
    Lessee of Joshua H. Perry v. Charles S. Clarkson and others.
    Where proceedings were instituted by an administrator for the sale of land, and an order of sale granted under the act of 1795, and the sale was made ■ after the repe&l of that act by the act of 1805, such sale conferred no title upon the purchaser.
    This is an action of ejectment reserved in Hamilton county.
    The case comes before the court upon an agreed statement of facts. The plaintiff’s chaiu of title is as follows:
    1. Title and possession in Israel Ludlow.
    2. Deed of the administrators of Israel Ludlow to Joseph Tan Horne, signed and sealed in presence of two witnesses; dated March 25, 1807; acknowledged June 23, 1807, before John Ma-hard, J. P.; and recorded October 24, 1809. This deed purports to .convey the north half of the south third of the east half of section 19, township 3, fractional range 2, containing 53J acres.
    It purports to be made under the authority of the following record:
    “Administrators of Israel Ludlow, deceased, exhibit an account current of said estate. John Ludlow and James Findlay, two of the administrators sworn, and pray order to sell real estate to satisfy the debts, etc. Court grants the prayer of the administrators, excepting and reserving the farm and improved lands at Cincinnati, together with 'the ^houses and lots in Cincinnati ;” and recites a sale made in 1806.
    3. Deed of Joseph Tan Horne to Joel Williams, dated July 25, 1811.
    4. Deed of Joel Williams and Phebe, his wife, to Thomas Graham, dated September 1, 1813.
    5. Deed of Thomas Graham to George A. and Jacob Madeira, dated September 16, 1818.
    6. Deed of George A. and Jacob Madeira to James Nixon, dated June 12, 1820.
    7. Deed of James Dixon to John Adams, dated February 18, 1824.
    8. Deed of John Adams to Joshua H. Perry and Frederick W. Athearn, dated July 29, 1828.
    9. Deed of an undivided moiety from Athearn to said Perry.
    
      The defendants claim title under the heirs of Israel Ludlow, and are in possession. Their title is admitted to be good, unless the title of the heirs was divested by the sale made by the administrators as aforesaid ; by which sale, if valid, Tan Horne acquired title.
    If, upon the foregoing state of facts, the plaintiff’s lessee is entitled to a verdict, judgment is tobe entered accordingly; otherwise judgment is to be entered for the defendants.
    Stoker & G-wynne, for plaintiff.
    Chase & Ball, for defendants.
   Read, J.

The legal propositions arising upon the agreed state-

ment of facts in this case, have been settled by former decisions of this court.

The main proposition is this:

Will a sale, had on an order upon application of an administrator, under the act of 1795, and made after its repeal by the act of 1805, vest the purchaser with title?

*This depends upon the fact whether the administrator had power to sell at the time of sale.

If the power exist, it must result from the order, or have been, preserved by the saving clause of the repealing act of 1805. Under the ordinance of 1787, an administrator had no control over real estate until the adoption of the law of 1795. Lessee of Ludlow’s Heirs v. Johnson, 3 Ohio, 554.

Both these questions have been directly decided, and were the turning points in the case of Ludlow’s Lessee v. Wade, 5 Ohio, 596.

The court there decided, that the administrator’s power to sell, depended both upon the act of 1795 and the order of the court; and hence, that a repeal of the act destroyed the power, and that a sale made after such repeal on the order was void and conferred no title.

It was furthor decided that proceedings had on the part of an administrator, to obtain an order of sale under the act of 1795, was not a “ suit or prosecution” within the saving proviso of the act of 1805, which authorized “suits and prosecutions now ponding to bo carried on to final judgment and execution,” agreeably to the provisions of the laws repealed.

This decision was reaffirmed in the ease of Davis’ Lessee v. Livingston, 6 Ohio, 225, and also in tho case of Paine’s Lessee v. Skinner, 8 Ohio, 162.

We are not disposed to disturb these decisions. They wore made after much mature deliberation; and although it is matter of regret that administrators and purchasers should have acted on a misapprehension of the law, and that mischiefs have resulted from such mistakes, yet wo conceive that tho court have put a right construction upon the statutes, and that it was not in their judicial power to remedy the evil.

We are now satisfied that the decisions then made are law.

In the case of the Bank of Hamilton v. Dudley’s Lessee, 2 Pet., whore this very matter came under consideration in tho Supreme Court of the United States, Chief Justice ^Marshall says, “ if tho law which authorized the court to make the order be repealed, the power to sell can never come into existence.” He said this is a point upon which we can not doubt.

Judgment for defendant.  