author: Spalding, J.

text:
    George Busick v. The State.
    It a juror, when interrogated, says he has formed no opinion respecting the guilt or innocence of the accused, and after verdict it appears that, before the trial, he had said, “if he (the prisoner) is not hung there is no use of laws,” a new trial should be granted.
    This is a writ of error to the Court of Common Pleas of Putnam county.

      Metcalf, Coffinberry and Rose, for plaintiff in error.

      Henry Stanbery, (attorney general,) for defendant.
   Spalding, J.

The plaintiff in error was indicted for the murder of one Samuel Hamilton. He was tried at a special term of the court of common pleas, held in said county of Putnam, on the nineteenth day of February, A. D. 1850, and found guilty by the jury, of murder in the first degree.

The prisoner, by his counsel, moved the court to set aside the verdict, and to grant a new trial, for reasons set forth in said motion.

The court overruled the motion, and proceeded to pass sentence of death upon the prisioner.

In the progress of the trial, exceptions were noted to very many of the acts and rulings of the court, all of which are presented in a bill of exceptions, sealed by the judges. Among them may be found an exception taken to the ruling of the court, in refusing to set aside the verdict, and to grant a new trial.

Amidst the multiplicity of errors assigned by counsel, we deem it necessary to notice only the seventeenth,:

That the court erred in overruling the motion and showing, for a new trial.”

The motion for a new trial is set forth fully in the bill of exceptions, together with the evidence introduced in support of it.

The second reason assigned for the motion is “ that Isaac Gaffy, one of the jurors, had, at various times before the trial of said cause, expressed the opinion that said Busick ought to be hung, of which defendant had no knowledge until after the ver,diet; the said Isaac Gaffy, being one of the twelve jurors who tried the said cause, and returned the said verdict, was inquired- of, on the stand, by the defendant, when being examined touching his qualifications as a juror in said cause, if he had ever, at any time, expressed an opinion of the guilt or innocence of George Busick, the prisoner at the bar, and answered that he had not. He was then asked by the defendant if he had not formed or entertained an opinion on the subject of the guilt or innocence of George Busick, the prisoner at the bar, and he answered that he had not; whereupon the court ordered the said Isaac Gaffy into the jury box.” And it further appears from the bill of exceptions, that on the hearing of said motion for a new trial, the defendant called to the stand one Evan Evans as a witness, who being duly sworn, testified as follows: “ Some time in the last of last fall, or the beginning of the winter, on one cold Sunday morning, Mr. Isaac Gaffy came to my house, and, in the course of our conversation, he said, ‘ if George Busick is not hung, then there is no use of laws.’ On cross-examination he said that the above was about what Isaac Gaffy said ; that he could not give the particular language.”

Oliver Talbot, Esq., was also called to the stand as a witness, and being duly sworn, testified as follows: “ Some time last summef or fall, about two months after the summer term of this court, witness was telling the said Isaac Gaffy the evidence in the ease of the State of Ohio v. George Busick” — (witness had been one of the grand jury that found the bill in the case).’ “ The said Isaac Gaffy then said, ‘ if that testimony does not hang George Busick, then there is no use of laws. A man may take his knife and go and kill and destroy his neighbors with impunity.’ ” Whereupon the court decided that said evidence was not sufficient to show that the said Isaac. Gaffy had, before being impanneled to try said cause, expressed an opinion as to the guilt or innocence of the said George Busick, so as to render 'him incompetent as a juror, and overruled the motion for a new trial, etc.

We have no, hesitation in saying that herein the court of common pleas erred. The man, Isaac Gaffy, had formed an opinion that the prisoner was guilty, from hearing a statement made of the testimony by one of the grand jury. He had not only formed this opinion, but had openly declared, in the presence of witnesses, at different times, that if that testimony did not hang the prisoner, there was no use of laws. He was totally disqualified to act as a juror, by reason of his preconceived and publicly expressed opin ions. But when I take into the account the fact of his denial that he had thus formed and expressed an opinion, when interrogated by prisoner’s counsel, and that he in this way wormed himself into the jury box to pass upon the evidence which he had once said would hang the prisoner if there was efficacy in the law, I am almost constrained to say that he was incompetent for the want of a sound moral sense.

In the main, this question is very like the one settled by the supreme court of the State of Illinois, in 3 Scam. 412, “ where a juror, at different times before the trial of a prisoner for murder, said he believed the prisoner would be hung, that he ought to be hung, that nothing could save him, that salt could not save him, and that there was no law to clear him; but after-wards, when sworn on the trial touching his competency as a juror, he stated that he had formed no opinion, and no objection being made, he was sworn on the jury, and the prisoner convicted ; a new trial was granted on the ground of incompetency of the juror.” The books are full of similar cases, and the decision now made will be only cumulative in its character.

The court of common pleas should have set aside the verdict, and directed a new trial-upon the showing of the prisoner'that the juror had formed and expressed an opinion touching his guilt, which he afterwards attempted to conceal; and because this was not done, the judgment of that court will be reversed.


source: Caselaw Access Project

author: Avery, J.

license: Public Domain

text:
    Achilles Pugh v. Henry B. Brown and others.
    When one court of chancery has obtained rightful jurisdiction over a subject, another court of chancery, of only equal authority, should not assert jurisdiction over the same subject, but whenever the fact is shown by competent evidence, should dismiss the bill; and the cause for dismissal is not removed by an appeal of the case.
    This is a bill in chancery, reserved in Hamilton county.
    The bill was filed in the commercial court of Cincinnati. By the statements of the bill, Pugh sold to' Brown three-twelfths of the Cincinnati Chronicle printing office, subscription list, and all things pertaining to the said concern, for the sum of fifteen hundred dollars. By the article of sale, which was dated September 21, 1846, it is shown that the consideration was payable as follows: Two hundred dollars in hand, the remainder in notes; one for one hundred dollars in sixty days ; one for four hundred dollars in ten months, with interest from date ; one for four hundred in sixteen months, and one for four hundred in twenty-two months, both with interest; in which article of sale it was stipulated that said Pugh should retain, by virtue of said article, a full and perfect lien upon the said three-twelfths of the property thereby sold, as security for the payments of the notes above described; and if any of the notes should not be paid at maturity, the contract of sale itself should be void, and all the money paid thereon (provided the amount did not exceed $300), should be forfeited.
    The article of sale and mortgage was filed in the office of the recorder of Hamilton county, on the 27th January, 1847, pursuant to the provisions of the statute in such cases made. The note of $400, at ten months, and the note of the same amount at sixteen months, had fallen due at the time of filing the bill, and both of them, principal and interest, remained unpaid, and Brown refused to pay them, though often requested.
    The complainant avers in his bill, that he is informed, and believes that Mary J. Taylor, guardian of the infant heirs of Caleb W. Taylor, deceased, Amos B. Corwine, Samuel L. Corwine and Samuel Davis, claim some right in, or assert some claim upon the said property, the precise nature of which he cannot state..
    The bill prays for process against said Brown, Mary J. Taylor, A. ■ B. and S. L. Corwine, and Samuel Davis; that an account be taken of the principal and interest due upon the notes; and in ease the amount be not paid within a limited time, that the property mortgaged be sold to pay the claim of the complainant, and also for general relief.
    Brown, in his answer, says, that he purchased three-twelfths of the Cincinnati Chronicle establishment from the complainant, and for the terms of purchase, refers to the copy of the article filed with the bill. That by the agreement, the defendant did not become responsible for any of the individual debts of Pugh, and only for such of the partnership liabilities as were then entered on the books of the Chronicle establishment. That Mary J. Taylor, at the time of said purchase, held a mortgage on the establishment for about $2,500, and it was understood between Pugh and respondent, that respondent did not assume any liability growing out of said mortgage, but that Pugh was to save him from all harm arising out of the same. The said mortgage debt was not a partnership debt, and did not appear on the books of the concern. The respondent further states, that complainant bound himself by his agreement, to convey to the respondent, one-fourth of the Chronicle establishment, and did convey the same ; and that respondent entered upon the duties as associate editor, which duties he continued to discharge, till the sale of the establishment, by the sheriff, on the 8th of December, 1846. The sale was for debts contracted before respondent became a member of the firm; that he did not contribute to that result, nor could he have prevented it.

