James Robb vs. Lessee of William and James F. Irwin

Hitchcock, J.

From the record in this case it is apparent that there is but one single question for the decision of the Court, and that is, whether the record offered in evidence by the plaintiff in error was a proper and legal item of evidence, taken in connexion with the other testimony in the case, to prove his title to the premises in controversy. The title under which- he claimed was derived from an administrator’s sale, and in order to sustain that sale it became necessary to show that the administrator had power to sell... If the proceedings set forth in the record are legal, the power was conferred. It is admitted that the proceedings were regular, provided the lessors of the defendants in error were parties to them; but it is claimed that they were not parties, inasmuch as it does not appear that they had personal notice of the pendency of the petition. And it not so appearing it is. assumed that, as to them, the proceedings are utterly null and void. This point has been argued at great length, and with much ability, by the gentlemen concerned as counsel, and the exertions which they have made manifest that they consider the question as one of no ordinary importance. And it is one, unquestionably, of the first importance, for no one can tell how many millions of property depend upon its determination.

Under such circumstances it is the duty of the Court to proceed with caution. Although if these proceedings are void we should not hesitate so to decide, still, if they are merely irregular, and the Court in which they were had had jurisdiction, they must be sustained. In truth, the whole matter resolves itself into this question — whether the Court ordering the sale had jurisdiction. If it had, its proceedings and orders cannot be impeached collaterally, however informal they may have been; if it had not jurisdiction, then no matter how technically correct the proceedings may be, they are void.

From the year 1795 to the present time, except for the period from 1805 to 1808, there has been no time but that, in the territory now constituting the State of Ohio, the real estate of a deceased person could, upon failure of personal assets, be appropriated to the payment of his debts, in the regular course of administration. Lands descending are, and ever have been, with the aforesaid exception, chargeable in the hands of the heir with the debts of the ancestor. The only difference as to the mode of disposition between real and personal estate is, that the law makes it the duty of the administrator to inventory, appraise and sell the latter one, while he must have an express order of the court before he can dispose of the other. And this order is granted only upon petition filed by him, showing that such sale is necessary for the payment of debts. Previous to 1824 all that was neccessary was to file the petition and make proof that such sale was necessary. It was an ex parte proceeding. This legislation is characterized by the counsel of the defendant in error as having been “ disgraceful.” Why disgraceful, is not readily perceived. It might be so considered in a country where land is held to be too sacred to be appropriated to the payment of debts ■— where heirs are preferred to creditors — where the ruling principle is, to keep the realty in the family for the sake of continuing hereditary distinctions. But it. cannot be so considered in this State, where the rights of the heir are subordinate to those of the creditor — where lands descend to the heir, charged with the debts of the ancestor — where a man is required to be just before he is generous. Our system requires that the entire property of a man, except such as is exempted from execution, shall be a fund for the payment, of his debts; and under this system I do not see that any particular disgrace could attach to that- legislation which should require all the property, both real and personal, to be appropriated, without judicial proceedings against heirs or legatees. At any rate such seems to have been the policy of the law, and such the opinion of those who legislated for the State previous to 1824.

Let this be as it may, however, whether judicious or not, previous to 1S24, proceedings before the probate court, to procure an order for the sale of a decedent’s lands, were entirely ex parte. Such was the law; and it cannot be questioned but that under that law, upon the filing of the petition, the Court had jurisdiction of the subject matter. It was. a proceeding strictly and purely in rem. It has ever been so considered by. this Court, and we have uniformly held, that where there was a petition and order of sale, such order could not be collaterally impeached; that it was conclusive, notwithstanding any irregularities. And we have so held, not only as a principle of law, but as a principle of policy, believing that the more secure the titles under such sales could be made, the greater, would be the price offered by purchasers. Sales of this description have always béen classed with judicial sales, and, in their examinations, the sarnie principles have been applied to the one as the other. Not only so, but under the law previous to 1824, it was held, that the decision of the Court of Common Pleas was final upon the subject, and could not be reviewed in this.Cour-t, either upon writ of error or certiorari. Such were the principles recognized by the Court in the case of Ludlow’s Heirs v. Johnson, in which it was held, that the propriety of an order made by a court having jurisdiction, could not be collaterally inquired into; 3 Ohio Rep. 553. True, in that case, the Court held the order of sale to be void; but it was not on the ground of irregularity, but upon the ground that the Court had no power to make the order, it being made at a period when there was no law in the State to subject a decedent’s lands to the payment of his debts.

