THE BANK OF HAMILTON, PLAINTIFF IN ERROR vs. THE LESSEE OF AMBROSE DUDLEY, JUN., Defendant.

Proceedings for the sale of the real estate of an intestate, for the payment of debts, were commenced before the repeal of the act of the legislature of Ohio, entitled "A law for the settlement of intestates' estates." The administrators, notwithstanding the repeal, went on to sell the land, and appropriate the proceeds to the discharge of the debts of the intestate. Held, that the sale was void.

The power of the inferior court of a state to make an order at one term as of another, is of a character so peculiarly local, a proceeding so necessarily dependent on the judgment of the revising tribunal, that the judgment of the same is considered authority, and this Court is disposed to conform to it. [522] That a court of record, whose proceedings are to be proved by the record alone, should, at a subsequent term, determine that an order was made at a previous term, of which no trace could be found on its records, and that too, after the repeal of the law which gave authority to make such an order; is a proceeding of so much delicacy and danger, which is liable to so much abuse, that some of the Court question the existence of the power. [522] Where administrators, acting under the provisions of an act of assembly of the state

of Ohio, were ordered by the court, vested by the law with the power to grant such order, to sell real estate, and before the sale was made the law was repealed, the powers of the administrators to sell, terminated with the repeal of the law. [523]

The lands of an intestate descend not to the administrator, but to the heir; they vest in him, liable to the debts of his ancestor, and subject to be sold for those debts. The administrator has no estate in the land, but a power to sell under the authority of the court of common pleas. This is not an independent power, to be exercised at discretion, when the exigency in his opinion may require it; but it is conferred by the court, in a state of things prescribed by the law. The order of the court is a pre-requisite, indispensable to the very existence of the power; and if the law which authorises the court to make the order, be repealed, the power to sell can never come into existence. The repeal of such a law divests no vested estate, but it is the exercise of a legislative power, which every legislature possesses. The mode of subjecting the property of a debtor to the demands of a creditor, must always depend on the wisdom of the legislature. [523]

The judicial department of every government is the rightful expositor of its laws, and emphatically of its supreme law. If in a case depending before any court a legislative act shall conflict with the constitution, it is admitted that the court must exercise its judgment on both, and that the constitution must control the act. The court must determine whether a repugnancy does, or does not exist, and in making this determination must construe both instruments. That its construction of the one is authority, while its construction of the other is to be disregarded, is a proposition for which this Court can perceive no rea[524]

[Bank of Hamilton vs. Dudley's lessee.]

This Court can perceive no sufficient grounds for declaring that the legislature of Ohio might not repeal the law of that state by which the court of common pleas was authorised to direct, in a summary way, the sale of the lands of an intestate. "Jurisdiction of all probate and testamentary matters" may be completely exercised without possessing the power to order the sale of the lands of an intestate. Such jurisdiction does not appear to be identical with that power, or to comprehend it. [524]

The occupant claimant law of Ohio, which declares that an occupying claimant shall not be turned out of possession, until he shall be paid for lasting and valuable improvements made by him, and directs the court in a suit at law, to appoint commissioners to value the same; is repugnant to the seventh amendment of the constitution of the United states, which declares that "in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." The compensation for improvements is a suit at common law, and must be submitted to a jury. [525] Admitting that the legislature of Ohio can give an occupant claimant a right to the value of his improvements, and authorise him to retain possession of the land he has improved, until he shall have received that value; and assuming that they may annex conditions to the change of possession, which, so far as they are constitutional, must be respected in all courts; still, the legislature cannot change radically the mode of proceeding prescribed for the courts of the United States, or direct those courts in a trial at common law, to appoint commissioners for the decision of questions which a court of common law must submit to a jury. [526]

The inability of the courts of the United States to proceed in suits at common law, in the mode prescribed by the occupant law of Ohio, does not deprive the occupant of the benefit intended him. The modes of proceeding which belong to courts of chancery, are adapted to the execution of the law; and to the equity side of the court he may apply for relief. Sitting in chancery it can appoint commissioners to estimate improvements, as well as rents and profits, and can enjoin the execution of the judgment at law, until its decree shall be complied with. If any part of the act be unconstitutional, the provisions of that part may be disregarded; while full effect will be given to such as are not repugnant to the constitution of the state, or the ordinance of 1787. The question whether any of its provisions be of this description, will properly arise in the suit brought to carry them into effect. [526]

THIS is a writ of error to a judgment rendered in the court of the United States for the seventh circuit and district of Ohio; in an ejectment brought in that court by the defendants in error, against the present plaintiffs for part of lot No. 103, in the city of Cincinnati.

The plaintiff is heir at law of Israel Ludlow, who died seised of the premises in the declaration mentioned. The defendant claimed under a sale and deed made by the administrator of the said Israel Ludlow, in pursuance of certain orders of the court of common pleas for the county of Hamilton.

[Bank of Hamilton vs. Dudley's lessee.]

The case depends on the validity of this deed.

