
    Lessee of Ludlow’s Heirs v. James McBride.
    Prior possession by an ancestor, claiming title, sufficient for the heirs to recover upon in ejectment, against subsequent possession of less than twenty years, without title.
    Tinder the law of 1795, for settling intestates estates, orphans’ court could not direct sales of land by administrators, except of lands lying in the county where the court sat.
    This was an action of ejectment, to recover lot No. 110, in the town of Hamilton, Butler county. The plaintiffs having proved themselves children and heirs at law of Israel Ludlow, deceased, and that they were infants at the time of his death, which occurred in January, 1804, gave further evidence, that in the year 1803, their ancestor, Israel Ludlow, was in possession of a large tract of land, including the lot in controversy, and having laid out on it the town, of Hamilton; that he died in possession, and that the land was subsequently taxed in the name of his heirs, and the taxes paid by his ^executors, from funds belonging to the estate; and that, in 1812, the defendant, McBride, entered into possession of tho lot, under an alleged purchase from the executors of Ludlow.
    The plaintiffs here closed their testimony, when the defendant’s counsel insisted that the evidence did not make a case upon which the plaintiffs could recover, and ought to be overruled. But the court expressed their opinion that the testimony made a prima facie case for the plaintiffs, and therefore must be submitted to ■the decision of the jury.
    The defendant then offered in evidence a transcript, duly certified, of certain proceedings of the court of common pleas of Hamilton county, consisting of an order, made on the application of the executors, at May term, 1804, in these words:
    “Administrators of Israel Ludlow, deceased, exhibit an account ■current of said estate. John Ludlow and James Findlay, two of ¿the administrators, sworn, and pray an order to sell real estate, to satisfy the debts, etc. Court grant the prayer of administrators, excepting and reserving the farm and improved lands in Cincinnati, together with the houses and lots in Cincinnati.”
    And also, of an order of the same court, made, at August term, 1805, but, when made, directed to be considered as made at May term, 1805, in these words:
    “ On application of the administrators oí Israel Ludlow, deceased, to extend the order for the sale of real estate, to discharge the debts of the deceased, court authorize administrators to sell the houses and lots in Cincinnati, and any other property, except the mansion house and farm in the country, so that the sale does not amount to more than $10,000.
    In connection with these orders, the defendant offered in evidence, a deed to himself, from the executors of Ludlow, for the lot in dispute. To the admission of this evidence, the plaintiffs objected, and the court sustained the objection. A verdict was found for the plaintiffs, and the'defendant moved for a new trial, on the ground that the court erred in considering the evidence of title given by the plaintiff sufficient to put the defendant on his defense, and in rejecting the evidence offered by the defendant. The decision of this motion was adjourned to the whole court at Columbus.
    *Other points arose on the trial, which were discussed by counsel in the argument, but not being decided upon, the report is confined to the points decided.
    Benham, in support of the motion :
    1. The court erred in the instructions given to the jury, at the request of the plaintiffs, in relation to the possessory of title.
    2. The court erred in rejecting the administrator’s deed, and the transcript of the proceedings, and orders of the court of common pleas of Hamilton county, which the defendant offered in evidence in connection.
    
      First. The lessors of the plaintiff claim this lot as heirs at'law of Col. Israel Ludlow, deceased, upon the following evidence of title, namely, that Ludlow, their ancestor, was in the year 1802 or 1803, reputed to be the proprietor of the town oí Hamilton; that he gave to Mr. Reily, the witness, a plat oí said town, and informed him he had sold lots to sundry persons, and requested him to see that the persons to whom he had sold made their improvements upon their proper lots. That Ludlow was in Hamilton when the commissioners met to fix the seat of justice, and made the donation for public buildings, on which the court house now stands. That he died in the year 1804, and at the time of' his death was in possession, and reputed the owner of the unsold lots. That after his death, Eeily, as agent for his administrators, paid the taxes upon the land in said town, out of money received- by him on account of the administrators, from proceeds of lots sold by them, as belonging to their intestate. That in 1812, the defendant, James-McBride, obtained possession of the lot in question from said administrators, and claimed to have obtained it in fee simple, and has been ever since, and is now in the occupancy thereof. They then proved that they were minors at the demise of their ancestor, and ¿rested their case.
    
