Boon v. Bowers

FlSHER, J., delivered the opinion of the court. This was an action brought under the Pleading Act of 1850, by the plaintiffs below, as heirs at law of one William H. Bowers, deceased, in the Circuit Court of De Soto county, to recover a tract of land in the possession of the defendant. The questions for consideration, arise out of the action of the court below, rejecting the evidence introduced by the defendant for the purpose of establishing his title to the land in controversy. It appears that at the January session, 1848, of the legislature of this state, a special act was passed authorizing one Israel Dille, who had^qualified as guardian of the plaintiffs in the proper court of the State of Ohio, to sell the lands of the said Bowers, situate in the county of De Soto: that he proceeded in virtue of the powers thus conferred upon him to make the sale, when the defendant became the purchaser. The third section of the act provides as follows : “ that the said Israel Dille, shall account faithfully to the widow and heirs of the deceased, for the proceeds of the sales of said lands, and shall, before he executes any deed of conveyance for any of said lands, execute a bond according to the laws of Ohio in such pmalty, and with such conditions, as shall be prescribed by the judge of the Court of Common Pleas of the county of Licking in said state, to secure his accountability for all moneys received for said lands.” It further appears that Dille, the guardian, executed a bond [256] which was approved by the Court of Common Pleas of Licking county, Ohio, in the penalty of twelve hundred dollars, with condition to apply the proceeds of the sales of said lands, according to the provisions of the above named act of the legislature. The questions which come up for consideration upon the foregoing statement of facts, will be noticed in the order in which they have been discussed by counsel. An elaborate argument has been made, with a view of showing that the statute is unconstitutional, on the ground that the subject-matter of legislation belongs to the judicial, and not to the legislative department of the government. Perhaps, if this were now an open question in this court, we would feel bound to yield to the force of the argument and authorities cited by the counsel of the defendant in error. We do not, however, intend to intimate an opinion in this respect. This court, after much consideration, and a careful examination of the authorities relating to the subject, sustained an act of the legislature passed in 1821, in most of its provisions similar to the one now under consideration. The question is one solely of legislative power, and not of expediency. The question of power, we regard as firmly settled by the well considered opinion in the case of Williamson et ux. v. Williamson et al., 3 S. & M. 744. Every consideration of policy admonishes us, even if we believed that there was room to doubt as to the correctness of the decision in that case, not to enter upon a review of it, nor to disturb it at this late day. All questions which have an important bearing upon titles to property, and which have, as in, this instance, been once carefully considered, and solemnly settled by this court, ought not to be treated as open for future investigation, unless it shall appear that the evil resulting from the principle established, must be productive of greater mischief to the community, than' can possibly ensue from disregarding the previous adjudications upon the subject. This ought to be the inflexible rule by which a court of last resort should be guided, with reference to all questions which may be reasonably supposed to arise between parties in consummating a contract for the sale or purchase of real estate. The party proposing to sell, may be supposed to exhibit either his title to the land, or his authority, if acting in [257] the capacity of agent, to make the sale. The purchaser, to judge of either, must look to the law as it exists at the time. The point for his consideration is, whether the party proposing to sell is clothed with legal authority to make the sale. The special act of the legislature is produced, and the question thereupon arises, had the legislature power to enact the law ? The decision of this court is examined, and the question of power, after mature deliberation, decided, and determined to be within the pale of legislation. It is indeed not venturing too far, to presume that the party petitioning for the enactment of the law, the legislature in enacting it, and the party purchasing in virtue of the power thus conferred, all acted with reference to the law as settled by the decision which we are now asked to overrule. We see nothing in the case to justify us in departing from the rule as settled by the former adjudication, and we therefore hold, that the law is not in conflict with the constitution. It is next insisted, that the third section of the act required the judge of the Court of Common Pleas of Licking county, Ohio, to take and approve the bond, and that the law has not been complied with in this particular, because the bond was taken and approved by the court, and not by the judge as an individual. We are unable to perceive the force of this objection. Where a court is composed of only one judge, as in this instance, we are unable to comprehend why the act of the court is not at the same time the act of the judge. The law contemplated that the judge should act in his official, and not in his individual capacity. To suppose the latter, would be doing violence to all legal presumptions. Officers who act under oath, and with a due sense of their official responsibility, are presumed to perform their duty faithfully, in regard to all matters within the scope of their authority. To agree with counsel, we must reverse this rule, and hold that private individuals who do not act under these solemnities are presumed to do right, and officers are presumed to do wrong. It is again objected, that the bond is not in a sufficient penalty, and that the condition is not such as is required by law. In regard to both of these matters the judge is by the third section of the law clothed with a discretion. The purchaser of the land had [258] nothing to do with either the penalty or condition of the bond. He could only know whether a bond in a penalty, and with a condition prescribed by the proper officer, had been given. This has been done. The other points discussed by counsel, do not, under the view which we have taken of the case, require consideration. Judgment reversed, and a venire de novo awarded. An elaborate petition for a re-argument was filed, but refused.