
    The Lessee of John R. Maxsom v. Joseph Sawyer.
    The court of Common Pleas that appointed a guardian may empower him *<» sell the minor’s land situate in another county.
    To give the court of Common Pleas jurisdiction over a minor, so as to authorize the appointment of a guardian for him, such minor must, at the time of appointment, have an actual or constructive residence within the county.
    'Where a guardian’s sale has been examined and confirmed by the court, and the journal entry shows that a hond has been directed, and securities approved, it will he presumed that the bond was executed.
    A guardian derives his power to act from the appointment and bond. Letters of guardianship need not in fact issue.
    The question as to jurisdiction of the court making the appointment of guardian is open to inquiry. But when the record alleges the fact conferring jurisdiction. Quere.
    
    This is an action of Ejectment from Lake county.
    The cause was submitted to a jury on the last circuit in the county 106] of Lake, and a verdict found for the plaintiff, subject *to the< opinion of the court on the law of the case, arising on an agreed statement of facts, as follows :
    In the year 1828, John Maxsom died, seized in fee of the premises-in question, at Mentor, in the county of Geauga, now in tho county of Lake, in which place he had a legal settlement, and leaving Polly Maxsom, his widow, and the lessor of the plaintiff, his only heirs at law. At the time of his father’s death, the lessor of the plaintiff was two or three years of age.
    On the third of March, 1829, Polly Maxsom, the widow of the said, John, and mother of the plaintiff’s lessor, intermarried with Peter Seely, with whom she resided, at Mentor, aforesaid, until the following winter, when she left him, taking with her the lessor of the plaintiff.. Peter Seeley was living in the spring of 1843.
    On the 19th of April, 1820, Polly Seeley, the mother of the plaintiff’s lessor, entered into a written agreement with John Patterson, of Springfield, in the commonwealth of Pennsylvania, under their hands and seals, by which she covenanted, on her part, to let her son, the-plaintiff’s lessor, live with Patterson, from the date of said agreement until he was fourteen years of age, and not to take him away, nor suffer any other person to do so, if in her power to prevent it, until he attained that age ; and Patterson covenanted, on his part, to provide for the lessor of the plaintiff, in sickness and in health, and to pay all. expenses, etc.
    Immediately after the date of said agreement the plaintiff’s lessor went to reside with Patterson, and remained there until he arrived at the age of fourteen years, which was in the year 1840. The'plaintiff’s lessor was in Ohio but once during the time he resided with said Patterson, and but for a single day. In 1831, Polly Seeley intermarried' with Hiram Niles, in the county of Ashtabula, with whom she resided in said county until after the April term of the court of Common Pleas of said county, 1835, at which term of said court Hiram Niles was appointed guardian to the said pla.intiff’s lessor, until he should arrive at the age of fourteen years. A bond was ordered in the sum of §1400, and two sureties were accepted by the *court. At the [197 November term of said court, following, Hiram Niles, as guardian of the lessor of the plaintiff, filed his petition in said court, setting forth, that said lessor was seized in fee of the land in controversy, and, for the reasons therein mentioned, prayed said court to be empowered to sell said land. At the June term of said court, 1836, the petition was granted, and orders soon after issued for the appraisal and sale of the premises. The appraisal was made; the sale followed, the defendant being the purchaser; a report of the proceedings was returned to the court of Common Pleas of Ashtabula county ; the same were examined and confirmed, and a deed duly executed to the purchaser.
    If, upon the above state of facts, the court should be of opinion that the law of the ease is with the plaintiff, then judgment is to be rendered for him ; but if the law of the case be with the defendant, then the verdict is to be set aside, and judgment rendered for the defendant.
    R. Hitchcock and E. T. Wilder, for plaintiff, made the following points:
    First: The proof offered by defendant to show that Niles was guardian of the minor is insufficient, it not being shown that the bond required by law was given, or that letters of guardianship issued. Swan’s Stat. 430.
    Second: Niles was not, in fact, guardian, because Maxsom, at the time of the appointment, was not a minor within the county of Ashtabula, and the court had no jurisdiction to make the appointment. Swan’s Stat. 430, sec. 1. Ludlow’s heirs v. McBride, 3 Ohio, 240 ; Griffith v. Frazier, 8 Oranch, 9 ; Holyoke v. Haskins and wife, 5 Pick. 19 ; Borden v. Fitch, 15 Johns. 121,123 ; Latham v. Edgarton, 9 Cowen, 227 ; Smith v. Rice, 11 Mass. 507 ; Trustees of Bloomfield v. Trustees of Chagrin, 5 Ohio, 315; Putnam v. Johnson and others, 10 Mass. 501; Lessee of Perry v. Brainard, 11 Ohio, 442.
    *Third : The minor lived out of the state ; the lands sold were [198 situate in Geauga county. Of course the court of Common Pleas in Ashtabula county had no jurisdiction to order the sale, and the sale is void. Swan’s Stat. 431 ; Ludlow’s heirs v. McBride, 3 Ohio, 240; Avery v. Pugh, 9 Ohio, 67; Holyoke v. Haskins and wife, 5 Pick. 19 ; Griffith v. Frazier, 8 Cranch, 9.
    Stephen Matthews, for defendant.
    
