
    Ream et al. v. Wolls.
    
      Act to provide for sale or lease of estates tail — Does not apply, to previously existing estates — Act of April 14, 1859. — Guardian of minor children cannot bind minors or their legal representatives, when.
    
    1. The act to provide for the sale or lease of estates tail in certain cases, passed April 14, 1859, 1 S. & S., 550, does not apply to previously existing estates. Gilpin v. Williams, 25 Ohio St., "¿83.
    2. An order for the sale of an estate limited to the first taker for life, remainder to her children, created previously to that statute, made in a proceeding commenced by the life tenant, is of no legal force whatever, because the court is without jurisdiction of the subject matter, and may therefore be collaterally impeached, by those who did not, or who could not'by reason of minority, assent.
    3. The fact that the petitioner, the life tenant, was the guardian of her minor children, and as such guardian entered their appearance and consented for them, does not estop such minors, or their legal representatives, on the termination of the life estate, from recovering the possession of the land from a purchaser at the sale or those claiming under him.
    (Decided October 31, 1899.)
    Error, to the Circuit Court of Franklin county.
    
      E. L. DeWitt, for plaintiffs in error.
    The claim of the plaintiffs in error is that the said action of Sarah T. Ream, in 1864, was unauthorized by law, and that the said sale therein was invalid and void and that the purchaser thereunder acquired no title except to the life estate of Sarah T. Ream. The court did not have jurisdiction to order the sale of the estate in remainder. There was no authority for such sale of life estates until the act of 1859 (56 O. L., 154) was passed. This court has in Gilpin v. Williams, 25 Ohio St., 283; Nimmins v. Westfall, 33 Ohio St., 213, and Oyler v. Scanlan, 43 Ohio St., 308, held that that act was unconstitutional and void as to estates which had vested before the passage of that act. 1 Freeman on Judgments, section 120, citing a number of. authorities and among them is Gilliland v. Sellers, Adm’r, 2 Ohio St., 223.
    A judgment rendered by a court without jurisdiction, is a mere nullity, and may be so held wherever and whenever and in whatever way it is sought to be used as a valid judgment. Towns v. Springer, 9 Ga., 130; 1 Black on Judgments, sections 218, 278, note 186; Adams v. Jeffries, 12 Ohio, 253; State v. McGehan, 27 Ohio St., 280; 1 Freeman on Judgments, section 117. 1 Black on Judgments, section 216; 9 Texas, 313; Reed v. Wright, 2 Greene (Iowa), 15.
    Section 19 of article 1 of the constitution says: “Private property shall ever be held inviolate.” Section 28 of article 2, says: “The General Assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts.”
    Does the fifth section of the act which authorizes guardians to consent to a sale for their wards relieve the act of its unconstitutional character and effect? The section is as follows:
    “Sec. 5. All parties in interest may appear voluntarily and consent in writing to such sale, and testamentary guardians and guardians appointed by court of probate may assent, in the place of their wards to the sale.” 1 S. & 0., 551.
    It may be that it was the legislative intent that this section should apply to estates which had vested before the passage of the act as well as those which vested afterwards. So it was the legislative intent that the entire act should so apply. But this court in the cases above cited hold that such intent over-leaped itself; that the entire act was unconstitutional and void as to estates which had vested before its passage. How, then can any part of the act which attempts to confer powers to sell such estates, which did not exist before the passage of the act, be constitutional and operative?
    If consent could give jurisdiction, consent would give jurisdiction to one court, as well as another, a justice of the peace as well as a common pleas court.
    Consent of parties may in a certain sense give jurisdiction of the person, but it cannot create a jurisdiction over the cause and subject matter, which is not vested in the court by law. Santom v. Ballard, 133 Mass., 464; Brown v. Webber, 6 Cush, 563; R. & Bk. Co. v. Harris, 5 Ga., 527; 1 Black on Judgments, section 217; 1 Freeman on Judgments, section 120; Fleischman v. Walker, 91 Ill., 318; Peak v. The People, 71 Ill., 278; Dicks v. Hatch, 10 Iowa, 380; Moore v. Ellis, 18 Mich., 77: Damp v. Town of Dane, 29 Wis., 419; Molandin v. C. C. R. R. Co., 3 Colo., 173; Id., 275.
    Certainly, before the passage of the act, a court would be without jurisdiction to entertain an action brought to sell such an estate, although the remaindermen were. competent to consent to a sale, and should consent to it. And certainly, if the court should attempt to entertain the case, and order a sale and a sale should be made, and a record made up showing all parties in interest consenting, the purchaser might, perhaps, have a kind of title by estoppel. But certainly not by virtue of the order or judgment of the court.
    Another very cogent reason why the court should adopt my construction in this case is, that the guardian consenting for the minor heirs of Jonathan Ream, was the life tenant, and on whose application the proceedings to sell were had. Her interests were necessarily antagonistic to- her wards, and hence she was incompetent to consent for them. The sale complained of ought to be treated as void on this ground alone. Sargent v. Rowsey, 89 Mo., 662; Marx v. Rowlands, 59 Wis., 110; Havens v. Sherman, 42 Barb., 636; Bloom v. Burdick, 1 Hill, 130; Schneider v. McFarland, 2 Const., 459; 2 Pet., 249; Townsend v. Tallant, 33 Cal., 45; Freeman on Void Judicial Sales, section 17.
    In the said sale by the life tenant, no doubt the estate of the life tenant was sold, and the purchaser and those claiming under him had the right of possession during the life of the life tenant.
    The cause of action of these plaintiffs did not arise until the death of the life tenant. This action was commenced within a very few months after the death of the life tenant.
    