As before stated, previous to 1824, proceedings to subject the real estate of a decedent to sale for the satisfaction of his debt,twere ex parte — were purely and strictly in rem. Nothing further was necessary to give the probate court jurisdiction than to present a petition. How far was a change effected by the law of that year ? The act effecting a change, if any was effected, was the act of 11th February, defining the duties of executors and administrators. By this law, the same principle is recognized as in former enactments upon the same subject, the principle that both the real and personal estate of a decedent are chargeable with his debts, and if it becomes necessary, may be sold for their satisfaction. In this respect, there is no change. The 19th section provides, “ that when the execu- ‘ tors or administrators shall apply to the court, under this act, e for authority to sell the real estate of their testator or intesc tate, the application shall be by petition.” The law was so before. But it is added to which, that is to the petition, “ the ‘ lawful heir, or the person having the next estate of inheritance c of the testator or intestate, shall be made defendant.” This is the only substantial change made in the law, so far as the sale of land is concerned. Now, it is apparent that this law leaves the subject matter of the sale of a decedent’s land just where it was before — within the jurisdiction of the Court of Common Pleas as a court of probate. If before, the proceedings were in rem, they are still so; for, although the law requires the heir to be made a defendant, still there can be no action as against him — no judgment, no decree. The only order which can be made by the Court, operates upon the land alone. It may be condemned to be sold.

This Court have before decided, as before remarked, that under the previous statutes, an order of sale, made by the Court of Common Pleas, acting as a court of probate, could not be reviewed in this Court by writ of error or certiorari. But under the law of 1S24, it was held that the proceedings to procure a sale are so far in the nature of adversary suits, as that they may be reviewed - by certiorari. The Court do not, however, speak of such proceedings as being adversary suits, but say that they are “ somewhat ” in the nature of adversary suits. Ewing v. Hollister, 7 Ohio Rep. pt. II, 138.

Although the law of 1824 requires that the heirs of the testator or intestate shall be made defendants to a petition for the sale of land, yet it does not prescribe the manner in which this shall be done. Defendant’s counsel insist that it cannot be done except by giving them notice. It is not claimed that this notice must of necessity be by service of a summons or subpoena, as in chancery; but it is insisted that it must be notice of some kind brought home to the defendants. I am aware that, in legal proceedings of an adversary nature, it is important that all who are to be affected by a judgment or decree, should first have a day in court; and that, as a general principle, unless a party has had a day in court, the judgment as to him is-void. But I cannot assent to the position, that he who claims under a judgment or decree, must show, affirmatively, that there has- been this day in court. In courts of general jurisdiction, it will be presumed, until the contrary is shown. In the case now under consideration, there were both adult and infant defendants, and there is no controversy as to the adults. They acknowledged service of the petition. A guardian ad litem acknowledged service for the infants.

It seems to me to be unnecessary in this case to go into an investigation of the question, whether infants can be made parties to a suit in chancery, so as to be bound by a decree without personal service, merely by the appointment and appearance of a guardian ad litem. Much is said in the books upon the subject. But I apprehend it will be found, upon examination, that decrees entered under such circumstances are genérally, if not Universally, holden to be voidable,, not void. .. Such, I have no doubt, is the weight of authority. . , 1

But the proceeding now under consideration is not a chancery proceeding. It is ,a proceeding in a court of probate, under a statute law of the State — a proceeding to subject the lands of a deceased person to sale for-the payment of his debts —.a proceeding in rem, although the statute requires that the heirs of such deceased person shall be made parties defendant. It is. not a proceeding, like a suit at.law, to ascertain whether the deceased was or was not indebted. ■ The authority to ascertain this fact is vested in the executor or administrator. The personal representative may liquidate all claims against the estate. It is his duty to do it, unless,such are presented as to him appear to be unjust, and such claims must be. liquidated by arbitration, or by the judgment of a court- of competent jurisdiction. With these things the court of probate,on an application for an order to sell land, have- nothing to do, any further than to ascertain whether there are debts-; whether the personal assets are sufficient to pay those debts; whether it is necessary that all, or any part of the real estate should be sold for their satisfaction. . . . ■.

