Boswell's Lessee v. Otis
50 U.S. 336 (1850)

Annotate this Case

U.S. Supreme Court

Boswell's Lessee v. Otis, 50 U.S. 9 How. 336 336 (1850)

Boswell's Lessee v. Otis

50 U.S. (9 How.) 336

ON CERTIFICATE OF DIVISION BETWEEN THE JUDGES OF

THE CIRCUIT COURT OF THE UNITED STATES FOR OHIO

Syllabus

The Chancery Act of Ohio of 1824 confers on the court of common pleas general chancery powers. The twelfth section gives jurisdiction over the rights of absent defendants on the publication of notice

"in all cases properly cognizable in courts of equity where either the title to or boundaries of land may come in question or where a suit in chancery becomes necessary in order to obtain the rescission of a contract for the conveyance of land or to compel the specific execution of such contract."

A bill being filed to compel the specific execution of a contract relating to land where the defendants were out of the state, the court passed a money decree and ordered the sale of other lands than those mentioned in the bill.

This decree was void, and no title passed to the purchaser at the sale ordered by the decree.

The act did not authorize such an act of general jurisdiction. A special jurisdiction only was given in rem.

Jurisdiction is acquired in one of two modes -- first as against the person of the defendant by the service of process, or secondly by a procedure against the property of the defendant within the jurisdiction of the court. In the latter case, the defendant is not personally bound by the judgment beyond the property in question.

This was an ejectment brought by Boswell a citizen of Kentucky, against Rodolphus Dickinson and others, tenants in possession, to recover tract number seven in the United States reserve, of two miles square, at Lower Sandusky in the State of Ohio. Dickinson having died, his heirs and representatives were now parties.

Before relating the proceedings in the ejectment, it is proper to notice some other occurrences which were prior in time.

In May, 1825, Thomas L. Hawkins filed a bill in the Sandusky Common Pleas against Thomas E. Boswell William T. Barry, and William Whitimore. The bill stated that all these parties were engaged as partners in building a saw mill upon lot number nine; that they went on with the work until 1823; that he, Hawkins, was a creditor of the concern; that the other parties had obtained a title to two-thirds of the lot and refused to convey any part of it to the complainant. The bill then concludes thus:

"To the end, therefore, that said Boswell Barry, and Whitimore may, under their corporeal oaths, true answers make to all matters herein charged, and on the final hearing of this cause your honors will decree that said defendants convey one-fourth of the said land to which they have obtained

Page 50 U. S. 337

a legal title, and also to account to your orator for the money and time he has expended more than his share on said mill and the improvements of said land, and that notice be given defendants,"

&c.

It being made known that the defendants were nonresidents of the state, but resided in the States of Kentucky and Massachusetts, notice of the pendency of the suit was published in the Western statesman, a newspaper printed at Columbus, Ohio, for the term of nine weeks successively.

At May term, 1826, a decree was passed that the bill should be taken pro confesso, and a master was directed to take an account between the parties, who reported a balance due to Hawkins of $1,844.17.

In July, 1826, the court passed a final decree

"that the complainant do recover of the said defendants the said sum of eighteen hundred forty-four dollars and seventeen cents, and his costs by him in this behalf 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 all the 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 eighteen hundred forty-four dollars and seventeen cents, and the costs to be taxed in this suit, be not paid within thirty days from the date of this decree, upon a praecipe's being filed with the clerk of this Court by the complainant or his solicitor, execution shall issue against the goods, chattels, lands, and tenements of the said defendants, which shall be taken in execution, and sold in like manner as though said execution issued on a judgment rendered in a court of law, and all further proceedings in this cause to be continued until the next term."

Under a pluries fi. fa., lot number seven was sold, and in May, 1832, the sheriff made a deed of it to Sardis Birchard.

We can now return to the ejectment.

In the trial of it, Boswell the plaintiff, produced a patent from the United States for the lot number seven, dated September 2, 1831, and also the following agreement of counsel.

"It is admitted as evidence in this case that the plaintiff's lessor, said Thomas E. Boswell now is and ever since the year A.D. 1818 has been, a resident of the City of Lexington, County of Fayette, and State of Kentucky; that from 1

Page 50 U. S. 338

May, A.D. 1825, up to 1 August, A.D. 1826, he was not within the State of Ohio, and that the premises in controversy in this case are of the value of ten thousand dollars."

"LANE, BUCKLAND & HAYS, Attorneys for Defendants"

"Lower Sandusky, Ohio, August 31, A.D. 1846"

The plaintiff there rested.

The defendants then offered in evidence a certified copy of the record of the proceedings of the Court of Common Pleas of Sandusky County, and also of the sheriff's deed, to the introduction of which as evidence in the case the plaintiff objected.

