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solely upon the recollection of two of its members, the defendant
was not prejudiced by its refusal to make the motion definite and
certain. The action of the court, resting as it did upon the
recollection of its members, must have been the same whether
the motion had been sustained or overruled.

The circuit court found that the journal entry, at the Feb-
ruary term, 1891, "fails to show that the defendant in error ap-
peared in person or by his attorney at the hearing of said cause,
and it further appearing to the court by the personal knowledge
of the court which heard said cause that said defendant in error
did personally and by his attorney appear in said cause, and was
present at the hearing of the same, it is therefore adjudged ^*
and ordered that the journal entry be, and the same is, hereby
corrected and amended,*' etc.

This finding of the court, as well as in the motion asking the
court to make the finding, it will be observed, does not show that
at the original hearing in 1891 the attention of the circuit court
was called to the question, or that it was then required to find the
manner by, or the method in, which jurisdiction over the person
of the defendant in error had been acquired. And if we may be-
lieve the sworn statements made by the defendant in error and his
counsel, the fact is that no such finding was then requested by
plaintiff in error or made by the circuit court.

If the defendant in error had been served with legal process,
if he had formally entered his appearance in the proceedings, or
if, in person or by counsel, he was present and participated in the
hearing, jurisdiction over his person would have been thereby

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728 CLxvBLAjffD Leadbb Print. Ca v. Grsbn. [Oiu<v

acquired. In order to establish juiiadictioii, the leooid should
disclose at least some one of such acts. This it could not truth-
foUy do, unless the court had first found that such action was
had. This action, though usually formal, is abeolutdj neces-
sary and must be made at the time the hearing is had. The fact
of jurisdiction over the person of the defendant, and conse-
quently the validity of a judgment for or against him, should not
depend, as it did in the case under consideration, for oyer three
years, upon the personal recollection of a judge or judges, unless
there exists some strong necessity therefor.

Bights established by the judgments of judicial tribunals are
generally r^arded as resting upon the firmest foundations, and
this mainly because of the confidence reposed in their inTiolalnl-
ity. ^^ The power to affect their operation or change their
import by nunc pro tunc orders should be exercised with cau-
tion and circumspection: Hyde t. Curling, 10 Mo. 363.

In some states the power is denied to the courts, unless their
action is supported by written memorandum: Hyde t. Curling,
10 Mo. 359; Limerick, Petitioners, 18 Me. 183; BeUdn t. Bhode8«
T6 Mo. 643.

This Yiew of the question was taken by this court in an early
ease. In Ludlow t. Johnston, 3 Ohio, 553, 578, 17 Am. Dec
609, Judge Hitchcock uses the following language in this con-
Bection: •*But to introduce parol testimony to prove the pro-
ceedings of a court of record, and then substitute this testimony
for the record itself, would be a novel proceeding. It would be
equally absurd as to sustain an action of debt upon bond, upon
proof that the defendant promised to make such an instrument,
.... although the fiict diould be admitted that the instrument
was never executed." In the cases since Ludlow v. Johnston,
S Ohio, 553, 17 Aul Dec. 609, was decided, wherein this court
has had occasion to consider questions concerning nunc pro tunc
entries, such entries have been supported to some extent by writ-
ten memorandum: Bothe v. Dayton etc. R. R. Co., 37 Ohio St
147: Moore v. Brown, 10 Ohio, 197; Markward v. Doriat 21
Ohio St 637; Mitchell v. Thompson, 40 Ohio St 110; Benedict
V. State, 44 Ohio St 679.

Notwithstanding the rule which requires that the power to
make nunc pro tunc entries should be used with circumspection,
this court has been liberal in sustaining such orders where the
power to make them exists: Dial v. Holter, 6 Ohio St 228.

*•• Whether a case misrht not arise in which this court would
Rcede from the doctrine, before alluded to, announced by Judge

Digitized by


March, 1895.] Cleveland Leader Pbint. Co. v. Grux. 729

Hitchcocky in Ludlow y. Johnston^ 3 Ohio, 553, 17 Am. Dec
609, by declaring the necessity of some written memorandum
to support a finding nunc pro tunc, we need not determine; nor
are we required to reaffirm the doctrine of that case, because we
rest the decision of this cause upon the ground that the circuit
court had no jurisdiction to make the order in question.

