
    Lessee of Abigail Pillsbury and Mary Sargeant v. Thomas Dugan’s Administrator. and The Same v. Hiram B. Cade and Others.
    No mistake of name will invalidate an instrument or proceeding, unless the person meant can not be identified; bad spelling will not produce suck, effect.
    'The names of Pilisby and Pillsbury are so nearly identical, that proceedings in partition against a defendant by either name, will be good. Biddulph may be proven to be another mode of spelling Pulhuff.
    
    Errors in form are overlooked, when the acts of a court are manifest, and the jurisdiction established.
    Nonjoinder of the husband in proceedings for the partition of the wife’s land leaves his life estate untouched, but partition against the wife without the husband will bind her unless reversed.
    Partition proceedings are analogous to those in rem, and publication of notice by advertisement, is sufficient to apprise a party of the proceeding and to bind his interest.
    >One acting in a court of general jurisdiction, as an attorney in fact for a party, will be presumed to have satisfied the court of his power to act, and the . party affected can not impeach the proceedings collaterally, because the fact of such proof does not appear in the record.
    Ejectments. From Hamilton. These suits depend upon the same title, and were heard together upon agreed facts.
    The plaintiff claims two undivided eighths of lot 92, and out lot 20 in Cincinnati. He shows a title in his lessors, by a deed from John Cleve Synimes, dated in August, 1795, conveying the land to them under the names of Abigail Cutter and Mary Cutter. Abigail Cutter Fas heretofore intermarried with Silas Pillsbury, and Mary Cutter -with Phineas Sargeant, but both husbands have deceased, so that the plaintiff is entitled to a recovery in both cases, unless these interests have been extinguished by certain proceedings in partition.
    In August, 1805, the following petition was filed in the Common Pleas of Hamilton county. “ The petition of the subscribers respectfully showeth, that John Cutter, late of Cincinnati, died seized of a certain in-lot, No. 92, containing seventy-two perches, and one out-^lot, No. 20, containing four acres, situate in the town of Cincinnati, held by purchase from and under the proprietors of the town. In which lots William Woodward is entitled to three-eighths parts;
    
      Abigail, wife of said William, to one-eighth part; Hepsibeth Foster and Seth Cutter, both of the town of Cincinnati, are each entitled to one-eighth; Abigail Pillsby and Mary Cutter, both of Massachusettsr are entitled to one-eighth part, for which petitioners ask partition, etc.
    William Woodward,
    Abigail Woodward,
    Samuel Foster,
    Hepsibeth Foster,
    Samuel Cutter,
    Att’y for Mary Cutter.”
    The proceedings under this petition were examined by this court,, and most questions arising under it were settled in the case reported, in 8 Ohio, 87. In these suits it remains to determine whether Mrs.. Pillsbury and Mrs. Sargeant were parties so as to bind their respective, shares.
    Y. Worthington, J. C. Wright, and T. Walker for plaintiffs,, made the following points :
    1. That the proceedings in partition do not bind Mrs. Sargeant, as-she was no party to the record, except through the agency of Samuel Foster, who shows no authority to act for her. No one can be bound, by the acts of another without his consent. The case in 3 Ohio, 521, extends no farther than to hold parties bound by the acts of attorneys at law. Cutter was not an attorney at law, and his authority as an attorney in fact, if it existed, should form a part of the proceedings.
    2. As to Mrs. Pillsbury, the proceedings in partition were not. against her. She was no party, had no notice, and can not be bound by them. The partition law required the petition to set forth the. name and residence of each co-tenant, and forty days’ notice by personal service or publication before the term of the court, ordering partition. In this case the petitioners profess to know all the parties,, and it does not lie with them to say they brought an improper party before the court by mistake, and that thereby they conclude the real, party in interest.
    3. Silas Pillsbury, the husband, should have been made defendant,, either alone or with his wife, to bind her interest. In 8 Ohio, 87, this court determined that a tenant by curtesy could make partition, and. was the proper party to such proceedings.
    4. The proceedings do not show that any deed has been executed to-Woodward under the partition, and therefore no title passed. 5 Ohio, 455.
    
