Heighway v. Pendleton. Dec. Term, 1846. Upon the settlement, in 1827, Jesse Hunt executed a deed IN BANK. of release of the estate of John Mercer "from any further liability for or on account of any existing claims, &c." In 1820, Jesse Hunt conveyed the property in question to his son, George N. Hunt, under whom the defendants claim as devisees. The property has been improved, and the lessor of the plaintiff set up no claim to it after the death of her husband, but has spoken of it as belonging to the defendants, and has so described it in transactions with third persons; and she assumed the absolute ownership of that part of the mortgaged property which Jesse Hunt conveyed to Susan Mercer in 1815. Two principal propositions are made by counsel on behalf of the defendants: 1st. That the scire facias proceedings against Susan Mercer are sufficient to divest the title of her daughter; and 2d. That the mortgages constitute a sufficient defence to this action. Various other defences are set up, which I will dispose of before considering the great questions referred to. The statute of limitations is relied upon; and it is also said the lessor of the plaintiff is estopped from claiming the property by her acquiescence in what was done during her coverture, and by her not disturbing the possession of the defendants for many years. Plaintiff's right of action accrued on the death of her husband. Up to that time, the possession of the defendant's ancestor was lawfully held under the deed of 1815, which passed. an estate for the joint lives of John Heighway and his wife. As to the alledged estoppel in pais, it is not pretended that the plaintiff has concealed any facts from the knowledge of the defendants. They cannot acquire any title by reason of her ignorance of her rights, or by her failure to prosecute her action at an earlier period. What was done by her mother and husband did not bind her. It is also contended by defendants, that plaintiff is estopped by a decree in chancery rendered during her coverture, whereby the bill filed by her mother and husband, charging fraud in Dec. Term, 1846. Heighway v. Pendleton. IN BANK. the procurement of the compromise deed of 1815, was dismissed. Other matters are charged in the bill, but as the complainants were bound by the deed of 1815, not having succeeded in their attack upon it, such other matters could not be gone into. This decree is no estoppel. It is also contended, that circumstances may amount to a redelivery of a deed, and it is assumed that a void deed, executed by a married woman, will pass the legal title if she, after the coverture has ceased, redelivers the deed. That may be so in England, where the mere delivery of a deed conveying land is sufficient to pass the title, although there be no signature, attesting witnesses or acknowledgment. But it is not so in this State. I am of opinion, that on the decease of John Mercer, his estate descended to the plaintiff, under the statute of descents of 1805; Chase's Stat. 515. It did not become vested in the administratrix either at common law or by any statute of this State. An administrator does not take any estate whatever, either of a legal or equitable nature. Such an estate is altogether dissimilar from a chattel interest. The administratrix could not convey this estate, and she did not profess to do so as administratrix, when she executed the deed of 1815. The proceedings had against the administratrix do not, in my opinion, divest the title of the daughter. The judgments and executions are founded upon the erroneous supposition that all the lands and other property of the decedent could be levied upon and sold under and by virtue of judgments against the administratrix. Under such an erroneous opinion, a general judgment against the administratrix and a general execution would be preferred to a judgment upon proceedings against the heir, subjecting only the mortgaged lands to levy and sale. Hence, in the present case, common judgments were obtained against the administratrix, followed by ordinary executions against all the property, real and personal, and a sheriff's deed under the law regulating common judgments and executions. Heighway v. Pendleton. Dec. Term 1846. This Court has decided such proceedings to be void, so far as IN BANK. the lands of the decedent are concerned; Lessee of Grey v. Askew, 3 Ohio Rep. 484. In consequence of that decision, the proceedings are, by a mere afterthought, claimed to be under the law of 1795. The executions were respectively levied upon parts of the mortgaged lands, and sold, in each case, for part of the debt, as upon common judgments and executions for debt, without any regard to the mortgages. And the judgments were revived as common judgments and executions for debt, without any regard to the mortgages, for the purposes of recovering the balance of the debt, unsatisfied by the sales. Jesse and A. Hunt preferred ordinary judgments in debt with general executions, and it will not do now to produce these proceedings as special judgments and executions under the law of 1795. The law of 1795, adopted by the governor and judges, (Chase's Stat. 138,) authorizes a writ of scire facias to be issued against "the mortgagors and mortgagees, his, her or their heirs, executors and