text:
    Lessee of Cadwallader Wallace v. Nathaniel Saunders.
    An entry and survey in the name of A. Singleton, attorney in fact for O. Holmer, deceased, are both void, and can not he the foundation of a subsisting title.
    Eeserved in Highland county. This case was submitted to the court upon the following agreed statement of fact: •
    It was agreed that the plaintiff’s claim to the premises in question is based upon an entry for twenty-two hundred and fifty acres of land on Lee’s creek, a branch of Eattlesnake fork of Paint creek, made on April 20, 1795, which entry is as follows:
    “ No. 2,519. Anthony Singleton, attorney in fact for Christian Holmer, deceased, enters twenty-two hundred and fifty acres of land, part of a military warrant, No. 2,744, on Lee’s creek, a branch of the Eattlesnake fork of Paint creek, beginning at the west •corner of Hardin and Gray’s survey, No. 1,836, thence 39 west 616 poles, thence south 73 west 514 poles, thence south 17 east 574 :poles, thence north 73 east to the beginning.”
    This entry was surveyed by Nathaniel Massie, deputy surveyor, on April 30,1795, purporting to be “ surveyed for Anthony Single- • ton, attorney in fact for Christian Holmer, deceased,” and the plat and certificate of survey returned and recorded in the office of Richard C. Anderson, principal surveyor, on May 15, 1795.
    Said entry and survey was patented to Oadwallader Wallace by •patent bearing date May 28,1834, which patent is made a part of ■■•the agreed case. The granting part of the patent is as follows: “In consideration of military service performed by Christian ■Holmer, who was a major for three years to the United States in the Yirginia line and continental establishment, and in pursuance of an act of Congress,” etc., “there is granted by the United ■States to Oadwallader Wallace, assignee of John D. Munford, attorney in fact to Lucy H. Taylor, formerly Lucy H. Singleton, and Richard Singleton, the only children and heirs at law of Anthony Singleton, deceased, a certain tract of land,” etc., describing in part the land in controversy.
    *It was further agreed that the defendant’s claim is based •on an .entry made on September 14, 1818, of which the following is a copy:
    “ No. 9,669. Thomas M. Saunders and John W. Pope, assignees, •enter four hundred acres of land on a part of a military warrant, No. 5,349, on Lee’s creek, a branch of the Rattlesnake fork of Paint creek, beginning at a hickory, sycamore, and sugar tree, northeasterly corner to Richard' C. Anderson’s survey, No. 3,759, thence north 36J east 359 poles to the line of Levi Teagle’s survey, No. 2,298 ; thence south 25J east, and from the beginning south 25£ ■east with the line of Anderson’s survey, so far that a line north 46£ east will include the quantity.” Which entry was surveyed •by Thomas M. Saunders, deputy surveyor, October 6, 1818, and returned to the principal surveyor’s office and recorded November 25, 1818. This last entry and survey was patented to Pope .and Saunders anterior to the date of the patent to Wallace.
    It was a part of the agreed case that either party might intro•duee other competent testimony.
    Under this latter clause the plaintiff introduced copies from the United States general land office of the original warrant to A. Singleton, as attorney in fact to Holmer, deceased, bearing date-March 9, 1784; of Singleton’s entry and survey; of a power of attorney from Lucy H. Taylor and Eichard Singleton, deviseesof"Anthony Singleton, deceased, to John D. Munford, constituting him their attorney and authorizing him to manage and dispose of their lands in Ohio, dated July 23, 1832; of a conveyance from. Munford, as attorney as aforesaid, to Wallace of twenty-two hundred and fifty acres of land on the Singleton survey upon Lee’s-creek for the consideration of five hundred dollars, dated October-14, 1833; and a copy of an affidavit of Peyton Eandolph, filed in the land office and bearing date September 11, 1822, by which is proved that at that time Lucy H. Taylor and Eichard Singleton were the only heirs of Anthony Singleton, deceased ; and also a copy of Anthony Singleton’s will, dated July 6, 1795, and of the probate of the same.
    If, when these agreed facts are in evidence, the law of the case is with the plaintiff, judgment is to be entered in his favor, otherwise judgment is to be entered for the defendant.
    *J. Scott & Sow, for plaintiff.
    C. Hammond, for defendant.
   Judge Hitchcock

delivered the opinion of the court:

There is no controversy in this case but that the patent of the-lessee of the plaintiff covers the same land that is covered by the-patent under which the defendants claim, and as this latter patent is anterior in date, the legal title to the premises in controversy is in the defendants, unless their patent is void. That it is void, is insisted by the plaintiff’s counsel on the ground that it is in contravention of the proviso to section 1 of the act of Congress-of March 2, 1807. By this it is provided that no locations shall after that date be made within the Yirginia military district, “ on tracts of lands for which entries have been previously surveyed,” and it is declared that any patents issued contrary to these provisions “ shall be considered null and void.” Swan’s L. L. 134.

The lands patented to Pope and Saunders had been surveyed-for Singleton previous to any entry made by them; of course under this law their patent is void if Singleton’s survey is within its meaning. It becomes necessary, therefore, to ascertain the-object, intent, and meaning of this law. To those acquainted with the subject it is well known that before the passage of this act-it was not unfrequently the ease that entries were made upon, lands which had been previously not only surveyed, but patented. These subsequent locations were sustained if there was any error- or irregularity in those which had been previously made. That-there should be errors and irregularities is not surprising, when we consider the state of the country when those locations and surveys were made. It was a wilderness far distant from the habitations of civilized man. But it was not without inhabitants. The western Indians claimed it as their own, and to protect their real or imaginary rights waged a war of extermination against those who attempted to interfere with those rights. In the times-of these wars, and in constant fears of Indian warriors, were-many, indeed, most of the early locations made. Under such circumstances it would seem to be next to impossible but that there-should have been errors and mistakes. But when peace returned, when the country became better known, locations could be made with greater precision *and surveys executed with more aecuracy. Locators and surveyors, regardless of the claims of those-who owned defective surveys, and who, relying upon the supposed strength of their title, had expended much both of labor and money in reducing the wilderness to a cultivated country, were-constantly in the habit of making new entries ppon these defective locations, and grasping to themselves the lands included therein, made more valuable by honest industry. The necessary consequence was almost perpetual litigation, and a want of confidence and great uncertainty in the titles. To remedy these-evils, the proviso to the act of March 2, 1807, was introduced. It-■was intended to preserve the peace and quiet of the inhabitants-by securing titles previously acquired.” It was intended to protect such surveys as were defective ánd “ which might be avoided for irregularity.” 1 Peters, 628. But it could not have been intended, as we apprehend, for the protection of such surveys as-were absolutely void, or, in other words, such surveys as could not at any time after they were made be, consistently with law, carried into grants. '

The land between the Scioto and Little Miami rivers was set-apart to satisfy claims for military services, due to the officers and soldiers of the Tirginia line on continental establishment, and» could not with propriety be appropriated to any other purpose, until those claims were satisfied ; and no part of it was withdrawn from its liability to be surveyed for military warrants prior to the act of Congress of June 26, 1812. 9 Wheat. 469; 2 Peters, 417. By this act the line usually denominated Ludlow’s line was provisionally established as the western boundary of the reserve (Swan’s L. L. 137), and since that period no locations of military land thereafter located west of that line have been held valid.

If any of these lands have been surveyed for any other purpose • than to satisfy military warrants granted by the State of Yirginia ■for military services, in the Yirginia line or continental establishment, such surveys would not be within the meaning of the act , of March 3, 1807. In the case of Doddridge v. Thompson, 9 Wheat. 469, the entry under which the plaintiff claimed had been made subsequent to the passage of the act upon lands which had •been long before surveyed under the direction of the surveyor-general of the United States; still the defendants were not proteeted by these surveys. The *same state of facts existed in ■the case of Reynolds v. McArthur, 2 Peters, 469, and the result was the same. It is true that in those cases this question does ■ not appear to have been directly made, but had those previous - surveys been within the law, it would have furnished a complete .-and adequate defense. In the case of Miller and. others v. Kerr and others, 7 Wheat. 1, the Supreme Court of the United . States decided that where the register of the land office in Yirginia had by mistake given a warrant for military services in the continental line, on a certificate authorizing a warrant for services in the state line, and in recording it pursued the •■certificate and not the warrant, the court could not support a ■prior entry and survey thus issued by mistake against a senior patent.”

In the case of Lindley and other v. Lessee of Miller, 6 Peters, 666, the same court say, at page 675, in making the cession, Yirginia ••only reserved the right of satisfying warrants issued for military ■services in the state line, on the continental establishment. Warrants of no other description, therefore, could give any right to the holder to any land in this district.” Again, at page 676, “to-cure defects in entries and surveys, was the design of the act of 1807. It was intended to sanction irregularities, which had occurred without fraud, in the pursuit of a valid title. In tho passage of this act, Congress could have had no reference but to such titles as were embraced within the deed of cession.” And again, at page 678, “there can be no doubt but that Congress did intend-. to protect surveys which had been irregularly made, and it is-equally clear they did not design to sanction void surveys. A-survey is void unless made under the authority of a warrant.”

In the opinion of this court, a survey to be protected under" the proviso to the act of March, 1807, must be such as has been made in good faith, under the authority of a warrant for military services in the Virginia line on continental establishment, and it must be, at the time of the subsequent location, a subsisting • survey.

