lines approaching the river were so run as to extend only to certain points on the bank of the river, at greater or less distances from the margin of the water, which points are designated by the survey as corners to the respective subdivisions of the reservation. And also that the river was meandered on the bank thereof, to and from said respective corners."

That the meander-lines run in surveying portions of the public lands bordering upon navigable rivers, are run, not as boundaries of the tract, but as a means of ascertaining the quantity of land to be paid for by the purchaser, was decided in Railroad Company v. Schurmeir, supra. The meander-line, therefore, in the present instance, not being a boundary line, the only boundary was the river; and the question is, when the boundary line of a riparian owner is thus described, where is it to be located? Gavit v. Chambers answers, at the middle of the stream, as at common law.

The act in question provided for the survey and sale of the tract of two miles square, at the lower rapids of the Sandusky river, ceded by the Indians to the United States, by the treaty of Greenville.

The second section provided that, previously to the disposal of the tract, the surveyor-general should re-survey and mark the exterior lines of the tract, conformably to a survey previously made. It also required him "to cause divisional lines to be run through each fractional section, and that of the adjoining quarter section, so that each subdivision, having one front on the river, may contain, as near as may be, eighty acres. And in like manner to cause the large island, lying in the west half of section number one, to be surveyed, and the same to be divided into two equal parts."

One of the provisos in the section is, "That in no case shall the subdivisional lines so run as to extend to, or embrace the bed of the river, which shall be deemed, and is hereby declared to be, a public highway."

The third section provides, "That all the land contained in the aforesaid cession, of two miles square, shall, with the exception of as many town lots and out-lots as in the opinion of the secretary of the treasury may be necessary to reserve for the support of schools within the same, and with the exception also of the salt springs, and the land reserved for the use of the same, be offered for sale to the highest bidder," &c. It is also provided that "the divided quarter sections and fractional sections shall not be sold for less than twc dollars per acre; the in-lots for less than twenty dollars each, nor any out-lots for less than at the rate of five dollars per acre."

It seems to us that the only exceptions or reservations from sale intended by the act, were the lots for the support of schools, the salt springs, and the land for the use of the same, and the use of the river for the purposes of a highway.

In the argument for the plaintiffs in error, stress is laid on the provision requiring the sub

1. The act of May 1, 1861 (58 O. L. 113), which exempts from sale the property of persons belonging to the militia of Ohio, who have been mustered into the military service of the United States under any requisition of the president, is an act conferring upon a certain class of persons a right or privilege, which must be asserted by him who seeks its benefit.

2. Where, after judgment and order of sale have been duly and regularly entered in an action to foreclose a mortgage, the mortgagor becomes entitled to this exemption, by being mustered into the United States' service for three years, if the war should last that long, and a sale is made and confirmed, and deed executed to the purchaser, while he is still in such service, the sale and proceedings are not void, but voidable only.

3. In case of a sale of the mortgaged premises upon a decree of a foreclosure, while the mortgagor is entitled to such exemption, and the sale is confirmed, deed made and possession taken without objection by him, his proper mode of relief, if entitled to any, after confirmation, and the proceedings are not reversible for error, is by a direct proceeding in that case, to have such sale and confirmation set aside.

Appeal-Reserved in the District Court of Cuyahoga County.

The question for decision arises on a demurrer to the petition, on the ground that it does not state facts constituting a cause of action.

The petition was filed in the Superior Court of Cuyahoga County, and on appeal to the district court was reserved for decision in this court.

The plaintiff alleges that, on September 28, 1861, one Hiram Iddings, now deceased, commenced an action in the court of common pleas of said county against him, for a foreclosure of two mortgages, executed in 1853 and 1856, by him, to secure certain notes, of which notes and mortgages Iddings had become the owner; that on December 1, 1861, judgment for the amount due was rendered, and an order of sale granted on default of payment for ten days, and that the property was appraised and advertised to be sold January 30, 1862.

He also alleges that he was a citizen of Ohio, belonging to the militia force of the state, and that he volunteered into the United States' service in the late war, and was accepted and mustered into such service January 21, 1862, for three years, if the war should last so long, and continued in such service until January 2, 1865, when he was discharged.

For the purpose of staying the proceedings

the proper court or officer. The officer has no power to dis bey the command of the process in his hands upon an order of sale legally made. Again, like all other exemptions, whether of enumerated articles, or dependent upon selection, the right may be waived. Frost v. Shaw, 3 Ohio St. 270.

This being so, the sale and confirmation without objection is not void, but, at most, is voidable only. The remedy for the debtor is to assert his privilege either by resisting the confirmation before the court, or, if he has had no opportunity to do this, by a direct proceeding in the foreclosure suit, to set aside the sale and confirmation. Being voidable only, the title cannot be attacked collaterally.

