text:
    Rhodes v. Gunn.
    1. Where a petition is filed under section 558 of the code (S. & 0. 1121) to recover real property, and the answer denies the title alleged in the petition, other defenses in the answer setting up title in the defendant are not material, as the questions thus sought to be presented properly arise on the trial, under the general denial of title in the plaintiff. Kyser v. Gannon, 29 Ohio St. 359, approved.
    2. A decree in a suit under the chancery act of 1831, enforcing the claim of a locator in the Virginia Military District, and setting off to the complainant a portion of the land located in satisfaction of the claim, is not void for want of jurisdiction of the subject-matter.
    3. Where in such suit the appearance of unknown heii-s is to be effected under section 10 of the act, the finding of the court, that they had been notified by the publieatioix of notice in a newspaper named, for a period specified, is, in effect, equivalent to a notice given in pursuance of the previous direction of the court; at least it ought to be so regarded when questioned in a collateral proceeding.
    4. A tax deed executed under the act of March 23, 1840 (1 Ourwen, 630), is not, without other evidence than the deed itself, prima facie evidence of the validity of the tax sale; nor will the destruction of the records in the office of the county auditor relating to such sale warrant the presumption of its validity.

      Error to the District Court of Hardin county.

      Jeremiah Hall, for plaintiff in error.

      William Lawrence, for defendant in error :
    I. Even if the statute of limitations can not run against plaintiffs until the patent issued in 1861, yet it is a complete defense to their claim that the defendant acquired the-equitable title which they held by entry and survey, either by (1) the partition proceeding, (2) delinquent tax sale, (3) forfeited tax sale, or (4) presumption of a grant. Civil Code,. § 93-559; Niswanger v. Gwynne, 20 Ohio, 556; Jones v. Devore, 8 Ohio St. 431; Lessee of McMillin v. Robins, 5 Ohio, 32; Crary v. Goodman, 12 N. Y. 266; Wintermute v. Montgomery, 11 Ohio St. 442 ; Simeon v. Schurck, 29 N. Y. 598; Matthews v. Rector, 24 Ohio St. 445 ; Burnley v. Stevenson, 24 Ohio St. 479 ; Bliss’ Code Pleading, § 349-351; Pomeroy’s Remedial Rights, § 87 ; Magruder v. Esmay, 35 Ohio St. 221; Maxwell v. Campbell, 45 Ind. 360 ; Dobson v. Pearce, 12 N. Y. 156.
    II. After twenty years’ possession — especially if the records are lost — the law on grounds of public policy presumes judicial and tax sale proceedings regular.
    The defendant acquired title by the delinquent tax sale of January, 1851, and his possession from early in February, 1851, ever since.
    i. If it be said the defendant must show that the official acts which authorized it were all performed substantially in accordance with law, I reply this may be shown:
    (1.) By the proper records when they are in existence.
    (2.) If lost, by secondary evidence. 1 Greenl. Ev., §§ 1, 2, 82, 84.
    (3.) After the lapse of twenty-one years from the day of sale, or even less, by presumption of the regularity of official proceedings. This is evidence which the law supplies —is equivalent to the primary evidence — which dispenses with the primary evidence, and does not even require a resort to secondary evidence, and after twenty years does not even require the production of primary evidence to sustain it.

      a. Elementary authorities : Blackwell Tax Titles (4 ed.), 533 ; 7 [Cincinnati] American Law Record, 418 ; 9 Opinions Att’ys Gen’l, 204.

      b. Judicial authorities : 7 [Cincinnati] American Law Record, 425; Coleman v. Anderson, 10 Mass. 105; Gray v. Gardner, 3 Mass. 399; Bergen v. Bennett, 1 Caines Cases, 18; Read v. Goodyear, 17 Serg. & Rawle, 350; Freeman v. Thayer, 33 Maine, 76; Knox v. Jenks, 7 Mass. 492; Blossom v. Cannon, 14 Mass. 178; Pittsfield v. Burnstead, 40 N. H. 494; Farrar v. Eastman, 5 Greenl. (Me.) 345; Keane v. Cannovan, 21 Cal. 300; Calvert v. Fitzgerald, Littell Sel. Cas. 392; Fitzpatrick’s Heirs v. Forsythe, 7 [Cincinnati] American Law Record, Jan. No., 1879; Ward’s Lessee v. Barrows, 2 Ohio St. 241-246; Coombs’ Lessee v. Lane, 4 Ohio St. 112-148 ; Winders’ Lessee v. Starling, 7 Ohio (pt. 2), 190 ; Bank U. S. v. Dandridge, 12 Wheat. 70; Lessee of Ludlow v. McBride, 3 Ohio, 254, 255 ; Armstrong v. McCoy, 8 Ohio, 135 ; Brown v. Connelly, 5 Blackford, 391; Wallace v. Seymour, 7 Ohio (pt. 1), 256; Ridley v. Hetman, 10 Ohio, 524.
    It is to be observed these authorities are independent of, and not in analogy to the statute of limitations. The presumption of regularity, therefore, is conclusive after twenty years, and has no saving in favor of persons under disability. The presumption rests on five maxims (cited 7 American Law Record, 423), and on the necessity of giving effect to judicial and tax sales. The principle is the same in both -cases. The statute of March 22,1849, and other limitation :acts, establish the policy equally as to both. 2 Curwen, 1494, § 2.
    III. The forfeited tax sale to Ralph E. Runkle, December 12, 1831, for taxes of 1823 to 1831 inclusive, with possession in him, is a title which defeats plaintiffs.
    It; defeats plaintiff's whether it be regarded (1) as an out.standing valid title in a third person (Perkins v. Dibble, 10 Ohio, 433; Fowler v. Whiteman, 2 Ohio St. 270); or (2) as having become vested in defendant as a purchaser of Runkle’s title. ,
    1. It is a valid title. The third answer alleges the forfeited sale and the auditor’s deed made under it. This is-not denied by any reply.
    2. The statute makes this deed prima facie evidence of title in Runkle, and it is not defeated. Turney v. Yeoman, 14 Ohio, 207; Stanberry v. Sillon, 13 Ohio St. 571; Skinner v. Brown, 17 Ohio St. 35.
    3. It makes no difference that Gunn is not connected with it. McCoy v. Dickinson, 5 Serg. & R. 254; Angel Lim., § 414.
    After more than forty years it must be presumed by force of the authorities hereinbefore and hereinafter cited. Also-upon the principle “ that shall be considered as done which ought to have been done.” Blake v. Davis, 20 Ohio, 241. And in support of the judgment it must be presumed that the jury properly found from the evidence given, the existence of the deed.
    IY. After twenty-one years possession by the defendant, inasmuch as in its inception it was not protected by the statute of limitations, the law presumes a grant from Beazley of his equitable title held by entry and survey to Gunn, the adverse occupant.
    1. 1. As to possession. The sixth answer averred it, and the demurrer to it admitted it.
    2. It must be presumed that the jury found correctly on the evidence, unless clearly shown otherwise.

      a. The evidence shown in the record is sufficient to prove-the possession. The defendant then had more than twenty-one years’ possession from the date of tax sale.
    ii. This raises the presumption of a grant to defendant from plaintiffs or their ancestor.
    1. Elementary books : Cited in 7 American Law Record, 414-429 ; 22 American Law Register (Eeb., 1874), 66 OS. [Yol. 13, N. S.].
    2. Legal maxims: Cited 7 American Law Record, 423.
    3. Judicial authorities : Courcier v. Graham, 1 Ohio, 330;
      Lessee of Blake v. Davis, 20 Ohio, 241; Lessee of McArthur v. Gallagher, 8 Ohio, 518; Rex v. Joliffe, 2 B. & C., cited 1 Phil. Ev. 442, and 7 American Law Record, 431; Chambers v. Mifflin, 1 Penn. 29 (Rawle, Penrose, and Watts) ; Jarboe v. McAtee, 7 B. Mon. 279 ; Ricard v. Williams, 7 Wheat. 59; Fitzpatrick’s Heirs v. Forsythe, 7 American Law Record [Jan., a. d. 1879], p. 430; Lessee of Ludlow v. McBride, 3 Ohio, 254, 255.
    Lapse of time is “ evidence” of a grant. McCoy v. Grandy, 3 Ohio St. 464; 1 Story Eq., § 87.
    4. The presumption is imperative. 22 American Law Register (O. S., Feb., 1874), p. 72; 7 American [Cincinnati] Law Record, 433 ; Washburn Easements [70], [105],, 114; 1 Greenl. Ev. § 17 ; Starke v. Smith, 5 Ohio, 455 (seeCurwen’s ed.); Strickler v. Todd, 10 Serg. & Rawle, 69 ; Rust v. Lou, 6 Mass. 90; Mayor v. Horner, Cowper, 102; Oswald v. Leigh, 1 Term R. 270 ; Barker v. Foote, 19 Wend. 309 ; Coolidge v. Leonard, 8 Pick. 504; Tracey v. Atherton, 36 Vermont, 503; Jackson v. McCall, 10 Johnson, 377; Eldridge v. Knott, Cowp. 214; Bealey v. Shaw, 6 East. 208—219; Tyler v. Wilkinson, 4 Mason, 397, 402; Sherwood v. Burr, 4 Day, 244; Ridley v. Hettman, 10 Ohio, 524.

      James Kernan and John Stillings, also for defendant in error.
   White, J.

The original action was instituted in the Court of Common Pleas of Hardin county, to recover one hundred acres of land, being survey number 12,097 in the Yirginia Military Bistrict. The petition was filed under section 558 of the code of civil procedure. S. & C. 3119.

The answer in the first defense denied the title, of the plaintiffs. The answer also set up the statute of limitations and several other defenses, which need not be specially noticed as the questions thus sought to be presented, all properly arose on the triaPunder the general denial of title in the plaintiffs. Kyser v. Cannon, 29 Ohio St. 359 ; Winter mute v. Montgomery, 11 Id. 444 ; Treon’s Lessee v. Emerick, 6 Ohio, 392.

Ou the trial, the defendant introduced in evidence the record of a suit in chancery, had in the Court of Common Ideas of Hardin county, in which there was set off and decreed to the present defendant, by metes and bounds, one-third of the land in controversy. The bill, in that case, was filed on the 1st day of March, 1853, by the present •defendant, against Cadwallader Wallace and others. The bill set out that the complainant (the present defendant) had acquired, by purchase and assignment, all the right, title, interest, and claim of Wallace for locating and entering the land in controversy; and that such location, entry, .and survey had been made by said Wallace for and on behalf of Cornelius Beazley, to whom the warrant located on .said land was issued.

