
    Robert Buchanan v. Sarah Roy’s Lessee.
    Tt is by no means clear, that a notice by publication, in a chancery proceeding, to Sarah Bay, without further description or means of identity, can be held to be a notice to Sarah Boy, upon the doctrine of idem sonans. But where the party is described as a widow, as the sole daughter of W. T., deceased, a brother of T. T., and as a resident of the State of New Jersey—■ -all of which particulars were correctly descriptive of the plaintiff’s lessor ; when the names and residence of her near relatives, and their connection with her, are given in the record ; where the premises sought to be affected by the decree are described, and the object of the bill set forth, the error could mislead nobody, and Sarah Boy will be bound by the notice.
    When the court in the chancery proceeding found that notice had been given to the defendant by publication in due form of law, it must be presumed, in the absence of any proof to the contrary, that this notice stated the pendency, objects, and prayer of the bill, and described the persons named as defendants as they were described in the bill.
    'Want of jurisdiction of the cause, equally as much as want of jurisdiction of the person, may render a judgment or decree void.
    A statement in a bill, as a mere legal deduction by the pleader, that the defendants “ are not precluded at law from the possession ” of the premises in controversy, will not prejudice the bill as one quia timet, if it appear from its face, that the complainant had by the length of his possession acquired a valid title.
    The title to or boundaries of land may be drawn in controversy by a bill, though there may be some statement or omission in the bill that renders it obnoxious to a general demurrer. When the defect is not a mere want of equity, but is some fact that precludes the court from entering upon the inquiry whether there be an equity or not—in such a case the effect is fatal to the jurisdiction. But it does not follow in all cases, that there is no jurisdiction because the bill was liable to a general demurrer.
    
      Error to the court of common pleas of Hamilton county, reserved by the district court in that county, for decision here.
    The plaintiff’s lessor was never in the State of Ohio. She was-the widow of Eobert Eoy, and was the niece of Timothy Trimble and sole heir at law of William Trimble, wb»o was a brother of Timothy.
    Her action was brought to recover one-seventh of the one-half part of the tract of forty:two acres of land, situated in section-fifteen, in the third township, in the second fractional range of townships in the Miami Purchase, in Hamilton county, described, in the consent rule and plea.
    The facts of the case, as they appear from the record, are as follows :
    In the year 1806, Timothy Trimble and Thomas McNeal, partners doing business as merchants in the town of Montgomery, Orange county, New York, purchased the whole of section fifteen,, except the forfeiture for about two dollars per acre.
    *In the year 1810, Timothy Trimble died intestate, without issue, seized of an undivided one-half of the land in controversy, leaving seven heirs at law, namely : John Trimble, Alexander Trimble, brothers; Isabella Hill, Elizabeth Hunter, Sarah Comfort, sisters; James King, a nephew, and sole heir of Jane King, a deceased sister; and Sarah Trimble, afterward wife of Eobert Eoy, a niece, and sole heir at law, of William Trimble, a deceased brother.
    Letters of administration upon the estate of Timothy Trimble were issued, by'the surrogate'of Montgomery county, to James King and Nathaniel P. Hill, two of the nephews of the deceased.
    In 1812, Thomas McNeal, the surviving partner, united with James King and Nathaniel P. Hill, in the execution of the following instruments:
    
      To all whom these presents shall come or may concern:
    