Is the survey, under which the plaintiff claims and in virtue of which he seeks to defeat the title of the defendants, of this description ? It is not a little extraordinary that if this survey was ■ legally made, “in pursuit of a valid title,” no patent should have been issued for the period of thirty-nine years, especially when we take into consideration the fact that, *as early as 1822, at least, there was evidence in the land office that the grantors of the plaintiff’s 'lessor were the sole surviving heirs of Anthony Singleton. This evidence must have been filed for some purpose, and unless that purpose was to procure a patent, it is impossible ■ to conjecture what it might have been. Still no patent is issued for twelve years thereafter. It is equally extraordinary that the-lessor of the plaintiff, if he considered the survey a good and subsisting survey, should in the year 1834 have paid but the trifling . sum of five hundred dollars for twenty-two hundred and fifty acres of land, on Lee’s creek, in the county of Highland. But, al- - though these circumstances may satisfy our minds that the survey was considered of doubtful validity, still they do not prove it to ■ have been void.

The entry upon which the survey is based, was made in 1795, and purports to have been made by “ Anthony Singleton, attorney in fact for Christian Holmer, deceased.” It was surveyed for • Anthony Singleton, “ attorney in fact for Christian Holmer, deceased.”

The question which here arises is, for whom was this survey • made, or rather in whom was the title, so far as title is confirmed ■- by survey ? The services for which the warrant issued were performed by Christian Holmer, and he, his heirs or assigns, were, . :aecording to the laws of Virginia, entitled to the bounty. But as an entry and survey made in his name or for his benefit, it could be of no effect. It was made by his attorney in fact, after his own •death. It can not be doubted that as a general rule the authority •of the attorney ceases upon the death of the principal. If, then, after the death of the principal, the attorney makes an entry, it is done without authority, and of course void. Further, in the case of Galt and others v. Galloway and others, 4 Peters, 345, the ••court say, “ an entry made in the name of a dead man is void.” And the same point was expressly decided in the case of McDonald's Heirs v. Smalley and others, 6 Peters, 261; as a survey, then, in the name of Holmer, or for his use and benefit, this survey is utterly void.

If this is considered as a survey in the name of Singleton, •or for his use and benefit, then the question arises whether he had any right to make the entry. The warrant itself shows, the whole case shows, that he has performed no services to entitle himself to a bounty in lands under the laws of Virginia. *The warrant, it is true, purports to be issued in consideration •of services rendered in the Virginia line on continental establishment. But these services were performed by Holmer, not by .Singleton. The law of Virginia authorizes a warrant to issue to the party performing the services, “ his heirs or assigns.” Swan’s L. L. 112. Singleton claimed no right either as “ heir or assignee.” He was merely attorney in fact. The warrant upon its face shows that it was issued to one having no right to receive it. In our opinion a survey made under such a warrant is not within the meaning of the act of 1807. It is not such a survey as will render void a patent based upon an entry subsequent to its date. It is in fact void, having been made for a person’who had not the .shadow of right to.claim lands within the district.

What the effect would have been had a patent been issued upon this survey of an earlier date than the patent of the defendant, it is unnecessary to determine. As the case is now situated, we have no hesitation in saying that judgment must be entered for ■•the defendants.


source: Caselaw Access Project

author: Judge Hitchcock

license: Public Domain

text:
    Washington Garver et al. v. Wm. Morgan.

      .Feme sole, one of several plaintiffs, marries pending the suit, good plea in abatement.
    Reserved in the county of Columbiana.
    This is an action on the case for a nuisance. It was originally tried in the court of common pleas, and removed to this court by appeal.
    At the October term of this court in the county of Columbiana, 1835, the defendant filed a plea, verified by affidavit, that since the last continuance, “to wit, on February 12, 1835, Matilda Garver, one of the plaintiffs, intermarried with one Robert L. Flemming, and that the said Matilda is still under the coverture of the said Robert L. Flemming,” and concluding in .abatement.
    To this plea the plaintiffs demur.
    Looms &' Metcalf, for the plaintiffs, submitted no argument.
    *Wm. D. Ewing, for the defendant, cited the following authorities: 10 Mass. 180,181; Gil. Hist. & Prac. C. C. 254; 17 Mass. 341; 7 Pick. 62-64; Bac. Abr., Abatement, L.; Com. Dig., Abatement, E. 2; Ib., E. 7; Ib., H. 42; 1 Chit. Pl. 22, 437, 438; 6 Term, 265; 4 East, 502; Arch. Civil Pl. 302, 345; Gilmer, 145.
   Judge Hitchcock

delivered the opinion of the court:

It is well settled that when a feme sole plaintiff marries, after the commencement and during the pendency of the suit, it may be pleaded in abatement.

That the same principle applies where there are. two or more plaintiffs in the same case, and one of them intermarries, is shown by the following authorities: 10 Mass. 179; 17 Mass. 341; 7 Pick. 62.

The demurrer is overruled.


author: Judge Wood :

text:
    Charles Fight v. The State.
    "Where pending a trial upon a criminal prosecution, the accused, being on bail,, absconds, it is legal to proceed with the case, and to receive a verdict of guilty in his absence.
    An indictment charging that the defendant uttered, in payment, counterfeit, coins, “ made and counterfeited to the likeness and similitude of the good, true, and current money and silver coin, currently passing in this state,, called 1 Spanish dollars,’ is good,” but must be sustained by proof.
    The writ of error in this casé was made returnable to the court, in bank. The facts, as they appear in the record, are these r The grand jury of the county of Brown, at the August term of the-court of common pleas, 1834, returned a bill of indictment against the plaintiff, for uttering counterfeit coin, currently passing in this state, called Spanish dollars, knowing it to be counterfeit. The plaintiff was arraigned at the same term, plead not guilty,, and on his motion, and giving security, the prosecution was continued. On the fourth day of the succeeding November term the-plaintiff was placed on his trial before the jury, and the testimony being partly heard, the court adjourned until the next morning,. November 5th, at which time the court again met, and the prosecuting attorney appeared in behalf of the state, but the plaintiff being called made default. The court then, on motion, issued a. bench warrant fpr the plaintiff, and proceeded to charge the jury. The jury retired, and on the next day, November 6th, came into court with a verdict of guilty, which was received by the court in the absence of Fight. At the March term, 1835, Fight appeared in court and moved for a new trial, and assigned the following as ■■ reasons:
    *1, That the proceedings had, on the trial, at the last term, were irregular and contrary to law. 2. The verdict was contrary to law and evidence, and should have been for the said Charles Fight, and not against him. 3. The jury heard only apart of the testimony. 4. The verdict was brought into court in the absence of said Charles Fight. 5. The said Charles Fight was-three times,called to come into.court, but made default, and his-recognizance was forfeited. 6. After the forfeiture of the recognizance, and when the said Charles Fight was absent, the jury brought in their verdict against him. The court overruled this motion, and Eight then moved in arrest of judgment, and assigned the following reasons:
    1. It appears the court, after having heard a part of the testimony, on the trial of the ease, adjourned without making any disposition of the jury. 2. That the third count in the indictment is insufficient, because it charges the coin attempted to be passed to be in the likeness and similitude of Spanish dollars, which are not current coin in this state. Several other points were made in this motion, but, like the first, do not present objections to the proceedings appearing on the record, and are not deemed necessary to be again stated. The court overruled this motion in arrest of judgment, and sentenced the plaintiff to imprisonment in the penitentiary for three years.
    Morris, for the plaintiff in error.
    Jolliefe, prosecuting attorney, for the state.
   Opinion of the court, by

Judge Wood :

The plaintiff seeks to reverse the decision and judgment of the court of common pleas, and has assigned for error, its opinions on both the motions for a new trial, and in arrest. Bid the court of common pleas err ? We have endeavored to consider the case with that deliberation a due regard to the rights of the plaintiff required of us; and if our investigation-had led us to doubt the correctness of the proceedings of the common pleas, it would be no less our pleasure than our duty to give him the full benefit of such doubts. No man should be brought within the energies of the criminal law, and subjected to its penalties, but upon full and deliberate ^conviction that he has violated its principles, but when such conviction is forced on the mind, it is to be borne in recollection that the community has its claims, and while innocence should be protected, guilt should be certain to receive its reward. The record is prolix. It shows that every point was contested with much zeal and perseverance before the court of common pleas. We have reviewed the whole case, and it appears to us there are but two questions arising on the record to be determined worthy of a moment’s consideration; and they, only, will be noticed. 1. Where a prisoner is let to bail, put on his trial and absconds during its progress, is it error to proceed with the trial, and receive the verdict in his absence? 2. Is the description of the counterfeit coin, as “ Spanish dollars,” sufficient?