It was alleged in the bill that the complainant did “ not know the place of residence of the said Cornelius Beazley, if living, or, if dead, the names or places of residence of his legal representatives or heirs; but that one Jacob Rhodes, of Pike county, Missouri, claims some interest therein.”

The prayer of the bill was “ that the said Cadwallader Wallace, Jacob Rhodes, the said Cornelius Beazley, if living, but, if dead, that his heirs and legal representatives may be made defendants to this bill, and that the said defendants may be required to answer all and singular the matters and things herein set forth, and that an order of publication of notice may be made for that purpose, and that, on final hearing of this case, the court may set off' to your petitioner one-third of said land, by metes and bounds, or such other proportion as they may consider equitable and just in the premises, and decree conveyance thereof to your petitioner, and that they may grant such other and further relief as is equitable and just in the premises.”

An affidavit of the complainant was annexed to the bill, in which he stated that he did “ not know the names or place of residence of the heirs of Cornelius Beazley, de■ceased, as set forth in the above bill, unless the said Rhodes he one of them.”

It appears from the record that notice of the pendency of the petition, containing a summary statement of the ■object and prayer thereof, was published six consecutive weeks in the “ Nor.-Wester,” a newspaper printed in the county.

At the June term, 1853, the court found that such notice had been published for six consecutive weeks next preceding the term.

At the October term, 1853, a decree was rendered for the ■complainant, and a partition was ordered as prayed for in the bill.

The commissioners appointed to make partition having made a report setting off to the complainant one-third of the land by metes and bounds, the court, at the March ■term, 1854, confirmed the report, and decreed that the defendants should convey to the complainant, by deed in fee ■simple, the lands set off to him by the commissioners, and provided, in the decree, that, in default of the execution of ¡such deeds by the defendants, the decree should operate as such conveyance.

This decree is alleged to be void on two grounds — (1) that the court had no jurisdiction of the subject-matter ¡stated in the bill ; nor (2) of the persons of the defendants. Neither of these positions, in our opinion, is tenable.

The plaintiffs claim as the heirs of Cornelius Beazley, who was a resident of the State of Missouri at the time of 'his death, which occurred prior to the filing of the bill. The bill was founded on the claim of Wallace, as locator of the laud ; and such a claim, in the "Virginia Military District, is understood to signify the compensation of the portion of the land located, agreed to be given by the owner of the warrant to the locator of it for his services. Hollingsworth v. Barbour, 4 Pet. 473. The fact that the patent was not issued until after the rendition of the decree is of no materiality. Beazley and his heirs held the equitable title to the land, subject to the claim of the locator; aud, on the emanation of the patent, it inured to the benefit of thecomplainaut as to the portion of the land allotted to him under the decree. Matthews v. Rector, 24 Ohio St. 439.

As to the jurisdiction of the persons of the defendants. The chancery act of 1831 (3 Chase, 1696), section 10, provides that, “in cases where it shall be necessary to make the heirs of any decedent defendants, and the names of all, or any part of them, are unknown, and the complainant annexes to his petition an affidavit of his want of knowledge of the names or residence of such heirs, proceedings may be had against them, without naming them, and the court shall make such order in relation to notice as they may deem proper.” The act of March 12, 1845, extends the same provision to devisees. 2 Curwen, 1181.

The prayer of the bill asked that an order might be made for the publication of notice to the defendants; but the record does not show the making of such order, except as it may be implied from the finding that the notice had been given by publication as before stated. It appears,, however, from this finding, that the court was satisfied with the mode in which notice had been given and adopted it. This was, in effect, equivalent to a notice given in pursuance of the previous direction of the court; at least, it ought to be so regarded when questioned in a collateral proceeding.

The defendant also set up title to the entire tract under a tax sale made under the act of March 23, 1840. 1 Cur-wen, 630.

In support of this claim, he introduced in evidence the-deed of the auditor of the county, without any other evidence that the provisions of the statute authorizing the sale had been complied with. In lieu of such evidence, it was proved that the records in the office of the county auditor, relating to the sale, had been destroyed by fire. The deed was dated December 15, 1853, and recited a sale of the land for taxes on the second Monday of January, 1851.

As to the effect of the deed, the court instructed the jury, in substance, that if they found, from the evidence, that the records in the office of the auditor had been destroyed, without fault of the defendant, then they might presume-that the requirements of the statute, in making the sale, had been followed.

In this instruction, and in thus allowing the deed to be given in evidence, the court erred.

That a tax deed executed under the act in question is.' not, of itself, prima facie evidence of the validity of the sale, was decided in Jones v. Devore, 8 Ohio St. 430.

By section 27 of the act under which the sale was made, the auditor, after recording the delinquent list, is required to transmit it to the auditor of state. And, by section 34, the county auditor is required to make out and certify a copy of the record of sales and forward the same to the auditor of state.

• The first section of the. amendatory act of February 24, 1844 (2 Curwen, 1020), provided for the publication of the-delinquent list in a newspaper, for a specified time before the sale, and prescribed the notice that was to be attached to and published with the list.

No evidence was given to show a compliance with these provisions of the statute. The destruction of the records-in the office of the county auditor did not destroy the evidence to be found in the office of the auditor of state, and in the newspaper in which the delinquent list and notice-were published, if such publication was made. Nor was it shown that such evidence was not attainable.

The ruling of the court is sought to be sustained on the maxim, omnia presumuntur rite esse acta. This maxim is not of universal application; but it is not our intention now to enter into an examination of the cases in which it properly applies. It may be remarked, however, that it is-not to be extended so as to make it cover substantive, independent facts as distinguished from facts which are mere incidents of others duly established. 2 'Wharton’s Ev., § 1318; United States v. Ross, 92 U. S. (2 Otto) 282, 284, 285 ; Blackwell on Tax Titles, *72. See also Best on Presumptions, chap. 2, § 61.

Judgment reversed and cause remanded.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Stifel v. Metz.
    Motion to strike cause No. 122 on the general docket from the files, on the ground tbat the record, etc., have not been printed.

      Jacob Wolf, for the motion.

      Forrest § Mayer, contra.
   By the Court.

The petition was filed in 1877, and, consequently, is governed as to printing by rule 5. The act -of 1878, which took effect September 1, 1878 (75 Ohio L. -804, § 5, incorporated in the Rev. Stat., § 6711), has no application, as to the matter of printing, to cases pending in this court previous to September 1, 1878.

Motion overruled.


author:
Johnson, J.
      McIlvaine, C.J., and White, J.,

text:
    Fratz v. Mueller.
    1. The board of equalization, added to a sworn return of personal property for taxation, which included the monthly average value of goods and" merchandise' during the preceding year, an additional valuation to such monthly average, and entered upon its journal a statement, as the reason for such increase, that in view of the facts, the return was insufficient and below the actual value of the property: Held, That this was a sufficient compliance with the statute which requires a statement of the facts to be entered upon the journal of the board.
    2. The statute empowers boards of equalization to add to or deduct from> the valuation of personal property returned for taxation, upon such evidence as shall be satisfactory to the board, but this addition or deduction should be made upon satisfactory evidence or knowledge of the facts, and not arbitrarily, without any evidence or knowledge of the facts to support the same.

      Error to the District Court of Hamilton county.
    Mueller was plaintiff' in the original action.
    He sought to enjoin the collection of $28.54, being the taxes assessed on $1,000, added to his return of personal property for the year 1878 by the board of equalization of the city of Cincinnati.
    The court of common pleas sustained a demurrer to the petition, for the reason that it did not state facts sufficient to entitle the plaintiff to the relief asked.
    The district court, on error, reversed this judgment, overruled the demurrer, and remanded the case to the common pleas for further proceedings.
    To reverse this judgment is the object of this proceeding.
    The petition states that in April, 1878, Mueller made •out, upon a blank furnished him for that purpose by the assessor, a statement of all his personal property held by him, subject to taxation, amounting in value to $11,350, which was sworn to and delivered to the assessor.
    This return was upon a printed form prescribed by the .auditor of state in general use.
    In June, 1878, the board of equalization of the city of Cincinnati summoned him before it, and he was examined in reference to the truth of said return, and asserted that it was in all respects true and correct, and offered to exhibit his books and property to the inspection of the board, as evidence of its correctness; but the board, with no other ■evidence offered, and without any other or further testimony, added $1,000 to the amount by him returned, without a statement on its journal of the facts on which said addition was founded.
    The statement of facts entered on the journal of the board, as its reasons for such addition, is as follows :
    “ On motion, the amount set opposite the names of the following persons was added to their personal returns, for the reason that the amount returned by the parties respectively was, in view of the facts, considered insufficient and below tbe actual value of the property owned or held by the parties:
    “ "Ward 19, John M. Mueller, 425 W. Front street. Item 10, $1,000.”
    This statement was followed by a list of names of others, whose returns were increased, besides that of Mueller.
    Item 10 in said return was as follows :
    “ 10. Monthly average value of all goods and merchandise owned or held by me during the year, or part thereof, ending the day preceding the second Monday of April, 1878.”
    It is alleged that said return was sworn to, and was in all respects correct, and that the addition of $1,000 so made was unsupported by any evidence, and was unjust, without authority of law, and illegal.

      Charles W Baker, for plaintiff in error, contended :
    (1.) That a court reviewing the action of the board of equalization has no power to pass upon or question the sufficiency of the evidence presented to the board, and acted upon by it, unless there be allegation of fraud or conduct that amounted to fraud, upon the part of the board.
    The statute makes the board the exclusive judge of the sufficiency of the evidence upon which its acts. Boards of equalization are presumed to have acted upon sufficient evidence when they add to the valuation returned by the assessor. Hambleton v. Dempsey, 20 Ohio, 168; Wood v. Barrows, 2 Ohio St. 241 ; Skinner v. Brown, 17 Ohio St. 33, 37.
    (2.) That the journal of this board of equalization contains a sufficient statement of facts to make a compliance with the statute.

