PARTITION.

[Franklin Circuit Court,

September Term, 1892.] .

Shearer, Stewart and Shauck, JJ.

#### MARY R. ENGLISH ET AL. v. WILLIAM MONYPENY.

1. Service of Process by Mail Proven by Parol.

Where in a suit in partition, the clerk of the court mails newspapers, containing "notices of the pendency of the suit, in serving non-residents to such defendant, address under sec. 5048 Rev. Stat., but does not make an entry thereof upon the appearance docket, parol evidence is competent to show that such papers were sent.

2. Presumption of Service Raised by Finding of court.

A finding by the court in such cases that all defendants have been duly served with notice according to law, though not conclusive, raises a presumption of due service.

3. Judgments Conclusive as to all Questions Capable of being Controverted.

Since the revision of the statutes made in 1880, suits in partition are civil actions, and judgments rendered therein are conclusive of all questions which were, or might have been, controverted therein.

4. Tenant in Common Entitled to, though Trustee for Others.

A- tenant in common of real estate, owning a moiety thereof, may maintain an action of partition, although he controls the whole property as such owner and as trustee of the other moiety.

5. Owner of Moiety Although a Trustee, may Acquire Valid Title at Sheriff’s Sale.

The plaintiff in a suit for partition, owning a moiety absolutely, although also a trustee of an interest in the premises, may, if he acts in good faith, acquire a valid title by purchase at a sale ordered in such suit, for he does not control the sale. The sheriff controls it under the court’s approval.

Appeal from Court of Common Pleas of Franklin county.

The following facts appear from the admissions of the pleadings, and from the evidence submitted upon the issues j'oined:

Prior to July, 1881, John C. English and William Monypeny had been associated in business, and their relations were friendly and confidential, and at the date mentioned they were seized as tenants in common of eight tracts of real estate in Franklin county, Ohio, some of them on High street, in the city of Columbus.

July 19, 1881, English died, testate, and the relations between his family and Mr. Monypeny continued to be friendly and confidential. The provisions of the will of John C. English, so far as they are material to the present controversy, are as follows:

“I. My property, real, personal and mixed, and choses in action shall go into the possession and control of my executor, to be by him managed and cared for, except so far as special disposition is otherwise herein made. * * *

“II. The real estate which I own jointly with William Monypeny, I desire shall be left in said Monypeny’s control, to be managed by him, with power, so far as my interest therein is concerned, to make such repairs and improvements thereon as he may think best, and to lease the same and collect the rents, accounting therefor to my executor; and in case he sees proper to sell his interest therein, then he may also sell my interest therein; and for these purposes I hereby appoint him trustee in that behalf. In case of sale thereof, my executor may, if the means of the estate will justify, purchase the said property, that is, said Monypeny’s interest therein, for my estate. This trust shall terminate on the division of my estate.

“III.This item relates to the continuance of his mercantile business on certain conditions, but not “longer than the time for the division of my estate.”

“IV. Places residence, household goods, etc., under control of testator’s widow or eldest d_aughter at home, for the purpose of keeping the family together, etc.”

“V. Out of the income of my estate there shall be paid to my wife (or daughter in charge of the family as above provided), the sum of five thousand dollars per annum in installments for the expenses of the family including the cost of education.

. 'VI. All my real estate in Franklin county, except those parcels before spoken of herein, shall be held until the division of my estate; and at that time all the real estate then held for my estate shall be divided equally among my children, one full third thereof being assigned to my wife for and during her natural life, which third subject to such life estate, shall be also divided among my children as aforesaid.”

“VII. Authorizes executor at discretion to sell- real estate outside of Franklin county, and to re-mvest proceeds, if sold before time fixed for division of estate.”

*583“IX. Provides for division of estate when testator’s youngest child should reach the age of twenty years, and for sale by executor of interest in mercantile business, if that should be so long continued.”

“ X. I hereby nominate and appoint J. G. Gilmore to be executor of this my last will, and authorize and empower him to make, execute and deliver all needful and 'proper ■deeds and other conveyances, on all sales he is herein authorized to make; and also to compromise and adjust all claims in favor of or against my estate as he shall deem best; .and also to take in his own name as executor, title to any real estate purchased by him under the powers of investment herein conferred on him; and on the division of my estate he shall, and is hereby authorized and empowered to make to the devisees deeds for their respective shares of the real estate, as well that which I leave and which shall not before have been sold as that which he purchases as aforesaid; and in order that he may make these deeds, and the others above mentioned, and also that he may insure the real estate in his own name as executor, I hereby devise to him all my real estate, wherever situate, as executor. He is also authorized to keep insured in his own name, as executor, any personal property belonging to my estate, that in his opinion should be insured.”