The statute having prescribed no mode in which heirs should be made defendants, it would seem to follow that the Court, having to act,, must adopt some practice upon the subject, and whatever that practice might be, it should be sustained, unless it would defeat the obvious meaning of the law. It must be a reasonable practice; such an one as would carry out the intention of the Legislature. In different parts of the State different modes of making defendants wére adopted. ., In some parts of the State,( where all or a part of the heirs were infants, and named in the petition as defendants, which it is believed was uniformly done, notice was given to the guardian or near relations of the infants; in other parts, the practice was to appoint guardians ad litem, and such guardians were notified, or appeared without notice, and answered. And, in some cases, service of process was made personally upon the infants. In the case of Ewing v. Hollister, 7 Ohio Rep. 138, part II, a question similar, in many respects, to the one now under consideration was presented to this Court. There is this difference, however, in the two cases: That came up, upon certiorari, to the Court of Common Pleas, to reverse an order of that Court directing the sale of an intestate’s land, for the payment of his debts; while the question in this case arises in an attempt to impeach a similar order, collaterally. Both orders were made under the law of 1824. In the case referred to, the whole subject was carefully considered. The facts of that case were, that but two of four persons, claiming to be heirs, were named as defendants in the petition, all being infants. Notice was not given, personally, to any of the defendants, but was given to the guardians of the two named in the petition, and the guardian of the two who were not named, appeared in Court and acknowledged service. It was objected that this was not sufficient, and for the want of personal service on the infants, it was claimed that the proceeding should be reversed. The Court held that, although some kind of notice was requisite under the statute, the same kind of strictness and technicality was not necessary, as in proceedings in chancery; that the object of notice, so far as infants are concerned, was, that the friends of such infants might have an opportunity to protect their rights; that the notice in the case under consideration, having been given to the guardian, it was sufficient; and the order of sale was affirmed.

It seems, to a majority of the Court, that there was nothing wrong in this — that the case was properly decided; and, further, that it is a case in point to sustain the order which is now under consideration. The service of a subpoena upon an infant is, many times, a mere farce, so far as the infant is concerned; as for instance, where the service is made upon an infant in its mother’s arms. The only effect is, and in truth the only object is, to give notice to the friends of the infant. And although it might not be sufficient to give this notice directly to those friends, in an ordinary chancery proceeding, yet it is sufficient, in a statutory proceeding like the present, where the statute itself makes no provision for notice of any kind. In the case now before the Court, all the heirs of the decedents were made defendants; two of them were adults, and three were infants. Their mother, as well as their father, were dead. The adult heirs had notice — they acknowledge it upon the petition.— Samuel Findlay, a cousin and intimate friend of the family, was appointed guardian ad litem, for the infants, and he, too, acknowledged service. It seems to us that this was sufficient. It might have been more technically correct to have issued a summons, and had the same served personally upon the infants, but as it is, all is substantially right. Does any one suppose that the result would have been different had a summons been issued and served ? I apprehend not. It is not even pretended that the debts due from the estate could have been paid without the sale of the land. It is not pretended that any injustice has been done. But these plaintiffs, at this late period, after the land has been appropriated to the payment of their father’s debts, seek to recover it from those who purchased it in good faith, merely upon the pretence of some technical informality in the order of sale.

The case of Adams v. Jeffries, 12 Ohio Rep. 253, has been cited, by counsel, as sustaining the position assumed by defendants in this case. In that case, one in which the validity of an order for the sale of an intestate’s land was called in question, the order was made, so far as the proofs showed, without any petition filed, service of process or any other proceedings anterior to the order of sale. This order, with the subsequent proceedings, was alone produced. The Court held, that this was not sufficient. The case turned upon the question of jurisdiction, the principle being fully recognized that, if the Court had jurisdiction, the order could not be collaterally impeached for any irregularity. But the Court held further, that under the circumstances, there was nothing to show jurisdiction, and therefore, decided the order to be void; entertaining, as I sup pose, the opinion, that to confer jurisdiction, there must be a petition filed.

