author: Lane, C. J.

text:
    *Beall, Salmond, and others v. William Price and others.
    A purchaser who loses a title which depends on an administrator’s sale, can set up no equity on the estate of the decedent by reason of appropriation of his purchase money to the debts of the decedents.
    Where a void decree is made by a Virginia court, for the sale of Ohio lands,, one of the heirs who assents to the decree and the sale, and acts as commissioner to carry it into execution, passes his own title in equity.
    This is a bill in chancery, from Franklin county.
    The bill, amendment, and supplemental bill present this'ease: One William Price lived in Richmond, Virginia, and died there in 1808. His children and representatives were as follows t Lucy, his widow, a party to this bill, but who has died since it was filed; William D. Price, a defendant; James P. Price, a defendant; Alexander Price, died a minor without issue; John U. Price, and Ann Price, married to Alfred Soyburn, defendants.
    On the death of Price, William Duval was appointed his administrator, in Virginia; he was a party to this bill, but has died, and S. B. Johnson has been appointed administrator de bonis non, in Ohio, of William Price. Andrew Keys is Duval’s administrator in Ohio; both parties to this bill.
    Price’s estate, when ho died, was greatly embarrassed. Duval, his administrator, a near relative of the family, and a man of integrity and uprightness, applied all the assets in Virginia to the payment of debts, and from time to time settled his accounts with the probate court, as per record exhibited. On one of those settlements, in 1821, it was found that Duval had advanced, out of his own money, $22,056.76. Besides this debt, there were many others very pressing; especially one of about $1,500, due to the heirs of one Means, who held the legal title to the lands now in controversy, and some others of which a partition had just then been made; and the paj'-ment of said $1,500 had to be made before the legal title could be conveyed to said Price’s heirs. To meet all these, and sundry *other claims, there was no property but a large body of Ohio lands. Things being in this condition, one Monecure, and sundry other creditors, filed thoir bill in the superior coutt of chancery in Virginia, against the administrator, widow, and heirs of said Price, setting out their debts, and charging that the Ohio lands were liable to pay th'ém, and praying that they might be sold, etc. This bill was filed in 1821, and duly answered.
    On November 9, 1821, the day before the decree passed in the chancery suit, the parties being anxious to subject the Ohio lands, entered into the following agreement, which was filed in the case and made the foundation of the decree;
    “We, Robert Douthal and William D. Price, guardians of James Price, Alexander, J. BL, and Ann Price, orphans of William Price, deceased, and Lucy Price, widow and relict of William Price, deceased, do consent to the sale of 15,800 acres of land, lying in the State of Ohio, and allotted to the heirs of Price in a late division between Means’ executors and heirs (see report in superior chancery district court, in the city of Richmond), at tho Eagle Hotel in the city of Richmond, under a decree of Henrico court, on advertising the time and place of sale, for eight weeks, in the Richmond Enquirer.
    “ In tho first place, we request that as much of said land be sold, on a credit of ninety days, and to take thereior good negotiable notes, with one or more indorsers, payable in one of the banks of the city of Richmond, as will satisfy the sum of-, with the interest (hereon, which is due to Means’ executors for taxes.