    “ We, Thomas McNeal and Nathaniel P. Hill, both of the town of Montgomery, county of Orange and State of New York, and James King, of the city of Albany and state aforesaid, studeat at law, send greeting:
    “ Know ye, that we have constituted and appointed and do hereby appoint Balph Phillips, of the town -of -, county of Hunter-don, and State of New Jersey, gentleman, our attorney, for us and in our names, and to our own use, to enter into agreements for the-sale of the fee simple of all that certain tract or piece of land known .as a certain section of land situated in the Miami Purchase, in the county of Hamilton and State of Ohio, being section No. 15, in township 3, in the second fractional range of townships, containing 640 acres, strict measure, except one-sixth part of said section, which is supposed to have been forfeited, agreeably to the terms of settlement of the Miami lands, published by John Cleves Symmes, at Trenton, in the year 1787, or any part thereof, with .such persons for such sums of money, to be secured and payable at such periods and in such manner as our said attorney shall deem. proper and expedient, and to sign, seal, and ^deliver agreements.in writing of such sales, or otherwise to sell and dispose thereof, and to grant and convey the same absolutely in fee simple for such px’ice or sum of money, and to such person or persons as he shall think fit and proper; and also for us and in our names, .and as our acts and deeds, to sign, seal, execute, and deliver such deeds for the absolute sale axid disposal thereof, or any part thereof, with such clauses, covenants, and agreements to be therein contained, for the fee'simple and warranting the title thereto, as our •said attorney shall deem fit and expedient, and to receive all and every sum or sums of money for the sale and conveyance of the said land, and sufficient discharges and releases to give therefor, hereby ratifying and allowing, and promising to ratify and allow, all that our said attorney shall lawfully do in the premises.
    
      “ In witness whereof, we have hereunto set our hands and seals, this 16th day of September, in the year of our Lord 1812.
    Thomas McNeal, l. s.
    “Nath’l P. Hill, 'l. s.‘
    “James King, 'l. s.’
    Signed and delivered in presence of
    “ Grant Y. Denniston,
    “ John S. Yan Eansselair.
    “Executed by Thomas McNeal and Nathaniel P. Hill, on the :22d day of September, 1812, in presence of
    “ Harry Parrish,
    “ Gilbert Clermont.”
    “ /State of New York, ss :
    
    “Be it remembered, that on the 16th day of September, in the year of our Lord, 1812, personally appeared before me, Isaac Hanson, Esq., one of the masters of the court of chancery for the State of New York, James King, to me well known as the person described in, and who executed the above deed, and acknowledged that he had signed, sealed, and delivered the same freely as his act .and deed, for the purposes therein mentioned.
    “ I. Hanson, Master in Chancery.”
    
      *“ City of Albany, in the State of New York: [l. s.]
    “Be it known, that on the 17th day of September, in the year of our Lord 1812, personally appeared before me, James Yan Ingen, a notary public in the State of New York, duly appointed, commissioned, and sworn, residing in the city of Albany, Grant Y. Douniston and John S. Yan Ransselair, both to me well known, who being duly sworn, deposed that they saw James King, one of the grantors in the preceding deed, whom they know to be the person described in, and who executed the same, sign, seal, and deliver the same freely as his act and deed, for the purposes therein mentioned, and that they are the subscribing witnesses to the said instrument; and also that Isaac Hansom, Esq., above named, is one of the masters of the court of chancery for the State of New York, and is duly authorized, by virtue of his said office, to take the acknowledgments of all deeds and instruments in writing, as required to have their execution authenticated by the judges of the Supreme Court. Whereof act being required, I have granted these presents under my N-firm and seals of office, to serve and avail as occasion may require.
    “This done and passed at the city of Albany aforesaid, this 17th day of September, 1812.
    “Jas. Yan Ingen, Notary Public."
    
    
      "State of New York, ss:
    
    “Be it remembered, that on this 22d day of September, in the year of our Lord 1812, personally appeared before me, Reuben Neely, Esq., one of the masters of the court of chancery for the State of New York, Thomas McNeal and Nathaniel P. Hill, to me well known as the persons described in, and who executed the preceding deed, and acknowledged that they had signed, sealed, and delivered the same freely as their acts and deeds for the purposes therein mentioned.
    “Reuben Neelt, Master in Chancery."
    
