author: Burket, J.

text:
    Roberts, Ex’r., et al. v. Roberts Jr., et al.

      Petition in error — • By averment of unnecessary extrinsic facts is not changed to petition in equity, when — Relation of such averment to record —: Pleadings — Guardian may not waiz'e issue of summons to minor, when — Void or erroneous judgment conveying land to minor — May be reversed at his majority— Must reconvey before accepting other property instead — Rights of infancy.

    1. ' It is proper to aver such extrinsic facts in a petition in error as will show that the plaintiff in error has succeeded to rights under the judgment or has reached the age of majority; and as to such extrinsic facts the petition in error should be verified. The averment of extrinsic facts beyond what is necessary will not have the effect to change a petition in error to a petition in equity. Irrelevant extrinsic facts should be stricken from a petition in error on motion, but the refusal to strike out such irrelevant facts is not reverisble error, unless such facts would be prejudicial upon a hearing upon the merits of the petition in error.
    2. Nothing can be added to or taken from a record by averment in a petition in error, and extrinsic facts pleaded in such a petition do not form any part of the record sought to be reversed, but only serve to show that the plaintiff in error has a right to prosecute error upon such record.
    3. A guardian of a minor has no authority to waive the issuing and service of summons on his ward in an action affecting the ward’s rights, nor to dispense with the appointment of a guardian ad litem, unless authorized so to do by statute; and a judgment against a minor in an action wherein he did not have his day in court, may be reversed upon petition in error filed by him within the statutory time after reaching the age of majority. Such judgment, though void in legal effect, may ■ be a cloud upon his title or rights, and he has the right to remove such cloud by a reversal of the judgment.
    4. In such petition in error it is sufficient if all the parties in interest in the judgment sought to be reversed are made parties. When nothing is claimed for or against a party in the pleadings, and nothing is adjudged for or against him in the judgment, it is not error to omit such party from proceedings in error.
    5. Where lands have been conveyed to a minor by order of a void or erroneous judgment, he may, upon arriving at the age of majority, cause such judgment to be reversed without first offering to reconvey the lands. But he must tender reconveyance before recovering the property in lieu of which the lands were conveyed to him.
    (Decided October 31, 1899.)
    Error to the Circuit Court of Crawford county.
    John Roberts died in the month of September, 1885, leaving a will as follows:
    “1. I give, devise and bequeath to my beloved wife, Isabel Roberts, all my household goods and furniture, and the homestead property where I now reside, containing about fourteen acres, also an annual income of three hundred dollars a year, to be paid, one-half April 1, and one-half October 1, of each year. Should my said wife desire it, said homestead property may be sold and conveyed by my executor, and two thousand dollars of the proceeds invested in real estate in the village of Bucyrus, for a homestead for my said wife, these legacies to my said wife shall remain and continue during her life, if she so long remain my widow and unmarried, at her decease, or at her remarriage, if she marry again, I give, devise and bequeath said fourteen acre tract, or in case that be sold, the property to be bought in the town of Bucyrus out of the proceeds, to my son John Roberts Jr., in fee.
    2. I give, devise and bequeath to my daughter Mary Jane Cobb, the house and lot in Bucyrus where she now resides. I order and direct my executor to build a summer kitchen on the west side of her house, of suitable size and reasonable expense, and to pay the taxes on said house and lot for the first year after my decease, this legacy to my said daughter is for and during her life, on condition that she does not allow or permit James Cobb, her husband, to reside upon the property or stay there. Upon the death of my said daughter, or in case she disregards the above conditions upon which said property is devised to her, I give, devise and bequeath said property to her children in fee.
    3. I give, devise and bequeath to my great grandson, John Fleming Roberts, the sum of eight hundred dollars, and order and direct that the same be invested in real estate in his name and authorize and empower his mother, Virginia Roberts, to make the investment for him.
    4. I order and direct that the time of payment of the amount owing to me by my son, Wesley Roberts, be extended for the term of eight years from this date on the principal sum of said indebtedness, he to be required to pay interest in accordance with the terms and condition of the loans.
    ! 5. All the residue of my property not herein otherwise disposed of, I order and direct to be invested at interest to the best advantage for my estate, and out of the income of the funds, as well as the interest on the funds mentioned in clause four of this will, the said cash payments to my wife as well as all other liabilities and expenses to be paid.
    And when my said son, John Roberts Jr., arrive at the age of twenty years, eight thousand dollars of said invested funds with the accumulated interest thereon, shall be invested in a farm for my said son, John Roberts Jr., the title of which shall be put in his name in fee.
    I charge the maintenance, support and education of my said son John, until he arrives at the age of twenty years, upon my said wife, and upon the property devised to her in this will, and order and direct that he be kept at school at Bucyrus until he becomes twenty years of age.

      In case the amount so devised to my said wife shall be insufficient for themaintainance and support of my said wife and my said son John, I authorize my executors to increase the annual allowance to her not exceeding one hundred dollars a year. If my said daughter, Mary Jane Cobb, shall come to want, I order and direct that my executor out of my estate assist her.
    6. All the residue of my property of every description not herein otherwise disposed of, I give, devise and bequeath to my sons Wesley Roberts, George Roberts and Edwin Roberts, to each an equal share.
    7. I nominate and appoint my son, George Roberts, executor of this, my last will and testament, and do hereby revoke all former wills by me made, in witness whereof I hereunto set my hand seal this twenty-fourth day of August, A. D., 1885.”
    The will was duly admitted to probate, and George Roberts duly appointed and qualified as executor.
    On the 20th day of February, 1888, said executor filed the following petition, duly verified:
    “In the Probate Court, Crawford County, Ohio.
    George Roberts, Executor of the Last Will andTestament of John Roberts, Deceased, Plaintiff, v. Isabel Roberts, Wesley Roberts, Mary Jane Cobb, Edwin Roberts, John Roberts Jr., James H. Malcolm, Guardian of Said John Roberts Jr., and John Fleming Roberts, Defendants.} PETITION.

      The said George Roberts, who has been duly appointed and qualified as executor of the last will and testament of said John Roberts, deceased, by said court, respectfully represents: That the said John Roberts died on or about the-day of September, 1885, seized in fee of a homestead property containing about fourteen acres in Holmes township, a house and lot in the city of Bucyrus, and choses in action which, on November 7, 1885, was inventoried by the appraisers of his estate at $12,256.57, of which the sum of $2,146.21 is considered nearly or quite uncollectable. That said Isabel Roberts is the widow of said John Roberts, deceased, that said Wesley Roberts, George Roberts, Mary Jane Cobb, Edwin Roberts and John Roberts Jr., are his children, and said John Fleming Roberts is his great grandchild. That by the provisions of his will the testator devises to said Isabel Roberts during widowhood the said homestead property and an annuity of three hundred dollars a year, with authority on the part ,of the executor to increase the annual allowance not exceeding one hundred dollars a year if the annuity shall be insufficient, and if she desires it to sell the homestead and have two thousand dollars of the proceeds invested in a homestead in the village of Bucyrus for her. To said Mary Jane Cobb the said house and lot in Bucyrus with a charge upon his estate to add a summer kitchen to the dwelling house thereon, and aid in case she come to want. To said- John Fleming Roberts the sum of eight hundred dollars, to be invested in said real estate for him.
    To said John Roberts Jr., when he arrives at the age of twenty years, the sum of eight thousand dollars and certain accruing interest to be invested in a farm for him, and the remainder of said homestead after termination said Isabel Roberts’ rights thereto. In the said inventoried assets of said estate there is included the sum of seven thousand four hundred and seventy-nine dollars and sixteen cents owing to the testator by said Wesley Roberts. The said will provides that the time of payment of the amount owing to the testator by said Wesley Roberts be extended for the term of eight years from the date of the will or the principal sum of said indebtedness, the interest to be paid in accordance with the terms and conditions of the loan. The said will directs that all the residue of testator’s property not therein otherwise disposed of be invested at interest to the best advantage for the estate, and that out of the income of the fund as well as the interest payable by said Wesley Roberts, the cash payments to said Isabel Roberts as well as all other liabilities and expenses to be paid. The said Wesley Roberts, George Roberts and Edwin Roberts are made the residuary legatees of the testator’s estate by said will. The dwelling hoúse on said homestead property has been recently destroyed by fire, greatly reducing the provisions made for the support of said Isabel Roberts and John Roberts Jr. It is the opinion of the executor that there is scarcely property of the estate sufficient to carry out the provisions of said will. That for the purpose of expediting the settlement of the estate of the testator, promoting the interest of the legatees and enabling them to obtain the immediate benefit of their legacies without delay or future risk, the said Wesley Roberts, George Roberts, executor, Isabel Roberts and James H. Malcolm, guardian of said John Roberts Jr., have entered into an agreement in writing relative to the adjustment of the legacies of the testator, a copy of which is hereto annexed marked Exhibit A., and made part of this application. And all the heirs at law and legatees of said testator consenting thereto, the plaintiff prays that the court ratify and confirm said agreement and order that the said James H. Malcolm, as guardian of said John Roberts Jr., proceed to carry into effect the provisions of said agreement on behalf of said John Roberts Jr., and order that said agreement be ratified and confirmed.

