text:
    *Elisha Gibbs v. Reuben Champion.
    Failure to pay a first installment of purchase money, and a tender of the whole when the second became due, specific performance decreed.
    When vendor disables himself from making conveyance, damages may he decreed.
    This cause was adjourned here for decision, from the Supreme Court, in the county of Cuyahoga. It was a bill in equity, praying the specific performance of a contract for the sale and conveyance of a lot of ground in the city of Cleveland. The fact* of the case are as follow:

      On May 1, 1825, the complainant agreed to purchase of the respondent the lot in controversy, for the sum of two hundred and fifty dollars — one-half to be paid on January 26, 1826, the other half to be paid on July 26, 1826; for the payment of which sums, he gave to the defendant his two separate negotiable notes; and written contracts were entered into between the parties, by which it was stipulated that the complainant should be entitled to, and come into immediate possession, at which taking possession, he-should pay, or secure the payment of twenty-five dollars, part of the purchase money, and the defendant agreed to convey the lot, upon the payment of the purchase money as it became due, and the complainant covenanted to pay the purchase money as it became due, and also to pay the taxes.
    At the time the contract was made, Champion had not the legal title to the lot; but had a contract with L. Case for the purchase of it, which facts were known to the complainant. Possession was not taken, nor the payment of twenty-five dollars made or secured, in the month of May, 1825, and in the month of July of that year, the respondent addressed a letter to the complainant requesting him to take possession, and declaring that if he failed to do so, he would consider the contract as abandoned. The possession was not taken nor the money secured, neither were any steps taken toward the completion of the contract, by the complainant, until July 26, 1826, when the last payment was due; at which time the whole amount of purchase money and interest was tendered, and a deed demanded. In the meantime, the respondent had sold the lot to another person, whose situation was that of an innocent purchaser without notice. The bill prayed a specific performance, or other proper relief.
    Willey for the complainants, insisted :
    That he had a right to demand a specific performance. That the offer to perform was tantamount to actual performance, and that a failure to perform at the day, was not of itself sufficient to justify the party, or the court, in treating the contract as. abandoned. He also maintained that injury from a delay in performing a contract, was no reason against decreeing a specific performance, where compensation could be made to the other party in money. In support of these doctrines, he cited 1 Fonb. 387, 388; 2 Johns. Cases in Error, 614; 6 Wheat. 528; 1 Wheat. 195, 196; 5 Cranch, 262; 9 Johns. 450, 456; 3 Johns. Ch. 316; Newl. Con. 89; Pow. Con. 268.
    If it be out of the power of the respondent to perform the contract specifically, the court may decree him to make compensation in money, in the nature of damages.
    L. Case, for the defendant, contended:
    That, according to the terms of the contract, the payment of the purchase money, as it became due, was a condition precedent, and the complainant being a defaulter*, in this particular, could not have the relief prayed for.' And he denied the application of the cases cited by complainant’s counsel, to the case before the court. He cited, on this point, 1 Mad. 328, 829; 2 Ohio, 21.
    He controverted the propriety of decreeing damages, in any case, where specific performance could not be decreed, and maintained that this was not a proper case for such a decree, if it could be made in a proper case. He cited 4 Johns. 560; 5 Johns. 195. This was a case of mere speculation, where the complainant wholly failed to perform, where he paid nothing, did nothing, neglected his contract, until an advance in the price of property set him at work. He should, therefore, be left to his remedy at law, not aided in equity.
   By the Court :

This is a very clear case for relief. The conduct of the complainant was not such as to give the slightest reason to suppose he meant to abandon the contract. The covenant to take possession, in May, was intended for the complainant’s benefit; and his failure to do it worked no prejudice to the respondent. The non-payment of the first installment of the purchaser’s money, at the day, seems to be the sole Aground for refusing a performance. The whole purchase money was tendered, when the second and last installment became due, with the interest due on the first. We know no case, where a neglect to pay the first payment, so promptly remedied by a proffer to pay the first and second together, with interest, has been held such a neglect and abandonment of the contract, as to excuse the performance on the part of the vendor. We can not regard the contract to pay a condition precedent, authorizing the rescission of the contract upon a failure. And if we should so consider it, there is no proof that tho respondent proceeded upon this ground. He held the contract and the notes, though payment of the first installment was not made. He never offered to return them, and certainly took •no steps, which could have operated to exonerate the complainant from his liability. The agreement remained executory, and in full force when the tender was made, and the respondent then ought to have executed it. If the title was in him, we should be bound to decree a specific performance. As it is not, but has passed into hands where it can not be reached, we can only decree compensation. This compensation, we are of opinion, is the ■difference between the purchase money, and the value of the unimproved lot, at the time the party entitled himself to a conveyance, •by tendering the purchase money. For the purpose of ascertaining this difference, the cause is remanded back to the Supremo ■Court of Cuyahoga county, and referred to a master to fake an •account upon the principle here suggested.


source: Caselaw Access Project

author: +By the Court :

