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trator in pursuance thereof. The proceedings are set forth in a bill of exceptions taken at the trial in the common pleas, and the only controversy is as to the jurisdiction of the court to order the sale of the lands.
The petition of the administrator set forth the indebtedness of the estate, and the amount of the personal property; that it was insufficient to pay the debts; and that a short time previous to his death, and up to the fourth March, 1879, the decedent was the owner of certain real estate situate in the county, describing it, and then averred "that on the fourth day of March, A. D. 1879, the said John Spoors, decedent, being then very aged and infirm, and feeble in body and mind, and being deeply involved in debt, did, by his deed of that date, convey to the defendant Jerome Spoors all the above-described real estate; that the consideration expressed in said deed of conveyance for and of said real estate was six thousand ($6,000) dollars; that the defendant Rhoda Spoors, then the wife and now the widow of decedent, joined in said deed of conveyance; * * * that said conveyance of said land by said decedent to said defendant Jerome Spoors was in fact made without any other or further consideration than the promise of said defendant Jerome Spoors, who is the son of said decedent, that he would pay the debts of said decedent, and that he would keep and maintain the said decedent and his wife, now his widow, during their natural lives; that the promise of said Jerome Spoors to pay the debts of said decedent, and to keep and maintain said decedent and his wife, now his widow, during their said lives, was the whole consideration for said land paid and to be paid by said grantee, Jerome Spoors, to said decedents; that said Jerome Spoors has not paid the debts of said decedent, nor any part thereof, nor did the said Jerome Spoors keep and maintain said John Spoors, decedent, and his wife, during the life-time of said decedent, nor has he kept and maintained said Rhoda Spoors, widow of said decedent, since the death of said decedent, nor does he now keep and maintain her; that the petitioner has been and is now in the exclusive possession of said premises herein described since the death of said John Spoors, and the appointment of the petitioner as administrator of said estate; that said decedent died leaving Rħoda Spoors, his widow, who is entitled to dower in said premises, and the following-named persons his heirs at law, having the next estate of inheritance to said premises, as follows,” naming them. The only prayer for relief against the widow was “that the dower of the said Rhoda Spoors may be set off and assigned to her.” It also contained a prayer for an order to sell the land, being something over a hundred acres, for the purpose of the proceeding.
An appearance was entered and an answer filed for the widow by the attorney who acted for the administrator, in these words: “And now comes Rhoda Spoors, and, in answer to the petition of the plaintiff herein, says that she desires to inform the court that she waives the assignment by the court to her of her dower estate in the land of her late husband, John Spoors, and elects to take her dower in said estate in money, and prays the court to protect her interest in said estate."
On December 9, 1879, the cause came on for hearing; and, Jerome Spoors admitting the averments as to himself to be true, the court found that it was necessary to sell the lands to pay the debts of the estate, and "that the deed from the decedent to the said Jerome Spoors is null and void, and proved no title to said Jerome Spoors in said lands described therein, and in the petition herein;" and further found “that the conveyance by defendant Jerome Spoors to the widow, Rhoda Spoors, of two acres of land, being part of the lands of said decedent not included in the 100 acres herein before described, is null and void, and said Rhoda Spoors did not take any title to said two acres thereby;" and ordered the land to be appraised and sold "free from the dower estate of said widow, Spoors, therein." The petition contains no allusion to any conveyance having been made to the widow of a part of the land, and no relief was asked as to her other than as before stated. The land was appraised and sold by the administrator, under the order, to Cowen. The sale was confirmed by the court, and a deed made to Cowen.
MINSHALL, J. There are, as we think, two different reasons for holding that, upon the case as reserved to this court, judgment should be rendered for the plaintiff: (1) The probate court is not clothed with the jurisdiction it assumed to exercise in setting aside the conveyance to Rhoda Spoors; (2) but, if it were, no such jurisdiction had been invoked by the administrator in his petition as against her.
