
    William H. Beaumont, Jr., et al. v. G. E. Herrick.
    1. Where the grantee, in a fraudulent conveyance made by a debtor, dies, after tie rendering of a decree in favor of a judgment creditor, setting;, aside such conveyance, and ordering the sale of tbe property so con-veyed for the payment of the creditor, the failure to revive the decree against the heirs of such grantee will not affect the title of a purchaser acquired by a sale under the decree. ,
    
      2. Section 422 of the code, which provides when a judgment shall become dormant and cease to operate as a lien on the estate of the judgment debtor, does not apply to a decree for the sale of specific real property.
    3. 'Where a case is submitted to the court on a demurrer to the answer, the ground of the demurrer being that the answer does not contain a defense, and the demurrer is overruled, the plaintiff can not, without the leave of the court, dismiss his action without prejudice. The submission of the case on the demurrer is a final submission of the case within the meaning of section 372 of the code, unless leave is obtained to reply or amend.
    4. Whether, in such case, after the overruling of the demurrer, the plaintiff should have leave to reply, or to amend his petition, is a matter resting in the sound discretion of the court. If the exercise- of such discretion is re-viewable on error in any case, it can only be where the record shows, in view of all the circumstances under which the court acted, an abuse of discretion, resulting in a denial to.the party of a fair trial.
    Motion for leave to file a petition in error to reverse the judgment of the District Court of Cuyahoga county.
    The original petition was filed by Wm. H. Beaumont, Charles A. Beaumont, .and Genevieve E. Beaumont, by their next friend, to set aside a sale made by a master commissioner, under orders issued from the Court of Common Pleas of Cuyahoga county, of certain real estate in the city of Cleveland, known as the “Pavilion property.” The plaintiffs are the heirs at law of Genevieve E. Beaumont, and .the facts, so far as they are necessary to the understanding of the case, are, in substance, as follows:
    On September 3,1851, "William H. Beaumont, Sen., the father of the plaintiffs, conveyed the property in question, subject to a life estate to one Martha Beaumont, to Charles Stetson, to be by him conveyed to Genevieve E. Beaumont, the mother of the plaintiffs, to whom, on the same day, Stetson made such conveyance.
    At the May term, 1852, McBride, Sheldon & Co. recovered a judgment, in the Superior Court of Cleveland, against Wm. II. Beaumont, Sen., for $2,160.82, and costs. McBride, Sheldon & Co. afterward, on May 24, 1852, filed a bill in chancery, in the Court of Common Pleas ,of said county, against William H. Beaumont, Genevieve E. Beaumont his wife, and Martha Beaumont, to have said conveyances set aside, and the property thereby conveyed subjected* to the payment of said judgment. Such proceedings were had in such suit, that at the October term, 1856, of the District Court, a decree was rendered that the conveyance made by William H. Beaumont to the said Stetson, for the use of the said Genevieve E.; Beaumont, was made without valuable consideration, and under circumstances which, as against, the complainants, rendered the conveyance fraudulent ; and it was ordered and decreed that the said conveyance, and the one made in pursuance thereof, to the said Genevieve E., be set aside, and held for naught,. The court also found there was due the complainants, on the judgment, the sum of $2,761.90, and ordered and decreed that unless said William H. Beaumont should, within ten days from the rising of the court, pay to the complainants the sum found due, with interest, and also pay the costs of suit, an order be issued by the clerk of the court, directed to any master of the court designated by counsel of the complainants, commanding him to cause the premises described to be appraised, and sold, subject to the life estate of said Martha, as in eases of ordinary executions, and subject also to any contingent right of dower which said Genevieve E. might have in said premises, in case she should survive her husband. A special mandate was ordered to be sent to the Court of Common Pleas, to carry the decree into execution.
    At the May term, 1857, Charles G. Springer, Lewis Whiteman, and another, partners under the name of Springer & Whiteman, and the said McBride & Co., obtained a decree, in the same Court of Common Pleas, on a bill in chancery, filed by them jointly, on May 24, 1852, against the said William H. Beaumont and Genevieve E., his wife, and Martha Beaumont. By this decree, there was found due Springer & Whiteman from said William H. Beaumont, on a judgment which they had recovered against him, the sum of §5,965.37; and there was found' due McBride & Co., on a judgment which they had obtained against said William H. Beaumont, the sum of §463.59. The court also ordered and decreed that unless the said William H. should, within ten days from the risingof the court, pay the complainants the sum found due them respectively, an order should be issued by the clerk of the court for the sale of the premises in like manner as-was provided in the decree above referred to, in favor of McBride, Sheldon & Co.
