
    Moore v. Chittenden.
    The defendants, in an action against vendor and vendee, to set aside and cancel a deed on the ground of fraud, though both defendants are necessary parties defendants, yet where the only relief sought is a cancellation of the deed, are not united in interest within the meaning of section 4987, Revised Statutes.
    • Error to the District Court of Franklin county.
    Motion by Henry T. Chittenden, defendant, to dismiss petition in error as to him.
    And like motion by Mitchell and Watson to dismiss petition in error as to them.
    The petition in error prosecuted by John A. Moore et al. seeks to reverse a judgment rendered at the March Term 1881, ■ of the district court, dismissing an action therein pending against said Chittenden, and Mitchell and Watson, and one William Shields. The petition in error was filed in this court naming all the above named defendants as defendants in error and a summons in error was served upon William Shields, within two years from the rendition of the judgment sought to be reversed, but no summons in error was served upon either of the other defendants until after the expiration of that period, nor has the last named defendants waived the service of summons or otherwise entered their appearance in the proceeding.
    The judgment sought to be reversed is as follows :
    “ T-liis day came the parties and their attorneys, whereupon this cause came on to be heard upon the petition, the separate, joint and several answers of said James Watson and John G. Mitchell, the separate answer of said Henry T. Chittenden, the separate answer of William Shields, the reply of the plaintiffs filed January 8, 1879, the reply of the plaintiffs filed August 16, 1879, and the testimony, and was argued by counsel ; on consideration whereof the court being fully advised in the premises, doth find each and all of the issues joined between the plaintiffs and the said James Watson and John G. Mitchell in favor of the said Watson and Mitchell, and that the equity of the case is with them. And the court doth further find each and all of the issues joined between the plaintiffs and the said Henry T. Chittenden in favor of the said Chittenden, and that the equity of the case is with him. . And the court doth further find the issues joined between the plaintiffs and the said William Shields in favor of the said Shields, so far as the same relate to the sale and conveyance by him made under and in pursuance of the order of the court of common pleas of Franklin county in the pleadings mentioned of the real estate therein described, and so far also as said issues relate to the legality, validity and bona fidesoi said sale and conveyance. It is therefore ordered, adjudged and decreed that the petition of the plaintiffs be and the same is hereby absolutely dismissed as against the said James Watson and John G. Mitchell with costs. And it is further ordered, adjudged and decreed that the plaintiffs pay the costs made upon the issues joined between them and said Watson and Mitchell within sixty days from the close of the present erm of court, or in default thereof that execution issue for the same. It is further ordered, adjudged and decreed that the said petition be and the same is hereby’absolutely dismissed as against the said Chittenden, with costs. And it is further ordered, adjudged and decreed that the plaintiffs pay the costs made upon the issues joined between them and the said Chittenden in sixty days from the close of the present term of this court, or in default thereof that execution issue for the same. It is further ordered, adjudged and decreed that the said petition be and the same is hereby absolutely dismissed as to said Shields in so far as the same relates to the said sale and conveyance of the real estate in the pleadings described, and the.legality, validity and bonafides of .said sale and conveyance, and on plaintiffs’ motion it is further ordered that said Shields, within forty days from this date report to the court of common pleas of Franklin county the present condition of the said fund produced by said sale of said real estate, and that all the issues between the plaintiffs and said Shield as to said fund be heard and determined by said court of common pleas after the filing of his said report. The said Shields excepts to the last stated order directing him to report the present condition of said fund, and thereupon the plaintiffs except to the several findings, orders and judgment of the court against them, and filed in court a motion for a new trial of this case for reasons on file, which motion was submitted to the court and by the court overruled, to which ruling the plaintiffs except and the court gives the plaintiffs thirty days within which to prepare a bill of exceptions to be signed by the court, and the same is hereby ordered to be made a part of the record.”
    The nature of the original cause of action as stated in the petition was as follows:
    
