text:
    John Benson and others v. Jonathan Cilley and others.
    In a proceeding, on the petition of an administrator, to subject lands of a decedent to the payment of debts, under the statute of 1831, where a guardian ad liiem was appointed for the infant defendants, and, on their behalf, acknowl- . edged service of process for their appearance — Held:
    That in so far as the proceeding is of an adversary character, that character was given it by the act of 1821, defining the duties of executors and administrators.
    The construction heretofore given to that act, by repeated decisions of this court, having become a rule of property, should now be followed.
    It must, therefore, be held, that the want of personal service of a subpoma upon the infant defendants, does not, under the act of 1831, affect the jurisdiction of the court, or render void the order of sale.
    In Chancery. Reserved in tbe District Court of Hamilton county.
    Tbe bill is filed by tbe beirs at law of Matthew Benson, deceased, against tbe beirs at law of William Miller, deceased, and Rensselaer W. Lee and Jonathan Cilley, to redeem certain mortgaged premises in Cincinnati, in tbe possession of Cilley.
    Tbe material facts are as follows:
    On tbe 22d day of November, 1831, Matthew Benson gave a mortgage on tbe premises in controversy to William Miller, to secure tbe payment to him of a debt of three thousand dollars, three years from date.
    During tbe year 1832 Matthew Benson died, in possession of tbe premises, leaving tbe complainants bis beirs at law.
    On tbe 16th of August, 1832, Samuel Lewis, as administrator of Matthew Benson, filed a petition in tbe court of common pleas, stating that tbe personal property of tbe estate was but $427; that $600 bad been allowed to tbe widow for her years support; that tbe deceased owed Miller tbe $3,000, and also other debts specified; and prayed for a sale of tbe property.
    This administrator’s petition makes Mary Benson, tbe widow, and her six children, tbe present complainants, defendants. It states that the children are minors, and prays for a subpoena against all.
    A subpoena was accordingly issued on the 16th day of August, 1832, to the sheriff, commanding him “to summon Mary Benson, widow, and John Benson, Martin Benson, Margaret Benson, James Benson, G-eorge Benson, and Charles Benson, children and heirs of Matthew Benson, deceased, by Nathaniel Wright, their guardian, to appear before the judge of the court of common pleas at Cincinnati, forthwith, to answer a petition exhibited against them by Samuel Lewis, administrator of Matthew Benson, deceased, for sale of certain real estate, and this they shall in no wise omit,” etc.
    On said writ was the following indorsement of service:
    “I hereby acknowledge service of the within summons for all the defendants, as guardian ad litem, for the minors, and as attorney for the. widow. August 16th, 1832. Nathaniel Wright, guardián ad litem to John Benson, Martin Benson, Margaret Benson, J ames Benson, George Benson and Charles Benson, minor heirs aforesaid.”
    After these proceedings an order of sale was entered, and the property sold to Miller, the mortgagee. The sale was confirmed and deed made. Miller conveyed the property to Lee, and Lee to Cilley.
    On the 9th of January, 1851, the complainants filed their bill setting up the mortgage given by their father to Miller, alleging that Miller took possession under it, and ask to redeem, and for an account of rents and profits, etc.
    The defendants set up as a defense, the record of the administrator’s sale.
    The complainants claim that this sale is void, for the reason that they, the infant heirs of Matthew Benson, were never before the court, and that the court had no jurisdiction over them.

      M. W. Oliver, for complainants:
    As it abundantly appears, on the face of the record offered by respondents, that these complainants were not served with process, as required by the act of 1831, it follows that these heirs of Matthew Benson were not before the court — had no day in court.
    It was necessary that the heirs of Benson should be brought into court, in the manner required by the act of 1831, before the court acquired jurisdiction to order the administrator to sell their interest in the land sought to be sold. Or, in other words, the court had not so far jurisdiction, under the act of 1831, by the mere filing of a petition praying a sale, as to enable it to render a decree, binding the interests of the heirs, without bringing them before the court.
    From a review of the cases arising under the act of 1824, viz : Ewing et al v. Higby, 7 Ohio Rep. 198; Ewing v. Hollister, 7 Ohio Rep., pt. 2, 138; Robb v. Lessee of Erwin, 15 Ohio Rep. 689; Snevely and wife v. Lowe, 18 Ohio Rep. 368; and Sheldon v. Newton, 3 Ohio St. Rep. 494, it may be clearly seen that while it has been uniformly held under that act, that personal service on the infant heirs was not necessary to give the court jurisdiction, but sendee on the general guardian, or guardian ad litem, was sufficient— yet these decisions have all been expressly placed on the ground, that that statute did not direct the manner of service, and, therefore, that the manner of service was left to the sound discretion of the court, and if they, in the exercise of that discretion, adopted a mode of notifying the heirs in itself reasonable and proper, and that did not defeat the intention of the act, in such case the requirements of the statute were complied with. And even under this act of 1824; the court, in the last decided ease, derive great aid and comfort from the application of the maxim, stare decisis.

    The case of Adams v. Jeffries, 12 Ohio Rep. 253, was a case, and the first reported case, arising under the act of 1831, and is directly in point to show that the proceedings now sought to be set up as a bar to the relief we ask, aré absolutely void, and not simply voidable; that the provisions of this act not having been complied with, as to the matter of notice, the court had no jurisdiction.
    This decision is supported by every case, since decided by that court, having any bearing on the point under consideration. See Daniels v. Stevens, 19 Ohio Rep. 238; 15 Ohio Rep. 700, 701; Sturges v. Longworth, 1 Ohio St. Rep. 553, 554.
    The case of Moore v. Starks, 1 Ohio St. Rep. 369, is in point, and is conclusive as to what service upon an infant is requisite in an ordinary chancery proceeding under the statute.
    The proposition is not true, that in proceedings that are strictly in rem, the court has jurisdiction without notice, actual or implied, to the parties in interest. I claim—
    1st. That by the general law of the land, “ before the rights of any individual be bound by a judicial sentence, he shall have notice, either actual or implied, of the proceedings against him or his estate;” and this equally, whether the proceedings be in rem or in personam. The Mary, 9 Cranch 144; Hollingsworth v. Barbour et al., 4 Peters 467; Bradstreet et al v. Neptune Ins. Co., 3 Sumner 600; Boswell’s lessee v. Otis et al., 9 How. 350; Borden v. Fitch, 15 Johns. Rep. 141; Kinderhook v. Claw, 15 Ib. 538; Mills v. Martin, 19 Johns. Rep. 33; Corliss v. Corliss, 8 Verm. Rep. 389; Wright v. Douglass, 3 Barb. 555, 574-5; Woodruff v. Taylor, 20 Verm. Rep. 75; Bowler v. Eldridge, 18 Conn. Rep. 10; 5 Geo. Rep. 202.
    2d. That when the legislature prescribes the way in which this notice shall be given, no other mode of giving notice can be adopted by the practice of the courts; but the legislative mode must be substantially followed. Moore v. Staep, 1 Ohio St. Rep. 369.
    3d. That if in any statutory proceedings, the - court acquires jurisdiction before notice, the reason of this is to be found, not in the fact that the proceeding is in rem, but in this, that the legislature, in establishing the proceeding, has expressly provided for the attaching of jurisdiction before the nptice is to be given.
    4th. That in every statutory judicial proceeding, where notice to the party to be bound is expressly required to be given, the giving of the required notice is essential to the jurisdiction of the court, unless it shall affirmatively appear that such was not the intention of the legislature. 1 Hill’s Rep. 131; 1 Brock. Rep. 324; 1 Barb. 286-90; 5 Geo. Rep. 202.
    5th. That in the proceedings of an administrator to obtain an order for the sale of real estate, under the act of 1831, the statutory notice is essential to the jurisdiction of the court to bind the heir; for it nowhere, in that act, affirmatively appears that the court has any power to perform any judicial act prior to the giving of the notice required.
    But are these proceedings of administrators, under the act of 1831, properly pi’oceedings in rem ?

    The true view of the matter is this: Prior to the act of February 11, 1824, this proceeding, though not strictly in rem, was strictly ex parte. By that act it was made to be adversary. But as the statute did not point out the manner in which the adversary should be brought into court, and jurisdiction over his person acquired, it was left to the practice of the court; and hence, if what the courts might deem a reasonable notice was given, it was sufficient. By the act of 1831 the proceeding is not only adversary, but the mode of bringing the adversary defendant into court is prescribed; and this being so, no other mode can be resorted to, but the statutory mode must be pursued; and when this was not done, the court acquired no jurisdiction to bind the heir. Moore v. Starks, 1 Ohio St. Rep. 369.
    N. T>. J. 11. Handy, also for complainants:
    Though the proceeding.of the administrator to sell an intestate’s real estate, to meet the debts, is not strictly a chancery proceeding, yet the act of 1831, giving power to administrators to sell, expressly points out the method in which alone they can exercise this power. Eor, be it remembered here, that administrators at common law had no power whatever over real estate.
    Now this act of 1831 explicitly commands, that the infant heirs shall be made parties in the same method as it is required to be done in chancery. How that is done the case of Moore v. Starks, 1 Ohio St. Rep. 369, is clear and conclusive. All proceeding by a court which has not legally obtained jurisdiction of the subject matter or the parties, is absolutely void and null, and can be used for no purpose whatever. Lessee of Adams v. Jeffries, 12 Ohio Rep. 253; Borden v. Fitch, 15 Johns. Rep. 121; Mills v. Martin, 19 Johns. Rep. 33; Latham v. Edgarton, 9 Cow. 227; Sumner v. Parker, 7 Mass. Rep. 79; Smith v. Rice, 11 Mass. Rep. 507; Moore v. Starks, 1 Ohio St. Rep. 369; Daniels v. Stevens’s Lessee, 19 Ohio Rep. 238; Parker v. Miller, 9 Ohio Rep. 110; Thatcher v. Powell, 6 Wheat. Rep. 119, When courts acquire an authority, not after the common law, by statutory provisions, over property whose owners are required to be before them as adversaries, they act as tribunals of special and limited jurisdiction. Burd v. Susquehanna Bridge and Bank Co., 6 Harr. & John. Rep. 130; Thatcher v. Powell, 6 Wheat. Rep. 119; Denning v. Corwin et al., 11 Wend. 647; Smith v. Fowle et al., 12 Wend. 9; 7 Mass. Rep. 79; 11 Mass. Rep. 507. It is necessary that such tribunals show they act within the scope of their power. Lessee of Adams v. Jeffries, 12 Ohio Rep. 272.
    Nor will we be excluded from showing that jurisdiction was never acquired by the court. Slocum v. Wheeler, 1 Conn. Rep. 429; Mills v. Martin, 19 Johns. 33; Hyde v. Stone, 9 Conn. 230; Parker v. Miller, 9 Ohio Rep. 116.
    We insist, therefore, that as these complainants never were before the court, on the application of the administrator to sell their real estate, the whole proceeding, as to them, is null and void. That, therefore, the record sought to be offered in this ease, is incompetent as against them, and should be excluded.

