text:
    Lessee of John Hollister v. Henry Bennett.
    Previous to the year 1826, it was not necessary that the return of the collector of taxes on town lots, delinquent for the non-payment of county and township taxes, should be verified by oath.
    Ejectment. From Wood. The plaintiff seeks to recover lot 315, in Perrysburgh. The ease was submitted to the court in the county, who expressed an opinion in favor of the defendant. The plaintiff then moved for a new trial, upon the ground that the court mistook the law arising upon the facts of the case, and that motion is now before the court. As the facts of the case are fully stated in the opinion of the court, it is unnecessary to state them here.
    Corrinberry and Spinic, for plaintiff.
    Way, Bennett and Campbell, for defendant.
   *By the Court,

Hitchcock, Judge.

The plaintiff claims title to the premises in controversy, in virtue of a sale made by the collector of Wood County, for county and township taxes, on the 15th Dec. 1826.

This lot, in the spring of the year 1823, was listed by the township lister of the town of Perrysburgh, in the name of an unknown ownerj and in conformity with the law then in force, was appraised at twenty dollars.

It was placed on the duplicate of county taxes for the same year, and charged with a tax of ten cents, being equal to five mills on the dollar. On the 15th of March, 1824, it was returned by the collector to the county auditor, delinquent for the non-payment of this tax. At the same time, other lots in the same town were returned delinquent. This delinquent list was not verified by oath.

In the spring of the year 1824, the lot was again listed in the name of unknown owners, and appraised at forty dollars. On the duplicate of this year it was charged with a tax of twenty cents, and also with the ten cent tax of 1823, amounting, together with a penalty of twenty-five per cent, on said ten cents, to thirty- two cents five mills. On the 1st of March, 1825, it was again returned delinquent, as before for the non payment of the taxes and penalty.

On the duplicate for the year 1825, the lot was charged with a tax for that year of twenty-five cents. It was also charged with the taxes of 1823-4, amounting for those two years to thirty cents, together with a penalty of twenty-five per cent, on said thirty cents, amounting to seven cents five mills, making in the whole, including the tax for the year 1825, sixty-two cents five mills. This same year, a township tax was assessed on said lot, of ten cents. Neither the county nor township taxes were paid, and on account of Such non-payment, the lot was again, in March, 1826, returned delinquent. None of the foregoing returns of delinquency were verified by oath.

In the year 1826, the county auditor placed this lot upon the duplicate charged with the township tax for 1825, of ten cents, and penalty of twenty-five per cent., making in the whole twelve and a half cents, and with the county taxes for the years 1823-4-5, with penalties on the same of twenty-five per cent., making in the whole sixty-eight cents seven mills, and amounting, including county and township taxes and penalties, to eighty-one cents two mills.

On the 19th day of December, 1826, these taxes still remaining unpaid, the lot was sold by the collector of taxes, to the lessor of the plaintiff, and on the 27th day of the same month, the collector made ^return to the county recorder of the sale. This return was verified by oath, but in it the name of the purchaser was not specified. And on the same 19th day of December, the collector conveyed the lot to the lessor of the plaintiff, reciting in the deed that he was the purchaser at the sale for taxes.

Upon these facts the plaintiff relies as proving title in his lessor.

To this title the following objections are made.

1. It does not appear from the records of the auditor of the county as given in evidence, that the lists of delinquencies for the years 1823, 1824, and 1825, were sworn to by the collector.

2. It appears from the facts in the case, that the said lot was charged with and sold for a greater amount of tax, interest and penalties, than was actually due thereon.

3. The certificate or return of sale made by the collector to the recorder of the county, does not show to whom the lot was sold.

4. There is no sufficient evidence of the publication of the delinquent list.

Before considering these objections, it may be well to remark, that previous to the adoption of the ad valorem system of taxation in 1826, taxes for state and county or township purposes, have from the first organization of the state government, been levied upon different objects of taxation. The state revenues were derived from taxes upon land -excepting lots in town; the county and township revenues principally from taxes upon personal property, town lots and houses. Hence different systems were adopted for the levying and collecting taxes upon these different descriptions of property, and these systems were prescribed in separate and distinct laws. These laws were changed from time to time, but still the distinction was kept up between such as were enacted for levying taxes upon land, and such as regulated county levies. In each township a lister was appointed, whose duty it was, relative to county levies, to take a list of such personal property, town lots and houses, as were subject to. county or ■township taxation, and it was further his duty, in conjunction with another township officer, denominated an appraiser, to appraise houses and town lots thus entered upon the list. These lists were returned to the commissioners of the respective counties, and from them the duplicate for county taxes was made out; and the taxes collected either by township or county collector, as the ease might be.

Having made these remarks, I will now proceed to examine the objections made to the plaintiff’s title in the case before the court. *And the first is that it does not appear from "the records of the -county auditor, that the several delinquent lists for the years 1823, 1821, and 1825, were sworn to.

It is clear that there is no such evidence, and if it is necessary to the validity of the plaintiff’s title, the objection is well taken. In the ■thiriteth section of the act of February 8th, 1820, “ levying a tax on land,” 2 Ch. St. 1106, it is made the duty of the collector to attest, under oath, the list of lands returned by him to the county auditor, as delinquent for the non-payment of taxes. But this has nothing to do with the case before the court. That refers to delinquencies under a law levying taxes for state purposes. The lot in controversy was sold under a law regulating county levies.” And the law under which the taxes were levied for-the non-payment of which it was sold, was -the act of 27th February, 1816, Ch. S. 987. It is to this act, then, and to those subsequently passed, amendatory thereto, and upon the same subject, we must look to ascertain the rights of the parties.

Counsel for the defendant infer the necessity of an oath from the third section of an act of the 27th January, 1823, amendatory to the act entitled “ an act regulating the duties of county auditors and ■county commissioners,” 2 Ch. St. 1256. This section provides, “ that the respective county auditors, on the final settlement with collectors, may, upon evidence to them satisfactory, make reasonable and just allowanee to them for delinquencies in collecting, which may be owing-to any persons who are chargeable in their duplicate, absconding, or being insolvent, and the said auditor shall examine the collectors under oath or affirmation, touching the delinquencies.” Counsel both for defendant and for plaintiff, seem to suppose that the delinquencies here referred to, are the delinquencies of lots not sold for taxes. But I apprehend they are mistaken, and that these delinquencies are entirely of a different character.

This section is a transcript of the twentieth section of the act of February, 1816, before referred to, Ch. S. 987, “ regulating county levies;” except that the county auditor is substituted for the county commisioners, and the oath of the party, for other testimony. But in-the act of 1816, there is no provision made for returning lots delinquent. where the tax upon them is not paid. On the contrary, it is-provided, in the twelfth section, “ that whenever the tax on any lot or lots is not paid, on or before the first day of November, annually, and-no goods and chattels can be found whereon to levy, the collector may levy on such lot or lots, thus charged,” and after having given ^thirty days’ notice of the time and place of sale, in the manner prescribed in the section, shall, if the tax remain unpaid on the day appointed for the sale, “ proceed to sell so much of the lot or lots thus charged, as will discharge the taxes and costs.” Ch. St. 989. There could then be no delinquency so far as town lots were concerned, unless from the want of purchasers.

The delinquencies contemplated in the twentieth section of the act' of 1816, and in the third section of the act of 1823, which is in fact but a continuation of the former, are specifically pointed out in those two sections. They are such as happen in consequence of the “ absconding or becoming insolvent” of any person who may have been charged with a tax upon the duplicate. The collector, when he received the duplicate, became chargeable with all the taxes contained therein, and was compelled to give bond in double the amount of tax charged in the duplicate, with security, conditioned for the faithful collecting and paying into the county treasury, the full amount of the taxes by him to be collected,” etc. Ch. St. 988. If taxes were not paid by a specified time, it was the duty of the collector to levy upon and sell the personal property of the delinquent or delinquents, to satisPy the amount of tax. Such being the duty and such the liability of the collector, it was just and proper, that if an individual whose-name was upon the duplicate, should abscond, or should become insolvent, so as to place it beyond the power of the collector to make collection, he should be relieved. To give this relief was the design of the two sections referred to. And by them the county commissioners, in the one, and the county auditor, in the other, were authorized, in such cases and under such circumstances, to make to collectors “ reasonable and just allowances,” in settlement. In other words, they were authorized to allow to collectors a credit for such taxes as were upon their duplicates, that could not by any diligence be collected.

But there could be no such delinquency in the case of town lots. Upon these the tax levied attached as a lien, and for its payment, the lots themselves, as before stated, were to be sold. And there could be no cause why a collector should have credit upon his duplicate for the .amount of such tax, unless, as before remarked, the lot itself could .not be sold for the amount o* the tax.

The law of 1816 remained unchanged until January 29th, 1818, when an “ act to prevent the sale of town lots for taxes,” was enacted, .2 Ch. S. 1037. By the first section of this latter act, it is provided, “ that where the owner or owners of unimproved or unoccupied town lots, do not reside within the limits of such town, and the tax assessed *upon such lot shall not be paid within the time required by law, the collector shall make return of all such delinquent lots, to the .authority from whence they received their duplicate, whereupon a pen.alty of ODe hundred per centum, upon the amount of each year’s tax shall be incurred, and each lot shall be bound for the tax and penalty due thereon, and the owner or subsequent purchaser shall be liable .therefor.” This is the first law to be found upon our statute books, requiring town lots, upon which taxes were not paid, to be returned delinquent. Previous to this time, such lots, under such circumstances, .have been sold, but here was a partial change of the system. It did not extend to town lots generally, but to those only which were unimproved or unoccupied, and the owners of which did not reside within the limits of the town where such lots were situated. If upon lots of this description, the tax was not paid, it was the duty of the collector to return them delinquent. But there is nothing in the act which requires that this return shall be verified by oath.

