#### Mary E. Miller *v.*Lucy Peters and others.

I. In proceedings for partition under the statute, the court has the same power to assign dower in a special manner, or otherwise than by metes and bounds, as it has in cases of petition for dower; and dower may, in such cases, be assigned in the form of a life annuity, and made a charge upon a part of the real estate partitioned.

‘2. Where the court so assigned dower in a partition case, and thereupon made an order requiring the parties in partition, *or their representatives or assigns,*to pay the installments of annuity as they should fall due, . and directing execution to issue in case of default: *Held,*that this order *{*was void for uncertainty; that no execution thereon could lawfully issue against the parties to the partition; and that the proper remedy of j the dowbress was by action to enforce the lien on the real estate so charged.

Motion for leave to file a petition in error. *271The facts shown by the record in this case are these: In January, 1867, W. M. Peters and others, heirs of William C. Peters, filed their petition for partition in the Common Pleas of Hamilton county, making Lucy D. Peters, one of the present defendants in error, who claimed dower in the premises, a party to the proceeding. Lucy D. Peters put in an answer, asking to have dower assigned to bier, either by metes and bonds, or in the form of a charge upon one or more of the lots sought to be partitioned. The usual order for partition and assignment of dower was made by the court, and the appraisers, being of opinion that the premises could not be divided without manifest inj ury, assigned to the widow, as her dower in all the lots described in the petition, the sum of eight hundred dollars per annum during her life, to be charged or made a *lien*upon lot No. 6, one of the parcels sought to be partitioned, and made return of this assignment, with an appraisement of the several lots, to the court — lot No. 6 being appraised subject to the dower charge. On return of the appraisement and assignment of dower, the same were approved and confirmed by the court, and W. M. Peters elected to-take one of the lots (No. 4.) at its appraisement, and it was adjudged to him. Afterward, and while the other lots remained unsold, and neither of them had been taken by the parties, the court, on motion of said Lucy D. Peters, made the following order: “ It is hereby ordered that the said sum of eight hundred dollars per annum, heretofore fixed by said commissioners as the dower interest of said Lucy D. Peters in the premises described in the petition and order of partition herein, and subsequently confirmed by the court and made a lien on the premises described as No. 6, . . . shall be paid by the said plaintiffs and defendants (heirs of William C. Peters, deceased), *or their legal representatives or assigns,*to the said Lucy D. Peters, or upon her written order, in equal quarterly installments of two hundred dollars each, on the 26th days of January, April, July, and October of each and every (year) during her natural life, . . . and upon default of any *272of said installments, . . . that execution issue therefor, as upon judgments at law.”

Subsequently all the other lots were taken by the several parties at their appraisements, and adjudged to them respectively by the court. Said lot No. 6, subject to the dower *lien,*was taken by W. M. Peters, and a deed therefor was duly executed to him by the sheriff, which deed recites that the lot is taken and conveyed subject to the *lien*aforesaid. Soon after the conveyance by the sheriff, "W. M. Peters conveyed the lot, subject to the same *lien,*to the plaintiff in error, Mary E. Miller. For several years after purchasing the lot, Mary E. Miller paid the dower installments -as they fell due, according to the order of the court. On the 3d day of September, 1874, one of the installments being then due and unpaid, an execution therefor was issued by the clerk, at the instance of the said Lucy I). Peters. This execution commands the sheriff that he cause said unpaid installment of two hundred dollars to be made of goods and chattels of the said heirs of William C. Miller (the plaintiffs and defendants in the partition suit), and that for want of such goods and chattels he cause the same to be made of said lot No. 6.

Upon this execution the sheriff made return that no goods and chattels of said heirs were found, and that he had levied the writ upon said lot No. 6.

A motion was then made on behalf of Mary E. Miller to set the execution and levy aside, on the ground that they were not warranted by the judgment or order of the court, and were without authority of law. This motion was overruled by the court. Upon error to the District Court the order overruling the motion was affirmed ; and leave is now sought to file a petition in error to reverse the judgment of the District Court.

*J. W.*$■ *G. B. Okey,*for plaintiff in error:

1. As Mrs. Miller is the owner, and in possession of the property levied on, she may move to set aside the execution, though not a party to the suit. Civil Code, sec. 503.

*2732. The proceeding was strictly under the statute relating to partition, and hence there could be no assignment of dower, except by metes and bounds. 1 S. & C. 898, sec. 13 ; S. & S. 310; 2 Swan’s Pr. & Pr. 1234; 2 Nash’s Pr. 1351; 16 Ohio St. 443; 21 Ohio St. 527. And although this “ special statutory proceeding ” (15 Ohio St. 460) may be entirely regular and valid as to the partition, still the assignment and confirmation of dower in this form, *in such*proceeding, is a nullity. *Gilliland*v. *Sellers,*2 Ohio St. 223; *Ludlow*v. *Johnson,*3 Ohio, 553, 561; 5 Har. & Johns. 130; 5 Foster, 302; 6 Wheat. 119-127; 27 Ala. 391-396, 675; 2 Yerges, 493 ; 33 N. H. 228 ; 25 Texas Sup. 132 ; 8 Howard, (U. S.) 495-543; 18 Wallace, 457.