      L. S. Cotton, for defendant in error:
    I. The board had no jurisdiction. It heard no evidence. It had no authority to act, except on evidence. Phillips v. City of Stevens’ Point, 25 Wis. 596; People v. Reynolds, 28 Cal. 111.
    “ The board in this matter of equalization is of special and . limited jurisdiction, and nothing in that regard is to be presumed in its favor.” State of Nevada v. Board of Co. Com., 5 Nev. 319; Potter v. Greene, 13 Cal. 329, 330 ; Sioux City, etc., R. R. Co. v. Washington Co., 3 Neb. 42; Ferris v. Coover, 10 Cal. 633.
    All proceedings of taxing officers are void, unless in strict compliance with law. Blackwell on Tax Title, 31-34; Fletcher v. Powell, 6 Wheaton, 119 ; Early v. Doe, 16 How. (U. S.), 610; Cooley on T. 216, 217.
    II. The action of the board was made arbitrarily; was. not supported by any evidence, and is unjust. This is stated in the petition, and must be taken as true.
    The board acts in a judicial capacity (People v. Howland et al., 61 Barb. 273 ; People v. Reddy, 43 Barb. 544 ; People v. Ferguson, 38 N. Y. 92; Sioux City and Pacific R. R. v. Wash. Co., 3 Neb. 30; People v. Goldtree, 44 Cal. 325); and must be governed by the evidence presented. Where there-is no evidence, the return under oath of the owner, if uncontradicted, must be considered controlling and conclusive. People v. Howland, 61 Barb. 284; People v. Assessors, 40 N. Y. 154; Darling v. Greene, 50 Ill. 427; Potter v. Greene, 13 Cal. 329, 330.
    III. The entry on the journal is not a statement of facts, within the intent and meaning of the statutes, and is insufficient.
    Under the law of 1847, previous to the amendment of 1859, the finding of the board, its conclusions of law and fact, were entered upon the journal by simply recording the amount added — a general verdict. Following the construction of the law of 1847 by the Supreme Court, in the the case of Hambleton v. Dempsey, 20 Ohio, 168, came the amendment of 1859.
    The amendment requires a (separate) entry of the facts upon which the addition is made — a special verdict.
    The entry says: “ The return was, in view of the facts ” {what facts it does not pretend to state) “ considered insufficient and below the actual value of the property,” which is-a eo u elusion of law and fact, a general verdict, found from facts which have nowhere been stated.
    A finding that a certain sum be added carries with it as a conclusion of law all that is stated in this entry. The amendment requires that something more be stated ; that the facts which, under the law, warrant such conclusion, be stated, or it requires nothing. 1 Greene (Iowa), 292 ; 2 Mich. 486; 12 La. Ann. 777; 35 Miss. 25; 27 Wis. 406; 3 Mass. 523; 15 Mass. 205; 23 Pick. 93; 22 Pick. 571; Cooley on Taxation, 198, 201; 25 Me. 495; 35 Miss. 52 ; 8 East, 245 ; 9 Pick. 414; 21 Pick. 67; 3 Neb. 42 ; 12 Iowa, 531; 13 Pick. 284.
    IV. The entry is untrue; is only prima facie evidence and may be contradicted.
    The petition states that the entry is untrue, and on demurrer it must be conceded.
    The law requires that an entry be made . . . of the facts, but here we have an entry of admitted falsehoods, and the demurrer admits that the board has not made any entry of facts.

      “ The entry is only prima facie correct, and may be contradicted.” Hambleton v. Dempsey, 20 Ohio 168; State v. Northern Belle Mining Co., 12 Nevada, 93 ; People v. Reynolds, 28 Cal. 111, 112 ; Sioux City and Pacific R. R. Co. v. Washington Co., 3 Neb. 41, 42.
    The action of the board, then, in making an addition to plaiutiff’s sworn return, is not an error of judgment in the exercise of a discretion confided to it by law, but it is an; arbitrary, false, and unjust act in disobedience of the law,, supported by a false entry, showing fraud, palpable mistake,! or gross abuse of power.
   Johnson, J.

Two questions are presented :

1. As to the force and effect to be given to the proceedings and action of the board of equalization, in adding totlie valuation of Mueller’s return, as disclosed upon the face of those proceedings, considered without reference to the' extrinsic facts stated in the petition tending to impeach the decision of the board.

2. If upon the face of these proceedings the addition was authorized, then whether the allegations of extrinsic facts are sufficient in law to invalidate such addition.

As to the force and effect to be given to the proceedings of the board, and the statement of. reasons made on its journal, aside from the extrinsic facts stated in the petition.

The statute (2 S. & C. 1457) is as follows : “And said board shall'have power to add to or deduct from the valuation of the personal property, moneys, or credits of any person returned by the assessors, or which may have been omitted by him, or to add other items, upon such evidence as shall be satisfactory to said board, whether said return be made upon oath of such person or upon the valuation of the assessor; but when any addition shall be ordered to be made to any list returned under oath, a statement of the facts on which such addition was made, shall be entered upon the journal of the board.”

. It is not our purpose to discuss, in this case, the general powers of boards of equalization, the manner of their proceeding, the character of the evidence upon which they should act, nor the quantity of proof that will warrant an addition to a sworn return. Neither will we consider the legal effect of' such an addition, without any statement on the journal of the facts on which it was made, nor attempt to define, as applicable to other cases than the one at bar, what consitutes a sufficient statement of facts on which such additions may be made, to warrant the same.

Assuming that the statute requiring such a statement of the facts to be made upon the journal of the board is mandatory, and that such an addition without such entry upon the journal would be void; the question before us is, whether the statement entered upon the journal of this board, is, upon its face, sufficient to warrant the addition of $1,000 to the monthly average value of all goods and merchandise owned by Mueller.

In this case, requiring a complex computation, to ascertain the monthly average value of a merchant’s or manufacturer’s stock, the facts on which such an addition to a return is founded may be, and generally are, different from the facts on which additions to single items of property are made.

In the former case, the monthly average val ue is ascertained by a calculation based on a series of quantities and values, while in the latter it is the enumeration and valuation of specific articles.

The addition to Mueller’s return, was to the monthly average value of goods and merchandise.

The statement of facts entered upon ■ the journal, and upon which such addition was made, is that the return, in that respect, was insufficient and below the actual value.

Interpreting this journal entry in.the light of the subject matter of the item of the return to which the addition was made, we understand the board as saying, that the monthly average value of Mueller’s goods and merchandise was insufficient and below the actual value thereof.

Whether this arose, from under enumeration or under valuation of stock on hand each month, or from an error of computation by which the rqonthly average was too small, we are not advised. In either ease the return made would be below the actual monthly average value, and for either cause, the board was authorized to make the addition if satisfied of that fact.

The ultimate fact, and not the evidence on which it was founded, was stated, that is, such monthly average was insufficient and below the actual monthly average by $1,000.

Upon this statement of facts, we feel bound to presume, in the absence of any showing to the contrary, that the board acted upon sufficient evidence, and that the statement of facts was sufficient. Hambleton v. Dempsey, 20 Ohio, 168.

II. Are the facts alleged in the petition sufficient in law to invalidate the action of the board?

Under what circumstances a court of equity will relieve against the action of a board, on the sole ground that it was coutrary to the weight of the evidence, when such action was the result of a fair and impartial consideration of the evidence, the facts of this case do not require us to determine.

It will be conceded, however, that the jurisdiction of a court of equity, in cases of fraud and mistake, embraces the action of such boards, as fully as in other cases of like nature.

The petition, as grounds for impeaching the action of the board, states that all the evidence before it was the sworn return of Mueller, and his statement that it was in all respects correct, that there was no other evidence ofered, and that the addition was made without any- other or further testimony, and was unsupported by any evidence.

The demurrer admits the truth of these allegations* The code requires that all proceedings under it shall be liberally construed with a view to promote its objects, and assist the parties in obtaining justice.

This petition lacks clearness of meaning, but applying this rule of construction, a majority of the court are of opinion that it contains a direct charge that the board acted, not only without any evidence to suppoi't its decision, but in the face of the evidence; in short, that its action was arbitrary, and not in the exercise of judgment founded on satisfactory reasons.

Boards of equalization are sworn to fairly and impartially equalize the value of property for purposes of taxation. Incidental to this, is the power to add or deduct, upon such evidence as shall be satisfactory to the board. This involves the exercise of judgment founded upon evidence. The fact must appear from evidence, to the satisfaction of the board, that such addition or deduction should be made in order to equalize that property with other taxable property.

The plain and reasonable inference is, that without evidence the power can not be exercised. If, as is averred, there was no evidence before the board, except that showing the correctness of the return, the addition was not founded upon facts, but in contradiction to the facts. If there was no evidence to support the addition, as is alleged, there was not any exercise by the board of judgment founded upon evidence. In the absence of a showing to the contrary, it will be presumed that such a board acts upon satisfactory evidence; but where, as in this case, it appears that it has not only acted without any evidence to support, its decision, but directly opposed to evidence in ■support of the return, we are compelled to hold that such action is contrary to the injunctions of the oath of office, and is an arbitrary and unauthorized exercise of the power to add to or deduct from a return.

It is said that the board had power, without any sworn testimony or other evidence of witnesses, and upon the knowledge or information of its members, to make this addition. Assuming this to be so, then this personal knowledge or information is “ evidence,” within the terms of the statute.

The averment is that the board acted without any evidence. If personal knowledge or information of members of the board is evidence, upon which it can base its action, then the averment that the addition was made without any evidence, and was unsupported by any, -^vas a denial that the board possessed or acted upon such knowledge or information.

"We hold, therefore—

1. That, upon the face of the proceedings of the board, aside from extrinsic facts, the tax was legally assessed.

2. That, taking the averments of the petition to be true, the action of the board, in making such addition to Mueller’s return, not being founded upon any evidence, was unauthorized.

Judgment of the district court affirmed, and cause remanded.

