute a suit containing a stipulation, that the party should not have the privilege to settle or discontinue it, without the assent of the attorney, would be so much against good policy, that the Court would not enforce it. Much less will a Court raise an implied contract, in order to encourage and foster litigation. This writ of certiorari will therefore be entered as dismissed by order of the plaintiffs.

Had not the plaintiffs interposed this order, the error first assigned would have been disposed of in accordance with the principles settled-in the case of Robb v. Irwin, decided at.this term.

The second and third assignments are not sustained by the record.

Writ Dismissed.


author: Wood, C. J.

text:
    In Bank.
    Dec. Term, 1846.
    Daniel Barnum vs. The State.
    The fraudulent alteration of a settlement of a book account, with the intent to defraud A by including, thus falsely, within the terms of settlement, a claim of A against B, which accrued after the settlement was in fact made, is forgery.
    That such claim existed, may be proved, though there be no book of original entries, or no book account in which the items of *such claim were charged.
    To constitute forgery, the instrument must be such, when forged, that it does or may tend to prejudice the rights of another.
    The intent to defraud some one must be avdrsed and proved, as laid.
    Evidence which tends to prove that the forged instrument could not, under any state of oircumstances, prejudice the rights of any one, is competent to go to the jury.
    This is a Writ or Error directed to the Court of Common Pleas of Lake County, and made returnable in Bank.
    The statement of the case is embraced in the opinion of the Court.
   Wood, C. J.

The record in this- case shows the indictment of the plaintiff in error, at a previous term, and his trial and conviction in the Court of Common Pleas of Lake epunty, at the September term, 1846, for the crime of forgery, and that sentence followed on this conviction, to hard labor in the penitentiary for the term of four years.

The indictment originally contained seven counts. ■ The first, fourth and seventh were quashed by the Court of Common Pleas, and the plaintiff in error was convicted on the second, third, fifth and sixth.

In the second count it is averred, that on the 30th day of April, 1845, Barnum, the plaintiff in error, had in his possession an account against Pearly Ayer, charged on his book previous to March 1, 1841, across which, on that day, was Written an acquittance and discharge of the account, and all demands, in these words: “ This account is settled in full this date, £ and all demands, March 1st, 1841. D. Barnum, Pearly ‘ Ayer;” and that, afterwards, on the 30th of April, IS45, the plaintiff .in error altered the date, by changing the figure 1 at the close, into a figure 4, so as to read 1844. Ayer then “ holding' and having an unsettled account against the plaintiff in error,, with the intent to defraud Ayer,” &c.

■ The. third count avers, that on the '3Oth day of April, 1845, the plaintiff in error forgéd an acquittance of a certain account 'which Pearly Ayer then had against the plaintiff in error, which last acquittance is as follows: “ This account is settled 1 in full, this date, and all demands, March 1, 1844. J>. f Barnum, Pearly Ayer;” with the intent to defraud Ayer.

The fifth count avers, that on the 1st day of March, 1844, Ayér had an account against the plaintiff in error, under the date óf June, 1843, and consisting of several items of hats and 3|- yards, of cloth, and that, the plaintiff in error, on the 30th day of April,’ 1845, forged a certain acquittance of said account, which is set forth in the same ivords as in the second and third counts, and with'the intent to defraud Ayer.

The sixth' count charges the forgery of an acquittance, by persons unknown to the jurors, and that the plaintiff uttered and published. it as true and genuine, knowing it to be false, with intent to defraud Ayer. This count, also, charges the uttering and publishing the said acquittance to have been on the 30th of April, 1845.

The first assignment for error is, in substance, the supposed insufficiency of all the above counts; The second and third assignments are the same, with the exception'that they refer to the several counts specifically, and aver their insufficiency.

