
    Sidener v. Hawes.
    1. The creditors of an estate are entitled to have the same settled in due course of administration, and in case of a sale of real estate to pay-debts, that it be made by order of a competent court. It is no bar to an action by an administrator to sell land to pay debts, that the heir has, without an order of court, sold the same at private sale and applied the proceeds in satisfaction of preferred claims.
    2. An order of sale of real estate to pay debts, made by the court of common pleas on a petition which states facts sufficient to warrant such an order, will not be reversed for want of a journal entry showing that the facts stated in the petition were found to be true. In such a case, the reviewing court will presume that the judgment was founded on proper proof.
    3. If an heir, to whom lands descend subject to the debts of his ancestor, sells the same with covenants of general warranty at private sale, without administration on his ancestor’s estate, to a Iona fide purchaser who applies the purchase-money to discharge liens thereon created by the ancestor, and to the payment of preferred claims, such purchaser is in equity entitled, in the distribution of the purchase-money, to be subrogated to the rights and equities of the holders of such claims.
    4. In a proceeding to sell land to pay judgment creditors, pending in the court of common pleas, it is competent for the heir, who still retains an interest in the subject-matter, by cross-petition to attack such judgments on the ground of fraud.
    5. A sale of the real estate by the heir, with covenants of general warranty, before the commencement of proceedings to sell the same to pay debts, where the purchase-money is applied to the payment of preferred claims thereon, does not thereby divest him of such an interest in the subject-matter, as to defeat his right to file such cross-petition, and to protect his vendees.
    6. If the allegations of the cross-petition implicate the administrator, as well as the judgment creditors, in fraudulently obtaining such judgments, they are, as against the heir, united in interest as to the subject-matter of the controversy.
    7. On error by the heir to reverse a judgment dismissing such cross-petition, service upon the administrator within the time fixed for the commencement of such proceedings, saves the action as to his co-defendants so united in interest, though not served within that time.
    Error to the District Court of Greene County.
    The following is a statement of facts, so far as is necessary, to present the points decided.
    James E. Hawes, as administrator of Daniel Sidener, filed a petition in the court of common pleas of Greene county, to sell lands to pay debts of his intestate. Mary Sidener, who was sole heir, and Clements & Wetherholts and William Law, her vendees, were the defendants. He alleges that Daniel Sidener died in 1864, leaving neither widow nor children, nor any personal assets, but seized in fee of the land sought to be sold, lying in Greene county, to pay about $800, debts of the intestate.
    It is averredj that said Mary Sidener, sister and sole heir of deceased, sold said land in 1865, to defendants, Clements & Wetherholts, and that she, with one Jane Sidener, her mother, conveyed the same, by deed of general warranty, and that Clements and Wetherholts sold and conveyed the same to defendant, William Law, who is in possession under the title so derived.
    The prayer is “that the several rights, liens, &c., of the above defendants be adjusted, &c.; and that your petitioner may be ordered to sell said real estate, and for such other relief as the facts proven may at the hearing of this cause warrant and justify.”
    The defendants answered separately. Mary Sidener admits that she is sole heir, and states that Daniel Sidener, at the time of his death, resided in Fayette county, Kentucky, but died in Greene county, while there on a visit. That letters of administration on his estate were granted by the county court of Fayette county to one Huffman, who discharged his duties and made full settlement of said estate, in said court. That in 1865, he with this defendant, came to Ohio, contracted to sell said land to Clements & Wetherholts for $1,800, which was paid as follows: $1,185, to satisfy a purchase-money mortgage, made by Daniel Sidener, and the balance was used to defray certain debts, which by law are preferred. She also sets up the fact, that Daniel Sidener was indebted to her some $1,200, the purchase-money of land she sold to him in Kentucky. Her prayer is. that the petition be dismissed. A demurrer to this answer was sustained.
    Clements.& Wetherholts filed an answer and cross-petition, claiming to be Iona fide purchasers of said land, and averring that they applied the purchase-money to the discharge of said mortgage, the payment of taxes, funeral expenses and other preferred debts. They insist on the validity of their title, and admit the sale to Law, who is in possession.
    Their prayer is, that plaintiff be denied the relief he asks; that the title derived from Mary Sidener be declared valid, and that they have such other relief as in equity they are entitled to.
    William Law sets up his title and possession in good faith, and that he has made permanent and valuable improvements worth $650, and prays for proper relief.
    At the November term, 1869, the cause came on for hearing on the petition and said answers and-cross-petitions, and the court found that none of them constituted a defense to the action, and proceeded to order a sale of the real estate. At the same time, all questions concerning distribution'of the proceeds of sale, and all issues that may be raised on the cross-petitions, were reserved for further consideration, with leave to plaintiff to reply thereto.