Upon full consideration, a majority of the Court are of opinion that the order of sale offered in evidence on the trial of the case in the Court of Common Pleas, and rejected by that Court, could not be collaterally impeached, and that in rejecting that evidence, error intervened. Whether that order could be reversed upon writ of certiorari, is a different question. But even if the question was so presented, we should have no difficulty in sustaining it.

But suppose there was doubt upon the subject, what course would a sense of duty require us to pursue ? The law of 1824 has had its day, and has passed away. It was superseded by the act of 1831. Although the law itself has been repealed, no man can tell the amount and value of real estate which was acquired under its provisions, while in force. Is it desirable that titles, so acquired, should be defeated, or even put in jeopardy ? If not, how is it to be prevented ? Simply by accepting the rule of cotemporaneous construction. And I hold this to be a safe and a sound rule. Where a statute law receives a construction by the judges constituting the judicial tribunals of the State at the time, or where those tribunals adopt a practice under such statute, such construction and such practice becomes a part of the law., All, taken together, constitute a rule of right and of property. Rights are acquired, property is acquired, in the full confidence that while the statute remains unchanged, the construction and the practice under it will remain unchanged. Surely, the propriety of such construction and practice cannot be questioned after a great lapse of time, and after the statute itself has for many years ceased to operate. And even where a statute, which has received a construction, still remains in force, such construction should not be changed unless for the most obvious and powerful reasons. The reason for this rule is most apparent. If the construction is wrong, the legislative power can apply the remedy. And the remedy, so applied, will have but a prospective effect; but if the law or construction of the law is changed by the Court, .such -change strikes.at the foundation of ¿11 rights acquired, under- the previous-construction.- .- .. ■ ■ 1 ,

If is abhorrent to oiny-feélifigs, that the: Legislature,should ’ enact a. law;., which, in its. .operation, divests an individual of-rights with, which-he is: vested ;■ for instance,-.take .the lands.-of one and..vest .thern in another. This Court have-held; thát the: supreme pówer-pf ithe,State cannot..do.-this, and,.that so .far. as.-"-, it is attempted,- suchact. is. void; Good v. Zercher, 42 Ohio. Rep. 364. But, although we deny this power .to the legislative authority, we, in fact; éxercise it ourselves, when; by construction of ancient statutes,[ hte. change the rules [adopted by the • -courts of the1.day,-when those statutes were-.in force. I cannot, consent to do this. We hold that all contracts shall be controlled by the law of the place.where-made, and I would hold . that all transfers of property should be controlled by the law, ;as .understoodand administered when the transfer was made. Any other rule of decision- would • lead to. endless vexation, doubt, uncertainty and confusion.

" The judgment .of the .Court of. Common Pleas is reversed, and the case remanded for further proceedings. .

Read, J.,’

dissenting. I am of .opinion- that notice to the. heirs was necessary to give jurisdiction under the act of 1824, and that no notice was given to the lessors of the plaintiff affording them an .opportunity to resist the application for a sale of their lands. . .

■ A majority of the Court, however, hold that proceedings by administrators to subject lands to the payment of debts .have always been, and .are now, in.rem, and not of an ádversary character; and that- full jurisdiction -is acquired when the petition is presented, so that all the owners of land; whether minors or adults, are bound, although not notified. They further hold that- if notice to the heirs was necessary to sustain the proceedings on certiorari; such notice was given to them in the present case by the appointment of a relative to appear for and defend them, and by the apjpearance of other relatives.