      “2. That the sum of-be paid to Eleanor and Lavinia Dan* dridge, orphans of William Dandridge, deceased, in the following sum, to wit: To Juliana E. Dandridge, $82.90, and to Lavinia W. Dandridge, $141.83, with interest on both sums from April 9,1810, in like negotiable notes, on six months’ credit, from the day of sale. And that the residuo of said lands be sold on throe, six, and nine months’ credit, with interest from the day of sale, and to take bonds or negotiable notes to satisfy the complainants and the other creditors tho sums due to them respectively, with tho interest thereon, aR may appear by the schedule annexed to tho answer of the administrator of William Price, deceased, provided ¡Íhat the average price of the said lands sell for eight shillings per ,4,cre; and Lucy Price, another subscriber, the relict of said William Price, deceased, provided she receives one-ninth part of the ■whole part in cash, bonds, or negotiable notes, consents to release lier right of dower to the said land ; and we agree and consent Uiat all the creditors, after the three first-mentioned debts shall •be paid, may bid to the amount of their several claims, if they ■choose to do so, and for that amount shall have credit therefor as ¡cash purchasers; reserving a right, in case said land do not average.eight shillings an acre, being, as we deem it, one-half its value, •to resort to the said county court to sell the residue of said lands (except .as to those first-mentioned debts, which are to be paid at all events, sell the land for what it may), at Chillicothe, in tho State of Ohio, on such terms, as said court may think just and equitable.
    *“And we, the subscribers, request that Daniel Call and William Duval, or either of them in the event of disability of the other, be appointed commissioners to execute the sale and make conveyances agreeable to the decree of the court aforesaid, with the privilege of receiving for their trouble - per cent. As witness our hands this November 9, 1821.
    “ Robert Douthal,
    ¥i. D. Price,
    Lucy Price.
    “ I, William Duval, as administrator of William Price, deceased, consent to the above agreement.
    “William Duval.”
    This was a family arrangement, entered into bona fide, signed by the general guardians of the infants, and also signed by William D. Price himself, then of full age, and filed in court as such; and upon this agreement and arrangement the court, the next day, pronounced a decree in conformity therewith. The decree was carried into execution accordingly, and the lands were at once offered’for sale at the Eagle Hotel, in Richmond. At this sale Duval, under whom the complainants in this suit claim title, purchased about $22,000 worth of the lands on his debt, mostly at $1.50 per acre, and none less than one dollar — being more than an average of eight shillings. His purchase was confirmed by the court, and the estate was credited the full amount of his purchase. And he paid up other debts. The court ordered a deed to be made, which was done, the same being executed by the commissioners, the said William D. Price being one of the commissioners, substituted by the court in the place of Call; all which appears on the records of the superior court of chancery. And under this deed, so made to Duval, the complainants hold, more or less remotely, and have so held many years.
    The complainants then come into this court and claim:
    1. That they may be quieted in their possession; if this can not be done, then :
    2. That they have, at any rate, a right to William D. Price’s share, being one-fifth, which gives them a right to partition.
    3. Relief under the occupying claimant law.
    4. The title failing, the lands arc liable still for Price’s debts ; and the estate being unsettled, and Price’s administrator *and Duval’s administrator being before the court, a final settlement will be made under the order of this court, permitting the complainants, on their warranty from Duval (his estate being insolvent), to be paid out of’ the proceeds of these lands when sold under the order of this court; reference to a master to inquire into all the accounts, amount of Price’s debts, unpaid, is also prayed.
    The bill charges that the lands wore bought in by Duval for more than they were worth, and for considerably more than he sold them for.
    It charges Duval’s estate to bo insolvent.
    And sets out the lands particularly sold under the decree in Virginia.
    That lands in Virginia were not subject to the payment of such debts.
    In the common pleas a demurrer was put in, which, on argument, was overruled.
    William D. Price makes no defense.
    The other heirs of Price answer, admitting the administration, etc., on their father’s estate. Admit the decree in chancery in Virginia, but deny they are bound by it. Insist that their father died possessed of great property, much more than enough to pay his debts; that a largo real estate still remains in Virginia; deny the equitable rights of the complainants; deny that the proceeds of the sale, at the Eagle Hotel, in Virginia, were applied to the payment of the debts of the estate. They admit the estate of Price has never been finally closed, but deny all right of the complainants to look to said lands ior payment of their purchase money. They call for proof of the material allegations in the bill not admitted. They set up their minority, and insist they are not bound by the proceedings in Virginia. They deny that the complainants have the share cf William D. Price. They admit the judgment in the United States'court, with the understanding it should not prejudice any rights in a court of equity.
    Andrew Keys, administrator of Duval, answers, admitting, as far as he knows, and as far as the records in Virginia show-, *the sale set out in the bill and the other proceedings, and supposes everything was done in good faith and for the interest of Price’s estate, without any fraud or sinister design. That, as it appears from said records, said Duval, after he had bought in said lands, went on and paid other 'debts to the amount of $6,966.22, for which, and for his other debts, all that he over received was the lands he bought under said decree; and he is informed Duval sold the lands for considerable less than he gave for them. If said sale is void, then he claims that Price’s estato is bound to refund to him the purchase money he paid to the estate, and that the lands ought to be sold for that purpose, so that he may have means to meet his intestate’s warranty on his sale to the complainants, or those under whom they claim, he having no assets to meet tboso claims, nor expecting any except from said Price’s estate.
    S. B. Johnson, administrator de bonis non of William Price, answers, that he believes all the estate of Price, in Virginia, liable for his debts, has been exhausted; that he has no assets in his hands, and knows of none, except the lands in controversy, if the title of the present occupants should fail.
    Exhibits: 1. Sundry records from Virginia, showing the substance of the case as mado out in the bill.
    2. Sundry deeds of Duval, with covenants, showing his liability if the title fails. William D. Price joins in the execution of these deeds, ho being one of the commissioners.
    P. B. Wilcox, for complainants :
    It will hardly be questioned but the complainants have a perfect right in equity to William D. Price’s share, viz: one-fifth. He was of full ago, and signed the agreement on which the decree in Virginia was founded, and executed the deeds as one of the commissioners. “It is a well-established principle in equity that if a person, having a right to an estate, permit or encourage a purchaser to buyit of another, the purchaser shall hold it against the person who has the right; and this rule prevails even against femes covert and minors.” Smiley v. Wright, *5 Ohio, 336. This court, then, has jurisdiction to give the complainants one-fifth of the legal title; and so the whole case is within their jurisdiction.
    Has not this court power, over the other heirs of Price, to stop them effectually from any further disturbing the complainants in their possession ?
    Can they bo brought within the rule laid down by this court, just cited, “that if a person, having aright to an estate, permit or encourage a purchaser to buy it of another, the purchaser shall hold it against the person who has the right; and this rule prevails even against femes covert and minors?” 5 Ohio, 336.
    Or, can they be saved by the rule “that whatsoever an infant is bound to do by law, the same shall bind him, albeit he doth it without suit at law.” Co. Lit. 172, a. That is, inasmuch as the law would compel a sale of these lands to pay debts, they having been thus sold, is not the sale binding ? Or, can Price’s heirs gainsay it? Or, can the sale be held good in analogy to family set. tlements on marriage, in England, which, in some eases seem to be held binding on infants, especially as to pei-sonal estate?
    If all these fail, wo then appeal to the wisdom and experience of the court to apply some relief, if there bo any; otherwise, some twenty-eight or thirty men,»farmers, most of them past middlo life, who went onto these lands in good faith in a wild state, and have spent the best of their lives and strength in improving them, must be pretty nearly ruined.
    But, if the title has to go, then how does the case stand before the court, and what relief can the court give?
    1. We aro entitled to a decree against Wm. D. Price for the legal title of his share — that is, one-fifth of the estate.
    2. We then are entitled to partition.
    3. Wm. Price’s estate is yet unsettled. The title to these lands failing, Duval’s estate has ajustclaimon Price’s estate for the $22,000 advanced by Duval to pay Price’s debts. This $22,000 was money actually advanced by Duval, in the course of his administration, Duval died, leaving the estate ^unsettled. Duval, then, has never received anything for this $22,000, and it must stand a good charge against Price’s estate. Price’s estate has no other assets but these lands, so his administrator answers. Duval’s estate is liable, directly, to the complainants, on his covenants of warranty, which run with the land, as fully settled by this court. Duval’s administrator has no assets; his estate is insolvent, except this claim of $22,000 on Price’s estate. Duval’s administrator claims this $22,000, and such interest as he is ontitled to, and is then willing to pay the complainants, under the order of this court, whatever Duval is liable for on his warranty.
    The parties are now all before the court; Price’s heirs, Price’s administrator, Duval’s administrator, and all the creditors of Price, and Duval’s creditors. Wo then claim that this court, having jurisdiction for one purpose, will use it for all purposes. They will not only decree us one-fifth of the legal title and partition, but will go on and close up the whole affair ; will direct the master to state an account in full between all- the partios; will order the lands to be sold, and the proceeds distributed among the creditors. Suppose this court stop short, and leave the parties to their respective remedies; there must, of course, a multiplicity of litigation ensue. There will have to be some twenty-eight or thirty actions of covenant against Duval’s administrator. Duval’s estate must sue Price’s estate, and Price’s administrator will have to apply to the court for leave to sell these same lands. All this litigation maybe av.oided by a single decree of this court, the parties being now all before the court, and their rights definitely ascertained and understood. In the case of Leiby v. Parks et al., 4 Ohio, 493, the court intimate that if the administrator had been before the court, they might have given relief. The court say: “ If the complainant has a right to recover any part of the purchase money paid by Parks to the administrators of Ludlow, the administrators must undoubtedly be parties to the suit.” But we think the question is at rest in this court. “ In cases of decedents* estates, whore the administrator is before the court, equity will so shape the proceedings as to settle the ^estate.” Piatt v. St. Clair’s Heirs, 6 Ohio, 227; Ib. 103; S. P., Stiver v. Stiver, 8 Ohio, 217; Mattoon v. Clapp, 8 Ohio, 248; S. P., 1 Story’s Equity, 515; Cram v. Green, 6 Ohio, 429; 11 Ohio, 273.
    It would be most ruinous to compel these complainants to go back and begin their actions of covenant at law, and then wait till the lands can be reached in the hands of Price’s administrator. They might, almost, as well give up at once. They can not commence their actions till the balance is struck in this court, under the occupying claimant law ; and thou years must elapse before they get relief, especially if delayed by appeal to thi.ti court.
    H. Stanbery, for defendants :
    I do not understand that the complainants insist that the lands in question wore affected by the proceedings in Yirginia. The sale under the Yirginia decree was wholly void. No question can be raised upon that, or is bettor settled. 1 Ohio, 522; 2 Ohio, 393; Story’s Conflict of Laws, 463, sec. 551.
    It is claimed that the interest of William D. Price, one of the five heirs of William Price, did pass — not by the sale, but by his conveyance as one of the commissioners — and that the complainants, being invested with that interest, an undivided one-fifth, are entitled to partition.
    This, says complainants’ counsel, gives them a footing in equity; and, having obtained that, and proceeding upon the' familiar rule that equity, having obtained jurisdiction for one purpose, will entertain the case for all other purposes which are within its powers, he claims that the court will:
    1. Decree partition, setting off to complainants one-fifth.
    2. Give complainants relief, under the occupying claimant law, for their improvements.
    3. Decree that the heirs of Price pay Duval’s administrator.the $22,000 which Duval.bid for the lands, and interest.
    *4. That Duval’s administrator pay complainants four-fifths of the money Duval got for the lands, when ho sold, or rather four-fifths of what Duval may bo bound, by his covenants of warranty, to pay.
    5. If such payment be not made by Duval’s administrator, that the lands be sold to raise a fund for payment.
    • Let us first inquire whether the foundation for all this relief, the right of partition, is made out.
    Tho bill is, in no case, a hill for partition. It seeks to enjoin a judgment at law, upon totally different grounds, and asks specific relief, wholly inconsistent with any such claim. It is incidentally stated that the complainants are entitled to partition of William D. Price’s one-fifth, but there is no prayer for partition, and no statement to show how they claim or hold that interest.
    Hero are twenty-seven complainants, holding as many different tracts of land, not as tenants in common, but by distinct titles. Each one must stand upon his own title, whatever it is; and if the defendants, or either of them, have an undivided interest in his tract, he must file his petition or hill against them. In such bill, or petition, each must set forth the nature of his title, describe sufficiently his tract, and make the other tenants in common party defendant.
    What sort of bill for partition have we in the case at bar? If we admit that William D. Price’s ono-fiflh passed to Duval by the deed of William D. Price, in his capacity of commissioner, there is nothing to show how that interest came to these complainants. It is not alleged or pretended that they are tenants in common among themselves. What right have they, then, to unite in one bill? What interest has A. in the tract claimed by his co-plaintiff B. ?
    In Prentiss’ case, 7 Ohio, 131, where the defendants claimed distinct tracts, by separate purchases from one tenant in common, the court held that the other .tenant in common could not go against them all in one petition for partition. That decision is conclusive of this case.
    *But, if complainants were entitled to partition, let us next inquire what right they show to tho further relief claimed by complainant’s counsel.
    The counsel for complainants endeavors to work out a lien upon the four-fifths of these lands, under tho void proceedings in Virginia. He claims that, as the title fails, Duval, the purchaser at the sale in Virginia, is entitled to recover back from Price’s estate the $22,000 which ho bid for the lands ; that the complainants, by purchase from Duval, with warranty, are entitled to recover from his estate the amount of purchase money and interest, upon a like failure of title; that, upon default of payment by Price’s administrator to Duval’s administrator, and by Duval’s administrator to them, the four-fifths of these lands should be sold, to raise a fund for such payment.
    Insuperable objections present themselves to such a case. 1. Where do counsel find authority for saying that, upon failure of his title, Duval can recover back from Price’s administrator or heirs his purchase money and interest?
    His purchase was made without warranty or covenant for title. In Nowler et al. v. Coit, 1 Ohio, 522, the court say that the purchase money can not be recovered of the heirs. In Leiby v. Parks et al., 4 Ohio, 493, it is hold that the purchaser has no lten on the land. The court go on to say that if he has any relief, it must be against tho administrator. They do not say, however — for the case did not call for an opinion on that point — that a recovery can be had against the administrator.
    I do not see why the doctrine of caveat emptor does not apply. It is the common case of failure of title in a purchaser at a judicial sale. But if we arc wrong in this, and Duval’s administrator has a claim for the purchase money, it is simply as a creditor at large, without lien on these lands. See Leiby v. Parks, ut supra. That is a claim which should be mado out at law, not in chancery. Besides, this bill is not brought by Duval’s administrator. He is brought in as a defendant, and tho complainants propose that tho court should render decrees for and against him, and all without a cross-bill.
    *The next step which tho complainants ask tho court to take is, to render twenty-seven distinct decrees in their favor against Duval’s ad ministra tor*.
    I suppose this proceeds upon the idea that a court of equity is the proper forum for settling the questions which may arise upon covenants of warranty. If that were so, the proper case is not made by this bill. In the first place, it is not so much as alleged that the complainants hold by any covenants of warranty from Duval. All they show is, that they claim to have title from Duval. Is it not too clear for argument that each one of these twonty-seven purchasers must work out his own case, and that in a court of law, against Duval’s administrator? If a single complainant, in possession, may file a bill in equity to recover under his covenants for title, how can it be said that a host of purchasers, holding separate tracts by distinct covenants, can all join in one bill? This sort of case leads to such confusion, that a court, without demurrer, at the hearing, sua sponte, would refuse to entertain it. 1 Story’s Eq. Pl. 224, n. 2; 10 Ohio, 459.
    But if the complainants could get over all these difficulties, and show a subsisting indebtedness in favor of Duval’s administrator against Price’s administrator, and a subsisting indebtedness in their favor against Duval’s administrator, they would be yet a great way off the sort of relief they seek for in this bill. They are creditors at large, without judgment, of Duval. Duval’s administrator is a creditor at large, without judgment or lien, of Price. On what ground can they ask that the debt due from Price to Duval be subjected to the payment of their debts due from Duval? Excluding all other creditors, and the estate insolvent, on what principio are these creditors preferred to ail others? On what ground especially can they ask that the lands of Price be sold to pay Duval’s debt, in exclusion of all other creditors of Price?
    It seems to be claimed by counsel, though not very distinctly, that this bill may be sustained for the purpose of settling up Price’s estate. The answer to that is: 1. The frame of the bill is not of that character; 2. Such a bill *can only lie for a creditor, legatee, or heir, and these complainants do not bear either of these relations to Price’s estate. .
    As to the relief sought for improvements made, taxes, etc., it appears that several actions of ejectment were brought, some in the circuit court of the United States, others in Franklin county, and other counties, by different plaintiffs, and that judgments passed, in ail of them, against the defendants, reserving to them their just rights in equity. If this is the proper court to apply to for compensation on the score of improvements, etc., then each complainant should have exhibited his own bill. But this sort of relief is not given to a complainant in equity. There are cases in which, where the person who has made improvements is a defendant, and relief is asked against him by the holder of the paramount title, equity will only give a decree upon terms of compensation for the improvements.
    In Leiby v. Parks, 4 Ohio, 494, the court says : “ The right of a defendant, in ejectment, to recover payment for the improvements he has made on the premises recovered of him, is given by the occupying’claimant laws.- The rules and mode by which the amount shall be ascertained, are prescribed by these laws; and the proceedings are all required to be in the court of law in which the ejectment is tried. The law does not give to this court (in chancery) jurisdiction in such cases. The remedy at law is as plain and as adequate as the legislature chose to make it.” See further, on this point, Winthrop’s Adm’r v. Huntington. 3 Ohio, 332, very much such a case as this.
    T. Ewing, on the same side:
    The sale, by order of the court of chancery in Virginia, is wholly and absolutely void ; lands can be transferred, or the title to them affected, only in pursuance of the laws of the place in which they are situated. They can not be acted upon through the person of the proprietor, who resides, or who may be found in a foreign jurisdiction ; and it is believed that no Estate has ever yet conceded to a foreign tribunal the power to transfer or charge lands within it. Ohio certainly has not, and it would bo productive of the most inextricable confusion to concede that power. The authorities on this point are numerous, and they speak but one language. See Story’s Conflict of Laws, 463, sec. 551, et seq.; 2 Burr. 1079; 6 Maule & Sel. 126; 6 Binn. 359, 375, etc. Nor is the title helped,’ in the slightest degree, by the consent of the guardians to the sale. Mr. Justice Story, in his Conflict of Laws, 416, says: “No one has ever supposed that a guardian, appointed in any one state of this Union, had any right to receive the profits, or to assume the possession of the real estate of his ward in any other state, without having received a due appointment from the proper tribunals of the state where it is situate. The case falls within the well-known principle, that the rights to real property can bo acquired, changed, and lost, only according to the law m situ.”

