
    Margaret Matthews v. William S. Rector et al.
    1. In an action to recover the possession of land, by a person holding a patent from the United States, based on an equitable right acquired by the entry of the land on a military warrant, such person can not recover where it appears that the defendant is in possession under a tax title, and that his right to the land after the tax sale, and before the issuing of the patent, was fixed by the deeree of a court of competent jurisdiction against the person making the entry, under whom, as heir, the plaintiff obtained the patent.
    2. In such case the naked legal title remains in the United States, in trust for the person holding such equitable right to the land, and when the patent issues, it inures, in equity, to the benefit of the holder of such equitable right.
    Motion for leave to file a petition in error to the District Court of Pickaway county.
    On the 24th day of July, 1805, Alexander Gibson, who was the assignee in a direct line of George Turner, a soldier of the Virginia line, entered 100 acres of land, situate in the county of Pickaway, on a military land-warrant (No. 4,417), issued to George Turner for military services. On the 31st day of December, 1827, the tract of land having theretofore been entered on the duplicate of the county for taxation, became delinquent, and was sold, at a delinquent tax sale, by the auditor of the county, to Guy W. Doan, who immediately thereafter took possession of the same.
    At the October term, 1834, of the Court of Common Pleas of Pickaway county, on a bill in chancery, filed on the 1st day of May, in the year last aforesaid, by Guy W. Doan against Alexander Gibson, to quiet the title to the tract of land, of the pendency and prayer of which, Alexander Gibson, not then being a resident of this state, was; notified, by order of the court, by publication, in accordance with the statute, Guy W. Doan, by the consideration and judgment of the court, obtained a deeree against Alexander Gibson, to pay to Guy "W. Doan, in forty days from the rising of the court; the moneys expended by him in purchasing the tract of land, with interest and penalty thereon, amounting to the sum of $20.75, together with costs of suit, and, in defaultthereof, that Alexander Gibson release to Guy W.Doan, his heirs or assigns, all the right, title, and interest which he might have or claim to the land ; and, in the event that such release should not be duly executed and delivered, at the expiration of the forty days, that the decree operate to release to Guy W. Doan all the right, title, and interest which Alexander Gibson might have or set up to the land. This decree now remains, and is in full force and effect.
    The land was surveyed on the 30th day of May, 1834, and, on the 2d day of October, 1872, a patent issued therefor to Margaret Matthews, the present plaintiff, as the daughter and only heir at law of Alexander Gibson, who died intestate in Marion county, Iudiana, in March, 1837, leaving five children, all of whom, except the plaintiff and Mrs. Nancy Yorke, have since died, leaving children.
    On the 12th day of October, 1872, the plaintiff commenced an action, in the Court of Common Pleas of Pick-away county, against Rector and Ziegler, who were in possession of the land, to recover the same.
    The defendants, among other grounds of defense, set up the proceedings in and decree of the court, and the possession of Doan under it; and, as the grantees of Doan, relied upon the title thus acquired by Doan. To which the plaintiff replied, that the Court of Common Pleas rendering the decree had no jurisdiction either of the subject-matter of Doan’s bill, or of the person of the defendant, Gibson.
    On the trial of the action, the Court of Common Pleas found this issue for the defendants, and, after overruling a motion of the plaintiff'for a new trial, which was excepted to by the plaintiffj entered judgment for the defendants for costs.
    The judgment of the Court of Common Pleas was afterward affirmed by the District Court on error, and excepted "to by tbe plaintiff, and the affirmance by the District Court, of the judgment of the Court of Common Pleas, is 'now assigned for error in this court.
    
