A A = AS 0^ oa - -- jo ] o^ " :c 7 = 4 m ^= 5 . ^ 1 — — 3> SI — ' ( — 5 S 4 H 3J 1 5 B 3 m •i — — — -< 9 ....■ ■1 < ill : I iiii i ' BB 1I l II III: 1 11 II ' ! P ill §; a Bill 1 I ■11 111! , « •ill! 1 11 :, fl!lllllil>ll i ilfflfflfflwal' ill 111 1 III m UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY Judicial Conveyance OF Real Estate Being the Law and Procedure in Ohio Whereby Under Order of Court Real Estate is Sold and Title Thereto Confirmed and Transferred WITH FORMS By WELLINGTON LEE MERWINE (Of the Columbus, Ohio, Bar) Cincinnati THE W. H. ANDERSON COMPANY Law Book Publishers 1910 / M <*$% llio J Copyright, 1910 THE W. H. ANDERSON COMPANY, Cincinnati, 0.' To my sister, lEtfir SClttte Msrmxm, the skillful stenographer ana court reporter, whose most valuable assistance made its pro- duction possible, this volume is dedicated. PREFACE The author, as a practicing attorney and an examiner of real estate titles, long felt the need of a text-book in which he could find, under any of the subjects treated in the twenty-one chapters herein set forth, all of the pro- cedure connected therewith. To illustrate : In the subject of sale of an entailed estate by order of court, the prac- ticing attorney could find a form for the petition in the books on Code Pleading, and he could find the form for the orders and decrees of the court; but when lie at- tempted to find, in the books, a connected chain of the procedure, leading in successive steps in logical order from the first paper filed in the case to the delivery of the deed, he failed to find such a treatise. The author experi- enced the same difficulty when examining title to real estate which passed through the courts. This work is the result of the author's many years of experience in the practice of his profession and in the investigation of real estate titles. It is a practice book for which the busy prac- titioner will find use every day; it is one book containing the twenty-one subjects heretofore found here and there in a number of books. The works on pleading and jour- nal entries in this State, in a measure, have furnished tools for the busy lawyer; yet heretofore he has found scattered here and there in many volumes, what he has now here at hand in one. Aside from this, a large part of the text herein and much of the procedure in the v vi PREFACE. chapters of this volume can not be found in any of the text -hooks. It is a hand-book for everyday use for the practitioner as well as the examiner of real estate titles. It will serve, we trust, the purpose for which it has been written, and it will thus, in a measure, be of some compensation to the author for the painstaking labor required to pro- dun • it. Wellington Lee Merwine. Columbus, Ohio, June 1, 1910. TABLE OF CONTENTS. CHAPTER I. Procedure by Which a Court Acquires Power to Transfer Real Estate From One Person to Another, section page 1. Preliminary statement 2 2. What the petition should contain 3 3. Requirement as to caption of the petition 3 4. The manner in which the action to sell real estate is begun. ... 3 5. The necessity of service of summons or entry of an appearance in the action 4 6. Requirement as to precipe 4 7. The summons and what it must contain, and by whom served. ... 4 8. When the summons may issue to another county 6 9. Where the action must he brought 6 10. Local and transitory actions 11 11. When the action may be brought where a part of the property is situated 1 1 12. Where the action for specific performance of a contract of a sale of real estate must be brought 12 13. When the action should be brought in the county where the cause of action arose 12 14. Where actions other than those mentioned in Gen'l Code, § 11268 (R. S. § 5019) to Gen'l Code, § 11272 (R. S. § 5023) must be brought 12 15. Venue as to railroads and stage companies 14 16. Venue as to turnpike company 14 17. Venue prescribed by charter of corporation 14 18. Where actions against non-residents may be brought 14 19. General rule as to where all other actions must be brought.... 17 20. How change of venue secured 18 21. Change of venue in suit by or against a corporation 18 22. Summons may not be served on an attorney while in another county on professional business only 19 23. In what cases persons may not be summoned 19 24. At what time summons is returnable .' 19 25. Issuance of alias writs -0 26. By whom service of summons may be made 21 27. What parties are hound by the return 21 28. The manner in which summons is served 22 vii viii TABLE OF CONTENTS. SECTION PAGE 29. .Service of partners in attachment — Replevin 23 30. What is equivalent to service of summons 23 31. How service of summons may be set aside 24 32. How service of the writ is made on a corporation 25 33. What the return of service must show 26 34. What is meant by managing agent 27 35. Service of summons upon joint stock companies 28 36. How insurance company served 28 37. When the service may be had upon the managing agent 29 38. Service of summons upon a minor 29 39. Conduct of the defense for and on behalf of an infant 30 40. The nature of the services of a guardian ad litem 31 41. The defense of an infant by guardian ad litem should be a real defense 31 42. Rights of infants reserved in judgment, how 33 43. Power of guardian to act for ward in partition proceedings. ... 34 44. Guardian ad litem in sale of real estate by guardian 34 4.">. Guardian ad litem — Sale of real estate by an administrator to pay debts 34 46. Service of summons by publication 35 47. When and in what actions service by publication may be made. 35 48. Service of publication in attachment 38 49. A finding of notice by publication not subject to collateral attack 38 50. Affidavit required before publication is made 39 51. How the publication must be made 39 52. When the service by publication is complete 40 .">:{. When solvit f copy of petition may be made out of the estate. 41 ."> f. How publication made against an unknown heir 41 55. Manner of Bervice where two or more defendants are jointly liable 41 66. Lis i" "'/' ns 42 57. Lis pendens as to suits in other counties 42 < HAPTER II. Tin. Law ami Pbocedtjbe ra Sale of Real Estate Under Judgments, Obdebs of Sale \\i> Executions. What Is a judgment and what an order 46 The judgment mus1 be confined to the issues 48 Judgments withoul jurisdiction of parties or subject matter ifl void 4!) II. Judgments cannot be collaterally attacked 51 62. A judgment of the court as between the parties is final 52 The effect <>f court's Bnding of facts giving it power to enter judgment 53 • ■ oidable and % < > 1 < 1 judgment 54 rule caveat emptor applies to purchasers at judicial sale.. 56 TABLE OF CONTENTS. IX SECTION PAGE 66. Effect of sales made under a void and voidable judgment and decree 57 67. Purchasers at judicial sale protected by the recording statute.. 57 68. Judgments may be vacated during the term, when 58 69. Judgments may be vacated after term, when 59 70. Effect on purchaser's title at judicial sale when judgment or decree reversed and set aside til 71. Remedy of purchase at sale on execution, if the sale is invalid. . 02 72. Not necessary to reserve rights of infants in a judgment to be entered against them (53 73. Bona fide purchaser not affected by the preceding section 63 74. Manner in which a dormant judgment may be revived 04 75. The limitation as to revivor of judgment 04 76. New parties to judgment and revivor of judgment when a party dies — Judgment in circuit court remanded to common pleas for execution — How revived after death 05 77. Judgments against parties, and against defendants at different times 65 78. A judgment will operate as a conveyance, when 66 79. How judgment entered against a married woman 66 80. All judgments must be entered by clerk in conformity to verdict. 66 81. When the court to order what judgment to be entered on verdict. 07 82. When judgment may be entered against the verdict 67 83. All judgments must be entered in the journal 07 84. Complete record of case to be made, unless waived 08 85. When record is to be made and signed 68 $6. Of what the complete record shall consist 6S 87. Court to cause record to be completed in certain cases 08 88. What index is required for judgments 69 89. The precipe for an execution 69 90. The execution — Nature and kinds thereof 69 91. The kinds of executions 70 92. What property subject to levy and sale 71 93. Partnership property levied on, how 73 94. When liens of a judgment attach to lands 74 95. Lien of judgment of supreme court — Lien of judgment of the common pleas court in cases removed to supreme court. ... 70 96. Lien of transcripts of justices and mayors by filing of tran- scripts with the clerk of common pleas 77 97. The lien of such judgment 77 98. Executions upon transcripts of judgments of justices filed by the clerk of the courts of common pleas, and sales thereunder. 7S 99. When a judgment execution becomes dormant and ceases to be a lien 78 100. The writ of execution; its command, and how sales made there- under — Execution operates against a partnership, how.... 79 101. In what cases no preference given to execution 80 102. Goods and chattels to be first taken; for want thereof, lands to be levied upon 81 X TABLE OF CONTENTS. SECTION PAGE 103. Lands must be appraised by freeholders before sale 81 104. Appraisers can not be purchasers 82 105. The appraisement must be made upon actual view 82 106. Parol evidence may be introduced to show mistake in an ap- praisement and the appraisement may be set aside, when . . 82 107. What must be included in the appraisement 84 108. When real estate may be sold without valuation 85 109. The lien of a judgment restricted to two-thirds of the appraised value of the lands levied on 85 110. Lands can not be sold for less than two-thirds of the appraise- ment—Except as to enforcement of a junior lien — Court may determine minimum amount for which real estate may be sold 86 111. Persons occupying trust relations can not bid at their own sales.. 86 112. Purchasers making unsatisfactory bid to pay additional sum to satisfy costs and allowances 87 113. Requirement as to advertisement of sale cf land under order of court — Requirement as to description or location of property 87 114. Requirements as to publication of sale of real estate S8 115. Publication of notice of sale in newspapers other than those printed in the English language 80 116. The return of the writ by the sheriff" and the record thereof. ... 90 117. Purchaser failing to pay punished for contempt 90 118. Confirmation of sale — Order for deed — Officer may retain pur- chase money until sale confirmed 01 119. Right of judgment debtor to redeem at any time prior to con- firmation 92 120. When master commissioner may convey real estate 92 121. When sheriff may act as and for master commissioner 93 122. The recitals required in a deed of a sheriff or master commis- sioner 93 123. The effect of a deed made by a sheriff or master commissioner. . 94 124. Printer's fee for publication of sale may be required in advance 04 125. Where sales of real estate are required to take place — Alias execution against lands, issued, when 95 126. Proceedings when creditors direct separate levies to be made on separate parcels of land 93 127. Successor to sheriff may make deeds for lands sold by predecessor 96 12S. Ki^hts of party, when property not subject to execution is sold. . 96 120. Relief of officer who levies upon and sells wrong property in good faith 07 130. Remedy when one of tl -sureties pays for such property.... 07 1.". I. When judgment loses preference as a lien — Lien of supreme and circuit court judgments — How Long to continue 97 132. When new appraisement for sale of real estate on execution may he ma de 08 133. New appraisement and terms of sale of mortgaged premises.... 0!) 134. When execution to !*• returned 00 TABLE OP CONTENTS. XI PAGE SECTION 135. How judgment against principal and surety entered— Execution in such case 136 Fee of appraisers of real estate— Penalty for neglecting to serve • ,. 100 as an appraiser 137 Execution may issue to another county and may he returned by ' ' ., 101 mail 138. The execution docket and what it should contain— The index thereto 1,H 139. Proceedings when order of sale issued in case not on trial docket 102 140. Failure of sheriff to perform duties required in connection with sale of real estate 102 FORMS. Peocedube where Real Estate is Sold by Execution Issued on a Judgment in a Civil Action. PAGE NO. 1. The petition — Cognovit l03 2. The answer in cognovit 3. The judgment by confession 105 4. The execution issued in the above case 105 5 Sheriff's proceeding under the writ of execution 1°» * i nt* 6. The precipe for order of sale 7. The order of sale directed by the clerk to the sheriff 106 8. The appraisement of real estate under the writ 107 9. The proof of publication and notice of sale 107 10. Notice of sheriff's sale under the vendi 10S 1 1. Sheriff's return of said writ ■ • 108 12. The order of the court approving and confirming sale by sheriff and ordering deed • i3. Sheriff's deed on sale ofreal estate under an execution 110, 111 Proceedings for Sale of Real Estate where Judgment ra Entered in One County and Execution is Sent to Another. 14 The petition on which judgment is entered 112 15. The precipe 16. The summons 17. The sheriff's return of summons I 13 IS. Default judgment on the petition 10. Execution issued to the sheriff 20. Sheriff's return of the execution 21. Execution issue' 1 to the sheriff of another county • I 14 22. Sheriff's return of his proceedings under the writ of execution. . 115 Xll TABLE OF COKTENTS. Proceedings to Set Aside Fraudulent Deed and for Sale of Real Estate to Satisfy Judgment, and Marshaling Liens, no. PAGE 23. The petition in such case 116 24. The summons and the sheriff's order of service of same 117 of same 117 25. The answer 118 26. The answer and cross-petition of another defendant 119 27. Decree setting aside deed and ordering sale of real estate 120 28. The order of sale from the clerk directed to the sheriff 121 29. Proof of publication and notice of sale 122 30. Sheriff's sale of real estate 122 31. The sheriff's return of the sale 123 32. Motion to confirm sale and apportion costs 124 33. Order of the court confirming sale and ordering deed 124 34. Sheriff's deed in such case 125 35. Petition for sale of real estate under levy made under a foreign execution 127 36. Summons in such case and the sheriff's return 128 37. Summons to another county and the sheriff's return thereof 129 38. Answer and cross-petition setting up a life estate on real estate. . 129 39. Answer of judgment debtor — General denial 130 40. Answer of a mortgage lienholder setting up mortgage 130 41. Entry finding the issues in favor of plaintiff and ordering sale of real estate 131 42. Order of sale from the clerk to the sheriff 132 43. The proof of publication 133 44. Legal notice of sheriff's sale 133 45. Sheriff's return of his sale. . . 133 46. Confirmation of sale and order for deed and distribution 134 47. Sheriff's deed in such case 135 CHAPTER III. Sale of Real Estate Under Writ of Attachment, section page 141. General principles 139 142. An auxiliary remedy allowed only after an action is begun — The purpose of the writ 140 143. When an action is deemed commenced 140 144. Cross petitioner is entitled to the writ 141 145. Jurisdiction — Entry of appearance — Service cf smmmons 142 146. Should summons be issued when defendant is a non-resident of the State? 142 147. When service may 1*> had by publication on non-resident de- fendants in attachment proceedings 142 148. Affidavit necessary in such cases 143 TABLE OF CONTENTS. XI 11 SECTION PAGE 14!). How publication is made 143 150. When service is complete and how proven 143 151. When personal service may be had out of the State 143 152. Grounds for the attachment 144 153. When the defendant is a foreign corporation 145 154. When a defendant is a non-resident of the State 145 155. Has absconded with intent to defraud his creditors 147 156. Fraudulent disposition of property 148 157. When the obligation has been fraudulently or criminally incurred 14M 158. Requisites of the affidavit in attachment 150 150. Filing of the affidavit is jurisdictional — The grounds of the at- tachment to be stated in the affidavit therefor 150 100. The kind of actions in which the writ of attachment may issue. . 151 101. Bond required before writ is issued 152 102. The order of attachment, its command and to whom directed. . . 153 103. Attachment orders may issue to different counties 153 104. When attachment orders are returnable 153 165. Order in which several attachment orders executed 153 100. The manner in which the order of attachment is executed 154 167. When property attached may be delivered to the person with whom found 154 16S. Several attachments may be made by the same officer 15 4 109. How subsequent attachments may be made 155 170. Officers' return of the writ and the time when the property is bound 155 171. How an attachment may be discharged and bond for same — Bond where action is brought for causing death 155 172. Undertaking may be executed in vacation 155 173. Effect of judgment for defendant in attachment 156 174. Proceedings after judgment for plaintiff 150 175. When questions of priority of several attachments may be re- ferred 15G 170. Death of defendant does not end attachment proceedings 156 177. Cases in which plaintiff may be required to give additional security 157 178. Attachment discharged by motion for that purpose, and evidence in such cases 157 170. Proceedings in error to reverse, vacate or modify order discharg- ing attachment 157 180. Error proceeding to reverse order discharging attachment — Bond in such cases 158 181. When administrator or executor may file such petition in error. 158 182. An attachment may be had before debt is due — Grounds for such attachment 150 183. Who may grant the affidavit therefor 150 184. Action to be dismissed if writ is refused 150 185. Order must specify amount for which writ is allowed 150 180. Bond required in such cases 100 187. Such actions to be continued until the claim is due 160 XIV TABLE OP CONTENTS. SECTION PAGE 1SS. How far other provisions of attachment law applicable 160 189. How to proceed before a justice of the peace when defendant has no personal property, but owns real estate 160 FORMS. Procedure in Sals' of Real Estate by Order of Court in Attachment Proceedings. no. PAGE 48. The petition in such cases 162 49. The affidavit for attachment 161 50. The bond required where defendant is not a foreign corporation or a non-resident 165 51. The order of attachment issued by the clerk to the sheriff 165 52. The sheriif's return of the order of attachment and the appraise- ment thereunder 166 53. Affidavit for service by publication upon non-resident defendants in attachment of real estate 166 54. Proof of publication of notice for non-resident defendant and the legal notice 167 55. Finding and approval of the court as to the correctness of the service by publication 168 56. Judgment of the court and order of sale of attached property as upon execution 168 57. Motion of defendant asking to set aside judgment and order of vale 16S 58. Order of court sustaining motion and granting defendant leave to answer 160 59. Answer of defendant to the petition of plaintiff in attachment. . . 169 60. Reply of plaintiff to answer of defendant 170 61. Verdict of jury on trial of the issues in attachment proceedings. . 171 62. Motion of defendant to vacate and set aside verdict of jury and for new trial in attachment 171 63. Judgments and order of the court overruling motion for new trial and order of sale 172 04. Order of sale in attachment proceedings issued by the clerk to the sheriff I":.' 65. Sheriff's return of his proceedings under the order of sale 173 66. Proof of publication of sheriff's sale and legal notice of such sale 171 f'i7. Appraisement of real estate and oath of appraisers 17 1 (is. Entry confirming sale, ordering distribution and the execution and delivery of a deed to the purchaser at sheriff's sale of attached properly 175 69. Sheriff's deed for real estate sold by him under attachment pro- ceedings 176 TABIJE OF CONTENTS. XV CHAPTER IV. Sale of Entailed Estates i?y Order of Court. PAfiH SECTION 190. General discussion — Entailed estates to pass to issue of first donee 1!»1. The constitutionality of disentailing acts 1 79 192. Where the action must be brought 1S0 193. Who may obtain the sale of entailed and other kindred estates. . ISO 194. Such sale must be for the best interest of the parties 181 195. Requisites of petition for sale of entailed estate, and who are to be made parties defendant in such action 182 190. Procedure incidental to the action 18,{ 197. Guardian ad litem should be appointed for minor defendants 184 198. Order for sale and effect of sale — Appointment of trustees 184 199. A sale may be had by consent of parties 1S;) 200. Report and confirmation of sale and deed 185 201. How proceeds of such sale are to be disposed of 185 202. The manner of investing funds arising from the sale of entailed estates 203. Further investment of proceeds 204. Who to receive income and pay taxes and expenses 186 205. The manner in which said estates may be leased 187 NO 70. 71 74 75 76 FORMS. Forms of Procedure in Sale of Entailed Estates. page Petition for sale of an entailed estate. ,., 1SS Waiver of summons and entry of appearance 1 ;)0 72 Finding and decree ordering sale of property and appointing ap- • 190 praisers 73. Order of sale 91 The sheriffs return of his proceedings under the writ 192 75. The order for appraisement. The oath of appraisers and the appraisement 193 77. The order of the court appointing trustees and fixing bond 193 78. The bond of trustees 79. The official oath of trustees 1!14 104 SO. The answer of trustees 81 The order confirming appraisement and sale, and order for deed and distribution of proceeds 82. The sheriff's deed in sale of entailed estates 1 !H > 83. The order approving proceedings and ordering sheriff to turn over money to trustees 84. Another form for petition in the sale of entailed estates 198 Xvi TABLE OF CONTENTS. NO. PAGE 85 Answer under said petition 200 8G. Another form of decree and order of sale of the premises, and appointment of trustees 200 87. Another form for order of sale and report of sale 201 88. The acceptance of appointment 203 8!). The bond of trustee 203 90. The entry confirming sale and ordering trustee to purchase other real estate 204 91. The report of trustee as to investment 204 92. The order of court approving investment 205 93. Another form for a petition by tenant for life for sale of estate. . 200 CHAPTER V. Sale of Real Estate by an Administrator to Pay Decedent's Debts. section PAGE 206. Nature of the procedure and care required of counsel conduct- ing the case "09 207. In what court and how the application shall be made 211 208. Determination of equities and priorities — Distribution — Order for a release of liens — Fees — Applicable to guardians, as- signees and other trustees 213 209. When an executor or administrator to apply for a sale of real estate to pay debts 213 210. Real estate may be sold by executor or administrator for the payment of legacies 213 211. The statute of limitations as to such actions 214 212. What interest and estates in real estate may be sold — Sale of equitable interests 215 213. Real estate fraudulently conveyed liable to sale 210 21 I. How executor or administrator to get possession of land fraudu- lently conveyed — How such conveyance avoided — Where >iich action must be brought 217 215. What are debts within the terms of the statute authorizing such sale "*° 210. Administrator ilc bonis von to complete proceedings begun by his predecessor ^'■^ 217. What the petition for such sale of real estate must contain and who should Ik- made parties to the action 219 21S. When assets of decedent will be marshaled in conformity to will 221 219. Sale prevented, how 221 220. Procedure incidental to the action 222 221. Service of summons and waiver — Legal guardians may consent — i >t her proceedings 2-3 222. When guardians ad litem to be appointed — They have no power to assent ™-3 TABLE OF CONTENTS. XV11 SECTION PAGB 223. When court orders real estate to be sold — Terms of sale, conduct of trial, if contested 223 224. Heir by private sale of real estate will not defeat right of per- sonal representative to sell 224 225. The estate of the heir in the lands set off to the widow to be sold 225 220. The whole of the real estate to be sold when a partial sale will injure the residue 225 227. When further bond will be required of the administrator or the executor 225 228. Awarding of costs where there are objections to the sale 225 220. Appraisement when no dower is assigned 220 230. Appraisement of the real estate — Duty of appraisers as to dower and homestead — When lands in two or more counties 220 231. Dower especially assigned to be a charge on the land 228 232. Vacancies in appraisers, how filled 22S 233. Oath of appraisers, certificate thereof — View and Return — Com- pensation of appraisers 229 234. The notice of sale by the executor or administrator 229 235. Notice of sale in German or Bohemian newspaper — Error in translation to be disregarded 229 230. For what amount the lands may be sold under appraisement or order to sell at fixed price 230 237. When sale of such real estate to be at public or private sale — Sale in parcels 230 238. Return of sale to court — Confirmation — Acceptance of cash — Sale of notes and distribution 231 239. Executor's or administrator's deed evidence of the validity of the sale — What estate shall pass by it 231 240. How money arising from sale of land to be applied 232 241. Where sale is authorized by will, no order of sale required. . . . 232 242. When foreign executor or administrator may be authorized to sell real estate 232 243. When foreign executor or administrator to give bond 233 244. Foreign executor or administrator to give further bond to ac- count for surplus, when 233 FORMS. Procedure in Sale of Real Estate by an Administrator to Pay Decedent's Debts. no. PAGE 94. The petition when the action is in the court of common pleas. and when the action also seeks to sell land of decedent, conveyed by him in fraud of creditors 234 95. The precipe 235 90. The summons for defendants in the county where the action is brought 236 ^Viii TABLE OF CONTENTS. NO. PAGR 97. The sheriff's return of summons 236 98. Summons for defendants living in a county other than where the petition is filed 236 99. The sheriff's return of his proceedings under said summons.... 237 100. The answer and cross-petition of a defendant setting up a build- ing and loan mortgage 237 101. Waiver of summons and entry of appearance 239 102. Another form of answer in such case 240 103. Entry appointing guardian ad litem 240 104. Answer of guardian ad litem 241 105. Decree setting aside fraudulent conveyance and ordering sale of real estate 24 1 106. The order of appraisement 243 107. Administrator's return of his proceedings under said order.... 244 108. The oath of appraisers 244 109. Entry confirming the appraisement and order of sale 244 110. The order of sale directed from the clerk to the administrator. . 245 111. The administrator's publication of sale of real estate 240 112. The proof of said publication 246 113. The administrator's return of his proceedings under said order of sale 246 114. Confirmation of sale — Order for deed and distribution 247 115. Form for the administrator's deed in such case 247 Procedure in the Probate Court where Real Estate is Sold by ax Administrator at Private Sale Subject to Dower. 116. The petition in such case 251 117. Answer of widow asking an assignment of dower in the estate sought to be sold 251 118. The precipe' for summons 252 119. Summons on petition to sell real estate 252 12(i. The sheriff's return of summons 252 121. Decree and order of sale of real estate subject to dower 253 122. The order of assignment of dower and appraisement of real <-state 253 123. The administratrix's return of her proceedings under order.... 254 124. The oath of appraisers 254 125. The appraisers' return of their proceedings 254 126. Order of the court confirming appraisement 255 127. Form for additional bond and sale of real estate subject to dower 255 128. Order to soil real estate at private sale, for cash, subject to dower — Approval of additional bond • -56 129. The order of -ale 1.. the administratrix, at private sale, for cash. and subject 1<> dow r 256 130. The administratrix's report of -ale under said writ 257 131. Entry confirming sale and ordering deed 257 TABLE OF CONTENTS. &1X NO. PA. The appointment of a trustee in place of an assignee or trustee — His powers and duties 316 270. The appointment of a trustee to act in the place of an assignee. . 31(i 271. Notice required in case a trustee is appointed to act for and in place of an assignee 317 272. The inventory and appraisement of real estate assigned, and duty of assignee where real estate is situated in another county. 317 27o. What property exempt from the assignment — The homestead ex- emption 317 274. The real estate must be converted into money 318 275. In what case, no petition need be filed for sale of real estate. . . . 318 270. In what court the action must be brought 318 277. The procedure in sale of real estate by an assignee 31!) 278. Notice of time and place of sale of real estate, and amount for which the same can be sold 320 27!). Manner in which real estate may be sold at public auction — En- forcement of cunt) acts 320 280. Manner in which real estate may be sold at private sale 321 281. When the court may fix the amount at which the real estate may be sold 321 282. Procedure as to wife's dower 321 283. Procedure where wife joins in mortgage, or mortgage is for purchase money , 322 284. Manner of payment of liens — Questions of dower — Homestead — Com pletion cf real contracts of assignor and application of proceeds of sale 322 2S."). The order to release mortgages or liens in recorder's office. . . . 323 286. Procedure when town lots are to lx> laid out 324 287. Confirmation of sale and order for deed 324 Foil MS. Procedure bt Which Real Estate is Sold isy an Assignee for Benefit of Creditors. \m. PACE 200. The deed of assignment 326 201. Form for accept a nee of trust 328 202. The petition for sale of real estate of an assignee for the ben- ( lit of creditors , . 328 TABLE OK CONTENTS. XX1U NO. PAGE 203. The precipe for summons 329 204. Answer of wife or assignor . . 320 205. Answer of an assignor 320 20(i. '1 lie summons for defendant in sale of real estate by an assignee for the benefit of creditors 320 207. The sheriff's return of liis proceedings under said writ 330 20S. Answer and cross-petition of a defendant setting up notes secured by mortgage 330 200. Cross-petition of a trustee setting up mortgage lien 331 210. Decree and order of sale 332 211. Affidavit for authority to sell real estate at private sale 333 212. Order for sale of real estate at private sale 333 213. Order of sale from the probate court to the assignee 333 214. The assignee's return of his proceedings under the order of sale. 334 215. Assignee report of sale 334 216. Confirmation of private sale of assignee 334 217. Form for deed of assignee in sale of real estate at private sale. . 335 218. Order of assignee to sell at public auction 336 219. Assignee's report of his proceedings under the writ 337 220. Legal notice of sale and proof of publication 337 221. Decree and order of court confirming sale 337 222. Form of assignee's deed at public auction 338 CHAPTEPv VIII. Sale of Real Estate by a Receiver, section page 288. The source of the receiver's authority to .-ell real estate 340 289. The statutory powers of a receiver 341 290. The statutory instances in which a receiver may be appointed. . 341 291. The manner in which a receiver may l>e appointed and the pro- cedure in such case . 342 FORMS. The Procedure by Which Real Estate ra Sold by a Receiver. NO. PAGE 223. The petition in the action in which a receiver is appointed 343 224. The precipe for a summons .". 4«'. 225. The summons 3415 226. The sheriff's return of the writ 34l> 227. The motion asking for the appointment of a receiver 347 228. The notice to the defendant of the time and place asking for the appointment of a receiver 347 229. The order of the court appointing a receiver 347 230. The order of the court appointing counsel to advise receiver. ... 318 255. The deed from the trustees to the purchaser at trustee's sale of real ?state in bankruptcy 365 XXIV TABLE OP CONTENTS. NO. PAGE 231. Motion asking the court's instruction as to publication of notice to creditors 348 232. Order of the court directing the manner and kind of notice to be published to creditors 349 233. llie notice so published 34!) 234. The proof of the publication 350 235. The inventory filed in the action by the receiver 350 230. Application for the appointment of appraisers and for the order to sell real estate 350 237. The receiver's report of appraisement 351 23S. The appraiser's oath and their report of appraisement 351 230. The application for confirmation of appraisement 352 240. The confirmation of appraisement and order of sale 352 241. Receiver's report of sale of real estate 353 242. Legal notice of receiver's sale 354 243. The proof of publication 354 244. The order of the court confirming sale 355 245. The deed from the receiver to the purchaser 355 CHAPTER IX. Sale of Real Estate by Trustee in Bankruptcy. section page 292. The source of the trustee's authority to sell 358 293. The appraisal of the real estate 358 294. The manner in which the sale is conducted 358 FORMS. Procedure by Which Trustee in Bankruptcy Sells Real Estate at Private Sale. N0 - PAGE 240. The order of the court appointing appraisers 360 247. The oath of appraisers, the appraisement and return of the ap- praisers 3, ;1 248. The petition to sell real estate at private sale subject to incum- brances 3(jj 249. The order to sell real estate at private sale subject to incum- brances 352 250. The entry confirming such sale 333 251. The petition for sale (if real estate by public auction 303 252. The order of the court authorizing sale at public auction 303 253. The petition for sale of real estate at public auction subject to Hens 364 254. The order and decree of the eourt authorizing such sale 304 TABLE OF CONTENTS. XXV CHAPTER X. Sale of Real Estate Under Partition Proceedings, section page 295. Nature of the proceedings — Equitable and statutory 368 296. Amicable partition 371 297. Partition may be made by parol 372 298. Written agreement for partition 373 299. One tenant cannot effect partition by deed conveying his inter- est by metes and bounds 373 300. Joint tenancy does not obtain in Ohio 374 301. Disputed title can be determined by partition 375 302. Will may be construed — Course of descent and legality of bequest determined in partition 375 303. Partition creates no new title 377 304. Construction of partition by mutual releases 378 305. Applicant for partition must be in actual or constructive pos- session •, 3 1 9 306. Several estates, part of which under life leases, pa«t of which not —Part can be partitioned and part not 380 307. Remainderman or reversioner cannot have partition — Life estate outstanding, when 382 308. Title of demandant must be alleged and proved 384 309. Who may have partition 384 310. When partition can not be had — Where the action must be brought 385 311. Who may file petition for partition 386 312. The order for partition 386 313. The writ of partition 387 314. Commissioners shall make partition, how 387 315. How partition made when more than one tract to be partitioned. 388 316. Commissioners to appraise land when they cannot divide it — Elec- tion of parties to take at appraisement 3S9 317. Terms of payment when estate taken by party — Execution of con- veyances 39 1 318. Sale of the estate when parties do not elect to take the same. . . . 392 319. How such sale conducted and the terms thereof 392 320. Confirmation of sale and execution of conveyances 392 321. Distribution cf proceeds — Sheriff's liability 392 322. Proceedings when the estate has been once offered and not sold. . 395 323. When successor of sheriff who made sale to execute conveyances. 395 324. When widow is entitled to dower, or an interest is subject to a life estate 396 325. Commissioners appointed to partition the estate to assign dower. 397 326. Partition — Power of guardian to act for ward 398 327. Powers of foreign guardian 399 328. Action by one parcener against another for rents and profits. . . . 399 329. Rents and crops apportionment in case of sale 399 XXVi TABLE OF CONTENTS. SECTION PAGE 330. Absence of seven years, presumption as to — Purchaser entitled to improvements, when 400 331. Partition of property belonging to religious corporations 401 332. When such partition can be made and effect thereof 402 333. Costs and expenses to be equitably taxed in partition proceedings 402 334. Certificate from court — Partition and deficiency of assets 403 335. Court shall order proceeds of partition proceedings to be paid over to executor or administrator, when 403 330. Partition cannot be had within. a year from death of decedent, when 404 337. Advancement — Hotch-potch in partition 400 338. Advancement by an intestate to he considered a part of the estate 400 330. When the advancement is greater or less than the heir's share.. . 407 340. When the advancement is wholly real or personal estate 40H 341. When value of advancement expressed in deed J 0S 342. Judgments in partition cannot be collaterally assailed 400 343. Lien against co-tenant attaches to share set off to him in sev- eralty by partition 410 344. Rights of a joint owner who pays his portion of a tax — Those not paying held liable as if partition lrad not been made — A tax on lands sold at judicial sale to be paid cut of proceeds of sale — Part owner paying tax on whole tract shall have lien ' 411 345. Purchasers may have partition as in other cases 412 346. Appeal and error in partition 412 FORMS. Procedure in Partition Proceedings, no. page 250. Petition in partition and to quiet title 415 257. The precipe 41!) 258. The summons 41!) 259. Sheriff's return of service of summons 420 260. Answer of guardian for an infant 420 261. Waiver of summons and entry of appearance 420 262. Answer of widow asking to be endowed nut of proceeds of sale. 421 263. Motion for appointment of guardian ad litem 422 204. Order appointing guardian ad litem '22 265. Answer of guardian ad Utem 42'' 200. Decree of partition 423 267. Writ of partition directed to the sheriff by the. clerk 421 2fiS. The commissioners' report 425 269. Sheriff's return of his proceedings under the writ 425 270. Election of plaintiff to take the real estate al the appraisement. 420 271. Entry confirming sale, order of deed and distribution 426 TAIJU3 OF CONTENTS. XXVll PACE NO. 272. Sheriff's deed in partition 427 27:$. Writ of partition where the property cannot be divided and ia BOld 4 - S 274. The sheriff's return of Ids proceedings under the writ 42 ( ) 275. The commissioners' report of their proceedings under the writ. . 42!) 276. Order of sale in partition — Legal notice — Publication — Sheriff's return 430 277. Petition for partition, when advancements have been made 431 278. Petition in partition — When there is an accounting for rents and profits 432 279. Petition for equitable partition when there have been advance- ments **3 280. Petition for partition !>y guardian 4:5r > 281. The answer in partition 436 282. Cross-petition of defendant setting up mortgage claim on real estate sought to be partitioned 438 283. The order for publication for unknown heirs or devisees 439 284. Legal notice to unknown heirs 440 285. Legal notice — Sale of real estate in partition by the sheriff 440 28b\ Form of certificate to probate court 441 287. Journal entry allowing above application 442 288. Certificate under previous order 442 289. Motion by administrator asking for a fund from the estate to pay debts of decedent 442 290. Entry sustaining above motion 443 291. Proof of publication in partition proceedings 443 292. Legal notice and service by publication in partition proceedings. . 443 293. The affidavit for service by publication in partition proceedings. 444 294. Report of commissioners assigning dower by metes and bounds, and awarding partition by metes and bounds 444 295. Writ of dower when the same cannot be assigned by metes and bounds and there is an assignment of rents and profits. . . . 444 CHAPTER XL Sale of Real Estate by Religious and Other Kindred Societies. section page 347. General discussion 445 ?48. Religious society may petition the court for sale of real estate used for cemetery purposes — Notice by publication to be given — Procedure - , -'7 349. Tn what cases certain churches or church societies may sell lands. -I IS 350. The kind of notice given in such case and the order of the court therein 448 351. Procedure for sale of real estate in certain eases after certain church organizations have consolidated 449 XSV111 x^rJLE OF CONTENTS. SECTION . PAGE 352. How notice of the pendency of the petition in such case shall be given 419 353. When and how real estate of certain extinct incorporated reli- gious societies may be sold 450 354. Duties of trustees of extinct parishes and their duties as to moneys received from sale of real estate 450 355. Who are to be made parties to proceedings for the sale of such feal estate 451 356. Manner of sale and conveyance of real estate of certain consol- idated religious societies — Who must be defendants in such actions 451 357. Publication of notice in such sales 452 358. Manner in which churches generally may sell, exchange or en- cumber real estate 452 359. Kind of notice to be given when the sale of church property is asked of the court 453 360. All sales, mortgage or exchange of church property, sold by pro- ceeding in court, to be confirmed by court 453 361. When real estate given to certain charitable uses may be sold by order of court — Procedure in such cases 453 362. Necessary parties to such proceeding — Partition of church prop- erty 454 FORMS. Procedure for Sale, Exchange or Encumbrance of Church Property. no. page 296. Petition for sale or exchange of church properties 455 297. Legal notice and proof of publication 457 298. Order of court authorizing sale and exchange of real estate 458 299. Report of sale and exchange" of real estate by church 459 300. Order of court confirming exchange and ordering deeds to be made -400 301. Form for church deed in exchange of real estate 400 302. Petition asking for sale and encumbrance of church property. . . . 462 303. Publication of notice and proof of same 463 304. Decree of court authorizing mortgage of part and sale of part of real estate of church 464 305. Confirmation of sale and mortgage of real estate 465 306. Form for deed in such instance 465 TABLE OF CONTENTS. XXIX CHAPTER XII. The Law and Procedure en Sale of Real Estate in" Proceedings to Foreclose a Mortgage. m:ction page 363. The execution and acknowledgment of a mortgage 407 304. The lien of a mortgage and its priority over other liens 468 3(i.">. The assignment of the note carries with it the mortgage security. 40*) 3ti0. The mortgagee's remedies — Foreclosure, ejectment and an action on the note for a personal judgment 470 3 pay 504 390. When and how subcontractor may obtain lien on the property of t he owner 504 391. Such lieu entitled to priority over lien of head contractor — As- signments, attachments, etc 505 392. KH'ect of collusion and fraud in payment to principal contractor.. 505 393. Service of notice, affidavits, etc. — How made 500 394. Remedy of contractors and others where owner suspends work without their consent 506 TABLE OF CONTENTS. XXXI PACE SECTION 395. Laborers shall have other lien on real property of employer- Precedence of lien — When deemed waived — What liens shall have priority 506 31)6. To whom foregoing sections apply 507 FORMS. Procedure in Sale of Real Estate to Satisfy a Mechanic's Lien. no. PAGE 327. The mechanic's lien 509 328. The petition for foreclosure of a mechanic's lien 510 329. The precipe for summons ; >1- 330. The summons and its return of service by the sheriff 512 331. An answer and cross-petition in the action 513 332. Reply to answer and answer to cross-petition 514 333. The verdict of the jury 515 334. Motion to set aside the verdict and for a new trial 515 335. Order of court overruling motion for a new trial, judgment on the verdict and decree ordering sale of real estate 515 336. The order of sale directed by the clerk to the sheriff 516 337. Sheriff's procedure under said order of sale and oath of ap- praisers 517 338. Appraisers' report 51 S 339. Proof of publication of legal notice of sale of real estate 518 340. Legal notice of sale of real estate >18 341. Sheriff's return of his proceedings under the order of sale 518 342. Decree and order of court confirming sale, ordering deed and dis- tributing fund 519 343. Sheriff's deed 520 CHAPTER XIV. The Law and Procedure hy Which Real Estate is Sold Under Fore- closure of Tax Lien. section page 397. The procedure in foreclosure of tax lien 523 39S. When the lien of the State attaches 524 399. Penalty for non-payment of real estate tax 525 400. Owner of life estate, guardian, agent, ete.. to pay tax, when. . . . 520 401. All persons holding lands shall list lands for taxation — Penalty for neglect 526 402. Paying taxes on lands — Agents and attorneys — Payment by other than owner 526 403. Guardian's liability for neglect to pay taxes 527 XXXii TABLE OF CONTENTS. SECTION PAGE 404, Duty of executors to pay taxes, when 527 405. Duty of agents and attorneys as to payment of taxes 528 400. The lien of such executors, guardian or attorney on the land for money advanced for taxes 528 407. Liability and forfeiture of tenants in curtesy or dower for neg- lect — Redemption in such case 528 408. Any one claiming lien on real estate shall have the tax lien on all taxes paid by him 529 400. Rights of a joint owner who pays his portion of tax — Those not paying held liable as if partition had not been made — A tax on lands at judicial sale to be paid out of proceeds of sale — Part owner paying tax on whole tract shall have lien. . . 529 410. General taxes paid out of proceeds of judicial sale, when i 530 411. The rule as to payment of assessments out of proceeds of a ju- dicial sale of real estate 531 412. Delinquent land list — Cuyahoga and Hamilton Counties — How published 532 413. A failure to comply with the requirement of the statute as to ad- vertisement defeats title of purchaser 533 414. Auditor to compare delinquent list with duplicate 533 415. Copy to be inserted at foot of record of delinquent list — Certifi- cate as to their publication 533 410. Proceedings when delinquent list, not published 533 417. Omitted publication f: " 4 418. Paper containing list to be sent to auditor of State and printers' account **>'* 419. Sale of delinquent lands — Conditions — Cuyahoga County 534 420. How to proceed if purchaser fails to pay 535 421. County auditor or deputy to attend sales of delinquent lands — To forward copy of record of sales to auditor of State 535 422. Certificate of purchase of delinquent lands— Duty of county sur- veyor under such certificate 53(t 423. When survey and deeds shall be made 530 424. Certificates assignable 53(> 425. When auditor to make deeds — When two or more tracts are sold to one purchaser — Auditor to make one deed 537 420. Title by deed and its effect as evidence 537 427. Sale for tax cuts out previous liens and bars dower 538 428. Tn what cases survey of land sold for taxes, dispensed with 538 429. Purchaser of the interest of joint tenant, etc., to hold in common. 539 430. Title acquired at tax sale invalid, when 539 431. In tax sale of delinquent lands, the statutes authorizing the sale to be strictly construed 54 ° 432. Lien of tax purchaser for purchase money, etc., of sale invalid. . 540 433. Sale not invalid if tract charged in wrong name 541 434. The real estate must be described so as to sufficiently identify the property 541 435. Auditor may make deeds of lands heretofore sold 541 436. When certificates have been lost or destroyed— How deeds made. 542 TABLE OF CONTENTS. XXXJii SECTION PAGE 437. How auditor to keep minutes of deeds made 549 438. And to note redemption of lands 542 439. Sale of land for taxes regularly paid, void — Proceedings in such case 543 440. When auditor may make deeds for lands in other counties 543 441. Auditor to transfer land sold for taxes 543 442. Applications for redemption to be made to auditor 543 443. Redemption of delinquent lands — Limitation 544 444. How lands may be redeemed 544 445. Joint owner, etc., may redeem his proportion 545 440. Proceedings of party, treasurer and auditor on application to redeem 545 447. Payment of redemption money to tax purchaser, etc 545 448. When auditor to note on back of certificate that deposit has not been made — Note of redemption on record of tax sjxles.... 546 44!l. Tax purchaser's improvements — How paid for, etc 546 450. Sale, etc., for taxes of lands and lots, etc., under permanent lease 547 451. Proceedings when land is returned delinquent upon which taxes were paid 547 FORMS. NO. PAGR 344. The petition 518 345. Older for publication for unknown heirs 550 346. The proof of publication 550 347. The legal notice 550 34S. Entry foreclosing lien and ordering sale 550 340. The order of sale from the clerk to the sheriff .> • I 350. The sheriff's return of his proceeding under the order of sale. . . . 552 351. Proof of publication of legal notice of sale 55:: 352. Legal notice of sheriff's sale cf real estate 553 353. Appointment of appraisers 55:! 354. The oath of the appraisers 554 355. Appraisement 554 356. Order of court confirming sale and distributing proceeds of the sale 554 357. The sheriff's deed in foreclosure of tax lien 555 358. Tax certificate — Delinquent tax sale 557 350. Auditor's deed — Delinquent sale 557 360. Petition by treasurer of county to sell real estate for payment of taxes and street assessments '. 558 361. Order of sale under the above petition 550 362. Form for an answer containing a general denial — Defense of a corner lot and statute of limitations 560 XXXVI " TABLE OF CONTENTS. NO. PAGE 381. Answer of guardian ad litem G15 382. Motion for substitution of members of the committee 615 383. Report of the committee to investigate as to the insanity of the defendant G15 384. Affidavit of citizens as to the expediency of the sale of real es- tate as proposed in petition 616 385. Entry appointing appraisers C16 386. The appraisers' report of said real estate and their oath 616 387. Entry authorizing sale of real estate free of widow's dower. . . . 617 CHAPTER XVI. The Law and Procedure by Which Title to Real Estate is Trans- ferred by Condemnation Proceedings section page 502. Constitutional provisions as to the inviolability of private prop- erty 610 503. Necessity for the right of eminent domain 620 504. Power of municipalities to appropriate property for public uses. 620 505. For what purposes a municipality may appropriate property. . 021 506. In what cases property may be appropriated outside a munici- pality — Proviso as to cemeteries 621 507. The resolution of council and notice of intent to appropriate. . . . 622 508. In what courts the application may be made (122 500. The service of notice to owners of property 623 510. The court must fix time for the inquiry 623 511. A view of the premises may be required 623 512. Guardian ad litem appointed, when 623 513. How jury to return assessment — Manner of conducting the case. 624 514. Verdict in whole or in part 624 515. Orders as to payment or deposit of assessment — Order as to inter- pleader 625 516. The manner in which costs are assessed and paid 625 517. How interested parties may give bond in such cases 625 518. Review proceedings — Appeal to court of common pleas 626 519. Effect of neglect to pay or take possession in six months 626 520. What law governs appropriation of private property by corpora- tions 627 521. Probate bas exclusive jurisdiction to make inquest for amount of compensation to owner in appropriation cases 627 522. In what cases appropriation of real estate can be made by a cor- poration 627 523. How appropriation of property of a minor, idiot, imbecile or in- sane person may bo made 627 524. What the petition for such appropriation must contain, and in what courts the same must be filed 628 525. In what county the petition must be filed 620 526. Summons — Its command and service thereof 62!) TABLE OF CONTENTS XXXV11 SECTION PAGE 527. Service by publication G29 528. Jurisdictional questions to be first determined 029 529. Jurors to be drawn from tbe box and venire issued (530 530. Wbo entitled to a separate trial, and how trial conducted G30 531. The court may allow any amendment 030 532. Time of trial, adjournments and discharge of juries 031 533. How panel to be filled — Jurors to be interrogated by court 031 534. Challenges to jurors, and how vacancies in jury box filled 031 535. The oath to be administered to jury 032 530. The form of writ to sheriff 032 537. Judge must deliver certain copies to sheriff 032 538. 'Witnesses may be examined before jury 033 539. When a structure is partly on land sought to be appropriated.. 033 540. Verdict and confirmation thereof 034 541. When and how corporation may have possession 034 542. When and how corporation may abandon proceeding 034 543. When action may be brought for costs and expenses 035 544. New trial — Proceedings thereon 035 545. Either party may file a petition in error 030 540. Proceedings in the common pleas on error 030 547. How school land may be appropriated 036 548. When proceedings to appropriate private property may be com- menced in court of common pleas 037 549. Court to appoint attorney for party absent or under disability. 037 550. Conflicting claims not to be passed upon 638 551. But to be adjudicated in the common pleas 038 552. Such proceeding a civil action 639 553. Unfinished roadbed of railroad company may be condemned. . . . 039 554. Proceedings in such case 639 555. In what court such proceedings may be commenced 640 550. Proceedings when land is held without agreement by a corpo- ration 041 557. Summons in such case — Judgment and execution 042 558. When injunction may issue against corporation 642 559. Fees of witnesses, officers and probate judge, and how costs ad- judged 643 560. When costs may be apportioned 643 561. When this chapter does not apply 644 FORMS. Procedure by Which a Municipal Corporation Condemns Real Estate for Public Pitrposes. no. PAGE 388. Application to assess compensation 645 389. The precipe to the clerk 647 XXXviii TABLE OP CONTENTS. NO. PACK 390. The order of the court as to the manner of notice in the above case 647 301. The notice to be served by the sheriff in compliance with pre- vious order 648 392. The sheriff's return of his proceedings under this writ 648 393. Answer of defendant 649 394. Reply of plaintiff 650 ' 395. Motion by county commissioners to be made parties defendant. . G50 396. Waiver of notice and entry of appearance of county commis- sioners 651 397. Order of the court making county commissioners defendants... 651 398. Offer of plaintiff to confess judgment 651 399. Decree and order of the court impaneling jury 651 400. Order to clerk and sheriff to draw jury 652 401. Form for list of names drawn for jurors in the probate court.. 652 402. The venire 653 403. The sheriff's return of his proceedings under said writ 65S 404. Writ of view 654 405. The sheriff's return of his proceedings under said writ 654 406. The verdict of the jury 654 407. Order of the court confirming verdict 655 Procedure in Transfer of Title of ttie Property of an Individual in Condemnation Proceedings by a Private Corporation. 408. Form for the petition for the appropriation of private property. 656 409. The precipe in such case 658 410. Order issuing summons for the defendant and fixing the time and place for hearing preliminary questions 658 411. The summons and the sheriff's return of his proceedings under said writ 658 412. Motion to dismiss action 659 413. Order of the court overruling motion, directing that a jury be drawn and fixing the time at which the jury must appear. 659 414. The order to draw jury 660 415. The sheriff's return of his proceedings under said writ 660 416. The venire 661 417. The sheriff's return 661 418. Entry of the court, ordering the jury to view the premises sought to be appropriated 662 419. Writ of view 662 420. Sheriff's return of his proceedings under this writ 663 421. The verdict of the jury 6fl3 422. Motion to set aside verdict and for a new trial 663 423. Entry overruling motion and confirming the verdict of the jury. . 664 TABLE OF CONTENTS. XXXIX CHAPTER XVII. Transfer of Title by Vacation of a Street or Alley by a Municipality. section page 502. Vacation of street or alloy by order of the court 665 563. Vacated portion of street or alley revert* to adjoining owners. . 666 564. Petition for vacation of such street or alley, and the notice there- of to adjoining owners 666 565. Street or alley not to be closed until damages are paid 667 FORMS. NO. PAGE 424. The petition therefor 668 425. The publication of the legal notice in such cases 668 426. Proof of publication of the above notice 669 427. The order and decree of the court vacating the alley 669 CHAPTER XVIII. The Action to Quiet Title, section page 566. The statutory action to quiet title an additional remedy 670 567. The action prior to the statute 670 568. The action to quiet title and ejectment distinguished 670 569. The nature of the action 671 570. The action may be brought to settle a disputed boundary, when . . 673 571. The action to quiet title under the statute 673 572. What the petition should allege 673 573. Answers, cross-petitions and counter-claims in the action 674 574. Necessity of alleging possession 674 575. The service on defendants, actual and constructive 676 576. The nature and effect of the decree quieting title 676 577. Trial by jury may be demanded in the action 677 578. Injunctions against defendants may be granted, when 677 FORMS. Procedure in the Action to Quiet Title, no. page 428. The petition 678 429. The affidavit for service by publication 680 430. Entry ordering service by publication 680 431. The service by publication 680 Si TABLE OF CONTENTS. NO. PAGE 432. The proof of publication 082 433. The decree quieting title 082 434. Another form for a petition in the action to quiet title 683 435. Another form for the decree quieting title 684 CHAPTER XIX. The Law and Forms in the Action to Recover Possession of Real Estate^ — The Occupying Claimant's Law. section page 579. The nature of the action to recover possession of real estate. . . . 685 580. Petition in the action for possession of real estate 087 581. Petition by tenant in common against a cotenant 088 582. Answer to the petition in ejectment 088 583. The recovery when right terminates during the action 089 584. Who may maintain the action 089 585. Plaintiff's title 091 586. The proof of title required in the action. . 691 587. Neither party will be permitted to contest a prior deed, when. . 691 588. Adverse possession and the statute of limitations 692 589. The relief that may be obtained in the action 692 590. The causes of action that may be joined in the action to recover possession of real estate 692 591. The action triable to a jury 093 592. In the action for the recovery of the purchase money, vendee may recoup for the amount of liens and encumbrances, when 093 593. Parties may have benefit of occupying claimants' law, when 094 594. In what cases occupying claimant to be paid for improvements. . 694 595. Title under sale for taxes sufficient to protect occupant 696 596. Entry of claim for improvements 696 597. Regular jury to act — Duties of jury 606 598. Sheriff to summon talesman, when 097 599. Setting verdict aside — Challenge — Costs, if too many witnesses called 697 600. Judgment and execution on verdict for plaintiff 698 601. Proceedings if verdict is for occupying claimant 698 602. A writ of possession will issue, when 699 603. When claimant elects to receive value of the land 699 604. The occupant may have an action for the title, when. FORMS. Forms in Procedure to Recover Possession of Real Estate and to Re- cover for Improvements Under the Occupying Claimant's Law. no. page 430. The petition to recover possession of real estate 700 437. The answer of defendant 701 TABLE OP CONTENTS. xli NO. PAGE 438. The verdict of the jury 701 439. Judgment on the verdict and application by occupying claimant for valuation of improvements 701 440. Application to the clerk for a jury 702 441. The writ for a jury directed by the clerk to the sheriff 702 442. The certificate of the oath of a jury 703 443. The assessment by a jury for improvements under occupying claimant's law 703 444. The sheriff's return of his writ in an action for relief under the occupying claimant's law 703 445. The oath of the jury in the action 704 446. The order and judgment when the plaintiff in ejectment elects to pay to the occupying claimant for lasting and valuable improvements and to keep the lands 704 447. Another form for the petition in an action to recover possession of real estate 705 CHAPTER XX. Law and Procedure When Courts Authorize Executors and Admin- istrators to Complete Decedent's Land Contract, section PAGE 605. When the survivors of vendors of land may be authorized to convey it 706 606. What the petition must contain in such instances 706 607. The order of the court in such instances and deed for the real estate 707 608. An action by an administrator to complete decedent's real con- tract — Where the action may be filed, and the requirements of the law as to the parties to the action 707 609. When the court may order conveyance — Deed and its effect. . . . 707 610. When the heirs of deceased purchaser may have a like action.. 708 FORMS. Forms of Procedure for Completion, by the Representatives of a Decedent, of His Real Contracts, no. PAGE 448. Petition to complete real contract 709 449. Answer of defendants in such cases 710 450. Answer of widow in such case 710 451. Entry ordering legal representative to complete contract 711 452. Form for deed to complete decedent's land contract 712 453. Another form for petition by an administrator to complete de- cedent's contract for sale of land 713 454. Form for a petition by a surviving contractor 714 xlii TABLE OF CONTENTS. CHAPTER XXI. The Action to Contest a Will. SECTION PAGE 611. The nature of the action to contest a will 716 012. The scope of the inquiry 711) 613. Who may make a will 719 614- What constitutes a sound and disposing mind and memory.... 719 015. Undue influence 720 616. The manner in which a will must be executed 720 017. The acknowledgment by the testator and the attestation of the will 722 018. The manner in which a will may be revoked 723 619. The certificate from the clerk to the probate court 724 020. Duty of the probate judge on notice of contest — Papers to be sent to the common pleas and what return is made to the probate court 724 621. The manner in which the issue is made up 725 022. The conduct of the trial 725 023. The action to be tried by a jury — The court may direct a ver- dict. 726 624. The effect of the order of probate on the issue 720 025. The testimony upon the probate of the will becomes competent, when 727 020. Who may contest a will or codicil 727 027. The necessary parties to the action 728 028. The limitation of the action to contest a will 728 029. Error, not appeal, lies in the action to contest a will 729 FORMS. Procedure in the Action to Contest a Will,, no. page 455. The petition to contest a will ; . . 731 450. The precipe 733 457. The summons in the action : . . . 733 458. The sheriff's return of the summons 733 459. Certificate to the probate court by clerk on the filing of the )>e- tition to contest will 734 460. Journal entry and certificate of probate court in the action to contest a will 734 461. Certificate to the court of common pleas in the action to contest a will 735 402. The joint answer of the defendants in the action 735 403. The verdict of the jury sustaining the will 730 464. Motion for new trial 736 TA3IJE OP CONTENTS. xliii 2TO. PAOK 465. r rhe judgment of the court overruling the motion for a new trial and sustaining the will 737 466. The certificate of the clerk of the court of common pleas, with copy of final judgment to the probate court, after final judgment is rendered in the action to contest the validity of a will 737 467. The application for the appointment of a guardian ad litem in the action to contest a will 738 468. The order of the court appointing a guardian ad litem for minor defendants 738 460. The answer of guardian ad litem, for minor defendants in the action to contest a will 738 470. The order entered on the journal making up the issue, when the issue is not made by the pleadings 739 471. Another form for a petition 73!) 472. Another form for the answer of defendants 740 473. Another form for a petition to contest will upon the ground that the alleged testator was not of sound and disposing mind and memory, and was under undue influence and restraint, in attempting to make the same 740 474. Petition to contest a nuncupative will 741 TABLE OF CASES. [References are to sections.] Abbott v. Bostworth (2 W. L. B. 92), 462. Abram v. Will (6 0. 164), 585, 597. Adair v. Farrey (105 N. W. 714), 9. Adams v. Jeffries (12 0. 253), 60. Adams v. Jeffrey (12 0. 253), 61. Adams v. Parnell (11 C. C. 367), 584. Administrator v. Executor (22 0. S. 436), 338. Affleck v. Snodgrass (8 0. S. 235), 465. Alabama v. Price (42 Ala. 39), 206. Albert v. Armstrong ( 14 C. C. 296), 160. Allen v. Allen (18 0. S. 234), 215. Allen v. Bank (23 O. S. 97), 365. Allen v. Everly ( 24 0. S. 97 ) , 366. Allen v. McCoy ( 8 0. 469 ) , 452. Allen v. McCoy (8 O. 418), 476, 480. Albright v. Meredith (58 0. S. 194), 92. Allen v. Miller (11 0. S. 374), 9, 30. Allen v. Parish (3 O. 187), 107. Allen v. Russell (59 0. S. 137), 407. Ambrose v. Byrne (61 0. S. 146), 131. Andrews, etc., v. Andrews (7 0. S. 143), 627. Andrews v. Lembeck (46 0. S. 38), 22. Andrew's Will ( [X. Y.] 56 X. E. Rep. 529), 616. American, The, etc., v. Johnson (17 0. S. 640), 34. Angier v. Ash (6 Foster, 105), 27. Appeal of John Weinland (118 Pa. St. 37), 616. Appeal of Stoughton (88 Pa. St. 198), 245. Appleby v. Mulany (7 X. P. 120). Archer v. Brockschmidt (5 X. P. 349), 57.5. Armstrong v. Barton (42 Miss. 506), 59. Armstrong v. Heirs (8 O. 552), 125. Armstrong v. Huston (8 0. 552), 104. Arnold v. Donaldson (46 0. S. 78), 454. Arnold v. Donaldson (46 0. S. 73), 65, 497. Arrowsmith v. Harmoning (42 S. 254), 257. Atchinson v. Raiiroad (15 0. S. 21). Atlantic v. Campbell (40 S. 583), 513. Aucker v. Adams (23 0. S. 543), 55, 77. Avery v. Baura (W. 576), 5S8. Avery v. Dufrees (9 0. 145), 212. Avery v. Durfrees (9 0. 147), 455. Avery v. Xieman ( 7 X. P. 46 ) , 4S2. Avery v. Stites (W. 56), 586. Babcock v. Camp (12 0. S. 11), 62. Babitt, etc., v. Morgan (31 0. S. 273), 97. Backer v. Shawhan (41 0. S. 27), 48. Baird v. Kentloud (8 0. 24), 92. Baird v. Kirkland (8 0. 31), 107. Baird v. Ramsey (2 C. C. X. S. 492), 569. Bailery v. Hughes (35 0. S. 597), 568, 569. Bailey v. Hughes (35 0. S. 599), 573. xlv xlvi TABLE OF CASES. [References are to sections.] Bailey v. Culver (184 Mo. 531), 503. Baker's Appeal (107 Pa. St. 381), 616. Baker v. Baker (51 0. S. 217), 616. Baldwin v. Betzel (1 Iddings F. R. D. 138), 569. Baldwin v. Jacks (3 0. Dec. Reprint 545), 461. Baldwin v. Jacks (3 0. Dec. Reprint 546), 468. Baldwin v. Reese ( 8 A. L. R. 550), 509, 573. Baldwin v. Wilson (7 N. P. 506), 14. Ballinger v. Griffith (23 O. S. 619). 94. Baltimore, etc. v. Goodman ( 38 W. L. B. 237), 145. Bam v. Wick (14 0. S. 507), 341. Bancroft v. White (1 Gaines 190), 460. Bank, etc., v. Wheeling, etc. (11 C. C. 413), 103. Bank v. Bethel (32 W. L. B. 135), 158. Bank v. Carpenter (7 O. 21), 207. Bank v. Covert (13 O. 240), 37. Bank v. Hinton (12 O. S. 503), 465. Bank v. Hinton (21 O. S. 509), 462. Hank v. Ide (20 C. C. 665). 207. Bank v. Pierson (3 W. L. J. 132), 141. Bank v. Roosa (13 O. 334"), 101. Bank v. Stevens ( 1 O. S. 233), 69. Bank v. Tennessee (62 O. S. 564), 92. Bank v. Turpin (3 O. 514). 94. Bank v. Wallace (45 O. S. 152), 303. Bank v. Ward (11 O. 128), 20. Bank v. White (Wright, 51), 584. Banning v. Banning (12 O. S. 437), 018. Banning v. Kerby (7 A. L. R. 602), 627. Berber v. Hite (39 O. S. 185). 401. Bargor v. Cochrun (15 O. S. 460), 346. Barker v. Comp (71 Am. St. 186), 369. Barney v. NYw Alhany, etc. (1 Handy, 571), 33. Barr v. Klosterman (3 C. C. 431), 247. Barry v. Hovey (30 O. S. 348), 26. Barry v. Hovey (30 0. S. 344), 56. Barrett v. Copeland ( 18 Vermont, 69), 29. Barrington v. Alexander (6 O. S. 189), 111. Barthell v. Roderick (34 La. 518), 69. Bartholomew v. Lutherean (35 O. S. 567), 572, 578. Barton v. Morris (15 O. 408), 588. Barton v. Norris (15 O. 408), 597. Bass v. Spooner (45 Ind. 489), 62. Bassett v. Daniels (10 O. S. 617), 118. Bates v. Peoples, etc. (42 O. S. 655), 408. Bay v. Strimmel (7 O. D. 380), 507. Bazell v. Belcher (31 O. S. 572), 55. Bear v. Bookmiller (3 C. C. 484), 118. Beardsley v. Chapman (1 O. S. 119), 594.' Beaumont v. Ogden (24 O. S. 452), 99. Beckel v. Petticrew (0 O. S. 247). 377. Beggs v. Vandever ( W. 325 ) , 94. Behrens v. Behrens (47 O. S. 323), 018, 624. Beitman v. Mackenzie ( 1 W. L. B. 272). 156. Bell v. Dutoit (40 O. S. 330), 284. Bell v. Neely (1 Bail L. 312), 471. Bell v. Williams (1 Head 229), 69. Belle v. New York (1 O. Paige 49), 465. Belts v. Snyder (48 O. S. 492), 364. Bender v. Finkbone (25 0. S. 103), 94. Benner v. Benner (03 O. S. 220), 47. Bennett v. Williams (5 O. 461), 56. Benson v. Alley (8 O. S. 604). 41. Benson v. Cilly (8 O. S. 604), 206. Benton v. Shafer (47 O. S. 117), 11, 57. Benton t. Shaffer (47 O. S. 129), 310. TABLE OF CASES. [References are to sections.] xlvii Berbeck v. Spollen (10 Rec. 491), 306. Bercaw v. Cockerell (20 0. S. 163), 3(14. Bernsdorf v. Hardway ( 7 C. C. 378 ) , 376. Bettle v. Wilson ( 14 0. 257), 463. Betts v. Wise (110. 222). 452. Bigelow v. Bigelow (4 O. 428), 61. Bigelow v. Renkler (25 0. S. 609), 100. Biggs v. Annim (4 W. L. J. .540), 480. Biggs v. Beckell (12 0. S. 49), 212. I'.iggs v. Bickle (12 0. S. 472), 206. Biggins v. Jones (39 O. S. 995), 316 466. Black v. George (26 0. S. 629), 329. Black v. Hoyt (33 0. S. 203), 462. Black v. Kuhlman (30 0. S. 199), 454, 457. Black v. Kuhlman (30 0. S. 204), 46. Black v. Kuhlman (30 0. S. 196), 454. Blackburn v. Blackburn (8 0. 81), 586. Blair v. Broneley (5 Hare 542), 155 Blake v. Davis (20 0. 239). 580. Bliss v. Fuhroman (6 C. C. 203), 230. Bloar v. Piatt (78 0. S. 46), 626. Bloom v. Xoggle (4 0. S. 45), 364. Boal v. King (W. 223). 597. Boardman v. Gore (15 Mass. 335). 155. Bobo v. Richmond 125 0. S. 115), 58S. Bocher v. Shawan (41 O. S. 272), 56. Bohart v. Atkinson (14 O. 228), 316, 342. Boltz v. Stoltz (41 0. S. 540 1. 455, 450. Bonipart v. Rogers (24 Mo. 325), 29S. Bonner v. Proprietors (7 Mass. 475). 303. Boomeishine v. Stocklayer (Dayton 38). 585. Boon V. Miller (16 Mo. 457), 69. Boos v. Ewing (17 O. 500), 304. Boraston's Case (3 O. 18), 302. Borgart v. City (27 N. J. 568), 569. Boswell v. Sharp (15 0. 441), 62. Boswell v. Sharp (15 0. 447), 01. 63, 04. Boswewll v. Sharp (15 O. 464), 64, 60. Bothe v. Railway (37 0. S. 147), 582. Bothe v. Railway (37 O. S. 147 i, — Bott v. Burnell (11 Mass. 105). 27. Boyer v. Boyer (7 X. P. 153), 338. Bradfield v. Hale (07 0. S. 317). 584. Bradford v. Andrews (20 0. S. 208), 628. Bradford v. Andrews (20 0. S. 209), 029. Brady v. Krenger (8 S. Dak. 404), 464. Bramlege y. Winder (0 O. Dec. 319), 573. Bretz v. Moore (4 C. C. X. S. 550), 466. Brennen v. Eggly (23 Kan. 123), 9. Brewer v. Jones (44 Ga. 71), 09. Brewer v. Maurer (38 O. S. 543), 369. Brewton v. Cromwell (51 0. S. 579), 370. Brickell v. Miles (2 X. P. X. S. 154). 05. Brickell v. .Miles (7 X. P. X. S. 153). 114. Briggel v. Starbuek (34 O. S. 280), 207. Brisbane v. Stoughton (17 0. 482), 50. Broadfield v. Hale (07 0. S. 307 . 688. Broadfield v. Hale (67 < >. S. 323 |, 300. Brobst v. Skillen (16 0. S. 382 I, 321. Brock v. Gregg (63 0. S. 289), 270. Brodfield v. Hall (07 0. S. 323), 366. Brooks v. Todd ( 1 Hand. 109). 100. Broton v. Allston (4 W. L. M. 588), 28. Brown v. Brown (8 X. H. 93), 307. xlviii TABLE OF [References are Brown v. Connecticut, etc. (6 C. C. 02), 133. Brown v. Griffith (11 0. S. 329), 611. Brown v. Griffith ( 1 0. S. 329), 618. Brower v. Hunt (18 0. S. 311), 303. Brown v. Insurance (6 C. C. 62), 373. Brown v. Kern (6 N. P. 68), 454, 462. Brown v. Kern (6 N. P. 72), 47. Brown v. Kirkman (1 0. S. 110), 364. Brown v. Wheeler (17 Conn. 345), 297. Brownell v. Brownell (19 Wend. 307), 303, 305. Brownell v. Colbath (13 W. L. B. 35), 159. Browns v. Proprietors (7 Mass. 475), 305. Bruce v. Holden (21 Pick. 189), 27. Bruce v. Osgood (113 Ind. 360), 297. Brundage v. Beggs (25 O. S. 652), 30, 56. Brundidge v. Benton ( 17 W. L. B. 240), 611. Brush v. Joy (113 N. Y. 482), 288. Bryan v. Stump (8 Gratt. 241), 297. Buchanan v. Roy (2 O. S. 251), 51, 63. Buchanan v. Roy (2 O. S. 252), 59, 369. The Buckett, etc. v. The Eagle, etc. (21 C. C. 229), 34. Buckeye, etc. v. Fee ( 62 0. S. 543 ) , 142. The Buckeye Pipe Line Co. v. Fee (62 0.' S. 556), 141. Buell v. Cross (4 0. 327), 61, 64. Buhl v. Depot Co. (98 Mich. 596), 563. Building, etc. v. Clark (43 0. S. 427), 364. Building, etc. v. Lovings ( 142 Pa. St. 121), 333. Bullock v. Mitchell (16 W. L. B. 354), 159. Burbee v. Spollen ( 10 W. L. R. 494) , 305. CASES. to sections.] Burford v. Kursey (48 Miss. 643), 62. Burger v. Sullivant (2 X. P. N. S. 327), 611. Burnly v. Stephenson (24 0. S. 474), 12, ;8. Burquart v. Hubbard (11 0. 316), 434. Bushfield v. Myer (10 0. S. 334), 370. Butler v. Brown (5 0. S. 215), 92. Butler v. Birkey (13 0. S. 514), 9. Butterfield v. Walsh (21 O. S. 97), 71. Butzman v. Whitebeck (42 0. S. 223), 368. Byers v. Schlupe (51 0. S. 300), 29, 154. Byers v. Wackman (16 0. S. 440), 295. Caldwell v. Burton (7 N. P. 525), ' 145. Caldwell v. Caldwell (45 0. S. 513), 111. Caldwell v. Carthage (49 0. S. 334), 507. Caldwell v. Spellman (7 W. L. J. 7), 161. Caldwalader v. Evans ( 1 Disney, 585), 114. Calhoun v. Hays (8 Watts & S. 127), 297. " Calhoun v. Price (17 0. S. 96), 296. Callahan v. Rose (2 W. L. B. 281), 316. Callagan v. Burns (57 Me. 465), 618. Callaghan v. Callaghan (8 CI. & Finn. 374), 341. Callen v. Ellison 13 0. S. 466), 61. Callen v. Ellison (13 0. S. 455), 63, 64. Callihan v. Rose (2 W. L. B. 281), 409. Calvin v. Bruen (79 O. S. 610), 31. Campbell v. English (Wright 119), 250. TABLE OF CASES. [References are to sections.] xlix Campbell v. Park (32 0. S. 5G), 400. Carbit v. Carbit (4 W. L. B. 1006), 615. Card, etc. v. Stanage (45 0. S 417), 47. Carden v. Carden (107 N. C. 214), 154. Gardner v. Cone (16 0. S. 354), 626. Carey v. Kemper (45 0. S. 96), 72. Carlisle v. Longworth (5 O. 368), 413, 414 426, 431. Carmichael v. State (12 0. S. 553), 459. Carpenter v. Denoon (29 0. S. 379), 617. Carr v. Beckett (1 C. C. 72), 77. Carr v. Williams (10 0. 305), 212. Carroll v. Olmsted (16 0. 201), 191. Carter v. Day (59 0. S. 96), 296, 303, 304. Carter v. Goodin (3 O. S. 76), 457. Carter v. Lee (51 Ind. 292), 212. Carty v. Fenstermacber ( 14 0. S. 457), 14. Carty v. Fenstermacber ( 14 O. S. 459), 92. Gary v. Kemper (45 0. S. 93), 42. Case v. Beauregard (101 U. S. 688), 62. Cash v. Unbaugb (22 C. C. 409), 65. Casselly v. Rhodes (12 0. 88), 329. Cato v. Cato ( [S. C. 1890] 10 S. E. 1078), 337. Central, etc. v. Lagenbacb ( 1 N. P. 124), 142, 143. Chadsey v. Chadsey (26 111. App. 409), 337. Cbaffee v. Foster (52 O. S. 358), 407. Cbamberlain v. Jones (114 Ind. 458), 214. Cbamberlain v. Strong (3 W. L. G. 281), 157. Chapman v. Chapman (53 Am. St. 823), 462. Chapman v. Sollars (38 O. S. 331), 398. Chapman v. Sollars (38 O. S. 378), 431, 432. Chapman v. The Balton Steel Co. (4 C. C. 242), 9. Chase v. Manhardt (1 Bland Ch. [Md.] 350), 69. Childs v. Cbilds (10 0. S. 339), 366. Choteau v. Thompson (2 O. S. 114), 377. Christian v. Williams (35 Mo. App. 297), 9. Cincinnati v. Central (16 W. L. B. 375). 33. Cincinnati v. Central, etc. (25 W L. B. 375), 370. Cincinnati v. Commissioners ( 1 Disn. 4), 564. Cincinnati v. Lingo, et al ( 13 C. C. 337), 409. Cincinnati v. Thompson ( 10 W. L. B. 226), 343. Cincinnati v. Yatman (30 0. S. 276), 401. City v. Fox (60 0. S. 349), 10. City v. Fox (60 O. S. 340), 14. Cites v. Widner (35 0. S. 555), 106. Claffin v. Evans (55 0. S. 183), 264. Clapp v. Banking Co. (50 0. S. 528 ) , 284. Clapp v. Bromagbam (9 Cow. 561), 303, 305. Clark v. Hubbard (8 0. 382), 572. Clark v. Lindsey (47 0. S. 437), 409, 474. Clark v. Strong (16 0. 317), 56. Clason v. Ward ( 1 N. P. 218), 407, 474. Clements v. Noble (40 0. S. 41), 569. demons v. Clemons (37 X. Y. 59), 62. Cleveland v. Ohio (1 Disn. 469), 157. Cleveland, etc. v. Ball (5 0. S. 568), 513. Close v. St. Clair (38 0. S. 530), 273. Clyde v. Simpson (4 0. S. 445). 215. Coal Co. v. Bank (54 0. S. 233), 102. Coates v. Street (2 Ashm. 12), 298. Cochrun v. Fremey (65 0. S. 61), 94. 1 TABLE OF [References are Cochrun v. Loring (17 0. 409), 64, 142. Coe v. Erb (59 0. S. 259), 58, 83, 94, 104. Coe v. Knox, etc. ( 10 0. S. 412) , 92. Coe v. Peacock (14 O. S. 190), 92. Coe v. Pequa, etc. (10 0. S. 403), 92. Coghlin v. Coghlin (79 O. S. 71), 618. Cogshall v. Marine, etc. (63 O. S. 98), 92. Coggshall v. Marine Bank (21 0. S. 596), 584. Commercial Bank v. Western ( 1 1 0. 444), 92. Compton v. Weder (40 O. S. 130), 22. Conard v. Conard (38 0. S. 467), 346. Conger v. Black (11 0. S. 10), 460. Conley v. Creeghton (2 W. L. B. 4), 160. Conn v. Rhodes (26 0, S. 644), 7. Conover v. Porter (14 0. S. 450), 461. Conrad v. Everick (50 0. S. 471), 94. Conrad v. Enrich (50 0. S. 480), 58. Constable v. White ( 1 Handy, 45 ) , 159. Converse v. Starr (23 O. S. 493), 611. Converse v. Starr (23 O. S. 498), 611. Conch v. Cooch (18 O. 146), 623. Cook v. Dinsmore (5 C. C. 391), Kin. Cook v. Dinsmore (5 C. C. 5S5), 102. Cook v. Olds (19 C. C. 732), 159. Cook v. Prosser (14 C. C. 137), 430. Coons v. Clifford (58 O. S. 480), 370. Cooper v. Cedar Rapids Tower Co. 142 [a. 298), 309. Cole v. Mathews (38 W, L. P.. 223), 465. Coles v. Coles (13 X. J. Eq. 365), 3:! 3. Collier v. Beckley (33 0. S. 523), 56. Collier's Will (40 Mo. 287), 302. CASES. to sections.] Collins v. Baltimore, etc (7 N. P. 270), 15, 26, 33. Collins v. Collins (19 0. S. 471), 566, 569. Colwell, Admr. v. Bank (2 0. 229), 141. Corcoran v. Loring (17 O. 409), 61. Core v. Oil, etc. (40 0. S. 636), 51, 52. Corey v. Hayes (13 C. C. 185), 219, 336. Corey v. Hayes (13 C. C. 185), 336. Corry v. Lamb (45 0. S. 203), 462. Corry v. Lamb (43 0. S. 390), 476. Corwin v. Benham ( 2 0. S. 37 ) , 65. C.orwin v. Durham (2 0. S. 36), 94. Corwine v. Mace (36 0. S. 125), 315, 346. Cory v. Fleming (29 0. S. 147), 569. Costteman v. Relfe (50 Mo. 583), 245. Cote v. Peck (30 W. L. B. 5), 215. Cottage, etc. v. Bacon (2 N. P. 295), 426. Coudon v. Hurford (4 0. 133), 154. Couster v. Couster (7 X. P. 154), 338, 341. Covington v. Sargeant (27 0. 233), 62. Craig v. Fox (16 0. 563), 107, 118. Craig v. Fox (16 O. 564), 114, 118. Craig v. Oakes (4 Dana 6011), 342. Crane v. Ford (Hopk. [N. Y.] 114), 288. Creaser v. Young (31 0. S. 57), 159. Creed v. Lancaster Bank ( 1 0. S. 1), 341. Creditors v. Search (3 W. L. M. 320). Kill. Creighead v. Pike (4 Rec. 199), 296. Creps v. Baird (3 0. S. 277). 65, 398. (rest wait v. Dixon (5 Adol. & Sclc's 834), 303. Crocket v. Crocket (52 W. W. Rep. 299), 324. Crockett v. Crockett (2 0. S. 181), 473, 482. Crooks v. Finney (39 0. S. 57), 316. VBLE OF CASES. [References are to sections.] Crosby v. Allyn (5-Grienal 453), 343. Crumb v. Treuber ( 2 Cleve. L. Rep. 257), 142. Culver v. Culver (2 Root, 278), 303, 305. Culver v. Harper (27 0. S. (17), 460. Culver v. Harper (27 0. S. 464), 461, 462 465. Culver v. Rogers (33 0. S. 537), 570. Cummins v. Nutt (Wright, 713), 297. Cunningham v. Harper (W. 366), 586. Curren v. Taylor (19 0. 56), 302. Dabney v. Manning (3 O. 321), 70, 34*2. Dalton v. Davis (18 C. C. 878), 223. Daniels v. Stevens (1!) O. 222), 78. Daniler v. Daniler (1 Vein. 724), 463. Darling v. Hippie (12 0. C. D. 754), 582. Darling v. Hippie (12 0. C. D. 734), 588. Darlington v. Compton (20 C. C. 242). 567, 569, 572. Darrow v. Calkins (154 N. Y. 503), 464. Davacht v. Newson (3 0. 57 ) . 585. Davenport v. Widow (6 O. S. 466), 465. Davidson v. Wolf (9 O. 74). 302. Davis v. Brown (4 W\ L. M. 272), 462. Davis v. Duffie (8 Bosw. [N. Y.] 617), 9. Davis v. Hines (6 O. S. 473). 380. Davis v. Messenger (17 O. S. 231), 94. Davis v. Powell (13 O. 308). 594. Davisson v. Burgess (31 0. >S. 78), 219. Dawson v. Lawrence (13 O. S. 536), 296. Dawson v. Lawrence (13 O. 544), 304, 330. Dayforth v. Talbot (7 B. Monroe 623), 302. Dean v. Lowenstein (6 C. C. 587), 215. Dean v. Yates (22 O. S. 388), 160. Defrance v. Johnson (26 Fed. Rep. 891), 459. Delaney v. McFadden (7 W. L. B. 267), 295, 305. Dellinger's Appeal (35 Pa. St. 257), 463. Dengenhart v. Cracraft (36 < >. S. 572), 250. Dennison v. Foster (9 O. 130), 299. Denton v. Nanny (8 Barb. S. C. R. 624), 457. Derckson v. Reid (2 Handy 159), 101. Derush v. Brown (8 O. 415), 45S. Desnoyers v. Dennison ( 19 C. P. 320 | . — Dettor v. Holland (57 O. S. 505), 569. Devacht v. Newsome ( 3 O. 57 ) , 587, 597. Deval v. Culver (1 W. L. M. 588), 24. Devine v. Taylor (12 C. C. 723), 381. Dew v. Reid (52 O. S. 523). 611. Dew v. Reid (52 O. S. 526), 612. Dew v. Reid (52 0. S. 519), 621. De Witt v. DeWitt (67 O. S. 350), 496. Dickey v. Bcaty i 14 O. S. 389), 69. Diller v. Roberts (13 Serg. & R. 00). 27. Dingman v. Dingman (39 O. S. 172), 461. Directors, etc. v. City (15 O. S. 409), 14. Ditlow v. Cluncy (22 0. S. 436), 341. l)Man v. Bitch- (49 0. S. 588), 206. Duan v. Bitely (49 O. S. 594), 207. D6bell v. Looker (1 Hand. 574). 154. Docterman v. Elder (27 W. L. B. 195), 297. 324, 461. Dodd v. Mt. Adams, etc. (20 C. C. 709), 21. Dodson v. Cincinnati (34 O. S. 276), 504. Doe v. Dugan (8 O. 87), 320. lii TABLE OF [References are Doe v. Dugan (8 0. 106), 387. Doe v. Eall (7 O. [St. 2] 71), 584. Doe v. Pendleton (15 0. 735), 366. Doerr v. Forsythe (50 0. S. 72G), 496. Doll v. Barr (55 0. S. 113), 101. Dony v. Clark (55 0. S. 33), 214. Douglass v. Massie (16 O. 271), 55, 61. Douglass v. Massie (26 0. 271), 123. Douglass v. McCoy (5 0. 522), 61. Douglass v. McCoy (5 0. 527), 454, 455. Douglas v. Dangerfield (10 0. 152), 434. Douglas v. Dangerfield (14 0. 522), 426. Douglas v. Scott (5 0. 194), 569, 587. Douglas v. Scott (5 0. 195), 569. Dow v. Jewell (1 Foster [N. H.] 486), 41. Dow v. Jewell (18 N. H. 340), 297. Downs v. Long (79 Md. 382), 191. Doyle v. Brenneman (2 N. P. 415), 71. Drea v. Carrington (32 0. S. 595), 19. Dresback v. McArthur (7 0. [pt. 1st] 706), 585, 597. Dresback v. Stein (41 O. S. 70), 65. Drew v. Clark (Cook [Tenn.] 373), 69. Droone v. Fanning (2 Johns. Ch. 252), 111. Dueber v. Dalzell ( 19 W. L. B. 269) , 22. Duhme v. Meliner (18 C. C. 707), 567, 569. Dukes v. Dukes (4 C. C. 508), 194, 195. Dukes v. Dukes (5 C. C. 510), 454. Duncan v. Duncan (10 O. S. 181), 459. Dunlap v. Mitchell (10 O. 118), 125. Dunlap v. Robinson (12 0. S. 53»), r.:>. Dunlevy v. Schwartz (17 O. S. 640), 159. Dunn v. Hazlett (4 O. S. 435), 9. Dunn v. Rankin (27 O. S. 132), 384. Dun^.th v. Bank (6 O. 76), 480. Dunseth v. Bank (6 0. 79), 480. CASES. to sections.] Durango v. Durango (23 N. Y. 331), 460. Durlington's Appeal ( 13 Pa. St. 430), 297. Dutro v. Wilson (4 0. S. 101), 377. Duttenhofer v. Duttenhofer ( 12 0. D. N. P. 736), 462, 463. Duval v. Feiviger (1 C. S. C. R. 286), 462. Dwelle v. Hinde (18 C. C. 618), 9. Dwyer v. Gerlough (31 I. S. 158), 461. Dyer v. Garlow (31 0. S. 158), 371. Edwards v. Edwards (24 0. S. 202), 378. Edwards v. Davis (30 W. L. B. 283), 614. Egan v. Lumsden (2 Disn. 168), 141, 142, 154. Eggleston v. Harrison (61 0. S. 397), 262. Eldridge, et al. v. Forester (7 Mass. 252), 460. Elliott v. Lowhead (43 0. S. 171), 31, 145. Elliott v. Platter (43 0. S. 198), 28, 29, 462. Ellithorpe v. Buck (15 0. S. 72), 577. Ellithorpe v. Buck (17 0. S. 72), 568. Ellwood v. Northup (107 N. Y. 172), 347. El rod v. Bass (1 C. C. 38), 306. Elstner v. Fisher (12 C. C. 517), 346. Ely v. McGuire (2 0. 223), 584. Emmet v. Brophy (42 0. S. 82), 367. Emmet v. Yeigh (12 O. S. 335), 159. Enas v. Capps (2 111. 257), 41. Endel v. Leibrock (33 0. S. 254), 48, 51, 143, 159. Endel v. Leibrock (33 0. S. 267), 159. Endel v. Leibrock (33 0. S. 269), 50. Endel v. Leibroke (33 0. S. 270), 71. TABLE OF CASES. [References are to sections.] liii Enig v. Commonwealth (5 X. P. 471), 503. English v. Moneypenny (G C. C. 554), 47, 342, 346. ' Ennis v. Ennis (Dayton 117), 461. Ensign v. Rogencamp (13 Neb. 30), 24. Erwin v. Shuey (8 0. S. 509), 364. Estabrook v. Ryan (52 0. S. 318), 407. Estate of Barrett (49 W. L. B. 222), 459. Estate of Nicholson (2 X. P. X. S. 189), 617. Estate of Nicholson (49 W. L. B. 379), 617. Evans v. Hies (7 O. S. 233), 30. Evans v. McGlassen (18 La. 150), 71. Exchange Bank v. Eddy (10 W. L. B. 389), 370. Express Co. v. State (55 O. S. 69), 35. Falles v. Loughlad (14 W. L. B 56), 65. Farmer v. Wallis (45 0. S. 152) 296, 300. Farron v. Robinson (17 O. S. 242) 211. Farseman v. Haag (38 O. S. 102) 246. Farwell v. Root (36 W. L. B. 7) 29. Feather v. Strohecker (3 Penn. R 505), 324. Fee v. Big, etc. (13 O. S. 563) 30. 33. Fels v. Fels (1 C. C. 420), — Fergus v. Nash (48 \Y. L. B. 442), 4.")!). Ferguson v. Carter (9 Mo. App. 497), 212. Ferrell v. Anchauer (14 O. S. 80), 104. Feuchter v. Keyle (48 O. S. 357), 611, 617. Fideldy v. Disederana (26 O. S. n 1 4 ) , us. Field v. Seheiplin (17 Johns. Ch. 154), 245. Fike v. Guen (64 X. C. 665), 212. Finch v. Edmenson (9 Tex. 504), 206. Fincli v. Finch (10 O. S. 501), 455, 463. Finck v. Evers (25 O. S. 82), 7. Finner v. Cincinnati (4 X. P. 182), 507. Fin-stone v. Firestone (2 O. S. 415), 458. Fishburn v. Mulott (72 S. Car. 572), 13. Fisher v. Long (19 W. L. B. 139), 310, 464. Fiscus v. Moore (121 Ind. 547), 212. Fitch v. Campan (31 O. S. 646), 53. Fitch v. Heirs (2 O. 78), 114. Fitche v. Campman (31 O. S. 646), 26. Fithian v. Corwin (17 0. S. 110), 365. Fitzpatrick v. Forsyth (7 0. L. R. 411), 426, 431. Fitzgerald v. Grinwell (64 So. 261), 154. The Fleckmeyer, etc. v. The Com- mercial, etc. (7 N. P. 613), 34. Fleischman v. Walker (91 111. 3 IS), 60. Fleming v. Jordan (28 W. L. B. 332), 461. Fletcher v. Fletcher (15 C. C. 273), 56. Fletcher v. Huntington (8 X. P. 333), 455, 473. Follett v. Hall (16 0. 111). 94. Folsom v. Rhodes (22 0. S. 435), 462. Foorman v. Wallace (75 Cal. 552), 71. Foote v. Cincinnati (110. 408), 513. Foran v. Robinson (17 0. S. 243), 335. Ford v. Ford (Walker [Miss.] 505), 19. Ford v. Lanman (W. 437 K 155. Ford v. Langel (4 0. S. 46 1 J 588. Forest v. Jelke (7 ('. C. :i:; I, 580. Forest v. Jelke (7 C. C. 25). 588. Fosdick v. Barr (3 0. S. 471), 123, 364. Foster v. Douglass (8 0. 87), 61. liv TABLE OF [References are Fowler v. Lessee (2 O. S. 270), 49. Fowler v. Whiteman (2 0. S. 270), 61. Fowler v. Whitehead (2 O. S. 271), 588. Fox v. Fostoria (14 C. C. 471), 9. . Fox v. Pratt (27 O. S. 515). 462. Fox v. Pratt (27 0. S. 512). 461, 465. Fox v. Keeder (28 O. S. 181), 5G. J" razier v. Stenrod (7 Iowa 339), 206. Fredrick v. Pickett (19 Wis. 541), 245. Freeman v. Allen (17 0. S. 527), 303, 316. Fremper v. Barton (8 O. 418), 341. French v. Millard (2 0. S. 45), 65. Frische v. Cramer (15 O. 125), 366. Fritz v. Fritz (16 0. S. 218), 307. Frost v. Brisbane (19 Wend. 14), 154. Fryman v. Fryman (9 C. C. 95), 336. Fulton v. Hooker (7 W. L. B. 48), 96. G Galbraith v. Tracy (153 111. 54), 464. Galpin v. Page i IS Wall. 350). 245. Galti« v. Bagle (65 Barb. 383), 309. Gamble v. Warner (16 0. 371), 28. Gamble v. Wise (3 W. 1- B. 430), 507. GanB v. Thompson (11 O. S. 579). l.v.i. Garlick v. Strong (3 Paige, 440). 163. Garner v. White (23 (). S. 192). 159. Garrell v. Kelsy (40 I >. s. 117), 92. Garretson v. Hart (6 W. L. J. 315), 134. < larvin \. < lolumbus I •"> X. P. 2::7 > , 504. Garj v. May I 16 0. 66), 51, 196. I v \. Separatis, etc. (13 < ». S. Ill i. 295. |ya v. Separatists (13 G S. I 15), 331. Gass \. Frohman (8 L. R. A. 102), 471. CASES. to sections.] r Gel strop v. Moore (26 Miss. 206), 206. Genell v. Herons (70 O. S. 309), 92, 97. Genet v. Talmage (1 Johns. Ch. 561), 245. Genin v. Greer (10 O. 211), 10. German v. Doren ( 49 W. L. B. 242 ) , 306. Gibbin v. The Kanawha, etc., (2 C. S. C. R. 75 ) , 34. Gibbon v. Dougherty ( 10 O. S. 365), 56. Gibson v. Chillicothe, etc. (11 O. S. 311), 92. Gibson v. Chillicothe (11 O. S. 321), 92. Gibson v. Nonwalk (13 C. C. 431), 504. Giddings v. Barney (31 O. S. 80), 368, 374. Giesy v. Cincinnati (4 O. S. 326), 503, 513. Giesy v. Railroad (4 O. S. 308), 525. Gilbert v. Gilbert (13 C. C. 35), 47. Gilbert v. Armstrong (Dayton 149), 65. (Jill v. Pelkev (54 O. S. 349), 106. (Jill v. Pelkey (54 O. S. 348), 69, 123. Gillett v. Miller (12 C. C. 209), 7, 461. Gillett v. Miller (12 C. C. 212), 458. Gillespie's Lessee v. Johnson (Wright 232), 297. Gilliland v. Sellars (2 O. S. 223), 60. Gilpin v. Williams (25 O. S. 283), 191. (J lad well v. Hume (18 C. C. 845), 577. Glaney v. Glaney (17 O. S. 135), 616. Glass v. Greathouse (20 O. 503), 125. Glemser v. Glemser (.5 N. P. 170), 342. Glenny v. Langdon (98 U. S. 20), 294. Glover v. Ruffian (6 O. 255), 316. Glidden v. Joy (8 C. C. 157), 157. TABLE OF CASES. [References are to sections.] lv Godfred v. Godfred (30 0. S. 53), 30. Goebel v. Bank (3 N. P. 109), 18. Goodin v. Canal (18 0. S. 169), 573. Goodman v. Cincinnati (2 Disney 176), 370. Goodman v. McCall (2 C. S. C. R. 159), 94. Goodrich v. Haner (8 W. L. B. 11), 7. Gople v. Howard (12 0. S. 165), 160. Gotschall v. Ilohler ( 1 Iddings T. P. D. 27), 370. Gould v. Rose (17 C. C. 181), 28. Goudy v. Shank (8 0. 415) 320. Goundie v. Northampton Water Co. (7 Barr. 278), 303. Grady v. Gasline (48 0. S. 667), 31. Graham v. Burgraz ( 12 0. C. D. 747), 573. Graham v. Burgrozz ( 120 C. C. 747), 569. Grant v. Ludlow (8 <_. S. 1; 14 0. 8. 518), 455. Great Northern v. Mosop ( 17 Com. B. 140), 62. Gregg v. Weavor ( 6 0. S. 547 ) , 458. Green v. Cherrington ( 16 O. S. 548), 364. Green v. Graham (5 0. 264), 310, 404. Green v. Green ( 1 0. 535), 310, 464. Green v. Green (5 O. 279), 611. Green v. Green (5 O. 278), 622. Griffin v. Bixby (12 N. H. 454), 69. Griffin v. Underwood ( 16 0. S. 389) , 321. Griswold v. Frink (22 O. S. 79). 464. Grogan v. Garrison (27 0. S. 52). 460. Grogan v. Garrison (27 0. S. 59), 462. Gross v. Howard (52 Me. 192), 206. Grosvenor v. Austin (6 0. 103), 93. Gumbler v. Tremble i 14 0. 323). 56. Gurley v. Armentrout (6 C. ('. N. S. 156), 627. Gury v. Tannenwald (18 O. 481), 156. Gutshell v. Salsbury (W. 127), 65. Cuyton v. Shane (7 Dana 498), 342. Gwyne v Cincinnati (3 O. 24), 46. Gwvnn v. Nesswander (20 O. 552), * 426. Hackworth v. Robinson (31 0. S. 655), 13. Hadley v. Dunlap ( 10 0. S. 1 ) , 9. Hagerman v. Ohio (25 0. S. 186), 114. Hagerty v. Columbus (14 O. D. N. P. 1), 65. Haggart v. Morgan (1 Seldon 422), 154. Hall v. Hall (32 0. S. 184), 584. Hall v. Lowry. (Tappan, 149), 28. Hall v. Morris ( 13 Bush, 323 ) . 343. Hamilton v. Miller (31 0. S. 87), 7. Hamlin v. Bevans (7 0. [pt. 1]), 56. Hammond v. Davenport (16 0. S. 177), 49. Hammond v. Davenport (16 O. S.' 182), 61. Hancock v. Titus (39 Miss. 224), 302. Handy v. Insurance Co. ( 37 0. S. 366), 36. Handy v. Insurance (37 0. S. 367), 31. Handy v. Insurance Co. (37 O. S. 370). 18. Hannell v. Smith (15 0. 134), 434. Harbick v. Toledo (11 O. S. 219), 504. Hardy v. Somers ( 10 Gill & J. 316), 297. Harkrider v. Leiby (4 0. S. 002). 365. Tlarman v. Kelly I 19 O. 502). 30S, 346. Harmon v. Stockwell (9 0. 93). 421. Harper v. Crawford ( 13 0. 13), 584. Harper v. Harper (92 X. C. 300), 337. Harris v. Alderson (4 Sneed 250), 302. Harrison v. Carbon (14 Wyo. 246), 9. Ivi TABLE OF [Rererences are Harrison v. Carter (11 0. S. 339), 588. Harrison v. Chalfield (14 C. C. 599), 264. Harris v. Harris (36 Barb. 88), 62. Harrison v. King (9 O. S. 388), 159. Harrison v. Sabina (1 C. C. 149), 509. Hart v. Blackington (W. 386), 594. Hart v. Globe, etc. (37 O. S. 76), 380. Hart v. Johnson (6 0. 87), 586, 587. Hart v. Johnson (6 0. 540), 594. Harvey v. Jones (1 D. 65), 573. Hastings v. Columbus (42 0. S. 585), 24. Hatch v. Eailroad (18 0. S. 92), 513. Haven v. Horton (53 O. S. 345), 207. Havens v. Horton (53 0. S. 542), 276. Havens v. Horton (53 0. S. 342), 371. Hawley v. Bradford (9 Paige 200), 465. Bay v. Kites (11 0. 254), 346. Haymaker v. Haymaker (4 0. S. ' 272). 588. Hay ma n v. Beverstock (8 C. C. 477), 141. Baynes v. Baker (5 O. S. 253), 92. Hay.io v. llaynes (33 0. S. 618), 611. Haynes v. Koynes (33 0. S. 598), 617, 624. Hays v. Bank (W. 563), 28. Ilayw I v. Haywood (80 X. C. 12), 2H(i. lira, I v. Daniels (38 Kan. 1), 9. Headley v. Robey (6 0. 522), 92. Heads \. Sims (29 [ n d. 574), 69, 101. Heidenheimer v. Ogden (1 Disn. 35] i. 156'. Heikes \. Peepaugh I I W. L. J. 542), 180. Heirs \. i mith (3 0. 355), 41. Heller v. Hawley (S ( . C. X. S. 265), 586. Helmig v. Meyer (8 X. P. 31), 302, 307. CASES. to sections.] Hempy v. Ransom (33 O. S. 312), 77. Henderson v. Stettner (31 Kan. 56), 146. Herbert v. Bates (13 W. L. B. 565). Herf v. Shulze (10 D. 263), 7. Hershizer v. Florence (39 0. S. 516), 303. Hieatt v. Black (14 C. C. 194), 307. Hieatt v. Black (16 C. C. 194), 307. Higginbotham v. Thomas (9 Kan. 328), 245. Hill v. Bloom (41 N. J. Eq. 276), 337. Hill v. Kling (4 0. 137), 27. Hill v. Meyers (46 O. S. 183), 296. Hill v. Thatcher (3 How. Pr. 407), 3. Hiller v. Hohman (12 C. C. 216), 383. Hillgartner v. Gebhart (25 0. S. 557), 482. Hinde v. Whiting (31 0. S. 53), 346. Hinde v. Whiting (31 0. S. 531), 346. Hines v. McDermitt (91 X. Y. 451), 459. Hinton v. McNeil (5 0. 509), 62. Hitesman v. Donell (40 0. S. 287), 364. Hogg v. Bierman (41 0. S. 81), 295, 301. Hoglan v. Cohen (30 0. S. 436), 410. Hollester v. Bennett (9 0. 83), 421. Holliday v. Clun (9 C. C. 280), 154. Holloway v. Heddington ( 8 Sim. 324), 341. Holmes v. Gardiner (15 0. S. 167), :u;.->. Holmes v. Greene (7 Cray, 299), 154. Holl v. Lamb (17 0. S. 374), 623. Holt v. Kami) ( 17 O. S. 375), 627. Holroh v. Lasance (63 0. S. 58), (ill. Holtz v. Dick (42 0. S. 23), 459. Homo, etc., v. Haskins (6 X. P. 274), 136. Homer v. Myers (29 W. L. B. 403), 309. Hood v. Brown (2 0. 266), 364. TABLE OF CASES. [References are to sections.] lvii Hoover v. Gibson (24 0. S. 380), 160. Hoover v. Haslage (5 N. P. 90), 139. Hornback v. Cincinnati, etc. (20 0. S. 81), 584. Horstman v. Eitter (0 N. P. 470), 309. Hosiner v. Sturgis (31 0. S. 657), 341. Houghton v. Houghton ( 14 Ind. 505), 463. Householder v. Kansas, etc. (6 X. P. 520). 37. Houts v. Showalter (10 O. S. 125), 32a. Houts v. Showalter (10 O. S. 127), 107. Howard v. Levering (8 C. C. 614), 9, 572. Howe v. Fuller (19 O. 51), 302. Howe v. Hartness (11 0. S. 449), 56. Hoyman v. Beverstock (8 C. C. 473), 156. Hubbard v. Clark (8 0. 3S2), 573. Hubbard v. Redort (3 Vt. 207), 297. Hubbell v. Admr. (S 0. 120), 71. Hubbell v. Broadwell (8 0. 120), 70. Hul.st v. Bates (13 W. L. B. 565), 588. Hughy v. Horrel (2 0. 231). 413. Hull v. Standard Coal & Iron Co. (7 X. P. 157), 18. Humphries v. Hoffman (33 0. S. 395 i. 77, 433. Hunter v. Borck (51 0. S. 320), 399. Hurst v. Fisher (64 0. S. 530). 125. Hutchiis v. Davis (68 0. S.. 168), 461. Hutchins v. Davis (68 0. S. 160), 464. Hutchinson v. Hutchinson (15 0. 301). 99. In re Alley (25 W. L. B. 89), 564. In re Andrews (62 X. — 1), 616. In re Beck (11 0. F. D. 440). 375. In re Blair (84 Hull 581), 616. 'in re Brewer (3 X. P. 12), 273 In re Burrows (8 N. P. 358), 614. In re Cogly (107 Fed. Rep. 73), 294. In re Commercial ( 6 O. D. 105 i . 268. In re Conway (124 X. Y. 455). 616. In re Counsel Fees (7 X. P. 624), 627. In re Davis (21 C. C. 720), 464. In re Estate of Cavagna (S X. P. 557), 335. In re Estate of De Serissy ( 8 X. P. 694), 334. In re George (5 C. C. 98), 524. 528. In re Irwin (71 O. S. 396), 61. In re Jones (5 X. P. 102), 267. In re Mahony (34 Hun 501), 206. In re Mills (7 X. P. 507), 263. In re O'Xeil (91 X. Y. 516), 616. In re Perrin (4 X. P. 262), 264. In re Railway Co. (19 C. C. 308), 564. In re Reynolds' Estate (7 X. P. 626), 302, 336. In re Roberts (111 X. Y. 372). 337. In re Slane (42 W. L. B. 89), 105. In re Slyer (3 Am. Bank Rep. 124), 294* In re Underbill (21 W. L. B. 270), 614. In re Walke (110 Cal. 37), 616. In re Whitney (153 X. Y. 250). 616, In re Will Contest (7 X. P. 288), 627. In re Worstall (6 X. P. 526 i . 92. Insurance Co. v. Sampson (38 O. S. 672). 70. I run. etc. v. Ironton (10 O. S. 200), 504. Iron, etc. v. Murray (38 0. S. 323), 376. Irwin v. Jacques (71 0. S. 305), 611. Irwin v. Jeffars (3 0. S. 389), 70, 78, Irwin v. Smith (17 0. 243). 56. [sham v. Gibbons (1 Bradford 69), 154. Jackson v. Edwards (7 Pais*e 3S6), 324. lviii TABLE OF [References are Jackson v. Jackson (16 0. S. 163), 563. Jackson v. McGruder (51 Mo. 55), 212. Jackson v. Pierce (10 Johnson 413), 343. Jackson v. Woltermeir (5 Cow. 301), 460. Jacobson v. Miller (41 Mich. 90), 62. Jacques v. Commissioners (2 Disn. 121), 462. Jashenosky v. Volraith (59 O. S. 540), 123. Jefferson v. Pursell (8 Rec. 744), 15". Jeffries v. Jeffries (1 Craig & Phelps 138), 341. Jeffry v. Yoxtheimer ( 12 C. C, 568), 468. Jelke v. Goldsmith (52 O. S. 499), 78. Jenk v. Howland (3 Gray 537), 342. Jenkins v. Artz (7 N. P. 371), 572. Jennings v. Jenkins (9 Ala. 285), 212. Jennings v. Wood (2 O. D. 261), 364. Jewett v. Fieldheiser (68 O. S. 523), 454, 457, 461. Jewett v. Fieldheiser (68 0. S. 534), 468. Jewett v. Perette (127 Ind. 97), 309. Johns v. Johns (1 C. S. 350 ) . 462. Johnson v. Johnson (1 C. C. 522), 463. Johnson v. Petitt (1 C. S. C. R. 25), 407. Johnson v. Stewart (29 O. S. 498), 432. Jones v. Allen (6 N. P. 518), 467. Jones v. Uevore (8 O. S. 430), 474. Jones v. Jones ( S O. S. 430), 462. Jon.- v. Kilbourne (4 O. S. 401), 263. Jones v. Stanton (II Mo. 433). 324. Jones v. Timmons '21 O. S. 596), 584. Jones v. Wright (1 C. C. N. S. 61), 193. CASES. to sections.] Jordan v. Cheney (74 Me. 359), 365. Jordan v. Jordan (8 C. C. 431), 346. Josly v. Spellman (12 W. L. B. 7), 401. Joslyn v. Sedan (2 W. L. P. 147), 014. Joyce v. McAvoy (31 Cal. 274), 569. Julier v. Julier (62 O. S. 109), 496. Julier v. Julier (62 O. S. 90), 497. Kane v. Parker (4 Wis. 123), 314. Kay v. Watson (17 O. 27), 52. Keen v. Hall (31 O. ,S. 107), 263. Keen v. Keen, L. R. (3 P. & D. 105,),— Kelbrith v. Diss (24 0. S. 379), 95. Keller v. Carr ( 42 X. W. Rep. 292 ) , 154. Kelley v. Strayer ( 15 Hun 97 ) , 143. Kelley's Estate ( 1 Abb. New. Cases 102), 206. Kellogg v. McLaughlin (8 O. 114), 413, 431. Kelly v. Duffy (31 O. S. 437), 273. Kelly v. Vincent (8 O. S. 420), 90. Kenielly v. Cowee (4 N. P. 105), 459. Kemper v. Campbell (44 O. S. 210), 364. Kenly v. Bryan (110 111. 562), 212. Keows v. Keows (2 W. L. M. 418), 7. Kerr v. Commissioners (51 0. S. 593), 564. Kerr v. Hooks ( W. 610). 315. Kerr v. Leydecker (51 O. S. 240), 366. Kerr v. Mount (28 N. Y. 659), 143. Ketcham v. Fitch (13 O. S. 201), 65, 410. Ketchum v. Shaw (28 O. S. 503), 454, 465. Ketchum v. Shaw (28 O. S. 506), 468. Ketherington v. Graham (6 Bing- ham 134), 471. TABLE OF CASES. [References are to sections.] lix Ketterman v. Metzger (3 C. C. N. S. 224), 614, 615. Ketznuller v. Van Rensellear ( 10 O. S. 63), 465. Keyle v. Feuchter (50 O. S. 424), Kilgoe v. Crawford (51 111. 249), 333. Kilpatrick v. Humphries (8 N. P. 245), 611. Kimball v. Homan (74 Mich. 699), 563. Kime v. Addesperger (2 C. C. N. S. 27), 615. King v. Bell (13 Neb. 409), 3. King v. Longworth (7 0. [Pt. 2] 25), 370. King v. Nicholas ( 16 0. S. 70) , 321. King v. Safford (19 O. S. 587), 368. Kingman v. Lawyer (40 0. S. 109), 262. Kingsborough v. Towsley (56 O. S. 458), 61. Kingsborough v. Towsley ( 56 0. S. 462), 64, 69. Kingsbury v. Towsley (56 O. S. 450), 62. Kinnear et al. v. Beatty (65 O. S. 264), 563. Kinsey v. Burgess, etc. (4 N. P. 293), 14. Kintz v. Friday (4 Dem. 540), 337. Kirby v. Kirby (12 Cir. D. 736), 314. Kirk v. Whittaker (22 O. S. 115), 159. Kitzmiller v. Vanrensellaer (10 O. S. 63), 457. Kleaver v. Sewall ( 33 W. L. B. 56 ) , 346. Kling v. Ballentine (40 O. S. 391), 454, 465. Knickerbocker v. De Frust (2 Page 304), 41. Knight v. Atkinson (2 Tenn. 384), 62. Knowls v. Knowls ( [Va.] 9 S. E. Rep. 584), 337. Knox, etc. v. Bowersox (6 C. C. 275), 14, 17. ■ Knox v. Jenks (7 Mass. 488), 206. Koelsch v. Mixer (52 0. S. 207), 59, 60. Koernahan v. Mahony (53 0. S. 133), 365. Kotch v. Stephens (1 Cleve. 10), 114. Kramer v. Forrester (32 W. L. B. 199), 9. Kramer v. Toledo (53 O. S. 436), 528. Kraner v. Forester (1 O. S. 619), 13. Kraner v. Fouster (32 W. L. B. 199), 367. Krug v. Bishop (44 O. S. 221), 77. Krumberg v. Cincinnati (29 0. S. 69), 509. Krusella v. DeCamp (15 C. C. 494), 83. Kuhm v. Neiberg (40 O. 8. 631), 273. Kuntz v. Boudendestle ( Dayton 224), 617. Kyde v. Exchange Bank (56 Neb. 557), 13. Kyle v. Thompson (11 O. S. 616), 364. LafTerty v. Byers (5 O. 458), 413, 414, 434. Lafferty v. Shinn (38 O. S. 46), 211, 335. LaGrange v. Ward (11 O. 258), 64. Lake, etc. v. Cleveland ( 32 W. L. B. 206), 572, 573. Lamb v. Boyd (4 C. C. 501), 572. Lamb v. Boyd (4 C. C. 499), 575. Lambert v. Sample (25 0. S. 336), 28. Lamkin v. Knapp (20 O. S. 154), 497. Lamont v. Home Ins. Co. (10 W. L. B. 413), 9, 18. Lang. etc. v. Barnard (6 W. L. B. 635), 43, 326. Lanker v. Mattison (20 C. C. 229), 627. Lanman v. Crooker (97 Ind. 164), 69. Larrimore v. Clemmer (31 O. S. 499), 7, 55, 368. lx TABLE OF [References are Lariwe v. Beam (10 0. 498), 480. Larvell v. Stevenson (19 C. C. 449), 147. Larwell v. Burke (19 C. C. 449), 48, 50. Lauer v. Cincinnati (4 N. P. 252), 20. Lawler v. Wheets (1 Handy 40), 51. Lawrence v. Belger (31 0. S. 175), 94. Lawyer v. Smith (8 Mich. 412), 618. Leaf v. Mariatt (29 W. L. B. 221), 9. Leary v. Fletcher (1 Iredell, 259), 245. Lee v. Ropers (54 0. S. 678), 365. Leebman v. Ashbacker (36 0. S. 94), 14. Lemert v. Clark (ICC. 571), 118. Lessee v. Barrows (2 0. S. 242), 206. Lessee v. City (18 0. 323), 49. 149), 90. Lessee v. Dibble (10 0. 434), 124. Lessee v. Emerick (6 0. 391), 298. Lessee of Foster v. Executors (8 0. 107), 296. Lessee v. Hemphill (3 O. 240), 597. Lessee v. Home (5 O. S. 318), 323. Lessee v. Longworth (11 O. 236), 123. Lessee v. Loring (17 O. S. 423), 64. Lessee v. McCoy (8 O. 128) 122. Lessee v. Merritt (5 0. S. 308), 320. Lessee v. Mooreland (15 0. 445), 64. Lessee v. Norton (1 0. 278). lis. Lessee v. Oosterout (1 0. 32), 107. Lessee v. Reed (5 0. 221), 100. Lessee v. Whitman (2 0. S. 270), 51, 63. Lessee, etc. v. Dugan (8 0. 87), 342. Lessee, etc. Loring (7 O. 425), 141. Lessee, etc. v. Reffire (6 0. 255), 342. Lessee of Darby \ Carson (9 0. Lessee of Merrit v. Home (5 0. S. 318), 326. CASES. to sections. j Lessee of White v. Sayre (2 0. 110), 298. Lester, etc. v. Kelly ( 67 N. Y. 409 ) , 616. Lewis v. Lewis (15 0. 715), 41. Leyman v. Leyman (19 C. C. 054), 312, 333. Lible v. Maxwell (4 0. S. 236), 364. Lime v. Bryer (6 B. C. 104), 616. Limson v. Limson (114 111. 603), 337. Lindsay v. Zanoni (6 C. C. 477), 295. Linton v. Laycock (33 0. S. 129), 302. Linton v. Laycock (33 O. S. 128), 295, 302, 346. Little v. Eureka (4 A. L. R. 229), 263. Little, etc. v. Collett (6 0. S. 183), 504, 573. Littleton v. Marshall (36 W. L. B. 301), 29. Livingston v. Livingston (2 J. Ch. R. 537), 463. Livingston v. Newkirk (3 Jobns. Ch. 316), 212. Lloyd v. Cover (1 Duch. 47), 297. Locke v. Stearns (1 Met. 562). 155. London v. Payne (41 0. S. 303), 342. Long v. Long (19 111. 383), 337. Long v. Long (30 111. App. 559), 337. Long v. Long (142 N. Y. 545), 206. Long v. Mulford (17 O. S. 484), 72, 342. Long v. Mulford (17 0. S. 485), 42 Long v. Mulford (17 0. S. 503), 41. Longley v. Stump (11 W. L. B. 247), 215. Longworth v. Flagg (10 0. 302), 366. Longworth v. Wolfinger (W. 216), 587. Longworth v. Wolfington (6 0. 9), 594. Loomis v Building (37 0. S. 394), 94. 1. drain v. Lemning (3 0. D. 624), 304. Loring v. Illesey (1 Cal. 27), 58. Loring v. Melendy (11 0. 356), 92. TABLE OF CASES. [References are to sections.] lxi Loudenback v. Collins (4 0. S. 251), 62. Lowe v. Maurer (1 Cleve. 157), 312, 326. Lowe v. Phillips (21 0. S. 657), 333. Lowmiller v. Fouser (52 0. S. 123), 569. Ludlow v. Barr (3 0. 388), 585, 594. Ludlow v. Cooper (4 0. S. 1), 310, 464. Ludlow v. Cooper (4 0. S. 9), 464. Ludlow v. Johnson (3 0. 553 ) , 206. Ludlow v. Kidd (3 0. 541), 56. Ludlow v. McBride (3 0. 240), 579. Lules v. Fleming ( 1 Deb. Eq. E. 185), 463. Lusby v. Jones (31 W. L. B. 70), 572, 574. Lynch v. Baxter (4 Tex. 431), 297. Lynch v. Hickey (13 111. App. 139), 206. Mc McAffee v. Phillips (25 0. S. 374), 211. McAllister v. Davy (5 N". P. 274), 156. McAllister v. Hartzell (60 0. S. 83), 588. McAlpine v. Woodruff (11 0. S. 129), 482. McArthur v. Franklin (16 0. S. 194), 480. McArthur v. Franklin ( 15 0. S. 485), 457, 468. McArthur v. Franklin (16 0. S. 193), 454. McArthur v. Porter (1 0. 99 ) , 465. McArthur v. Gallagher (8 0. 512), 585. McBain v. McBain (15 O. S. 349). 70. McBain v. McBain (15 0. S. 337), 118, 303. McBride v. Murphy (14 0. S. 349), 70. McBride v. Longworth (14 0. S. 349), 71. McCormick v. Alexander (2 0. 66), 95. McCall v. Pixley (48 0. S. 379), 206, 215. McClelland v. Bishop (42 0. S. 113), 370. Medoskey v. Strickland ( 7 Iowa, 257),' 3. McComb v. Thompson (42 O. S. 139), 92, 96. McConner v. Carey ( 48 Pa. St. 345 ) , 297. McCormic v. Cummins (59 Neb. 330), 9. McCune v. Snyder (8 O. D. 316), 375. McClure v. McClure (2 Harris 137), 303. McDonald v. Cincinnati (4 X. P. 253), 304. McDowell v. Nuns (15 W. L. B. 359), 159. McFarlan v. Mills (4 W. L. B. 1064), 156. McGill v. Deming (44 0. S. 652), 452. McGill v. Deming (44 0. S. 645), 477, 496. McGillicuty v. Cook (5 Blckf. 179), 212. McGuines v. Rece (48 la. 361), 245. McGuire v. Ely (W. 520). 70. McKean v. Ferguson (51 0. S. 207), 497. MeKenzee v. Perrell (15 O. S. 162), 573. McKibben v. Day (98 X. W. 845), 9. McKinney v. McKinney (8 0. S. 423)', 584. McLane v. Colburn (2 X. P. N. S. 257), 159. McLane v. Placerville (66 Cal. 606), 288. McLaren v. Stone (18 C. C. 854), 854. McMahon v. Davis (19 C. C. 245), 70. McMahon v. Davis (19 C. C. 242), 71. McMahon v. Gray (5 L. R. A. 748), 455. McMahon v. Gray (150 Mass. 289), 455. Ixii TABLE OF CASES. {References are to sections.] McMaster v. Keller ( 1 C. C. 476), 629. McMasters v. Smith (5 W. L. M. 25). 295. McMasteis v. Smith (5 W. L. M. 28). 295. McMillan v. Robbing (5 0. 28), 584. McMillan v. Robins (5 0. 28), 407, 43(1. McNeely v. Laugan (22 0. S. 32), 569, 5. :. McRoberts v. Lockwood (49 0. S. 374). 346. McVeigh v. Ritenour (40 0. S. 107), 92, 584. McWhinney & Ryan v. Swisher (58 0. S. 378), 257. M Mack v. Bonner (3 0. S. 366), 346. Mack v. Scotchman (7 A. M. L. Rec. 662), 94. Mader v. Apple (80 0. S. 697), 616. Magee v. Beatty (8 0. 396), 364. Magruder v. Esmay (35 0. S. 221), 413. Magruder v. Esmay (35 0. S. 213), 415, 421, 431. Mabam v. Coombs (14 0. 428), 364. Maholm v. Marshall (29 0. S. 611), 9, 19, 30, 367. Maholm v. Marshall (29 0. S. 616), 9. Mahonings Bank's Appeal (32 Pa. St. 160). 58. Main v. Streng (13 0. I). X. P. 446). 342, 569. Maines v. Henkle (3 W. L. M. 597), 574. Maklcy v. Whitmore (61 <>. S. 587), 410. Mallery v. Russel (71 la. 63). 309. Manarr v. Parish (26 0. S. 636), 252. Mandel v. McClave I 16 <». S. 414), 453. Mandel v. McClave (46 0. S. 407), 454. 455. 465. Mandel v. McClave (46 0. S. 107), 324. Mane v. Rider (51 Pa. St. 377), 297. Manley v. Hunt (1 O. 257), 92. Mannix v. Elder (1 C. C. 61), 284. Mansfield v. Bartlett (65 0. S. 451), 563. Mansfield v. Mclntyre (10 0. 29), 463. Mansfield v. Mclntire (10 0. 27), 496. Mansfield v. Post (22 C. C. 644), 139. Mansfield v. Post (22 C. C. 732), 159. Moore v. Eagles (1 Murph. 302), 298. Mare v. Robinson (6 O. S. 302), 61. Marsh v. Dellinger (127 N. Car. 360), 191. Marsh v. Marsh (4 A. L. R. 25), 40. Marsh v. Reed (10 0. 347), 569. Marsh v. Reed (10 O. S. 47), 578. Martin v. Alter (42 0. S. 94), 92. Masier v. Harmon ( 29 O. S. 58 ) , 611. Mason v. Alexander (44 0. S. 334), 77. Mason v. Pierson (69 Wis. 585), 214. Massie v. Donaldson (8 0. 377). 41. Massie v. Long (2 0. 287), 434. Massie v. Matthews (12 0. 352), 41. Mathers v. Bull (19 C. C. 657), 412. Mathers v. Lewis (18 C. C. 134), 412. Mathews v. Cincinnati (3 C. C. 284), 94. Mathews v. Thompson (3 0. 272), 106. Maurer v. Parish (26 0. S. 366), 257. Mawick v. Wolf (3 W. L. B. 458), 30. 145. Mawicke v. Wolf (2 W. L. B. 87), 143. Mayee v. Young (40 Miss. 164), " 454. Mayor or Wick (15 O. S. 548), 170. Max v. Schotchman (7 Am. L. Rec. 665), 94. TABLE OF CASES. [References are to sections.] lxiii Maxwell v. Holmes ( 1 N. P. N. S. ] Minnick v. Matchett ( 10 Kan. App. 170), 9. Minning v. Ratdorff (5 Pa. St. 503 ) , 302. Minshall, J., in Railway v. Cronin (1 W. L. B. 315), 375. Missionary Society v. Ely (50 O. S. 405), 611." Mitchell v. Dunlap ( 10 O. 117), 111. Mitchell v. Winslow (2 Story (530), 455. Mohr, etc. v. Insurance Co. ( 12 Fed. Rep. 474), 34. Mohr, etc. v. Lomar, etc. ( 7 W. L. B. 341), 37. Monahan v. Vandyke (27 111. 154), 206. Moneghan v. Moneghan (25 O. S. 325). 100. Monroe v. Barclay (17 O. S. 302), 615. Moon v. Lancaster (W. 35), 455. Moor v. Ogden (35 O. S. 430), 99. Moore v. Armstrong ( 10 O. 11 ). 588. Moore v. Beckwith (14 O. S. 129), 215. Moore v. Burnett (11 O. 334). 584. Moore v. Freeman (50 O. S. 592), 339. Moore v. Mayor (4 Seldon, 110), 324. Moore v. Rettenhouse ( 15 O. S. 310). 92. Moore v. Robinson (6 O. S. 302), 55, 64. Moore v. Starks ( 1 O. S. 371). 41. Moore v. Starks ( 1 O. S. 36.) i. fin. 63, 64. Moore's Lessee v. Vance (1 O. 10). 463. Morelein, etc. v. Westmeir (4 ('. ('. 296), 409. Morgan v. Burnett (18 O. 535). 41. Morgan v. Hays (10 W. L. J. 83), 156. Morgan v. Kenney (38 O. S. 613), 94. Morgan v. Kenney (38 O. S. 610), 263. Morgan v. Staler (11 O. 389). 306, 307. Morison v. Kinstra (55 Miss. 71), 245. 13). 95 Mead v. McGraw (19 O. S. 55), 77. Mears v. Mears (15 O. S. 90), 611, 615, 622. Mechanics v. O'Connor (29 O. S. 655) , 65. Mechanics v. O'Connor (20 0. S. 652), 120. Medical College v. Ziegler ( 17 0. S. 521). 463. Meeritz v. Insurance (8 X. P. 422), 459. Meese v. Keefe (10 O. 362), 628. Meir v. Bank (55 O. S. 447), 101. Menkins v. Menkins (23 Mo. Rep. 252). 321. Mercer v. Cunningham (53 O. S. 361). 276. Mercer v. Cunningham (53 O. S. 353), 273. Mercer v. Jones (3 Camp. Rep. 477), 321. Merrill v. Home (5 O. S. 318). 43. Merrif. etc., v. Borden (2 Disney, 503), 114. Meyers v. Barrow ( 3 C. C. 92 ) , 626. Meyers v. Hewitt (16 O. 449). 92. Middleton v. Westenney (7 C. C. 393). 580, 585. Middleton v. Westenney (7 C. C. 268), 586. Miesse v. McCoy (17 O. S. 225). 24. Miller v. Cincinnati (5 C. C. 583), 569. Miller v. Erdhouse (2 W. L. B. 84), 63. 70. Miller v. Frazor (42 N. C. 192), 309. Miller v. Miller (16 O. S. 531), 463. Miller v. Peters (25 O. S. 270), 324, 466. Miller v. Rouse ( 7 N. P. 300), 314. Miller v. Wilson (15 <">. 1080). 341. 461. Miller v. Woodson (14 O. 51S), 454. Mills v. Life, etc. (4 W. L. B. 935), 105. Mills v. Van Vorhees ( 20 X. Y. Rep. 415) . 457. Miles v. Parks (49 O. S. 370). 118. Milson v. Rouk (57 O. S. 422), 90. Miners v. Morse ( 15 0. 568 ) , 92. lxiv TABLE OF CASEa*. [References are to sections.] Morris v. Daniels (35 O. S. 406), 67, 71. Morrison v. Balkans (8 W. L. R. 572), 310. Morton v. Gray (1 W. L. M. 408), 121. Morton v. Sterrit (4 N. L. G. 132), 15G. Mosterton v. Beasley (3 0. 301), 444. Moyes v. Nelson ( 7 N. P. 607 ) , 626. Mudlow v. McBride (3 O. 240), 585. Munday v. Vail (43 N. J. L. 41S), 59, 60. Mundy v. Mundy (2 Ves. Sen. 122), 463. Murdock v. Lentz (34 O. S. 589), — Mnrna v. Murna (23 O. S. 602) , 629. Murphy v. Murphy (12 O. S. 407), 462, 463. Murphy v. Swadener (33 O. S. 86), 7. Murray v. Murray (5 A. L. R. 256), 569. Murray v. Pandy (66 Mo. 606), 245. Mussy v. Budd (11 C. C. 552), 462. Mussey v. Budd (11 C. C. 553), 454. Mussy v. Stunnel (15 C. C. 439), 47. Myers v. Aikens (8 C. C. 228), 401. Myers v. Smith (29 O. S. 120), 145. Myers v. Hewitt (16 O. 449), 94. Myers v. Warner (18 O. 519), 341. N Nail v. Furnace (46 0. S. 544), 563. Nat'l. Bank v. Railway (21 0. S. 221), 147. Nave v. Smith (95 Mo. 596), 297. Needles v. Needles (7 0. S. 432), 341. Neff v. Cincinnati (32 0. S. 215), 313. Neff v. Cox- (5 N. P. 413). 94. New, etc. v. Crocker (7 C. C. 327), 614. Newall v. Sadler (16 Mass. 122), 342. Newberg v. Munshower (37 0. S. 617). 55. Newman v. Cincinnati (18 0. 323), 61. Newcomb v. Receiver (23 W. L. B. 75), 134. Nicholl v. Railroad (12 N. Y. 121), 455. Nichols v. Balser (1 C. C. 48), 314. Nimmons v. Westfall (33 0. S. 226), 191. Ninmons v. Westfall (33 O. S. 213), 194. Nixon, etc. v. Nash, etc. ( 12 0. S. 652), 93. Northern v. Maumee ( 2 N. P. 260 ) , 159. Northern, etc., v. Roosa (13 0. 335), 95. Norton v. Beaver (5 0. 178), 99. Norwood v. Norwood (4 Har. & J. 112), 298. Norwood v. Ogden (15 C. C. 539), 504. Nyce v. Obertz (17 0. 77 ) , 480. O'Donohue v. Corby (22 Mo. Rep. 394), 321. Ohio v. Commissioners (40 0. S. 331), 132. Ohio v. Waters (65 0. S. 157), 263. Ohio, etc. v. Trust Co. (13 0. 220), 116. Ohio, etc. v. Goodin (10 0. S. 566), 118. dinger v. Hoffman (6 W. L. J. 490), 407, 475. Oliver v. Jones (3 N. P. 130), 46. Oliver v. Jones (3 N. P. 130), 462. Omwake v. Jackson (5 N. P. 119), 371. Omwake v. Jackson (15 C. C. 615), 56. O'Neal v. Blessing (34 0. S. 34), 39. Ordway v. Downard (51 Pac. Rep. 1047), 369. Orlap v. Schuler (4 C. C. N. S. 611). 159. Osburn v. Bartram (15 C. C. 224), 77. Osborne v. Lidy (51 O. S. 96), 11, 18, 19. TABLE OF CASES. [References are to sections.] lxv Overholser v. Wright (17 0. S. 157), 341. Owens v. Hall ( 13 0. S. 571), 11. Oyler v. Scanlon (33 0. S. 308), 195. Paine v. Mason (7 0. S. 198) ;64. Paine v. Mooreland (15 0. 436), J3, 142. Paine v. Mooreland (15 O. 435), 61, 64, 92. Paine v. Skinner (8 0. 159), 206, 569. Park v. Collett (1 Clev. L. Rep. 92), 94. Parker v. Miller (9 0. 108), 92. Parker v. Van Darn, etc. (23 C. C. 444] '. 33. Parmeter v. Burkley (28 0. S. 32), — Parsons v. Parsons (52 0. S. 470), 341. Partridge v. Harrow (27 la. 96), 69. Patterson v. Gulnare (2 Disn. 505), 159. Patterson v. Hickey (32 Ga. 156), 618. Patterson v. Patterson (Dayton 288), 307. Patterson v. Prother (11 0. 35), 594. Patterson v. Wilkins (W. 501). 6. Pattison v. Jordan (3 C. C. 233), 570. Patton v. Patton (39 0. S. 590), 302. Patton v. Sheriff (2 0. 395), 101. Pavne v. Becker (87 N. Y. 153), 455. Penn v. Cox (16 0. 32), 301. Penn v. Havward (14 0. S. 302), 12, 53, *78. Pennywit v. Foote (27 O. S. 600), 60. Penrod v. Danner (19 0. 218), 581, 594. Pepple v. Pepple (13 C. C. 431), 614, 615. Perkins v. Dibble (1 0. 433). 434. Perry v. Richardson (27 O. S. 110). 295, 301. Perry v. Sharp (8 Fed. 15), 9. Petersine v. Thomas (28 O. S. 597), 62. Pfantz v. Comford (36 Pa. St. 420), 154. Pfeifer v. Cook (11 W. L. B. 320), 262. Phelps v. Butler (2 O. 224 i . 92. Pliilipps v. Elwell (14 O. S. 240), 27. Phillips v. Keels (4 C. C. R. 316), 462. Phillips v. Phillips (14 0. S. 314), 463. Piatt v. c t. Clair (6 O. 227). 402. Piatt v. Hubbel (5 O. 243), 297. Piatt v. Longworth (27 O. S. 160), 125. Pilcher v. Graham (18 C. C. 5). 22. Pinnev v. Fellows (15 Vt. R. 525), 4*63. Pittsburg v. Railwa" (20 C. C. 561), 578. Pittsburg v. Lvnde (55 O. S. 23), 65. Place v. Sweetzer (16 0. 142). 93. Plumb v. Robinson (13 O. S. 298), 444. Poag v. Shaw (10 C. C. 448), 569 Poe v. Dixon (60 0. S. 124). 369. Pond v. Emily (Daytci 284), 65. Pope v. Hibernia Ins. Co. (24 0. S. 481), 143. Pope v. Meade (99 N. Y. 201), 455. Portage, etc., v. West (6 O. S. 599), 17. Porter v. Burclay (6 0. S. 254), 56. Porterfield v. Butler (47 Miss. 156). 59. Post v. Stiger (29 N. J. Eq. 554). 214. Potter v. Wheeler (13 Mass. 503), 343. Powell v. Kochler (52 O. S. 103), 628. Powers v. Armstrong (36 O. S. 357). 582. Powers v. Railroad (33 O. S. 42!)). 524. Pratt v. Bates (101 Mass. 315), 39, 197. Pratt v. Longworth (27 O. S. 169). 111. Pratt v. Sherman ( 1 Cleve. L. Rec. 14). 146. Prentiss Case (7 O. 129 [Pt. 2]). 308. 321. Presbyterian v. Pickett ( W. 57), 587. lxvi TABLK OF [References are Preston v. Brame (35 0. S. 18), 588. Preston v. Compton (30 O. S. 299), 321. Pugh v. Calloway (10 O. S. 494), °92. Putnam V. Putnam (18 0. 347), 341. Putnam v. Loeb (2 C. C. 110), 48, 51. Railroad v. Ball (5 0. S. 568), 538, 539. Railroad v. Belle Center (48 O. S. 273). 63, 509. Railroad v. Bohm (29 O. S. 633), 509. Railropd v. Harris (4 0. S. 583), Railroad v. Longworth (30 O. S. 108), 539. Railroad v. Marshall (11 O. S. 497), 524. Railroad v. Orme (1 C. C. 511), 33. Railroad v. Peoples (31 O. S. 537), 160. Railroad v. Sullivant (5 O. S. 276), 524. Railroad v. Sundry Persons (7 W. L. J. 265). 503. Railroad v. Transportation (32 O. S. 135), 34. Railroad v. Zinn (18 O. S. 417), 513. Railroad Co. v. Railroad Co. (38 (). S. 614). 309. Railroad, etc., v Marey (47 O. S. iJlO), 14. Ry. v. Commissioners (30 O. S. 120), 569. Railway v. Cummins (53 0. S. ,683), 564. Railway v. Elyria (14 C. C. 52), 562. Railway Co. v. Jones (4 W. L. A. 5), 175. Railway v. Jones (3 < >. Dec Reprint 219), 476. Railway v. Jewett (37 O. S. 649), 15. Railway v. Marey (47 0. S. 207), 15. Railway v. McLean (1 C. C. 112), 15 Railway v. McPeck (16 C. C. 87), 15.' CASES. to sections.] Railway v. Wolf (13 C. C. 374), 399. Rainey v. Jefferson, etc. (8 C. C. 674), 18. Rammelsburg v. Mitchell (29 0. S. 22), 125, 310. Ramelsberg v. Mitchell (29 0. S. 53), 464. Randall v. Turner (17 0. S. 262), 41. Randoll v. Pryor (4 0. 425), 78. Rands v. Kendell (15 O. 671), 461. Rankin v. Hannan (37 O. S. 117), 99. Rapp v. Becker (4 C. C. N. S. 139), 615. Rapp v. Latham (2 B. & A. 795), 155. Raudelbaugh v. Shelley (6 0. S. 307), 617, 618. Raugh, etc. v. Achswitch (36 W. L. B. 302), 96. Raymond v. Railway (57 0. S. 282), 591. Raymond v. Toledo (57 0. S. 271), 572. Ream v'. Walls (61 0. S. 131), 39, 45, 64, 191, 197. Reddell v. Bryan (5 0. 51), 93. Reddle v. Roll (24 0. S. 572), 111. Reed v. H: 'an '"» O. S. 553), 431. Reed v. Radigan (42 O. S. 292), 118. Reel v. Reel (1 Hawks 248), 618. Reeves v. Hunter (62 0. S. 619), 341. Reeves v. Skenett (13 O. S. 574), 346. Reformed, etc. v. Nelson (35 O. S. 638). 627. Reich v. Pike (8 N. P. 234), 145. Rempe v. Ravens (68 O. S. 113), 142. Renneck v. Wallace (8 0. 539), 431. Renner v. Bird (2 W. L. B. 77), 324. Renner v. Bird (2 W. L. B. 76), 466, 477. Rewell v. Warren (4 C. C. N. S. 545), 615. Reynolds v. Bank (112 U. S. 405), 572. Reynolds v. Lupus (7 0. [Pt. H 17). 442. Reynolds v. Stansbury (20 <>. 344), 61. Rhea v. Dick (34 0. S, 425), 577. Rhea v. Dirk (34 O. S. 410), 569. Rhodea v. Cum. (35 0. S. 395), 413, 418, 426. TABLE OF CASES. [References are to sections.] lxvii Rnodes v. Gunn (33 0. S. 387), 54, 582. Khoads v. Moore (43 0. S. 31 ). 267. Ricard v. Williams (7 Wheat. 59), 211. Rice v. Lumlev ( 10 0. S. 59? ) , 46, 459, 496. Richards v. Skefr (S O. S. 589), 63. Richter v. lhornton ( l(i C. C. 637), 24. Riddle v. Bryan (5 0. 48), 65. Ridgeway v. Bank (11 Humph. 523). 09. Ridgeway v. Masting (23 O. S. 294), 461. Ridley v. Holliday ( 106 Term. 607), L91. Ries v. Wolf (18 C. C. 352), 588. Ritefi v. Hawkhurst (114 X. Y. 512), 337. Rivers v. Fripp (4 Rich. Eq. 270), 302. Roads v. Symmes (1 O. 281), 94, 122. Rohb v. Irwin ( 15 O. 689 ) . 206. Rohh v. Lessee (15 O. 689), 41. Roberts v. Doun (20 W. L. B. 397), 65. Roberts v. Page (61 O. S. 96), 44, 255. Roberts v. Price (4 W. L. M. 581), 70. Roberta v. Remey (50 O. S. 249). 304. Roberts v. Roberts (61 O. S. 96), 40, 342. Robey V. Rainsberger (27 0. S. 077). 62. Robins v. Clemens (41 O. S. 285), 24. Robinson Bank v. Miller (153 111. 244), 464. Robinson v. Branph (10 Rec. 485). 346. Robinson v. Fife (3 O. S. 551). 588. Robinson v. Williams (62 0. S. 25), 276. Roby v. Ramsberger (27 0. S. 674), 77. Rockwell v. Beaney (5 X. P. X. S. 580). 626. Roeg v. Schultz (42 O. 8. 165), 92. Rogers v. Dill (6 Hill. 415), 245. Rogers v. Ellis ( 1 Disn. 1 ). 159. Rogers v. mcker ( 7 O. S. 417), 316, 342. Romic's Admr. v. Romig (2 Rawl's Rep. 241), 32*1. Roome v. Phillips (24 X. Y. 403), 3(12. Rosenthal v. Mayhugh (33 0. S. 109), 4.->.-). 462. Rothgeb v. Monk (35 0. S. 503), 569. Rowekamp v. Meyer (10 Rec. 568), 335. Ruffner v. Evans (2 C. C. 435). 462. Ruffner v. McLean (16 0. 041), 452. 453. Rulman v. Hubse (32 Kan. 595). 9. Runyon v. Price ( 15 O. S. 1 ) , 618. Rush v. Rush (29 O. S. 441 i. 346. Russell v. Russell (6 C. C. 294), 027. Russell v. Russel (16 C. C. 46), 483. 477. Rvan v. Root (56 O. S. 302), 101. Ryan v. O'Connor (41 0. S. 308), 572. S St. John v. St. John (11 Yes. 529), 403. St, Louis v. Coal Co. (Ill 111. 32), 60. St. Paul v. Mintzer (65 Minn. 124), 191. Saddler v. Hoffhines < | Ky. 1890] 12 S. W. 715). 337. Safarik v. Oreenwald (1 C. C. X. S. 219), 12. Sage v. Sleutze (23 0. S. 1), 92. Samert v. (lark | 1 C. C. 569), 114. Sampkin v. Chisom (10 O. S. 451), 77. Sanders v. Robertson (57 Ala. 405). 309. Sandusky v. Wilbur (7 0. S. 486), 503.* Sane v. Baughman i 17 0. S. 642), 92. Saylor v. Simpson I 4."i 0. S. 1411, 270. Schaffer v. Waldo (7 0. S. 310), 24. Schatzman v. Stump (7 W. L. B. 334), 159. Seller v. Ingerman (110 Ind. 428), 212. Schiler v. Miller (45 0. S. 525), 230. Schiml v. Schiml (4 C. C. 38). 476. lxviii TABLE OF [References are Schneider v. Terrin (41 W. L. B. 54), 114. Schoff v. Wasteuney ( 13 C. C. 340), 398. Schiller v. Miller (45 0. S. 325), 92, 273. Schulte v. Oberd (4 N. P. 207), 5U9. Schuyler v. Marsh (37 Barb. 350), 314. Schwartz v. Leist (13 0. S. 420), 365. Scallan v. Pedet (2 C. S. C. R. 15G), 580. Scott v. Douglass (7 0. pt. 1, 228), 92. Scott v. Dunn (26 0. S. 63), 284. Scott v. Waite ( 12 0. D. X. P. 324) , 305, 306. Sconce v. Whitney (12 111. 150), 41. Scribner v. Lockwood (9 O. 187), 65. Scribner, etc., v. Lockwood (9 O. 184), 71, 92. Scroll v. Klueher (15 O. 153), 594. Schroyer v. Richmond (16 0. S. 455), 63. Sears v. Sears (77 0. S. 104), 616, 623, 624. Seeger's Estate (7 N. P. 207), 627. Seibert v. Switzer (35 0. S. 661), 143. Sella rs v. Corwine (5 O. 339), 594. Sellen v. Chresfald (1 Hand, 87), 155. Sellers v. Corwin (5 O. 408), 94. Seldman v. Lindeman (4 W. L. B. 911), 215. Sergeant v. Steinberger (2 O. S. :inii), 300. Sessions v. Smodka ( 1 15 U. S. 29), 294. Severns v. Gerke (3 Law 353), 245. Seward v. Seward ( 1 Duvall, 126), nit;. Seymt ur v. King i 11 0. 342), 92. Shaler v. Maqui (2 < >. 2:55), 394. Sharp \. Ross (7 C. ('. 56), ion. Shaumkin v. Streel i 16 0. S. 1), 59. Shawnee v. Bank ( 1 C. C. N. S. 569), 157, 159. CASES. to sections.] Shawnee v. Miller (1 C. C. N. S. 569), 159. Sheldon v. Newton (3 0. S. 494), 64, 111, 206. Shelly v. Jefferson (9 O. S. 606), 20. Shepard v. Shepard (7 J. Ch. R. 57), 463. Shepherd v. Ross Co. (7 O. 271 [pt. 1]), 78. Shilto v. Pullian (2 Disney, 588), 306, 309. Sherman v. Sherman (2 C. C. N. S. 256), 39, 197. Sherman v. Sherman ( 2 C. C. N. S. 454), 194. Shonds v. Allison (5 N. P. 54), 94. Slirayer v. Richmond ( 16 O. S. 466), 64. Siebert v. Switzer (35 O. S. 661), 142. Sidener v. Howers (37 0. S. 532), 55, 224. Sidner v. Alexander (31 0. S. 378), 118, 188, 321. Siebman v. Ashbacker (36 0. S. 94), 92. Sisters, etc., v. Kelly (67 N. Y. 409), 616. Sites v. Widener (35 O. S. 555), 73. Sittler v. City (106 111. 353), 563. Skerrett v. Presbyterian (41 0. S. 606), 577. Skinner v. Brown (17 0. S. 33), 421, 426. Sleet v. Williams (21 0. S. 82), 159. Smead v. Lacey (1 Disney, 139), 93. Smiley v. Gambill (2 Head, 164), 618. Smiley v. Dewey (17 0. 156), 56. Smiley v. Wright (2 <). 507), 461, 462. Smith v. Anderson CM 0. S. 144), 212. Smith v. Bank (26 0. S. Ill), 77. Smith v. Barber (7 0. 118), 312, 313J 315. Smith v. Boston (7 Cush. 254), 563. Smith v. Brown (06 Tex. 543; 1 S. W. 573), 337. TABLM OK [References are CASES. to sections.] Lxix Smith v. Carver (36 W. L. B. 189), .so:;. Smith v. Dalton (1 C. S. ('. R. 150), 154. Smith v. Dalian (1 C. S. C. It. 151). 154. Smith v. Findlay (2 Handy, 70), 580. Smith v. Handy (10 O. 192), 402. Smith v. Hayward (5 N. P. 501), 21.-). Smith v. Hogg (52 O. S. 530), 04. Smith v. Hoover (39 0. S. 349), 31, 47. Smith v. Hoover (39 O. S. 249), 154. Smith v. Hunt (13 0. 200). 5*4. Smith v. Johnson (57 0. S. 480), 18. Smith v. Montag (32 W. L. B. 153), 336. Smith v. Montag ( 32 W. L. B. 183 ) , 336. Smith v. Moore's Heirs (5 Dana, 417), 342. Smith v. Pabst ( 1 Iddings T. R. D. 108), 159. Smith v. Pratt (13 O. 540), 312. Smith v. Pratt (13 O. 551), 342. Smith v. Rothschild (4 C. C. 545), 324. Smith v. Smith (13 O. S. 532). Smith v. Smith (57 O. S. 27), 462, 463. Smith v. Whistler (10 C. C. 130), 475. Smith v. Whittlesay (19 C. C. 415), 50. Smith v. Whittlesy (19 C. C. 412), 140. Smithers v. Rainey ( 14 O. S. 287 i , 77. Smithfield v. Wheeling, etc. (11 C. C. 412), 94. Snell v. Cincinnati, etc. (00 O. S. 256), 20. Snevely v. Lowe ( 18 O. 368), 200. Snyder v. Betts (2 ('. C. 485). 204. Society v Drake ( 10 C. C. 59), 465. Society v. Haines (47 O. S. 424 1, 369. Solinsky v. Bank (85 Tenn. 308), 214. South Kenton, etc., The v. Espy ( 17 C. C. 524), 347. Southward v. Jamison (00 0. S. 311), 59, 60. Southward v. Jamison (00 G. S. 290), 04. Spadler v. Lawler (17 O. 371), 304. Spahr v. Parker (8 Bevan, 45ty, 309. Spahrhawk v. Yoerkes ( 142 U. S. 1), 294. Spangler v. Dukes (39 O. S. 642), 463, 509. Sparks v. Beyer (5 Kan. App. 721 i, 9. Sparrow v. Kinsman I 1 Const. 24.3). 400. Speller v. Nye (10 O. 10), 100. Spence v. Insurance Co. (40 O. S. 417), 368. Sperry v. Pond (5 O. 388). 584. Spier'v. Carll (33 O. S. 230). 00. Spinning v. Blackburn ( 13 O. S. 131), 377. Spoars v. Caen (44 O. S. 497), 59, 00, 04, 324. Sprague v. Law (17 C. C. 735), 462, 405. Springmeier v. Blackwell (3 \\ . 1.. B. 1160), 409. Stableton v. Ellison (21 O. S. 527), 341, 340. Stacy v. Cunningham (09 0. S. 181), 011, 021. Stacy's Will (4 N. P. 133). 011. Stapleton v. Ellison (21 O. S. 527), 302. Stapleton v. Reynolds (5 A. L. R. 242), 24. Stanberry v. Carlisle (35 0. S. 214), 420. Stanberry v. Nelson (W. 766), 431. Stanberry v. Sillon (13 0. S. 571), 427. Standard, etc. v. Sowden (55 0. S. 332). 376. Stanton v. Ballard I 133 Mass. 464), 60. Stanton v. Enquirer Co. (7 X. P. 589). 14. Stanton v. Kendrick ( 3.'. W. E. 19), 369. Starr v. Wright (20 O. S. 99), 586. lxx TABLE OF CASES. [References are to sections.] State v. Commissioners (39 0. S. Stoddard v. Meyers (8 0. 203), 50 (il), State v. Conover (9 X. J. L. 338), 206. State v. McCarty (52 0. S. 363), 20. State v. Newton. (26 0. S. 200). 13. State v. Ry. ( 1 X. 5202), 588. State v. Salem, etc! (5 C. C. 5s | , 52S. State v. Worthington (23 Minn. 528), 450. State, etc.. v. Rabbitts (40 0. S. 178 1. 21. State, etc.. v. Shaw I 43 (». S. 324), 20. State, etc., v. Winget (37 O. S. 153), 21. State, etc., v. Wolfe ( 11 C. C. 501 ), 21. State, ex rel. v. Hobson ( 7 X. 1'. 187), 144. State, ex rel. v. Tousey (49 O. S. 656), 443. Staynor v. Bovver (42 0. S. 314), '341. Steel v. Pogue (15 C. C. 149), 421, 432, 444. Steele v. Board of Education (31 W. L. B. 84), 462. Stempel v. Thomas (89 111. 147), 333. Sternberger v. Ragland (57 O. S. 157). 07. Sternberger v. Ragland (57 0. S. 148). 71. Stevans v. Shannon el . 92), 00. Sy'mmcs v. White <4 W. L. .1. 528), 462. II. 271 ). 3(17. Stewarl v. Ate,, (5 O. S. 257), 484. Summer v. Sampson (8 0. 364), StewaH v. Hopkins (30 0. S. 502), 364. Stewarl v. I tail way (53 < >. S. 151), 57. 94. Stichtenoth v. Rife (6 C. c. 540), 377. Stichtenoth v. Toph (23 W. L. 15. 126), 341. Stiles \. Wi.lcncr (35 (). S. 555), 69, L23. Still v. Palmer (41 Miss. 89 1. 5!) Sumner v. Hampson (S (). 328), Kit. SutclilVe v. Darman ( IS (). 181 ), 93. Sutleff v. Shenago Bank ( 1 W. L. M. 214 1. 150. Swan v. Railway (A < >. D. 71 I. 15. 18. Swart/, v. State (13 ( '. ( '. 62). 459. Swasev v. Cones (Warden's Daily Bulletin), 1 10. Stilley v. Folger (it 0.650). 163. I Swasey V. Blackmin (8 0. S. 5), 63. Stockwell v. Coleman ( Id 'I. S. 35). | TABLE! OF CASES. T References are to sections.] Ixxi Swavne v. Xeiswonger (20 0. 550), *427. Sweeney v. Shade (22 (). S. 333 ) , 462. Swihart v. Shoun (24 O. S. 432), 341. Swinhart v. Swiuhart ( 7 C. C. 338 ) , 340. Tabler.v. Wiseman (2 0. S. 208), 300, 303, 305, 30G, 307, 316, 460. Tabler v. Wiseman (2 0. S. 209), 466. Talhnan v. Baltimore (45 Fed. Rep. 156). 30, 33. Taylor v. Boyd (3 O. 337), 70, 78. Taylor v. Foster (22 0. S. 255), 594. Taylor v. Fowler (18 O. 567), 465. Taylor v. McDonald (4 0. 149), 154. Taylor v. McDonald (4 0. 155), 141. Taylor v. Moaher (29 Md. 443). 302. Taylor v. Taylor (5 N. P. N. S. 323), 026. Taylor v. Thorn (29 0. S. 569), 211, 230. Thayer v. Thayer (7 Peck. 209), 342. Thompson v. Montrasa (2 N. P. N. S. 368), 9. Thompson v. Ogden (3 C. C. N. S. 51). 154. Thompson v. Thompson (4 (). S. 333), 368. Thompson v. Thompson ( 18 O. S. 73), 341. Thomson v. Love (42 0. S. 7<>). :H6. Thurston v. Mevke (32 Md. 571), 343. Todd v. Beatty ( \V. 460), 4.">.~>. Toledo Loan Co. v. Larking ( 1 C. C. N. S. 473), 306. Toledo v. Preston (50 0. S. 301), 64. Toledo, etc.. v. Larking ( 1 C. C. R. X. S. 473), 307. Tolheiss v. James (25 W. L. B. 277 ) , 385. Tollerton v. Williard (30 O. S. 579), 56. Towner v. Wells (8 O. 136). 95. Tousley v. Tousley (5 O. S. 78), 364. Townsend v. Hazard (9 R. 1. 442), 314. Tracey v. Sackett ( 1 O. S. 54). 615. Traver v. Baker (38 W. L. B. 273), 9. Trembly v. Trembly (4 0. L. R. 545), 619. Thatcher v. Dickson (3 C. C. 144), | Treon v. Emerich (6 0. 391). 431, Thomas v. Brown (10 O. S. 247), 402. Thomas v. Huesman (10 O. S. 152), 380. Thomas v. Myrick (24 Minn. 4). 62. Thomas v. White (2 0. S. 540), 569. Thompson v. Adams (205 111. 552), 191. Thompson v. Chesman (48 Pac. Rep. 477), 309. Thompson v. Gotham (9 0. 170), 342, 426. Thompson v. Green (4 0. S. 217), 584. 588. Thompson v. Hoop (6 O. S. 4S1). 462. Thompson v. Massie (41 O. S. 307), I Tuttle v. Wilson ( 10 0. 27). 476. 434. Trout v. Marvin (62 0. S. 132). 94. Truman v. Luc ( 14 O. S. 114). 615. Trumble v. Longworth (13 < >. S. 438), 60. Trumble v. Longworth (13 O. S. 431 ). 49, 0L 63. Trustee v. Thoman (51 0. S. 285), 442. Tucker v. Shade I 25 O. S. 355), 94. Tucker v. Shade (25 0. S. 358), 95, 99. Tullis v. Pierano (9 C. C. 647). 474. Turner v. Crehill (1 O. 372). 56. Turney v. Yeoman (14 O. 208), 426. 434. Turney v. Yeoman (14 O. 207). 462. Tusca v. O'Brien (68 N. Y. 446). 62. 9. , Tuttle v. Wilson (10 O. 24). 4C. ixxii TABLE OF [References are Tyler v. Columbus (6 C. C. 224), 507. Tynan v. Baschal (27 Tex. 28(5), 618. U Underbill v. Jackson (1 Barb. Ch. 73), 314. Linger v. Inciter (32 0. S. 210), 454, 457, 4li.">. Union Central, etc. v. Pryer (30 0. S. 534). 14. Union v. Smith ( 4 C. C. N. S. 237 ) , 627. Union, etc.. v. Packard (1 C. C. 78), 141. 150. Union, etc.. v. Union, etc. (6 0. S. 254). 50. United States v. Telephone Co. (50 O. F. D. 559). 37. Upper Mississippi, etc., v. Whitta- ker (16 Wis. 233), 34. Vallette v. Kentucky ( 2 Handy, 1 ) , 47, 142. Van Arsdale v. Drake (2 Barb. 599), 309. Vandemark v. Mattingly (62 0. S. 25), 270. Vandement v. Trisler (4 N. P. 37), 2! I. Vance v. Manny (4 Cal. 47). iOQ. Vanthomity v. Peters (20 0. S. 471 ). 36 t. Van Zant v. Daviea (6 0. S. 52), 341. Vattier v. Jobnston (1 W. L. •'• 393 i. 182. Vattier v. Lylte (6 <>. 478), 05. Venable v. Bcnuehamp (3 Dana, 321), 324. Ventress v. Smith ( 10 Pet. 101), 206. Vrooroon s. Powers (47 O. S. 191), W Wabash, etc., The v. The Toledo, etc. (7 N. I'. 198), 569, 576. CASES. to sections.] Wachenbeimer v. Standart ( 19 C. C. 693), 330. VVacbtel v. Campbell (7 N. P. 507), 263. Wade v. Pettibone (11 O. 57), 125. Waller v. Goble (53 Barb. 517), 143. Wagner v. Railway (38 O. S. 32), 541. Wagner v. Ziegler (44 O. S. 69), 623. Waite v. Feist, etc. (6 N. P. 434), 585. Waldron v. Woodcock (15 O. 13), 594. Walk v. Bank (15 O. 288), 28. Walker v. Hall (15 O. S. 355), 324. Walker v. Morris ( 14 Ga. 323) , 288. Walker v. Walker (14 O. S. 158), 623. Wallace v. Dayton (Dayton, 416), 584. Walpole v. Ink (9 O. 142), 70. Walsh v. Freeman (21 O. S. 402), 321 Walz v. Hertz (24 W. L. B. 110), 434. Wanzer v. Widow (2 W. L. M. 426), 466. Ward v. Barrows (2 O. S. 241), 42, 211, 431. Ward v. Bridge Co. (6 O. S. 15), 539. Ward v. Casey (39 O. S. 361), 364. Ward v. Davis (3 Sanford, 502), 309. Ward v. Howard (12 0. S. 158), 142, 100. Ward v. Mcintosh (12 O. S. 237), 460. Ward v. Mcintosh ( 12 0. S. 231), 5S7. War,] v. Rv. Co. (3 X. P. 275), 399. Ward v. Ward (20 C. C. 136), 159, Oil. Warner v. Callender (20 O. S. 190), 33. Warther v. Ruehwein (8 X. P. 494), 39. Wasson v. Beffner ( 13 0. S. 573), 620. Waterman v. Watterman (57 0. S. ti'.i). 296, 298. TABLE OF I I Leferences a re (ASKS. to sections.] lxxiii Wat kins v. Quarrels I 23 Ark. 170). 302. Watson v. Paine (2.3 ( >. S. :S4(D. 30. Watterson v. Try (.3 ('. ('. 354), 573. Waymire v. Staly i 3 0. 366),, 101. WCaver v. Gregg (6 0. S. .347). 324. 454. 461. Weaver v. Gregg (6 O. s. 525), 466. Weber v. King (7 W. L. B. 148), 101. Weekly v. Hall (13 O. L67), 4.3.3. Weeks' v. McBeth (14 Ala. 474). 618. Wehrle v. Wehrle (30 0. S. 368), 71. Weiss v. Geddes (Dayton, 31), 330. West v. Meyer (46 O. S. 66), 329. Weitcamp v. Loelir (53 X. Y. Sup. Ct. 83), 154. Welch v. Buckins (9 0. S. 331), 460, 462. Welch v. Childs (17 O. S. 319), 62. Welch v. Thompson (39 Ga. 559), 297. Welsh v. Freeman (21 O. S. 402), 321. Welsh v. Perkins (8 O. 52), 111, 215. Welsh v. Wilson (9 C. C. X. S. till), 614. Werner v. Glass | It; W. L. B. 354), 305. 306. West v. James (51 0. S. 230), 99. West v. Klotz (37 O. S. 420). 376. West v. Knoppenberger i4 ('. ('. X. S. 305). 614. Westerman v. Westerman i 2.3 0. S. 500). 92, 461. Westfall v. Dungan (14 0. S. 276), 65. Weyer v. Sager (21 C. C. 44S). 454. Weyer v. Sager (21 C. C. 715). 4.3.3. Wheeler v. Cobb (75 X. C. 21 ). 154. Wherlin v. Mack.- ( 15 W. L. B. 125). 143. Wherle v. Wherle (30 0. S. 65), 230. White v. Brocaw (14 0. S. 330). 304. White v. Denman (16 O. 59), 364. White v. Doerner ( 1 0. S. 110), 364. White v. I'li.'se (2 ( . S. C. K. 30), 30. White v. Moore (23 S. C. 456), 337. White v. Say re I 2 < t. Ill), 581. W nite v. Stanley (29 < ». S. 423 .. 1.3! I. White v. Stanley (29 < ». S. 443 I, 159. White v. Woodward (44 0. S. 347), 399. Whitehead v. Post (3 W. L. M. L95), 30, 50, .31. 107. Whitehead v. Posl (3 W. L. M. 19.3 1. Ki7. Whitman v. Sheets (20 C. C. L), 22. Whitney v. Emory (3 Mich. 84), 58. Whitney v. Roth (4.3 W. L. B.), 615. Whitney v. Sherborn i 12 Allen, 111). 134. Whitney v. Webb (10 0. 513), 588. Whittaker v. Stunner (7 Pick. 555), 27. Wilder v. Wilder ( 1 ( '. C. X. S. 8) , 346. Wiley v. Lewis (4 N. P. 212 i. 58, 83. Wilfred v. Heimhoffer (2 C. C. X. S. 369), 324. Wilford v. Eeimhoffer (2 C. C. X. S. 360). 4(12. 4(16. Wilkins v. Buse (9 0. 154), 413. Wilkens v. Hughes (9 < >. 154), 414. Wilson v. Houghton (50 Mo. 1 (, 60. Wilson v. Bull (10 P. 261), 342. Wilson v. Cincinnati, etc. (7 X. P. 511). 4. Wilson v. Fleming (13 0. 73), 300. Wilson v. Hall (6 C. C. .37m. 21.3. Wilson v. Hurst (1 Pet. C. (.441), 27. Wilson v. Kellcy (21 S. C. 535), 337. Wilson v. Northern, etc. (16 W. I.. B. (it. 33. Wilson v. Scott i 20 O. S. 637), 114. Wilson v. Swiegert (31 W. L. B. 353 1 . 276. Will > i .lames Conway (124 X. V. 4.3.3 i. 616. Will of .lames 0*Neil (91 X. Y. 516), 616. lxxiv TABLE OF [References are Williams v. Burnett (W. 53), 588. Williams College v. Millett ( 12 Mo. 398 ) , 343. Williams v. Englebright 1 75 0. S. 383). 584. Williams v. Englebrecht (37 0. S. 383), 366. Williams v. Hamilton ( 1 Handy. 96), 7. Williams v. Mears (2 Disney. 614), 341. Williams v. Muller ( 1 W. L. M. 409), 263. Williams v. Pope (Wright, 400), 207. Williams v. Spriggs (60 O. S. 585), 212. Williams v. Welton (28 0. S. 451). 54. Williams, Adm'r, V. Welton's Adm'r (28 0. S. 450), 47. Williams v. Welton (28 0. S. 451). 18, 24, 25. Williams v. Williams ( 8 0. S. 52), 215. Williams v. Williams (3 W. I. M. 152). 463. Williams' Case (3 Bland Ch. [M. D.] ISO). 245. Williamson v. Nicklin (34 0. S. L23), 24. Williard v. Williard (56 Pa. St. 119), 298. Williard v. Williard (56 Pa. St. 571), 343. Wills v. Price (9 Mass. 508), 305. Wills v. Price (!) Mass. 509), 303. Winchester v. Pierson (3 W. L. J. 131), 154. 159. Winder v. Sterling (7 0. pt. 2, 190), H3. Winderisch v. Brewing Co. (17 ('. C. 465), 611. Winemiller v. Laughlin (51 < >. S. 421), 40. 60, 04, 421. 500. 575. Winkler v. Winkler ( 1 Iddings T. R. I). L24), 402. Wintering v. Conigan (36 W. L. B. 86), 157. Wintermute v. Montgomery (11 0. S. 442), 588. Wintermute v. Montgomery ill 0. S. 444). 582. CASES. to sections. J Winthrop v. Grimes (W. 30), 585. Winthrop v. Grimes ( 2 0. 30), 507. Winters v. Bank (33 0. S; 250), 370. Wise v. Martin (7 N. P. 660), 157. Woodbridge v. Banning (14 O. S. 328), 324, 584. Woodcock v. Baltimore, etc. ( 40 W. L. B. 121), 33. Woodhull V. hong street (3 Har- rison [N. J.] 405), 207. Woodman v. Richardson ( 1 C. C. 19). 380. Woodward v. Dowse ( C. B. X. S. 722), 471. Woodward-Holmes v. Nudd (58 Minn. 236), 464. Woodworthy v. Paige (5 0. S. 71), 461. Wolverton v. Paddock (3 C. C. 488), 230. Wood v. Butler (23 0. S. 520), 41, 215. Wood v. Clute ( 1 Sand. Chy. Rep. 202), 307. Wood v. Phillips (2 C. C. 138) , 460. Wood v. Phillips (2 C. C. 130), 460. Wood v. Stanberry (21 O. S. 142), 46. 368. Wood v. Warden (20 0. R. 518), 463. Woods v. Prudell (W. 507). 585. Woods v. Monroe (17 Mich. 238), 212. Worthy v. Johnson (8 Ga. 236), 206. Wright v. Edwards Mo Oregon, 298), 206. Wright \. Franklin (59 < >. S. 02), 92. Wriglrl v. Merchant (5 W. L. M. 195). Wright v. Nickers (81 Pa. St. 122), 343. Wyer \. Zane (3 O. 306), 64. Y. Young \. Shellenberger (53 0. S. 291), 80. Merwine's Practice and Procedure in Real Actions CHAPTER I. PROCEDURE BY WHICH A COURT ACQUIRES POWER TO TRANSFER REAL ESTATE FROM ONE PERSON TO ANOTHER. SECTION. 1. Preliminary statement. 2. What the petition should con- tain. 3. Requirement as to caption of the petition. 4. The manner in which the action to sell real estate is begun. 5. The necessity of service of sum- mons or entry of an appear- ance in the action. 6. Requirement as to precipe. 7. The summons; what it must contain, and by whom served. 8. When the summons may issue to another county. 9. Where the action must be brought. 10. Local and transitory actions. 11. When the action may be brought where a part of the property is situated. 12. Where the action for specific performance of a contract of a sale of real estate must be brought. 13. When the action should be brought in the county where the cause of action arose. SECTION. 14. Where actions other than those mentioned in Gen'l Code, §11268 to §11272 (R. S. §5019 to §5023), must be brought. 15. Venue as to railroads and stage companies. 1G. Venue as to turnpike company. 17. Venue prescribed by charter of corporation. 18. Where actions against non-resi- dents may be brought. 10. General rule as to where all other actions must be brought. 20. How change of venue seen red. 21. Change of venue in suit by or against a corporation. 22. Summons may not be served on an attorney while in another county on professional busi- ness only. 23. Tn what cases persons may not be summoned. 24. At what time summons is re- turnable. 25. Issuance of alias writs. §1 MERWINE ON REAL ACTIONS. SECTION. 20. By whom service of summons may be made. 27. What parties are bound by the > return. 28. The manner in which summons is served. 29. Service of partners in attach- ment — Replevin. 30. What is equivalent to service of summons. 31. How service rf summons may be set aside. 32. How service of the writ is made on a c irporation. 33. What the return of service must show. 34. What is meant by managing agent. 35. Service of summons upon joint stock company. 36. How insurance company served. 37. When the service may be had upon the managing agent. 38. Service of summons upon a minor. 39. Conduct of the defense for and on behalf cf an infant. 40. The nature of the duties of a guardian ad litem. 41. The defense of an infant by guardian ad litem should be a real defense. 42. Rights of infants reserved in judgment, how. 44. 45 4-d SECTION. 43. Power of guardian to act for ward hi partition proceedings. Guardian cd litem in sale of real estate by guardian. Guardian ad litem — Sale of real estate by an administrator to ] ay debts. Service of summons by publi- cation. When and in what actions ser- vice by publication may be made. Service of publication in at- tachment. A finding of notice by publi- cation not subject to collat- eral attack. Affidavit required before pub- lication is made. How the publication must be made. When the service by publica- tion is complete. When service of copy of peti- tion may be made out of the State. How publication made against an unknown heir. Manner of service where two or more defendants are joint- ly liable. Lis pendens. Lis pendens as to suits in other counties. 47 48. 49. 50 51. 52. 53. 54. oo 5G 57 Sec. 1. Preliminary statement. As the purpose of this work is to set forth the law and procedure in Ohio by which title to real estate is transferred, by order of the court, or judicial sale, from one person to another, only so much of the law of pleading and practice as pertains to the giving or transferring of title in such ac- tions or procedure will be set forth in this book. For the rules of law of code pleading applicable to such actions or procedure, reference must be had to appropriate text books on the subject. 1 The forms of pleading in all civil actions in the courts l Kinkead's Code Pleading; Kin- Practice, Parties and Forms; Whit- kead's Practice; Bates' Pleading, taker's Annotated Code. POWER TO TRANSFER REAL ESTATE. §§2-4 of record in Ohio, and the rules by which their sufficiency are determined, are prescribed by statute. 2 Sec. 2. What the petition should contain. In all actions wherein real estate is sold under a judg- ment, decree, or order of the court, the petition or applica- tion in the case should set forth the cause of action in ordinary and concise language, and a demand for the relief for which the plaintiff, or applicant, supposes himself to be entitled. 3 Sec. 3. Requirement as to caption of the petition. Each petition or application by which an appeal is made to a court for a sale or transfer of real estate, should contain the name of the court and the county in which the action is brought, and the names of the parties, followed by the name of the pleading. 4 In every civil action the party complaining must be known as the plaintiff, and the adverse party as the defendant; and the title of a case is not permitted to be changed in any of its stages, except when the defendant prosecutes error. 5 Sec. 4. The manner in which the action to sell real estate is begun. In a civil action the petition or application must be com- menced by filing, in the office of the clerk of the proper court, a petition, causing a summons to be issued thereon. In various chapters of this book, under appropriate? subjects, zGen'l Code, §11302 (R. S. § 5054 ) . 3Gen'l Code, § 11305 (R. 8. § 5057 ) ; 2 Bates' Pleading, Practice, Parties and Forms, 157; Phillips' Code Pleading, §8 177-192, 322; 1 Kinkead's Code Pleading, § 50; Whit- taker's Annotated Civil Code, 164; see § 50 herein as to the effect of a judgment outside of the issues in the case. *Gen'l Code, § 11304 (R. S. § 5056) ; 1 Bates' Pleading, Practice, Parties and Forms, 157; Phillips' Code Pleading, § 169; 1 Kinkead's Code Pleading, §50; Whittaker's Annotated Civil Code, 164. sQen'l Code, §11239, (R. S. §4972); Whittaker's Annotated Civil Code, 24. "It has been said that as the Code does not specify in what part of the petition the title shall be found, allegations (if who the parties are in the caption satisfies the re- quirement that they be named." 1 Bates' Pleading, Practice. Parties and Forms, 157; Hill v. Thatcher, 3 How. Pr. 407; King v. Bell, 13 Neb. 409; McClosky v. Strickland, 7 la. 257. §§ 5-7 MERW1NE ON REAL ACTIONS. 4 will be found a discussion of what the petition or applica- tion should contain. Sec. 5. The necessity of service of summons or entry of an appearance in the action. The subject of the issuing and service of summons, or the notification required by law upon a defendant, or a party- having- an interest in, or title to. real estate sought to be sold, or transferred by the court, is one demanding the most careful attention of counsel conducting such proceeding, or examining the title to real estate so sold or transferred by the court. In the chapter following this one, in this book, will be found a discussion of this subject, and we must be content here with the observation, that the claim, or interest, of any one in any real estate is never cut off or barred in any way, by order of the court, unless such party has been brought into the proceeding by some one of the different methods provided by law for that purpose. In other words, the court must first acquire power to hear and determine the rights of all of the parties to the action. This power is ac- quired by bringing the action in the proper court and by service of summons upon each of the defendants in the action, or by the entry of appearance in the case by any of the other methods permitted by law. 6 Sec. 6. Requirement as to precipe. The statute provides that in order to begin an action the plaintiff must file, with the clerk of the court, a precipe stat- ing therein the names of the parties, and demanding that a summons issue. 7 All writs and orders for provisional remedies, and process of every kind, must be issued by the clerks of the several courts; but before they are issued a precipe must be filed with the clerk demanding the same. 8 Sec. 7. The summons — What it must contain, and by whom served. The summons must be issued and signed by the clerk, and lie under the seal of the court from which it is issued; its e 3ee * ~>0 as to what the is- 5033) ; see Xo. 15 for form for pre- >ur~ musl contain. See 8 60 for ctpe for summons. discussion of question of jurisdic- *<;,.„"] Code, §2877 ( R. S. 8 4059). tion of parties. The clerk lias no discretion; ho -TGen'l Code, §11280 ( R. S. § must issue the writ. Patterson v. Wilkins, W. 501. POWER TO TRANSFER REAL ESTATE. §7 style must be, "The State of Ohio, County, ' ' and it must be dated the day it is issued; it must be directed to the sheriff of the county, who is required therein to notify the defendant, or defendants, that they have been sued, and must answer at a time therein, or the petition will be taken as true, and judgment rendered accordingly. When the ac- tion is for the recovery of money only, there must be endorsed on the writ the amount to be stated in the precipe, for which, with interest, judgment will be taken, if the defendant fail to answer; and if the defendant fail to appear, judgment cannot be taken for a larger amount, and the «costs. 9 In equity cases no indorsement is required on the summons. It was so held in an action where the petition asked for a personal judgment and a decree of foreclosure, and no answer was filed, and the real estate was sold under a default order of sale, no personal judgment having been taken in the action. 10 The sheriff is required to indorse upon every writ or order the day and hour it was received by him. In all actions where the sheriff is a party, or is interested, process must be directed to the coroner ; and if both the sheriff and eoron \r are interested in the case, the process must be directed to, and executed by, a person appointed by the court. 11 sGen'l Code, § 11281 (R. S. §5034). See No. 15 for form for summons, and No. 17 for form for sheriff's return r may be compelled to appear. It is manifest that an action Stark County. The second cause of action in I lie petition did not aver that the material was furnished tin- der a 'i in tract with the owner of the premises. Weld: (1), That said second cause <>f action was insuffi- cient; thai the fads alleged did not create a lien i on the premises of the Amanda (las Co. in favor of the Bolton Steel Co., for such ma- terial, and (2), That the petition failed to state a cause of action for the foreclosure of a lien and a sale of real estate, under § 5022 [Geal Code, §11271), the court did not acquire jurisdiction of the subject-matter of the action, nor of the person of Chapman by service of summons upon him in Stark County, and that the judg- ment rendered on the first cause of action was void. Chapman v. The Bolton Steel Co., 4 C. C. 242. 18 Pugh, Judge, in Kraner v. For^ rester, 32 W. L. B. 199. >» Leaf v. Mariott, 29 VV. L. B. 221. 2<>Gen'l Code. §11282 (R. S. §5035), and Gen'l Code, § 11284 (R. S. 5037). 9 POWER TO TRANSFER REAL ESTATE. § 9 may not be so rightly brought, and that the court may, never- theless, afterward obtain jurisdiction by the consent of all entitled to object. But was it the intention of the Legislature to permit one to consent for all? Surely, this would open the door, especially in such cases as this, to the evils deprecated so strongly in another case. 21 "If it be said that a willing defendant may accomplish the same thing by coming itito the county so as to permit service, the answer is ita lex scripta est, and besides, the trouble and expense of doing so are a protection against collusion which the Legislature may well have intended to preserve, while a serious question might be raised as to the acquisition of juris- diction when there is such collusion. "But, it is said, acknowledgment on the back of the sum- mons or petition, is equivalent to service. Service of what? In this case, says plaintiff's counsel, of a summons issued to the foreign county, because it was upon such a summons that the defendant wrote his acknowledgment. But, by the ex- press terms of the law, the same result would have followed, had the petition been mailed by him and his indorsement made upon it, so that the trouble and expense of the summons were wasted. The service to which such acknowledgment was intended to be made equivalent, is the service w^hich might be actually and lawfully made, equivalent in this case to service of summons in still another county. It is a statute of evidence, in other words, substituting other proof of notice of the pendency of the action for the summons and officer's return. Or it may be said, that, as the party must be sum- moned, which can only mean served with summons, in the county, (Gen'l Code, §11277 [R. S. §50281), the acknowledg- ment is not equivalent to service in the county, unless made there. So voluntary appearance, to be equivalent to s< rri<< in the county, must be appearance there, i. e., actual, as opposed to constructive, appearance. But, however this may be, in my opinion Gen'l Code, §11287 (R. S. §5040), was not intended to, in any way, qualify or enlarge the provisions of Gen'l Code, § 11277 (R. s! § 5028 ) and Gen 'lCode, § 11288 (R. S. § 5035)."- It is not permitted that one may do indireetly what he may 2i Allen v. Miller, 11 O. S. 374. 22 Lamont v. Holmes Ins. Co., 10 W. L. B. 414. §9 MERWINE ON REAL ACTIONS. 10 not do directly. Hence, a plaintiff is not permitted to sue two defendants on a contract in this county, and serve one of them with summons in this county, and the other with summons in another county of the State, if the action is not on a joint contract. If during the trial it develops that the defendant in this county is not jointly liable on the con- tract, the action as to him should be dismissed, and the sum- mons for the other defendant quashed. 23 The defendant, or defendants, resident of the county in which the suit is brought, and from which the summons must be issued to another county or counties in the State for an- other defendant or defendants, must be a real defendant, and he must have a substantial interest in the controversy, ad- verse to the plaintiff. It is not enough that the defendant have a colorable interest in the suit. The question of the jurisdiction of the court over the non-resident defendant must not be brought about under a colorable or fictitious arrange- ment. To allow a resident defendant, when the action is brought, to be a nominal defendant, without a real and sub- stantial interest, adverse to the plaintiff against whom relief is sought, would open a wide door to fraud and be the means of oppression and wrong. 24 In an action to enjoin the collection of a judgment, the sheriff holding the execution is not a necessary party, and a summons in such action cannot issue for a defendant in another county. 25 23 Dunn v. Hazlett, 4 O. S. 435. 24 Allen v Miller, 11 O. S. 374. See also 1 Bates' Pleading, Prac- tice, Parties and Forms, 590, where is cited the following under Revised Statutes, (Genl Code, § 11282, R. S. § 5023 I . Stull v. Powell, 70 Neb. 152, 97 X. W. 249; Dunn v. Hazlitt, 4 0. S. 435; McKibben v. Day, 98 N. W. 845; Christian v. Williams, 35 Mo. App. 297 ; Perry v. Sharp, 8 Fed. 15; Adair v. Forrey, 105 X. W, 714; Minnick v. Matchett, 10 Kan. App. 170; Ruleman v. Hulze, 32 Kan. 595; P»rennen v. Eggly, 23 Kan. 123; Thompson v. Montrass, 2 X. P. X. S. 368; Maholm v. Mar- shall, 29 O. S. 611; Sparks v. Beyer, 5 Kan. App. 721; Harrison v. Car- bon, 14 Wyo. 246; McCormic v. Cummins, 59 Neb. 330; Head v. Daniels, 38 Kan. 1. See also Ihompson v. Massie, 41 0. S. 307; Hadley v. Dunlap, 10 O. S. 1. When a suit is brought in one of the counties in which a municipal corporation is situated, it i-s prop- erly brought, and summons upon the petition filed therein may be issued to any other county against one or more defendants. Fox v. Fostoria, 14 C. C. 471; affirmed in 60 (). S. 340. 2 r > Howard v. Levering, 8 C. C. 614. 11 POWER TO TRANSFER REAL ESTATE. §§10,11 The residence of one who is serving a sentence of impris- onment is, for the purpose of service of a summons, in the county where the prison is located, and service upon him in a suit brought in that county renders service valid upon co-defendants in the county where they reside. 20 Sec. 10. Local and transitory actions. A local action has been defined to be "an action that must be prosecuted in the county where the land lies;" and a definition for a transitory action is. "an action that can be prosecuted in any county where the defendant can be sum- moned. ' ' -' Local actions are such oily as are made so by statute; and all other personal actions may be prosecuted 1 in any county where process may be served on the defendant.-'* An action for consequential injury to land, or a suit for a mandatory injunction requiring a defendant to abate a nuisance on his own land, causing injury to the land of the plaintiff, is, under our code, not local but transitory; and under the statute, 29 must be brought in the county where the defendant resides, or may be summoned. 30 Sec. 11. When the action may be brought where a part of the property is situated. When the property is situated in more than one county, the action may be brought in either; but in actions to recover real property, this can only be done when the property is an entire tract. 31 26 Thompson v. Montra-s, 2 X. P. N. S. 368; Davis v. Duffie, 8 Bosw. . (N. Y.) 617. 27Genin v. Grier, 10 0. 211; City v. Fox, 60 O. S. 349. 2S City v. Fox. 60 O. S. 340. 2»Gen'l Code, § 11277 ( R. S. §5028). so City v. Fox, 60 O. S. 340. siGeii'l Code, § 11269 ( R. S. § 5020 ) . "A mortgagee of real property not part of an entire tract situate in more than one county, will n t be charged with constructive notice of an action for the recovery of such property, pending in a county other than that in which the property is situated, the doctrine of lis pen- dens does not apply, unless the court has acquired, in some manner, jurisdiction of the subject-matter involved in the suit. Where, there- fore, in an action to recover real property which is not an entire tract, situate in more than one county, but a separate tract lying wholly in one county, the action is not brought in the county where the subject of the action is located, a bona fide purchaser of the property for a valuable consideration with- out actual notice, and residing in the county where the property is §§ 12-14 MERWINE ON REAL ACTIONS. 12 Sec. 12. Where the action for specific performance of a con- tract of a sale of real estate must be brought. An action to compel the specific performance of a contract of sale of real estate may be brought in the county where the defendants, or any of them, reside. 32 The action may also be brought in the county where the land is situated. 33 And a court of equity in one State, having acquired juris- diction over the persons of the parties, may enforce specific performance of a contract in relation to lands in another State. 34 Sec. 13. When the action should be brought in the county where the cause of action arose. Actions for the following causes must be brought in the county where the cause of action, or some part thereof, arose : (1) For the recovery of a fine, forfeiture, or penalty imposed by a statute, except that, when it is imposed for an offense committed on a river or other watercourse, or a road, which is the boundary of the State, or of two or more counties, the action may be brought in any county bordering on such river, watercourse, or road, and opposite the place where the offense was committed. (2). Against a public officer, for an act done by him in virtue or under color of his office, or for a neg- Led of his official duty. (3) On the official bond, or under- taking of a public officer.' 1 ' Sec. 14. Where actions other than those mentioned in G-en'l Code, § 11268 (R. S. § 5019) and Gen'l Code, § 11272 (R. S. § 5023), must be brought. An art inn other than one of those mentioned in four pre- ceding sections (Gen'l Code. §§11271, 11270, 11269 and 11268 Bituatcd, will lint lie charged with rik v. Groenwald, 1 ('. ('. X. S. 21!). constructive notice of the pendency ■' Burnly v. Stephenscn, 24 (). s. of such action ;it the time <>f his 174: Penn v. Hayward, 14 (). S. :!()2. purchase, bo as to prevent Ins ac w* Gen'l (ode, S 11271 | I!. S. quiring a valid interest in theprop- s 5022 i •. Bee also in this connection erty." Benton v. Shafer, 47 0. S. State v. Newton, 26 < ». s 200; 117. s,-,- Gen'l Code, §§11303 and backworth v. Robinson, 31 S. 11304 (R. S. §5055 and §5056.) (».">:>: Kraner v. Forester, 1 0. D. szGen'l Code, §11270 (R. S. t;i!) ; Kyde v. Exchange Bank, 56 §5021 . Neb. .",:,7-. Fishburn v. Mulott, 72 Owens \. Hall, 13 <». s. 571: S. Car. 572. Osborne v. Lidy, 51 0. S. 96; Safa- 13 POWER TO TRANSFER REAL ESTATE. § U [R. S. §§ 5022, 5021, 5020, 50191), against a corporation created under the laws of this State, may be brought in the county in which such corporation is situated, or has or had its principal office or place of business, or in which such corporation has an office or agent, or in any county in which a summons may be served upon the president, chair- man, or president of the board of directors or trustees or other chief officers; but if such corporation is an insurance company, the action may be brought in the county wherein the cause of action or some part thereof arose ; and if such corporation be organized for the purpose of mining or operating for petroleum, oil or gas, either exclusively or in connection with other business, the action may be brought in the county where such corporation owns or operates a mine, or a well for petroleum, oil or gas, and the cause of action, or some part thereof, arose. 36 seGen'l Code, § 11272 (R. S. § 5023 ) . This statute authorizes an action upon a policy of life insurance is- sued by a company organized under the laws of this State, to be brought in the county where the death of the party occurred. Union Central, etc. v. Pryer, 36 O. S. 534. Under the provisions of this statute an action may be maintained by the directors of a county infirmary, against a city of the second class in another coun- ty, where the boundary of such city is identical with those of a town- ship, and such township has thereby become merged in the city, for ex- penses, incurred in furnishing tem- porary relief to, and removing an insane pauper, having a legal set- tlement in such city; and such ac- tion may be brought, either in the county for which the plaintiffs are infirmary directors, and where the relief was furnished, or in the coun- ty in which the city, defendant, is situated. Directors, etc. v. City, 15 0. S. 409. §5023 (Gen'l Code, § 11272) applies to a corporation under a special charter, which has brought itself under the general laws. Knox v. Bowersox, 6 C. C. 275. An Ohio corporation can be sued in the county only in which the cor- poration is situated, or has, or had its principal place of business, or in which an office or agent is main- tained. The word "may" in § 50z? (Gen'l Code, §11272). should be read "must." Kinsey v. Burgess, etc., 4 X. P. 293; Stanton v. Enquirer Co., 7 X. P. 589; see also Railroad, etc. v. Morey, 47 O. S. 210. A city partly situated in two counties has a situs in the coun- ty where its municipal offices and government are located; and must, when the action is not local, be sued in that county. City v. Fox. (50 O. S. 340. When a corporation is properly sued with another defendant in the county where the other defendant resides, or has his place of business, a summons may be sent and served upon the corporation in the county where its principal place of business is located. Gen'l Code, § 11272. (R. S. §5023), as amended (93 O. L. 125), should be construed in connection with Gen'l Code, § 11282, (R. S. § 5035). Baldwin v. Wilson, 7 N. P. 506. §§ 15-18 MERWINE ON REAL ACTIONS. 14 Sec. 15. Venue as to railroads and stage companies. An action against the owner or lessee of a line of mail stages, or other coaches, for any injuries to person or prop- erty upon the road or line, or upon a liability as carrier, and an action against the railroad company or street railroad company, owning or operating a railroad or street railroad within the State, or against a transportation company own- ing or operating an electric traction road located upon either bank of any canal belonging to the State may be brought in any county through or into which such line, railroad, street railroad or electric traction road passes or extends. 37 Sec. 16. Venue as to turnpike company. An action other than one of these mentioned in section five thousand and nineteen, five thousand and twenty, five thou- sand and twenty-one, and five thousand twenty-two of the statute (Gen'l Code, §§ 11268, 11269, 11270 and 11271), against a turnpike road company, may be brought in any county in which any part of the road lies. 38 Sec. 17. Venue prescribed by charter of corporation. When the charter of a corporation created under the laws of this State prescribes the place where suit must be brought, that provision must govern. 39 Sec. 18. Where actions against non-residents may be brought. An action other than any of those mentioned in Gen'l Code, §§ 11268, 11269, 11270, 11271 (R. S. §§ 5019, 5020, 5021, 5022), 37 Gen'l Code, § 11273 (R. S. 8 5024. I This section applies, no matter what the cause of action may be. Railway v. Jewett, 37 O. S. 649. If railway enters its appearance, its line need not pass through county where tlie action is begun. Railway v. Morey, 47 O. S. 207. A company operating a leased line comes with- in this provision of the statute. Railway v. McLean. 1 ('. C. 112; Swan v. Railway. 4 O. D. 71. An action against a railway company in the hands of a receiver does not authorize service of summons on the ticket agent. Collins v. Balti- more, etc., 7 N. P. 270. A railway company may be served with sum- mons in a county through which it does not run when properly joined as a co-defendant. Railway v. Mc- Peek, 16 C. C. 87. 38 Gen'l Code, § 5025 ) . so Gen'l Code, § 5026 ) ; see Portage, etc. v. Stukey, 18 O. 455; Portage, etc. v. West, 6 O. S. 599 ; Knox, etc. v. Bowersox, 6 C. C. 275. §11274 (R. S. § 11275 (R. S. 15 POWER TO TRANSFER REAL ESTATE. § 18 against a non-resident of this State, or a foreign corporation, may be brought in any county in which there is property of, or debts owing to, the defendant, or where such defendant is found, or where the cause of action or some part thereof arose. 40 Our Supreme Court in discussing this provision of the statute, said : "Power to hear and determine a controversy is jurisdic- tion, and it is complete when both the subject matter of the controversy and the parties to it are properly before the court. In determining whether a given subject matter is within the jurisdiction of a court, regard to the parties is not involved. The subject matter of the original action was a contract alleged to have been broken by defendant. There is no question but that the court of common pleas had juris- diction of this subject matter, without regard to the place where the contract was made or where it was violated. The point made by the defendant is, that the court, upon the facts stated in the petition, had no power to issu? its process against the defendant, or even after a voluntary appear- ance, to proceed to render judgment against it upon the cause of action stated in the petition. "The general jurisdiction of the court of common pleas, over the person of litigants, is not confined to residents or natural persons; non-residents of the State and foreign cor- porations are as much subject to its jurisdiction as are resi- dents and domestic corporations. Except in actions of a local nature, our courts are open to all who may seek relief therein, against anyone who can be reached by its process. We know of no principle that will exempt a foreign corporation, which voluntarily comes into this State, from liability to answer any complaint which may be preferred against it in the courts of the State, that would not exonerate natural per- sons under like circumstances. * * * "The general principle declared in this provision of the statute has no reference to actions upon causes arising in this State. No matter where the cause arose, if the subject matter be within the jurisdiction of the court. Nor is the wGen'l Code, §11276 (R. S. §5027). §18 MERWINE ON REAL ACTIONS. 16 rule confined to corporations other than insurance companies. Any foreign corporation which may be found in this State, may be sued in any county in this State, in any court having jurisdiction of the subject matter of the suit. " 41 An action brought to enforce the statutory liability of a stockholder in a corporation is not "rightly brought" in this county under favor of section five thousand and twenty- seven (Gen'l Code, § 11276) and five thousand and thirty-five (Genl Code, §11282), When none of the defendants resided, or could be, or were summoned, here.'-' The provisions of the statute under consideration 43 provide that the action may be brought against a non-resident of the State, in any county in which he may have property or debts owing to him, or where he may be found. If such non- resident cannot be found and served personally, the court cannot obtain jurisdiction unless the action be one in which constructive service may be had on the defendant. "Where in such action the scope and purpose of it is to recover a money judgment and enforce its collection by the writ of execution, section five thousand and thirty-five of the statute (Gen'l Code, §1128.2), does not authorize a personal service, out of the State, on such non-resident. 44 An action begun by a receiver appointed by the court to wind up the affairs of a corporation, to collect an unpaid subscription, is a suit at law, and it is not proper practice for such receiver to join in one action all delinquent stock- holders as defendants, resident as well as non-resident of the county. The service of summons upon non-residents of the countv in such an action will be set aside. 45 4i By the court in Handy v. In- surance Co., 37 O. S. 370. At the time this action was begun the stat- ute contained this additional provi- sion: "But if said defendant he a foreign insurance company, the ac- tion may be brought in any county where the cause, or some part there- of, arose." See. in thia connection, Rainey v. Jefferson, etc., 8 C. C. 674; Osborne v. Lidy, 51 O. S. 90. Service by publication is sufficient in proceedings in garnishment against a non-resident debtor. Goe- bel v. Bank, 3 N. P. 109. 4- Lamont v. Home, etc., 10 W. L. B. 413. But see Swan v. Rail- road, 4 0. D. 71; Hull v. Standard Coal & Iron Co., 7 X. P. 157. *3Gen'] Code, § 11276 (R. S. §5027). 44 Williams v. Welton, 28 O. S. 451. 45 Smith v. Johnson, 57 O. S. 486. 17 POWER TO TRANSFER REAL ESTATE. § 19 Sec. 19. General rule as to where all other actions must be brought. Every other action must be brought in the county in which a defendant resides or may be summoned, except actions against an executor, administrator, guardian, or trustee, which may be brought in the county wherein he was ap- pointed or resides, in which cases summons may issue to any county. 46 The rules of law, as to where actions may be prosecuted, are reasonable and convenient and should be construed lib- erally with a view to advancing the remedies it affords, and such construction of the foregoing statute 47 authorizes ac- tions against executors, administrators, guardians or trustees to be brought, either in the county where they reside, or were appointed, or in which personal service of a summons may be obtained upon them. 4S Under the provisions of Gen'l Code. § 11277 (R. 8. § 5028), where the allegations of the petition upon its face make a ease in which all the defendants are rightfully joined, and service of summons is made on one or more of them in the county where suit is brought, and on the others in another county, the ques- tion of the jurisdiction of the court over the persons of the defendants served in such other county, must be raised by answer, under sections five thousand and sixty-one and five thousand and sixty-three of the statutes (G-en'l Code, §§ 11309 and 11311). 49 An action to recover damages under the act requiring com- pensation for causing death by a wrongful act. neglect, or default, may be brought in any county in the State where the defendant, or any one of the defendants, reside or may be served; and in such ease, where there were several de- fendants, against all of whom a good cause of action is al- leged, some of whom are served in the county, and others reside and are served in another county than that where the suit is brought, the validity of the service of summons in such other county, and the jurisdiction of the court over the 4' ; On'l Code, § 11277 (R. S. * 8 Osborne v. Lidy, 51 O. S. 07. § 5028 i . 40 Drea v. Carrington, 32 O. fc>. 47 Gen'l Code, §11277 (R. S. 595. §5028). §§20,21 MERWINE ON REAL ACTIONS. 18 persons of the non-resident defendants depends upon the truth of the allegations of the petition. 50 In an action to foreclose a mortgage, in which a personal judgment is asked by plaintiff such personal judgment may be entered in the case against a defendant served with a sum- mons in a county other than that in which the lands lie and the action is brought. 51 Sec. 20. How change of venue secured. When it appears to the court that a fair and impartial trial cannot be had in the county where the suit is pending, the court may change the place of trial to some adjoining county ; and if the application is made in the superior court, the change must be made to another superior court, or to the common pleas court of an adjoining county. 52 Sec. 21. Change of venue in suit by or against a corporation. When a corporation having more than fifty stockholders is a party in an action pending in a county in which the cor- poration keeps its principal office, or transacts its principal business, if the opposite party make affidavit that he cannot, as he believes, have a fair and impartial trial in that county, and his application is sustained by the several affidavits of five credible persons residing in such county, the court is required to change the venue to the adjoining county most convenient for both parties ; the cost of summoning and im- paneling a jury, and the fees of said jury sitting in the trial of the case in the court of the county to w T hich the venue is changed will be allowed and paid by the commissioners of the county from which said action is sent. 53 s. s. so Drea v. Carrington, 32 0. S 595. si Maholm v. Marshall, 29 611. saGen'l Code, §11415 (R. § 5029). The power to change venue is dis- cretionary with the court. Bank v. Ward, 11 O. 128; Lauer v. Cincin- nati, 4 X. P. 252. Right to de- mand venue waived, when. Shelly t. Jefferson, 9 0. S. 606. B3Gen'l Code, § 11416 (R. S. §5030). See Lauer v. Cincinnati, 4 N. P. 252, as to affidavits and proof; but see also 5 N. P. 60. As to change of venue in criminal case, see State v. McCarty, 52 O. S. 363. As to what the allegations in the affidavits should he, see Snell v. Cincinnati, etc., 60 O. S. 256. The act is constitutional. Ibid. As to change of venue when the judge is interested, see R. S. §550 (Gen'l Code, §1687); State, etc. v. Shaw, 43 O. S. 324; State, etc. V. 19 POWER TO TRANSFER REAL ESTATE. §§ 22-24 Sec. 22. Summons may not be served on an attorney while in another county on professional business only. Where service of summons is had on an attorney, while in another county attending to professional business only, such service is good until quashed or set aside; and until the same is set aside, another summons can not be legally issued and served upon him. 54 Sec. 23. In what cases persons may not be summoned. A member of the Senate or House of Eepresentatives, or an officer of either branch of the General Assembly, shall be privi- leged from answering to any suit which may be instituted against him in a county other than the one in which he re- sides, upon a cause of action which accrued ten days before the first day of the session of the General Assembly of which he is an officer or a member; and all proceedings in actions to which any such person is a party shall be stayed during such session, and during the time necessarily employed in going thereto and returning therefrom. 55 Sec. 24. At what time summons is returnable. When the time for bringing parties into court is not fixed by statute, the summons is returnable on the second Monday after its date ; but when it is issued to any other county, it YVinget, 37 O. S. 153; State, etc. v. Rabbitts, 46 0. S. 178. As to what the allegations must be in such case, and as to who may join in the application, see State, etc. v. Wolfe, 11 C. C. 591. As to mean- ing of the term "most convenient," see Wilson v. Cincinnati, etc., 7 N. P. 511. As to what are the issu- able facts to be heard by common pleas court, see Dodd v. Mt. Adams, etc., 20 C. C. 709. 54 Whitman v. Sheets, 20 C. C. 1. ssGen'l Code, §11278 (R. S. §5031). A person attending the hearing of his own suit in an adjoining county is privileged from the service of summons. Andrews v. Lembeck, 46 O. S. 38. A person tricked into another county for the purpose of serving him with a summons there, can have such service set aside. Pil- cher v. Graham, 18 C. C. 5. A member of the State Board of Arbi- tration cannot be served with sum- mons in a county where he may be on official business. A person brought into this State by requisition in a criminal case cannot, while here, be served with a summons. Compton v. Weder, 40 .0. S. 130. The same rule holds where service is made upon a crim- inal who is being taken through the State on requisition from one State to another. Dueber v. Dalzell, 19 W. L. B. 269. See Kinkead s Prac- tice, § 119. §25 MERWTNK ON REAL ACTIONS. 20 may be made returnable, at the option of the party having it issued, on the third or fourth Monday after its date; and the day of the month on which it is returnable shall be stated therein. 56 The service of summons upon the return day is not void, but voidable, and may be set aside by a motion filed for that purpose. 57 A right to object to such service is waiv«d by tiling an answer/'* A judgment entered by default before the expiration of the day named in the summons for answer, will be reversed on error. 59 Where an amended petition is filed after summons was issued and served on the filing of the original petition, no new summons need be issued and served. However, where the cause of action is changed by the new pleading, a sum- mons must be issued and served. If affirmative relief is asked on a cross petition and a personal judgment asked there- under, the parties against whom such relief and judgment is sought should be served with a summons. Sec. 25. Issuance of alias writs. When a writ is returned "not summoned," other writs may be issued, until the defendant is summoned ; and when the defendants reside in different counties writs may be issued to such counties at the same time. 60 seGen'l Code, § 11283 (R. S. § 5036 ) ; Devol v. Culver, 1 W. L. M. 588. B7 Mics^e v. McCoy, 17 0. S. 225. ssSchailVr v. Waldo, 7 O. S. 310. so Williamson v. Nicklin, 34 0. S. 123. A judgment so entered by mis- take is not a mistake, neglect or omission of the clerk within the meaning of §.§ 528 and 529 of the Code. (Gen'] ( ode, SS 1 1277, and § 11115. i Ibid. See also Ensign v Rogencamp, 13 Neb. 30; Williams v. Welton, 28 0. S. 451, as to the effect <>f summons, irregularly served. A summons to appear and answer in ?. civil case may be served on Sunday. Stapleton v. Reynolds, 5 A. L. 11. 242; Hastings v. Colum- bus, 42 0. S. 585. Where in an action in the court of a justice of the peace service of summons is had less than three days before the day of the appearance, the judg- ment is void. Richter v. Thornton, 10 C. C. G37. See also Robbins v. Clemens, 41 0. S. 285. '••"Gen'l Code, § 11284 ( R. S. § 5037 i . The service of an alias summons, issued and served within the life of a prior summons, is not void or voidable when, at the time the same was issued, the prior summons was not in the hands of the officer, nor under his control. Williams v. Wel- ton, 28 O. S. 451. 21 POWER TO TRANSFER REAL ESTATE. §§26,27 Sec. 26. By whom service of summons may be made. The summons shall be served by the officer to whom it is directed, who is required to indorse on the original writ the time and manner of service, or it may be served by any person not a party to the action, appointed by such officer; but the authority of such person must be indorsed on the writ; and when the writ is served by a person appointed by the officer to whom it is directed, or when the service is made out of the State, the return must be verified by oath. 01 If the summons is directed to the sheriff of one county, this will not authorize the sheriff of another county to make service. 62 The statute authorizes service of the writ by any one not a party to the action, but the person to serve the writ must be appointed by the officer, and the authority of such person must be indorsed on the writ. This is imperative language and admits of no doubtful meaning. 63 The affidavit made out of the State, verifying the return of a service of summons, in pursuance of this statute, must be made before a person authorized by the statute to take depositions. 64 Sec. 27. What parties are bound by the return. An official return of the manner of the service of the sum- mons in an action, duly made by a sworn officer is, as be- tween the parties and privies to the action and others whose rights are necessarily dependent upon, conclusive as to the facts stated therein, until vacated or set aside by due course of law. 05 eiGen'l Code, §11285 (R. S. § 5038 ) . en Collins v. Baltimore, 7 N. P. 270. ea Barry v. Hovey, 30 0. S. 348. fl* Fitch v. Campman, 31 O. S. 646. es Phillips v. Ehvell, 14 O. S. 240; Gwyn on Sheriffs, 473; Hill v. Kling, 4 O. 137; Angier v. Ash, fi Foster. 105; Diller v. Roberts, 13 Serg. and R. 00; Bott v. Burnell, 11 Mass. 105; Whittaker v. Sumner, 7 Pick. 555; Barrett v. Copeland, 18 Vermont, €9; Wilson v. Hurst, 1 Pet. C. C. 441; Bruce v. Holden, 21 Pick. 189. As to the kind of service as will be lis pendens, see Bary v. Hovey, 30 O. S. 344. "Where a judgment is directly at- tacked for want of service, it is proper, on a motion to vacate the judgment, to receive evidence that service was or was not made, al- though such evidence be in contra- diction of the record. In such case the sheriff's return is nut conclu- sive." Parker v. Van Dorn, etc., 23 C. C. 444, following Kingbo- rough v. Tousley, 56 O. S. 450. § 28 MEKWINE ON REAL ACTIONS. 22 Sec. 28. The manner in which summons is served. The service is made by delivering, at any time before the return day. a copy of the summons, with the indorsements thereon, to the defendant personally, or by leaving a copy at his usual place of residence, or, if the defendant is a part- nership sued by its company name, by leaving a copy at its usual place of doing business, or with any member of such partnership; and the return must be made at the time men- tioned in the writ, and the time and manner of service shall :be stated on the writ. If the sheriff return that he left a copy of the summons at the residence of the defendant, it is a sufficient service. There is no substantial difference between the residence of a person and his usual place of residence. 66 A summons against A and B. who were husband and wife, was returned indorsed: "Served the same b}' leaving at each of the within named defendants' * * * usual place of res- idence a certified copy of the within summons, etc. Sheriff's fees: Service, 45, Copies 50, etc.;" this was held a good service upon each of the defendants. 67 And where the service is a personal service by the sheriff, or his deputy, of the original writ of summons upon a de- fendant, and the proper return thereof made by such officer on a duplicate writ issued by the clerk of the court, this, it has been held, was a substantial compliance with sections five thousand and thirty-eight and five thousand and thirty- nine of the statutes (Gen'l Code, §§11285 and 11286). 68 Under the statute it is not a service of the summons to leave it at the "defendant's usual place of business" 69 nor is it a good service, where the sheriff, in a case where a sum- mons was issued against three defendants, makes his return in these words: "Served by leaving a copy of this writ at the residence of the within named defendant," nor is it a good service against all of the defendants, or against either * en Walk, v. Bank, 15 0. 288; see § 11285, (R. S. §5038) ; Gen'l Code, also Elliott v. Platter, 43 O. S. §2871 (R. S. §1244). 198; Vnnrlement v. Trisler, 4 N. P. 67 Elliott v. Platter. 43 O. S. 198. 37. As to power of deputy in ser- 68 Gould v. Rose, 17 C. C. 181. vice of summons, see Littleton v. go Lambert v. Sample, 25 0. S. Marshall, 36 W. L. B. 301; Hall v. 336. Lowry, Tappan, 149; Gen'l Code, 23 POWER TO TRANSFER REAL ESTATE. §§ 29, 30 of them, or any of them; 70 nor will the service be sufficient where the sheriff's return does not state that he gave the defendant a copy of the indorsement on the summons; 71 nor can a defendant be served by leaving a copy at his store. 72 Sec. 29. Service of partners in attachment — Replevin. In a civil action for the recovery of money, the plaintiff may, on the ground that the defendant is a non-resident of this State, have an attachment against the property of a de- fendant partnership of which all the members reside out of the State, Which was formed for the purpose of doing busi- ness in this State and which has its usual place of doing business in this State. Such partnership may be sued by its company name, and service may be had by leaving a copy of the summons, with the indorsements thereon, at its usual place of doing business in this State. 73 An action in replevin against a firm of co-partners, resi- dent of the State, under the firm name, must be brought in the county where such firm has its place of business, not in the countv where the goods are found. 74 &* Sec. 30. What is equivalent to service of summons. An acknowledgment on the back of the summons or peti- tion, by the party sued, or the voluntary appearance of a defendant, is equivalent to service. 75 The most usual method of entering an appearance is the method mentioned above. The customary way of entering a voluntary appearance is by separate paper containing the caption and number of the case and reciting that the defend- ants, undersigned, waive the issuing and service of summons upon them in the action, and voluntarily enter their appearance therein. But there are other methods by which an appearance may be entered. The following acts and conduct of a defendant have been considered by the court as an entry of appearance in an action : to Gamble v. Warner, 16 0. 371. 73 Byers v. Schlupe, 51 0. S. 300. « Bronton v. Allston. 4 W. L. M. ™ Farwell v. Root, 36 W. L. B. 7. 588. But this may be corrected by ". Gen'l Code, §11287 (R. S. amendment. Stuart v. Day, 3 \Y. §5040). See Xo. 71 for form of L. M. 214. waiver of summons and entry of ap- ~- Hays v. Bank, W. 563. pearance. §31 MERWINE ON REAL ACTIONS. 24 The filing of a set-off in an action before a justice; 76 obtain- ing leave to answer; 77 moving to vacate or set aside a judg- ment; 78 moving to strike papers from the files; 70 a defendant appearing in court and giving notice of appeal; 80 pleading in any manner in the action ; 81 procuring an order requiring plaintiff to amend his petition and then demurring to it ; S2 by pleading to the merits of the action. 83 It has been held not to be an entry of appearance to deny by motion the jurisdiction of the court on the ground of the insufficiency of •process, 84 to appear for the sole purpose of setting aside improper service, 85 to appear before a justice and moving for the discharge of an attachment issued on the ground of concealment, so that service cannot be made, 86 and to appear by answer denying the jurisdiction of the court. 87 Sec. 31. How service of summons may be set aside. Where the service of summons is defective, the party thus defectively served may set such service aside without enter- ing his appearance. He can do this by motion for that pur- pose and he must aver in his motion that he comes into court for the purpose of the motion only, not intending in any man- ner to enter his appearance in the case, and for the sole purpose of protesting against the courts assuming jurisdiction over his person, and ask to set aside and quash the summons in the case as to him. In case a summons is served on a de- fendant at the wrong place he may show this fact by an affi- davit, and the service will be set aside. 88 A defendant may safely file such motion, but he may not ask more than that the service be set aside; for if he does, he will enter his appearance in the action. In one case where the service was defective on a defendant, he filed his motion ?6 Godfred v. Godfred, 30 0. S. 53. to the Federal Courts; Talman v. "Brundige v. Beggs, 25 0. S. 652. Baltimore, 45 Fed. Rep. 15G. 78 Watson \. Paine, 25 O. S. 340. 84 Whitehead v. Post, 3 W. L. M. ?»Maholm v. Marshall, 29 0. S. 195. (ill. 85 White v. Friese, 2 C. S, C. so Fee v. Big, etc., 13 0. S. 503. 11. 30. si Evans v. [lies, 7 0. S. 233. sc Mawick v. Wolf, 3 W. L. B. 458. 82 O'Neal v. Blessing, 34 0. S. 34. 87 Allen v. Miller, 11 0. S. 374. 83 Kinkead's Practice, § L60, and «s Grady v. Gosline, 48 0. S. 667; petitioning for the removal of a case Smith v. Hoover, 39 O. S. 249. 25 POWER TO TRANSFER REAL ESTATE. § 32 to dismiss the action "for the reason that this court has no jurisdiction of the case, it appearing from the petition on file that said defendant is a foreign insurance company, and that no part of the alleged cause of action arose in this State" and it was decided that this was a voluntary ap- pearance in the action, and a waiver of any defect in the service of the summons. v9 In another case the defendant, by motion, appeared for the sole purpose of objecting to the jurisdiction of the court over his person, and also asked to have the cause dismissed on the ground that the court had no jurisdiction of the sub- ject matter of the action, it was held a voluntary appear- ance. 90 Sec. 32. How service of the writ is made on a corporation. A summons against a corporation may be served upon the president, maj^or, chairman, or president of the board of di- rectors or trustees, or other chief officer; or, if its chief offi- cer be not found in the county, upon its cashier, treasurer, secretary, clerk, or managing agent; or, if none of the afore- said officers can be found, by a copy left at the office or usual place of business of such corporation, with the person hav- ing charge thereof; and if such corporation is a railroad company, whether foreign or created under the laws of this State, and whether the charter thereof prescribes the manner and place, or either, of service of process thereon, or, if such corporation be a street railroad company ow r ning or operat- ing a street railroad passing through two or more counties, or a transportation company ow y ning or operating an electric traction road located upon either bank of any canal belonging to the State, the summons may be served upon any regular ticket or freight agent of such railroad company or street railroad company or transportation company; or, if there be no agent, then upon any conductor in .charge of any train or car upon such railroad or street railroad, or upon any motorman or other person in charge of any electric traction car, engine or motor upon any such electric traction road, in any county in this State, in which such railroad, 89 Handy v. Insurance, 37 O. S. so Elliott v. Lawhead. 43 O. S. 367. 171. §33 MERWINE ON REAL ACTIONS. 26 street railroad, or electric traction road is located, or through which it passes; but if the defendant is an incorporated river transportation company, whether organized under the laws of this or another State, the service of a summons may be upon the master, or other chief officer, or any of its steam- boats or other craft, or upon any of its authorized ticket or freight agents, at any port where it transacts business. 91 The question as to what constitutes a managing agent with- in the meaning of the above statute (Gen'l Code, §11288 [R. S. § 5041] and Gen'l Code, § 11290 [R. S. § 5043]), will be dis- cussed in the following paragraphs. Sec. 33. What the return of service must show. In order that the service of summons under this provision of the statute "by a copy left at the office, or usual place of business of such corporation, with the person having charge thereof" be sufficient, the return must, in substance, affirma- tively appear, (1) that the chief officer of the corporation could not be found; and (2) that none of the specified offi- cers, neither chief nor subordinate, could be found in the county. 92 The service of summons upon a railway company, under this statute, is insufficient, which recites that the summons was served upon a "ticket agent and general agent" of the de- fendant. This return is defective because it does not show that the person served was a "regular" ticket agent. 93 In a proceeding against a defunct corporation, the service of summons will be sufficient, where the return shows service of process upon the members of its last acting board of directors. 94 In an action against a railway company, it will be suffi- cient if the return shows service to have been made on a 9i Gen'l Code, §11285 (R. S; § 5041 ) . As to the service upon cor- porations in actions before a justice of the peace, see Gen'l Code, § 13454 (R. S. §6467); against a railway company, see Gen'l Code, § 10230 ( R. S. § 6478) •, against an insurance company, see Gen'l Code, § 10248 (R. S. § 6479) ; against receivers of a railway company Gen'l Code, §§ 9065, 11231, 11233 (R. S. §§ 3416, 4988 and 4991). 92 Fee v. Big, etc.. 13 O. S. 563. 93 Tallman v. Baltimore, 45 Fed. Rep. 156. After a cause has been removed to the Federal court, the sheriff will not be permitted to amend his return on the summons. Ibid. 9* Warner v. Collender, 20 O. S. 190. 27 POWER TO TRANSFER REAL ESTATE. § 34 regular ticket agent of such company. In such case the ticket agent need not be employed on the line of the road to be regarded as such. 95 But if the return of the service of the writ in an action against a foreign railway company shows that the summons was served upon a mere traveling solicitor of business for such company, the service is insufficient and will be set aside. 96 A return of service of summons to the effect that the writ was served upon G, ''agent of said company, no other officer being found," is not sufficient. 97 When a railway company is in the hands of a receiver, service of the writ may not be made upon a ticket agent of the company. 98 When the return shows service of summons upon a for- eign corporation by serving a director personally, the service is insufficient. 99 The following return of service of summons on a corpora- tion was held a good service: "By delivering a true copy of this writ with all indorsements thereon to J.H.B., secretary of the company, no other chief officer being found." 1 Where the return in an action against a corporation shows the following, the service is good: "I served this writ on the within * * * company by delivering a true and certi- fied copy thereof to the treasurer of the company," naming him, "the president or other chief officer not found in my county." - Sec. 34. What is meant by managing agent. A corporation sent a letter to its counsel in which a cer- tain person was designated as "our Cincinnati agent," and no evidence appeared showing that such person had any con- trol over any portion of the company's affairs, such person was not a managing agent within the meaning of the statute. 3 95 Woodcock v. Baltimore, etc., 46 99 Barney v. New Albany, etc., 1 W. L. B. 121 (Federal Decision in Handy, 571. Ohio). i Cincinnati v. Central, 1G W. L. so Wilson v. Northern, etc., 16 W. B. 375 (Cin. Sup. Ct.). L. B. 6 ( Cin. Sup. Ct. ) . 2 Parker v. Dorn, etc., 23 C. C. 97 The Bucket, etc. v. The Eagle, 444. etc., 21 C. C. 229. 3 The Bucket, etc. v. The Eagle, 98 Collins v. Baltimore, 7 X. P. etc., 21 C. C. 229. 270; see also Railroad v. Orme, 1 C. C. 511. §§35,36 MERWINE ON REAL ACTIONS. 28 The court in this last case said that the term "managing agent*' has been defined to be an agent having general su- pervision over the affairs of a corporation. 4 Where an express company had a general "superintendent" at Cleveland. Ohio, for the State and two or more "local agents" in Madison County, Ohio, one of whom resided at Loudon, in said county, and kept an office there, where he received and forwarded packages for the company, and did all the business of the company usually transacted in such receiving and forwarding offices, he is a managing agent within the meaning of Gen'l Code, § 11288 (R. S. § 5041 ). 5 Service of summons upon a general freight agent of a foreign railway company whose lines run into Ohio is a suffi- cient service. 6 If in an action against a foreign corporation, the return of the writ shows service upon the agent of the company, and not upon the managing agent, the service is insufficient. 7 Sec. 35. Service of summons upon joint stock companies. A joint stock company formed and residing in another State, having substantially the character and powers of a corporation, should be served with a summons in this State in the same manner as corporations are served. This is placed upon the ground that there is no statute in Ohio prescribing the manner of service of summons on such a company and such a company has more of the attributes of a corporation than of a co-partnership. 8 Sec. 36. How insurance company served. When the defendant is an insurance company, and the action is brought in a county in which there is an agency 1 hereof, the service may be upon the chief officer of such agency. 9 1 l"j>per Mississippi, etc. v. Whit- taker, It; Wis. 233; Anderson's Law dictionary. r > The American, etc. v. Johnson, 17 0.?. 640; Railroad v. Transpor- tation, 32 O. S. 135. The tendency of legislation and the policy of the law has been to facilitate the ob- taining of service upon foreign cor- porations. Ibid. o Railroad v. Transportation, 32 O. S. 135. See also Mohr, etc. v. Insurance Co., 12 Fed. Rep. 474. 7 The Fleckmeyer, etc. . v. The Commercial, etc.. 7 X. P. 613: see in this connection Gibbin v. The Kanawha, etc., 2 C. S. C. R. 75. s Express Co. v. State, .")•") 0. S. 69. 9 Gen'l Code, § 11289 (R. S. § 5042 ) . For facts showing voluntary 29 POWER TO TRANSFER REAL ESTATE. ;§ 37,38 Where a foreign corporation, an insurance company, was sued and the return of the service of summons showed service upon "John P. Whitman, agent of said Lomar Insur- ance Company, and the chief officer of its agency in Cincin- nati, no chief officer of said company found," it was held sufficient as being upon a managing agent. 1 " Sec. 37. When the service may be had upon the managing agent. When the defendant is a foreign corporation, having a managing agent in this State, the service may be upon such agent. 11 Sec. 38. Service of summons upon a minor. When the defendant is a minor, the service of summons must be upon him, and also upon his guardian, or the father, or when neither can be found, upon the mother, or the person having the care of such infant, or with whom he lives, and the manner of service shall be the same as in the case of adults, and shall be made on said persons in the order named herein. 12 appearance of an insurance compa- ny, see Handy v. Insurance Co., 3/ O. S. 366. See Gen'l Code, §9369 ( R. S. § 3607 ) , for cases when sheriff may mail service to insurance company. See also Gen'l Code § 9380 (R. S. §3617), for provisions as to appointment of agents upon whom service of summons may be made. "In an action against an insurance company service may be made on the local agent under Gen'l Code, § 11289 (R. iS. §5042), and also on the managing agents in the State under Gen'l Code, § 11290 (R. S. §5043), although not a resident of the county. The provisions of these sections in that respect are cumula- tive." Householder v. Kansas, etc.. 6 N. P. 520. lOMotir, etc. v. Lomar, etc., 7 W. L. B. 341 (Cin. Sup. ft.). n Gen'l Code, § 11290, R. S. § 5043. For discussion of meaning of the term "managing agent," see § 34. Householder v. Kansas, etc., 6 N. P. 520 ; Mohr, etc. v. Lomar, etc., 7 W. L. B. 341. In United States v. Telephone Co., 50 O. F. D. 559, it was held that the "return of a sub- poena stating that the U. S. Mar- shal had received the writ and served the same upon the "Ameri- can Bell Telephone Company ( which is a corporation doing business and found in the Southern District of Ohio), by reading the same to A. D. Bullock, the president of the City and Suburban Telegraph Com- pany (the said City and Suburban Telegraph Company being an agent and partner of the said American Bell Telephone Company, within said district)." fails to show affirma- tively the facts required to constitute a valid service, either under the judiciary acts, the rules of practice governing the courts, or the statute of Ohio, (Gen'l Code, § 11290, R. S. §5043), providing for service on a managing agent." 12 Gen'l Code, §11291 (R. S. §5044). §39 MERWINE ON REAL ACTIONS. 30 This provision of the statute does away with the old re- quirements as to service of infants under fourteen years of age and those over fourteen years of age. The service is now the same in each case. And now neither the caption of the case, nor the body of the petition, need state the age of the infant for the direction of the serving officer. In the following sections will be discussed the rights of infants in actions to which they are parties. Sec. 39. Conduct of the defense for and on behalf of an infant. In all actions where no guardian has been appointed by the probate court, the defense of an infant must be made by a guardian for the suit, who may be appointed by the court in which the action is prosecuted, or by a judge thereof, or by a probate judge. 13 The court is required by statute to see to it that a guardian ad litem faithfully discharges his duty, and the court will, upon his failure to do so, remove him and appoint another in his stead; and the court has the power to fix a compen- sation for his services, to be taxed in the cost against the infant. 14 And the answer of such guardian must deny all the mate- rial allegations of such petition prejudicial to such infant. 15 The appointment may be made upon the application of the infant, if, being of the age of fourteen years, he apply within twenty days after the return of the summons, or service by publication ; and in case of his being under said age. or of his neglect so to apply, the appointment may be made upon the application of the plaintiff, or of a friend of the infant ; but the appointment cannot be made until after service of summons, or by publication. 1 ' 5 is Gen'l Code, § 11252 (R. S. § 5003). See § 196 (Gen'l Code, §314), for appointment (if guar- dian ad litem in sale of an entailed estate. where is cited Sherman v. Sherman, 2 C. ('. N. S. 256: 2 Hates' Pleading, Practice and Forms, 1577; Pratt v Bates, 161 Mass. 315; Ream v. Wools, 61 O. S. 131. 14 Gen'l Code, § 11250 (R. S. §5001). It was held in Worther v. Ruehwein, 8 X. P. 494, that an attorney who was appointed guar- dian ad litem and who rendered services as attorney in such action, was not entitled to have such fees for such service as attorney taxed as part of the costs in the case. is Gen'l Code. § 11322 (R. S. §5074). See No. 103 for form of answer for guardian ad litem. io Gen'l Code, § 11253 (R. S. §5004). See No. 102 for form for 31 POWER TO TRANSFER REAL ESTATE. §§40,41 Sec. 40. The nature of the duties of guardian ad litem. The duties of a guardian ad litem are in no wise like those of the guardian of the person and estate of a ward appointed by the probate court. The guardian ad litem has nothing to do with the management of the property involved in the suit in which he is appointed guardian ad litem. He has no au- thority over the property or the person of the infant for whom he acts. All that a guardian ad litem does is under the control and supervision of the court, having control of the case in which he was appointed. 17 In an action in the probate court to enforce an agreement for the conveyance of real estate under the terms of a will, a guardian of a minor has no authority to waive the issuing and service of summons on his ward, nor to dispense with the appointment of a guardian ad litem unless authorized so to do by statute ; and a judgment against a minor in a case in which he has not had his day in court, w T ill be reversed upon petition in error filed by him within the statutory time after reaching the age of majority. 18 Sec. 41. The defense of an infant by guardian ad litem should be a real defense. Counsel should remember always that the provisions of the statute as to service of summons upon an infant defendant, ■and the requirements of the law as to the method of pro- cedure in all cases in which an infant is interested, are made for the protection of the infant. These requirements of the law are not mere matters of form, to be treated lightly and to be considered as of no importance. Because no one ap- pears for the infant, the attorney conducting the proceedings somehow conceives the notion that the requirement is only a matter of form; but as it is necessary to give good title for all real estate sold at judicial sale, a strict compliance with the requirements of the statute in all such cases affect- ing an infant must be complied with. The skillful examiner of title to such real estate, and the careful lawyer who conducts the action wherein the real es- order of court appointing guardian is Roberts v. Roberts. Gl 0. S„ ad litem under this statute. 896; see also Gen'l Code § 12044 it Marsh v. Marsh, 4 A. L. R. 25 (R. S. §5772), partition proceed. (Cin. Sup. Court), Gen'l Code, ings. §11253 (R. S. §5044). § 41 MERWINE ON REAL ACTIONS. 32 tate is sold by order of court, is always particular to see to it that the foregoing provisions of the law for the protection of the infant are carefully and scrupulously complied with. The service of summons upon an infant, no matter how young, and also service upon his guardian, or the father, or when neither can be found, upon the mother, or the person having the care of the infant, and the appointment of a guardian ad litem are requirements of the statute which are never at any time, in any action, to be considered as mere formal matters; for a suit cannot be prosecuted against an infant without such service and in certain instances without such guardian, unless especially excepted in special statutory pro- ceedings. It is the purpose of the statute to secure for the infant a real and proper defense; and such guardian ad litem lias not done his duty by simply filing the answer as required by the statute. The law demands that' he inquire of the in- fant, if old enough to converse intelligently, and his friends, and from all proper sources of information, what the rights of the infant are, and he is required to set such rights before the court in a proper manner and by proper evidence at the hearing of the case. It is the bounden duty of such guardian ad litem, not only to file his answer of denial, but also to protect the interests of his ward ; and the court will never, when its attention is directed to it, allow the guardian ad litem to suffer his ward to be prejudiced by his omis- sions or laches. Such answers too frequently are filed, and the proceedings on behalf of the infant, are conducted as though the action, as to the infant, were an amicable matter, and in the nature of an ex parte proceeding, involving no subject of real controversy. This is a mistake and want of attention as to how such matters should be conducted by the infant is, and has been, prolific- of useless litigation, and the source of many imperfect real estate titles throughout the State. 19 is Long v. Mulford, 17 O. S. 503, ad litem for minor heirs alleging citing Dow v. Jewell, 1 Foster (N. his ignorance of the matters con- II. i isii; Knickerbocker v. DeFrust, tained in the petition and praying 2 Page, 304; Sconce v. Whitney, 12 that the rights of his wards shall III. 150; Enos v. Capps, 12 III. 257. he protected, has the effect of a In a proceeding by an adminis- general denial and requires proof trator for the sale of lands to pay of all the material averments in debts, the answer of a guardian the administrator's petition. Wood 33 POWER TO TRANSFER REAL ESTATE. §42 The requirements of the law as to the service of a sum- mons upon infants are so strict, that in one instance, where the infant was five or six years old, the court set aside a decree long after it was entered, authorizing a disposition of the infant's real estate, even where a guardian ad litem had been appointed, and had filed an answer in the case for the infant, the infant not having been served with a sum- mons; the service of the summons in the action, as shown by the return of the writ, was by reading the same to the mother and stepfather.- Judge Rockel, in his excellent work, The Complete Ohio Probate Practice, Vol. I, Sec. 844, has well said on this sub- ject of the appointment and duties of a guardian ad litem: "The matter of appointing a guardian ad litem, I fear, is too often regarded as a mere matter of form. Attorneys likewise seem to be imbued with the idea that it is for the purpose of complying with a statutory provision. Such is not its object. The object and intent of the statute is, that such attorney should carefully investigate the rights of his ward and should look after them with a higher conscientious regard of his duty to a client than is required in ordinary cases. These minor defendants by reason of want of years are unable to know their rights or protect them. Attorneys who act as such guardians ad litem should not be affronted if the courts in such cases make direct inquiry whether they have carefully looked into the infant's rights." Sec. 42. Rights of infants reserved in judgments, how. It is not necessary to reserve in a judgment or order the right of a minor to show cause against it after attaining the age of majority; but in any case in which, but for this sec- tion such reservation would have been proper, the minor may, v. Butler, 23 0. S. 520. But see Randall v. Turner, 17 0. S. 262; Massie v. Donaldson, 8 O. 377. A decree against minor defend- ants, rendered upon the answer of their guardian ad litem, may be impeached, and reversed for fraud. Massie v. Matthews, 12 0. 352; see also on this subject under the old practice: Morgan v. Burnett, 18 0. 535; Lewis v. Lewis, 15 O. 715; Heirs v. Smith, 3 O. 355; Ben- son v. Cilley, 8 0. S. 604, where, as in most of the old cases, it was held that in proceedings by an administrator to sell real estate, a guardian ad litem could enter his ward's appearance, and personal service on the ward in case whcrj a guardian ad litem was appointed, was not essential. Robb v. Lessee, 15 O. 689. 20 Moore v. Starks, 1 O. S. 371. §§43-45 MERWINE ON REAL ACTIONS. 34 within one year after arriving at the age of majority, show cause against such order or judgment. 21 It is also provided by statute that the common pleas court or the circuit court, may vacate or modify its own judgment or order, after the term at which the same was made * * * For errors in a judgment, shown by an infant within twelve months after arriving at full age as prescribed in section fifty- three hundred and thirty (Gen'l Code, § 11603). 22 Sec. 43. Fower of a guardian to act for ward in partition proceeding:. The guardian of a minor, idiot, imbecile, or insane person may, on behalf of his ward, do and perform any act, matter or thing, respecting the partition of an estate which such minor, idiot, imbecile, or insane person, could do under the partition statutes if he were of age and of sound mind ; and he may elect on behalf of such ward to take the estate when the same can be divided without injury, and make payment therefor on behalf of such ward. 23 Sec. 44. Guardian ad litem in sale of real estate by guardian. There seems to have been no provision made by the statute for the appointment of guardians ad litem, for infant defend- ants in actions brought by guardians of infants for a sale of his ward's real estate; but it would be a prudent and safe course to have guardians ad litem for all infant defendants, appointed in such cases. 24 Sec. 45. Guardian ad litem — Sale of real estate by an admin- istrator to pay debts. Where the prayer of the petition of an administrator to sell decedent's real estate to pay his debts is not contested, 2i Gen'l Code, § 11603 (R. S. §5330). "In a suit by bill in equity against infant for the spe- cific performance of an alleged con- tract with his ancestor, he is en- titled to a day in court, after com- ing of age, to show cause against the decree, it will be error." Long v. Mulford, 17 O. S. 4-85. 22 Gen'l Code, § 11007 ( R. S. §5354). For construction of the rights of an infant where a case in his favor has been reversed and remanded, see Cary v. Kemper, 45 O. S. 93. 23 Gen'l Code, §12044 (R. S. § 572 ) . See also Lang v. Barnhard, (i \V. L. B. 635; Merrill v. Home, 5 O. S. 318; see No. 260 for form for answer of a guardian for an infant. 2-* See Roberts v. Page, 61 O. S. 06. Sep also Xos. 264 and 265 for form of appointment of guardian ad litem and his answer 35 POWER TO TRANSFER REAL ESTATE. §§46,47 guardians ad litem for infant heirs or devisees, or other per- sons having the next estate of inheritance from the deceased who are defendants need not be appointed. It is only when the prayer of such petition is contested that such guardians are appointed. The statute is explicit in saying that such guardians ad litem when appointed in such contested cases, shall not have authority to waive notice or service of sum- mons. 25 We take it from the command of the statute that if the action at any stage of the proceeding is contested, a guard- ian ad litem ought to be appointed to defend for the infant defendants in such actions. 26 Sec. 46. Service of summons by publication. When a defendant, or defendants, cannot be served by a summons in the action as provided by law, or jurisdiction over them cannot be obtained in any of the other methods provided by law, the statute authorizes service upon him by publication in a newspaper in the county in which the action is brought. This service by publication is technically called constructive service. In actions where the service is con- structive, no personal judgment can be entered against the person served in this way. 27 The action can only operate against the property of the defendant who has been served by publication. The decree of the court cannot extend further than the provisions of the statute, nor apply to persons or actions other than those mentioned in the statute. Sec. 47. When and in what actions service by publication may be made. Service may be had by publication upon a defendant who resides out of the State, or his place of residence cannot be ascertained, in an action: (1) for the recovery of real estate; (2) for the partition of real property; (3) for the sale of real property under a mortgage, lien or other incumbrance or charge; (4) to recover real property; (5) to establish or ssGen'l Code, § 107S2 (R. S. =6 See Rockel's Complete Ohio § 6144). See also Ream v. Wolls, 61 Probate Practice, see 844. 0. S. 131. 27 Wood v. Stanberry, 21 0. S. 142. § 47 MERWINE ON REAL ACTIONS. 