author: Judge Lane

text:
    *Doe, Lessee or Foster et al. v. Executors of Thomas Dugan.
    Irregularities m proceedings for partition do not aifeet titles conveyed by the sheriff, acting under the order of the court, as commissioner to make deed of partition.
    Entries made on the margin of the record book, by the recorder, not part of the original papers, do not affect the title.
    This was an action of ejectment, reserved in the county of Hamilton.
    The facts were presented -in an agreed case.
    The plaintiffs seek to recover an undivided half of lot 3STo. 92, in Cincinnati. In 1805, William Woodward was the proprietor, in his own right, of three undivided eighths of the lot, together with an out-lot, and held one undivided eighth in right of his wife. The remaining four-eighths were respectively owned by Seth Cutter, Abigail Pillsbury (wife of Silas Pillsbury), Mary Cutter, and Hephzibah Poster (wife of Samuel Poster). In August term of the'common pleas of Hamilton county, a petition for partition was filed, as follows :
    “ The petition of the subscribers respectfully showeth, that John Cutter, late of Cincinnati, died seized of a certain in-lot, No. 92, containing se.venty-two perches; and one out-lot, No. 20, containing four acres, situate in the town of Cincinnati, held by purchase from and under the proprietors of the town; in which lots, William Woodward is entitled to three-eighth parts; Abigail, wife of said William, of one-eighth part; Hephzibah Poster and Seth Cutter, both of the town of Cincinnati, are each entitled to one-eighth part; Abigail Pillsby and Mary Cutter, both of Massachusetts, áre • entitled to one-eighth part; for which petitioners ask partition, etc,
    “William Woodward,
    Abigail Woodward,
    Samuel Poster,
    Hehpzibah Poster,
    Samuel Poster, Att’y for Mary Gutter.”
    On the journal of August 14th is entered, “The petition of Woodward, Poster, etc., for partition, to be advertised three weeks in the papers, as the law directs.”

      The record shows, that in December, 1805, an order for partition was issued to the sheriff, which was returned,- with a report by the commissioners, showing that they were sworn; that in their opinion the land could not be divided without injury; and that *they appraised the in-lot at seven hundred dollars and the out-lot at one hundred dollars. The court thereupon accepted the report, and allowed William Woodward and Samuel Foster to take the property jointly between them at the valuation.
    On September 12,1806, a deed was made by William McFarland, sheriff of Hamilton county, which was recorded December 5,1806, which, after reciting the original title, the petition, proceedings, and return, continues, “And the said Samuel Foster, being lawfully seized of one-eighth part or share of said two lots, by intermarriage with Hephzibah Cutter, daughter of the above-named John Cutter, did take and purchase the shares of Seth Cutter, Abigail Cutter, and Mary Cutter, being three shares of one-eighth part of said lots, each, for the proportion of the valuation of said lots, as returned, etc.; therefore, for the consideration of three hundred dollars, paid and secured to the satisfaction of three of the above-named’’ heirs of John Cutter, etc., proceeds to convey “one equal undivided half.” The acknowledgment of this deed, which was made on November 6, 1806, professes to be by William McFarland, late sheriff, etc. On the margin of the record of this deed the recorder entered the following memorandum: “This deed was drawn by the recorder, and executed in his presence by the sheriff. It was left in the office of the sheriff, subject to some arrangements with the grantee, but not delivered to him afterward; by an error entered on record, by the recorder, J. W. Browne.”
    It was shown, by proof, that Abigail Cutter, one of the heirs of John Cutter, was married to Silas Pillsbury, at the time of filing the petition, and that Hephzibah Foster was living at the time of filing, but died before any proceedings.
    Y. Worthington, for plaintiffs:
    The case made authorizes a recovery for the plaintiff’s lessors, unless they are precluded from asserting title to the premises claimed in consequence of the proceedings in partition offered by the defendants; and that they are not precluded is apparent for the following reasons: 1. Neither Hephzibah Foster nor her children were parties to the suit, while pending, under which it is alleged the partition was made. 2. The proceedings in partition have not been perfected so as to divest the legal title. 3. Admitting the proceedings in partition can not now be Impeached collaterally, so far as they go, yet they do not pass the estate Samuel Foster held by courtesy, in right of his wife, from her or her *heirs. 4. The election made by Samuel Foster in right of his wife, and his possession under that election, inures, not to his own right, but to the right of his wife or those claiming under her, notwithstanding there has not been an order for a deed nor one executed.
    1. Neither Mrs. Foster, nor her heirs, were parties to the suit while pending, under which it is alleged the partition was made, and through which the defendants deduce their title. Upon this point we understand the facts to be, that Mrs. Foster, with her husband, in August, 1805, signed the petition. In the August term, 1805, of Hamilton common pleas, it was filed; no service being had, publication was ordered for three weeks. There is no evidence that such publication was made. Neither the record, minutes, nor original papers on file, show when publication was made, or that it was made at all. We are aware that a record imports absolute verity and can not be impeached collaterally, 1 Chit. PI. 262; 3 Thomas’ Coke, 323. But this rule is applicable only to that which appears of record. 1 Ld. Baym, 151. And our own courts now hold, 7 Ohio, 258, where a material fact is shown to have existed by the papers on file, or entries on the minutes, the omission of the clerk to include such fact in the record, can not prejudice any one further than to put him to the inconvenience of hunting up the proofs. So that, that which does not appear of record, is nevertheless admissible to aid it, if it appear from the minutes of the court, or from the filed papers, and not otherwise. Taking, then, this rule for óur guide, we claim from the testimony in the cause, that Mrs. Hcphzibah Foster died before the partition suit was pending, or in legal contemplation had a beginning; and having so died, the subsequent institution and continuance of the suit in her name in part, without making her heirs parties thereto, can not make that suit obligatory on them, or estop them from asserting title against it. In Ohio, a suit is not begun or pending till service of process or publication perfected for the full time. 3 Ohio, 541; 5 Ohio, 462. Had the suit been pending at the time of Mrs. Foster’s death, then her death would have abated the suit; but in order to constitute an abate-merit, the suit must be pending and the death ensue or happen prior to judgment. 1 Paine, 483. For present purposes we may concede that the death of a party to a suit pending, does not vitiate the subsequent proceedings so as to avoid them absolutely; but they are avoidable, and will be reversed on a writ of error. 4 Cowen, 458; 10 *Mass. 5; 5 Day, 527; Croke Eliz. 106, 199; 2 Tidd’s Prac. 1225, 1191; 3 Salk. 145; 2 Selw. Prae. 399. Yet we'elaim the consequences are wholly different where a death happens before the suit is pending. There can be no such thing as an abatement of a suit until it has existed. The death of a party named in any judicial proceedings before they are instituted, wholly impairs their effect and operation against the decedent; and what might be done in such a case would be res inter alios acta, and not obligatory.
    2. In the next place, we claim the proceedings in partition have not been perfected so as to pass the legal title. The proceedings in this case were not in chancery, but under the act to provide for the partition of real estates of 1804, according to the test established by this court in Doane v. Fleming et al., Wright’s C. C. 168. Independent of that test, we maintain that our courts, in 1805, had no chancery powers in matters of partition. The constitution of Ohio declares that the judiciary shall have such common law and chancery powers as shall be given from time to time by statute. Const, of Ohio, art. 3, secs. 2, 3. The act of 1804 (1 Chase’s Stat. 404, sec. 9) repeals all laws and parts of laws for the partition of real estate, in force at the time of the passage of that act; and of course there could be no mode of aparting estates held in common except in pais, or under the statute. Considering this proposition as established, at least so far as the present controversy is concerned, we maintain the court had no power to act, and its action upon the case made is a nullity, becuuse the case does not show that the essential requisites of the law were complied with.- The law required the petition to set forth (1 Chase’s Stat. 402, sec. 2) the name and place of residence of each co-tenant with the demandant, if known. It is also an established principle, that during coverture, the husband is seized of th'e lands of the wife in her right, and must be joined with her in all actions relative to the same. In this ease, Silas Pillsbury, and Abigail, his wife, were co-tenants, but not parties to the partition ; nor is it averred they were unknown to the demandants. .It is true Abigail Pilsby is said to be co-tenant, but that does not cure the omission or meet the demands and objects of the law; because Abigail Pillsbury, the wife of Silas, was the co-tenant, and not Abigail Pilsby, the person named in the petition. We suppose the legislature designed something by the provisions of this act; and a compliance with these provisions to be essential, before any one interested, *could be divested of his rights. Private property, by
    the laws of Ohio, is held inviolate, subservient only to the public welfare upon compensation made in money, Const, of Ohio, sec. 4, art. 8, and the transfer of individual property can not be accomplished except by consent, or in consequence of the violation or omission of some duty made obligatory by the law, 7 Ohio, 221; and only in the modes known to the law. The requisites.of the partition law are as essential to the transmission of the legal title as the requisites of the law relative to the execution of deeds, and must, in each case, be as fully met and complied with. Any other determination would be derogatory to our jurisprudence and a practical commentary upon the frailty of man. Nodes of conveyance, whether in pais or byjudicial sanctions, are but matters of form, and must be pursued, or the whole will be an idle ceremony. No deed is valid in Ohio to pass the legal title unless attested by two witnesses. Why? Because the law requires it. So in a partition, the law requires the co-tenants to be named, and, if not named, the proceedings are insufficient to pass the legal title, because the law has not been fulfilled. The law also demanded forty days’ notice to be given, by personal service or publication, before the next ensuing term. In this case the record shows no service, and none can be presumed against the record, minutes, and original files in the cause, as they import absolute verity. Section 3 of the partition act, 1 Chase’s Stat. 403, authorizes the court to act upon a petition framed according to the provisions of section 2, upon due notice given. These requisites not being complied with, the action of the court was coram non judice, and void. Its power to act under the partition law was special, and to be exercised only in the case given. It is no answer to say the court had jurisdiction of the subject matter, and its decision was subject to revision. The partition act does not provide for the revision of the judgments of the court by error or otherwise, 1 Chase’s Stat. 402; nor do the general laws in relation to writs of error and appeals. Wright’s C. C. 168; 29 Ohio Stat. 79, sec. 108; 1 Chase’s Stat. 356, sec. 5 ; lb. 413, sec. 3, 7. So this court have repeatedly held in relation to appeals. Wright’s C. C. 168. And the statutes, it will be found, in relation to this matter, are the same as to appeals, writs of error, and certiorari.