On February 5, 1882, Monypeny filed his petition in the court of common pleas of Franklin county, for the partition of said tracts so held in common, naming as defendants ±0 his suit J. G. Gilmore, who was the executor of said will, and the plaintiffs in this action, who are the. widow and children of said John C. English, who are also the beneficiaries named in his will. Proper summons was issued in said case, and due personal service thereof was made upon said executor. As to the other defendants in said suit, the sheriff returned: “None of the other within named defendants found in this county, and none of them have any usual place of residence in the county, at which service can be made.” Tlureupon Monypeny filed an affidavit in due form for service by publication, and notice in due form and for the required time was given by publication. Immediately after the first publication of said notice, counsel for Monypeny procured copies of the newspaper containing the same, took them to the clerk of the court, gave him the addresses of the absent defendants, tendered him the necessary postage, which he declined to accept, saying that he would pay it himself. At the same ,time counsel for Monypeny gave the clerk directions to send one of said newspapers to each of said absent defendants. The places of residence of said absent defendants were in fact, and as stated in said affidavit for service by publication, and in said published notice, as follows: Mary R. English and John R. English, at

Thomasville, Thomas county, Ga., and the others at South Bend, St. Josephs county, Ind., and said newspapers containing said copies, were by said clerk mailed to said defendants, ■one to each of them, at said addresses, but said clerk did not note on the margin of the appearance docket that he had sent such notices, nor did such notices come to the attention of any of said absent defendants, except Mary R. English.

Afterwards, on motion of counsel of Monypeny, a guardian *ad litem*for the minor defendants was appointed by the court, and on the same day said guardian filed his answer therein, denying every allegation of said petition prejudicial to said infant defendants. No other answer was filed in the case, and upon the same day on which said guardian filed his answer, the court found that the other defendants were in default for answer, and upon the exhibits and evidence found that due notice of the pendency of the action had been given according to the statute in such cases made and provided; that the allegations of Monypeny’s petition were true, and that he had a legal right to and was seized in fee of the undivided interest which he alleged in said parcels of real estate, and that the defendants had a legal right to, and were seized in fee of the remaining interest therein, subject to the terms and conditions of said will of John C. English, which was fully set forth in said ■petition. An order of partition in due form was made decreeing that the defendants should hold the premises aparted to them under the terms and conditions of said will until such tenure should be lawfully changed. May 15, 1882, a writ of partition was accordingly •issued. By the return of the sheriff and the accompanying report of the commissioners, .a portion of said premises was aparted according to the interests of the parties, and it was reported that the remaining parcels could not be divided without manifest injury to the -value thereof, and of such indivisible parcels appraisements were reported.

Said report was confirmed, and a sale of said indivisible parcels was ordered. After ■due advertisement, they were offered at public auction by the sheriff, and sold at more than two-thirds of the appraisement, one parcel to one Hosier, and the remaining five •parcels to William Monypeny. Upon report thereof, such sales were confirmed, and deeds ■ordered and executed accordingly.

On distribution of the proceeds of such sales, the sheriff was ordered to pay to James G. Gilmore, as executor of the will of John C. English, the portion thereof equal to the latter’s interest in the real estate, to be held, administered and distributed by him as executor in lieu of said real estate according to the terms and conditions of said will.

Since his purchase as aforesaid, said Monypeny has made permanent and valuable •improvements on some of the premises so purchased by him, and said premises aside from such improvements had materially appreciated in value between said sale and the bringing -of this suit.

*584From the beginning of said partition suit until,the conclusion of said sales, said Monypeny acted in good faith, and sought to secure the presence of bidders at such sale, and the sale of said premises at the highest price obtainable.

James G. Gilmore acted as executor of the will of-John C. English from July, 1881, to-' August, 1886, when he was succeeded in the execution thereof by the plaintiff, Mary R. English.

After the death of English, Monypeny controlled the said real estate so owned in common by them as he had before his death, and on June 17, 1882, he appeared in the probate court of said county and qualified as trustee under said will.

Both Monypeny and the executor, Gilmore, were present at said sale and bid upon said property. ■

Jessie R. English was the youngest child of said John C. English, and she reached the. age of twenty years April 26, 1892.

The property set off to the defendants in said partition suit was taken possession of by them, and they have never conveyed or offered to convey any interest herein to said Monypeny.