      Exhibit A. It is hereby agreed by and between .Isabel Roberts, widow of John Roberts, deceased, James H. Malcolm, guardian of John Roberts Jr., a minor, George Roberts, executor of the last will and testament of John Roberts, and Wesley Roberts, as follows: “The said Wesley Roberts agrees to execute and deliver to said Isabel Roberts and John Roberts Jr., a good and sufficient warrantee deed for the west half of the southwest quarter, and northeast quarter of the southwest quarter of section one in township four, south of range sixteen, in Crawford county, Ohio, the same to be conveyed, held and owned by said Isabel Roberts until the said John Roberts Jr., arrives to the age of twenty years, and shall then pass to and vest in fee simple in the said John Roberts Jr. The said George Roberts, as executor as aforesaid, agrees to release and relinquish to said Wesley Roberts the debt and liabilities of said Wesley Roberts to the estate of said deceased, as shown by the inventory and appraisement of the personal property of said estate. The said Isabel Roberts agrees to relinquish to said executor and to said estate all her title and claim to annuities, maintenance and assistance from said executor and said estate, except the sum of six hundred dollars, which is to be paid on or before-.

      The said James H. Malcolm, guardian as aforesaid, releases said executors and said estate from the eight thousand dollar legacy by said will directed to be invested in a farm for the use and in the name of said John Roberts Jr., and from all claims on said estate or said executor for assistance and support for said John Roberts Jr.
    This contract to go into effect and be binding on all parties thereto on condition that all the legatees of said will and parties in interest consent thereto, and to the modifications it makes of said will, and on conditions that the probate court of Crawford county, Ohio, ratify and confirm the same, September 28, 1887.
    Wesley Roberts,
    Geo. Roberts, Executor,
    Isabel Roberts,
    James H. Malcolm, Guardian.

      ( WAIVERS ON PETITION. V We hereby consent to the terms of the within agreement. M. J. Cobb.' We hereby waive the issue and service of notice, enter our appearance herein, and consent that the court make the order prayed for. Isabel Roberts, Wesley Roberts, Mary J. Cobb, James H. Malcolm, Guardian of John Roberts Jr.”

      On the same day the following decree was rendered in the case in the probate court:
    “This day came the said George Roberts, executor of the last will and testament of John Roberts, deceased, plaintiff, and also the defendants, Isabel Roberts, Wesley Roberts, Mary J. Cobb and James H. Malcolm, guardian of John Roberts Jr., and signify their consent to the provisions of the contract, a copy of which is annexed to the petition marked Exhibit A., and their readiness to carry out the stipulations of the same, the court having examined said contract and heard the proofs and allegations of the parties do find that the provisions of said contract are fair and reasonable and conducive to the interests of all the parties, and especially to the interests of said John Roberts Jr., and to the interests of the estate of said John Roberts, deceased, do ratify and confirm the said contract and authorize and empower the said George Roberts, executor of the last will and testament of said John Roberts, deceased, and the said James H. Malcolm, guardian of the said John Roberts Jr., to carry out the provisions of said contract and execute and deliver all such instruments of writing as may be necessai*y and proper for that purpose.”
    On the 25th day of February, 1895, being six months after John Roberts Jr., reached the age of twenty-one years, he filed the following petition, duly verified, making the will of John Roberts, deceased, Exhibit A.:

      “In Court Common Pleas, Crawford County, Ohio.
    John Eoberts Jr., Plaintiff, \ v. j George Eoberts, Executor I of the Last Will and Test- / ament of John Eoberts, I Deceased, Isabel Eoberts, \ Wesley Eoberts, Mary Jane Í Cobb, Edwin Eoberts, and \ James H. Malcolm, Guard- \ tan of John Egberts Jr., Defendants. / petition in error.
    The said plaintiff says: That in the month of September, A. D., 1885, John Eoberts departed this life at the county of Crawford and State of Ohio, that he died testate, and his will was duly admitted to probate and recorded in the probate court of said county, a copy of said will is hereto attached marked “Exhibit A,” and made a part hereof.
    Plaintiff further says that he was then a minor and said James H. Malcolm was appointed by said probate court as his guardian, said appointment being made on the 28th day of September, A. D., 1887.
    Plaintiff further says that on the 7th day of November, A. D., 1885, said executor filed and swore to an inventory of the personal property of said estate, which showed $95.00 household goods, which were taken by said Isabel Eoberts, widow of the testator under the statute and provisions of said will.
    Said inventory showed all the remainder of the personal property of said testator to consist of interest bearing promissory notes amounting to $12,-256.57. Among said securities as shown by said inventory was a promissory note secured by mortgage against said Wesley Roberts in favor of said testator for $5,382.00, dated April 3, 1880, and due April 3, 1881, with eight per cent, interest per annum, that partial payments of interest had been made upon said promissory nóte to the testator, so that at the date of said inventory there was due upon said promissory note the sum of $7,040.99, which amount was found collectable by the appraisers and so certified by them in said inventory.
    Plaintiff further says that the estate was not in debt beyond a few small unpaid bills amounting in the aggregate to $26.72, and the funeral expenses, including cemetery lot, amounted to $263.70. The personal assets of said estate were good and ample to carry out the provisions of said will, and give to this plaintiff in full his legacy therein provided.
    Plaintiff further says that by the terms of said will said executor was required to keep the said securities and the funds of said estate at interest, and when this plaintiff should arrive at the age of twenty years, to invest $8,000.00 of said invested funds with the accumulated interest thereon, in a farm for this plaintiff, the title of which should be put in him in fee simple.
    This plaintiff says he arrived at the age of twenty years on the 29th day of October, A. D., 1893, and at that time said executor did not invest $8,000.00 and interest or any part of said funds in a farm for this plaintiff.
    On the 29th day of October, 1894, the plaintiff arrived at the age of twenty-one years, he, through his attorneys, made written demand of said executor for his legacy under said will, but said executor neglected and refused, and still neglects and refuses to discharge his said duty to give plaintiff his said legacy or equivalent.
    This plaintiff is informed and believes, and on such information and belief alleges: That said George Roberts, as executor of the last will and testament of said John Roberts, deceased, in order to avoid his duties toward this plaintiff under said will, and to modify and change the will itself, procured an order to be made on the 20th day of January, A. D., 1888, purporting to authorize said Wesley Roberts, mortgage debtor of said estate, to execute a deed of certain real estate to Isabel Roberts, plaintiff’s mother, until plaintiff should arrive at twenty years of age, with remainder to plaintiff in fee simple, and discharge said Wesley Roberts from his said mortgage debt amounting at that date to $7,479.16, and thereby extinguish all other claims of plaintiff to said legacy.
    Said order was made in a proceeding instituted by said executor in said probate court, wherein said George Roberts, executor of the last will and testament of John Roberts, deceased, was plaintiff, and Isabel Roberts, Wesley Roberts, Mary Jane Cobb, Edwin Roberts, John Roberts Jr., James H. Malcolm, guardian of John Roberts Jr., and John Fleming Roberts were defendants.
    A certified copy of said order and the record of the proceedings whereon the same was founded is hereto attached and marked “Exhibit B,” and made part hereof.
    Plaintiff having recently and within the past six months arrived at the age of twenty-one years, institutes these proceedings for the reversal of said order, and says: that in the record and proceedings aforesaid is manifest error in this, to-wit:

      1. This plaintiff was not made a party to said action, no summons having been issued against him, and no process was served on him.
    2. The said James H. Malcolm, as guardian of this plaintiff, had no authority in law or in fact to waive summons in said cause, or to enter the appearance of this plaintiff therein, or to consent to the order prayed for in said executor’s petition.
    3. The said James H. Malcolm, 'as guardian, had no authority in law or in fact to enter into said agreement in behalf of this plaintiff. .
    4. No answer or defense in said action was made by guardian ad litem, in behalf of this plaintiff or by any one, and no guardian ad litem was appointed for plaintiff.
    5. Said contract, marked “Exhibit A,” in said record on its face required the consent of “all the legatees of said will and the parties in interest to consent thereto, and to the modifications it makes of said will,” whereas all the said legatees and parties did not sign said agreement, to-wit, the same was not signed by said legatee, John Fleming Roberts.
    6. Said John Fleming Roberts was a necessary defendant in said action, but was neither summoned or entered his appearance therein.
    7. The probate court had no jurisdiction to malee said order or approve said contract, nor exonerate said executor from liability for said $8,000.00 legacy prior to the time plaintiff was twenty years of age.
    This plaintiff further says there is error in said order and proceedings not apparent upon the record in this, to-wit:
    8. Said Wesley Roberts, on the 20th day of January, A. D., 1888, executed a deed for the following described real estate situated in the county of Crawford aforesaid, to-wit: The west half of the southwest quarter, and the northeast quarter of the southwest quarter, section 1, township 4, range 16, containing 120 acres in said county. The granting clause of said deed is “that the said Isabel Roberts to have and to hold the premises until October 29, 1893, when the said John Roberts Jr., will arrive at the age of twenty years, and then the full fee simple title shall pass to and vest in the said John Roberts Jr.,” and said executor, in consideration thereof, proceeded to apparently release said Wesley Roberts from his said mortgage debt. Said land was on said 29th day of October, A. D., 1893, worth not to exceed $3,600.00, and could not under said will satisfy plaintiff’s legacy of $8,000.00 and accruing interest thereon.
    9. Said land on the 29th day of October, A. D., 1894, on plaintiff’s arrival at age was not worth, nor is the same now worth to exceed $3,600.00.
    10. Said land was sold for taxes prior to the 29th day of October, A. D., 1893, and other parties are now in possession thereof under said tax title.
    11. Said deed for said land was never delivered to or accepted by this plaintiff, nor has he since he arrived at the age of 21 years, ratified said agreement of said executor and guardian, the said order of court, or “the modifications it makes of said will.”
    Wherefore, this plaintiff prays that for the errors aforesaid the said order and proceedings of said probate court may be set aside, reversed and held for naught, and that he may be restored to all the rights he may have lost thereby.”
    James H. Malcolm, defendant, filed a motion to compel plaintiff, John Roberts Jr., to amend his petition by striking therefrom as irrelevant and redundant, the averments as to the facts not appearing in the record of the probate court, being an enumeration of eleven items asked to be stricken out. This motion was overruled and exception taken.
    George Roberts, executor, demurred to the petition on the ground that the court of common pleas had no jurisdiction of the subject of said cause of action, that there was a defect of parties plaintiff and defendant, that several causes of action were improperly joined, that separate causes of action against several defendants were improperly joined, and that the petition does not state facts sufficient to constitute a cause of action. This demurrer was overruled and exceptions taken.
    James H. Malcolm, guardian, filed a like demurrer and it met a like fate, to which he excepted.
    Thereupon the executor and guardian filed separate answers in which the age of the plaintiff, the making of the will and the conveyance of the lands to plaintiff are conceded, but the averment in the petition in error that plaintiff had not ratified said agreement and order is denied, and issue is taken with the other averments of the extrinsic facts set up in plaintiff’s petition. New matter is also set up as an answer, treating the petition as one in equity.
    The plaintiff took issue in his reply with the new matter set up in the answers.
    Afterward the executor filed an amendment to his answer, in which he averred that the debts and legacies of equal priority of the testator, John Roberts, were largely in excess of the assets of his estate and could not all be paid, that said contract was made in good faith and was proper to be made subject to the approval of the probate court. He further set up the making of the deed, the release of the mortgage, and all that was done in pursuance of the said contract and decree of the probate court, and asked that in case the decree of the probate court should be reversed, that all parties should be restored to what they had before that decree was made, and that the estate of the testator should then be administered under his will. The guardian filed a like answer.
    The plaintiff in his reply took issue with these averments to the answers, and denied that the court had jurisdiction for want of proper parties to make the order prayed for.
    A motion was also made by defendants to have one, John A. Schaber, the successor of James H. Malcolm in said guardianship, made a party defend, ant, for the reason that while he was such guardian with sufficient money of his ward in his hands, he allowed said lands to be sold at delinquent tax sale, and purchased the same himself, and took a tax deed therefor in his own name, and still holds the same. This motion was supported by an affidavit, but the motion was overruled and exceptions taken.
    The cause was heard at the April term, 1897, upon the petition in error, the transcript and the evidence, and was argued by counsel, on consideration whereof the court of common pleas found that there was no error apparent upon the record, that said plaintiff was not entitled to the relief prayed for in his said petition, and therefore affirmed the judgment of the probate court. The plaintiff filed a motion for a new trial, which was overruled and exceptions taken.
    Upon petition in error by John Roberts Jr., the circuit court reversed the judgment of the common pleas for the following reason: “This cause being a proceeding in equity in said court and not alone in error, the judgment and finding of said court is not responsive to the issue joined in the case, and is against the weight of the evidence, and said court of common pleas erred in overruling the motion of the plaintiff in error herein for a new trial.” Upon reversing the judgment the circuit court sustained the motion of John Roberts Jr., for a new trial, and granted him such new trial. He excepted to so much of the decision as held that his petition was not one in error alone.
    Thereupon George Roberts, executor, and James H. Malcolm, guardian, filed their petition in error in this court, seeking to reverse the judgment of the circuit court; and John Roberts Jr., filed his cross-petition in error, alleging that the circuit court erred in not reversing also the judgment of the probate court.

      Franklin Adams; Beer, Bennett & Monnett and Finley & Ballinger, for plaintiffs in error.

      Harris & Sears, for defendants in error.
    Carefully prepared briefs were submitted by counsel on each side, but as they are devoted mainly to the discussion of questions in the case which the court thought unnecessary to consider they are omitted from this report. — Reporter.
   Burket, J.

Nearly the whole controversy in this case turns upon the question as to whether the petition of the plaintiff below was a petition in error or in equity.

As we view the matter it was a petition in error. The probate court had made an order upon which the executor and guardian acted to the prejudice of John Roberts Jr., while he was an infant, and under section 6723, Revised Statutes, as it then stood, lie had a right within six months after becoming of full age, to file a petition in error in the court of common pleas to reverse that order; and in such petition it was proper to aver and set out such extrinsic facts as would show his age, and his relation to the order or judgment of which he complained, and such facts would not change his petition in error to one in equity. It often occurs in a proceeding in error that extrinsic facts must be pleaded in order to show a right in the plaintiff in error to have the judgment reversed. When a party to a judgment dies, and his heirs, executors or administrators desire to prosecute error, there must be an averment of the extrinsic facts occurring after the rendition of the judgment, in order to give the plaintiff in error a standing in court. In such cases the petition in error must be properly verified as to such extrinsic facts. Hanover v. Sperry, 35 Ohio St., 244. If issue is taken as to such material extrinsic facts they must be established by proper evidence on the hearing, but such facts do not become a part of the record sought to be reversed, because nothing may be added to or taken from the record by averment in the petition in error. Such extrinsic facts only serve to show that the plaintiff in error has a right to prosecute error upon such record.

If more extrinsic facts are pleaded than are necessary they usually do no harm, as they are immaterial upon the hearing of the petition in error upon its merits. A motion to strike out such immaterial averments of fact should be sustained, but it is not usually error to overrule such motion. In the case at bar there is a recital of the history of the estate in the petition in error, which adds nothing to the legal force of the petition, and should have been stricken out. The eighth assignment of error was proper for the reason that it shows that the executor and guardian acted under the order of the probate court, and that, therefore, the order was to his prejudice; but what is said as to the value of the lands in this item, and in the ninth item of the petition in error, is irrelevant and should have been stricken out. The same is true of the tenth item. But the refusal of the court to strike out said irrelevant matter was not prejudicial error, because they could not prejudice the hearing on the merits. The real question, after all, was, did the probate court err to the prejudice of John Roberts Jr., in making the order complained of? This question could be answered and determined by a court as well with these irrelevant facts in the petition as with them out of it.

The petition against John Roberts Jr., and others, was filed in the probate court on the 20th day of February, 1888. No summons was served upon him. No guardian ad litem was appointed, and he was not in any manner brought into court; and yet on the same day an order having the force of a judgment, was rendered against him, and thereby he was prevented from obtaining his legacy in the manner and form, and at the time as provided in his father’s will. It is said now that owing to the insolvency of Wesley Roberts, and the lack of assets of the testator’s estate, John Roberts Jr., received as much or more under this order of the probate court as he would have received under his father’s will if administered according to law. But this, if true, would not deprive him of his rights to take that which his father bequeathed to him. He could not be deprived of that right against his will without his day in court. He had no day in court, and, therefore, the order against him was erroneous. That it was also prejudicial is clear, because it deprived him of a valuable right against his will, a right which he may prize very highly, even though in the end it may turn out to be of less value than the farm which was conveyed to him under the order of the probate court.

The bequest to him was several, and the order affected that bequest, and he, .therefore, had a right to reverse it by petition in error against the same parties who were parties in interest to the proceeding in which the order was made. He need not bring in new parties who were not parties to the action, unless they have succeeded to the rights of such parties upon the record, or by operation of law.