    *“ Orange County, in the State of New York: [l. s.]
    “ Be it known, that on the — day of September, in the year of our Lord 1812, personally appeared before me, Aaron Belknap, a notary public in the State of New York, duly appointed, commissioned, and sworn, residing in the town of Newburgh, in the county of Orange, Harry Parish and Gilbert St. Clement, both to me well known, who, being duly sworn, deposed that they saw Thomas McNeal and Nathaniel P. Hill, two of the grantors in the preceding deed, whom they knew to be the persons described in and executed the same, sign, seal, and deliver the same freely as their acts and deeds, for the purposes therein mentioned, and that they are the subscribing witnesses to the execution of the same instrument by the said Thomas and Nathaniel. And also Reuben Neely, above named, is one of the masters of the court of chancery for the State of New York, and is duly authorized, by virtue of his-said office, to take the acknowledgment of all deeds and instruments in writing as require to have their execution authenticated. Whereof act being required, I have granted these presents under my notarial firm and seal of office, to serve and avail as occasion shall and may require..
    “This done and passed at the village of Newburgh aforesaid,, this 22d day of September, 1812.
    “.Aaron Belknap, Notary Public.”
    In 1813, the land being wild and unsettled, Phillips, as the attorney in fact of McNeal, Hill, and King, made the following deed to-Nicholas Longworth:
    “This indenture, under this 7th day of January, in the year of our Lord 1813, between Thomas McNeal and Nathaniel P. Hill, both of. the town of Montgomery, county of Orange, and State of New York, gentlemen, and James King of the city of Albany, and state aforesaid, student at law, by Ralph Phillips, their attorney (legally authorized by power of attorney, and dated on the 16th day of September, in the year of our Lord 1812, as by reference to the said power *of attorney, when recorded in the county of Hamilton, and State of Ohio, will more fully appear), of the one part, and Nicholas Long-worth, of Cincinnati, attorney at law, of the other part, witnessoth that the said Thomas McNeal, Nathaniel P. Hill, and James King, for and in consideration of twenty-two hundred dollars lawful money of the United States, to them in hand well and truly paid by the said Nicholas Longworth, the receipt whereof is-hereby acknowledged, have granted, bargained, sold, conveyed, and confirmed, and by these presents do grant, bargain, sell, convey, and confirm unto the said Nicholas Longworth, his heirs and assigns forever, all that certain tract or parcel of land known as a certain section of land situated in the Miami Purchase, in the county of Hamilton, and State of Ohio, being section No. 15 in township 3, and second fractional range of townships, containing 640 acres, strict measure, except one-third part of said section, which is stated to have been forfeited agreeable to the terms of settlement of the Miami lands, published at Trenton, by John Cleves Symines, 1787, which said sixth part is now reserved and not herein and hereby convoyed, and all the estate, right, title, interest, claim,, and demand of the said Thomas, Nathaniel, and James of, in, and to the said premises hereby granted, and every part thereof, together with all and singular the rights, members, privileges, and appurtenances to the same belonging, or in any wise appertaining, and the rents, issues, and profits thereof, to have and to hold the promises aforesaid, hereby bargained and sold, or meant or intended so to be, with the appurtenances, to the only proper use and behoof of the said Nicholas Longworth, his heirs and assigns forever ; and the said Thomas, Nathaniel, and James, for themselves, their heirs, executors, and administrators, do covenant, grant, and agree to and with the said Longworth, his heirs and assigns, that they are the true and lawful owners of the premises hereby granted, and have good right, full power, and lawful authority to sell and convey the same in manner and form aforesaid; and, farther, that the said Thomas McNeal, Nathaniel *P. Hill, and James King, their heirs, executors, and administrators, will warrant and forever defend the aforesaid premises, with their appurtenances, and every part and parcel thereof, unto the said Nicholas Longworth, his heirs and assigns, against all persons claiming or to claim by, from, or under them, or any of them, or by, from, or under any other person or persons whomsoever.
    “ In witness whereof, the said Thomas McNeal, Nathaniel P. Hill, and James King, by their attorney in fact, Ralph Phillips, as-aforesaid, have hereunto set their hands and seals, the day and year first above written.
    TnoMAS McNeal, s.'
    “Nath’l P. Hill, "l. s.'
    
      “ James King. [l. s.'
    “ By their attorney in fact, Ralph Phillips.
    “ Sealed, signed, and delivered in the presence of
    “Vm. Preston,
    “ Wm, Butler.”
    