In England, in misdemeanors, where the defendant is on bail, a trial, conviction, and sentence may be had in his absence. He is present or not, at his option. In felonies, a different rule, it is true, prevails. The accused must be present, when every principle of the law is discussed and determined in which he is concerned. The reason of this difference in the mode of proceeding in the two cases can not, perhaps, at this time, be satisfactorily ascertained ; or rather, no satisfactory reason can be given for it. A prisoner, in close custody, may be so easily oppressed and deprived of his rights, and it would be so extremely difficult for him to make known his injuries, and obtain redress, that to prevent unnecessary restraint, and to afford the accused an opportunity of being fully and fairly heard, the rule in reference to him may be reasonable and salutary; but it would apply with force to all classes of offenders. But in felony, the accused is not necessarily confined within the four walls of the prison. Both be.fore and after the conquest, all felonies were bailable by the an- • cient common law. (Stat. Westm. 1 and 3 Edward I./ c. 15; :23 Henry Till., c. 9, and 1 and 2 Phil, and Mary, c. 13), except 'treason, murder, and certain other crimes from those for which 'the king’s justices may bail.. 4 Bl. Com. 268. But the court of ¡king’s bench, or any judge thereof in vacation, may, at their disoretion, admit persons to bail, in all cases whatsoever, 3 East, 163; .5 Johns. 169 ; but none can claim this benefit de jure, 2 Hale, 129. .If on bail, I apprehend, neither the courts in Great Britain, nor •the Uni ted States, would proceed to impanel a jury, in a trial for felony, ^unless the accused were present, to look to his challenges. If the trial, however, is once commenced, and the prisoner in his own wrong leaves the court, abandons his case to the management of counsel and runs away, I can find no adjudged case to sustain the position, that, in England, the proceedings would be stayed. Such a case must form an exception to the general rule, and the verdict may be legally received in the absence of the accused. The prisoner can not be deprived of his right to be .present at all the stages of his trial; but that he must be, under ..all circumstances, or the proceedings will be erroneous, can not, ■w.e think, be sustained.

2. Is the indictment sufficient? The statute on which this indictment is framed, is section 28 of “an act for the punishment of crimes.” It reads thus, “ that if any person shall counterfeit any of the coins of gold, silver, or copper, currently passed in this state, or shall utter or pút off ány such counterfeit coin or coins, knowing them to be such,” etc. The words of the indictment are, “that the said Charles Fight,” etc., “four pieces of false and counterfeit money and coin, made and counterfeited to the likeness and similitude of the good, true, and current money and silver coin, currently passing in this state, called Spanish dollars'' etc., “ did utter and tender in payment,” etc., “ and put off.” The plaintiff objects to this averment, because the coin is called Spanish dollars, which he contends are not money current in this state. This,'in our view, was a fact exclusively for the jury, whether there was such coin as is called Spanish dollars, and whether it was currently passed in this state ; and the jury having found these facts, it is far from our duty to disturb the decision of the court of common pleas, in refusing to grant a now trial, especially íd the absence of the testimony on which that court acted, and which is not contained in the record; and it surely forms no ground for reversing the decision of that court for refusing to sustain the motion in arrest. Judgment affirmed.-


author: *Judge Hitchcock

text:
    *Samuel Strader v. Heirs of Otway Byrd et al.
    A decree upon a bill of review can not be again reviewed in a second bill of review.
    Reserved in the county of Highland. This is a bill of review, seeking to reverse a decree of this court made at the June term, 1831, in Highland county.
    The facts of the case, as they appear upon the record, and so far as it is necessary here to state them, are as follows: The original bill was filed in the court of common pleas of Highland county, at the June term of that court, 1816, and the necessary steps taken to bring the defendants before the court. The cause was continued from term to term, until the March term, 1822, when, upon final hearing, the bill was dismissed. Notice of an appeal was given by the complainant, but the appeal was never perfected. At the November term of the court of common pleas, 1825, a bill of review was filed by the complainant, to which the defendants demurred, and at the October term, 1826, the demurrer was overruled, the former decree reversed, and the case continued for hearing upon the merits, according to the practice in this state.
    At the April term, 1828, the case came on for hearing, and a decree was rendered for the complainant. From this decree, the defendant appealed to the Supreme Court, where the cause was continued until the June term, 1831, when, upon hearing, the demurrer was sustained and the bill dismissed at complainant’s costs.
    To reverse this decree of dismissal, the present bill of review is brought and filed on June 10, 1834.
    The defendants, who have answered, insist, among other things, that the cause was originally tried upon its merits in the court of common pleas, and the original bill dismissed. That afterward a bill of review was filed in that court to which the defendants demurred, and, on hearing, the demurrer was overruled, the original decree reversed, and the case set down for hearing on the merits, and, upon hearing, a decree was pronounced in favor of the complainant, from which the defendants appealed to the Supreme Court. That, on hearing, in the last-named court, the demurrer was sustained and the bill dismissed.
    T. and W. Scott, for complainants,
    insisted that the statute of Ohio, allowing bills of review, was framed with reference to the chancery practice in this state, and not with reference *to the practice of the high court of chancery in England. In England the facts upon which the decree is based are embodied in the decree. On this account, errors in law must be confined to the decree, while, by the practice in Ohio, errors apparent in any part of the proceedings may be assigned as well as errors in the decree. In order to avail themselves of the original decree, the defendants should have pleaded that decree in bar to the review, and should have demurred merely to opening up the enrollment. By demurring to the bill of review, the whole case was opened.
    They further urged that inasmuch as the object of this bill was to reverse a decision of this court, it was not a second bill of review after demurrer to a former bill of review allowed. That the defendants, in order to avail themselves of this defense, should have appealed from the order of reversal made in the court of common pleas. But they did not appeal from that order. They waited until a final decree was made upon the merits, and from that appealed. They cited 2 Ball & B. 150 ; 1 Atk. 291.
    They also submitted an argument upon the merits of the case, but it is unnecessary to mention it.
    G-. Collings, for the defendants,
    insisted that the rule in England is well established, that a bill of review would not be entertained after demurrer to a former bill of review allowed. That although the practice in this state upon bills of this description is different from the practice in the high court of chancery in England, yet the spirit and reason of the rule would apply as well in this country as in that. The reason of the rule is, that an end may be put to litigation. After two concurrent decrees it is time litigation should be stayed.
    He further insisted that the defendants could not have appealed from the decree of reversal in the court of common pleas, because that was not a final decree, the cause being continued in that court for further hearing. But when appealed, the first duty of the appellate court was to decide the question upon demurrer, upon which question, according to the practice adopted, the whole case would be examined. He cited 2 Ohio, 381; 3 Ohio, 354, secs. 55, 58, of Chan. Prao. Act; 19 Johns. 443; 17 Johns. 548.
   *Judge Hitchcock

delivered the opinion of the court:

The first question, and the only one presented in this case which it is necessary to consider, is whether a decree made in a bill of review can afterward be re-examined by a subsequent bill of review. Although this question is not presented by plea, it is done by answer; and in the case of White v. Bank of the United States, 6 Ohio, 588, it was held that any defense which can be made by plea may be made by answer. This question is a new one, so far as relates to practice in this state. We have never'known a case where an attempt has been made to sustain á second bill of review, nor have we known one in which such bill has been filed.

Section 3 of the act directing the mode of proceeding in chaneery, 29 Ohio L. 81, directs that the courts “ shall, in all things, be governed by the known usages of courts of equity,except when it may be otherwise provided by law. We have been anxious to ascertain the usages of courts of equity upon this subject, but counsel have referred to few authorities. Indeed, none have been cited bearing directly upon the point. In 2 Maddox Chancery, 451, it is said: “ A bill of review does not lie after a demurrer to a former bill of review allowed.” And again, on the same page: “If upon bill of review a decree has been reversed, another bill of review may be brought upon the decree of reversal.” To sustain this latter dictum, Mitford’s Chancery Pleadings, 66, in note, is cited. In Cooper’s Equity, page 92, it is said : “And a bill of review may be brought after a bill of review already filed, as if upon a bill of review a decree has been reversed, another bill of review may be brought upon the decree of reversal,” and 2 Chancery Precedents, 633, is cited. And this latter work we take to be the authority upon which the dicta to the same effect in Maddox and Mitford are founded. This work is not within our reach, and we have not been able to examine it. In the case of Barben v. Searle, 1 Vern. 407, Sergeant Maynard stated in argument, “ that bills of review are not favored, and are tied up to strict rules,” and for authority cited the case of Dunny v. Filmere, where, as he said : “ Upon bill of review the court had decreed the whole estate to the plaintiff, and though it appeared from the face of the decree that the plaintiff had title to one moiety only, there it was resolved that no bill of review would lie upon a bill of review; and the defendant was left without ^remedy.” This, it is true, is merely the statement of counsel, but it is not controverted by the chancellor. ■ Upon the examination of the case of Dunny v. Filmere, 1 Vern. 135, it will be found that the point decided was that “a bill of review was not, after a demurrer to a former bill of review, allowed.” The same point was decided in Pitt v. Earl of Anglus, 1 Vern. 441. From these authorities there would, upon slight examination, seem to be some uncertainty respecting the question under examination, and perhaps some apparen't contradiction in the cases. But it is believed there is none in reality, and that from the whole this rule of practice may be extracted: When a demurrer to a bill of review has been sustained or allowed, in other words, where, according to our practice, the bill has been dismissed, and the original decree thereby affirmed, no subsequent bill of review- will lie; but where the original decree has.been reversed, this decree of reversal may be reviewed, and this is believed to be according to the common usages of courts of equity” in England. This rule of practice is based upon sound reason. Where there have been two concurrent decrees, as in the case of the demurrer allowed, it is time that the litigation should be ended, but where the original decree has been reversed there the matter of equity may still be considered as doubtful.