The office of a nunc pro tunc entry, of the class under con-
sideration, is to record some act of the court done at a former
term, which was not then carried into the record, but it should
not be employed to secure, at a subsequent term, a performance
by the court of some act which the applicant failed to have the
court do at the term in which a final judgment had been ren-
dered and entered. Doubtless a court retains jurisdiction of its
records, and may correct them so as to make them set forth
whatever act the court performed in a cause at a prior term; but,
iu the absence of some statutory provision, its jurisdiction of the
cause terminates with the term at which a final judgment is en-
tered. Were the rule otherwise, the stability of judgments would
be destroyed; they would be found, not alone in the records of
the court, but in those records and the memory of the judge com-

The authorities which support this view of the office of a nunc
pro tunc order, of the class under consideration, are numerous.
"After the close of the term, it is holden that the court can enter
no order nunc pro tunc, unless one was actually made, and
omitted to be entered*': Torbet v. Coffin, 6 Ohio, 33; Long v.
I^nsr, 85 K C. 417; Limerick, Petitioners, ^^ 18 Me. 183;
Nabers t. Meredith, 67 Ala. 333; Smith v. Hood, 25 Pa. St. 218;
64 Am. Dec. 692; Howell v. Morlan, 78 HI. 162-165; Perkins v.
Dunlavy, 61 Tex. 241; Whitwell v. Emory, 3 Mich. 84; 59 Am.
Dec. 220; Gibson v. Chouteau, 45 Mo. 171; 100 Am. Dec. 366.

We have seen that the order under consideration does not pur-
port to find that the court did some act at a former term which
was not recorded. Instead, it is an attempt to have the court,
at a term in 1894, find a fact which it might have found at a term
held three years before, if then required to consider it. No ju-
dicial action upon the question was then invoked, and when it
was afterwards invoked, the cause had passed into final judg-
mput and beyond the jurisdiction of the courts and its action was
without authority.

Petition in error dismissed.

Spear, J., not sitting.

Digitized by LnOOQ IC

780 Jelkb v. Goldsmith. [Ohio,

ie proper, when improper, and the effect thereof, are the eabjeeti of tfat
extended note to Minde ▼. Clark, 4 Am. 8t. Rep. 82&-834.

JUDGMENTS— AMENDMENT OF.— A court cannot alter, vaiy, or
annul ita final judgment after the close of the term at which it wai
rendered, except to correct clerical errors or omissions^ or when th«
judgment is Yoid on its face, either for want of jurisdiction oi the sab-
lect matter or of the parties: Carlisle y. Kiilebrew, 91 Ala. 361; 24 Am.
St. Rep. 916, and note.

Jeleb V. Goldsmith.

[tt Ohio Btats, 4m.]

lion to recover the assets of the estate wherever they may be found.

UTE, ARE IN PERSONAM only and do not execute themselves so u
to transfer personalty.

OUT ORDER OP COURT.— An executor or administrator, when un-
restrained by statute, has power to sell the personal assets of the es-
tate, including notes, accounts, bonds, and mortgagees, without to
order of court, and a purchaser who buys from him in good faitb,
for full value, without notice of any bad faith or fraudulent intention
on the part of the executor or administrator, although such intention
exists, acquires a good title and is not required to see to the applica*
tlon of the purchase money.

Action to compel the delivery of notes and mortgages. 0. A.
Kebler^ as the administrator of the estate of J. Bobb^ deceased,
sold certain of his land to pay his debts. One parcel belonging
to the estate was sold and conveyed to one Flanagan, who paid
one-third of the purchase money in cash, and made and delivered
to such administrator his two notes, secured by mortgage on the
land purchased, for the remainder of the purchase price, both
payable to such administrator. Long after the notes became
due, Flanagan was unable to pay them, and the administrator
indorsed, sold, and delivered them, together with the mortgage,
to Jelke, who paid to the administrator therefor the full amount
of the principal and interest. Kebler, as administrator, con-
verted the money to his own use and died without accounting
therefor to the estate. A. W. Goldsmith was afterwards ap-
pointed administrator de bonis non of the estate of Robb, and on
March 26, 1888, began this action against Jelke to compel
him to deliver up such notes and mortgage. All of the heirs and
creditors of the estate of Robb were pariiies to the action whereifl
the order for the sale of the land purchased by Flanagan was
made, and Jelke, at the time he purchased such notes and mort-
gage from the administrator^ paid full value thereior and had no

Digitized by


March, 1895.] Jelkb v. Goldsmith. 781

notice of any bad fidth or intended wrongful conTenfam of tlia
proceeds by the administrator^ nor waa the tranaaction of each a
natore as to charge him with anch notice. Jelke proaecuted a
writ of error from a Judgment against him.