McIlvaine, C.J., and White, J.,

being of opinion that the averments of the petition were' not sufficient to impeach the action of the board, did not concur in the application of the second proposition in the syllabus.


author: McIlvaine, C. J.

text:
    Morris v. Daniels.
    1. Under the eighth section of the act of February 22, 1831, commonly called the deeds act (S. & 0.458), “any bona fide purchaser” is one who has paid a valuable consideration for his purchase.
    2. A purchaser of unoccupied, and unimproved lands at judicial sale may be protected against a prior unrecorded deed, by the provisions of said section.
    3. The knowledge of the existence of a former unrecorded deed, which deprives a subsequent purchaser of the protection of the act, is knowledge at the time of his purchase.
    4. The burden of proof as to the payment of a valuable consideration rests upon the subsequent purchaser.
    5. Upon proof of the payment of a valuable consideration by the subsequent purchaser, the burden of proving his bad faith, and Ms knowledge, at the time of his purchase, of the existence of a former unrecorded deed from the same grantor, rests upon the holder of the prior deed.
    6. A subsequent purchaser, who holds under a quitclaim deed, which purports to convey the corpus of lands, may be protected under the statute.
    7. A deed executed to a purchaser of lands sold under an execution, by the sheriff, under an order of the court, after confirmation of the sale, in which the payment of the purchase-money is acknowledged, is prima facie evidence of such payment; but a deed containing a like acknowledgment by the grantor at a private sale is no evidence of such payment as against a prior unrecorded deed.
    Error reserved in the District Court of Lucas county.
    The original action was brought by plaintiffs in error, against defendants in error, to recover the possession of real estate, described as the undivided one-sixteenth part of River tract, No. 5. The whole tract contains -149.85 acres. A sixteenth part thereof is estimated to be 9.24. acres.
    Stephen B. Comstock was the common source of title, and, previous to November 4, 1885, was the sole owner of the tract. Comstock conveyed undivided portions of said tract, as follows: To El etcher, November 4, 1835, 4-16; to George McKay, November 6, 1835, 4-16; to J. R. Giddings, May 27, 1836, 2-16; to Raymond and "Wade, May-30, 1836, 1-1G; to C. Nieswanger, August 27, 1836, 4-16. Leaving in fact in Comstock, at this last date, 1-1.6.
    On the 22d of June, 1837, George McKay reconveyed to Comstock 79-100 of an acre undivided; so that, on the day last named, Comstock was seized of 10.03 acres.
    The deeds of conveyance above referred to, were all promptly recorded, except the deed to Raymond and Wade, which was not recorded until June 22, 1853.
    Eor the purposes of this ease, it may be conceded, and we assume, that the plaintiffs have shown a complete chain of title from Raymond and Wade to themselves. This is so, beyond question, as to 7.24 acres.
    The defendants claim title under Comstock; thus: In 1845, nine acres, undivided, of this tract, were levied upon and sold, as the property of Comstock, to one Russell C. Daniels, for $100. Sale confirmed, and deed executed and recorded.
    In the same year, eight acres, undivided, were seized under another execution, as the property of Comstock, sold to Russell C. Daniels. Sale confirmed, and deed made and recorded.
    In 1846, Comstock executed a quitclaim deed (so called) to Russell C. Daniels, for an undivided eighth part of said River tract, purporting to be in consideration of $10, the receipt of which was acknowledged. The terms of the grant, in this deed, were: “ I do hereby bargain, sell, and quitclaim to the said Russell C. Daniels, his heirs and assigns forever, the following real estate; viz., one equal,undivided eighth part of River tract, No. 5.”
    In 1847, Russell C. Daniels, conveyed all his interest in said tract to Willard J. Daniels, by the following description ; viz., “ Thirty-four acres in common, and undivided, in River tract, No. 5.” And, afterward, in the same yeax*, the share of Willax'd J. Daniels was sold, under execution, to Daniel McBain. This sale beiixg confirmed and deed made, McBain instituted proceedings for partition (to which, however, the plaintiffs, or those under whom they claim, were not made parties), pending which Comstock and Russell C. Daniels conveyed to McBain by deed, in same form as the quitclaim from Comstock to Russell C. Daniels the whole of said river tract, purporting to be in consideration of one dollar paid; after which such proceedings wei*e had that 47.57 acres were aparted and set-off to McBain, including the shax’e conveyed to Raymond and Wade in 1836. Subsequently the defendants acquired the title of McBain in and to said 47.57 acx'es.
    Actual possession was first takexx of said lands, after partition, in 1852.
    In the coux’t of common pleas judgment, on verdict, wax rendered for defendants, and a petition in error, to reverse the same, was filed in the district court, alleging, among other things, error in the charge to the jury, which was resex’ved for decision in this court.

      Scribner, Hurd & Scribner, for plaintiffs in error:
    1. Notwithstanding their failure to record their deed, the conveyance to Raymond and Wade invested them with a full and complete title, and this title passed to their grantees. Irvin v. Smith, 17 Ohio, 226; Wade v. Comstock, 11 Ohio St. 71; Cunningham v. Buckingham, 1 Ohio, 264; Allen v. Parish, 3 Ohio, 107.
    2. There being no actual possession, the law gave to Raymond and Wade, axxd their grantees, the constructive possession; and this they retained until ousted by an adverse entry. Green v. Liter, 8 Cranch, 229; Angell on Lim. §§ 394, 395; Jackson v. Howe, 14 Johns. 405; Tyler on Eject. 905 ; Saxton v. Hunter, 1 Spencer, 487, 489; Holt v. Hemphill, 3 Ohio. 232, 238, 239.

      They were not disseized of this constructive possession by the execution sale against Comstock. Biggs v. Thompson, 2 Ohio, 95. Nor by the quitclaim from Comstock to Daniels. Bates v. Norcross, 14 Pick. 224.
    3. The judgment debtor (Comstock) had neither title nor possession ; therefore, nothing passed to the purchaser at the execution sale. Swan’s Stat. (ed. 1841), 475, 476; Howeth v. Mills, 19 Texas, 295; 20 U. S. Dig. 404; Hamilton v. Jack, 1 Sneed (Tenn.), 81; Smith v. Steel, 17 Penn. St. 30; Bott v. Burnell, 9 Mass. 93 ; 11 Mass. 168; 14 Pick. 224; 1 Wend. 502; 4 Cow. 599; 1 Ohio, 281; Baird v. Kirtland, 8 Ohio, 23; Haynes v. Baker, 5 Ohio St. 253; Biggs v. Thompson, 2 Ohio, 95; 19 Ohio, 21; 2 Ohio St. 36; 5 Ohio St. 78.
    4. In harmony with this view, and complementing it, is the doctrine of the law, that, in order to bring himself within the rule protecting bona fide purchasers without notice of a prior title, the vendee must show that his vendor was in possession at the time of the purchase, claiming seizin.

      a. The defense must be pleaded. 2 Lead. Eq. Cas. 61, 63 (3d ed.); Gallatian v. Cunningham, 8 Cow. 366, 382; Snelgrove v. Snelgrove, 4 Dessaus. 289, 290.

      b. Matters necessary to be averred. 2 Lead. Cas. in Eq. (3d ed.), 62, 94, 120, 121.

      c. The evidence necessary to support the defense. 2 Lead. Eq. Cas. (3d ed.), 69, 103, 116, 117, 119, 125, 126.

      d. Vendor must be in actual possession, claiming seizin. 2 Lead. Eq. Cas. 94 (3d ed.); Hill on Trustees, 512; Mitf. PI. 275; Strode v. Blackburn, 3 Ves., Jr. 226; Walwyn v. Lee, 9 Ves., Jr. 24, 32; Daniels v. Davison, 16 Ves., Jr. 252; Jackson v. Rowe, 4 Russ. 523 (4 Eng. Ch.) ; Story’s Eq. Pl. § 805; 1 Hilliard on Vendors, 415, note; Snelgrove v. Snelgrove, 4 Dessaus. 287; Tompkins v. Anthon, 4 Sandf. Ch. 97 ; Boone v. Chilles, 10 Pet. 177, 210, 211; Bayard v. Norris, 5 Gill. 468.
    II. A deed of quitclaim passes only such title as the' grantor had; it can. not be made available under the defense of a bona fide purchase without notice.

      а. Under such a deed, the grantor is not himself estopped from claiming under a subsequently-acquired title; a fortiori, his prior grantee for value is not precluded. 4 Kent, *261, note; Jackson v. Hubble, 1 Cow. 613; Dart v. Dart, 7 Conn. 250; Smith v. Pollard, 19 Ver. 272; Blanchard v. Brooks, 12 Pick. 47; Wright v. Shaw, 5 Cush. 56; Comstock v. Smith, 13 Pick. 116; Pike v. Galvin, 29 Me. 183; Partridge v. Patten, 33 Me. 483; Farmer’s, etc., Co. v. McKinney, 6 McLean, 1; Bogy v. Shaab, 13 Mo. 366; Frink v. Darst, 14 Ill. 304; Coe v. Persons Unknown, 43 Me. 432; Van Rennselaer v. Kearney, 11 How. 297, 322.
    This is the doctrine in Ohio. Kinsman v. Loomis, 11 Ohio, 475; Woodbridge v. Banning, 14 Ohio St. 328, 330.
    б. The same doctrine prevails where the grantor in the quitclaim deed has covenanted against his own acts. Comstock v. Smith, 13 Pick. 116; Allen v. Holton, 20 Pick. 458; Sweet v. Brown, 12 Met. 175 ; Gress v. Evans, Chicago Legal News, July 3, 1875, p. 333; See White v. Brocaw, 14 Ohio St. 339.

      c. Nor is a judgment debtor estopped from setting up an after-acquired title. Herman on Estoppel, § 290, and cases; Freeman v. Thayer, 29 Me. 369, 375.

      d. A quitclaim deed is not available under the defense of a bona fide purchase without notice. Brown v. Jackson, 3 Wheat. 449; 4 U. S. Cond. Rep. 291; Oliver v. Piatt, 3 How. U. S. 335, 410. Followed in May v. LeClaire, 11 Wallace, 217, 232; Villa v. Rodriguez, 12 Wallace, 323; and by Storer, J., in Harvey v. Jones, 1 Disney, 72, 73. Bragg v. Paulk, 42 Me. 502; Coe v. Persons Unknown, 43 Me. 432; Adams v. Cuddy, 13 Pick. 460; Comstock v. Smith, 13 Pick. 116; Boone v. Chilles, 10 Pet. 177, 211; Perkins’ note, 2 Sugd. V. & P. 562, top-; Rodgers v. Burchard, 34 Texas, 441; Marshall v. Roberts, 18 Minn, 405; Jamaica, etc., Co. v. Chandler, 9 Allen, 169; Ridgway v. Holliday, 59 Mo. 444, 455.

      e. The rule is the same, even though the grantor has covenanted specially against his own acts. Per Story, J., in Oliver v. Piatt, 3 How. U. S. 410; Boone v. Chilles, 10 Pet. 177, 211; Comstock v. Smith, 13 Pick. 116 ; Coe v. Persons Unknown, 43 Me. 432; Woodfolk v. Blount, 3 Heyw. 147; 3 Eq. Dig. 664, § 291.
    TTT. In order to establish the defense that said Daniels was a bona fide purchaser at said sheriff’s sale, the defendants must show by testimony that the purchase-money for the lands so bid off to him was paid to the sheriff. The recital, in the deeds executed by the sheriff, that the purchase-money had been paid, does not establish that fact. Nolen v. Gwyn, 16 Ala. 725; De Vendal v. Malone, 25 Id., 272; Kimball v. Fenner, 12 N. H. 248; Rogers v. Hall, 4 Watts, 359; Clark v. Depew, 1 Casey, 509; Henry v. Raiman, lb. 354, 360; Bolton v. Johns, 5 Barr, 151; Lloyd v. Lynch, 4 Casey, 419; 2 Lead. Eq. Cas. (3d ed.), 126; 3 Washb. Real Prop. (3d ed.), 289, § 60; Peck v. Malloys, 10 N. Y. 509; 22 Mich. 410; 4 Dessaus. 287; 29 Texas, 216; 1 Whart. 410.
    IY. The fact that Daniels, prior to his purchase at the execution sale, had knowledge of the unregistered conveyance, establishes, prima facie at least, that he had such knowledge at the time of his purchase. 2 Best on Ev. § 405 ; Cunningham v. Buckingham, 1 Ohio, 265 ; 11 Wallace, 356, 366.