It is urged, however, that although this may be the practice in the high court of chancery in England, still that it ought not to prevail here, inasmuch as our practice upon bills of review is, in other respects, different from the practice of that court. An examination of our statute regulating the practice in chancery would not lead us to this conclusion. It merely provides that petitions for review may be filed within five years from the entry of the original decree. It is not in virtue of this clause of the statute alone that bills of review are allowed.- It was intended rather as a limitation of the time within which they might be filed. In England they may. be brought at any time within twenty years from the entry of the decree (Crabb’s Eq. PI. 92); in this state at any time within five years. In both countries the limitation of time within which writs of error may be brought at law and bills of review in chancery is the same, although in England, so far as bills of review are concerned, it is by analogy to the act of parli ament fixing the time within which writs of error *shall be brought, while in Ohio it is by express enactment. What practice has been adopted under this statute which would lead us to depart from the “ known usages of courts of equity” in England? In that country we know all the facts upon which the final order of the court ír made are embodied in the decree. Of course, upon the bill of review the court look only to the decree, and if that be reversed it is for errors therein apparent. In this state .it is not customory to embody the facts upon which the opinion of the court is based in the decree, but all the'evidence taken is a part of the case. It is on file, and many times is made a part of the record. The statute requires that a complete record shall be made of the proceedings, and by our system a court of chancery is as much a court of record as is a court of law. Inasmuch, then, as the decree itself, according to the practice adopted, is merely the consideration of the court upon the equity of the case, arising from all the facts and circumstances taken in connection with the pleadings, it has been found necessary, in order to give effect to the bill of review, to look into all the facts and circumstances, the process, pleadings, and proceedings, as well as into the decree. And if upon the whole matter it is ascertained that there is error, then the original decree is reversed, otherwise it is affirmed. But does this course of practice interfere with the English rule that after demurrer allowed to one bill of review, a subsequent bill of review can not be sustained? It is believed that it does not. That rule is predicated upon the reason that where there have been two concurrent decrees, there should be an end to litigation. Adopt a different principle and there will be no end. The case before the court has been depending in one shape or another for more than nineteen years, and if the principle contended for by the complainant’s counsel be correct, there is no prospect of its termination. The mistake of counsel seems to be as to the effect of demurrer to the bill of review. That demurrer admits all the facts well pleaded, but in deciding it the court look into all the facts upon which the original decree was predicated, as was held in the case of Heirs of Ludlow v. Kidd’s Heirs and others, 2 Ohio, 381, and upon the whole case determine whether there is or is not error. If there is no error the bill is dismissed, and thereby the original decree is affirmed. So that we have two concurrent decrees, as is the case according to the English practice, where *a demurrer is allowed to a bill of review. If this rule is founded upon good reasons, and we think it is, it is of equal force in this state as in any other country; and we have come to the conclusion that where the original decree has been affirmed on bill of review, no subsequent bill of review can be allowed.

It may perhaps be thought that this determination would lead to the conclusion that a decree of this court, made on appeal, and where the decree was the same as that which had been made in the court of common pleas, could not afterward be reviewed. But it is not so. By the appeal, the decree of the common pleas is vacated. The case stands as if no decree had ever been made. This court consider it as an original case, and there can not be the two concurrent decrees until there has been a review and affirmance of the decree which this court shall originally have made.

Counsel for the complainant further insists, that admitting the foregoing principles to be correct, still that this case can not bo considered in the light of a bill of review after demurrer to a for-' mer bill of review allowed, because there has been but one decree in this court, and the object is to reverse that decree.

What are the circumstances of the case? In 1822 a decree was made in the court of common pleas, in the original case. From this decree there was no appeal. Although notice was given, the appeal was never perfected. It is, then, a subsisting decree, of precisely the same binding force as if made in this court. Originally it might have been vacated by appeal, now it can not be done unless by review. For the purpose of reviewing this decree, a bill was filed in the.court where the decree was entered in 1825. To this bill of review there was a demurrer, and upon hearing the original decree was reversed. When reversed, the case was continued for further hearing, and upon such hearing a final decree was entered for the complainant. Thereby, if there had been no further proceedings, the original decree would have been vacated. But the defendants were not satisfied with the decision of the common pleas, and appealed to this court. The effect of this appeal was to vacate all the orders and decrees of the common pleas on the bill of review, and to reinstate the original decree of that court. Counsel for defendant seem to suppose that this appeal brought up the original case as an original *case. Butitisnotso. That had been decided six years before, and could not be appealed unless it was- done within thirty days after the close of the term in which the decree was entered. If the position of the complainants counsel was well taken, it would be in the power of a party to a proceeding in chancery to evade, in a great measure, the law regulating appeals. If he failed to prosecute an appeal from the original decree, he would have nothing more to do than to file a bill of review, and when that was decided, to sue an appeal, and thereby present the case to the appellate court as upon the original bill. Such practice will not be sanctioned by this court.

By the appeal, the bill of review and proceeding under it were brought to this court and not the original case, any further than it was connected with this bill. It was by this court to be considered exactly in the same manner as if it had originated here, for the purpose of reviewing one of its own decrees. It was so treated. This court, it is true, according to its practice, examined the original case, but not as an original case, but as part and parcel of the bill of review. Upon such an examination the court being of opinion that the original decree was in accordance with the equity of the case, dismissed the bill, thereby affirming the original decree. It is manifest, from all these facts, that the present case is nothing more nor less than a bill of review, after demurrer to a former bill of review allowed. There are two subsisting concurrent decrees, and “ according to the usages of courts of equity,” this bill can not be sustained, but must be dismissed.


author: Judge Wood:

text:
    Benjamin Tappan v. James Wilson.
    Terms of general abuse,, when printed and published, are not libelous.
    The plaintiff, in his declaration, states, in substance, that he was one of the judges of the United States court for the district of Ohio, duly appointed by the President of the United States, to hold his office until the end of the next session of Congress, which was on the 30th day of June, then last passed; and whereas, it was expected and believed that the said Benjamin would be nominated by the President of the United States, to the senate of the United States, for ^confirmation in his said office, and that the advice and consent of the senate would be asked to the making of said appointment; yet the said James, well knowing the premises, etc., and to cause it to be suspected and believed, etc., that said Tap-pan, while he was one of the judges of the United States court, as aforesaid, was the editor of a party newspaper, and was the author of filthy and abusive articles in a newspaper printed in Steuben-ville in said county, and was a purse-proud aristocrat, and was anxious to put down the Bank of the United States to promote his own pecuniary interest thereby, and to cause it to be believed, that he, the said Benjamin, was the author of violent abuse of his fellow-citizens, the real democracy of the country, and that he was desirous of increasing his income by oppressing the farmers and mechanics and lowering their prices; and to cause it to be supposed and believed that the said Benjamin did libel the characters of members of the said United States Senate, with the intent to influence and induce the said senate to withhold their advice and consent to the appointment of the said Benjamin to the office aforesaid, and thei’eby to injure the said Benjamin in his said character, office, and standing, did, theretofore, to wit: on the 19th day of March, in the year of our Lord 1834, at Steubenville, in said county, falsely, wickedly, and maliciously compose and publish, and cause and procure to be published, of and concerning the said Benjamin, a certain false, scandalous, malicious, and defamatory libel, in one part of which there was, and is, contained the false, scandalous, malicious, defamatory, and libelous matter following, of and concerning the said Benjamin, that is to say: “Mr. Editor Tappan, being a purse-proud aristocrat, and having a large amount of money in stocks, in several of the Ohio banks, is anxious to put down the United States Bank, so that his stock may become more profitable to him than it is at present. Tappan well knows that if the United States Bank notes are withdrawn from circulation, the notes of the local banks will be substituted, greatly to his profit. This is his democracy. He is not contented with ten or twelve per cent, upon his money, but wants fifteen or twenty. This is the true cause of his violent abuse inhis.mwc? machine (meaning the American Union, a newspaper printed and published in Steubenville aforesaid) of the real democracy of the country, of those who wish the farmers to get a good *price for their produce, and who wish wealthy men, like the said editor, to be confined to moderate profits upon their money.” And, in another part of said libel, the following: “ Mr. Editor Tappan is an officeholder. He gets one thousand dollars a year for about one month’s service, and yet he has the conscience to desire to make his one thousand dollars worth twelve hundred and fifty, by oppressing the farmers and mechanics, and lowering their prices. Farmers and mechanics think of this.” And in another part of the said libel the following: “Judge Tappan, having in his last mud machine (meaning as aforesaid, also meaning that the said newspaper was owned and published by the said Benjamin, while judge, as aforesaid) published the paragraph from the Globe, headed, the veterans of the revolution, he ought, we should suppose, to have availed himself of the earliest opportunity to show that the Globe had made a misstatement; but the judge has not yet done so. What makes the matter worse, on the part of Judge Tappan, is the fact, that the above explanation was made in the United States Senate, on the 25th February, and was published in the National Intelligencer of the 27th, yet the offensive article is republished in the said mud machine on the 12th March inst., without Mr. Webster’s explanation and denial;” thereby meaning that the said Benjamin had published a wicked and malicious libel on the said Webster, then being a member of the United States Senate. And, also, in another part of said libel, the following: “ What does that gentleman expect to gain by attacking the character of Mr. Webster ? It is true he may gratify his propensity for misrepresentation, and that is all” (meaning he, the said Benjamin, was in the habit of publishing falsehoods). “His abuse of Mr. Ewing, because that gentleman franked some speeches to individuals of this section of country, heretofore differing from Mr. Ewing in politics, is further evidence of the malice which he feels toward all who differ with him in opinion.” By means whereof, etc. To this declaration the defendant filed a general demurrer.
    Tarran, prose.
    Collier and Marsh, for defendant.
   ^Opinion of the court, by