    But again, where the property can not be divided, and is appraised, one or more of the parties may elect to take the same at *the appraisement. (This is the right of each co-tenant, and how can it be exercised unless each and all are made parties?) And when so elected, the same shall be adjudged to him or them, and the sheriff shall, according to the order of court, make and execute conveyances to the party or parties electing to take the same. 1 Chase’s Stat. 403, sec. 5. As we understand and construe this statute, it is necessary for the court, after an election is made, to adjudge the property to the party electing to take the same, and order the sheriff to convey the same to him by deed. In truth, there must be a final decretal order, substantially fulfilling the provisions of the law. So it is held in Massachusetts, 7 Pick. 215, under their partition laws; and no good reason can be assigned why it should not be necessary here, more especially as the law seems to demand it.
    In this case there was a confirmation of the election, but no order to the sheriff to execute the deed, and, in fact, none has ever been executed by the sheriff. The deed offered in evidence was not executed by the sheriff, but by the late sheriff. The fact that the sheriff in office did not execute a deed, coupled with the other fact that no order for a deed appears of record, is conclusive that no such order was made. Indeed, as the record is silent upon such order, it is conclusive none was made. 3 Ohio, 577; 4 Ib. 129; 5 Ib. 447 ; 6 Ib. 11. Without such an order, it is manifest no deed could be made to pass the legal title. 5 Ohio, 447 ; 7 lb. 11, 264; 1 lb. 278. No legal estate in lands can be transmitted except by deed duly executed according to the statute; for the transmission of lands by descent, devise, or deed is regulated exclusively by our own statutes. 7 Ohio, 275. In this case the law required the deed to be executed under an order of court by the sheriff, and acknowledged in open court, 1 Chase’s Stat. 404, sec. 5; and not by a late or prospective sheriff, and acknowledged out of court, as the deed offered actually was. We are aware that deeds under executions at law were to be acknowledged, as in other cases, because the law so directed, 3 Ohio Stat. 74; 1 Chase’s Stat. 317, 460; and that where a levy was made, or a writ had begun to be executed, the officer beginning it must complete it, because the writ was an entirety. This is the common law doctrine, and was the practice in Ohio up to the taking effect of the act of February 25, 1824, which altered the law in this respect. 22 Ohio Stat. 201, sec. 8; 1 Ohio, 465, 466; 2 Ib. 290; 4 Ib. 56; 2 Saund. 101; Oroke Eliz. 397. But it is apprehended that the law in *relation to executions does not furnish the rule of action in cases of partition; on the contrary, we suppose a case of partition under a statute, is to be governed' exclusively by the provisions of the act authorizing the thing to be done. The tenure by which real property is held, is too important, and its stability of too much moment to mankind, to be subjected to so much flexibility and uncertainty. The laws regulating judgments and executions constitute one system, and the laws regulating partitions of lands another. Each forms a separate legal department, to be governed by rules applicable to its own class, and not by rules applicable to each other. In this case, the law required the deed to be executed' by the sheriff, that is, the sheriff in office at the time the deed is executed. Where no one elects, the court may direct the sheriff who held the inquest, or his successor, to sell, etc. Chase’s Stat 404, sec. 5. This difference in phraseology in the same section of the same act, in reference to different objects, clearly demonstrates to my mind, that the legislature intended, in the one case, the order to be executed by the sheriff in office, but left the other to the entire direction of the court.
    But again, is the deed now offered duly executed? The statute authorizes the sheriff to execute conveyance under orders of court, but is silent as to the mode of execution or acknowledgment. When a sale is made by a sheriff, the deed is to be acknowledged in open court, and we maintain it must be so acknowledged, under an election of one or more of the parties. The statute is competent to the ends designed, and furnishes all the requisites essential to a partition, or the transmission of the title to the party electing to take, or purchasing, in case partition can not be made, and does not invoke or require the aid of any other act, general or special. Its provisions alone must be pursued. What the act does require, must be done to perfect the title; and what it does not require, if done, gives no aid to the title. But waiving all this, we may still ask, is the deed duly executed? From the acknowledgment certified, it seems Williams McFarland, late sheriff,\ acknowledged the deed to be his act, and not his official act, as sheriff. Should it not appear, admitting a late sheriff aun execute a partition deed in a case like this, that what was done by Mr. McFarland, was done ex virtute officii, as sheriff, and not in his own right, and as his own act. We think so, and believe we are sustained by the ease in Ohio, 390. Though the deed be duly executed, still it is claimed the evidence adduced does not establish the delivery of the deed. The record *of a deed per se, we admit, has been held by this court as prima facie establishing a delivery; but such a record we maintain is a fair bona fide record, made in good faith, without error, accident, or mistake. '
    The evidence before the court, if competent, goes to show the deed was not delivered to Browne for record, but as on escrow to be delivered upon a future event, and that it'got on record by an error of the recorder. We are aware that the testimony adduced to establish these facts, will be held by our adversaries to be incompetent. We maintain it to be, if competent, ex necessitate rei. The deed having been recorded erroneously, it was proper for the recorder to state the fact upon the record and not mutilate his book. Such a certificate, or statement, is within the scope of an officer’s power and is proper, and on his death would be evidence of the faut, precisely as a notary’s entries after his death are evidence. They are official acts done under the sanctity of an oath, and entitled to some weight. The recorder states upon the record: “This deed is recorded through my error; it was not delivered to me for record, and should not have been recorded.” The deed had improperly got upon the record, and could not be got off. The new mode of “ expunging ” an entry upon a record book was not then in vogue. The star of Missouri had not then arisen above the horizon to shed abroad this new light of glory; and the recorder, poor ignorant man, knew no other way to remedy his blunder than to confess it, and brand it as spurious. This we consider he effectually did by the indorsement on the record, which, we claim, he was empowered to make by virtue of his office.
    3. Though the proceedings in partition can not be impeached collaterally, yet they do not pass the estate that Samuel Foster held by courtesy in right of his wife, from her or her heirs. The proceedings show that Woodward held three eighths in his own. right, one eighth in right of his wife, and that Samuel Foster’s wife held one eighth. Woodward and Foster elect to take, the property is adjudged to them, and a deed made subject to the liens in favor of the others of said parties. The right and ability of Foster to elect is in virtue of his wife’s estate. His election, then, with the order of court and deed of the sheriff, must bo held, in order to make the defense available, not only to transmit to Samuel Foster, the tenant by courtesy, the estates of “ the others of said parties,” but also to take from his wife, her estate — the very property, in right of which alone he could make an election. *We can -not, for one moment, sanction such a proposition. On the contrary, we maintain whatever may be the effect of the partition proceedings, on the other rights, it can not disturb or affect the right of the wife of Samuel Foster. The party electing to take under the partition proceedings does not go into the possession as to his original right. He is already in the possession of that under .a claim of title, and as to it the partition has no practical operation ; but as to the other rights, the rights of the co-tenants, the partition proceedings do operate to transfer the'title, estate, and possession. A tenant in common obtains a release from his co-tenants. Ho is in his original right under one claim of title, and in the purchased rights under another. The estates become consolidated by operation of the parties in pais, in the one case, and through the intervention of a court in the other. They are only different modes to obtain the same result. If we do understand the doctrine of tenures, and can compass the complex nature of estates, this must be the operation and effect of either mode of conveyance. It certainly would be the case, was the estate of a feme covert not concerned. Had Samuel Foster held the one-eighth in his own right, instead of his wife, could there have been any question upon this subject? Who would have said he held his original right that brought him into the partition under it? No one. It would be a solecism to say so, a perfect perversion of language, and a total misconception of the doctrine of tenures and estates. Suppose a judgment debtor, at sheriff’s sale, should purchase his own property, would he acquire a new estate by the purchase ? Surely not. The sheriff’s sale is' not even a betterment to his title. It would be nothing more than a receipt for his debt. 5 Ohio, 239. Does the action of the court, on a partition case, vary the result? It is not pretended it does, where partition can be made by metes and bounds, nor where an election is made as to the original right of the party electing. How then, we ask, can the result be varied where a husband in possession in the right of his wife, and her right is the foundation of his action, elects to take the land at valuation ? We maintain that the result is not varied. The operation of the partition was not to transfer from the wife her rights to her husband, or, in the least, change or disturb the tenure by which the interest of the wife was held. The statute does not contemplate such a change, and our notion of the law, and abstract justice, will not permit us to tolerate such a position. We therefore claim that Mrs. Foster’s title to the undivided one-eighth was not changed by the partition. *We claim more, the election of her husband inured to her benefit, and this leads us to consider our fourth and last proposition.
    4. The election made by Samuel Foster in right of his wife, and his possession under that election, inure not to his own right, but to the right of his wife and those claiming under her. Under the statute the parties in interest have the right to elect. Samuel Foster, by courtesy, held a freehold interest in Kis wife’s undivided eighth, which gave him a right to take under the statute, not in his own right, but in that of his wife. The proceedings show the fact as to his interest and rights, and the action of the court shows that he was not entitled to the legal conveyance; because the court only affirm the election, and leave the matter as to the transmission of the title by deed, under an order of court, for future determination. Foster took possession, we say, in the right of his wife (this we claim to be established by the proceedings in partition, and his deed from the late sheriff). There the matter rested — no order for a deed was asked — a discontinuance ensued, and the case was. never again brought before the court. We do not claim to have the paper legal title to the ihreeeighths under the partition, but we claim that the possession and election under it, was the possession of Mrs. Foster, under whom the lessors of the plaintiff deduce title; and, upon that possession, they can maintain an ejectment against those who deduce title from Samuel Foster, who held the possession and freehold by courtesy, in the right of his wife. In Massachusetts (15 Mass. 294), it is held that an assignment upon a partition of the wife’s property to the husband, must be taken to be in the right of his wife; and, by the same reasoning, an election by the husband, in virtue of his wife’s interest, must be construed to be in her right, and to inure in her benefit. In Pennsylvania, (1 Serg. & Rawl. 460), it is held that an election of the husband, in right of his wife, inures to his wife. It can not be otherwise, because the right to elect is founded upon the wife’s right; and the election of the husband, the legal organ of the wife, when made, attaches to her original interest, and does not pass the property elected to the husband, and also draw from the wife and her heirs her right, because the law does not authorize or contemplate such a state of case; and Mrs. Foster, when she signed the petition for partition, can not be presumed to have sanetioned any other appropriation of her rights than was necessary to meet the exigencies of the partition law. She applied for a. partition, not to have her title taken from her and her heirs, and. ^transferred to her husband and his heirs, but to have that set off to her in severalty which she then held in common. It is true the application for partition involved in it, by possibility, a divesture of her title by a sale or an election under an adversary right; but it never involved, and could not, a divesture of title under an election predicated upon her own claim, title, and estate. Such a thing could not be. It would be an impossibility. You might as well say an object could be moved by a lever when it rested upon the object to be moved as a fulcrum. It can not be. From the very nature of things it is impossible; and if my recollections are not in fault, the law never- works or exacts impossibilities. We therefore maintain under this last aspect of the case, that in no event can the partition proceedings operate to defeat our right to recover the original right of Mrs. Foster; and we also maintain that, against those who claim under Samuel Foster, we have a right to recover the three-eighths taken possession of by him, under the partition in the right of his wife. It is no objection that the legal paper title is not in us, for it is the well-settled doctrine of this court, that a recovery may be had in ejectment, upon a prior possession alone, under a claim of title. 6 Ohio, 165; 7 Ohio, 146; 3 Ohio, 59, 254. The defendants can not object to our recovery, because they are purchasers from and under Samuel Foster, and have full notice, constructively, at least, of the nature and extent of his title and possession, because they deduce the title through his deed from the sheriff and the partition proceedings, and are chargeable with notice of all they contain. 5 Ohio, 454; 6 Ohio, 240 ; 7 Ohio, 228. We admit, by the laws of Ohio, that Samuel Foster was entitled, by courtesy, to a life estate in the lands, of which his wife was actually or legally seized during coverture, they having had children born alive during that time, 4 Ohio, 170; and that a deed by him of the lands held in courtesy, though in fee, passes only his life estate, and after his death, his wife, if living, or her heirs or legal assigns, take or resume the estate in possession. 2 Wend. 362; 2 Ves. 483; 7 East, 321; 9 Mass. 508; 15 Mass. 472; 20 Johns. 301, 303; 10 Johns. 435 ; 16 Johns. 110; 6 Ohio, 313. It is also well settled, that during the tenancy, by courtesy, the statute of limitations does not run against the heir. 2 Wend. 368; 5 Cowen, 74. So that no objection can arise from the length of the adversary possession. Independent of this, no objection could arise, inasmuch as Mrs. Foster’s heirs were minors at her death, and so continued until *within ten years before suit brought. But it may be further contended that the heirs of Mrs. Foster, under whom the lessors claim title, are bound by the warranty of their father, Samuel Foster, who conveyed with covenants of seizin and warranty, and thereby they are estopped to assert title. In answer, we say that this is a collateral warranty, and not obligatory beyond the amount of the estate descending from the warranting ancestor. 5 Bac. Abr. 443, title Warranty, let. I; 4 Cruise’s Dig. 436. The proof does not disclose that anything descended from Samuel Foster to his children. In fact he died insolvent.
    Fox, for defendants :
    It is claimed that this judgment in partition, followed up by a deed conveying the premises, completely vested the estate in Woodward, and Foster, the persons who, by the judgment of the court, were permitted to take the property.
    It will be perceived, by reference to the law in force at the time this proceeding in partition was had (1 Chase’s Stat. 402), that the provisions of the law were complied with.
    But it is said, that in consequence of the death of Hephzibah Foster, after the cotnmencement of the suit, and before judgment, the subsequent proceedings, as to her share, are void. Such is not the law, as we understand it. The death of a party to a suit, before judgment, does not, by the principles of the common law, render .the judgment'void. 2 Tidd’s Prac. 1056 ; 3 Dal. 117-121.
    The judgment was erroneous, but not void. And the statute of 17 Car. 2, c. 8, provides that death shall not even be cause of error if judgment is rendered within two terms after verdict. 2 Tidd, 847, 848 ; 7 Term, 31; Mitchell v. Starbuck et al., 10 Mass. 5; 1 Salk. 9; 3 Com. Dig. 569, Error, D; 2 Com. Dig. 53, Bail, secs. 2-5. Partition on petition by the husband, the wife not being a party, is valid. 2 Rawle, 137.
    The present plaintiffs are privies in estate to Mrs. Poster, they are claiming under her and her heirs, and it is well settled that he can- not object to the irregularity or errors in the proceeding to which his ancestor was a party, except by way of writ of error. The distinction appears to be this: A stranger to a judgment may invalidate it in a collateral suit, by showing that the person against whom it was passed was dead at the time, but a party or privy can, in no case, allege it to be void. This doctrine is fully examined and sustained in the case in 4 Cowen, 458, 459. *It is insisted by the plaintiffs that the deed from Maefarland, the sheriff, to Samuel Poster, one of the persons, authorized to take the premises, ought not to be considered as vesting any estate, because they say that the recorder has made a memorandum on the margin of the record, that the deed was left in the office, subject to some arrangements with the grantee, but never delivered to him afterward. We can not see how this can affect the matter. When this memorandum was made is not stated, nor can it now be ascertained. One thing is certain, the deed was executed, delivered, and recorded, and when it is once admitted to record, we say the recorder’s power over it is at an end. He has .discharged his duty, and he can not destroy the effect of the registry, by anything he can say, or write, unless it is by evidence given under oath. The recorder’s duty is to record all deeds duly executed and acknowledged, when left for record, and none others. If he recorded this deed without authority he violated his duty, and can he be permitted to say that he had so violated his duty? I should deny the competency of the recorder even to testify to his own breach of duty. If he could violate his official oath, what reliance could be placed on a subsequent oath of his?
    But there is no oath offered to defeat the operation of this deed, and is it to be tolerated that a recorder can, after he has once recorded a deed, at any length of time, write a memorandum on the record, which shall destroy the title of the grantee? No confidence can be placed upon the truth of the records, if such memorandums are to be permitted.
    Suppose a deed is made and recorded by the recorder the same •day; on the succeeding day a person purchases of the grantee; he examines the records of deeds, finds the title apparently correct and purchases and receives his deed, can it be tolerated for a moment to permit the recorder afterward to write on the margin that the deed was recorded by mistake, and thus defeat the title •of the second purchaser? Most clearly not. It is well settled that the mistake of the recorder in recording the deed will not ■affect a subsequent purchaser. 18 Johns. 563. Every one has a right to suppose the recorder has done his duty.
    In the present case the deed from the sheriff to Foster was recorded on December 5, 1806, and on August 30, 1808, Foster and wife, and Woodward and wife, deeded ttisx whole of the lot 92 to Hugh McClelland. Now, as before remarked, there is no evidence as to the time when this ^memorandum was made on the record. It can not now be told whether it was before or after the making of the deed from Foster and others to McClelland. I take it to be incumbent on the plaintiffs to prove when that ■memorandum was made, so as to charge McClelland with notice ■of the mistake.
    But suppose any mistake was originally made, can it be possible, .at this late day, that this court will not presume the arrangement spoken of in the memorandum, was not fully and satisfactorily completed, rather than to suppose Samuel Foster, the father of "the present lessors, undertook to sell and deed property to which he had no title? It appears to me the charity of the law would tend to support rather than destroy the title.
    I contend that if no deed could be found from the sheriff, at this late day, the court would be bound to raise the presumption, after so long a possession and claim of ownership, that the sheriff had made a deed agreeably to the requisition of the statute. The court will always presume the due execution and delivery of a deed, after so long a period, where the possession and claim of •ownership is consistent with such a presumption.
    And we claim that this presumption must be made in favor of "Woodward’s title. There is no deed to be found from Macfarland. to Woodward. But it appears that the sheriff was directed to make a deed to Woodward and Foster. He has made a deed to-Foster for his half; Woodward took possession of his part; sold it out with Foster, in 1808, and those claiming under him have been in possession ever since. Is it not a fair case to presume a grant, under these circumstances? 1 Ohio, 349; 7 Wheat. 546, 110; 6 East, 215.
    But as to the half, claimed under the deed from Woodward and Foster to McClelland, it is not material whether the court presume a deed or not, because we show by the deed to Woodward from Isaac Witherby and Hannah his wife, William Dixon and Rachel his wife, and Martha Gardner, dated November 20. 1804, executed in Massachusetts, that the legal title of these three heirs of John Cutter, and three of the grantees named in Symmes’ deed, was vested in Woodward and his wife, having one eighth; one-h^lf of the whole lot was, by virtue of the deed to McClelland, in him. The deed was executed in 1804, and was a valid deed to possess the estate under the laws of Massachusetts, and should it be necessary, for the court to satisfy itself of this fact, I will refer them to the law of Massachusetts then in force. 1 Mass. L. 112. *By this law it is provided, “ that deeds signed and sealed by the party, and acknowledged before a justice of the peace, and recorded at length, shall be valid to pass the title without any other act or ceremony; and no bargain, sale, mortgage, etc., shall be good against any other person or persona but the grantors and their heirs only, unless the deed or deeds be acknowledged and recorded in manner aforesaid.”
    Under this law it has been held that a deed executed by husband and wife, and acknowledged and registered, is good against a feme covert. 7 Mass. 14; 8 Pick. 533.
    That such deed is sufficiently acknowledged by the husband alone; that one of the parties acknowledging a deed gives it sufficient notoriety, and such deed, when admitted to record,, is binding upon all. 3 Mass. 579; 9 Ib. 211; 6 Pick. 87; 8 Ib. 536.
    And it is also held that such a deed is good without any acknowledgment as between the parties -to the deed. 5 Mass. 454, 459, 463; 6 Ib. 30, 489; 9 Ib. 211.
    If, then, this deed was duly executed according to the laws of Massachusetts, it was under the law of January 20,1802, valid and obligatory in Ohio. 3 Ohio, 114

