Heighway v. Pendleton. IN BANK. The conveyance, by the sheriff, of lands sold on such judgment, in 1811, and acknowlDec. Term, edged before a justice of the peace, was sufficient to pass the title to the purchaser. It is too late to object to the judgment, because the mortgage on which it is founded is defectively executed, after such judgment is revived. 1846. When the condition of the mortgage is broken as between the parties, the title to the mortgage premises vests in the mortgagee and remains in him until satisfaction. If the mortgage be satisfied and released by compromise between the parties or their representatives, the transaction is entire, and the consideration for the release cannot be avoided without avoiding the release also. In 1806, an equity of redemption, in mortgaged premises, was not a chattel real, defendible to the heir, but a personal chattel, to be controlled by the administratrix. THIS is an ACTION OF EJECTMENT, reserved from the County of HAMILTON, on a motion for a new trial. The facts in the case will be found sufficiently stated in the opinion of the Court. Hart, Corry & Russell, and T. Ewing, for the Plaintiff, made the following points: 1. Conveyance by Married Women.- Acknowledgment. The certificate must show that the married woman, upon a separate examination, acknowledged the facts necessary to the validity of the deed. When the certificate does not show that one of the grantors is a married woman, but merely states that "Susan M, John H, and Eliza A. H," severally acknowledged the indenture to be their voluntary act, for the uses, &c., there is no ground whatever for presuming that there was a separate examination of one of the parties as a married woman, and a due acknowledgment of the facts necessary to the validity of the deed. It cannot be presumed, even, that the justice knew that one of the parties was a married woman, for the justice examines the contents of the deed only, when he takes the acknowledgment of a married woman, as such. 2. Statute of Limitations. A conveyance in fee simple by the husband of his wife's lands passes an estate for their joint lives. The possession of the grantee is not adverse, but Heighway v. Pendleton. lawful, and the wife's right of action does not accrue until after IN Bank. her husband's death.. Adverse possession is never presumed. Title, by adverse possession, is confined to that which is actually possessed, where there are several distinct lots. It is not presumed that a mortgagee is in possession, and that his possession is under a title adverse to that of the mortgagor. Even if the grantee had held adverse possession before such conveyance, the right of action being destroyed or suspended. thereby, during the coverture, the statute of limitations would begin to run after the husband's death. Possession by the authority or with the assent of the husband, is rightful, not ad verse. 3. Ordinance of 1787.- Legislative Power of the Governor and Judges.-The Governor and Judges could not adopt a law enacting that the owner of land mortgaged before such adoption, should be deprived of his estate by a judicial proceeding against another person. That would not be "a judicial proceeding according to the course of the common law," within the meaning of the ordinance, Article 2; for in such proceeding, the party to be affected has his day in court. 4. Statute. Unconstitutionality. — Mortgaged lands descended to the heir in the year 1806, when there was no law in force authorizing the summary seizure and sale thereof, the Legislature could not afterwards enact that the estate should be divested by means of (so called) judicial proceedings, carried on between third persons. But the Legislature might declare the effect of mortgage deeds to be made in future, and authorize a foreclosure without notice to the mortgagor. 5. Legislative Enactment-Construction of. An act should not be construed so as to give it a retrospective operation when that can be avoided. An act should not be construed in such a way as to make it unconstitutional, if it will reasonably admit of a contrary interpretation. Dec. Term, 1846. IN BANK. Dec. Term, 1846. Heighway v. Pendleton. If the words of a statute are ambiguous, that construction should be put upon them which will make the statute conformable to legal principles, and préserve existing rights. A law was adopted by the Governor and Judges of the Northwest Territory, providing for the satisfaction of mortgages theretofore as well as thereafter made. It required process, by writ of scire facias, against "the mortgagor or mortgagors, his, her, or their heirs, executors, or administrators, that he or they be or appear," &c. The proper construction of this law is, that a writ of scire facias is to go either against the heir, executor, or administrator of the mortgagor, according to the nature of the estate mortgaged; if the land is freehold, the writ must go against the owner (the heir,)-if it be leasehold, it must go against the executor or administrator, he being the legal owner. The law should not be construed to mean that the mortgagee may cause the process to be issued against either the heir, executor, or administrator, according to his own mére whim and caprice, without any regard to the tenure and ownership of the property mortgaged. This latter construction would violate the rules above stated, and would make the law unconstitutional when applied to mortgages executed before its adoption. But when an act similar in other respects, was prospective only in its operation, and authorized the rendition of a judg ment affecting the personal estate in the hands of the executor, as a debt of record, as well as the mortgaged lands belonging to the heir, it has been held, (8 Ohio Rep. 45,) that the citation of either party was a compliance with the law. 6. Jurisdiction over the Person-When presumed.