Judge Wood:

But one question is raised for decision: Are the matters set forth in this declaration, as there pleaded, libelous? A libel is a censorious or ridiculing writing, picture, or sign, made with a mischievous and malicious intent toward government, magistrates, or individuals. It does not necessarily charge the plaintiff with a crime, for if its design be wanton and malicious ridicule, and the tendency of the publication to hold up the plaintiff to the scoffs and sneers of society; to degrade him and lessen his standing, an action may well be sustained. So, likewise, if its tendency will naturally excite to passion and revenge, and consequent breaches of the peace. Justice Thompson, in the People v. South-wick, 9 Johns. 214, says: “ To permit the press to become the instrument of malicious ridicule and contempt of individual character, would not only corrupt the moral taste, but speedily set society by the ears; and the common good of every people demands that, thus far, it should be restrained.” An editor may, nevertheless, comment freely on the acts of government, officers, or individuals, and indulge in occasional mirth and wit, and it is only when the character of the publication is malicious and its tendency to degrade and excite to revenge, that it is condemned by the law, and subjects the publisher to sustain a prosecution.

We have carefully perused this declaration, and are unable to perceive that it charges the defendant with having published of the plaintiff such terms of reproach or epithets, as can be seriously claimed, in their natural tendency, to excite the passions to revenge; nor can we discover anything which is calculated, in its result, to cast upon the plaintiff that contempt, which is calculated seriously to degrade him, or lessen his standing in the esteem of the world.

The declaration does not charge the publication to be made of the plaintiff, as judge; but states the fact that he was a judge of said district court, and avers the publication was of Benjamin Tappan, innuendo, that it was made of him as a judge. The office of the innuendo is to direct to its object the charge made. It can neither enlarge nor restrain the natural sense and import of the words used; if they do not convey the sense and meaning, when their application is explained, the innuendo can not aid them. On the whole, we are of the opinion the demurrer should be sustained.


author: Judge Lane

text:
    *Catherine McFarland v. Febigers’ Heirs and others.
    Where a wife is named only in tbe clause describing parties, and in the attesting clause of a deed, tbe covenants all being by the husband alone, and no terms employed touching the wife’s contingent estate of dower, the wife is not concluded, though she join in a formal execution of the deed.

      Feme covert executing a deed purporting to convey her dower, with the belief that it is defective for that purpose, with respect to which she is silent, is not affected by such silence if the deed prove inoperative.
    This cause was adjourned from the county of Hamilton. It was a bill in chancery for dower, filed in the usual form. The answer of the defendants admit that the husband of the complainant was seized of the lands in which dower is sought, but avers that the two joined in a conveyance to the Bank of the United States, under whom the defendants claim. This deed is made an exhibit. It commences thus: “ This indenture made," etc., “be-' tween S. McFarland, and Catherine, his wife, of the first part, and the Bank of the United States, of the second part, witnesseth, that S. McFarland for and in consideration," etc., “ hath sold," etc., running through all the operative parts as the single acts of S. McFarland, and concluding thus : “ In' witness whereof said Stephen and Catherine have hereto set their hands and seals." It is signed and duly acknowledged by both.
    The defendants in their answer put certain interrogatories to the complainant, and call upon her to answer them. In her answer she avers that the land was purchased with her individual separate property derived from her father, and brought to her husband at their marriage ; that the price for which it was sold was applied to the payment of debts contracted by her husband, as security; that her family and' herself derived no benefit from it; that she was induced to execute the deed to preserve a good understanding and peace with her husband, and did it unwillingly; that she was apprised before she executed the deed that it was insufficient to deprive her of her dower; that she executed it in this belief, and would not have executed it at all, had she considered it as extinguishing her rights. The cause rested on the bill and answers and the deed.
    Morris and Drake, for complainant.
    Wright and Walker, for defendants^
   Judge Lane

delivered the opinion of the court:

The defense rests upon two positions: 1. That the deed itself presents a bar. 2. That the complainant practiced *suck a fraud, in the execution of the deed, as precludes her from asserting her claim.

However trite the saying that courts should favor dower, it must not be forgotten in adjudicating these questions. This estate is given, by the common law, as a kind of compensation for the disabilities attaching to the wife in a state of coverture. It is not to be cut off without a somewhat strict compliance with the formalities which the law has provided as securities against imposition.

The mode of destroying dower, which is an American usage, is by the wife joining with the husband in a deed containing words calculated to operate upon her contingent rights. Unless the deed contain words applicable to her estate, and evinces her intention to convey it, it is the deed of the husband only. 9 Mass. 218; 13 lb. 223 ; 3 Mason, 347; 4 Kent’s Com. 58. This deed contains no Fuch terms. The wife joins in nothing that touches her rights. The recitals go no further than to assert that the wife witnesses .that the husband conveys his estate. The husband alone covenants; he alone is concluded.

\ The alleged fraud consists in the facts that a married woman joins her husband in a deed which she conceives to be inoperative as to herself, but is silent upon that subject. Whatever might be the effect of such conduct in one acting in her own right, and making her own contracts, it can not be imputed as a fraud to a married woman, disabled to contract except upon one subject, and upon that only in prescribed forms. The case is not like that of Smiley v. Wright. There the woman was a feme sole when the transactions took place that were held to bar her of her then subsisting dower. Here the complainant had no agency in making the contract or in preparing the deed. All this the purchaser transacted with the party whose title he obtained. The wife was passive. She was not bound to be otherwise. She assigns a sufficient reason for her passiveness and for her action, as far as both went. In her circumstances, there' is no taint of fraud in her conduct. Her right remains unaffected by it, and stands upon the terms of the contract. As these do not conclude her, she is entitled to a decree for dower.


text:
    *Wood and Abbott v. Funk and Shultz.
    Where the natural interpretation of the terms used in a plea shows a good defense, exception can not be taken on general demurrer.
    Discharge under the insolvent law, on process from a state court, discharges from imprisonment, on process from the United States circuit court.

      This cause was adjourned from the county of Hamilton. It was an action of debt on a prison bounds bond. The following are the facts of the case:
    At the July term, 1833, of the circuit court of the United States for the district of Ohio, the plaintiffs, being citizens and residents of the State of Pennsylvania, recovered a judgment, against Bailey Keys for six hundred and sixty-four dollars and fifty-seven cents damages, with costs of suit, in an action of assumpsit on a promissory note.
    On November 5, 1833, a ca. sa. was issued on the judgment, directed to the marshal of the district. Keys being arrested, on the 21st November he executed a bond to the plaintiffs, together with the defendants, as securities, in the sum of one thousand three hundred and ninety-four dollars and forty-six cents, with a condition that he would abide within the jail limits until legally discharged.
    In August, 1834, Keys was discharged under the insolvent law of Ohio. He soon after went without the prison bounds, when this suit was brought.
    The declaration is in the usual form, Keys being returned “ not found.” In addition, it alleges that when the judgment was obtained, the plaintiffs were citizens and residents of Pennsylvania, and have been ever since.
    The defendants plead in bar of the action against them, that in February, 1834, Keys being under arrest by virtue of an execution issued from the court of common pleas of Hamilton county, applied to the commissioner of insolvents for the benefit of the act for the relief of insolvent debtors; that he exhibited to said commissioner a schedule of his property, and of the debts which he owed, and among others the judgment of plaintiffs ; that he executed an assignment of his property to the commissioner and took the. oath required by law, and obtained from him a certificate of his having complied with the act; that the commissioner returned his proceedings to the court of common pleas at August term, 1834, when Keys appeared in court and presented his petition for a final discharge ; that the court, after examining the proceedings, did grant, order, and adjudge to said Keys a certificate of his having complied with the provisions of the act and obtained the relief therein provided, which judgment being in full force, Keys bocame legally discharged from imprisonment, *and accordingly went without the limits of the jail. To this plea there is a. demurrer, and whether it is a bar to the action is the only question for the decision of the court.
    Star, for the plaintiff,
    and in support of the demurrer, insisted that the plea was insufficient in not alleging that a certificate of discharge, in form, had issued from the court of common pleas of Hamilton county to the sheriff, for the discharge oí Keys. Also, that Keys, being in custody under the process of the federal court, could not be lawfully permitted to leave the bounds, upon, a discharge, upon process from the state courts.
    Eox, contra.
   Judge Lane

delivered the opinion of the court:

The plaintiffs’ counsel insists that the certificate of the court,, that constitutes the disehai'ge of an insolvent debtor from custody, is not sufficiently set out in the plea. This objection is not well taken by a general demurrer. The natural interpretation of the defendants’ averment shows a substantial compliance with the law.

The important inquiry upon these pleadings is, whether the insolvent laws of Ohio operate to discharge from imprisonment a debtor in execution under process from the circuit court of the United States, on a judgment recovered in that court by a citizen of another state? This has been a point of much difficulty, from, which we are now in a great measure relieved by the action of the proper functionaries of the United States themselves. We have only to follow the Supreme Court of the United States to decide this case. That court has adjudged that the right to imprison on process is no part of the contract; that a discharge from imprisonment does not impair its obligation. 4 Wheat. 200; 12 Wheat. 370. That, though state laws by their own power do not control or affect the process of the United States courts, yet Congress may adopt such laws directly, or may confide authority to the courts to do it. 10 Wheat. 1, 57; 12 Wheat. 213.