A bill of exceptions was taken, during the trial, the material parts of which ■ are, that to maintain the issue on the part of the State, the prosecution offered in evidence a paper purporting to be an account of the witness, Pearly Ayer, against the plaintiff in error, in the words and figures following:

££ 1843, June. Daniel Barnum,
££ To Pearly Ayer, . Dr.
3 Hats, at' $3 50................... $10 50
2 do. , at 3 00...... 6 00
13 ’ do. at .2 50................... 32 50
2 do. at 2 00................... 4 00
3J'yds. cloth, at..................... 3 50
1 Hat for self, $3 50. $56 50
Marked A.”

The prosecution then called Ayer, who testified that he kept a book; that this account was not on it, but was made under the following circumstances: “ That in the month of June, £ 1843, the witness left with Barnum twenty-one hats to be £ disposed of, thus: The witness owed one Bell about $8, £ and the witness, in company with Bell, left the hats with £ Barnum to sell, or to keep enough on hand to pay Bell said debt; that Bell had a right to turn out on execution said hats £ if the debt was not paid, and the plaintiff in error to sell such as were not turned out on execution by Bell, and to account £ to Ayer for the proceeds of the sale, after deducting certain £ commissions, or return the hats. Bell turned out seventeen £ of them on execution, which were sold for $7, and plaintiff £ in error sold four. The witness paid Bell the other dollar, to balance his account; and that the plaintiff in error had not £ accounted to Bell, nor Ayer, for the four hats sold by him, though requested to do so.” The witness stated: “ A re- £ ceipt was drawn up by him, containing the agreement on £ which the hats were left, but not signed, and that the paper 1 offered in evidence was the only account ever made of the £ hats, except the receipt, which was previously made, but un- £ executed.” This receipt was given, by the counsel for the plaintiff in error, in evidence to the jury, to show the agreement on which the hats were left, and that the account offered in evidence was not in the original. The counsel for the plaintiff in error then objected to the admission of the account marked A, on the ground: 1st. That it was not Ayer’s original account. 2d. That it was not on book. 3d. That it was not a subject matter of account, as the hats were left on commission. 4th. That the witness had no right to charge the hats in account, but only the moneys received on their sale, less the commission, and, therefore, had no such account as is charged in the indictment; but the objection was overruled, and exception taken. This ruling of the Court is assigned as the fourth ground of error, and it may as well be disposed of as we proceed.

The charge in the first count is, when stripped of the verbiage the law has thrown around it, that Barnum had an account against Ayer, in June, 1841, which was settled in full, on his books, and signed by both the parties, and purported to be in full of all demands, and that, on the 30th of April, 1845, the plaintiff in error fraudulently altered the figure 1 into a figure 4, so that it read, settled in fall of all demands, in June, 1844 — the said Ayer then holding the amount for hats and cloth, &c., against the plaintiff in error, which had accrued between 1841 .and 1844, and was, therefore, designed falsely, to be brought within the terms of the settlement, and to be cut off, or discharged, by it. These objections, doubtless, appeared formidable to the learned counsel, but we are not able to perceive their force! It was, in fact, of no importance whether Ayer had any book, on which there was an original entry of his claim against Barnum, or not. It might have existed in that form, or upon a separate scrap of paper, as a mere memorandum, or it might, have existed without either, by virtue of the delivery of the hats, their sale, and an express promise to pay, or an implied assumption to that effect. In either case it would have been a demand in favor of Ayer, and equally affected by the forgery, and competent evidence to sustain the count. In either aspect it would have been a claim — a demand — a right to call upon Barnum to account for the proceeds of the sale, and, in fact, an account in favor of Ayer, though not on book. Nor do we perceive that the instrument which was drawn up as a receipt, but not signed, was any better evidence, on account of its being previously drawn up, than the account itself, for neither, per se, was prima facie proof of any indebtedness at all. The witness, then, testified the hats were Ms, when he delivered them to Barnum, in 1843; and divers other matters are stated by the witness not necessary to be noticed. - • •

The State then gave in evidence the ledger of the plaintiff in error, containing the account between him and Ayer, and across which was the writing, set up in the respective counts, claimed to be forged, and the prosecution insisted the same was proved.