      The questions in this ease are—
    First: Can a guardian of a minor, in Ashtabula county, by order of the court there, sell the land of the minor in an adjoining county?
    Common Pleas may appoint a guardian, and authorize him to sell any or all of the real' estate of his ward, no matter where it lies in the state. Swan’s Stat, 430.
    Guardians to minors, who live out of the state, must apply, to sell land, in the county where the land is situate. Swan’s Stat. 431.
    I deem that the Legislature intended to provide, by section 9, for cases where the parents of minors died, residing in another state, where the legal residence of the minor is, and where he there got a guardian appointed out of this state, who, to sell land owned by the ward, in this state, must apply where the land lies, or in one county where it lies.
    Second : "Was not <T. R. Maxsom a resident of Ashtabula county, April 14, 1835, he being born in Mentor, where his father died, and followed the residence of his mother to Ashtabula county — she having resided there from 1829 to 1835, six years, and Maxsom then being nine years old— though be lived with Patterson from April, 1830, by consent of his mother, in Springfield, Pennsylvania, about nine miles from the Ohio line.
    On a question about the distribution of property, according to the law of England, or of Guernsey, the court decide, “ that after the 109] death of the father, children remaining under the *care of the mother, follow the domicil she may acquire, and her domicil is that of her children, until they are of age to acquire a domicil of their own.” 8 Merivale, 67, 79.
    And Lord Alvanly says : A minor can not, by his own acts, acquire a residence. 5 Vesey, 787.
    In the above case, Sir S. Romilly and Swanston have collected the authorities on the subject, and show the universality of the rule.
    So in 3 Ohio, 101; 5 Ohio, 316 ; 17 Johns. 91; 20 Johns. 285, the principle is similar.
    A citizen may have his home in one town, and his legal settlement in another. 10 Mass. 501, 502.
    The agreement between the mother of John, and Patterson, shows that she let Patterson have the boy till he was 14 years old, in consideration of certain valuable services which he was to render; and she expressly agreed, during that time, not to take him away, or suffer any other person, if she could prevent it.
    
      It is the same as though she had hired him out for a shorter period, or sent him to a school out of the state. The power of taking him away, or compelling him to return, after the expiration of the contract, she retained ; which, is inconsistent with a legal residence — that the individual possessing it can not be deprived of.
    In 20 Johns. 283, 285 — The pauper had a written contract from the father, “ giving him his time and services ; the right to go where he pleased; and relinquishing all paternal control.” But the court said he had a derivative settlement identified with the father’s; that the contract was absurd ; that the law determines the relation between the father and his infant children, which is not in their power to change.
    By the civil law, minors are under the guardian the same as under a parent. 5 Pick. 25, note one.
    But suppose, and the presumption results from the proceedings in this case, that the court in 'Ashtabula were informed that the mother, who resided in Ashtabula, had let her son to labor for Patterson, in Pennsylvania, for the time mentioned *in the contract, no objec- [200 tion to jurisdiction could arise, for the infant’s settlement is identified with the mother’s, the father being dead.
    Third: Can the order of the court of Common Pleas, to sell the land, be questioned, collaterally ; and is not that order, and the proceedings under it, final and conclusive ?
    The court of Common Pleas has jurisdiction of all probate and testamentary matters, the appointment of guardians, etc. Constitution of Ohio, art. 3, sec. 5.
    On good cause shown, they may authorize a guardian to sell all or any part of ward’s property, real or personal. Swan’s Stat. 430.
    Here, general jurisdiction of the subject matter is given; and an order of sale presumes the minutia of the proceedings correct, so far as respects an innocent purchaser. And if any one is injured, his redress is upon the guardian and his sureties — which the law makes ample — and not upon the purchaser in good faith.
    The decisions of Ohio are collected, in Swan’s Stat. 368, note (a).
    