There was, therefore, no error in overruling the motion to make Schaber a party defendant. Neither was there any error in overruling the demurrers, as there was no defect as to parties plaintiff or defendant, and no misjoinder of actions, there being but one action, the petition in error. The court had full jurisdiction of the subject matter, and the petition stated a good cause of action in error. That was all that was claimed for it, and all that was prayed for. There was no occasion for resorting to a petition in equity, because he had a plain and adequate remedy at law by petition in error.

As to the matter of defects of parties defendant, it is particularly urged that John Fleming Roberts and Edwin Roberts wére parties defendant in the proceedings in the probate court, and that John Fleming Roberts was not made a party, and Edwin Roberts was not served with summons, in the proceedings in error by John Roberts Jr., and that, therefore, there is a fatal defect of parties defendant.

It will be noticed as a matter of importance, that while the petition in the probate court contains the names of John Fleming Roberts and Edwin Roberts, it asks no relief for or against them, and that the court made no order for or against them in the order complained of. A contract to which John Fleming Roberts and Edwin Roberts are not parties, is attached as “Exhibit A,” and the prayer of the petition is that the probate court ratify and confirm said agreement, and order said James H. Malcolm, guardian of John Roberts Jr., to proceed to carry into effect the provisions of said agreement on behalf of John Roberts Jr. The order of the probate court granted the prayer of the petition, and authorized the executor and guardian to carry out the provisions of the contract. But no order was made as to John Fleming Roberts or Edwin Roberts, and their names do not appear in the contract, nor in the order of the probate court, and no attempt is made to affect their rights in any manner. The order is not a judgment for them or against them, and therefore they were not necessary parties to the petition in error filed by John Roberts Jr.

The object of the petition in error was, to clear away the cloud upon the right of John Roberts Jr., to receive his bequest under his father’s will, by reversing the order by means of which that cloud was cast upon his rights, so that, having cleared away that cloud, he might proceed according to law to recover his legacy without being hampered by that order of the probate court.

With that order standing as a valid order unreversed, it might be difficult to obtain his legacy under the will, as it would be urged that he should be bound by the order, as he failed to file a petition to reverse it within six months after reaching his ^majority.

It is urged that if he had no day in court he was not a party to the record, and has no right to prosecute error, that the order as to him is void, and that he cannot prosecute error to reverse a void judgment. He is a party named in the petition and record and in the order against him. His rights are attempted to be affected by the order, and on the face of the record it does affect them. The executor and guardian acted under it to his prejudice, claiming it to be valid. He has a right to reverse it and thereby show its invalidity.

Even if the order is void as against him, he has a right to prosecute error to reverse it. He has a right to reverse a void judgment in order to clear away the cloud cast thereby upon his rights or property. Clay v. Edgerton, 19 Ohio St., 555.

The question as to placing the parties in statu quo cannot arise in this proceeding in error. After the illegal order of the probate court shall be reversed, and the cloud upon the rights of John Roberts Jr., removed, and when he shall attempt to obtain his legacy under the will, the rights of the several parties will be protected, and such orders made as will secure to each his full rights. The first step toward repudiating the illegal acts of the executor and guardian is to reverse this illegal order of the probate court, and then before he can obtain his legacy under the will, he must in a proper manner restore the lands. He cannot disaffirm the proceedings of the probate court, executor and guardian, and at the same time affirm them by holding on to the lands conveyed to him by virtue of these proceedings. He must be consistent throughout.

The circuit court reversed the judgment of the court of common pleas upon two grounds, one being that the judgment was against the weight of the evidence, in which we fully concur, and the other that the cause was one in equity and not alone in error, and the judgment was not responsive to the issues joined in the case. In this the circuit court was wrong, but its judgment of reversal was right, because there is manifest error in the record of the probate court to the prejudice of John Roberts Jr., as already shown in this opinion, and the court of common pleas should have reversed that order, unless it found from the weight of the evidence that he had, after reaching his majority, ratified the •order and proceedings so had in the probate court. He avers in his petition that he did not ratify said agreement or order, and this averment is denied in the general denial of the answers, and this was the only material issue in the case for trial, all the other necessary extrinsic facts being conceded in the pleadings.

The question of ratification not being conceded in the pleadings or evidence, this court cannot proceed to render such judgment as the court of common pleas should have rendered, even though the circuit court found that the judgment of the common pleas was against the weight of the evidence.

The judgment of the circuit court will therefore be affirmed, and the cause will be remanded to the court of common pleas for trial upon the single question as to whether there was or was not a ratification of said judgment and order by John Roberts Jr., after he became of the age of majority, and having ascertained that fact, reverse or affirm the order and judgment of the probate court in accordance with this opinion.

Judgment affirmed and cause remanded to the court of common pleas for trial upon the question as to ratification.


source: Caselaw Access Project

author: Burket, J.,

license: Public Domain

text:
    McCoy et al., Trustees v. Jones et al.

      Several judgment against one of joint defendants — Contract several in effect though joint in form — Rights of surety on joint note — Section 3328, Revised Statutes — Practice.

    1. The rule that it is improper for a court to render a several judgment against one or more defendants, leaving the action to proceed against the others, in actions founded upon joint contracts wherein the plaintiff has no election as to the joinder of defendants, his only remedy being by joint action, has no application in favor of a defendant who pleads that he is surety only and has been released from liability on the contract by reason of an extension of time of payment without his consent, the plaintiff in his reply admitting such suretyship. As between parties so pleading the contract is in legal effect several although joint in form.
    2. Courts are confined to a consideration of the statements in the pleadings in disposing of a motion for judgment notwithstanding the verdict under Section 5328, Revised Statutes. The record outside of the statements in the pleadings should not be considered in disposing of such motion.
    (Decided October 31, 1899.)
    Error to the Circuit Court of Clark county.
    The plaintiffs in error commenced an action in the court of common pleas against the defendants in error upon a promissory note, a copy of which, with the credits thereon, is as follows:
    “Vienna X. Roads, Clark County, Ohio,
    July 11, A. D., 1887.
    One day after date, we promise to pay to the trustees of Vienna Lodge, No. 345, I. O. O. F., two hundred dollars with interest at eight per cent, from date. Value received.
    Thomas Jones,
    J. Frock.
    July 2,1888, received on the within note $16.00.
    September 21, 1889, received on the within note $16.00.

      December 7, 1890, received on the within note $16.00 interest.
    January 9, 1892, received on the within note per J. S. Rice, $54.98, per cent, paid on the assignment of Thomas Jones.”
    Both the defendants were residents of Clark county and were duly summoned.
    The defendant, Thomas Jones, failed to demur or answer to the petition. The other defendant, Mr. Frock, filed an answer in which he averred that he was not indebted to the plaintiffs in any sum whatever on the note, because with full knowledge of the plaintiffs he executed the note without consideration as surety for Mr. Jones, who received the whole consideration for which the note was given. That on the 2nd day of July, 1888, without his knowledge or consent, in consideration of the payment of interest on said note at the rate of eight per centum per annum, the plaintiffs agreed with Mr. Jones to extend the time of payment of the note for the period of one year from the 11th day of July, 1887, and in pursuance of that agreement Mr. Jones paid to the plaintiffs the sum of $16.00 on the 2nd day of July, 1888, as interest on the note, and that the time' of payment was then and thereby, without his knowledge or consent, extended to the 11th day of July, 1888, and that he was thereby released from all liability as one of the* makers of the note.
    A second ground of defense averred an extension of time of payment of the note for one year from and after the 11th day of July 1888, in consideration of eight per cent, interest agreed to be paid by Mr. Jones. A third ground of defense averred that the plaintiffs agreed on the 21st day of September, 1889, to extend the time of payment of the note until the 11th. day of July, 1890, in consideration of eight per cent, interest promised by Mr. Jones to be paid. A fourth ground of defense averred a like agreement made on the 7th day of December, 1890, for an extension from the 11th day of July, 1891.
    The reply admitted that Mr. Frock executed the note as surety, and denied all the other allegations of his answer.
    The 'cause was tried to a jury at the January term, 1893, and a verdict returned in favor of Mr. Frock. A motion was filed for a new trial. Before the hearing of that motion a judgment was rendered by the court against Mr. Jones upon the petition for the full amount due on the note, he being in default for demurrer or answer. Afterward, late in the same term of court, the motion for a new trial was sustained, and the verdict of the jury in favor of Mr. Frock was set aside and vacated and a new trial of the issues awarded.
    Afterward, at the May term, 1897, the issues were again tried to a jury and a verdict returned against Mr. Frock for the amount due on the note. He filed a motion for a new trial, which was overruled, and he also filed a motion in arrest of judgment, of which the following is a copy:
    “Now comes Jeremiah Frock, one of said defendants, and moves the court, upon the statements in the pleadings and record herein, to arrest judgment on the verdict in this action against said Jeremiah Frock in favor of the plaintiffs, as by the same he is in law entitled to a judgment against said plaintiffs and especially because a judgment was rendered in favor of said plaintiffs against said Thomas Jones for the full amount of the claim sued in this action by said court on the 10th day of April, A. D., 1893, which has not been reversed or set aside, and since which time no cause of action has existed in favor of said plaintiffs against said Jeremiah Frock on the note mentioned in the petition and amended petition of said plaintiffs.”
    This motion was also overruled and exceptions taken. Judgment was then entered on the verdict. Mr. Frock filed his petition in error in the circuit court, and among other grounds claimed that the overruling of his motion in arrest of judgment was error.
    The circuit court held that the overruling of the motion in arrest of judgment was error, and for that cause alone reversed the judgment, and remanded the cause to the court of common pleas with instructions to sustain that motion, and the proper mandate was sent to- that court.
    Thereupon the plaintiffs in error, also plaintiffs below, filed their petition in error in this court seeking to reverse the judgment of reversal of the circuit court, and to have the judgment of the court of common pleas affirmed.

