
    *Lessee of Glover’s Heirs v. William Ruffin.
    Held, that the recital in a deed made under an order for partition, of the term when the order was made, is not conclusive, hut may he explained hy proofs.
    Held, also, that in the case of an order for sale of real estate, on petition for partition, under the act of 1810, the proceeding being in rem before a court of competent jurisdiction, it must he presumed that the court made the order on a state of facts-being proved that gave jurisdiction and authorized the exercise of it.
    This cause was adjourned from the county of Hamilton. The lessors of the plaintiff claimed the premises in dispute as heirs at law of Elias Glover, deceased. The defendant claimed under a sale made by order of the court of common pleas of Hamilton county, upon a petition for partition among the heirs at law of the said Elias Glover, deceased. The validity of that sale was the matter presented for decision. At the trial, before the Supreme Court in Hamilton county, the plaintiff proved title in and possession by Elias Glover in his lifetime, and that the lessors of the plaintiff were his heirs at law. The defendant then offered in evidence proof of certain proceedings, in partition between the heirs at law of Elias Glover, before the court of common pleas of Hamilton county, resulting in a sale of the premises in question, under which the defendant deduced title to himself. The counsel for the plaintiffs objected to these proofs being received in evidence, but the court overruled the objection, and the proofs being admitted, a verdict was rendered for the defendant. The plaintiffs moved for a- new trial, on the ground of error in admitting the evidence, and this motion was reserved for decision in this court.
    After the reservation of the cause upon this point, the plaintiffs alleged the discovery of new testimony, as an additional ground for- a new trial.
    
      The pr*oofs offered by the defendant, which were objected to, but received, consisted of a transcript of certain proceedings of the court of common pleas of Hamilton county, of which the subjoined is a copy:
    
      “The State of Ohio, Hamilton county, set.
    
    
      “ To the honorable the judges of the court of common pleas, within and for the county of Hamilton;
    “ The petition of the subscriber, who is a brother and one of the heirs at' law of Elias Glover, Esq., deceased, respectfully showeth 256] that the said Elias, who died intestate and ^without issue, was at the time of his death seized in his demesne as of fee of and in the following lots and tracts of lands situated in the town of Cincinnati and county of Hamilton, that is to say, lot No. 292 and lot No. 168, as the same are numbered and known on the plan of the said town, each containing seventy-two square perches, and also a part of lot No. 284, being thirty feet in front and seventy-two and one-third feet in depth; and your petitioner further states, that the said Elias left seven brothers and sisters, some of whom are under age, all of whom are living and are the heirs at law of the said Elias, to wit: Jerusha, married to Daniel Ferris; Esther Ann, maried to Amos Griffin ; Polly, married to Samuel Shepherd; Cyrus, Arnold, Naomi, and Daniel; and your petitioner prays that the partition may be made of the premises above described, and that his proper proportion thereof may be set off and assigned to him in severalty, and your petitio ner as in duty, etc.
    “ Cyrus B. Glover.
    “ Which said recited petition being read, and no objection being made, and the court being of opinion that the said petition is reasonable, court appoint Joseph Carpenter, Thomas Dugan, and Joseph Conn as commissioners to make partition.
    “ And an order for partition accordingly issued, clothed in the following words and figures, to wit:
    “ The State of Ohio, Hamilton county, set.
    
    
      “ To Joseph Carpenter, Thomas Dugan, and Joseph Conn greeting :
    “ Whereas, a petition was presented to the court of common pleas for the county aforesaid, at April term, 1812, in the words following, to wit: (Hero follow the petition, etc., as before recited.)
    “ It is ordered that you be appointed as commissioners to divide and set off the petitioner his share as aforesaid, and that you in all things be directed and carefully observe the requisitions of the act, entitled, ‘an act for the proving and recording wills and codicils, defining the duties of executors and administrators, the appointment of guardians, and *the distribution of insolvent [257 estates,’ passed by the legislature of the State of Ohio.
    “In testimony whereof, I have hereunto set my hand and affixed the seal of said court, at Cincinnati, this 7th day of April, 1812.
    [L. B.]
    “John S. Gano, Clerk.
    