      “Hamilton County, Ohio State, ss :
    
    
      “ Personally appeared before me, the undersigned, one of the-justices of the peace in and for the county aforesaid, Ralph Phillips, the person in the above deed named as attorney in fact for the grantors, and acknowledged the above indenture to be his voluntary act and deed, for the uses and purposes therein named.
    “ In testimony whereof, I have hereunto set my hand and seal, at Cincinnati, this 7th day of January, a. d. 1813.
    “ John Mahard. [l. s.]”
    In 1853, Longworth filed in the court of common pleas of Hamilton county, against John Trimble and others, heirs at law of Timothy Trimble, deceased, a bill in chancery, which it is necessary to copy in this place, in order to a right understanding of the decision. The bill is as follows:
    “ To the judges of the court of common pleas of the State of Ohio, within and for the county of Hamilton, in chancery sitting: Nicholas Longworth of the county of ^Hamilton, .■and State of Ohio, represents that Thomas McNeal, Nathaniel P. .Hill, and James King, all of the State of New York, by Ralph .Phillips, their attorney in fact, did heretofore, on or about the 7th iday of January, a. d. 1813, execute and deliver to him a certain •deed in writing, by them acknowledged by their attorney in fact, ■on that day and bearing date on the same day in the year aforesaid, whereby it was intended to convey to your orator, in fee simple, all that certain tract or parcel of land known as .a certain section of land situate in the Miami Purchase, in the county of Hamilton and State of Ohio, being section number 15, in the third township, and in the second fractional range of townships, containing six hundred and forty acres, strict measure, except one-sixth part of said section supposed to have been forfeited agreeably to the terms of settlement of the Miami lands published by John C. Symmes, at Trenton, in the year 1787, as will more fully appear by reference to a deed irom said McNeal, Hill, and King, by said attorney in fact, Ralph Phillips, dated as aforesaid, as per records ■of Hamilton county, in book K, page 453, will appear.
    “ Your orator further represents that said deed to him, from said McNeal, Hill, and King aforesaid, was made by their attorney in fact, Ralph Phillij)s, in pursuance of a power of attorney authorizing him, the said Phillips, to dispose of said property aforesaid, as will appear by reference to said letter of attorney, dated September 16, 1812, and recorded in book P, No. 3, page 108, Hamilton •county records.
    “Your oi’alor further shows that he gave the said McNeal, Hill, •and King, who sold said property aforesaid, by their attorney in fact, Ralph Phillips, a fair and valuable consideration lor said premises, which has long since been paid them ; and that immediately after said conveyance aforesaid, he took possession of said property, and by himself and those claiming under him he has 'held the quiet and peaceable possession ever since; and, until re•cently, has never heard his title questioned, nor was he aware of any defect whatever.
    *“ Your orator further shows that said property was conveyed by one Silas Condict, Jr., of Now Jersey, to said Tbomas McNeal and Trimble, by deed dated May 8,1806, recorded in book R, No. 2, page 245, Hamilton county records; and that said McNeal and Timothy. Trimble went into the possession of said property, .and continued so to hold possession jointly, until somewhere about the fall of the year 1810, when said Timothy Trimble died intestate, leaving his brothers and sisters heirs at law of said property .aforesaid.
    “ Your orator further shows that all the heirs at law of Timothy Trimble, who died seized of the undivided one-half of said prop•erty aforesaid, deceased, being his brothers and sisters, etc., to wit, .John Trimble, Alexander Trimble, Jane King (widow), Samuel .Hunter and Elizabeth his wife, Comfort and Sarah his wife, Isabella Hill (widow), and Sarah Ray (widow), sole heirs at law of 'William Trimble, deceased, then in full life, by their letter of attorney legally executed, empowered Nathaniel P. Hill and James King (who were the administrators on the estate of their deceased uncle, Timothy Trimble) to sell their interest in said property aforesaid, and authorized an attorney under them to dlspo.se of the same. Your orator further shows that the said Nathaniel P. Hill and James King were authorized to sell said undivided one-half of said property aforesaid, by all the heirs at law of said Timothy Trimble, deceased; that they, by virtue of their power under said letter of attorney from said heirs, empowered Ralph Phillips to dispose of said property; but, by mistake, the said Hill and King, as the attorneys in fact of the heirs of Timothy Trimble, .deceased, omitted to execute and make said power of attorney to Ralph Phillips, as aforesaid, in the name and as the attorneys in fact of said heirs of Timothy Trimble, deceased.