The law was amended by an act passed January 29th, 1821, 2 Ch. .St. 1178, but this latter act makes no change in the former law, except to reduce the penalty from one hundred, to twenty-five per cent. Like the law to which it is amendatory, it requires that the collector shall ¿return a delinquent list, but it does not require that the same shall be -verified by oath.

During the existence of this latter law, the lot now in controversy-was listed, appraised, taxed and returned delinquent for the non-payment of the tax of 1823.

The next law relative to the subject, is found in the ninth section of the act of February 23,1824, entitled an “ act defining the duties of collectors of county tax.” 2 Ch. St. 1384. This is but a repetition-of the first sections of the acts of 1818 and 1821, above referred to, with the following addition: and the trustees of all townships and-, officers of incorporated towns, shall in dike manner, cause all lots returned to them delinquent' for township or corporation tax, to be certified to the auditor of the county, stating the number and appraised, value, together with the tax and penalty due on such lot.”

The county taxes for the years 1824 and 1825, and the township tax for 1825, were assessed upon the lot in controversy after the enactment of this law of February, 1823, and the taxes not being paid, it was returned as delinquent. And in pursuance of the latter clause of the-section quoted, the delinquency for the non-payment of the township tax, was certified to the auditor of -the county by the trustees of the township of Porrysburg.

From a careful examination of all these different statutes, and we-^believe they are the only ones which have any bearing upon the question, we have been brought to the conclusion, that the law did not. require the list of town lots, returned by the collector of township or county taxes, as being delinquent for the non-payment of such taxes, to be verified by oath. Such oath was not expressly required, nor eanits necessity be inferred from implication. Should the enquiry be made why there is any difference in this respect between the return-of a collector of state, and the collector of county taxes, we can only reply that the difference exists in the laws, by which their duties are-prescribed. The reasons for the difference can not, probably, be very readily perceived.

The second objection to the title of the plaintiff is, that the said lot was charged .with, and sold for a greater amount of taxes and penalties, than what was due thereon.

In this particular, the counsel for defendant labor under a mistake. This lot was sold in pursuance of the law of January 18th, 1826, “ providing for the collection of taxes on lands and town lots which have accrued prior to the year one thousand eight hundred and twenty-six,” 2 Ch. St. 1519, in connection with the law of 1824, before referred to, defining the duties of county collectors.” In the sixth, section of this act, it is provided, that where the county collector, or trustees of any township, or officers of any incorporated town, Or of any recorded town plat, shall have returned to the county auditor, a delinquent list of unimproved or unoccupied town lots or parts of lots, the owner or owners whereof do not reside within limits of such town \ on which the tax assessed has not been paid within the time required by law; such auditor is hereby required, on or before the first day of August next, to make out a duplicate of such taxes, thereon charging the amount due, whether for township, county, or corporation purposes, adding to the tax of each year a penalty of twenty-five per cent., together with the interest on such tax,” &e. In making out a duplicate in pursuance of this section, the county auditor charged the lot in controversy witb a township tax and penalty amounting to twelve and a half cents, and county taxes, interest and penalties, amounting to sixty- eight cents and seven mills. The amount actually due and owing, was as follows ;

County tax for 1823, 10 cents — Penalty 2.5 cts.=12.5
” ” 1824, 20 ”. ” 5. ” =25
” ” 1825, 25 ” ” 6.25 ” =31.25
Township tax, 1825, 10 ” ” 2.5 ” =12.5
81.25

^Whereas the amount actually charged, and upon which the land was sold, was eighty-one cents, two mills, being one half mill less than the amount actually due. To the amount of taxes and penalties,, should have been added the interest, which was not done, so that th<( lot, instead of being charged with too much, as is supposed by counsel, was charged with too little.

But it is insisted that the township tax should not have been included, because it is claimed there is not sufficient evidence of the defalcation or delinquency. There is precisely that kind and degree of evidence which is required by the statute, and this must certainly be held to be sufficient.

The third objection to the validity of the plaintiff’s title is, that the certificate or return of sale, made by the collector of taxes, to the recorder of the county, does not show to whom the lot was sold.

' The lot was sold, or ought to have been sold, according to the provisions of the act of 1824, “ defining the duties of collectors of county taxes,” 1 Ch. S. 1384. The seventh section of this act is as follows : Whenever any town lot or lots, or any part thereof, shall be sold at vendue, by any collector of tax, agreeably to the provisions of this act, it shall be the duty of the collector to lodge with the recorder of the county, in which such lot or lots may be situate, within ten days after the vendue and sale aforesaid, the notification of such sale posted up by him, the newspaper containing the advertisement of such sale, if any, with a certificate, accompanying the same under oath, setting-forth the amount of tax charged on such lot, that such tax remained unpaid, and that such notification was posted up according to law, which notification and certificate shall be recorded by such recorder.”

It will be seen that there is nothing in this section requiring the col ■ lector to state the name of the purchaser in this return made to the veeorder. The object seems rather to have been to preserve evidence Of the notification and sale; for the section, after'having prescribed that the notification and certificate should be recorded by the recorder, provides, “ A certified copy of such record shall be competent testimony touching those facts, in any suit in which the validity of the collector’s deed may be brought in question, and the said newspaper shall be kept on file by said recorder, and said recorder shall be entitled to receive such fees of said collector for recording, as is given in other cases for similar services.”

By the next succeeding section, the collector is required to give the purchaser a certificate of purchase, “ and at any time thereafter, *make a deed to the purchaser,” and On or before the first Monday in January, then next following, he is required to transmitió the auditor of his county, a list of all lots or parts .thereof sold, also the purchaser’s name,’’ etc. Whether this return was made in the present case we know not, as there is no evidence upon this point. It is not necessary, however, that it should be done immediately after the sale. If it be made on the first day of January next succeeding, it is sufficient. Before this time a certificate to the purchaser must have been issued, and it may be that a deed has been executed. In fact in the oase before the court, the deed was executed on the 19th of December, the very day of sale, which, if the proceedings hitherto had been in conformity with law, vested a title in the grantee, and it would be rather extraordinary to hold that this title could be divested by the failure of the collector to do an act which he was subsequently bound to perform.

The last objection to the plaintiff’s title is, that there is no sufficient evidence of the publication of the delinquent list.

Before selling any town lot for taxes, it is by the sixth section of ihe act of 1824, made the duty of the collector to give thirty days’ notice of the time and place of sale, “therein describing, the lot by number, the proprietor’s name, if known, and the tax due thereon, either by the publication of such notice in a newspaper, printed in the town where the lot lies, or by posting up notices- thereof in four public places in the said town, and one at the door of the court house of the ■county.”

The evidence before the court that this provision of the law was ■complied with, is contained in . a copy from the record of deeds m "Wood County, which purports to be a copy of the report of the county collector of Wood County, of the sale of in and out'lots in the town of Perrysburg for taxes. It is as follows : “ Having received • of the auditor of Wood County, in the State of Ohio, a duplicate containing the following lots in the town of Perrysburg, in said county, as having been returned delinquent for the non-payment of taxes, which accrued previous to the present year, 1826, with directions to sell the same, I have levied upon, and shall sell the said lots, at the ..court house of said county, on the 19th day of December next, at ten o’clock, A. M., or so much of each as may be sufficient to discharge the said taxes, interest and penalties, thereon due, with the costs that -shall have accrued, unless the same shall be previously paid, to wit, in lots charged to persons unknown.” Then follows a schedule of the "lots by their number, with the tax charged against-each, and in this schedule is included the lot in controversy.

*This notification bears dale at “ Perrysburgh, Wood County, Ohio, November 16, 1826,” and is signed by “Ambrose Price, collector.”

Next follows a Certificate in the following words : “ I hereby certify the amount of taxes, interest and penalties, placed opposite each of 'the town lots, in the within notification, to be the true amount charged in the duplicate therein mentioned," that the same remained unpaid, -and that the said lots were all sold whole and entire, for the said amounts, and legal costs, at vendue, in the said town of Perrysburg, at the time and place in said notification mentioned ; and that said notification was by me posted up as the law directs. Perrysburg, Wood county, Ohio, December 26, 1826. Ambrose Price, collector of taxes, for. Wood county.”

This certificate appears to have been sworn to before a justice of ■the peace, and with the notification, recorded by the recorder of Wood ■county, on the 27th day of December, 1826.

This copy of the record, is, by the seventh section of the before recited act of 1824, competent testimony “ touching those facts,” stated in the notification and certificate. And being competent.evidence, it proves that the notification was posted up according to law, and of course there is legal and sufficient evidence of the publication of the delinquent list.

Prom a careful examination of the whole case, we entertain the opinion, from the facts before us, that the lessor of the plaintiff has a good and sufficient title to the premises in controversy.

New trial granted.


source: Caselaw Access Project

author: Wood, Judge.

license: Public Domain

text:
    Harshman, Rench, and Others v. R. P. Lowe and Others.
    Under the act of 1835, an assignment by a debtor creating a preference among creditors, is void as to the preference, though the fraudulent intent is confined to the assignor.
    Bill in Chancery. Prom Montgomery. The object of the bill is to avoid an assignment by a debtor, giving preference to one set of creditors over others, and to compel the trustee to sell and distribute-the trust property for the benefit of all the creditors of the assignor. The defendants have answered, a replication has been filed, and testimony taken : but inasmuch as a majority of the court do not concur in opinion upon the evidence that the deed is fraudulent as against the plaintiffs, it is unnecessary to state the facts particularly, as the point decided will be understood without.
    *Odlin and Schenck, for plaintiff,
    cited 5 Ohio, 295 ; 2 Dal. 76 ; 8 Ohio. 390 ; 5 Mass. 144.
    C. Anderson, for defendants,
    cited 5 East. 175, 186: 10 Mod. 497; 2 Pr. Wms. 427; 2 Bos. & Pul. 584; 33. O. L. 13; 8 Ohio, 391; 36 O. L. 56 ; 1 D. & E. 156.
   By the Court,

Wood, Judge.