36 set aside a will; (6) by an executor, administrator, guardian or other trustee against the creditors, legatees, distributees, or other parties, asking the direction or judgment of the court in any matter respecting the trust, estate or property to be administered as provided in sixty-two hundred and two of the statute (Gen'l Code, §§10857 and 10858); (7) seek- ing by a provisional remedy to take, or appropriate in any way, the property of a defendant, when the defend- ant is a foreign corporation; (8) relating to, or the sub- ject of which is real or personal property in this State, when a defendant has or claims a lien thereon, or an actual or contingent interest therein, or the relief demanded con- sists wholly or partly in excluding him from any interest therein, and such defendant is a foreign corporation, a non- resident of the State, or his place of residence cannot be ascertained; (9) against executors, administrators, or guard- ians, when the defendant has given bond as such in this State, but at the time of the commencement of the action is a non-resident of the State, or his place of residence cannot be ascertained; (10) where the defendant, being a resident of this State, has departed from the county of his residence, with intent to delay or defraud his creditors, or to avoid the service of summons, or keeps himself concealed with like in- tent ; (11) when a defendant in a petition in error has no attorney of record in this State, and is a non-resident of and absent from the same, or has left the same to avoid the serv- ice of summons in error, or so conceals himself that such process cannot be served upon him; (12) or proceeding under Gen'l Code, §§ 11631-11643 (title one, chapter six, division four, of the Revised Statutes §§ 5354-5365), or to impeach a judgment or order for fraud, or to obtain an order of satisfaction thereof, when a defendant is a non-resident of the State. Service may be had by publication in actions against a coiporation organized under the laws of this State, which lias failed to elect officers, or to appoint an agent upon whom service of summons can be made as provided by section five thousand and forty-one (Gen'l Code, §11288), and which has no place of doing business in this State. When, in any such case, the residence of a defendant is known, it must be stated in the publication ; and immediately 37 POWER TO TRANSFER REAL ESTATE. §47 after the first publication, the party making the service must deliver to the clerk copies of the publication, with the proper postage, and the clerk must mail a copy to each defendant, directed to his residence named therein, and make an entry thereof on the appearance docket; and in all other cases, the party who makes the service, his agent or attorney, must, be- fore the hearing, make and file an affidavit that the residence of the defendant is unknown, and cannot with reasonable dili- gence, be ascertained. 28 The memorandum to be made by the clerk on the appear- ance docket is not conclusive proof of such fact, and if he makes none, parol proof is competent. 29 In order to authorize constructive service upon a non-resi- dent of the State under paragraph three of section fifty forty- five (Gen'l Code, § 11292), such defendant must have property or debts owing to him within the State, and the relief sought must consist in taking such property or debts under some of the provisional remedies of the Code or in appropriating in some way such property or debts. 30 And under such paragraph three, of said section fifty forty- five, constructive service is authorized, where a wife brings an action against her non-resident husband for alimony and support of her child, when the only relief she asks in said action, for said purpose, is the appropriation of real property of the husband situated in the county where the action is brought, to the payment of the amount that should be al- lowed for such alimony and support. 31 After the passage of the act giving the remedy against married women, the same as if she were unmarried, a mar- ried woman entered into a contract of surety for her hus- band, in which she alleged ownership of certain realty and personalty, and desiring to aid her husband, it was held 28 Gen'l Code, §1 12(12 ( R. S. § 5045 ) . See No. 53 for form of affidavit for service by publication in attachment. See No. 283 for form of service by publication upon unknown heirs. See No. 54 for form of service by publication in attach- ment and for proof of publication. 29 English v. Moneypenny, 6 C. C. 554. 30 Williams Admr. v. Welton'a Admr., 28 O. S. 450. si Benner v. Benner 63 0. S. 220. The court has power on filing of the petition to restrain defendant from disposing of the property pend- ing the action. Ibid. But see Mussy v. Stunnel, 15 C. C. 439 as to the proposition set forth in 63 O. iS. 220. §§48,49 MERWINE ON REAL ACTIONS. 38 that, although the wife was a non-resident of the State, the written contract did not afford adequate ground for service upon her by publication. 32 Service by publication may be made by publication against a lunatic defendant, 33 and probably in an action to compel an accounting against a non-resident who was a former guard- ian, 34 and against a foreign dissolved corporation. 35 In an action against a partnership by its firm name by virtue of the statute authorizing such suits against a firm in such name, constructive service is not allowed. 30 Sec. 48. Service by publication in attachment. When a non-resident of this State has property here, it can be taken in attachment in an action for the recovery, and jurisdiction of such person may be acquired by service by publication. 37 In actions where property is attached, and summons re- turned "not served" no time is fixed by statute within which service by publication can be made. 38 If neither a summons be issued nor any affidavit is filed for service by publication in an attachment case, the court will not obtain jurisdiction either of the person or property of the defendant. 39 Sec. 49. A finding of notice by publication not subject to collateral attack. The language of our court of last resort on this subject is this: Where, in an action to foreclose a mortgage, an affidavit in due form to obtain service, by publication, is filed and publication had, a finding by the court of common pleas that the publication "is in all respects regular and accord- ing to law," and that the defendant has been "duly served with notice of the pendency of said action," is conclusive 32 Card, etc. v. Stanage, 50 0. S. 38 Baclier v. Shawhan, 41 0. S. 417. 271. Service by publication can be 33 Sturges v. Longworth, 1 O. IS. made as late as eight months aftei 544. the action is begun. Ibid. See 3i Gilbert v. Gilbert, 13 C. C. 35. also Putman v. Loeb, 2 C. C. 110, 83 Val'.ette v. Kentucky, 2 Handy as to effect of mistake in notice by 1. publication. so Smith v. Hoover, 30 O. S. 340. so Larwell v. Burke, 10 C. C. 449; 37 Bank v. Lake Shore etc., 21 Endell v. Leibrock, 33 0. S. 254. O. S. 221. 39 POWER TO TRANSFER REAL ESTATE. §§50,51 against such defendant in a collateral attack, upon the judg- ment even if he had no actual notice of the proceeding, re- sided within the State and might have been personally served with a summons, and although it does not appear of record that after the publication was made and before the hearing, an affidavit was filed stating that the residence of such de- fendant was "unknown and cannot with reasonable diligence be ascertained" as is prescribed by section five thousand and forty-eight, Revised Statutes (Gen'l Code, § 11296). 40 Sec. 50. Affidavit required before publication is made. Before service by publication can be made, an affidavit must be filed that service of summons cannot be made within this State on the defendant to be served by publication, and that the case is one of those mentioned in the preceding sec- tion ; and when such affidavit is filed, the party may pro- ceed to make service by publication. And where it is known at the time of the filing of the petition that the defendant is a non-resident, a summons need not be issued before pub- lication of the notice. 41 The filing of the affidavit as required by the statute is jurisdictional. 42 Sec. 51. How the publication must be made. The publication must be made for six consecutive weeks, in a newspaper printed in the county where the petition is filed; or, if there is no newspaper printed in the county, then in a newspaper printed in this State, and of general circulation in such county; if it be made in a daily news- paper, one insertion a week shall be sufficient; and it must contain a summary statement of the object and prayer of the petition, mention the court wherein it is filed, and notify the person or persons thus to be served when they are re- quired to answer. 43 40 Winemiller v. Laughlin, 51 0. S. 421; Hammond v. Davenport, 16 0. S. 177; Fowler v. Lessee, 2 0. S. 270; Lessee v. City, 18 0. 323. But such finding will not be conclusive on a bill of review. Trumble v. Lonorworth. 13 0. S. 431. *i Smith v. Whittlesay, 19 C. C. 415: Gen'l Code, §11203 ( R. S. §5046). See No. 53 for form of the affidavit. The filing of this affidavit is jurisdictional for service by publication in attachment pro- ceedings against a non-resident. Larwell v. Burke, 10 C. C. 440. 42 Endel v. Leibrock, 33 O. S. 260; Whitehead v. Post. 3 W. L. M. 105. 43 Gen'l Code, §11205 (R. S. § 5047 ) . See No. 54 for form for the affidavit in proof of publication. § 52 MERWINE ON REAL ACTIONS. 40 Where the party is incorrectly named in the notice but the remaining part of the notice is of such a nature and character as to correctly indicate the party and property intended to be affected by the notice, the error is imma- terial. 44 The notice requires in foreclosure proceeding that it con- tain a description of the property foreclosed. This is placed upon the ground that the non-resident defendant is more likely to get the notice. 45 In a suit to vacate a judgment, the affidavit and the pub- lished notice must identify the judgment to be vacated. 46 However, when lands are attached, the attachment will not be void because the published notice failed to give a descrip- tion of the property attached. 47 The publication of the required notice the number of times designated by the statute, and other times additional, does not invalidate the notice. 48 Sec. 52. When the service by publication is complete. Service by publication will be deemed complete at the date of the last publication, when made in the manner and for the time prescribed in section five thousand and forty-seven of the statute (Gen'l Code, § 11295) ; and such service must be proved by affidavit. 49 In an attachment suit against a non-resident defendant, the notice was first published on November 8, in a weekly newspaper. It appeared in each successive weekly issue of the paper until December 13, the last publication being in the paper of that day which was Friday. The service was complete on that day. 50 44 Buchanan v. Roy, 2 0. S. 251; etc., 2 C. 0. 110. A seizure of prop- Lessee v. Whitman, 2 O. S. 270; erty under a writ tliat is void, will C-ary v. May. l(i (). (iti. not authorize constructive service. 4s Lawler v. Wbeets, 1 Handy 40. Endel v. Leibrock, 33 O. S. 254. 46 Whitehead v. Post, 3 \V. L. M. « Kinkead's Practice. §154. 105. 4!) Kay v. Watson, 17 0. 27; 47 Core v. Oil, etc., 40 O. S. 030. Cien'l Code, §11296 (R. S. §5048). A mistake in a notice by publication See No. 54 for form of affidavit in does not vitiate an attachment prop- proof of publication. erly i::sued. Putnam, etc., v. Loeb, 6 » Core v. Oil, etc., 40 O. S. 036. 41 POWER TO TRANSFER REAL ESTATE. §§ 53-55 Sec. 53. When service of copy of petition may be made out of the State. When service may be made by publication, personal ser- vice of a copy of the summons and petition may be made out of the State ; and such service must be proved by affi- davit. 51 When service is made in this manner, the officer verifying the oath must be such a person as is authorized in this State to take a deposition. 52 A suit for specific performance of real estate situated out of this State is not such a suit as will authorize service of a non-resident defendant as provided in section fifty forty-nine of the statute (Gen'l Code, § 11297). Bs Nor will an action for a money judgment to be enforced by execution be such a suit as will authorize personal service of a defendant out of the State. 54 Sec. 54. How publication made against an unknown heir. When an heir or a devisee of a deceased person is a nec- essary party, and it appears by affidavit that his name and residence are unknown to the plaintiff, proceedings against him may be had without naming him ; and the court, or a judge thereof, must make an order respecting the publica- tion of notice, but the order shall require not less than six weeks' publication. 55 Sec. 55. Manner of service where two or more defendants are jointly liable. When service has been made on one or more defendants, but not on all. the plaintiff may proceed as follows: si Gen'l Code, §11207 ( R. S. §504!)). •"•2 Fitch v. Campan, 31 0. S. 64G. • r >3 Penn v. Haywood, 14 0. S. 302. s* Williams v. Welton, 28 0. S. 451. bo Gen'l Code. §11208 (Pv. S. §5050). Sullivan v. Weaver, 10 O. 275. See No. 283 for form of the affidavit. See also No. 284 for form of legal notice. A finding of the court that unknown heirs had heen notified by the publication of notice in a newspaper named, for a period specified, is, in effect, equivalent to a notice given in pursuance of the previous direction of the court; at least it ought to be so regarded when questioned in a collateral pro- ceeding. Rhodes v. Gunn, 35 O. S. 387. §§56,57 MERWINE ON REAL ACTIONS. 42 1. If the action is against defendants jointly indebted upon contract, he may proceed against the defendants served, un- less the court otherwise direct. 2. If the action is against defendants severally liable, he may, without prejudice to his rights against those not served, proceed against the defendants served. 50 When part only of the defendants have been served by summons, and a judgment is taken against all, the judgment is erroneous and voidable but not void. 57 Sec. 56. Lis pendens. When the summons has been served or the publication made, the action is pending so as to charge third persons with notice of its pendency ; and while pending, no interest can be acquired by third persons in the subject of the action, as against the plaintiff's title. Space forbids further discus- sion of this subject. In the note below will be found the cases on this topic. 58 Sec. 57. Lis pendens as to suits in other counties. When any part of real propert.y, the subject matter of an action, is situated in any county or counties other than the one in which the action is brought, a certified copy of the judgment in such action must be recorded in the recorder's office of such other county or counties, before it shall operate 3«Gen'l Code, §11209 (It. S. §5051). 57 Douglass v. Massie, 16 O. 271. See on this subject the following: Moore v. Robinson, O. S. 302; Sidener v. Hawes, 37 0. S. 532; Newberg v. Munshower, 20 0. S. 617. See also under this subject Larrimer v. Clemmer, 31 O. S. 400 Aucker v. Adams, 23 0. S. 543 Bazell v. Belcher, 31 0. S. 572 Yoho v. MeGovern, 42 0. S. 11. BSGen'l Code, § 11300 (R. §5052). Stout v. Lye, 103 U 66: Omwake v. Jackson, 15 C 615 272 523 Bocher v. Collier v. Shawan, 41 0. Beckley, 33 0. S. c. s. s. Fox v. Reeder, 28 0. S. 181; Brisbane v. Stoughton, 17 0. 482; Irvin v. Smith, 17 0. 243; Ludlow v. Kidd, 3 0. 541; Turner v. Cre- bill, 1 O. 372; Smiley v. Dewey, 17 0. 156; Porter v. Barclay, 18 O. S. 546; Union, etc. v. Union, etc., 6 0. S. 254; Clark v. Strong, 16 0. 317; Tollerton v. Williard, 30 0. S. 570; Fletcher v. Fletcher, 15 C. C. 273; Brundage v. Beggs, 25 O. S. 652; Barry v. Hovey, 30 O. S. 344; Stoddard v. Meyers, 8 0. 203; Gibbon v. Dougherty, 10 O. S. 365; Hamlin v. Bevans, 7 O. (pt. I) 161; Gunbler v. Tremble, 14 0. 323; Howe v. Hartness, 11 0. S. 440; Bennett v. Williams, 5 0. 461. 43 POWER TO TRANSFER REAL ESTATE. § 57 therein as notice so as to charge third persons, as provided in the preceding °ection ; but it shall operate as such notice, without record, the county where it is rendered; but this section shall not apply to actions or proceedings under aay statute which does not require such record. 59 saGen'l Code, §11301 (R. S. to a judgment in Federal Courts. §5053). Benton v. Shafer, 47 0. Stewart v. Railway, 53 0. S. 151. S. 117; this statute not applicable CHAPTER II. THE LAW AND PROCEDURE IN SALE OF REAL ES- TATE UNDER JUDGMENTS, ORDERS OF SALE AND EXECUTIONS. SECTION. 58. What is a judgment and what an order. 59. The judgment must be con- fined to the issues. 60. Judgments without jurisdic- tion of parties or subject matter, is void. 61. Judgments cannot be collater- ally attacked. 62. A judgment of the court as between the parties is final. 63. The effect of court's finding of facts giving it power to enter judgment. 64. Effect 'of a voidable and void judgment. 65. The rule caveat emptor ap- plies to purchasers at judi- cial sale. 66. Effect of sales made under a void and voidable judgment and decree. 67. Purchasers at judicial sale protected by the recording statute. 68. .Judgments may be vacated during the term, when. 69. Judgments may be vacated after term. when. 70. Effect on purchaser's title at judicial sale when judgment or decree reversed and set aside. 71. Remedy of purchase at sal*- on execution, if the Bale is invalid. 72. Not nee 'ssary to reserve rights of infants in a judgment to be entered against them. SECTION. 73. Bona fide purchaser not af- fected by the preceding sec- tion. 74. Manner in which a dormant judgment may be revived. 75. The . limitation as to revivor of judgment. 76. New parties to judgment and revivor of judgment when a party dies; judgment in cir- cuit court remanded to com- mon pleas for execution; how revived after death. 77. Judgments against parties, and against defendants at different times. 78. A judgment will operate as a conveyance when. 79. How judgment entered against a married woman. 80. All judgments must be en- tered by clerk in conformity to verdict. 81. When the court to order what judgment to be entered on verdict. 82. When judgment may be en- tered against the verdict. 83. All judgments must be en- tered in the journal. 84. Complete record of case to be made, unless waived. 85. When record is t:> be made and Bigned. 86. Of what the complete record shall consist. 87. Court t<> cause record to be completed in certain cases. 44 45 KEAL ESTATE UNDER JUDGMENTS. SECTION. 88. What index is required for judgments. 89. The precipe for an execution. 90. The execution ; nature and kinds thereof. 91. The kinds of executions. 92. What property subject to levy and sale. 93. Partnership property levied on, how. 94. When liens of a judgment at- tach to lands. 95. Lien of judgment of supreme court; lien of judgment of the common pleas court in cases removed to supreme court. 96. Lien of transcripts of justices and mayors by filing of transcripts with the clerk of the court of common pleas. 97. The lien of such judgment. 98. Executions upon transcripts of judgments of justices filed by the clerk of the courts of common pleas, and sales thereunder. 99. When a judgment execution becomes dormant and ceases to be a lien. 100. The writ of execution; its command, and how sales made thereunder. Execution operates against a partner- ship, how. 101. In what cases no preference given to execution. 102. Goods and chattels to be first taken; for want thereof, lands to be levied upon. 103. Lands must be appraised by freeholders before sale. 104. Appraisers cannot be pur- chasers. 105. The appraisement must be made upon actual view. 106. Parol evidence may be intro- duced to show mistake in an appraisement and the ap- praisement may be set aside, when. 107. What must be included in the appraisement. SECTION. 108. When real estate may be sold without valuation. 109. The lien of a judgment re- stricted to two-thirds of the appraised value of the lands levied on. 110. Lands cannot be sold for less than two-thirds of the ap- praisement; except as to en- forcement of a junior lien; court may determine mini- mum amount for which real estate may be sold. 111. Persons occupying trust rela- tions cannot bid at their own sales. 112. Purchasers making unsatisfac- tory bid,, to pay additional sum to satisfy costs and al- lowances. 113. Requirement as to advertise- ment of salo of land under order of court. Requirement as to description or location of property. 114. Requirements as to publica- tion of sale of real estate. 115. Publication of notice of sale in newspapers other than those printed in the English language. 116. The return of the writ by the sheriff and the record thereof. 117. Purchaser failing to pay, punished for contempt. 118. Confirmation of "sale; order for deed; officer may retain purchase money until sale confirmed. 119. Right of judgment debtor to redeem at any time prior to confirmation. 120. When master commissioner may convey real estate. 121. When slier ill' may act as and for master commissioner. 122. The recitals required in a deed of a sheriff or master com- missioner. 123. The effect of a deed made by a sheriff or master commis- sioner. §58 MERWINE ON REAL ACTIONS. 46 SECTION. 124. Printer's fee for publication of sale may be required in ad- vance. 125. Where sales of real estate are required to take place; alias execution against lands, is- sued, when. 126. Proceedings when creditors direct separate levies to be made on separate parcels of land. 127. Successor of sheriff may make deeds for lands sold by predecessor. 128. Rights of party, when prop- erty not subject to execution is sold. 129. Relief of officer who levies up- on and sells wrong property in good faith. 130. Remedy when one of tha co- sureties pays for such prop- erty. 131. When judgment looses prefer- ence as a lien. Lien of su- preme and circuit court judgments. How long to continue. SECTION. 132. When new appraisement for sale of real estate on execu- tion may be made. 133. New appraisement and terms of sale of mortgaged prem- ises. 134. When execution to be re- turned. 135. How judgment against princi- pal and surety entered. Ex- ecution in such case. 136. Fee of appraisers of real es- tate; penalty for neglecting to serve as an appraiser. 137. Execution may issue to an- other county and may be returned by mail. 138. The execution docket and what it should contain; the index thereto. 139. Proceedings when order of sale issued in case not on trial docket. 140. Failure of sheriff to perform duties required in connec- tion with sale of real estate. Sec. 58. What is a judgment and what an order. A judgment is the final determination of the rights of the parties in an action, and a direction of a court or judge made and entered in writing and not included in a judgment is an order. 1 This statutory definition of a judgment has been held to be broad enough to comprise all final judgments and all final decrees. 2 iGen'l Code, §11582 (R. S. §5310). ''As in logic, judgment is an af- firmation of a relation between a particular predicate and a particu- lar subject, so, in law, it is the affirmation by the law of the legal consequences attending a proved or admitted state of facts." Black on Judgments, § 1. "A judgment is the final consid- eration and determination of a court of competent jurisdiction in the matter submitted to it." Ibid. Whitwell v. Emory, 3 Mich. 84. "It is the decision or sentence of the law given by a court of jus- tice or other competent tribunal as a result of proceedings instituted •therein for the redress of an in- jury." Bouv. Law Die. See Tidd's Practice, 930; Mahonings Bank's Appeal, 32 Pa. St. 160. 2 Conrad v. Everich, 50 0. S. 480. 47 REAL ESTATE UNDER JUDGMENTS. §58 The common law definition of a judgment is, the decision or sentence of the law pronounced by the court or other competent tribunal upon the matter contained in the record 3 At common law an oral opinion of a judgment announced by a court in a case before it was a good judgment, and an execution could be issued upon it. Under the code and under the practice in Ohio, a judgment carries with it no force until it is recorded. An oral judgment or decision of the court is completely under the control of its judge or judges until the final decree is entered of record. 4 A decree, as defined by Judge Black, 5 is the determina- tion, sentence or judgment of equity pronounced by a com- petent court upon a controversy submitted for its decision. The chief points of difference between a judgment and decree are these: A judgment in contested cases follows the finding of a verdict; the decree is the decision of a judge in an equity case passing on all of the questions raised; a judgment does not compel anything but the payment of money, and this only by the sale of the debtor's property; a decree may enforce the doing of. acts other than the pay- ment of money, and be enforced by punishment for contempt of court; an execution may issue upon a judgment, and on a decree only to enforce an order of sale ; a judgment cannot meet all the exigencies of litigation; a decree may do this in so far as it is within the power of the courts to enforce anything. An order is, "A decision made during the progress of the case either prior or subsequent to final judgment settling some point of practice or some question collateral to the main issue presented by the pleadings and necessary to be 3 Wiley v. Lewis, 4 X. P. 212; Freeman on Judgments, § 2. ^ Wiley v. Lewis, 4 X. P. 212; but see Coe v. Erb, 59 0. S. 259. As to the time and manner of en- tering judgments by the clerk, see Gen'l Code, § 11599* (R. S. §5326). As to the manner in which judg- ments may be vacated during the term, see Gen'l Code, § 11575 (R. S. §5305), and after the term, Gen'l Code, §11631 (R. S. §5354). It might be said here that the judgment announced by the court, before it can be made a lien upon real estate, must be recorded. There may be a different rule as to the validity and effect of an oral decision of the court not entered on the journal. As we are con- cerned only with the judgments which are a lien upon real estate, and which may eventually pass into a sale thereof, we do not fur- ther investigate this subject. 5 Black on Judgments, § 1. § 59 MERWINE ON REAL ACTIONS. 48 disposed of before such issue can be passed on by the court, or necessary to be determined in carrying the execution into effect." 6 An order must be in writing before it will carry with it any legal sanction. 7 Judgments are either final or interlocutory. The statute defines a final order to be, "An order affecting a substan- tial right in an action, when such order in effect determines the action and prevents the judgment, and an order affect- ing a substantial right made in a special proceeding or upon a summary application in an action after judgment." 8 All other orders made during the litigation of any case, and before the final hearing on its merits, are interlocutory orders. 9 Sec. 59. The judgment must be confined to the issues. The examiner of title to real estate, sold under a judicial decree, must look carefully to the pleadings in the case un- der consideration. He must be sure that the petition, if filed under a statute authorizing a sale, states a good cause of action ; for should the petition fail to state any of the statu- tory requirements, the authority of the court will avail noth- ing toward giving the purchaser title. Again, the court can pass on the issues raised by the pleadings only, for should the court go outside of the issues of the case, and determine some question not raised in them, the decision will carry with it no power for its enforcement. Even a judgment of a court upon a subject of litigation within its jurisdiction, but not brought before it by any statement or claim of the parties, is null and void, and may be collaterally impeached. 10 Jurisdiction is the right to adjudicate concerning the subject matter of a given case. To constitute this there are three essen- tials : (a) The court must have cognizance of the class of G Loring v. Illesey, 1 Cal. 27; 27 form for decree and order of Black on Judgments, S 1. sale. TWinton v. Cornish, 5 0. 477. i" Spoors v. Coen, 44 0. S. 497; sGen'l Code, §12258 ( R. S. Porterfield v. Butler, 47 Miss. 150; S(i707). 12 Am. Rep. 329; Armstrong v. sKinkead's Practice, S945; Barton, 42 Miss. 50G ; Still v. Pal- Freeman on Judgments, §29. Sec mer, 41 Miss. 89; Black on Judg- No. 3 form for judgment, and No. ments, § 184; Freeman on Judg- ments, § 135 a. ■49 REAL ESTATE UNDEli JUDGMENTS. § 60 cases to which the one to be adjudged belongs. (b) The proper parties must be present, (c) The point decided must be in substance and effect, within the issue. That a court cannot go out of its appointed sphere, and that its action is void with respect to persons who are strangers to its pro- ceedings, are propositions established by a multitude of au- thorities. 11 The issues must state a cause of action and the judgment cannot go outside of the issues made up by the pleadings and undertake to decide matters not brought into the ease, but this rule is not so strict as to require the petition, or cross-petition, as the case may be, to be so perfect in the form and substance as to withstand a demurrer interposed against it. 12 "•o* Sec. 60. Judgments without jurisdiction of parties or subject matter, is void. In the examination of title to real estate, sold under judi- cial decree, one of the most important inquiries is, has every one who had an interest in the property, at the time the suit was begun, been brought into the case, and if so, did the court make the proper orders necessary to divest him of his title thereto? It is elementary that everyone must have his day in court. A court has no power to pass upon anyone's property rights without giving him a chance to be heard. 13 Any order made as to the rights of anyone to real estate sought to be sold by the court, though made a party defend- ant, who has not been served with a summons, or has not entered his appearance in some of the methods pointed out by law, 14 is void as to such party, and he can assert his rights, at any time, in any manner, unless barred by limi- tation of time. Counsel conducting any proceeding in which real estate is sold, should use the utmost diligence in search- 11 By the court in Munday v. IS It is an elementary principle Vail, 43 X. J. L. 418; Strobe v. that no man's rights should be ad- Downer, 13 Wis. 11; Black on judged until he has had his day in Judgments, § 184; Koelsch v. court, and has had an opportunity Mixer, 52 O. S. 207 ; Southward v. to be heard. Trimble v. Long- Jameson, 66 0. S. 311. worth, 13 O. S. 438. 12 Kinkead's Practice, §807; "See Sections 5 to 39 inclusive, Buchanan v. Roy, 2 O. S. 252; supra. Shauwkin v. Street, 16 O. 5. 1. §60 MERWINE ON REAL ACTIONS. 50 ing the records of the title to the real estate sought to be sold to secure the names of every lienholder, whether by mortgage, judgment, mechanic's lien of any kind, whether by attachment, foreign execution, vendor, and everyone claim- ing any interest in the title thereto, and every such person holding such claim, lien or interest in the title thereto, should be made a party defendant, and required to set forth such lien or interest. The petition should ask that they do this upon penalty of having their lien or interest in the real es- tate barred by order of the court. If the lien or interest of any such claimant be invalid, the petition in such case should so allege, else such interest, in case of a default to answer, would be a cloud upon the title and would frighten away purchasers at the sale. 13 After such persons who hold any interest of record (and not of record, if plaintiff has had notice of their interest) have been made parties to the action, the practitioner then must have each of them served in the manner pointed out by law, and the record should show the manner of service. Great care should be exercised in respect of the rights of infants, or insane or other defendants under guardianship. Service of summons upon them should be made as required by the statute. 16 As to them, if the statute has not been followed, their rights remain in the real estate unaffected by any order of the court and unaffected by any judicial sale of their real estate. In case of any irregularity of the proceedings, there is no presumption to aid the record. 17 Again, counsel should see to it that the court m which he brings his action has jurisdiction to do what is asked. If is Rinehart v. Chittenden, Su- preme Court, unreported. "A first mortgagee, who is made a defend- ant to a suit tor the foreclosure of a second mortgage, without any al- legation in the complaint contest- ing his title, has a right to assume that the proceeding is to be con- ducted upon the theory that his lien is paramount to that of the plaintiff." Strobe v. Downer, 13 Wis. 10; Southward v. Jameson, G6 0. S. 311; Koelsch v. Mixer, 52 0. S. 207; Spoors v. Coen, 44 0. S. 497; Munday v. Vail, 43 N. J. L. 418; Black on Judgments, vol. 1, § 184; Freeman on Judgments, vol. 1, § 158. 1,5 When the record shows affirm- atively that infants were not served, the decree as to them is void. Moore v. Starks, 1 0. S. 369. i 7 See §38 as to the manner of service upon infants. See Nos. 195 and 190 for the conduct of the de- fense of an insane person, though not under guardianship. 51 REAL ESTATE UNDER JUDGMENTS. § 61 the court has no jurisdiction of the subject matter, then a purchaser of the real estate takes no title, and the person or persons whose real estate is sought to be sold, can, at any time, take possession of the same. The order of the court in such case affords no protection. A judgment of the court, without jurisdiction, is an absolute nullity. 18 Waiver of summons and entry of appearance may give the court jurisdiction over the person of the defendant, but it cannot give the court jurisdiction over a subject matter over which the court is not authorized to exercise its jurisdiction. 19 Sec. 61. Judgments cannot bei collaterally attacked. When a court has jurisdiction of the subject matter and the parties, and a case is made by the pleadings, its judg- ment, however erroneous, is binding until reversed, and such errors are not available on collateral attack on the judg- ment. 20 A direct attack on a judgment is one by which the judg- ment is directly assailed by some mode authorized by law. A collateral attack on a judgment is an attempt to defeat the operation of a judgment in a proceeding where some new right derived from or through the judgment is involved. 21 isPennywit v. Foote, 27 0. S. 600; Spier v. Corll, 33 O. S. 236; Gilliland v. Sellars, 2 0. S. 223; Moore v. Starks, 1 O. S. 369; Fleischman v. Walker, 91 111. 318; Santon v. Ballard, 133 Mass. 464; St. Louis v. Coal Co., Ill 111. 32; Winemiller v. Laughlin, 51 0. S. 421; Adams v. Jeffries, 12 0. 253. See § 9 and following as to venue. if Kinkead's Practice, § 806 ; Gil- liland v. Sellars, 2 O. S. 223. See No. 71 for form. 20 Hammond v. Davenport, 16 O. S. 182. It has been settled in this State, in respect of domestic judg- ments of courts of general juris- diction, that, where it appears from the record that the court has positively found the fact or fact? on which its jurisdiction legally rests, the jurisdiction may not afterward be collaterally ques- tioned; that, though the judgment may be or may have been avoid- able when attacked in a direct pro- ceeding for that purpose, it is not and may not be shown collaterally to be void. Ibid. Callen v. Ellison, 13 0. S. 466. See, also, on this subject, Trimble v. Longworth, 13 O. S. 431; More v. Robinson, 6 S. 302; Fowler v. Whiteman, 2 S. 270; Reynolds 344; Newman 323 ; Corcoran 409 ; Douglass v. 271; Payne v. Moreland, 15 0. 435; Boswell v. Sharp, 15 O. 447; Adams v. Jeffrey, 12 O. 253; Fos- ter v. Douglass, 8 O. 87; Douglass v. McCoy, 5 0. 522; Buell v. Cress, 4 O. 327; Biarelow v. Bigelow, 4 O. 428. 21 By the court in v. Towsley, 56 0. S, action on a personal judgment, whether rendered by a court of this o 20 O 18 O Stansbury, v. Cincinnati, v. Loring, 17 Massie, 16 0. Kinjjsborough 458. "In an §62 MERWINE ON REAL ACTIONS. 52 Sec. 62. A judgment of the court as between the parties is final. A judgment in an action upon the merits of a case is final and such judgment is a bar to a second suit for the same cause, and when a matter is finally determined in an action between the same parties by a competent tribunal, it is to be considered at an end, not only as to what was determined but also as to every other question which the parties might have litigated in the case. And as to these two proposi- tions, decrees in chancery stand upon the same footing as judgments in law. 22 The principle of the finality of the judgment is known as res judicata; it has been said, as a fundamental rule, that, when a matter has once become res judicata there shall be an end to the question. 23 The reason and principle upon which this rule is based rests upon the expediency of ending the contention of the parties and of accomplishing the ends of justice by a single and speedy decision of all their rights, and again, "human life is not long enough to allow of matters once disposed of, being brought under discussion again." The rule is also founded on a wise public; policy which requires stability of State or elsewhere, it is competent to plead and prove in defense, though it lie in contradiction of the record, that, the defendant was not served with process, nor jurisdic- tion of his person otherwise ob- tained by the court rendering the judgment." Such defense is not, a collateral attack upon the judg- ment. Ibid. 22 Robey v. Rainsberger, 27 0. S. 677; Petert-ine v. Thomas. 28 0. S. r>!)7; Covington v. Sargeant, 27 <>. 233; Binton v. McNeil, 5 < >. r»OD; Babcock v. (amp, 12 0. S. 11; Loudenback v. Collins, 4 0. S. 251 , Welch v. Childs, 17 0. 8. :ii«). .Mr. Freeman, in his work on Judgments. §249, puts the propo- sitions above in the following lan- guage : "Adjudication is final and con- clusive, not only as to the matters actually determined, hut as to every other matter which the par- ties might have litigated and have decided as incidental to or essen tially connected with the subject matter of the litigation, and every matter coming within the legiti- mate purview of the original ac- tion, both in respect to matters of claim and defense." Harris v. Har- ris, :!t; Barb, ss ; ( 'lemons v. I Hem ons, :'.7 X. Y. 59; Burford v. Kur sev, is Miss. 843; Bass v. Spooner, 15 Ind. 18!) ; Tusca v. O'Brien, 88 X. V. 446; Case v. Beauregard, 101 r. s. 688; Thomas v. Myrick, 21 Minn. 1; Jacobsin v. Miller, 11 Mich. -90; Knight v. Atkinson, 2 Tenn. 384, 28 Great Northern v. Mosop, 17 Com. B. 140. 53 REAL ESTATE UNDER JUDGMENTS. §63 judicial records for the protection of those who acquire rights and property in reliance upon their conclusive effect. 24 If the rule were otherwise there would be no end to liti- gation ; for a judgment would finally come to the one whose money and time would enable him to exhaust his adversary. Sec. 63. The effect of court's finding of facts giving it power to enter judgment. In all cases, where the court finds and states in a judg- ment, facts giving the court power and jurisdiction to enter the judgment or decree, such finding imports absolute verity and is conclusive upon parties and their privies. While such finding is unreversed, it is conclusive of the matter so found. The judicial record of a judgment or decree cannot be con- tradicted by parol, nor is the truth of the matters therein recited open to investigation. Were the findings, judgments and decrees of the court open to investigation, there would be no security for the innocent purchasers of real estate at judicial sale. If the records of a sale of real estate, under decree of the court, did not import absolute verity, then every purchaser of real estate, under decree of the court, would be required to look beyond the record to see whether clerks, sheriffs, courts and attorneys did their duty, commit- ted no error, and each had the power to do the various things set forth in the record. Such a condition would make the complete records in our courts of judicial sales of real estate no nrotection whatever, but such records would be a snare to nonest purchasers. 25 24 Robey v. Rarinsberger, 27 0. S. 677; Oreat Northern v. Mosop, 17 Com. B. 140; Boswell v. Sharp, 15 O. 441 ; Kingsbury v. Towsley, 56 0. S. 450. This rule "seems to have been adopted from right and necessity to give confidence to the judicial action of the country, and to protect those who have made purchases on the faith of judicial sales." Budd, J., in Boswell v. Sharp. 15 0. 447. 2?Callen v. Ellison, 13 O. S. 455; Lessee v. Whitman, 2 0. S. 270; Moore v. Starks, 1 0. S. 369; Bos- well v. Sharp, 15 0. 447; Buchanan v. Roy, 2 0. S. 251; Richards v. Skeff, 8 O. S. 589; Trimble v. Longworth, 13 O. S. 431; Miller v. Erdhouse, 2 W. L. B. 84. Probate Courts, in Ohio, are courts of rec- ord in the fullest sense of the term. Their findings, orders and judgments import absolute verity, and are not subject to collateral attack. Schroyer v. Richmond, 16 O. S. 455; Swazey v. Blacknian, 8 O. 5. A finding by the Probate Court that service is complete can- not be impeached collaterally. Railroad v. Belle Center, 48 0. S. 273. §64 HER WINE ON REAL ACTIONS. 54 Sec. 64. Effect of a voidable and void judgment. All judgments are either voidable or void. A voidable judgment, in so far as the record is concerned and in so far as it concerns property rights, is good, valid and binding until it is set aside by the court in an action brought for that purpose. Voidable judgments, as shown above, cannot be attacked collaterally. This principle is assuming a great deal of importance in this State, especially as to judicial sale of real estate. Real estate sold under a voidable judg- ment or decree gives a title that cannot be assailed except by some of the methods given by statute to reverse the order, decree, or judgment in the case in which the real estate was sold. The statute gives the right to prosecute error for the reversal or setting aside of the decree or judgment, within a proper time ; it also gives any aggrieved party the right, at any time, after the term at which the judgment was ren- dered, to file his petition to vacate and set aside the judg- ment for any of the grounds mentioned and set forth in the statute. In addition to these methods a judgment or decree may be set aside by a proceeding in equity. 26 The rights of a purchaser, who has purchased real estate under a decree or judgment of the court, which is voidable and can be set aside, are discussed at another place in this work. 27 We find an entirely different principle applicable to void judgments. A void judgment is subject to a collateral at- tack. If a judgment is void, it has no force or effect, and it can be assailed in any action, by anyone. Such a judg- ment is void anywhere and for every purpose. A purchaser of real estate sold under a void judgment takes no title. 28 It has been said of such judgment : 26 Kingsborough v. Towsley, 56 O. S. 402. 27 Boswell v. Sharp. 15 O. 447 ; Moore v. Robinson, 0. S. 302 ; . Wyer v. Zanc, 3 0. 30G; LaGrange v. Ward, 11 0. 258; Paine v. Moor- head, 15 0. 435; Buell v. Cross, 4 O. 327; Cochran v. Loring, 17 O. 409; Toledo v. Preston, 50 0. S. 301; Shroyer v. Richmond, 10 0. S. 400. As to the protection afforded purchasers in such cases, see R. S. §5400 (Gen'l Code §11702). 28 Kingsbury v. Towsley, 50 0. S. 450; Ream v. Wools, 01 0. S. 131; Spoors v. Coen, 44 0. S. 407; Moore v. Starks, 1 0. S. 330; Sheldon v. Newton, 3 0. S. 404; fallen v. El- lison, 13 0. S. 455; Spier v. Corll, 33 0. S. 230; Winemiller v. Laugh- 55 REAL ESTATE UNDER JUDGMENTS. § 64 "A void judgment is, in legal effect, no judgment. By it no rights are divested. From it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars anyone. All acts performed under it and all claims flowing out of it are void. The parties attempting to enforce it may be responsible as trespassers. The purchaser at a sale by virtue of its au- thority finds himself without title and without redress. The first and most material inquiry in relation to a judgment or decree, then, is in reference to its validity. For if it be null, no action upon the part of the defendant, no resulting equity in the hands of third persons, no power residing in any leg- islative or other department of the Government, can invest it with any of the elements or power or of vitality. It does not terminate or discontinue the action in which it is en- tered, nor merge the cause of action; and it therefore cannot prevent the plaintiff from proceeding to obtain a valid judg- ment upon the same cause, either in an action in which the void judgment was entered or in some other action." 23 A purchaser at a judicial sale made under a void judg- ment cannot sustain his title. Title to real estate sold under a voidable judgment is good as long as the judgment remains in force. Another distinction between a void and a voidable judg- ment, is the lack of power or want of jurisdiction in the court, and a wrongful or defective execution of power. In the first instance, all acts of the court, not having jurisdic- tion or power, are void, in the latter voidable only. A court then may act, first, without power or jurisdiction; second, having power or jurisdiction, may exercise it wrongfully or third, irregularly. In the first instance, the act or judg- ment of the court is wholly void, and is as though it had not been done. The second is wrong and must be reversed on error. The third is irregular and must be corrected by motion. 30 lin, 51 O. S. 421; McAlpine v. Fes- void, the land itself sold to satisfy terwald, 57 O. S. 524; Southward it may be recovered back, and such v. Jamison, G6 0. S. 290. proceeding may be impeached col- 29 Freeman on Judgments. §117, laterally. The result or conse- vol. 1, and authorities there cited. quence, in such case, is precisely as so Lessee v. Loring, 17 0. S. 423. though no such judgment or decree "If the judgment or decree is had ever been rendered or pro- §65 MERWINE ON REAL ACTIONS. 56 Sec. 65. The rule caveat emptor applies to purchasers at judicial sale. The sheriff or other officer, who sells real estate under a decree or judgment of the court, never warrants title; he sells only the interest of the judgment debtor in the lands. At such sale the rule caveat emptor applies. This term means, "Let the purchaser bew r are," and it applies in all its rigor. Under this doctrine a purchaser at a judicial sale, whether by a sheriff, master commissioner, an assignee in insolvency, trustee in bankruptcy, executor or administrator, by order of the probate court or at private sale, buys with his eyes open at his own risk, and he is without recourse in case it is afterward ascertained that lienholders were not made a party and have a substantial interest in the real estate. Such purchaser is bound to search the record to ascer- tain the condition of the title before bidding, and failing to do so, he must abide by the consequences of his neglect. 31 nounced. If the judgment or de- cree be not void, but simply errone- ous, subject to reversal upon writ of error or review, the consequences are wholly different. They must be impeached directly, and cannot be questioned collaterally; and, when reversed, the defendant shall have restitution in money against plain- tiff, and purchasers hold the land or property acquired by the sale had under such judgment or decree undisturbed." Boswell v. Sharp, 15 0. 464; Lessee v. Mooreland, 15 0. 445. 3i Mechanics v. O'Conner. 29 0. S. G55; Hagerty v. Columbus, 14 O. D. N. P. 1; French v. Millard, 2 0. S. 45; Brickell v. Miles, 2 N. P. N. S. 154; Scribner v. Lock- wood, 9 O. 187; Vattier v. Lylte, 6 0. 473; Pittsburg v. Lynde, 55 O. S. 23; Arnold v. Donaldson. 4(1 O. S. 73; Ketchem v. Fitch, 13 0. S. 201 ; Dunlap v. Robinson, 12 0. S. 530; Westfall v. Dun-ran, 14 0. S. 276; Creps v. Baird, 3 0. S. 277; Cor- win v. Benham, 2 (). S. 37; Rob- erts v. Doun, 20 W. L. 1?. 397; Mc- Kenzie v. Purill, 15 O. S. 162; Dresbach v. Stein, 41 0. S. 70; Rid- dle v. Bryan, 5 0. 48. A party bidding with notice of an equity takes subject thereto. Gutshall \. Salsbury, W. 127. A party bid- ding under mistaken notion that he was bidding on other property will be relieved. Falls v. Lough- lad, 14 W. L. B. 56. Defect of title no reason for setting aside a sale fairly made. Poud v. Emily, Dayton, 284; Gilbert v. Armstrong, Dayton, 149. Lien holder not made a party to the proceeding, no rea- son for avoiding sale. Brickell v. Miles, 2 X. P. N. S. 154. A pur- chaser at sheriff's sale acquires no greater interest than the judgment debtor had at the time of levy and sale. Louth v. Rathbone, 19 O. 21. As to rights of a boiw fide pur- chaser at judicial sale, without knowledge or notice, see Fash v. Unbaugh, 22 C. ('. 409. A person executing a defective deed for the conveyance of land, which deed has not been recorded, has an interest in the land capable of being at- tached; and, if attached and sold as the property of a vendor, a pur- 57 REAL ESTATE UNDER JUDGMENTS. §§ 66, 67 The law in Ohio is settled that the legal maxim, caveat emptor, applies to sales of property by the sheriff. It is the duty of the purchaser to examine the public records before he undertakes to bid on the property and satisfy himself as to whether any lien exists. Not having done so, he cannot object to take the title after he has bid it in at judicial sale. The rule will not permit one to enter into competition for the purchase of property at judicial sale with those who may have been more careful than himself in their examination of the title to the property and then after it is sold, object to taking the title, because on account of his own want of care and prudence certain defects exist in the title, or liens or in- cumbrances exist on the property of which he is not aware. 32 Sec. 66. Effect of sales made under void and voidable judg- ments and decrees. If the judicial sale of real estate is made under a void judgment, the land is unaffected by the sale, and the party who had the title thereto prior to the proceedings under which the sale was attempted to be made can recover it back. The proceedings under which the sale was made can be im- peached collaterally. As has been shown heretofore, the pro- ceedings and the sale made thereunder are as though there had been no proceedings or sale. On the other hand, a sale of real estate under a voidable judgment or decree, is valid and binding until the judgment or decree under which it was made is set aside and reversed by an action or proceeding brought directly for that purpose. 33 Sec. 67. Purchasers at judicial sale protected by the record- ing statute. The statute provides and regulates what instruments con- cerning real estate must be filed and recorded. It also pro- vides that if any instrument shall not be so filed and re- corded within the time prescribed, the same shall be deemed fraudulent, so far as relates to any subsequent bona fide pur- chaser, having, at the time of making such purchase, no chaser, without notice of the 32 Brickell v. Miles, 2 X. P. N. S. equity, takes a good title as an in- 154. nocent purchaser without notice. 3 3 Boswell v. Sharp, 15 0. 464. Paine v. Mooreland, 15 0. 436. § 68 MERWINE ON REAL ACTIONS. 58 knowledge of the existence of such former deed or instru- ment. 34 It has been decided by the courts that purchasers at judi- cial sale, without notice of a prior unrecorded deed of the judgment debtor, is within the protection of the statute the same as purchasers at private sale. 35 Sec. 68. Judgments may be vacated during the term, when. A new trial is a re-examination, in the same court, of an issue of fact, after a verdict by a jury, a report of a referee or a master or a decision by the court ; and the former verdict, report, or decision, can be vacated, and a new trial granted, on the application of the party aggrieved, for any of the following causes affecting materially the substantial rights of such party: (a) Irregularity in the proceedings of the court, jury, referee, master, or prevailing party, or any order of the court, or referee, or abuse of discretion, by which the party was prevented from having a fair trial, (b) Misconduct of the jury or prevailing party. (c) Acci- dent or surprise, which ordinary prudence could not have guarded against. (d) Excessive damages appearing to have been given under the influence of passion or prejudice. (e) Error in the assessment of the amount of recovery, whether too large, or too small, when the action is upon a contract, or for the injury or detention of property. (f) That the verdict, report or decision is not sustained by sufficient evidence, or is contrary to law. (g) Newly dis- covered evidence material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial. (h) Error of. law occurring at the trial and excepted to by the party making the application. 36 An extended discussion of this subject in this and the fol- lowing paragraphs on the same subject cannot be given here; because so much of this law may not enter into the pro- cedure relating to the sale of real estate by judicial decree. ■^r.on'l Code, §8543 (R. S. S. 137; Scribner v. Lockwood, 9 0. §4134). 184. so Morris v. Daniels, 35 O. S. so Gen'l Code, §11575 (R. S. 40G; Sternberger v. Ragland, 57 O. §5305). 59 REAL ESTATE UNDER JUDGMENTS. § 69 Sec. 69. Judgments may be vacated after term, when. The common pleas court, or the circuit court, may vacate or modify its own judgments or orders after the term at which the same was made in the following cases: (a) By granting a new trial for the cause within the time and in the manner provided in the following section of the Revised Statutes : When the grounds for a new trial could not, by reasonable diligence, have been discovered before, but are dis- covered after, the term at which the verdict, report or de- cision was rendered or made, the application may be made by petition, filed as in other cases, not later than the second term after the discovery; whereupon a summons shall issue, and be returnable and served, or publication made, as pre- scribed in section fifty fifty (Gen'l Code, §11298); the facts stated in the petition shall be considered as denied without answer ; if the service be complete in vacation, the case shall be heard and summarily decided at the ensuing term, and if in term, it shall be heard and decided after the expiration of twenty days from such service ; and the case shall be placed on the trial docket, and the witnesses shall be examined in open court, or their depositions taken, as in other cases; but no such petition shall be filed more than one year after the final judgment was rendered. 37 (b) By a new trial granted in proceedings against defendants con- structively summoned, as provided in section fifty forty-eight of the Revised Statutes of Ohio (Gen'l Code, §11296) (c) For mistake, neglect or omission of the clerk, or irregularity in obtain- ing a judgment or order, (d) For fraud practiced by the success- ful party in obtaining judgment or order, (e) For erroneous proceedings against an infant, or person of unsound mind, when the condition of such defendant does not appear in the record, nor the error in the proceedings. (f) For the death of one of the parties before the judgment in the action, (g) For unavoidable casualty or misfortune preventing the party from prosecuting or defending. (h) For errors in a judgment, shown by an infant within twelve months after arriving at full age, as prescribed in section fifty-three hundred and thirty of the Revised Statutes of Ohio (Gen'l Code, § 11603). (i) For taking judgments upon warrants of attorney for more 37 Gen'l Code §11580 (R. S. §5309). § 69 MERWINE ON REAL ACTIONS. 60 than was due the plaintiff, when the defendant was not summoned, or othewise legally notified of the time and place of taking such judgment, (j) When such judgment or order was obtained, in whole or in a material part, by false testimony on the part of the successful party, or any witness in his behalf, which ordi- nary prudence could not have anticipated or guarded against, and the guilty party has been convicted. 38 In order to vacate or set aside a voidable judgment or decree, the statutory methods pointed out above must be fol- lowed. Until the voidable judgment or decree is vacated or the proceedings set aside under the one or the other of these methods, or by the court under its power over its own orders, judgments, or decrees entered during the term, the order, judg- ment, or decree of the court, or the sale of the real estate made thereunder, will be valid and binding. While these two sections of the statute 39 give the method for a direct attack upon a judgment, they are not the only methods. The old equity remedy of vacating a judgment still exists, and it has not been taken away by the Code. One court has said that as the ultimate legal and equitable rights of the parties concerning the subject matter of the litigation may now be finally deter- mined in the civil actions of the Code, which has taken the place of both the former actions at law and suit in equity, there is no reason why, in an action on a judgment, the defendant may not plead by way of defense, any matter which would have been available as a ground of relief in equity against the judgment. 40 A court possessing general jurisdiction in equity has the power to correct mistakes in the procedure in the probate court for the sale of real estate in any of the actions for such sale authorized by law. Not only can such court correct a mistake in the proceedings, but it can correct the deed into which the error may be carried. Such jurisdiction in equity ssGen'l (ode, §11031 (R. S. Bank, 11 Humph. 523; Bell v. §5354). Williams, 1 Head, 229; McNeil v. so Gen'l Code, §§ 11575 and 11631 Eddie, 24 Kan. L08; Pemroyer v. (R. S. §§5305 and 5354). Nell', 95 U. S. 714; Freeman v. An- 40 p,y the court in Kingshorough derson, 119 U. S. 185; Needham v. v. Towsley, 56 0. S. 462; Bank v. Thayer, 147 Mass. 536. Stevens, 1 0. S. 233; Ridgeway v. 61 REAL ESTATE UNDER JUDGMENTS. §70 to relieve against a mistake in the rendition of judgments has often been invoked by the courts of our country. 41 Parol evidence is admissible to show the mistake. 42 Sec. 70. Effect on purchaser's title at judicial sale when judgment or decree reversed and set aside. If a judgment, or decree, in satisfaction of which lands or tenements are sold, be thereafter reversed, such reversal will not defeat or affect the title of the purchaser; but in such case restitution will be made by the judgment creditor, of the money for which such lands or tenements were sold, with lawful interest from the day of sale. 43 This statute was passed to subserve a wise public policy, which required that title to real estate purchased at judicial sale should be protected as far as possible. If it were not for this provision of law, bidders would not come to judi- cial sales. Because of this statute bidders at such sales are encouraged, and property sells higher. 44 This protection of the statute extends to a defendant lien holder who purchased at a sheriff's sale, under a judgment which was reversed. A purchaser at an administrator or executor's sale of real estate will be entitled to the protection afforded by the stat- 4i Stiles v. Widener. 35 O. S. 555; Gill v. Pelkey, 54 O. S. 348; Chase v. Manhardt, 1 Bland Ch. (Md.) 350; Ford v. Ford, Walker (Miss.), 505; Drew v. Clark, Cook (Tenn. ), 373; Brewer v. Jones, 44 Ga. 71; The County, etc., v. Ky., 40 la. 057; Wilson v. Boughton, 50 Mo. 1 ; Barthell v. Roderick. 34 la. 518; Boon v. Miller, 16 Mo. 457; Partridge v. Harrow, 27 la. 96 ; Hedge v. Sims, 29 Ind. 574; Griffin v. Bixby. 12 N. H. 454; Lanman v. Crooker, 97 Ind. 1(34. But a guardian's deed of land sold under a proceeding in the Probate Court cannot be reformed because the guardian supposed the proceeding to embrace more land than was de- scribed, and the buyer believed he was buying all. Dickey v. Beaty, 14 O. S. 389. 42 Gill v. Pelkey, 54 O. S. 348. «Gen'l Code, § 11702 (R. S. § 5409 ) . 44 Irwin v. Jeffers, 3 O. S. 391; McBride v. Murphy, 14 O. S. 349. "Where, in a foreclosure suit, the summons on the mortgagor and his wife were returned as personally served, and judgment by default was regularly taken, the purchaser at the sale will be protected in his title, though after the mortgagor's death his widow seeks to vacate the sale on the ground that the mortgage as to her was a forgery, and that she was not served in the foreclosure suit. The purchaser had a right to rely on the record, and the widow must seek her rights in the purchase money paid by the purchaser to the judgment cred- itor." Miller v. Erd house, 2 W. L. B. 84. §71 MERWINE ON REAL ACTIONS. 62 ute, even if at the time of the sale he has been made aware that the judgment or order, under which the sale was made, will be set aside. 45 The protection 'of this statute comes only to a stranger to the action, when the judgment is reversed, and does not ap- ply to strangers who are purchasers at judicial sales where the order of sale or confirmation is reversed. 40 Sec. 71. Remedy of purchase at sale on execution, if the sale is invalid. If, upon the sale of property on execution, the title of the purchaser is invalid by reason of a defect in the proceed- ings, the purchaser may be subrogated to the right of the creditor against the debtor, to the extent of the money paid and applied to the debtor's benefit, and, to the same extent, such purchaser will have a lien on the property sold, as against all persons, except bona fide purchasers, without no- tice ; but nothing in the provisions of this paragraph can be construed to require the creditor to refund the purchase money, by reason of the invalidity of any such sales, 47 and the provisions of this paragraph will apply, also, to all sales by order of the court, sales by executors, administrators, guardians, and assignees, and to all sales for taxes. 47 * Purchasers at judicial sales, without notice of a prior un- recorded deed from the judgment debtor, are within the pro- 40 Irwin v. Jeffers, 3 0. S. 389. "McMahon v. Davis, 19 C. C. 245; McBain v. McBain, 15 0. S. 349; Insurance Co. v. Sampson, 3S 0. S. 672; Roberts v. Price, 4 W. L. M. 581. Title protected if judg- ment is reversed after sale and be- fore confirmation. McQuire v. Ely, \Y. 520. Buyer at partition sale not a trespasser in case of reversal. Dabney v. Manning, 3 0. 321. In this connection see, also, Hubbell v. Broadwell, 8 0. 120; Walpole v. Ink, 9 0. 142; Taylor v. Boyd, 3 0. 337. « Gen'l Code, § 11703 (R. S. §5410). *7*Gen'I Code, §11704 (R. S. §5411). "Where mortgaged prop- erty lias been sold under a d( eree in foreclosure, and the sale con- firmed and the money applied in the extinguishment of the mortgage debt, and subsequently the judg- ment, order of sale and confirma- tion are set aside, the purchaser, although a stranger to the pro- ceedings, does not hold the prop- erty as under section 5409, (Gen'l Code, §11702), but is entitled to be subrogated to the rights of the owner of the mortgage, and will held the same by as- signment under Gen'l Code, §§ 117(13 and 11704 ( R. S. §§5410 and 5411)." McMahon v. Davis, 19 C. C. 242. .See, also, En- del v. Leibroke, 33 0. S. 270; Wehrle v. Wehrle, 39 0. S. 368; Doyle v. Brenneman, 2 N. P. 415. '"Where the lands incumbered by various liens are sold in judicial 63 REAL ESTATE UNDER JUDGMENTS. §§72, 7b tection of the statute (Gen'l Code, §8543 [R. S. §4134]) equally with purchasers ui private sale. 48 Sec. 72. Not necessary to reserve rights of infants in a judg- ment to be entered against them. It will not be necessary to reserve in a judgment or order the right of a minor to show cause against it after attaining the age of majority; but in any case in which, but for this section, such reservation would have been proper, the minor may, within one year after arriving at the age of majority, show cause against such order or judgment. 40 Sec. 73. Bona fide purchaser not affected by the preceding section. The title to any property which is the subject of the judg- ment or order sought to be opened, and which, by, or in consequence of, the judgment or order, has passed to a pur- chaser in good faith, will not be affected by any proceedings under sections fifty-three hundred and fifty-four and fifty-three hundred and fifty-five (Gen'l Code, §§11631 and 11632), nor shall the title to any property sold before judgment under an attachment be affected by said section. 50 proceedings at the suit of one of the lienholders, and upon cross- petitions of the different defendant lienholders, and are purchased at such judicial sale by a defendant lienholder, and the proceeds of sale are distributed among the several incumbrancers by order of the court, agreeably to their ascer- tained priorities, such purchaser, though a party to the suit, is en- titled to the protection which the policy of the statute (Gen'l Code, §11703 [R. S. §54-10]) affords to purchasers at judicial sales, upon the reversal of the judgment or de- cree under which the sale was made." McBride v. 0. 8. 349. But Adm'r. 8 0. 120. 48 Sternberger v. S. 148: Scribner, wood, 9 O. 184; Morris v. Daniels, 35 O. S. 400; Bassett v. Xote- Longworth, 14 see Hubbell v. Ragland, 57 O. etc., v. Lock- worthy, 2 Leading Cases in Equity, 110; Foorman v. Wallace, 75 Cal. 552; Evans v. McGlassen, 18 la. 150; Butterfield v. Walsh, 21 Id. 97; Rorer on Judicial Sale, §§866, 874. 49 R. S. § 532'^ ; ( Gen'l Code, §11603); Long v. Mulford, 17 O. S. 4S4; Carey v. Kemper, 45 O. S. 96. so Gen'l Code, §11633 (R. S. §5356). The title of a purchaser at judi- cial sale, as a general rule, cannot be impeached in equity for errors or irregularities in the proceed- ings; but where a tract of land not in fact sold, and for which no con- sideration was paid or intended to be paid, is, by mistake, included in the report of sales, such mistake may be corrected, in equity, as against the purchaser or his heirs, even after confirmation and deed in §§ 74, 75 MERWINE ON REAL ACTIONS. 64 Sec, 74. Manner in which a dormant judgment may be re- vived. When a judgment, including judgments rendered by a jus- tice of the peace, or mayor, a transcript of which has been filed in the court of common pleas 'for execution, has become dormant, or when any finding for money in any equitable proceedings, which in whole or in part remains unpaid, un- der the order of the court made therein, said judgment may be revived, or said finding may be made subject to execution, as judgments at law are, in the same manner as prescribed for reviving actions before judgments, or by action in the court in which said judgment was rendered, or finding made, or in which transcript of judgment may have been filed. When either party to such dormant judgment or finding, his agent or attorney, makes affidavit showing that the adverse party is a non-resident of the State, and that such judgment or finding remains unsatisfied in whole or in part, and the amount owing thereon, service may be made by publication, as in other cases, but only for such judgments or findings in which personal service has originally been made on the adverse party. If sufficient cause be not shown to the con- trary, the judgment will stand revived, and the finding be subject to execution for the amount which the court finds to be due and unsatisfied thereon ; and the lien of the judg- ment for the amount due will be revived, and will operate from the time of the entry of the conditional order or the filing of the petition. 51 Sec. 75. The limitation as to revivor of judgment. An action to revive a judgment can only be brought within twenty-one years from the time it became dormant, unless the party entitled to bring such action was, at the time the judgment became dormant, within the age of minority, of un- sound mind, or imprisoned, in which case the action may be brought within fifteen years after such disability has boen removed. 52 pursuance thereof. Lites v. Wide- saGen'l Code, §11648 ( R. S. ner, 35 S. 555. §5368). si Gen'/ Code, §11645 (R. S. §6367). 65 REAL ESTATE UNDER JUDGMENTS. §§76,77 Sec. 76. New parties to judgment and revivor of judgment when a party dies — Judgment in circuit court remanded to common pleas for execution — How revived after death. If either or both of the parties die after judgment ren- dered, and before satisfaction thereof, their representatives, real or personal, or both, as the case may require, may be made parties to the judgment, and the same may be revived by an action brought for that purpose ; or they may be made parties thereto in the same manner as is prescribed for the revival of actions before judgment; and such judgment may be rendered and exectuion awarded as might or should have been given or awarded against the representatives, real or personal, or both, of such deceased party; and where any judgment or decree has been rendered in the circuit court of any county, and a mandate has been directed to the com- mon pleas court, to carry the same into execution, and if either or both parties thereto die before satisfaction thereof, the same may be revived in such common pleas court in conformity with this section. 53 And the members of a partnership, against which a judg- ment has been rendered by its firm name, may be made par- ties to the judgment by action, and sureties to the bond of an executor, administrator, guardian, or trustee, may be made parties to a judgment thereon against the principal, by action. 54 Sec. 77. Judgments against parties, and against defendants at different times. Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants ; and by the judgment a court may determine the ultimate rights of the parties on either side, as between them- selves, and grant to the defendant any affirmative relief to which he is entitled ; and in an action against several de- fendants, the court may render judgment against one or more ssGen'I Code, § 1 1649 (R. S. For a more extended discussion of § 5369 ) . this subject, see 1 Bates' Pleading, s^Gen'l Code, §§11751 and Practice Forms, etc., 632 to 640. 11752 (R. S. §§5370 and 5371). §§78-80 MERWINE ON REAL ACTIONS. 66 of them, leaving the action to proceed against the others, whenever a several judgment is proper. 55 Sec. 78. A judgment will operate as a conveyance, when. When a party against whom a judgment for conveyance, release, or acquittance is rendered, does not comply there- with by the time appointed, such judgment will have the same operation and effect, and be as available, as if the con- veyance, release, or acquittance had been executed conform- ably to such judgment. 56 The land must be within the jurisdiction of the court in order that the decree may operate as a conveyance. If the land is outside of the jurisdiction of the court, the decree can only be enforced by attachment. 57 Sec. 79. How judgment entered against a married woman. When a married woman sues or is sued, like proceedings may be had and judgment rendered and enforced as if she were unmarried, and her property and estate will be liable for the judgment against her, but she will be entitled to the benefits of all exemptions to heads of families. 58 Sec. 80. All judgments must be entered by clerk in con- formity to verdict. It is provided that when a trial by jury has been had, judgment must be entered by the clerk in conformity to the verdict, unless the verdict be special, or the court order the cause to be reserved for future argument or consideration, immediately after the time allowed by law for the filing of ssGen'l Code, §§ 11583 and 11384 (R. S. §§5311 and 5312). See Smith v. Bank, 26 0. S. 141 Lampkin v. Chisom, 10 0. S. 451 Smithers v. Rainey, 14 O. S. 287 Roby v. Ramsberger, 27 0. S. 674 Humphries v. Huffman. 33 0. S 395; Mead v. McGrow, 19 0. S. 55 Krug v. Bishop, 44 0. S. 221 Mason v. Alexander, 44 0. S. 334 Aueker v. Adams, 23 O. S. 543 Hempy v. Ransom, 33 O. S. 312 Carr v. Beckett, 1 C. C. 72; Osbun v. Bartram, 15 C. C. 224. soGen'l Code, §11590 (R. S. § 5318). See Shepherd v. Ross Co., 7 O. 271 (Pt. 1) ; Randall v. Pryor, 4 O. 425; Irwin v. Jeffors, 3 0. S. 389; Taylor v. Boyd, 3 0. 337, Burnley v. Stevenson, 24 0. S. 474; Penn v. Hayward, 14 O. S. 302; Jelke v. Goldsmith, 52 0. S. 499. "Daniels v. Stevens, 19 O. 222. seGenl Code, §11591 (R. &. §5319). 67 REAL ESTATE UNDER JUDGMENTS. §§81-83 a motion for a new trial if such motion has not been filed; if a motion for a new trial has been tiled, then such judg- ment must be entered only when the court has sustained such verdict by the overruling of such motion for a new trial, and the judgment upon such overruling of such motion will then be immediately entered. 59 Sec. 81. When the court to order what judgment to be en- tered on verdict. When the verdict is special, or when there is a special finding on a particular question of fact, or when the case is reserved, it is the duty of the court to order what judgments shall be entered. 00 Sec. 82. When judgment may be entered against the verdict. When, upon the statements in the pleadings, one party is entitled by law to judgment in his favor, the court is re- quired to so render judgment, although a verdict has been found against such party. 01 Sec. 83. All judgments must be entered on journal. All judgments and orders must be entered on the journal of the court, and specify clearly the relief granted or order made in the action. 02 In order to create a lien on the real estate of the judgment debtor, the judgment must be entered on the journal during the term at which the judgment was taken. 03 The court at all times during the term, and at any time during a subsequent term, has the power to make its journal speak the truth. If by mistake or fraud a judgment is en- 59 Gen'l Code, §11599 (R. S. new trial." Young v. Shellen- §5326). "When a general verdict barger, 530 O. S. 291. is returned by a jury, the clerk is «° Gen'l Code, § 11600 (R. S. authorized by this statute (§5326) §5327). to enter judgment upon it, unless 61 Gen'l Code, §11601 (R. S. the court order the case to be re- § 5328 ) . served for future argument or con- 62 Gen'l Code, § 11604 ( R. S. sideration; and such judgment is §5331). regular and valid, though entered 63 Coe v. Erb, 59 O. S. 259; before the expiration of the statu- Wiley v. Lewis, 4 X. P. 212. tory time for filing a motion for a §§ 84-87 MERWINE ON REAL ACTIONS. 68 tered, when in fact no judgment was granted or allowed, the court has full power to correct the record so that it may show the reM action of the court as to the same. The court may do this on its own motion or on the application of the party in interest. 04 Sec. 84. Complete record of case to be made, unless waived. The law requires the clerk to make a complete record of every case as soon as it is finally determined, unless such record or some part thereof, be duly waived. 65 Sec. 85. When record is to be made and signed. The clerk is required to make up such record in each cause in the vacation next after the term at which the same was determined; and it is made the duty of the presiding judge of the court, at the next term thereafter, to subscribe the same. 66 Sec. 86. Of what the complete record shall consist. The record will be made up from the petition, the process, the return pleadings subsequent thereto, reports, verdicts, orders, judgments, and all material acts and proceedings of the court; but if items of an account, or copies of papers attached to the pleadings, are voluminous, the court may or- der the record to be made by abbreviating the same or in- serting a pertinent description thereof, or by omitting them entirely. The bill of exceptions must be filed with the plead- ings and papers, but not recorded, unless the court for good reason so orders ; and evidence must not be recorded. 67 Sec. 87. Court to cause record to be completed in certain cases. When the judicial acts or court proceedings in any court have not been regularly brought up and recorded by the clerk thereof, it is made the duty of the court to cause the same to be made up and recorded within such time as it may direct; and 64Krusella v. DeCamp, 15 C. C. «« Gen'l Code, §11606 (R. S. 494. §5333). es Gen'l Code, §11605 (R. S. <" Gen'l Code, §11607 n V. Rouk, 57 O. S. 422. 72 See No. 1 to K? inclusive f > V forms and procedure. In replevin the writ was retvrno hahendo; in detinue a distringas or a scire fa- cias; where the debtor might be imprisoned the writ was called a capias ad satisfaciendum ; where the goods and chattels, and also the rents and profits of the lands were sought, it was called a levari facias; and where the goods and chattels and a part of the land were seized under a writ, it was called a writ of elegit. Where the possession of lands were to be re- covered the writ was habere facias aeisei iin iii. See Freeman on Exe- cutions, §3 c/ seq. 71 REAL ESTATE UNDER JUDGMENTS. § 92 withholding the possession, and cost or costs alone, out of the property of the person who so withholds the possession. 73 In an attachment proceeding when a judgment is rendered therein, it must be satisfied out of the property seized, and if there is not property sufficient for that purpose, execu- tion may issue as in other cases. In speaking of the sale of property under such proceeding, it was said that the order to sell attached property, after judgment, is therefore an execution of the first kind named, and differs from a fi. fa. execution only in this, that it is a command to sell the prop- erty in the officer's hands under the attachment, while an execution in the usual form command a levy and sale of the same, or any other property, to satisfv the same judgment. The latter form of execution is broader, and embraces the terms and office of the former. The greater includes the less. Under the order of sale the same advertisement, sale and return is made as under the execution. 74 Sec. 92. What property subject to levy and sale. Lands and tenements, including vested interests therein, and permanent leasehold estates, renewable forever, and goods and chattels, not exempt by law, are made subject to the payment of debts, and are liable to be taken on execu- tion and sold as hereinafter provided. 75 Lands and tenements held in trust cannot be reached by execution against a trustee ; for trust estates are never liable to judgments against the trustee. 70 The real property of a judgment debtor, exempt to him from levy and sale in lieu of a homestead under the statute, 77 when selected and held by the judgment debtor as so exempt becomes his absolute propertv. r npd if ho sells it. the prop- erty is not subject to any judgment lien obtained against the grantor prior to such conveyance and it is not subject to ■"Oen'l Code, §§11653 a~d S 53741 : see also §5555. (Gen'l 11654 (R. S. §§5372 and 5373). Code S 1 1855) , and Xo. 56 for form The right to ; ssue an execution of jndgment and execution in at- does not exclude a report to the tnchr"ent. action of debt. Headlev v. Bobey. ™ Wright v. Franklin. 50 O. S. 6 0.522. oo. Manley v. Hunt. 1 0. 257; "* By Johnson, J., in Liebman v. Br+ler t. Brown, 5 0. S. 215. Ashbacker, 36 O. S. 94. "Gen'l Code, §11738 (R. S. 75Gen'l Code, §11655 (R. S. S5441). §92 MERWINE ON REAL ACTIONS. 72 seizure and sale upon execution in satisfaction of such judg- ment. 78 As to whether it is safe for the officer to make the levy, ownership is the true test. Coin can be taken from the judg- ment debtor if it can be found by the officer holding the writ of execution. 79 Equitable interests cannot be reached by levy under the ordinary execution. The proper method of procedure in such cases is by a proceeding in equity. 80 While an execution may issue against property incumbered with prior liens and the property sold thereunder, subject to such liens, yet the better plan is to file a petition on the chan- cery side of the common pleas court, alleging the judgment and the various liens, and making every lien holder a party defendant and asking that they each be required to come into the case and set forth the nature and amount of their several liens and praying that the real estate of the judgment debtor be sold, free of the liens, and the proceeds of such sale be applied to the payment of the various liens in the order of their priority. The court in such instances orders the real estate sold free of the claims and liens of the parties to the action. The liens and claims of the parties are then transferred to the fund arising from the sale of such real estate. 81 As it will not be possible to discuss the subject further here, there will be found in the note below, cases under the various subjects connected with the execution. 82 78 Genell v. Herons, 70 O. S. 309 ; but see Roig v. Schultz, 42 0. S. 165; McComb v. Thompson, 42 O. S. 139. ™ Reese v. Bader, 31 W. L. B. 112. so Carty v. Fenstermacher, 14 O. S. 459; Baird v. Kentloud, 8 O. 24; Scott v. Douglass, 7 0. (Pt. 1) 228; Myers v. Hewett, 16 0. 449; Loring v. Melendy, 11 0. 356; Gibson v. Chillicothe, 11 O. 321. 8i See Nos. 23 to 47 inclusive for form of the procedure in such cases. H - As to levy of property mort- gaged, see Commercial Bank v. Western, etc., 11 O. 444; Baird v. Kirtloud, 8 O. 21 ; Martin v. Alter, 42 O. S. 94; Phelps v. Butler, 2 O. 224; Moore v. Rettenhouse, 15 0. S. 310; Seymour v. King, 11 0. 342. Remedy is in equity. See Lane v. Baughman, 17 O. S. 642; Coe v. Piqua, etc., 10 0. S. 403; Bank v. Tennessee, 62 0. S. 564; Coe v. Peacock, 14 0. S. 190; Coe v. Knox, etc., 10 0. S. 412. As to levy on property under bailment, see Gibson v. Chillicothe, etc., 11 O. S. 311. As to levy before deed, see Gorrell v. Kelsy, 40 0. S. 117; Haynes v. Baker, 5 0. S. 253. As to levy on chattels sold condition- ally, see Sage v. Sleutze, 23 0. S. 73 REAL ESTATE UNDER JUDGMENTS. $93 Sec. 93. Partnership property levied on, how. Where a levy was made on the partnership property by a judgment creditor and a petition was filed in the court ask- ing that the partnership property be sold, or so much as might be necessary to satisfy the execution lien, it was said : "It is clear, we think, upon principle and upon authority, that the levying creditor, in the case at bar, having acquired a lien by the seizure, in execution, of his debtors interest in the tangible property of the firm, might properly file his peti- tion against the other partner for an account of the partner- ship, and the ascertainment of his debtor's interest in the property seized, before sale upon execution." The rule, in Ohio at least, seems therefore to be that upon such levy being made, it is the right of a creditor and of the other co-partners, should either desire it, to invoke the equity powers of the court to adjust the partnership business, and to stay the proceedings under the execution, till the beneficial interest of the debtor partner in the goods seized has been ascertained. But that if the creditor does not so elect, and no such steps are taken by the other partners, the officer executing the writ must sell the apparent interest of the debtor in the property levied on, and upon such sale, redeliver the same to the other partners and the purchaser, who will then be owners in common, subject to a lien in favor of the other partners and the joint creditors, upon the interest of the debtor partner in the hands of the purchaser for any balance due upon final adjustment of the partnership account. 83 1; Albright v. Meredith, 58 0. S. 194. As to levy on homestead set off as exempt, see Roig v. Schultz, 42 O. S. 165; McComb v. Thomp- son, 42 0. S. 139; Genell v. Hirons, 70 O. S. 309. As to levy on prop- erty fraudulently conveyed, see Mc- Vey v. Ritenour, 40 O. S. 107; Westerman v. Westerman, 25 0. S. 500; Same v. Same, 9 Am. L. R. 690. As to levy on vendor's inter- est, see farker v. Miller, 9 0. 108. iScribner v. Lockwood, 9 0. 184; Paine v. Mooreland, 15 O. 435; Miners v. Morse, 15 O. 568; Cog- shall v. Marine, etc., 63 0. S. 98; In re Worstall, 6 X. P. 526. As to the property under attachment, see State v. Anderson, 17 W. L. B. 391. As to property previously aliened, see Sclmler v. Miller, 45 0. S. 325. As to officer's discre- tion as to amount of property to levy on, see Pugh v. Calloway. 10 0. : S. 494. £3 Nixon, etc. v. Nash, etc., 12 O. S. 652. A bill can bo filed by a partner against the separate cred- itor of a co-partner to restrain a sale upon execution until an ac- count can be taken of the partner- ship and the beneficial interest of §94 MERWINE ON REAL ACTIONS. 74 Firm creditors have priority over the creditors of the individ- ual members of the firm in the partnership assets. 84 An execution issued on a judgment against a partnership firm by its firm name, operates only on the partnership property. 83 Sec. 94. When liens of a judgment attach to lands. Such lands and tenements, within the county where the judg- ment is entered, are bound for the satisfaction thereof from the first day of the term of court at which judgment is rendered ; but judgments by confession and judgments rendered, at the same term of which action is commenced, bind such lands only from the day on which such judgments are rendered ; and all other lands are bound from the time they are seized in execution. 80 the debtor partner ascertained. Place v. Sweitzer, 16 O. 142. A creditor has an equal right also to appeal to a court of chancery to have his rights determined. Sut- cliffe v. Dorman, 18 0. 181. si Grosvenor v. Austin, 6 0. 103; Smead v. Lacey, 1 Disney, 139; Sigler v. Knox, etc., 8 0. S. 511. ssGen'l Code, § 110(34 (R. S. §5381i. seGen'l Code, §11056 ( R. S. §5375). Judgment liens are of very ancient origin. Dyer, 373; Carthen, 129; 1 Lord Raymond, 53; Chitty on Descents, 330; Lau- rence v. Belger, 31 0. S. 175. At common law judgments related to the first day of the term, although signed after, and where, by the Statute of Westminster. 2, lands might be taken, the plaintiff was entitled to execution of whatever the defendant was seized of the first day cf the term. Mack v. Schlothman, 7 Am. L. Rec. 662. Before the adoption of the Code, judgments and decrees were liens by statutory enactment. Conrad v. Everick, 50 0. S. 475. The lien, validity and priority of judgments are creatures of the statute. Cor- win v. Benham, 2 O. S. 36; Tucker V. Shade, 25 0. S. 355. And equity cannot cure any defects in the lien. Beggs v. Vandever, W. 325. If the judgment was ever in force and is lost, equity cannot restore it. Bank v. Turpin, 3 0. 514. The judg- ment lien is good as against a sub- sequent purchaser. Mack v. Schlothman, 7 Am. L. Rec. 665. The lien does not give any prop- erty right in the land — only the power to levy on it. Xeff v. Cox, 5 X. P. 413. Xo execution can is- sue unless judgment is a valid one. Ibid. And, in order for a judgment to be a lien on a debtor's lands, it is necessary that it should be capa- ble of collection by execution against the property of the debtor. Ibid. Decrees to create a lien must be for payment of money only. Myers v. Hewett, 16 0. 449. Many decrees create no lien, such as in- junctions to cancel and set aside fraudulent conveyances. Ibid. A decree in foreclosure may allow an execution to be issued under it, and yet create no lien. Myers v. Hew- itt. 10 0. 449. A divorce for the wife on account of the aggression of the husband carries with it an alimony judgment out of the hus- band's real and personal property. Coffman v. Fumey, 05 O. S. 01. For nature and effect of judgment against sellers of intoxicating liq- uors and gamblers, see R. S. 75 REAL ESTATE UNDER JUDGMENTS. §94 Judgments rendered against a railway corporation under a foreclosure of a mortgage in the Federal courts become a lien on the lands of the railway for roadway, right of way, depot, etc., 87 and this lien attaches either from the first day of the term at which judgment was rendered, or from the day of its rendi- tion. And the judgment will attach from the first day of the term, though there is no session of the court. 88 To be precise, the lien attaches on the hour fixed for the com- mencement of the term. In no case can the judgment antedate the term. 89 All judgment liens are coextensive with the jurisdiction of the court rendering the same. 90 And the lien on a judgment rendered by the Superior Court extends to all of the lands in Hamilton County. 91 In order to create a lien on the real estate of the judgment debtor, the judgment must not only be announced by the court during the term, but the entry therefor must also be entered upon the journal during the term. 92 The lien provided by the statute is but an incident of the judgment. Under the common law it was made to relate back to the first day of the term, and this relating back to the first day of the term for the lien was in no sense the antedating of the judgment. 93 It is to be observed that the statute provides that the lands of the judgment debtor outside of the county are bound by the judg- §§4275, 4273; (Gen'l Code. §§5971 and 59f>9 ) ; Trout v. Marvin, G2 0. S. 132; Bellinger v. Griffith, 23 O. S. 619; Bender v. Finkbone, 25 O. S. 103; Hark v. Corlett, 1 Cleve. L. Rep. 92. A judgment in the Circuit Court of the United States carries with it same lien as a judgment in the State court. Lawrence v. Belger. 31 0. S. 175; Sellers v. Corwin, 5 0. 408. »~ Stewart v. Railway, 53 0. S. 151. ss Davis v. Messenger, 17 O. S. 231. 89 Loomis v. Building, etc., 37 0. S. 394; Follet v. Hall, 10 O. 111. It cannot be presumed that judg- ments were intended to attach as liens before the term commenced. Ibid. As to effect of a nunc pro tunc order, see Mathers v. ( incin- nati, 3 C. C. 2S4. A judgment lien comes into being on the date of the rendition of the judgment. Apple- by v. Mullaney, 7 X. P. 120; Davis v. Messenger, 17 0. S. 231. oo Roads v. Symmes, 1 0. 281. oi Goodman v. McCall, 2 C. S. C. R. 159. 02 Coe v. Erb, 59 0. S. 259. The requirement that all judgments must be entered on the journal carries the implication that until that is done, the judgment is in- choate only. Ibid. 93«homds v. Allison, 5 X. P. 54. § 95 MERWINE ON REAL ACTIONS. 76 ment lien only from the time they are seized under an execution. Provision is made for the keeping, by each of the sheriffs in each of the counties of the State, of what is known as a foreign execution docket. In this docket the sheriff is required, on the receipt by him of any execution, order of sale or other process issuing from any court of any county of the State, other than that in which he resides, to make an entry of the sale of such writ, when received by him, from what court and county issued, the date and amount of such judgment or decree, and such entry so made shall be notice to subsequent purchasers of the matters herein contained. 94 By force of the sheriff's entry of his proceedings on his docket, as required by this statute, it is notice to the world of the lien, and the sheriff need not go on the land to make the levy. 95 A levy made by the sheriff under such foreign execution be- comes a lien upon the date of the levy and the entry in such docket and the lien will continue for a period of five years there- after, and retain its priority, even though such sheriff return the execution without further proceedings by order of the judgment creditor, etc. 96 It is a settled law in Ohio that a judgment lien does not attach to after acquired lands in the absence of a levy thereon. 97 Such lien dates from the levy and not from the revivor of the judgment. Ibid. Sec. 95. Lien of judgment of Supreme Court — Lien of judg- ment of the common pleas court in cases removed to Supreme Court. A judgment of the Supreme Court, for money, binds the lands and tenements of the debtor, within the county in which the suit originated, from the first day of the term at which the judgment is entered, and all other lands of the debtor, from the time they are seized in execution ; but the lien of a judgment of the com- mon pleas court, in an action which is appealed by the judgment debtor to the circuit court, and is thence removed into the o'Gen'l Code, § 2837 (R. S. his own office and not even go with- S. § 1212). in view of the land." Gwynn on 95 Morgan v. Kinney, 38 O. S. 613. Sheriffs, 308. "No entry by an officer on real so Smith field v. Wheeling, etc., 11 • state is necessary to constitute a C. C. 412; see also 55 O. S. 233. levy. The officer may remain in o? Smith v. Hogg, 52 O. S. 530. 77 REAL ESTATE UNDER .JUDGMENTS. §§96,97 Supreme Court is not thereby divested or vacated, but continues till the final determination of the action in the Supreme Court. 98 Sec. 96. Lien of transcripts of justices and mayors by filing of transcripts with the clerk of the court of common pleas. The party in whose favor a judgment is rendered by a justice of the peace or mayor of a municipal corporation, may, at any time after judgment is rendered, if the same be not appealed or stayed, file in the office of the clerk of common pleas court of the county in which the judgment was rendered, a transcript thereof, having certified therein the amount, if any, paid thereon ; and thereupon it is made the duty of the clerk to enter the case upon the execution docket, together with the amount of the judgment, and the time of filing the transcript ; but if, within ten days after rendition of the judgment, the judgment debtor pay the same, or give bail for stay of execution, the justice or mayor is required forthwith to certify that fact to the clerk of the court of common pleas, whose duty it is to enter a mem- orandum thereof upon the execution docket, and the cost of the transcript, the filing thereof, and of the entry on the docket must be paid by the party who files the transcript, and taxed as increased costs, unless the judgment debtor pay the same, give bail for stay of execution, or appeals from the judgment ren- dered, within ten days after the rendition of the judgment." Sec. 97. The lien of such judgment. Such judgment, if the transcript be filed in term time, will be a lien on the real estate of the judgment debtor within the ss Gen'l Code, §11657 (R. S. §5376). For decision under §421 (Gen'l Code, §1512), of the code, see Kilbrith v. Diss, 24 O. S. 379; Tucker v. Shade, 25 O. S. 358; under the act of 1816, see Riddle v. Bryan, 5 O. 51 ; undet the act of 1820 and 1822, McCor- mick v. Alexander, 2 0. 66; undei the act of 1824, Towner v. Wells, 8 O. 136; under the act of 1831, Northern, etc., v. Roosa, 13 0. 335; affirmance of original judgment does not relate; Fulton v. Hooker, 7 W. L. B. 48. "A mortgage does not obtain priority over an ante- cedent judgment by virtue of a subsequent void judgment of rever- sal by the intermediate court, which reversal is afterwards reversed and the original judgment affirmed by the supreme court." Maxwell v. Holmes, 1 N. P. N. S. 13. as Gen'l Code, §11659 (R. S. § 5377 ) ; McComb v. Thompson, 42 O. S. 139. A transcript filed in the common pleas court from a judg- ment taken before a justice of the peace has equal priority with a judgment of the common pleas, taken and entered during the term. Raugh, etc., v. Ackswitch, 36 W. L. B. 302, affirmed in 59 C. S. 483. §§98,99 MERWINE ON REAL ACTIONS. 78 county from the day such transcript is filed ; and if filed in vaca- tion, the judgment, as against the debtor, will be a lien from the day it is filed, but as against other transcripts filed in vaca- tion, and judgments rendered at the next term of the court, it will be a lien only from the first day of the next term. 1 This provision of the statute is meant to give a lien on such real estate of the judgment debtor as is subject to levy and seizure on execution. 2 In an action to adjust liens, it was held that the lien on tran- script from a justice during vacation should precede a mortgage filed for record during the next term, and this mortgage should precede a judgment against the debtor at the next term of the court. 3 Sec. 98. Executions upon transcripts of judgments of justices filed by the clerk of the courts of common pleas, and sales thereunder. Execution may be issued on such judgment at any time after the filing of the transcript, as if the judgment had been rendered in court ; but the lien will remain as provided in the preceding section. 4 "With respect to the issuance of an execution on the judgments of such transcripts, and the return thereof, they are placed upon the same footing with those issued upon judgments taken in the common pleas court. 5 Sec. 99. When a judgment execution becomes dormant and ceases to be a lien. If execution on a judgment rendered in any court of record in this State, or a transcript of which has been filed as provided in the statute, section 5372 (Gen'l Code, § 11653), for filing of transcripts of justices and mayors with the clerk of the court of common pleas, be not sued out within five years from the date of the judgment, or if five years intervene between the date of the last execution issued on such judgment and the time of suing out another execution thereon, such judgment then becomes dormant i Gen'l Code, §11661 (R. S. « Gen'l Code, §11662 (R. !S. §5378). §5379). 2 Genell v. Hirons, 70 0. S. 300. s R au h v. Aknovitch, 59 O. S. sBabbett, etc. v. Morgan, 31 0. 485. S. 273. 79 REAL ESTATE UNDER JUDGMENTS. §100 and ceases to operate as a Hen upon the estate of the judgment debtor. It was held that the lien of a judgment, given by section five thousand three hundred and seventy-five, and such as are created by the levy of an execution, ar^ of no avail as against a pur- chaser, after the judgment becomes dormant before it is revived. 7 A decree and an order of sale of real estate never becomes dormant. While the parties to the decree live, the case, for the purpose of the decree, is a lis pendens, though under the code practice, the clerk is directed to leave it off the trial docket, 8 It is only money judgments that become dormant. 9 This work forbids further discussion of the subject of dor- mant judgments and a revivor thereof. The practitioner will find a careful discussion thereof in the works on pleading and court procedure. 30 Sec. 100. The writ of execution — Its command, and how sales made thereunder — Execution operates against a partner- ship, how. The writ of execution against the property of a judgment debtor issuing from any court of record, must command the officer to whom it is directed, that of the goods and chattels of the debtor he cause to be made the money specified in the writ, and for want of goods and chattels, he shall cause the lands and tenements of said debtor to be sold for cash. But if the court rendering the judgment or decree so order, real estate may be sold under writ of execution, on the following terms: One-third cash on the day of sale, one-third in one year, one-third in two years thereafter, with interest on de- eGen'l Code. § 11663 (R. S. §5380). "Where a dormant judg- ment is revived under §6358 (Gen'l Code, §11648), it does not bv vir- tue of its revivor, become a lien on lands acquired by the debtor after its original recovery, unless a l°vv is made thereon either before it be- came dormant or after its revision." Smith v. Ho415). is Ambrose v. Ryrne, 61 O. S. 146. 74 Gen'l (ode. § 11710 (R. s. 99 REAL ESTATE UNDER JUDGMENTS. §§133,131 An order of sale issued in the proceedings for the foreclosure of a mortgage is not an execution within the meaning of the terms of the foregoing statute. 70 Sec. 133. New appraisement and terms of sale of mortgaged premises. When premises are ordered to be sold, and having been twice advertised and offered for sale, remain unsold for want of bid- ders, the court from which the order of sale issued, must, on motion of the plaintiff or defendant, order new appraisement, and may also order that the land he sold on time, as fellows : One- third cash in band, one-third in nine months from the day of sale, and the remaining third in eighteen months from the day of sale, the deferred payments to draw six per cent, interest, and to be secured by mortgage on the premises. 76 Where real estate is being ordered sold in foreclosure proceed- ings, and has been, by order of court, appraised three times, and thereafter twice advertised and offered for sale, and not sold for want of bidders, the court is empowered to direct the amount for which the same shall be sold. It was said in Brown v. Connecticut, etc., 77 in construing the provision of these statutes, 78 that "it will be seen that the lan- guage is the same in both sections. If any number of reappraise- ments may be ordered under section five thousand four hundred and sixteen (Gen'l Code, § 11710), it would appear to follow that any number may be ordered under section five thousand four hundred and seventeen (Gen'l Code, §11711). The only difference between the sections being that under section five thousand four hundred and sixteen the court may direct the amount for which the premises may be sold, and under Gen'l Code, § 11711 (R. S. § 5-117) may order a sale on time." Sec. 134. When execution to be returned. The officer to whom a writ of execution is directed is required to return such writ to the court, to which it is returnable within sixty days from the date thereof. 79 "Gen'l Code, §11710 and § 11711 i R. S. s 5416 and §5417). 19 Gen'l Code. §11712 l R. S. §5418). See Gen'l Code, s 12104 (R. S. § 5596 t . for penalty for non- compliance with thi* statute. 7 -"> Brown v. Connecticut. etc.. , 6 C ('. 62. 76 Gen'l Code, § 11711 (R. S. §5417). " 6 C. C. 67. §§ 135, 13t) MERWINE ON REAL ACTIONS. 100 In case where by decree and order of sale a sheriff is made a special master commissioner and is invested with full power in that capacity to carry into effect such order of sale, and the sheriff under the order of sale causes the real estate to be appraised and advertised, and had not fully sold it before the sixty days had expired within which he was ordered by the writ to make return of it, and when, upon motion of plaintiff to grant an alias order to said sheriff for an extension of time to make a return of the former order of sale, it was ordered that the sheriff have further time to make return of said former order and ap- praisal and sale of said real estate, and where said real estate was sold after the expiration of said sixty days, it was held that such proceedings gave the purchaser good title to said property. 80 Sec. 135. How judgment against principal and surety entered — Execution in such case. When judgment is rendered in a court of record within this State upon an instrument of writing in which two or more per- sons are jointly or severally bound, and it is made to appear to the court, by parol or other testimony, that one or more of the persons so bound signed the same as surety or bail for his or their codefendant, the clerk of such court, in recording the judg- ment thereon must certify which of the defendants is principal debtor and which surety or bail ; it is made the duty of the clerk to issue execution on such judgment, commanding the officer to cause the money to be made of the goods and chattels, lands and tenements of the principal debtor, or, for want of sufficient prop- erty of the principal debtor to make the same, that he cause the same to be made of the goods and chattels, lands and tenements of the surety or bail; and the property, both personal and real, of the principal debtor within the jurisdiction of the court, must be exhausted before any property of the surety or bail can be taken in execution. 81 Sec. 136. Fee of appraisers of real estate — Penalty for neg- lecting to serve as an appraiser. Each appraiser of real estate under the provisions of the fore- going sections shall receive fifty cents per day for his service, to be collected on the execution by virtue of which the property soXewcomb v . Receiver. 23 W L. bi Gen'l Code, §11713 (R. 8. B. 75, reversing 2 C. C. 330. § 5419). 101 REAL ESTATE UNDER JUDGMENTS. §§ 137, 138 appraised was levied on ; and when any freeholder, summoned as an appraiser, fails to appear at the time and place appointed by the officer and discharge his dnty as an appraiser, he shall, on complaint made 1o a justice of the peace of the township in which he resides, forfeit and pay the sum of fifty cents for every such neglect, unless he render a reasonable excuse, which shall be col- lected by the justice and paid into the township treasury for the use of the township. 82 In an action where the appraisers were each allowed a fee of one dollar and the officer swearing the appraisers was allowed forty cents for each appraiser, on motion to retax costs, the appraisers' fees were each reduced to fifty cents, and the officer for swearing the appraisers was not allowed any fee for the rea- son that the statute section fifty-three hundred and eighty-nine (Gen'l Code, § 11672) requires the officer making the levy to administer the oath to the appraisers, but it provides no fee to him for so doing: it simply requires him to do something without compensation, and as an officer he is bound to do it and can get no fees not provided by the statute. 83 Sec. 137. Execution may issue to another county and may be returned by mail. When execution is issued in any county and directed to the sheriff or coroner of another county, the sheriff or coroner hav- ing execution may, after having discharged all the duties re- quired of him by law, transmit such execution, by mail, to the clerk of the court who issued it; and on proof made by such sheriff or coroner that the execution was mailed soon enough to have reached the office where it was issued within the time pre- scribed by law, he will not be liable for any amercement or pen- alty if it does not reach the office in due time. 8 * Sec. 138. The execution docket and what it should contain — The index thereto. The clerk of the court of common pleas is required to enter upon the execution docket the names, in full, of the parties t<> the case in which the execution is issued, the number of the cause 82 Gen'l Code, §11714 (R. S. elusive, for forms and for proce- § 5420 ) . dure where an execution is issued »3 Home, etc., v. Hoskins, 6 N. P. to another county, levy made and 274. execution returned and property s* Gen'l Code, §11716 (R. S. sold under petition to marshal §5421). See Nos. 14 to 47, in- liens. §§ 139,140 MEttWINE ON REAL ACTIONS. 102 upon the appearance docket, the number of execution, the date of its issue, the amount of the judgment, the costs due each per- son or officer, the time when the judgment was rendered, and the date of the return, and the return must be recorded therein in full. 85 The clerk is also required to keep an index to the execution docket, showing in separate columns the names of all parties against whom and in whose favor an execution has been issued, the number of the execution, and the number of the case upon the execution docket. 86 Sec. 139. Proceedings when order of sale issued in case not on trial docket. When an order of sale is issued in a ease not on the trial docket, it is made the duty of the clerk to enter it upon the execution docket, and enter the subsequent proceedings had in pursuance thereof, in the same manner that executions and proceedings thereon are entered; when a sale of real estate is made in pur- suance of such order, it must be confirmed in all respects as sales on executions are confirmed, and after the sale the officer must be governed in all respects by the law relating to sales on ex- ecution. s7 Sec. 140. Failure of sheriff to perform duties required in con- nection with sale of real estate. It is provided by statute that if an execution or order of sale, directed to an officer, come to his hand to be executed, and he neglect or refuse to execute it ; or if he neglect or refuse to sell property of any kind which, by any writ or order, he is directed to sell, or fail to call an inquest, or to return to the clerk's office a copy of the certificate of appraisement made by the inquest, or neglect to return to the proper court an execution or order of sale to him directed, on or before the return day thereof, such officer shall, on motion in court and notice as required by stat- ute ss be amerced in the amount of such judgment, including costs with ten per cent, thereon, to and for the use of such plaintiff or defendant, as the case may be. 89 ^Gen'l Code, §11718 (R. S. «« Gen'l Code, §12103 ( R. S. § 5423 ) . § 5594 ) . so Gen'l Code, §1171!) ( R. 8. ™ Gen'l Code, §12104 (R. S. §5424). §5595). 87 Gen'l Code, §11720 (R. S. § 5425 ) . FORMS. PROCERURE WHERE REAL ESTATE IS SOLD BY EXECUTION ISSUED ON A JUDGMENT IN A CIVIL ACTION. FORMS. 1. The petition. Cognovit. 2. The answer in cognovit. 3. The judgment by confession. 4. The execution issued in the above case. 5. Sheriff's proceeding under the writ of execution. 6. The precipe for order of sale. 7. The order of sale directed by the Clerk to the Sheriff. 8. The appraisement ^f real estate under the writ. FORMS. 9. The proof of publication and notice of sale. Notice of sheriff's sale under the vendi. Sheriff's return of said writ. The order of the court approv- ing and confirming sale by sheriff and ordering deed. Sheriff's deed on sale of real estate under an execution. 10 11 12 13 Petition — Cognovi t. No. 1. The petition in such case. A. B. S. Company, Plaintiff, vs. B. T. R., Defendant. The plaintiff says that it is a corporation duly incorporated and or- ganized under the laws of the State of Ohio, having its banking house and principal place of business in the City of , in the County of , Ohio; that this, its action, is founded upon a promissory note of which the following is a copy, with all endorsements and credits thereon: $- -, Ohio, -, 19- On demand after date, for value received, we jointly and severally promise to pay to A. S. B. Company, at its banking house in , Ohio, the sum of dollars, witli interest thereon at the rate of per cent, per annum, payable 103 annually after date until paid, MERWINE ON REM, ACTIONS. 104 and we jointly and severally hereby authorize any attorney-at-law to ap- pear for us, or any of us, in an action on the above note, at any time after the same becomes due, in any court of record, in the State of Ohio, to waive the issuing and service of process against us, or any of us, to confess judgment in favor of the legal holder of said note against us, or any of us, for the amount that may then be due on said note, at the rate of interest therein stipulated, and for process of suit, and to waive and release all errors in said proceedings and all right to prosecute a pe- tition in error upon such judgments or proceedings. Said note being endorsed as follows: $ . , 19 . There is due the plaintiff from the defendant on said note the sun of $ . which it claims with interest from day of , 19 , at per cent, per annum, payable annually until paid, and for which, with costs of suit, it asks judgment against the defendant. Attorney for Plaintiff. Verified as in other cases. No. 2. The answer in cognovit. A. B. S. Company, Plaintiff, vs. B. 1 . R., Defendant. The defendant, B. P. R., by , attorney, and an attorney of record in this court, duly authorized therefor by the warrant of attorney embraced in the note sued on in this suit, and which note, with the ac- companying warrant of attorney is produced, now comes and waives the issuing and service of process in this action, and hereby enters his appearance of said defendant herein, and said defendant, by , said attorney, duly authorized as aforesaid, says he cannot gainsay or resist the facts stated and allegations in the petition of said plaintiff herein filed against him, but acknowledges and confesses the same to be true, and says he is indebted to the plaintiff on the said note in manner and form as the plaintiff has in its petition set forth, and that the amount due upon said indebtedness, at this day, is the sum of dollars, bearing interest at per cent, per annum, payable annually until paid, and therefore for that sum, with interest from the day of — — . 19 . at per cent, per annum, payable annu- ally until paid, according to process, he confesses judgment in favor of plaintiff, and waives and releases all errors in this proceeding and all right to prosecute a petition in error upon such judgment or proceeding. Attorney for Defendant. 105 FORMS. No. 3. The judgment by confession. A. B. S. Company, Plaintiff, vs. B. T. R., Defendant. This day came the plaintiff, by plaintiff's attorney, and files its peti- tion against said defendant. B. P. R. ; and thereupon , one of the attorneys of record of this court, also appeared in open court for and on behalf of said defendant, B. P. R., and who, by virtue of a war- rant of attorney for that purpose duly executed, now produced in open court, and duly proven, waived the issuing and service of process, and entered the appearance of said defendant herein, and. by virtue of the same warrant of attorney, confessed that there is due from said defendant to said plaintiff, as is alleged in said plaintiff's petition, the sum of dollars, bearing interest at per cent, per annum, payable annually until paid, and that said plaintiff ought to recover of said defendant a judgment for that sum. It is therefore considered by t he court that said The A. S. B. Com- pany, plaintiff, do recover from said B. P. R., defendant, the said sum of dollars so as aforesaid confessed to be due. together with costs of suit herein to be taken, and with interest to be computed from the day of , If) , at the rate of per cent., payable annually until paid, and by virtue of said warrant of attorney all errors in these proceedings are released, and all rights of prosecuting a petition in error upon such judgment or proceeding are waived. No. 4. The execution issued in the above case. State of Ohio. County, ss.: To the Sheriff of County, Greeting: YVitf.reas. In a certain cause recently pending in our Court of Com- mon Pleas within and for said county of . The A. S. B. Com- pany, plaintiff in said cause, by the consideration of said court, on the day of , 1!) . recovered judgment against B. P. R,. de- fendant in said cause, for the sum of $ , with interest thereon at per cent, from , and $ . as of record, is manifest. You are therefore commanded that the goods and chattels, and for the want thereof of the lands and tenements of the said defendant, B. P R., you cause to be made the said several sums of money, with interest thereon from the day and year aforesaid until paid, and also the sum of $ . and cost of increase on said judgment, and the accruing costs, and that you have the said money before our said Courl of Com- mon Pleas in sixty days from the date hereof. Witness . Clerk of our said 'Court of Common Pleas, this day of . 19 . MEBWINE ON REAL ACTIONS. 106 No. 5. Sheriff's proceedings under the writ of execution. iState of Ohio, County, ss. : Received this writ , 19 , at o'clock — M., and pur- suant to its command having, after diligent inquiry, found no goods or chattels whereon to levy, I did, on the day of , 19 , levy this writ on tlie following described lands and tenements of the within named B. P. R., situated in the county of and State of Ohio, and more particularly bounded and described as follows: (Here insert description of said real estate.) And this writ is returned for want of time for further proceedings. Sheriff. No. 6. The precipe for order of sale. A. B. S. Company, Plaintiff, vs. B. T. R., Defendant. To the Clerk of the Common Pleas Court, County, Ohio: Issue a venditioni exponas in the above action directed to the sheriff of County, Ohio, returnable according to law. » Attorney for Plaintiff. No. 7. The order of sale directed by the clerk to the sheriff. A. B. S. Company, Plaintiff, vs. B. T. R., Defendant. State of Ohio, County, ss.: To the Sheriff of County, Greeting: We command you that, to satisfy a judgment which, by the consid- eration of our Court of Common Pleas, within and for said county of . on tlie day of , 19 , recovered against B. P. R. for the sum of $ , with interest thereon from the day and year above stated until paid, and also the costs of increase thereon, amounting to e true, and that there is due plaintiff from said defendants the sum of $ , with in- terest thereon from the day of . 19 . at per cent. It is therefore considered by the court that the plaintiff recover from said defendants said sum of $ , with interest thereon at per cent, from the day of -, 19 , and for costs of suit herein expended, taxed at dollars. MERWINE ON REAL, ACTIONS. 114 No. 19. Execution issued to the sheriff. The State of Ohio. County, ss.: To the Sheriff of , Greeting: Whereas, In a certain cause lately pending in our Court of Common Pleas within and for said county of , B. T. Company, plaintiff in said cause, by the consideration of said court, on the day of , A. D. 19 , recovered judgment against L. F. R., I. W. G. and A. H. P., defendants in said cause, for the sum of $ . with interest at per cent, from , 19 , and $ costs, as of record mani- fest. You are Therefore Commanded, That the goods and chattels, and, for the want thereof, of the lands and tenements of the said defendants, L. F. R., I. W. G. and A. H. P., you cause to be made the several sums of money, with interest thereon from the day and year aforesaid, until paid, and also the sum of $ , the costs of increase on said judgment, and the accruing costs, and that you have the said money before our said Court of Common Pleas in sixty days from the date hereof, to render to the said plaintiff, and have then and there this writ. Witness, , Clerk of our said Court of Common Pleas, this day of , A. D. 19 . By (Jlerk, Deputy. No. 20. Sheriff's return of the execution. Sheriff's Return. The State of Ohio, : County, ss. : Received this writ . A. D. 19 , at o'clock — M., and, pursuant to its command, no goods, chattels, lands or tenements found whereon to levy this writ, and for want of same this writ is returned this day of , 19 . Sheriff. No. 21. Execution issued to the sheriff of another county. The State of Ohio, County, ss. : To the Sheriff of County, Greeting: Whereas, in a certain cause, lately pending in our Court of Common Pleas, within and for said county of , B. T. Company, plaintiff in said cause, by the consideration of said court, on the day of , A. I). 19 . recovered judgment against L. F. R., I. W. G. and A. II. P., defendants in said cause, for the sum of $ , with interest at per cent, from , 19 , and $ costs, as of record mani- fest. 115 FORMS. You are Therefore Commanded, That the poods and chattels, and, for the want thereof, of the lands and tenements of the said defendant I. W. G., you cause to l>e made the said several sums of money, with in- terest thereon from the day and year last aforesaid, until paid, and al><> the sum of $ , the costs of increase on said judgment, and the accruing costs, and that you have the said money hefore our said Court of Common Pleas in sixty days from the date hereof, to render to the said plaintiff, and have then and there this writ. Witness, , Clerk of our said Court of Common Pleas, this day of , A. D. 19 — — . . Clerk. No. 22. Sheriff's return of his proceedings under the writ of execution. Sheriff's Return. The State of Ohio, Received this writ "ounty, ss. : -. A. D. 19- at o'clock M., and. pursuant to its command, on the same day, and for want of goods and chattels whereon to levy, I levied this writ upon the following descrihed real estate, to-wit: (Here follows description of real estate.) I now return this writ without further proceedings thereon. Sheriff. PROCEEDINGS TO SET ASIDE FRAUDULENT DEED AND FOR SALE OF REAL ESTATE TO SATISFY JUDGMENT AND MARSHALLING LIENS. FORM. 23. The petition in such case. 24. The summons and the sher- iffs order of service of same. 25. The answer. 26. The answer and cross-petition of another defendant. 27. Decree setting aside deed and ordering sale of real estate. 28. The order of sale from the clerk directed to the sheriff. 29. Proof of publication and notice of sale. 30. Notice of sheriff's sale of real • ■state. 31. The sheriff's return of the sale. 32. Motion to confirm sale and ap- portion costs. FORM. 33. Order of the court confirming sale and ordering deed. 34. Sheriff's deed in such case. 35. Petition for sale of real estate upon levy made under a foreign execution. 36. Summons in such ease and the sheriff's return. 37. Summons to another county and the sheriff's return thereof. 38. Answer and cross-petition pet- ting up a life estate on said real estate. 39. Answer of judgment debtor. General denial. 40. Answer of a mortgage lien- holder setting up mortgage. MEBWINE ON REAL ACTIONS. 116 FORM. 41. Entry finding the issues in favor of plaintiff and order- ing sale of real estate. 42. Order of sale from the clerk to the sheriff. 43. The proof of publication. FORM. 44. 45. 40. '47. Legal notice of sheriff's sale. Sheriff's return of his sale. Confirmation of sale and order for deed and distribution. Sheriff's deed in such case. No. 23. The petition in such case. Court of Common Pleas, B. T. Company, County, Ohio. Plaintiff, vs. No. L. F. R., M. O. R., R. S., The M. L. A. of Ohio. Defendants, Petition. Plaintiff is a corporation duly incorporated under the laws of the State of Ohio, not for profit, has existed as such at and prior to the times hereinafter mentioned, and has its usual place of business in the city of . Ohio. On or about , 19 , for a valuable consideration, L. F. R. became indebted to plaintiff in the sum of $ ■ ■ upon a promissory note, of which the following is a copy: $ . , Ohio, , 19 . pany years after date I promise to pay to the order of B. T. Com- dollars at per cent, interest. Value received. L. F. R., I. W. G., A. H. P. Nothing whatever has been paid on said indebtedness, and plaintiff has ever since been the owner and holder of said note. On or about , 19 . while so indebted to plaintiff, the de- fendant L. F. R. caused to be recorded in the Record of Deeds of this county, in Volume , at page , a pretended deed of conveyance, bearing date of , 19 , whereby he purported to convey to his mother. M. 0. R.. the following described real estate, of which he, the said L. F. R., was then the owner in fee simple, to-wit : I Here insert descrip- tion of real estate.) Said pretended conveyance of said premises by said L. F. R. to his said mother, M. O. R., was without any adequate consideration, was for the purpose of placing the same beyond the reach of his creditors, and for the purpose of hindering, delaying and defrauding this plaintiff in the collection of its said claim; said transfer was made for the pretended consideration of $ , when, in fact, there was no valuable consid- eration, or a mere nominal and totally inadequate consideration. Said real estate was, at the time of said pretended sale, and still is, of the value of about $ . At the time of the making and recording 117 FORMS. of said pretended deed the said L. F. R. was largely indebted and wholly insolvent, which was known both to himself and the said M. 0. K.. and the said M. 0. R. acquiesced in said pretended conveyance for the purpose of aiding the said L. F. R. in hindering, delaying and defrauding his then existing creditors, including this plaintiff. Plaintiff had no knowledge of t lie fraudulent character of said conveyance until within four years of t lie tiling of this petition. On , 19 . plaintiff recovered a judgment in this court against the defendant L. F. R. ct al., on the above promissory note, in a cause Xo. , herein pending, wherein this plaintiff was plaintiff and L. F. R. et al. were defendants, for the sum of $ , with inter- est thereon at per cent, per annum from , 19 . and also costs therein, taxed at $ , which said judgment is in full force and effect, unreversed, and wholly unsatisfied. On , 19 , an execution was duly issued on said judgment out of said court, directed to the sheriff of County, and, for want of goods and chattels of said L. F. R., or other defendants in said action, whereon to levy, was on the same day duly levied upon the above de- scribed real estate belonging to said L. F. R., which levy still subsists. The defendants R. S. and M. L. A. of , Ohio, each claim some mortgage lien on said premises, the amount now due them, respectively, if anything, plaintiff is unable to state. Plaintiff further says that, by reason of said pretended and fraudu- lent conveyance, so made by said L. F. R., and so received by the said M. 0. R., as grantee, and the said claims of R. S. and the M. L. A. of , Ohio, it is unable to sell said real estate upon execution in satis faction of its said indebtedness. Wherefore plaintiff prays that the said deed of conveyance from the said L. F. R. to said M. 0. R. of the said real estate may be declared void and may be vacated and annulled; that the said R. S. and the M. L. A. be made parties defendant, and required to set up their respective claims; that the property may be sold, the priority of the liens be de- termined, and the proceeds applied to the payment and satisfaction of the liens, including this plaintiff's, in the order of their respective priorities. all costs and increase costs, and that plaintiff may have such other and further relief as equity and its cause may require. Attorneys for Plaintiff. The above petition to be duly verified as in other cases. No. 24. The summons and the sheriff's return of service of same. The State of Ohio, County, ss.: To the Sheriff of said County, Greeting: You are commanded to notify L. F. R., M. 0. R., R. S. and The M. L. A. of . Ohio, that they have been sued by R. T. Co. of . Ohio, in the Court of Common Pleas of County, and that, un- less they answer by th > day of , in the year of our Lord MERW1NE ON REAL ACTIONS. 118 one thousand eight hundred and , the petition of said plaintiff against them filed in the clerk's olfice of said county, such petition will be taken as true, and judgment rendered accordingly. You will make due return of this summons on the day of , in the year of our Lord one thousand eight hundred and . Witness my hand and the seal of said court this day of , in the year of our Lord one thousand nine hundred and . Clerk Court Common Pleas, County, Ohio, By , Deputy. Sheriff's Return. The State of Ohio, County, ss.: Received this writ . in the year of our Lord one thousand nine hundred and , at o'clock — m., and, pursuant to its command, on , in the year of our Lord one thousand nine hun- dred and , I served the same by personally handing a true and duly certified copy of this writ, with all the indorsements thereon, to the following of the within named defendant, M. 0. R. I also, on the same day, left a true and duly certified copy of this writ, with all the indorse- ments thereon, at the usual place of residence of each of the following of the within named defendants: L. F. R. and R. S. I also, on the same day, served the within named defendant, The M. L. A. of , Ohio, by personally handing a true and duly certified copy of this writ, with all the indorsements thereon, to O. S. C, secretary of said The M. L. A. of , Ohio, the president and vice-president not found within my bailiwick. C. A. P., Sheriff. No. 25. The answer. Joint and Several Answer of Defendants L. F. R. and M. 0. R. B. T. Company, Plaintiff, vs. No. . L. F. R., M. O. R., R. S., The M. L. A. of , Ohio, Defendants. Now come defendants L. F. R. and M. 0. R., and, for their joint and several answer to the petition of plaintiff herein, say: That they admit that plaintiff is incorporated, and the execution and delivery to plaintiff of the said note of $ , as set out in the peti- tion, and that the same is unpaid. They admit that on . 10 , plaintiff recovered judgment against' the makers of said note, as set out in the petition, and that exe- cution was issued and levy made on the real estate mentioned in the peti- tion, and that said judgment is unsatisfied. They admit that on the said , 19 . and until about , 19 , defendant L. F. R. was the owner in fee simple of said , Ohio, described in the petition, and that said L. F. R. conveyed 119 FORMS. by deed the same to the defendant M. O. R., on or about said , 19 , which devil of conveyance was duly recorded, as set out in the petition; but these defendants deny each and every other allegation in said petition contained, and especially deny the assertions of plaint ill' that said deed "was a pretended deed of conveyance" only, and that the same only "purported to convey to his mother, V. (). It.," the premises in said petition described, and they especially deny all want of consideration and fraud in said transfer, as alleged by plaintiff. On the other hand, they aver that said conveyance was for a full and adequate consideration, and further, these defendants deny that said premises were worth $ at the date of said conveyance, or that they have at any time since been worth said sum of $ ; and further, they deny that they were, at said . 19 , worth any more than the encumbrances upon said prem- ises, with the just and true indebtedness of defendant L. F. R., at said date, to said defendant M. O. R.; and further, these defendants deny that said L. F. R. ever, after said , 19 , owned or possessed any in- terest in said premises, or that he had any equity in the same at said date of transfer which he conveyed to said M. (). R., the mother of said L. F. R. Defendant M. (). R. is the legal owner and holder of said premises by purchase. Wherefore defendants pray that the petition of plaintiff herein may be dismissed, and that they may go hence without day and recover their costs herein, taxed at $ , and that the title to said premises may be quieted in defendant M. O. R., and for such other and further relief as is equitable and just in the premises. , Attorney for Defendants. Answer verified as in other actions. No. 26. Answer and cross-petition, B. T. Company, Plaintiff, vs. No. ' . L. F. R., M. O. R., R. S., The M. L. A. of : — , Ohio, Defendants. 1. First Cause of Action: The defendant L. F. R. is indebted to the defendant R. H. on a promis- sory note, of which the following is a copy, with all credits and indorse- ments thereon: (Here copy note and indorsements.) There is due plaintiff from defendant on such note the sum of $ , which he claims, with interest thereon from the day of , 19 ; on $ thereof at the rate of per cent, per annum, payable annually, and on $ at per cent, per annum. 2. Second Cause of Action: Said defendant L. F. R. is further indebted to plaintiff on a promis- sory note, of which the following is a copy, with all credits and indorse- ments thereon: (Here copy note and indorsements.) MERWINE ON REAI, ACTIONS. 120 There is due the defendant R. S. from the defendant L. F. R. on said note the sum of $ , which he claims, with interest on $ at the rate of per cent, per annum, payable annually, and on $ at per cent, per annum. 3. Third Cause of Action: The said defendant L. F. R. is further indebted to plaintiff on a prom- issory note, of which the following is a copy, with all credits and indorse- ments : ( Here copy note and indorsements, i There is due the defendant R. S. from the defendant L. F. R. on said note the sum of $ , which he claims, with interest on $ the rate of per cent, per annum, payable annually, and on $ at per cent, per annum. 4. Fourth Cause of Action: The defendant R. S. says that the defendant L. F. R. did, on the day of , A. D., 19 , convey the premises in the petition de- scribed to the said R. S. by a mortgage deed, to secure the payment of $ , witli interest at the rate of per cent, per annum, payable annually, until due, and per cent, after maturity, which said deed of mortgage was, on the day of — , A. D., 19 , at o'clock — m, duly left for record with the Recorder of said County, Ohio, whereby it became, and still is, a valid and subsisting lien upon the premises aforesaid; and the said L. F. R. has paid, on account of the in- debtedness secured by said mortgage, $ of the principal, and in- terest to the day of , 19 , and no more; and the bal- ance of $ . with interest, is still due and owing the said R. S. from the said L. F. R. Wherefore the said R. S. asks judgment against the said L. F. R. for the sum of $ , with interest on $ thereof at the rate of per cent, per annum. That the property in the petition described may be sold, and that his said claim be satisfied out of the proceeds thereof, according to the priority of the liens on the same, and for such other and further relief as may be just and proper in the premises. Attorneys for Plaintiff. The answer should be verified. No. 27. Decree setting aside deed and ordering sale of real estate. B. T. Company, Plaintiff, vs. No. . L. F. R., M. O. R., R. S.. The M. L. A. of , Ohio., Defendants. Entry. This flay this cause came on to lie heard upon the petition of plaintiff and the joint and several answer of the defendants, L. F. R. and M. 121 FORMS. 0. R. and the evidence; and the cause was argued by counsel and sub- mitted to the court; on consideration whereof the court finds upon all the issues joined in favor of the plaintiff, that the defendant, M. <). I!., obtained the deed of conveyance set forth in the pet it ion from the said L. F. R. without any consideration therefor and in fraud of the rights of plaintiff as a creditor of the said L. F. It. as alleged in said petition; that the pltintiff hereinbefore in this court in cause No. , on 19 • had (.uly recovered a judgment against the defendant. 1.. F. R., in the sum of $ , with interest at per cent, per annum from • 19 ' and costs of suit, which judgment is wholly unsatisfied; that the plaintiff hereinbefore in this court in cause No. , on was duly levied on the premises described in the petition by virtue of which levy plaintiff acquired a specific lien for said judgment on the premises described in the petition herein. It is further ordered and adjudged by the court that the deed of conveyance described in plaintiff's petition herein from said L. F. R. to M. O. R. for the following described real estate situate in the County of , in the State of Ohio, and in the city of , and bounded and described as follows: (Here insert description of real estate) be and the same is hereby vacated, set aside, annulled and declared of no force and effect. It is therefore further ordered, adjudged and decreed that said prem- ises be sold, and the proceeds arising therefrom be applied to the payment of claim of the several lien holders herein, including the lien of plaintiff, in order of the priorities of said several liens; and that an order of sale issue to the sheriff of this county commanding him to appraise, advertise and sell as upon execution the premises hereinbefore described, and report, his proceedings in the premises to this court for further order. And upon application and for good cause shown, advertisement in a German newspaper is hereby dispensed with: to all of which findings, order and decree, defendants hereby except, and notice having been given by the defendants of their intention to appeal the case to the Circuit •Court, bond is hereby fixed at $ . No. 28. The order of sale from the clerk directed to the sheriff. The State of Ohio, County, ss.: To the sheriff of said county, Greeting: Order of Sale. Whereas, At a term of the Court of Common Pleas, held at , in and for said county, on the day of , A. D. one thou- sand nine hundred and , in the cause of B. T. Company, plaintiff, and L. F. R., et al, defendants, it was ordered, adjudged and decreed a 3 follows, to-wit: That the following described real estate, situate in the county of , i n the State of Ohio, and in the city of , and bounded and described as follows: (Here insert description of real estate) be sold to satisfy a judgment heretofore rendered in this court on MERWINE ON REAL ACTIONS. 122 , 19 , for the sum of $ , with interest at per cent, per annum from , 19 , and costs of suit against L. F. R. and in favor of said plaintiff, and the proceeds arising tlierefrom bo applied to the payment of the several lienholders herein, including the lien of plaintiff in the order of the priorities of said several liens; and that an order of sale issue to the sheriff of this county commanding him to have appraised, advertise and sell as upon execution the premises herein- before described and report his proceedings in the premises to this court for further orders. We therefore Command You, That you proceed to carry such order, judgment and decree into execution agreeably to the tenor thereof, and that you expose to sale the above described real estate, under the statute regulating sales on execution, and that you apply the proceeds of such sale in satisfaction of said judgment and decree, with costs and interest, as specified therein; and that you make report of your proceedings herein, to our Court of Common Pleas within sixty days from the date hereof, and bring this order with you. And [ certify under seal of court that the description of property herein is correctly copied from the records of this case on file in this office. Witness my signature as clerk of our said Court of Common Pleas, and the seal of said court, at , this day of , A. D. one thousand nine hundred and . , German publication dispensed with. tlerk. No. 29. Proof of publication and notice of sale. Proof of Publication. State of Ohio, County, ss.: D. E. D., cashier for the , a newspaper published at , County, Ohio, personally appeared and made oath that the attached printed advertisement was published for consecutive weeks in said newspaper from and after , 19 , and that said paper is of general circulation in said county and State. D. E. D., Subscribed and sworn to this day of , 19- Notary Public in and for County, Ohio. No. 30. Notice of sheriff's sale of real estate. Court of Common Pleas, County, Ohio. B. T. Company. Plaintiff, vs. No. . L. F. R., ef al. Defendants. In pursuance of an order of sale from said court to me directed, I will offer for sale, at public auction, at the door of the eourt house in the 123 FORMS. city of , County, Ohio, on . the day of , A. D. 10 , at o'clock — m., the following described real estate, situate in the county of and State of Ohio, and in the city of . and bounded and described as follows: (Here supply descrip- tion ) . Said property is located and known as (Here insert number and name of street, if any ) . Appraised at $ . Terms of sale, . , Sheriff of County, Ohio. Plaintiff's A ttorney. German publication dispensed with. No. 31. The sheriff's return of the sale. Sheriff's Return. The State of Ohio, County, ss. : In obedience to the command of the order of sale hereto annexed, I did, on the day of , A. 1). one thousand nine hundred and , summon W. A. O., P. J. M. and C. A. D., three disinterested freeholders, residents of said county, who were by me duly sworn to impartially appraise the lands and tenements therein described, upon actual view, and afterward, on the day of , A. D. one thousai d nine hundred and , said appraisers returned to me, under their hands and seals, that they did, upon actual view of the premises, estimate and impartially appraise the real value in money of the same at dollars. A certified copy of said appraisal I forthwith deposited in the office of the clerk of the Court of Common Pleas of said county. And on the day of , A. D. one thousand nine hundred and , I caused to be advertised in the (a news- paper printed and published and of general circulation in County, Ohio) said lands and tenements to be sold at public sale, at tin- door of the court house of said county. On the day of , A. D. one thousand nine hundred and , at o'clock m. of said day. And having advertised the said lands and tenements for more than thirty days previous to the day of sale, to-wit: live consecutive weeks on the same day of the week in each week, ami in pursuance of said notice, I did, on said day of , A. I), one thousand nine hundred and , at the time and place above mentioned, proceed t»> offer said lands and tenements at public sale at the door of said court house, and then and there came R. S., who bid for the same the sum of dollars, and said sum being more than two-thirds of tin' appraised value thereof, and said R. S. being the highest and best bidder therefor, 1 then and there publicly sold and struck off said lands and tenements to him for said sum of ($ ) dollars. Sheriff. MERWINE ON REAL ACTIONS. 124 No. 32. Motion to .confirm sale and apportion costs. B. T. Co., Plaintiff, vs. L. F. R., M. O. R., R. S., The M. L. A. of , Ohio, Defendants. Motion. The M. S. and L. A., defendant herein, now comes and moves the court to confirm the sale made by the sheriff herein on , 19 , and to tax the cost herein, and to apportion the costs between the parties and apportion the costs to be paid out of the proceeds of the said sale. Attorney for Defendant. No. 33. Order of court confirming sale and ordering deed. B. T. Company, Plaintif, vs. L. F. R., M. O. R., R. P., The M. L. A. of , Ohio, Defendants. This day came the M. S. and L. A., defendant herein, and upon its application leave is granted by the court to insert in the second cause of action in its answer and cross-petition filed herein, a credit upon its claim set forth therein for taxes paid by it of $ , omitted by over- sight in drafting its said cross-petition. And all the parties hereto being i l default for answer or demurrer to said answer and cross-petition, the allegations thereof are hereby confessed by them to be true, and the court finds that there is due said defendant, The M. S. and L. A. from said defendant, L. F. R., on the claims set up in said answer and cross- petition, the sum of $ , and that the same is, next after the un- paid taxes thereon, the first and best lien on the real estate described therein. And thereupon came the said defendant. The M. S. and L. A., and presented to the court the return of the sheriff upon the order of sale herein, showing the sale made by him of the real estate involved in this action on the day of , 1!) , and asked confirmation of the same, and the court upon careful examination of the said pro- ceedings of the sheriff under said order of sale, and the sale made by him thereunder, find that the same are in all respects according to the law and the orders of this court, and do approve and confirm the same, and it is ordered that the sheriff convey to the purchaser at said sale, R. S., the premises so sold, to wit : (Here insert description of property.) And the court coming now to distribute the money i-i the hands of the sheriff arising from said sale, amounting to $ , it is ordered that the sheriff out of said money in his hands pay: 125 FORMS. First, the taxes and assessments now on the duplicate for collection by the treasurer, charged against said premises and remaining unpaid, amounting to $ . Second, the cost of this action by the court determined and appor- tioned as payable out of the proceeds of said sale, being all the costs in this action, excepting the charges for copies of pleadings and the costs of issuing and serving subpoenas for witnesses and the fees of witnesses, on behalf of the defendants, L. F. R. and M. O. R., the costs apportioned by the court to be paid out of the proceeds of said sale, amounting to, $ . Third, to the defendant, The M. S. and L. A. the balance of said money. amounting to $ as a credit upon the amount found by the court due to it on its claim set forth in its answer and cross-petition. And it is further ordered by the court that the clerk cause satisfaction to be entered upon the margin of the records of the mortgages on said premises involved in said action, to-wit: in Vol. , p. , of the records of mortgages of said county. No. 34. Sheriff's deed in such case. To all Persons to Whom these Presents shall come. Greeting: Whereas, On the day of , 19 , B. T. Company, plaintiff, filed its certain petition, and then and there commenced a civil action in the Court of Common Pleas of County, Ohio, against L. F. R. et al, and numbered on the docket of said court as case Xo. — — , praying therein, among other things, for the sale of certain real estate in said petition and hereinafter described; and, Whereas, Such proceedings were had in said action, that by the con- sideration and judgment of said court on the day of , 19 , in the ■ — term, 19 , the said B. T. Company recovered a judgment against the said L. F. R. in the sum of $ and costs of suit; and, Whereas, It was then and there further ordered, adjudged and decreed by said court in said action that unless the said defendant, L. F. R., should pay the costs of said suit and to the said B. T. Company, the amount so found due, within days from the entry of said decree, said prem- ises should be sold, and an order of sale should issue therefor to the sheriff of said county, , commanding him that lie should cause the lands and tenements in said petition and order mentioned and here- inafter described, to be appraised, advertised and sold according to law, and return his proceedings to said court: and. Whereas, afterward, on the day of -, 19 . in pur- suance of said order and judgment of said court and the thereon, an order of sale issued from said court in said cause directed to , sheriff of said county, commanding him to execute the said order, and in all things to be governed by the provisions of the statute in such case made and provided, and the said order with his proceedings thereon he should make due return ; and, Whereas, I , sheriff as aforesaid, having caused said prem- MERWINE ON REAL ACTIONS. 126 ises to be appraised and a copy of the appraisement to be duly filed in the office of the clerk of said court, and having advertised the time and place of selling the same in , a newspaper, printed and of general circulation in said county, for the period of thirty days prior to the day of sale, and otherwise complied with said orders and provi- sions of the statute in such cases made and provided, did on the day of , 19 , at the door of the court house, in said county, at o'clock M. of said day, expose to sale at public auction the premises hereinafter mentioned, and thereupon R. S., having bid for said premises the sum of $ , and said sum being the highest and best bid offered for the same, and being more than two-thirds of the ap- praised value thereof, the said premises were then and there struck off to him, the said R. S., the purchaser, for the sum above mentioned; and, Whereas, The said court at its term, 19 , having examined the proceedings aforesaid in the premises, under said order of sale, and being satisfied that the sale aforesaid had been made in all respects in pursuance to said judgment and order of sale and in accordance with the provisions and requisites of the statute relating to such sale, did order that such sale should be confirmed, and that said sheriff of County, Ohio, should convey said real estate by deed in fee simple to t-.c purchaser, R. S. Now. Know Ye. That T. the said , sheriff of ■ County, Ohio, as aforesaid, by virtue of said judgment, order of sale, sale and confirmation, and of the statute for such cases made and provided, and for and in consideration of the premises herein, and the sum of $ , which I acknowledge to have received from the purchaser above named, do hereby grant, sell and convey unto him, the said R. S., his heirs, assigns forever, the following real estate, situated in County, State of Ohio, and in . and bounded and described as follows: (Here insert description of real estate), together with all the privileges and appurtenances thereunder belonging and all the right, title and interest of the said L. F. R., and of all the other parties to said suit on, in and to the same. To Have axu to Hoi.o the premises aforesaid, unto the said R. S., his heirs and assigns forever, as fully and completely as 1, the said C. A. P.,, sheriff of County. Ohio, by virtue of said judgment, order of sale. sale and confirmation, and of tin- statute made and provided for such cases, might and should sell and convey the same. In Witness Whebeof 1 have hereunto set my hand and seal this day of , 19 . , Sheriff of County, Ohio. Signed, scaled and acknowledged in the presence of: State of Ohio, County, ss. : Personally appeared before me a notary public within and for said county the above named , sheriff of County, Ohio, the grantor in the above deed of conveyance, who acknowledged the signing 127 FORMS. and scaling of the same, to be his voluntary act and deed, for the uses and purposes therein mentioned. In Witness Whebeof 1 have hereunto set my hand and seal this day of , lit . Notary Public within and for County, Ohio. No. 35. Petition for sale of real estate upon levy made under a foreign execution. Court of Common Pleas, County, Ohio. B. T. Co., Plaintiff, vs. No. . I. W. G., E. M. G. and J. G. H., Defendants. Plaintiff is a corporation duly incorporated under the laws of the State of Ohio, not for profit, has existed as such at and prior to the times here- inafter mentioned, and has its usual place of business in the city of , Ohio. On the day of — — . 19 . by the consideration of the Court of Common Pleas of County, Ohio, in i ase No. , plaintiff recovered a judgment against the said defendant. 1. W. G., for the sum of $ . with interest on said sum at per cent, per annum from the day of , IS , and also his costs therein taxed, of which costs there is a balance of $ . Said judg- ment is wholly unpaid, unappealed and unreversed, except on the day of , 19 , there was paid on said judgment the sum of On the day of . 19 . plaintiff caused an execu- tion to be issued on said judgment against the defendant herein. I. W. G., and against other defendants in said case, directed to the sheriff of County, Ohio, who, on the same day returned said writ as follows: "No goods, chattels, lands or tenements found whereon to levy this writ, and for want of the same this writ is returned." On the day of , 19 . plaintiff caused an alias exe- cution to be issued on said judgment against the defendant, I. W. G. in said action and against the other defendants therein, directed to the sheriff of — County. Ohio, who, under said writ, for want <>f goods and chattels whereon to levy, levied on certain real estate of a defendant other than the defendant, I. W. G.. in said case. Said real e-tate. by virtue of said execution and levy was sold and by reason of other prior liens on said real estate, no part of the judgment and costs first herein alleged, were paid out of the proceeds of said sale. On the day of . 19 . plaintiff caused another alias execution to he issued on said judgment against the said I. E. <;. and the other defendants in said case, directed to the Sheriff of — County. Ohio. who. op the day of . 19 . returned said writ as follows: "No n the day of , 19 . the defendant, 1. VV. G., made and gave to this defendant his promissory note for the sum of J? , due live year- after date, with interest at the rate <>f per cent, per annum, payable semi annually; that in order to secure the payment of said note, the said defendant made and gave his mortgage deed upon the real estate described in the petition: that said mortgage was conditioned in substance that if the said defendant should well and truly pay said note according to its tenor, the said mortgage should be- come void; otherwise the same should remain in full force and effect. Defendant avers that the said mortgage was duly filed for rec ird in the office of the recorder of County; Ohio, on the day of . 1!) , at o'cl ick M., and is the first and best 131 FORMS. lien upon said real estate; that there has been nothing paid upon said mortgage and note, and that the terms thereof have been complied with, and there is nothing now due thereon. Wherefore, this defendant prays that his mortgage may be declared the first lien upon said premises, that all of the rights and estate vested in this defendant thereby may be recognized and determined, and tliat in any order, judgment or decree the rights and interest of this defendant may be protected, and if said property should be sold, that the same shall be sold subject to this defendant's mortgage, and for all such other relief as he is entitled to in the premises. Duly verified. Attorneys for Defendant. No. 41. Entry finding the issues in favor of plaintiff and ordering sale of real estate. B. T. Co., Plaintiff, vs. No. . I. W. G., E. M. G. and J. G. H., Defendants. This day this cause came on to be heard upon the petition of plaintiff, the answer thereto of the defendant. I. W. G., the answer and cross-peti- tion of the defendant, J. G. H., and the evidence; and, on consideration thereof the court finds the issues joined in favor of the plaintiff, and that on , 19 , by the consideration of the Court of Common Pleas of County, Ohio, plaintifi' did recover a judgment against the defendant, I. VV. G., in the sum of $ , with interest on said sum at the rate of per cent, per annum from , 19 and costs of suit, as set forth in the petition herein, which judgment is in full force and effect, is wholly unpaid and unsatisfied, except the payment of •$ on , 19 ; and that there is now. at the date of this finding and decree, due plaintifi' from the defendant, 1. E. G., on said judgment and costs, including interest, and after deducting said payment of $ as of , 19 , the total sum of $ — — . which is entitled to bear interest at the rate of per cent, per annum un- til paid; that executions were duly issued on said judgment, as alleged in the petition, and for want of goods and chattels whereon to levy, the execution of , 19 , directed to the sheriff of this county, was, by said sheriff on . ]9 . duly levied upon the premises de- scribed in the petition, and forthwith returned no1 sold by him, because of prior liens; that by virtue of said judgment and the execution and levy last mentioned, and the proceedings therein, plaintiff has a valid lien dating from said . 19 . on said real estate in the petition described for the said sum of $ . bearing interest from — , 19 . and plain! ill' is entitled to have said premises sold for the sat- isfaction thereof. The court further finds that the defendant. E. M. G. is years of age, is seized of a life estate in said premises by virtue of a MERWINE ON REAL ACTIONS. 132 lease executed to her , 19 , filed for record at o'clock p. St. of the same day, and recorded in Lease Records of said County, Volume , page , and that her said estate therein is superior and paramount to the lien of plaintiff herein. The court further finds that the defendant, J. G. H., on , 19 — , duly received from the defendant, I. \V. G., a mortgage on said prem- ises in the petition described, to secure the latter's promissory note of even date, for $ , bearing interest at per cent, per annum, payable semi-annually, which mortgage was duly filed for record in the office of the recorder of County, Ohio, at o'clock m. of said , 19 , all as alleged in the answer and cross-petition of said defendant, J. G. H.; that said J. G. H. by virtue of said mortgage acquired a lien on said premises, dating from , 19 , at o'clock M. for the sum of $ , bearing interest at the rate of ■ per cent, per annum, payable semi-annually, and that the same is the first and best lien on said premises; that said sum of $ , with interest as last aforesaid is now due to said J. G. H., who is entitled to have said premises sold for the satisfaction thereof. It is therefore ordered, adjudged and decreed that unless the defend- ant, I. W. G., shall within three days from the entry of this decree, pay or cause to be paid to the clerk of this court the costs of this case, and to the plaintiff herein the sum found due it as aforesaid, with interest at , per cent, per annum, the said premises be sold, and that an order issue to the sheriff of County directing him to have said premises ap- praised, subject to the said life estate of E. M. G., aged years, advertise and sell the same as upon execution, free and clear of the said liens of plaintiff and the defendant, J. G. H., but subject to said life estate of E. M. G. and report his proceedings to this coUrt for further order. On motion of plaintiff, and for good cause shown advertisement of sale in a German newspaper is hereby dispensed with. It is further ordered that both said parcels be sold as one parcel at not less than two-thirds the aggregate appraisement of both parcels. No. 42. Order of sale from the clerk to the sheriff. The State of Ohio, County, ss.: To the Sheriff of County, Greeting: . , In pursuance of an order and decree of our Court of Common Pleas, within and for the county of and State of Ohio, made at term thereof, A. D. 19 , in a certain action wherein B. T. Co. was plaintiff and I. W. C. et al, defendants, we command you to proceed with- out delay, and cause to be appraised, advertised and to sell according to law the following real estate, situate in the County of and .State of Ohio, to-wit: (Here insert description of real estate.) And out of the proceeds of such sale you pay: First — The taxes and assessments then on said premises. Second — The costs and increase costs in the aforesaid cause. Third . And that your proceedings in the premises you make known to our 133 FORMS. said Court of Common Pleas within and for the County of , within sixty days from the date thereof, and bring this order with you. Witness my name as clerk of our said Court of Common Pleas and the seal thereof at , this day of , A. D. 19 . T. J. L. Clerk of the Court of Common Pleas, County, 0. No. 43. The proof of publication. -, Ohio, , 19- The State of Ohio, County, ss. : S. M. B., one of the publishers of The , a newspaper printed and of general circulation in the county of and State of Ohio, being duly sworn according to law, says that a notice, a true copy of which is hereto attached^ was published in said paper for consecutive weeks, beginning on the day of , 19 . S. M. B. Sworn to and subscribed before me this day of , 19 G. A. B. Notary Public, County, 0. No. 44. Legal notice of sheriff's sale. B. T. Co., Plaintiff, vs. No. . I. W. G., E. M. G. and J. G. H., Defendants. By virtue of an order of sale, issued in the above entitled cause, by the clerk of the Common Pleas Court of County, Ohio, and to me directed and delivered, I will offer for sale at public auction, at the front door of the court house, in Ohio, on , 19 , between and o'clock M. of said day, the following described .lands and tenements, to-wit: (Here insert description of real estate.) First parcel appraised at $ . Second parcel appraised at $- Terms of sale, cash. W. S. R., Sheriff. 19 . A. C. R. Deputy. No. 45. Sheriff's return of his sale. The State of Ohio, County, ss.: Received this writ this day of , 19 , at o'clock m., and pursuant to its command, I did, on the day of . 19 , summon G. A. B., I. H. and H. G. J., three disin- terested freeholders, residents of said County, who were by me duly sworn to view and appraise the land and tenements in said writ described. MERWINE ON REAL ACTIONS. 134 And afterward, on the day of , 19 , said ap- praisers returned to nie, under their hands that they did, upon actual view of the premises estimate and appraise the real value in money of the .same, as follows: First parcel at $— — '•, second parcel at $ . A certified copy of said appraisal 1 forthwith deposited in the office of the clerk of the Court of Common Pleas of said County. And on the day of , 19 , I caused to he advertised in the (a newspaper printed and published and of general circulation in said County) said lands and tenements to be sold ;it public auction at the front door of the court house of said county, in the city of , on the day of , 19 , between the hours of and o'clock m. of said day. And having advertised the said lands and tenements for more than thirty days previous to the day of sale, to-wit: consecutive weeks, I did, in pursuance to said notice, on said day of , 19 , at the time and place above mentioned, proceed to offer said lands and tenements at public sale, at the front door of said court house, and then and there came N. R. II., who bid the sum of $ for said property, and said sum being not less than two-thirds of the appraised value thereof, and said N. R. H. being the highest and bed bidder therefor, 1 then and there publicly sold- and struck off said lands and tenements to him for the sum of $ . II. S. R., Sheriff. By A. C. R., Deputy. No. 46. Confirmation of sale and order for deed and distri- bution. B. T. Co., Plaintiff, vs. No. . I. YV. G., E. M. G. and .1. G. H„ />< f{ ndants. This day this cause came on for hearing upon the motion to confirm the sale made herein, and thereupon the order of sale, proceedings there- under and the return thereof were produced to the court. On consideration whereof the court finds the same to be regular and strictly according to law and the said proceedings and sale are hereby approved and confirmed. The court further finds that the purchaser of said premise-., N. R. 11., has fully paid the judgment of the plaintiff herein, and that a convey- ance should be made to said purchaser subject to the mortgage set forth in the cross-petition of the defendant, .1. II. G., and subject to the life estate of E. M. i;. H i- therefore hereby ordered that the sheriff shall make and exe- cute to -aid purchaser, >-'. \\. II., a good and sufficient deed of the real estate described in the petition, and being the following described real estate, to-wit: (Here insert description of real estate.) I lie court finds that the said judgment of the plaintiff so paid and satisfied by the said purchaser amounts to the sum of $ , and the amount, due and owing upon the said mortgage to J. II. G. $ . The L35 FORMS. coats herein taxed, which the said purchaser has paid, amount to the- sum of $ . The court further finds that there remains of the purchase price so paid by the snid N. R. II. the sum of $ , which the said sheriff is hereby ordered to pay tit the said E. W. G. No. 47. Sheriff's deed in such case. To nil persons to whom these presents co»ie. Greeting: Whereas, On the day of , 190 — , plaintiff filed its certain petition, and then and there commenced a civil action in the Court of Common Pleas in County, Ohio, against the said .1. W. G. et al , and numbered on the docket of said court as Case No. . praying therein, among other things, for a judgment aglEinst the defendants in said case; and. Whereas, Such proceedings were had in said action that, by the consideration and judgment of said court on the day of , 19 . in the term. 19 , the said , plaintiff, recov- ered a judgment against the said L. F. R. and 1. W. G. in the sum $ ami costs of suit; and, Whebeas, Said judgment of said court remaining in part unpaid. an execution was issued out of said court directed to the sheriff of County, and said sheriff, under said execution, having levied the same o:i the real estate hereafter described, and having returned the same for further proceedings; and. WHEREAS, Afterwards, on the day of , plaintiff filed its petition in County, the county wherein said levy was made afore- said, and then and there commenced a civil action in the I ourt of Com- mon Pleas in County, Ohio, against the said J. W. G. et al., and numbered on the docket of said court as case No. , pray in ; therein, among other things, tin- sale of said real estate hereinafter de- scribed, and Whereas, Such proceedings were had in said action that, by the con- sideration and judgment of -aid court on the day of , 19 , in the term of 19 . that said plaintiff recovered a judgment against said I. W. G. in said court in the sura of $ . and the#COSts of suit, and Whereas, It was then and there further ordered, adjudged and decreed by -aid court in said action that, unless the said defendant 1. W. G. should pay the costs of -aid -nit. and the said plaintiff the amount •■> found due. within days from the entry of said decree, said premis i should lie sold, and an order of sale should issue therefor to the sheriff of said county, commanding him that be should cause the lands and tene- ment- in said petition and order mentioned and hereafter described to he appraised, advertised ami sold according to law. and return his proceed- ings to said court ; and Whereas, Afterwards, on the day of , 19 , in pursu- ance of said orders and judgment of said conn and thereon, an order of sale issued from said court in said cause, directed to said sheriff MERWINE ON REAL ACTIONS. 136 of said county, commanding him to execute said order, and in all things to be governed by the provisions of the statute in such case made and provided, and the said order, with his proceedings thereon, he should make due return; and Whereas, , sheriff as aforesaid, having caused said prem- ises to be appraised and a copy of the appraisement to lie duly filed in the office of the clerk of said court, and having advertised the time and place of selling the same in , a newspaper printed and of general circu- lation in said county for a period of days prior to the day of sale, and otherwise complied with said orders and the provisions of the statute in such case made and provided, did, on the day of , 19 , at the door of the court house in said county, at o'clock — M. of said day, expose to sale at public auction the premises hereafter men- tioned, and thereupon, having bid for said premises the sum of $ , and the said sum being the highest and best bid offered for the same, and being more than two-thirds of the appraised value thereof, the said premises were then and there struck off to him, the said , the purchaser, for the sum above mentioned; and Whereas, The said court, at its term, 19 , having exam- ined the proceedings aforesaid in the premises under said orders of sale, and, being satisfied that the sale aforesaid had been made in all respects in pursuance to said judgment and order of sale, and in accordance with the provisions and requisites of the statute regulating such sale, did order that such sale should be confirmed, and that said sheriff of County, Ohio, should convey said real estate by deed in fee simple to the purchaser, . Now, Know Ye, That I, the said , sheriff of County, Ohio, as aforesaid, by virtue of said judgment, order of sale, and confirma- tion, and of the statute for such cases made and provided, and for and in consideration of said premises herein, and the sum of $ , which I acknowledge to have received from the purchaser above named, do hereby grant, sell and convey unto him, the said , his heirs and assigns forever, the following real estate, situated in the County, Stale of Ohio, and in , and bounded and described as follows: (Here insert description of real estate), together with the privileges and appur- tenances thereunto belonging, and all the right, title and interest of the said I. W. G., and of all the other parties of said suit on, in and to the same. To Have and to Hold the premises aforesaid unto the said , his heirs and assigns forever, as fully and completely as I, the said sheriff of said County. Ohio, by virtue of said judgment, order of sale, sale and contirmation, and of the statute made and provided for such cases might and should sell and convey the same. I>: Testimony WHEEEOF, I have hereunto set my hand and seal this day of , 19 . , Sheriff of County, Ohio. Signed, sealed and acknowledged in the presence of: 137 FORMS. State of Ohio, County, ss. : Personally appeared before me, a notary public in and for said county, the above named , sheriff of County, Ohio, the grantor in the above deed of conveyance, who acknowledged the signing and sealing of the same to be his voluntary act and deed for the uses and purooses therein mentioned. In Witness Whereof, I have hereunto set my hand and seal this day of , 19 . Notary Public within and for said County, Ohio. CHAPTER III. SALE OF REAL ESTATE UNDER WRIT OF ATTACHMENT. SECTION. 141. General principles. 142. An auxiliary remedy allowed only after an action is be- gun. The purpose of the writ. 143. When an action is deemed commenced. 144. Cross-petitioner is entitled to the writ. 145. Jurisdiction. Entry of ap- pearance. Service of sum- mons. 1 4 1 J . Should summons l>e issued when defendant is a non- resident of the State? 147. When service may be had by publication on non-resident defendants in attachment proceedings. 148. Affidavit necessary in such cases. 140. How publication is made. 150. When service is complete and how proven. LSI. When personal service may be had out of the State. 152. Grounds for the attachment. 153. When the defendant is a for- eign corporation. 154. When a defendant is a non- resident of the State. 155. Has absconded with intent to defraud his creditors. 156. Fraudulenl disposition of property. 157. When the obligation lias 1 n fraudulently or criminally incurred. 158. Requisites of the affidavit in attachment . 159. Filing of the all'nlavit is juris dictional. The grounds of the attachment I" be stated in the affida\ it t berefor. SECTION. 160. The kind of actions in which the writ of attachment may issue. 161. Attachment orders may issue to different counties. 162. Bond required before writ i< issued. 163. The order of attachment, its command and to whan di- rected. 164. When attachment orders are returnable. 165. Order in which several at- tachment orders executed, ltiti. The manner in which the or- der of attachment is exe- cuted. 167. When property attached may be delivered to the per- son with whom found. 168. Several attachments may be made by the same officer. 169. How subsequent attachments may be made. 170. Oilicer's return of the writ and the time when the prop- erty is bound. 171. How an attachment may be discharged and bond for same. Bond where action is brought for causing death. 172. Undertaking may he exe- cuted in vacation. 173. Effect of judgment for de- fendant in attachment. 174. Proceedings after judgment for plaintiff. 17~>. When questions of priority of several attachments may be ri ferred. 176. Death of defendant <\c.i><. not end attachment proceedings. 177. <'aM's iii which plaint ill' may he required to jrive addi- tional security. 138 139 REAL ESTATE UNDER ATTACHMENT. §141 SECTION. 178. Attachment discharged l>y motion for that purpose, and evidence in such cases. 179. Proceedings in error to re- verse, vacate or modify or- der discharging attachment. 180. Error proceedings to reverse, order discharging attach- ment. Bond in such cases. 181. When administrator or execu- tor may file such petition in error. 182. An attachment may he had hefore debt is due. Grounds for such attachment. SECTION. is:;. Who may grant the affidavit therefor. 1S4. Action to lie dismissed if writ is refused. IS."). Order must specify amount for which writ is allowed. lSti. Bond required in sueli cases. 187. Such actions to be continued until the claim is due. 1S8. How far other provisions of attachment law applicable. 189. How to proceed before a jus- tice of the peace when de- fendant has no personal property, but owns real es- tate. Sec. 141. General principles. The purpose of this book necessarily makes the subject treated in this chapter quite brief. Only so much of the law of attach- ment in this State will be discussed as is necessary to disclose the essential requisites in attachment proceedings to give a good title to real estate bought at sheriff's sales in such actions. The law as to the seizure of real and personal property by writ of attachment is so interwoven that much of the law as to the latter must be given with the former, but about the only difference between them is the manner of the disposition of each by the officers and agents of the court. The subject of the seizure of real estate by the writ of attachment is governed and controlled by legislative enactment, and being so controlled, we must look to the statutes on this subject for the source of authority to the court and its officers for their action in such proceedings. 1 Being purely statutory, the practitioner in such proceedings must pursue the terms of the statute, or the court will not acquire jurisdiction to seize hold of the real estate and sell it under the writ. This remedy by attachment, being contrary to the course of the common law, cannot be extended beyond the strict letter of the statute authorizing it; for it has always been the policy of our courts to require the party, pursuing an extraordinar" ' The Buckeye Pipe Line Co. v. Fee. G2 0. S. 550. "Proceedings in attachment are not, it is true, ac- cording to the course of the common law. They are, under our system, a proceeding in rem intended to subject the property of a debtor to the payment of his debts." Lessee etc., v. Loring, 7 O. 425. §§1-42, 1-13 MERWINE ON REAL ACTIONS. 140 remedy authorized by statute, to make out a clear case for judi- cial interference. 2 Sec. 142. An auxiliary remedy allowed only after an action is begun — The purpose of the writ. The writ of attachment is an auxiliary remedy, to be issued or allowed only after an action has been begun, and it has been said of it that it is in the nature of an execution in advance. The function of the writ is to seize hold of the real estate in advance of the hearing of the case and to hold it in court until a final judgment is had in the case. It follows, then, as a mat- ter of course, that if the judgment of the court is against the claim of the plaintiff, the whole proceedings fail, but that if the judgment in the case is given to plaintiff on the issues of the case, then so much of the real estate, so seized under the writ, is sold as will be necessary to satisfy the amount of the judg- ment. 3 Sec. 143. When an action is deemed commenced. In an action where the order of attachment was issued upon the filing of an affidavit and the giving of a bond, the order was issued and served on the defendant, and thereafter on the same 2 Egan v. Lumsden, 2 Disn. 1'68; Carty v. Fenstermacher, 14 O. S. Taylor v. McDonald, 4 0. 155; Col- 457; Ward v. Howard, 12 O. S. 158. well, Admr., v. Bank, 2 U. 221); In Leebman v. Ashbacker, 36 0. S. Hoyman v. Beverstock, 8 «C. «C. 477; '94, it was held that the real estate Market National Bank v. Pierson, 3 seized is in the custody of the law \Y. L. J. 132. In this connection it ""til discharged by one of the modes was said by the .court in Union, etc., prescribed. If judgment is rendered v. Packard et al., 1 C. C. 78, and for the plaintiff, it shall be satis- approved by the court in Hoyman Aed out of the property seized, and v. Beverstock et al., "8 C. «C. 474 : if there is not sufficient for that "An attachment is an extreme rem- purpose, execution may, where de- edy, and the attaching creditor must fendant has been personally served bring his case within the letter of or his appearance entered in any of the law to get 'the strong arm < ,' the modes provided by law, issue the court' to take the property of as in other cases to collect the the debtor from his possession be- residue of the judgment. It is a fore judgment." proceeding in rem-. Buckeye, etc., sRempe v. Haven-, (IS 0. S. 113; v. Fee, 62 O. S. 543; see also Siebert v. Switzer, ::."> 0. S. 661; Crumb v. Treuber. 2 Cleve. L. Rep. Vallcttc v. Ky.. 2 Hand. 1; Egan v. 257; Paine v. Moorland. 15 O. 436; Lumsden, 2 Disn. 168; Central, Cohr-un v. Loring, 17 0. 409. etc., v. Lagenbach, 1 N. P. 124; 141 REAL ESTATE UNDER ATTACHMENT. §144 day the petition was filed, and upon such state of facts the court held that the attachment was issued without authority of law, and, as against other attaching lienholders, gave no priority. The statute does not authorize an attachment except in an action, and the clerk of the court has no authority to issue the order of attachment until an action is brought, and the relation of the piaintiff and defendant is established in the case/ Sec. 144. Cross-petitioner is entitled to the writ. While the statute reads that the plaintiff may have the writ, yet a nisi prius court has held in a mandamus case, seeking to compel the clerk to issue the writ, that a cross-petitioner defend- ant was entitled to the writ. 5 4Seibert v. Switzer, 35 0. S. 661. It was held in this case: "An ac- tion is commenced or brought, with- in the meaning of §§ 192 and 193, by the filing of a petition and caus- ing a summons to issue thereon. Code, § 55. Until then there is no action in which an attachment can issue. It is a remedy auxiliary to an action for a money judgment. It is a writ in aid of the plaintiff, granted in certain cases before he could have execution. Without an action there is no foundation for this auxiliary proceeding. Nor do we think that the subsequent com- mencement of an action, although on the same day, cures this defect. The order of attachment being is- sued by the clerk of the court be- fore action brought, was unauthor- ized and void, and the subsequent commencement of an action, al- though on the same day, could not vitalize it so as to give it priority over other valid liens. This con- clusion is supported by the follow- ing cases in point: Pope v. Hiber- nia Ins. Co., 24 Ohio St. 481; En- del v. Leibrock, 33 Ohio St. 254; Kerr v. Mount, 28 X. Y. 659; WafTer v. Goble, 53 Barb. 517; Kel- ley v. Strayer, 15 Hun, 97." And in Central, etc., v. Longabush, 1 N. P. 124, it was said: "No attach- ment can issue until a civil action is commenced bv the filing of a petition and causing a summons to issue thereon. The issuing of a summons is as important an ele- ment in the commencement of an action, as is the filing of a petition. A civil action must be commenced by filing in the office of the clerk of the proper court a petition and causing a summons to be issued thereon. Until an action is so com- menced, there is no action in which an attachment can issue. See also Stone v. Whittaker, 61 0. S. 194; Wherlin v. Macke, 15 W. L. B. 125; Mawieke v. Wolfe, 2 W. L. B. 87. See Xos. 48 and 49 for forms fir the petition and affidavit. 3 State ex rel. v. Hob.-on, 7 X. P. 187. In this latter case the court said: "This view is supported by the case of 40 0. S. 344, where a default judgment, taken against a plaintiff on cross-petition, was set aside for the reason that the judg- ment was taken prematurely, the plaintiff being entitled to the same length of time to answer the cross- petition that the defendant has to answer the petition. From analogy, if a plaintiff can be treated as a defendant, as in that case, the de- fendant can be treated as a plaintiff, and the attachment prayed for in this ease should issue." §§ 145-147 MERWINE ON REAL ACTIONS. 142 Sec. 145. Jurisdiction — Service of summons — Entry of ap- pearance. In order that a court in attachment eases, as in ail other eases, may have the power to sell real estate, there must be a service of legal process on the defendant, or his appearance must be entered in some manner. The defendant can enter his appear- ance by being present at the hearing with his counsel and par- ticipating in the trial, and the record of the case discloses such state of facts, 6 or by interposing a demurrer to the petition, 7 or coming into the case by motion, or otherwise objecting to the power of the court to hear the action." But the appearance of a defendant for the sole purpose of objecting to the jurisdiction of the court over his person is not such an entry of appearance as will give the court jurisdiction of the ease. 9 Sec. 146. Should a summons be issued when the defendant is a non-resident of the State? It has been held by some of the courts of this State that, where the defendant is a non-resident of the State, it is not necessary to issue a summons and have the same returned "not found" before the service can be had upon such non-resident by pub- lication. 10 And it has been held by other courts that, if in an attachment, case against a non-resident defendant, no summons is issued nor any affidavit filed to obtain service by publication, the court will not obtain any jurisdiction over either the person or property of the non-resident defendant, 13 Sec. 147. When service may be had by publication on non- resident defendants in attachment proceedings. Service may he had by publication in ;ill actions in which it- is sought by ;i provisional remedy to take or appropriate in any way the property of the defendant, when the defendant is a o Baltimore, etc., \. Goodman, ..- Rec. 14; Smith v. Whittlesy, 10 C. W. I.. I'.. 237. C 412. In Hcii.l.TM.n v. Stettner, " Vlyrr- V. Smith. -J'.l O. S. 120. :i] Kan. ."ill. the court s;iid that 8 Caldwell v. Burton. 7 X. I'. 525. the issuing of a summons and its o Elliot! \. Lowhead, 43 < ». S. return" on a non-residenl defendant 171. luil see Reich v. Pike, 8 X. I'. was "an absolute absurdity." 234-. Mawick v. Wolf, :: \V. I.. B. " Larwell v. Stevenson, 19 C. 0. 4.">!i. 441). affirmed without report in 6G Jo Pratt v. Sherman, 1 (lev.. L. 0. S. 083. 143 REAL ESTATE UNDER ATTACHMENT. §§ 148-151 foreign corporation, or a non-resident of this State, or the defend- ant 's place of residence cannot be ascertained. 12 Where an action is begun for the recovery of money in this State, jurisdiction of the defendant may be acquired by service by publication, where the action is brought against a non-resident of the State having property in this State, or to be taken by process of attachment. 13 Sec. 148. Affidavit necessary before service by publication. Before service by publication can be made, an affidavit must be filed that service of summons cannot be had within this State on the defendant to be served by publication, and that the case is one of those mentioned in section five thousand and forty-five, Revised Statutes, and when such affidavit is filed the party may proceed to make service by publication. 14 Sec. 149. Kow publication is made. The publication must be made for six consecutive weeks in a newspaper printed in the county where the petition is filed, or, if there is no newspaper printed in the county, then in a news- paper printed in this State and of general circulation in such county. If it be made in a daily newspaper one insertion a week will be sufficient, and it must contain a summary state- ment of the object and prayer of the petition, mention the court wherein it is filed, and notify the person or persons thus to be served when they are required to answer. 15 Sec. 150. When service is complete and how proven. Service by publication shall be deemed complete at the date of the last publication, when made in the manner and for the time prescribed in the preceding sections, and such service must be proven by affidavit. 10 Sec. 151. When personal service may be had out of the State. When service may be made by publication, personal service of a copy of the summons and petition may be made out of the State, and such service must be proved by affidavit. 17 12 Gen'l Code, §11292 (R. S. §5047). See Xo. 53 ei seq., for § 5045 ) . forms. is National Bank, etc., v. Railway, " Gen'l Code, §11296 (R. S. 21 O. ,S. 221, §5048). 'See No. 54 for form of 14 Gen'l Code, §11293 (R. S. affidavit. §5046). See No. 53 for form. it Gen'l Code, §11297 (R. B. 15 Gen'l Code, §11295 (R. S. §5049). § 152 MERWINE ON REAL ACTIONS. 144 Sec. 152. Grounds for the attachment. In order that the court may have jurisdiction to issue the writ of attachment, there must be filed in the court a petition against a defendant, or defendants, stating the cause of action, and there must also be filed an affidavit showing one or more of the ten grounds set forth in the statute authorizing the writ of attach- ment. The statute setting forth the grounds of attachment pro- vides that in all civil actions for the recovery of money the plaintiff may, at or after the commencement thereof, have an attachment against the property of the defendant upon the grounds herein stated: (a) When the defendant, or one of sev- eral defendants, is a foreign corporation, except as provided by an act entitled, "An act to further supplement section one hun- dred and forty-eight of the Revised Statutes," passed May 16, 1894 (91 0. L. 272), and except as provided by an act entitled, ;< An act to amend section one of an act," etc., passed May 19, 1894 (91 0. L. 355), or a non-resident of this State, or (b) has absconded with intent to defraud his creditors, or (c) has left the county of his residence to avoid the service of a summons, or (d) so conceals himself that a summons cannot be served upon him, or (e) is about to remove his property, or a part thereof, out of the jurisdiction of the court with the intent to defraud his creditors, or (f) is about to convert his property or a part thereof into money for the purpose of placing it beyond the reach of his creditors, or (g) has property or rights in action which he conceals, or (h) has assigned, removed, disposed of or is about to dispose of his property or a part thereof with the intent to defraud his creditors, or (i) has fraudulently or criminally contracted the debt or incurred the obligations for which suit is about to be or has been brought, or (j) that the claim is for work or labor or for necessaries. But an attachment shall not be granted on the ground that the defendant is a foreign corporation or a non-resident of this State, for any claim other than a debt or demand arising upon con- tract, jnd<_nnont or decree, or for causing death or a personal injury by a negligent or wrongful act. 18 '^Opn'I Code, §11819 (R. S. in attachment, No. 51 for the order §5521). See No. 54 for affidavit of attachment. 145 REM, ESTATE UNDEli ATTACHMENT. §§ 153, 154 Sec. 153. When the defendant is a foreign corporatioi:. The first ground for the issuing of an attachment in a civil action for the recovery of money is that when the defendant, or one of several defendants is a foreign corporation, except as pro- vided by an act entitled "An act to further supplement section one hundred and forty-eight of the Revised Statutes," passed May 16, 1894 (91 O. L. 217), and except as provided by an act entitled "An act to amend section one of an act," etc., passed May 19, 1894 (91 O. L. 355). The acts mentioned in the above exceptions now are §§ 148c (Gen'l Code, §§ 183 to 192 inclusive) and USd of the Revised Statutes (Gen'l Code, §§ 178 to 186 inclusive), and these sec- tions relate to the requirements of the law as to foreign cor- porations before they can do business in this State. These sections relate, among other things, to the tiling of certain certificates with the Secretary of State, and the designation of an agent of the company in this State upon whom legal process can be served. The evident purpose of these exceptions is to place all of the foreign corporations that have complied with all of the laws of this State on an equality with our domestic corporations. It has been held that where a foreign corporation begins pro- ceedings for the appointment of a receiver, and deeds its prop- erty to such receiver, a creditor resident in this State, who files his claim in that court, is estopped from taking proceedings in attachment to subject other property in the State belonging to the company to the payment of his claim. 19 Sec. 154. When a defendant is a non-resident of the State. The next ground authorizing the writ of attachment is when tin- defendant, or one of several defendants, is a non-resident of this State. For a construction of the term resident, or residence, as used in this statute, we cannot turn to the definition of the word "residence" as used with reference to the qualification of a voter. In such cases the word ' ' residence ' ' is used synonymously with "domicile." When the word residence is applied to the attachment laws of this State, it is not convertible with domicile. This is upon the theory that for the time being a party's resi- 19 Price v. Farriam, 7 N. P. 189. §154 MERWINE CN REAL ACTIONS. 146 dence may be in one place and his domicile in another. It has been held by onr courts that, "It is the actual residence of the debtor, and not his domicile, that determines hio status in an attachment proceeding begun in the county where his property attached is situated; and if he has no abode or home within the State where process can be served on him, his property is subject to attachment, notwithstanding he may not have acquired a resi- dence elsewhere." 20 When a party left this State with his family for another State, with the intention of returning in case he could com- promise with his creditors there, or to remain if he could not do so and could get employment, neither of which happened, and in the meantime his real estate in this State was seized by writ of attachment and he shortly afterwards left for a third State, it was held that these facts did not constitute him a non-resident of the State, the court holding that mere non-residence for any length of time, unless aided by some unequivocal act showing an intention not to return, will not cause the loss of domicile here. 21 And absence from one's home for years, where the intention is to return, if, in the meanwhile, the intention to return is not destroyed by some unequivocal act, signifying a purpose to change the domicile, does not defeat the right to claim the former residence as if it had never been interrupted by an absence. 22 20 Thompson v. Ogden, 3 C. €. N. S. 51. The facts and holding in this ease were these: T. White, a res- ident of Ohio, received an appoint- ment for an indefinite term in one of the departments of the govern- ment in Wa thington. He removed there with his familv. and for twenty years lias continued t:> live there, but lias been in the habit of returning to Ohio to vol y at elec li.m-.. Held: That hi- property located in (thin is subject to at- tachment on the ground of non-res- idence. Sec also Keller v. Carr. 42 N. W. Rep. 2!>2: 4(1 Minn. 243; Carden v. Carden, 107 X. C. 214; L2 S. E. Rep. L97; Sturgeon v. Korte, ."{4 O. S. 525; Wheeler v. Cobb, 7.") >.'. C. 21; Weitkamp v. Loehr, 53 X. V. Supp. Ct. 83; Smith v. Dallon, 1 C. S. C. R. 151. citing the following from Drake on At- tachment. §58: "Domicile includes residence with intention to remain, while no length of residence with- out the intention of remaining, con- stitutes domicile." 23 Smith v. Dalton, 1 C. S. C. R. 150; [sham v. Gibbons, I Bradford, 69; Eaggart v. Morgan, 1 Seldom 122; Holmes v. Greene, 7 Gray, 200: Whitney v. Sherborn, 12 Al- len. Ill-, the matter of Thompson, 1 Wend. 45: Frost v. Brisbane, 1!) Wend. 14: Pfoutz v. Com ford, 36 Pa. St. 420. 22 Egan v. Levusden, etc., 2 Dis- ney, 168. 147 REAL ESTATE UNDER ATTACHMENT. § 155 An attachment may issue on the ground of non-residency when the defendant is a partnership of which all the members reside out of this State, the partnership being formed for the purpose of carrying on business here. And in an attachment against the property of such non-resident firm it may be sued by its company name, and service may be had by leaving a copy of the summons, with the indorsements thereon, at its usual place of business in this State.- 3 The court in Byer v. Schlupe, 51 O. S., 300, said: "It may perhaps be urged that although the individual partners com- posing a firm reside in another State, the partnership is to be deemed resident in a State where it has a 'usual place of doing business.' But the statute in prescribing the manner of service and return of summons, recognizes both a place of residence and a place of doing business. And the one is not to be regarded as identical with the other. A person or a number of persons may be domiciled or reside in one State and have an agent and place of doing business in another, even as a corporation domiciled within the State by which it was created may have its agent and a usual place of doing business in another. The principal action may exist, and the partnership, under the company name, may be brought into court throush actual service by leaving a copy of the summons at its usual place of business, while an auxiliary proceeding by attachment to secure the rights of creditors may be sustained by reason of the fact of non-residence, and when the attachment issues it is not necessary that there should be constructive service on the defendants by publication, but there may be service of process at the usual place of business which they have established in this State." 24 Sec. 155. Has absconded with intent to defraud his creditors. It is made a ground of attachment for a defendant to abscond with the intent to defraud his creditors. Under this provision of the statute it was held a ground, authorizing an attachment of partnership property for one partner to abscond, and the others to dispose of a part of the partnership property and to 23Byers v. Schlupe. 51 0. S. 280: affirmed in 56 0. S. 754: Dnbell 300; Gen'l Code. §8 11260. 11280 v. Looker, 1 Hand. 574: Taylor v. ("R. S. §§5011. 5042); Fitzgerald McDonald. 4 O. 140: Cowdon v. v. Grinwell, 64 Ta. 261. TTurford, 4 O. 133: Winchester v. z* See also Smith v. Hoover, 39 Pierson, 3 W. L. J. 131. O. IS. 249. Halliday v. Clun, 9 C. C. §156 MERWINE ON REAL. ACTiONS. 148 continue to dispose of the rest of it ; and an attachment may be laid on the firm property where one partner avoids service by process by absconding, and his co-partner, remaining in the pos- session of the stock of goods belonging to the firm, is insolvent. 25 Sec. 156. Fraudulent disposition of property. It is also made ground for issuing the writ of attachment for a defendant to be about to remove his property, or a part thereof, out of the jurisdiction of the court, with the intent to defraud his creditors. Such attachment cannot be maintained on the ground of the constructive fraudulent intent to dispose of or conceal property, 20 nor will the formation of a corporation and the transfer to it by a creditor of his property, in the absence of any fraudulent design, be sufficient, 27 nor a conveyance by a creditor, whose solvency is doubtful, to his wife, without con- sideration, made without intent to defraud, 28 nor will it be suffi- cient to authorize the issuance of the writ for a creditor to remove his property out of the county without any intent to defraud his creditors. 2 it is not sufficient ground to authorize the issuing of the writ for a debtor to pay off creditors preferentially, 30 nor that a debtor is hastening to pay off other debts. 31 In all of the cases where an attachment is asked under the 25 Sellen v. Chresfald, 1 Hand. 87. See No. 54 for form for the affidavit in attachment. The reason for the remedy, so peculiar, exclu- sive and summary, when one joint debtor can be proceeded against by attachment, when the other may be served by summons, would seem to warrant the conclusion that the joint property may be reached by process against one debtor only; and the analogy a Horded from the liability of all members of the firm, for the fraudulent act of either in the course of the partnership busi- ness, indicates that similar conduct on the pari of one partner might authorize an attachment under the (ode against all. In the one case the right is involved; in the other, the remedy merely." Ibid. Story on Partnership. §§109, 166; Collyer on Partnership, 3, chap, J, § 5, P, 293-304; Boardman v. Gore, 15 Mass. 335 ; Blair v. Broueley, 5 Hare. 542 (Eng. Ch.); Stone v. Marsh, 6 B. & C. 551; Locke v. Stearns, 1 Met. 562 ; Rapp v. La- tham, 2 B. & A. 795. 26 Hoyman v. Beverstock, 8 C. C. 473; Beitnian v. Mackenzie, 1 W. L. B. 272; Chamberlain v. Strong, 3 W. L. G. 2S1; Market National Bank -v. Bethel, 32 W. L. B. 135; Jefferson v. Pursell, 8 Bee. 744; Eeidenheimer v. Ogden, 1 Disney, 351. 27 Union v. Packard, 1 C. C. 76. ssMcFarlan v. Mills, 4 W. L. B. 1064. 28 McAllister v. Davy, 5 N. P. 274. so Morton v. Sterritt, 4 N. L. G. 132. 3i Morgan v. Hays, 10 W. L. J, 83. 149 REAL ESTATE UNDER ATTACHMENT. § 157 grounds of the statute now discussed, the practitioner in his affidavit for the attachment must bring himself strictly within the grounds set forth in the statute or the court will have no jurisdiction to hold the property seized, and in case where the attachment is sought for the reason that the defendant is about to abscond, or remove, or convert his property into money for the purpose of placing it beyond the reach of his creditors, or fraudulently and criminally contracted the obligation sued on, precise and definite allegations will be required, and both the letter and the spirit of the law be satisfied or the proceed- ings will be dismissed. 32 Sec. 157. When the obligation has been fraudulently or crim- inally incurred. It is still another ground for issuing a writ of attachment that the defendant has fraudulently or criminally contracted the debt or the obligation for which suit is about to be or has been brought. The writ of attachment will be issued when the defendant has fraudulently or criminally contracted the debt by creating a claim for unliquidated damages due plaintiff by assaulting and beating him; 33 it will be issued where the action is brought for false and fraudulent representations as to the value of prop- erty ; 34 and it will be issued upon the ground now under dis- cussion when the action is brought to recover money won by defendant b} T means of a gambling device, known as a slot machine. 35 The writ will not be allowed under the ground now being discussed, wdiere the action is brought to recover for the bite of a vicious dog harbored by defendant, 3 " nor for a cause of action arising from a malicious attachment. 37 nor for the con- version by an agent in another State of the proceeds of certain claims sent to him by a bank in this State for collection. 38 nor where the claim arises from a liability other than from a con- tract, 3 '-' nor in a case where the obligation was fraudulently in- curred on account of a debt not vet due. 40 32fJury v. Tannemvalri. IS 0. 3« Wintering v. Conigan, 36 W. L. 481. B. 86. 33Sturtevant v. Tuttle. 22 O. S. 37 Glidden v. Joy. 8 C. C. 157. HI- 3s Cleveland v. Ohio. 1 Disn. 469. s-i 'Shawnee v. Bank. 1 C. i I X. S. 39 lUd. •569. 40 Stone v. Banking Co., 8 C. C. 35 Wise v. Martin. 7 N. P. 660. 636. §§ 158, 159 MERWINE ON REAL ACTIONS. 150 Sec. 158. Requisites of the affidavit in attachment. An order of attachment shall be made by the clerk of the court in which the action is brought, in any case mentioned in Section 152 of this chapter, when there is filed in his office an affidavit of the plaintiff, his agent or attorney, showing : (a) The nature of the plaintiff's claim; (b) That it is just ; (c) The amount which the affiant believes the plaintiff ought to recover; and (d) The existence of any one of the grounds for attach- ment enumerated in Section 152 of this chapter. 41 Sec. 159. Filing- of the affidavit is jurisdictional — The grounds of the attachment to be stated in the affidavit therefor. The affidavit mentioned in the preceding paragraph is one of the prime essentials in validating the attachment proceedings. Not only must it be filed, but it must be just what the statute says it must be. It must also set forth definitely and precisely one or more of the grounds of the statute authorizing the writ of attachment. Indeed, if all of the other proceedings in the attachment ease are regular and the real estate is sold by order of the court to a purchaser who has paid full value for it, he will not get good title to the land if this affidavit has not been filed in the case, or, having been filed, it fails to show all of the four requirements of the statute as above indicated. In such a case our court of last resort said: "No affidavit was filed, and unless the petition can be looked to and found to supply this important omission, the writ was void and no jurisdiction was acquired by seizure of the land under it ; and if no valid seizure was made, no service by publica- tion could be made. * * * We think that the faot that there was not the requisite affidavit to authorize the issuing of the attachment renders all subsequent proeeedings under it void." 4 ^ UGen'l Tode. §11820 (R. S. affiant- is the agent or attorney. § .").',■_' 2 i . See No. 54 for form. Winchester v. Pierson, :? W. L. J. ■'■- Endel v. Leibrock, 33 O. S. 131. This faet may be shown by 207. The affidavit may be amended. evidence outside of the affidavit. Patterson v. Gulnare, 2 Disn. 505. Sutleff v. Shenago Rank. 1 W. L. The affidavit may he made by the \1. 214. An affidavit by an agent plaint ill', lii- agent or attornev. stating "that he is a direetor and White v. Stanley. 2!) O. S. 423. agent of plaintiff, a corporation The affidavit need not affirm that duly incorporated under the laws of 151 REAL ESTATE UNDER ATTACHMENT. §160 The grounds for the attachment may be set forth in the affidavit therefor, in the language of the statute, without a more particular statement of the facts to be alleged ; 43 but where the affidavit does not follow the precise language of the statute, it will be sufficient for the attachment affidavit if it contains language fully equivalent, or clearly showing the ground speci- fied or intended. 44 Sec. 160. The kind of actions in which the writ of attachment may issue. It is provided by the attachment law that the plaintiff may, at or after the commencement of a civil action, have the writ of attachment against the property of a defendant. 45 This provision of the statute extends the remedy to all actions for the recovery of money whether sounding in contract or in tort, and the attachment may be obtained, if the action be for Ohio." is sufficient. Shawnee v. Miller, 1 C. C. N. S. 509. Attor- ney may mean anyone who appears for another. Ward v. Ward, 20 C. C. 136. Personal knowledge of agent not essential. White v. Stan- ley. 29 O. S. 443. Where affidavit is made by attorney it need not show why it is not made by plain- tiff. Ibid. The affidavit may be made by a prochein ami. McDow- ell v. Nunis, 15 W. L. B. 359. An affidavit taken before plaintiff's at- torney is insufficient. Ward v. Ward, 20 C. C. 130. It is addressed to the clerk, who decides whether the writ shall is- sue. Cook v. Olds, etc., 19 C. C. 732. As to the nature of the claim it is sufficient to say. "Upon a book account for merchandise sold to de- fendant, amounting to $ ." Hoover v. Hosloge, 5 N. P. 90. As to allegation of stockholders' liabil- ity, see Northern v. Maumee, etc., 2 N. P. 260. It was held when the date of the note in the petition and the date of the note in the affidavit were different, that the affidavit was good. Orlop v. Schuler, 4 C. C. N". S. 611. See also on this subject Constable v. White, 1 Handy, 45. As to required allegations as to just- ness cf claim, see Endel v. Leibrock, 33 O. S. 254. As to the allegations as to the amount due, see Sleet v. Williams, 21 O. S. 82; Mansfield, etc., v. Post, 22 C. C. 732; Win- chester v. Pierson, 3 W. L. J. 131; Mansfield v. Post, 22 C. C. 644; Gen'l Code, S11S69 ( R. S. §5565). •43 Emmet v. Yeigh, 12 O. S. 335; Harrison v. King, 9 O. S. 388 ; Shaw- nee v. Miller, 1 C. C. N. S. 569; Bullock v. Mitchell, 16 W. L. B. 354; Gans v. Thompson, 11 O. S. 579. 44 Creaser v. Young, 31 O. S. 57. As to the allegations of assault and battery in the attachment affidavit, see Ibid; Kirk v. Whittaker, 22 O. S. 115; Sturtevant v. Tuttle, 22 0. S. Ill; Smith v. Pabst, 1 Iddings, T. R. D. 10S. Statement of mere belief insufficient. Garner v. White, 23 O. S. 192; McLane v. Colburn. 2 X. P. X. S. 257; Dunlevy v. Schwartz, 17 O. S. 640. Improper to state grounds alternatively. Rogers v. Ellis, 1 Dim. 1: Schatz- man v. Stump, 7 W. L. B. 334; Brownell v. Colbath, 13 W. L. B. 35. « Gen'l Code, §11819 (R. S. §5521). § 161 MEKWINE ON REAL ACTIONS. 152 the recovery of money, though not for a demand arising upon a contract, judgment or decree. 40 The writ of attachment may issue, in implied contracts, where there are tortious elements that have been waived; 47 in an equitable action brought to recover money; 48 in an action for specific relief and also for the recovery of money; 49 in an action by one partner against another for a general balance on settle- ment ; no and in an action upon a judgment of a justice of the peace, the ground of the attachment being that the defendant has made a fraudulent disposition of his property. 51 There is a further provision of the attachment statute re- quiring that an attachment shall not be granted on the ground that the defendant is a foreign corporation or a non-resident of the State, for any claim other than debt or a demand arising upon a contract, judgment or decree, or for causing death or a personal injury, by negligent or wrongful act. 52 Sec. 161. Attachment orders may issue to different counties. Orders of attachment may be issued to the sheriffs of different counties; and several of them may, at the option of the plaintiff, be issued at the same time, or in succession; but such only as have been executed are to be taxed in the costs, unless otherwise directed by the court. 53 Under this provision of the attachment statute, an action for damages for a breach of promise to marry, the writ will issue against a non-resident defendant ; r ' 4 so in an action against a railroad company for an injury to one of its passengers on account of its negligence; 55 so in an action for damages for a breach of contract to sell real estate to plaintiff;"'" so in an action for a commission for selling real estate, the commission being all that the agent should have above a certain stipulated "Ward v. Howard, 12 0. S. 158; §5525). See No. 51 for form for Hoover v. Gibson, 24 0. S. 389. order of attachment. "7 Dean v. Yates, 22 0. S. 388. m Albert v. Armstrong, 14 C. C. "Gofle v. Howard, 12 0. S. 165. 290; but see Conley v. Creeghton, *«IMd. 2 W. L. I'.. 4; Caldwell v. Spellman, bo Ibid. 7 W. 1.. J. 7: Dabney v. Pappen- bi Brooke v. Todd, 1 Hand. 169. hemer. 20 C. C. 707. BsGenl Code, §1181!) (R. S. 55 Railroad v. Peoples, 31 0. S. §5521). 537. osGen'i Code §11820 (R. S. »« Landes v. Case, 5 N. P. 360. 153 REAL ESTATE UNDEK ATTACHMENT. §§ 162-165 amount, 57 and so in an action, tke surety may, on behalf of a creditor, sustain the attachment against the principal debtor. Sec. 162. Bond required before writ is issued. When the ground of the attachment is that the defendant is a foreign corporation, or a non-resident of this State, the order of attachment may be issued without an undertaking; but in all other cases the order cannot be issued by the clerk until there is executed in his office, by sufficient surety of the plaintiff, to be approved by the clerk, an undertaking, in a sum equal to double the amount of the plaintiff's claim, to the effect that the plaintiff will pay the defendant all damages which he may sustain by reason of the attachment if the order prove to have been wrong- fully obtained. 58 Sec. 163. The order of attachment, its command and to whom directed. The order of attachment must be directed and delivered to the sheriff, and it must require him to attach the lands, teneme its, etc., and effects of the defendant, in his county, not exempt by law from being applied to the payment of plaintiff's claim or so much thereof as will satisfy the plaintiff's claim, to be stated in the order as in the affidavit, and the probable costs of the action, not exceeding fifty dollars. 59 Sec. 164. When attachment orders are returnable. The return day of the order of attachment, when the order is issued at the commencement of the action, is the same as of that of the summons ; when issued afterwards it will be twenty days after it is issued." Sec. 165. Order in which several attachment orders executed. When there are several orders of attachment against the same defendant they must be executed in the order in which they were received by the sheriff. 61 sJAmmen v. Morris, 2 W. L. B. ™ On'l Code, §11824 (R. S. 94. §5526). 5*Gen'l Code, §11821 (R. S. « Gen'l Code, §11825 (R. S. § 5523.) See No. 50 for form. § 5527). 69 Gen'l Code §11822 (R. S. §5524). §§ 166-168 MERWINE ON REAL ACTIONS. 154 Sec. 166. The manner in which the order of attachment is executed. The sheriff is required to execute the order of attachment without delay; he is required to go to the place where the de- fendant's property is and there, in the presence of two free- holders of the county, declare, that by virtue of the order, he attaches the property at the suit of the plaintiff; the officer, with the freeholders, who must be first sworn by the officer, are required to make a true inventory and appraisement of all the property attached, which must be signed by the officer and freeholders and returned with the order; when the property attached is real property, the officer must leave with the occupant thereof, or if there fs no occupant, in a conspicuous place thereon, a copy of the order. 62 Sec. 167. When the property attached may be delivered to the person with whom found. It is the duty of the sheriff to deliver the property attached to the person in whose possesion it was found, upon the execu- tion by such person, in the presence of the sheriff, of an under- taking to the plaintiff with sufficient surety, resident in the county, to the effect that the parties to the same are bound in double the appraised value of the property, that the property, or its appraised value in money, will be forthcoming to answer the judgment of the court in the action ; but if it appear to the court that any part of said property has been lost or destroyed by unavoidable accident the value thereof shall be remitted to the person so bound. 03 Sec. 168. Several attachments may be made by the same officer. Different attachments of the same property may be made by thf same officer; and the one inventory and appraisement will be sufficient, and it will not be necessary to return the same with more than one order. 64 szGen'l Code, § 11826 (R. S. 64Gen'l Code, §11834 (R. S. §5528). §5535). esGen'l Code, §11827 ill. S. § 552!) ) . 155 REAL ESTATE UNDER ATTACHMENT. §§ 169-172 Sec. 169. How subsequent attachments may be made. When the property is under attachment, attachments on the same under subsequent orders are required to be made as follows: If it is real property, it must be attached in the manner pre- scribed for executing attachments. 65 Sec. 170. Officer's return of the writ and the time when the property is bound. The officer must return upon every order of attachment what he has done under it, and the return must show the property attached and the time it was attached; and the officer must return with the order all undertaking given under it; and the order of attachment will bind the property attached from the time of service. 66 Sec. 171. How an attachment may be discharged and bond for same — Bond where action is brought for causing death. If the defendant, or other person on his behalf, at any time before judgment, cause an undertaking to be executed to the plaintiff, by sufficient surety resident in the county, to be approved by the court, in double the amount of the plaintiff's claim as stated in his affidavit, to the effect that the defendant shall perform the judgment of the court, the attachment shall be discharged, and restitution made of any property taken under it, or the proceeds thereof; and such undertaking shall also dis- charge the liability of a garnishee in the action, for any property of the defendant in his hands; provided that, when plaintiff's claim is for causing death or a personal injury by a negligent or wrongful act, the undertaking required shall be in such amount as shall be fixed by the court where the action is pend- ing, or a judge thereof, if application is made in vacation. 67 Sec. 172. An undertaking may be executed in vacation. The undertaking mentioned in the preceding paragraph may, in vacation, be executed in the presence of the officer having the order of attachment in his hands, or, after the return of the order, before the clerk, with the same effect as if executed in esGen'l Code, §11835 (R. S. (R. S. § 5537 and § 5538.) See No. §5536). 52 for form for this writ. eeGen'l Code, §11836, § 11837 <* Gen'l Code, §11844 (R. S. §5545). §§ 173-176 MERWINE ON REAL ACTIONS. 156 court ; the sureties, in either ease, 10 oe approved by the officer before whom the undertaking is executed. 68 Sec. 173. Effect of judgment for defendant in attachment. If judgment in the action be rendered for defendant, the attachment will be discharged and the property attached, or its proceeds, will be returned to him. 69 Sec. 174. Proceedings after judgment for plaintiff. If judgment be rendered for the plaintiff it will be satisfied as follows: So much of the property remaining in the hands of the officer after applying the money arising from the sale of perishable property, and so much of the personal property, and lands and tenements, if any, whether held by legal or equitable title, as may be necessary to satisfy the judgment, must be sold by order of the court, under the same restrictions and regula- tions as if the same had been levied on by execution, and the money arising therefrom, with the amount that may be recovered from the garnishee, shall be applied to satisfy the judgment and costs; if there be not enough to satisfy the same, the judgment will stand, and execution may issue thereon for the residue, in all respects as in other cases ; and any surplus of the attached property, or its proceeds, must be returned to the defendant. 70 Sec. 175. When questions of priority of several attachments may be referred. When several attachments are executed on the same property, or the same person is made a garnishee by several parties, the court, on motion of any of the plaintiffs, may order a reference, to ascertain and report the amounts and priority of the several attachments. 