      Haynes, Potter & Beckwith, for defendants in error:
    1. The really important question for determination is, whether Willard J. Daniels, deceased ancestor of the present defendants, his heirs, stands in the relation of a subsequent purchaser without notice of the title claimed through Raymond and Wade.
    Our position is this: The neglect, failure, and laches on the part of Raymond and Wade, to place their deed of an undivided one-sixteenth (1-16) of tract 5 upon record for upward of seventeen years after its supposed delivery to them, while, as between them and their grantor, Com-stock, the title was in them (Raymond and Wade) and their grantees, yet under the express declared statute law of the state, and of which Raymond and Wade were bound to take notice, this neglect, laches, and omission, on the part of Raymond and Wade, operated, in law, to confer upon Comstock the power to pass that title completely to a third party, for value, without notice of the Raymond and Wade title.
    The statute means nothing else, and is senseless under any other construction. 1 S. & C. 467, § 8; Irvin v. Smith, 17 Ohio, 226.
    The statute attaches no such condition as that the subsequent bona fide purchaser must also have entered into actual possession of said premises. The statute was enacted to meet just such cases, where there is no one in the actual possession of the premises. The purchaser of property is bound to know whether there is any one in the actual possession of the premises he is to purchase; and, if there is, he takes his title to such premises subject to the title of the one in actual possession, whatever that title may be.
    2. The deed to Raymond and Wade was fraudulent and void, as to the Daniels’ title. 1 S. & C. 467, § 8.
    3. A purchaser, at an execution sale, without notice, is a subsequent bona fide purchaser, and entitled to the statutory protection. 1 8. & C. 467, § 8.
    4. As to whether the defense of a bona fide purchaser for value, as against the true owner, can be maintained, under the circumstauces of this case. See Irvin v. Smith, 17 Ohio, 226; Northupt v. Brehmer, 8 Ohio, 392; Scribner v. Lockwood, 9 Ohio, 184; Paine v. Mooreland, 15 Ohio, 435.

      William Baker, also for defendants in error:
    1. A purchaser, who takes title by a deed of quitclaim, is protected by the recording statutes precisely as a purchaser who takes his title by warrantee deed. Hull v. Ashby, 9 Ohio, 96; Shotwell v. Harrison, 22 Mich. 410; 2 Leading Cases in Eq. 101.
    2. The production of a certified copy of such deed with its recitals, is prima fade evidence of payment of the consideration. Foster v. Hull, 12 Pick. 89; Clapp v. Tirrell, 20 Pick. 247; Jackson v. McChesney, 7 Cow. 360; Wood v. Chapin, 3 Kernan, 509; 6 Cow. 90; Briggs v. French, 2 Sumner, 252; Gully v. Grubbs, 1 F. F. Marshall, 387; 22 Mich. 410; 1 S. & C. 468, § 10; 16 Ohio, 441; 1 Best on Ev. 411 (1st Am. ed., 1878); 2 Id. 718.
   McIlvaine, C. J.

The questions which control this ease, arise under the statute providing for the recording of deeds, etc.

The land, which the plaintiff seeks to recover, being a sixteenth part, or 9.24 acres, of a tract containing 149.85 acres, was conveyed, in 1836, by Comstock to Raymond and Wade; but the deed of conveyance remaining unrecorded until 1853, the defendants claim that their title, derived from the same source, although at a later date, being evidenced by deeds duly executed prior to 1853, is protected by that statute.

The provisions of the statute (S. & C. 467), applicable to the case before us, are as follows:

“ Sec. 8. That all other deeds and instruments of writing for the conveyance or incumbrance of lands, etc., shall be recorded within six months from the date thereof; and if such deed, or other instrument of writing, shall not be so recorded within the time herein prescribed, the same shall be deemed fraudulent, so far as relates to any subsequent bona fide purchaser, having, at the time of making such purchase, no knowledge of the existence of such former deed, or other instrument of writing.”

Under this statute, a subsequent purchaser will not be protected against a prior unrecorded deed, unless the purchase be made in good faith, for a valuable consideration, and without knowledge at the time, of the existence of the former deed. The word “purchaser” is not here used in its broadest sense, including every person who acquires lands otherwise than by descent; but in its ordinary and original meaning, whereby it is signified that the acquisition was upon a valuable considei’ation.

It is claimed, in the first place, by plaintiffs in error, that a purchaser at a sale of unoccupied lands, under .an execution, is not within the protection of this statute.

Lands may be seized in execution and sold, whether occupied or unoccupied, and if occupied, whether by the judgment debtor or another; but whether the purchaser takes any thing by his purchase, depends, ordinarily, upon the fact that the judgment debtor had a legal estate therein. So* at a private sale, if the grantor owns the lands which he undertakes to convey, whether occupied or Unoccupied, the title will pass ; but, if the grantor has no interest, the purchaser takes nothing by the purchase. Rut, under the registry act above quoted, where the judgment debtor, in the first case put, or the grantor, in the second, is upon the public records, the apparent owner, whether the lands be in his occupancy or unoccupied, a prior purchaser from him, who has neglected to have his deed recorded within six months from its. execution, shall not gainsay the title of a subsequent purchaser in good faith, and without knowledge of the pi’ior deed at the time of his purchase. The statute protects purchasers at judicial sale, as well as at private sale. Whether the rule would be different if the sale purported to be only of the interest of the debtor or grantor, in the premises, we need not'say, as, in the case before us, it was the corpus of land that was sold in each instance.

It is also claimed that the court below erred in charging the jury, that knowledge of the prior deed, which would deprive the subsequent purchaser of the protection of the statute, must be knowledge at the time of the purchase, and, although he might have had knowledge at a previous date, if the fact had been forgotten and was not' known at the time of the purchase, he would, nevertheless, be protected ; and, in refusing to charge, that if the subsequent purchaser was shown to have had knowledge of the prior unrecorded deed some nine years before the purchase, then it is devolved upon him to show that such knowledge had escaped him at the time of -his purchase. The court did charge, however, upon this subject, as follows :

“The plaintiffs, on the other hand, allege that at the time these deeds were made to Russell 0. Daniels for Willard J. Daniels, the latter in fact knew of the existence of the prior unrecorded deed to Raymond and Wade. And one of the questions for you to determine is, whether he did, at the time he made the purchase under those sheriff’s sales, and at the time he took his deed from Comstock, know of this prior sale to Raymond and Wade., And evidence has been given tending — and perhaps it is not too much to say, strongly, tending to prove that, at the time the sale was made to Raymond and Wade, Daniels did know of it; did know there was such a sale. There is, however, evidence on the other side, tending in another direction. It is claimed by the plaintiffs, that if they shall succeed in satisfying you that he knew of it at the time of the sale, the presumption is that he knew of it at the time he took his deeds, and that the burden of proving that he forgot it is upon the defendants. But I do n’t so understand the case. The burden of proving that at the time Daniels took these conveyances — about nine years after the original sale to Raymond and Wade was made — he then knew, and had in his mind a consciousness, that the property, of which he was then taking a conveyance, was previously sold to Raymond and Wade; the burden of making such proof rests upon the plaintiffs. And you must be satisfied, to avoid the effect of these conveyances at the time of these sheriff’s sales, and of the conveyance from Comstock to Daniels of an undivided one-eighth, that the latter then knew and remembered that part of the property, acquired by those conveyances, had previously been conveyed by Comstock to Raymond and Wade. And I won’t recapitulate the evideuce, or advert to it further, but will simply repeat that the question is, not what the evidence shows his knowledge to have been at the time Raymond and Wade took their deed; but the question is, what did. Daniels know at the time he took his deeds from the sheriff and from Comstock. And unless you can find that he then knew of the prior conveyance, the plaintiffs can not avoid the effect of these deeds to him as against this unrecorded deed.”

The language of the statute is, “ Having, at the time of making such purchase, no knowledge of the existence of such former deed.” It appears to us, that all the statute requires of the subsequent purchaser is honesty of purpose at the time of making the purchase. It is true, that proof of such knowledge at a date anterior to the purchase tends to prove its existence at the time of purchase. Such is unquestionable the inference, but the streugth of the inference is weaker or stronger according to circumstances. By the lapse of many years, it is weakened or may cease to exist altogether. The circumstances under which the knowledge was acquired, whether or not it would likely make a lasting impression, should also be considered. We do not think there was any shifting of the onus probandi; but it was for the jury, upon the whole testimony to say whether or not such knowledge existed at the time of purchase. If the circumstances before the jury rebutted the presumption that such knowledge continued, they should so find; and we think that the matter was substantially put to the jury in this light.

Upon the face of the several deeds offered by the defendants in support of their chain of title, there was an acknowledgment, by the grantor in each, of the receipt of a valuable consideration, but no other or further proof was offered as to the payment of a consideration for either of the conveyances.

Now, if either of the deeds making up the defendant’s chain of title between Comstock, the common source, and the defendants, is shown to be within the requirements of the statute, then the protection of the statute must be accorded to them; but if neither of them was of that character, the prior unrecorded deed from Comstock to Raymonel and “Wade, upon which the plaintiffs rely, must prevail.

