
    Elliott v. Plattor.
    
      Service — Summons—Revised Statutes, sections 0354 and 5357 — Judgment— Mistake of clerk — Correction—Notice- of -proceeding — -Waiver—Mistake question of fact — Nunc pro tunc order — Exchange of lands— Mortgage part of purchase-money — Vendor’s lien — Waiver—Do-wer.
    1. A summons against A. and B., who were husband and wife, was returned indorsed: “ Served the same by leaving at each of the within named defendant’s . . . usual place of residence, a certified copy of the within summons, etc. Sheriff’s fees: Service, 45, copies, 50, etc.;” show's a good service upon each defendant.
    2. A motion to confirm a sheriff’s sale was granted and the sale confirmed, but, hy mistake, the judge noted on the court docket that the motion was refused, and this note misled the clerk and induced him to make a like entry on tho journal of the court. Held, that this was a mistake of the clerk as well as of the judge, which may he corrected, under section 5354, sub. 3, of the Revised Statutes.
    3. In proceedings under section 5357 to correct such a mistake, w'lien the adverse party appears and defends, the notice required by tnat section is vaived.
    4. Whether there was a mistake made, is a question or fact to he determined by the court upon competent evidence; and the papers in the case, the recollection of the judge who rendered the decision, in connection with that of others who heard the decision announced, as well as the minutes made by him, are competent evidence.
    5. The court, in making a correction, may, by nunc pro tunc order, make it as of the term when the mistake was made, if there are no intervening rights or equities.
    6. P. and'E. exchanged real estate. P. paid $300 and conveyed hy warranty deed and in fee, to E., lot No. 2. In consideration therefor, E. conveyed by like deed lot No. 49, and also agreed so pay off and discharge certain mortgages on lot No. 49, and executed a mortgage back to P. on lot No 2, to secure such payment by him, and to save P. harmless from said mortgages. Each put the other in possession, but E. failed to satisfy said mortgages, and P. was compelled to pay the same, to save his property. Held, that the amount necessary to satisfy said mortgages was a part of the purchase-money of lot No. 2, .for which P. could assert an equitable lien thereon, on failure of E. to pay the same.
    7. P., by taking a mortgage to secure the payment by E. of this part of the consideration, did not thereby waive his vendor’s lien on lot No. 2; nor was the covenant to pay said mortgages, nor the mortgage by E. to secure such payment, a substituted security, which defeated the vendor’s lien as between the parties.
    8. As the conveyances of lot No. 2 and the mortgage back to secure the payment of this part of the purchase-money, were simultaneous acts, and parts of the same transaction, the wife of E. had no inchoate right of dower superior to P.'s equitable lien. ■
    Error to the District Court of Defiance county.
    Hannah S. Plattor, plaintiff below, brought her action against Elliott and wife, seeking to assert a vendor’s lien against a certain lot No. 2, in the town of Defiance, and to foreclose a mortgage thereon executed by Elliott alone. It appears from the petition that Mrs. Plattor owned said lot No. 2, and Elliott lot No. 49, in Defiance ; that in 1876 they exchanged lots, Mrs. Plattor paying a difference of $300; that each conveyed to the other by deed of general warranty the respective lots, which was accompanied by an exchange of possession, thus vesting the title and possession of lot No. 2 in Elliott, and of lot No. 49 in Mrs. Plattor.
    At the same time Elliott, his wife not joining, as part consideration, executed back to Mrs. Plattor a mortgage to secure and save her harmless from certain mortgage liens upon lot No. 49, so conveyed to Mrs. Plattor, and therein bouud himself to pay off said mortgages.
    Elliott did not perform the condition, and Mrs. Plattor was compelled, in order to save her property, to pay off the prior mortgages on lot No. 49.
    The prayer is, that the amounts thus paid be ascertained; that they be declared a vendor’s lien on lot No. 2, and that the mortgage be foreclosed, etc.
    Some further averments are made touching the contract of exchange, the liens, etc., not necessary to be stated in detail.
    The summons issued against Simon Elliott and Mary Elliott was returned indorsed as follows : “ Received this writ August 30, 1881, and on the 2d of September, 1881, I served the same by leaving at each of the within named defendants’ (Simon Elliott and Mary Elliott) usual place of residence, a certified copy of the within summons and all indorsements thereon. Sheriff’s fees: service, 45; copies, 50; mileage, 32 = $1.27.”
    No answer was filed, and at September term, 1881, a judgment as upon default was rendered as prayed for, finding the amount due plaintiff, being made up of the several amounts paid by plaintiff to free said lot No. 49 from incumbrances. It was also adjudged that for these amounts the plaintiff had a vendor’s lien, being part of the consideration or purchase-money, which said Elliott had agreed to pay for said lot No. 2. The judgment further ordered the sale of the property under said indemnity mortgage and to satisfy such vendor’s lien free of Mrs. Elliott’s inchoate dower.
    A sale was. made, Mrs. Plattor being the purchaser. Before sale Mrs. Elliott demanded a homestead to be set off by the sheriff, which was refused.
    At the next term of the court, April, 1882, plaintiff filed a motion to confirm the sale and Mrs. Elliott a motion to set the same aside, the latter on the ground that the property was the homestead of herself.and minor children, which should have been set off to her.
    These motions were heard at the same terra, and the journal entry shows this motion was sustained, and the sale was set aside and motion to confirm overruled. No exception was noted on the journal by either party to this action.
    At the September term, 1882, the plaintiff filed a motion to set aside and vacate the judgment made on said motions, and correct the same, and to make a nunc fro iunc order for that purpose, to the effect that the motion to set aside the sale was overruled instead of sustained, and that the motion to confirm was granted instead, of overruled. In support of this motion, it is alleged that in fact the motion to set aside was overruled and to confirm was sustained and sale confirmed, but the clerk, by mistake and misunderstanding of the order of the court, entered upon the jour^ nal orders directly contrary to the action of the court on said motions. On the hearing of this motion for a nunc pro tunc order, a bill of exceptions was taken, showing that the defendant, Mary A. Elliott, gave in evidence the court docket entries, showing that the motion to confirm had been overruled, and the motion to set aside had been allowed, just as appears in the journal entries sought to be corrected, and that Mrs. Elliott had excepted to the action of the court on both motions. It also appears by this bill of exceptions that all the evidence upon the hearing of the motion for this nunc pro tunc order consisted of said docket entries, “the unsworn statements of counsel at the hearing, and the knowledge and recollection of the presiding judge as to what order the court intended to make at the prior term.”
    Acting upon this evidence the journal was corrected so as to show a confirmation of the sale and the overruling of the motion to set the same aside, which was entered as of the former term.
    At the same time a bill of exceptions was taken by said Mary A. Elliott to the overruling of her motion to set the sale aside, for the reason that the homestead was not set off to her, which was also allowed to bo filed as of the former term.
    From this bill it appears that this motion was heard upon the following agreed statement of facts: “That the said Mary A. Elliott was at the time of said sale and still is the wife of said Simon Elliott, and had by him three children, the oldest about the age of twelve years, and that on the day of said sale said Mary and Simon were not living together as husband and wife; that shortly prior to said sale she had gone with her children to her father’s in a county in the eastern part of the state, where they had been sinee then and at the time of the hearing of these motions, remaining, hut whether residing there temporarily or permanently did not appear and was not agreed upon ; that the said other defendant, Simon Elliott, with several minor children by a former wife, was at the time of said sale and ever since residing on said premises as their homestead.” It. also appeared on such hearing that before the sale Mrs. Elliott had, by her attorneys, demanded of the sheriff that a homestead be set off to her, which was refused.
    On error to the district court the judgment of the common pleas was affirmed. This proceeding in error is to reverse the judgment of both of said courts.
    The errors specially pointed out and relied on are:
    1. The court acquired no jurisdiction over the person of said Mary A. Elliott.
    2. It had no power to make the nunc pro tunc order, based upon the facts stated in the bill of exceptions.
    3. Upon the facts agreed upon, the court erred in not allowing Mrs. Elliott a homestead.
    4. In ordering the land sold free from the inchoate right of dower of Mrs Elliott.
    