    ‘[Which said order was afterward duly returned with a report thereon, clothed in the following words and figures, to wit:
    “ The undersigned auditors having viewed the within mentioned lots, are of the opinion they can not be divided into seven shares.
    “ J. Carpenter,
    Thomas Dugan,
    Jos. Conn,
    
      "April 8,1812. Auditors.
    
    “Whereupon court order administrators to sell, and an order for sale issued, which is clothed in the words and figures following, to wit:
    
      “The State of Ohio, Hamilton county, set.
    
    “ To Daniel Symmes, Esq., administrator of the estate of Elias Glover, deceased:
    “Whereas, on the petition of Cyrus B. Glover, a brother and an heir of the estate of said deceased, praying that a partition might be made of the following described lots and tracts of lands, situate in the town of Cincinnati and county of Hamilton, that is to say, lot No. 292, and lot No. 168, as the same are numbered and known on the plan of the said town, each containing seventy-two square perches; and also a part of lot No. 284, being thirty feet in front,'and seventy-two and one-third feet in depth; the said petition being read, and the same being thought reasonable, it was ordered, that Joseph Carpenter, Thomas Dugan, and Joseph Conn, who were appointed commissioners, should view and make partition of the said premises as above described, upon which order so to them issued, they returned that they have viewed the above-mentioned lots, were of opinion that they could not be divided into seven shares without a material injury, and reducing the value thereof. Therefore, you are hereby directed and 258] ^ordered to proceed and sell the said or above-described property or estate at public vendue to the highest bidder; and that you in all things be directed by and carefully observe the requisitions of the act, entitled, ‘an act for the proving and recording wills and codicils; defining the duties of executors and administrators, the appointment of guardians, and the distribution of insolvent estates,’ etc., passed by the legislature of this state on Eebuary 10, 1810.
    “By order of the court.
    “ In testimony whereof, I have hereunto set my hand and affixed the seal of our said court in Cincinnati, this 10th day of April, a. d. 1812.
    [l. s.] “John S. Gano, Oik. O. O. P. S. 0.”
    
    And also a deed from Daniel Symmes, administrator of Elias Glover, deceased, conveying the premises in question to John Andrews, commencing with the following recital:
    “This indenture, made this 7th day of April, in the year 1814, between Daniel Symmes, administrator of the estate of Elias Glover, deceased, in pursuance of an order of the court of common pleas of the county of Hamilton and State of Ohio, at the April term, 1813, directing the said administrator to make sale of the real estate of the deceased, as by reference to the records of said court will fully appear,” etc. And a duly executed conveyance of the premises in dispute from John Andrews to the defendant.
    Morris and Drake, for a new trial:
    1. The verdict is against law.
    2. The verdict is against evidence.
    3. The court admitted illegal and improper evidence, which ought to have been rejected, to go to the jury.
    4. The plaintiffs allege, that the said certified copy of the proceedings of the court of common pleas of the term of April, 1812, sets forth and contains proceedings that do not appear to have been had, and which were not had at the said April term, 1812, which fact has been discovered by the plaintiffs since the trial; as will appear by a certified transcript of the proceedings of the said court at said term, had on said petition for partition, made by William H. Harrison, the clerk oí said court, and herewith filed.
    