This assignment is controlled by the act amendatory to the act of 1835, directing the mode of proceeding in Chancery, 33 O. L. 13. This act provides that all assignments of property made by debtors to trustees in consideration of insolvency, and with design to secure one class of creditors and defraud others, shall enure to the benefit of all. We hold, in this class of cases, that, although the fraudulent intent is confined exclusively to the grantor, the conveyance is void as to the preference created. This interpretation, we think, conforms both to the letter and the spirit of the act.

A different construction has been put, at Westminster, upon the-statutes 13th and 27th of Elizabeth, and in Ohio, upon the statutes to prevent fraud and perjuries. Burget v. Burget, 5 Ohio, 469. Under these statutes it has been holden, that to avoid a conveyance made to defraud creditors, both the grantor and the grantee must be partakers-of the fraud, or tainted with the fraudulent intent. But here the cestuis que trust are not parties to the assignment, although made for their benefit. Their assent is not essential to its validity. The-trustee, in this ease, has a naked legal interest, with no substantial advantage to himself from its execution, and in such cases, it could not have been the intention of the law that he should also participate-in the fraud, to avoid the assignment.

The ease is remanded for further proof as to the fraudulent intent.


author: Lane, C. J.

text:
    Lessee of Orrin Harmon v. Leonard Stockwell.
    A county auditor had no authority in 1822, to administer an oath to th-t-íaUBly collector to verify his return of the delinquent list.
    A tax title acquired in 1822, is invalid, without the return of the delinquent list by the collector is sworn to before competent authority.
    Ejectmentío recover Lot 4, T. 5, R. 11, in the Connecticut Reserve. From Portage. The case is submitted upon the following facts:— The plaintiff exhibits a deed from the trustees of the Connecticut-*Land Company, to Ebenezer and Fidelio King, and a regular title under it to themselves. The defendant traces his title to' a tax sale made on the 24th of January, 1824, for taxes accruing during the years 1821, 2, 3. The land was listed on the duplicate, during these years, as follows :—
    “ Unknown owners, R. 11, T. 5, & L. 4, 161 acres, 2 rate.”
    The land appears to have been duly described, the taxes regularly assessed, the advertisement properly made, and the several returns from the state auditor regular. The objections taken by the plaintiff are to the return of the county collector. The return of the delin/quent list of 1822, is verified by the oath of the collector, administered by the county auditor.
    T. D. Webb, for plaintiff,
    cited 1 Ch. St. 649, 651; 1 Blk. C. 89; 2 Ch. St. 1106; Mitchell v. Eyster, 7 Ohio ; 8 Ohio, 107 ; 1 Wil. 61 ; 1 Ld. Ray, 68 ; 1 Bibb, 532, 3; 4 Ohio, 45; 11 Mass. 165, 413 ; 13 Mass. 270 . 1 Bay. 338.
    R. Hitchcock, H. Wilder, and R. P. Spalding, for defendant,
    cited, 2 Ch. St. 1186, 974, 1102, 1188, 1194, 1256, 1377; 4 Wheat. 77 ; 7 Cow. 88 ; 3 Ohio, 233; 5 Ohio, 458 ; 8 Ohio, 539; 3 Bibb, 326; 2 Marsh. 244; 6 Munro 207; 1 Ch. St. 651; 9 Cow. 110; 7 Ohio, 2 part, 190, 258, 262; 8 Ohio, 114; 3 Stark Ev. 144, n.; 9 Mass. 312 : 1 Swift Dig. 564 ; 1 Kirby 345 ; 11 Mass. 413, 477, 480.
    D. Lyman, for plaintiff, in reply.
   By the Court,

Lane, C. J.

The statute, 2 Ch. St. 1106, § 30, .requires in terms, that the list of delinquent lands returned to the county auditor during the years 1821, 2, 3, “ shall be attested by such collector on oath.” As the penalties of perjury were intended to be imposed for a false return, it is clear, that the oath must be administered by competent authority. If the auditor at that time possessed no Such power, the list wants an essential requisite which invalidates the tax sale. The power to administer oaths is incidental to no office ■ except the judicial. It must be conferred by statute, either directly, or by implication, or ministerial officers do not possess it. By the statute of 1810, 2 Ch. St. 651, § 17, county commissioners are authorized to administer all oaths necessary to discharge the duties of their office. When this law was passed, it was a part of the duties of the Commissioners to settle with the collectors of taxes. An oath administered, by the commissioners, in a settlement with the delin- ■ quent collector, would be lawful; and if the auditor possessed the same power, the objection is removed.

In 1819, 2 Ch. St. 1102, § 10, the office of auditor was created, the duty of making settlements for taxes was transferred to him, and the •commissioners no longer entrusted with it. The act creating the 'office of auditor, is silent as to any power of administering oaths, except only, he was specifically invested with it in taking lists from the owners of lands, and in examining the collectors of the county tax concerning delinquencies. 2 Ch. St. 1257. The grant of authority in these specified cases sufficiently implies that he possessed it in no ether. In 1821, 2 Ch. St. 1194, “ the duties now done and p'rformed (as the statute expresses it) by the board of commissioners, are transferred to the auditor, except in certain cases, as reserved therein.”' By this act the auditor was empowered to do all which the commissioners could then do, among which was the incidental authority to • administer such oaths as were necessary to discharge the' duties of the commissioners thus transferred. But the power of the commissioners to administer oaths was not general; it was only in cases-necessary in executing their duties, and it was no part of their duty, at that time, to receive the delinquent returns from the collector, nor was this service transferred to the auditor at that time, or by that, statute.

We therefore find no authority, by any of these statutes, enabling the auditor to administer oaths, except in the specified cases, until the-act of 1824. 2 Ch. St. 1377, § 5. The return of the collector, therefore, in 1822, was not under the securities and sanctions which the-law required ; and this omission is fatal to a title held under such strict principles as a tax sale, and supercedes the necessity of looking further into the ease.

Judgment for plaintiff.


author: GRIMKE, Judge.

text:
    *Lessee of Hall and Others v. Ashby & Craven.
    A deed of release is a substantive mode of conveyance in Ohio, and effectually transfers title, notwithstanding an adverse possession at the time of its •- execution.
    A will made in another state, takes effect from the death of the testator, and not from the date of its registry in Ohio.
    The registration of a foreign will in Ohio, is merely, to admit a copy as evidence.
    There is no statute of champerty in Ohio, and the English statutes are foreign ■ to our condition and inoperative.
    Ejectment for lots, 1, 2, 15, *16, and 17, in the 32d S. 8th T. 14th R in the U. S. Military District. From Knox. On trial, the plaintiff traced his title as follows : 1. A patent from the United States to Ludwick Weltner. 2. Weltner’s will dated in 1781, admitted to • probate in Maryland in 1782, devising the land as “ the residue and remainder " of his estate to his daughter, Mary Henop, in fee. 3.. Mary Henop’s will, dated Oct. 1820, admitted to probate in Virginia, in the same year, devising tbe lots to her grandson, F. L. Henop : and 4. A deed of release from F. L., Henop to Hall, and his deed of an undivided third to his co-plaintiffs. Both the wills were admitted to record in Knox county, the 14th of March, 1838, and also proof that Mary Henop was sole heir of L. Weltner. The defendants proved that when F. L. Henop conveyed to Hall, and Hall to his co-partners, the defendants were in possession, holding adverse to Henop : that Philip Henop was a son and heir at law of Mary Henop : a deed from the sheriff of Knox county to Jasper Cope, under a sale on execution upon a judgment in foreign attachment commenced by Cope against Mary, Philip, and John Henop, which was advertised but six weeks, and the sale made under a venditioni exponas, no fi. fa. or other order of sale having issued. But after sale, the court confirmed the proceedings. The defendants deduced a regular chain of title from Jasper Cope to the defendants. Upon these facts the court directed the jury to find for the plaintiff, which they did, and the defendants move for a new trial, assigning for cause, error of the court: 1. In admitting the release from F. L. Henop to Hall as a conveyance, he being out of possession, and 2. In holding the devise from Mary Henop superior to the title of Jarvis under the attachment without notice of the devise.
    C. B. Goddard and C. 0. Convers, for the motion.
    1. Does the deed from F. L. Henop convey any title ? The deed we hold void at common law, as a release to one having no title before. Co. Lit. 214, a. A release is a conveyance of a right to a person in possession. 1 *Cruise D. 97, ch. 6, § 21, 23; Shep. T. 324, ch. 19; 4 Cruise D. 96, 106, 109, ch. 7, § 1, 9 ; 3 Dane Ab. 139; 7 Cow. 255.
    2. The sale under a judgment against the heir in 1822 to a bona fide purchaser without notice of the will, conveys a better title than was passed by the Maryland will of 1820, not recorded in Ohio till 1838. Sug. Ven. 685, 6 ; Poole v. Fleeger, 11 Pet. 185, 211; Wilson’s Ex. v. Tappan, 6 Ohio, 174; Holdfast v. Clapham, 1 T. R. 600; 4 Kent. C. 338; Heath v. Ross, 12 Johns. 140; 29 O. L. 240.
    H. Stanberry, contra.
    1. The words of conveyance used in the deed to Hall, release and quit claim, are in common use in conveyancing in this state, and sufficient to pass title, as operative words of conveyance, to a stranger having no precedent title. Our conveyances are distinguished into deeds of warranty and deeds of quit claim, and wre use the latter term as synonymous with a deed without warranty. 'Taking the whole deed together, it is clear the grantor intended to convey to Hall all the estate he derived from the will. 2 Hilliard Dig. 364; 7 Conn. 255. The common law rule as to maintenance is not accommodated to our circumstances ; its reason does not prevail here. 2. Both foreign and domestic wills take effect from the death of the testator, or from their admission to probate, which is a judicial act, while the mere record in Ohio of a foreign will is a mere ministerial act, affecting the proof, but in no way affecting the time at which the devise takes effect, the proof being made. 8 Ohio, 247. The probate does not make the will — the estate is not in nubibus or in gremio legis, between the death and the probate ; nor in abeyance ; nor yet in the heir ; for it has been devised away from him, in the devisee, though inoperative as to purposes of evidence, until the will is proven and recorded. Poole v. Fleeger, 11 Pet. 185.
   By the Court,

GRIMKE, Judge.