    At the same term of the court, Springer & Whiteman and McBride, Sheldon & Co. obtained a decree, as between them and sundry other judgment creditors of William 11.. Beaumont, upon a supplemental bill, which they had filed upon the 30th of June, 1857, for the purpose of adjusting the priorities of liens held by the several judgment creditors. By this decree, the several amounts due the respective creditors were found, and priority was awarded to the said Springer & Whiteman and McBride, Sheldon & Co. And it was ordered and adjudged that, upon the sale of the real estate, the proceeds should be distributed according to the order and priority of the liens as therein determined. This decree contained no order for the sale-of the property, and from it, certain of the judgment creditors appealed to the District Court, where the case, at the-October term, 1857, was reserved for decision by the Supreme Coui’t.
    At the December term, 1862, of the Supreme Court, a-, decree was entered in the case thus reserved, which contains-the following recital: “ The death of Louis Whiteman, one of the plaintiffs in this case, is suggested, and thereupon, by consent of the parties appealing, this day came the parties by their solicitors, and this cause came on to be heard upon the bill, supplemental bill, amended bill, and the several answers, files, and exhibits, and was argued by counsel. On consideration whereof, the court do find that there was due from the said William H. Beaumont, on-the first day of the present term of this court, to the several parties hereinafter named, on their respective judgments, as follows.”
    The amount found due the respective judgment creditors is then stated, priority being awarded to Springer & White-man and McBride, Sheldon & Co., and the order of priority determined as to the other creditors, who are found to have liens upon the premises. Like the decree in the court below, it contained no provision ordering a sale, but adjudged that upon such sale being made, the proceeds should be distributed as therein determined.
    On the 25th day of March, 1863, a special mandate was issued to the Court of Common Pleas to carry this decree into execution.
    April 29, 1857, the first order of sale was issued in favor of McBride, Sheldon & Co., upon the decree in their favor, upon which nothing was done but appraise the property.
    April 19, 1862, an alias order was issued, which was returned by order of plaintiffs’ attorney.
    At the November term, 1862, Genevieve E. Beaumont having died July 14, 1861, the appraisal made during her lifetime was set aside.
    January 6, 1863,<and after the determination of the life estate of Martha Beaumont by her death, the third order of sale was issued on the decree in favor of McBride, Sheldon & Co., on which nothing was done except to appraise the property.
    February 11, 1863, the fourth order on' this decree was issued, under which, and the order next mentioned, the sale of the property was'made, March 21, 1863, to the defendant.
    February 16,1863, an order of sale was issued on the decree in favor of Springer & Whiteman, under which the property was duly appraised, and the sale thereof to the defendant, as upon the order last named, reported by the master.
    At the February term, 1863, Court of Common Pleas, the sale was confirmed and a deed ordered to be made by the master, which was accordingly done. The defendant having purchased the claims of McBride, Sheldon & Co., Springer & "Whiteman, and certain other judgments which were liens upon the property, the purchase money was applied in payment of said claims, and the costs. The premises'sold for $14,000.
    The original petition in this case was filed in the Court of Common Pleas, October 4, 1870. At the May term, 1871, a demurrer was sustained to an amended petition, on the ground that it did not show a cause of action, and the ■petition was dismissed.
    The case was taken on appeal by the plaintiffs to the District .Court, and at the September term, 1871, they obtained leave to file a second amended petition. At the September term, 1872, the amended petition not having been filed, leave was again granted to file the same instanter. August 7,1878, the amended petition was filed, to which the defendant answered. At the September term, 1878, the cause was heard upon the demurrer of the plaintiff' to this answer, and the demurrer was overruled, and the petition dismissed.
    On the overruling of the demurrer, application was made 'for leave to amend the petition by setting up additional ■matter, accompanied by an affidavit to show the good faith of the application. The court refused the leave asked, to which the plaintiffs excepted. Plaintiffs’ counsel thereupon represented to the court that the demurrer was filed in good faith, and asked leave to reply to the answer. The substance of the reply proposed to be filed, was that the plaintiffs denied every “ allegation of new matter in the ;answer.” This application was also refused. They then asked leave to dismiss their action without prejudice, which application was likewise refused ; to which refusal they ex-cepted. A bill of exceptions was duly taken to these several rulings.
    . Leave is now asked to file a petition in error, to reverse the judgment of the District Court dismissing the petition. .
    
