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BOSWELL'S LESSEE V. OTIS, 50 U. S. 336 (1850)

U.S. Supreme Court

Boswell's Lessee v. Otis, 50 U.S. 9 How. 336 336 (1850)

Boswell's Lessee v. Otis

50 U.S. (9 How.) 336


The Chancery Act of Ohio of 1824 confers on the court of common pleas general chancery powers. The twelfth section gives jurisdiction over the rights of absent defendants on the publication of notice

"in all cases properly cognizable in courts of equity where either the title to or boundaries of land may come in question or where a suit in chancery becomes necessary in order to obtain the rescission of a contract for the conveyance of land or to compel the specific execution of such contract."

A bill being filed to compel the specific execution of a contract relating to land where the defendants were out of the state, the court passed a money decree and ordered the sale of other lands than those mentioned in the bill.

This decree was void, and no title passed to the purchaser at the sale ordered by the decree.

The act did not authorize such an act of general jurisdiction. A special jurisdiction only was given in rem.

Jurisdiction is acquired in one of two modes -- first as against the person of the defendant by the service of process, or secondly by a procedure against the property of the defendant within the jurisdiction of the court. In the latter case, the defendant is not personally bound by the judgment beyond the property in question.

This was an ejectment brought by Boswell a citizen of Kentucky, against Rodolphus Dickinson and others, tenants in possession, to recover tract number seven in the United States reserve, of two miles square, at Lower Sandusky in the State of Ohio. Dickinson having died, his heirs and representatives were now parties.

Before relating the proceedings in the ejectment, it is proper to notice some other occurrences which were prior in time.

In May, 1825, Thomas L. Hawkins filed a bill in the Sandusky Common Pleas against Thomas E. Boswell William T. Barry, and William Whitimore. The bill stated that all these parties were engaged as partners in building a saw mill upon lot number nine; that they went on with the work until 1823; that he, Hawkins, was a creditor of the concern; that the other parties had obtained a title to two-thirds of the lot and refused to convey any part of it to the complainant. The bill then concludes thus:

"To the end, therefore, that said Boswell Barry, and Whitimore may, under their corporeal oaths, true answers make to all matters herein charged, and on the final hearing of this cause your honors will decree that said defendants convey one-fourth of the said land to which they have obtained

Page 50 U. S. 337

a legal title, and also to account to your orator for the money and time he has expended more than his share on said mill and the improvements of said land, and that notice be given defendants,"


It being made known that the defendants were nonresidents of the state, but resided in the States of Kentucky and Massachusetts, notice of the pendency of the suit was published in the Western statesman, a newspaper printed at Columbus, Ohio, for the term of nine weeks successively.

At May term, 1826, a decree was passed that the bill should be taken pro confesso, and a master was directed to take an account between the parties, who reported a balance due to Hawkins of $1,844.17.

In July, 1826, the court passed a final decree

"that the complainant do recover of the said defendants the said sum of eighteen hundred forty-four dollars and seventeen cents, and his costs by him in this behalf expended. It is further ordered, adjudged, and decreed, that this decree shall, from the time of its being pronounced, have the force, operation, and effect of a judgment at law, and shall be a lien upon all the town lots of the defendants within said county, and also all the other real estate of the said defendants within said County of Sandusky, as security for the satisfaction of said decree; and it is further ordered, adjudged, and decreed, that, if the above sum of eighteen hundred forty-four dollars and seventeen cents, and the costs to be taxed in this suit, be not paid within thirty days from the date of this decree, upon a praecipe's being filed with the clerk of this Court by the complainant or his solicitor, execution shall issue against the goods, chattels, lands, and tenements of the said defendants, which shall be taken in execution, and sold in like manner as though said execution issued on a judgment rendered in a court of law, and all further proceedings in this cause to be continued until the next term."

Under a pluries fi. fa., lot number seven was sold, and in May, 1832, the sheriff made a deed of it to Sardis Birchard.

We can now return to the ejectment.

In the trial of it, Boswell the plaintiff, produced a patent from the United States for the lot number seven, dated September 2, 1831, and also the following agreement of counsel.

"It is admitted as evidence in this case that the plaintiff's lessor, said Thomas E. Boswell now is and ever since the year A.D. 1818 has been, a resident of the City of Lexington, County of Fayette, and State of Kentucky; that from 1

Page 50 U. S. 338

May, A.D. 1825, up to 1 August, A.D. 1826, he was not within the State of Ohio, and that the premises in controversy in this case are of the value of ten thousand dollars."

"LANE, BUCKLAND & HAYS, Attorneys for Defendants"

"Lower Sandusky, Ohio, August 31, A.D. 1846"

The plaintiff there rested.

The defendants then offered in evidence a certified copy of the record of the proceedings of the Court of Common Pleas of Sandusky County, and also of the sheriff's deed, to the introduction of which as evidence in the case the plaintiff objected.

"And thereupon, by consent of parties, the jury do say that if, in the opinion of the court, the said record and sheriff's deed are by law admissible in evidence, then the said defendants are not guilty of the trespass and ejectment in the declaration mentioned; but if, in the opinion of the court, the said record and sheriff's deed are not admissible as evidence, then the jury say that the defendants are guilty of the trespass and ejectment in the declaration mentioned, and assess the plaintiff's damages at one cent, and thereupon, the arguments of counsel being heard and due deliberation had, the opinions of the judges were divided on the following questions, to-wit:"

"1. Whether or not the proceedings and decree of the said Court of Common Pleas of Sandusky County set forth in said record are coram non judice and void."

"2. Admitting said proceedings and decree to be valid so far as relates to the lands specifically described in the said bill in chancery, whether or not said proceedings and decree are coram non judice and void so far as relates to lot number seven in controversy in this case, and which is not described in said bill in chancery, or in other words whether said proceedings and decree are not in rem, and so void and without effect as to the other lands sold under said decree."

"And thereupon it is ordered that said questions be certified for decision to the next term of the Supreme Court of the United States according to the act of Congress in such case made and provided. "

Page 50 U. S. 346

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