■The counsel for the plaintiff in error then gave in evidence certain papers and records, which tended to prove the plaintiff was a certificated bankrupt, and that his- schedule bore date January 28th, 1843, with his certificate of bankruptcy. And the testimony being closed, the Court, among other things, charged the jury, that they must not take into consideration the proceedings in bankruptcy, as evidence tending to prove that Ayer had no valid claim against the plaintiff in error, but consider the same as withdrawn, and the plaintiff in error excepted to the opinion. In this charge of the Court we think error intervened. 7

To constitute forgery, there must be the fraudulent making or alteration of the instrument, with the intent to defraud some one. That intent must be laid, and the person on whom it was designed to operate, and the indictment must charge both truly; and the instrument must be such that it may have the tendency, precisely, which is averred. If A make a release of all claims of B against him, and no such claims exist, it is no forgery, for the want of some thing an which the intended fraud, as charged, may operate. By the bankrupt law, all the claims and demands of Ayer against Barnum vested in the assignee, and could not, by possibility, be affected by the supposed forgery on the 30th of April, 1845, which was after the right of action was transferred from Ayer to his assignee. The altered settlement of June, A. D. 1844, was likewise several months after the transfer, and it. was not therefore possible that any prejudice could arise'to any right of Ayer, by. such change in the date of the settlement. The claim in the hands of the assignee was wholly unaffected by such alteration, in any imaginary state of circumstances.

It. Hitchcock, and Perkins Osborn, for Plaintiff in error.

H. Stanbery, (Attorney General,) for the State.

There are several other assignments of error, founded on the bill of exceptions, but they need not be noticed, as the opinion already expressed destroys entirely the foundation on which the prosecution is based, and no new trial can, therefore, be had on this indictment.

To the general legal sufficiency of the several counts, on which the conviction is founded, we see no substantial objection. Such is the unanimous opinion of the Court. In withdrawing from the jury, however, the evidence which tended to prove, on the part of the plaintiff in error, that no legal forgery was committed, in our opinion, the rights of the accused were invaded, and the judgment and proceedings of the Court of • Common Pleas must be reversed.


text:
    In Bank.
    Dec. Term, 1846.
    The State of Ohio, on the relation of David R. Kemper, vs. Lyman Beecher.
    To an information filed in the nature of a Quo Warranto, where the averment is a continued usurpation of office, the answer must set out expressly the continuance of every qualification necessary to the enjoyment of the office.
    It is not sufiipient to state the qualifications necessary to the appointment; and rely on the presumption of their continuance.
    This is an information in the nature of a Quo Warranto, reserved in Hamilton County.
    The case comes before the Court upon demurrer to the answer, and the information and answer show the following facts:
    On the 11th of February, 1829, the Legislature of Ohio chartered an institution by the name of the Lane Seminary. Its object, as expressed in the act of incorporation, was the establishment of a Theological Institution, to educate pious young men for the Gospel Ministry. By the charter, the institution was to be located in the' county of Hamilton. The board of trustees was at no time to consist of a less number than twenty-three, nor more than twenty-five, with power, from time to time, to fill vacancies in their own body, &c. It is also provided, that the trustees shall appoint all professors, tutors, teachers, officers and clerks, &c. And an executive committee, to consist of a president, three vice presidents, a treasurer, recording secretary, corresponding secretary, and six other members, is provided for, to be elected by ballot, by the trustees. •
    The third section of the charter is in these words: “ That £ the. officers and members of the executive committee shall £ reside in the city of Cincinnati, or its vicinity, a majority of £ whom, together with all the professors, tutors, teachers and £ instructors in the said institution, shall be members of the ‘ Presbyterian church, in good standing, under the care of the £ General Assembly of that church in the United States.”