      Mower & Mower and Patrick Higgins, for plaintiff in error.
    Was there an extension of time, such as would release the surety?
    No authority was ever granted for an extension nor for indulgence. The record shows no agreement. At the time of all the other payments as appears upon the indorsements made upon the note, not only the principal was overdue, but the accumulated interest amounted to more than payments. The mere payment of interest in advance does not imply an agreement to extend the time for the payment of the principal as matter of law. The inquiry is always one of fact, and such, payment may or may not be evidence of such agreement according to the circumstance; the inquiry was one of fact, one for the jury.
    It may possibly be prima facie evidence of an extension, but it is a presumption of fact not of law. 7 Law Bulletin, 281, 8 Dec. (Re.) 391; 8 Law Bulletin, 306, 8 Dec. (Re.) 540; Vore v. Woodford, 29 Ohio St., 251; Gard v. Neff, 39 Ohio St., 610.
    Was the motion to arrest judgment properly made?
    This motion could only be made by virtue of the statutes. Section 5328.
    What grounds in the pleadings for the defendant Jeremiah Frock to maintain a motion to arrest judgment when nothing in the pleading would entitle him to a judgment in his favor, we therefore claim that the motion to arrest judgment under the statute was wholly unauthorized and in this the circuit court and not the common pleas erred.
    Whatever is alleged in arrest of judgment must be such matter as would on demurrer be sufficient to overturn the action or plead. Canal Co. v. Commonwealth, 60 Pa. St., 367.
    And in this, the court does not look beyond the' face of the pleading. Edgerly v. Emerson, 23 N. H., 555; 31 American St. Reports, 514.
    The record shows no plea to the effect that a judgment against one had been- rendered.
    It shows no objection to the entry by the defendant and therefore it is presumed by him to have been made by the consent of the surety and therefore waived.
    The real and only remaining question is: Will a judgment rendered against the principal upon a joint note by default upon the sole answer of the surety thereon after an aswer setting forth a sole defense for him and not for the principal thereon, without ever pleading a bar on account of said judgment be in fact a bar to a further judgment against him in the same action?
    There is no doubt that at common law if the same had been pleaded it would be a bar. Beach on Modern Law of Contracts, 1 Yol., section 687.
    This is changed by statutes. Beach, Sec. 687, 8, 9; Roby v. Ramsberger, 27 Ohio St., 677; Lambkin v. Chrisholm, 10 Ohio St., 45; Hickenman v. Young, 134 N. Y., 170.
    The Ohio law is in sections 5311, 5312.
    It will be borne in mind that it is not the one against whom the judgment was rendered, to-wit, Jones, who complains, but it is Jeremiah Frock, who puts in the plea of prejudice. How does it prejudice him? Hempy v. Ransom, 33 Ohio St., 318.
    The circuit court decided this action upon that decision and we contend most emphatically that the decision by it in this case is not in accord with the previous decisions in the supreme court of Ohio and that the same involves the construction of statutes of this State.
    In this case of Hempy v. Ransom, the judge cites and distinguishes the various cases bearing upon-this question theretofore decided by this court and, if we understand the English language, the same is not in accord with the circuit court in this case but is compatible with the court of common pleas.
    We claim the judgment of the circuit court is in violation of the holding of this court in the case of Yoho v. McGovern, 42 Ohio St., 11. By parity of reasoning how much more would a judgment by default against one maker, the other maker being in court pleading for a separate defense, be no bar to proceeding against such one. We claim this is not only the law, the decisions of this court, but that it is good common sense, the foundation of all law, for a judgment taken in advance against an insolvent principal, while his surety is litigating his separate defenses, might inure to his benefit, his injury never, for while there may be many judgments, there can be but one satisfaction. We therefore submit under the provisions of section 5311 and 5312,3162,3163, 3164, 3165, 3166 and 5366 of the Revised Statutes of Ohio, and the decision of this court, the common pleas was right in its judgment and the circuit, court wrong.

      George Arthur, for defendants in error.
    1. A final judgment in favor of the holders of a joint note against one of the makers is a bar to any subsequent proceedings, or judgment, on the same instrument, against the other makers. This was the rule of the common law; and it is the rule in Ohio, when all of the makers of the note are within the jurisdiction of the court, and are defendants in the action in which the judgment is rendered.
    This principle has been so long settled, and so often recognized and followed by this court, and by all the other courts in this State, that it is not necessary to make an argument, or to cite any authorities in its favor. Nevertheless, it may not be improper to call attention to the following cases which fully sustain the doctrine: Sloo v. Lea, 18 Ohio, 279; Clinton Bank v. Hart, 5 Ohio St., 34; Lampkin v. Chrisholm, 10 Ohio St., 451; Auker v. Adams & Ford, 23 Ohio St., 543; Bazell v. Belcher & Doral, 31 Ohio St., 573; Hempy v. Ransom, 33 Oho St., 317; Reynolds v. Railway Co., 29 Ohio St., 602; Avery v.
      Vansickle, 35 Ohio St., 274; Yoho v. McGovern, 42 Ohio St., 14; Smetters & Harris v. Rainy, 14 Ohio St., 291; Roby v. Rainsberger, 27 Ohio St., 676; Carr v. Beckett, 1 Ohio Circuit Court Reports, 72; Olcott v. Little, 9 N. H., 259; Avery v. Vansickle, 35 Ohio St., 270; Yoho v. McGovern, 42 Ohio St., 11; Carr v. Beckett, 1 Circuit Court Reports, 72, 1 Circ. Dec. 43.
    There is another sound reason why the judgment of the circuit court should be affirmed. Frock alleges in his answer, and the plaintiffs admit in their reply, that he was surety for Jones on the note.sued on.
    Notwithstanding these facts, a yerdict was returned against Frock for the full amount of the plaintiff’s claim; and the court of common pleas, oyerruling Frock’s motion for a new trial, rendered a judgment against him on said yerdict; to which he excepted.
    An agreement between the holders and the principal maker of a note to extend the time of its payment releases the surety, if made without his consent. Wood v. Steele, 6. Wall. (U. S.), 80.
    The alteration of a note which releases all of the parties who do not consent to it may consist in changing (1) its date, or (2) the time of payment, or (3) the place of payment, or (4) the amount of principal to be paid, or (5) the amount of interest to be paid, or (6) the kind of money in which it is to be paid, or (7) the number or relations of the parties, or (8). the character and effect of the instrument as matter of obligation or evidence. Daniel on Negotiable Instruments, 350, 353.
    The new contract, which releases all of the parties who do not consent to it, may be either express or implied. If the facts, proved or admitted, necessarily imply an extension of time for a definite period, the surety who has not consented is as effectually released from his obligation to pay the note as he would be by an express contract having this effect.
    The payment of interest in advance has this effect. Gard v. Neff, 39 Ohio St., 607; Brandt on Suretyship and Guaranty, Sec. 305n; Bank v. Carroll’s Adm’r, 5 Ohio 215; McComb v. Kittredge, 14 Ohio, 351; Jones v. Brown, 11 Ohio St., 601; Vore v. Woodford, 29 Ohio St., 251; Fawcett v. Freshwater, 31 Ohio St., 639; Blazer v. Bundy, 15 Ohio St., 57; Wood v. Newkirk, 15 Ohio St., 295; Osborne v. Low, 40 Ohio St., 347; Bank v. Colcord, 15 N. H., 119; Bank v. Lollins, 13 Me., 202; Bank v. Pierson 30 Vt., 711; Hubbard v. Olden, 22 Kansas, 363; Shaw v. Leigh, 39 Penn., 226.
   Burket, J.,

While this is undoubtedly the general rule, it has no application to a case like the one at bar, wherein one of the makers avers in his answer that he is only surety for his co-defendant, and the plaintiff in his reply admits this to be true. In such cases the plaintiff and the surety by their pleadings concede the contract, joint in form, to be in legal effect several as between themselves. Such pleadings cannot bind the alleged principal, and even if he should be in default,it would be error to render judgment against him, and leave the action to proceed against the surety, and for such error he might have the judgment against him reversed, as was done in Aucker v. Adams, supra. But the surety would have no cause for complaint against such judgment, unless it should appear that his defense was thereby prejudiced, as was held in Hempy v. Ransom, 33 Ohio St., at page 317. The defense set up by Mr. Frock in this case could not be prejudiced by the judgment against Mr. Jones, and therefore the rendition of that judgment was not prejudicial to Mr. Frock, and the judgment rendered against him by the court of common pleas should have been affirmed by the circuit court.