      First. I contend that this proof does not make a prima facie.case for plaintiff, for it is well settled he must recover upon the efficacy of his own, and not upon the weakness of his adversary’s-title. This principle has become an element in the law of this action, he must prove a legal title of *himself, at the time of the demise, compatible with it, or he can not prevail. 7 Wheat. 161; 1 Johns. Cas. 283; 2 Phil. Ev. 170. Here, the heirs rest upon a prior constructive possession. I say constructive, as contradistinguished from- actual, or possessio pedis. A constructive possession can never become adverse, or toll an entry. 2 Johns. 330. Possession is not title; it is presumptive evidence of title, and I admit that in this possessory action, the first possession when no title appears on either side, is the better evidence of right, until countervailed by an opposite presumption, and so on toties quoties. In 10 Johns. 356, Kent observes, that this presumption of right, after a continued actual possession for twenty years, ripens-into a right of possession, which will toll an entry. In the case last, mentioned, the court decides that a prior possession under a claim of right for a less period than twenty years, formed a presumption of title sufficient to put the tenant on his defense; but it must appear that such prior possession had not been voluntarily-relinquished, without the animus reoertendi; and that the subsequent possession of defendant, was acquired by a mere entry, without any color of right. Id. 364; 1 Caine, 190; 2 Serg. & R. 53; 2 Johns. 22; Cro. Eliz. 437. In the last case of Bateman v. Allen, the jury found by their special verdict, that plaintiff had the prior possession, and that defendant enter.ed upon his possession, without any claim, or color of right, and upon this finding, judgment was rendered for plaintiff.
    The case which plaintiff’s counsel cites from 2 Saund. Ill, does not militate against this doctrine. That case, however, is moagerly reported, and Saunders remarks “ that the law was not argued.” The principle to be extracted, upon analysis of all the authorities, is, that this action will lie upon evidence of an actual prior possession against a subsequent possession acquired by a mere •entry, without any claim or color of right; as against squatters, intruders, or trespassers. 4 Johns. 202. Here the lessors have neither shown an actual possession, nor that defendant entered affirming their possession; nor that he entered as an intruder, without claim or color of title. When a person claims to recover possession, it must be clearly proved, and the payment of taxes, ■and execution of partition deed are *not sufficient evidence •of actual possession. Jackson v. Myers, 3 Johns. 388, 396.
    
      Second. I come now to inquire into the nature of McBride’s entry and possession. In 1802, he purchased the lot in question, from Ludlow’s administrators, who put him into possession, and he has remained in the undisturbed occupancy thereof ever since» claiming it in fee simple. Here then is a lawful entry, and possession under claim and color of title, not in subordination to the title of the heir, but hostile and adverse to his title. When a person seized of lands in- fee dies intestate, it descends to the heir who takes cum onere ; he is invested with the legal title* by-operation of -law, but the land is liable for the debts of his ancestors, and for that purpose is sub modo assets in the hands of his administrator. 1 Dall. 481. A grantee from an administrator does not claim under the same title with the heir ; the former claims by purchase, the latter by descent; the claims are emphatically antagonist. The title acquired under an administrator’s sale, who represents his intestate, is as completely adverse -to the heir, as if acquired by purchase from the intestate in his lifetime. A tenant in fee is not estopped from denying the title of his vendor, for he holds -adversely to all the world ; the doctrine applicable to landlord and tenant is irrelevant. 13 Johns. 406.
    If A. sell B. a tract of land in fee, and put him into possession, and B. afterward discovers that A.’s title is defective, B. -may protect himself by purchasing in the better title; since it -is clear if A. were to purchase it would enure to B.’s benefit. 8 Johns. 139; 1 Johns. Cas. 81; 5 Johns. 389; 12 Johns. 207. Persons may hold under the same title, and yet hold adversely; or adverse possession would be a solecism. If A. died seized of land in foe, having issue two sons, and the younger son enter by abatement into the land, before his elder brother (and heir at law), the statute will not operate in favor of his ouster; for the law presumes that he entered, claiming as heir to his father, by which title the elder brother also claimed. Coke Lit. 8 396.
    But if the younger son should have the actual possession, and his sister should oust him, she would hold adversely to the elder, for her possession could not be intended to maintain his possession. B. N. P. 102; Co. Lit. 161, 252; vide also 10 East. 588.
    *To constitute an adverse possession it is not necessary there should be a rightful title; it must, however, be a possession under claim or color of title, and exclusive of any other right. 9 R. 180; 13 Johns. 118; 18 Johns. 44; 2 Caine, 189.
    From the nature of McBride’s possession, which is hostile and adverse to the lessors of the plaintiff, as I think I have clearly shown, I would draw two deductions, either of which will destroy the right of the plaintiff to recover :
    1. That an actual prior possession (and not constructive) aleña makes a prima facie case for plaintiff, and that the presumption of right in such a case is countervailed by a subsequent adverse possession for about seventeen years, which is about the time McBride has been in the peaceable occupation of the lot in controversy.
    2. That if this be the nature of defendant’s possession, the court erred in rejecting the deed from Judge Symmes to Jonathan Lay-ton, for defendant had a right to protect himself under it.
    3. The defendant offered in evidence in connection with his deed, from the administrators, for the lot in question, the orders of the court of common pleas, of Hamilton, dated May 8, 1804, and December 17,1810. To the competency of this evidence two objections have been stated :
    