      Newbegin ‡ Kingsbury, for plaintiffs in error.
    I. The clerk entered the judgment that was intended to have been entered by the court as minuted on his docket. There is no proof of any mistake whatever. It w'as not competent for the court to change the record from the memory of the judge. But if competent for the court at a subsequent term to vacate this order at all, it could not vacate it until there was a finding of the court: 1st. That there was a mistake; and, 2d. That upon the facts of the whole case the plaintiff' was entitled to the remedy moved for, that is, to have this decree vacated and to have the sale confirmed. Now, before the court could have found this, they must have found further, that Mary A. Elliott and her family were not entitled to homestead in these premises, and they must have found that there was a valid judgment against her. If the judgment was erroneous in any form bo that the defendant below, Mary A. Elliott, was entitled to have it set aside, then this sale should not have been confirmed, and this court must find, without reference to her right of homestead in the premises, that the judgment was erroneous in barring her of all right of dower therein. • Watson v. Paine, 25 Ohio St. 340; Huntington v. Pinch, 3 Ohio St. 445.
    As to finding that homestead should not have been assigned before the order could be- vacated, see Hettrick v. Wilson, 12 Ohio St. 136. Says the court: “Nor is there any finding or adjudication by the.court that the plaintiff had a valid cause of action.” This case governs also as to requirement of notice.
    The case of Lambert v. Mustard, 18 Ohio St. 419, does not change this principle, as in that case testimony was heard.
    
