
    Lessee of Benjamin Paine vs. Bazaleel Mooreland.
    A person executing a defective deed for the conveyance of land, which deed has not been recorded, has an interest in the land capable of being attached.
    If attached and sold as the property of the vendor, a purchaser, without notice of the equity, lakes a good title as an innocent purchaser without notice.
    The Court acquires jurisdiction in attachment, by the issuing of process, predicated upon the requisite affidavit, and the attaching of the property 3 and if, after thus obtaining jurisdiction, the Court proceed to render judgment, without the publication of notice, such judgment is not void, and cannot be impeached collaterally, but must be reversed upon writ of error.
    This is an Action of Ejectment, reserved in the County of Licking, and is submitted to the Court upon the following agreed statement of facts :
    Both parties claim title under David Letts, the grantor of one William Farmer, who held the legal title. The deed from Farmer to Letts is the last deed in the chain of title on record, Letts conveyed to Lewis Nichols. This deed is not on record; and neither Nichols nor any of his grantors were ever in possession of the land. On the 25th of October, A. D., 1831, Nichols, then residing in the State of New York, attempted to convey the land in controversy to Benjamin Paine, the lessor of the plaintiff, and at the same time delivered over to Paine the recorded deed from Farmer to Letts, and the recorded deed from Letts to Nichols. The conveyance from Nichols to Paine proved defective for the want of a seal. This mistake was corrected by the decree of the Court of Common Pleas, in Chancery, in 1839, perfecting the title of Paine as against Nichols. The defendant, Mooreland, was then in possession of the land, and was not made a party to the proceedings in Chancery. The execution of the unrecorded deeds is admitted.
    In Bank.
    Dec. Term, 1846.
    The defendant claims under proceedings in attachment agáinst Nichols. On the 20th of June, 1832, (over eight months after Nichols attempted to convey to Paine, and delivered to him the unrecorded title papers,) an attachment was sued out against Nichols by one JohnElder, and this writ was returned by the sheriff with the following return indorsed, to wit: “Attached the following described property, viz: All ‘ that tract or parcel of land, lying and being in the county of ‘ Licking, and State of Ohio, in rango twelve, township three, ‘ and section 1, the south half of lot number —, except twepty ‘ acres, to be taken out of the southwest corner of said half ‘ lot, commencing at the southwest corner and running north ‘forty rods; thence east, so far as to contain twenty acres; ‘ which said twenty acres of land was sold to Bazaleel Moore- ‘ land by the defendant Nichols.” At the March term of the Court of Common Pleas, 1833, a- judgment was rendered under this attachment, by default, for $72.21, debt, and $9.50, damages and costs.
    After the rendition of said judgment, and on the 6th day of July, A, D,, 1833, a writ of execution was issued, called a fieri facias et livari facias, against Nichols, and upon the return day of said writ, the sheriff returned the same, with the following return indorsed, to wit: “ Received this writ July 19, £ 1833. No goods. And in pursuance of the command thereof, £ I, on the 29th day of July thereafter, levied on the following £ described tract of land, to wit: Lying and being in the ‘ county of Licking, and State of Ohio, in range twelve, town- £ ship three, and section one, U. S. M. land, bounded on the £ north by land of Theodoric Warthan, on the west by lands £ Bazaleel Mooreland, on the south by lands of Joseph King, £ and on the east by lands of-, containing one hundred £ acres, more or less;” and after setting forth in said return, that he caused said land to be appraised and advertised for sale, according to the statute, &c.,'he further sets forth, “that on £ the third day of September thereafter, at the tíme and place, £ &c., I offered the same for sale at public outcry, when John £ Elder bid therefor the sum of sixteen dollars and sixty-seven £ cents; and that being two-thirds of the appraised value £ thereof, and no person appearing to bid any larger sum, the £ same was publicly struck off and sold to the said John. Elder, £ for the sum aforesaid.” And afterwards, at .the September term, A. D., 1833, the following entry, is made upon the journal, to wit:
    “ John Elder, 7 vs. > “ Lewis Nichols. J Order for deed same as above.”
    This entry is made on the journal, under similar order, in another case, written out in full. The sheriff afterwards conveyed to John Elder the tract, as it is described in the writ, through whom the defendant Mooreland derives title.
    John Elder, the purchaser and plaintiff in attachment, had no notice, prior to the attachment, of the attempted conveyance to Paine.
    It is admitted that the defendant is prepared to prove, by parol, that the land supposed to have been taken by the sheriff, under the writ of attachment, is part of the same tract that was afterwards levied on and ■ sold under the execution issued the judgment in attachment; -the land supposed to be attached is the same tract now in controversy. It is also admitted and understood, that the record and papers in the attachment suit, and the deeds and papers in the possession of the lessor of the plaintiff, and the record in the suit in.chancery in the Common Pleas Court, of Paine v. Nichols, are all admitted in evidence, and to be considered as part of this agreed case, reserving all questions touching the admissibility of the record in the chancery suit of Paine v. Nichols, as evidence in the cause. • •
    It is also agreed and understood to be admitted, that the deed made by the sheriff, under the order of the Court, in the attachment suit, to John Elder, the purchaser, was executed and delivered on the fourth day of November, A. D., 1834, and was received for record and recorded (Book W. p. 553,) on the 23d day of January, A. D., 1836.
    The proceedings in attachment, under which the defendant derives title, do not show that any notice of the pendency of the suit in attachment was given, as the statute requires.
    