      “ The plaintiffs say that heretofore, to-wit: on or about the 25th day of February, a. d. 1852, one John Armstrong, theretofore a resident and citizen of the county of Licking, Ohio, departed this life testate, and seized in fee simple of the following, with other, real estate, bounded and described as follows, to-wit” (describing a tract of land embracing about 38 acres).
    “ That by the last will and testament of said John Armstrong, deceased, lie gave and devised the real estate aforesaid to his daughter, Isabel Moore (the wife of A. J. Moore, and. mother of plaintiffs), to hold to her during her natural life, and at her death to be divided equally among her children. . . That afterwards, to wit: on the 16th day of September, a. d. 1867, the defendant, William Shields, was appointed aiid qualified as administrator de bonis non of said estate, with the said will annexed. .'. That said II. T. Chittenden is, and has béen ever since the appointment of said Shields as administrator de bonis non of the estate of said Armstrong, as aforesaid, an attorney and’ counselor at law, . . . and said Chittenden was, during that time, and until recently has been the trusted legal adviser of said plaintiffs, and their said mother, Isabel Moore, the devisee of said life estate, in said premises as aforesaid. And that while such fiduciary and confidential relations towards plaintiffs, and their said mother existed, he wrongfully and fraudulently conceived and undertook to carry out a plan, scheme and device to procure the title to said real estate, by contract, or judicial sale, for a sum much less than its real value, and against the provisions of said will so far as plaintiffs’ contingent remainder therein as aforesaid,'and to that end, and in collusion, or acquiescence on the part of said Shields, the administrator de bonis non with said will annexed of the estate of .said John Armstrong, deceased, the testator, he, the said Chittenden, and Smythe and Sprague, as the attorneys of said Isabel Moore (said Smythe and Sprague, being at the same time the attorneys of said Shields), did file a petition in said court of common pleas within and for said county of Franklin-, on or about the 1st day of October, a. d. 1867, for and in the name and behalf of said Isabel Moore, as plaintiff, and against the said plaintiffs herein, and said William Shields, as such administrator, &c., as defendants. . ’. That notwithstanding the want of service or voluntary appearance on the part of plaintiffs herein, and of the jurisdiction of .said court of their persons, or the subject of said action,' such proceedings were had in said case, that on pretence of an order.and decree of said court, at the November Term thereof, a. d. 1S67, in said case, wherein the said Isabella A. Moore was named as plaintiff, and the said John A. Moore and others, defendants, the said Wil-Jiam Shields, as administrator de bonis non, with the will annexed, of said John Armstrong, deceased, made report-“that he caused said real estate to be appraised by the oaths of George W, Manypenny, William A. Platt and James L. Bates, at $800 per acre, making for the thirty acres the sum of $24,000 ; and that after advertising the same for more than thirty days' in the Daily Ohio Statesman, dee., he did, on the 15th day of September, a. d. 1868, offer the said real estate for sale at-public vendue, at the door of the court-house, in the 'city of .Columbus, whereupon John G. Mitchell, James Watson and Henry T. Chittenden bid therefor the sum of $16,000, to be'paid-in pursuance of the advertisement of sale, and no person offering to pay any greater sum, and the said parties in interest-having assented to a sale for that sum. Plaintiffs say that the supposed order and decree of said court authorizing said sale, provided that said real estate should not bo sold for less than its appraised value, unless said parties otherwise agree, and-plaintiffs deny that they did so agree, or that said court had any jurisdiction or authority to make, any such order or conditional decree, or that said real estate was in fact sold at public vendue at the time and place aforesaid. And that such pretended sale was afterwards, to wit: on the 22nd day of September, a. d. 1868, approved and confirmed by said court, and said Shields ordered to make a deed for said real estate to the purchasers, and to pay taxes thereon and costs out of the proceeds of such sale. That no order or direction was made or given by said court as to the investment of the proceeds of said-supposed sale as required by law, and the ‘ Act to provide for the sale or lease of estates tail in certain cases,’ nor did said court find that the price obtained is'(or was when sold) the reasonable value of the estate sold, before or at the date of said supposed order directing said sale to be made as aforesaid, or at the time of the confirmation of said sale, and authorizing a deed to be made as aforesaid. That all of the proceedings in such case, for the sale of said real estate, the procuring of said order and decree, the report of said pretended sale, and the procuring a confirmation thereof as aforesaid, by said Chittenden, Mitchell and Watson, and Shields, were unlawful, and in fraud of the rights of plaintiffs herein : and in pursuance of the ¡fian, scheme and device of said Chittenden to procure the title of said real estate as aforesaid, and that said Mitchell and Watson, and Shields became and were parties and privies to the same. That Mitchell and Watson, and said Chittenden, were the principle parties in interest, and jointly interested ir said sale, and the profits to be derived therefrom. That at the time of said supposed sale to said Mitchell and Watson, and said Chittenden, as reported by said Shields as aforesaid, said real estate was worth from $24,000 to $30,000, as plaintiffs now believe, and charge the truth to be, and being in the corporate limits of the city of Columbus, in said county, its sale at that time, must necessarily and without any doubt do substantial injury to the said plaintiffs', and the heirs in tail and remainder as aforesaid. That said Chittenden, Mitchell and Watson have sold apart of said real estate-, and made large profits from the same; and that said Mitchell and Watson still hold possession of the residue, being a large and valuable part of said real estate, under said proceedings; and the deeds from said Shields to them as aforesaid, and deeds of quit-claim from said Chittenden to them for his pretended interest therein of one undivided half as joint purchaser thereof as aforesaid.”
    The prayer of the petition was as follows:
    “ The plaintiffs therefore pray that said defendants may be made parties herein, and that the rights of said plaintiffs, and each of them, under said will in the premises and real estate aforesaid may be adjudged and determined, and the supposed title to, and title of said Mitchell and Watson, and said Chittenden, as to so much of said real estate at least as is still in their possession, or under their control, or the possession or control of either of them, be set aside and held for naught; and that they, and each of them, may be required to account for the proceeds of any and all sales made by them, or either of them of any part of said real estate to innocent purchasers, over and above the amount they, or either of them, may have paid to said Shields, on the supposed sale thereof by him to them as aforesaid, or in case said sale is not set aside, and held for naught, and said Mitchell and Watson and Chittenden required to account as aforesaid, then that they may be adjudged and required to pay for said real estate the further sum of $8,000 the balance of the appraised value thereof, as aforesaid, together with interest on the same from the 15th day of September, 1868, and that said Shields be required to account for all of said purchase money, as aforesaid, and required to invest the same under the direction and approval of said court as aforesaid, or that such other proper person may be appointed by the court to be qualified and required to make such investment. And that said plaintiffs, and each of them, may have such other and further relief in the premises as they, or either of them, may be entitled to in law or equity, and such order and decree herein as equity may require.”
    