    The proceedings of a court of Probate, in the sale of lands, are strictly in rem, and not in personam. If it has jurisdiction of the subject matter, its acts are binding against all the world. 9 Ohio, 18,117.
    So far as the interests of purchasers are concerned, the order for the sale of decedent’s estate, is of equal validity with a judgment. If the court have jurisdiction of the subject matter, the purchaser need not look behind the order of sale. 5 Ohio, 494.
    
      An order of sale is final and conclusive upon all parties concerned, until set aside, reversed, or annulled. It can not be questioned collaterally. It will protect a purchaser, although erroneously and unadvisedly made. 3 Ohio, 553.
    Same as purchasers at a sheriff’s sale. 9 Ohio, 19.
    Finally: Do the facts in the ease allow the question of jurisdiction to come up ? And if so, have not the Common Pleas of Ashtabula 201] county jurisdiction of the subject matter — of probate ^affairs? And if so, their order protects the defendant — a bona fide purchaser under it; and the ward has ample redress against his guardian, who has now land in Monroe, to respond the amount of the land, and four times the amount in Indiana. And, furthermore, the bail, to double the amount of the land, are secured by a mortgage to $1,500, in Monroe, Ashtabula county.
    Peter Hitchcock, on the same side.
    Wherever the court authorize a guardian to sell the real estate of his ward, and it is accordingly sold, the sale will be valid, notwithstanding there may be informality or irregularity in the proceedings. Upon this principle it was held that the purchaser’s title will not be defeated by an irregularity in the appraisement, or by the fact that notice of sale was not given as the law directs. 9 Ohio, 19. And it is for the public interest that it should be so. So long as real property is subjected to sale by executors, administrators, and guardians, public policy requires that, so far as it can be done, sales made by them should be sustained, otherwise purchasers will be few, and competition, in a great measure, destroyed.
    Besides, this liberality in sustaining such sales has a tendency to prevent a multiplicity of litigation. Governed by considerations like these, this court have hitherto applied the same rules to sales of this description as to sales on execution; and have attached the same solemnity to an order of sale as to a judgment at law. As upon sale on execution, it is only necessary for the purchaser to look to the “judgment, the levy, and the deed,” as was held by the Supreme Court of the United States, (4 Wheat. 506 ;) so, in sales by administrators and guardians, it is only necessary to look to the order of sale and to the deed.
    If, however, the court have no jurisdiction over the subject matter, its order of sale will be void, and, of course, the purchaser under such order would acquire no title.
    