    But in this case, not only the guardian appointed in Virginia pretends to act as to lands of his ward situated in Ohio, and absolutely alien it from his ward, but he attempts so to do, without any pretense of authority from the orphans’ court. The manner in which this transfer was attempted, was singularly irregular. If this guardian had been regularly appointed by the courts of Ohio, and by them duly authorized to make sale of the property, a consent on his part that the two commissioners appointed by the court of equity in Virginia, should make the sale, would have been wholly void, and conferred no power whatever upon such commission.
    This is by no means the case of a power defectively executed. That a court of equity will assist. But here is a total want of power; the whole transaction is. therefore, absolutely-void, and equity can not give it being and efficacy. The court could just as well decree these lands to the complainants without the aid of these proceedings, as with it — “ a decree may remedy a mistake in a conveyance by a person having power to convey, but it can not create a power.” Tiernan v. Beam et al., 2 Ohio, 393.
    *The above case, and the case of Nowler et al. v. Coit, 1 Ohio, 519, bear upon this first proposition.
    But the complainants claim .that they are entitled to a lien on the land for tho amount of money paid on the original purchase under the decree iu chancery, because that money was applied to the benefit of the estate of the ancestor, and, by reason thereof, the estate became, in equity, the debtor of the purchaser. That the purchaser became their debtor when they bought of him and paid him for the land, and they therefore have a right to charge, each, tho amount of his purchase money against the estate and obtain a decree for it payable out of the land. It is a curious proposition, but I have endeavored to state it fairly.
    If I am right on the first proposition, the sale under the decree in Virginia did not affect the land to be sold any more than any other lands which belonged to the ancestor and descended to tho heirs; it is, indeed, perfectly clear that it did not. The title to the land could not be passed, nor could it bo incumbered, or in any manner affected by the decree of a foreign court. If any obligation rested on the estate by reason of the payment of the purchase money (a question which we need not here discuss), it was a debt at large due from the estate for money paid to its use ; not even a bond debt or debt of record, but a debt arising from an implied assumpsit; and it was a debt not attached to the land or running with it, for its very origin and cause were, that there was no power or jurisdiction in the parties to the transaction, or in the court, to touch the land or attach to it any liability. I leave out of view, for the present, what may have been done by Wm. D. Price as to his own interest in it.
    Here we admit, for the sake of argument, that Duval, after bidding in these lands and paying upon them the purchase money as he failed in procuring any title to what he purchased, became a creditor .of the estate to the amount of the purchase money — a creditor at large for money paid to the use of the estate. He has no connection with this land; no right or interest in it or claim upon it. Being the creditor of the estate *of William Price, deceased, he takes upon himself to sell lands which have descended to the heirs of Price, and make deeds for it to the purchasers. Does he give those purchasers any lien on this land — ■ any right to go into equity to recover it, or to charge it with the purchase money which they may have paid, or the amount which the estate was indebted to their vendor ? In the first instance they can do neither; their connection with the land has no sanction either of law or equity, and can not aid their remedy in either court.
    If, by their purchase, they have become the creditors of Duval, and Duval, by bis purchase, was the creditor of the estate of Price, they must settle these facts judicially at law before they can go into a court of equity. The purchaser from Duval must settle at law the fact that he purchased, that he paid the purchase money, and that the contract was such that, on his title failing, he was entitled to recover back his purchase money; in short, he must get his judgment at law against Duval before he can call into equity the estate of Price and claim of that a debt due from it to Duval.
    But the complainants do not attempt, either in their original or amended bill, to trace to themselves.any title to money from the estate of Price, except through a fancied lien upon this land. They do not show how much land each or either of them purchased; of whom they purchased ; how many mesne conveyances there wore between them and Duval; how much money the original purchasers from Duval paid him, or in what sums each or any of them are entitled to be relieved. But, if equity could touch the case at all without judgments being first had at law to settle the respective claims of the parties, all these matters would have to be specifically and exactly set forth. For, admitting the complainants entitled under the branch of the case which I am now considering, the bill does not contain the elements out of which the court could make up a decree.
    ' The bill in fact sheds little light on the case. Did Duval, when he sold, give to his immediate purchasers deeds of general warranty or of quitclaim merely ? The bill does not inform *us. If the latter, neither they nor any person claiming under them have any claim against the óslate of Duval, or through him against the estate of Price. But if all these objections were disposed of, the bill in this particular right, and the relief plain, here are twenty-seven complainants, with as many distinct cases, and each one of them a complicated case, necessarily involving several parties and the settlement of several distinct interests, all seeking to try their rights and settle their interests in one suit in chancery. This can not be done if their rights be thrown upon this branch of the case ; the bill is multifarious.
    I have admitted, for the sake of argument, that Duval was entitled to the amount of his purchase money against the estate of Prico. But was he so entitled? He advanced no money to the estate for the use of the estate. Ho was a purchaser under the decree of a court of equity, and bought and paid his money for just what they had to sell to him ; and having completed his purchase, he took just the title which the court could give him. That title failing, he had no remedy over against any one. Those sales under judicial process are accompanied with no warranty by the defendant, either as to the power of the court or the officer who makes the sale, or as to the title in himself. He is passive, and the purchaser pays his price for what the law gives him. The defendant is not estopped or rebutted in law or equity by the proceedings. If the sale bo defective, he may recover back his land and no recovery over can be had against him. I know of no case in which the contrary has been held. Leiby v. Parks, 4 Ohio, 493; Nowler and others v. Coit, 1 Ib. 522. The doctrine of caveat emptor applies in all its force.
    But tho complainants contend that they are in any event entitled to the interest of William D. Price in this land, and may therefore have a decree of this court granting them partition.
    It is needless to inquire whether tho complainants derive title under William D. Price or not; for, admitting that they do, they still make no case for partition. Not one of them *sets forth his title; names the person from whom ho purchased; the quantity of land which he claims or in which he has an interest, nor oven the county in which it is situated. How can partition be ordered under such a bill? But hero are twenty-seven complainants, each claiming separate interests in distinct tracts of land lying, evidently, in different counties, who unite in a bill for partition, not among themselves, but against a third party. What have they, in common, that would enable them to unite in this bill? It is drawn in such a vague and general manner that the exact state of facts can not be elicited Irom it; but it would seem that each individual complainant is tho purchaser of a separate tract, wholly disconnected with that of every other. If the title of William D. Price passed by the sale, each purchaser would then be entitled to the undivided interest which William D. Price had in the particular tract he purchased, and he would have no interest in any other tract. He could therefore file his petition or his bill in chancery in his own proper county for partition of his own particular tract, but he could not go into another county (Swan’s Stat. 613), or join with other parties holding distinct interests. In this aspect, and for this pul-pose, the bill is multifarious.
    And so it is with their prayer for relief under the occupying claimant law. The bill with respect to that is equally vague and uncertain. But it appears that actions of ejectment were px-oseeuted by sevex’al plaintiffs, against these defendants, severally. Some in the circuit court of the United States, some in the state courts. They all come together into this court in one bill in chancery to obtain a decree, each for the excess of tho value of his improvements over the rents and profits. Can any case be conceived more strongly illustrative of the good sense of the rule which forbids the joinder of distinct Gauses of action, and separate and independent interests in one bill? There are other decisive objections to this form of relief, but it seems to me unnecessary to consider the point further. In no point of view can the bill be sustained.
    *S. Brush, for defendant, Sullivant, contended :
    1. That the sale of the lands in Ohio, by the order of the court of chancery in Virginia, was wholly void, and conferred no title either in law or equity. 1 Ohio, 522; 2 Ohio, 393; Story’s Con. L. 563, sec. 551.
    2. That complainants are not the owners of the interest of William D. Price, as claimed; because they have no deed on record, in the counties of Union and Logan, from William D. Price, for survey No. 6,154, of 1,700 acres, thore situate, which survey is owned by Sullivant and Gilbert.
    The proceedings and sale of said lands by the court of chancery of Virginia being void, any equitable interest that might have passed from William D. Price to Duval, and from him to complainants, can not be enforced against Sullivant and Gilbert, who are bona fide purchasers, without actual notice, and are not bound by constructive notice of the sále and proceedings in Virginia, they being coram nonjudice.