      It appears perfectly immaterial, therefore, whether the court do or do not presume a deed made to Woodward, inasmuch as we show a clear title to his one-half, independent of any such deed.
    N. Wright, in reply :
    The counsel for the plaintiff contends that the proceedings in partition were not pending at the death of Hephzibah Foster, because it does not appear that publication had boon made at her death. As to this fact, were it necessary we should insist that the publication was made before her death. The order for publication was made August 14th — her death was in September or October — of course can not be assumed as proved earlier than October. Every presumption is to be made to sustain legal proceedings after so long possession; and on the case as it stands, therefore, the publication was before her death. But this is immaterial. Hephzibah was a petitioner. As to her, the suit was pending from the time of the petition filed — certainly from the time of the order of court thereon, of August 14. Publication or service of notice had no reference to her, for she was already ^before the court. The cases relating to the time at which defendants became parties to the suit, or in other words at which they are to be considered so far before the court that the suit operates as lis pendens against them and their interests, are not ap* plicable to the present case.
    Several special exceptions are taken to the form of the proceedings in partition, in reply to which it is sufficient to refer, without citing them, to the various decisions of this court in such cases. After an order has been made, the court has nothing to do, in a ■collateral inquiry, with the informalities and errors connected with the order. We refer also to Yoorhees v. Bank United States, 10 Pet. 474, where the same doctrines were fully sustained.
    If Mrs. Pillsbury was married when the petition was filed, so far from rendering the judgment void, even as agáinst her, it is a question whether it must not have been plead in abatement, and could be even cause of error. 1 Chit. Pl. 437, 449; 3 Bos. & P. 128. In Pennsylvania they hold that the partition is valid, and binds the wife as to her lands, as though her husband only be party (2 Rawle, 137), and this on common law principles.