      Harrison, Olds & Marsh, for the motion.
    
      Charles Follett efe Son and F. W. Wood, contra.
   McIlvaine, J.

The right to prosecute a petition in error to reverse the judgment of an inferior court, does not exist in this state except as conferred by statute. Hence, these motions must be granted unless the plaintiffs in error show their right to prosecute this proceeding against the parties moving to dismiss it.

Section 6723, Revised Statutes, provides, No proceeding to reverse, vacate or modify a judgment or final order shall be commenced unless within two years after the rendition of the judgment,” &c. The question is, was this proceeding, as against Chittenden, and Mitchell and Watson, commenced within two years after the rendition of the judgment sought to be reversed. This question depends on the proper construction and application of section 4987, which by analogy, applies to proceedings in error. This section reads as follows:. “ An action shall be deemed commenced, within the meaning of this section, 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 in interest with him.” “ A co-defendant united in interest with him ” does not embrace every co-defondant in the original action who was a proper, or even necessary party to the action. It may be conceded that all those united in interest with him were proper and necessary parties, bnV on the other hand, it is clear, that ’ all proper, and even necessary, parties defendant, are not united in interest. Hence, if Shields, who lias been served with process in error within the time limited, was not united, in liability with Chittenden, Mitchell and- Watson, who were not so served within, the time limited, there is no authority to prosecute the latter by bringing them into court by summons in error, after the expiration of the time limited for commencing such proceeding, unless the form of the judgment makes all the. defendants below united in interest.

We think it could not be successfully maintained, that a general judgment dismissing an action against all the defendants, would create a unity of interest between them within the meaning of ■ this section. True, they would have a common interest in defending such judgment, but not a unity of interest, unless indeed, the alleged liability was joint. But in the case before ns, the findings and judgment were several.

Shields had no interest in the judgments in favor of Chittenden, Mitchell1 and Watson, and these have no interest in the finding and judgment in favor of or against Shields.

This brings us to consider whether the plaintiffs below sought to enforce a joint or united liability ■ against the defendants.