      J. D. Sullivan, for defendant in error.
    If without regard for any statutory enactment upon the subject, the court could render the order and decree which it did render, in this case, then, though the particular statutory enactment may be unconstitutional, the judgment is valid until reversed in the usual way. 17 Ind., 514; 45 Neb., 781; 80 Mich., 311; 139 N. Y., 337; 13 Ohio C. C., 23, 7 Circ. Dec 1, 5; 38 Conn, 449; 3 Dist. Col. App. Cases, 149-161-2 and 3; 25 Ohio St., 283; 33 Ohio St., 213; Free on Judg., sections 151, 487, 513.
    From 1859 to 1874 nobody challenged the law for the sale of “entailed estate, etc.” (56 O. L., 154), and its amendment. It was enacted by the law-making power of the State; the courts were bound to obey it until challenged, it would be their duty now to obey it unless challenged by the proper parties and in the particular case.
    The guardian acted under section 4 of that law, now section 5806, Revised Statutes of Ohio.
    The fact that since the judgment and decree the law has in some respects been declared unconstitutional, does not render the decree liable to collateral attack. If the law gave the court jurisdiction of the subject matter and it acquired jurisdiction of the parties, what subsequently became of the law is no concern of the purchaser, so far as his rights are concerned. 55 N. J. L., 254; 142 Ills., 388; 8 Wash., 467; 114 Mo., 158; 133 Ind., 147.
    The question here is not an unconstitutional law, but a solemn judgment and decree of the court upon a cause in which it had jurisdiction of the subject matter, and acquired jurisdiction of the parties in the usual way, and which remain on the record of the court in full force 37 Ohio St., 147.
    The plaintiff proved no title whatever, gave no evidence of a deed to Jno. W. Ream from any one, and did not show any title or possession in plaintiffs, or those under whom they claim, nor who gave title to this land. The plaintiff’s title was in issue, and they ought to prove it by competent testimony. 130 Mo., 348; 161 Pa. St., 447; 130 Ind., 297; 92 Tenn., 743; 97 Ind., 463; 98 Ala., 479; 109 Ind., 472; 157 Pa. St., 246.
    And the court will not consider the title or want of title in the defendant until after it ascertains whether the plaintiffs have established title in themselves. 48 N. E. R., 627. Where the title is secured by a judicial sale and confirmation, that may be relied on, and the only question the court will consider is the validity of the judicial sale as the same appears by the record — if the court had jurisdiction of the parties and of the subject matter, that is conclusive. 143 Ind., 467.
    The source of title, therefore, is not the same in the plaintiffs and defendant. 3 Wash. R. Pro., 163; 20 S. Rep., 419; Coke on Litt., 345.
    The defendant traced a successive chain of title up to and including the judgment and decree in 1867 — the foreclosure of the mortgage, which is as far as he ought be required to go in his chain of title. Nevertheless he has also traced his chain of title back to and including the judgment and decree in 1864, under which the entailed estate was sold upon the application of Mrs. Ream.
    Defendant could rely upon either or both as his source of title. The plaintiffs have shown no title in anyone unless in the defendant. 41 Ills., 516; Newell on Ejectment, 487; Free. Void Jud. Shies, Sec. 1.
    It is not contended that the rights of the defendant are not those of an innocent purchaser in good faith, for full value, and without any notice of any . defect either in the law or the court. He was bound to look to the record, but no further. Newell on Ej., 492, 493; 27 Penn. St., 172; Rorer on Jud. Sales, 171; 22 Howard U. S., 14; 42 Ala., 462; 31 Ind., 444; 47 Ills., 227; 26 Ills., 179.
    Where remaindermen are before the court by representation, they are bound by the judgment of the court. 151 Ills., 500; 172 Ills., 349.
    A sale by a life tenant against the remaindermen is at most but erroneous, and valid until reversed by direct proceeding. 8 O. C. C. Rep., 694; 33 Cal., 45.
    Sale by a trustee appointed by the court, is a judicial sale, and binds all parties to the cause. Rorer on Jud. Sales, sections 1-164.
    The mother, it must be admitted, pursued the better remedy in the interest of her children. She could have gone into the probate court as guardian and sold the property, and used all the proceeds for the support and maintenance of her children; but she preferred to save her children the principal for future uses, and expended very little more than the income thereof in their care. It is somewhat analogous to the case reported in 3 Hist. Col. App. Cases, 149, 161,162 and 163.
    Where a statute is merely directory in defining the course to be pursued, if the court has by law jurisdiction of the subject matter of the action, and jurisdiction of the defendant actually attaching in some manner, according to law, and such jurisdiction has been exercised by the court by adjudication, order, or decree, then by intendment of law all questions in regard to such statutory requirements and as to questions necessary to be adjudicated in arriving at the conclusion necessary to be attained, are put to rest by the decision of the court, and are binding as res adjudicata until reversed for error or set aside by a direct proceeding. Newell on Ejectment, 495; 1 Wall., 627; 31 Atl. Rep., 1097; 37 Ohio St., 147; 7 Johns. Ch. Rep., 386.
