
    Thomas R. Biggs and others v. Jacob Bickel and others.
    In 1824, S. conveyed Lis lands in fee simple to H., to be by him sold after one year foi the payment of certain creditors named in the deed; and in ease the grantor paid the debts, to be reconveyed to him; conditioned that the sale should only be made at the request of some one of the creditors named, and on appraisal by three men, to be selected by the trustees, the sale to be public on like notice, and at like proportion of the appraised value required for sheriff sales. B. died intestate in 1826; and R., one of the creditors named in the deed, and administrator of B., in 1827 filed his petition in the court of common pleas for the sale of said lands, as the real estate of B., naming the heirs of B., and asking that they might be made defendants, and the lands ordered to be sold. The court appointed H. guardian ad litem of the heirs of B., infants, by whom they made and filed their answer, and three commissioners duly appointed and ordered, made and returned their appraisal of the lands, and a sale was ordered on public notice ; notice was given and sale made by the administrator, and was reported to and approved by the court, and deeds ordered and made to purchasers in 1829 ; after which H. executed release deeds to the purchasers respectively, and in 1840 died. On petition filed by the heirs of B., against the heirs of H., and the purchasers, for relief. — Held:
    1. That the facts do not show a disregard of the duties of his trust on the part of H. constituting any cause of action.
    2. That the law of 1824, under which the proceedings of the administrator’s sale were held, not prescribing the mode of making the heirs defendants, and such proceedings having, before the statute, been ex parte, the court might direct the mode, and that an appearance and answer, made by their guardian a.d litem, appointed by the court in the case, was a reasonable and proper mode under that statute.
    3. That the equitable interest of B. in the land was “ real estate ” within the meaning of the statute of 1824, and subject to sale under the statute.
    Civil action. Reserved in the district court of Clermont county.
    The plaintiffs filed their petition, February 3, 1855, in the court of common pleas of Clermont county, setting forth that they are the heirs of Zaccheus Biggs, who died intestate, September 8, 1826. That said Zaccheus Biggs, on the 1st day of July, 1824, executed a deed of trust to Charles Ham mond, of Hamilton county, conveying to him in fee simple with other lands, four hundred and forty acres of land, par ticularly described, situate in Clermont county, of which said grantor was seized in fee, for the express purpose of holding said lands, charged with the payment of the several debts, particularly specified in said deed, and, after the expiration of one year from the date of said deed, upon the request of any one of the creditors who were named in the deed, Hammond was to proceed to sell so much of said lands as should be necessary to pay said creditors. A copy of the deed of trust is particularly referred to and filed with the petition as a part thereof. The petition further states that the conveyance to Hammond was without consideration, and only for the uses mentioned in said deed — and it is recited in the deed, that upon the payment of said debts specified therein, the lands, or the residue thereof, are to be reconveyed to said Biggs. It is charged in the petition, that the lands were not sold and conveyed by request of any of said creditors named in the deed; that more land was sold than necessary to pay said debts; that the land was not sold at public vendue, but at private sale; that the required notice was not given of the sale, and no valuation made of the lands by three persons selected by said Hammond; but that the same with other lands were sold and conveyed by deeds of release made by said Hammond, and the grantees and those claiming under them, defendants, were fully advised of the premises at the time; and that the debts named in the deed of trust were never fully paid and discharged by said Hammond, but a large proportion of them have been paid since the death of Hammond by Thomas R. Biggs, one of the plaintiffs, the last of which he has paid within seven years preceding the date of the petition; that said plaintiffs were, at the time, minors of tender age, and ignorant of the existence of said trust deed, until quite recently. The petition charges that said pretended sale and conveyance by Hammond was in violation of his trust, and void; that said Hammond died on the 3d of April, 1840, leaving Alma L’Homedieu, wife of Stephen S. L’Homedieu; Elizabeth Williams, wife of Matthew Williams, and Catharine Hunter, wife of Moses Hunter, his suiwiving children and heirs — all of whom, as well as the present occupants and claimants of said land are made parties defendants. The petitioners pray that the conveyance of said iand so made by Hammond be set aside, and the legal title decreed to the plaintiffs as the heirs of Zaccheus Biggs.
    As to the answers of the defendants, it is sufficient to state that they claim title under purchasers at a sale of the lands in question by the administrator of Zaccheus Biggs in February, 1829, by virtue of an order of the court of common pleas of Hamilton county, granted upon a petition filed by the administrator for such sale to pay the debts of the decedent.
    The case was taken to the district court by appeal, and was therein reserved to this court for decision; and is here submitted upon the following agreed statement of facts :
    “ On the 3d of September, 1821, Zaccheus Biggs was the owner in fee simple of land lying some in Hamilton, Olermont, Belmont, and Guernsey counties, including the land described in plaintiffs’ petition.
    