Before the institution of said partition suit, one tract of land owned by English & Monypeny, was sold and conveyed to Watson & Huffman, the deed therefor being signed by William Monypeny and wife, William Monypeny, trustee, and James G. Gilmore, executor; and on February 3, 1882, a written contract was executed between William Monypeny and William Monypeny, trustee, of the first part, and John D. Burnet of the second part, for the sale and conveyance to said party of the second part of one of the tracts in said partition proceedings, but said sale was riot carried out because of inability of the part}’of the first part to make a title acceptable to Burnet.

The money ordered by the court in said partition suit to be paid to the representatives oí John C. English, deceased, was paid to Gilmore as his executor, and was by him administered accordingly, a portion thereof being used in the payment of the debts of said English, and a portion in making the payment of $5,000 per annum for the support of his family, as directed in said will. No portion thereof has been tendered back either to said Hostfer or to said Monypeny, and said Hoster has made permanent improvements on the tract so sold to him.

The plaintiff, Mary R. English, had actual knowledge of the pendency of said partition suit before the order of partition was made, and was desirous of the sale of the English interest in said lands in order that the executor might be supplied with means to carry on the mercantile business and pay the debts of her late husband.

The sales to Monypeny were for the reasonable value of the premises sold, and for the best prices attainable.

Said Monypeny- did not by his presence at said sale pr in any other way, check bidding upon said property.

Upon these facts the plaintiffs ask that said partition record may be vacated, and the defendant adjudged to be a trustee for them of the property so purchased by him at said sale.

SHAUCK, J.

Many of the facts stated in the foregoing finding are immaterial in our view of the case, but they are found to the end thdt if there should be a review of our judgment, counsel may present the case according to their own views.

The evidence fails to fasten upon Monypeny any imputation of a desire to purchase the property at less than its value. The executor was attending faithfully to his duties. He and Monypeny were represented by different counsel, whose known honor and fidelity to professional duty forbids a suspicion of collusion. Monypeny’s advertisement of the sale beyond the requirements of the statute, and at his own expense, makes it doubtful if he expected to purchase at all.

But, notwithstanding the good faith of the purchaser, counsel for plaintiffs contend that they are entitled to relief because in the partition suit the court did not have jurisdiction of their persons, nor of the subject matter of the suit, and because Monypeny was within the rule of equity, which forbids trustees to purchase at their own sales.

In the case of Long v. Mulford, 17 O. S. 485, which is pressed upon our attention as conclusive, the court gave much consideration to the facts that the defense of a guardian *ad litem*was not called to the attention of the court, and that an actual fraud had been perpetrated under the forms of a judicial inquiry. We aré to determine a case in which there was no fraud, and in which the rights of thv infants were before the court, for those rights all rested upon the will of their father which was fully set out in the petition for partition.

*585The clerk did not make upon the appearance docket an entry of the fact that he had mailed to each of the absent defendants a copy of the published notice, as directed by sec. 5048, Rev. Stat. There is, however, no provision of the statute which by its terms, or by proper construction, makes this memorandum of the clerk exclusive evidence of the mailing of such copies.

In accordance with the familiar principle that parol evidence may be offered in aid of a record, though not in contradiction of it, we regard the evidence presented to us upon this point as competent to show that the clerk in fact mailed such copies. Its effect is to establish the fact that he complied with that provision of the statute, even if we assume that the burden is on the defendant. Wilson v. Basket, 47 Miss. 637.

But the record in the#partition suit is not silent upon the subject. The court “upon the exhibits and evidence found that due notice of the pendency of the action had been given according to the statute in such case made and provided.” Findings of fact made by courts of record in the exercise of jurisdiction, are conclusive. Although there is much reason and authority for denying conclusiveness to its findings regarding facts upon which its jurisdiction depends, a presumption should be indulged in favor of the jurisdictional fact found. Freeman on Void Judicial Sales, sec. 8; Rhodes v. Gunn, 35 O. S. 387; Callen v. Ellison, 13 O. S. 446. But whatever the presumption may be, the evidence-shows that the clerk in fact mailed the copies. It follows that jux-isdiction of the persons of these plaintiffs was obtained in the partition case. Freeman, Judgments, 127.