1. The probate court had no jurisdiction; for, although it is provided in section 6139, Rev. St., that the petition to sell lands to pay the debts of the estate “shall include all the deceased may have conveyed with intent to defraud creditors," yet it is provided, in section 6140, Rev. St., that, “where such land is included in the application before a recovery of the possession thereof, the action shall be in the court of common pleas.” The revision of this provision doubtless arose from a persuasion, in the mind of the legislature, that a recovery of such lands involved an exercise of jurisdiction that should only be conferred on the courts of common pleas; they being courts of general jurisdiction in matters of law and equity, and therefore more competent, from the character of their judges, constantly employed in the exercise of such jurisdiction, to hear and determine such matters. And so, to avoid a multiplicity of suits, it is provided that an action to set aside a conveyance of lands that had been made by a decedent to defraud creditors may be united with a proceeding for an order of sale to pay debts, by resorting, in the first instance, to the court of common pleas. In this case the pleader seems to have assumed that he had avoided this objection to the jurisdiction of the court by the averment “that the petitioner has been and is now in the exclusive possession of said premises." But mere possession, herein exclusive, by the administrator, does not confer jurisdiction upon the probate court to order a sale to pay debts, unless the possession had been recovered in an action against the grantee, or those claiming under him, for the purpose of having the conveyance set aside as fraudulent against creditors. Until the conveyance has been set aside by the judgment of a competent court, or a reconveyance made þy the party holding the title, an order for the sale of such lands to pay the debts of the decedent cannot be made in the common pleas or probate court. This is in harmony with what has been the settled policy of our state in the matter of judicial sale, which has always been to so offer the land as to transfer it to the purchaser with a good title; but an administrator's sale may be made, instead of offering it, as a lawsuit, for what can be obtained from those who may feel disposed to invest in litigation. Hence possession, not acquired as the fruits of a judgment in a suit to recover the land, avails nothing, where the proceeding for an order of sale is begun in the probate court, instead of the common pleas.
2. But, had the probate court the same jurisdiction in such matters as the common pleas, it would avail nothing in this case, for the reason that no such jurisdiction was invoked by the petition of the administrator as against Rhoda Spoors. There is no averment in the petition that any lands had been fraudulently conveyed, mediately or immediately, to her. The only averment as to her is that she is entitled to dower in the lands for which an order of sale is asked; and the only relief asked as to her is that her dower be set off and assigned therein. And, in the answer filed for her by the attorney of the administrator, she simply waives an assignment of dower in the lands, and elects to take the same in money.
It is by no means intended to question or impair the principle that, where jurisdiction has been obtained over the subject matter of a cause by a court competent to exercise it, its judgment, however erroneous, cannot be questioned in a collateral proceeding. A judgment so rendered can only be set aside or questioned in a direct proceeding instituted for that purpose. This is familiar law. Freem. Judgm. § 135. But a judgment rendered by a court of competent jurisdiction in a case brought before it, however erroneously the jurisdiction may have been exercised, is one thing, and a judgment entered by a court of like jurisdiction in a case not before it is another and a different thing. In the one case its judgment may be erroneous; in the other it is void. To bring a cause before a court competent to adjudicate it, it is not only necessary that the parties should be in jus vocatio, cited or summoned in the manner required by the law of procedure, but a case must also be made or stated affecting the party against whom relief is asked. The power to hear and determine a cause is defined to be jurisdiction, (Freem.. Judgm. § 118,) and, to use the language of RANNEY, J., in Sheldon v. Newton, 3 Ohio St. 494, “it is coram judice whenever a cause is presented that brings this power into action.”. “But,” he adds, “before this power can be affirmed to exist, it must be made to appear that the law has given the tribunal capacity to entertain the complaint against the person or thing sought to be charged or affected; that such complaint has actually been preferred; and that such person or thing has been properly brought before the tribunal to answer the charge therein contained." The italics are our own, to call attention to the clause applicable to the question in the case before us.