      “ He then executed a mortgage on the same to Jacob Myers to secure an indebtedness, by note of hand, of $797, due in one year, with interest from the date of the mortgage; which was duly recorded in said counties of Hamilton and Clermont.
    “On the 8th of July,'1824, Zaccheus Biggs, for a consideration of one dollar, executed a deed of trust to Charles Hammond for the land described in said petition, and another tract of 710 acres, including 60 acres mortgaged before to the U. S. Bank, to secure the payment of the following debts to the following creditors, to-wit:
    
      '■ To James Boggs,.................................... $621 16
    “ Ezekiel Dimmitt,................................ 561 50
    “ Jacob Myers,...............................'..... 867 00
    “ Shadrach Dial,................................... 192 00
    “ Estate of Benjamin Biggs, dec’d,........... 350 00
    “ Lewis Gat-ch,..........;.......................... 150. 00
    “ Thomas Hair,..................................... 84 35
    “ Lain Ready,......................................1,552 00
    “ George Beagle,................................. 150 00
    “ Joseph Gilkinson,.............................. 259 31
    “ George Moore,.............‘..................... 104 52
    “ Samuel Evelin...................................1,022 47
    
      To Isaac Turner,.................................... 250 00
    “ William Williams,.............................. 75 00
    “ Emanuel Hahn,.................................. 130 00
    $6,369 31
    which said deed, with indorsements thereon, is referred to for .greater certainty.
    “ Charles Hammond never executed said trust, nor any part thereof, according to the terms of said deed.
    “ Zaccheus Biggs died in 1826, leaving a widow who was then and still is, insane, and eight children, viz : Anna Louisa, Margaretta, Benjamin, Zaccheus, Dorrington, William, and Thomas Biggs, who were minors, and Mary Pleasants, wife of Samuel E. Pleasants, who was of full age.
    “ Lain Ready was appointed administrator of the estate of the deceased, and on September 3, 1827, filed a petition in the court of common pleas of Hamilton county, Ohio, for the sale of real estate to pay debts. The whole record is made a part of this agreement and referred to for greater certainty.
    “ Charles Hammond was appointed guardian ad litem for said minors and filed their answer.
    “. The land in question in this case was sold on the 27th and 28th days of February, 1829, under an order of said court, by John C. Avery, sheriff of Hamilton county, Ohio (acting for said administrator), at the door of the court-house of said county, to Myers, Jones, and Storer — those under whom defendants claim, and the sale was confirmed and a leed ordered by the court, and made by the administrator to the purchasers.
    “Hammond, in 1829, released by deed all his interest in that part of the land in question, claimed by Jones & Turner (defendants).
    “ Neither Hammond, the administrator, nor any of the purchasers of said land, except Myers, ever paid any of the debts named in said deed of trust.
    “ Myers paid for the 123 acres he bought at the administrator’s sale, the same now held by defendant Bickel, by a release of his debt, secured by said deed of trust and mortgage, to that amount, and in payment of the balance of his debt over and above the purchase money, indorsed a release on the mortgage, which is dated May 21, 1829, and is recorded.
    “ In 1844, Lain Ready was removed and Thomas R. Biggs, one of the plaintiffs, appointed administrator de bonis non, and realized $2,800 in a suit and settlement with Ready; and in part with that money and the proceeds of the home farm of 419 acres covered by the dower of the widow, and in part with his own money, paid off the debts secured by the deed of trust, including interest, except the Myers’ debt. The $2,800 was a part of the proceeds of the property in the hands of Ready, as administrator, and was a part of the proceeds of the land sold by Ready as administrator; - and Thomas R. Biggs knew it when he received it.
    “Neither Thomas R. Biggs, nor defendants Bickel, Benjamin Marriott, nor Joseph Marriott, knew of the existence of the deed of trust until the year 1853, and after the defendants had bought and paid for the land in question.
    “ The home place or round bottom farm of 434 acres, more or less, is worth not less than $100 per acre.
    “ Benjamin Biggs, Dorrington Biggs, William Biggs, Zaccheus Biggs, and Anna Louisa Biggs, all died without issue-; Margaretta Biggs (Gest) died leaving Elizabeth Gest and John Gest, her children and heirs at law.
    “ Thomas R. Biggs testified, on trial, that when he made said several payments of debts in said deed of trust, he did so to save the home or round bottom farm from being sold for the debts of his father’s estate, and did not know, when he made said payments, of the existence of said deed of trust to Charles Hammond.
    “ Ready, as administrator of Biggs, made a deed to Myers for the land that Myers bought at the sale;. and at the time of making the deed, Myers released his mortgage on the 750 acres of land. The land was taken.in lieu of the money and interest due on the mortgage of Biggs to Myers.
    