    The general doctrine respecting amendments of judgments and orders at a subsequent term of court, nunc pro tune, is that they must be made from something appearing of record, or quasi record; that is, something from which records can be made, as journal entries, etc. Bruce v. Strickland, 47 Ala. 192; Priest v. McMaster, 52 Mo. 60; Robinson v. Brown, 82 Ill. 279; Harpending v. Wylie, 13 Bush (Ky.) 158; Miller v. Chandler, 29 La. Ann. 88; Burns v. Edgefield, 3 Tenn. Ch. 137.
    Such amendment can not be made from the minutes of the judge on the docket: Markward v. Doriat, 21 Ohio St. 637; nor from opinion of the court on motion for new trial: Cathcart v. Commonwealth, 37 Pa. St. 445; nor can it be made from a memoranda, nor from the memory of a judge: Boon v. Boon, 8 Smedes & Marshall, 318.
    But if testimony is permitted in these eases it must be shown that testimony was heard, considered, and the amendment made in accordance with the testimony thus heard; nothing of which appears in this ease. There is no pretense that there is any amendment by any thing of record, nor is therf any statement that any testimony was heard. Murphy v. Swadner, 34 Ohio St. 672. It can not be made from the minutes of the judge’s docket, much less against them, as in this case. Markward v. Doriat, supra. That there must be evidence heard as a basis for an order nunc pro tunc, see 37 Ohio St. 147, and cases cited in brief of Gilmore, counsel; also 40 Ohio St. 110.
    II. The order setting aside the sale and overruling the motion to confirm the sale as first made at April term was right, and if the proper order and ruling was made by the court at thefirst term, no matter whether it was made under mistake or not, it could not and should not afterward be set aside. Murphy v. Swadner, supra. There must have been error to the substantial prejudice of a party before a judgment can be set aside.
    III. But there is no valid judgment here against either of the plaintiffs in error; neither of them ever appeared and neither of them had any legal service to appear. The court then never acquired any jurisdiction over them or either of them. The return of the sheriff is that he served.the summons “by leaving at each of the within named defendants’ (Simon Elliott and Mary Elliott) usual place of residence, a certified copy of-the within summons and all the indorsements thereon.”
    We submit that the only construction that can be put upon this is, that he left one copy at the residence of these defendants. It appears in the body of the petition as well as in the title that Mary A. Elliott was the wife of Simon Elliott. The return, in substance, says a copy was left at the usual place of residence of these defendants. Now, as we have said, unless the contrary appears, the residence of the wife is the residence of the husband. This toas no service; the law requires that service shall be made by “leaving a copy at his usual place of residence,” i. e. the residence of each defendant. Revised Statutes, sec. 5042.
    A summons for three defendants returned “served by leaving a copy of this writ at the residence of the within named defendant,” held good as to neither. Gamble v. Warner, 16 Ohio, 371.
    These defendants had but one residence; hence there was but one copy left for both, and neither was served. It follows, therefore, that there being no valid decree for a sale of these premises, even as against Elliott, the husband, the sale was properly set aside, and the order setting it aside should not have been vacated at a subsequent term. Kelam v. Toms, 38 Wis. 592; Blackburn v. Sweet, id. 578 ; Likens v. McCormick, 39 Wis. 313; Richards v. Sperry, 7 Wis. 219 ; People v. Salazer (Cal.), 12 The Reporter 427.
    But the decree was erroneous in this, that it barred the wife, Mary A. Elliott, of right of dower. Eor this reason alone the sale was properly set aside on the second ground named in motion of Mrs. Elliott.
    