    Replies were filed, putting in issue the claims of Clements & Wetherholts, William Law, and of Mary Sidener.
    Such proceedings were had under the order of sale, that the land was sold to said Law for $2,132.52.
    The sale was confirmed January 4, 1871, and the administrator was ordered to make him a deed, but no order was made respecting the disposition of the purchase-money.
    February 4, 1871, Mary Sidener, by leave, filed an amended answer and cross-petition. She states that Daniel Sidener died November 13, 1864, while on a visit to a family of his manumitted slaves, whom he had settled in Greene county. This family consisted of the mother and two minor children, John cmd Mary Sidener, Jr.
    She restates the settlement of the estate of Daniel Sidener, in Fayette county, Kentucky, with full knowledge of said children, and alleges that neither of these minor children had any claims against the same, and yet they are the only parties who are making claims against the estate, and that it was at their instance that plaintiff was appointed administrator in Greene county. She charges that these children have fraudulently conspired with others unknown, to cheat and defraud said estate, and have presented false and fraudulent claims against the same for services to said Daniel Sidener, and that plaintiff, well knowing their fraudulent character, by carelessness and negligence has suffered them to be referred to arbitrators, and to be determined on false and ex jpa/rte evidence, all for the purpose of defrauding said estate, by means of which neglect and carelessness the claim of John Sidener for $750 has become a judgment of the court, which he has assigned to John Little, without consideration.
    A second defense is, in substance, the same as the original answer and cross-petition as to the full settlement of the estate, under the Kentucky administration.
    The prayer is, that said John Sidener and his assignee John Little, and Mary Sidener, Jr., be made defendants; that the judgment against said estate, in favor of John and Mary, be set aside, and for all other proper relief.
    On February 20, 1871, said John Sidener, John Little and Mary Sidener, Jr., filed a joint demurrer to said answer and cross-petition, on the ground that it did not state facts sufficient to entitle said Mary Sidener to the relief prayed for, nor to constitute a cause of action against them, and on the further ground that there was a misjoinder of causes of action.
    The plaintiff neither demurred nor replied, and as to him, this answer and cross-petition stands as upon default.
    On the day this demurrer was filed, it was submitted to court and sustained, and thereupon judgment was rendered against Mary Sidener and in favor of plaintiff, for all the costs made by her under said answer and cross-petition; also a judgment against said Mary Sidener and Clements & Wetherholts, and in favor of plaintiff, for all the costs made by them subsequent to the service of summons and prior to filing said amended answer and cross-petition.
    No further proceedings seem to have been had in the court of common pleas as to the distribution of the purchase-money.
    February 12,1873, Mary Sidener filed her petition in error, in the district court, to reverse said judgment rendered February 20, 1871, sustaining said demurrer and for costs. The defendants to this petition were Hawes, administrator, Clements & Wetherholts, William Law, John Sidener, John Little and Mary Sidener, Jr., being all the parties to the record except plaintiff in error. John Sidener, John Little and Mary Sidener were not brought before the district court by service or otherwise.
    At the April term, 1875, the district court, without these parties before it, reversed the judgment of the common pleas as to parties served, for error in sustaining tlie demurrer, and remanded the cause for further proceedings. To reverse this judgment of reversal, Hawes, administrator, prosecuted error to this court, and at the December term, 1876, this court reversed the district court, on the ground that that court erred in proceeding in said cause before all the necessary parties were before the court, the reason being that John Sidener, John Little and Mary Sidener, Jr., were necessary parties in error to reverse a judgment rendered on their demurrer. The cause was remanded to the district court for further proceedings, and at its April term, 1877, the proper parties being before the court, separate demurrers were filed to said petition in error by C. L. Maxwell, administrator of John Sidener, J. McStewart, administrator of Mary Sidener, Jr., and by John Little, claiming that, as to each of them, the proceedings in error were not commenced within three years from the rendition of the final judgment sought to be reversed.
    At the April term, 1878, of the district court, said demurrers were sustained, as appears by the following entry: “ And the court being advised in the premises, is of opinion, that as to final judgment of said court of common pleas, rendered -. . . upon said demurrer, filed February 20, 1871, this court is without jurisdiction, all the parties to such judg-' rnent not having been brought before the court as required by law. It is therefore ordered that this cause as to such judgment, and said answer and cross-petition filed . . . February 1, 1871, and the proceedings thereunder be, and the same are hereby dismissed.”
    The court then proceeds to affirm the judgment, ordering and confirming the sale, and as to all matters reserved by the common pleas for further consideration, and not adjudicated, the cause is remanded. To reverse this judgment is the object of the present proceedings.
    