license: Public Domain

text:
    Lessee of James Taylor v. Abraham Boyd.
    . A decree in chancery, for the conveyance of land, if a deed be not executed within the time limited, operates as a conveyance, subject, as between the parties, to a revesting of the title, by a reversal of that decree.
    .A party having title to land under a decree in chancery, conveys in good faith, before citation on error is served, a reversal of the decree does not divest the purchaser’s title.
    This case was adjourned here from the Supreme Court in Ross -county, and came before the court upon a case agreed.
    Taylor, the lessor of the plaintiff, being seized in fee of the premises in dispute, John Boyd, the father of the defendant, prose-cuted a bill in chancery against him to obtain a conveyance of them, upon which a decree was made, that Taylor convey to Boyd, within a given day, or that the decree ^operate as a conveyance. Taylor made no conveyance, and after the time limited for making it by the decree had expired, John Boyd conveyed the premises to the defendant, having in the meantime taken possession under the decree. Before the conveyance from John Boyd to A. Boyd was executed, Taylor had sued a writ of error, to reverse the decree obtained by Boyd against him. It was issued and the - bond given, but it was not served until after the conveyance was executed, and Abraham Boyd had no actual notice that such a writ was sued out. Upon hearing of the writ of error, the decree directing a conveyance was reversed. The question presented foi decision was, whether, under the circumstances, the title of Abraham Boyd was affected by the reversal of the decree upon which. it was founded.
    Sill, for defendant:
    On the facts agreed in this case, the defendant contends that by the decree the fee passed to the defendant’s grantor, and has never been divested; and in this we contend for nothing more than the -■ expressed intention of the statute, that “ where a decree shall be •made, etc., and the party against whom the decree shall pass, shall-not comply therewith by the time appointed, then such decree shall be taken in all courts of law and equity to have the same operation and effect, and be as available as if the conveyance had-been executed conformable to such decree.” Vol. 22, p. 81. It-would seem from a first impression, that a doubt could not be raised on the language of the act, upon the point whether the title-taken under such decree, after the expiration of the limited time, would, in all respects, stand on the same footing as if a deed had been actually executed under such decree. And yet such doubts have been started, and may possibly be raised in the present case. The decision of the Supreme Court of the United States must, however, remove all doubts. Steel’s lessee v. Spencer, Peters. It is there decided “ that the title under such decree, on the expiration of the time, was in all respects (by our statute) the same as though a deed had been executed. Placing it on the footing, therefore, that a deed had been actually made by Taylor to Boyd, in conformity to the decree, vesting in Boyd *the fee, and the only resulting question is, does a reversal of that decree, vacate the deed, and revest the title in Taylor again ?
    In discussing this point, it will be remembered that when the re- • versal took place there was no order made by the court that the party should be restored, in all things, to that which he had lost.by the decree; or, if such an order had been made, whether it could have affected the present question need not now be inquired. A simple reversal was all that was had in the case, and the ques* tion recurs, can such a reversal alone divest the title from Boyd and vest it again in Taylor. The opposite counsel must admit, that before the statute a mere decree of a court of chancery would not pass a title; that a decree could only be enforced by imprisonment or amercement for contempt; but that if the party remained obstinate the decree would continue wholly inoperative as •a conveyance. Such a conveyance, therefore, with us, owes all its ■efficacy to the statute.- We contend, then, if without an express authority of the statute the decree could not have had the effect ■of passing title, so neither can’a refusal of that decree without an ■express authority of the same statute repass or divest the title. A conveyance created by a statute can not be executed further than the express words of the statute. Most assuredly, it requires a power as high and efficacious to reconvey to Taylor as to convey to Boyd. The statute has, in one case, said that a certain act of a court, under certain limitations, shall pass the title, and has not said that any other act, such as a decree had on a bill of review, ■or a reversal of the first decree by court of error, shall be a reconveyance. Taylor is not without a remedy, if he ever had the equity (it is presumed), after a reversal, that the legal estate which Boyd took by the decree would be held by Boyd, as a trustee, for whoever was seized of the equity; and if Taylor, on a bill filed, is found to have that equity, then a reconveyance would be decreed on the proper evidence adduced. At all events, if it had been intended by the act that a reversal of the decree alone should operate to revets, it would have so been expressed. It is hardly possible that such an important point would, under all the consequences that might result, be left to mere implication. Decrees, as well as judgments, are sometimes reversed in part and confirmed in part; it would produce ^endless confusion were a reversal, at any time within five years, to be considered as a reconveyance to the party from whom it had passed under the decree, affecting, as it would, all subsequent bona fide purchasers who had purchased under the faith of the decree and perhaps made valuable improvements.
    j Again: Why may not the condition of the party giving the ■title under the decree be likened to that of a purchaser under a judgment? The title, under the deqree, is a statutory conveyance, ¡and is, in effect, precisely the same as if the chancellor had decreed that Taylor should pay so much money or convey the land; and, if he did neither, that the land should be sold, and on such, sale Boyd had become the purchaser. Now, why should the reversal of the decree affect the title any more than the reversal of the judgment—that is, in a court of law; for I do not question, but in a court of equity, that the party or purchaser receiving title in either case would stand affected by another’s right to the equity, and on a ease properly shown might be decreed to convey the legal estate.
    Again: Still proceeding on the ground that Taylor had actually made a deed, and even supposing that the court reversing the decree was empowered and had exercised the power, and had said that the supposed deed, made under the decree, should be canceled, that would not even have the effect to revest the title in Taylor. The mere destruction of a deed does not divest title; the deeds in use in this country are those of bargain and sale, and it has often been decided that the mere canceling or destroying of such a deed would not be a reconveyance of the title to the bargainor. 2 H. Black. 263. See also 3 Term, 156.
    Grimke, for plaintiff:
    No principle, I believe, is better established than that the pend-ency of a suit is notice to all the world, and that conveyances obtained during that period are absolutely void and incapable of transferring any interest. “I hold it,” says Lord Camden, “as a general rule, that an alienation pending a suit is void.” Ambler, 676. He who purchases during the pendency of a suit is bound, says Sir William Grant, by *the decree that may be made against the person from whom he derives his title.
    The litigant parties are exempted from the necessity of taking .any notice of a title so acquired. As to them, it is as if no such title existed. The rule may operate with hardship, but general convenience requires it. Bishop of Winchester v. Gaine, 11 Ves. 194. “ In the case of Martin v. Stites (says Ch. Kent, cited in 11 Ves. 200), the bill was filed in 1640, and was abated by death in 1648, and a bill of revivor was filed in 1662, and the purchase was made in 1651, yet as the purchase was, by relation of the bill of revivor, made pendente lite, the purchaser was held bound.” Johns. Ch. Cas. 566. In such case, the party whose rights are attempted to be prejudiced by a purchase, pendente lite, may either commence an action of ejectment on his original title, or if his interest be complicated with trust, or accounts, he generally files a bill. “ Where a conveyance was declared absolutely null and void for fraud, a reconveyance was thought by Lord Rosslyn altogether unnecessary. Bates v. Graves, 2 Ves. Jr. 294. Yet it was there said to be the practice to direct a reconveyance.
    Whether a writ of error be a suit, or a proceeding analogous to a suit, would not seem to be very material, as, in either case, it would be governed by the same principles, which are applicable to the lis pendens. In Bacon’s Abridgment, title Error, L, it is said that where the effect of the judgment on the writ of error is the recovery of the title to land, a release of all actions real is a good bar to a suit for the same. If on the writ of error, the party only endeavors to defend himself from the recovery of land, then it is-not a suit, or action real.
    From what period, then, does the writ of error date its inception ? From the allowance, or from the service of the citation ?' It is admitted that suits in chancery and at law are deemed to have commenced from the service, or, if you choose, from the return of the writ. But this is because the writ is literally the commencement of the suit. It is the first step taken by the party who is actor, and, for the same reason, the allowance of the writ is the beginning of the writ of error suit. It has been frequently contended, in Great Britain, that this proceeding was not notice until-the service of the citation, but it has been as often decided that *it is a supersedeas, and arrests all proceedings under the-original judgment, from the time of the allowance. The cases on this subject are numerous and decisive. It is only necessary here to refer to Bos. & Pul. 370; 1 D. & Ea. 279; 2 East, 439; 1 East, 662 ; 1 Mod. 28. It is true there is a1 difference in the effect of the writ in these cases from what it would have in this. But it is in truth a difference only in form. This case is substantially the-same with them. In the English cases an alienation of property, sold pursuant to a judgment at law, is protected, if made any time-after the allowance and before the service of the citation. The alienation there is attempted to be made by the sheriff, the agent of the party. Here it is made directly by the party himself. The reason, perhaps, is even stronger why it should be protected in the latter case. In Overstreet v. Marshall, 3 Call, 164, it is decided that a judge’s order for a writ of supersedeas is the true commencement of the proceeding.

