7. Mortgages. (a) The nature of mortgages has been already explained. We have seen that their present legal character is derived from the doctrines established by the court of chancery; and that the most efficient remedies both for mortgagor and mortgagee are in chancery. 1. If the debt be not paid at maturity, the mortgagee may file his bill of foreclosure, setting forth his claim, and making the mortgagor and all persons interested parties; and may thus procure a sale of the land for the payment of his debt, according to its priority. The decree should be so drawn. as to give the mortgagor a short time within which to prevent a sale by payment. The sale may be made by the sheriff or master, as the court may direct, and the proceedings are the same as in sales on execution. 2. If the mortgagee have obtained possession of the land in any other way than by foreclosure, the mortgagor may file his bill to redeem the land, by paying the debt and interest; and the court will decree accordingly. The limitation in both cases is the same as in ejectment; namely, twenty-one years. It may be well to remark that the original pretext for chancery interference with respect to mortgagees, was to prevent a penalty or forfeiture, by substituting a fair compensation. Indeed, equity abhors penalties and forfeitures under all circumstances, and, as a general rule, will always interfere to prevent them, in cases admitting of a conscientious adjustment. (b)

8. Dower. (c) Where a widow wishes to obtain an assignment of her dower, which has been before described, our statute requires her to proceed by bill in chancery; and thus virtually does away with proceedings at law. The bill sets forth the grounds of her right, describing the tracts of which she claims to be endowed; and the heirs or assigns of her husband are made defendants. If there be any mortgagees or other incumbrancers, they may set up their rights by a cross-bill. If the lands lie in several counties, the bill must be filed in that county where the principal messuage of her husband was; and the court may, at their discretion, order the whole dower to be assigned, not only in one county, but in one tract where it will not prejudice the rights of others. If the land cannot be conveniently divided, dower may be assigned in a special manner, as one-third of the rents or income, The decree directs the sheriff to cause the dower to be set off by three disinterested men under oath; and if the court approve of their proceedings, a writ of seisin is directed to issue, by virtue of which the sheriff delivers possession to her. The great advantage of proceeding in chancery to obtain dower is, that this court can take into consideration all the circumstances of the case, and do complete justice between all the parties.

(a) See ante, lec. 25; 2 Story, Eq. ch. 29, 34. The Code embraces proceedings in foreclosure and redemption; and in foreclosure, requires a sale in all cases. § 374. See act of March 29, 1859. Formerly this was not so. Anonymous, 1 Ohio, 235; Higgins v. West, 5 id. 554.

(b) See 2 Story on Equity, ch. 34.

(c) See ante, lec. 28; 1 Story on Equity, ch. 12.

9. Partition. (a) Where tenants in common wish to obtain a partition of the common property, the statute requires the application to be by petition, which is filed in the court of common pleas, if all the land be in one county; but if in several counties, then in either of the courts of either of the counties. The bill sets forth the nature of the petitioner's title, describes the tracts of which partition is claimed, and specifies the name and residence of each of the co-tenants, if known. Also, if there be a widow entitled to dower which is not yet assigned, she must be made a party. If any of the co-tenants be minors, their guardians are empowered to act for them. Thus far the course is the same as in other chancery proceedings; but at this point the statute makes a difference; for no subpoena issues. Their petitioner has his option either to give personal notice in writing of the pendency of the petition, or to advertise the same in some newspaper of general circulation, at least forty days before the commencement of the next term ; and upon proof of due notice, if no objection be made by the other parties in interest, the court will order partition to be made and returned at the next term, and a writ will issue accordingly. This writ commands the sheriff to cause the partition to be made by three disinterested freeholders of the vicinity, named by the court, and acting under oath. They are to take into view the improvements, situation, and qualities of the different tracts, if there be more than one; and if they be not all owned by the same proprietors and in the same proportion, a proper portion of each tract must be set off to each of the co-tenants. It may happen, however, that the land cannot be divided without great injury to its value; and in this case, the three freeholders return an appraisement of its value; and if the court approve of the return, and any one or more of the co-tenants elect to take the whole at that appraisement, and pay the rest their proportions, the court will order the sheriff to execute conveyances accordingly; but if no such election be made, the order will order a sale at public auction, to be conducted in the same manner as sales on