    The complainants are not the holders of the Duval title to survey No. 6,154, claimed by Sullivant and Gilbert.
    If defendant, Gilbert, had heard that the lands had been sold by the administrator of William Price, by order of the court of chancery of the State of Virginia, he was not bound to pursue the inquiry and examine those proceedings, which were void; and without a close examination of those records, he could not be apprised that William D. Price had parted with an equitable interest by his consent to the sale.
    3. Complainants have no lien upon this survey, No. 6,154, for the purchase money paid by complainants on the other lands to Duval, because of the objections stated in the argument of Mr. Stanbery. 1 Ohio, 522; 4 Ohio, 493; 1 Story’s Eq. 224, n. 2; 10 Ohio, 459. The complainants would only be entitled to relief in that way upon the lands which they purchased under the Duval title.
    Defendants Sullivant and Gilbert are purchasers bona fide, without actual notice of the complainant’s deeds from Duval, with warranty, of the other lands. They 'are not chargeable *with constructive notice of those deeds, and were not bound to examine the records of conveyances, by Duval, of lands in which these defendants had no interest, and to which they make no claim.
    Sullivant and Gilbert are bona fide purchasers, without actual notice, and are not chargeable with constructive notice of void proceedings in another state. They are not bound by constructive notice from the record of the deeds from Duval recorded in Ohio, as Duval was not in the connection of tho title on the roeords in Ohio. Leiby v. Wolf, 10 Ohio, 83; 14 Pick. 231; 5 Serg. & Rawle, 24, 246; 2 Binn. 40, 497; 6 Binn. 119; 2 Cow. 246.
    Complainants are not the creditors of William Price, deceased, and never were. If they have any right or claim, it is against Duval, upon his individual covenant of warranty, and their remedy is at law. Leiby v. Parks, 4 Ohio, 493.
    The estate of William Price, deceased, was settled, and his debts paid, and a small balance found due the administrator for advances. We claim that settlement to be final. All the assets were- exhausted, and all tho debts due by the intestate paid. Whether final or partial, so far as it went, it was settled, and placed the estate in the samo condition as if there were no debts originally, except that one, left unpaid. That settlement was the act of a court of competent jurisdiction, at the instance of the administrator, and upon his own statement; and by it he is barred. If not barred because he may hereafter be compelled to refund the money which went to discharge the debts, yet as to bona fide purchasers from the heirs, it is a complete shield and protection. We had a right to presume it correct. We were not bound to investigate the items of that.sottlemont. We found no debts unpaid which herealtcr might come upon the lands. Wo were not bound to ascertain from what source tho administrator procured the means to discharge the debts. He bad returned them satisfied, and the court had confirmed his return. They are satisfied yot.
    *Tho sale by Duval of this survey to Carter, as appears by the copy of the deed referred to, and made an exhibit in the answer of Gilbert, was without warranty. That deed contains no covenant upon which Duval is liable.
    What connection is there then between complainants and this defendant? If tho holders of the Duval title to this survey were in this court, claiming a lien upon the survey for their indemnity, and to prevent circuity of action, tho answer would be complete. You have no warranty, no action against Duval, and, consequently, Duval can have no action against us; for, upon the ground alone that Duval’s estate is bound to respond upon his warranties, is the whole argument predicated.
    Can the administrator sell our survey twice, and twice retain the purchase money ? He has sold it once, and paid the proceeds toward the discharge of the debts of his intestate. He is not bound to refund the purchase money to any one.
    Can he be permitted to proceed and sell that survey to create a fund, to meet his liabilities upon his. individual warranty of other lands? Can the purchasers of other lands, because they may recover at law upon their warranty, have any claim in equity to have this survey sold?
    Against whom shall such decree be made? Would it not only sweep away the right and title of -Sullivant and Gilbert, but also the right and title of the purchasers from Duval (Carter and his vendees) of this survey ?
    But it is alleged that Duval’s estate is insolvent, and for .that reason complainants should be permitted to come upon the lands. We admit the fact that the estate of Duval is insolvent, and that fact is conclusive of the argument; and in examining the position taken by the counsel for complainants on this ¡joint, I will return to the beginning corner. The ground assumed is, that Duval, alter complainants have recovered against him upon his contract of warranty, and collected the money, he, Duval, would come upon the lands.
    Could Duval, if living, after judgment against him, upon his warranty, recover over from the heirs, or proceed to sell these lands before he had paid the judgments upon the warranty? *We trow not. We suppose the doctrine well settled that he would not be damnified till payment. If insolvent and unable to pay, where is his claim? Will it be said there are judgments against him, and he may be able to pay some day? The answer is clear, he is dead, his estate is insolvent, and he has no representatives of realty or personalty who can ever be- compelled to pay. The whole argument is predicated upon the ground that Du-val has a right to sell the lands to pay a large debt in his favor against the estate of William Price, which debt was created by his advances made to pay the debts of Price. The record shows that those debts were not paid by Duval, out of his own moans, but from the proceeds of the sale of these very lands,