    If a sale is voidable or irregular, but not void, none but the parties to the proceeding can question it, and then only, in the same case, in the same court, or by appeal or writ of error. 51 Ills., 473; 35 Ohio St., 387.
    In Ohio, if a court of general jurisdiction has jurisdiction of the subject matter of the action it acquires jurisdiction of the parties by their consent. 2 Ohio St., 223; 3 McLean U. S., 587; 6 Tex., 379; 77 N. C., 300; 13 Ills., 432; 7 Cal., 584; 48 Ark., 151.
    A subsisting judgment, though afterwards reversed is a sufficient justification for all acts done under it. Free, on Judg., section 482; 14 Ohio St, 349.
    A judgment against an infant is not void. Free, on Judg., sections 151, 513.
    He cannot impeach it so as to prejudice a bona fide purchaser without notice. 31 Cal., 273 ; 30 Ind., 574; 1 Sand. Ch., 103; 2 Sch. & L., 575.
    Strictly speaking, a sale by order of a court of competent jurisdiction, and title derived therefrom, is not void, unless it is incapable of ratification or confirmation. 72 N. W., 697.
    If jurisdiction is conferred by law, it is sufficient as to the subject matter. 6 Paige Cr. (N. Y.), 95; 20 How. U. S., 541; Newell on Ejectment, 448.
    He had a right to rely upon the record of the court, because; 85 U. S. (18 Wall.), 350; 4 Tex., 162; 10 R. I., 112; 79 Ills., 328; 24 How. U. S., 195; 8 Cow. ( N. Y.), 292; 172 Ills., 361; 173 Ills., 571.
    The character of the estate itself shows the necessity for its sale. It was small and profitless. An investment was necessary to protect it for the maintenance of the widow and minor children. Rorer on Jud. Sales, section 178; 29 Ills., 201; 68 Ills., 588.
    The presumption of law is of the entire regularity of these proceedings by the long acquiescence of the heirs at law. 1 Hill, 131; 22 Am. & Enq., Ency. of Law, 161; 161 Ills., 76.
    Accordingly the presumption will be indulged after twenty years in favor of judicial tribunal acting within its jurisdiction, that all persons had due notice of the proceedings. 1 Greenl. Ev., sections 19, 84; 83 Ala., 528.
    In the case at bar-more than twenty-seven years have elapsed since the decree in foreclosure was rendered and more than thirty since the original decree, in 1864.
    No party plaintiffs appeared in this case either to verify pleadings or give evidence. The question then arises, are the plaintiffs to be deemed as having waived irregularity, if any, in the original decree and sale. Infancy is a personal plea which may be waived. Free, on Judg., section 151.
    Where parties equally under the control of both parties, are not called upon to testify, ordinarily will afford no ground for presumption against either. But where they are peculiarly under the control of one of the parties, the rule is different. 150 Mo., 196; 27 Conn., 318.
    A party’s failure to testify is a pregnant circumstance against him. 130 Mo., 200.
    Infancy is a personal privilege which may, and can be waived. Their silence in this case is deserving the consideration of the court. They have said nothing. 30 Ind., 374.
    If a general guardian appear in court for the minors and file defective pleadings in their behalf, it could only go to the regularity of ths proceedings. The minors being in court by their general guardian, would be bound by the decree of court until reversed, and it would not be necessary to appoint a guardian ad litem for the infants. 21 Ohio St., 651; 1 Hill, 131; 26 Ohio St., 636.
    Upon a petition by an administrator to sell the estate of a decedent, such administrator being also guardian of the minor children of such decedent, he filed on behalf of his wards his written assent thereto, which order was granted without further notice to such heirs. Held, such order of sale cannot be collaterally impeached. 72 Ind., 586.
    Such proceeding is final if it be free from fraud. 67 Ind., 287.
    Is the statute of limitations applicable here, in view of the special statutory proceedings under which the entailed estate was sold. 2. S & C., 944; Rev. Stat. sections 4977, 4978.
    The right of action, if any accrued, was from the time of the right of entry, because from that time others are ousted from all claims. And the extent of the estate conveyed characterizes the entry. 70 Fed. Rep., 539, and cases cited; 67 N. W. Rep., 902.
    It is admitted, however, in the record that the plaintiffs have not been in possession of the property described since the sale of said property in 1864. And there is no showing that they, or those under whom they claim, ever were in possession of said premises. It is also admitted that the defendant, Charles J. Wolls, and his predecessors in title, have been in possession of said property from the date of sale in 1864, down to the present time. His title ought now be regarded to be complete as an adverse occupant. 68 N. W. Rep., 494; 50 Ohio St., 1; 49 Ohio St., 137; 37 Ohio St., 583; 6 Hill, 177.
    Courts of record, in Ohio, having authority over the subject matter, are competent to decide upon their own jurisdiction, and to exercise it to final judgment without setting forth upon their records the facts and evidence upon which their decision is based. Their records are absolute verities, not to be impugned by averment or proof to the contrary. By the great weight of authority this rule appears to be general throughout the country, and it must be conceded to be the rule in England. 2 How. U. S., 319; 2 B. & Ad., 367; 1 Lev., 309; Cm. Jac., 244.
   Minshall, J.