      *On the minutes of the court of the term of April, 1812, [259 there is among the proceedings of the 7th day of April, the following entry, to wit:
    “ Petition of the heirs of Elias G-lovor, deceased, praying for partition of the real estate. Court appoint Joseph Carpenter, Thomas Dugan, and Joseph Conn, to make division and report,” etc. Immediately under the above entry, by way of interpolation, and on the same page, there is written the following words: “ Order issued April 7, 1812, returned that property could not be divided, and court ordered the administrator to sell — order for sale issued to administrator.”
    These are the only entries made on the subject at April term, 1812, and the whole of them are made on the same page and among the proceedings of April 7, 1812, of said court.
    By the certified transcript last referred to, it appears that the-petition was filed on April 7, 1812; and that the order or writ issued to the commissioners, by the clerk of said court, bears date April 7, 1812; the return made and assigned by the commissioners appointed to make partition bears date April 8, 1812. The order issued by the clerk of the court to the administrator bears date April 10,1812; so that the interpolation made as aforesaid must have been made by the clerk or some other person, without any authority from the court, after April 10., 1812. It could not have been made-on the 7th of April, the day on which it purports to have been made. The men appointed to make partition did not make their return until April 8, 1812; and until the return was so made, the-court had no power to make an order for sale. And it is equally clear from the face of the proceedings that the entry or interpolation was made after April 10, 1812, the date of the order that was issued to the administrator by the clerk to sell, inasmuch as-the entry refers to it. If we are correct in this, there is no order of April term, 1812, directing the administrator to sell by the authority of the court.
    Why it was that the dates were omitted in the certified transcript of the proceedings produced in evidence by the defendant, we can not undertake to say, but that there is a material difference between the transcript and the entries on the minutes is-certain.
    *But suppose, for the sake of argument, that the whole [260' entry was made on April 7,1812, still it does not help the matter,. as until the return of the commissioners appointed to make partition, which was not made until the 8th, the court had no power to make an order of sale, and an order so made would have been & nullity. If the entry was made after the 7th by the clerk or some other person, without the authority of the court, it would also be a nullity; give the defendant, then, either horn of the dilemma, and he can not escape from the fatal difficulty.
    There is another objection to these entries. They are vague, uncertain, and unintelligible. They contain none of the names •of the parties to it, nor any description of any real estate whatever ; no order is made for partition, nor is there any reference made to any paper or document, by which anything like certainty is given to them.
    The clerk of the court, it is true, has attempted to give something like a meaning to them, by appending thereunto a petition ■of Cyrus B. Glover against the other heirs of Elias Glover, deceased, and the two orders issued by the clerk under that petition, in the certified transcript produced, on the trial, by the defendant. But entries by themselves do not confer authority upon the administrator to sell. Can the act of the clerk give to them any additional force ? Every entry on the minutes of the court should be complete in itself; they only are evidence of the acts of the ■court, and if void of themselves, the clerk by alteration or attempt to explain them, in making his record, can not make them valid. Destroy the petition, and the two writs issued by the clerk, contained in the transcript, and who would understand the meaning •of the entries on the minutes to be an order to sell lot No. 168 ?
    In April, 1812, at the time these proceedings were had, there were two separate statutes in force in this state, on the subject of partition of real estate. The one, an act entitled an act to provide for the partition of real estates, passed February 1, 1804, which may be found in 1 Chase’s Stat. 402.
    The other, sections 37 and 38 of the statute for proving and recording wills, codicils, defining the duties of administrators and 261] executors, and appointments of guardians; and the *distribution of insolvent estates, which may be found in 1 Chase’s Stat. 63, 64, and passed February 10, 1810.
    These statutes differ materially in their provisions and requisitions. In the orders issued by the clerk, the statute of 1808 is referred to as the one under which the proceedings were had, This, however, was the mere act of the clerk, who was not •authorized to determine the question. With this exception, there is nothing that would authorize the reference of the proceedings to the act of 1810.