Pazton, Warrington ft Bontet^ for the phiintifl in error.

HannoD, Colston, Goldsmith ft Hoadly, for the defendant ia


^ BUBEET, J. Plaintiff below, defendant in error here,
complains in his motion for a new ■*• trial, because the court
failed to state in its findings of fact that Charlea A. Kebler, ad-
ministrator, did not in any manner deliver or indorse the notes
in question to the two trustees, and further because the court
failed to state that said administrator had not accounted for the
proceeds of said notes.

The bill of exceptions contains all the testimony, which is
mostly documentary, and, taking the testimony together, there
is no conflict, and nothing to require any weighing of testimony.
In Tiew of all the testimony, the admissions in the pleadings,
and the facts so far as found by the court, it clearly appears that
Mr. Eebler held these notes as administrator until he sold them
ia the plaintiff in error in March, 1887, and that he failed to ac-
connt for the proceeds of the notes and mortgage. So that in the
disposition of the case these two facts will be regarded as estab-
Med, as claimed by the defendant in error.

As to the claim of the plaintiff in error, that an administrator
cannot maintain an action for the recovery of assets of the estate
which have illegally passed into the hands of third persons from
the former administrator, it is enough to say that the statutes
have been materially changed since the case of McCoy v. Qil-
more, 7 Ohio, 268, and that now an administrator de bonis non
has the right to maintain an action for the recovery of the assets
of the estate wherever the same may be found: Bev. Stats., sees.
6020, 6214; Curtis v. Lynch, 19 Ohio St. 392; Tracy v. Card, 2
Ohio St 431.

It is claimed by plaintiff in error that, by virtue of the decree
in the court of common pleas referred to in the findings of fact
in this case, *^* the title to the notes passed from tBe administra-
tor, Kebler, and became vested in the two trustees named in said
decree- It is further claimed by plaintiff in error that the sale
of the notes by the administrator to Mr. Jelke was valid, and
vested title in bim- Both of these claims may be false, but both

Digitized by


782 Jelke t;. Goldsmith. [Ohkv

cannot be true; because, if title Tested in the tnistees by virta^
of the decree, no title remained in the administrator to be by
him transmitted to Mr. Jelke.

No indorsement of the notes was made by the administrator
to the trustees, and no delivery was made to them, either actual
or constructiye. Mr. Kebler held the notes and mortgage imtil
March, 1887, and then indorsed the notes and assigned the mort-
gage, as administrator of the estate of James Bobb, and sold and
deUvered them to Mr. Jelke, thus showing that he treated the
notes and mortgage as being held by him in his capacity of ad-

The whole record is consistent with this construction put upon
the transaction by Mr. Kebler at the time of its occurrence, and
there is nothing against it, unless it be a strained construction
of the effect of the decree in the common pleas.

If it be true as found by the court, that on the eleventh day of
March, 1887, the administrator indorsed, sold, and delivered the
notes to Mr. Jelke, it must be also true that at that date the title
and possession of the notes still remained in him, as he could
not sell and deliver that which he had not. If he then had the
title and possession, the same could not have been transferred
to the trustees by virtue of the decree of February, 1885, unlesa
tliey had in the mean time been retransferred to the adminis-
trator by the trustees, which is not claimed, ^^ and of which
there is no evidence whatever in the record. The irresistible
conclusion is, that the title and possession remained in the ad-
ministrator until March 11, 1887.

That the title did so remain in the administrator appeara
from this further consideration. At common law a decree acta
in personam, and creates a right which may be enforced against
the person by attachment and sequestration, but the decree doe»
not execute itself. By statute in this state at an early day, it waa
provided the same as is now contained in section 5318 of the Re-
vised Statutes, which reads as follows: 'TV'hen the party against
whom a judgment for a conveyance, release, or acquittance i»
rendered does not comply therewith by the time appointed, such
judgment shall have the same operation and effect, and be a&
available, as if the conveyance, release, or acquittance had beei^
executed conformably to such judgment.'*

It is by virtue of this statute that the decree of a court of
equity is made, by its own vigor and operation, to transfer title
to real estate from one party to another. In the absence of such
statute, this court held in Shepherd v. CommissionerB of Bo8»

Digitized by


Maroh, 1895.] Jelkb v. Goldsmith. 783

<3ounty, 7 Ohio, 271, that a decree did not operate to transfer
title to real estate.