      The respondent further says, that a short time after his pur chase, in order to protect himself, he assumed to pay to Mary J. Taylor $625, the amount of her mortgage on his interest, which he contends he had a right to do, inasmuch as Pugh could not make him a good title to any portion of the Chronicle establishment.
    The respondent denies that the principal and interest of the notes in the bill mentioned, remain unpaid. He says that complainant had, himself, entered upon one of the notes, a credit to him, of $279, and that the nature of the whole transaction, and of respondent’s connection with Pugh, will more fully appear, by reference to his answer to the bill of Pugh, in the superior court of Cincinnati, a copy of which he files and makes a part of his answer in this case.
    Respondent further states that after he assumed to pay to Mary J. Taylor, the aforesaid sum of $625, the complainant acknowledged the same to be a payment to him for so much, and in substance, agreed to credit the amount on the notes.
    Also, that he is advised the article between him and complainant does not operate as a mortgage; that when Pugh failed to make him a good title, or when it was ascertained that he had no title, the said agreement became void.
    That at the sheriff’s sale above mentioned, the establishment was sold to the highest bidder, and purchased by R. M. Cor-wine, for his brothers A. B. and S. L. Corwine. The complainant Pugh was present at the sale, and gave no notice of any lien or claim against the establishment, with the exception of the mortgage of Mrs. Taylor. Immediately after the sale, the sheriff notified the complainant that he would proceed forthwith to put the purchasers in possession, to which the complainant made no objection, and possession was then given to R. M. Corwine, for the purchasers. Respondent says further, in his answer, that he has no interest, whatever, in said Chronicle establishment.
    The other defendants also file answers.
    The Corwines allege that they had no knowledge of the mortgage set out in the bill; state that on the 8th day of December, 1846, they purchased the Cincinnati Chronicle printing establishment, including the subscription list, and all other property and things pertaining thereto; that all the interest of said Pugh and Davis had been levied upon by the sheriff of Hamilton county, by virtue of an execution in favor of Howell and Seely against said Pugh, Davis, and Adams Peabody, and after due advertistement, had been sold to said Corwines; that before the sale, Pugh gave notice of the mortgage of Mary J. Taylor, and this was all the lien or incumbrance pretended to exist; that the sheriff, after the sale was concluded, and he was paid the purchase money, told Pugh that he was about to put the purchasers in possession, to which Pugh made no objection, and set up no further claim. The Corwines then took possession, and .have continued to hold it ever since. After making further statements, with a view to show that they had title to the whole property, subject only to the mortgage of Mary J. Taylor, they aver that they purchased .from Mrs. Taylor, her mortgage, and executed in lieu the.reof, certain notes executed by them and their co-defendants, Brown and Davis, for $2,400, and another mortgage to her upon the establishment.
    They further state that there is now pending and undetermined, another bill for same cause of complaint, and praying for the same relief, with other matters as set up in this, in the superior court of Cincinnati, wherein said Pugh is complainant, and respondents and others are defendants, and they claim, whatever may be the decision in this cause, that said Pugh may be charged with the costs of this proceeding.
    Davis answers, amongst other things, that the establishment, on the 8th of December, 1846, was sold by the sheriff, to the Corwines; that the sale was made subject to Mrs. Taylor’s mortgage, and no other; that the Corwines took possession, with the assent of the sheriff, Pugh, himself, and his co-defendant Brown, and have ever since held the same in their own right. This respondent disclaims having any interest in the establishment.
    The answer of Mary J. Taylor states, amongst other things, that on the 8th December, 1846, said Davis, Brown, and the Corwines, assigned to her all their interest in the'establishment; said conveyance being made upon condition that $2,500, with interest, should be paid to her, according to the tenor of certain notes, particularly therein described ; that all of the said notes remain in her possession, and unpaid, except the semi-annual interest, which has been paid, so far as due. She further states that some of the notes have become due, claims that they are the first and best lien upon the property, asks that her rights may be protected, that her answer be taken as a cross bill against the complainant and her co-defendants, and that she may have a decree against said Davis, Brown, and the Corwines, for the amount of the notes due, and interest on the other notes.
    Upon the hearing of this cause, the bill, answers, depositions, and all the exhibits in the cause above mentioned, pending before the superior court of Cincinnati, are introduced in evidence ; and the counsel for the defendants insisted that the bill, in this case, ought to be dismissed, because of the pendency of the bill in the superior court.
    That bill was filed on the 13th of February, 1847. The bill in the case now in hearing, was filed originally in the commercial court of Cincinnati, on the 13th of April, 1848. The bill in the superior court was brought by said Pugh, against Geo. W. Harlan, Adams Peabody, and the. said Davis, Brown, Mary J. Taylor, and A. B. and S. L. Cor wine.
    Besides various other matters set forth in this bill, includ ing the statement of a partnership between himself, said Davis and Brown, said Pugh alleges that said Harlan, Davis, and himself, executed to Mary J. Taylor, the said mortgage for $2,500, upon the printing establishment, and sets out the same by copy attached to the bill. He also sets forth, that on the 21st of September, 1846, he sold an.interest of one-fourth of the said concern, (that is, the printing establishment,) to said Henry B. Brown, for $1,500, and makes a copy of the article of sale a part of bis bill. He avers that Brown has paid for his interest, only the sum of $800, and that Brown compelled the complainant to deduct $279 from the payment due, contrary to the intention of the complainant. He further proceeds to state the judgments recovered by Howell and Seely; that they caused executions to issue and to be levied on the interest of himself and said Davis, in certain printing presses, types, and other materials, being an interest of three-fourths, subject to. the mortgage first mentioned; that the sheriff, on the 8th of December, 1846, sold the same to A. B and S. L. Corwine, whereby the interest of Brown was altogether exempted from contribution towards discharging' the liabilities of the said concern.
    The complainant further, in the said bill, pending in the superior court, charges, that said Davis, Brown, and the Corwines procured said Mary J. Taylor to transfer to the said CorwineS' the mortgage first named, in secret trust for said four defendants ; that they paid only $50, but that they executed another mortgage to said Mary J. Taylor, upon the establishment, for the same sum of money, a copy of which last mortgage is made also a part of the bill.
    The complainant further states that he had hoped that Davis & Brown would have contributed with him in the purchase of new materials, and proceeded in the business of the partnership; but that combining to defraud complainant, they and the Cor-wines have taken possession of the establishment, to the exclusion of the complainant, and assumed to print and distribute the Cincinnati Chronicle, have collected the partnership debts, and the materials belonging to it, and usurped the management of its affairs, against the complainant’s assent, and denying him access thereto. Complainant prays the court to decree that an account be taken between said Davis, Brown, and himself, and proper disposition be made of the partnership assets.
    That Davis redeem $1,500, with interest, of the money secured by the mortgage first mentioned.

      That Brown be decreed to withhold demand of the residue oi the sum secured by the mortgage aforesaid till he has accounted with the complainant, and paid the full value of his share in the said concern.
    And in default thereof that the establishment be sold and a distribution be made of the proceeds of sale among the creditors and partners. That the Corwines be decreed to account. In the meanwhile that Davis, Brown, and the Corwines be enjoined from publishing the newspaper, collecting debts, subscriptions, etc. That a receiver be appointed to take charge of the establishment, conduct the same, and collect the debts, subscriptions, etc. To all which is added a prayer for general relief.
    The answer of the defendant Brown to the bill in the superior court, which he makes a part of his answer in this, sets up amongst other things, the claim that the title of Pugh to the establishment has failed, and that the respondent is entitled to a decree for the money heretofore paid by him on account thereof.

      Pugh & Pendleton, for complainant, cited the following authorities :

      Johnson v. Evans, 7 Man. & Gran. Rep. 249; Jacky v. Butler, 2 Lord Raym. 871; 2 Story’s Eq. 597 ; Hill's Lessee v. West, 8 Ohio Rep. 224 ; 4 Kent’s Com. (5 ed.) 293; Jackson v. Curtis, 19 John. Rep. 325 ; Wilson v. Troup, 2 Cow. Rep. 230; 2 Dan. Ch. Pract. 819; 3 Sug. on Vend. (6 Am. ed.) 345, 6, 7; Snelgrove v. Snelgrove, 4 Des. Ch. Rep. 289 ; 9 Ves. 33, 34; 14 John. Rep. 63, 74; 1 Munf. Rep. 496, 7 ; 10 John. Rep. 544-8 ; 2 Wheat. Rep. 383 ; 3 Wheat. Rep. 527; 6 Wheat. Rep. 467; 1 John. Ch. Rep. 590; 17 John. Rep. 367 ; 18 John. Rep. 532; 2 John. Ch. Rep. 87-90 ; 3 John. Ch. Rep. 583 ; Sug. on Vend. 766-71; 1 Atk. 384; 4 P. Will. 243, 307 ; Amb. 421, 589; 2 Atk. 236 ; 8 Wheat. Rep. 502; 5 Peter’s Rep. 718; 7 John. Ch. Rep. 67; 1 Cr. 100 ; 3 Cr. 133-5 ; 1 Wash. C. C. Rep. 75 ; 7 Cr. 44 ; 7 Peters 271;
      Sanger v. Eastwood, 19 Wend. Rep. 514; Gregory v. Thomas, 20 Wend. Rep. 17 ; Moody v. Paine, 2 John. Ch. Rep. 548; 1 John. Ch. Rep. 471; 6 John. Rep. 559.

      Coffin & Mitchell, for defendants.
    I. The pendency of another case in the superior court of Cincinnati, upon this pretended mortgage, is a bar to the proceedings here.
    This defense may be made:
    1. In the answer. Story’s Eq., sec. 736, 7, 8; Mitford’s Pleadings 246, 247.
    2. If it appears from the pleadings or evidence the court will proceed no farther.
    Where another court has obtained jurisdiction the court cannot proceed. 16 Ohio 373, 404, 405.
    II. 1. The bill is to foreclose three-twelfths of a printing establishment. The bill is defective in not setting out who owns the other nine-twelfths.
    2. A court of equity will not direct a sale of an undivided interest in a partnership concern.
    It would be a sale of a right to institute another suit in equity, in reference to the same subject-matter.
    3. This shows that full relief can be had in the case in the superior court.
    III. The Oorwines are bona fide purchasers without no' tice.
    Pugh’s sale of balances was a sale representing that that was all he claimed. Pugh gave notice of one claim. Silence as to this was a fraud.
    The Oorwines were not bound to know the existence of this paper. Title to personal property is not generally evidenced by paper writings.
    IV. By the first mortgage to Mrs. Taylor, Pugh transferred all his interest to her.