The questions arising in this case are : 1. Is the deed from F. L. Henop to Hall, a valid conveyance of the land ? and 2. Is the title derived through the will of Mary Henop, ■superior to that of the purchaser at sheriff’s sale, the will not having been recorded in Ohio until 1838 ?

With regard to the first point, it has been argued, that inasmuch as the deed from F. L. Henop is a deed of release, which presupposes the possession of the releasee, it was intrinsically ineffectual to transfer the title; and this is true, if that mode of conveyance is governed ■*by the same rules which are applied to it in England. There, in order to give effect to the deed of release, it is first necessary to execute a lease, (or bargain and sale for a year,) which by force of the ■statute of uses puts the lessee or bargainee in possession, and being thus in possession, although by a mere fiction, the release operating by way of enlargement of the estate, is effectual to transfer the entire title. So artificial a machinery for the purpose of effecting an object ■so very simple, we have always considered unnecessary in this state. The release is regarded here as a substantive mode of conveyance, and equally with the deed of quit claim, is adopted where it is intended to •convey the land without warranting the title. But even if the deed in this instance, could not operate as a release, it might have such construction put upon it, that it should operate in some other way. Thus a deed intended as a bargain and sale has been construed to be a ■covenant to stand seized to uses, and a covenant to stand seized has been construed to be a bargain and sale.

But it is argued, in the second place, that a conveyance to the plaintiffs, while the defendant was in the adverse possession of the land, was-a void act, and that no title could he derived under, the deed. But we have no statute against champerty in Ohio. All the English statutes have grown out of peculiar exigences, which are almost entirely foreign to our condition and habits. Sometimes they were passed at the close of a signal revolution, when the property of the kingdom-having, to a great extent, changed hands, it became the interest of those-who succeeded to power, to place every possible obstacle in the way of the former proprietors’ recovering possession. After the introduction of uses, buying what were called pretended^ rights and titles became, very common, and this gave rise to one of the last statutes on the subject, that of the 32d H. 8, which prohibited the practice under the penalty of forfeiting the whole value of the land. Both of these-classes of laws were adapted to a state of society very different from what prevails here. So far from opposing obstacles to the transmission of land, we have endeavored to render it as free as possible. The-simple prohibition of selling land, where the vendor has not a title to it, 29 O. L. 142, has set bounds to the only real inconvenience and mischief which has sprung from the practice of champerty.

The remaining question is more difficult than the two preceding ones ; but it will admit of but one answer. We have no law, which properly speaking, requires the registry of wills. The probate and' the order admitting the will to record, are judicial acts, and are neither-*of them intended to give notice to persons who may claim title adverse to the will. In England, the registration of wills is required whenever they happen to affect personal estate, but never if they relate to real property only. The reason of this is, that it is, impossible to fix an express period for registering them, in consequence of" the absence, legal incapacity, or future interest of the devisee. The. most that has been attempted to be done, is to declare that a registry should be made before any action should be brought by the devisee. No-one supposes that in the case of a will made in Ohio, the title of the devisee takes its inception in any case from the period that the will is recorded : but.it is argued that such must be the case of a foreign will. The difficulty, however, which exists in creating a registry of domestic-wills, is even increased in the case of foreign ones, and no good reason can be assigned why, at any rate, the same rule in this respect should-not be applied- to both. The law requires the probate and record of a domestic will,. 8 Ohio, 18, but the record of the foreign will is not intended to give publicity to the proof of it. nor to give, notice of the title acquired under it. It is to permit a certified copy to be given in evidence, when it would be difficult or impossible to produce the original. In England, a will on a trial concerning real property devised by it is required to be proved precisely like a deed. The probate there has no relation to the realty, but only to the personal estate. In Ohio, it has relation to both, and the record which is consequent upon the probate, and which is very different from a registry in England, or of deeds, enables a copy to be given in evidence whenever a controversy arises concerning the property devised. • It is evident that it is impossible to carry the provisions of the law any farther. A deed is committed to the custody of the grantee, who may record it whenever he chooses ; but a will is placed in the hands of the executor, who may have no interest, or at any rate a very remote one, in the real property devised. This alone renders it absolutely impracticable to establish a registry of wills similar to one of deeds.

On the whole, we are of opinion that the deed to the plaintiffs, notwithstanding its form, and although the defendants were at the time in possession of the land, was effectual to transfer the title, and that this admission of the will to record was not necessary to perfect the title of the devisee ; that his title commenced at the death of the devisor, and avoids the title under which the defendants claim.

Judgment for plaintiffs.


author: Hitchcock, Judge.

text:
    *Young and Van Horne v. Whitton and Fullerton.
    A certificate given by a commissioner of insolvents under the seventh section of the insolvent law, to a debtor who has given bond for the prison limits, discharges the security on the bond, notwithstanding the proceedings are afterwards dismissed in the Common Pleas.
    There is no other difference between the effect of a commissioner’s certificate and the final discharge, except that the first discharges for a limited time, and the latter forever, from all debts named in the schedule. The discharge in either case is a legal one.
    Debt. From Hamilton. The declaration recites a capias from the Common Pleas, on the 2d of October, 1832, against one Johnston, the defendant, his arrest, committal to prison, and discharge upon giving
      ;& bond for the jail limits, a judgment for three thousand seven hundred •and forty-four dollars and fifty cents, in the suit at April term, 1833, :and assigns for breach, that Johnston left the prison bounds' the day he was committed. Plea, that on the 14th of May, 1833, Johnston applied to the commissioner of insolvents, took the oath, etc. gave bond to appear at the next term of the Common Pleas, and was discharged by the commissioner’s certificate, under the seventh section of the in■solvent law, wherefore he left the bounds. Replication, that after the proceedings before the commissioner, at August term of the Common Pleas, in 1833, Johnston’s petition under the insolvent law was heard and dismissed, and thereafter Johnston left the prison bounds the next day, and remained out. To this there is a general demurrer, which is joined.
    N. Wright, J. C. Wright, and T. Walker, for plaintiff.
    B. Storer, and 0. Pox, for defendant.
   By the Court,

Hitchcock, Judge.

Two questions are raised by the pleadings in this case. 1st. Whether a certificate by a commissioner of insolvents under the seventh section of the act for the relief of insolvent debtors, operates to discharge a person, who has been previously imprisoned and admitted to the jail limits, from such imprisonment ?

2nd. Whether, where a person thus imprisoned, remains within the limits until- his application for the benefit of the act shall have been heard by the court of Common Pleas, and dismissed, and afterward escapes, his sureties can be made liable upon the prison bounds law ?

The condition of this bond as prescribed by law is, that the prisoner shall continue “ in the custody of the jailor, within the limits of said * prison bounds, until legally discharged.” If the prisoner is discharged by the act of his creditors, or by the act of the law, the condition of the bond is saved, and his sureties can not be made liable.

The act for the relief of insolvent debtors, in the seventh and eighth sections, provides for two distinct classes of insolvents. The seventh section refers to persons who shall have resided in the state two years, and in the particular county in which the application is made for the benefit of the act, for six months next preceding such application. 29 O. L. 330. Such person, being desirous of having his body exempted from imprisonment, may at any time make his application to the commissioner of insolvents. The eighth section, refers to any person who “ shall be arrested or be in custody of any sheriff or other officer, on mesne on final process, in any civil action,” whether such person be a resident of the state or not. Such person, being so arrested, may apply to the commissioner of insolvents, for the benefit of the act, and it is made the duty of the officer having him in custody, to take him before the commissioner for this purpose.

In the sections which follow, to the twentieth, the mode of proceeding before the commissioners is pointed out, varying in some few particulars, in consequence of the application having been made under the seventh or eighth section. It is unnecessary, however, in the present case, to have any reference to these variations.

In the twentieth section it is provided,that when any person shall apply to the commissioner, and shall have complied with the foregoing provisions of this act, the commissioner shall give to the applicant a certificate of his having so complied : and it shall be specified in the certificate, whether such application was made pursuant to the seventh or eighth section of this act.” In the twenty-first section, the effect ■of this certificate is declared. It “ shall protect the person of the applicant from a.rrest or imprisonment, for any debt or demand in any civil action, at the suit of any person named in his schedule, until the second day of that term of the court of Common Pleas to which the commissioner shall return copies as herein after provided.”

It will be seen that although it is the duty of the commissioner to ■certify whether the proceedings were under the seventh or eighth sections of the act, still the effect of the certificate is the same in either case. That effect is to “ protect the person of the applicant from arrest or imprisonment.” Is a person upon the prison limits, imprisoned ? The condition of his bond, according to the act regulating prison bounds, is, that he shall continue in the custody of the ^jailor,” 29 O. L. 340, and in law, the prison bounds are but an extension of the walls of the prison. As the effect of the commissioner’s certificate is to protect him for a limited time at least, “ from imprisonment,” and inasmuch as at the time the certificate is issued, he is already imprisoned, it would seem that the law must he so construed, as that the effect of the certificate would be to discharge him from such imprisonment.

If there is any doubt as to the propriety of this construction, such doubt must be removed by a further examination of the act. From the twenty-first to the thirty-fourth section, further duties are imposed -upon the commissioner and upon the insolvent, and the course of proceedi'ng in the court of Common Pleas is prescribed. By the thirty-fourth section, that court is authorized, upon final hearing, to grant tor-the applicant a certificate, which certificate, according to the thirty-sixth section, “ Shall protect the person of such petitioner forever after,, from, arrest or imprisonment, for any civil action, debt or demand, named in the schedule of his debts, made before the commissioner” in the manner previously provided in the act. And this section further provides, that if any sheriff or other officer, shall arrest any person having been so discharged by the court, such officer having'knowledge of such discharge, and that the person so arrested has a certificate, so" granted him by the court, or shall refuse to discharge the person so arrested, out of his custody, as soon as such certificate shall be produced and shown to him,” the officer so offending shall be deemed-guilty of a trespass, and shall be liable to an action at the suit of the party injured. It would be defeating the obvious intention of the law, to hold, that this final certificate, Would not operate to discharge a-debtor already imprisoned from that imprisonment, nor do I understand the counsel for the plaintiff as contending that it would not have* this effect. It' will be seen, that there is no difference in the law as to* the effect of this final certificate and the commissioner’s certificate, except that the first operates “ to protect from arrest and imprisonment,” forever after it is granted, while the latter protects “ from arrest* and imprisonment,” only for a limited period.