      First. That the common pleas in 1804 had no jurisdiction of the-subject matter, and that, therefore, the order was an act coram nonjudice.
    
    
      Second. That if the court had power to make the order, it could not extend to lands beyond the county. This objection applies equally to both orders, of 1804 and 1810.
    
      These objections involve the probate and testamentary jurisdiction of the court of common pleas. This tribunal was ordained and established, and a portion of its jurisdiction defined by the constitution, the fifth section and third article of which provides that the court of common pleas in each county shall have jurisdiction of all probate and testamentary matters, granting administration, the appointment of guardians, and such other cases as shall be prescribed by law. In 1803, the act organizing tile judicial courts was passed, which conferred upon the common *pleas plenary jurisdiction in all probate and testamentary matters, as provided by the constitution, and abolished the oi'phan’s court and all other courts established under the territorial government. Vide 1 S. S. 40, secs. 7, 28. It is manifest from these references that the common pleas, in May, 1804, when the first order was granted, had unlimited testamentary jurisdiction, and it is equally clear “ that the act for the settlement of intestates estates,” adopted from the Pennsylvania code, and which took effect August 15,1795, conferred the power upon that court to allow the sale of lands or tenements upon the application of an administrator for the payment of debts, etc. Land Law of Ohio, 381, sec. 7. But it is objected that this order did not extend to lands beyond the limits of Hamilton county. This objection will be found upon examination to be more specious than solid. I ask upon what ground you will impose this limitation ? The order itself, ex vi termini, extends to all the real estate of the decedent except the “ farm and improved lands near Cincinnati, and the house and lots therein.” The courts of common pleas in each county derive from the constitution and the act of 1803, defining their jurisdiction, and the act of 1795, unlimited power to authorize the administrator to sell the lands and tenements of bis intestate, for the payment of his debts, etc., without reference to their locality, provided they lie within the state.
    The administrator is an officer appointed by the court, who acts under a general law, and represents the person of his intestate in respect to his personal property, which vests in him, co-extonsive with the state, upon the grant of administration, and his letters relate back to the death of his intestate. Comyn’s Dig. B. 1; 2 Roll. Abr. 554. And the law regards the real estate of the decedent as a fund in the hands of his administrator for the payment of debts, etc., to be resorted to when the personalty is absorbed; a qualified interest in which, also, is vested in the administrator, co-extensive with the state. 1 Dall. 481.
    In England, testamentary matters belong to ecclesiastical cognizance, and the grant of administration is regulated by the bona notabilia, and the extent of the administrator’s rights depends upon the clerical dignity of the personage who makes the appointment. If all the goods and chattels of the ^deceased lie within the same jurisdiction, the bishop or ordinary grants administration; but if he have bona notabilia in two distinct dioceses, administration must be taken out before the archbishop or metropolitan. Blac. C. 509. Since, then, the rights of an administrator under our law are co-extensive with the state, I insist there is nothing in the nature of the application for the order to sell lands which can give it a local character. Real and mixed actions, and actions brought for injuries to the freehold, and actions founded upon privity of estate, are said to be local; but short of the black letter of Plowden and Coke we can not ascertain the reason. Land may be subject matter of a sale and yet the venue be transitory. A bill in chancery for the specific execution of a contract for the sale and conveyance' of land, may be filed where the defendant lives, for the decree operates in personam.
    