What are the facts of this case?

The notes and mortgage were given long prior to this statute. The action to foreclose and for judgment, and the judgment and order of sale, were made in due course of law. Subsequently the debtor, by being mustered into the United States service, became entitled to have the order of sale stayed while he was in such service, and for two months thereafter. He made an ineffectual attempt to do this by a petition for a restraining order, but this failed, either because he did not give the proper bond, or by the act of his attorney in dismissing the action. The fact that his attorney did this without his knowledge or consent cannot affect the action of the court, in confirming a sale against which there was no objection interposed, after the dismissal of the action to restrain.

He made no further objection, by motion or otherwise, to the confirmation of the sale, or to the execution of the deed to the purchaser. He surrendered possession of the premises, and without objection, to the court or the purchaser, allowed the latter to take possession, and by sales and conveyances transmit title and possession to Monroe, and through him by sundry mesne conveyances to the present owners, none of whom had notice, so far as is alleged, of the plaintiff's claim. It is not alleged that they are not bona fide purchasers for a valuable consideration, and we must assume that they were.

The sale was confirmed in March, 1862, and this action was brought in November, 1874.

For more than twelve years he slept upon his rights, if he had any, after failing to object to the confirmation, and has allowed the property to be several times sold, and to pass into the hands of innocent holders.

His proper remedy in the first instance was, to object to the sale and confirmation. Aside from the provisions of the statute of limitations, the rule in chancery was, that the proper remedy for a party whose property was sold by a master without authority, was by an application in the foreclosure suit to have the sale set aside. But such an objection would not be listened to after a great lapse of time. Nichols v. Nichols, 8 Paige, 349.

Neither will a sale be set aside and a re-sale directed, to protect persons competent to protect

their own rights, from their own negligence. American Ins. Co. v. Oakley, 9 Paige, 259.

The purchaser at such a sale has the right to be protected in his purchase, and after the sale had been confirmed, deed made and possession taken thereunder, his title is perfect until the proceedings in the foreclosure suit are opened up in a direct proceeding for that purpose. And this rule applies as well to a mortgagee who is a purchaser as to a stranger. Brown v. Frost, 10 Paige, 204.

This was a case of a purchase by a mortgagee, at his own sale in foreclosure, who received a deed from the master. On the same day, but after actual delivery of the deed, the mortgagor tendered the whole amount due and demanded a a redemption, which being refused, he filed an original bill in chancery to be allowed to redeem.

Chancellor Walworth, in deciding against the complainant, says, the decree in the original suit in foreclosure, is conclusive upon the rights of the parties, and cannot be opened up or disturbed in a collateral way; ad he expressed the very decided opinion "that an original bill in chancery cannot be sustained by a party to a foreclosure suit, to impeach or set aside the proceedings upon a master's sale under the decree, when there was nothing which could have prevented an application to the court, in that suit, for a re-sale, by those who are interested in the premises;" and he cites numerous authorities to the effect that the proper remedy is by a summary application, in the suit in which the foreclosure decree was made, for relief.

The present action is in the nature of an original bill in chancery, filed in the superior court, by the mortgagor, for a redemption of premises sold and conveyed under a decree of foreclosure, made in the court of common pleas of the same county, over twelve years before the commencement of this action. It is not an appeal to the same court in the same suit. This cannot be done unless the sale, confirmation and conveyances are nullities. Clearly they are not, but at most are voidable only.

No reason is shown why plaintiff did not appear and resist confirmation of the sale. If, after neglecting to do this, he was entitled to relief, he should state facts warranting the court in granting it. No such facts are stated even as against the heirs of Iddings, after the lapse of so many years, much less as against innocent bona fide purchasers.

Demurrer to the petition sustained, and petitron dismissed.

[This case will appear in 36 O. S.]

SUPREME COURT OF OHIO.

MARY JANE ABBOTT v. HENRY BOSWORTH.

1. Where the signing and sealing of a lease for ninetynine years, renewable forever, are attested by but one witness, the lessee acquires only an equitable title.

2. To entitle a widow to dower in an equitable estate of her husband he must have owned said estate at the

time of his decease. Rands v. Kendall, 15 Ohio, 671, followed.

Error to the Superior Court of Cincinnati.

This was an action by Mary Jane Abbott against Henry S. Bosworth, for dower in the south half of the premises below described.

The Court found the following facts, and upon them gave judgment for the defendant.