      This corporation organized under its charter and' is located in the vicinity of Cincinnati. The relator joined with others in the conveyance of a tract of sixty acres of land,/on which the seminary is established, near the city, to the institution, for the purpose, as expressed in the deed, “ of promoting the benevolent objects of the institution.”
    The information charges that Lyman Beecher, who is not a member of the Presbyterian Church, in good standing, under the care of the General Assembly of that Church, in the United Slates of Am'erica, on the first day of May, 1845, usurped, and still doth usurp and intrude into the office of Professor of Theology in the Lañé Seminary, without any legal appointment or qualification, and without due warrant of law, has and does exercise the-office of Professor of Theology in said Seminary.
    To this information the defendant answered:
    First: That at a meeting of the Executive Committe of the Lane Seminary in January, 1832, he was appointed President, &c., and Professor of Theology, with the understanding 'and proviso that, before he could formally accept said 'appointment, he must become a member of a Presbyterian Church under the care of the General Assembly of the Presbyterian Church in the United Stales, as required by the charter.
    Second: That this appointment was accepted, approved, and confirmed, at- the annual meeting of the Board of Trustees, on the 29th of October, 1832.
    Third: That at the time of his appointment, he resided in Boston, but removed to Cincinnati in October of that year, and became a member of the Presbytery of Cincinnati, under the care of the General Assembly of the Presbyterian Church in the United States, and has since resided, and now resides, in the vicinity of Cincinnati, and in the neighborhood of the Lane Seminary.
    Fourth: That on the 1st of December, 1832, being a member of the Presbyterian Church, in good standing, under the General Assembly of that Church in the United States, he accepted and took upon himself the office of Professor of Theology, &c., and has ever since held and exercised the same, as he claims a legal right to do.
    To this answer of the defendant, the State demurred generally, and the defendant joined in demurrer.
   Wood, C. J.

The question raised in this case, is upon the sufficiency of the defendant’s answer. All the facts which are well pleaded in it, are admitted by the demurrer. Does it, then, coyer all the material averments in the information ? If not, that averment which is not sufficiently answered, being admitted, as a legal consequenc e, judgment of ouster follows.

A legal appointment to the professorship of theology in the institution, due qualifications, and a legal entry on the duties of the office, are, in our opinion, well pleaded. There was, then, no usurpation. But the averment is, that the defendant does now, without legal warrant or qualification, exercise the said office, &c., and the defendant answers this charge by the averment to which I have before alluded, of a legal appointment, qualification, and entry upon the duties of the office, and then states what he claims as a legal conclusion, that he has ever since held and exercised the same, as he has a legal right to do!

It appears to us, this is not enough. The third section of the charter provides, that all the professors shall be members of the Presbyterian Church, in good standing, under the care of the General Assembly of that Church, in the United States. While professors, they must he members, &fC., with the qualifications required by the charter. Whenever they cease to possess the qualifications, the office is forfeited, and they may be ousted. And if once qualified, in a case and upon a charge like this, the defendant cannot rely upon the presumption of the continuance of such qualification, and demand of the State proof of the negative. But the authorities require of him to set out all the facts necessary to constitute a good title specifically to hold on to the office. He must aver, that he is now a member, fyc., in good standing, fyc., or he shows no right to continue .to exercise the office, though his qualification and warrant may have been sufficient in the beginning.

Charles Fox, and Wrights 8f Miner, for the Relator.

Henry Starr, for the Defendant.