      He had only a right to redeem. Can he sell a part of that right to Brown — take back a mortgage, and then interfere with the property before he redeems the Taylor mortgage ?
    Mrs. Taylor and her assigns cannot be disturbed in this property until that debt is paid off, and the right to redeem must be exercised in a reasonable time. 2 Story’s Eq. § 1030, 1031; 7 Cowen 290 ; 8 Johnson’s Rep. 96 ; 6 Paige 587 ; 2 Vesey jr. 378 ; 9 Wend. 80 ; 12 Ib. 61; 3 Denio 33.
    V. If the mortgagor does not redeem within a reasonable time, the mortgagee may sell, after notice, and the title will vest absolutely in the vendee. 2 Story’s Eq. § 1031.
    Mrs. Taylor sold the property itself, and it is expressly conveyed by the sealed instrument executed by her. Pugh had notice.
    Corwines may hold the property and hold the mortgage. The two titles will be kept distinct, if that was the intention, and it is the interest of the party to do so. 4 Kent 102, 3 ; 18 Vesey 384; 1 Paige 192 ; 2 Cowen 246.
    This is not a bill to redeem from the Taylor mortgage. 18 Johnson’s Rep. 644; 1 J. C. Rep. 287.
    VI. The last mortgage of Mrs. Taylor of 12th Dec. 1846, has priority over Pugh’s lien. It' secures Mrs. Taylor’s debt, and the Corwines can rely upon it.

    It would be a fraud upon the Corwines to take from them the security, and let the debt remain.
   Avery, J.

From an examination of the whole case, there can be but little room for doubt, that the defendants were entitled, at some stage of the proceedings, to have this bill dismissed. The principal questions to be settled under the bill and answers must, _ it is evident, have come up for decision under the bill first filed and still pending in the superior court. The article of sale or mortgage on which this is founded, constituted a prominent document, in the first— upon this the action of the court was sought, and its binding obligation controverted by Brown. The depositions taken in the first ease, and the various exhibits there introduced, touching the interest of the Corwines, of Mrs. Taylor, and of Davis and Brown, in the printing establishment, and their connection with it, were the appropriate evidence to establish the same interest and connection in the second. The rights of the parties were so essentially before the court in the first suit, that there seems to us a manifest impropriety in commencing the second, during its pendency, although in the meantime some of the notes had fallen due.

There are three courts of concurrent jurisdiction holding their terms in Cincinnati. The suitor both at law and in equity, may proceed at his option in either of them. But he cannot try his chances in them all, and thus accomplish his object, if he can defeat his adversary in either. From their decrees, when sitting as courts of equity, it is true, an appeal may in all cases be taken to the supreme court. But in this way it may happen .that different bills will come up and be pending in the same court, between the same parties, to settle •one matter in controversy.

We are of the opinion that after one court of chancery has obtained rightful jurisdiction over a subject, another court of chancery, of only equal authority, should not assert jurisdiction over the same matter; but whenever the fact is shown by competent evidence, should dismiss the bill. The commercial court had sufficient cause on the ground here considered, to dismiss this bill; and the cause for dismissal is not removed by the appeal. The controversy between these parties upon the merits we do not decide.

The bill is dismissed.


author: Caldwell, J. Avery, J.,

text:
    Joseph Woodruff and another v. Samuel Robb and others.
    A deed conveying land to a trustee, merely as collateral security for the payment of a debt, with the condition that it shall be void on the payment of the debt when due, with power to the trustee to sell the laud and pay the debt, in case of failure to pay on the part of the debtor, is a mortgage within the meaning of the registry act, and only takes effect from the time of delivery for record.
    This is a bill of review reserved in Brown county.
    The bill was filed to reverse a decree of the supreme court for Brown county, and comes before this court upon demurrer to the bill.
    There is no serious controversy so far as the facts of the case are concerned, and so far, as is necessary to an understanding of the points in the case, they are as follows: The property in dispute is a tract of 1417 acres of land in Brown county. This land, in 1831, was owned by Joseph Scott. On the 26th day of June of that year, Scott sold and conveyed the whole to the defendant, Samuel Robb, and at the same time took from Robb, a mortgage on' the same property, to secure a note for $2000, -a part of the purchase money. On the 28th September, 1833, Robb being indebted to the complainant Woodruff, in the sum of $1017, and to the other complainant, Ezekiel Birdseye, in the sum of $1275, conveyed this tract of land to Henry Starr, to secure to Woodruff and Birdseye the two notes, evidencing his indebtedness to them severally; both of which notes were of even date with the mortgage, and payable nine months after date. The deed provides, that if these notes should be paid when due, the conveyance should be void, but if not paid at maturity, then Starr was authorized to sell the land at public auction, having given ten days public notice of the time and place of sale, and from the proceeds of such sale, to pay to Woodruff and Birdseye, the sums respectively due them, the expenses of sale, etc., and deliver the balance of the money to Robb. This deed to Starr was recorded in Brown county, on the 23d day of October, 1833.
    On the 2d of October, 1833, five days after the execution of the deed to Starr, but before it was recorded, Robb re-conveyed the land to Scott, and Scott, on taking back the land, canceled Robb’s note and motgage for the purchase money.
    On the 3d of October, 1834, the notes to Woodruff and Birdseye being due and unpaid, Starr having given due notice, according to the provisions of the deed, sold the whole tract of hmd at public auction, to the complainant Woodruff, for $275, and gave him a deed for the same in fee simple. Scott had obtained possession of the land by an action of ejectment, and his grantees were in possession at the time of filing the bill. The decree of the supreme court on the circuit, which is now sought to be reversed, finds no fact, but simply dismisses the bill. But it is stated that the ground on which the court placed their decree, was that the conveyance to Starr was a mortgage, and came within the provisions of the act requiring mortgages to be recorded, prior to their taking effect.

      Q-holson and Miner, for complainants, cited the following authorities:

      Erskine v. Townshend, 2 Mass. Rep. 497; Flagg v. Mann, 2 Sumner’s Rep. 541.; Manlow v. Ball, 2 Vern. Rep. 84; Com. Dig. Defeasance A; Morris v. Way, 16 Ohio Rep. 469 ; Moore v. Burnet’s Lessee, 11 Ohio Rep. 335 ; McMenomy v. Murray, 3 John. Ch. Rep. 436; 2 Story’s Eq. 1013; Birch v. Wright, 1 T. R. 383.

      Thurman and Sherer, and Henry Stanbery (attorney general), relied upon the following authorities:

      Stewart v. Hutchins, 13 Wend Rep. 485 ; 4 Kent’s Com. 147; 1 Pow. on Mort. 9, 10, note; Coleman v. Packard, 16 Mass. Rep. 39; Coote on Mort. in 16 Law Library 14, 16: Miami Ex. Co. v. Ruffner, Wright’s Rep. 252; Perkins v. Dibble, 10 Ohio Rep. 438; Parks v. Hall, 2 Pick Rep. 211.
   Caldwell, J.

The only question presented in argument by complainants’ counsel is, whether the conveyance to Starr, in contemplation of the statute, is a mortgage, or whether it is (as they contend) a deed of trust, and effectual from its date, if recorded in six months.

Before proceeding, however, to examine this question, there is another ground on which, in the opinion of the court, the original bill (if there had been no other objection) must have been dismissed. The defendants are in possession of the land, claiming under a deed in fee simple from Robb, and a title, too, under which they have obtained possession by an action of ejectment. The complainants, being out of possession of the land, are seeking to obtain possession by a bill in chancery, claiming that they have a legal title to it, and tracing their title to the same original grantor, Robb. The bill of complainants rests on the ground that they have a right to possession of the land, by virtue of the deed from Starr. It is true that the bill represents the defendants as holding, by virtue of the mortgage from Robb to Scott, alleging that that mortgage has been canceled, and asking, that if it be still subsisting, the defendants may have a right to redeem. But the defendants claim nothing by virtue of that mortgage; they set up a deed in fee simple given by Robb to Scott, in consideration of the canceling of that mortgage. Although there have been conveyances to secure debts, on both sides, yet neither party presents any claim directly under such conveyances, nor is there any claim of subsisting indebtedness presented on either side, on which any account could be taken, or decree rendered. There is no evidence of any fraud, mistake, or accident, to relieve against which, the aid of a court of chancery could be sought. The complainant, not being in possession of the land, cannot file a bill to quiet his title. It .is a simple case of two parties claiming under absolute conveyances, tracing their titles to the same grantor, and relying on both sides on the legal efficacy of their respective deeds. If the court were to decree in favor of complainants, it would have to be, by ousting the defendants, and putting the complainants into possession, which, under the circumstances of this case, we consider beyond the power of a court of chancery.

But was the deed to Starr a mortgage, as contemplated by our statute ? A majority of the court are of opinion that it was. The legislature, by the use of the general term, mortgage, no doubt meant to express what - has generally been understood by that term.