    “ Your orator further shows that said heirs of Timothy Trimble, deceased, aforesaid, have long since, through their said attorneys in fact, received the full amount of purchase money for said property sold as aforesaid.
    “ Your orator further shows that, notwithstanding the sale of the property to your orator aforesaid, and the payment of *the purchase money by him as aforesaid, and the receiving of the same by the said heirs of Timothy Trimble, deceased, and the delivery of the deed executed as aforesaid, and the actual possession thereof by your orator and those who claim under him for more than twenty years, yet owing to Nathaniel P. Iiill and James King, attorneys infact for the heirs of Timothy Trimble, deceased, who held the undivided one-half of said aforesaid described premises by mistake in their executing the power of attorney to Ralph Phillips as aforesaid, by not executing the same in the name of the said heirs as attorneys in fact, and owing to some technicality or other of which your orator is not fully advised, that the said heirs at law of said Timothy, deceased, to wit: John Trimble, of Pike county, Pennsylvania; Andrew N. Young and Isabella Young his wife, Chandler and Mary Chandler his wife, Clai-issa Trimble, Adeline Trimble, George Trimble, Sampson and Catharine his wife, and -Murdock and Elizabeth his wife, heirs at law of Alexander Trimble, deceased, brother of Timothy Trimble, deceased, James King, heir at law of Jane King, widow, sister of said Timothy Trimble aforesaid, deceased, Samuel Hunter and Elizabeth his wife, - Comfort and Sarah his wife, Nathaniel P. Hill and Isabella Hill, Charles G. Eowler, Peter H Fowler, Mary Fowler, John Scott and Isabella his wife, and Nathaniel H. Fowler, heirs of Charles Fowler and wife, heirs at law of Isabella Hill, deceased, sister of said Timothy Trimble, deceased, all of the State of New York; and Sarah Ray (widow), sole daughter and heir of William of the State of New Jersey—whom orator prays maybe made defendants to this bill, all being non-residents' of the State of Ohio—are not precluded at law from the possession and enjoyment of the undivided one-half of said’property by any act or acts done by said heirs aforesaid, by the sale of all the same-by their attorneys aforesaid to your orator. All of which acts and doings are contrary to equity and good conscience, and tend to the manifest injury and oppression of your orator.
    * “ In tender consideration whereof, and inasmuch as your orator is remediless by the strict rules of common law, and relievable only in equity, where matters of this kind are properly cognizable:
    “ Your orator prays that the said defendants may be compelled under oath to answer all and singular the matters and charges aforesaid, as fully in every respect as if the same were here again repeated; and they thereto interrogated more particularly if they have not long since received their proportionate share of the purchase money from the proceeds of sale by said attorney in fact, Ralph Phillips, to your orator; and on final hearing, that your orator bo quieted in his said possession, and that ho have such other' and further relief as the nature of his case may require and as to your honors shall seem meet and just. Your orator prays a writ, of subpena returnable to next term, etc.
    “ A. N. Riddle, Solicitor.”
    The record shows that on this bill a subpena issued on the 30tb of June, 1835, which was returned “ not found.”
    The next and only other matter contained in the record, as made-up in the record book, is a decree in the following words:
    “ This cause came on to be heard upon the bill, exhibits, and testimony. The court find that all the defendants are non-residents of the State of Ohio; that notice has been given them by publication in due form of law prior to the October term of this court, a. d. 1835, and all of said defendants having failed to answer or in any way respond to the bill according to law and rules of this court, it is ordered that the bill betaken as confessed ; and the court having-examined the proof in the cause, are satisfied from the evidence that the complainant has the right in equity to the land in question, and that he ought to be quieted in the title thereof. It is by. the court, therefore, ordered, adjudged, and decreed that, the said John Trimble, Andrew N. Young and Isabella his wife,-Chandler and Mary his wife, Chilton Trimble, Adeline Trimble, George Trimble,- Lampson *and Catharine his wife, -Murdock and Elizabeth his wife, heirs of Alexander Trimble,, deceased, James King, heir at law of James King, deceased, Samaiel Hunter and Elizabeth Hunter his wife,--Comfort and •Sarah Comfort his wife, Nathaniel P. Hill, Isabella Hill, Charles G. Fowler, Peter H. Fowler, Mary Fowler, John Scott and Isabella his wife, and Nathaniel H. Fowler, heirs at law of Isabella Hill, late Isabella Trimble, and Sarah Ray, heir at law of William Trimble, deceased, heirs at law of Timothy Trimble, deceased, within ten days from the day of entering this decree, execute, acknowledge, and deliver to the complainant, Nicholas Longworth, and his heirs in fee simple, by deed of quitclaim, all the right, title, •and interest that said defendants, or either of them, have in or to •the following described tract of land, as heirs at law of Timothy Trimble, deceased, to wit: all that certain tract or piece of land .■situated in the Miami Purchase, in the county of Hamilton and •State of Ohio, being section 15, township 3, and in the second fractional range of townships, containing 640 acres strict measure, •except one-sixth part of said section, supposed to have been forfeited agreeably to the terms of settlement of the Miami lands, ■published by John C. Symmes, at Trenton, in the year 1787. It further appearing that the undivided one-half of said property aforesaid belonged to Timothy Trimble, deceased, who died without issue, leaving the defendants aforesaid his heirs at law; and that said defendants, after the death of said Timothy Trimble, sold their interest in said property aforesaid, or intended so to do, to ■•the complainant, and received the purchase money and put complainant into possession of the same. In consideration of which the court do further order, adjudge, and decree that all and each of the defendants be perpetually enjoined from setting up or asserting any right, title, or claim to said tract of land, or taking or ■claiming the possession thereof, or prosecuting any suit at law to recover possession of the same; and further, that the said defendants pay the costs of this suit to be taxed, and that complainant have execution against them therefor.”
    *The journal shows the following entry, dated July 2, 1835 :
    “It being shown to the court that the defendants in this cause are not residents of the State of Ohio, court order that notice of the pendency, objects, and prayer of the bill be given to the said •defendants by publication weekly for six successive weeks in some ¡newspaper published and of general circulation in said county of Hamilton, and that a copy of such paper containing said notice be directed to the place of residence of said defendants, if known.”
    Under date of October 7,.1835, is the entry:
    “ Due proof of the publication of the pendency of this cause, being now filed, thereupon rule for answer in sixty days and cause continued.”
    On the trial of the action of ejectment in the court of common, pleas, the record in the chancery cause was offered by the defendant, but rejected by the court. The transcript of the record produced by counsel, was, by order of the court, so corrected by the clerk as to correspond with the record in the name of Sarah Ray, the court deciding, on inspection of the original record, of which it took notice as. one of its own, that the name of Sarah Roy nowhere appeared in the proceedings; but this act of the court below, though excepted to, is not examined in the opinion of this court,, the case being decided on other grounds.
    The rejection of the record, as appears from the bill of exceptions in this and the following case, was because of the supposed defect in naming the said Sarah, the court below being ready to’ receive it against all other objections'.
    The record being rejected, the plaintiff in ejectment obtained a verdict and judgment which this writ of error was sued out to reverse.
    