Both these propositions are novel and startling. It is expressly enacted by the act of 1824, under which the proceedings now in question were had, “ that the lawful heir, or the £ person having the next estate of inheritance of the testator, £ or intestate, shall be made defendant.”. This Court, in Ewing v. Hollister, 7 Ohio Rep. 142, pt. II, declare that it was unquestionably the intention of the law that those who were interested in the estate should have an opportunity to show that no necessity existed for the sale of the lands ; and this intention would have been entirely defeated upon any other supposition than that notice should be given. And in Lessee of Ewing v. Higby, 7 Ohio Rep. 201, the language of the Court is, “the ‘ object of the law was that the heirs should have notice of the ‘ application of the administrator for an order to sell their land.” In Adams v. Jeffries, 12 Ohio Rep. 274, the Court say: “ The £ heir has a right to be a party to the proceedings which deprive £ him of his estate, and we are constrained to deny the jurisdic- £ tion of a court which attempts to proceed without him. It £ will be perceived that this opinion affects no proceedings except those since 1824.

It is now said by a majority of the Court that, in this latter case, it was not proved that there was a petition. But the order for sale was put in evidence, and that order mentioned the petition. The Court there refused to presume the jurisdictional fact of notice to the heirs, on the express ground that the proceed ings were those of a court exercising, in this instance, a special and extraordinary jurisdiction conferred by statute, contrary to the course of the common law. The Court specifically decided that an administrator’s sale, made under an order of court since 1824, was void if the heirs were not made parties; and the-proceedings were held to be a nullity on that ground, and not on the ground that there was no petition. . As to similar proceedings before the act of 1824, they were ex parte, but in that year the Legislature, deeming that practice unjust, enacted that the owner of the property should have an opportunity, by resisting the application, to condemn it for alledged debts.

The ancient practice of selling the land in the hands of the heirs, without making them parties, has been complained of by high authority, “as contrary to the plainest principles of justice 4 Kent’s Com. 422; Gibson, C. J., 13 Serg. and Raw. 14. The Legislature of this State having abolished that practice, we have no right to affirm its validity by calling the proceedings since 1824 “in rem,” merely because there is no judgment for costs, to be made a charge on the defendant himself.

The question is not whether land is too sacred to be appropriated to the payment of debts, but whether the rule that the owner of property shall not be deprived of it without his day in court, guarantied by the law, shall be violated..

The administrator is the legal owner of the personal estate of the decedent, but not of the real estate. As the law has cast the ownership of the latter upon the heir, he is entitled to the benefit of the first and most important rule ill the administration of justice, lying at the foundation of all the rest.

And I will add, that even previous to the passage of the act of 1824 the heir was, by legal implication, (see 1 Hill’s N. Y. Rep. 131,) entitled to his day in court, under the statute authorizing a sale of his lands, those statutes not having expressly deprived him of that right. But as he was deprived of it by judicial construction, it was deemed proper to enact positively, that he should be allowed an opportunity to resist the application. And now this enactment is to be nullified by the decision of this Court.

It is said that the authority to ascertain whether the decedent was indebted is vested in the executor or administrator, who may liquidate all claims against the estate; and it is intimated that a court of probate, on an application for án order to sell, has nothing to do with those matters, and yet it is afterwards said (and correctly) that the court is “ to ascertain whether ‘ there are debts — whether the personal assets are sufficient to £ pay those debts — whether it is necessary that all or any part of c the real estate shall be sold for their satisfaction.” The owner of the real estate is deeply interested in all these questions. He may show that the claims are unfounded when- they are sought to be made a chargeupon his property — and the decision of the administrator that they are not unjust, only affects the personal estate.

But it is said, that if before the act of 1824 the proceedings were in rem, they are still so, because the order of the Court operates upon the land alone. According to this opinion.a citizen may- be deprived of his land, or any specific portion of his property, without having a day in court, even although the statute expressly requires that he shall have an opportunity to be heard before his property is condemned. It is ;only nécessary to give a nickname to judicial proceedings to say they are in rem, and the statute law is repealed, and a fundamental right destroyed. According to the opinion just delivered, all proceedings are in rem where the judgment or decree binds only the property in controversy. If that were so, real actions of ejectment, and suits in chancery for the recovery of land, would not be adversary proceedings, except - as regards costs. Real actions, before the statute of Gloucester ■ allowing costs, were, on this hypothesis, not adversary proceedings. The proposition is alike destitute of reason and authority.