      Worthington § Matthews, for Cilley, argued—
    That the proceeding of an administrator to sell the real estate of his decedent, under the act of 1831, as under previous statutes on the same subject, is a proceeding in rem, and not in personam; that the jurisdiction of the court attaches, upon the filing of the petition setting forth the facts which authorize a sale, based upon the circumstance that the property is subject to its process; that although the statutes of 1824 and 1831, require the heir or other person owning the inheritance, to be made party defendant, the giving of notice, though prescribed by the law, is not necessary to the jurisdiction; and that, therefore, improper service, or the want of service, while it would be an irregularity and an error, rendering the proceedings liable to reversal, in a direct proceeding instituted for that purpose, does not oust the jurisdiction of the court, and make its order and the sale null and void.
    That this proposition is fully supported as to proceedings governed by the act of 1824, by the cases of Ewing’s Lessee v. Higby 7 Ohio Rep. 198, part 1; Ewing v. Hollister, 7 Ohio Rep. 138, part 2; Robb v. Irwin’s Lessee, 15 Ohio Rep. 689; Snevely v. Lowe, 18 Ohio Rep. 368, and more particularly by the recent case of Sheldon v. Newton, 3 Ohio St. Rep. 496.
    . That in respect to the point now in controversy, the statutes of 1824 and 1831 were, in substance, alike, the substance of each being, that the heir or other owner should be made a party. They differ only in matter of detail and direction.

      Edward Mills, for defendant Este and heirs of Miller, argued—
    1. That courts of common pleas, in the exercise of powers conferred on them by statute, to sell the lands of a decedent, on the petition of the administrator, are to be considered as courts of general, and not of special and limited jurisdiction; and that all rules of construction and presumptions arising in favor of courts of general jurisdiction, apply equally to the records of such proceedings. Lessee of Goforth v. Longworth, 4 Ohio Rep. 129; Ludlow’s heirs v. Wade, 5 Ohio Rep. 494; Ewing’s Lessee v. Higby, 7 Ohio Rep. 200; Robb v. Irwin’s Lessee, 15 Ohio Rep. 697; Snevcly and wife v. Lowe, 18 Ohio Rep. 368; Sheldon’s Lessee v. Newton, 3 Ohio St. Rep. 496.
    The same rules have uniformly, in this state, been applied to the records of sales made by guardians — of sales made in proceedings in partition, and sales made in attachment. Lessee of Glover v. Ruffin, 6 Ohio Rep. 255; Gaudy’s Lessee v. Shank, 8 Ohio Rep. 415; Lessee of Stall v. Macallester, 9 Ohio Rep. 19; Lessee of Maxom, v. Sawyer, 12 Ohio Rep. 195; Smith v. Pratt et al., 13 Ohio Rep. 550; Lessee of Payne v. Mooreland, 15 Ohio Rep. 435; Lessee of Cochran’s heirs v. Loring, 17 Ohio Rep. 430.
    2. "When the records of a court of general jurisdiction do not show affirmatively, that the defendants named in the proceedings were not served, the law, in a collateral proceeding, will presume that they were served; and this presumption can only be overcome by the introduction of positive testimony that they were not served. Wayre v. Zane, 3 Ohio Rep. 305; Lessee of Ewing v. Higby, 7 Ohio Rep., pt. 1, 198; Robb v. Irwin’s Lessee, 15 Ohio Rep. 699; Lessee of Morgan v. Burnett, 18 Ohio Rep. 546; Reynolds v. Stansberry & Burch, 20 Ohio Rep. 349; Lessee of Moore v. Starks, 1 Ohio St. Rep. 369. See also Carrington v. Brent, 4 McLean 174; Bank United States v. Cochran, 9 Dana 395, and 4 Dana 435; Horner v. Doe, ex dem. Indiana, 1 Carter 130, and a large number of cases there collected.
    3. That the record of a court of general jurisdiction being silent as to who moved the court to appoint a guardian ad litem, this court, in a collateral proceeding, will presume that the minors were personally present, and that the appointment was made at their request. Thompson v. Doe, ex dem. Hare 8, Blackf. 336; 1 Carter 130.
    , 4. That if the record had shown that the court had appointed the guardian ad litem on the motion of the plaintiff, and even had the proceedings been in chancery, yet that under the chancery practice, as it existed in Ohio, an appearance of a guardian ad litem, without service on the infants, would only render the proceedings voidable, not void. Massie’s heirs v. Donaldson, 8 Ohio Rep. 377.
    5. That proceedings by an administrator before a court of common pleas to sell land of a decedent, under the act of 1831, are in rem; and that the court had jurisdiction of the subject matter as soon as the petition containing the proper averments was filed, and no irregularity in the service of process, and no want of service can be taken advantage of in a collateral proceeding. Ludlow’s heirs v. Johnson, 3 Ohio Rep. 553; Ewing’s Lessee v. Hollister, 7 Ohio Rep., pt. 2, p. 141; Robb v. Irwin’s Lessee, 15 Ohio Rep. 689; Snevely and wife v. Lowe, 18 Ohio Rep. 368; Moore’s Lessee v. Starks, 1 Ohio St. Rep. 369; Sheldon’s Lessee v. Newton, 3 Ohio St. Rep. 494.

      Haines, Todd $ Lytle, for defendants Lee and Cilley, argued—
    1. That the record of the administrator’s sale was a valid record when viewed as a chancery proceeding. The service upon the guardian ad litem was in accordance with the usages of courts of equity. Thompson v. Jones, 8 Ves. 141; Baker v. Holmes, 1 Dickens 18; Smith v. Marshall, 1 Atk. 70; Kirwan v. Kirwan, 1 Hogan 264. That it nowhere appears in this record, that these infants were not served with process; and all things must be presumed to have been done rightly by a court of general jurisdiction. Sheldon’s Lessee v. Newton, 3 Ohio St. Rep. 496; Lessee of Nelson v. Moon, 3 McLean 321.
    2. That before the statute of 1824, these proceedings to sell a decedent’s land, were ex parte and in rem; that after the passage of that act, though no longer entirely ex parte, they were still in rem. That if the proceedings were in rem, under the act of 1824, they were equally so under that of 1831. For the provision giving the court jurisdiction is entirely similar to that of 1824.
   Scott, J.

The defendants in this case interpose, as a bar to the relief sought by the complainants, the proceedings of the court of common pleas of Hamilton county, based upon the petition of the administrator of Matthew Benson, the father of complainants, praying for the sale of the real estate in controversy, in order to pay debts, and resulting in a sale to Miller, the original mortgagee, under whom the other defendants claim. This petition was filed in 1832, and the proceedings under it were, therefore, governed by the act of 1831, “defining the duties of executors and administrators.” 3 Chase 1782. The 31st section of that act provides:

“That when the executor or administrator shall apply to the court, under this act, for authority to sell the real estate of his testator or intestate, the application shall be by petition, to which the widow, (if any there be,) and the lawful heir or heirs, or the person or persons, having the next estate of inheritance, of the testator, shall be made defendant thereto, and the defendants shall be served with process, or otherwise notified of the pendency of such petition, in the manner prescribed in the act directing the mode of proceeding in chancery,” etc.

As to tbe mode of serving process, the chancery practice act, here referred to, provides:

“That every subpoena, or process for appearance, shall be served on the person to whom it is issued, or a copy thereof left at his dwelling house or usual place of abode.”

The record, which is offered as a bar in this case, shows affirmatively, that the process for the appearance of the infant defendants was served upon their guardian ad litem, who, in that capacity, acknowledged service for them. And, it being thus shown how they were brought into court, there is no room for the presumption that they were otherwise served with process. Hence the question arises whether, under the act of 1881, the court, without service of process upon the infant defendants personally, or by copy, could acquire jurisdiction of the ease. Eor if the court acted without jurisdiction, the whole proceeding was a nullity; but if jurisdiction was acquired, the order of sale was made in the exercise of a power conferred by law, and the proceedings cannot be collaterally impeached.

In determining this question, it is proper to ascertain, as well as we can, how far it is affected by the previous decisions of this court and its predecessor, and to what extent it still remains an open one.

Prior to 1824, the proceedings by executors and administrators, to subject the real estate of a decedent to the payment of debts, were wholly ex parte. The jurisdiction of the court attached upon the filing of the proper petition. The proceeding was strictly in rem, and no notice was required to be given to the heirs, or other interested parties.