The suit below was commenced by Sarah J. Beam and others to recover possession of certain described lands from the defendant, Charles J. Wolls, claiming to be the owner thereof, and that the defendant unlawfully deprives them of the possession. The defendant answered denying the title of the plaintiffs and pleading the statute of limitations; and, as a distinct defense, relies upon a sale of the land made in 1864, under the act of 1859, authorizing the sale or lease of estates tail in certain cases; from the purchaser at which sale, he, by intermediate conveyances, derives title to the land in question. The principal, and I may say, the only real question in the case, arises upon the validity of the sale made under this statute. The cause, on the issues joined, was tried to the court, a jury being waived. The court found for the plaintffs and rendered judgment in their favor, after a motion for a new trial had been made and overruled. The defendant took a bill of exceptions containing all the evidence, which was made a part of the record. On error the circuit court reversed the judgment. The principal error relied on, and for which the circuit court reversed the judgment is, that the common pleas erred, in holding the proceedings for the sale of the entailed estate void.

The facts material to a determination of the case are not in dispute: In 1854 Jonathan Ream, the father of the plaintiff, Sarah J. Ream, and grandfather of the other plaintiffs, died testate, seized in fee of the premises in controversy. By his will he left a life estate in the land to his widow, Sarah T. Ream, and the remainder in fee to his children, the survivors and representatives of whom are these plaintiffs. In his will he named his wife executrix of his will and guardian of his children. The will was admitted to probate February 1, 1855, and Sarah T. Ream was by the probate court appointed guardian of her children and qualified as such. In April, 1864, Sarah T. Ream, the life tenant, commenced an action in the court of common pleas of Franklin county to sell the land, her life estate and the remainder of the children, ostensibly under the act of 1859, 1 S. & C., 550; and in that action the premises were sold. At the time of the commencement of the action, and at the sale, two of the children, Nancy A. Ream and Sarah J. Ream, were minors under 14 years of age, the other children having died without issue, or their place of residence being unknown. The plaintiff in the action, as guardian of Nancy A. and Sarah J. Ream, entered their appearance to the action, waived process and consented to the sale. Notice of the pendency of the action was served on the minors in Butler county, Ohio. No guardian ad litem was appointed, and no answer was filed by or for them. The reason for the sale was stated to be, that it would be for the benefit of the petitioner, and do no substantial injury to the remaindermen. In August, 1864, the premises were sold, and the defendant, as before stated, claims title through the purchaser at that sale. Sarah T. Ream, the life tenant, died in September, 1890, and this suit was commenced February 5, 1891.