-The service of process on the owner of the land cannot be presumed, when she is not named as a defendant in the proceedings; but the writ being produced, is found to have been issued against and served upon another person. 7. Judgment against an Administrator — Its effect.When a legislative enactment confers upon a court the power Heighway v. Pendleton. Dec. Term, 1846. of summarily seizing and disposing of the lands of a citizen, IN Bank. without giving him a day in court, the judgment must be such as the enactment authorizes, or it cannot be made available against a stranger to the proceedings. Therefore, a judgment rendered against an administratrix, adjudging her to pay a debt, and directing execution therefor, cannot be produced in evidence against another person, the owner of mortgaged land, as a judgment that the plaintiff shall have execution upon the mortgaged premises. A fortiori, the judgment cannot be so produced in evidence by the party obtaining it and those claiming under him. Even a judgment, erroneous only and not void, cannot be used in evidence against a stranger; he may defeat the judgment by plea, it is his only remedy. 8. Writ of Execution, Levy and Sale-Validity of.When a legislative enactment confers upon a court the power of summarily seizing and disposing of the lands of a citizen, without giving him a day in court, the writ of execution must be such as the enactment authorizes, or it is unavailing against a stranger to the proceedings. Therefore, a writ of execution upon all the goods and lands formerly belonging to a deceased person, cannot be produced in evidence against a stranger to the proceedings, as an execution authorized by such last mentioned enactment, to be levied upon lands included in a particular mortgage deed. A levy, under said writ, of a part of the mortgaged land, and a sale thereof for part of the debt, leaving the remainder unpaid, is not a levy and sale under the special statutory power above referred to. The rule that ancient judicial proceedings are to be regarded with favor, does not apply where no possession is founded upon them. Nor should it be applied at all to ex parte proceedings, they are not favored by courts of justice. Such levy and sale are not valid under the general execution law, authorizing the levy upon and sale of the lands of the defendant in an action. In this case, lands not belonging to the defendant were levied upon and sold. IN BANK. Dec. Term, 1846. Heighway v. Pendleton. Besides, the general execution law forbade a sale at less than two-thirds of the appraised value. It was not intended to apply this restriction to mortgages taken under the old laws, with the right to subject the property to sale for what it would bring. Hence the act of 1807, reviving the old scire facias laws, enacts that the mortgage money shall be recoverable under the laws in force when the mortgage was executed. 9. Evidence.—Proof of sale by Sheriff, and of his authority to sell. The sale to the grantee must be proved, either by the sheriff's return, or by other competent evidence. A recital in the sheriff's deed, that he had sold to A B, is not evidence, unless the deed is acknowledged in open court, or the conveyance is approved of and confirmed by the court having specific authority to revise the proceedings after the judgment. A sale to the sheriff's grantee may be presumed, if he has obtained and held possession under the deed; but when that is not the case, and the deed is produced in evidence against a stranger to the proceedings, no such presumption arises. In the latter case, the party setting up the proceedings should be held to strict proof. Therefore, when the sheriff's deed recites as the authority for the conveyance, one judgment rendered by the Court of Common Pleas, in December term, 1810, and the proof relied on is two judgments rendered in April term, 1808, the proof of the sheriff's authority is insufficient. Nor will it be made sufficient by evidence that no other suits were brought in the Court of Common Pleas, if the sheriff could have derived authority from a judgment of the date recited in another court in the same county. A mistake in the description of the court may be presumed, instead of three mistakes as to the number of judgments, the year, and the term. 10. Sheriff's Deed.- Acknowledgment in open Court.A law authorized the sale of mortgaged lands on a special execution, and directed them to be "conveyed to the buyer or buyers thereof, ** in manner and form as is herein above |