Lessee of Merritt v. Horne

5 Ohio St. 307

• Court: Ohio Supreme Court
• Decided: December 15, 1855
• Status: Published

Opinion

Ranney, C. J.

In deciding this case, I shall do no more than state the conclusions to which the court have arrived, upon the several questions presented. It has been fully and ably argued by counsel, and the ground upon which these conclusions are based, and their application to the facts, will be made apparent' by the publication of a synopsis of those arguments.

We have again carefully examined the doctrine announced in Borland's Lessee v. Marshal, 2 Ohio St. Rep. 308, that an actual seizin of the land of the wife during coverture, is not necessary to entitle the husband to curtesy in this State ; and are fully satisfied of its correctness.

By the partition act of 1820, (2 Chase’s Stat. 1162,) the guardian of an infant was authorized to appear for his ward and to consent that partition be made ; and it is expressly declared that “ the same shall be deemed as valid and effectual in law to every intent and purpose, as if the same had been done by such minor after his arrival at full age.”

In this, as in all other judicial proceedings of a court of record of competent jurisdiction, the record imports absolute verity; and the finding of such a court, that the person assuming to act as guardian was in fact such, is sufficient prima facie to show that the court had obtained jurisdiction over the ward.

If upon the report of an inquest that the property will not divide, and the consequent sale of the land under such a proceeding, the husband of the infant, acting as her guardian, with a full knowledge of the facts, acknowledges such person to have been guardian, and receives from him as such the consideration money for the property, he will be estopped to prove that such person was not duly appointed, and cannot, after the death of the wife, controvert the jurisdiction of the court over the infant.

There is now no principle better settled, or resting upon firmer grounds of justice and public policy, than that which precludes a party who has induced another to part with his money or property, and has taken the fruits of a judicial proceeding, from after-wards questioning its regularity, or, by evidence aliunde, impairing its effect. Lessee of Buckingham v. Hanna, 2 Ohio State Rep. 559 ; Tabler v. Wiseman, Ib. 216. Although this doctrine debars the truth in the particular case, yet, as said by the Supreme Court of the United States in Van Rensselaer v. Kearney, 11 How. 326, “ it imposes silence on the party, only when, in conscience and honesty, he should not be allowed to speak.” And we are of the opinion that it is equally effectual at law and in chancery.

By the act to which reference has been made, in case of a sale of the property upon proceedings in partition, a deed of conveyance from the sheriff, duly executed, was made necessary to a complete execution of tbe power, and indispensable to invest the purchaser with the legal title. The deed!,, required, must have been signed and sealed by the sheriff in the'.presence of witnesses, and such signing and sealing acknowledged by him in open court. An instrument of writing duly acknowledged, but without being sealed by the sheriff, is insufficient; and the addition of a seal many years after, without another acknowledgment, will not make it available, in a court of law, to protect the purchaser in an action of ejectment brought by the infant, or one who has succeeded to her estate.

Judgment reversed, and cause remanded.