    By the petition, it does not appear that Cyrus B. Glover, the petitioner, was of full age, or that any one of the heirs of the ■deceased were minors; nor does it appear by the entries, that any proof, to that effect, was made to the court, or that any one of the requisites of sections 37.and 38 were complied with, so as to give the court jurisdiction under this statute.
    If the necessary facts are not disclosed by the petition and •entries, to give the court jurisdiction under the statute of 1808, the proceedings must have been under the statute of February 1, 1804, not one single provision of which, except the filing of the petition, was complied with. No notice was given to the defendants in said petition ; no appraisement was made of the premises; under this act, the order of petition should have been issued to the sheriff of the county, and not the administrator. In any ■aspect in which it is viewed, we think the proceedings of April term, 1812, can not be maintained as giving to the administrator any power to sell the lot in question.
    Again, we contend the defendant was bound to produce the order .of the court, recited and referred to in the deed of the administrator, Symmes, to Andrews, under which, by the terms of the deed, the administrator assumed to act, without which the deed was a nullity and wholly inoperative. By the recital, the administrator assumes only to act under an order of the court of common pleas of Hamilton county, made at the term of April, 1813, “ directing him to sell the real estate of the deceased.” On the face of the deed there is no pretense of any other authority.
    Can the recital in the deed of the order to sell be contradicted or explained, and a different authority be substituted for it, so as to give the deed validity? It seems to us that this would be opening the door to a most dangerous ^principle. If you [262 can contradict the power under which an officer assumes to act. and substitute another authority in its place, you may, on the same principle, explain away the plain, literal import of every deed, and give a totally different meaning and effect, from the expressed intention on its face. The administrator has no beneficial interest in the land of his intestate. He may be authorized to sell under the law, by pursuing its provisions. There is no equity attaching as against the estate, unless the provisions of the law are pursued, even though a sale is made and a full consideration paid. In this respect, his deeds stand on the same footing with sheriffs’ deeds.
    A sheriff’s deed can not be given in evidence without the production of the judgment, levy, and 'execution, under which he-assumes in and by the deed to act. They are, in the eye of the law, the basis of the title, and withoiit them the deed is a nullity. In order to apply the doctrine of misrecitals to the case under consideration, we will put a case. Land is levied on and sold under a judgment of April term, 1812, of the court of common-pleas of Hamilton county, and at the same time, the sheriff has another execution against the same defendant in favor of a different party, which he fails or is directed not to levy; he sells under the junior judgment, and makes a deed to the purchaser, which recites the junior judgment, levy, and sale. The purchaser pays his money and accepts his deed. Now, suppose that prior to such junior judgment, the execution defendant sells and conveys-to a bona fide purchaser; now, in an action of ejectment between the two purchasers, could the purchaser under the junior judgment say and prove that there was a misrecital in his deed, and show the judgment of a prior date to the sale and deed from the execution defendant; and that the execution upon the same was in the hands of the sheriff as above stated, upon which he might have-levied, but did not? We think it can not be doubted for a moment that this could not be done. • The judgment and execution are the foundation of the sheriff’s title-in the one case, and the order recited in the administrator’s deed the foundation of the other case; and the deed is the best evidence of what judgment or order the administrator and sheriff acted under in making the sale. If the judgment or execution, under which the sheriff assumes to act, is a nullity, or if there is no such judgment as the 263] one *he assumes to act under, he passes no title by his sale and deed; and we can not perceive any good reason why the same should not hold as to the administrator’s deeds. Can the fact, that there was an order in existence authorizing the administrator to sell, warrant the presumption by the court, against the express declaration in the deed, that the administrator acted under that order ?
    