71 Sec. 176. Death of defendant does not end attachment pro- ceedings. From the time of the issue of the order of the attachment, the raint will be deemed to have acquired jurisdiction and to esGen'l Code, §11840 (R. R. ?o Gen'l Code. ^ 1 1 855 (R. S. §5540). §5555). 6»Gen'l Code, 8 11854 (R. S. " Gen'l Code, §11859 (R. S. § 555-*.) See No. 63 for form for a § 5559). judgment in the action. 157 REAL ESTATE UNDER ATTACHMENT. §§ 177-179 have control of all subsequent proceedings under this chapter; and if, after the issue of the order, the defendant, being a person, die, or being a corporation, its charter expire by limita- tion, forfeiture or otherwise, the proceedings must be carried on ; but in all such cases, other than where the defendant was a foreign corporation, the legal representatives of the defendant must be made parties to the action. 72 Sec. 177. Cases in which plaintiff may be required to give additional surety. The defendant may, at any time before judgment, after reason- able notice to the plaintiff, move the court for additional surety on the part of the plaintiff, and if, on such motion, the court is satisfied that the surety in the plaintiff's undertaking has re- moved from the State, or is not sufficient for the amount of the undertaking, it may vacate the order of attachment and direct restitution of any property taken under it, unless, in a reason- able time, to be fixed by the court, sufficient surety be given by the plaintiff. 73 Sec. 178. Attachment discharged by motion for that purpose and evidence in such cases. The defendant may, at any time before judgment, upon reason- able notice to the plaintiff, move to discharge the attachment as to the whole or any part of the property attached ; the motion may be heard and decided by the court at any term or regular session thereof, or it may be made, heard and decided by any judge thereof in vacation ; and when the motion is made upon affidavits on the part of the defendant, or papers and evidence in the case, but not otherwise, the plaintiff may oppose the same by affidavits or other evidence, in addition to the evidence on which the order of attachment was made. 74 Sec. 179. Proceedings in error to reverse, vacate or modify order discharging attachment. A party to a suit affected by an order discharging or refusing to discharge an order of attachment, may file a petition in error "2Gen'l Code, §11860 (R. S. ™ Gen'l Code, §11862, §11863 §5560). (R. S. §5562 and §5563). 73Cen'l Code, §11861 (R. S. §5561). §§ 180, 181 MERWINE ON REAL ACTIONS. 158 # to reverse, vacate or modify the same, as in other cases; and the original action may proceed to trial and judgment in every respect, as though no petition in error had been prosecuted. 75 Sec. 180. Error proceedings to reverse order discharging at- tachment — Bond in such cases. When an order discharging an order of attachment is made, and the party affected thereby excepts thereto, it is the duty of the court or judge to fix the number of days, not to exceed thirty, in which such party may file his petition in error, and during which it must be filed, and the attached property held by the sheriff or other officer, the party who files the petition in error is required to give an undertaking to the adverse party, with surety to be approved by the clerk of the circuit court, in double the amount of the appraised value of the property attached, conditioned to pay such adverse party all the damages sustained by him in consequence of the filing of the same, in the event of the discharge of the order of attachment by the court in which the petition in error is filed, because the same was wrongfully obtained; and wdien such petition in error is filed, and an undertaking given, the sheriff, or other officer, shall continue to hold the property attached subject to the further order of the court, 76 Sec. 181. When personal representatives may file such peti- tion in error. If a, party who excepts to an order discharging or refusing to discharge an order of attachment, die within the time limited for filing his petition in error, the administrator or executor of such deceased party may, at any time within thirty days after bis appointment and qualification, file his petition in error and thereby become a party to the action, and shall not be required to give the undertaking required by the preceding paragraph; but i o such petition in error can be filed by an executor or administrator after one year from the time such order is made. 77 "OnM Code, §11864 R. S. §5565). §5567). §§ 186-189 MERWINE ON REAL ACTIONS. 160 Sec. 186. Bond required in such cases. The order of attachment, as granted by the court or judge, cannot be issued by the clerk until there is executed in his office such undertaking on the part of the plaintiff as is required by- Section 162 of this chapter. 82 Sec. 187. Such actions to be continued until the claim is due. The plaintiff in such action will not be given a judgment on his claim before it becomes due; and the proceedings on attach- ment may be conducted without delay. 83 Sec. 188. How far other provisions of attachment law ap- plicable. The proceedings authorized by the law of attachment for claims after due, shall govern attachments on claims not yet due, so far as the same are applicable. 8 S4 Sec. 189. How to proceed before a justice of the peace when defendant has no personal property but owns real estate. Tf in any case where an order of attachment has been issued by a justice of the peace, it appears from the return of the officer that the defendant has no personal property, but owns real estate, in the county, then the justice is required, at the request of the plaintiff, to forthwith certify his proceedings to the court of common pleas of the proper county, and thereupon the clerk of that court will docket the cause and the action pro- ceed as though it had originated there. 85 82Geh'l Code, §11872 (R. S. " Gen'l Code, §11874 (R. S. §556S). §5570). ssGen'l Code, §11873 (R. S. »5 Gen'l Code, §§10288, 10289 §55oU). (R. S- §bol4). FORMS. PROCEDURE BY WHICH REAL ESTATE IS SOLD UNDER ATTACHMENT. FORM. 48. 49. 50. 51. 52. 53. 54. 55. 56. o< 58. 59. The petition in such cases. The affidavit for attachment. The bond required where de- fendant is not a foreign cor- poration or a non-resident. The order of attachment is- sued by the clerk to the sheriff. The sheriff's return of the or- der of attachment and the appraisement thereunder. Affidavit for service by publi- cation upon non-resident de- fendants in attachment of real estate. Proof of publication of notice for non-resident defendant and the legal notice. Finding and approval of the court as to the correctness of the service by publica- tion. Judgment of the court and order of sale of attached property as upon execution. -Motion of defendant asking to set aside judgment and order of sale. Order of court sustaining mo- tion and granting defendant leave to answer. Answer of defendant to the petition of plaintiff in at- tachment. 161 FOEM 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. Reply of plaintiff to answer of defendant. Verdict of jury on trial of the issues in attachment proceedings. Motion of defendant to vacate and set aside verdict of jur\ r and for new trial in attachment. Judgments and oraer ~f the court overruling motion for new trial and order of sale. Order of sale in attachment proceedings issued by the clerk to the sheriff. Sheriff's return of his pro- ceedings under the order of sale. Proof of publication of sher- iff's sale and legal notice of such sale. Appraisement of real estate and oatli of appraisers. Entry confirming sale, order- ing distribution and the exe- cution and delivery of a deed to the purchaser at sheriff's sale of attached property. Sheriff's deed for real estate sold by him under attach- ment proceedings. MEKWINE ON REAL ACTIONS. 162 No. 48. Petition. Court of Common Pleas, County, Ohio D. C, Jr., Plaintiff, vs. Case Xo. G. S., Defendant. 1. First Cause of Action: The plaintiff says that this, his first cause of action, is founded on a promissory note of which the following is a copy, with all credits and in- dorsements thereon : $ . , 18 . months after date, for value received, 1 promise to pay to B. A. S., or order, dollars, with interest at per cent, per annum, payable yearly. G. S. The following are all the credits and indorsements thereon: ■ , 19 . Paid on the within note one year's interest ($ ). , 19 . Pay to the order of D. C, Jr., without recourse on me. B. A. K. On , 19 , said B. A. K., whose maiden name was B. A. S., demanded of said G. S. the payment of the amount due on said note. On the day of , 19 , the above note was duly assigned and transferred to said plaintiff' for a valuable consideration. There is due from said defendant to plaintiff on said note the sum of ($ ) dollars, which he claims, with interest on $ from the day of , 19 , and for which he asks judgment. 2. Second Cause of Action: The plaintiff" says this, his second cause of action, is founded on a promissory note of which the following is a copy, with all credits and in- dorsements thereon: $ . -, 18 . : year after date, for value received, T promise to pay B. A. S. K., or order, dollars, with interest at the rate of per cent, per annum. G. S. Credits: , 19 . Paid on within note, one year's interest ($ ). Indorsement: Pay to the order of D. C, Jr., without recourse on me. B. A. K. The above note was duly assigned and transferred to said plaintiff for a vahiable consideration. There is due from said defendant to plaintiff on said note ($ ) dollars, which he claims, with interest on $ from the day of , 19 , and for which he asks judgment. 163 FORMS. 3. Third Cause of Action: The plaintiff says this, his third cause of action, is founded on a prom- issory note of which the following is a copy, with all credits and indorse- ments thereon : $ . , 18 . year after date, for value received, I promise to pay B. A. S. K., or order, dollars, with interest at the rate of per cent. per annum. G. 8. The following are all the credits and indorsements thereon: , 10 . Paid on the within note, one year's interest ($ ). , 19— — . Pay to the order of D. ('., Jr., without recourse on me. B. A. K. The above note was duly assigned and transferred to said plaintiff for a valuable consideration. There is due from said defendant to plaintiff on said note dol- lars, which he claims, with interest on $ thereof from the day of , 19 , and for which he asks judgment. 4. Fourth Cause of Action: The plaintiff says this, his fourth cause of action, is founded on a prom- issory note of which the following is a copy, with all credits and indorse- ments thereon : $ . . 18 . year after date, for value received, I promise to pay B. A. S., or order, dollars, with interest at the rate of per cent, per annum, payable yearly. G. S. The following are all the credits and indorsements thereon: , 19 . Paid on the within note, one year's interest ($ ). Pay to the order of D. C, Jr., without recourse on me. B. A. K. The said B. A. K., whose maiden name was B. A. S., duly assigned and transferred said note to said plaintiff for a valuable consideration. There is due from said defendant to plaintiff on said note dollars, which he claims, with interest on $ from the day of , 19 , and for which he asks judgment. 5. Fifth Cause of Action: The plaintiff says that this, his fifth cause of action, is founded on a promissory note of which the following is a copy, with all credits and in- dorsements thereon: $ . . 18 . year after date, for value received, T promise to pay B. A. S., or order, dollars, with interest at the rate of per cent. per annum. G. S. MERWINE ON REAL ACTIONS. 164 The following are all the credits and indorsements thereon: 1 19 . Paid on the within note, one year's interest ($ ). Pay to the order of D. C, Jr., without recourse on me. B. A. K. The above note was duly assigned and transferred to said plaintiff for a valuable consideration. There is due from said defendant to plaintiff on said note — dol- lars, which he claims, with interest on $ from the day of , 19 , and for which he asks judgment. G. Sixth Cause of Action : The plaintiff says this, his sixth cause of action, is founded on a prom- issory note of which the following is a copy, with all credits and indorse- ments thereon: $ — . , 18 . year after date, for value received, I promise to pay B. A. S. K-, or order, dollars, with interest at the rate of per cent, per annum. G. S. , 19 . Paid on the within note, one year's interest ($ ). Pay to the order of D. C, Jr., without recourse on me. B. A. K. The above note was duly assigned and transferred to said plaintiff for a valuable consideration. There is due from said defendant to plaintiff on said note dol- lars, which he claims, with interest on $ from the day of , 19 , and for which he asks judgment. The plaintiff asks judgment against said defendant in the total sum of ($ ) dollars, with interest on $ from . 19 ; on $ from , 19 ; on $ from , 19 ; on $ from , 19 ; on $ from , 19 , and costs of this suit. D. C, Jr. Petition should be verified as in other cases. No. 49. The affidavit for attachment. D. C, Jr., Plaintiff, vs. Case No. . G. S., Defendant. State of Ohio, County, ss. : D. ('., Jr., the plaintiff herein, makes oath that he is commencing here- with a civil action in this court, against the defendant, G. S. ; that liis said action is for the recovery of money upon a debt arising upon contracts, to-wit: six promissory notes made by said defendant, payable to B. A. K., and by her assigned and transferred to plaintiff, the first of said notes oeing for $ and interest, the second for $ ■ and interest, the third for $ and interest, the fourth for $ and inter- est, the fifth for $ and interest, and the sixth for $ and interest. 165 FORMS. Said plaintiff" also makes oath that said claim is just; that the amount which plaintiff believes he ought to recover is the sum of dollars, with interest on $ from , 19 ; on $ from , 19 ; on $ from , 19 ; on $ from , 19 , and on $ from , 19 ; that said defendant, G. S., is a non-resident of this, the State of Ohio. The above named affiant, D. C, Jr., swears that the facts stated in the foregoing affidavit are true. D. C, Jr. Sworn to before me, and subscribed in my presence, this day of , 19 . F. B. M., Notary Public, County, Ohio. No. 50. The bond required when the defendant is not a foreign corporation or a non-resident. D. C, Jr., Plaintiff, vs. Case Ni. . G. S., Defendant. We, S. C, Jr., as principal, and and , as his sure- ties, do hereby undertake and bind ourselves, jointly and severally, unto G. S. in the sum of $ , to the effect that the said plaintiff', S. C., Jr., shall pay the defendant, G. S., all damages which he may sustain by reason of the attachment in this case, if the order prove to have been wrongfully obtained. In Witness Whereof, We have hereunto affixed our hands on this day of , 19 . , Principal, Surety, Surety. The above bond and the sureties thereon approved and accepted by me on this day of , 19 . , Clerk. No. 51. The order of attachment issued by the clerk to the sheriff. D. C, Jr., Plaintiff, vs. Case No. . G. S., Defendant. The State of Ohio. ■ County, ss.: To the Sheriff of County, Ohio: You are commanded to attach and safely keep the lands, tenements, goods, chattels, stocks or interest va stocks, rights, credits, moneys and effects of the defendant, G. S., in your county, not exempt by law from being applied to the payment of the claims of the plaintiff, D. C, Jr., or so much thereof as will satisfy his claim for $ , with interest on MERWINE ON REAL ACTIONS. 166 from , 19 ; on $ from , 19- on $ from , 19 ; on $ from , 19 , and on $ from , 19 , and also for dollars, the probable cost of tliis action. You will make due return of this order on the day of , in the year of our Lord one thousand nine hundred and . Witness my hand and the seal of said court this day of in the year of our Lord one thousand nine hundred and . J. M. W., Cleric, By J. R. B., Deputy. No. 52. The sheriff's return of the order of attachment and the appraisement thereunder. Office SherifT, County, Ohio, day of , in the year of our Lord one thousand nine hundred and . Received this order on the day of , in the year of our Lord one thousand nine hundred and , and, in obedience to the command thereof, I did, on the day of , in the year of our Lord one thousand nine hundred and , in the presence of A. P. 8. and E. C. B., two freeholders of said county, attach the property de- scribed in the Schedule marked "A," hereto attached and made part of this return; and having first administered to said freeholders the oath re- quired by law, to make a true inventory and appraisement of said prop- erty, we proceeded to make such inventory and appraisement, as will fully appear by reference to said Schedule "A." Schedule "A." We, G. J. K., Sheriff of County, and A. P. S. and E. C. B., two freeholders of said county, do truly inventory and appraise the prop- erty attached under the foregoing order, as the property of G. S., and hereinafter described as follows, viz: (Here insert description of real es- tate. ) Given under our hands this day of , in the year of our Lord one thousand nine hundred and . Sheriff. Appraisers. No. 53. Affidavit for service by publication upon non-resident defendant in attachment of real estate. D. C, Jr., Plaintiff, \ s. Case No. . G. S., Defendant. D. C., dr.. the above named plaintiff, makes solemn oatli that service of a summons cannot be made upon the said defendant, G. S., within this, 167 FORMS. the State of Ohio; that his residence is in the State of Virginia, county of , and his post-office address is ; that, in this action, an order of attachment has been duly issued and levied upon the prop- erty of the defendant, G. S., which property is sought by such proceedings in attachment to be appropriated toward the satisfaction of such judg- ment as the plaintiff may obtain against the said defendant, G. S., in this action. D. C, Jr. Sworn to before me and subscribed in mv presence this day of , 19 • J. M., llotary Public, County, Ohio. No. 54. Proof of publication of notice for non-resident defend- ant and the legal notice. State of Ohio, County, ss. : J. H. B., foreman of , a newspaper published and printed in County, Ohio, personally appeared and made oath that the attached printed advertisement was published six consecutive weeks in said newspaper, i. e., on , 19 ; and that said newspaper is of general circulation in said County. J. H. B. Subscribed and sworn to this day of . 19 . F. M. S., Notary Public in and for County. Legal Notice. D. C, Jr., Plaintiff, vs. Case No. . G. S., Defendant. G. S., the above named defendant, whose residence is County. Virginia, will take notice that on the day of , 19 , D. C, Jr., the plaintiff in said court, duly commenced a civil ac- tion against the defendant to recover against him the sum of dollars ($ ). with interest on $ from , 19- on $ from , 19 ; on $ from . 19- on $ from , 19 , and on $ from 19 , and costs of suit, upon six promissory notes made by said G. S. to B. A. K., and by her assigned to the plaintiff, said notes bearing date , 19 ; . 19 ; . 19 ; , 19 ; ■ 19 , respectively, with interest, the interest of each of said notes having been paid for one year, and for the aforesaid sum of $- and interest the plaintiff asks judgment against said G. S., as maker of said promissory notes. An order of attachment in said action has been duly issued against the following described real estate of said G. S. (Here describe real estate attached.) Said G. S. is required to answer the petition in said action on the day of , 19 , or judgment will be taken against him by de- fault for said amount, with interest and costs. D. C, Jr., Plaintiff. MERWINE ON REAL ACTIONS. 168 No. 55. Finding and approval of the court as to correctness of the service by publication. D. C, Jr., Plaintiff, vs. Case No. . G. S., Defendant. In this case the notice filed herein, requiring said G. S. to answer the petition, is found by the court to have been duly published for six consecu- tive weeks, as required by law, and such publication is hereby approved by the court. No. 56. Judgment of the court and order of sale of attached property as upon execution. D. C, Jr., Plaintiff, vs. Case No. . G. S., Defendant. This day this cause was submitted to the court by the plaintiff, and the court finds that the said defendant, G. S., has been duly served by publication, and has failed to answer or demur to the petition herein, and is in default, and the petition as to him is taken as confessed. The court further finds that there is due to the plaintiff from the defendant, on six causes of action set forth in plaintiff's petition, the total sum of ($ ) dollars. It is therefore ordered that said plaintiff recover of said defendant out of the property attached herein said sum of ($ ) dollars, and also his costs of suit. And it is further ordered and adjudged by the court that so much of the attached property of the defendant, G. S., as may be necessary to fully satisfy this judgment, with the interest and accruing costs, shall be sold under the same restrictions and regulations as if the same had been levied on by execution, and the money arising therefrom be applied to satisfy this judgment and such said costs. No. 57. Motion of defendant asking to set aside judgment and order of sale. D. O, Jr., Plaintiff, vs. Case No. . G. S., Defendant. Now comes G. S., defendant, and enters his appearance herein, and sub- mits to the jurisdiction of the court, and moves the court to vacate and set aside the judgment heretofore taken herein, and for leave to file an- swer instanter for the following reasons, to-wil : That defendant is a resident of , and iliil nut have actual knowledge of the pendency of said action in sufficient time to employ counsel and present his defense; :ind second, that defendant has a good and sufficient defense against the various causes of action set out in said petition. B. G. and P. S. W\. Attorneys for Defendant. 169 FORMS. No. 58. Order of court sustaining motion and granting defend- ant leave to answer. D. C, Jr., Plaint iff, vs - Case No. . G. S., Defendant. This cause coming on to oe heard upon the motion of defendant here- tofore riled herein, praying the court to vacate and set aside the default judgment and the order of sale heretofore made, and for leave to defend- ant to tile answer instanter, and the court, being fully advised in the premises, orders and directs that said order of sale heretofore made be. and the same is, hereby suspended, pending the ultimate verdict and de- cision of said cause, and defendant given leave to file an answer instanter. costs to follow the suit. No. 59. Answer of defendant to the petition of plaintiff in attachment. D. C, Jr., Plaintiff, vs - Case No. . G. S., Defendant. An s web. 1. First Defense: Now comes the defendant, and, for his first defense herein, admits the execution and delivery to the payee set out in plaintiff's petition, each and all of the several notes herein described. Defendant further says that plaintiff is not the bona fide holder for value of said notes; that the same, and each of them, were transferred and assigned to him after the maturity thereof, without consideration, and for the purpose of collection only. 2. Second Defense: Defendant, for his second defense herein, admits the execution and de- livery to the payee set out in plaintiff's petition, eacli and all of the sev- eral notes therein described. Defendant further says that the note for dollars, the note for dollars, the note for dollars and the note for ■ dollars, set out in plaintiff's second, third, fifth and sixth causes of action in said petition, are without consideration and wholly void: that sometime about the year IS one B. A. K., then B. A. 8.. and this defendant became the owners in fee simple, each having an undivide-l one-half interest therein, of certain lands in tli State of California, said B. A. K., then B. A. S., paying the sum of dollars, the amount represented by the notes set out in plaintiff's second, third, fifth and sixth causes of action: that, by reason of the failure of the irrigating company £ • i • ©or. furnishing the water supply, the land became arid and valueless, and. by reason thereof, the land project was by them and each of them aban- doned; that some years afterward, about the day of , MERWINE ON REAL ACTIONS. 170 10 , defendant executed and delivered to said B. A. K., formerly B. A. S., the notes set out in plaintiff's second, third, fifth and sixth causes of action, but defendant avers that there was no consideration passing from said b. A. K. to him for the execution of said notes, and that the same were without any consideration whatever. 3. Third Defense: Defendant, for his third defense herein, admits the execution and de- livery to the payee set out in plaintiff's petition, each and all of the sev- eral notes therein described. This defendant says that said notes, and each of them, were trans- ferred, assigned and delivered to plaintiff long after the maturity thereof. Further answering, this defendant says that he is the owner of the undivided one-half interest in and to the following real estate, to-wit: in the township of — , county of , and State of Ohio, and bounded and described as follows: (Here insert description of real estate) that said B. A. K. is the owner of the other undivided half interest: in said lands; that said B. A. K. has continuously, since , 18 , enjoyed the possession of said premises, together with all the lands, issues and profits thereof, and had and maintained exclusive control and posses- sion thereof; that the value of the lands, issues and profits from the day of , IS , are reasonably worth the sum of dol- lars. This defendant therefore asks judgment, by way of set-off, for said sum of dollars, and for all further and proper relief. B. G., Attorney fur Defendant. Verification. No. 60. Reply of plaintiff to answer of defendant. D. C, Jr.. Plaintiff, vs. Case No. . G. S., Defendant. Reply. For his reply to the First Defense of the second amended answer, the plaint ill' denies that he is not the bona fide holder for value of the notes set forth in the petition, and denies that the same, or any of them, were transferred and assigned to him without consideration, or for the purpose of collection only. For reply to the Second Defense of the second amended answer herein, plaintiff denies that t lie note for $ , the note for $ , the note for $ and the note for $ , set out in plaintiff's sec- ond, third, fifth and sixth causes of action in plaintiff's petition, are with- out consideration, and wholly void. Plaintiff further says that he has not information concerning he other ,, fitter- and things s.'t forth in defendant's second defense in hl^ second amended answer contained, other than as obtained from said second amended answer, and therefore denies each and every allegation therein contained not hereinabove specifically admitted to be true. 171 FORMS. For reply to the Third Defense of the second amended answer herein, the plaintiff admits that said notes, and each of them, were transferred, assigned and delivered to the plaintiff after the maturity thereof, and upon the dates set forth in the petition herein. Plaintiff further says that he is informed, and therefore admits the fact to be, that the said defendant and the said B. K. are, and for a long time have been, owners of undivided one-half interests, respectively, in the real estate described in the third defense to said second amended answer, subject, however, to the dower estate of C. S.; that the time or the exact extent or the nature of the possession and rights of said B. K. and S. in said premises this plaintiff does not know, and therefore cannot state. For further reply, the plaintiff denies each and every allegation in said third defense contained not herein specifically by him admitted to be trse. Wherefore, plaintiff prays as in his petition. D. C, Jr., Attorney fur Plaintiff. Reply should be verified as in other cases. No. 61. Verdict of jury on trial of the issues in attachment proceedings. D. C, Jr., Plaintiff, vs. Case No. — . G. S., Defendant. We, the jury, being duly impaneled and sworn, find the issues in this case in favor of the plaintiff, D. C, Jr., and assess the amount due to the plaintiff from the defendant at the sum of $ . H. R. G., Foreman. No. 62. Motion of defendant to vacate and set aside verdict of jury and for new trial in proceedings in attachment. D. G, Jr., Plaintiff, vs. Case No. G. S., Defendant. Now comes the defendant, and moves the court to set aside and vacate the verdict of the jury, and for a new trial, for the following reasons- 1. The verdict is not sustained by sufficient evidence. 2. The verdict of the jury is against the weight of the evidence. 3. The amount of damages awarded are excessive. 4. The court erred in rejecting testimony which was offered by de- fendant. 5. The court erred in admitting testimony of plaintiff to which the de- fendant at the time objected. 6. The verdict should have been for the defendant under the testimony. 7. Errors of law occurring at the trial and excepted to by the de- fendant. 8. The court erred in its charge to the jury. B. G., Attorney for Defendant. MERWINE ON REAL ACTIONS. 172 No. 63. Judgment and order of the court overruling motion for new trial and order of sale. D. C, Jr., Plaintiff, vs. Case No. . G. S., Defendant. This clay this cause came on to be heard on the motion of the defendant for a new trial, was argued by counsel and submitted to the court, and, upon consideration thereof, the court finds that said motion is not well taken, and therefore overrules the same, and judgment is ordered ren- dered on the verdict of the jury heretofore rendered herein. It is therefore considered, ordered and adjudged that the plaintiff re- cover of the defendant said sum of dollars, with interest from the day of . 19 , as heretofore by the verdict of the jury herein found due him. together with his costs herein expended. To all of which rulings, orders and judgments of the court the defend- ant excepts. And, on motion of the said plaintiff, it is ordered that the sheriff pro- ceed, as upon execution, to appraise, advertise and sell the real estate heretofore attached in this action, and that he report his proceedings to this court for confirmation. On motion of counsel, and for good cause shown, publication of notice of sale in German newspaper is hereby dispensed with. No. 64. Order of sale in attachment proceedings issued by the clerk to the sheriff. Coubt of Common Pleas. State of Ohio, County, ss. : To the Sheriff of said County, Greeting: Whereas, D. C, Jr., plaintiff, on the day of , A. D. 19 , sued out a writ of attachment from the clerk of the Court of Common I'leas of said County, directed and delivered to the sheriff of said county, requiring him to attach the lands, tenements, goods, chattels, stocks or interest in stocks, rights, credits, money and effects of , defendant, in his county, not exempt by law from being applied to the payment of the plaintiff's claim, or so much thereof as would sat- isfy the plaintiff's claim. Ami said sheriff returned said writ executed by attaching the follow- ing: I Here insert description of real estate. It is therefore considered, ordered and adjudged by the court that the plaintiff recover of the defendant said sum of dollars, with in- terest from the day of , as heretofore by the verdict of the jury herein found due him. together with his costs herein expended. To all of which rulings, orders and judgments of the court the defend- ant excepts. And, upon motion of the said plaintiff, it i- ordered that the sheriff proceed, as upon execution, to advertise and sell the real es- tate heretofore attached in this action, and that he report his proceedings 173 FORMS. to this court for confirmation. On motion of counsel, and for good cause shown, publication of notice of sale in German newspaper is hereby dis- pensed with. And afterwards such proceedings were had in said Court of Common Pleas of County that, at the term thereof, A. D. 19 , the said plaintiff recovered a judgment against the said defendant for the Mini of dollars damages, and for costs, taxed at dollars. You ark Therefore Hereby 'Commanded, After applying the moneys arising from the sale of perishable property attached in said cause (if any have been so made i , to sell so much of the said property remaining in your hands, and so much of said personal property, and lands and tene- ments, if any, whether held by legal or equitable title, as may be neces- sary to satisfy said judgment, under the same restrictions and regula- tions as if the same had been levied on by execution. You will make return of your proceedings herein to our said Court of Common Pleas within sixty days from the date hereof, and have you tin n and there this writ. Witness my signature as clerk of our said Court of Common Pleas, and the seal of said court, at , Ohio, this — — day of , 1!) H. C. P.. Clerk., By J. S. \Y., Deputy Cleric No. 65. Sheriff's return of his proceedings under the order of sale. The State of Ohio, County, ss. : In obedience to the command of the hereto annexed, I did, on the day of , summon L. C. P., D. M. R. and A. P. S., three disinter- ested freeholders of said county, who were by me duly sworn to view and appraise the lands and tenements therein described; and afterward, on the day of , A. D. 19 , said appraisers returned to me, under their hands and seals, that they did, upon actual view of the prem- ises, estimate and appraise the real value in money of the same at dollars. A certified copy of said appraisal I forthwith deposited in the otiice of the clerk of the Court of Common Pleas of said county. And on the day of , 19 , I caused to be advertised in the (a newspaper printed and published, and of general circulation, in County) said lands and tenements to be sold at public sale at the door of the court house of said county, on the day of , A. D. 19 . at o'clock — M. of said day. And having advertised said lands and tenements for more than thirty days previous to the day of sale, to-wit: consecutive weeks, and in pursuance of said no- tice. I did, on said day of . A. D. 19 . at the time and place above mentioned, proceed to offer said land< and tenements at pub- lic auction at the door of said court house, and then and there came D. C, who bid for the same the sum of dollars; and said sum being more than two-thirds of the appraised value thereof, and said D. C. being the highest and best bidder therefor, I then and there publicly sold and struck off said lands and tenements to him for said sum of dol- lars. G. J. K., Sheriff. MERWINE ON REAL ACTIONS. 174 No. 66. Proof of publication of sheriff's sale and the legal notice of such sale. State of Ohio, County, ss. : 1, A. R. K., being duly sworn, depose and say that the notice of case No. , D. t ., Jr., plaintiff, vs. G. S., defendant, of which a true copy is hereunto affixed, was published times , and immedi- ately prior t<> the day of , A. D. 19 , the day of the sale was therein mentioned in the , a daily newspaper printed in the city of , county of , State of Ohio, and of general circula- tion therein. A. R. K. Sworn to before me and subscribed in my presence this day of , 1.. D. M. /'. and A. P. S., Freeholders of • County, State <,f Ohio: Whereas, On the day of , A. D. 10 , D. C. sued out a writ of attachment in the action of D. C, Jr., vs. G. S., on which the premises hereinafter described were seized and attached, said action being filed in the Common Pleas Court of said County, said premises being described as follows: (Here insert description of real estate.) And WHEBEA8, Afterward, to-wit : at the term of said court, A. D. 19 , such proceedings were had upon said petition, by said court, that the sheriff of County was ordered to sell said real estate, as upon judgments and executions at law. Now, therefore, according to the statute in such cases made and provided, I do hereby call and appoint you, the said A. P. S., L. ('. L. and D. M. R. an inquest, and do require 175 FORMS. you, on oath, forthwith to view, estimate and appraise the real value of said premises, in money, and return to me your doings, under your hands and seals. Given under my hand and seal this day of , A. D. 10 . G. J. K., Sheriff, [seal.] By E. L. H., Deputy. Personally appeared hefore me, G. J. K., sheriff of County aforesaid, the above named A. P. S., L. C. L. and D. M. R., appraisers aforesaid, who are judicious, disinterested freeholders, and citizens of said county of , and were personally sworn according to law to dis- charge the duties of said appointment. Witness my hand and seal this day of , A. D. 19 . G. J. K., Sheriff, [seal.] By E. L. H., Deputy. To G. J. K., Sheriff of County, Ohio, as aforesaid : In pursuance of the foregoing appointment we have proceeded to view the real estate and premises described above, and, from actual view of the same, we do estimate the real value thereof in money to be - dol- lars. Given under our hands and seals this day of , A. 1). 19 • A. P. S., [SEAL.] D. M. R., [SEAL.] L. C. L. [SEAL.] No. 68. Entry confirming sale, ordering distribution and the execution and delivery of a deed to the purchaser at sher- iff's sale of attached property. D. C, Jr., Plaintiff, vs. Case No. . G. S., Defendant. On motion of the plaintiff, and on liis producing the return of the sheriff of the sale made under the former order of this court, on careful examination of the proceedings of the said sheriff, being satisfied that the same have been had in all respects in conformity to law and the orders of this court, it is ordered that the said proceedings and sale be. and they are, hereby approved and confirmed. And it is further ordered that the said sheriff convey to the purchaser, D. C, by deed, according to law, the property so sold. ' And the court, coming now to distribute the proceeds of said sale, amounting to dollars, it is ordered that the sheriff, out of the money in his hands, pay. first, the costs in this action, taxed at $ • secondly, to the plaintiff, 1). C, the balance of said $ . amounting to $ , to be applied on his judgment of $ , with inte: est at per cent, from the day of , 19 . The court finds that the unpaid balance due from the defendant, G. S., to the plaintiff, D. C, is the sum of $ , for which said sum execu- tion is awarded. MEKWINE ON REAL ACTIONS. 176 No. 69. Sheriff's deed for real estate sold under attachment proceedings. To All Persons to Whom These Presents May Come, Greeting: Whereas, On the clay of , 19 , D. C, Jr., plaintiff, filed his certain petition, and then and there commenced a civil action in the Court of Common Pleas of County, Ohio, against G. S., and numbered on the docket of said court as case No. , praying, among other things, for a judgment against said G. S., and the issuance of a writ of attachment against the property of said G. S. ; and Whereas, Such proceedings were had in said action that the said D. C., Jr., on the day of . 19 , caused to be issued out of the office of the clerk of said court an order of attachment, directed tj the sheriff of County, Ohio, commanding him to attach the goods, chattels, lands and tenements of the said G. S. in the said county of , State of Ohio, which said order of attachment duly came inta the hands of the said sheriff; and Whereas, On the day of . 19 , the said sheriff of County, Ohio, attached the lands and tenements hereinafter de- scribed, as the property of the said G. S., and returned his said action upon said order thereafter to the said court; and Whereas, afterwards, to-wit: on the day of , 19 , the said D. C, Jr., obtained, by the consideration of said court at the term, 19 , thereof, a judgment against said G. S. for the sum of $ with interest and costs; and Whereas, Afterward, to-wit: on the day of , 19 , the said D. C, Jr., sued out an order of sale in said action, directed to the sheriff of County, Ohio, commanding him to expose for sale the lands and tenements attached by him as aforesaid, to satisfy the judgment aforesaid, and of said writ, with his proceedings thereon, he should make due return; and Whereas, I, the said G. J. K., sheriff aforesaid, having caused said premises to be appraised and a copy of the appraisement to be duly filed in the office of the clerk of said court, and having advertised the time and place of the sale of the same in , a newspaper printed and of general circulation in said county, for more than thirty days prior to the day of the sale, and otherwise complied with the provisions of said writ, and the provisions of the statute in such cases made and provided, did, on the day of , 19 , at the door of the court house in said county, at o'clock M., of said day, expose for sale, at public auction, the premises hereinafter described, and thereupon, 1). C, Jr., having bid for the same the sum of $ — , which sum being the highest and lx si bill for the same and more than two-thirds the appraised value thereof, the said premises were then and there struck off to him, the said 1). ('., the purchaser, for the sum of $ ; and WHEREAS, The said court at its term, 19 . having examine ; the proceedings of the said O. J. K., sheriff aforesaid, in the premises under said writ, and being satisfied that the sale aforesaid had been made in all respects in pursuance thereof, and in accordance with the provisions 177 FORMS. and requisites of the statute regulating such sales, should be confirmed, and that the said sheriff of County, should convey the said reat estate, by deed in fee simple, to the purchaser, D. C. Now, Know Ye, That 1, the said G. J. K., sheriff of said county of , by virtue of said judgment, writs, sale and confirmation, and of the statute for such cases made and provided, and for and in consider- ation of the sum of $ , which 1 acknowledge to have received from D. C, and of the premises herein, do hereby grant, sell and convey unto him, the said D. C, his heirs and assigns forever, the following described real estate situated in the County of , the State of Ohio, and more particularly described as follows: (Here insert description of real estate), together with all the privileges thereunto belonging, and all the right, title and interest to the said G. S., and of all the other parties to said suit of, in and to the same. To Have and to Hold the premises aforesaid unto the said D. ( '., his heirs and assigns forever, as fully and completely as the said G. J. K., sheriff of County, by virtue of said judgment, writs, sale and confirmation, and of the statute made and provided for such cases, might or should sell and convey the same. In Witness Whebeof, I have hereunto set my hand this — day of , 19 . Sheriff of County, Ohio. Signed and acknowledged in the presence of State of Ohio, County, ss: Personally appeared before me, a notary public in and for said county, the above named G. J. K., sheriff of County, Ohio, the grantor herein, who acknowledged the signing and sealing of the same to be his voluntary act and deed for the uses and purposes therein mentioned. In Witness Whereof, I have hereunto set my hand and seal this day of , 19 . Notary Public, Comity, Ohio. CHAPTER IV. SALE OF ENTAILED ESTATES. Section. 190. General discussion — Entailed estates to pass to issue of first donee. The constitutionality of dis- 191. 192. 193. 194. 195. 196. entailing acts. Where the action must be brought. Who may obtain the sale of entailed and other kindred estates. Such sale must be for the best interest of the parties. Requisites of petition for sale of entailed estates, and who are to be made parties defendant in such action. Procedure incidental to the actions for the sale of en- tailed estates. SECTION. 197. Guardians ad litem should be appointed for minor de- fendants. 198. Order for sale and ell'ect of sale — Appointment of trus- tees. 199. A sale may be had by consent of parties. 200. Report and confirmation of sale and deed. 201. How proceeds of such sale are to be disposed of. 202. The manner of investing funds arising from the sale of en- tailed estates. 203. Further investment of pro- ceeds. 204. Who to receive income and pay taxes and expenses. 205. The manner in which said es- tates may be leased. Sec. 190. General discussion — Entailed estates to pass to issue of first donee. The limited scope of this work forbids any general discus- sion of the lav/ of entailed estates. It is sufficient here to say that much of the old learning of the law of entails does not obtain in Ohio. In this State no estate in fee simple, fee tail or any lesser estate, in lands or tenements, lying within this State, can be given or granted, by deed or will, to any person or persons but such as are in being, or to the immediate issue or descendants of such as are in being, at the time of making such deed or will ; and all estates given in tail shall be and remain an abso- lute estate in fee simple to the issue of the first donee in tail. 1 iGen'l Code, §8622 (R. S. §4200] 178 179 SALE OF ENTAILED ESTATES. §191 Sec. 191. The constitutionality of disentailing acts. Early in the history of the legislation of the procedure for the sale of entailed and other kindred estates, it was decided that such disentailing acts were constitutional ; 2 but the statutes which authorize the proceedings for the sale of entailed estates are unconstitutional when applied to estates sought to be sold which became vested before the passage of the statutes authorizing the procedure. 3 But the Act of April 4, 1S59, and the supplemental acts of March 30, 1864, in so far as they affect and apply to estates created subsequent to their passage, are not in contravention of the Constitution. 4 In some States it has been held that courts of equity have 2 Carroll v. Olmsted, 16 0. 201. 3 Gilpin v. Williams, 25 0. S. 283, in which it was said: "Mcll- vaine, J.: It is admitted that the act of 1805 is retroactive by its terms; but it is claimed that this act merely prescribes the rule by which the act of 1859 must be con- strued: hence, the worda 'has been created,' as contained in the act of 18G5, do not refer to an estate created before the passage of the act of 1850. And if this construction be adopted, it is then claimed that the act of 1859 does not authorize such proceedings where the estates tvere created before its passage; and therefore there was no legislative authority for the proceeding to order a sale in this case. "It is, no doubt, the duty of courts to construe statutes liberally, in or- der to save them from constitutional infirmities. We think, however, that the Legislature certainly in- tended to give the act of 1859 a retrospective as well as a prospec- tive operation. '"The first section provides, 'That it shall be competent for the courts of common pleas, on application of the first donee in tail, or for life, to authorize the sale of entailed estates and estates for life with remainder over, when satisfied that the sale would be for the benefit of the applicant and do no substantial injury to the heirs in tail or oth- ers in succession, reversion or re- mainder.' "The terms here used are cer- tainly broad enough to include the estates created before its passage, and must be held to have that ef- fect in all cases where the sale of such estates in invitum is within the scope of legislative power." *Nimmons v. Westfall. 33 O. S. 226. "While the General Assembly may not constitutionally legislate so as to disturb acquired rights and vested estates, it has power to legis- late upon the subjects embraced in the acts of 1859,' 1804 and 1805. Without entering upon a discussion of the policy of such legislation, the estates embraced in these statutes are within the scope of legislative power, and if the act providing for and regulating the sale of such es- tates is in force at the time the estate is created, it will be con- sidered as created subject to the provisions of the statute. Tn such case, there is no invasion of rights of private property, and such stat- utes are not in conflict with § 19 of Article 1 of the Constitution, or the 28th section of Article 2." Ibid. §§ 192, 193 MERWINE ON REAL ACTIONS. 180 the power, without legislative enactment, to sell entailed and kindred estates. 5 But the jurisdiction o^ our common pleas court to hear and determine such sales depends entirely on legislative enactment. 6 Sec. 1S2. Where the action must be brought. It is provided by statute (Gen'l Code § 11268 [R. S. § 5019]), that actions for the following causes must be brought in the county in which the real estate is situated, except as provided in Gen'l Code § 11269 (R. S. § 5020) (where property is located in more than one county), and Gen'l Code § 11270 (R. S. § 5021) (specific performance) : 1. For the recovery of real property, or of an estate or interest therein. 2. For the partition of real property. 3. For the sale of real property under a mortgage, lien or other encumbrance or charge. While there is no decided ease warranting the statement that the third and last paragraph of the last statute is the law controlling the venue of such actions, yet a careful reading of all of the statutes controlling where all actions «mst be brought, would seem to so indicate. Sec. 193. Who may obtain the sale of entailed and other kin- dred estates. Courts of common pleas, in an action by the tenant in tail or for life, or by the grantee or devisee of a qualified or con- ditional fee, or of any other qualified, conditional or deter- minable interest, or by a person claiming under such tenant, grantee, or devisee, or by the trustees or beneficiaries, if the estate is held in trust, may authorize the sale of any estate, where the same is created by will, deed, contract or came by descent, when satisfied that the sale thereof would be for the benefit of the person holding the first and present estate, in- terest, or use. and do no substantial injury to the heirs in tail, 5 2 Tiatos on Pleading, Practice, v. Dellinger, 127 X. C-.\r. .100; 37 S. Parties and Form, 1577, citing E. 494; Ridley v. Balliday, 106 Thompson v. A. lams. 205 111. 552; Tenn. 607; 82 Am. St. Rep. 902. 69 X. E. I ; Downs v. Long. 70 Md. eGen'l Code, § L1925 (R. S. 382; St. Paul v. Mintzer, 65 Minn, 85803). Gilpin v. Williams, 25 124-. 60 Am. St. 1!,.,,. lit; Schweit- O. S. 283; Ream v. Wools, fil O. S. zer v. Bonn, 55 X. J. Eq. 107; Marsh 131. 181 SALE OF ENTAILED ESTATES. §194 or others in expectancy, succession, reversion, or remainder. But this provision of the statute shall not extend to an estate in dower or by curtesy. 7 From the authority given above it is seen that the probate court is without power, even when the parties are before it, and consenting thereto, to make a sale of an entailed estate, so as to give the purchaser the title thereto in fee simple. The probate court can only make such sales as it is authorized to do by statute. Sec. 194. Such sale must be for the best interest of the parties. Where real estate, consisting of low lands by a river, was held by a lite tenant, with remainder to other tenants, and it was subject to overflow, and it could be sold to a city for its uses, which made other portions of the real estate held by the same parties, under the same title, more valuable, the court held it a proper case for sale as provided by statute ; 8 and where plaintiff was unable to manage the real estate entailed. so as to make it profitable, and where 1 the buildings were decay- ing, thus, depreciating {he value of the real estate, the court authorized a sale under the'statute. 9 Another instance authorizing a sale under the disentailing act, was where the taxes and necessary cost of repairs were so high that the income derived from the life estate was insuffi- cient to pay the same. 10 It was held sufficient to authorize the sale of an entailed estate where the petition alleged that the taxes were high ; that street assessments were contemplated on two streets abutting said property; that the house thereon is old, requiring continual repair and is not in safe condition for occupancy; 7Gen'l Code, §11925 (R. S. §5803). In Jones v. Wright, 1 C. C. N. S. 61, it is said: "The juris- diction of the probate court is lim- ited to that conferred on it by the Constitution and .^tahites of Ohio. It has no jurisdiction to sell en- tailed estates — such jurisdiction is conferred on the court of common pleas by the section of R. S., supra, and even if the parties had con- sented, no jurisdiction could be con- ferred, and any action taken by said court in this regard would be coram -non judice." s Miller v. Pringle, Franklin County Common Pleas Court. Sep- tember Term, 1904. a Nimmons v. Westfall, 33 0. S. 213. io Sherman v. Sherman. 2 C. C. N. S. 454. See also Form 509, Yaple's Pleading. Vol. 2. page 791. §195 MERWINE ON REAE ACTIONS. 182 that no income can be derived therefrom, and that to sell said real estate it will bring $15,000." It was sufficient for the petitioner, seeking thj sale of an entailed estate, to allege that there is situated on the said real estate a brick house, of nine rooms, the value of which is about $3,000, and the rental value thereof not more than $15 per month, which rents, after paying taxes, insurance and repairs, makes the same a very poor investment. 12 Sec. 195. Requisites of petition for sale of entailed estates, and who are to be made parties defendant in such action. In all such actions the petition must contain the description of the estate to be sold, a clear statement of the interest of the plaintiff therein, and a copy of the will, deed, or other instru- ment of writing by which the estate is created; all persons in being who are interested in the estate, or who may, by the terms of the will, deed, or other instrument creating the entail- ment, or other estate, thereafter become interested therein as heir, reversioner or otherwise, are required to be made parties to the petition ; and if the names of any pesons who are to be made parties are unknown to the plaintiff, or if the residences « Dukes v. Dukes, 4 C. C. 508. The facts and decision in this last case were as follows: "Richard Dukes dies testate, devising to his widow, Delia N. Dukes, as follows: 'T give and devise to my beloved wife, Delia X. Dukes, the house and lot OD which the same is situated, and on which I now reside, near Findlay, in the county and State aforesaid, and described as follows [here follows a pertinent descrip- tion of the property], during her natural life also all my household goods and furniture, money, note-, and evidence of debts, which I may own and possess at the time of my death, she, my said wife, to use and enjoy during her natural life. At the death of my said wife the -aid real estate above described and the personal property remaining uncon- sumed, I give and devise to my children, share and share alike.' The widow elected to take under the will. "Held: 1. That the plaintiff has a life estate in the lands described in the will. 2. That the defendants the other devisees named in the will, take a fee in remainder. 3. That plaintiff has the right to ap- ply to the court of common pleas and have the relief granted her as provided by § S803, Revised Stat- utes. 4. Such rights exist, notwith- standing the fact that the real es- tate devised was all that the tes- tator was seized of at the time of his death." i- Stearns v. Stearns, Common Pleas Court, Pickaway County, Ohio, April Term, 190G. 183 SALE OF ENTAILED ESTATES.' §196 of any such parties are unknown to the plaintiff, the factshall be verified by the affidavit of the plaintiff and the sale shall be ordered, notwithstanding such names and residences are unknown. 13 The affidavit mentioned in the foregoing paragraph should be made out and filed in the ease as provided therein. The form of it is quite simple, and it need only contain the require- ments of the statute. A copy of will, deed, or instruments creating the entailed estate, must be attached to the petition ; but if such copy is not so attached to the petition, the omission to so attach it will not invalidate the sale, provided, no one takes advantage of the fact while the matter is pending in the courts. 11 Sec. 196. Procedure incidental to the actions for the sale of entailed estates The manner of service on infants, the appointment of guardians ad litem and answers of guardians ad litem for such infants, service of summons on adults and infants in the county and in other counties of the State, the procedure in ease of insane defendants and appointment of trustees for such insane defendants, and the answers of such trustees for such insane persons, service of summons by publication on non- resident defendants whose places of residence are known and those whose places of residence are not known, service of copy of the petition on non-residents of the State, the affidavits and orders of the court therein, the persons who are to be made parties to the a'ction, all of these and kindred topics are discussed in the first chapter of this book, and below will be found the references to the sections and numbers for the proper forms for procedure pertaining thereto. 15 isGen'l Code, §11026 (R. S. § 5804 ) . See Nos. 70 and 84 fol- lowing, for forms of petition; also skeleton form found in Dukes v. Dukes, 4 C. C. 508 ; see also Oyler v. Scanlon, 33 0. S. 308, for valu- able suggestions in preparation ot petition. 14 Oyler v. Scanlon, 33 O. S. 308. is Sec. 38 as to service on a minor, §§39, 40, 41, 42, 43 and 44 as to conduct of the defense of a minor. Nos. 310, 311, 312, 313, 142, 143, 144 and 145 for procedure where a defendant is insane; §§ 4G and 47 for service by publication; §49 for the affidavit required; §51 as to how publication is made; § 52, when service by publication is complete; § 54 for publication against an un- known heir; § 53 for service of copy of the petition out of the State. §§ 197, 198 MERWINE ON REAL ACTIONS. 184 Sec. 167. Guardians ad litem should be appointed for minor defendants. For the minor defendants*, guardians ad litem should be ap- pointed, and such guardians, in representing their wards in said action, at all times should be controlled and guided by the principles of law and requirements, set forth in another part of this work. 16 For the services of such guardian ad litem, a. fee may be paid out of the funds arising from a sale of the estate. 17 One of the circuit courts of this State has held that in all such actions to sell an entailed estate, plaintiff's attorney cannot be allowed a fee for his services, nor can the costs of the ease, nor the taxes charged against the real estate, be paid out of the fund arising from the sale. 18 In a ease where a tenant for life asked for the sale of the undivided half, held by remainder men, who maintained that said sale would injure them, it was held that the court had power to order a sale of the whole, with the consent of the tenant for life, who held the other undivided half, it appear- ing that such sale would not injure remainder men. 19 Sec. 198. Order for sale and effect of sale — Appointment of trustees. If, upon the hearing of the petition, it be made to appear to the court, by satisfactory proof, that a sale of the estate would be for the benefit of the tenant in tail or for life, and do no substantial injury to the heirs in tail, or others in expectancy, succession, reversion, or remainder, the court is required to direct a sale of the estate to be made, and the manner thereof, and to appoint some suitable person or persons to make the same: and such sale shall vest the estate sold in the. purchaser, freed from the entailment, limitation or condition. 20 »« Sherman v. Sherman, 2 C. C. '" Sherman v. Sherman, 2 C. C. N. S. 256. See S 30 to § 4 I : N. S. 456. also 2 Bates Pleading, Practice, Par- '« Sherman v. Sherman 2 C. ('. lies and Forms, 1577, citing Pratt N. S. 456. v. Bates, 161 Mass. 315; 37 N. E. '» Oyler v. Scanlon, 33 0. S. 308. 439; Ream v. Wools, til O. S. 131. 20 Gen'] Code, §11027 (R. S. It would appear thai 9iich guardians 8 5805). See No. 72, et sequiler, for should be appointed, not only for forms under this paragraph, the living infants, but for the un- born as well. 185 SALE OF ENTAILED ESTATES. §§ 199-202 Sec. 199. A sale may be had by consent of parties. All parties in interest may appear voluntarily and consent in writing to such sale. And testamentary guardians and guar- dians appointed by the court of probate, may assent, in the place of their wards, to the sale.- 1 Sec. 200. Report and confirmation of sale and deed. The law requires that all such sales shall be reported to the court authorizing the same; and if, on examination thereof, it appear that the sale was fairly conducted and made, and that the price obtained is the reasonable value of the estate sold, it is the required duty of the court to confirm the sale and direct a deed of conveyance of the premises sold to be made to the purchaser, on payment of the purchase money or on securing the payment thereof in such manner as shall be approved by the court. 22 Sec. 201. How proceeds of such sale are to be disposed of. The statute provides tha f all money arising from sales under these provisions relating to the sale of entailed estates, shall, for the purposes of descent, succession, reversion, or remainder, have the same character, and be governed by the same principles, as the estates sold, and shall pass according to the terms of the deed, will or other instrument creating the estate. 23 Sec. 202. The manner of investing funds arising from the sale of entailed estates. Money arising from all such sales must, under the direction and approval of the court, be invested in the certificates of the the funded debt of this State, or bonds of any political sub- division thereof, or of the United States, or in bonds or notes secured by mortgage on unencumbered real estate, situate in the proper county, of double the value of money secured thereby, but the buildings thereon, if any, shall be well in- sured against loss by fire, and so kept by the mortgagor for the benefit of the mortgagee until the debt is paid, and on failure so to be insured, mortgagee shall do the same, and the ziGen'l Code, §11028 (R. S. §5807). See Nos. SI and 90 foi §5S(i(ii. S<-<- Xcs. 73 and 87 for forms under this paiagraph. forms under this paragraph. 23 Gea'l Code, §11930 (R. S. 22Gen'l Code, §11929 (R. S. §5808). §§203,204 MERWINE ON REAL ACTIONS. 186 expense of the insurance to the mortgagee shall be repaid by the mortgagor, and be a lien on the property concurrent with the mortgage ; or the court may order the same to be reinvested in other real estate within this State, under such restrictions as it may prescribe, which investment shall be reported to the court and subject to its approval and confirmation ; the real estate in which the money is reinvested shall, for the purposes of descent, succession, reversion, or remainder, have the same character and be governed by the same principles as the estate sold, and shall pass according to the terms of the deed, will, or other instrument creating the estate sold ; the court shall appoint competent trustees to invest the money, and manage the same, who shall, from time to time, report to the court their proceedings, and the condition of the funds; and the court shall require of such trustees security for the faithful dis- charge of their duties; may, from time to time, require addi- tional security ; may remove such trustees for cause or reason- able apprehension thereof; and may accept the resignation of a trustee and fill a vacancy by a new appointment. 24 Sec. 203. Further investment of proceeds. Money arising from any such sales, may, under the direction and approval of the court, be invested in bonds which are either a portion, or the whole of an issue of bonds secured by first mortgage or trust deed, upon the real estate so sold under such restrictions as said court may prescribe, which invest- ment must be reported to the court and be subject to its approval and confirmation. 25 Sec. 204. Who to receive income and pay taxes and expenses. The net income accruing from such sales of entailed estates must be paid to the person or persons who would be entitled to the use or income of the estate were the same unsold; and all taxes, and expenses of investment and the management of the fund, are to be paid by the person or persons entitled to the income thereof. 26 •-'»f:<.„-l Code, 8H931 (R. S. ^(Wl Code, §11933 (R. S. §5809), as passed by the General § 5809a). Assembly, February 25, 1908. See ->;<;,^l Code, "§ 11934 (R. S. Nos. 90, 91 and 92 for forms under §5810). this paragraph. 187 SALE OP ENTAILED ESTATES. § 205 Sec. 205. The manner in which said estates may be leased. Upon like proceedings the court may direct that such estates may be leased for a term of years, renewable or otherwise, as may appear most beneficial, and upon such terms as may ay pear just and equitable ; and the rents and profits thereof are to be paid to the person or persons who might otherwise be entitled to the use and occupancy of the estate or the income thereof. 27 27Gen'l Code, §11935 (R. S. §5811). FORMS. PROCEEDINGS TO SELL AN ENTAILED ESTATE. Forms. 70. The petition to sell entailed estate. 71. Waiver of summons and entry of appearance. 72. Finding and decree ordering sale of property and ap- pointing appraisers. 73. Order of sale. 74. Sheriff's return of his proceed- ings under the writ. 75. The order for appraisement. 76. The oath of appraisers and the appraisement. Forms. 77. The order of the court appoint- ing trustees and fixing bond. The bond of trustees. The official oath of trustees. Answer of trustees. The order confirming appraise- ment and sale, and order for deed and distribution of proceeds. The sheriff's deed in sale of entailed estates. The order approving proceed- ings and ordering sheriff to turn over money to trustee 78. 70. 80. 81. fio 83 No. 70. The petition to sell entailed estate. Court of Common Pleas, County, Ohio. T. J. M., F. J. M., M. D. F. and W. H. F., Plaintiffs, vs. No. M. M. P. and L. R. P., Defendants. Plaintiffs say that on or about the day of -, one A. F. M. seized in fee simple of the following described premises, situated in the county of , in the State of Ohio, and bounded and described as follows, to-wit: (Here describe said real estate), by his last will and testament duly executed and delivered and thereafter duly offered for and admitted to probate and record in the Probate Court of county, Ohio, save, devised and be- queathed the said real estate, lands and tenements to the plaintiff, F. J. M. for life, with the remainder over to his children. Plaintiff says that the said F. J. M. intermarried with his co- plaintiff. T. J. M., and that the fruits of such marriage are the defendant M. M. P. and the plaintiff, M. D. F.; the said plaintiff, W. H. F., is the husband of M. D. F., and the defendant L. R. P., 188 189 FORMS. is the husband of the said M. M. P.; that all of said children have arrived at the age of majority. In the last will and testament of said A. M., deceased, title to the said real estate above described became vested in the said F. J. M. and his heirs and assigns for life, with the estate in tail in the children of the said F. J. M. Plaintiff says that since the title was so vested, the said F. J. M. conveyed the said life estate to the said plaintiff, T. J. M., to her heirs and assigns, and that she is now the owner and holder thereof, and plaintiff further says that his said wife, T. J. M., and this plaintiff, F. J. M., and the plaintiff, M. D. F., and the plaintiff, W. H. F., and the defendants M. M. P. and L. R. P. are the only persons in being who are interested in the said estate or who can hereafter become interested therein as heir, reversioner, owner of life estate or otherwise; that the said real estate lies along the bank of the River and a part of it is subject to overflow at the time of high waters of said river; that the city of is desirous of purchasing the part thereof hereinbelow described for the uses of said city, and plaintiff says that part of the land so desired by said city is of little value to the said owner as agricultural land on account of said high water; that the im- provements contemplated by the said city of will render the remainder of said farm less subject to overflow and will be of great benefit to the remainder of said farm land; that the sale of said parcel hereinafter described would be for the benefit of said owners of said present estate; and also would be a benefit and do no injury whatever to the said heirs in tail, expectancy, succession, reversion or remainder; that the use to which the city expects to put said lands makes it more valuable to said city than to any other person, and that said city is willing to pay a fair and reasonable compensation therefor in view of the uses to which said city expects to put said lands, and the said compensation is larger than can be obtained therefor for any other purpose. Plaintiff says that the portions of said land which the city of is desirous of acquiring is bounded and described as follows, to-wit: (Here describe real estate sought to be sold). Wherefore, these plaintiffs pray, that if, upon the hearing of the petition, it shall be made to appear to the court, by satisfactory proof, that the sale of the said parcel hereinabove last described, would be for the benefit of the persons in tail or for life, and would do no substantial injury to the heirs in tail, expectancy, reversion or remainder, the court shall direct the sale of said premises herein above described to be made and shall direct the manner therof, and shall appoint some suitable person or persons to make the same, and for all other and further judgments, orders, decrees and relief as to the court shall seem just and the nature of the case may require. J. J. S., Attorney for Plaintiffs. Petition should be verified as in other cases. MEKWINE ON REAL ACTIONS. 190 No. 71. Waiver and entry of appearance. The within named plaintiffs, T. J. M., F. M., M. D. F. and W. H. F. and the within named defendants, M. M. P. and L. R. P., hereby waive the issuing and service of summons herein and enter their appearance and consent to the prayer of the petition. T. J. M. F. M. M. D. F. M. M. P. W. H. F. L. R. P. No. 72. Finding and decree ordering sale of property and appointing appraisers. Court of Common Pleas, County, Ohio. T. J. M., F. J. M., M. D. F. and W. H. F., Plaintiffs, vs. No. . M. M. P. and L. R. P., Defendants. This day came the parties and thereupon this cause came on to be heard on the pleadings filed herein, exhibits, testimony and evidence adduced, and also upon the waiver filed herein and consent of all the parties, admitting the allegations of the petition to be , true, and consenting that the court enter a decree in accordance with the prayer of said petition, and upon due consideration thereof and being fully advised in the premises, the court finds that all the parties hereto have entered their appearance herein, and have consented to the prayer of the petition, and that the allegations of the petition are true. The court further finds that the plaintiff, F. M., inherited the life estate in the said real estate in the petition described under the said will of his said father, and that he conveyed the same to the plaintiff, T. J. M., and that she is now the owner thereof; and the court further finds that the plaintiff, M. D. F., and the defendant, M. M. P., are his heirs in tail to said real estate, and that both of said children have arrived at the age of majority; that the plaintiff, W. H. F., is the husband of the plaintiff M. D. F.; that the defendant, L. R. P., is the husband of the defendant M. M. P.; that the plaintiff, F. M., is the husband of the plaintiff, T. J. M., and that the plaintiff, T. J. M., has an interest in said premises as tenant for life, all as in tho petition set forth. And it having been made to appear to the court by the evidence adduced that the sale of said real estate as asked in the petition, would be for the benefit of the said plaintiffs, and would do no substantial injury to the defendants, the heirs in tail, nor to any 191 FORMS. other of said defendants, or to any of said plaintiffs, it is hereby ordered and decreed by the court that said real estate, described in the petition, be sold, free from all entailments, limitations, or conditions, in the manner as by law provided in case of sales upon execution, by G. J. K., sheriff of this county, who is hereby appointed to make said sale with all the power possessed by sheriffs and master commissioners in such cases, and that an order of sale issue there- for to the said G. J. K., directing him to appraise, advertise and sell said premises as in sales upon execution, provided, however, that at any time before sale at public auction, the said premises may be sold at private sale, for cash, at a sum not less than the appraised value thereof, and a return of said sale, with the proceeds thereof, shall be made to this court for further order herein. No, 73. Order of sale. The State of Ohio, County, ss.: To the Sheriff of said County, Greeting: Whereas, at a term of the Court of Common Pleas, held at in and for said county, on the day of , 19 , in the cause of T. J. M., et al, plaintiffs, and M. M. P. et al, defendants, it was ordered, adjudged and decreed as fol- lows, to-wit: That said real estate described in the petition be sold, free from all entailments, limitations or conditions in the manner as by law provided in case of sales upon execution, by G. J. K., sheriff of this county, who is hereby appointed to make said sale, with all the power possessed by sheriffs and master commissioners in such cases, and that an order of sale issue therefor to said G. J. K., directing him to appraise, advertise and sell said premises as in sales upon ex- ecution, provided, however, that at any time before sale at public auction, the said premises may be sold at private sale, for cash, at a sum not less than the appraised value thereof, and a return of said sale with the proceedings thereof shall be made to this court for further order herein. (Here give description of real estate.) We Therefore Command You, That you proceed to carry said order, judgment and decree into execution agreeably to the tenor thereof, and that you expose to sale the above described real estate, under the statute regulating sales upon execution, and that you apply the proceeds of such sale in satisfaction of said judgment and decree, with costs and interest, as specified therein; and that you make report of your proceedings herein, to our Court of Common Pleas within sixty days from the date thereof, and bring this order with you. And I certify under seal of court that the description of property herein is correctly copied from the records of this case on file in this office. Witness my signature as Clerk of our said Court of Common Pleas, and the seal of said Court, at , this day of ■ , 19 . , Clerk of Courts. MEKWINB ON REAl, ACTIONS. 192 No. 74. Sheriff' s return of his proceedings under the writ. In obedience to the command of the order of sale hereto annexed, I did, on the day of , 19 , summon , and , three disinterested freeholders, residents of said county, who are by me duly sworn to impartially appraise the lands and tenements therein described, upon actual view, and after- wards, on the day of , 19 , said appraisers re- turned to me, under their hands and seals, that they did, upon actual view of the premises, estimate and impartially appraise the real value in money of the same at $ . A certified copy of said appraisal I forthwith deposited in the office of the Clerk of the Court of Common Pleas of said County. And on the day of , 19 , came the City of , Ohio, who bid for the same the sum of $ , the said sum being more than the appraised value thereof, and said city of , Ohio, being the highest and best bidder therefor, I then and there struck off said lands and tenements to it for said sum of $ , in accord- ance to the order of the court herein directing me to sell said premises at public sale at no less than the appraised value thereof. G. J. K., Sheriff. No. 75. The order for appraisement. The State of Ohio, County, ss. : To , and , freeholders of County, State of Ohio. Whereas, on the day of , 19 , T. J. M., et al, filed in the Court of Common Pleas of said County, Ohio, a petition against M. M. P. et al. praying said court for an order to sell certain real estate described in said order, situate in the County of , and State of Ohio, and bounded and described as follows: (Here describe real estate.) And Whereas, afterward, to-wit: at the term of said court, 19 , such proceedings were had upon said petition by said court, that the sheriff of County, was ordered to sell said real estate, as upon judgment and execution at law. Now there- fore, according to the statute in such cases made and provided, I do hereby call and appoint you the said , and , and request and do require you, on oath, forthwith to view, estimate and appraise the real value of said premises, in money, and return to me your doings, under your hands and seals. Given under my hand and seal, this day of , 19 • , Sheriff. 193 FORMS. No. 76. The oath of appraisers and the appraisement. State of Ohio, County, ss.: Personally appeared before me, G. J. K., sheriff of County, aforesaid, the above named , and , appraisers aforesaid, who are judicious, disinterested freeholders and citizens of said County of , and who were personally sworn according to law to discharge the duties of said appointment. Witness my hand and seal, this day of , 19 . Sheriff. To (1. J. A"., Sheriff of County, Ohio, as aforesaid: In pursuance of the foregoing appointment, we have proceeded to view the real estate and premises above described, and from actual view of the same, we do estimate the real value thereof in money to be $ . Given under our hands and seals this dav of 19 • — [seal.] [seal.] ■ [seal.] No. 77. The order of the court appointing trustees and fixing bond. Court of Common Pleas, County, Ohio. T. J. M., F. J. M„ M. D. F. and W. H. F., Plaintiffs, vs - No. . M. M. P. and L. R. P., Defendants. This day came the parties and thereupon this cause came on to be heard on motion for the appointment of trustees herein, as provided by statute. On consideration whereof, and being fully advised in the pre- mises, the court does hereby appoint T. J. M. and M. M. P., trustees, for all persons who are now, or may hereafter be interested in the premises described in the petition, who, before entering upon their duties as such trustees, shall give an undertaking to the approval of the court for the faithful performance thereof, in the sum of $ . And said trustees are made parties hereto with leave to answer instanter, and which is accordingly done. No. 78. The bond of trustees. Whereas. T. J. M. and M. M. P. were, on the day of . 19 , duly appointed trustees in the case of T. J. M., MERWINE ON REAL ACTIONS. 194 et al, plaintiffs, vs. M. M. P., et al, defendants, now pending in the Court of Common Pleas, County, Ohio. Now, therefore, we, T. J. M. and M. M. P, as principal, and M. D. F. and F. M. as sureties, jointly and severally obligate our- selves and undertake to the State of Ohio, and to the said plaintiffs and defendants and to all to whom it may concern, in the sum of dollars ($ ) that the said T. J. M. and M. M. P. shall faithfully discharge the obligations, and duties of trustees in said action, and obey the orders of the court therein. T. J. M. M. M. P. M. D. F. and F. M. No. 79. The official oath of trustees. State of Ohio, County, ss. : F. J. M. and M. M. P. make solemn oath that they will faithfully perform the duties of trustees in the case of T. J. M., et al, plaintiffs, vs. M. M. P., et al, defendants, Case No. , Court of Common Pleas, County, Ohio. T. J. M. [seal.] M. M. P. [seal.] I certify that the above was signed by T. J. M. and M. M. P. in my presence and sworn to before me this day of , 19 , , Clerk of Courts. I certify under seal, that in obedience to the order of the court, I approve the above undertaking and surety or sureties therein, dated this day of , 19 . October 26, 1904. Clerk of Courts. No. 80. Answer of trustees. Court of Common Pleas, County, Ohio. T. J. M., F. J. M., M. D. F. and W. H. F., Plaintiffs, vs. No. . M. M. P. and L. R. P., Defendants. Now come T. J. M. and M. M. P. heretofore j;ppointed trustees herein, and for their answer herein say that as such trustees and representatives of all the persons and parties interested in the sub- ject matter of this suit, including as well those now living as those who may hereafter come into life, if any such theie may be, and ask the court to protect the interests of all of such persons for whom these answering defendants are trustees by such orders and decrees as shall fully protect all the rights and interests of any 195 FORMS. such defendants, and of all persons who are now in being or may hereafter come into being, who may be interested in the subject matter of this action by reason of said last will and testament and by reason of the matters set out in the petition herein. Answer should be verified in the ordinary way. No. 81. The order confirming appraisement and sale, and order for deed and distribution of proceeds. Court of Common Pleas County, Ohio. T. J. M., F. J. M., M. D. F. and W. H. F., Plaintiffs, vs. No. . M. M. P. and L. R. P., Defendants. This day came the parties and thereupon this cause came on to be heard on the return of G. J. K., sheriff of County, Ohio, heretofore appointed to make the sale of the premises in this cause ordered to be sold, with his report of his proceedings in the sale under said writ. And the court having carefully examined said proceedings and being satisfied that the said appraisement and the said sale have in all respects been fairly and legally made and in conformity to the orders of this court, and that the appraised value of said real estate is the fair and true value thereof, and that the price obtained therefor by said sale is the reasonable value of the said real estate sold, do approve and confirm the same in all respects, and order the said J. G. K. as sheriff of County r , to make to the pur- chaser a deed in fee simple for the premises so sold. It is further ordered by the court that said sheriff pay the costs as hereinafter ordered, that he pay the balance of said proceeds to said trustees, T. J. M. and M. M. P., and that the pro- ceeds of said sale, after payment of the costs of this proceeding, to-wit: the sum of $ , including a fee of $ allowed to plaintiff for services herein on behalf of all the parties, and also including $ , cost of the insurance, and $ , cost of survey, be invested in bonds secured by mortgage on unincumbered real estate situated in County, Ohio, of double the value of the money secured thereby, exclusive of buildings and other im- provements, and of timber, mines, and minerals; or, be re-invested in other real estate within this State, as provided by law. The court hereby ratifies and approves the former appointment herein made of trustees for such purpose, and hereby re-appoints the same trustees, and the court finds that the said trustees have given an undertaking to the approval of the court for the faithful performance of their duties, in the sum of $ , and the court does here now approve said undertaking. MERWINE ON REAL ACTIONS. 196 No. 82. The sheriff's deed. To all Persons to whom these presents shall come. Greeting: Whereas, on the day of , 19 , T. J. M., et al, plaintiffs, filed their petition and then and thereby commenced a civil action in the Court of Common Pleas of County, Ohio, against M. M. P., et al, defendants, and numbered on the dockets of said court as case No. , praying therein, among other things, lor the sale of certain real estate in said petition and here- inafter described; and Whereas, such proceedings were had in said action, that by the consideration and judgment of said court on the day of , 19 , in the term, 19 , G. J. K., sheriff of County, Ohio, was ordered to appraise, advertise and sell said real estate, hereinafter described, free from all entailments, limitations or conditions in manner as by law provided for sales upon execution, provided, however, that at any time before sale at public auction, the said premises may be sold at private sale, for cash, at a sum not less than the appraised value thereof; and Whereas, afterwards on the day of , 19 , in pursuance of said order and judgment of said court, and founded thereon, an order of sale issued from said court in said cause, directed to G. J. K., sheriff of County, Ohio, commanding him to execute said order and in all things to be governed by the provisions of the statute in such cases made and provided, and of said order, with his proceedings thereon, he should make due return; and Whereas, I, G. J. K., sheriff as aforesaid, having caused said premises to be appraised by three disinterested freeholders of County, Ohio, and they, having appraised said premises at $ , a copy of which appraisement was duly filed in the office of the clerk of said courts, and thereupon came , and having bid for said premises the sum of $ , which sum being more than the appraised value thereof, I then and there sold said premises to the said , the purchaser, for the sum above mentioned; and Whereas, the said court, at its Term, 19 , having examined the proceedings aforesaid in the premises under said order of sale, and being satisfied that the sale aforesaid has been made in all respects in pursuance to said judgment and order of sale, and in accordance with the provisions and requirements of the statute regulating such sales, did order that such sale should be confirmed, and thai the said sheriff of said county should convey the said real estate, by deed in fee simple, to the purchaser, Now, know ye, that I. the said 0. J. K., sheriff of County, Ohio, as aforesaid, by virtue of said judgment, order of sale, sale and confirmation, and the statute for such cases made and pro- vided, and for and in consideration of the premises herein and the sum of $ , which I acknowledge to have received from the purchaser above named, do hereby grant, sell and convey unto it, 197 FORMS. the said , its successors and assigns forever, the following real estate: (Here describe it). To Have and to Hold the premises aforesaid unto the said , its successors and assigns forever, as fully and completely as I, the said G. J. K., sheriff of County, Ohio, by virtue of said judgment and order of sale, sale and confirmation, and of the statute made and provided for such cases, might or should sell and convey the same. In Witness Whereof, I have hereunto set my hand and seal this day of , 19 . G. J. K., Sheriff, Coicnty, Ohio. Signed, sealed and acknowledged in presence of State of Ohio, County, ss.: Personally appeared before me, a Notary Public within and for said county, the above named G. J. K., sheriff of County, Ohio, the grantor in the above deed of conveyance, who acknowl- edged the signing and sealing of the same to be his voluntary act and deed for the uses and purposes therein mentioned. In Witness Whereof. I have hereunto set my hand and seal this day of 19 . [seal.] Notary Public, Co-unty. Ohio. No. 83. The order approving proceedings and ordering sheriff to turn over money to trustees. Court of Common Pleas, County, Ohio. T. J. M., F. J. M., M. D. F. and W. H. F., Plaintiffs, vs - No. . M. M. P. and L. R. P., Defendants. This day came the parties and thereupon this cause came on for further proceedings herein. On consideration whereof, and being fully advised in the prem- ises, and upon careful examination of all the proceedings hereto- fore and herein, the court finds that said proceedings have been had in full conformity to the statutes for such cases made and provided, and that all the parties hereto are within the jurisdiction of the court herein: that all the parties, both plaintiffs and defendants, have attained their majority, and that all thereof have entered their appearance herein: that sale has been made of said premises ac- cording to law, and that the same has been duly and legally sold, and that a deed therefor has been made to said by G. J. MERWINE ON REAL ACTIONS. 198 K., sheriff of this county, who was heretofore authorized to make said sale; that the money therefor has been duly paid to the said sheriff; and that trustees have been duly appointed herein as pro- vided by law, and that said trustees have given a bond to the approval of the court. The court further finds that said trustees have filed their answer herein on behalf of said trust and on behalf of all of said persons now or hereafter to become interested therein; and the court does therefore approve and confirm all of said proceedings and said ap- pointment of said trustees, and does here now order that the said G. J. K., as sheriff by whom this sale in this cause was made, turn over to these trustees all money in his possession arising from said sale, after deducting therefrom the costs and expenses as heretofore ordered Note. — For forms for manner of investing proceeds of such sale and for form or order of court approving same, see Nos. 91 and 92, hereinafter. OTHER FORMS OF PROCEDURE IN SALE OF ENTAILED ESTATES. Form's. 84. Another form for petition in the sale of entailed estates. The answer under said petition. The decree and order of sale of premises and appointment of trustees. The order of sale and the re- port of sale. 88. The acceptance of appointment. 89. The bond of trustee. 85 86 87. Forms. 90. The entry confirming sale and ordering trustee to pur- chase other real estate. 91. The report of trustee as to in- vestment. 92. The order of court approving investment. 93. Another form for a petition by tenant for life for sale of estate. No. 84. Another form for petition. Court of Common Pleas, R. S. Plaintiff, vs. G. M. S. and C. E. S., minors, J. E. S. as guardian of the estates of said G. M. S. and C. E. S., A. R., J. M. K. and C. H. K. Defendants, County, Ohio. No. day of 19- M. A. K., On or about the late of said County, Ohio, and who was the mother of plaintiff, died, leaving her last will and testament, which was duly admitted 199 FORMS. to probate and record by 'the Probate Court of said county, and is recorded in the Will Records of said Probate Court, in Vol. , at page . By item of said will, a true copy of which is hereto attached marked "Exhibit O," and by reference made a part hereof, said M. A. K. gave and devised the following real estate, situated in the County of , State of Ohio, and in the City of , and bounded and described as follows: (Here insert description of real estate). To plaintiff here "for and during her natural life, and at her death, then the same to go to the heirs of her body in fee simple." And no other disposition was made of said premises. The defendant, G. M. S., a daughter who will be years of age on , 19 , and the defendant, C. E. S., a son, who will be years of age on the day of , 19 • are the only persons in being, who are the children or descendants of plaintiff, and as such are seized of an estate in remainder in said real estate. J. E. S., who is the husband of plaintiff, and also the father of G. M. S. and C. E. S., was, on or about the day of . 19 , by the Probate Court of County, Ohio, wherein they resided, duly and legally appointed as guardian of the estates, respectively, of their said children, is duly qualified therefor, and is now lawfully acting as such guardian. The defendants, A. R., J. M. K. and C. H. K., and the plaintiff, are the only living children of said M. A. K., deceased, and are her only heirs at law. On said real estate described there is erected a brick house of rooms and a wooden stable; the same is worth $ , but can be rented for no more than $ per month, which, after paying taxes, insurance and repairs, makes the same a very poor investment. Plaintiff's interest in said premises is an estate for her natural life; she is still the owner of said life estate, and is now in possession of the property; and it would be for her advantage, and do no substantial injury to any of the others in interest, if the property were sold and the proceeds invested under the order of this court, as provided by statutes. Wherefore, plaintiff prays that the court direct a sale of said real estate to be made in fee simple, and the manner thereof, and appoint some suitable person to make the same; and grant all other proper relief in the premises. Attorneys for Plaintiff. State of Ohio, County, ss.: R. S., the plaintiff in the above entitled cause, being first duly sworn, says that the statements made and allegations contained in her foregoing petition are true, as she believes. MERWINE ON REAL ACTIONS. 200 Sworn to before me by R. S. and by her subscribed in my pres- ence, this day of , 19 . Notary Public in and for County, Ohio. No. 85. The answer of defendants consenting to sale. Court of Common Pleas, County, Ohio. R. S., Plaintiff, vs. No. . G. M. S. and C. E. S., minors, J. E. S. as guardian of the estates of said G. M. S. and C. E. S., A. R., J. M. K. and C. H. K., Defendants. We, the undersigned, the defendants in the above entitled cause, admit the allegations of the petition in this case, voluntarily appear in the same, and consent to the sale of the real estate in said petition described, as therein prayed for. And this appearance and consent by J. E. S., as guardian aforesaid, is on behalf of his said two wards. , No. 86. The decree and order of sale of premises and appoint- ment of trustees. Court of Common Pleas, County, Ohio. R. S., Plaintiff, vs. No. . G. M. S. and C. E. S., minors, J. E. S. as guardian of the estates of said G. M. S. and C. E. S., A. R., J. M. K. and C. H. K., Defendants. This day this cause came on to be heard, having been duly assigned for trial, upon the petition of plaintiff, the answer of the defendants, and the evidence. And the court upon due considera- tion thereof finds: That the allegations of the petition are true, and that the prayer therein should be granted; that the defendants, G. M. S. and C. E. E., minors over years of age, have both been duly and legally served with summons; that each and every one of the defendants herein have also entered their appearance in this cause, have filed their answer in the same, admitting the alle- gations of the petition to be true, and have each duly appeared and consented in writing to the sale of the premises in the petition de- scribed as therein prayed for. 201 FORMS. It is further found by the court that the sale of said real estate would be for the benefit of plaintiff, the said tenant for life, and do no substantial injury to the defendants holding the estate in remainder, reversion or expectancy. It is, therefore, directed, ordered, adjudged and decreed, by the court, that the said real estate, to-wit: (Here insert description of real estate), be sold for cash at private sale, for the best price obtainable, but in no event for less than $ , and in fee simple freed of the several interests of all the parties having any interest therein, and that the proceeds arising from the sale of said real estate be promptly reinvested in other good and substantial real estate located within this State, the title thereto being taken to R. S. for and during her natural life, and at her death then to the heirs of her body in fee simple. And J. E. S. is hereby appointed by the court as a suitable person and trustee to make such sale and reinvest the said proceeds in such other real estate as hereinabove provided, subject to the approval and confirmation of this court; and before entering upon the discharge of his duties in the premises, said J. E. S. is required to give an undertaking to the State of Ohio, with good and sufficient surety thereon, for the benefit of the plaintiff and defendants, in the sum of $ , conditioned for the faithful discharge of his duties under this appointment, and he shall report his proceedings as to the sale of said premises to this court within days for future order. And thereupon came the said J. E. S. and filed in this court his written acceptance of said appointment, and tendered and filed his bond as required, with The Company as surety, which bond is hereby accepted and approved by the court, and the clerk of this court is directed to issue an order of sale to said J. E. S., commanding him to sell said real estate as hereinabove provided. No. 87. The order of sale and the report of same. Court of Common Pleas, County, Ohio. R. S., Plaintiff, vs. No. . G. M. S. and C. E. S., minors, J. E. S. as guardian of the estates of said G. M. S. and C. E. S., A. R., J. M. K. and C. H. K., Defendants. The State of Ohio, County, ss.: To J. E. 8., Greeting: Whereas, at the term of the Court of Common Pleas of County, held at , in and for said county, on the day of , A. D., one thousand nine hundred and , in the cause of R. S., plaintiff, vs. G. M. S. et al, defend- MEKWINE ON liKAL ACTIONS. 202 ants, being cause No. , the said court entered a decree and order as follows, to-wit: "It is therefore directed, ordered, adjudged and decreed, by the court, that said real estate, to-wit: (Here insert description of real estate) be sold for cash at private sale, for the best price obtainable, but in no event for less than $ , and in fee simple freed of the several interests of all the parties having any interest therein, and that the proceeds arising from the sale of said real estate be promptly reinvested in other good and substantial real estate located within this State, the title thereto being taken to R. S. for and during her natural life, and at her death then to the heirs of her body in fee simple. "And J. E. S. is hereby appointed by the court as a suitable person and trustee to make such sale and reinvest the said proceeds in such other real estate as hereinabove provided, subject to the ap- proval and confirmation of this court; and before entering upon the discharge of his duties in the premises, said J. E. S. is required to give an undertaking to the State of Ohio, with good and sufficient surety thereon, for the benefit of the plaintiff and defendants, in the sum of $ , conditioned for the faithful discharge of his duties under this appointment, and he shall report his proceedings as to the sale of said premises to this court within days for further order." We therefore command you, that you proceed to carry said order, judgment, and decree into execution agreeable to the tenor thereof. And I certify under seal of court that the description of the property herein is correctly copied from the records of this case on file in this office. Witness my hand as clerk of our said Court of Common Pleas, and the seal of said court, at , this day of , A. D. 19 . The Report of Sale. In obedience to the order of sale hereto annexed, I did on the day of , 19 , after due and diligent effort to obtain a better price therefor, sell said real estate in said order of sale described, at private sale to , for the cash sum of $ , subject to the approval and confirmation of this court, which sum is the best price obtainable therefor and the reasonable value of the same. • The State of Ohio, County, ss.: J. E. S., being first duly sworn, says that he is the person here- tofore appointed and qualified by the court, in this cause, to make the sale therein ordered, and that the facts stated in his foregoing report are true. • Sworn to before me by J. E. S. ( and by him subscribed in my presence, this day of , A. D., 19 . 203 FORiMS. No. 88. The acceptance of appointment. Court of Common Pleas, County, Ohio. R. S., Plaintiff, vs. No> m G. M. S. and C. E. S., minors, J. E. S. as guardian of the estates of said G. M. S. and C. E. S. ( A. R., J. M. K. and C. H. K., Defendants. Now comes J. E. S., heretofore appointed by the court in this cause as a suitable person and trustee to make the sale and reinvest the proceeds heretofore ordered by this court, and hereby accepts the said appointment, and tenders herewith his bond for the faithful discharge of his duties, with The as surety. No. 89. The bond of trustee. Court of Common Pleas, — '■ County, Ohio. R. S., Plaintiff, vs. No. . G. M. S. and C. E. S., minors, J. E. S. as guardian of the estates of said G. M. S. and C. E. S., A. R., J. M. K. and C. H. K., Defendants. We, J. E. S.. of the City of , County of and State of Ohio, as principal, and The , as surety, acknowl- edge ourselves held and firmly bound unto the State of Ohio in the penal sum of $ for the payment of which we hereby jointly and severally bind ourselves. Witness our hands and seals, this day of , A. D., 19 . The condition of the above obligation is such that whereas the said Court of Common Pleas of County, Ohio, in the above entitled cause, has this day ordered and directed that the real estate described in the petition filed in said cause, be sold at private sale, for the best price obtainable, and the proceeds reinvested in other real estate located in this State, and whereas the above bound J. E. S. was duly appointed by said court as a suitable person and trustee to ' make such sale and reinvestment, subject to said court's approval and confirmation. Now, therefore, if the said J. E. S. shall faithfully discharge his duties as such appointee and trustee, according to law, and in obedience to the orders of said court, and faithfully reinvest the monies arising from such sale, then this obligation is to be void, otherwise, to remain in full force. J. E. S., The & Co., By F. T., Its Attorney in fact. MERWTNB ON REAL ACTIONS. 204 No. 20. The entry confirming sale and ordering trustee to pur- chase other real estate. Coubt OF Common Pleas. County, Ohio. R. S., Plaintiff, vs. No. . G. M. S. and C. E. S., minors, J. E. S. as guardian of the estates of said G. M. S. and C. E. S., A. R., J. M. K. and C. H. K., Defendants. This day came J. E. S., appointed herein under a former order of this court, to make sale of said real estate, and reported his proceedings and sale of said real estate under said order to , the purchaser, which report is filed herein; and the court having carefully examined said report and proceedings, finds that said sale was fairly conducted and made, in all respects as prescribed and required by said order, that the price obtained is the reasonable value of said estate so sold, and doth hereby approve and confirm said sale; and orders and directs a deed of conveyance of said premises, so sold as aforesaid, to be made by said J. E. S., who is hereby appointed special master commissioner for that purpose, to said pur- chaser, , on payment of the said purchase price of $ . And it is further ordered and directed by the court that said J. E. S. ( as trustee, heretofore appointed, proceed promptly to reinvest said purchase money so obtained, in the following manner: To seek and find other good and substantial income-producing real prop- erty, located within this State, in which the same may be invested so as not to prejudice the value of said fund to any of the parties in interest; that when such investment is found, he enter into a provisional contract for its purchase, and report his proceedings, and the character and description of the property, before consum- mating such purchase, to this court for approval and further order. No. 91. The report of trustee as to investment. Coubt of Common Pi. has, County, Ohio. u. s., I'Ui in tiff, vs. No. . G. M. S. and C. E. S., minors, J. i: S a guardian of the estates of Bald G M 8. and C. B. S.. A. R., J. M. K. and C. n. K . I>< f i mill ii Is. I. E. S., heretofore appointed in this cause to make a sale of tin- premised described in the petition, and having sold the same 205 FORMS. for $ , under the former orders of this court, and having been ordered to reinvest said proceeds in other income-producing real estate in this State, now comes and reports to the court: That he has purchased with said proceeds, subject to the ai>- proval ol this court, from C. C. A., R. D. A. and M. B. A., the owners, the following described real estate, situate in the City of , in the County of , and in the State of Ohio, and (Here insert description of real estate) that said premises consist of a lot fronting feet on the side of Avenue of said city, and extending to a depth of feet, on which are erected a stable and a dwelling, composed of — — rooms, bath room, attic and basement, on each side. Said dwelling has porch across the entire front, is roofed with slate, and is plumbed for hot water and natural gas heating. Said premises have a rental of about $ per month, are worth $ , and are to be free and clear of all encumbrances, but subject to certain restrictions as to buildings and the sale or manufacture of intoxicating liquors. Said investment is the best one obtainable, and said J. E. S. hereby asks approval of said purchase, and authority to expend said proceeds in payment thereof. State of Ob-' C-unty, ss.: J. E. S., being duly sworn, says that the facts stated and alle- gations contained in his foregoing report are true, as he believes. Sworn to before me and subscribed in my presence, this day of , 19 . As Notary Public, — County, Ohio. No. 92. The order of court approving investment. Court of Common Pleas, County, Ohio. R. S.. Plaintiff, vs. No. . G. M. S. and C. E. S., minors, J. E. S. as guardian of the estates of said G. M. S. and C. E. S., A. R., J. M. K. and C. H. K., Defendants. This day this cause came on to be heard upon the report of J. E. S. this day filed, as to the purchase of lot No. ■ of Addition in the City of , County, Ohio, was duly considered with the former proceedings herein, and the evidence. And the court having carefully considered the same, and being fully advised in the premises, doth find that said purchase has been MERW1NE ON RE.4L, ACTIONS. 206 properly made and in all respects in conformity to law and the former order of this court, and that said investment is the best one obtainable and will be for the best interest of all the parties concerned. It is therefore ordered, adjudged and decreed that said purchase and investment be, and the same is hereby approved and confirmed; and said J. E. S. is ordered to consummate said purchase as reported by him, and make said investment, by paying therefor the proceeds arising from the sale heretofore made, and having title conveyed free and clear of all encumbrances, by general warranty deed from the said present owners, to R. S. for and during her natural life, and at her death then the same to go to the heirs of her body in fee simple; and that said real estate shall have the same character and be governed by the same principles of law as the estate here- tofore sold. And said purchase and investment being consummated, the said J. E. S. and his bondsman stand discharged. No. 93. Another form for a petition of tenant for life for sale of estate. Court of Common Pleas. County, Ohio. Plaintiff, vs. Petition No. and , Defendants. On the day of , 19 , died, leaving a will, by the terms of which he gave to his widow, said , the life estate in the real estate hereinafter described, a copy of which will and the probate thereof is hereto attached, marked Exhibit "A,." and made a part hereof. Following is a description of said real estate: (Here describe it). By said will, said testator gave remainder over, in said real estate, to , and , his sisters, and to , in trust for his niece, , wife of , and to his brothers, — ■■ , , and , and to his nephew, , their heirs and assigns forever, share and share alike, all of whom are made defendants herein, the share of said to be held by se'd trustee for her benefit during her life, and after her death to pass to her brothers and sisters, children of and , share and share alike. Afterwards, to-wit: on the day of , 19 , the said ; on the day of , 19 , the said ; and on the day of -, 19 , the said and , sold and conveyed their respective interests and estates to the said real estate to the plaintiff, and on the day of , 19 , the children of said and 207 FORMS. sold and conveyed their said interests in said real estate to said defendant , so that said real estate is now owned and held as follows: The plaintiff owns the life estate in the entire property under said will; and also the fee simple of the one undivided half by purchase as aforesaid. Said defendant, , owns the fee of part thereof subject to the life estate of said plaintiff under said will. The said owns the fee of part thereof, subject to said life estate of the plaintiff. The said owns the fee of part thereof subject to said life estate. The said owns the fee of part of said real estate subject to the life estate of the plaintiff under said will, by purchase from the children of and . The plaintiff also avers that the sale of said undivided half of said premises of which she owns the life estate with the remainder over, as aforesaid, will be for her benefit, and do no substantial injury to the said owners of the remainder, and if the court shall find that such sale shall be more to the interest of said owners in remainder, she is willing and hereby consents that said entire real estate shall be sold. Wherefore the plaintiff prays that the court may direct the sale of said real estate, either said undivided part in which she owns the life estate, or the whole thereof, to be made in such manner and upon such terms as may be to the best advantage of all the parties, and to appoint a suitable person or persons to make the same, and that the proceeds of said sale be invested for the parties, according to their respective interests, under and according to the statute in such cases made and provided; and for all proper relief to which the plaintiff in law or in equity may be entitled. Attorneys for Plaintiff. The petition should be verified. Note. — Adapted from Yaple's Code Practice. Subject: — Sale of Entailed and Other Estates. CHAPTER V. SALE OF REAL ESTATE BY AN ADMINISTRATOR TO PAY DECEDENT'S DEBTS. SECTION. 200. Nature of the proceeding and care required of counsel conducting the same. 207. In what court and how the application shall be made. 20S. Determination of equities and priorities — Distribution — Order for release of liens — Fees applicable to guar- dian-, assignees and other trustees. 209. When an executor or adminis- trator to apply for a sale of real estate ti> pay debts. 210. Real estate may be sold by executor or administrator for the payment of legacies. 211. The statute of limitations as tn such actions. 212. What interest and estates in leal estate may l>e sold — Sale of equitable estate. 2i:;. Heal estate fraudulently con- veyed is liable to sale. 214. How executor or administra- tor to get possession of land fraudulently conveyed and avoid such conveyances — When such action must lie brought . 21.">. What are debts within the terms of I he 3tatu1 ■ au- thorizing such sale. 210. Administrat r de hotiis non to complete proceedings begun by his predecessor. 217. What the petition for such real estate must contain. 218. When assets of decedenl will he mar-haled in <■ informity to will. 219. Sale prevented, how. 220. Procedure incidental to the action. SECTION. 221. Service of summons and waiver — Legal guardians may consent — Other pro- ceedings. 222. When guardian ad litem to be appointed — They have no power to consent. 223. Court to order real estate to be sold when — Terms of sale and conduct of trial if contested. 224. Heir by private sale of the real estate will not defeat right of persona] represen tative to sell. 225. The estate of the heirs in the lands set oil' to the widow to be sold. 220. The whole of the real estate to be sold when a partial sale would injure the resi- due. 227. When further bond will be re- quired of the administrator or the executor. 228. Awarding of costs when there are objections to the sale. 22'.). Appraisement when no dower i- to he assigned. 230. Appraisement of the real es- tate — Duty of appraisers as to dower and homestead — Where lands in two or more counties. •_'."» I . Dower especially assigned to lie a charge on the land. 232. Vacancy in appraisers — How tilled. 233. Oath of appraisers — Certifi- cate thereof — View ami re- turn — Compensation of ap- praisers. 20S 209 SALE OF REAL ESTATE TO PAY DECEDENT 's DEBTS. § 206 Sec. 206. Nature of the proceeding and care required of coun- sel conducting 1 the same. We now conic to a proceeding for the sale of real estate, purely statutory, and which, though it be a civil action, and adversary in its character, yet it is of such a nature as to lead counsel who may be conducting the proceeding to think it ex parte in its nature, not requiring any particular care and attention. This action to sell the real estate of a decedent to pay his debts, ought to require great care and attention at the hands of the personal representative of the deceased and his counsel. Carelessness upon the part of both, and by our courts in such proceedings, has been the source of many de- fective titles in this State, and has been prolific of vexatious and expensive litigation. Because the action is seldom con- tested, the petition is carelessly prepared, orders are asked for and given without investigation, and parties are not made defendants and served who should have been made defendants and brought into the case. The persons who examine real estate titles in this State, when scrutinizing title coming through an executor or administrator's proceeding to sell real estate to pay debts, knowing how careless counsel is apt to be in such cases, scrutinize the proceedings, from the filing of the petition to the deed to the purchaser, with the greatest care. Too much cannot be urged upon the bench and bar of this State to attend to such proceedings with the utmost care. The following on this topic was quoted with approval by Judge Rockel in his most excellent Avork, The Complete Ohio Probate Practice : "While it is manifestly the policy of the law to uphold judicial sales made without fraud, so as not to deter purchasers by encouraging the apprehension that their substantial rights and interests may be sacrificed to technical considerations — while courts will go very far to insure protection to innocent purchasers in collateral proceedings, even in cases of gross error arising out of blunders or carelessness of probate courts or their officers — it is obviously of the greatest importance that every step taken in subjecting the real estate to sale for the payment of debts be as nearly as possible in literal com- pliance with the method pointed out by the statute upon which the proceeding is based. Where particular forms are pointed out for the execution of a power, however immaterial they § 206 MEBWINE ON REAL ACTIONS. 210 may appear in themselves, these forms are conditions that cannot be dispensed with. It is a pernicious error, fruitful of trouble and mischief, to suppose that any vague inefficient statement of circumstances is sufficient to authorize an order of sale of real estate, if the applicant and the judge know all about the matter; or that the good faith and honesty with which the application is made nre a sufficient safeguard against ruinous complications and litigation that may follow an over- sight or mistake. The anxioty of courts to vindicate the validity of judicial sales should not be relied upon as a pretext for the carelessness of executors or administrators, or the supineness of probate courts, in the several steps necessary for the sale of real estate. Even if the sale should be good as against collateral attack — and it is distressingly uncertain as to what extent the trial and even appellate courts will go in this direction — yet many acts of commission or omission, which will not be allowed to invalidate the transaction in a collateral investigation, may in a direct proceeding subject .the administrator to serious liability, the estate to loss and delay, and all parties concerned to vexatious and oftentimes ruinous litigation. No part of an administrator's duty claims more careful attention and demands more imperatively the advice and assistance of a competent professional man than his relations to, and duties concerning, the real estate of the deceased." 1 The personal representative, at common law, had no power to sell decedent's real estate to pay debts, and whatever power such representatives now have in this State comes to them by legislative enactment. 2 Under the early practice in this State, and before the adoption of the code, it was a proceeding in rem in which i Woerner <>n Admr., 1021. citing res* v. Smith. 10 I'd. 161; Knox Alabama v. Price, 42 Ala. :{!); Kel- v. .Tenks, 7 Mass. 4SS; In re Ma- ley's Estate, 1 Abb. New Cases, 102; hony, 34 Bun, 501; Lynch v. Worthy \. Johnson, 8 Ga. 236; Hi. 'key. 13 111. App. 139; Wright v. Finch v. Edmenson. !' Tex. 504; Edwards, 10 Oregon, 298; Long v. Frazier v. Stenrod, 7 Iowa. 339; Long, 142 N. V. 545. State v. Conover, 9 X. J. L. 338; -Lessee v. Barrows, 2 O. S. 242: Gross v. Howard, 52 Me. 192; Hay- Ludlow v. Johnson, '.1 O. 553; Paine wood v. Hayw 1. 80 X. C. 42; v. Skinner, 8 O. 159; McCall v. Pix- Monahan v. Vandyke, 27 111. 1">4: ley, 48 0. K. 379; Doan v. Bitely, Gelstrop v. .Moure. 26 Miss. 206; 49 O. S. 588. Vance v. Marony, 4 Cal. 47; Vent- 211 SALE OF REAL ESTATE TO PAY DECEDENT 's DEBTS. § 207 minor defendants were not required, as now, to be served with process and required to answer. Now the action, whether begun in the common pleas or the probate court, is a civil action, and it is adversary in its nature. 3 Sec. 207. In what court and how the application shall be made. In order to obtain such authority, the executor or admin- istrator is required to commence a civil action in the probate court, or court of common pleas of either the county in which the real estate of the deceased, or any part thereof, is situate, or of the county in which was issued his letters testamentary or of administration. 4 This statute gives these two courts concurrent jurisdiction to hear and determine the action. The court in which the action is first filed and the summons issued, nncler a well settled principle of law, will have power to entertain the action to the exclusion of the other, providing there is no special reason requiring one or the other court to hear and determine the action. Aside from this principle there are several matters in connection with, and arising out of, such sales, that cannot be heard and determined by the probate court. The courts of probate in this State have several equity powers but these are limited. Where it is necessary to correct a deed, cancel a mortgage or other lien, set aside a fraudulent conveyance, and in all cases where the chancery court powers are required to be invoked, the better practice is to file the petition in the court of common pleas. This latter court unquestionably has the power to settle all questions of title, and purchasers will be encouraged to buy at the sale. Unless all questions of title are heard and determined, prior to the day of sale, the property will not bring its fair value at such sale. But in all cases where there is nothing to be determined in the action but the right of the personal representative to sell the real estate of the deceased to pay his debts, then there are several reasons why the action should be brought in the probate court. The proceedings can be conducted by that court more expeditiously. sRockel's Complete Ohio Probate 0. 368; Benson v. Cilly. 8 0. S. Practice. 8 812. citing Robb v. Ir- 604; Biggs v. Dickie, 12 0. S. 472. win, 15 O. 689; Sheldon v. Newton, ^(ien'l Code, §10775 (R. S. 3 0. S. 494; Snevely v. Lowe, 18 § 6137) ; see also Gen'l Code, § 10493 (R. S. §525). 5 207 merwine on real actions. 212 This court is always in session, and decrees and orders can be taken there when they cannot be taken in the common pleas court. Again, tbe probate court has charge and control of the persona] representative, and being more familiar with the estate, and with the question as to wmether there are debts requiring a sale of the real estate, the action had better be brought in that court. In the note below will be found a further discus- sion of this subject. 3 In discussing the equity powers of the probate court in an action of an administrator to pay decedent's debts, our Supreme Court said : "Our statutes are broad enough, we think, to authorize the probate court to determine all <|uestions of law and fact arising in actions brought before it by executors and administrators to sell real estate for the payment of the debts of the estates they represent. The power to order the real estate of decedent to be sold by necessary implication includes the power to decide whether the laud, the sale of which is sought in the action, was the property of the deceased." ° From the foregoing we see that the probate court in such actions has certain equity powers. This power is evidently based upon the theory that such court has full power to hear and del ermine all questions in such proceedings to sell real estate, unless such authority is expressly denied, because the power of the court in such cases includes not only those powers that are expressly granted, but also all those powers that are necessary to carry them into effect. Furthermore, as is disclosed by the next section, the statute expressly, in such actions, gives the probate court certain equity powers. ""The policy of our legislation has long been opposed to the neces- sity of a resort to different jurisdic- tions ami multiplicity of actions in order to obtain the full and final relief to which parties may be en- titled, and in favor of clothing trib- unals once acquiring control of the subject mutter of controversy, and of the parties, with jurisdiction, if capable of exercising it. to determine the ultimate rights of the parties, and administer to them their com- plete remedy. The policy is a com- mendable one with which the statute making actions like that under con- sideration, civil actions, and giving the probate court co-ordinate juris- diction with the court of common pleas, is in harmony." Doan \. Bitely, in 0. S. 594; see also on this subject The Complete Ohi > Probate Practice, Vol. 1, § 815, citing Bank v. Tde, 20 C. C. 665; Stone v. Stone, 42 0. S. 53; Bank v. Carpenter, 7 0. 21. e Dean v. Bitely, -10 0. S. 588; Haven v. Horton, 53 O. S. 345. 213 SALE OF REAL ESTATE TO PAY DECEDENT 's DEBTS. § 208 Sec. 208. Determination of equities and priorities — Distribu- tion — Order for release of liens — Fees applicable to guardi- ans, assignees and other trustees. The probate court or court of common pleas in which such action may be pending, have full power to determine equities between parties and the priorities of lien of the several lien- holders on said real estate; and to order a distribution of the money arising from the sale of such real estate according to the respective equities and priorities of lien as found by the court. When the action is determined by the probate court, the judge thereof must make the necessary order for an entry of release and satisfaction of all mortgages and oilier liens upon said real estate, and must enter such release and satisfaction, together with a memorandum of the title of the case, the character of the proceedings and the volume and page of record, where recorded, upon the record of such mortgage, judgment or other lien in the office where the sume appears as matter of record: and he shall tax in his cost bill the fee pro- vided by law for entering such release and satisfaction ; and also a fee of twenty-five cents to himself for such entry. The provisions of this section apply as well to proceedings by guardians, assignees and trustees to sell land to pay debts. 7 Sec. 209. When an executor or administrator to apply for a sale of real estate to pay debts. As soon as the executor or administrator ascertains that the personal estate in his hands will be insufficient, to pay all the debts of the deceased with the allowance to the widow and children for their support twelve months and the charges of administering the estate, it is made his duty to apply to the probate court or the court of common pleas for authority to sell the real estate of the deceased. 8 Sec. 210. Real estate may be sold by executor or administrator for the payment of legacies. When a testator shall have given any legacy by will that is effectual to pass or charge real estate, and his personal estate 7 Gen'l (ode. §10783 (R. S. sGen'l Code, §10774 (R. S. S 0145) . See No. 100 for form set- §6136). ting up mortgage by cross petition. §211 MERWINE ON REAL ACTIONS. 214 shall be insufficient to pay such legacy, together with his debts, the allowance to the widow and children and the costs of administration, the executor or administrator with the will annexed may be ordered to sell his real estate for that purpose in the same manner and upon the same terms and conditions as are prescribed herein for the payment of debts. 9 Sec. 211. The statute of limitations as to such actions. The statute does not give the personal representative any discretion as to the tiling of the petition. When there are debts and legacies, as set forth in the above statutes, to be paid, and there are no personal assets or the personal assets are in- sufficient to pay the same, the petition must be tiled to sell the real estate of the deceased to pay the same, unless bond is given by the heirs or the parties interested, as herein shown, to pay the debts. 10 And should he not do so, the court on its own motion, should require him to do it ; and if after notice, he still neglects or refuses, he should be discharged without compensation for his services. It follows, of course, that any creditor can, by application to the court, require the admin- istrator or executor to file the petition in a proper case. But in case the personal representative should not file the petition, it has been held that, as between the estate of a deceased debtor and the creditors thereof, the statute of limitations does not run against their claims, after they have been presented to, and allowed by, the executor or administrator. 11 And where an action is begun under the code for the partition of real b Gen'l »'oile, §10817 (R. S. §017-2 i. io See No. 127 for form of bond. ii Tayli r v. Thorn, 2'.) 0. S. 569. Tlic functions and duties of an ad- ministrator do ii"t cease until the estate is fully settled. McAflfee v. Phillips, 2.". 0. S. 374. ••'I he adminisl i ator of T., who died insolvent, applied in 1853 to the probate court for, and procured ;m order to sell the lands of T. to pay debts. T. having Ief1 a widow and minor children, unmarried, and composing a part of Ms family, a homestead in said lands was Bel apart for their occupancy, l>y metes and bounds. All the remaining property of the decedent, both real and personal, was sold, and the proceeds applied to the payment of the debts againsl the estate, leav- ing a per centum of said debts un- paid. In .March, L876, the children of T. having arrived at full age, said administrator, by supplemental pe- tit inn. applied to said probate court for an order to sell the premises so gel apart for such homestead, for the purpose of paying the unpaid balance of said debts. Held, that the administrator was entitled to auch order." Taylor v. Thorn, 29 0. S. 570. 215 SALE OF REAL ESTATE TO PAY DECEDENT 's DEBTS. § 212 estate in which the administrator of decedent files his answer and cross-petition, alleging that it is necessary to sell the real estate to pay debts of the ancestor, and asking for an order of sale, such administrator is, upon proof of such unpaid debts, entitled to an order of sale, and the statutes of limitation have no application in favor of such heirs. 12 The principle set forth in this section as to the statutes of limitation would require counsel who may be examining title to real estate once owned by a deceased at the time of his death, to look well into the matter of the claims presented and allowed by the personal representative; for all such claims, when presented and allowed by the personal representative, are in the nature of liens on decedent's real estate, against which the statute will not run, and which can be enforced at any time, no difference in whose hands the real estate may in the meantime have come. Even a settlement of the estate, supposed to be a final settle- ment, will not relieve real estate of the deceased from being sold by the administrator on the discovery by him of unpaid claims against decedent's estate. 13 So it would seem from the authorities that the personal representatives have the right to bring the action to sell decedent's real estate so long as claims which have been pre- sented and allowed, remain unpaid. Sec. 212. What interest and estates in real estate may be sold — Sale of equitable estate. As the statute requires the real estate of decedent to be sold to pay debts, there can be no question but that all fee simple estates may be sold for such purpose. This will also include permanent leasehold estates, renewable forever. 14 i^Lafferty v. Shinn, 38 O. S. 40. tion, Jackson v. McGruder, 51 IVTo. 13 See in this connection, 1 Com- 55; Kenly v. Bryan, 110 111. 562; plete Ohio Probate Law and Prac- Jennings v. Jenkins, 9 Ala. 285; tice, § 817, citing Ricard v. Wil- land entries paid for but no patent Hams, 7 Wheat. 59; Yandell v. issued, Avery v. Dupue, 9 0. 145; Pugh, 53 Miss. 295; Woerner, lands having no record title, Wood; Admr., 1027, 1028; Ward v. Bar- v. Monroe, 17 Mich. 238; land con- rows, 2 O. S. 241; Farron v. Robin- veyed by heirs, Fiscus v. Moore, son, 17 O. S. 242. 121 Tnd. 547; Scher v. Ingerman, 14 Complete Ohio Probate Prac- 110 Ind. 428; Smith v. Anderson, tice, §820, citing the following in- 31 0. S. 144; Carter v. Lee, 51 Tnd. stances of what may be sold; land 292; Ferguson v. Carter, 9 Mo. App. given away. McGellicuty v. Cook, 497; Fike v. Guen, 64 N. C. 605. 5 Blackf. 179; an equity of redemp- § 213 MERWINE ON REAL ACTIONS. 216 The statute provides that when a petition is filed for the sale of an equitable interest which the deceased held in any lands, the executor or administrator must set forth in the petition the nature of such equitable estate or interest, making all necessary parties, including the persons holding the legal title thereto, and those who are entitled to the purchase money therefor; and ihe court may in such case notwithstanding the preceding provisions of this title make such order for the ap- praisement and sale of such equitable estate for the indemnity of the estate of the deceased against the claim for such pur- chase money, and for the adjustment of the dower of the widow of the deceased in such equitable estate, by estimating and directing to be paid to her the value of a life annuity of one-third of such equitable estate or otherwise, as it may deem just and right between all parties in interest. 15 Where the decedent may have taken real estate under a deed so defectively executed as to cause the legal title to be in another, decedent would still have such an equitable in- terest in the real estate as to authorize his personal repre- sentatives to be entitled to sell it for the payment of debts. 16 Sec. 213. Real estate fraudulently conveyed is liable to sale. The real estate liable to be sold as aforesaid will include all that the deceased may have conveyed with intent to defraud liis creditors, and all other rights and interests in lands, tene- ments and hereditaments: provided, that lands so fraudulently conveyed cannot be taken from anyone who purchases them for a valuable consideration, in good faith and without knowledge of the fraud: and no claim to land so fraudulently conveyed can be made unless within four years next after the decease of the grantor. 17 i«Gen'l Code. §10811 (R. S. § fil.30) . Sco No. !>4 for form for §6166). petition in such case. Sec No. 94 i« Williams v. Spriggs, < '. C. 587. Express words are not neces- sary. Clyde v. Simpson, 4 ( ). S. 445; see also upon this point Moore 219 SALE OP REAL ESTATE TO PAY DECEDENT 's DEBTS. § 216 Sec. 216. Administrator de bonis non to complete proceedings begun by his predecessor. If the executor or administrator who has commenced such action for the sale of real estate die, resign, or be removed or his power ceases at any time before the conveyance of the same, under an order of the court, the administrator de bonis non must proceed with such sale, and may convey the lands sold before or after his appointment and may be required to give an additional bond in the like manner as if such admin- istrator de bonis non had filed a petition. 25 Should an administrator de bonis non be required to com- plete the proceedings to sell as is authorized by this statute, there should be placed upon the court's journal an entry show- ing the facts of the death of the first administrator, and the appointment of another in his stead. 26 Sec. 217. What the petition for such sale of real estate must contain. The petition must, in all cases, set forth the amount of the debts due from the decedent as nearly as they can be ascer- tained, and the amount:' of charges of administration, the value of the personal estate and effects, and a description of the real estate, and the value thereof, if appraised. 27 The petition should allege the giving of the bond by the personal representative, and the amount of it. It is necessary to make the allegations concerning the appraisement and the bond, because if the real estate was appraised, according to law, at the time of the appraisal of the personalty, no new appraisement is required, and if the first bond is insufficient to cover the amount of the proceeds of the sale of real estate, the court will require the additional bond. If the action is begun by an executor or an administrator de boitis non, the appointment should be alleged, the probate v. P.eckwith, 14 O. S. 129; Longley §6141). See No. 115 for form of v. Stump, 11 W. L. B. 247; Wil- petition in the probate court to- liams v. Williams, 8 O. S. 300. gether with forms for all other 25 Gen'l Code, §1077(1 (R. S. \ leadings, writs, process, judgments, §6138). orders and papers required to pass 26 For form of such journal entry title to the real estate from the pe- see Complete Ohio Probate Practice, tition to the delivery of the deed by Vol. 1, § 836. the personal representative to the ^Gen'l Code, §10779 (R. S. purchaser. § 217 MERWINE ON REAL ACTIONS. 220 of the will and the dates of each, together Avith the qualifica- tion of such executor and administrator, and his acting as such at the time of the filing of the petition. As the action is a civil action, adversary in its character, the pleader should observe the rule that all of the facts to be alleged should be stated in ordinary and concise language, and that the rules of code pleading should be observed. The rights of everyone having any interest in the real (-state should be protected. To the end that the court may know how to protect such rights, everyone who has an interest in the real estate should be made a party to the action. Should there be any unexpired leases outstanding against the real estate, these should be alleged, giving detailed facts, and the lessees thereof should be maele parties defendant. If there is a widow entitled to dower, or homestead, or both, these facts shoulel be alleged and the widow made a party defendant. If anyone is a joint tenant with the decedent, his title thereto should be alleged and the joint tenant made a party. The widow of the eleceased anel the heirs, devisees or persons having the next estate of inheritance from the eleceased and all mortgagees anel other lienholders, whether by judgment or otherwise, of any of the lands sought to be sold, anel all trustees holding the legal title thereto or to any part thereof; and when a fraudulent conveyance is sought to be set aside in such action, all persons holding or claiming thereunder shall be maele parties. 28 In actions of this kind, and in all actions, the ultimate object of which is to sell real estate by judicial decree, counsel should keep steadily in mind one important requisite: it is to give the purchaser good title, cutting off all claims that are an incumbrance so as to encourage persons to bid at the sale, and so as to bring the highest price for the real estate. To this end counsel, before bringing the action, should search the records for all parties holding claims against the real estate, and these should be maele parties defendant anel required to set forth Iheir claims under penalty of having the same helel null and void, in case they should neglect to assert the same in the action. It is essential that all lienholders by mortgage, 28 den'I Code, § 10780 (R. S. unfounded claim against the real es- §11142). See § r>!> for the proper tatc. allegations to cut out any alleged 221 SALE OE REAL ESTATE TO PAY DECEDENT S DEBTS. §218 mechanics' lien, vendors' lien, execution lien, tax lien, assess- ment lien, alimony lien, a lien by a legacy which is so made by will, and all of the many liens known to the law, should be made parties to the action, and the nature, priority, and amount thereof fixed and determined by the court in the action. Pur- chasers at judicial sales are held to the maxim caveat emptor and for their protection the real estate is sold free of all the liens and claims against it, the amount of the respective liens attaching to the fund arising from the sale.'"' Sec. 218. When assets of decedent will be marshalled in con- formity to will. If there should be in the last will of the deceased any dis- position of his estate for the payment of his debts or any pro- vision that may require or induce the court to marshall the assets in any manner different from that which the law would otherwise prescribe, such devises or parts of the will are re- quired to be set forth in the petition and a copy of the will is required to be exhibited to the court and the assets marshalled accordingly, so far as it can be done consistently with the rights of the creditors. 30 Sec 219. Sale prevented, how. An order for the sale of real estate will not be granted if any of the persons interested in the estate give bond to the executor or administrator in a sum with sureties to be approved of by the court with condition to pay all the debts mentioned in the petition that may eventually be found due from the estate with the charges of administering the same and the allowances in money to the widow so far as the personal estate of the decedent will be insufficient therefor. 31 29 See Xo. 04 for form of such pe- tition where fraudulent conveyance is to be set aside and the action is in the common pleas court. See No. 115 for form of petition in pro- bate court. See Complete Ohio Pro- bate Practice. Vol. 1, §830, for a good form of petition. See Xos. 115, 140, 194, 204 and 262 for forms of answers of widow demanding dower by metes and bounds and waiving dower in real estate and asking endowment out of proceeds of sale: see also Xo. 371 et seq. for procedure where the action is brought for the purpose of having an assignment of dower. soGen'l Code, §10791 ( U. S. §6152). siGen'l Code, §107*5 ( K. S. §6146). See Pockers Complete Ohio Practice, Vol. 1, § 828, for form of order of court when such bond is given. § 220 MERWIKE ON REAL ACTIONS. 222 I: has been held that where an order of the court was ob- tained by an executor for the sale of lands to pay the debts of the estate, and after the granting of the order, and in con- sideration that the executor would forbear to carry it into execution, a bond was executed on behalf of the heirs con- ditioned that the obligors would pay the debts of the estate, that the bond, although not in strict conformity to the statute which provides that if such a bond be executed before the order of sale no order shall be granted, is nevertheless binding upon the obligors, and may be enforced against them by the executor. 32 Again, a widow, having a dower interest in the real estate of her deceased husband, is sufficiently interested in the estate to entitle her, in connection with one or more of the heirs of said estate, to give bond provided for by Gen'l Code § 10784 (R. S. § 6145), to obviate a sale of such real es- tate to pay debts, etc., by the administrator; and having in good faith given such bond, and as required by the conditions thereof, paid to the administrator the aggregate amount of the valid debts of the decedent and the charge of the administra- tion, is not to be regarded as a mere volunteer, but is entitled to be subrogated to the rights of the administrator, and fully reimbursed from a fund arising from the sale of such real estate in a proceeding in partition by the heirs. 33 Sec. 220. Procedure incidental to the action. For law and procedure connected with the issuing and service of summons in the action, how defendants may volun- tarily enter their appearance to the action, how service is had by summons on a resident of the county, and residents of other counties in the State, how service of summons is made by pub- lication on non-residents of the Stale, and by copy of the petition, how the copy of the newspaper is to be mailed and the dockel entry showing the same, how service is made upon unknown heirs by publication, and how corporations, partners, and infants are served and how and when guardians ad litem arc appointed to defend for infants, and a full discussion of the same, and how such guardians ad litem must plead and defend, how insane persons are def( wd^d in such actions, and 32Davisson v. Burgess, 31 0. S. 33 Corey v. Hayes. 13 C. C. 185. 78. 223 SALE OF REAL ESTATE TO I'AV DECEDENT'S DEBTS. §221 the limes when summons are returnable in such actions and the time when answers and cross-petitions should be filed, and the filing of precipes in such actions, see the first chapter of this book for full discussion. Sec. 221. Service of summons and waiver — Legal guardians may consent — Other proceedings. Service either actual or constructive may be made in the same manner as other civil actions, provided that if all person-; in interest consent, in writing, to the sale, service of process may be dispensed with; and legal guardians may sign such consent for their wards, except guardians of the persons only of minors; or unless otherwise ordered by the court, the sum- mons may be served by the plaintiff or other person by copy personally and the return of such service must be verified by the oath of the person who makes the same and all proceedings in the action in either court will be the same as in other civil actions except as otherwise herein provided. 34 Sec. 222. When guardian ad litem to be appointed — They have no power to consent. It shall not be necessary, unless the prayer of the petition for a sale is contested, to appoint guardians ad litem for infant heirs or devisees or other persons having the next estate of in- heritance from the deceased who are defendants; and no such guardian will have authority to waive notice or service of summons. 35 Sec. 223. Court to order real estate to be sold, when — Terms of sale and conduct of trir 1 if contested. If the court is satisfied that it is necessary to sell real estate of the deceased to pay his debts, it will order the real estate or so much thereof as may be necessary for the payment of the 3*Gen'l Code, §10781 (R. S. pointing guardians ad litem and §6143). their answers. See Nos. 311, 312 ssGen'l Code, §10782 (R. S. and 313 for forms for appointment §6144). See §§39 to 44 inclusive, of trustee to defend for an insane for general discussion of the person and No. 143 for form of or- law applicable to the appoint- der appointing such trustee, and ment and duties of guardians ad No. 145 for form of answer of such litem generally. See Nos. 102, 103, trustee. 143 and 144 for forms of orders ap- §§ 224-226 MERWINE ON REAL ACTIONS. 224 debts to be sold by the executor or administrator upon deferred payments not exceeding two years with interest. 30 The proceeding, if contested, is tried as any other civil action. The same rules for the introduction of evidence applies as in a civil action. When the pleadings present an issue of fact re- quiring, on demand by any of the parties, the intervention of a jury, the probate court is authorized to take the necessary steps to impanel a jury for that purpose, by issuing an order for the clerk of the common pleas court to secure a jury from the jury box. 37 In such actions there is grave doubt whether an issue of fact arises for the jury to decide. It is for the court to decide whether there are debts which demand a sale of the real estate. It has been held that where the action is begun in the common pleas court, the parties are not entitled to a jury and the action is appealable/ 1 " Sec. 224. Heir by private sale of the real estate will not defeat right of personal representative to sell. In a well considered case it was held that it is no bar to an action by an administrator to pay debts, that the heir lias, without an order of the court, sold the same at private sale and applied the proceeds in satisfaction of preferred claims/"-' Sec. 225. The estate of the heirs in the lands set off to the widow to be sold. Tin- court may include in its order of sale the title of the heirs or devisees of the deceased in the premises set off to the widow for her dower which may be sold subject to the life estate of the widow therein. 40 Gee. 226. The whole of the real estate to be sold when a partial sale would injure the residue. If it be represented in such petition and appear to the court, that it is necessary to sell some part of the real estate and ■■•■'•• Gen'1 Code. §10786 (R. S. tice, Vol. 1. §409, for order and 56147). See Nos. 105, L26, 128, form to draw jury, ltl fcr forms. See No. 162 form ssDalton v. Davis, is C. C. 87S. of onicr of court fixing price ai soSidener v. Bawes, .'!7 <). s. 532. which real estate maj be sold. 40r.cn'] Code, §10787 (R. S. 37Doan v. Bitely, 49 O. B. 588. §6148). See Complete Ohio Probate l'rac- 225 SALE OF REAL ESTATE TO PAY DECEDENT 's DEBTS. § 227 that by such partial sale the residue of the estate or some specific part or piece thereof would be greatly injured, the court nay order a sale of the whole of the estate or of such part thereof as the cour! shall think necessary and most for the interest of all concerned therein. 41 Sec. 227. When further bond will be required of the admin- istrator or the executor. When, in cases named "in the next preceding section, the executor or administrator is ordered to sell more than is neces- sary for the payment of the debts, he will be required before the sale to give bend with sufficient sureties payable to the estate, conditioned to account for all the proceeds of the sale that shall remain, at' er the payment of the debts and charges for which the land must be sold and to dispose of the same according to law. 42 The court may also require of any executor or administrator, if it deem it necessary, before snch sale to give an additional administration bond to secure the further assets arising from the sale of the real estate and the bond mentioned in this sec- tion, and the bond mentioned in the next preceding section, shall, when so ordered to be given, be given in the'eourt through which the letters were issued, and if the action is pending in another court, the latter court will proceed no further till there is filed therein a certificate from the former court under the seal thereof that such bond has been given as ordered. 43 Sec. 228. Awarding of costs when there are objections to the sale. If any party, in answer, object to the granting of an order for the sale of the real estate by an executor or administrator and on hearing it is made to appear to the court that either the petition or the objection thereto is unreasonable, it may. in its discretion award costs to the party prevailing -on that issue. 44 "Gen'l Code, §10788 (R. S. *3 Gen'l Code, §10790 (R. S. §6149). §6151). See No. 127 for form for « Qen'1 Code, §10789 (R. S. this bond. §6150). 44Gen'l Code, §10792 (R. S. §6153). §§ 229, 230 MERWINE ON REAL ACTIONS. 226 Sec. 229. Appraisement when no dower is to be assigned. The order of sale and appraisement may be made at the same time. If the deceased did not leave a widow entitled to dower in the estate to be sold and an appraisement of such real estate is contained in the inventory, the court may order a sale according to said appraisement or order a new appraisement. If the court do not order a new appraisement, the appraise- ment set forth in the inventory will be deemed the appraised value of the real estate ; but if the court order a new appraise- ment the value returned by such appraisers will be deemed the appraised value of the real estate. The order of sale and the order for the appraisement may be made at the same time if no assignment of dower is required. 45 The subject of appraisement is discussed in another part of this work. Reference is made to the same where will be found & statement of the law as to appraisements under executions and orders of sales of real estate, together with a review of the cases under this subject. Sec. 230. Appraisement of the real estate — Duty of appraisers as to dower and homestead — Where lands in two or more counties. Except where there has been a valuation of the real estate in the inventory, and the court dispenses with another ap- praisement, it is made the duty of the court, upon finding that a sale is necessary, to appoint three judicious, disinterested men of" the vicinity who are freeholders, to appraise the lands at their true value in money, and if the deceased left a family homestead and a widow or minor child or children, or both, entitled to have a homestead set od' pursuant to the provisions of Gen'l Code §§11732, 11733 (R. S. §5437), the court must order the appraisers to first proceed to set off and assign such homestead, and if the deceased left a widow entitled to dower in the premises, the court must also order said freeholders to set off mikI assign to her in each or in one or more of the tracts of land by metes and hounds one equal "• r 'On"l Code, § 10703 ( R. 8. and !<>!> and 125 for form eonnrm- §0154). See Niis. I(IC> and 122 for in<,' appraisement, form for order of appraisement; 227 SALE OF REAL ESTATE TO PAY DECEDENT 's DEBTS. § 230 third of the whole lands in which she is entitled to dower, as and for such dower and to appraise the whole premises either as a whole or in parcels subject to such homestead and dower, or in case there is no homestead, then subject to such dower so assigned, and in case there is no such dower then subject to such homestead. But, if on view, the appraisers find that the dower cannot be assigned they must then assign such dower or especially as of the rents and profits, and if the lands lie in two or more than one counties, the court may, if it thinks fit, appoint appraisers in more than one of the counties. In all cases a copy of the order to be executed must be issued to the executor or administrator and any lands subject to such home- stead and dower, or either, may be sold pursuant to the provisions of this chapter. 47 The subject of dower is fully discussed in another chapter in this book. By turning to this chapter the reader will find a dis- cussion of the statute on the subject of dower, together with a careful review of the decisions in this State on the subject. 48 The homestead statute mentioned above is as follows: "On petition of executors or administrators to sell, to pay debts, the lands of a decedent who has left a widow, or a minor child, unmarried, and composing part of the decedent's family at the time of his death, the appraisers shall proceed to set apart a homestead as provided in the next section, and the same shall, except as otherwise provided in Gen'l Code §§ 1079-1, 10795, 10796, (R. S. § 6155), remain exempt from sale on execution, and exempt from sale under any order of the court so long as the widow, if she remains unmarried, or any unmar- ried minor child of said decedent resides thereon; provided, that in all case where the homestead has been or shall be sold to pay any lien which precludes the allowance of a homestead, the resi- due of the proceeds, not exceeding five hundred dollars, shall be 47 Gen'l Code, §10794 (R. S. §6155). See No. 150 for form of appraisement subject to dower and homestead. See No. 150 for form for order assigning dower and home- stead. See Rocket's Complete Ohio Probate Practice. Vol. 1. S S4(i. for answer of widow consenting to sale of real estate, and asking to be en- dowed out of the proceeds of sale. See same section for answer of the widow setting up dower and home- stead out of proceeds of sale. See §§ 102 to 100 inclusive for discus- sion of the subject of appraisements. 4S See § 452 rt seq. subject Dow- er. See No. 365 et seq. for forms and procedure in assignment of dower. §§231,232 MERWINE ON REAL ACTIONS. 228 paid to the widow, or in ease there be no widow, to the minor child, unmarried, in lieu of a homestead, on her or said minor child's application, in person, or by agent, attorney or guardian. 49 If the deceased, at the time of his death, was not the owner of a homestead, no allowance can be made to the widow in lieu of a homestead. 50 The widow should make her application for homestead allow- ance in the proceeding in due time, or she may waive the right to demand it. 51 If dower is assigned during the year first after decedent's death, the right of the widow to remain in the mansion house for the rest of said years is defeated, but this right of the widow as to the mansion house, is not defeated by the administrator's sale of the real estate to pay debts, unless dower is assigned or she receives same and elects to take out of the proceeds. Sec. 231. Dower especially assigned to be a charge on the land. If the appraisers shall have assigned dower specially of the rents and profits and the purchaser takes, by the deed of the ( xeeutor or administrator', the lands upon which such dower has been assigned, it is made the duty of the court to make such order as will secure to the widow a charge upon such lands for the dower so assigned. 52 Sec. 232. Vacancy in appraisers — How filled. When any person appointed by the court as an appraiser fails to discharge his duties, the probate court or any justice of the peace in the county in whiah the lands to be appraised are situated, may, at the instance of the executor or administrator- appoint an appraiser, of which appointment, the officer appoint- isGen'J Code, § 11732 (R. S. g 5 i:;7 i. Sec also Taylor v. Thorn, 29 0. S. 569; Wherle v. Wlie-'-, 3!) 0. S. 65; Schiler v. Miller. 45 O. S. 525; Wolverton v. Paddock, 3 C. C. Ins; Bliss v. Fuhroman, 6 C. C. 203. bo Wohvrt y v. Paddock, 3 C. C. 488. It is '-.w that the provisions of Gen'1 Code, § 1173s i R. S. §5441) only apply to exemption of the widow out of her own property against her own debts, and thai she is not entitled t<> any allowance in lieu of a homestead out of her hus- band's property." Ibid. • r 'i Bliss v. Fuhroman, 6 C. C. 203; 52 Gen'l Code §10808 (R. S. §6164). No. 124 for form assign ing dowti- by metes and hounds. See No. 150 for order allowing dower out of proceeds of sale of real es- tate. 229 SALE OF HEAL ESTATE TO PAY DECEDENT 's DEBTS. § 233 ins, must make and sism a certificate which must be returned with the appraisement, or the executor or administrator may apply to the court making 1 the order of appraisement and have another appraiser appointed thereby. 53 Sec. 233. Oath of appraisers— Certificate thereof — View and return — Compensation of appraisers. The appraisers must be sworn by some officer authorized to administer oaths and a certificate thereof must be inserted in or annexed to their return, and they must afterward, upon actual view, perform the duties required of them by the order of the court and make return of their proceedings in writing to the court. 54 The appraisers are each entitled to receive $1.00 per day for services performed by them in the county in which they reside and $2.00 per day for services performed without such county. 55 This subject is treated fully in the second chapter of this work. A review of the cases and the statutes relating to ap- praisements, where real estate is sought to be sold under execu- tions and other orders of sales, will be found there. 56 Sec. 234. The notice of sale by the executor or administrator. The executor or administrator must, if the sale is to be public, give notice of the time and place of sale by advertising the same at least four weeks successively in some newspaper printed in the county where the lands are situated ; or if no newspaper be printed therein, by advertisements posted up in at least five public places in the county four weeks before the day of sale. 57 Sec. 235.— Notice of sale in German or Bohemian newspaper — Error in translation to be disregarded. In any county wherein is published and printed a newspaper of the German or Bohemian language, and which has a circula- tion of at least five hundred and fifty copies to bona fide sub- scribers within the county, the notice required in the preceding section may, if the appraised value of the premises to be sold 53Gen'l Code. §10707 (E. S. 55 Gen'] Code. §10799 (R. S. §6150). See No. 157 for form for §0158). appointment. " See § 103 and following. 's4Gen'l Code, §10798 (R. S. ™ Gen'l Code, §10800 (R. S. §6157). §6159). §§ 236, 237 MERWINE ON REAL ACTIONS. 230 exceed five hundred dollars, in addition to the publication therein required, be published in such newspaper in the German or Bohemian language for the same time and in the same manner, and if two or more such newspapers are published or printed therein, the publication may be in either; but the court ordering such sale must, upon motion of any party to such action, and upon good cause being shown therefor, dispense with such publi- cation; but no error or mistake in translation or in any publica- tion authorized by this section can delay proceedings or affect the title of the property sold, and if such error or mistake occurs by the negligence of the publisher, he shall receive no compensa- tion for the publication. 58 Sec. 236. For what amount the lands may be sold — New ap- praisement oi order to sell at fixed price. The lands, if improved, cannot be sold for less than two-thirds of the appraised value, and if not improved for not less than one-half of the appraised value; but after being twice offered for sale the court may direct the amount for which said lands may be sold, or may set aside the appraisement and order a new one. 59 Sec. 237. When sale of such real estate to be at public or pri- vate sale — Sale in parcels. Tin 1 sale must be made at public vendue at the door of the court house in the county in which order of sale shall be made or at such other place as the court may direct; provided, however, that it is 7nade to appear to the court that it will be more for the interest of said estate to sell such real estate at private sale, the court may authorize said petitioner to sell the same either in whole or in part for cash in hand or upon deferred payments not exceeding two years with interest; and in no case can such real estate be sold at private sale for less than the appraised value thereof; provided, however, that where any order for private sale has been or may hereafter be issued under the pro- visions of this section, the court may, upon motion and showing Mfipn'l Code, §10800 (R. S. form of affidavit in support of mo- §6159). tion to set aside appraisement. See -■■><;, ■n - l Code, §10802 (11. S. No. 160 for form setting aside ap- 6160). See No. 158 for motion to praisement. set aside appraisement. No. 150 for 231 SALE OF REAL ESTATE TO PAY DECEDENT 's DEBTS. §238 by any person interested in the proceeds of such sale, require the petitioner to return such order if the premises have not been sold, and thereupon the court may issue an order for the sale of such premises at public sale as provided in this section ; and if the court, upon the showing of any person interested, find that it • will be to the interest of such estate, he may order a new appraise- ment of such premises and a sale thereof in parcels. 60 Gee. 238. Return of sale to court — Confirmation — Acceptance of cash — Sales of notes and distribution. The executor or administrator must make return of his pro- ceedings under the order of sale; and the court after having carefully examined such return and being satisfied that the sale has in all respects been legally made, must confirm the sale and order the executor or administrator to make a deed to the pur- chaser; and may, in the order, require that before the delivery of such deed, the deferred installments of the purchase money shall be secured by mortgage; provided, that if after such sale is made, the purchaser offers to pay the full amount of the pur- chase money in cash the court may order that the same be accepted if for the best interest of the estate, and direct its dis- tribution ; and the court may direct the sale without recourse, of all or any of the notes taken for deferred payments, if for the best interest of the estate, at not less than their face value, with accrued interest, and direct distribution of the proceeds. 01 Sec. 239. Executor's or administrator's deed evidence of the validity of the sale — What estates shall pass by it. The deed of the executor or administrator, made in pursuance of the order of the court, will be received in all courts as prima facie evidence that the executor or administrator in all respects observed the directions and complied with the requisitions of the law, and said deed will vest the title in the purchaser in like manner as if conveyed by the deceased in his lifetime. 62 ™Oen'l Code, §10803 (R. 8. ci Gen'l Code, §10804 (R. S. §6161). See No. !)4 et seq. for §Gl(i2). See Nos. 114 and 138 for forms of procedure where the sale forms of confirmation of sales. is public. See No. 116 et xoj. for 62 Gen'l Code, §10807 ( R. S. forms for the procedure when the §6163). See No. 115 for form of sale is private. See Nos. 14(i. 147 deed at public sale. See No. 13!) and 148 for form of application, for form of deed at private sale, affidavit and order to plat into building lots before sale. §§ 240-242 MERWINE ON REAL ACTIONS. 232 Sec. 240. How money arising from sale of land to be applied. The money arising from the sale of real estate must be applied in the following order : First — To discharge the costs and expense of the sale, and the per centum and charge of the executor or administrator thereof, for his administration of the same. Second — To the payment of mortgages and judgments against the deceased, according to their respective priorities of lien, so far as the same operates as a lien on the estate of the deceased at the time of his death, which shall be apportioned and deter- mined by the court on reference to a master or otherwise. Third — To the discharge of claims and debts in the order mentioned in this title. 03 Sec. 241. When sale is authorized by will no order of sale required. If any executor or administrator duly qualified is authorized by will or devise to sell real estate, no order will be required by the court to authorize him to act in pursuance of 'he powers vested in him by such will. 64 Sec. 242. When foreign executor or administrator may be au- thorized to sell real estate. When an executor or administrator is appointed in any other State, Territory or foreign country, of the estate of any person dying out of this State, and no executor or administrator thereon be appointed in this State, the foreign executor or administrator may file an authenticated copy of his appointment in the probate court of the count} 7 in which there may be any real estate of the deceased, together with an authenticated copy of "the will if there be one ; after which he may be authorized under an order of the court to sell real estate for the payment of the debts or legacies and charges of administration in the same manner and upon the same terms and conditions as are prescribed in the case of an executor or administrator appointed in this State excepting in the particulars in which a different provision is hereinafter made. 63 esGen'l Code, £10800 (R S. '••■ On'l Code, §10813 (R. S. §6165). §0108). 8*Gen'l (ode, §10812 (R. S. § 6167). 233 SALE OF REAL ESTATE TO PAY DECEDENT 's DEBTS. §243 Sec. 243. When foreign executor or administrator to give bond. When it is made to appear to the court granting the order of sale that such foreign executor or administrator is bound with sufficient surety or sureties in the State or country in which he was appointed to account for the proceeds of such sale for the payment of debts or legacies and charges of administration, and a copy of such bond, duly authenticated, shall be filed in court, no further bond for that purpose will be required of him here ; other- wise before making such sale he will be required to give bond with two or more sufficient sureties to the State of Ohio with the condition to account for and dispose of the said proceeds for the payment of the debts or legacies of the deceased and the charges of administration according to the laws of the State or country in which he was appointed. 60 Sec. 244. Foreign executor or administrator to give further bond to account for surplus, when— Surplus considered real estate, when. When such foreign executor or administrator is authorized by order of the court to sell more than is necessary for the payment of debts and legacies and charges of administration as herein- before provided, he must before making the sale give bond with two or more sufficient sureties to the State of Ohio, with the condition to account before the court for all the proceeds of the sale that shall remain after payment of the debts, legacies and charges, and to dispose of the same according to law. 67 In all cases of a sale by an executor or administrator of part or the whole of the real estate of the deceased under an order of court, whether such executor or administrator have been appointed in this State or elsewhere, the surplus of th> proceeds of the sale remaining on the final settlement of the account will be considered as real estate, and will be disposed of accord- ingly. 68 ee Gen'l Code, §10814 (R. S. cs Gen'l Code, §10816 (R S §0100). §0171). c- Gen'l Code §10815 (R. S. §0170). FORMS. PROCEDURE IN SALE OF REAL ESTATE BY AN ADMIN- ISTRATOR TO PAY DECEDENT'S DEBTS. Forms. 94. The petition when the action is in the Court of Common Pleas, and when the action also seeks to sell land of decedent, conveyed by him in fraud of creditors. 95. The precipe. 96. The summons for defendants in the county where the action is brought. 97. The sheriff's return of the summons. 98. Summons for defendants liv- ing in a county other than where the petition is filed. 99. The sheriff's return of his proceedings under said summons. 100. The answer and cross-petition setting up a building and loan mortgage. 101. Waiver of summons and entry of appearance. 102. An answer in such case. Forms. 103. Entry appointing guardian ad litem. 104. Answer of guardian ail litem. 105. Decree setting aside fraudu- lent conveyance and order- ing sale of real estate. 10(1. The order of appraisement. 107. Administrator's return of his proceedings under said order. 108. The oath of the appraisers. 109. Entry confirming the appraise .nent and order of sale. 110. The order of sale directed from the clerk to the ad- ministrator. 111. The administrator's publica- tion of sale of real estate. 112. The proof of said publication. 113. The administrator's return of his proceedings under said order of sale. 114. Confirmation of sale — Order for deed and distribution. 115. Form of the administrator's deed in such case. No. 94. The petition when the action is in the Court of Com- mon Pleas, and when the action also seeks to sell land of decedent, conveyed by him in fraud of creditors. Court of Common Pleas, County, Ohio. Petition No. A. H. J., as administrator with the will annexed of J. A. J., deceased, Plaintiff, vs. E. M., E. J., a minor, J. J., a minor, T. J., J. D. E., D. J., J. M. J., M. J. E., I. J., and The The said A. H. J., as administrator with the will annexed of Company, Defendants, J. A. J., plaintiff, for petition herein says that on the — , 19 , the said J. A. J., being then a resident of County, Ohio, departed this life, having, on the - — da"' of day of 234 235 FORMS. 19 , executed his last will and testament which he left and which last will and testament was by the Probate Court of County, Ohio, duly admitted to probate and record in said court on the day of , 19 ; that one I. J., having been named as execu- tor of said will refused to act as such and said A. H. J. was by said court duly appointed and qualified as administrator of said estate with the will annexed, and has entered upon the discharge of said duties; that on the day of , 19 , the said J. A. J., being then deeply in debt and insolvent, with the intention to hinder, delay, and defraud his creditors, by a certain pretended deed of gift, bearing that date, for the purported consideration of $ , fraudulently attempted to transfer and convey to the said J. D. E., his heirs and assigns forever, the following described real estate, situate in the county of , in the State of Ohio, and in the city of , and more particularly described as follows, to-wit: (Here describe real estate). Plaintiff further avers that there was no consideration for said con- veyance to said J. D. E., but that the same was in fact without consideration, and with no intent to actually vest the title of said lands in said J. D. E., but to cover up the same from the creditors of said J. A. J., and to hinder, delay, and defraud them in the collection of their said claim, and that the said deed is fraudulent and absolutely void. Plaintiff further says that valid debts of decedent, amounting to $ , have been presented to said administrator for payment; that the costs of administration will amount to $ , being wholly insufficient to pay the debts and the costs of administration, and it is therefore necessary to sell said real estate to pay the debts aforesaid. Plaintiff further avers that the said defendants D. J., J. M. J., M. J. and I. J. are the only heirs at law of the said J. A. J., deceased, and have the next estate of inheritance; that the said defendants, E. M., E. J., T. J., J. J. and the Company, have some claim against said real estate, and the said plaintiff prays that they be required to answer this petition and set out what claim they have or be forever barred. Wherefore plaintiff prays that said purported transfer and con- veyance of said real estate to said J. D. E. be set aside and held for naught, and that he may be ordered to sell said premises to pay said debts according to the statute in such case made and provided and for all such other and further relief as equity and the nature of the case may require. , Attorney for Plaintiff. The petition should be verified as in other cases. No. 95. The precipe. To the Clerk: Issue summons to the sheriff of County, Ohio, for J. D. E., D. J., J. M. J. and M. J. E., and to the sheriff of Cou MERWINE ON REAL, ACTIONS. 236 for T. J., E. J., J. J., E. M., and I. J., endorse, "An action brought by an administrator to set aside a conveyance made in fraud of creditors and to sell real estate to pay debts of decedent." Attorney for Plaintiff. No. 96. The summons for defendants in the county where the action is brought. The State of Ohio, County, ss.: To the Sheriff of said County, Greeting: You are commanded to notify J. D. E., D. J., J. M. J. and M. J. E. that they have been sued by A. H. J., as administrator with the will annexed of J. A. J., deceased, in the Court of Common Pleas of : County, and that unless they answer by the day of in the year of our Lord one thousand nine hundred and , the petition of said plaintiff against them, filed in the clerk's office of said county, such petition will be taken as true and judgment rendered accordingly. You will make due return of this summons on the day f i n the year of our Lord one thousand nine hundred and . , Clerk of Common Pleas Court, County, Ohio. No. 97. The sheriff's return of the summons. Sheriff's Return. State of Ohio, County, ss. : Received this writ on the day of in the year of our Lord one thousand nine hundred and at o'clock m.. and pursuant to its command on the day of in the same year, I served the same by personally handing a true and duly certified copy of this writ, with all the endorsements thereon, to the following of the within named defend- ants M. J. E. I also on the same day left a true and duly certified copy of this writ, with all the endorsements thereon, at the usual place of residence of each of the following within named defendants, J. D. E.. and J. M. J., and after due and diligent search I was unable to find the following within named defendant, D. J., within my bailiwick. , Uhnriff of County, 0. No. 98. Summons for defendants living in a county other than where the petition is filed. The State of Ohio, County, ss. : To the Sheriff of County, Greeting: You are comanded to notify T. J., E. J., J. J., E. M. and I. J. that they have been sued by A. H. J., as administrator with the 237 FORMS. will annexed of J. A. J., deceased, in the Court of Common Pleas of County, and that unless they answer by the day of , in the year of our Lord one thousand nine hundred and , the petition of said plaintiff against them filed in the clerk's office of said county, such petition will be taken as true and judgment rendered accordingly. You will make due return of this summons on the day of , in the year of our Lord one thousand nine hundred and — . Witness my hand and seal of said court this day of , in the year of our Lord one thousand nine hundred and Clerk of the Court of Common Pleas, County, Ohio. No. 99. The sheriff's return of his proceedings under said summons. Sheriff's Return. The State of Ohio, County, ss.: Received this writ on the day of in the year of our Lord one thousand nine hundred and at o'clock, M., and pursuant to its command on the day of , in the same year, I served the same by personally handing a true and duly certified copy of this writ with all the indorsements thereon to each of the following of the within named defendants, E. M. and I. J. I also on the day of , ID , delivered a true and duly certified copy of this writ with all the indorsements thereon personally to each of the following of the within named defendants, T. J., E. J., and J. J. and whereas the said E. J. and J. J. are minor children under years of age and having no legal guardian, I, on said day of , 19 , served the same by delivering a true copy thereof, with all the indorsements thereon personally upon T. J., the father of said minor children. sheriff of County, Ohio. Nc. 100. The answer and cross-petition of The Com- pany setting up a building and loan mortgage. Court of Common Pleas, — — County, Ohio. A. H. J., as administrator with the will annexe; 1 of J. A. J., deceased, Plaintiff, vs. Petit" >n No. . E. M., E. J., a minor, J. J., a minor, T. J., J. D. E., D. J., J. M. J., M. J. E., I. J. and The Company, Defendants. 1. For the first defense herein the defendant, The Company, for its answer herein says that it is a corporation duly incorporated MERWINE ON REAL, ACTION'S. 238 under the laws cf the State of Ohio, and has its principal place of business in the city of in said State. It further says that it has no information or knowledge regarding the averments in the petition contained, and, therefore, denies the allegations in the peti- tion set forth and each and every of them. 2. By way of cross petition The — — Company now comes and says that it is a corporation duly incorporated under the laws of the State of Ohio and has its principal place of business in the City of in said State, that on the day of , 19 , the defendant, J. D. E., did together with his wife, W. E., who released her dower therein, duly execute and deliver to said answering defendant their certain mortgage deed on the following described real estate situate in the City of , County of , and the State of -, the real estate described in the petition, and more particularly described as follows, to-wit: (Here insert description of real estate). Said mortgage contained the condition that, whereas, the said J. D. E. and W. E. have entered into a contract in writing with said The Company, in the words and figures following: (Here insert the contract). Now. if the said J. D. E. and W. E., their heirs and assigns shall pay to said The Company, its successors and assigns the said sums of money when due as set forth in said contract, and if the said mortgagors, their heirs and assigns shall observe, keep and perform all the covenants herein contained on their part to be kept, observed, and performed, then these presents shall be void; otherwise to be and remain in full force and virtue in law forever. Said mortgage was on the day of — , 10 . at o'clock, m.. duly filed for record in the recorder's office of County, Ohio, by this defendant and was duly entered of record in Mortgage Book page , in said office and is still a valid and subsisting lien against said premises. The interest on said note has been paid in full to the day of , 19 , and on or about said day of , 19 , there was paid on the principal sum of said note the sum of $ . No payments have been made on said note on account of either principal or interest since said day of , 19 , and by reason of the premises this answering defendant has elected to declare and does hereby declare the whole amount of said note and mortgage to be due and payable and does now demand pay- ment thereof. There is now due and unpaid to this answering defendant on said mortgage, and now thereby secured, the sum of $ , with interest thereon at the rate of per cent, per annum, payable from said day of . 19 . Tliis defendant further says that at the time said note and mort- gage were executed and delivered to it by the said J. D. E. and wife, the said J. D. E. was, as appeared from the records in the 239 FORMS. recorder's office of said — County, seized in fee simple of the aforesaid premises, and that this defendant was also informed by the said J. D. E. and his wife and believed that the said J. D. E. was the owner in fee simple of said premises and that it had no knowledge, intimation or belief to the contrary, and that acting in good faith and in reliance of his being seized in fee simple as aforesaid of said premises, this defendant did loan, on the date here- inbefore mentioned, the aforesaid sum of $ , and that the said J. D. E. and wife did then, and at that time, to secure said loan, execute and deliver to this defendant the mortgage which is herein- before specified, mentioned and referred to. This defendant is informed that the plaintiff A. H. J. claims to be the administrator with the will annexed of J. H. J., deceased, and that these defendants, co- defendants, to-wit: E. M., E. J., a minor, J. J., a minor, T. J., J. D. E., D. J., J. M. J., M. J. E. and I. J., and that the said A. H. J., as administrator as aforesaid, each claim to have some interest in the aforesaid premises, and it therefore asks that the said A. H. J. and that the said co-defendants, and each of them, be required to answer herein setting forth what, if any interest they have, or claim in said premises, or be forever barred from asserting the same. Wherefore this defendant prays that in default of the payment of the amount due and payable, or that may hereafter become due and payable before the judgment herein, its said mortgage may be fore- closed and said premises be sold' free of all claims of the plaintiff and of this defendant and the said co-defendants, and that the pro- ceeds arising from said sale of said premises be applied to the pay- ment of the debt due this defendant, and further prays for all such other and further relief as is proper in the premises. Attorney for Company. This answer is verified as in other cases. No. 101. Waiver of summons and entry of appearance. A. H. J., as administrator with the will annexed of J. A. J., deceased, Plaintiff, vs. Petition No. — . E. M., E. J., a minor, J. J., a minor, T. J., J. D. E., D. J., J. M. J., M. J. E., I. J. and The Company, Defendants. The undersigned do now each come and voluntarily waive the issuing and service of a summons on them of the answer and cross- petition of The Company, and each do hereby enter his appearance in this case. A. H. J., As Administrator with the will annexed of J. A. J., deceased, D. J. HER WINE ON REAL ACTIONS. 240 No. 102. An answer in such case. A. H. J., as administrator with the will annexed of J. A. J., deceased, Plaintiff, vs. Petitioa No. . E. M., E. J., a minor, J. J., a minor, T. J., J. D. E., D. J., J. M. J., M. J. E., I. J. and The Company, Defendants The defendants, E. M. and T. J., for answer, say that it is true that J. A. J. died on the day of , 19 ; that on the day of , 19 , he executed his last will and testament, and that the said A. H. J. is now the administrator of his estate with the will annexed as alleged in the petition; that on the day of , 19 , the said J. A. J. conveyed the property described in the petition to the said J. D. E. by deed; that on the day of , 19 , the said J. D. E. sold and conveyed said real estate to the defendant, E. M., and to E. J., the wife of the said T. J. who has since died. Said conveyance was by good and sufficient deed and upon good and sufficient consideration. The defendant T. J. has a dower interest or estate vested in said real estate. These answering defendants deny each and every other allegation in said petition contained. Wherefore, these answering defendants pray that plaintiff's petition may be dismissed. Attorneys for E. M. and T. J. The answer is verified as in other cases. No. 103. Entry appointing guardian ad litem. A. H. J., as administrator with the will annexed of .1. A. J., deceased, Plaintiff, vs. Petition No. . E. M., E. J., a minor, .1. J., a minor, T. J., J. D. E., D. J., J. M. J., M. J. E., I. J. and The Company, Defendants. It appearing to the court that E. J. and J. J., minor defendants, have been duly served with summons and are under 14 years of age, and have not applied for the appointment of a guardian ad litem, although more than twenty days have elapsed since the return of the summons served upon them and each of them; and upon the application of the plaintiff, it is ordered that be appointed 241 for::-; guardian ad litem for said minor defendants. And thereupon camo the said and accepted said appointment. No. 104. Answer of guardian ad litem. A. H. J., as administrator with the will annexed of J. A. J., deceased, Plaintiff, vs. Petition No. . E. M., E. J., a minor, J. J., a minor, T. J., J. D. E., D. J., J. M. J., M. J. E., I. J. and The Company, Defendants. Now comes heretofore appointed by the court guardian 0(7 litem for the infant defendants herein, E. J. and J. J., and for his answer, as such guardian ad litem, to the petition herein, says that he denies all the allegations therein contained, and further says that said infant defendants are of tender years, and asks the court to protect their rights and to grant them such relief herein as may be proper. , As Guardian ad litem for E. J. and J. J. No. 105. Decree setting aside fraudulent conveyance and or- dering sale of real estate. A. H. J., as administrator with the will annexed of J. A. J., deceased, Plaintiff, vs. Petition No. . E. M., E. J., a minor, J. J., a minor, T. J., J. D. E., D. J., J. M. J., M. J. E., I. J. and The Company, Defendants. This day came the parties and this cause came on for trial on the petition of plaintiff, the answer of the defendants, E. M. and T. J. filed herein on the day of , 19 , and the answer of the infant defendants, E. J. and J. J. by , their guardian ad litem heretofore appointed by the' court, the answer and cross petition of the defendant, The Company, and the evi- dence, and the court finds that all the defendants have had due and legal notice of the pendency and prayer of said petition and said answer and cross petition, and, except as said defendants have an- swered aforesaid, are in default for answer or demurrer to the said petition and the said answer and cross-petition. And the court, having heard the testimony adduced by the parties, finds the equity of the case with the said plaintiff and with the said The Company, and that all the facts stated in said petition are true and that the facts stated in said answer of the defendants E. M. and T. J. contrary thereto are untrue, and that all the facts MERWINE ON REAL ACTIONS. 242 stated in the said answer and cross-petition are true, and that the said plaintiff and that the said defendant, The Company, are each entitled to the relief for which they respectively prayed. The court finds further upon the issues joined between the petition and the said answer of said E. M. and T. J., that the conveyance of the real estate mentioned and described in the petition made by the said decedent, J. A. J., to the defendant, J. D. E., and by the defendant, J. D. E., to the defendant, E. M. and one E. J., now de- ceased, were each made with the intent to hinder, delay and defraud the creditors of said J. A. J. as in said petition alleged, and that the said deeds were received by said grantees respectively without con- sideration and with knowledge of said intent on the part of said J. A. J. and that said grantees ea^h and the said defendants E. J., J. J., and T. J., have no legal title to said real estate nor any interest therein. And the court, on the evidence, further finds that the said de- cedent, J. A. J., died seized of the equitable title to said real estate and that said real estate is assets of his said estate and that it is necessary to sell said real estate to pay the debts of his estate and the costs and expense of administration. It is further ordered, adjudged and decreed by the court that the said deeds of conveyance for the real estate in the petition described from the said J. A. J. to the said J. D. E. and from the said J. D. E. to the said E. M. and E. J. be and the same are each hereby declared void and to be of no force and effect in lav/ to affect the title of said real estate or to convey the same to the said J. D. E. or to the said E. M. or E. J., or either of them, and the same and each are hereby set aside and held for naught. It is therefore ordered by the court that the said plaintiff, A. H. J., as the administrator with the will annexed of said J. A. J., deceased, proceed to appraise and sell said real estate for the pur- poses aforesaid; and it is further ordered by the court that C. A., F. C. M., and C. R., three judicious and disinterested men, free- holders of the vicinity, after being duly sworn, and upon actual view of the premises, as in the petition described, appraise the same at its fair cash value, and return said appraisement to this court for confirmation. The said real estate is described as follows: (Here insert, description of said real estate). It is further ordered that the said defendants, E. M., E. J., J. .1., and T. J., pay the costs of this action incurred up to the present time taxed at $ , including a guardian ad litem fee for said minor defendants, amounting to the sum of $ , which the court hereby orders to be paid as part of the costs, to as such guardian ad litem for services herein, and that in default of such payment an execution issue therefor. And this cause coming on further to be heard upon the answer and cross-petition of the defendant. The Company, the court finds that the said J. D. E. and W. E., his wife, made, executed and delivered to said company the said note and mortgage in the said 243 FORMS. answer and cross-petition set forth, and that the said company had no knowledge or notice of said fraud aforesaid, and was wholly in- nocent in said transaction, and that said company has a good and valid lien for the amount due on said note and mortgage against the said real estate above described, and that the same is the first and best lien upon the real estate in the petition described and superior to the interest in the estate of the said J. A. J., deceased, therein. And the court further finds that there is due The Com- pany upon the note in its answer and cross-petition set forth the sum of $ , with interest thereon from the day of , 19 ; that the condition of said mortgage has been broken, and that the said company is entitled to have said mortgaged premises sold to pay the amount found due said company as aforesaid. It is therefore ordered, adjudged and decreed that unless the said J. D. E., E. M., E. J. and T. J. within days from the entry of this decree pay, or cause to be paid, to the said company the amounts so found due it aforesaid, together with the costs of this action, that an order of sale issue upon the precipe of said company to the sheriff of County, Ohio, to appraise, advertise and sell said real estate as upon execution, and report his proceedings to this court for its further order. It is further ordered by the court that in case this plaintiff shall obtain from this court an order to sell said real estate within days from the entry of this decree and shall thereupon proceed without unnecessary delay to sell said real estate upon its said decree, that no order of sale shall issue in favor of said company in favor of its decree, in which event the amounts so found due said company shall first be paid out of the proceeds of sale made under the order to be issued by said plaintiff. No. 106. The order of appraisement. In the Court of Common Pleas. State of Ohio, County, ss.: To A. H. J., as administrator icith the will annexed of J. A. J., deceased, Greeting : In obedience to an order and decree of the Common Pleas Court within and for said county made this day in a certain case wherein you, as the administrator with the will annexed of the estate of J. A. J., deceased, are complainant and E. M. et al, are defendants, you are commanded that by the oaths of , and , three judicious and disinterested men of the vicinity and upon actual view of the premises, you cause a just valuation and appraisement to be made according to law of the following described premises: (Here insert description of the real estate as aforesaid)., And be it further ordered that you make, return of your pro- ceedings herein forthwith upon the execution of this order. MERWINE ON HEAL ACTIONS. 244 Witness my hand and seal of said Common Pleas Court at this day of , 19 Clerk of said Court. No. 1.07. Administrator's return of his proceedings under said order. To the Court of Common Pleas. County. Ohio: In obedience to the foregoing order, I have caused an appraise- ment to be made of the premises therein described as will more fully appear by the proceedings of the appraisers hereto annexed. As Admr. with, will annexed of J. A. J., deceased. No. 108. The oath of the appraisers. The State of Ohio, County, ss.: On the day of , 19 , before me personally appeared . and , the within named, and made solemn oath that they would upon actual view honestly and impartially appraise the within described real estate at its fair cash value in pursuance of the foregoing order. Appraisers. Sworn to and subscribed before me this day of 19- Notary Public. County, 0. No. 109. Entr3' confirming the appraisement and order of sale. A. H. J., as administrator with the will annexed of J. A. J., deceased, Plaintiff, vs. Petition No. . E. M., E. J., a minor, J. .T., a minor, T. J., J. D. E., D. J„ J. M. J., M. J. E., I. J. and The Company, Dt fendants. This day came the parties, and this cause came on to he heard upon the return of the appraisement heretofore ordered in this case, and the same was submitted to the court, and the court, after care- ful examination of the same, finds that the said appraisement has been made in all respects in accordance with law and the orders of this court by competent and qualified appraisers, and the same is hereby approved and confirmed, and it further appearing to the court ttat 245 FORMS. the said plaintiff, under the orders of the Probate Court of Ceunty, Ohio, has given an additional bond in the sum of $ with approved securities thereon conditioned according to law, making the total bond given by plaintiff amount in the aggregate to $ ;.nd that said additional bond has been approved and accepted by the Probate Court of - - County. Ohio, it is now ordered by this court that the said A. II. J. as administrator with the will annexed < t said J. A. .].. deceased, proceed to advertise for sale at the door of the court house i:i — County. Ohio, the real esiate in the petition described as provide:! by law, and that he sell the same at public sale at not less than two-thirds of the appraised value thereof on the following terms, to-wit: one-third of purchase money cash in hand and the balance in one and two years from the day of sale and to be secured by mortgage on the premises sold, or all of said purchase money cash in hand at the option of the purchaser, and it is ordered that, upon the precipe of the said plaintiff, addressed to the clerk of this court, an order of sale issue to plaintiff accord- ingly, and said plaintiff is hereby ordered to make return to this court immediately after such sale. No. 110. The order of sale directed from the clerk to the administrator. The State of Ohio, County, ss.: In the Co cut of Common Pleas of , Ohio. To A. H. J., as administrator with the will annexed of J. A. J., deceased, Greeting: In obedience to an order and decree of said Court of Common Pleas within and for said county, made on the day of • 19 • in a certain case wherein you, as the administrator with the will annexed of J. A. J., deceased, are complainant and E. M. et al, are defendants, you are commanded to proceed according to law to sell at public sale the following described, premises situate in the County of - in the State of , a nd in the City ot ' • a nd more particularly described as follows, to-wit: (Here insert description). Said sale to be made at the door of the court house in the City of , for not less than two-thirds of the appraised value thereof and upon the following terms, to-wit: one-third of the purchase money cash in hand, and the balance in one and two years from the day of sale, deferred payments to bear interest from day of sale and be secured by mortgage on premises sold, or all of said purchase money cash in hand at the option of the purchaser, and that you make due return of your proceedings herein forthwith upon the execution of this order. Witness my hand and seal of this Court of Common Pleas at , Ohio, this day of 19 Cleric of the Courts of County. Ohio. MERWINE ON REAL ACTIONS. 246 No. 111. The administrator's publication of sale of real estate. Notice is hereby given that on the day of , 19 , at o'clock m., at the door of the court house in , Ohio, the undersigned pursuant to an order of the Court of Common Pleas of County, in the case of the undersigned, as administrator with the will annexed of J. A. J., deceased, against E. M., et al, in case No. , will offer for sale, at public auction, the following described real estate, situate in the County of , in the State of , and in the City of , and more particularly described as follows: (Here insert description of real estate, together with the street number of said premises), appraised at $ , terms of sale, one-third of the purchase money in cash, one-third in one year and one-third in two years from day of sale with interest thereon; the deferred payments to be secured by mort- gage on the premises sold, or all cash in hand at the option of the purchaser. A. H. J., As Administrator with the will annexed of J. A. J., deceased. No. 112. The proof of said publication. State of Ohio, County, ss.: being duly sworn deposes and says that a notice, of which a true copy is hereto attached, was published in the a newspaper printed and in general circulation in County, Ohio, once a week for four consecutive weeks, to-wit: on , , and . Sworn to and subscribed before me this day of 19 . Notary Public County, Ohio. No. 113. The administrator's return of his proceeding's under said order of sale. State of Ohio, County, ss.: In pursuance of the foregoing order of sale, I gave notice of sale by publication in , a newspaper of genera) circulation in the County of for at least four consecutive weeks from the day of , 19 , and on that day at o'clock, a. m.. at the door of the court house in the Cil of , in accordance with said notice, I offered the real estate in the petition described for sale, when bid to pay for the same the sum of $ , which, being the highest and best bid for the same that was offered, and more than two-thirds of the ap- 247 FORMS. praised value of said premises, I then and there sold the same to for that sum for cash. A. H. J., Administrator of the estate of J. A. ./., deceased. No. 114. Confirmation of sale — Order for deed and distribu- tion. A. H. J., as administrator with the will annexed of J. A. J., deceased, Plaintiff, vs. Petition. No. . E. M., E. J., a minor, J. J., a minor, T. J., J. D. E., D. J., J. M. J., M. J. E., I. J. and The Company, Defendants. This cause now coming on to be heard upon the return of A. H. J., as administrator with the will annexed of J. A. J., deceased, of his proceedings and sale under the order of this court, the court, after having carefully examined said return, being satisfied that, such sale has, in all respects, been legally made, does hereby approve and confirm the same and orders that the said A. H. J., as such adminis- trator, make to the purchaser, , a good and sufficient deed for the premises so sold, and it is further ordered that satisfaction of the mortgage herein set forth in the pleadings be entered on the record thereof in the office of the recorder of County, Ohio, where it is recorded. The court, coming now to distribute the proceeds of said sale, amounting to $ , which the said purchaser elects to pay in cash, orders that said administrator pay: First, the taxes and special assessments due and payable against said real estate, amounting to $ . Second, the costs of this action to the clerk of this court, in- cluding a counsel fee of $ to attorneys for said plaintiff for services in this case, amounting to $ . Third, the amount due The Company on its mortgage lien, the sum of $ . Fourth, the residue of said proceeds of sale, to-wit: the sum of $ is hereby ordered to be retained by plaintiff to be admin- istered according to law. No. 115. Form of the administrator's deed m such case. Know all Men by these Presents, That: Whereas, on the day of , 19 , A. H. J. was duly appointed and qualified as administrator with the will annexed of the estate of J. A. J., deceased, late of County, Ohio, by the Probate Court of said county, and afterwards, to-wit: on the MERWINE ON REAL ACTIONS. 248 day of , 19 , said as such administrator, filed his certain petition and then and there commenced an action in the Probate Court of County, Ohio, against E. M. et al, and numbered on the docket of said court as case No. , pray- ing among other things for an order of sale of certain real estate therein mentioned and hereinafter described, and Whereas, Such proceedings were had in said action on the ■ day of , 19 , said court, finding the allegations of the petition true, and that said real estate ought to be sold as prayed for in said petition, and on the same day in pursuance of said order and judgment, an order of appraisement was issued out of said court, under the seal thereof, to the said , as administrator with the will annexed of J. A. J., deceased, as aforesaid directed,, commanding him to execute the said orders, and of the same, together with his proceedings thereon, to make due return, and Whereas, said , having caused said premises to be appraised, and having on the day of , returned said appraisement, the same was by the court confirmed, and said court ordered that the said proceed to sell said property at public sale as provided I law, and thereafter, to-wit: on the day of , said made a report to this court of a sale made of the premises in the petition described to for the sum of $ , and Whereas, on the day of , 19 , the said court having examined the proceedings of the sale of the said aforesaid under said order of sale, and it appearing to the court that the same be approved and confirmed, and that said should execute and deliver a proper deed to the purchaser of the real .estate so sold; all of which will more fully appear by the records of said court, to which reference is here made; Now therefore A. H. J., the said administrator of the estate of J. A. J., deceased, aforesaid, by virtue of said judgment, order of sale, sale and confirmation, and of the statute in such case made and pro- vided, and of the powers vested in , and for and in considera- tion of the premises and the_ sum of $ , paid or secured to be paid to by said , the receipt whereof is hereby acknowl- edged, do hereby grant, bargain, sell and convey to the said , his heirs and assigns forever, the following real estate, situated in ' i County of , in the State of Ohio, and in the of , and bounded and described as follows: (Here describe real (state i. tree of any dower estate therein. To Have and to Hold said premise., with all the privileges and appurtenances thereto belonging to the said , his heirs and as- signs forever, as fully and completely as lie, the said , as such , by virtue of said judgment, order of sale, sale and confirmation, and of the statute made and provided for such cases hi or should sell or convey the same. In Witness Whereof, The said , as such , has hereunto set his hand, this day of , 19 249 FORMS. Signed and sealed in presence of State of Ohio. County, ss.: Be it Remembered, That on the day of 19- -, before me, the subscriber, a notary public in and for said county, personally came the above named , as of . the grantor in the foregoing deed, and acknowledged the signing of the same to be his voluntary act and deed as such — for the uses and purposes therein mentioned. In lisriMdw Whereof, I have hereunto subscribed my name and affixed my official seal on the day and year last aforesaid. Notary Public, County, Ohio. PROCEEDINGS IN THE PROBATE COURT WHERE REAL ESTATE IS SOLD BY AN ADMINISTRATOR AT PRIVATE SALE, SUBJECT TO DOWER. FORM 11C. 117. 118. 119. 120. 121. 122. 123. ' ?4. !25. 126. The petition where real rotate is sold in probate court at private sale. Answer of the widow asking an assignment Q f dower in the real estate sought to be sold. 'I he precipe for summons in the above case. Summons i n petition to sell real estate. The sheriff's return of the aforesaid summons. Decree and order for sale of real estate subject to dower therein. Tl rder of assignment < f 'lower and appraisement of real estate. The administratrix-' return of her proceedings under said order. 'I he oath of the appraisers. The appraisers' return of their proceedings under the order. Order of court confirming ap- FORM. praisement — Assignment of dower and ordering addi- tional bond and sale of the real estate subject to dower. Jl'7. Form for additional bond re- quired by the statute. 128. Order to sell real estate at private sale for cash, sub- ject to dower — Approval of additional bond. 120. The order df sale to the ad- ministratrix at private sale for cash and subject to dower. 130. The administratrix' report of sale under said writ. 131. Entry confirming sale and or- dering deed. 132. Administratrix' deed for real estate sold at private -ale in the probate court sub- ject to widow's dower. 133. Order for sale of real estate at public auction. 134. The order of sale issued to the administrator. MERWINE ON REAL ACTIONS. 250 FORM. 135. 136. 137. 138. 139. 140. 141. 142. 143. 144. 145. 14G. r47. 148. The administrator's return of his proceedings under said order of sale. The publication of notice of sale of said real estate. Proof of publication of the aforesaid notice. Confirmation of administra- tor's sale and order for deed. Administrator's deed in sale of real estate by probate court at public auction free of dower. Answer of widow consenting to sale and waiving assign- ment of dower in real es- tate by metes and bounds, and asking that the real estate be sold free of her dower, and that she may be endowed out of proceeds of sale. The order of sale where real estate is sold free of dower of widow. Application for the appoint- ment of guardian ad litem and a trustee to answer for an insane defendant. Order of court appointing guardian ad litem and a trustee for an insane de- fendant. Answer of guardian ad litem for infant defendant- Answer of a trustee for an insane person. Application to have the real estate described in petition of an administrator to sell lands to pay debts, sur- veyed and platted. The affidavit in support of the above application. ( irder of the court authorizing the real estate described in the petition to be surveyed and platted and order of the courl confirming the same- Order of the court approving and confirming said survey, plat and ad- dition. FORM. 149. 150. 151. 152. 153. 154. 155. 156. 157. 158. 159. 160. 161. 162. Order of the court on the hearing for assignment of homestead and dower and order of appraisement sub- ject to dower and home- stead. Order from the court to the plaintiff' for assignment of homestead and dower and appraisement. The administrator's return of his proceedings under the above order. The oath of appraisers. The return of the appraisers assigning homestead and dower and appraising the real estate, subject to home- stead and dower. Order of the court dismissing petition of an administra- tor at his costs. Affidavit to obtain service upon defendants by publi- cation. Notice to parties by publica- tion. The certificate of a justice of the peace appointing ap- praiser to serve instead of appraiser appointed by the court. Motion asking that the ap- praisement and sale of the real estate described in the petition be vacated and set aside. Affidavit in support of motion to set aside appraisement, and sale of real estate. Order of the court sustaining the motion to set aside an appraisement and sale of real estate. Order of court setting aside appraisement of real es- tate, appointing new ap- praisers ami ordering a sale of real estate under a former order of sale. Order of the court fixing price at which real estate may be sold. 251 FORMS. No. 118. The petition where real estate is sold in probate court at private sale. Probate Coubt, County, Ohio. O. M. B., as administratrix of the estate of E. A. B., deceased, Plaintiff, vs. No. . E. B., a minor, and O. M. B., Defendants. PETITION TO SELL REAL ESTATE. Plaintiff says that on the day of , 19 , she was appointed and qualified as the administratrix of the estate of E. A. B., deceased, that on the day of , 19 , she filed an account in this court in which she accounted for all the personal estate which had come into her hands and which shows that she had paid out $ more than the proceeds of the personal property; that she is informed that the account was her final account, but that it was not intended to be a final account, as there was then a mortgage indebted- ness against some of the real estate belonging to the estate which she proposed to be able to pay from rents, but has not been able to do so, and the debts against the estate now amount to the sum of $ , and there are no funds in her hands from which to pay the same. At the death of said E. A. B., he left him surviving O. M. B., his widow, and E. A. B., a minor daughter, now of the age of years, and also died seized of the following described real estate lying in County, State of Ohio, and in the city of , which has not been appraised, to-wit: (Here insert description of real estate). Plaintiff asks that the entry of the court entered on the day of , 19 , be modified by striking out that part which shows that that part of the estate was settled, and that a decree may be entered ordering the setting off to the widow her dower in said premises! and that she cause the tract of real estate aforesaid to be appraised, and all or so much thereof as may be sufficient to pay the debts to be sold for the purposes of paying the debts against the estate. , Attorney for Plaintiff. The petition should be verified as in other cases. No. 117. Arswer of the widow asking an assignment of dower in the real estate sought to be sold. O. M. B., as administratrix of the estate of E. A. B., deceased. Plaintiff, vs. No. . E. B., a minor, and O. M. B., Defendants. says that she is the widow of E. A. B., deceased, and is entitled to dower in the real estate described in the petition herein. MERWLNE ON KEAL. ACTIONS. 252 and she, therefore, asks that her dower may be assigned to her therein. , Attorney for Defendant. This answer should he verified as in other cases. No. 118. The precipe for summons in the above case. To the Clerl : Issue summons to the sheriff of County. Ohio, for the following defendant, to-wit: E. A. B., a minor, years of age. Returnable according to law. Endorse "Action to sell real estate by administratrix." , Attorney for Plaintiff. No. 119. Summons on petition to sell real estate. State of Ohio, — County, ss. : To the Sheriff of said County: You are commanded to notify E. A. B., a minor, years of age, that on the day of , 19 , O. M. B., as adminis- tratrix of the estate of E. A. B., deceased, filed her petition in the Probate Court of said County, Ohio, against them and others; the object and prayer of which petition is to obtain an order for the sale of certain real estate belonging to said decedent, in said petition described, for the purpose of paying debts, and unless they answer by the day of , 19 , said petition will be taken as true and an order granted. You will make due return of this writ on the day of , 19 . Witn< z my hand and seal of said court this day of , 19 . . Judge appraisers herein appointed in this case, be, and the same is hereby vacated, set aside and held for naught It is further ordered, adjudged and decreed that an( j _ ( three judicious and disinterested freeholders of the county, after being first duly sworn, and upon actual view of the real estate described in the petition, appraise the same at its true cash value, free of the dower estate of the said , widow of , deceased. No. 161. Order of court setting aside appraisement of real estate, appointing new appraisers and ordering a sale of real estate under a former order of sale. (Same caption as in the petition.) This cause came on to be heard on the application of the plaintiff for a new appraisement of the real estate herein, and it having been 275 FORMS. made to appear to the court that said real estate heretofore ordered to be sold herein has been twice offered for sale under Che present appraisement, and that said real estate remains unsold for want of bidders, it is now ordered that said appraisement be set aside and a reappraisement of the same be made by the oaths of , ■ and , three judicious and disinterested freeholders of the vicinity, whom the court hereby appoints for that purpose. It is further ordered, adjudged and decreed that said plaintiff thereupon proceed to sell said real estate, subject to any such re- appraisement thereof in accordance with a former order of this court. No. 162. Order of court fixing price at which real estate may- be sold. (Same caption as in the petition.) Upon the application of plaintiff herein, and it having been made to appear to the court that the real estate described in the petition heretofore ordered to be sold, has been offered for sale by the plaintiffs herein under the present appraisement, and that said real estate still remains unsold for want of bidders, it is now ordered that said real estate be sold for the sum of ? . CHAPTER VI. SALE OF WARD'S REAL ESTATE BY GUARDIAN. SECTION. 245. General discussion — Power to sell ward's real estate purely statutory. 246. What courts have power to order sale of ward's real estate. 247. The nature of such actions. 248. Procedure incidental to such actions. 249. In what cases guardian may sell ward's real estate. 250. Effect of sale of ward's real estate by guardian, after ward has failed to select guardian. 251. Procedure when same person is guardian for two or more wards who are joint owners of the same real estate. 252. Petition for sale of real es- tate and the allegations thereof — Must contain per- tinent description of ward's real estate. SECTION. 253. Guardian may notify defend- ants of the action — -Parties to the action. Hearing of the petition — Ap- pointment of appraisers — Survey into town lots. Should guardians ad litem be appointed for infant de- fendants? Appraisers should be sworn. Before sale of real estate, an additional bond required. Bonding companies may exe- cute such bonds as surety — Guardian may pay costs of the same out of his ward's estate. The order of sale — Terms of the sale — Notice — Private sale. Report of sale — Confirmation and deed. 254. 255. 256. 257. 258. 259. 