suit in chancery, or after the decree. But what is the effect of the reversal of that decree.

It is urged that the decree, having the same effect as a deed, being, in fact, an operative conveyance, its effect must be the same, as if a deed had actually been made under the decree. In such case, it is maintained, that a reversal of the decree would not divest the title. Without deciding what would be the effect of a deed, in such a case, as between the parties to suit themselves, we are fully prepared to say, that as between the parties, a reversal of the decree, which confers the title, actually divests it, and re-invests it in the person where it rest. ed before the decree was made.

When the decree of reversal is pronounced, the parties concerned are all before the Court. The title vested by the decree is declared no longer to exist, and it would seem perfectly competent for the court at once to do justice be. tween them. Why should the successful party be driven to a new bill to revest himself with the title? Surely the great objects of justice are full as well attained by considering the reversal a re-vestment of title, and, in that respect, placing the parties as they stood before the original decree was pronounced. It is the most expeditious, the cheapest, and therefore, as we think, the most proper remedy. If the decree can be reversed, and the bill dismissed, upon the opposite doctrine, the complainant thus turned out of Court would nevertheless have obtained the whole object of his bill. And the defendant, after a final adjudication, in his favor, would have to prosecute a new bill to obtain relief against the effects of a decree in a suit decided in his favor. This would be a strange anomaly in judicial proceedings, and one which ought not to be introduced, without some strong necessity.

Again, if on the reversal, the Court retain the cause, and on final hearing, a second time find the complainant entitled to a decree of the land, what form of decree is to be made? It cannot be that the defendant convey, for the doc. trine insisted upon, assumes that he has no title in him. It must be a decree confirming a title in the defendant, which he obtained under the reversed decree. Upon what principle of reason, or enactment of legislation, would this kind of decree stand?

But the most difficult and important point in this case, is as to the effect the reversal upon the rights of third persons, legitimately and innocently injured. After the time limited in the decree itself had transpired, and the decree be. came an absolute title, the party thus invested with title and in possession of the land, sold and conveyed to a third person, who stands before the Court as an innocent purchaser for a valuable consideration, without notice. Can his rights be divested by a reversal of the decree upon which his title was original. ly founded? We are of opinion that they cannot be so divested.

When James Loyd conveyed to Abraham Boyd, he had a complete title, which it was competent for him to transmit by conveyance, in the usual mode. In making this conveyance, he divisted himself of title, and invested it in Abraham Boyd, the defendant, who reposed himself upon the solemn and final de. cree of a court of competent jurisdiction, then in full force and of unquestionable validity. By this act of conveyance, made in good faith, James Boyd put an end to his power over the land. He could not resume his interest in it, without the consent of his grantee, and no decree subsequently made, in the suit, or in

any new suit growing out of it against James Boyd, could affect an interest which he had not, in the subject. This consequence, upon the premises here assumed, seems to be conceded by the counsel for the plaintiff. But he argues that the conveyance cannot be treated as one mide in good faith, because, as he insists it was made pendente lite. If this position be correct, the result con. tended for necessarily follows. For a conveyance of a subject in litigation, made pending the litigation, is universally treated as made in bad faith, and as universally held not to change the rights of any of the parties.

It is argued that the writ of error was sued out, and bond given upon it, be. fore the making of the conveyance, and that consequently the suit was pending. On the other hand it is acknowledged that no citation had been served on the defendant in error, and there is no pretence that either the grantor or grantee knew that the writ of error was pending. We are of opinion, that, until the service of the citation, a writ of error is not to be considered as pending so as to affect strangers as a lis pendens. This, we think, is not only in accord. ance with good sense and fair dealing, but is also according to the best au. thority.

It is contended that a writ of error is but the continuance of the original suit, or like a bill of revivor, or an appeal, reinstates the suit, and refers all parties and things involved to its first commencement. We do not concede, that such, in all cases, would be the consequence of a bill of revivor or of an appeal. But in this case, we think the analogy does not hold. In the obvious nature and character of the proceeding, a writ of error is a new and original suit. Original process issues in it, and must be served to bring the adverse party into Court. The relative character of the parties is changed: new pleadings are made up, and a final judgment upon it, though it may operate upon the original cause, is nevertheless a termination of the new suit or process in We do not meddle with the nice distinctions, by which a writ of error has been treated as a defensive proceeding, and a continuance of the cause in which the party alleged he had been prejudiced, by an erroneous judgment. Though this proposition has been urged, arguendo, in the most respectable tri. bunal of our country, we are not apprised of any case where it is made a ground of decision. We adhere to the doctrine that the writ of error is a new suit, and can only affect parties or strangers from the service of the citation. The judgment must therefore be for the defendant.

error.