The demurrer to the answer is sustained, and the défendant may have leave to amend his answer.


author: Wood, C, L. Birchard, J.,

text:
    Hugh Allison vs. John McCune.
    A Bpecial action on the Case lies against one who lessens the mortgage security of another, and damages may be recovered to the extent of any actual injury sustained • by such act.
    This is a Special, Action on the Case, reserved in Washington County.
    The action was originally brought in the Court of Common Pleas of Washington county, and came into the Supreme Court by an appeal. In the Supreme Court, a trial was had to a jury, at the, March term; 1845, and a verdict rendered for the plaintiff for six hundred dollars, subject to the opinion of the Court on the law of the case, arising on an- agreed statement of the facts which accompanies the files, and by the consent of counsel, is submitted as, the evidence in the suit.
    The declaration contains three counts. The first describes a messuage in the possession of Andrew Allison, who had before mortgaged it to the plaintiff for $4,000, and avers that the defendant, McCune, had broken do.wn and destroyed a certain mill erected on the mortgaged premises, and carried away the machinery and fixture of the value of $2,000, and converted them to his own use, whereby the messuage was rendered of less value, and the mortgage security of the plaintiff, impaired to his damage, &c. .
    In Bank.
    Dec. Term, 1846.
    The second count describes the plaintiff as a reversioner, and. complains of-the same acts, as an injury to his reversionary interest: .There is, also, a third count, in trover, .for the conversion by the defendant of certain, milling utensils, machinery, &c., particularly described, to the damage, &c. To this declaration, the-defendant pleaded the-general issue of riot guilty, and the evidence now to be applied to.the issue, in disposing of the. verdict of the jury, is found in .the agreed statement of facts, and Upon which, under the-issue, the law arises.
    It is, in substance, as follows:
    On the trial of this case it was proved that oh the 11th of Mar.ch, 1841, Andrew Allison being in possession of and residing on a farm in Washington county, mortgaged it (] 00 acres) to Hugh Allison, the plaintiff, to secure the payment of a promissory note from Andrew to Hugh, of the same date as the mortgage, for the sum of $4000; which mortgage was recor-. ded May 11th, 1841. The note and mortgage were given to indemnify Hugh for becoming security for Andrew, before that time, to sundry persons. '
    The' mortgage described the land by metes and bounds, and “ to have and to hold- the granted premises, with all appurtenances thereof, to the Said Hugh Allison, his heirs and assigns,” with covenants of warranty. . Proviso for the payment of 'the note of $4000.
    A t the time of executing the mortgage there was a steam grist and saW mill and distillery on the land described. The grist mill used .principally in grinding for the distillery. Andrew remained in possession and use of the land .described in the mortgage, until after the commencement of this suit, exercising ownership as mortgagors-usually do. \ . ■
    .' Ón the 18th of May, 1842, Hugh filed,his bill in the Common Pleas of Washington - county, praying a subpoena against Andrew — that he be compelled to answer — that an account might be taken of what was due Hugh'.for .his' principal and interest due. On the mortgage — that the mortgaged premises be sold, and the proceeds thereof applied to satisfaction of such principal and interest — and for further relief. Andrew was served with process but did not answer, and at the August term of the Court, (22d August,) 1842, a decree was entered pro confesso, against Andrew for $4,334 and costs, to be paid in ten days; and that in default thereof the Master Commissioner proceed to sell the mortgaged premises as upon judgment at law and bring the money arising therefrom into court to abide the order of court. On the 22d of August, 1842, an order was issued to the master who appraised the premises, and offered but did not sell for want of bidders.
    On the 13th December, 1842, a second order issued on which the property was. offered by the master on the 6th of March, 1843, and bid off by Hugh at two-thirds, the'appraised value, $1,334; but not having advanced the costs, the master returned the fact and no sale for want of bidders. April 4, 1844, a third order was .issued, and May 4th the mortgaged property was sold by the master to John Mason for $1,334, being two-thirds the appraised value; and at the May term, 1844, of the Court of Common Pleas the sale was confirmed, deed ordered, and money directed to abide the order of Court on the hearing of the bill of one Park, a judgment creditor of Andrew Allison and Hugh Allison as security. Hugh had paid about $60 on his liability as security for Andrew, and some Attorney’s fees. Andrew’s property is exhausted, and Hugh’s also, unless a sale of some of . his land is set aside as fraudulent, for which a bill is pending by creditors of Andrew and Hugh as security. Hugh’s liability as security for Andrew did not amount, to the sum of the mortgage note; but his liability exceeds the amount of the proceeds of the mortgaged premises, and the amount of the verdict in the present action. Andrew Allison was justly indebted to the defendant, M’Cune, for which Hugh, was not bound, and the defendant, M’Cune, obtained a judgment against Andrew Allison in the Court of'Common Pleas of Morgan county, Feb. 28, 1842, for'$386.97 debt, $7.05 costs. On this judgment an execution was issued to the sheriff of Washington county, dated March 4, 1842, which the sheriff levied, April 1, 1842, on the steam engine and fixtures, the running gear of the grist and saw mill and still worm and tubs of the distillery, by direction of the defendant, M’Cune, and before the return of the writ, on the 21s'tof May, the sheriff, by direction of the defendant, M’Cune, went to the property and scheduled what had been levied on, and removed the same off the mortgaged premises. The stills, tubs, &c., which had been before that time sold on a constable’s execution against Andrew Allison in some other case, were not taken. The steam boiler was set in a furnace of stone and brick on the top of the ground. The engine was also se.t in timbers laid on raised walls on the top of the ground, and the machinery of both grist and saw mill was attached by coupling shafts, drivers and straps. The buildings for the grist and saw mills were frames set on the surface and against a bank, on slight foundations of stone and blocks.
    In severing the property levied on, the furnace for the boilers which was outside the millhouse was removed on the top, leaving the foundation above the ground, and all the other property was taken without injury to the buildings. The writ was returned by defendant’s order without sale, and on the 11th of August, 1842, a vendi. from the Common Pleas of Morgan county was directed to the sheriff of Washington county, to sell the above property so levied and removed. By virtue of this last execution, the sheriff of Washington county, after giving legal notice of the time and place, proceeded to sell the property at public sale, on the 31st of August, 1842 ; at which time the plaintiff, Hugh Allison, appeared and gave notice that he claimed the property, and forbid the sale. The defendant, M’Cune, indemnified the sheriff, and the property was sold to M’Cune and others, who were the highest bidders, in parcels for sums which, in the whole, amounted to $114. Hugh Allison, the plaintiff, at no time after the execution of the mortgage, before this sale, having had actual possession of fhe mortgaged premises, or the property sold as above.
    ' If, upon the ■ above facts, the Court is of opinion that the plaintiff is entitled to recover, then judgment is to be entered on- the- verdict — if otherwise, the verdict is to- be set aside and .'a nonsuit entered. . • .
    C. B: Goddard, .'for Plaintiff,
    I.. Parish, for Defendant.
    ■ No arguments were furnished to the Reporter.
   Wood, C, L.