It is not necessary that the statement of the claim should be so perfect in form and substance as to be free from objection on demurrer to confer jurisdiction upon the court to hear and determine it. Buchanan v. Roy, 2 Ohio St. 252. If the case presented invoked the jurisdiction of the court, and could have been perfected by amendment, the judgment of the court therein could not be treated as a nullity. But, in order that a party may be permitted to amend, there must be something to amend by, (Shamokin Bank v. Street, 16 Ohio St. 10;) so, unless a case is presented that could be amended, there is no case upon which a judgment can be rendered. A judgment rendered, where no case has been stated, is as much a judgment upon a case coram non judice, whatever may be the jurisdiction of the court rendering it, as a judgment upon a case, however perfectly stated, before a court not clothed with jurisdiction to hear and determine it. If there were a note secured by mortgage, and suit were brought upon the note for a money judgment only, it would hardly be claimed that a judgment of foreclosure would be of any validity even as against the mortgagor. And yet the case presented in this record is not distinguished in principle from the case just supposed.
In Strobe v. Downer, 13 Wis. 11, Downer had purchased lands at a sale made in a foreclosure proceeding, on which Strobe, by assignment from one Weiner, held a prior mortgage. The bill contained an averment that Weiner had or claimed some interest in the property, and he was made a party, but he did not answer. The judgment in foreclosure purported to bar him of all right in the premises. In a suit brought to foreclose the mortgage by Strobe, the court treated the question as if Weiner had remained the owner of it, and held that the purchaser under the decree made in the former proceeding took nothing as against Weiner or his assignee. The court said: “It was stated in the complaint that he claimed an interest in the land, and there was no allegation against its validity which called on him to defend. Without any allegation in the complaint contesting his title, he had a right to assume that the proceeding would be conducted upon the theory that his lien was paramount to that of the plaintiff, and that his rights were not to be affected by the proceeding.” The case of Lewis v. Smith, 9 N. Y. 502, was cited and approved, where it was held that the widow was not divested of dower in the lands of her deceased husband by a decree to that effect, in a proceeding, to which she was a party, for the foreclosure of a mortgage she had not signed. The bill contained the general allegation that she claimed some interest in the premises subsequent to the mortgagor, or otherwise. Her husband had devised her all his real estate for life, with remainder over; but whether the devise was in lieu of dower or not was not stated. The court held, in a suit for that purpose, that she was entitled to dower in the land, and that she was not barred by the decree in the former suit. Commenting on the averments of the bill, DENIO, J., said: “As a devisee of the mortgaged premises and an executrix of the mortgagor, the plaintiff was a necessary party to the bill; but in her character of widow, entitled to dower by virtue of her coverture before the mortgage was given, she had nothing to do with the foreclosure. Having no defense to make to her interest as devisee of the equity of redemption, and being unable to resist the claim to a decree against her for any ultimate deficiency, she had no motive for answering the bill. It made no claim and prayed for no relief that she could defend against.” EDWARDS, J., also commented upon the fact that the "complaint in the foreclosure suit made no allusion to the claim of dower." See, also, the case of Williamson v. Probasco, 8 N. J. Eq. 571.
Considered on reason and authority, the right of the plaintiff to recover upon the case as reserved, seems clear. There is no allusion in the petition of the administrator to any lands having been conveyed to her fraudulently or otherwise; no prayer for any relief against her except as to her dower in the lands; and it follows that the judgment of the court that the conveyance that had been made to her of two acres and a fraction was null and void, was itself null and void, as, if for no other reason, a judgment upon a matter not before it. Its jurisdiction as to this, if it had any in such cases, had not been invoked. It follows that the sale and deed of the lands of the plaintiff made under its order conferred no title on the purchaser, and that judgment should be rendered for the plaintiff as she has prayed in her petition. Judgment accordingly (44 Ohio St. 490)
CASTLE V. RICKLY.
(Supreme Court of Ohio. December 7, 1886.) PROMISSORY NOTES LIABILITY OF OUTSIDE Party-SIGNING ON BACK.
A promissory note, payable to M. or order, was delivered to the payee, who indorsed it in blank, and offered it to R. in part payment for property purchased. R. declined to take it without the signature thereon of C., a stranger to the note. C. thereupon, before the maturity of the note, and to give it credit, signed his name under the indorsement of the payee, and the note was then taken by R. Held, that C. was an unconditional guarantor, and that the owner and holder of the note had a prima facie right of recovery against him, without proof of demand and no
Error to district court, Franklin county.