      But suppose Mrs. Pillsbury was not bound, only she, or thoserclaiming her interest under her, could controvert these proceedings. Those who were duly parties to the proceedings are bound,., and have nothing to do with other interests than their own.
    That publication was made and duly proved is of course to be-inferred, from the fact that partition was ordered. 10 Pet. 472, and cases cited in Glover’s Lessee v. Ruffin, 6 Ohio, 264.
    The facts on which a judgment is founded are not a necessary-part of the record; and especially in relation to proof of publication, it is well known that the mode of proof, common in practice, was to exhibit to court the file of newspapers. The-same answer is also applicable to this point, viz: that it does not affect the interest of the plaintiffs, but of another party to the partition only.
    It is said, also, there is no order for a deed. The order in the-case, though not technically formal, is an adjudication of the property to Woodward and Foster. This is clear. ‘-The court-accept the report, and allow Foster and Woodward to take the-property jointly between them at the valuation.” This is the-adjudication required by the statute, section 5, and on this adjudication *the law directs that the sheriff execute a deed. It is not required that the order shall especially direct the sheriff to-make a deed, for it is made his duty so to do on the general-adjudication.
    As to the question of a deed by the late sheriff, we differ on the fact. The deed purports to be made by the acting sheriff. The-acknowledgment speaks of him as late sheriff. The deed is dated-September 12, 1806, and acknowledged November 26, 1806. Between these two dates the ordinai-y term of a sheriff’s office may expire. The utmost that would be inferred from the deed is, that it was made by the sheriff in office, and acknowledged after his term-expired ; and such acknowledgment is regular. 1 Ohio, 317; 6: Bin. 254.
    The statute did not require such deed to be acknowledged in-court. Such acknowledgment was required, at that time, in no case-except a sale on partition proceedings. There was some reason for it in that case, not applicable to this. In case of sale, objections to the regularity or fairness of the sale might arise, which ought to come before the court. It-is sufficient, however, for us, that the-statute requires it in one case, and does not in the other.

