Lessee of Boswell and others v. Sharp and others.

'Columbus, Ohio, and made oath that the order in this case, IN BANK. 'made at the last term of the Court, to give defendants notice,

&c., has been published in said paper nine weeks succes

sively, since the last term aforesaid. O. Parrish. Sworn and 'subscribed in open Court. Jas. A. Schranton, Clerk.”

JOURNAL ENTRY MADE MAY TERM, 1826.

"This day came the complainant, by his counsel, and the ' defendants still failing to appear and plead, answer or demur 'to complainant's bill. On motion of said complainant's counsel, it is ordered, adjudged, and decreed, that the matters and things in said bill set forth and charged, be taken as confessed by defendants. And it is further ordered, that James A. 'Schranton be appointed Special Master Commissioner, to take an account between the parties, and report to this Court the amount due from defendants to complainant, for money advanced and labor done in erecting and building the mill in bill ' mentioned, more than his share of the expenditures in building said mill, and report the evidences on which his report 'shall be made. All other questions relative to this cause are 'open and continued till final decree."

MASTER'S REPORT, MADE TO THE JULY TERM OF SAID COURT,
A. D., 1826.

Divers small sums are set out, amounting to the

gross sum of.....

Book account; charges made by complainant for

$2,016 86

cash paid out, labor done, and materials furnished, 2,417 67 Five years' services by complainant, from the year 1817 until 1821, at $220 pear year.......

Dec. Term,

1846.

1,100 00

$5,534 53

Deduct from the above, one-fourth, complainant's

share

1,374 64

$4,159 89

Lessee of Boswell and others v. Sharp and others.

IN BANK. Amount received by complainant, of de

Dee. Term,

1846.

FINAL DECREE, MADE AT THE JULY TERM, A. D. 1826.

"And now, at this day, came the complainant, by his solici'tor, and this cause came on for final hearing, upon the decree pro confesso aforesaid; and the bill and exhibits filed in this 'cause, and upon the report of James A. Schranton, the Spe

cial Master Commissioner in Chancery, to whom the same 'was referred; and the said Master having reported to this Court, in pursuance of their said order, that there was due complainant from the defendants the sum of $1,844.17, for <his disbursements, advances and services; the account having 'been received and inspected, the said report is accepted and confirmed by the said Court, and find the said sum of $1,844.17 to be due from the defendants to the complain

'ant.

6

And thereupon the Court do order, adjudge, and decree, that the complainant do recover of the said defendants 'the said sum of $1,844.17, and his costs by him in this be' half expended. It is further ordered, adjudged, and decreed, 'that this decree shall, from the time of its being pronounced, have the force, operation, and effect of a judgment at law, ' and shall be a lien upon all the town lots of the defendants 'within said county, and also on all other real estate of the 'said defendants, within said county of Sandusky, as security for the satisfaction of said decree. And it is further ordered, adjudged, and decreed, that if the above sum of $1,844.17 'be not paid within thirty days from the date of this decree, upon a precipe being filed with the Clerk of this Court, by 'the complainant or his solicitor, execution shall issue against

Lessee of Boswell and others v. Sharp and others.

Dec. Term,

1846.

the goods, chattels, lands and tenements of the defendants, IN BANK. 'which shall be taken in execution, and sold in like manner as though said execution issued on a judgment rendered in a 6 court of law. And all further proceedings in this cause to be 'continued until next term."

No further action of the Court was ever had in the case; but on the eighth day of August, A. D. 1826, an execution was issued on this decree, on the twelfth it was levied on the lot in question, and on the twenty-fifth of September, A. D. 1826, it was sold by the sheriff, and bid off by said Hawkins, and the defendants in this suit hold whatever passed at said sale.

Bartlett & Watson, for Plaintiff in Error.

It is insisted by the plaintiff, that the legal title to the land in controversy remains unaffected by the proceedings in chancery

First: Because jurisdiction was not conferred upon the Court, by the publication of notice, over the subject matter upon which the decree is based.

All demands of a personal character attach themselves to the person of the party, and follow him wherever he goes; and their enforcement depends upon the laws of the country, where the party is found.

At common law, bills, to enforce the specific execution of contracts for the conveyance of land, could only be prosecuted where the party could be personally served with process. Massie v. Watts, 2 U. S. Cond. Rep. 332; Story's Eq. Pl. 482.

Hence, it is by virtue of statutory provisions that a Court has jurisdiction over a thing, when the person cannot be reached, and the party must bring his case within its provisions. Raburn v. Shortridge, 2 Blackf. Rep. 109.

