24 OHIO DECISIONS. Clark Probate Court. Vol. taken, it would seem that no injustice would result from that remedy; surely the city was not in a position to complain." It is the contention of the plaintiff that the city of Cincinnati is now using and exercising the same control and dominion over the sewer in controversy, as it does over any of the sewers in the district, and that the plaintiff is left with only such rights as belong to the owner of abutting property under permission to use the sewer. His dominion over it and his power of choice as to the uses to which he will devote it are materially limited, as that, in short, the city of Cincinnati acquires a permanent easement in it. It has been held in Reeves v. Treasurer, 8 O. S., 333, that the right to pass sewerage over the premises of another is a property right, and that an easement is property, and to the extent of such easement private property is taken within the meaning and spirit of the constitutional prohibition. See also McQuillan v. Hatton, 42 O. S., 202., If the city of Cincinnati, by its acts has appropriated the sewer in the sense that it has deprived the plaintiff of all dominion and control over it, and limited him to only such rights as may be vested in the owner of abutting property under permits to use the same, then the plaintiff would be entitled to compensation for such appropriation as of the right of way for the sewer. If, on the other hand, the city has taken the sewer for a special purpose, and has not deprived the plaintiff of his rights further than that the owner shall not use the sewer for purposes inconsistent with the special purpose for which the city has taken it, then the city has taken only the easement in the sewer. In any event, the case was probably referable to a jury, under proper instructions of the court, to determine whether in fact there has been an appropriation by the city of Cincinnati of the property of the plaintiff, and as to the character and value of any property so appropriated for public uses. The court is of the opinion that there was error in the court in special term in arresting the testimony from the jury and in directing a verdict for the defendant. The judgment of the court in special term is reversed and the cause remanded. SMITH and JACKSON JJ., concurring. Burch and Johnson, for plaintiffs in error. Frederick Hertenstein, corporation counsel, contra. EXECUTORS AND ADMINISTRATORS. [Clark Probate Court, February, 1892.] IN RE ESTATE OF H. S. WILLIAMSON. EXECUTORS HAVING FULL AUTHORITY TO Sell Real Estate Should Report FULLY. An executor or administrator, with the will annexed, who is given full authority to sell real estate, should set out in his account the date of the sale, the location of the land, the amount sold, and the name of the purchaser. ROCKEL, J. By the will of H. S. Williamson, deceased, his executor was directed and given complete and ample authority to dispose of all his real estate VII. SUPERIOR AND COMMON PLEAS COURTS. 25 The executor having died, E. G. Coffin was appointed administrator de bonis non with the will annexed by this court. Mr. Coffin proceeded to administer upon the estate and sold a number of tracts of land situate in Ohio and other states. In his account filed of his administration, the administrator merely gave the name of the purchaser and amount received, without designating the price per acre, the number of acres sold, or the location of the land. Exceptions were filed by the residuary legatees, claiming that the account should show these matters. Where by will an executor or administrator is given full authority to dispose of the real estate of deceased without further proceedings in court relating thereto, either asking for sale or confirmation of the same, it would seem to us to be proper to require the executor or administrator in making his account, to set out with reasonable fullness all such sales, giving the date of sale, the location of the land, the amount sold, and the name of the purchaser. This account will be the only record kept of the executor's discharge of his trust and it ought to be full enough to, at all times, advise any interested person of the disposal and administration of the assets of decedent's estate. When the executor must secure the order of the court for sale of decedent's estate, and report and have confirmed the sale of the same, all the matters being matters of record and accessible at all times, will justify the omission of some of the matters therein contained, and the account need not be as specific as where the executor makes no other return of such sales. The account will be ordered reformed accordingly. Jas. Johnson, Jr., for heirs. JUDGMENTS. [Huron Common Pleas Court, September Term, 1897.] SOPHIA SHOUrds v. Augusta Allison. 1. JUDGMENT BECOMES DORMANT WHEN. A judgment of the court of common pleas becomes dormant and ceases to operate as a lien on the land of the judgment debtor, if the execution be not sued out "within five years from the date of the judgment." Section 5380, Rev. Stat. 2. Date of JUDGMENT. "The date of the judgment," as intended by the legislature is the day on which the judgment attaches its liens upon the land of the judgment debtor. 3. LIEN CREATED BY JUDGMENT ATTACHES When. Except in certain specified cases, the lien of a judgment binds the land of the debtor in the county from the first day of the term at which the judgment is rendered. Section 5375, Revised Statutes. 