It is á cardinal principle in the administration of justice, that no man can be condemned and divested of his rights until he has had an opportunity of being heard; 1 Hill’s N. Y. Rep. 139. And it does not matter whether there is or is not- a,judgment for the costs. U No lawyer will controvert the position, ‘ that to uphold and give validity to the proceedings of a court, e it must have jurisdiction of the person of the defendant and of ‘ the cause. This principle is applicable to all courts, from the ‘ highest to the lowest;" Mills v. Martin, 19 Johns. Rep. 33. “ It is a fundamental principle of justice, essential to every free £ government, that every citizen shall be maintained in the enc joyment of his liberty and property, unless he has forfeited ‘ them by thé,„standing laws of the community, and has had an ‘ opportunity of answering .such charges- as, according to those ‘ laws,.will justify a forfeiture or suspension of them.” Chase v. Hathaway, 14 Mass. Rep. 222.

. That fundamental-principle .is subverted b.y the opinion just delivered, by a majority of this Court.

It is contended by counsel for plaintiff, that the decision in Grignon’s Lessee v. Astor, 2 Howard’s U. S. Rep., is opposed .to the decision in Adams’ Lessee v. Jeffries, 12 Ohio Rep. 274, in which last cas.e it was decided that notice to the heirs was necessary to give the Court jurisdiction.-

I do not so.understand it; and,it-isalso clear, that the definition of proceedings in rem, just pronounced by.a .majority of this Court, is not affirmed by Judge Baldwin in that, case; .for, so far from saying that proceedings-.are in rem, where the judgment or decree is confined-to the condemnation-of-, a specific piece of property, he says, that Where there are adversary par-. ties, the Court must have power over the subject matter and the parties, but-thát, in.Michigan,- the administrator represents the. land, sb that. the petitioner himself being the representative: of the land,, the-subject of the petition,there are noadversary parties• to • the suit.."In-this State,-, the administrator.does not represent the lánd, .and a judgment-against him is not.a lien upon the .lands of the- decedent. Wherever there afe adversa- . ry parties the proceeding is not in rem, and it,is perfectly immaterial whether the judgment binds the whole or only a specific-part of the defendant’s-property. It is manifestly wrong to say that a man’s estate may be snatched from him without giving any.notice, where-a statute requires him to be made .a defendant to the- proceedings. Such- a doctrine cannot be permanently established in a community which has utterly refused to confer absolute power, even on the immediate . representatives of the people. : : , ■

.With regard to what hás been said, as to a cotemporaneous construction of a statute, I must observe, that it is not pre- . tended-that;..under the act of 1824, the heirs are not entitled to notice, . On .the contrary, in Ewing v. Hollister, the Court say : “ Under the act of 1824, I have no doubt that the heir e should have notice. To insert his name in the petition merely, c without permitting him to know of the proceedings, would be ‘ but a mockery.” It is hard to believe that airy Court, in the most benighted part of the State, ever put any other construction upon the statute. That some negligent attornies may have omitted to cite the owners of land, whether adults or minors, is probable, and it is also probable that, in some parts of the State, the profession have supposed that even minors, old enough to nominate their own guardians, need have no day in court in any case in chancery, or under the statute authorizing the sale of lands to pay debts. But, certainly, there has been no such cotemporaneous construction of the- statute as that now suggested. The statute of 1824 has not generally been construed to mean that the heirs need not be mentioned.in the proceedings, or that it was sufficient to name them in the petition. And even if this construction had been put upon the statute by inferior tribunals in some parts of the State, it would not form part of the law of the land. There is not a shadow of pretence for saying that the cotemporaneous construction of the statute has been, that it authorized proceedings without making the owner a defendant. If such a construction had been put upon the statute, adult owners would not have been notified. Yet it is not alledged to have been the practice to omit such a citation of adults, but only that in some parts of the State minors have been allowed in -chancery, and in other cases, no day -in court. The effect of this partial practice is said to be, that wherever it has existed, it is binding; but I cannot perceive on what principle that can be so. Any such opinion is directly opposed to the decision of this Court in the Lessee of Grey v. Askew, 3 Ohio Rep. 479, and to the current of authorities.

