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Lessee of Boswell and others v. Sharp and others.

Dec. Term

• is paid by the purchaser; the property purchased is restored in Bank. to the defendant, without any obligation to refund; and that

1846. which was, when sold, of little value, and bought at its full • price paid to the defendant's use, becomes his rightful estate * when the remote out-lot has become a mart for commerce • and covered with valuable improvements.

“ The principles which must govern this, and all other sales • by judicial process, are general ones, and adopted for the • security of titles, the repose of possession, and the enjoyment • of property by innocent purchasers, who are the favorites of

the law in every court and by every code. * * * * If * the jurisdiction was improvidently exercised, or' in a manner • not warranted by the evidence before it, it is not to be cor• rected at the expense of the purchaser, who had a right to

rely upon the order of the Court, as an authority emanating • from a competent jurisdiction.” 2 Peters' Rep. 163, 168.

“When a Court has jurisdiction, it has a right to decide every question that arises in the cause; and whether the decision be correct or not, its judgment, until reversed, is regarded as binding in every other Court.Elliot v. Pierrel, 1 Peters' Rep. 340; 2 Peters' Rep. 169; 10 Peters' Rep. 474.

It is needless to multiply these quotations. It cannot be necessary to remind the Court of the cases, where the finding, even by implication, by a Court of limited jurisdiction, of a fact, whose existence is necessary to confer jurisdiction upon it, is itself an exercise of jurisdiction sufficient to establish its authority, and conclusive upon all interests. Whenever a subject exists admitting any such exercise of judicial power, any action of the Court upon it is conclusive. 2 Howard's Rep. 339.

Fourth: The defendants have to submit one other view of this question. Admitting that the 12th section required the notice to contain substance of the prayer in certain cases, is this case among them? That section points out four cases in which the Court have a right to direct publication, namely — to settle land titles' or boundaries, to rescind, or to execute contracts. This enumeration omits large subjects of Chancery

Lessee of Boswell and others v. Sharp and others.

1846.

In Bank. interference, as mortgages, liens, judgments, trusts, &c. &c. Dec. Term, N

". Now, hence arises the alternative, that, during the seven years

when this statute was in force, either Ohio Courts of Chancery had no jurisdiction over nonresidents' property, except in the enumerated cases, or they had jurisdiction in some cases where the form of notice was not prescribed. The first member of this alternative proposition will hardly be maintained. “It were a brave thing indeed,” if there ever was a time when Ohio

Courts could not foreclosė, a nonresident mortgage, or could :: fail to find means to subject to the satisfaction of a judgment or

decree, the property of a stranger, which lay within its power.

The latter alternative is therefore true, and Ohio Courts could . acquire jurisdiction in nonenumerated cases, by such process as conforms to the analogies of similar proceedings. If, then, a plaintiff were about to pursue a lien upon partnership property, a nonenumerated case, but one of undoubted jurisdiction, and the process employed answers every object of giving notice, and precisely conforms to the existing and well established practice, there is no difficulty in sustaining the jurisdiction of the Court. Now this precise case is shown in these proceedings. The bill was filed for two objects; one, to obtain a title to his share of the land, the other, to extend the lien for his advancements over partnership property. One was among the enumerated objects, the other was not. - The enumerated cause of action was never pursued, but abandoned without an effort to maintain it; the nonenumerated subject was pursued to decree. The case, therefore, as made and pursued, was one in which the Court could acquire jurisdiction, by its own forms of notice, without being restricted by the provisions applicable to the enumerated grounds of equitable bills.

Fifth: Should all these positions fail, the defendants do not yet despair of sustaining the authority of the Court. Where either person or property are found within the jurisdiction of a given forum, which is competent to investigate a wrong, and whose forms of action furnish appropriate relief, its jurisdiction : is complete, and it will so shape its proceedings as to render its

Lessee of Boswell and others v. Sharp and others.