      *In the case of Thompson v. Tolmie, 2 Pet. 157, proceedings [202 of this character are considered as judicial proceedings, and the rule is recognized, that they can not be impeached, collaterally, any more than a judgment at law.
    In the case before the court, however, there is no irregularity in the proceedings. The record shows that every step required by the statute Was taken. It shows, even, that the statute was more than complied with; for, after sale, return was made to the court, as in case of sheriff’s sale, and the sale was confirmed, and a deed ordered, which was not necessary. 9 Ohio, 19.
    Three objections are made by the plaintiff’s counsel to the title of the defendant under these procéedings, all of which will be considered, although not in the order presented.
    The first objection is, that the proof offered by the defendant, to show that Niles was guardian of the minor, is insufficient, it not being shown that the bond required by law was given, or that letters of guardianship ever issued.
    The evidence offered, of the authority of Niles to act as guardian, is a copy from the records of the Court of Common Pleas of Ashtabula county, showing his appointment, and, also, a copy of further proceedings in said court, showing that he was, by the court, recog-nized as guardian. What further proof could be required from a purchaser under a guardian’s sale I can not conceive.
    We are, however, not without authority upon this point. This court say, in the case of Pillsbury’s Lessee v. Dugan’s Administrator, 9 Ohio, 117, “ the power of an attorney in fact should be shown by proof; but where a court of general jurisdiction is required to exercise its power upon a state of facts to be proved before it, the requisite proof is presumed to have been made, and the* existence of the 'fact can not, afterwards, be collaterally questioned.” If it will be presumed that the power of an attorney in fact was proved, much more will it be presumed that the legal qualifications of a guardian are proven in a case like the present, especially where the sale is indorsed in the same court where the guardian was appointed.
    *The next objection is, that the court of Common Pleas had [203 no jurisdiction to order the sale of land situate in G-eauga county.
    That the courts of Common Pleas in this state are courts of general jurisdiction in probate and testamentary matters, and in the appointment of guardians, I suppose, will not be controverted, inasmuch as the constitution expressly confers it upon them. Their jurisdiction, however, is limited to the county, unless otherwise provided by law. It must be exercised in the county. 9 Ohio, 67.
    It will be necessary, then, to inquire whether a court of Common Pleas of one county can authorize a guardian to sell the land of his ward situate in another county; because, if the court do not possess this power, there is an end to this case. The court have no jurisdiction over the subject matter, and their action is void. Such was the opinion of this court in the ease of Ludlow’s heirs v. McBride, 3 Ohio, 240, and, so far as my knowledge extends, the doctrine settled in that case has been adhered to.
    What then is the law upon this subject? By the first section of the act for the appointment of guardians, (Swan’s Stat. 430,) the court of Common Pleas, appointing a guardian, are empowered, on good cause shown, to authorize such guardian to sell all, or any part, of the property, real or personal, of his ward ; and the third section requires that the guardian shall be governed, in making such sales, by the same regulations as are required of administrators. The law in force at the time of the passage of this act, regulating the duties of administrators, etc., and here referred to, is the act of January 25th, 1816, Chase, 929.
    In the case of Avery v. Pugh, 9 Ohio, 67, this court gave a construction to that statute, and held, that, under its provisions, the court granting letters had the same power to direct the sale of real property of the decedent, lying in any other part of the state, as in the county where the letters were granted.
    Besides, unless the court of Common Pleas, appointing a guardian, 204] may confer this power, it follows, that the lands of a *ward, residing in this state, can not be sold by an order of court, unless situate in the county where the appointment is made. For it will be seen that the power is not conferred on any other court,
    From all these considerations, it seems to me that the court will come to the conclusion that the court of Common Pleas, appointing a guardian, have jurisdiction to order the sale of the real estate of the ward of such guardian, wherever it may be situated within the state.
    One other objection to the title of the defendant is, that the court of Common Pleas of Ashtabula county had not power to appoint Niles guardian to the lessor of the plaintiff; that his appointment is, therefore, void, and that the proceedings of the court ordering the sale of the property is also void, and that the sale and deed are void. The reason upon which this proposition is based, is, that at the time of the appointment of the guardian, Maxsom, the ward, was not within the county of Ashtabula.
    To this objection I reply, in the first place, that it is one which the plaintiff can not raise in this case, because it is an attempt to impeach,collaterally, the proceedings of a judicial tribunal having competent and general jurisdiction of the. subject matter upon which it acted ; and. in the second place, if the objection could be raised, the facts show that Maxsom was, in contemplation of law, so far within the county of Ashtabula that the court of Common Pleas might with propriety appoint for him a guardian. Ludlow’s heirs v. McBride, 3 Ohio, 240 ; St. Clair v. Morris, 9 Ohio, 15.
    I maintain this to be the rule of law as applicable to cases of this description. If the record of' the proceedings, which result in the sale of property, show that the court had jurisdiction over the subject matter, that it exercised that jurisdiction, and either rendered a judgment, or made an order of sale, as the ease may be, you can not collaterally impeach that record. No matter how erroneous, no matter how irregular, it shall stand good until reversed. Every thing which it was necessary to have proved, in order to bring the court to the *final conclusion at which it arrived, shall be presumed to [205 have been proven. Nor can you be permitted to prove facts, aliunde the record, to show the court had not jurisdiction. This would, in fact, be to contradict the record. The court may have erred as to its jurisdiction in the particular ease, but if it had general jurisdiction of the subject matter, this error can not, and ought not, to affect a purchaser. Pillsbury and Sargeant v. Dugan’s Administrator, 9 Ohio, 117; Thompson v. Tolmie, 2 Peter, 157 ; McPherson v. Cunliffe and others, 11 Serg. and Rawle, 422.
    Should I be thought, by the court, to be wrong, in my notions upon this point in the case, then the question remains to be considered, whether the court of Common Pleas committed an error in the appointment of Niles as guardian.
    The provision of the statute is, “ that the court of Common Pleas shall have power, whenever they consider it necessary, to appoint a guardian or guardians to all minors within the county.” Counsel for the plaintiff seem to supppose, that, in order to justify the court of Common Pleas in making the appointment, the minor must have a locality in the county — must be within its territorial limits at the moment of the appointment. This, as it seems to me, is too narrow a construction. In whatever county a minor may have his home, the court of Common Pleas of that county may appoint for him a guardian. The domicil, or house of the father, is the home of all his legitimate children during their infancy ; and if he change his domicil, the change operates upon his children. They, as well as he, acquire a new home. And should he bind out one of those children for a limited time, still the child would have its home with its father. In other words, in contemplation of law, the home of the father would be the home of the child. In ease of the death of the father, the children would be domiciled where he died, provided, that, in his lifetime, that was the place of his domicil. And so, too, if he left a wife, the mother of his children, the place of his death, under like circumstances, would be her domicil. But if, after his death, she _ should 206] change her place of residence, and take her children *with her, her home would be theirs. They might not obtain a legal settlement in the place of this new home ; for, where the father was last legally settled, they would be legally settled, and during their infancy, could not acquire, in any other place, a legal settlement; but, still, their home would be with their mother. As she resided within the county at the time the appointment was made, it must be considered valid.
   Wood, Judge.