Two questions, therefore, arise: 1. Upon whom rests the burden of proof? 2. "What is the effect of the acknowledgment of payment appearing upon the face of the deeds in defendants’ chain of title ?

As to the first. It having been shown that the plaintiffs held under a prior, though unrecorded deed, from Com-stock, the burden was upon the defendants to show that the plaintiffs’ deed was “fraudulent” as to them, which, under the statute, could only be done by proving that they (or some one in their chain of title from Comstock) were bona fide purchasers, that is, for value. And when such-proof is made, namely, the payment of a valuable consideration, the presumption arises that they were bona fide purchasers, having at the time of making the purchase no knowledge of the existence of the prior unrecorded deed. The rule in such case is entirely analogous to that which obtains in relation to commercial paper, and rests on the same principle. The indorsee of negotiable paper before due must prove the payment of a valuable consideration as-soon as it is shown that the instrument was made without consideration, or was obtained by fraud.

The holder of a prior unrecorded deed, independent of the statute, is the owner of the land, both in law and equity, and must prevail over a subsequent vendee, unless-the former deed appears tobe “fraudulent,” in the language-of the statute. There is no presumption that it is fraudulent. The neglect to have it recorded within six months does not raise such presumption, for the statute provides “that such deed . . . may be recorded after the expiration of the time herein prescribed, and, from the date-of such record, shall be notice to any subsequent purchaser.”

It is said in some of the books that the reason of the rule-requiring the holder of the later deed to prove the payment of a valuable consideration is found in the fact that the .knowledge and means of proving it are more reasonably and naturally in his possession, and the further reason that it is more difficult to prove the negative than the affirmative of a proposition. However this may be, it appears to me that, from the very nature of the controversy which ■arises between the owner of the prior and the owner of ■the later deed, under this statute, the latter is the attacking •party, and must, in order to defeat the older title, show that '•it is fraudulent, within the meaning of the statute.

As to the second question : What effect should be given to recital of payment in the deed? No one disputes, that as between the parties and privies, an acknowledgment of the receipt of payment in a deed is prima facie evidence of the payment. But it is prima facie only as between them. The question here, however, is: What effect should be given to such recital as against a person claiming under an ■older and adverse title ? It is a doctrine as old as the common law, that the declarations of a grantor, made after he has parted with his title, can not be given in evidence to defeat it. Is the proposition under consideration any thing else? As to deeds subsequent to that from Comstock, in defendants’ chain of title, the objection is still more palpable. It is said that these deeds were admissible in evidence to prove the defendants’ chain of title, and therefore all their contents were in evidence — the recepi as well as the ■dedi. In one sense, this is true. For the purpose of proving title in defendants, the deeds were properly admitted. But the payment of a consideration was not necessary to the transmission of title; therefore the recital of payment was not necessary for that purpose. The statute, in cases -of bargain and sale, has made deeds in writing the only evidence of the transfer of title; but it has not made them the only, or any, evidence of the payment of the purchase-money ; and therefore, I take it, a receipt for the purchase-money contained in a deed of conveyance is not admissible to prove payment, where a written receipt outside of the ■deed would not be admissible; and hardly any one would contend that a receipt for the purchase-money written on a ■separate paper would be prima facie evidence as against a person not a party to it.

It has been suggested that while the owner of the subse•quent title might be required to prove the consideration paid by himself, if such payment were relied on, that he .should not be required to prove the payment of a consideration for a previous deed in his chain of title. That he might well and safely rely upon the recital in such previous Reed. In answer we say, that if a valuable consideration were paid by himself, no proof of a consideration for previous conveyances need be made; and if no consideration were paid by himself, the question would then be between .a donee and the owner of a title unquestionably good, except for the statute; and, in such case, to hold that the recital in a former deed is prima facie evidence of the fact of payment, would be the exact equivalent of holding that the law presumes in favor of a party who is admitted to be without equity in himself, a fact which would not be presumed if such admission were not made.

It is also claimed that the rule above indicated would, by lapse of time and consequent loss of testimony, deprive ■the “subsequent bona fide purchaser” of the protection the statute intended for him. In answer to this objection, it is ■enough to say that, by lapse of time, testimony tending to prove the payment of a consideration is not more likely to be lost than the testimony tending to prove that no consideration was in fact paid. The law is no respector of persons.” It has no more regard for one than the other party to a suit.

In its charge to the jury, the court of common pleas, .among other things, instructed as follows :

“ In regard to the purchase-money, I am inclined to think that, prima facie, the deeds themselves are to be taken as evidence of the payment of the purchase-moneyT and that, in the absence of proof to the contrary, you will take that as proof of the payment of the purchase-money.”

In this charge, we think there was error to the prejudice •of plaintiffs, in so far as the defendants’ title depended upon either the quitclaim deed from Comstock to Russell C. Daniels, executed in 1846, or the quitclaim deed from Com-stock and Daniels to McBain in 1852. Not that we have any doubt that a subsequent bona fide purchaser, without notice, under a quitclaim deed like that before us, is protected by the statute, but because the recital of payment of purchase-money contained in those deeds did not prove or tend to prove, as against the plaintiffs, that any valuable consideration was paid.

With regard, however, to the deeds executed by the sheriff upon judicial sales to Russell C. Daniels, we think the instruction was right. Such deeds could only be made upon payment of at least two-thirds of the appraised value of the lands, and upon confirmation of sale by the court, as is provided by statute regulating such sales; and the presumption being that public officers perform their duties in the mode prescribed by law. We think a deed, executed by a sheriff, upon a sale approved by the court, and under an order of court, in which the receipt of the purchase-money is acknowledged, is 'prima facie evidence that the purchase-money was paid.

The case then stands thus : At the time of levies and sales, there was in Comstock, subject to seizure, the following undivided interests in said River tract 5, 9.24 acres by this original title, .79 of an acre by reconveyance from McKay, and 9.24 embraced in the unrecorded deed to Raymond and Wade, making in all 19.27 acres. Of this quantity, 17 acres were sold under the two executions, leaving in the plaintiffs, or those under whom they claim, 2.27 acres, which, under this view of the case, they were entitled to recover, and to which the defendants had no appearance of title, except by virtue of said quitclaim deeds.

Judgment reversed and cause remanded.


author:
Okey, J.
      White, J.,

text:
    Hulse v. The State.
    1. Neither a deputy clerk of the court of common pleas, nor a deputy county auditor, has any power to act in selecting the names of persons for a struck jury. That duty must be performed by the clerk, auditor, and recorder in person, except as otherwise provided in the statute. (75 Ohio L. 642, g 27 : Kev. Stats. 2 5188.)
    2. If the panel for a struck jury is exhausted, a deputy sheriff may, under direction of the court, call a bystander, although the criminal bailiff provided for in the act of 1879 (76 Ohio L. 54) is present and competent to perform the service.
    3. The jurors in a criminal ease, after retiring to consider of their verdict, returned into court and requested the judge to state his recollection of the evidence of a witness who had given material testimony on the trial. Held, That to comply with the request is not error.
    Error to the Court of Common Pleas of Hamilton county. Reserved in the district court.
    At the October term, 1879, of the court of common pleas, Harry Hulse was convicted and sentenced to the penitentiary, on an indictment in which he is charged with the commission of a felony in the preceding February.
    Several bills of exceptions were signed at his request during the trial, and, in the petition in error filed by him in the district court, thirty-one errors are assigned.

      C. H. Blackburn, for plaintiff in error :
    1. The struck jury demanded by the defendant for the trial of the cause should have been selected by the clerk, auditor, and recorder of Hamilton county, as required by law. It could not be done by deputy. 2 Rev. Stat., §§ 5185-5188 ; Gibbons v. Catholic, etc., 34 Ohio St. 289 ; State ex rel. v. Lee, 21 Ohio St. 662; State v. Marlow, 15 Ohio St. 114 ; 4 Neb. 351; 51 N. Y. 401; 52 N. Y. 27; 26 Wis. 390 ; 9 How. U. S. C. 259 ; 8 Paige (Ill.), 527 ; 3 John. Ch. 332 ; 5 J. R. 58 ; 26 Wend. 485 ; 20 Johnson, 735 ; 7 John. Ch. 315 ; 4 Wend. 647; 5 Cowen, 193 ; 23 Wend. 260, 268 ; 5 John Ch. 101; 27 Cal. 728; 81 Penn. St. 849; 2 Salk. 609.
    2. The court could, not direct the deputy sheriff to fill up the jury from the bystanders. It was the duty of the criminal bailiff' alone. 76 Ohio L. 54.
    3. The judge ought not to have given to the jury his recollection of what John Davis had testified to. Coppage v. Com., 3 Bush (Ky.), 532; Tanham v. Com., Id. 528; Thompson v. State, 47 Ala. 37; State v. Green, 5 Rich. N. S. 65; Nolan v. State, 19 Ohio, 131; Cunningham v. Com., 9 Bush (Ky.), 149 ; Houston v. State, 4 Green. 437; State v. Brown, 67 N. C. 435 ; State v. Kennedy, 7 Nev. 374; Pound v. State, 43 Ga. 88; Bond, v. People, 39 Ill. 26; 4 Parker, 558; 8 Ohio St. 211; 13 Ohio St. 1; 13 Ohio 490; 14 Ohio, 511; 2 Ohio St. 54; 26 Ohio St. 208; 34 Ohio St. 299.

      George K. Nash, Attorney-General, for the state, urged:
    1. That it was proper for the deputy clerk and deputy county auditor to act in selecting the names of persons for the struck jury. ‘ 8. & S. 70; S. & C. 233, § 5 ; 67 Ohio L. 104, § 6.
    Section 5188 (Rev. Stat.) was added to the statutes, so that in counties where the auditor, clerk, or recorder has no deputy — there are many such counties in Ohio — the law might not fail on account of the sickness or absence from the county of either one of the above-named officers.
    2. The court did not exceed its authority in directing a deputy sheriff to select a jury from the bystanders. Under section 2 of the act of 1879 (76 Ohio L. 54) it seems to be the peculiar duty of the criminal bailiff to have the care and custody of the accused. If it was his duty to go out on the streets or among the bystanders to select jurors, it would at times leave an unrecognized prisoner without a guardian.
    3. It was not error for the judge to give the jury his recollection of the evidence. Hening v. State, 1 Iowa, 205; Waterman’s U. S. Crim. Dig. 627; 1 Archbold’s Cr. Pr. & PL (8th ed.) 552; Bishop on Crim. Pro. (2d ed.), §§ 976,. 982.
   Okey, J.