administrators." Judgment was to be rendered condemning the mortgaged property to be sold, and nothing more; the judgment was not available for the recovery of the unsatisfied balance. The sheriff was to convey the property to the purchaser by deed, "acknowledged in open Court." The design of the last provision was to secure the previous examination of the proceedings and the confirmation or disallowance of the sale. Roads v. Symmes, 1 Ohio Rep. 315. The law of 1795 authorized the proceedings on scire facias to be had upon mortgages executed before as well as after the adoption of the law. An act passed by the Territorial Legislature of 1802, (Chase's Stat. 346,) authorized the writ of scire facias on mortgages, and the sheriff was to make a deed in the ordinary manner. If the mortgaged premises were not sufficient to satisfy the debt, the remainder was to be a debt of record, upon which the plaintiff might issue a scire facias and proceed to judgment and execution as in other cases. IN BANK. Dec. Term, 1846 Heighway v. Pendleton. This act was repealed by the act of 1805, (Chase's Stat. 496,) which confines scire facias proceedings on mortgages to those executed after its passage. Another act, passed in 1805, (Chase's Stat. 517,) repealed the law of 1795; and when the estate descended to the lessor of plaintiff, in 1806, no summary proceedings by scire facias could be resorted to for the recovery of the mortgage money. But in January, 1807, an act was passed, (Chase's Stat. 559,) enacting that all money secured by mortgage executed prior to the act of 1805, "be and the same is hereby made recoverable ' in the same manner that money secured by mortgage was made ' recoverable by the law in force at the time such mortgage was 'executed." It is argued by the counsel for the defendants, that under these laws it was unnecessary for the owner of the mortgaged property to have his day in court, and that the true meaning of the act of 1807 is, that the judgment might be obtained under the law of 1795, and the subsequent proceedings had under the general execution law, which authorizes the sale of all the property of the defendant, &c., on action, real or personal, and a conveyance by the sheriff, without a previous examination of his proceedings. On the contrary, it appears to me that no other execution could be issued upon a judgment under the law of 1795, than an execution upon the mortgaged property; and that the only authority conferred upon the sheriff was, by virtue of that law, revived for the purpose by the act of 1807. It is absurd to suppose that a special judgment, had under the act of 1795, condemning the mortgaged land, would authorize a general execution against all the property of the decedent. The general execution law was inapplicable for another reason; it did not authorize a levy upon the lands of the decedent, but only upon the lands "of the defendant;" and the only defendant was the administratrix. This point is settled by the decision of this Court in Lessee of Grey v. Askew, 3 Ohio Rep. 484. Heighway v. Pendleton. Dec. Term, 1846. The Legislature intended to require the mortgaged lands to IN BANK. be sold and conveyed, according to the law in force when the mortgage was executed. It was not intended to apply subsequent execution laws, which forbid a sale except at two-thirds of the appraised value. The Legislature intended to avoid that retroactive legislation, which has recently been condemned by the Supreme Court in Bronson v. McKenzie, 1 Howard Rep. 311. The policy of our statute law, on this subject, is explained in Lessee of Allen v. Parish, 3 Ohio Rep. 189. As the judgment, levy, and sale, authorized by the act of 1807, must have been in accordance with the law in force when the mortgage was executed, it follows that the sale must have been perfected as required by that law, and the proceedings under it must have been examined and confirmed by the Court, as directed by its positive provisions. In other words, the deed must have been acknowledged in Court. I am therefore of opinion, that the judgments, executions, and sales, and the sheriff's deed, were inoperative in the present case. Other objections are urged by plaintiff's counsel to sheriff's deed, on which it is unnecessary to give an opinion. I hold the first objection taken to the judicial proceedings to be fatal. The owner of the property had no day in Court. She would have been entitled to that right in proceedings had under the law of 1795, and no other proceedings could be of any avail. It is said that this Court has decided otherwise in Biggerstaff v. Loveland, 8 Ohio Rep. 44. I do not so understand that case. It was under the act of 1810, (Chase's Stat. 645,) and it was founded expressly upon the peculiar provisions of that act, provisions which are not to be found in the law of 1795. The Court say, page 45, "as a general rule, none but parties and privies are bound by a judgment; and upon ordinary judgments against personal representatives, the 'lands of decedents cannot be seized in execution. Still there can be no doubt that it would be competent for the Legislature to change the rule of law." The rule of law could not be changed by retrospective legislation. Now, the act of 1810 is prospective only; it is confined to mortgages executed after |