The question arising upon the state of facts in this case, is, who has the legal title to the land in question, as between these parties ? If the title is not in the defendant, by the conveyance of the guardian, under the proceeding and the authority of the court of Common- Pleas of Ashtabula county, the plaintiff is entitled to judgment; for the defendant relies alone on this conveyance.

The plaintiff’s counsel contend that the proof, to show Niles was guardian, is insufficient, because it does not appear the bond required .by law was given, or that letters of guardianship were ever issued.

The statute provides as follows : “ Which said guardian or guardians shall, before entering on the discharge of the duties of his or their appointment, in every case, give bond to the state of Ohio in such sum, and with such security, as shall be approved of by the court, conditioned,” etc.; which bond shall be filed with the clerk, etc. Swan’s Stat. 430, see. 1. The journal entry shows that a bond was ordered in the sum of $1,400; that the sureties were named and approved ; and that all the subsequent proceedings- of the guardian in the final disposition and sale of the land to the defendant were ratified and confirmed by the court. The law does not require the bond to be carried into the record. Can it be supposed that the court, where it ratified the sale, did not know whether the bond was executed or not ? Can it be supposed that the court would have empowered the guardian to sell, and invest himself with the ward’s money, until the bond was filed ? To draw such conclusion, would be to say the court of Common Pleas did not know, or did not discharge its duty. Such an inference *would be unwarranted and unjust, and does not exist in eontem- [201 plation of law, until clearly shown.

If A authorize B to do an act, B’s authority must be proved ; but when a court of general jurisdiction is required to exercise its powers upon a given state of facts within that jurisdiction, to be proven before it, from the action of the court, the requisite proof is presumed to have been given, and the existence of the facts can not afterwards be collaterally questioned. Pillsbury and Sargeant v. Dugan’s Administrator, 9 Ohio, 117. The letters of guardianship., if the statute required them to be issued, might be viewed in the same light. The statute, however, imposes no such requisition. The guardian derives his authority from his appointment, which is of record, and the appointment and the bond qualify him to enter on the discharge of his duties.