      N. G. Johnson, with whom was W. D. Hill, for defendant in error.
    If the orders óf a court are improperly made, the same court at a subsequent term may correct the same on motion, and vacate the same and order the entry made which should have been made. Rev. Stats., § 5354; Dial v. Holter, 6 Ohio St. 246; Hunt v. Yeatman, 3 Ohio, 15; Fowble v. Rayberg, 4 Ohio, 45; Reynolds v. Stansbury, 20 Ohio, 344; Botkin v. Pickaway Co., 1 Ohio, 375; Landon v. Reid, 10 Ohio, 202; 3 Ohio St. 508; 8 Ohio St. 204; 14 Ohio St. 468.
   Johnson, J.

1. Was-there a good service on Mrs. Elliott ? The return shows the service of two copies by leaving at each of the defendants usual place of residence a certified copy, etc.

Whether these defendants had separate places of residence, or the same place, the fair and reasonable interpretation of the return is, that each was served with a copy as required by the statute.

2. As to the power of the court to¡ correct a mistake of a former term and to make a nunc pro tunc order.

The motion to confirm the sale, made at the April term, had in fact been sustained and the sale confirmed. The motion to set the sale aside had in fact been overruled. Mrs. Elliott’s attorney was present defending against the former motion and prosecuting to the latter, and excepted to the action of the court on both motions.

By an error of the judge in noting his action on these motions, the. motion to confirm was noted on the court docket, “ motion overruled, defendant excepts,” and the! motion to set the sale aside was noted, “ motion allowed, defendant excepts.”

These exceptions by defendant show that the oral announcement by the court of its action were just the reverse of those noted on the judge’s minutes, or at least that the defendant’s counsel so understood them.

The defendant offered these minutes in evidence in her behalf, and can not now object to their competency, if they tend to prove that there was a mistake. In addition to the significance of these exceptions, noted in the minutes, the bill of exceptions shows that the court heard the unsworn statements of counsel, and all this evidence, and upon the knowledge and recollection of the judge who presided at the hearing of the former motions, as well as upon the hearing of this, found that the journal entry was a mistake, and made the order complained of, as of the former term. No objection was made to the court hearing unsworn statements of counsel at the hearing of this motion. A witness is competent to give evidence without being sworn, if the parties consent or waive the administration of the oath, as urns done in this case. Neither urns it error for the judge to act upon his own recollection of the facts, in connection with other like evidence tending to show the mistake in a case like this, wlfere there was no evidence other than the journal entry to show there was no mistake. Upon all the evidence in the case the court did not err in finding that there was a mistake, and in making a nunc pro tunc order confirming the sale.

It is claimed however, that this was not a “mistake, neglect, or omission, of the clerk, or irregularity in obtaining a judgment or order,” within the meaning of section 5354 Revised Statutes. In the first instance it was the mistake of the judge in making these notes on his minutes differing from the judgment the court had officially announced. The clerk, by following these minutes, instead of the judgment actually announced, adopted that mistake, and it became in fact and in law a mistake of the clerk as well as of the judge. It was a mistake made by both within the meaning of the statute. How the clerk was induced to enter a mistaken entry upon the journal is immaterial, if the entry was in fact a mistake.

3. Did the court err inhot allowing Mrs: Elliott’s de-. mand for a homestead, or rather in not setting aside the sale because the sheriff' had refused to allow and set one off to her ?

We think not. As she did not sign the mortgage, she was not precluded from making the demand of a homestead, if it was her home at the time.

The evidence shows that at the time of the sale she and her husband were not living together as man and wife; that shortly prior thereto she had taken her three minor children and gone to her father’s in the eastern part of the state, leaving her husband aud several minor children by a former marriage residing on the premises, and this state of separation continued when this motioii was heard, but whether this residence with her father was temporary or permanent did not appear.