      N. Wright, Storer, and Fox, for defendant:
    The*case presents, when all the objections raised by the plaintiff to the defendant’s title are examined, two points:
    1. Was the order properly obtained, and did the statute authorize the act of the court?
    2. Was the order properly executed?
    The order was made pursuant to the administration law of February 10, 1810,1 Chase’sStat. 683, as appears by the order itself, and while the act was in force. By the provisions of that statute, the heirs of an intestate may apply for partition, and if the application, to use the language of the section, “ is reasonable, and the •court are satisfied of the facts con tained therein,” the prayer may be granted. Sec. 37.
    It is in evidence that one of the heirs filed his petition — the names of the others were inserted, some of whom are alleged to be minors, as is also proved in this case — and the fact of the death, ■seizin, etc., of the intestate averred. It is also in proof that the court acted on the petition, appointed commissioners to make partition, who reported that the property could not be divided, and therefore assessed its value. On this return the court again acted, and ordered that the administrator proceed to sell the same -in the mode pointed out in the statute.
    On this view of the case, we take it for granted, that everything •that the law required should be proved before the court acted, must be held to have been proved, and the order or judgment of the court must stand, and can not be collaterally impeached. 3 Ohio, 357, 560, 561; 4 Ohio, 130; Thompson v. Fowler, 2 Peters, 163; Rickard v. Williams, 7 Wheat. 59; Moore v. White, 6 Johns. Ch. 387; 11 Serg. 429 ; 6 Id. 184; 14 Id. 184.
    The fact whether notice was given, or proof made, or the matter presented furnished sufficient evidence for the judgment of *the court is not now to be discussed. If, however, an in- [264 -quiry were permitted, we would insist that there is:
    1. A statement in the petition that some of the heirs are minors ; ■and if it was a material averment, it was unquestionably proved. But suppose it was not proved, the judgment is good until reversed —the court had jurisdiction, and that is sufficient for the pur■chaser.
    2. If notice to the heirs was necessary, still the same presumption of its having been given exists; but under the law of 1810, no such notice was necessary. Previous to the year 1822, the-heirs of an intestate were never made parties to a petition for the sale of land; the stature did not require it should be done in terms,, and the theory on which the lands of deceased persons were subjected to sale did not make it necessary. The seizure and condemnation of real estate, by the probate court, were assimilated to-the proceedings in courts of admiralty, or of the exchequer, and were regarded as being in rem altogether — the heir having the-right to make himself a voluntary party to the application. Scott’s Pet. v. Hancock, 13 Mass. 166; Ruliff’s case, 1 Id. 240; Repub. v. Rham, 2 S. & R. 269; McPherson v. Cunliff, 11 Id. 428,, Milnor v. Peters, 1 Peters, 269.
    But if a notice was requisite, it is obvious that no process or 'particular form of notice is required by the statute; and that, if given, it would not necessarily form any part of the record to be preserved. It would stand like any other item of proof in the cause,, to be made to the court, in such way as they might require. It is-always presumed that a court of justice has before it all the necessary proof to warrant their judgment. The verity of every decision rests upon this principle; without it, not one adjudication in a hundred could be sustained. It was long a common practice, in proceedings under the partition law, to make the proof of notice-in open court, at the time of presenting the petition. Such proof might or might not be entered of record, and might or might not be a cause of error, if omitted; but the want of it could not make the adjudication void. The court was competent to keep its own records, in.its own way, and to judge of the proof on which it. 265] made its orders; and, having judged, this *eourt, twenty-two years after, not sitting in error, can not reverse them. Jennings v. Carson, 4 Cranch, 25.
    An ordinary record of a judgment by default, aside from our-statute, shows no notice to the defendant, and the validity of such a judgment rests upon the above principle.
    In Brown v. Wood, 17 Mass. 72, a case of probate of a will, the statute expressly required notice to the heirs, and no such notice appeared among the proceedings; but the court held that the notice must be presumed, on the principle above stated.
    Even if these proceedings were not valid to bind all the heirs,, they are certainly valid to bind Cyrus B. Glover, who filed the; petition; and he or his heirs being joined in this demise, there can be no recovery.
    3. As to the points whether an appraisement was made previous to the order of the sale, and if made, whether it was conducted as the statute requires, sufficient answer is found in the principle already alluded to, “ omnia prcesumitur bene, et rite acta sunt.” If error should appear, it can not avail the plaintiff in this contingency. All that can be asked is, had the court jurisdiction of the subject matter? Should this be admitted, the mode by which the court came to their conclusion can not be questioned. If they erred in making an order of sale, without sufficient proof on which to found that order, it might, perhaps, have been a cause of reversal on error; but this court are not now sitting in error on those proceedings. Even the erroneous proceedings of a sheriff, a mere ministerial officer, will not defeat his deed, but everything will be presumed to have been regular (Allen’s Lessee v. Parish, 3 Ohio, 190); much less can the judicial errors of a competent court defeat a title made pursuant to its adjudications.
    But, in addition to this, we say that no appraisement was required in the case by law. Neither the administration law of 1810, nor the general partition law in force at the time, required any valuation with reference to the sale. The valuation provided for in • the latter of those statutes was merely to fix the price at which one of the parties might take the property, not to regulate the sale; neither of those statutes limited the sale to any particular proportion of the valuation. In the administration law no provision was made for either party to take-the property; of course no valuation was necessary, and none was provided for.