"1. On February 1, 1840, the trustees of Lane Seminary, by indenture of that date, and recorded in book 104, page 430 of the records of said county, demised to Jonathan Ely, his heirs, executors, administrators and assigns, a tract of ground fronting 167 34-100 feet on Elm street, by 406 6-10 feet on Locust street, for 99 years, from October 21, 1830, renewable forever on the same terms, for an annual rent of thirty-one dollars, which Ely for himself, his heirs, etc., covenanted to pay. Said lease was duly executed, and acknowledged, save that there was but one subscribing witness.

"2. By an instrument in writing, without date, but acknowledged May 8, 1841, and attested by one witness only, and indorsed on the original lease, Jonathan Ely, in consideration of fifteen dollars, paid by Isaac C. Abbott, sold and conveyed to the said Abbott, his executors, administrators, and assigns, the within lease and all and singular the within demised premises.'

"3. On June 25, 1841, Isaac C. Abbott, in consideration of $1.25, demised all his claim, title, and interest to the south half of said land to Leonard H. Nason, for the unexpired term of said lease and renewable forever, Nason covenanting in the instrument to pay to the trustees of Lane Seminary, sixteen dollars per annum rent, payable on the same days as the rents reserved in the original lease.

"The plaintiff, who was the wife of said Abbott, did not join in this instrument."

The trustees of said seminary at the date of the lease to Ely held the title in fee. The defendant now holds through sundry mesne assignments the interest acquired by Nason. Isaac C. Abbott died in 1876. Upon this state of facts the plaintiff claims that she is entitled to dower in said south half of said premises.

C. D. Robertson, for plaintiff in error.
Sage & Hinkle, for defendant in error.
BOYNTON, C. J.

To entitle the plaintiff to dower in the premises deinised by Isaac C. Abbott to Nason, it must appear that such estate was one of inheritance within the meaning of the act relating to dower, passed January 28, 1823 (1824), 29 Ohio L. 249. The first section of that act provided, that the widow of any person dying shall be endowed of one full and equal third part of all lands, tenements and real estate of which her husband was seized, as an estate of inheritance, at any time during the coverture. And of one third part of all the right, title and interest, that her husband at the time of his decease, had in any lands and tenements, held by bond, article, lease, or other evidence of claim.

By the act of March 5, 1839 (2 S. & C. 1142), it is provided, "that permanent leasehold estates, renewable forever, shall be subject to the same law of descent and distribution as estates in fee simple are or may be subject to." If it be granted that the effect of this provision is to convert permanent leasehold estates into estates of inheritance, where the instrument creating the estate is properly executed and acknowledged, and that the widow of the lessee is consequently entitled to dower in the leasehold premises, there still is an insuperable ob

jection to the plaintiff's right of dower in the estate or interest assigned to her husband by Jonathan Ely.

The lease to Ely from the trustees of the seminary had but one witness, and his lease to Abbott had but one. Consequently neither of them acquired any legal title to the premises demised. The first section of the act to provide for the proof, acknowledgement and recording of deeds and other instruments of writing (1 S. & C. 458) requires the signing and sealing of all instruments in writing by which any land, tenement or hereditament shall be conveyed, or otherwise affected or incumbered in law, to be acknowledged by the grantor or maker in the presence of two witnesses, who must attest such signing and sealing, and subscribe their names to such attestation. By the ninth section of said act, a lease of school or ministerial lands for a term not exceeding ten years, and of any other lands for a term not exceeding three years, is excepted from this requirement.

The lease in the present case does not fall within the the class not required to be acknowledged. It was a lease for ninety-nine years, renewable forever, and to create thereby a legal estate or seizin, its execution attested by two witnesses was an'indispensable formality. Hence, the estate acquired by Ely, and the only one he could part with, was wholly equitable; and had he possessed a legal estate instead of an equitable one, Abbott could have acquired but an equitable interest under a lease attested by but one witness. To entitle a widow to dower in an estate of which her husband had an equitable title only, he must have owned such equitable estate at the time of his decease. Rands v. Kendall, 15 Ohio 671. Judgment affirmed.

[This case will appear in 36 O. S.]

SUPREME COURT OF PENNSYLVANIA.

ASH v. GUIE.

MAY 2, 1881.

1. Mutual Beneficial Society-Partnership. A mutual beneficial society is not governed by the same rules as to the liability of its members to third persons as a trading partnership, but rather by those applicable to a club, and the authority of its officers and committees depends on its constitution and rules.

2.

Masonic Lodge-Seal. Where a contract is made in the name of a masonic lodge and under its seal, with reference to a matter not contemplated by its constitution, those members who so far assent to or ratify the contract are bound and no others.

3. Seal. In such case the seal will be regarded as the seal of those members so signing, assenting, or ratifying, and not as the seal of the lodge.