    This branch of the common law, however, affords no analogies, and sheds no light upon the problem under examination. I have said that the real estate of the decedent is convertible, mesne, or qualified assets, in the hands of his representative. The law gives him the power to sell it; but as ^ check upon him, and to guard the interest of those beneficially concerned, such as creditors and heirs, against the malfeasance of administrators, he must exercise this power under the supervision of the court. The law of 1795 provides, “-that it shall be lawful for the administrator to sell and convey such part or parts of the lands or tenements of the deceased, for defraying just debts, etc., and for the improvement of the residue of his estate, as the orphans’ court of the county where such estate lies, shall think fit to allow from time to time.” The plaintiff contends that this statute confined or limited the jurisdiction of the court of common pleas in 1804, to lands within the county. This, I maintain, is an unsound construction. The administrator may sell such part of the lands or tenements, as the orphans’ court of the county where such estate lies shall allow, etc. The word “ estate,” is said to be synonymous with lands or tenements. Then it would read, “as the orphans’ court of the county where such lands or tenements Lie shall allow.” Suppose the lands and tenements lay in different counties; then, by this construction, the act would be nugatory; for if the word, ^estate be synonymous with lands or tenements, it must in-elude all the lands and tenements of the deceased, and unless they all lie in one county, the orphans’ court has not jurisdiction. This •could never have been the intention of the lawgiver. The orphans’ court of the county where such estate lies : the legislature must have intended, the court and county where the administration was granted : where the administrator had given locality to the estate by filing his inventories, accounts, and exhibits, and where he had given security for the faithful execution of his trust. Let us test the opposite construction, ab inconvenienti. Section ■8 of the act of 1795 prohibited the orphans’ court from allowing the administrator to sell lands, until he exhibited two or more true and perfect" “inventories and conscionable appraisements of all the intestate’s personal estate, whatsoever; as, also, a just and true account, upon oath, of all the intestate’s debts which shall have come to his knowledge.” Now, suppose the decedent to have lands in every county in the state. Before the administrator could obtain an order to sell them, he must file in the orphans’ court of each county, the exhibits, inventories, and appraisements above required. The court granting the order for sale must settle with the administrators for the proceeds thereof. Hence, his proceedings would be scattered all over the state, and records of the orphan’s court in each county must be examined to determine what he has done. Again, the court in one county could not know what had been done by the court in another. This construction would have enabled the administrator to practice a fraud upon the estate, by selling all the lands and tenements, when a part would have ■been sufficient to liquidate the debts, etc.
    But, if under the law of 1795, the jurisdiction of the orphans’ court was confined to lands within the county, with what propriety, ■or by what rule of construction, can this limitation be imposed upon the common pleas, which I have shown by the constitution, and act of 1803 had unlimited testamentary jurisdiction. The orphans’ court was inferior, and of limited powers, and was abolished by the act last mentioned, which defined the jurisdiction of the common pleas. So much of the act of 1795 as related to and confined the jui'isdiction of the orphans’ court, became a dead ^letter upon the abolition of that tribunal, and can upon no principle of sound construction, fetter or limit the jurisdiction of the common pleas to lands within the county; the act defining its jurisdiction contains no such restriction.
    Garrard, for plaintiff:
    ■The first question of law, arising from the statement of the case, is, whether the lessors of the plaintiff showed a sufficient title to enable them to recover? The counsel for the plaintiff contends that the possession of the ancestor of the lessors of the plaintiff, and a descent cast upon them, was a sufficient title upon which to recover in ejectment, where no title appeared for the defendant.
    . In the case of Bateman v. Allen, Croke Eliz. 437, it was held that the plaintiff had a right to recover in ejectment, where it was found that the defendant had not the first possession, but entered, claiming the title of the plaintiff.
    In Allen v. Rivington, 2 Saund. 111, it was decided that “where upon a special verdict, a prior possession was found for the plaintff, and no title for the defendant, the matter of law Was never argued ; for priority of possession alone gives a good title to the plaintiff, against the defendant and all the world, except the rightful owner.”
    In 4 Taunton, 547, and 8 East. 353, it was held that mere prior occupancy, however recent, gives a good title to the occupier, whereupon he may recover, as plaintiff, against all the world, except such as can show an older and better title in themselves.