      Chase <& Ball and Geo. E. Pugh, for plaintiff in error.
    
      O. M. Spencer and Gholson & Miner, for defendant.
    Ho notes of the argument on one side of this cause were furnished to reporter. The authorities cited on one branch of the case, appear, however, in the following report—Fowler’s Lessee v. Whiteman.
   *Thurman, J.

The common pleas refused to permit the record of the suit of Longworth v. The Heirs of Timothy Trimble to be given in evidence, because the name of the lessor of the plaintiff did not appear in it; the name in the record being Sarah Ray instead of Sarah Roy. In other words, the court held, that a bill purporting to be against Sarah Ray could not be taken to be against Sarah Roy, or, at least, that a notice by publication to Sarah Ray was no notice to Sarah Roy; consequently Sarah Roy was not made a party to the suit, and, of course, was not affected by the decree. If there was nothing in the record to identify the lessor of the plaintiff but the name, Sarah Ray, there might be a question whether the misnomer was not fatal.. It is by no means clear that a notice by publication to Sarah Ray, without further description or means of identity, can be held to be a notice to Sarah Roy, upon the doctrine of idem sonans. But we express no opinion upon-this question, it being unnecessary to do so. For we are unanimously of opinion that it is abundantly shown in the record who was the person meant. The object of the bill, as is apparent upon its face, was to obtain a decree quieting the complainant in his possession of certain premises which had belonged to the heirs of Timothy Trimble, or if the complainant’s title was only equitable, that he might have a decree for the legal title. It charged, substantially, that he had acquired the complete equitable, if not legal, title that had been vested in said heirs, notwithstanding which such of the heirs as were living and the heirs of those who were dead, were setting up some claim to the land. It was against this claim that relief was sought, and the plain intent of the bill was to make those who asserted it, and norm others, defendants; that is to say, the living brothers and sisters of Timothy Trimble, the heirs of his deceased brothers and sisters, and the husbands of the married women of either class. The premises are described; the chain of Timothy Trimble’s title stated; his death intestate, in 1810, leaving his brothers and sisters his heirs at law, averred; and the names and residences-of those yet living and of the *heirs of those who are deceased, and of the husbands aforesaid, are given, and all prayed to be made defendants. By mistake, however, Sarah Roy is named Sarah Ray. But she is described as a widow, as the sole daughter and heir of William Trimble, deceased, a brother of said Timothy Trimble, and as a resident of New Jersey ; all which particulars were correctly descriptive of Sarah Roy, the lessor of the plaintiff. Besides which the names and residences of her near relatives and their connection with her are given as before stated. Now, certainly, here is enough to correct the very slight error in the surname, the Christian name being right. The error could mislead nobody.

The bill, then, is sufficient in this respect, and if the notice followed it, it also was sufficient. The notice does not appear in the record, but it does appear in the decree that the court found that notice had been given to the defendants by publication in due form of law. In the absence of any proof to the contrary, wo must presume that this notice stated the pendency, objects, and prayej of the bill, and described the persons named as defendants as they were described in the bill. If so, it was sufficient to advise Sarah Boy that the bill was filed against her. It follows that if there is no other objection to the record than the alleged misnomer, it should have been received in evidence, and the common pleas erred in rejecting it.

This brings us to a further objection made by the counsel for the defendant in error. They contend that the bill states no case of which the court had jurisdiction, and that, consequently, the decree is absolutely void. It is undoubtedly true that want of jurisdiction of the cause, equally as much as want of jurisdiction of the person, may render a judgment or decree void; as if a court of law should undertake to exercise chancery jurisdiction, or a court of special and limited powers should usurp a jurisdiction not conferred upon it. But how is it in the present case ? The statute in force when these chancery proceedings were had, provided that, “ when the title to, or boundaries of lands or tenements, are drawn *in question in chancery, and any or all of the defendants are non-residents of the state, suits may be prosecuted in any county where the land lies ; and in all cases where any or all of the defendants are non-residents of the state, the courts shall direct the manner of giving notice to the absent defendants.”

But it is contended that the title to the lands in controversy was not drawn in controversy by the bill, because, it is said, the bill showed no title in the complainant. Is this true? The bill avers that Longworth had held peaceable possession of the premises for over twenty-one years, for it states that he took possession immediately after his purchase in January, 1813, and the bill was filed in June, 1835. This possession was under claim of a perfect title, and was adverse to all other persons, and as it nowhere appears in the bill that Sarah Boy, at the time the possession commenced, was under any disability, a good prima facie case was presented entitling the complainant to be quieted against her claim. But it is said that the bill admits that the complainant has not the legal title. This is not so. The bill, it is true, is not carefully drawn, and hence it states that the defendants “ are not precluded at law from the possession, etc.,” when it is obvious, from what precedes this statement, that the averment intended to be made, was, that the defendants assert that they are not precluded, etc. But take the statement as it stands, and it is a mere legal deduction of the pleader from the facts before stated of the defective execution o* the power to Phillips, and of the deed by Phillips to the complain ant. This, however, does not prejudice the bill, as a bill quia timet, if it appears upon its face that notwithstanding these defective executions, the complainant had, by the length of his possession, acquired a valid title.