      
      jEstep ^ Burke, for plaintiffs in error:
    I. The right of a party to dismiss his action at any time before its final submission on the merits, is secured in plain and unambiguous language by the code. Sec. 372.
    II. By the appeal the whole case was carried up, and no sale could be made until its final disposition. If otherwise, how does it happen that the plaintiffs took decrees in the Supreme Court for the full amounts due them up to the date of the decrees ?
    III. The case was heard nearly two years after Mrs. Beaumont died, yet no action or decree was ever revived against her. Code, secs. 422, 602.
    The death of a party to a judgment abates the judgment. Code, secs. 416, 417. The provisions of section 407 of the code is but a declaration of the well-settled chancery practice on the subject. Taylor v. Savage, 1 How. (U. S.) 281; Story’s Eq. Pl., secs. 354, 359, 342, 360, 364, 367, 370, 371; 2 Daniel Ch. 1540, 1552-1544; 2 Paige Ch. 277; 15 Ill. 308; 23 Ill. 611; 1 C. E. Green, 110; 2 Beasley, 186; 10 Beavan, 484.
    IV. A sale made upon a dormant' judgment is void. 5 Lans. 153; Rorer on Judicial Sales, 237; 3 Cold. (Tenn.) 390; 15 Ill. 209, 310; 10 Wend. 107; 2 Wall. 313; 19 Ill. 111; 1 Ohio, 458, 467; 2 Ohio, 287; 5 Ohio, 221.
    Of course, it follows that a sale made upon the decree in favor of Whitman & Scarborough and McBrid.e, Sheldon 6 Co. alone would be void; for, as we have seen, that decree was not only dormant by the decease of Mrs. Beaumont, but also by lapse of time. And hence, the defendant is in the position to rely upon a dormant decree to support his sale, or to take the position that the decree was not dormant because appealed from; and if appealed from, as it clearly was, then it was vacated by the appeal, and the whole case was pending in the Supreme Court, and undecided, until after the order of sale was issued thereon, and the appraisal and sale thereunder made. It plainly appears, therefore, that this decree was dormant at the time of the sale, or that no final decree had been rendered in the case. The best the defendant can claim, therefore, is that he can stand upon the order issued on the first decree in behalf of McBride, Sheldon & Co.; but as the sale was not made upon that alone, he must establish, first, that that decree was in force and the order of sale made thereon valid, and also that a sale made on two orders is good if either order is good. "We have been able to find but one case where the question of the validity of a judicial sale made on two orders, one void and the other good, was directly in issue, and decided by the court. That is the case of 16 Ind. 484. The same principle is recognized in 3 Ind. 528, and 8 Blackf. 455.
    A careful reading of Herrick v. Grove, 16 Wis. 157, shows that no such question, as that a sale on two orders, one good and the other bad, is not void but only voidable, was before the court, and that the court did not so decide. Nothing can be claimed from that authority, and no other can be found which even remotely sustains the position claimed by the defendant.
    Y. Mrs. Beaumont’s title was not extinguished by the decrees. If not extinguished until sale, then it is clear she died the legal owner of the property, and her title descended to her heirs, and they could only be deprived of it by a valid and legal sale, upon proceedings in which they were parties.
    This conveyance was not void under the statute of frauds. The statute of frauds has no application whatever to it. Mrs. Beaumont had a life estate in the property in question, and it was otherwise incumbered by liens upon it. Such reversionary interest of Wm. H. Beaumont, incumbered by liens as it was, was not subject to sale upon execution.
    The statute of frauds deals with the legal rights and remedies of parties, but it has no effect upon property ■which was not subject to execution, and never could have been taken by such process. S. & C. 656, sec. 2; Kerr on Frauds, 209, and note 2; 1 Vesey, Jr., 196; 9 Ves. 188; 10 Ves. 368; 18 Ves. 196; 2 Mason, 252; 4 Johns. Ch. 450; 4 Humph. 75; 3 Mon. 32; 1 Fairf. 161; 11 Vt. 595; 12 Mo. 169; 6 Bush, 515.
    We maintain that the decrees upon which the orders of sale issued did not of themselves, and until executed, deprive Mrs. Beaumont of her title, or avoid the deed to her; that it did not reinvest her husband with title; that, as between her and him, she owned the land; that the legal title still remained in her, and when she died, it descended to her heirs; and that up to the time of the execution of the decree, and the sale of the property thereunder, she continued to own the property, and in case of sale would be entitled to the surplus (Graham v. The R. R. Co., 3 Wall. 704); and this is so even if this conveyance was fraudulent as to creditors. Sherman v. The Farmers’ Bank, 5 Watts & Serg. 373; 1 Amer. Lead. Cases, 48; 3 Ind. 100; Glasner v. Wheaton, 2 E. D. Smith, 352; Waterbury v. Westervelt, 5 Selden, 598; Bostwick v. Mentz, 40 N. Y. 383; 1 Iredell, 249; 5 Iredell, 47.
    