1 The prime object cf the action was to set aside a deed or conveyance executed by Shields, as trustee of plaintiffs, to the other defendants. The foundation for this" relief was the alleged fraud 'of Chittenden, “ in collusion or acquiescence on the part of said Shields,” to which said Mitchell and Watson became “ parties or privies.” To this proceeding Shields was a necessary party; but was not united in interest with the other defendants in making a defense, as no redress on the ground of fraud, as against Shields, was sought, save only the' cancellation o'f the deed, and such decree could in no wise have affected him. All other redress, on the ground of fraud in the purchase of the land, in case cancellation of the deed was not obtained, was against Chittenden, Mitchell and Watson. On the other hand there is no pretense that Chittenden, Mitchell and Watson were at all interested in any relief prayed for, as against Shields. Hence, we think these defendants were not united in interest with Shields within the meaning of the statute.

I have referred to the prayer of the original petition, not because the nature of the interest, whether united or not, can be determined by the terms in which relief is sought. That question must be determined by the facts pleaded. Eut the specific relief prayed for is such, that it shows that in the mind of the pleader, the liability was neither united nor joint. The action was not to recover damages for the alleged fraud, but to set aside the deed, and if that could not be done, to compel those who had come into the possession of the property to account for its full value. It is not alleged that Shields had secured any use of the property to himself. Hence, the prayer for general relief does not change the character of the several liabilities sought to be enforced in the suit.

Motion granted.

Johnson, C. J.,

dissenting. A careful analysis of the case will show that the primary purpose of the action below was to set aside a conveyance and cancel a deed, made under the color of an order of salp fraudulently procured by the united action of Shields, Chittenden, Watson and Mitchell. These allegations were pat in issue by separate answers. This issue was found in favor of these four defendants. All were united in interest in this defense, though answering severally. All were so united on error in maintaining this judgment in their favor. All would be jointly affected by a judgment in favor of the plaintiffs.

Shields’ administrator, as vendor, and the others as vendees, were liable jointly either to have the land restored to plaintiffs, or to make compensation if the land had passed to bona fide purchasers.

Again, Shields was the trustee to hold and invest the purchase-money arising from the sale, and if the sale was allowed to stand, then the prayer was that the difference between the appraisement §24,000, and the price paid by the vendees $16,000, should be paid by the vendees to the vendor, to be held by him as executor or trustee for the benefit of plaintiffs. If this relief had been granted, both vendor and vendees were necessary parties' to the decree, but it was refused and a judgment dismissing plaintiff’s petition in that behalf was rendered. To reverse this all the defendants were necessary parties defendant, and all were united in interest in maintaining this judgment against plaintiff.

Again, there was a general prayer for equitable relief. This gave the court the power either to cancel the deed and restore the title to the heirs, and in so doing order a return of the $16,000 by the vendor to the vendees, or to allow the title to stand, and decree such additional compensation to the heirs,, as the value of the land exceeded the price paid. If all were, as charged, guilty of fraud, all four defendants were jointly liable to a money judgment for this difference. But on this issue judgment was against the plaintiffs and in favor of all the defendants. They are united in interest in maintaining this judgment, though in form it may be several.

If the majority of the court is correct, the fraudulent vendees are now out of court, and should this court reverse the judgment in this respect, it will be unable to render the judgment that the court below should have rendered, as the vendees who are thus jointly liable have been dismissed.

Thus the court will be deprived oí the power to render any adequate judgment for the wrongful acts of all.

For these and other reasons, I cannot assent to the judgment. My dissent is not to the syllabus, but to the construction which is placed upon the pleadings and judgment below.

I think all defendants, though not joint contractors, are “ otherwise united in interest,” and therefore that service on one saves the case as to all, as is settled by a great number of • cases in Ohio, with which this opinion is manifestly in conflict, especially with Hawes v. Sidener, 37 Ohio St. 532, 6th point, where the exact question was decided. See also Buckingham v. Commercial Bank, 21 Ohio St. 131; Secor v. Witter, 39 Ohio St. 218; Wilkins v. Phillips, 3 Ohio, 49; Meese v, O’Keefe, 10 Ohio, 362; Bradford v. Andrews, 20 Ohio St. 208; Massie v. Mathews, 12 Ohio St. 361; Sturgess v. Longworth, 1 Ohio St. 544; 10 Ohio, 17.  