      “ About 188 acres of said land was in a state-of nature, and not in the actual nossession of any one until the year 1853, when the plaintiffs took possession, and have retained it ever since, and is included in the purchase of George W Jones, at said sale of said Ready as administrator.”
    The deed of trust from Zaccheus Biggs to Charles Hammond, dated July 8, 1824, contains the following recitals :
    “ The said Zaccheus Biggs, for and in consideration of one dollar, to him in hand paid by the said Charles Hammond, and for and in consideration of the uses and trusts hereinafter set forth and specified, hath granted, bargained, and sold, and by these presents doth grant, bargain, and sell unto the said Charles Hammond, the following described tracts of land, to-wit: ” (Here the land is described.)
    After reciting the names of the several creditors, and the amounts due each, it contains the following: “Now the object and intent of this conveyance is, that the said Charles Hammond shall hold the said described tracts of land charged with the payment of the debts aforesaid; and at any time after the expiration of one year from the date hereof, upon the request of any one of the said named creditors of the said Zaccheus Biggs, shall proceed to sell so much of one or other •of the said tracts of land as shall be sufficient to satisfy the debts due such creditors, with legal interest; such sale to be ■at public vendue and upon a notice published in some newspaper printed at Cincinnati, unless said Zaccheus shall consent to private sale. The notice, in case of public sale, to be ■at least for the space of thirty days, and upon a valuation «made ■ by three persons selected by said Hammond for that purpose ; and no sale to be made except for such proportion •of the valuation so made, as required in the case of sales by •sheriffs upon execution. And the said Charles Hammond for •himself and his heirs, covenants and agrees with the said iZaccheus Biggs that he will receive and hold the estate hereby invested, in him, subject to the trusts hereby created, and ■that upon the payment of the said debts, or upon the assent of the said creditors, to him made in writing, he will reconvey -said premises, or so much as may remain undisposed of in the -execution of -the trust, to the said Zaccheus Biggs, his heirs •or .assigns.”
    
      Then follows the usual covenant of warranty; and the instrument was signed and sealed by both parties, attested by two witnesses, and duly acknowledged by the grantor, according to the provisions of the statute.
    
      T. M. Lewis, Penn &; Johnson, and Henry Stanberry, for plaintiffs.
    
      O. T. Fishback, W. T. Fishback and Jolliffe 8; Howard, for defendants.
   Sutliit, J.

The record to which reference is made in the agreed statement of facts, shows a petition to have been duly filed by Lain Ready, the administrator of Biggs, which showed the necessity of the sale of real estate to pay the debts of the intestate, named the children and heirs of the intestate, and asked that they be made defendants, and prayed for an order to sell so much of the real estate of the intestate as would be sufficient to pay the debts; said to be of the amount of sixteen thousand dollars. But the petition did not describe the lands. The petition was filed on the 3d of September, 1827. But appraisers were afterward appointed and the several tracts were appraised by them, and a particular description thereof, and the appraised value of each tract as designated, expressed in the report of the appraisers made to the court in the case before the order of sale was entered. The case was continued from term to term, and reappraisals ordered by the court and duly made with like accurate descriptions, all of which are part of the record, and were made before sale,- which was made 28th February, 1829.