"And thereupon, by consent of parties, the jury do say that if, in the opinion of the court, the said record and sheriff's deed are by law admissible in evidence, then the said defendants are not guilty of the trespass and ejectment in the declaration mentioned; but if, in the opinion of the court, the said record and sheriff's deed are not admissible as evidence, then the jury say that the defendants are guilty of the trespass and ejectment in the declaration mentioned, and assess the plaintiff's damages at one cent, and thereupon, the arguments of counsel being heard and due deliberation had, the opinions of the judges were divided on the following questions, to-wit:"

"1. Whether or not the proceedings and decree of the said Court of Common Pleas of Sandusky County set forth in said record are coram non judice and void."

"2. Admitting said proceedings and decree to be valid so far as relates to the lands specifically described in the said bill in chancery, whether or not said proceedings and decree are coram non judice and void so far as relates to lot number seven in controversy in this case, and which is not described in said bill in chancery, or in other words whether said proceedings and decree are not in rem, and so void and without effect as to the other lands sold under said decree."

"And thereupon it is ordered that said questions be certified for decision to the next term of the Supreme Court of the United States according to the act of Congress in such case made and provided. "

Page 50 U. S. 346

MR. JUSTICE McLEAN delivered the opinion of the Court.

This case is before us on points certified on which the opinions of the judges of the Circuit Court of the United States for Ohio were opposed.

In 1825, a bill was filed by Thomas L. Hawkins, in the Court of Common Pleas for Sandusky County, Ohio, against Thomas E. Boswell and others which represented that in the year 1816, Boswell of the State of Kentucky, the complainant, Reed, and Owings agreed to build a saw mill on the public land with the view of purchasing the land when sold by the government. Boswell and Owings advanced a part of the money; the complainant was to be the active partner, and his share of the capital was to be paid by labor. That he expended labor and money until the land was sold in 1818 at Wooster, in Ohio, when Reed and Owings abandoned the contract, and it was then agreed by Boswell William T. Barry, of Kentucky, and William Whitimore, of Boston, and the complainant, to go on and purchase lot number nine, or a large part of it, on which the building for the mill had been commenced. The

Page 50 U. S. 347

purchase was made, and it was agreed that the complainant's share of the purchase money should be paid in labor on the mill and in improvements on the land. That he should be the active partner &c.

The complainant proceeded in the construction of the mill and expended for the company the sum of five thousand dollars, of which he advanced two thousand six hundred dollars, besides his own time; that the complainant expected his partners would have conveyed to him one-fourth of the land purchased, they having obtained a legal title to two-thirds of the lot, but that they have refused to do the same or to account and refund him the money expended &c. And the complainant prayed a decree for one-fourth part of the land to which the defendants have obtained a title, and also that they may account &c.

The defendants being nonresidents of Ohio, the court ordered nine weeks' notice to be given in a newspaper, as the statute requires. There being no appearance of the defendants, the bill was taken as confessed and the matter was referred to a master, who reported a balance against them and in favor of the complainant of the sum of eighteen hundred and forty-four dollars and seventeen cents, for which a final decree was entered, and it was adjudged that it should have, from the time of its being pronounced, the operation and effect of a judgment at law and be a lien on all the town lots of the defendants and all other real estate owned by them within the county. And execution was authorized &c. Several executions were issued and a number of lots were sold -- among others, lot number seven, containing seventy-seven acres and seventy-five hundredths, for which the sheriff's deed was executed.

For this lot number seven, an ejectment was brought by Boswell in the circuit court of the United States, and issue being joined, on the trial the following questions were raised, on which the opinions of the judges were opposed.

"1. Whether or not the proceedings and decree of the said Court of Common Pleas of Sandusky County, set forth in the record above stated, are coram non judice."

"2. Admitting said proceedings and decree to be valid so far as relates to the land specifically described in the said bill in chancery, whether or not said proceedings and decree are coram non judice and void so far as relates to lot number seven, in controversy in this case, and which is not described in said bill in chancery, or in other words whether said proceedings and decree are not in rem, and so void and without effect as to the other lands sold under said decree. "

Page 50 U. S. 348

As the title to lot number seven only is involved in the ejectment suit, it is unnecessary to consider the first point certified. Under the decree, which was only for money, many lots were sold by the sheriff that are still held, it is presumed, under his deed; but the holders are not parties to this suit, and it may be decided without affecting their interests.

When the record of a judgment is brought before the court collaterally or otherwise, it is always proper to inquire whether the court rendering the judgment had jurisdiction. Jurisdiction is acquired in one of two modes -- first as against the person of the defendant by the service of process or secondly by a procedure against the property of the defendant within the jurisdiction of the court. In the latter case, the defendant is not personally bound by the judgment beyond the property in question. And it is immaterial whether the proceeding against the property be by an attachment or bill in chancery. It must be substantially a proceeding in rem. A bill for the specific execution of a contract to convey real estate is not strictly a proceeding in rem in ordinary cases, but where such a procedure is authorized by statute, on publication, without personal service of process, it is substantially of that character.

The chancery act of Ohio of 1824 confers on the court of common pleas general chancery powers. In the twelfth section, jurisdiction is given over the rights of absent defendants, on the publication of notice,

"in all cases properly cognizable in courts of equity, where either the title to, or boundaries of, land may come in question or where a suit in chancery becomes necessary in order to obtain the rescission of a contract for the conveyance of land, or to compel the specific execution of such contract."