It is urged by the.’counsel for the defendant, that this action is not sustainable by any known and well • settled,. principle of law. -The absence .of direct, or, at least, •analogous authority, it is certain, with a careful judge, tends to create uncertainty and doubt, not' unfrequently, whether a po- ■ sition assumed as the basis of a -right, to recover can be sustained;.'.' But case's do,'however, often occur, in the multifarious' relations and transactions of mankind', when it is, by no means, Un insuperable ohjection- to the remedy soúght 'to be-obtained, that.'there is no direct adjudication in ' point. Rulés of law must ■ sometimes, ■ of necessity, be -extended to .suit the local condition and meet the exigencies of every'people. The com-, mon law of -England, imported by our ancestors, as.’is- said, is in force in Ohio, but it rests, nevertheless, in the sound discretion of the Court to say how far it is applicable to our condition; It is one of the maxims of the common law, that for every injury a remedy is given, and when the justice of a causé stares me fully in the facej I ■ will say, w-ith Mr.. Justice Eyre, that' “ Ido not feel myself pleased to he knocked down with formal objections.” If.there is no Jinownmode of redress, it is the duty of the Court, in such case, to open some new channel through which a remedy may be obtained. But I am not aware that the plaintiff,, in the case at bar, is driven to the extremity to ask of the Court the adoption of any süch course. It appears to us, the"action may be sustained upon the ordinary principles applicable to a special action on the case, in general. Such an action lies to recover damages for an act done by another, either lawful or unlawful, with force or without, when the damages are not immediate, but as a consequence resulting' from some intervening act, produced by that which is the gist of the action. Examples in the books áre known to every lawyer. The action, by a singular provision of the statute of Ohio, has been extended to cases where trespass will lie, and is now a legal remedy to recover for an assault and battery. But take the action of case, as 'defined, with the general principle that the laiu gives redress for every injury, (but to which rule there are, doubtless, exceptions,) why is the plaintiff, on principle, not entitled to maintain his action ? To simplify the facts, "the - agreed case shows he was a mortgagee of Andrew Allison; the condition of the mortgage was broken and the defendant was a subsequent judgment creditor of Andrew. As against Andrew, the lién of the plaintiff’s mortgage was older than that of the defendant’s judgment. Under these circumstances, the defendant, with his execution, issued upon his judgment, interferes and lessens the plaintiff ’ s security, by removing the fixtures and destroying the mill covered by the plaintiff’s mortgage, so that the.mortgage lien is an insufficient security for the plaintiff’s debt-, and Andrew Allison has no other property of any description. In our opinion, on principle, where such security is thus- diminished, and damages result from the act, to the plaintiff, the action lies. For authority, we have examined only the cases cited. The 2 Greenleaf’s Rep. 173, presents a case directly analagous: M mortgaged to W, and afterwards erected a house on the land. M sold the premises to another, and he sold the house to the defendant, who' removed it. The mortgage was assigned to the.-plaintiff, and it was held he might recover the value of the. house. Idem, p. 387, is a similar case, but the action was trespass.

