Lessee of Paine v. Mooreland.

IN BANK. Farmer to Letts is the last deed in the chain of title on record.

Dec. Term, Letts conveyed to Lewis Nichols. This deed is not on record;

1846.

and neither Nichols nor any of his grantors were ever in possession of the land. On the 25th of October, A. D., 1831, Nichols, then residing in the State of New York, attempted to convey the land in controversy to Benjamin Paine, the lessor of the plaintiff, and at the same time delivered over to Paine the recorded deed from Farmer to Letts, and the recorded deed from Letts to Nichols. The conveyance from Nichols to Paine proved defective for the want of a seal. This mistake was corrected by the decree of the Court of Common Pleas, in Chancery, in 1839, perfecting the title of Paine as against Nichols. The defendant, Mooreland, was then in possession of the land, and was not made a party to the proceedings in Chancery. The execution of the unrecorded deeds is admitted.

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The defendant claims under proceedings in attachment against Nichols. On the 20th of June, 1832, (over eight months after Nichols attempted to convey to Paine, and delivered to him the unrecorded title papers,) an attachment was sucd out against Nichols by one John Elder, and this writ was returned by the sheriff with the following return indorsed, to wit: "Attached the following described property, viz: All 'that tract or parcel of land, lying and being in the county of Licking, and State of Ohio, in range twelve, township three, ' and section 1, the south half of lot number —, except twenty ( acres, to be taken out of the southwest corner of said half 'lot, commencing at the southwest corner and running north forty rods; thence east, so far as to contain twenty acres; 'which said twenty acres of land was sold to Bazaleel Mooreland by the defendant Nichols." At the March term of the Court of Common Pleas, 1833, a judgment was rendered under this attachment, by default, for $72.21, debt, and $9.50, damages and costs.

After the rendition of said judgment, and on the 6th day of July, A. D., 1833, a writ of execution was issued, called a

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Lessee of Paine v. Mooreland..

Dec. Term 1846.

fieri facias et livari facias, against Nichols, and upon the return IN BANK. day of said writ, the sheriff returned the same, with the following return indorsed, to wit: "Received this writ July 19, 1833. No goods. And in pursuance of the command thereof, I, on the 29th day of July thereafter, levied on the following 'described tract of land, to wit: Lying and being in the county of Licking, and State of Ohio, in range twelve, township three, and section one, U. S. M. land, bounded on the north by land of Theodoric Warthan, on the west by lands 'Bazaleel Mooreland, on the south by lands of Joseph King, ' and on the east by lands of containing one hundred acres, more or less ;" and after setting forth in said return, that he caused said land to be appraised and advertised for sale, according to the statute, &c., he further sets forth, "that on 'the third day of September thereafter, at the time and place, ' &c., I offered the same for sale at public outcry, when John Elder bid therefor the sum of sixteen dollars and sixty-seven cents; and that being two-thirds of the appraised value 'thereof, and no person appearing to bid any larger sum, the same was publicly struck off and sold to the said John Elder, for the sum aforesaid." And afterwards, at the September term, A. D., 1833, the following entry is made upon the journal, to wit:

"JOHN ELDER,

vs.

"LEWIS NICHOLS.

Order for deed same as above."

This entry is made on the journal, under similar order, in another case, written out in full. The sheriff afterwards conveyed to John Elder the tract, as it is described in the writ, through whom the defendant Mooreland derives title.

John Elder, the purchaser and plaintiff in attachment, had no notice, prior to the attachment, of the attempted conveyance to Paine.

It is admitted that the defendant is prepared to prove, by parol, that the land supposed to have been taken by the sheriff, under the writ of attachment, is part of the same tract that

Lessee of Paine v. Mooreland.

1846.

IN BANK. was afterwards levied on and sold under the execution issued Dec. Term, on the judgment in attachment; the land supposed to be attached is the same tract now in controversy. It is also admitted and understood, that the record and papers in the attachment suit, and the deeds and papers in the possession of the lessor of the plaintiff, and the record in the suit in chancery in the Common Pleas Court, of Paine v. Nichols, are all admitted in evidence, and to be considered as part of this agreed case, reserving all questions touching the admissibility of the record in the chancery suit of Paine v. Nichols, as evidence in the cause.

It is also agreed and understood to be admitted, that the deed made by the sheriff, under the order of the Court, in the attachment suit, to John Elder, the purchaser, was executed and delivered on the fourth day of November, A. D., 1834, and was received for record and recorded (Book W. p. 553,) on the 23d day of January, A. D., 1836.