We have considered and determined as to the merits of the several grounds relied on for the reversal of the judgment, but we deem it unnecessary to report more than three of the questions presented.

The prisoner demanded a struck jury, and in pursuance of the demand the names of forty persons were selected at the auditor’s office by the county recorder, a deputy clerk of the court of common pleas, and a deputy county auditor. The auditor was absent from the county, and the clerk of the court of common pleas, though not absent from the county, was not present at the selection.. Neither of the deputies had been selected by a judge to-perform that service. Subsequently the prosecuting attorney and the'attorneys for the prisoner appeared at the clerk’s-office, and struck from the list which had been prepared twenty-four names, in accordance with the statute, and a venire was issued for the remaiuirig persons. It does not appear whether it was then known to the prisoner or his counsel that the deputy auditor and deputy clerk, and not their principals, had assisted in selecting the names.

When the jurors were called for the trial of the case, and, before they -were impaneled or sworn, the prisoner by his counsel challenged the array, on the ground that the-county auditor and clerk of the court had not assisted in selecting the names of the persons for jurors, nor had any person assisted for either who had been appointed by a judge for the purpose. The court overruled the challenge, and the prisoner excepted.

The act of 1878, then in force, provided as follows:

“A challenge to the array may be made, and the whole array set aside by the court, when the jury, grand or petit, was not- selected, drawn or summoned, or where the officer who executed the venire did not proceed, as prescribed by law.” 75 Ohio L. 639, § 14; Rev. Stat., § 5175.
“Any party to an action may demand a struck jury for .the trial of an. issue of fact therein, by filing a precipe with the clerk; and thereupon the clerk shall proceed to the office of the county auditor, and there take to his assistance the county auditor and recorder in the selection of the list of names for such jury; which three officers shall select from the qualified electors of the county, the names of forty persons impai’tial between the parties, and who, from their intelligence and sound judgment, are believed to be well qualified to try the cause; the auditor shall make and preserve in his office a list of the names of the persons so selected; and the clerk shall, without delay, give four days’ notice to both parties, or their attorneys of record, of the time of striking the jury, and furnish to each at the same time a true copy of such list.” 75 Ohio L. 641, § 24; Eev. Stat., § 5185.
“ If the clerk, auditor, or recorder, is interested in the cause, sick, absent from the county, related to either of the parties, or does not stand indifferent between them, a judge entitled to hold such court may, in term time or vacation, appoint some judicious, disinterested person to take the place of the officer so disqualified, in selecting and striking the jury, and to do and perform all things required to be done by such officer when acting in that behalf.” 75 Ohio L. 642, § 27 ; Eev. Stat., § 5188.

Section 25 (75 Ohio L. 642; Eev. Stat., § 5186) provides how the parties shall proceed in striking names from the list. This provision was complied with, and the venire was properly issued and served.

These provisions, it will be seen, are found in that part of the revision relating to practice in civil cases, but they also apply to criminal cases, except that those relating to a struck jury do not apply to a capital case.

By acts then in force it was further provided as follows :

“ The auditor of any county may appoint a deputy, to be approved by the commissioners of such county.” 66 Ohio L. 35, 36.
“Every such deputy shall, previous to entering on the duties of his appointment, take an oath or affirmation faith•fully to perform all the duties of his appointment; and, when so qualified, the deputy may do and perform any and all of the duties appertaining to the office of his principal.” 1 S. & C. 500.
“ Clerks (of the courts of common pleas) may each appoint one or more deputies, to be approved by their respective courts if in session, if not then in session by any judge thereof.” S. & S. 70.
“ Every such deputy shall, previous to entering on the duties of his appointment, take an oath or affirmation faithfully to perform all the duties thereof; and, when so qualified, the deputy may do and perform any and all of the duties appertaining to the office of his principal.” 1 S. & C. 233.
“A duty enjoined by statute upon a ministerial officer, and an act permitted to be done by him, may be performed by his lawful deputy.” 75 Ohio L. 598, § 595 ; Rev. Stat., § 4949. And see Rev. Stat., §§ 2,10.

On behalf of the state, it is contended that the object in •enacting that the judge shall appoint some person to act in the place of the clerk, auditor, or recorder, in selecting the names of persons for jurors, if such officer be absent or disqualified, was to provide for those counties in which one or more of those officers may have no deputy. But we think the object of the legislature was more comprehensive-than that. No provision is made for the disability of a deputy. Suppose the clerk is absent from the county, but disinterested, while the deputy is present, but interested in the cause. Perhaps we might assume that, in such case, the deputy is virtually clerk of the court, and hence the disabilities specified in the statute would extend to him. If we should admit this to be true, the more substantial objection remains, that the proper selection of forty names for such purpose involves judgment and discretion and requires a general acquaintance throughout the county. Reputie's, in many instances, are as well qualified in these particulars as their principals; but this is not the general rule. Indeed, according to the principle decided in Warwick v. The State, 25 Ohio St. 21, a minor may be a deputy clerk of any court; and we know that nothing is more common than for a minor to act in that capacity. The same thing is true as to the deputies in the offices of the auditor and recorder. They are chosen for other qualities than ability to make selection of suitable persons, in the various parts of the county, to act as jurors.

We are satisfied that the statute, in providing that the selection of such names shall be made by the clerk, auditor, and recorder, except in case of their absence or disability, designates the persons who are required to perform an act, and does not have reference to the performance of an act by officers, merely as such; and that, in case of the absence or disability of either the clerk, auditor, or recorder, a judge must select a person to act in his place. Consequently, the language of the acts empowering deputies to perform the duties pertaining to the offices of their principals, broad as it is, does not extend to the performance of the duty under consideration here; and it is perfectly clear that the performance of such a duty could not be delegated by one of those persons to another person, in the absence of statutory provision permitting that to be done. 45 N. Y. 785. True, the defendant and his counsel may have known of the defect in question at the time they assisted in striking names from the list; and it is suggested that the objection, if known, should have been made then, or that if the fact was not then known, this should appear in the record. No doubt many mere irregularities in criminal, as well as in civil eases, are waived, if objection is not made as soon as practicable after the irregularity is discovered; but, aside from the question whether the clerk had power to grant relief, even if disposed to do so, we do not think the doctrine of waiver applies to a defect of this character in that posture of the case. On the contrary, the objection could more properly be made in court by challenge to the array. The statute recognizes such right at any time before the jury is impaneled and sworn.” 75 Ohio L. 639, §14; Rev. Stats., § 5175. And, finally, the challenge in this case should have been sustained.

The panel of the struck jury was exhausted before the requisite number was obtained. The statute provides that “if a jury be not made from said sixteen jurors, the sheriff shall, under the direction of the court, fill up the panel from the bystanders,” etc. 75 Ohio L. 642, § 26; Rev. Stats., § 5187. And the statute further'provides that a deputy sheriff “ may do and perform any and all of the duties appertaining to the office of his principal.” 66 Ohio L. 35; 1 S. & 0. 500; 75 Ohio L. 598, § 595; Rev. Stats., §§ 10, 4949. The court ordered "William J. James, a deputy sheriff of the county, to call persons from the bystanders to fill the panel. To this the prisoner objected. The deputy called M. S. Bonnell. The prisoner challenged him for cause, upon the ground that bystanders should be selected and called by Joseph Moses, bailiff of the criminal department of the court, who, .it appeared, was then present in court, able and willing to perform the service,* and it was insisted on behalf of the prisoner that the bailiff alone was authorized to perform that duty. The court refused to sustain the challenge, and the prisoner excepted.

Moses had been appointed and qualified as criminal bailiff, under an act passed in 1879. 76 Ohio L. 54. The act, in its first section, authorizes a judge of the court of common pleas to “ appoint a criminal bailiff for such county, who shall hold his office for the term of two years, and until his successor is appointed and qualified.” And section two provides, among other things, as follows : “ It shall be the duty of such criminal bailiff to act for the sheriff’ in all criminal cases, and matters of a criminal nature, in the common pleas and probate courts of said county. He shall be present during all trials of criminal cases in said courts, under direction of the sheriff, and shall perform all the duties during such trials as are now or may be performed by the sheriff of such counties.”

Under the former constitution, the election of a sheriff was provided for and his term of office fixed. The present constitution does not contain that provision, but it recognizes the existence of the office of sheriff, and, like the former constitution, provides that he shall not be eligible to the office for more than four years in any period of six years. Probably legislative control over the office, while it has an existence, is substantially the same under the present as under the former constitution. The power to take from the office of sheriff a material part of longrecoguized and accustomed duties, create a new office, and confer such duties on its incumbent, so that the latter will have complete power with respect to such duties to the exclusion of the sheriff, may well be doubted. The State ex rel. v. Brunst, 26 Wis. 412; King v. Hunter, 65 N. C. 603; Warner v. The People, 2 Denio, 272; The People ex rel. v. Albertson, 55 N. Y. 50. But we do not understand that this is the effect of the act of 1879. That the practice may be changed, and the powers and duties of the sheriff in some respects increased or diminished, can not be doubted. Indeed, this court has held that this may be done without affecting the liability of his sureties. King v. Nichols, 16 Ohio St. 80. And from 1824 until 1854, the court of common pleas could require the attendance of constables in court and before the grand jury. 2 Chase, 1356; 3 Chase, 1772 ; 4 Curwen, 2590. But this did not detract from the power of the sheriff'. The officers so attending, by direction of the court, were the sheriff’s assistants, and performed services which are now performed by his deputies. The act of 1879 must rest on a similar principle. The criminal bailiff is in effect a deputy sheriff, required to perform important and special services, but he must perform them “ under the direction of the sheriff,” who is not prohibited from performing the same duties at any time when it becomes necessary for him to do so. Nor does the act so affect the power of other deputies of the sheriff that the court may not, as occasion may require, direct them to perform any act which the sheriff himself might perform. Any other construction would lead to serious inconvenience, as the bailiff, in discharging the various duties of his appointment, is often necessarily absent from tbe court. In this case, the bystander may not have been in the immediate presence of the court, and if the bailiff had gone from the court-room, prisoners might have been left without any officer in charge. But how that may have been is immaterial. We are satisfied the court did not transceud its authority in directing deputy sheriff James to perform the duty in question.