Dec. Term,

1846.

interposition effectual: Story's Conflict, sec. 539; 5 Littel, In Bank.
49. It is among the rights, privileges and duties of Chancery,
where relief for an injury depends upon a relation to the pro-
perty of nonresidents, within its jurisdiction, to prescribe its
own terms for the service of process to prevent a failure of jus-
tice.“ This power is exercised in every case of what is called
“substituted service.” It is the course of the Court, where
ordinary process cannot reach the defendant, to prescribe, by
order, some form of service which the Court will regard equiva-
. lent to it. Usually, it is the service upon the attorney, solicitor,

or agent, or even by leaving subpæna at the last place of abode
of a defendant not within the government: 1 Barbour's Prac-
tice, 52. Where defendant is absent, service at his store on:
his servant, may be good service: 11 Paige, 288; 20 Wend.
570. So, service on a guardian of an infant, a lunatic, may, by :
order, be made good service on the ward: 9 Ves. 357. Or-
ders for substituted service are granted now with more caution
than formerly; but they are still granted in proper cases, and
they establish our present position, viz: That every Court of
Chancery having jurisdiction over the subject, has an inherent
power, not arising from statute, but from the very nature of the
Court, (which relieves, beyond the ordinary forms of law,) of
adopting such process as, in its judgment, will afford due relief.
But if the power be admitted to exist in any case, it must exist
in all; and it affords a just basis for the principle we maintain,
that Chancery, this extraordinary tribunal, exercising powers
beyond the ordinary courts of law, and adapting remedies to all
exigencies, does possess authority where property is found
amenable to its process, to subject to its adjudications the rights
of its owners, and this principle will sustain the validity of the
present record. :

Either of these positions seems to us sufficient to support the jurisdiction of the Court, and establish the validity of the record. ;.

Lessee of Boswell and others v. Sharp and others.

1846.

In Bank. READ, J. It is contended on the part of the plaintiffs' Dec. Term,

1. counsel, that the defendants derive no title by the purchase at

judicial sale, because the decree under which the sale was had was void, for want of jurisdiction in the Court pronouncing it:

First: Because the respondents were nonresidents, and the demand personal.

Second: That if the subject matter of the suit lay within the jurisdiction of the Court, the requisite notice by publication was not given to make respondents parties.

Third: That the description of the land in the bill was too vague to constitute it a suit concerning lands, contemplated and authorized by the statute.

The distinction between void and voidable judgments and decrees, is assuming, in the State of Ohio, a very high importance, as affecting titles to lands derived through judicial sales. If the judgment or decree is void, the land itself sold to satisfy it may be recovered back; and such proceeding may be impeached collaterally. The result or consequence, in such case, is precisely as though no such judgment or decree had ever been rendered or pronounced. If the judgment or decree be not void, but simply erroneous, subject to reversal upon writ of error or review, the consequences are wholly different. They must be impeached directly, and cannot be questioned collaterally; and when reversed, the defendant shall have restitution in money against the plaintiff, and purchasers hold the land or property acquired by the sale had under such judgment or decree, undisturbed.

Such, in many instances, has been the rapid and great rise in the value of property in Ohio, from the springing up of towns, and other causes, that property which a few years ago was sold, even at its full value, to satisfy a small debt, would now, if it could be recovered back, constitute a large fortune. The greatest possible efforts will therefore be made to recover the land itself, when the mere reversal of the judgment or decree, and a moneyed restitution, would be scarcely worth the contest. Hence it is not surprising that able and experienced

Lessee of Boswell and others v. Sharp and others.

Dec. Term,

1846.

counsel should, in such cases, put forward the most ingenious In Bank. and subtle arguments, to show that every defect looks directly to the jurisdiction of the Court. We shall adhere to those salutary and long established principles, which have been adopted from right and necessity, to give confidence to the judicial action of the country, and protect those who have made purchases upon the faith of judicial sales.

It is admitted, that if the Court had jurisdiction and authority to pronounce the decree under which defendants derive title, the plaintiff must fail.

It is said, in this case, that the demand was simply personal, and that without service upon the respondents, who reside in another State, the decree was pronounced against them. If this were so, the objection to the jurisdiction would have been well taken ; but the fact that the decree was for money only, does not establish that fact. The Court pronouncing this decree was a Court of general jurisdiction, and it is not disputed but that it had jurisdiction over cases of this sort.

The bill upon which the decree was pronounced, set up that. complainant and respondents had entered into a contract with each other to build a mill, some to furnish money, and some to contribute labor, for which a compensation was to be estimated in money ; and that, finally, on acquiring title to the land, which was, at the time of the contract, in the government, the complainant was to have a certain portion of it; that respondents obtained the title, and refused, in any sense, to comply with the contract; and the complainant sought relief by a specific execution of the contract, and by an account for money more than his share expended, and for improvements put upon the land.

Now, the contract set up in the bill is mixed — a contract for title to real estate, dependent upon the payment of money and the performance of labor, connected with the land and the contemplated improvements. Before the Court could decree a conveyance of the land, it would be necessary to determine whether the complainant had complied with his agreement.

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