      B. P. Banney, for defendant in error:
    I. By section 372 of the code, the plaintiff can only dismiss his action without prejudice to a future action, when he exercises the right before the final submission of the case to the jury or to the court, where the trial is by the court. This case was submitted to the court by the demurrer.
    This court can only review the rulings of the courts below, when in possession of facts and circumstances upon which they were made.
    Amendment of pleadings is not a matter of right, but is entirely within the discretion of the court.
    II. The defense set up in the answer was a naked attempt to collaterally impeach a judicial sale. The general pi’inciples goverxxixxg such an attempt, are stated in 3 Ohio St. 494. Those who make the attempt, must base #themselves upoxx a- valid title to the property, as against the creditor, arxd the purchaser who succeeds to all the rights of the creditor.
    This conveyance was fraudulent, and was so found by two courts having complete jurisdiction over the parties and the subject-matter. The statute declares it utterly void, a nullity, a nothing, to every intent and for every purpose. As against these defrauded parties, there was nothing left in Mrs. Beaumont that could descend to her heirs. To hold that there was, is simply to hold that the statute is a nullity, and that the decrees which set aside the conveyance are also nullities.
    Even if Mrs. Beaumont had not been made a party, this court has held that, upon the facts being shown, the same legal consequence would ensue. 18 Ohio, 362.
    III. There is no truth in the proposition that any appeal was taken from either of the decrees upon which the land was sold.
    It is of no importance that Mrs. Beaumont was» dead when the sale was made, and no revivor against her heirs: 1. Because the decrees against her were final and conclusive in her lifetime, and left nothing to be done in respect to any interest of hers, so far as the creditors were concerned. 2. Because the decrees conclusively established the fact that her pretense of title was a fraud. 18 Ohio, 362. 3. Because the execution of the decree in the McBride case was begun in her lifetime, and might well proceed to a consummation after her death. Taylor v. Miller, 13 How. 287; Craig v. Fox, 16 Ohio, 570; Ward v. Morehouse, 45 N. Y. 368.
    There was no dormancy of either decree. Five years bad not elapsed. There is no such thing as dormancy to be predicated of the decrees of a court of equity for the sale of specific property.
    The provisions of section 425 of the code, and in fact every provision of title 14 of the code, have no reference whatever to such decrees. But if they had any application, .still a sale made and confirmed after five years, and after the judgment was dormant, would confer a perfect title. Rorer on Judicial Sales, 234, sec. 656; Lessee of Sumner v. Moore, 2 McLean, 59; Armstrong v. Jackson, 1 Blackf. 310; Childs v. McChesney, 20 Iowa, 431; Willard v. Whipple, 40 Vt. 219; 8 Johns. 361; 13 G. R. 97.
    If one of the orders had been void, still, if the- other had been valid and in full force, the sale would be good. Richards v. Allen, 3 E. D. Smith, 399, 440; Rorer on Jud. Sales, 234, 250; Herrick v. Grove, 16 Wis. 157.
   White, J.

The decree rendered on the supplemental bill, which was appealed from by certain of the creditors, did not affect the decrees rendered in favor of McBride, Sheldon & Co. and Springer & Whiteman, setting aside the fraudulent conveyance and ordering the property to be sold. The object of the supplemental bill was to marshal the liens of the respective parties with a view to the distribution after the sale of the property under the other decrees. The last-named decrees remained in full force, and their execution, therefore, was not affected by the appeal.

It is, however, contended that after the death of Mrs. Beaumont, the grantee in the fraudulent conveyance, a sale of the property could not be made under these decrees until they were revived against -her heirs.

This claim arises out of a misapprehension of the relation in which the parties stood to the property.