      On the effect of the marginal memorandum in the record, we have spoken sufficiently. If any regard can be paid to that memorandum, it can not be doubted that the long-continued and quiet possession under that deed would not only warrant, but require a presumption of a subsequent delivery. The execution of a deed is presumed on much slighter grounds, and surely the delivery should be presumed of a deed shown to be in existence. We are not presumed to have it in possession, as we hold under warranties, and it rests with the plaintiffs to rebut the legal presumption.
    It is contended that the proceedings in partition do not operate to change the title of Hephzibah Poster, so as to vest it in her husband. As to this, it is sufficient to say, that such is the clear adjudication of the court. Poster and Woodward take the property: The deed conveys the half. Whether this was a correct decision of the court, is now a question to be canvassed. This is not a writ of error. This court has sufficiently settled the law, that adjudications of a competent tribunal, however defective or erroneous, are not to be impeached collaterally. 3 Ohio, 561, 562, 257; 4 Ib. 305, 273; 5 lb. 500, 521; 10 Pet. 474.
    *But were this even a case on error, it would probably be sustained. The statute points out who may be-partios to a petition for partition, and the provision is, that any one or more of the parties may elect to take the estate. Any one who is party to the suit, may take the whole. This may be a strong measure ; the whole provisions of the law, for either an election or sale, seem to be strong measures; but not more so in the case of the husband taking the estate of the wife, than in taking the estate of any other tenant in common. Suppose the case of a tenant for life, and remainder-man in fee of one share in common. Both are proper parties to the partition; can there be any doubt that the whole estate might be adjudged to either on election? So in the case of the husband;, his estate is a freehold, even of a higher nature than an ordinary tenant for life. He alone can make a tenant to the principal to bar the entail on a recovery, he can bind her estate in partition, and in other cases. 2 Bin. 10, 23; 1 Thomas’ Coke, 820 (711); Co. Lit. 171, a; 1 Atk. 541.
    We see no reason, therefore, why the estate may not be adjudged to him, as well as to any other of the parties interested in the property. If the wife’s separate estate is to be protected against the disposal or improvidence of her husband there is ample remedy in chancery for all such protection. Neither this court, nor that which directed the partition, have any occasion to regard such considerations.
    It is further insisted, that all the interest which Foster took under the partition, was taken in right of his wife, and therefore the plaintiffs are now entitled to recover the half, and a case in 1 Sergeant & Rawle, 460, is cited.
    If it were material, it could readily be shown, that the statute of Pennsylvania, of April 19, 1794 (Pend. Abr. 235), under which the case in S. & R. arose, is entirely different from ours. That statute gives the election to the child, or children only, and in a particular order, and it is to them only that the property can be adjudged, not any party to the suit, as in our statute. It is evident, under their statute, that the property should not be adjudged to the husband of a child. Yet it does not appear from the above case that such an adjudication would not be held tfalid, when collaterally considered; and after the case of McPhearson v. Cunliff, 11 Serg. & Rawl. 435, it can hardly be doubted that it would. But the case in question shows that the property there taken was taken in right of th'e wife, not intended *to be divested from her, and that the case was considered as an ordinary partition, with something allowed for owelty of partition ; of course, it has no analogy to the case at bar.
    But in addition to'this, it is difficult to conceive on what grounds the heirs of Hophzibah Foster can claim to recover by virtue of the effect of the proceedings in partition. If those proceedings were effectual, they were available for what they purport to be; if not, they left the estate as they found it. It does not even appear that Foster ever had possession in fact; and if he had, all the benefit of it is transferred to us. The judgment of the court is, that Foster take the property, and the deed is accordingly. How that can be construed to mean that some other person shall take it, is difficult to conceive. The effect of these proceedings also is, that Foster takes the particular share of his wife, and the other shares not represented by Woodward. If one co-parcener has his share incumbered, and afterward by election takes the whole, this share remains specifically incumbered as before, and the same principle must apply, if two take the property between them, each having his share incumbered. If, in the present case, Woodward had the three or four shares,-which he held, incumbered before the partition, the incumbrance would remain on his particular part, after the election and deed to him in partition, .and the part of Foster would be clear of that incumbrance. So if the right of Hephzibah Foster was not vested in her husband, but remained to her heirs, that could not affect the title of Woodward to his half, but the share of such heirs must come out of the part assigned to Foster, leaving Woodward his full half. Such is the necessary effect of the adjudication, and such is the purport of all the proceedings in the partition. Hence if we had not shown sufficient presumption of a deed to Woodward, or that no deed to him was requisite, still no crevice would be left open for •a recovery by these plaintiffs.
    By the English common law, before it was altered by statute, we suppose that the warranty of Foster, descending on these plaintiffs, would bar them of this claim. It is a collateral warranty, binding the heir without assets ; said to be a very hard case, but yet one against which even chancery would never relieve. 10 Mod. 3; 3 Thos. Coke, 328, (208.)
    By 4 Ohio Stat., and 5 Ann, c. 16, perhaps such warranty would ■not bind in the present case, though it binds in many cases without assets, notwithstanding that statute. But it would be difficult to show that this statute was the law of Ohio. But we do *not think it necessary to pursue this abstruse doctrine. We prefer to rely upon the simplicity of our own legal titles and judicial proceedings, and upon the great principles in which there can be no hardship and no injustice, so often reiterated by this court, and the other ablest courts of the Union; that judicial proceedings, however informal, are to be held effectual; that those who have relied on the courts of justice for their titles shall not find themselves deluded.
   Judge Lane

delivered the opinion of the court.

The defendants hold the estate of Samuel Foster. If he acquired a fee, by the proceedings in partition, it has passed to the defendants; but if his estate, in the half lot, or in any part of it, was for life only, and at his death passed to the heirs of his wife, the plaintiffs may recover it in this suit.

The mistake of the name of Mrs. Pillsbury, in the petition, and the omission to name her husband, are of no moment in this case. If she should interpose her claim to her original share, other questions may arise. But if these litigants have any right to it,, it must flow through the sheriff’s deed, a common source of title,, which neither is at liberty to contest. 5 Ohio, 197.

The estate which a husband holds in his wife’s lands, as it may endure for life, and is determinable at no certain period, is a freehold. Co. Lit. 42, b; 351, a; 273, b; 325, b, n. 2. His estate is terminated at the death of the wife, unless the conditions exist, by which he retains the freehold, as tenant by the courtesy.

In view of the law, the holder of the freehold is the owner of the land. He is entitled to the possession and usufruct; chargeable with the feudal services under the old law; and in more-modern times, with the taxes and other burdens incident to land. As the intestate for lile and the remainder or reversion, constitute-but one fee, the law makes him the tenant to the precipe, and intrusts him with the defense of suits brought to recover the land,, with the privilege of praying their aid; and the record of a recovery, in a real action, in all cases where aid is prayed, and in some cases without it, is conclusive on their interests as privies. Co. Lit. ut swpra, 362, a; 2 Black. Com. 362; 3 Ib. 193.