In Powell on Mortgages, pages 9 and 10, instruments precisely similar to the one under consideration, where the land is conveyed to a third person, or trustee, to secure the payment of money, with power to sell, in case of default of payment, are treated of. The author speaks of such mortgages as a modern invention, for the purpose of avoiding the delay, expense, and other inconveniences attending the foreclosure of mortgages in the usual form; but they are still referred to as coming under the character of mortgages. Chancellor Kent speaks of such instruments as mortgages. 4 Kent’s Com. 140. In 10 Ohio Reports 438, in the case of Perkins v. Dibble, the court decided that a deed, absolute on its face, with a writing in the form of a condition of defeasance indorsed on the back, which showed that the deed was given as collateral security for the payment of money, was in Jegal effect a mortgage. On referring to the indorsement on the back of the deed, the court say: “It shows the purpose for which the deed -was delivered, and that purpose was as collateral security for the payment of money. And every deed made for such purpose, is a mortgage.” And this we think is the great criterion by which it is to be determined whether a conveyance is a mortgage or not. If the conveyance be made as collateral security for the payment of money, or performance of some other obligation, to be effectual only on the non-payment of the money or non-performance of the obligation, it is a mortgage, no matter to whom the conveyance be made, or what other conditions it may have attached to it. Now, the difference between a conveyance to a trustee, for the purpose of raising a fund to pay debts, and a conveyance for the purpose of securing a debt in case of the default of the debtor, by a time limited, is very apparent. In the first case the title is vested absolutely by the conveyance itself, in the. grantee, for the purpose of the trust. The intention of the grantor is to part absolutely with his title. In the latter case, if the grantor perform his legal obligation according to its terms, he retains his property. His title is as perfect as if such conveyance had never been made. The one is a deed of trust, the other a mortgage. The object of the legislature in making the distinction between a mortgage and other deeds and instruments of writing, for the conveyance of land, requiring the one to take effect only from the time it is recorded, and the others to take effect from date, if recorded in six months, will be easily perceived.

When a sale of property is made, that fact, ás a general thing, becomes at once notorious. All the neighborhood at once become acquainted with the fact.

In most cases a record is not necessary to give the world notice that the property has changed owners. Not so with mortgages. The mortgagor still retains possession of the property, and uses it as if no cpnveyance had ever been made. The mortgagee has no right, in the first instance, in any way to meddle with the ordinary use of the property, the mortgagor does not feel that he has parted with it, nor does he perhaps ever expect to. Hence mortgages are put on property and taken off without the fact being at all noted in community. If' the same length of time were given for the record of conveyances, as mere securities for debt, that may with comparative safety be given when the title to the property passes, in the first instance, numerous frauds would no doubt be perpetrated, by persons mortgaging property, by a succession of conveyances, for more than it is worth. We have a statute making it a penitentiary offense for any person to sell real estate for which he has no title, either in law or equity, which would apply to any person who might make two successive sales of the same property. No such law could ever be passed in reference to conveyances for the mere purpose of security. The distinction which the legislature have made between the record of mortgages and other deeds, is a necessary and beneficial one; and the policy can only be seen by drawing the distinction between such conveyances as are intended absolutely to pass the title, and such as are intended .merely as conditional securities for the performance of some obligation. The deed now in question contained all the substantial qualities of a mortgage, and nothing more. It was a mere security for a debt, to be void if the debt were paid. The fact that the conveyance was made to a person other than the creditor, and that it contained a power to sell, does not alter its character in this particular. The legislature would have done a vain thing in requiring mortgages to take effect from record, if such a change in form could withdraw them from the provisions of the statute. We think this deed to Starr comes both within the letter and the spirit of the statutory definition of a mortgage, and that it could only take effect from the time it was recorded. Before the time of the record of this deed, the property had been conveyed to Scott (under whom the defendants claim), for a valuable consideration. All the rights of complainants commencing with this deed, and arising under it, their title will be ineffectual as against Scott and those claiming under him.

The demurrer will be sustained.

Avery, J.,

concurred in opinion with the other members of the court, that the bill ought to be dismissed on the ground that there was a remedy at law — but not on the further ground, that the deed to a trustee could take effect only from The time of its delivery to the recorder.


author: Hitchcock, C. J.

text:
    Samuel Penrod v. Edwin H. Danner.
    A court of chancery has not power to order the sale and conveyance of land from one person to another, when there has been no previous contract between the parties; but it may, in a proper case, enforce the principles of the occupying claimant law.
    This is a bill in chancery, reserved in Shelby county.
    The case stands upon bill, amended bill and demurrer, and is sufficiently stated in the opinion of the court.

      W. J. Martin, for complainant.

      J. S. Conklin, for defendant.
   Hitchcock, C. J.

The original bill in this case was filed on the 27th of July, 1849, and an amended bill on the first of September following.

' The case made in the bill and amended bill is this: the complainant, in 1832, purchased of one Leonard Danner, fifty-five acres of land, in the county of Shelby, being part of the east half of the south-east quarter of section 29, township 10, range 5, east, for the sum of three hundred dollars. At the time of purchase, the land was in a bad state of cultivation, but has been since much improved, and is now in a high state of cultivation. Since the purchase, complainant has paid the taxes. At the time of purchase, complainant was not aware that there was any incumbrance on the land, but shortly after he learned that said Danner had conveyed the same to his son John Danner, who was to hold the same until his father could pay off a debt which had come against him, and to re-convey the land to his father. Leonard Danner paid the debt and then called upon John for a re-conveyance. On the same day Leonard called for the re-conveyance, John suddenly died. To protect the complainant, Leonard after-wards procured a release of the land to the complainant, from all the brothers and sisters of John, who were living, and who were his heirs. Previous to the death of John, one of his brothers, Tobias Danner, had deceased, leaving as his heir a son, Edwin H. Danner. On the 28th of May, 1847, Edwin H. Danner filed a petition for partition of the before described land, in the court of common pleas of Shelby county, and on the 29th of December, 1848, filed an amended petition claiming the title in fee simple, to the individual sixth part of said land, and praying partition, according to the provisions of the statute in such case made and provided, without allowing to complainant anything for the improvements he had made on said land. To this petition for partition, complainant was made defendant. At the July term of the court of common pleas an order for partition was made, regardless of the improvements put upon said land by complainant, since its purchase. The complainant, finding himself remediless in a court of law, seeks relief in chancery, and prays that the proceeding in partition may be enjoined; also that Edwin H. may be enjoined from selling to any other person his interest in said land. And, further, that, said land may not be divided by metes and bounds, but that the same be appraised at the cash value thereof, at the time of sale from Leonard to complainant, including the increased value, exclusive of the improvements put .upon it by complainant, and that the complainant may be decreed to have the entire land, by paying to the said Edwin H. one sixth part of such appraised value. There is also a prayer for general relie'f.

To the bill there is a general demurrer.

This may, as I think, well be said to be a case of the first impression. The complainant, by the showing of his bill, purchased, in 1832, of Leonard Danner, the parcel of land described in the bill, and paid for the same, but whether the same was conveyed by Leonard Danner to him, does not appear. Shortly after the purchase, he ascertained that the title was not in Leonard Danner, as the same had been previously conveyed by Leonard to his son John, for the purpose of defrauding creditors. John died suddenly without having executed any reconveyance, but after his death his brothers and . sisters who were living, released their title to the complainant. But there was one heir of John, to wit, Edwin H. Danner, who was, at the time, an infant, and could not release. By these releases, the complainant acquired a good title to five-sixths of the premises, the title to one-sixth remaining in the infant Edwin H., now defendant to this bill. The complainant, with the full knowledge of all the facts, took possession of the entire parcel of land, and made, as he claims, valuable and lasting improvements, for which he now seeks compensation, not upon the principles of the occupying claimant law, but by having the land appraised irrespective of the improvements, and then, by being allowed to pay Edwin H. Danner one-sixth part of such appraised value. He seeks to enjoin a partition which had been ordered by the court of common pleas, upon the petition of the defendant Edwin, and to enjoin Edwin II. from selling his interest. The real object is to compel, by a decree of this court, Edwin to sell to complainant his interest in the land, at an appraisal ordered by the court. This is beyond the legitimate power of a court of chancery. If the entire tract of land was conveyed to the complainant by Leonard Danner, and had Edwin filed his petition in equity for partition, then the case would have been like the case of Brobst et al. v. Israel and John Gregg et al., decided at the present term of the court. And in such state of case, this court could with propriety settle the legal and equitable rights of the parties, and among others such rights as grow out of the occupying claimant law. The party ap plying in equity for partition, must do equity.

But the case here is different. Edwin II. Danner, in pursuance of the statute, filed his petition for partition. It was not a petition in equity, but a petition under the statute. A strictly legal proceeding. Partition was ordered, and this complainant now seeks to enjoin that proceeding in partition. In the opinion of the court he does not make such a case in the bill as entitles him to this relief. All that he can with propriety ask, is such compensation as he would be entitled to under the occupying claimant law. Of this, according to the statement of the bill, he cannot be deprived if partition is made. He is in possession of the entire land, and the partition would not deprive him of that possession. The only effect would be to sever the interest, and set off to each party in severalty, his proportion of the property. The possession would not be changed. Edwin must still prosecute his ejectment to recover possession of the land aparted to him. And in such case the principles of the occupying claimant law, if applicable, might be applied.

True, as a general rule, the possession of one tenant in common is the possession of all. But if one tenant is actually put out or kept out of possession by another, he may have ejectment to recover the possession. Such is the case here. The complainant insists that he is in the exclusive possession of ihe premises. Whether one tenant in common, who is out of possession, can havé partition before he has recovered the possession, is perhaps doubtful. But it is not a question which arises in this case.