      Geo. B. Smythe, for Plaintiff.
    First: At the time of the attachment, Nichols, in fact, held but the naked legal title, in trust for Paine. This trust estate was not subject to execution, against the trustee; 1 Ohio Rep. 258. It is not sought to disturb the principles decided in Scribner v. Lockwood, and Parker’s Lessee v. Miller, in 9 Ohio Reports; but they surely have carried the law far enough. Here the purchaser was not injured by the non-recording of the deed, because if he went to the record for information, there were other defects in the claim of title, as well as this.
    The act under which this land was sold, provides that it shall be sold “ under the same restrictions and regulations as if the same had been levied upon by execution.” A sale on execution “ shall vest in the purchaser as good and as perfect an £ estate in the premises-therein mentioned', as was vested in'the ‘ party at or after the time when the lands became liable,” &c. Nichols at the time of the. attachment, as before stated, was not vested of an estate. Swan’s Stat. 476: -
    Second: There was no notice of the pénden'cy of the proceedings in attachment,' as required b.y the statute, without which the Court had no1 jurisdiction. This was not a proceeding according to the course of the. common law. It. was a proceeding under the -statute, affecting, title to real estate.— Hence the provisions of the statute must- be fully complied with; Adams’ Lessee v. Jeffreys, 12 Ohio Rep. 271; 13 Mass. Rep. 73. But the precise point made here has been decided, as-contended for the-plaintiff, in Warren v. Webster et al., 13'Ohio Rep. 506. , . .' ' - .
    It may be said this is a proceeding in- rem, and therefore the land is bound, by the action of the Court. It is tfue the form of the proceedings is in rem, but they are not effectual to charge the land, till aftér there is a judgment in personam.
    Third: The returii upon the attachment is too vague to cover any particular land, and parol evidence is inadmissible to prove what land was actually attached. 4 Mass. Rep. 205; 7 Johns; Rep. 217; 4 Mass. Rep. 196; 5 Wheat. Rep. 359; 4 Peters’ Rep. 350; 13 Johns. Rep. 77; 3 Ohio Rep. 272; 'Wright’s Rep. 768; 1 N. Hampshire Rep. 93; and 5 Ohio Rep. 459. , ■ . ' • . ; '
    .Fourth.- The sale by the sheriff conveyed no title, for the reason that- no correct process was issued, upon which the salé was made. The statute required that an ordev should' issue ;. the process issued was a fi. fa. This' Was void for the want -of ' power to issue it,, and of course all proceedings' tinder it are void. 1 Ohio Rep, 466; 9,Ohio Rep. 112. '
    
      King, for Defendant.
    The plaintiff makes four objections to the defendant’s title —
    . First ':1 That-at .the'time .of issuing the ¿t-tachment, Nichols held but the naked legal title-in trust for Paine.
    