Courts, when proceeding under notice by publication, are courts of special and limited jurisdiction, and cannot extend their decree beyond the provisions of the statute, even when

Dec. Term,

Lessee of Boswell and others v. Sharp and others.

IN BANK. the proceeding is strictly in rem. Hollingsworth v. Barbour et al., 4 Peters' Rep. 466; Duval v. Duval, 13 Mass. Rep. 263.

1846.

Second: The Court of Chancery had no jurisdiction of the case, for the reason, that the prescribed publication was not made. The law required that the notice should "set forth the 'pendency of such petition, and the substance of the prayer thereof." The proof was, that the order of the Court had been published. This, certainly, was not a substantial compliance with the law; without which the Court had not jurisdiction. Dunning v. Corwin, 11 Wend. Rep. 647; Thatcher v. Powell, 6 Wheat. Rep. 119; Jackson v. Esty, 7 Wend. Rep. 148.

The principle for which we are contending is also recognized and enforced in the following cases: Warner v. Webster, 13 Ohio Rep. 506; Humphrey v. Wood, Wright's Rep. 566; Bennett's Lessee v. Williams, 5 Ohio Cond. Rep. 293; Campbell v. Cowden et al., Wright's Rep. 484; Taylor v. Kelson, 1 Blackf. Rep. 215; Lessee of Adams v. Jeffries, 12 Ohio Rep. 271; 6 Har. & Johns. Rep. 130; 6 Wheat. Rep. 119; 11 Wend. Rep. 647; 12 Wend. Rep. 9.

Third: The proceedings are void for want of a pertinent description of the land. Lessee of Massie's Heirs v. Long, 2 Ohio Rep. 287; Treou's Lessee v. Emerick, 6 Ohio Rep. 391; Pelton v. Platner, 13 Ohio Rep. 219.

Fourth If jurisdiction was acquired for any purpose, it was such only as authorized a proceeding in rem, and the Court transcended its authority in making a personal decree. It acquired jurisdiction only for a specific purpose; beyond that it had no power. Story on Con. of Laws, 461; Bates v. Delavan, 5 Paige's Rep. 299; Bissell v. Briggs, 5 Mass. Rep. 468; Kibby v. Kibby, Kirby's Rep. 119; Mitchell's Lessee v. Eyster, 7 Ohio Rep. 384.

The statute, giving the Court of Chancery power over land, within the county, did not attempt to confer upon it a jurisdiction in personam against nonresidents; neither had the

Lessee of Boswell and others v. Sharp and others.

Dec. Term,

1846.

Legislature power to confer upon the courts such an act of IN BANK. sovereignty. 3 Phil. Ev. (Cowen & Hill's notes) 908; Buchanan v. Rucker, 9 East's Rep. 192; Lincoln v. Tower, 2 McLean's Rep. 482; Mills v, Durgee, 7 Cranch Rep. 482; Picquet v. Swan, 5 Mason's Rep. 35; Lockwood v. Wildman, 13 Ohio Rep. 450; 7 Johns. Ch. Rep. 1.

If the defendant is not served with process within the jurisdiction of the Court, and does not appear to the suit, a valid personal judgment or decree cannot be taken against him. To sustain this position, there is a strong and unbroken current of authorities. 5 Johns, Rep. 37; 8 Johns. Rep. 195; 6 Wend. Rep. 447; 13 Wend. Rep. 407; 2 Blackf. Rep. 82; 4 Conn. Rep. 380; 3 Wils. Rep. 197; 10 Serg. & Rawle's Rep. 240; 7 Ohio Rep. 273; 13 Ohio Rep. 209; 1 Kent's Com. 261, note b.

Buckland, Hays and Lane, for Defendants.

The plaintiffs' title is shown by a patent.

The defendants' title depends upon the validity of a judicial sale, under the proceedings of the Court of Common Pleas of Sandusky county, in the case of Hawkins v. Boswell et al. The plaintiffs are expected to publish the records in their brief. If not, an exemplified copy will be found among the papers, it being a part of the bill of exceptions.

It is understood, the strongest objection to the title, is, the want of sufficient notice. The statute of 1824, (XXII, 75,) was in force at the time of these proceedings. The 12th section provides:

"That in all cases properly cognizable in a court of equity, 'when either the title to or boundaries of land may come in ' question, or when a suit in chancery becomes necessary in or'der to obtain the rescission of a contract for the conveyance

of land, or to compel a specific execution of such contract, ' and the defendant or defendants against whom a decree is sought is or are not resident within the State, it shall be com