The demurrer is sustained and the bill dismissed.


text:
    William P. Daniels v. Oliver P. Stevens’s Lessee.
    In order that a decree in chancery may be binding upon a defendant, he must have been brought before the court by service of process, or in some other manner known to the law.
    The service of a subpoena upon a defendant residing in another state or territory, and made in such other state or territory, will not bring such defendant within the jurisdiction of a court in this state.
    The laws of the government de facto are obligatory upon the people of such country, and must be enforced.
    This is a writ of error to the Supreme Court for Lucas county.
    The original action, which was an action of ejectment, was commenced in the court of common pleas of' Lucas county, issue was joined, and for trial was submitted to the court upon an agreed statement of facts. Upon this agreed statement the court found the issue for the then plaintiff, now defendant in error.
    After this finding the plaintiff in error moved for a new trial on the ground that the same was against the evidence and. law of the case. This motion was overruled, and judgment entered for defendant in error, and exceptions were taken to the ruling of the court.
    To reverse this judgment a writ of error was prosecuted in the supreme court of Lucas county, in which court the judgment of the court of common pleas was affirmed.
    To reverse this latter judgment the present writ of error is prosecuted.
    It was conceded by the plaintiff in error that the lessor of the plaintiff below made out a prima facie case, and that he was entitled to the judgment of the court, unless the evidence offered by the defendant below was sufficient in law o overthrow the case made out by the plaintiff.

      The lessor of the plaintiff deduced his title by deed from one J. V. D. Sutphen, executed October 20, 1836, under which he took possession and occupied for a short time, and then was ousted by the defendant below, who has been in possession ever since, and who claimed under certain judicial proceedings against Sutphen, of a date prior to his deed to the plaintiff below. Copies of the records of these proceedings are made a part of the bill of exceptions, and they show that on the 28th of April, 1836, one Stephen B. Comstock filed a bill in chancery, in the common pleas of Lucas county, against Sutphen, setting forth, that on the 13th of March, 1833, Comstock and Sutphen entered into an agreement, by which Comstock purchased the premises in controversy at twenty dollars per acre, and took from Sutphen a writing in the following words: “ Received of Stephen B. Comstock fifty dollars in part payment for a piece of land containing three acres, more or less, to be known by survey. Port Lawrence, March 13, 1833. J. V. D. Sutphen.” The bill further states that Comstock took possession, and that he and his grantee had continued in possession down to the time of the commencement of the suit, and that he had paid the purchase money in full to Sutphen, and prays a decree for the specific execution of the agreement. On the 28th of April, 1836, a subpoena was issued, which was returned by the sheriff as follows: “ Served by leaving a copy at the place of residence of the within named defendant.” This residence was situated between the Harris and the Fulton lines, so called, and within the disputed territory between Michigan and Ohio. At the return of the writ the cause was continued. At the next, or November term, 1836, the defendant, Sutphen, having neglected to defend the bill, the same was ordered to be taken as confessed, and the court proceeded to decree, pursuant to the prayer of the bill, that the defendant execute a deed within thirty days, or in default thereof, that the decree itself should operate as a deed.
    On the 20th of July, 1837, Sutphen brought a bill of review against Comstock, in the same court, sotting forth a copy of the original bill, and the proceedings thereunder, and assigning several errors, and praying the reversal of the decree. Corn-stock was served with process, appeared and demurred to the bill, and at a subsequent term of the court the bill was dismissed with costs.
    The defendant below had acquired the title of Comstock, and his defense was complete, unless these judicial proceedings were void. These proceedings are admitted to have taken place, and the premises in controversy to have been situated within the disputed territory.

