Lessee of Paine v. Mooreland. Dec. Term, 1846. In the case of Lessee of Adams v. Jeffries, 12 Ohio Rep. IN BANK. 272, the Court use this language: "After jurisdiction is once ' acquired, however irregular and erroneous their proceedings 'may be, they cannot be collaterally impeached, and they con'clude all parties, unless annulled by certiorari or appeal.” Third: To the objection, that the levy of the writ of attachment was void, for want of certainty in the description of the property, we answer : The question of identity is always a matter for parol proof, and it is admitted, in the argued case, that such proof can be made, and that it is, in fact, the same land. The case of The Lessee of Mathews v. Thompson et al, 3 Ohio Rep. 273, settles this point. The levy, as indorsed on the writ in that case, was, "upon one hundred acres of land in section 4, township 7, range 4," with no further description. The Court held, "that the return ought to have been so specific as to enable the purchaser to ascertain the land which he purchased with certainty. This defect, however, may be 'supplied by parol testimony." In the same case, it was said by the Court," that a variance between the levy and the de scription in the (sheriff's) deed might also be explained by parol." "If the levy was actually made on the tract contained within the boundaries set out by the deed, and the fact was 'known and understood at the time of the sale, no injustice ' has been done." "An innocent purchaser, under such cir'cumstances, ought not to suffer by the careless manner in which the officer has stated his proceedings, if, in point of 'fact, they have been substantially correct." 3 Ohio Rep. 274. Fourth The last objection is, that the process upon which the sale was made, was void. The statute requires the property attached "to be sold by order of Court, under the same ' restrictions and regulations as if the same had been levied in ' execution;" Collated Stat. 92. This, we claim, has been substantially done. The fi. fa. issued by the clerk was the order of the Court on which the sale was made. The Court acts by its clerk, and the act of the clerk was the act of the Court. Lessee of Paine v. Mooreland. Dec. Term, 1846. IN BANK. If such proceeding was not strictly formal, the thing, nevertheless, intended to be done was done, and no injustice was done to any one. After the confirmation of the sale by the Court, and deed ordered to the purchaser, it surely cannot be held that such irregularity would affect the title. READ, J. Both parties derive title from Nichols - the plaintiff by direct purchase, and the defendant under a sale in attachment, The deed to Paine was defective, for want of seal. Its date was the 25th of October, 1831. This defect in the deed was barred by decree in chancery against Nichols, in the year 1839. This deed was not put upon record. Eight months after its execution and delivery, to wit, on the 20th of June, 1832, a writ of attachment was sued out against Nichols, at the instance of John Elder, and such proceedings were had in this suit, that the land conveyed to Paine was sold, bought by Elder, and, subsequently, by competent conveyance, transmitted to defendant. The judgment in attachment remains unreversed, and the defendant was not a party to the suit against Nichols, to correct the deed; and, at the time of the purchase under the attachment, Elder had no notice of Paine's equity. The determination of the following propositions must dispose of this cause: 1. Had Nichols an interest in the land subject to attach⚫ment? 2. Were the proceedings in attachment void? If Nichols had no interest in the land, or if the proceedings in attachment were void, then the plaintiff must recover. But, if he had an attachable interest, and the proceedings in attachment are not void, the defendant must recover. As to the decree in chancery, perfecting the title from Nichols to Paine, it is of no binding effect as to the defendant, as he claimed title to the land and was in possession at the time suit was brought, and was not made a party. Yet, the proceedings in such suit were competent evidence; as in one aspect of the case, to wit, if the proceedings in the attachment should Lessee of Paine v. Mooreland. Dec. Term, 1846. be held void, it would warrant a recovery, as the plaintiff must In Bank. recover upon the strength of his own title, and show that he had acquired the legal title from Nichols. Beyond this, the chancery proceeding can have no effect. As to the question, whether the land was subject to attachment as the property of Nichols : Nichols was the admitted owner of the land, unless he had divested himself of title by the conveyance to Paine. It is not contended that the defective deed to Paine transferred to him more than an equity. Nichols was still clothed with the legal title, and had the power to transfer the whole interest in the land to any person purchasing for a valuable consideration, without notice. In fact, he was the true owner, so far as third persons were concerned, without notice. It would not be contended, that, had he made sale to an innocent purchaser, without notice, that it would not have transmitted the whole title. Purchasers at judicial sales, without notice, are treated as innocent purchasers. They fall within the same principle of protection that is extended to private purchasers. Hence, the land was subject to attachment, as the property of Nichols. This doctrine is settled in numerous reported