The act of 1824 required the owner to be notified, and the question remains, whether a minor is notified at * all by the action of the court appointing some person to defend for him.. In my opinion, this does not amount to a notification of the minor, and, indeed, the question here is not a question whether a reasonable notice has been given. No notice whatever was given, either reasonable or unreasonable. And the Court, taking it upon itself to adjudicate against the minor, does not in such cases pretend to determine that he has been notified;, it goes upon the assumption that it has power to act, where minors are concerned, without giving them any notice. Courts of chancery are not the guardians of minors in this State, whatever may be the case elsewhere; and, clearly, the Court of Common Pleas, acting under the statute authorizing sales of land to pay debts, is not the guardian of minors. The appointment of guardians is vested in the Court of Common Pleas for each county, and it is worthy of observation that a guardian cannot be appointed for a male over fourteen or for a female above twelve years of age, until he or she has been notified to appear and choose his or her guardian. Hence, it is incorrect to say that the only object of notifying a minor of an application to sell his land is to give his friends notice, for that is not the only object when the minor is old enough to nominate his own guardian ad litem. It is to give himself notice. If the minor be too young for that, the citation is designed to give his general guardian or any other person in loco parentis, or the parent, notice.

The Court of Common Pleas was not the guardian of minors, and could not act until it obtained jurisdiction of the persons of the owners, whether minors or adults. The Court did not, by the appointing a guardian ad litem, adopt any practice or mode of notifying the minors, but held that it had jurisdiction without notice. This was a total mistake. The case of Chase v. Hathaway, 14 Mass. 222, and Smith v. Burlingame, 4 Mason’s Rep. 121, are in point. It is also to be observed, that where a court has jurisdiction, by statute or otherwise, to render a judgment or decree against minors, without notifying them or their guardian, the jurisdiction cannot be exercised after the minors have arrived at full age, when the order for sale was made, as were the defendants, they having been also above fourteen when the proceedings were commenced. In Bustard v. Gates, 4 Dana 435, Robertson, C. J., declared, that a man must be a knave or a fool who says that the appointment of a guardian ad litem, for minors, is a notice to them. And it was held in Collard v. Groom, 2 J. J. Marsh. 487, and in Shaeffer v. Gates, 2 Benj. Monroe 455, that minors are not cited at all by such an appointment. It is true that, in Bustard v. Gates, the Court held, that minors are bound without being cited, and that the want of jurisdiction over the person, whether minor or adult, is only error. I am of opinion, that persons not made parties to an adversary judicial proceeding, are not bound by it, and that they are not confined to the remedy of a writ of error. If such were the only remedy, they would lose their property, and merely have a right to pursue a stranger for the purchase money. It is the duty of judges to guard carefully, and, at all hazards, to preserve the citizen’s right to a day in court, before he is deprived of his property, his liberty, or his reputation; and a right so sacred should never be taken away by implication or construction, when it can possibly be avoided.

This Court asserted, in the Lessee of Good v. Zercher, 12 Ohio Rep. 367, “ that it is the principle object of our political £ organization to secure each individual in the enjoyment of his £ natural rights; and the chief glory of every citizen, however ‘ humble or weak, to feel, in the omnipotence of constitutional £ protection, that there is no power under God that can deprive £ him of his property or his rights. That the government itself £ under which he lives is less than the individual man, except as £ it acts within the legitimate sphere prescribed by the people £ wh omade it.”

It is said, Ewing v. Hollister is a case in point to sustain this - order of sale. No distinction is noted between the appearance of the general guardian for minors, representing their persons and estates, and a mere guardian ad litem, appointed by a court having no jurisdiction over the person sought to be affected. That case affirms the necessity of reasonable notice to the minors, , and it is conceded that a notice in itself utterly unreasonable is nugatory. The case therefore is,- in point, against the order of sale. . .

Under the circumstances presented in the present case, it was necessary to serve a notice upon the minors themselves, according to the ordinary mode of serving process; for it is not shown that they had any guardian, and they were old enough to nominate their own guardian ad litem. I find that whomever a great principle is allowed to be broken in upon, there is no limit to the aggression.