The act of 1824 made no substantial change in the proceedings, except by providing that “ the lawful heir, or the person having the next estate of inheritance of the testator or intestate,” should be made defendant to the petition. In considering the effect of this change in the law, it was said by Judge Hitchcock, delivering the opinion of the court in Robb v. Lessee of Irwin, 15 Ohio Rep. 698 : “ It is apparent that this law leaves the subject-matter of the sale of a decedent’s land, just where.it was before — within the jurisdiction of the court of common pleas, as a court of probate. If before, the proceedings' were in rem, they are still so; for although the law requires the heir to be made a defendant, still there can be no action as against him — no judgment, no decree. The only order which can be made by the court, operates upon the land alone. It may be decreed to be sold.” And in Sheldon v. Newton, 3 Ohio St. Rep. 494, Judge Ranney, with clearness and force, expresses the same opinion, that the proceeding authorized by the act of 1824 was essentially a proceeding in rem, and that an omission to give notice to the heir does not affect the jurisdiction of the court, but goes only to the regularity of the proceeding. These opinions, though they are not conclusive authority, are at least entitled to respect.

In Snevely v. Lowe, 18 Ohio Rep. 368, one of the minor heirs was not even named in the petition, nor elsewhere throughout the proceeding. Two other minor heirs were named in the petition. A guardian ad litem was appointed for the minor heirs of the deceased, without naming any of them; and this guardian, as such, acknowledged an appearance. It was held that the order of sale was not void. "Unless the proceeding be regarded as in rem, it would be difficult, if not impossible, to sustain this decision.

The requirement of notice to the heir does not necessarily imply that such notice is a prerequisite to the acquiring of jurisdiction. On the contrary, it was held in Paine's Lessee v. Mooreland, 15 Ohio Rep. 435, that proceedings in attachment were in rem, and that the seizure of the property attached, gave jurisdiction to the court prior to, and independent of, the notice which the statute imperatively required. And yet, in the former mode of proceeding by attachment, the plaintiff, if successful, recovered a judgment in personam upon a claim which, prior to the seizure and judgment, was no lien upon the property attached.

"Upon whatever grounds the decisions may have been placed, it has uniformly been held that, under the law of 1824, actual notice to the infant heirs was not essential to the jurisdiction of the court. Ewing's Lessee v. Higby, 7 Ohio Rep. (pt. 1) 198; Ewing v. Hollister, Ib. (pt. 2) 138; Robb v. Irwin, 15 Ohio Rep. 689; Lewis v. Lewis’s Adm'r, Ib. 715; Snevely v. Lowe, 18 Ohio Rep. 368; Sheldon’s Lessee v. Newton, 3 Ohio St. Rep. 494. The uniformity of this line of decision was distinctly admitted, and its propriety left unquestioned, in the case of Moore v. Starks, 1 Ohio St. Rep. 369, where the court was careful to distinguish between this class of cases and the proceeding in chancery then under consideration. Yet the act of 1824 directed that the heir should be made a defendant to the petition, and this could, in no fair and substantial sense, be done without notice to him. Indeed, it has never been doubted, that the intention of the law was to give the defendant notice, and afford him a day in court.

These decisions can all be supported, on the ground that the proceedings were still so far in rem, that the want of notice did not affect the jurisdiction of the court; some of them could scarcely be otherwise maintained, upon principle.

But the intrinsic character and nature of the proceeding remained unaffected by the act of 1831. It required notice to the heir, but so did the act of 1824. In addition to this, it prescribed the mode in which the notice should be given; and this was the only change. But the mode of giving notice could not possibly affect the jurisdiction, unless the notice itself were an essential prerequisite; and it is certain that neither of these acts expressly made it so. It is true, that in Lessee of Adams v. Jeffries, 12 Ohio Rep. 253, which was the case of a sale under the act of 1831, it was held that, without notice to the heirs, the whole proceedings were void. But this decision was not based on any difference between the requirements of the act of 1824 and that of 1831. On the contrary, the reasoning and principles upon which it proceeds, are equally applicable to both acts, and were, in fact, so applied by the court. That case, therefore, stands alone, in conflict with both prior and subsequent decisions. But the decision itself might be affirmed without affecting the present case; for the record, in that case, commenced with the order of sale, without showing any petition filed, or other proceedings anterior to the order.

If these were even to be regarded as proceedings in chancery, it has been more than doubted by some of the ablest jurists of whom this state can boast, whether infants may not be made parties to a suit in chancery, so as to be bound by a decree, without personal service, merely hy the appointment and appearance of a guardian ad litem. Judge Hitchcock, in Robb v. Irwin’s Lessee, said: “ I apprehend it will he found, upon examination, that decrees entered under such circumstances are generally, if not universally, holden to be voidable, not void. Such, I have no doubt, is the weight of authority.” And so it was held in Lessee of Nelson v. Moon, 3 McLean’s Rep. 321, decided in this state in 1843. In England, courts of chancery have always exercised a discretion in ordering substituted service, according to the exigencies of the case, upon infant defendants. Smith v. Marshall, 2 Atk. 70; Thompson v. Jones, 8 Ves. 141; Baker v. Holmes, 1 Dickens 18. The chancery practice act of 1831, gave the courts “ power to make rules and regulations for the government of proceedings had before them;” and provided that they should, “ in all things, be governed by the known usages of courts of equity, except where it may be otherwise provided by law.” The act authorized constructive notice by publication, in the case of non-residents, and no one has ever doubted that, under it, service of process might be waived, or an appearance be voluntarily entered. The construction given to this act by the courts, as shown by the early practice under it, prevalent throughout the state, is entitled to consideration and respect. What that practice was is shown by the statement of Judge Grimke, in 1838, in the case of Massie’s heirs v. Donaldson, 8 Ohio Rep. 381. He says: “ In Ohio, it has not been the general practice to make service on the infants. A very loose mode of doing business has universally prevailed. This is greatly to be regretted, since as much mischief might be created by returning to the old and regular practice, as has been occasioned by the original departure from it. The practice of every court may be said, sometimes, to constitute the law of the court; and perhaps even this practice may be entitled to respect, if it is the creature of inveterate usage.”

Rut the petition of an administrator for the sale of land is not a proceeding in chancery; nor have the rules governing courts of chancery ever been rigidly applied to such a proceeding, under the law of 1824. The practice of the courts was known not to be uniform throughout the state, and public policy required that this variant practice should be regarded with indulgence. The interests of heirs required that all reasonable security should be afforded to titles acquired by administrators’ sales, in order that the property might sell for its value. Looking, then, to the character of the proceeding, as at least quasi in rem, to the different modes of practice adopted under the statute regulating it, and governed, doubtless, in a high degree, by considerations of public policy, it has been held, as we have seen, from time to time, both by this court and its predecessor, that irregularities in the mode of effecting the appearance of infant defendants, and even the entire want of notice to them, would not affect the jurisdiction of the court in the case, though it might render the proceedings voidable. Such, at least, are the decisions under the law of 1824, which, as we have seen, required notice, equally with the law of 1831. The proceeding now under consideration was had soon after the statute of 1831 took effect, and before any uniformity of practice had been secured. The statute of 1840, for the first time, made the proof of proper notice to the defendants, a condition precedent to any action of the court in such a case, and prohibited the waiver of notice by a guardian ad litem in behalf of his wards. The statute having been, until that time, silent on the subject, a previous practice to the contrary, in these particulars, would seem to have been thereby recognized and prohibited in the future. Personal service of process was thus made a condition indispensable to the exercise of jurisdiction, and the practice was made uniform throughout the state.

In so far as the proceeding is of an adversary character, that character was given to it, as we have said, by the act of 1824, not by that of 1831. But this court has hitherto refused to say that, under the former act, the want of notice rendered the whole proceeding void. We are now asked to say so. Whatever our opinion might be, if the question were res integra, and admitting, as we do, the just force of the arguments presented by counsel for complainants, yet we must bear in mind, that nearly twenty years have passed since the law of 1831 was superseded. The opinions of this court, and the decisions referred to, have justly been regarded as a rule of property during that time. To disregard those opinions, and overrule the decisions, on the faith of which men have so long acted throughout the state, would produce incalculable hardships. Wholly to disregard such consequences, where the protection of substantial rights demands no such boldness, would evince, on the part of the court, recklessness rather than courage.

Do the facts of this case indicate that substantial wrong and injustice have been done to these complainants ? ' The record and evidence on file show that their father died in 1831, leaving six children, of whom the eldest was under ten years of age. The personal property of his estate amounted to $427, and the sum of $600 was set olf for a years support of the widow and these children. The real estate now in controversy, was under mortgage to secure a debt of $3,000. To discharge this and other liabilities, and provide for the year’s support of the widow and these complainants, her then infant children, it was, of course, necessary to sell real estate. A petition was filed, for that purpose, in 1832, by the administrator. The complainants were all named in it, as the minor children and heirs of the deceased; and for the protection of their rights the court appointed a reputable guardian ad litem,the chosen and trusted attorney of their mother, who was doubtless nominated by her for that purpose. Upon consultation with her, and at her instance, he acknowledged service of a subpcena on behalf of the children. The proper showing having been made, the court ordered a sale. The property was appraised, advertised, and sold; and the whole proceedings were examined, approved, and confirmed by the court. The proceeds of the sale were applied to the support and maintenance of the complainants, and the discharge of the debts, which were a lien upon the property paramount to any title of theirs. All this seems to have been done fairly, and was demanded by the necessities and interests of these complainants. More than a quarter of a century has since elapsed, and this property has largely increased in value; and we are now asked to divest the titles of bona fide purchasers, and declare all these proceedings void, because that which, under the circumstances, could have been but a formal ceremony, was dispensed with. Such a claim is surely strictissimi juris, and can require, at our hands, no deviation from precedent. We think the bill must be dismissed.