      If Duval were living, and had sold and conveyed without warranty, and in no manner was liable to refund the purchase money —upon a petition filed by him to sell these lands to pay the debts of Price, would it not be a sufficient answer that there were no debts to be paid, and he had no claim against the estate? It is Duval’s, not the complainants’ rights, that would be involved in that proSeeding.
    What difference would it make after judgment upon the warranty, which judgment is certain never to be paid? How then can the complainants claim that they can come upon these lands? Have they paid the debts of Price?
    No; they have an individual contract with Duval — a contact of warranty — which they took to protect them, well knowing that the whole benefit of that contract depended upon the continuing solvency and responsibility of.their warrantor. Their warrantor has died insolvent, and they are in precisely the same situation as other creditors whose debtors have failed.
    Mr. Wilcox seems to suppose that his clients should not be subject to the common lot of humanity; that, not being the favorites of foi’tune, they have a right to bo the favorites of the law.
    There is, by their own showing, no circuity of action to be prevented. There is a complete defense to the action on the warranty against the administrator of Duval — total want of ^assets. Could complainants recover guando acciderent? How would such judgment appear upon the full record? Plea — total insolvency. Judgment — wholly unavailable.
    Will it be claimed that such judgment can be realized, by subjecting the debts due to Duval’s estate to its payment? Are wo the debtors of Duval? We never knew, and never heard of him in his lifetime.
    Are the heirs of Price his debtors ? They are, to the amount of $90.85 only, as appears by the record of the settlement, returned to the general court, held at the capítol in Richmond, on November 20, a. D. 1827, and ordered by said court to be recorded, unless that sum has been paid, or.is presumed, being a simple contract debt, to have been paid.
    To pay that sum there are abundance of assets, consisting of lands not aliened by the heirs of Price; and, when called upon by the administrator of Duval, I have no doubt the heii’s will pay that sum of money, or show it has already been paid.

      So far as Sullivant and Gilbert aro concerned, their survey can not be subjected to the payment of that sum till the lands, not aliened, are exhausted.
    If the obtaining of that sum is sufficient object to the complainants, they must first bring their action at law, obtain judgment, and then file their bill.
    It seems to me there is a groat gulf between complainants and my clients that can never be crossed.
    Although relying with confidence upon the grounds taken by Mr. Stanbery, in his argument on behalf of the heirs of Price, yet I further claim that, if the court should hold those grounds not tenable, the bill, as to Sullivant and Gilbert, must be dismissed. For that:
    1. The complainants are not the holders of the Duval title to survey, No. 6,154, owned by us.
    2. We are bona fide purchasers, without actual or constructive notice of complainants’ claims or titles to the other lands, or of any equitable interest that may have passed from Wm. D. Price, of his share in the lands; and complainants do not pretend to have acquired his interest in the whole lands *in common, but hold and claim distinct and separate parcels,- by metes and bounds.
    3. The estate of Duval being insolvent, it can never be placed in a condition to authorize the sale of the lands, to pay any debt due to him from the estate of Price.
    4. The conveyances from Duval to Carter, of survey, No. 6,154, owned by us, was without warranty; and Duval’s estate not being liable to refund the purchase money, and no action being maintainable, there is no circuity to prevent; and the proceeds of the sale of that survey having been once applied toward the discharge of the debts of Price, it can never be sold again for the same purpose.
    Wilcox, in reply :
    There is some little misconception of the facts in this case.
    The original bill was filed before the judgment in ejectment in the United States court. Ponding the bill, it was agreed by the parties that a joint judgment should be taken in the ejectment, saving all the equities, etc. This is alleged in the bill, and admitted in the answers. The object of all the parties was to settle all the rights of the parties, at the least possible expense. On filing the supplemental bill, other counsel came in, and something was said about multifariousness; but that was agreed to be waived, if it in fact existed, and Mr. Stanbery, at the close of his argument, recognizes this agreement as now in force.
    1. We still hope that the court can give us a good title. It is a case sui generis.