It is unnecessary, however, to rely alone upon construction. In the* twenty-second section of the act, it is expressly provided, that when the insolvent shall produce the certificate of the commissioner to any* officer in whose custody he may be, or who shall have civil process-against him, the officer shall forthwith discharge him out of his custody.”

*The next question raised by the pleadings is whether, where a-person remains within the prison limits after he has received the commissioner’s certificate, and until his application has been heard and dismissed by the court, and afterward escapes, his sureties can be made liable upon their bond. The condition of the bond is, that the principal “ shall remain in the custody of the jailor, within the limits of' said prison bounds, until legally discharged.” The certificate operates as such legal discharge, and after it is granted, the jailor has no right longer to detain him in custody. And the debtor being legally discharged, the condition of the bond is saved. That the application is fraudulent, and on that ground dismissed, can make no difference with-the sureties. That the debtor chose to remain within the limits of the prison while his application was pending, can not affect their rights. Having been once “ legally discharged,” they must be protected from .all liability on the bond.

The replication is insufficient, and the demurrer must be sustained.

Judgment for defendants.


text:
    Tomlinson and Sperry v. Henry Warner.
    •■Case will lie for falsely and maliciously suing out a writ of attachment against the plaintiffs’ effects to their injury, though it be admitted they were indebted to the defendant.

      Jl creditor’s false affidavit, that his resident debtor absconds is not probable cause for issuing an attachment against his effects.
    Malicious Prosecution. Prom Licking. The plaintiffs declared, that they were residents of the town of Newark, and possessed of a large amount of personal property, deposited in a ware house to be forwarded to New York for a market; and that the defendant, well knowing the premises, and that the plaintiffs had not absconded, but •contriving and maliciously intending wrongfully to injure them, made • oath before a justice of the peace, that they had absconded to the injury of their creditors, as he verily believed, and thereupon sued out of the .court of Common Pleas, a writ of attachment, and caused the •said property to be seized by the sheriff, and held for a long time, whereby the same was injured, the plaintiffs deprived of the opportunity of forwarding their goods to a market, and greatly injured. Plea, mot guilty.
    Upon trial to the jury, the counsel for the plaintiffs admitted that the plaintiffs were indebted to the defendant at the time of his ^affidavit, as sworn to in it; whereupon the court directed a non-suit, with leave to move to open it, and for a new trial, which is now made.
    Geo. B. Smythe, and H. H. Hunter, for plaintiffs,
    insisted, that -the admission of the indebtedness of the plaintiffs, which might have constituted probable cause for an ordinary suit, did not destroy this action, the gravamen of which is, that the defendant maliciously and -withoutprobable cause, procured to be issued by his own false affidavit, an unusual and oppressive hind of process, not adapted to the legal liabilities of the parties, to effect a malicious purpose. He cited Swan v. Saddlemire, 8 Wend. 680; 1 Ch. Pl. 133, 4; Sutton v. Johnstone, 1 T. R. 503; Rogers v. Brewster, 5 Johns. 126 ; Bul. N. P. 11, 12, 13 ; Goslin v. Wilcock, 2 Wils. 376 ; Smith v. Cattel, 5 Wils. 376 ; Wicks v. Fentham, 4 D. & E. 247 ; 1 Str. 690 ; 4 Serg. & R. 17; Reynolds v. Kennedy, 1 Wils. 233 ; Pangburn v. Bull, 1 Wend. 351; Chapman v. Piskerville, 2 Wils. 145.
    T. Ewing, H. Stanberry, and J. R. Stanberry, for the defendant,
    insisted, that to sustain this suit, the action by the defendant must have been not only malicious, but without prohable cause, and that the existence of the debt was cause of action ; the defendant only mistook his remedy. 10 Johns. 106; 1 Wend. 345; 1 Salk 14; 1 B. & Pul. 205 ; 1 Ch. Pl. 136; Wheat. Sel. 809.
   By the Court,

Wood, Judge.

The only question presented in this motion is, do the facts set forth in the declaration constitute a legal cause of action, provided the plaintiffs were indebted to the defendant, when he sued out the writ of attachment ?

In Connecticut, there is a statute which provides, that where a. plaintiff shall “ willingly and wittingly,” wrong any defendant by prosecuting any action against him with intent wrongfully to trouble and vex him, such plaintiff shall pay treble damages for the first offence, be liable to a fine for the second, and for the third, may be proceeded against as a common barrator. Judge Swift thinks the act founded in the clearest principles of justice. Swift Dig. 493. At com.mon law, it seems well settled, that no action will lie for a malicious prosecution of a civil suit, without cause, where there is no arrest. 1 Salk. 14. The costs allowed in all other cases, are supposed to be a sufficient compensation for the injury, however ^malicious. The-rule itself may perhaps be admitted, but the reason on which it is said to be founded, can not be so readily admitted, for at common law, no-costs were allowed. If the plaintiff failed, he was amerced for his false clamor, and if he succeeded, the defendant was at the mercy of the king. But at common law, whenever there was an arrest, holding to bail, or imprisonment, where no debt was due, or for a greater sum than was due, with a malicious intention to injure, the action lay for a. malicious arrest. 1 Saund. 228. The action for a malicious prosecution, which, technically, only applies to cases of malicious prosecution of criminal complaints, lies as well where there is not, as where? there is an arrest; and the grounds of the action are the malice of the-defendant, want of probable cause, and injury to the plaintiff’s person by imprisonment, his reputation by scandal, or to his property by expense. 1 Swift D. 491. Having no direct adjudication on the question before us, we may look to the analogies of the law. The counsel for the defendant insist that because the plaintiffs’indebtedness to the defendant in the former suit is admitted, there was probable cause for suing out the writ of attachment. This does not seem to us to follow. To constitute probable cause for suing out a writ of attachment, the law requires an affidavit of indebtedness, and also that the debtor has absconded, or is non-resident. The absence of either is absence of probable cause for the writ, and the false affirmation of either fact, knowingly, as a means of procuring the writ, shows express malice, whilst the taking of property without cause, is a sufficient injury to sustain the action.

In the Supreme Court of New York, it has been decided, that case would lie against both plaintiff and defendant, for fraudulently setting up the judgment as unsatisfied, when in fact paid, and causing an execution and sale of land once held by it as a lien, but which had been afterwards conveyed by the defendant to a third person. The court in that case say, “ if it appear that the unlawful acts of the defendant occasioned trouble, inconvenience, or expense to the plaintiff, this action lies.” The general rule is, that for every injury the law gives redress ; and it would be a reproach to the administration of justice, if one, by perjury, could take from another the control of his property, under form of law, and the law afford no remedy. Nice technicalities) are sometimes applied to get rid of a hard ease ; but when, under form of law, opportunity is sought to gratify malice, to the injury of another, courts will not be astute to avoid, but rather seek ground to sustain an action. We have no facts in this case, ^before us, but the statement in the declaration, and the admission of indebtedness ; but these show a sufficient prima facia cause of action, and cause for opening up the nonsuit.

New trial granted.


author: Lane, 0. J.

text:
    William Carpenter v. Allen Kelly.
    A surety receiving securities as an indemnity,, is protected from loss if he manage them with prudence, good faith, and integrity.

      Such surety receives indemnity in trust for himself and co-security, and no change of the indemnity made in good faith, will discharge his co-security from contribution without he show consequent loss.
    Notice of the payment of the debt by a surety, is necessary to constitute a right of action against a co-security, for contribution.
    Error to the Common Pleas of Delaware. The suit below was by Kelly against Carpenter and his co-security for Thorpe, for a contribution. The plaintiff proved the giving of a note by W. and A. Thorpe, and the defendant and himself as sureties, for fifteen hundred dollars, which the plaintiff had paid, and that the Thorpes were compounding their debts by paying and securing fifty cents on the dollar. In defence it was shown, that soon after the debt was contracted, the Thorpes placed in the hands of Kelly, as security for his liability, certain notes against Leonard and others; that on Kelly’s enquiring of the maker, as to their intention and means of payment, he was assured that payment would soon or ultimately be made ; and payment of the security, notes was, in fact, made soon after. But before the notes were paid, Kelly, at the request of the Thorpes, returned them, receiving as security in lieu of them a bond of indemnity against their responsibility for the debt. At the time of this change, Carpenter lived near, but it was not shown that he was consulted; nor was there any evidence of a demand upon Carpenter by Kelly after payment. The court below thereupon charged the jury, that if Kelly abandoned his right to a contribution against Carpenter, he could not recover, but that the change of security would not of itself discharge him, if Kelly acted in good faith and with common prudence, unless he intended to abandon'his claim : that the omission to consult Carpenter would not affect Kelly’s right to recover, if it arose from a belief in Carpenter’s insolvency : and that no demand was necessary, before suit. The plaintiff had judgment, and these facts appearing in a bill *of exceptions, it is assigned for error that the court erred in charging jury in the above particulars.
    T. W. Powell, for plaintiff in error.
    The principle is, that a co-security, or principal, who has in his hands the means of satisfaction, and suffers it to pass out without the consent of the others interested, can not call for a contribution. Theo. on Prin. & S. 95, 98. He is held as trustee for all the parties interested. The Com’th v. Miller’s ad. 8 Serg. & R. 457; Barber v. Briggs, 8 Pick. 129; Haynes v. Ward, 4 J. Ch. 129; 4 Vesey 829; 2 Cox 86; Lichtenthaler v. Thompson, 13 Serg. & R. 157. A previous demand was necessary. 1 Ch. Pl. 360, 2, 3; 2 Saund. 32 ; 1 Leigh’s N. P. 120 ; 1 Taunt. 571; Cook v. Feval, 13 Wend. 287 ; 5 T. R. 409 ; 2 Stark Ev. 774; 2 Sand. Pl. & Ev. 193 ; 2 Pick. 125; 4 Dane Ab. 406 ; Williams v. Williams, 5 Ohio, 446 ; 20 Johns. 586 ; Wood v. Pugh, 7 Ohio, 162; 2 Barn. & Cres. 682.
    0. Swan & Watson, contra,
    contended that Kelly held no trust. They commented upon the authorities cited by Powel, and sought to •distinguish this case from those. Holding no trust for Carpenter’s separate account, Kelly is not answerable to him, for any loss in the change of securities, ¡nadé in good faith. He is only answerable for what has been actually received. 17 Mass. 464; 6 Mason 188 ; 6 Cranch 268 ; 1 Wash. C. C. 278, 455 ; 3 Caine, 174; 6 Cow. 185. As to the notice, the 5 Ohio, 455, conclusively shows the notice unnecessary, except in case of numerous small payments. Cage v Foster, 5 Yerg. 261.
   By the Court,

Lane, 0. J.