260. Sec. 245. General discussion — Power to sell ward's real estate purely statutory. No subject of the law of title to real estate by judicial sale demands as much care upon the part of the practitioner, the con- veyancer of real estate and the examiner of real estate titles, as tic law relating to the sale of real estate by guardian of infants, imbeciles and insane persons. This is so because there is no pre- sumption to ;iid ;i record where the proceedings arc adverse to an infant, and because the proceedings are statutory and every re- quirement of the statute favorable to the infant must be complied with. No court in this State, not even our chancery courts, whose 276 277 SALE of ward's real estate by guardian. § 246 elastic qualities are sufficient to seize hold of almost any question, have the power, without statutory aid, to order the sale of the lands of an infant in this State. Great care must be exercised in the preparation of the petition, pleadings and orders of the court to the end that all of them follow the requirements of the statute. Unless there exists some ground for the sale mentioned in the statute, a sale canno 4 ; be made; and if the guardian be not legally appointed, although he may be acting as such guardian, he cannot sell the ward's real estate, and if he should do so, the sale would be void. 1 In one instance in this State a- guardian attempted by deed, without an order of the court, to convey certain real estate of his ward to the county for road purposes, and the court held that such power could only be extended the guardian by order of the court authorized by statute ; that such power is statutory to be complied with, not only by the guardian, but also by the court, and that the jurisdiction even of courts of chancery in such case, to order the sale, rested entirely on legislative enact- ment, saying: "A guardian has no power, in this State, where the subject is regulated by statute, to sell real estate of his ward except by order of the probate court, in a proceeding properly instigated for this purpose. The numerous statutes in this State conferring special powers upon guardians in special cases, do not authorize a sale or conveyance of the realty * * * either expressly or by implication. Indeed, if any implication arises from them, it is rather that such power, w T hich would necessarily include most of the special powers granted by legislation, does not exist." 2 Sec. 246. What courts have power to order sale of ward 's real estate. Only such courts have power as are designated by the statute to make the order. Any other court undertaking t'» make The order, will not give the order any legal sanction. In this State i Frederick v. Pickett, 19 Wis. tleman v. Pelfe, 50 Mo. 583: Hig- 541; Severns v. (,*<>rke. 3 Saw. 353; ginbotbam v. Thomas, 9 Kan. 328; Galpin v. Page, IS Wall. 350, cited McGunniea v. Kiee, 48 la. .SCI. in The American Law of Guardian- -State v. Commissioners, 30 O. S. ship by Woerner, 235. For other 01; see also Rogers v. Dill, (i Hill, cases showing this principle, see 415; Williams case, 3 Bland Ch. Leary v. Fletcher. 1 Iredell. 250; (Md.) 186; Appeal of Stoughton, Murray v. Purdy, 66 Mo. 606; Cas- 88 Pa. St. 198; Field v. Scheifiin, 7 § 247 MERWINE ON REAL ACTIONS. 278 the jurisdiction is conferred on the probate court and the court of common pleas. 3 But while the probate court's jurisdiction and that of the common pleas court are concurrent, yet, if the action to sell a ward's real estate is filed in the probate court, it must be in the probate court in which the guardian was appointed; for no other probate court, has jurisdiction to hear and determine whether it is necessary to sbII the real estate. 4 It would seem, therefore, that no court of common pleas in the State other than the one in the county wherein the guardian is appointed, has the power to entertain a guardian's petition to sell the real estate of his ward. 5 In all cases where there is nothing to be determined but the mere question of a sale, the better plan always is to file the petition in the probate court ; for the reason that this court ordinarily is always in session, and there need be no delays in securing orders as is the ease between court terms of the common pleas court ; but in all actions to sell real estate of the ward where title must be corrected, and where there are equitable questions to be heard and determined, the petition should be filed in the common pleas court. Sec. 247. The nature of such actions. It has been said concerning the nature and character of the actions in such cases by Judge Roekel in his most excellent, work on probate law and practice in this State, that: "The action provided for by our statute is peculiar and is no doubt to be classed as a special proceeding, and not a civil action within the m >aning of the code. Like the action brought by executors and administrators for the sale of real estate with which it was formerly classed, it was under the former laws of our State a proceeding in rem and purely ex parte, it is still an action i>ir<>n, but by reason of a requirement that notice bo given 1<> ward and others it lias assumed some of the character- istics of an adversary proceeding. But the mere fact that notice Johns. Ch. 154; Morrison v. Kins- administrators, and guardians, and tra, 55 .Miss. 71; Gene v. Talmage, the assignment of dower in such 1 Johns. ( h. 561 cases of Bale." sGen'l ('•.,!<■, §10493 (R S. * Forseman v. Haag, 38 O. S. 102. §525), which provides that "the 5 Forseman v. Haag, 38 O. S. 102 ; probate court shall have concurrent hut see Gen'l Code, § 10955 (R. S. jurisdiction i:i the Bale of real es- §0290), as to minors living out of tate in petition by the executors, this State owning lands here. 279 SALE op ward's real estate by guardian. §248 is required does not make it adversary. * * * Suffice to say here that sales of this character should only be made when the law has bean strictly complied with." ° Sec. 248. Procedure incidental to such actions. The manner of service on such infants, the appointment of guardians ad litem and answers of guardians ad litem for such infants, service of summons on adults and infants in the county and in other counties of the State, the procedure in case of insane defendants, and appointment of trustees for such insane defend- ants and the answers of such trustees for such insane persons, service of summons by publication on non-resident defendants whose places of residence are known and on those whose places of residence are not known, service of copy of the petition on non-residents of the State, the affidavits and orders of the court therein, the persons who are to be made parties to the action — all of these and kindred topics are discussed in the first chapter of this book, and at that place will be found the references for proper forms for procedure pertaining thereto. Sec. 249. In what cases guardian may sell ward's real estate. The guardian of the person and estate, or of estate only, has the power, or is given the power, when for the interest of the ward, and whenever necessary for the education, support, or pay- ment of just debts of any minor, or for the discharge of any liens on the real estate of such minor, or whenever the real estate of such minor is suffering unavoidable waste, or a better invest- ment of the value thereof can be made, and the court is satisfied that a sale thereof will be for the benefit of any minor, the probate court by which the guardian of the person and estate, or of the estate only, has been appointed, may, on the application of such guardian, order the real estate of such minor, or a part thereof, situate in this State, to be sold. 7 It has been said by a certain eminent text writer on the subject of guardianship, in discussing the guardian's powers in the sale of the ward's real estate, that. "Where the statute authorizes the court to order the guardian to sell the ward's real estate for the payment of his debts, and makes the proceeds assets in the ••■See Complete Ohio Probate Pnrr v. CliMsterman, 3 C. C. 431: Practice, Vol. 2, Rockel, 1404, citing Gen'l Code, § 10947 (R. S. §6282). Woerner on Guardianship, 233; 7 Gen'J Code, §10945 (P. S. §6280). ■ §§ 250, 251 MEKWINE ON REAL ACTIONS. 280 guardian's hands, the court must, before making such an order, ascertain the existence of such debts, and the guardian must apply the proceeds of the sale to the payment of the debts according to the same priority as would govern an executor or administrator in applying personal assets to such payment." 8 Sec. 250. Effect of sale of ward's real estate by guardian after ward has failed to select guardian. In an early case in this State it was held, under the statute permitting certain wards on arriving at the age of twelve years to select their own guardian, that when a guardian is appointed for such ward under said age, and said guardian continues as such until the ward arrives at the age of twelve years, his guardi- anship therel y terminal s, unless his ward again selects him to be the guardian. In other w 7 ords, mere holding over without the ward choosing him as guardian, will not operate to continue the guardianship.'-' And the construction thus placed upon the statute makes all sales of real estate made by order of the court on petition of guardian filed after such wards should select such guardian under the statute but have not done so, void and of no effect. Purchasers at such sales do not get title to such real estate. 10 A petition for the sale of real estate presented by one not a legally appointed guardian, and an order of sale mad 3 thereunder by a court having jurisdiction, will not operate to give the purchaser at such sale a valid title. 11 Sec. 251. Procedure when same person is guardian for two or more wards who are joint owners of the same real estate. When any person is guardian for two or more minors whose s The American Law of Guardian- guardian or guardians after being ship by Woerner, 235. notified by the court to do so. the 9 Campbell v. English, Wright, court shall appoint a guardian or 111). The statute at this time was guardians for them as aforesaid." as follows: "That when these mi- Swan's Statute, 430. nors aforesaid, males above fourteen hi Lessee of Perry v. Brammard, and females above twelve years of 11 0. 445. The court said in this age, or when any minors for whom case: "All of the proceedings sub- the court have appointed a guardian sequent to and including the peti- or guardians, -hall arrive at the re- (ion for the sale of the lot, are spective a<_'cs aforesaid, such minors therefore void, and convey no title may severally choose a guardian or to the defendant." guardians, such p.s the court will n Dengenhart v. Cracraft, 36 0. approve and if such minors do not S. 572. come before the court and choose a 281 SALE OF WARD'S REAL ESTATE BY GUARDIAN. § 252 rea. estate is owned hy them jointly, or in common, ine guard- ian may, in one application, ask for the sale of the interest of all or any number of his wards in such real estate ; and where different persons are guardians of minors so interested jointly, or in common, in the same real estate, such guardians may join in one application; and on the hearing in either case, the court may authorize the sale of the interest of one or more or of all such wards as in its discretion it may deem right and proper. 12 Sec. 252. The petition for such sale of real estate and the alle- gations thereof — Pertinent description of real estate. Such application for the sale of real estate of the ward must be by petition, which must set forth specifically: (a) The value and character of all personal estate belonging to such ward as has come to the knowledge or possession of such guardian. (b) The disposition made of such personal estate of the ward. (c) The amount and condition of such ward's personal estate. if any, dependent upon the settlement of any decedent estate or the execution of any trust, (d) The annual value of the real estate of the ward, with a pertinent description of such real estate, (e) The amount of rent received, and the applica- tion thereof. (f) The proposed manner of reinvesting the proceeds of the sale, if asked for that purpose, (g) Each item of indebtedness, or the amount and character of the lien, if the sale is prayed for the discharge thereof, (h) Th? age of the ward, where and with whom residing, (i) If there be no personal estate belonging to such ward in possession or ex- pectancy, and none so come into the hands of such guardian, and no rents have been r?ceived. this fact is required to be stated in the petition ; if it is desired that the lands sought to be sold, or any part thereof, shall be laid out in town lots, that fact must be stated and the reasons therefor, and the manner in which the same is to be laid out. 13 It is to be observed in this connection that one of the re- quirements of the statute is that the petition must contain a pertinent description of the real estate of the ward. It has been held that where the petition describes certain real estate, izGen'l Code, §10945 (R. S. is Gen'l Code, §10946 (R. S. §6280). §6281). See Nos. 163 and 19.3 -for forms for petition. §§ 253, 254 MURWINK ON REAL ACTIONS. 282 it will be presumed, where the contrary does not appear, that the rea] estate dascribed in the petition is all of the ward's real estate. 1 ' Sec. 253. Guardian may notify defendants— Parties to the petition. Upon such petition being filed, verified by the oath of the guardian, the court is required to order the petitioner to givs notice to Ids ward, to the husband or wife of such ward, and to .ill persons entitled to the next estate of inheritance in such rea] estate who must be defendants to the petition, of the filing and demand thereof, and the time when the same is to be heard, in such manner as to the court shall seem reasonable and proper; but only the ward and husband or wife of such ward need be so notified or made defendants, unless the said estate came to such ward by devise, descent or deed of gift from an ancestor; and such ward has then living a brother or sister of the half-blood and of the blood of such ancestor or of their Legal representee. 1 r> The husband or wife are made parties defendant so that their dower may be released. Sec. 254. Hearing of petition— Appointment of appraisers- Survey into town lots. A I the time appointed for the hearing of the petition, and being satisfied that the notice named in th3 last preceding par- agraph has been given, and that such real estate ought to be sold, the law requires the court to appoint three freeholders u Mauarr v. Parish, 26 0. S. 636. "In :i proceeding under that stat- ute, the property of the ward was described in the guardian's petition as lots Nos. 7:!. 7 1 and 75, in East [ronton, and as having come to the ward by descent. The appraisement and order of sale in the case were of lots Nos. 17::. 17 1 and 175, in said town, the latter being the true description of three lots actually owned by her, ami which came to her by descent. In an action by the ward to recover one of these lots (No. 171) from a party claiming title under a sale made by the guard- ian in pursuance of this order of the court, Held: 'that it is to be presumed that the ward owned but the three lots actually sold, and that then' was a mere mistake in numbering them in the petition; and that there was enough in the petition to give the court jurisdic tion over the subject matter." Mauarr v. Parish, 26 0. S. 636. 16 See No. 104 for order of court, fixing time for hearing and manner of notice, and No. 165 for form of notice. See Nos. 166. 1<>7 and 108 for return and proof of service. 283 SALE OF WARD 's REAL ESTATE BY GUARDIAN. § 255 of the county in which the real estate of the ward, is situated, who are not of kin to the petitioner, to appraise said real es- tate ; and if such petition seeks to have the land or any part thereof laid out into town lots, and the court finds that it will be to the advantage of the ward to have the same done, the court must also authorize the survey and platting of the land for that purpose. 1 " Sec. 255. Should guardian ad litem be appointed for infant defendants. In case of the sale of real estate by administrators and ex- ecutors to pay debts, and in partition and other actions, guard- ians ad litem are required to be appointed and to file answers and to defend for their wards; but the statute seems to have made no provision for such guardians ad litem when the ward's real estate is sought to be sold in a proper action. It would be a prudent and safe course to adopt in such proceedings to have the court appoint guardians ad litem and require them to defend for their wards. 17 Sec. 256. Oath of appraisers. The appraisers must be sworn to truly and impartially ap- praise the real estate at the fair cash value thereof, and such oath must be endorsed on the certificate of their appointment or order of sale issued by the court. 1 * Sec. 257. Before sale of real estate the guardian must give an additional bond. Upon the appraisement of said real estate being filed, signed by said appraisers, the court must require the guardian to execute a bond with sufficient freehold securities, at least two in number in addition to the principal, payable to the State in double the appraised value of such real estate, with condi- tion for the faithful discharge of his duties, and the faithful payment and accounting of all moneys arising from sueh sales according to law. which bond shall be additional to that given is Gen" Code. §10348 ( R. S. also see Roberts v. Page, 61 0. S. §6283). See No. 163 et seq. for 96. forms. isGen'l Code, §10949 (R. S. it See S§ 38 to 44 inclusive, for §6284). See No. 172 for oath a general discussion of this subject; of appraisers. §§258,259 MERWINE ON REAL ACTIONS. 284 by the guardian according to his appointment ; and no court has the power to waive the giving of this additional bond, or jurisdiction lo order the side of such real estate until this bond shall have been given. 11 ' This statutory provision as to the bond required by a guard- ian in the sale of real estate, must be complied with. It will not now do to have the giving of this bond dispensed wilh by order of the court, reciting as the reason for such omission that the general bond already given is sufficient. Without the giving of the bond now required by the statute, the court is without the power to authorize a sale of the real estate. 20 Sec. 258. Surety and guaranty bonding companies are author- ized to execute such bond — Cost of same may be paid out of estate. It is provided that such guardian as principal and a bonding surety <>r guaranty company that has met the statutory re- quirements of this State to authorize it to do business here as surety, may execute such bond, and the guardian may pay for the reasonable expense thereof out of his ward's ^state. 21 Sec. 259. The order of sale — Terms of sale — The notice of sale — Private sale — Amount of sale. Upon such bond being filed and approved by the court, it is required to order a sale of such real estate at auction, for not less than two-thirds of the appraised value thereof, pro- viding in the order for reasonable notice and the place of such s;de in the county in which said real estate shall lie; and the credit to be given for the payment of the purchase money, and the deferred payments of the purchase money must be secured by ;i mortgage executed by the purchaser of the real estate sold, and they must hear interest at the legal rate per annum from the date of sale, payable annually; provided, however, that if it is made to appeal- to the probate court that it will he more to Ilie interest of the ward to sell such real estate at i»Gen'l Code, §10950 (R. S. arr v. Parish, 26 O. S. 636; Arrow- §(i28f)). See 17. - { for bond and smith v. Earmoning. ''2 0. S. 254; court's approval of same. McWhinney and Ryan v. Swisher, 20 See also Probate Law and l'rac- 58 < >. S. 378. ti<-<. Rockel, §1424; see also the "Gen'l Code, §9571 (R. S. following ca-c-, decided under vari- § 3641c). oils statutes on this subject. Mau- 285 SALE of ward's real estate by guardian. § 260 private sale, it may authorize such guardian to sell the same at private sale, either in whole or in parcels and upon such terms of payment as may be prescribed by the court, and in no case shall such real estate be sold at private sale for less than the appraised value thereof; and if the petition contains an application for the laying out into town lots of the land to be sold, or any part thereof, and the court approve the survey and plat made for that purpose, the court must also author- ize the guardian on behalf of his ward, to sign, seal and ac- knowledge the plat in that behalf for record according to law. 22 Sec. 260. Report of sale, confirmation and deed. Upon the return of the order of sale issued by the court, such guardian is required to make report of the sale by him made; whereupon the court, on being satisfied that such sale was fairly and legally made, must confirm the same, and order the petitioner to execute a deed of conveyance for the real estate so sold, upon the purchaser securing the deferred payments of the purchase money in the manner described in the last paragraph. 23 22Gen'l Code, §10951 ( R. S. 23 Gen'l Code, §10952 ( R. S. §6286). SeeJSTo. 176 and following §6287). See No. 177 for form for for forms. confirmation of sale, and No. 179 for form for guardian's deed. FORMS. PROCEEDINGS OF GUARDIANS OF AN INSANE PERSON —PUBLIC SALE OF REAL ESTATE. FORMS. 163. Petition by guardian of an insane person. 164. Order of court fixing time for hearing and manner of no- tice. 165. Notice to defendants. 166. Return of service of notice. 167. Order for no +: ce by guardian. 168. Guardian's return of notice and affidavit in proof of notice. 169. Waiver of summons and entry of appearance. 170. Answer disclaiming any inter- est in real estate. 171. Entry ordering appraisement and appointing appraisers. FORMS. 172. Order of appraisement issued to guardian — Guardian's return and appraisement and oath of appraisers. 173. Court's approval of appraise- ment and order for bond. 174. Court's approval of bond and order of sale. 175. Proof of publication and form of legal notice. 176. Order of sale to guardian and guardian's return of sale. 177. Entry confirming sale and or- dering deed. 178. Guardian's additional bond for sale of real estate. 179. Guardian's deed in sale of real estate. No. 163. The petition of guardian of an insane person to sell his ward's real estate. County, Ohio. No. In the Probate Court, W. B. P., as guardian of G. W. W., a lunatic. Plaintiff, vs. G. W., C, E. M., J. R. H.. A. W. K., administrator of the estate of L. L., deceased, F. A. D., E. D. S., K. D. and M. B., sisters of said G. W. W., M. W., G. W.. F. W., E. W., C. W. and C. W., children of C. W., deceased, a brother of G. W. W., W. W.. C. W., G. W., Mrs. M. S., Mrs. C. B., Mrs. S. W. G., only children of G. M. W., deceased, a brother of G. W. VY.. Defendants. Petition. Your petitioner, W. B. P., represents that he is the duly appointed, qualified, and now acting guar* ian of G. W. W., a lunatic, now of 286 287 FORMS. the age of about years, and now an inmate of the State Hospital, at Ohio, and that the said G. W. W. has been an inmate thereof for more than ten years, and is incurably insane. Your petitioner was appointed as such guardian by the Probate Court of County, Ohio, to succeed F. A. D., former guardian, resigned; that it is necessary to sell the real estate for the reason that the same is required for the payment of taxes, assess- ments, and the payment of the just debts of said ward; that the personal property of all kinds coming into the possession of your petitioner belonging to said ward will not exceed the sum of about $ , and that there is no other personal estate of any kind be- longing to said ward, to the knowledge of your petitioner, of any value. Said personal property of said ward consists of ■ , and is estimated to be worth about $ . Your petitioner says that he has a promissory note signed by J. E. C, upon which there is about $ due with interest, but that the same has no present value; that there is no personal estate of said ward dependent upon the settlement of decedent's estate, nor the execution of any trust, nor any expectancy; that said ward is the owner in fee simple of the following described real estate, situated in the City of , County, Ohio, and described as follows, to-wit: (Here describe real estate). Your petitioner has only received the sum of $ in rents from all the real estate of his ward since his appointment, and has % expended thereof the sum of $ in court costs, and insurance $ , leaving a balance of $ in the hands of your petitioner. The taxes for the last half of 19 , due , 1.9 , amounting to $ , are unpaid. The second and third described parcels of real estate are vacant, and produce no income. The first and fourth parcels are improved and produce, in the order named, — dollars ($ ) per month and dollars ($ ) per month. The income of said property is insufficient to pay the insurance, repairs, taxes and assessments, the cost of administration, and the debts of said estate; that the first parcel is encumbered by a mortgage for $ , dated on the day of , IS — — , for years at per cent. ( r / ( ) executed and delivered by G. W. W., then sane, to C. E. M.; that the interest on said note has been paid except about a year and a half, which is now due. Said note and mortgage, as your petitioner is informed and states, is now 'owned by one J. R. H, of , Ohio, who is now demanding payment of the principal and interest. Your petitioner states that the second parcel described is encum- bered by an uncancelled mortgage for dollars, due the estare of L. L. ; and that he is advised that this note and mortgage has been paid and discharged, but that the same is uncancelled of record. Your petitioner states that parcels numbered one, three and four are encumbered by a tax title due to E. D. S., amounting to KEEBWTNE ON REAL ACTIONS. 288 $ with interest as hereinafter stated. During the year 1S- and prior to the resignation of F. A. D.. as former guardian, this claim was settled by him without penalty, and upon a basis of per cent, interest upon the several amounts paid upon the tax title from the various dates of payment. The tax titles represented by this claim, with interest, are still outstanding upon the said several parcels of land described. Your petitioner states that there is an outstanding tax title upon the second parcel of land sold to one . but which was taken up and assigned to and is now owned by the said F. R. D.. and that the same is outstanding and uncancelled. Your petitioner is informed and so states, that the amount of this tax title has been included in the balance found due the said P. A. D.. former guardian, in the settlement of his final account as such guardian, and that including said tax title, there is a claim of a finding of the Probate Court in favor of the said F. A. D. as former guardian, in the sum of $ , with interest thereon from the day of . 19 . Your petitioner states that the said G. W. W. was never married and that said estate came to his ward by devise, descent, or deed of gift from an ancestor, and that the following persons now living of the blood of such ancestor are. namely: M. B.. K. D., sisters; X. W., G. W., F. \V.. E. W., C. W and C W.. only children of a de- ceased brother of said ward, namely. C. W. Your petitioner therefore prays that the said G. W. W., C. E. M.. ' J. R. H., A. K.. administrator of the estate of L. L.. deceased, F. A. D., E. D. S., K. D. and M. B., sisters of said G. W. W., M. W.. G. W., F. W., E. W., C. W. and C. W.. only children of C. W., deceased, a brother of G. W. W., W. W., C. W., G. W., Mrs. M. S.. Mrs. C. B.. Mrs. S. W. G., only children of G. M. W., deceased, a brother of G. W. W., may be made defendants to this petition, and that the rights and liens of said lienholders may be adjusted, and that your petitioner may be ordered to sell such part of said described real estate as may be necessary to pay the debts, costs and expenses, and for such other orders as may be proper in the premises Attorneys for Plaintiff. Petition should be verified as in other actions. No. 164. Entry fixing time for hearing and manner of notice. In the Probate Coubt, County, Ohio. Same caption aa in petition. I This day W. B. P., guardian of G. W. W., appeared in open court and filed his petition duly verified, asking for the sale of real estate therein described belonging to his said ward. It is ordered that the time of hearing of said petition be and it hereby is fixed for the day of . 19 , at a. m. 289 POl : It is further ordered that caii guardian cause notice thereof and of the filing and demand of said petition to be given to said G. W., C. E. M., J. R. H., A. W. K.. administrator of the estate of L. L., deceased. F. A. D., E. D. S.. K. D.. M. E.. M. W., G. W., F. W.. E. W., C. W.. . W. W., C. W., G. V.'.. Mrs. M. S., Mrs. C. B.. Mrs. S. W. G.. defendants in writing, to be served upon them personally by leaving copies thereof at the usual place of resi- dence of each of those who cannot be served personally, at least days before said day of hearing, and this cause is continued for service. No. 165. Notice to defendants. The State cf Ohio, County, ss. : To G. W. W., M. B. and E. D.. et al: You are hereby notified, that on the day of A. D. 19 , the undersigned as guardian, filed in the Probate Court of County, Ohio, a petition, the object and prayer of which is to procure said court to order the sale of the real estate of the said G. W. W., situated in the County o: . in the State of Ohio, and in the City of . and described as follows, to-wit: (Here describe real estat- Said petition will be for hearing by said court, on the day of . A. D. 19 . at o'clock a. m.. at which time an order will be asked, as prayed for in said petition. Dated this day of A. D. 19 . W. B. P.. Guardian of G. W. W. No. 166. Return of service of notice. The State of Ohio, County, ss.: Received this writ . 19 , at oclock a. m.. and on the day of . 19 , I served the same by deli'. ing a true copy thereof personally to the within named G. W. W. Also on the same day I served the same by leaving a true and duly certified copy of this writ with all the endorsements thereon at the usual place of residence of the within named defendant. M. B. Also on the day of A. D. 19 . I served the same by leaving a true and duly certified copy of this writ with all the endorsements thereon at the usual place of residence of the within named K. D. G. J. K.. Sheriff. No. 167. Order for notice by guardian. Pbobatk Court. Court*, Ohio. (Same caption as in petit: To W. B. P.. Guardian: You are hereby ordered to give notice to G. W. \Y., your ward, and C. E. X.. J R. H., A. W. K., administrator of the estate of L. L., MEKWTNE ON REAL ACTIONS. 290 deceased, F. A. D., E. D. S. ( K. D., M. B., M. W., G. W., F. W., E. W., C. W., C. W., W. W., C. W., G. W., Mrs. M. S., Mrs. C. B., Mrs. S. W. G., defendants to your petition, this day filed in said Probate Court, for the sale of the following described real estate of said ward, of the filing and demand of said petition and the time when the same will be heard, such notice to be given at least days before the time hereafter named for said hearing. The real estate so asked to be sold is described as follows, to-wit: (Here insert description of real estate). Said petition will be for hearing before said Probate Court, at the office of the judge of said court, in , Ohio, on , the day of , A. D. 19 , at o'clock m. You will make due service and return of this order. Witness my hand and the seal of said court at , this day of , A. D. 19 . S. L. B., Judge of Probate Court. No. 168. Guardian's return of notice and affidavit in proof of service. Received this order the day of , A. D. 19 , and thereupon served the said , , , , , , each personally, by copy, with the notice therein required to be given, which notice so served with proof of service is herewith returned, marked "A," and made a part of this report. W. B. P., Guardian. The State of Ohio, County, ss. : T, W. B. P., being duly sworn, say, that on the day of , 19 , I served this writ by delivering a true copy thereof personally to the following named persons, to-wit: C. E. M., F. A. IX, E. D. S., M. W., G. W., F. W., E. W., C. W., C. W., W. W„ C. W., G. W., Mrs. M. S., Mrs. C. B., and Mrs. S. W. G. W. B. P. Sworn to before me and signed in my presence, this day of , 19 . S. L. B., Probate Judge. No. 169. Waiver of summons and entry of appearance. The State of Ohio, County, ss. To (J. W. W., et al: You are hereby notified, that on the day of A. D. 19 , the undersigned as guardian, filed in the Probate Court. of County, Ohio, a petition, the object and prayer of which is to procure said court to order the sale of the real estate of the said G. W. W., situated in the County of , in the State of 291 FORMS. Ohio, and in the City of , and described as follows, to-wit: (Here insert description of real estate). Said petition will be for hearing by said court, on the day of , A. D. 19 , at o'clock a. m., at which time an order will be asked, as prayed for in said petition. Dated this day of , A. D. 19 . W. B. P., Guardian of G. W. W. Received copy of the above notice. C. B, W. H. W„ S. W. G., G. G. W., M. E. S., C. M. W. In the Probate Court, County, Ohio. (Same caption as in petition.) Waiver of Summons and Entry of Appearance. We, the undersigned, defendants herein, hereby waive the issuing and service of summons against us in the above entitled cause, and hereby enter our appearance as defendants herein. M. W., E. W., C. K. W., G. W., C. A. W., F. W., E. D. S., F. D., C. E. M., J. R. H. No. 170. Answer disclaiming any interest in real estate. In the Probate Court, County, Ohio. (Same caption as in petition.) Now comes the defendant, A. W. K., formerly the administrator of the estate of L. L., deceased, and for his answer herein says: That his and final account as such administrator was filed in the Probate Court of County, Ohio, on , 19 , and was by said court confirmed on , 19 , the said estate settled, and the said administrator and his bondsmen dis- charged by order of said court. This defendant, if such he properly be, in view of the fact that his said representative capacity and functions have long since ceased and terminated as aforesaid, nevertheless says that he fully KERWINE ON HEAL ACTIONS. 292 conferred with all those interested in the estate of said L. L.., de- ceased, and upon full consideration believes that they, as such heirs, as well as said estate, have no claim nor interest in or to the property in the petition mentioned and described, nor in the subject matter of this action; that they believe that the mortgage in the petition set forth as being uncancelled of record, being a mortgage executed in favor of their said relative L. L., as in the petition set forth, has, as a matter of fact, been satisfied, and the debt secured thereby paid. Wherefore, this defendant in his said supposed capacity as ad- ministrator of the estate of L. L., deceased, prays that this action as to him in such supposed representative capacity and in every respect and as to the heirs of said L. L., deceased, may be dismissed with costs. A. W. K., Attorney for said Defendant. Duly verified. No. 171. Entry ordering 1 appraisement and appointing ap- praisers. This cause coming on to be heard upon the petition of W. B. P., guardian of G. W. W., a lunatic, for the sale of real estate described therein, and it appearing to the court that due and proper notice according to law and the order of this court has been giveji to the said lunatic and to the defendants, and that, as alleged in said petition, it is necessary to sell said real estate of said lunatic for the purposes of paying his debts; it is therefore ordered by the court that said property described in the petition be appraised by J. G. P., A. W. D. and T. E. H., three judicious freeholders of the vicinity, and not of kin to the petitioner or of the defendants, who are hereby appointed to appraise said lands at their fair cash value in money. It is therefore ordered that said appraisers be sworn, as accord- ing to law, and afterward, upon actual view, to perform the duties required of them, and make return of their proceedings in writing to this court without delay. No. 172. Order of appraisement to the guardian — Guardian's return and oath of appraisers — Also appraisement. I\ Peobate Court. The State of Ohio, County, ss.: To W. B. P., as Guardian of G. W. W., a lunatic. Greeting: In obedience to an order and decree of the Probate Court within and for said county made this day in a certain cause wherein you as the guardian of G. W. W., a lunatic, are complainant, and G. W. W., et al, are defendants, a certified copy of which is hereto attached, you are commanded that by the oaths of J. G. P., A. W. D. 293 FORMS. and T. E. H., judicious and disinterested men of the vicinity, and upon actual view of the premises, you cause a just valuation and appraisement to be made, according to law, of the following described premises, to-wit: (Here insert description of real estate). And re it Pubtheb Ordered. That you make return of your pro- ceedings herein forthwith upon the execution of this order. Witness my signature, and the seal of said Probate Court at — , this day of , A. D. 19 . S. L. B., Probate Judge. To the Probate Court of County, Ohio: In obedience to the foregoing order, I have caused an appraisement to be made of the premises therein described, as will more fully appear by the proceedings of the appraisers, hereto annexed. , 19 . W. B. P., Guardian of G. W. W. The State of Ohio, County, ss.: On the day of , A. D. 19 , before me personally appeared J. G. P., A. W. D. and T. E. H. within named, and made solemn oath that they would, upon actual view, honestly and im- partially appraise the within described real estate at its fair cash value, in pursuance of the foregoing order. J. G. P., A. W. D., T. E. H. Appraisers. Sworn to and subscribed before me, this day of 19 . W. P. Jr.. Notary Public in and for County, Ohio. No. 173. Court's approval of appraisement and order for bond. In the Probate Court, County, Ohio (Same caption as in petition.) This day came the plaintiff by his attorneys, and produced to the court the report of the appraisement herein made by J. G. P., A. W. D. and T. E. H., in pursuance of a former order of this court; and it appearing upon examination that said report is in all respects regular and correct, it is ordered that the same be, and it hereby is approved and confirmed. It is further ordered that said W. B. P. execute within three day to the State of Ohio, a bond with sufficient freehold sureties tc be approved by the court, in the sum of dollars ($ ), conditioned according to law. MERWINE ON REAL ACTIONS. 294' No. 174. Court's approval of guardian's bond and order of sale. I.\ the Probate Coukt, County, Ohio. (Same caption as in petition.) This day this cause came on further to be heard, and it appear- ing to the court that the said W. B. P., guardian, etc., the plaintiff above named, has given bond as heretofore ordered, in the sum of dollars ($ ), with M. S. P. and W. P., Jr., as sureties, it is ordered that said bond be, and it hereby is, approved. It is therefore further ordered that said W. B. P. as such guardian, proceed according to law to sell the first and second parcels of land described in said petition at public auction, at the door of the court house, for not less than two-thirds (2-3) of the appraised value thereof, and on the following terms, to-wit: One-third (1-3) cash in hand on day of sale, one-third (1-3) in one year, and one- third (1-3) in two years from the day of sale; deferred payments to be secured by mortgage on the premises sold, and to bear interest from the day of sale, payable annually. It is further ordered that said W. B. P. as such guardian give notice weeks consecutively of the terms and time and place of sale prior thereto in some newspaper printed and of general circulation in — County, Ohio, where said real estate is situated. And he is hereby ordered to make return to this court immediately after such sale is made. No. 175. Proof of publication and form of legal notice. State of Ohio, County, ss.: J. H. B., foreman of The , a newspaper published and printed in , County, Ohio, personally appeared and made oath that the attached printed advertisement was published four consecutive weeks in said newspaper, i. e., on , 19 ; and that said newspaper is of general circulation in said county. J. H. B. Subscribed and sworn to this day of , 19 . P. M. S., Notary Public in and for County. In the Probate Court, County, Ohio. (Same caption as in petition.) In pursuance of an order of the Probate Court of County, Ohio, by me directed, I will offer for sale at public auction at the door of the court house in the City of , Ohio, on , 19 , at o'clock, m., the following described property belonging to G. W. W., a lunatic, to-wit: (Here insert description of real estate). Terms of sale: One-third cash, one-third in one, and one-third in 295 FORMS. two years, secured by mortgage at six per cent, interest, payable annually. ' W. B. P., Guardian of G. W. W., by P. & P., Attorneys. No. 176. Order Af sale to guardian — Guardian's return of sale. In Probate Court. The State of Ohio, County, ss.: To W. B. P. Guardian of the estate of G. W. W., a lunatic, Greeting: In obedience to an order and decree of the Probate Court within and for said county, made this day, in a certain cause wherein you, as the guardian of the estate of G. W. W., are complainant, and G. W. W., et al, are defendants, a true copy of which order and decree is hereto attached, you are commanded to proceed, accord- ing to law, to sell the following described premises, after giving four weeks' notice by publication in some newspaper printed and of general circulation in said county, to-wit: Situated in the city of — ■ — -, County, Ohio, and described as follows, to-wit: (Here insert description of real estate). Said sale to be by public auction at the door of the court house for not less than two-thirds the appraised value thereof and upon the following terms: One-third cash in hand on day of sale, one- third in one year and one-third in two years from day of pale, the deferred payments to be secured by mortgage on the premises, and to bear interest from the day of sale, payable annually. You will make return of your proceedings immediately after executing this order. Witness my hand and the seal of the court at , Ohio, this day of , 19 . S. L. B., Probate Judge. Guardian's Return. In obedience to the within order, I duly advertised the real estate therein described for sale, for four consecutive weeks before the day of sale in the , a newspaper published and of gen- eral circulation in said county, stating in said notice, the time, place anr 1 terms of said sale; and on the day of A. D. 19 , I attended personally the sale and at the hour of o'clock, m., I offered said real estate for sale, and then and there publicly struck off and sold the first parcel to F. A. B. and M. E. B. for the sum of dollars, they being the highest and best bidders therefor, and that being more than two-thirds the appraised value thereof, and then and there also publicly struck off and sold the second parcel to W. N. W. for the sum of dollars, he being the highest and best bidder therefor, and that being more than two-thirds its appraised value. W. B. P., Guardian of G. W. W. Dated the day of , A. D. 19 . MF.RWIXE OX KE\L ACTION.-. 296 No. 177. Entry cormrming sale and ordering deed. This day this cause came on to be heard upon the return of the order of sale by W. B. P.. guardian of G. W. W.. an insane person, and the motion of said guardian to confirm the same as to the second parcel. The court upon careful examination and consid- eration of said return and the proceedings of said guardian under said order of sale, and finding the same in all respects regular and in conformity to the law and the orders of this court, the same is hereby approved and confirmed. It is also further ordered that the said W. B. P.. as guardian of said G. W. W., execute and deliver to the purchasers W. N. W. and C. L. M. a good and sufficient deed for the second parcel described in the petition and the order of sale, whenever the said W. N. W. and C. L. M. have complied with the terms of said sale. It being made to appear to the court that said purchasers desire to pay cash for said property instead of upon the terms fixed by the court and the court finding that such payment in cash is for the interest of said estate, said W. B. P. is hereby ordered to accept said cash payment instead of deferred payment.. secured by mortgage. No. 178. Guardian "s additional bond in proceedings to sell real estate. Kxow all Mrs by These Presents: That we. W. S. P. and W. P.. of the County of . and the State of Ohio, are held and firmly bound unto the said State of Ohio, in the sum of § for the payment whereof, well and truly to be made, we bind our- selves and each of us. our heirs, executors and administrators, and each of them, firmly by these presents. Signed by us and dated at , this — — day of , 19 . The condition of the above obligation is such, that Whebeas. on the day of . 19 . W. B. P.. as guardian of G. W. W., filed a petition in the Probate Court of said county against said ward G. W. W., for the sale of the real estate of said ward. G. W. W., described in said petition: and Whereas, by decree of said court made in said cause on the day of . 19 . it was considered by said court that said real estate ought to be sold as prayed for in said petition and appointed J. G. P. and A. W. D. and T. E. H.. three judicious freeholders of said county and not of kin to the petitioner, to ap- praise said real estate according to law; and Whereas afterwards, to-wit: on the day of , 19 . said appraisers filed in said court their appraisement of said real estate in writing, signed by them, from which it appears that they appraised the s~-me at the sum of S : and Whebeas, said couit upon said appraisement being filed as afore- said, made an order requiring said W. P. P.. as guardian as afore- said, to execute a bond in the sum of ? , with sufficient free- 2f J 7 FORMS. holders' securities, payable to the State of Ohio, and conditioned according to law, Now. if the said W. B. P., guardian as aforesaid, shall well and faithfully discharge each and every of his duties as such guardian, and well and faithfully pay over to the proper person or persons and account for all money arising from the sale of said real estate according to lav.-, then these presents to be void, otherwise to be and remain in full force and virtue in law. Signed and delivered in presence of No. 179. Guardian's deed in sale of real estate. Know all Men by These Presents: That whereas, on the day of . 19 . W. B. P. was duly appointed as guardian of G. W. W. by the Probate Court of County. Ohio, and afterward, to-wit: on the day of . 19 . said guardian filed his certain petition and then and there commenced an action in the Probate Court of County. Ohio, against G. W. W.. and numbered on the docket of said court as case No. . praying among other things for an order of sale of real estate therein mentioned and hereafter described; and Whereas, such proceedings were had in such action, that on the day of . 19 . said court finding the allegations of said petition true, and that said real estate ought to be sold as prayed for in said petition, ordered that the same be appraised, and. on the day of . 19 . said court further ordered that said W. B. P. proceed according to law to sell said real estate at public sale for not less than two-thirds the appraised value thereof: and on the same day in pursuance of said order and judgment, an order of sale of said real estate therein described was issued out of said court, under the seal thereof, to the said W. B. P.. as guardian as aforesaid directed, commanding him to execute said order, and of the same, together with his proceedings thereon, to make due return; and Whereas, said W. B. P. having caused said premises to be ap- praised and the report of such appraisement to be filed in said Probate Court, and having on the day of . 19 . returned said order of sale to said court as commanded, with his proceedings thereon, stating in substance that in obedience to said order he duly advertised the real estate therein described for sale for four consecutive weeks before the day of sale in . a newspaper printed and of general circulation in Ohio. - in said notice the time and place of sale, and on the lay of . 19 . he attended at the time and place of sal;- and at the hour of o'clock, a. m. he offered said real estate MERWTNE ON REAL ACTIONS. 298 hereinafter described, for sale, when W. N. W. bid to pay for the same the sum of $ , which being the highest and best bid for the same that was offered, and being more than two-thirds of the appraised value of said premises, he then and there sold the same to said W. N. W. for that sum; and Whereas, on the day of , the said court having examined the proceedings cf the said W. B. P. aforesaid, under this order of sale, and it appearing to the court that said sale was in all respects legally made, ordered that the same be approved and confirmed, and that said W. B. P. as such guardian should execute and deliver a proper deed to the purchaser of the real estate so sold, all of which will more fully appear by the records of said court, to which reference is here made, Now Therefore I, the said W. B. P., as guardian of said G. "W. W. aforesaid, by virtue of said judgment, order of sale, sale and confirmation, and of the statute in such cases made and provided, and of the powers vested in said guardian, and for and in considera- tion of the premises and the sum of $ paid or secured to be paid to said W. B. P., do grant, bargain, sell and convey unto the said W. N. W., his heirs and assigns forever, the following real estate, situate in the County of in the State of , and in the City of , and bounded and described as follows: To Have and to Hold said premises with all the privileges and appurtenances thereunto belonging to the said W. N. W., his heirs and assigns forever, as fully and completely as W. B. P. as such guardian by virtue of said judgment, order of sale, sale and con- firmation, and of the statute made and provided for such cases, might or should sell and convey the same. In Witness Whereof, the said W. B. P., as such guardian, has hereunto set his hand this day of , 19 . W. B. P., As Guardian of G. W. W. Signed and acknowledged in the presence of State of Ohio, County, ss.: Be tt Remembered, That on this day of , 19 , before me, the subscriber, a Notary Public in and for said county, personally came the above named W. B. P., as guardian of G. W. W., the grantor in the foregoing deed, and acknowledged the signing of the same to be his voluntary act and deed, as such guardian, for the uses and purposes therein mentioned. In Testimony Whereof, I have hereunto subscribed my name and affixed my official seal on the day and year last aforesaid. Notary Public, County, Ohio. 299 FORMS. PROCEDURE FOR THE PRIVATE SALE OF REAL ESTATE BY GUARDIAN OF AN INFANT. FORMS. 180. Procedure for private sale of real estate of an infant — The petition. Summons, service and return of sheritl'. Application for appointment of guardian ad litem. Entry appointing guardians ad litem for infant defend- ants. Answer of guardian ad litem. Entry by court ordering ap- praisement. Order issued to appraisers — Appraisement — Oath of ap- praisers and return of ap- praisement by guardian. Confirmation of appraisement and the order for the addi- tional bond. Application to sell real estate at private sale, and affidavits supporting the same. 131. 182. 183. 184. 185. 186. 187. 188. FORMS. 189. Court's order to sell at pri- vate sale. 190. Order to sell at private sale issued to guardian and guardian's affidavit of sale. 191. Guardian's report of private sale. 192. Entry confirming private sale, ordering deed and distribu- tion of proceeds. 193. Another form for petition to sell ward's real estate. 194. Answer of widow setting up dower estate. 195. Order appointing trustee to answer for insane defend- ant. 196. Answer of such trustee of an insane person. 197. Another form for answer of widow setting up dower. 198. Court's order substituting ap- praiser. 199. Order of court setting aside an erroneous appraisement. No. 180. Petition to sell real estate. In the Probate Court, County, Ohio. H. G., as guardian of M. B. H., a minor, Plaintiff, vs. No. . M. B. H., a minor, aged » years, and B. M. H., Defendants. The plaintiff represents that he is the duly appointed and qualified guardian of the defendant M. B. H., now of the age of years, and residing with his father, B. M. H., at No. , Street in the City of , Ohio; that Said ward is the owner in fee simple of an undivided one- fourth interest in lots Nos. and of R. A.'s Subdivision of Inlot No. in the City of , Ohio, as the same are num- bered and delineated upon the recorded plat of said subdivision of record in the recorder's office of County, Ohio, Deed Book , page ; the remaining three-fourths interest in the above described premises being owned by R. A. H., M. L. and H. N. MEKWINE OM REAL ACTIONS. 300 in equal shares of one-fourth each. Said real estate rents for a total of dollars per year, which would make said ward's share of said rentals dollars per year, subject to his propor- tionate share of the taxes, maintenance and repair of said premises; that plaintiff has not as yet received any rents whatever from any of said ward's real estate; that The sale of said real estate is necessary both for the main- tenance of said ward and the plaintiff believes it will be for the interest of said ward to sell said real estate and reinvest the money arising therefrom either in State, county or municipal bonds, or in loans upon first mortgage securities according to law; that The defendant, B. M. H., father of said ward has the next estate of inheritance in said real estate. The plaintiff therefore prays that the said M. B. H. ana B. M. H. may be made defendants to this petition, and that plaintiff may be ordered to sell said real estate and to reinvest the money arising therefrom as hereinbefore proposed, and for all other and proper relief. &■ & G., Attorneys for Plaintiff, Petition should be verified as in other eases. For waiver of summons and entry of appearance, see No. 169. No. 181. Summons, service and return of sheriff. The State of Ohio, County, ss.: To the Sheriff of said County: You are commanded to notify M. B. H., a minor aged years, residing with his father B. M. H. at St., , Ohio, that on the day of A. D., 19 , H. G., guardian of the estate of M. B. H. filed his petition in the Probate Court of said County, Ohio, against him and others; the object and prayer of which petition is to obtain an order for the sale of certain real estate belonging to said ward, in said petition described, for the maintenance of said ward, or reinvest the money arising therefrom according to law, and that unless they answer by t ne day of , 19 , said petition will be taken as true, and an order granted accordingly. Yon will make due return of this writ on the day of A. D. 19 . Witness my hand and the seal of said court, this day of A. D. 19 . 8. L. B., Judge and Ex Officio Cleric of said Co. Sheriff's Return. The State of Ohio, County, ss.: Received this writ A. D. 19 , at o'clock v... und pursuant to its command, I served the same upon the within named M. B. 11.. a minor, and B. M. H., the father of said M. B. H. by leaving a true and duly certified copy of this writ with all the 301 FORMS. endorsements thereon at the usual place of residence of each of them, not finding after due and diligent search, a guardian of said M. B. H. G. J. K., Sheriff. No. 182. Application for appointment of guardian ad litem. In the Probate Court, County, Ohio. H. G., as guardian of M. B. H., a minor, Plaintiff, vs. No. . M. B. H., a minor, aged years, and B. M. H.. Defendants. Now comes the plaintiff, by G. & G., his attorneys, and hereby applies for the appointment of a guardian ad litem for said M. B. H., a minor defendant in this cause, and that W. C. B. be appointed eaid guardian. H. G., Guardian of M. B. H., By G. & G. His Attorneys. No. 183. Entry appointing guardian ad litem for infant de- fendants. In the Probate Court, County, Ohio. iH. G., as guardian of M. B. H., a minor, Plaintiff, vs. No. . M. B. H., a minor, aged years, and B. ]\I. H., Defendants. This cause coming on this day to be heard and it appearing to the court that M. B. H., a minor defendant hereto, has been duly and legally served with process herein and notified of the pendency and prayer of plaintiff's petition, the court on motion of G. & G., counsel for plaintiff, hereby appoints W. G. B. guardian ad litem for said minor defendant, and thereupon the said W. G. B. appearing in open court accepts said appointment. No. 184. Answer of guardian ad litem. In the Probate Court, County, Ohio. H. G., as guardian of M. B. H., a minor, Plaintiff, vs. No. . M. B. H., a minor, aged years, and B. M. H., Defendants. Now comes W.. G. B., guardian ad litem, heretofore appointed in this cause by said court for the said M. B. H., minor defendant to the petition in said cause and for answer to said petition denies all of the material allegations therein contained prejudicial to said MEKWINE ON REAL ACTIONS. 302 minor defendants, and further says that said minor defendant is of tender years and not acquainted with the law in such cases. He therefore prays the court to protect his rights in this case and for such relief as may be just. W. G. B. No. 185. Entry by court ordering appraisement. Is the Probate Court, County, Ohio. H. G., as guardian of M. B. H., a minor, Plaintiff, vs. No. » M. B. H., a minor, aged years, and B. M. H., Defendants. This day this cause came on to be heard upon the petition of plaintiff, exhibits and testimony, and upon the return of the sheriff heretofore ordered, and the answers of B. W. H. and W. H. B., the guardian ad litem of M. B. H.; and the court being fully advised in the premises, finds That the defendant, M. B. H., has been duly and legally served with process and duly notified of the pendency and prayer of the petition as prescribed by law, and that the defendant B. M. H. has duly waived the issuing and service of process herein and entered his appearance in this cause and consented in writing to the prayer of the peti- tion herein. That the statements of said petition are true and that the real estate described therein ought to be sold as prayed for in said petition. Therefore it is ordered that V. H., P. J. M. and J. S., judi- cious freeholders of this county and not of kin to the petitioner be, and they are hereby appointed appraisers in said cause, and that they be sworn as required by law before entering upon the discharge of their duties as said appraisers; that said appraisers upon actual view of the premises described in said petition, appraise the same at its fair cash value and that said appraisers make return of their appraisement and their doings herein to this court on or before the day of A. D., 19 . No. 186. Order issued to appraisers — Appraisement — Oath of appraisers — Return of appraisement by guardian. Probate Court. The State of Ohio, County, ss.: To H. (7., Guardian of M. B. H., a minor, Greeting: Tn obedience to an order and decree of the Probate Court within and for said county, made this day in a certain cause wherein you as guardian of M. B. H., a minor, are plaintiff, and M. B. H., et al, 303 FORMS. are defendants, you are commanded that by the oaths of V. A., P. J. M. and J. S., judicious, disinterested men of the vicinity, not of kin to the petitioner, who are freeholders of the county in which said real estate is situated, and upon actual view, you cause a just valuation and appraisement to be made according to law, of the following described premises therein, to-wit: (Here insert descrip- tion of real estate). You will make return of your proceedings herein to our said Probate Court forthwith upon execution of said order, and have you then and there this writ. Witness my signature as judge and ex officio clerk of our said Probate Court, and the seal of said court, at , Ohio, this day of , A. D. 19 . S. L. B., Probate Judge. Return. To the Probate Court of County, Ohio.- In obedience to the foregoing order, I have caused the same to be duly executed as will fully appear by the proceedings hereto attached. Dated this day of , 19 . H. G., Guardian of M. B. H. Oath of Appraisers. The State of Ohio, County, ss. : We, the undersigned appraisers, do make solemn oath that we will, upon actual view, honestly and impartially appraise the within described real estate at its fair cash value, and perform the duties required of us in pursuance of the foregoing order. V. A., P. J. M., J. S., Appraisers. Sworn to before me and signed in my presence this day of , 19 . G. J. N., Notary Public, County, 0. Appraisement. In obedience to the foregoing order, after being first duly sworn, and upon actual view of the premises therein described, we, the undersigned appraisers estimate the value of said real estate at dollars. Given under our hands, this day of , 19 . V. A.. P. J. M., J. S.. Pees of appraisers, $ per day each. Appraisers. MEKWTNE ON 1JEAL ACTIONS. 304 No. 187. Confirmation of appraisement and additional bond. H. G., as guardian of M. B. H., a minor, Plaintiff, vs. No. . M. B. H., a minor, aged years, and B. M. H., Defendants. This day came the appraisers heretofore appointed in this case, and filed their report herein, all of which being examined, the court finds has been duly made. It is thereupon ordered by the court that said report be approved and confirmed. It is further ordered that the said H. G. execute to the State of Ohio, a bond with sufficient surety to the acceptance of the court in the sum of dollars, being more than double the amount of the appraised value of the real estate, conditioned according to law. No. 188. Application to sell at private sale — Affidavits sup- porting' same. H. G., as guardian of M. B. H., a minor. Plaintiff, vs. No. . M. B. H., a minor, aged years, and B. M. H., Defendants. The undersigned applicant represents that it would be best for the interest of the said H. G., guardian of M. B. H., to sell the real estate described in the petition in this cause at private sale for the following reasons: That the interest of said ward is an undivided one-fourth, which can not be sold for the full appraised value thereof, unless the proposed purchaser could acquire the remaining three-fourths interest of said premises; that an offer has been made to purchase the entire property for $ , and if the interest of the ward can be sold for one-fourth of said purchase price, it will be more than could be received if attempted to be sold without the purchaser buying the re- maining interest, and it will further save the estate the cost con- nected with the advertising thereof at public sale. The applicant therefore asks for an order authorizing him to sell said real estate at private sale. H. G., Guardian of M. B. H. State of Ohio, County, ss. : H. G., being duly sworn, says that the various matters set forth in the foregoing application are true as he verily believes. H. G., Sworn to and subscribed before me by the said H. G., this — day of , 19 . N. G., Notary Public, County, Ohio. 305 FORMS. State of Ohio, County, ss. : V. A., being duly sworn, says that he has read the application to which this affidavit is annexed; that he has no interest whatever in the matters therein referred to, and that it will be best for the interests of said M. B. H. to sell said land at private sale, as he verily believes. V. A. Sworn to and subscribed before me this day of , A. D. 19 . N. G., Notary Public in and for County, Ohio. No. 189. Order to sell at private sale. H. G., as guardian of M. B. H., a minor. Plaintiff, vs. No. . M. B. H., a minor, aged years, and B. M. H., Defendants. This cause coming on this day further to be heard, and it appearing to the court that the appraisement heretofore ordered has been made and confirmed by the court; that said H. G., guardian of plaintiff above named, has given bond in double the amount of said appraise- ment with surety conditioned as provided by law, and which bond is approved by the court, and it having been made to appear upon satis- factory evidence to the court that it would be for the interest of said ward to sell the real estate described in the petition in this cause at private sale, it is therefore ordered by the court that the petitioner pro- ceed to sell the premises in the petition described at private sale for not less than its appraised value, for cash, and that the petitioner make due return of his proceedings herein subject to the further order of this court. No. 190. Order to sell at private sale issued to guardian — Report of sale by guardian and guardian's affidavit of sale. The State of Ohio, County, ss.: To II. C. Guardian of M. B. H., a minor. Greeting: In obedience to an order and decree of the Probate Court within and for said county, made this day, in a certain cause No. , now pending in said court, wherein you, as guardian of M. B. H., a minor, are plaintiff, and your ward et al, are defendants, you are com- manded to proceed according to law, to sell at private sale for not less than the appraised value thereof, the following described premises, to-wit: (Here insert description of real estate). Said sale to be at private sale, and to be upon the following t< i-'-.r: Cash. MERWINE ON REAL ACTIONS. 306 You will make return of your proceedings to this court forthwith upon execution of this order. Witness my signature and the seal of said Probate Court at : , Ohio, this day of , A. D. 19 . S. L. B., Probate Judge. No. 191. Guardian's report of private sale. In obedience to the within order, I sold said premises on the day of , A. D. 19 , to W. B. P., for the sum of $ , said sum being the appraised value of the same. H. G., Guardian of M. B. H. Dated the day of , A. D. 19 . The State of Ohio, County, ss.: The above named H. G., guardian of M. B. H., being duly sworn, says that the sale above reported has been made after diligent endeavor to obtain the best price for said property, and that said sale is for the highest price he could get for said property. H. G., Guardian of M. B. H. Sworn to before me and signed in my presence, this day of , A. D. 19 . S. L. B. ( Probate Judge. No. 192. Confirmation of sale, deed ordered and distribution of proceeds. H. G., as guardian of M. B. H., a minor, Plaintiff, vs. No. . M. B. H., a minor, aged years, and B. M. H., Defendants. This day this cause came on to be heard upon the motion of the petitioner to confirm the sale made in obedience of the order hereto- fore made in this case; and the court having carefully examined the proceedings of petitioner upon said order of sale, and finding them in all matters correct, and being satisfied that said sale was fairly and legally made, does order that the same be, and.it is hereby approved and confirmed, and it is further ordered that the petitioner make a deed of all the right, title and interest of the said M. B. H. in and to said lands to the purchaser named in the petitioner's report of sale herein, and It is further ordered that the petitioner pay out of the proceeds arising from the sale of said lands: 307 FORMS. First: The taxes for the last half of the year , amount- ing to $ . Second: The costs of this proceeding, taxed at $ , which costs, including a counsel fee of $ , to G. & G., attorneys, must be paid within ten days, or in default thereof that execution issue therefor. 193. Petition for sale of real estate by guardian of an insane person. Probate Court or — County, Ohio. E. W., Guardian of F. L. W., an insane person, Plaintiff, vs. NO. :. E. W., The B. S. B. & L. Co., The H. Bank, The F. N. Bank of , Ohio, E. C, R. B., M. C, A. W., a minor, C. G. W., a minor, M. C. W., a minor, M. A. W., a minor, J. C. W., a minor, F. L. W., an insane person, Defendants. Petition to sell Real Estate. The plaintiff is the duly appointed, qualified and acting guardian of the person and estate of F. L. W., an insane person, aged years, said appointment having been made by the Probate Court of — County, Ohio. The defendant. E. W., is the wife of the said F. L. W., and is possessed of an inchoate right of dower in the real estate hereinafter described. The B. S. B. & L. Company and The F. N. Bank of Ohio, are corporations; The H. Bank is a partnership; the defendants, Q. W., aged years; G. G. W., aged years; M. C. W., aged years; M. K. W., aged years, and J. C. W., aged years, are all of the children of the said F. L. W., and together with the said E. W., the mother of said minor children, are all of the persons entitled to the next estate of inheritance in the real estate hereinafter described. The personal estate of the said ward that has come to the knowl- edge of the plaintiff, consists of a certain stock worth about $ , and altogether does not amount to more than $ . The said guardian has made no disposition of the said personal estate at this time, but intends to sell the same. The said ward has no personal estate dependent upon the settle- ment of any of decedent's estate, or upon the execution of any trust. The annual rental value of the real estate hereinafter mentioned, is about $ per year. The said guardian has not collected any rent since her appointment. MERWINE ON REAL ACTIONS. 308 It will be necessary to use the proceeds of the sale of the real estate to pay the debts of the said ward. Said real estate is owned in fee simple by said ward, and is situated near the village of , Township, County, Ohio, and is more particularly described as follows, to-wit: (Here insert description of real estate). The defendant, The B. S. B. & L. Company, has a mortgage upon said real estate upon which there is due about the sum of $ . The H. Bank claims a mortgage on said real estate, amounting to about $ , the same now being owned and held by The F. N. Bank of , Ohio. The said ward is indebted to The H. C. A. B.'s Company in the sum of about $ ; to C. S., of , Ohio, in about the sum of $ ; to E. E. S. & Company, of , Ohio, in the sum of about % ; and owes various other smaller accounts, the exact nature of the same being unknown to the plaintiff. It is necessary to sell the said real estate in order to pay the said debts, the personal estate of the said ward being insufficient to pay said debts, and the above real estate being all of the real estate .owned by the said ward. The said ward is now confined in the hospital for the insane in — County, Ohio. The defendants, R. B., M. C. and E. C. have or claim to have some interest in said real estate, and plaintiff prays that they may be compelled to set up herein whatever interest they have or be forever barred from asserting the same. In the opinion of this plaintiff it will be to the best interest of the estate of the said ward and to the best interest of said creditors to sell said real estate at private sale, but the plaintiff should be authorized to sell the said real estate at public sale according to law, in the event the same is not sold at private sale. Wherefore, The plaintiff prays that the court will fix a time for the hearing of this petition and for the service of notice upon all defendants, and that upon a hearing of this matter, the plaintiff may be ordered to sell the said real estate at private sale, or at public auction in accordance with law, and that the plaintiff may be given all relief to which she is entitled. F. C. R., Attorney for Plaintiff. Petition should be verified as in other cases. No. 194. Answer of widow setting r.;o dower estate. i Same caption ;i^ in petition, i Now comes E. W., and for her answer herein, says she is the wife of F. U. W-i :i'i ( i 'bat the said F. L. W. is seized in fee simple of the real estate mentioned and described in the petition herein, and that. tb^e said F. L. W. is years of age, and that she is years of age, and that she is possessed of an inchoate right of dower in. the real estate described in the petition. 309 FORMS. This answering defendant prays that upon the sale of the real estate her rights may be protected and her dower allowed. F. W. C, Attorney for E. W. Answer should be verified as in other cases. No. 195. Order appointing trustee to answer for insane de- fendant. (Same caption as in petition.) It appearing to the court that the defendant in this case, F. L. W., is manifestly an insane person, and that his legal guardian has an interest in this action adverse to said defendant, it is hereby ordered that S. A. S. be, and he hereby is appointed trustee for said defendant in this suit, to appear and defend the same. No. 196. Answer of such trustee of an insane person. (Same caption as in petition.) And now comes the defendant, F. L. W., an insane person, by S. A. S., his duly appointed trustee herein, and for answer to the petition of the plaintiff denies each and every material allegation contained in said petition that is in any way prejudicial to this defendant. S. A. S., As Trustee of F. L. W., an insane person. Answer should be verified as in other cases. No. 197. Another form for answer of widow setting up dower. In the Probate Court of County, Ohio. E. K., as guardian of H. K. and H. K. minors, Plaintiff, vs. No. . H. K., a minor, H. K., a minor, C. K. and E. K., widow of J. F. K., deceased, Defendants. Answer of E. K. Now comes E. K. and waives the issuing and service of summons and enters her appearance herein, and consents to the sale of the interest of said H. K. and H. K., minors, in the real estate de- scribed in said petition, and further answering, says that she is the widow of J. F. K., who died seized of the real estate in the petition described, and which real estate descended to the said H. K. and H. K., minors, and C. K., the only heirs and children of the said J. F. K., in equal portions, and that each thereof is entitled to an undivided one-third interest in said real estate. MERWINF ON REAL ACTIONS. 310 That she is entitled to her dower interest in said real estate. The said B. K. therefore concurs in the prayer of said petition and asks that her dower interest in said real estate of said minors may be determined, and that the interest of the said wards in the said real estate may be sold, and that her dower interest therein may be deter- mined and paid to her in cash or that the said interest of said wards be sold subject to her said dower interest and for all other and proper relief. Answer should be verified in usual way. E. K., No. 198. Court's order substituting an appraiser. E. K., as guardian of H. K. and H. K. minors, Plaintiff, vs. No. . H. K., a minor, H. K., a minor, C. K. and E. K., widow of J. F. K., deceased, Defendants. It appearing to the court that E. B. K., one of the appraisers ap- pointed herein, is unable to discharge his duties as. such, C. A. M., a judicious, disinterested freeholder of the vicinity, is hereby appointed as appraiser in his stead under the former decree of the court herein. No. 199. Order of court setting aside an erroneous appraise- ment. Probate Court, County, Ohio. D. D. S., Guardian of the estates of C. M. D., et al, Plaintiff, vs. No. . J. R. D., et al, Defendants. Journal Entry. On motion of D. D. S., guardian, and it appearing to the court that the appraisement heretofore made herein under the former order of this court was erroneous and made by the appraisers heretofore ap- pointed under a mistake and misunderstanding of the order of appraise- ment, it is ordered that said appraisement be, and the same is hereby set aside and held for naught, and that the order of sale heretofore made by this court, based on said appraisement, be and the same is hereby vacated and set aside. It is further ordered that said appraisers proceed to value and appraise the premises described in plaintiff's petition herein at its true value in money, free from the dower estate herein of the defendant J. R. D. CHAPTER VII. SALE OF REAL ESTATE BY AN ASSIGNEE FOR THE BENEFIT OF CREDITORS. SECTION. 261. Preliminary statement. 262. 1 lie deed of assignment. 263. The nature of the title to the real estate conveyed to an assignee. 2H4. Who may make an assign- ment for the benefit of creditors — The bonds re- quired and their conditions. 265. The court must appoint an assignee in case of the fail- ure of an assignee to qual- ify- 266. In case of resignation the court to appoint assignee. 267. Under what circumstances creditors may select an as- signee or trustee. 268. The court may remove as- signee, when — Effect of new bond in such case. 269. The appointment of a trustee in place of an assignee or trustee — His powers and duties. 270. The appointment of a trustee to act in the place of an assignee. 271. Notice required in case a trus- tee is appointed to act for and in place of an assignee. 272. The inventory and appraise- ment of real estate as- signed — Duty of assignee where real estate is situ- ated in another county. 273. What property exempt from the assignment — The home- stead exemption. 311 SECTION. 274. The real estate must be con- verted into money. 275. In what case no petition need be filed for sale of real es- tate 276. In what court the action must be brought. 277. The procedure in sale of real estate by an assignee. 278. Notice of time and place of sale of real estate, and amount for which the same can be sold. 270. Manner in which real estate may be sold at public auc- tion — Enforcement of con- tracts. 280. Manner in which real est:ite may be sold at private sale. 281. When the court may fix the amount at which the real estate may he sold. 282. Procedure as to wife's dower. 283. Procedure when wife joins in mi rtgage, or mortgage is for purchase money. 284. Manner of payment of liens. Questions of dower, home- stead, completion of real contracts of assignor, ami application of proceeds of sale. 285. The order to release mort- gages or liens in recorder's office. 286. Procedure when town lots are to be laid out. 287. Confirmation of sale and or- der for deed. §§ 261-263 MERWINE ON REAL, ACTIONS. 312 Sec. 261. Preliminary statement. This action seldom appears in our courts. Our bankruptcy court now has almost exclusive charge of insolvency matters in this State. However, as every lawyer is occasionally re- quired to conduct, in our courts, a sale of real estate for an assign 3e for the benefit of creditors of an insolvent debtor, this chapter, in the following sections, will set forth the law on the subject. It must be kept in mind that on the filing of a petition in bankruptcy against an assignor in insolvency, all proceedings in the State courts are stayed. 24 Sec. 262. The deed of assignment. Before the action can be brought, a deed of assignment must have been executed, acknowledged, witnessed and delivered, and the deed filed with the probate court of the county in which the assignee is living at the time of the assignment. The deed of assignment must be executed and delivered in conformity with the deed statutes of the State. 25 The trust must be accepted by the assignee, and he must give bond in the county where the deed is filed. This being done, the probate court of that county has exclusive jurisdiction to appoint and qualify such assignee. 26 Sec. 263. The nature of the title to the real estate conveyed to an assignee. By a long line of decisions in this State, it is a well settled doctrine, that where a deed of assignment is made by an in- solvent debtor of all his real estate to an assignee, in trust for the payment of his debts, by a deed executed in conformity to the requirements of the statutes in this State, the assignee, or a substitute for him, appointed by the court, accepting the trust and filing and proving the execution of the assignment in the probate court, and taking upon himself the duties of the 24 Section 11, Bankruptcy Act. corded. Kl"j1i-I(iii v. Harrison. f wife consenting to sale §(i350f). and asking to be endowed of pro- oGen'l (ode §11124 (R. S. ceeds of sale. § 6350g ) . See No. 204 for form for 323 SALE OF REAL ESTATE FOR BENEFIT OF CREDITORS. § 285 interest, including the wife or widow of the assignor, parties to such proceeding; and upon hearing, the court must order a sale of the premises, or the completion of the contracts of sale so made by the assignor, the payment of incumbrances and the contingent dower interest of the wife or widow, subject to the proviso hereinafter contained, and determine the question in- volved in regard to th? title of the same ; and the proceeds of all the real estate so sold after payment of (liens) heirs and in- cumbrances and the contingent dower rights and interest of such wife or widow, as ordered by such court, must be reported to the court by the assignee, and disposed of as provided in this chapter, provided that the provisions of R. S. § 6350 in relation to the wife of the assignor, as a party to the proceedings thereunder and her rights by virtue thereof, and also the pro- visions of such section as to ordering property sold at private sale and upon terms of credit, must apply to proceedings under this section ; but nothing in this section nor R. S. § 6350 can be f-o construed as in any way to impair the right of homestead exemption or the right of an allowance in lieu of homestead exemption or the mode provided by law for enforcing such rights. And provided further, that nothing in this section or in this chapter can be so construed as in any way to take away or limit' the jurisdiction of any court of record in which any action to foreclose a mortgage, to quiet title, or in any way affecting the title or possession of all or any property of the real estate assigned is pending at the date of the assign- ment, but in said action the assignee may be made a party, with right to defend, and to have such decrees, orders or judg- ments made as may be necessary for the proper administration of his trust in any surplus remaining after payment of liens thereon which have been asserted in said pending action. 50 Sec. 285. The order to release mortgages or liens in recorder's office. When said action is determined by the probate court, the judge thereof is required to make the necessary orders for an entry of release and satisfaction of all mortgages and other liens upon said real estate, and is required to enter such release RoGen'l Code, §11120 (R. S. 1 C. C. 61; Blandy v. Benedict. 43 §6351). See also Clapp v. Banking 0. S. 295; Bell v.Dudoit. 40 < ). S. Co., 50 O. S. 528; Mannix v. Elder, 330; Scott v. Dunn, 2G O. S. 63. §§ 286, 287 MERWLNE ON REAL. ACTIONS. 324 in satisfaction, together with a memorandum of the title of the case, the character of the proceedings and the volume and page of record, where recorded ; upon the record of such mortgage, judgment or other lien in the office where the same appear as matter of record, and he is required to tax in his cost bill the fee provided by law for entering such release and satisfaction, and also a fee of twenty-five cents to himself for such entry. 51 Sec. 286. Procedure where town lots are to be laid out. When any assignee or trustee has commenced a civil action under the provisions of R. S. § 6351 in the common pleas court or probate court of the proper county, making all persons in interest parties to such proceedings; and at the time appointed for the hearing of the petition, and the court being satisfied that all the parties in interest have been duly notified of the pendency of said peti- tion, according to law, and that such real estate ought to be sold; and if such petition seeks to have the land or any part thereof laid out into town lots, and the court finds it will be to the advantage of all parties in interest to have the same done, the court is also required to authorize the survey and platting of the land described in the petition, and if the court approve the survey and plat made for that purpose the court is also required to authorize the assignee or trustee, on behalf of all the parties in interest, to sign, seal and acknowledge the plat in that behalf for record according to law. 52 Sec. 287. Confirmation of sale and order for deed — Manner in which deferred . payments are secured and notes and mortgage for deferred payments may be sold. A report of nil sales of real estate made as provided in this chapter must be returned to the court within the time pre- scribed, and the court, after having carefully examined such return, and being fully satisfied that the sale has in all respects been legally made, must confirm th.3 sale and order the as- signee or trustee to make a deed to the purchaser for the real estate sold; and may in the order requira that before the de- livery of such deed the deferred installments of the purchase money shall 1><' secured by mortgags. Provided, that if after si Con'l Code, § 10783 (II. S. m Gen'l Code, §11133 ( R. S. §6145). §«351a). 325 SALE OF REAL ESTATE FOR BENEFIT OF CREDITORS. § 287 such sale the purchaser offers to pay the full amount of the purchase money in cash, the court may order that the same be accepted if bast for the interests of the creditors of the assignor, and direct its distribution; and the court may order the sale by the assignee or trustee, without recourse, of all or any of the notes taken for defsrred payments, if best for the interests of the creditors of the assignor, at not les.-; than their face value with accrued interest, and direct the distribution of the procseds. 53 ssGen'l Code §11121 (R. S. sold at private sale. See No. 222 §(>350e). See No. 216 for form for for form of deed when real estate entry in such case. See No. 217 sold at public sale, for form for deed when real estate FORMS. FORMS FOR SALE OF REAL ESTATE AT PRIVATE AND PUBLIC SALE BY AN ASSIGNEE FOR BENEFIT OF CREDITORS. FORMS 200. 201. 202. 203. 204. 205. 206. 207. 208. 209. 210. 211. The deed of assignment. Form for acceptance of trust. The petition for sale of real estate of an assignee for the benefit of creditors. Precipe for summons. Answer of wife of assignor. Answer of an assignor. The summons for defendant in sale of real estate by an assignee for the benefit of creditors. The sheriff's return of his pro- ceedings under said writ. Answer and cross-petition of a defendant setting up notes secured by mortgage. Cross-petition of a trustee setting up mortgage lien. Decree and order of sale. Affidavit for authority to sell real estate at private sale. FORMS 212. 213. 214. 215. 216. 217. 218. 219. 220. 221. 222. Order for sale of real estate at private sale. Order of sale from the pro- bate court to the assignee. The assignee's return of his proceedings under the or- der of sale. Assignee's report of sa^e. Confirmation of private sale of assignee. Form for deed of assignee in sale of real estate at pri- vate sale. Order of assignee to sell at public auction. Assignee's report of his pro- ceedings under the writ. Legal notice of sale. Decree and order of court con- firming sale. Form of assignee's deed at public auction. No. 200. The deed of assignment. Kxow aix Men ry These Presents. That whereas I, G. B., of the City of , County of and State of Ohio, am indebted to divers persons in various sums of money which I am now unable to pay in full; and Whebeas I, the said G. B., am desirous of conveying all my property for the benefit of my creditors, without any preference or priority. Now therefore I, the said G. B., in consideration of the premises and of one dollar to me paid by C. B., the receipt of which 1 hereby acknowledge, have granted, bargained, sold, assigned, transferred and set over, and by these presents do grant, bargain, sell, assign, transfer and set over unto the said C. B., all and singular the lands, tenements, hereditaments and appurtenances, goods, chattels, stocks, promissory 326 327 FOKMS. notes, debts, choses in action belonging to me, wherever the same may be situated, except such property as is by law exempt from execution. To Have and to Hold the same unto the said C. B. in trust, to sell and dispose of said real estate and personal property, and to collect, sue for, and demand, receive and recover, all such sums of money as may be, or become due, owing and payable on sard promissory notes, debts, choses in action, evidences of debt, claims and demands and their interest, to apply the proceeds arising from the same as follows: First. To pay the lawful costs and expenses of executing the trust hereby created, including reasonable attorney fees for legal advice in regard to the said trust, and for drawing this deed of trust. Second. To pay to each and all my creditors the full sums that may be due and owing to them by me; provided, however, that if there shall not be sufficient funds with which to pay all my said debts, then the said debts are to be paid ratably and in proportion. Third. If the proceeds aforesaid shall be more than sufficient to pay and satisfy every one of my creditors, then to pay and return to me the balance that may be left, if any, after paying all my creditors as aforesaid. Fourth. And I do hereby nominate, constitute and appoint the said C. B. my true and lawful attorney irrevocably in my name, or other- wise, for the purposes aforesaid, to execute the trust hereby created, giving and granting unto my said attorney full power and authority to do and perform every act, deed and requisite necessary in the prem- ises as fully to all intents and purposes as I might or could do if this assignment had not been made; with full power of substitution and revocation, hereby ratifying and confirming all that my said attorney, or his substitute may lawfully do, or cause to be done in the premises by virtue thereof. In Witness Whereof, I have hereunto set my hand and seal this day of , 19 . Signed, sealed and acknowledged in presence of State of Ohio, County, ss.: Be it Remembered that on this day of , 19 , before me, the subscriber, a Notary Public within and for said county, personally came G. B., the grantor in the foregoing deed, and acknowl- edged the signing and sealing thereof to be his voluntary act and deed for the uses and purposes therein mentioned. In Testimony Whereof, I have hereunto subscribed my name and affixed my notarial seal on the day and year last aforesaid. Notary Public, County, Ohio. MERWINE ON REAL ACTIONS. 328 No. 201. Form for acceptance of trust. I hereby accept the trust created by the above instrument, and agree faithfully to perform the same. C. B. Dated at , , Ohio, this day of , 19 . No. 202. The petition for sale of real estate by an assignee for the benefit of creditors. Probate Court, County, Ohio. C. B., assignee in trust for the benefit of the creditors of G. B., Plaintiff, vs. No. . G. B., J. B., his wife, L. W. S., and C. M. T., as executors of the estate of S. M., deceased, J. N. C. and F. J., Defendants. Petition to Sell Real Estate. The plaintiff, C. B., assignee in trust for the benefit of the creditors of G. B., one of the defendants, says that on the day of . t 19 , said G. B. made an assignment in trust for the benefit of all his creditors, of all his property not exempt by law from execu- tion, to the said C. B., which assignment, with plaintiff's bond as said assignee, was filed and approved according to law, with the Probate Court Clerk, County, Ohio, on the day of , 19 . And that since that time plaintiff has continued in the dis- charge of his duty as such assignee. Plaintiff alleges that among the assets of said assignment is certain real estate, to-wit: (Here describe it.) The defendants L. W. S. and C. M. T., as executors of the estate of S. M., deceased, J. N. C. and F. J., claim some liens or interest upon said premises, and plaintiff asks that they may be made parties defendant herein, and required to set forth the nature and amounts thereof, or be forever barred from asserting the same. Plaintiff therefore prays that he be ordered to sell said real estate herein described; that said liens be considered by the court, and if found to be valid and subsisting, their respective priority be deter- mined, and their payment ordered out of the proceeds of said sale, and also that the rights of said wife in said real estate be considered and determined, and that the court issue its orders to the plaintiff accordingly. • Attorneys for Plaintiff. The petition should be verified as in other cases. 329 KOKMS. No. 203. Precipe for summons and waiver of summons and entry of appearance. To the Prtbate Court of said County: Issue summons for the defendants, L. W. S. and C. M. T., as execu- tors of S. M., deceased, and F. J., directed to the sheriff of County, Ohio returnable according to law. Indorse thereon, "sale of real estate by C. B., as assignee in trust for the benefit of the creditors of G. B." Waiver of Summons and Entry of Appearance. We hereby waive the issuing and service of summons upon us, and enter our appearance to the within action. J. N. C, G. B., J. B. No. 204. Answer of J. B., wife of assignor. Probate Court. County, Ohio. (Same caption as in petition.) The said J. B., wife of said G. B., hereby consents to the sale of said real estate prayed for in plaintiff's petition in this case, and asks the court to have said real estate sold free of her contingent right of dower therein, and to allow her in lieu thereof, such sum of money out of the proceeds of such sale as the court may deem to be the reasonable value of her contingent dower interest in said real estate. This answer verified as in other cases. No. 205. Answer of an assignor. Probate Court, County, Ohio. (Same caption as in petition.) And now comes G. B., one of the defendants, and says that he is the assignor mentioned in this action, and consents to the sale of said real estate as prayed for by his assignee in his petition in the above entitled cause. This answer should be verified as in other actions. No. 206. The summons for defendants in sale of real estate by an assignee for the benefit of creditors. State of Ohio, County, ss.: To the Sheriff of the County of : You are commanded to notify L. W. S. and C. M. T., as executors of S. M., deceased, and F. J., defendants, that they have been sued by C. B., as assignee in trust for the benefit of the creditors of G. B., MERWINE ON REAL ACTIONS. ^30 plaintiff in the Probate Court of County, and that unless they answer by the day of , A. D. 19 , the petition of the said C. B., as such assignee aforesaid, against them filed* in said court, such petition will be taken as true and judgment rendered ac- cordingly. You will make due return of this summons on the day of , A. D. 19 . In Testimony Whereof. I have hereunto set my hand and affixed the seal of the court at , this day of , 19 . Probate Judge. 207. The sheriff's return of his proceedings under said writ. The State of Ohio, County, ss.: Received this writ on the day of , 19 , at o'clock m., and on the day of , 19 , I served the same by leaving a true copy thereof, with all the indorsements thereon, at the usual place of residence of each of the within named, L. W. S., C. M. T. and F. J. , Sheriff of County, Ohio. No. 208. Answer and cross-petition of L. W. S. and C. M. T., as executors of the estate of S. M., deceased. Probate Court, County, Ohio. ( Same caption as in petition. ) For a cross-petition herein said executors say: 1. That on the day of , A. D. 19 , G. B. had delivered to one J. N. C. his certain promissory note for the sum of $ , a copy of which, with all the indorsements thereon, is as follows: " , Ohio, , 19 . " years after date, for value received, 1 promise to pay J. N. C, or order, $ with interest thereon from date until paid at the rate of per cent, per annum, payable semi-annually. "G. B." Said note is credited and indorsed as follows: "Interest paid on the within note to the day of . 19 . ■'Pay estate of S. M. without recourse on me." 2. The said executors say that to secure the payment of the note above set forth herein, the defendant, G. B., and his wife, C. B., on the day of , 19 , made their mortgage deed to said J. N. C, and thereby conveyed to said J. N. C, his heirs and assigns, the following described real estate, and being the same real estate described in the petition, to-wit: (Here describe it), which said mort- gage deed was in substance that if the said G. B. would well and truly pay said sum of money according to the tenor and effect of said note, then said mortgage deed was to be in no force and effect. 331 FOKMS. Said mortgage deed was, on the -day of -, 19- , at o'clock m., delivered to the recorder of County, Ohio, for record^ and was, on the day of — 19 -, duly recorded in County Record of Mortgages, ii> Vol. , pages and . Said executors further say that said mortgage deed has become absolute; that there is due thereon and unpaid the sum of $ and interest thereon from the day of , 19 , at the rate of per cent, per annum, payable semi-annually. Said executors say that said note is wholly unpaid; that there is due and owing thereon the sum of $ , with interest at per cent, from the day of , 19 , and that said note and said mortgage were duly transferred and assigned by said J. N. C. to said executors, and that said executors are the owners and holders of said note and said mortgage. Said executors therefore pray that in case said property is sold, the said sum of money due and payable to them on said note and said mortgage be paid to them out of the proceeds of such sale accord- ing to the priority of lien thereof. L. W. S. and C. M. T., As Executors of the estate of 8. M., deceased. This cross-petition verified as in other cases. No. 209. Cross-petition of W. H. A., trustee, Probate Court, County, Ohio. (Same caption as in petition.) Now comes W. H. A., trustee, and upon his own motion is made a party defendant in this suit, and by leave of the court, files herein his cross-petition and says that on the day of , 19 , said defendant G. B., made, executed and delivered to the defendant J! N. C. his promissory note, and thereby promised to pay to the said J. N. C. in years from said date the sum of % , with interest at the rate of per cent, per annum, payable semi-annually; that afterwards, to-wit: on or about the clay of , 19 , before said note became due, the said J. N. C, by a written indorse- ment on the back of said note, transferred and assigned to this de- fendant as trustee, the said promissory note, and ever since the said date defendant has been the legal owner and holder of said note. The interest on said note has been paid in full to the day of , 19 , and there is due to this defendant from the said G. B. upon said note the sum of % , with interest thereon at per cent, per annum, payable semi-annually from the day of , 19 . On the day of , 19 1 to secure the payment of the above described note, the said defendants G. B. and J. B., his wife, made, executed and delivered to the said J. N. C. their mortgage deed, thereby conveying to him, his heirs and assigns, the real estate described in said petition. (Here describe it.) MERWINE ON REAL ACTIONS. 332 The condition contained in said mortgage was in substance that if the said G. B. should pay to the said J. C, when the same became due, the above described note and the interest thereon when and as the same became due and payable, then said mortgage should be void, otherwise to be and remain in full force and virtue in law. The said mortgage was filed with the recorder of County, Ohio, for record, on the day of , 19 , at o'clock m.. and was afterwards by him recorded in Vol. , pages and , County, Ohio, records. Since the date of the said filing of said mortgage, it has constituted a valid and subsisting lien upon the real estate described in plaintiff's petition. On or about the day of , 19 , before said note became due, the said J. N. C. for a valuable consideration, transferred and assigned the said mortgage to this defendant as trustee, and this defendant is now the legal owner and holder of the same, and entitled to receive payment of the same out of the proceeds of any sale made of the real estate. Wherefore this defendant prays that in the event of the sale of said real estate by order of the court herein, thai; his rights will be protected, and that out of the proceeds of any sale that may be made, he shall receive payment of the above described: note and mortgage, and for all other and proper relief to which he may be entitled. Attorney for W. H. A., trustee. This cross-petition verified as in other cases. No. 210. Decree and order of sale. Probate Court, County, Ohio. (Same caption as in petition.) This cause came on for hearing upon plaintiff's petition, the answers and cross-petitions of the defendants, G. B., J. B., L. W. S., C. M. T. as executors of S. M., deceased, W. H. A., trustee, being the owner of the note and mortgage made by said G. B. and wife to the defendant J. N. C, F. J. and the evidence, and was argued by counsel and sub- mitted to the court, and on due consideration whereof the court finds that all proper and necessary parties are now in court; that said G. B. made an assignment for the benefit of his creditors, and that said C. B. filed a deed of assignment in the Probate Court herein, gave bond, and has been discharging his duties as such assignee as set forth in said petition. The court further finds that the averments of the plaintiff are true as set forth in his petition. It is therefore ordered by the court that said plaintiff sell, as upon execution, the real estate described in his petition, (Here describe it); and that said lands are to he sold free from the contingent right of dower of the said J. B. And it appearing to the court that the said plaintiff as such assignee, nas heretofore caused said real estate to he appraised by the oaths 333 FORMS. of three judicious, disinterested freeholders of the vicinity of said premises, it is ordered by the court that no further appraisement of the same be made by the plaintiff herein. No. 211. Affidavit for authority to sell real estate at private sale. Probate Court, County, Ohio. (Same caption as in petition.) The undersigned, assignee in trust for the benefit of the creditors of G. B., respectively, asks for an order authorizing him to sell at private sale and for cash, at not less than the appraised value thereof, the real estate hereinbefore ordered to be sold by the court in this proceeding. Said authority is asked for the following reasons: 1. It would be to the advantage of the creditors of said assignor. 2. It will, if sold at private sale, enable affiant to pay the debts of said assignor without further delay. 3. The appraised value is all that said premises could be sold for if sold at public sale. State of Ohio, County, ss.: C. B., assignee, being duly sworn, says that the various matters set forth in the foregoing application and affidavit are true as he verily believes. Sworn to before me and subscribed in my presence this day of , 19 . , Notary Public, County, Ohio. No. 212. Order for sale of real estate at private sale. Probate Court, County, Ohio. (Same caption as in petition.) On motion of C. B., assignee, and it appearing to the court that it would be for the best interests of the creditors of said assignor to sell the real estate hereinbefore ordered by the court to be sold in this action, at private sale, jt is ordered by ths court that said assignee proceed to sell the real estate hereinbefore ordered to be sold by the court in this action, at private sale and for cash in hand, and that he report his proceedings herein to the court without delay. No. 213. Order of sale from the probate court to the assignee. State of Ohio, County, ss. : To C. B., as Assignee of the estate of G. B., Greeting: In obedience to an order and decree of the Probate Court within and for said county, made this day in a certain cause wherein you, as assignee of the estate of G. B., are plaintiff anil G. B., et al are defendants, you are commanded to proceed according to law to sell at private sale, for no less than two-thirds the appraised value thereof, MEI.'WINE ON REAL ACTIONS. d34 the following real estate described as follows: (Here insert descrip- tion.) Said lands are to be sold free from the contingent right of dower of the defendant J. B. Said sale to be upon the following terms, cash in hand on day of sale, and you will make return of your proceedings to this court forthwith upon the execution of this order. Witness my signature and the seal of said Proba f e Court at , Ohio, this day of , 19 . No. 214. The assignee's return of his proceedings under said order of sale. To the Probate Court of County, Ohio: In obedience to the foregoing order, I have caused the same to be duly executed as will fully appear by the proceedings herein attached. Dated the day of , 19 . C. B., As Assignee for the benefit of the creditors of G. B. No. 215. Assignee's report of sale In obedience to the within order I sold said premises on the day of , 19 , to W. D. B. for the sum of $ , said sum being more than two-thirds of the appraised value of the same. C. B., As Assignee of G. B. Dated day of , 19 . State of Ohio, County, ss. : The above named C. B.. as assignee for the benefit of the creditors of G. B., being duly sworn, says that the sale above reported has been made after diligent endeavor to obtain the best price for said property; that said sale is for the highest and best price he could get for .said property. C. B. Sworn to before me and signed in my presence this day of , 19 -. Probate Judge. No. 216. Confirmation of private sale of assignee. Probate Court, County, Ohio. (Same caption as in petition.) This day came C. B., as assignee in trust for the benefit of the creditors of G. B., and produced to the court a report of a sale made by him of the following described real estate: (Here insert descrip- tion. ) In pursuance of an order hereinbefore made, and it appearing on examination that said sale has, in all respects been legally made, the same is approved and confirmed, and the said C. B. is ordered to 335 FORMS. execute and deliver to the purchaser at said sale the proper deed in fee simple to the real estate so by him sold as aforesaid. It is further ordered by the court that said assignee, out of the proceeds of said sale, pay First, the costs of this proceeding, including the attorney's fees t0 of $ , and to the assignee herein the sum of $ . Second, the taxes and special assessments due on the day of , 19 , in the sum of $ . Third, to the defendants L. W. S. and C. M. T., executors of S. M., deceased, the sum of $ . Fourth, that said assignee pay to W. H. A., trustee the sum of $ . Fifth, that said assignee pay to the defendant F. J the sum of $ . Sixth, that said assignee pay to the defendant J. B., wife of G. B., the sum of $ , being the full amount of her contingent right of dower in said real estate. Seventh, that said assignee, out of the funds arising from said sale, pay to the general creditors of said G. B. their claims so presented to him for allowance and allowed by him. Eight, that said assignee after the payment of all claims, costs and expenses, pay any balance of said proceeds of said sale remaining in his hands to the assignor G. B. And it is further ordered by the court that this court cause to be entered satisfaction of the mortgages herein paid, on the mortgage records of this county. No. 217. Form for deed of assignee in sale of real estate at private sale. Know all Men by These Presents, that whereas, on the day of , 19 , G. B. made an assignment of all his property, including the real estate described below, in trust for the benefit of his creditors to G. B., which assignment was filed in the office of the Probate Court of the County of , State of Ohio, on the day of , 19 ; and Whereas, said assignee was ordered by said Probate Court to sell said real estate described below at private sale; and Whereas, said assignee did on the day of 19 sell the same at private sale to W. D. B. for $ , cash in hand, and the said W. D. B. having complied with all the terms of said sale, the same was confirmed by said court on the day of , 19 1 and the said assignee was ordered to execute and deliver to the said purchaser a proper deed for said real estate, all of which will more fully appear by reference to the records of said court in said matter of assignment, in case No. . Now Therefore I, the said C. B., as assignee a?, aforesaid, in consideration of the premises and by virtue of the powers in me vested by law and the order of said court, do hereby grant, bargain, MEUWINE ON REAL ACTIONS. 336 sell and convey unto the said W. D. B., his heirs and assigns forever, the following described real estate: (Here describe it.) To Have and to Hold the same with all and singular the ap- purtenances thereunto belonging unto the only proper use of the said W. D. B., his heirs and assigns forever, the title hereby conveyed being free from all liens on the same and of all debts due by the said assignor, and also free and clear of the contingent right of dower in said premises of J. B., wife of the said assignor, G. B. In Witness Whereof, I, as said assignee as aforesaid, have here- unto set my hand and seal this day of , A. D. 19 . C. B. As Assignee for the benefit of the creditors of G. B. Signed and sealed in presence of us State of Ohio, County, ss.: Be it remembered that on the day of , year of our Lord, 19 , before me the subscriber, a Notary Public in and for said county, personally came C. B., assignee in trust for the benefit of the creditors of G. B., the grantor in the foregoing deed, and as such assignee acknowledged the signing and sealing thereof to be his voluntary act and deed for the uses and purposes therein mentioned. In Testimony Whereof, I have hereunto subscribed my name and affixed my notarial seal on the day and year last aforesaid. Notary Public, County, 0. No. 218. Order to assignee to sell at public auction. Probate Court. The State of Ohio, County, ss.: To , Assignee of , Greeting: In obedience to an order and decree of the Probate Court within and for said county, made this day in a certain cause wherein you, as the assignee for the benefit of the creditors of , are com- plainant, and ■ et al. are defendants, a true copy of which order and decree is hereto attached, you are commanded to proceed according to law to sell the following real estate, free of the dower of , wife of , after giving weeks' notice by publication in some newspaper printed and of general circulation in said county, to-wit: (Here insert description of real estate.) Said sale is to be by public auction at the door of the court house in said county at not less than two-thirds of the appraised value and for cash. You will make return of your proceedings immediately after execut- ing this order. Witness my hand and the seal of this court at , Ohio, . 19 . Probate Judge. 337 FORMS. No. 219. Assignee 's report of his proceedings under said writ In obedience to the within order, I duly advertised the real estate therein described for sale for consecutive weeks before the day of sale in the , a newspaper of general circulation in said county, stating in said notice the time, place and terms of said sale, and on the day of , 19 , I attended the said sale and at the hour of , m. I offered said real estate for sale, and then and there publicly struck off and sold the same to for the sum of $ , they being the highest and best bidders and that being more than two-thirds of the appraised value thereof. Assignee for the benefit of the creditors of No. 220. Notice of sale, and proof of publication. In pursuance of an order of the Probate Court of County, Ohio, I will offer for sale at the door of the court house in County, Ohio, on the day of , at o'clock, m., the following described real estate: (Here describe the real estate.) Said premises are to be sold free from the dower and all other liens thereon, appraised at $ . Terms of sale, cash. Assignee for the benefit of the creditors of . State of Ohio, County, ss.: , being duly sworn, deposes and says the notice, of which a true copy is hereto attached, was published in , a daily newspaper printed in and of general circulation in said Coun- ty, Ohio, once a week for consecutive weeks, commencing on the day of , 19 , to-wit: on , , , , and . Sworn to before me and subscribed in my presence on this day of , 19 . , Notary Public. No. 221. Decree and order of court confirming sale. This cause coming on for hearing upon the return of , as assignee for the benefit of the creditors of , of his pro- ceedings and sale of real estate, the court, after careful examination and being satisfied that the sale has in all respects been legally made, does hereby approve and confirm the same and orders that said , as such assignee make to the purchasers, and , a good and sufficient deed of the premises so sold, free from all liens and all debts due by the assignor and from the contingent dower interest of , the wife of said assignor. It is therefore ordered, adjudged and decreed by the court, that , assignee for the creditors of — , make to the purchasers of said real estate a good and sufficient deed for same, free from all liens and all debts due MERWINE ON REAL ACTIONS. 338 by the assignor, and from the contingent dower interest of said . , wife of said , assignor. This cause coming on for an order to distribute the proceeds of the sale of said real estate amounting to the sum of $ , it is ordered by the court that said assignee, out of the moneys in his hands, pay 1. To the treasurer of county, the taxes, penalty and interest on said real estate in the sum of $ . 2. The costs of this proceeding, including the sum of $ to plaintiff's attorney as his attorney fee for conducting this suit, to-wit: the sum of $ . 3. To on his mortgage herein the sum of $ . 4. The remainder of said sum, said assignee is ordered to distribute among the general creditors of said , assignor. No. 222. Form of assignee's deed at public sale. Know all Men by These Presents: That whereas as of on the Attorney for Plaintiff. No. 225. The summons in this action. The State of Ohio, County, ss.: To the Sheriff of said County, Greeting: You are hereby commanded to notify the Company that it has been sued by in the Court of Common Pleas of — County, and that unless it answer before the day of , in the year or our Lord one thousand nine hundred and , the petition of the said plaintiff against it filed in the clerk's office of County, such petition will be taken as true and judgment rendered accordingly. You will make due return of this summons on the day of , in the year of our Lord one thousand nine hundred and . '» Clerk, of said Court. No. 226. The sheriff's return of his proceedings under s&iC writ. The State of Ohio, County, ss.: Received this writ on the day of in the year of our Lord one thousand nine hundred and , at o'clock, m., and pursuant to its command, on the day of in the year of ourXord one thousand nine hundred and , I served the within named defendant The Company by personally handing a true and duly certified copy of this writ with all the 347 FORMS indorsements thereon to C. F. J., president of the said The Company. Sheriff of County. No. 227. Motion asking for the appointment of a receiver. Court of Common Pleas, County, Ohio. C. F. J., Plaintiff, vs. No. -. The Company, Defendant. Now comes the plaintiff herein, and moves the court for tha ap- pointment of a receiver as prayed for in his petition herein. No. 228. Notice to the defendant of the time and place of asking for the appointment of a receiver. To The Company, , Ohio. Gentlemen: You are hereby notified that in the suit of vs. The Company, an application for the appointment of a receiver of said The Company will be made by the plaintiff above mentioned before his Honor at the court house in , Ohio, at o'clock, on the morning of the day of , 19 , or as soon thereafter as counsel may be heard. Very respectfully yours, Service of copy of the above is acknowledged this day of , 19 . , The Company. No. 229. The order of the court appointing a receiver. Court of Common Pleas, County, Ohio. C. F. J., Plaintiff, vs. No. . The Company, Defendant. This day this cause came on to be heard upon the motion of the plaintiff for the appointment of a receiver for the defendant herein, and the court upon consideration of said motion, and being fully advised in the premises, does find that a receiver for the defendant company, as prayed for in the petition herein, should be appointed, and the motion of the plaintiff for said appointment is accordingly sustained. It is therefore ordered, adjudged and decreed that be he hereby is appointed receiver of all of the debts, property, r ; MERWINE ON REAL ACTIONS. 348 interest and things in action of every kind whatsoever due said The Company, and all persons having any property of the said The Company in their possession or under their control are hereby ordered to deliver the same to said receiver, and all persons owing any notes to the said The Company are hereby directed to pay over the same to said , as said receiver on his demand therefor. And the said receiver is accordingly ordered to proceed with the discharge of his trust as herein created, subject to this order of his appointment, and the further orders and directions of the court herein, and he is further ordered to continue the business of the defendant company until the further order of this court; and it is further ordered that before entering upon his duties as such receiver he execute a bond for the faithful performance of his duties herein, an undertaking conditioned according to law, in the sum of $ . No. 230. The order of the court appointing counsel to advise receiver. Court of Common Pleas, County, Ohio. C. F. J., Plaintiff, vs. No. The Company, Defendant. This cause coming on to be heard upon the application of , receiver herein, asking the court to appoint an attorney to render and give to him as receiver such legal services and advice as he may require in the administration of said receivership, and upon due consideration of said application the court finds that it is necessary for said receiver to have legal service and advice of an attorney in carrying out his duties as receiver herein, and, therefore, upon the application of said receiver the court appoints J. W. M. as such attorney, and authorizes and directs said receiver to consult and employ said J. W. M. at such times and in such manner as he may require legal advice, or the services of an attorney in carrying out his duties as receiver herein. No. 231. Motion asking the court's instruction as to publica- tion of notice to creditors. Court of Common Pleas, County, Ohio. C. F. J., Plaintiff, vs. No. . The Company, Defendant. Now comes , receiver herein, and asks the court for an order directing him to publish notice requiring creditors to present 349 FORMS. their claims to him and to fix the time to be stated in said notice and within which creditors of The Company shall present their claims to him as such receiver. No. 232. The order of the court directing the manner and kind of notice to be published to creditors. Court of Common Pleas, County, Ohio. C. F. J., Plaintiff, vs. Nq. -. The Company, Defendant. This day this cause came on to be heard upon the application of , receiver herein, asking the court for an order directing him to publish notice to the creditors of The Company to present their claims for allowance and to fix the time within which such claims shall be presented, and on consideration whereof, it is ordered by the court that said , receiver herein, or The Company, give notice in a newspaper of general circulation in County, for consecutive weeks, to the creditors and all persons interested in The Company, that all such persons having claims of any kind against said company are required to present the same, duly verified, to the said receiver for allowance within days from the date of the first publication of said notice. No. 233. The notice published, c. f. j., Plaintiff, vs. No. . The Company, Defendant. Notice is hereby given of the appointment of as receiver of The Company, and all persons indebted to said company are required to make payment direct to him at , or deliver him any property in their possession belonging to said company; that all persons holding claims against said company are required to present them to said receiver, duly authenticated, for allowance, before the day of , 19 , and that any persons holding an open or subsisting contract with said company are required to present the same to said receiver. Dated this day of , 19 . Attorney for said Receiver. MERWINE ON REAL ACTIONS. 350 No. 234. The proof of publication. State of Ohio, County, ss.: , foreman of , a newspaper published and printed in County, Ohio, personally appeared and made oath that the attached printed legal notice was published consecutive weeks in said newspaper from the day of , 19 . Further affiant sayeth not. . Subscribed to and sworn to this day of , 19 . Notary Public, County, Ohio No. 235. The inventory filed in the action by the receiver. c. F. J., Plaintiff, vs. No. . The Company, Defendant. Now comes , appointed receiver herein on the day of , 19 , and represents to the court that the defendant was on said date the owner of the following real and personal property situated in County, Ohio; of which he, as such receiver, is now in possession, to-wit: (Here describe it). Receiver. No. 236. The application for the appointment of appraisers and order to sell real estate. C. F. J., Plaintiff, vs. No. . The — Company, Defendant. Now comes — ; , heretofore appointed receiver herein, and rep- resents to the court that the defendant, The Company, was on the date of his appointment as said receiver, the owner of the real and personal property situated within County, Ohio, described and mentioned in his inventory heretofore filed herein. Said receiver further represents that to procure funds with which to pay the debts due and owing by the defendant it will be neces- sary to sell said real estate and all of the property described and enumerated in his inventory filed herewith. Therefore said receiver asks the court for an order appointing appraisers to separately appraise said real estate and said personal property, in order that the same may be sold, and that after said appraisement is returned, the court order him, as such receiver, to sell in such manner as the court may direct said appraised real estate 351 POEMS. and personal property at public sale, and convey all the right, title and interest of the said The Company in and to said property to the purchaser, and for such other orders as the court may deem proper. , Attorney for Receiver. No. 237. The receiver's report of appraisement. Court of Common Pleas, County, Ohio. C. F. J., Plaintiff, vs. No. . The Company, Defendant. Now comes , receiver herein, and respectfully represents that pursuant to an order heretofore made by this court herein, ordering and directing him to cause an appraisement to be made of the real estate and certain personal property belonging to The ■ Company located in County, Ohio, and as described and enumerated in his inventory filed herein, and mentioned in said order appointing appraisers, he has caused the same to be made, and herewith submits his report of said appraisement. No. 238. Oath of appraisers, and their report. State of Ohio, County, ss.: We, the undersigned, do make solemn oath that we will truly, honestly and impartially appraise all the real and personal pioperty of the said The Company located in County, and perform all the other duties required by law of us in the premises as appraisers to the best of our knowledge and ability. Appraisers. Sworn to before me and subscribed in my presence on th:s — day of . 19 . . Notary Public. Court of Common Pleas, County, Ohio. C. F. J., Plaintiff, vs. No. . The Company, Defendant. Now c-cmes , and . and respectfully repre- sent that they have appraised all of the real estate of The Company and personal property of said company as ordered and men- MERWINE ON REAL ACTIONS. 352 tioned in the order of the court appointing them as appraisers, ail of said property being located in County, Ohio, and submit herewith their report of said appraisement. Appraisers. The following described real estate in the County of , State of Ohio, in the city of to-wit: (Here describe it), we do appraise at $ . Given under our hands this day of , 19 . Appraisers. No. 239. The application for confirmation of appraisemen* Now comes , receiver herein, and respectfully represents to this court that he has returned and filed with this court an appraise- ment made by the appraisers heretofore appointed by this court and asks the court for further instructions and orders upon bis application filed herewith, asking for an order to sell the real estate and other property of the defendant company described and enumerated in his inventory filed herein. , Attorney for Receiver. No. 240. The confirmation of appraisement and order of sale. Court of Common Pleas, County, Ohio. C. F. J., Plaintiff, vs. No. . The Company, Defendant. This day this cause came on to be heard on the application of the receiver herein for an order of the court approving and confirming the report of the appraisers heretofore appointed by this court to appraise the real estate and other property of The Company described and enumerated in said order, and on consideration thereof the court finds that said appraisement has been made and returned in conformity to law and the former orders of this court, and it is further ordered that the said appraisement be, and the same is hereby approved and confirmed. And this cause coming on further to be heard upon the application of said receiver for instructions as to the sale of said real estate and other property of the said defendant company described and enumerated in said appraisement, and on consideration whereof, the court having found that it will be necessary to sell all of said real 353 FORMS. estate and other property of said defendant in order to procure funds with which to pay the claims due and owing by said defendant, the court further finds that it will be for the best interest of all the parties hereto that said property be offered at public sale. It is therefore ordered by the court that said receiver proceed to advertise said real estate and said personal property described and enumerated in said appraisement for sale, by publication in newspapers of general circulation in — County, Ohio, on and of each week, until the day of , 19 , and that he then proceed to sell the same as hereinafter directed, at public auction at the court house of said county on the day of 19 , a t o'clock — m., at not less than two-thirds of the appraised value thereof, and for cash, to-wit: (Here describe real estate and other property to be sold). Said receiver is further directed to report his proceedings in the premises to this court for confirmation and for further orders. No. 241. The receiver's report of sale of real estate. Coubt of Common Pleas, County Ohio C. F. J., Plaintiff, vs - No. . The Company, Defendant. In obedience to the orders of this court made and entered on the day of , 19 , ordering and directing me as receiver of The Company to proceed to advertise the said real estate and other property of The Company, described and enumerated in said order of sale, by publication in newspapers of general circulation in County, Ohio, on the day of of each week until the day of , 19 , and to then proceed to sell the same at public auction at the court house of County, Ohio, on the day of , 19 , at o'clock — m., at not less than two-thirds of the appraised value thereof, and for cash, and in the manner in said order directed, I caused to be advertised for sale in and , newspapers in general circulation in County, Ohio, on the dates in said order directed, said real estate and other property in said order described and enumerated, to be by me, as said receiver, sold at public auction at the court house of said County, Ohio, on the day of , 19 , at o'clock m., of said day, and did on said day of , 19 ~ • at o'clock — m.. at the court house of County, Ohio, proceed to offer at public sale said real estate and other property as ordered and directed by said court, the following described real estate and other property: (Here describe it). And then and there came C. F. J., who bid for the same the sum of $- t and said sum bejng two-thirds of the appraised value thereof, and the highest bid made therefor, no further MERWINE ON REAL ACTIONS. 354 bid being made, I declared said bid accepted, and then and there publicly sold and struck off said real estate and other property specifi- cally described and enumerated above to the said C. F. J. at his said bid therefor, and declared the same sold to him, subject to be confirmed by this court, and I now make return of my said proceedings under said order and sale made by me thereunder, to this court for con- firmation. As Receiver of The Company. No. 242. The legal notice of receiver's sale. In the Court of Common Pleas, County, Ohio. C. F. J., Plaintiff, vs. No. . The — Company, Defendant. Notice is hereby given that by virtue of an order by the Court of Common Pleas made on the day of , 19 , I will offer for sale at public auction on the day of , 19 , at o'clock — m., at the court house of County, Ohio, the following described real estate and other property of The Company: (Here insert description of real estate and other property). Total appraisement of said real estate $ . Terms of sale, cash. No bid of less than two-thirds of the appraised value will be accepted. Sale to be subject to confirmation by the Common Pleas Court. Receiver. No. 243. The proof of publication. State of Ohio, County, ss.: foreman of , a newspaper published and printed in County, Ohio, personally appeared and made oath that the attached printed advertisement was published times in said newspaper; that is, on , 19 , and that said newspaper is of general circulation in said county. Subscribed and sworn to this day of . 19- Notary Public. 355 FORMS. No. 244. The entry confirming the sale of real estate. Court of Common Pleas, County, Ohio. C. F. J., Plaintiff, vs. No. . The Company, Defendant. This day this cause came on to be heard on the report of , receiver of The Company herein, of the sale made by him on the day of , 19 , at o'clock — m., at the court house of ■ County, Ohio, at which he, as said receiver, publicly sold in pursuance of an order of this court made and entered on the day of , 19 , that part of said real estate and other property of said The Company, ordered by this court in said order to be offered for sale, to C. F. J. who bid for the same the sum of $ , which was two-thirds of the appraised value of said real estate and other property; and on motion of said receiver to confirm the same and the court having carefully examined said report and being satisfied that said sale has in all respects been made in conformity to law and the said orders of this court, it is ordered by the court that the same be and it is hereby approved and confirmed, and said receiver is hereby ordered upon receipt by him of the purchase money for said real estate and other property, to convey said real estate to said purchaser, C. F. J., and also to deliver to him said other property, said real estate so sold and to be so conveyed to said purchaser, C. F. J., being bounded and describ " as follows: (Here describe it). It is further ordered by the court that said receiver hold said funds arising from the sale of said real estate and other property subject to the further order of this court. No. 245. Receiver's deed for real estate. Know all Men By These Presents, That whereas, on the day of , A. D. 19 , C. F. J., as plaintiff, filed his certain petition, and then and thereby commenced a civil action in the Court of Common Pleas of County, Ohio, against The Company, defendant, and numbered on the docket of said court as cause No. , praying, among other things, for the appointment of a receiver to take charge and control of the real estate and all other property and assets of said company, and that said real estate and other property of said company be sold, and the proceeds thereof be paid to its creditors; and Whereas, Such proceedings were had in said action that by tne consideration and judgment of said court, , on the , day of . 19 , was appointed receiver of all the debts, property equitable interests, and things in action belonging to I'.ie said The Company, and ordered to proceed with the discharge of said trust, subject to said order of appointment and the further MERWTNE ON REAL ACTIONS. 356 orders and directions of said court, and that before entering upon my duties as such receiver, I gave bond as in said order provided; and Whereas I, as receiver, on said day of , 19 , gave said bond and duly qualified as said receiver and took possession of all of the real and personal property of said company; and Whereas, On the day of , 19 , I, as said receiver, filed in said cause an application, petitioning and asking said court for an order to sell the real and personal property of said company and for the appointment of appraisers to appraise the same, and the court on consideration of said application, found that it would be necessary to sell the real estate and personal property of said com- pany to pay its debts and appointed appraisers to appraise the same, and ordered me, as said receiver, to cause said appraisement to be made; and Whereas I, as said receiver, in pursuance of said orders, caused said real and personal property of said company then in my possession to be appraised by said appraisers and filed my report thereof in said court on the day of , 19 ; and Whereas, On the day of , 19 , said court approved and confirmed said appraisement, and such further proceedings were had on the day of , 19 , in said cause that it was, among other things, ordered, adjudged and decreed by said court that I, as said receiver, proceed to advertise said premises and personal property described and enumerated in said appraisement for sale, by publication in newspapers of general circulation in County, Ohio, on and days of each week until the day of , 19 , and that I then proceed to sell the same at public auction at the court house of said county, on the day f 1 at o'clock — m., at not less than two-thirds of the appraised value thereof, and for cash, and in parcels and manner as in said order directed; and Whereas I, as receiver, having advertised the time and place and manner and terms of said sale in the and , newspapers of general circulation of said County, Ohio, on the dates and in the manner as directed in said order for sale, and having otherwise in all respects complied with said order for sale, I did on said day f ( 19 ., offer for sale, and sold at public auction at the court house of County, Ohio, certain property of said company in said order of sale described, and at which sale the premises hereinafter described were by me, as said receiver, struck off and sold to C. F. J. for the sum of $ , said sum being two-thirds of the appraised value thereof, and the only offer made therefor; and filed my report of said sale in said court on the day of , 19 ; and Whereas, Said court, on the day of , 19 , having examined my said report of said sale and proceedings as receiver and having found that said sale had been made by me in all respects accord- ing to law, and the orders of said court, the same was by said court approved and confirmed, and I, as said receiver, as aforesaid, was by 357 FORMS. said court ordered upon receipt by me of the purchase money of said real estate by me sold to said C. F. J. to convey said real estate to said purchaser, C. F. J., and to deliver to him possession of said property; all of which will more fully appear by the records of said court, to which reference is hereby made. Now Therefore I, , as receiver of the said Company, by virtue of the powers in me vested by law and of the statutes in such case made and provided, and in consideration of the premises, and in consideration of the sum of $ , the receipt whereof is hereby acknowledged, and under and by virtue of the orders of said court, do hereby give, grant, bargain and sell and convey unto the said C. F. J., his heirs and assigns forever, all of the estate, title and interest of the said The Company in and to the following described real estate, situated in the County of and State of Ohio, and in the City of , and bounded and described as fol- lows: (Here describe real estate). To Have and to Hold the same, with all the privileges and appur- tenances thereunto belonging, to said C. F. J., his heirs and assigns forever as fully and completely as I, the said receiver, as aforesaid, by virtue of said judgments, orders, rights, order of sale, confirmation thereof and recorded herein and of the statutes made and provided for such cases, might or should bell or convey the same. In Witness Whereof, I, as receiver of The Company, as aforesaid, have hereunto set my hand this day of , 19 . As Receiver of Company. Signed and acknowledged in the presence of State of Ohio, County, ss.: Before me, a Notary Public in and for said county, personally appeared on this day of , 19 , the above named , who acknowledged that he had signed the foregoing deed as receiver of Company aforesaid, and that the signing of the same is his free act and deed, as such receiver, for the uses and purposes therein mentioned. In Testimony Whereof, I have hereunto set my hand and official seal on this day of , 19 . Notary Public. County, Ohio. CHAPTER IX. PROCEDURE BY WHICH TRUSTEE IN BANKRUPTCY SELLS REAL ESTATE AT PRIVATE SALE. SECTION. SECTION. 292. The source of the trustee's au- 294. The manner in which the sale thority to sell. is conducted. 293. The appraisal of the real es- tate. Sec. 292. The source of the trustee's authority to sell. In every case where real estate of a bankrupt is to be sold under the national bankruptcy act, the petition and schedules must have been filed and all of the procedure of the act com- plied with up to and including the appointment of a trustee. Under the present bankruptcy law, the power of the trustee is derived from the authority given the trustee to collect and reduce to money the property of the estate. 1 Sec. 293. The appraisal of the real estate. The real estate of the bankrupt must be appraised. The number of appraisers must be three, and they must be dis- interested. The appraisers must be sworn, as in other cases, and they must return their appraisement to the court. 2 Sec. 294. The manner in which the sale is conducted. The sale can be had at either public or private sale. Such sale is entirely under the direction of the court. The trustee, i Sec 47 of the bankruptcy act of direction of the court, and proscribe 1898. It is said by Black on Bank- the manner and effect of such sales." ruptcy, that '-The bankrupt law of Black on Bankruptcy, 150. 1867 conferred express authority 2 Sec. 70B of the Bankruptcy upon assignees in bankruptcy to Act. Sec No. 246 for form for or- make sales of real and personal ea- dor of court appointing appraisers, fcates, either on their own motion. See No. 247 for form of the oath in certain cases, or by order and and return of the appraisement. 358 359 REM. ESTATE AT I'KIVATE SALE. &294 when a sale is desired, files his petition in the ease, asking Cor authority to sell. The sale can not be for less than three- fourths of the appraisement. 3 The sale can be made subject to the wife's dower and to liens and incumbrances. This sale subject to incumbrances is usually asked when the liens and incumbrances amount almost to the value of the real estate, and there is not much to be gained by the sale for the creditors. However, the power to sell real estate is discretionary, and it may or may not be exercised, as the court may deem proper. It sometimes happens that the real estate is not sold and the lienholders are left to work out their rights in the State courts. 4 But the usual and better way is for the court or the referee to sell the real estate free of dower and of every lien and in- cumbrance, as is done in the State courts. In such instances. as is the case in the State courts, the liens and various claims will attach to the fund for distribution. The sale can not he made even in this manner if such sale will result in injury to the general creditors or to the injury of a lienholder. 8 3 Sec. 700. Bankruptcy Act. See No. 248 for form of petition to sell real estate at private sale subject to liens and incumbrances. See No. 24!) for form for order for sale of real estate at private sale. See Xo. 250 for cider confirming .sale of real estate at private sale. See Xo. 251 for form of petition for sale of real estate at public auction. Sih> No. 252 for order of court authorizing sale at public auction, sn'vject to liens. See No. 255 for deed by trus- tee to purchaser of real estate * See 5 Cyc. .'5S."{, citing Sessions v. Rsmodka, 1 15 I . S. 2!); Spar- hawk v. Ycrkcs, 1 12 IT. S. 1 : < Manny v. Langdon, 98 I . S. 20; In re Cogly, 107 Fed. 73; 5 Am. Hank. Rep. 731. b in re Styer, 98 Fed. Rep. — ; 3 Am. Bankruptcy Rep. 424. FORMS. PROCEDURE BY WHICH A TRUSTEE IN BANKRUPTCY SELLS REAL ESTATE AT PRIVATE SALE. FORMS. rOBMS. 240. The order of the court ap- 252. The order of the court au- pointing appraisers. thorizing sale at public 247. The oath of appraisers, the auction. appraisement and return of 253. The petition for sale of real the appraisers. estate at public auction 248. The petition to sell real es- subject to liens. tate at private sale, sub- 254. The order and decree of tie ject to incumbrances court authorizing sucu 249. The order to sell real estate sale. at private sale subject to 255. The deed from the trustee to incumbrances. the purchaser at trustee's 250. The entry confirming such sale of real estate in bank- sale, ruptcy. 251. The petition for sale of real estate by public auction. No. 246. The order of the court appointing appraisers. In the Distbict Court of the United States for the District of Ohio Division. In the matter of Bankrupt. No - In Bankruptcy. This day came the trustee in bankruptcy and represents to the court that it is necessary to a complete settlement of the estate that the interest of the bankrupt in the real estate set forth in the schedule filed herein should be appraised, and asked that the court appoint three appraisers. Upon consideration whereof the court hereby appoints , ■ and to act as such appraisers. Referee in Bankruptcy. 360 361 FORMS. No. 247. The oath, the appraisement and return of the ap- praisers. In the District Court of the United States for the District of Ohio Division. In the matter of Bankrupt. No. In Bankruptcy. , and being first duly sworn, say that they will honestly and truly appraise the real estate belonging to the within bankrupt to the best of their ability and make due return thereof to the court. , Sworn to by the said , and and by them subscribed in my presence this day of , 19 . Notary Public, County, Ohio. We, the undersigned appraisers in the above entitled cause, hereby represent to the court that we personally inspected and viewed the premises belonging to the bankrupt, to-wit: (Here describe said real estate) and we do hereby fix the value of the same at $ . No. 248. The petition to sell real estate at private sale. In the District Court of the United States for the — District of Ohio Division. In the matter of Bankrupt. No. In Bankruptcy. Respectfully represents , the duly appointed trustee of the estate of the aforesaid bankrupt, that the following described real estate mentioned and set forth in the schedule of said bankrupt (Here describe it) be sold. Said trustee asks that the same be sold at private sale for the following reasons, to-wit: said real estate has been appraised at % and there is a mortgage of % against said real estate, together with interest thereon from the day of , 19 ; that there is also a lien for taxes on said real estate in amount more than the sum of $ ; that one has offered to pay to the said trustee the sum of % for said real estate, and agrees ' to assume and pay said mortgage, taxes, assessment and MEUWTNE ON REAL ACTIONS. 362 penalties charged as a lien thereon, and that it would be impossible, in the opinion of your trustee, to sell said real estate in the open market for more than sufficient to pay the liens against the same, and respectfully represents that it is desirable and for the best in- terests of the estate to sell at private sale said real estate as aforesaid. Wherefore he prays that he may be authorized to sell said real estate at private sale to said for the sum of $ on the assumption by said purchaser of said mortgage, taxes, assess- ment and penalties. Dated this day of , 19 . Trustee. State of Ohio, County, ss.: , being duly sworn, says that he is the trustee aforesaid and that the allegations contained in the foregoing petition are true as he verily believes. Sworn to before me and subscribed in my presence this day of , A. D. 19 . Notary Public. No. 249. The order to sell real estate at private sale. This day this cause came on to be heard upon the application of the trustee herein for permission to sell the real estate hereinafter described at private sale to at terms hereinafter S9t out, and the same was submitted to the court upon said application and the evidence, and the court finds that said real estate was appraised at $ ; that the same is mortgaged to the sum of $ , to- gether with interest on said sum from the day of . 19 ; that it will be difficult, if not impossible, to find a purchaser for such an interest so incumbered, that the same cannot be sold at public sale, and that it is to the interest of said estate to accept the offer of said , to-wit: to take said interest of said and to pay the said , trustee therefor, the sum of $ in the manner following, to-wit: for cash; also said is also to pay any penalties that may be added to said taxes. The application of said trustee is therefore granted and said trustee is hereby ordered to convey to the said at private sale, on the terms hereinabove set out, all the right, title and interest of the said , trustee in bankruptcy of the said bankrupt, and all the right, title and interest of the said , bankrupt, of, in and to the following described real estate situated in the County of in the State of Ohio, and in the City of and bounded and described as follows: (Here describe it). And said trustee is ordered to report his proceedings thereunder to this court. 363 FORMS. No. 250. The entry confirming said sale. Ii; the District Court of the United States for the District of Ohio Division. In the matter of Bankrupt. No. In Bankruptcy. Now comes , trustee in bankruptcy of the estate of , bankrupt, and respectfully represents to the court that in pursuance to an order of court hereinbefore made, he has sold to at private sale, said real estate described in the petition herein, and it appearing to the court upon the examination of the proceedings of said trustee in connection with said sale of said real estate that said sale has been made in strict accordance with the law and the orders of this court, the said sale is therefore approved and confirmed, and the said trustee, is ordered to execute and deliver to the purchaser, , upon his compliance with the terms of sale, a proper deed of the real estate so by him sold as aforesaid. No. 251. Petition for sale of real estate at public sale. In the District Court of the United States for the District of Ohio Division. In the matter of Bankrupt. No. ■ In Bankruptcy. Respectfully represents , trustee of the estate of said bankrupt, that it would be for the benefit of said estate that a certain portion of the real estate of said bankrupt, to-wit: (Here describe it and its estimated value) should be sold <~t auction, in lots or parcels, and upon terms and conditions as follows: — . Wherefore he prays that he may be authorized to make sale by auction of said real estate as aforesaid. Dated this day of , A. D. 19 . Trustee. No. 252. The order of the court authorizing sale at public auction. The foregoing petition having been duly filed, and having come on for a hearing before me, of which hearing ten days* notice was given by mail to creditors of said bankrupt, now, after due hearing, no adverse interest being represented thereat (or after hearing in favor of said petition and in opposition thereto), it is ordered that the said trustee be authorized to sell the portion, by MERWINE ON REAL ACTIONS. 364 auction, keeping an accurate account of each lot or parcel sold and the price received therefor and to whom sold; which said account he shall file at once with the referee. Witness my hand this day of , A. D. 19 . Referee in Bankruptcy. No. 253. Petition and order for sale subject to lien. In the District Court of the United States for the District of Ohio Division.- In the matter of Bankrupt. No. In Bankruptcy. Respectfully represents , trustee of the estate of said bankrupt, that a certain portion of said bankrupt's estate, to-wit: (Here describe the estate or property and its estimated value) is subject to a mortgage (describe mortgage), or to a conditional contract (describe it), or a lien (describe the origin and nature of the lien), or (if the property be personal property) has been pledged or deposited and is subject to a lien for (describe the nature of the lien), and that it would be for the benefit of the said estate that said property should be sold, subject -to said mortgage, lien, or other incumbrance. Wherefore he prays that he may be authorized to make sale of said property, subject to the incumbrance thereon. Dated this day of , A. D. 19 . Trustee. No. 254. The order and decree of the court authorizing such sale. The foregoing petition having been duly filed and having como on for a hearing before me, of which hearing ten days' notice was given by mail to creditors of said bankrupt, now, after due hearing, no adverse interest being represented thereat (or after hearing in favor of said petition and in opposition thereto), it is ordered that the said trustee he authorized to sell the portion of the bankrupt's estate specified in the foregoing petition, by auction (or, at private sale), keeping an accurate account of the property sold and the price received therefor and to whom sold; which said account he shall file at once with the referee. Witness my hand this day of , A. D. 19 . Referee in Bankruptcy. 365 FORMS. No. 255. Deed by trustee to purchaser. Know all Men by These Presents, That whereas, on the day of , 19 , was duly adjudged bankrupt by the District Court of the United States for the District of Ohio, Division, and the said was duly appointed and qualified as trustee of the estate of the said in bankruptcy, and is now acting as said trustee, and on the day of , 19 , said trustee filed a certain petition in said District Court of the United States for the District of Ohio, Division, praying, among other things, for an order of sale for said real estate therein mentioned and hereinafter described; and Whereas, proceedings were had on said petition in accordance with the bankruptcy laws of the United States in such case made and provided, and the petition coming on for hearing on the day of — , 19 , of which hearing ten days' notice had been given by mail to said creditors of said bankrupt, it was ordered that said trustee be authorized to sell the portion of the bankrupt's estate specified in his petition and hereinafter described, at private sale, keeping an accurate account of the property sold, and the price received therefor, and to whom sold, and on the same day in pursuance of said order and judgment, an order of sale of said real estate therein described was issued out of said court under the seal thereof to said trustee of the estate of in bankruptcy, as aforesaid directed, commanding him to execute the said order, and of the same, together with his proceedings thereon, to make due return to said court: and Whereas, said , trustee of the estate of in bankruptcy, having caused said premises to be appraised and the report of said appraisement to be filed with , the referee, and having on the day of , 19 , returned said order of sale to said court, as commanded, with the proceedings thereon, stating in substance that in obedience to said order he sold the same to which was the best price he could get for same, and being more than seventy-five per cent, of the appraised value of said premises, he then and there sold the same to said for said sum; and Whereas, on the day of , 19 , the said court having examined the proceedings of the said sale aforesaid, under said order of sale, and it appearing to the court that said sale was in all respects legally made, ordered that the same be approved and confirmed, and that said , trustee, as aforesaid, should execute and deliver a proper deed to the purchaser of the real estate so sold, all of which will more fully appear by the record of said court, to which reference is here made; Now Therefore I, the said trustee of the estate of in bankruptcy aforesaid, by virtue of said order of sale, sale and confirmation, and of the statute in such case made and provided, and of the powers vested in me and for and in consideration MERWINE ON HEAL, ACTIONS. 366 of the premises, and the sum of $ paid to me by the said , the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell and convey to the said his heirs and assigns forever the following real estate situated in the County of ■ in the State of Ohio and in the City of : (Here describe real estate in question ) . To Have and to Hold said premises with all the privileges and appurtenances thereunto belonging to said , his heirs and assigns forever, as fully and completely as he, the said ■ , as such trustee in bankruptcy, by virtue of said order of sale, sale and confirmation, and of the statute made and provided in such cases, might and should sell and convey the same. In Witness Whereof, the said as such trustee, has here- unto set his hand this day of , A. D. 19 . Trustee of the estate of , Bankrupt. Signed and acknowledged in the presence of The State of Ohio, County, ss.: Be it Remembered, That on this day of , 19 , before me the subscriber, a notary public in and for said county, personally came the above named , as trustee of the estate of in bankruptcy, the grantor in the foregoing deed and acknowledged the signing of the same to be his voluntary act and deed as such trustee for the uses and purposes therein mentioned. In Witness Whereof, I have hereunto subscribed my name and affixed my official seal on the day and year last aforesaid. Notary Public, County, Ohio. CHAPTER X. SALE OF REAL ESTATE IN PARTITION. SECTION. 295. Nature of the proceedings — Equitable and statutory. 296. Amicable partition. 297. Partition may be made by pa- rol. 298. Written agreement for parti- tion. 299. One tenant can not effect par- tition by deed conveying his interest by metes and bounds. 300. Joint tenancy does not obtain in Obio. 301. Disputed title can be deter- mined by partition. 302. Will may be "construed. course of descent and le- gality of bequest deter- mined in partition. 303. Partition creates no new title. 304. Construction of partition by mutual releases. 305. Applicant for partition must be in actual or construct- ive possession. 306. Several estates, part of which under life leases, part of which not — Part can be partitioned and part not. 307. Remaindermen or reversion- ers can not have partition, life estate outstanding, when. 308. Title of demandant must l>e alleged and proved. 309. Who may have partition. 310. When partition can not be had — Where the action must be brought. 311. Who may file petition for par tition. 312. The order of partition. 313. The writ of partition. 367 make 315. 316. 317. SECTION. 314. Commissioners shall partition, how. How partition made when more than one tract .to be partitioned. Commissioners to appraise land when they can not di- vide it — Election of par- ties to take at appraise- ment. Terms of payment when es- tate Laken by party — Exe- cution of conveyances. 318. Sale of the estate when par- ties do not elect to take the same. How such sale conducted and the terms thereof. Confirmation of sale and exe- cution of conveyances. Distribution of proceeds — Sheriff's liability. Proceedings when the estate has been once offered and not sold. When successor of sheriff who made sale to execute con- veyances. When widow is entitled to dower, or an interest is subject to a life estate. Commissioners appointed to partition the estate to as- sign dower. Partition — Power of guardian to act for ward. Powers of foreign guardian. Action by one parcener against another for rents and profits. 329. Rents and crops — Apportion- ment in case of sale. 319. 320. 321. 322. 323. 324. 325. 326. 327. 328. §295 MERWINE ON REAL ACTIONS. 368 SECTION. 330. Absence of seven years, pre- sumption as to — Purchaser entitled to improvements, when. 331. Partition of property belong- ing to religious corpora- tions. 332. When such partition can be made and effect thereof. 333. Costs and expenses to be equitably taxed in parti- tion proceedings. 334. Certificate from court — Par- tition and deficiency of as- sets. 335. Court shall order proceeds of partition proceedings to be paid over to executor or ad- ministrator, when. 336. Partition can not be had with- in a year from death of decedent, when. 337. Advancement — Hotchpot in Partition. 338. Advancement by an intestate to be considered a part of the estate. SECTION. 339. When the advancement is greater or less than the heir's share. 340. When the advancement is wholly real or personal es- tate. 341. When value of advancement expressed in deed. 342. Judgments in partition can not be collaterally assailed. 343. Lien against co-tenant attach- es to share set off to him in severalty by partition. 344. Rights of a joint owner who pays his portion of a tax — Those not paying held lia- ble as if partition had not been made — A tax on lands sold at judicial sale to be paid out of proceeds of sale — Part owner paying . tax on whole tract shall have lien. 345. Purchasers may have parti- tion as in other cases. 346. Appeal and error in parti- tion. Sec. 295. Nature of the proceeding — Equitable and statutory. The procedure whereby the share of one of the several owners of real estate in common is set off to him in severally by the courts, may be either a proceeding in chancery, or it may be a statutory proceeding. While the distinction between the proceeding in chancery and the proceeding under the statute is well defined, yet the distinction is not a mat- ter of much importance to the practitioner. Especially is this so since both are worked out by the same court. But cases have arisen in the practice in partition proceedings where it was necessary for the courts and those conducting the cases to know the distinction. In cases where the title is in question and equitable rights are involved, it is the chancery side of the court that is appealed to for the partition. The partition statutes have in nowise abridged the equitable powers of the chancellor in partition proceedings. At law, in partition, the sheriff could only award an actual division of the land. Inequality in the ownership of the 369 SALE OF REAL ESTATE IN* PARTITION. §295 lands could not be adjusted, especially in cases where com- pensation was necessary to do exact justice to the co-owners. Later, when a parent had given lands or money to a child as a portion of his estate, equitable interference became neces- sary to do exact justice to all of his children in the final distribution of his real estate. In such cases courts of equity awarded owelty of partition. As in almost every case of the origin of an equitable remedy, equitable partition grew out of the demands of justice. 1 The power of the chancellor is far-reaching in equitable partition. It has been well said by an eminent jurist in this State that equity courts have long exercised the power to decide finally upon the rights of adverse claimants to real estate where the nature of the controversy properly called for the interference of a chancellor. A bill to establish and enforce a trust gave him jurisdiction to hear and determine its existence and extent, and to enforce it, in a proper case, by compelling a conveyance by the de- fendant as trustee, notwithstanding his answer denied the entire title of the plaintiff. In this class of cases, as well as in a number of others, the fact that a decision of a judge, without a jury, might divest one in possession of the whole i Linton v. Laycock, 33 0. S. 128. "If this were a chancery parti- tion, the rights of all the partus could be determined. But as the proceeding is purely statutory, the powers of the court are limited by the partition statute. Under this the court can order partition, and where this is impractical, and so appears from the report of the sheriff and commissioners ap- pointed to make partition, the court may order a sale. * * * "In a mere statutory partition pro- ceeding, no question can arise under the homestead act. Xo money can be appropriated to creditors in such case: and hence, the lanoruase. evident purpose, and scope of the homestead act has no reference to such a case as this. "The homestead act beina bene- ficial, is to be liberally construed, and hence a court of law would extend its protection to all cases of judgments, and in chancery cases the court acting by way of analogy to the statute would, by decree or otherwise, secure its exemptions to debtors coming within its letter or spirit in all cases Avhere a home- stead, by any chancery proceeding, might be sought to be applied t<> satisfy the claims of the creditors." AtcMasters v. Smith, 5 W. L. M. 28. "The special statutory mode of obtaining partition never was ex- clusive of that in equity, by civil action under the code. Partition was always a subject of equity ju- risdiction, especially where the case involved the settlement of questions peculiarly cognizable in courts of equity." Linton v. Laycock, 33 0. S. 129. Under the old procedure there were two kinds of partition : statu- tory and equity. Perry v. Richard- son, 27 0. S. 110. §295 MERWINE ON REAL ACTIONS. 370 estate, does not affect the jurisdiction. The principle con- trolling is well known. Where a party can not have ade- quate and complete relief at law, he may apply in equity; and the chancellor in such case taking jurisdiction, retains it so far as may be necessary to furnish relief adequate and complete. A careful consideration of the position and rela- tions of tenants in common of realty will satisfy the mind that when a co-tenant has gone into possession and refuses to recognize the title of the owners of the other undivided shares^ an ordinary suit at law will not furnish to them adequate and complete relief. In the Ohio statutory proceeding for partition the court could not exercise chancery or equity powers, and was limited to the mode and extent provided by statute. There would seem to be good reason for holding that those statutory powers could only be exercised on behalf of parties whose title at law was disputed. But a civil action seeking equitable partition together with an account of rents and profits, properly invokes the chancery powers of the court. 2 In all the statutory proceedings in partition a legal title in the demandant is necessary ; for if his title is equitable merely, the proceeding should be under the code for an 3quita- ble partition. 3 In a very carefully prepared opinion a nisi prius court points out what may be done in a statutory partition and what may be done in a chancery proceeding in partition. In the former it is declared that the court can make only such orders, judgments and decrees as are authorized by the -Hogg v. Bievman. 41 O. S. 81; Perry v. Richardson. 27 0. S. 110. 3 Byers v. Wackman. 16 0. S. 440. And for a case where de- mandant did not show legal or equitable title, see Ciasely v. Sepa- ratis, etc., 13 O. S. 144. It has been held that "in a par- tition in chancery, if the title in dispute he an equitable one, the court will settle it. If legal or in- volved in doubt, and there are not . 110, reasoning on which it was sus- wherein it was said: "Deed by ten- tained is subtle and too much re- ant in common, or co-parcenary, fined: for. while it is admitted that purporting to convey in severalty. estates in joint tenancy are pro- :onveyance for the grant- hibited by statute, and that hus- par 1 •■ See also Les- band and wife, by reason of their v. Emerich. 6 O. 391. unity, can not hold in that char- Sergeant v. Steinberger, 2 O. acter, they are treated as 71/a.s! ilson v. Fleming, 13 O. joint tenant- and the doctrine of' 73. In this 1. ■ — it was said survivor-hip applies," Fanners v. ;,, s aa ; prevails Wallis, 4~> O. S. 165, in which we among joint tenants only, and, when find the court saying: -Under the there is no s here \< no laws of Ohio, estates in joint ten- ship; that is, survi- ancy do not exist, and the decis- lu-ive benefit of ions have always been averse to rvivor; for, though partners estate- by entireties. When the may bold by survivorship, they hold hind, therefore, is granted to hua- ■■ others - fell as band and wife, they take by moi- nd not as joint eties as tenants in common." See ■:mon law. Are hus- also Tabler v. Wiseman, 2 O. S. 208. : .n to the 1* Tabler v. Wiseman. 2 O. S. 208. general rule? It has been so de- 375 SALE OP REAL ESTATE IX PARTITION'. !01,302 Sec. 301. Disputed title can be determined in partition. under the old system of procedure in use before the adop- tion of the present - si m of the code, if an action in partition were sought in equity, and quesl - title came up triable in a court of law. an issue out <>f chancery was necessary be- fore the can- .Id proceed. A suit in partition could not foe substituted for the old action of ejectment. And when in a partition action title was denied, the court in the partition suit could not try th- j question of title. But as there is but under the code, and as the same court now hears and det mines all civil as well as chancery cases, the courts now, in partition cases, are not embarrased when the issues in such p ease raise the question of title: and hence, now. in an action under the code seeking equitable partition, together with an account for rents and profits, an answer denying that the petitioners have any title to, or interest in, the premises. d< - not oust the court of jurisdiction."'' Sec. 302. Will may be construed — Course of descent and legality of bequest determined in partition. It sometimes happens that by the terms of a will, an estate in real estate is devised in such manner that only a constr tion of the terms of the will can enable a division to be ma of it. or the course of descent under the terms of the will, can decide how partition can be made; and even in some cas - the validity of a provision of the will can be determined in a partition ease. 16 In such suit the rule that the intention of the testator must govern applies to all partition proceedings in which the construction of a will is involved, but, where the intention remains in doubt, resort must be had to settled rule> construction for aid in the solution of the difficulty. is Perry v. Richardson. 27 0. S. 110. And in Penn v. Cox, lti O. -V2. it i> held that the court in such an action had power to hear and de- termine questions of title. In Hol:u' \. Bierman, 41 O. S. 81. it was cid ; ." that "where a ] 'i'ion in a civil action prays I uitable par- tition ■ >; real estate an! an account of rents and profits, an answer denying plaintitT's entire title not oust the court of jurisdicti in." !••• Patton v. Patton, .59 O. S. 5 Curren v. Taylor. 19 0. " tlmig v. Meyer. 8 N. P. 31; Staple! on v. Ellison, 21 0. S. 527, in will was c tnstrued and an advance 1 nient adjust) i" Linton v. Layeock. 33 O. S. 128. § 302 MERWINE ON REAL ACTIONS. 376 The terms of the following will gave rise to a very interest- ing partition proceeding: "I do make and order this my last will and testament respecting the disposition of my worldly substance. In the first place I give and bequeath to my beloved wife, Mary, one-half of all my real estate, and also one-half of all my personal property. "In the second place it is my wish and desire that my mother should have a comfortable support during her natural life out of the remaining half of my personal property. "In the third place it is my wish and desire that my prop- erty should I>e kept together until my youngest child should become of age and make use of it to the best advantage for the support and educating my children, and at the time the youngest shall become of age, the property shall then be disposed of and then divided equally amongst my children." The mother died many years before the action was begun to partition the lands, and when the action was brought the youngest child had been of age inany years. There were several children, one of them being the complainant, who had purchased the interest of the widow and had received a proper deed for her interest. Following the rule that the intention of the testator must control in the construction of a will, the widow had no interest in the real estate disposed of by will after the youngest child became of age, and com- plainant had no interest that could be partitioned. 18 A devise to one when he arrives at a given age — the inter- mediate estate being devised to another — vests on the death of the testator and is not defeated by the death of the devisee before the specified age. The words of futurity importing contingency are not necessary with the immediate vesting of the estate, but may be regarded as merely postponing the possession. A devise, though not otherwise expressed, is im- plied in a direction in the will to divide an estate among specific devisees, and the rule vesting legacies — bequeathed only by ;i direct ion to pay or divide — at the time fixed for the paymenl or division, does not apply to devises of real estate. 19 - Bowe \. Fuller, 1!» 0. 51; see Day, J., that it lias long been set- also Linton v. Laycock, 33 0. S. tied that a devise to one when he 129. shall arrive at a given age, with the Linton v. Laycock, 33 O. S. 129. intermediate estate devised to an- In tlii- last case it was said by other, vests immediately on the 377 SALE OF REAL ESTATE IN PARTITION. §303 Sec. 303. Partition creates no new titles. Where tenants in common partition ancestral property by leeds, reciting as a consideration for the same the full value of the land, such consideration may be shown by parol to be the actual amicable partition ; and the property in an amicable partition of this kind, so coming- to one of the heirs as a tenant in common of ancestral lands, will still be regarded an ancestral property and will pass as such under the statute of descent and distribution. 20 But where the partition is made by the court, and the real estate is sold by the sheriff, the ancestral quality of the estate is broken. A party electing- to take the property at its ap- praisement, takes his own share as ancestral property and the shares of the others by purchase. 21 Should any of the heirs who has received his share of ancestral property by partition, exchange his portion to an- other heir, receiving in the exchange the share of another heir in the partition, the ancestral quality of the estate is lost and the taker of such portion holds by purchase. 22 In every instance in determining the rights of the parties who have been allotted real estate in partition by mutual re- death of the testator, and is not de- feated by the death of the devisee before the specified age. It is a vested remainder. The words of futurity, importing contingency, are not regarded as a condition prece- dent or as postponing the period of vesting, but as specifying the time when the remainderman is to take possession, citing Boraston's Case, 3 0. 18; Taylor v. Mosher, 29 Md. 443; Minning v. Ratdorff, 5 Pa. St. 503; Collier's Will, 40 Mo. 287; Roome v. Phillips. 24 X. Y. 4(53: Dayforth v. Talbot. 7 B. Monroe, €23; Rivers v. Fiipp. 4 Rich Eq. 276; YVatkins v. Qarrels, 23 Ark. 179; Harris v. Alderson, 4 Sneed, 250 ; Hancock v. Titus, 39 Miss. 224. "A provision of a will that there would be no partition of the estate until ten years after testator's death, is a valid provision which courts will enforce by refusing par- tition." In re Reynolds' Estate, 7 X. P. 626. Under the following will: "I be- queath to my wife my real o-taf ■■. in order to raise my younger chil- dren, to have it as long as she continues my widow, but if she ceases be to my widow, I wish it not to be disposal of until the youngest child becomes of age. Xo partition can be mads among the residuary devisees until the ma- jority of the youngest child, al- though the widow's estate may have become extinct." Davidson v. Wolf, 9 O. 74. 20 Carter v. Day. 59 O. S. 96. In this case it was further held that '•where the estate in common came, by descent, devise or deed of gift, the parcel allotted to the parcener who died seized of the same, de- scends according to the provisions of § 4158 of the Revised Statutes." (Gen'l Code. § S593). Smith v. Car- ver. 36 W. L. B. 189. 2i Freeman v. Allen. 17 0. S. 527. 22Brower v. Hunt, 18 0. S. 311. §304 MERWINE ON REAL ACTIONS. 378 leases in severalty, the deeds of release should be construed together in the light of all the circumstances attending their execution; and it is competent to show, in an action to deter- mine the rights of the parties to such a partition, that their only purpose was to accomplish the partition. In either case, the title of each parcener in the share set off to him, in severalty, remains the same as that by which his undivided interest in the land was held. This is upon the theory that in every partition of land among tenants in common, no new titles are created in the new shares in severalty. This effect of the partition is to locate the share of each in his allotted parcel of the land, and extinguish all his interest in all the others. The title by which he holds his divided share is the same as that by which his undivided interest in the estate in common was held. 23 A partition proceeding operates upon the possession — dis- solves the unity before existing, and enables each of the owners to know, possess, and enjoy his own share of the common estate in severalty. This construction preserves all the analogies of the law, and is fully sustained by the ad- judged eases. It is well settled that such a proceeding does not decide title, or create any new title. It merely dissolves the tenancy in common, and leaves the title as it was, except to locate such rights as the parties may have, respectively, in distinct parts of the premises, and to extinguish it in all others. 24 Sec. 304. Construction of partition by mutual releases. When partition is made by mutual releases, they should be read and construed together in the light of the circumstances 28Carter v. Day, 59 0. S. 96; Tabler v. Wiseman, > 0. S. 208; McBain v. McBain, 15 0. S. 337; Freeman v. Allen, 17 0. S. 527; Cresthwail v. Dixon. 5 Adol & Sele'a 834; Bank v. Wallace, !.'» 0. S. L52. -' Tabler v. Wiseman. 2 0. S. 210; see also Goundie v. Northampton Water Co., 7 Barr, -27S-. McClure v. McClure, 2 Harris, 137; Bonner v Proprietors, etc., 7 Mass. 47-V. Wills v. Price, f) Mass. 508; Brown- ell v. Brownell, 19 Wend. 367; Claprj v. Bromagham, '.) Cow. 561; Culver v. Culver, 2 Hoot, 278; 6 Dane's Ab. 480; 5 Denio, 388; Youngs v. Heffner, 36 0. S. 237. ••'1 lie rule asserted in Tabler v. Wisemen, 2 0. S. 207, and McB on v. McBain, 15 0. S. 337, applicable to partition proceedings under t!r.- statute, that no new title is cre- ated thereby, does not apply to ">!<• deliberate conveyances of the par- ties especially where there is an in- dependent consideration for s-icli conveyances." Hershizer v. Flor- ence, 3!) O. S. 516. 379 SALE OP REAL ESTATE IN PARTITION. §305 attending their execution, .and it is competent to show their only purpose was to accomplish the partition, and no other consideration passed between the parties though a pecuniary consideration be expressed in the deed. 25 Where land is purchased with an undivided fund, in which the parent has a life estate and the children a remainder, and a conveyance is made to the former, the title will be held in trust for the latter subject to the life estate; and upon termination of the life estate they will hold the equitable. title as tenants in common in the proportion of their respec- tive shares in the fund, and such tenants in common are enti- tled to partition.- Sec. 305. Applicant for partition must be in actual or con- structive possession. The proceeding in partition can not be made to take the place of the action in ejectment. The applicant must be in actual or constructive possession of the real estate sought to be aparted. It has been so held in many of the States. 27 In this State the right of entry on the part of the applicant is sufficient. 28 A prominent text writer has said, on this subject, that proceedings for partition were not designed as an alternative remedy with the action of ejectment. It was always neces- sary at the common law, and is still essential under most of the American Statutes, that the applicant for partition be actually or constructively in the possession of the read prop- erty sought to be divided. If it be held adversely to the applicant, he must first establish his right by action to recover his possession.-" -•->(artcr v. Day. 5!) O. S. 90. Where several deeds of release are executed as parts of one and the same transaction and to effect a single purpose, viz.: a partition of real estate between heirs, tenants in common, they must be read and construed together, and their com- bined effect must settle the rights under them. White v. Brocow, 14 O. S. 339; Dawson v. Lawrence, 13 0. 544. This last case holds that, where tenants in common execute deeds of bargain, sale and release, for the consideration of an agree- ment for partition and one dollar, they inure as deeds of partition only. 26 Roberts v. Remey, 56 0. S. 24*9. ■-'" Browns v. Broprietors, 7 Mass. !7.-> ; Wills v. Price, 9 Mas3. 508; Brownell v. Brownell, 19 Wend. 307; •Clapp v. Broneagham, 9 Cow. 501; Culver v. Culver, 2 Root, 278. zsTabler v. Wiseman. 2.O. S. 207 . 28 Quoted by the court i;i De- laney v. McFadden, 7 W. L. B. 2-07, from Freeman on Partition, § 447. § 306 MERWINE ON REAL ACTIONS. 380 It would seem from the result of the adjudged cases that the purpose of the whole proceeding in partition is to secure for the applicant an exclusive possession of his share of the joint real estate. The proceeding would be abortive, if after the applicant is awarded his share, he would still be out of the possession of the same. The requirement of the law is satisfied where the demandant for partition is seized of the real estate. This is so where the real estate to be partitioned is in the possession of a third person under a lease for a short term of years. This possession of the lessee is the pos- session of the owner, and is no bar to the proceeding. 30 From the foregoing rules of law as to possession in par- tition proceedings, we conclude that neither reversioners nor remaindermen are entitled to the writ when there is a life estate outstanding on the real estate sought to be partitioned. 31 And the reason and principle on which this rule seems to have been based is that the purpose and object of the law relating to partition is to give each of the co-parceners pos- session of his share in severalty. Where such possession in severalty can not be given to the real estate, no reason can be shown for invoking the aid of the law for the writ. 32 Sec. 306. Several estates, part of which under life leases, part of which not — Part can be partitioned and part not. Partition among heirs of an estate consisting of several tracts of land, some of which are held by some of the heirs under life leases, with remainder in fee to all, will only be granted on the properties unincumbered with such leases, unless the holders of the life estate join in the prayer for partition, in which case partition will be made of the whole, subject to leases. In this case, the court in the opinion, said: "By Revised Statutes 5754 (Gen'l Code, §12026), tenants in common and co-parceners of any estate in lands, tenements and hereditaments within the State may make or suffer -partition •11 v. Waite, 12 0. D. X. P. physical occupation, such as the 324. "The estate of the parties action of trespass." Werner v. here i- nol one in expectancy, but Glass, 16 W. L. B. 354, citing 1 in possession, because from the Washb. Real Prop (4th Ed.), pp. days of the feudal system until 72-442: 2 / 0. 485. 02(; ( .ri Code, §12032 (R. S. §5760). It has been held that there may be awarded, in a par- tition suit, t:> one of several ten- ants in common, who own several tracts of land, any one, or to each one, an entire tract. Smith v. Bar- ber, 7 0. (Pt. 2) 118. The court in this case quoted the following from Lit. Tenures, 2.51: "If two mesnes descend to two parceners, and one mesne is worth twenty shillings per annum and the other ten shillings per annum, i:i this case partition may be made be- tween them in this manner, to-wit: The one parcener to have the one mesne, and the other parcener, the other ; and she which hath the mesne worth twenty shillings per annum, and her heirs, shall pay a yearly rent of five shillings, issuing out of the same mesne, to the other par- cener and her heirs forever, because of the inequality." "Partition under the act of 1831 for partition of real estate, should either be made by setting off the demandant his portion and leaving the residue an entire tract for the other tenants, or by apportioning to each his proportion. A report setting off to the demandant his part and leaving the residue di- vided into several parts will, if ex- 389 SALE OF REAL ESTATE IN PARTITION. §316 Sec. 316. Commissioners to appraise land when they can not divide it — Election of parties to take the real estate at appraisement. When commissioners are of the opinion that the estate can not be divided according to the demand of the writ without manifest injury to the value thereof, they must return that fact to the court, with a just valuation of the estate ; there- upon, if the court approve of the return, and one or more of the parties elect to take the estate at such appraised value, the same will be adjudged to him or them, upon his or their paying to the other parties their proportion of the appraised value thereof according to their respective rights, or securing the same as hereinafter provided. 03 A very interesting case in partition, and the election to take the property therein after an appraisal, came before the courts in an action where the commissioners appointed to assign dower and make partition of the lands described in the petition, subject to a dower estate therein, stated in their report an assignment of dower by metes and bounds, and being of opinion that partition of the "balance" could not be made without manifest injury thereto, made and re- turned to the court their estimate of the value thereof in money, but made no partition of any part of the estate. Upon such appraisal a party to the partition suit elected to take the real estate at the appraised value. After the dower estate had been determined, certain of the heirs who had been defendants in the partition case, filed their petition in court, setting forth the proceedings in the suit for partition and the execution of the sheriff's deed, alleging that by mis- take and inadvertence the entire tract of land was included in the description of the premises therein described, instead of excepting therefrom that part assigned to the widow as eepted to, be set aside." Kerr v. Hooks, W. 610. For division by equal values and not equal acreage according to intent of a testator, see Corwine v. Mace, 36 0. S. 125. esGen'I Code, §12034 (R. S. §5762). See No. 256 and following for petition, answers, writs, pro- cesses in the action from the peti- tion to the delivery of the deed by the sheriff. By the act of 1810 ap- praisement of the real estate was not required. Glover v. Ruffian, 6 O. 255. Prior to the act of March 29, 1841, an appraiser, in the ab- sence of fraud, could be a purchaser at a sale of the real estate in par- tition. Bohart v. Atkinson, 14 0. 228; but such an appraiser can not now be a bidder at a partition sale of premises he assisted in apprais- ing. § 316 MERWINE ON REAL ACTIONS. 390 her dower and omitted from the appraisement made by the commissioners, praying that the sheriff's deed, so far as it related to the land set off to the widow, might be set aside. It was decided by the court in this action, that it was to be presumed that the "balance" of which in the opinion of the commissioners, partition could not be made without manifest injury, and which they therefore appraised, was the whole of the land described in the petition, subject to the dower estate.' 14 Where the proceedings in partition have been regularly made, and one of the parties to the action elects to take the property at the appraised value, as returned by the commis- sioners in partition, and the election is approved by the court, and a deed is ordered to be made by the sheriff to the party so electing, upon the payment to each of the heirs the part of the appraised value thereof so found to be due them re- spectively, such proceedings are sufficient to cast the title of the real estate upon the party so electing to take the real i 'state as aforesaid. In such case the sheriff not having mad ■ a deed to the purchaser, the title to the real estate in the party so electing to take the same, is good. 6a A part of the land acquired in partition proceedings may be regarded as coming to the owner by descent and a part by purchase. Where tenants in common of land inherited by them proceeded to make partition thereof under the parti- tion statutes, and one of the parties elected to take the land as provided by the statute, and. after obtaining a deed there- for pursuant to that section of the statute, died intestate, the court in determining the course of the title, decided that the title to so much of the land as came to the decedent by in- heritance, remained a title in him by descent, notwithstand- ing tin' proceedings in partition; but tin 1 remaining title acquired by such proceedings was a title by purchase. 68 Under the older partition statutes, a person residing on the lands sought to be partitioned and aparted, after having been given notice, and. on his application, was ordered by the court to become a party to the proceedings for partition, as a tenanl in common, and upon the report of the commissioners thai the [and could not be divided, and a return of their ''-•-'"- v. Jones, 39 <>. S. '.>•">. '^ Freeman v. Allen, 17 0. S. 527. hompsou v. Love, r_> <). S. 79. 391 SALE OF REAL ESTATE IN PARTITION. § 317 valuation, the lands were adjudged to such person 0:1 his election to take the same on their valuation so returned, and a deed was made to him in fee simple by the sheriff upon the approval and order of the court, such person by such act became seized in fee of said lands, and upon sub- sequent discovery that the person so electing and receiving the conveyance of the land, had in fact, at the time of the election, no interest therein, and not chargeable with fraud, his title so acquired could not thereby be impeached, and his only subsequent liability would be for the payment of that part of the valuation of the lands retained as his distributive share. 07 If a party elects to take the property in a partition pro- ceeding and a deed is made to him by order of the court, and he omits to have the taxes discharged before taking the title, and he, or his vendee, has to pay them, such payme. t of taxes can not be set up as a lien and recoup against notes and mortgage given for the security in the partition pro- ceedings. 68 Where a party sues out certiorari partition proceedings, it is a good defense that he still retains his proportions of the property where he elects to take in the court below. 69 Sec. 317. Terms of payment when estate taken by party — Execution of conveyances. If one or more of the parties elect to take the estate at the appraised value, the terms of payment, unless the court, on good cause shown, by special order direct and require the entire payment to be made in cash, or unless all the parties in iiLerest agree thereon, is required to be one-third cash, one-third in one year, and one-third in two years, with in- terest, the deferred payments to be secured to the satisfac- tion of the court; and on payment being made in full, or in part witli sufficient security for the remainder, as above provided, the sheriff shall, according to the order of tin; court, make and execute a conveyance to the party electing to take the same. 70 6 7 Rogers v. Tucker, 7 O. S. 417. 69 Tabor v. Wiseman, 2 0. S. 20!). 68 Callahan v. Rose, 2 W. L. B. ?o Gen'l Code, §120.35 ( R. S. 281. §5763). See No. 270 for form. §§318-321 MEBWINE ON REAL ACTIONS. 392 Sec. 318. Sale of the estate when parties do not elect to take the same. If no such election to take the estate be made, the court may. at the instance of a party, make an order for the sale thereof at public auction by the sheriff who executed the writ of partition, or his successor in office. 71 Sec. 319. How such sale conducted and the terms thereof. All such sales must be made at the door of the court house, unless the court, for good cause, direct the same to be made on the premises, and must be conducted in all other respects as a sale upon execution, except that it shall not be necessary to appraise the estate; but the estate can not be sold for less than two-thirds of the appraised value thereof, as re- turned by the commissioners; and unless the court, by special order, direct and require, on pood cause shown, the entire payment to be made in cash, the purchase money must be payable one-third on day of sale, one-third in one year and one-third in two years thereafter with interest. 72 Sec. 320. Confirmation of sale and execution of conveyances. On return of the sheriff of his proceedings, the court will examine the same; if the sale has been made, and the court approve such sale, the sheriff, on receiving payment of the consideration money, or taking sufficient security therefor, 1o the satisfaction of the court, will be required to execute and deliver a deed to the purchaser. 73 Sec. 321. Distribution of proceeds — Sheriff's liability. The money or securities arising from the sale of, or an election to lake the estate, must be distributed and paid by ■ i< ■ n'l Code, 112036 (R. S. and indispensable to invest the pur- :>7 ; . See No. 27<5 for form. chaser with title, and that a deed -Cii'l Code, g 12037 (It. S. from the sheriff not sealed, was in- ,.")i. sufficient to protect the purchaser n'l Code, S 12038 (R. S. in his title; but see Doe v. Dugan, See No. 272 for order con- 8 0. 87, and Goudy v. Shank, 8 O. ferri i sale; see No. Ill for form 415, in which there was a holding foT deed. It was held in Lessee v. that the title <>f the purchaser in a Merritt, .-, < >. s. 308, thai under Bale, on proceedings for partition, the ad of 1820, a deed of convey- is no1 affected by a failure to maice ance from the sheriff, duly executed, return of the purchase money or was by that acl necessary to a obligations into court. mplete execution of the power, 393 SALE OF KEAL ESTATE IN PARTITION. § 321 order of the court, to the parties entitled thereto, in lieu of their respective parts and proportions of the estate, accord- ing to their just rights therein; and all receipts of such money or securities by the sheriff shall be in his official capacity and his sureties on his official bond will be liable for any mis- application thereof. 74 The purpose and object of the statute in taking the securi- ties and giving time for the payment of the purchase money is not to provide a mode of investment for the benefit of the parties to the partition, but is for the object and purpose of encouraging bidders and thus effecting a better sale of the property. 75 In all partition proceedings, where the sheriff takes securi- ties in his own name from the purchaser for the deferred payments, and afterwards receives payment thereof and can- cels the same of record, the title to the real estate par- titioned of the purchaser at such sale, his mortgage and its discharge by the sheriff being matters of record, parties re- ceiving conveyances from him are affected with constructive notice of the lien of the parties for whose use the mortgage was made. 76 And it has been held that in proceedings in partition resulting in a sale of the land, such proceedings charge the purchaser with notice that the securities taken by the sheriff from the purchaser for the deferred payments are trust funds and the purchaser is required to see that the purchase money is properly applied. 77 The liability of the sheriff and his bondsmen extend even after the expiration of his term of office, and on his failure to deliver to the proper parties, in accordance with the order of the court, notes taken in partition proceeding during his term of office, for the purchase money for the property so sold in such partition, said sheriff and his bondsmen are liable. 78 In such actions where the sheriff converts to his own use notes thus given for the purchase price of real estate sold in partition, the measure of the damages in an action brought for such conversion is the face of the notes. 79 A sheriff who "Gen'I Code, §12039 (R. S. 78 Brobst v. Skillen, 16 O. S. 382. §5767). 79 Brobst v. Skillen, 1(5 0. S. 382; 75 Brobst v. Skillen, 16 0. S. 382. Sedgwick on Damages, 488; 2 76 Welsh v. Freeman. 21 O. S. 402. Greenl. Ev., §§ 276, 640; Mercer v. 77 Preston v. Compton, 30 0. S. Jones, 3 Camp. Rep. 477; Romig's 299. Adm'r v. Romig, 2 RawPs Rep. 211 ; §321 MERWINE ON REAL ACTIONS. 394 thus takes the notes of the purchaser of land at a sale in partition proceedings, and fails to deliver the same to the proper parties, the money paid him on a note and mortgage so taken, is liable therefor, although no special order of dis- tribution thereof is made by the court, and although the money was paid him after the expiration of his term of office; and if the sheriff by mistake pays the money due on such notes to the attorneys who procured the partition sale, but who were not specially authorized to receive the same, either by the parties entitled thereto, or by order of court, such liability of said sheriff is not discharged; and such liability may be enforced by suing the sheriff in such action as "late sheriff of County." 80 In considering questions of this kind now here, it was said : "Without reference to what may be the law on this subject in other States, it was settled in this State that where the money was received by the sheriff in his official capacity, the duty of holding and properly disposing of it was an official duty devolving upon him while in office, and although his term ends, the duty continues until discharged." 81 The notes and securities received by the sheriff in a sale of real estate in partition proceedings belong to the parties entitled under the statute to receive them in lieu of the land, and the sheriff is not authorized, by virtue of his office, to receive amounts secured thereby, nor to discharge the pur- chaser from liability to the narties to whom the purchase money is due. 82 (yDonohue v. Corby, 22 Mo. Hep. 394; Menkins v. Menkins, 23 Mo. Rep. 252. -"(akin v. Bruen, 79 0. S. 610, from which we quote the following from i he opinion in said case: ''The c ise of Preston v. ( ompton, .'!'» ' >. S. 299, is imt like this case. I lie defendants in error <-,m stand on their own rights and thsy can hold the plaintiff in error liable? for the money bo received for tlvro by him, whether he obtained it rightfully or wrongfully a^ sheriff <>r after his term of office expired. The cs Brobat ■•. Skillen, 16 <>. =5. 382, sus- tains t in j conclusion." Alexander, :!1 0. P. 378. Tn this case it was said that previous to the act of April M), 1808, there was no law in this Mate authorizing or requiring an out- going sheriff to deliver ovjr to his successor moneys, notes or mort- gages received and taken by him i;i his official capacity, the transaction in this case occurring before ihis act was passed, and the Cflso must be governed by the law 'is it stood at the time the transaction oc- curred. In fiis c niii"!-' ion, 1 he COUrl recited the ease of Kin-* V. Nichols, 16 0. S. 70: 15m! st v. Skil- len. 16 O. s. :!S:>; Griffin v. Under- wood, ie 0. s. :(so. 82 Walsh v. Freeman. 21 O. S. 102. 395 SALE OF REAL ESTATE IN PARTITION. §§322,323 Sec. 322. Proceedings when an estate has been once offered and not sold. When an estate has been once offered and not sold, an alias writ for the sale thereof may issue as often as need be ; and the court may order a revaluation, by three disinterested and judicious freeholders of the vicinity, to be appointed by the court, and direct a sale of the estate at not less than two-thirds of such revaluation ; or, if the court deem it for the interest of the parties, it may order a sale without such revaluation, at not less than such sum as it may fix. 83 Sec. 323. When successor of sheriff who made sale to execute conveyance. When a conveyance of land sold, or elected to be taken, is not made by the officer who made the sale, the court, being first satisfied that such a sale or election is regularly made, and that the purchase money has been fully paid or secured, may, on motion, order the sheriff of the county or officer per- forming the duties of sheriff, to execute and deliver to the The statute under which '.he fore- going decision was rendered pro- vided that upon the return of the sheriff of his proceedings, the same shall be subject to the examination of the court; and if the sale has been made, and the same is ap- proved by the court, the sheriff, on receiving the payment of the con- sideration monej', or taking suffi- cient security therefor, to the satis- faction of the court, shall execute or deliver a deed or deeds to the purchaser or purchasers of the es- tates so sold, and the said money or securities shall be distributed and paid by order of the said court to and amongst the several parties entitled to receive the same, in lieu of their respective parts or propor- tions of said estate or estates, ac- cording to their just rights and proportions. And that- in all sales made by the sheriff pursuant to an order in case of partition, unless the court shall, by special order, direct and require, on good cause shown, the sale to he made for cash down, the purchase money shall be payable one-third on the day of sale, one-third in one year and one- third in two years thereafter, with interest, the deferred payments to be secured to the parties agreeably to the respective interests, accord- ing to the tenth section of the act before mentioned. If the order confirming a par- tition sale directs a sheriff to take a note secured by mortgage for the deferred payment of the purchase money, but is silent in whoss name the note and mortgage should be taken, the sheriff should follow the direction of the statute, and, when there are several parties in inter- est, take a note in the name of each party in interest for such party's share of the deferred payment, and take a mortgage in the name of the parties to secure the several notes, cause the mortgage to be recorded, and distribute the notes to the bene- ficiaries. Preston v. Compton, 30 O. S. 299. ssGen'l Code, §12040 (R. S. §5768). §324 MERWINE ON REAL ACTIONS. 396 purchaser or person electing to take the property a aeed for the land so sold or elected to be taken. 84 Sec. 324. When widow is entitled to dower, or an interest is subject to a life estate. When a widow is entitled to dower in an estate in which partition is sought, dower must be assigned her therein, except in the following cases: (a) When an assignment thereof has already been made, (b) When she has, by answer, elected to be endowed out of the proceeds of a sale of the estate, and the commissioners do not make partition, but return a valuation of the estate, (c) When the right of dower extends only to an undivided interest in the estate. In the latter case, and in cases where an undivided interest is subject to a life estate, and the tenant for life has not, by answer, elected to receive the value of his estate out of the proceeds of a sale of the interest, the commissioners may, if an appraisement of the estate is to be returned, assign the dower, or set off the life estate,, or, if they find it for the interest of the parties so to do, they may appraise the whole interest, and the widow and the tenant for life shall receive the value of their interest out of the proceeds of the sale thereof. 85 As this subject is fully set forth in this book in the chapter on dower, we here cite in the note below the cases applicable to dower in partition. But it must be kept in mind that in partition proceedings, under the statute, the court has full power to assign dower in a special manner or otherwise than by metes and bounds, as it has in cases of petition for dower; and dower may, in such cases, be assigned in the form of a 84Gen'l Code, §12041 (R. S. §€769). "By the act to which ref- erence has been made ( Partition Ad of L820), in case of a sale of the property upon proceedings in partition, a deed of cnnvcyaniT from the sheriff, duly executed, was mad:' necessary to a complete execution of the power, and indispensable to I the purchasers to the legal title. The deed acquired must be ed and 8< "/- d by the sheriff in the presence of witnesses, and such Bigning and sealing acknowledged by him in open court. An instru- ment of writing duly acknowledged, but without being sealed by the sheriff, is insufficient, and the addi- tion of a seal many years afterward without another acknowledgment, will not make it available in a court of law, to protect a purchaser i Ti an action of ejectment brought by the infant or by one who has succeeded to heT estate." Lessee v. Borne, 5 0. S. 318. BsGen'l (ode. § 12D42 (R. S. §3770). See No. 262 for form of answer setting up widow's dower. 397 SALE OF REAL ESTATE IN PARTITION. §325 life annuity, and made a charge upon part of the real estate partitioned. 86 If a widow who, in a partition case, nies her answer, asking for sale and dower in proceeds, and dies pending the proceed- ing, and before final decree, the action may be revived in the name of her administrator and he will be entitled to what- ever her dower is worth from the time of filing her answer and cross-petition in the case to the time of her death, and the court can not authorize the commissioner in such case to fix the amount of the dower. 87 A doweress can not be de- prived of her rights in oil produced from a tract of land, by an order made in probate court, upon confirmation in par- tition proceedings. Such an order is coram non judice and void, and is not a bar to her right to recover. 88 If at the time co-devisees under a will partition an estate, one of them has an inchoate right of dower therein, and sub- sequently this inchoate right of dower becomes absolute by the death of the husband, she will not be estopped in equity from claiming her dower against her co-partitioners. 89 Sec. 325. Commissioners appointed to partition the estate to assign dower. The commissioners appointed by the court to make partition are required to set off to such widow her dower in the estate- 86 Miller v. Peters, 25 0. S. 270. Sale under partition proceedings divests dower and the wife of a tenant in partition is not a neces- sary party. Weaver v. Gregg, 6 O. S. 547, citing Jackson v. Edwards, 7 Paige, 386; Moore v. Mayor, 4 Seldon, 110. In case of parol par- tition long acquiesced in and bind- ing, a wife is dowable only in the portion assigned to her husband in such parol partition. Doctorman v. Elder, 27 W. L. B. 195; Smith v. Rothschild, 4 C. C. 545, which holds contrary to Weaver v. Gregg, that the widow is a necessary and proper party and whose dower interest, while divested by sale, attaches to proceeds of sale. Mandel v. Mc- Clave, 46 0. S. 107, and authorities there reviewed. V\ here the court so assizer! dower in a partition case, and there- upon made an order requiring the parties in partition, or their repre- sentatives or assigns, to pay the installments of annuity as they should fall due, and directing exe- cution to issue in case of default: Held, That this order was void for uncertainty; that no execu- tion thereon could lawfully issue against the parties to the partition ; and that the proper remedy of the doweress was by action to enforce the lien on the real estate so charged. Miller v. Peters, 25 0. S. 270. "Renner v. Bird, 2 W. L. B. 77. ss Wilfred v. Heimhoffer, 2 C. C. N. S. 369; Crocket v. Crocket. 52 W. W. Rep. 299; Spores v. Coen, 44 0. S. 497. 89 Walker v. Hall, 15 O. S. 355 "In such case equity will, while sus- taining the claim to dower, decree §326 MERWINE ON REAL ACTIONS. 398 and in the performance of such duty they are to be governed in all respects by, and the proceedings must conform to the provisions prescribing the duties of the commissioners in as- signing dower, under the statute. 90 Sec. 326. Partition — Power of guardian to act for ward. The guardian of a minor, idiot, imbecile or insane person may. L2050 (R. S. ing, etc., v. Loyings, 142 1'u. St. 121 ; Colea v. I oles, L3 X. J. Eq. young v. Stone, 55 0. S. 125; 365. Grubb'a Appeal B2 Pa. St. L; Kil- « Low.- v. Phillips, 21 O. S. G57. 403 SALE OF REAL ESTATE IN PARTITION. §§334,335 But a fee should be allowed and taxed as costs in a case where an attorney demurs to the petition oil the ground of a defect of parties which is sustained and new parties are brought into the ease. 9 Sec. 334. Certificate from court — Partition and deficiency of assets. If at any time after the institution of proceedings for the partition of lands of any deceased person, it is found that the assets in the hands of the executor or administrator of such deceased are probably insufficient to pay the indebted- ness of the estate and expenses of administration, the execu- tor or administrator is required to make a written statement to the probate court of the assets and indebtedness and ex- penses, and the court must forthwith ascertain the amount necessary to pay said indebtedness and expenses in addition to the assets, and give a certificate thereof to the executor or administrator. 10 A proceeding under these statutes (Gen'l Code §§ 10818, 10819 [R. 8. §§6173. 6174]) to procure a certificate of in- debtedness to file in a suit in partition is one to sell lands to pay debts, and where the claims for the payment of which the sale of land is required include one due the executor, the heirs should have notice and be allowed to defend against it. if such claim is denied. 11 Sec. 335. Court shall order proceeds of partition sale paid over to administrator or executor, when. The executor or administrator is required to present this certificate to the court in which the proceedings for partition are. or have been pending, and on his motion the court will order the amount named in the certificate as necessary, to 9 Leyman v. Leyman, 19 C. C. 054. io Gen'l Code/ §10818 ( R. S. §0173). See Form No. 280 for cer- tificate. "A journal entry, under which a certificate of indebtedness is issued by the Probate Court for the purpose of filing the same in a partition nit in the Common P'ea-. and obtaining money to pay # debts, as authorized by Gen'l Code. § 10818 (R. S. §0173), will be set aside where the statement of the execu- tor does not show all the assets and indebtedness of his estate, and especially where it does not show that the personal property is in- sufficient to pay the debts thereof." Tn re Estate of DeSerissy. 8 X. P. 094. 1 1 In re Estate of DeSerissy, 8 N. P. 094. § 336 MERWINE ON REAL ACTIONS. 404 be paid over to the executor or administrator out of the pro- ceeds of the sale of the premises if the same shall thereafter be sold, or have already been sold; provided that nothing in this section of the statute shall be so construed as to prohibit any executor or administrator from proceeding to sell land belonging to such estate to pay any debts, when the same has been sold on partition or otherwise, or the proceeds of said sale fully distributed. 12 Where an administrator has made full settlement and a judgment is afterward taken against the estate, in such case, for the payment of the judgment, the administrator is entitled to an order for the sale of so much of the real estate of which the intestate died seized, although such real estate may have been partitioned among the heirs of the intestate and by them sold and conveyed, wholly or in part, to purchasers thereof. 13 It is to be observed that none of the decisions nor these statutes authorizing the funds of a sale of real estate in parti- tion to go to the personal representatives to pay decedents, will stand in the way of such administrator who is a party defendant to a suit in partition from filing his answer and cross-petition in such case, and having an order made there- under that he be paiJ out of the sale a sum sufficient for the payment of the debts of the deceased. 14 Sec. 336. Partition can not be had within a year from death of decedent, when. It is to be observed, as shown above, that where title to the estate sought to be partitioned came to such person by descent or devise, upon the death of an inhabitant of this State, a part it inn thereof will not be ordered by the court within one y*-;w from the date of the death of such inhabitant, unless the petition gets forth, and it is proved that all of the debts and claims against the estate of such decedent have been paid, or '-(icn'l Code, S 10819 (R. S. ticc, to third persons now claiming ? 6174). Set Form No. :is ( .> for Mo- title in or through them, makes no tion; also Form No. 290 for Order, difference." See also In re Estate • Foran v. Robinson, 17 0. S. of Cavagna, S X. P. 557. 243. "The fad thai tl„. real estate " Lafferty v. Shinn, 38 O. S. 46; of plaintiffs intestate ha- Kern par- but s*>e Rowekamp v. Meyer, 10 titioned among hi- heirs, and by Rec. otiS. them conveyed, with or without no- 405 SALE OF REAL ESTATE IN PARTITION. § 336 secured to be paid, or that the personal property of the de- ceased is sufficient to pay the same. 1 "' Under the statute, a petition for partition will not lie within one year from the death of the ancestor from whom the estate was derived, unless it is averred and proved, (1) that there is sufficient personal property to pay the debts of such an- cestor's estate, (2) that the debts are paid, or (3) that the debts are secured as provided by the statute which recites that an order for the sale of real estate shall not be granted, if any of the persons interested in the estate shall give bond to the executor or administrator in a sum with sureties to be approved of by the court, with the condition to pay all the debts mentioned in the petition that shall eventually be found due from the estate, with the charges of administering the same and the allowance in money to the widow, so far as the personal estate of the deceased shall be insufficient therefor. 16 It was said by the court in construing this statute, that the time within which a petition in partition, after the death of the ancestor, might be filed, was not limited; that the peti- tion could be filed at any time, and that the decree in parti- tion could not be entered until the expiration of the year. 17 In this connection it may be said that a claim against a decedent can not be paid out of the proceeds of a partition suit of his estate, but such claim must be presented to the ad- ministrator or executor in the usual way. 18 And a widow, who has a dower interest in the real estate of her deceased husband, and who in connection with one of the heirs of the estate, gives bond to prevent a sale of the isGen'l Code, §12028 (R. S. § 575 ( » i . Prior to the amendment of this statute, March 20, 1891, an heir at law could immediately on the death of the ancestor, commence an action to partition the real es- tate, whether the ancestor owed debts or not. Smith v. Montag, 32 W. L. B. 153. The limitation witli reference to proceedings in parti- tion found in Gen'l Code, § 12028 (R. S. §5756) refers to the time of the entering of the decree, and not to the time of the filing of the petition. is Smith v. Montag. 32 W. L. B, 183; Swihart v. Swihart. 7 C. C. 338. it Fryman v. Fryman, 9 C. C. 95 ; but contm, Swihart v. Swihart, 7 C. C. 338; Smith v. Montag. 32 W. L. B. 153. Where by a will it is provided that there should be no partition of the estate until ten years after the testator's death, it has been held that such provision is valid. In re Reynolds' Will. ? N. P. 626. is Weiss v. Geddes, Dayton, 31. §§337,338 MERWINE ON REAL ACTIONS. 