In August 1788, the territorial government of Ohio enacted, "a law establishing a court of probate." The first section enacts that "there shall be appointed one judge of probate in each county whose duty it shall be to take the probate of last wills and testaments, and to grant letters testamentary and letters of administration, and to do and perform every matter and thing that doth or by law may appertain to the probate office, excepting the rendering definitive sentence and final decrees.

In 1795, an orphans' court was established, and it was enacted that where persons die intestate and leave lawful issue, "but not a sufficient personal estate to pay their just debts and maintain their children, it shall be lawful for the administrator or administrators of such deceased person to sell and convey such part or parts of the said lands or tenements for defraying their just debts, maintenance of their children, &c. as the orphans' court of the county where such estate lies, shall think fit to allow, order and direct from time to time."

In the year 1802, Ohio became an independent state. The constitution, in the article which respects the judicial department, declares 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 April 1803, the judicial courts were organized; and the court of common pleas, after a general grant of original jurisdiction, was empowered to examine and take the proof of wills, to grant administration on intestate estates, and to hear and determine all causes, suits, and controversies of a probate and testamentary nature.

In June 1805, the territorial ordinance of 1795 was repealed.

At the trial of the ejectment in the circuit court, after the plaintiff had closed his evidence, the defendants offered in evidence a deed from the administrators of Israel Ludlow deceased, to Andrew Dunseth, for the premises in the declaration mentioned. "They also offered in evidence duly

[Bank of Hamilton vs. Dudley's lessee.]

certified entries and copies of orders from the records of the court of common pleas within and for the county of Hamilton state of Ohio, of which the following are true copies, viz. '2d of February 1804: Letters of administration granted unto Charlotte C. Ludlow, John Ludlow, James Findlay and James Pierson, on the estate of Israel Ludlow deceased; and their bond with William Ludlow and James Smith as securities for their faithful administration."" At May term in the year 1804, date 8th of May 1804, the following order was made, viz. "The administrators of the estate of Israel Ludlow deceased exhibit an account current and pray the court to issue an order for the sale of real property to defray the debts due from the estate, &c. John Ludlow and James Findlay sworn in court. The Court order so much of the real property to be sold as will meet the said demand, except the farm and improved land near Cincinnati together with the house and lots in Cincinnati." At the August term of the said court in the year 1805, a supplemental order was made of which the following was a copy, viz. "The administrators of I. Ludlow deceased, on application to the court to extend the order for the sale of property to discharge the debts arising from the estate whereupon the court allow the administrators to sell the house and lots in the town of Cincinnati and any other property, except the mansion house and farm in the country so that the sale do not amount to more than ten thousand dollars. This entry considered as of May term 1805."

It was in evidence that the sale was made agreeably to the provisions of the law adopted from the Pennsylvania code by the governor and judges of the north western territory on the 16th of June 1795, entitled "a law for the settlement of intestate estates;" that the deed was duly executed, acknowledged and proved.

The plaintiff by his counsel moved to overrule the testimony offered by the defendants' counsel, because the law aforesaid, entitled "a law for the settlement of intestate estates," was repealed before the order was made authorizing said sale, and that at the time of making of the said order there was no law of the state of Ohio authorizing the court of common pleas to

[Bank of Hamilton vs. Dudley's lessee.]

order the sale of real estate for the payment of debts, &c. of intestates. The court sustained the motion and overruled the defendants' evidence. The defendants excepted to this opinion.

The jury found a verdict for the plaintiff; after which the counsel for the defendants moved the court for the appointment of commissioners, under the occupying claimant law of Ohio, to value improvements. This motion was overruled, and judgment was rendered for the plaintiffs.

The case was argued for the plaintiff in error by Mr Benham and Mr Baldwin; and by Mr Garrard for the defendant.

For the plaintiff it was said, that the defendant in error claims by descent, as heir at law of Israel Ludlow, deceased, who died seised of the premises in question; and the plaintiff claims by purchase from his administrator.

The case is one of deep interest to the present litigants, as well as to all those who hold real estate in Ohio under deeds from administrators, and this class is numerous. Its decision depends upon old statutes which it is proposed to collate, in such a manner as to aid the judgment of the court in expounding them in reference to this case.

These statutes will be found between the periods of 1788 and 1805, and to relate, 1. To the establishment of probate and testamentary courts under the territorial government. 2. Their powers and jurisdiction. 3. The abolition of these courts upon passing from a territorial into a state government. And 4. The organization of new courts of similar jurisdiction, and the modification and repeal of laws relating to testamentary matters.

The facts of the case in reference to which the Court must expound these laws are as follows: Ludlow died the 21st of January 1804. On the 2d of February of that year, administration was granted upon his estate to John Ludlow and others, who gave bond with sureties, as the law required, for the faithful execution of their trust. On the 10th of May 1804, the following proceedings were had in the court of common pleas of Hamilton county, viz. "The administrators of J. Ludlow deceased exhibit an account current, and