4. SUCH LIEN RELATES BACK AND ATTACHES AS OF THE FIRST Day in the Term. The lien is but an incident to the judgment, and was made to relate back and attach as of the first day of the term, because of the fact that the judgment itself relates back to that day. Huron Cominon Pleas Court. 5. JUDGMENT BECOMES DORMANT AND Ceases to OpeRATE AS A LEIN, WHEN. On all judgments of the court of common pleas where, under sec. 5375, the land is bound from the first day of the term, the judgment will become dormant and cease to operate as a lien unless execution is sued out within five years from that day. To keep the judgment from slumbering and preserve the lien, it is not sufficient to sue out execution within five years from the day when the judgment is actually rendered or entered. WILDMAN, J. In this case, a question of statutory construction is raised, which it is a matter of surprise to find unanswered by any express adjudication. After the lapse of nearly a century since the organization of our state, it might not unreasonably be supposed that courts would have unequivocally determined as to just what is the date of a judgment. That lands of the debtor, within the county where the judgment is entered, are, except in certain specified cases, bound from the first day of the term at which judgment is rendered, is expressly provided by the statute (sec. 5375, Rev. Stat.); but it is contended that the period of five years within which execution must be sued out to prevent dormancy, does not begin to run until the date of the actual entry of the judgment on the court's journal. By the terms of the dormancy statute (sec. 5380, Rev. Stat.), it is provided that "it execution * * * be not sued out within five years from the date of the judgment, * * *such judgment shall become dormant and shall cease to operate as a lien," etc. The question presented, then, is--what is the precise significance of the phrase, "date of the judgment," as used in the section last quoted? The question becomes important in view of the facts presented in this case. The suit is brought to quiet plaintiff's title to certain lands in this county, described in the petition. The defendant, Augusta Allison, is a judgment creditor whose judgment was rendered at the May term of this court, 1890. The term began on the 12th day of May, 1890, and the plaintiff's action was then pending, but the judgment was not in fact entered until the 29th day of the same month. On the 24th day of May, 1895, when more than five years had elapsed from the first date mentioned, but less than five years from the entry of the judgment, an execution was issued and levied. Meanwhile, to-wit, on or about the 5th day of February, 1894, while said judgment was in full force, the plaintiff purchased the property from a grantee of the judgment debtor. Other questions are raised in the pleadings and on the trial, but the sole question which it is now my purpose to determine is that already stated, whether or not the judgment became dormant and ceased to operate as a lien upon the land, by reason of the fact that execution was not sued out within five years from the first day of the term at which the judgment was rendered. If it did so cease to operate, the subsequent levy of an execution was invalid, and the plaintiff's title should be quieted. If, on the other hand, the statutory period within which execution should issue to preserve the judgment from dormancy and the lien from destruction, did not expire until five years from the actual entry of the judgment, the other issues in the case remain for later consideration. The question presented is one which, it might be supposed, would have arisen very early in the courts; but a somewhat careful research among the reported adjudications in our state, has failed to disclose a case in which it has been presented and passed upon. Several dicta of emi Shourds v. Allison. nent judges of our Supreme Court have been found and quoted by counsel in argument, and some of them are valuable as indicating the trend of opinion of such judges, but in no instance was the precise question here presented involved. The statute, looking at the phrase employed, requires the execution to be sued out within five years from what? Not the entering of a judgment on the trial docket or the journal, which is a ministerial act, the mere recording of the judicial act of deciding or ordering which has gone before (See Freeman on Judgments, sec. 38.); nor even in terms within five years from the rendition of the judgment; but the exact phrase is, "the date of the judgment," and our inquiry must be whether these expressions are convertible ones, or whether the date of the judgment, as understood by the lawmakers, was one thing, and the time of its rendition or rendering, another. The distinction becomes important, because the latter phrase has received such judicial construction as must be potent in the construction of the first, if they are equivalent in meaning. It was expressly held in Nolan v. Urmston, 17 O., 170, a case cited by counsel for Miss Allison, and referred to with much force in argument, that "a bill of review may be filed within five years from the day on which the decree sought to be reversed was rendered; the time to be counted from the day of the rendition of the decree, and not from the first day of the term." This decision was in construction of a statute providing that a bill of review may be filed "at any time within five years next after rendering such decree," and the Judge delivering the opinion says: "A decree is not in fact rendered, until