Under this statute the bill by Hawkins purports to have been filed. But without reference to the other lots sold under the decree, there is no pretense to say that the bill had any relation to the title or boundaries of lot number seven, or to any contract for the conveyance of the same. And it is only in these cases that the act authorizes a chancery proceeding against the land of non-residents by giving public notice. It is a special and limited jurisdiction, and cannot be legally exercised except within the provisions of the statute.

The principle is admitted that where jurisdiction is acquired against the person by the service of process or by a voluntary appearance, a court of general jurisdiction will settle the matter in controversy between the parties. But this principle does not apply to a special jurisdiction authorized by statute, though

Page 50 U. S. 349

exercised by a court of general jurisdiction. The present case will illustrate this view. Admit that a special jurisdiction was acquired against all the other lots, yet number seven was in no way connected with them. It was not named in the bill, nor was there any step taken in relation to it, until it was levied on by the sheriff to satisfy the general decree. It was not within any one of the categories named in the statute. Until long after the decree, the title to it was not obtained by defendants. If it can be made subject to such a procedure, then the special jurisdiction given by the statute is converted, by construction, into a general proceeding against the property of nonresidents by a mere publication of notice.

The property of an individual is subject in a certain sense to the law of the state in which it is situated. It is liable for taxes and to such special proceedings against it as the law shall authorize. An attachment may be laid upon it, and it may be sold in satisfaction of an established claim. And the legislature may perhaps subject other lands to the payment of the judgment on the attachment after the sale of the lands first attached. But no such proceeding is authorized by the act under which this procedure was had. It is limited to the cases enumerated in the statute.

It is said that the statute authorizes a decree for money. This may be admitted. Under the rescission of a contract the money paid may be decreed to be refunded, and the land covered by the contract, being within the special jurisdiction of the court, may be ordered to be sold. But the power of the court is limited to this. Under the assumption of a special power, it cannot be made general by any supposed necessity, beyond the provisions of the act. Such a construction would not only pervert the object of the legislature, but it would sacrifice the property of an individual without notice in fact, and who had no opportunity to make his defense.

The proceedings in this case are a practical commentary upon this construction.

It is said, if this construction of the act be erroneous, it does not make void the proceedings, and that the error can only be corrected by an appellate court. And we are referred to the case of Lessee of Boswell v. Sharp and Leppelman, 15 Ohio 447, in which it is alleged that the Supreme Court of Ohio sustained the decision of the common pleas on the question now before us.

In that case, the supreme court did hold that the Court of Common Pleas of Sandusky had jurisdiction in the chancery proceeding, and that the validity of the same could not be

Page 50 U. S. 350

questioned collaterally. But that decision was made in reference to a part of lot number nine, on which the mill was constructed, and to obtain a title for a part of which the bill was filed. The title to lot number seven was not involved in the case before the supreme court, and, consequently, they did not consider it.

It may be difficult in some cases to draw the line of jurisdiction so as to determine whether the proceedings of a court are void or only erroneous. And in such cases every intendment should be favorable to a purchaser at a judicial sale. But the rights of all parties must be regarded. No principle is more vital to the administration of justice than that no man shall be condemned in his person or property without notice, and an opportunity to make his defense. And every departure from this fundamental rule, by a proceeding in rem, in which a publication of notice is substituted for a service on the party, should be subjected to a strict legal scrutiny. Jurisdiction is not to be assumed and exercised in such cases upon the general ground, that the subject matter of the suit is within the power of the court. This would dispense with the forms of the law, prescribed by the legislature, for the security of absent parties. The inquiry should be, have the requisites of the statute been complied with, so as to subject the property in controversy to the judgment of the court, and is such judgment limited to the property named in the bill. If this cannot be answered in the affirmative, the proceedings of the court beyond their jurisdiction are void.

If this test be applied to the proceedings before us, we think in no just and legal sense can they be held to subject lot number seven to the decree of the court, nor to fix any personal liability on the defendants, and consequently, that the levy and sale of the sheriff were without authority and void, and the second question certified to this Court must be so answered

Order

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Ohio, and on the points or questions on which the judges of the said circuit court were opposed in opinion, and which were certified to this Court for its opinion, agreeably to the act of Congress in such case made and provided, and was argued by counsel. On consideration whereof, it is the opinion of this Court that the proceedings and decree of the Court of Common Pleas of Sandusky County, as set forth in the record, are coram non judice and void, so far as relates to lot number

Page 50 U. S. 351

seven, and consequently that the levy and sale of the sheriff were without authority and void. Whereupon it is now here ordered and adjudged by this Court, that it be so certified to the said circuit court.

Official Supreme Court caselaw is only found in the print version of the United States Reports. Justia caselaw is provided for general informational purposes only, and may not reflect current legal developments, verdicts or settlements. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or information linked to from this site. Please check official sources.