We are of the opinion that the judgment of the circuit court should be reversed. There was no authority for the court to make the order under which the sale was made. Ostensibly the sale was ordered in a proceeding under the act of 1859, providing for the sale or lease of estates tail in certain cases, 1 S. & C., 550. But the estate in this case was created before that act took effect, and can derive no aid whatever from it. It stands as if such statute had never been passed. Gilpin v. Williams, 25 Ohio St., 283. It was here held that the statute is not a remedial one, and to give it a retroactive effect on existing estates would impair vested estates in remainder and reversion, and hence impair the right of private property, which, under our constitution, cannot be done. We suppose that no one would assert that, prior to the enactment of the statute, a vested remainder could, at the suit of the life tenant, have been divested by the judgment of a court, simply for the purpose of making a better investment for that tenant, although it would work no substantial injury to the remaindermen. Whether it would or would not be to the injury of the latter estate, is not the question. In Gilpin v. Williams, McIlvaine, J., in replying to the suggestion that it would be no injury to the owner of the future estate, that it would simply change it in kind, and when so changed would remain to the same uses, said: “The suggestion is of no avail. The proceeding seeks to divest them (the remaindermen) of their estate in the land; and it is that estate, their property in the land, which is declared to be inviolate;”, and further, that “to enforce a sale would be nothing more and nothing less than the appropriation of the estate of one person for the benefit of another.”

The statute then, having no application to the case, the court had no jurisdiction of the subject matter, and the judgment rendered in the premises was no judgment at all, and furnished no authority for the sale. The jurisdiction the court had, was a special one, conferred on it by statute, and limited by the constitution and judicial construction, to estates created after the statute took effect; hence, as the estates in this case had been created before its adoption, the court had no jurisdiction of the subject of the suit, and what was done may be collaterally attacked.

But it is argued that this sale is to be regarded as one made by the consent of the parties, because it appears that the petitioner, the life tenant, was the guardian of the minor children, and that she consented for them, and that the plaintiffs below are simply one of these children and the children of the deceased one. It might be a sufficient answer to this to say, that consent never confers jurisdiction over the subject matter of a suit; so that any order or judgment made by the court in that proceeding could not be given the effect of a judicial order or judgment. It has no other or greater effect than if the parties had referred the question of a sale to the judge as an individual, and he had given it as his opinion that a sale would be proper and might be made. Still as parties may be bound by consent, where they would not otherwise be bound, it is proper to inquire what sort of consent was given in this case. The parties against whom this claim is made were minors at the time, of tender years. Their mother was their guardian and instituted the suit in her own interest for the sale. No guardians ad litem were appointed. The record simply shows that she consented for them. It is claimed that she had the power to do this under the fourth section of the act. Power is there given to testamentary guardians and those appointed by the probate court to do so. But it does not follow from this that a guardian may assent for his ward in a proceeding commenced by himself and in his own interest, and, necessarily, as in this case, occupies a position ad-adverse to his ward. It would seem, on principle, that, in such case, to warrant a guardian to consent for his ward, his interest should not be opposed to his duty, as it clearly is, where the proceding is commenced by the guardian in his own interest as tenant of the life estate. But the most effective answer that can be given to this is, that the section referred to only applies to proceedings commenced for the sale of estates created after the statute took effect; and can in no way aid such as were had for the sale of previously existing estates.

As to tlie plea of the statute of limitations, it is only necessary to observe that the estate of the life tenant did not terminate until 1890, and the suit was commenced in a short while thereafter.

Judgment reversed and common pleas affirmed.  