decisions. Lessee of Parker v. Miller, and Scribner v. Lockwood, 9 Ohio Rep. Are the proceedings in attachment void? It is contended they are void, because no notice of the pendency of the attachment was given, as required by the statute. If the jurisdiction of the Court once attached, subsequent irregularities would render the judgment voidable only; and it would remain valid until reversed, and cannot be impeached collaterally. What, then, gives the Court jurisdiction in a proceeding in attachment? The filing the proper affidavit, issuing the writ, and attaching the property. The moment the writ goes into the hands of the officer, he is authorized and required to seize the property. When this is done, the property is taken out of the possession of the debtor into the custody of the law. The Court have authority, at any time after the return of the writ, to direct property of a perishable nature to be sold. It is not Lessee of Paine v. Mooreland. IN BANK until after the return of the writ that the clerk is directed to Dec. Term, make out the advertisement, which the plaintiff is required to 1846. have published, as the statute directs. If he neglects to have such notice published, for six weeks successively, the statute directs that the attachment shall be dismissed with costs. Here, then, for a period of six weeks, at least, if the publication of the notice only gives jurisdiction, the Court both have, and have not jurisdiction over the property seized in attachment. It is contended the Court has no jurisdiction, and yet the statute authorizes the Court to exercise a judicial act over property attached, namely, to determine whether it is perishable, and if so, to direct its sale. Will it be contended, then, that the Court has jurisdiction over perishable property before notice consummated, but not over property not perishable? This is a distinction not authorized by the statute. A court acquires jurisdiction by its own process. If the process of the Court be executed upon the person or thing, concerning which the Court are to pronounce judgment, jurisdiction is acquired. The writ draws the person or thing within the power of the Court; the Court once having by its process acquired the power to adjudicate upon a person or thing, it has what is called jurisdiction. This power or jurisdiction is only acquired by its process. To give jurisdiction is the object of process. The mode of executing or serving process, is sometimes directed or permitted to be by notice by publication. All process issues under the seal of the Court. Notice by publication is not process, but, in certain cases in contemplation of law, is equivalent to service of process. The process in attachment is the writ authorizing and directing a seizure of the property. No process is issued against the person; because the proceeding is in rem. The statute, however, regards it but just that notice should be given to the debtor, not for the purpose of giving the Court jurisdiction over the subject matter, but to permit the debtor to have an opportunity to protect his rights, and directs that the writ shall be quashed if it be not given. The distinction is between a Lessee of Paine v. Mooreland. Dec. Term, 1346. lack of power or want of jurisdiction in the Court, and a IN BANk. wrongful or defective execution of the power. In the first instance, all acts of the Court not having jurisdiction or power, are void-in the latter, voidable only. A court, then, may act, first, without power or jurisdiction, second, having power or jurisdiction, may exercise it wrongfully; or, third, irregularly. In the first instance, the act or judgment of the Court is wholly void, and is as though it had not been done. The second is wrong, and must be reversed upon error. The third is irregular, and must be corrected by motion. The latter is where the power is rightfully exercised, but in an irregular way. Hence there is a vast distinction between a defect of power, a wrongful exercise of power, and an irregular exercise of power. Now, what happened in this instance? The Court had the power, by the service of its process, to proceed and give judgment; but a circumstance occurred after having acquired such power, which forbid them the exercise of it; but having it, they did exercise it, which was error. But it can only be corrected by a writ of error. Such appears to have been the decision of the Court in Parker v. Miller, 9 Ohio Rep. 108, and cases there cited. The case in 10 Peters' Rep., Voorhees v. ̈ The Bank of the United States, recognizes these principles. It is true that it has been decided, in Warner v. Webster, 13 Ohio Rep. 506, that a judgment in attachment, if notice had not been given, was void. That case was rightly decided, although a wrong reason was assigned. The truth is, in that case, an equity was attached, when the statute under which that proceeding was had, only authorized an attachment against a legal estate. The process, therefore, not having been executed upon a subject matter within its rightful action, brought nothing before the Court upon which they had power to act, and, therefore, the judgment was void for want of jurisdiction. But it is contended that the purchaser under the sale bond in the attachment, took nothing, because the sale was upon a fi. fa., and not an order of the Court. The act allowing and regulating writs of attachment, of June 24th, 1824, directs that, after judgment, the property attached shall be sold by order of |