• Swan, C. J., and Brinkerhoee, Sutlife and Peck, JJ., concurred.


source: Caselaw Access Project

author: Peck, J.

license: Public Domain

text:
    The State of Ohio, ex rel. The Attorney General, v. Frederick Cogswell.
    Where a vacancy occurred in the office of probate judge of Pickaway county more than thirty days before the next annual election at which a probate judge for the constitutional term was also to be chosen, and the sheriff, in his proclamation giving notice of said election, failed to give notice that a probate judge would be chosen to fill the unexpired term, but merely gave notice that one probate judge for said county would be chosen, without more, and the voters cast their ballots for probate judge without indicating whether for the unexpired term or for the constitutional term — Held:
    1st. That, under the constitution and laws of this state, such election of probate judge was not void for uncertainty.
    2d. That such election did not embrace both the offices which should have been voted for at that time.
    3d. That the judge thus elected must, by reasonable intendment, be held to have been elected for the full, and not for the unexpired term.
    Information in the nature of a quo warranto.

      On the 12th day of March, 1859, Christopher P. Wolcott, attorney general, filed in this court an information, giving the “ court to understand and he informed, that Walter Thrall, of the county of Pickaway, in the State of Ohio, is judge of the court of probate in and for said county of Pickaway, duly elected and qualified according-to law, and, as such, is duly commissioned, and is lawfully entitled to exercise the powers and duties, and to receive the fees and emoluments of said office, during the constitutional' term thereof; but that one Frederick Cogswell, of said Pickaway county, unlawfully holds and exercises said office of judge of said court of probate, in and for said county of Pickaway, the same being a public office, and as such judge of said court of probate, assumes to do and perform all and singular the duties pertaining to said office, and to receive the fees and emoluments thereof, to the great injury of the citizens of the State of Ohio, and of said Walter Thrall, and contrary to the constitution and laws of the State of Ohio, in such case made and provided. Whereupon the said Christopher P. Wolcott, as attorney general of the State of Ohio, as relator in this behalf, upon complaint duly made to him by the said Walter Thrall, prays the advice of this court in the premises, and due process of law against the said Frederick Cogswell in this behalf, and that the said Frederick Cogs-well answer to the State of Ohio by what warrant he claims to hold, use and exercise the said office of judge of the court of probate, in and for said county of Pickaway, as herein before stated.”
    To this information, Cogswell answered—
    “ That said office of probate judge of Pickaway county, became vacant in the month of March, 1857, by the resignation of W. W. Bierce, the then incumbent of said office; and that Seymour G-. Renick was, in said month of March, 1857, appointed by the governor to fill said vacancy, and that said Reniclc having qualified himself, according to law, entered into the exercise of said office immediately after his said appointment, and continued to bold and exercise said office until tbe expiration of said term of said office to wbicb tbe said Bierce bad been elected previous to bis said resignation, to wit, to tbe 9th day of February, 1858, on wbicb day tbe said vacancy to fill wbicb tbe said Renick bad been appointed by tbe governor, as aforesaid, ended, and was' determined in due coui’se of law. And tbis defendant further answering, says, that by virtue of tbe provisions of tbe constitution of Ohio, (art. 4, sec. 13,) there should have been an election in October, 1857, for a probate judge to fill tbe unexpired term of Judge Bierce; but he further says, that by tbe constitution and laws of said state, there should have been an election at tbe same election, in October, 1857, for a probate judge, to fill the next regular term of said office for said Pickaway county, commencing on tbe 10th day of February, 1858 ; and that at said election, held on tbe second Tuesday of October, 1857, be, tbis defendant, was, in due form of law, by tbe electors of said county, elected to tbe said office of probate judge for said county, and that no other person was elected at said election to said office for either tbe said regular term thereof, or for tbe unexpired term thereof, as successor to tbe said Bierce.
    “ And tbis defendant is advised, and charges, and insists, that by virtue of bis said election, and because no other person was elected to said office, either for tbe regular term thereof, or for tbe said unexpired term thereof, be became and was duly and lawfully elected to fill said office, for both tbe said regular term thereof, commencing on tbe said 10th day of February, 1858, and tbe said unexpired term thereof, as successor to tbe said Bierce. And be is further advised and charges, that it was legally competent, and did not involve any legal incompatibility, for the said electors, as they did, in manner aforesaid, to elect him, tbis defendant, to said office, generally, to tbe end that be should fill both tbe vacancy and tbe regular term thereof. And be further avers and charges, that it was equally lawful and competent for him, having been so elected, to decline to qualify himself to fill said office during the said unexpired term of said Bierce, leaving the said Renick in the exercise of said office, with the full right so to do, according to law, to the expiration of said term; and then to qualify himself, and, being duly commissioned, as he avers he was and is, to fill said office for and during the regular term thereof, to enter into, and take possession of, said office, and to exercise the same for and during said term. He'further avers, that being elected to said office, as aforesaid, and being duly commissioned to the same, he did, in due form of law, qualify himself to fill the same, for and during the said regular term thereof, by taking the oath of office, and giving bond, as required by law. And after having been unlawfully resisted, and hindered, and prevented from entering into and exercising said office, for a short period of time after the commencement of said regular term, by the said Seymour Gr. Renick, and the said Walter Thrall, in the information named, he, this defendant, did, afterwards, on the 18th day of February, 1858, without any unlawful force, enter into and take possession of said office, and from thence hitherto, hath continued to exercise and discharge the duties thereof; and still doth exercise and discharge the duties of said office, as by right he lawfully may, for the causes aforesaid, the said term of said office to which he was so elected, and for which he qualified himself as aforesaid, being unexpired. All which this defendant is ready to verify, and he doth show all and singular the matters and things aforesaid, as his lawful warrant and authority for holding and exercising said office; and he doth deny that he in any manner unlawfully holds and exercises said office. And in like manner, he doth deny that the said Walter Thrall, at the general election, in October, 1858, was duly elected probate judge of said Pickaway county. On the contrary, this defendant avers, charges and insists, that at the said election, there was not any vacancy in said office to be filled by the election of an incumbent thereto, and that there was more than two years of the said regular term of said office to which this defendant had been elected as aforesaid, and which he was then exercising, remaining unexpired at the time of the holding of said election, in October, 1858; and that if any votes were cast at said election for the said Walter Thrall, for probate judge of said county, the same were void and inoperative in law, as was also any return thereof, and any certificate of election, and any commission which may have issued to the said Thrall, founded upon any such voted. And this defendant now exhibits herewith a copy of the certificate of his said election to said office, issued to him pursuant to his said election, together with a copy of the official oath by him taken and subscribed, and of his official bond given by him in the premises; and he prays that the same be taken as a part of this his answer, and he will exhibit and produce the originals or office copies of said exhibits on hearing-or otherwise, as by the court hei’e shall be ordered.”
    To this answer the state interposes a demurrer.

      C. N. Olds and John W. Andrews, for Thrall.

      Hunter $ Daugherty, and Renick Williams, for Cogswell.
   Peck, J.

Erom the facts stated in the answer and admitted by the demurrer, it appears that, owing to the resignation of W. W. Bierce of the office of probate judge, in the spring of 1857, it was the duty of the sheriff of Pickaway county to have advertised an election in the fall of that year, among other offices, for that of probate judge for the constitutional term of three years, and also of a probate judge for the unexpired residue of the term of Judge Bierce. The sheriff, however, failed to give such notice, proclaiming merely an election of one probate judge, without indicating in his proclamation whether such judge, to be elected, was for the full or the unexpired term. And it further appears, that at that October election, the electors, in accordance with said proclamation, deposited their ballots for the persons of their choice as probate judge merely, and the defendant, having, at that election, received a majority of the votes cast for said office, was declared duly elected, and received a commission as such probate judge “ for the term for which he was elected; ” the commission not otherwise designating the duration of his said term.

The defendant, regarding such election as for the full constitutional term, shortly before the expiration of the term for which Judge Bierce had been elected, gave an official bond, to the acceptance of the county commissioners, took the oath of office, and shortly after the commencement of the constitutional term, took possession of, and has ever since used and exercised said office.

Under this state of fact, the questions arise, whether, under the circumstances, the defendant acquired, by virtue of such election and his subsequent qualification, the office of probate judge for any term whatever, and if so, for what term ? If for the full constitutional term, then the election of Thrall, in October, A. D. 1858, was void, there being no vacancy, and the defendant is still the lawful holder of said office; hut if the said election of defendant was void for uncertainty, or if it was only for the unexpired residue of the term of Judge Bierce, then the election of Walter Thrall, in October, 1858, was a valid election, and entitles him to the office and its emoluments, and defendant is an intruder therein.

It is claimed by the relator, that the election of the defendant to the office of probate judge, at the fall election of 1857, was void for uncertainty; or if not so void, it must be held and taken to be an election for the unexpired residue of Judge Bierce’s term only, and, consequently, that the defendant acquired thereby no right or title to the office for the constitutional term of three year’s, commenceing at the expiration of Bierce’s official term. While the defendant insists that the proclamation by the sheriff, and the subsequent election by the people, being for a probate judge generally, referred to both the general and special terms, which by the constitution and laws should have been filled at that election, and the successful candidate, if only one, became thereby entitled to both offices, and, being in their nature several, he might rightfully decline the one and accept the other; or, at all events, that proclamation of, and balloting for, a probate judge generally, must, in such case, be regarded as a voting for, and election of, a probate judge for the constitutional term, such office being legally before the people, at that time, for their suffrages, and not necessarily inconsistent with the terms of the proclamation.

The constitutional and legislative provisions involved in the solution of these questions, are sections 7 and 13 of the 4th article, and section 4 of the schedule of the constitution ; and sections 4 and 9 of the “ act to regulate the election of state and county officers.” Swan’s Stat. 341.

The 7th section of article 4 of the constitution creates the office of probate judge in each county, and prescribes Ms term of office to be three years; and section 4 of the schedule provides that the first election of probate judges shall be held on the second Tuesday of October, 1851, and their official terms shall commence on the second Monday of February, 1852, which happened to be the 9th day of that month; so that the official term claimed by the defendant, is the third regular term under the constitution. And the 13th section of said 4th article provides, that where the office of judge shall become vacant before the expiration of the regular term for which he was elected, the vacancy shallbe filled by appointment of the governor, until a successor shall be elected and qualified; and that such successor shall be elected for the unexpired term, at the first annual election that occurs more than thirty days after the vacancy shall have happened.”