As respects the judgment creditors and their right to have the property sold, and the proceeds subjected to the payment of their judgments, the title was in the fraudulent grantor. On the sale being made, the surplus of the proceeds, if any, after satisfying the creditors, belonged, of course, to the grantee or those claiming under her; but for the purpose of enforcing and obtaining satisfaction of the decrees, the property was still the judgment debtor’s.The purchaser at the sale under the decrees does not claim through or under the fraudulent grantee, but connects his title with that held by the debtor before the fraudulent conveyance was made. As between the purchaser and the heirs of such grantee, the parties stand in the same relation to the property as they would have stood if the fraudulent conveyance had never been made.

If the sale had been made under an execution issued on a judgment against the husband, or on a decree against him in a suit to which his wife was not a party, she would have no right to a resale of the property. A decree, in a suit between'her and the purchaser, that the conveyance to her was fraudulent, would effectually cut off all claim on her part to an interest in the purchased property. Sockman v. Sockman, 18 Ohio, 362.

As this would be the effect of a decree between her and the purchaser, a like decree between her and the judgment creditor, before the sale, has the same effect. -The only difference in the two cases is, that in the one case the property would be sold subject to the cloud on it caused by the fraudulent conveyance, and in the other case the cloud would be removed before the sale. And a decree finding the conveyance fraudulent, which binds her, will bind her heirs.

The property was not sold as the property of Mrs. Beaumont, but as that of her husband, who was a party to the decrees ordering the sale, and was living, at the time they were carried into execution. It seems to us the failure to revive the decrees against the heirs of Mrs. Beaumont, does not affect the title acquired by the purchaser at the sale made under the decrees.

There is no claim in the case that the judgments or decrees were paid, or otherwise satisfied, after they,, were rendered. Hence all discussion as to the effect of .such payment is irrelevant.

It is also claimed the decrees became dormant, under section 422 of the code, before the issuing of the last orders of sale, and that for this reason the sale is invalid.

All judicial sales in this state require confirmation by the court before they can be completed. Without conceding, therefore, that under our system, such sales can be impeached, on the ground of the dormancy of the judgment, otherwise than by a proceeding in error to reverse the order of confirmation, it is sufficient to say, in answer to the present obj ection, that we are satisfied the section of the coda referred to, has no application to decrees for the sale of specific real property.

The section provides, that if execution shall not be sued out within five years from the date of a judgment, or if five years shall intervene between the date of the last execution and the suing out of another writ of execution, the judgment shall become dormant, and cease to operate as a lien on the estate of the judgment debtor. This section has sole reference to judgments for money which are to be enforced by the writ of execution. The succeeding section prescribes what a writ of execution shall contain, and shows that it is wholly inapplicable to the enforcement of decrees in equity for the sale of specific property. The suits in which such decrees were rendered, remained on the docket, and were continued from term to term, for the purpose of their execution, until the amendment of section 806 of the code, which directs the clerk to leave such cases off the docket where nothing remains to he done except to execute an order of sale, and distribute the proceeds as directed in the order. That amendment does not alter the effect of such decrees, though, under it, the suits in which they are rendered may be left off the docket.

The next question arises on the alleged error of the court in refusing to allow the plaintiffs to dismiss the suit without prejudice.

We see no error in this refusal of the court. The submission of the ease on the demurrer was a final submission of the case within the meaning of section>372 of the code, unless leave was obtained to reply or amend. Without additional pleading, the legal consequence of the overruling of the demurrer was a judgment of dismissal.

The remaining question is, whether there was error in i efusing leave to reply, or amend the petition.

The case had been taken by appeal to the District Court. In addition to what is found in the code on the subject of amendments, the statute provides, in regard to the trial of cases coming into that court by appeal, that they shall be tried on the pleadings made up in the court below, unless, for good cause shown, the said court” shall permit an alteration of the pleadings. There is a manifest propriety in requiring greater strictness in regard to amendments in that court than in the court of original jurisdiction.

. The reply which it was proposed to file, could not substantially have varied the case, the controlling facts being matter of record not controverted.

The whole subject, however, rested in the sound discretion of the court. If the exereise'of such discretion is reviewable on error in any case, it can only be where the record shows, in view of all the facts and circumstances under which the court acted, an abuse of discretion, resulting in the denial to the party of a fair trial.

In regard to the present record, it is sufficient to say it does not make such a case.

Leave refused.

Day, O. J., McIlvaine, Welch, and Rex, JJ., concurring.  