The petitioners in this case, it will be observed, place their right to recover the legal title to said lands entirely upon the failure of Hammond, the trustee, to execute his trust. No mention is made in the petition of the administrator’s sale of the lands.

It is quite evident that the conveyance by Zaccheus Biggs to Charles Hammond was a conveyance in trust for the purposes expressed in the deed. Zaccheus Biggs, from the terms of the deed, continued during his life to hold an equi»table interest in said lands; and if he had, during his life, paid the debts mentioned in the deed, the lands would there after have belonged, in equity, to him, and Hammond would have held the legal title thereafter in trust, solely for Zaccheus Biggs and his representatives.

But it is not pretended that the debts, for the payment of • which this conveyance was made to Hammond, have been in fact paid either by Zaccheus Biggs in his life time, or by his heirs.

It is, however, said that the lands have been conveyed by the trustee in violation of his trust, or at least in a manner unauthorized by the powers and purposes expressed in the trust deed.. But if the case depended upon the execution of the trust by Hammond, it would be incumbent upon the plaintiffs to show a diversion of the trust property from the purposes of the trust; and their right to the legal title of the property in themselves. Have the plaintiffs shown a state of facts, entitling them to the legal title of the land ?

To ascertain whether the trustee has diverted the trust property, or been delinquent in the discharge of his duties, it is proper to recur to the deed and ascertain the nature of the trust, or the objects contemplated. The provision of the deed is that Hammond shall hold the title for one year, or until July 8, 1825, and that at any time after that date, at the request of any one of the creditors named, he should proceed to sell so much of one, or the other, of said tracts of la.nd as might be sufficient to satisfy the debts due such creditors. Lain Ready was one of the creditors, and the largest named; and his application to the court, to which Hammond made answer as attorney for the heirs of Biggs, may well be considered a request by one of the creditors, to-wit, himself; but his petition is, in fact, in that case, to which Hammond so made answer, a request for the lands to be sold, or so much as necessary to' pay all creditors, including all the creditors named in the deed of trust. Hammond then had the right, by the’conditions of the deed of trust, to sell the lands for money to pay off the creditors named.

But it is said he did not sell, nor was the sale made in accordance with the directions in the deed.. In reply to this objection, it may well be insisted that a substantial compliance, especially at this late day, is all that can be reasonably required to be shown. It is proyided by the deed, that the sale be a public sale, on thirty days’ notice, upon valuation made by three persons by him selected, and for such portion at least of the valuation as required at sheriff’s sales. Now all these prerequisites of the sale were observed; only the appraisers wrere assented to instead of being selected by Hammond, and Ready or the sheriff acted as auctioneer; and, upon the purchasers paying the required price respectively, and the highest price offered, Hammond executed a conveyance to them, just as he would have done had 'he alone sold.

And, it might well be questioned if the trustee had the right to sell and did sell in the manner and at the price named in the deed of trust, whether the purchaser would not acquire a perfect title, irrespective of the application made of the money after the sale by the trustee. But so far as the proceeds of the sale are alleged to have been diverted from the particular purposes specified in the deed of trust, the petitioners would only be entitled to call upon the representatives of the trustee to account for the money. Such diversion of the proceeds of sale, or neglect of their proper appropriation, on the part of the trustee, could not, as has been shown, invalidate the title of a Iona fide purchaser of the land. It is not, however, pretended, as a cause for relief against his representatives, that Hammond sequestered the proceeds of the sale, or even realizéd any pecuniary advantages therefrom. And the proof is that the fruits of the sale, at the prescribed price, of all the lands conveyed by said Hammond according to the limitations of their value in said trust deed, were paid to the existing creditors named in the deed, or to the personal representatives of Zaccheus Biggs. It might, therefore, even in this view of the case presented by the petition, be difficult to perceive wherein the plaintiffs had' beer damnified, by the neglect of Hammond to adhere literally tc the manner of executing the trust expressed in the deed.