"While section 4 of the act regulating elections makes it the duty of the sheriffs, of the several counties, fifteen days prior to every general election, to “ give public notice by proclamation throughout their counties, of the time of holding such elections, and the number of officers at that time to be chosen.” And the 9th section of the same act provides, that each elector, in exercising the privilege of elector at such election, “ shall, in full view, deliver to one of the judges of the election a single ballot or piece of paper, on which shall be written or printed the name of the person voted for, with a pertinent designation of the office he or they may he intended to fill.”

These provisions, constitutional and statutory, clearly show that, upon the facts set forth in the answer and admitted by the demurrer, it was the duty of the sheriff of Pickaway county, in his proclamation of the October election, for 1857, to have advised the voters that a probate judge was to be elected to fill the vacancy occasioned by the resignation of Judge Bierce, and also a probate judge to be elected for the constitutional term; and then it would have been the duty of the voters, in their ballots, to have designated their choice of persons for both the long and the short term. The two offices are distinct, and should be separately voted for, though not being inconsistent, the same individual might have been voted for for both offices. This the sheriff failed to do, and issued his proclamation as if but one judge was to be elected, and that one for the regular or constitutional term; and only one vote for probate judge was given by each elector, and no limit assigned thereon to the duration of his office. The successful candidate could not, in our opinion, fill both offices, as claimed by the defendant. No election was called for both, and the ballot, under the law and the constitution, could not embrace both; and the electors had no vacancy in view. Could he then claim either, and if so, which, or was the election void for uncertainty, as claimed by the relator 1 The call was to elect one probate judge, without more — not a call to fill a vacancy, nor to elect in the place of one who had resigned. It was a call suited only to an election of a judge for the full term fixed by the constitution. The people were advised, by that instrument, that that election was the time when such a judge was to be elected, and may well be supposed to have known that fact, while they probably were, most of them, ignorant that an occasion had arisen for the election of a judge for the brief period which would elapse between that election and the 9th day of February next succeeding; and the proclamation, so far from advising them of that fact, had a contrary tendency — i. e. that there was no such vacancy to be filled. There can be no doubt but that those who participated in that election, voted for the defendant and his opponent for the full constitutional term which was then to be filled, and not to fill the intervening vacancy of about three months, of the existence of which, many, if not all, were ignorant, and as to which the proclamation did not advise them. Every reasonable intendment must be made in favor of the validity of the election; and it would not do, under such circumstances, to hold, that the election was void for uncertainty; still less would it answer to hold, that the election must be applied to the brief period which intervened between that time and the succeeding February —an office to which the candidate certainly did not aspire, and one which no elector supposed he was conferring upon bim. The term of three years as the duration of a probate judge’s office is the general rule under the constitution; terms to fill vacancies the exception. The office of probate judge, when announced in the call for an election, or inscribed upon the ballot of the elector, without limit or qualification, prima facie, at least, imports a term of three years; and such, in our judgment, was the character and duration of the office which, under the averments of the answer, the defendant was elected to fill in October, A. I). 1857.

The election of a probate judge for a full term at that election, was one of the regular duties enjoined by the constitution itself; the duty to fill a vacancy is but an occasional one, and did not become a duty upon the electors until informed that such vacancy had occurred. No such information was embodied in the sheriff’s proclamation, and, for aught that appears, the great body of the electors were ignorant of its existence. The rational as well as legal presumption is, that the electors, in voting for probate judge, upon that occasion, sought to discharge a known duty required of them by the constitution and laws, and not a duty of which they may fairly be presumed to have been ignorant, and as to which, certainly, the notice for the election did not advise them.

The demurrer admits that the defendant was elected probate judge of Pickaway county, in October, 1857, the time fixed by the constitution and laws for an election for a full term; that he has accepted said office, given bond, and been duly qualified and commissioned; that he is now in full possession of the office, fulfilling its duties, and receiving its emoluments. And if these facts be so, we regard him as legally elected for the third constitutional term of probate judge in Pickaway county. There was not, then, any vacancy in that office when Walter Thrall was elected, nor will there be any vacancy therein, if the answer is true, unless the defendant should die or resign, until February 9, 1861.

The demurrer to the answer of the defendant is therefore overruled; and no application being made to reply to the answer, the information will be dismissed, and judgment entered for the defendant.

Swan, C. J., and Brinkerhoff, Scott and Sutliff JJ., concurred.


author: By the Court:

text:
    George P. Clarke v. The State of Ohio.
    1. An indictment for forgery must not only allege the false making or alteration of a writing specified in the statute, with intent to defraud some named person or body corporate, but it must also appear on the face of the indictment, that the fabricated writing, either of itself or in connection with the extrinsic facts averred, is such, that if genuine, it would be valid in the law to prejudice the rights of the person or body corporate thus named.
    2. Where an indictment charged that C., with intent to defraud L., had falsely altered a receipt made to L. by a county treasurer, for the payment of certain taxes due from L. for a given year, so that the receipt, in its altered form, represented the payment of a sum larger than that originally expressed therein, but did not aver any extrinsic circumstances giving to the receipt an operation beyond that imported by its terms. Held — That the indictment was bad because upon the face thereof the receipt had no legal efficacy as against L., and could not, therefore, in contemplation of law, impair any of his rights.
    In- Error to the Court of Common Pleas of Jefferson county.
    At the February term, 1856, of said court, George P. Clarke was indicted for forgery, and was put upon his trial upon the first count of the indictment, which was as follows:
    “At a court of common pleas- began and held at Steubenville, within and for the county of Jefferson, and State of Ohio, on Tuesday, the nineteenth day of February, in the year of our Lord one thousand eight hundred and fifty-six, the grand jurors summoned to inquire for the body of the county of Jefferson, upon their respective oaths and affirmations, and in the name and by the authority of the State of Ohio, do present and find, that George P. Clarke, late of said county, on the nineteenth day of December, in the year of our Lord eighteen hundred and fifty-three, at the county aforesaid, having in his possession a certain receipt for the payment of money, which said receipt for the payment of money, at the time when it camejnto the possession of said George P. Clarke, was as follows, to-wit:
    ‘Jefferson Co., Decern. 19, 1853 — Rec’d of Nathan Lupton R. T. S. Qr. Acres. D. C.M.
    Tax on land.................3, 7, 29, N. J, 105, 20 74 2
    Tax on $715 personal property.................................... 6- 75 7
    Tax on town lots No............................................
    27 49 9
    A. SKELLY, Treasurer of Jefferson county.'

      “He, the said George P. Clarke, afterward, to wit, on the twenty-first day of December, in the year of our Lord eighteen hundred and fifty-three, at the county aforesaid, did falsely alter said receipt for the payment of money, by falsely erasing the figure 0 under the letter D, where it occurs in the line of figures in the first item of said receipt, for the payment of money, which said figure 0, before said erasure, with the other figures in said line, did mean and signify twenty dollars, seventy-four cents and two mills, and did falsely and fraudulently insert in the place of said figure 0 the figure 7, by reason of which said alteration the said line of figures did mean and signify twenty-seven dollars, seventy-four cents and two mills, and the said George P. Clarke did further falsely and fraudulently alter said receipt for the payment of money, by erasing the figures 2 and 7 where they occur in said receipt, in the line of figures in the third item of said receipt under the letter D, which said line of figures, before said alteration, did mean and signify twenty-seven dollars, forty-nine cents and nine mills, and did falsely and fraudulently insert in the place of said figures, the figures 3 and 4, whereby and by reason of said false and fraudulent alteration the said line of figures was caused to mean and did signify thirty-four dollars, forty-nine cents and nine mills, which said receipt for the payment of money, so falsely and fraudulently altered, is in the words, figures, and letters, as follows, to wit:
    ‘Jefferson Co., Decern. 19,1853 — Rec’d of Nathan Lupton R. T. S. Qr. Acres. D. C.M.
    Tax on land.................3, 7, 29, N. £, 105 27 74 2
    Tax on $715 personal property.................................... 6 75 7
    Tax on town lots No..............................;.............
    34 49 9
    A. SKELLY, Treasurer of Jefferson county. ’

    “ With intent to defraud Nathan Lupton, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Ohio.”
    Clarke having been found guilty in manner and form as he stood charged in the indictment, his counsel filed a motion in arrest of judgment, for the reasons, 1st, that the indictment charged no crime against the prisoner; and 2d, that the paper described in the indictment could not, from anything that appears in the indictment, effectuate a fraud upon Nathan Lupton.
    The court overruled this motion and passed judgment upon the prisoner; but, on motion of his counsel, suspended the execution of the sentence until the next term of the court, to await the result of proceedings in error.

      George W. McCook and It. S. Moodey, for Clarke,
    claim that the indictment charges no crime against the laws of Ohio, and ask a reversal of the judgement.