      The defendant’s counsel has opened the other, and perhaps more important part of the case, by inquiring whether the mere reversal of the original decree can have the effect of vesting the property in the party who obtains the reversal. I prefer considering, first, whether the reversal has not the effect of divesting the land out of the defendant to the writ of error. It is true the first may be a necessary consequence of the last. But this view embarrasses the subject less. The mind is not called upon to take such a leap as is supposed to stare us in the face. ¥e are conducted more gradually, and, therefore, more naturally, to the-legitimate conclusion on the subject. The decree in chancery, in Ohio, is different from what it is anywhere else. It contains two alternatives: that the party convey, or that the decree operate as such conveyance; the first is evidently a proceeding in personam, the second is strictly one in rem. The first case can only be enforced by process against the person, the second executes itself, and does not require the interference of the person or of the law, in order to effect a transfer of the legal title. And it is not unimportant to observe that it is in the option of the defendant to such decree, in what way it shall be permitted to operate.
    Having determined that option, neither he, nor those who claim *under him, can complain of any supposed inconvenience which may be the consequence. It is not necessary, in order that the proceedings be in rem, that the possession should be changed. This is never the case, even in admiralty or exchequer suits. The great question always is, whether the title, the right to the property, is not changed, and whether the judgment or decree does not, propria vigore, produce this effect ? The change of possession is accomplished afterward, by a distinct process, by the officer of the court in the admiralty or exchequer, and in real actions, by a new action founded on the judgment of reversal. So that if the original decree had the effect to transfer the title, if it operated directly upon the property, and it was not necessary to resort to sequestration or attachment — in other words, to institute any proceedings against the person — it comes within the true definition of a proceeding in rem, and the reversal of such decree must be governed by the same rules as have been established on the reversal of those proceedings. It must be admitted that the single effect of the decree was, after the defendant made this option, to transfer the title. If it did not do this much, it was totally inoperative and without meaning, and no better than waste paper. There is no escaping, therefore, from the conclusion that it was an effectual and legal conveyance. But the decree of reversal has annulled that original decree, that is to say, it has destroyed that conveyance. The question still recurs, therefore, does this divest the property out of the defendant in the writ of error. And I shall consider the strongest case which can be imagined against me. The cancellation of a deed, it is well established, does not deprive the grantee in it of the title, and it can not, therefore, reinvest the grantor with that title. There are a variety of reasons for this rule of law, all of which show' that this case is entirely distinguishable from the case of cancellation. In the first place, an instrument of writing, under seal, is, in general, necessary to transfer an estate of freehold for life, or in fee. Such estate, therefore, can, in general, be divested only in the same way, that is, by deed in writing. But wherever the title to property is transferred by the operation of law, it is a case which forms an exception, and by operation of law it may be divested. This is the case here; *the'title was not conveyed by deed, but by the operation of the decree. By operation of law, therefore, it may be divested. In the second place, where a deed is canceled, nothing more is done than the destruction of a more •muniment or evidence of title. But the decree of reversal, besides doing this, also fixes and decides, conclusively, the question of title. The cancellation is nothing more than the burning of apiece of paper; the decree destroys the paper (the original decree), by annulling the title. Cancellation is all which is done in the first .instance. In the secend, it is a mere consequence of the destruction of the title. Where you touch the paper only, you must not ■be surprised if the title is unaffected. But where you act upon ■the title exclusively, it would be very extraordinary if that were, .notwithstanding, unaffected.
    There are also groat reasons of public policy why the cancellation of a deed is not permitted to divest an estate. It is because ■the act is secret; but the writ of error and the decree of reversal :are more public than even a reconveyance would be. I think, therefore, we may safely come to the conclusion that the reversal of the original decree has annulled the title of the defendant in the writ of error (and, of course, of all those having notice of that proceeding) ; in other words, for it is one and the same thing, that it .has divested the title out of them. And it is a necessary consequence that it must be revested in the plaintiff in error, or else remain in abeyance, that is, in nubibus, which the law declares it shall not do. And this effect is nothing more than is familiar in a great many other cases. Thus, “if the king grants over the land of a person outlawed for treason or felony, and afterward the outlawry is reversed, the party may enter on the patentee, and needs neither to sue a petition to the king, nor a scire facias against the patentee.” 2 Bac. 505, who cites 2 Haw. P. C., chap. 50, sec. 19, and Andrews, 188. So in an assize for the recovery of land, if the tenant loses by verdict, he shall be restored to the land, if it be reversed on writ of error. 2 Bac. 505. So in another passage, Bacon says, on a writ of error to reverse a fine, the judgment is a vacat of the fine, and a reconveyance is never adjudged, except where a bill in chancery is brought to avoid the fine for fraud. Thus we find that in *every case where an estate is divested by mere judgment, it is revested by the reversal of the same, and it is only where something more than the operation of law is necessary to divest title, that something more is required to revest it. In Thomson v. Mason, 4 Bibb, 186, the only American case which my research has enabled me to find, it is decided that the reversal of a decree renders invalid a deed made in pursuance thereof. As the original decree did not execute itself, like decrees in Ohio, the suit in chancery of Thomson v. Mason was necessary to acquire back the title. The case, however, like too many of the Kentucky cases, is confusedly reported, and is, besides, mixed up with so many other matters, which were involved in the controversy, as to prevent it being considered a very luminous and satisfactory authority on the subject.
    It is inquired, whether the reversal of a decree (similar to that in Boyd and Taylor) for land lying in a foreign country, would divest the estate out of the defendant in error. This is supposed to be a serious difficulty in the way of the establishment of the general principle contended for. But in truth it is not; for I do not contend for the maintenance of the principle as a universal one, neither do my premises authorize me to do so. I have, throughout the argument, contended that the proceeding is strictly in rem. And for this very reason, the reversal of such a decree, for land in France or England, would not divest the property; for this would be to give the decree an extraterritorial operation. Now, it is of the very essence of a proceeding in rem, that the subject matter, the corpus, as the civilians call it, should be within the jurisdiction of the court.at the time that the decree is pronounced. I know that during the ñames of the late European war, that principle has been relaxed in prize cases, even by that distinguished judge, Sir William Scott. But this is acknowledged to be an interpolation into the maritime law. The cases in Cranch and Wheaton are numerous on this point. It is hardly necessary to search for them. Sir William Scott appears to have been brought most reluctantly into a relaxation of a rule which he had • himself repeatedly acknowledged to be well established, and to be founded in the soundest wisdom. It is only necessary to turn over the volumes of Robinson’s Reports to be convinced of both these facts.
    *Itis admitted that “the bill of review in England contains not only a prayer for reversal, but also a prayer to be restored to what the party has lost. So it is part of the judgment of reversal on error, that the party be restored, etc. But these cases rather confirm the view which I have taken. They certainly, at any rate, do not shake my principles. Those casos are founded on this principio: that something more than the original judgment or decree was necessary to.vest the'title to the possession. The restoration of the lost property we acknowledge has not been effected, and for this reason we bring an action of ejectment. With regard to the bill of review, the original decree in England is entirely in personam ; for even if the process of the court is not applied to coerce obedience to it, yet the active agency of the party against whom it is rendered, is necessary to its consummation—he either makes or is compelled to make a deed. The state of title of the parties is thus changed by something coming after the decree and independent of it. Very different is this case, where title is transferred by the silent operation of the decree. So, also, the reversal of an ordinary judgment at law presents a very different case. The recovery is ■of money for instance. This alone, however, can not affect title, either to real or personal property. The execution comes afterward, and by its authority, the land or goods of the debtor is sold. This is a process distinct from, and entirely independent of the judgment, except that it is in pursuance of it. The reversal of such a judgment, therefore, can not, standing alone, affect the property sold under the execution, and it is therefore very properly accompanied by an order that the party be restored to the possession, etc. But restoration to the title and restoration to the possession are very different things. If we had contended that we were restored to the possession, such cases would have been very pertinent.- But in such a case we could hardly have brought an ejectment, which admits that we are not restored.
    It has been supposed that because the decree is to have the same operation as a deed, that therefore it is to be deemed in all respects like a deed. But it is not a deed, nor is it anything like one. There are no premises, no habendum,, no operative words of conveyance. And why ? Because the title is transferred by the sure and irresistible operation *of law, and therefore does not require the intervention of a formal conveyance. On the whole, I think I am authorized in concluding that the writ of error was a lis pendens, that it was a supersedeas, and arrested all proceedings under the original decree from the moment of the allowance; that the reversal divested the property out of the defendant in it, and that it necessarily and eo instanti reinvested it in the then and present plaintiffs.
    [Note. — The case in 1 Dows. P. is even stronger than Murray v. Ballow, and the cases there cited, inasmuch as it is there decided that “ a settlement upon the faith of a final decree in the court below, is still a transaction pendente lite and subject to all the legal and equitable consequences of an appeal.” The purchaser under the original decree, says Lord Eldon, was bound to take notico of any defect in that original decree, even before the appeal was commenced, The appeal was only a continuation of the Us pendens of the former suit, and although it may not have been prosecuted for many years altor, yet if it was within the time limited for an appeal to the House of Lords, the purchaser must abide by tho consequences of a reversal. This case is entitled to great weight, inasmuch as it is the decision of the chancellors of both countries.]
    Leonard, for defendant, in reply:
    The true question now to be determined is, “in whom is the legal estate vested?” By the proceedings had in the court of common pleas, the estate became vested in James Boyd. (Suppose the estato had remained in him, and no conveyance had been executed to Abraham Boyd.) A writ of error is afterward brought, and those proceedings reversed, would that, without further having been done, have restored the legal estate to Taylor?
    In England, the assurance made in performance of a decree is a common law assurance. It contains no reference to the decree. In tracing a title where such assurance is one of the links of the chain, the deed alone is exhibited, and the court before whom the title is litigated, knows not, and if it did, would not regard that it was executed in performance of a decree in chancery. In the case of Penn v. *Lord Baltimore, Ves. Jr., the English chancery settled the boundaries of two provinces in America, and decreed conveyances to be made. They here acted on territory without their jurisdiction. If the chancellor had attempted to act in rem, the attempt would have been unavailing. But he acts in personam. So. if the person is found within our limits, he may be compelled to convey land in England or France, or New York. If the property was conveyed by deed duly executed, and the decree afterward reversed, would the reversal restore the estate in England? Our courts would then not act in personam, but assume a. direct jurisdiction over the territory of England. Could the proceedings in our chancery, the decrees, the writs of error, and the reversals, be advanced in evidence in the trial of an action of ejectment in the English courts ? When our legislature gave the same effect to a decree as to a conveyance, their action was limited to the extent of our own territory, and their object was to facilitate the business of the courts, but not to give the decree a larger or different effect from a common law conveyance. The design was, to prevent the necessity of imprisonment for the enforcing the decrees of the court. It could not have been their intention to give an advantage to the person not complying with the decree of the court over him who did comply, and execute a conveyance accordingly. The decree is “ to have the same operation and effect, and be as available as a conveyance.” The intention must have been, that the party purchasing should look to the decree only; consider it in the light of a conveyance, and was not bound to investigate the correctness of the decision in which it was formed, or whether there were any errors in the proceedings. In fact, the decree is a substitute for a deed.
    If a judgment is rendered, and a term or real estate sold by virtue of an execution issued thereon, the subsequent reversal of the judgment will not vacate or affect tire sale of the term or real estate. 2 Bac. Abr. 505. If a man recovers an advowsen, and presents to a church, and judgment after reversed, presentment remains valid. Id.