    *But was the order properly executed? It is said it [266 should have been directed to the sheriff; but the statute is express ' that it shall be the duty of the administrator to sell, and if it were otherwise it was only an error of the court, and did not affect the purchaser’s title. If so, did he perform the service ? No proof of the sale need now be required, other than what is afforded by the deed. All the stops between the granting of the order and the execution of the deed, whether they are the notices, or the mode of sale, or the compliance of the purchaser with its conditions, are to be presumed to have been pursued. In the case of Allen’s Lessee v. Parish, 3 Ohio, 191, the point, as it regards a sheriff’s sale, was fully settled. “The purchaser,” says the court, “depends upon the judgment, the levy, and the deed; whether the officer sell before or after the return, whether he makes a correct return, or no return at all to the writ, it is immaterial, provided the writ was duly issued, and the levy was made before the return.” This is but the language of the Supreme Court of the United States, in Wheaton v. Sexton, 4 Wheat. 503.
    So in New York: Jackson v. Bartlett, 8 Johns. 284; Jackson v. Robins, 15 Johns. 537; Heister v. Fortune, 2 Bin. 46.
    See also Lessee of Goforth v. Longworth, 4 Ohio, 129, where it is said public policy requires that presumptions should be made in support of sales, especially respecting matters in pais; and it is now well settled that a liberal construction is given to statutes authorizing sales of real estate by executors and administrators.
    If the order is regarded as valid, and the deed and the possession under it held to furnish evidence of the sale,.a question is still to be discussed whether the deed is sustained by the order, as the recital does not correspond with the actual date of the order relied on. We hold it to be settled law that no recital of the power of the trustee need appear in the instrument executing the trust. 3 Ohio, 326. The matter is in pais, and can be proved aliunde. Hence, if the recital is unnecessary, a reference made to a paper or a fact, which proves to be mistaken or erroneous, may be rejected as surplusage. Cleve’s case, 6 Co. 17; 4 Cruise, 44; Powell on Powers, 111, 126; Sugden on Powers, 292. This rule is adopted by the courts of equity in England, and is sustained by the decision of our own court. 2 Sch. & Lef. 404; 3 Johns. 267] *Ch. 551; 10 Ves. 257; and the rule itself is nothing more than giving effect to the intention of the parties, “ut res magis valeat quampereat.”
    The general principle being established, let us apply it to the present case. The deed refers to an order of April term, 1813, when the true date should have been April term, 1812, and it is thereupon contended that the conveyance is void.
    The statute-of 1810 mentions no form of the deed, the administrator or executor is authorized generally to convey. If the instrument contained no recital, we should then have been required to exhibit an order, and there could be no just objection; but as it is, we do not doubt the difficulty may be easily obviated.
    Thus, in Lessee of Mathers v. Thompson, 3 Ohio, 274, a variance between the levy on an execution, and the description of the land in the deed, may be explained by parol.
    In Jackson v. Streeter, 5 Cow. 629, it was held that the misrecital of the date of the judgment in the sheriff’s deed was not material, provided it appeared that there was a subsisting judgment and execution. So in Jackson v. Walker, 4 Wend. 264; Jackson v. Pratt, 10 Johns. 381; Jackson v. Davis, 18 Johns. 9; 9 Cow. 182. And this court have always acted on the same principle with regard to sheriffs’ and marshals’ sales. Hence, if the deed recites a judgment for more or less than the true amount, the court permits the party to show by parol that the levy and sale was in fact made on a judgment of a different amount. None of the sales made by the marshal of Ohio could be sustained, were this practice not allowed; for all their executions embrace the increased costs, and hence every execution recites a judgment for a different amount, although all issued in one suit. In the present case, we proved by the man who drew the deed that the administrator directed him to draw the deed, because he had sold the lot to Andrews. There is no pretense that the lot was not sold on the order of the court, nor that there was any order of the court in 1813. The order is so referred to as to make it a part of the deed; the year was immaterial, as the reference would have been perfect without it. The use of the recital of such a power is merely to show, unequivocally, that the grantor intends to act by virtue of a power, and not by virtue of an interest; of course a misrecital can not be material; the law will refer the act to *the power [268 wherever it can be made applicable. On this point, we ask leave to refer the court to the cases cited in argument for defendants in Ludlow’s Lessee v. Parks, 4 Ohio, 7, and also 4 Wend. 462, 585, relating to executions.
    We differ with counsel as to there not appearing of record sufficient facts to give the court jurisdiction. It does appear Elias Glover died seized of lot No. 168. It does appear that Cyrus B. Glover was one of his heirs. It does appear there were six other brothers, some of whom were minors. It does appear said E. Glover died intestate. Nothing else, certainly, is required to give the court jurisdiction under the act of February 10, 1810. 1 Chase Stat. 683.
    But it is said no proof of these facts. appears in the record. There is the same proof that appears in any case; the judgment of the court is evidence of it. Whether there was any minor among the heirs was a question which naturally arose in the cause, and the decision of it concluded all concerned until reversed. The adjudication upon every other fact in the cause was of the same character. Dabney v. Manning, 3 Ohio, 325; Goforth v. Longworth, 4 Id. 130.
    This case also disposes of another question raised, viz: that the order of sale should have been directed to the sheriff and not to-the administrator — it is only error. But the statute of 1810 expressly requires the order to issue to the administrator.
    It is said the proceedings are void, because the other heirs were not served with process-such we conceive is not the law in cases of partition. A suit for partition is not considered an adversary suit. It is a mere substituting of a definite portion of an estate for an indefinite interest in the whole.
    Where the statute authorizing the proceedings does not require service of process, the judgment of partition can not be declared void. 5 Bin. 1.
   Judge Lane