      M. R. Tilden and N. H. Swayne, for plaintiff in error.
    The question to be considered is, whether the decree in favor of Comstock was a nullity. If the proceedings were irregular or erroneous merely, still they were sufficient to support the title derived under them, unless they were wholly void. And they were not void, if the court acted in a case within its jurisdiction. The agreement, the execution of which was decreed, related to lands lying within the conflicting boundary lines between Ohio and Michigan; the process issued in the case was served, and the court itself was held, and its proceedings took place within the same territory. It has been said that this district was not a part of the territory of the State of Ohio, until it became such by the passage of the act of congress of June, 1836, and, consequently, that the court acquired neither jurisdiction of the person of the defendant, nor of the subject-matter of the case; and indeed, that the court had no legal existence within that territory. To authorize the exercise of jurisdiction, by a judicial tribunal, process must be served upon the person to be affected thereby, or that must be done which the law declares to be equivalent to such service ; and, it is said, that service made beyond the territorial sovereignty of the state is not such service, and that such was the form of the service in the instance under consideration, because the place of the service was in another state. To give to a decree in chancery, di recting the execution of a conveyance of lands, the effect of a conveyance under our statute, the lands operated on, must lie within the limits of the state and county in which the decree is pronounced; and, it is said, that such was not the case here, because -the lands were beyond the limits of the State of Ohio, and within those of the State of Michigan. This is the argument employed to support the decision 'of the court below; and, having received the sanction' of the court on the circuit, it is that to which it is proposed to offer a reply.
    I. The premise is, that the right of jurisdiction was in Michigan, and that the exercise of jurisdiction, by the authorities of Ohio, was an act of mere usurpation. And the evidence which is supposed to prove this proposition, is some expression which fell from Judge McLean, in a case in which this subject came incidentally before the circuit court of the United States. (Piatt v. Oliver et al., 2 McLean’s R. 267.) In that case the question of title between Ohio and Michigan was not even collaterally before the court; and we presume Judge McLean himself would not feel bound by what fell from him on-that occasion. Certain judicial proceedings of the territorial court of Michigan, sitting in Monroe county, and occurring many years before the State of Ohio asserted her right of jurisdiction, were interposed as a defense. These proceedings were, in effect, set aside for another reason, and the defendants, by reason of the trust relations of one of them, were declared to be incapable of availing themselves of the legal rights springing from them. So that the determination of the question, whether or not Michigan had title to the disputed district, and a right to exercise municipal jurisdiction therein, at the time when those proceedings took place, was wholly irrelevant to the case. And being so, we have aright to assume that the point was not.so investigated at the bar, and considered by the court, as to make the case an authority. It would be strange if this court should feel that it had no right, or even that it would be unbecoming to en tertain the point. We do not understand Judge McLean as expressing any opinion as to the merits of the controversy between Ohio and Michigan, but only as describing the effect of the act of congress for the settlement of that controversy. But is it so, that because that act. gave effect to the claim of Ohio, therefore that it created that claim ? It gave to Michigan what was called an equivalent, but it was an equivalent, not for any right which she had, but for withdrawing her claim, and Michigan, by accepting the equivalent, became bound by the conditions upon which it was given. But Ohio, except in a political sense, was not a party to that arrangement. And, not having submitted her demands to the arbitrament of congress, and the act being inoperative as an adjudication, as it plainly is, her claim is entitled to be viewed upon its merits. But “ from the truths of history,” we know, that no such qualities were intended to be imparted to the act. Ohio would have rejected any terms which should have implied any doubt as to the completeness of her title, and there was no occasion calling for their expression. She had asserted her claim, and supported it by actual possession, and Michigan withdrew from the field. And if any conclusion can be drawn from these facts, respecting the sense of congress, it would seem to be in favor of the validity of the claim to which effect was so given. If, therefore, it were a question properly before the court, whether the lands in controversy were within the just limits of Ohio, at the period above referred to, there would seem to be nothing to prevent a full and free investigation of its merits. But it is believed that the present case is presented in a form to preclude that question, and if so, we have a further reason for thinking that the court erred in resting its decision upon the supposed authority of the case in McLean. The court have displayed a commendable desire to sustain the proceedings of courts of general jurisdiction, and all reasonable intendments will be supplied to uphold rights which have been acquired on the faith of those proceedings, and questions of jurisdiction present no exception to the rule. Certainly it must appear that jurisdiction has attached, but whether it has so attached as a question of fact or a. question of law, is one upon which nothing will be presumed against the proceedings.
    II. Although at the time the suit was commenced, and the process was issued, the boundary line was contested, yet, before the final decree was pronounced, that contest was ended, and the territory in question fell within the undisputed limits of Ohio. The act of congress was approved in June, 1836, and the decree was rendered in November of the same year. Grignon v. Astor, 2 How. U. S. Rep. 319; Gilman v. Thomson, 11 Verm. 643.
    III. The following facts are part of the history of the state, and are properly before the eourt: In the summer of 1835, an extra session of the legislature was convened, and the jurisdiction of Ohio was, by law, extended over the disputed territory; the county of Lucas was created, and its limits defined; the right of representation .was extended to it, and provisions were made for the election of civil and militia officers, and for the administration of justice ; it was attached to the second judicial circuit for judicial purposes, and times were appointed for holding courts. At the next ensuing election, township and county officers were elected and qualified ; suits were brought and determined before justices of the peace, and in the common pleas, and these proceedings were backed up and sustained by a competent physical force. At the time appointed for holding the spring term of the common pleas for the following year, (1836,) a legal quorum of that court was convened for the dispatch of business, and the case of Comstock v. Sutphen was regularly instituted by the service of process, and at the following November term it was terminated by the decree under consideration. 33 Ohio Laws, 1 to 14, inclusive.
    It may be affirmed, then, that Ohio, at the institution of the suit and the service of process, was in exercise, de facto, of the rights of sovereignty, and that these rights continued to be exercised without interruption, although not without opposition, down to the time of the passage of the act of congress. These judicial proceedings were a part of those rights of sovereignty, and one of their modes of exercise, and the plaintiff in error will contend, and endeavor to prove, that they cannot be impeached collaterally, and that the right of the State of Ohio, to extend her power over the disputed territory, and to authorize judicial proceedings therein, is a question that does not and cannot arise.
    Sovereignty is the exercise of power, and is wholly independent of considerations respecting the rightfulness of its exercise. Though it be usurped, it is still sovereignty ; and it is necessarily legal, if sustained. This is the universal sense of all nations. A conquered people become subject to the laws forced upon them, and are obliged to conform to the municipal regulations thereby introduced, and to the authorized official acts of the sovereign de facto. Judicial acts and proceedings form no exception, nor is there any distinction whether they relate to persons, or to personal or real property. These incidents continue so long as the country remains in a condition of subjection ; when, by any means, it passes back to its former owner, its ancient institutions may, of course, be revived, but acts which have been done in the meantime, so far as they affect individual rights, are never, or very rarely attempted to be annulled. And although they rest for their support upon what is called a principle of comity, yet courts of justice, unless a different rule is indicated by the sovereign, give to the principle the effect of an imperative rule. If, therefore, the territory referred to in the case now under consideration, had passed into the possession of Michigan, it is scarcely to be doubted that her courts even, would have given effect to ' the proceedings now relied on. They could have declined to do so, only on the ground that the power of Ohio had not been, in fact, established and maintained. But, however that be, no instance can be found, in which sovereignty in fact is legalized, by treaty or otherwise, and followed by a permanent occupation of the territory, where such proceedings are annulled afterwards; and such an act would be as absurd and as unjust, as it is unprecedented.
    These considerations would be decisive, if the position of Ohio had been that of a state in all respects independent; and it seems clear that she is to be viewed as having been so in the circumstances which actually occurred. If she could have been subjected at all, to the action of the judicial power of the United States, she was not attempted to be so subjected, and was left to pursue her own remedies; and these were precisely such as appertain to an independent state, and they were employed without any question as to their legality, whatever may have been said of the nature of the right thus enforced. Claiming that the territory in question was embraced within her boundaries, she took actual possession of that territory,- and therein established municipal government, and maintained that possession and that government, always afterwards. It is not for its courts now to declare these acts to have been illegal, and to visit upon individuals the consequences of the errors of its authorized agents. Its courts had full jurisdiction, co-extensive with the limits of its sovereignty, and that sovereignty existed wherever it was exercised, and (if resisted) sustained. There was a jurisdiction de facto, and that was a jurisdiction de jure, for the purpose of protecting individual rights. Iowa v. Missouri, 7 How. 660; Plymouth v. Painter, 17 Conn. 585 ; Hoagland v. Culvert, 1 Spencer 387 ; Merchants’ Bank v. Chester, 6 Humph. 458; Rives v. Petit, 4 Pike 582, (Ark.) ; Burke v. Elliott, 4 Iredell 355 ; Gilliam v. Reddick,. Ib. 368 ; Schlencker v. Risley, 3 Scam. 483 ; Fleeger v. Pool, 1 McLean 185.
    The argument thus adduced is believed never to have been unsuccessfully urged before. The principle has been frequently invoked, and receives illustration in numerous cases. One who has intruded himself into a public office may, by a proper judicial proceeding, be removed from that office, but so long as he continues in office, his acts will be binding on third persons. There is no instance in which the validity of his acts can be determined by a trial of his title to the office. If there is any such principle, there can- be no rule to limit its operations, and the judgment and decrees of the judge on the bench may be impeached under process issuing to enforce thorn. And even the title of the law makers themselves may be impeached, whenever an individual finds it inconvenient to obey the law.
    Possession is, in all cases, evidence of title, and it is conclusive evidence in all cases, except those instituted for the very purpose of trying the title. In all other cases it proves the ownership of property, and the legitimacy of power. Such a rule is indispensable for the prevention of disturbance, and for the repose and security of individual rights, and it is one of indisputable authority, and clearly applicable to a case like the present. 17 Conn. Rep. 585; 1 Spencer Rep. 387; 6 Humph. 458.
    IV. The jurisdiction of the court to support the chancery proceedings relied on by the plaintiff in error, has been treated by the court as turning upon the title of the State of Ohio to the disputed territory, and the foregoing considerations have been brought into the case to show that they are entitled to be sustained upon grounds wholly independent of that question. But suppose the title is regarded as necessarily involved in the decision of the ease, how, upon what principle of law or fact, is it to be determined ? Can such a question be brought into a cause, and tried before a court and jury ? Can a question of state boundary be thus determined ? Can not the state itself, fix and establish its own limits ? And is not the act by which it does so, binding upon its own courts and citizens ? It is insisted that this question of boundary is a political question, and that, if it can be raised in a court of justice at all, the boundary, and consequently the territorial jurisdiction of the state is to be conclusively deemed to be that which the state has itself asserted it to be. If the point were before the federal courts, upon the direct question of boundary, its merits would be properly presented for consideration. If it were therein raised incidentally, it would, upon a principle already stated, be decided in favor of the 'actual possession. But no state court has jurisdiction of the question of boundary at all; it is a question involving the sovereign rights of the states, in respect to which they are independent of each other, and free to act for themselves, until they are brought under the operation of the judicial power of the United States. And the mode of that independent action is necessarily that in which the state sustains its relations with other states. It has a right to maintain the possession of its own territory, and for that purpose to declare and fix the boundaries by which it is described; and these powers appertain exclusively to the law and treaty making departments of its government, whose action must necessarily conclude the question in all the forms in which it is capable cf being presented. ’ Commonwealth v. Blodgett, 12 Met. 56; Bedel v. Loomis, 9 New Hamp. Rep. 9.

      Hill & Perigo, for defendant.
    The bill of exceptions shows what the “ agreed statement of facts” contained, offered on the part of the plaintiff in the common pleas, and it is safe to say, that this part of that statement showed a prima facie right to recover. Sutphen was the common source of title; he conveyed to Stevens, who went into posssession. Daniels some time after ejected him, and continues to hold him out. Against this prima facie case, Daniels introduces the records in chancery, in the case of Comstock v. Sutphen, and the deed from Comstock to himself; and Stevens rebuts, by showing that the bill in chancery was filed at a place, against a person, and in respect to property, where, and over which the court had no jurisdiction, and, per consequence, that the proceedings are void. And so the court below held, and gave judgment accordingly. Against this judgment,’ following, the exceptions taken, we suppose that three objections will be urged by the plaintiff in error.