      Mr. Grimke’s argument demands a short notice. The cases in Yesey & Ambler, I have not seen, but the language quoted, will be found in 1 Johns. C. C. 580. And it is evident *that Lord Camden and Sir ¥m. G-rant must not be understood too literally. The cases themselves are chancery cases, and no doubt the rights of the equitable owners were there enforced against the pendente lite purchasers, by decrees directing them to convey. The whole amount of the decisions must have been, that the title and interest of those who purchase during the pendency of a suit, shall be bound by the decree. That the legal title ever can be divested from the purchaser by such a decree, and vested in the complainant, was never held, and I may safely venture roundly to assert, that it ever could be, was never imagined by any chancellor of England. What! a decree that A. convey to B., and a deed executed accordingly, divest the legal estate conveyed to C., before the decree rendered 1 The decree could itself have no such effect, and the deed by the respondent could only operate upon the estate vested in himself, and not upon that vested in another.
    If the rule in equity is as stated, what is the use of injunctions against the defendant’s conveying the estate in controversy, pending the litigation.
    Perhaps the counsel, by his reference to the cases in 11 Vesey and Dow’s P., intends to intimate that the writ of error is a continuation of' the proceedings in the common pleas, as a bill of review and an appeal are but parts and continuations of the original cause; and that, therefore, this suit must be considered as pending from the time of its commencement in the court below. The distinction between bills of review, appeals, and writs of error is manifest. A writ of error is a new and distinct action in another tribunal to revise and reverse the final judgment rendered in the inferior. It can not be instituted, except when the cause in the lower court is completely settled and disposed of. By a bill of revivor, a suit abated is revived and restored to its original situation. An appeal transfers the cause to another tribunal. A purchaser pendente lite is bound by the decree finally rendered in the cause, whether rendered on appeal or on revivor. But the doctrine of lis pendens has no application to the original bill filed by the party in the common pleas. It never can have application, except in those cases where the purchase is made from the defendant to the suit in chancery; then the title in the hands *of the purchaser is bound by the decrae. In the présent instance, the deed to defendant was made by the complainant in equity.
    The present question then is, whether the writ of error in chancery is to be considered pending, so as to affect purchasers before the service of the citation. The cases cited show at what time a writ of error is a supersedeas to proceedings on a judgment at law, but have no bearing on the present matter. The doctrine of notice affecting purchasers, whether express or implied, is an equitable doctrine. If a purchaser has expiress notice of an equitable title, he purchases at his peril. If, during the pendency of proceedings in chancery, he takes subject to the decree that may be finally rendered in the cause by the court of the last resort. And the suit is considered as pending only from the service of the subpena. If principles are to be extended to analogous cases, and limited to these precisely similar in all circumstances, courts of chancery will hold that notice of the pendency of writs of error commences with the service of the citation. In writs of error at law, a supersedeas issues. This suspends at once the action of the court to whom it is addressed on the judgment, and withdraws it to a higher tribunal. What analogyis there between the doctrine on writs of error and supersedeas and that of notice pendente lite in chancery ? And why should the time from which the implied notice of the pendency of a suit is to commence, be fixed at the same point the writ of error operates as a supersedeas at law? Suppose, in the present case, the writ of error had been a supersedeas, as to the costs, from the time it is'sued, does it follow that it is from that time notice of its pendency to all the world? On the main question in the cause, the complainant’s counsel appears to have felt himself constrained to surrender the only tenable ground on which his case can be sustained. He admits that if a deed had been executed. the reversal of the decree would not affect the title of the defendant. He insists upon the distinction that the decree operates in rem. How does it operate in rern f By virtue of the statute which says, it shall have the same operation and effect, and bo as available as if a conveyance had been executed ? If the deed is executed and the decree reversed, the title shall not be affected; but if the deed is not ^executed, then the reversal of the decree will affect the title. Hoes the decree, in this instance, have the same operation and effect, and is it as available as a conveyance ? The decree may be considered in two points of view. In the one, we may consider its operation before the passage of the law; in the other, the additional efficacy given to the decree by the statute. In the first point of view, the decree can have no operation in rem. Tn the second point of view, it operates directly in rem; it operates precisely as a common law conveyance. This may be called the statutory operation of the decree.
    How can the reversal of the decree touch this, its statutory operation; this, its operation in rem; this, its operation, which is to have precisely the same effect and be as available as a common law conveyance, more than it can touch the operation of a deed made in pursuance of a decree? How can such reversal divest the title vested by decree, in the hands of a subsequent purchaser, more than if it had been vested by deed duly executed? If it does, no equivocation can escape the conclusion, that the decree is not equally operative and available with a deed; because, the title under the decree is obnoxious to a mode of destruction, from which the title under tho deed is perfectly guarded. The words of the statute are most explicit, and clearly place the title, whether vested by deed or decree, on the same footing. Its design is manifestly to supersede the expense, delay, and trouble of enforcing a deed, by the process of attachment and sequestration, and the construction contended for would render it a snare rather than a benefit. That it was the design of the statute to render the decree as effectual as a deed is conceded, but it is not conceded that it is a deed, or libe a deed.. It wants the premises, tenendum habendum — and I suppose a great waxen seal. Now I would inquire how the decree can be as operative, effectual, and available as a deed duly executed agreeably to the decree, when it is admitted that the estate vested in the complainant by the deed would remain in him, notwithstanding the reversal, and it is insisted that a reversal would revest the estate notwithstanding the decree. This inquiry can not be evaded by saying that the decree is vacated by the reversal, while the deed would be unaffected thereby, because the palpable design of the statuto was to make the title by the decree equally effectual with the title by deed.
   +By the Court :

Upon the state of facts, in this case, James Boyd, by virtue of the decree in chancery, in his favor, and under the provisions of the act regulating proceedings in chancery, obtained an absolute legal title to the lands in dispute. Whilst invested with this title, he entered into the possession. The title conferred by the decree was exactly that which Taylor, the defendant in chancery, had, when the decree was rendered; and this title was as perfect, in James Boyd, under the decree, as it was in Taylo.r before the decree was pronounced. Boyd’s power to alien was as full and ample as any other owner’s could be, subject, however, to bo divested of the estate by the same power that invested it in him.

The foundation of this title was the decree in chancery that conferred it. So long as that decree remained in force, the title could not be impeached by Taylor, or any person claiming under him, by conveyance made, pending the suit in chancery, or alter the decree. But what is the effect of the reversal of that decree.

It is urged that the decree, having the same effect as a deed—being, in fact, an operative conveyance—its effect must be the same, as if a deed had actually been made under the decree. In which case, it is maintained that a reversal of the decree would not divest the title. Without deciding what would be the effect of a deed, in such a case, as between the parties to the suit themselves, we are fully prepared to say that as between the parties, a reversal of the decree, which confers the title, actually divests it, and reinvests it in the person where it rested before the decree was made.