    2. It .seems to be conceded that we are entitled to onc-fi’th of the land, i. e., to William D. Price’s share. This is certainly beyond doubt. This gives us a right to partition, and so we claim in the bill; and there is no need of a specific prayer for partition. It may well come in under tho general prayer. A partition was one of the very objects for which the bill was filed. It was necessary to go into equity, in order to get the legal title of Wm. D. Price’s share, and then being *m equity, the court will go on and settle all the rights of the parties.
    This bill is not, as Mr. Stanbery supposes, to enjoin the judgment in ejectment. That can not bo done. But the bill is framed with a double aspect: 1. We ask fora conveyance of the legal title from all the heirs. 2. If that can not be had, then we ask for the legal title of William D. Price’s share, and that his'share may be set off to us on partition. The particular metes and bounds of each man’s land can, of course, be ascertained on reference to the master. Tho bill sets out that the complainants are in possession of' tho same lands they are sued for in the ejectment.
    Indeed, Mr. Stanbory’s argument seems to admit that we are entitled to a decree for Wm. D. Price’s share for partition, and for relief under tho occupying claimant law; at least I can give his argument no other interpretation, after striking out all he says in regard to multifariousness.
    Indeed, on general principles of equity, independent of the occupying claimant law, we suppose that one tenant in common, who makes permanent improvements on the land, is entitled to compensation on partition.
    3. Are the complainants entitled to any other relief than a legal title to tho one-fifth, partition, and compensation for improvements. ■
    And here seems to lie tho main objection on the other side. Wo do not, as counsel on the other side seem to suppose, claim any lien- whatever on these lands. Our claim is this :
    Price’s bstate is unsettled — his administrator has advanced $22,000 to pay debts — he has advanced this in cash out of his own pocket, in good faith; he did it under a mistaken view of his rights. He, therefore, can subject these lands to the payment of his debt. Price’s estate honestly owes him that amount of money; and the idea is preposterous that tho defendants shall keep the $22,000, and the land too.
    But Mr. Sianbery says wo are creditors at large. To this the conclusive answer is, that we are seeking to close up Price’s estate in equity, and therefore our claims need not be put in judgment. *The rule is settled in this court. A bill may be sustained, at tho instance of a creditor, before judgment, to compel the distribution of the estate of a decedent, because it is a trust. 6 Ohio 103; 8 Ohio, 217. In Henry v. Doctor, 9 Ohio, 49, chancery gave relief on the principles of the occupying claimant law.
    Nor do we ask for “twenty-seven distinct decrees.” We ask for but one decree, and that, too, to save an endless litigation that must ensue. All the necessary parties are before the court — if not, they can be brought before it; Price’s heirs are here; Price’s administrator is here; Duval’s administrator is here; and all the known creditors of Duval and Price are here. A reference to a master will bring before the court the exact amount due to each complainant, and if, on the coming in of his report, other parties should appear to be necessary, or even if the bill should in any respect be found defective, a remedy can then be applied.
    We ask that the rights of these twenty-eight men, innocent bona fide purchasers, may be settled in this suit; or, if a final decree can not, in all respects, be now made, wo hope the court will suffer no matters of mere form to prevent an expression of the court’s opinion as to what the real rights of the parties are. In conclusion,! maybe permitted to say that the counsel on both sides, from tho beginning, have tried faithfully to bring around a compromise, but unfortunately have not succeeded.
    Wo hope an opinion of this court, on the actual rights of the complainants, may accomplish what counsel have not been able to do.
    G. Swan, for complainants:
    The important principles involved in this case, it is hoped, will be a sufficient apology for adding a few remarks and authorities to the reply of Mr. Wilcox.
    The objections, as I understand, are, that this is not a bill for partition ; that the complainants have no right t'o overleap *the administration laws, and subject these lands to the payment of the creditors of Price, the elder; and, lastly, that the court will not grant relief under the occupying claimant law. There is still another point, that of multifariousness, which is abandoned under the agreement of counsel.
    The counsel have endeavored to frame the bill upon the facts, and authorities need not be citod to show that, under the prayer of general relief, we may have particular relief, so that it does not entirely differ from tho case. Hern v. Mill, 13 Ves. 119; 4 Mad. Ch. 216, however, settle tho practice to be that, if the bill contains charges putting facts in issue that are material, a plaintiff is entitled to tho relief which those facts will sustain under the general prayer.
    I suppose the agreement, if anything, extends to parties, and, under it, the complainants stand as if each was separately prosecuting his separate claim against the parties.
    One aspect of this bill is, to roach the land by taking the whole case into this court, because there is no adequate remedy at law; and in case the complainants, in the opinion of the court, are not entitled to this general and direct relief, then to ask for an order of partition and relief, under the occupying claimant law.
    In the case of Leiby v. Parks, 4 Ohio, 494, this court intimate that if the administrator of Ludlow had been made a party, the complainant would have been entitled to relief. The case itself, which is very loosely reported, has been, in terms, overruled by the late case of Ramsdall v. Craighill et al., 9 Ohio, 199. The court decide that whore an estate is in debt beyond the personal assets, they are a lien on the land, let it be cast upon or transferred to whomsoever it may, which could only be extinguished by their payment.
    Now, supposing the shares, except W. D. Price’s share, are wholly void, then Wm. Duval, who paid debts upon the faith of the proceedings in Virginia, to the amount of §22,056.76, is certainly without remedy anywhere, if not in a court of equity. He could not, at law, charge the older Price’s estate with the amount, because no one can be made debtor without *his consent. The result would he that the land would be discharged from tho debts, and tho whole loss would be sustained by Duval’s estate, although ho obviously acted in good faith, and under the orders and directions of the high court of chancery in Virginia. Than this, could there be a more unconscionable case of injustice on the part of Price’s heirs ? It would be absurd, indeed, in.such a case, to shorten the chancellor’s arm by technical, unyielding rules. In equity, Price’s estate is debtor to Duval’s estate in the amount advanced by Duval to discharge bona fide debts against the former, and, inasmuch as the lands in this state were subject to the claims of the original creditors, they are subject to the claims of Duval’s administrator, who is willing to compensate the purchaser under him whose titles may fail for the want of power.
    It can not, for a moment, be disputed that all creditors have a lien upon land for debts, whether alienated or not, upon a failure of personal assets.
    The case of Piatt v. St. Clair’s Heirs et al., 6 Ohio, 242, 243, is exactly in point. The court considered :
    1. That there were outstanding claims against the estate.
    2. That .the personal assets have been exhausted.
    3. That the estate descended upon the children and heirs at law, subject to the payment of the debts, and was still liable for the same, and a decree was accordingly entered. This case would be precisely in point if the original creditors wero complainants, and we trust that, under the circumstances, the purchasers will be in no worse situation. The court says: “ There will be little difficulty in ascertaining the .outstanding claims upon the estate, chargeable upon the realty, and so shaping our proceedings as to effect a complete adjustment, not only of the claim of the complainant, but of all others remaining unpaid.” "We conceive this ease virtually overrules that of Nowler et al. v. Coit, 1 Ohio, 522. The difference, however, between the latter case and the one at bar is this: in the case of Nowler v. Coit it does not appear that the money paid by the administrator was applied by him in discharge of the *debts of the intestate, nor that there was an insufficiency of personal assets. These are very important distinctions for the consideration of a court of equity.
    It is not pretended by the learned counsel for the defendants that Duval acted unfairly, or fraudulently, in making the salesr nor do the heirs of William Price resist the complainants’ claims upon the ground that his conduct was selfish, or, in any sense, improper.
    His estate, therefore, is in no worse .situation than if, finding a deficiency of personal assets, he bad advanced his own money to discharge the debts against his intestate. Well, he has paid the debts, .to the amount of more than $22,000, and has no assets, the estate being insolvent. He has received large amounts from the complainants without any consideration whatever, if the sales are deemed void. It is not pretended in the abstract that these amounts paid by the complainants, and those under whom they claim, to Duval, are legal debts against W. Price’s heirs. No such thing.. They are honest claims against Duval’s estate, which is insolvent; and Duval’s administrator has an equitable claim against Price’s estate, from which fund they ask to be paid. Is there any inflexible principle of equity which forbids, or will prevent, an arrangement to bring about an adjustment of this whole business ? We think not.
    In Norman v. Baldry, 6 Simon, 621; 9 Eng. Com. Law, 437, it is decided that when an executor pays simple contract debts, a bond being in existence, he shall bo allowed those payments. The principle is, that where an executor pays money innocently, though not according to strict law, he shall be allowed such payments.
    Haddix v. Haddix, 5 Litt. 203. The property of an intestate is holdon for payment of dobts, and when an administrator soils property, without authority, the heir is only interested that the full value is applied to the payment of debts of the intestate. It is only the residue of tho estate to which heirs, or distributees, are entitled, after the debts are p>aid; and where all is required for that purpose, there is nothing for them. *When the executor pays dobts with his own money he will bo entitled to the absoluto property in a chattel. Toller’s Law of Executors, 238.
    The doctrine laid down in Toller, is this: An executor who pays a debt of his testator, for any good reason, shall have a specific chattel in lieu of it. Yery equitable and very just. Now, as lands in this state are as much assets as chattels in England, the same rule ought to prevail bore with respect to them, as prevails there with respect to chattels; that is, tho administrator'ought to have a lion paramount to the hoir upon the real estate.
    In 2 J. J. Marshall, 122, and 3 lb. 161, the court say they soe no difference between personal assets and land improperly sold to pay dobts, and when debts are paid the pavor has a lien for the amount.

      A creditor may follow the land in the hands of the heir when there is no executor, or he is insolvent. 1 Des. 427.
    In Reddale v. Mandeville, 5 Cranch, 330, the court say, “that, as equity would make the legatees ultimately responsible for the debt, a court of equity will make them immediately responsible;” and so it was held.
    But heirs, holding land of their ancestor, take it subject to his debts, and a purchaser from them holds the incumbrance with the title, etc. Stiver v. Stiver, 8 Ohio, 221.
    It is one of the advantages of a recurrence to equity that its decrees may be modified according to circumstances.
    It is, however, insisted that here is no judgment, but “creditors at large.” The jurisdiction of a court of chancery, for the settlement of decedents’ estates, has been sustained at the instance of creditors before judgment, because it is a trust. Stiver v. Stiver, 8 Ohio, 220; 6 Ib. 112; 6 Johns. Ch. 631.
    There is a large class of cases where infants are bound.
    In 2 P. Vms. 243, the chancellor held that if a feme infant seized in fee, should, on marriage with consent of her guardian, covenant to convey, in consideration of a settlement, equity would execute the agreement.
    *And in 3 Atk. 615, the court said, that was going a great way, but there were eases in which the court would go to that extent.
    An infant who joins in a settlement with the consent of the family will be bound. 1 Ves. 28.
    A conveyance by an infant trustee is voidable, but if he would be bound to convey when of age, he would be restrained in equity from setting it asido. 17 Vos. 383.
    Equity will compel the performance of a contract by an infant made for his benefit. Roberts v. Wilson, 2 Bibb, 597.
    Tfie acts of a guardian, though done without authority, will bind an infant, if done for his benefit, and will be protected by the court. 1 Brown’s Ch. C. 106.
    Assuming that these deeds should be held void for want of a power, then it might be a matter of great doubt whether at law a recovery could be had for the lasting and valuable improvements. Swan’s Stat. 605, 606. Broad as are the provisions of the statute, it will be difficult to find that a deed under a foreign court of chancery, which had no jurisdiction, would authorize the grantor to recover for his improvements. If that is the case, or even doubtful, this court will grant relief.
    Where statute for betterments does not apply, they will be left for adjustment to the general principles of equity. Lewis’s Heirs v. Singleton’s Heirs, 2 Marsh. (Ky.) 214.
    But this question has been decided in Henry et al. v. Doctor et al., 9 Ohio, 61. The case was, in many respects, quite similar to the one now before the court. A sale under the proceedings in Virginia was held void and set aside; but, said the court, per Lane, C. J., “ a compensation should be made to the purchaser under the principles of our occupying claimant law.” A reference was accordingly made to á master to take an account of the value of the improvements.
    This case, however, has still further claims upon the court. It is a bill of peace to prevent a multiplicity of suits.
    The parties embraco nearly forty individuals, whose rights may all be adjusted in this suit. Twenty-seven separate actions *would be necessary, first, against Duval’s administrator; Duval’s administrator would be compelled to sue Price’s administrator, probably in chancery; a suit for partition for one fifth the portion of W. D. Price; a petition for the sale of the other four-fifths, etc. The litigation would, or might be, interminable, and a perfect waste of assets. One of the oldest cases, and a very strong one, upon this subject will be found in How v. Bromsgrove, 1 Vern. 22; Lowe v. Lowery, 4 Ohio, 78; Piatt v. St. Clair’s Heirs et al., 6 Ohio, 233; Evants v. Adm’r, etc., of Strode, 11 Ohio, 488. The court, in the last case, says : “ We have now all the parties before us, can settle all their rights, prevent further litigation, and do complete justice.” And the ground upon which the cause was retained for these enlarged purposes were “because,” otherwise, “ more extended and expensive litigation would be produced, and the remedy would not, therefore, be as complete and adequate.” Where there may be a remedy at law, yet, if doubtful or difficult, equity will hold jurisdiction. Weymouth v. Beyer, 1 Ves. 417.
    So a court will entertain jurisdiction when the remedy is more complete in equity than at law. Osborn v. United States Bank, 9 Wheat. 845. Chief Justice Marshall says, in that ease: “But it is the province of a court of equity, in such cases, to arrest the injury and prevent wrong. The remedy is more beneficial and complete than the law can give it.” It is scarcely worth while to multiply cases upon the subject. The rule to bo extracted from a careful examination of cases of this sort is, that-a court of equity will find moans to do justice between parties, when the remedy at law is more difficult, inefficient, inadequate, imperfect, or much more expensive than in equity. But lot us supposo that this caso is wholly without precedent; what then? Peculiar and extraordinary eases will-arise in the complicated affairs of civil society which can not be classed under distinct heads of chancery jurisdiction, but which must bo acknowiedged to come within the legitimate powers of the court. Such was the case of Oliver et al. v. Pray, 4 Ohio, 175; 2 Atk. 191, and cases cited in that case.
    *If there ever was a case to require the interference of a court of equity to prevent injustice the most enormous, it appears to me this is one, and we look for relief.
   Lane, C. J.