      Mr. Attorney General

    stated to the court that upon a thorough examination of the questions arising in this case he had been led to the conclusions following, which necessarily precluded him from objecting to a reversal of the judgment:
    I. To constitute forgery, under the crimes act of this state, it is essential that the fabricated writing shall not only'answer'the general description of some one of those enumerated in the statute, but that it shall also be such an instrument as that, if genuine, it would tend in the law, to establish or defeat some claim, impose some duty, create some liability, or otherwise prejudice one in his rights of person or of estate. The evident purpose of the statute is to protect society against the falsification of those writings only which have some legal efficacy, and the instrument must, therefore, either on its face, or with reference to extrinsic facts, be capable, in the law, of accomplishing a fraud.
    H. This conclusion, derived from the intent of the statute, is fortified by the consideration that as every man is conclusively presumed to know the law, no one can, in legal contemplation, be damnified by the fabrication of an instrument to which, if genuine, the law would give no operative effect.
    HI. Nor, in this respect, is there any difference between instruments, void on their face, and those which, though apparently operative, are yet not so by reason of matters dehors the paper. Wherever, upon all the proofs, it appears that the writing, however seemingly effective on its face, could have no legal tendency to affect injuriously the rights of another, the accused must go acquit. Barnum v. The State, 15 Ohio Rep. 717.
    IY. The settled rules of criminal pleading require that every indictment shall contain a complete description of the offense charged, with such particularity in respect to time, place and circumstance, as that the defendant may know with certainty “ the nature of the accusation against him.” Accordingly an indictment for forgery must allege not merely the fabrication — with intent to damage some named person — of a writing which, either upon its face, or in connection with the extrinsic facts averred, may, in contemplation of law, be capable of compassing a fraud, but it must also show that the writing may exert this legal capacity to defraud against the very person so named. If, then, it do not appear, upon the face of the indictment, that the simulated writing, though seemingly effective for some purposes, may, by its apparent legal operation, tend to accomplish the fraudulent intent charged in the particular case, it must, as to all the purposes of the given case, be deemed invalid, and so not the subject of forgery under the circumstances then averred.
    V. Where, therefore, an indictment charges that Clarke, with intent to defraud Lupton, falsely altered a receipt made by a county treasurer to Lupton, reciting the payment of Lupton’s taxes upon certain property, for a given year, so that the receipt, in its altered form, indicated the payment of a larger sum than that originally expressed therein, and does not aver any extrinsic circumstance, showing how this altered receipt was clothed with any apparent legal attributes by which it could operate to the prejudice of Lupton, it is bad. Whatever might be its legal tendency to defraud the treasurer, yet, as against Lupton, oh its face the writing seems utterly powerless, in the law, for mischief. Of itself it does not tend to impose on him any duty; defeat any of his rights'; charge him with any liability, nor could it be used as evidence against him. Quite possibly some circumstances can be imagined under which it might seem legally effective against Lupton, but if there were such, they should have been averred in the indictment, so that the court could judicially see that the writing was invested with an ostensible legal capacity for evil. The indictment must always show a practicable fraud. Courts are not to explore for possible mischiefs, nor is the liberty of the citizen to be surmised away upon any such vague conjectures.
   By the Court:

An indictment for forgery must not only allege the false making or alteration of a writing specified in the statute, with intent to defraud some named person or body corporate, but it must also appear on the face of the indictement, that the fabricated writing, either of itself or in connection with the extrinsic facts averred, is such, that if genuine, it would be valid in the law to prejudice the rights of the person or body corporate thus named.

Although in this case the indictment charges that Clarke, with intent to defraud Lupton, falsely altered the receipt made to Lupton by the county treasurer, for the payment of certain taxes due from Lupton, for the given year, so that the receipt, in its altered form, represented the payment of a sum larger than that originally expressed therein; yet, as the indictment does not aver any extrinsic circumstances giving the receipt an operation beyond that imported by its terms, and as by its terms, solely, the receipt had no legal efficacy as against Lupton, it could not, therefore, in contemplation of law, impair any of his rights-. The indictment is, therefore, on its face, defective.

Judgment reversed and, cause remanded.


author: Scott, J. Swan, C. J.,

text:
    Michael Beaudien v. The State of Ohio.
    1. Upon trial under an indictment for murder in the first degree, it is error for the court to charge the jury that if they find the prisoner guilty of the homicide, they must state in their verdict that they find him guilty of murder in the first degree.
    2. A verdict against the prisoner should he set aside for such misdirection, though his counsel have claimed, in the argument of the case Before the jury, that the prisoner, if guilty at all, was guilty of murder in the first degree; and though no exception was taken when the erroneous instruction was given to the jury.
    In Error, to the Court of Common Pleas of Lucas county.

      Price $ Fuller, and Hill, for Beaudien.

      C. P. Wolcott, attorney general, for the state.
   Scott, J.

The plaintiff in error was arraigned at the March term, 1858, of the court of common pleas of Lucas county, on an indictment for murder in the first degree, to which he pleaded “ not guilty.” The issue thus made was tried by a jury, at the following June term of said court, and a verdict rendered against the prisoner, finding him guilty of murder in the first degree, as he stood charged in the indictment.

A motion was thereupon made in behalf of the prisoner, to set aside this verdict, and grant him a new trial, for various reasons, founded principally on alleged errors of the court, in the instructions given to the jury. This motion was overruled, and the prisoner adjudged to be executed.

A bill of exceptions was thereupon regularly taken, from which it appears that evidence was offered by the state, upon the trial, tending to show the following state of facts: That the deceased, Anthony Upelle, was killed by the discharge of a gun, loaded with buck-shot, between 12 and 1 o’clock of the night of July 19th and 20th, 1857. That the deceased was sitting in a room of his own house, and was shot through a window, by some person from without. That Beaudien was living, at the time, with one Harriet Gay, whose house was about forty rods distant from that of TJpelle, where the homicide was committed. That a quarrel had taken place between the deceased and the plaintiff in error on the evening preceding the homicide, growing out of familiarities between the deceased and Mrs. Gay, at the close of a corn-hoeing bee, at her house; and that Beaudien said, upon that occasion, that Mrs. Gay was the last woman that he, Upelle, would ever kiss. That tracks were discovered, early next morning, leading from the house where Beaudien was living with Mrs. Gay, to a point about ten feet distant from the window- through which the gun was fired, and where a person of the prisoner’s height must have stood when discharging the gun, in order that the charge should take effect upon the body of Upelle, where th'e wounds were discovered. That the impressions of these tracks were, in several places, clear and distinct, and corresponded accurately in size, shape, and all their peculiarities, with the boots worn by Beaudien.

The defendant offered evidence tending to show an alibi; and that rain had fallen during the night, subsequent to the murder, to such an extent as to render the identification of tracks, previously made, unreliable; and that no quarrel had occurred between himself and Upelle, on the preceding evening.

Other testimony Was offered, by both parties, which is not set out in the bill of exceptions. .

It was claimed in argument before the jury, by the prisoner’s counsel, that the defendant, if guilty at all, was guilty of murder in the first degree; and that if the jury could not find him guilty of murder in the first degi’ee, they must acquit him. To this the prosecuting attorney assented; and, in argument, admitted that the prisoner must be acquitted if the jury could not find him guilty of murder in the first degree, upon the evidence before them.

The court thei’éupon, among other things, charged the jiiry, in relation to the gi’ade of crime with which the prisoner stood charged, as follows: “ Under the laws of Ohio, murder in the first degree is defined to be the intentional killing of another, unlawfully and purposely, with deliberate and premeditated malice. That the deceased was killed under such circumstances as would constitute, this, crime, on the part of some one, can, from the evidence, admit of hut little doubt. Indeed, it is frankly conceded by the counsel for the defense, that the evidence clearly establishes the crime, and that the only real issue made, by counsel before the jury, is the prisoner’s connection with the transaction — did he commit the crime, or did he not? * * * * * If the jury, in this case find the prisoner guilty of the charge, you will have to state in your verdict that you find him guilty of murder in the first degree. And if you do. not find him thus guilty, your verdict will be, not guilty.”

No exception was made by counsel to the charge, at the time it was given to the jury. But among the reasons in support of the motion for a new trial, it was assigned that the court erred, in charging the jury, that if they found the defendant guilty, they must find- him guilty of murder in the first degree.

Many errors are now. assigned, as grounds for. the reversal of the judgment in this case, but we think none of them require formal examination and adjudication, excepting those which relate to the portion of the. charge of the court above stated.

The instruction given by the court to the jury, that if they found the prisoner guilty of the charge, they would have to state in their verdict that they found him guilty of murder in the first degree, must be regarded as the statement, of a legal proposition, founded either on the character and state of the pleadings, or upon the state of the evidence and the admissions of counsel. ■

If viewed in the former light, it was clearly wrong.

The prisoner, it is true, was charged by the indictment with murder in the first degree, and the plea was not guilty. But the crime of murder in the first degree includes all the constituent elements of the lower grades of homicide; and there can be no question but that, in the state of the pleadings, the prisoner might, legally, have been found guilty, either of murder in the second degree, or of manslaughter. But the general terms in which the instruction was given, were well calculated to mislead the jury, by inducing them to suppose that the form of the indictment was such as would authorize a conviction for murder in the first degree only.

But if we regard the charge as intended to be predicated on the state of the evidence, and the admissions of counsel, and to have been so understood by the jury, it was equally objectionable.

"Whether the homicidal act was committed purposely or otherwise, with or without malice, or with or without deliberation and premeditation, were questions of fact to which it was the exclusive right and province of the jury, upon consideration of the evidence, to respond. Whilst it was the right and duty of the court to pass upon the competency of the evidence offered, as well as to determine all other questions of law arising in the progress of the trial; yet of the credibility, weight and effect of the evidence, when offered, the jury were the sole judges.

It is accordingly provided, by express statute, “ that in all trials for murder, the jury before whom such trial is had, if they find the prisoner guilty thereof, shall ascertain by their verdict, whether it be murder in the first or second degree, or manslaughter; and if such person be convicted by confession, in open court, the court shall proceed, by examination of witnesses, in open court, to determine the degree of the crime, and shall pronounce sentence accordingly.” Swan’s Stat. 275, sec. 39. However clear and full the proof of guilt may be, the court cannot, under this statute, determine the degree of the crime, except upon conviction by confession, in open court, and then, only, as a question of fact, by the examination of witnesses. But where, as in this case, there is no confession of guilt, in open court, but all the allegations of the indictment are traversed by a plea of not guilty, the question of the prisoner’s guilt, and the degree of the crime, can, by no state of the evidence, be withdrawn from the consideration of the jury, and transferred to the court for decision.

