Page:Borden v. State ex rel. Robinson.pdf/48

ported in 9 Howard's (U. S.) Rep. 366, and coming from the same court whose decisions are mainly relied on in support of a different doctrine from that for which I contend, I will briefly present the facts upon which the decision was made, as well as that portion of the decision directly bearing upon the point under consideration here. Hawkins, Boswell, Barry and Whitmore were partners in building a mill on a lot in Lower Sandusky. Hawkins, who was superintending the building of the mill, filed his bill against the other partners for a settlement, averring that he had laid out a sum over and above his proportionable part of the expenses incurred in the partnership business and that the other partners had acquired title to two-thirds of the lot and refused to convey any part of it to him, and prayed a decree for any balance due him and for one-fourth of the lot. One of the defendants resided in Massachusetts; the others, in Kentucky. Notice was given by an order of publication in a newspaper according to the Ohio statute. The defendants failed to appear; the bill was taken as confessed; the master reported a balance in favor of complainant, for which a decree was rendered; and it was also decreed that the decree should have the force of a judgment at law and be a lien on all the lots of the defendants in the county, and unless paid within thirty days execution should issue as on ordinary judgments. Upon this decree execution issued and a lot of ground (not that upon which the mill was built) was regularly sold and a deed in due form made to the purchaser. In an action in ejectment the question arose as to the validity of the title thus acquired. Mr. Justice McLean, who delivered the opinion of the court, states two points: "1, Whether or not the proceedings and decree as set forth in the record above stated are coram non judice." "2, Admitting said decree to be valid, so far as relates to the land specifically described in the bill, whether or not said proceedings and decree are coram non judice and void so far as relates to lot No. 7 in controversy in this case, and which is not described in said bill in chancery, or, in other words, whether the proceedings and decree are not in rem, and so, void and without effect as to the other lands sold