When the decree of reversal is pronounced, the parties concerned are all before the court. The title vested by the decree is declared no longer to exist, and it would seem perfectly competent for the court at once to do justice between them. Why should the successful party he driven to a now bill to revest himself with the title? Sui’ely the great objects of justice are full as well attained by considering the reversal a revestment of title, and, in that respect, placing the parties as they stood before the original decree was pronounced. It *is the most expeditious, the cheapest, and therefore, as we think, the most proper remedy. If. the decree be reversed, and the bill dismissed, upon the opposite doctrine, the complainant thus turned out of court would nevertheless have obtained the whole object of his bill. And the defendant, after a final adjudication, in his favor, would have to prosecute a new bill to obtain relief against the effects of a decree in a suit decided in his favor. This would be a strange anomaly in judicial proceedings, and one which ought not to be introduced, without some strong necessity.

Again, if, on the reversal, the court retain the cause, and on final hearing, a second time find the complainant entitled to a decree for the land, what form of decree is to be made? It can not be that the defendant convey, for the doctrine insisted upon assumes that he has no title in him. It must be a decree confirming a title in the defendant, which he obtained under the reversed decree. Upon what principle of reason, or enactment of legislation, would this kind of decree stand ?

But the most difficult and important point in this case, is as to the effect the reversal is to have upon the rights of third persons, legitimately and innocently acquired. After the time limited in the decree itself had transpired, and the decree became an absolute title, the party thus invested with title and in possession of the land, sold and conveyed it to a third person, who stands before the court as an innocent purchaser for a valuable consideration without notice. Can his rights be divested by a reversal of the decree upon which his title was originally founded? ¥e are of opinion that they can not be so divested.

When James Boyd conveyed to Abraham Boyd, he had a complete title, which it was competent for him to transmit by conveyance in the usual mode. In making this conveyance he divested himself of title, and invested it in Abraham Boyd, the defendant, who reposed himself upon the solemn and final decree of a court of competent jurisdiction, then in full force and of unquestionable validity. By this act of conveyance, made in good faith, James Boyd put an end to his power over the land. He could not resume his interest in it, without the consent of his grantee, and no decree subsequently made, in the suit, or in any new suit growing out of it against James Boyd, could affect an interest which he had not, in the subject. This consequence, upon the premises *here asssumed, seems to be conceded by the counsel for the plaintiff. But he argues that the conveyance can not be treated as one made in good faith, because, as he insists, it was made pendente lite. If this position be correct, the result contended for necessarily follows; for a conveyance of a subject in litigation, made pending the litigation, is universally treated as made in bad faith, and as universally held not to change the rights of any of the parties.

It is argued that the writ of error was sued out, and bond given upon it, before the making of the conveyance, and that consequently the suit was pending. On the other hand, it is acknowledged that no citation had been served on the defendant in error, and there is no pretense that either the grantor or grantee knew that the writ of error was pending. We are of opinion that, until the service of the citation, a writ of error is not to be considered as pending so as to affect strangers as a lis pendens. This, we think, is not only in accordance with good sense and fair dealing, but is also according to the best authority.

It is contended that a writ of error is but the continuance of the original suit, and like a bill of revivor, oran appeal, reinstates the suit, and refers all parties and things involved, to its first commencement. We do not concede that such, in all cases, would be the consequences of a bill of revivor or of an appeal. But in this case, we think the analogy does not hold. In the obvious nature and character of the proceeding, a writ of error is a new and original suit. Original process issues in it, and must be served to bring the adverse party into court. The relative character of the parties is changed ; new pleadings are made up, and a final judgment upon it, though it may operate upon the original cause, is nevertheless a termination of the now suit or process in error. We do not meddle with the nice distinctions, by which a writ of error has been treated as a defensive proceeding, and a continuance of the cause in which the party alleged he had been prejudiced by an erroneous judgment. Though this proposition has been urged, arguendo, in the most respectable tribunal of our country, wo are not apprised of any case where it is made a ground of decision. We adhere to the doctrine that the writ of error is a new suit, and can only affect parties or strangers from the service of the citation. The judgment must, therefore, be.for the defendant.


author: By the Court :