(a) As to partition in chancery, see 1 Story, Eq. ch. 14. The Code does not affect this proceeding. § 568. Where a partition was reported to the court, but never confirmed, all the heirs, of whom some were minors, took possession and held for seventeen years, equity will not order a new partition unless great unfairness be shown. Piatt v. Hubbell, 5 Ohio, 243. Where the facts conferring jurisdiction are not shown by the record, if a long time has elapsed, they will be presumed. Glover v. Ruffin, 6 Ohio, 255. The act of 1820 did not require a confirmation, and a purchaser's title will not fail because the proceeds of sale were not brought into court. Goudy v. Shank, 8 Ohio, 415. A partition of several tracts, where the petitioner is not a tenant in common as to all, is erroneous. Smith v. Pratt, 13 Ohio, 548; Harman r. Kelly, 14 id. 502. The husband should be a party to a partition of the wife's land. Pillsbury v. Dugan, 9 Ohio, 117. The title of the purchaser is not affected by mere irregularities. Foster v. Dugan, 8 Ohio, 87. An appraiser may purchase in the absence of actual fraud. Bohart v. Atkinson, 14 Ohio, 228. It is not necessary to divide each tract. Smith v. Barber, 7 Ohio, pt. 2, 118. Where one tenant in common has conveyed his undivided share in several tracts, the other must bring separate suit against each purchaser. Prentiss's case, 7 Ohio, pt. 2, 129. As to the effects of partition, see Tabler v. Wiseman, 2 Ohio State, 207; Williams v. Van Tuyl, id. 336.

execution. Upon return of sale and approval by the court, they will order the sheriff to execute the deed, and distribute the proceeds among the co-tenants. (a) The sale, however, cannot be made for less than two-thirds of the appraisement; unless, after being once offered, the court shall direct otherwise; and if there be a widow entitled to dower, it must be first provided for by the freeholders; who may either include it in one or more of the shares, making them larger in proportion; or may simply divide what remains after setting off dower, and leave that to be divided at a future time. It hardly need be observed, that if the co-tenants can agree among themselves, they may execute deeds of partition, without resorting to the court. In like manner, after the petition is filed, the co-tenants may come into court and agree upon a partition, which, being recorded, will be as valid as any other. As the partition is presumed to be for the benefit of all the co-tenants, the costs are usually shared among them; but this rests in the discretion of the court. The order may be that only the share of the petitioner shall be set off, if the rest do not desire partition; in which case he would, of course, pay all the costs. If there be any thing to regret in these provisions, it is, that proceedings in partition are not made in all respects chancery proceedings; for questions may now arise, which will occasion much doubt and difficulty, as not coming within the known usages of chancery, and not specifically provided for by statute.

10. Execution of real Contracts. Where one or more persons have entered into a contract for the sale and conveyance of land, and one of them dies before executing the conveyance, our statute authorizes the executor or administrator of the deceased owner, if there be but one owner, or the survivors, if there be more than one owner, to file a petition in the court of common pleas, praying for an order for the execution of the contract. The petition must name all the persons interested in the contract, and describe the land to be conveyed, with all the circumstances. No subpœna. issues; but notice must be personally served on the parties interested, or published three successive weeks in some newspaper of general circulation; and if, on hearing the case, the court are satisfied that the contract ought to be executed, they order the executor, administrator, or survivor, as the case may be, to execute the deed contracted for. This deed must recite the order, and when duly executed, conveys as good a title as could have been conveyed, if death had not intervened. At the same time, the court provide that the proportion of money which would have belonged to the deceased shall be secured to his representatives. The same statute provides, in like manner, for the case where the purchaser dies before the conveyance is executed. His heirs may file their petition and compel a conveyance to them, in the same manner as their ancestor might have done. It would seem as if

(a) Act of April 4, 1859.

this right would have existed without any express provision, on the general doctrines of specific performance to be described hereafter. There is another statute which authorizes the guardians of idiots and lunatics, by application to the court of common pleas, to execute the real contracts of such idiots or lunatics, by making the proper conveyances. The importance of these provisions for cases unprovided for at law is at once perceived. But here, again, we have such a departure from the regular course of chancery proceedings, as is likely to create uncertainty; and for which there is no apparent reason.