    In 2 Johns. 22, it was decided that proof of possession for a less time than twenty years, was sufficient to put the defendant on proof of title; and in 4 Johns. 202, it was held that a person who had been .in possession for eight or ten years, under color of title, was entitled to recover in ejectment, against a mere intruder or trespasser, or one for whom no title appeared.
    In Jackson v. Myers, 3 Johns. 388, it is laid down to be law, that prior possession is presumptive evidence of.a fee, and is suchproof of title as will put the defendant upon proof of his title.
    In 6 Johnson, 218, the court intimate the same doctrine as in the *above cases; and in Smith v. Burtis & Woodward, 9 Johns, the court say, “ that we presume title, from the ten years, sufficient to put the defendant on proof of his title.”
    In Smith v. Lorillard, 10 Johns. 363, all the former authorities. are cited and commented on at large, by the chief justice, in delivering the opinion of the court, in which he says: “A prior possession short of twenty years, under a claim or assertion of right, will prevail over a subsequent possession of less than twenty years, when no other evidence of title appears on either side; there are many decisions of this court which look to this point.” “ That the-first possession should, in such cases, be the better evidence of right, seems to be the just and necessary inference of law. The ejectment is a possessory action, and possession is always presumptive of right, and it stands good, until other and stronger evidence destroys that presumption. This presumption of right, every possessor of land has in the first instance, and after a continued possession of twenty years, under pretense or color of right, the actual possession ripens into a right of possession, which will toll an entry.
    “ But until the. possession of the tenant has become so mature, it would seem to follow, that if the plaintiff shows a prior possession, and upon which the defendant entered without its having been formally abandoned, as derelict, the presumption which arose from-the twenty years possession, is transferred to the prior possession of the plaintiff, and the tenant to recall that presumption, must show a still prior possession, and so the presumption may be removed from one side to the other, ‘toties quoties,’ until one party or the other has shown a possession which can not be overreached, or puts an end to the doctrine of presumption, founded on mere possession, by showing a regular legal title, or a right of possession.”
    The possession contemplated by this rule of law, is not such a possession as gives an indisputable title or right of possession, as twenty years, but merely such a possession as the defendant can rebut, by showing an older and better possession, with which he is connected; and the reason why a prior possession can not avail against a subsequent possession of twenty years, taken and held against parties under no disability, is, that such a possession is a good defense, *even against a paper title. And where a possession is shown in the ancestor, claiming title, and a descent cast, the heir will not only be held to be in possession, but also to have the right of possession connected with the fee, upon which the law will not permit those having right, to enter and evict the heir.
    ^The instruction of the court, therefore, upon the sufficiency of the possessory title of the lessors of the plaintiff was correct,, and the defendant has made no case for a new trial, unless the court •erred in rejecting the defense offered by the counsel upon the trial.
    Waiving all other objections to the orders of the court of common pleas of the county of Hamilton, and the deed executed to the defendant McBride, by the administrators of the said Ludlow, the counsel for the plaintiff insists that the orders of the court of common pleas could not operate out of the county in which they were granted, and that they could not constitute a warrant to the administrators to make the sale in question. The language of the .act of 1795, for the settling of intestates’ estates, is “that the orphans’ court of the county where such estate lies,” may order and direct sales in such cases as are provided for by the statute. It is contended by the counsel for the defendant that the word “estate,” as used in this-clause of the statute, should be construed 'to be the place where the intestate died, and where letters of administration were granted, and that it did not apply to the lands or tenements intended to be sold by the administrator. If this construction should be adopted against the plain and obvious reading of the statute, it would apply alike to all cases, as a general rule of construction, upon a statute of a general nature, and not local in its operations, and would alike affect the estates of persons in another state who hold lands in this, and the citizens of our own state. .Should such a construction be adopted difficulties would present themselves which this court seem unwilling to admit, when attempted to be introduced through a similar channel, but under a somewhat different aspect. Should it prevail we should be compelled to admit, as a necessary consequence, the