It will be noticed that this statute applies only to decrees as to
title to real estate, but decrees as to personalty are left as at com-
mon law, aided, however, by our remedial statutes, and section
5490 of the Revised Statutes, which provides as follows: *TVhen
the judgment is not for the recovery of money or real property,
at may be enforced by attachment, by the court which rendered
the same, upon motion *^® made, or by a rule of court upon the
•defendant; but in either case notice of the motion, or a service of
a copy of the rule, shall be made on the defendant a reasonable
time before the order of attachment is made."

Under this section, the most that can be claimed in this case is,
that the trustees could have compelled the administrator, by
Attachment, to deliver the notes and mortgage in question; but
until such delivery, the title to the notes' and mortgage remained
in the administrator.

That a decree in chancery, unaided by statute, is in personam
only, and does not execute itself so as to transfer personalty, is
also shown by the following citations: Mitchell v. Bunch, 2
Paige, 606; 22 Am. Dec. 6G9; Mead v. Merritt, 2 Paige, 402;
Oreat Falls Mfg. Co. v. Worster, 23 N. H. 462; Wood v. Warner,
16 N. J. Eq. 81; 2 Daniell's Chancery Practice, 1032; 1 Spence'a
Equitable Jurisdiction, 391; 1 Eq. Cas. Abr. 130.

Let us next examine the claim of plaintiff in error, that the sale
of the notes and mortgage by the administrator to Mr. Jelke is
valid and vested title in him.

The common law, as to powers of executors and administrators,
U in force in this state, except as modified by statute: O'Connor
V. State, 18 Ohio, 225; Tracy v. Card, 2 Ohio St. 431; Curtis
v. Lynch, 19 Ohio St. 392.

At common law an executor or administrator has full power
and authority to sell and dispose of all the assets of the estate,
including notes, accounts, bonds, mortgages, and leases, without
an order of court, when the sale is in good faith, and for purposes
of the estate; and in such case the purchaser is not required to
see to the proper **^* application of the purchase money. Even
thouerh the sale on part of the executor or administrator is
in bad faith, and with the intent and for the purpose of convert-
ing the proceeds of the sale to his own use, the purchaser will be
protected in his purchase in case he acts in good faith and with-
out notice of the bad faith and wrongful intention of the execu-
tor or administrator. A sale by an executor or administrator in

Digitized by


734 Jelkb v. Goldsmith. [Ohio^

payment of, or as security f or, his own debt, is snfiSeient notice
to the purchaser that the transaction is not for the benefit
of the estate, but for the executor or administrator individiullj,
and such a transaction is always held collusive and fraudulent:
7 Am. & Eng. Ency. of Law, 288-299, and notes; 2 Williams on
Executors, 7th Am. ed., 132, notes; Carter v. Manufacturos*
Nat. Bank, 71 Me. 448; 36 Am. Bep. 338; Duncan v. Jaudon,
15 Wall. 165; Field v. Schieffelin, 7 Johns. Ck 160; 11 Am.
Dec. 441; Smith v. Ayer, 101 U. S. 320.

In this last case, which involved the right of the executor to
pledge notes which came into his possession as executor, the court,
on pages 326 and 327, say: **There is no doubt that, unless re-
strained by statute, an executor can dispose of the personal assets
of his testator by sale or pledge for all purposes connected with
the discharge of his duties under the will. And even where the
sale or pledge is made for other purposes, of which the purchaser
or pledgee has no knowledge or notice, but takes the property
in good faith, the transaction will be sustained; for the pur-
chaser or pledgee is not bound to see to the disposition of the pro-
ceeds received. But the case is otherwise where the purchaser
or pledgee has knowledge of the perversion of the property to
other purposes ^^^ than those of the estate, or the intended per-
version of the proceeds."

The case of Duncan v. Jaudon, 15 Wall. 165, dted above, was
a case involving the right of a trustee to pledge stock (held by
him in trust) as collateral security for a loan to himself for faia
own purposes. The right was denied. The court, on page 175,
say: ^^The party taking such stock on pledge deals with it at hii
peril, for there is no presumption of a right to sell it, as there is
in the case of an executor. In the former case the property is
held for custody, in the latter for administration."