      Second: That the proceedings in the attachment were void for the want of the requisite notice.
    Third: That in consequence of imperfection in the description of the land attached, the levy was void for uncertainty.
    Fourth: That the process under which the sale was made, was void.
    First: It is believed that the decision of this Court, in the case of the Lessee of Parker v. Miller, 9 Ohio Rep. 108, is a complete answer to the first objection. It is claimed that there is a difference between this case and the one referred to in this particular, to wit: that the title of Nichols, the .defendant in the attachment, did not appear on record, and that therefore the attaching creditor was bound to look after his title papers, which, being in the hands of the plaintiff, would have led to a discovery of his rights. The force of this reasoning is not . perceived.
    Second: To the second objection, that the proceedings in the attachment were void for the want of the requisite notice, we reply, that the proceedings cannot be thus collaterally impeached, unless the omission to give notice goes to the jurisdiction of the Court. Now, it is clear that the jurisdiction of the Court was complete, provided the requisite affidavit was made, and the property of the defendant in the attachment was seized. It is a proceeding in rem, and unless some property of the defendant can be found the jurisdiction fails. The Court, on the filing of the proper affidavit, is required to issue its writ; and if any thing can be found for the writ to act upon, the jurisdiction is obtained. In the case of Mitchell v. Eyster, 7 Ohio Rep. 257, it was held “ that the fact of indebtedness of the ‘ defendant, • his non-residence, and the actual levy upon his c property, gave jurisdiction.” And, in the case of Voorhees v. Jackson, 10 Peters’ Rep. 449, it was decided, “ that the ‘ want of evidence of publication upon the record was, at most, ‘ but error, and did not vitiate the proceedings.”
    It must be manifest, that the jurisdiction of the Court is acquired before the notice is required to be given. Parker’s Lessee v. Miller, 9 Ohio Rep. 113.
    
      In the case of Lessee of Adams v. Jeffries, 12 Ohio Rep. 272, the Court use this language: “ After jurisdiction is once { acquired, however irregular and erroneous their proceedings ‘ may be, they cannot be collaterally impeached, and they con- ( elude all parties, unless annulled by certiorari or appeal.”
    Third : To the objection, that the levy of thé writ of attachment was void, for want of certainty in the description of the property, we answer: The question of identity is always a matter for parol proof, and it is admitted, in the argued case, that such proof can be made, and that it is, in fact, the same land.
    The case of The Lessee of Mathews v. Thompson et at, 3 Ohio Rep. 273, settles this point. The levy, as indorsed on the writ in that case, was, “ upon one hundred acres of land in section 4, township 7, range 4,” with no further description. The Court held, “ that the return ought to have been so specific 1 as to enable the purchaser to ascertain the land which he * purchased with certainty. This defect, however, may be 1 supplied by parol testimony .” In the same case, it was said by the Court, “ that a variance between the levy and the de- ‘ scription in the (sheriff’s) deed might also be explained by ‘ parol.” “ If the levy was actually made on the tract contained { within the boundaries set out by the deed, and the fact was ‘ known and understood at the time of the sale, no injustice * has been done.” “ An innocent purchaser, under such eirc cumstances, ought not to suffer by the careless manner in c which the officer has stated his proceedings, if, in point of ‘ fact, they have been substantially correct.” 3 Ohio Rep. 274. ■
    Fourth : The last objection is, that the process upon which the sale was made, was void. The statute requires the property attached “ to be sold by order of Court, under the same ‘ restrictions and regulations as if the same had been levied in ‘ executionCollated Stat. 92. This, we claim, has been substantially done. The fi. fa. issued by the clerk was the order of the Court on which the sale was made. The Court acts by its clerk, and the act of the clerk was the act of the Court. If such proceeding was not strictly formal, the thing, nevertheless, intended to be done was done, and no injustice was done to any one. After the confirmation of the sale by the Court, and deed ordered to the purchaser. it surely cannot be held that such irregularity would affect the title.
   ' Read, J.

Both parties derive title from Nichols — the plaintiff by direct purchase, and the defendant under a sale in attachment. The deed to Paine was defective, for want of seal. Its date was the 25th of October, 1831. This defect in the deed was barred by decree in chancery against Nichols, in the year 1839. This deed was not put upon record. Eight months after.its execution and delivery, to wit, on the 20th of June, 1832, a writ' of attachment was sued out against Nichols, at the instance of John Elder, and such proceedings were had in this suit, that the land conveyed to Paine was sold, bought by Elder, and, subsequently, by competent conveyance, transmitted to defendant. The judgment in attachment remains unreversed, and the defendant was not a party to the suit against Nichols, to correct the deed; and, at the time of the purchase under the attachment, Elder had no notice of Paine’s equity.