power of other states to pass laws regulating the titles to lands in this; and the jurisdiction of the courts of other states over the ‘laws and the property *of the citizens properly subject to the' courts of •our own state. We should be forced to admit the humiliating doctrine that an administrator,-deriving his powers from the laws •of another state, and acting under the orders and decress of the courts of such state, has the right and the power to come into this state and sell and dispose of the real estate of his intestate, regardless of the laws of this state regulating the titles to her soil, over which she has sovereign and exclusive power of legislation, In the case of Wills v. Cowper and Parker, 2 Ohio, 128, 129, this point seems to have been placed in its true light in a very few ■words. The court say that it is not in the power of any state, by any legislative act, to prescribe the mode in which lands in another state may be disposed of, or the title thereto pass front-one to another. I can not see how this language of the court can be reconciled with the strained construction here contended for and sought to be introduced. The one or the other must be abandoned; they can not both stand as sound and consistent rules of law, and applicable to the same subject matter.
    Este, in support of the motion:
    By the law for the settlement of intestates’ estates, it is enacted that “it shall be lawful for such administrator to sell and convey such part or parts of lands or tenements, etc., as the orphans’ court of the county where such estate lies, shall think fit to allow, order, and direct, from time to time.” Ter. Laws, page 95, sec. 7.
    It is contended that a general order to administrators to sell real estate, given in the county where letters were granted, and where-the estate is finally to be settled up, will not authorize them to sell lands without the county. Upon examining this act it would seem that this construction conflicts with its general tenor. By section 2 it is expressly provided that the administrator’s accounts must be “first examined and allowed of by the orphans’ court of the county where the said administration is granted.” In section 8 it is provided that before an order for the sale of real estate can be made, two or more inventories of the personal estate must be exhibited, and a true account *on oath of the debts that have come to the administrator’s knowledge. The court shall order so much land, etc.
    In this act also, whenever the term estate is used in general-terms, it must be understood to mean all the property of the de- • ceased in the State of Ohio, the term personal, being, I believe, in all places prefixed to the personal estate. By the eighth section,, provision is made for “reserving the mansion house and most profitable part of the estate till the last.” Here the word estate relates to the realty, and clearly conveys the idea that all the real property in Ohio was considered as but one real estate. It also provides, that the lands and tenements to be sold, shall be advertised in the place where they lie. This is all right, and it is sufficient. The court which granted the letters where the inventories, sale bills, and accounts must be filed and allowed, etc., would seem to be the proper court to decide on the propriety os necessity of selling lands. Now, when the law authorizes the administrators to sell the real estate of the deceased, when directed by “ the orphans’ court of the county where such estate lies,” the word estates relates to the whole real estate of the deceased in Ohio, and wherever his mansion house was situate, the residence of the deceased was considered the most profitable part of the real estate, and an order made there, would, in truth, be considered as made where the principal part of the estate was situated ; and as it is contemplated for all the purposes of sale, etc., as indivisible and as one estate, that county would be the preferable place to obtain an order, etc.
    By the eighth section, before a sale can be ordered, two or more inventories must be returned, an account exhibited, and a deficiency of personal assets appear, and the mansion house and most profitable estate shall be reserved till the last. Now, what court, I ask, will reserve the mansion house, etc., but that acting in the county where the mansion house is situated? Then, on an application in Hamilton county for the sale of lands, it became the duty ot the court to order every part of the real estate of the deceased in Ohio to be sold before the mansion. If so, the act must have a construction which will sustain such an order. Provision is made in the same section, requiring, with great particularity, the notice of the sale to be given, etc., in the county where *the lands lie. This gives all the notoriety that can be asked.
    There appears to be no good reason for being compelled to get an order in each county where the deceased held lands. The expense is unnecessarily increased; delay is caused, and evidence is to be taken through the state to convince each court of the necessity of granting the order, when the court that granted the letters where all the business is transacted, has knowledge of everything from its own records and the returns on file.
   By the Court :