In the case of Field v. Schieffelin, 7 Johns. Ch. 150, 11 Am.
Dec. 441, which was a case involving the right of a guardian of
a minor to sell a note and mortgage which came into his posaes-
sion as guardian, and payable to him as such, the syllabus ia ai
follows: '^A guardian having the legal power to sell or dispose
of the personal estate of his ward in any manner he. may think
most conducive to the purposes of his trust, a purchaser who
deals fairly has a right to presume that he acts for the benefit of
his ward, and is not bound to inquire into the state of the trust;
nor is he responsible for the faithful application of the money,
unless he knew, or had sufficient information at the time, that
the guardian contemplated a breach of trust, and intended to

Digitized by


March, 189&] Jelke v. Goldsmith. 7S6

misapply fhe money; or was, in fact, by the yerj transaction,
applying it to his own private purpose.*' The chancellor, after
renewing the then cases on the subject, on page 160, says: '*I
hare thus looked pretty fully into the decisions in the analogous
case of a purchase from an executor of the testator's assets; and
they all agree in this, that the ^^^ purchaser is safe, if he is no
party to any fraud in the executor and has no knowledge or
proof that the executor intended to misapply the proceeds, or
was in fact by the very transaction applying them to the extin-
guishing of his own private debt/*

The case of Strong v. Strauss, 40 Ohio St. 87, is dted and re-
lied upon by defendant in error. In that case a guardian sold
notes made payable to himself as such guardian. The syllabus
is as follows: *'One who buys such notes bearing on their face
the marks of a trust fund is put upon inquiry; and if he buys
them from the guardian, under circumstances fairly indicating
that they were sold against the interests of his wards, he gets no
title from the guardian who misappropriates the proceeds of the

It appears in the opinion of the court and facts of the case that
the notes were sold long before maturity, for less than their face
value, and under a statute of this state authorizing a sale only
%hen for the interest of the ward.** The guardian acted in bad
faith and sold the notes for purposes of his own, and not for the
benefit of the wards. The court finds that the defendant, at the
time he bought the notes, had suflScient warning to put him upon
inquiry. The case, therefore, falls within the class of cases in
which both seller and purchaser acted in bad faith, and in such
cases the sale is always held invalid and collusive. In addition,
the power of a guardian was limited by statute to sales "when
for the interest of the ward.** Of this statute the purchaser was
hound to take notice, and see to the proper application of the
money paid for the notes. The case is therefore not in conflict
with the cases which hold that, at common law, such sales may
be made when the *^*'' purchaser acts in good faith without no-
tice, but falls within the class of cases where there is bad faith,
or a limitation of the power of sale by statute. Even in that
case it is conceded that a sale in all respects fair would be valid,
but that the purchaser would be bound to exercise a high degree
of caution in purchasing notes representing trust funds.

Therefore, and in view of the unbroken line of authorities,
the power and right of an executor or administrator, at common
law, to sell the securities of the estate cannot be questioned.

Digitized by


786 Jelkb v. Goldsmith. [Ohio^

How stood the law on ibis subject in this state at the time of
the sale of the notes in question?

Under our statutes, an executor or administrator may sell tlie
personal property of the estate at public sale without an order of
oourt: Bev. Stats., sec. 6076.

By section 6074 of the Sevised Statutes, the power of an execu-
tor or administrator to sell promissory notes, claims, demands,
rights of action, bonds, and stocks belonging to the decedent at
his death is taken away, except as to sale of desperate claims, and
bonds and stocks necessary to be sold to pay debts, as provided in
sections 6077 and 6080 of the Eevised Statutes.

Until the amendment of section 6162 of the Bevised Statutes,
February 18, 1891 (88 Ohio Laws, 41), and which was further
amended (89 Ohio Laws, 148), regulating and restricting the
sale of notes taken by an executor or administrator for real
estate sold by him, there was no statute in this state in any man-
ner abridging the power of an executor or administrator to sell
notes taken by him in the course of his administration of the es-
tate, and payable to himself in his representative capacity; and
therefore his ^^^ powers of sale, as to such notes, were as ample
as at common law, until February 18, 1891, wh«i section 616it
was amended as above stated.

There was, therefore, no want of power in the administratoT.
Kebler, on March 11, 1887, to sell the notes in question in gooc'
faith for the purpose of the estate, or in bad faith for purpoees ot
his own, provided the purchaser acted in good faith and without

Online LibraryAbraham Clark FreemanThe American state reports: containing the cases of general value and ... → online text (page 84 of 121)