The determination of the following propositions must dispose of this cause :

1. ’ Had Nichols an interest in the land subject to attach- ■ ment ?

2. "Were the proceedings in attachment void ?

If Nichols had no interest in the land, or if the proceedings ; in attachments'were void, then the plaintiff must recover. But, i if he had‘an attachable interest, and the proceedings in attachment are not void, the defendant must recover.

As to the decree in chancery, perfecting the title from Nichols to Paine, it is of no binding effect as to the defendant, as he claimed title to the land and was in possession at the time suit was brought, and was not made a party. Yet, the proceedings in such suit were competent evidence; as in one aspect ■of the case, to wit, if the proceedings in the attachment should be held void, it would warrant a recovery, as the plaintiff must recover upon the strength of his own title, and show that he had acquired the legal title from Nichols. Beyond this, the chancery proceeding can have no effect. As to the question, whether the land was subject to attachment as the property of Nichols: Nichols was the admitted owner of the land, unless he had divested himself of title by the conveyance to Paine. It is not contended that the defective deed to Paine transferred to him more than an equity. Nichols was still clothed with the legal title, and had the power to transfer the whole interest in the land to any person purchasing for a valuable consideration, without notice. In fact, he' was the true owner, so far as third persons were concerned, without notice. It would not be contended, that, had lie made sale to an innocent purchaser, without notice, that it would not have transmitted the whole title. Purchasers at judicial, sales, without notice, are treated as innocent purchasers. They fall within the same principle of protection that is extended to private purchasers. Hence, the land was subject to attachment, as the property of Nichols. This doctrine is settled in numerous reported decisions. Lessee of Parker v. Miller, and Scribner v. Lockwood, 9 Ohio Rep.

Are the proceedings in attachment void ? It is contended they are void, because no notice of the pendency of the attach-' ment was given, as required by the statute. If the jurisdiction of the Court once attached, subsequent irregularities would render the judgment voidable only; and it would remain valid until reversed, and cannot be impeached collaterally.

What, then, gives the Court jurisdiction in a proceeding in attachment ? The filing the proper affidavit, issuing the writ, and attaching the property. The moment the writ goes into the hands of the officer, he is authorized and required to seize the property. When this is done, the property is taken out of the possession of the debtor into the custody of the law. The Court have authority, at any time after the return of the writ, to direct property of a perishable nature to be sold. It is not until after the return of the writ that the clerk is directed to make out the advertisement, which the plaintiff is required to have published, as the statute directs. If he neglects to have such notice published, for six weeks successively, the statute directs that the attachment shall be dismissed with costs. Here, then, for a period of six weeks, at least, if the publication of the notice only gives jurisdiction, the Court both have, and have not jurisdiction over the property seized in attachment. It is contended the Court has no jurisdiction, and yet the statute authorizes the Court to exercise a judicial act over property attached, namely, to determine whether it is perishable, and if so, to direct its sale.

Will it be contended, then, that the Court has jurisdiction over perishable property before notice consummated, but not over property' not perishable ? This is a distinction not authorized by the .statute. A court acquires jurisdiction by its own process. If the process of the Court be executed upon the person or thing, concerning which the Court are to pronounce judgment, jurisdiction is acquired. The writ draws the person or thing within the power of the Court; the Court once having by its process acquired the power to adjudicate upon a person or thing, it has what is called jurisdiction. This power or jurisdiction is only acquired by its process. To give jurisdiction is the object of process. The mode of executing or serving process, is sometimes directed or permitted to be by notice by publication. All process issues under the seal of the Court. Notice'by publication is not process, but, in certain cases in contemplation of law, is equivalent to service of process. The process in attachment is the writ authorizing and directing a seizure of the property. No process is issued against the person; because the proceeding is in rem. The statute, however, regards it but just that notice should be given to the debtor, not for the purpose of giving the Court jurisdiction over the subject matter, but to permit the debtor to have an opportunity to protect his rights, and directs that the writ shall be quashed if it be not given. The distinction is between a lack of power or want of jurisdiction in the Court, and a wrongful or defective execution of the power. In the first instance, all acts of the Court not having jurisdiction or power, are void — in the latter, voidable only. A court, then, may act, first, without power or jurisdiction, second, having power or jurisdiction, may exercise it wrongfully; or, third, irregularly. In the first instance, the act or judgment of the Court is wholly void, and is as though it had not been done. The second is wrong, and must be reversed upon error. The third is irregular, and must be corrected by motion. The latter is where the power is rightfully exercised, but in an irregular way. Hence there is a vast distinction between a defect of power, a wrongful exercise of power, and an irregular exercise of power.