This same question was presented and decided by this court, at its last term, in the case of Robbins v. The State, in which the judgment of the court of common pleas was reversed, for the reason, among others, that a similar instruction had been given to the jury, by which they were required, if they found the prisoner guilty, to say by their verdict, that they found him guilty of murder in the first degree. The court unanimously held this to be a proper ground for reversal. But it is claimed that the present case stands on a different footing, because of the admission of counsel for the prisoner, in the argument of the case before the jury, that the defendant, if guilty at all, was guilty of murder in the first degree. But a majority of the court think that this circumstance does not affect the law of the case. The prisoner had pleaded not guilty to the indictment, and no argument or claim of his counsel could operate as a withdrawal of that plea, or as a confession of guilt, in open court. The premeditation and deliberation, the malice, the purpose to kill, and the homicidal act, charged in the indictment, were all denied by him. And whatever might be the effect of an admission of a material fact, made in open court, by his counsel, in the progress of the trial, with a view to obviate the necessity of proof on the part of the state, there was here no such admission. The evidence on both sides had been fully closed; and in the argument of the case to the jury, the prisoner’s counsel claimed, by way of argument, that the evidence which had been submitted to the jury, showed the case to be one of murder in the first degree, and that the defendant should, therefore, be found thus guilty, if at all. To this claim of counsel as to the effect of the evidence, the prosecuting attorney assented. There was here no admission of an independent fact, susceptible of direct proof, but a mere inference, claimed to be fairly deducible, as a conclusion, from the facts proved. By representing the sole question as one of life or death, counsel, no doubt, hoped to induce hesitation on the part of the jury, and increase the probabilities of acquittal. It was but an argument, and could not, therefore, bind the prisoner, as an admission of an independent substantive fact; and the correctness of the reasoning, upon which it assumed to rest, should have been left to the jury to determine. This argument or claim of counsel, thus assented to, might very properly be considered by the jury; it might go far to relieve their minds of any doubt as to the grade of the crime; but still it could not operate to deprive them of the right, or discharge them from the obligation to inquire and determine for themselves, not only whether the evidence satisfied them of the prisoner’s guilt, but also as to the degree of crime which it established. It would have been competent for the jury, notwithstanding the argument of counsel, to have found the prisoner guilty of murder in the second degree, if in their judgment the evidence warranted such a verdict.

We think, therefore, that the court clearly erred in authoritatively directing the jury that they must either find the prisoner guilty of murder in the first degree, or find a general verdict of not guilty. And this error could only operate to the prisoner’s prejudice. Eor, though the court formally defined the crime of murder in the first degree, yet the jury were, in effect, instructed that the only issue upon which they were required to pass, was as to the prisoner’s connection with the homicide; and that if they found, from the evidence, that he committed the act by which the life of the deceased was taken, they would have to state in their verdict that they found him guilty of murder in the first degree. All inquiry into the grade of crime was thus cut off, and the character of the verdict was fully determined by finding the prisoner guilty of the homicide.

Eor these reasons, a majority of the court think the motion for a new trial should have been sustained. That motion the prisoner might well make, if the jury was misdirected, to his prejudice, upon the trial of an issue involving his life, although no exception was taken by his counsel at the time the instructions were given. No consent of counsel could deprive him of the right to have such an issue, with all the questions of fact bearing upon it, tried and determined by a jury. The constitutional guaranties of this important right, and the statutory provisions intended to secure its integrity, would he unmeaning and valueless if a court may prescribe how the jurors shall answer the questions submitted to them.

It may be that in this case the verdict of the jury was fully warranted by the evidence. Be that as it may, the prisoner was still entitled to a trial by the tribunal, and in the mode prescribed by law. No presumption of guilt in this case can justify us in establishing a dangerous precedent, by denying him this right.

Judgment of the common pleas reversed, and cause remanded.

Brinkbrííobb, Sutlifb and Puck, JJ., concurred.

Swan, C. J.,

dissented:

Up elle was sitting in his house at midnight, and some person shot him by discharging a gun from the outside, through the window. On the trial of the defendant for the murder of Upelle, the defense turned upon the fact whether he was the person who shot the deceased. It was claimed by the prisoner’s counsel, before the jury, that the defendant, if guilty at all, was guilty of murder in the first degree; and that if the jury could not find him guilty in the first degree they must acquit him. To this the prosecuting attorney also assented. The court, in their charge to the jury, and without exception or objection until after verdict, stated to the jury that it was conceded by the counsel for the defense that the evidence clearly established the fact, that murder in the first degree had been committed by some one; and that the only real issue made by counsel before the jury, was the prisoner’s connection with the transaction; and the court said, that “ if the jury in this case find the prisoner guilty of the charge, you will have to state in your verdict that you find him guilty of murder in the first degree; and if you do not find him thus giiilty, your verdict will be, not guilty.”

The court said this — not for the purpose or with the intention to take from the jury the question whether the grade of the offense was less than murder in the first degree, but because neither , the facts nor the prisoner made any question of that kind. The prisoner or his counsel should have withdrawn the concession as to the real issue made, and grade of the offense, at the time of the charge, or-before verdict; and there being no testimony whatever even tending to show that the offense was of a different-grade from that conceded, the verdict should not, in my opinion, be disturbed. In my opinion, the majority of the court have applied very sound law to a . case to which that law is not applicable.


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    John Schaffner v. The State of Ohio.
    Motion for the allowance of a writ of error to the Common Pleas of Clark county.
   By the Court:

1. It is not necessary that an indictment, under the act of May 1st, 1854, “to provide against the evils resulting from the sale of intoxicating liquors, in the State of Ohio,” should be indorsed by a surety, for costs, nor that the fact of its being found “ on testimony sworn and sent to the grand jury, by order of the court at the request of the prosecuting attorney, or the foreman of the grand jury,” should be indorsed thereon.

George Spence, for the motion.

2. The act to restrain the sale of spirituous liquors, passed March 12, 1851, which immediately preceded this act, and was repealed by it, excepted from its operation sales made “for medicinal and pharmaceutical purposes,” hut this act makes no such exceptions; and from this circumstance, and from the fact that the exception was liable to much practical abuse, it is presumable that the legislature intended to exclude such exception.

3. Any person may lawfully, in good faith, give away intoxicating liquors for medicinal or other purposes, or may lawfully sell them in any quantity for such purposes, to be drank elsewhere than where sold; but he cannot lawfully sell them (except such as are specially excepted by the statute) to be drank where sold, for any purpose.

The administering of liquors, as a medicine, to a patient by a physician could not property be denominated a sale.

Motion overruled.


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    Alexander McCombs v. The State of Ohio.
    1. On a trial for rape, or for assault with intent to commit a rape, the acts and declarations of the husband of the woman on whom the offense is alleged to have been committed, are not admissible to discredit the wife examined as a witness.
    2. Whatever may be the rule elsewhere, it is settled in Ohio, that in a prosecution for rape, or for assault with intent, etc., “ the substance of what the prosecutrix said,” or the “declarations” made by her immediately after the offense was committed, may be given in evidence, in the first instance, to corroborate her testimony.
    S. The character for chastity of the prosecutrix in this class of cases, cannot be impeached by evidence of particular acts of unchastity, but only by general evidence of her reputation in that respect. Nor can she be interrogated as to previous criminal intercourse with persons other than the accused himself; nor is such evidence of other instances admissible.
    In Error to the Court of Common Pleas of Tuscarawas county.

      . At the March term, 1858, of said court, McCombs was put upon his trial upon an indictment for an assault with intent to commit a rape upon the person of Maria Gertseh, and was convicted and sentenced to imprisonment in the penitentiary.
    To reverse this judgment this writ of error is prosecuted.
    It appears from the bill of exceptions taken on the trial, that Maria Gertseh, the prosecutrix, was sworn and examined on behalf of the state, whereupon, on cross-examination, the prisoner’s counsel asked her this question, “How many bastard children have you had?” To which question the counsel for the state objected, and the court sustained the objection,'and the prisoner’s counsel excepted.
    And upon further cross-examination the prisoner’s counsel asked said prosecutrix this question, “Have you ever had two bastard children ? ” To which question the counsel for the state objected, and the court sustained the objection, and the prisoner’s counsel excepted.
    And upon further cross-examination of said prosecutrix, the prisoner’s counsel asked her this question, “Hid you ever prostitute yourself for money ? ” To which question the counsel for the state objected, and the court sustained the objection, and the prisoner’s counsel excepted.
    And upon further cross-examination of said prosecutrix, and after it had been proved that she and Samuel Gertseh had been married four years prior to the commencement of the prosecution, counsel for the prisoner asked her this question, “ How long were you and your present husband, Samuel Gertseh, living together as man and wife before you were married ? ” To which question counsel for the state objected, and the court sustained the objection, and the prisoner’s counsel excepted.
    Christian Ring was next sworn and examined as a witness on behalf of the state, and was asked by the counsel for the state, for the purpose of corroborating the prosecutrix, and for no other purpose, and not to prove the commission of the act, (the prosecutrix having previously testified that she had made complaint to said King immediately after the commission of the alleged offense,) this question, “What did Maria Gertseh, the prosecutrix, say immediately after the alleged offense, concerning the alleged assault upon her?” The counsel for the prisoner objected to the witness King giving the declarations of the prosecutrix in detail, admitting that he might state the fact that she made complaint. The court overruled this objection, and permitted the witness to state what the prosecutrix said immediately after the act, about the alleged assault, for the purpose, only, of corroborating her, and the prisoner’s counsel excepted.
    And the state having examined Samuel Gertseh, the husband of the prosecutrix, then called Jacob Mickle, who was sworn and examined for the state, whereupon, on cross-examination, counsel for the prisoner asked said Mickle this question, “ What did Samuel Gertseh say to his wife on the same day she told him the occurrence, about compromising this case, and what did she say?” To this question the counsel for the state objected, and the court sustained the objection, overruling the question as an entierty, but permitting the counsel for the prisoner to ask the witness concerning anything that the prosecutrix said, on that occasion, about compromising the case, or otherwise. To this ruling the prisoner’s counsel excepted.
    And upon further cross-examination of said Mickle, the prisoner’s counsel asked this question, “Did not the witness Gertseh, husband of the prosecutrix, on same day of alleged offense, propose to compromise the matter for five dollars, to his wife ? ” To which question the counsel for the state objected, and the question was overruled, and the prisoner’s counsel excepted.

      ktambaugh § Beady, for plaintiff in error, insist that the court below erred in these several rulings.