The plaintiffs aro purchasers, separately, of certain lands, being surveys in the Virginia military district, formerly bolonging to William Price, late of Richmond in Virginia, now deceased. The heirs of Price have lately recovered a judgment in ejectment against the plaintiffs, and because a recovery has been had in a single judgment against them, the plaintiffs bring this bill to set up any equities which properly belong to them.

Price died in Virginia many years since, leaving an embarrassed estate; Duval was bis administrator. In 1821, his creditors filed a bill in Virginia, against the administrator, widow, and heirs, to enforce payment of their debts, and among other things, to sell the Ohio lands. An agreement was entered into, and filed in this case, by which Lucy Price, widow, and Robert Douthal and Wm. D. Price, guardians of the four minor heirs, consented to the sale by decree, and requested that Duval and Call, or either, in-tho event of the other’s disability, might be the commissioners to make the sale. A decree was then taken, in conformity with this arrangement.

At that term, a decree was entered upon the basis of this agreement, authorizing a sale of the Ohio lands. Duval and W. D. Price, one of the adult heirs, were commissioners to sell, and an indebtedness was found, in favor of Duval, of more than $22,000. The sale of 15,000 acres was made to Duval, and approved by the court, and the present twenty-seven plaintiffs hold their titles under this sale.

The bill is framed to meet the various equities which the plaintiffs may be able to establish.

The plaintiffs’ first ground for relief is, that, admitting tho sale conveys no legal title, yet by paying money to Duval, which has gone to extinguish debts of the estate of Price, and holding Duval’s warranty of lands, whose title has failed, Duval himself having died insolvent, they are entitled to bo substituted *for him, in his claim for advances to the estate of Price, and are to be quieted in the possession of the land acquired under these circumstances, or at least to hold the lien of Duval’s advances, as a charge on these lands.

It does not, however, appear to us that either ground is tenable. As tho estate of Price is yet unsettled, the administrator of Duval perhaps may have a claim against it for the repayment of his decedent’s advances, and the plaintiffs may recover on their warranties, from the estate of Duval. But no privity exists between tho creditors of Duval, and the estate of Price, which will justify them in reaching his assets, except as general creditors of Duval, pursuing his credits.

Neither does the advance of money by a stranger, upon a defective sale of a decedent’s lands, create an equity againt his estate, although the money goes to pay his debts. It has been held by this court that the rule of caveat emptor operates on the purchaser at judicial sales, and cuts off all right to indemnity, except such as may arise from express warranty. Vattier v. Lytle’s Ex’rs, 6 Ohio, 477; Ludlow v. Leiby, 4 Ohio, 469; McArthur v. Porter, 1 Ohio, 99.

But the plaintiff has established a plain right to one-fifth of the lands, being the share conveyed by Wm. D. Price. He was one of the commissioners appointed to make the sale, one who, as guardian for a part of the children, assented to it, and one who undertook to carry it into execution. These acts bind him, and pass the title he possessed, and tho plaintiffs may obtain partition under this bill.

So, too, the benefit of the principle of the occupant laws may be claimed here, and may be had under those proceedings.

But we are unable to discover any right to further relief. The sale of Ohio lands by a Yirginia court is void for want of power. Money passing from vendor to purchaser, on a defective sale, can not bo traced beyond him who receives it. And if a creditor’s bill to settle an estate, drew to the jurisdiction of the court where it was pending the settlement of all the estates of decedents who were debtors to the first, it would soon render such suits impracticable.

*It will be observed that all objections to the bill are removed by the agreement of the parties to admit any relief that could have been obtained by separate proceedings.

The plaintiffs may take a decree :