It is also said that Files was not, in fact, guardian, because the plaintiff’s lessor was not, at the time of the appointment, a minor, within the county of Ashtabula; and that the court of Common Pleas had, therefore, no jurisdiction to make the appointment. This is, perhaps, the most difficult question, and the most important in the case ; and if the fact be as supposed, the proceedings of the court of Common Pleas, and of the guardian under them are a nullity, and the defend'ant, consequently, has no title to the land in question. Every court, that its proceedings may be of any validity, must have jurisdiction over the subject matter ; and to have jurisdiction over the subject matter, in this case, the court of Common Pleas must, also, have acquired jurisdiction over the person of the minor for whom the guardian was appointed, at the time when the appointment was made, by his being within the county of Ashtabula. And if the plaintiff’s lessor was not so within the county, the court had no jurisdiction ; and the fact may be shown, and the proceedings impeached, in this collateral way. Ludlow’s heirs v. McBride, 3 Ohio, 240 ; Holyoke v. Haskins and wife, 5 Pick. 19; Borden v. Fitch, 15 Johns. 121, 123 ; Smith v. Rice, 11 Mass. 507 ; Perry v. Brainard, 11 Ohio, 442 ; Hall and others v. Williams and *others, 6 Pick. 232 ; Latham v. [208 Edgarton, 9 Cowen, 227 ; Snyder v. Snyder, 6 Binney, 483.

The statute enacts that the court of Common Pleas shall have power, whenever they consider it necessary, to appoint a guardian, or guardians, to all minors, within their county, etc. Swan’s Stat. 430, sec. 1. It is, therefore, essential, at the time of the appointment, that the minor should be within the county, to confer jurisdiction. If the record found the fact, it could not be disproved in a collateral proceeding ; but, as it does not, it is open to inquiry.

Was the minor, then,within the county at the time of the appointment.

We suppose it to be law, that the legal settlement of the husband draws to it the legal settlement of the wife. Peter Seeley had his place of legal settlement in Mentor, in Geauga county, in 1830, when his wife, the mother, taking with her the plaintiff’s lessor, left him, and went to the county of Ashtabula. She could acquire no legal settlement there, neither by her marriage with her adulterer, nor by her actual residence; because Peter Seeley, her lawful husband is still living in Mentor, and his place of legal settlement is consequently hers. She did, however, actually reside in Ashtabula county, for several years, and when this appointment of guardian was made. Did not her actual residence there, draw to it the constructive residence of the plaintiff’s lessor ? We are of the opinion that it did. It is true, she had, by her covenant, bound him to Patterson, where his actual residence was. That covenant, however, was of no validity. It was the co venant of a feme covert, not sanctioned by the husband, and in which he had not joined. The father is the natural guardian of his minor children. On his death, the mother is, by nature, guardian of those of tender years, and entitled to their custody and control. If she marry, unless the children reside at home, the stepfather, as distinct from the mother, has no authority over them. It seems, then, to us, to follow that, as her covenant with Patterson was of no obligation, the mother of the plaintiff’s lessor, he being of tender years, had 209] the right, at any ^moment, to call him to her. Her actual, was his constructive residence; and he was, therefore, when the guardian was appointed, constructively, with his mother, in the county of Ashtabula. It will hardly be contended that an actual residence is necessary to give the court jurisdiction of the appointment. Such appointment would scarcely be questioned, when the actual residence of the minor was in the county, but at the moment of the appointment, he was over the county line, for a temporary purpose, merely. He would be considered as, constructively, within the county, and the appointment would be valid.

It is said, by the plaintiff’s counsel, lastly, that the court of Common Pleas of Ashtabula county had no jurisdiction over the subject matter, so as to order the lands of the minor to be sold, which were situated in the county of Geauga.

We entertain a different opinion. If this power do not exist, it is very certain that a minor’s lands, out of the county in which he resides, could, under no circumstances, be put to sale. The guardian must be appointed in the county where he resides ; and the statute provides that the court, appointing the guardian, may empower him to sell the land, etc, If he have no power to sell land in another county, the Common Pleas had no jurisdiction over the subject matter, and all the proceedings are void. We should, however, hesitate to adopt that conclusion.

The statute does not, in ter-ms, certainly, confine the sale to lands lying in the county ; but provides that the guardian; in making sales, shall be governed by the same regulations as are required of administrators, in the sale of real property ; and, in the case of the lessee of Avery v. Pugh, 9 Ohio, 67, it was decided by this court, that the Common Pleas of any county might direct an administrator to sell the real estate of the decedent, in any other county.

We have, therefore, come to the conclusion, that the proceedings of the guardian, can, and ought to be sustained, and that judgment should be given for the defendant.

Judgment for defendant.  