40G real estate to pay decedent's debts, and has paid such debts, is not a volunteer, but is entitled to subrogation, and in a proceeding in partition among the heirs must be reimbursed from the fund arising from a sale of the property in such partition proceeding. 10 Sec. 337. Advancements — Hotchpot in partition. Upon the subject of advancements in partition an eminent text writer has said: "In effecting a distribution of the estate among the heirs, if any one of the heirs receive a part of the ancestor's estate during his lifetime, it is required that the same be considered as a part of the estate of the deceased, and be deducted from the share surh heir was entitled to under the law of descent. In determining the share of each, the property so advanced is added to the rest of the estate, and the division is then made by dividing the aggregate amount equally among the heirs, the amount advanced being treated as a part of the share of the heir to whom it was given. In the curious etymology of the common law, this doctrine w r as called 'hotchpot.' The doctrine is now more commonly understood under the term advancement.'* * * A single gift without proof of such intention, will be considered an absolute gift, and can not affect the donee's right to an equal share in the de- ceased 's estate." -" Sec. 338. Advancements by an intestate to be considered a part of the estate. 1 !' any estate, real or personal, has been given by any in- testate in his lifetime as an advancement to any child or chil- i» Core} \. Hayes, \'-'< C. C. 185. widow, who, being interested and "The administrator, the debts being liable, furnishes the administrator otherwise unprovided for under the the wherewithal to pay, to conn: provisions of Gen'l Code. 5 10818 into court in a similar way and R. S. & 6173), mighl come into a be reimbursed and made whole for partition proceeding and have an her outlay." Ihnl. order of the court requiring a suf- 2 <>Tiedeman on Real Property, (icienl amount of the proceeds of § (>7'2. citing Chailsey v. Chadsey, a Bale in partition paid to him 1 i "2ii III. App. 4n!) ; in re Roberts' discharge the debts of decedent; and Estate, 111 \. Y. 372; Noel's it does not seem to us t i he at all Adm'r v. Noel's Adm'r ( Va. ) , a violation of either the spirit or '.> S. E. Rep. ~>x+: Ritch v. letter of that law to allow the Hawxhurst, 11+ X. Y. 512; In re 407 SALE OF REAL ESTATE IN PARTITION. 5 339 dren of such intestate or their descendants, it will be con- sidered and held to be a part of the estate of the intestate, so far as it regards the division and distribution thereof among his or her children or their descendants, and will be taken by such child or children or their descendants toward his or her share of the estate of the intestate.- 1 Where the petition in partition charges that a certain sum of money was advanced by a decedent to a daughter, it will be presumed that it was advanced in personalty and not in real estate. In such ease if it be claimed that decedent made the advancement to the husband of decedent's daughter, it is necessary that the petition charge, in order to have the ad- vancement charged against her. that she knew of the advance- ment to her husband and of the intention of the gift to her. and that she acquiesced therein.- 2 The allegations of such petition need not aver the time when such advancement was made. 23 Sec. 339. When the advancement is greater or less than the heirs' share. If the amount of such advancement equals or exceeds the share of the heirs to whom such advancement has been made, lie or she must be excluded from any further portion in the division or distribution of the estate, but shall not be required to refund any part of such advancements; and if the amount so advanced is less than his or her full share, he or she shall be entitled to as much more as will give him or her full share of the estate of the intestate.- 4 Robert, 4 Dem. 185: Kintz v. Fri- day. 4 Dem. 540; White v. Moore. 23 S. C. 456; Hill v. Bloom, 41 X. .1. Eq. 270: Harper v. Harper, 92 X. C. 300; Wilson v. Kelly. 21 S. i . 535; Simpson v. Simpson, 114 111. 003; Long v. Long, 10 111. 383; Met lintock's Appeal. 58 Mich. 152: Catoe v. Catoe (S. C. 1890), 10 S. F. 1078; Sadler v. Huffhines (Ky. 1890), 12 S. W. 715: Smith v.. Brown. 66 Texas. 543; 1 S. W. 573; Lon charged against her in the distril u- tion of hi< intestate property, if she, knowing the fact and intention of the gift, shall have acquiesced therein. Admr. v. Executor. 22 ' ). S. 436. 23 Courtier v. Courtier. 7 X. P. 154. 24 Gen'l Code. § 8586 i R. S. §4170). <^,. al S o Moore v. Free- man, 50 O. S. 592. § § 340, 341 MEEWINB OX REAL ACTIONS. 408 Sec. 340. When the advancement is wholly real or personal estate. If any such advancement is made in real estate, the value thereof must be considered and taken as a part of the real state to be divided, and if in money or other personal estate, it shall be considered and taken as a part of the personal tte to be distributed; and if, in either case, it exceeds the share of the real or personal estate that would have come to the heir to whom such advancement had been made, he or she will not be required to refund any part of it. but shall receive so much less out of the other part of the estate of the intestate, as will make his or her whole share equal, as near as can be estimated, to that of either of the other heirs who are in the same degree of consanguinity with him or her.- 5 Sec. 341. When value of advancement expressed in a deed. If the value of the estate, real or personal, so advanced, is expressed in a deed of conveyance, or in the ciiarge thereof made by the intestate, or in the receipt in writing given by the person receiving such advancement, it shall be considered and taken to be of that value in the division and distribution of the estate, otherwise it shall be estimated at its value when advanced. 26 The importance of the foregoing provisions, when applied to a proceeding in partition, is seen at once. In drafting a petition for partition among the heirs of an estate when some of the heirs have received advancements in real estate or in personalty, the pleader must keep in mind the various statu- tory requirements above. This is seen in the form for an equitable partition hereinafter set forth. 27 Want of space forbids a further discussion of this most interesting subject. However, below, in the notes, will be found the decisions of the various courts in this State con- st ruing the statute and determining the rules of law as to advancements. 88 | ..„•] (.„!... 5 8587 (R. S. 28 Father may direct conveyance 71). to a child and the law will regard I •• • 'i 'ode, §8588 (R. 8. the same as an advancement. Frem- 1 4172 . per v. Barton, 8 O. 4 18: Creed v. — Fi Tin No. 270 for form Lancaster Bank, 1 0. S. 1; Van for Petition in Equitable Parti- Zant v. Davies, G O. S. 52. As to ti,,n. gifts to sons-in-law, see Needles v. 409 SALE OP REAL ESTATE IN PARTITION. §342 Sec. 342. Judgments in partition can not be collaterally- assailed. The proceedings and judgments in all partition proceedings, like judgments in other actions, bind the parties and privies thereto, while unreversed, however erroneously the proceed- ings may have been conducted, and such proceedings and judg- ments can not be attacked collaterallv.'-' 9 Needles, 7 0. S. 432. Advancement .statute not abrogated by partial disposition of estate by will. Dit- low v. Cluney, 22 0. S. 436; Bam v. Wick, 14 0. S. 507; children of a deceased heir charged with ad- vancement, when. Parsons v. Par- sons, 52 0. S. 470. Property given to a child for support and educa- tion not an advancement. Walkers Am. Law (9th Ed.), 400. Effect of intention in gift of personalty to a child. Fels v. Fels, 1 C. C. 420. As to effect of intention, see also Stichtentoth v. Toph, 23 W. L. B. 12(5. Presumption as to ad- vancement made prior to execution of will. Wright v. Merchant, 5 W. L. M. 105. Advancement can not be made by parol. Williams v. Mears, 2 Disney, 614; see also Story's Equity Jur. § 706a, 703; Halloway v. Headdington, 8 Sim. 324: Jeffries v. Jeffries, 1 Craig & Phelps, 138; Callaghan v. Calla- ghan, 8 CI. & Finn, 374. Time when advancement given imma- terial and need not be averred. Couster v. Couster, 7 X. P. 154. By Gen'l Code, §8587 ( R. S. § 4171*) advancement is taken out of kind of property in which gift was made. Reeves v. Hunter, 62 O. S. 619. Formerly the stat- ute provided for advancements in realty only. Putman v. Putman, 180, *347: Myers v. Warner. 18 O. 519; Miller v. Wilson, 15 0. 108. As to construction of receipt for gift, see Overholser v. Wright, 17 0. S. 157; see also Stump v. Stump, 26 O. S. 169. Property conveyed by father to son as an advancement may be reached by creditors. Swihart v. Shoum, 24 0. S. 432. For discussion of advance- ments in connection with construc- tion of wills, see Stableton v. El- lis, 21 O. S. 527; Hosmer v. Stur- gis, 31 O. S. 657; and as to deeds, see Thompson v. Thompson, 18 O. S. 73. When administrator who is compelled to pay distributive share will be subrogated as to ad- vancement, see Staynor v. Bower, 42 O. S. 314. For construction of advancements and adjustment of same under will, see Stableton v. Elison, 21 0. S. 528. 29 Dabneg v. Manning. 3 O. 321 ; and in Lessee, etc., v„ Rehire, 6 0. 255, it was held "that in the case of an order for sale of real estate, on petition for partition, under the act of 1810, the proceeding being in rem before a court of competent jurisdiction, it must be presumed that the court made the order on a state of facts being proved that gave jurisdiction and authorized the exercise of it.'' And judg- ments in partition can not be col- laterally attacked. Smith v. Pratt, *13 O. 551. The regularity of proceedings in partition can not be inquired into collaterally. Wil- son v. Bull, 10 P. 251; see also Lessee, etc., v. Dugan, 8 O. 87, in which it was said: "If error inter- vened, certiorari was the proper remedy." Bohart v. Atkinson, 14 O. 228; Rogers v. Tucker, 7 0. S. 417; and as to what is not a col- lateral attack on proceedings in partition, see Main v. Streng, 13 0. D. X. P. 446; see also on the subject of collateral attack. Lan- don v. Payne, 41 0. S. 303; Eng- §343 MERWINE ON REAL ACTIONS. ilO And it will generally be presumed that the court in enter- ing its judgments in partition did not procede without first taking every step required to give it jurisdiction.' 10 It has been held that errors in the proceedings in a parti- tion case can not be subject of collateral attack by another proceeding to set aside the partition, though the purchaser was one of the parties. 31 However, in a proper proceeding wherein fraud is alleged, relief will be granted, as for instance, where adult heirs obtain a decree upon insufficient evidence against their infant co- heirs of tender years, for a large portion of the estate, as having been purchased from an ancestor, but which was in fact given by way of advancement; find also obtain a decree for partition of the residue of the estate and the proceedings are managed solely by the adult heirs — no defense being made for the infants and no day given them to show cause against the decree — the partition will be set aside and a new partition ordered. 3 ' 2 Sec. 343. Lien against co-tenant attaches to share set off to him in severalty by partition. Our courts have invariably held that a lien on undivided share before partition will follow and attach to the share set apart to him by a voluntary or involuntary partition. 33 The court in announcing this principle said the reason for it was that the right of partition is an incident to the estate, lish v. Monevpenny, P> C. C. 554; Glemser v. Glemser, 5 N. P. 170. "Partition of land held in common will hind the owner of an interest, although other persons may have represented his right in the par- tition proceedings." Thompson v. Gotham, 9 <>. 17(t. But this was in a case begun thirty years after the partition. :; " Freeman on ( !o-tenancy and Partition, §528, bul see Craig v. 'laker. 1 Dana, lilll 1 ; < '.u\ ton V. Shane. 7 Dana, 108; Smith v. Moore's Heirs, 5 Dana, 117: New all v. Sadler, 16 Mass. L22; Jenk v. Rowland,* ■'! Gray, 537 ; Thayer v. Thayer. 7 Peck, 209. si Glemser v. Glemser, "> 170. X. P. "• 2 Long v. Mulford, 17 O. S. 484; see also Roberts v. Roberts* in o. s. 96, wherein it was de- cided that a judgment against a minor in an action wherein he did not have his day in court, may be reversed upon petition in error tiled by him within the statutory time after reaching the age of ma- jority. 88 Cincinnati v. Thompson, 10 \V. L. B. 226; Jackson v. Pierce, 10 Johnson, H3; Crosby v. Allyn, 5 Grienal. 453; Williams College v. Milhtl. 12 Mo. 398; Thurston v. Mevke, 32 Md. 571; Williard v. Williard, 56 Pa. St. 571. 411 SALE OF REAL ESTATE IN PARTITION. § 344 and whoever takes an incumbrance upon the undivided inter- est of one takes it subject to the right of others to hold their shares in severalty. 34 Sec. 344. Rights of a joint owner who pays his portion of a tax — Those not paying held liable as if partition had not been made — A tax on lands sold at judicial sale to be paid out of proceeds of sale — Part owner paying tax on whole tract shall have lien. In all cases where any tract of land may be owned by two or more persons, as joint tenants, eo-parceners, or tenants in common, and one or more of the proprietors shall have paid, or may hereafter pay the tax, or tax and penalty, charged or chargeable on his or their proportion cr proportions of such tract, and one or more of the remaining proprietors shall have failed, or may hereafter fail to pay his or their proportion of the tax, or tax and penalty, charged or charge- able on said land, and partition of said land has or shall be made between them, the tax, or tax and penalty, paid as afore- said, shall be deemed to have been paid on the propor- tion or proportions of said tract, set off to the proprietor or proprietors who paid his or their proportion of said tax, or tax and penalty ; and the proprietor or proprietors so paying the tax, or tax penalty, as aforesaid, shall hold the proportion or proportions of such tract, set off to him or them as aforesaid, free from the residue of the tax, or tax and penalty charged on said tract before partition ; and the proportion or proportions of said tract, set off to the proprietor or proprietors who shall not have paid his or their proportion of said tax, or tax and penalty, shall be charged with and held bound for the portion of said tax, or tax and penalty remaining unpaid, in the same manner as if said partition had been made before said tax, or tax and penalty, had been assessed, and said proportion or proportions of said tract originally listed for taxation in the name or names of said delinquent proprietor or proprietors; and whenever any lands so held by tenants in common shall be sold upon proceedings in partition, or shall s* Cincinnati, etc., v. Thompson, ris, 13 Bush, 323; Potter V. 10 W. L. B. 226; Wright v. Vick- Wheeler, 13 Mass. 503. ers. 81 Pa. St. 122; Hall v. Mor- §§345,346 MERWINE ON REAL ACTIONS. 412 be taken by the election of any of the parties to such proceed- ings, or when any real estate shall be sold at judicial sale, or by administrators, executors, guardians or trustees, the court shall order the taxes and penalties, and the interest thereon against such lands, to be discharged out of the proceeds of such sale or election; and any part owner who shall pay the tax on the whole tract or tracts of which he is part owner, shall have a lien on the shares or parts of the other part owner for the tax paid in respect of their shares or parts which, with interest thereon, he shall be entitled to receive on sale or partition of such lands, and the collection of which, with interest, he may enforce like any other lien or charge. 35 Sec. 345. Purchasers may have partition as in other cases. Any person or persons claiming any land, in-lot, out-lot or part of lot by virtue of any sales made by the provisions of an act for forfeited tax lands, as tenant in common with any other person or persons, may apply for partition of the same, in the same manner as now is or may be provided for the partition of real estate; and on presenting the county auditor's deed, the court before whom application for partition as aforesaid is made, shall set off to such person or persons the land claimed in said deed as his or their share, in the same manner as prescribed by law for the partition of estate or estates in lands, tenements or hereditaments of joint tenants, tenants in common, and co-parceners. 36 Sec. 346. Appeal and error in partition. For a long time there was considerable doubt as to whether an action in partition is appealable. But it is now the law that such an action is appealable no difference whether the facts alleged in the petition invoke the equitable jurisdiction of tin- court or n<»t. the action being one in which the parties are not entitled to a trial by a jury. However, it is the order and judgment of the court in awarding the partition that is the final order, and is appealable. In an action to obtain the partition of real estate, the judgment that finds tin- parties to be tenants in common, ascertains and declares the shares of each and orders the shares so found to be aparted to MGenl Code, §5690 (R. S. 3cCen'l Codo, §5765 (R. S. 364). §2900). 413 SALE OF REAL ESTATE IX PARTITION*. § 346 the several owners, is the one that determines the rights of the parties, and it is from this decree that an appeal in this class of actions may be taken. 87 And whatever the Law may be elsewhere, it has finally been decided in this State, not to allow appeals from orders of the court of common pleas in proceedings after judgment, such as confirmations of, or setting aside sales of. real estate and the like. The action of the court of common pleas in such cases is reviewable only by proceedings in error. 38 Below will be found the cases on this subject. 39 "When from the whole record it appears conclusively that the proper judgment was rendered, a proceeding in partition will not be reversed on error even if the court mistook the law on some of the propositions discussed during the trial." 3" McRoberts v. Lockwood, 49 0. S. 374. ss McRoberts v. Lockwood. 40 0. S. 374; Reeves v. Skenett, 13 0. S. 574. 39 Rush v. Rush, 29 0. S. 441; Barger v. Cochrun. 15 0. S. 460; Stableton v. Ellison, 21 0. S. 527; Hinde v. Whiting, 31 0. S. 531; Mack v. Bonner, 3 0. S. 3G6; Hoy v. Hites, 11 0. 254; Linton v. Lay- cock, 33 0. S. 128; English v. Moneypenny. G C. C. 554; Corwine v. Mace. 36 0. S. 125: Hinde v. Whiting. 31 0. S. 53: Stone v. Dos ter, 7 C. C. 8; Swinhart v. Swin- hart. 7 C. C. 338; Elstner v. Fill- er, 12 C. C. 517: Kleaver v. Sew- all, 33 W. L. B. 56; Couard v. Couard, 38 0. S. 467: Robinson v. Brauff, 10 Rec. 485: Jordan v. Jordan. 8 C. C. 431; Wilder v. Wilder. 1 C. C. X. S. 8. 40 Harmon v. Kelly, 19 0. 502. FORMS. PROCEDURE IN PARTITION. FORMS. 256. Petition in partition and to quiet title. 2,57. The precipe. 258. The summons. 259. Sheriff's return of service of summons. 260. Answer of guardian for an infant. 261. Waiver of summons and en- try of appearance. 262. Answer of widow asking to be endowed out of proceeds of sale. 263. Motion for appointment of guardian ad litem. 264. Order ippointing guardian ad litem. 265. Answer of guardian ad litem. 266. Decree of partition. 267. Writ of partition directed to the sheriff by the clerk. 268. The commissioners' report. 269. Sheriff's return of his proceed- ings under the writ. 270. Election of plaintiff to take the real estate at the ap- praisement. 271. Entry confirming sale, order <• divided and i- sold. 274. The sheriff's return of his pro- ceedings under the writ. 275. I he commissioners' report of their proceedings under the writ. 276. Order of Bale in partition — Legal ied ice — Publication — Sheriff's return. FORMS. 277. Petition for partition — When advancements have been made. 278. Petition in partition — When there is an accounting for rents and profits. 279. Petition for equitable parti- tion when there have been advancements. 280. Petition for partition by guar- dian. 281. The answer in partition. 282. Cross-petition of defendant setting up mortgage claim on real estate sought to be partitioned. 283. The order for publication for unknown heirs or devisees. 284. Legal notice to unknown heirs. 285. Legal notice. Sale of real es- tate in partition by the sheriff. 286. Form of certificate to probate court. 287. Journal entry allowing above application. 288. Certificate under previous or- der. 289. Motion by administrator ask- ing for a fund from the estate to pay debts of de- cedent. 290. Entry sustaining above mo- t ion. 291. Proof of publication in parti- tion proceedings. 292. Legal notice and service by publication i*i partition proceedings. 414 415 POEMS. FORMS. FOBMS. 293. The affidavil for service by 295. Writ of dower when the same publication in partition can not be assigned l>y proceedings. metes and bounds, and 294. Report of commissioners as- there is an assignment of signing dower by metes and rents and profits, bounds, and awarding par- tition by metes and bounds. No. 256. Petition in partition and to quiet title. Court of Common Pleas, County, Ohio. E. S. G., Plaintiff, vs. No - • M. D. B., a minor, H. B., a minor, H. R. W., as Guardian of the Estates of M. D. B. and H. B.; K. L. B., E. L. B., T. E., T. R. and F. H., as Trustees and Executors under the Last Will and Testament, Trust Disposition and Settlement of H. B. R., deceased, R. D. J. M. A., C. W. B., F. W., C. W., and I. W., Defendants. Petition. The plaintiff, by way of petition for partition, represents to the court that she has a legal right to and is seized in fee simple of the undivided part of the following described real estate, situated in the State of Ohio, in the County of , to-wit: (Here describe real estate ) . Plaintiff further says that she derived title to said premises by virtue of a certain conveyance, made, executed and delivered to her by one W. W. F., dated , 19 , and of record in D. B. -1 t page in the office of the recorder of County, Ohio; that' on the day of , 19 , the - Company conveyed said above described real estate by deed duly executed and delivered to W. W. B. and said W. W. F.; that said last mentioned deed is of record in D. B. page in the office of the recorder of sai d County; that at the time of the execution of said last mentioned deed, the following persons, to-wit: W. W. B., H. L. B., H. B., who intermarried with one T. R.. L. T. B. and F. B., who intermarried with one R. D. J. M. A., all children of W. C. B., deceased, furnished % in money of the consideration paid for said real estate thereby conveyed; that for convenience at the time, the title to said real estate was taken in the name of W. W. B.. and W W F said W. W. B. being the owner in fee simple of the undivided Part of said real estate in trust for himself, said H L B., said H. B. R.. said L, T. B. and said F. B. M. A. being brothers and sisters, and the children of said W. B. C, and the MERWINE ON REAL ACTIONS. 416 said W. "W. F. being the owner in fee simple of the undivided ■ part thereof, in trust for said plaintiff, E. S. G.; that thereafter, as above mentioned, said W. W. F. conveyed to said E. S. G., the undivided part of said premises in fee simple. Plaintiff further says that on the day of , 19 , said W. W. B. died intestate, survived by his widow, K. L. B., and by his two daughters, M. D. B. and H. B., minors of the ages of 14 and 12 years, respectively, as his sole heirs at law and legal representatives, and that all the debts of said W. W. B. have been fully paid. On the day of -, 19 , said H. L. B. died in- testate and without issue in the of survived by his widow E. L. B. All the debts of said W. W. B. have been fully paid. On the day of , 19 , said H. B., who had intermarried with one T. R., died testate and without issue, in the of , survived by her said husband T. R. The last will and testament, trust disposition and settlement of H. B. R., deceased, was duly and properly probated and recorded according to the laws of and a duly certified copy thereof, together with duly authenticated costs of proceedings necessary to prove said instrument according to the laws of , were on the day of — ■ , 19 , regularly and duly admitted to record by the Probate Court of the County of , State of Ohio, and are of record in Will Record , page . Plaintiff avers that by said last will and testament, trust dis- position and settlement, said H. B. R., deceased, did dispose and make over to said T. R. and F. H. and to the survivor and acceptor of them, as trustees and trustee all and sundry the whole means and estate, heritable and movable, real and personal, of every kind and descrip- tion, and wheresoever situated, that shall belong to said testatrix at the time of her decease, for the uses and purposes mentioned in said instrument; that said trustees accepted said trust, properly qualified, and are now acting as such trustees, and, as such, are entitled to the interest of the said H. B. R., deceased, in said premises hereinbefore described. Plaintiff further alleges that on the day of , 19 , said L. T. B., died, testate, without issue, and unmarried; that his last will and testament was duly admitted to probate and recorded in the municipal court of the City of , County of , and State of , being his residence at the time of his decease; that a copy of said will, duly authenticated by the municipal court of the City of , State of , was, on the day of , 19 , admitted to record by the Probate Court of County, Ohio, and is recorded in Will Record, , page ; that all his debts, together with the legacies due by the terms of his said will, have been fully paid; that by his said last will and testament, said testator provided that after the payment of the debts and legacies, all the rest, residue and remainder 417 FORMS. of his estate, of which his interest in the real estate above described was a part, should vest in H. R. W., his heirs and assigns forever, in trust for the sisters of said L. T. B., to-wit: H. B. R. and F. B. M. A. or the survivor of them, and in the event of the death of both sisters, then to the children of said sisters living, or the issue of any deceased child, and that in the event said H. B. R. and F. B. M. A. should decease without issue living, then said H. R. W., as said trustee should pay over, transfer and convey said estate so held by him, to the following persons, to-wit: to C. W. B. of a share; to F. W., C. W., and I. W., all of , each a share, and that said H. B. R. and F. B. M. A. have both deceased without issue. Plaintiff further says that on the day of , 19- said F. B., who had on the day of , 18 , inter- married with one R. D. J. M. A., died in the of , testate, without issue, survived by her husband, the said R. D. J. M. A., that prior to her marriage, to-wit: on the day of !_ 18 , the said F. B. and the said R. D. J. M. A. entered into an ante-nuptial agreement whereby their mutual property interests then held and that were to be acquired, were to be placed in the hands of F. H. and G. G. B. S., all of , and H. R. W. of , and the survivors of them, all trustees, that said ante- nuptial agreement also provided, among other things, that in the event of the death of the said F. B. survived by the said R. D. J. M. A., said trustees were to grant and allow to the said R. D. J. M. A. the free life rent, use and enjoyment of said property during his lifetime, and in the further event that if the said F. B. should die without issue, then upon the death of the said R. D. J. M. A., should he survive the said F. B., said property should be paid and conveyed to such person or persons as said F. B. by her last will and testament, deed of settlement, or any other writing under her hand, which notwithstanding her coverture, she was thereby em- powered to execute alone, should direct, appoint or bequeath the same; that by her last will and testament, trust disposition and settlement duly approved according to the laws of , being the place of her residence at the time of her death, and of which last will and testament a duly and properly authenticated copy of the pro- ceedings necessary to prove said instrument according to the laws of were on the day of , 19 , by the Probate Court of County, Ohio, regularly admitted to record in said county and recorded in Will Record , page , said testatrix, F. B. M. A., for the settlement of the succession of her means and estate did dispose, make over and devise and bequeath to the said R. D. J. M. A. after the payment of the debts, sick bed and funeral expenses, all the rest, residue and remainder of her said means and estate to him absolutely, and on the day of , 19 , the trustees and executors under the last will and testament of the said F. B. M. A. by their deed of that date, of record in the MERWINE ON REAL ACTIONS. 418 recorder's office of County, Ohio, Record of Deeds, vol. , page p conveyed the same to said R. D. J. M. A. Plaintiff further says that at the date of the death of said W. \V. B. he was seized in fee simple of the undivided part of said premises in trust as aforesaid; that at his death the defendant K. L. B., as his widow became entitled to dower in the said undivided part thereof, and said H. L. B., H. B. R., L. T. B. and F. B. M. A. each became entitled in fee simple to an undivided part and portion in said premises. Plaintiff further says that she has a legal right to, and is seized in fee simple, of an undivided — -*- part of the real estate hereinabove described and of which partition is herein sought; that the following named defendants are tenants in common with her in said premises in the following proportions, to-wit: the defendants M. D. B. and H. B., each, as the only heir of said H. L. B., deceased, have a legal right to and are seized in fee simple of an undivided part of said real estate. The defendants C. W. B., F. *W., C. W., and I. W., each have a legal right to and are seized in fee simple of an undivided part of said real estate as devisees under the last will and testament of L. T. B., deceased; and the defendant R. D. J. M. A. has a legal right to and is seized in fee simple of an undivided part of said real estate under and by virtue of the pro- visions of said last will and testament of said F. B. M. A., deceased. Plaintiff further says that the defendants, M. D. B. and H. B., are minors, aged respectively, 14 and 12 years, living with their mother, the defendant K. L. B. in the City of , Ohio, and that the said H. R. W. was, on the day of , 18 , by the Probate Court of County, Ohio, duly appointed and qualified as the guardian of the estates of said minors, and is now acting as such guardian, and as such, is made a party defendant to this petition. Plaintiff further says that the real estate herein sought to be partitioned is free from all and any encumbrance whatsoever, except the current taxes and assessments. Wherefore, plaintiff prays a decree confirming the respective shares of the parties in said real estate as above set forth, and for a decree terminating this trust and quieting the title to said premises, and for partition of said real estate according to the respective rights of the persons thereto, including the assignment of the dower estate of the defendant K. L. B., as above set forth, and that if the said real estate cannot be divided among said tenants in common, with- out manifest injury to the value thereof, that the same may be sold and the proceeds divided among said parties as they may be found to be entitled thereto, and for such other and further relief as is just, equitable and proper. Attorneys for Plaintiff. 419 FORMS. State of Ohio, County, ss.: , being first duly sworn, says that he is one of the attorneys for the plaintiff, E. S. G., and duly authorized in the prem- ises; that the said E. S. G. is absent from the County of and State of Ohio; and that she is a non-resident of said county and State; and that the facts stated and allegations contained in said foregoing petition are true, as he verily believes. Sworn to before me and subscribed in my presence on this day of , 19 . , Notary Public, County, 0. No. 257. Precipe. Court of Common Pleas, — County, Ohio. (Same caption as in petition.) Petition. To the Clerk of the Common Pleas Court, County, Ohio: Issue summons in the above entitled action directed to the sheriff of County, Ohio, for the defendant, M. D. B., a minor 14 years of age, and H. B., a minor 12 years of age. Endorse summons, "Action for partition and equitable relief." Attorneys for Plaintiff. No. 258. Summons. State of Ohio, County, ss.: To the Sheriff of said County, Greeting: You are commanded to notify M. D. B., a minor 14 years of age, and H. B., a minor 12 years of age, that they have been sued by E. S. G. in the Common Pleas Court of County, and that unless they answer by the day of in the year of our Lord 19 , the petition of said plaintiff, E. S. G. against them, filed in the clerk's office of said county, such petition will be taken as true and judgment rendered accordingly. You will make due return of this summons on the day of in the year of our Lord one thousand nine hundred and . Witness my hand and seal of said court, this day of , in the year of our Lord one thousand nine hundred and L„ S. Clerk of Court of Common Pleas, ('trinity. Ohio. By , Deputy. MERWINE ON REAL ACTIONS. 420 No. 259. Sheriff 's return of service of summons State of Ohio, County, ss.: Received this writ on the day of , 19 , at o'clock ii., and pursuant to its command, on the day of in the year of our Lord one thousand nine hundred and , I served the same by leaving a true and duly certified copy of this writ, with all the endorsements thereon, at the usual place of residence of each of the following within named defendants, M. D. B., a minor 14 years of age, and H. B., a minor 12 years of age. Also on the same day I served the same by leaving a true and duly certified copy of this writ with all the endorsements thereon, for each of the said minors, with K. B., mother of M. D. B. a minor 14 years of age, and H. B., a minor 12 years of age, at her usual place of residence, not being able to find after due and diligent search, a guardian or father for or of the said M. D. B. or H. B., minors aforesaid, within my bailiwick. , Sheriff, By , Deputy. No. 260. Answer of guardian for infant defendant. Court of Common Pleas, — County, Ohio, (Same caption as in petition.) Answer of Defendant, H. R. W., as Guardian of the Estates of M. D. B. and H. D. Now comes the defendant, H. R. W., as guardian of the estates of M. D. B. and H. B., respectively, and for his answer as such guardian, says that he is the duly appointed, qualified and acting guardian of the said M. D. B. and H. B.; that he admits the allegation in the petition respecting the several interests of his wards, respec- tively, in the premises described in the petition, and of which parti- tion is therein sought, and that as such guardian he consents to the partition of said premises according to the tenor of said petition, and asks the court to protect his interest and the interests of his said wards therein. , As Guardian of the Estates of M. D. B. and H. B. (Answer should be verified). No. 261. Waiver of summons and entry of appearance. Court of Common Pleas, — County Ohio. (Same caption as in petition.) We, the undersigned, defendants in the above entitled action, hereby waive the issuing and service of summons upon us and voluntarily enter our appearance therein as such defendants, and 421 FORMS we hereby consent to the partition of the real estate as prayed for in plaintiff's petition. C. W., I. W., H. R. W., as Guardian of the Estates of M. D. B. and H. B. C. W. B., F. W., K. S. B., - E. L. B., F. R. and F. H., As Trustees and Executors under the last will and testament, trust disposition and settlement of H* B. R., deceased. T. R., R. D. J. M. A. No. 262. Answer of the defendant, K. L. B., widow. Court of Common Pleas, County, Ohio. (Same caption as in petition.) Answer of the Defendant, K. L. B., Widow, Setting up Dowee. Now comes the defendant K. L. B. and for her answer to the petition herein, says that she is the widow of the said W. W. B., deceased, and as such widow is entitled to dower, as mlly set forth and described in said petition, in the said undivided part of the said premises described in the petition, owned by said W. W. B., deceased, the fee simple of which interest descended to, and is now owned by the minor defendants, M. D. B. and H. B., share and share alike as the only heirs at law of the said W. W. 3., deceased, all of which facts are fully set forth in the petition. This answering defendant further says that in the event said premises cannot be partitioned and divided as prayed for in the peti- tion, she hereby waives the assignment of dower to her in said premises by metes and bounds and asks to have said premises scld free of her said dower, and to have paid her in lieu thereof such sum of money out of the proceeds of the sale of said premises as the court deems a just and reasonable value of her interest therein; and for the purpose of ascertaining the true and correct value of her said dower interest in the proceeds realized from the sale of said premises, this answering defendant avers that she was years of age on the day of , 19 (Answer should be verified). MERWINE ON REAL ACTIONS. 422 No. 263. Motion for appc"::tinc^t cl guardians ad litem. Court of Common Pleas, County, Ohio. (Same caption as in petition.) Motion. Now comes the plaintiff by H. E. B. and Q. R. L., her attorneys, and moves the court for an order appointing a guardian ad litem for the minor defendants, M. D. B. and H. B., infants aged 14 and 12 years, respectively, and represents to the court that said infant de- fendants have been regularly served with summons herein. Plaintiff further suggests W. G. B. as such guardian ad litem. H. E. B. & Q. R. L., Attorneys for Plaintiff. No. 264. Order appointing guardian ad litem. Court of Common Pleas, County Ohio. (Same caption as in petition.) Order Appointing Guardian ad Litem. This cause coming on this day to be heard upon the motion of plaintiff for an order appointing a guardian ad litem for the minor defendants, M. D. B. and H. B., upon consideration whereof the court being fully advised in the premises finds that said motion is well taken and does sustain the same. Wherefore, it is ordered by the court that W. G. B. be appointed, and he hereby is appointed guardian ad litem for said minor defend- ants, M. D. B. and H. B. Thereupon came said W. G. B. and accepted said appointment. No. 265. 'Answer of guardian ad litem. Coubt of Common Pleas, — County, Ohio. (Same caption a^ in petition.) A.NSWKR OK W. G. B., AS GUABDIAN AD LITEM. .sow comes W. G. B., heretofore appointed guardian ad litem herein for r he minor defendants M. D. B. and H. B., and for answer herein denes each and every allegation contained in said petition, and further says that said infants are of tender years and ignorant of their rights herein, wherefore he requests the court to protect their interests described in the petition. \V. G. B., As Guardian ad litem for M. D. B. and H. B. 423 FORMS No. 266. Decree of partition. Court of Common Pleas, County, Ohio. (Same caption as in petition.) Decree or Partition. This cause having been regularly placed on the trial docket of this term and set for trial this day, and now coming on to ba heard upon petition, separate answers of each of the following defend- ants, K. L. B., H. R. W., as guardian of the estates of M. D. B. and H. B., the exhibits and the evidence, and the court being fully advised in the premises finds that all of the defendants had due legal notice of the pendency and prayer of the petition, and are regularly in court as defendants to this action; that the defendants M. D. B. and H. B., minors aged 14 and 12 years respectively, have been duly and regularly served with summons herein; that all the remaining defendants have waived the service of summons upon them and entered their appearance herein and consented to the partition of the real estate as prayed for in plaintiff's petition. The court further finds that the facts and allegations contained in said petition and in said separate answer of said K. L. .B. are true; that the plaintiff is entitled to the relief therein sought; that plaintiff and the defendants hereinafter named are tenants in common in the real estate described in said petition; that the plaintiff E. G. G. has a legal right to and is seized in fee simple of an undivided part of the real estate described in said petition; that the follow- ing named defendants are tenants in common with the plaintiff in said premises, in the following proportions, to-wit: That the defendants M. D. B. and H. B. each have a lsgal right to and are seized in fee simple of an undivided ■ part of said real estate, subject, how- ever, tc the dower interest of their mother, the defendant K. L. B., in their said respective parts and portions; that the defendant E. L. B. has a legal right to and is seized in fee simple of an undivided part of said real estate, as the only heir of said H. L. B., deceased; that the defendants T. R. and F. H. as trustees and executors under the last will and testament, trust disposition and settlement, of H. B. R., deceased, have a legal right to, and are seized in fee simple of an undivided part of said real estate; that the defendants C. W. B., F. W., C. W., and I. W. each have a legal right to and are seized in fee simple of an undivided part of said real estate, as devisees und?r the last will and testament of L T. W., deceased, and the defendant R. D. J. M. A. has a legal right to and is seized in fee simple of an undivided part of said real estate under and by virtue of the provisions of said last will and testament of said F. B. M. A., deceased. The court further finds that said trust heretofore existing with reference to the title of said real estate, as fully set forth and described in the petition should be terminated; that the title to said premises be quieted and confirmed in the persons and in the proportions here- MERWINE ON REAL ACTIONS. 424 inabove mentioned; and that the plaintiff is entitled to have partition in said premises made as prayed for in her said petition. The court further finds that the defendant K. L. B. has filed her answer herein, setting forth that in case said premises cannot be partitioned as prayed for in said petition, she waives the assign- ment of dower to her in said premises by metes and bounds, and asks the court that the same may be sold free of dower, and to have paid her in lieu thereof such sums of money out of the proceeds of the sale of said premises as she is legally entitled to. It is therefore ordered, adjudged and decreed that partition of said premises described in the petition be made in favor of all parties in interest and that G. H., L. D. B. and F. C. M., three judicious and disinterested freeholders of this county, and not of kin to any of the parties entitled hereto, are hereby appointed commissioners to make said partition. It is further ordered that if in the opinion of said commissioners, said premises cannot be divided by metes and bounds without injury to the value thereof, no dower be assigned to said K. L. B., and that said premises be appraised free of said dower; that a writ of parti- tion issue to the sheriff of County, Ohio, commanding him that by the oaths of the commissioners hereinabove named, he cause to be set off and divided to each of the above named parties, tenants in common, the parts and portions of said premises to which they are hereinabove severally found entitled, and also to cause to be set off and assigned to her dower of said defendant K. L. B., and that said sheriff make due return of his proceedings under said writ. No. 267. Writ of partition directed to the sheriff by the clerk. Court of Common Pleas, County, Ohio. (Same caption as in petition.) Writ of Partition. State of Ohio, County, ss.: To the Sheriff of said County, Greeting: Vv'e command you that without delay by the oaths of G. H., L. D. B. and F. C. M. you cause to be set off and assigned to K. L. B„ as widow of W. W. B., deceased, as and for her dower estate interest therein one full and equal part of the real estate hereinafter de- scribed to be taken out of the part and portion thereof hereinafter ordered to be set off and assigned to the defendants M. D. B. and H. B., children of said W. W. B., deceased, and that, in like manner, by t!k' oaths of the same men you cause partition to be made of the me lands, situated in the City of , in the County of — and in the State of Ohio, to-wit: (Here follows description of real estate). Said partition is to be made subject to said dower estate of said K. L. B., as above mentioned among the persons named herein, and 425 FORMS. in the following proportions, to-wit: to the plaintiff E. S. G., the part thereof; to the defendant M. D. B., the part thereof; to the defendant H. B. the part thereof; to the defendant T. R. and F. H., as trustees and executors under the last will and testament, trust disposition and settlement of H. B. R., deceased, the part thereof; to the defendant L. W., the part thereof; to the defendant I. W., the part thereof; and to the defendant R. D. J. M. A., the part thereof. If, however, it is the opinion of said commissioners that said premises cannot be divided by metes and bounds without manifest injury to the value thereof, you will then cause said commissioners to appraise said premises free and clear of the dower estate of the said K. L. B. This writ issues in pursuance of an order lately made in our Court of Common Pleas within and for the said County of * in a certain action for partition, wherein the said E. S. G. is plaintiff and the said M. D. B. and others are defendants, and numbered on the docket of said court . Of your proceedings in the premises hereunder you shall distinctly certify under your hand to our said court forthwith. Witness my hand and the seal of said Court of Common Pleas at the court house in , this day of November, A. D. 19 . , Clerk, L. S. By 1 Deputy. No. 268. Commissioner's report. Court of Common Pleas, County, Ohio. (Same caption as in petition.) Commissioner's Report. According to the command of the writ of partition in this case issued and on the call of the sheriff of said county, we, the under- signed commissioners, after being first duly sworn and upon actual view of the premises, we are of opinion that the said lands cannot bo divided without manifest injury, and we do estimate the value of the same at the sum of dollars, ($ ), free and clear of all dower estate therein. Given under our hands this day of . A. D. 19 . G. H., L. D. B., F. C. M.. Commissioners. No. 269. Sheriff's return of his proceedings under the writ. Sheriff's Return. As commanded by the foregoing writ of partition I have executed the same by the oaths of G. H., L. F. B. and F. C. M., and said MERWINE ON REAL ACTIONS. 426 commissioners being of the opinion that said premises cannot be divided without manifest injury, I have caused the same to be ap- praised; all of which will appear by the report of the commissioners herewith returned. Given under my hand on this day of , 19 . No. 270. Election of plaintiff to take the real estate at the appraisement. Court of Common Pleas, County, Ohio. (Same caption as in petition.) Election ok Plaintiff to Take the Real Estate at the Appraise- ment. Now comes the plaintiff, E. S. G., one of the tenants in common and a person interested in the real estate described in the petition and hereby elects to take said premises described in the petition at the appraised value thereof, to-wit: dollars ($ ), and asks the court to award the same to her. E. S. G. No. 271. Entry confirming sale, order of deed and distri- bution. Court of Common Pleas. County, Ohio. (Same caption as in petition.) Entry Confirming Sale, Order of Deed and Distribution. This cause .oming on this day to be heard further upon return of the sheriff, and the report of the commissioners heretofore appointed herein, and on the motion to confirm the same, and it appearing from said report that said estate could not be divided by metes and bounds without injury to the value thereof, and that said commissioners have made and returned their appraisement of said estate at dollars ($ ) ? free and clear of all dower interest therein, and the court being fully advised in the premises find said return, appraise- ment and the proceedings under said writ of partition to be in all respects correct, and in conformity to law, and former orders of this court, and does, therefore, approve and confirm the same. And it further appearing to the court that the said plaintiff, E. S. G., has elected to take said premises at their appraised value, to-wit: at dollars ($ ). And it further appearing that said E. S. G. is one of the tenants in common and interested in said premises and authorized by the statutes to so elect, the court, on good cause shown, directs and requires that said sum be paid in cash, and that upon said E. S. G. paying the same into court, the said premises and the estate be, and hereby are, adjudged 427 FORMS. to her, and the sheriff is ordered thereupon to make and execute to her a good and sufficient deed in fee simple therefor. And the court coming now to distribute the proceeds of said estate and sale, amounting to the sum of dollars ($ ), it is ordered that out of said sum the sheriff pay First. To , as clerk of the Court of Common Pleas, County, Ohio, the cost of this action, taxed at $ . Second. To K. L. B., the sum of $ , being the full and just value of her dower interest in said premises. Third. To E. L. B., the sum of $ , being in full payment of her distributive share of said premises. Fourth. To H. R. W., as guardian of M. D. B., the sum of $ , in full payment of the distributive share of said M. D. B. Fifth. To H. R. W., as guardian of H. B., the sum of $ , in full payment of the distributive share of said H. B. Sixth. To T. R. and F. H.. as trustees and executors under the last will and testament, trust disposition and settlement of H. B. R., de- ceased, or of H. R. W., their attorney in fact, the sum of $ , in full payment of their distributive share herein. Seventh. To C. W. B., the sum of $ , in full payment of his distributive share herein. Eighth. To C. W., the sum of $ , in full payment of her dis- tributive share herein. Ninth. To I. W., the sum of $ , in full payment of her dis- tributive share herein. Tenth. To R. D. J. M. A. or H. R. W., as his attorney in fact, the sum of $ , in full payment of his distributive share herein. Eleventh. To F. W., the sum of $ , in full payment of his distributive share herein. Twelfth. To E. S. G., the sum of $ , in full payment of her distributive share herein. No. 272. Sheriff's deed in partition. To all Persons to Whom These Presents Shall Come, Greeting: Whereas. On the day of , A. D. 19 , E. S. G.. as plaintiff, filed her certain petition, and then and there commenced a civil action in the Court of Common Pleas, County, Ohio, against M. D. B. and others, and numbered on the docket of said court as case number , demanding partition of certain real estate hereinafter described; and Whereas, Such proceedings were had upon said petition, that the commissioners appointed by said court to make partition of said real estate made report that partition of the same could not be made with- out manifest injury, and that the value thereof was $— -; and Whereas, at the term of said court, in said year, 10 , the said report of said commissioners was approved and confirmed by said court, and thereupon came the said plaintiff. E. S. G., and elect ed to take said real estate at the value fixed by said commissioners, to-wit: MERWINE ON REAL ACTIONS. 428 the sum of $ • Whereupon the said court ordered that on the payment by said E. S. G. of said sum of $ into court, said premises be adjudged to her, and further ordered the sheriff of said county to execute a deed in fee simple for the same to said E. S. G.. all of which will more fully appear, reference being had to the records of said court. Now Therefore I, , sheriff of said County, Ohio, in consideration of the premises, and by virtue of the powers in me vested by law, do by these presents grant, bargain, sell and convey unto the said E. S. G. and to her heirs and assigns forever, the following described real estate so adjudged as aforesaid to said E. S. G., situated in the County of , in the State of Ohio and in , to-wit: (Here insert description of real estate). To Have and to Hold the premises aforesaid unto the said E. S. G., her heirs and assigns forever as fully and completely as I, the said sheriff of said County, Ohio, by virtue of said order and judgment of said court and of the statute made and provided for such cases, might or should convey the same. In Testimony Whereof, I hereunto set my hand this day of , 19 . Signed and acknowledged by in the presence of , as sheriff of County, Ohio. The State of Ohio, County, ss.: Personally appeared before me, a notary public within and for said county, the above named , as sheriff of County, Ohio, the grantor in the above deed of conveyance, who acknowledged the signing of the same to be his voluntary act and deed for the uses and purposes therein mentioned. In Witness Whereof, I have hereunto set my hand and seal this day of , A. D. 19 . , Notary Public, County, Ohio. No. 273. Writ of partition where the property can not be divided and is sold. State of Ohio, County, ss.: To the Sheriff of said County, Greeting: We command you that without delay, by the oaths of , and , you cause partition to be made of the following described premises, situate in the county of and State afore- said, to-wit: (Here describe real estate). Among the persons named herein, and in the following portions, to-wit: To P art - To part. To P art - 429 FORMS. To I ,art - To I )ait - To uart - And if, in the opinion of the said commissioners, said premises can not be divided by metes and bounds without manifest injury to the value thereof, you cause them to appraise the same, in pursuance of an order lately made in our Court of Common Pleas within and for said County of , in a certain petition for parti- tion wherein the said is plaintiff, and the said are defendants, and that your proceedings in the premises you distinctly certify, under your hand, to our said court forthwith. Witness my hand and seal of said Court of Common Pleas at the court house in , this day of , 19 . Clerk. No. 274. Sheriff's return of his proceedings under the writ. As commanded by the foregoing writ of partition, I have executed the same by the oaths of , and , causing said partition to be made of the premises in this writ described, and the said commissioners being of the opinion that the said premises can not be divided without manifest injury, I have caused the same to be ap- praised, all of which will appear by the report of the commissioners herewith returned. Given under my hand this day of , 19 • Sheriff. No. 275. Commissioner's report of their proceedings under the writ. ; plaintiff, Court of Common Pleas, vs County, Ohio. , Defendants. In Partition. According to the command of the writ of partition in this case issued, and on the call of the sheriff of said county, we, the undersigned commissioners, after being first duly sworn and after actual view of the premises, do make partition to the said part. To the said - - To the said • -. To the said ■ To the said And upon actual view of the premises, we are of the opinion that the said lands can not be divided without manifest injury. And we do estimate the value of the same at $ • Given under our hands this day of , 19 . Commissioners. MERWINE ON REAL ACTIONS 430 No. 276. Order of sale in partition — Legal notice — Publica- tion and sheriff's return. State of Ohio, County, ss.: To the Sheriff of said County, Greeting: In pursuance of an order of our Court of Common Pleas within and for the County of , at the term, one thousand nine hundred and , in a certain petition for partition now pending in said court, wherein is petitioner and are respond- ents, we command you that, without delay, you proceed to sell at pub- lic auction, the lands and tenements in said petition described, to-wit: (Here describe real estate). Appraised at $ . Free of dower, and that your proceedings in the premises you make known to our said Court of Common Pleas at their next term, and have you then and there this writ. Witness my hand and the seal of said court at this day of , 19 • " Clerk. Plaintiff, vs. Defendants. No. In pursuance of an order of sale in partition from said court to me directed, I will offer for sale, at public auction, at the door of the court house in the City of , Ohio, on the day of , 19 ( at o'clock — m., the following described real estate situate in the County of , in the State of Ohio and in the City of t and bounded and described as follows, to-wit: (Here insert description of real estate). Said property is located and known as No. ; Street, , Ohio. Appraised at $ Terms of sale, cash. • Sheriff of County, Ohio. State of Ohio, County, ss.: cashier of The , a newspaper published at , County, Ohio, personally appeared and made oath that the attached printed advertisement was published for consecutive weeks from and after , 19 , and that said paper is of general circulation in said county and State. Subscribed and sworn to before me on this day of 19 • Notary Public. County, Ohio. As commanded by this writ, T have caused the lands and tenements herein described to be duly advertised for days next preceding 431 FORMS. the day of sale, in The , a newspaper printed and of general circulation in County, Ohio, on the day of , 19 , at o'clock — m., on said day at the court house in said county, and offered for sale at public auction the lands and tenements described in this writ. Said sum being more than two-thirds the appraised value, and being the highest and best bidder, he, , was declared the purchaser thereof. . Sheriff of County, Ohio. No. 277. Petition for partition when advancements have been made. B. c, Plaintiff, vs. No. . J. G. S., and The Company, Defendants. Petition. Plaintiff says that C. S., of the City of , County, Ohio, was, in her lifetime, seized in fee simple and possessed of the following described real estate: (Here insert description of real estate). The said C. S. being so seized of the above described real estate, died on the day of , 19 , intestate, leaving the de- fendant, J. G. S., and this plaintiff, her only children and heirs at law, and leaving a husband, relict, M. S., who died on the day of , 19 . There are no debts of the estate of the said C. S., deceased, and she left no personal estate except a few articles of household goods and apparel, which were evenly divided between the said children at her death. By the death of the said C. S., this plaintiff and the defendant, J. G. S., became seized in fee as tenants in common by descent from the said C. S., deceased, of the above described property, subject to the interest of their father, M. S., therein, which expired with his death as aforesaid. Plaintiff further avers that during her lifetime, to-wit: on the day of , 19 , the said C. S. made an advancement to the said defendant, J. G. S., of certain real estate, to-wit: (Here insert description of the same), and of the value of dollars, and in the partition of the premises of which said C. S. died seized as aforesaid, the said J. G. S. should be charged with said advancement of the said lots so conveyed to him as an advancement as aforesaid la- the said C. S., deceased, and the value thereof deducted from b:s dis- tributive interest in the whole estate. On the day of , 19 , plaintiff and defendant. J. G. S., borrowed of the defendant, The Company, the sum of dollars, and to secure the payment thereof executed and delivered to MERWINE ON REAL ACTIONS. 432 said company their mortgage on said real estate for the sum of dollars, said money being required to discharge certain assessments for the improvements on said premises so left by said C. S., deceased, but of which dollars was taken and used by the defendant, J. G. S., and no part thereof applied to pay and discharge said assess- ments for the improvements on the property of which said C. S. died seized as aforesaid. There remains due and unpaid of said mortgage indebtedness the sum of about dollars, of which dollars should be first charged back to the part of said premises as may be apportioned to the said J. G. S. by reason of the appropriation thereof by him as aforesaid, and the balance apportioned to the respective share of the plaintiff, and the said defendant, J. G. S., as equity may require and as the same may be ascertained, subject to the said advancement to the defendant, J. G. S., as aforesaid. The said premises, of which said C. S. died seized, as aforesaid described, descended in equal shares, part thereof to this plaintiff, and part thereof to the defendant, J. G. S., subject, however, to the said advancement so made to the said J. G. S. The plaintiff desires to have h interest in said premises, of which said C. S. died seized as aforesaid, set off to her in severalty, and she, therefore, prays that the said advancement of said real estate so made by the said C. S. to the said defendant, J. G. S., be taken into account in arriving at the respective interest of the plaintiff, and the defendant, J. G. S., in the said real estate of which the said C. S. died seized, as aforesaid, and that the same may be partitioned ac- cordingly, or if the same can not be partitioned by metes and bounds without manifest injury, then that such proceedings be had as are au- thorized by law; that of said mortgage indebtedness the said defend- ant, J. G. S., be required to assume and discharge exclusively the said dollars thereof, so, as aforesaid, taken and used for his own benefit; that the said The Company be made a party defendant herein, and required to set up its said mortgage claim so that the same may be properly adjusted and protected, and for all proper and equitable relief. , Attorneys for Plaintiff. Petition should be verified. No. 278. Petition in partition — An accounting for rents and profits. Court of Common Pleas, County, Ohio. Petition fob Partition. M. T. H., Plaintiff. vs. No. . R. T. H., Defendant. Your netitioner, M. T. H., of County, State of Ohio, alleges that he, together with the said R. T. H., who resides in County, Ohio, is seized of an estate as tenants in common, in the 433 FORMS. following described real estate, situate in the County of , State of Ohio, and in the of , and bounded and described as follows, to-wit: (Here insert description of premises). ' Plaintiff further alleges that he and the defendant hold the premises in the following proportions, to-wit: Said plaintiff is the owner in fee simple of the undivided thereof, and the said defendant is the owner in fee simple of the undivided thereof. Plaintiff further says that since he and the defendant have owned the said premises above described in common, to-wit: since the day of t 18 , the defendant, R. T. H., has received all the rents and profits arising therefrom; that plaintiff has paid all the taxes, insurance, repairs, and improvements on said premises, and has paid' certain incumbrances, the exact amount of which plaintiff is unable to state, and plaintiff can not state the exact amount of the rents and profits so received by said R. T. H. Plaintiff is desirous of holding his interest in said premises in severalty, and therefore prays that his interest may be set off to him, and' if the same can not be done without manifest injury, then that the premises be sold or other order taken pursuant to the statute in such case made and provided, and that an accounting be made of the rents and profits of said premises, the taxes, insurance, repairs and improvements and encumbrances paid by plaintiff up to the date when the partition shall be made; that the same may be declared to be a lien on the premises in favor of the plaintiff and for further and proper relief. — ' Attorney for Plaintiff. The petition should be verified. No. 279. Petition for equitable partition— Advancements. B. C, Plaintiff, No. • vs. J. G. S., and The Company, Defendants. Petition. 1. First cause of action. 0n the day of ■, 19 , J- B., late of — Countv Ohio, hereinafter designated decedent, died intestate. Plain- tiff and said J. B., J. B. B. and T. B., are his children and only heirs at law, and the defendant, H. B., is decedent's duly appointed, qualified and acting administrator. Said decedent died seized in fee simple of the following lands and tenements situate in said county, and described as follows, to-wit: (Here give description of same). Decedent left personalty to th e amou nt of about $ . His debts amounted to the sum of $ • MERWINE ON REAL ACTIONS. 434 Decedent, in his lifetime, advanced to his son, J. B., toward and as a part of his distributive share of decedent's estate, the following real estate in the county aforesaid and described as follows: (Give description here), and the deed of conveyance to said J. B., specified said real estate to be of the value of $ . In like manner decedent, in his lifetime, advanced to the said J. B. B. as his part of his distributive share of decedent's estate, the following described real estate, to-wit: (Give description here) and the deed of conveyance to the said J. B. B. specified said real estate to be of the value of $ . In like manner decedent, in his lifetime, advanced to the said T. B., as his part of his distributive share of decedent's estate, the sum of $ , in money, and the said T. B. received said money as and for such advancement. 2. Second cause of action. Ever since decedent's death, the defendants, J. B. and J. B. B. and T. B., have been in the use and enjoyment, and have received all the rents, issues and profits of the real estate first herein described. The fair annual rental value of said real estate first herein described is of the value of $ . Wherefore, plaintiff prays judgment against said defendants, J. B., J. B. B. and T. B. for the value of said rents from the day °f . 19 , at the rate of § , per annum; that said real estate so advanced to said defendants and the personalty so advanced to defendant, T. B. and the fund now in the hands of said defendant, administrator, be brought into hotchpot so that a just and equal division in partition may be made of the real estate first herein described among the plaintiffs, the said J. B., J. B. B. and T. B.; that from said lands, the value of $ there be deducted from the one-fourth part of said J. B.'s share, $ be deducted from the part of the share of the said J. B. B.; that the said T. B. be charged with the sum of $ against his distributive share of the personalty of decedent, and if his share be more than his distributive portion thereof the residue be deducted from his said part of said land to be partitioned; that the court cause to be parti- tioned the real estate first herein described to plaintiff and to and among the said J. B., J. B. B. and T. B. in view of said advance- ments and in accordance with their respective rights, regard being had thereto, and if partition can not be made that said real estate may be sold and that plaintiff may have such other and further relief as equity and the nature of the case may require. The petition should be verified. (Note: For form of petition by life tenant against his co-devisees who are life tenants, see Whitaker's Code Forms, Vol. 1, p. 541, which is adapted from Hieatt v. Black, 14 C. C. 194. In this last case it was held that the petition stated a cause of action). 435 FORMS. No. 280. Petition for partition by guardian. Court of Common Pleas, County, Omo. L. B. M., as Guardian of J. M. F., an infant, Plaintiff, No - • G. D. F., J. H. F., B. T. F., and H. R. H., Defendants. Petition. Plaintiff says that on the day of , 19 . she was duly appointed guardian of the person and estate of J- M. F., an infant, by the Probate Court of County, Ohio, and there- upon duly qualified and entered upon the discharge of the duties of her office, and that this action is brought by her as such guardian. Plaintiff says that her said ward is a grandchild of J. H. F., late oi - County, Ohio, deceased, who died intestate on the day of f 19 ; that the last will and testament of said J. H. F., deceased, was duly proved in the Probate Court of said County, where the said decedent was domiciled at the time of his death, and was duly admitted to probate and record on the day f , 19 . A copy of said will is hereto at- tached marked exhibit "A" and made a part of this petition; that said decedent by the terms of his last will and testament devised all of his property, both real and personal, to his wife, M. J. F., for ?nd during her natural life, with remainder after her death to be divided equally among his children, the defendants herein, and his — andchild J. W. F., daughter of his deceased son, W. J. F., being plaintiff's said ward herein, the said J. M. F. being one and the same person named and designated by said J. H. F., deceased, in his last will and testament, as "A. J., my grandchild and daughter of my deceased son W. J. F." The -aid M J. F. was duly appointed and qualified as executrix of the last will and testament of said J. H. F., deceased on the dav of 19 and continued to act as such execu- trix until the day of - - 19- -. at which time she died testate, leaving plaintiff's said ward and the defendants herein named as her next of kin and the only heirs at law. The last will and testament of said M. F. J., deceased, was duly proved in the Probate Court of • County. Ohio, where the said decedent was domiciled at the time of her deat h, and w aa duly admitted to probate and record on the - - day of , . a , ,-r, vol na«-e of the will records of said being recorded in Vol. . pa^e u county. Said decedent made no disposition ot am leal estate in her last will and testament. ,„,„*,- t hP The defendant G. D. F. was duly appointed and qualified m the Probate Court of County on the day of MERWINE ON REAL ACTIONS. 436 19 f as administrator with the will annexed of said M. J. F.'s estate and is now acting as such. All of the debts and claims against the estate of said J. H. and M. J. F. have been fully paid. The said J. H. F. died seized in fee of the first and second parcels, and that he and the said M. J. F. each, respectively, died seized in fee of the undivided half of the third parcel of the real estate hereinafter described. Plaintiff's said ward, J. M. F., and the defendants herein named, are all the heirs at law and the devisees of the said M. J. F., de- ceased, and as such devisees and heirs at law, respectively, they are seized of the estate in fee as tenants in common of the following described real estate of which said J. H. and M. J. F. died seized, as above stated, and all of which is situate in the City of , County of in the State of Ohio, and described as follows, to-wit: (Here insert description of real estate). The said J. M. F. and the said defendants G. D., J. H., B. T. F. and H. R. H. are entitled each to an undivided part of said real estate. Wherefore, plaintiff as guardian as aforesaid, prays that her said ward's interest in said premises may be set off to her in severalty; that partition may be made of all real estate among the several parties in the proportion above stated, and if that cannot be done without manifest injury, that such proceedings be had as are au- thorized by law, and for all other necessary and proper relief. Attorneys for Plaintiff. The petition should be verified. See form No. . No. 281. Answer in partition. Court of Common Pleas, County, Ohio. L. B. Mi, as Guardian of J. M. F., an infant, Plaintiff, vs. No. ■• G. D. F., J. H. F., B. T. F., and H. R. H., Defendants. Answer in Partition. Now comes W. H. W., one of the defendants above named, and for his answer herein, says that he admits that on the day of , 18 , the said W. W. died testate, whose last will and testament was duly filed and probated in the Probate Court of County, Ohio, and recorded in Vol. , page of the Will records of said County, and that a duly certified copy of said will is attached to the petition herein, marked Exhibit A, and made a part thereof, for all purposes. Said defendant admits that said W. W. died leaving surviving him 437 FORMS. C. W. his widow, since deceased, and the following named children: the plaintiff herein, C. P. W.; and the defendants F. C. W., H. L. W., M. E. M. (nee W.), W. H. W and G. M. W. Said defendant further admits that the said W. W. died seized in fee simple of the following real estate, to-wit: (Here describe it). Said defendant further admits that said real estate was, under the said last will and testament devised to the said C. W., C. P. W., H. L. W., F. G. W., M. E. M., W. H. W. and G. M. W. Said defendant further admits that the said C. W., widow of the said W. W., has since deceased; that the said G. M. W. has since deceased, without children, leaving the said M. W., his widow aged years. Said defendant denies that the said real estate set forth in said petition and hereinabove described is owned as tenants in common by the plaintiff and the defendants in the following proportions, to-wit: M. W., widow of G. M. W., a life estate in the undivided part thereof; C. P. W., the undivided part thereof; F. G. W., the undivided part thereof; H. L. W., the undivided part thereof; and W. H. W., the undivided part thereof, and all of said estates and interests, being subject to the life estate of the said M. \\\, widow of G. M. W., in the undivided part thereof. Said defendant further admits that all the debts and claims against the estate of said W. W., deceased, have long since been paid. For a further answer herein, said defendant says, that the said W. W. died seized in fee simple in addition to the property described and set forth in the petition herein of (Here give description of the same) ; that on the day of , IS , the defendants herein, F. G. W., H. L. W., M. E. M., W. H. W. and G. M. W. con- veyed and transferred by proper deed to the plaintiff herein said real estate with an agreement and understanding between said defend- ants and the said plaintiff that at the time of the sale of the other property, of which the said W. "W. died seized in fee simple, and at the settlement of his said estate, the value of said real estate at the time of said conveyance to the said C. P. W. was to be deducted from the distributive share of the said C. P. W. in the said estate of the said W. W., and to F. G. W., H. L. W., M. E., M. W., and W. H. W. Said defendant further says that at the time of the conveyance of the said real estate to said C. P. W., plaintiff herein as aforesaid, the reasonable and fair value of the same was the sum of $ . Defendant further says that the said real estate set ' forth in said petition is now owned in tenancy in common by the plaintiff and the defendants herein in the following proportions: M. W., widow of G. M. W., the life estate in the undivided part thereof, and the part of the dollars due from plaintiff herein to the defend- ants herein on account of the conveyance of said lot as aforesaid; C. P. W., the plaintiff herein an undivided part herein, subject to the payment of dollars to the defendants herein on account of the conveyance of said lot as aforesaid; F. G. W., an undivided SI ER WINE ON REAL ACTIONS. 438 part thereof, and a ■ interest in the said sum of dollars c:i account of said conveyance of said lot as aforesaid; H. L. W., an undivided part thereof, and a — — interest in the said sum of dollars on account of the conveyance of said lot as aforesaid; said W. H. W., an undivided part thereof, and a interest in the said sum of dollars on account of the said conveyance of said lot as aforesaid, all of said estates and interests being subject to the life estate of the said M. W., widow of the said G. W. W. of an undivided part thereof. For a further answer herein said defendant says that he desires to hold his said estate and interest in said premises in severalty, and to have partition made of said premises according to law. Wherefore said defendant prays that partition of the said premises may be had according to law; that if it shall appear that partition cannot be made without manifest injury to the value thereof, then that said premises be sold and other orders taken pursuant to the statute in such case made and provided, and that a distribution may be made of the proceeds of such sale according to the rights and interest of the defendant herein, as set forth herein, and of the several parties herein, and that he may have all other and further proper orders, judgments, decrees, relief and protection in the premises. Attorney for W. H. W. The answer should be verified. No. 282. Cross-petition of defendant setting up a mortgage claim on real estate sought to be partitioned. Court of Common Pleas, County, Ohio. L.. B. M., as Guardian of J. M. P., an infant, Plaintiff, vs - No. , G. D. F., J. H. F., B. T. F., and H. R. H., Defendants. Cross-Petition. 1. First cause of action. Now comes the defendant L. R. and files herein her cross-petition, and says that said decedent C. W., and her estate, is indebted to her upon a promissory note of which the following is a true and correct copy, to-wit: (Here describe note). There are no endorsements on said note and no payments have been made on the same, and there is owing on said note to this defendant the sum of - — dollars with interest from the day of — , 19 , at the rate of per cent, per annum, which she claims. 439 FORMS. 19 2. Second cause of action. This defendant further says that on the - - day of -, the said defendants M. E. M., M. W., F. G. W., H. L. W. and plaintiff, C. P. W., together with said C. W., deceased, in order to secure the payment of the note aforesaid, duly executed, acknowledged and delivered to this defendant their certain mortgage deed and thereby their proportionate parts of the premises in the petition described were conveyed to this defendant, her heirs and assigns forever, and on the da y of . 19 , at o'clock of said day, said mortgage was duly filed for record and thereafter the same was duly recorded in Vol. , page of mortgage records of said — County, Ohio. There is unpaid on said indebtedness the sum of $ , principal. and interest at the rate of per cent, per annum from the ■ day of , A. D. 19 . ^Therefore the defendant prays the protection of the court for her said claim and lien, and that in the event of a sale of the said premises in the petition described, the proceeds may be applied to the satisfaction of her said claim and the lien, in the order of its proportion and priority, and that she may have all other and further proper and necessary orders, judgments, decrees, relief and protection in the premises as may be necessary and proper, and as the nature of the case may in equity require. Attorney for Defendant, L. R. Verified as in other pleadings. No. 283. Order for publication for unknown heirs or devisees of . Court of Common Pleas, — County, Ohio. L. B. M., as Guardian of J. M. F., an infant, Plaintiff, vs. No. . G. D. F., J. H. F., B. T. F., and H. R. H., , unknown heir of , deceased, Defendants. Order for Purification for Unknown Heirs or Devisees of . This cause came on to be heard and it being made to appear to the court by proper proof that the name and residence of the heir of , deceased, are unknown to the plaintiff, it is ordered that proceedings hereinafter may be had against him without naming him and that he may be served by publication herein, as in other cases of service by nublication, and r*esi£nvited as the unknown heir of , late of County and State of . deceased, MERWINE ON REAL ACTIONS. 440 "Which publication shall be made six consecutive weeks as in other cases. (Note: This order and the following notice is made under favor of R. S. § 5040 (Gen'l Code, § 11287), which recites: That when an heir or devisee of a deceased person is a necessary party, and it appears by affidavit that his name and residence are unknown to the plaintiff, proceedings against him may be had without naming him; and the court, or a judge thereof, shall make an order respecting the publi- cation of notice, but the order shall require not less than six weeks' publication). No. 284. Legal notice to unknown heirs. Court of Common Pleas, County, Ohio. L. B. M., as Guardian of J. M. F., an infant, Plaintiff, vs. No. . G. D. F., J. H. F., B. T. F., and H. R. H., , unknown heirs of , deceased, Defendants. Legal Notice to Unknown Heirs of . The heirs of , late of County and State of , whose names and places of residence are unknown, will take notice that on the day of , A. D. one thousand nine hundred and , , as plaintiff, commenced a civil action for parti- tion against them, and and , etc., as defendants in the Court of Common Pleas of County, Ohio, where the same is now pending, demanding partition of the following premises, situated in the said county and State: (Here insert description of real estate). The plaintiff demands partition of said premises as follows: (Here give the demand for partition, dower assignment, etc., as in the petition). You are required to answer the petition on the day of , A. D. 19 , or the same will be taken as confessed and judgment rendered and partition made accordingly. C. D., Plaintiff. No. 285. Form for legal notice — Sale of real estate in par- tition. Court of Common Pleas, County, Ohio. L. B. M., as Guardian of J. M. F., an infant, Plaintiff, vs. No. . G. D. F., J. H. F., B. T. F., and H. R. H., Defendants. In pursuance of an order of sale in partition from said court to me directed, I will offer for sale, at public auction, at the door 441 FORMS. of the court house, in the City of , County, Ohio, on the day of , A. D. 19 , at o'clock, a. m., the following described real estate in the County of , State of Ohio, and in the of , and more particularly described as follows: (Here insert description). Appraised at $ . The above property will be sold at the door of the court house by the sheriff for not less than two-thirds the appraised value thereof, free of dower. Terms of sale: Cash on day of sale. , Sheriff. No. 286. Form of certificate to probate court. Probate Court of County, Ohio. In re estate of , deceased. Statement of Assets, etc., to Procure Certificate to File in Proceeding in Partition. , as administrator of the estate of , deceased, now comes and represents to this court that the assets, indebtedness and expenses of the estate he represents are as follows, to-wit: Assets. (Here detail assets as cash, notes, bonds, etc., and all property out of which funds may be realized.) Debts. (Here insert detailed statement of debts.) Expenses. (Here insert detailed statement of expenses including costs of administration, etc.) Amount required dollars ($ ). A certificate is therefore asked of this court stating the amount necessary to pay said indebtedness in addition to the assets now in his hands, in order to present said certificate to the Court of Common Pleas, of County, Ohio, where partition is sought of the lands of the estate represented by , administrator. Sworn to before me and subscribed in my presence on this day of , 19 . MEKWINK ON REAL ACTIONS. 442 No. 287. Journal entry allowing above application. Probate Court of County, Ohio. In re estate of , deceased. Statement of Assets, etc., to Procure Certificate to File in Proceeding in Partition. Upon application of — as administrator of the estate of -, deceased, in due form of law as required by statute, asking this court for a certificate of indebtedness to be filed in certain pro- ceedings in the partition of the estate of , deceased, now pending in the Court of Common Pleas, - County, Ohio, and the same was submitted to the court, and the court upon due con- sideration thereof finds that $ will be necessary in addition to the assets now in the hands of said administrator to pay the debts of decedent and the expenses of administering said estate. It is therefore ordered that such certificate be issued from this court to said , as such administrator, for him to file in said partition proceedings in said Common Pleas Court aforesaid. No. 288. Certificate under previous order. Probate Court of County, Ohio. In re estate of , deceased. No. . Statement of Assets, etc.. to Procure Certificate to File in Proceeding in Partition. State of Ohio, County, ss.: I, , sole judge and ex officio clerk of the Probate Court of County, Ohio, do hereby certify, that the sum of $ , in addition to the assets now in the hands of said administrator will be necessary to pay the debts and expenses of said estate. In testimony whereof, I have hereunto set my hand and affixed the seal of said court at , this day of , A. D. 19 . . Probate Judge and ex officio Clerk. No. 289. Motion by administrator asking for fund from estate to pay debts of decedent. ■, Plaintiff, vs. , Defendants. Motion. Now comes , as administrator of the estate of , deceased, and having shown to the court herein the certificate from the Probate Court of - - County, Ohio, a copy of which is hereto attached and made a part of this motion, and moves the court for 443 FORMS. an order directing that out of the first monies arising from the sale in this case, an amount sufficient to pay the debts and expenses of administering the estate of , deceased, be paid him by the sheriff of said county. . As Administrator of the estate of , deceased. No. 290. Entry sustaining above motion. , Plaintiff. vs. , Defendants. Entry. This cause came on for hearing on the motion of , as ad- ministrator of the estate of , deceased, was argued by counsel and submitted to the court and upon due consideration whereof the court finds said motion well taken and sustains the same. It is therefore ordered that the sheriff out of the first monies coming into his hands from a sale of the premises in said partition proceedings, there be paid over to said , as administrator of the estate of , deceased, the sum of $ according to law. No. 291. Proof of publication. State of Ohio, County, ss.: , foreman of The , a newspaper published and printed in , County, Ohio, personally appeared and made oath that the attached printed advertisement was published six consecutive weeks in said newspaper from , 19 , and that said newspaper is of general circulation in said county. Subscribed and sworn to this day of , 19- Notary Public. County. Ohio. No. 292. Legal notice — Service by publication. and , a minor years of age, all residing at are hereby notified that on the day of , 19 , filed his petition in the Ccurt of Common Pleas. County, Ohio, in case No. against the above named parties and others, heirs of , deceased, praying for the partition of the following described real estate in the County of , in the State of Ohio, and in the City of , and more particularly described as follows, to-wit: (Here insert descrip- tion of the real estate). The said and , above named, • are heirs of the sa j,j _ and are each entitled to an undivided interest MERWIXE OX RE.\L ACTIONS. 444 in said lands, and desires to have his interest therein set off to him in severalty, or if that can not be done without manifest injury that such proceedings be had as are authorized by law. Said parties are required to answer on or before the day of , 19 . T. T. D. Attorney for Plaintiff. No. 293. Affidavit for service by publication. The State of Ohio, County, ss.: Personally appeared before me, , the plaintiff in the above action, being first duly sworn, says that service of summons cannot be made on the defendants, and , a minor years of age, and this cause is one of those mentioned in (R. S. § 5040) Gen'l Code § 11287. Sworn to before me by and subscribed by him in my presence, this day of , 19 . Notary Public, County, Ohio. No. 294. Report of commissioners assigning dower by metes and bounds, and awarding partition by metes and bounds. We. the undersigned commissioners, named in the writ hereto annexed, after being duly sworn, and upon actual view and careful examination of the premises described in said writ, do assign to the said , widow of said — , deceased, as and for her dower estate therein, so much of said premises as are comprised within the following boundaries, to-wit: (Here describe the real estate so as- signed as dower). We do also set off and assign to the defendant, , for his share of said real estate described in the petition, so much thereof as is comprised within the following boundaries, to-wit: (Here de- scribe the share in severalty) ; to the defendant — (Here de- scribe the share in severalty). No. 295. Form of writ where dower can not be assigned by metes and bounds. We, the undersigned commissioners, named in the writ hereto annexed, after being duly sworn, and upon actual view and careful inspection of said premises in said writ described, are of the opinion that said dower of said , widow of said , deceased, cannot be assigned to her by metes and bounds therein, and instead of assigning to her her dower by metes and bounds, we do assign to her, as and for her dower in and to the real estate described in the petition, the sum of $- , per year, for and during her natural life, and we do hereby make the payment thereof a charge upon said lands in whose hands soever the same may come. CHAPTER XL SALE OF REAL ESTATE BY RELIGIOUS AND OTHER KINDRED SOCIETIES. SECTIOX. 347. General discussion, 348. Religious society may peti- tion the court for sale of real estate used for ceme- tery purposes — Xotice by publication to be given — Procedure. 349. In what cases certain churches or church societies may sell lands. 350. The kind of notice given in such case and the order of the court therein. 351. Procedure for sale of real estate in certain cases af- ter certain church or- ganizations have consoli- dated. 352. How notice of the pendency of the petition in such case shall be given. 353. When and how real estate of certain extinct incorpo- rated religious societies may be sold. 354. Duties of trustees of extinct parishes and their duties as to moneys received from sale of real estate. 355. Who are to be made parties to proceedings for the sale of such real estate. SECTIOX. 356. Manner of sale and convey- ance of real estate of cer- tain consolidated religious societies — Who must be defendants in such ac- tions. 357. Publication of notice in such sales. 358. Manner in which churches generally may sell, ex- change or encumber real estate. 359. Kind of notice to be given when the sale of church property is asked of the court. 360. All sales, mortgages or ex- change of church prop- erty, sold by proceeding in court, to be confirmed by court. 361. When real estate giwn to certain charitable uses may be sold by order of court — Procedure in such cases. 362. Necessary parties to such proceeding — Partition of church property. Sec. 347. General discussion. Before attempting to convey real estate belonging to any religious society or denomination, it behooves the convey- ancer to examine the statute of the State on that subject. It 445 § 347 MERWINE ON REAL ACTIONS. 446 is a general proposition, good in this State, that the real estate of such society can be conveyed only by and under the orders of the court after such society has complied with the statute, by first filing its petition and giving the required notice, either by publication or by service of summons, as in other civil actions. 1 In one instance the trustees of a religious society, incorpo- rated under the statute, 2 were authorized by a special act of the Legislature 3 to convey by deed the real estate owned and held by it to a certain other religious society, and said trustees, by virtue of said act, by deed so conveyed said real estate. It was held that such deed, without an order of the court in compliance with the statutory procedure in such instances, is void and of no effect. 4 In all such cases where real estate is sold under statutory proceedings, there must be a substantial compliance with the statute to give purchasers title, and this is true whether the action be brought in the court of probate or chancery courts. 5 A careful reading of the following requirements of the law in the procedure required in sale of real estate belonging to certain religious and other similar societies discloses that the practitioner must exercise care in the selection of the statute under which he brings his action, and he must be sure to comply with each and every substantial requirement of the statute or purchasers at such sale will find themselves with- out title. With the forms as guides for the preparation of the plead- ings, notice by publication, service of summons and of orders of the court, the practice in such matters is easy. Each of the many provisions of the statute on this subject in this chapter, by proper use of said forms, can be easily met and complied with. As in other court deeds the deed in such case should recite all of the court proceedings authorizing the sale, ex- change or incumbrance of the real estate." 1 Sec § 2 and following section-. 5 Ellwood v. Northup, 107 N. Y. 2 Gen'] Code, $ 8<>53 (R. S. § 172. 3241'. e See No. 393, ct scq., for pro- 3 93 (i. I.. 4(12. oedure in such case from the filing 1 The South Kenton, etc., v. of the petition to and including deed Espy, 17 ('. ('. 524. said act being to purchaser. unconsi it ntional. 447 SALE OF REAL ESTATE BY SOCIETIES. § 343 Sec. 348. Religious society may petition the court for sale of real estate used ior cemetery purposes— Notice by publication to be given— Procedure. "When a religious or educational corporation society holds any land within the limits of any city or village which has been used as a cemetery, and interments in which have been prohibited by ordinance of such municipal corporation, the trustees, wardens, vestry, or other officers entrusted with the management of the property of such corporation or society may file a petition in the court of common pleas of the county where such property is situated, setting forth therein a de- scription of the property, the existence of such ordinance, and the names of all persons holding burial privileges in such cemetery, so far as known to them, and if such privileges are held by persons whose names are unknown to them, the facts as to the same are required to be stated, and asking that the value, if any, of such burial privileges shall be determined by the court, and the direction of the court as to the removal of the bodies interred in such cemetery to other cemeteries, and for an order to sell such property free from such burial privileges. Notice of the filing of such petition must be given by publication in some newspaper, printed and of general circulation in the county where it is filed, for four consecutive weeks, setting forth the object and prayer thereof, and that any person claiming any interest in the subject matter of the petition, or burial privileges in such cemetery, may appear and file an answer therein, within six weeks from the date of the first publication of such notice, and after which, such case shall stand for hearing; and if, upon a final hearing of the case, it shall be made to appear that such cemetery is as above described, the court will proceed, with or without the aid of a jury, as the parties appearing may elect, and hear and determine the value, if any, of such burial privileges, and order that the corporation or society shall pay any amount so ascertained to the holder of such privileges, and the court may order such cemetery property sold, free from such burial privileges, and may direct a subdivision of the same into lots for the purpose of sale, and direct the application of the money arising therefrom, to such uses of such corpora- tion or society, for pious or educational purposes, as the trus- tees, wardens, vestry or other officers conceive to be most for §§ 349, 350 MERWINE ON REAL ACTIONS. 448 the interest of the corporation or society to which the ceme- tery so sold belonged; but such sale cannot be made until the bodies interred therein are removed to other cemeteries, as directed by the court, on the final hearing of the case; pro- vided, that any holder of such burial privileges who may not have appeared in such proceeding, and who has not waived his right to receive compensation for same, may assert his right to receive from such society or corporation, compensa- tion therefor, within five years after the final entry of such proceeding. 7 Sec. 349. In what cases certain churches or church societies may sell lands. When the title of any real estate is vested in trustees for the use of churches, or congregations of churches, and, owing to the peculiar situation of such real estate, or the nature of the trust or conditions upon which it is held, it has not been for twenty years claimed by or appropriated to the use of churches or congregations, as originally contemplated, and such trustees are in doubt as to what disposition to make of such unappropriated church property, and when any public church site and meeting house has been abandoned by the public as a place of worship, and the trustees invested with the title of such property have sold the same, and are in doubt as to what disposition to make of the proceeds thereof, such trustees may file a petition in the court of common pleas of the county wherein the property is situated, setting forth all the facts in the case, and asking the direction of the court as to the proper disposition of such unappropriated property or proceeds. 8 Sec. 350. The kind of notice given in such case and the order of the court therein. Notice of the filing of such petition must be given by pub- lication in some newspaper printed and of general .circulation in the county where such petition is filed, for four consecutive weeks, setting forth the object and prayer thereof, and that any person, church, or congregation, claiming an interest in the subject matter of such petition, may appear and file an answer therein; and the court, on final hearing of the case, TCen'l Code, §9001, and follow- 8 Gen'l Code, § 9999 (K. S. § ing (R. S. §3773). 3774). 449 SALE OF REAL ESTATE BY SOCIETIES. §§351,352 is required to make such order or decree therein as will best secure the rights of the churches or congregations, or persons having an interest therein, and as will best promote the in- terests of religion, having regard, as near as may be, to the terms of the original trust or purposes with which such prop- erty or proceeds is charged, the costs of the proceeding to be taxed as justice and equity require. 9 Sec. 351. Procedure for sale of real estate in certain cases after certain church organizations have consolidated. When any two or more religious societies, denominations or ecclesiastical corporations in this State hereafter unanimously form a union, or which have heretofore unanimously formed a union, and have become united or con- solidated under and by virtue of any rules and regulations of such societies, denominations or corporations, or laws of this State, the trustees, deacons, directors, or other proper officers of such new society, denomination or corporation may, at the request of a majority of the members of either of such societies, denominations or corporations, petition a court of common pleas of the proper county, setting forth the fact of such union, and the court may, in its discretion, make an order requiring such officers, at the time of such union, to convey to such new organization the real estate owned and held by the parties to the union, as the court may direct; and if any of such officers refuse or neglect to obey such order, the decree of the court will operate as such convey- ance; but such order shall in no case be inconsistent with the original terms by which said real estate became vested in or entrusted to the parties of the union ; and in all cases the grantors of such real estate to such parties or their heirs, are to be made parties to the petition, and such grantors or their heirs who make no defense can not be subject to the pay- ment of costs. 10 Sec. 352. How notice of the pendency of the petition in such case shall be given. Notice of the pendency of the petition in such instances must be given by publication in a newspaper published in the »Gen'l Code, § 10000 (R. S. § i» Gen'l Code, § 10008 (R. S. § 3775). 3781). §§353,354 MERWINE ON REAL ACTIONS. 450 county where the petition is filed, for four consecutive weeks, setting forth the object and prayer of the petition, and if no newspaper is printed in such county, publication must be made in the newspaper published nearest to such county. 11 Sec. 353. When and how real estate of certain extinct in- corporated religious societies may be sold. When any parish, congregation or society becomes extinct, as mentioned in Gen'l Code §§ 10013, 10014 (R. S. § 3786), the court of common pleas of the county in which any real estate of such extinct parish, congregation or society is situated, may, upon the petition of the trustees of the denomination to which such extinct parish, congregation or society belongs, make an order for the sale of such property, whether the same has been built upon, or otherwise improved, or not, the proceeds of such sale to go to, and be for the benefit of the denomination repre- sented by such trustees, within the territorial limits represented by the body by which they were appointed, and the purchaser thereof will be vested with as full and complete a title to the property as the character of the original grant of such parish, congregation, or society will allow; but the provisions of this paragraph can not be so construed as to limit, or to any degree restrict the powers conferred by the two preceding paragraphs upon such trustees. 1 - Sec. 354. Duties of trustees of extinct parishes and their duties as to moneys received from sale of property. All money derived from the sale of any property under the provisions of original section and Gen'l Code, § 10015 (R. S. §3787), must be placed in the custody of the trus- tees of the presbytery, synod, conference, diocese or other ecclesiastical body having jurisdiction Avithin the territorial limits in which said property may be located, and they are re- quired to hold the same in trust for a period of ten years, or for such period as may be prescribed by law of the denomina- tion. If within that time another parish, congregation or society of the same denomination shall be organized in the same locality, then the court authorizing the sale of said property, may. upon proper application and evidence, authorize the return nGcn'l Code, § 10009 (R. S. § i=Gen'l Code, § 10015 (R. S. § 3782). 3787). 451 ;....:: op real estate by societies. §§355,356 of said money to the trustees of the new organization. Other- wise, such money shall become a part of the funds of the pres- bytery, synod, conference, diocese or other ecclesiastical body having jurisdiction. 13 Sec. 355. Who are to be made parties to proceedings for the sale of such property. When a petition is filed, as provided for in the last preced- ing section, all persons who may have a vested, contingent. or reversionary interest in such real estate, must be made parties thereto, and be notified of the filing and pendency thereof, in the manner provided by law in cases of the parti- tion of real estate; but the court may make such order as to costs as may be deemed just and proper. 14 Sec. 356. Manner of sale and conveyance of real estate of certain consolidated religious societies — Who must be defendants in such actions. The united corporations 15 may at the request of a majority of its members, or by act of its trustees, directors, or other governing body in its corporate name, petition the court of common pleas of the proper county, setting forth the fact of such union, and the court may, in its discretion, make an order requiring such officers to convey to such new corpora- tion the real estate owned and held by the parties to the union, as the court may direct, and, if any of such officers refuse or neglect to obey such order, the decree of the court will operate to serve as such conveyance, but such order can in no case be inconsistent with the original terms under which said real estate became vested in, or entrusted to, the parties to the union; and in all cases the grantors of such real estate, to such parties, or their heirs, or such other parties as the petitioners may deem advisable, may be made defendants to such petition and such of the defendants who make no de- fense can not be subjected to costs. 10 "Gen'l Code, § 10016 ( R. S. § 3793a) and following sections of 3787a). the statute. n Gen'l Code, § 10017 ( R. S. § i« Gen'l Code, §10048 (R. S. § 3788). 3793i); see also Gen'l Code § is Gen'l Code, § 10038 (R. S. § 10038, etc. ( R. S. § 3703 -a-b-c-d- e-f-g and h ) . §§357,358 MERWINE ON REAL ACTIONS. 452 Sec. 357. Publication of notice in such sales. Notice of the pendency of such petition must be given by publication in a newspaper published in the county where the petition is filed for four consecutive weeks, setting forth the object and prayer of the petition, and if no newspaper is printed in such county, publication then must be made in the newspaper published nearest to such county. 17 Sec. 358. Manner in which churches generally may sell, ex- change or encumber real estate. "When any charitable or religious society or association de- sires to sell, exchange or encumber by mortgage or other- wise, any real estate now or hereafter owned by it, or held in trust by it for any specified religious or charitable purpose or held for its use or benefit by the trustees either chosen by it or otherwise constituted, for any such religious or charitable purpose, except grounds used or occupied as burial places for the dead, the trustees, wardens, and vestry or other officers entrusted with the management of the affairs of such society or association or holding the title to such prop- erty, or such society or association itself, if it be incorporated under any law of this State, may file in the court of common pleas of the county in which said real estate is situate, a petition stating how and by whom the title thereto is held, that such society or association desires to make such sale, exchange or encumbrance, and setting forth the object of the same; and if upon the hearing of such case, it appears that such sale, exchange or encumbrance is desired by the members of the society or association, and that it is right and proper that authority be given to accomplish the same, the court may authorize the trustees or other officers of such society or association, or if incorporated as aforesaid, the society or the association itself, to sell, exchange or encumber such real estate in accordance with the prayer of such peti- tion and upon such terms as the court may deem reasonable; and in case the title thereto is held for the use or benefit of such society or association by the trustees, all or a ma- jority of whom are not chosen thereby but otherwise consti- tuted, and who refuse, upon request of such society or asso- iTfion'l Code, § 10049 (R. S. § 3793J). 453 SALE OF REAL ESTATE BY SOCIETIES. §§ 359-361 eiation, or its duly elected trustees, wardens, and vestry or other officers, to file such petition, the court upon the petition of such society or association, or its duly elected trustees or other officers aforesaid, may require said trustees holding such title to convey or encumber such real estate in accord- ance with the prayer of the petition and upon such terms as may be deemed reasonable; provided, that all trustees holding title as aforesaid and refusing to file or join in such petition are required to be made defendants therein and be served with summons as in a civil action. 18 Sec. 359. Kind of notice to be given when the sale of church property is asked of the court. The petitioners shall cause notice of the pendency and prayer of the petition to be published in some newspaper of general circulation in the county where the real estate proposed to be sold, exchanged or encumbered is situate, for four consecutive weeks, before the said application is to be heard. 19 Sec. 360. All sales, mortgages or exchange of church prop- erty, sold by proceeding in court, to be confirmed by court. The trustees or other officers of such religious society, au- thorized to make such sale, exchange or encumbrance, are required to make return thereof to the court ordering the same at such time as the court may order, and thereupon, if the court is satisfied that the same has been made in all respects according to its order, the court must approve the same, and must order that the proceeds be invested in other real estate for the use of such society, used in the payments of its deb is, or otherwise invested or disposed of according to the prayer of said petition. 20 Sec. 361. When real estate given to certain charitable uses may be sold by order of court— Procedure in such cases. When any real estate, except burial grounds or a cemetery, has been donated, bequeathed, or otherwise entrusted to, <>r isGen'l Codo. § 10051 (R. S. § 19 Gen'] Code, § 10032 (B P. § 3794). See No. 202 and following 3795). for all forms of procedure in such 20 Qen'l Code, § 10056 (R. S. § action to encumber such real 379G) estate. § 362 MERWINE ON REAL ACTIONS. 454 purchased by, any person or trustee, for any public religious use, but not to or for the use of any specitic or particular re- ligious society or denomination, or when the same has been donated, bequeathed or entrusted to, or purchased by, a par- ticular religious society or denomination, and has been aban- doned for such use, the court of common pleas of the county in which the same is located may upon good causes shown, upon the petition of any citizen of the vicinity, make an order for the sale of such property, whether the same has been built upon or otherwise improved or not, and may make such order as to costs, and such disposition of the proceeds of the sale to such religious or other public use as may be just, proper and equitable, and the purchaser thereof will be in- vested with as full and complete a title thereto as the character of the original grant for such religious use will allow. 21 Sec. 362. Necessary parties to such proceeding — Partition of church property. All persons who have a vested, contingent or reversionary interest in such real estate, and the trustees or other tem- poral officers of any religious society then using the same, must be made parties to the petition and be notified of the filing and pendency thereof as in a civil action. -- Under the subject of partition of real estate, in another part of this work, will be found the law regulating and con- trolling the partition of certain church properties. ziGetfl Code, § 11936 (R. S. § 22 Gen'l Code, § 11937 (R. S. § 5812). 5813). FORMS. PROCEDURE FOR SALE, EXCHANGE OR ENCUMBRANCE OF CHURCH PROPERTY. Forms. 29G. Petition for sale or exchange of church properties. Legal notice and proof of publication. Order of court authorizing sale and exchange of real estate. Report of sale an' 1 exchange of real estate by church. Order of court confirming exchange and ordering deeds to be made. Form for church deed in ex- change of real estate. 207. 298. 299. 300. 301. Forms. 302. Petition asking for sale and encumbrance of church property. 303. Publication of notice and proof of same. 304. Decree of court authorizing mortgage of part and sale of part of lx-nl estate of church. 305. Confirmation of sale and mortgage of real estate. 306. Form for deed in such in- stance. No. 296. Petition Court of Common Pteas, County. Ohio. In the matter of the conveyance of certain real estate of the of , Ohio, a re- ligious society incorporated under the laws of the State of Ohio. Petition. Your petitioners, A. W. P., W. L. W., C. E. R, T. B. S., O. C H., J F R. and E. A. H., all of the city of , Ohio, respectfully represent to the court that they are duly elected, qualified and acting „ r™ rhurch of Ohio; that said trustees of Tne L,nuicn oi church is a religious society duly incorporated and organized under an act of the General Assembly of the State of Ohio, which passed and took effect on the day of , A. D. 18-, and was and is pub- lished in Vol. of the laws of said State on pages and . By said act of incorporation said religious society is made capable of holding property, real, personal and mixed, either by purchase, gift, grant "devise or legacy, and may sell, loan, dispose of or convey the same ' and the property and other concerns of said corporation placed under the management and control of trustees of said corporation ap- 455 MERW1NE ON REAL ACTIONS. 456 pointed for that purpose; that said petitioners are intrusted with the management of the affairs of said religious society. Said church society and incorporation is the owner in fee simple cf the following described real estate situated in the county of , State of , and in the city of , to-wit: (Here insert description of real estate.) The church edifice used and occupied by said church stands on said premises, and said premises are wholly occupied thereby, and no part of the same is used or occupied as burial places for the dead. The said church or society received title to said premises on the day of , 18 , by deed, from to the Church of , Ohio, and has so held the title thereto ever since. Said church society desires to exchange, sell and convey said prem- ises to the Church of , Ohio, a religious society duly incorporated and organized/ under the laws of Ohio; and on the day of , A. D. 18—^/ the said trustees of said Church were duly authorized by the action, vote and consent of the members of said society to exchange, sell and convey said premises by a good and sufficient deed of general warranty in fee simple to said Church of , Ohio, which then was and still is a religious so- ciety duly incorporated under the laws of Ohio, for the consideration that said Church convey by a good and sufficient deed of general warranty in fee simple to said Church of , Ohio, the following real estate owned by said .Church, de- scribed as follows: Situated in the county of , in the State of Ohio, and in the city of , being (here insert description of real estate), and on which said piece of ground is situated the church edifice of said Church; and on the further consideration that said Church also execute and deliver to said Church a mortgage on said premises first described herein for the sum of 5 , due and payable years after the day of , 19 , with interest at six per cent, per annum payable semi-annually. The object and purpose of said Church in making said exchange, sale and conveyance of its said property is to procure with the proceeds arising from such exchange and sale a more desirable and suitable site, location and church edifice for its said society, and it has an opportunity and offer of turning said $ mortgage as a cish payment at its face value on the purchase price of a desirable and suitable lot of ground on Street, in said city, on which said society proposes to erect a new church edifice. The said prop- erty of said '■ Church, so to be conveyed to said Church is suitable for business purposes and is salable property, and it I purpose of said Church to convert the same into as speedily as possible; the same to be used toward the pur- chase of said new church site and the erection of said new church Therefore, your petitioners say that the best interests of said re- ligious society which they represent will be served by making such 457 FORMS. exchange, sale and conveyance, and they pray for an order of this court authorizing them to exchange, sell and convey said premises in manner and form aforesaid and to the party aforesaid, and for all suitable and further relief as the nature of the case may require. Attorney for Petitioners. State of Ohio, County, ss.: A. W. F., one of the above named trustees of said The Church of Ohio, being duly authorized in the premises, says that the facts stated and allegations contained in the foregoing peti- tion are true as he verily believes. A. W. F. Sworn to before me and subscribed in my presence by the said A. W. F.. this day of , A. D. 19 . Notary Public, County, Ohio. No. 297. Legal notice and proof of publication. Notice is hereby given to the officers and members of the Church of , Ohio, and to the officers and members of the Church of , Ohio, and to all others whom it may concern, that on the day of , A. D. 19 , the trustees of the Church of , Ohio, filed in the court of common pleas of County, Ohio, in case No. , their certain petition praying the court for an order giving them authority to exchange, sell and convey in fee simple to said Church of , Ohio, the following described real estate situated in the county of , in the State of Ohio and in the city of to-wit: (Here insert description of property), on which premises stands the church edifice used and occupied by said Church. Said petition and cause will be heard on , the — — day of , A. D. 19 , or as soon thereafter as may be. (Here must appear signatures of trustees.) Petitioners. -, Attorney. State of Ohio, County, ss.: i, G. W. D., being duly sworn, depose and say that the legil notice of which a true copy is hereunto annexed, was published four times (insert dates of publication) and immediately prior to the day of > a. D. 19 , the day of hearing therein mentioned, i n the , a daily newspaper printed -in the city of , County of - State of Ohio, and of general circulation therein. G. W. D. Sworn to before me and subscribed in my presence, this day of , 19- Notary Public in and for County, Ohio. (Seal.) MERWINE ON REAL ACTIONS. 458 No. 298. Order of court authorizing sale and exchange of real estate. Court of Common Pleas, County, Ohio. In the matter of the conveyance of certain real estate of the Church of , Ohio, a religious society incorporated under the laws of Ohio. No. . Entby. This day came the petitioners, by their counsel, & , and thereupon this cause came on for hearing upon the petition and the evidence, and was argued by counsel and submitted to the court, on consideration whereof the court being fully advised in the premises, finds that the petitioners have given due legal notice of the pendency and prayer of said petition by causing notice thereof to be published in the , a newspaper of general circulation in County, Chio, where said real estate is situate, for four (4) consecutive weeks, commencing on the day of , 19 — , prior to this hear- ing, and the court further finds from the evidence that the properties which are sought to be exchanged, sold and conveyed, described in the petition: Situate in the county of , State of Ohio, and in the city of , to-wit: (Here insert description of real estate) are owned in fee simple by the Church of , Ohio, for religious purposes; that said church is a duly incorporated religious society under the laws of Ohio; that said premises are not used or occupied as burial places for the dead, and that A. W. F., C. E. R., T. B. S., O. C. H., F. J. R. and E. A. H. are the duly elected, qualified and acting trustees of said religious society, and are intrusted with the management of the affairs of said society. The court further finals that it is desired by the members of said religious society, represented by the petitioners herein, to exchange, sell and convey said premises to the Church of , Ohio, a religious society duly incorporated under the laws of the State of Ohio, for the consideration that said Church convey to the said Church the following real estate, owned by the said Church and described as follows: (Here insert descrip- tion of said real estate), and on which said piece of ground is situ- ated the church edifice of said ; and on the further consid- eration that said Church also execute and deliver to said Church a mortgage on said premises first described herein, for the sum of $ , due and payable years after the day of , 10 , with interest at per cent, per annum, in- terest payable semi-annually. The court further finds that the object and purpose of said Church in making said exchange, sale and conveyance of its said property is to procure with the nroceeds arising from such exchange and conveyance a more desirable and suitable s'te, location and church edifice for its said society, and to apply said $ mort- 459 FORMS. gage as a cash payment at its face value on the purchase price of a desirable and suitable lot of ground on Street in said city; that the said property of the said Church, so to be conveyed to said Church in exchange, is suitable for business pur- poses, and is salable property, and it is the purpose of said Church to convert the same into money as speedily as possible, the same to be used toward the purchase of said new church site and the erection of a new church edifice. The court further finds that it will be for the best interests of the said Church of , Ohio, so to exchange, sell and con- vey its said premises in accordance with the prayer of said petition. Now, therefore, it is ordered, adjudged and decreed by the court that the said trustees of the Church of , Ohio, be and they are hereby authorized to convey to said religious society the Church of , Ohio, the premises mentioned in the petition, described as follows, to-wit: Situated in the county of , State of Ohio, and in the city of ( to-wit: (Here insert description of real estate), and on which said piece of ground is situated the church edifice of said Church And it is further ordered by the court that the said Church of , Ohio, make, execute and deliver to the said Church of , Ohio, the said mortgage of $ on the said premises first hereinabove described, due and payable years after the day of , 19 — , with interest at per cent., payable annually, and that said Church accept said mortgage from the said Church as a part of the con- sideration for said exchange. It is further ordered that an order issue therefor to the said trustees of said Church according to law, ordering and di- recting them, in behalf of said society, to exchange, sell and convey its said premises as herein ordered and to make return thereof to this court for further order. No. 299. Report of sale and exchange by church. Report of Sale. Now come A. W. P., W. L. W., C. E. R., T. B. S., O. C. H., J. F. R. and E. A. H., as trustees of Church of , Ohio, and repcrt to the court that as such trustees they have exchanged and sold to the Church of , Ohio, under the former order of this court, made , , 19 — , the following described real estate of the said Church of , Ohio, situated in the county of , State of Ohio, and in the city of , to- wit: (Here insert description of real estate), for the consideration and price and upon the terms following, to-wit: The Church of , Ohio, the purchaser, is to convey to the said Church of , Ohio, the following described premises situate in the county of , in the State of Ohio, and in the city of , to-wit: (Here insert description of real MERWINE ON REAL ACTIONS. 460 estate), and also execute and deliver to the said Church of t Ohio, a mortgage on the said premises first hereinabove described, for the sum of $ , due and payable years after the day of , 19 , with interest at per cent, per annum, interest payable — . A. W. F., Chairman of the Board of Trustees of the - Church of , Ohio. No. 300. Order of court confirming exchange and ordering deeds to be made. This day this cause came on to be heard on the report of A. W. F., et al, as trustees of the Church of , Ohio, of the exchange and sale by them of certain real estate described therein, belonging to said church, to the Church of , Ohio, under the lormer order of this court, made on the day of , 19 , and on the motion of said trustees to confirm the same, and on consideration thereof the court finds that said exchange and sale of said real estate by said trustees as aforesaid, is in all respects reg- ular and correct and according to law and the former orders of this court, and it is therefore ordered that said exchange and sale of said real estate be, and the same is hereby ratified and confirmed, and said trustees are ordered and directed to make, execute and deliver to the Church of , Ohio, a deed for said premises, according to law, upon said Church executing and delivering to said trustees a deed conveying to said Church, the follow- ing described premises situate in the county of , State of Ohio, and in the city of , (here insert description of real estate), also executing and delivering to said trustees a mortgage for the sum of $ on said premises so conveyed to said Church, with interest thereon from the day of , 19 , at per cent, per annum, payable . No. 301. Form for church deed. Know all Men by These Presents, that Whereas, On the day of , 19—, A. W. F., W. L. W., C. E. R., T. B. S., O. C. H., J. F. R. and E. A. H., all of , Ohio, the then duly elected, qualified and acting trustees of the Church of , Ohio, a religious society duly incorporated and organized under the laws of Ohio, filed in the court of common pleas of County, Ohio, in case No. — , in said court, their peti- tion, praying, among other things, for an order of said court author- izing and directing them as such trustees, to exchange, sell and con- vey the premises hereinafter described, belonging to said the Church of - , Ohio, to the Church of , Ohio, a religious society duly incorporated and organized under the laws o f Ohio; and Whereas, Afterward, on the day of , 19—, said case came on to be heard upon said petition, and upon consideration 461 FORMS. thereof, and the court being duly advised in the premises, found that the said petitioners had given due and legal notice of the pendency and prayer of said petition by causing notice thereof to be published in the , a newspaper of general circulation in County, Ohio, where said real estate is situated; and Whereas, Such proceedings were had in said action that by the consideration of said court, at the — term thereof, , 19 — , and on the day of , 19 — , said court ordered, adjudged and decreed that said trustees of the said Church of , Ohio, convey to the said Church of , Ohio, the prem- ises hereinafter described. Whereas, Afterward, on the day of , 19 — , the said trustees filed herein their report of exchange and sale of said premises to the said Church of , Ohio, and on con- sideration whereof the court found said exchange and sale of said premises to be in all respects regular and correct and according to law and the former orders of said court and confirmed and ratified said exchange and sale, and ordered said trustees, on behalf of said Church of , Ohio, to make, execute and deliver to the said Church of , Ohio, a deed for said premises according to law. Now, Kxow ye Therefore, That the Church of , Ohio, by A. W. F., W. L. W., C. E. S., T. B. S., O. C. H., J. F. R. and E. A. H., as trustees thereof, by virtue of said order of said court and of the statute in such cases made and provided, and for and in consideration of the sum of $ , secured to be paid and tor and in consideration of the exchange of real estate as provided in said orders of said court, does hereby grant, bargain, sell and convey unto the said Church of , Ohio, its successors and assigns forever, the following real estate, situated in the county of , in the State of Ohio, and in the city of , and bounded and described as follows: (Here describe real estate), together with all the privileges and appurtenances thereunto belonging, and all the right, title and interest of said Church of , Ohio, in and to the same. To Have and to Hold the premises aforesaid unto the said Church of , Ohio, its successors and assigns forever, and the said the Church of , Ohio, by A. W. F., W. L. W., C. E. R., T. B. S., 0. C. H., J. F. R. and E. A. H., as such trustees, for the said Church of , Ohio, its successors and assigns, does hereby covenant with the said Church of , Ohio, its successors and assigns, that said Church of , is lawfully seized of the premises aforesaid, that said premises are free and clear from all encumbrances whatsoever, except the unpaid balance of the street assessment on said premises for the improve- ment of Street, and that said Church of , Ohio, will forever warrant and defend the same with the appurtenances unco the said Chui'ch, its successors and assigns against the lawful claims of all persons whomsoever, except as before mentioned. MERWINE ON REAL ACTIONS. 462 In Witness Whereof the saxd ths Church of Ohio, at the time caused these presents to be signed, executed, ac- knowledged and delivered in its name and behalf by A. W. F., W. L. W., C. E. R., T. B. S., O. C. H., J. F. R. and E. A. H., as the trustees thereof, this day of , 19 . Signed and acknowledged in the presence of State of Ohio, County, ss.: Be It Remembered, That on the day of , A. D. 19—. before me, the subscriber, a notary public in and for said county, personally came the above named A. W. F., C. E. R., W. L. W., T. B. S., O. C. H., J. F. R. and E. A. H., as trustees of the Church of , Ohio, the grantors in the foregoing deed, and acknowledged the signing and sealing of the same on behalf of said Church of , Ohio, to be the voluntary act and deed of said Church of ■ , Ohio, for the uses and purposes therein men- tioned. In Testimony Whereof, I have hereunto subscribed my name and affixed my official seal on the day and year last aforesaid. Notary Public, County, 0. Procedure in Case Sale and Mortgage of Church Property is Asked. Court of Common Pleas, County, Ohio. In the matter of the application of the Trustees of The Church of , Ohio, to mortgage and sell real estate. Ex parte. No. No. 302. Petition. The undersigned, trustees and officers of the Church of Ohio, respectfully represent that the said church is ths owner in fee simple of the following described real estate, situated in the County of , State of , and city of , to- wit: (Here insert description of real estate). Petitioners further represent that in order to secure the rioney necessary to pay certain outstanding obligations of said church, the officers and certain members of said church on the day of 19 — t executed and delivered their promissory note for the 463 FORMS. sum of dollars, payable to the order of , in days after the date thereof, with interest from date; that at a regu- lar meeting of the officers of said church, it was decided to build a parsonage on said premises; and that in order to pay said indebted- ness and pay for the building of said parsonage, it would be for the best interests of said church to sell the following parcel of said real estate, to-wit: (Here insert description of parcel to be sold), and to mortgage for a period not less than three years, the following parcel of said real estate, to-wit: (Here insert description of real estate to be mortgaged). Petitioners further represent that the members and officers of said church desire to sell the aforesaid real estate and encumber by mortgage as aforesaid, the parcel of real estate last herein de- scribed, and that it is right and proper that authority be given to accomplish the same? Petitioners therefore pray that they may be authorized to sell upon such terms and conditions and for such price as they may deem fit, the parcel of real estate described as follows, to-wit: (Here insert description of real estate), that they be authorized to en- cumber by mortgage for such length of time and upon such terms and conditions as they may deem fit and proper, the following parcel: (Here insert parcel to be encumbered), and for such further orders and directions as may be necessary and required by law to accomplish the matters and things herein set out. The Trustees of Church of Ohio. By , Their Attorney. The State of Ohio, , County, ss.: Before me, the undersigned authority, personally came F. W., who being by me first duly sworn. Lays that he is one of the trustees of said church, and that the facts stated and allegations contained in the foregoing petition are true. F. W. Sworn to before me and subscribed in my presence, this day of , 19 . . Notary Public in and for County, Ohio. No. 303. Publication of notice and proof of same. In the matter of the application of the Trus- tees of the Church of , Ohio, to sell and mortgage real estate. Case No. Notice is hereby given that a petition has been filed in the court of common pleas, County, Ohio, Case No. , praying for authority from said court to sell the following described real estate, situated in the county of . State of Ohio, and in the city of , to-wit: (Here insert descrintion of real estate), also to mortgage the following: (Here insert description). MERWINE ON REAL ACTIONS. 464 Said petition will be heard four weeks after the first publication of this notice. Attorney for the Trustees of Said Church. State of Ohio, County, ss.: I, L. B. S., being first duly sworn, depose and say that the legal notice of which a true copy is hereunto annexed, was published four times (here insert dates of publication), A. D. 19 , in , a daily newspaper printed in the city of , County of , State of Ohio, and of general circulation therein. L. B. S. Sworn to before me, and subscribed in my presence, this day of , 19 . , (Seal.) Notary Public in and for County, Ohio. No. 304. Decree of court authorizing mortgage of part and sale of part of real estate of church. Court of Common Pleas, County, Ohio. In the matter of the application of the Trus- tees of , to mortgage and sell real estate. Decree No. . This cause coming on for hearing and the court finding that no- tice of the prayer of said petition has been given for four consecu- tive weeks in the , and the court being satisfied upon the proofs that the members and officers of said church desire to sell and encumber the real estate described in the petition, and that it is right and proper that authority be given to accomplish the same, it is therefore ordered, adjudged and decreed that the trustees of said church be, and the same are hereby authorized and directed to sell and convey by deed of general warranty, the following described real estate, situated in the county of , State of Ohio, and city of , to-wit: (Here insert description of real estate) to such person or persons, upon such terms and conditions and for such price as said trustees may deem proper. It is further adjudged and decreed that said trustees be, and they are hereby authorized to encumber by mortgage, for such length of time, and upon such terms and conditions as they may deem fit and proper, the following described parcel of real estate, in the , county of and State of Ohio, to-wit: (Here insert descrip- tion of real estate). It is further ordered that said trustees make due return of their proceedings hereunder to this court for its approval at the next term of this court. 465 FORMS. No. 305. Confirmation of sale and mortgage of real estate. In the matter of the application of the trustees of the , Church of , Ohio, to sell and mortgage real estate. Ex parte No. . Now come the trustees of said church and make return of their proceedings as hereinbefore ordered and directed, as follows, to- wit: Said trustees have sold to T. G. H., and conveyed to him by deed in fee simple the premises ordered and directed to be sold by said trustees in a previous order and decree herein, for the sum of dollars ($ ), which deed they herewith present to the court and ask that the same be approved and confirmed. Said trustees have mortgaged by first mortgage, the premises or- dered and directed to be mortgaged by said trustees in a previous order and decree herein, to C. S., for the sum of dollars, for years, with the option of paying the same at the expiration of one year by giving thirty days' notice of an intention so to do, with interest on said sum from date at the rate of per cent, per annum, payable . Said trustees have mortgaged by second mortgage the premises directed to be mortgaged by said trustees in a previous decree herein for the sum of dollars, to Church. And the court having carefully examined said deed and said mortgage, and finding them in all respects regular and in conformity to the previous orders of the court, the same are hereby approved and confirmed, and it is further ordered by the court that the proceeds arising from the sale of said real estate, and the proceeds arising from said mortgages be applied to the liquidation of the indebtedness of said church and the building of said parsonage. No. 306. Form for church deed. Whereas. To- wit: On the day of , 19 , at the term of court, the trustees and officers of the Church of , Ohio, filed their petition in the court of common pleas, county, Ohio, in case No. , ex parte, among other things therein praying for authority to sell the lands and tenements hereinafter described; and Whereas, Legal notice of the pendency and prayer of said petition was duly published once each week for four consecutive weeks in , a newspaper of general circulation of County, O.; and Whereas, Afterward, at the same term of court, said trustees of said church were authorized and directed to sell and convey by deed of general warranty said lands and tenements to such person or per- sons, and for such price or prices as they should deem proper, Now Therefore we, F. W., F. S., L. B. L., L. S., J. S., A. B., J. H. L., C. B. S. and S. G. D., trustees of said church, in consideration of the premises and of the sum of $ , and by virtue of the order MEl'.WTNE ON REAL ACTIONS. 466 and decree of said court, and of the statute in such cases made and pro- vided, do hereby give, grant, bargain, sell and convey unto , his heirs and assigns forever, the following described real estate, situate in the county of , and in the State of Ohio, and in the cit y f 1 to-wit: (Here describe said real estate). To Have and to Hold the same unto the said and unto his heirs and assigns forever, and the said F. W., F. S., L. B. L., L. S., J. S., A. B., J. N. L., C. B. S. and S. G. D., as such trustees for them- selves and their successors and assigns, do hereby covenant with the said that they are lawfully seized of said premises, that said premises are free and clear except the unpaid street assess- ments for the improvement of Street, which assessment herein assumes and agrees to pay as part consideration of this conveyance; and that they will warrant and defend said prem- ises against the lawful claims of all persons whomsoever, excspt as hereinbefore mentioned. In Witness Whereof, we, the trustees aforesaid, have hereunto set our hands and seals this day of , 19 . Signed, sealed and acknowledged in the presence of State of Ohio, County, ss.: Before me, the undersigned authority, , a notary public in and for County, Ohio, personally came F. W., F. S., L. B. L., L. S., A. B., J. W. L., C. B. S. and S. G. D., trustees of said church and the grantors in the foregoing deed, and as such trustees acknowledged the signing and sealing thereof to be their voluntary act and deed for the uses and purposes therein mentioned. In Witness Whereof, I have hereunto affixed my notarial seal on the day and year last aforesaid. Notary Public, County, Ohio. CHAPTER XII. LAW AND PROCEDURE IN PROCEEDING TO FORECLOSE A MORTGAGE. Section. 363. The execution and acknowl- edgment of a mortgage. 364. The lien of a mortgage and its priority over other liens. 365. The assignment of the note carries with it the mort- gage security. 36(5. The mortgagee's remedies-— Foreclosure, ejectment and an action on the note for a personal judgment. 367. Where the action to fore- close a mortgage must be brought. 368. The action to foreclose a mortgage and for a per- sonal judgment. 360. The action when one not a party to the transaction assumes the mortgage and agrees to pay it. Si (i ion. 370. Mortgage may he foreclosed on default of payment of one of a series of notes, when. 371. What courts have jurisdic- diction — Personal repre- sentatives and assignees of mortgagor. 372. A receiver may be appointed to take charge of the real estate in the action to foreclose a mortgage, when. New appraisement and terms of sale of mortgaged premises. The action to foreclose a mortgage on real estate and procedure incidental to the action. 373. 374. Sec. 363. The execution and acknowledgment of a mortgage. A mortgage of any estate or interest in real property mnst be signed by the mortgagor, and sneh signing mnst be ac- knowledged by the mortgagor in the presence of two wit- nesses, who shall attest the signing and subscribe their names to the attestation, and snch signing mnst also be acknowl- edged by the mortgagor before a judge of record in this State, or a clerk thereof, a county auditor, county surveyor. or notary public, mayor, or justice of the peace, who shall certify the acknowledgment on the same sheet on which the instrument is written or printed, and subscribe his name thereto. 1 iGen'l Code, §8510 (R. S. §4106). 467 §364 MERWINE ON REAL ACTIONS. 468 Sec. 364. The lien of the mortgage and its order of priority. As between the parties to a mortgage, if properly executed, acknowledged and delivered, it is a good lien on the real estate described in the mortgage. However, to make it a valid lien, retaining its priority as to every one, it must be filed for record with the recorder and by him recorded in the proper records in his office. This is made so by a statute providing that all mortgages executed agreeably to the pro- visions of the chapter of the statutes relating to conveyances and incumbrances of real estate, shall be recorded in the office of the recorder of the county in which the mortgaged prem- ises are situated, and shall take effect from the time the same are delivered to the recorder of the proper county for record; and if two or more mortgages are presented for record on the same day, they shall take effect from the order of pre- sentation for record; the first presented shall be first recorded, and the first recorded shall have preference. 2 Space forbids a full discussion of the nature, extent and priority of a lien of a defectively executed mortgage though properly filed and recorded, and afterwards in equity cor- rected and validated; of the priority of lien between a valid judgment and an unrecorded mortgage ; of a mortgage prop- erly filed and recorded with notice of an outstanding mort- gage unrecorded; of the nature and effect of taking a pur- chase money mortgage upon his vendor's lien; of the lien of a purchase money mortgage and a judgment against a pur- chaser; and of a mortgage with a clause to cover future advances, and reference can be made only in the note to a few of the decisions on these subjects. 3 2 Gen'l Code, § 8542 (R. S. § 4133). See Gen'l Code, § 2757 (R. S. § 1143), as to what books a re- corder is required to keep. See Gen'l Code, § 2760 (R. S. § 1149), as to when a copy may be filed and recorded in another county. Fosdick v. Barr, 3 0. S. 471 Betta v. Snyder. 48 0. S. 492 Sidle v. Maxwell, 4 0. S. 23fi Smith v. Smith, 13 0. S. 532 Paine v. Mason, 7 O. S. 198 Green v. Carrington, Hi O. S. 548 Jennings v. Wood, 20 0. 261; Brown v. Kirkman, 1 O. S. 11G; Tousley v. Tousley, 5 O. S. 78; Stewart v. Hopkins," 30 O. S. 502; Building Association v. Clark, 43 0. S. 427 ; a deed absolute on its face but in reality a mortgage recorded under R. S. § 4134. Kemper v. Campbell, 44 0. S. 210. "Van Thornity v. Peters, 2G 0. S. 471; Hood v. Brown, 2 0. 266; Magee v. Beatty. 8 0. 396; Stousell v. Roberts, 13*0. 148; Mayham v. Coombs, 14 0. 428; White v. Den- man, 16 O. 59: Fosdick v. Barr, 3 O. S. 471; Tousley v. Tousley, 5 0. S. 78; Erwin v." Shuey, 8 0. S. 469 LAW AND PROCEDURE TO FORECLOSE MORTGAGE. $365 Sec. 365. The assignment of the note carries with it the mort- gage security. Where a promissory note is secured by mortgage, the note, not the mortgage, represents the debt. The mortgage is therefore a mere incident, and an assignment of such incident will not, in law, carry with it a transfer of the debt ; on the other hand, a transfer of the note by the owner so as to vest legal title in the indorsee will carry with it equitable owner- ship of the mortgage. And so, if the debt be evidenced by several promissory notes, the legal transfer of a portion of the notes carries with it such proportional interest in the security as the notes transferred bear to the whole. Being but an incident to the debt, the mortgage remains until foreclosure or possession taken, in the nature of a chose in action Where given to secure notes, it has no determinate value apart from the notes, and so, distinct from them, is not a fit subject of assignment. And where the notes are legally transferred, the mortgagee and all claiming under him will hold the mortgaged property in trust for the holder of the no^es* It has been held that where the mortgagee retaining the leo-al interest in the mortgage, subsequently enters satis- faction and a discharge upon the record of tne mortgage, such discharge operates to cancel the record of the mortgage, as against subsequent purchases and mortgages in good faith, and without notice; and as against them, the assignee of a note secured by the mortgage can not assert his equitable lien. 5 500; Kyle v. Thompson, 11 0. S. 616; Bercaw v. Cockerell, 20 O. S. 163; Boos v. Ewing, 17 0. 500; Ward v. Carey, 39 0. S. 361; Spad- ler v. Lawler, 17 0. 371. As to defective mortgages, see Hitesman v. Donnell, 40 0. S. 287; White v. Doerner, 1 0. S. 110; Bloom v. Noggle, 4 O. S. 45; Clements v. Doerner, 40 0. S. 632. Spear. J., in Koernohan v. Manss, 53 0. S. 133; Harkreider v. Leiby. 4 0. S. 602: Swartz v. Leist, 13 0. S. 410; Fithian v. Corwin, 17 0. S. 118; Allen v. Bank 23 0. S. 07; Holmes v. Gardiner, 15 0. S. 167. 4 Spear, J., in Koernohan v. Manss, 53 0. S. 133; Jordan v. Cheney. 74 Me. 359; Jones on Mort- gages.' 818; Pomeroy's Equity Jur., § 1210. 5 Swartz v. Leist, 13 0. S. 420; lea v. Ropers. 54 0. S. 678. See Gen'l Code, §8546 ( R. S. §4135) for statutory requirement for re- lease of a mortgage, and also for the record of the assignment of a mort- gage. See also § 4135« (Gen'l Code, § S547) for release and acknowledg- ment of a mortgage on a separate certificate. § § 366, 367 MERWINE ON REAL ACTIONS. 470 Sec. 366. Mortgagee's remedies — Foreclosure, ejectment, or an action on the note for a personal judgment. It has been finally decided in this State that a mortgagee In tiding and owning a mortgage in the ordinary form, eon^ veying Ihe real estate in fee, and also containing a condition of defeasance, reciting that if said mortgagors shall pay to the mortgagee or his order said indebtedness, when due and payable, then the deed should be void, otherwise to be and remain in full force and virtue, has three remedies which are older than our code of civil procedure, and which arc not affected or superseded by it. He may bring an action in foreclosure of the mortgage, have an account taken of the debt secured by it and an order of sale, cutting off the equity of redemption; or he may, after condition broken, assert title under the mortgage and bring ejectment and recover posses- sion of the mortgaged premises. This latter remedy is the better one when fifteen years has elapsed after the claim is due; for the limitation of the action on the note and mortgage in the action is fifteen years, while in the action of ejectment, the limitation is twenty-one years. 6 But the remedy in eject- ment does not cut off the right of redemption. 7 The lien of the mortgage may be invalid and the mortgagor respon- sible for his obligation. The action then may be for a per- sonal judgment. The action to foreclose, the action in eject- ment, and the action for a personal judgment for the debt may all be brought at one time. 8 'b J Sec. 367. "Where the action to foreclose a mortgage must be brought. The code provides that actions for the sale of real prop- erty under a mortgage, lien or other incumbrance or charge, must be brought in the county where the real estate is situ- ated. 9 But when the property is situated in more than one county, the action may be brought in either; but this can only be done when the property is an entire tract. 10 fl Brodfield v. Hale, 07 O. S. 323; t Brodfield v. Hale, 07 0. S. 323. Doe v. Pendleton, 15 0. 735; * Longworth v. Flagg, 10 0. 302. Frische v. Kramer, 16 0. 125; *> Gen'l Code, §11268 ( R. S. Childs v. Childs, 10 0. S. .'53!); §5019). Maholm v. Marshall, 2!) Allen v. Everly, 24 0. S. 07; 0. S. 611; Kraner v. Fouster, 32 W. Williams v. Englebrecht, 37 O. S. L. B. 199. 383; Kerr v. Lydecker, 51 0. S. io Gen'l Code, §11269 (R. S. 2 10. §5020). 471 LAW AND PROCEDURE TO FORECLOSE MORTGAGE. § 368 Sec. 368. The action to foreclose a mortgage and for a per- sonal judgment. The plaintiff may unite several causes of action in the been denominated legal or equitable, or both, when the can of action arc claims to foreclose a mortgage given to secure the payment of money and to recover a personal judgment for the debt secured by such mortgage. 11 This requirement is permissive at the election of the plaintiff. 12 In order that plaintiff may have a personal judgment, the prayer of the petition must ask for it, 13 and the service must be personal. 14 A personal judgment can be entered, in a proper case, against all of the makers of the note and a foreclosure of the mort- gage against one of them. 15 Sec. 369. The action when one not a party to the mortgage assumes it and agrees to pay it. The law is that one who assumes a real estate mortgage, in a deed of the real estate to him, and agrees to pay it, becomes the principal debtor and his grantor becomes surety, and the rule is that where successive grantees assume the mortgage debt, the last grantee assuming the debt is the principal debtor and each successive grantee is surety. It is a rule of law in this State that Avhere the purchaser of real estate takes it incumbered with a mortgage, and an abate- ment is made in the consideration on account of the mortgage, the law will imply a promise on the part of the purchaser to pay the mortgage debt. 16 The agreement may be enforced by the last purchaser against such previous owner, though the agreement may not have been made to and with the latter. The law will imply the agreement. 17 And the agreement though made orally, can be enforced. 18 nGen'l Code, § 1130!) ( R. S. § ie Thompson v. Thompson, 4 0. 5061). S. 333. 12 Spence v. Insurance Co., 40 0. " Emmet v. Brophy, 42 O. S. 82. S. 417. i- Society v. Haines, 47 0. S. 13 Giddings v. Barney, 31 0. S. 424; as to agreements to assume 80. mortgages, see Brewer v. Maurer, i+ Wood v. Stanberry, 21 0. S. 38 O. S. 543; Poe v. Dixon, 60 0. 142. S. 124: Barker v. Comp, 71 Am. "King v. Safford, 19 O. S. 587; St. 186; Ordway v. Downer, 51 Butzman v. Whitbeck, 42 O. S. 223; Pac. Rep. 1047; Thompson v. but see Larrimore v. Clemmer, 31 Chessman, 48 Pac. Rep. 477; Stan- O. S. 499. ton v. Kendrick, 35 N. E. Rep. 19. §§370,371 MERWINE ON REAL ACTIONS. 472 Where the action is against several grantees who have as- sumed the mortgage and agreed to pay it, there is but one cause of action, and all of them may be set forth in one petition without being separately stated and numbered. This was the form of action in the petition cited in the note in which the action was decided by the Supreme Court of this State without report. 19 Sec. 370. Mortgage may be foreclosed on default of payment of one of a series of notes, when. When there are a series of promissory notes for specific sums, payable at different specific dates, each secured by a mortgage of real estate containing a stipulation that if default be made in the payment of any one of the notes, then each and all should fall due and the mortgage to become absolute as to all of the notes remaining unpaid at the time of such default, the mortgage may be foreclosed as to the whole debt and the real estate sold to satisfy the same. 20 Default in the payment of the interest when due, if so de- clared in the mortgage, will authorize a foreclosure of the mortgage for a satisfaction and payment of the whole debt. 21 The mortgage may provide for a foreclosure on failure of the mortgagor, or owner, to insure the premises. 22 Sec. 371. What courts have jurisdiction— Personal represent- atives and assignees. The court of common pleas has jurisdiction to foreclose a mortgage, but when the action is begun by the owner and holder of the mortgage, after the death of the mortgagor, the personal representatives have the right to sale of the real is See No. 324 for form of peti- tion in such case; see also Pome- roy's Code Remedies, § 459; 1 Kin- kead's Code Pleading, § 584; But ler et al, v. Beebe, Supreme Court of Ohio, unreported. aoMcCleland v. Bishop, 42 0. S. 113; Goodman, etc., v. Cincinnati, etc.. 2 Disney 176; King v. Long- worth, 7 0. (pt. 2) 25; Cincinnati, etc., v. The Central Trust, etc., 25 W. L. B. 375; as to how such notes assigned to different persons will be paid see Bushfield v. Meyer, 10 0. S. 334. Also Brewton v. Cromwell, 51 O. S. 579; Coons v. Clifford, 58 0. S. 480; 51 N. E. 39; Bank v. Covert, 13 0. 240; Winters v. Bank, 33 0. S. 250; see Exchange Bank v. Eddy, 10 W. L. B. 389. 21 Goodman, etc., v. The Cincin- nati, etc., 2 Disney, 170. 22 Gotscholl v. Mohler, et al, 1 Iddings T. P. D. 27. 473 LAW AND PROCEDURE TO FORECLOSE MORTGAGE. § 372 estate by petition to sell in the probate court, in which action the holder of the mortgage may set up his claim by cross- petition. After a mortgagor has made an assignment for the benefit of creditors, his mortgagee can not bring his action to foreclose the mortgage in the common pleas court. In such case the assignee has complete jurisdiction, and must sell the real estate subject to the rights of the mortgagee in the real estate. 23 Where the remedy in the probate court is inadequate the action may be brought in the common pleas court. Sec. 372. A receiver may be appointed to take charge of the real estate in the action to foreclose a mortgage, when. A receiver may be appointed by the Supreme Court, or a judge thereof; the circuit court, or a judge thereof in his cir- cuit ; the common pleas court, or a judge thereof in his district ; or the probate court, in an action by a mortgagee for a fore- closure of his mortgage and sale of the mortgaged property, where it appears that the mortgaged property is in danger of being lost, removed or materially injured, or that the condi- tions of the mortgage have not been performed and the prop- erty is probably insufficient to discharge the mortgage debt.- 4 Notice must be given of the time and place where the appli- cation for a receiver will be made. The facts showing that a receiver should be appointed under the provisions of the statute are presented to the court usually by affidavit filed in the case. The order of the court should specifically set forth the duties of the receiver and the property given to his charge. Sec. 373. New appraisement and terms of sale of mortgaged premises. When premises are ordered to be sold and having twice been offered for sale, remain unsold for want of bidders, the court from which the order of sale issued is required, on motion of the plaintiff or defendant, to order a new appraise- ment, and may also order that the land be sold on time as 23 Havens v. Horton, 53 0. S. 24 Gen'l Code, §11894 (R. S. § 342; 25 W. L. B. 37; Omwake v. 5587). Jackson, 5 N. P. 119; but see Dwyer v. Gar lough, 31 0. S. 158. § 374 MERWINE ON REAL ACTIONS. 474 follows: One-third cash in hand, one-third in nine months from the day of sale, and the remaining third in eighteen months from the day of sale, the deferred payments to draw six per cent, interest and to be secured by mortgage on the premises.-"' The subject of the proceedings after judgment is discuss".! elsewhere. There will also in the same place be found a full discussion of the orders of sale, the sheriff's duties, the ap- praisement, the notice of sale, proof of notice, the terms of sale, the sale, confirmation and the deed to the purchaser. Sec. 374. The action to foreclose a mortgage, and the proce- dure incidental to the action. Ordinarily the action is brought for a personal judgment and for a foreclosure of the mortgage to satisfy the debt. In such an action the service of summons must be personal; for a personal judgment can not be secured on constructive service even though the court has jurisdiction over the property. 2 '' The usual form for such petition is, in one cause of action to declare on the note in the ordinary way, and in the second cause of action, on the mortgage given to secure the same. 27 The cause of action setting forth the mortgage, may, by apt and accurate language, adopt the allegations of the cause of action declaring on the note. But the reference and the adop- tion must be clear and definite, and not leave any doubt as to its meaning. 2S The petition should allege the execution and delivery of the mortgage to secure the payment of the note and contain a description of the real estate, and the conditions contained in the defeasance clause of the mortgage, the default making the mortgage absolute, the date of the filing of the mortgage with the recorder for record, the date of the recording thereof, and the volume and page of the record thereof, and also a prayer for personal judgment and a foreclosure of the mortgage. Where the service is constructive or in case no personal judgment is sought, the petition need contain only one cause --<;,.„■] Code, S 11711 ( K. S. § tion and for forms for all of the 5417): see Brown v. Insurance Co.. procedure in sale of real estate by G C. C. 62. foreclosure of mortgage on real 2eGiddings v. Barney, 31 0. S. estate 80. - s 1 Kinkead's Code Pleading, 27 See No. :;i)7 for form of peti- § titi. 475 LAW AND PROCEDURE TO FORECLOSE MORTGAGE. § 374 of action. In such case, the prayer is that the court may find the amount due plaintiff, and that the mortgage may be foreclosed and the real estate therein described sold to satisfy the amount so found due. Every one claiming an adverse interest in the real estate should be made a party with the allegation as in the foreclosure of other liens.-" The wife of the mortgagor who does not si^n the mortgage .should be made a party defendnnt, so that she can come into the case by answer and ask that dower be assigned her in the real estate, or that the real estate may be sold free of her dower, and that she be endowed in money out of the pro- ceeds of the sale. A mortgage given for the purchase money need not be executed by the wife. She has no right of dower therein as against such mortgage. For full discussion of the procedure as to parties, reference is had to the first chapter of this work. There will be found the law and procedure connected with the issuing and service of summons in the action, how defendants may voluntarily enter their appearance to the action, how service of summons may be had upon residents of the county and non-residents of the county who are residents of the State, how service of summons is had on non-residents of the State by publication and by copj^ of the petition, how infants are served with sum- mons and are defended by guardians ad litem appointed by court and the conduct of such defense, how insane persons are defended by trustees appointed by the court and how all of the steps must be taken in order to give the court the power to hear and determine the rights of the parties to the action. 29 See § 60, judgments and executions. FORMS. PROCEDURE BY WHICH MORTGAGE IS FORECLOSED. Forms. Forms. 307. Petition on foreclosure of real estate mortgage. The precipe. m 321. The summons in such action and the sheriff's return of the same. Motion for the appointment 322. of a trustee to defend for an insane person. Affidavit in proof of insanity of defendant. 323. Order appointing trustee to defend for an insane per- son. Answer of trustee for insane 324. defendant. Decree in foreclosure. Order of sale from the clerk to the sheriff. The appointment of apprais- ers and their oath. Appraiser's report. 325. Proof of publication of notice of sale of real estate. The legal notice of sale of real estate. 326. The sheriff's return of his proceedings in sale of real estate in foreclosure of mortgage. 308. 309. 310. 311. 312. 313. 314. 315. 31G. 317. 318. 319. 320. Entry confirming sheriff's sale of real estate, order- ing deed and distributing proceeds of sale. Sheriff's deed of real estate to purchaser thereof in foreclosure of real estate mortgage. Petition for foreclosure of mortgage where a grantee in deed assumes the mort- gage and agrees to pay it. Petition for foreclosure of mortgage where successive grantees in subsequent deeds assume the mortgage and note and agree to pay the same as a part of the consideration thereof. Petition for reformation of a mortgage, foreclosure of same and for the mar- shaling of liens. Petition to declare a deed a mortgage and for a fore- closure of the same. No. 307. Petition for foreclosure of real estate mortgage. Court of Common Pleas, County, Ohio. H. S. B. and J. E. B., Plaintiffs, vs. J. G. T. and V. T., Defendants. No Petition. 1. First cause of action. Plaintiffs say that on the - - day of the defend- ants, J. G. T. and V. T., made and delivered to the plaintiffs their 476 477 FORMS. promissory note of that date, a copy of which is as follows: (Here copy note). _ There are no credits or indorsements on said note. The said H. S B. and J. E. B., plaintiffs, are one and the same persons as H. S. and J. E. B. to whose order, by initial letters, said note was payable. Plaintiffs sav that they are still the owners and holder of said note, and that there is due them thereon from the defendants, J. G. T. and V T the sum of $ with interest on said sum at ■ per cent. from the d ay of , 19- to the day of , 19-, together with interest on the sum of $ at per cent, from ( i9_ and per cent, on $ from said , 19_. xo interest has been paid on said note. 2. Second Cause of Action. For a second cause of action against said defendants, the plaintiffs adopt so much of the first cause of action as is contained between the words "Plaintiffs say that on the day of , 19—," in the first line therein, to and including the words, "No interest has been paid on said note," in the last line therein, the same as if fully re- written herein, and say that the defendants, J. G. T. and V. T., on the day of 19—, to secure the payment of said promissory note set forth in said 'first cause of action herein, executed and delivered to plaintiffs, their heirs and assigns forever, the following described lands and tenements situate in the county of , State of and in the city of , and was bounded and described as follows: (Here insert description of real estate). Plaintiffs further say that said mortgage deed contains a con- dition in substance that if the said J. G. T. and V. T. should default in the payment of interest on said note or any part thereof, for thirty days after the same became due and payable, the principal and all accrued interest should thereby become due and payable: and that if said J. G. T. and V. T. should default in the payment of said interest according to the tenor and effect thereof, then said mortgage deed should become void, otherwise to be and remain m full force and virtue in law. Plaintiffs further say that by reason of the failure of defendants J G T and V. T. to pav the interest on said note when the same became due and payable or within thirty days thereafter, the said mortgage deed has become absolute; that on the day of 19 _ a t — o'clock — m.. of said day, said mortgage was delivered to the recorder of said county for record and was by him dub- recorded on the day of , 19-, in Vol. — - of the Record of Mortgages, at page thereof of said records Said mortgage contained thereon, duly cancelled United States Internal Revenue Stamps to the amount of cents. Wherefore plaintiffs pray judgment against said defendants. J. G. T. and V. T, for said sum of $ , with interest thereon at per cent, from the — day of , 19 . to e day f 19 . together with interest at P er C e n t. on $ from , 19 , and with interest at MERWINE ON REAL ACTIONS. 478 per cent, on $ from the day of , 19 ; that said mortgage deed may be foreclosed, that said premises may be ordered sold, the proceeds applied in the payment of said debt, and for such other and further relief as equity and the nature of the case may require. Attorneys for Plaintiffs. Petition should be verified as in other cases. No. 308. The Precipe. To the Clerk: Issue summons in the above action for the defendants, J. G. T. and V. T., returnable according to law. Indorse "an action upon prom- issory note and foreclosure of mortgage, amount claimed $ , with interest thereon at per cent, from , 19 , to , 19 , and interest on said sum at per cent, from , 19 , and with interest on $ at per cent, from , 19 , and for equitable relief." Attorneys for Plaintiff. No. 309. The summons in such actions and the sheriff's return of the same. The State of Ohio, — County, ss.: To the Sheriff of said County, Greeting: You are commanded to notify J. G. T. and V. T. that they have been sued by H. S. B. and J. E. B. in the Court of Common Pleas of County, and that unless they answer by the day of , in the year of our Lord one thousand nine hundred , the petition of said plaintiffs against them filed in the clerk's office of said county, such petition will be taken as true and judgment rendered accordingly. You will make due return of this summons, on the day of , in the year of our Lord one thousand nine hundred , Witness my hand and seal of said court, this day of , in the year of our Lord one thousand nine hundred . J. W. M., Clerk of Common Pleas, County. Sheriff's Service of Summons. The State of Ohio, County, ss.: Received this writ in the year of our Lord one thousand nine hundred ; — , at o'clock — u., and pursuant to its command, on , in the year of our Lord one thousand nine hundred , I served the same, leaving a true and duly certi- fied copy of this writ with all the indorsements thereon at the 479 FORMS. usual place of residence of each of the following within named de- fendants, J. G. T. and V. T. C. A. P., Sheriff. No. 310. Motion for appointment of a trustee to defend for an insane defendant. Conn of Common Pleas, County, Ohio. No. H. S. B. and J. E. B., Plaintiffs, vs. J. G. T. and V. T., Defendant Now come the plaintiffs by their attorney and move the court, for the appointment of a trustee herein to defend this action on behalf of the defendant, J. G. T.; for the reason that said defendant, J. G. T., is insane and has no legally appointed guardian to defend this action for him. No. 311. Affidavit in proof of insanity of defendant. The State of Ohio, County, ss.: E. W. S., being first duly sworn, says that he is a regular prac- ticing physician and engaged in the practice of medicine in the City of , Ohio; that he has been the physician of the defendant, J. G. T., for some time past and has observed the mental and physical condition of the said J. G. T. This affiant says that at the present time the mind of him, the said J. G. T., is in a state of , and that the same is not possessed of sufficient vigor to defend properly a lawsuit of any kind whatever. E - W " S - Verified as in other cases. No. 312. Order appointing trustee to defend for an insane person. Court of Common Pleas, County, Ohio. H. S. B. and J. E. B., Plaintiffs, No. vs. J. G. T. and V. T., Defendants. This cause came on to be heard upon the application for the ap- pointment of a trustee for the defendant, J. G. T., to defend this action for him and on his behalf was submitted to the court, was argued by counsel and heard upon the testimony, and the court finds that it. is necessary that such trustee be appointed and sustains said motion. It is ordered, adjudged and decreed that M. L. B. be. and he is MERWINE ON REAL ACTIONS. 480 hereby appointed a trustee to defend this action for the defendant, J. G. T. No. 313. Answer of trustee for an insane defendant. Coubt of Common Pleas, County, Ohio. H. S. B. and J. E. B. ( Plaintiffs, vs. No. . J. G. T. and V. T., * Defendants. Now comes , heretofore appointed herein for the purpose of conducting this defense for the defendant, J. G. T., and for his answer as such trustee herein says, that he has no knowledge of the facts and allegations contained in the petition, and for want of such knowledge denies each and every allegation contained therein and demands proof of the same. Answer should be verified as in other cases. No. 314. Decree in foreclosure. Court of Common Pleas, County, Ohio. H. S. B. and J. E. B., Plaintiffs, vs. No. . J. G. T. and V. T., Defendants. This day this cause came on to be heard on the petition of the plaintiffs, the answer of M. L. B., as trustee for J. G. T., one of the defendants herein, and the evidence; trial was had, and the cause was submitted to the court without the intervention of a jury; on con- sideration whereof the court finds on the issues joined between the plaintiffs and M. L. B., as trustee for J. G. T., in favor of the plain- tiffs; the court further finds that the defendants, said J. G. T. and V. T., were each duly and legally served with summons and are in default for answer or demurrer, and that the allegations of the petition are by them confessed to be true; the court further finds that said defendants, J. G. T. and V. T., duly executed and delivered to plaintiffs the promissory note set forth in the petition, and in the manner set forth in the petition; that no payments have been made on the said note by either of the defendants, or by anyone for them, and that there are no credits thereon; that said defendants were in default for the first installment of interest for a period of more than thirty days, and that the entire principal and interest became due and payable , 19 . The court further finds that the said H. S. and J. E. B., named as payees in said promissory note, by initial letters of their names, are the same persons as H. S. B. and 481 FORMS. J. E. B., the plaintiffs herein; and that there is now due and payable to said plaintiffs from the defendants, J. G. T. and V. T., to the date of this decree ( , 19 ), on said note in the petition described, the total sum of $ , it being the entire original principal of $ , with interest thereon as specified and allowed in said note. The court further finds that in order to secure the payment of said promissory note in the petition set forth, the defendants, J. G. T. and V. T., who is the wife of said J. G. T., executed and delivered to the plaintiffs herein their certain mortgage deed as in the petition described, and on the premises therein described, as is fully set out and alleged in said petition; that said mortgage was duly recorded in Vol. No. , at page , of the Record of Mortgages of County, Ohio, and is a good and valid lien on the premises described in the petition, and by reason of the failure to pay said promissory note according to its tenor and effect, the conditions of said mortgage have been broken and the same has become absolute. It is therefore considered by the court that the plaintiffs, H. S. B. and J. E. B., recover from the defendants, J. G. T. and V. T., the said sum of $ and their costs herein expended; that said sum of $ bear interest from the date of this judgment and decree ( , 19 ), at the rate of per cent, per annum until paid; and that if not paid within three days, execution issue therefor. And it is further ordered, adjudged and decreed that unless the defendants, J. G. T. and V. T., shall, within three clays from the entry of this decree, pay, or cause to be paid to the clerk of tlrs court the costs of this case, and to the plaintiffs herein the said sum found due as aforesaid, with interest thereon at per cent, per annum from the day of , 19 , then the equity of redemption of the said defendants, J. G. T. and V. T., shall be foreclosed, and said premises shall be sold, and an order of sale issue to the sheriff of County, Ohio, directing him to appraise, advertise and sell said premises as upon execution free and clear of any dower of the said V. T., and report his proceedings to this court for further order; and upon application of plaintiffs and for good cause shown it is further ordered and decreed that advertisement of sale in a German newspaper be hereby dispensed with. No. 315. Order of sale. The State of Ohio, County, ss.: To the Sheriff of said County, Greeting: Whereas, At a term of the Court of Common Pleas, held at , in and for said county, on the day of , A. D. one thousand nine hundred , in the cause of H. S. B. et al. plaintiffs, and J. G. T. et ah defendants, it was ordered and decreed as follows, to-wit: That the plaintiffs, H. S. B. and J. E. B., recover from the defend- ants, J. G. T. and V. T., the said sum of $ , and their costs MEKWTNE ON REAL ACTIONS. 482 herein expended; that said sum of $ bear interest from the date of this judgment and decree ( , 19 ), at the rate of per cent, per annum until paid, and that if not paid within three days that execution issue therefor, and it is further ordered, adjudged and decreed that unless the defendants, J. G. T. and V. T., shall, within three days from the entry of this decree pay, or cause to be paid to the clerk of this court the costs of this case, and to the plaintiffs herein the said sum so found due as aforesaid with inter- est thereon at per cent, per annum from the day of , 19 , then the equity of redemption of the said defendants, J. G. T. and V. T., shall be foreclosed and said premises shall be sold, and an order of sale issue to the sheriff of County, Ohio, directing him to appraise, advertise and sell said premises as upon execution, free and clear from any dower of the said V. T., and report his proceedings to this court for further order, the following described lands and tenements situated in the County of , in the State of Ohio and in the of . and bounded and described as follows: (Here insert description of premises). We Therefore Command You, That you proceed to carry said order, judgment and decree into execution agreeably to the tenor thereof, and that you expose to sale the above described real estate, under the statute regulating sales on execution, and that you apply the pioceeds of such sale in satisfaction of said judgment and decree, with- costs and interest, as specified therein; and that you make report of your proceedings herein to our Court of Common Pleas within sixty days from the date hereof, and bring this order with you. And I certify, under seal of court, that the description of prop- erty herein is correctly copied from the records of this case on file in this office. Witness my signature as clerk of our said Court of Common Pleas, and the seal of said court, at , Ohio, this day of , A. D. one thousand nine hundred J. W. M., Clerk. No. 316. The appointment of appraisers and oath of ap- praisers. The State of Ohio, County, ss.: To L. D. H.. F. C. M. and C. A. D.. freeholders of County. State of Ohio: Whebeas, on the day of . A. D. 19 , H. S. B. et ah filed in the Common Pleas Court of said County, a petition, vs. J. G. T., et al. praying said court for an order to sell certain real estate described in said pei^-jn, situate in the County of , and State of Ohio, and of . (Here insert description of real estate.) A\:> Whebeas, afterward, to-wit: at the term of said court, A. D. 19 , such proceedings were had upon paid petition by said court, that the sheriff of County, was ordered to sell 4bo FORMS. said real estate, as upon judgments and executions at law. Now, therefore, according to the statute in such cases made and provided, I do hereby call and appoint you, the said L. U. B. and F. C. M. and C. A. D., an inquest, and do require you, on oath, forthwith to view, estimate and appraise the real value of said premises, in money, and return to me your doings, under your hands and seals. Given under my hand and seal, this day of , A. D. 19 . C. A. P., Sheriff. (Seal.) Personally appeared before me, C. A. P., sheriff of County, as aforesaid, the above named L. D. B., F. C. M. and C. A. D., ap- praisers aforesaid, who are judicious, disinterested freeholders, and citizens of said County of , and were personally sworn accord- ing to law, to discharge the duties of said appointment. Witness my hand and seal, this day of , A. D. 19 . C. A. P., Sheriff, (Seal.) No. 317. Appraiser's report. To C. A. P., Sheriff of County, Ohio, as aforesaid: In pursuance of the foregoing appointment, we have proceeded to view the real estate and premises described, and from actual view of the same, we do estimate the real value thereof in money to be $ • Given under our hands and seals, this day of , A. D. 19 . L. D. B. (Seal.) F. C. M. (Seal.) C. A. D. (Seal.) No. 318. Proof of publication. State of Ohio, County, ss.: D. E. D., cashier for The , a newspaper published at > County, Ohio, personally appeared and made oath that the attached printed advertisement was published for consecutive weeks in said newspaper from and after , 19 . and that said paper is of general circulation in said county and State. D. E. D. * Subscribed and sworn to, this day of , 19 . N. H. R., Notary Public in and for County. Ohio. No. 319. Legal notice of sale of real estate. Court ok Common Pleas. County, Ohio. H. S. B. and J. E. B., Plaintiffs. vs. No. . J. G. T. and V. T.. Defendants. In pursuance of an order of sale from said court to me directed, I will offer for sale at public auction at the door of the court house MERWINE ON REAL ACTIONS. 484 in the city of , Ohio, on , the day of , A. D. 19 , at o'clock — m.. the following described real estate, situate in the County of , and State of Ohio, and in the of , and bounded and described as follows, to-wit: (Here insert description of real estate). Said property is located and known as No. , Ave., . Appraised at $ . Terms of sale, cash. C. A. P., Sheriff of County, Ohio. K. M. and S., Plaintiffs' Attorneys. No. 320. Sheriff's return. The State of Ohio, County, ss.: In obedience to the command of the order of sale hereto annexed, I did, on the day of , A. D. one thousand nine hundred , summon L. D. B., F. C. M. and C. A. C, three disinterested freeholders, residents of said county, who were by me duly sworn to impartially appraise the lands and tenements therein described, upon actual view, and afterward, on the day of , A D. one thousand nine hundred , said appraisers returned to me, under their hands and seals, that they did, upon actual view of the premises, estimate and impartially appraise the real value in money of the same at % . A certified copy of said appraisal I forth- with deposited in the office of the clerk of the Court of Common Pleas of said county. And on the day of , A. D. one thousand nine hundred , I caused to be advertised in the (a newspaper printed and published and of general circula- tion in County, Ohio), said lands and tenements to be sold at public sale at the door of the court house of said county, on the day of , A. D. one thousand nine hundred , at o'clock — m., of said day. And having advertised the said lands and tenements for more than thirty days previous to the day of sale, to-wit: five consecutive weeks on the same day of the week in each week; and in pursuance of said notice I did, on said day of , A. D. one thousand nine hundred , at the time and place above mentioned, proceed to offer said lands and tenements at public sale, at the door of said court house, and then and there came H. G. B. and J. E. B., who bid for the same the sum of % , and said sum being more than two-thirds of the appraised value thereof, the said H. S. B. and J. E. B. being the highest and best bidders therefor, I then and there publicly sold and struck off said lands and tenements to them for said sum of $ . C. A. P., Sheriff. 485 FORMS. No. 321. Entry confirming sale, ordering deed and distrib- uting of funds of sale. Court of Common Pleas, county, Ohio. H. S. B. and J. E. B., Plaintiffs, vs. No. . J. G. T. and V. T., Defendants. This day this cause Game on to be heard on motion of the plaintiffs for confirmation of sale, made under the former order of this court, and on the plaintiffs' producing the sheriff's return of the sale made under said former order of this court, and the court, on careful examination thereof, and of all of the proceedings of said sheriff, and the evidence adduced, being satisfied that the same have been in all respects in conformity to law and the former orders of this court, it is ordered that said proceedings and the sale be, and they are hereby approved and confirmed. It is further ordered that said sheriff convey to the said H. S. B. and J. E. B. a good and sufficient deed to said property according to law; and that said H. S. and J. E. B. be, and they are nereoy subrogated to all the rights of the lienholders of said premises, so far as may be necessary for the protection of their title, and a writ of possession is awarded to put them in possession of said premises. It is therefore ordered that the clerk cause satisfaction of tne mortgage herein sued upon to be entered upon the records thereof in the office of the recorder of County, Ohio. It is further ordered that M. L. B., as trustee of J. G. T., be, and he is hereby allowed the sum of $ as compensation for his services as such trustee herein, the same to be paid out of the proceeds of said sale. And the court coming now to distribute the proceeds of said sale, amounting to $ , it is ordered that the sheriff, out of the money in his hands, pay First: To the treasurer of this county the general taxes and penalties due on said premises, amounting to $ . Second: The treasurer of this county the amount of the street assessment and. interest thereon, due and payable, amounting to Third: The costs herein taxed at $ . Fourth: To L. M. B. the fee herein allowed him for services as trustee $• . Fifth: To H. S. B. and J. E. B. to be applied upon their judg- ment herein rendered, the balance, $ . MERWINE ON REAL ACTIONS. 486 No. 322. Sheriff's deed in foreclosure. To all Persons to whom, these Presents shall come. Greeting: Whereas, on the day of , 19- , H. S. B. and J. E. B., plaintiffs, filed their certain petition and then and thereby com- menced a civil action in the Court of Common Pleas of County, Ohio, against J. G. T. et al, and numbered on the docket of said court as case No. , praying therein, among other things, for the sale of certain real estate in said petition and hereinafter described ; and Whereas, such proceedings were had in said action, that by the consideration and judgment of said court on the day of , 19 , at the term, 19 , said H. S. B. and J. E. B. recov- ered a judgment against the said J. G. T. et al, for the sum of $ and costs of suit; and Whereas, it was then and there further ordered, adjudged and decreed by said court in said action, that unless the said defendants, J. G. T. et al, should pay the costs of said suit, and to said H. S. B. and J. E. B. the amount so found due within three days from the entry of said decree, said premises should be sold and an order of sale should issue therefor to the sheriff of said County of ■ — ■ — , com- manding him that he should cause the lands and tenements in said petition and order mentioned and hereinafter described, to be ap- praised, advertised and sold according to law, and return his proceed- ings to said court; and Whereas, afterwards, on the day of , 19 , in pursuance of said order and judgment of said court mounded thereon, an order of sale issued from said court in said cause directed to C. A. P., sheriff of County, Ohio, commanding him to exe- cute said order, and in all things to be governed by the provisions of the statute in such case made and provided, and of said order with his proceedings thereon he should make due return; and Whereas I, C. A. P., sheriff aforesaid, having caused said premises to be appraised and a copy of the appraisement to be duly filed in the office of the clerk of said court, and having advertised the time and place of selling the same in , a newspaper printed and of general circulation in said county, for a period of thirty days prior to the said sale, and otherwise complied with said order and the provisions of the statute in such cases made and provided, did, on the - - day of , 19 , at the door of the court house in said county, at o'clock — m. of said day, expose to sale at public auction the premises hereinafter mentioned, and thereupon — , having bid for the said premises the sum of % , and said sum being the highest and best bid offered for the same, and being more than two-thirds the appraised value thereof, the said prem- ises were then and there struck off to him; and Whebeas, the said court, at its term, 19 , having examined the proceedings aforesaid in the premises under said order of sale, and being satisfied that the sale had been made in all respects 487 FORMS. in pursuance to said judgment and order of sale, and in accordance with the provisions and requisitions of the statute regulating such sales, did order that said sale should he confirmed, and that the said sheriff of County, Ohio, should convey the said premises by deed in lee simple to the said , Now Know Ye, That 1, the said C. A. P., sheriff of County, Ohio, as aforesaid, by virtue of said judgment, order of sale, sale and confirmation, and of the rtatute for such cases made and provided, and for and in consideration of the premises herein, and the' sum of $ , which I acknowledge to have received from the purchaser above named, do hereby grant, sell and convey unto him, the said , his heirs and assigns, forever the following described real estate situate in the County of , State of Ohio, and in the ■ of , (here insert description of real estate), together with all the privileges and appurtenances thereto belonging, and all the right, title and interest of the said J. G. T. et al. and of all other parties to said suit of and to the same. To Have ami to Hold the premises aforesaid unto the said , his heirs and assigns forever, as fully and completely as the said C. A. P., sheriff of County, Ohio, by virtue of said judgment, order of sale, sale and confirmation and of the statute made and provided for such cases, might or should sell and convey the same. In Witness Whereof, I have hereunto set my hand and seal, this day of , 19 . , ( Seal. ) Sheriff of County, Ohio. State of Ohio, County, ss. : Personally appeared before me, a notary public within the afore- said county, the above named C. A. P., sheriff of County, Ohio, the grantor in the above deed of conveyance, who acknowl- edged the signing and sealing of the same to be his voluntary act and deed for the uses and purposes therein mentioned. In Witness Whereof. I have hereunto set my hand and seal, this day of , 19 , (Seal.) Xotary Public. County. Ohio. No. 323. Petition for foreclosure where party assumes mort- gage and agrees to pay it. Court of Common Pleas. County. Ohio. H. T. C, Plaintiff, vs. No. . M. A. R., and S. R., Petition, her husband, Defendants. 1. First Cause of Action: Plaintiff fays that M. A. R. is indebted to him in the sum of $ , with interest thereon at the rate of per cent, per MEBWINE OX REAL ACTIONS. 488 annum, payable annually, from the day of , 19- that on or about the said day of , 19 , one J. M. L., as assignee of S. R. and M. A. R., in consideration of the sum of $ , conveyed to said M. A. R. the following described real estate, sit- uated in the County of , in the State of Ohio, and in the ; of , and bounded and described as follows-. (Here describe real estate). Plaintiff further says that said conveyance was, among other things, made "subject to the mortgage of H. T. C, given by one A. L. R., dated , 19 , which is assumed by the grantee herein, to the amount of $ , being the amount due said H. T. C. from the proceeds of this sale;" and that said agreement to assume and pay said mortgage was made as a part of the said consideration for the purchase price of said real estate. There have been no payments made upon said amount so assumed, and there is due and payable to plaintiff from the defendant, M. A. R., on her assumption of said indebtedness, the sum of $ , with interest thereon at per cent, per annum, payable annually from the day of , 19 , which he claims. 2. Second Cause of Action: For a second cause of action herein, plaintiff says that on or about the day of , 19 , one H. A. L. and W. F. B., for a valuable consideration, sold and conveyed, by deed in fee simple, to S. R. and M. A. R., the following described real estate, and being the real estate described in the first cause of action, situated in the County of , in the State of Ohio, and in the of , to-wit: (Here describe it). Plaintiff alleges that on the — ■ — day of ( 19 , one A. L. R., who was then the owner of the aforesaid real estate, in order to secure the payment of a certain promissory note given for the purchase money of said real estate, dated on said day of , 19 , for the sum of $ , bearing interest at the rate of per cent, per annum, payable annually, and due and payable in years after the date thereof, executed and delivered to plaintiff his certain mortgage deed, and thereby conveyed to plaintiff a certain parcel of real estate of which the real estate above herein described formed a part. Paid mortgage had a condition therein written, that if said note should not be paid when due as aforesaid, said mortgage deed should become absolute. Said note has not been paid and said mortgage deed has become absolute. Said mortgage was left with the recorder of County, Ohio, for record on the day of , 19 , at o'clock m. of said day, and was by said recorder duly recorded in Mortgage Record , pages , of the County, Ohio records. Plaintiff alleges that at the time of the conveyance of said prem- ises by the said L. and the said B. to the said S. R. and M. A. R., the said S. R. and M. A. R., agreed in said deed to assume, and 489 FORMS. they did assume, the payment of $- of said mortgage debt, and that said assumption of said part of said mortgage was made as a part of the purchase price of said premises; that on the day of , 19 , said S. R. and M. A. R., by deed of assign- ment, conveyed said premises with other real estate to J. M. L., as assignee in trust for the benefit of their creditors, and thereafter, said real estate was, by said assignee, under an order oi the Probate Court of this county, sold to the defendant, M. A. R., for the sum of $ , and said real estate was, on or about the day of , 19 -, by the deed of said assignee, conveyed to her, and in said deed, the said M. A. R. agreed to assume, and did assume, as a part of the said consideration for said sale and conveyance, the sum of $ of the mortgage indebtedness on said real estate as above herein set out, together with the interest thereon, at the rate of per cent., payable annually from said day of 19- Said mortgage is a valid and subsisting lien on the real estate above described for said sum of $ , with interest on said sum at the rate of per cent, per annum, payable annually from the day of , 19 , and said defendant has failed to pay the same. Wherefore, plaintiff prays judgment for $ , with interest at per cent, annually from the day of , 19 — — ; that said mortgage be foreclosed, and said premises sold, as upon execution, to satisfy the judgment so to be obtained, and tor such other and further relief as equity and the nature of the case may require. , Attorneys for Plaintiff. The petition should be verified. No. 324. Petition for foreclosure of a mortgage where the mortgage has been assumed by a previous grantee of real estate. Court of Common Pleas, County, Ohio. M. E. T., Plaintiff, vs. No. Petition. F. N. B., H. R. F., J. C, C. P. L. B., Jr., W. D. D., G. H.. H. C. T. and E. M., as administrators of the estate of , deceased, Defendants. No^v comes M. E. T., plaintiff, and for her petition herein says: 1. For her first cause of action herein, plaintiff says that on the day of , , the defendants, G. L. H. and S. E. H., executed and delivered to one J. N. C. their joint and several MERWINE ON REAL ACTIONS. 490 promissory note, of which note the following is a copy, with all the credits and indorsements thereon, to-wit: (Here copy note). Said note is endorsed as follows: "Pay M. E. T., or order, without recourse on me, J. N. C," and credited as follows: (Here copy credits). Said note is secured by mortgage on the real estate last described in the cause of action herein. At the time of the execu- tion and delivery of said note, the said G. L. H. and S. E. H. were the owners of said real estate, and on the day of , , by deed of general warranty, sold and conveyed said real estate to the defendant J. C, who thereupon, by agreement in writiug set forth in said deed, agreed by and with the said G. L. H. and S. E. H., their heirs and assigns, as part of the consideration thereof, to assume, and he did assume, the payment of the principal and all interest on said note from the day of , , together with all the assessments which were a lien on said premises for the improvement of in said city. Said deed is recorded in D. B. - t page of the deed records of said county. ■ On the day of , , the said J. C. died intestate, and the said H. T. C. and E. D. were, -.n the ■ day of , by the Probate Court of said county, duly appointed administrators of his said estate, and said administrators thereupon duly qualified and entered upon their duties as such administrators. On the day of , the said J. C. and his wife, ■ , by deed of general warranty, sold and conveyed said real estate last described in said cause of action herein, to the defendants, G. H. and W. D. D., who thereupon, by agreement in writing set forth in said deed, agreed by and with the said J. C., his heirs and assigns, as part of the consideration thereof, to assume, and they did assume, the payment of the principal of said note and all interest thereon from the day of , together with all the assessments that were a lien on said premises for the improvement of Street in said city. Said deed was duly recorded in D. B., page of the deed records of said county. On the day of , the said W. D. D. and M. J. D., his wife, and the said G. H. and M. W. H., hi3 wife, by deed of general warranty, sold and conveyed the real estate last described in said — cause of action herein, to the defendant, C. P. L. B., Jr., who thereupon by agreement in writing set forth in said deed, agreed by and with the said G. H. and W. D. D., their heirs and assigns, as a part of the consideration thereof, to assume and he did assume thr- payment of the principal and interest on said note r rom and after the day of , together with all the assessments which were a lien on said lot for the improvement of Street in said city. Said deed was duly recorded in D. B. , page of the deed records of said county. On the day of , said C. P. L. B., Jr., by deed of general warranty, sold and conveyed the real estate last described in said cause of action herein, to the defendant F. N. B. 491 FORMS. who thereupon, hy agreement in writing set forth in said deed, agreed by and with the said C. P. L. B., Jr., his heirs and assigns, as a part of the consideration thereof, to assume and he did assume the payment of the principal and all interest on said note, together with all the assessments that were a lien on said premises for the im- provement of Street in said city. Said deed was recorded in D. B. , page of the deed records of said county. Said defendant, F. N. B., is the present owner of said real estate last herein described. Plaintiff is the legal owner and holder of said note, and there is due her thereon from the defendant F. N. B., as principal, and the said H. C. T. and E. D., as administrators of the estate of J. C, deceased, W. D. D., G. H., C. P. L. B., Jr., G. L. H. and S. E. H., as sureties, the sum of $ with interest on said sum from the day of , at the rate of per cent, per annum, payable annually. 2. For a cause of action herein, plaintiff says that at the time of the execution and delivery of the note described in said first cause of action herein, and to secure the payment of the same, the defendants, G. L. H. and S. E. H., executed and delivered to the said J. N. C. their certain mortgage deed and thereby conveyed to him, his heirs and assigns forever, the following described real estate in the County of , in the State of Ohio, and in the City of : (Here describe it). Said mortgage contained a condition, that if the said G. L. H. and S. E. H. should pay, or cause to be paid to said J. N. C, Irs heirs and assigns, the note described in the first cause of action herein, when the same should become due, with the interest on the same, then said mortgage should become void, otherwise to be and remain in full force and virtue in law forever. By reason of the non-payment of said promissory note in said first cause of action herein, and the interest due thereon, the said mortgage has become absolute. On the day of , at o'clock m., said mortgage deed was delivered to the recorder of said — ■ — County, Ohio, for record, and was duly recorded on the day of , in Mortgage Record , pp. of said county. On the clay of , said mortgage was, for value received, duly assigned by the said J. N. C. to the plaintiff by an assignment in writing, which assignment was, by the recorder of said county, duly entered upon the records of said mortgage accord- ing to law. The defendant, L. C. B., wife of the defendant. F. N. B., as against said mortgage, is not entitled to dower in said real estate last herein described. Said defendant, H. R. B., has, or claims to have, some lien or interest in paid premises, of the nature and amount of which plaintiff is not informed, but she avers that said claim or lien if any, is sub- ordinate to her mortgage lien. MERWLNE ON REAL ACTIONS. 'd02 Wherefore plaintiff prays that said defendant, H. R. F., bo re- quired to set forth her said claim on said premises or be forever barred; that she may have judgment against said F. N. B., C. P. L B Jr W. D. D., G. H., H. C. T., and E. D., as administrators of the estate of J. C., deceased, G. L. H. and S. E. H., for said sum of $ with interest thereon from the ■ day of , at per cent, per annum, payable annually; that said mortgage deed be foreclosed, said premises sold as upon execution, and the proceeds of said sale be paid upon said mortgage debt, and for such other and further relief as equity and the nature of the case may require. " ■ Attorneys for Plaintiff. Duly verified as in other actions. No. 325. Form for a petition for the reformation of a mort- gage, foreclosure of the same and marshal of liens. Court of Common Pleas, County, Ohio. Plaintiff, vs. and , bis wife, and , Petition. Defendants. 1. First cause of action. Plaintiff says that there is due him from the said , on the promissory note of said , the sum of $ , with in- terest from the day of , 19 , and of which promissory note the following is a copy with all the credits and in- dorsements thereon, to-wit: (Here set forth a copy of the note, with all credits and indorsements thereon). Said note is endorsed and credited as follows, to-wit: (Here allege the same as they appear on the note). 2. Second cause of action. Plaintiff says that to secure payment of the above described promissory note, dated on the day of , 19 , and made by the said payable to the order of the said , plaintiff, as follows: (Here state the time at which said note be- came due by its terms). To secure the payment of said promissory note hereinbefore mentioned, according to the tenor and effect thereof, the said together with his said wife, the defendant, , duly executed, acknowledged and delivered to the plaintiff, the said joining with her said husband in the granting part, the signing and acknowledging thereof, their certain mortgage deed, bearing date on the day of , 19 , and thereby intending to convey to the plaintiff, in fee simple, free from all rights, including that of dower of said in and to the same, the following described lands, tenements and hereditaments, situated 493 FORMS. in the Count y of , and State of Ohio, to-wit: Being lot No. 40 in Downs' Addition to city, as said lot is numbered and delineated in said recorded plat thereof, of record in Plat Book , page , recorder's office, County, Ohio, but by the mutual mistake and inadvertence of all the parties thereto, said mortgage described and conveyed lot Xo. 42 in said Downs' Addition to said city as aforesaid. Said mortgage was delivered to the recorder in the recorder's office of said county for record, according to law, on the day of , 19 , at o'clock, m., and was duly re- corded in book , page , of the records in his said office. Said deed of mortgage has a condition thereunder written that in case the said — should pay or cause to be paid said promis- sory note when and as it should become due, then said deed should be void, otherwise to be and remain in full force. Said note is past due and unpaid and said mortgage has become absolute. The said defendant, , claims to have some claim upon or interest in said above described premises, as does the said de- fendant . Wherefore plaintiff asks judgment against the said defendant, , for the sum of $ , with interest on said sum from the day of , 19 ; also that said mortgage may be reformed and corrected by proper decree of this court, so as to conform to the real intention of said parties, and that when said mortgage is so corrected and so reformed that the same may be foreclosed and said premises sold as upon execution to satisfy said mortgage indebtedness from the said and the judgment by plaintiff so to be obtained, and that the said and be required by appropriate pleadings in this action, to set forth the nature and amount of their respective claims and liens, if any they have, on said real estate, and that the respective said liens and claims of the plaintiffs and said defendant be marshaled and deter- mined and ordered to be paid by the court out of the proceeds of the sale of said real estate in the order of their respective priori- ties, and for such other and further relief as equity and the nature of the case may require. , Attorney for Plaintiff. This petition should be verified as in other actions. (Note: Adapted from Yaple's Code Practice). No. 326. The petition in an action to declare a deed a mort- gage and to foreclose the same. Court of Commox Pleas, County, Ohio. John Doe, Plaintiff, vs. Petition. Richard Roe, Defendant. Plaintiff avers that on the — day of the defend- ant, Richard Roe, was the owner of the following described real MEKWINE ON REAL ACTIONS. 494 estate situate in the County of , in the City of , and in the State of Ohio, to-wit: (Here describe it); that on said day, said defendant being greatly embarrassed in his affairs and desiring to borrow the sum of $ , applied to plaintiff for that purpose, and obtained a loan from him, the said plaintiff, for the sum of $ , due and payable months after date, with in- terest at per cent.; that to secure such loan the defendant executed a deed to said plaintiff for the above described real estate, said deed being absolute in form, but intended by both the parties thereto to stand as security for said loan, and it was made for that purpose; that on the day of plaintiff entered into possession of said real estate under said deed, and has applied the rents and profits thereof to his own use, said rents and profits amounting to the sum of $ ; that the time has expired in which defendant was required to pay and satisfy said sum of money so borrowed as aforesaid, and that by reason of said default said sum has become due, and said mortgage has become absolute. On the day of , 19 , said deed was left for record with the recorder of said county, and was by him duly recorded in Deed Book , page , in the deed records of his office. Wherefore plaintiff prays that an account may be taken of the amount due from said defendant to plaintiff, after deducting the rents and profits aforesaid, and that said deed be declared j, mortgage and that the same may be foreclosed and said real estate sold as upon execution to satisfy the same, and for such other and further relief as equity and the nature of the case may require. Attorney for Plaintiff. Verified as in other cases. CHAPTER XIII. THE LAW AND PROCEDURE BY WHICH REAL ESTATE IS SOLD BY FORECLOSURE OF MECHANIC'S LIEN. Section. 375. The origin and nature of the lien. 370. The right to assert the lien may be waived. 377. The lien for labor and ma- terial furnished for the improvement of real estate. 378. The lien on contiguous lots or separate buildings. 379. Duty of contractor to defend any action brought to en- force lien. when. 380. How lien acquired — Notice to owner of filing lien. 381. Lien for work and labor on roads, streets, sewers and ditches — Liens for same work on an improve- ment pro rata. 382. The owner may require lien- holder to commence suit, when. , 383. Rights and liabilities of exec- utors and married women as to mechanic's liens. 384. Subcontractor's lien; how acquired. 385. Owner to retain subsequent payments on notice. 386. The statement to be filed with reco.der to notify fellow laborers. 387. Pro rata payment of sub- contractors out of subse- Section. quent payments due head contractor. 388. Copy of statement to be furnished to head contrac- tor — His duty— Priority of lien. 389. Remedy of subcontractor when his contractor or the owner refuses to pay. 390. When and how. subcontrac- tor may obtain lien on the property of the owner. 391. Such lien entitled to priority over lien of head contrac- tor — - Assignments, attach- ments, etc. 392. Kfl'ect of collusion and fraud in payment to principal contractor. 393. Service of notice, affidavits, etc. — How made. 394. Remedy of contractors and others where owner sus- pends work without their consent. 395. Laborers shall have other lien on real property of em- ployer — Precedence of lien — When deemed waived — What liens shall have priority. 396. To whom foregoing sections apply — Procedure inciden- tal to the action to fore- close a lien. Sec. 375. The origin and nature of the lien. The lien by which a mechanic or laborer can claim a sale of real estate for the value of the labor and material for the 495 §§376,377 MERW1NE ON REAL ACTIONS. 496 improvement thereof, did not exist at common law. It is purely a creature of the statute.* It is founded in justice, and arises from the principle that the owner of the real estate, having secured the labor and material improving his property, should allow a lien to attach thereto for the payment thereof. An eminent jurist of this State once said that its object was, and is, to obviate the injustice and wrong practiced on la- borers and material men by contractors, in defraudimg them of their just demands after they have performed the labor or furnished the material. It interferes with the honest inten- tions of no man, and merely secures rights that could have been made available by activity and vigilance in the prosecu- tion of remedies that existed before the law. 1 The lien, in its nature, is not obtained by legal proceedings, but is a lien voluntarily conferred by the owner when he hires the mechanic or orders the material. 2 Sec. 376. The right to assert the lien may be waived. This right to place a mechanic's lien on the real estate of another for labor and material furnished for the improvement thereof, like any other similar right, may be waived. It has been held that it may be waived by acts and agreement, al- though he has made no express promise that he will waive the right ; 3 by an agreement, express or implied, that the lien will not be asserted; and 4 by accepting a note in payment of a mechanic's claim for materials furnished and work done. 5 Sec. 377. The lien allowed for labor and material furnished for the improvement of real estate. Every person who does or performs any work or labor upon or furnishes machinery, material or fuel for constructing, altering or repairing a boat or vessel, or other water craft, or for erecting, altering, repairing or removing a house, mill, manufactory, or any furnace or furnace material therein, or other building, appurtenance, fixture, bridge or other struc- * McCune v. Snyder, S 0. D. 316. * Iron, etc., v. Murray, 38 0. S. i Minshall, J., Railway v. Cronin, 323. 1 W. L. B. 315. s Crooks v. Finney, 30 O. S. 57; 2 In re Beck, 11 0. F. D. 449. but see Standard, etc., v. Sowden, s West v. Klotz, 37 0. S. 420. 55 0. S. 332; Bernsdorf v. Hard- way, 7 C. C. 378. 497 REAL ESTATE SOLD BY MECHANIC'S LIEN. §378 tore, or for digging, drilling, boring, operating completing or repairing of any gas well, oil well or any other well, or performs labor in altering, repairing, or constructing any oil derrick, oil tank, oil or gas pipe line, or furnishes tile tor the drainage of any lot or land by virtue of a contract, ex- pressed or implied, with the owner, part owner or lessee ot any interest in real estate or the authorized agent of the owner part owner or lessee of any interest in real estate, shall have a lien to secure payment of the same upon such boat v,ssel or other water craft, or upon such house, mill, furnace manufactory, or other building or appurtenance fix- ture bridge or other structure, or upon such gas well, oil well or any other well, or upon such oil derrick, oil tank, oil or gas pipe line, and upon the material or machinery so furnished, and upon the interest, leasehold or otherwise, of the owner, part owner, or lessee in the lot or land upon which the same may stand, or to which the same may be removed. .,. . , , This lien does not interfere with other liens already at- tached to the land. The owner need not be the owner of the fee and may include a leasehold interest. 7 The lien will be al- lowed where material has been furnished for a house, but used without the consent of the person selling the same for another purpose 8 The lien can not be asserted on the property ot the wife for material furnished to the husband without her consent 9 The lien is not allowed for grading or sodding a lot. 10 Sec. 378. The lien on contiguous lots or separate buildings. When the improvements consist of two or more buildings united together, and situated on the same lot. or contiguous lots or upon separate buildings on contiguous lots, and di- rected under one general contract, it will not be necessary to file a separate lien upon each building for the work don, or material furnished in the erection of such improvements. e Gen'l Code. § 8308 (P, S. § S 131: : but see GenM Code, § 8322 3184) See No. 327 for form for (U.S. § 3192) aio% >- 10 Stitehtenoth v. Rife. 6 C. L. hen. .Chateau v. Thompson 2 . 540 g § 114: Dutro v. Wilson^ 4 0. S. 101. ^ ^ Ed , 4 s Beckel v. Petticrew. G O. S. 24,. os. wi ;•_ 9 Spinning v. Blackburn, 13 0. 0. 5. 2U^. §§379,380 MERW1NE ON REAL ACTIONS. 498 Sec. 379. Duty of a contractor to defend any action brought to enforce lien, when. In all eases where a lien has been filed under the provision of the statutes relating to mechanic's liens, by any person other than the contractor, it is made the duty of the con- tractor to defend any action brought thereupon at his own expense; and during the pendency of such action the owner may withhold from the contractor the amount of money for which such lien shall be filed, and in case of judgment against the owner or his property, upon the lien, he is entitled to deduct from any amount due by him to the contractor the amount of such judgment and costs, and if 'he has settled with the contractor in full, he can recover back from the con- tractor any amount so paid by the owner for which the con- tractor was originally the party liable, 12 and every person, including cestui qui trusts, for whose immediate use, enjoy- ment or benefit any building, erection or improvement is made, will, under the statute, be included in the words owner or proprietor. 13 Sec. 380. How lien acquired — Notice to owner of filing of such mechanic's lien. Such person, in order to obtain such lien, is required within four months from the time of completion of such labor, or furnishing such machinery, material or fuel, to file with the recorder of the county where the labor was performed, or the machinery or the material or fuel furnished, an affidavit containing an itemized statement of the value and amount of such labor, machinery, material or fuel, and a description of any promissory note or notes ^iven for such labor, ma- chinery, material or fuel, or any part thereof, with all credits or offsets thereon, a copy of the contract, if it is in writing, a sir. lenient of the amount and times of payments to be made thereunder and a description of the land on which the gas well, oil well or other wells are situated, or the land on which the house, mill, furnace manufactory, or other building or appurtenance, fixture, bridge or other structure may stand, or to which it may he removed, or on which such tile for drain- "(Wl Code, § 8312 (R. S. § mQen'1 Ode, § 8313 (R. S. § 3184c). 3184f). 