delivered the opinion of the court:

The leading question in this case is, do the recorded proceedings, of the court of common pleas of Hamilton county show the facts necessary to invest that court with jurisdiction to order the sale of the premises under which the defendant claims?' 269] *The plaintiffs show a complete title, unless it has been legally transferred from them in the manner alleged by the defendant.

The act of February 10, 1810, section 37, provides for partition in. cases where an intestate leaves lands and heirs part over age and part under, and authorizes the heir.of full age to petition for partition. After specifying the facts necessary to be set forth in the petition, the act proceeds: “Such court, if they are well satisfied in the proof aforesaid, and are of opinion that the petitioñ is reasonable,shall appoint,” etc. It then provides (sec. 38) that if the person appointed, report that the lands can not be divided with advantage, “ the court shall order and direct the administrator, etc., to sell such estate to the highest bidder,” etc.

In this case we have the petition for partition. It distinctly alleges that E. Glover died intestate, seized of the premises in question, and that he “ left seven brothers and sisters, some of whom are under age,” etc. The transcript of the record contains the adjudication of the court, “ which said petition being read, and no objection being made, and the court being of opinion said petition is reasonable, court appoint J. 0., etc., commissioners-to make partition.” A transcript of the order to the commissioners is given, and their return that, “ having viewed the within-mentioned lots, they are of opinion they can not be divided into seven shares.” The transcript proceeds: “ Whereupon court order administrator to sell, and an order of sale issued,” etc.