Now, what happened in this instance ? The Court had the power, by the service of its process, to proceed and give judgment ; but a circumstance occurred after having acquired such power, which forbid them the exercise of it; but having it, they did exercise it, which was error. But it can only be corrected by a writ of error. Such appears to have been the decision of the Court in Parker v. Miller, 9 Ohio Rep. 108, and cases there cited. The case in 10 Peters’ Rep., Voorhees v. The Bank of the United States, recognizes these principles.

It is true that it has been decided, in Warner v. Webster, 13 Ohio Rep. 506, that a judgment in attachment, if notice had not been given, was void. That case was rightly decided, although a wrong reason was assigned. The truth is, in that case, an equity was attached, when the statute under which 'that proceeding was had, only authorized an attachment against a legal estate. The process, therefore, not having been executed upon a subject matter within its rightful action, brought nothing before the Court upon which they had power to act, and, therefore, the judgment was void for want of jurisdiction.

But it is contended that the purchaser under the sale bond in the attachment, took nothing, because the sale was upon a fi. fa., and not an order of the Court. The act allowing and regulating writs of attachment, of June 24th, 1824, directs that, after judgment, the property attached shall be sold by order of the Court. It is contended that, in this case, the land was not sold by order of the Court, and, therefore, that the officer making sale, had no power to sell, and that hence the sale did not divest Nichols of the legal title. Judgment had been rendered against the debtor in attachment, to be satisfied out of the property attached, if there was sufficient, and if not, execution could issue for the residue, as in other cases. A general execution issued in the first instance, which would have authorized the sale of any and all property of the judgment debtor, other than that attached. The officer making the sale, hence, was clothed with power to sell; the difficulty was, not defect of power, but too much power. In its exercise, however, he conformed strictly to the limitations of the statute, and sold only the land seized in attachment. The Court failed to restrict the power of sale, conferred upon the officer by the general writ; but, on the return of the writ, finding that the power of sale had been rightfully exercised, the act of the officer was recognized as right, and the sale confirmed. We regard this as a mere irregularity. And it is doubtful, even, whether the Court, had motion been made to correct it, and the confirmation of sale had been resisted on that ground, would have entertained the motion, for the reason, that no one had sustained any injury by the irregularity. All had been done which should have been. The general power of sale had been limited by the act of exercise, although not restricted by express order. To have set the sale aside for this ground, would have been to create the delay and expense of having the same thing done over again, precisely as it had already been done. This is not at all like the case of executors and administrators. The power to sell the land here results from the judgment. The order of the Court is merely to restrict and direct the execution of this power. The power to sell results to executors and administrators alone, from the order of the Court to sell. Hence, if there be in that case no order to sell, it is like a case of sale on execution without judgment. The order to sell lands under attachment, limiting the sale to the lands attached, is a limitation, not a grant of power. The order to administrators and executors to sell lands, confers the power to sell. The lack of the one is a. mere irregularity of the other -— a total defect of power. Hence the difference as to the results. .

There has been much ingenious and able argument- in this ■ case, to show what could be proved by parol, and what must be established by record — what will be presumed, and what must be established by positive proof.

We rest the case, nakedly, upon the ground, so far as the proceedings in attachment are concerned, that there was a judgment of a Court of competent jurisdiction, unreversed, conferring the power to sell the land in question, which cannot be impeached in this collateral way; that the defects and irregu-' larities complained of, should have been remedied by, writ of error, or motion.

In this view of the case, then, the defendant, by the proceed- . ings in attachment, is clothed with the legal title; and hence judgment must be rendered in his favor.

Judgment for Defendant.  