The first question in this caséis, whether a surety, who has received securities from his principal, and who in good faith has exchanged them for others, without the consent of his co-surety, thereby discharges him from contribution ? A surety is not bound by law to seek indemnity; yet if the means of indemnity are placed-in his hands, and he undertakes to. retain them, he becomes a trustee for his co-sureties, because they enure to their common benefit, ■and he is bound by the obligations which attach to a trustee to use honesty, good faith, and due discretion, in their management. He may not abandon them without cause, nor negligently omit the steps necessary to render them available. But if they require the exercise of judgment in their management, he is to be protected like .a trustee, ■who acts with integrity and ordinary prudence.

* Kelly, in the present case, is represented as taking notes, which upon enquiry he was led to believe would be ultimately, but not punctually paid. The manner of collecting debts, under such circum-stances, must be a subject of discretionary power, and involve expenses and risks which he might not willingly undertake. If under these circumstances, he chose to restore them to the principal, on receiving other security which was satisfactory to him, and which no evidence •showed was inferior to the indemnity released, this exchange ought not to preclude him from his remedy. It would have been prudent in -him to have obtained the assent of his co-surety, but he was not bound to seek him, and his acting without it is no release of his co-surety, unless shown to have been to his prejudice.

There is nothing in the charge of the court, not in accordance with these principles. The defendant below assumed to make a defence; he undertook to show, either that Kelly had directly or indirectly discharged him, or that he had negligently or improvidently mismanaged 'the trust. These points are properly placed before the jury in the charge.

The bill of exceptions shows that the court also instructed the jury, that no demand was necessary to give the right of action. I suppose by this it was intended to say, that no notice was necessary. We think, in this, the court committed an error. Carpenter was not originally, and by his own act, a debtor of Kelly, but became so by Kelly’s payment of the debt. No liability so constituted arises, until notice of this payment. It is therefore a material fact to establish a right of action. This point was adjudged in Williams v. Williams, 5 Ohio, 446.

Judgment reversed.


text:
    Lessee of George Parker v. Theodorus Miller and Others.
    Tinder the attachment law of 1810, the title acquired by the purchaser at auditor’s sale, is preferable to the title of an alienee of the judgment debtor, by deed executed more than one year before the service of the writ of attachment,' but not recorded.
    "Where the Record in the attachment does not show that notice of the pendency of the suit had been advertised, the fact of publication may be proven by parol.
    Ejectment for a tract of land in T. 8, R. 3, in the Connecticut Reserve. From Ashtabula. The case was submitted in the county upon agreed facts, and evidence.
    *Both parties claim title under Solomon L. Fuller, who, on the 23d of February, 1811, was seized of the premises in controversy, in fee simple. On that day, Fuller, by deed of quit claim, conveyed to Apollos Griswold. This deed was not recorded until June, 1813, more than two years after its date. At the time of the execution of this deed, both Fuller and Griswold were non residents of the state of Ohio, and have so continued ever since. On the 23d of September, 1837, Griswold conveyed the same land by deed to George Parker, the lessor of the plaintiff. This deed was duly recorded. This constitutes the evidence of title in the plaintiff.

      The defendants derive title under the attachment law of Ohio, of 1810. On the 19th of June, 1812, Zadoe West prayed out a> writ of attachment, against Solomon L. Fuller, in virtue of which, the lands in controversy, were attached on the next succeeding day. This suit was prosecuted to judgment in due course of law. Auditors were' appointed to examine and adjust claims which might be exhibited against the attachment debtor. These auditors reported to the court-of Common Pleas from which the attachment was issued, their report was confirmed by the court, a judgment rendered thereon, and the land attached ordered to be sold. The land was sold accordingly, and purchased by Hosea Brown ; and a deed made to him by the auditors on the 3d day September, 1813, which was recorded on the same day. On the 17th day of November, 1813, the auditors made their final report to the court, showing the sale of the land, and the distribution of the funds arising therefrom.
    The defendants deduce title from Brown, by deeds duly executed and they and those under whom they claim, have been in actual possession many years, and since 1813, the taxes have been paid by Brown and his alienees.
    The record in attachment does not show that notice of the pendency of the suit was given according to the law then in force, although in the bill of costs, there is an item taxed as the fee for advertising. To supply this supposed deficiency, however, it is agreed that in point of' fact notice was given, provided such notice can with propriety be proved, aliunde the record.
    E. Wade, and Ranney, for plaintiff,
    cite the following authorities, to wit, 7 Ohio, 259, 274; 2 Kent Com. 91 ; 19 Johns. 40 Ohio, Con. 696; Wright, 209, 566; 4 Johns, 216; 13 do. 471; 4 Cow. 605; 2 Bin. 46, 497; 1 Ohio, 257; 5 Ohio, 181; 7 Ohio, 69, pt. 1; 2 Ch. Cranch, 355 ; 3 Cranch, 73; 5 Day *80 ; 3 Bin. 400 ; 1 Dal. 3, 430; 4 Dal. 279; 3 Mass. 558.
    T. D. Webb, R. Hitchcock, and Wilder, for the defendants,
    cited the following cases ; 1 Ohio, 326 ; 3 Ohio, 306, 562 ; 4 Ohio, 130, 131; 5 Ohio, 520, 524; 7 Ohio, 107 ; 3 Ohio, 257, 325, 561; 7 Ohio, 200, 259; 3 Mass. 399; 10 Mass. 105; 5 Pet. Cond. 244; 10 Pet. 449; 2 Pr. Wms. 491 ; 1 Swift Dig. 94; Jer. Eq. 377 ; 3 Brown Ch. Ca. 571; Kirby, 103 ; 1 Root, 388 ; 2 do. 287; 5 Day, 207 ; 8 Conn. 549; 8 Mass. 113, 230, 433, 439 ; 11 Mass. 156, 204; 6 Bin. 119; 2 Verm’t, 544; 12 Wheat. 179: 15 Wend. 588: 4 Bibb. 78; 7 Ohio pt. 1, 69 ; 2 Bin, 40 ; 3 Yeates, 186 ; 1 Ohio, 295 ; 2 Bibb, 416, 421; 7 Monro, 261; 3 Marsh, 12 ; 1 Marsh, 310 ; 4 Littel, 272 ; 6 Monro, 192.
   By the Court,

Hitchcock, Judge.

There being no question in ■this case, but that Fuller had title to the premises in controversy, and that his .title was conveyed to Griswold, it is clear that the plaintiff must'recover, unless this title is defective by the proceedings in attach.ment.

On the part of the defendants, it is claimed that the proceedings are valid, although irregular, and that they can not now be impeached for •irregularity, for two reasons : 1st. Because it is too late to reverse them in error. 2nd. They can not be impeached collaterally.

It is further claimed that an attachment is a specific lien which ■holds from the time the land is attached, and is to be preferred to any deed, although dated and acknowledged before the service of the attachment, provided the deed is not recorded within the time prescribed by law.

On the part of the plaintiff, it is claimed that the proceedings in attachment are utterly void, because first, no property of the attachment debtor was seized in attachment, and without such seizure of property, the court issuing the writ, could not acquire jurisdiction of the subject matter. 2nd. The court issuing the writ, had no juris-diction to render judgment, until the notice required by law of the pendency of the suit, had been given, and the evidence that such notice had been given should appear of record. If it do not appear of record, the deficiency can not be supplied by parol proof, or proof aliunde the record.

It is further contended, that, even admitting the proceedings in attachment to be of binding force and validity, still the title of the *plaintiff remains good, inasmuch as the deed from Fuller to Griswold, although not recorded within the time limited by law, was in fact recorded before the judgment in the court of Common Pleas, .and the sale to Brown.

The position assumed by the defendant’s counsel, that the proceedings in attachment can not now be reversed for error, nor impeached collaterally, is correct, if the fact be established that the court of Common Pleas in which those proceedings were had, had jurisdiction of the subject matter. This position does not seem to be controverted by the counsel for plaintiff. On the contrary, the first objection by them ■made is that the court had no jurisdiction. And this objection lea'ds to the enquiry' as to what was necessary to give the court jurisdiction. This subject is regulated by statute, and at the present time, in ordinary proceedings, according to the course of the common law, a court, acquires jurisdiction of a particular case, if the matter in controversy be within its jurisdiction, by the service of process upon the peison of the defendant, or that which is equivalent thereto. Although at the time these proceedings were had, if the person of a defendant could not be found, a plaintiff might have an attachment against his-lands, tenements, etc. and upon the return of the sheriff that the lands, tenements, etc. had been attached, he might proceed and recover judgment in the same manner as if personal service of process had been. made. 1 Ch. St. 712.

