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.