      Jeremiah Hall, for plaintiff in error:
    At the time Doan purchased the land for taxes, and filed his bill, the location stood upon entry merely. A mere entry of land is not subj ect to assessment for taxes. Chase, 419, sec. 24; Ib. 541, sec. 35; Railway Co. v. Prescott, 16 Wall. 603, 607.
    The decree is a mere release, and does not estop the plaintiff from asserting an after-acquired title, any more ■than a deed of release merely, or a tax deed'. Herman on "the Law of Estoppel, secs. 262, 294. ■
    Gibson had no interest in the land ; he had a mere entry of the land, not amounting to a vested' equity. This was •all he had. He could not call upon the government for a patent, for a mere entry does not entitle the locator to a patent, and is no interest in the land. Reed et al. v. McGrew, 5 Ohio, 385.
    The statute (Chase, 1692) directing the mode of proceeding in chancery did not give to the court, in the case •of Doan’s bill, jurisdiction of the subject-matter or of the person of the defendant, Gibson. Gibson was before the ■court, in that case, in no other way than by publication in a newspaper.
    At common law there is no such thing as serving a defendant in an action by publication.
    If Gibson was before the court so as to be concluded by the judgment for any purpose, then the statute must have authorized the service by publication, in the matter of Doan’s bill. But it did not. Therefore, there was no action legally pending in said court, between said Doan, as plaintiff, and Gibson, as defendant; and the proceedings and judgment of the court were therefore void.
    In the case of Doan’s bill, the court made an order of publication of notice to the defendant, Gibson, of the pend-ency of the bill. This the court were authorized to do only in a ease to be stated in the bill, as in. section II of said statute. We submit that the bill does not state a case under that section; and, such being the case, the court had no authority to make an order of publication. The decree was therefore made without notice. The court had no-jurisdiction, and the decree was merely void. Hollingsworth v. Barbour, 4 Pet. 466.
    The right to sell land for delinquent taxes is a legal' right. It is only given by statute. It is like the right of an administrator to-sell the lands of his intestate; and if he-sells them under a defective order of the court, the purchaser can not be aided in equity: Chancery may aid a deed, rendered inoperative by accident or mistake, when the-grantor had power to convey ; but it can not supply a want of power, Tiernan v. Beam et al., 2 Ohio, 283.
    The bill of Doan against Gibson is not the case of Rennick v. Wallace, 8 Ohio, 539, nor of Douglas v. Dangerfield, 10 Ohio, 152.
    
      Smith &; Harst, for defendants in error:
    Gibson was living at the time of the rendition of the decree in favor of Doan against him. This fact is decisive of this case. This decree was admitted in evidence without objection, and is a complete bar to all claim of Gibson, or to the plaintiff, who claims under or through him. Buchanan v. Roy’s Lessees, 2 Ohio St. 251.
    Doan bought this land for taxes December 31,1827; went, into immediate possession, and was in possession at the time of the bringing of the action against Gibson. This gave Doan the legal title. Gwynne v. Niswanger, 20 Ohio, 556,
    . The decree could not be collaterally impeached. Lessee of Fowler v. Whiteman, 2 Ohio St. 270, 286, and eases there cited; Bigelow v. Bigelow, 4 Ohio, 138.
    As a general rule, a fact which has been directly tried and decided by a court of competent jurisdiction, can not be contested again between the same parties in the same or $ny other court. .In this, there is and ought to be no difference between a verdict and judgment in a court of common law and a decree in a court of equity. 6 Wheat. 109; 1 Howard, 134; 12 Peters, 492.
    A judgment, however erroneous, or however summary,, if rendered by a competent tribunal, can not be treated as a nullity (Buell v. Cross, 4 Ohio, 327; Weyer v. Zane, 3 Ohio, 305; Douglas v. McCoy, 5 Ohio, 522; Foster v. Dugan, 8 Ohio, 107; Adam v. Jeffries, 12 Ohio, 272); but is voidable only. 2 Peters, 163; 10 Peters, 450, 472; 15 Ohio, 447; 20 Ohio, 556.
    The statute (3 Chase, 1697) under which the suit of Doan against Gibson was brought, was complied with in every particular and therefore the decree is binding. 1 U. S. Eq. Dig. 280, and cases there cited; 2 S. & C. 1118, notes.
   Rex, J.