The proceedings in attachment, under which the defendant derives title, do not show that any notice of the pendency of the suit in attachment was given, as the statute requires.

Geo. B. Smythe, for Plaintiff..

First: At the time of the attachment, Nichols, in fact, held but the naked legal title, in trust for Paine. This trust estate was not subject to execution, against the trustee; 1 Ohio Rep. 258. It is not sought to disturb the principles decided in Scribner v. Lockwood, and Parker's Lessee v. Miller, in 9 Ohio Reports; but they surely have carried the law far enough. Here the purchaser was not injured by the non-recording of the deed, because if he went to the record for information, there were other defects in the claim of title, as well as this.

The act under which this land was sold, provides that it shall be sold "under the same restrictions and regulations as if the same had been levied upon by execution." A sale on execution "shall vest in the purchaser as good and as perfect an

Lessee of Paine v. Mooreland.

Dec. Term 1846.

'estate in the premises therein mentioned, as was vested in the IN BANK. 'party at or after the time when the lands became liable," &c. Nichols at the time of the attachment, as before stated, was not vested of an estate. Swan's Stat. 476..

Second: There was no notice of the pendency of the proceedings in attachment, as required by the statute, without which the Court had no jurisdiction. This was not a proceeding according to the course of the common law. It was a proceeding under the statute, affecting title to real estate.Hence the provisions of the statute must be fully complied with; Adams' Lessee v. Jeffreys, 12 Ohio Rep. 271; 13 Mass. Rep. 73. But the precise point made here has been decided, as contended for the plaintiff, in Warren v. Webster et al., 13 Ohio Rep. 506.

It may be said this is a proceeding in rem, and therefore the land is bound, by the action of the Court. It is true the form of the proceedings is in rem, but they are not effectual to charge the land, till after there is a judgment in personam.

Third: The return upon the attachment is too vague to cover any particular land, and parol evidence is inadmissible to prove what land was actually attached. 4 Mass. Rep. 205; 7 Johns. Rep. 217; 4 Mass. Rep. 196; 5 Wheat. Rep. 359; 4 Peters' Rep. 350; 13 Johns. Rep. 77; 3 Ohio Rep. 272; Wright's Rep. 768; 1 N. Hampshire Rep. 93; and 5 Ohio Rep. 459.

Fourth: The sale by the sheriff conveyed no title, for the reason that no correct process was issued, upon which the sale was made. The statute required that an order should issue; the process issued was a fi. fa. This was void for the want of power to issue it, and of course all proceedings under it are void. 1 Ohio Rep. 466; 9 Ohio Rep. 112.

S. D. King, for Defendant.

The plaintiff makes four objections to the defendant's titleFirst That at the time of issuing the attachment, Nichols held but the naked legal title in trust for Paine.

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Dec. Term, 1846.

Lessee of Paine v. Mooreland.

Second: That the proceedings in the attachment were void for the want of the requisite notice.

Third: That in consequence of imperfection in the description of the land attached, the levy was void for uncertainty. Fourth: That the process under which the sale was made, was void.

First: It is believed that the decision of this Court, in the case of the Lessee of Parker v. Miller, 9 Ohio Rep. 108, is a complete answer to the first objection. It is claimed that there is a difference between this case and the one referred to in this particular, to wit: that the title of Nichols, the defendant in the attachment, did not appear on record, and that therefore the attaching creditor was bound to look after his title papers, which, being in the hands of the plaintiff, would have led to a discovery of his rights. The force of this reasoning is not perceived.

Second: To the second objection, that the proceedings in the attachment were void for the want of the requisite notice, we reply, that the proceedings cannot be thus collaterally impeached, unless the omission to give notice goes to the jurisdiction of the Court. Now, it is clear that the jurisdiction of the Court was complete, provided the requisite affidavit was made, and the property of the defendant in the attachment was seized. It is a proceeding in rem, and unless some property of the defendant can be found the jurisdiction fails. The Court, on the filing of the proper affidavit, is required to issue its writ; and if any thing can be found for the writ to act upon, the jurisdiction is obtained. In the case of Mitchell v. Eyster, 7 Ohio Rep. 257, it was held "that the fact of indebtedness of the defendant, his non-residence, and the actual levy upon his property, gave jurisdiction." And, in the case of Voorhees v. Jackson, 10 Peters' Rep. 449, it was decided, "that the 'want of evidence of publication upon the record was, at most, 'but error, and did not vitiate the proceedings."

It must be manifest, that the jurisdiction of the Court is acquired before the notice is required to be given, Parker's Lessee v. Miller, 9 Ohio Rep. 113.