There is, however, no difference in principle. Possession or right of immediate possession is not always necessary to maintain cases for an injury either to real or personal property. It will lie for an injury to a reversionary interest, in either personalty or realty, though in trespass, without the aid of the Ohio statute, the rule would be different.

But it is said, the machinery of the mill was not realty or fixtures, and did not pass with the mortgage; but the evidence shows, it was placed there for permanent use; that it was attached to the mill and the freehold; and, in this case, the facts show, inevitable loss will probably result to the plaintiff, though permitted to recover in this action.

Judgment for Plaintiff.

Birchard, J.,

dissenting. This action should not be sustained. The plaintiff had no claim but that derived from the mortgage, and he was out of possession. By the uniform decisions of this Court, the mortgagor in possession holds the legal title, as against ail the world, except the mortgagee, and against him till the condition is broken. 2 Ohio Rep. 223 ; 8 Ohio Rep. 222.

There was no such thing as a reversionary interest in the mortgagee. He had no rights save those to be worked out under his mortgage deed. It is well settled that, while out of possession, he cannot maintain trespass. Equally well settled is it, that for an injury, immediate and direct, trespass, and not case, is the only remedy known to the common law. •

Our statute giving the action of case where trespass would lie at common law, seems to break down old and established forms. It was enacted to place, as far as legislation could effect that object, the unskilled and ignorant upon an equality with men of experience and learning — not to create a right of action, which was before unknown, and which would give to one man a remedy that otherwise would belong to his neighbor.

This is manifestly a case of first impression. It is a novelty. There is nothing like it in all the books. Nothing which will bear a close analogy to it, when carefully examined. The mere fact that it is novel, however, would not be a fatal objection, in my opinion, if it were the only one. There is something more serious than novelty to be overcome. The wrong for which this suit was brought, was the detaching of ailedged fixtures. The injury complained of was direct, and done to the realty. The person in possession was the one who had the right of action. He, and he alone, should be allowed to prosecute; and he may, tomorrow, sue for and recover damages to the full extent of all the injury done to the premises. The levy of an execution upon the real property, or upon fixtures — which, as savoring of the realty; would pass by deed conveying the land — could not be justified under the execution. The officer and the defendant treated it as personal chattels; and if it was not such, they were both trespassers ab initio. The proceedings upon execution -will be no defence to a suit brought by the mortgagor, if the property sold was what the plaintiff claimed it to have been, and the rule of damages cannot bo less than the amount of the whole injury that was sustained.