The conclusion that the court had jurisdiction of the persons of these plaintiffs furthers the inquiry as to its “jurisdiction over the subject of the action,” as it has been called in the argument. The -claim is, not that the court of common pleas did not have jurisdiction to apart lands among tenants in common, but that because Monypeny, alone, was entitled to the possession of the lands, he ■ holding one moiety in his individual right and the other as trustee under the will of English, the court did not have before it a proper case .for the exercise of that jurisdiction. This is upon the theory that an order in partition does not affect title, but possession only. Most of the decisions cited by counsel for plaintiffs upon this point and of their deductions from them are without application to suits in partition since the revision of the statutes in 1880. It has been repeatedly held by this court that all suits in partition are now civil actions, and that I believe to be the uniform holding of the courts of the state. “The civil action, of the code is a substitute for all such judicial proceedings as were previously known either as actions at law or suits in equity.” Chinn v. Trustees, 32 O. S. 236; Commissioners v. State, 49 O. S. 373. Monypeny’s right to have these lands aparted was determined in the former case. To that determination .there attaches the usual incident that the judgment is conclusive of all questions which might have been, as well as those which were, controverted in the case.

But if the question were open, we could not arrive at a different conclusion1 upon this point. It is inaccurate to say that Monypeny accepted the provisions, of the will of English. No provisions were made for him in the will, and the case presents no equitable considerations upon which he can be held to have waived his right as a tenant in common to have the lands partitioned at any time he might choose to do so. Cheeseman v. Thorne, 1 Edw. Ch. 629.

But the chief reliance of counsel for the plaintiffs is upon the proposition that Monypeny’s qualification as trustee under the will made him amenable to the rule that a trustee cannot purchase at his own sale. This rule is too firmly established to admit of question. It is founded upon considerations of policy, and, where the trustee is actually both vendor and purchaser, it supersedes all inquiry as to the fairness of the sale, or the adequacy of the price. In the multitude of reported cases in which this rule has been extended and applied, there are many irreconcilable contradictions. They are, however, in accord upon the proposition that if the trustee controls the sale, he cannot, either personally, *586or by another who acts in his behalf, become the purchaser. Within the rule thus stated, consideration is due to the fact that although Monypeny filed the petition for partition, the action taken upon his petition was by the court, and the property was offered for sale by the court through its executive officer, the sheriff, who has unrestricted control of the sale, subject to the approval of the court. In Chorpening’s Appeal, 32 Pa. St. 315, Thompson, J., speaking of such a sale, says: “The reason of the law is its life, and unless some advantage might be gained by reason of the relation (that of trustee), the principle does not apply.’’ To the same effect are Fisk v. Sarber, 6 Watts & S. 18; Prevost v. Gratz, Peters C. C. 364.

Powell, Owen, Ricketts & Black, and Fairbanks, Smith & Steele, for plaintiffs.

Harrison, Olds & Henderson; Booth & Keating and Nash and Lentz, for defendant.

It is true that Monypeny had qualified as trustee under the will, but to ascertain the character and purpose of the trust, reference must be had to the provisions of the will. The second item of the will makes him a trustee to manage the property, and account for the rents thereof to the executor, Gilmorel It also provides that he may sell the testator’s moiety when he should see proper to sell his own. No title is devised to him, and no power to convey is expressly given. Assuming that the power to convey might be implied from these provisions, if this item stood alone, that implication is forbidden by the tenth item, which expressly devises all the testator’s real estate to his executor. There can be no proper interpretation of a will which does not regard its scheme and of all of its provisions. Looking to the entire will, it seems quite clear that the testator contemplated that his real estate might remain in the condition it was then in, until his youngest child should attain the age of twenty years; but if in the meantime Monypeny should choose to sell his moiety of the property in controversy, he might include the testator’s moiety in his bargain, and the executor should convey. Monypeny’s trust did not include the power to alienate the title to the testator’s moiety of this property, and it was not enlarged by the fact that at the request of Watson & Hoffman, he attempted to 'aid their title to the parcel sold to them by conveying as trustee. He was not a trustee of his own wrong, but by the provisions of the will.

Whatever may have been his powers as trustee under the will, it is entirely clear that Monypeny exercised no such power in instituting and prosecuting the suit which ended in this sale. In so doing, he exercised only the rights which the statute conferred upon him as a tenant in common in lands. It would seem obvious that rules contrived to prevent the abuse of their powers by trustees, should not be applied in cases where no such powers are exercised.

Counsel for the defendant contend that as the executor, upon whom it is admitted proper service was made, was vested with the legal title to the English moiety of these lands, no other party defendant was necessary in the partition suit; and that the present action cannot in any event be maintained while the plaintiffs are in the possession of the lands aparted to them and receiving the benefits of the moneys paid by Monypeny upon his purchase. A consideration of these points could, at most, only develop additional reasons for rendering judgment in favor of the defendant, and we content ourselves with those already given.

Petition will be dismissed.