      R. F. Howard, for plaintiff in error:
    I. The proceeding in error was commenced within the statutory period of limitation of three years, against all the parties to the judgment of the court of common pleas, rendered June 28, 1871, as well those who were served with process after as those who were served with process before the expiration of the period of limitation imposed by the statute, and that the district court had full and complete jurisdiction of the case. Sections 20 (Rev. Stat. § J987), 523 of the Code; Robinson v. Orr, 16 Ohio St. 281; Buckingham v. Commercial Bank, 21 Ohio St. 131.
    II. If there was no such unity of interest as that referred to in section 20 of the code, and the parties who were brought before the court by the amended petition in error were not co-defendants of those who had been served with process before the expiration of the statutory period of limitation, or that, being co-defendants, they were not united in interest with them, then they wore not necessary parties to the petition in error, and the district court had jurisdiction of the case as to the parties Hawes, Law and Wetherholts, who had been served with process and were before the court.
    III. The district court erred in affirming the judgment of the court of common'pleas, overruling the motion of Mary Sidener and others to set aside the sale, and also in affirming the order of the court confirming the sale. The record shows that the court at the same time that it made the order for the sale of the real estate by Hawes, administrator of Daniel Sidener, deceased, also gave leave to Hawes to file replies to any or all of the cross-petitions and answers of the defendants, and ordered that all issues that might be raised by said cross-petitions and answers of the defendants, or by the replies which might be filed thereto by Hawes, should be reserved for future consideration. Hawes subsequently filed replies to the answer of Clements and Wetherholts, the answer of law and the answer of Mary Sidener. None of the issues thus raised were disposed of by the court at the time the order for the confirmation of the sale was made. Nor have they ever been heard and determined by the court. They still remain undisposed of. The court proceeded to confirm the sale and render a judgment in favor of Hawes, administrator, &c., for costs, without having passed upon any of the questions reserved. Further, Hawes failed to answer or demur to the amended answer and cross-petition of Mary Sidener. As to bim the allegations of the amended answer and cross-petition are to be taken as true. It is a fact therefore admitted by the pleadings, as shown by the record, that the claims preferred against the estate by John Sidener and Mary Sidener, Jr., were not valid claims. They were unjust and fraudulent, and their allowance as valid claims against the estate was fraudulently obtained, yet they were the claims and only claims for the satisfaction of which the land was sought to be sold by the administrator. Besides, it also stands admitted by the pleadings, as shown by the record, that this land had been once sold by the heir of the decedent through Huffman, the former administrator, as her attorney in fact, and the proceeds of the sale applied to the payment of the privileged debts, and had, in fact, been exhausted in the payment of privileged debts. Under these circumstances the land was not liable to be subjected to sale for the payment of any debt of the decedent.
    