But the proceedings in the case now under examination, were not according to' the course of the common law. They were under the act of February 14, 1810. “ allowing and regulating writs of attachment.” 1 Ch. St. 672. This act contemplated proceedings against both absconding and absent debtors. In either case they were substantially the same, with the exception of the form of the affidavit, which was in all eases required to be filed previous to the issuing of the attachment. Upon the filing of the affidavit, it was made the duty of the clerk to issue a writ of attachment, directed to the sheriff or coroner, as the case might require, “ commanding him to attach the lands, tenements, goods, chattels, rights, credirs, moneys, and effects of the-, debtor, wherever they might be found.” It was then made the duty of the officer to whom the writ was directed, to seize upon the property of the debtor, and dispose of the same as in the statute provided, and'make return of his doings to the court from which the writ issued.

Now it is clear that if there was no property which could be attached, and the officer should so return, the court would have no-^jurisdiction to proceed further in the case. In the case of Mitchell v. Eyster, 7 O. R. 257, it is said by the court with respect to proceedings in attachment, 11 the facts necessary to attach jurisdiction at the commencement of the suit were, the indebtedness of the defend» • ant, his non-residence, and the actual levy of the attachment upon property owned by him-, or in his hands, subject to the payment of the - debt.sued for.” It will not be sufficient that the attachment is levied upon property belonging to third persons, it must be the property of the defendant. Evans v. Justice, 7 O. 273.

In the case of West v. Fuller, now under consideration, there is no ■ controversy but that Fuller was indebted, and that the proper affidavit wag filed. But the objection is made that the property attached was not the property of Puller, but of Griswold, it having been conveyed to the latter on the 23d of February, 1811, whereas the attachment was not levied'until the 20th of June, 1812. This objection raises the question whether the lands in controversy, under the circumstances of the case, were liable to be attached as the property of Puller.' This is a question of very considerable difficulty, and one with respect to which we have had serious doubts, but have come to the conclusion that they were thus liable.

.There can be no doubt but that as between Puller and Griswold, the title was vested in Griswold ; but how was it with respect to third persons ? The deed conveying the land to Griswold, was executed on the 23d of February, 1811, but it was not recorded until the 1st day •of June, 1813. It was executed without the state of Ohio. The act of the- 12th January, 1805, providing for the execution and acknowledgement of deeds,” 1 Ch. St. 484, provides in the 4th section, that deeds executed without the state of Ohio, for the conveyance of lands within the state, shall be recorded in the county where the land lies, within one year after the day of execution, and if executed within the state, within six months after the day of execution, and if not so recorded, “ the same shall be deemed fraudulent against any subsequent bona fide purchaser or purchasers, without knowledge of the existence • of such former deed or conveyance.” This law of 1805, differs from the present law, relative to unrecorded or unregistered deeds in this ■particular : the present law contains a proviso, that such deeds may be recorded,” after the expiration of the time prescribed, and “from the date of such record shall be notice to any subsequent purchaser; the law of 1805, contained no such provision. 29 O. L. 248.

Under this law of 1805, if a deed was not recorded within time, *and the grantor should convey the same land to another person, the first conveyance, as to the second grantee, would be void, and the legal title would vest in him. If Puller, after the expiration of the year from the date of the deed to Griswold, or even within that time, had conveyed the land in controversy to Brown, the title would have been complete in him, unless it could be proven that he had actual knowledge of the existence from the former deed. Prom this it will be seen, that although as between Puller and Griswold, the title was in ■Griswold, yet as to any other person, not having knowledge of the former deed, Puller could make a good and valid title. The 13th sec•tion of the attachment law of 1810, prescribes, “ that every bargain, sale, assignment, and conveyance, made by the said auditors, or any two of them, by virtue of the authority herein granted, shall be as binding and effectual, as if the same had been made by said defendant, prior to the service of said attachment.” The attachment was served on the 20th of June, 1812. At and prior to that time, as we have already seen, Griswold could have made a conveyance “ binding and effectual,” to vest title, and according to the section above quoted, the eenveyance of the auditors, under the attachment law, must be held to be as “ binding and effectual,” as a conveyance made by him.

From these considerations, we have been led to the conclusion before stated, that the land in controversy was, under the circumstances, liable to be attached as the property of Fuller.

It is further contended by the counsel for the plaintiff, that the court of Common Pleas had not jurisdiction to render judgment in the case, until the notice required by law of the pendency of the suit had been given, and therefore that the judgment is void. This objection raises the question, whether under the law of 1810, a court acquired jurisdiction by the service and return of the writ of attachment, or in consequence of the advertisement of notice, which was an act subsequently to be done. For some purposes it must be manifest that the jurisdiction was acquired before the publication of the advertisement. This"advertisement was, upon the return of the attachment, to be made out by the clerk of the court, and it was the duty of the plaintiff, within thirty days after the return of the writ, to cause the advertisement so made out, to be published in one of the newspapers printed in the state, and nearest to the place where the attachment issued. If the plaintiff failed in having the notice published, it was made the ■duty of the court to dismiss the attachment at his costs.

At the return term of the writ, and of course before the notice could *have been published, it was the duty of the court to appoint auditors to adjust the claims of the attaching creditor, and of .such other creditors as might be presented. And upon the report of these auditors, the court was required to render judgment. For the purpose of appointing auditors, and for other purposes specified in the :act, the court must of necessity have exercised jurisdiction, before the notice could have been given. Under these circumstances, it is a •serious question whether the failure to give notice, and have the proof of it inserted in the record, is mere matter of error, or matter which goes to the jurisdiction. If mere matter of error, it can only be ■reached by writ of error, and can not be set up collaterally to impeach the judgment. In the case of Mitchell v. Eyster, 7 Ohio, 257, it was* held that the facts of the indebtedness of the defendant, -his non-residence, aDd the actual levy of the attachment upon his property, gave jurisdiction. And in the case of Voorhees v. Jackson, 10 Pet. 449, it was decided that the want of evidence of ptiblieation upon the record, was at most but error, and did not vitiate the proceedings.

But in the present case, we are relieved from the necessity of' deciding this question. It is admitted that the notice was actually given, and may be s6 considered, if it be consistent with the principles of law to prove the fact aliunde the record.

It is worthy of remark, that in the law under which these proceedings were had, there is nothing requiring the clerk to record a copy of the advertisement, or to state in the record the fact that the same had been published. Nor is there any thing stated as to the manner in-which the proof of publication should be made. The provision is, that publication shall be made, and unless made, that the suit shall be dismissed at the costs of the plaintiff. A suit not being dismissed, but proceeding to judgment, affords at least a reasonable presumption, that proof of publication must have been made in some way to the court. The practice at this early period, according to my recollection, in all eases where publication in a newspaper was required, was, to introduce the papers themselves, and all the papers containing the publication, to show that the law had been complied with. And it was not-until within a comparatively recent period, that the practice was introduced, of filing a copy of the advertisement, verified by affidavit,, that the same had been published the length of time required by law. In either case, however, it would seem to be proper that a suggestion, of the fact should appear upon the record. At least, such would be our ideas of propriety, at the present day.

Another thing, too, ought to be recollected. At the time these-^proceedings were had, the duties of clerks were pointed out, and the papers specifically stated which were to be copied into the complete record. Hence it would not be strange that he should omit to-record those things, which by law, he was not required to record. The.law in force at the time the judgment in the attachment was rendered,, did not require that, in ordinary eases; the writ should be recorded. And we know that according to the English system of practice, as well as according to the practice of some of our sister states, the-original writ is never considered as a part of the record. The law upon this subject has not been uniform in this statej but like many other of. our laws, has been subject to frequent changes.

" The first law, it is believed, which required clerks, in specific terms, to make records, was the act of February 17, 1808, amendatory to “the several acts >organizing the judicial courts,” 1 Ch. St. 567; although their duty so to do, might be inferred previously, from the law regulating fees, which allowed them a compensation for making records. The 16th section of the act of 1808, provides “ that when any cause shall be finally determined, the clerk of the court shall enter all the pleadings and papers filed as evidence therein, and the judgment thereupon, so as to make a complete record thereof.”

This act continued in force until 1810, when it was repealed by the .act of February 16, of that year, “ to reduce into one the several acts organizing the judicial courts, defining their powers and regulating their practice.” 1 Ch. St. 705. By the 103d section of this latter act it is enacted, “ that whenever any civil cause, of whatever nature it be, shall be finally determined, the clerk of the court shall, during the next vacation, enter the warrants of attorney, original writ or writs, declarations, pleadings, proceedings, and judgments in such cause, so 'as to make a complete record thereof,” etc.

This act was amended by an act passed February 4, 1813. 1 Ch. St. 794, by which this 103d section was explicitly repealed, and the following provision introduced, to wit, “ whenever any suit shall be finally determined, the clerk of the court shall, during the next vacation, enter the indictments, presentments, declarations, pleadings, recognizances, proceedings, and judgment in such cause, so as to make a complete record thereof,” etc. This was the law in force at the time the judgment was rendered in the case under consideration. And it is believed, that from this time until the passage of the act of February 18, 1825, u To organize the judicial courts and regulate their practice,” 2 Ch. St. 1263, there was no law in this state requiring, in terms, a clerk to enter the writ in the complete record.

*If under the law of 1813, it should become necessary in order to sustain a judgment, to prove the issuing and service of the writ( can there be a doubt but that the fact might be proven by the production of the writ and return thereon ; or if the writ could not be produced, then by secondary evidence ? We think not. A party claiming under such judgment, would not be confined to the complete record. All things required to be inserted in that record must be proved by it, but things not required to be inserted, might, from necessity, be proved •aliunde. Upon the same principle in the case before us, the clerk not having been explicitly required to insert the fact of the publication of notice in the record, that fact may be proven by evidence aliunde.

It is further contended by the plaintiff’s counsel, that admitting the proceeding in attachment to be of binding force and validity, still the title of the plaintiff remains good, inasmuch as the deed' from Fuller to Griswold was recorded before the judgment and sale by the auditors.