3. Even if the assignment of dower is valid, the personal judgment awarding execution is void for uncertainty.

4. The execution can not be sustained as an order of sale.. Where land is to be sold to satisfy a decree, the court makes an order directing that some person or officer, in the-event the money is not paid, shall sell the property; and the process to be issued is called an “order” (15 Ohio St. 451); and that order must contain a description of the-property. Where an order was, like this, a paper “ containing no description of the land, except by reference to-other parts of the record, a sale thereupon made, though not void, was irregular, and rightfully set aside.” 9 Ohio-St. 336. Besides, the record contains no authority for any such order. 2 Howard, (U. S.) 43-60 ; 10 G. & J. 11; 25 Barb. 440. And an inspection of the record shows it was-not the intention of the court to order a sale. What sort of title would be conveyed to the purchaser? Would he-take the property discharged of the whole claim for dower, or would it still exist for the payment of other installments ?' Can the sheriff sell, on such execution, anything else than a legal title? What is to be done with the money arising from the sale ? Is the balance, after satisfying this execution, to be paid over to Mrs. Miller, or must it be invested for the benefit of Mrs. Peters, to meet the installments of *274the dower charge as they become due, depriving Mrs. Miller of any further benefit from the property until the death of Mrs. Peters ? Or is the money to be in some way divided ? All this, and other matters readily suggested, would have been provided for in the decree, if it had been the intention to order a sale, in any event, without further proceedings, either in this case or by independent suit.

5. As an execution, the writ is irregular and ought to be •set aside. It directs a levy on the goods and chattels of the parties in the partition suit, and in default of such property, the officer is commanded to levy on Mrs. Miller’s lot. But the deci’ee awards execution “ as on judgments at law,” which, if this judgment has any validity, is an execution, as applied to this case, commanding the sheriff to make the mbney out of the goods and chattels of the parties in the partition suit, and in default of such property, then out of their lands and tenements. Civil Code, sec. 428. Not oñly is it true that “ there must have been a seizing in execution upon authority to seize ” *(Bool*v. *King, 6*Ohio, 11), but that authority must be found in the judgment'; for the clerk, being a ministerial officer, can only issue such execution as the court awards; and hence the execution must pursue the judgment and requirements of the statute ■strictly, in all matters of substance, and generally even in matters of form; and if any modification is desired, it can only be obtained by application to the court, in due form, •on ■ notice to all parties in interest, either in the same suit ■or an independent action, according to the nature of the defect to be i’emedied. Herman on Executions, sec. 65; Rorer on Jud. Sales, sec. 966; *Billingheimer*v. *Richey,*2 Superior Court Rep. 492; 39 Geo. 565; 44 Geo. 616; 45 Geo. 610; 27 Ark. 20-22; 29 Iowa, 176; Martin & Yerger, 45; 10 Cal. 411; 27 Mo. 293; 2 Conn. 462; Busbee L. 262-264 ; 4 Howard, (U. S.) 58 ; 6 Johns. L. 282; 24 Ark. 496; 8 Rich. L. 345; 8 Mass. 79; 8 Ired. L. 1; 5 Hill, (N. Y.) 501; 10 Howard’s Pr. 215 ; 32 Barb. 277; 4 Scott’s N. R. 678.

*2756. If either the judgment or execution is invalid, there is no estoppel.

*Kebler § Whitman,*for Mrs. Peters:

The dower was regularly assigned, and the decree for it is clearly valid. Partition act, 1 S. & C. 898, secs. 8, 12, 13 ; dower act, 1 S. & C. 521, secs. 11, 13, 14; S. & S. 310 ; *Bank U. S.*v. *Dunseth,*10 Ohio, 18. Our statutory provisions relating to dower are to be construed together. Besides, *W,*M. Peters, and Mrs. Miller, who claims under him, are estopped. 2 Scribner on Dower, 80, 82, secs. 31, 37. Moreover, the judgment is in proper form, and is ample authority for the execution, which is in conformity to it. The intention was, that in case of non-payment of any installment of the dower charge, lot 6 might be sold to satisfy it. Any other construction of the judgment renders it nugatory; whereas, the construction .should be such as to uphold instead of destroy the judgment.

Welch, J.

It is quite clear to us that this execution was issued contrary to law, and that the court erred in refusing to set the same and the levy made under it aside. There was no judgment or order of court authorizing any such execution. The court made no order for the sale of lot No. 6, nor did it order execution to issue against any *certain person or persons*for the unpaid installments of dower. The order of the court was, that these installments should be paid by the parties in partition, *or their representatives or assigns,*and in default that execution should issue therefor. This order is void for uncertainty. A judgment against A *or*B is no valid judgment against either A or B, and is simply void. There was no judgment here against the parties in partition. It was a judgment against them, *or*their representatives or assigns, who were no parties to the proceeding, and over whom the court had acquired no jurisdiction. It is argued that the order or judgment of the court touching the dower is void for the further reason, that in proceedings under the statute for partition the court *276has no power to assign dower except by metes and bounds. We think otherwise. The court, in our judgment, has the same powers in partition cases, as to the manner of assigning dower, as it has upon petition for dower under the dower act. But this objection could not avail, even if the-law were otherwise, because the court had jurisdiction of the subject-matter, the assignment of dower, and if it erred as to the manner of assigning dower, the judgment, though erroneous, would still be valid until impeached by direct proceeding in error. We think, however, that there was-no error in assigning the widow’s dower in this special form, and making it a lien or charge upon the lot named, but that the widow has mistaken her remedy, which should be by a new action or proceeding to enforce the lien, and not by an attempt to take out execution under the order.

*Motion granted, judgment reversed, and execution and levy set aside.*

McIlvaine, C. J., White, Rex, and Gilmore, JJ., concurred.