A voluntary partition may be made by tenants for life, holding estates in joint tenancy or coparceny; when made by husbands, of wives’ lands, if equal, it binds the inheritance. The writ departitions facienda must be brought against such a tenant. It lies at common law against the tenant by the courtesy, although a ^stranger, and the benefit of this writ was given to him by the statute. 32 Henry 8, c. 32; Lit., sec. 264; Co. Lit. 174 b, et seq., and 171 a. n. 2.

The statute of 1804 (3 Stat. 378) gives to any joint tenant, tenant in common, a parcener, the right of making a partition, by petition to the court. Under this law, Samuel Foster, and his-wife Hepbzibah, who was properly joined in the writ (Lit., sec. 256; Co. Lit. 170, 176), united with some of their co-tenants in the proceedings before us. During the life of his wife, Foster was a necessary party to represent her interest; by her death, his estate by the courtesy continued him the tenant of the freehold, without-determining his rights or interests.

The court, having the case before them, proceeded to appoint commissioners to make partition, who reported that no division could be made without impairing the value of the land; Lave was given to Woodward and Foster, two of the parties to the proceedings, to take it at appraisal. The statute gave to the sheriff authority to convey, -which he has executed. The irregularities which are alleged to exist in these proceedings are not of such a • character as render them void, when questioned in this collateral-way. 5 Ohio, 255; 7 Ib. 257; 2 Pot. 157; 10 Ib. 450.

It is alleged that the deed is defectively executed, it being acknowledged by “the late sheriff.” The case shows that the deed was made by the sheriff while in office; his subsequent acknowledgment, although after his term has expired, is carried back, by relation, to the time of execution.

The marginal note, made by the recorder on the registry, cannot be admitted as evidence to affect the validity of the deed. When it was made does not appear, but it must have been after-registration. It is not competent for a public officer to undo what he has once done, and thus correct his errors; when he has executed his duties, he is functus officio, and has lost his power over the subject.

We are, therefore, led to conclude that these proceedings must be taken as valid between these parties, and that Foster acquired the rights of Abigail Pillsbury, and Mary and Seth Cutter, under them. The plaintiffs urge, that as Foster was a party to the suit, as a tenant for life, of an estate, the remainder of which belonged, to them, all his acquisitions were in that character, and should inure to their benefit after the determination of the particular-estate. The soundness of this position is not admitted; Foster was a party to'these proceedings in his own right, pursuing his *own interests, in the course of which he acquired the lands of these co-tenants by purchase. He can not charge the remainder with the purchase money. It is not just that they should reap the benefit of his advancement, or enjoy that for which they have never paid.

The remaining eighth, the original share of Mrs. Foster, being-already the property of Samuel, was not the subject of this sale. The interest of the remainder was not before the court, as no partition could separate it from the particular estate, and no money was professed to be paid for it. As the estate by courtesy has determined by the death of Foster, the remainder has become an> estate in possession, and may be recovered in this suit.

Judgment for plaintiffs for one eighth.


source: Caselaw Access Project

author: Judge Grimke

license: Public Domain

text:
    Pauline Anderson v. Garlin Anderson.
    'To a suit upon a judgment rendered at law, in Virginia, the plea that it was obtained by fraud, is not available, but the judgment can only be directly impeached in chancery.
    This cause was adjourned, from the county of Brown.
    It was an action of debt, founded upon a judgment recovered in the county of'Notaway, of the commonwealth of Virginia. Defendant pleads, first, in general terms, that the judgment was obtained by fraud, upon which plea there is an issue in fact. In a >second and in a third plea, the fraud relied upon is specially alleged. To those pleas there were general demurrers, upon which the cause was heard.
    Collings, for plaintiff. n
    Hamer and Devore, for defendant.
   Judge Grimke

delivered the opinion of the court:

It is remarkable that this question has never received a precise •determination. As the hooks abound so fully in the general doctrine, that fraud avoids all judicial acts, and the proposition is so often asserted in terms which import that a judgment may for that cause be impeached collaterally; that.one would expect to meet with several cases in which the question had been directly .adjudged. In Borden v. Fitch, 15 Johns. 121, the defense was placed on the ground of want of jurisdiction, in the Supreme Court of Vermont, to decree a divorce, the defendant to the petition residing in another state, and having no notice of the proceedings. *It is, however, said by the court, that as the decree was obtained by false and fraudulent representations it was void, .and Fermor’s case, 3 Coke, 77, is relied upon as the only authority. It is surprising that a court, which had long before decided that a deed obtained by false representations could not bo avoided at law, should uphold the doctrine that a judgment, a much more solemn instrument, might be impeached for that cause. In the case before them, it is unnecessary to decide upon the general ■question; because nothing is now better established than that where a judgment has been obtained without personal notice to ■the defendant, it is only to be regarded as a foreign judgment, and is not comprehended in the provision of the constitution of the United States. But it is important to examine Eermor’s case. It was a bill in chancery to annul a fine; that is, it was a proceeding directly instituted to get rid of a judgment at law. Eich-ard Eormor, the plaintiff, demised land to the defendant, Thomas-Smith, for twenty-one years. Afterward, Smith fraudulently levied a fine, to bar the plaintiff of the inheritance. And it appears to have heen a great question then, whether the plaintiff could be relieved, even in chancery; for it is said that it was debated two-days, before all the judges of England and the barons of the exchequer, when it was finally determined in his favor. So thatEermor’s case, so far from being an authority in support of the position that a judgment'may be impeached collaterally, is an authority the other way. In the case of Borden v. Eitch, however, it must be remembered that it was a third person, and not a.. party to the judgment, who was permitted to avoid it. But in Andrews v. Montgomery, 19 Johns. 162, and Shumway v. Stillman, 4 Cow en, the same general doctrine is repeated. It is said, the court had never understood that the decision in Mills v. Duryee, 7 Craneh, was intended to be carried so far as to preclude a party from showing fraud in the procurement of the judgment. In neither of these cases, also, was it necessary to decide upon that question; what is said is only by way of argument. In Mills v. Duryee it was held, that the judgment of a sister state was a record conclusive between the parties, and that it could only be denied by the plea of nul tiel record. It has been doubted (Shumway v. Stillman, 4 Cowen), whether it was intended to say that it was the only plea or the only general issue plea which could be pleaded. And this doubt is suggested in order to open the door to the doctrine that such a judgment maybe impeached by showing want of jurisdiction in *the court or by showing that it was fraudulently procured. As to the first, the suggestion is unnecessary, because the plea of mil tiel record reaches it; and as to the second, it becomes important first to establish the general doctrine that a judgment may be impeached collaterally for fraud before we can fasten any such implication upon thedccision in Mills v. Duryee.

In Pierce v. Jackson, 6 Mass. 242, it was held that where one who has obtained a judgment upon a fraudulent contract sues the Bheriff for a false return, he may show such frauds in his defense.in favor of the other creditors. The case, then, diffei’s in three particulars from the present: 1. The defense was permitted to a third person ; that is, to the sheriff, who represented the creditors. .2. The sheriff himself was not a party to the original judgment. .3. There was no court in Massachusetts possessing chancery jurisdiction.

With regard even to foreign judgments, there appears now to be .the strongest inclination to depart from the former doctrine, that they are only prima facie evidence. In Tarleton v. Tarleton, 4 M. & S.21, where it was rigorously contended that a foreign judgment was re-examinable, Lord Ellenborough remarked that he did not sit at nisi prius to try a writ of error upon the proceedings of the court abroad. Lord Hardwicke had long ago maintained the same doctrine, and declared that where a court, foreign or domestic, that has jurisdiction of the case, makes the determination, it is conclusive and binding upon all other courts. Boucher v. Lawson, Cas. S. Hardwicke, 89. And in the late case of Martin v. Nicolls, .3 Simon, 458, the vice-chancellor, after a diligent examination of all the law on the subject, upheld, as the true doctrine, that foreign 'judgments were conclusive evidence and not open to examination, and that this was the true result of the old authorities. And any one who will undertake to consider the pressing and almost insuperable difficulties attendant upon a different state of the law, will be surprised that a contrary doctrine has ever been maintained.