There is another aspect in which the bill may be regarded, which is equally fatal to the objection we are considering. The bill avers that the heirs of Timothy Trimble, Sarah Eoy included, “by their letter of attorney legally executed, empowered Nathaniel P. Hill ■and James King (who were the ^administrators on the estate of their deceased uncle, Timothy Trimble) to sell their interest in said property aforesaid, and authorized an attorney under them to dispose of the same.” That Hill and King, “ by virtue ■of their power under said letter of attorney from said heirs, empowered Ealph Phillips to dispose of said property; but by mistake the said Hill and King, as the attorneys in fact of the heirs of Timothy Trimble, deceased, omitted to execute and make said power of attorney to Ealph Phillips, as aforesaid, in the name and as the attorneys in fact of said heirs of Timothy Trimble, deceased.”

But it averred that the heirs have long since received the full amount of the purchase money paid by Long-worth for the property. .

Now, taking these allegations to be true, as must be done in this inquiry, why did not the receipt of their share of the purchase money by the heirs, who were under no disability, and the long and quiet possession permitted to Longworth, amount, in equity, to a ratification by them of the sale and conveyance made to him, and entitle him to demand from them the legal title so far as it was vested in them? We think that, under such circumstances, it would be difficult to resist such a demand, and we see nothing in the case relied on by counsel, in 2 Sandford’s Oh. 26, that militates against this opinion. That case only decides, that where a grantee has brought an action at law upon the covenants in his deed, a court of equity will not interfere with it, and compel him to accept an after-acquired title of his vendor.

In Barr v. Hatch, 3 Ohio, 529, the court said : “ It is also a well-settled rule, that when an instrument, intended as a deed to convey lands, has not been so executed as to pass the estate, or vest a legal title, equity has considered it a contract for a deed, and decreed, if the consideration has been paid, the title to be perfected.”

To the same effect is Carr v. Williams, 10 Ohio, 309.

It may be said that these cases are not precisely in point, because the deed- to Longworth was, on its face, properly executed. *But they rest upon a principle of equity that embraces the-case before us ; a principle that we are not disposed, unless upon very weighty considerations, to limit.

If we are right in this view, then Longworth had a good equity as against Sarah Roy, who, at no time, was under any disability.. On the whole, though the bill is inartifioially and carelessly drawn, wo are not prepared to say that a general demurrer by Sarah Roy would have prevailed against it. And if it would not, then it is admitted that the court had jurisdiction of the cause. We do not wish, however, to be understood as assenting to the proposition. apj>arently contended for, that wherever a general demurrer would have been well taken to a bill filed under the provisions of’the statute before mentioned, it follows that the court had no. jurisdiction, and that consequently every decree rendered by it upon such a bill is necessarily void. Nor do we understand the authorities-cited by counsel as sustaining such a proposition. The title to, or boundaries of, land may be drawn in controversy by a bill, though there may be some statement or omission in the bill that renders it obnoxious to a general demurrer. But when the defect is not a. mere want of equity, but is some fact that precludes the court from entering upon the inquiry whether the complainant has an equity or not, in such a case the defect is fatal to the jurisdiction. As .if the land lie in some other county than that in which the bill is filed; or as if the bill is for the recovery of a more personal demand, and in no wise concerns any land, and the defendants are non-residents.

What order the court made as to the notice to be given to the defendants, does not appear in the chancery record, or in the evidence offered on the trial of the ejectment. But, as before stated, the decree finds that du,e notice was given,'and it is admitted that this is prima facie sufficient. Whether it is not conclusive, it is unnecessary to say in this case. That question is raised in another cause pending before us, in *which evidence to impeach the finding was offered and rejected. But in this case no such testimony was offered.

Entertaining the views we have expressed, it follows that the judgment of the common pleas must be reversed.  