      5. In no event can Silas Pillsbury’s interest, as tenant by the curtesy, be affected by the partition. He had a life estate, 4 Ohio, 170, and was no party. His death since this suit was commenced, does not destroy, the right to recover; that remains, to secure the mesne profits up to his death. 2 Ohio, 304; 3 Wheat. 212.
    D. Van Mater, for defendants,
    insisted, the partition proceedings sufficiently find Samuel Foster’s power to act as the attorney for Mary 'Sargeant, and conclude her. The power of attorney no more than the ■deeds, or other muniments of title, go into the record. But she is •named in the petition as owner of an eighth, and notice published, which is sufficient to bind her even if Cutter had no power. This -applies equally to Mrs. Pillsbury. Notice was ordered by the court, and the cause continued for that purpose, and must now be presumed •to have been proven.
    The naming Abigail Pillsbury as the owner of one-eighth, and •stating her residence in Massachusetts, complies with the law, though •she is not described as wife of Silas Pillsbury, and the publication so made would advise him sufficiently to take care of his rights. When •sold he had a right to take his proportion of the money. Less strictness is required in partition than in other cases, the object being merely to apart to each of several owners of land his portion of it. But it is said that Mrs. Pillsbury was not a party to the petition, and is not bound by the sheriff’s deed. The objection rests upon a mere mistake in spelling the name, Pillsby instead of Pillsbury. It was Mrs. Pillsby who was the daughter of John Cutter who was described, .and sufficiently so to prevent all misunderstanding, as to who was •meant. Besides the name is spelled as it is generally pronounced. If there be a misnomer, the party can not avail himself of it in this collateral way.
    B. Storer and C. Fox, same side.
   By the Court,

Lane, C. J.

In adjudicating upon transactions occurring in the early settlement of our state,.we must never forget the absence of precedents and system, the different usages introduced 'by people emigrating from every part of the country, the want of knowledge or neglect of technical learning, and the risk of loss of evidence from the lapse of time. Hence errors of form have always been overlooked, where the acts of a court are manifest, and its jurisdiction established. 3 Ohio, 273 ; 6 Ohio, 255.

The petition in partition is very loosely drafted. The land is well ^described, but the name Pillsbury is spelled Pillsby, and no-notice is taken of her husband, although then alive. The non-joinder of the husband, who then held a freehold in the wife’s land for their joint lives, and a contingent tenancy by curtesy, left his rights unim- > paired. By his decease, this estate is ended, and the wife is bound by a decree against her, until reversed, because a judgment or decree against a femme covert is voidable only on error.

It is not every mistake in names which will invalidate an instrument, or proceeding. This effect will follow where the person can not be-identified, .or where the error is such as to describe another. But words are intended to be spoken; and where the sound is substantially preserved, bad spelling will not vitiate. I remember a case where a lessor in ejectment recovered in the name of Puthuff under a deed to-his ancestor in the name of Biddulph, by proving that Biddulph, Bottolph, Potherf, and Puthuff, were different modes of spelling thenaipe of the same person. In the case before us Pillsby and Pillsbury differ little in sound, in familiar conversation, especially when pronounced with the rapidity of utterance usual among the people with whom she then lived. In the statute proceedings for partition, which only define existing rights, without creating new ones, and are not regarded adversary, but' analogous to proceedings in rem, 6 Ohio, 269, the co-tenant against whom partition is demanded, is not strictly a party. Where he lives beyond the jurisdiction of the court, the publication of notice of the pendancy and objects of the petition, is all which is required. We find, in the case before us, sufficient evidence-of notice that a petition was pending, to divide lot 92 and out-lot 20, in Cincinnati, belonging to the late John Cutter of Cincinnati, of-which Abigail Pillsby of Massachusetts was entitled to one-eighth. Enough is shown to apprise her of her rights and to bind her by the-decree of partition.

The objection to the operation of the decree upon Mrs. Sargeant’seighth is, that no authority appears on the record for Samuel Foster to institute these proceedings as her attorney in fact. The authority of an attorney at law'is presumed. 3 Ohio, 521. The power of an attorney in fact, should be shown by proof, but where a court of general jurisdiction is required to exercise its powers upon a state of facts to be proved before it, the requisite proof is presumed to have been made, and the existence of the fact can not be afterwards collaterally questioned. 2 Pet. 163, 449 ; 3 Ohio, 257, 560 ; 6 Ohio, 255; 7 Ohio, 259 ; 8 Ohio, 87. The defendants may take judgment.  