If such is the view which is now taken of the efficacy of foreign judgments, what shall we say of the attempt to impeach, collatterally, a judgment of a sister state which has all the force and validity of a domestic judgment? That it can not be vindicated -either upon principle or authority, and that although loose dicta in abundance may be found to countenance it, yet that it has no root, either in English or American jurisprudence. In Wightman v. Wightman, 4 Johns. C. C. 343, which was a bill *filed to declare the marriage of the parties null on the ground of lunacy of the defendant, the court entertained the suit, saying that although the statute pronounced the marriage absolutely void, yet it was eminently proper that proceedings should be directly instituted, in some court of competent jurisdiction, to declare its nullity. A court of chancery, in a proper case, will interfere, after verdict and judgment at law, in cases of fraud. 2 Atk. 190; 2 Wes. jr. 135. Whether this is such a case is not now to be determined. That may seem to be a technical rule, which sends a party into another court for relief. But the adherence, to even technical rules, is attended with manifold'advantages. A wise man, however high his faculties, will be disposed to observe them. The introduction of order, regularity, and precision into the practice contributes, more than any other circumstance, to the due administration of justice. It banishes disorder and confusion from the court-house, and establishes system and arrangement in the examination of every controverted question.


text:
    Levi Rich v. The State of Ohio.
    In an indictment for stealing hank hills and promissory notes, it is necessary, under the act of 1835, for the punishment of crimes, to aver in the indictment that the accused knew that the papers stolen were hank hills and promissory notes, and to prove such knowledge on the trial.
    This cause was adjourned from the county of Portage.
    Judge Wood stated the case, and delivered the opinion of the court:
    The plaintiff was indicted, tried, and convicted of grand larceny, at the February term, 1837, and sentenced to imprisonment for three years, in the penitentiary. The indictment avers, in substance, that certain bank notes, and divers promissory notes, the property of Jared Jennings and James Haggart, of the value of two hundred and sixteen dollars, the plaintiff in error did feloniously take, steal, and carry away, then and there knowing them to be such.

    The indictment is drawn on section 19 of the act for the punishment of crimes, passed on March 7, 1835. 33 Ohio Stat. 36. The enactment is this: “ That if any person shall steal, or maliciously and feloniously destroy any bank bill, or bills, or promissory note, or notes” “ of the value of thirty-five dollars, or upward, knowing them to be such, any such person shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be imprisoned in the penitentiary, at hard labor, not more than seven years, nor less than one year.”
    *On the trial, a bill of exceptions was taken by the counsel for the plaintiff in error, from which it appears the court charged the jury that the words “ knowing them to be such," in said section, referred to the malicious and felonious destruction, and not to the larceny of the bills or notes specified. In this instruction to the-jury it is contended the common pleas erred. This is the principal question raised on the record, and the only one we shall consider. The rule is, that statutes must be construed according to the intention of the law-making power. If practicable, that intention mnst be gathered from the words employed, or used in the act, and not aliunde. These words are, “ that if any person shall steal, or maliciously and feloniously destroy,” etc. “ knowing them to be such," etc. The crimes specified are two ; they are in the alternative, but. we know of no rule of law which would exclude the scienter from the one, and fix it upon the other, anymore than the punishment, which is prescribed. It appears to us clearly, from the words of the act, that no such construction can be sustained as within the meaning of the legislature. But leaving the words of the act, is there any substantial reason which can be given why stealing a note, without knowledge of its character, should be criminal, and feloniously destroying such note without such knowledge, innocent? The pleader, who drew this indictment, thought differently, and has averred the scienter; and we entertain the opinion that proof of it, on the trial, was required to convict the accused.

    The case of Gatewood v. Ohio, 4 Ohio, 386, may properly be considered as decisive of the question. Gatewood was indicted on section 19 of the act of 1824, for the punishment of crimes, 22 Ohio Stat. 161, for stealing bank bills. On conviction, he sued out his writ of error and took the objection, that the indictment contained no averment that he knew the bills stolen to be bank bills, and the judgment-was reversed.
    The two sections of the different acts are substantially, and so-far as the present question is concerned, precisely similar. In reenacting section 19 of the act of 1824, with the construction put upon it by this court in 1831, in the same words, it is reasonable to suppose the general assembly intended the scienter of the accused as a necsssary ingredient to constitute the crime, in a charge for stealing bank bills, or notes.
    The judgment is reversed, the prisoner remanded, and a venirefacias de novo awarded.


author: Lane, T.,

text:
    *Olive Township v. Manchester Township.
    To prevent a pauper obtaining a settlement by twelve months’ residence, it is necessary that the overseers of the poor of the township where the pauper may be, should strictly comply with the law, in- warning him to depart by warrant, and in returning the warrant to the township clerk, and causing it to be recorded.
    This was a motion for a writ of error,, adjourned from the county of Morgan.
    Nye and Parish, for plaintiff.
    Goddard and Hanna, for defendant.
   Lane, T.,

stated the case, and delivered the opinion of the court:

The facts, upon which the opinion of the court must be predicated, are these :

Nathan Maltheney and family, in 1833, were settled in the township of Manchester. In the spring of 1833, they removed to the township of Olive. On November 10, 1833, the overseers issued their warrant to the constable, to warn them from the township of Olive, which was served upon the paupers, next day, by-reading. The constable indorsed the certificate of his doings on the warrant, but neglected to return it to the clerk of the township ; so that no record had been made of it, and it is lost. The question-is, whether this constitutes such a warning, under section 4 of the act for the relief of the poor, vol. xxix, 321, as prevented the pauper from acquiring a settlement in the.township.

The duty of supporting a pauper is cast upon the township where he resides a year ; but this burden may be avoided within the year, if the township officer issue the warrant, serve it, make a certificate of service, return it to the township clerk, and have it entered upon the township records within three days after service is made. The object of this record seems to be, not merely to furnish testimony of the service of the warrant, in which case other evidence is admissible, as to be itself in the nature of a declarative act, by which the pauper may know where to apply for relief, and the township enabled to ascertain the extent of their liability. Yiewed in this light, in a case between townships, who stand in equal equity, we deem it expedient and just, to require a plain and obvious compliance with the law from those who seek to avoid the obligation. Motion overruled.


author: Judge Hitchcock

text:
    *Lessee of Sage Kellogg v. Anthony McLaughlin.
    A sale of land for taxes is not valid, unless the record of the advertisement of the list of delinquents for four weeks, between the first of October and the first of December, be recorded in the auditor’s office as the law requires.
    Action of ejectment, reserved in the county of Richland.
    This action was brought to recover the possession of lot number 34, in the town of Yermillion, Richland county. The case, by consent of parties, was submitted to the court. The plaintiff claims title under a deed executed by the county auditor, pursuant to a sale for tax. The town lot in question appeared to have been regularly entered for taxation, although not in the name of the rightful owner, and was returned delinquent for the non-payment of the tax of 1831, and was sold for the tax of this year, together with the accruing interest and penalty, and the tax of 1832. In support of his title, the plaintiff offered in evidence a certificate of the county auditor contained in his records, wherein it is alleged that said auditor had caused the delinquent list for taxes to be published, in a newspaper printed in said county of Richland, for four successive weeks, “ between the first Monday in October and the first Monday in December in the year 1832.” This evidence was objected to, because it did not appear from said certificate that said delinquent list had been published four weeks, between the first day of October and the first day of December of that year. This objection was sustained by the court, and the testimony rejected. Whereupon the plaintiff offered to prove, by parol, that the delinquent list was actually published four weeks, between the first days of October and December, and the question whether such evidence could be properly received, was reserved for decision by the court in bank.
    The case was argued by Bartley, for the plaintiff, and by Barr, for the defendant.
   Judge Hitchcock

delivered the opinion of the court:

Although the question reserved does not necessarily require it, still it seems proper, in the first place, to consider, whether the court properly rejected the evidence offered from the records of the county auditor. For if, in this particular, there was error, the other evidence offered is unnecessary, and without it the plaintiff will be entitled to judgment.

The circumstances under which lands may be sold for taxes are pointed out in the law, “prescribing the duties of county auditors,” 29 Ohio L. 280, taken in connection with the law *“prescribing the duties of county treasurers.” 29 Ohio L. 291. And the first of these laws prescribes the manner of sale. By section 46 of the former act, it is provided “ that every tract of land and town lot offered for sale by the treasurer, as in said act provided, and not sold for want of bidders, sh'all be, and is declared to be forfeited to the State of Ohio, and thenceforth, all the right, title, claim, and interest of the former owner or owners thereof shall be considered as transferred to, and vested in said state, to be disposed of as the legislature may, by law, direct.” It is conceived that a penalty so severe as this can not with propriety attach, unless the officers of the government, its agents, have .strictly complied with and fulfilled their duty. The law must have been strictly performed.