HEIRS OF ST. CLAIR, ET AL, v. SMITH, ET AL.

It is error on a bill of revivor, to decree against infant defendants, until a guardian ad litem, be appointed, accept the appointment and either appear or be served with process.

When the bill and answer set up matter of account as a foundation of a trust, it is erroneous to decree for the complainant without a full account taken.

It is error to direct infants to convey with special warranty.

Upon a bill to set up a trust in real estate, part sold and part unsold, and for an account of the proceeds, if a sum of money be fouud due to the complainant, it is error to assign him land in severalty, in payment.

This cause was adjourned for decision here, from the county of Butler. It was a bill of review prosecuted to reverse a decree obtained against the com

plainants by the defendants, in the court of Common Pleas of Butler county. The bill of review was filed in the Common Pleas, and certified to the Supreme Court for decision, in consequence of the incompetency of the Court of Commoa Pleas to try it, two judges of that Court being interested in the cause.

The original bill was filed by James Smith against Arthur St. Clair, in his lifetime. It charged that, in the year 1801, Smith and St. Clair purchased sec. 16, containing 640 acres, and fractions 21, 27, 27, containing 889 acres, all lying contigious, in the township and range east of the meridian, in Butler county, in partnership, at two dollars per acre. The purchase was made of the government, upon the usual terms of paying one fifth in hand, and the remainder in three payments of two, three, and four years. That Smith paid one half of the first instalments, and St. Ciair the other half. That improvements were made on the lands, and the expense of both, especially in erecting a saw mill, and preparing a race and dam for the erection of a grist and saw mill, which by a freshet in the river were swept away. It is also charged that in 1801, Smith settled on and improved the fraction 21, as for a permanent residence, and made permanent improvements on it. The bill further alleges, that the payments not being made according to the requisitions of the law, it was thought best to forfeit the lands, and re-enter them; and that an agreement was made that they should be forfeited and entered by St. Clair, in his own name for the use of both. That, in pursuance of this agreement, the forfeiture took place, and St. Clair entered the lands in his own name, in the year 1807, made the payments and obtained the patents. That in 1812, St. Clair sold one half the entire section for 2000 dollars, and in 1816 sold the other half for 1800 dollars, and a part of fraction 21, for 2116 dollars; all which money he received. The bill further charges, that when St. Clair advanced the purchase money to the government, he was indebted to Smith upwards of 2000 dollars, for advances in the erection of the mill works swept away in 1801, and that St. Clair, at various times, after the last entry in the lands, recognized Smith's joint interest, in conversation with him. All the principal allegations of the bill were repeated in special interrogatorics, and it concluded with a prayer that St. Clair convey to Smith an interest in the lands unsold, and for general relief.

The answer admitted the original purchase in partnership, and the failure to complete the payment. It denied all the other allegations of the bill; claimed that the complainant was largely indebted to the respondent, and exhibited an account; and put interrogatorics to be answered by the complainant. These interrogatorics were never answered, and the complainant pleaded the statute of limitations, to the items of account submitted by the respondent.

The bill was filed in 1817. After answer filed, and depositions in part taken, St. Clair died, and Smith filed a bill of revivor, making St. Clair's heirs, who were all infants, and his administrator parties. David Wade was appointed guardian ad litem for the heirs. He never appeared or answered. There was nothing in the record to show that he was notified of, or accepted the appoint. ment. Nor did it appear that process of any kind had been served upon him, on the bill of revivor. There was no account taken between, nor any partition decreed of the land. But a final decree was made, assigning the complainant a specified part of the land unsold, estimated in the decree at 2829 dollars, and

directing the administrators and heirs to pay to him 481 dollars 75 cents;-and after this decree, the land assigned to Smith had been purchased by the defend ant Miliken. The heirs were also decreed to convey with covenants of war

ranty.

Many errors were assigned as grounds of reversal: but the report will be confined to those specially noticed by the Court, as the ground on which they proceeded.

1. The guardian ad litem, appointed for the minors, was not cited to appear, and did not appear and answer or make defence.