Mr. Frock having pleaded in his answer that he was only surety on the note, which plaintiffs admitted in their reply, and having by that means defended upon the ground that he was released from liability as surety by reason of the extension of time of payment of the note, is estopped after failing in such defense, from changing his position on motion for judgment notwithstanding the verdict, and claiming that he was a joint maker of the note as principal, and that therefore the entire note was merged into the judgment rendered against Mr. Jones. He cannot avail himself of inconsistent defenses under the same pleadings.

There is another reason why the motion in arrest of judgment was properly overruled by the court of common pleas.

Before the adoption of the code in this State, there was what was known as a motion for judgment non obstante -veredicto, which was available to the plaintiff where the defendant put in a defective plea of confession and avoidance, and yet obtained a verdict in his favor. The plaintiff’s case being confessed by the plea, and the matter in avoidance being insufficient, the verdict was wrong and judgment should be entered in favor of the plaintiff notwithstanding the verdict. An instance of such a motion is found in the case of Buckingham v. McCracken, 2 Ohio St., 287.

There was also what was known as a motion in arrest of judgment, which was available to either party for error appearing on the face of the record, which might have been a good ground for demurrer as to the substance, and not merely as to the form.

The names of both of these motions were dropped from the code of civil procedure, and the substance of both was carried into the code, now section 5328, Eevised Statutes, which reads as follows: “When, upon the statements in the pleadings, one party is entitled by law to judgment in his favor, judgment shall be so rendered by the court, although a verdict has been found against such party.”

It will be noticed that a judgment can be rendered in favor of a party under this section when the verdict is against him, only when he is entitled to such judgment “upon the statements in the pleadings;” not upon the pleadings and journal entries or record, but upon the pleadings alone. In Challen v. Cincinnati, 40 Ohio St., 113, 114, it is said: “On such a motion the court could only look at the pleadings.”

There was good reason for confining such motion to the statements in the pleadings, because to such statements the party making them consents, while the record may be, and often is made, in part at least, by order of the court, against the wishes of both parties; or if concurred in by one party, it may fail to show which one concurred, and it would be unfair to hold a party to consequences flowing from 'a record to which he did not consent the same as if he had consented thereto.

The motion for judgment notwithstanding the verdict under this section, is therefore confined to the statements in the pleadings, and what appears on the journal in a former judgment cannot be considered.

It is said in the brief for counsel for defendant in error, that the judgment against Mr. Jones was rendered on motion of the plaintiffs in error. But the record fails to show this fact. The record says: “It appearing to the court that Thomas Jones, who the court finds is the principal upon the promissory note sued upon in this action, was and is in default for answer or other pleadings to the petition, and that the plaintiffs should recover the sum due from him to the plaintiffs on said note, which the court finds is the sum of $187. It is therefore considered by the court that the plaintiffs recover from the defendant, Thomas Jones, said sum of one hundred and eighty-seven dollars with eight per cent, interest, and costs to be taxed.”

There is nothing to show whether this judgment was rendered by the court on its own motion, or on motion of plaintiffs, or of the defendants. For aught that appears on the record Mr. Frock may have induced this judgment to be rendered for the purpose of thereafter availing himself thereof to escape payment of the note. Section 5328 was passed in its present form for the purpose of preventing the possibility of such sharp practice.

The motion in arrest of judgment in this case is based “upon the statements in the pleadings and recordThis is broader than the statute. The court of common pleas in passing upon the motion confined itself to the statements in the pleadings, and very properly overruled the motion, because, upon the pleadings, Mr. Frock was not entitled to judgment in his favor. The circuit court considered the record of the judgment against Mr. Jones, and concluded that the motion in arrest of judgment was well taken, and should have been sustained. In this the circuit court erred.

The judgment of the circuit court will be reversed, and that of the common pleas affirmed.

Judgment accordingly.


author: Minshall, J.

text:
    Ream et al. v. Wolls.

      Act to provide for sale or lease of estates tail — Does not apply, to previously existing estates — Act of April 14, 1859. — Guardian of minor children cannot bind minors or their legal representatives, when.

    1. The act to provide for the sale or lease of estates tail in certain cases, passed April 14, 1859, 1 S. & S., 550, does not apply to previously existing estates. Gilpin v. Williams, 25 Ohio St., "¿83.
    2. An order for the sale of an estate limited to the first taker for life, remainder to her children, created previously to that statute, made in a proceeding commenced by the life tenant, is of no legal force whatever, because the court is without jurisdiction of the subject matter, and may therefore be collaterally impeached, by those who did not, or who could not'by reason of minority, assent.
    3. The fact that the petitioner, the life tenant, was the guardian of her minor children, and as such guardian entered their appearance and consented for them, does not estop such minors, or their legal representatives, on the termination of the life estate, from recovering the possession of the land from a purchaser at the sale or those claiming under him.
    (Decided October 31, 1899.)
    Error, to the Circuit Court of Franklin county.

      E. L. DeWitt, for plaintiffs in error.
    The claim of the plaintiffs in error is that the said action of Sarah T. Ream, in 1864, was unauthorized by law, and that the said sale therein was invalid and void and that the purchaser thereunder acquired no title except to the life estate of Sarah T. Ream. The court did not have jurisdiction to order the sale of the estate in remainder. There was no authority for such sale of life estates until the act of 1859 (56 O. L., 154) was passed. This court has in Gilpin v. Williams, 25 Ohio St., 283; Nimmins v. Westfall, 33 Ohio St., 213, and Oyler v. Scanlan, 43 Ohio St., 308, held that that act was unconstitutional and void as to estates which had vested before the passage of that act. 1 Freeman on Judgments, section 120, citing a number of. authorities and among them is Gilliland v. Sellers, Adm’r, 2 Ohio St., 223.
    A judgment rendered by a court without jurisdiction, is a mere nullity, and may be so held wherever and whenever and in whatever way it is sought to be used as a valid judgment. Towns v. Springer, 9 Ga., 130; 1 Black on Judgments, sections 218, 278, note 186; Adams v. Jeffries, 12 Ohio, 253; State v. McGehan, 27 Ohio St., 280; 1 Freeman on Judgments, section 117. 1 Black on Judgments, section 216; 9 Texas, 313; Reed v. Wright, 2 Greene (Iowa), 15.
    Section 19 of article 1 of the constitution says: “Private property shall ever be held inviolate.” Section 28 of article 2, says: “The General Assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts.”
    Does the fifth section of the act which authorizes guardians to consent to a sale for their wards relieve the act of its unconstitutional character and effect? The section is as follows:
    “Sec. 5. All parties in interest may appear voluntarily and consent in writing to such sale, and testamentary guardians and guardians appointed by court of probate may assent, in the place of their wards to the sale.” 1 S. & 0., 551.
    It may be that it was the legislative intent that this section should apply to estates which had vested before the passage of the act as well as those which vested afterwards. So it was the legislative intent that the entire act should so apply. But this court in the cases above cited hold that such intent over-leaped itself; that the entire act was unconstitutional and void as to estates which had vested before its passage. How, then can any part of the act which attempts to confer powers to sell such estates, which did not exist before the passage of the act, be constitutional and operative?
    If consent could give jurisdiction, consent would give jurisdiction to one court, as well as another, a justice of the peace as well as a common pleas court.
    Consent of parties may in a certain sense give jurisdiction of the person, but it cannot create a jurisdiction over the cause and subject matter, which is not vested in the court by law. Santom v. Ballard, 133 Mass., 464; Brown v. Webber, 6 Cush, 563; R. & Bk. Co. v. Harris, 5 Ga., 527; 1 Black on Judgments, section 217; 1 Freeman on Judgments, section 120; Fleischman v. Walker, 91 Ill., 318; Peak v. The People, 71 Ill., 278; Dicks v. Hatch, 10 Iowa, 380; Moore v. Ellis, 18 Mich., 77: Damp v. Town of Dane, 29 Wis., 419; Molandin v. C. C. R. R. Co., 3 Colo., 173; Id., 275.
    Certainly, before the passage of the act, a court would be without jurisdiction to entertain an action brought to sell such an estate, although the remaindermen were. competent to consent to a sale, and should consent to it. And certainly, if the court should attempt to entertain the case, and order a sale and a sale should be made, and a record made up showing all parties in interest consenting, the purchaser might, perhaps, have a kind of title by estoppel. But certainly not by virtue of the order or judgment of the court.
    Another very cogent reason why the court should adopt my construction in this case is, that the guardian consenting for the minor heirs of Jonathan Ream, was the life tenant, and on whose application the proceedings to sell were had. Her interests were necessarily antagonistic to- her wards, and hence she was incompetent to consent for them. The sale complained of ought to be treated as void on this ground alone. Sargent v. Rowsey, 89 Mo., 662; Marx v. Rowlands, 59 Wis., 110; Havens v. Sherman, 42 Barb., 636; Bloom v. Burdick, 1 Hill, 130; Schneider v. McFarland, 2 Const., 459; 2 Pet., 249; Townsend v. Tallant, 33 Cal., 45; Freeman on Void Judicial Sales, section 17.
    In the said sale by the life tenant, no doubt the estate of the life tenant was sold, and the purchaser and those claiming under him had the right of possession during the life of the life tenant.
    The cause of action of these plaintiffs did not arise until the death of the life tenant. This action was commenced within a very few months after the death of the life tenant.