      I. That the court erred in receiving the evidence, in the “ agreed statement.” But this alleged error cannot be sustained, for at least four good reasons. It was offered and received by common consent. No one objected. The parties had agreed that the case should be decided upon those facts, and the facts in support of the plaintiff’s case below were admissible and competent.
    II. As the second, third and fourth errors are the same in substance, we propose to consider them together; and we claim that, without any reference to the question of jurisdiction, as the legal title was in Sutphen, at the time of his conveyance to Stevens, it necessarily passed to Stevens, and there being no conveyance from Stevens, his right to recover was placed beyond dispute. Stevens was not a party, nor privy, to the proceedings in chancery; and whatever effect those proceedings might have upon the equitable title to the land, they certainly did not reach the legal title, held by him; and as the court, in an action of ejectment, has nothing to do with the equities between the parties, Stevens, holding the legal title, was entitled to recover. 13 Ohio Rep. 268.
    But waiving this view of the case, Stevens ivas still entitled to recover, for the courts of this state had no jurisdiction over the land in question, until the 15th of June, 1836, when the boundary line between Ohio and Michigan was changed and established north of this land, by act of congress. 5 U. S. Statutes at Large 49.
    This question of state jurisdiction became a very important one in Piatt v. Oliver et al., 1 McLean 267 ; and on pages 282, 283 and 284, Judge McLean’s opinion will be found, clearly establishing the right of jurisdiction to be in Michigan, and a total want of it in Ohio, until changed by said act of congress. Oliver and others appealed to the supreme court of the United States, and there (3 How. Rep. 333), the question of state jurisdiction was fully discussed by counsel, as involving title to 'other lands in Toledo, acquired under pro ceedings of Michigan courts, both at .law and in equity. The supreme court, in passing upon the case, (see 3 How. Rep. 405, ’6, ’7 and ’8,) treat the jurisdiction as being rightfully and clearly in Michigan. This, we suppose, should be conclusive ; and if we look to the legislation on this question of boundary, we shall find nothing to weaken the position ol the defendant in error.
    By the constitution of the state, the Fulton line is made the northern boundary, and then it is provided that if a due east line from the southerly bend of Lake Michigan should fall south of the north cape of Maumee bay, that then, “ with the assent of congress,” the boundary should be extended north to a direct line running from the southerly bend of lake Michigan to the northern cape of Maumee bay. The consent of congress being thus made necessary as a condition precedent to any deviation from a due east line, such line being run, constituted the northern boundary of Ohio, until changed under the sanction of congress. And no question can arise as to the power of congress to act in the case, as Ohio, in her constitution, made the consent of congress a condition, precedent and indispensable. It is clear, therefore, that the jurisdiction of Ohio could not be legally exercised north of the east line, without the assent of congress to a new ’line. For the purpose of giving that assent, it was enacted by congress, “ that the northern boundary line of the State of Ohio, shall be established at, and shall be a direct line,” etc., i. e., the Harris line.
    Again, our own legislation shows that the state had not exercised jurisdiction north of the Fulton line, until 1835. By the act of February 23, 1835 (vol. 33 O. L. 92), the counties along the Michigan border were required to “ extend” their jurisdiction to the Harris line. The disputed territory how in Lucas county, the act declares “ shall be, and the same is hereby declared to be attached to the county of Wood,” a county which, before that enactment, though intended to rest upon the northern boundary of the State, had, in fact, extended no further north than the Fulton line.
    This act of February 23,1835, ordered elections tojbe held throughout the disputed territory, but provided that those then holding office there, under Michigan authority, should remain in office until such elections should be held.
    Properly speaking, the case is not one of disputed boundary. In such case, the settlement of boundary shows whether the jurisdiction exercised was rightful or wrongful. But here 'there is clear and undisputed right in Michigan, long acquiesced in on the part of this state, and clear usurpation on the part of Ohio, so far as it did any act north of the Fulton line, prior to the act of congress, changing the boundary.
    Now, let us apply the facts.
    When the bill was filed by Comstock, the land in question was in Michigan; the clerk's office where the bill was filed, was in Michigan; the defendant, Sutphen, lived in Michigan, and never lived in Ohio; he was served by copy of subpoena, duly left at his residence, in Michigan; and before anything further was done in the case, and before a term of court was held, and on the 16th day of July, 1836, Sutphen removed from Toledo, to Berrien county, Michigan, where he has ever since resided. He never appeared in the suit, but the court went on to decree, and at the October term, 1836, rendered a decree pro confesso, in a case where, aside from the question of jurisdiction, the complainant had no equity. The case is without jurisdiction as to the filing of the bill, and the service of process, without jurisdiction as to the territory, the person named defendant, and the subject-matter of the suit. Nor was the least effectual jurisdiction in any manner after-wards acquired. The whole proceeding, then, was unauthorized and absolutely void. A decree in one State cannot operate on the title to land in another. 2 Dan’l Ch. Prac. 1209, bottom note 1; 1 McLean 167, 200; Willis v. Cowper, 2 O. Rep. 124; Henry v. Doctor, 9 O. Rep. 49. The proceedings of a court not having jurisdiction, are wholly void and not voidable merely. 13 O. Rep. 218, and the cases there cited; 12 Whea. R. 213, (6 U. S. Cond. Rep. 523.) And a want of jurisdiction may always be set up when the judgment or decree is sought to be enforced. 12 O. Rep. 276 ; 2 Cow. & Hill’s notes to Phil. Ev. 801; 5 Wend. 157-8 (the latter authorizing this mode of testing jurisdiction), and the de facto exercise of jurisdiction by Ohio, over the territory in question, does not help the plaintiff in error, for Michigan ex ercised jurisdiction also, until the boundary was changed by congress. Besides this, though there may be many acts in the exercise of a jurisdiction defacto, which, of necessity, must be considered ever afterwards final and conclusive, yet these acts are generally of a temporary character, and the rule which forbids their review has no sort of application to proceedings permanently affecting the title of real estate. A state, na more than an individual, can grant that which does not belong' to it. And what it cannot do directly, it cannot do by indirection, through its courts or otherwise. Fleeger v. Pool, 1 McLean 185, 190.
    And now, in what manner has this decree of specific performance, rendered against Sutphen, and in favor of Comstock, and providing that, in default of such performance, the decree should operate as a conveyance from Sutphen to Comstock, void when rendered, become valid?

    We suppose that counsel for the plaintiff in error will answer, by referring to the bill of review, afterwards filed by Sutphen, to. reverse the above decree — the filing of a demurrer thereto by Comstock, and the dismissal of that bill by the court, and claim, that by some mysterious, retroactive influence, this dismissal of a bill of review, brought to reverse a void decree, rendered that void decree valid. But to save the reputation of the common pleas, we beg leave to say, that the court, in point of fact, could have had no agency in rendering either decree.
    We admit that a bill regularly dismissed upon the merits, may' be pleaded in bar of a new bill for the same matter, (2 Dan’l Ch. Pr. 758, note 8,) but a decree dismissing a bill for specific performance, does not bar a suit at law, to enforce the .contract. Ib. 1200, note 4. By claiming any healing powers for this decree of dismissal, the plaintiff must assume that the court of common pleas had power to make a void

      decree valid, and that that power had been exerted by merely refusing to reverse-nothing. For void things are as no things, and if the court had no -jurisdiction for the purpose of making a valid decree out of nothing, by a bill of review, giv ing to this nothing not only vitality and power, but a retroactive effect upon land titles, against persons who were neither parties or privies, then the decree of dismissal amounts to nothing. The dismissal, absolutely, of a bill by a court, which had no jurisdiction of the case, is no bar to another suit. Lancaster v. Lair, 1 Dana 109; 2 Dan’l Ch. Prac. 952, note 1.
    The bill of review, and dismissal. of the same, we suppose has the same effect as the quashing of a writ of error, brought to reverse a void judgment at law, i. e., 'to leave it void.

    As to Stevens, was there a lis pendens? We contend not, for aside from his not being party or privy to the chancery proceedings, it cannot be said that the first bill was ever legally pending, and certainly not until after the conveyance by Sutphen to Stevens.
   Hitchcock, C. J.

The questions raised in this case are important, and are fairly presented in the bill of exceptions. These questions are not so important as respects the parties litigant, as they are in view of the consequences which may result from their determination, one way or the other.

The facts of the case, as disclosed in the bill of exceptions, are these: The land in controversy is in the north part of the state, and north of the line designated by the act of congress authorizing the people of the eastern division of the territory north-west of Ohio to organize a state government, as the northern boundary line of the contemplated state. J. V. C. Sutphen was the legal owner of this land until October 26, 1836, when he conveyed the same to Stevens, the lessor of the original plaintiff. Previous to this time, however, Sutphen had entered into contract with one Stephen B. Comstock, under whom the plaintiff in error claims title, to sell and convey the premises to him, Comstock. On the 26th April, 1836, Comstock caused a bill in chancery to be filed in the clerk’s office of the court of common pleas of Lucas county, to compel the specific performance of this contract. On the 28th day of the same month, a subpoena was issued, and returned by the sheriff on the same day, that he had served the same by leaving a copy at the usual place of residence of the said Sutphen. It is agreed, in the statement of facts, that Sutphen was absent from home at the time, and that his place of residence, at which the copy was left, was north of the aforementioned boundary line, and within the territorial limits of Michigan, as designated by the boundaries of that territory, specified in the act of congress erecting and organizing the territory. It appears, however, that he knew of the pendency of the suit, previous to the rendition of the decree. '

This case of Comstock v. Sutphen was continued until the November term of the court of common pleas, 1836, when, Sutphen having failed to answer, a decree was entered against him pro confesso, by the terms of which it was provided that if a deed was not executed, the decree should operate as a conveyance, pursuant to the statute of Ohio, in such case made and provided. Subsequently a bill of review was prosecuted, but this was dismissed. Comstock, claiming title under this decree, made a deed of conveyance to the plaintiff in error. If the court of common pleas had jurisdiction of the person of Sutphen, .and of the subject-matter, the title of the plaintiff in error was complete, and both the court of common pleas and supreme court erred; for although the deed from Sutphen to Stevens was anterior in date to the decree, still that deed was executed during the pendency of the suit in chancery, and in such circumstances it is right and proper to hold that the decree overreaches and is paramount to the deed.

It is further admitted in the case, that from the organization of the territory of Michigan, she exercised jurisdiction over the country north of the line before referred to, as designated by congress for the north line of Ohio, and continued to exercise the same jurisdiction until the act of congress of 23d June, 1836, when another line was designated as the northern boundary of Ohio, and the southern boundary of Michigan. Further it is admitted that Sutphen resided north of that line, and that he was at no time within what Michigan admitted to be the true boundary of Ohio. The land in con troversy is north of the same line.

As before stated, one question raised, and the great question in the case, is a question of jurisdiction. A court of chancery, like a court of law, must have jurisdiction of 'the subject-matter, and of the person. So far as proceedings in our own state are concerned, the mode of acquiring jurisdiction of the person is prescribed by law. If the defendant be a resident, jurisdiction is acquired by service of a subpoena, but if a non-resident, and the court have jurisdiction of the subject-matter, then other modes of giving notice are specified. Although the defendant may not be a resident, still if within the jurisdiction, at any time, he may be served with subpoena while so within the jurisdiction. But I presume it will not be contended that a subpoena served in another state or territory, will confer upon a court in this state jurisdiction. Before a decree can be operative, the court must have jurisdiction of the person, as well as of the subject-matter.

Under our law it is provided that a decree for the conveyance of land shall operate as a conveyance. But in order that a decree shall thus operate, the land itself must be within the jurisdiction of the court. If the land, which is the subject matter in controversy or of the decree, is within a foreign jurisdiction, the decree cannot operate as a conveyance. It must be enforced by attachment or otherwise, as the case may require.