499 REAL ESTATE SOLD BY MECHANIC'S LIEN. §381 age purposes may have been used; and tin* same must be re- corded in a separate hook to be kept therefor, and will operate as a lien from the date of the first item of the labor per- formed, or the machinery, material or fuel furnished, upon or toward the property designated in Gen'l Code, §8308 (R. ►S. §3184), anil the interest of the owner in the lot or land upon which the same may stand, or to which it may he removed, for six years from and after the date and of the filing of such attested statement. In any action brought to enforce such lien within that time, the same shall continue in force until the final adjudication thereof; and there shall be no homestead or other exemption against any lien under the provisions of this chapter. Such person filing the affidavit herein provided, must within thirty days thereafter, notify the owner of the prop- erty, his agent or attorney that he claims such lien, and if he fail to do so, the lien so secured shall be null and void. 14 No itemized statement is required when the contract is entire and one amount to be paid for the whole. 15 Articles furnished continuously will furnish a lien from the date of each item furnished, and 1,J the lien dates from the first item of the account, and has priority over liens subsequent to that date. 17 Sec. 381. The lien for work and labor on roads, streets, sewers and ditches — Liens for same work on an improvement pro rata. A person who performs labor or furnishes material for constructing altering or repairing any street, turnpike, road, sidewalk, way. drain, ditch or sewer, by virtue of a private contract between him and the owner of lands abutting thereon or his authorized agent is entitled to have a lien for the pay- ment of the same against the lands of such owner. 18 In order to obtain such lien such person must, within four months from the time of performing the labor or furnishing the material or machinery, file with the recorder of the 14 Gen'l Code, § 8314 (R. S. § is Gen'l Code. §8310 (It. S. § 3185). 3186). Sec X,,. :V2S and following i r ' Davis v. Hi ties, (i ( ). S. 47."«: for forms of procedure from filing Thomas v. Huesman, Hi 0. S. 152. of petition for the sale of the real leHart v. Globe, etc., 37 0. S. 7(1. estate to the delivery of the deed 17 Woodman v. Richardson, 1 (..'. by t he sheriff to the purchaser. C. 191. § 382 MERWINE ON REAL ACTIONS. 500 county where such labor was performed, or material or ma- chinery furnished, an affidavit containing an itemized state- ment of the amount and value thereof, and a description of any promissory note or notes given for the same, or any part thereof, an estimate of the amount chargeable to each front foot along the line of the improvement, and if the contract is made with several of the owners, a description of the land of each, with the number of feet belonging to each abutting on such line, a copy of the contract, if it is in writing, and if not in writing, a statement of the amount and time of pay- ments to be made thereunder, which must be recorded in a separate book to be provided therefor, and which will operate as a lien on the interest of such delinquent in the abutting land from the day of the first item of labor done or material furnished, for one year from and after the filing of such statement, and if an action is brought to enforce the lien within that time, it shall continue in force until finally adjudicated. 19 If liens be obtained by several persons, upon the same job, in the manner prescribed in the foregoing sections of the statute, they will not be entitled to any priority among them- selves, and a lien of any promissory note described in any statement filed as provided in said sections, will take effect from the date of the first items included in it ; all payment on said liens must be made pro rata. 20 Sec. 382. Owner may require lienholder to commence suit, when. The owner of property upon which a lien has been taken to secure any mechanic, laborer, or material man may notify, in writing, the owner of the lien, or his agent or attorney, to commence suit within sixty days; after receiving such written notice the lien shall be null and void, but nothing herein contained shall prevent the claim from being collected as other claims are collected by law. 21 i»Gen'l Code. § 8317 ( R. S. § 3188); Devine v. Taylor, 12 C. C. 3187). 723. aoGen'l Code, §8318 ( R. S. § 21 Gen'l Code, § 8321 (R. S. § 3191). 501 REAL ESTATE SOLD BY MECHANIC'S LIEN. §§383,384 Sec. 383. Rights and liabilities of executors, administrators and married women as to mechanic's liens. Executors and administrators of deceased persons have the same rights and are subject to the same liabilities under this chapter as such owners would enjoy, and be subject to, if alive ; and when a married woman is the owner of the land as is mentioned in Gen 'I Code, § 8308 (R. S. § 3184), or is the owner of lands abutting on a street, etc., as is mentioned in Gen '1 Code, §8316 (B. S. §3186), and has knowledge of any such structure as is mentioned in R. S. §§ 3184 and 3186. the same being done under a contract with the husband of such married woman, and without her express objection, such husband will be deemed and held to be the duly and legally authorized agent of said married woman therein. 22 Sec 384. Subcontractors' lien— How acquired. Any subcontractor, material man, laborer, or mechanic, who has performed labor or furnished material, fuel or machinery, who is performing labor, or furnishing material, fuel or ma- chinery, or who is about to perform labor, or furnish material, fuel or machinery for the construction, alteration, removal or repair of any property, appurtenance or structure, as de- scribed in Gen'l Code, §8308 (R. S. §3184), and Gen'l Code, §8316 (R. S. §3186), or for the construction, improvement or repair of any turnpike, road improvement, sewer, street or other public improvement, or public building provide 1 for in a contract between the owner, or any board, officer or public authority and a principal contractor, and under a con- tract between such subcontractor, material man. laborer or mechanic and a principal contractor or subcontractor, may at the time of beginning to perform such labor or furnish such material, fuel or machinery, or at any time thereafter not to exceed four months from the performance of such labor or the delivery of such machinery, fuel or material, file with the owner, board or officer, or the authorized clerk or agent thereof, a sworn and itemized statement of the amount and value of such labor performed and to be performed, material, fuel or machinery furnished, containing a description of any 22Gen'l Code, § S322 (R. S. § 3192), Hiller v. Hohman, 12 C. C. 216. §§385-387 MERWINExON REAL ACTIONS. 502 promissory uote or notes that may have been given by the principal contractor or subcontractor on account of said labor, machinery or material or any part thereof, with all credits and set-offs thereon. 23 Sec. 385. Owner to retain subsequent payments on notice. Upon receiving the notice required by the preceding sec- tion, such owner, board or office or public authority or author- ized clerk, agent or attorney thereof is required to retain in his hands all subsequent payments from the principal or subcontractor to»secure such claims and the claims and esti- mates of other subcontractors, material men, laborers, me- chanics, or persons furnishing materials to or performing labor for any contractor or subcontractor who may intervene before the next subsequent payment under the contract, or within the ten days thereafter. 24 Sec. 386 The statement to be filed with recorder to notify fellow-laborers. Such subcontractor, material man, mechanic, laborer or person so filing his statement with the owner, board, officer, or authorized clerk or agent or attorney thereof, must, in order to notify his fellow subcontractors, material men, me- chanics and laborers at the same time file a copy thereof with the recorder of the county where such property is situate, which, if he fail to do, the filing of the notice with the owner, board, officer or authorized clerk, agent or attorney thereof will give him no preference over other claimants; and for filing or making any copy of such statement or certificate of the date of such filing the recorder will be entitled to the same fees as are provided by law for similar services in regard to chattel mortga ges. 25 Sec. 387. Pro rata payment of subcontractors out of subse- quent payments due head contractor . All other subcontractors, material men, laborers, mechanics or persons furnishing material, fuel or machinery, who, before 23Gen1 Code, §8324 (R. S. § ^ Gen'l Code, §8325 (R. S. § 3193). Aa to the notice to be 3194). Tolheiss v. James, 25 VV. served on a corporation, see Dunn L. I!. '277. v. Rankin, 27 O. S. 132, 25 Geri'] Code, § 8326 (R. S. § 3195). 503 rem, estate soi.o by mechanic's lien. §388 the first subsequent paymen s Call due after the deposit of a copy of such statement with the county recorder by any sub- contractor, material or machinery mlan, laborer, or person Furnishing material, or within ten days thereafter, iile with such owner, board, officer or authorized clerk, agent or at- torney thereof, a sworn and itemized statement or estimate of the labor, machinery, fuel or material furnished or to be furnished by them under a contract with a principal or .sub- contractor, containing a description of any promissory note or notes given for the same or any part thereof, will be paid pro rata with the person first so filing such statement and with each other, out of said first and other subsequent payments so falling due; but upon failure so to do. they can have no recourse against the owner, board, officer, or the clerk or agent thereof for any prior payments made under his contract with his head contractor or subcontractor. 20 Sec. 388. Copy of statement to be furnished to head con- tractor—His duty— Priority of liens. The owner, board, officer or clerk, agent or attorney thereof, upon the receipt of such statement must, or the lien claimant, his agent or attorney, in the name of such owner, board or officer, may furnish the principal contractor or subcontractor with a copy thereof within five days after receiving the same, and if such principal or subcontractor fail, within five days after such receipt by him, to notify in writing such owner, board, officer or clerk, a"-ent or attorney thereof of his inten- tion to dispute such claim, he will be considered as assenting to the correctness thereof, and thereupon such subsequent pay- ment will be applied by such owner, his ageut or attorney, pro rata, upon such claim, and the amounts, when due, of such claim or estimates as have been meanwhile filed by other subcontractors, material men, laborers, mechanics or persons furnishing materials, and assented to or adjusted as provided for in this chapter, before the first of such subsequent payments falls due, or within ten days thereafter; but claims in favor of laborers, mechanics, and persons furnishing material to a contractor, must be paid before the claims of subcontractors, and those of subcontractors before the principal contractor. 27 26Gen'l Code, § 8328 (R. S. § ™ Cen'l Code, §83.29 (R. S. § 3197). 3198). §§389,390 MEKWINE ON REAL ACTIONS. 504 Sec. 389. Remedy of subcontractor when his contractor or the owner refuses to pay. If a head contractor or subcontractor neglect or refuse to pay, within five days after his assent to or adjustment of any claim, the amount thereof, and costs incurred, to the subcontractor or material man, laborer or mechanic, the owner, board, officer or clerk or agent thereof, shall pay, when due, the whole or a pro rata amount thereof as the case may be, as above provided out of payments subsequently falling due, and on his failure so to do, within ten days thereafter, the subcontractor or material man, laborer, mechanic or per- son furnishing material may recover against the owner, in an action for money had or received, when due, the whole or a pro rata amount, as the case may be, of his claim or estimate, not exceeding in any case the balance due to the principal contractor. 28 Sec. 390. When and how subcontractor may obtain lien on the property of the owner. If out of the subsequent payments, as they severally fall due under the contract, and for ten days thereafter, the owner or his authorized agent neglect or refuse to pay, when due, the whole or a pro rata amount, as the case may be, of the sworn statement or estimate of any subcontractor, ma- terial man, laborer or mechanic, such subcontractor, material man, laborer or mechanic must file, within four months there- after, with the recorder of the county wherein the property is situate, an affidavit containing an itemized statement and description of any note, with the amount and value of such labor, machinery or material, with all credits and set-offs there- on, together with the statements required by Gen'l Code, §§ 8314, 8317 (R. S. §§3185, 3187), as the case may be, from prin- cipal contractors, and shall thereby have a lien to secure the payment of such claim upon the boat, vessel or other water craft, or upon the house, mill, manufactory, building appurte- nance, fixture, bridge or other structure or gas well, oil well or other well upon which the labor was done, or machinery or material were furnished, and upon the interest of the owner in the lot of land on which the same stands, or to which it may be 28 Gen'l Code, § 8331 (R. S. § 3200). 505 REAL ESTATE SOLD BY MECHANIC'S LIEN. §§^!»l,o ( J2 removed, which lien shall date back to the date of the furnish- ing of the first item of such labor, machinery or material and have the same operation, effect and duration and be subject to the same obligation with respect to the owner, as the lien of a head contractor in similar cases.- 9 Sec. 391. Such lien entitled to priority over lien of head contractor — Assignments — Attachments. Such lien will be superior to any already taken or to be taken by the head contractor in respect of the same labor, machinery, fuel or material ; and the liens of laborers, me- chanics, or persons furnishing machinery, fuel or material to a contractor or subcontractor, will be superior to any lien taken or to be taken by such contractor or subcontractor in- debted to them in respect of such labor, machinery or material. The lien of a promissory note described in any such state- ment will take effect from the date of the first item included in such notes, and an assignment or transfer by such head contractor, or subcontractor, of his contract with the owner or head contractor, as well as all proceedings in attachment or otherwise, against such head contractor or subcontractor, to subject or encumber his interest in such contract, shall save and be subject to the claims of every laborer, mechanic, subcontractor or material man who has furnished any labor, machinery, fuel or material towards the construction, altera- tion, removal or repair of any building or other property designated in this chapter. 30 Sec. 392. Effect of collusion or fraud in payment to princi- pal contractor. If by collusion or fraud, the owner, board, officer, or the authorized clerk or agent thereof, pay in advance of the pay- ments due under the contract, and thereby diminish the amount of funds for such laborer, mechanic, subcontractor or material man, he will be liable to such laborer, mechanic, subcontractor or material man to the amount that would have been due on such contract at the date of filing of an 29Gen'l Code, § 8332 (R. S. § so On'l Code, §§8333 and 8334 3201). (E. S. §3203). §§393-395 MERWINE ON REAL ACTIONS. 50G account and affidavit in such manner as if no payment had been made. 31 Sec. 393. Service of notice — Affidavits, etc. — How made. Any notice, affidavit or copy required to be served under the provisions of this chapter may also be served by the sheriff of the county within which the person, board or officer sought to be served as resident, in manner and form, and for which he will be entitled to the same fees as provided by law for service of summons in a civil action for money only, and if the owner of property sought to be subjected to a lien resides without the State, or is beyond the reach of process, notice may be given by publication as in civil actions. 32 Sec. 394. The remedy of contractors and others when owner suspends work without their consent. If the progress or completion of the work on any property designated in this chapter be suspended by the default or decease of its owner, without consent of such head or sub- contractor, or material man, he or they, or any of them, may proceed with the work, in accordance, however, with the terms of the original plan or contract, and on completion thereof, have either or all the remedies provided by this chapter. 33 Sec. 395. Laborers shall have other lien upon real properly of employer — Precedence of lien — When deemed waived — What liens shall have priority. Laborers and employes of any persons, association of per- sons or corporation, whether such employment be at agricul- ture, mining, manufacture or other manual labor, shall have a lien upon the real property of their employers for their wages, which is hereby declared to be superior to the follow- ing liens taken or attaching during the existence of such unpaid labor claims, to-wit: liens of attachment, liens of mort- gage given or taken at a time of actual insolvency of the debtor, or with a view of preferring creditors or to secure a pre-existing debt, and superior to all claims for homestead ::i r:,. n -l Code 5 8335 (11. S. § saGen'l Code, § 983? (It. S. § 320:1!. 3205). 32 1 ;,.„■] Code, §8336 (R S. § .'520 I 507 REAL ESTATE SOLD BY MECHANIC'S LIEN. §396 or other exemptions, except under Gen'l Code, §11725 (R. S. § 54:50) ; and in all cases where property of an employer is placed in the hands of an assignee, receiver or trustee, claims due for labor performed within the period of three months prior to the time such assignee, receiver or trustee is appointed, shall be first paid out of the trust fund, in preference to all other claims against such employer, except claims for taxes and the costs of administering the trust. The lien herein provided shall be deemed to be waived by the laborer or employe, as to any portion of such labor, unless within thirty days from the expiration of three months from the performance of such portion he shall file with. the recorder of the county where the labor was performed, an itemized statement verified by affidavit, of the amount, kind and value of the labor performed within said period, with all credits and offsets, and the amount then due him therefor, which verified statement, when so tiled, shall be recorded in a book kept for the purpose, and shall become and operate as a lien upon the real property of the employer without any specific description thereof, for the period of one year from and after the filing thereof, and if an action is brought to enforce the lien within that time, it shall continue in force until finally adjudicated; and the proceedings to enforce such lien shall be the same as in other cases of lien, against the owner of the property and all other persons interested ; provided, that if several persons have or obtain liens under the provisions of this section, against the property of the same employer, they shall have no priority among themselves, but all shall be paid pro rata, nor shall they have priority over those obtaining liens under Gen'l Code, §§ 8:508, 8314, 8315, 8316, 8317 (R. S. §§ 3184, 3185, 3186, 3187), but the persons obtaining liens under said R. S. §§3184, 3185, 3186 and 3187 shall have priority as provided therein.' 4 Sec. 386. To whom foregoing section applies. The provisions of the foregoing section shall apply to and include any laborer who indirectly performs labor for a gen- eral employer, or the results of whose labor are immediately enjoyed by a general employer, whenever such general em- s* Gen'l Code, § 833!) (11. S. § 3206a). § 396 MERWINE ON REAL ACTIONS. 508 ployer assumes payment of such laborer's wages by passing a credit therefor upon his books of accounts or otherwise, and whenever the provisions of this section apply, all pro- ceedings hereunder shall be the same as provided in the pre- ceding section. But nothing in the foregoing section shall be so construed as to affect or impair any valid and subsisting lien existing at the time of the passage of this act. 3 "' In concluding this chapter, it is to be observed that the procedure in foreclosing a mechanic's lien is much the same as is observed in foreclosing a mortgage, and reference is had to the first chapter of this book as to venue, service of summons, defense of infants and insane persons, service by publication upon non-resident defendants, and upon unknown heirs. The procedure is there set forth and need not be here repeated. ssGen'l Code, § 8342 (K. S. § 3206b). FORMS. PROCEDURE IN SALE OF REAL ESTATE TO SATISFY A MECHANIC'S LIEN. FORMS. 327. The mechanic's lien. No. 327. The mechanic's lien. , Ohio, — , 19 . H. L. R. to E. L., dr. To work and labor performed for the erection of a frame house on lot No. , in Addition, , Ohio, as per contract price, under oral contract entered into on or about the day of , 19 , $ • Credit by cash payment on the day of , 19 Balance due State of Ohio, County, ss.: E. L., being first duly sworn, says that the above is a true and correct itemized statement of the amount and value of the labor per- formed by him for the said H. L. R. in said county, between the day of , 19 , and the day of , 19 , under and by virtue of a contract, not in writing, entered into be- tween the said H. L. R. and the said E. L., said work and labor to be performed in the erection of a certain dwelling noire, the substance of which contract is as follows. (Here set forth the substance of the contract.) The value of said labor is as stated in said itemized statement above and the same is just and reasonable. Said labor was begun on the day of , 19 . No promissory notes have been given for said indebtedness, and there are no credits upon, nor offsets against the same, except as indicated on said above statement. And there remains due and unpaid to the said E. L. the sum of $ , with interest thereon from the d ay of , 19 , at per cent, per annum. At the time said contract was entered into and the time said labor -vas performed, the said H. L. R. was the owner of said building and the lot of land upon which the same is located, which lot of land is described as follows: (Here describe it). 500 MERWINE ON REAL ACTIONS. 510 This affiant claims a lien on said real estate to secure the pay- ment of said indebtedness J& L. Sworn to before me and subscribed by E. L. in my presence on this day of , 19 . Notary' Public, County, Ohio. PROCEDURE IN SALE OF REAL ESTATE TO SATISFY A MECHANIC'S LIEN, WHERE PERSONAL JUDG- MENT IS ASKED AND CAUSE TRIED BY A COURT AND JURY. FORMS 328. 325). 330. 331. The petition for foreclosure of a mechanic's lien. The precipe for summons. The summons and its return of service by the sheriff. An answer and cross-petition in the action. 332. Reply to answer and answer to cross-petition. 333. The verdict of the jury. 334. Motion to set aside the ver- dict and for a new trial. 335. Order of court overruling motion for new trial, judgment on the, verdict and decree ordering sale of real estate. 336. The order of sale directed by the clerk to the sheriff. FORMS 337 338. 339. 340. 341. 342. 343. Sheriff's procedure under said order of sale and oath of appraisers. Appraiser's report. Proof of publication of legal notice of sale of ieal estate. Legal notice of sale of real estate. Sheriff's return of his pro- ceedings under the order of sale. Decree and order of court confirming sale, ordering deed and fund. Sheriff's deed. distributing No. 328. Petition for personal judgment and foreclosure of mechanic's lien. E. L.. Court of Common Pleas, Plaintiff, vs. County, Ohio. No. H. L. R.. A. E. D. and The O. B. & L. Co., Defendants. Petition. I. First cause of action. On or about the — day of 19- plaintiff en- tered into a contract, not in writing, with the defendant, H. L. R., 511 FORMS. whereby plaintiff agreed to do all the carpenter work necessary in the erection of a certain room dwelling house on lot No. of Addition in the City of , County, Ohio, said carpenter work to be completed on the day of , 19' , and in consideration whereof said H. L. R. on her part agreed to pay plaintiff for said carpenter work the sum of $ , payments to be made as- said work progressed. In pursuance of said contract plaintiff fully performed the same and fully performed all conditions on his part to be performed by said day of , 19 . The defendant, H. L. R., has paid to plaintiff on said contract price the sum of $ , leaving a balance of $ , which plaintiff claims with interest thereon from the day of — , 19 , at six per cent, per annum, and which balance defendant, H. L. R., has neglected and refused to pay. 2. Second cause of action. On or about the day of , 19 , plaintiff entered into a contract, not in writing, with the defendant, H. L. R., being the same contract mentioned in the first cause of action herein, whereby plaintiff agreed to do all the carpenter work necessary in the erection of a certain room dwelling house on lot No. in Addition to said city, said carpenter work to be completed on the day of , 19 , and in con- sideration whereof the said H. L. R., upon her part agreed to pay plaintiff for said carpenter work the sum of $ , payments to be made as said work progressed. In pursuance of said contract plaintiff fully performed the same and fully performed all the conditions on his part to be performed by said clay of , 19 . The defendant, H. L. R., has paid to plaintiff on said contract the sum of $ , leaving the balance of $ , which plaintiff claims with legal interest thereon from the day of , 1" , with per cent, interest per annum, and which balance defendant, H. L. R., has neglected and refused to pay. At the time plaintiff performed such labor, defendant, H. L. R., was the owner in fee simple of said lot on which said building was erected, more specifically described as follows, to-wit: (Here insert description of real estate). On the day of , 19 , at o'clock, m., and within four months from the time said labor was performed, the plaintiff duly filed with the recorder of said county for record an affidavit containing an itemized statement of the amount and van 1 of said labor, with all credits and off sets thereon, together wlt'i a statement of the amount and times of payments to be made there- for, and a description of the real estate on which said building stand,, which said affidavit was recorded in Record of Mechanic's Lirn. vol. . nsgp — — . of the records of County, Ohio, and p'aint'ff within thirty days after the filing of said affidavit, notified defendant H. L. R., that he claimed such lien, whereby his claim became, and MERWINE ON REAL ACTIONS. 512 is a valid lien on said building and lot of land from the (j a y f f 19 ; when said labor was commenced, for the full value of said balance. The defendants, A. E. B. and The O. B. & L. Co., each claim to have some interest in said property as lienholders or other- wise, and the same are adverse and inferior to plaintiff's claim and lien, and plaintiff asks that they may be required to set up their claims in this action or be forever barred from asserting the same. Plaintiff therefore prays judgment against the defendant, H. L. R., in the sum of $ , with interest on said sum from the day of , 19 ; that said claim set out in the second cause of action may be decreed to be a lien on the premises herein de- scribed; that said premises may be sold, and the proceeds arising therefrom applied to the payment of said claim, interest and costs, and whatever other liens there may be thereon, in the order of their priority, and such other and further relief as equity and the nature of the case may require. , Attorneys for Plaintiff. (This petition should be verified.) No. 329. The precipe for summons. To the Clerk of the Common Pleas Court, — County, Ohio: Issue summons to the sheriff of County, Ohio, returnable according to law. Indorse "An action for judgment under contract, amount claimed $ , with interest on said sum from the day of , at per cent, per annum, also for the foreclosure of a mechanic's lien and equitable relief." Attorneys for Plaintiff. No. 330. The summons. State of Ohio, County, ss.: To the Sheriff of County, Greeting.- You are commanded to notify H. L. R., A. E. D. and the 0. B. & L. Co. that they have been sued by E. L. in the Court of Common Pleas of County, Ohio, and that unless they answer by the day of , in the year of our Lord one thousand nine hundred and , the petition of said plaintiff against them, filed in the clerk's office of said county, such petition will be taken as trua and judgment rendered accordingly. You will make the return of this summons on the diy of , in the year of our Lord one thousand nine hundred and Witness my hand and seal of said court this day of , 19 . . Clerk of the Court of Common Picas, County, Ohio. 513 FORMS. The Sheriff's Return of Service of Said Writ. State of Ohio, County, ss.: Received this writ , in the year of our Lord one thousand nine hundred and , at o'clock m., and pursuant to its command, on the day of , 19 , I served the same by personally handing a true and duly certified copy of this writ, with all the indorsements thereon, to the within named defend- ant, H. L. R. I also, on the same day, left a true and duly certified copy of this writ, with all the indorsements thereon, at the usual place of residence of the within named defendant, A. E. D. Also, on the same day, I served the within named defendant, The O. B. & L. Co., by personally handing a true and duly certified copy of this writ, with all the indorsements thereon, to , secretary of said The O. B. & L. Co., the President, Vice-President or other chief officer of the said The O. B. & L. Co., not found within my bailiwick. Sheriff o f County, Ohio. No. 331. Answer and cross-petition of H. L. R. Court of Common Pleas, County, Ohio. (Same caption as in the petition.) 1. First Defense: Now comes the defendant, H. L. R., and for her answer and cross-petition herein, and by way of counter-claim to said first and second causes of actions mentioned in the petition, says that she admits and avers as follows: That on or about the day of , 19 , she entered into a contract, not in writing, with the plaintiff, whereby it was agreed that she should purchase and have delivered upon the ground all lumber and material necessary for the construction and erection of a certain room dwelling house on the real estate mentioned in the petition; that the plaintiff should prepare and make out bills showing the character and amount of lumber necessary for the construction of said house, and should receive, check up invoices of and have charge of all lumber so delivered upon said premises for this defendant, and should do all the carpenter work necessary in the erection and construction of said building, and complete the same on the day of , 19 ; that in consideration thereof this defendant agreed to pay plaintiff for said services the sum of $ , payments to be paid as said work progressed; that this defendant has paid plaintiff the sum of $ ; that plaintiff worked upon said building; that this defendant was the owner in fee simple of said real estate; that on or about the day of , 19 , and within four months from the time said labor was performed, the plaintiff filed with the recorder of County, Ohio, for record, an itemized statement of his claim as to the amount and value of said labor with a statement of the amount and times of payment to be made therefor, and a description of said real estate; that said affidavit was recorded MERWINE ON REAL ACTIONS. 514 in Mechanic's Lien Record, Vol. , page , of the records of said county, and that plaintiff notified this defendant that he claimed such lien. This defendant denies each and every allegation in said first and second causes of action not hereinabove expressly admitted or averred to be true. This defendant avers that she purchased and had delivered upon said premises, not only all lumber and material necessary for said work, but also a large amount of lumber and material which said plaintiff claimed was necessary for the construction of said building, but which was, in fact, not necessary for that purpose; that of the lumber so purchased and delivered to this defendant upon said prem- ises, and in the care and charge of said plaintiff as aforesaid, said plaintiff took and carried away and unlawfully converted and dis- posed of the same to his own use, the following lumber and material, to-wit: of the value of $ . Whereby this defendant was damaged in the sum of $ , which she prays may be allowed and adjudged to her as a counter- claim against the said claim of plaintiff. Wherefore, this answering defendant says she is damaged in the sum of $ , which sum she prays may be allowed and adjudged due her as a counter-claim against the claim of said plaintiff. Attorneys for Defendant. (The answer is verified as in other cases.) No. 332. Reply of plaintiff to cross-petition of H. L. R. (Same caption as in the petition.) 1. Defense to First Cause of Action of Cross-petition,- Now comes plaintiff and for his answer to that part of the cross-petition of H. L. R. designated as first defense, says that he denies that by virtue of said contract, he was to receive, check up invoices of, and have charge of all lumber so delivered upon said premises, for said defendant, H. L. R. ; he also denies that said de- fendant H. L. R., had delivered upon said premises also a large amount of lumber and material which plaintiff claimed was necessary for the construction of said building, but which was, in fact, not necessary for that purpose, or that she had received there any amount of material or labor except what was reasonably estimated as being sufficient for the construction of said building; he also denies that he took and carried away and unlawfully converted and disposed of the same to his own use the items of lumber set forth in said cross- petition, or any part thereof, or of the lumber purchased and delivered to said defendant nn said premises, or that the value of said lumber was as in said cross-petition alleged. Wherefore, plaintiff renews the prayer of his petition. Attorneys for Plaintiff. (This answer verified as in other cases.) Tebm. , 19- No. 515 FORMS. No. 333. The verdict of the jury. State of Ohio, County, ss.: Court of Common Pleas of Said County, E. L., Plaintiff, vs. H. L. R., ft al, Defendants. Verdict of Jury. "We, the jury, being duly impaneled and sworn, find the issues in this case in favor of the plaintiff, and decree the amount due to plaintiff on his petition from the defendant, H. L. R., at the sum of $ . • Foreman. No. 334. Motion to set aside the verdict, and for new trial. (Same caption as in the petition.) Defendant, H. L. R., moves the court to set aside the verdict herein and for a new trial for the following reasons, to-wit: 1. Irregularity in the proceedings of the court and jury and in the orders of the court by which the defendant H. L. R. was pre- vented from having a fair trial. 2. Error in the amount of recovery upon the petition of plaintiff, the same being too large. 3. Error in the assessment of the amount of recovery upon the answer and cross-petition of defendant, H. L. R., the same being too small. 4. The verdict in favor of plaintiff is not sustained by sufficient evidence, and is against the weight of the evidence. 5. The verdict is contrary to law. 6. The court erred in rejecting evidence offered by said defendant. 7. The court erred in charging the jury. 8. For other errors of law occuring at the trial and excepted to by said defendant at the time. Attorneys for Defendant H. L. R. No. 335. Entry 'overruling said motion and giving plaintiff a judgment on the verdict — And also decree and order of the court ordering a sale of the real estate. (Same caption as in the petition.) This cause coming on for hearing on the motion of the defendant. H. L. R.. to set aside the verdict herein rendered, and for a new trial, the court, on consideration thereof, overrules the same. it i CT therefore considered by the court that the said E. L. recover from the said H. L. R. the said sum of $ . heretofore, by the ilERWINE ON REAL ACTIONS. 516 verdict of the jury, found due him, with interest from the day of , at the rate of per cent, per annum, together with his costs herein expended, and execution is awarded therefor, to which ruling, order and judgment, so made and rendered by the court, the defendant H. L. R. excepts. And this cause coming on to be heard by the court on the second cause of action in the petition of plaintiff, the court finds that the said H. L. R., A. E. D. and the said The O. B. & L. Co. have each failed to answer or demur to said second cause of action, and thereby have confessed the allegation of each thereof to be true, and that there is due from the defendant H. L. R. to the plaintiff, E. L., upon the account and mechanic's lien set forth in said petition, the sum of $ , with interest on said sum from the day of , 19 , as in the judgment herein entered, and that said sum is a valid first lien on the premises described in the petition. It is further ordered and decreed that unless the costs of this suit and the amount due the plaintiff, with interest, shall be paid within days from the date of this decree, that the equity of redemption of the defendant H. L. R. in the said premises be fore- closed, and an order be issued to the sheriff of said county, direct- ing him to appraise, advertise and sell said premises according to law. Upon motion of plaintiff, and for good cause shown, advertise- ment of a sale in a German newspaper is dispensed with. No. 336. The order of sale directed by the clerk to the sheriff. State of Ohio, County, ss.: To the Sheriff of said County, Greeting: Whereas, At the term of the Court of Common Pleas, held at , in and for said county, on the day of , A. D. one thousand nine hundred and , iu the cause of E. L., plaintiff, and H. L. R., et al, defendants, it was ordered and decreed as follows, to-wit: That the plaintiff recover from the defendant, H. L. R., the sum of $ and his costs herein expended; that said sum of $ bear interest from the date of this judgment and decree ( . 19 ), at the rate of per cent, per annum, until paid, and that if not paid within days, that execution issue therefor. And it is further ordered, adjudged and decreed that unless the de- fendant, H. L. R., shall, within days from the entry of this decree, pay, or cause to be paid to the clerk of this court the costs of this case, and to the plaintiff herein the said sum so found due as aforesaid with interest thereon at per cent, per annum from the day of , 19 , then the equity of redemption of the said defendant, H. L. R., shall be foreclosed and said premises shall be sold, and an order of sale issue to the sheriff of County, Ohio, directing him to appraise, advertise and sell said prem- ises as upon execution, and report his proceedings to this court for 517 FORMS. further order, the following described lands and tenements, situate in the County of , in the State of Ohio, and in the City of , and bounded and described as follows: (Here describe real estate). We therefore command that you proceed to carry said order, judgment and decree into execution agreeably to the tenor thereof, and that you expose to sale the above described real estate, under the statute regulating sales under execution, and that you apply the proceeds of such sale in the satisfaction of said judgment and decree, with costs and interest as specified therein, and that you make report of your proceedings herein to the Court of Common Pleas within days from the date hereof, and bring this order with you, and I certify, under seal of court, that the description of the property herein is correctly copied from the records of this case on file in this office. Witness my signature as clerk of our said Common Pleas Court, and the seal of said court at , Ohio, this day of , A. D. 19 . , Clerk of the Court of Common Pleas, Co., 0. No. 337. Sheriff's procedure under said order of sale, and oath of appraisers. The State of Ohio, County, ss.: To . and , Freeholders of — County, State of Ohio: Whereas, On the day of , 19 , A. D., E. L. filed in the Common Pleas Court of said county a petition vs. H. L. R., et al, praying said court for an order to sell certain real estate de- scribed in said petition, situate in the county of , State of Ohio, and City of , to-wit: (Here describe real estate), and Whereas, Afterwards, to-wit: at the term of said court A. D., 19 , such proceedings were had upon said petition by said court that the sheriff of County was ordered to sell said real estate as upon judgments and executions of law. Now, therefore, according to the statute in such cases made and provided, I do hereby call and appoint the said , and , an inquest and do require them, on oath, to forthwith view, estimate and appraise the real value of said premises in money, and return to me your proceedings under your hands and seals. Given under my hand and seal this day of , A. D., 19 . , Sheriff of County, Ohio. Personally appeared before me, , sheriff of County as aforesaid, the above named , and -, appraisers aforesaid, who are judicious, disinterested freeholders and citizens of said County of , and were personally sworn ac- cording to law to discharge the duties of said appointment. MERWINE ON REAL ACTIONS. 518 Witness my hand and seal this day of , A. D. 19- Sheriff of '— County, Ohio. No. 338. Appraisers' report. To . Sheriff of County of Ohio, as aforesaid: In pursuance of the foregoing appointment we have proceeded to view the premises described, and from actual view of the same, we do estimate the real value thereof in money to be $ — — . Given under our hands and seals this day of , 19 . , [Seal.1 , [Seal.] . [Seal.] No. 339. Proof of publication; — Legal notice of sale of real estate. State of Ohio, County, ss.: , cashier for The , a newspaper published at , County, Ohio, personally appeared and made oath that the attached printed advertisement was published for consecutive weeks in said newspaper, from and after , 19 , and that said paper is of general circulation in said county and State. , Subscribed and sworn to this — — day of , 19 . Notary Public, Co., 0. No. 340. Legal notice of sale of real estate. (Same caption as in the petition.) In pursuance of an order of sale from said court to me directed, I will offer for sale at public auction, at the door of the court house in the City of , Ohio, on the — day of , 19 , at o'clock m., the following described real estate situated in the County of , State of Ohio, and in the City of , and bounded and described as follows, to-wit: (Here insert descrip- tion of real estate). Said property is located and known as No. , — Street. Appraised at $ . Terms of sale, cash. Sheriff of County, Ohio. No. 341. Sheriff's return of his proceedings under the order of sale. The State of Ohio, County, ss.: In obedience to (he command of the order of sale hereto annexed, I did, on the day of , A. D. one thousand nine hundred bVJ FORMS. and , summon , and , three dis- interested freeholders, resident-; of said county, who were by me duly sworn to impartially appraise the lands and tenements there. u described, upon actual view, and afterward on the day ot , A. D. one thousand nine hundred and , said ap- praisers returned to me, under their hands and seals, that they did, upon actual view of the premises, estimate and impartially appraise the real value in money of the same at $ . A certified copy of said appraisement I forthwith deposited in the office of the clerk of the Court of Common Pleas of said county, and on the clay of , A. D. one thousand nine hundred and , at o'clock m., of said day, and having advertised the said lands and tenements for more than thirty days previous to the date of sale, to-wit: five consecutive weeks on the same day of the week in each week, and in pursuance of said notice, I did, on the said clay of , A. D. one thousand nine hundred and , at the time and place above mentioned, proceed to offer said lands and tenements at public sale at the door of said court house, and then and there came , who bid for the same the sum of $ , and said sum being more than two-thirds of the appraised value thereof, and the said being the highest and best bidder therefor, I then and there publicly struck off and sold said lands and tenements to him for the said sum of $ . Slieriff of County, Ohio. No. 342. Decree and order of court confirming sale, order- ing deed and distributing funds. (Same caption as in the petition.) This day this cause came on to be heard upon motion of the plaintiff for confirmation of sale made under the former order of this court, and on plaintiff producing the sheriff's return of the sale made under said former order of this court, and the court, on careful consideration thereof, and of all of the proceedings of said sheriff, and upon the evidence adduced, being satisfied that the same have been in all respects in conformity to law and the former orders of this court, it is ordered that said proceedings and the sale be, and they are hereby approved and confirmed. Tt io further ordered that said sheriff convey to the said a good and sufficient deed to said property according to law ; that said be, and he is hereby subrogated to all the rights of the said E. L., and all the rights of the lienholders of said premises so far as may be necessary for the protection of their title, and a writ of possession is awarded to put them into possession of said premises. It is therefore ordered that the clerk cause satisfaction of the mechanic's lien herein sued upon to be entered on the records thereof in the office of the recorder of County, Ohio. And the court coming now to distribute the proceeds of said sale, MERW1NE ON REAL ACTIONS. 520 amounting to $ it is ordered that the sheriff out of the money in his hands, pay First.- To the treasurer of this county the general taxes and penalties due on said premises, amounting to $ . Second: To the treasurer of this county the amount of the street assessments and interest thereon du3 and payable, amounting to Third: The costs herein, taxed at $ . Fourth: To E. L., the sum of % , to be applied toward the payment of the amount heretofore herein found due him, to-\vit: the sum of $ . Nc. 343. Sheriff's deed in foreclosure of mechanic's lien. To all Persons to whom These Presents shall come, Greeting: Whereas, on the day of , 19 , E. L., plaintiff, filed his certain petition and then and thereby commenced an action in the Court of Common Pleas of County, Ohio, against H. L. R., (t al, and numbered on the docket of said court as case No. , praying therein, among other things, for the sale of certain real estate in said petition and hereinafter described; and Whereas, such proceedings were had in said action, that by the consideration and judgment of said court, en the day of , > 19 , at the tsrm, 13 , said E. L. recovered a judgment against the said II. L. R. for the sum of $ , and costs of suit; and Whereas, it was then and there further ordered, adjudged and decreed by said court in said action, that unless the said H. L. R. should pay the costs of said suit and to said E. L. the amount so found due, within days from the entry of said decree, said premises should be sold and an order of sale should issue therefor to the sheriff of said County of , commanding him that he should cause the lands and tenements in said petition and order mentioned and hereinafter described, to be appraised, advertised and sold according to law, and return his proceedings to said court; and Whereas, afterwards, on the day of , 19 , in pursuance of said order and judgment of said court founded thereon, an order of sale issued from said court in said cause, directed to , sheriff of County, Ohio, commanding him to execute said order, and in all things to be governed by the provisions of the statute in such cases made and provided, and of said order, with his proceedings thereon, he should make clue return; and Whereas, , sheriff aforesaid, having caused said premises to be aTi^raised and a copy of the appraisement to be filed in the office of the clerk of said court, and having advertised the time and place of selling the same in The , a newspaper printed and of general circulation of and in said county for a period of days prior to the date of said sale, and otherwise complied with said order and the provisions of the statute in such case made and pro- vided, did, on the day of , 19 , at the door of 521 FORMS. the court house in said county, at o'clock, m., of said day, expose to sale at public auction, the premises hereinafter mentioned and described, and thereupon , having bid for said premises the sum of $ , and said sum being the highest and best bid offered for the same, and being more than two-thirds the appraised value thereof, the said premises were then and there struck off to him; and Whereas, the court, at its term, 19 , having examined the proceedings aioresaid in the premises, under said order of sale, and being satisfied that . the sale had been had in all respects in pursuance to said judgment and order of sale, and in accordance with the provisions and requisitions of the statutes regulating such sales, did order that said sale be confirmed, and that said sheriff of County, Ohio, should convey the said premises, by deed in fee simple, to the said . Now Know Ye that I, the said , sheriff of County, Ohio, as aforesaid, by virtue of said judgment, order of sale, sale and confirmation and of the statute for such cases made and provided, and for and in consideration of the premises herein and the sum of $ , which I acknowledge to have received from the purchaser above named, do hereby grant, sell and convey unto him, the said , his heirs and assigns forever, the following de- scribed real estate situated in the County of , State of Ohio, and in the City of , and bounded and described as follows, to-wit: (Here insert description of real estate), together with all the privileges and appurtenances thereto belonging, and all the riiht, title and interest of the said H. L. R., and of all other parties to said suit of and to the same. To Have and to Hold said premises aforesaid unto the said , his heirs and assigns forever, as fully and completely as the said , sheriff of County, Ohio, by virtue of said judgment, order of sale, sale and confirmation and cf the statute made and provided for such cases, might or should sell or convey the same In Witness Whereof, I have hereunto set my hand and seal this day of , 19 . Sheriff of County, Ohio. State cf Ohio, County, ss.: Personally appeared before me, a notary public within the afore- said county, the above named — , sheriff of County, Ohio, the grantor in the above deed of conveyance, who acknowledged the signing and sealing of the same to be his voluntary act and deed for the uses and purposes therein mentioned. In Witness Whereof, I have hereunto set my hand and seal this day of , 19 . Notary Public, County, 0. CHAPTER XIV. THE LAW AND PROCEDURE BY WHICH REAL ESTATE IS SOLD UNDER FORECLOSURE OF TAX LIEN. Section. 397. The procedure in foreclosure of tax lien. 3!l8. When the lien of the State at- taches. 399. Penalty for non-payment of real estate tax. 400. Owner of life estate, guardian, agent, etc., to pay tax, when. 401. All persona holding lands shall list lands for taxation — Penalty for neglect. 402. Paying taxes on lands — Agents and attorneys — Payment by other than owner. 403. Guardian's liability for neg- lect to pay taxes. 404. Duty of executors to pay taxes, when. 405. Duty of agents and attorneys as to payment of taxes. 406. The lien "f such executors. guardian, or attorney, on the land, for money ad- vanced for taxes. 407. Liability and forfeiture of tenants in curtesy or dower for neglect — Redemption in such case. 408. Any one claiming lien on real estate shall have the tax lien on all taxes paid by him. 400. Rights of a joint owner who pays Ids portion of tax — Those not paying held lia- ble as if partition had not been made — A tax on lands at judicial sale to be paid out of proceeds of sale — Pari owner paying tax on whole tract shall have lien. Sectiox. 410. General taxes paid out of pro- ceeds of judicial sale, when. 411. The rule as to payment of assessments, out of pro- ceeds of a judicial sale of real estate. 412. Delinquent land list — Cuya- hoga and Hamilton Coun- ties — How published. 413. A failure to comply with the requirement of the statute as to advertisement defeats title of purchaser. 414. Auditor to compare delinquent list with duplicate. 415. Copy to be inserted at fort of record of delinquent list — Certificate as to their pub- lication. 410. Proceedings when delinquent list not published. 417. Omitted publication. 418. Paper containing list to be sent to auditor of State and printers' account. 410. Sale of delinquent land — Con- ditions — Cuyahoga County. 420. How to proceed if purchaser fails to pay. 421. County auditor or deputy to attend sales of delinquent lands — To forward copy of record of sale* to auditor of State. 422. Certificate of purchase of de- linquent lands — Duty of county surveyor under such certificate. When survey and deeds shall Im' made. 423 424 Certificates assignable. 522 523 TAX LIEN FORECLOSURE. §397 Section. Sect 425. When auditor can make deed £38. — When two or more tracts are sold to one purchaser, 439. auditor to make one deed. 420. Title by deed and its effect as evidence. I HI. 427. Sale for tax cuts out previous lien and bars dower. 441. 428. In what case survey of lain! sold for taxes dispensed 442. with. 429. Purchaser of the interests of 443. joint tenant to hold in com- mon. 444. 430. Title acquired at tax sale in- 445. valid— When. 431. In tax sale of delinquent 440. lands, the statute authoriz- ing the sale to be strictly construed. 447. 432. Lien of tax purchaser for purchase money, etc., if 448. sale valid. 433. Sale not invalid if tract charged in wrong name. 434. The real estate must be de- scribed so as to sufficiently 449. identify the property. 435. Auditor may make deeds of 450. lands heretofore sold. 430. When certificates have been lost or destroyed — How 451. deeds made. 437. How auditor to keep minutes of deeds made. ION. And to note redemption of lands. Sale of land for taxes regular- ly paid, void — Proceedings in such case. When auditor may make deeds for lands in other counties. Auditor to transfer land sold for taxes. Applications for redemption to be made to auditor. Redemption of delinquent lands — Limitation. How lands may be redeemed. Joint owner, etc., may redeem his proportion. Proceedings of party, treas- urer, and auditor on appli- cation to redeem. Payment of redemption money to tax purchaser, etc. When auditor to note on back of certificate that deposit has not been made — Note of redemption on record of tax sales. Tax purchaser's improvements — How paid for, etc. Sales, etc., for taxes of lands and lots, etc. — Under per- manent lease. Proceedings when land is re- turned delinquent, upon which taxes were paid. Sec. 397. The procedure in foreclosure of tax lien. The action to sell real estate to satisfy the lien for taxes is pretty much the same as the action to foreclose a mortgage, judgment lien, mechanic's lien or any other lien. The rec- ords in the proper county offices should be searched for liens and incumbrances and everyone made a party to the action who claims an interest in the real estate sought to be sold, just as in the other actions where a petition is filed asking for the sale of real estate. The name of the owner of the real estate at the time of the auditor's sale for delinquent taxes, should be alleged as well as an accurate description of the real estate. It shonlc allege that the taxes thereon were not paid as required by § 398 MERWINE ON REAL ACTIONS. 524 law, and that at the time required by law, the real estate was sold to the plaintiff or his assignor for a certain sum, being the taxes, penalties and interest delinquent; that there was issued to the plaintiff, or his assignor, a cer- tificate for the same and that plaintiff is the owner and holder thereof; that by reason thereof, he has a lien on the real estate for the sum so paid, the taxes, penalty, interest, costs of the certificate and for taxes, penalty and interest paid for taxes on the real estate since said sale ; that said lien is now due and unpaid, and that the same has become absolute. The interest of any other party in this real estate should be set forth, and the party claiming such interest should be required, by proper allegations of the petition, to set forth the nature and amount of the same, or in default thereof, be forever barred from asserting the same in the action. The petition should contain a prayer that the lien may be foreclosed, and the real estate sold according to law, and that the proceeds arising from such sale be applied to the satisfaction of such lien and for such other and further relief as the nature of the case may require. The decree and all of the proceedings in the case following the petition are the same as in other actions to foreclose a lien. Here reference is made to the first chapter of this work as to parties to the action, venue, service on infants and the defense for them and the defense for insane persons, the publication of summons on non-residents and upon unknown heirs. There will be found discussed in proper order all of the necessary steps required to give the court power to hear and determine the rights of the various parties to the action. 1 Sec. 398. When the lien of the State attaches. The lien of the State for taxes levied for all purposes, in each year, attaches to all real property subject to such taxes, on the day preceding the second Monday of April, annually, and continues until such taxes, with any penalty which shall accrue thereon, are paid ; all personal property subject to taxa- 1 See No. 367 for form for audi- all orders of sale, writs and process, tor's certificate to the purchaser of from the filing of the petition on veal estate ai delinquenl tax sale. up to, and including, the deed of the See No. 353 and following for form sheriff to the purchaser of the real tor petition for foreclosure of tax estate. lien against unknown heirs, and for 525 TAX LIEN FORECLOSURE. § 399 tion is made liable to be seized and sold for taxes; and the personal property of any deceased person is liable, in the hands of any executor or administrator, for any tax due on the same by any testator or intestate. 2 Sec. 399. Penalty for non-payment of real estate tax. When one-half the taxes, charged against any entry of real estate, is not paid on or before the twentieth day of December, in that year, or* collected by distress or otherwise prior to the February settlement, a penalty of fifteen per cent, thereon is added to such half of said taxes on the duplicate; and if the taxes and penalty, including the remaining half of such taxes, is not paid on or before the twentieth of June next thereafter, or collected by distress or otherwise prior to the next August settlement, the same penalty is charged on said last half of said taxes; and the amount of the whole to- gether constitutes the delinquent taxes on such real estate, to be collected in the manner that is or may be prescribed by law; and if the amount of such delinquent taxes and penal- ty, together with one-half of the taxes charged against such real estate for the current year, is not paid on or before the twentieth day of December, of the same year, the said delin- quent taxes and penalty, and the whole of the taxes of the current year, then become due and are collected by the sale of such real estate in the manner that is or may be authorized by law; and in case the first half of the taxes charged upon any real estate, be paid on or before the twentieth day of December, as provided by law, but the remaining half thereof be not paid on or before the twentieth day of June next there- after, or be collected by distress or otherwise, prior to the next August settlement, as provided by law, then the same penalty is added to such unpaid taxes, and the same is treated as delinquent taxes, and, with the taxes of the current year, collected by the sale of such real estate, as aforesaid. 3 = Oen'l Code, § 5671 (R. S. s G«n'l Code. §5078 (R. S. §2838). See in this connection R. § 2844). For construction of this S. § (.044, Creps v. Baird. 3 0. S. section and 1053, see White v. Wood- 277: Chapman v. Sollars. 38 O. S. ward. 44 0. S. 347; Hunter v. Borck, 331: Sehott v. Wastenney, 13 C. 51 0. S. 320. See also Ward v. Ry. C. 340; aff'd in 50 O. S. 410. Co., 3 N. P. 275; Ry. v. Wolf, i3 C. C. 374. §§400-402 MERWINE ON REAL ACTIONS 526 Sec. 400. Owner of life estate, guardian, agent, etc., to pay- tax — When. Every person is liable to pay tax for the lands or town lots of which he or she stands seized for life, by curtesy, in dower, or by a husband in right of his wife, or has the care of as guardian, or as agent, or attorney, having funds of the principal in his or her hands. 1 Sec. 401. All persons holding lands shall list the same for taxa- tion — Penalty for neglect. It is made the duty of every person seized of or holding lands, to list the same for taxation with the county auditor, on or before the third Monday of May next after the same is subject to taxation, and in case of neglecting to list the same as aforesaid, the county auditor is required, when the same shall thereafter be listed, to charge upon each tract so neg- lected to be listed, the taxes for each year the same shall have been omitted after becoming liable for taxation, together with twenty-five per centum penalty and six per centum interest thereon, in addition to the taxes of the current year. 5 Sec. 402. Paying taxes on lands — Agents and attorneys — Pay- ment by other than owner. The statute makes it the duty of each and every person, holding lands as aforesaid, to pay the tax which may be assessed thereon each and every year; provided, that agents and attorneys shall not thus be obliged to pay such taxes, unless sufficient money of their principals be in their bands to pay the same ; and provided further, that any person own- ing lands as aforesaid, may authorize or consent to the pay- ment by any other person, of the taxes levied upon such lands and any person so paying such taxes shall first obtain from the owner or owners of such lands a certificate of authority to pay such taxes, signed in the presence of two witnesses, and duly acknowledged before an officer authorized to administer oaths, which certificate shall contain an accurate description of the property ;is shown by the tax duplicate, the amount of the taxes levied thereon. the year for which the same w T ere *Gen'l Code. §5680 ("R. S. r > R. P. § 2S4fi. Cincinnati v. Yat- § 2845). Campbell v. Park. 32 O. man. 30 O. S. 276: Myers v. Aikens, 56. 8 C. C. 228. 527 TAX LIEN FORECLOSURE. §§403,404 levied and the name of the person authorized to pay the same and the date of the payment thereof, and shall, within ten days from the date of the payment of such taxes, tile the same in the office of the county recorder for record; and when such certificate has been filed as aforesaid, the amount thereof with interest at the rate of eight per cent, per annum from the date of the payn i it < f such tax, shall operate as a lien upon such real estate in preference to all other liens; and the money so paid, together with the interest thereon, may also be re- covered by action for money paid to his use against the person or persons legally liable for the payment of such tax ; winch action may be brought by such person so paying such tax as aforesaid, at any time after the expiration of one year from the date of the payment thereof; that such certificate so filed as aforesaid with the county recorder, shall be re- corded and cancelled in the same manner as mortgages on real (state, in a book to be separately kept and indexed by him for that special purpose, and such recorder shall receive such fees as are prescribed by law for recording real estate mortgages. 6 Sec. 403. Guardian's liability for neglect to pay taxes. Every person holding lands as guardian, as aforesaid, and neglecting or refusing to list or pay the taxes on the same, in manner aforesaid, is made liable, in an action to his or her ward or wards, for any damage his or her ward or wards may have sustained by such neglect or refusal. 7 Sec. 404. Duty of executors to pay taxes — When. Every person so being seized, or having the care of lands as aforesaid, as executor, and who neglects or refuses either to list or jiay the taxes on the same, in manner aforesaid, is made liable, in an action to the devisee or devisees of the person whose executor he is, for any damage occasioned by such neglect. 8 eGen'l Code. § 5fi81 (R. S. t<; 0T1 -] Code. 5 5R84 (R. S. § 2847). See as to taxation for $2848). See Piatt v. St. Clair. (J building on perpetual lease. Josly v. O. 227. Spellman. 12 W. L. B. 7. BGen'l Code, §5085 (R. S. § 2849). §§ 405-407 MERWINE ON REAL ACTIONS. 528 Sec. 405. Duty of agents and attorneys as to payment of taxes. Every person having the care of lands, as agent or attorney, having funds of the principal in his hands, neglecting or re- fusing either to list or pay the taxes on such lands is made liable, in an action to his principal, for any damage such princi- pal may have sustained by such neglect or refusal. 9 Sec. 406. The lien of such executor, guardian, or attorney on the land, for money advanced for taxes. Every attorney, agent, guardian, or executor, seized or having the care of lands as aforesaid, who shall be put to any trouble or expense, in listing or paying the taxes on such lands, or who has to advance his own money for listing or paying the taxes on such lands, will be allowed a reasonable compensation for the time spent, the expenses incurred, and monev advanced, as aforesaid, which shall be deemed in all courts a just charge against the person for whose benefit the same shall have been advanced. 10 Sec. 407. Liability and forfeiture of tenants in curtesy cr dower for neglect — Redemption in such case. If any person who is seized of lands as tenant by curtesy, or in dower, or who is seized of lands for life, or in right of his wife, neglect to pay the taxes thereon so long that such lands are sold for the payment of the taxes, and does not, within one year after such sale, redeem the same, according to law, such- person thereby forfeits to the person or persons next entitled to such lands in remainder or reversion, all the estate which he or she, so neglecting as aforesaid, may have in said lands; and the remainder man or reversioner may re- deem said lands in the same manner that other lands may be redeemed after having been sold for taxes; and, moreover, the person so neglecting as aforesaid, will be liable in action to the person next entitled to the estate, for all damages such persons may have sustained by such neglect. 11 »Gen'l Code, §5686 (R. P. §2852). This statute lias l>oen § 2850). hold to be constitutional. Mc- "•<;<•„•] Code, § 5687 (R. S. Millan v. Robins, 5 O. 28. Where § 2851 ) . Sec Gary v. May. 1G O. 66. reversioner had land entered for h\\- ii Gen'l Code, § 5G88 ( R. S. ation, non-payment of tax therecn 529 TAX LIEX FORECLOSURE. §§408,409 Sec. 408. Any one claiming lien on real estate shall have the tax lien on all taxes paid by him. Any person having a lien upon real estate may pay the taxes thereon in so far as the same are a lien upon such real estate; and the amount of taxes so paid will from the time of payment, operate as a lien upon such real estate, in prefer- ence to all other liens, and the money so paid may also be recovered by action for money paid to his use against the person or persons legally liable for the payment of such taxes. 12 Sec. 409. Rights of a joint owner who pays his portion of tax — Those not paying held liable as if partition had not been made — A tax on lands at judicial sale to be paid out of proceeds of sale — Part owner paying tax on whole tract shall have lien. The statute provides that in all cases where any tract of land may be owned by two or more persons, as joint tenants, co-parceners, or tenants in common, and one or more of the proprietors shall have paid, or may hereafter pay the tax, or tax and penalty, charged or chargeable on his or their proportion or proportions of such tract, and one or more of the remaining proprietors shall have failed, or may hereafter fail to pay his or their proportion of the tax, or tax and penalty, charged or chargeable on said land, and partition by doweresa will not forfeit, din- ger v. Hoffman, 6 W. L. J. 400. Where tenant for life, without im- peachment for waste suffered the land to be sold for tax, he forfeits his life estate, and the reversioner may recover in ejectment. McMil- lan v. Robins, 5 O. 28. This for- feiture of the statute means a valid sale. If the tax sale is invalid then no valid deed can be made. Esta- brook v. Ryan, 52 O. S. 318. see also 5 C. C. 315. The act of forfeiture by life tenant does not per se cast title on the reversioner or remainder- man. Title can come to them only by decree of court. Johnson v. Petitt, 1 C. S. C. R. 25. The pur- chaser of an estate in remainder at a sale on foreclosure of a mortgage upon the estate made subject to the life estate on which the remainder is limited cannot claim a forfeiture of the life estate from a sale of the lands at delinquent tax sale and a failure to redeem within the time prescribed by this statute, when the omission occurred prior to the foreclosure, and there is nothing to show but that the forfeiture was waived by the mortgagor. Chaffee v. Foster* 52 O. S. 358. Forfeiture of the land does not defeat the estate of doweress. There must be an actual sale. Clason v. Ward, 1 N. P. 218. Creditors of one who owns a homestead cannot claim a for- feiture. Allen v. Russell, 50 O. S. 137. isGen'l Code, §5689 (R. S. § 2852). See Bates v. Peoples, etc., 42 0. S. 655. § 410 MERWINE ON REAL ACTIONS. 530 of said land has or shall be made between them, the tax, or tax and penalty, paid as aforesaid, shall be deemed to have been paid on the proportion or proportions of said tract, set off to the proprietor or proprietors, who paid his or their proportion of said tax, or tax and penalty; and the proprietor or proprietors so paying the tax, or tax and penalty, as afore- said, shall hold the proportion or proportions of such tract set off to him or them as aforesaid, free from the residue of the tax, or tax and penalty charged on said tract, set off to the proprietor or proprietors who shall not have paid his or their proportion of said tax, or tax and penalty, shall be charged with and held bound for the portion of said tax, or tax and penalty, remaining unpaid, in the same manner as if said partition had been made before said tax, or tax and penalty, had been assessed, and said proportion or pro- portions of said tract, originally listed for taxation, in the name or names of said delinquent proprietors; and whenever any lands so held by tenants in common shall be sold upon proceedings in partition, or shall be taken by the election of any of the parties to such proceedings, or when any real estate shall be sold at judicial sale, or by administrators, executors, guardians or trustees, the court shall order the taxes and penalties, and the interest thereon against such lands, to be discharged out of the proceeds of such sale or election; and any part owner, who shall pay the tax on the whole tract or tracts of which he is part owner, shall have a lien on the shares or parts of the other part owner for the tax paid in respect of their shares or parts, which, with interest thereon, he shall be entitled to receive on sale or parti- tion of such lands, and the collection of which, with interest, he may enforce like any other lien or charge. 13 Sec. 410. General taxes paid out of proceeds of judicial sale —When. The Supreme Court of Ohio in construing the foregoing statute (§ 2854) has held that real estate sold at judicial sale. or by administrators, executors, guardians or trustees, on or sn'1 Code, 5 5600 (R. P. v. Lindsay. 47 <>. S. 437; Morelein, 854 I. See also Callihan v. Hose. etc., v. WeBtmeier, 4 C. C. 296; Cin- 2 W. L. II. 281 : Sprihgmeier v. cinnati v. Lingo, et ah, 13 C. C. 337. Blackwell, :i W. L. B. 1160; Clark 531 TAX LIEN FORECLOSURE. § 411 after the first day of October, against which taxes stand legal- ly charged upon the tax duplicate, sjich taxes together with any penalty and interest thereon at the time of such sale, may, under this statute, be ordered discharged out of the proceeds of such sale; and for th* j purpose of being so dis- charged, the taxes charged against the land become due and payable within the meaning of the last clause of (ien'l ('ode §5690 (R, S. §2854), on the first day of October, annually, that being the date on which the duplicate of taxes is required by law to be placed in the possession of the county treasure!-, and this clause of the statute is not affected by the other statutory provision that the lien of the State for taxes shall attach on the day preceding the second Monday of April annually. 14 Sec. 411. The rule as to payment of assessments out of pro- ceeds of a judicial sale of real estate. Assessments for municipal improvements are generally made payable in yearly installments. Such installments that are certified to the county auditor and are due and payable within the year next after the last day of September in any year, should be placed upon the duplicate of the county for such year and collected as other taxes. Installments which are properly entered upon the annual county duplicate, should be collected the same as other taxes, and in case of a judicial sale of real estate, or sales by administrators, executors, guardians or trustees, made after the last day of September in any year, such installments as stand unsatisfied upon such duplicate should be paid out of the proceeds of such sale, as pro- vided as to other taxes in Gen'l Code, §5690 (R. S. §2854). Installments not due and payble within the year next after the last day of September, remain a lien upon the real estate in the hands of the purchaser at such judicial sale or sales by adminis- trators, executors, guardians or trustees, and such purchaser takes such real estate burdened with the lien of such unmatured assessments and he has no right to have the same paid out of the proceeds of such sale. Neither has such municipality such right. 15 nHoglan v. Cohen, 3(1 O. P. 430: "Makley v. Whitmore, 01 O. P. see also Ketcham v. Fitch, 13 O. S. 587. 201; Creps v. Baird, 3 O. S. 277. § 412 MERWINE ON REAL ACTIONS. 532 Sec. 412. Delinquent land list — Cuyahoga and Hamilton Counties — How published. Each county auditor must cause the list of delinquent land in his county to be published weekly for two weeks between the 20th day of December and the 3rd Tuesday in January next ensuing, except in counties containing a city of the first or second grade of the first class, in which such list is to be published between the twentieth day of December and the first Monday in February, in one newspaper in the English language, and no more, printed and of general circulation in his county, and also in one newspaper of the German language, if there be printed and published a newspaper in the German language, and of general circulation therein, and if no paper be printed therein, then in some paper in the English language, having general circulation in his county, to which list there must be attached a notice that said delinquent lands will be sold by the county treasurer, as provided in Gen'l Code, § 5J11 (R. S. §2870), which said notice shall be in substance as follows, that is to say: DELINQUENT TAX SALE. The lands, lots and parts of lots returned delinquent by the treasurer of County, together with the taxes and penalty charged thereon agreeably to law, are contained and described in the following list, viz. : (Here insert the list with the name or names of the owner or owners of the said respective tracts of land, or town lots, as the same are de- signated on the duplicate), and notice is hereby given that the whole of said several tracts, lots or parts of lots, or so much thereof as may be necessary to pay the taxes and penalty charged thereon, will be sold by the county treasurer at the court house in said county on the third Tuesday of January, , unless said taxes and penalty be paid before that time, and that the sale will be continued from day to day, until the several tracts, lots and parts of lots, shall have been sold or offered for sale. 10 ie Gen'l Code, § 5704 (K. S. S. §2870. Mathers v. Bull, 19 C. § 2864). This does not change re- C. 657; Mathers v. Lewis, 18 C. C. quirements of Gen'l Code, § 5711 (R. 134. 533 TAX LIEN FORECLOSURE. §§ 413-416 Sec. 413. A failure to comply with the requirement of the statute as to advertisement defeats title of purchaser. The courts of this State have steadfastly held that a failure to comply with the terms of this statute will invalidate the title to a purchaser of such delinquent lands. 17 Sec. 414. Auditor to compare delinquent list with duplicate. Immediately before advertising such list of delinquent lands and lots, it is made the duty of the county auditor to compare the same with the duplicate in the hands of the county treas- urer, and strike therefrom all lands or town lots upon which the taxes, interest, and penalty of the preceding year, with the taxes of the current year, shall have been paid, and pro- ceed to advertise the remainder as herein provided. 18 Sec. 415. Copy to be inserted at foot of record of delinquent list — Certificate as to their publication. The county auditor is required, on or before the day of sale mentioned in such notice, to insert, at the foot of the record, on delinquent list, a copy of such notice, and is re- quired moreover to certify on said record, immediately follow- ing such notice, the name of the paper, and the length of time such list and notice were published therein. 19 Sec. 416. Proceedings when delinquent list not published. In all cases where any county auditor, by inadvertence or mistake has omitted, or in any future year omits to pub- lish the delinquent list of his county, according to the require- ments of law, it is made his duty, in case the taxes and penalty with which the land and town lots therein stand charged shall not have been paid before the tenth day of August of the next succeeding year, to charge the said lands and town iTKellogv. McLaughlin, 8 0. 114; isQen'l Code, § 5707 (R. S. Magruder v. Esmay, 35 0. S. 221; § 2866). As to purpose of adver- Winder v. Sterling, 7 0. (pt. 2) tisement, see Carlisle v. Longworth, 190; Hughy v. Horrel, 2 0. 231; 5 0. 368; Wilkins v. Huse, 9 0. Rhodes v. Gunn, 35 0. S. 395. See 154 ; Lafferty v. Byers, 5 0. 458. also in this connection Carlisle v. 19 Gen'l Code, § 570S (R. S. Longworth, 5 0. 368; Wilkins v. § 2867). Failure to comply with Huse, 9 O. 154; Lafferty v. Byers, the provisions of this statute will 5 0. 458. invalidate the sale. Magruder v. Esmay, 35 0. S. 233. §§ 417-419 MERWINE ON REAL ACTIONS. 534 lots with the said taxes and penalty, and also the taxes of the current year, and record, certify, and publish the same as part of the delinquent list. 20 Sec. 417. Omitted publication. In any county where the county auditor heretofore by in- advertence, mistake, or otherwise, shall have omitted to publish the delinquent list of his county according to the requirements of law, the publication must be made according to the pro- visions of Gen'l Code § 5709 (R. S. § 2868). Sec. 418. Paper containing list to be sent to auditor of State, and printer's account. It is made the duty of the county auditor to send by mail to the auditor of State one paper containing the list of delin- quent and forfeited lands, and a copy of the account of the printer, as sworn to by him and allowed by the auditor. 21 Sec. 419. Sale of delinquent lands— Conditions — Cuyahoga county. The county treasurer or his deputy is required to attend at the court house in his county, on the third Tuesday in January, in conformity with the notice prescribed in Gen'l Code, § 5704 (R. S. § 2864), and is required then and there at and after the hour of ten in the forenoon to proceed to offer for sale, separately, each tract of land, or city or town lot, or part of lot, contained in said advertisement, on which the taxes and penalty shall not have been paid; and the person or persons offering at said sale to pay the taxes and penalty charged on such land, lot or part of lot, for the least quantity thereof, shall be the purchaser or purchasers of such quantity, and the treasurer shall continue such sale from day to day until each tract, lot or part of lot contained in such advertisement on which the taxes and penalty remain unpaid, shall have been sold or offered for sale. Pro- vided, that in counties containing a city of the first or second grade of the first class, the sale of the lands on which the taxes and penalty shall not have been paid, shall begin on the first zoOon'l Code, §5700 (R. S. statute must be complied with, or §2868). the sale will be invalid. Rhodes v. 2i Gen'l Code, §5710 ( R. S. fJunn, 35 O. S. 395. § 2869). The provisions of thia 535 TAX LIEN FORECLOSURE. §§420,421 Tuesday after the first Monday of February, and the sale thereof shall continue from day to day until each tract, lot or part of lot contained in such advertisement on which the taxes and penalty remain unpaid, shall have been sold or offered for sale. 22 Sec. 420. How to proceed if purchaser fails to pay. The person or persons purchasing such tract of land or town lot or any part thereof must forthwith pay to the treasurer the amount of taxes and penalty charged thereon; and on failure so to do, the treasurer is required immediately to offer said land or town lot again for sale, in the same manner as if no such sale had been made ; and the person so failing to make payment / shall forfeit and pay a penalty of twenty-five per centum on the amount of said tax and penalty to be recovered by a civil action, in the name of the treasurer, for the use of the county, before any justice of the peace or court having jurisdiction thereof. 23 Sec. 421. County auditor or deputy to attend sales of delin- quent lands — To forward copy of record of sales to auditor of State. The county auditor, or his deputy must attend all such sales of delinquent lands and lots made by the treasurer of his county, and is required to make a record thereof in a substan- tial book, therein describing the several tracts of land and lots sold at said sale, as the same shall have been described in the advertisement aforesaid, and stating how much of each tract of land or lot was sold, and to whom sold ; and if any tract or lot remain unsold for want of bidders, he must so enter it in a substantial book kept for that purpose in the county auditor's office, to be designated the forfeited land record of said county ; and the auditor must make out and certify a copy of all lands forfeited at each annual delinquent tax sale, and forward the same to the auditor of State each year at the time of making the settlement with the county treasurer, next after such sale. 24 22Gen'l Code, § 5711 (R. S. §> 2872). Failure to comply with § 2870). the requirements of this statute will 23 Oen'l Code, § 5712 (R. S. invalidate a sale. Majjruder v. Es- §2871). may, 35 0. S. 204. As to verifica- 2*Gen'l Code, §5713 (R. S. tion of delinquent list; see Ward v. § § 422-424 MERWINE ON REAL ACTIONS. 536 Sec. 422. Certificate of purchase of delinquent lands — Duty of county surveyor under such certificate. The auditor must make out and deliver to the purchaser of any lands or lots sold for delinquent taxes as aforesaid, a certificate of purchase, therein describing the land or lots so sold as the same was described in the tax duplicate, and stating therein the amount of taxes and penalty for which the same was sold ; and if only a part of a tract be sold, such certificate shall specify the quantity sold, and shall be directed to the county surveyor, whose duty it shall be, when requested by the purchaser, his assignee, or heirs, to lay off by metes and bounds, in a square, as near as practicable, at the most north- westerly corner of the tract from which the sale was made, the quantity so sold ; and if the sale be made from an inlot or outlot in any town, or from any particular part thereof, it shall be the duty of the county surveyor so to lay off the part or portion sold, that it shall include the most northwesterly corner, and where there is not a most northwesterly corner, then the most northerly corner shall take precedence as the point where the description shall begin, and it shall extend from the main or principal street, road, or alley which may be the most convenient front to such lot, to the rear of the lot, and to bound the same by lines as nearly parallel with the outlines of such lot as practicable. 25 Sec. 423. When survey and deeds shall be made. Xo deed can be made by the county auditor for any land or lot sold as aforesaid for taxes, until the expiration of two years from and after such sale; nor can the survey thereof, required by the certificate of purchase, be made until the expiration of that time. 26 Sec. 424. Certificates assignable. Said certificates of purchase are assignable in law, and an assignment thereof will vest in the assignee or his legal repre- sentatives all the right and title of the original purchaser. 27 Barrows, 2 0. S. 241; Harmon v. 26 On'l Code, § 5717 (E. S. Stockwell, 9 0. 93; Hollester v. § 2874). Bennett, 9 O. 83 ; Skinner v. Brown, ^ Gen'l Code, §5718 (K. S. 17 ii. s. 33. § 2875). ZBGenl Code, § 5715 (R. S. § 2873). 537 TAX LIEN FORECLOSURE. §§425,426 Sec. 425. When auditor to make deeds — When two or more tracts are sold to one purchaser, auditor to make one deed. At any time after the lapse of two years from the time of such sale for taxes, if the land or lot so sold shall not have been redeemed, the county auditor or any of his successors in office must, on request, and on production of the certificate of purchase, and in case of the sale of part only of a tract of laud or lot, on production of the county surveyor's return of a sur- vey, in case he shall deem such a survey necessary, in con- formity with the requisitions of such certificate, execute and deliver to the purchaser, his heirs, or assignees, as the case may be, a deed of conveyance for the tract of land or town lot, or such part thereof as shall have been sold as aforesaid ; pro- vided, that when two or more parcels of the same tract or lot of land have been or shall hereafter be sold for the non-pay- ment of taxes, to the same purchaser or purchasers, it shall be the duty of the county auditor, on production of the cer- tificates of the purchaser, or on production of the county surveyor's return of surveys thereof, in conformity with said certificates, when such surveys are required, to execute and deliver one deed of conveyance of the several parcels so sold, to the purchaser or purchasers, his or their heirs or assignees, which deed so executed or delivered shall vest in the grantee or grantees, his, her or their heirs or assigns the same title, both in law and equity, as if the several deeds for each and every parcel so sold were or had been executed. 28 Sec. 426. Title by deed and its effect as evidence. The deed so made by the auditor vests in the grantee, his or their heirs and assigns a good and valid title, both in law and equity, and will be received in all courts as prima facie evi- dence of a good and valid title in such grantee, his heirs and assigns. 29 But it must be first proven that the deed is so made by the auditor before it shall be deemed prima facie evidence of a valid title. In other words, our courts have held that before a deed will be so considered, it must first appear in evidence ssGen'l Code. § 5719 (R. S. ^ Gen'l Code, § 5721 (R. S. § 2876). See No. 359 for form for § 2877). auditor's deed. §§427,428 MEKWINE ON REAL ACTIONS. 538 that all of the steps required by law leading up to, and at the sale have been strictly complied with. 30 Sec. 427. Sale for tax cuts out previous liens and bars dower. It has been held that all of the proceedings under the statute for the sale of lands for the non-payment of taxes, are in rem and not in personam ; that they operate, if at all, upon the land itself, and not merely upon the title of the person in whose name it may have been listed for taxation; that a valid tax title extinguishes all previous titles, legal or equitable, inchoate or perfect, and the purchaser takes the premises dis- charged from all previous liens and incumbrances whatever, and that a valid sale and conveyance of lands, for the non- payment of taxes, will bar even the favored right of dower. 31 Sec. 428. In what case survey of land sold for taxes dispensed with. In all cases where the whole of any tract of land has been heretofore or may hereafter be sold for non-payment of taxes, in different parcels to different purchasers, and the certificates of the sale of which said several parcels comprising the whole of said tract of land shall or may come into the possession of any one of said purchasers or their assignee by assignment, it shall be lawful for the county auditor of the proper county to dispense with the survey of said separate or different parcels, and to make, execute, and deliver one deed of conveyance for the whole of said tract to the assignee or purchaser so having the said certificates in his possession by assignment; which deed so executed and delivered shall vest in the grantee, his or her so Carlisle v. Longwortli, 5 0. 368; Jones v. Devor, 8 0. S. 430; Rhodes v. Gunn. 35 O. S. 387; Ma- gruder v. Esmay, 35 0. S. 234: Steel v. Pogue, 15 C. C. 149; Skinner v. Brown, 17 0. S. 33; Cottoge, etc. v. Bacon. 2 N. P. 205; but see Turney v. Yeoman, 14 O. 208: Stanberry v. Sillon, 13 O. S. 571; Douglas v. Dangerfteld, 14 0. 522: Fitzpatrick v. Foresythe, 7 A. L. R. 411: Stnnbery v. Carlisle, 35 O. S. 214. Tbe recital in a tax deed is not, in general, proof of itself of the facts recited. Thompson v. Gotham, 9 O. 170. Nor will the recital and description in the deed cure defect in description as listed, Turney v. Yeoman, 16 0. 24. Chan- cery cannot aid to cure defective de- scription. Gwynne v. Neiswander, 20 0. 552. One in possession and in whose name land is listed as owner, can claim no additional title by allowing the same to go to sale and purchasing the same and taking a deed therefor. Jones v. Devore, 8 O. S. 430. si Jones v. Devore, 8 O. S. 430; Gwynne v. Nieswanger, 20 0. 556. 539 TAX LIEN FORECLOSURE. §§ 429, 430 heirs or assigns, the same title, both in law and equity, as if separate deeds for each and every pareel of such tract so sold were or had been made after and upon the proper surveys heretofore required to be made in conformity with the laws then in force upon the subject. 32 Sec. 429. Purchaser of the interest of joint tenant, etc., to hold in common. The purchaser, at a sale of lands or lots for taxes, of the interest of any joint tenant, tenant in common, or co-parcener, or of any part or portion of such interest, shall, on obtaining the deed from the auditor for the part or portion so by him purchased, hold the same as tenant in common with the other proprietor or proprietors of such land or lot, and be entitled to all the privileges of a tenant in common until legal parti- tion of such land or lot shall be made. 33 Sec. 430. Title acquired at tax sale invalid, when. By the statutes of Ohio, a title acquired by purchase at a sale of lands for delinquent taxes is as good and indefeasible as any other title, if every step leading up to the sale, required by statute, has been taken. In case there has not been a strict compliance with each provision of the statute, then the party whose lands were sold for the payment of the taxes can recover the same, on payment to the purchaser of such lands the amount he has paid together with interest thereon. Indeed, our courts have been so astute to find defects at tax sales that it has become a matter of general opinion among the lawyers of this State that no tax title can be supported. 34 Any one who asserts title to real estate by an auditor's deed at delinquent tax sale has the burden of showing the regularity and legality of the proceedings on which it is based, in every minute detail, from the valuation of the property for taxation, to and including the sale ; and the least irregularity or defect in any of the steps required to be taken is fatal, and renders the deed unavailable to cast title. 35 32Gon'l Code §5722 ( R. S. 34 McMillen v. Robbins, 5 O. 28. e 9^78 \ 35 Cook v. Prosser, 14 C. C. 137. 3* fien'1 Code, § 5723 (R. S. § 2879). §§431,432 MERWINE ON REAL ACTIONS. 540 Sec. 431. In tax sale of delinquent lands — The statutes author- izing the sale to be strictly construed. In every case where there is a reliance on a legal title ac- quired by a purchase of land at a delinquent tax sale, every step of the statutes under which such sale has been made, must be strictly complied with. It has always been the policy of the law in this State to require of such purchaser, when he seeks to establish title to real estate so acquired, to show by record evidence a strict compliance with every step required by the law authorizing a sale. 36 And it may be shown dehors the record that the statute has not been complied with. 37 Sec. 432. Lien of tax purchaser for purchase money, etc., if sale invalid. Upon the sale of any land or town lot for delinquent taxes, the lien which the State had thereon for taxes then due is transferred to the purchaser at such sale; and if such sale proves to be invalid on account of any irregularity in the pro- ceedings of any officer having any duty to perform in relation thereto, the purchaser at such sale is entitled to receive from the proprietor of such land or lot the amount of taxes, interest, and penalty legally due thereon at the time of such sale, with interest thereon from the time of payment thereof, and the amount of taxes paid thereon by the purchaser subsequent to such sale ; and such land or lot will be bound for the payment thereof. 38 If the sale is invalid, the purchaser can only recover from the owner, or enforce a lien against the land, for the amount of the taxes paid, with interest and without penalty. 39 In a later case it was decided that where land is sold for non-payment of taxes charged thereon and some part of such taxes is so charged illegally, such sale is void, and that where 36 Chapman v. Rollers. 38 O. S. 553; Carlisle v. Lon. 539. 39 Johnson v. Stewart, 29 0. S. ■■- Kellogg v. McLaughlin, 8 O. 498; but see Chapman v. Rollars, 114. See also Ward v. Barrows, 2 38 0. S. 378 where a sale was made < 1. <. 246; MeGruder v. Esmay, 35 under two-mile assessment tax. 0. S. 221; Reed v. Harlan, 2 0. D. 541 TAX LlEN FORECLOSURE. §§ 433-435 a tax sale proves to be invalid, the 'purchaser is entitled to receive the legal taxes, including interest and penalty legally thereon paid by him, and legal taxes subsequently paid by him, with interest from the dates of such, payments, but he is not entitled to recover illegal taxes thereon paid by him, or interest or penalty thereon. 40 Sec. 433. Sale not invalid if tract charged in wrong name. No sale of any land or town lot for delinquent taxes will be considered invalid on account of its having been charged on the duplicate in any other name than that of the rightful owner; provided, that such land or lot be in other respects sufficiently described on the duplicate and the taxes for which the same is sold be due and unpaid at the time of such sale. 41 Sec. 434. The real estate must be described so as to sufficiently identify the property. Lands advertised to be sold at delinquent tax sale must be described with such degree of accuracy as that not only the owner will be apprised that his property is delinquent, but that bidders at the sale will understand from the description just what property is intended to be sold. Any violation of this rule will invalidate the sale. 42 Sec. 435. Auditor may make deeds of lands heretofore sold. When by the provisions of any former law the collector of taxes or the county treasurer was authorized to make deeds for lands or lots by them sold for delinquent taxes, and the same has not been done, the county auditor of the proper county is authorized to make such deeds to all persons entitled thereto ; and the deeds so made by the auditor shall be as good 40 Younglove v. Hackman, 43 0. S. (SO. A sale void for irregularity entitles the purchaser to recover his payments with interest but no fees for transfers nor costs or penalties. Steel v. Pogue, 15 C. C. 14!). 4i Gen'l Code, § 5725 (R. S. § 2881). 4-' Humphries v. Huffman, 33 0. S. 395; Turney v. Yeomans, 16 O. 24; Stewart v. Aten, 5 0. S. 257; Hannel v. Smith, 15 0. 134; Gar- retson v. Hart, C W. L. J. 315: Perkins v. Dibble, 1 0. 433: Dong- lass v. Dangerfield. 10 0. 152: Bur- chard v. Hubbard. 11 O. 310; Treon v. Emerick, 6 0. 301; Lafferty v. Byers. 5 0. 458; Massie v. Long, 2'0. 287; Waltz v. Hurtz, 24 W. L. B. 110. §§ 436-438 MERWINE ON REAL ACTIONS. 542 and valid in law as if made by the person authorized under such former law to make them. 43 Sec. 436. When certificates have been lost or destroyed, how deeds made. In case any certificate or certificates have been at any time issued to any purchaser or purchasers of land for taxes, under any of the acts heretofore passed on that subject, which certifi- cate or certificates having been mislaid, destroyed, or lost, and that fact being shown to the county auditor, and no deed or deeds having been executed therefor, said auditor, being fully satisfied from evidence of the existence and loss of any such certificate or certificates, shall, on application for that purpose, proceed to make and execute to such purchaser or purchasers a good and sufficient deed or deeds of conveyance for any &uch tract or tracts of land, which deed or deeds shall be as good and valid in law, to all intents and purposes, as if such cer- tificate or certificates had not been mislaid, lost or destroyed. 44 Sec. 437. How auditor to keep minutes of deeds made. The county auditor must enter, in a book to be kept in his office, a minute of all deeds by him made for lands and town lots, or parts thereof, sold for taxes, therein naming the person who stood charged with the taxes at the; time of such sale, and the date of the sale, the name of the purchaser, a brief descrip- tion of the land or lot so sold, the quantity sold, the amount for which the same was sold, the name of the grantee in the deed, and the date of its execution. 45 Sec. 438. And to note redemption of lands. When any tract or portion of land, town lot or part thereof, is sold for taxes, and afterward redeemed, it is made the duty of the county auditor to insert a minute of such redemp- tion, the date thereof, and by whom made, on his record of sales of land for delinquent taxes, and sign the same offi- cially. 46 ♦sGen'l Code, § 572H (R. S. Gen'l Cede. § 57:M (R. S. § 2886). § 2888). «8 Gen'l Code, § 5730 (R. S. so Gen'l Code, § 5732 (It. S. § 2887). § 2889). No relief by suit will be §§443,444 MERWINE ON REAL ACTIONS. 544 Sec. 443. Redemption of delinquent lands — Limitation. All lands and town lots sold for taxes at delinquent sale, may be redeemed at any time within two years after the sale thereof; but any land sold for taxes, belonging to any person within the age of minority, of unsound mind, or imprisoned, may be redeemed at any time within two years after such disability is removed. 51 Sec. 444. How lands may be redeemed. Any person desiring to redeem any land or town lot sold at delinquent tax sale under or by virtue of any law of this State, within ,one year after the sale thereof, or within one year after the expiration of any of the disabilities named in Gen'l Code, § 5733 (R. S. § 2890), may deposit with the county treas- urer, upon the certificate of the county auditor particularly de- scribing such land or town lot, and specifying the same, an amount of money equal to that for which such land or town lot was sold, and the taxes subsequently paid thereon. by such pur- chaser, or those claiming under him, together with interest, and fifteen per centum penalty on the whole amount paid, including costs, and one dollar to pay the expense of advertising as herein- after provided; and any person desiring to redeem any land or town lot so sold for taxes after the expiration of one year from the sale thereof, and within the time limited by law for such redemption, may deposit with the county treasurer, upon the certificate of the county auditor, particularly describing such land or town lot, and specifying the same, an amount of money equal to that for which such land or town lot was sold, and the taxes subsequently paid thereon by such purchaser, or those claiming under him, together with interest and twenty-five per centum penalty on the whole amount paid, including costs, and one dollar to pay the expense of advertising, as hereinafter provided. 52 granted any one whose lands have 1) 17; State ex rel v. Touzey, 49 been sold at delinquent tax sale, 0. S. G5(>. until he has first made application 52 Gen'l Code, § 5734 (R. S. to the auditor as required by this § 2891). For decisions under this statute, Trustees v. Thoman, 51 0. section see Plumb v. Robinson. 1.'? S. 285. 0. S. 298; Masterson v. Beasley, 3 bi Gen'l Code, §5733 (R. S. 0. 301; Steel v. Pogue, 15 C. C. § 2890). See under this statute 149; as to right of appeal under Reynolds v. Leeper's Heirs, 7 0. (pt former laws see Street v. Francis, 545 TAX LIEN FORECLOSURE. §§ 445-447 Sec. 445. Joint owner, etc., may redeem his proportion. When any joint tenants, tenants in common, or co-parceners, shall be entitled to redeem any land or town lot sold for taxes, and any person so entitled, shall refuse or neglect to join in the application for the certificate of redemption, or, from any cause, can not be joined in such application, the auditor may entertain the application of any one of such persons, or so many as shall join therein, and may make a certificate for the redemption of such proportion of said land or lot as the person or persons making such application shall be entitled to redeem. 53 Sec. 446. Proceedings of party, treasurer and auditor on ap- plication to redeem. Upon the presentation of any such certificate of the county auditor to the county treasurer, for the redemption of any land or town lot sold for taxes, and upon the payment of the money into the county treasury, as aforesaid, the county treas- urer shall give the person or persons making such payment, duplicate receipts therefor, describing the property or the land or town lot as the same is described in or upon the certificate of the auditor, as aforesaid ; one of which receipts shall be registered by the treasurer, and immediately filed with the county auditor, by the person or persons or party receiving the same ; and thereupon the auditor shall forthwith cancel the sale, and transfer the property, land or town lot to the proper person or persons or party; and such receipt, when so filed, shall operate as an extinguishment of all rights, either in law or equity, conferred in any way or manner by such sale; and the auditor shall publish a notice of such redemption in the same newspaper in which the advertisement of sale had been published, for the term of three weeks, either in a weekly or a daily paper, once in each week, at an expense not ex- ceeding one dollar. 54 Sec. 447. Payment of redemption money to tax purchaser, etc. Upon the demand of the purchaser, or his legal representa- tive, and the surrender of the tax certificate, and upon the 3 0. 277; Rawson v. Boughton, 5 54 Gen'l Code, § 5737 (R. S. 0. 328. § 2893). 53 Gen'l Code, § 5736 (R. S. § 2892). §§ 448, 449 MERWINE ON REAL ACTIONS. 546 payment of the auditor's fees, the county auditor shall draw his warrant upon the county treasurer in favor of such pur- chaser or his legal representative for the amount of money so deposited as hereinbefore mentioned, with the said treas- urer, after deducting therefrom the treasurer's fees for such services. 55 Sec. 448. When auditor to note on back of certificate that deposit has not been made — Note of redemption on record of tax sales. In all cases where such deposit shall not be made within two years from the time of the sale of lands or lots sold for delinquent taxes, or within six months from that of lots or lands forfeited to the State for non-payment of taxes, the auditor shall, at the request of the person presenting such certificate, note such fact upon the back of said certificate, and sign his name thereto. When any tract or portion of land or town lot or part thereof is thus redeemed, or any deposit thus made, it shall be the duty of the auditor of the county to note such redemption or deposit, the date thereof, and by whom made, on his record of tax sales, and sign his name officially thereto.'' 6 Sec. 449. Tax purchaser's improvements — How paid for, etc. In case any lasting and valuable improvements shall have been made by the purchaser at a sale for taxes, or by any person claiming under him, in any land or town lot, for which a certificate of redemption shall be made as aforesaid, the premises shall not be restored to the person obtaining such order, until he shall have paid or tendered to the adverse party the value of such improvements; and if the parties can not agree on the value of such improvements, the same proceedings shall be had in relation thereto, as shall be prescribed in any law existing at the time of such proceedings, for the relief of occupying claimants of land; provided, that no purchaser of any land or town lot, sold for taxes, nor any person claiming under him, shall be entitled to any compensation for any im- BfiGen'l Code, $5738 (R. 8. seGenl Code, §5730 (R. S. § 2894 i . § 2895 ) . 547 TAX MEN FORECLOSURE. §§450,451 provements which he shall make on such land or town lot, within two years from and after the sale thereof. 57 Sec. 450. Sale, etc., for taxes of lands and lots, etc., under permanent lease. Where lands or lots, liable to taxation, are held upon perma- nent lease, and with improvements thereon, are taxed in the name of the lessee, if the same are suffered to become delin- quent and are brought to sale by the county auditor for the non-payment of the tax. interest, and penalty due thereon, such sale shall be confined to the right of the lessee on the premises and the improvements thereon, if the same shall be sufficient to meet the tax, interest and penalty so assessed and due: provided, that nothing herein contained shall be so construed as to require such lands or lots to be differently described on the duplicate, or advertised in any separate or distinct form or in any other manner than other lands and lots under the provisions of existing laws. 58 Sec. 451. Proceedings when land is returned delinquent upon which taxes were paid. Where any tract of land or town lots shall be returned de- linquent for the non-payment of taxes, and placed on the duplicate of the succeeding year, and the owner or person liable to pay taxes therefor shall produce the receipt of the treasurer for such taxes of the preceding year, it shall not be lawful for the county auditor or treasurer to make any de- duction from the duplicate of such tax, interest, or penalty, but the same shall be chargeable to the treasurer, as if such receipt had not been produced; provided, that it shall be the duty of the treasurer to receive such receipt in discharge of the tax for the year that is returned delinquent, with the interest and penalty; and the auditor of the county shall credit such treasurer with the amount, and shall forthwith proceed, by action, to collect such tax, interest, or penalty from tin 1 treasurer who gave such receipt; and it shall be the duty of the prosecuting attorney to attend any such suit so commenced by the auditor/' 9 57C:en"l Code. § 5741 (R. P. B9 Gen'l Code, § 5743 (R. S. § 2896). § 2898). GsOn'l Code, § 5742 (PL S. § 2897). FORMS. PROCEDURE IN FORECLOSING A TAX LIEN ON REAL ESTATE. Form Form 344. The petition. 357. 345. Order for publication for un- known heirs. 358. 340. The proof of publication. 347. The legal notice. 359. 348. Entry foreclosing lien and or- dering sale. 300. 349. The order of sale from the clerk to the sheriff. 350. The sheriff's return of his pro- ceeding under the order of 361. sale. 351. Proof of publication of legal notice of sale. 362. 352. Legal notice of sheriff's sale of real estate. 353. Appointment of appraisers. 363. 354. The oath of the appraisers. 364. 355. Appraisement. 356. Order of court confirming sale and distributing proceeds of the sale. The sheriff's deed in fore- closure of tax lien. Tax certificate — Delinquent tax sale. Auditor's deed — Delinquent sale. Petition by treasurer of coun- ty to sell real estate for payment of taxes arid street assessments. Order of sale under the above petition. Form for an answer contain- ing general denial, defense of corner lot, and the stat- ute of limitations. The reply to such answer. Another form for finding and decree of the court in the foreclosure of an assess- ment lien. County, Ohio. No. No. 344. The petition. Court of Common Pleas, M. C, Plaintiff, vs. The Unknown Heirs of C. R., Defendants. The plaintiff says that on or about the 22nd day of A. D. 18 — , one J. S. sold for a valuable consideration and by deed duly executed and acknowledged, conveyed to C. R., the following real estate, situate in the County of and State of Ohio, and being lot No. in Subdivision, known as , to the City of , Ohio, as designated and delineated on the 548 549 FORMS. plat of said subdivision of record in Plat Book No. at page in the recorder's office of said county. Said deed of con- veyance is of record in Deed Book — — at page in the recorder's office of said county. At the delinquent land sale on or about , 18 , in said County of , said lot was sold for non-pay- ment of taxes to L. W. for $ , the amount of taxes and penalty on said lot for the years 19 — and 19 — , for which H. J. C, auditor of said county delivered to said purchaser a proper certificate. Thereafter said certificate was duly transferred for a valuable con- sideration to the plaintiff, M. C, who is the owner and holder there- of and has paid the subsequent taxes and assessments on said lot as follows: . Said tax sale was invalid and void for the reason, among others, that in the return by the treasurer of said lot in the list of lots and lands delinquent for payment of taxes on which said proceedings and sale were founded there was no marginal note or other state- ment of the reason why said treasurer was unable to collect said taxes. Under the statute for such cases made and provided, the plaintiff has a lien on said lot for the aggregate amount so paid as aforesaid for said lot at said tax sale and the several subsequent payments of taxes and assessments aforesaid amounting to $ , together with the interest at six per cent, per annum of the amount of each of such payments from the date thereof. Since the aforesaid tax sale the said C. R. has deceased, being at the time of her death a non-resident of Ohio, and plaintiff does not know and has not been able by diligent inquiries to find out who are her heirs at law, or the name or residence of any such heirs. By reason of the premises the plaintiff prays that said unknown heirs of said C. R. may be made parties to this action by publication as provided by law; that plaintiff's said lien may be foreclosed and said lot sold and the proceeds applied to the payment of said lien, and for all other and further relief to which plaintiff is entitled. Attorneys for Plaintiff. State of Ohio, County, ss. : O. H. M., being first duly sworn, says that he is attorney for the plaintiff in this case, that the facts stated in the foregoing peti- tion are within his personal knowledge, and are true; that the said C. R. is dead, and affiant has made diligent inquiries to learn the name of any living relative or heir of said C. R. without success, and the names and residence of her heirs are unknown to plaintiff and this affiant. Sworn to before me and subscribed in my presence by said O. H. M., day of . A. D. 19 . Notary Public, County. MERWINE ON REAL ACTIONS. 550 No. 345. Order for publication for unknown heirs. (Same caption as in the petition.) It being made to appear to the court by affidavit that the names and residences of the heirs of C. R., after diligent inquiries having been made, are unknown to said plaintiff, it is ordered that notice of the pendency, objects and prayer of the petition herein be given to the said defendants by publication weekly for six successive weeks in some newspaper published and of general circulation in said county of . No. 346. The proof of publication. State of Ohio, County, ss.: J. H. B., foreman of The , a newspaper published and printed in , County, Ohio, personally appeared and made oath that the attached printed advertisement was published six consecutive weeks in said newspaper, from , 19 ; and that said newspaper is of general circulation in said county. J. H. B. Subscribed and sworn to this day of , 19 . F. S. Notary Public in and for County. No. 347. The legal notice. (Same caption as in the petition.) Attached Advertisement. The unknown heirs of C. R., deceased, will take notice that on the day of , 19 , M. C. filed his petition in the Common Pleas Court, County, Ohio, in cause No. against the unknown heirs of C. R., deceased, which case is now pending in said court, the object and prayer of which is to foreclose the tax lien held by plaintiff and to satisfy the same to sell the following described premises situate in the County of , and State of , and in the City of , and being lot No. — Subdivision known as Addition to the City of as designated and delineated on the plat of record in Plat Book , page , recorder's office of said county. Said parties are required to answer on or before the day of , 19 , or judg- ment may be taken against them as prayed for. Attorneys for Plaintiff. No. 348. Entry foreclosing lien and ordering sale. (Same caption as in the petition.) Now comes the plaintiff, by his attorneys, and offers proof of pub- lication of the pendency and prayer of the petition herein; and the 551 FORMS. court finding said publication and proof in all respects regular and according to law, do hereby approve the same. And the court finding that it has jurisdiction in the premises and that the defendants, the unknown heirs of C. R., deceased, are in default for answer or demurrer, it is ordered that this cause be placpd upon the assignment of causes for hearing this day. Thereupon thi? cause came on for hearing, and was heard and submitted to the court upon the petition and the evidence, and on consideration thereof the court finds the allegations in plaintiff's petition to be true, that plaintiff has a lien upon the real estate de- scribed in the petition, viz.: On lot in the amended subdivision known as Addition to the City of , county, Ohio, as said lot is designated and delineated upon the plat of said subdivision of record in the recorder's office of said county in Plat Book at page , said lien being for the taxes paid by plaintiff, as set forth in his petition, and for the amount of $ , with interest included up to the first day of this term of court, and that plaintiff is entitled to have his said lien foreclosed. It is therefore by the court considered, adjudged and decreed that unless the defendants, the unknown heirs of C. R., deceased, or some one in their behalf, shall, within three days from the entry of this decree, pay to the said M. C, or his attorneys, the said sum of $ , with interest from the first day of this term, and to the clerk of this court the costs of this action taxed at $ , said real estate shall be sold as upon execution and an order shall issue there- for to the sheriff of County, and that said sheriff bring the proceeds of said sale into court for further order. On motion and for good cause shown, German publication is hereby dispensed with. No. 349. The order of sale from the clerk to the sheriff. The State of Ohio, County, ss. : To the Sheriff of said County, Greeting: Whereas, at a term of the Court of Common Pleas, held at in and for said county, on the day of , A. D. one thousand nine hundred , in the cause of M. C, plaintiff, and the unknown heirs of C. R., defendants, it was ordered, ad- judged and decreed as follows, to-wit: That plaintiff has a lien upon the real estate described in the petition viz.: (Here insert description of real estate), said lien being for the taxes paid by plaintiff as set forth in his petition and for the amount of $ — with interest included up to the first day of this term of court, and that plaintiff is entitled to have his said lien foreclosed. It is therefore by the court considered, adjudged and decreed that unless the defendants, the unknown heirs of C. R., deceased, or some one in their behalf shall within three days from the entry of this decree, pay to said M. C, or his attorney the said sum of ? MERWINB ON REAL ACTIONS. 552 with interest from the first day of this term and to the clerk of this court the costs of this action taxed at $ , said real estate shall be sold as upon execution and an order shall issue therefor to the sheriff of County, and that said sheriff bring the proceeds of said sale into court for further order. German publication dispensed with. We Therefore Command You, that you proceed to carry said order, judgment and decree into execution agreeably to the tenor thereof, and that you expose to sale the above described real estate, under the statute regulating sales on execution, and that you apply the proceeds of such sale in satisfaction of said judgment and decree, with costs and interest, as specified therein; and that you make report of your proceedings herein, to our Court of Common Pleas within sixty days from the date thereof, and bring this order with you. And I certify under seal of court that the description of property herein is correctly copied from the records of this case on file in this office. Witness my signature as clerk of our said court of Common Pleas, and the seal of said court, at , this day of , A. D. one thousand nine hundred ■ . J. W. M., Clerk, By J. R., Deputy. No. 350. The sheriff's return of his proceeding under the order of sale. The State of Ohio, County, ss.: In obedience to the command of the order of sale hereto annexed, I did, on the day of , A. D. one thousand nine hundred , summon L. C. L., A. P. S. and J. J. B., three dis- interested freeholders, residents of said county, who were by me duly sworn to impartially appraise the lands and tenements therein de- scribed, upon actual view, and afterward, on the day of , A. D. one thousand nine hundred , said appraisers returned to me, under their hands and seals, that they did, upon actual view of the premises, estimate and impartially appraise the veal value in money of the same at dollars. A certified copy of said appraisal I forthwith deposited in the office of the clerk of Court of Common Pleas of said county. And on the day of , A. D. one thousand nine hundred , I caused to be advertised in the (a newspaper printed and published and of general circulation in County, Ohio), said lands and tenements to be sold at public sale at the door of the court house of said county, on the day of , A. D. one thousand nine hundred , at o'clock, m. of said day. And having advertised the said lands and tenements for more than thirty days previous to the day of sale, to-wit: five consecutive weeks on the same day of the week in each week; and in pursuance of said notice, I did, on said day of , A. D. one thousand nine hundred , a t the time and place above mentioned, pro- ceed to offer said lands and tenements at public sale, at the door 553 forms. of said court house, and then and there came M. C, who bid for the same the sum of dollars, and said sum being more than two-thirds of the appraised value thereof, and said M. C. being the highest and best bidder therefor, I then publicly sold and struck off said lands and tenements to him for said sum of dollars. G. J. K., Sheriff. No, 351. Proof of publication of legal notice of sale. State of Ohio, County, ss. : I, R. A. B., being duly sworn, depose and say that I am book- keeper of ; that the notice of G. J. K., sheriff, case No. of which a true copy is hereunto affixed, was published once a week for five consecutive weeks, to-wit: , , , , , and immediately prior to the day of , A. D. 19 , the day of sale therein mentioned in The , a daily newspaper printed in the City of , County of , State of , and of general circulation therein. R. A-.-B. Sworn to before me, and subscribed in my presence this day of , A. D. 19 . C. F. P., Notary Public in and for County. No. 352. Legal notice of sheriff's sale of real estate — Sheriff's sale of real estate. Court of Common Pleas, County, Ohio. M. C, Plaintiff, vs. Case Xo. . The Unknown Heirs of Defendants. In pursuance of an order of sale from said court to me directed. I will offer for sale at public auction at the door of the court house, in the City of , County, Ohio, on the day of , A. D. , at o'clock a. m., the following described real estate situated in the County of and State of Ohio and in City of , and bounded and described as follows: (Here describe it). Said lot is situated on Avenue, Street No. . Appraised at $ . Terms of sale, cash. Sheriff. No. 353. Appointment of appraisers. The State of Ohio, County, ss.: To A. P. S.. L. C. P. and J. J. B.. Freeholders of Comity. Ohio.- Whereas, on the day of , A. D. 19 . M. C. filed in the Court of Common Pleas of said County, Ohio, MERWINE ON REAL ACTIONS. 554 a petition against the unknown heirs of C. R., praying said Court for an order to sell certain real estate described in said order, situate in the County of , and State of Ohio, and in the City of and bounded and described as follows: (Here insert de- scription of real estate). And Whereas, afterward to-wit: at the term of said court, A. D. 19 , such proceedings were had upon said petition by said court, that the sheriff of County was ordered to sell said real estate, as upon judgments and executions at law. Now, therefore, according to the statute in such cases made and provided, I do hereby call and appoint you, the said A. P. S., L. C. L. and J. J. B., an inquest and do require you, on oath, forthwith to view, estimate and appraise the real value of said premises, in money, and return to me your doings, under your hands and seals. Given under my hand and seal, this day of , A. D. 19 . G. J. K. [Seal.] Sheriff. By J. A. C, Deputy. No. 354. The oath of the appraisers. Personally appeared before me, C. J. K., sheriff of County aforesaid, the above named A. P. S., L. C. L. and J. J. B., appraisers aforesaid, who are judicious, disinterested freeholders and citizens of said County of , and were personally sworn according to law, to discharge the duties of said appointment. Witness my hand and seal, this day of , A. D. 19 . G. J. K. [Seal.1 Sheriff. No. 355. Appraisement. To G. J. K., Sheriff of County, Ohio, as aforesaid: In pursuance of the foregoing appointment, we have proceeded to view the real estate and premises above described, and from actual view of the same, we do estimate the real value thereof in money to be dollars ($ ). Given under our hands and seals, this — day of , A. D. 19 . L. C. L. [Seal.1 A. P. S. [Seal.1 J. J. B. [Seal.] No. 356. Order of court confirming sale and distributing pro- ceeds of the sale. On motion of the plaintiff, and on his producing the return of the sheriff, of the sale made under the former order of this court; and the court, on careful examination of the proceedings of said sheriff, being satisfied that the same have been had in all respects in conformity to law and the orders of this court, it is ordered that the aid proceedings and sale be, and they are hereby approved and confirmed. And said sale having been made to the plaintiff in this 555 FORMS. action and it appearing that the proceeds of sale are insufficient in amount to pay the costs of this action and the plaintiff's claim herein, it is further ordered that upon payment by the said M. C. of the costs of this action, taxed at $ , and the usual fee for the deed, the said sheriff convey to said purchaser M. C, by deed, according to law, the property so sold, and a writ of possession is awarded to put said purchaser in possession of said premises. It is further ordered that the clerk enter as a payment of plaintiff's judgment claim herein, the proceeds of said sale in excess of the costs herein paid, amounting to $ . No. 357. The sheriff's deed in foreclosure of tax lien. To all Persons to whom These Presents shall come, Greeting: Whereas, on the day of , 19 , M. C, plaintiff,. filed his certain petition and then and thereby commenced a civil action in the Court of Common Pleas, County, Ohio, agairst the unknown heirs of C. R., and numbered on the docket of said court as case No. , praying therein, among other things, for the sale of certain real estate in said petition and hereinafter de- scribed; and Whereas, it was then and there ordered, adjudged and decreed by said court in said action that unless the said defendants, the unknown heirs of said C. R. should pay the costs of said suit and to the said M. C. the amount so found due within three days from the entry of said decree, said premises should be sold and an order of sale should issue therefor to the sheriff of said County of , commanding him that he should cause the lands and tenements in said petition and order mentioned and hereinafter described, to be appraised, advertised and sold according to law, and to return his proceedings to said court; and Whereas, afterwards, on the day of , 19 , in pursuance of the said order and judgment of said court in said case directed to G. J. K., sheriff of County, Ohio, commanding him to execute the said order and in all things to be governed by the provisions of the statute in such cases made and provided and of said order, with his proceedings thereon, he should make due re- turn; and Whereas, I. G. J. K., sheriff as aforesaid, having caused sail prem- ises to be appraised and a copy of the appraisement to be duly filed in the office of the clerk of said county, and having advertised the time and place of selling the same in — . , a newspaper printed and of general circulation in said county for a period of thirty days prior to the date of sale, and otherwise complied with the said order and the provisions of the statute in such cases made and provided, on the day of , 19 , at the door of the court house in said county at o'clock, m. of said day, 1 exposed to sale at public auction the premises hereinafter mentioned, and thereupon M. C, having bid for said premises the sum of $ , and said sum being the highest and best bid offered for the same MERWINE ON REAL ACTIONS. 556 and being more than two-thirds the appraised value thereof, the said premises were then and there struck off to him, the said M. C, the purchaser, for the sum above mentioned: and Whereas, the said court, at its term, 19 , having ex- amined the proceedings aforesaid in the premises under said order of sale, and being satisfied that the sale aforesaid had been made in all respects in pursuance to said judgment and order of sale and in accordance with the provisions and requisitions of the statute reg- ulating such sales, did order that such sale should be confirmed, and that said sheriff -of County, Ohio, should convey the said real estate by deed in fee simple to the purchaser, M. C. Now Know ye, that I, the said G. J. K., sheriff of County, Ohio, as aforesaid, by virtue of said judgment, order of sale and confirmation, and of the statute in such cases made and provided and for and in consideration of the premises herein in the sum of $ , which I acknowledge to have received from the purchaser above named, do hereby grant, sell and convey to him, the said M. C, his heirs and assigns, forever, the following described real estate situated in County, State of Ohio, and in the City of , and described as follows: (Here insert description of real estate), to- gether with all the privileges and appurtenances thereto belonging and all the right, title and interest of the said G. J. K., sheriff of County, Ohio, and of all the other parties of and to the same. To Have and to Hold the premises aforesaid unto the said M. C, his heirs and assigns forever, as fully and completely as the said G. J. K., sheriff of County, Ohio, by virtue of said judgment, order of sale and confirmation and of the statutes made and provided for such cases, might or should sell and convey the same. In Witness Whereof, I have hereunto set my hand and seal this day of — , 19 . [Seal.] Sheriff of County, Ohio. Signed, sealed and acknowledged in presence of State of Ohio, County, ss. : Personally appeared before me, a notary public within and for said county, the above named G. J. K., sheriff of County, Ohio, and grantor in the above deed of conveyance, who acknowledged the signing and sealing of the same to be his voluntary act and deed for the uses and purposes therein mentioned. In Witness Whereof, I have hereunto set my hand and seal this ■ day of , 19 . [Seal.] Notary Public, County, 0. OO i FORMS. No. 358. Tax certificate — Delinquent tax sale. State of Ohio, County, ss.: I, , county auditor of County, do certify that there was sold unto *-, Township of , entered on tax duplicate in the name ot , to whom said land, lot or part of lot was charged with tax and penalty for the sum of dollars, the amount due on above described premises for the years and . For which lot or tract of land the said purchaser or his assigns will be entitled to receive a deed on presentation of this certificate, at the expiration of two years from this date unless the same shall have been redeemed prior to that time. Given under my hand and seal this day of , A. D. . . County Auditor. To the County Surveyor of said County: You are hereby authorized and required, whenever requested by the purchaser or his assigns, to lay off by metes and bounds the above described lot or parcel of land, according to the statute in such case made and provided. , County Auditor No. 359. Auditor's deed — Delinquent sale. Know all Men by these Presents, That, whereas, the county treasurer ot County, Ohio, did, on the day of , A. D. , sell according to the provisions of the statute in such cases made and provided, to a part of the following described lot or parcel of land, situated in the said County of , for the taxes, interest and penalty charged thereon for the year , and also the simple tax for the year , and listed for taxation on the duplicate of said county, in the name of , to-wit: (Here describe real estate). And the same having been duly advertised, agreeably to law, and the taxes, interest, and penalty due thereon remaining unpaid on the day of , A. D. , the time appointed by law, and also in and by the advertisement for the sale of delinquent lands set forth, the said was by , treasurer of said county, between the hours of ten o'clock in the forenoon and six o'clock in the afternoon of said day offered for sale, at which time and place came , who bid to pay said taxes, interest and penalty for , being all of the said above mentioned, and there being no bidder who would pay the taxes aforesaid for a less quantity, the said were struck off and sold to the said for the sum of $ , being the amount of said taxes, interest and penalty, which said sum was forthwith paid by said purchaser to said county treasurer. And more than two years having elapsed from the time of said sale, and the land so sold as aforesaid not having been redeemed, and the certificate of said sale, duly assigned to the said having been produced to me. MERWINE ON REAL ACTIONS. 558 Now, Therefore, on request of the said I, the said auditor of said County of , in consideration of the premises aforesaid, and by virtue of the authority in me vested by the laws of the State of Ohio, do hereby grant and convey to said the premises sold as aforesaid. To Have and to Holij the said premises hereby conveyed, with the appurtenances thereof, to the only proper use and benefit of the heirs and assigns, forever. In Witness Whereof, the said , as county auditor of said County of , hath hereunto set his hand and seal officially, this day of , A. D. . (Seal.) Auditor of County. Signed, sealed and acknowledged in presence of The State of Ohio, County, ss.: Before me, the subscriber, , in and for the county afore- said, personally appeared , county auditor of said County of , and, as such, acknowledged the above instrument to be his official act and deed, for the purposes therein expressed. Given under my hand and official seal, this '■ day of , A. D. . • No. 360. Petition by treasurer of county to sell real estate for payment of taxes and street assessments. Court of Common Pleas, County, Ohio. , as Treasurer of County, Ohio, Plaintiff, vs. C. M. C, as Executor of the Last Will and Testament of H. T. C, deceased, C. M. C. and H. C. Z. ( Defendants. Petition. Plaintiff says that he is the duly elected, qualified and acting treasurer of County, Ohio; that C. M. C. is the duly appointed, qualified and acting executor of the last will and testament of H. T. C, deceased, duly appointed as such by the Probate Court of County, Ohio; that the defendants C. M. C. and H. C. Z. by the provisions of s;:id last will and testament of the said H. T. C, deceased, are the owners of the real estate hereinafter described; that taxes and assessments heretofore duly levied and assessed for lawful purposes stand charged on the tax duplicate of said county, 559 FORMS. on t he day of , 19 . against the following de- scribed real estate: (Here describe it). Said taxes and assessments are due and unpaid; that said real estate was forfeited to the State of Ohio for the non-payment of taxes, and now stands on the duplicate in the name of the State. Wherefore plaintiff prays that the defendants herein be required to answer, setting forth their claims and interests in and to said property, if any they have, or be forever barred from asserting the same; that decree may be rendered in his favor for the amount of said taxes and assessments and the costs of this action; that said real estate shall be by the court ordered sold to pay the same, subject to a lien of the undue assessments and taxes and free from all claims and interests of said defendants, and that out of the proceeds of such sale the amount so found due plaintiff be first paid and dis- tribution made according to law and for such other relief as may be just. Attorneys for Plaintiff. (This petition is verified as in other cases.) No. 361. Order of sale under the above petition. This day this cause came on to be heard upon the petition of plaintiff, the defendants and each of them being in default for answer or demurrer to the petition, thereby confessing the allegations in said petition and in each thereof to be true, and on consideration thereof the court finds the allegations of said petition to be true; that plaintiff is entitled to the relief prayed for in his petition; that said C. M. C. and H. C. Z. are the sole devisees under the last will and testament of H. T. C, deceased, of the real estate de- scribed in the petition, to-wit: (Here describe it), and that there is now due and owing to said treasurer as aforesaid, taxes and assess- ments, including the taxes and assessments due and unpaid on the day of , 19 , amounting to the sum of $ , and that said taxes and assessments so found due are the first and best lien on said real estate. Tt is therefore ordered, adjudged and decreed that unless said defendants, or some one for them, within da\ s from the entry of this decree, pay to the clerk of this court the costs of this action and to said treasurer aforesaid, the said taxes and assessments so found due, said real estate shall be sold according to law by sheriff of said county, free and clear of the lien for said taxes and assess- ments and free and clear from all claims and demands of the de- fendants herein, for the payment of such costs, taxes and assessments so found due and that the proceeds of such sale be brought into court to await the further orders thereof. For good cause shown German publication is ordered omitted. MERWINE ON REAL ACTIONS. 560 No. 362. The answer containing general denial — Defense of corner lot — And the statute of limitations. (Same caption as in the petition.) 1. First defense. Now comes the defendant, , and in answer to the petition of , as treasurer of County, Ohio, admits that she is the owner of the real estate described in the petition, the same being (here describe it). The defendant denies every other allegation of said petition not herein specifically admitted or denied. 2. Defendant, for her second defense herein, avers that on , an ordinance was passed by the council of the City of , Ohio, for the improvement of Street from Street to Street and that there was assessed against the real estate of said defendant, described herein, the sum of $ , this said sum being an assessment for feet at the rate provided in the ordinance of $ per foot, said feet being the full length of said lot xo. along Street. Defendant further avers that her said lot No. has a frontage of feet on Avenue and that no part of it fronts on Street excepting a building on the rear of said lot which fronts feet on . Defendant avers that the total frontage on which she should have been assessed is feet inches, which, at the rate of $ , should have been $ . 3. For her third defense herein defendant avers that under the ordinance said payments on said improvement were to be made in equal installments, the first becoming due and payable in , and the others in of each consecutive year from to , inclusive. Defendant avers that the interest on said assessment was made payable to , inclusive, and was charged on the books of the county treasurer in equal install- ments in and of each year from to inclusive. Defendant avers that the assessment was passed and that on , the assessment was certified to the county treasurer for collection and that from that date tbe assessment and interest due thereon have stood on the books of the said county treasurer and that he has made no effort to collect the same. Wherefore, defendant prays that the original assessment be fixed at $ , and that the statute of limitations be applied to each and all of the corrected installments and interest thereon which became due and payable more than six years prior to the bringing of this action, and prays that all said installments and interest therein be barred by the statute of limitations. Duly verified Attorneys for Defendant. 561 FORMS. No. 363. The reply to this answer. Now comes the plaintiff and by way of reply to the answer of the defendant, , says that he admits as true each and all of the averments as set forth in the second defense in the answer of said defendant and that the original amount of the said assess- ment should have been for the sum of $ as in said second defense set forth. By way of reply to the third defense of said answer plaintiff says that he admits that in the said ordinance said payments on said improvement were to be made in equal installments, as in said third defense set forth, and that the interest on said assessment was made payable and was charged on the books of the said county treasurer as in said third defense set forth. Plaintiff further admits that the assessment was passed on , and that on , the assessment was certified to the county treas- urer for collection, and that from that date the assessment and interest due thereon have stood on the books of the said county treasurer. Further by way of reply plaintiff says that he denies each and every allegation in said answer set forth not herein specifically ad- mitted to be true. Attorneys for Plaintiff. Duly verified. No. 364. The finding and decree of the court in foreclosure of an assessment lien. This day this cause came on to be heard on the petition, the answer, the reply and agreed statement of facts, and the court, upon con- sideration thereof, being duly and fully advised in the premises, finds the facts as set forth in the agreed statement of facts to be true. The court further finds that the averments of defendant as set forth in the second defense of her answer are admitted to be true in the reply of plaintiff, and that the original assessment against said lot should have been and is hereby adjudged to properly be the sum of $ , with interest thereon computed according to the said assessment ordinance. The court further finds that the install- ments of the principal should have been and are hereby adjudged to be the sum of $ , payable in equal installments in of each year, from to , inclushe, and that the semi-annual installments of interest on said assessment should have been and are hereby adjudged to be the sum of $ , payable in and of each year from to inclusive. The court further orders and directs the county auditor and county treasurer to strike from the tax duplicate any sum or sums in excess of the corrected amounts herein determined and decreed. The court further finds that all installments of said assessments and the interest thereon as in the petition set forth and for the MERWINE ON REAL ACTIONS. 562 corrected amounts as determined by this decree falling due and payable , and prior thereto, are barred by the statutes of limitation, to which finding of the court plaintiff herein excepts. The court further finds that there is due , as treasurer f County, Ohio, in his official capacity on said assessment, together with interest thereon, as in the petition set forth and as corrected by this decree, duly levied and assessed on the said lot Addition, as the same is more particularly described in the petition herein, the sum of $ , with interest from , the said sum being the amount of all installments of said corrected assess- ment and interest thereon due and payable and thereafter. It is further considered, adjudged and decreed by the court that unless the said defendant pay or cause to be paid to plaintiff, the said installments of said corrected assessment with interest as afore- said, as set forth in this decree, within three days from the entry of this decree, that said real estate be sold for the payment of said installments of said corrected assessment and interest thereon as provided by law, to all which finding and order of the court the de- fendant herein excepts. Plaintiff gives notice of appeal and appeal bond fixed at $ . CHAPTER XV. THE LAW ANT PROCEDURE WHERE DOWER IS ASSIGNED. SECTION. 452. Origin of dower. Of what estate a widow or widower is entitled — The statute. Inchoate dower. When inchoate right of dower 453. 454. 455. 45G 457. 458. 459. 400. 461. 462. 403. not assignable. Consummate dower unas- signed can not be reached by creditors, but by an ac- tion in equity. Inchoate right of dower re- leased by order of court, when. Dower subject to every in- firmity the law attaches to the seizin. Marriage necessary to create dower. The seizin necessary to create dower. To what property dower will attach. Lands in which dower will not attach. Jointure — Its character and essential elements — Post- nuptial and antenuptial contracts. 464. The right of dower in part- nership realty. 465. The widow's right of dower where there are conflicting liens and claims. -J66. Widow's right of dower in ■ partition proceedings. When she may have home- stead in addition to her di wer. In what cases she may redeem real estate and have dower assigned. 563 467. 468. SKCTIOX. 409. The effect of a defective con- veyance of dower. 470. Effect of eviction from prem- ises conveyed in lieu of dower. 471. Adultery bars dower. 472. Effect upon dower where lands are given up by fraud. 473. Dower is forfeited by waste. 474. Dower is forfeited by non-pay- ment of tax, when — Widow liable in damages, when. 475. How dower may be assigned by heirs of deceased. 476. The petition for dower. 477. Procedure incidental to such action for dower — How en- cumbrances may be set up — Cross-petition. 478. Procedure where land lies in different counties. 479. Procedure in case of death of plaintiff before assignment. 480. Appointment of commission- ers to assign dower — Duty of sheriff in such cases. 481. Proceedings upon return of an assignment of dower. 452. How dower assigned when es- tate is indivisible. 453. When estate consists of unim- proved timber land — How treated. 484. Dower during pendency of petition. 485. Exemption in estimating yearly value of dower. 486. Minor heir not to be preju- diced by collusive assign- ment. 487. Costs in action for dower. § 452 MERWINE ON REAL ACTIONS. 564 SECTION. SECTION. 488. Dower may be elected to be 496. Wife barred of dower when taken out of proceeds o& divorce granted husband on sale, when. account of her aggression. 489. Election in answer is a release 497. Dower rights when divorce of dower, when. granted by the reason of 490. Election for widow or widower the aggression of the bus- by guardian, when. band. 491. Petition to discharge land of 498. Election when person unable dower of insane person. to appear, or is a non-resi- 492. Report of committee to in- dent. quire into insanity. 499. How election of an imbecile 493. Proceedings on report of in- or insane person is made. sanity to court. 500. Effect of widow's election of 494. Lands of insane person barred non-election. of dower, how. 501. Election of widow to take 495. Conveyance of real estate free under will bars dower un- from dower, if wife or bus- less the will provides that band is insane. she shall have both. Sec. 452. Origin of dower. Dower is of very ancient origin. In fact the time of its introduction into the laws of England is quite doubtful. 1 It is known, however, that the law on the subject was classified by Glanville and by him reduced to a system. He tells us that it was the property given by a free man to his wife ad ostium ecclesiae, at the time of the betrothal. This was as early as the year 1148. In the year 1481, we find Littleton enumerating five heads of dower: (a) Dower by the common law. (b) Dower by the custom. (c) Dower ad ostium ecclesiae. (d) Dower ex assensu patris. (e) Dower de la pluis beale. Again, in the year 1225, we find it in Magna Charta, which provides on the subject as follows: "And for her dower shall be assigned unto the widow the third part of all the lands of her husband which were his in his lifetime, except, she were endowed of lessee at the church door." 2 The subject of dower has been a part of our law since the organization of the Northwest Territory; for we find pro- vision made for it in the ordinance of 1787. 3 This famous ordinance of 1787 contained the following pro- vision ;is to dower: That the estates of resident and non-resident proprietors i Allen v. McCoy, S O. 409. 3 Allen v. McCoy, 8 O. 4G9. 2 Allen v. McCoy, 8 O. 4-22; C. 7 Magna Charta. Henry III. 565 LAW AND PROCEDURE WHERE DOWER ASSIGNED. §452 in said territory, dying intestate, shall descend, etc., saving in all cases to the widow of the intestate her third part of the real estate for life. 4 Immediately after Ohio was carved as a State out of the Northwest Territory, its Legislature provided for dower by statutory enactment. 3 Ever since the organization of the State, the common law right of dower has been so modified and controlled from time to time by legislative enactment, that it would now seem to be solely a creature of the statute. 6 As our courts and text writers have so clearly set forth the 4 Allen v. McCoy, 8 0. 442; see also Ruffner v. McLean, 16 0. 041; Conger v. Barker, 11 0. S. 1. s The first enactment on this sub- ject was in 1804, and it was this: "That the widow shall be entitled, during her life, to the use of one- third part of all the real property that her husband was seized of dur- ing coverture, unless she shall have joined with her husband in the con- veyance." Ruffner v. McLean, 10 0.' 645. cMcGill v. Deming, 44 0. S. 652. ''The plaintiff insists that before the statute of 1804, no right of dower subsisted, except such as was created by these words: (Territo- rial enactment), and as they are used in no other connection, than in respect to lands descended, it is in- ferred that no right of dower sub- sisted, except in the lands of which the intestate died seized. If the estate of dower had no existence, except by virtue of the ordinance, it would be difficult to escape this conclusion. But there are certain institutions and rights which seem to have their foundation in the very constitution of the human race. No nation has been found so rude or uncivilized as not to have provided for itself rules which regulate the relation of marriage, those between parent and child, and the succes- sion of decedent's estates. And m n could no subsist, either m sociely or the family, unless these matters, at least, are controlled by some rule which possesses the force of law. In all of the nations of the Teu- tonic stock, some right of dower has been found to exist from the earliest antiquity. The right has received various modifications at -different times and in different coun- tries; but before the concessions of the Great Charter, it attuned in England the modern form, by which it attached to all lands of which the husband had seizin during cover- ture. This continues to be the law of England, and is the law in most States of the Union. Such is the common law of dower; an institu- tion existing wherever the common law obtained; a rule which each people has the power to change, but a conception which none could shake off without substituting some other provision in its stead. It was to a people, under the dominion of this idea, that the ordinance was addressed, and, far from assuming to prescribe a different rule, or con- firming r new right, it does no more than recognize an existing in- stitution, and takes care that it receive no prejudice by the opera- tion of the law of descent ~. We can regard it as no less than an au- thentic acknowledgment of the es- tate in dower at common law. to which law we must recur to learn the signification of the term and the extent of the doweress' interest." Betts v. Wise, 11 0. 222. §453 MERWINE ON REAL ACTIONS. 566 law upon the subject of dower as it exists to-day, the practi- tioner seldom, if ever, needs go back to the old learning on this subject to clear up any present difficulty. Cec. 453. Of what estate a widow or widower is endowed — The statute. A widow or widower who has not relinquished, or been barred of the same, shall be endowed of an estate for life in one-third of all the real property of which the deceased consort was seized as an estate of inheritance at any time during marriage, and in one-third of all the real property of which the deceased consort, at decease, held the fee simple in reversion or remainder ; and also in one-third of all the title or interest that the deceased consort had, at decease, in any real property held by article, bond, or other evidence of claim ; and the widow or widower may remain in the mansion house of the deceased consort, free of charge, for one year, if dower is not sooner assigned; but dower shall not be assigned to any widow or widower in any real property of which the de- ceased consort, at decease, held the fee simple in reversion or remainder until the termination of the prior estate. 7 Early in the judicial history of the subject of dower our courts refused to adopt the quaint, old and almost incom- prehensible learning as to the law of dower, and the subject is now regarded as follows: It is considered that the statute laws of Ohio, from the pro- visions in the ordinances, and running through every enacU ment to this day, contemplated dower as a plain, unentangled interest of the wife in the real estate of the husband. The remedy given to obtain it, when refused, is made simple and direct. It is all an honest, homespun concern of our own, standing distinct from precedents and analogies of other countries, and upon a basis sufficient to sustain it.* Her dower right is a favorite in law, and its protection under the law is equal to that accorded to her other property. Her dower right is superior to that of the creditors of her husband. 9 It is, of course, unnecessary to state in this connection that TGen'l Code, §8606 ( R. S. "Woml, J., in Allen v. McCoy, 8 §4188). 0. 467. 9 Mandel v. McClave, 46 O. S. 414. 567 LAW AND PROCEDURE WHERE DOWKR ASSIGNED § 454 the husband has the same right to dower in the real estate of the wife that the wife has in the real estate of the husband, and his dower rights are governed and controlled by the same law in exactly the same manner as his wife's dower right. Hereafter, when the language as to dower applies to the wife, it will also be understood to apply to the husband as well; for the statute now provides that all of the law relating to the assignment of dower of a wife, shall apply to the assign- ment of the dower of a husband as far as applicable, 10 and the estate by curtesy is abolished, vested rights being pre- served. 11 Since the law was changed so as to give the husband dower in the wife's property, the wife's dower interest remains the same as it did before the passage of the statute, and the husband's dower interest is of the same quality. 12 Sec. 454. Inchoate dower. The right of the husband or the wife in the real estate of the other before the death of either, is called an inchoate right of dower. It is sometimes designated a contingent right of dower. The various courts of the State have not been in accord in giving names to designate just what kind of property or estate the inchoate right of dower is. It has been said of it that dower inchoate is not an estate ; that it is a right of interest each may have in the land of the other, created by law for the benefit of the other, and that it is contingent upon the one surviving the other. 13 Another court designates this inchoate right of dower as a vested interest transferable in equity to others before it has been assigned and set off by metes and bounds, as a vested interest, a right or interest in land, a substantial right, possessing in contemplation of law the attributes of property, and to be estimated and valued as such, as a thing- or chose in action, as a right paramount to all subsequent titles derived through the husband or wife, and as a right which is as plain and obvious as the right of an heir, as a legal estate and not a secret equity, and, until assigned and set off, a recognized encumbrance upon land of the deceased husband. 14 ioOen'1 Code, §8616 (R. S. 12 McLaren v. Stone, 18 C. C. 854. §4194-2). is Dukes v. Dukes. 3 C. C. 510. 11 fien'l Code §8614 (R. S. « Stoltz v. Boltz, 5 W. L. B. 410; §4194-1). McArthur v. Franklin, 16 O. S. §454 MERWINE ON REAL ACTIONS. 568 It is "a severe dormant encumbrance upon the use and cir- culation of real estate" which is in practice "almost univer- sally extinguished by an act of the wife in concurrence with the husband, upon sales and mortgages of real estate." This inchoate right of dower, which the husband or wife has by virtue of their marriage and seizin, is a valuable right and neither can be deprived of it for the benefit of the other's creditors except by his or her voluntary act. 16 Our courts finally took a practical view of this question, holding, as a majority of our business men do, that the con- tingent right of the wife, during the husband's life, to dower in his real estate has a positive and substantial value. And. as one court has said, no acuteness of artificial reasoning, 193; Unger v. Leiter, 32 0. S. 210; see also 27 la. 148; 12 Ind. 37; 4 Paige, 448; 1 Smedes & M. ch. 490; Weyer v. Sager, 21 C. C. 711, hold- ing that dower before assignment is a chose in action. Arnold v. Don- aldson, 46 0. S. 78; Mayee v. Young, 40 Miss. 164. "In Ohio, inchoate dower is held to be a present valu- able interest in the estate, some- thing more than a naked possibilit ; it is a present vested right of value, -u-ceptible of being estimated con- tingent on survivorship." Brown v. Kern, 6 N. P. 68. 15 4 Kent, 36. The estate is an estate for life. It commences with the death of the husband, it ceases with the death of the wife. It is not in the power of the widow to transfer any interest in it until it lias been actually assigned. When it is assigned — when it is aparted and set off to her by metes and bounds. the*n she may sell and con- vey — not before. The right, the chose in action, if I may so speak, is not assignable. It may be relin- quished to him who has the next estate in inheritance in the land out of which it is to be carved, but can not be transferred to a third person. Hitchcock, J., in Miller v. Wood- son, 14 O. 518. See also Douglass v. McCoy, 5 0. 527: Weaver v. Gregg, 6* 0. S. 547. "We are well aware that the right of dower of the wife in the lands of the husband has been held by our Supreme Court to be property. It is property, how- ever, of a peculiar kind, of which there is no present enjoyment. It is both inchoate and contingent. This right can be released by the wife upon any good and valuable consideration moving to the hus- band : and if the husband, for a good and valuable consideration, pledges the property in which the wife has a contingent right of dower, for the payment of his debts, the wife joining in the conveyance, releasing her right of dower, we hold that she is bound by such re- lease." Mussey v. Budd,' 11 C. C. 553. "The contingent right of a wife during her husband's life, to be en- dowed of his real estate at his death, is property having a substantial value that may be ascertained with reasonable certainty from estab- lished tables on mortality, aided by evidence respecting the state of health and constitutional vigor of the husband and wife respectively." Mandel v. McClave, 46 0. S. 407. "The inchoate dower of the wife is not a lien upon the land of the hus- band, but is an interest in it." Jew- ett v. Feldheiser, 68 0. S. 523. is Black v. Kuhlman, 30 0. S. 199. 569 LAW AND PROCEDURE WHERE DOWER ASSIGNED. §455 founded on technical rules of law, can persuade a prospective purchaser to the contrary. 17 Sec. 455. When inchoate right of dower not assignable. This inchoate right of dower, like choses in action, was not assignable, but when the right became consummate by death, the surviving wife, or husband, then could sell and convey his or her dower right, though not yet assigned and set off. 18 Sec. 456. Consummate dower unassigned can not be reached by creditors but by an action in equity. Vested dower rights or an estate in dower not yet as- signed can not be reached by levy and execution on behalf of a creditor. The only way in which a vested, unassigned dower estate may be reached by a creditor, is by a proceeding in equity for that purpose. In such action the court will, by a proper decree, order that the person entitled to such unas- signed dower interest convey the same to a receiver; that on failure to so convey to such receiver, the decree operate as i"Mandel v. McClave, 46 0. S. 411: Ketchem v. Shaw, 28 0. S. 503; Black v. Kuhlman, 30 0. S. 196; Unger v. Leiter, 32 0. S. 210; Kling v. Ballentine, 40 0. S. 391. i*Woyer v. Sager, 21 C. C. 715. "The law to-day is not dominated by a fear of maintenance and cham- perty as it was when Lord Coke wrote, and when 'dower, unassigned. can not be conveyed to a stranger' passed into a proverb. The reason lias ceased, the law has changed, and, like any other right in re dower, consummate may now be aliened. If, as suggested, the stat- ute makes no provision for the as- signment rf dower at the suit of the widow's vendee, it will be remem- bered that equity has concurrent jurisdiction Vith the law in actions for dower, and has always enter- tained jurisdiction when for any reason the remedy at law is inade- quate." Ibid, citing Tiedeman's Eq., § 522. See Finch v. Finch. 10 0. S. 501; Rosenthal v. Mayhugh, 33 0. S. 155; Mandel v. McClave, 46 O. S. 407; Boltz v. Stoltz. 41 O. S. 540; Grant v. Ludlow. 8 0. S. 1. But see 14 0. S. 518; Todd v. Beatty, W. 460; Fletcher v. Hunt- ington, 8 N. P. 333. Set also Doug- lass v. McCoy, 5 0. 527; Avery v. Durfrees, 9 0. 147; McMahon v. Gray, 5 L. R. A. 748: Strong v. Clem, 12 Ind. 37; Mitchell v. Win- slow, 2 Story, 630; Xieholl v. Rail- road, 12 X." Y. 121 ; Stoughton v. Forest, 4 Blackf. 379; 4 Kent's Com. 269; Moon v. Lancaster, W. 35; Ford v. Lanman. W. 437; Weekly v. Hall. 13 0. 167; Pom- eroy's 'Equity. Vol. 1, § 137: McMa- hon v. Gray. 150 Mass. 289: Payne v. Becker. 87 X. Y. 153: Pope v. Meade. 99 X. Y. 201. But in Ro- senthal v. Mayhugh. 33 0. S. 167, we find: "A widow, before dower is assigned, having only a vested right to be endowed, can not, at laic, convey such right; she can only re- lease it." §457 MERWINE ON REAL ACTIONS. 570 such conveyance, and that the receiver proceed by action to have dower assigned. 19 Sec. 457. Inchoate right of dower released by order of court —When. The right of a mortgagor, lienholder, or other person hold- ing an incumbrance on real estate, to have it sold by a court in a proper action, free of the inchoate dower interest of the husband or wife who had not released their dower right in such real estate, is now fully established by the courts. In such action the holder of the lien, or incumbrance, should make the husband or wife who claims the inchoate right of dower, a party to the action. The court will then order the real estate sold free of dower and will further order that there be paid to the holder of such inchoate dower interest, the dower thereof, to be determined by reference to dower tables of recognized authority on that subject, in connection with the state of health and constitutional vigor of the wife or husband. 20 But if in such action to foreclose a mortgage on real estate or enforce a lien or other encumbrance thereon, in which the inchoate right of dower to the husband or wife has not been released, and such husband or wife has not been made a party to the action, the order of the court, selling such real estate, will not operate to cut out such dower interest. The husband or wife, when the dower estate has become consummate, may maintain an action for the assignment of dower in such real estate. The decree and sale under the order of the court will not, in any manner, affect their dower in such real estate. 21 isBoltz v. Stoltz, 41 0. S. 540: Tompkins v. Fonda, 4 Paige, 448; Davis v. Whittlesy, 1 McArthur, 163; Payne v. Becker, 87 N. Y. 153; Aduit v. Moore, 7 N. P. 320, affirmed in 13 0. C. T). 11; McLar- ren v. Stone, 18 C. C. 854. 20TJnger v. Leiter. 32 0. S. 210. "In a proceeding at the suit of sun- dry mortgagees to foreclose their respective mortgages, it appeared that the wife of the mortgagor bad united with her hushand in the exe- cution of only one of the mortgage-, in which iIk- had released her con- tingent right of dower. At the in- stance of the mortgagee holding such release, the wife was made a party and the premises were sold, pursuant to an order, froe from her contingent claim to dower. Held: that the mortgagee holding such release, is entitled, on distribution, to receive the proportionate value of such inchoate right of dower, though the net proceeds % of the sale are insufficient to satisfy the prior mortgages." Black v. Kuhlman, 30 O. S. 100. See also Gillette v. Mil- ler, 12 C. C. 210. -i Dingman v. Dingman, 39 0. S. 172. "Where the wife has joined in 571 LAW AND PROCEDURE WHERE DOWER ASSIGNED. §458 A sale of land at a suit of a judgment creditor of the hus- band, brought to marshal liens, does not have the effect to bar or foreclose the inchoate dower of the wife; and the rule is not different, although the wife is made a party to the creditor's suit and is in default of answer, when the judgment ordering a sale is entered and a sale is made, and although a mortgagee in whose mortgage the wife has joined releasing dower, is also made a defendant but is in default at the time judgment is rendered and the sale is made.- 2 Sec. 458. Dower subject to every infirmity the law attaches to the seizin. It must be kept in mind, however, that while the right of dower attaches to the real estate the instant the seizin of the husband or wife attaches to it, yet it is subject to every in- firmity to which the law attaches to the seizin. 23 The right of dower in the wife subsists in virtue of the seizin of the husband ; and this right is always subject to any incumbrance, infirmity or incident which the law attaches to that seizin, either at the time of the mortgage or at the time the husband became seized. x\ liability to be divested by a sale in partition is an incident which the law affixes to the seizure of all joint estates; and where the law steps in and divests the husband of his seizin and turns the realty into personalty, she is, by the act and policy of the law, remitted, a mortgage foreclosure of the hus- band, she not being made a party, after his death she has the right to redeem the mortgage and then have her dower out of the property. Dower inchoate is not an estate, but it is nevertheless a right or interest in land, of which a wife may not be deprived except by pro- ceedings to which she has been made a party." Ketcham v. Shaw, 28 0. S. 506. "A widow who, in the life- time of her husband, united with him in a mortgage of lands, of which he was seized in fee. has, in equity, after his death, a right to redeem; and a foreclosure, during the life of the husband, by suit in chancery, to which the wife is not a party, does not bar her equity of redemp- tion." McArthur v. Franklin, 15 0. S. 485 3 citing Denton v. Nanny, 8 Barb. S. C. R. 624; Mills v. Van Vorhees, 20 N. Y. Rep. 415. "A widow who, in the lifetime of her husband, united with him in a mort- gage upon lands of which he was seized in fee during coverture, has, in equity, a right to redeem; and a foreclosure in the lifetime of her busband, to which she was not a party, does not divest her of such right." McArthur v. Franklin, 16 0. S. 193; Parmeter v. Burkley, 28 0. S. 32: Carter v. Goodin, 3 0. S. 76; Kitzmiller v. Vanrensellaer, 10 0. S. 63. 22 .Tewett v. Fieldheiser, 68 O. S. 523. ssGillett v. Miller, 12 C. C. 212; Firestone v. Firestone, 2 0. S. 415; Derush v. Brown, 8 O. 415. §§459,460 MERWINE ON REAL ACTIONS. 572 in lieu of her inchoate right of dower in the realty, to her inchoate right to the distributive share of the personalty into which it has been transmitted. 24 Sec. 459. Marriage necessary to create dower. One of the essentials to create the right of dower is marriage; 23 and clower will only be allowed to the widow who was the wife at the time of the husband's death. 20 It is not absolutely essential in this State that the pan-lies • desiring to marry secure a license or have a publication of bans, and be married by a minister, priest or other person authorized to solemnize marriages, in order to entitle the hus- band or wife to the right of dower. While this is the manner in which all persons should enter into the marriage state, still the law recognizes another way by which the rights, duties and legal liabilities incident to the marriage relation may be created. An agreement between a man and woman, believ- ing that they are marriagable by law, to become husband and wife, entered into in good faith, with continued cohabitation in that relation and the treatment of each other, not only be- tween themselves but in the community, as husband and wife, establishes that relationship, and they are as legally married as though they had been married by official ceremony or the publication of bans. 27 Sec. 460. The seizin necessary to create dower. The dower statute provides that a widow or widower is endowed of an estate for life in one-third of all the real estate of which the deceased consort was seized as an estate of in- heritance at any time during marriage, and one-third of all the real property of which the deceased consort, at decease, 2* Gregg v. Weaver, 6 0. S. 547; quoted with approval in Gillett v. Miller, 12 C. C. 212. -••Gen'l Code, §8600 (R. S. §4188). 26 Rice v. Lumly, 10 O. S. 507; Scribner on Dower, 510. zTSwartz v. State, 13 C. C. 62; DeFrance v. -Inlmson, 26 Fed. Rep. sol: Kemelly v. (Wee, 4 N. P. 105; Holtz v. Dick, 42 O. S. 23; Carmichael v. State, 12 O. S. 553; Meeritz v. Insurance, 8 X. P. 422; Estate of Barrett, 40 W. L. B. 222 ; Fergus v. Nash, 48 W. L. P.. 442 ; 2 Kent's Com. 86; Shelford on Mar- riage and Divorce, 080; Yates v. Houston, 3 Tex. 433: Hines v. McDermitt, 01 X. Y. 451: Slate v. Worthington, 23 Minn. 528; 14 Am. & Eng. Ency. of Law, 527. But see Duncan v. Duncan, 10 O. S. 181. 573 LAW AND PROCEDURE WHERE DOWER ASSIGNED. $•±60 held the fee simple in reversion or remainder, and also in any real property held by article, bond or other evidence of claim, but dower will not be assigned to any widow or widower in any real property of which the deceased consort at decease held the fee simple in reversion or remainder, until the termi- nation of the prior estate. 28 The statute makes three things necessary for the inchoate right of dower to ripen into dower consummate : marriage, death and seizin. 29 We have already seen what conditions of fact are necessary to constitute a valid marriage in this State, and that a wife may have her inchoate, or contingent dower, paid her out of the proceeds of a sale of the husband's real estate made by order of the court during his lifetime. There may be cases in which the law will presume the death of the husband or wife, and permit the survivor to have dower in the lands of the consort presumed to be dead, as, for instance, when a man leaves his home or his usual place of residence and goes to parts unknown, and is not heard of or known to be living for a period of seven years, the legal presumption arises that he is dead. 30 Seizin in law, as well as in fact, of lands owned in fee by the husband during coverture, is sufficient to endow his widow, not otherwise barred; for seizin in law there must be a right of immediate possession ; and where the husband is vested in the remainder estate subject to a life estate in another in being, during his coverture, he has no right of immediate pos- ssGen'l Code, §8600 (R. S. §4188). In Wood v. Phillips, 2 C. C. 138, when the statute did not provide for dower in reversion or remainder estates as at present, it was held that, "At common law it is an essential requisite, in order that the widow be endowed, that the estate of the husband must con- fer a right to the immediate free- hold. Dower is not allowed in es- tates in remainder expectant upon an estate of freehold, and hence if the estate of the husband be sub- ject to an outstanding freehold es- tate, which remains undetermined during tlie coverture, no riffht of dower attaches." Pcribner on Dower. 217. To the same import is Tyler on Cov. 397; 1 Washburn Real Prop. 154; 4 Kent's Com. 39. When the husband, previous to his death, had only a reversion in fee, or a vested remainder expectant upon an estate for life, his widow can not be endowed; as in such case he has never had either possession or any right of possession, he can not be said to have had a seizin of any sort, either actual or legal. Du- ra ngo v. Durango, 23 N. Y. 331; Eldridge et ah v. Forester and Wife, 7 Mass. 352." 29 Black v. Knhlman. 30 0. S. 204; Conger v. Black, 11 O. S. 10. so Rice v. Lumley, 10 O. S. 596. §461 MERWLNE ON REAL ACTIONS. 57^: session, is not seized thereof, and if he conveys the same by his sole deed during coverture, his widow will not be entitled to dower therein. :u To constitute seizin in fact, there must be an actual posses- sion of land, and for a seizin in law, there must be a right of immediate possession. 32 Seizin in fact is the possession with intent on the part of him who holds it to claim a freehold interest, Seizin in law is a right of immediate possession according to the nature of the estate. 33 It has long been a rule of law that possession, or quasi possession is prima facie evidence of property, and the pos- session of real estate, or the reception of the rents and profits from the person in possession, is prima facie evidence of the highest estate in that property, viz. : a seizin in fee. The same evidence of seizin should entitle a woman to recover her dower, as would be sufficient to authorize a recovery by an heir. In such case the seizin of the deceased is proved by showing his actual possession of the premises, or by proving his receipts for rent from the person in possession/' 34 Sec. 461. To what property dower will attach. Dower is not divested in real estate conveyed by husband to defraud his creditors, even though the wife joins in the deed, 86 nor is the wife denied her right of dower in the real • state of her husband conveyed by him in fraud of her rights before inarriage, but after he has entered into a contract to marry, 38 nor by proceedings to sell her husband's land to enforce ii judgment lien to which she is not a party, 37 nor by taking a distributive share of decedent's personalty, 38 nor si Oliver v. Jones, 3 X. P. 120. Oliver v. Jones, :? N. P. V.W-. 1 Washburn Real Estate, p. 62. \\ 1 v. Phillips, 2 C. C. 136; Bouvier'a Law Die; Grogan v. Gar- rison, 27 0. s. 52. "Under our de- ns, it is held that the seizin of one who mal es a purchase money mortgage is technical and is not an PState t > which dower attaches." Culver v. Harper, '-'7 0. S. 67; Welch v. Buckins, 0. S. 331. iWard \. Mcintosh, 12 O. S. Jackson v. Waltenneir, 5 Cow. 301; Bancroft v. White, 1 Caines, 190; Sparrow v. Kinsman, 1 Const. 245. 86 Woodworth v. Paige, 5 O. S. 71; Ridgeway v. Mosting, 23 O. S. 294; Ennis v. Ennis, Dayton, 117. so Ward v. Ward. 63 0. S. 125; Westerman v. Westerman, 25 O. S. 500; Miller v. Wilson. 15 0. 108. 37 Dingman v. Dingman, .'50 0. S. 172. ssHutehins v. Davis. 68 O. S. 168; Barber v. Hite, 39 O. S. 185. 575 LAW AND PROCEDURE WHERE DOWER ASSIGNED. $462 in the proceeds realized from a lire insurance policy on her husband's real property, 20 nor by proceeding in partition, her husband being one of the parceners and living at the time partition is sought,* nor from the surplus arising from the sale of real estate under a purchase money mortgage, 41 nor a sale of the husband's lands by a judgment creditor, the wife not being a party to the judgment, 4 - nor where the wile was induced by the husband's fraudulent representations to sign a mortgage on all of his real estate for a large loan, under his representations that it was only a deed for a very small portion of his real estate, 4:! nor where an assignee sells lands of an assignor for the benefit of creditors, without any pro- ceeding in the probate court. 44 Dower will attach to all of the equitable estate in lands held by the deceased consort at the time of death, 4S and in mines and quarries opened by the husband in his lifetime. 46 Sec. 462. Lands in which dower will not attach. Dower will not be allowed in permanent leasehold estates, 47 nor in real estate conveyed by delivery of deed to the officer taking the acknowledgment, and its acceptance by the grantee, but before he takes actual possession of the deed, the grantor marries. 48 nor in the real estate conveyed by the wife and her husband, which is supported by a consideration, 40 nor where she accepts property from her husband in lieu of dower under the statute, or by jointure or post or ante nuptial contract.'" nor in real estate in which she by her conduct is estopped from asserting her dower therein. 51 nor in the lands of a ss Fleming v. Jordan, 28 W. L. B. 332. '• Rockel's Complete Ohio Probate Practice, § 949. citing Woerner on Adm'r.. 229. 47 Oliver v. Jones, 3 X. P. 129. 48 Black v. Hoyt. 33 0. S. 203. *? Smith v. Handy. 16 0. 192; Mussy v. Budd, II C. C. 552: Sytnmes v. White. 4 VV. L. J. 52S. aoGen'l Code, Sec 8608 ( R. S. § 4 1S9 i. See also Grogan v. Gar- rison. l'i 0. S. 59; Murphy v. Mur- phy. 12 0. S. 407: Smith v Smith, 57 0. S. 27; Duttenhofer v. Dntten- hofer, 12 O. D. X. P. 736. si Rosenthal v. Mayhugh, 33 0. S. 166; Brown v. Kerns. X. P. 68; §462 MERWINE ON REAL ACTIONS. 576 divorced husband, when the divorce is granted for her ag- gression," nor in the lands of a divorced wife, when the divorce is granted for the husband's aggression, 53 nor where the wife has elected to take under the provisions of her hus- band "s will in lieu of dower, 54 nor in the lands of the husband sold for taxes, and this is true whether the dower be inchoate or vested, 53 nor in the lands of her husband, where the right has become consummate, but not asserted for 21 years there- alter, 5 " nor in real estate mortgaged, the wife joining the husband in the execution of the mortgage, 57 nor in the lands of the husband sold before his marriage, but not actually conveyed until after marriage, 58 nor in lands committed to public uses, 50 nor in burial grounds, 00 nor in the land of hus- band sold to satisfy a purchase money mortgage in which she 'lid not join, 01 nor in growing crops, 62 nor in the lands of her husband as against a lien of a mortgage executed prior to marriage, 63 nor in the realty of a railroad company in which her husband held stock, 64 nor in an equity of redemp- tion after condition broken at time of marriage, 65 nor in the land of her husband as against a judgment recovered againsl him prior to the marriage, 66 but where the husband Murphy v. Murphy, 12 0. S. 407; Smiley v. Wright 2 0. 506; Thomp- son v. Hoop, 6 0. S. 481; Sweeney v. Shade, 22 0. S. 333. 52 Gen'l Code, § 11093 (R. S. §5700). Gen'l Code, §11990 (R. S. § 5699). 54 Gen'l Code, §10566 (R. S. 5963). Sec Kinkead's Probate Law and Practice for discussion of wli;it constitutes an election, §222, et seq.; also R^ockel's Probate Law and Practice, Vol. 2. § 1224. n seq. ■■••.luii.- v. Jones, 8 <>. S. 430; Gen'l Code, § 5688 (P. S. §2852). BBTuttle v. Wilson. 10 0. 24; Ab- bott v. Bostworth, 2 W. L. B. 92. affirmed in 36 0. S. 605. r»7 Duval v. Feiviger, 1 C. S. 0. P. Chapman v. Chapman, 53 Am. St. 823; Gwyne v. Cincinnati, 3 O. 24; Ste f 4i' v. Board of Education, 31 W. L. P B4 go Gen'l Code, §10105 (R. S. §3578). ci Folsom v. Rhodes, 22 O. S. 435. "The widow of a purchase-money mortgagor, mortgage given before marriage, and property sold by ex- ecutors to pay the mortgage debt, is not dowable of the whole proceeds, but only of the surplus remaining after satisfying the mortgage." Culver v. Harper, 27 0. S. 4(54: Fox v. Pratt, 27 0. S. 515; Runner v. Evans. 2 C. C. 435; Elliot v. Platter, 43 0. S. 108; Unger v. Leiter, 32 O. S. 210; Bank v. Hin- ton, 21 0. S. 509; Welch v. Buck- ins, 9 0. S. 331; 82 l) ;l \is v. Brown, 4 W. L. M. 272. «3 Phillips v. Keels, 4 C. C. R. 316; Sprague v. Law, 17 C. C. 735. 64 Johns v. Johns, 1 C. S. 350. 65 Jacques v. Commissioners, 2 Disn. 121. co Phillipa v. Keels, 4 C. C. R. 31f>. 577 LAW AND PROCEDURE WHERE DOWER ASSIGNED. § 463 mortgages his real estate and marries, and then there is a judgment lien taken against the real estate, after .his death, on distribution of a f'ind arising from a sale of his real estate, the wife's dower is superior to the judgment creditor's Lien. 07 A widow electing to take the provisions made for her in the will of her husband, will be barred of dower in the land of which he was seized as an estate of inheritance during coverture, and which was sold and conveyed upon foreclosure of a mortgage executed by him in which she did not join, unless it plainly appears by the will that she should have such provision in addition to her dower, 68 and a doweress has the same rights in oil wells sunk upon the lands of her husband after his death that she has in wells sunk before his death; and where the rents and profits of a tract of land are assign d to her. the oil productions in that land are clearly her.j.' J She will not be entitled to dower in real estate conveyed to her by jointure or given to her by her husband by postnuptial or antenuptial contract. Sec. 463. Jointure — Its character and essential elements — Postnuptial and antenuptial contracts. The conveyance of an estate or interest in real properly to a person in lieu of dower to take effect on the death of the grantor, will, if accepted by the grantee, bar the grantee's right of dower in the real estate of the grantor; but if the conveyance was made when the grantee was in infancy, or after marriage, the grantee may waive title to such property and demand dower. 70 As our Supreme Court has discussed the subject of jointure in a manner that can not be improved, we here quote from its language on this subject : '"What, then, is a jointure, under this statute? It is a word having a fixed legal signification, long prior to the enactment of our dower act. "The section quoted is, in fact, but the adoption of a similar provision found in Stat. 27, Henry VIII, c. 1056, which en- acted that where lands are settled to the use of the wife, 07 Winkler v. Winkler, 1 Iddings 69 Wilford v. Heimhoffer. 2 C. 0. T. R. D. 124. N. S. 369. 68 Corry v. Lamb, 45 0. S. 203. to Qen'l Code. § 8608 ( R. S. §4189). £ 463 MERWINE ON REAL. AtrrtONS, 578 'that then, in every such case, every woman having such jointure * * * shall not have title to any dower in the residue.' "This act of parliament was enacted to prevent a woman from having both jointure and dower. Before its passage, accepting a jointure was not a bar to her action for dower. "Under this statute, the word jointure had as definite and well defined legal meaning as any other legal term. "It was an estate made to the wife in satisfaction of dower. Sir Edward Coke says 'That to the making of a perfect jointure, within that statute, six things are to be observed: (a) It is to take effect for her life, in possession or profit, presently after the death of the husband, (b) It must be for her own life, or for a greater estate, (c) It must be made to herself, and to no other for her. (d) It must be made in satisfaction of her whole dower, and not of part of her dower, (e) It must be expressed or averred to be in satisfaction of her dower, (f) It may be made either before or after marriage.' "He adds: 'So as to comprehend all in a few words: A jointure * * * is a competent livelihood of freehold for the wife, of lands or tenements, to take effect presently in possession or profit after decease of the husband; now, as dower ad ostium ecclesiae, or ex assensu patris, is better for the wife, because, in respect to certainty, she may enter, than dower at common law where she is driven to her action, and therefore Britton ealleth dower ad ostium ecclesiae and ex assensu patris, establishment of dower by the husband, and assignment of dower after his decease (for nothing that is uncer- tain is established) ; so jointure (that hath the force of a bar of dower by said act of 27 Henry VIII). is, as hath been siiid, more secure and safe for the wife than dower ad ostium ecclesiae or ex assensu patris, for besides it is as certain as these nt hers, and she may enter into it, after the death of her husband, and no1 be driven to her action.' (Coke on Lit., §41. note 8.) "A jointure with all these qualities is binding on the widow, and a complete bar to her claim. (1 Cruise Digest, title 7, chap. 1. § 1!i "I'. nt it had to be as certain as dower ad ostium ecclesiae or ex assensu patris. and to be better than these; and, as Coke 579 LAW AND PROCEDURE WHERE DOWER ASSIGNED. § 463 says, more secure and safe for the wife than cither of these, or than dower at common law. It had to be established, so the wife could enter, after the death of her husband, and not be driven to her action. "It is said jointure is to be as certain as dower ad ostium ecclesiae or ex assensu patris. How certain were they? "Coke says: 'Dowment ad ostium eccledae is where a man of full age, seized in fee simple, who shall be married to a woman, and when he cometh to the church-door to be married, then after affiance and troth plighted between them, he en- doweth the woman of his whole land or the half or other lesser part thereof, and then openly doth declare the quantity and the certainty of the land which she shall have for her dower. Here be two things that the law doth delight in. viz. : To have this and the like openly done; second, to have cer- tainty, which is the mother of quiet and repose, and this word (moiety), above said to be intended of the half in certainty, and not of the moiety in common, which clearly appeareth in that here Littleton saith the quantity and certainty of the land.' 71 "So dower ex assensu patris must have the same quality of certainty. It must be 'of parcels of his father's lands or tene- ments with the assent of his father, who after assigns the quantity and parcels. In this case, after death of the son, the wife shall enter into the same parcel, without the assign- ment of any. ' 72 "Jointure was as certain as dower ad ostium ecclesiae or ex assensu patris. It was more secure and safe than either of these. It was, like them, an establishment of dower by the husband, and better than either of these, she might enter into it, after the death of her husband, and not be driven to her action. This was doubtless for the reason that it was evidenced by a conveyance in writing. "In Vernon's ease, 4 Coke. 1. the leading one on the subject, it is said, 'that dower ad ostium ecclesiae and ex assensu patris concluded the wife of her dower, if she entered into the land so assigned to her, after the death of her husband, for these being in such form as the law requires to be dowers in law. an assignment of dower, when the husband was sole seized, 7i Coke on Lit., title Dower, §39. 72 Coke Lit., title Dower, §40. §463 MERWINE ON REAL ACTIONS. 580 can not be made of the third or fourth part in common, but ought to be in severalty.' 73 •At common law it was imperative as a requisite of dower that the husband should be sole seized. "Upon estates held in joint tenancy no dower would attach. 74 "So stringent was this rule, that where one joint tenant aliened his share, destroying the possibility of survivorship and severing the tenancy, the widow of the alienor could not claim dower. 75 "The reason for this rule is obvious, and applies with equal force to a jointure. "The sole seizin of the husband was indispensable, because only in such case could dower be assigned by metes and bounds, and as jointure was in lieu of dower, the same quali- ties as to the estate granted necessarily existed. "It must be so assigned as to be held in severalty without an action at law. "By the terms of our statute jointure must be an estate, •onveyed as jointure. "If from any defect it fail to be a legal Mr to dower, and the widow elects to take advantage of this defect, and de- mands her dower, the estate conveyed as jointure shall cease and determine. "In what sense, then, is this word jointure used? It was a term which, for more than two hundred years, had had a fixed legal signification. Long prior to the adoption 01 the act of 27 Henry VIII, jointures were in common use, and their meaning well understood. "That statute, from which ours is almost literally borrowed, has been carefully considered in many reported cases by the most profound jurists of England. The repeated discussions, and the long line of decisions, growing out of this act and similar ones in most of the States of the Union, were doubt- Less familiar to our ancestors, who incorporated a like pro- vision in the statutes of Ohio. They were men well versed in the common law, and especially that part relating to real estate. "It is wrll established as a rule of interpretation, that r« i Thomas' Coke, 597. "4 Kent, 37; Coke Lit., § 31b. u Lit.. I 15; 1 Scribner on Dower, 237. 581 LAW AND PROCEDURE WHERE DOWER ASSIGNED. § 463 where particular words or phrases have in law an acquired, fixed legal signification, and are thus incorporated into a statute, the legal presumption is that the Legislature meant to use them in this legal sense. 70 "Where a statute speaks of a deed, it must be taken in its technical sense, as understood at common law— that is, a writing sealed and delivered by the parties. 77 "So, also, where the word mortgage is used, it will be as- sumed that it is used in its ordinary legal signification, as well understood at common law, and that the legal liabilities incident to it were understood to follow. 78 "Guided by this rule of interpretation, and by the light of the authorities and decisions referred to, we are led to con- clude that the estate to be conveyed as jointure must possess those prime requisites enumerated by Littleton and Coke, which we have quoted— that there must be such an estate as the widow can enjoy in severalty. It must declare the 'quantity and certainty' of the lands she shall have — the 'two things that the law doth delight in'— first, to have it done under our statute, by a solemn deed of conveyance ; and, second, to have 'in certainty, which is the mother of quiet and repose.' And Lord Coke adds, speaking of certainty in dower at the church-door, and commenting on Littleton's text: 'This word moiety means a half in certainty, not of moiety in common.' "In Winch's Cases, p. 33 (London, 1657), it is said, to be a good jointure, a wife must have a sole estate, after the death of her husband. "In the case at bar, the conveyance is fatally defective in this prime quality of certainty. "It conveys an undivided one-third for life. The widow can not enter and enjoy in severalty; she would be driven to her action at law to have it assigned and set apart to her. "One of the prime reasons for making a jointure was to give the wife the right, without her action to enter and be sole ' ' 7!) possessor. In another case, the agreement in controversy was that the property both real and personal of each, being about equal in TcTurney v. Yeoman, 14 Ohio, "Per Scott, J., Medical College 207. v. Ziegler, 17 Ohio St. 521. 77 Moore's Lessee v. Vance, 1 79 Grogan v. Ciarrison, 27 0. S. Ohio, nt. 5fl. § 463 MERWINM ON REAL, ACTIONS. 582 value, should be brought together, and enjoyed during cover- ture, and at the termination thereof, the personal property should be separated and divided between the survivor and the representatives of the intestate, and the survivor should hold his or her said property, real or personal, and should there- after have no right or interest in the property of the intestate, by reason of said coverture. This contract had been per- formed by the parties during coverture, and after the decease of the husband, the wife claimed and received from the per- sonal representatives of her husband's estate her share of the property and the benefit of all of the provisions of the contract in her favor. It was decided that this contract did not, of itself, preclude the wife from dower as provided in the jointure statute above, but the court held that an ante- nuptial agreement, not within the statute, can not, in this State, constitute a bar in a proceeding at law by writ of dower. It is obvious that, in equity, the petition can only be allowed upon the law and equity of the case being made to appear in favor of the petitioner, and that a defense which successfully denies and disproves all equity in favor of a petitioner for dower, necessarily constitutes a good defense, when the proceeding is in a court of equity. 80 It was said by Sutliff, J. : "Dower is said to be one of the three things favored in law. and it is certain that at common law the widow could not he barred of her dower by an assignment or assurances to her of other lands or rents issuing out of other lands than those of which she was dowahle (except in the case of dower ml ostium ecclesaie, or ex assensu patris), whether the assign- ment or assurance was made by the husband before or after tlie marriage. This arose probably from the consideration that, lommoD law. no righl can be barred until it accrues, and that a righl or title to an estate of freehold cannot, at common law. be barred by a collateral satisfaction. "By the common law. in England, the wife was only en- dowed of tlie third part of such lands and tenements as the husband was seized of. at the time of marriage, unless at the time of the marriage he especially promised, before the priest, to endow her of his future acquisitions. But if the <"> Murphy V. Murphy. 12 O. S. 407. 5rfo LAW AMI PROCEDURE WHERE DOWER ASSIGNED. § iG'-i husband, at the time of .the marriage, had no lands, an en- dowment at the time of the espousal, in goods, chattels or money, by him was a bar to any claim of dower on her part to lands which he might afterward acquire. The endowment so made by the husband, in goods, chattels or money, seems to have been regarded, in the absence of lands on his part, as accepted by her in stead of her dos rationabilis, or a third part of lands by him at the time held. Therefore the common law rule applied, the same as if she had been actually endowed of lands, at the time of the marriage; and she could not in the absence of a special engagement so made by the husband to endow her of his after acquired lands, claim dower therein. And although Glanville, and other old writers, speak of such an endowment in goods, chattels or money, before or at the time of marriage, as being a bar of any dower in after acquired hinds, it would be certainly more correct to say. no right of dower in the after acquired lands, in such a case ever existed at common law. Indeed, to allow such an endowment in goods or money to be pleaded in bar of a common law right of dower after accruing to the woman, when claimed by her, would certainly be in contravention of the common law maxims mentioned. For if the right to be endowed of future acquired lands could arise at common law, such right did not exist at the time of so being endowed of personal property; and such endowment of goods, etc., if pleaded as satisfaction of such after accruing dower estate in the lands would be only a collateral satisfaction. And hence, while dower was only claimed and assigned at law under writs of dower in England, the widow could only be barred of her right of dower by elope- ment, divorce, treason of the husband, and, perhaps, by hus- band and wife levying a fine, or suffering a common recovery; or, by detaining the title deeds or evidence of the estate from the heir, until she restore them. "A jointure, which is defined by Sir Edward Coke to be 'a competent livelihood of freehold for the wife, of lands and tenements, to take effect, in profit or possession, presently after the death of the husband, for the life of the wife at least,' was not at common law a legal bar to the widow's claim of dower; but only became a bar by force of the statute of uses (27 Hen. YITT, eh. 10, §6), providing, anions n'-hev things, that where lands had been settled to the use of the wife, etc., §463 MERWINE ON REAL ACTIONS. 584 for her .jointure 'that then, in every such case, every woman married having such jointure made or hereafter to be made, shall not claim nor have title to have any dower of the residue of the Lands, tenements or hereditaments, that at any time were her said husband's, by whom she hath any such jointure; nor shall demand nor claim her dower of and against them that have the lands and inheritances of her said husband; bul if she have no such jointure, then she shall be admitted and enabled to pursue, have and demand her dower by writ of dower after the due course and order of the common law of this realm; this act Of any law or provision made to the contrary thereof notwithstanding.' This statute, being in dero- gation of the common law. had to be strictly construed; and dialer it no plea in bar was admitted not allowable at common .aw. which did not fall clearly within the statute. "No antenuptial agreement, then, not falling within the statute, however beneficial and valuable to the wife, could, by force of tins statute, in England, constitute a bar to the widow's demand of dower at law by writ of dower. It was only at a much later date than this statute (27 Hen. VIII, ch. 10), that courts of equity, in analogy, as is said, to this Btatutory defense at law, allowed equitable jointures, and beneficial antenuptial contracts to be set up as a defense to proceedings by petition in chancery, by the widow, for her dower. Hut the earliest reports o\' cases adjudged in the court (>\' chancery are in the reign of Charles the First; being after the enacting o\' this statute. And it is not probable that pro- ceedings were entertained for dower, in that court, until a somewhal later date. 'In the case o\' Daniler v. Daniler, a proceeding in chancery on petition for dower in lTlti, the lord chancellor allowed an antenuptial agreement ai.d an equitable jointure to be shown i by the heir, the defendant, as a defense to the claim set forth in the petition. 1 Vern. 7'24A "And .'is late as in the ease of Mundy v. Mundy l in lIT'.^I 2 Ves., § 122), i he lord chancellor, in overruling a demurrer for that the proceeding for dower was in equity instead of at law. said, 'if a Legal title such as dower is controverted, it must be made out at law. but this court will act in aid of the title.' etc. And the court remarked that the proceeding was s,» general in equity as to almost put an end to writs '^:> LAW AND PROCEDURE WHERE DOWER ASSIGNED § 463 of dower. And from the time applications for dower were made in England by petition in equity, these equitable defenses have there been entertained. * * * "Now, inasmuch as it is a rule that statutes 'are not pre- sumed to make any alteration in the common law, farther or otherwise than the act does expressly declare' (Broome, 28), under this act of 1805, no bar could be pleaded to the writ of dower, the common law action, except matter constituting a bar at common law, or matter constituting by the express language of the statute. But an antenuptial agreement not admitted at common law, and not being an estate conveyed to the woman as a jointure in lieu of her dower, to take effect immediately on the death of her husband, and to continue during her life, would not be, by the express provision of tfce statute, a bar to the right of dower. Such antenuptial agree- ment, therefore, however evidently intended to be in lieu of dower, not being a bar at common law, and not falling within the express provision of the statute could not be pleaded in bar. It would fail to be a legal bar, through the defect, or want of correspondence to the express provision of the statutory law; and the same would, therefore, upon the widow's demanding and receiving her dower, by force of said Section 5, of the act of 1805, cease and determine. * * "This section of the law of 1824 was the first law authorizing proceedings in this State, by petition in chancery, by the widow, to obtain her dower. This provision gives her the additional, if not the exclusive right of petition in chancery to obtain her right of dower. And it matters not whether the provision was intended to afford her an appropriate remedy, by petition in equity, to obtain her right of dower in equitable estates allowed by section one of the act, as cumulative to her common law right of writ of dower, or, whether it was designed as an exclusive mode of procedure, and so intend" d to supersede the common law action of writ of dower. The latter has been the construction which this section of the statute seems to have pretty generally, if not universally, received. And it is believed that few, if any, writs of dower have been issued under this act of 1824. ' ' 81 A deed made by the husband and accepted by the wife, con- veying to her real estate, reasonable in amount and value and si Murphy v. Murphy, 12 0. S. 407. § 463 MERWINE ON REAL ACTIONS. 586 in consideration that she release as widow all claims against his estate, and the husband afterward dies iiltestate, owning other real estate in which she is entitled to dower under the statute, the widow may, at his death, elect to waive the pro- vision made for her in the deed and claim her dower. She can not claim both. 82 A parol agreement between husband and wife, on their sepa- ration, made on terms that are just and fair to the wife and fully executed, whereby the wife agrees to relinquish all claim to a distributive share in the husband's personal estate, ip case she survive him, will be enforced in equity. 83 And "where a postnuptial agreement, reasonable in itself, is fairly made between husband and wife, wherein it was agreed that they should henceforth live separate; that she should not claim dower in his lands, and would support herself and three of their children without charge to him, in considera- tion whereof he would cause to be conveyed to her in fee rimple, for her separate use, a specified portion of his farm, and such agreement has been executed by the wife, and no rights of creditors or of bona fide purchasers without notice intervene, and he dies without causing the conveyance to be made, such conveyance will be decreed in equity to be made, as against the heirs of the husband and those claiming under them with notice of her rights." 81 Equity will enforce a separation agreement, whereby the husband gave to the wife certain real estate and money, and both in consideration thereof agreed that "each party release any and all claim, right, title or interest, either vested or con- tingent in or to any property, present or future, acquired belonging to the other." This language had the force to enable the husband, while the wife lived, to dispose of his property without the assent of his wife. 85 The following antenuptial contract was held insufficient to 82 Spang] er v. Dukes, 39 0. S. 642. 257: Pinney v. Fellows, 15 Vt. R. 83 Miller v. Miller, 16 0. S. 531; 525; Livingston v. Livingston, 2 J. Thomas v. Brown, 10 0. S. 247; Ch. R. 537: Liles v. Fleming, 1 Boughton v. Houghton, 14 [nd. 505; Del). Eq. R. 185; Garlick v. Strong, Dellinger's Appeal, 35 Pa. St. 257. 3 Paige, 440; Wood v. Warden, 20 But see Finch v. Finch, 10 O. S. 0. R. 518; Shepard v. Shepard, 7 501 : Mansfield v. NTcIntyre, 10 0. 29. J. Ch. R. 57. 84 Thomas v. Frown. 10 0. S. 217. 85 Smith v. Smith, 57 <). S. 27. See also St. John v. St. John, 11 See also Duttenhofer v. Dutten- Ves. 520; Bettle v. Wilson, 14 O. hofer, 12 P. D. N. P. 736. 587 LAW AND PROCEDURE WHERE DOWER ASSIGNED. §463 prevent the widow, after the husband's death, from asserting dower in his real estate : "That the parties mentioned (husband and wife) have mutually agreed to join in the bonds of wedlock, and that the said T. J. agrees to pay or secure to be paid, out of his estate, by his executors, after his demise, the sum of $700, in two years after his demise, and she accepts that in lieu of expectancy of dower in my estate. Now, if the said Mrs. H. should be called off this stage of action before the said T. J., then in that event this obligation will be void; otherwise will be in full force. Also the said Mrs. H. agrees to sign all deeds and conveyances said T. J. may wish to make during his lifetime; and further, whatever the said Mrs. H. brings with her to said T. J.'s home, to be taken away after his decease." 80 Antenuptial contracts between husband and wife have al- ways been enforced in the- United States and England. The law favors them because they tend to promote marital hap- piness by removing one of the frequent causes of domestic difficulty; and although such an agreement may not constitute what, in law, may be technically called a legal jointure under the statute, it will still, in chancery, operate as an equitable jointure. 87 86 Johnson v. Johnson, 1 C. C. 5-22. &- Stilley v. Folger, 14 0. G50. "Indeed, we think it may be con- sidered as well settled, at this day, that almost any bona fide and rea- sonable agreement, made before marriage, to secure the wife in the enjoyment of either her own separate property, or a portion of that of her husband, whether dur- ing the coverture or after his death, will he carried into execution in a court of chancery. Though, for many purpose-;, by the marriage, the legal existence of the wife is merged in that of her husband, the law rec- ognizes her legal and separate iden- tity and her separate rights: and she may preserve the one and en- force the other, in contracts of this character. "It is said that courts of law are hampered by rigid rules, and that such agreements were never bars at law, unless they possessed the requi- sites of a jointure, under the stat- ute of 27 Henry VIII, ch. 10. This is of little consequence to be deter- mined in this case. It is certain, however, the statute of uses was never in force in this State, and that courts of equity here derive no authority from its provisions, to set up those arguments in bar of dower. It is equally certain that there have been repeatedly enforced in the courts of our sister States, equitable jointures, though they did not afford a competent livelihood of freehold for the wife, of lands and tenements, to take effect presently after the death of the husband. Lord Coke defines a jointure in 1 Ins. 36. "In New York, where the statute § 464 MERWENTE OX REAL ACTIONS. 588 Sec. 464. Right of dower in partnership realty. As to what are the rights of the heirs and widow of a de- ceased partner in the real estate held by the partnership at the time of the deceased partner's death, is a matter that has been frequently before the courts for determination, and it is still a matter of some perplexity, but it is now well settled that whatever real estate is purchased with partnership funds, the equitable estate accrues to the partnership, whether the legal title be conveyed to the partners as individuals, or to either of them, or to a stranger; and in such cases, upon the death of the person holding the legal title, it descends to his heir at law in trust for the benefit of the partnership — at least to the extent that it may be needed to satisfy demands against the partnership, whether such demands exist in favor of a stranger or members of the co-partnership. After all the partnership liabilities are paid and satisfied, then the widow has her right of dower in the partnership realty held and owned by the partnership of which her deceased husband was a member. Where real estate is purchased with partnership funds, or put otherwise in the partnership stock, to be used and held solely for partnership purposes, under the terms of the partnership articles, the real estate is regarded as con- verted out and out into personalty, so that the heir-at-law or widow take no beneficial interest therein in any event, but the proceeds not needed for partnership purposes pass to the personal representatives of the co-partners. 88 of uses has been copied and adopted, 1HS, §2), though the terms of an it lias been held that any agreement antenuptial arrangement may not between adults, for pecuniary pro- fall within the technical definition vision, to be admitted, neither of a jointure, if consistent with the charged upon the lands of the hus- rules laid down, no reason is per- band nor to take effect immediately ceived by us why it may be viewed after his death, nor equal to the in chancery as a good, equitable right of dower, in value, if reason- jointure." Stilly v. Folger, 14 0. abie, under all the circumstances, 650. See also Phillips v. Phillips, i- a good, equitable jointure. In- 14 0. S. 314: Williams v. Williams, deed, it is said, in one excellent 3 W. L. M. 152. work on real property, that, in 88 Ramelsberg v. Mitchell, 29 0. equity, any provision which a wo- S. 43. "Where partners manifest I, accepts before marriage, in an intention to hold land as partner- isfaction of a dower, as a trust ship stock, and sell it as such, estate, or a mere personal covenant dower can not be claimed in such for money to be paid by the bus- lands to the prejudice of partner- band, i- a good jointure. 1 Tlib- ship creditors." Sumner v. Hamp- bard's Real Prop. 108. son. 8 0. 328. • I'mler our own statute (Swan, "Real property purchased with 589 LAW AND PROCEDURE WHERE DOWER ASSIGNED. §465 In this connection it may be said that when land is sold under order of court in pursuance of law, any surplus remain- ing after the purpose for which it is sold is satisfied is re- garded as real estate. S9 Sec. 465. The widow's right of dower when there are con- flicting claims and liens. Most of the difficulties between a claimant for dower and other conflicting liens, grow out of the fact that, many times, we lose sight of two important facts in connection therewith. partnership funds and used for part- nership purposes, is thereby equi- tably converted into personalty, and continues to be such after the deatli of one of the partners and the dis- c intinuance of the business, and un- til there has been a complete settle- ment of the affairs of the firm and final division of assets." Fisher v. Lang. 19 W. L. B. 139, where will be found a discussion of the follow- ing cases: Green v. Green, 1 0. 535: Sumner v. Hampson, 8 0. 364; Green v. Graham, 5 0. 264; Ludlow v. Cooper, 4 0. S. 1 : Ramelsberg v. Mitchell, 29 0. S. 53. "In the case of lands held in com- mon, at law, the several interests of the owners are definite and as- certained. In the case of partner- ship property, the several shares of each partner is the residue of in- terest after the debts of the firm are paid and the claims of the other partner are satisfied, but this doctrine does not apply to partner- ships in real estate, where, by the express agreement of the parties, the land is to be conveyed into per- sonalty, and the share which each party is to receive is to be ascer- tained from the amount of money for which the land shall be sold." Ludlow v. Cooper. 4 0. S. 9. In Kinkead's Probate Law and Practice, at §211. this subject is carefully discussed. This author and jurist says: The consensus of judicial opinion is that partnership real propertv retains its ehnra^tor as realtv. with all the incidents of that species of property, but i> im- pressed with a trust, or that the interest of the heirs and widow in such lands is impressed with a trust; that the realty shall lie first applied to the liquidation of the partnership obligations; that such property, whether purchased by the partners under an express stipula- tion that the same shall be com- mitted to partnership purposes, or even where there is no special agree- ment, but the purchase price comes from the partnership funds, and the property is used by the firm, will be treated in equity as personalty until it has performed all its func- tions to the partnership, and there- by ceases to be any longer partner- ship property. L'ntil then it is not subject to either dower or inherit- ance, but after all the purposes of the partnership have been thus ac- complished, whatever remains passes to the widow and heirs, citing: Dar- row v. Calkins. 154 X. Y. 503: 61 Am. St. Rep. 637; Brady v. Kreu- ger, 8 S. Dak. 464: 59 Am. St. Rep. 771; Woodward-Holmes v. Nudd, 58 Minn. 236: 49 Am. St. Rep. 503: Robinson Bank v. Miller. 153 111. 244: 46 Am. St. Rep. 883: Galbraith v. Tracy. 153 111. 54: 46 Am. St. Rep. 867. 89 Kinkead's Probate Law aid Practice. §211. citing Pomeroy Eq. Jur. §1167: Gen'l Code. §10816 (~R. S. § 6171 : Griswold v. Frink. 22 0. S. 79. Tn this connection see In re Davis, 21 C. C. 720. affirmed in Hutching v. Davis. 68 0. S. 160. §466 MERWINE ON REAL ACTIONS. 590 The firct of these is. that when a wife or husband signs a mortgage or other instrument releasing dower, this release inures only to the benefit of the person to whom such mort- gage is given, and not to other lienholders and incumbrances; and secondly, that the wife is entitled to dower in all of the husband's real estate, no matter what debts, judgment- liens or incumbrances, to which she is not a party, may stand against such real estate. 00 Sec. 466. Widow's right of dower in partition proceedings. As stated above, the right of dower to the widow subsists bv virtue of the seizin of the husband, and a liability of '■'■ Kling v. Ballentine. 40 C. S. 394; Mandell v. McClave, 40 0. S. 407; Ketehum v. Shaw, 28 O. S. 503; Ketznuller v. Van Rensellaer, 10 O. S. 03. But see Bank v. Hin- ton, 12 O. S. 503: Hawley v. Brad- ford, 9 Paige, 200: Belie v. New York. 10 Paige, 49. When the wife joins in the execution of two mort- Snodgrass, 8 O. S. 235. "Where the owner of land executes a mortgage in which the wife does not join, and afterwards another mortgage to se- cure his debt, in which his wife does join, and afterwards suit to fore- close the first mortgage is instituted in which the wife and second mort- gagee are made parties, but fail to and there are subsequent appear, and the property is sold gages, judgment creditors, and the prop- erty is sold, the wife is entitled to dower in the fund after the satis- faction of the mortgages. Mandell v. McClave, 46 O. S. 407. But she is not entitled to dower on sale of property on which there is a pur- chase-money mortgage, in which she did not join until after the mort- gage- is satisfied. Culver v. Harper. 