The act of Congress of December, 1828, adopted for the circuit courts of the United States sitting in Ohio, the forms of process and modes of proceeding then existing in our highest state courts of general jurisdiction, including the exemptions *from arrests and imprisonments provided by the state laws. The insolvent laws of Ohio provided for liberating persons imprisoned for debt in 1828. The subsequent law contains similar provisions, and the act of Congress preserves the law of 1824, in its provisions embodied in the law of 1831. No change was made in the forms •of process or modes of proceeding. Upon the principles settled (9 Pet. 362), we hold that Keys was legally discharged, and that judgment on this demurrer be given for the defendants.


author: Judge Collett

text:
    Lessee of A. and W. H. Ewing v. H. Higby.
    In a proceeding by administrator to sell decedent’s real estate, for the payment of debts, if minor children, not named in the petition, actually have an appearance entered for them in court by their guardian, pending the petition, they are bound by the order of sale. The irregularity does not affect the title.
    fíale of a part of a tract of land maybe made by an administrator, though the petition prays, and the court orders the sale of the whole.
    An equitable title may be sold by an administrator.
    An administrator selling real estate, und'er an order of court, may convey to the assignee of the original purchaser.
    This cause was adjourned from the county of Wood. The whole •case is fully stated in the opinion of the court.
    Coeeinbery and Seine:, and O. Parish, for the plaintiffs.
    J. M. May, Wilcox and Andrews, for defendant.
   Judge Collett

delivered the opinion of the court:

On the trial of this ejectment in Wood county, a verdict was •given for the plaintiffs, and a motion made by the defendant for a new trial, which was reserved to be decided in this court.

This action is brought to recover the undivided three-fourths of ¡lot No. 572 of five hundred acres in the United States reserve of •twelve miles square, in the county of Wood. On the trial it was admitted that Samuel Ewing died seized in fee simple of this lot, and it was proved that the lessors are two of his children and heirs. The possession of the defendant was admitted. After this case had been made by the plaintiffs, the defendant gave in evidence a copy of the record in the court of common pleas for the county of Wood, of the proceedings and orders of the court on the petition of John Hollister, the administrator of said Samuel Ewing, deceased, from which it appears that at the April term of the court, the administrator filed his petition, which stated the deficiency of assets, and necessity to sell this whole tract to pay the debts due from the estate, and that Samuel A. Ewing and John A. Ewing were the sons *and only heirs of Samuel Ewing, deceased, and prays that they may be made parties, etc. At October term, 1825, an order was made on the petition that the said Samuel A. Ewing and John A. Ewing, minor heirs, etc., should be cited to appear at the next term, to show cause why an order should not be made to sell said tract of land, or such part thereof as might have belonged to the intestate. At the same time, Thomas W. Powell was appointed guardian ad litem for the heirs, and Samuel Spafford, Ambrose Rice, and John Webb were appointed to appraise the land; afterward a citation issued to Payne C. Parker, guardian of Samuel A. and John A. Ewing, minor heirs, etc., citing him to appea^at the next term of the court, to show cause why an order to sell the land should not be made, which was served and returned to the next term. At the next term, which was in April, 1826, the court appointed Robert Forsythe an appraiser, in the place of John Webb. Hiram P. Barlow, guardian of the lessors, came into court and acknowledged notice of the petition to sell said land, and the appraisers returned their appraisement of an undivided three-fourth part of said land at two hundred and seventy-five dollars. On the coming in of the report, the court made this order: “ The appraisers heretofore appointed to appraise the real estate of Samuel Ewing, deceased, came into court and made report of their doings, as per appraisement on file, and it appearing to the court, by the settlement of said administrator, that said estate is altogether insolvent, it is therefore ordered by the court that the whole of said lands be offered for sale, under the provisions of the statute in such case made and provided.”

The defendant also gave in evidence a deed, made by the said administrator, Samuel Hollister, and duly executed, dated October 14,1826, to Elnathan Corey, for an undivided three-fourths of the said five hundred acres, which recites, that in pursuance of the-order of court, after giving notice of the time and place of sale* according to the statute, he had sold said three-fourths of said land at public sale, to Benjamin E. Hollister, for two hundred and fifty dollars; that Benjamin E. Hollister had relinquished his right to Elnathan Corey; and then proceeds, that in consideration of the payment of said two hundred and fifty dollars by the said Corey, he, the said administrator, grants, bargains, and sells to said Corey, liis heirs and assigns, forever, “all the equitable interest of and to the said undivided three-fourths *of said tract of land of the said intestate at his death,” etc., “ and all the right, title, and interest which the said Samuel Ewing had, at his death; to the undivided three-fourths,” etc. Also, a decree of the court of common pleas of the county of Wood, in a suit in chancery, in which Solomon Sibly was complainant, and William A. Ewing, John A. Ewing, William H. Ewing, and Anthony Ewing, heirs of Samuel Ewing, deceased, are defendants, by which an undivided fourth part of the said five hundred acres of land was vested in fee in the complainant, Sibly. This decree was made on October 29, 1825. Also, a deed made by Sibly on March 23, 1832, whereby he conveyed to Corey the said undivided one-fourth of said five-hundred acres in fee. 'The defendant also gave in evidence a deed made and duly executed, by Corey to the defendant, dated March 16, 1833, conveying to him the whole tract of five hundred acres • in fee simple.

This motion for a new trial depends upon the validity of the administrator’s deed. The plaintiffs insist that it is void as to them:

1. Because they were not parties to the proceedings in which the order to sell was made.

2. Because the petition prayed, and the court ordered, the whole tract to be sold and the administrator sold a part only.

3. Because the deed conveys the equitable title only, and not the-legal estate.

4. Because the deed is made, by the administrator, to E. Corey,. and not to B. F. Hollister, the successful bidder at the sale.

An order of the court of common pleas, to sell the land descended to the heirs, on the petition of the administrator, is the-order of a court having jurisdiction of the subject, and is as conclusive on all interested in the land as a judgment or decree. A-purchaser under such order holds his title as securely as a purchaser at sheriff’s sale under a judgment at law or a decree in chancery. To defeat his title the order can no more be attacked collaterally than a judgment or a decree; and although it may be erroneous or irregular, a title acquired under it by a stranger, before it is reversed or set aside, is as good as though it was not erroneous or irregular. 3 Ohio, 257, 325, 561; 4 Ohio, 130; 2 P. R 163; 2 Bin. 46.

The question, as to the proceedings of the court on the petition, is not whether they are erroneous or irregular and voidable, but whether they are void. The administrator, in ^obtaining an order to sell land, acts for the creditor and heirs; the money raised does not go to his but to their use. He is generally a friend of the deceased, and a friend and confidant of the heirs. The legislature, therefore, until 1824 (vide 22 Ohio L. 130, see. 9), did not ■require the heirs to be made parties to these petitions. Before that time they were all ex parte. The act of 1824 did not direct in what manner they should be made parties, what process should issue, or how it should be served ; the court of common pleas were under the necessity of using such process, and taking such measures as they thought legal and proper in making the heirs parties. Some have pursued one course and some another, especially as to minors.

The object of the law was, that the heirs should have notice of .the application of the administrator for an order to sell their land, and process served on a minor heir, who may be not a year old, could have no other effect than to give notice to its friends. In this case the proceedings were in the year 1825, before any settled practice under the act of 1824. At the time of filing the petition, the administrator did not probably know that the lessors were ■heirs. He states that Samuel and John were the only heirs. The court, before process issued to them, appointed Powell, their guardian, to defend; then process issued to their regular guard- : ian, Parker, not to the infants or guardian ad litem. On the ro■turn of the service on the regular guardian, Parker, the heirs ■were considered in court, and as to them the order was made. .At the same time, April term, 1826, Barlow, the guardian of the lessors, appeared in court and acknowledged notice of the pendency • of the administrator’s petition. The court then had the return of ;.the process served on the guardian of Samuel and John, and the appearance of tbe guardian of the lessors and acknowledgment by him, in open court, of notice of the pendency of the petition on which the order was made. The appointment of Powell as guardian is of little consequence; he entered no appearance, and may not have known of the appointment. 3 Ohio, 364. The court, when they made the order, must have determined that, by serving process on the guardian of Samuel and John, and by the appearance of the guardian of the lessors, the four heirs were parties to the petition, within the meaning of the act of 1824. And this was a matter of which they had jurisdiction. Indeed, they were compelled to ^determine this question. They could not get along without. The notice was substantially as good as it will be to minors under the act of 1831 (29 Ohio L. 237), which requires notice of the filing of the petition to be given in the same manner that notice is given to defendant in chancery of the filing of a bill. By this act, process must be served on the infants, if they are within the state; this will indirectly give notice to their friends, on which it will be the duty of their guardians, if there be any, to see to their defense. Prior to the act of 1824, proceedings of this kind were summary — they were ex parte. Since, we have reason to think, they have continued nearly as much, and it may be too much so; they have conformed more to proceedings on petitions for partition than suits in chancery. Rules have not always been given for answer where a guardian ad litem has been appointed — an answer has not in all cases been put in by him unless he made objections to the order; frequently, in consequence of this, no entry of appearance has been required by the common pleas. The act of 1831 only regulates the mode of summoning and notifying the defendants; as to everything else in making infants parties to these petitions, the practice will be found to differ in the various courts of common pleas, and it is probable that it will not do to test them, even on certiorari or error, by the rules governing courts of chancery. Our chancery proceedings will not in everything bear this test. In England, after process is served on an infant defendant, he must in person be brought into court, that the court may appoint him a guardian to defend, or, if he can not be brought in, commissioners appointed by the court must attend him to make this appointment. Hind’s Oban. Prac. 98, 240. This is never done here; in consequence of which we hold that it must appear that the guardian appointed to defend had notice of his appointment, and must at least do something to signify his acceptance of the appointment. 3 Ohio, 364.