1. Declaring their title to ono undivided fifth.

2. For partition.

3. For taking the steps necessary to obtain compensation for their improvements, in analogy with the law relating to occupants. Decree accordingly.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Thomas Spencer v. The State of Ohio.
    In an indictment for burglary with intent to steal goods and chattels, it is not necessary to aver what specific goods were intended to be stolen.
    The term “goods and chattels” imports value, and it is not necessary, under the statute, to aver any certain value.
    On trial, proof of their value is not necessary.
    In an indictment for burglary, a description of the premises, as “the warehouse of W. M., at Scioto county,” is sufficient.
    This is a writ of error, to the common pleas of Scioto county, made returnable to the Supreme Court in bank.
    The plaintiff in error was indicted, tried, and convicted, at the October term of said court of common pleas, 1844, fir burglary, and sentenced to imprisonment in the penitentiary. The indictment contains two counts. On the second, however, the plaintiff was acquitted ; and the first, therefore, is only called in question. In this count, it is averred, “ that Thomas Spencer, late of the county of Scioto aforesaid, on July 1, A. D. 1844, about the hour of one o’clock, in the night season of the same day, with force and arms, at the ^county of Scioto aforesaid, the warehouse of one William Maddox, there situate, willfully, maliciously, forcibly, and burglariously, did break and enter, .with intent, the goods and chattels of Samuel Shipman, in the said warehouse, then and there being found, then and there willfully, maliciously, forcibly, and burglariously to steal, take, and carry away, contrary to the statute in such case made and provided, and against the peace and dignity of the State of Ohio.”
    This count, in the indictment, is fram ed upon section 14 of the act for the punishment of crimes and misdemeanors, which provides, “that, if any person-shall, in the night season, willfully, maliciously, and forcibly, break and enter into any dwelling-house, kitchen, smoke-house, shop, office, store-house, warehouse,” etc., “with intent to kill, rob, commit a rape, or with intent to steal property of any value,” etc., “every person so offending shall be deemed guilty of burglary, and, upon conviction thereof, shall be imprisoned in the penitentiary, and kept at hard labor, for not more than ten, nor less than three years.” Swan’s Stat. 232.
    After conviction, the counsel for the prisonor moved in arrest of judgment: 1. Because the count in question was uncertain, in this, that it did not specify the goods and chattels the prisoner intended to steal. 2. That the goods and chattels were not laid to be of any value. 3. That there was no local description of the premises.
    The overruling of this motion by the court of common pleas is assigned for error.
    The following bill of exceptions was also taken upon the trial:
    “ Thomas Spencer ads. The State of Ohio. Indictment for burglary, etc., in Scioto common pleas. Be it remembered, that, on the trial of this cause in the court of common pleas of Scioto county, in the State of Ohio, at the September term thereof, to wit, on October 1, 1844, the evidence having been submitted to the jury, and the arguments of counsel heard, and the prosecuting attorney on behalf of the state having adduced no proof that the *goods and chattels mentioned in said indictment were of any value, the defendant, by his counsel, requested the court to charge the jury that ‘ if the prosecution had failed to adduce any testimony as to the value of the property mentioned in the said indictment, the jury, in the absence of such evidence, could not find a verdict of guilty on either count,’ which instruction the court refused to give, but charged the jury that, no value being-laid in the first count, the prosecuting attorney was not required to introduce any testimony as to value under that count, and that, if they found the defendant guilty under the second count, it was incumbent upon the jury to find the value of the proporiy from evidence. To all which decisions of the court, in refusing to charge as requested, and in charging as above named, the defendant, by his counsel, excepted.”
    This charge is assigned for error.
    LeGrand Byington, for plaintiff in error:
    ' Two principal questions are raised upon this record, in both of which it is claimed the court of common pleas erred. I will consider them in the order in which they occurred at the trial. From the bill of exceptions, it appears that the prosecution in the court below adduced no evidence, upon the trial, that the goods and chattels which the defendant intended to steal were of any value whatever, and that the prisoner’s counsel asked the court to charge the jury that, in the absence of such testimony, they could not find a verdict of guilty upon either count; which instruction the court below refused to give. The statute defining burglary, enacts that if any person shall break and enter, etc., “with intent to steal proporty of any value,” etc. Swan’s Stat. 232, sec. 14. This statutory definition of the crime is necessary to bo set out, and proved as alleged, and if the state failed to prove that the property had some value, it failed to substantiate a material ingredient of the crime for which the prisoner was arraigned and upon his trial. Ifj, as a matter of fact, the goods and chattels wore of no value, then there was no crime, and the jury *were not bound to presume what the prosecution had not proved. Every necessary fact which goes to make up the crime, must be alleged and proved. The court of common pleas erred, therefore, in refusing to charge as requested, and the defendant was convicted when there was no evidence before the jury in relation to a material ingredient of the erimo.
    The next question raised, is upon the refusal of the court below to arrest the judgment upon the verdict. In making up this record, the clerk has neglected to incorporate the written reasons urued and filed for an arrest ’of the judgment, and we must, therefore, refer directly to the indictment for the exhibition of its insufficiency to support the judgment which was pronounced upon it. The second count was conceded, upon the trial, to be bad, but as the finding of the jury was upon the first count, it is only necessary to direct the attention of the court to that count upon which the verdict was found, and the judgment was pronounced.
    It is claimed that the first count in the indictment is bad, for various reasons:
    1. For uncertainty, in not specifying the goods and chattels which, it is alleged, the prisoner intended to steal. 7 Ohio, 204, pt. 1; Arch. Crim. L. 16-18, 22, 24.
    2. Because no value whatever is laid for the goods and chattels. 1 Mass. 245; Arch. Crim. L. 23.
    , 3. Because there is no local description of the premises. Seethe forms of indictments in Arch. Crim. L., and Chit. Crim. L.
    S. M. Tracy, for the state:
    In the statutory definition of the crime of burglary, with intent to steal property of any value, are the words “ of any value” operative words in the definition of this crime? The defendant in error insists that these words are inoperative. The legal effect of the language used in the statute is precisely the same as if the words had been “ with intent to-steal,” or, *“ with intent to steal property.” And the words “ with intent to steal” imply, ex vi termini, an intent to steal goods and chattels of value, with as great certainty as if alleged in those words. .
    I suggest that, prior to the reprint of the statutes of Ohio, in 1824, the language of the definition of this crime was “ with intent to steal;” and the form of the indictment was taken from the precedents in 3 Chit. Crim. L. 1101. In the reprint, perhaps, of 1824, the wording of the statute was varied to that now used in-the existing statute, and the forms of indictment have continued-to be taken from 3 Chit. Crim. L. and Davis’ Pr. 91. And assuredly if in our law, prior to 1824, the words “with intent to-steal” did imply goods and chattels of value, intrinsic value, as-distinguished from choses in action, and animals, fe.rce naturae, the-argument is conclusive that the change of words which the-statute has undergone has produced no change in substance or legal effect.
    The instructions asked of the court were relative to the evidence-of intent. Arch. Crim. PI. 170, gives the rules by which this-intent is made out in burglary. And the instructions of the-■court are fully sustained by the principle that the allegation indicates the proof.
   Wood, J.

If it be necessary to specify with certainty the particular goods and chattels which the burglar designs to steal, when the felonious breaking and entry is made with such guilty intention, but he is arrested in his progress before a larceny is actually committed, it appears to us the main object of this statute would be, in a great measure, defeated. Every material averment in an indictment must be proved. The law would not presume an intention to select one article in preference to another. Tho lone thief, who enters the well-filled storehouse or jeweler’s shop, can not reasonably be supposed to enter with the design to abstract the whole that either contains. It would be beyond the ordinary power of man to consummate or his skill to conceal; and it would be *only in case of voluntary confession, in which tho thief should announce the chattels he intended to take, that a conviction could be had, if larceny was not consummated, when the statute makes the breaking and entering, with the intention, tho crime. Upon what principle would it be presumed, if goods and chattels were specified, that they were tho ones intended to be taken, in preference to others? And how could this material fact, thus averred, be proved? Yery few, it is perfectly clear, would be the cases in which it could be done, though the general intent to steal might be perfectly manifest, from the time, manner, and other surrounding circumstances of the entry. We are, therefore, of opinion it is not necessary to the sufficiency of an indictment, under this statute, that it should describe any specific goods and chattels intended to be stolen.

Is it necessary that the indictment should aver the goods and chattels were of any value ? This is a question of more difficulty perhaps to determine, but we incline to the opinion the indictment for this offense is good without it. Though it is safer, as a general rule, to use the identical words of the statute which are descriptive of the offense, it is by no means necessary, provided others of similar import are employed. In the case at bar, the indictment avers the intent to steal the goods and chattels oí Ship-man ; but the statute punishes the intent to steal the property of any value of another, and no objection is taken to the indictment -on this account, and for the reason that goods and chattels are property. They are words, as employed, of the same meaning and import, and fully describe the crime. Nor is it necessary to aver the property was of any value, in the same words in the statute. If it appears, to a certain intent, from the language used, nothing ■more is required by the strictest rules in criminal pleading. It will be seen it is not the amount in value that constitutes an ingredient of the crime. It is of no importance whether it be large ■or small. If any value is attached to the thing intended to be stolen, the crime is complete. If the'tcrjn “property” was used, there would be perhaps more doubt; for a *man may have a bare property in dogs or animals, which are, by the rules of the common law, of no intrinsic value, and, though trespass will lie for taking them, they are, it is said, not the subject of larceny. But goods and chattels, ex vi termini, import value. It appears as manifestly, therefore, from this indictment, that the intent was to steal property of value as if the goods and chattels were laid to be of value in so many words; for nominal value is, in fact, understood as necessary to constitute goods and chattels.

The third objection is, that the warehouse is not properly described. Is it so? A good criminal pleader will never attempt more certainty than the law requires, for fear that, in the minuteness of detail, he may, by chance, misdescribe in some essential particular, which would be a fatal error. The warehouse is averred to be within the jurisdiction of the court, to wit, “at the county of Scioto,” and to be the warehouse of one William Maddox, and, we think, it was not necessary to specify the township, hamlet, or village, within which it was located, any more than the road or water-course by which it stood. The laws of this state appear to us to throw sufficient protection around the accused to guard vigilantly all his rights, and secure him a fair and impartial trial; and when this is done, the court ought not, by an unwise astuteness, in the' application of overstrained principles, and hair splitting technical objections, to cheat the law of its victim, and thereby give encouragement to villainy and crime.

A bill of exceptions was taken, during the trial, to the charge of the court. From this it appears that the evidence of the state being closed, the counsel for the plaintiff in error, among other things, asked the court to charge the jury that, as no evidence had been given, on the part of the state, to prove the goods and chattels laid in the indictment were of any value, tho plaintiff in error could not be convicted. This charge the court refused, but. did charge the jury that, as no value was laid in the first count, it was unnecessary for the state to prove any value, and that the-plaintiff in error might be convicted without such proof.

*This opinion of the court is also assigned for error. Ween lertain no doubt, however, the charge was correct, and for the same reasons, substantially, which wc have given for our opinion, that tho court of common pleas did not err in overruling the-motion in arrest of judgment, for the second cause assigned that, goods and chattels, from the natural signification of the words, import value, nominal, at least, and no proof was therefore required.

In larceny the rule is different. Yaluo must be laid, and value proved, that the jury may find it, and the court, by that means, know whether it is grand or petit, and apply tho grade of punishment the statute awards. It is not so in the case at bar. The judgment of the common pleas is affirmed, with costs. Judgment affirmed.