27 O. S. 404; Fox v. Pratt, 27 O. S. 512. Judgment creditors can not defeat dower of wife. Sprague v. Law, 17 C. C. 735: Taylor v. Fow- ler, ISO. 567. As In wife's rights under mort- gage describing real estate other than that conveyed, see Davenport v. Widow, O." S. 466. Where a mortgage was executed by husband and wife, and after the husband's death his administrator begins suit to sell real estate making the mort- gagor, who dues nut answer, and the wife parties, is assigned dower in the real estate covered by the mortgage, it was held that the mortgagor could not sell the real estate under forc- clcsure of his mortgage. Affleck v. under order of sale in such proceed- ings, and the proceeds distributed to pay costs and the first mortgage, such second mortgagee receiving nothing therefrom, nor any payment on his claim from any source until after fifteen years, his claim is barred by the statute of limitations, and if the wife of the mortgagor as' s dower in such land he is held to be entitled to dower therein." Cole v. Mathews. 38 W. L. B. 223. Where a wife joins the husband in a mort- gage on real property, in which she has a dower interest and which is sold on foreclosure, for more than the mortgage debt, she is dowable of the entire proceeds of the sale." Society v. Drake. 10 C. C. 50. As to the rights of a widow again«1 a purchaser under mortgage foreclo- sure in which she did not join, see McArthur v. Franklin. 16 0. S. 193. See also Taylor v. Fowler, 18 O. 507: Sprague v. Law, 17 C. 0. 7:!."i. As to real estate covered by vendor's lien, see Unger v. Leiter, 32 0. S. 'J Id: McArthur v. Porter, 1 0. 99. 591 LAW AND PROCEDURE WHERE DOWER ASSIGNED. §467 the husband to be divested of his interest in his real estate by a sale in partition, is one of the incidents of his seizin, and the inchoate or contingent right of dower of the wife is subject to this incident. When a sale of such real estate is made, the right of the wife to dower exists in the fund derived from such sale.'" Sec. 467. When homestead may be allowed in addition to dower. AY here the widow joins with her children in an agreement under which the homestead is sold to turn over the proceeds of the sale to the administrator of the deceased husband and father, and by him applied to the payment of a mortgage lien on said homestead, in the execution of which the widow had joined her deceased husband, it was held that she was entitled to the five hundred dollars in lieu of a homestead as provided by the statute, 92 and also her dower therein. 93 Sec. 468. Widow may redeem property and have her dower assigned — When. As is stated elsewhere herein, the wife's dower still remains in the real estate of her husband sold by order of court in a proceeding to which she is not a party. And Avhere she joins with her husband in the execution of a mortgage which is afterwards foreclosed in a proceeding to which she is not a party, she can redeem the real estate from the purchaser and then have her dower assigned therein. 94 9i Weaver v. Crowe. (< 0. S. 525. As to a proper remedy to enforce a (lower annuity charged against other heirs i:> a partition ease, see Miller v. Peters, 25 0. S. 270. Where partition allowed, though dower is previously assigned, see Tabler v. Wiseman, 2 0. S. 20!). When the widow, in a partition suit, asks dower in the proceeds, the com- missioners are not authorized to fix its value. Benner v. Bird, 2 W. L. B. 7(5. As to where an order made in probate court confirming parti- tion proceeding and depriving her of her rights, is void, sec Wilford V. Hainhofer, 2 C. C. N. S. 309. See iolso under this general subject of dower in partition, Biggins v. Jones, 39 0. S. 95. s-'Oen'l Code, §11732 ( R. S. §5437). 93 Bretz v. Moore. 4 C. C. X. S. 556; Wanzer v. Widow. 2 W. L. M. 426; but in a sale of real "state to pay debts in which she asks to lie endowed in the proceeds of the sale. she is not entitled to the sum of $500.00 in lien of a homestead. Jones v. Allen. (J X. P. 5 IS. •" K'etehnm v. Shaw. 28 O. S. 506: McArthur v. Franklin. 15 (). S. 485- Ibid, lfi O. S. 193: Jewell v. Fieldheiser. (IS O. S. 534: Jeffry v. Yoxtheimer, 12 C. C. 568; Baldwin v. Jacks, 3 O. Dec. 546. When §§ 469-473 MERWINE ON REAL ACTIONS. 592 Sec. 489. The effect of a defective conveyance of dower. When a conveyance which is intended to be in lieu of dower, fails through any defect to be a legal bar thereto, and the widow or widower availing of such defect demands dower, the estate or interest conveyed to such widow or widower, with the intention to bar dower, will thereupon cease. 95 Sec. 470. Effect of eviction from premises conveyed in lieu of dower. A widow or widower lawfully evicted from real property conveyed in lieu of dower, or in part thereof, is entitled to be endowed of so much of the residue of the real property of the deceased consort as will equal that from which such widow or widower is evicted. 90 Sec. 471. Adultery bars dower. A husband or wife who leaves the other and dwells in adultery shall be barred of the right of dower in the real estate of the other, unless the offense is condoned by the injured consort. 97 Sec. 472. Effect upon dower where lands are given up by fraud. If a husband or wife gives up any real property by collusion or fraud, or lose the same by default, the widow or widower may recover dower in the same. 98 Sec. 473. Dower is forfeited by waste. A tenant in dower in real property who commits or suffers any waste thereto, will forfeit that part of the real property to which such waste is committed or suffered, to the person having the immediate estate in reversion or remainder; and such tenant in dower will be liable to the person having the widow entitled to dower in partition §4102). Brown v. Kern, G N. P. proceedings, see G e n ' 1 Code, 72; Hetherington v. Graham. 6 §§12042, 12043, 12044 ( R. S. Bingham, 134; Scribner on Dower, SS">770. 5771, 5772). 5.32; Goss v. Frohman, 8 L. R. A. »BGen1 Code, §8600 (R. S. 102; Bell v. Neely, 1 Bail L. .312; §41!Hi). 110 Am. Deo. 686; Woodward v. !"■■(;•■ n'l Code, §8010 (R. S. Dowse, C. B. N. S. 722. §4191). MGen'l Code, §8612 (R. S. i<-On'l Code, §8011 (R. S. §4193). 593 LAW AND PROCEDURE WHERE DOWER ASSIGNED. §474 immediate estate in reversion or remainder, for the waste committed or suffered thereto." Sec. 474. Dower forfeited for non-payment of tax — When — Widow liable in damages in such cases — When. If any person who is seized of lands as tenant in dower, neglect to pay the taxes thereon so long that such land shall be sold for the payment of the taxes, and shall not, within one year after such sale, redeem the same according to law, such person will forfeit, to the person or persons next entitled to such lands in remainder or reversion, all the estate which he or she, so neglecting as aforesaid, may have in such lands; and the remainderman or reversioner may redeem said lands in the same manner that other lands may be redeemed after having been sold for taxes; and, moreover, the person so neg- lecting as aforesaid will be liable in action to the person next entitled to the estate, for all damages such persons may have sustained by such neglect. 1 Sec. 475. How dower may be assxgned by heirs of deceased. When the lands of a deceased person are not encumbered by mortgage, or by judgment obtained against such decedent during life, the heir, or guardian of any heir or other person having the next immediate estate of inheritance, may assign to the widow or widower dower therein, by writing, under his hand, particularly describing the same, which, if approved in writing on the deed of assignment by the probate judge of the county, and also by the probate judge of the county appointing such guardian, and accepted by the widow or widower, in writing thereon, shall be a good assignment in law. 2 ^ Gen'l Code. §8013 (R. S. § 4194). There can be no forfeiture for waste until dower is assigned. Fletcher v. Huntington, 8 N. P. 333: as to failure to pay taxes, see dinger v. Hoffman, 6 W. L. J. 490. The widow may cut timber on im- proved lands and sell the same to pay taxes where there is no other source of income. Crockett v. Crockett, 2 0. S. 181. i Gen'l Code, §5680, and Gen'l Code. §5688 (R. S. §2845, and R. S. §2852). See Tullis v. Pierano, 9 C. C. 647 ; Jones v. Devore. 8 O. S. 430; Clayson v. Ward, 1 X. P. 218; Clark v. Lindsey, 47 O. S. 437. 2 Gen'l Code', §12004 (R. S. §5707). The assignment of dower to the widow under this statute, while fair, will not be set aside by request of a creditor, because the probate judge failed to indorse his approval on the back of the deed. §§476,477 MERWINE ON REAL ACTIONS. 594 Sec. 476. The petition for dower. A widow or widower may file a petition for dower, in the common pleas court, against the heir or other person having the next immediate estate of inheritance, or any other estate or interest therein, setting forth the right thereto, and de- scribing the tracts of land in which dower is claimed; and the court, on the hearing, will render such judgment as to it appears just and consistent with the rights of all the parties interested therein. 3 It was held in a case where the husband, during coverture, was seized of several tracts of land, which after his death came into various hands, that a petition for dower could be preferred against each. 4 Such an action by a widow is a civil action and is appealable. 5 An order of the court fixing the annual value of the widow's dower, and directing a sale of real estate subject thereto, is a judgment within the meaning of the statutes. The petition for dower must set forth that the one against whom the action is brought owns the next immediate inherit- ance or a fee simple estate in the property in which dower is sought to be assigned. 7 It was said of the action for dower under an old statute that it was substantially a possessory action, having for its object the recovery of a private right, the possession of lands in which the complainant has an estate for life. 8 Sec. 477. Procedure incidental to actions for dower — How incumbrances may be set up. In actions for the assignment of dower, everyone who has an interest in the real estate by way of title thereto must be made parties defendant. Infant defendants must be served as in other actions. Guardians ad J item must be appointed who shall defend for them. Trustees for insane defendants Smith v. Whistler, 10 C. ('. 130. As bring the action for dower. Estate to who can assign tlie dower to the of Roth, (Y X. P. 498. widow, --re Railway Co. v. Jones, 4 ^ A I ]<-ti v. McCoy, 8 0. 41S. W. L. <:. :>. RCofry v. Lamb, t:? 0. S. :?<)0; sGen'l Code. §12005 (K. S. 2 N. E. 851. §5708). See No. 365 and following o Schiml v. Schiml, 4 ('. ('. 38; for form for petition, and for all Gen'1 (ode. § 8S10 ( ::. S. §3310). of the pleadings, writs and orders ' Railway v. Jones, •> 0. Dec. Re- of the eonrt in the proceedings. An print. 219. administrator or executor can not s Tuttle v. Wilson, 10 0. 27. 595 LAW AND PROCEDURE WHERE DOWER ASSIGNED. § 478 must be appointed to defend for them, and such trustees are required to answer jis provided by law. Non-resident defendants, whose places of residence are known and un- known, must be served by publication as in other actions. All parties are required to be in court before their rights can be heard and determined. A full discussion of each one of these topics will be found in tbe first chapter of tbis book. When the rights of a lessee or lienholder are showui to the court, by cross petition filed before judgment, such rights and liens will be regarded by the court; and no inequality will be allowed, or any injustice done to any such lessee or lien- holder. 9 Sec. 478. Procedure when land lies in different counties. When the land lies in several counties the petition may be filed in any county where any part of the estate is situated, and the common pleas court of such county shall have com- plete jurisdiction, and may order the whole dower of such widow or widower to be assigned in any one or more of such counties, and out of any one or more of such tracts of land, if the same can be done without prejudice to the rights of any person claiming the title to or holding a lien on such land. 10 Sec. 479. Procedure in case of death of plaintiff before as- signment. When the plaintiff dies before the assignment of dower, or before entry of a final judgment, the action may be revived in the name of the executor or administrator; it will be the duty of the court to proceed to hear and determine, if not before decided, whether the plaintiff would have been entitled to dower in such action ; and if it be found that the plaintiff would have been so entitled, the court will be required to judge in favor of such executor or administrator a sum equal 1o one-third of the rental value of the real estate in which "On'] Code, §1200(1 (B. S. v. Deming, 44 O. S. 645: Renner v. §570!)). "In a suit instituted for Bird. 2 W. L. B. 70: Russel v. Rus- assignment of dower, a defendant sel. 10 C. C. 46. can not. by his answer and cross- 1" Oen'l Code, §12007 (R. S. petition, change tlie suit to one for §5710). partition and dower." See McGill §§ 480-482 MERWINE ON REAL ACTIONS. 596 it is found the plaintiff would have been entitled to dower, from the time of filing the petition until death, after deducting one-third of the necessary expenses; and the sum so adjudged in favor of such executor or administrator will be a lien upon the real estate in which such plaintiff would have been en- titled to dower, and its payment may be enforced by sale as upon execution. 11 Sec. 480. Appointment of commissioners to assign dower — Duty of sheriff in such cases. When dower is adjudged, the court must appoint three judicious, disinterested men of the county in which the action is pending, who are not of kin to either of the parties inter- ested, to be commissioners, and issue its order to the sheriff of that county, commanding him that by the oaths of the commissioners, which may be administered by him, he cause to be set off and assigned such dower to the plaintiff, in the manner set forth in the judgment. 12 Sec. 481. Proceedings upon return of an assignment of dower. The commissioners and sheriff are required in all things to obey the order, and to return their proceedings thereon to the court at such times as the court appoints; if the court approve the assignment, it will be entered on the records thereof, and will be henceforth valid and effective in law; an execution will thereupon be issued directing the sheriff of the county to put the widow or widower in full possession of the dower assigned. 13 Sec. 482. How dower assigned when estate is indivisible. When an estate of which a widow or widower is dowable is entice, and no division thereof can be made by metes and bounds, dower must be assigned as of a third part of the uGen'l Code, §12008 (R. S. of the dower, see Biggs v. Annim, §5711,. 4 W. L. J. 540; Dunseth v. Bank', i-i;,. n'l (ode § L2009 (R. S. O. 70; Heikes v. Peepaugh, 4 W. §5712). See R. S. §1300, now L. J. 542; McArthur V. Franklin, §3000, as to fees of such commis- 16 O. S. 194; Nyce v. Obertz, 17 O. sionors. See Dnnsetli v. Bank, 77. O. 70: Allen v. McCoy, 8 O. 418; m Gen'l Code, §12010 (R. S. Larrowe v. Roam, 10 O. 40S. As to §5713). tho means of ascertaining tlie value 597 LAW AND PROCEDURE WHERE DOWER ASSIGNED. § 483 rents, issues and profits thereof, to be computed and ascer- tained by the commissioners. 14 In the assignment of dower under this provision of the statute, the commissioners, in ascertaining the net rents, the expenses of reasonable repairs and taxes of the property should be deducted from the gross rents, but no deductions should be made for the expenses of water rents or insurance. 15 It has been said that the assignment of rents, issues and profits is, as near as judicial instrumentalities can ascertain it, the exact equivalent of an actual assignment by metes and bounds. 1 ' 5 Dower so assigned is a freehold estate. The owners of the estate out of which the dower is assigned, are by priority of estate, personally liable for its payment, and this personal liability is over and in addition to the lien on the real estate." Sec. 483. When estate consists of unimproved timber land- How treated. When an estate of which a widow or widower is dowable, or in which a widow or widower owns a dower or curtesy interest heretofore assigned to or vested in her or him, consists, in whole or part, of timber lands or other unimproved lands or lots, commissioners, appointed as hereinbefore provided, are required to return to the court a true appraisement of such lands in money, and also a true appraisement of the annual rental value thereof, and if it be made to appear to the court, upon the hearing of such report, that the assign- ment of dower or curtesy in such lands, either by metes and bounds or as of the rents, issues and profits, can not be nor has not been made so as to provide such widow or widower with an income from the lands or lots so charged, commensurat e with the value of the same, as fixed and determined by said commissioners, the court must determine the value of such dower or curtesy in money, and make an order directed to the sheriff to advertise and sell the lands so charged with dower or curtesy, or so much thereof as may be necessary as nGen'l Code, §12011 (R. S. isMcAlpine v. Woodruff, 11 O. S. §5714). This act can operate pros- 120. ]iectively only. Vattier v. Johnston, i" Avery v. Xieman, 7 X. P. 46; 1 W. L. J. 303. citing Scribner on Dower, 630, 771, i". Hillgartner v. Gebhart, 25 0. S. and Park on Dower, 252, 253. 557. §484 MERW1NE ON REAL, ACTIONS. 598 upon execution; provided, said sheriff shall not be required to cause said lands to be appraised, but the value thereof as returned by said commissioners must be taken as the appraised value thereof, and such lands can not be sold for less than two-thirds of the appraised value; upon the confirmation of such sale, the court must order the payment to such widow or widower out of the moneys arising from the sale the value of such dower or curtesy so fixed and determined ; provided, further, the person or persons owning such lands or lots so charged, may, at the time the order for the sale of said lands is made as aforesaid, elect to pay to such widow or widower the value of such dower or curtesy; and if such payment be made within ten days or such further reasonable time as the court may grant, not exceeding ninety days from such elec- tion, the court must make a decree divesting such widow or widower of any interest by way of dower or curtesy in said lands ; and any widow or widower owning a dower or curtesy interest in timber lands or other unimproved lots or lands heretofore assigned to or vested in him or her, may maintain an action for relief in accordance with the provisions of this paragraph. 18 Sec. 484. Dower during pendency of petition. The commissioners are required, after they have set off and assigned dower, to make a just and true appraisement of the yearly value, after deducting necessary expenses, of the real estate in which the widow or widower is entitled to dower, estimating such value from the day of filing the petition to the day of assignment of dower, and make return of such appraisement and assignment, and the court is further required to adjudge the payment of one-third of the whole sum so returned, to the widow or widower, out of the real estate not covered by the dower, upon which judgment execution wGenl Code, §12011 (R. S. ceeds, but may have the lands ap- 8 5714). As to widow's right to cut praised and ascertain their fair timber <>n such lands to pay taxes value by hearing testimony, and may therein, see Crockett v. Crockett, 2 fix the amount of the dower from O. S. IS]. In an action for the as- the value thus found, and order the signment of dower in unimproved sale of so much 'if the land as is lands under this section, the court necessary to realize that amount. is not required to order the lands Russel v. Russel, 16 C. C. 4(i. .-old and to assign dower in the pro- 5'J'J LAW AND PROCEDURE WHERE DOWER ASSIGNED. § 485 may issue; but nothing herein contained will be so construed as to require execution to be issued against such of the defend- ants in dower as are minors, but in all such cases the dower will operate as a lien upon the real estate, for their proportion of the judgment, until the same is fully paid. 19 Sec. 485. Exemptions in estimating yearly value of dower. The commissioners, in making the appraisement of the yearly value of the real estate provided for in the last preceding paragraph, must exclude all permanent or valuable improve- ments made thereon after the deceased consort of such widow or widower ceases to be the owner thereof. 20 Sec. 486. Minor heir not to be prejudiced by collusive assign- ment. If, during the minority of an heir, dower be assigned to a widow or widower not entitled thereto, or, if the same was recovered by the default, fraud, or collusion of the guardian, such heir may, on coming of age, have an action against such widow or widower to recover the lands wrongfully awarded.-' Sec. 487. Costs in an action for dower. If resistance be made to the petition of a person claiming dower, and the court find that such person is entitled to dower as claimed in the petition, the defendant so resisting must pay all costs of suit ; but if no resistance be made, the plaintiff must pay one-third of the costs, and the legal owner of the real estate two-thirds thereof. 22 Sec. 488. Dower may be elected to be taken out of proceeds of sale — When. In actions for partition, when the estate can not be divided and is ordered to be sold, and in actions for the sale of real estate by executors, administrators, guardians and as- signees, acting under a general assignment for the benefit Ol creditors, and in all other actions and proceedings herein the court may order the sale of real estate, to satisfy any judgment mGen'l Code. §12014 ( R. S. 21 Gen'l Code, § 1201(i ( R. S. §5715). §5717). 2<>Gen'l Code, §12015 ( R. S. 22 Gen'l Code, §12017 (R. S. §5716). §5718). §§ 489-491 MERWINE ON REAL ACTIONS. 600 or decree, the widow or widower of any decedent, who has a dower interest therein, being a party, may file an answer, and waive the assignment of dower by metes and bounds, and ask to have the same sold free of dower, and to have allowed, in lieu thereof, such sum of money out of the proceeds of sale as the court deems the just and reasonable value of the dower interest therein. 23 Sec. 489. Election by answer is a release of dower, when. The answer of the widow or widower will have the same force and effect, and will be taken and held to be, in all respects, as a deed of release to the purchaser of such estate of the dower interest therein of such widow or wido.wer. 24 Sec. 490. Election for widow or widower by guardian — When. The guardian of a widow or widower who has been adjudged insane may appear and answer for such insane person in such action, subject to the approval of the court in which the action is pending ; and the answer of the guardian will have the same force and effect as if the widow or widower or the heirs answered personally; but the guardian will be liable to the widow or widower, or the heirs, for all damage or loss sus- tained by his fraud or collusion, notwithstanding the appro- val of the court. 25 Sec. 491. Petition to discharge land of dower of insane person. A person owning real property in this State, incumbered by the contingent or vested right of dower of an insane per- son, may apply, by petition, to the court of common pleas of the county in which the real estate, or any part thereof, is situated, making defendants thereto such insane person, and also the husband and wife and guardian, if such person has cither or both, for leave to sell all or any part thereof, dis- charged and unencumbered of such contingent or vested right of dower, which petition must set forth the insanity of the person, together with a description of the land proposed to as Oen'l Code. §12018 (R. S. 25 Gen'l Code, §12020 (R. S. 85719). §5721). 2* Qen'1 Code, §12019 (R. S. § 5720). 601 LAW AND PROCEDURE WHERE DOWER ASSIGNED § 492 be sold ; the court must thereupon appoint a committee of six competent men, of whom at least three are physicians, who will be required under oath, to inquire into the fact of the insanity of such person, and to hear testimony to be produced by the husband, wife, or guardian, or, if there is no such guardian, by a guardian ad lit an, to be appointed by the court in the action; and the committee will be required at any term of such court, to make a report, in writing, of the result of their investigation, signed by the members thereof. 20 Sec. 492. Report of committee to inquire into insanity. If the committee report unanimously that such person is, in their opinion, permanently insane, the court will then appoint three judicious freeholders to appraise the real estate described in the petition, whether the same is in one or several counties, avIio will be required to report in writing the value of each tract.- 7 Sec. 493. Procedure on report of insanity to court. Upon the filing of such report the court may direct such petitioner to convey, by good and sufficient deed of conveyance, to the insane person, to be held by such person in fee, such proportion of the real estate described in the petition as may, to the court, seem just and proper, or the court may assign to such insane person, to be held by such person during life, after the death of the husband or wife of such insane person, such proportion of the real estate described in the petition as may, to the court, seem just and proper for the support of such insane person, or the court may order the petitioner to invest an amount, to be by it fixed, in the stock of a com- pany, or stocks created by the laws of this State, as by the court may be designated, the profits and dividends arising from such investment to be applied to the support and main- tenance of the insane person after the death of the husband or wife of such insane person; and the petitioner may, upon his compliance with the order of the court, sell all the real property the petitioner is possessed of, described in the peti- seden'l Code, §12021 (R. S. 27 Cen'l Code, §12022 (R. S. §5722). §5723). §§494,495 MERWINE ON REAL ACTIONS. 602 tion, free and unencumbered of the contingent or vested right of dower of such insane person. 28 Sec. 494. Lands of insane person barred of dower — How. When the husband or wife of an insane person conveys any real estate in this State, in which such insane person has a contingent or vested right of dower, by virtue of such owner- ship of the husband or wife, or otherwise, and the insane per- son does not join a husband or wife in such conveyance, the husband or wife may apply by petition to the court of common pleas of the county in which the insane husband or wife resides, or, if the insane husband or wife resides out of the State, then in the county in which the real estate is situated, for leave to have any part or all of such real estate so conveyed released of the dower right therein, which petition must set forth the insanity of the husband or wife, and the description of the land proposed to be affected ; to which petition the insane person, guardian, if there is one, and all persons in interest, must be made defendants and the petition must be proceeded in, in all respects, in the manner prescribed in the three preceding paragraphs, except that instead of ordering the petitioner to sell the real estate, or to convey or assign to such insane person any part thereof, it is made the duty of the court to direct the petitioner to make such investment as is provided in the preceding paragraphs, or may require the petitioner to secure the amount to the use of the insane person by mortgage of unencumbered real estate of at least double the value thereof, and upon compliance by the peti- tioner with the order of the court, the court is required to enter a judgment releasing and discharging the real estate from the incumbrance of such contingent or vested right of dower, and is required to adjudge the holder of the legal title, or other party liable,- 8 * to pay to the petitioner any sum withheld or retained as indemnity against such dower right. Sec. 495. Conveyance of real estate free from dower if wife or husband is insane. The statute further provides that any real estate or interest therein, coming to any person by purchase after the husband zsGenl Code, §12023 (R. S. zs *Gen'I Code, §12024 (R. S. §5724). 5725). 603 LAW AND PROCEDURE WHERE DOWER ASSIGNED. § 496 or wife of such person is adjudged insane, and is an actual inmate of any asylum for the insane provided by this State, or confined in the insane department of any epileptic hospital of this State, or any State of this Union, may be conveyed by such person, at any time while such insane husband or wife remains an inmate of any such asylum, free and clear from any dower right, or expectancy of such insane person, and dower will not attach to any such real estate both so acquired and conveyed during said time as aforesaid in favor of such insane person, and the indorsement upon the instrument of conveyance, by the superintendent of any such asylum that such husband or wife is an insane inmate of such asylum, stating when received therein, signed officially by him, will be sufficient evidence of the fact that such husband or wife is such insane inmate and such indorsement will be a part of such instrument of conveyance.'-" Sec. 496. Wife barred of dower when divorce granted to her husband on account of her aggression. When the divorce is granted by reason of the aggression of the wife, she will be barred of all right of dower in the lands of which her husband is seized at the time of filing the petition for divorce, or which he thereafter acquires, whether there is issue or not ; and the effect of the judgment of divorce will be to restore to her the whole of her lands, tenements or hereditaments not previously disposed of, and not allowed to her husband as alimony, subject to the dower right of her husband therein, and the court may adjudge to her such share of the husband's real or personal property, or both, as it deems just and reasonable; or the husband may be allowed such alimony out of the real and personal property of the wife as the court deems reasonable, having due regard to the property Avhich came to the wife by marriage, and the value of her real and personal estate at the time of the divorce, which alimony may be allowed to him in real or personal property, or both, or by decreeing to him such sum of money, payable either in gross or in installments, as the court deems just and equitable; and if the husband survives his wife, he will also be entitled to his right of dower in the real estate of his wife not allowed to him as alimony, of which she was 2"Gen'l Code, §12025 ( R. S. § 5725a). §497 MERWINE ON REAL ACTIONS. 604 seized at any time during the coverture, and to which he had not relinquished his right of dower. 30 When the husband obtains a divorce from his wife on service by publication, the court is without power in such action to divest her of her dower in his property. In order to give the court power in such cases to make any order or decree affecting real estate of the parties, there must be per- sonal service. 31 Sec. 497. Dower rights when divorce granted by reason of the aggression of the husband. When a divorce is granted by reason of the aggression of the husband, the wife will, by force of the judgment of divorce, be restored to all her lands, tenements and hereditaments not previously disposed of, and the husband will be barred of all right of dower therein, and if she so desire, it will be the duty of the court to restore to her any name she had before such marriage; she will be allowed such alimony out of her husband's real and personal property as the court deems rea- sonable, having due regard to the property which came to him by marriage, and the value of his real and personal estate at the time of the divorce, which alimony may be allowed to her in real or personal property, or both or by decreeing to her such sum of money, payable either in gross or install- ments, as the court deems just and equitable; and if the wife survives her husband, she will also be entitled to her right of dower in the real estate of her husband not allowed to her as alimony, of which he was seized at any time during coverture, and to which she had not relinquished the right of dower; but in any case, when it appears to the court that the husband is the owner of but little or no property or means, so Gen'l Code, §11903 (R. S. §5700). See in connection with this matter Mansfield v. Mclntire, 10 O. 27 ; Doerr v. Forsythe, 50 O. S. 726. At common law a divorced wife was nut entitled to dower, the nil' being that dower conies to the widow, in t to the divorced wife. Julier \. Julier, 02 < >. S. L90; 50 X. E. 661. As to dower rights of wife divorced from her husband by reason <>f his aggression, as against dower rights of second wife of her former husband, see King v. King, !) C. C. 191. See also Rice v. Leni- ley, 10 O. S. 596, construing the act of 1824, and McGill v. Deming, 44 O. S. 645; 11 X: E. 118, construing the act of 1853. si Doerr v. Forsythe. 50 O. S. 726; 35 X. E. 1055. The court, under sec- tion of the statute, Gen'l Code, g 1 199.-5 (R. S. § 5700), has no power over the property of each except as given therein. DeWitt v. DeWitt, 67 O. S. 350. 605 LAW AND PROCEDURE WHERE DOWER ASSIGNED. § 498 and the wife is the owner of lands or personal estate, or both, the court may adjudge to the husband such share of the wife's real or personal property, or both, or may decree to him such sum of money out of her estate, payable in gross or in install- ments, as the court deems just and reasonable, having due regard to all the circumstances of the parties. 02 It was held, under a similar statute, that where the wife obtained a decree of divorce on account of the aggression of the husband, and afterward marries, she will, on the death of her divorced husband, be entitled to dower in all of the real estate of which her divorced husband was seized during their coverture. 33 Sec. 498. Election when person unable to appear or non- resident. If the widow or widower of the testator be unable to appear in court by reason of ill health, or is not a resident of the county in which such election is required to be made, the probate court is required, on an application made in behalf of such person, to issue a commission, with a copy of the will annexed, directed to any suitable person, to take the election of such widow or widower to accept the provisions of such will in lieu of the provision made by law; and it is also made the duty of the court in such commission to direct such person to explain the rights of such widow or widower under the will, and by law. 34 Sec. 499. How the election of an insane or imbecile person is made. If the widow or widower of any testator be unable to make an election by reason of unsoundness of mind, the probate 32Geai Code, §11990 (R. S. §5699). "Section 5699 of the Re- vised Statutes, which gives a right of dower to a divorced wife in the lands of the husband in certain cases, is enabling in its character, and does not create a disability, nor impose any restraint on the power of the wife to relinquish such dower, in any lawful mode, when the di- vorce is granted, or at any time thereafter." Julier v. Julier, 62 0. S. 90. 33Lamkin v. Knapp, 20 O. S. 154; Arnold v. Donaldson, 46 O. S. 73. "A woman who was divorced from her husband, and to whom his lands were allowed as alimony, by decree of the court, is not. after his death, entitled to dower in such lands." McKean v. Ferguson, 51 0, S. 207. 34Gen'l Code, §10573 (R. S. §5965). § 500 MERWINB ON REAL ACTIONS. 606 court must, as soon as the facts come to the knowledge of the court, at any time within one year after the death of the testator, appoint some suitable person to ascertain the value of the provision made by the testator for such widow or widower in lieu of the provisions made by law, and the value of the rights of law in the estate of the deceased consort; and if the court is satisfied, on the return of the report of the person appointed to make such investigation, that the provision made by the testator for the widow or widower, in the will, is more valuable and better than the provision by law, the court must make a record upon its minute book the entry that such insane or imbecile widow or widower, by virtue of the proceeding herein provided, elects to take under the will of the deceased consort, which election, when so entered, will have the same force and effect as an election made by one not under such disability. 3 "' Sec. 500. Effect of widow's election or non-election. The election of the widow or widower to take under the will must be made in person, in the probate court of the proper county, except as hereinafter provided; and on the applica- tion by a widow or widower to take under the will, the cour^ is required to explain the provisions of the will, the rights under it, and by law in the event of a refusal to take under the will. The election of the widow or widower to take under the will must be entered upon the minutes of the court; and if the widow or widower fail to make such election, the widow or widower will retain the dower, and such share of the per- sonal estate of the deceased consort as the widow or widower would be entitled to by law in case the deceased consort had died intestate, leaving children. If the widow or widower elect to take under the will, tin- widow or widower will be barred of dower and such share, and will take under the will alone, unless as provided in the next preceding section; but such election by ;he widow or widower to take under Ihe will, will not bar the right to remain in the mansion of the deceased consort, or the widow to receive one year's allowance for the support of herself and children, as provided by law. unless the will shall expressly otherwise direct. 38 35 Genl (ode, ? 10574 ( R. S. "<■■ Con'] Code, §§ 10570. 10571, ? 5966). 10572 (R. S. § 5!)(i4 ) . 607 LAW AND PROCEDURE WHERE DOWER ASSIGNED. § 501 Sec. 501. Election of widow to take under will bars dower unless the will provides that she shall have both. If any provision be made for the widow or widower in the will of the deceased consort, it is made the duty of the probate court, after the probate of such will, forthwith to issue a citation to such widow or widower to appear and elect whether to take such provision or to be endowed of the lands of the deceased consort and take the distributive share of the per- sonal estate; and such election must be made by the widow within one year from the date of the service of the citatum aforesaid; provided, that such widow or widower may, at any time before the period of such election has expired, tile her petition in the court of common pleas for the proper county, making all persons interested in said will defendants to such petition, asking a construction of the provisions of said will in her or his favor, and to have the advice of said court, or of the proper appellate court on appeal thereon; and if proceedings for such advice, or proceedings to contest the validity of such will, be commenced within such year, the widow or widower will be entitled to make election within three months after such proceedings have been fully disposed of, and said will set aside ; but the widow or widower will not be entitled to both dower and the provisions of the will in her or his favor, unless it plainly appear by the will to have been the intention that the widow or widower should have such provision in addition to the dower and such distributive share. 36*G«n'l Code, §§ 105&6, 10567, 10568, 10569 (R. S. §5963). FORMS. PROCEDURE FOR ASSIGNMENT OF DOWER. Forms. Foems. 365. Petition for dower. 370. The summons. 371. Sheriff's return of service of summons. 372. Order of court appointing 373. guardian ad litem for in- 374. fant defendants. Answer of guardian ad litem for infant defendants. 366. 367. 36S. 369. Decree for dower. The writ of dower issued to the sheriff. Sheriff's return of the writ. Commissioner's report. Order of court confirming commissioners' report. No. 365. Petition for dower. Court of Common Pleas, County. Ohio. M. A. M., Plaintiff, vs. No. E. L. J. and J. J., her husband, M. M. C and J. M. C, her husband, C. M. F. and R. J. F., her husband, Q. W. M. and H. M., his wife, S. M., V. M., B. M. M., C. M. M., J. A. M., J. E. M., and M. H., Defendants. The plaintiff says that on or about the day of , 19 , she was duly married to one, T. M., and that the said T. M. has since departed this life on or about the day of . 19 , and the said plaintiff further says that the said T. M., her late husband, during her coverture with him, was seized of an estate of inheritance in and to the following real estate, situate in the County of , State of Ohio, and in the and bounded and described as follows: (Here insert description of real estate). Plaintiff further says that the said E. L. J., M. M. C, C. M. F., T. W. M., S. M., V. M., B. M. M., C. M. M., J. A. M. and J. E. M., the last four of whom are minors, now claim to hold the estate of the said T. M., and to be the joint holders of the fee in and to the said premises so as aforesaid described. Plaintiff further says that by reason of the premises aforesaid, 608 609 FORMS. she is entitled to have set off and assigned to her reasonable dower in the real estate hereinbefore described. Plaintiff therefore prays that the writ of subpoena may issue against the said defendants and that guardians ad litem may be duly appointed for said infant defendants, and that, on the final hearing of this case, her reasonable dower in said real estate may be decreed to her and an assignment thereof be made in accordance with law, and for such other and further relief as the nature of her case may in equity require. "» Attorney for Plaintiff. (The petition is verified in the usual form.) No. 366. Summons. State of Ohio, County, ss.: To the Sheriff of said County, Greeting: You are commanded to notify E. L. J. and J. J., her husband, M. M. C. and J. M. C, her husband, C. M. F. and R. J. F., her husband, T. W. M. and R. M., his wife, S. M., V. M. and B. M. M., C. M. M., J. A. M. and J. E. M., minors, who live with plaintiff, and M. H., that they have been sued by M. A. M., in the court of Common Pleas of — County, and that unless they answer by the day of , 19: , the petition of the said plaintiff against them filed in the clerk's office of said court, said petition will be taken as true and judgment rendered accordingly. You will make due return of this summons on the day of -, 19 • Witness my hand and seal of this court this day of , 19—. Clerk of the Court of Common Pleas of County, Ohio. No. 367. Sheriff's return of service of summons. Received this writ on the day of , 19 , and pursuant to its command on the day of , 19 , I served E. L. J., J. J., M. M. C, J. M. C, R. J. F. and R. M. a true copy of this writ with all the endorsements thereon by leaving true copies at their usual places of residence, and also on the same day I served 0. M. F., T. W. M. and S. M., V. M. by delivering to each person a true copy of this writ with all the endorsements thereon, and also on the same day I served B. M. M. (a minor), and M. A. M., who is guardian of B. M. M. by delivering to each personally true copies of this writ with all the endorsements thereon, and also on the same day I served J. A. M., a minor, with a true copy of this writ with all the endorsements thereon, by leaving a true copy at her usual place of residence, and also on the same day I served M. A. M., who is guardian of J. A. M., personally with a true copy of this writ, with all the endorsements thereon, and also on the same day I served MERWINE ON REAL, ACTIONS. 610 J. E. M., a minor, with a true copy of this writ, with all the endorse- ments thereon, by leaving a true copy at his usual place of residence, and also on the same day I served M. A. M., who is guardian of J. E. M., personally with a true copy of this wrk, with all the endorsements thereon, and also -on the same day I served M. H. with a true copy of this writ with all the endorsements thereon, by leaving a true copy at his usual place of residence. Sheriff of Count]/, Ohio. No. 368. Order of court appointing guardian ad litem for infant defendants. On motion of the plaintiff to the court for that purpose, is hereby appointed as guardian ad litem of the said B. M. M., C. M. M. J. A. M. and J. E. M., minors and infant defendants in this case, with leave to file herein an answer for said infant defendants, instanter, all of which is now done accordingly. No. 369. Answer for guardian ad litem for infant defendants. (Same caption as in the petition.) Answer of . Guardian ad Litem, fob B. M. M., C. M. M., J. A. M. and J. E. M., Infant Defendants. Now comes , who has been duly appointed by this court, guardian for this suit, of the said infants, B. M. M., C. M. M., J. A. M. and J. E. M., and for joint answer for his said wards to the petition of the said plaintiff, filed herein, says, that he denies each and every allegation and statement of fact contained in said petition and demands full proof thereof. , (luardian ad Litem of sakl Infant Defendants. No. 370. Decree for dower. (Same caption as in the petition.) This cause coming on for hearing, and a jury being waived, was submitted to the court upon the pleadings, exhibits and evidences and on consideration whereof, the court finds that the said T. M. was in his lifetime, seized in fee simple of the real estate and premises described in the petition; that the said T. M. died intestate at the City f ( Ohio, on the day of , 19 ; that the said plaintiff, M. A. M.. is the widow of the said T. M., deceased, and that she is entitled to have her dower in said real estate and premises assigned and set off to her. as she prayed for in her said petition. It is therefore ordered, adjudged and decreed by the court that the said plaintiff, M. A. M., be endowed of one full equal third part of the said real estate and premises described in her said petition, 611 FORMS. and that a writ issue to the sheriff of said county of , com- manding him that by the oaths of B. F. M., J. E. and T. W. J., three judicious, disinterested men of the vicinity, in said county, who are not of kin to either of the parties and who are hereby appointed commissioners for that purpose to set off and assign such dower to said plaintiff, M. A. M., according to law, and that of said proceedings, together with said commissioners' appraisement of the monthly net value of said real estate, estimated from the day of , 19 , to the day of such assignment of dower, the said commissioners and the said sheriff make return without unnecessary delay. No. 371. The writ of dower issued to the sheriff. The State of Ohio, County, ss.: To the Sheriff of our said County, Greeting: Whereas, in a certain petition for dower, now pending in our Court of Common Pleas, wherein M. A. M. is petitioner, and E. L. J., et al. defendants, the real estate set forth in the petition is de- scribed as follows, to-wit: (Here insert description of real estate) in which said premises the said petitioner is entitled to dower. We therefore command you that, by the oaths of B. F. M., J. E. and T. W. J., three judicious, disinterested men of the vicinity of said land and who are not of kin to either of the parties interested, you cause one equal third part of the real estate aforesaid to be set off and assigned to said M. A. M. for her dower interest therein, and also that, by the oaths aforesaid, you cause to be made a just and true appraisement of the monthly value, after deducting necessary expenses of the aforesaid real estate, estimating such value from the day of , 19 , up to the day of this assignment; and that you certify your proceedings in the premises to this Court of Common Pleas without unnecessary delay, and bring this order with you. Witness clerk of our said court at , Ohio, this day of , 19 . . No. 372. Sheriff's return of the writ. (Same caption as in the petition.) As commanded by this writ, I have, by the oaths of B. F. M., J. E. and T. W T . J., three judicious, disinterested men of the vicinity, and not being of kin to either party, and who were duly appointed by this court for that purpose, caused to be set off and assigned to the within named M. A. M., plaintiff, as her dower estate, so much of the land and tenements described in this writ as is mentioned and described in the report of the said commissioners hereunto annexed, marked "A," and which report is hereby made a part of this return. Given under my hand and seal this day of , 19 . Sheriff. MERWINE ON REAL ACTIONS. 612 No. 373. Commissioners' report. According to the command of the writ for the assignment of dower issued in this case, and on the call of the sheriff of said county, we, the undersigned commissioners, after being first duly sworn and not being of kin to either of said parties and upon actual view of the premises, do set off and assign to the said M. A. M. as and for her dower estate so much of the lands and tenements de- scribed in the said writ as is contained in the following tracts: (Here insert description of real estate). We also by our oaths as aforesaid do estimate and appraise the monthly net value of the real estate described in said writ, at the sum of $ — . Given under our hands and seals this day of , 19 . No. 374. Order of court confirming commissioners' report. (Same caption as in the petition.) On motion the court by , counsel for the plaintiff, and upon producing the sheriff's return and the assignment of dower, under the former order of this court, and the same being found to be in all respects in conformity to law, it is ordered that the said proceed- ings and assigment of dower, be and the same are hereby approved and confirmed, and that the said M. A. M. hold and possess the land so assigned, as and for her reasonable dower in and to the said premises; and it is further ordered that a writ of seizin issue to the said sheriff commanding him to deliver to the said M. A. M. full possession of the premises assigned to her as aforesaid. It is further ordered that the said defendants, E. L. J., M. M. C, C. M. F., T. W. M., S. M., V. M., B. M. M., C. M. M., J. A. M. and J. E. M. pay to the said M. A. M., share and share alike, the sum of $ , being one-third of the sum returned by said commissioners as the net value of said premises, from the time of filing this petition to the assignment of said dower. It is further ordered that the said M. A. M. pay one-third of the costs of this suit, taxed to the sum of $ , and that the other two-thirds of said costs shall be paid by the said E. L. J., M. M. C, C. M. F., T. W. M., S. M., V. M., B. M. M., C. M. M., J. A. M. f and J. E. M., share and share alike, within days from the entering of this order, and in default thereof execution issue therefor as upon judgment. (For forms for answers and for proceedings in actions for sale of real estate where the widow or widower joins in the prayer of the petition for a sale of the real estate and asks to be endowed out of the funds arising from the sale, see forms Nos. 194, 197, 204, 117, and 140. See also No. 295 for assignment of dower by rents and profits in partition. See also No. 294 for assignment of dower by- metes and bounds in partition). 613 FORMS. PROCEDURE TO SELL REAL ESTATE ENCUMBERED BY INCHOATE DOWER OF AN INSANE WIFE. FORMS. 37 3. Petition by husband for sale of real estate free of dower of insane wife. 376. The summons. 377. The sheriff's return of serv- ice of summons. 378. Motion for tbe appointment of a guardian ad litem. 379. Entry appointing guardian ad litem. 380. Official notice by the clerk of the court to tbe committee. 381. Answer of guardian ad litem. 382. Motion for substitution of members of the committee. FORMS 3S3 384. 385. 386. 387. lleport of the committee to investigate as to the in- sanity of the defendant. Affidavit of citizens as to the expediency of the sale of real estate as proposed in petition. Entry appointing appraisers. The appraisers' report of said real estate and their oath. Entry authorizing sale of real free of widow's estate dower. ■ i County. Ohio. No. No. 375. Petition in such case. Court of Common Pleas. G. H., Plaintiff, vs. S. H., Defendant. Plaintiff says that he is the owner in fee simple of the following described real estate in the County of , State of : (Here insert description of real estate); that on the day f . t 19 ; he, by contract in writing, sold said real estate for the sum of $- acres of land in and agreed to take in pay- -, and agreed to convey to one ment thereof the same to him by a good and sufficient warranty deed on or before the - ■ day of - — , 19 , at which time said acres of land, and that said was to convey to plaintiff said . under said contract entered into and is now in the possession of said real estate first hereinabove described. Plaintiff further says that the said defendant, , is his law- ful wife, and that on or about the day of , 19 , she became insane and has since been sent to the insane asylum at , Ohio, where she now is. Plaintiff therefore prays that the said S. H. may be notified hereof and that he may be authorized to complete said contract and that said real estate be released and discharged from the contingent right of dower of the said S. H. in pursuance of the statute in such case made and provided, and for such other and further relief as might be necessary for the purpose as hereinbefore set forth and alleged. Attorney for Plaintiff. (The petition should be verified as in other cases). MERWINE ON REAL ACTIONS. 614 No. 376. Summons. State of Ohio, County, ss.: To the Sheriff of County, Greeting: We command you to notify S. H., who is in an insane asylum in your county, that she has been sued by G. H. in the Court of Common Pleas, of County, and that unless she answer by tne _ d a y of , 19 , the petition of said plaintiff against her filed in the clerk's office of said court, such petition will be taken as true, and judgment rendered accordingly. You will make due return of this summons on the day of , 19 . Witness my hand and seal of said court this day of . 19 . , Cleric. No. 377. Sheriff's return of service of summons. State of Ohio, County, ss.: Received this writ on the day of , 19 , at o'clock M., and pursuant to its command on the day of , 19 , I served the within named defendant, S. H., by delivering to her personally a true and certified copy of this writ, with all the endorsements thereon. r," Sheriff of County, 0. No. 378. Motion for the appointment of a guardian ad litem. (Same caption as in the petition.) The plaintiff now moves the court for the appointment of as guardian ad litem of the defendant herein, and of Dr. Dr. > Dr. , E. B., J. G. and G. B. T., as a committee to examine as to the insanity of the defendant. No. 379. Entry appointing guardian ad litem. (Same caption as in the petition.) On motion of the plaintiff by his attorney, and it appearing that the defendant is an insane person, it is ordered that be, and he is, hereby appointed guardian ad litem of said defendant; and said guardian ad litem appears in open court and accepts said ap- pointment. And thereupon on motion it is ordered that , and , all of whom are physicians, and , and , all of whom are good and competent men, be and they are hereby appointed a committee to hear testimony and inquire into the insanity of the defendant, S. H., and report as to whether she is, in their opinion, permanently insane, to this court forthwith. 615 FOKMS. No. 380. Official notice by the clerk of the court to the com- mittee. State of Ohio, — County, ss.: To , and , who are physicians, and , and , you are hereby notified that you have been, by the Court of Common Pleas, within and for said county and State, appointed as a committee to hear testimony and inquire into the insanity and report as to whether S. H. is permanently insane, in the case of G. H., plaintiff, vs. S. H., defendant, in the Court of Common Pleas of County, Ohio, and meet at the office of on the day of , 19 , at o'clock, m., of said day for that purpose, and report your proceedings therein forth- with to this court, now sitting. Witness my hand and the seal of said court at this day of , 19 . , Clerk of said Court. No. 381. Answer of guardian ad litem. (Same caption as in the petition.) And now comes , one of the attorneys of this court, who was heretofore appointed guardian ad litem for defendant in this action, and accepts said appointment, and for his answer, says that he has no" knowledge of the matters and facts and statements and alle- gations of said plaintiff's petition, and he, therefore, denies each and every allegation and averment therein contained and demands proof of the matters set forth in said petition, and that the rights of said defendant be fully protected in the premises. Guardian ad litem for Defendant. No. 382. Motion for substitution of members of the committee. (Same caption as in the petition.) On motion to the court by plaintiff, the guardian ad litem consent- ing thereto, , , and are substituted in the places of , , and on the committee heretofore appointed in this case. No. 383. Report of the committee to investigate as to the insanity of defendant. (Same caption as in the petition.) To the Court of Common Pleas: The undersigned, a committee appointed by the court in the above entitled case to inquire into the fact of the insanity of the defendant, S. H., after being duly sworn, proceeded to hear the testimony in tha - MERWINE ON REAL ACTIONS. 616 presence of plaintiff's attorney, and after due considerr tion thereof, we find that she is insane, and now an inmate of the asylum of County, Ohio, under treatment and wholly disqualified to execute a deed or other contract, and in our opinion she is perma- nently insane. Respectfully submitted, , M. D. , M. D. — — , M. D. No. 384. Affidavit of citizens as to the expediency of the sale of real estate proposed in the petition. (Same caption as above.) State of Ohio, — County, ss.: , and , being duly sworn, depose and say they are well acquainted with the real estate consisting of acres of land, situated in , with a dwelling house and other improvements thereon, which the plaintiff has exchanged for real estate, and in their opinion the said acres are worth as much or more than said real estate first described in the petition. S\ orn to and subscribed before me this day of , 19 . , Notary Public, County, Ohio. No. 385. Entry appointing appraisers. (Same caption as in the petition.) The committee heretofore appointed in this case, having made out and filed their report that in their opinion the defendant, S. H., is per- manently insane, and the court finding the allegations of the petition to be true, it is ordered that , and , three judicious freeholders of this county, after being first duly sworn, appraise the real estate in plaintiff's petition mentioned, to-wit: (Here describe i-eal estate), and that they return in writing the appraised value of said real estate to this court forthwith. No. 386. The appraisers' report of said real estate. (Same caption as in the petition.) We, the undersigned, in obedience to the orders of the court, and after being duly sworn, proceeded to view and appraise the real estate 617 FORMS. described in said petition, and after due consideration, we appraise the same as follows, to-wit: $ . The State of Ohio, County, ss.: The above appraisers were duly sworn by me to make a true and impartial appraisement of the above described real estate. Notary Public, County, Ohio. No. 387. Entry authorizing sale of real estate free of widow's dower. (Same caption as in the petition.) The appraisers, having returned their report in writing of the value of the real estate in plaintiff's petition described, and it appear- ing from the evidence offered by the plaintiff that the said real estate which the plaintiff is to secure in exchange for that in the petition, is of equal, or greater value than that described in the petition, and that the defendant's rights therein will be of equal or greater value than in the other, it is therefore ordered, adjudged and decreed that upon the execution and delivery of a deed to the plaintiff, for the real estate so by him taken in exchange, he be and he is hereby authorized to execute and deliver a deed for said real estate in his petition de- scribed, to the purchaser, unencumbered of any contingent right of dower of the said S. H., defendant therein. It is further ordered that the plaintiff pay within thirty days from this date, the costs of this proceeding, including $ due to the members of the committee and appraisers hereinbefore appointed in this case, and in default thereof that execution issue therefor. CHAPTER XYI. THE LAW AND PROCEDURE BY WHICH TITLE TO REAL ESTATE IS TRANSFERRED BY CONDEMNATION PROCEEDINGS. SECTION. 502. Constitutional provisions as to the inviolability of pri- vate property. 503. Necessity for the right of emi- nent domain. 504. Power of municipalities to ap- propriate property for pub- lic uses. 505. For what purposes a munic- ipality may appropriate property. 506. In what cases property may be appropriated outside a mu- nicipality — Proviso as to cemeteries. 507. The resolution of council and notice of intent to appro- priate. 508. In what courts the application may be made. 509. The service of notice to own- ers of property. 510. The court must fix time for the inquiry. 511. A view of the premises may be required. 512. Guardian ad litem appointed, when. 513. How jury to return assessment — Manner of conducting the case. 514. Verdict in whole or in part. 515. Orders as to payment or de- posit of assessment — Order as fco interpleader. 51(1. The manner in which costs are assessed and paid. HIT. How interested parties may give bond in such cases. 518. Review proceedings — Appeal to court of common pleas. SECT 519. 520. 521. 522. 523. 524. 525. 52G. 527. 528. 529. 530. 531. 532. 533. iox. '.fleet of neglect to pay or take possession in six months. What law governs appropria- tion of private property by corporations. Probate lias exclusive juris- diction to make inquest for amount of compensa- tion to owner in appropria- tion cases. In what cases appropriation of real estate can be made by a corporation. How appropriation of prop- erty of a minor, idiot, im- Itecile or insane person may be made. What the petition for such appropriation must con- tain, and in what court the same must be filed. In what county the petition must be filed. Summons — Its command and service thereof. Service by publication. Jurisdictional questions to be first determined. Jurors to be drawn from the box and venire issued. Who entitled to a separate trial, and how trial con- ducted. The court may allow any amendment. Time of trial, adjournments and discharge of juries. How panel to be filled — -Ju- rors to l>e interrogated by court. 018 619 TITLE TRANSFERRED BY CONDEMNATION PROCEEDINGS. § 502 549. examined 550 is partly to be ap- SECTIO.N. 534. Challenges to jurors, and how vacancies in jury box filled. The oath to be administered to jury. The form of writ, to sheriff. .Judge must deliver certain copies to sheriff, Witnesses may b« before jury. When a structure on land sought propriated. Verdict, and confirmation thereof. When and how corporation may have possession. When and how corporation may abandon proceeding. When action may be brought for costs and expenses. New trial — P rocee dings thereon. Either party may file a peti- tion in error. Proceedings in the common pleas on error. How school land may be ap- propriated. 535. 53(i. 537. 538. 53!). 540. 541. 542. 543. 544. 545. 546. 547. SECTION. 548. When proceedings to appro- priate private property may lie commenced in court of common pleas. Court to appoint attorney for party absent or under dis- ability. Conflicting claims not to be passed upon. Put to be adjudicated in the common pleas. Such proceeding a civil action. Unfinished roadbed of railroad company may be condemned. Proceedings in such case. In what couit such proceed- ings may be commenced. Proceedings when land is held without agreement by a corporation. Summons in such case — Judg- ment and execution. When injunction may issue against corporation. Fees of witnesses, officers and probate judge, and how costs adjudged. When costs may be appor- tioned. When this chapter d^es not apply. 551. 552. 553. 554. 555. 556. 557. 558. 559. 560. 561. Sec. 502. Constitutional provisions as to the inviolability of private property. The Federal Constitution provides that private property shall not be taken for public use, without just compensation. 1 The Constitution of this State provides that private property shall ever be held inviolate but subservient to the public wel- fare. When taken in time of war or other public exigency im- peratively requiring its immediate seizure or for the purpose of making or repairing roads, which shall be open to the public, without charge, a compensation shall be made to the owner, in money, and in all other cases where private property shall be taken for public use, a compensation therefor must first be made in money, or first secured by a deposit of money; and i Article V of the Amendments to the U. S. Constitution. §§503,504 MERWINE ONT REAL ACTIONS. 620 such compensation must be assessed by a jury without deduc- tion from the benefit to any property by the owner. 2 Sec. 503. Necessity for the right of eminent domain. This question confronts all government at the threshold of its existence. Without it there can be no government ; for no place could be found for the exercise of the legislative, judicial or executive powers of government, nor could there be public ways for the exercise of social and commercial relations, nor even fortifications for the common defense. 3 The power therefore exists in the sovereignty of the people, independent of any constitutional provisions and it is a political rather than a judicial power that exercises the right. 4 The statutes fully set forth the manner of procedure in this State. The prescribed limits of this book forbid more of a discussion than to give the statutes with brief annotations. Sec. 504. Power of municipalities to appropriate property fcr public uses. All municipal corporations shall have the following special powers, which shall be exercised in the manner hereinafter provided : 1st, to appropriate property for public purposes. 5 2 See. 10, Article I, Constitution of Ohio. 3 Sandusky v. Wilbur, 7 O. S. 486: Mansfield v. Barlett, 05 O. S. 451. * Emig v. Com., 5 N. P. 471: Railroad v. Sundry Persons, 7 W. L. J. 265; Giesy V. Cincinnati, 4 O. S. 326. sGen'l Code. §3677 (R. S. §1536-102). As to the right to take and hold property until a jury ha-- assessed compensation, see Gar- vin v. Columbus, 5 N. P. 237. The power of eminent domain must be strictly construed. Harbick v. To- ledo, mi s. 210. Except in case of bad faith or abuse of power, courts can not restrain amount of bind to be taken. Iron, etc.. v. [ronton, 19 O. S. 299; Giesy v. Cin- cinnati, j O. S. :sns. in an action for damages for land already ap- propriated, the same rule applies as where compensation is assessed by a jury. Dodson v. Cincinnati, 34 O. S. 276. Owner must be com- pensated by an assessment of dam- ages made by a jury where a mu- nicipality widens a street. Youngs- town v. Moore, — 0. S. — . Where a private sewer is taken for public purposes, a jury must award com- pensation. McDonald v. Cincinnati, 4 N. P. 253. The amount of dam- ages awarded in an appropriation proceeding may be assessed hack by the front foot upon abutting prop- erty. Norwood v. Ogden, 15 C. C. 530. For cases on evidence admis- sible as to damages, see Gibson v. Norwalk, 13 C. C. 431: Lorain v. Lenning, 3 O. D. 624; as to whether special benefits may be allowed, see Little, etc., v. Collett, 6 0. S. 183. 621 TITLE TRANSFERRED BY CONDEMNATION PROCEEDINGS. § 505 Sec. 505. For what purposes a municipality may appropriate property. All municipal corporations have power to appropriate, enter upon and hold real estate within their corporation limits, for the following purpose : (a) For opening, widening, straight- ening, changing the grade of and extending the streets and all o'.her public places, and for this purpose the corporation may appropriate the right of way across railway tracks and lands held by railway companies where such appropriation will not unnecessarily interfere with the reasonable use of the property so crossed by such improvement ; and for obtaining material for the improvement of streets and for other public places, (b) For parks, park entrances, boulevards, market places, and children's play grounds, (c) For public halls and offices, and for all buildings and structures required for the use of any department, (d) For prisons, work houses, houses of refuge and correction and farm schools. (e) For hospitals, pest houses, reformatories, crematories, and cemeteries, (f) For levees, wharves and landings. (g) For bridges, aqueducts, viaducts and approaches thereto, (h) For libraries, university sites and grounds for the same, (i) For constructing, opening, excavating, improving or extending any canal or water "course located in whole or in part within the limits of the corporation, or adjacent and contiguous thereto, and wmich is not owned in whole or in part by the State, or by a company or individual authorized by law to make such improvements, (j) For sewers, drains, ditches, public urinals, bath houses, water closets, and sewage and garbage disposal plants and farms, (k) For water- works, natural and artificial gas and electric lighting, heating and power plants, and for supplying the products thereof. 6 Sec. 506. In what cases property may be appropriated outside a municipality — Proviso as to cemeteries. In the appropriation of property for any of the purposes named in the preceding section, the corporation may, whenever the same is reasonably necessary, acquire property outside the limits of the corporation; but no lands can be appropriated or obtained for public cemeteries within two hundred yards of any oGen'l Code, §3677 (R. S. M53G-103). §§ 507, 508 MERWINE ON REAL ACTIONS. 622 dwelling house, without the consent, in writing, of the owner of the tract of land on which such dwelling house may be situated. 7 Sec. 507. The resolution of council and notice of intent to appropriate. Whenever it is deemed necessary to appropriate property, council must pass the resolution, declaring such intent, defining the purpose of the appropriation, and setting forth a pertinent description of the land desired to be appropriated; and for waterworks purposes the council may appropriate such prop- erty as it may determine to be necessary ; and immediately upon passage of such resolution, declaring such intention, for which but one reading is necessary, the mayor is required to cause written notices thereof to be given to the owner, person in possession of, or who have an interest of record in every piece of property sought to be appropriated, or to his authorized agent, and such notice must be served by a person designated for the purpose, and return made in the manner provided by law for the service and return of summons in civil actions, and in case said owner, persons or other agents can not be found, notice must be given by publication once a week for three consecutive w r eeks in a newspaper of general circulation in the corpora- tion; and council may thereupon cause an ordinance by the vote of two-thirds of all members elected thereto directing said appropriation to proceed. 8 Sec. 508. In what courts the application may be made. Upon passage of the aforesaid ordinance, the solicitor is required to make application to the court of common pleas or to a judge thereof in vacation, to the probate court, or to an insolvency court in the county in which the land sought to be taken is located, which application must describe as correctly as 7Gen'l Code, § Ml?, (R. S. § 2642, see Krumberg v. Cincinnati, §1536-104). Nee No. 388 and fol- 29 O. Gen'l Code, §69; Tyler v. Co- lowing for form of petition and all lumbus, (! ('. C. 224; Caldwell v. writ-, orders, processes, decrees, Carthage, 4!i O. S. ;i.'!4. Recommen- verdicts ami procedure in condem- dation of board of improvements is nation by a municipality of prop- not necessary to |>ass ordinance, erty for public uses. Gamble v. Wise, 3 W. 1.. P». 430. sGen'l (ode, J 3679 (P. P. As to question of notice to owner, § 1536-105. Whether preliminary sec Hay v. Stimmel, 7 O. D. 380; ordinance is necessary under R. S. Firmer v. Cincinnati, 4 N. P. 182. t>23 TITLE TRANSFERRED BY CONDEMNATION PROCEEDINGS. § 509 possible the land to be appropriated, the object proposed, and the name of the owner of each lot or parcel thereof. 9 Sec. 509. The service of notice to owners of property. Notice of the rime and place of such application must be given in the ordinary manner of serving- legal process to all agencies, owners or agents of owners resident in the State, whose place of residence is known, and to all others by publish- ing the substance of the application, with a statement of the time and place at which it is to be made, once a week for three weeks next preceding the time of the application in some news- paper of general circulation in the county. 10 Sec. 510. The court must fix time for the inquiry. If it appears that such notice has been served five days before the time of application or has been duly published, or that such notice has been waived, the court must set a time for the assessment of compensation by a jury ; provided, that the same may be made at a special term of court, and the jury must be drawn and trial proceed as in other civil actions. 11 Sec. 511. A view of the premises may be required. A view of the premises must be ordered when desired by the jury or demanded by any party to the proceedings. 12 Sec. 512. Guardian ad litem appointed, when. If, at the time of the application, it appear that any of the owners of the property sought to be taken are infants or insane, and that they have no guardian, a guardian ad litem must be appointed in their behalf; and no delay in the pro- ceedings shall be occasioned by doubt as to the ownership of any property, or as to the interests of the respective owners, but in such cases the court must require a deposit of the money » Gen'l Code, §3081 (R. S. tion will not invalidate as against § 1536-106). collateral attack. Ry. v. Belle Cen iMien'I Code. §3082 (R. R. ter. 48 O. S. 273. Notice to a mort- § 1536-107). Where owner of prop- »apee is necessary. Harrison v. Sa- erty dies during the pendency (if bina, 1 C. C. 40. the action to condemn, the action i'Gen'1 Code. §3083 ( R. S. should he revived in the same man- § 1530-108). ner as in other cases. Rv. v. Rohm, isGen'l Code,. §3084 (R. 8. 29 O. S. 033. Service by publica- §1530-109). §§513,514 MERWINE ON REAL ACTIONS. 024 allowed as compensation for the whole property or the part in dispute ; and in all cases as soon as the corporation has paid the compensation assessed, or secured its payment by a deposit of money under the order of the court, possession of the property may be taken. 13 Sec. 513. How jury to return assessment — Manner of conduct- ing the case. The assessment must be in writing, signed by the jury, and must be so made that the amount payable to the owners of each lot or parcel of land may be ascertained. The owners have the right to open and close the case. When a building or structure is situated partly upon the land to be appropriated and partly upon adjoining land, and such structure can not be divided upon a line between such lands, without manifest in- jury, the jury in assessing compensation to any owner of the land, is required to assess the value of the same, exclusive of the structure, and make a separate estimate of the value of the structure; the owner of the structure may elect to retain the same and remove it, or to accept the value thereof as estimated by the jury ; if he fails to make such election within ten days from the final determination of the cause, he will be deemed to have elected to accept the value of the structure as fixed by the jury. 14 Sec. 514. Verdict in whole or in part. The jury must be sworn to make the whole inquiry and assessment, but may return a verdict as to part and be dis- charged as to the rest, in the discretion of the court ; and in case a jury is discharged from rendering a verdict in wdiole or in part, another must be drawn and impaneled at the earliest convenient time, who is required to make the whole inquiry and assessment, or the part not made. 15 '-Cen'l Code. §3684 (R. S. § 1536-10!)). ^Gen'l Code, §3684 (R. S. § 1536-109). Formerly, corpora- tions had the right to open and close the case. Neff v. Cincinnati, 32 0. S. 215. As to the measure and elements of compensation, see Foote v. Cincinnati. 11 0. 408 Oiesv v. Cincinnati, 4 0. S. 309 Cleveland, etc.. v. Ball. 5 0. S. 568 Little v. Collett, 6 0. S. 183: Hatch v. Ry., 18 O. S. 92; Goodin v. Canal. 18 0. S. 109; Railroad v. Zinn, 18 O. S. 417. As to opinion of witness as to value of the land, see Ibid. Witness can not give opinion as to amount of damage. Atlantic v. Campbell. 4 0. S. 583. "Gen'l Code, §3689 (R. S. § 1536-110). 625 TITLE TRANSFERRED BY CONDEMNATION PROCEEDINGS. § 515 Sec. 515. Orders as to payment or deposit of assessment — Order as to interpleader. The court must make such orders as to payment, deposit or distribution of the amount assessed as may seem proper, may require adverse claimants to all or any part of the money or property to interplead and fully determine their rights in the same proceeding, and may direct the time and manner in which possession of the property condemned must he taken or de- livered, and may. if necessary, enforce any order giving pos- session. 10 Sec. 516. The manner in which costs are assessed and paid. The costs of the inquiry and assessment must be paid by the corporation, and all other costs taxed as the court may direct ; provided, that at or after the time of making the application the corporation may offer to confess judgment for an amount to be stated, and the costs then made, in favor of any owner who in any manner enters appearance or upon whom or whose agent personal service may be made ; where- upon if such owner refuse to accept such offer, and on the trial does not recover more, he will be required to pay all costs accruing after the offer, and an offer so made shall be governed by the provisions of Gen'l Code, § 11395 (R. S. § 5142). 17 Sec. 517. How interested parties may give bond in such cases. Any person may, before or after the passage of an ordinance for opening a street or other public highway, execute his bond payable to the corporation to the acceptance of council, con- ditioned for the payment of all damage which may be assessed by the jury ; and such bond will be good in law, and if such person pay or deposit according to the order of the court, then such street or other highway must be opened ; or the corpora- tion may at its discretion make such payment or deposit, and collect by law the amount of such damages of such person or his sureties. 18 i« Gen'l Code, §3690 (R. S. is Gen'l Code, §3694 (R. S. §1536-111). §1536-113). iUien'1 Code, §3693 (R. S. § 1530-112). §§518,519 MERWINE ON REAL ACTIONS. 626 Sec. 518. Review of proceedings — Appeal to court of common pleas. The municipal corporation, or the owner of any property, the value of which has been assessed as herein provided, has the right to prosecute error as in other civil actions; provided that the trial court may, upon proper terms, sustain the execu- tion of any order; but in all cases where the municipal corpora- tion pays or deposits the compensation and costs, the right to take and use the property condemned can not be affected by any such review. Where the proceeding is had in the probate court or in the insolvency court, any party interested in the inquiry and assessment may take an appeal to the court of common pleas; and thereupon the same proceedings must be had as if the application had been originally made in that court, except that the corporation can not be required to give notice of its appli- cation, and the inquiry and assessment must be limited to the case of the party taking the appeal; and the court must make such orders for the payment of the costs accruing upon the appeal as may seem equitable and just. 19 Sec. 519. Effect of neglect to pay or take possession in six months. When a municipal corporation makes an appropriation of property, and fails to pay for or take possession of the same within six months after the assessment of compensation shall have been made, its right to make such appropriation on the terms of the assessment so made will cease and determine, and any lands so appropriated will be relieved from all encumbrance on account of any of the proceedings in such case and a judg- ment or order of the court directing such assessment to be paid shall cease to be of any effect, except as to the cos^s adjudged against the corporation; and upon motion of any defendant, said costs may be relaxed and a reasonable attorney's fee be paid to the attorney of such defendant, which, together with any other proper expense incurred by such defendant, may be included in such costs. 20 i»Gen'l Code, §3695 (R. S. 20 Gen'l Code, §3697 (R. S. §1530-114). §1536-115). 627 TITLE TRANSFERRED BY CONDEMNATION PROCEEDINGS. § 520 Sec. 520. What law governs appropriation of private property by corporations. Appropriations of private property by corporations must be made according to the provisions of title 2, chapter 8, Revised Statutes of Ohio. 21 Sec. 521. Probate has exclusive jurisdiction to make inquest for amount of compensation to owner in appropriation cases. The probate court has exclusive jurisdiction to make in- quests of the amount of compensation to be made by owners of real estate when appropriated by any corporation legally au- thorized to make such appropriation. 22 Sec. 522. In what cases appropriation of real estate can be made by a corporation. Appropriation can only be made when the corporation is unable to agree with the owner or his guardian or trustee as to the compensation to be paid for the property, or easement or interest therein, sought to be appropriated, or when the owner is incapable of contracting in person or by agent, and has no guardian or trustee, or is unknown, or his residence is beyond the State, or unknown. 23 Sec. 523. How appropriation of property of a minor, idiot, imbecile or insane person may be made. Whenever under the chapter relating to appropriation of private property by corporations, the property of any minor, idiot, imbecile or insane person, or any easement or interest therein is sought to be appropriated by a corporation, and there is a legally appointed guardian of the person and estate or of the estates or trustee of such minor, idiot, imbecile or insane person, and the said guardian has agreed with said corporation si Gen'l Code. §11038 (R. S. jail, etc.. see Gen'l Cod-. §2446 §0414). Under this section the ap- (R. S. §879). As to appropriation propriationa provided for under of property for sas or el ctric § 3440 may he made. Street Ey. works, see Gen'l Code. § 3990 ( R. v. Street Ry., 50 O. S. 603. Gen'! S. § 1536-576). Code, § 10095 et seq. (R. S. §3573). -•-'(Jen'] Code §10400 (11. S. provides for appropriation of land §5-24). by cemetery association. As to ap- -* Gen'l Code, §11039 (R. S. propriation of land for court house, §6415). § 52*1 MERWINE ON REAL ACTIONS. 628 upon the amount of compensation to be paid for such property, easement, or interest therein, he may file with the probate court of the county wherein said property is situated, a written application for authority to convey to said corporation the said property or interest ; which application must fully describe the property, right, easement or interest therein, sought to be conveyed, and must fully set out the price agreed to be paid for the same. The probate judge must order said guardian to give such notice as said judge may deem reasonable, to the said ward, of the filing of the said application, and of the time set for the hearing of the same. At the time set for the hearing of said application, if the judge finds that notice was given as ^ordered, of the time set for the hearing of the same, and that the price to be paid is reasonable and just, and that the said conveyance would be to the best interest of said ward, he is required to order the said guardian to make and execute a deed to said corporation for said property or interest upon the payment of the said price agreed upon by said guardian and said corporation. 24 Sec. 524. What the petition for such appropriation must con- tain and in what court the same must be filed. In any such case the corporation may file with the probate judge a petition, verified as in a civil action, containing a specific description of each parcel of property, interest or right, within the county, sought to be appropriated, the work, if auy, to be constructed thereon, the use to which the same is to be applied, the necessity for the appropriation, the name of the owner of each parcel, if known, or if not known, a statement of that fact, the names of all persons having or claiming an interest, legal or equitable, in the property, so far as the same can be ascertained, and a prayer for the appropriation of the prop- erty.'-' s+Olen'l Code, §11030 (R. S. The legal record existence of the § 04 1 -"> i . corporation must l>e shown before 25 Gen'l Code, §11042 (R. S. an appropriation of property can be §0416). See No. 408 for form of made for it. Railroad v. Sullivant, petition, notice, summons, return. o O. S. 276: Atkinson v. Railroad, orders, writs, judgments, verdict 15 O. S. 21; Powers v. Railroad, 33 and procedure. The probate court O. S. 420. As to what facts the has only such jurisdiction as is petition must set forth, see In re expressly conferred by statute. Cieorge, 5 C. C. 98. Railroad v. Marshall, 11 O. S. 407. 629 TITLE TRANSFERRED BY CONDEMNATION PROCEEDINGS. § 525 Sec. 525. In what county the petition must be filed. The petition may include one or more of the parcels of property, rights, or interest in the county in which it is filed ; and when any such parcel, right or interest is situated in two or more counties, the petition may be filed in either of the counties in which the owner is resident, and if no owner is resident therein, it may be filed in either. 20 Sec. 526. Summons — Its command, and service thereof. Upon the filing of a precipe therefor, the probate judge must issue summons for the owners and persons named in the peti- tion as residents of the State and having an interest, which may be directed to the sheriff of any county, and must com- mand him to notify the persons named therein of the filing of the petition, and to appear thereto at a time to be fixed by the judge, and named therein, not less than five or more than fifteen days from the date thereof, and which must be served and returned as in a civil action. When a writ is returned "not summoned," other writs may be issued, until the parties are duly summoned. 27 Sec. 527. Service by publication. When a person having an interest is unknown, or his resi- dence is beyond the State, or unknown, the corporation may make service by publication against him, by publishing in a newspaper of general circulation in the county where the peti- tion is filed, for four consecutive weeks, a notice containing a summary statement of the object and prayer of the petition, so far as it relates to the property of the person thus to be notified, the court in which it is filed, and the time Avhen such person is to appear thereto, not less than ten or more than twenty days after the last publication; and the fact of publi- cation may be proved by the affidavit of any person knowing the same. 28 Sec. 528. Jurisdictional questions to be first determined. On the day named in any summons first served, or publication first completed, the probate judge is required to hear and seGen'l Code, §11043 (R. S. 27 Gen'l Code, §11044 (R. S. §6417). As to the rights of each §6418). of the defendants to a separate jury, 28 Gen'l Code, §11045 (R. S. see Gesy v. Railroad, 4 O. S. 308.* §6419). §§ 529-531 MERWINE ON REAL ACTIONS. 630 determine the questions of the existence of the corporation, its right to make the appropriation, its inability to agree with the owner, and the necessity for the appropriation. Upon these questions the burden of proof will be upon the corporation, and any interested person will be heard. 29 Sec. £29. Jurors to be drawn from the box, and venire issued. If the judge determines these questions for the corporation, as to any or all of the property, and persons interested therein, he must issue an order to the clerk and sheriff to draw sixteen names from the jury box, as in other cases, and within two days after the receipt of the same, they must execute the order, and the clerks are required forthwith to return it to the probate judge, with a list of the names drawn indorsed thereon ; and the judge must issue to the sheriff a venire for the jurors so drawn to attend at his office, at a time to be fixed by him. and named in the writ, not exceeding ten days from the date thereof, which shall be served and returned as in other cases. 30 Sec 530. Who entitled to a separate trial, and how trial con- ducted. The owners of each separate parcel, right or interest, are entitled to a separate trial by jury, verdict and judgment. They shall hold affirmative on the trial, which shall be con- ducted and evidence shall be admitted, and bills of exception may be taken, as provided in civil actions. 31 Sec. 531. The court may allow any amendment. The court may amend any defect or informality in any of the proceedings authorized or required by this chapter, or cause Dew parties to be added, and direct such further notice to be given to any party in interest as it deems proper. 3 - 29Gen'l (o.lc. §11046 (R. S. so ( fen'1 Code, §11047 ( R. S. § (1420). hi re George, 5 C. C. 207; § (5421). Kramer v. Toledo, 53 O. S. 436. : » Gen'l Code, §11048 (R. S. The decision of the court in favor §6422). of the corporation will not bar the 32 Gen'l Code, §11049 ( R. S. ri^'lit of tlio State to test its power §6423). I>v quo warranto. State v. Salem, etc.. 5 C. C 58. 631 TITLE TRANSFERRED BY CONDEMNATION PROCEEDINGS. § 532 Sec. 532. Time of trial, adjournments, and discharge of juries. The court may direct the order and fix the time of the several trials; may adjourn or continue any trial for the pur- pose of obtaining proper service upon any property owner, or when deemed necessary for the proper and convenient trial of the several cases; and may discharge any jury, and cause other juries to be impaneled, as provided in this chapter. 3 '' Sec. 533. How panel to be filled — Jurors to be interrogated by court. When, by reason of non-attendance, sickness or other cause, any of the sixteen persons are not present and in condition to serve as jurors, the judge must order the sheriff to fill the . vacancies with talesmen; and when the list of sixteen is full, the judge must call upon each separately, beginning with the first named on the list, to take his place in the jury box, and must personally inquire of each, as called, whether he is in- terested in any way in any of the property, rights, or interests sought to be appropriated, or in the corporation which filed the petition, either as owner, stockholder, agent, attorney or otherwise; and if such person answer in the affirmative, or if it be shown to the judge, by satisfactory evidence, that he is so interested, he must be excused from serving on the jury, and the next person on the list must be called and interrogated in like manner; and if the list of sixteen be exhausted before a proper jury of twelve men is taken and accepted therefrom, the judge is required to order the sheriff to fill the remaining vacancies in the jury box required to make up the number of twelve, with talesmen, who must be interrogated as herein above provided. 34 Sec. 534. Challenges to jurors, and how vacancies in jury box filled. When the jury box is filled with twelve disinterested jurors, the owners of the property which is the subject of the trial, jointly, and the petitioner, each have the right to two peremp- tory challenges, and to challenge for cause; and all vacancies ' x arising in the jury from challenge or otherwise, must be filled ssGen'l Code, §11050 (R. S. 34 G«n'l Code, §11051 (R. S. §6424). § 6425). §§ 535-537 MERWINE ON REAL ACTIONS. 632 by talesmen having the qualifications prescribed in the last section, to be ascertained as therein provided. 35 Sec. 535. The oath to be administered to jury. When the jury is filled, the probate judge must administer to them the following oath: "You, and each of you, do sol- emnly swear that you will justly and impartially assess, ac- cording to your best judgment, the amount of compensation due to the proper owners in the cases which will be brought before you in this proceeding, by reason of the appropriation of their property described in the petition, to the use of (here name the corporation), in the proceeding now pending, irre- spective of any benefit from any improvement proposed by such corporation; and you do further swear that you will, in assessing any damages that may occur to such property owners by reason of the appropriation, other than the compensation, further ascertain how much less valuable the remaining portion of said property will be in consequence of such appropriation. This you swear as you shall answer to God." 36 Sec. 536. The form of writ to sheriff. The probate judge may, upon motion of either party, issue the following writ to the sheriff, to-wit : 'To the sheriff of County: You are hereby com- manded to conduct the twelve jurors named in the panel to this writ annexed, to view the property or premises sought to be appropriated by (here state the name of the corporation), and owned by (here state the name of the owner or owners), on . the day of , then and there to view the premises or property aforesaid (in the presence of A. B. on the part of the corporation aforesaid), and C. D. on the part of the owner, appointed by this court, on the day of , A. D. ." The writ shall be signed by the probate judge, and certified under his seal of office. 37 Sec. 537. Judge must deliver certain copies to sheriff. The judge must also deliver to the sheriff a copy of that part of the petition containing a separate description of each 85 Gen'J Code, §11052 (R. S. 37 Gen'l Code, §11054 (R. S. 5 6426). §G428). 8« Gen'l Code, §11053 (R. S. §6427). 633 TITLE TRANSFERRED BY CONDEMNATION PROCEEDINGS. § 538 parcel of property, and rights or interests sought to be appro- priated within the county, which the jury is required to view; he may appoint, to be present at the view, the two persons named in the writ ; and the sheriff who is to execute the writ is required by a special return upon the same, to certify under his hand that the view had been made according to the command thereof. The expenses of taking the view must be raxed in the bill of costs, and no evidence can be given on either side at the taking thereof. 38 Sec. 538. Witnesses may be examined before jury. Witnesses may be examined before tbe jury after its return to the court ; but if more than three witnesses be examined by either party on the same point in the same case, the judge may tax the costs of such additional witnesses to the party calling them. 39 Sec. 539. When a structure is partly on land sought to be appropriated. When a building or other structure is situated partly upon land sought to be appropriated, and partly upon adjoining land, and such structure can not be divided upon the line be- tween such two tracts of lands without manifest injury, the jury, in assessing the compensation to any owner of the lands, is required to assess the value of the same exclusive of the struc- ture, and make a separate estimate of the value of the structure ; the owner of the structure may elect to retain the ownership of the same, and to remove it, or accept the value thereof as esti- mated by the jury; if he fail to make such election within ten days from the date of the report of the jury, or within ten days from the termination of the cause in any higher court to which it may be taken, he will be deemed to have elected to retain and remove the structure, but if he elect to accept the value of the structure, the title thereto will vest in the corpora- tion making the appropriation, which shall have the right to ssGen'l Code, §11055 (R. S. Longworth. Witness can not give §6429). opinion as to amount of damages. s»Gen'l Code, §11056 (R. S. Railroad v. Ball, 5 0. S. 568. §6430). Owner may prove that Owner a competent witness on his prior to the proceeding land was own behalf. Railroad v. Campbell, laid out in town lots. Railroad v. 4 O. S. 583. §§ 540-542 MERWINE ON REAL ACTIONS. 634 enter upon the land for the purpose of removing the structure therefrom. 40 Sec. 540. Verdict, and confirmation thereof. The jury is required to render its verdict in writing, signed by the foreman, to the judge, who must cause it to be entered of record ; and unless for good cause shown, upon motion to be filed within ten days after the verdict is rendered, a new trial granted, the judge must enter a judgment confirming such verdict. 41 Sec. 541. When and how corporation may have possession. Upon payment to the party entitled thereto, or deposit with the probate judge of the amount of the verdict and such costs as have lawfully accrued in the case up to the time against the corporation, the corporation will be entitled to take pos- session of, and hold the property, rights, or interest so appro- priated, for the uses and purposes for which the appropriation was sought, as set forth in the petition, and the judge must enter of record an order to that effect, and if necessary, proper process shall be issued to place the corporation in possession thereof. 4 - Sec. 542. When and how corporation may abandon proceeding. The corporation may abandon any case or proceeding after paying into court the amount of the defendant's costs, ex- penses and attorney fees, as found by the court. If the cor- poration fail in any case to make payment or deposit, as provided in the preceding section, within thirty days after con- firmation of the verdict, the probate judge, on motion of the party entitled to such payment, to be filed within ten days after the expiration of said thirty days, must enter an order direct- ing the corporation to make such payment or deposit within thirty days after the date of such order; and unless such cor- poration, within said thirty days, make such payment or de- 40Gen'l Code, 111057 (R. S. « Oen'l Code, §11050 (R. S. §0431). Railroad v. Longworth, 30 §043.3). A judgment must be cn- O. S. IDS; Ward v. ilriilgc Co., tered confirming the verdict before O. S. 15; Railroad v. Ball, 5 O. S. the corporation can take possession. 568. Wagner v. Railway, 38 O. S. 32. »' Gen'l Cod«, § 11058 ( R. S. §0432). 635 TITLE TRANSFERRED BY CONDEMNATION PROCEEDINGS. § 543 posit, it shall be held and considered to have thereby aban- doned the property, rights, or interest so appropriated, and all claims thereon under its proceeding, and the judge must issue an order to that effect; the judge must also enter a judgment against the corporation, and in favor of the party entitled to such payment, for such amount of expenses, includ- ing time spent and attorney fees incurred by him in the pro- ceeding, as the court, upon the evidence offered in that behalf, deems just and reasonable, for which execution may be issued against the corporation ; and the directors of the corporation, individually, will be liable upon such judgment, and may be made parties thereto by action. 43 Sec. 543. When action may be brought for costs and expenses. If such judgment be not satisfied within thirty days after the rendition thereof, or if the party entitled thereto be not satisfied with the amount thereof, such party shall have a right (of action) against the petitioner for his expenses afore- said, including time spent and attorney fees, and also for his expenses, including reasonable attorney fees, incurred in pros- ecuting such action ; but the action must be brought within six months after the rendition of the judgment in the probate court. 44 Sec. 544. New trial — Proceedings thereon. A new trial shall be granted for cause only, shall take place in the same court where the first trial was had, and shall be conducted in accordance with the provisions of this chapter for the first trial, so far as they are applicable; and upon the granting of the motion for a new trial, if the amount of the first verdict had been paid into the court, the probate judge shall retain the same until the final termination of the second trial; but if upon the new trial the verdict of the jury exceed the amount of the first verdict, the corporation shall pay the amount of the first verdict, together with the excess, to the owner of the property; and if the verdict upon the second trial be less than that of the first, the probate judge shall repay to the corporation the difference. If a new trial be granted at the instance of the owner of the property, and the verdict « On'l Code, §11061 (R. S. "Gen'l Code, §11061 (R. R. §6435). §6435). §§ 545-547 MERWINE ON REAL ACTIONS. 636 of the jury be the same or less in amount than that first ren- dered, the owner shall pay the whole costs of the second trial; and if it be more than that first rendered, the costs of the second trial shall be paid by the corporation. 45 Sec 545. Either party may file a petition in error. Either party may file a petition in error in the court of common pleas of the proper county, within thirty days from the rendition of the final judgment in the probate court, and the proceedings in error must be conducted as in civil actions; but the corporation may, on the rendition of the final judgment in the probate court, pay into said court the amount of the judgment for compensation and costs therein rendered, and proceed to enter upon and appropriate the property, notwith- standing the pendency of the proceedings in error. 46 Sec. 546. Proceedings in the common pleas on error. If the court of common pleas, upon the hearing of the cause, affirm the judgment of the probate court, all the costs in the court of common pleas must be paid by the plaintiff in error ; and if it reverse such judgment, it must retain the cause for trial and final judgment, as in other cases, which trial shall be had at the term of reversal of the judgment, unless for good cause shown by either party the court grant a continuance; and on the trial of the cause in the court of common pleas, the same inquiry shall be made as to the interest of the jurors, and the same oath shall be administered to the jury, as is provided for in Gen'l Code, §§11050, 11053 (R. S. §§6425 and 6427). 47 Sec. 547 How school la'nd may be appropriated. When a railroad company, incorporated in this State, has located its railroad through any part of reserved sections twenty-nine or sixteen, for school purposes, and such lands remain unsold, or through any town lot or parcel of ground ■i--C,on] Code, §11(162 (R. S. ^ Gen'l Code, §11003, et seq. §6436). (R. S. §6437). *e Gen'l Code, §11063 (R. S. §6437). 637 TITLE TRANSFERRED BY CONDEMNATION PROCEEDINGS. § 548 used for or devoted to school purposes, it ma}' appropriate so much of such land or lots as may be necessary for the purposes aforesaid; and service of the summon made on such trustees or school officers as have possession or control of the lands, will have the some force and effect as service in any other case on owners of land sought to be appropriated. The money arising from such appropriation must be disposed of by such trustees or school officers in accordance with law. 48 Sec. 548. When proceedings to appropriate private property- may be commenced in court of common pleas. When the probate judge is interested, either as a stockholder, director or otherwise, in a corporation seeking to appropriate private property to its use. or if before filing the petition, it is made to appear to the satisfaction of a judge of the court of common pleas of the county wherein the action is sought to be brought, that such probate judge is interested either as owner or otherwise in the property sought to be appropriated, or by reason of sickness, absence or other incapacity is and will be unable to preside at the trial, the proceedings authorized by this chapter may be commenced in the court of common pleas of the county; and in that case the proceedings must conform in all respects, so far as applicable, to the provisions of this chapter, and all the powers conferred and duties imposed there- by upon the probate court, and will devolve upon the court of common pleas ; and said court may make such orders and direct such proceedings to be had as may be necessary to do full justice between the parties according to the true spirit and intent of this chapter; and after final judgment the corporation may, on depositing the amount of the judgment and costs assessed in said court with the clerk thereof, be entitled to enter into possession of the property sought to be appro- priated. 49 Sec. 549. Court to appoint attorney for party absent or under disability. "When a party in interest is unknown, or his residence is unknown, and when service has been made by publication, and ^On"l Code, §11007 (R. S. <» Gen'l Code, §11008 (R. S. §0439). §6440). §§550,551 MERWINE ON REAL ACTIONS. 638 the party has not appeared in the proceedings by agent or attorney, or when such party in interest is under any legal disability, and has no legal guardian or trustee within the county where the action is brought, the court must appoint some competent attorney to attend upon the proceedings, and protect the rights and interests of such party: and the court must fix the amount of the fees of the attorney for such service, which shall be payable out of any money paid on the judgment rendered in such case for property appropriated." Sec. 550. Conflicting claims not to be passed upon. When there are diverse or conflicting claims, legal or equit- able, to the real estate, or any interest therein, sought to be 'appropriated under the provisions of this chapter, the jury or court must not pass upon the same in the proceedings for appropriation, but such claims shall be reserved for adjudica- tion as hereinafter provided. 51 Sec. 551. But to be adjudicated in the common pleas. Upon the payment of the money into the court by the cor- poration, a party claiming a legal or equitable interest in the property, or the money arising therefrom by such appropria- tion, may file his petition in the court of common pleas of the proper county, making the other claimants to the property or money, parties thereto, setting forth the facts on which the claim is founded, the fact of the appropriation of the property, the amount of money so paid in therefor, and such other facts as are proper to enable the court to hear and determine the matter between the claimants; and the court must forthwith ap- point some master of the court, or other suitable person selected by the parties, to hold and safely keep such fund, or invest the same in the manner the court shall direct, after hearing the par- ties; and such fund shall thencefortli represent the land, and the interests therein, and be subject to the control of the court having jurisdiction of the case, by orders entered in the action, according to the rights of the parties to the land or fund, as Prom lime to time the court may determine/' 2 fipn'l Code, §11071 (R. S. •■- Gen'l Code, §11073 (R. S. 8(U41). § 0443). 5i Gen'l Code § 11072 (R. S. § 1)442). 639 TITLE TRANSFERRED BY CONDEMNATION PROCEEDINGS. § 552 Sec. 552. Such proceeding a civil action. Such proceeding in the court of common pleas will be con- sidered and held to be a civil action ; and the conflicting claims of parties to the fund aforesaid will be determined by the court, or by a jury trial, according as the claim is equitable or legal, in the same manner as if the land had not been converted into money. 53 Sec. 553. Unfinished roadbed of railroad company may be condemned. Any railroad corporation of this State may condemn and appropriate to its own use the interest and easement in and quiet title to any unfinished roadbed or part thereof lying within the State, and on the line of its proposed road, owned or claimed by any other railroad company or companies, per- son or persons, partnership or corporation, when such roadbed or part thereof has remained, or hereafter remains in an un- finished condition, and without having the ties and iron placed, and continued thereon for the period of five years or more immediately preceding the commencement of proceedings to condemn or appropriate the same as herein authorized, and every such company or companies, person or persons, partner- ship or corporation, is required to be made a party defendant to such proceedings to condemn or appropriate the same, and will be required to answer therein, setting forth fully its or their title to or interest in such roadbed or part thereof sought to be appropriated or condemned, if any it or they may claim, to which answer the plaintiff must plead issuably, unless it admit the validity of the defendant's claim, and in such case, if such party defendant be a non-resident of this State, or a for- eign corporation, service of summons may be made by publi- cation, under subdivision 8 of Gen'l Code, § 11296 (R. S. §5048), and that the terms company or companies, as used in this chapter, shall be held to embrace also person or persons, partnership or corporation as used in this section/' 4 Sec. 554. Proceedings in such case. When it is determined by the court, upon issue of law, or by the jury upon issue of fact, or by admission of the pleadings, or 63 Gen'] Code, §11075 (R. S. s^Gen'l Code, §1107(5 (R. S. §(5444). §6445). § 555 MERWINE ON REAL ACTIONS. 640 by reason of failure to plead that any such company asserting such ownership or claim is not entitled thereto, judgment, in- cluding costs, will be rendered accordingly; but when it in like manner is determined that any such company has an in- terest in such roadbed, or part thereof, so sought to be appro- priated, the jury must determine and state the amount of compensation due to such company, according to law, on ac- count of the appropriation of such interest. 55 Sec. 555. In what court such proceedings may be commenced. Proceedings under this act may be commenced in the probate court, the court of common pleas or the superior court of any county in this State in which such roadbed or part thereof so sought to be appropriated or condemned may be situated; all or part only of such roadbed within this State may be included in one proceeding, and when such proceeding is commenced in the court of common pleas or superior court, the same proceed- ing shall be had as is prescribed in this chapter for the conduct of the same in the probate court, so far as the same may be applicable to such common pleas or superior court, and not excepted in this section, and the case shall, on motion, be taken out of its order by the court or by any reviewing court, and determined without any unnecessary delay; and proceedings in error to such common pleas or superior courts, may be com- menced directly in the supreme court, but the provisions of this chapter as to viewers shall not apply to appropriations authorized by such sections, and when any railroad corporation shall commence proceedings under this act, the president of said corporation shall make, subscribe and file in the court where any such proceedings is had, a statement under oath. declaring that it is the bona fide intention of said corporation to complete and operate a railroad on the roadbed so sought to be appropriated ; and if said corporation shall for a period of one year after it shall have acquired right to occupy the road- bed, fail to expend in and about the completion of a railroad thereon a. sum equal to twenty-five per centum of the total cost of completing the same, to be estimated by the commis- sioner of railroads and telegraphs, then and in such case the s;iid roadbed shall be open to appropriation and condemnation ">Gen'l Code, SHOTS (R. S. §6446). 641 TITLE TRANSFERRED BY CONDEMNATION PROCEEDINGS. § 556 under this act by any other railroad corporation. The words roadbed used in this act shall be held to include right of way, depot grounds and other easements connected therewith, and it shall be sufficient in the petition and proceedings under this act to designate the roadbed as the roadbed of the railroad corporation by which the route of the road was located and established, with the terminal points within which appropria- tion is sought. 56 Sec. 556. Proceedings when land is held without agreement by a corporation. When a corporation authorized by law to make appropria- tion of private property or the land named in Gen'l Code, § 11067 (R. S. § 6439) of this chapter, has taken posses- sion of, and is occupying or using the land of any person, or the land mentioned in Gen'l Code, § 11067 (R. S. § 6439), for any purpose, and the land so occupied or used has not been appro- priated and paid for by the corporation, or is not held by any agreement in writing with the owner thereof, or the trustees or school officers having possession or control of the lands named in said Gen'l Code, §11067 (R. S. §6439), such owner or owners, or either of them, or said trustees or school officers, may serve notice, in writing, upon the corporation in the manner pro- vided for the service of summons against a corporation, to pro- ceed under this chapter to appropriate the lands, and on failure of such corporation for ten days so to proceed, said owner or owners, or said trustees or school officers may file a petition in the probate court of the proper county setting forth the fact of such use or occupation by the corporation, that the corporation has no right, legal or equitable, thereto, and in cases of reserved Section 16 and Section 29, or any part of sections granted by Congress in lieu of Section 16, for school purposes, named in Gen'l Code, §11067 (R, S. §6439), no right, legal or equitable, derived from the trustees and officers named therein, that the notice provided in this section has been duly served, that the time of limitation under the notice has elapsed, and such other facts, including a perti- nent description of the land so used or occupied, as may be proper to a full understanding of the facts. Such owner or ^Gen'1 Code. §11079 (K. S. §6447). §§ 557, 558 MERWINE ON REAL ACTIONS. 642 owners, or such trustees or school officers intending to institute said proceeding, may demand, in writing, from the president or chief officer of such corporation a specific description of each parcel of land so used or occupied without appropriation by it, of the work, if any, constructed or intended to be constructed thereon, and the use to which the same is to be applied, and upon failure of said corporation for ten days to furnish the same, as fully and completely as would be required of it in proceeding under Gen'l Code. § 11067 (R. S. § 6439). the fact of such demand and failure may be alleged in the petition in such proceeding, and on notice to the corporation and proof thereof being made to the probate judge having jurisdiction of such appropriation, he shall restrain said corporation from the use and occupation of said land until such demand has been com- plied with, or such owner or owners, or said trustees or school officers may cause the necessary surveys to be made therefor, and the costs' thereof shall be taxed to said corporation in said proceeding. 57 Sec. 557. Summons in such case — Judgment and execution. A summons must issue and be served upon the corporation, and thereafter the proceedings in said court must be conducted to final judgment in all respects as provided in this chapter; and if the corporation fail to pay the judgment and costs awarded against it in the proceeding, the same may be col- lected by execution as in other cases; but this section can not be construed to impair or lessen in any manner the right the owner or owners or the trustees or school officers named in § 6489 Gen'l Code, § 11067 (R. S. § 6439), of this chapter may have to proceed against the corporation as in all other cases of the unlawful entry upon lands. 58 Sec. 558. When injunction may issue against corporation. If execution issued as provided in the last section be returned unsatisfied, in whole or in part, with the indorsement that no •roods or chattels, lands or tenements can be found whereon to levy, or if the judgment remain unsatisfied for more than sixty days from the rendition thereof, the court may, by injunc- " Ccn'l Code, §11084 (R. S. •■« Gen'l Code, §11080 (R. S. § (.448 ) . § G449 ) . 643 TITLE TRANSFERRED BY CONDEMNATION PROCEEDINGS. § 559 tion, restrain the corporation from using or occupying the lands until the judgment and costs are fully paid. 69 Sec. 559. Fees of witnesses, officers, and probate judge, and how costs are adjudged. The jurors summoned, and attending or serving, in accord- ance with the provisions of this chapter, shall each receive the same fees per day as are provided by law for jurors in the court of common pleas, and also five cents per mile for each mile of the distance they are compelled to travel in the dis- charge of their duties ; the witnesses shall be allowed the same fees and mileage as are allowed for attendance at the court of common pleas; the sheriff shall be entitled to such fees as he is allowed by law for similar services in other cases, but he shall not be allowed anything in the way of poundage, except on money made on execution ; the clerk shall be entitled to a fee of one dollar and fifty cents for drawing and certifying to the probate judge the list of jurors ; the probate judge shall be allow r ed to enter a charge of five dollars in the cost bill for each day occupied in the trial cause, in addition to his other fees provided by law; and the whole costs so taxed shall be adjudged against and paid by the corporation, except as pro- vided in the next section. 60 Sec. 560. When costs may be apportioned. A corporation by its proper officer, agent or attorney, may. at the time of filing the petition with the probate judge, deposit with such judge such sum of money for each separate parcel of property as it deems a just and equitable compensa- tion for the property, rights and interest described in the petition, and sought to be appropriated; and when the final verdict of the jury as to any parcel of property does not exceed the amount so deposited, and the owner has refused, after notice of such deposit, to accept the same, the whole costs of the proceeding as to such parcel shall be equally divided between the corporation and the owner or owners of the property; and when the final verdict as to any parcel or parcels exceeds, and as to other parcel or parcels does not exceed the amount deposited, the probate judge shall appor- "Oon'l Code. HIOSS ( R. S. ™ Gen'l Code, §11089 ( R. S. §6450). §6451). § 561 MERW1NE ON REAL ACTIONS. 644 tion the costs in such manner as he may deem equitable and just. 01 Sec. 561. When this chapter does not apply. The provisions of this chapter shall not apply to proceedings by State, county, township, district or municipal authorities, to appropriate private property for public uses, or for roads or ditches ; and in all such cases it shall be optional with such authorities to pay the judgment rendered against them accord- ing to Gen'l Code, § 11058, (R. S. § 6432), or to pay the costs and decline to take the property sought to be appropriated. 02 ei Gen'l Code, §11090 (R. S. 62 Gen'l Code, §11091 (R. S. §6452). §6453). FORMS. PROCEDURE BY WHICH A MUNICIPAL CORPORATION CONDEMNS REAL ESTATE FOR PUBLIC PURPOSES. Forms. 388. Application to assess com- pensate m. The precipe to the clerk. The order of the court as to the manner of notice in the above case. The notice to be served by the sheriff in compliance with previous order. The sheriff's return of his proceedings under this writ. Answer of defendant. Eeply of plaintiff. Motion by county commis- sioners to be made parties defendant. Waiver of notice and entry of appearance of county commissioners. Order of court making county commissioners defendants. 389. 390. 391. 392. 393. 394. 395. 396. 397. Forms. 398. Offer of plaintiff to confess judgment. Decree and order of the court impaneling jury. Order to clerk and sheriff to draw jury. Form for list of names drawn for jurors in the probate court. The venire. The sheriff's proceedings writ. Writ of view. The sheriff's proceedings writ. The verdict of the jury. Order of the court confirm ing verdict. 399. 400. 401. 4(12. 403. 404 405 406. 407. return of his under said return of his under said No. 388. Application to assess compensation. Probate Court, County. Ohio. City of — , Ohio, Plaintiff, vs. No. W. J. R., E. M. R., his wife, and M. E., as trustee of the estate of L. E., deceased, Defendants. Petition. Now comes plaintiff. The City of , Ohio, and represents to the court that it is, and at the various times mentioned in this application was a city under the laws of Ohio, and duly organized 645 MERWINE ON REAL ACTIONS. 646 as such; that its city council, by resolution duly adopted on the day of , 19 , declared the necessity of appropri- ating, its intention to appropriate, and that it was reasonably neces- sary to appropriate the following described property to public use with the purpose of constructing a for the said city of , Ohio, and the inhabitants thereof, to-wit: (Here describe real estate). On the passage of said resolution, members of said county voted in the affirmative and no votes were cast in the negative. Said resolution was duly published in , and on the and days of , 19 , each of said newspapers being newspapers of general circulation in the city of , _ County, Ohio, the said being published in the German language. Notice of the passage of said resolution was duly served upon the defendant W. J. R., on the day of , 19 , by , the said having been appointed for that purpose by the mayor of , Ohio, on the day of , 19 . The said duly made return of his said service on said W. J. R., on the day of , 19 • A true copy of said resolution is hereto attached and made a part hereof and marked "Exhibit A." The said city council duly passed an ordinance, No. , on the day of , 19 , determining to proceed with the appropriation of, and to appropriate the' above described property to public use for said sewage disposal plant purposes. On the passage of said ordinance, members of said council voted in the affirmative and no votes were cast in the negative, more than two-thirds of said council concurring therein. Said ordinance was duly published in the said , said , and said , on the and days of , 19 . A true copy or said ordinance is hereto attached and made a part hereof and marked "Exhibit B." The proceedings of the council of the city of , Ohio, above referred to, have been taken to secure the above described property for public use for sewage disposal plant purposes. The City of , Ohio, represents that it was, and is reason- ably necessary to acquire the above described property for the pur- poses hereinbefore stated, and now asks the court to impanel a jury to make inquiry into, and assess the compensation that shall be paid to the owners thereof for said property. The said parties made defendant herein own, or claim to own, or have some title or interest in the above described property. Said W. J. R. is the owner of the above described property and E. M. R. has a dower interest in said property. Wherefore, Plaintiff asks the court to cause a jury to be im- paneled to make inquiry into and assess the compensation to be paid by the plaintiff tor said property appropriated and hereinbe- fore described, and that upon payment to the owner or owners, or 647 FORMS. the deposit of the amount so assessed as the court shall order, possession of said property may be awarded it according to law. J. N. B., City Solicitor. The State of Ohio, County, ss.: .7. N. B., being first duly sworn, says that he is the city solicitor for the city of , duly authorized in the premises, and an attorney of record in the above entitled cause, and that the facts stated and allegations contained in the foregoing application are true as he verily believes. , J. N. B. Sworn to before me by the said J. N. B., and by him subscribed in my presence this day of , 19 . Notary Public, County, Ohio. No. 389. The precipe to the clerk. issue notice to the defendants named in the above application that the plaintiff will, on the day of , 19 , at o'clock m., apply to the Hon. , Judge of the Probate Court of County, Ohio, for the impaneling of a jury to make inquiry into and assess the compensation to be paid by the City of , Ohio, the plaintiff in the above entitled case, to the owner, or owners, for the following property, to-wit: (Here describe it). No. 390. The order of the court as to the manner of notice in the above case. (Same caption as in the petition.) This day came the plaintiff, by its attorneys, and filed its appli- cation to assess the compensation for the appropriation of certain property therein described, naming the defendants as persons owning or having an interest in such property, and filed therewith its precipe for a notice to the defendants W. J. R., E. M. R., his wife, and M. E. trustee of the estate of L. E., deceased. Wherefore, It is ordered that a notice be issued, directed to the Sheriff of County, Ohio, to notify said W. J. R., E. M. R., his wife, and M. E., trustee of the estate of M. E., deceased, that on the ■ day of , 19 , at o'clock m., application will be made for an order to impanel a jury to assess the compen- sation to be paid by the city of , Ohio, to the owner or owners of the property which said application described. Said notice is to contain an accurate description of the entire piece of real estate to be appropriated. Said application is set for hearing on the day of , 19 , at o'clock m., for the purpose of impaneling a jury, and said notice must be served at least five days before the time of said hearing, and that said defendant must MERWINE ON REAL ACTIONS. 648 appear before said Probate Court at the court house in said county on the day and hour above mentioned, when said application will be for hearing. , Probate Judge. No. 391. The notice to be served by the sheriff in compliance with a previous order. (Same caption as in the petition.) To the Sheriff of County, Ohio: You are hereby commanded to notify W. J. T., E. M. R., his wife, and M. E., trustee of the estate of L. E., deceased, that an application in writing, substantially as herein set forth, will be made in the city of , Ohio, to this court on the day of , 19 , at o'clock — m., to impanel a jury to make inquiry into and assess the compensation to be paid by the City of , Ohio, the plaintiff in the above entitled case, to W. J. R., E. M. R., his wife, and M. E., trustee of the estate of L. E., deceased, the owners of the following described real estate, to-wit: (Here describe it.) Said property having been condemned and appropriated to public use for the purpose of constructing a for the said City of , Ohio, and the inhabitants thereof, by an ordinance passed by the council of said city on the day of , 19 , and plaintiff asks that upon the payment to the owner or owners, or the deposit of the amount so assessed, as the court shall order, possession of said property may be awarded to it according to law, and that said defendants appear before said Probate Court at the court house in said city and county on the day of , 19 , at o'clock m., and that said application will be for hearing, said notice to be served at least days before the time of said hearing, and on or before which date you will make due return of this writ. Witness my hand and seal of said court this day of , 19 . . Probate Judge. No. 392. The sheriff's return of his proceedings under this writ. In the Sheriff's Office. State of Ohio, County, ss.: Received this writ on the ■ day of , 19 , at o'clock M., and pursuant to its command on the day of , 19 , I served the same by personally handing a true and duly certified copy of this writ, with all the indorsements thereon, to the within named defendant, M. E., trustee of the estate of L. E., deceased; also on the day of , 19 . I served the same by personally handing a true and duly certified copy of 649 FORMS. this writ, with all the indorsements thereon, to the within named defendant, E. M. R., wife of W. J. R., and on the same day I served the same by leaving a true and duly certified copy of this writ with all the indorsements thereon at the usual place of residence of the within named defendant, W. J. R. Sheriff of County, Ohio. No. 393. Answer of defendant W. J. R. (Same caption as in the petition.) For his defense to the "application to assess the compensation" filed herein, defendant, W. J. R., denies "that it was and is reasonably necessary to acquire the property of this defendant therein described for the uses therein stated;" he denies the right of said City of , Ohio, to ask this court to impanel a jury to make inquiry into and assess the compensation that shall be paid the owners thereof for said property on the representations therein set forth; he denies the right of this court to grant the prayer of said application and to cause a jury to be impaneled to make inquiry into and assess the compensation to be paid by the City of , Ohio, plaintiff, for said property so attempted to be appropriated, or to order pos- session thereof awarded upon the payment of any sum whatsoever by reason and on account of the matters and things in said application set out. Further answering said application this defendant says that several years ago the plaintiff, the City of , Ohio, purchased the title to acres of land immediately south of the lands of this defendant to be used solely for purposes, but which use has not been abandoned by the city; that they exchanged about acres off the west end thereof for about acres of land immediately east of the lands of this defendant, and that said City of — , now owns in fee simple about acres, more or less, adjoining the lands of this defendant on the east and south thereof upon which it intends to maintain and operate a at or near the dividing line and nothing more. This defendant further says that since the City of •, Ohio, abandoned its purpose to use said acres for purposes, it has purchased what are known as the farms, located more than miles south of the lands of this defendant, and it is upon this last mentioned property, and no other, that the City of , Ohio, intends to establish a ; that in the passage of the resolution and ordinance referred to in said application, de- claring the intention to appropriate the property for sewage dis- posal plant, this defendant was. advised that it was only the inten- tion of said City of , Ohio, to construct and maintain a in and over the lands of this defendant, con- necting its present system with said on said lands of the city so heretofore acquired by the city, and ad- MERWINE ON REAL ACTIONS. 650 joining the premises of the defendant; that at the time before the passage of said resolution and ordinance, it was not, and is not now the intention of said City of , Ohio, to establish on the lands of this defendant sought to be appropriated herein, a , nor appropriate any of the lands of this defendant for such purposes. On the contrary, this defendant says that it was and is the intention of said city to appropriate said acres of land for the purpose of constructing thereon a , which is to be an exten- sion of its present , upon the lands of the plaintiff so pur- chased by said city and adjoining the lands of defendant aforesaid, and that it has no intention of maintaining a upon any part of said acres of land. Wherefore, this defendant says that there is not now, and never has been any resolution or ordinance such as is required by law passed by the city council of , Ohio, upon which to base authority for this action, and that this action is wholly unwarranted and unauthorized by law. (This answer is verified as in other cases.) No. 394. Reply of plaintiff. Now comes the plaintiff of the City of , Ohio, and for reply to the answer of the defendant, W. J. R., admits that the City of , several years ago purchased a title to acres of land lying immediately south of the land of said defendant; that the city exchanged about acres off of the west end thereof for about acres of land lying immediately east of the lands of said defendants, and that the City of has purchased the farms known as the farms, located about miles south of the land of said defendant, on which, in part, it intends to estab- lish a . This plaintiff, further replying, denies each and every fact stated and allegation contained in said answer, not herein expressly admitted to be, true. This reply is verified as in other cases. No. 395. Motion by county commissioners to be made parties defendant. (Same caption as in the petition." Now come , — and , commissioners of County, Ohio, by their attorneys, and represent to the court that across the property sought to be condemned in the above en- titled case, there is a county duly and regularly established, and that the County of , State of Ohio, has interests in- volved in said suit which ought to be protected, and therefore move the court that they, as such commissioners, be made parties de- fendant herein. , Attorneys for the Commissioners of County, Ohio. 651 FORMS. No. 396. Waiver of notice and entry of appearance of county commissioners. Now come , and , the duly elected, quali- fied and acting commissioners of County, Ohio, and on behalf of said County, hereby waive the service and return of notice of the adoption of the resolution of the city council of , Ohio, adopted on the day of , 19 , de- claring the intention of said city to appropriate the property in- volved in this suit for a , and further on behalf of said county, waived the issuance, the service and return of sum- mons, or other process herein and all irregularities of any kind and character in the proceedings of said council and this court, and voluntarily enter their appearance as such commissioners herein. No. 397. Order of the court making county commissioners defendants. (Same caption as in the petition.) This day this cause came on to be heard upon motion of the county commissioners of County, Ohio, that they, as such commissioners, be made parties defendant herein, and On considera- tion whereof, and it appearing to the court that said County, Ohio, has interests in said cause which ought to be protected, t is ordered and decreed that said commissioners be, and they ne^by are made parties defendant herein. No. 398. Offer of plaintiff to confess judgment. (Same caption as in the petition.) Xow comes the plaintiff, the City of , Ohio, and offers to confess judgment in favor of the defendant, W. J. R., in the amount of $ , and all the costs accrued to date. This offer is made in pursuance of Section 19 of the New Ohio Municipal Code passed October 22, 1902, at Section 5142, Bates Revised Statutes of Ohio (Gen'l Code, Sec. ). No. 399. Decree and order of the court impaneling jury. (Same caption as in the petition.) This day this cause came on to be heard upon the application of the plaintiff, the City of , Ohio, to impanel a jury to assess the compensation to be paid the owners of real estate described in said application. The answer of the defendant, W. J. R., the reply of plaintiff, the evidence offered, was argued by counsel and sub- mitted to the court, and upon due consideration whereof the court MERWINE ON REAL ACTIONS. 652 finds that each and all of the defendants have been duly served with notice of the pendency of the application in the ordinary manner by serving legal process at least five days prior to this application, or have voluntarily entered their appearance herein, and that all of the proceedings are regular and valid: It is therefore ordered, adjudged and decreed that a jury be impaneled on the day of , 19 , at o'clock m., for the purpose of assessing the compensation to be paid for said property. No. 400. Order to clerk and sheriff to draw jury. (Same caption as in the petition.) To the Clerk of the Court of Common Pleas, and the Sheriff of said County: You are hereby notified and directed to meet at the clerk's office and proceed at once in said office and draw from a jury box accord- ing to law, the names of twelve jurors to serve in the above entitled case in the Probate Court of said county, and the clerk aforesaid will make a list of the names drawn in the order in which they are drawn, and certify the same to be, with the return of this writ. Witness my hand and the seal of said Probate Court at , Ohio, this day of , 19 . Probate Judge. No. 401. Form for list of names drawn for jurors in the pro- bate court. Office of the Clerk, Court of Common Pleas, County, Ohio. To the Probate Judge of said County, Greeting: Pursuant to the order and notice dated the day of , 19 , I, with the sheriff of said county, met at this office, and we proceeded at once therein, on this day of , 19 , to draw from the jury box the names of petit jurors. I certify that the following is a list of the names so drawn in the order in which they were drawn: Witness my signature and the seal of said Court of Common Pleas of , Ohio, this day of , 19 . Clerk. 653 FORMS. No. 402. The venire. State of Ohio, County, ss.: To the Sheriff of said County, Greeting: We command you that without delay, you summon Names. Addresses. to be and appear before the Probate Court within and for said County of , at the court house in , in said county on the day of , 19 , at o'clock m., and so from day to to day until discharged, then and there to serve as jurors in the case of the City of , Ohio, vs. W. J. R., et al, and how you shall execute this writ you will make it appear to the Probate Court on the day above named, and have you then and there this writ. Witness my signature as judge and ex officio judge of said court this day of , 19 . Judge and Ex Officio of the Probate Court. No. 403. The sheriff's return of his proceedings under said writ. State of Ohio, County, ss.: Sheriff's Office. - 19- On the day of 19- -, I received this venire and served the same on the several persons therein named at the times, manner and place opposite their names indorsed thereon. Names. Where served. How served. MERWINE ON REAL ACTIONS. 654 Names. Where served. How served. Sheriff. No. 404. Writ of view. (Same caption as in the petition.) To the Sheriff of County: You are commanded to conduct the twelve jurors named in the panel to this writ annexed, to view the premises or property sought to be appropriated by the City of , Ohio, and owned by W. J. R., and described as follows, to-wit: (Here describe it), on the day of , 19 , then and there to view the premises or property aforesaid, in the presence of , on the part of -, on the part of the owners, the corporation aforesaid, and appointed in this court, and you shall make return of the manner in which you have executed this writ to this court on the day f , 19 ( and have you then and there this writ. Witness my hand and seal of said court this 19 . Probate Judge of day of County, Ohio. No. 405. The sheriff's return of his proceedings under said writ. T hereby certify that the view of the premises or property required by the within writ has been duly made by said jurors, according to the command thereof, on this day of , 19 . Sheriff of Panel ok Jurors. County, 0. No. 405. The verdict of the jury. (Same caption as in the petition.) We. the jury impaneled and sworn in this case, do assess the compensation and damages to be paid by the plaintiff by reason of 655 FORMS. the appropriation of the property described in the petition, to the uses and purposes of said plaintiff so set forth in said petition as follows: To , owner of said real estate, as compensation for land taken, $ . And as damages to the residue of said tract, $ . We make said assessments without deduction for benefits to any property of the owners for any improvement proposed by said plaintiff. No. 407. Order of court confirming verdict. (Same caption as in the petition.) The jury herein having returned a verdict for the amount of com- pensation in tnis case to be paid to W. J. R., as owner of the real es- tate described in the application by reason of the appropriation of the same to the use of the plaintiff, at $ , it is now, therefore, ad- judged that said verdict be confirmed, with the reservation to the defendant, W. J. R., of his right to file a motion for a new trial within the time allowed by law, and that said plaintiff, upon payment of the said amount of said verdict, and of all costs due from them, shall be entitled to take possession of and hold the premises afore- said, with all the rights and interest thereto belonging and appending for the uses and purposes for which the appropriation is made, and all necessary process to put said plaintiff in possession of the same is thereupon awarded. MERWIXE OX REAL ACTIOXS. 656 PROCEDURE IN TRANSFER OF TITLE IN CONDEMNA- TION PROCEEDINGS BY A PRIVATE CORPORA- TION OF THE PROPERTY OF AN INDIVIDUAL. Forms. 408. Form for the petition for the appropriation of private property. 400. The precipe in such ease. 410. Order issuing summons for the defendant and fixing the time and place for hear- ing preliminary questions. 411. The summons and the sher- iff's return of his proceed- ings under said writ. 412. Motion to dismiss action. 413. Order of the court overruling motion, directing that a jury be drawn and fixing the time at which the jury must appear. 414. The order to draw jury. Forms. 415. The sheriff's return of his proceedings under said writ. The venire. The sheriff's return. Entry of the court ordering the jury to view the prem- ises sought to be appropri- ated. Writ of view. Sheriff's return of his pro- ceedings under this writ. 421. The verdict of the jury. 422. Motion to set aside verdict and for a new trial. Entry overruling motion and confirming the verdict of the jury. 416. 417. 418. 419 420 423. No. 408. Form for the petition for the appropriation of private property. The Company, Plaintiff. vs. M. V., S. V., J. W. B. and J. S. B., Defendants. No. Petition. Plaintiff says that it is a corporation duly organized under the laws of the State of Ohio under the corporate name of The Company; ihat it now owns and operates within the State of Ohio, a railway known and designated as The Company; that on the day of , 19 , at a meeting of the stock- holders of said railway company, of which due notice had been given according to law, the holders of a majority of the stock of said company determined to extend the line of said railway from northward to the Town of , in the said State of Ohio; that the president and directors of said company made a certificate of said fact according to law, naming the place of the new terminus of said railway, and the counties through and into which said rail- way would pass, and filed the same in the office of the Secretary of State; that by reason of said action so taken said railway was 657 FORMS. extended northward through the County of , in and through the County of , and and in the County of to a point in the line of the railway where it makes a junction with The Company at or near the Town of in said County of in the State of Ohio, and to make the said Town of in said County of , the terminus of said portion of said railway, instead of the City of , Ohio, as heretofore, said City of having been here- tofore the terminus of said portion of said railway; that it is neces- sary, in order to carry out the business and purposes of this incorpora- tion and its said extension, that it shall appropriate the lands herein- after described for the purposes of a right of way and the laying of its railway tracks thereon, and to conduct its business as a common carrier within said State. Said real estate over and through which said right of way is sought to be appropriated is hereinafter described in four several tracts which are respectively designated Tract A, Tract B, Tract C, and Tract D, and which said tracts are owned by the persons desig- nated as the owners thereof in the description of each of said sev- eral tracts. Tract A. owned by M. V., is situated in Township, — County, Ohio. (Here describe it). The portion or portions of said lands heretofore last described so sought to be appropriated as aforesaid for a right of way of said railway company being a strip of land feet in width, being feet on each side of the center line of said railway so now located through said land, said strip being feet long and containing acres of land, said center line of said railway entering said Tract A at of said survey, and running through said Tract A in direction to stations of said railway. (Here follows description of B., C. and D. in the same manner and giving the names of the owners thereof.) For a more full description of the lands so sought to be ap- propriated for right of way in the tracts of land heretofore described, reference is here made to plats of the surveyed line of said railway through said tracts of land, which said plats are hereto at- tached marked Exhibit A. Exhibit B, Exhibit C and Exhibit D, and made a part of this petition. Plaintiff further says that it is unable to agree with said owners as to the compensation to be paid for said property. Plaintiff therefore prays that such steps may be taken as are authorized by law whereby it will be enabled to appropriate said parcels of property to its use for the purposes described, upon the payment of full compensation to the owner thereof as the same may be found and as provided by law. Attorneys for Plaintiff. MERWINE ON REM, ACTIONS. 658 State of Ohio, County, ss.: , being duly sworn, says that he is the chief engineer and duly authorized agent of the plaintiff herein, and he believes the statements of the foregoing petition to be true. Subscribed in my presence and sworn to before me this day of , 19 . Notary Public, — County, Ohio. No. 409. Precipe in such case. To , Probate Judge: Issue summons in the above case for M. V., S. V., J. W. B. and J. S. B., returnable according to law. Indorse, "An action to condemn the following described real estate for right of way purposes for railway." (Here describe real estate sought to be condemned.) Attorneys for Plaintiff. No. 410. Order issuing summons for the defendant and fixing the time and place for hearing preliminary questions. (Same caption as in the petition.) This day came the plaintiff by its attorneys and filed in this court its petition for the appropriation of private property described in the petition and owned by the persons therein named, and filed therewith a precipe for summons for the defendants, whereupon it is ordered that a summons issue to the sheriff of County, Ohio, for the defendants, which is done. And the court fixing the day of , 19 , at o'clock m., as the date for the hear- ing the preliminary questions herein, to which time this proceeding is continued. No. 411. The summons, and the sheriff's return of same. Probate Court. State of Ohio, County, ss.: To the Sheriff of County: You are commanded to notify M. V., S. V., J. W. B. and J. S. B., that on the day of , 19 , a petition was filed in the Probate Court of County, Ohio, by The Com- pany praying for the appropriation for its uses of certain property interests and rights therein described situated in said county in which they have an interest as owners or otherwise; and that they ;;ppear before said Probate Court at the court house in said county, on the - day of - — . 19 . at - - o'clock, m., when said petition will lie for hearing,. on or before which day you will make due return of this writ. 659 FORMS Witness my hand and the seal of said court this day of 19 . Probate Judge of County, Ohio. The Shebiff's Retubn of His Proceedings Undeb Said Wbit. State of Ohio, County, ss.: Received this writ on the day of , 19 , at o'clock m.. and on the day of , 19 , I served the same by personally handing a true copy thereof, with all indorsements thereon, to the within named M. V., S. V., J. W. B. and J. S. B. , Sheriff. No. 412. Motion to dismiss action. (Same caption as in the petition.) Now come the defendants, and at the close of the evidence upon the hearing of the jurisdictional question herein as set forth in S (i420 (Gen'l Code, Sec. ) of the Revised Statutes and move the court to dismiss the petition and the proceedings thereunder, because: (Here set forth reasons for dismissing the petition.) Attorneys for Defendants. No. 413. Order of the court overruling motion, directing that a jury be drawn and fixing the time at which the jury must appear. (Same caption as in the petition.) This day came the plaintiff and said defendants, each and all of them, and thereupon this cause came on to be heard upon the ques- tions of the existence of the corporation, its right to make the ap- propriation, its inability to agree with the owners of the property, and the necessity of the appropriation, and the court, having heard the evidence, and having considered the motions to dismiss the pro- ceedings filed herein, on the day of , 19 , having heard the arguments of counsel and being fully advised in the prem- ises, does overrule said motion, and do find that the plaintiff is a corporation, and had a legal right to make the appropriation prayed for in said petition, in each and all of the tracts described therein; that the plaintiff is unable to agree with the owners of said property as to the amount of compensation to be paid to them therefor, and that there is a necessity for such appropriation as stated in the petition, and the court proceeding as directed by the statute, orders and directs that a jury be drawn as required by law, and that said jury be sum- moned to appear before this court on the day of , 19 , until which time this cause stands adjourned. To all of which findings, rulings, orders and judgments, and each thereof, and all of the matters herein found and recited, and the order and judgment of said court directing the drawing and sum- MERWINE ON REAL ACTIONS. GGO moning of a jury, and the overruling of said motion, the said defend- ants, and each and all of them jointly and severally at the time excepted, and herein now except. No. 414. The order to draw jury. (Same caption as in the petition.) To the Clerk of the Court of Common Pleas and the Sheriff of ; — ■ County: You are hereby notified and directed forthwith on the receipt hereof, to draw 16 names from the box containing the names of persons selected as jurors for the county, to serve as jurors in the case of The Company vs. M. V., et al, in the Probate Court of said County, and the clerk aforesaid will return to me this writ with a list of the names so drawn indorsed thereon. Witness my hand and seal of said Probate Court, this day of -, 19 • "> Probate Judge. No. 415. The sheriff's return of his proceedings under said order. The State of Ohio, County, ss.: To the Probate Judge of said County, Greeting: Pursuant to your order of the day of I have, with the sheriff of said county, on this 1 19 , drawn according to law the following names from the box containing the names of persons selected as jurors from the county, to-wit: Names. Addresses. 19 , day of Witnf.ss my signature and the seal of the Court of Common Pleas, said county, this day of , 19 . Clerk. 661 FORMS. No. 416. The venire. The State of Ohio, County, ss.: To the Sheriff of said County, Greeting: We command you that, without delay, to summon: Names. Addresses. to be and appear before the Probate Court within and for said County of ; at the court house in in said county on the day of , 19 , at o'clock in the forenoon and so from day to day until discharged, then and there to serve as jurors in the cause of The Company, vs. M. V., et al, and how yon shall execute this writ, make it appear to our said court on the day above named, and have you then and there this writ. Witness my signature as judge and ex officio judge of said Probate Court at this dav f , 19 . Judge and Ex Officio Judge of the Probate Court. No. 417. The sheriff's return. State of Ohio, : County, ss.: Sheriff's Office. On the day of 19- < , 19 . I received this venire and served the same on the several persons therein named, at the times and in the manner placed opposite their names indorsed thereon. Names. Where served. How served. MEKWINE ON REAL ACTIONS. 662 Names. Where served. How served. Sheriff of County, Ohio. No. 418. Entry of the court ordering the jury to view the premises sought to be appropriated. (Same caption as in the petition.) This day came the plaintiff and defendants, and also came the following named persons who were duly examined and im- paneled and sworn as jurors herein according to law, to-wit: and thereupon, on motion of plaintiff, an order was issued to the sheriff to conduct the jury to view the premises sought to be appro- priated on the day of , 19 , in the presence of , appointed on the part of plaintiff, and , appointed on the part of the defendants, to show the jury said premises, returnable on the day of , 19 . No. 419. Writ of view. (Same caption as in the petition.) To the Sheriff of County: You are hereby commanded to conduct the twelve jurors named in the panel to this writ annexed, to view the property or premises sought to be appropriated by The Co., and owned by et ah defendants, on the day of , 19 , and then and there to view the premises or property aforesaid in the presence of on the part of the corporation aforesaid, and on the part of the owners, appointed in this court; and vou shall make return of the manner you have executed this writ to this court on the day of , 19 , and have you then and there this writ. 663 FORMS. Witness my hand and the seal of said court this day of , 19 . , Probate Judge of - County, O. No. 420. Sheriff's return of his proceedings under this writ. I hereby certify that the view of the premises, or property, re- quired by the within writ, has been duly made by the said jurors according to the command thereof. 19 . Panel of Jubobs. No. 421. The verdict of the jury. (Same caption as in the petition.) We, the jury impaneled and sworn in this case, do assess the compensation and damages to be paid by the plaintiff by reason of the appropriation of the property described in the petition to the uses and purposes of said plaintiff so set forth in said petition as follows: To , owner of Tract C, as compensation for land taken, $ , and as damages to residue of tract $ . To , owner of Tract D as compensation for land taken, $ , and as damages to residue of tract $ . We make said assessments without deduction for benefits to any property of the owners from any improvement proposed by plaintiff. 19 • Foreman. No. 422. Motion to set aside the verdict and for a new trial. (Same caption as in the petition.) The plaintiff now comes and moves the court to set aside the verdict in this action awarded said defendants and grant a new trial in said action for the following reasons: (Here give them). Attorneys for Plaintiff. MERWINE ON REAL ACTIONS. 664 No. 423. Entry overruling motion and confirming the verdict of the jury. (Same caption as in the petition.) The jury herein having assessed the amount of compensation in this case to be paid to , owner of said real estate described in the petition as Tract C, by reason of the appropriation of the same to the use of the plaintiff, at $ for the land taken, and $• — — for the damages to the residue of said land, in all the sum of $ , and the motion of the plaintiff for a new trial having been made, the same is hereby overruled, to which the plaintiff excepted. It is therefore ordered and adjudged that said verdict be, and the same is hereby confirmed, and the said plaintiff, on payment of the amount of said verdict, to-wit: $ and all costs from the plaintiff due, taxed at $ , shall be entitled to take possession of and hold the premises aforesaid with all rights and privileges there- unto belonging and appertaining for the uses and purposes for which the appropriation was made, and all necessary process is awarded to put said plaintiff into possession of the same. CHAPTER XVII. TRANSFER OF TITLE BY VACATION OF A STREET OR ALLEY OF A MUNICIPALITY. SECTION. :>&2. Vacation of street or alley by order of the court. 503. Vacated portion of street or alley reverts to adjoining owners. Sl.< uox. 564. Petition for vacation of such street or alley, and the nut ice thereof to adjoining property owners. 565. Street or alley not to be closed until damages are paid. Sec. 562. Vacation of street or alley by order of the court. On petition filed in the court of common pleas by any person owning a lot in any city or in any incorporated or unincorpor- ated hamlet or village, for the establishment or vacation of a street or alley in the immediate vicinity of such lot. the court, upon hearing, and being satisfied .that it would conduce to the general interest of such city, or the hamlet or village, may declare such street or alley established or vacated: but the remedy provided in this section will be in addition to those prescribed in the chapter of the statutes of this State concern- ing streets, public grounds, etc. 1 i R. S. §§ 1536-148. 1536-145-146- 147 provide for the vacation of streets, change of name. etc. by proceedings by the council of any city or village for that purpose. "Under a claim of abandonment of a road in a municipal corporation, proof that no work has l>een done on the road by the public authori- ties for fifteen years: that the road was at times in bad condition and impassable: that it passed over a steep hill: was difficult of use; that a new road had been established in the vicinity intended to take its place: that eleven years before suit 665 was brought travel had been sub- stantially diverted to the new road. and that portions <>f the old road had been fenced in, are not suffi- cient to show abandonment by the public. "If non-user of such road may work an abandonment of it. the non-user must be shown to have extended over a period of twenty- one years.'" Xail v. Furnace, eic 46 0. S. 544. Streets and highways were held in trust by the officers of a municipality for the public. Rail- way v. Elyria, 14 C. C. 52. §§ 563, 564 MERWINE ON REAL ACTIONS. 666 Sec. 563. Vacated portion of street or alley reverts to adjoin- ing owners. When a street or alley is vacated under the provisions of the statutes authorizing the same to be vacated by the court of com- mon pleas, and under the statutes authorizing the council of a municipality to vacate the same, the portion of such street or alley vacated reverts to the abutting lot owners, subject, however, to such rights as other property owners on the street or alley may have therein as a necessary means of access to their property.- Sec. 564. Petition for vacation of such street or alley, and the notice thereof to adjoining property owners. Notice of the pendency, object and, prayer of a petition for the vacation or establishment of a street or alley as aforesaid is required to be given by publication in some newspaper of general circulation in the county in which said street or alley is located, for four consecutive weeks on the same day of the week, and the cause may be heard and determined at any time after the expiration of ten days from the last publication; and if any person other than the petitioner, owning a lot in the immediate vicinity of such street or alley prayed to be vacated or established, claims that he will sustain dam- age thereby, the court may proceed to hear proof in reference thereto and may render judgment against the petitioner for such damages as it may think just, and the same must be assessed by the court against the petitioner, ratable according to the value of the property owned by them as the same stands taxed on the tax list of the county; and a jury may be de- manded as in other cases; and when necessary it is made the duty of the court to appoint a guardian ad litem for all minors 2Kinnear rt al. v. Beatty, 05 0. Jones oil Easements, §§ 54P> and S. 264. "Where his property is net 550; Smith v. Boston, 7 Cush. 254; in physical contact with the va- Littler v. City, 106 111. 353: Kim- cated portion of the street, and he ball 'v. Tloman, 74 Mich. 0!)!); Bailey has other reasonable means of ac- v. Culver, 84 Mo. 531; Jackson v. cess, the individual has no right of Jackson, 16 O. S. 163; Elliot on action by winch he can enjoin the Bailroads, §1086; Buhl v. Depot obstruction or recover damages. Co.. !>s Mich. 596; Quincy, etc., v. The authorities an- numerous in Newcome, 7 Met. 276." support of this proposition. Ibid. 667 TRANSFER OF TITLE BY VACATION. § 565 or persons of unsound mind who may be interested '..) the premises. 8 When one of two owners adjoining an alley obtains the vacation thereof without the consent of the other owner, the petitioning owner can not obstruct the alley. 4 Under a recent enactment municipalities must be notified. 4 * Sec. 565. Street or alley not to be closed until damages are paid. Thv street or alley so declared vacated under the provisions of the foregoing sections can not be closed or obstructed until the damages so established have been fully paid to the persons entitled to the same. 5 3R. S. §1536-149. See No. 424 for form of the petition, the notice and order of sale in such cases. A municipality, bv its council, can not vacate a part of a city road within its boundaries. Railway v. Cum- mins, 53 0. S. 083. 4 2 N. P. N. S. 293. In such case the city has the right to inter- vene by cross-petition and claim damages. In re Alley, 25 W. L. B. 89. See also Cincinnati v. Commis- sioners, 1 Disn. 4. See also under this section of the statutes, In re Railway Co., 19 C. C. 308. As to title of adjoining owners, see also Stevens v. Shannon et al„ G C. C. 142; affirmed in 51 O. S. 393; Kerr v. Commissioners, 51 O. S. 593. •**99 O. L. 93. s R. S. § 1536-150. FORMS. PROCEDURE IN CASE OF VACATION OF STREET OR ALLEY. Forms. Forms. 424. The petition therefor. 426. Proof of publication of the 4^5. The publication of the legal above notice. notice in such cases. 427. The order and decree of the court vacating the alley. No. 424. The petition therefor. In the matter of the application of E. M. N. and J. J. H. for vacation of an alley in the city of , Ohio. No. . Y'o the Honorable, the Judges of the Common Pleas Court of — : County, Ohio. The said petitioners. E M N and I F 1 epresent that £. M. X. i-< the owner of the following described real estate in the city of , Stat.- of Ohio, and county of . and more particularly bounded and described as follows: (Here insert description of real estate l ; that the said J. J. H. is the owner of the following described real estate in said city, county and State, and more particularly de- scribed as follows: (Here describe real estate): that said lots of said petitioners in said subdivision, are all and the only lots adjoining that portion of the alley asked to be vacated. Your petitioners respectfully request that all that portion of the alley lying adjacent to said lots aforesaid, to-wit: (Here describe that portion of the alley desired to be vacated), be vacated, for the reasons that the same is no longer of any public use whatever, either to the lot owners in the immediate vicinity, or to the public, or to the city of , Ohio, and that it will not be detrimental but conduce to the general interests to have the same vacated. Your petitioners pray for the vacation of said alley within the boundaries above described. (Said petition should be verified as other civil actions are verified.) No 425. The publication of the legal notice in such cases. Notice is hereby given that E. M. X. and J. J. H. on the day of , 19 , filed a petition in the Court of Common Pleas, 668 O'tiO FORMS. County, 'Ohio, being cause No. , asking that all that portion of the alley adjacent to the lots , and in , subdivision, in the city of , Ohio, to-wit: (Here follows description of the alley desired to be vacated), be vacaied for the reasons that the same is no longer of any public use whatever either to the lot owners in the immediate vicinity, or to the public, or to the city of , Ohio, and it will not be detrimental but conduce to the general interest to have the same vacated. Attorney for Petitioner. No. 426. Proof of publication of the above notice. State of Ohio. County, ss.: , Foreman of — , a newspaper published and printed in , County, Ohio, personally appeared and made oath that the attached printed advertisement was published for four consecutive weeks in said newspaper, i. e., on , , ■- — , and ■ — , 19 and that said newspaper is of general circulation in said county. Subscribed and sworn to this day of , 19- Kotary Public in and for County, Ohio. No. 427. The order and decree of the court vacating the alley. (Same caption as in the petition.) This cause came on to be heard, having been regularly assigned for trial, upon the petition of E. M. N. and J. J. H., to vacate the alley as hereinafter described, and the evidence, and the court finding that notice of the pendency of the petition has been given according to the statute in such case made and provided, and that no one has appeared to contest said application and no demurrer or answer has been filed thereto, and that said alley described in said petition is no longer of any public use whatever, either to the lot owners in that vicinity or to the public, or to the city of , Ohio, it is therefore ordered, ad- judged and decreed that all that portion of the alley in the City of , Ohio, lying adjacent to lots , and in subdivision to said city, to-wit: (Here insert description of the part of the alley desired to be vacated), be, and the same is hereby vacated, and the costs of this matter taxed at $ , shall be paid by the applicants herein. CHAPTER XVIII. THE ACTION TO QUIET TITLE. SECTION. 56(5. The statutory action to quiet title an additional remedy. 57 0. S. 505. i ■ i lements v. Noble, K) 0. S. 41; Graham \. Burgroff, 120 C. C. 747. 1 1 Spangler v. Dukes, 3!) 0. S. 642. is Baldwin v. Detzel, 1 Iddings F. R. D. 138. if Miller v. Cincinnati, 5 C. C. 583. it Lowmiller v. Fouser, 52 0. S. 123. is Baldwin v. Ruse, 8 A. L. R. 556; Thomas v. While. 2 0. S. 540. is Dettor v. Holland. 57 O. S. 4!>2. 20 Baird v. Ramsey, 2 C. C. N. S. 492. 2i Winemiller v. Laugblin, 51 0. S. 121. 22 Buchanan v. Roy. 2 O. S. 252: Thomas v. White. 2 0. S. 540; Douglas v. Scott. 5 0. 104: and in such ease color of title is not neces- sary. Schulte v. Oberd, 4 N. P. 207; 673 THE ACTION TO QUIET TITLE. §§570-572 ment as well as repeated acts of trespass, and 23 to remove a cloud upon title occasioned by terms in a will.- 4 Sec. 570. The action may be brought to settle a disputed boundary, when. When the action is brought under the statute by a party iu possession, alleging that he is the owner in fee and in pos- session of land described, and that the defendant claims an interesl therein because of a dispute as to the boundary line between them, the court will entertain the action under the statute 1 "' Sec. 571. Action to quiet title under the statute. An action may be brought by a person in possession, by himself or tenant, of real property, against any person who claims an estate or interest therein, adverse to him, for the purpose of determining such adverse estate or interest; or such action may be brought by a person out of possession, having or claiming to have an estate or interest in remainder or reversion in real property, against any person who claims to have an estate or interest therein, adverse to him, for the purpose of determining the interests of the parties therein. 20 Sec. 572. What the petition should allege. In commenting upon what the petition should contain, one of our courts said that the plaintiff must state the facts con- stituting his cause -of action in ordinary and concise language. It must allege a primary right possessed by plaintiff ami a corresponding duty devolving upon the defendant, a delict or wrong done by the defendant, which consists of a breach of such primary right and duty, and a remedial right in favor of the plaintiff, and a remedial duty resting on the defendant Paine t. Skinner, 8 0. 159: Yetzer C. 242: Murray v. Murray, ."> A. L. v. Thoman, 17 0. S. 130: McNeely R. 2fi(i : Rhea v. Dick. 34 U S. 420. v. Langhan, 22 ( >. S. 32; Poag v. 25 Bailey v. Hughs, 35 O. S. 597; Shaw, 10 C. C. 448; Main v. Streng, Ellithorpe v. Buck, 17 O. S. 72: 13 0. I). Hi;. Culver v. Ropers. 33 0. S. 537: Pat- 23 Marsh v. Rud, 10 0. 347: Lowe tison v. Jordon, 3 C. C. 233. v. Lowry. 4 O. 77: Bailery v. Hughes, -'6 Oen'l Code, §11001 (R. S. 35 O. S. 507. §5770). See Xo. 424 and following 24 Darlington v. Compton, 20 C. for form for petition and all the forms of procedure in this action. §§573,574 MERWINE ON KEAL ACTIONS. 674 springing from this delict, and, finally, the remedy or relief itself. A petition must state the facts which are the occasion of the primary right and duty, and the facts which constitute the defendant's wrongful act or omission. The ownership and possession of the lands are the facts which entitle the plaintiff to hold his title and possession in peace, and make it the duty of the defendant not to cast a cloud upon his title, or to inter- fere with his possession. Asserting a claim or title adverse to the plaintiffs' is the delict or wrong, on the part of the de- fendants. 27 » The adverse claim of the defendants should be averred. The usual language of the petition is that the defendant claims some interest, or pretended interest or title in the premises described, adverse to plaintiff, and that the same will be for- ever barred, unless set forth in the action by an appropriate pleading. 28 Sec. 573. Answers and cross-petitions in the action. The defendants having valid claims should assert, them by answer or by answers and cross-petitions in the action as in other cases. In the note below will be found the cases where such pleadings including a counterclaim were filed ■j:> Sec. 574. Necessity of alleging possession. The naked possession of real estate is sufficient to enable the plaintiff to maintain an action to quiet title, and unless a better title be shown by the defendant, the plaintiff will be 27 Lamb v. Boyd, 4 C. €. 501. As to the allegations of the petition, see, further, Lake, etc., v. Cleve- land. 32 W.'L. B. 200: Bailey v. Hughes, 35 O. S. 597; Bartholomew v. Lutheran, 35 0. S. 567; Clark v. Hubbard. 8 O. 382; Ryan v. O'Con- nor, 41 0. S. 368; Lusby v. Jones, 31 W. L. B. 70: Jenkins v. Artz, 7 N. P. 371 : Raymond v. Toledo. 57 O. S. 271; Howard v. Levering, 8 C. C. 614. 28 Winemiller v. Laughlin, 51 O. S. 421: Lake etc., v. Cleveland. 32 W. L. 1'.. 206; Bailey v. Hughes, 35 O. S. 597; Reynolds v. Bank, 112 U. S. 405: Darlington v. Compton, 20 C. C. 242. 29Waterson v. Cry, 5 C. C. 347; Baldwin v. Keese, 8 A. L. R. 556; Graham v. Purgraf, 12 0. C. D. 747: affirmed in 5!) O. S. 603: Lake, etc.. v. Cleveland. 32 W. L. B. 206; Hubbard v. Clark. 8 0. 382: Har- vey v. .(ones. 1 D. 65; Cen'l Code, §§11901, 11002 (11. S. §5770, §5780) : Bailey v. Hughes. 35 0. S. 599; Bartholomew v. Lutheran, 35 0. S. 567: Bramlege v. Winder, 6 0. Dec. 310. Failure tu answer con- fuses allegations of the petition. McKenzee v. Pencil. 15 0. S. 1G2. 675 THE ACTION TO QUIET TITLE. $574 entitled to a decree. 30 If any one be in possession of land under color of title, any one claiming adversely to him must prove a better title in order to justify disturbing him in his possession. So one in possession of land, though he is not able to show any title, may have trespass against a stranger who enters upon it. Possession is a condition precedent to a right of action. Therefore, the possession must be averred in a petition, and this must be proven. No averment as to title is necessary under Gen'l Code, § 11901 (R. S. § 5779). An averment of possession in words of the statute is sufficient. 31 The statute has ex- tended the general equity doctrine, giving bills of peace, where the action is to quiet title, more of the character of lulls quia timet, thus enabling any person in possession, by himself or tenant, of real property even by an equity title in fee or for a term, to maintain a petition to quiet title. 32 A plaintiff in possession of real estate, and having the later legal title, may ask the aid of equity, under the statute, to quiet the title against those pretending to claim. 33 It was held by the court that the decision of this court in Douglas v. McCoy, 5 O. 522, was to supply this precise omission (the re quirements that plaintiff must first establish his right at law), that our several statutory provisions on the subject were enacted. These provisions are found in the acts of 1810. 182-1, and 1831, substantially as in the 557th section of the code, now Section 5779 of the statute, with the difference that by the latter, possession alone, instead of legal title and posses- sion, is declared to be a sufficient basis for the action. The only effect of this provision of the statute is to substitute the plaintiff's possession for the establishment of his right by •Hals at law. On all other essentials the remedv by bill of ™\Yaterson v. Fry. 5 C. C. 354. 3i Lusby v. Jones. 31 W. L. B. 70: citing 1 Dis. 65; 34 O. S. 420: 2 Yaple's Code Pr. 773: 1 Wash- burn on Real Property, 35 : 2 Bates' PI. and Pr. 65-A. 32Maines v. Henkle, 3 W. L. M. 597: citing 2 Story Equity. §825: Lowe v. Lowery, 4 O. 77. 33 Douglas v. Scott. 5 O. 105. In the bill under the statute, for quiet- ing possession, the complainant must set forth and prove actual possession. This was under t lie statute as it stood in 1838. Hub- bard v. Clark, 8 O. 382. In an- other case it was held that after the right to real estate has been satis- factorily established at law. equity will quiet the title against any fur- ther disturbance. It is not ma- terial what number of trials have been had. whether two or more, so that the right be satisfactorily es- tablished. Marsh v. Reed, 10 O. 347. §§575,576 MEBWINE ON REAL ACTIONS. 676 peace remains the same as under the old practice. 34 It has been held that the possession of a vendee, under a bond for a deed, is a sufficient possession of the vendor to entitle him to maintain a bill quia timet. 35 Sec. 575. The service on defendants actual and constructive. The defendants are served with summons as in other actions, and non-resident defendants whose residence is known and unknown are served as in other cases by publication, ami where it appears by affidavit that the name and residence of ,in unknown heir can not be ascertained, he may be served by publication. Service by publication upon an unknown heir in the alternative is insufficient. The service by publication can not be had upon the unknown heir of a living- person. 3S Sec. 576. The nature and effect of the decree quieting title. The decree quieting title, like every other judgment or de- cree of a court, is not subject to collateral attack. It can be impeached only by an action brought for that purpose. The action is not merely to confirm possession; it goes much farther; it determines all matters in dispute between the par- ties in the action as to the title. The action when successfully prosecuted sweeps away all of the liens and claims of the de- fendants and the judgment of the court is conclusive as to all of the questions within the issue, and which might have been litigated. 37 34 Collins v. Collins, 19 0. S. 470; troversy.' By tins it was not in- Harvey v. Jones et ah, 1 Dis. 65. tended to assert that the complain- \ possession adverse to the grantor ant himself must prove the land; at tin- time of the purchase is eon- for in considering the cross-bill of structive notice to the vendee of Hubbard v. Clark, the court held the occupant's title. Ibid. that Huhbard had the actual pos- 35 Thomas v. White, 2 O. S. 540. session —quired by the statute, al- It was -aid by the court, by Thur- though the fact was that the land, man. Judge: "We are of opinion or at least some part of it. was in that the complaint shows a suffi- the actual occupancy of his tenant-. c jen1 pi ssession to entitle him to In the remark by the court. 'Hub- maintain a hill f the statute re- 86 Archer v. Brockschmidt. 5 X. lating to such hill-, said: 'By this P. 349; Land) v. Boyd, t C. C. 499; section of the law. a complainant. Winemiller v. Laughlin, 5] o. S. 421. in order to maintain his hill, mn-t " Desnoyers v. Dennison, 19 C. C. show not onlv thai he is vested with 320: Wabash, etc., v. Medo, 7 N. the legal title, bui of the actual P. 198. See No. 433 for form for possession of the land under eon- decree. 677 THE ACTION TO QUIET TITLE. § § 577, 578 Sec. 577. Trial by a jury may be demanded in the action. Cases may arise under our statute in which the parties may have a constitutional right to have the issues of fact tried by a jury. Should such cases arise, the court is competent to au- thorize such trial, either in the case, or by requiring a separate action to be brought before the rendition of a final decree. 38 Sec. 578. Injunction against defendants may be granted, when. If the plaintiff, in his action to quiet title has made out a ease entitling him to relief against claims of defendants in the action, he may obtain a perpetual restraining order against the alleged claims of the defendant, provided he has asked in his prayer for relief, an injunction. 30 38 Rhea v. Dick, 34 0. S. 425 Elithorpe v. Buck, 17 0. S. 72 Gladwell v. Hume, 18 C. C. 845 but see Skerrett v. Presbyterian, 41 0. S. 606. 39 Bartholemew v. Lutheran, 35 0. S. 567; Marsh v. Reed, 10 0. S. 47; Pittsburg v. Ry., 20 C. C. 561. FORMS. PROCEEDINGS QUIETING TITLE AGAINST UNKNOWN HEIRS. FORMS. FORMS 428. The petition. 432. 42!). The affidavit for service by 433. publication. 434. 430. Entry ordering service by publication. 435. 431. The service by publication. No. 428. The petition in such case. Court of Common Pleas, The proof of publication. The decree quieting title. Another form for a petition in the action to quiet title. Another form for decree quieting title. County, Ohio. S. J. B. Plaintiff, vs. No- The Unknown Heirs at law and Devisees (if any there are) of J. D., Deceased, the Unknown Heirs at law and Devisees (if any there are) of E. D., Deceased, the Unknown Heirs at law and Devisees ( if any there are) of E. B. D.. Deceased, and the Unknown Heirs at law and Devisees (if any there are) of J. W., Deceased. Defendants. The plaintiff is the owner in fee simple and in actual and peaceable possession of the following described real estate situated in the County of , in the State of Ohio, and in the City of — , to-wit: (Here insert description of real estate). On or about the day of -, A. D. 18- -. J. D., the ancestor of part of the defendants herein, became the owner and seized in fee simple by patent from the United States (Here insert description of real estate) . On or about the — — — — day of ■ ■ — , A. D. 18 , the said -I. D. conveyed an undivided one-fourth part of said real estate, together with other real estate, to E. D. and E. B. D., the ancestors of part of the defendants herein, which said conveyance is recorded in Deed Book , page of said — County records. 678 679 FORMS. At some time subsequent t-> said first day of , A. D. 18 , and prior to the day of , A. D. 18 , by deed, or deeds, duly executed and delivered, the said J. D., E. D. and E. B. D. sold and conveyed to one D. B. the following real estate, to-wit: (Here describe it ) . Said deed or deeds for tracts aforesaid were not recorded, or if recorded, the record thereof has been destroyed. The original deed or deeds have been lost and cannot now be found and recorded. On the day of , A. D. 18 , said D. B. and E. B., his wife, duly sold and conveyed said real estate so conveyed to him as aforesaid, together with other real estate, to one W. D. by deed of general warranty, duly executed and delivered, which said deed was filed for record on the day of , 18 , and was duly recorded in Deed Book , page of said County records. The said W. D., on said day of , A. D. 18 , took actual and absolute possession of said real estate, and the plaintiff herein holds and owns the real estate first described by direct, clear and inde- feasible chain of title from said W. D. by deeds of conveyances, duly executed and delivered by the grantee of said W. D. and his assigns and those holding under and through him. Possession actual, continuous, ad- verse and notorious was taken and held by each of said grantees of 6aid title, from their grantors respectively under their said grants of said premises from said D. B. down to the plaintiff herein. Plaintiff's chain of title to said real estate, beginning with said con- veyance from said D. B. to said W. D., down to the present date, is unbroken and perfect, and plaintiff holds and owns said real estate through and under said W. D. and those successively holding under him ever since said day of , A. D. 18 , and such possession has been ever since wholly adverse to the claims and interest of the defendants herein, and each of them, and their respective ancestors. Plaintiff herein has made diligent search for the heirs at law and devisees of defendants herein, but has been unable to find or ascertain the names and residences of them, or either of them, or any trace thereof. The defendants, the unknown heirs at law and devisees of J. W., de- ceased, claim an estate and interest in said plaintiff's land herein first descril>ed, or some part thereof, the nature and extent of which said plaintiff is unable to state and the said plaintiff asks that the said defendants be compelled to answer in this action as to the nature and extent of their said claims or interest, or be forever barred and enjoined from in any way asserting or claiming an estate or interest in said plaintiff's real estate. The other defendants herein claim an estate or interest in said plaintiff's real estate adverse to said plaintiff's rights therein. By reason of the premises a cloud is cast upon the title of said plaintiff's real estate, which greatly and unjustly depreciates the value. Wherefore plaintiff prays that the defendants herein may be compelled to set forth their interest in said real estate, if any they have; that the claims of said defendants and each of them may be adjudged to be null and void; that said plaintiff's title may be quieted against said defendants' MERWINE ON REAL ACTIONS. 680 claims, and they and each of them be enjoined from asserting such claim against said real estate; that the cloud thereon may be removed, and for such other and further relief as equity and the nature of the case may require, and to the court may seem just, necessary and proper. Attorney for Plaintiff. (This petition is verified as in other cases.) No. 429. The affidavit for service by publication. (Same caption as in the petition.) State of Ohio, County, ss.: , of lawful age, being duly sworn, says that he is the attorney of record of S. J. B., the plaintiff in this action; that the said S. J. B. is a non-resident of "County, Ohio, aforesaid; that the names and residences of the heirs at law and devisees (if any there are) of J. D., deceased, of the heirs at law and devisees (if any there are) of E. D., deceased; of the heirs at law and devisees (if any there are) of E. B. D., deceased, and of the heirs at law and devisees (if any there are) of J. W., deceased, are each and all of them unknown to said plaintiff; that said names and residences, or either of them, cannot with reasonable diligence be ascertained, and that this cause of action is one of those mentioned in § 5053, R. S. of Ohio. Sworn to before me and subscribed in my presence by said on this day of , A. D. 18 . "Notary Public in and for County, Ohio. No. 430. Entry ordering service by publication. On motion of plaintiff, by her attorney, and it appearing from the affidavit of her said attorney that she is a non-resident of said County, Ohio; that the names and residences of the heirs at law ami devisees (if any there are) of J. D., deceased; of the heirs at law and devisees (if any there are) of E. D., deceased; of the heirs at law ami devisees (if any there are) of E. B. D., deceased, and the heirs ;1 t law and devisees (if any there are) of J. W., deceased, are each and all unknown to the said plaint ill', and their places of residence cannot with reasonable diligence lie ascertained; It is hereby ordered by the court that as to said heirs and devisees, defendants herein, service be made in this action by publication for six consecutive weeks, in manner prescribed by the statute in case of non- resident defendants. No. 431. The service by publication. The unknown heirs at law and devisees (if any there are) of J. Y).. deceased, the unknown heirs at law and devisees (if any there are) of 681 FORMS. K. D., deceased, the unknown heirs at law and devisees (if any there are) of E. B. D., deceased, and the unknown heirs at law and devisees (if any there are) of J. \Y., deceased, will take notice that on the day of , 18 , S. J. B. filed her petition in the Court of Common Pleas of County, Ohio, in case Xo. , against them and each of them, setting forth that she is the owner in fee simple and in actual and peaceahle possession of the following described real estate, situated in the County of , in the State of Ohio, and in the City of , to-wit: (Here describe real estate); that on or about the day of , A. D. 18 , J. D., the ancestor of part of the defendants therein, became the owner and seized in fee simple, by patent from the United States, of the following real estate, to-wit: (Here describe it), which said patent is recorded in Deed Book , page of said County records; that on or about the day of , A. D. 18 , the said J. D. conveyed an undivided part of said real estate, together with other real estate to E. D. and E. B. D.. the ancestors of part of the defendants therein, which said conveyance is re- corded in Deed Book , page of said County records; that at some time subsequent to said day of , A. D. 18 , and prior to the day of . A. D. 18 , by a deed or deeds duly executed and delivered, the said J. D., E. D. and E. B. D duly sold and conveyed to one D. B. the following real estate, to-wit: (Here describe it) ; that said deed or deeds for said tract was not recorded, or if recorded, the record thereof has been destroyed: that on the day of . A. D. 18 , the said D. B. conveyed said real estate last de- scribed to one W. D. ; that said W. D., on last mentioned date, took actual and absolute possession of the land so conveyed to him: that plaintiff holds and owns said real estate herein first described, under and through said W. D. by a clear and indefeasible chain of title; that plaintiff through the said W. D. and his assignees and grantees, has had actual, open, notorious, continuous, adverse and exclusive possession of plaintiff's said real estate herein first described, ever since said day of , A. D. 18 . It is further set forth in said petition that the defendants therein, the unknown heirs at law and devisees (if any there are) of J. W., deceased, claim an estate or interest in said plaintiff's said real estate, or some part thereof, the nature and extent of which plaintiff is unable to state, and that the other defendants claim an interest in said real estate adverse to said plaintiff's rights therein, by reason whereof a cloud is cast upon the title to said premises. The prayer of said petition is that the defendants may be compelled to set forth their intersts in said real estate; that said claim of said de- fendants may be adjudged to be null and void: that plaintiff's title to said real estate may be quieted against said defendants' claims, and they be forever enjoined from asserting such claim against said land: that the cloud thereon may be removed, and for such other and further relief as equity and the nature of the case may require and to the court may seem just and proper. Said defendants are required to answer said petition on or before the 'TERWINE ON REAL ACTIONS. 682 (j a y f , A. 3). 18 , or judgment will be taken against them. > S. J. B., Plaintiff. No. 432. The proof of publication. State of Ohio, County, ss.: , being duly sworn, deposeth and saith, that the notice, of which a true copy is hereunto attached, was published in the , a daily newspaper printed in and in general circulation in said — County, Ohio, once a week for six consecutive weeks, commencing , 18 , to-wit: on . • Sworn to and subscribed before me, this day of 18 , as witness my hand and seal of office. Notary Public in and for County, Ohio. No. 433. The decree quieting title. (Same caption as in the petition.) This day came the plaintiff, and the defendants and each and all of them made default, and came not, and thereupon this cause was by order of the court assigned for hearing, and came on regularly to be heard, and the same was heard upon the petition and the evidence adduced, and was submitted to the court; and on consideration whereof, the court being fully advised in the premises, doth find that the defendants herein, and each and all of them, have been duly and legally served by publication with notice of the pendency of this action, and the object and prayer of said petition, and that said defendants and each and all of them are in default for answer and demurrer to the petition herein and that the allegations of said petition are confessed by said defendants to be true, and that said allegations of said petition are in fact true, and the court doth further find that the plaintiff is the owner in fee simple and in actual and rea- sonable possession of the premises first described in said petition, to-wit: (Here describe it); that prior to the day of , 18 , said J. D., E. D., and E. B. D., each then in full life and since deceased, sold and conveyed in fee simple to said D. B. mentioned in said petition by a good and sufficient deed of general warranty duly executed and de- livered, the following described real estate mentioned in said petition, to- wit: (Here describe it) ; that said deed and the record thereof has been lost and destroyed; that the aforesaid real estate, now owned and possessed by plaintiff was. and is contained in, and was and is part and parcel of the aforesaid tract of real estate so sold and conveyed by said J. D., deceased, to said D. B. as aforesaid; that plaintiff holds and owns the real estate in said petition first described by direct, clear and indefeasible chain of title from said D. B. and those holding under and through him; that possession actual, continuous, open, adverse and notorious was taken and held by each of the grantees of said title from their grantors respec- tively under their said grants of said premises from said 13. B. down to 683 FORMS. the plaintiff herein; that plaintiff and those to whom he holds and claims have been in actual, open, notorious, adverse and continuous posses- sion of said premises ever since said day of , A. D. 18 , up to this time; that at the time of the beginning of this action plaintiff was and now is in full possession of the real estate first described and had and has the legal estate therein in fee simple, and was and is entitled to the possession of same; that neither the defendants nor any of them, have any estate, interest, claim or title of, in or to said plaintiff's real estate, or any part thereof; that plaintiff is entitled, and ought to have her title to said premises herein first described, and her possession thereof quieted as against each and all of said defendants as prayed for in her petition. It is therefore ordered, adjudged and decreed by the court that 'the title and possession of said plaintiff to all and singular premises in the petition described, (Here describe it) be and the same are hereby quieted as against the defendants, and each and every one of them, and all persons claiming under them or any of them. Said defendants are hereby ordered to convey said premises to plaintiff herein, by a good and sufficient deed in fee simple, within ten days from the entry of this decree, or in default thereof, this decree shall operate in such conveyance, and said defendants herein and each of them are for- ever enjoined from setting up any claim to said real estate, or any part thereof, adverse to the title and possession of said plaintiff, her heirs or assigns thereto, and it is further ordered that the plaintiff pay thw costs herein taxed at $ . No. 434. Another form for petition to quiet title to real estate. Court of Common Pleas, — County, Ohio. , Plaintiff, vs. Petition. , Defendant. Plaintiff is seized in fee simple, and is in actual possession of the following described real estate, in which said defendant claims an estate and interest adverse to the plaintiff, to-wit: (Here give pertinent descrip- tion of the real estate.) Plaintiff derived his title tn said lands and tenements under the following clause contained in the last will and testament of , deceased : "I give, devise, and bequeath to my brother. , (the plaintiff), my farm, situate in the County of , aforesaid, on the road leading from to ■ — , containing about one hundred and acres" (the lands above described ) . "It is my will that if my son, . should survive my brother, , aforesaid, that said farm, at the death of my said brother, shall go to my son, ." Said son. , is dead, and the said defendant, , who claims under and through him, avers, and gives out in words and speeches, that the plaintiff has but a life estate in said premises, and that the defendant owns the remainder, after his decease, in fee simple, to the MERWINE ON REAL ACTIONS. 684 great injury and damage of the plaintiff, and to his said title and pos- session. Wherefore plaintiff prays that he may he adjudged the owner in fee simple of said real estate, free from all claims of an estate or interest therein of said defendant, by reason of the premises, for costs and for all relief to which, upon the facts of the case, he may be entitled in law or equity. . Attorneys for Plaintiff. (This petition should be verified.) No. 435. Another form for judgment and decree of court in the action to quiet title. (Same caption as in the petition.) This day came the said parties by their respective attorneys, and there- upon this cause came on to he heard by the court upon the pleadings and the evidence adduced by the parties respectively, and was argued by counsel; and upon consideration thereof and on being fully advised in the premises, the court does find the plaintiff' is entitled to the relief as prayed for in his petition. It is therefore ordered, adjudged and decreed by the court, that said plaintiff', in his said title to and possession of said premises, be and he is hereby forever quieted, as against the said claims of the said defendant of said estate and interest in said real property described in the petition herein adverse to him; and also that the plaintiff recover against said defendant his costs in this behalf expended, taxed to be $ . [Note: Both the foregoing forms adapted from Yaple's Code Plead- ings. Subject: Action to Quiet Title.] CHAPTER XIX. THE LAW AND FORMS IN THE ACTION TO RECOVER POSSESSION OF REAL ESTATE— THE OCCUPYING CLAIMANTS' LAW. SECTION. 579. The nature of the action to recover possession of real estate. 580. Petition in the action for pos- session of real estate. 5S1. Petition by tenant in common against a co-tenant. 582. Answer to the petition in ejectment. 583. The recovery when right ter- minates during the action. 584. Who may maintain the action. 585. Plaintiff's title. 58G. The proof of title required in the action. 587. Neither party will be permit- ted to contest a prior deed, when. 58S. Adverse possession and the statute of limitation-. 589. The relief that may be ob- tained in the action. 500. The causes of action that may be joined in the suit to re- cover possession of real estate. 501. The action triable to a jury. 502. In the action for the recovery of the purchase money. vendee may recoup for the SECTION. amount of liens and en- cumbrances, when. 593. Parties may have benefit of occupying claimant's law, when. 504. In what cases occupying claimant to be paid for im- provements. 505. Title under sale for taxes suf- ficient to protect occupant. 50G. Entry of claim for improve- ments. 507. Regular jury to act — Duties of jury. 508. Sheriff to summon talesmen, when. 500. Setting verdict aside — Chal- lenge — Cost-, if too many witnesses called. 600. Judgment and execution on verdict for plaintiff. GUI. Proceedings if verdict is for occupying claimant. 602. A writ of possession will is- sue, when. 603. When claimant elects to re- ceive value of the land. 604. When occupant may have an action for the title. Sec. 579. The nature of the action to recover possession of real estate. Much of the law of ejectment in this State has become obso- lete, and consequently of no great use t<> the practitioner, except that some knowledge of the same is necessary to a com- plete understanding- of some of the terms used in the present 685 § 579 MERWINE ON REAL ACTIONS. 686 law. We here give a ioncise statement of the old procedure to get possession of real estate. It is from the pen of an able jurist who practiced in this State before the adoption of the code: "The old English real action was so intricate that eject- ment, an action by which a dispossessed tenant recovered his possession for the term of his lease against the ejector, was made to subserve its purpose; but the actual making of a lease, putting the lessee in possession by the lessor and the occupant ejecting him by retaining possession, proved to be too formal and troublesome. During the Protectorate, Lord Chief Justice Rolle, by fictions of law, obviated these diffi- culties. It was assumed that the claimant of the land in dis- pute had made a lease of the premises to a fictitious lessee, usually named John Doe — the term being stated for such a number of years as not to expire during the litigation — and put the lessee. John Doe. in possession, when another fictitious personage, named commonly Richard Roe, called the casual ejector, entered upon the premises and ousted John Doe from the possession, to recover which, for such term, from Richard Roe. John Doe, on the demise of the claimant, brought the; action. The lands were not specifically described as is re- quired by our code. A stream of water could not be declared for. but was described as land covered by water. Notice of the action was served upon the person found in possession of the land; and if a tenant, he could notify his landlord, and either could defend as tenant in possession. But as the plain- tiff never proved the lease to John Doe, the entry and ouster by Richard Roe, the tenant in possession, to be let in to defend, was obliged to enter into the 'consent rule." by which he admitted such fictitious lease, entry, and ouster, which left for trial only the question who was entitled to the possession. The Legal title, as contradistinguished from the equity title, drew to itself the legal right to possession, and hence the legal title, and the legal title only, could be tried in such action. The plaintiff, as now. had to recover upon the strength of his title, nol on the weakness of the title of the defendant. Out- standing legal title in a third person was a good defense. After recovery of possession by judgmenl in ejectment, the rc;\] or nominal plaintiff could sue the real defendant in tres- pass to recover mesne profits, and for waste, which were, by 687 THE ACTION IN EJECTMENT. §580 our statute of limitations, recoverable for four years prior to the bringing of the action." 1 Before the adoption of the code, ejectment was the action to get possession of real estate under all circumstances. This was so since the organization of the State. It could be sus- tained in all cases in which the writ of right could have been sustained at common law. 2 Now the code regulates the action, and while the action is to recover possession of real estate, and while, in reality, there is no legal name for the action, it is usually called the action of ejectment. 3 Sec. 580. Petition in the action for possession of real estate. In an action for the recovery of real property, it is suffi- cient if the plaintiff state in his petition that he has a legal estate therein, and is entitled to the possession thereof, describ- ing the same as required by Gen'l Code, § 11344 (R. S. § 5095), and that the defendant unlawfully keeps him out of the posses- sion ; and it is not necessary to state how the plaintiff's estate or ownership is derived. 4 In an action to recover real estate, the property must be described with such certainty as will enable an officer holding an execution to identify it. 5 It has been questioned whether an action of ejectment may be maintained by the owner of a legal title, as against a de- fendant in possession by virtue of a land contract. However, a petition in such case which does not aver that plaintiff has complied with the terms of the contract on his part is defective. It is not necessary to allege in the petition what plaintiff's i 2 Yaple's Code Practice & Prece- dents. 74!i. As to possession before the code, see Ludlow v. McBride, 3 0. 240: Ludlow v. Barr, 3 O. 388; Devacht v. Newsome, 3 O. 57: Abram v. Will, 6 O. 164; Dresbach v. McArthur, 7 0. (pt.) 146; Win- throp v. Grimes, W. 330; Boal v. King, \V. 223: Barton v. Norris, 15 O. 408. 2 Lessee v. Hemphill. 3 0. 240. 3 1 Bates Pleading Parties and Forms, 425. "The code action is one rather in the nature of eject- ment than ejectment proper. Its code name is action to recover real estate, though more commonly called in digests, indexes, and reports, ejectment." Ibid. •♦Gen'l Code. § 11003 (P. S. §5781). Se<- No. 430 for form for the petition. See Xo. 437 form of answer containing a general denial. 5 Gen'l Code, §11344 (R. S. § 5005 ) . e Zoeter v. Lamson, 2 Cleve. 10. §§581,582 MERWtNE ON REAL ACTIONS. 688 tide is. It is sufficient, if it alleges that he has a legal estate in the real estate described in the petition. 7 It was held that a failure to make an averment in a petition in ejectment, that the defendant unlawfully keeps plaintiff out of the possession since a certain date, is not fatal where no objection was taken to the petition by motion or otherwise, until after verdict and judgment for the defendant, and 8 that a petition in ejectment was in proper form ; and not showing that it was apparently barred by the statute of limitations, it was not necessary for plaintiff to make averments therein to bring himself within any of the exceptions contained in the statute. 9 Sec 581. Petition by tenant in common against co-tenant. In an action by a tenant in common of real property against a co-tenant, the plaintiff must state, in addition to what is required in Gen'l Code, § 11903 (R. S. § 5781), that the defend- ant either denied the plaintiff's right, or did some act amount- ing to such denial. 10 Sec. 582. Answer to petition in the action of ejectment. It will be sufficient, in such action, if the defendant, in his answer, deny generally the title alleged in the petition, or that he withholds the possession; but if he deny the title of th-3 plaintiff, possession by the defendant will be taken as admitted, and when he does not defend for the whole premises, the answer must describe the particular part for which defense i> made, and the defendant may further set forth in his answer such other and further grounds of defense, counterclaim and set-off. as he has <>r might have in any other form of action, whether they arc such as have heretofore been denominate I legal or equitable, or both. 11 The general denial, il seems, is sufficient to raise almost any defense ,it the trial. Where the answer denies the title alleged rScallan v. Peslet, 2 C. S. C. R. ■' Forest v. Jelke 7 C. C. 23. 156; Smith v. Findlay, 2 Handy 70; io Gen"! Code, §11905 (R. S. McKinney v. McKinney, 8 O. S. 423 ; §5783). Winthrop v. Grimes, W. Smith v. Handy, 6!)'; Bliss Code 330; Penrod v. Danner, 10 O. 221; Pleading, §23. White v. Sayre, 2 < >. 111. sMiddleton v. Westenny, 7 C. C. « Gen'l Code, §11904 (R. S. 303. §5782). 689 THE ACTION IN EJECTMENT. § § 583, 584 in the petition, other defenses in the answer setting up title in the defendant have been held immaterial. 12 It is not necessary for a defendant relying on the statute of limitation, to specially set up the statute in answer. 13 An answer denying that plaintiff has a legal estate in, or is entitled to the possession of the real estate, or that defendant unlaw- fully keeps him out of the possession, will be regarded merely a denial of legal title in plaintiff. 14 Where plaintiff has the legal title, a defense grounded on an equitable title and right of possession under it in the defendant must be pleaded. 13 Sec. 583. The recovery when right terminates during the action. In an action for the recovery of real property, when the plaintiff shows a right to recover at the time the action was commenced, but his right has terminated during the pendency of the action, the verdict and judgment must be according to the fact, and the plaintiff may recover for withholding the property. 16 Sec. 584. Who may maintain the action. The possession of real estate may be obtained by one who recovers a judgment for breach of promise, and purchases the real estate of the judgment debtor who, pending the proceed- ings, fraudulently conveyed the same for the purpose of defeat- ing the collection of the judgment ; 17 by an heir who claims- under a will probated before a partition of real estate among the heirs who had conveyed their interest to another; 18 by a reversioner, where the life tenant forfeits the same for non- payment of taxes; 19 by a surviving husband, where it appears that a deceased wife at the time of her death owned the real estate in her own right, and no state of facts existing, barring 12 Rhodes v. Gunn. 35 0. S. 387; " McVeigh v. Ritenour, 40 0. S. Kyser v. Cannon, 29 0. S. 359. 107. Plaintiff claiming by a pur- is Winter mute v. Montgomery, 11 chaser at sheriff's sale is required to 0. S. 444. prove the judgment, the execution, 14 Bothe v. Railway. 37 0. S. 147; levy and sale. Bank v. White, but see Darling v. Hippie, 12 0. C. Wright. 51. D. 754. is Woodbridge v. Banning. 14 0. is Powers v. Armstrong, 36 0. S. S. 328. 357. J9 McMillan v. Robbing, 5 0. 28. isGen'l Code, §11906 (R. S. §5784). § 584 MERWINE ON REAL ACTIONS. 690 the husband's right of curtesy therein, and the land being in the possession of another; 20 by a grantor who has conveyed real estate to a grantee upon condition that a grist mil and saw- mill shall be erected and maintained on the premises, the gran- tee failing to perform and remaining in possession ; -' by a mortgagee from a mortgagor in possession, the mortgage having become due by condition broken; " 2 by a grantee from a gran - or, the deed having been delivered and the grantor is in pos- session, -efusing to admit the grantee into possession ; - 3 by a vendor from a vendee in possession before a conveyance, the vendee being clearly in default; 24 by a lawful trustee against persons in possession claiming to be trustees; 25 by a mortgagee upon a mortgage, the real consideration for which being an agreement not to prosecute the son of the defendant for a theft; 26 by a landlord to recover possession of leased premises, upon a forfeiture of the lease for non-payment of rent, and 27 by the real owner of land against one in possession under defec- tive tax title. 28 The action can not be maintained by the owner of land, who. by his written consent, agreed to give a railroad company the perpetual right of way through the same for a sum paid to him, with a provision in the contract, that the company should fence the same, and having failed to construct it; 29 by a wife against a third person, claiming adverse possession, the husband having a freehold in the lands wi'h present right of exclusive enjoyment, but which has been lost by adverse pos- session, the wife's reversion being postponed until the termina- tion of coverture; and" by a mortgagee, who claims under a past due and defectively executed mortgage, the certificate of acknowledgment not showing by whom the instrument was acknowledged/" 20 Hall v. Hall, 32 0. S. 184. 2c Doe v. Roll, 7 0. (pt. 2) 71; 21 SjKTr; v. Pond. 5 0. 388. Williams v. Englebright, 73 0. S. 22 Bradfield v. Hale. 67 <>. S. 317. 383. affirming 21 ('. ('. 184. See also Ely 27 Adams v. Parnell, 11 C. C. 567. v. McGuire, 2 0. 223. • Wallace v. Dayton, Dayton, 410. 23 Jones v. Tinimons. 21 0. R. 50fi. 20 Hornback v. Cincinnati, etc., 20 24Coggahall v. Marino Bank, 63 O O. S. 81. S. 88. 3<> Thompson v. Green, 4 O. S. 217. 25 Harper v. Crawford, 13 O. 13; 31 Smith v. Hunt, 13 0. 260. Monre v. Burnett, 11 0. 334. 691 THE ACTION IN EJECTMENT. §§ 585-587 Sec. 585. Plaintiff's title. Plaintiff must recover on the strength of his own title and not upon the weakness of that of his adversary. 3 - A possessing title is a sufficient title as against a mere in- truder or one who can not show a better right. 33 And a de- fendant in possession will not be -disturbed until a better title is shown. 34 Sec. 586. The proof of title required in the action. In an action for recovery -of possession of land from a defendant claiming title by adverse possession, the plaintiff is required to show his claim of title to the land in dispute by a chain of conveyances from the government, or from a grantor proved to have been in possession of the land in dis- pute when he executed the conveyance therefor. 35 It has been said that "a prima facie case is made by showing a conveyance to plaintiff -or one of his grantors in the chain of title, by one then in possession and occupancy of the land. If this is not done, he must run his title by deed or other necessary proof, to some one shown or admitted to be the common source of title to him and the defendant and in default of there being such common source of title, back to the govern- ment." 36 Sec. 587. Neither party to the action will be permitted to con- test a prior deed, when. In an action to recover possession of real estate which is claimed by both parties by a title coming from a common 32 McArthur v. Gallagher, 8 0. 512: Waite v. Feist, etc., 6 X. P. 434: Seallon v. Porter, 156; Middle- ton v. Westenney, 7 C. C. 393; Boomeishine v. Stucklayer, Dayton, 38. 33 Davacht v. Newson, 3 0. 57; Ludlow v. Parr. 3 O. 388; Mudlow v. McBride, 3 0. '240; Abram v. Will. 6 O. 164; Dresbach v. McAr- thur. 7 O. (pt. 1st) 14fl; Winthrop v. Grimes W. 330. 34 Woods v. Prudell W. 507. 3.-> Heller v. Hawley, 8 C. C. N. S. 265. 36 Middleton v. Westenney. 7 C. C. 208; Blake v. Davis, 20 * 0. 239; Hart v. Johnson, 6 0. 87 ; Newell on Ejectment, 585; Cunningham v. Harper, W. 366. Deed to plaintiff in wrong name, by proof that he is person named therein is competent. Starr v. Wright, 20 0. S. 99. Title may be made through a last unre- corded deed. Blackburn v. Black- burn, 8 0. 81. Where both parties claim from grantors by same name, parol proof may be given as to which grantor had the right to con- vey. Avery v. Stites, W. 56. §§ 588-590 MERWINE ON REAL ACTIONS. 692 source, neither party will be at liberty to contest the deed from which both claim. 37 Sec. 588. Adverse possession and the statute of limitations. The adverse possession, to be a defense to the action of one who otherwise would be entitled to the possession, must be actual, open, exclusive and continuous for twenty-one years prior to the commencement of the action. The claim to the land must have been held by the one in possession in his own right and adverse to the whole world, and his attitude must have been that of one proclaiming to all the world that the land is his. 38 Sec. 589. The relief which may be obtained in the action. Plaintiff may ask and obtain possession of the real estate, damages for the rents and use of the same, an injunction from committing irreparable damage to be done to the real estate by an insolvent defendant. 39 Sec. 590. The causes of action that may be joined in the suit to recover possession of real estate. The code allows claims to recover real property, with or without damages for the withholding thereof, the rents and profits of the same, and the partition thereof to be joined in one action. 40 But the causes of action so united must not re- quire different places of trial, and except as otherwise provided must affect all of the parties to the action. 41 37 Doe v. Dugan, 8 0. 100; Doug- lass v. Scott, 5 O. 104; Ward v. Mcintosh, 12 0. S. 231; Presbyte- rian v. Pickett, W. 57; Longworth v. Wolfinger, W. 216; Devacht v. Newsome, 3 0. 57; Hart v. John- son. 6 0. s7: Bothe v. Railway, 37 0. S. 147. 