It is objected to these proceedings that it does not appear, by the petition or otherwise, that the petitioner for partition was of full age; and this, it is agreed, is indispensable to sustain the jurisdiction of the court. We do not think so. The fact that part of the heirs were of full age and that part were minors is indispensable to authorize the proceedings and sale. The petition is to be preferred by an heir of full age. This petition recites that a part of the heirs were minors. The court proceeded upon proofs, and we hold ourselves bound to presume that the proofs produced satisfied the court that the petitioner was of full age. The petition assumes this fact, and as to the authority of the court to take any order upon it, under the statute, depended upon its existence, a presumption can not be raised that the court proceeded without the requisite proof.

*In the ease of Thompson v. Tomlie, 2 Peters, 164, 165, [270 this point was adjudged in the Supreme Court of the United States. The question there arose under a law of Maryland, in this particular very analogous to the law of Ohio. It was a sale upon petition for partition, which could only be made where part of the heirs were minors and part were of full age. An exception was taken that this fact did not appear on the proceedings, and proof was adduced to show that at the time of the sale the heirs were all minors. This proof was held inadmissible, and with respect to the allegations of the petition, the court say: “ From what is stated it may reasonably be inferred that it appeared before the court that one of the heirs was of full age. The petition presented to the court for the appointment of commissioners, and which was the commencement of the proceedings, in setting out the parties interested, states that Robert Tomlie died intestate, leaving the following children and heirs at law, viz: Margaret, since intermarried with Francis Beveridge, and Alice Tomlie and James Tomlie, which said Alice and James are infants under the age of twenty-one years. Why specially allege that these two were minors, if Margaret was also a minor? Every reasonable intendment is to be made in favor of the proceedings, and their allegation in the partition will fairly admit of the conclusion that the petitioners intended to assert that Alice and James only were under age. The age of the heirs was, at all events, a matter of fact upon which the court was to judge, and the law nowhere requires the court to enter on the record the evidence upon which they decided that fact. And how can we now say but that the court had satisfactory evidence before them that one of the heirs was of full age ?"

It appears to us that this reasoning applies strongly to the case before us. We therefore adopt it; and our conclusion consequently is, that a case of jurisdiction, in the court of common pleas, to order the sale of the real estate in question, is sufficiently shown. That point being established, it is well settled that errors ■or irregularities in the proceedings do not vitiate the final decision, and that if such exist, they can not be noticed collaterally.

It is objected that no notice is shown to have been given to the coparceners. The law does not require such notice to be given. It seems to have been the policy of the law to regard a decedent’s 271] estate as subj ect to the court of ^probate, as well as for distribution among heirs, for the payment of debts. Judicial proceedings, in such cases, were in rem,*and intended to bind all parties in interest. 13 Mass. 166; 17 Id. 32; 11 Serg. & R. 428.

It is alleged, as an objection to the validity of the sale, that no appraisement, such as the law required, was made. The act of February 10, 1810, under which the sale was made, does not require an. appraisement. But if such were the requisitions, the appraisement would be a matter in pais, the proof of which we would certainly presume. Indeed, upon the authority of the case ■of Thompson v. Tomlie, before cited, we should eyen refuse to receive evidence to establish the contrary.

The administrator’s deed recites a sale made under an order of court of April, 1813; and the plaintiffs insist that this recital precludes the defendant from resorting to the order of 1812, to support his deed. We do not think so. The order clothed the administrator with power to sell. The deed is evidence of the sale under the power; but it was not necessary that it should be recited in it. A misrecital, when it is not an essential part of the conveyance, may be corrected. And, in this case, a majority of the court are satisfied that the proofs show that the sale was, in fact, made under the order of April, 1812.

A suggestion of newly discovered evidence is made, and a new trial asked upon that ground. In actions of ejectment, where the verdict is for the defendant, it is rarely set aside for newly discovered testimony. 5 Ohio, 248. No rights are affected, and the plaintiff can bring a new suit and prosecute it with as little prejudice, as it could be retried if a new trial were granted.

Judgment on the verdict.  