In the ease before the court, the lands were not forfeited to the state, but when offered by the treasurer were sold for the taxes. But had they not been sold, the penalty of forfeiture would have attached. It would seem to follow, that unless the forfeiture would have been legal, the sale itself can not be legal, and can confer no title, for it would be absurd to say that a sale can be good when the preliminary proceedings have been so defective, that had there been no sale, there could have been no legal forfeiture.

In the act before referred to, “ prescribing the duties of county .auditors,” the duties of that officer are pointed out plainly, and specifically, and it would seem that there was no necessity that they should be mistaken. In section 30, it is required that the -county auditor, as a preparatory step to the sale of lands for taxes, “ shall cause the delinquent list to be published at least four weeks, between the first day of October and the first day of December, in some newspaper, printed in his county, if any be printed therein,” with a notice attached that the lands will be sold on the last Monday of December, unless the tax shall be paid before that time.

In section 3, it is provided “that the county auditor shall, before the day of sale mentioned in such notice, record in a book to be provided for that purpose such delinquent list and notice, copying the same from the paper in which they shall have been, published, and shall certify, at the foot of said record, the name of said paper, and the length of time such list and notice were continued therein.”

The object of these two sections is manifest. The design of the first is to give notice to the public what lands are to be sold,, and to give notice to the proprietors of these lands, that unless the taxes are paid, the lands will be offered for sale on the day *specified. The design of the last, that there may be at all times in the auditor’s office record evidence that the requisitions of the law, directing notice to begiyen, have been complied' with.

The evidence offered in the present case and rejected, showed that the delinquent list had been published four weeks in succession in a newspaper printed in the county of Richland, after the-first day of October, 1832; but it did not show that the last of these publications was before the first day of December in that year. It was before the fii'st Monday in December, but the first Monday was not the first day of the month. It did not then conduce to prove the fact, that publication had been made within the time, and in the manner required by the statute, and it was therefore properly rejected.

The next question, then, and the one reserved is, can the fact that the publication was actually made within the time prescribed by the law, be proven by parol. The auditor’s record, although evidence, can not be held conclusive upon a person defending against a forfeiture, or a tax title. The auditor is not Ms-agent, but the agent of the government. Of course, he ought not to be concluded by the acts or records of that officer. Such person might show, by matter dehors, that the law had not been complied with, as that the delinquencies had not been returned, that the delinquent list had not been published at all, that it had not been published at the proper time, or that it had been published in a different paper from the one named by the auditor.

But the case is different where an individual claims under such title. The law has made provision that a record shall be made of all the proceedings in matters of this sort, by means whereof titles of this description may be ascertained. It is under, or in pursuance of these records, that the tax purchaser claims title, and unless they show in him a legal right, such right can not be .shown by parol. As our laws are now constituted, it would be a dangerous principle to adopt, that tax titles may be sustained partly by record and partly by parol proof. If the county auditor had failed entirely to make the record required in section 31 of this act, it will hardly be contended that parol proof of the facts therein required to be recorded could be admitted. But no reason •can be assigned against receiving such evidence which may not, with equal force, be assigned against receiving the evidence now offered. In the opinion of the court, this evidence can not be received. Judgment must therefore be rendered for the defendant.


author: Judge Wood

text:
    *Matthew Acheson et al. v. The Western Reserve Bank.
    "The court can not, upon a writ oí error, notice a bill of exceptions that is not made part of the record.
    This was a writ of error reserved in tne county of Trumbull. The original action was assumpsit upon sundry indorsements. At the trial, the plaintiff in error objected to various points of testimony, in which they were overruled; but at the time of the trial, no bill of exceptions was presented, or put on file, as was maintained, on the part of the defendant in error.
    Sutlief, for the plaintiff in error:
    It is urged by defendants that the bill of exceptions, upon which, reliance is placed for proof of many of the errors assigned, is no part of the record.

      What evidence of this fact is ther? before the court? None, except that the certificate made by the clerk (who, by the by, is one of the defendants) precedes, rather than follows, the bill of exceptions.
    Section 96 of the practice act, which gives to a party the right of preferring a bill of exceptions, on the trial of any cause in common pleas, makes it the duty of the judges concurring in the decision to which the exceptions are taken, “ to sign and seal a bill,1 containing such exception or exceptions as heretofore, in order that such bill of exceptions may, if such party desire it, be made a part of the record in such suit.”
    The question then arises, is there any evidence before this court, that the bill of exceptions in question has been tendered, and signed and sealed in accordance with the requisition of this-statute, and so as to entitle the party tendering the same to any benefit from the bill? The bill commences in the usual manner. It proceeds to relate all of the proceedings had on trial of the cause, in a summary manner, and the several exceptions taken by the party, and concludes in the usual words,To all of which the-defendants except, and the court here sign the defendant’s bill of exceptions, that the same may become part and parcel of the record.”

    The court have signed this bill, and its contents is the language' of the court relative to the trial — as much so as a judgment, or any other official act of the court. The same was left in the hands-of the clerk, and if not copied into the record book in a skillful or ^proper manner, it nevertheless, being signed by the court» was then, and continues to be, part and parcel of the record. The whole of the objection to the bill of exceptions being regarded as strictly belonging to the record, is the fact that the clerk has not. copied it in its proper place. The same objection might be urged to any part of the pleadings on record, if left out of their proper place by the clerk. When the bill was sealed and signed by the court, and deposited with the clerk and filed in his office, he had no right to omit inserting the same as a part of the record; for-the court say, in signing the bill on the trial of the cause, “And the court here sign this, the defendant’s bill of exceptions, that the-same may become part and parcel of the record.”

    All the proceedings had in a cause, which belong on the record, especially when signed by the court, and as they say in this case-for the purpose of being made up in the record, are in fact parts of the record, and together constitute the records of the cause although the same should remain in the files or journals, and never be formally copied into the record book. Judge Swift, in the first volume of his Digest, page 771, in speaking of bills of exceptions, says, “ When signed it is considered as part of the record in the cause.”

    In the present case, it appears from the bill that the errors were assigned, and that they were noted for the purpose of being made a part of the record, and that the same were duly signed by the court and left with the clerk. The statute does not require any order of the court, or anything further from the party, in order to entitle him to the benefit of the bill of exceptions contemplated by the statute.
    Pease, for the defendant in error:
    The ei’rors assigned, and which will be relied on, are predicated upon a supposed bill of exceptions, which is appended to-the copy of the record, but. which is no part of the record, nor ever was, nor is returned by the clerk as such, nor was it filed with the clerk until two or three months after the court. This being disposed of, I can discover no suspicion of error to answer unto.
    The court will notice that the copy of the record was made out December 1, 1835, and the bill of exceptions was brought to the office probably in February following, when the last certificate was made, but was never regularly filed, and no order of *court that it should be made a part of the record, so informs the clerk.
   Judge Wood

delivered the opinion of the court:

We have examined the question raised, whether there is a bill of exceptions in this case, and our conclusion is that there is none. Attached to the record, and sent up with it, there is a separate paper, certified at the bottom by the clerk, as being the original bill of exceptions on file. This paper is signed by three of the judges; when or where signed does not appear. It bears no date; there is no certificate when it was taken, no evidence when it was filed; there is no order of the court making it part of the record of the cause.

Our practice act, section 96, provides that in civil eases the bill of exceptions maybe made part of the record, if the excepting party request it. The court have repeatedly ruled that if a party would avail himself, upon error, of exceptions taken, at the trial in the common pleas, he must cause such exceptions to be made part of the record. In Baldwin v. The State, 6 Ohio, 16, it was decided that no matter could be noticed, on error, which did not appear i,n the record so as to make part of it. In Hosmer v. Williams, Wright’s C. 355, there was a bill of exceptions, as in this case, returned with the record, but the court held that it must be disregarded, because not made parcel of the record. In this case, the court say, it has been repeatedly decided that if a party would, avail himself of a bill of exceptions he must have it recorded, as required by the practice act.

In this view of the case there is nothing before us to examine but the pleadings and judgment. Perceiving no error in these, the judgment must be affirmed.

Judge Hitchcock, being a stockholder in the Western Reserve Bank, did not sit in this case.