38 McAllister v. Hartzell, 00 0. S. 83: Herbert v. Bates, 13 W. L. B. 565; Fowler v. Whitehead, 2 0. S. 271: Barton v. Morris, 15 O. 408; Forest v. Jelke, 7 C. C. 25: Robin- son v. Fife. 3 0. S. 551; Darling v. Hippie, 12 0. C. D. 734; affirmed in 60 0. S. .-,!ii : McNiely v. Langan, 22 0. S. 32; Avery v. Baum, W. 576; Hubst v. Bates. 13 W. L. B. 565: Williams v. Burnett. W. 53; Thompson v. Green, 4 0. S. 223; Stockwell v. Coleman, 10 0. S. 35; Brodtield v. Hale, 67 0. S. 307; Ries V. Wolf, 18 C. C. 352; Forest v. Jelke, 7 C. C. 23 ; Winter- mute v. Montgomery, 11 0. S. 442; Haymaker v. Haymaker, 4 0. S. 272: Ford v. Laugel, 4 0. S. 464; State v. Ry.. 1 N. 5202: Moore v. Armstrong, 10 0. 11; Whitney v. Webb, 10 O. 513: Bobo v. Richmond, 25 O. S. 115. 39 Raymond v. Railway, 57 0. S. 282. 40 CJen'l Code, § 11306 (R. S g 5058). « Gen'l Code, § 11307 (R. s §5059). 693 THE ACTION IN EJECTMENT. §§591,592 In the action there can he united the cause of action for the possession of the real estate, and a cause of action for the cancellation of conveyances made by plaintiff without consid- eration on an agreement not carried out by the defendant. Sec. 591. The action triable to a jury. The action by statutory requirement is tried to a jury. The issues of fact arising for the recovery of specific real property shall be tried to a jury, unless a jury trial be waived, or a reference be ordered. 42 No right of appeal exists and the fact that a jury is waived by the parties and the case tried by the court does not alter the rule. The action must be tried by a jury, if the principal relief sought is the recovery of the possession of real estate, and in the action an injunction is asked and one of the objects of the petition is to prevent a multiplicity of suits, and another, to establish a disputed boundary line. 43 Sec. 592. In an action for the recovery of purchase money vendee may recoup amount of liens and incumbrances, when. In actions for the recovery of purchase money of real estate, by vendor against vendee, it is competent for such vendee, notwithstanding his continued possession, to set up, by way of counterclaim, any breach of the covenants of title acquired by him from the plaintiff, and to make any person claiming an adverse estate or interest therein, party to the action ; and upon the hearing he will be entitled to recoup against the plaintiff's demand, the present worth of any existing lien or incumbrance thereon; and if the adverse estate or interest of the claimant is an estate in reversion or remainder, or contingent upon a future event, the court may order the vendee, with his assent, to surrender the possession to his vendor upon the repayment of so much of the purchase money as has been paid thereon, with interest, or direct the payment of the purchase money claimed "in the action, upon the plaintiff giving bond in double the amount thereof, with two or more sureties, to be approved by the court, for the payment of the same, with interest, if the *2Gen'l Code, §11370 (R. S. « Raymond v. Railway, 57 0. S. §5130). Raymond v. Railroad, 57 280. O. S. 280. §§ 593, 594 MERWINK ON KEAL, ACTIONS. 694 defendant or his privies be subsequently evicted by reason of the defect. 44 Sec. 593. Parties may have benefit of occupying claimant law, when. Parties in an action for the recovery of real property may avail themselves, if entitled thereto, of the benefit of the stat- utes for the relief of occupying claimants of land. Sec. 594. In what cases occupying claimant to be paid for im- provements. A person in the quiet possession of lands or tenements, and claiming to own the same, who has obtained title to, and is in possession of the same without fraud or collusion on his part, cannot be evicted or turned out of possession by any person who sets up and proves an adverse and better title, until the occupying claimant, or his heirs, are fully paid the value of all lasting and valuable improvements made on the land by him, or by the person under whom he holds, previous to receiving actual notice, by the commencement of suit on such adverse claim whereby such eviction may be effected, unless such occu- pying claimant refuse to pay to the person so setting up and proving an adverse and better title the value of the land, with- out improvements made thereon as aforesaid, upon demand of the successful claimant, or his heirs, as hereinafter provided, when — 1. Such occupying tenant holds a plain and connected title, in law or equity, derived from the records of a public office; or, 2. Holds the same by deed, devise, descent, contract, bond or agreement, from and under a person claiming title as afore- said, derived from the records of a public office, or by deed duly authenticated and recorded; or, 3. Under sale on execution, against a person claiming title as aforesaid, derived from the records of a public office, or by deed duly authenticated and recorded; or. 4. Under a sale for taxes authorized by the laws of this State, or the laws of the territory northwest of the river Ohio ; or, 5. Under a sale and eonveyance made by executors, admin- "Genl ('<»(].-. §11902 (R, S. §5780). 695 THE OCCUPYING CLAIMANTS LAW. §594 istrators or guardians, or by any other person or persons, m pursuance of an order of court, or decree in chancery, where lands are or have been directed to be sold. 45 This statute for the relief of occupying- claimants operates only in cases where the defendant in cpiestion has befen evicted by a title both paramount and adverse. Where a person in the quiet possession of land under an agreement for its pur- chase, made with the equitable owner, is evicted by the trustees holding: the legal title, he is not entitled under the statutes to compensation for lasting and valuable improvements made upon the premises, his possession, 'in such case, not being under an adverse title within the meaning of the statutes. 4 ' 1 Mere notice of a defect in the title, or any claim successfully asserted, is, of itself, not sufficient to prevent the occupant from asserting his right to valuable and lasting improvements made on the property. In such case he must have purchased in good faith and made the improvements under the honest belief that the land was his own. 47 If a court awards partition among heirs, and the occupying claimant is in possessiozi of the land whereon he has made valuable and lasting improvements, a court will not enjoin the proceedings in partition for the reason that if the heirs bring their action to get possession, the party in possession can then claim relief under the statute. 48 The claimant can recover for improvements made by himself, or the person under whom he claims, before his title com- menced, as well ns for those made afterwards. 49 The statute was intended for those who act in good faith, and consequently a tenant for life, obtaining his title and possession with full knowledge of the quantity of his estate, can not> as *5Gen'l Code. §11908 (R. S. §5780). See No. 439 and follow- ing for forms and procedure. *« Preston v. Brown, 35 O. S. IS. 47 Harrison v. Carter, 11 O. S. 339; Beardsley v. Chapman, 1 O. S. 119. *« Penrod v. Danner, 19 0. 218. The office of township trustees, in which the leases of school lands made by them are recorded by the clerk cf the township, is, as to such leases, a public office within the occupying claimant's law. Hart v. Johnson, 6 O. 540. 49 Shaler v. Magni, 2 0. 235 ; Davis v. Powell, 13 O. 308. But not for improvements made on lands outside of his title deed. Waldron v. Woodcock, 15 O. 13. Notice of the application for the benefit of this law must be given. Patterson v. Prother, 11 O. 35. § § 595-597 MERWINE ON REAL ACTIONS. 696 against a reversioner or remainder-man, claim the benefits of the statute. 50 A purchaser at an administrator's sale will be protected; 51 and so will the purchaser in possession under sheriff 's sale, if such sale is void, as against an earlier lien. 52 The relief can not be claimed under the statutes Avhere a vendee, acting under a mutual mistake in his deed describing the wrong tract of real estate, enters thereon and improves it. 33 Sec. 595. Title under a sale for taxes sufficient to protect occupant. \ The title by which the successful claimant succeeds against the occupying claimant, in all cases of lands sold for taxes by virtue of any law of this State, or the laws of the territory northwest of the river Ohio, will be considered an adverse and better title, under the provisions of the last section, whether it be the title under which the taxes were due, and for which the land was sold, or any other title or claim ; and the occupying claimant holding possession of land so sold for taxes, having the deed of a collector of taxes or county auditor therefor, or a certificate of such sale from a collector of taxes or a county treasurer, or claiming under the person who holds such deed or certificate must be considered as having sufficient title to the land to demand the value of improvements under the provisions of the last section. 54 Sec. 596. Entry of claim for improvements. The court rendering judgment against the occupying claim- ant, in any case provided for by this subdivision, must at the request of either party, cause a journal entry thereof to be made ; and the cause must then proceed as in other civil cases. 55 Sec. 597. Regular jury to act — Duties of jury. For the trial of the question of fact remaining undisposed of, a jury is required to be impaneled and sworn as in other soBeanlsloy v. Chapman, 1 0. S. 52 Sellers v. Corwin, 5 0. 339. 119; Taylor v. Foster, 22 0. S. 255. 53 Schroll v. Klinker, 15 0. 153. A defendant, not in possession tin- 54 Gen'l Code, §11909 (R. S. der a deed, is not entitled to release. §5787). Hart v. Blackington, W. 386. 65 Gen'l Code, §11910 (R. S. 1 Longworth v. Wolfington, §5788). 0. 9. 697 the Occupying claimants' law. §$598, 599 civil cases, and must at once proceed to view the premises in question, and after viewing the same, must return to the court house and then and there, in open court, the trial must proceed as in other civil Cases, and the rights of the parties must be determined by'the jury after hearing the testimony of the wit- nesses, which may be produced by either party, under the di- rection of the court. And from said view and testimony, the jury is required to ascertain and find in their verdict the reasonable value of all permanent and valuable improvements made on the land pre- vious to the occupying claimant receiving actual notice of the adverse claim of the plaintiff, and also the damages, if any, the land has sustained by waste, including the value of timber or other valuable material removed or destroyed, and the net annual value, rents and profits of the land accruing after the occupying claimant received notice of the claim of plaintiff's title by service of summons; and the jury must also find the value of the land at the time the judgment was rendered with the improvements thereon, or damages sustained by waste, in- cluding removal or destruction of the timber or other valuable material and must return their verdict in open court as in other civil cases. 50 Sec. 598. Sheriff to summon talesmen, when. If any juror named in the order is absent from the county, of kin to either party, or from any other cause disqualified or unable to serve upon the jury, the sheriff may summon a tales- man as in other cases, who must be qualified and serve as if originally drawn and named in the order. 57 Sec. 599. Setting verdict aside — Challenge — Costs, if too many witnesses called. If either party be aggrieved by any such assessment or valu- ation, he may apply to the court at any time during the term at which the trial was had, by a motion to set aside the verdict, assessment, and valuation, and the court may, upon good cause shown, set aside such assessment, valuation and verdict, order seGen'l Code, §11911 (R. S. See No. 442 for certificate of oath § 578!) ) . See No. 440 for form of of jury. application to the clerk for jury. 57 Gen'l Code, §11912 (R. S. §5790). §§ 600, 601 MERWINE ON REAL ACTIONS. 698 a new valuation and another jury to be drawn, which must proceed in like manner, as hereinbefore directed; provided, that in all cases either party shall have the right to challenge jurors the same as in other civil actions; and provided further, that if more than three witnesses be examined by either party on the same point in the same case, the judge may tax the costs of such additional witnesses to the party calling them. And the provisions herein will apply to all actions now pend- ing as well as those hereafter to be brought. 58 Sec. 600. Judgment and execution on verdict for plaintiff. If the jury report a sum in favor of the plaintiff in ejectment, on the assessment and valuation of the valuable and lasting improvements, the assessment of damages for waste, and the net annual value of the rents and profits, the court is required to render a judgment therefor, without pleadings, and issue execution thereon as in other cases; or, if no such excess be reported, then, and in either case, the plaintiff in ejectment shall be thereby barred from having or maintaining an action for mesne profits. 59 Sec. 601. Proceedings if verdict is for occupyirg claimant. If the jury report a sum in favor of the occupying claimant, on the assessment and valuation of the valuable and lasting improvements, deducting therefrom the damages, if any, sus- tained by waste, together with the net annual value of the rents and profits which the defendant has received after commencement of the action, the successful claimant or his heirs, or, if they arc minors, their guardians, may either demand of the occupying claimant the value of the land without the improvements so assessed, and tender a deed of the land to the occupying claimant, or may pay the occupying claimant the sum so allowed by the jury in his favor, within such reasonable time as the court shall allow.* 9 58 On'l Cod*-. § 1 1 «» 1 3 ( R. S. shoritV's return of liis writ in the § 57!)] i. action. 59Gen'l Code, §11914 (R. S. ^ Gen'l Code, §11015 ( R. S. §5702). See No. 443 for form of § 570:j ) . See No. 446 for form where the assessment by a jury for im- occupying claimant elects to keep provement under occupying claim- the land, ant's law. See No. 44 1 for form for 699. THE OCCUPYING CLAIMANTS' LAW. §§ 602-604 Sec. 602. When a writ of possession will issue. If the successful claimant, his heirs, or their guardians, elect to pay, and do pay to the occupying claimant, the sum reported in his favor by the jury, within the time allowed by the court, then a writ of possession shall issue in favor of the successful claimant, his heirs, or their guardians. 01 Sec. 603. When claimant elects to receive value of land. If the successful claimant, his heirs, or their guardians, elect to receive the value of the land without improvements, so assessed to be paid by the occupying claimant, and tender a general warranty deed of the land conveying such adverse; or better title, within the time allowed by the court for the payment of the money, and the occupying claimant refuse or neglect to pay the same to the successful claimant, his heirs, or their guardians, within the time limited, a writ of possession shall be issued in favor of the successful claimant, his heirs, or their guardians. 62 &' Sec. 604. When occupant may have action for title. The occupying claimant, or his heirs, shall not be evicted from the possession of such land, exeept as is provided in the two preceding sections, where an application is made for the value of improvements ; and in all cases where the occupying claimant, or his heirs, pay into the court the value of the land, without improvements, within the time allowed by the court, when an election has been made by the successful claimant, his heirs, or their guardians, to surrender land under the provisions of this subdivision, such occupant or his heirs may, at any time after such payment is made, bring an action in the court where judgment of eviction was obtained, and obtain judgment for the title of the land, if the same h:id not been previously conveyed to such occupant as aforesaid. 83 eiGen'1 Code, §1191(5 ( R. S. es Gen'l Code, §11918 (R. S. §5794). §5796). ,8->Gen'l Code, §11917 ( R. S. §5795). FORMS. FORMS IN PROCEDURE TO RECOVER POSSESSION OF REAL ESTATE AND THE OCCUPYING CLAIM- ANT'S LAW. FORMS. 436. The petition to recover pos- session of real estate. The answer of defendant. The verdict of the jury. Judgment on the verdict and application by occupying claimant for valuation of improvements. Application to the clerk for a jury. The writ for a jury directed by the clerk to the sheriff. The certificate of the oath of a jury. The assessment by a jury for improvements under occu- pying claimant's law. 437. 438. 439. 440. 441. 442. 443. FORMS. 444. The sheriff's return of his writ in an action for relief under t!.e occupying claim- ant's law. 445. The oath of the jury in the action. 446. The order and judgment when the plaintiff in ejectment elects to pay to the occu- pying claimant for lasting and valuable improvements and to keep the lands. 447. Another form for a petition in the action to recover pos- session of real estate. No. 436. The petition in an action to recover possession of real estate. County, Ohio. No- Court of Common Pleas, H. T. C, Plaintiff. vs. R. B., Defendant. Petition. 1. First Cause of Action. Plaintiff has a legal title in, and is entitled to, the possession of the following described real .state: (Here describe it). Defendant unlawfully keeps plaintiff out of the possession thereo f and lias continued to do so from the day of , A. D. ]., , by reason whereof plaintiff has been damaged in the sum of $ . 700 701 • FORMS. 2. Second Cause of Action. Plaintiff is the owner of, and is entitled to, tlie possession of the following described real estate: (Here describe it). Defendant unlawfully keeps plaintiff out of the possession thereof, and has done so since the day of , A. D. 19 ; that since said date, said defendant has received all the rents and profits' of said real estate continually until the bringing of this suit and is still receiving said rents, which were and are of the value of $ per annum. Wherefore, plaintiff prays for a judgment of the possession of said real estate and for the value of said rents and profits. Attorney for Plaintiff. (Verified as in other actions.) No. 437. The answer of the defendant. (Same caption as in the petition.) Now comes the defendant, R. B., and denies each and every allegation in said petition contained. Wherefore he prays that he may go hence without day and that he recover his costs herein. , Attorney for Defendant, R. B. (This answer should be verified.) No. 438. The verdict of the jury. (Same caption as in the petition.) We, the jury in this action, upon the issue joined between the parties do find in favor of plaintiff, as charged in the petition as to the real estate therein described, and assess the amount of plaintiff's damages at $ . No. 439. Judgment on the verdict, and application by occupy- ing claimant for valuation of improvements. (Same caption as in the petition.) The parties this day came before the court, and thereupon came a jury, to-wit: (Here insert names of jurors), who, being impaneled and sworn the truth to speak upon the issues joined between the parties, upon their oaths do say that the said R. B. is guilty of keeping the said H. T. C. out of the possession of the real estate described in the petition, and they assess the damage of the said H. T. C. by reason thereof at $ , and the value of the rents and profits of said premises during such withholding of the premises from said H. T. C. by said R. B. at $- . Therefore it is ordered that the said H. T. C. recover a judgment against said R. B. of possession of said tenements, with the appurtenances, so found by said verdict to be so wrongly in the possession of the said R. B. and also the sum of $ , his said damages by the jurors afore- said assessed, together with his costs herein expended, taxed at $ . MERWINE ON REAL ACTIONS. 702 And thereupon the said R. B. by his attorney, made application to the court for the valuation of improvements and assessment of damages, under the law for the relief of occupying claimants; and the court hav- ing investigated the matter is of the opinion that he is entitled to said application for relief. It is ordered by the court that further proceedings may be had in lieu thereto agreeable to the provisions of the statutes made and provided for such (applicants for relief under such occupying claimant's law. No. 440. Application to the clerk for a jury. (Same caption as in the petition.) To . Clerk of the Court of Common Pleas, and , Sheriff of — County: You are hereby required forthwith to meet and draw a jury in the manner required by law. to act upon the application of R. B. in the above action for relief under the occupying claimant's law of Ohio, that an order may issue accordingly. No. 441. The writ for a jury directed by the clerk to the sheriff. The State of Ohio, Cormty, ss. : To tJie Sheriff of County, Greeting: Whereas. On the day of , A. D. 10 . H. T. C, as plaintiff, recovered a judgment against R. B., as defendant in a certain action No. — ■ — lately pending in our Court of Common Pleas, within and for said County of , for the possession of the following lands and tenements, with the appurtenances, to-wit: (Here describe the real estate ) ; and Whereas, Upon the rendition of said judgment, our said Court of Common Pleas, upon the application for that purpose, granted to the said R. B., the benefits of the statute for the relief of occupying claimants; We Therefore Command You, That, without delay, by the oaths of (insert here the names of jurors), and upon actual view of the premises, you cause to be made a just and true assessment of the value of all lasting and valuable improvements made upon the lands and tenements aforesaid by the said R. B. or by any person or persons under whom the said R. !'.. holds the same, previous to the day of , A. D. , and also that in like manner you cause to be made a just and true assess- ment of the damages, if any, which the said land-; and tenements may have sustained by damage, together with the net annual value of the rents and profits which the said R. B. may have received from same from and after the day of . A. 1). . deducting the' amount of such rents and profits from the estimated value of the lasting' and valuable improvemer.ts aforesaid-, and also that in like manner, you cans.- to be made a just and true assessment of the value of the said lands 70S FORMS. and tenements on the . day of , A. D. 19 , exclusive of the improvements made thereon and damages sustained as aforesaid, and of this writ make legal service and return on the first day of the next term of our said Court of Common Pleas. Witness: . Clerk of said Court of Common Pleas at this day of — -, A. D. 19 . No. 442. The certificate of jurors' oath. (Same caption as in the petition.) Be it Remembered, That on the day of , A. D. 19 , before me, a in and for said county, personally came the jury within named, and before proceeding to view and make tlie assessment therein certified, they were duly sworn by me to make a true and just assessment in the premises upon the application of the court referred to. In Witness Whereof, I have hereunto affixed my name and seal of my said office. ■ ■ Sworn to before me and subscribed in my presence on this day of , 19 . . No. 443. The assessment by jury for improvements under occupying claimant's law. (Same caption as in the petition.) We. the jury, duly impaneled in this cause, having been first duly sworn, upon actual view of the premises in the within writ described, do make an assessment of the value of all lasting and valuable improvements made on said land previous to the day of . A. D. 19 , as well as by the said R. B. and the person under whom the said R. B. held the same, which are, to-wit : (Here set forth particularly the im- provements and their value), amounting to $— and deducting there- from the sum of $ . being the amount of the rents and profits of said land estimated by us, as will more fully appear by the estimate here returned, leaving the sum of $ excess in favor cf said occupying claimant. And we do further estimate the value of said land en the day of , A. D. 19 , at $ , exclusive of fie said improve- ments and damages for waste herein under this writ by us • stimated. Nc. 444. The sheriff's return of his writ in an action for relief under the occupying claimant's law. Received this writ on the day of , 19 . at o'clock m. I served this writ upon the following jurors within named: (Here insert the names of jurors). And thereupon the said jury so made out and impaneled was duly MERWINE ON REAL ACTIONS. 704 sworn by , a in and for said county, and I, with the said jury, proceeded to and did execute this writ as will appear by the certain schedule hereto annexed. . , Sheriff of County. No. 445. The oath of the jury in such action. You and each of you do solemnly swear in the presence of Almighty Gcd that you will upon actual view of tlie lands and tenements in a writ here now held by the sheriff of County, described, well and truly assess the value of all lasting and valuable improvements made upon said lands previous to the day of , 19 , by the said R. B., and the persons under whom he holds; and also the damages, if any, said lands have sustained by waste and also the net annual value of the rents and profits of the said lands which the said R. B. may or might have received since the day of , 19 : also to assess the value of said lands on the day of , 1!) , without such lasting and valuable improvements or damage sustained by waste, and in all things perform your duties as jurors according to the requirements of said writ. No. 446. The order and the judgment when the plaintiff in ejectment elects to pay to the occupying claimant for the lasting and valuable improvements and to keep the lands. (Same caption as in the petition.) This cause came on to be heard by the parties hereto, and the jury having made return of their assessments and valuation in the premises, and no good cause being shown against the same, on motion of said R. B., by his attorneys, the said assessments and valuation are confirmed. And the aforesaid jury having reported the sum of $ in favor of the said R. B. on the assessments and valuation aforesaid, after deducting the net annual profits as required by law, the said H. T. C, now here in court elects to take the said land and to pay the said R. B. said sum of $ , so allowed by said jury in favor of H. T. C. And the court does order the said H. T. C. to pay into the hands of the clerk of this court for the said R. B.. said sum of $ la^t mentioned, within the times following, to-wit : (Here give dates for payment), and upon the full payment thereof within such times the said H. T. C. upon precipe filed for that purpose shall have his execution on the judgment upon which these proceedings are founded. But in default of such payment all proceedings upon such judgment are perpetually stayed. And it is further considered by the court that said R. B. recover of the said H. T. C. his costs herein, taxed at $ . 705 FORMS. No. 447. Another form for a petition in an action to recover possession of real estate. Court of Common Pleas, County, Ohi , Plaintiff. vs. Petition , Defendant. 1. First Cause of Action. Plaintiff says that he has a legal estate in and is entitled to the possession of the following described lands, tenements and hereditaments, with the appurtenances, situate in the said County of . and State of Ohio, and bounded and described as follows, to-wit: (Here describe it). The said defendant unlawfully keeps the plaintiff out of possession of said real estate, and has so unlawfully kept him out of said possession continuously since the day of , 19 , to the damage of the plaintiff in the sum of $ . 2. Second Cause of Action. Plaintiff here adopts all and singular the statements contained in his first cause of action herein and makes them part hereof as if the same were here again stated as matter of inducement, and says that from about the day of , 19 . the said defendant has taken, re- ceived and enjoyed all the rents and profits of such premises hereinbefore described, continuously until the bringing of this action, and still is so enjoying sai-ie, which were and are of great value, to-wit: of the value of $ per annum. The said defendant has committed great injury and waste upon said premises, as follows, to-wit: (Here allege specifically the acts, nature and extent of such waste) to the damage and injury of said premises in the sum of $ . Wherefore, plaintiff asks for a judgment for the possession of said premises against defendant; and for $ his said damages, and for the value of said rents and profits of said real estate, for his costs and for such other and further relief in the premises to which he may be entitled. Attorney for Plaintiff. (The petition should be verified as in other actions.) [Note: The foregoing form is adapted from Ya pie's Code Pleadings — Subject: Action to recover possession of real estate.] CHAPTER XX. LAW AND PROCEDURE WHEN COURTS AUTHORIZE EXECUTORS AND ADMINISTRATORS TO COM- PLETE DECEDENT'S LAND CONTRACTS. SECTION. SECTION. 605. When the survivors of ven- action may be filed, and the, dors of land may be an- recmirements of the law as thorized to convey it. to the parties to the ac- 606. What the petition must con- tion. tain in such instances. 600. When the court may order 607. The order of the court in conveyance — Deed and its such instances and deed effect. for the real estate. 610. When the heirs of deceased 608. An action by an administra- purchaser may have a like tor to complete decedent's action, real contract — Where the Sec. 605. When the survivors of vendors of land may be authorized to convey it. When two or more persons who own an interest in land become bound in writing for the sale and conveyance thereof, and one of them dies before the land is conveyed, the sur- vivor or survivors may, by petition against the purchaser, and the heirs or devisees of such deceased party, be authorized to complete such contract. 1 Sec. 606. What the petition must contain in such instances. In such instances the petition must set forth the names of all the contracting parties, describing the lands contracted for, state the time the contract was made, that the contract has been fully performed by the purchaser, and have annexed a copy of the contract. 2 J On'l Code. §11019 (R. S. the petition. See 440 for answer § 57!'7 I , of a defendant and 450 for answer 2 Gcn"I Code. § 1U)20 ( R. S. of widow. §5798). See No. 448 for form for 706 707 LAW AND PROCEDURE TO COMPLETE CONTRACTS. § 607 Sec. 607. The order of the court in such instances and deed for such real estate. If the court finds the allegations of the petition to be true, it may make an order authorizing and empowering the sur- vivors to complete the contract by conveying the land; and the deed must recite the order, and shall convey as complete and perfect a title, and have the same effect as if conveyed by all the owners. 3 Sec. 608. An action by an administrator to complete de- cedent's real contract — Where the action may be filed, and the requirements of the law as to parties to the action. When a person who has entered into a written contract for the sale and conveyance of an interest in land, dies before the completion thereof, and his executor, administrator, or other legal representative, desires to complete the contract, he may file a petition therefor in the court of common pleas or probate court of the county in which the land, or any part thereof, is situated; if the petition be filed in the probate court, service may be made therein as in civil actions; and the heirs at law, devisees or other legal representatives of the deceased vendor, when not plaintiffs, must be made de- fendants in the action. 4 Sec. 609. When the court may order conveyance — Deed and its effect. The court, after causing to be secured to and for the benefit of the estate of the deceased, its just part and proportion of the consideration of the contract, may authorize the executor, administrator or other legal representative, to complete the contract, and to execute a deed for and on behalf of the heirs at law to the purchaser, which deed shall recite the order, and sCen'I Code, § 11021 (R. S. § 5799). See 451 for decree of court authorizing completion of contract 4Gen'l Code, § 11922 (R. 8. §5800). See No. 451, et seq., fo procedure in this action. See also Murdnek v. Lentz, 84 O. S. 589 wherein it whs held that if the con- tract in such instances should be void, the court would not have jurisdiction to entertain an action thereon: and in Long v. Mulford, 17 0. S. 485. it was held: "In a suit by bill in equity against an infant for the specific performance of an alleged contract with his ancestor, he is entitled to a day in court after coming of age, to show cause against a decree, and if an absolute decree be taken against him, it will be error." § 610 MERWINE ON REAL ACTIONS. 708 be as binding on tbe heirs at law, and all other persons in- terested, as if it had been made by the deceased in his life- time. 5 Sec. 610. When the heirs of deceased purchaser may have a like action. The heirs at law, or devisees of a person who purchased an interest in land by written contract, and died before the conveyance thereof to him, may compel such conveyance as the deceased might have done. 6 sGen'l Code, §11023 (R. S. • Gen'l Code, §11924 (R. S. §5801). See No. 452 for form for §5802). deed. FORMS. FORMS OF PROCEDURE FOR COMPLETION, BY THE REPRESENTATIVES OF A DECEDENT, OF HIS REAL CONTRACTS. FORMS. FORMS 448. Petition to complete real con- 452. tract. 449. Answer of defendants in such 453. cases. 450. Answer of widow in such case. 451. Entry ordering legal repre- sentative to complete con- 454. tract. Form for deed to complete decedent's land contract. Another form for petition by an administrator to com- plete decedent's contract for sale of land. Form for a petition by a sur- viving contractor. [Note: It is to be observed that the action may be brought either in the Court of Common Pleas or in the Probate Court. We here give the procedure in the Probate Court.] No. 448. Petition to complete real contract. County, Ohio. No- Probate Court, H. G. E., as Administratrix of the estate of J W. E., Deceased, Plaintiff, vs. H. G. E., H. C. E., a minor, under the Guardianship of W. H. I., and A. A H, Defendants. The plaintiff represents that she is the duly appointed and qualified administratrix of the estate of J. W. E., deceased; that on the day of , 10 , the said J. W. E., then in full life, entered into a contract in writing with the said A. A. H., for the sale of the following described real estate, situate in the County of ■ — , and the State of Ohio, and in the City of — — , to-wit: (Here insert de- scription of real estate), upon the following terms, to-wit: (Here set forth the terms of the contract), as will appear by said contract, a copy of which is hereto attached, marked "Exhibit A." The said A. A. H. has made all payments in accordance with said con- tract up to , 19 , and has kept and performed all agreements 709 MERWINR ON REAL ACTIONS. 710 in saidWontract on his part to be kept and performed and is ready and willing to pay the balance remaining due and unpaid, as provided by said contract, for the said estate, and to perform all the agreements of said contract on his part to be performed, as soon as a valid deed can be made to him for said premises. The said defendants. H. G. E., who is the widow of J. W. E., and H. C. E., a minor son of said J. W. E., aged years, and under the guardianship of W B. 1., are the sole heirs at law of said J. W. E., deceased. Your petitioner desires to complete said contract and therefore prays that said heirs at law and the said A. A. H. may be made defendants herein, and that she, as such administratrix, may l>e authorized to complete said real contract, and upon payment of the amount remaining due and unpaid of said purchase money, as provided by said contract, to execute and deliver to said A. A. H., for and on behalf of the aforesaid heirs at law of said deceased and all other persons interested, a good and suffi- cient deed in fee simple, for the real estate hereinbefore described; that she, as such administratrix, may also be authorized to receive and accept from the said defendant, A. A. H., his promissory note payable as provided in said contract, with interest as therein provided, for the balance of said purchase money, the said note to be secured by a first mortgage to be executed and delivered by the said A. A. H. upon said premises, and for all proper orders and relief in the premises. W. T. MoC, Attorney for Plaintiff. (This petition should be verified as in other instances, and there should be attached to it a copy of the land contract.) No. 449. Answer of defendants. (Same caption as in the petition.) Answer. And now come H. C. E., under the guardianship of W. H. I., and A. A. H., defendants in the above entitled cause, and for answer to the petition in said case filed, do severally say that they are fully aware of the nature and contents of said petition, and they do each waive the issue and service of process or notice, and enter their appearance herein anil freely consent to the sale of said premises as in said petition prayed for. H. C. E., By W. H. T., his (iuardian. A. A. H. (This answer should be verified.) No. 450. Answer of widow in such case. (Same caption as in Hie petition.) And now conies II. G. E., one of the defendants in the above entitled cause and voluntarily enters her appearance herein, and for answer to 711 FORMS. the petition in this case filed, says that she is the widow of said J. W. E., deceased, and as such is entitled to dower in the premises described in said petition, that her age was years at the death of decedent, that she freely consents to said sale as prayed for, and waives the assign- ment of dower in said premises by metes and bounds or in rents and profits; and asks the court that said premises may be sold free from her dower estate therein, and that the value of such dower estate may be allowed and paid her in lieu thereof out of the proceeds of the sale, such sum of money as the court deems the just and reasonable value of her dower interest in said real estate. H. G. E. (This answer is verified as in other actions.) No. 451. Entry ordering administratrix to complete contract. (Same caption as in the petition.) Entry. This day this cause came on to be heard upon the pleadings, evidence and testimony, and the court being fully advised in the premises, finds as follows: That the defendants herein, H. G. E., widow of J. W. E., deceased, and H. C. E., a minor years of age, under the guardianship of W. H. I., and A. A. H., have each been duly and legally served with process, or have voluntarily entered their appearance herein, and are aow properly before the court; that the statements and allegations in the peti- tion are true; that the said J. W. E., did, during his lifetime, enter into a contract with the said A. A. H., by which it was agreed that he would, for the consideration of $ , sell and convey unto the said A. A. H. the premises in the petition described; that the said defendant, H. G. E., has filed her answer herein, and has waived the assignment of dower in said premises by metes and bounds or by rents and profits, and has asked that the value of her dower interest be allowed and paid to her out of the proceeds of said sale. It is therefore ordered and adjudged by the court, that the said H. G. E., as administratrix as aforesaid, be, and she is hereby authorized and empowered to complete and carry out said contract according to its terms and conditions, and to accept and receive from the said A. A. H. the sum of $ as a balance for the purchase money of said premises, the same to be evidenced by his promissory note for said sum to be secured by a first mortgage upon the premises to be conveyed as here- after ordered, said note to bear interest at the rate of per cent. per annum, payable semi-annually, the principal to be paid monthly in payments of $ each due and payable on the day of each and every month after the date thereof, until said sum of $ with interest as aforesaid, be paid, said sum being the balance due upon said contract, as the purchase money for said premises, and to make, execute and deliver a good and sufficient deed for all the right, title and interest of all the defendant heirs at law of the said J. W. E., deceased, and free 3IERWINE ON REAL ACTIONS. 712 from the dower interest of the said H. G. E., in and to the premises described in the petition to the said purchaser, A. A. H. And the court finds that the just and reasonable value of the dower interest of the said H. G. E. in and to said premises to be the sum of $ and that she is entitled to have the same paid to her. It is further ordered that this proceeding be recorded in the records of this office and that said plaintiff pay the costs herein taxed at $ . No. 452. Form for such deed. Know all Men by These Presents: That, Whereas, On the day of . 19 . H. G. E. was duly appointed and qualified as administratrix of the estate of J. W. E., de- ceased, late of said County, by the Probate Court of said county, and afterward, to-wit: on the day of , H. G. E., filed her petition in the Probate Court of said county asking for an order of said court authorizing her to complete a contract made by the said J. W. E. to sell certain real estate therein described; and Whereas. Afterwards, on the day of — -, said petition came on to be heard and the court ordered that the said H. G. E. complete said contract and make, execute and deliver to the said A. A. H. a war- ranty deed in fee simple, for said premises, upon payment of the purchase money remaining unpaid, as provided for in said contract and upon the terms thereof, which order is in the words as follows, to-wit: And to make, execute and deliver a good and sufficient deed for all the right, title and interest of all the defendant heirs at law. of said J. W. E., deceased, and free from the dower interest of the said H. G. E. in and to the premises in the petition described, to the said purchaser A. A. H., all of which will more fully appear by the records of said court, to which reference is hereby made. Now Therefore I. H. G. E., as administratrix of the estate of J. W. E., deceased, aforesaid, by virtue of said proceedings and of the statute in such case made and provided, and of the power vested in me. and for and in the consideration of $ — paid by said A. A. H., the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell and convey unto the said A. A. H.. his heirs and assigns forever, all the right, title and interest that the said .j. W. E., owned in the following real estate situated in the County of . State of Ohio, and in the City of ■, bounded and described as follows: (Hero insert description of real estate.) To Have and to Hold said premises, with all the privileges and ap- purtenances thereunto belonging to the said A. A. H., his heirs and assigns forever, as fully and completely as she. the said H. G. E., as such administratrix, by virtue of said order of the court and of the statute made and provided for such cases, might or should sell and convey the same. In Witness Whereof, the said H. G. E.. as such administratrix has hereunto set her hand, this day of , 10 . H. G. E., As Administratrix of the Estate of J. W. E., Deceased. 713 FORMS. Signed and acknowledged in the presence of State of Ohio, County of , ss. : Be it Remembered, That on this day of , 19 , before me, the subscriber, a notary public in and for said county, per- sonally came the above named H. G. E., as administratrix of the estate of J. W. E., deceased, the grantor in the foregoing deed, and acknowledged the signing of the same to be her voluntary act and deed as such admini- tratrix for the uses and purposes therein mentioned. In Testimony Whi:reof, I have hereunto subscribed my name and af- fixed my official seal on the day and year last aforesaid. Notary Public, County, Ohio. No. 453. Petition by an administrator to complete decedent's contract for sale of land. Common Pleas Court, County, Ohio. , as Administrator of the Estate of , Deceased, and and , Heirs-at-law of said , Deceased, Plaintiffs, vs. Petition. and , as the Legal Guardians of , an Infant, and said , Heirs-at-law of said , Deceased, Defendants. On cr abcut the day of , 19 , the said , late of the County of , and State of , died intestate, leav- ing the plaintiffs, said and said , and the said defendant, , who is an infant aged about years, and whose legal guar- dian is the said defendant, , his sole heirs-at-law. Plaintiff, , is the duly appointed, qualified and acting admin- istrator of said , deceased; a duly certified copy of his letters of administration is hereto attached marked "A." The said died possessed of the legal title in fee simple, to the following described lands and tenements, to-wit: (Here set forth the description of the real estate.) Said left a widow, who has duly executed and acknowledged a deed for release for said , of said premises, releasing her dower in said premises, which deed is brought into the court by plaintiffs to be deposited with the clerk for said and to be delivered to him upon the execution to the said of the deed as hereinafter asked. MERWINE ON REAL ACTIONS. 714 During his lifetime, the said , on the day of , 19 , contracted, in writing, with said , to sell and convey to said in fee simple, by deed of general warranty, said premises with the appurtenances, to said , which contract was in substance as follows : ( Here the contract should be set forth in substance ) , a copy of which said contract is hereto attached marked "B-." and that laid contract was not completed by said in his lifetime, and the plain- tiffs desire to complete the same according to its terms. Wherefore the plaintiffs pray that the court, after causing to be se- cured to and for the benefit of said estate of said deceased its just part and proportion of the said consideration of said contract, may authorize the said , as such administrator and legal representative of *aid , deceased, to complete said contract, and to execute deeds of gen- eral warranty for and on behalf of the heirs-at-law to the said purchaser, which shall be as binding on such heirs-at-law as if the same had been made by said deceased in his life-time; and for all proper relief in the premises. Attorneys for Plaintiffs. (This petition should be verified.) No. 454. The petition of a surviving contractor to convey lands of decedent to purchaser. Court of Common Pleas, — — County, Ohio. Plaintiff, vs. Petition. and Heirs-at-law of , Deceased, Defendants. The defendants, and , are sole heirs-at-law of , late of County, and State of Ohio, deceased, and the said is an infant under the age of years and has no legal guardian. On or about the day of , 19 , he and the said , deceased, were the owners and seized in fee simple of a good and unincumbered title of and to the following lands and tenements, with the appurtenances, described as follows, to-wit: (Here describe the real estate) . On said last named date the plaintiff and said . deceased, entered into a written contract with the said defendant, , to sell and convey to him in fee simple, by a good and sufficient deed of warranty, for -aid terms, with the appurtenances, which was as follows: (Here si liege the contract according to the substance and legal effect of its terms). ;t copy of said contract is annexed hereto, and said contract has been fully performed by the purchaser, said defendant, . Said also left a widow. . who has executed for Raid her deed of release, by which she released 1km- dower in said 715 FORMS. premises, which deed is now brought into court by plaintiff, to be deliv- ered to said , when the plaintiff shall be authorized by the court to make and deliver for him a deed for said premises. Wherefore plaintiff prays to be authorized to complete said contract by conveying to said such premises, with covenants of warranty, the same as he and said might have done were said living, according to the statute in such cases made and provided, and for all proper relief. Attorneys for Plaintiff. (This petition is verified as in other actions.) [Both the above forms are adapted from Yaple's Code Pleading; Sub- ject: Actions to Complete Contracts for Sale of Real Estate made by persons who have died.] CHAPTER XXI. THE ACTION TO CONTEST A WILL. G12. 013. 614. 615. 616. 617. 618. 619. 620. SECTION. 621. The manner in which the is- sue is made up. The conduct of the trial. The action to be tried by a jury — The court may di- rect a verdict. The effect of the order of probate on the issue. The testimony upon the pro- bate of the will becomes competent, when. Who may contest a will or codicil. The necessary parties to the action. The limitation of the action to contest a will. Error, not appeal, lies in the action to contest a will. 622. 623. 624. 625. 626. 627. 628. 629. SECTION. 611. The nature of the action to contest a will. The scope of the inquiry. Who may make a will. What constitutes a sound and disposing mind and mem- ory. Undue influence. The manner in which a will must be executed. The acknowledgment by the testator and the attesta- tion of the will. The manner in which a will may be revoked. The certificate from the clerk to the probate court. Duty of the probate judge on notice of contest — Papers to be sent to the common pleas and what return is made to the probate court. Sec. 611. The nature of the action to contest a will. Prior to the Civil Code, the action to contest a will was a suit in chancery; and then, as now, the Wills act provided that the issue should be made up whether the writing produced be the last will and testament of the testator or not, and the action was tried by a jury. 1 No answer was necessary in the action, for the reason that the statute made up the issue, and the manner of the proceed- ing could not he changed by the pleadings after the bill in chancery was filed. 2 Even after the adoption of the Civil Code, the nature of the action was not changed. The action could be prosecuted iDew v. Eeid, 52 0. S. 523. 2 Green v. Green, 5 O. 279. 710 717 ACTION TO CONTEST A WILL. § 611 "either according to the forms of a suit in chancery, or by a petition under the code of civil procedure." 3 It has been said of the action that. "While a proceeding for the contest of a will is conducted by an original action the court exercises the probate jurisdiction of finally estab- lishing or rejecting the will, and the proceeding is in the nature of an appeal from the order of probate. 4 'That though actions of this nature are now denominated civil actions, yet, in so far as they are governed by special statutory regulations inconsistent with the rules of pleading and procedure under the Code, the latter are inapplicable, so that the issue which shall be made up and tried in such cases, having been specifically prescribed by the statute, can not be varied or restricted by averments in the pleadings, whether controverted or not, and that, while that issue may be made up either by the pleadings or by an order entered upon the journal of the court, it must, whichever the mode adopted, be the broad issue required by the statute, whether the instrument produced is the valid will of the alleged testator ; and as the proof may be commensurate with the issue, any competent evidence tending to prove that, for any reason, it is not his valid will, is admissible, and should receive proper consideration from the jury." 5 When a will is presented to the probate court for record, that court must hear the testimony of the witnesses, and upon such testimony the court is required to refuse to probate it or to admit it to probate. If the paper writing is not admitted to probate, then a proper party aggrieved thereby, may appeal from such decision to the next term of the court of common pleas. 6 An order of the court, admitting a paper as a last will and testament, is not reviewable on petition in error, though an order refusing to admit such paper to probate is reviewable. 7 3 Brown v. Griffith, 11 0. S. 329; 6 Gen'l Code. § 10532 (R S Dew v. Reid., 52 0. S. 329. §5934). ^Mears v. Mears, 15 0. S. 90; 7 Holrah v. Lasance. 03 O. S. 58. Converse v. Starr, 23 0. S. 498. In this last case §§ 5944 to 5948 and s Dew v. Reid, 52 0. S. 329; Win- § 5933 were discussed, and Mission- dersch v. Brewing Co., 17 C. C. 465: ary Society v. Ely, 56 0. S. 405. Kilpatrick v. Humphries, 8 X. P. was distinguished ' from Mosier v! 245 ' Harmon, 29 O. S. 58. See also Stacy v. Cunningham, 69 0. S. 181. § Cll MERWINE ON REAL ACTIONS. 718 When a court refuses to admit a will to probate, then a party aggrieved may either prosecute an appeal, or repropound the will, or have the same reviewed by proceedings in error; but it would seem that only those persons interested in the will, who have not received the notice required by law of the hearing to probate, can repropound the will. 8 The hearing in the probate court for the probating a will is ex parte in its nature, and the order admitting the will is final in that court, and the will cannot be set aside except by the action to contest it in the common pleas court. There is no appeal, or right to file a petition in error to review the order of probate. After the will has been admitted to probate, and the action begun in the proper court to contest it under the statute, then the proceeding is in the nature of an appeal, though triable to a jury. All questions are to be heard and de- termined de novo, as upon appeal, the probate proceedings making a prima facie case in favor of the writing produced. 9 The filing of such action to contest the validi.y of a will admits, on the part of the plaintiff, the probate of the will put in contest, and such plaintiff will not, on the trial of the action in the common pleas court, be heard to say that such proceedings by which the will was admitted to probate were irregular, or that that court had no jurisdiction to probate the will. However no action can be brought in the court of com- mon pleas to contest the validity of a will until the will has been admitted to probate. 10 The jury in the action, has no right to consider or pass upon the validity or invalidity of any part of the will, nor has the court any right or power to instruct the jury as to the same The functions of the court and jury in the action are solely to ascertain and determine the question : Is the paper writing admitted to probate the last will and testament of the testator? 11 8 1 Rockel's Complete Qhio Pro- jury see Brundidpe v. Benton, 1? bate Law and Practice, Sec. 1115; W. L. B. 240. Trwin v. Jacques, Feuchter v. Keyle, 48 0. S. 357; 71 0. S. 395. Tn an action to con- Stacy's Will. 4 X. P. 133. test a will on the sole ground that o Haynes v. Haynes, 33 <>. S. <>1S. it was not signed at the end thereof io Stacy v. Cunningham, (!'•> <». S. as required by the statute, its con- 181 ; Converse v. Starr, 23 O. S. 493. struction and interpretation is not ii Mears v. Wears, lf> 0. S. 90; a subject for tlio consideration of a Burger v. Sullivant, 2 N. P. X. B. court or jury. Ibid. 327: but as to special verdict of a 719 ACTION TO CONTEST A WILL. §§ 612-614 Sec. 612. The scope of the inquiry. The statute provides that before a will may be admitted to record, it must he made to appear that it was duly attested and executed, in writing, and that the testator, at the time of executing the same, was of full age, and of sound mind and memory, and not under any restraint. These requirements of the law must he fulfilled before the will ean be admitted to probate. After it lias been probated, the scope of the inquiry in the action to contest its validity, may be as comprehensive as the inquiry for the admission of the will to record. 11 ' The same rules of law applicable to the contest of a will apply as well to the contest of a codicil to any will. Sec. 613. Who may make a will. Any person of full age and of sound mind and memory, and not under any restraint, having any property, personal or real, or any interest therein, may give and bequeath the same to any person by last will and testament. 13 Sec. 614. What constitutes a sound and disposing mind and memory. The strength of mind required to make a will is not that required to make a contract ; for a person may have a mind of sufficient soundness to make a will but not to make a con- tract. A testator's mind, at the time of the making and the execution of his will, must be of sufficient strength as to enable him to know and to understand the nature and extent of the property he intends to bequeath and devise, the names of the persons who have a claim upon his bounty, and the names and the rights of all of his children who are naturally 'dependent upon and entitled to his bounty ; and he must also know and be able to understand and comprehend his true rela- tions to his property. 14 "Oen'l Code, §10510 (K. 8. 611, affirmed in 75 0. S. 036: West § 5029) : Dew v. Reid. 52 O. S. 526. v. Knoppenberger, 4 C. C. N. S. .305. isGen'l Code, §10503 ( R. S. As to validity of a will made while §5014i. dissolution i* taking place, sec In "Pepple v. Pepple. 13 C. C. 45: re Burrows, 8 X. P. 35S. As to de- Moore v. Caldwell, C. C. X. S. 4X4: lusions not inconsistent with mental Ketterman v. Meteger, 3 C. C. X. S. capacity, see Xew. etc.. v. Crocker, 224: Joslyn v. Sedan, 2 W. L. B. 7 C. C. 327: Pd-n--'. v Davis, 30 147; Welsh v. Wilson. C. C. N. S. '". T. B. 283. As to the effect cf §§ 615,616 MERWINE ON REAL ACTIONS. 720 Sec. 615. Undue influence. The "restraint" mentioned in the statute means the same as the term "undue influence," used in the decisions and in the text books. In the actions to contest an alleged will, if it appears that the alleged restraint or influence did not operate on the mind of the testator in the making of the alleged will, such restraint or influence is then clearly not undue influence. Undue influence, such as to invalidate a last will and testa- ment, must be a present undue influence operating upon the testator's mind in the very act of making the will, and of such character as to compel him, either from fear, dis- ease, or possibly from some feeling which he is unable to resist, to do that which is against his will, and also destroy his free agency and substitute for his own another's will. Mere passion and prejudice, the influence of religious or secular training or association, opinions imbibed in the natural course of one's experience and contact with society, mere argument or persuasion, earnest solicitation, or such in- fluence as one may deservedly obtain over another, are as a general rule, insufficient. The cases in Ohio on this question are too numerous for review. A list, of a few of them will be found in the note below. 15 £ec 616. The manner in which a will must be executed. The law requires that every last will and testament (except nuncupative wills hereinafter provided for) must be in writing and may be hand-written or type-written ; and such will must be signed at the end thereof by the party making the same, or the long continued use of cocaine, see In re Underbill, 21 W. L. B. 279; Goebel 190. As to the belief that all women are prostitutes, causing a testator to give all of his prop- erty to his sons and none of it to his daughters, see Joslyn v. Sedan, 2 W. L. B. 147. As to the making of a will by an aged man a few hours before his death at a time when he was suffering intensely from pneumonia, see In re Bur- rows, 8 X. P. 358. 18 Monroe v. Barclay. 17 0. S. 302; Bapp v. Becker, 4 C. C. X. S. 139; Mears v. Mears. 15 O. S. 90; Ketterman v. Metzger, 3 C. C. X. S. 224; Kime v. Addlesperger. 2 C. C. X. S. 27; Truman v. Lore. 14 O. S. 144: Bewell v. Warren, 4 C. C. X. S. 545; Corbit v. Corbit, 4 W. L. B. 1000; Stump v. Carver, 22 W. L. B- 365; Tracey v. Sackett, 1 0. S. 54; Page on Wills, § 114; RockePs Probate Law and Practice, Sec. 1021 ; Woerner's American Law of Admin., 31. For cases under un- due influence of persons in a confi- dential relation with testator, see Whitney v. Roth, 45 W. L. B. — ; Monroe v. Barclay. 17 O. S. 302; Kime v. Addlesperger, 2 C. C. X. S. 270; Pepple v. Pepple, 13 C. C. 43. 721 ACTION TO CONTEST A WILL. § 616 by some other person in his presence and by his express di- rection, and shall be attested and subscribed in the presence of such party, by two or more competent witnesses who saw the testator subscribe, or heard him acknowledge the same. 16 Where a will is not executed according to the requirements of the Legislature, in the interpretation of the statute regu- lating the execution of wills, the intention of the Legislature controls, and a will that is not executed as required by statute is invalid, notwithstanding the intention of the testator. It was held, in an action in which it appeared that the will was not signed at the end thereof by the party making the same, when it is written by the party making it, upon a printed form containing a testimonium clause with blanks for the name of the place and the date of execution, which he fills, and immediately following this a blank line for the signature of the maker, which he leaves blank, although he has written his name in the attestation clause immediately following the testi- monium clause, in a blank left for the name of the testator, and may have intended such act as a signing, that, when it appears on the face of the will that it was not signed at the end thereof as required by statute, it is not error for the trial judge to direct a verdict that the writing is not a valid will. 17 In another action, the Supreme Court of this State, in com- menting upon the manner of the signature to a will, set forth the following : "On the first page of said paper there was a printed heading and under this heading, on the same page, were written all the dispositive clauses of said will. Immediately following these was the clause nominating an executor of said will, the whole of which latter clause was also written upon said first page except the words 'executor be not required to give bond/ which, for want of space on said first page, were written at the top of the second page, occupying all of the first and a part of the second line on said second page. The remainder of said second page was entirely blank, and the third page was ioGen'1 Code, §10505 (R. S. Y. 516: In re Conway. 124 N. Y. §5010. 455: In re Whitney. 153 X. Y. 259: it Syllabus in Sears v. Sears, 77 In re Blair, 84 Hull, 581; Seward 0. S. 104; In re Matter of Andrews. v. Seward, 1 Duvall, 126; Lime v. 62 X. Y. 1: Sisters, etc. v. Kelly, Bryer, 6 B. C. 104. 67 N. Y. 409; In re O'Neil, 01 N. §617 MERWINE ON RIJ5AL ACTIONS. 722 also blank clown to the testimonium clause, a space of about twenty-three and one-half inches. The testatrix signed her name, by mark, immediately after and beneath said testimo- nium clause on the blank line obviously left for the signature of the person executing such will. Then follows immediately, in due form, the attestation clause signed by two witnesses." The court held that the execution of this will was within the terms of the statute. 18 Where, in the trial of an issue in the action to contest the validity of a will, the original will was in evidence and showed the body of it to be written on horizontal lines of several pages of foolscap or legal cap paper, so that all its items and pro- visions were in consecutive order to the end on the last page and under which the testator's signature appeared, and it also showed that there was vn'tten in the margin of the last page to the left of and separated from the body of the instrument, a dispositive clause, extending lengthwise of the page from near the bottom to near the top thereof, and in no manner connected with the body of the instrument by any words, mark, or character, as a reference to indicate where the marginal matter was to b" read in relation to the other provisions ; and it was established by the testimony that the marginal matter was written' after all the other provisions, at the request of the testator, and before he attached his signature under the body of the will, it was held that such will was not signed at its end as required by statute, and it was invalid for that reason. 19 Sec. 617. The acknowledgment by the testator and the attesta- tion of the will. The statute requires that the will must be attested and subscribed in the presence of the testator, by two or more isMader v. Apple, SO O. S. <107: citing and commenting mi Underbill on Wills. Sec. 185; Roach on Wills. See. 31; Scars v. Hears. 77 O. S. 104. A will may be partly printed and partly in writing. Sears v. Scars. 77 0. S. KM. '■• Second Syllabus, in Irwin v. Jacques, 71 <>. S. ::!•<; : Baker v. Baker, 51 0. S. 217; Glaney v. Glaney, 17 O. S. 135; Kyle v. Feuchter, 56 0. S. 424; Lester, etc. v. Kelly, . 56 N. E. Pep. 529; In re Walke, 110 Cal. 37. The doctrine v an- other under the direction of a tec- tator that such signing was a for- mal acknowledgment of the signa- ture. "Where the onlv knowledge the witnesses have of the signing is that it was signed in their own handwriting, the will can not be probated." Kuntz v. Boudendestle, Dayton. 224. Gen'] Code. § 10515 (R. S. § 5925), as to the effect of witnesses being a devisee or legate* under the will, is not applicable to verbal wills Vroorran v. Powers, 47 0. S. 191. 23 Gen'l Code. !• 105."" (R. S. ■ v 5953). 24Coghlin v. Coghlin. 79 0. S. 71. §§ 619,620 MERWINE ON REAL ACTIONS. 724 showing that after it had been restored the testator recorded the instrument as his will. 25 Sec. 619. What the clerk must certify to the probate court. Upon the filing of the petition, the clerk is required by law to certify that fact to the probate court in which the will is recorded, and the probate judge is required to proceed as provided in Gen'l Code § 12081 (R. S. § 5860). 26 Sec. 620. Duty of the probate judge on notice of contest — « What papers to be sent to common pleas, and what return is made to probate court. Whenever the probate court receives from the clerk of tli3 court of common pleas a certificate that a petition has been filed in the court of common pleas to contest the validity of any Avill admitted to record or recorded in the probate court, the probate court must transmit forthwith to the court of common pleas the will, testimony, and all papers relating there- to, with a copy of the order of probate, attaching the same together and certifying the same under the seal of the court ; and a copy of the final judgment on such contest, must be certified by the clerk of the court of common pleas to the probate court ; and said clerk must also transmit to the probate 23 Coghlin v. Coghlin, 70 O. S. 71; Behrens v. Behrens, 47 O. S. 323. "In general, it may be assumed that a will is kept in the custody of the testator himself, or under his control, to be changed, modified or revoked according to his good pleas- xire. If at his decease it can not be found, it is more reasonable to pre- sume that he himself has destroyed his will, than that some other per- son has committed the crime, and incurred the penalty of secreting or destroying it. * * * "But while the declarations of the testator may bo used to weaken the presumption that he 1ms destroyed '•is will with the intention of revok- ing it, his declarations may also be received as evidence to strengthen and for+ifv the presumption that he has destroyed liis will with such in- tention. Whether it be the making of a will or the destroying of one, the competency of the testator's dec- larations as evidence is alike in each case, and for the same reasons ad- missible." Behrens v. Behrens, 47 O. S. 323; Collagan v. Burns, 57 Me. 465; Keen v. Keen, L. R., 3 P. & D. 105; Lawyer v. Smith, 8 Mich. 412; Patterson v. Hickey, 32 Ga. 156; Weeks v. McBeth, 14 Ala. 474; Smiley v. Gambill, 2 Head, 104; Reel v. Reel, 1 Hawks, 248; Tynan v. Baschal, 27 Tex. 286; Youndt v. Youndt, 3 Grant Case, 140. 20 See ISTo. 450 for form for this certificate. See No. 455 and following for forms of petition and all of the pleadings, writs, pro- cesses, certificates and orders in the action. 725 ACTION TO CONTEST A WILL. §§ 621,622 court the will and other papers transmitted as aforesaid to the common pleas and the same must be deposited and remain in the probate court. 27 Sec. 621. The manner in which the issue is made up. The statute requires that the issue be made up, either in the pleadings or by an order on the journal, whether the writing produced is the last will or codicil of the testator, or not, which shall be tried by a jury, and the verdict therein shall be conclusive, unless a new trial be granted, or the judg- ment be reversed or vacated. 28 A distinguished jurist, in discussing this question of making up an issue by a journal entry, said: "As showing the use- lessness of a journal entry or order to make the issue, it may be suggested that this practice is probably a survival of chan- cery practice of which contest of wills was not an original part, and hence the chancellor's right to summon a jury to inform his conscience did not obtain because his conscience was not concerned in this matter, and so the right was therefore given him to order the issue and send it to a jury for trial, all of which was unnecessary under the Code." 29 The manner in which the issues in a will contest are to be made up is fixed and determined by this statute. It must be made up either by the pleadings or an order entered on the journal, yet whichever mode is adopted, the issue presented for determination must be the same. 30 Sec. 622. The conduct of the trial. The party sustaining the will is entitled to open and close the evidence and argument; he must offer the will and pro- bate, and rest his case ; the opposite party is required to offer his evidence ; the party sustaining the will is then required to offer his other evidence ; and rebutting evidence may be offered as in other cases. 31 =7Gen'l Code. §12194 (R. S. § 5936). See also Nos. 461 and 466 for forms for certificates under this section. ssGen'l Code, §12082 (R. S. §5861). See No. 470 for form of the issue made up on the journal. 29 Bates Pleading, Practice, Par- ties and Forms, Vol. 3, page 29G5. so Stacy v. Cunningham. 69 0. S. 181; Dew v. Reid, 52 O. S. 519. siGen'l Code, §12085 (R. S. § 5864) ; but see Green v. Green. 5 O. 278; Raudebaugh v. Shelly, 6 O. S. 307: Brown v. Griffith, 11 O. S. 329; Banning v. Banning. 12 0. S. 437; Runvan v. Price, 15 0. S. 1; Mears v. Mears, 15 0. S. 90. §§ 62:>,G24 MERWINK ON REAL ACTIONS. 726 Sec. 623. The action to be tried by a jury — The court may direct a verdict. The court has the power, in an action to contest a will, where the plaintiff's evidence fails to make out a case in law to set aside the will, to direct the jury to return a verdict sustaining the will. This law, requiring that a jury, in actions of this kind, pass on the validity or invalidity of the will, is imper- ative, and the law was so made to prevent consent decrees in chancery by the parties. 32 It was said of the functions of a court and jury in the action to contest a will, that — "The statute provides the order in which the testimony shall he introduced, gives legal effect to the will and order of prohate, and requires the case to be submitted to the jury. In other respects the trial is to be conducted as other jury trials are conducted, and it is the duty of the court in that ease, as in other cases, to give proper instructions to the jury." 33 In one case in this State, whera, on the trial of an action to contest a will, wherein it appeared on the face of the will that it was not signed at the end thereof, as required by the statute, it was held not error for the trial judge to direct a verdict that the paper writing was not a valid will. 34 Sec. 624. The effect of the order of probate on the issue. On the trial of the issue to contest a will in the common pleas court, the order of the probate court is prima facie evidence of the due attestation, execution and validity of the will and codicil. 35 Where a spoliated will has been probated, this order is prima facie evidence of due execution thereof, and the burden of proof will be on the contestants to invalidate such will."'" The original will, when not lost, should be introduced at, the trial. The copy attached to the petition will not be suffi- cient/' 7 82 Wagner v. Zicgler. 44 O. S. 68; oven though all the parties agree. Walker v. Walker, 14 0. S. 158. Ibid. S3 Wagner v. Ziegler, 44 0. S. 60. 34 Sears v. Sears. 77 0. S. 104. Tt is error for the court, without sb Gen'l Code, §12083 ( R. S. the intervention of a .jury, to set §5682). aside a will. Holt v. Lamb, 17 0. seBehrens v. Behrens, 47 O. S. S. 374; Cooch v. Cooch, IS 0. 146; 323. 87 Haynes v. Haynes, 33 0. S. 508. 727 ACTION TO CONTEST A WILL $§ 625,626 During the course of the trial it is error for the court to instruct the jury that a fair preponderance of the evidence against the will is sufficient. The instruction on that point should he a preponderance of the evidence. 38 Where it appears on the face of the will that it has not been signed at the end, or not witnessed according to the stat- ute, the probate of it does not make the introduction of the will ;it the trial 01 the action t<» contest it, a prima facie case. 39 Sec. 625. When the testimony upon the probate of the will becomes competent. A certified copy of the testimony of such of the witnesses examined upon the probate as are out of the jurisdiction of the court, dead, or have become incompetent since the probate, can be introduced as evidence on the trial. +> Sec. 626. Who may contest a will or codicil. A person interested in a will or codicil admitted to probate in the probate court or court of common pleas, may contest the validity thereof in a civil action in the court of common pleas of the county in which probate was had. 41 Where a will is valid when it is executed and is afterwards revoked by the testator himself, in any of the statutory modes, 42 or revoked by operation of law, 43 and it should, never- theless, be admitted to probate and record, any person inter- ested in having it set aside as invalid, may contest its validity by an action under the statute for that purpose. 44 88 Russell v. Russell, 6 C. C. 294. so Sears v. Sears, 77 O. S. 129. ■toGen'l Code, §12084 (R. S. § 5863 ) . "Gen'l Code. §12075 (R. S. § 5858) ; see Taylor v. Taylor, 5 N. P. N. S. 323; Rockwell v. Beaney. 5 N. P. X. S. 580: Moves v. Neil- son, 7 X. P. 007. Widow not es- topped by election. Carder v. Cone, 16 O. S. 354. *z Gen/1 Code, §10555 (R. S. § 5953). *3Gen'l Code, §10557 (R. S. §5995). ■"Meyers v. Barrow. 3 C. C. 92. "A judgment creditor of an heir who has obtained a lien by levy on property, which in the absence of a will would be the property of the debtor heir by descent is a person interested in a will or codicil, with- in the meaning of Gen'l Code, §12079 (R. S. §5858), and therefore has legal capacity to pros- ecute an action to contest the valid- ity of an alleged will disposing of such property to a person other than such heir." Bloor v. Piatt, 78 O. S. 46. §§ 627,628 MERWINE ON REAL ACTIONS. 728 Sec. 627. The necessary parties to the action. All the devisees, legatees and heirs of the testator, and other interested persons, including the executor or administrator, must be made parties to the action. 45 The executor, having been made a party, is not bound to assume the burden of the defense of a contest of the will by the heirs at law. The executor can place this burden upon the legatees and devisees in the will. 46 The devisees and legatees are indispensable parties, and the omission to make a legatee party to such suit is error for which the decree setting aside the will, will be reversed. 47 It is not considered a defect of parties, by failre to make the executor, or administrator, a party to an action to contest the validity of a will. 48 Sec. 628. Limitation of the action to contest a will. An action to contest a will or codicil must be brought within two years after the same has been admitted to probate, but persons within the age of minority, of unsound mind, or im- prisoned, may bring such action within two years after such disability has been removed 49 It was held that in a proceeding of this character, where the action is commenced within the statutory period, although only a part of the persons interested in the contest are made parties thereto, the right of action is saved as to all who are 45Gen'l Code, §12080 (R. S. §5859). 46 Andrews, etc. v. Andrews, 7 0. S. 143; as to executor's duty as to counsel fee see In re Will Contest, 7 N. P. 288. As to who shall pay counsel fees in sustaining a will, see In re Counsel Fees, 7 N. P. 624. See also counsel fees in case of a compromise, Seeger's Estate, 7 N. P. 207. As to when a receiver can be appointed in a will contest, see Lanker v. Mattison, 20 C. C. 229. As to counsel fees where executor defends and sustains a will, see Union v. Smith, 4 C. C. N. S. 237. •»" Reformed, etc. v. Nelson, 35 O. S. 038: Holt v. Lamb, 17 O. S. 375; Banning v. Kerby, 7 A. L. R. 602. In a will contest case after the petition has been filed and a defend- ant files a cross-petition asking af- firmative relief, the plaintiff can not defeat the action by dismissing his petition. Bradford v. Andrews, 20 O. S. 209. 48 Gurley v. Armentrout, 6 C. C. N. S. 156. 49Gen'l Code, §12087 (R. S. §5866). As to disability of in- fancy, see Powell v. Kochler, 52 O. S. 103. As to when suit is deemed commenced, see 2 N. P. X. S. 577; see also under this statute Bradford v. Andrews, 20 O. S. 208; Meese v. Keefe, 10 O. 362. 729 ACTION TO CONTEST A WILL. § 629 ultimately made parties, notwithstanding some of them are not brought into the case until after the period of limitation has expired. 50 Sec. 629. Error, not appeal, lies in the action to contest a will. No appeal can be taken from the judgment of the common pleas court to the circuit court in cases to contest a will, but the right to prosecute proceedings in error in such cases shall be the same as provided in other cases brought in the common pleas court. 51 so Bradford v. Andrews, 20 0. S. statute Wasson v. Heffner, 13 0. 208. S. 573; Murna v. Murna, 23 0. S. siGen'l Code, §6424 (R. S. 602; McMaster v. Keller, 1 C. C. §5896). But see under former 476. FORMS. PROCEDURE IN THE ACTION TO CONTEST A WILL. FORMS 455. The petition to contest a will. 45G. The precipe. 457. The summons in the action. 458. The sheriff's return of the summons. 459. Certificate to the probate court by clerk on the filing of the petition to contest will. 460. Journal entry and certificate of probate court in the ac- tion to contest a will. 461. Certificate to the court of common pleas in the action to contest a will. 462. The joint answer of the de- fendants in the action. 463. The verdict of the jury sus- taining the will. 464. Motion for new trial. 465. The judgment of the court overruling the motion for a new trial and sustaining til.' will. 466. The certificate of the clerk of the court of common pleas, with copy of final judg- ment, to the probate court, after final judgment is ren- dered in the action to con- test the validity of a will. FORMS. 467. The application for the ap- pointment of a guardian ad litem in tin- action to contest a will. 468. The order of the court ap- pointing a guardian ad litem for minor defendants. 469. The answer of guardian ad litem for minor defendants in the action to contest a will. 470. The order entered on the jour- nal making up the issue, when the issue is not made by the pleadings. 471. Another form for a petition. 472. Another form for the answer of defendants. 473. Another form for a petition to contest will for the rea- son that the alleged testa- tor was not of a sound and disposing mind and mem- ory, and was under undue influence and restraint, i:i attempting to make the same. 474. Petition to contest a nuncu- pative will. 730 731 FORMS. No. 455. The petition to contest a will. Court ok Common Pleas, ; County, Ohio. F. F. M., C. J. M., F. A. B., J. W. B. and W. B., as Guardian of M. L. B., Plaintiffs, vs. No. » Rev. M. M. M., as Pastor of St. Joseph's Cathe- dral Congregation ; M. M. M., a minor 16 years of age; W. J. B., Council No. ; Knights of Columbus, a Corporation; E. M., a minor 14 years of age; C. M.. a minor 12 years of age; K. F., Rev. R. J. M., as President of St. Patrick's College; Rev. M. S. H., as Pastor of St. Patrick's Church; Rev. S. W., as Pastor of St. John the Evangelist Church; Rev. F, W. H.. as Pastor of Holy Rosary Congregation; The Little Sisters of the Poor of St. Francis, a Corporation; Rev. C. R. R., as Pastor of Holy Cross Congrega- tion; Rev. J. C. G., as Chaplain and Di- rector of The New Foundling Asylum; The Ohio Trust Company, a Corporation; The House of Good Shepherd, a Corporation; The Young Men's Christian Association, a Cor- poration, and J. M. H., as executor of the last will and testament of F. A. M., deceased, Defendants. Petition. The plaintiffs say that on the day of , 10 , F. A. M., unmarried, and without issue, died leaving these plaintiffs as his only heirs and next of kin in the following relationship: The said F. F. M. and C. J. M. are brothers of said decedent; and the said F. A. B., J. W. B. and M. L. B. are nephews and niece, respectively, of said decedent, being the only heirs at law of C. B., deceased, who was a sister of said decedent. The said W. B. is the duly appointed, qualified and acting guardian of M. L. B., one of the plaintiffs herein. The said J. M. H. is the duly appointed, qualified and acting executor of the alleged last will and testament of F. A. M., deceased. These plaintiffs further say that the defendant. M. M. M., is the pastor of St. Joseph's Cathedral Congregation; that the defendants, M. M.. E. M. and C. M.. are minors of the ages, respectively, 16. 14 and 12 years, and that they reside and make their home with their parents, to-wit: F. F. M. and E. A. M., at Street, in the city of . Ohio: that the defendants, the Council No. , Knights of Columbus. The Little Sisters of the Poor of St. Francis, The Ohio Trust Company, The House of Good Shepherd and the Young Men's Christian Association of MERWINE ON REAL ACTIONS. 732 , Ohio, are corporations existing under the laws of the State of Ohio, and doing business in the city of , Ohio. The said R. J. M. is the president of St. Patrick's College. The said M. L. H. is the pastor of St. Patrick's Church. The said S. W. is pastor of St. John the Evangel- ist Church. The said F. W. H. is the pastor of the Holy Rosary Congre- gation. The said C. R. R. is the pastor of Holy Cross Congregation. The said J. C. G. is chaplain and director of The New Foundling Asylum. The defendant, K. F., is the mother of said F. A. M. Plaintiffs further say that they are the same persons who are named in the alleged will of the said F. A. M., deceased, a copy of which alleged will is hereto attached and marked "Will;" that on the day of , 19 , a certain paper writing purporting to be the last will and testament of said F. A. M., bearing date of the day of , 19 , was presented to the Probate Court of County, Ohio, for probate and the same was probated on the day of , 19 ; that said paper writing remains in said court as a part of the records thereof, copy of which is hereto annexed marked "Will" as an exhibit, and that letters testamentary were issued thereon by said Probate Court to the said J. M. H., defendant, who is now acting as executor of said estate. By the terms of said paper writing the defendants and these plaintiffs are named as several devisees of said F. A. M., deceased, and that plaintiffs and said defendants are the only persons in any wise interested in the estate of said decedent, either as heirs and next of kin of said decedent, or as beneficiaries under the aforesaid alleged will. Plaintiffs aver that said paper writing is not the last will and testament of said F. A. M., for said F. A. M. at the date of said paper writing, was not of sound mind and disposing memory, but by reason of a progressive disease with which the said decedent was then afflicted, he was mentally incapacitated from making a will or a proper distribution of his property, and was persuaded and coerced into signing said paper by undue influence of certain officials and dignitaries of the church and others conspiring with said officials and dignitaries, and that by the actions of said persons aforesaid they influenced and prejudiced the weak mind of the said F. A. M. Plaintiffs say that said alleged will was not executed as required by law: that the said paper writing and the bequests therein were procured and made by the exercise on the part of said officials and dignitaries, and others, of undue influence over the mind of said F. A. M., so that the paper writing does not, because of such undue influence, and because of his im- paired mentality, as aforesaid, speak of his wish and will. Plaintiffs therefore pray that the issue be made up and tried as to whether said paper writing is the last will and testament of said F. A. M.; that said will be set aside; that the same be found and declared not the last will and testament of said F. A. M., and that the defendants be required to answer the above complaint, and for such further orders and other relief as may be authorized by law. ■ _ > Attorneys for Plaintiffs. (This petition should be verified by all of the plaintiffs.) (Here attach to the petition a copy of the will.) 733 FORMS. No. 45G The precipe. To the Clerk: Issue summons to the sheriff of County, Ohio, returnable according to law, for the within named defendants', The Young Men's Christian Association, The Ohio Trust Company, M. M. M., a minor 16 years of age, E. M., a minor 14 years of age, and C. M., a minor 12 years of age, all of said minors residing with their parents, F. F. M. and A. E. M., at Number Street, Ohio. Endorse the said summons "An action to set aside the will of F* A. M." Attorneys for Plaintiffs. No. 457. The summons. The State of Ohio, County, ss.: To the Sheriff of said County, Greeting: You are commanded to notify The Young Men's Christian Association, The Ohio Trust Company, M. M. M., a minor 16 years of age; E. M., a minor 14 years of age; C. M., a minor 12 years of age, all of said minors residing with their parents, F. F. M. and A. E. M„ at No. ■ — — - Street, , Ohio, that they have been sued by F. F. M., C. J. M., F. A. B., J. W. B. and W. B., as Guardian of M. L. B. in the Court of Common Pleas of County, Ohio, and that unless they answer by the day of , in the year of our Lord one thousand nine hundred and , the petition of said plaintiffs against them, filed in the clerk's office of said County, such petition will be taken as true and judgment rendered accordingly. You will take due return of this summons on the day of ■ , in the year of our Lord one thousand nine hundred and . Witness my hand and the seal of said Court this day of , in the year of our Lord one thousand nine hundred and . -, Clerk of the Court of Common Pleas. No. 458. The sheriff's return of said summons. The State of Ohio, County, ss. : Beceived this writ on the day of , in the year of our Lord one thousand nine hundred and , at o'clock M., and pursuant to its command, on the day of , in the year of our Lord one thousand nine hundred and , I served the same by personally handing a true and duly certified copy of this writ with all the indorsements thereon, to each of the following of the within named defendants: M. M. M., a minor 16 years of age; E. M., a minor 14 years of age, anu C. M., a minor 12 years of age. Also the same day I served the same by leaving a true and duly certified copy of this writ with all the indorsements thereon at the usual place of residence of F. F. M., father of each of the said M. M. M., a minor 16 years of age; E. M., a minor 14 years of age, and C. M., a minor 12 years of age, not being able to find after due and diligent search, a guardian for either of the said MERWINE ON REAL ACTIONS. 734 M. M., E. M. and C. M., minors aforesaid within my bailiwick. Also on the same day 1 served the within named defendant, The Young Men's Chris- tian Association, by personally handing a true and duly certified copy of this writ with all the indorsements thereon to , Secretary of the said The Young Men's Christian Association, the President, Yice-President or other chief officer of the said The Young Men's Christian Association not found within my bailiwick. Also on the same day I served the within named defendant. The Ohio Trust Company, by personally handing a true and duly certified copy of this writ with all the indorsements thereon to J. W. B.j President of the said The Ohio Trust Company. G. J. K., Sheriff. No. 459. The certificate to the probate court by clerk, on the filing of the ^etition to contest will. The State of Ohio. County, ss. : To the Honorable the Probate Court of County, Greeting: Notice is hereby given that on the day of , 19 , in the Court of Common Pleas of said — — — - County, F. F. M., and others, filed their certain petition against Rev. M. M. M., and others, the same being cause number , in said court, and which is still there pending, to contest the validity of the will of F. A. M., deceased, lately probated in your court and admitted to record therein. You will, therefore, as required by law forthwith transmit to our said Court of Common Pleas, the said will, the testimony adduced on the probate thereof, and all papers relating thereto, with a copy of the order of probate, attaching the same together and certifying the same under t!ie seal of your honorable court. In Testimony Whereof I have hereunto signed my name and affixed the seal of said Court on the day of , 19 . ( 'Jerk. No. 460. Journal entry and certificate of probate court on con- test of will. In the Matter of the Will of F. A. M., deceased. . 10 . Journal Entry. Order to Transmit Will, etc.. to the Court of Common Pleas. This day the court received from the Clerk of the Court of Common Plea.s of this county a certificate that a petition has been filed in said Court of Common Pleas to contest the validity of the will of F. A. M., deceased, admitted to record and recorded in this court; it is therefore ordered that the wili. testimony and all papers relating thereto, with a copy of the order ' of probate, attached together and certified under the seal of this court, be forthwith transmitted to said Court of Common Pleas. , Probate Judge. 735 FORMS. The State of Ohio, County, ss. : I, Judge and ex officio Clrrk of the Probate Court within and for said county, and in whose custody the files, journals and records of said court are required by the laws of the State of Ohio to he kept, do hereby certify that the foregoing entry is taken and copied from tin- journal of the proceedings of said court; that the same has been compared by me with the original entry on said journal, and that it is a true and correct copy thereof. 1,\ Testimony Whebeof, T have hereunto subscribed my name officially, and affixed the seal of said court, at , Ohio, this — day of , 19 . Judge ami ex officio Cleric of said Probate Court. No. 461. Certificate to court of common pleas on contest of will. To the Court of Common Pleas of said county, I, Judge and ex officio clerk of the Probate Court of said county, do hereby certify that the papers hereto attached, numbered from 1 to , are the will, testi- mony and all the papers relating to the will of F. A. M., deceased, with a certified copy of the order of probate thereof. In Testimony Whereof, I hereunto subscribe my name officially and a (fix the seal of said court at Ohio, this day of August, 1907. Judge and ex officio Clerk of Probate Court. No. 462. The joint answer of defendants in the action. Now come the defendants. Rev. M. M. M., as pastor of St. Joseph's Cathedral Congregation; Council Xo. . Knights of Co- lumbus, a corporation; Rev. R. J. M., as President of St. Patrick's College; Rev. M. L. EL, as pastor of St. Patrick's Church; Rev. S. \\\. as pastor of St. John the Evangelist Church; Rev. F. W. H., as pastor of Holy Rosary Congregation; The Little Sisters of the Poor of St. Francis, a corporation; Rev. C. R. R., as pastor of Holy Cross Congregation; Rev. J. C. G., as chaplain and director of The New Foundling Asylum: The Ohio Trust Company, a corporation; The House of Good Shepherd, a corporation ; The Young Glen's Christian Association, a corporation, and J. M. H., as executor of the last will and testament of F. A. M., deceased, and for their answer to the petition admit, that on the day of , 190 , F. A. M. died unmarried, and without issue, leaving the plaintiffs as his only heirs and next of kin, in the relationship as set forth in the petition; that the plaintiff, W. P>., is the duly appointed, qualified and acting guar- dian of M. L. B., one of the plaintiffs; that the defendant, J. M. H., is the duly appointed, qualified and acting executor of the last will and testament of said F. A. M., deceased: that the defendants are the same persons who are mentioned in the said last will and testament of said F. A. M., de- ceased, as devisees and legatees; that the copy of the said last will and testament attached to the petition marked "Will" is a true copy thereof; MERWINE ON REAL ACTIONS. 736 that on the day of , 190 , the said last will and testament of said F. A. M., deceased, was by the Probate Court of County, Ohio, duly admitted to probate; that letters testamentary thereon were issued by said Probate Court; and that the plaintiffs and the de- fendants are the only persons in anywise interested in the estate of said decedent, either as heirs and next of kin, or as beneficiaries under the said last will and testament. Defendants deny each and every other allegation contained in said peti- tion not herein specifically admitted, and aver that said last will and testa- ment is the valid last will and testament of said F. A. M., deceased. Wherefore, The defendants pray that said last will and testament may be found and declared to be the valid last will and testament of said F. A. M., deceased, and that the petition may be dismissed, and for all other proper orders and relief. Attorneys for Defendants. (The answer is verified as in other cases.) No. 463. The verdict of the jury sustaining the will. (Same caption as in the petition.) We, the Jury, being duly impaneled and sworn, do find that the paper writing described in the petition and produced at the trial of this case, purporting to be the last will and testament of F. A. M., is the last will and testament of said F. A. M., deceased. — , Foreman. No. 464. Motion for new trial. (Same caption as in the petition.) Now come the plaintiffs and move the court to set aside the verdict herein, finding that the paper writing described in the petition, and pro- duced and offered in evidence at the trial of this case, purporting to be the last will and testament of F. A. M., deceased, is the last will and testament of F. A. M., deceased, ano* further move the court to set aside its judgment confirming said verdict and grant the plaintiffs a new trial herein, for the reasons following, to-wit: First. — Because said verdict was and is contrary to law. Second. — Because the verdict is contrary to the manifest weight of the evidence. Third. — For other errors occurring during the # trial of the above cause, which errors appear upon the record. Attorneys for Plaintiffs. 737 FORMS. No. 465. The judgment of the court overruling the motion for a new trial and sustaining said will. (Same caption as in the petition.) Entry. The parties hy their attorneys came this day and the issues having been made up by the pleadings herein, a jury was called, to-wit: -, , etc.. wIki. being duly impaneled and sworn according to law, rendered a verdict finding that the paper writing described in the petition, and produced and ottered in evidence at the trial of this case, purporting to be the last will and testament of F. A. M., deceased, is the last will and testament of said F. A. M., deceased. It is therefore considered and adjudged by the court that said paper writing produced at the trial and ottered in evidence, purporting to he the last will and testament of F. A. M., deceased, is the last will and testament of said F. A. M., deceased. And this cause coming on further to be heard by the court upon the motion of the plaintiffs filed herein to set aside the verdict and for a new trial, was submitted to the court and the court upon consideration does find said motion not well taken and ought to be overruled. It is there- fore considered and adjudged by the court that said motion of the plain- tiffs to set aside the verdict heretofore rendered herein and for a new trial be and the same hereby is overruled. No. 466. The certificate of the clerk of the court of common pleas, with copy of final judgment, to the probate court, after final judgment is rendered in the action to contest the validity of a will. The State of Ohio, County, ss.: To the Honorable the Probate Court of County, Oreetinq: There is herewith transmitted to your said Probate Court a certified copy of the final judgment in the action No. , lately pending in our said Court of Common Pleas, to contest the validity of the will of F. A. M., deceased, in the action of F. F. M., and others, against Rev. M. M. M., and others and also the will and other papers heretofore transmitted by your said court to our .-aid Court of Common Pleas. Said final judgment is in the words and the figures following, to-wit: (Here copy the judgment at No. herein.) In Testimony Whereof, T have hereunto affixed my hand and the seal of said court on this day of , 190 . , Clerk. MERWINE ON REAL ACTIONS. 738 No. 467. The application for the appointment of a guardian ad litem in the action to contest a will. (Same caption as in the petition.) Now come and , minor defendants over th& age of fourteen years, and make application for the appointment of a guardian ad litem for them in this action, and request that be appointed as such guardian ad litem. No. 468. The order of the court appointing a guardian ad litem for minor defendants. (Same caption as in the petition.) EiVTRY. Now come ami . minor defendants herein, over the age of fourteen years, having been duly served with summons herein, and make application for the appointment of a guardian ad litem for them in this action; and it having been made further to appear to the court that the defendants, and , are minors under the age of fourteen vears and have been dulv and legally served with summons herein, on motion of , a friend for said minor defendants and , it is ordered by said court that said be and she is hereby appointed guardian (id litem herein for said and defendants. And the said court further finding that said and have requested that be appointed as guardian for them also, on their application, it is ordered by said court that said be and she is hereby appointed guardian ad litem for said minor defendants and . And now comes the said and accepts said appointment as such guardian ad litem for all said minor defendants and files herein forthwith her answer herein as such guardian ad litem. No. 469. The answer of guardian ad litem for minor defend- ants in the action to contest a will. (Same caption as in the petition.) Answer of Guardian Ad Litem for Minor Defendants. Now come the defendants, , , . and by , their duly appointed guardian ad litem for this suit, and for answer to plaintiffs' petition herein, deny all the allegations therein con- tained in any way prejudicial to said minor defendants, and further say that they are of tender years, and not acquainted with the law in such cases, and therefore ask th>' court to protect their rights in this cause, and for such relief as may be just. 739 FORMS. No. 470. The order entered on the journal making up the issue, when the issue is not made by the pleadings. (Same caption as in the petition.) Entry. In this case it is ordered by the court that this cause be submitted to and tried by a jury in accordance with law, and that the following issue be so submitted t<» and tried by a jury, to-wit: "Is the writing produced the last will [or codicil, as the case may be] of the said F. A. M., deceased, or not ?" No. 471. Another form for a petition. S. W. and W. Z., Plaintiffs, vs. No. . C. Z.. M. Z., R. Z., M. Z., F. Z., L. V.. M. Z.. E. Z., W. S., C. S., Sr., C. S., Jr., W. C, L. C. E. P., as Executor of F. W. Z., deceased, Defendants. Petition. Plaintiffs say that on or about the day of , 19 one F. W. Z., then a resident of , in said county of . died testate, leaving a last will and testament of that date, which will was, on the day of . 19 , duly probated in the probate court of county, Ohio, a copy of said will is hereto attached, marked "A,'' and made a part hereof. Said F. W. Z., died leaving the following named persons, his widow and heirs at law. to-wit: C. Z., widow, residing at . County. Ohio. M. Z., R. Z.. M. Z.. F. Z., heirs of H. Z., deceased, residing in the State of . L. I)., wife of M. V., residing in County, Ohio, M. Z. and E. Z.. of the same place. The following named persons are the legatees of said will, to-wit: W. S., C. S., Sr.. C. S.. Jr., W. C, and L. C. all residing in County, Ohio. Said E. P.. of County, Ohio, is the duly qualified and acting executor of said deceased, F. W. Z. Said F. W. Z. died seized in fee of considerable real estate and the owner of some personal estate, all of which is described in said pretended will. Said plaintiffs further represent that said will so probated as aforesaid is not the last will and testament of said deceased, because at the time of the execution thereof, said F. W. Z. was not of sound mind and disposing memory and did not have sufficient mental capacity to make a will. Said plaintiffs further say that said executor, notwithstanding the facts aforesaid, is threatening to settle and distribute the estate of said deceased in accordance with the terms of said will as aforesaid probated. Plaintiffs therefore pray that said pretended will and the probate thereof MERWINE ON REAL ACTIONS. 740 may be set aside and held for naught, and that until the final hearing thereof said executor may be restrained from proceeding under said will and for all proper relief. , Attorneys for Plaintiff a. (This petition is verified as in other cases and a copy of the will is attached thereto. ) No. 472. Another form for the answer of defendants. (Same caption as in the petition foregoing.) Defendants admit each and every allegation set forth in plaintiffs' peti- tion except the allegation "That said will, as probated, is not the last will and testament of said decedent, because at the time of the execution thereof said F. W. Z. was not of sound mind and disposing memory and did not have sufficient mental capacity to make a will," which allegation the said defendants deny. The above named defendants, further answering said petition, aver t ,,0 + said will, as probated, is the last will and testament of the said F. W. Z., and that said F. W. Z., at the time of the execution thereof, was of sound mind and disposing memory, and had sufficient mental capacity to make and execute a will. This answer is verified as in other actions. [Note. — Both taken from Wagner v. Ziegler, 44 0. S. 60.] No. 473. Petition to contest will for the reason that the al- leged testator was not of a sound and disposing mind and memory, and was under undue influence and restraint, in attempting to make the same. Court of Common Pleas, County, Ohio. , Plaintiff, vs. , and , and f- , as executor of , deceased, Defendant. Petition. On or about the day of , 10 , the said • died, and said has been duly appointed, has qualified anil is acting as the executor of said deceased. A certain pYiper writing, purporting to be the last will and testament of said , deceased, and bearing date of , , 10 , was probated in the probate court of said County. Ohio, on the day of , 10 — . A certified copy of such said purported last will and testament, with the order of probate thereof in the said pro- hate court attached thereto, is filed herewith, and made a part hereof, marked Fxliibit "A." The said defendant. , and the said , widow of said . deceased, are the sole legatees and devisees of said purported will, 741 FOKMS. and the plaintiff and said are the sole heirs at law of aaid decedent. Said paper writing, purporting to be the last will and testament of said — , is not his valid last will and testament, for that, at the time of the said alleged making of said paper writing, the said alleged testator was not of sound and disposing mind and memory, and was under undue influence and restraint, in so attempting to make the same. Plaintiff says further, that (here should be alleged the facts constitut- ing undue influence and facts showing that the alleged testator did not have a sound and disposing mind and memory). Wherefore plaintiff prays that said order of probate be set aside and held for naught, and that said alleged, last will and testment of said , deceased, be adjudged to be not the last will and testament of said deceased; for costs, and all relief to which the plaintiff may be entitled in the premises. ' Attorney for Plaintiff. (This petition is verified as in other cases.) No. 474. Petition to contest a nuncupative will. On or about the day of , 19 , the said died, and said has been duly appointed, has qualified, and is acting as executor of said , deceased. A certain paper writing, purporting to be the nuncupative will of said , deceased, bearing date of the of 19 , was probated in the Probate Court of said County, Ohio, on the day of , 19 . A duly certified copy of such said purported nuncupative will, with the order .of probate thereof in the said probate court is attached hereto, filed herewith and made a part hereof, and marked Exhibit "A." Said defendant, , and the said — , widow of said , deceased, are the sole legatees and devisees of said purported will, and the plaintiff and said are the sole heirs at law of said decedent. Said paper writing, purporting to be the nuncupative will of said , is not his valid last will and testament. Said alleged verbal will was not made by said . in his last sickness, or reduced to writing and subscribed by two competent disinterested witnesses, one of said witnesses, , being at the time insane, and the other, »—— , one of the beneficiaries of its provisions; nor was it reduced to writing or so subscribed by said purporting witnesses within ten days after the .speaking of the supposed testamentary words, which were substantially different from the wording, language and provisions of said paper so probated, as aforesaid, as the last will and testament of said , deceased, nor did said , call upon any person present, at the time of the alleged speaking of the said supposed testamentary words, to bear testimony to such disposition as his will. MERWINE ON REAL ACTIONS. 742 Wherefore plaintiff asks that said order of probate be set aside and held for naught, and that such alleged verbal last will and testament of said , deceased, be adjudged to be not the valid last will and testament of said deceased; for costs and all relief to which the plaintiff may be entitled in the premises. (This petition is verified as in other cases.) [NOTE. — The two foregoing forms are adapted from Yaple's Code Plead- ings; Subject: Proceedings in the Contest of Wills. j INDEX. [Figures preceded by "No." refer to Forms; otherwise to Sections.] A Action — Consequential injury to land transitory, 10. Mandatory injunction to abate nuisance, transitory, 10. Manner in which action to sell real estate is begun, 4. r o recover real estate must be brought in county where land is, 7. To partition must be where land is, 7. To sell real estate under mortgage lien or other charge, 7. Local and transitory, 10. Local action denned, 10. Transitory action denned, 10. By which real estate is sold in attachment, 141. By which guardian sells ward's real estate, 245. By which an entailed estate is sold. 100. By which an assignee sells real estate, 201. By which a receiver sells real estate, 288. By which an administrator or executor sells real estate, 206. By which real estate is sold in partition, 295. By which real estate of a church or other religious organization is sold, 347. By which a mortgage is foreclosed, 303. By which a mechanic's lien is foreclosed, 373. By which a tax lien is foreclosed, 397. By which dower is assigned, 452. By which real estate is condemned, 502. By which street or alley is vacated, 562. By which title is quieted, 566. By which real estate is recovered, 579. By which a will is set aside or sustained, 611. By which decedent's land contracts are performed, 605. Accounting — Of rents and profits in partition, 329. Administrators — May not bid at own sales, 111. 743 744 INDEX. [Figures preceded by "No." refer to Forms; otherwise to Sections.] Administrator's sale of real estate — Notice of proceedings, 200. Care of counsel in, 200. Defects of title by, 200. Former proceedings in, 200 Power statutory, 200. When application to be made, 207. Common pleas court, 207. When application should be made in probate court, 207. Power of probate courts as to, 208. When application to be made, 209. Made for payment of legacy, when, 210. Limitation as to the action, 211. No limitation as to claim once allowed, 211, 211 note. Right to sell exists as long as claims unpaid. 211, 211 note. The estate or interest that may be sold, 212. Estates fraudulently conveyed may be sold, 21:;. Duty as to fraudulent conveyances, 214. May set aside deed and ask for sale in one action, 214. Debts authorizing sale, 215. Administrators dc bonis non to complete proceedings, 210. Petition in the action, and what it must contain, 217. Who should be parties to the action, 217. The title to purchaser. 217. Duty as to lienholders, 217. Marshaling of assets, 218. Sale prevented, how, 219. Bond for, 219. Widow may give bond to prevent sale, 219. Service on defendants, 221. Procedure in the action, 220. Summons or notice may be served by plaintiff, 221. Guardians ad litem no power to consent to sale, 222. None to be appointed when prayer of petition not contested, 222. Sale to pay debts only, 223. Terms of sale, 223. Jury may be had, 223. Sale by heir of his interest, effect of, 224. Estate encumbered by dower, 225. Whole estate to be sold, when, 220. Bond additional, 220. Costs in the action, 22S. Appraisement, 229. Appraisement when no dower assigned, 229. Appraisement. See Chapter II. Appraisement when dower and homestead to be assigned, 230. index. 745 [Figures preceded by "No." refer to Forms; otherwise to Sections.] Administrators sale or real estate— Continued. When lands in more than one county, 23ft. Law as to homestead in. 230. Application for homestead, 230. Dower charge on land. 231. Vacancy in appraisers. 232. Appraiser's duty. 232. Appraiser's fees. 232. Notice of sale, requirement as to, 234. Notice of sale in foreign language, 235. Amount for which real estate may lie sold, 236. Public sale, 230. Private sale, 230. Parcels may be sold, 236. Return of sale, 238. Confirmation of sale, 238. Sale may be for cash, 238. Distribution of notes, 238. Deed to the premises, 230. Deed as evidence, 239. Proceeds of sale applied, how, 240. Will may not require action to sell, 241. Foreign administrator may sell, 242. Manner of his sale, 242. Bond of foreign administrator. 243. 244. Surplus money from sale to be regarded as land, 244. Administrators — Forms Petition in common pleas to sell lands conveyed by decedent in fraud of creditors, Xo. 04. Precipe, Xo. 05. Summons and sheriff's return on, Xos. 06, 07. Summons and return from another county, Xos. 03, 99. Answer and cross-petition, setting up building ^and" loan mortgage Xo. 100. " ' For another answer in the action, Xo. 102. Of entry appointing guardian ml litem, No. 103, Of answer of guardian ad litem, No. 103. Of decree setting aside conveyance and ordering sale of real estate in No. 105. Of order of appraisement. Xo. 106. Of administrator's return of his proceedings in. No. 107. Of the oath of appraisers, Xo. 108. Of entry confirming appraisement and ordering sale of real estate No. 109. Of order of sale from clerk to administrator, Xo. 110. Of administrator's notice of public sale, Xo. 111. 746 INDEX. [Figures preceded bv "No." refer to Forms; otherwise: to Sections.] Administrators — Forms — Continued. Of proof of publication of sale. No. 111. Of administrator's return of his proceedings, No. 113. Of confirmation of sale, order for deed and for distribution, No. 114. Of administrator's deed in such case, No. 115. Adultery — Bars dower, when, 471. Advancements — In partition, 337. Hotch potch, 337. liy estate, 338. Greater or less than share in partition, rule, 339. When wholly real or personal property, 340. Value expressed in deed, 341. Various instances of, 341 note. Affidavits — In attachment, form, No. 49. For service by publication in attachment, form No. 53. In support of motion to discharge attachment, 178. Affidavit in attachment, 158. May be made by whom, 159 note. Form for in application to have decedent's real estate subdivided in building lots, No. 147. Form for in service by publication, No. 155. Form for in motion to set aside appraisement. No. 159. Form for by assignee to sell real estate at private sale. No. 211. Form for, by guardian to sell real estate at private sale. No. 188. Guardian's affidavit of such sale. No. lf)0. The affidavit for service by publication in partition proceedings, No. 293. Affidavit in proof of insanity of a defendant. Xo. 311. Of citizens as to sale of real estate in which an insane wife has dower. No. 384. For service by publication in the action to quiet title, No. 429. Agent — To pay tax, when, 400. Alimony — Lien of alimony judgment, 94. INDEX. 747 [Figures preceded by "No." refer to Forms; otherwise to Sections.] Alley— Vacation of in city, village or hamlet, 562. Reverts to owner, when, 503. Petition for and procedure in, 504. Not to he closed until damages paid, 505. Alley — Forms for — Petition for. No, 424. Publication of legal notice, No. 425. Proof of publication, No. 426. Order and decree vacating, No. 427. Amercement — Of sheriff for failure to perform duties under executions or sale of real estate, 140. Answers — Forms for — In cognovit, No. 2. In action to set aside deed, and for marshaling liens, No. 25. Answer and cross-petition in action on judgment, and to marshal liens. No. 26. Setting up life estate in action, No. 38. Setting up mortgage lien on real estate, No. 39. Of judgment debtor, No. 39. Of defendant in attachment suit, No. 59. In attachment, No. 59. In sale of an entailed estate, No. 85. In sale of an entailed estate of trustee, No. 80. Of guardian ml litem by an administrator to pay debts. Nos. 104, 144. In action to set aside fraudulent deed, Nos. 25, 26, In action to sell real estate under foreign levy — Setting up life estate, No. 38. Setting up mortgage. No. 40. Setting up building and loan mortgage. No. 100. Answer generally, No. 102. Of widow, asking for an assignment of dower. No. 117. Of widow, consenting to sale, waiver of dower by inch's and hounds, and asking to be endowed out of proceeds of sale. No. 140. Trustee for insane defendant, Nos. 145. 196, 313. Disclaiming interest in real estate in controversy. No. 170. Of widow, setting up dower. Nos. 194. 1°7. Of wife, in an action by assignee, to sell r°al es f ate Xo. 204. Of assignor, in assignee's sale of real estate. No. 207. Setting up mortgage in assignee's sale of real estate, No. 208. Of guardian for infant in partition. No. 260. Of widow in partition, No. 262. In partition. No. 281. 748 INDEX. [Figures preceded by "No."' refer to Forma: otherwise to Sections.] Answers — Forms for — Continual. Ill foreclosure of mechanic's lien, No. 331. Guardian ad litem in sale of real estate in which insane wife has dower, No. 381. In condemnation proceedings, No. 393. In action by administrator to sell lands to pay debts, No. 102. Of guardian ad litem in assignment of dower, No. 309. Of defendants in ejectment, No. 437. Of defendants in completion of defendant's land contract, No. 449. Of widow in completion of land contract. No. 450. In partition, No. 281. In cross-petition, No. 281. In setting up mortgage on estate. No. 282. Widow setting up dower in partition, No. 262. Of guardian for an infant in partition, No. 260. Of guardian ad litem for infant in partition, No. 265. Answer to petition in ejectment — Statute of limitations in ejectment, 582. Equitable title and right under possession, 582. Answers and cross-petitions — Forms for — To set aside fraudulent deed, No. 46. Of trustee setting up a mortgage lien. No. 209. Setting up mortgage claim in partition, No. 282. In an action to foreclose mechanic's lien, No. 331. Appeal — Condemnation proceedings in, 518. In partition. 346. Appraisement — T5eal estate under execution, 103. To be made, how, 103. Form of. No. 8. Appraisers can not purchase, 104. Must be upon actual view, 105. Not sufficient to have seen property at other times, 105. Interior of building must be inspected by appraisers, 105. Form of motion to set aside. No. 158. Form for order setting aside and ordering new, No. 160. Form for order coni^ for new appraisement, No. 161. Form for order court for new appraisement after having been twice offered for sale. No. 161. Form for order of court, fixing price at which real estate may be sold, No. 162. l.NDKX. 749 [Figures preceded l>v "No." refer to Forms; otherwise to Sections.] Appraisement — Continued. Parol evidence to show mistake in. No. 106. Incumbrance not deducted in, No. H'7. Crops not included in, lu7. Must be made under oath, 107. Copy must be filed with clerk, 107. Objection to, must be made before confirmation, 1e made, when, 132. Lands must be appraised by freeholders. 103. Upon actual view, 105. Appraisers can not be purchasers, 104. Parol evidence to show mistake in, 107. Real estate may be sold without appraisement, 108. Sale may not be for less than two-thirds of, 110. New appraisement may be made, when, 132, 133. Form for appraisement in sale of real estate under vendi exponas, No. 8. Form for appraisement and oath of appraisers in sale of real estate under attachment proceedings, No. 67. In sale of real estate by an administrator to pay decedent's debts, 229, 230. Forms for appraisement, order for appraisement, oath of appraisers and confirmation of appraisement in the action to pay debts, Nos. 106, 108, 109, 122, 124, 125. In guardian's sale of real estate, 256. Order for guardian's sale of real estate, Nos. 171, 172. Confirmation of guardian's sale of real estate, No. 1 7 3. Substitution of appraiser in guardian's sale of real estate. No. 195. In an assignment for benefit of creditors, 271. Application for appointment of appraisers by receiver. No. 236 Receiver's report of appraisement, No. 237. Appraiser's report in receivership — Their oath, and confirmation of, Nos. 237. 238, 239, 240. In partition cases, 316. Election of plaintiff to take at appraisement in partition. No. 27o. Report of . in foreclosure of mortgage — Appointment and oath, Nos. 316. 317. In foreclosure of mechanic's lien, Nos. 337. 338. In foreclosure of tax lien — Appointment, oath. Nos. ■">.">:?. 354. 355, When court may fix price at which real estate may be sold. 132. New appraisement and terms of sale of mortgaged premises, 133. When sale may be made one-third cash, one-third nine months and one-third eighteen months, 133. Form where real estate sold under execution No. 8. Form for oath of appraisers. No. 8. Form in attachment proceedings, No. ale. 284. Release of mortgage liens, 285. Town lots — Laying out, 286. Confirmation of sale, 287. Order for deed. 287. Deferred payments. 287. Mortgage for deferred payments in. 287. Assignment — Forms for — In sale of real estate by an assignee for benefit of creditors, Xos. -'00 to 222. For deed of assignment. No. 200. For acceptance. No. 200. For petition. No. 202. For precipe for summons. No. 203. For answer of wife. No. 204. For answer of assignor. Xo. 205. For summons in. No. 2<)ii. F'or sheriff's release. No. 207. For note and mortgage. Xo. 20S. For decree of sale, Xo. 209. For affidavit for private sale. No. 211. For order to sell at. No. 212. For assignee's return. Xos. 214, 215. For confirmation private sale, Xo. 216. For deed to purchasers at private sale, No. 217. For order to sell at auction. Xo. 218. For report of assignee. No. 210. For legal notice, No. 220. For confirming sale at public auction. No. 221. For deed at public auction. No. 222. Attachment — See subject, "Forms." Subject of 141 to 189. inclusive. Genera] principles. 141. Purely statutory. 141. Clear case necessary. 141. Auxiliary remedy. 142. Functions of writ. 142. The action deemed commenced, when. 143. Clerk authorized to issue writ of. when. 144. Cross-petition entitled to writ. 144. Jurisdiction, how secured, 145. 752 INDEX. [Figures preceded by "No." refer to Forms; c*herwise t>« Sections.] Attachment — Continued. Summons as to non-resident in, J 15. Service by publication, 147, 14i». Affidavit for service by, 14S. When service by publication complete, L51. Personal service out of State, 152. Grounds for, 152. Foreign corporation, 153. Non-resident of State, 154. Meaning of term •'resident,*' 154. Absconding with intent to defraud. 155. Fraudulent disposition of property. 156. What is not fraudulent disposition of property, 156. Personal obligation, 157. Fraudulent obligation, 157. Requisites of affidavit, 158. Filing of affidavit is jurisdictional. 159. In what actions the writ may issue, 160. Bond required, 162. The order of, 163. Its command and to whom directed, 163. May issue to different counties, 163. When returnable, 164. Order of execution of, 165. Manner in which order of, executed, 166. To whom property to be delivered, 167. Several may be made by same officer. 168. When other attachments may be had, 169. Officer's return of writ, 170. Property bound from what time. 17i>. How discharged, 170. Bond in the action for causing death, 171. Bond in vacation, 172. Effect of judgment in, 173. Proceedings after judgment, 174. Priority, on sale, 174. Reference may be had, when, 174. Effect of death of defendant. 176. Additional bond, 177. Motion to discharge attachment. 17S. Error proceedings in, 170. Bond in error proceedings, 180. Personal representative may prosecute error in, when, 181. Limitation in error proceedings, 181. Before debt due, 182. By whom granted, 182. By court or judge, 182. INDEX. 7."):5 [Figures preceded by "No." refer to Forms; otherwise to Sections.] Attachment — ( 'on t in tied. Action may be dismissed without prejudice, when. 1S4. Before debt due — Continued when, 187. Action may be brought in justice court, when. 189. A proceeding in error, 141 note. Not according to course of common law. 141 note. When real estate sold under execution may levy on other property, 142 note. No action in until petition filed, 143 note. Summons must be issued, 143 note. Domicile includes residence with intent to remain, 144 note. Order for deed, No. OS. Sheriff's deed to purchaser, No. 69. Attachment — Forms for— Petition in. No. 48. Affidavit for, No. 49. Bond in, No. 50. Order of by clerk to sheriff, No. 51. Sheriff's return in, No. 52. Affidavit for service by publication, No. 53. Proof of publication for non-resident in. No. 55. Finding as to correctness of legal notice, No. 55. Decree of sale of attached property as upon execution. No. 56. Motion to set aside order of sale in, No. 57. Order sustaining motion, No. 58. Answer of defendant in, No. 59. Reply of plaintiff in. No. 60. Verdict of jury in. No. 61. Motion for new trial in. No. 62. Order overruling motion for new trial in. No. 64. Sheriff's return of sale in. No. 65. Proof of publication in. No. 66. Appraisement of real estate and oath of appraisers in. No. 67. Confirmation of sale, distribution and order for deed to purchaser of attached property in. No. 68. Sheriff's deed in. No. 69. Attorney — Duty to list property for taxation. 402. Summons may not be served on. when. 22. Fee in partition taxed as costs in partition, 333. Amendments — Court may allow in condemnation proceedings, 531. 754 INDEX. » [Figures preceded by "No." refer to Forms; otherwise to Sections.] Antenuptial contract — I discussion of, 463. See "Subject Dower." Auditor — Duty in tax sale. 414. 415. and following. Of State's duty as to, 414. To make deeds to purchaser at delinquent tax sales, 425, 435. Minutes of, in delinquent tax sale. 437. 138. Duty as to lands redeemed, 43S. Duty as to deeds for land sold in other county, 440. To transfer land sold for taxes, 441. B Bankruptcy — Proceedings in, 292 to 294. Appointment of trustee, 292. Trustee, power, 292. Appraisal of real estate, 293. Oath of appraisers, 293. Public sale in. 294. Private sale in, 294. Petition for sale, 294. Amount for which sale may be made in, 294. Sale subject to wife's dower, 294. Sale subject to encumbrance, 294. Sale discretionary with court, 294. Liens to attach to fund in sale, 294. Bankruptcy — Forms for — Order appropriating appraisers. No. 246. . Oath of appraisers, No. 247. The appraisement, No. 247. The appraisement, return, No. 247. Petition private sale, No. 248. Order to sell at private sale, No. 249. Entry confirming private sale, No. 250. Petition public sale, No. 251. Order to sell at public sale, No. 252. Petition and order for sale subject to lien. No. 253. For decree of sale at public auction, No. 254. For deed by trustee to purchaser, No. 255. Bill of exceptions — See subject, "Complete Record." To be filed, but not recorded, when, 86. index. 755 [Figures preceded by "No." refer to Forms; otherwise to Sections.] Bond— Of trustee in proceedings to sell an entailed estate, Nos. 78, 7!). In attachment, No. 50. To prevent sale of real estate by administration to pay debts, 219. Additional sale to pay debts, 225. To be given by foreign administrator's sale of real estate. 24."!. Dower in estate held under bond, 45... Of owner, when -street or highway to be opened, 517. Bond required of vendee in recoupment of liens, 592. Boat- Lien allowed for erecting, altering, repairing, etc., 377. Building— Value assessed in condemnation case, when part only on land, 513, 539. Election of owner as to, in condemnation cases, 539. Bridge — Lien for building, 377. Real estate condemned for, 505. c Caveat emptor— Term defined, 65. Applies to judicial sales, 65. Specific instances, 65. See "Judgments," 65. Cause of action — What may be joined in ejectment, 590. What may be united in ejectment, 590. Cancellation — Of conveyances in ejectment, 590. Certificate — To purchaser at delinquent tax sale, 422. Auditor's tax certificate assignable, 424. Auditor to make deed for, when, 425. Cemetery — Sale of lands and procedure, 348. Procedure and notice, 348. See subject "Church." Real estate condemned for, 505, 506. 756 INDEX. 1 Figures preceded by "No." refer to Forms; otherwise to Sections.] Church — Sale of property of, 347, o48, 349, 360, 361. Procedure in, 347. 348, 349. Salo <>i abandoned property, 340. Notice in sale of abandoned propertj in. 3.">t), 353. Decree of court in, 350. Procedure in conveyance of consolidated church, 351. Where action to be brought, 351. Who made parties, 351, 352. Church property — Forms — Petition to exchange and sell, Xos. 206, 302. Legal notice and proof of same. Nbs. 207. 303. Order of court, authorizing sale. Xos. 20S. 304. Report of sale, No. 299. Confirmation of sale, Xos. 300, 305. Deeds, Xos. 301. 306. Citizens — Form for affidavit of, where real estate is sold in which insane per- son has right of dower, Xo. 384. Clerk- Duty as to docket and records, 86, 87, 88. Precipe for summons directed to, 6. Duty of as to transcripts from justice and mayor's court, 04. Copy of appraisement of real estate filed with, 1<>7. Duties of clerk as to confirmation of sale, 118. Duty as to entering judgment against principal and surety, 135. Duty as to execution docket, and the index thereon, 13ti. Clerks — Forms for — Execution to sheriff, Xos. 4, 19, 21. Order of sale to sheriff under vendi, Xo. 7. Order of sale to sheriff, Xos. 28, 42. Order of attachment by clerk to sheriff, Xo. 51. Order directed by clerk to sheriff in sale of an entailed estate, Xo. 7". Order of appraisement issued by clerk to administrator, in sale of real estate to pay debts, Xo. 106. Order of sale from clerk to administrator in sale of real estate tc pay debts, Xo. 110. Writ of partition from clerk to sheriff, Xo. 267. Writ of dower from clerk to sheriff, No. 371. Order of sale in foreclosure, from clerk to sheriff, Xo. 315. Order of sale in foreclosure of mechanic's lien from clerk to sheriff, Xo. 366. Order of sale in foreclosure of tax lien, from clerk to sheriff, Xo. 349. Xotice bv clerk to committee in sale of insane wife's dower, Xo. 380. INDEX. 757 [Figures pi-eced-:: by "No." refer to Forms; otherwise to Sections.] Complete record — What constitutes, 84. Clerk may make. 84. May be waived, 84. When to be made, 85. Judge to sign, 85, 87. Shall consist of what, 86. Bill of exceptions to be filed, but not recorded, 86. Abbreviations of accounts or copies attached to pleadings, 86. Court to order completed in certain cases, 87. Appraisal of real estate not a part of, 107. Commissioner — Master Commissioner— May convey real estate, when, 120. Sheriff may act as, when, 121. Sheriff may be required to make sale for, 121. Compensation of, 121. Condemnation proceedings — Constitutional provision United States, 502. Constitutional provision State of Ohio, 502. Compensation to owner, 502. Necessity for, 503. Power in people for, 503. Power of municipal corporations as to, 504. Power strictly constitutional; 504 note. Can not restrict amount of real estate condemned, except when taken in bad faith, 504 note. Owner compensated where real estate taken for street. 504 note. May be assessed by front foot, 504 note. Municipality may appropriate for what purposes, 505. Real estate outside of municipality, 500. Resolution of council and notice, 507. Manner of notice, 507. Service by publication, 507. Municipality may appropriate for what purpose, 505. Real estate outside of municipality, 506. Resolution of council and notice, 507. Manner of notice, 507. Service by publication, 507. When application to be made, 508. Service of notice to owner, 509. Time for inquiry, 510. The view of the premises, 511. Guardian ad litem, 512. Dispute as to ownership to cause no delay, 512. 758 INDEX. [Figures preceded by "No." refer to Forms; otherwise to Sections.] Condemnation proceedings — Cont in ued. Assessment to be returned by jury, how, 513. Manner of conducting proceedings, 513. Building partly on land to be appropriated — Election of owner as to, 513, 539. Jury may assess for part, when, 515. Order as to payment of assessment, 515. Interpleader, 515. Costs, how assessed and paid, 516, 543, 55!), 500. Bond of owner where street or highway to be opened, 517. Review of proceedings, 518. Appeal in, 518. Effect of delay to take possession of in six months, 511*. Law governing appropriation of private property. 520. Probate court, exclusive jurisdiction, when, 521. Appropriation of real estate by a corporation, 522. In what case only may appropriation be made, 522. Proceedings when property belongs to minor, idiot, imbecile or insane person, 523. What the petition to contain, and where to be filed, 524. 525. Summons, its command service, 520. Service by publication, 527. Court to determine necessity for appropriation, before trial by jury, 528. Manner of securing jurors, 529. Separate trials in, 530. Amendments may be allowed, 531. Time of trial in, 532. Discharge of juries in, 532. Panel of jurors may be filled, how, 533. Jurors interrogated by the court, 533, 534. Oath to be administered to the jury, 535. Form of writ to the sheriff, 530. Duties of court to sheriff as to description of real estate. 537. Expense of writ of view, 537. Costs to be taxed in, how, 537. 538. Verdict and confirmation. 540. When corporation may have possession, 541, 542. Duty of the court when corporation fails to pay amount assessed, 542. When party may recover costs and attorney fees in, 543. Proceedings for new trial, 544. Error proceedings, 545, 546. Of school land, 547. In what court action may be had, 548. Rights of parties absent or under disability, 549. Procedure when there are conflicting claims to real estate to l>e con- demned, 550, 551, 552. TNDEX. 759 [Figures preceded by ' No." refer to Forms; otherwise to Sections.] Condemnation proceedings — Continued. Unfinished bed of railroad company condemned, how, 553, 554, 555. Procedure when land held by a corporation without agreement, 556. Summons, judgment and execution, 557. An injunction may be allowed, when, 55S. Condemnation proceedings — Forms for — Application or petition by city to assess damages, No. 388. The precipe to the clerk, No. 389. The order of court as to the manner of notice. No. 3!»U. The notice to be served by the sheriff, No. 391. The sheriff's return, No. 392. Answer in, No. 393. Reply, No. 394. Motion to be made party, No. 397. Waiver of notice entry of appearance, No. 396. Offer of plaintiff to confess judgment, No. 398. Decree and order impaneling jury, No. 399. Order to clerk and sheriff to draw jury, No. 400. List of names drawn for jurors, No. 401. The venire, No. 402. Sheriff's return of service, No. 403. Writ of view, No. 404. Sheriff's return of writ of view, No. 405. Verdict of jury, No. 406. Order confirming verdict, No. 407. Petition by railway to appropriate private property, No. 408. Precipe to clerk, No. 409. Order for summons and fixing time and place for hearing, No. 410. Summons and sheriff's return of, No. 411. Motion to dismiss, No. 412. Order overruling motion directing jury to be drawn and fixing time for jury to appear, No. 413. Order to draw jury, No. 414. Sheriff's return of his proceedings under, No. 415. Venire, No. 416. Sheriff's return of service, No. 417. Ordering view, No. 418. Writ of view, No. 419. Sheriff's return of writ. No. 420. Verdict of jury. No. 421. Motion to set aside verdict, No. 422. Entry confirming verdict. No. 423. Confirmations — Forms in — Of sale under vendi exponas. No. 12. Of sale by sheriff made under decree setting aside fraudulent convey- ance and marshaling liens. Nos. 33, 46. <7(i() INDEX. [Figures preceded by "No." refer to Forms; otherwise to Sections.] Confirmations — Forms in — Continued. Of sale in attachment, No. 68. Of administrator or executor's sale of real estate, Nos. 114. 113 and 138. Appraisement in administrator or executor's sale of real estate, Nos. 109, 120. Of guardians' sale of real estate, Nos. 177, 192. Of appraisement in guardian's sale of real estate, Nos. 173, 187. Of assignee's sale of real estate, No. 210. Of receiver's sale of real estate, No. 244. Of sale in partition, No. 271. Of sale of church property, No. 300. Of mortgage of church property, No. 305. Of sale of real estate in foreclosure of mortgage, No. 321. Of sale of real estate in foreclosure of mechanic's lien, No. 342. Of foreclosure of tax lien, No. 350. Of commissioner's report assigning dower, No. 374. Of verdict in condemnation proceeding, Nos. 407, 423. Corporation — Change of venue in suit against, 21. Service of summons upon, 32. Return of service against, 33. Meaning of term "Managing agent of," 34. See subject, "Service of Summons." Receiver may appoint for, 290. Condemnation proceedings by, 502, et seq. Costs — How assessed in condemnation proceedings. 516. To be taxed how, in partition, 333. Of writ of view in condemnation cases. 537. 538, 543. How recovered in condemnation cases, 543, 510, 559. 560. In action under occupying claimant's law. 599. Committee — Form for appointment of in proceedings to sell real estate in which insane person lias right of dower, No. 380. Constitutional — Disentailing act is, 191. Constitution — Of Ohio in eminent domain, 592. Of United States in eminent domain, 502. INDEX. 761 [Figures preceded by "No." refer to Forms; otherwise to Sections.] Courts — Supreme Court can appoint receiver, when, 200. Common pleas court may appoint receiver, when, 290. Circuit court may appoint receiver, when. 290. Probate court may appoint receiver, when, 200. What courts have power to sell guardian's real estate, 246. What courts may sell decedent's real estate, 2i'7. What courts may sell real estate in assignments, 270. What court to hear condemnation proceedings, 509. Creditor — Receiver by, 290. Curtesy — Provision of sale not to apply in proceedings to sell an entailed estate, 193. Owner of t'' pay tax on — Forfeiture. 407. Cuyahoga county — Delinquent tax in, 412. D Death — Procedure in case of death after dower proceedings begun. 4 70. Debts — See proceeding by administrator or executor to pav decedent's debts 206, rt seq. Decedent's land contract — Survivor may make deed. when. 005. Petition for, 005. Proper parties. 005. Petition must contain what. 606. The order of the court, recitals in deed, 607. Manner in which administrator may complete real contract. 000. In what court action to be brought. 608. Parties defendant, 608. The order of the court. 000. The deed and its effect, 000. Heirs may have like action, when, 010. 762 INDEX. [Figures preceded by "No." refer to Forms; otherwise to Sections.] Decedent's land contract — Forms in — Petition to complete real contract. No. 44S Answer of defendants. No. 440. Answer of widow, No. 450. Order of court to complete contract. No. 451. The deed, No. 452. Another petition, No. 453. Petition of surviving contractors to convey decedent's land, No. 454. Deeds — Equity may correct deed by court, when. 69. Parol evidence to correct, when, 61). Successor of sheriff or master to make deed, 121. Recitals in deed of sheriff or masters, 122. Execution and delivery of sheriff's or master's deed, 122. Effect of such deed as evidence, 124. Successor of sheriff to make deeds, when, 127. Recitals in, 127. Sheriff's deed under execution, Nos. 13, 22, 34. Sheriff's deed by levy under foreign execution. No. .7. Deed at delinquent tax sale, 423. Auditor's deed at delinquent tax sale, 424. Effect of such deed, 425. Deeds — Forms for — Property sold in action to set aside fraudulent conveyance, Nos. 34 and 47. For sale of real estate under attachment proceedings, No. 69. Administrator's deed for sale of real estate at public auction. No. 115. Administrator's deed for sale of real estate sold at private sale in probate court, No. 123. Administrator's deed for sale of real estate at public auction in probate court, No. 130. Guardian's deed in sale of real estate, No. 170. Deed of assignee in sale of real estate at private sale, No. 217. In sale of real estate by assignee by public sale. No. 222. By receiver to purchaser at receiver's sale, No. 245. By trustee in bankruptcy, No. 255. In partition proceedings, No. 272. Church deed in exchange of real estate. No. 301. Church in sale of real estate, No. 306. Sheriff's deed in foreclosure of real estate mortgage, No. 322. Sheriff's deed in foreclosure of mechanic's lien. No. 343. Sheriff's deed in foreclosure of tax lien. No. 357. Decree— See subject, "Judgment." Effect of when set aside or reversed, 70. Decree ordering sale never becomes dormant, 999. INDEX. 763 [Figures preceded by "No." refer to Forms; otherwise to Sections.] Decree — Forms for — Setting nside a deed, marshaling liens and ordering sale. No. 27. Ordering sale under foreign levy, No. 41. Decree in sale of entailed estates, Nos. 72, 86. Decree in common pleas court setting aside fraudulent deeds and order- ing administrator to sell real estate, No. 105. For sale or exchange of church property. Nos. 298, 304. Decree in partition, No. 2C5. Authorizing sale and exchange of church property. No. 208. Authorizing church to mortgage real estate, No. 304. Foreclosing real estate mortgage and order of sale. No. :«r>. Foreclosing tax lien and order of sale, No. 348. Decree assigning dower, No. 370. Decree for sale of real estate free of insane wife's right of dower, No. 387. Vacating alley or street. No. 427. Quieting title to real estate, No. 433. Denial, general — What may be proved under, in ejectment, 582. Deposit — Required in condemnation cases, when, 515. Ditches — Lien on for work, etc., 381. Real estate condemned for, 505. Divorce — Bars husband from dower, when, 497. Bars wife from dower, when, 496. Docket — Execution docket of sheriff, 94. Entries to be made therein, 94, 116. Entries therein, notice to whom, 94. See subject "Record" and "Complete Record." Clerk's duty as to, 86, 87, 88. Clerk's duty as to execution docket and the index thereof, 136. Domicile — Not the same as residence in attachment, 154. 764 INDEX. [Figures preceded l>y "No." refer to Forms: otherwise to Sections.] Power — Origin and history, 452. Classification by Glanville, 452 In what estates, 453. Reversion. 453. Remainder, 453. Estate of inheritance. 45."). Estate held in bond or article, 453. Favorite in law, 453. Law applies to husband as well as to wife, 453. Inchoate dower, nature of, 454, 454 note. Inchoate dower, assignability. 455. 455 note. Wife a party to action. 457, 457 note. When dower consummate, 45ii. Inchoate dower, released by order of court. 457. 457 note. Dower subject to every infirmity attaching to seizin, 458. . Dower attaches to proceeds of sale of real estate. 458. Marriage necessary to create, 459. Common law marriage, 459. Seizin necessary to create, 460, 460 note. Attaches to what property. 461. Does not attach to what property, 402. Jointure, with reference to dower, 463. Right of in partnership property, 464, 464 note. Widow's right of when there are conflicting claims, 465, 465 note. Widow's right of dower in partition proceedings, 44. When dower of insane person may l)e barred by conveyance. 4!»f>. Wife barred of dower when husband granted divorce, 496. Husband barred of dower when wife granted divorce for his aggression, 496. Assignee in administrator's sale to pay debts, 230. In partition, 324. Exceptions. 324. In oil leases. 324. Assignment by commissioners in partition, 325. Assignments by commissioners in partition by rents and profits, No. 295. Estate to pay tax — Forfeiture of estate. a> to, 407. Dower — Fornis in assignment of — See Xos. 3G."> to 374. inclusive. For sale of real estate free of dower of insane wife. Xos. 375 to 385, inclusive. Petition for assignment of dower, Xo. 365. Summons in, Xo. 366. Sheriff's return of summons, Xo. 367. Order appointing guardian ad litem, Xo. 36S. Answer of guardian ad litem, No. 369. Decree assigning dower, Xo. 370. Writ of dower issued to sheriff, Xo. 371. Sheriff's writ. Xo. 372. Commissioner's report. Xo. 373. Confirmation of report, Xo. 374. 76t> INDEX. [Figures preceded by "No." refer to Forms; otherwise to Sections.] Power — Forms in assignment of — Continued. Petition by husband for sale of his real estate free of insane wife's dower, No. 375. Summons in, No. 370. Sheriff's return of summons, No. 377. Motion for appointment of guardian ad litem, No. 378. Answer of guardian ad litem, No. 381. Order appointing guardian ad litem, No. 37!». Notice vf clerk to committee. No. 380. Motion for substitution of a member of committee, No. 382. Report of committee to investigate insanity of wife. No. 383. Affidavit of citizens as to necessity for sale, No. 384. Order appointing appraisers, No. 385. Oath of appraisers, No. 386. Appraiser's report, No. 386. Order of court permitting sale free of insane wife's dower, No. 387. E Ejectment — The law and procedure in the action to recover possession of real estate, 579 to 592. The nature of the action, 579. Discussion of the old action, 579. The fictitious action — The old English real action, 579. The action under the code, 579. The petition, and what it should contain, 589. Allegations of possession, 579. Description of the property, 579. Owner of a legal title as against a defendant in possession under a land contract, 580. Allegations of title, 580. Averments as to possession as to statute of limitations, 580-582. Petition by tenant in common against co-tenant, 581. Denial of plaintiff's right, 581. Answer to petition in ejectment, 582. What may be proved under a general denial, 582. Recovery when right terminates during the action, 583 Who may maintain the action, 584. List of parties who may maintain the action, 584. Plaintiff's title in. 585. Title sufficient against intruder, 585. Proof of title required in the action. 586. Prima facie case in, 586. When title back to common source must be shown, 586. Neither party may contest prior deed. when. 587. Adverse posvsession and statute of limitations, 588. INDEX. 767 I Figures preceded by "No.*' refer to Forms; otherwise to Sections.] Ejectment — Continued. Nature of adverse pos^ssion, 58S. The relief obtained in the action, 589. Causes of action joinable in, 590. Cancellation of conveyances in, 590. What causes of action may be united in ejectment, 590. The action triable to a jury, when, 591. No right of appeal in, 591. If principal relief is possession, and incidental relief injunction, to prevent multiplicity of suits, and to establish boundary line, the action for jury, 591. Vendee may recoup amount of liens, when, 592. Bond of, in, 592. Occupying claimant's law — Parties may have benefit of, when, 593. Nature of title required to give in, 594. Statute comes to what persons, 594. Owner of life estate may not have, when, 594. What purchasers are protected by, 594. Title under a sale for taxes sufficient to protect, 595. Entry of claim for improvements, 596. Action to be tried by regular jury, 597. View of premises by jury, 597. Talesmen summoned, how, 598. Setting aside verdict in, 599. Costs in, 599. Judgment and execution on verdict for plaintiff, 600. What may be included in the judgment, 600. Proceedings if verdict is for occupying claimant, 601. Writ of possession will issue, when, 602. Procedure when successful claimant elects to receive value of land, 603. Occupant may have action for title, when, 604. Ejectment — Forms for — Petition in, No. 436. Answer of a defendant, No. 437. Verdict of jury, No. 438. Judgment on verdict and application by occupying claimant for valua- tion of improvements, No. 439. Application to the clerk for a jury, No. 440. The writ for a jury from clerk to sheriff, No. 441. The certificate of juror's oath, No. 442. Assessment by jury for improvements, No. 443. The oath of the jury, No. 445. Order and judgment — Plaintiff electing to pay for improvements and keep lands, No. 446. Another form for petition in ejectment, No. 447. 768 I NDEX - [Figures preceded by "No." refer to Forms; otherwise to Sections.) Election- — Of heir in partition to take at appraisement, 318. To take under will <.. dower, how made, 498. Court's duty as to, 498. Of an insane person, how made, 499. Duty of person appointed bj; court to make for insane person, 499. Effect of the election or non-election, 500. Does not bar dower when will gives both, 501. When action may be brought for advice of court as to, 501. Electric lighting plant — Real estate condemned for, 505. Eminent domain — See subject, "Condemnation Proceedings." Entry of appearance — In attachment, how effected, 145. Entailed estates — Procedure in, forms, Nos. 70 to 03. General discussion of, 100. Limitation of entails in Ohio, 100. Act constitutional, 101. Some States allow sale by court of equity, 101. Venue of the action, 192. Who may obtain sale of, 193. Probate court can not make such sale, 193. Instances authorizing sale, 194. What the petition for sale should allege, 195. Parties to the action. 105. Incidental procedure in the action, 196. Forms, Nos. 39, 40, 41, 42, 43, 44, 310, 311, 312, 313, 142, 143, 144, 145, 46, 47. Guardians
    , 546. In partition. 340. In attachment, 179. Executor or administrator may prosecute in attachment, No. 181. Execution — In condemnation cases, 557. Sheriff's return of, No. 20. Executor — "May not bid at his sale of real estate, 111. Duty to pay tax, 404. Executions — Statutory definition, 90. May be executed to sheriffs of different counties at same time. 90. See Form No. 4 for form of. Delivery of to sheriff, 90. May be sent to sheriff by mail, 90. Clerk may deliver to plaintiff or his attorney for sheriff, 90. Probate court may not issue on judgment of common pleas court, 90. Kinds of. 91. Sheriff's duty on, as to personal property. 91. Sheriff's duty on, as to real estate, 91. As to common law names of, 91. The vendi exponas, 91. Against property, 91. Against person, 91. For delivery of possession of real property, 91. ^70 INDEX. [figures preceded by "No." refer to Forms; otherwise to Sections.] Executions — Continued. What it must contain, 91. In attachment proceedings, 91. Levy and sale under, 92. What property may be sold under, 92. Vested interests, 92. Permanent leasehold estates, subject to, 92. Goods and chattels subject to, 92. Trust estates not subject to, 92. Homestead not subject to, 92. Coin may be taken, when, 92. Ownership true test for officer, 92. Levy and sale of property incumbered by prior liens, 92. Procedure as to in case prior liens, 92. Levy of property under bailment, 92. Levy of property under conditional sale, 92. Levy of property fraudulently conveyed, 92. Levy of property attached, 92. Levy of partnership property, 92. Against a partnership on judgment in firm name operates, how, 93. Lien of foreign, 94. Docket to be kept by sheriff, 94. Notice of, 94. Foreign execution levy dates from, when, 94. On justice and mayor's transcripts of judgments, 98. Its command, 100. How sales made thereunder, 100. Sales of real estate, one-third cash, one-third one year, and one-third two years — Deferred payments secured by mortgage, 100. Sales cash, unless ordered otherwise, 100. Returnable sixty days, 100. When not prior lien, 101. When on an equality with each other, 101. First to be levied on goods and chattels, 102. Writ to be returned "no goods" before lands to be taken under, 102. Debtor may waive levy on chattels, 102. Appraisement of real estate under, 103. Appraisement to be made, how, 103. Form of, see No. 8. Sale under must bring two-thirds of appraised value, 100, 110. Court may fix amount at which real estate may be sold, when, 110. Who may not bid at sale under, 111. Purchaser under may raise unsatisfactory bid, when, 112. Advertisement for sale under, 113. Advertisement for sale, how made. 113. Advertisement for sale, where made, 113. Requirements of advertisement for sale real estate, 113. INDEX. 771 [Figures pre eded by "Nu." refer to Forms; otherwise t" Sections.] Executions — Cot tinned. Requirements of advertisement for salt- street number, 113. Requirements of advertisement as to roads and townships, where land is situate. 113. Requirements of advertisement as to newspaper, I I \. Requirements of advertisements a^ to number insertions, 1 14. Form of publication for sale real estate, see No. 136. Form for proof publication for sale real estate, see No. 137. Effect of mistake of publishing sale under, 114. Publication of sale under, in foreign language. 115. Cost of publication of sale under, in foreign language. 115. Purchaser under failing to pay punished for contempt, 117. Sale under to be confirmed, how. 118. Duties of clerk as to, 118. Deeds under to be delivered, when, 118. Officer to retain purchase money under until sale is confirmed, 118. When objection to sale under for irregularity should he made, 118. Judgment debtor may redeem from sales under, when, 11!*. Requirements to redeem under, 119. Printer's fee for publication of sale under, 124. Where sales of real estate to take place under, 125. Alias executions may issue, when, 125. Procedure under when creditors direct separate levies on separate parcels of land, 126. Rights of owner when property not subject to execution sold, 128. Relief of sheriff who levies on wrong property in good faith, 129. Remedy where co-surety pays for property wrongfully sold under, 180. New appraisement for sale under, may be made. when. 132. Must be returned, when, 134. Effect of return after time limit, 134. Or. judgment against principal and surety, how levied, 135. Appraisement fee under execution, 136. Penalty for refusal to act as appraiser under. 136. Who may swear appraisers under, 136. May be issued to another county and returned by mail, when, 137. Clerk to enter in docket and index same, 138. Proceeding under when order of sale not mi trial docket. 130. Amercement of sheriff' for failure to perform duties under, 140. Executions — Receiver may be appointed after return of, 200. Foreclosure — Of mortgage lien. 363. Of mechanic's lien, 375. Of tax lien, 807. 772 index. [Figures preceded )>y "No." refer to Forms; otherwise to Sections.] Forms — Oale under execution. — Forms — Sale under execution. For petition. No. 1. For answer, No. 2. For the judgment, No-. 3. For the execution, No. 4. For the sheriff's proceeding under writ, No. 5. For the precipe for order of sale, No. ti. For the order of sale from the clerk to sheriff, No. 7. The appraisement under, No. 8. The proof of publication and the notice of sale. No. 9. The notice of sheriff's sale, No. 10. The return of the sheriff, No. 11. The confirmation of sale by court, No. 12. The sheriff's deed under sale, No. 13. Fraudulent conveyance- — Action by administrator to set aside fraudulent conveyance of real estate and to sell real estate to pay decedent's debts. 213, 214. Forms for petition in common pleas by administrator to set aside fraudulent conveyance and to sell real estate to pay debts. No. 94. Fraudulent conveyance of real estate — Administrator may sell, when, 213. When land fraudulently conveyed in hands of an innocent purchaser, the administrator may sue fraudulent grantee in damages, when, 214. Action may not be brought by administrator for benefit of heir, 214. Furnace — Lien for altering, building, repairing, etc., 377. G Gas well — Lien allowed for labor and material for, 377. Gamblers — Judgment against, 04. Guardian — Power to act in partition proceedings, 43. 326. Power of as to minor, idiot, imbecile or insane person, in partition, 43. May elect to fake estate, 43. May not bid at their sale- i f real estate, 111. May consent for ward in sale of entailed estate. 199. index. 773 [Figures preceded by "No." refer to Forms; otherwise to Sections.] Guardian — ( 'on t Inued. Lien for payment of tax, 400. Duty of as to payment of tax, 402. Eminent domain, 522, 52:?. Power to sell real estate, 245. (are required in sale of real estate. 245. Statute to be followed, 245. No power to sell by implication, 245. What court may sell, 240. Where petition must be filed, 246. Nature of action to sell, 247. Incidental procedure, 248. Sale of real estate, 249. Selection of guardian, 250. Sale made without selection of, 250. Guardian for widow may answer in dower, 489. Procedure for sale of joint interest of wards, 251. Petition by guardian for sale of real estate, and what it must contain, 252. As to description of real estate, 252, 252 note. Notice to parties, 253. Hearing on petition, 254. Appraisement, 254. Survey of town lots, 254. Guardians ad litem for infants, 255. Oath of appraisers — Sale of real estate, 250. Bond, additional, 257.- Who may be surety on, 258. Bonding company may be paid as costs, 258. Order of sale, 259. Terms of sale, 259. Notice of sale, 259. Private sale, 259. Amount for which sale may be made, 259. Report of sale, 260. Confirmation of sale, 200. Deed to purchaser, 200. To pay tax, when. 400. Gnariiian — Forms for — Procedure in sale of real estate by guardian, Nios. 163 to 199. Petition to sell insane ward's real estate. No. 163. Entry fixing time for hearing, No. 164. Notice to defendants, No. 105. Return of service of notice, No. 100. Order for notice by guardian, No. 167. Affidavit in proof of notice, No. 168. 774 INDEX. [Figures preceded by "No." refer to Forms; otherwise to Sections.! Guardian — Forms for — ■Continued. Waiver of summons, No. 108. Answer of disclaimer. No. 170. Order appointing appraisers, No. 171. Order approving appraisement. No. 173. Order for bond, No. 173. Order approving bond. No. 174. Order of sale, No. 174, 175. Proof of publication of notice and form of notice of sale, No. 175. Guardian's sale, No. 17c vacated, 42. Revivor of judgment as to, 7.5. Index — Direct and reverse as to judgments. 88. Duty of clerk as to. 88. Alphabetical arrangement of. ss. Xante of judgment debtor, 88. Name of judgment creditor, 88. Amount of judgment, 88. J Judgment — Offer to confess in condemnation eases, 516. And execution on verdict for plaintiff under occupying claimant's law. 600. Judgments, orders and decrees- Defined, 58. Order defined, 58. Logical definition, 58. Definition :'ncludes final decrees. 58. Common law definition, 58. Effect of oral opinion at common law, 58. To be recorded, 58. Time and manner of recording, 58. Points of difference between judgments and decrees, 58. Final or interlocutory, defined, 58. To be confined to the issues, 59. General discussion, 59. Care as to in titles, 59. Issues must state a cause of action, 59. Not so perfect as to withstand a demurrer, 59. Without jurisdiction of parties, void, 60. Without jurisdiction of subject matter, 60. Without day in court, void. 60. r>ee subjects, "Jurisdiction." "Service of Summons." Defendant must be served with summons, 60. Allegation of petition as to interest of defendant, 60. Care as to service on infants. 60. See subjects, "Guardian ad litem," "Infancy." 778 INDEX. [Figures preceded by "No." refer to Forms; otherwise to Sections.] Judgments, orders and decrees — Continued. No presumption to aid records as to rights of infants, 00. See Forms Ncs. 1!)5 and 196 as to defense of an insane person not under guardianship. Jurisdiction of court as to subject matter, 60. See subject, "Waiver of Summons and Entrance of Appearance." Collateral attack of, 61, 04, 106. Direct attack defined, 61. Collateral attack defined. 61. What is not a collateral attack, 61. Final as between parties. 02. Res judicata, 62. Principle of, 62. Finding of facts giving jurisdiction not subject to collateral attack, 63. Principle a rule of property, 63. Need not look behind clerks', sheriffs', courts' or attorneys' acts to discover error, 63. Import absolute verity, 03. Voidable and void, 64. Title under void and voidable. 04. Equity may set aside, when, 64. Caveat emptor as to judicial sale defined, 65. Vacated during term, 68. Vacated for irregularity, 68. Vacated for misconduct, 68. Vacated for accident or surprise, 68. Vacated for excessive damages, 68. Vacated when not sustained by evidence and contrary to law, and for newly discovered evidence, 68. Vacated for error of law at time of trial, 68. Vacated after term by petition, 69. Grounds for vacation of after term, 69. Voidable binding until set aside, 69. May be set aside under old equity remedy, 69. Equity may correct, when, 69. Reservation of rights of infants in, 72. Infants may show cause against, 72. Bona fide purchaser under, not affected by rights of infant, when, 73. Revivor of dormant judgment. 74, 75. Procedure in revivor of dormant judgment. 74. Limitation as to revivor of, 75. New parties as to revivor of, 76. Revivor of in circuit court remanded to common pleas for execution, 76 Revivor as to partnership. 70. Parties to, 77. Against defendants at different times, 77. index. 779 [Figures preceded by "No." refer to Forms; otherwise to Sections.] Judgments, orders and decrees — Continued. As to one defendant as continuance as t<> others, 77. to operate as a conveyance, 77. Decree of conveyance of land outside of jurisdiction of court, 78. Decree of conveyance enforced In attachment, 78 Against married women, 7!'. To be entered in conformity to verdict, 80, 81. Motion for trial as to verdict, 80. To be entered against verdict, 82. To create lien must be entered on journal, 83. Power of courts to correct, during term, 83. To be indexed, when, 88. In what book to be entered, 88. To be alphabetically arranged, 88. Attaches to land, 94. Extent of, 94. Attaches, when, 94. By confession attaches, when, 94. Lien of statutory, 94. Equity can not cure defective lien, 94. No lien for decree unless money only, 94. For alimony, 94. Against selling intoxicating liquors and gamblers, 94. Lien in circuit court, U. S., a lien in State courts, 94. Lien against railroad in Federal courts a lien on right of way, etc., 94. Lien coextensive with jurisdiction of court, 94. Lien in superior court, Cincinnati, coextensive with Hamilton Count v 94. Land out of county bound from seizure, 94. * Of supreme court binds lands, when, 95. Lien if not divested by appeal or error, 95. From justice make lien, how. 96, 97. From mayors' courts make lien, how, 96, 97. Becomes dormant, when, 99. How kept alive, 99. Lien of restricted to two-thirds of value of real estate, 109. Preference of lien under, lost, when, 131. How entered against principal and surety, 135. Receiver appointed to carry into effect, 290. Jointure — Character, 463. History of, 463. Essential elements, 463. See subject. "Dower." Parol agreement as to. enforced in equity, 4<">:t. 780 INDEX. [Figures preceded Ly "No." refer to Forms; otherwise to Sections.] Joint stock company — Served by summons, how, 35. Service on, rule in Ohio, 35. See subject, "Service of Summons." Jurisdiction — What is, 18. When complete, 18. Litigants subject to, when, 18. As to non-residents, 18. Foreign corporations subject to, 18. Subject matter, 59. Parties, 59. Parties before the court, 59. Judicial sale— Caveat emptor applies to, 65. Bidder to search records before sale, 65. Purchaser at acquires interest of judgment debtor only, 65. Bone fide purchaser at, 65. Defective title at, 65. Bidder subject to equity, when, 65. Made under void judgment, unaffected by sale, 65. Purchasers at, protected by recording statute, 67. Effect of when set aside or reversed, 70. Purchaser protected when judgment or decree set aside, 70. Statute to protect bidders, under, 70. Protection of statute does not apply to a stranger to the action, 70. Remedy of purchaser at invalid sale, 71. Purchaser under subrogated, 71. Bona fide purchasers at, protected, 71. Jury — Eminent domain. 511. Ejectment triable by jury, 591. Forms for in condemnation proceedings, Nos. 399, 400, 401, 402, 403, 406. May be had in the action to quiet title. 577. Form of verdict of in foreclosure of mechanic's lien. No. 333. Form for verdict of in trial of issues in attachment. No. 61. Claim for improvements under occupying claimant's law. 597. Talesmen in. 597. View <»f in under occupying claimant's law, 507. Setting aside verdict of in occupying claimant's law, 599. Challenge of. 599. Will contest tried by jury, till. Jury can not pass on part of will only, 611. INDEX. 781 [Figures preceded by "No." refer t<> Forms; otherwise to Sections.] Justice of peace — ^\Iay appoint to fill vacancy in appraisers' gale to pay debts, 'I'M. L Land contract — See subject, "Completion of Decedent's Land Contract." Loss — Receiver appointed to prevent loss of, 290. Levy — See subject, "Execution, Sales." What property subject to, 92. What property not subject to, 92. On property encumbered by prior liens, 92. Lien may be levied on, 92. Ownership true test for, 92. Homestead not subject to, 92. Goods and chattels subject to, 92. Trust estate not subject to, 92. See also "Executions." Procedure as to prior liens, 92. Of property under bailment, 92. Of property under conditional sale, 92. Of property fraudulently conveyed, 92. Of property attached, 92. Of partnership property, 93. Lis pendens — When third persons are charged with notice of suit, 56. As to suits in other counties, 57. Record of judgment in other county, 57. As to mortgage of real property — Not part of an entire tract in more than one county, 11. Liens — Petition to marshal, 92. Procedure as to, 92. Transferred to funds, when, 92. Order of sale free of, 92. Judgment of attaches to what lands, 94. Extent cf judgment lien, 94. Attaches to judgment, when. 94. Judgment by confession, lien of, 94. 782 INDEX. [Figures preceded by "No.- refer to Forms: otherwise to Sections.] Liens — Co id in ued. Judgment lien statutory, 94. Lquity will not curt' defect in judgment lien, !>4. No lien for decree, unless for money only, 94. For alimony judgment, 94. For judgment against sellers of intoxicating liquors and gamblers, 94. For judgment in United States courts, lien in S+atc courts, \n For judgment against railway in Federal cunts, lien on road\ ay and right of way, 94. Of judgment coextensive with court, 94. Of judgment of superior court of Cincinnati coextensive \\i'> Ham- ilton county, 94. Of judgment on lands out of county bound from seizure, 94. Foreign execution, 94. Of foreign execution dates from when, 94. Of judgment of supreme court, 95. Of judgment not divested by appeal on error. Judgment of justice made lien, how, 95. Judgment restricted to two-thirds of value of real estate, 109. Of judgment lost, when, 131. Foreclosure of mortgage lien, 3G3. Foreclosure of tax lien, 375. Foreclosure of mechanic's lien, 397. See subject, "Mechanic's Lien." Se- subjects, "Mortgage," Execution," "Levy," "Attachment." Libraries — Real estate condemned for, 505. * Lease — Sale of for tax, 450. Liquors — Judgment against sellers of, 94. M Market places — Condemnation proceedings for, 505. Magna Charta — Provision for dower in, 452. Marriage — Necessary to create dower, 459. License to, 459. Common law, 459. i.\ EX. "^3 [Figures preceded •>> "No." refer to Forms; otherwise to Sections.] ^Manufactory — Lien allowed for erecting, altering, etc., 377. Marshaling liens— Petition to marshal liens and to sell lands fraudulently conveyed, No. 23. Mechanic's lien — Origin and nature, 375. Waiver of right to assert. 370. Allowed for what, 377. Buildings on contiguous lots, 378. Contractor to defend action to enforce lien, 379. Owner or proprietor includes what, 380. Lien acquired, how, 380. Notice required, 380. Filing of, 380. Affidavit for. 380. Itemized statement, 380. Recorded how, 380. Limitation as to, 380. Requirement for lien on roads, streets, sewers, ditches, 381. Liens pro rata, when, 381. Owner may require suit begun on, when, 382. Subcontractor's lien. 384. Acquired, how. 384. Executor's rights as to, 383. Administrator's rights as to, 383. Married women's rights as to, 383. Owner's duty to retain payments, when, 385. Notice as to. 385. Notice to fellow laborers, 386. Statement filed with recorder, 386. Payments pro rata, when, 387. Copy of statement to be furnished head contractor, 388. His duty. 388. Priority of liens, 388. Subcontractor's remedy, 380. Subcontractor's lien, 3!)0. How obtained, 390. Priority over head contractor, 391. Priority as to attachments, 391. Priority as to assignments, 391. Fraud and collusion in payment of principal contractor. 302. Sheriff may serve notices, affidavits, etc., 393. Remedy when owner suspends work without their consent, 394. 784 INDEX. [Figures preceded by "No." refer to Forms; otherwise to Sections.] Mechanic's lien — Con I inued. Laborers to have lien on other property, when, 395. Precedence of lien. 395. Waiver of, 3515 Priority, 395. Forms — Mechanic's lien— For the lien, No. 327. For petition to foreclose lien, No. 328. For precipe and summons, Nos. 329, 330. For answer and cross-petition, No. 331. For reply. No. 332. For verdict of jury, No. 333. For motion to set aside verdict, No. 334. For order of court overruling motion and ordering sale of real es- tate, No. 335. For order of sale from clerk to sheriff, No. 336. For sheriff's procedure, No. 337. For appraisement. No. 337. For oroof of publication of legal notice. No. 330. For sheriff's return. No. 341. For confirmation of sale, No. 342. For order for deed and distribution, 342. For sheriff's deed, No. 343. Mill- Lien allowed for erecting, altering, etc.. 377. Mortgage— Eeceiver may lie appointed in foreclosure of, 200. Can not be foreclosed after assignee is appointed, 276. Sale of mortgaged property in assignments. 282. Wife joins in mortgaged property in assignment procedure, 283. Release of liens in assignments. 285. For deferred payments in, 287. Execution and acknowledgment, 363. Who may take acknowledgment. 363. The lien of, 364. Recording, 364. Recorder, duties of, 364. Assignment of note, effect of, 365. Assignment of several notes, 365. Mortgage an incident of debt, 365 Chose in action, 365. Remedies of mortgagee, 366. Foreclosure, 366. INDEX. 785 [Figures preceded by "No." refer to Forms; otherwise to Sections.] Mortgage — ( 'on I in ued. Ejectment, •>•><>. Personal judgment, 300, 368. Limitation in action on, 366. Why care should he used in form of remedy, 360. Venue of the action, 367. Legal rights and duties of one who assumes a mortgage, 56!t. Foreclosure in default in payment of one of several notes. :\Tt). Default in payment of interest, 370. Jurisdiction in foreclosure, 371. Assignee lias right to foreclose, 371. Executor or administrator, when, 371. Receiver in, 372. Appraisement of property in foreclosure, 373. Property sold on time, 373. Terms of sale, 373. Procedure in foreclosure of, 374. Mortgage — Fornis in foreclosure of— Petition in. No. 307. Summons and return of, No. 308. Motion for trustee for insane defendant, No. 310. Affidavit in proof of insanity, No. 311. Order appointing trustee to defend for insane person. No. 312. Answer of trustee. No. 313. Decree in. No. 314. Order of sale to sheriff, No. 315. Appointment of appraisers and their oath, No. 310. Report of appraisers, No. 317. Proof of publication. No. 318. Legal notice of sale, No. 319. Sheriff's return of sale, No. 320. Confirmation of sale, order for deed and distribution. No. 321. Sheriff's deed. No. 322. Petition where mortgage has been assumed, NO. 323. Another form for petition. No. 324. Form for petition asking reformation of mortgage, foreclosure and mar- shaling liens, No. 352. Petition to declare deed, mortgage and to foreclose same. No. 326. Motions — For new trial. SO. , See subject. "Forms." To set aside service of summons, 31. Not to constitute entrance of appearance, when. 31. To set aside appraisement, 105. 786 INDEX. [Figures preceded by "No." to Forms; otherwise to Sections.] Motions — ( 'o ii i in tied. Motion for relief officers levying on wrong property, 129. To amerce sheriff for failure to perform duties, 14(1. To set aside judgment and order of sale in attachment from. No. 57 To set aside verdict in attachment ease and for new trial, No. 62. To confirm sale and apportion costs in action on judgment to set aside deed and marshaling liens. No. 32. N New trial — Motion as to, 80. Verdict set aside, 80. See title. "Judgment." Proceedings for in condemnation cases, 544. Allowed, when, (38. Allowed at same time, 08. Allowed after term, 69. Notice — Manner of in condemnation proceedings, 507. To idiot, minor, imbecile or insane person in condemnation proceed- ings, 523. Notice — Forms of — Sheriff's sale under vendi exponas. No. 10. Sheriff's sale of real estate to satisfy judgment, No. 30. For legal notice of sheriff's sales, see Nos. 44, 285, 319, 340, 352. o Orders — See subject, "Judgments." Attachment order of in, No. 31. Order approving service by publication. No. 53. Of sale in attachment. No. 56. Older sustaining motion for new trial in attachment, No. 58. Order confirming sale in attachment, No. C>H. Order of distribution in. No. 6S. Of sale in proceedings to sell entailed estates, Nos. 12. 86. Appointing trustee in proceedings to sale entailed estates, Nos. 77, 86. See subjects. "Sheriffs." "Confirmation." "Distribution." "Returns." Oath— Of jury in condemnation proceedings. 535. INDEX. 787 [Figures preceded by "No." refer to Forms; otherwise to Sections.] Oil well— Oil derrick- Lien allowed for labor and material for, 377. P Parks — Condemnation proceedings for, 505. Parties — In action for sale of an entailed estate, 195. In the action by an administrator to sell real estate to pay debts, 217. Partition — Nature of proceeding, 295. Equitable and statutory, both. 295, 295 note. Power of chancellor in equitable partition, 295, 295 note. Amicable partition, 2'i'i. Effect of amicable partition. 291J note. May by parol, when, 297, 297 note. Written agreement for partition, 298. Tenant can not effect partition by deed, 299. Interest conveyed by, 299 not< . Joint tenancy, 300, 300 note. Disputed title in, 301. May not substitute for ejectment. 301. Will may be construed in, 302. Course of descent may be construed in, 302. Creates no new titles, 303. Ancestral quality broken, when, in partition, 303. Rule of construction as to title in, 303. Proceeding operates on possession, 303. Construction of mutual releases, 304. Applicant must be in possession. 305. Reversioners nor remainders can have, 305. 307. 307 note. Not an alternative remedy with ejectment. 305. Nature of possession required, 300, 306 note. Rule as to life tenant, 300. Life tenant and remainderman joining in demand, 306. Allegations and proof of title of demandant, 308. Who may have, 309. Who may not have, 310. Where action to be brought, 310. Who may file for, 311. The order for. 312. Appraisers in. 312. Appraisers' fees, 312. 788 INDEX. [Figures preceded by "No." refer to Forms; otherwise to Sections.] Partition — Continued. Auctioneer in sale, 312. Writ of, 313, 313 note. Commissioners in, 314, 314 note. Several tracts, 315, 315 note. Lands not capable of division to be appraised, 316. Election by heir to take at appraisement, 316. Title to heir by descent and by purchase, 316. Terms of payment in sale of, 316. Execution of conveyances in, 317. Deferred payments, 317. Sale in case no election of heir to take at appraisement, 318. Conduct of sale, 319. Term* of sale, 319. Confirmation of sale, 320, 320 note. Distribution of proceeds, 321. Sheriff's liability, 321. Notes and securities in belong to heirs, 321, 321 note. Proceedings when property offered and not sold, 322. Sale made without valuation, 322. Successor to sheriff to execute deed, 323. Dower in, 323. Appraisement subject to dower, 323. Dower in case of death of widow during proceeding, 323. Not estopped to claim dower, when, 324, 324 note. Commissioners may assign dower, 325. Guardian's power to sell for ward, 326, 326 note. Eoreign guardian, power of } 327. Crops in partition, 329. Absence of heir seven years, presumption as to, 330. Allowance as to improvements, 331. Religious corporations may, 331, 332. Costs and expenses taxed, how, 333. Counsel fees taxed in, 333. Rights of administrator in, 334. Court to order proceeds to be paid to administrator, when, 335. May not be had until one year from decedent's death, 336. May have at once, when. 336. Advancements in, 337, 338, 339, 340, 341. Hotch-pot in, 337. Judgments in not subject to collateral attack, 342. Lien against cotenant before suit attaches to share aparted to him, 343. Rights of parties paying, his share of tax on lands, 344. Purchaser of interest at tax sale may have, 345. Appeal and error in, 340. index. ?89 [Figures preceded by "No." refer to Forms: otherwise»to Sections.] Forms — Partition — Partition in and to quiet title, Xo. 256. Precipe, No.' 257. Summons in. No. 258. Sheriff's return, No. 259. Answer for guardian of infant in, No. 2(i0. Waiver of summons in, No. 261. Answer of widow as to her dower. No. 262. Motion for guardian ad litem, No. 20,3. Order appointing guardian ad litem, No. 204. Answer of guardian ad litem, No. 265. Decree for partition, No. 200. Writ from clerk to sheriff, No. 207. Commissioner's report, No. 268. Sheriff's return in, No. 209. Election to take at appraisal, No. 270. Confirmation of sale, order for deed and distribution, No. 271. Sheriff's deed in, No. 272. Writ where property can not be divided, No. 27.'}. Sheriff's return under, No. 274. Commissioner's report under order of sale in, legal notice. No. 275. Publication, sheriff's return, No. 276. Petition for and for accounting for rents and profits, No. 278. Petition for equitable partition and to adjust advancement, No. 270. Petition for by guardian, No. 280. Answer in, No. 281. Cress-petition, setting up mortgage, No. 282. Order for publication for unknown heirs, No. 283. Legal notice for unknown heirs, No. 284. Legal notice for sale of real estate by sheriff, No. 285. Certificate to probate court, No. 286. Entry allowing application, No. 287. Certificate under previous order, No. 288. Motion of administrator, asking for fund to pay debts, No. 289. Entry sustaining such motion, No. 290. Proof of publication in, No. 291. Legal notice and service, by publication in, No. 292. Affidavit for service by publication, No. 293. Report of commissioners assigning dower by metes and bounds, No. 294. Assignment of dower in rents and profits, No. 295. Parol evidence- See subject, "Deed." To show mistake in appraisement, 106. 790 INDEX. [Figures preceded by "No." refer to Forms; otherwise to Sections.] Partnership — Revivor of judgments against, 76. Where action of replevin against may be brought, 29. Service of in attachment. 29. 8ee subject, "Service of Summons." Levy on firm property, 92. Court of equity invoked as to levy on property of, 93. Right of surviving as to levy on property of, 93. Right of levying creditor as to levy on property <.f, U'.i. Priority of firm creditor over creditors of the individual members of firm, 93. When creditor may have receiver of partner's interest, 290. Dower in partnership realty, 464. Partnership realty regarded as personalty, when, 464, 464 note. Petition — Should contain what, 2. Ordinary and concise language, 2. Relief asked, 2. Caption in, 3. Parties named in, 3. Allegations of an action to sell an entailed estate, 195. Allegations of in the action by an administrator to pay debts, 219. Allegations of in sale of ward's real estate by guardian, 252. As to filing of by assignee, 275. Under which receiver is appointed for a corporation, 223. In partition, who may file, 311. By religious society, for sale or incumbrance of real estate, 348. For dower, 476. To discharge dower of an insane person, 491. In condemnation proceedings, 524. For vacation of street or alley, 562. Allegations of in the action to quiet title, 572. Petition — Forms for — Petition in cognovit, No. 1. Petition on note, No. 14. Petition to set aside fraudulent deed, No. 23. Petition for sale of real estate upon levy made under foreign execu- tion, No. 35. Petition on promissory note under which attachment is issued. No. 48. Petition for sale of entailed estate, Nos. 70, 84. Petition by an administrator to sell land of decedent conveyed by him in fraud of creditors, common pleas court, No. 94. Petition by administrator to sell decedent's lands to pay debts, No. 116. INDEX. 791 [Figures preceded by "No." refer to Forms; otherwise t'> Sections.] Petition — Forms for — Continued. Petition by guardian to sell real estate of an insane ward, No. 163. Petition by guardian to sell ward's real estate, Nos. 180 and 193. Petition for sale of real estate by an assignee for the benefit of cred- itors, No. 202. Petition in the action in which a receiver is a; p anted, No. 223. Petition in partition and to quiet title. No. i.">0. Petition for partition by guardian, No. 280. Petition for sale and exchange of church property, No. 200. Petition asking for sale and'encumbrance of church pn perty, No. ;><>-2. Petition for foreclosure of real estate mortgage, No. 307. Petiton for same where grantee in deed assumes mortgage, Nos. 323 and 324. Petition for reformation of mortgage, foreclosure and marshaling of liens. No. 325. Petition to declare a deed a mortgage, and to foreclose same. No. 326. Petition for foreclosure of a mechanic's lien, No. 32S. Petition for foreclosure of tax lien, No. 344. Petition by treasurer to foreclose tax and assessment lien, No. 360. Petition for assignment of dower, No. 305. Petition by husband for sale of real estate, free of dower of insane wife, No. 375. Petition by a municipal corporation to condemn real estate for public purposes. No. 388. Petition of a railway company for the appropriation of private prop- erty, No. 408. Petition to vacate street or alley. No. 424. Petition in action to quiet title, Nos. 428, 434, 435. Petition in ejectment, Nos. 436, 447. Petition to complete decedent's land contract. Nos. 44S. 453, 454. For foreclosure of mortgage, No. 307. For foreclosure of mortgage previously assumed, Nos. 324, 325. To declare deed a mortgage and to foreclose same, No. 326. To reform mortgage and to foreclose the same. No. 325. For foreclosure of mechanic's lien. No. 327. For foreclosure of tax lien. No. 344. In condemnation proceedings. No. 525. To satisfy judgment, Form No. 14. To set aside fraudulent deed, Form No. 23. To marshal liens. Form No. 24. To sell real estate upon levy made under a foreign execution. Form No. 35. In attachment case, Form No. 48. Sell entailed estates, Nos. 70. 84. 93. By guardian for sale of an insane ward's real estate. No. 163. For petition by guardian to sell ward's real estate. No. ISO. For another petition by guardian to sell ward's real estate, 188. 193. 792 INDEX. [Figures preceded by "No." refer to Forms; otherwise to Sections.] Petition — Forms for — Continued. Petition of an administrator to sell decedent's real estate, No. 94. Another form for such petition. No. 116. Petition for sale or exchange or encumbrance of church property, Nos. 296, 302. i Playgrounds — Condemnation proceedings for, 505. Power plants — Real estate condemned for, 505. Pleading — Forms prescribed by statute, 1. Petition, what to contain, 2. Petition, requirement as to caption, 3. Title not permitted to be changed, except when defendant prosecutes error, 3. Precipe — Requirement as to, 6. Must be filed with clerk for all provisional remedies and processes of every kind, 6. For an execution, 89. Form of for execution, 89. See subject, "Forms." Possession — See subject, "Occupying Claimant." Necessary in the action to quiet title, 571. S»v subject, "Ejectment," 579. Adverse possession in ejectment, 580. 588. Nature of to give title by adverse possession, 588. Probate court — Exclusive jurisdiction in eminent domain, 521. Jurisdiction probating will, 611. Probate of will, not reviewable on error, 611. E.r parte probating will, 611. Will probate can not be set aside except by tin- action to contest will, till. Prisons — Condemnation proceedings for workhouses, bouses of refuge and farm schools, 505. index. 793 [Figures preceded by "No." refer to Forms; otherwise to Sections.] Purchasers — What kind are protected by. occupying -claimant's law, 594. See subject, "Judicial Sale," "Subrogation." Making unsatisfactory bid, 112. Failure to pay, punished for contempt, 117. Deed to be delivered to, when, 118. Publication of notice — Forms for — In attachment, No. 54. Proof of in attachment. No. 54. Proof of publication of sheriff's sale in attachment and the legal notice No. 66. Administrator's notice of sale and proof of publication, Nos 111 112 130, 137. Publication of notice and proof of i n sale of ward's real estate by guardian, No. 175. Receiver's notice to creditors, No. 233. Proof of same. No. 234. Receiver's sale, No. 242. Proof of same. No. 243. Notice to unknown heirs in partition, No. 2S4. Legal notice and service by publication in partition. No. 292. Legal notice and proof of same in sale or exchange of church prop- erty. Nos. 297, 303. Legal notice of sale of real estate in foreclosure proceedings and proof of same. Nos. 3 lit. 318. Notice of >ale of real estate foreclosure of mechanic's lien and proof of same. Nos. 340. 341. Publication of notice to unknown heirs in foreclosure of tax lien and proof of same, Nos. 34ti. 347. Legal notice, sale of real estate, foreclosure of tax lien. No. 352. Proof of same. No. 351. Legal notice and proof of same, vacation of street or alley Nos 425 426. Service by publication and proof of* same in the action to quiet title Nos. 431, 432. o Quiet title- Statutory and chancery, 566. The action before the statute, 567. Distinguished from ejectment, 568. Nature of the action, 569. Essential elements. 569. Nature of adverse claim, 569. 794 INDEX. [Figures preceded by "No." refer to Forms; otherwise to Sections.] Quiet title — Continued. Instruments cancelled, 569. Correct mistake in deed, 569. Tax claim cloud, 569. List of purposes for which action may be maintained, 569. Boundary line settled, 570. Statutory action, 571. Petition should allege what, 572. Answers in, 573. Cross-petitions, 573. Possession — Necessity of alleging, 574. Service — Actual — Constructive, 575. Decree quieting title, 576. Nature and effect of, 570. Jury may be demanded, 576. Injunction allowed, 578. Quiet title — Forms of procedure to — Petition, No. 428. Affidavit for service by publication, No. 429. Entry ordering service by publication. No. 430. Service by publication. No. 431. Proof of publication. No. 432. Decree quieting title, No. 433. Another form for petition, No. 434. Another form for decree quieting title, No. 435. R Railroad companies — See subjects, "Venue," "Service of Summons," "Managing Agent. Real actiou — Term defined and explained. See Preface. Receivei- — rale of real estate, 288 to 291. Source of receiver's power to sell, 288. Statutory, 288, 289. Equitable, 288. Receiver's duty, 288. Duty as to rents, 289. Duty as to claims and demands, 289. Appointment may be made, when, 290. INDEX. 7!).-) [Figures preceded by "No." refer to Forms; otherwise to Sections.] Receiver — Continued. By what court appointed, 290. What facts cause for appointment, 290. .Manner in which appointment is made, 291. Instructions of court as to sales by, 291. Appraisers in, 291. Conduct of sale by, 291. What facts necessary for valid sale, 291. In foreclosure of mortgages, 372. Receive! 1 — Forms- — for petition, No. 223. for precipe, No. 224. for summons and return, Xos. 225, 226. for motion for receiver, No. 227. for notice for appointment, No.' 228. for order appointing, No. 229. for order appointing counsel for, No. 230. for motion asking instructions as to notice to creditors, No. 231. for notice to creditors, No. 233. for proof of publication, No. 234. for inventory, No. 235. for application for appointment of appraisers, No. 236. for receiver's report of appraisement, No. 237. for oath of appraisers, No. 238. for appraisement, No. 238. for confirmation of appraisement, No. 240. for receiver's report, No. 241. for legal notice of sale, No. 242. for proof of publication, No. 243. for confirmation of sale, No. 244. for receiver's deed, No. 245. Recoup — Vendee may recoup amount of liens and incumbrances, when, 592. Relief- Nature of in ejectment, 589. Rents and profits — Accounting for in partition, 329 Residence — Not same as domicile, 154. Non-resident in attachment, 154. 79t> INDEX. [Figures preceded by "No." refer to Forms; otherwise to Sections.] Religious society — See subject, "Church and Sale of Church Property." Reversioner — In an entailed estate, 193. To take estate on non-payment of tax, when, 407. Dower in, 4.1:;. Remainder — In an entailed estate, 193. To take estate on non-payment of tax, when, 40V. Dower in. 453. Reply — Forms for — "Reply in foreclosure of tax lien, No. 332. Reply in attachment case, No. 60. Res judicata — See "Judgments." Roads — Lien for work, etc., 381. Roadbed — Unfinished of railway company condemned, how, 553. Record — » See subject, "Complete Record." s Sales — How made under executions, 100. See "Judicial Sales." See "Bona fide Furchaser." See subject, "Levy." Of real estate must be for two-thirds of appraised value, 100, 110. When court may fix price at which real estate may be sold, 110, 132. Who may not bid at sales of real estate, 111. Advertisements of, how made, 113. Advertisements of. where made, 113. Advertisements, requirement as to description of real estate, 113. Advertisements, requirements as to street number, 113. Advertisements, requirements as to roads and townships where land is situate, 113. INDEX. 797 [Figures preceded by "No." refer to Forms; otherwise to Sections.] Sales — ( 'on t in ti( d. Advertisements, requirement as to newspaper, 114. Advertisements, requirement as to number of insertions in paper, 114. See No. 136 for form of publication. See No. 137 for proof of publication. Effect of mistake in publication, 114. Publication of sale under in foreign language. 113. Costs of such publication, 115. Publication in another language dispensed with, how, 114. Confirmed, how. 118. Deed to be delivered, when, 118. Officer to retain purchase money until sale confirmed. 118. When objection to for irregularity to be made, 118. Judgment debtor may redeem from, when, 11!). Requirements to r#deem under, 119. Sales of real estate by sheriff as master commissioner, may be c >m- pleted by his successor in office by delivering deed, 121. When sales of real estate under execution required to take place. 125. Decree for sale on judgment and marshaling liens, form No. 27. Under attachment proceedings, see forms Nos. 48 to 69, inclusive. Under execution, see forms 1 to 13, inclusive. Under judgment in one county by execution to another, 14 to 47. in- clusive. Under foreign execution, see forms Nos. 35 to 47. Form of notice of sheriff's sale under vendi, No. 10. Proof of publication of notice of, No. 9. Form for notice of, No. 30. Proof of, No. 29. Form of notice of in sale where liens are marshaled, No. 44. Proof of, No. 43. By assignee, 261 to 287. By trustee in bankruptcy, 292 and following. By receiver, 288 and following. See "Entailed Estate." By administrator, 206 and following. By guardian, 245 and following. Under execution. No. 6 and following. Real estate in partition, 318. By an administrator or executor, prevented, how, 219. Sale of real estate — Procedure by which court acquires power to sell real estate, 1 to 57. Under judgments and decree, 58 to 140. Effect of under void or voidable judgment. 66. Must he appraised before sale. 103. May be sold without valuation, when, 108. Sale must be for two-thirds of appraisement, 109. 798 INDEX. [Figures preceded by "No." refer to Forms; otherwise to Sections.] Sale of real estate — Continued. "Requirement as to advertisement of sale, 113. Requirement as to description or location, 114. Language in which notice shall he published, 114. 115. Return of the writ by sheriff, 110. Purchaser may be punished for not taking, 117. Confirmation of sale, IIS. Order for deed, 118. Master commissioner can make sale, 120, 121. L'nder writ of attachment, 141 to 189. Procedure under, Nos. 48 to 09. By an administrator to pay decedent's debts, 200 to 244. Forms of procedure in action by administrator to pay decedent's debts, Nos. 94 to 102. By guardian, 245 to 200. Forms of procedure in sale of real estate by guardian, Nos. 103 to 199. By an assignee for the benefit of creditors, 201 to 287. Forms of procedure in sale of real estate by an assignee, Nos. 200 to 222. By a receiver, 288 to 291. Forms of procedure in sale of real estate by a receiver, Nos. 220 to 245. By a trustee in bankruptcy, 292 to 2!>4. Forms of procedure in sale of real estate by trustee in bankruptcy, Xos. 240 to 255. By partition proceedings, 295 to 340. Forms of procedure by sale of real estate, Nos. 250 to 295. By church or religious society, 347 to 362. Forms of procedure for sale of real estate by church or religious society, Nos. 296 to 300. By foreclosure of mortgage, 303 to 374. Forms of procedure for sale of real estate by foreclosure of mortgage, Nos. 307 to 320. By foreclosure of mechanic's lien, 375 to 390. Forms of procedure for sale of real estate by foreclosure of mechanic's lien, Nos. 327 to 343. By foreclosure of tax or assessment lien, 397 to 431. Forms for procedure in sale of real estate by foreclosure of tax lien, Nos. 344 to 304. School land — How appropriated, 547, 556. Service — See subject, "Forms." Necessity of service of summons in an action, 5. Careful attention as to, 5. 3KDEX. 799 [Figures preceded by "No." refer to Forms; otherwise u> Sections.] Service — Continued. Interest in real estate of a party not cut off without summons <>r an entry of appearance, 5. Summons directed to the sheriff . Parties bound by return of service, 27. Service conclusive as between the parties, 27. How service set aside, 27. Manner of service of summons, 28. Upon a defendant personally, 28. At his usual place of residence, 28. Upon a partnership and in its firm name, 28. When return of service to be made, 28. Manner of service to be stated in writ, 28. Particular instances of service, 28. Service of summons upon partners in attachment, 20. In replevin, 29. Partnership service at its usual place of doing business, 29. Equivalent of service of summons, 30. Acknowledgment on the back of summons or petition. 30. Acts equivalent to entry of appearance, 30. Service of summons set aside, 31. Language of the motion, 31. When motion to set aside will be regarded as an entry of appearance, 31. How corporations served, 32. Manner of service upon a railroad company, 32. Upon a street railroad company, 32. Transportation company, 32. When service may be made upon a ticket or freight agent, 32. Upon a conductor, 32. Upon motormen, 32. Service upon river transportation company, 32. Who is a managing agent, 32, 34, 37. What return should show, 33. The service upon a defunct corporation, 33. Service upon mere traveling solicitor Sections.] Service of summon? by publication — Continued. Affidavit for, 50. Requirements of, 50. For form as to, see No. 53. Filing of jurisdictional, 50. Jurisdictional in attachment proceedings, 50. How service as to publication made, 51. Kind of paper, 51. For six weeks, 51. Statements in. 51. When errors in, immaterial, 51. Description of property in, 51. Requirement in action to vacate judgment, 51. Too many publications do not vitiate, 51. In certain action under General Code, 11631 to 11G43; when a defend- ant is a non-resident of the State, in case where a corporation has not elected officers, 47. Requirement when place of residence of defendant is known. 47. Duty of clerk when residence of defendant known, 47. The affidavit for service by publication, 47. Particular instances where service may be made by publication, 47. In action for alimony, 47. Against a lunatic defendant, 48. As to an accounting against a non-resident who had been a guardian, 47. Against a foreign dissolved corporation. 47. As to a partnership, 47 In attachment proceedings, 48. The service by publication complete, when, 52. The proof of service by publication, 52 Constructive service against an unknown heir, 54. Affidavit for such service, 54. Order of court as to, 54. Attachment the affidavit, proof of publication and order in. 52, 53, 54. Service by publication — Forms for — In condemnation proceedings, No. 527. Affidavit for in attachment, No. 53. Proof of and the legal notice for non-resident in attachment. No. 54. Finding of the court and approval of service by publication in attach- ment, No. 55. Affidavit for service by publication in sale of real estate by adminis- trator to pay debts of decedent. No. 1 55. The legal notice to defendant by publication. No. 156. Unknown heirs, order for service by publication on, No. 283. Legal notice to unknown heirs, No. 284. Legal notice and proof of same — Sale of church property, No. 207. 802 INDEX. [Figures preceded by "No." refer to Forms; otherwise to Sections.] Service by publication— Forms for — Continued. Unknown heirs, order for service on in foreclosure cf tax lien, No. 345. Publication of such notice and proof of same, Nos. 347, 34(i. Publication of legal notice in vacation of street or alley. No. 563. Order for service by publication in the action to quiet title, No. 430. The service by publication and proof of same, in the action to quiet title, Nos. 431, 432. Sewers — Lien on for work, 381. Sewers and sewage — Real estate condemned, 505. Sheriff— Summons must be directed to whom, 7. Summons may issue to sheriff other counties, 8. May not serve summons handed him by another sheriff, 26. Manner in which he may serve summons, 28. See subjects, "Summons" and "Service of Summons." Duties as to sale under execution statutory, 103. Statutes strictly construed, 103. To indorse on writ his proceedings, 116. May act as master commissioner, when, 121. When required must make sale for master commissioners, 121. His fees in such cases, 121. Sales of real estate as master commissioner may be completed by his successor in office by delivering deed, 121. Recitals required in deed of sheriff or master, 122. Execution and delivery of deed by sheriff, 122. To make deed, when, 121. Effect of sheriff's deed as evidence, 124. Successors of, to make deed, when, 127. Recital in deed by successor of, 127. Amercement of for failure to perform duties under execution, 140. Sheriff — Forms for — Return of execution where levy made on real estate and not sold for want of time, No. 5. Return of execution where no levy is made, No. 20. Return of foreign execution where levy is made on real estate, No. 22. Return of writ where real estate is sold by under vendi exponas, No. 11. Sheriff's deed under vendi exponas, No. 13. Sheriff's return under decrees and order of sales, Nos. 31, 30, 29. Return of an order of attachment, No. 53. INDEX. 803 rFigures preceded by "No." refer to Forms; otherwise to Sections.] Sheriff — Forms for — Continued. Return of order of sale in attachment, No. 65. Deed for real estate sold under attachment proceedings, No. 69. Return in sale of an entailed estate, Nos. 74. ,5, 7. Liability in partition sale as to proceeds, 321. Successor to make deed, 323. Specific performance — The action to be brought, when, 12. Of sale of lands in relation to lands in another State, 12. See subject, "Venue." Stage coach companies — See subjects, "Venue," Service of Summons." Streets— Widening, change of. extending, el.-., hi eminent domain, 505. Lien on for work, etc.. 381. Bond of owner when street on highway to be opened, 577. 804 INDEX. [Figures preceded by "No." refer to Forms; otherwise to Sections.) Streets — ( 'on t in ued. Vacation of in city, village or hamlet, 562. Reverts to ownar, when, 563. Petition for and procedure in. •">'>4. Not In be closed until damages paid, 565. Petition for vacation of street. No. 424. Publication of legal notice, No. 42.~>. Proof of publication, No. 426. Order and decree vacating, No. 427. Statutes of limitation — Ejectment, 3S8. Subrogation — Of purchasers at judicial sale, 71. Does not apply as against bona fide purchaser, 71. Summons — Rule as to one serving sentence in penitentiary, 9. Form in action on judgment, No. 16. Return of same. No. 17. From action to marshal liens. No. 17. Return of same, No. IS. Summons to another county. No. 38. Sheriff's return of, No. 38. When it nay issue to another county, 8. Attorney while in another county may not be served, when, 23. In what cases persons may not be summoned, 23. Rule as to members of legislature, 23. Returnable, when, 24. Service on return day is had, 24. Right to object to service waived by answer, 24. New summons not necessary on filing amended petition, 24. When cause of action changed, new summons should issue, 24. Alias summons should issue, when, 25. By Avhom service of summons may he made, 26. How may be made by one not an officer, 26. In what case return to be made under oath, 26. What it must contain — Form required by statute, 7. To whom directed. 7. Indorsements on, 7. No indorsement on summons in equity case, when, 7. Judgment can not be taken for m.-i? than amount named in summons, 7. Maker or acceptor of a bill liahle, when. !». Drawer of an instrument for money only liable, when. 0. Foreclosure of mortgage authorizes summons for a defendant in any other county in the State, 9. INDEX. $05 [Figures preceded by "No." refer to Forms; otherwise to Sections.] Summons — < 'on t in tied. Creditor's suit to set aside fraudulent conveyance to be brought where land lies. 10. Waiver of summons — Facts constituting, S. Venue to determine where summons may issue to another county, !>. What is meant by an action rightly brought, !». In what instance defendants may be y ined so as t get service on one in another county. 9. The joint contract must be a real, not a fictitious contract. 9. The defendant must not be a nominal defendant. 9. An action to enjoin judgment— Sheriff not a necessary party. 9. For forms for. see Nos. 16, 24, 36, 37, 96, 11!.. 181, 206, 258, 309, 330, 366, 376. Sheriff's return of. For forms, see Nos. 17. 37, 97. 120, 207, 226, 259, 309, 330. 367. 377. Its command and service in condemnation proceedings, 526. See subjects, "Service," Service by Publication," "Return." Surveyor — Duty of county surveyor in delinquent tax sale matters. 422. Survey — Lands sold at delinquent tax sale. 422. 423. 428. Dispensed with at delinquent tax sale, when, 428. Superior court — May hear condemnation proceedings, when, 555. Tax lien — Procedure in foreclosure of, 397. Lien attaches, when. 398. Penalty for non-payment of tax, 399. Life estate, owner of to pay, 400. Duty to list property, whose, 401. Penalty for neglect to list, 402. Attorney's duty as to payment of client's tax, 402, 404. Manner in which attorney or agent may pay, 402. Agent's duty as to. 402, 404. Guardian's liability for neglect to pay tax, 402. Executor's duty as to. 402. Executor's lien on payment of, 406. When lienholder pays tax to have tax lien, 408. Rights of joint owner who pays tax, 409. Partition case — taxes in, 409. 806 INDEX. [Figures preceded by "No." refer to Forms; otherwise to Sections.] Tax lien — Continued. Judicial sale — Taxes paid in. 410. Publishing delinquent list. 412. Form for, 412. Failure to publish, 412. Effect of failure to publish, 412. Auditor's duty in tax sale. 414. 415. 421. Proceedings when delinquent list not published, 416, 417. List of delinquent lands to be sent to auditor of State, 41N, 421. Sale of delinquent lands. 41!). Procedure in, 410. Procedure when purchaser fails to pay. -420. Certificate to purchaser. 422. County surveyor's duty in. 422. Surveys made. when. 423. Certificates of purchaser at. 422. Certificates assignable. 424. Deeds made. when. 423. Title deed at delinquent sale for tax, 426. Deed as evidence, 426. Tax sale cuts out dower and previous liens. 427. Survey in sale dispensed with, when. 42S. Purchase by joint tenant, 429. When title at tax sale invalid. 430, 4:51. 432. Statutes strictly construed, 437. May be shown dehors the record statute not followed, 431. Rights of purchaser at delinquent sale — When sale invalid. 432. Effect on sale, when tract charged in wrong name. 433. Description of real property in delinquent sale. 43;"). Auditor to make deed of land at delinquent sale heretofore, 435. Lost certificate of delinquent sale, 436. Destroyed certificate of delinquent, sale. 436. Auditor's minutes in delinquent tax sale. 437. Auditor's minutes as to redeemed lands. 43S. Sale of lands by mistake on which taxes have been paid, 430-457. To redeem lands — Application to be made to auditor, 442. Redemption of delinquent lands. 443. 444. 445. 440, 447, 448. Limitation as to, 443. Purchaser's improvements — Paid. how. 440. Sale of permanent lease for tax. 450. Tax lien, foreclosure of — Forms of — Petition in foreclosure of tax lien, No. 344. Order for publication on unknown heirs. No. 345. Proof of publication, No. 346. Legal notice of publication, No. 347. Order foreclosing lien and ordering sale, No. 348. INDEX. 807 [Figures preceded by "No." refer to Forms; otherwise to Sections.] Tax lien, foreclosure of — Forms of — Continued. Order of sale from clerk to sheriff. No. 349. Sheriff's return of his proceedings in. No. 350. Proof of publication of notice of sale, No. 350. Legal notice of sale, No. 352. Appointment of appraisers. No. 353. Oath of appraisers. No. 354. Appraisement, No. 355. Confirmation of sale, No. 350. Sheriff's deed to purchaser, No. 357. For tax certificate. No. 358. For auditor's deed, No. 359. Petition by treasurer of county to sell land to pay tax. No. 360. Order of sale in. No. 361. Answer in. No. 362. Reply in, No. 363. Another form for order of court foreclosing lien. No. 364. Tenant — Dower tenant failing to pay tax forfeits estate, when. 407. Curtesy tenant failing to pay tax forfeits estate, when, 407. Other life tenant failing to pay tax forfeits estate, when, 407. Rights of joint tenant who pays tax in, 400. Rights of purchaser of interest of joint tenant as to tax, 429. Title- Delinquent land sale, 426. 430. Transfer of by assignment of dower, 452 to 501. Procedure by transfer of title by assignment of dower, Nos. 365 to 387. Transfer of by condemnation proceedings, 502 to 561. Forms for procedure in transfer of title by condemnation proceedings, Nos. 388 to 423. Transfer of by vacation of street or alley. 562 to 565. Forms for procedure by transfer or vacation of street or alley. Nos. 424 to 427. Confirmation of by the action to quiet title, 566 to 578. Forms for procedure by which title is confirmed by the action to quiet title, Nos. 428 to 435. Required to give party benefit for improvements, 594. Plaintiff's title in ejectment, 585. Back to common source in ejectment, 586. Trial— Who entitled to in condemnation proceedings, 528. Time of in condemnation proceedings, 532. Adjournments in condemnation proceedings, 532. 808 INDEX. [Figures preceded by •'No." refer to Forms; otherwise to Sections.] Trial — Continued. Title to real estate by condemnation proceedings, 502 and following. Forms in. See Nos. 388 and following. See subject, "Judgments," "Caveat Emptor." Examination of before bidding at sheriff's sale, 65. Unaffected by sale under void judgment. 65. Trustees — Forms for bond in sale of an entailed estate. Nos. 78, 89. Trustee's duties in sale of church property, 347. 348, 349, 351, 354. 358, 361. May not l>id at liis sale of real estate. 111. Testamentary guardian — May consent to sale of entailed estate, 199. Tire- Lien for furnishing, 377. r Timber lauds — Dower of widow in, 483. Sherifi s duty as to dower in, 483. Procedure as to assignment of dower in, 483, 483 note. u Universities — Real estate condemned for, 505. "Verdict — Motion to set aside, 80. Judgment on, 80. See subject, "Judgment." To be entered on judgment, 81. To be entered against, when, 82. Special, 81. On condemnation proceedings, Nos. 40fi, 421. Confirmation of in eminent domain, 540. In foreclosure of mechanic's lien, No. 333. In attachment on trial of issues. No. til. Judgment and execution on verdict for plaintiff— Occupying claim- ant's law, 600. For occupying claimant, 601. INDEX. 809 [Figures preceded by "No." refer to Forms; otherwise to Sections.] Value — Witness as to opinion of value of land. 513 note. Witness as to amount of damage, 513 note. Venue — .Mortgagee of real property not part of an entire tract, situate in more than one county, not charged with constructive notice, 11. As to specific performance of contract of sale of real estate, 12. Specific performance may be compelled in county where defendants, or any of them, reside, 12. May be brought where land is situated. 12. May be enforced as to contract concerning Lands in another State. L2. The action for the recovery of a fine, forfeiture, or penalty imposed by statute, 13. The rule where an offense is committed on a river, watercourse, or road, the boundary of a State or two or more counties. 13. Change to what court, 21. Costs of jury in same — How allowed and paid, 21. Constitutionality of the law as to, 21. The question of venue to be raised by answer, when. 10. The action to recover damages for wrongful act, neglect, etc., where to be brought, 19. Rule where several defendants in several counties have been sued for negligence, lib Rule in action to foreclose mortgage and for a personal judgment, when a defendant lives in another county, lb. Change of, how secured, 20. Must be to an adjoining county, when. 20. Rule when the action in superior court, 20. Change of in suit by or against corporation, 21. What the affidavit therefor must contain, 21. Duty of court as to. 21. Property of, or debts owing to the defendant may be found, 18. A nonresident or foreign corporation may be sued, where the. cause of action, or some part thereof, arose, 18. Non-resident or foreign corporation may be sued where they may be found, IS. As to actions brought to enforce liability of stockholder, IS. When personal service may not be made out of State on a non-resi- dent. 18. Rule as to where all other actions must be brought, 10. Must Ik- brought in county where defendant resides or ma* be sum- moned, 10. Where executor, administrator, guardian may be sued. ]!>. Venue statutes to be liberally construed, 10. When the action may be brought in two or more counties. 13. 810 INDEX. [Figures preceded by "No." refer to Forms; otherwise to Sections.] Venue — ( 'ontin ued. Action against a public officer to be brought where the cause of action arose, 13. As to corporations, 14. As to partners in attachment. 211. As to partners in replevin, 29. For the recovery of real property, 9. For the recovery of an interest in real property, f). For partition of real property. 0. For sale of real property under mortgage. lien, or charge, 9. For an action under the trust statute, 9. The action where part of property is situated. 11. w Water works — Real estate condemned for, 505. Waste Forfeits dower, when. 473. Wardens — Duty of sale of church property, 348. Will- No order of sale required to sell to pay debts, when, will sale not authorized by will. 241. May be construed in partition suit. 302. Where assets marshaled according to terms of. 2 IS. Widow — May give bond to prevent sale of real estate, 221- See subject, "Dower." See subject. "Answers." Will— Contest of— Nature of the action. 611. Answer in, 661. In chancery, or under code, 611. Issues made up, how. Oil. Proceedings in probate court, 611. Proceedings in probate c< urt reviewable, 611. Proceedings in rror. (ill. Probate in. ex parte in. it^ nature. 611. No appeal on refusal to probate, 611. INDEX. HI [Figures preceded by "No." refer to Forms; <>t!i< 9 -.] "Will — Contest of — Contintu Prima fa rir case. 611. In what court action brought, till. Jury in. 611. The scope of the inquiry. t>12. May be a? comprehensive as inquiry for admission to, 612. Probate, same rule-? as to codicil a- to will. 612. Who may make. 613. Disponing mind and memory. *i 1 -t. Discussion of. 014. Particular instance* of. what constitutes, 614 note. Undue influence, 615. Discussii d of, 615. Restraint. 615. Fear. 615. Disease. 615. Passion, prejudice, religious influence, secular training, not undue influence — Persuasion, earnest solicitation, 615. The manner in which will must be executed. 615. Writing, hand-written or typewritten. 616. signature of witness, tilt!. Intention of the legislature as t<> attestation, signature, 616. •Signing in the wrong place, 616. Blanks in for signature. 616. Particular instances of attestation and non-attestation, ni 16. Acknowledgment by testator. 617. Attestation of will. 617. Witnesses may sign. when. 617. 617 note. May be revoked, how. 618. Tearing, cancelling, etc.. 618. Will once in existence and lost, presumption as to, tilS note. Declaration of testator as to, 618 note. Clerk must certify to probate court, what. 619. Duty of probate judge as to notice of contest, 620. Papers to be sent to common pleas, 620. Return from common pleas to probate c turt, 620. The manner in which issue in contest made up, 621. The nature of the action. 621. Statute controls the issue, 621. Conduct of the trial. 622 Who must open and close evidence and argument, 622. The action to be tried by jury. 02:>. Court may direct verdict, when. 623. Effect of court and jury in will contest, 623. Effect of order of probate on the issue, 624. Instruction as to preponderance of evidence. 624. What testimony competent in, 625. 812 INDEX. [Figun - fled by "No." refer to Forms; otherwise to Sections.] "Will — Contest of — Continw Who may contest a will or codicil, 626. ssary parties to the action, 627. Statute of limitation as to action. 628 Appeal in. 629. "Will Contest— Forms in— The petition. No. 455. The summons in the action, No. 4">7. SlieiiiT's return on the summons, \ . 458. Journal entrj and certificate of probate court in the action to con- test will, No. 460. Certificate to court of common pleas in action to contest will, No. 461. Joint answer of the defendants in action. No. 4'r2. The verdict <•( the jury sustaining the will, No. 463. Motion tor new trial. No. 464. The judgment of the court overruling motion for a new trial and sustaining the will. No. 465. The certificate of the clerk of the court of common pleas, with copy of final judgment to the probate court after final judgment is rendered in the action to ci ntest the validity of the will. No. 4titi. The application for the appointment of guardian ad litem in. No. 4(i7. The order of the court appointing guardian ad litt m for minor de- fendants, in. No. 468. Another form for a petition, No. 471. Another form for the answer of defendants, No. 672. Petition to contest will for the reason that the testator was not of sound mind and memory and under undue influence and re straint in attempting to make same. No. 473. Petition to contest nuncupative will, No. 474. iiiiiiiiiiii mm iimi AA 000 745 453 i M