text:
    *Heirs and Administrators of A. St. Clair, deceased, v. J. Smith and D. C. Milliken.
    It is error, on hill of revivor, to decree against infant defendants, until guardian ad litem he appointed, accept the appointment, and either appear or he served with process.
    Where hill and answer set up matters of account as foundation of a trust, it is error to make a decree for complainant, without a full account taken.
    Upon a hill to set up a, trust in land, part sold and part unsold, and for an account of proceeds of sale, if money he found due complainant, land can not he assigned to him in severalty in payment.
    Error, to direct infants to convey with special warranty.
    This cause was adjourned for decision here, from the county of Butler. It was*a bill, of review prosecuted to reverse a decree obtained against the complainants by the defendants in the court of common pleas of Butler county. The bill of review was filed in the common pleas, and certified to the Supreme Court for decision, in consequence of the incompetency of the court of common pleas to try it, two judges of that court being interested in the cause.
    The original bill was filed by James Smith, against Arthur St. Clair, in his lifetime. It charged that, in the year 1801, Smith and St. Clair purchased section 16, containing six hundred and forty acres, and fractions 21, 27, 27, containing eight hundred and eighty-nine acres, all lying contiguous in the township and range east of the meridian, in Butler county, in partnership, at two dollars per acre. The purchase was made of the government upon the usual terms of paying one-fifth in hand, and the remainder in three payments of two, three, and four years. That Smith paid one-half of the first installments, and St. Clair the other half. That improvements were made on the lands, and at the expense of both, especially in erecting a saw mill, and preparing a race and dam for the erection of a grist and saw mill, which, by a freshet in the river, were swept away. It also charged that in 1801, Smith settled on and improved the fraction 21, as for a permanent residence, and made permanent improvements on it. The bill further alleges, that the payments not being made according to the requisitions of the law, it was thought best to forfeit the lands, and reenter them; and that an agreement was made that they should be forfeited and entered by St. Clair in his own name for the use of both. That in pursuance of this agreement, the forfeiture took place, and St. Clair entered the lands in his own name, in the year 1804, made the payments, and obtained the patents. That in 1812, St. Clair sold one-half the entire section for two thousand dollars, and in 1816 sold the other half for one thousand eight hundred dollars, and a part of fraction 21 for two thousand one hundred and sixteen dollars; all of which money he received. The bill further charges that when St. Olair advanced the purchase money to the government, he was indebted to Smith upward of two thousand dollars for advances in *the erection of the mill works swept away in 1801, and that St. Clair at various times after the last entry of the lands, recognized Smith’s joint interest in conversation with him. All the principal allegations of the bill were repeated in special interrogatories, and it concluded with a prayer that St. Clair convey to Smith an interest in the lands unsold and for general relief.
    The answer admitted the original purchase in partnership, and the failure to complete the payment. It denied all the other allegations of the bill; claimed that the complainant was largely indebted to the respondent, and exhibited an account; and put interrogatories to be answered by the complainant. These interrogatories were never answered, and the complainant pleaded the statute of limitations to the items of account submitted by the complainant.
    The bill was filed in 1817. After answer filed, and depositions in part taken, St. Clair died, and Smith filed a bill of revivor, making St. Clair’s heirs, who were all infants, and his administrator, parties. David Wade was appointed guardian ad litem for the heirs. He never appeared or answered. There was nothing in the record to show that he was notified of, or accepted the appointment. Nor did it appear that process of any kind had been served upon him on the hill of revivor. There was no account taken between, nor any partition decreed of the land. But a final decree was made, assigning to the complainant a specified part of the land unsold, estimated in the decree at two thousand three hundred and twenty-nine dollars, and directing the administrators and heirs to pay to him four hundred and eighty-one dollars and seventy-five cents, and after this decree the land assigned to Smith had been purchased by the defendant Milliken. The heirs were also decreed to convey with covenants of general warranty.
    Many errors were assigned as grounds of reversal; but the report will be confined to those specially noticed by the court, as the ground on which they proceeded.
    1. The guardian ad litem, appointed for the minors, was not cited to appear, and did not appear and answer or make defense.
    2. The court proceeded to make a decree, without an account being taken between the parties.
    3. The decree assigns the complainants a specific portion of the lands claimed to be held in common, to be held by the *com- [357 plainant in severalty, without the right being ascertained, and partition made according to law.
    4. The heirs were decreed to convey with covenants of warranty.
    Fox, for complainants in the bill of review:
    The decree is erroneous, because rendered against infants, who were not represented in court. The court appointed David Wade guardian ad litem, but he never appeared, and it does not appear that he ever had notice of his appointment, or that he ever agreed to act in the cause, and it is very questionable, whether he knew that such a cause was ever in litigation. When a guardian ad litem is appointed, “ the infant must either come into court, to have such guardian appointed, or there must be a commission for that purpose.” Cooler’s Eq. 100 ; Ves. Jr. 563.
    “ Where an infant is attached for want of appearance, or an answer, in order to get rid of the attachment, the course is, to order a messenger to bring the infant into court, to have a guardian assigned.” 1 New. Ch. Prac. 73; 9 Ves. Jr. 12.
    In England, if the infant reside more than twenty miles from London, the court issue a commission to two or more persons to appoint a guardian. “If the infant reside within twenty miles of London, the guardian is appointed by the court; for which purpose, the infant, and the person intended to be appointed guardian, personally attend in court. 1 New. Ch. Prac. 105.
    Again. If Mr. Wade had been properly appointed, no valid decree could have been taken against the infants, by his default. There must have been an answer; if the guardian neglected his duty, the plaintiffs might have attached him; they could not take a decree, however, against the infants. 3 Marshall, 177, 143; 3 Bibb, 525.
    “No laches can be imputed to an infant, and no valid decree can be awarded against him merely by default.” 3 Johns. Ch. 368. A decree could not be rendered against an infant, even upon the admissions of a guardian, but the plaintiff must entitle himself to his decree by proof. Id.
    *1 shall not endeavor to show that, at the time of the decree rendered, there was no cause in court. The suit never was, in fact, revived. All that was done subsequent to St. Clair’s death, was the filing of a bill, praying that the court would order the cause to stand revived; no other proceedings were had. If it was necessary for the plaintiff to file his bill, in order to obtain a decree or order of revivor, it was equally necessary for the court to decree or direct that the cause should.stand revived. It was a previous question to be settled by the court, whether the party had a right to revive the cause at all, as against the defendants mentioned in his bill of revivor, before any other proceedings could be had in the original cause, until that point was decided, there was no cause in court.
    In Robinson v. S. G. Hopkins, ex’r, 3 Marshall, 564, the caso had abated by the death of the defendant, “and an order was made, directing a revival of the suit, in the name of his personal representative ;” no process was served on the bill of revivor, nor was any order of publication made against the personal representative. The decree was reversed, because no process had been, served. Judge Owsley, in delivering the opinion of the court, observes, that “according to the ancient and established rules of chancery practico, no decree could be pronounced after the death of either complainant or defendant, without a revival of the suit, in the name of the legal representatives of the deceased; and the only mode by which the suit could be revived, was by exhibiting a bill of revivor, and causing the service of process thereunder.” Again, in the case of Morton v. Long and others, in the same book, page 414, which was an action of trespass quare clausum fregit, the defendant justified under a writ of possession under a docree. It appeared that a suit in chancery had been commenced against Edward Mitchell, who, after having answered, died, and the suit was revived against “ Sarah Mitchell, his heir and representative,” as was stated in the record. The plaintiff replied, that “ Robert Mitchell was, at the death of said Edward, his only surviving brother, and sole heir, and that the said Sarah Mitchell, against whom the suit was revived, was not the heir of the said Edward.” To this replication,the defendant demurred,and obtained judgment below, *which was reversed in the court of appeals. In delivering the opinion, Judge Mills remarks: “ It is well settled that only parties and privies to a decree are bound by it. It is also necessary to revive a suit against a representative, after the death of the original party, in order that such representative may be bound by the decree. If he could be affected without revivor, or by reviving against a stranger, any proceedings to revive would be wholly unnecessary.” The judgment was reversed on this point.
    The elementary books are also very explicit on this subject. 1 Har. Ch. Prac., chap. Bills of Revivor, 153; Blake’s Ch. Prac. 43. If the plaintiff die pending a suit, it is abated, and his executors or administrators must revive the cause, before the same can be further proceeded upon ; and all the orders for the revival of proceedings must be served upon the adverse clerk in court, to the end that he may take notice that the suit is revived.”
    To show that there must be an order of court directing a suit to stand revived, the court are referred to the following authorities: 2 Mad. Ch. 402; 1 New. Ch. Prac. 124; 2 New. Ch. Prac. 252, where the form of an order of revivor is given in full.
    Mitford’s Pleadings, 72: “ The end of the order of revivor being only to put1 the suit and proceedings in the situation in which they stood at the time of the abatement, and to enable the plaintiff to proceed accordingly.” Cooper’s Eq. Plead. 72; 3 P. Wms. 348; 5 Ves. Jr. 305; 11 Id. 306; 13 Id. 160; 5 Johns. Ch. 257.
    I think it clear, therefore, from the reason of the thing, and from the authorities, that, after a sole defendant dies, there is no-case in court upon which the judges can take the least step. The hands of the court are completely tied, until the question as to reviving is properly brought before them; and until an order or decree is made, directing the cause to stand revived, no step whatever can bo taken to affect the merits of the original cause. The decree, therefore, is void, being made in a cause which was not in fact before the court. They had as much right to strike all their former decrees off the docket, as to .make a decree against person» who were not defendants in the cause, and could not be, until the court had ordered that they should *be defendants; until that order they were defendants to a bill of revivor, and to no other bill.
    If the cause had stood revived, and Smith was entitled to any relief, was he entitled to such a decree as the court has made? The contract, if any was made, was that they were to be joint owners as heretofore, and it was for the purpose of enforcing that agreement specifically that the bill was filed. It is very evident, therefore, that all the court ought to have decreed was, that Smith and the heirs of St. Clair were joint owners of the land unsold (for the bill confirmed the sales already made), and if St. Clair had sold more land than would repay the purchase money and interest, an account ought to have been taken, and a decree against the estate for the amount coming to Smith, and in taking such an account it would be proper that Smith should account to St. Clair for the rents which he had received from tenants occupying the land, and also for the yearly value of the land which Smith had occupied since the purchase. But nothing of this kind was allowed. It will be found, by calculation, that St. Clair is only allowed simple interest on the purchase money, from the time of purchase to the rendering the decree, and he is charged with interest on the proceeds of the sales from the time he received them. Smith is not charged one cent for the rent of any of the premises, although he states in his bill that in the year “eighteen hundred and - he settled with his family on fraction 21, where he has ever since resided.” It is certainly unjust to charge St. Clair with interest on the proceeds of sale, without compelling Smith to account for rents received and due. Money received by way of rents ought also to carry interest, as well as money received from sales. Instead, however, of decreeing a specific performance of the contract set out in the bill, a particular parcel of the land, valued at two thousand three hundred and twenty-nine dollars, has been set apart to Smith, and not an undivided interest in the whole. Instead of giving to the heirs of St. Clair the half of the land, and charging them with a debt of two thousand eight hundred and ten dollars and seventy-five cents, the supposed half •of the profits of the speculation, they have given Smith a part of •the land, which they say is worth two thousand three hundred and ¡twenty-nine dollars, and a deeree for four hundred and eighty* one dollars and seventy-five cents, to be paid in money. Why not have decreed Smith a little more land at a valuation which .the court should affix? The court perceive *at once the effect of this decree; it is to give Smith a preference over other creditors of St. Clair’s estate, for a simple contract debt. The decree, therefore, is an improper one. It is a decree of partition which could not have been made consistently with the allegations and charges in the bill. It is inconsistent with the contract sought to be onforced.
    Again : Smith alleges that St. Clair, at the time of the purchase, was indebted to him upward of two thousand dollars for money which Smith had advanced in erecting the saw mill, and he calls upon St. Clair, by special interrogatory, to answer whether he, Smith, did not advance to the hands employed in doing, and for materials necessary for carrying on said work, upward of two thousand dollars, or how much ? And to state how much he, St. Clair, advanced toward said work and materials? Here are special interrogatories; and tho object of Smith was to establish a claim against St. Clair by his answer to those interrogatories. His answer, therefore, being directly responsive to the bill, must be considered true unless contradicted, and it is evidence as well for as against him. Let us see, then, how the case stands between them as to their accounts. And let it be again remembered that it is Smith who seeks an investigation of the accounts. He, St. Clair, in his answer to Smith’s interrogatories, says he does not know how much Smith advanced, but says Smith told him it was about twelve hundred dollars, after St. Clair had shown an account of between one thousand and eleven hundred dollars. He denied that he was indebted to him one cent, and states “ that he advanced to workmen and for materials about four thousand dollars, independent of which Smith was then indebted to him about four thousand dollars more.” And for the purpose of proving his account (which, by tho bye, as his answer was responsive to the bill it was unnecessary for him to prove), he calls upon Smith to answer special interrogatories concerning payments for and money lent to Smith, independent of his claims against him for lawyer’s fees for ten or twenty years, amounting to several thousand dollars. The amount, then, between the parties, so far as we can collect from the pleadings and proofs, shows a clear balance in favor of St. Clair against Smith of at least eight or ten thousand dollars. Why was not this noticed in the decree ? If the answer was evidence in St. Clair’s favor, as it undoubtedly was, why was not an account ordered and the real ^situation of their accounts ascertained ? Smith could not abandon an examination of the accounts after St. Clair’s answer was filed. He had seen proper to make a witness of St. Clair, and it was out of his power to take a part of his testimony and set aside the other part. If, therefore, the court should consider there was a valid agreement to repurchase, and that after such a purchase the parties were to hold the lands “ as they had before held them,” and that at the time of repurchase Smith was indebted to St. Clair on account of moneys advanced, or if the partners were then indebted and St. Clair has since had to pay upward of six thousand dollars on account of Smith and St. Clair, the latter ought, in equity and justice, to have had a credit allowed him in taking the account equal to the amount advanced. The court erred, therefore, in making any decree without referring the accounts of the .parties to a master in chancery, who could have settled the account fairly; and if they could have decreed without such a reference, it is plain that, according to the pleadings and proofs in the cause, the decree ought to have been in favor of the representatives of St. Clair, and the more so, as Smith admits in his bill that he was to account to St. Clair for half the purchase money. He has no right to say that the money received by St. Clair, on account of the land sold, shall be allowed a credit toward the purchase money, and then file a plea of the statute of limitations to prevent an examination of the accounts of moneys expended in improving and making that land valuable so that it could be sold. It is one of the most iniquitous decrees that could have been made. The land was made valuable by expending money in improving it. And Smith wishes and has obtained one-half of the proceodsof sales of those lands, after the money had been expended in the improvements, without contributing to the expenses incurred in making those improvements.
    Again : It is decreed “ that the defendants, heirs, etc., convey to Smith, by and with special warranty within one year.” The-decree is wrong in directing infants to enter into any kind of covenants. Chancellor Kent, in Ferris v. Nelson, 5 Johns. Ch. 262, refused to order infants to enter into any personal covenants. “ He said that they could not be so bound, and that the only order to be made was that they ^should, by their guardian, release and «convey all the title whereof their ancestor died seized.
    T. Corwin and Collet, for defendants in the bill of review:
    1. The ancestor having answered, and the cause being put to issue, it was not necessary for the heirs to answer.
    2. There was no necessity to take an account. The bill and answer agreed as to the sums paid for the land, and the amount received by St. Clair for sales. The calculation was made upon the basis of charging Smith with one-half the purchase money paid by St. Clair, with interest added; deduct the product from one-half the amount received by St. Clair, add the remainder to •the appraised value ot the land set off to Smith, and deduct this from the appraised value of the land by the commissioners, and •the product is the sum specified in the decree. The other accounts between the parties have no connection with the land contract.
    3. The land set off by valuation was in the nature of a partition. When a tenant in common, in equity, appropriates by salé, to himself exclusively, a large portion of the common property, he can not object that the court should assign to the other party his full share from what remains unappropriated.
    Besides, St. Clair being trustee for Smith, a lien attached to the land unappropriated, in favor of Smith, for the balance of money ■due or proceeds of sales. In enforcing payment, a court of equity might well set up the lien and direct a sale of the lands, or, as in the case of foreclosing a mortgage, decree it to the complainant at a fixed price.
    4. Admitting it were error to decree the heirs to convey with warranty, still, as they have not conveyed, the error has worked them no prejudice, and furnishes no ground for reversing the decree. St. Clair is treated as a trustee, and his heirs are consequently only required to perfect and execute that trust. In that ■case they may be required to convey with special warranty.
   By the Court :