the day it is pronounced and entered." Idem, p. 171. This old procedure by bill of review was directed against decrees in chancery. It has been held by the Supreme Court to be inconsistent with the code of civil procedure, and not to exist "in respect to an action commenced and prosecuted under the code," (see Corry v. Campbell, 34 O. S. 204); but of course any judicial construction which its language has received is of force so far as applicable to our existing statute. The remedy by bill of review has been in a much modified form embodied in our late statutory revision. (See secs. 6734-6740, Rev. Stat.) Analogous provisions for the reversal or modification of judgments and final orders are found in secs. 6708, 6709 and 6710, Rev. Stat., and as to these, a limitation of time within which the proceedings must be instituted is found in sec. 6723. In this section, as in the law of 1831, construed in the case of Nolan v. Urmston, supra, and as in the modified proceeding for bills of review in our present system (sec. 6740, Rev. Stat.), the limitation period begins by the express requirements of the several statutes, with the "rendition" of the judgment, order or decree, or the "making" of the order. Construing another statute containing the same phrase (S. & C.. p. 1106) the Supreme Court say that the time begins to run "not from the first day of the term at which the judgment sought to be reversed was rendered, but from the day on which it was actually rendered." West v. Meddock et al., 16 O. S., 418. The use of the words "actually rendered," by Judge Brinkerhoff, who spoke for the court, implies a supposition that there might be a constructive rendering which, by some legal rule, would start the limitation law in motion, at a date prior to the actual rendering or pronouncing of 28 OHIO DECISIONS. Huron Common Pleas Court. Vol. the judgment. And clearly such must have been the contention in the case, notwithstanding the phraseology of the statute. This leads me to a consideration of that legal fiction which, for many years before the adoption of our system of civil procedure, treated the term of a court as consisting of but one day, the day of its opening, and judgments rendered during the term as bearing date on that day. No intelligent examination of the question of legislative intent which has been submitted to me, can ignore that fiction. The origin of the idea is perhaps not very important. Whether the rule was adopted because of the original actual shortness of the terms; or because of the other rule early established, that courts have control of their own dockets and journals for purposes of amendment or reversal during the term; or because it was deemed inequitable that one creditor should succeed in obtaining a prior judgment simply because he was able to bring his case first to hearing, while other actions were pending against his debtor; or whether it was to forestall fraudulent transfers by the debtor himself, it will not be profitable just now to inquire. It is enough, if in contemplation of law, the judgment bore date as of the first day of the term, whatever the reason for the fiction. Such fictions are not unfamiliar to lawyers. Our Civil Code expressly abolished all fictions in pleadings (sec. 5058, Rev. Stat.), but the one under consideration does not pertain to a pleading, and its existence has been recognized in one form or another by courts and lawyers since the adoption of the Code as before. Doubtless, there is a general tendency to abandon fictions for truths, forms for realities, as the administration of law becomes more just and less technical, but any interpretation of the phraseology of a statute must take cognizance of the use of such phraseology familiar to the lawmakers at the time of the enactment. Our lien statute (sec. 5375. Rev. Stat.), and our dormancy statute (sec. 5380, Rev. Stat.), are an evolution from some very ancient laws. A judicial tribunal which makes no inquiries and utters no command would be a worthless institution. There have never been such. As long as there have been courts, there have been judgments, and not, unnaturally, questions arose at an early day as to how, and how far, judicial determinations should bind the property of judgment debtors. Very anciently the judgment lien was adopted. (See Freeman on Judgments, sec. 339), and as a corollary to the establishing of the lien itself was the fixing of its date. This was by no means a settled matter, until it became so by legislation in the several states. The frequent conflicting claims to the debtor's property among judgment creditors and other lienholders and purchasers made the date when the lien attached a more important matter than the date of the judgment itself. The judgment was between the plaintiff and his debtor. It affected them only, and, except as a matter of convenience, its precise date was not important. Not so as to the attaching of the lien, for here other interests were involved, and recognizing the apparent inequity of dating back the lien of a judgment so as to give it priority over deeds and mortgages executed before its actual rendition, but after the first day of the term, many of the states, I believe most of them, have not followed the example of Ohio, in attaching the lien as of the first day of the term. Why, then, in Ohio, this apparent inequity? Why adopt for liens the doctrine of relation which has been defined by the Supreme Court of the United States as "that principle by which an act done at one time is |