Upon this point, many authorities have been cited by counsel for both parties. The eases are, however, very few of them like the present, although somewhat analogous. Still the decisions in those cases have not been uniform, and after all we must be governed by a fair construction of our own state legislation. It has already been decided in the present case, that the property might be attached as the property of Fuller, the time having expired within which the deed from him to Griswold should have been recorded. The effect of levying the attachment is declared in the law. “ Such writ when served, shall bind the property and estate of the defendant, so as aforesaid attached, from the time of executing the same.” 1 Ch. St. 674. The attachment then operates as a specific lien upon the property from the time it is attached, and a subsequent conveyance by the attachment debtor of the same property, could not defeat this lien. Neither could the recording of a deed, subsequent to the levy, have this effect, provided that deed was recorded out of time. Although the property is bound by the levy of the attachment, from the time of the levy, the title remains in the debtor, subject to this incumbrance, until sold and conveyed by the auditors. When so sold and conveyed, the law again declares the effect of the conveyance. It “ shall be as binding and effectual as if the same had been made by the said defendant, prior to the service of the said attachment.” If this conveyance had been made by Griswold to Brown, on the 19th of June, 1812, the day before the attachment was levied, there can *be no doubt that it would have vested a title in Brown, which could not have been defeated except by proof that at the time, Brown had knowledge of the execution and existence of the former deed. The same effect results from the execution of the conveyance by the auditors. Such is the literal provision of the statute, and we do not feel ourselves authorized to defeat this provision by construction.

Judgment for defendants.


text:
    Lessee of Abigail Pillsbury and Mary Sargeant v. Thomas Dugan’s Administrator. and The Same v. Hiram B. Cade and Others.
    No mistake of name will invalidate an instrument or proceeding, unless the person meant can not be identified; bad spelling will not produce suck, effect.
    'The names of Pilisby and Pillsbury are so nearly identical, that proceedings in partition against a defendant by either name, will be good. Biddulph may be proven to be another mode of spelling Pulhuff.

    Errors in form are overlooked, when the acts of a court are manifest, and the jurisdiction established.
    Nonjoinder of the husband in proceedings for the partition of the wife’s land leaves his life estate untouched, but partition against the wife without the husband will bind her unless reversed.
    Partition proceedings are analogous to those in rem, and publication of notice by advertisement, is sufficient to apprise a party of the proceeding and to bind his interest.
    >One acting in a court of general jurisdiction, as an attorney in fact for a party, will be presumed to have satisfied the court of his power to act, and the . party affected can not impeach the proceedings collaterally, because the fact of such proof does not appear in the record.
    Ejectments. From Hamilton. These suits depend upon the same title, and were heard together upon agreed facts.
    The plaintiff claims two undivided eighths of lot 92, and out lot 20 in Cincinnati. He shows a title in his lessors, by a deed from John Cleve Synimes, dated in August, 1795, conveying the land to them under the names of Abigail Cutter and Mary Cutter. Abigail Cutter Fas heretofore intermarried with Silas Pillsbury, and Mary Cutter -with Phineas Sargeant, but both husbands have deceased, so that the plaintiff is entitled to a recovery in both cases, unless these interests have been extinguished by certain proceedings in partition.
    In August, 1805, the following petition was filed in the Common Pleas of Hamilton county. “ The petition of the subscribers respectfully showeth, that John Cutter, late of Cincinnati, died seized of a certain in-lot, No. 92, containing seventy-two perches, and one out-^lot, No. 20, containing four acres, situate in the town of Cincinnati, held by purchase from and under the proprietors of the town. In which lots William Woodward is entitled to three-eighths parts;

      Abigail, wife of said William, to one-eighth part; Hepsibeth Foster and Seth Cutter, both of the town of Cincinnati, are each entitled to one-eighth; Abigail Pillsby and Mary Cutter, both of Massachusettsr are entitled to one-eighth part, for which petitioners ask partition, etc.
    William Woodward,
    Abigail Woodward,
    Samuel Foster,
    Hepsibeth Foster,
    Samuel Cutter,
    Att’y for Mary Cutter.”
    The proceedings under this petition were examined by this court,, and most questions arising under it were settled in the case reported, in 8 Ohio, 87. In these suits it remains to determine whether Mrs.. Pillsbury and Mrs. Sargeant were parties so as to bind their respective, shares.
    Y. Worthington, J. C. Wright, and T. Walker for plaintiffs,, made the following points :
    1. That the proceedings in partition do not bind Mrs. Sargeant, as-she was no party to the record, except through the agency of Samuel Foster, who shows no authority to act for her. No one can be bound, by the acts of another without his consent. The case in 3 Ohio, 521, extends no farther than to hold parties bound by the acts of attorneys at law. Cutter was not an attorney at law, and his authority as an attorney in fact, if it existed, should form a part of the proceedings.
    2. As to Mrs. Pillsbury, the proceedings in partition were not. against her. She was no party, had no notice, and can not be bound by them. The partition law required the petition to set forth the. name and residence of each co-tenant, and forty days’ notice by personal service or publication before the term of the court, ordering partition. In this case the petitioners profess to know all the parties,, and it does not lie with them to say they brought an improper party before the court by mistake, and that thereby they conclude the real, party in interest.
    3. Silas Pillsbury, the husband, should have been made defendant,, either alone or with his wife, to bind her interest. In 8 Ohio, 87, this court determined that a tenant by curtesy could make partition, and. was the proper party to such proceedings.
    4. The proceedings do not show that any deed has been executed to-Woodward under the partition, and therefore no title passed. 5 Ohio, 455.

      5. In no event can Silas Pillsbury’s interest, as tenant by the curtesy, be affected by the partition. He had a life estate, 4 Ohio, 170, and was no party. His death since this suit was commenced, does not destroy, the right to recover; that remains, to secure the mesne profits up to his death. 2 Ohio, 304; 3 Wheat. 212.
    D. Van Mater, for defendants,
    insisted, the partition proceedings sufficiently find Samuel Foster’s power to act as the attorney for Mary 'Sargeant, and conclude her. The power of attorney no more than the ■deeds, or other muniments of title, go into the record. But she is •named in the petition as owner of an eighth, and notice published, which is sufficient to bind her even if Cutter had no power. This -applies equally to Mrs. Pillsbury. Notice was ordered by the court, and the cause continued for that purpose, and must now be presumed •to have been proven.
    The naming Abigail Pillsbury as the owner of one-eighth, and •stating her residence in Massachusetts, complies with the law, though •she is not described as wife of Silas Pillsbury, and the publication so made would advise him sufficiently to take care of his rights. When •sold he had a right to take his proportion of the money. Less strictness is required in partition than in other cases, the object being merely to apart to each of several owners of land his portion of it. But it is said that Mrs. Pillsbury was not a party to the petition, and is not bound by the sheriff’s deed. The objection rests upon a mere mistake in spelling the name, Pillsby instead of Pillsbury. It was Mrs. Pillsby who was the daughter of John Cutter who was described, .and sufficiently so to prevent all misunderstanding, as to who was •meant. Besides the name is spelled as it is generally pronounced. If there be a misnomer, the party can not avail himself of it in this collateral way.
    B. Storer and C. Fox, same side.
   By the Court,

Lane, C. J.

In adjudicating upon transactions occurring in the early settlement of our state,.we must never forget the absence of precedents and system, the different usages introduced 'by people emigrating from every part of the country, the want of knowledge or neglect of technical learning, and the risk of loss of evidence from the lapse of time. Hence errors of form have always been overlooked, where the acts of a court are manifest, and its jurisdiction established. 3 Ohio, 273 ; 6 Ohio, 255.

The petition in partition is very loosely drafted. The land is well ^described, but the name Pillsbury is spelled Pillsby, and no-notice is taken of her husband, although then alive. The non-joinder of the husband, who then held a freehold in the wife’s land for their joint lives, and a contingent tenancy by curtesy, left his rights unim- > paired. By his decease, this estate is ended, and the wife is bound by a decree against her, until reversed, because a judgment or decree against a femme covert is voidable only on error.

It is not every mistake in names which will invalidate an instrument, or proceeding. This effect will follow where the person can not be-identified, .or where the error is such as to describe another. But words are intended to be spoken; and where the sound is substantially preserved, bad spelling will not vitiate. I remember a case where a lessor in ejectment recovered in the name of Puthuff under a deed to-his ancestor in the name of Biddulph, by proving that Biddulph, Bottolph, Potherf, and Puthuff, were different modes of spelling thenaipe of the same person. In the case before us Pillsby and Pillsbury differ little in sound, in familiar conversation, especially when pronounced with the rapidity of utterance usual among the people with whom she then lived. In the statute proceedings for partition, which only define existing rights, without creating new ones, and are not regarded adversary, but' analogous to proceedings in rem, 6 Ohio, 269, the co-tenant against whom partition is demanded, is not strictly a party. Where he lives beyond the jurisdiction of the court, the publication of notice of the pendancy and objects of the petition, is all which is required. We find, in the case before us, sufficient evidence-of notice that a petition was pending, to divide lot 92 and out-lot 20, in Cincinnati, belonging to the late John Cutter of Cincinnati, of-which Abigail Pillsby of Massachusetts was entitled to one-eighth. Enough is shown to apprise her of her rights and to bind her by the-decree of partition.

The objection to the operation of the decree upon Mrs. Sargeant’seighth is, that no authority appears on the record for Samuel Foster to institute these proceedings as her attorney in fact. The authority of an attorney at law'is presumed. 3 Ohio, 521. The power of an attorney in fact, should be shown by proof, but where a court of general jurisdiction is required to exercise its powers upon a state of facts to be proved before it, the requisite proof is presumed to have been made, and the existence of the fact can not be afterwards collaterally questioned. 2 Pet. 163, 449 ; 3 Ohio, 257, 560 ; 6 Ohio, 255; 7 Ohio, 259 ; 8 Ohio, 87. The defendants may take judgment.