Again, if at the time of filing a bill, the land which is the subject-matter of controversy, is within a foreign jurisdiction, we apprehend that the final decree could not operate as a conveyance, although at the time of the rendition of the decree, the land might be within the jurisdiction of the court rendering it.

Applying these principles to the case now under consideration, it follows, that if Sutphen, at the time of the service of the subpoena, was within the jurisdiction of Michigan, the court of Ohio did not get jurisdiction of his person by that service, and could not upon that service render a valid decree against him. If at the time of the filing of the bill, and the institution of the proceedings, the land was within the jurisdiction of Michigan, the final decree would not operate as a conveyance of that land. /

It will be seen that the whole difficulty in the case grows out of the contested boundary question between Ohio and Michigan, and which at one time threatened serious consequences. On the 30th April, 1802, the congress of the United States enacted a law “ to enable the people of the eastern division of the territory northwest of the river Ohio, to form a constitution and state government, and for the admission of the same into the Union,” etc. (Swan’s Land L. 221.) The second section of said act is as follows:

“ That the said state shall consist of all the territory included within the following boundaries, to wit: bounded on the east by the Pennsylvania line, on the south by the Ohio river, to the mouth of the Greaf Miami, on the west by a line drawn due north from the mouth of the Great Miami aforesaid, and on the north by an east and west line draivn through the southerly extreme of Lake Michigan, running east, after intersecting the due north line aforesaid, from the mouth of the Crreat Miami, until it shall intersect Lake JErie, or the territorial line, and thence with the same through Lake JErie to the Pennsylvania line aforesaid.”

Pursuant to this law the present constitution of Ohio was formed, and a government organized. In the 6th section of the seventh article the boundaries of the state are specified, and in giving these boundaries, the precise words of the second section of the before recited act of congress are used, but the same are followed by a provision in these words: “ Provided always, and it is hereby fully understood and declared by this convention, that if the southerly bend or extreme of Lake Michigan should extend so far south that a line drawn due east from it should not intersect Lake Erie, or if it should intersect the said Lake Erie, east of the line of the mouth of the Miami river of the Lake, then and in that case, with the assent of the congress of the United States, the northern boundary of this state shall be established by, and extended to a direct line running from the southern extremity of Lake Michigan, to the most northerly cape of the Miami Bay, after intersecting the due north line from the mouth of the Great Miami river as aforesaid, thence northeast to the territorial line, and by the said territorial line, to the Pennsylvania line.

This proviso was probably introduced in consequence of the uncertainty which prevailed as to the latitude of the southern extreme of Lake Michigan, which when explored was found to be much further south than was supposed at the time of the passage of the aforesaid act of congress, and of the formation of the constitution of Ohio.

Under this constitution, Ohio was admitted into the Union, but there was ho express assent by congress to the change of this northern boundary line.

In 1805, by a law of congress, the territory of Michigan was constituted and organized. By this act the southern boundary is described as a line running due east from the most southern extreme or bend of Lake Michigan. It is in fact the same line which in the act of 1802, before referred to, is described as the northern boundary of the then contemplated state, which was afterwards organized by the name of Ohio.

This act for the erection of the territory of Michigan, so far as it has any bearing upon the subject, instead of showing any assent on the part of congress to the change of the north line of Ohio, has a contrary effect.

As the country became better known, and the true situation of the southern extreme of Lake Michigan better understood, the people of Ohio became more solicitous about this northern boundary line, and various appeals were made to the general government, to have the question settled. As early as 1807 a resolution was adopted by the general assembly, as follows:

“ Whereas, the northern boundary line of this state is unsettled, and has never been ascertained, and as it is generally believed that an east and west line, drawn through the southerly extreme of Lake Michigan, running east after intersecting the due north line, will not intersect Lake Erie, or if it should intersect the said lake, it will be at a point east of the Miami of the lake;
“Resolved, by the General Assembly of the State of Ohio, That our senators and representatives in congress be instructed and required to use their influence to obtain the passage of a law to ascertain and define the northern boundary line of this state, and fix the same agreeably to the proviso contained in the sixth section of the seventh article of our constitution.”

This resolution does not indicate that, in the opinion of the body adopting it, the line in the proviso was the true boundary line. The object is to obtain an act of congress sanctioning that line.

Under the law of 1812, two lines were run by direction of the surveyor general of the United States, one in conformity with the act of congress, as copied into the constitution of Ohio, and the other as called for by the proviso in the constitution. The first of these lines was called the Fulton, and the latter the Harris line. But neither of these lines was established as the true boundary line between the State of,Ohio and the territory of Michigan, nor was there any definite action upon the subject by congress until June, 1836. The State of Ohio claimed to the diagonal line, and enforced her claim by powerful, and in the opinion of many of her citizens, by conclusive arguments. This claim was resisted by Michigan, and not acquiesced in by the United States.

Now it seems to the court, that under the circumstances of the case, we are not called upon to decide which o'f the parties to this controversy had the legal right to this territory. It is sufficient for us to ascertain which of them exercised jurisdiction'over it. We concur with plaintiff’s counsel, that it is the government de facto of a country, whose laws and proceedings are to be recognized, whether it be a government de jure or not. With us the question is, which of the two governments, Ohio or Michigan,.exercised jurisdiction over this disputed territory. And .this question is answered by the agreed case. From this it is apparent, that Michigan exercised jurisdiction to the Fulton line, and further there is nothing in the case to show that the people of the territory objected to this jurisdiction!

If, however, this had not appeared in the agreed case, it is a fact well known as matter of history. No serious attempt was made by Ohio to interfere with this jurisdiction until 1884 or ’5. There is a tradition, and I have no doubt it is founded in fact, that at an early period there was an attempt made by the court of common pleas of Wood county, soon after the organization of that county, to exercise jurisdiction north of the Fulton line, but the people refused obedience, and the attempt was abandoned. The jurisdiction of Michigan was acquiesced in. This is apparent from the action of our own general assembly upon the subject of this disputed boundary. In a memorial to congress, adopted by that body on the 22d December, 1834 (33 Ohio L. L. 438), this language is used, “ the occupation by the territory of Michigan, of an integral part of her domain, has thus far been suffered by Ohio, because of its unimportance, while the north-western quarter of the state remained a wilderness,” etc.

At the session of the general assembly at which this memorial was adopted, that body seems to have come to the determination to assert the rights of the state, without further delay, for the action of congress. By an act passed Febru ary 23d, 1835 (33 Ohio L. L. 92), entitled “ an act defining the northern boundary of certain counties in this state,” it is provided in the first section, “ that the counties of Williams, Henry, Wood,” etc., “ shall extend to, and be bounded on the north by a line run from the southern extremity of Lake Michigan, to the most northern cape of Maumee Bay,” etc. The same act provides that certain townships north of the Fulton line; shall be attached to the counties to which they adjoin. All the provisions of this act, go to show that up to the time of its passage, the jurisdiction over the territory had been in Michigan.

By the same act, the governor was authorized to appoint commissioners to survey the northern boundary of the state, according to the proviso in the constitution. Commissioners were appointed accordingly, but they were prevented from running this line by the people of Michigan. In consequence of this failure, and the resistance of Michigan, the general assembly was convened in special session on the 8th of June, 1835, at which session the county of Lucas was organized, made up in a great measure of this disputed territory. This, however, did not quiet the difficulty, for although the court of common pleas attempted to exercise, and did, to a certain' extent, exercise jurisdiction, still, according to the agreed case, Michigan exercised the same jurisdiction as before. The difficulty was not ended until June, 1836, when congress passed a law fixing this boundary in accordance with the wishes of Ohio.

Now if, after the action of the general assembly before referred to, the people in the territory had submitted to the jurisdiction of Ohio, we should have had no difficulty in the case. But when the case shows that the jurisdiction of Michigan was still exercised and still acquiesced in, we incline to the opinion that the court of common pleas did not, by the service of the subpoena, obtain jurisdiction of the person of Sutphen.

But it is argued by counsel for plaintiff in error, that this is a question with respect to which this court has no right to inquire. That the general assembly, having by law extended the jurisdiction of the state over this territory, this court has no right to inquire as to the right of the matter, but musts be bound by, and enforce the law. We cannot admit the -correctness of this principle to the extent claimed. Suppose the general assembly should attempt to extend the western counties of the state into Indiana, or the southern into Kentucky or Virginia, would this court, in its action, be bound to enforce said law ? Would it be bound to disregard the boundaries of the state as fixed in the constitution. We think not.

I presume that it will not be insisted that if this, territory was not within the rightful boundary of Ohio, she had such exclusive jurisdiction as would be recognized when opposed to that of Michigan. Upon this question of right, we have a decision of the circuit court of the United States, and also of the supreme court. In the case of Piatt v. Oliver et al. (2 M’Lean’s Rep. 267), Judge M’Lean, after a careful examination of this subject, comes to the conclusion, and so decides, that the line drawn due west, from the southermost extreme of L'ake Michigan, was the true boundary line between Ohio and Michigan, until altered by the law of congress of June, 1836. The supreme court of the United States, in considering the same case, treats the jurisdiction as being rightfully in Michigan. 3 Howard’s R. 333.

These authorities are entitled to great respect, especially in -a question like the one now raised, where the jurisdiction of a court in a particular case depends upon ascertaining whether the residence of a defendant was within one or another jurisdiction.

Upon a full consideration of the case, we are of opinion that there was no error in the judgment of the supreme court, and the same is affirmed.