      J. D. Sullivan, for defendant in error.
    If without regard for any statutory enactment upon the subject, the court could render the order and decree which it did render, in this case, then, though the particular statutory enactment may be unconstitutional, the judgment is valid until reversed in the usual way. 17 Ind., 514; 45 Neb., 781; 80 Mich., 311; 139 N. Y., 337; 13 Ohio C. C., 23, 7 Circ. Dec 1, 5; 38 Conn, 449; 3 Dist. Col. App. Cases, 149-161-2 and 3; 25 Ohio St., 283; 33 Ohio St., 213; Free on Judg., sections 151, 487, 513.
    From 1859 to 1874 nobody challenged the law for the sale of “entailed estate, etc.” (56 O. L., 154), and its amendment. It was enacted by the law-making power of the State; the courts were bound to obey it until challenged, it would be their duty now to obey it unless challenged by the proper parties and in the particular case.
    The guardian acted under section 4 of that law, now section 5806, Revised Statutes of Ohio.
    The fact that since the judgment and decree the law has in some respects been declared unconstitutional, does not render the decree liable to collateral attack. If the law gave the court jurisdiction of the subject matter and it acquired jurisdiction of the parties, what subsequently became of the law is no concern of the purchaser, so far as his rights are concerned. 55 N. J. L., 254; 142 Ills., 388; 8 Wash., 467; 114 Mo., 158; 133 Ind., 147.
    The question here is not an unconstitutional law, but a solemn judgment and decree of the court upon a cause in which it had jurisdiction of the subject matter, and acquired jurisdiction of the parties in the usual way, and which remain on the record of the court in full force 37 Ohio St., 147.
    The plaintiff proved no title whatever, gave no evidence of a deed to Jno. W. Ream from any one, and did not show any title or possession in plaintiffs, or those under whom they claim, nor who gave title to this land. The plaintiff’s title was in issue, and they ought to prove it by competent testimony. 130 Mo., 348; 161 Pa. St., 447; 130 Ind., 297; 92 Tenn., 743; 97 Ind., 463; 98 Ala., 479; 109 Ind., 472; 157 Pa. St., 246.
    And the court will not consider the title or want of title in the defendant until after it ascertains whether the plaintiffs have established title in themselves. 48 N. E. R., 627. Where the title is secured by a judicial sale and confirmation, that may be relied on, and the only question the court will consider is the validity of the judicial sale as the same appears by the record — if the court had jurisdiction of the parties and of the subject matter, that is conclusive. 143 Ind., 467.
    The source of title, therefore, is not the same in the plaintiffs and defendant. 3 Wash. R. Pro., 163; 20 S. Rep., 419; Coke on Litt., 345.
    The defendant traced a successive chain of title up to and including the judgment and decree in 1867 — the foreclosure of the mortgage, which is as far as he ought be required to go in his chain of title. Nevertheless he has also traced his chain of title back to and including the judgment and decree in 1864, under which the entailed estate was sold upon the application of Mrs. Ream.
    Defendant could rely upon either or both as his source of title. The plaintiffs have shown no title in anyone unless in the defendant. 41 Ills., 516; Newell on Ejectment, 487; Free. Void Jud. Shies, Sec. 1.
    It is not contended that the rights of the defendant are not those of an innocent purchaser in good faith, for full value, and without any notice of any . defect either in the law or the court. He was bound to look to the record, but no further. Newell on Ej., 492, 493; 27 Penn. St., 172; Rorer on Jud. Sales, 171; 22 Howard U. S., 14; 42 Ala., 462; 31 Ind., 444; 47 Ills., 227; 26 Ills., 179.
    Where remaindermen are before the court by representation, they are bound by the judgment of the court. 151 Ills., 500; 172 Ills., 349.
    A sale by a life tenant against the remaindermen is at most but erroneous, and valid until reversed by direct proceeding. 8 O. C. C. Rep., 694; 33 Cal., 45.
    Sale by a trustee appointed by the court, is a judicial sale, and binds all parties to the cause. Rorer on Jud. Sales, sections 1-164.
    The mother, it must be admitted, pursued the better remedy in the interest of her children. She could have gone into the probate court as guardian and sold the property, and used all the proceeds for the support and maintenance of her children; but she preferred to save her children the principal for future uses, and expended very little more than the income thereof in their care. It is somewhat analogous to the case reported in 3 Hist. Col. App. Cases, 149, 161,162 and 163.
    Where a statute is merely directory in defining the course to be pursued, if the court has by law jurisdiction of the subject matter of the action, and jurisdiction of the defendant actually attaching in some manner, according to law, and such jurisdiction has been exercised by the court by adjudication, order, or decree, then by intendment of law all questions in regard to such statutory requirements and as to questions necessary to be adjudicated in arriving at the conclusion necessary to be attained, are put to rest by the decision of the court, and are binding as res adjudicata until reversed for error or set aside by a direct proceeding. Newell on Ejectment, 495; 1 Wall., 627; 31 Atl. Rep., 1097; 37 Ohio St., 147; 7 Johns. Ch. Rep., 386.
    If a sale is voidable or irregular, but not void, none but the parties to the proceeding can question it, and then only, in the same case, in the same court, or by appeal or writ of error. 51 Ills., 473; 35 Ohio St., 387.
    In Ohio, if a court of general jurisdiction has jurisdiction of the subject matter of the action it acquires jurisdiction of the parties by their consent. 2 Ohio St., 223; 3 McLean U. S., 587; 6 Tex., 379; 77 N. C., 300; 13 Ills., 432; 7 Cal., 584; 48 Ark., 151.
    A subsisting judgment, though afterwards reversed is a sufficient justification for all acts done under it. Free, on Judg., section 482; 14 Ohio St, 349.
    A judgment against an infant is not void. Free, on Judg., sections 151, 513.
    He cannot impeach it so as to prejudice a bona fide purchaser without notice. 31 Cal., 273 ; 30 Ind., 574; 1 Sand. Ch., 103; 2 Sch. & L., 575.
    Strictly speaking, a sale by order of a court of competent jurisdiction, and title derived therefrom, is not void, unless it is incapable of ratification or confirmation. 72 N. W., 697.
    If jurisdiction is conferred by law, it is sufficient as to the subject matter. 6 Paige Cr. (N. Y.), 95; 20 How. U. S., 541; Newell on Ejectment, 448.
    He had a right to rely upon the record of the court, because; 85 U. S. (18 Wall.), 350; 4 Tex., 162; 10 R. I., 112; 79 Ills., 328; 24 How. U. S., 195; 8 Cow. ( N. Y.), 292; 172 Ills., 361; 173 Ills., 571.
    The character of the estate itself shows the necessity for its sale. It was small and profitless. An investment was necessary to protect it for the maintenance of the widow and minor children. Rorer on Jud. Sales, section 178; 29 Ills., 201; 68 Ills., 588.
    The presumption of law is of the entire regularity of these proceedings by the long acquiescence of the heirs at law. 1 Hill, 131; 22 Am. & Enq., Ency. of Law, 161; 161 Ills., 76.
    Accordingly the presumption will be indulged after twenty years in favor of judicial tribunal acting within its jurisdiction, that all persons had due notice of the proceedings. 1 Greenl. Ev., sections 19, 84; 83 Ala., 528.
    In the case at bar-more than twenty-seven years have elapsed since the decree in foreclosure was rendered and more than thirty since the original decree, in 1864.
    No party plaintiffs appeared in this case either to verify pleadings or give evidence. The question then arises, are the plaintiffs to be deemed as having waived irregularity, if any, in the original decree and sale. Infancy is a personal plea which may be waived. Free, on Judg., section 151.
    Where parties equally under the control of both parties, are not called upon to testify, ordinarily will afford no ground for presumption against either. But where they are peculiarly under the control of one of the parties, the rule is different. 150 Mo., 196; 27 Conn., 318.
    A party’s failure to testify is a pregnant circumstance against him. 130 Mo., 200.
    Infancy is a personal privilege which may, and can be waived. Their silence in this case is deserving the consideration of the court. They have said nothing. 30 Ind., 374.
    If a general guardian appear in court for the minors and file defective pleadings in their behalf, it could only go to the regularity of ths proceedings. The minors being in court by their general guardian, would be bound by the decree of court until reversed, and it would not be necessary to appoint a guardian ad litem for the infants. 21 Ohio St., 651; 1 Hill, 131; 26 Ohio St., 636.
    Upon a petition by an administrator to sell the estate of a decedent, such administrator being also guardian of the minor children of such decedent, he filed on behalf of his wards his written assent thereto, which order was granted without further notice to such heirs. Held, such order of sale cannot be collaterally impeached. 72 Ind., 586.
    Such proceeding is final if it be free from fraud. 67 Ind., 287.
    Is the statute of limitations applicable here, in view of the special statutory proceedings under which the entailed estate was sold. 2. S & C., 944; Rev. Stat. sections 4977, 4978.
    The right of action, if any accrued, was from the time of the right of entry, because from that time others are ousted from all claims. And the extent of the estate conveyed characterizes the entry. 70 Fed. Rep., 539, and cases cited; 67 N. W. Rep., 902.
    It is admitted, however, in the record that the plaintiffs have not been in possession of the property described since the sale of said property in 1864. And there is no showing that they, or those under whom they claim, ever were in possession of said premises. It is also admitted that the defendant, Charles J. Wolls, and his predecessors in title, have been in possession of said property from the date of sale in 1864, down to the present time. His title ought now be regarded to be complete as an adverse occupant. 68 N. W. Rep., 494; 50 Ohio St., 1; 49 Ohio St., 137; 37 Ohio St., 583; 6 Hill, 177.
    Courts of record, in Ohio, having authority over the subject matter, are competent to decide upon their own jurisdiction, and to exercise it to final judgment without setting forth upon their records the facts and evidence upon which their decision is based. Their records are absolute verities, not to be impugned by averment or proof to the contrary. By the great weight of authority this rule appears to be general throughout the country, and it must be conceded to be the rule in England. 2 How. U. S., 319; 2 B. & Ad., 367; 1 Lev., 309; Cm. Jac., 244.
   Minshall, J.