4. Former Recovery. A recovery against a masonic lodge by its name and without naming any of its members will not be a bar to a subsequent action against a member who was not served and did not appear.

Error to Common Pleas of Chester County.

Action against Ash and one hundred and nine others described in the writ as lately trading as Williamson Lodge No. 309, A. F. M. The writ was an assumpsit, and the narr. contained a count in debt on a sealed instrument with the common counts in debt. Pleas non assumpsit, the statute of limitations, and a plea by one of the defendants of a former recovery. The action was brought on a certificate of indebtedness in the following form, under the seal and signed by the officers of Williamson Lodge: "This is to certify that Williamson Lodge, No. 309. A. F.

concerns. Ricketts v. Bennett, 4 C. B. 676; 4 M., G. & S. 686.

TRUNKEY, J.,

In delivering the opinion of the court, said: One of the defendants called by plaintiffs testified, "The purposes of our lodge are charitable, benevolent, and social." A partnership has been defined to be a "combination by two or more persons of capital, or labor, or skill, for the purpose of business for their common benefit." It would seem that there must be a community of interest for business purposes. Hence voluntary associations or clubs, for social and charitable purposes and the like, are not proper partnerships, nor have their members the powers and responsibilities of partners. Parsons Part. 6, 36, 42.

A benevolent and social society has rarely ever been considered a partnership. In Lloyd v. Loaring, 6 Ves. 773, the point was not made; but Lord Eldon thought the bill would lie on the ground of joint ownership of the personal property in the members of a masonic lodge; there was no intimation that they were partners. Where a society of odd fellows erected a building which was afterwards sold at sheriff's sale in satisfaction of mechanic's lien, in the distribution of the proceeds it was said that, as respected third persons, the members were partners, and that lien creditors who were not members were entitled to performance as against the liens of members. Babb v. Reed, 5 Rawle, 151. Had the members been called joint tenants of the real estate the same principle would have applied. In Flemyng v. Hector, 2 M. & W. 172, Lord Abinger held that a club and its committee must stand on the ground of principal and agent, and that the authority of the committee depends on the constitution of the club, which is to be found in its own rules. A mutual beneficial society partakes more of the character of a club than of a trading association. Every partner is agent for the partnership, and as concerns himself he is a principal, and he may bind the others by contract though it be against an agreement between himself and his partner. A joint tenant has not the same power by virtue of the relation to bind his co-tenant. Thus one of several co-adventurers in a mine has not, as such, any authority to pledge the credit of the general body for money borrowed for the purposes of the

Here there is no evidence to warrant an inference, that when a person joined the lodge he bound himself as a partner in the business of purchasing real estate and erecting buildings, or as a partner so that other members could borrow money on his credit. The proof fails to show that the officers, or a committee, or any number of members had a right to contract debts for the building of a temple which would be valid against every member from the mere fact that he was a member of the lodge. But those who enin the enterprise are liable far the debts they contracted, and all are included in such liability who assented to the undertaking or subsequently ratified it. We are of opinion that it was error to rule that all the members were liable as partners in their relation to third persons in the same manner as individuals associated for the purpose of carrying on a trade.

All

This unincorporated association had a seal which the officers were authorized to use for certain purposes. Some of those who engaged in the business of borrowing money directed it to be affixed to the certificate of indebtedness. who did, adopted it as their seal for the specific purpose. It was not the seal of a corporation nor intended as such. The party borrowed the money in the name of the lodge, and gave the certificate in the same name, and adopted a common seal. They cannot repudiate it, in good faith to the lender. He loaned the money on a sealed instrument. Those who advised affixing the seal should be held the same as their officers who signed the certificate. Were the members partners, without evidence of agreement between them that the seal should be affixed to contracts, those not assenting to its use in that way would not be bound by a sealed instrument, though given for a debt for which all were liable. Schmertz v. Shreeve, 12 P. F. S. 457. The learned judge was right in ruling that the certificate was a sealed instrument, but not, under the evidence, in holding that it was authorized by all the members.

Elston pleaded a former recovery against "the Williamson Lodge, No. 309, A. F. M." The court properly remarked that if judgment had been recovered in that suit against any of these defendants it would not have precluded recovery in a subsequent action against those not joined. That was not a recovery against any person, natural or artificial. The writ was not served on Elston, nor did he appear. It is not to the purpose to speak of the result, had property held in the name of the lodge been sued in satisfaction of the judgment. The plaintiff has received nothing, and Elston was not a party in that proceeding. The act of May 25, 1878 (P. L. 153), provides that in all civil proceedings by or against surviving partners no interest or policy of law shall exclude any party to the record from testifying to matters having occurred between the surviving party and the adverse party on the record. Those jointly concerned in a