DICKMAN, J. On the eighteenth day of November, 1872, George W. Griffith, for value received, made his two promissory notes of that date, for $156 each, to Jacob Matheny or order, payable, respectively, in three and four years after date, with interest from date, payable annually. Both notes bore the indorsement “Protest waived. J. S. MATHENY. G. F. CASTLE.” Matheny, and Castle, the plaintiff in error, purchased a house and lot in Columbus, Ohio, of Samuel S. Rickly, one of the defendants in error, and these notes were transferred to him as part of the purchase money. Upon non-payment of the notes by the maker, at maturity, an action was brought by Rickly on each note, against Griffith, Matheny, and Castle, in the court of common pleas for Franklin county, but the two cases were consolidated; and, Griffith and Matheny being in default for demurrer or answer, the case, as consolidated, was tried on the issues made by an amended petition, and the answer of Castle thereto. The notes were taken by Rickly several days after they were executed and delivered to the payee, to-wit, about December 10, 1872. Although the payee bad indorsed them, Rickly, before taking them, required, for additional security, that Castle should also put his name on the back thereof. Castle accordingly, and before the notes had matured, signed his name thereon under that of the payee. The notes were then delivered to Rickly, and the real-estate transaction was consummated. On the trial in the common pleas, evidence was offered by the defendant tending to show that the words “Protest waived” were put on the notes by Matheny some considerable time after their delivery to Rickly as part payment for the real estate, and that Castle had no knowledge thereof until after the original action was brought.
Among other things, the court charged the jury as follows:
“(1) The instruments sued on in this action are not foreign notes, but are inland notes; * * * but it was necessary, at maturity, to demand payment of the maker, and, on his failure to promptly pay the same, to give immediate notice of such demand and dishonor to the indorsers, unless demand and notice of such non-payment had been waived.
“(2) But, whether he [the defendant, Castle] was indorser or guarantor, the nature of his undertaking was such that he was entitled to have notice of demand and non-payment of said notes, the same as if he was a mere indorser; and, if no such notice was given to him, the plaintiff cannot recover, unless you should find, from the evidence, that the words • Protest waived' were on said notes at the time the said Castle indorsed them, or they were subsequently placed there by his authority."
But the court refused to give the following in charge to the jury, as requested by the plaintiff, to-wit:
“If you should find, from the evidence, that the said Castle did not indorse said notes, by writing his name on the back thereof, under the words · Protest waived,' or at the same time, and as part of the same transaction, he did not write, or there was not written over his name, the words Protest waived,' yet, if you should find, from the evidence, that the said Castle indorsed said notes, by writing his name upon the back thereof, in blank, after the execution of said notes, and that the said Castle was not an original party to the notes, but a stranger, this would constitute an absolute and unconditional guaranty of said notes by the said Castle; and, the said Castle having made no defense to said guaranty, he would be liable, as guarantor of said notes, without notice to him of demand and non-payment, or protest, and your verdict must then be for the plaintiff, finding the amount due the plaintiff from said defendant, Castle, on said notes." -To which charge, and refusal to charge, the plaintiff at the time excepted. A verdict was returned in favor of Castle. A motion for a new trial being overruled, judgment was entered on the verdict, and a bill of exceptions, embodying all the evidence adduced on the trial, was allowed, and made part of the record. The district court reversed the judgment of the common pleas, for error in its charge and refusal to charge the jury as requested, and remanded the cause for a new trial. This proceeding is instituted to reverse the judgment of the district court.
It is not claimed that the plaintiff in error ever had notice of any demand of payment on the maker of the paper in question, and of its dishonor. The jury was doubtless satisfied that Castle had not expressly waived demand and notice; that he had not adopted the words of waiver put on the notes by Matheny. From the charge of the court, and its refusal to charge as requested, the jury could not but find that Castle had the rights of an indorser, and was entitled to have notice of demand and non-payment of the notes, and that the plaintiff, upon his failure to give such notice, could not recover. The question, therefore, arises whether Castle is to be regarded as an indorser of negotiable paper, with the liabilities and rights incident to such an engagement, or a guarantor, whose guaranty was of such nature as to render it unnecessary