2. The Court proceeded to make a decree, without an account being taken between the parties.

3. The decree assigns the complainants a specific portion of the lands. claimed to be held in common, to be held by the complainant in severalty, without the right being ascertained and partition made according to law.

4. The heirs were decreed to convey with covenants of warranty.

Fox, for the complainants in the bill of review.

T. Corwin and Collet, contra.

By the COURT.

ance.

The object of filing a bill of revivor is to bring the parties, to be affected by the decree, before the Court. If these parties be of full age it is indispensable that they be served with a process to appear, or voluntarily enter their appear Without one or the other no proceedings can be regularly had against them. If the defendants in the bill of revivor be minors, a guardian ad litem must be appointed for them, who must accept the appointment, and who must be brought before the Court, as in other cases, by his voluntary act, or by process. When the defendants in a bill of revivor appear, they may abide by the answer of the deceased defendant, or answer for themselves. If the deceased defendant have not answered, the new defendants must answer, or a decree pro confesso be taken against them, before a final decree can be pronounced. This is the only correct course of practice, as is fully established by the authorities adduced on the part of the complainant, which are in conformity to the practice in our own courts.

In the case before us, the defendants in the bill of revivor were all minors but the administrator. For these minors a guardian ad litem was appointed. But there is nothing in the record to show that he ever accepted the appointment, or appeared or was notified to appear. No act seems to have been done by him. No answer is filed, no election to abide by the answer of the ancestor is made, no rule or order taken to obtain an appearance or answer. The final decree against the heirs is thus made against parties not in Court, and who, upon no principle of justice ought to be precluded by that decree. The fact that the ancestor had answered, does not vary the case. If that answer concluded them without their being heard, they must nevertheless be in Court to be bound by the decree. There is therefore error in this particular in the decree, for which it must be reversed.

In both the bill and answer, various matters of account were introduced, and

claimed and contested between the parties. Smith claimed, that St. Clair was indebted to him for monies advanced, for partnership purposes, in erecting millworks upon the lands in question, And it was in part, at least, upon this in. debtedness of St. Clair, that the bill sought to raise a trust for Smith, in St. Clair s last purchase of the land. St. Clair, in his answer, denied that he owed Smith any thing, and insisted, on the contrary, that Smith was largely his debt. or. This question of indebtedness, ought to have been settled before a decree was pronounced, charging St. Clair as a debtor. For conceding that the trust was established, St Clair could not be required to pay to Smith any part of the profits arising on the sales of the lands, if Smith were indebted to him, as claim ed, upon other accounts. Until an account was taken of all the money transactions set forth in the bill and answer, no correct decree could probably be made. It could not be material, whether this account was taken by a mas. ter, or by the Court themselves. But it does not appear to have been taken at all, and the data upon which the counsel for the present defendants place the decree, admits, that all transactions were disregarded, except such as related to the last purchase, and to the sales of the land. This was erroneous, and supplies another ground for reversing the decree.

Upon the hypothesis assumed in the bill, St. Clair was debtor to the complain. ant, for one half of the profits received upon the lands sold, and was trustee for him, for one undivided half of the lands unsold. There is nothing in this state of the case, that would give to the complainant a lien for the moneys due, upon the land unsold. In this respect, both as against St. Clair and his creditors, the debt would stand upon the same foundation with other debts, and a decree should have been made against the administrator, only for the amount. And against the heirs, partition should have been decreed, as in the ordinary case of a tenancy in common, originating in a trust and decreed in equity. The decree, in this case, setting apart a portion of the land to the complainant, in severalty, cannot be supported on any known or safe principles.

The direction that the infants shall convey with warranty, is also erroneous. Infants are not capable in law, of making covenants to bind themselves. A Court of Equity cannot decree them to do it. The decree is not the less erroneous, that it has operated no prejudice.

For these reasons, the decree is reversed, and the cause is retained, and remanded to the Supreme Court of Butler county, for further proceedings.

WAYMIRE v. STALEY, ET AL.

Priority of lien.

This was orginally an application to the Court of Common Pleas of Montgomery county, to distribute moneys made upon execution, by the sheriff, amongst different claimants. It was brought before this Court by certiorari, and adjourned here for decision, from the Supreme Court sitting in Montgomery county. The case was this:

At February term, 1823, Andrew Staley obtained judgment against Daniel Yount, for five hundred and five dollars fifty-four cents, debt and costs. Fi.fa,