      C. P. Wolcott, attorney general, for the state.
   By the Court:

On a trial for rape, or for assault with intent to commit a rape, the acts and declarations of the husband of the woman on whom the offense is alleged to have been committed, are not admissible to discredit the wife examined as a witness. Jefferson v. The State, 6 Ired. Rep. 305.

Whatever may be the rule elsewhere, it is settled in Ohio, that in a prosecution for rape, or for assault with intent, etc., the “ substance of what the prosecutrix said,” or the “declarations” made by her immediately after the offense was committed, may be given in evidence, in the first instance, to corroborate her testimony. Johnson v. The State, 17 Ohio Rep. 593; Laughlin v. The State, 18 Ohio Rep. 99.

3. The character for chastity of the prosecutrix, in this class of cases,"cannot be impeached by evidence of particular acts of unchastity, but only by general evidence of her reputation in that respect. Nor can she be interrogated as to previous criminal intercourse with persons other than the accused himself; nor is such evidence of other instances admissible. Pleasants v. The State, 15 Ark. Rep. 624; Camp v. The State, 3 Kel. (Ga.) Rep. 417; State v. Jefferson, 6 Ired. Rep. 308; Rex v. Clark, 2 Stark. Rep. 241; People v. Jackson, 3 Park. Crim. Rep. 391; 1 Greenl. Ev. 596; 3 Greenl. Ev. 214; 3 Starkie Ev. 1270; 2 Phil. Ev. 419.

Judgment affirmed.


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    Cradlebaugh and Morris v. Zachariah Pritchett.
    Where, after order of sale in partition, a judgment was recovered agaiust one of the defendants in partition and the premises were subsequently sold under said order to a stranger, and the sale confirmed, on bill filed by the judgment creditor to subject the undivided interest of his debtor, prior to said sale, to the payment of the judgment — Held:

      1. That the lien of the judgment upon the undivided interest -which the judgment debtor had at its rendition, was divested by the sale in partition and could not be asserted as against the purchaser at said sale.
    2. That such judgment creditor, on due application to the court having control of the proceeds of the sale, might have had the portion belonging to his debtor applied in satisfaction of the judgment.
    Bill op Beview. Beserved in the District Court of Pickaway county.
    On May 31st, 1847, John Anderson, jr., late of Pickaway county, deceased, was seized of one undivided seventh part of two tracts of land, situate in said Pickaway county; and on that day Anna Stover and Benna Anderson, two of his co-tenants, filed, in the Pickaway common pleas, their petition for partition against the said John Anderson, jr., and the other co-tenants, praying partition under the statute. In which case such further proceedings were had, that on the 4th day of May, 1848, the commissioners having returned that the lands were incapable of division, etc., the court ordered a sale of the lands under the statute. At the same term, but two days thereafter, the said Zachariah Pritchett recovered a judgment in the same court against the said John Anderson, jr., for $278.50, and costs of suit.
    On July 29th, 1848, the whole of said two tracts were sold under said proceedings in partition: one tract to said Cradlebaugh, and the other to said Morris; which sales were examined and confirmed at the July term of said court.
    John Anderson, jr., died in December, 1848, no execution having been issued on said judgment, and no steps taken by Pritchett to appropriate Anderson’s share of the proceeds of the sale in partition to the payment of the judgment.
    On December 9, 1851, Pritchett filed a bill in chancery, in the Pickaway common pleas, • against the purchasers, Cradlebaugh and Morris, and the administrator of Anderson, setting up tbe lien of said judgment, which had been revived against the administrator, and praying a sale of the undivided seventh part of said lands to satisfy it; and the court, having overruled a demurrer filed by the complainants herein, decreed a sale of said lands. Erom which decree the present, complainants appealed to the district court; and the said Pritchett, in December, 1852, filed in said district court his amended bill, setting forth in due form the facts above stated, and praying judgment against the administrator and a sale of the one-seventh part of said lands, to satisfy the same. The present complainants demurred to the amended bill; but the district court overruled the demurrer and rendered a decree against the administrator for the amount due upon said judgment, declared the same a lien upon one-seventh of said lands, and ordered a sale thereof.
    January 23, 1856, Cradlebaugh and Morris filed in said district court their bill to review so much of said decree as declares said judgment to be a lien upon the lands since their transfer to them, and directs a sale thereof to satisfy the same, insisting—
    1st. That said judgment was not a lien on the premises.
    2d. That the lien of said judgment was divested by the sale of said premises in partition.
    3d. That the premises should not have been ordered to be sold.
    4th. There is no equity in the bill, and the same should have been dismissed.

      Hunter $ Daugherty, for Cradlebaugh and Morris.

      T. C. Jones, for Pritchett,
    cited Sebring v. Mercer, 9 Cow. Rep. 344; Watter v. Copeland, 1 Johns. Ch. Rep. 140; Harwood v. Kirby, 1 Paige’s Ch. Rep. 469, to show that a partition does not divest a lien.

      C. N. Olds, also for Pritchett,
    cited Tabler v. Wiseman, 2 Ohio St. Rep. 211; Colton v. Smith, 11 Pick. 311; Monroe v. Luke, 19 Pick. 39; Owsley v. Smith, 14 Miss. Rep. 153; 22 Penn. St. Rep. (10 Harris) 406.
   Peck, J.

The only question mooted in the argument is, whether, in the case made hy the amended bill, the lien of the judgment in favor of Pritchett, can be enforced upon the interest which Anderson had in the lands before partition, after the sale and confirmation ■ thereof in the partition proceedings. The plaintiffs in review insist, that the sale and confirmation divested the lien of the judgment upon the lands, as lands, leaving to the judgment creditor the right, on due application, to have an appropriation of Anderson’s share of the proceeds, to the satisfaction of the j udgment; while the defendant in review insists, that the purchasers at the partition sale took the land subject to the lien of his judgment.

It is to be borne in mind, not only that the petition had been filed and the order of partition issued, before the recovery of the Pritchett judgment, but also that the commissioners had made their return, and a sale of the joint estate had been ordered prior to its rendition.

It was a lien, then, acquired pending the partition proceedings, and after an order for a sale of the judgment debtor’s interest had been pronounced by a court of competent jurisdiction.

The interest of the judgment debtor in the undivided real estate was an interest subordinate to the execution of the order, of which the judgment creditor had constructive if not actual notice, the partition proceedings being still pending and undetermined.

The proceedings in partition were properly commenced —all parties then interested in the land were made parties thereto, and no change in the ownership or beneficial interest occurred until after the order of sale had been. made.

If, pending these proceedings in partition, Anderson had executed a mortgage or granted the whole or a portion of his interest in the joint estate, it would scarcely be claimed ■that the mortgagee or grantee, pendente lite, could arrest proceedings rightfully commenced, or delay a hearing, until the petitioners had made him a party.

If a voluntary pledge or alienation could, in such case, delay or defeat the proceedings in partition, then it would necessarily follow, that such partition could, by the repeated exercise of this power of sale, be permanently frustrated. The 'statute expressly confers upon tenants in common the right to have partition. It is, as it were, a statutory incident to the joint estate. The suit was regularly and properly commenced, and if, in such case, it cannot be proceeded in to final partition, that provision of the statute is, or may be made, nugatory and useless. No one, we apprehend, in view of these consequences, would hold that a co-tenant could, by his own act, thus delay, embarrass or defeat a partition once properly commenced; but the law should, in such case, remit the purchaser to the share set apart to his vendor or mortgagor, if partitioned, (10 John. Rep. 414, 417,) or to his portion of the proceeds, if sold. 2 Penn. Rep. 279. And if this be so, it is difficult to see why a different rule should prevail where the transfer or incumbrance is created by the operation of law. In the case at bar, Pritchett, by his judgment, did not acquire the undivided interest of Anderson, as land; but merely the right to have it appropriated to pay the judgment. This he still had a right to do, and, if vigilant, would have done so by an application to the court, on confirmation of the sale. And this is what equity and good conscience would seem to have required of him.

The defendant in the case in review, invoked the equitable powers of the court to aid him in obtaining satisfaction out of Anderson’s former interest in the joint estate. That interest, by the operation of the statute and its own indivisibility, had been converted into money. The defendant, as judgment creditor, had the undoubted right, on application to the court having control of the proceeds, to have Anderson’s share applied to the satisfaction of the judgment. The purchasers had bought the land as if wholly unincumbered. As between such purchasers and the judgment creditor, equity would seem to require the creditor to apply for such appropriation, and having failed to do so, the maxim “ he who seeks equity, must do equity,” would forbid us granting him the relief he now seeks against the purchasers.

The cases cited by counsel for defendant in review, to the effect that a partition does not divest a lien, are all cases where the lien was created or arose prior to the institution of the proceedings in partition, and in none of them do the premises appear to have been sold.

We do not undertake to decide what effect a sale in partition would have upon a lien acquired previous to the filing of the petition, on one or more undivided interests —whether the other co-tenants could proceed at law in such case to divide the lands, and in case of sale confer an unincumbered estate on the purchasei’, or whether it would be more prudent to apply in equity for partition, making the prior lienholders parties to the suit.

All we do decide is, that in the case at bar, the judgment having been rendered after the order for sale in partition, the purchasers under that order took the land discharged from the judgment lien, and the judgment credr itor should have had the proceeds of the sale applied, by order of court, to the payment of the judgment.

The decree of the district court is reversed, and the demurrer to the amended bill sustained, and cause remanded for further proceedings.

Swan, C. J., and Brinkerhoi'I', Scott and Sutliit, JJ., concurred.