      John Little, for defendant in error:
    The construction of section 4987, Rev. Stat., given by plaintiff’s counsel, is incorrect. It would render the qualifying clauses of the section nugatory. I claim that the phrase “ united in interest ” relates to a thing or matter in which parties have or may have a mutual or common interest independent of the action or its result. The mutuality or unity of interest exists before and independent of the action. And the meaning is the same in proceedings in error, as in the original action.
    As respects the cross-petition of Mary Sidener, none of the defendants whose rights were sought to be affected thereby were made parties to the error case within the statute. The administrator in nowise represented their interests. His duty forbade that. The other defendants had no interest united or otherwise in the questions sought to be raised by that pleading-
    Unless there was error to the prejudice of the plaintiff in error there will be no reversal. Rev. Stat. § 5715.
    
      A foreign administrator could not have sold lands in Ohio under the circumstances set up in the answer. Daniel Sidener did not die in Ohio, nor did Hoffman live or own assets or property in Ohio. 1 S. & C. 595, § 152; Id. 615, § 255.
    There could be no proceedings to sell lands without an administrator. And a sale by an administrator without an order is void. Lessee v. Park, 4 Ohio, 447; 4 Ohio, 68 ; Beal v. Price, 13 Ohio, 368.
    The claim that Mary Sidener paid the debts and in effect administered the estate is without sanction of law.
    There were no pleadings filed before the order of sale which constituted any defense.
    As to the claim that the court made no finding upon which to predicate an order, it is enough to say that the presumption is that the court did make the finding. Lessee v. Ruffin, 6 Ohio, 255 ; Valentine v. Smith, 8 Ohio, 36.
    The matters pleaded in the petition requisite to secure an order of sale were not denied and were therefore taken as true.
    The sale was regularly made and no error is revealed in what follows the order of sale up to the confirmation.
    The confirmation—no liens having been set up—was the end of the case in that court.
   Johnson, J.

The district court at its April term, 1878, had before it all necessary parties. The judgment sought to be reversed was rendered by the common pleas, February 20, 1871, sustaining the demurrer of same date filed by John Sidener, John Little and Mary Sidener. The petition in error was filed February 12, 1873, and all the parties were served within three years from February 20, 1871, except John Sidener, Mary Sidener, Jr., and John Little, who were not brought before the court until August, 1877, over six years after final judgment was rendered on said demurrer.

The district court held, that inasmuch as these three defendants were not served within three years from the rendition of said judgment, it was without jurisdiction as to any of the defendants in error, even as to those served within the three years limitation. ¥e think this was erroneous. The judgment sought to be reversed was one sustaining the demurrer of February 20, 1871, and taxing costs against Mary Sidener and other defendants, and rendering a judgment in favor of plaintiff below for such costs. This judgment for costs was in favor of Ilawes, administrator, and against Mary Sidener and Clements & Wetherholts. All these parties were before the district court within the three years. This judgment for costs was brought under review by the petition in error. It was a several judgment for costs in favor of Hawes, administrator, and against plaintiff in error. Of this question the court had acquired jurisdiction, though John Sidener and others were never served. It was a judgment to reverse which they were not necessary parties. Hence the district court had jurisdiction of the parties served within the three years, so far as to reverse the judgment for costs. We do not, however, rest the case on this ground alone. The judgment sought to be reversed, was, in legal effect, that the answer and cross-petition of plaintiff in error did not state facts sufficient to entitle her to the relief prayed for, nor to constitute a cause of action against her co-defendants, John and Mary Sidener, Jr., and John Little, assignee of John Sidener. They are judgment creditors of the estate and the only persons having claims against the same that had not been fully settled by administration in the courts of Fayette county, Kentucky. These judgments are alleged to be fraudulent, and the present administrator is implicated in the fraud. He is seeking to sell land to pay these fraudulent claims, and files his petition to sell this land for that purpose.