The object of filing a bill of revivor is to bring the parties to be -affected by the decree before the court. If these parties *be of full age it is indispensable that they be served with process to appear or voluntarily enter their appearance. Without one or the other no proceedings can be regularly had against them. If the defendants in the bill of revivor be minors, a guardian ad litem, must be appointed for them, who must accept the appointment, and who must be brought before the court, as in other cases, by his voluntary act or by process. When the defendants in a bill of revivor appear, they may abide by the ancestor of the deceased defendant or answer for themselves. If the deceased defendant, have not answered the new defendants must answer, or a decree pro confesso be taken against them, before a final decree can be-pronounced. This is the only correct course of practice, as is fully established by the authorities adduced on the part of the complainant, which are in conformity to the practice in our courts. ■

In the case before us the defendants in the bill of revivor were' all minors but the administrator. For these minors a guardian ad litem was appointed. But there is nothing in the record to show that he ever accepted the ajjpointment, or appeared or was notified to appear. No act seems to have been done by him. No answer is filed, no election to abide by the answer of the ancestor is made, no rule or order taken to obtain an appearance or answer. The final decree against the heirs is thus made against parties not in court, and who upon no principle of justice ought to be precluded by that decree. The fact that the ancestor had answered" does not vary the case. If that answer concluded them without their being heard, they must nevertheless be in court to be bound by the decree. There is, therefore, error in this particular in the decree, for which it must be reversed.

In both the bill and answer various matters of account were introdueed, and claimed and contested between the parties. Smith claimed that St. Clair was indebted to him for moneys advanced for partnership purposes, in erecting mill works upon the lands in. question. And it was in part, at least, upon this indebtedness of' St. Clair, that tho bill sought to raise a trust for Smith in St. Clair’s last purchase of the land. St. Clair, in his answer, denied that he owed Smith anything, and insisted, on the contrary, that Smith was largely his debtor. This question of indebtedness-*ought to have been settled before a decree was pronounced, charging St. Clair as a debtor. For conceding that the trust was established, St. Clair could not be required to pay to Smith any part of the profits arising on the sales of the lands, if Smith were indebted to him, as claimed, upon other accounts. Until an account was taken of all the money transactions set forth in the bi1? and answer, no correct decree could probably be made. It could1 not be material whether this account was taken by a master or by the court themselves. But it does not appear to have been taken at all, and the data upon which the counsel for the present defendants place the decree admits that all transactions were disregarded, except such as related to the last purchase and to the sales-of the land. This was erroneous, and supplies another ground for reversing the decree.

Upon the hypothesis assumed in the bill, St. Clair was debtor to the complainant-for one-half of the profits received upon the lands sold, and was trustee for him for one undivided half of the-lands unsold. There is nothing in this state of the ease that would give to the complainant a lien for the moneys due upon the land unsold. In this respect, both as against St. Clair and his creditors, the debt would stand upon the same foundation with other debts, and a decree should have been made against the administrator only for the amount. And against the heirs partition should have been decreed, as in the ordinary case of a tenancy in common, originating in a trust and decreed in equity. The decree in this case setting apart a portion' of the land to the complainant, in severalty, can not be supported upon any known or safe principles.