The suit below was commenced by Sarah J. Beam and others to recover possession of certain described lands from the defendant, Charles J. Wolls, claiming to be the owner thereof, and that the defendant unlawfully deprives them of the possession. The defendant answered denying the title of the plaintiffs and pleading the statute of limitations; and, as a distinct defense, relies upon a sale of the land made in 1864, under the act of 1859, authorizing the sale or lease of estates tail in certain cases; from the purchaser at which sale, he, by intermediate conveyances, derives title to the land in question. The principal, and I may say, the only real question in the case, arises upon the validity of the sale made under this statute. The cause, on the issues joined, was tried to the court, a jury being waived. The court found for the plaintffs and rendered judgment in their favor, after a motion for a new trial had been made and overruled. The defendant took a bill of exceptions containing all the evidence, which was made a part of the record. On error the circuit court reversed the judgment. The principal error relied on, and for which the circuit court reversed the judgment is, that the common pleas erred, in holding the proceedings for the sale of the entailed estate void.

The facts material to a determination of the case are not in dispute: In 1854 Jonathan Ream, the father of the plaintiff, Sarah J. Ream, and grandfather of the other plaintiffs, died testate, seized in fee of the premises in controversy. By his will he left a life estate in the land to his widow, Sarah T. Ream, and the remainder in fee to his children, the survivors and representatives of whom are these plaintiffs. In his will he named his wife executrix of his will and guardian of his children. The will was admitted to probate February 1, 1855, and Sarah T. Ream was by the probate court appointed guardian of her children and qualified as such. In April, 1864, Sarah T. Ream, the life tenant, commenced an action in the court of common pleas of Franklin county to sell the land, her life estate and the remainder of the children, ostensibly under the act of 1859, 1 S. & C., 550; and in that action the premises were sold. At the time of the commencement of the action, and at the sale, two of the children, Nancy A. Ream and Sarah J. Ream, were minors under 14 years of age, the other children having died without issue, or their place of residence being unknown. The plaintiff in the action, as guardian of Nancy A. and Sarah J. Ream, entered their appearance to the action, waived process and consented to the sale. Notice of the pendency of the action was served on the minors in Butler county, Ohio. No guardian ad litem was appointed, and no answer was filed by or for them. The reason for the sale was stated to be, that it would be for the benefit of the petitioner, and do no substantial injury to the remaindermen. In August, 1864, the premises were sold, and the defendant, as before stated, claims title through the purchaser at that sale. Sarah T. Ream, the life tenant, died in September, 1890, and this suit was commenced February 5, 1891.

We are of the opinion that the judgment of the circuit court should be reversed. There was no authority for the court to make the order under which the sale was made. Ostensibly the sale was ordered in a proceeding under the act of 1859, providing for the sale or lease of estates tail in certain cases, 1 S. & C., 550. But the estate in this case was created before that act took effect, and can derive no aid whatever from it. It stands as if such statute had never been passed. Gilpin v. Williams, 25 Ohio St., 283. It was here held that the statute is not a remedial one, and to give it a retroactive effect on existing estates would impair vested estates in remainder and reversion, and hence impair the right of private property, which, under our constitution, cannot be done. We suppose that no one would assert that, prior to the enactment of the statute, a vested remainder could, at the suit of the life tenant, have been divested by the judgment of a court, simply for the purpose of making a better investment for that tenant, although it would work no substantial injury to the remaindermen. Whether it would or would not be to the injury of the latter estate, is not the question. In Gilpin v. Williams, McIlvaine, J., in replying to the suggestion that it would be no injury to the owner of the future estate, that it would simply change it in kind, and when so changed would remain to the same uses, said: “The suggestion is of no avail. The proceeding seeks to divest them (the remaindermen) of their estate in the land; and it is that estate, their property in the land, which is declared to be inviolate;”, and further, that “to enforce a sale would be nothing more and nothing less than the appropriation of the estate of one person for the benefit of another.”

The statute then, having no application to the case, the court had no jurisdiction of the subject matter, and the judgment rendered in the premises was no judgment at all, and furnished no authority for the sale. The jurisdiction the court had, was a special one, conferred on it by statute, and limited by the constitution and judicial construction, to estates created after the statute took effect; hence, as the estates in this case had been created before its adoption, the court had no jurisdiction of the subject of the suit, and what was done may be collaterally attacked.

But it is argued that this sale is to be regarded as one made by the consent of the parties, because it appears that the petitioner, the life tenant, was the guardian of the minor children, and that she consented for them, and that the plaintiffs below are simply one of these children and the children of the deceased one. It might be a sufficient answer to this to say, that consent never confers jurisdiction over the subject matter of a suit; so that any order or judgment made by the court in that proceeding could not be given the effect of a judicial order or judgment. It has no other or greater effect than if the parties had referred the question of a sale to the judge as an individual, and he had given it as his opinion that a sale would be proper and might be made. Still as parties may be bound by consent, where they would not otherwise be bound, it is proper to inquire what sort of consent was given in this case. The parties against whom this claim is made were minors at the time, of tender years. Their mother was their guardian and instituted the suit in her own interest for the sale. No guardians ad litem were appointed. The record simply shows that she consented for them. It is claimed that she had the power to do this under the fourth section of the act. Power is there given to testamentary guardians and those appointed by the probate court to do so. But it does not follow from this that a guardian may assent for his ward in a proceeding commenced by himself and in his own interest, and, necessarily, as in this case, occupies a position ad-adverse to his ward. It would seem, on principle, that, in such case, to warrant a guardian to consent for his ward, his interest should not be opposed to his duty, as it clearly is, where the proceding is commenced by the guardian in his own interest as tenant of the life estate. But the most effective answer that can be given to this is, that the section referred to only applies to proceedings commenced for the sale of estates created after the statute took effect; and can in no way aid such as were had for the sale of previously existing estates.

As to tlie plea of the statute of limitations, it is only necessary to observe that the estate of the life tenant did not terminate until 1890, and the suit was commenced in a short while thereafter.

Judgment reversed and common pleas affirmed.