The first point in this case, to which the attention of the court is directed by the arguments of counsel, is made by the reply of the plaintiff to the answer of the defendants, setting up the decree obtained by Doan against Gibson as a defense to the plaintiff’s action. The land, the title to which was the subject-matter of that action, is situate in Pickaway county, in this state, and at the time the-bill was filed and decree rendered, Gibson was not a resident of this state; and it is claimed, that as service could not be made upon the defendants in an action at common law, by publication, and as the statutes of this state then in force did not make provision for such service, the decree relied on is void.

Section 11 of the act of March 14, 1831, “ directing the-mode of proceeding in chancery,” provides, that “in cases where the title to or boundaries of land, or contracts concerning lands or tenements, are drawn in question in chancery, and any or all of the defendants are non-residents of the state, suit may be prosecuted in any county where the land lies, and the court shall direct the manner of giving notice to the absent defendants.”

The record of the case of Doan v. Gibson, which is made part of the bill of exceptions in this case, shows that, at the May term, 1834, of the Court of Common Pleas of Pickaway county, the court, on motion of the complainant, ordered that notice be given to the defendant, Gibson, of the pendency of the action, and the substance and prayer of the bill, by publication in the Circleville Herald, a newspaper printed in Pickaway county, for six consecutive weeks, and that at the succeeding July term of the court, proof was made of the publication of-the notice in the manner and for the time ordered. It must therefore be conceded, that at the succeeding October term of the court, when the decree relied upon as a defense in the present action was entered, the court rendering it had jurisdiction of the •subject-matter of the suit, and of the defendant.

It is also claimed, that at the time the land was sold to Uo.an, it was not subject to assessment for taxation, and hence the decree is void. The premise might be conceded, .and -yet in nowise affect the validity of the decree as a defense to this action. If a defense of that kind existed, it should have been interposed at the time the suit of Doan v. Gibson was pending. If, by reason of lapse of time or any other cause, no proceedings can now be had to reverse the decree, it can not be declared a nullity by any authority of law. All irregularities which preceded the decree are cured by it, and so long as it remains unreversed, it is conclusive .against Gibson and all parties claiming under him.

The court rendering the decree was a court of general jurisdiction, and there is no principle of law better settled, than that every act of a court of competent jurisdiction shall be presumed to have been rightly done, until the contrary .appears. This rule applies as well to every order, judgment, or decree, rendered in the various stages of their proceedings, as to their adjudication that the plaintiff has a right of action. 10 Peters, 449; Lessee of Boswell v. Sharp, 15 Ohio, 466; Lessee of Irvin v. Smith, Ib. 242; Lessee of Newman v. City of Cincinnati, 18 Ohio, 330; Lessee of Morgan v. Burnet, Ib. 546; Lessee of Fowler et al. v. Whiteman, 2 Ohio St. 270.

It is suggested by counsel for the plaintiff'that the decree is a mere release, and does not estop the' plaintiff from-, asserting her after-acquired title, any more than a deed of release merely, or a tax deed. Is this true when viewed in-the light of the decisions of this court? In the opinion-of the court, in the case of Gwynne v. Niswanger, 20 Ohio, 556, delivered by Caldwell, J., it was held “that a person-holding under a purchase from the government, can hold nothing but an equitable title until the patent issues, because he can not trace his title to any original source; but-if the land be sold for taxes while his right is a mere equitable one, he can not reclaim it, although he afterward obtain a patent from the United States.” .

In this case, Gibson, who'was the assignee of, and entered, the land on a military land-warrant issued to George Turner, had an equitable right to the land, and the United States held the naked legal title in trust for him. Doan,, by his purchase, and the decree of the court, acquired the-same right to the land that Gibson had, up to the time of the sale for taxes, and upon the acquisition of this right,, the naked legal title was held in trust for him by the United States. The patent afterward acquired by the plaintiffj founded upon the equitable right of her father,, must therefore inure in equity to the benefit of the defendants, who are the grantees of Doan, and can not be made available by her, against the defendants, to recover the-possession of the land.

Motion overruled.

Dav, C. J., McIlvaine and White, JJ., coneurring.. Welch, J., not sitting.  