So far from having been generally held as stated in the opinion just pronounced, that decrees in chancery against minors, without giving them notice, are valid, not a single case can be found to that effect, unless the court in chancery was itself the guardian of the minors. It is true, plaintiff’s counsel refer to an unreported decision of Judge McLean, on the circuit, to the effect that jurisdiction is to be presumed; and it is said, Judge McLean expressed his opinion to be, that the want of a citation of a minor in a chancery case was only error. That opinion is opposed to Judge Story’s decision, in 4 Mason 121, and to the whole current of authorities. As to proceedings in common law and other courts, which do not pretend to be the guardians of minors, the proposition that they can divest minors of their property in adversary proceedings, without giving them a day in court, is a plain outrage upon common sense.

If the Court of Common Pleas had adopted a practice of notifying minors in any particular .manner, that practice must have been such as to afford the heir a fair opportunity to contest the application; Ewing v. Hollister. A practice to contravene the law of the land, and give no notice, cannot be sanctioned. No court was ever absurd enough to suppose that it was citing minors, by appointing a person to defend for them. It is said, that in the present case, a brother, and a sister, and a cousin of the defendants, had notice of’ the proceedings, and that their mother was dead. There is no evidence to show whether the minors had guardians, but the record purports to set out what the notification was; and it does not appear that the minors were cited in any mode whatever, either by a notice left at their residence or otherwise.

It is contended by counsel, that a citation of the heirs should be presumed, in support of the order of sale. This Court decided, in Adams v. Jeffries, 12 Ohio Rep. 274, that no such presumption could be raised. When a common law judgment is produced, the previous proceedings are presumed; but the presumption may be rebutted, and the want of process may often be shown by production of the full record. Thus, if the record is required by statute to set forth the process, and the exemplification of it, when produced, contains no allegation that process was issued, it cannot be presumed that there is an omission from the record of what the statute requires to be inserted.

It has also been said, that if a summons had been issued and served on the minors, the result would have been the same; that it is not pretended any injustice has been done. I have no means of judging whether the result would have been the same; but I find that the counsel for the defendants insist that, if they had been cited, they might have shown that the debts, alledged to be due, were not charges on their estate; that there might have been a new or different appraisement, more competition at the sale, or that the confirmation might have been successfully resisted. Whether any injustice was actually done, we have no means of ascertaining; and if evidence had been offered at the trial to that effect, by the defendants, it must have been rejected by the Court below as irrelevant. The purchaser at the administrator’s sale had nothing at all to do with that matter, but, on the contrary, had only to inquire whether the Court had acquired, and had exercised jurisdiction.

We are informed that, in some parts of the State, it was formerly the practice to give notice to the guardian or near relatives of minors; that, in other parts, service of process was made personally upon minors, and that, in other parts, no notice at all was given. This is said to have been the. practice in chancery, and upon petitions, by administrators, for orders of sale. And we are told that, .where it was the practice for some time to give no notice to. the owners of .the land, such owners were bound, although, in-the next county, it may have been the practice to serve a writ of summons. I deny; altogether, that the sacred right to a day in Court can be destroyed upon any such pretext.

Arguments are constantly being- addressed to the Court, as if it had absolute power to divest the title of minors, married women and absentees, because -their claims are numerous, and tend to disturb the quiet of ancient trespassers and negligent purchasers. The Legislature having refused to . aid the parties, by limiting the period for prosecuting ejectments, &c., an appeal is made from the Legislature to the Court, and, on grounds of public policy, it is called upon to declare that minors have no right to a day in Court; that -any man’s property may be taken from him ’ by judicial proceedings, of which he had no notice; that deeds executed by married women, not proved to have, had the protection which the law required, are valid.

We have denied the power of the Legislature to pass curative laws, divesting the titles of those who have made no contracts to part with their property-;and I must refuse to this Court the power to do more, in that respect, than the direct representatives of. the people. The Legislature may enact statutes of limitation for the protection of ancient estates, but we can enact- nothing, our sole function being to administer the law according to its letter and its spirit. No court has the power to set at nought the statute law, or the eternal principles of right and justice, for the preservation of property, unlawfully acquired. It cannot therefore affirm the validity of adversary proceedings, condemning the property of those who have had no day in Court. Unless we substitute erroneous practice for legal principles, and by the blunders of courts supplant the constitution, the judgment in this case below must be affirmed.