In the case of the Lessee of Heister v. Fortner, 2 Bin. 40, which was an ejectment to recover a tract of land, the lessor claimed as a purchaser at sheriffs sale to satisfy a judgment on a scire facias. The judgment was unjust, and was also irregular; it was taken without a service of the scire facias, and on the return of but one nihil, when there should have been two. The court held the sale of the sheriff good. ^Justice Yates says, “ That the judgment was wholly irregular, and that the court from which the process issued would, without hesitation, have set aside the sale on both the grounds alleged, if application had been made to them previous to the acknowledgment of the sheriff’s deed. The judgment, also, would have been reversed on error.” This judgment-was unjust, and the defendant had no notice; that was not done from which the law infers a notice. Tet the court had jurisdiction; error on the merits, in the process, or service, or in the return could not be collaterally inquired of to defeat the title of the stranger who purchased the land. He looked back only to the judgment, the execution, and, where the sale is after the return day of the execution, to the levy. 4 Wheat. 508; 4 Pet. Cond. 521. In Dabney v. Manning, 3 Ohio, 326, this court say that, on an order to sell land in a partition case by an administrator, when it should have been by the sheriff, and the administrator sells, the purchaser gets a title as good as though the sheriff had been ordered to sell or had sold; the court had jurisdiction; their error does not affect the title.

As to the second objection, that the prayer of the petition and the order of the court was to sell the whole tract, and the administrator sold a part only. In April, 1825, when the administrator filed the petition, the heirs appeared to own the whole tract; at the next October term one-fourth of it was decreed to Selby; then the court order that the heirs be cited to show cause why the whole or so much of the tract of land as belonged to the intestate-should not be sold. At April term, 1826, the court receive the appraisement of an undivided three-fourths of the tract only, and reciting it, order all to be sold, showing plainly that all meant all appraised, all belonging to the heirs after deducting Selby’s part. If the prayer of a petition is to sell a whole tract, and on the appraisement the court find that a part will pay the debts, then it is their duty to order a sale of a part only. So, if it is found by the court, that the intestate owned a part only of the tract, the court may and ought to have part only appraised and sold, as they have done here.

It is further objected, that the administrator’s deed to Corey conveys the equitable estate only, if any. By the deed, the administrator, in terms, “ grants, bargains and sells” to Corey, “his heirs and assigns forever, all the equitable interest” of the *said intestate, at the time of his death, of and to the said undivided three-fourths, and “all the right and title and interest which the said Samuel Ewing had at his death to the undivided three-fourths,” etc. These two clauses are undoubtedly sufficient to convey the legal estate, as it was undoubtedly in the intestate at his death ; the United States by patent granted it to him.'

The remaining objection is, that the deed was made by the administrator-to Corey, when at the public sale the land was struck ■off to B. F. Hollister. It appears from the recitals in the deed of the administrator, that, at the sale, Hollister bid for the land two hundred and fifty dollars, two-thirds of the valuation, and that it was struck off to him; that, with his consent, Corey paid the administrator the two hundred and fifty dollars, and received the conveyance from the administrator to himself. On the payment ■of the money by the successful bidder, the law requires the conveyance to be made to him; this is for his benefit — if he directs it to be made to another, are the heirs injured? Should they, after the money has been paid to the administrator to pay their father’s debts, because of this, retake the land ? If the successful bidder ■should pay the purchase money and die before conveyance, his heirs could surely obtain of the administrator a conveyance; the sale could not be avoided on that account;'the act of Grod works no injustice. If the administrator might convey to the heir, why not to an assignee ? I can see no objection to it. It is not unusual, at public sales, for the name of another to be substituted for that of the actual bidder, with consent of all concerned. The like might have been done in this ease — it amounts to the same thing, and I like this better, because it shows the real truth of the transaction. In Kentucky, it is held that a sheriff may convey to the assignee of the purchaser at his sale. 1 Dana, 212.

Upon the whole, the motion for a new trial is overruled.


author: *Judge Collett

text:
    David S. Davis v. State of Ohio.
    Indictment for permitting gambling must recite the parties, or allege that they are unknown. It must also specify whether the game was for money or other valuable thing.
    This was a writ of error, reserved.for decision in the court in bank in Montgomery county. Davis was indicted for permitting gambling in his house. The indictment set forth in *these •terms, “ that David S. Davis, late of, etc., in the county of Montgomery aforesaid, on March 6, 1834, and on divers other days and times, with force and arms, at, etc., unlawfully did suffer and permit certain evil disposed persons to play for gain, with cards, in a certain house, then and there in the possession of the said D. S. Davis, contrary to the statute,” etc. Davis pleaded guilty, and moved the court in arrest of judgment. The motion was overruled, and judgment entered that he pay a fine of fifty dollars, .and to reverse which this writ of error was sued out.
    The error assigned, was the too great generality of the indictment.
    R. A. Thruston, for Davis:
    It is a general rule, that all the circumstances which make up -and constitute an act of crime should be stated. 15 Arch.; 2 East, 30 ; 5 East, 244; 1 Chitty, 230.
    The indictment must set forth with certainty the particular •crime charged. 10 Peters. Ab. 470.
    The manner of the whole fact ought to be set forth. An indictment accusing generally is bad. 2 Hawkins Pl, ch. 25, 57, 59; 1 Salk. 196.
    P. P. Lowe, prosecuting attorney, for the state:
    It is not necessary, in an indictment for this offense, to give the names of the persons who are permitted to play. It is not necessary in England, and the courts of Massachusetts have so ruled it. Were the principle contended for adopted, it would always be in the power of a defendant to evade conviction, as he might, with legal propriety, call on fifty witnesses different from those named in the indictment, who would or might swear that the defendant permitted them to play about the same time as alleged in the indictment. There is the same necessity to adopt this form of indictment in this country, as against one keeping a common gaming house, either here or in England. 3 Pick. 281; 4 Pick. 251 5 Pick. 41, 42.
    “ Cards,” being denominated a game in the statute, it is not necessary to aver it to be a “ gaming device.” 3 Pick. 281.
   *Judge Collett

delivered the opinion of the court:

This indictment is founded on section 9 of the act for the prevention of gaming, which provides, “ that if any person or persons shall suffer any game or games whatsoever to be played for gain, upon, or by means of any gaming device, or machine of any denomination or name, in his, her, or their house, booth, or arbor,, or erection of which he or they have the care or possession, the-persons so offending shall,” etc.

An indictment charging an individual with an offense against-law must so describe the offense as to show that the law has been violated. The law operates upon a given state of facts. These facts must be set out in the indictment distinctly and clearly; first, to enable the defendant to make defense, if he be unjustly accused; second, if he be convicted, to enable him to plead and prove that conviction, in bar of a second prosecution, upon account of the same transaction.

We think this indictment should have either set out the names of the parties that it charges the accused permitted to play, or, if the names were unknown, it should have been so alleged. We think it should also have specified whether the playing was for money, or other valuable things. For these deficiencies, the judgment must be reversed.


text:
    Joshua Porter v. Robb and others.
    If the owner of an entry in the Virginia military lands, makes a mistake in-surveying it, and obtains a patent accordingly, equity can not aid him to-place it on the land the entry properly covered.