Several points have been made and argued in this case, which we deem it unnecessary to examine or decide. Most of these involve matters interesting to persons not parties to the case, which must necessarily arise and be determined in suits now pending for property to a large amount. Until those parties are fully heard, we wish to form no opinion that may affect their rights where it is not necessary to decide the case before ns. And it is not necessary to do so in this case.

It is contended for the defendant that the court erred in’ instructing the jury that the possessory title given in evidence by the lessor of the plaintiff, was sufficient to warrant a verdict for the plaintiff in the absence of all proof of title to the premises in the defendant. The correctness of this instruction depends upon that evidence. It was in proof that in 1803, Israel Ludlow, the plaintiff’s ancestor, was in possession of the premises, claiming them as his own; that he died in 1804, leaving the plaintiffs, his children, and heirs at law, all minors; that the administrators of his estate paid the taxes out of the funds of the estate, and, in 1812, sold the, premises as the property of the estate, in their character of administrators, to the defendant, and put him in possession, the.plaintiffs then being minors.

The doctrine is now too well settled to be disturbed, that a prior possession is presumptive evidence of title; and unexplained or uncontradicted, is a sufficient title to recover upon, in ejectment, against a mere intruder. The authorities upon this point are numerous and decisive, both in the English and American courts. It is not necessary that there *should be a continued posses- [255 sion for twenty years, to furnish this presumption of right. Such possession, when both adverse to all others, and continued, rises at length into a right, even against the legal owner of the fee, if once within the protection of the statute of limitations. And, when continued for less than twenty years, may prevail as a presumptive right, until rebutted by proof of prior possession, right of succession, legal title, or other evidence sufficient to defeat such presumption. In cases where no other evidence of title than possession is given by either party, the prior possession must prevail, especially when connected with an assertion of ownership, unless such prior possession has been abandoned, or the subsequent possession been continued until protected by the lapse of time and the statute of limitations.

Prior to 1803, Israel Ludlow, the ancestor of the plaintiffs, was in possession of a large tract of land of which the lot in dispute formed a part, laid out upon it, the town of Hamilton, made donations of lots, which were accepted, sold other lots to individuals, who entered and improved; and being thus in possession, Israel Ludlow, died in 1804. By his death, his estate whatever it might be, in the lot in question, and his possession of it, were cast upon Ms heirs, and they are to be regarded as having the possession by virtue of the descent cast upon them. This possession, upon which, the plaintiffs relied, was not a mere constructive possession, such as «very owner of unsettled land is supposed to have; but the actual seizin, the possessio pedis of their ancestor, transferred to them by operation of law, and continued for them by the administrators, as evidenced by their acts, until the defendant entered in 1812. The charge of the court, that the possession made out in proof, by the plaintiffs, must prevail over the defendant’s subsequent possession, which was not protected by the lapse of time, and the statute of limitations, in the absence of all evidence of title in either party, was correct.

The next error complained of is, the rejection of the evidence offered by the defendant, to show a sale by the administrators to the-defendant, and a conveyance in conformity with that sale. This-evidence consisted of transcripts of certain orders made by the court. of common pleas of Hamilton ^county, in the years 1804 and 1805, authorizing the administrators of Ludlow to sell his real estate for the payment of his debts. The competency of this evidence depends upon the legality of a sale of the lot in question, under these orders. If they conferred no power to make the sale, no right could be created in the defendant, or divested out of the-plaintiffs, by it.

At the time these orders were made, there had been no state legislation, upon the subject of selling the lands of an intestate to-pay his debts; and much doubt is entertained, whether the court of common pleas, who are vested with jurisdiction of probate and testamentary matters, had authority in any case, to direct a sale of the lands of an intestate to pay his debts. If this power was vested in them, it was in virtue of the territorial law of 1795, providing “for the settlement of intestates’ estates’’ and of the jurisdiction over intestate and testamentary matters, conferred upon them by the state law of April, 1803, first organizing the judicial courts.

The law of 1795 specifies the cases, in which the orphans’ court may direct an administrator to make sale of an intestates’ real estate, and prescribes the manner of directing and effecting such sale. The terms employed in conferring this power are these: “that it shall be lawful for the administrator or administrators of such deceased, to sell and convey such part or parts of the said. lands or tenements, etc., as the orphans’ court of the county, where such estate lies, shall think fit to allow, order, and direct, from time to time.” This authority is given by the law, subject to a proviso, that the orphans’ court shall* not “allow or order any intestate’s lands or tenements to be sold, before the administrator requesting the same doth exhibit two or more true and perfect inventories and conscionable appraisements of all the intestate’s personal estate whatsoever; as, also, a just and true account, upon his or her solemn oath'or affirmation, of all the intestates’ debts, which shall be then come to his or her knowledge, etc., then, and in every such case, and not otherwise, the court shall allow such administrator to make public sale of so much of the said lands as the court, upon the best computation they can make of the value thereof, shall judge necessary,” etc. The law ^further provides, that “ the court shall order so many writings, to be made by the clerk, as they shall think fit to signify, and give notice of such sales, and of the day and hour when, and the place whore, the same will be, and what lands they are, and where they lie, which notice shall be delivered to the sheriff or constable, in order to be fixed in the most public places of the county, or city, at least ten days before sale.”