Mary Sidener as sole heir, and as owner of the land in fee, conveyed the same with covenants of general warranty, to Clements & Wetherholts, in pursuance of a contract of sale made with the Kentucky administrator, and the purchase-money was all applied to the satisfaction of claims having priority over general creditors of the estate.’ As heir, and a3 warrantor of the title to Clements & Wetherholts, Mary Sidener was a proper party to these proceedings to sell land. She had the right to make any defense which would defeat the right to make the order of sale, even though fraud was not alleged. The petition to sell was filed under the code of civil procedure. It tacitly admits rights and equities in her vendees who are made defendants. Its prayer is, that the several rights, liens, &c., of said defendants be adjusted, and for such other relief as the facts on a final hearing may warrant. These facts, as disclosed by the amended answer and cross-petition and the cross-petitions of her vendees, entitled them to subrogation as preferred creditors over the judgment in favor of John and Mary Sidener, Jr.

Further than this, if the allegations of fraud contained in said answer and cross-petition were true, and the administrator does not deny them, she was entitled to the judgment of the court setting aside said fraudulent judgments and for, other proper relief.

In Conway v. Duncan, 28 Ohio St. 102, it was held, that in a proceeding in the court of common pleas to sell land to pay judgments entered upon the award of arbitrators, it is competent for- the heir, upon a cross-petition, to attack said judgments for fraud. That was a case quite like the one before us, and establishes the right of an heir to impeach judgments which are the basis for an order to sell the real estate ‘ belonging to him.

To sustain the demurrer of John Sidener and others of February '20, 1811, was to deny this right. As this amended answer and cross-petition was not filed until a,fter the sale was made and confirmed, it was not available to defeat a sale, but as the court had expressly reserved all questions of distribution of the purchase-money, it was equally applicable to the distribution of the proceeds of' sale.

William Law was the purchaser at the administrator’s sale, as well as the holder of the legal title derived from the heir. He was claiming compensation for permanent and valuable improvements, and was entitled to be subrogated to all the rights and equities of the heir, and of his vendee, Clements & Wetherholts. If the claims of John and Mary Sidener, Jr., were fraudulent and void, then his title derived from the heir was good, and entitled him to the whole of the purchase-money as the heir had the right, to convey, subject only to the valid debts of her ancestor. If they were not fraudulent and void, but were valid, still liis right of subrogation would give him priority. A judgment to that effect would protect the heir, to that extent, ou her covenants of warranty. The judgments therefore, sustaining said demurrer of February 20,1871, was one affecting all the parties to the controversy. It involved the distribution of an estate, held, in trust by the ad-, ministrator, and not merely the rights of these alleged creditors to payment of their claims. "Whether these claims could be successfully impeached or not, was not the most vital question in the case, after the sale had been confirmed. The vital question was, whether the heir, who sold with covenants of warranty, and purchasers in good faith, who had applied the purchase-money to the satisfaction of debts having priority, and who' bad made permanent and valuable improvements on the land, had, as against the claim of the administrators and of these alleged creditors, any rights and equities that entitled them to relief in the distribution of the purchase-money arising from the sale made by the court.

The default of the administrator in replying to said answer and cross-petition of Mary Sidener, and the demurrer of alleged creditors, admitted her allegations to be true. If so, she was entitled to be protected, and to have her vendees protected in the distribution of the purchase-money, and the court of common pleas erred in sustaining said demurrer, thereby holding she was not entitled to some proper relief.