11. Applications to sell Land. When there is not sufficient personal property to pay the debts of a deceased person; or when it is necessary for the support, or will be for the advantage, of a minor that his real estate shall be sold, our statute authorizes the executor, administrator, or guardian, as the case may be, to file his petition in the court of common pleas, setting forth the facts of the case, and praying for an order of sale. But the course of proceeding in such cases has been sufficiently described before, when treating of executors, administrators, and guardians, and their conveyances. You will again observe, that these applications are not strictly chancery proceedings, although, like them, commenced by petition.

12. Divorce. (a) When a husband or wife wishes to be divorced for one of the causes before enumerated, our statute provides that the application shall be by petition, filed in the supreme court, setting forth the particular cause. It also declares that proceedings for divorce shall be "as in chancery," where the contrary is not specified. We have seen that the proceedings under the three preceding heads, though they commence by petition, as in chancery, and are in other respects more analogous to chancery proceedings than to any other, are nevertheless peculiar to those subjects; and the same was true of divorce, until the act of 18:4 declared that it should be a chancery proceeding. The petition must distinctly set forth the cause of application. If the adverse party reside in the State, a summons and copy of the petition must be personally served at least six weeks before the term. If out of the State, there is an option to make personal service, or give two months' notice by advertisement. On the hearing, the confession of neither party can be received as evidence, for fear of collusion. The facts must be proved by witnesses testifying orally in court, if their attendance can be procured; otherwise, their depositions may be taken. The marriage itself must be first proved; but evidence of cohabitation as reputed man and wife will be sufficient for this

(a) See Page on Divorce; Bishop on Marriage and Divorce. As to allowance, pendente lite, see D'Arusmont's case, 8 West. Law. Jour. 538. Proceedings in divorce are not affected by the Code. For points of practice, see Lattier v. Lattier, 5 Ohio, 538; Tappan v. Tappan, 6 Ohio State, 64. A decree from the bonds of matrimony, although sustained by fraud and false testimony, cannot be set aside on an original bill filed at a subsequent term. Parish v. Parish, 9 Ohio State, 534. See on the subject of divorce generally, ante, § 105.

purpose. If there be good reason, the court will make an order for the support of the wife during the pendency of the petition; and in the final decree, the support of the wife and the custody of the children are permanently provided for.

13. Perpetuation of Testimony. (a) Where no suit is pending, but it is apprehended that litigation may arise, and that testimony now accessible may then be lost, our statute authorizes the filing of a bill to perpetuate such testimony. The bill must specially describe the subject-matter to which the testimony relates, and name all the parties interested therein, if known; if not, they must be described as well as the case admits of. They are brought before the court as in other chancery proceedings. The plaintiff then files the names of the witnesses, and the interrogatories to be put to each; and the defendant, or if he has not had actual notice, some attorney appointed by the court and compensated by the plaintiff, files cross-interrogatories. These are forwarded to the person authorized to take the deposition, who must either be a master commissioner of this State, or some person specially authorized by a dedimus potestatem. The witnesses are to answer no

other questions than those thus filed. If the court are satisfied that the depositions have been properly taken, they order them. to be made part of the record in the cause; and thereafter, the originals or certified copies may be used in any suit in law or chancery, between the same parties or privies, touching the same subject-matter; provided the original witnesses cannot be had. It is further provided, that if, after filing the bill, it be made to appear that any witness is old, infirm, or about to leave the State, the court may forthwith, before the appearance of the defendant, order his deposition to be taken de bene esse; that is, provisionally, to be used if need be. This mode of perpetuating testimony is a chancery proceeding of ancient usage: but it is seldom resorted to in this State, because our statutes provide other methods attended with less trouble, which I will now describe. 1. By the act providing a mode of perpetuating testimony, two associate judges are authorized to take the deposition of any person residing within their county, "to perpetuate the remembrance of any fact, matter, or thing." They are to cause all persons interested in the subject-matter to be "duly notified," that they may attend and cross-examine. The questions and answers must be reduced to writing. Within sixty days, the deposition, if it relate to land, must be recorded in the recorder's office; if to other property, in the clerk's office: and thereafter, the original or a certified copy may be used in any cause to which it may relate," if the witness cannot be had. If there be no two associate judges disinterested, two justices of the peace may officiate. If the opposite party was not present at the taking, the deposition is open to all legal objections. 2. By the act enabling landholders to perpetuate tes

(a) See 2 Story on Equity, ch. 41. The provisions of the Code are not substantially different. § 363-9.