Upon this state of facts, agreed upon by the parties, the motion to allow a homestead was overruled, and we think correctly.

It was admitted that Mrs. Elliott had left her home before demand and gone to a distant part of the state, and was not living on the premises with her husband as his wife at the time of sale, and continued to and was residing away for more than three months, having her owd children with her, and leaving her husband and his children by a former marriage residing in the homestead.

In this state of the case the burden was upon her to show that her removal was only temporary, with intention of returning.

In the absence of such proof, the admission that she was not living with her husband as his wife raises a presumption that was sufficient to warrant the court in finding against her until that presumption was removed.

4. Did the court err in ordering a sale of the land free of Mrs. Elliott’s inchoate right of dower ?

Elliott exchanged lot No. 49 for lot No. 2.

The terms of the exchange were-that Mrs. Plattor was to pay $300, and convey to Elliott lot No. 2 by warranty deed, and in consideration or payment Elliott was to convey to her lot No. 49, and pay off certain mortgage liens thereon.

Accordingly, Mrs. Plattor paid the $300, and conveyed to Elliott by deed of general warranty lot No. 2, aud put him in possession, and Elliott by like deed conveyed to her-lot No. 49, and executed a mortgage.on lot No. 2, binding himselfito lift certain mortgages on lot No. 49, and save her harmless therefrom. He failed to do this, and she was compelled to discharge these liens to save the property she had purchased. These conveyances were all part of the same transaction.

The conveyance of lot No. 49 and the payment and discharge of the liens thereon, were the agreed equivalent for the comuyance of lot No. 2 and the payment of $300.

Mrs. Plattor paid $300, and conveyed in fee lot No. 2, and took the title to lot No. 49 and a covenant from Elliott to pay off the liens thereon. A failure to perform this covenant was a failure to that extent, to pay the agreed equivalent or purchase price of land conveyed to the vendee.

The taking of the mortgage to secure this covenant was not the waiver of the vendor’s lien, if one existed.

It being a covenant to pay off these liens, as part of the consideration for the land deeded to him, it was a part of the purchase-money agreed to be paid in exchange of lands. In equity it was as much so as if he had agreed to pay that amount to his vendor directly, with which to pay off these liens.

The vendor’s lien is based upon the theory that it would be unconscionable that the vendee should hold the land and no+ pay for it, and therefore, as between vendor and vendee, the latter in equity holds the title, under a trust to pay what he had agreed as the price or purchase-money.

Unless the vendor has shown an intention by taking other security, equity will presume that the vendee holds the lands in trust to pay what he agreed to pay.

The mere giving of a bond, note, or covenant for the purchase-money will not discharge an equitable lien; yet, where other security is substituted for the consideration, and was, in fact, the thing bargained for, the lien is lost. 1 Lead. Cases in Eq. 319; McKillip v. McKillip, 8 Barb. 552.

Here, however, there was no substituted security. The mortgage on the same land was not a waiver of the vendor’s lien, nor was it taken in discharge of it.

D., X. & B. R. R. Co. v. Lewton, 20 Ohio St. 401, is directly in point. There L. granted a right of way to the railroad company, and in consideration, the latter was to pay $1,500 at á future day, and to construct certain crossings and cattle-guards upon L.’s land.

The company took possession and constructed its road. It was held, that L. had an equitable lien upon the property sold, as well for the damages for not constructing its road as agreed as for the purchase-money.

This court says (20 Ohio St. 411): “The judgment for damages for not constructing the road in the manner provided for in the contract, is as much the price of the interest sold to the railroad company, as was the $1,500 agreed to be paid in money. The only difference is that the amount of cash was ascertained and agreed upon by the parties,, while the amount of the damages was not ascertained until judgment. Both sums arose on contract, and constituted the • compensation the vendee was to return to the vendor for the interest purchased.”

So here,Elliott agreed in part payment to convey certain land, and in full payment to pay off’ certain liens thereon, known to the parties This amount was as much part of the compensation to be paid as if the promise had been to pay the vendor, as part of the purchase-money, a sum equal in amount to such liens.

The taking of a mortgage on the land conveyed to Elliott was not a substituted security, nor does it disclose any intention to waive the vendor’s lien.

Judgment affirmed.  