The district court, when the case first came before it on error, so held, but because these alleged judgment creditors had not been served with process, this court reversed that judgment because the necessary parties were not before the district court. The case was remanded to the district court, for further proceedings. When these parties were brought in some six years had elapsed. They each demurred, because as to each, the proceeding in error had not been commenced within three years from the rendition of the judgment on the demurrer of February 20, 1871. The district court not only sustained this demurrer as to these creditors, but held, that although their co-defendants, including the administrator, had been served within the throe years, yet as to them also, the court had no jurisdiction, and dismissed the petition in error.

This conclusion is incorrect if the proceeding in error was commenced within three years from February 20, 1871. The petition in error was filed May 12, 1873, and service was made on Hawes, administrator, Wctherholts and Law, March 5th, 1873. The summons was returned not found as to other defendants.

Section 20 of the code (R. S. 4987,) furnishes by analogy the rule to determine when a proceeding in error is commenced. Robinson v. Orr, 16 Ohio St. 285 ; Buckingham v. Commercial Bank, 21 Ohio St. 131. By that section, it was provided that An action shall be deemed commenced within the meaning of this title, as to each defendant, at the date of the summons which is served on him, or on a co-defendant, who is a joint contractor, or otherwise united vn interest with him.”

If the defendants not served within the three years were united in interest with their co-defendants who were served within that time, then the action is to be deemed commenced as to all, otherwise it is only commenced as to those served. If we were of opinion that there was no unity of interest, still the action was commenced as to those served, and the court erred in holding it had no jurisdiction over the parties served. It obtained jurisdiction over the case and the parties served, but whether it could proceed to judgment, would depend on the question whether the other parties were necessary. If they were, the court would decline to proceed until they were before the court; but if it did proceed, the judgment would be voidable, and not void, for want of jurisdiction. Douglas v. Massie, 16 Ohio, 271.

We are of opinion, however, that there was such a unity of interest between defendants served and those not served, as to prevent the statute of limitations running as to all.

The controversy related to the distribution of a fund arising from a sale of the land. The administrator held this fund in trust for the parties entitled thereto. He is charged with col- , luding with his co-defendants John and Mary Sidener, Jr., to defraud the estate. Mary Sidener and her vendees are claimants of this fund, setting up their equities thereto. A judgment in her favor is against the claims of the administrator and these judgment creditors, and they are all united in interest in the judgment rendered in their favor sustaining the demurrer to the cross-petition filed February 20, 1871.

It :s to their interest to maintain the judgment of the common pleas, holding that the answer and cross-petition did not entitle Mary Sidener to any relief. They are so united that it would be impossible to render any judgment against Hawes, administrator, which would not affect the rights of his co-defendants, the judgment creditors. For this reason, we think the proceeding in error was commenced within the time, service having been made on the administrator within the three years, the time then allowed for commencing such action. Buckingham v. Commercial Bank, 21 Ohio St. 131.

II. It is also assigned as error, that the court of common pleas erred in ordering and in confirming the sale.

At the time this was done, the amended answer and cross-petition of Mary Sidener had not been filed. The petition on its face was sufficient, if true, to authorize an order of sale. In the original answer and cross-petition the validity of the debts alleged in the petition were not disputed.

The only defense then before the court was, that the estate had been fully administered in Kentucky, and that this land had been sold and conveyed by the heir with the consent of the Kentucky administrator, and the proceeds applied to preferred debts.

This sale by the heir was no bar to a judicial sale to pay valid debts of the ancestor. The creditors had the right to a public sale, under an order of court.

This the court ordered, reserving all rights and equities arising on distribution.

As the pleadings then stood, there was no error in ordering the sale.

III. Again, it is urged that there is no special finding of the truth of the allegations of the petition, as a predicate of such an order.

The action came under the provisions of the code, and was in a court of general jurisdiction. It will therefore be presumed that such proof was made as will support the judgment, the allegations of the petition being sufficient to warrant the judgment.

The judgment of the district court dismissing the petition in error is reversed, the judgment of the common pleas sustaining the demurrer of February 20, 1871, overruled, said demurrer is overruled, and cause remanded to the common pleas for further proceedings on said answers and cross-petitions.  