My brethren argue that this proceeding would be no bar to an action by the mortgagor. They claim, however, that it would bar a recovery, so far as the damages to the reversionary interest are concerned. As I have before said, there is no reversionary interest in the mortgagee. The owner of the land, the mortgagor, has the interest affected by the supposed tres-» pass. It was his right to protect the property, pledged for the payment of his own debt, from waste; his right to have the whole of it, either to use in payment of his debts or otherwise, as might not be inconsistent with his own contracts, and no trespasser can gainsay that right.

To make the matter apparent to any one, let me suppose the act complained of to have been done by a wanton trespasser; that the mortgagor in possession prosecutes for the injury, and proves the damages to be equal to half the original value of the ?and and its appurtenances. The rule of damages would be such sum as would be equivalent to the injury. This Court .Would-direct the jury to’ assess 'that amount, at,'all events. The that' the land was'üíider a.'mortgage for .¡pore than its value, ''would mot-affect, the- rule. ' If,.the mortgage, should be offered' for.-such .¿- purpose, 'it. would; be ruled out*- and ' the trespasser Áyduld.-b.e''tóld 'that iC'was'the/priyilege.-qf his.advefsary.tp have W'.oWn'-'propefty' applied ,tp -the payment .-or-security of his -debts’,and that-it'was as valuable ;tó him for that purpose as-for any other. The recovery, therefore,' jVoiild be. fpf the whole amount of the damage. • ' - '

■ Now, if this .plaintiff’s, action is allowed, there is nothing in the' case which' I have .supposed to prevent the mortgagee from prosecuting andtréeóvering damages for the same injury.. The mortgaged' premises .being of.less'-value than' the debt, secured by it, and the-only means of payment* the inju.fy to the mortgagee must be held;.'under the theory of my,brethren, coextensive with the- supposed trespass. Thus, there, would be two actions, and two recoveries of full'damages; in, addition tp smart-money for the same mattér, cause and thing, by different, plaintiffs. Suqh. a. thing would mot be a-mere novelty. It would . •be an'absurd violation of justice — a wrong which would demand a new remedy; and if the Legislature would not give it, the Court would-feel itself called upon to retrace its steps, or to make such further advance as would meet 'aft evil of -its own creation. y .: ' ■

•" It is said, 'that if the, plaintiff has any remedy it.m.ustf -be-.' by this action. . ' ' • .

Cases to sustain it áre cited from other States, in which, for like injuries, trespass lias been maintained. ' It is admitted that in all 'those States, the legal estate and'right- of, possession are regarded-as in the mortgagee,; and', that'the"different rulépn Ohio renders case the proper action here.. ■ :

’ It may be, that the plaintiff will-'have no' .remedy if this, action could .not be sustained. If so, he would be placed in the same condition that many other creditors have been who took insufficient measures-to secure the debts dire them. He might have done better. There was no law to hinder him from contracting. for the possession or control of the property pledged • to him as security. It was his own folly.'to leave it in the hands of his creditor. ■

The cases quoted from other States, violate no correct princi- • pie and lead to no absurdity. They give the legal action to him holding the title and the possession, and, as a consequence, would deny it to the opposite party. ■ They would send the latter, holding, as they do, that he had but an equity of re-. demption, into a court of equity to enforce any right belonging' to him. That should be done in. this State, under our decisions, by the mortgagee. One having but an equity, and .no legal title or actual possession, should not be permitted to re sort to a court of law and prosecute an action upon a mere equitable claim, contingent in its nature, and which at any moment may be utterly extinguished by the payment of the debt.