The direction that the infants, shall convey with warranty, is also erroneous. Infants are not capable in law of making covenants to bind themselves. A court of equity can not decree them to do it. The decree is not the less erroneous that it has operated no prejudice.

For these reasons the decree is reversed, and the cause is retained and remanded to the Supreme Court of Butler county, for further proceedings.


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    *Executors of Daniel Waymire v. Andrew Staley and others.
    Preference of liens.
    This was originally an application to the court of common pleas of Montgomery county, to distribute moneys made upon execution by the sheriff among different claimants. It was brought before this court by certiorari, and adjourned here for decision from, the Supreme Court sitting in Montgomery county. The case was this:
    At February term, 1823, Andrew Staley obtained judgment against Daniel Yount for five hundred and five dollars and fifty-four cents, debt and costs. Fi. fa. issued March, 1823, and returned stayed, by plaintiff’s order, and was regularly issued to each succeeding term, and returned in the same manner, until March, 1825, when it was returned levied upon various chattels, and on a writ of vendi. ex. to June, 1825, one hundred and forty-nine dollars and sixty-two cents was returned made. A new writ of fi. fa. was issued to November, 1825, March and July, 1826, returned nothing found; and upon a writ issued November; 1826, a levy was made upon lands, out of which the money in the sheriff’s hands was made.
    David Halloway, at March term, 1824, recovered two thousand one hundred and forty-eight dollars and ninety cents, against the same debtor. A fi.fa. issued November, 1824, was levied upon real estate, which was valued, and the writ returned not sold for want of bidders. A vendi. issued to May term, 1825, was returned with the same indorsement. At the same term the valuations were set aside, and a new valuation ordered, which was had upon a vendi. issued to October term, 1825, and a return indorsed of one thou.sand six hundred and seventy-nine dollars and twenty cents, made by a sale of the property, which sale was confirmed by the court. New writs of fi. fa. were issued to May- and September terms, 1826, and returned nothing found. A writ, dated October, 1826, was levied on the property, which was sold for the money in the sheriff’s hands to be distributed.
    At November, 1824, James Mendenhall recovered a judgment against Yount for two hundred and twenty-four dollars and *fifty cents, debt and costs. In J une, 1825, fi.fa. issued, returned to November term, levied on a lot of land, and sold for twenty-three dollars, and nothing found to levy further. Similar and successive writs were issued to all the terms in 1826, and returned in the same manner. A fi. fa. issued October, 1826, was levied upon the same land with the other writs enumerated, and a part of the money was claimed to satisfy this judgment also.
    October term, 1826, Dodd and Parkinson recovered a judgment against the same debtor, for one hundred and thirty-eight dollars and twelve cents, debt and costs. A writ of fi.fa. was issued to the first term in 1826, and returned nothing found. Another writ of ft. fa. was issued in October, 1826, which was levied on the same property, and claimed also to be paid out of proceeds of the sale.
    At February term, 1826, the executors of Waymire obtained their judgment for one hundred and fifty-five dollars and thirty-two cents. Execution issued to May and September terms of the same year, and returned nothing found. Another ft. fa. issued in October, and was levied as the others, and the proceeds claimed as in the other cases. All these latter writs were dated on the same day, October 26, 18.26, but that in favor of Halloway, was first put into the hands of the sheriff.
    Stoddart, for Waymire, Staley, and Mendenhall.
    Holt, for Halloway.
   By the Court :

This case is decided, we conceive, by the judgment of this court, in the cases of McCormick v. Alexander, and Patton v. Sheriff of Pickaway. Waymire’s judgment is the only one, of all who contend for this money, that was levied on the property in question within the year. By section 17 of the act of 1824, a preference is secured to it, because none of the other judgments were levied on this property within one year from the time they were rendered. In Patton’s case, it is settled that a levy upon other property does not take the case out of the provisions of section 17 *and we are satisfied it is rightly settled. In the same case, it is settled that section 4 of the act only applies to cases where the liens of the contending parties are equal, and does not touch a case, where, upon other principles, one party has a preferable lien. Waymire must, therefore, be first satisfied.

No one of the other judgment creditors having levied execution upon the property in dispute within twelve months from the rendering of their judgments, their liens are equal; and Halloway having put his execution first into the sheriff’s hands, has thereby obtained a preference next to Waymire, under the provisions of section 4. Between the others an equal distribution must be made. /


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    David Richmond v. J. and A. Patterson.
    Declaration upon a note in writing need not allege consideration.
    Double replications to a plea no ground of error after verdict finding both true.
    Copies of records from another state, though sworn to, are not evidence until it be shown that the records themselves are kept under authority of law.
    This cause came before the court upon a writ of error, and was adjourned here for decision from Jackson county.
    In the original suit, J. and A. Patterson declared upon a note in writing, in these words: “That the defendant on August 30, 1818, by his note in writing, of that date duly executed, promised in ninety days after date to pay to the plaintiffs fifty-three dollars, without defalcation,” as by said note to the court shown appears.
    The defendant pleaded non-assumpsit and infancy. To the latter plea the plaintiffs replied, first, traversing the infancy. Secondly, that the articles for which the note was given wero necessaries suitable to the defendant’s condition. Issues were joined, and on the trial a verdict was found for the plaintiffs on them all.
    At the trial a bill of exceptions was taken by the defendant’s counsel to an opinion of the court, rejecting a deposition offered by them. This was the deposition of the town clerk of New Milford, in the State of Connecticut, proving the correctness of a copy from the records of that town, showing the entry of the time of the defendant’s birth. The court decided that it was inadmissible as evidence, without ^further proof, than it contained within itself, of the law of Connecticut with respect to keeping such records, as that of which this purported to be a copy. .
    The plaintiff in error assigned for error :
    That the declaration did not aver that the note was given for, any, or what consideration.
    That there were double replicatious to a single plea.
    That the deposition was erroneously rejected.
    Brazed, for plaintiff in error,
    in support of the first error, cited 7 Term, 346; 3 Burr. 1663; 2 Blac. Com. 445; 2 Day, 22; 7 Johns. 28; 13 Johns. 337; Chitty on Bills, 12-62; Com. Con. 10-13; 4 Johns. 235; 1 Fonb. Eq. 335. He contended that the point was not decided either in Mors v. M’Cloud, 2 Ohio, 5, or in Dugan v. Campbell, 1 Ohio, 115.
    In support of the second point, he cited 1 Chitty Plead. 566, where it is laid down that “ at common law, a replication can not be double, or containing two or more answers to the same plea, and the statute of 4 Ann, c. 16, does not extend to replications.”
    On the third point no argument was submitted, and none was submitted by the counsel for the defendant in error.
   By the Court :

In the case of Mors v. M’Cloud, it is distinctly stated that the mode of declaring pursued in this case is in accordance with a long-established practice, which the court were not at liberty to disturb. We adhere to that opinion, so that the exception to the declaration can not be sustained.

As to the double replications, a majority of the court think it now too late to take exception to them. Each contained a good answer to the defendant’s plea, and both are found, by the jury, to be true. There must be some strong ground, indeed, to induce us to reverse the plaintiff’s judgment, because it appears that he has two valid answers to the defense set up, when' either one would be sufficient for him.

Had the defendant wished to confine the plaintiff to one answer to his plea, he should have objected to the double replications before the trial, when the court would have compelled the plaintiff to confine his proof to one, and ordered the other to be struck from the record. By waiving this and *going to trial, the fact has been found that both replications are true. Under these circumstances, it is too late to disturb the verdict. It is to prevent confusion at the trial that duplicity in pleading is prohibited. The exception must be taken in season to effect this object, or it is too late.

The deposition was properly rejected. Until proof was adduced, that the record copied was kept under the authority of law, it was nothing. A sworn copy of a private paper is nothing without proof of the original being executed. So the copy in this case was inadmissible, until it was proven that the paper copied and alleged to be a record was legally entitled to 'that character. In the absence of this proof, the deposition was rightly rejected.

The judgment of the court of common pleas must be affirmed.