      Where a boundary bas been much litigated, and different verdicts rendered, equity, under proper circumstances, will direct a retrial in favor of the-party in possession.
    This is a suit in chancery, to enjoin a judgment in ejectment,, recovered by the now defendants against the plaintiff, in the Supreme Court for Clermont county.
    On August 2,1787, Captain John Dandridge made the following entry:

      “August 2, 1787.
    “No. 437. Captain John Dandridge enters one thousand acres of land, part of the military warrant, No. 77, on the Ohio, beginning two hundred poles on a right line, below the mouth of a creek, emptying into the Ohio, by computation ten miles above the mouth of the Little Miami, and nearly opposite a creek of equal size, running in on the opposite side, running thence up the meanders of the Ohio four hundred poles on a direct line ; thence-out at right angles, to the general course of the river, for quantity, including the mouth of the creek. The above recited creek, on *which this entry lies, is remarkable for an Indian crossing place, and a large deer lick thereon.”
    On August 8,1787, Major David Stephenson made the following-entry :
    “ August 8, 1787/
    “No. 722. Major David Stephenson enter one thousand two-hundred acres of land, part of a military warrant, No. 347, adjoining John Dandridge’s entry No. 437, on Cross creek, beginning where his back line crosses the creek, thence out on each side with Dandridge’s line two hundred and fifty poles; thence upon both sides for quantity.”
    On August 10, 1787, Richard J. Waters made the following-entry :

      “August 10, 1787.
    “No. 921. Richard J. Waters, assignee, enters one thousand acres of land, part of a military warrant, No. 2,556, adjoining David Stephenson’s ‘ entry No. 722 on Cross creek, a branch of the Ohio, beginning where the said Stephenson’s upper line crosses-the creek, running with his line out from the creek, each side, till the line is four hundred poles long, thence up the creek on: both sides, keeping it in the middle of the survey for quantity.’ ”

      On August 14,1787, John Crawford, heir, made the following ■entry:

      “August 14, 1787.
    “No. 1,160. John Crawford, heir, enters one thousand acres of land, on part of a military warrant, No. 19, on Cross creek, beginning at Richard J. Waters’ north corner of his entry No. 921, running with his line eastwardly four hundred poles, thence at right ■angles northwardly for quantity.”
    John Obannon surveyed these entries. That of Dandridge is ■ dated January 6,1788 ; that of Stephenson the day after ; that of Waters, February 5, 1788, and that of Crawford is dated May 1, 1796. The survey of Stephenson palls for that of Dandridge ; Waters’ for Stephenson’s, and Crawford’s for Waters’. Before the survey of Crawford’s entry, four hundred and seventy-five acres were withdrawn, without stating from whatpart, and the remainder, ■five hundred and twenty-five acres only, was surveyed. A patent issued on this survey of Crawford to his assignee, Noble Grimes, dated April 12, 1800, from whom, through several intermediate ■conveyances, the complainant derives his title to one hundred and eighty-two and one-half acres on the south side of this claim '208] *of Crawford. He has been for many years in possession, and has made valuable improvements.
    The survey of Waters was, in 1823, patented to Robert D. Dawson, from whom the defendants derive their title. Waters’ ■survey, as claimed by the defendants, covers nearly the whole of the land of the complainant. If his survey was so made as to have an equal number of acres on each side of the line, designating the general course of the creek within the survey, it would mot interfere with Crawford’s survey.
    Fox and Goodenow, for complainant.
    Fishback and Marshall, for defendants.
   Judge Collett

delivered the opinion of the court:

The complainant alleges that the premises he claims are within 'Crawford’s entry, and not within the entry of Waters, and that if they are included within Waters’survey, and not within Crawford’s, it is owing to mistake or fraud on the part of Waters, and •■that this mistake or fraud on the part of Waters, caused Crawford by mistake not to include them in his survey, he being ignorant of the error in Waters’ survey. He also alleges that Waters’ survey, so far as it includes lands without his entry, is void, and on these grounds he claims relief.

A warrant which can be located in the Yirginia military district authorizes the owner thereof to locate the quantity of land, it calls for, on any unlocated land in the district. In doing this, he is required to make his location or entry “ so specially and precisely as that others may be enabled with certainty to locate other warrants on the adjacent residuum.” Swan’s Land Laws, 127. When an entry is so made, it withdraws the land described from the mass of vacant land, and appropriates it to the satisfaction of the warrant, or so much of the warrant as is called for by the entry, but it withdraws no more nor any other land.

The entry is the only notice of the location until it is surveyed. After an entry is made, others examine it, ascertain what land is called for, and locate in the neighborhood of and adjoining it. That the previous entry should afterward be surveyed on other lands, so as to interfere with these subsequent locators, would be the grossest injustice. Crawford’s *entry was made before that of Waters’ was surveyed, and calls for Waters’ entry, making the line which bounds Waters’ entry on the north the base line and south boundary of Crawford’s entry; Waters’ entry requires the creek to be kept in the middle of the survey, that is, that equal quantities of his land should lie on each side of the-creek, or on each side of the line to be drawn on the general course of the creek as it passes through his survey. 1 Marsh. 130; 5 Peters, 488. If the survey was so made, it does not interfere with Crawford’s entry-or survey. If it was surveyed as-the defendants contend, it includes nearly all the complainants’ land, and more than two-thirds of the land included in Waters’ survey is on the north side of the creek, and at least one-third of it north of his entry, and on land included in Crawford’s entry. Crawford’s entry was made in August, 1787, only a few days after that of Waters. Waters surveyed his entry in 1788.-Crawford surveyed in 1796. Had Crawford disregarded Waters’ survey, and run the line bounding Waters on the north, where it-should have been run, according to Waters’ entry, and made that line the southern boundary and base line of his survey, this-'would have been, as it regarded Waters, according to the entriea■of both — then the survey of Waters could not have affected Crawford’s title. But Crawford did not do so; he regarded the survey ■of Waters as being according to his entry, and made his own ¡survey to adjoin Waters’ survey. In 1S00 Crawford’s assignee obtained a patent for the land as surveyed by Crawford.

The survey is the party’s construction of this entry; it is supposed to be directed by him. In fact, in making these locations the surveyor was almost always the hired agent of the owner of the warrant, employed to make both the entry and the survey. It was held, in Kentucky, that a survey recorded satisfied the warrant, or that the warrant was merged in the survey, and that no alteration could afterward be made. The warrant, the authority to the party, was satisfied, and could not be again set up. Hard. 567; 1 Marsh. 130. The Supreme Court of the United States have decided that, after a survey in this district has been recorded, the •entry and survey may be withdrawn, 7 Wheat. 23; and that after they are withdrawn the warrant may be relocated. 4 Pet. 342. After a patent issues the power of the party over his *warrant or location is gone. The entry and location have been made under his direction; he has returned to the government his survey and warrant, and asked for and received a grant vesting in him the fee of the land granted, whether it was within his entry or not; whether his. entry was good or not. The land patented ■can not afterward be re-entered, no matter how irregularly it may have been entered or surveyed. It is no longer vacant or unappropriated, but is vested in the patentee. 7 Wheat. 212; 5 Pet. ■Cond. 272. All the equity is merged in the grant. 2 Pet. Cond. 528; 7 Cranch, 354. When a patent issues the government retains the warrant, and in case the patentee or his alienee is evicted, the patentee can, on application, obtain his warrant for relocation. Act of Congress, passed May 13, 1800; Swan’s Land Laws, 133. If a person could enter land in one place, survey in another, by patent obtained from the government the land surveyed, and then set up his claim to the land described by his entry, he would defraud the government. If the land that he had entered, but had excluded from his survey and patent, had been located by another, he would defraud him. There is no evidence ■of fraud in this case. The mistake, if there is one, we can not relieve against. To relieve would shake more than half the titles •between the Scioto and Little Miami rivers. Almost every survey 'includes more land than the entry calls for, and so far is a departure from the entry by covering ground not included within it. Most of the entries were made as in this case, calling one for another; Stephenson’s entry calls for the upper line of Dandridge; Waters’ calls for the upper line of Stephenson; Crawford’s for that which is the north line of Waters’. These entries were all made before any of them were surveyed. Obannon, who probably made all the entries, surveyed them all. The return of the ■county surveyor shows that Dandridge’s upper line is twenty poles too far up the creek. It is four hundred and twenty poles from the base, whereas it should have been but four hundred. This twenty poles is on Stephenson’s entry. Obannon, in surveying for Stephenson, took this line, as run by him for Dandridge, as the lower line of Stephenson. This threw Stephenson twenty poles on Waters’ entry. As Stephenson has a larger entry than Dandridge, and probably a proportionate surplus, it is then probable that his survey encroached at least forty poles upon Waters’ entry. This caused Crawford, by having to begin at a corner of ^Waters’, to be thrown a considerable distance farther from the Ohio than he would have been had there been no mistake made by Obannon in making this chain of surveys. Before he made his survey Crawford had it in his power to have corrected all these mistakes, so far as they affected his entry. He might have brought himself nearer the Ohio, as well as nearer Cross creek. If he can now go out of his patent south, on to Waters’ survey, because his entry was there, he can also go east toward the Ohio on to Stephenson’s survey for the same reason. And thiis a very great proportion of the landholders within the Virginia military district might be disturbed and injured if mistakes such as Obannon here committed could be corrected.

The complainant contends that in fact he has the legal title to the premises, and having the possession, that the defendants should, on this ground, be decreed to release to him, and the injunction be made perpetual. The patent of Grimes on Crawfordjs survey was granted in 1800; that of Dawson on Waters’ survey, in 1823; so that if the premises in controversy are within Crawford’s survey, the complainant has the legal title.

The complainant long ago settled in the woods upon the premises, and has ever since improved them, claiming under Grimes’ patent. Whether the line by which the complainant claims, or the line by which the defendants claim, is the original line between, the surveys of Crawford and Waters, has been a subject of much litigation between persons owning parts of Crawford’s and parts; of Waters’ surveys, and of the adjoining dependent surveys, and the verdicts have been some in favor of one line and some in favor of the other.

Section 14 of the act regulating the chancery practice, 29 Rev. Stat. 33, authorizes the filing of a bill by him who is in possession ofj and has the legal title to, a tract of land, against him who claims-title to it, to quiet the title of the possessor, if he should show ta the satisfaction of the court that the legal title is in him. For tho-purpose of ascertaining, as satisfactorily as this case will admit, where the true line between these surveys is, the court will order a retrial of the ejectment in the Supreme Court, as an original issua ordered by this court.