Dr. John Davis gave material testimony tending to convict the prisoner. After the jurors had retired to consider of their verdict, they returned into court and requested the judge presiding at the trial to state to them his recollection of Davis’ testimony. To this the prisoner objected-, but the court complied with the request of the jury, and the prisoner excepted. The chapter regulating the trial of civil cases contains a provision authorizing the court, on request of the jury, to “ give its recollection as to the testimony on the point in dispute.” 75 Ohio L. 643, 644, §§ 29, 34; Rev. State., §§ 5190,. 5194. The chapter relating to the trial of criminal cases, contains no corresponding provision. 74 Ohio L. 349, § 33; Rev. Stats., § 7300. But an examination of those chapters does not lead to the conclusion that, in omitting the provision in the latter case, there was any intention to deny to the judge such power.

In stating his recollection of testimony at the request of the jury, of course a judge should observe great caution, as several serious mistakes have been made in that way; but we do not doubt the authority of a judge to comply with such request, nor'can we say that the power was improperly exercised in this case. Of course, it is necessary that the prisoner should be present, unless he absconds during the trial.

We do not find any error in the record, except in overruling the challenge to the array; and for the error in that regard the judgment will be reversed and a new trial awarded.

Judgment reversed.

White, J.,

did not concur in the reversal, being of opinion that the irregularity in making up the list from which the jury was struck by the parties without objection, is not sufficient to warrant a new trial.


author: Johnson, J.

text:
    Moore, Administrator v. Ogden.
    1. A decree of foreclosure of a mortgage was rendered before the code took effect. It found the amount due on the notes of defendant, and ordered a sale of the mortgage premises. Iield, that this was not a judgment, within the meaning of section 422 of the code, and that it did not become dormant, by a failure to issue an order of sale within five years.
    2. The suit for a foreclosure, as between the parties, continued pending for the purposes of execution, as well after as before the decree was rendered, and until the order of sale was executed, or otherwise satisfied, though the case was left off the trial docket after the code took effect, and although no steps were thereafter taken to execute the decree for more than five years.
    3. The right to enforce said decree abated by the death of plaintiff, but it may be revived in the name of his personal representative.
    4. The personal representative may, by petition, have such decree and order of sale revived and enforced in his name.
    Error. Reserved in the District Court of Brown county.
    The action in the court below, was brought December 23, 1866, by the plaintiff, as administrator of one Pelix Coonce. It was founded on a decree of foreclosure of a mortgage, rendered in 1843, in a suit then pending in the common pleas of Brown county, wherein said Pelix Coonce was complainant, and the present defendant was the respondent. The proceeding to foreclose, was founded on the notes and mortgage of the defendant to Coonce. Pelix Coonce died about 1864, and plaintiff' -was appointed his administrator.
    The petition in this case alleges, that the amount found due by said decree, is still due and unpaid, and that the same has become dormant.

      The premises embraced in said mortgage and decree are described, and it is alleged that the defendant was duly served with process, in said proceeding to foreclose.
    The prayer is for a judgment for the amount found due by said decree, with interest thereon from date óf its rendition, for an order of sale of so much of said real estate as would be sufficient to pay the same, and for all proper orders, and judgment in the premises.
    The defendant filed a motion to strike out so much of said petition as related to a sale of the real estate, on the ground that said decree had become dormant by the lapse of five years, without execution-thereon, whereby the lien, created, as is alleged by the decree, was lost.
    This motion was sustained, and the plaintiff excepted.
    Defendant then answered to the action for a personal judgment: 1. Payment; 2. Satisfaction. The plaintiff by reply denied, and, upon a trial upon the issues joined, judgment was rendered for plaintiff for $5,191, the amount found due. The defendant moved for a new trial for the reason that the finding was against the law and the evidence.
    This motion was overruled, and a bill of exceptions tendered by the defendant, which was executed and filed; but as he is not complaining of any error, this part of the record need not be further noticed.
    The plaintiff filed his petition in error in the district court, to reverse the order and judgment of the court below sustaining said motion, and striking out so much of the petition as related to an order of sale of the mortgaged premises.
    On his motion, the case was reserved for decision, here.

      James II. Thompson and D. W. C. Loudon, for plaintiff in error.

      Sly Devore and David Thomas, for defendant in error.
   Johnson, J.

This motion was predicated on the idea that the decree of foreclosure was a judgment, within the meaning of section 422 of the code of practice, which became dormant, if execution was not sued out for five years.

That section 422 of the code does not apply to decrees or judgments for the sale of specific property, but has sole reference to judgments for money, which are to be enforced by execution, was decided in Beaumont v. Renick, 24 Ohio St. 456.

Under the chancery practice, and until the amendment of section 306 of the code, when a decree of foreclosure was made, the suit remained on the court, docket, until the property was sold and the sale confirmed, unless it was otherwise satisfied.

By that amendment, if nothing remained to be done, except to execute the order of sale and distribute the proceeds, the clerk was required to leave the case off the trial docket; and it is therein provided that the subsequent proceedings, in the execution of the order, shall be the same as upon sales of real estate upon execution.

This amendment did not alter the effect of the decree, though the case was left off the trial docket.

The judgment or decree did not become dormant, though five years elapsed without issuing an order of sale. As between the parties the case was still pending. Beaumont v. Renick, 24 Ohio St. 456; Fox v. Reeder, 29 Ohio St. 181; Hunter v. Hopeton, 4 McQueen, 972.

In the last case cited, it was said, in an action commenced in 1845, and defense lodged, and in which proceedings ceased for over eighteen years, that the suit, “ though asleep, continued in pendente till disposed of, and the parties wei'e still at issue, though the lis may have been for years comatose;” and that it was liable to be aroused at the volition of either party.

The court thei’efore erred in holding that said decree became dormant. As that was a fixxal ox’der, preventing a judgment for a sale of the mortgaged premises, the court erred in sustaining the motion; and if this error was to ■his prejudice, the judgment on this motion must be reversed.

Whether that judgment, denying the plaintiff the equitable relief sought, was to his prejudice, should be reversed, depends on another question of some difficulty.

Was he entitled to that relief in this action? By the death of Eelix Coonce, about 1864, the pending suit abated, or rather the right to proceed in the execution of the decree was abated.

By the appointment and qualification of the plaintiff as his administrator, the right to have the decree revived, and have an order to enforce it, vested in him as the personal representative.

Whether this revivor could have been had under section 416 of the code, we need not inquire, as this was not a motion to revive under that section, but an original action for a personal judgment, founded upon the decree, and for an order to enforce the same by a sale of the mortgaged premises, or other proper relief.

After the prayer for an order of sale was stricken out, the case proceeded as an action for a personal judgment.

As the defendant is not complaining of that judgment, the question is: Was the plaintiff entitled to have either a new or second order of sale, or to a revivor of the original order that had abated by the death of Eelix Ooonce ?

1. As to a new or second order of sale. The petition alleges, and for the purposes of this case we must assume that it is true, that the original decree was founded on notes and a mortgage executed by defendants, and that the amount therein found due is still unpaid. The prayer is, that so much of the real estate aforesaid as may be sufficient to pay the same be sold, “ and for all proper order and judgment in the premises.” This is a prayer for general relief, and entitles the plaintiff to proper relief, though he may not be to the specific relief sought. The defendant, in his motion, assumes that the lien on the real estate was created by the decree of its sale. This is an error. The order- of sale was only a mode of enforcing a lien created by the mortgage. That an action of debt would lie upon judgments at law for money, whether domestic or foreign, is settled. Healy v. Roby, 6 Ohio, 521; Tyler v. Winslow, 15 Ohio St. 364; Church v. Cole, 1 Hill, 645 ; Clark v. Goodwin, 14 Mass. 236.

The same is true, in Ohio at least, of decrees in chancery for the payment of money. Moore v. Adie, 18 Ohio, 430 ; Moore v. Stark, 1 Ohio St. 374.

It follows, therefore, that, had the plaintiff brought his action for a personal judgment only, omitting the prayer for equitable relief, he would have been entitled to recover. By the death of Eelix Coonce, the right to enforce the original order of sale abated. Had he lived, the original suit would have continued, and a new action by him, to obtain a second order, could not have been sustained, for the obvious reason that the first order was in a pending suit, on which he could issue at any time.

2. As to a revivor of the original decree. Under the former practice in chancery, the right to enforce the decree, which abated by the death of Coonce, could have been enforced by a bill of revivor. That the plaintiff could, under the code, revive this decree by an original action for that purpose alone, and obtain an order in his name for its "enforcement, as fully as could formerly be done by a bill of revivor, we entertain no doubt. But can these two actions — the one for a personal judgment founded on the original decree, and the other for a revivor of that decree and an order of sale — be joined? No objection was interposed, on the ground of a misjoinder of causes of action, other than may be implied by the motion. If there was such misjoinder, it appeared upon the face of the petition, and should have been taken advantage of by demurrer, or by motion to compel plaintiff to elect. This would have given the plaintiff the right to elect, in case the court sustained the motion or demurrer. This election he was deprived of by the action of the court. I am of the opinion that these two causes .of action may b.e properly joined. They are both ex contractu in their nature, and each affects the defendant only.

The act supplementary to the code (S. & S. 575) provides “ that, in all actions for the foreclosure of mortgages given to secure the payment of money, or in which a specific lien for money claimed to be due is sought to be enforced, the plaintiff may also ask in his petition for a judgment in money claimed to be due.” The right to this double relief is not confined to actions to foreclose mortgages, but extends to all actions in which a specific lien for money is sought to be enforced. That provision includes the case at bar. Rut whether this is so or not, we are all agreed that the plaintiff was entitled to the equitable relief sought, and that, as he was not put to his election, error to his prejudice intervened. W hether he was entitled also to a personal judgment, under the act above cited, and whether that judgment be erroneous, are questions it is unnecessary for us to determine, as the party prejudiced thereby, if that be erroneous, does not complain. It is sufficient for this case, to say that the petition stated facts sufficient to entitle the plaintiff to a judgment of revivor, and an order in his name for the sale of the mortgaged premises, for the amount due on the original decree, with interest thereon and costs.

The judgment of the court of common pleas, sustaining said motion is reversed, and cause remanded to that court for such further proceedings in the action as are warranted by law.