But the defense set up by the answers, and specially relied upon by the defendants, is, their titles respectively derived from the administrator’s sale of the lands.

If the administrator’s sale and deed were operative to pass the title, that fact must necessarily constitute a perfect defense in this case.

Two objections are urged to the validity of the administrator’s sale, under which the defendants derive title.

In the first place, it is insisted that inasmuch as no personal service of process was made upon the infant heirs of Zaccheus Biggs, they could not be regarded as being constructively present in court, and that, therefore, the court had no jurisdiction of the case to order a sale, and that the sale, consequently, is void. This objection would require a reconsideration of the Unanimous opinion of this court, made in the case of Benson v. Cilley and others, 8 Ohio St. Rep. 604, since this case was reserved. Indeed, it would be requiring us to more than' recede from the opinion expressed in the case of Benson and Cilley, to entertain the objection in this case. That case arose under the statute of 1831, which. expressly provided not only that the lawful heir or heirs, or , the person or persons having the next estate of inheritance of the testator or intestate should be made defendants; but the act .of 1831 also provided that,, the defendants should be served with process, or otherwise notified of the pendency of such petition. But the sale, made by the administrator of the lands in question, was made under the statute of 1824, which did not, in its terms, require process to be issued or served on the heirs; but simply* provided that the application to the court to sell should be by petition, to which, it was added, ■“ the lawful heir or the person having the next estate of inheritance of the testator or intestate shall be made defendant.” When it is considered that previous to this act of February 11, 1824, the proceedings in. administrator’s sales, •though riot strictly in rem, were always ex parte in this state, it might well be held, under the act of 1824, that service of process was not necessary to give the courts the same jurisdiction over the subject matter which they had always exercised •in this state. • And certainly when the.act was silent as to the manner by which the heir should be made a party defendant, it was competent for the court to prescribe the method. The appointing an intelligent attorney, and the gentleman selected by the intestate'as his friend and special trustee in regard to the very lands in question, to represent the infant defendants as their attorney in the case, by preparing and presenting their answer to the petition, would seem a very reasonable compliance with the provisions of that statute. The record shows the heirs to have been made parties defendant, and their answer, by their guardian and attorney, constitutes part of the record. The letter, as well as the spirit of the statute, has, therefore, been respected in the proceedings.

But it is also urged as a second objection to the validity of the sale, that the lands at the time of the administrator’s sale, were not included properly in the term, “ the real estate of the deceased.”

Real estate, being an interest in lands, tenements or hereditaments, it follows that if Zaccheus Biggs, at the time of his death, had any interest in the lands, the same must have been included by the words “ real estate of the deceased,” as used in the statute. If, then, we recur to the deed of trust, and which seems to be an indenture signed by both parties, we find that while the legal title was in Hammond, he acknowledges the entire equitable interest to belong to Biggs; the entire proceeds, if sold, in execution of the trust, were to be appropriated for his benefit in paying his debts; and if Biggs should, in some other way, pay those debts or satisfy those creditors, the legal title was to be restored to him by the trustee. The lands were then evidently included in the term “ real estate of the deceased.” Indeed, if Zaccheus Biggs had no estate in the lands, it is difficult to perceive what status his heirs could have in court, in regard to the lands, as his legal representatives.

But it is sufficient to say, that we regard both objections urged against the validity of the sale' alike untenable. Charles Hammond, who held the legal estate, and the heirs of Zaccheus Biggs, who had the equitable estate, were parties defendant. All the proceedings seem to have been conducted substantially in accordance with the requisitions of the statute, and the sale must be regarded as valid.

The petition in this case must, therefore, stand dismissed.

Scott, O.J., and Peck, Gholson, and Brinkerhoee, J J., concurred.  