If it bo admitted that the several courts of common pleas, under the state government, in 1804 and in 1805, were invested with the same power and authority over the lands of an intestate that were vested in the orphans’ court under the territorial government, by the law of'1795, the question then arises what was the extent of the po'wers conferred upon the orphans’ court? So far as the courts of common pleas were invested with jurisdiction over the subject matter upon which they may have acted, their decisions and orders are final and conclusive, if not reversed for error. They can not be impeached collaterally, nor will this court inquire whether all the statutory provisions, preliminary to making the decision or order, have been complied with. If the court of common pleas of Hamilton county were clothed with power to make an order to soli the lot in question, and in the exercise of that power have ordered it to bo sold and conveyed, their act is conclusive upon the parties. The grounds and proofs upon which they proceeded are not examinable in this case. The correctness of the opinion given, rejecting the evidence, depends upon these two question : Had the court jurisdiction ovex* the subject matter? Have they exercised that jurisdiction?

By the law of 1795 the power over an intestate’s real estate is in express terms limited to the lands within the county where the court is. “ The orphans’ court of the county whore the estate lies” is authorized to allow or oi’der a sale. The “estate” previously mentioned in this section, and the only one to which the terms such estate ” can apply, is the lands and tenements which the administrator may be authorized to sell and convoy. This authority is to be conferred by the orphans’ court, and its exercise is limited to lands within the county where the court sits. The power, or what is but another mode of expressing the *same thing, the jurisdiction of the orphans’ court over the lands of an intestate, is thus limited, in express terms, by the law creating it, to “such estate,” that is, such lands and tenements as lie in the county. It can by no safe rule of construction be extended to gi’anting administrators authority to sell the intestate’s lands wherever they maybe situate. Administration might have been taken out in a county where the intestate had no lands, although he owned a lai’ge real estate in other and distant parts of the state. In such a case the court possessed no competent means of ascertaining the various facts which they are required by law to ascertain, in making the oi'der for sale, except by ex parte affidavits. They could make no computation of value’upon safe grounds; they could not know what was the most profitable part of the estate,.to reserve it; they could exercise no control over the ministerial officer required to give the notice. The terms of the law confine the court to estates within the county; the obvious policy of the law calls for the same restriction.

It is argued that the term “estate” embraces all the land of the intestate, wherever situate, and that the orphans’ court of the county whore pai't of it lies is authorized to proceed upon the whole as one entire thing, especially the orphans’ court of the county where the intestate resided and made his home. This construction would be adopting a flimsy fiction to control a plain and palpable fact. The real estate of an intestate consists of as many distinct estates as he owned separate parcels of laud. His estate, though joint, or entii’e in the whole, is separate and divisible in the parts. The law in question so treats it, for it directs a sale of so much of said lands, and directs a reservation, till the last, of the “ most profitable part of the estate,” thus parting the estate in express terms.

Another objection to this construction is that where the mansion-house was in one county and the principal but least profitable part of the estate in another county, thé power to direct a sale might be vested in the court of a county where none of the lands sold would lie, because the lands situate in other counties would sell for a sum sufficient to discharge the debts.

*The orphans’ courts were peculiarly domestic. They were established in each county, and were supposed to, as they did in fact, possess peculiar facilities for acquiring correct information of the condition of intestates’ estates, within their jurisdiction. Much was intended to-be confided to their discretion, because their proceedings were ex parte, and, in most cases, operated upon and affected the rights of infants. They were not.empowered to control the title to intestates’ lands, without the county, for the reasons already stated. Their jurisdiction was sufficiently broad, when allowed, upon ex parte application, to control the sales of lands within their county, without adopting a forced construction, against the plain and obvious meaning of the words of' the law, to extend that jurisdiction over all the lands of an intestate within the state. We are satisfied it was not the intention of the law of 1795 thus to extend the power of the orphans’ court; and that by no just interpretation, can it be made to give them jurisdiction over lands out of the county in which they acted.

The property in controversy was not situate in Hamilton county; the title to it could not be affected by any order made in the orphans’ court of that county, had such order expressly contained authority to sell it. Whore there is no legal power, an attempt to act can be followed by no legal consequence. But the orders are in general terms, and as the court had clearly no jurisdiction, except over land in Hamilton county, we are bound to suppose that there was no intention to extend it beyond that county. This construction is perfectly consistent with the terms of the orders. Full effect is given to them, without including any lands but those within the county; and we avoid the conclusion that the court undertook or intended to transcend their jurisdiction. In this view of the case, we consider that the orders for the sale offered in evidence, did not extend to the lot in question, and consequently there was no error in rejecting them.

The validity of the orders, for any purpose, and the effect of subsequent laws upon them, which have been discussed in the arguments, are thus rendered immaterial to the decision of this case, and, for the reasons assigned in the commencement of this opinion, have not been considered.

The motion for a new trial is overruled.  