
27 U.S. 492 (____)
2 Pet. 492
THE BANK OF HAMILTON, PLAINTIFF IN ERROR
vs.
THE LESSEE OF AMBROSE DUDLEY, JUN., DEFENDANT.
Supreme Court of United States.

*496 The case was argued for the plaintiff in error by Mr Benham and Mr Baldwin; and by Mr Garrard for the defendant.
*520 Mr Chief Justice MARSHALL delivered the opinion of the Court.
This cause was fully argued at the last term on the validity of the deed made by the administrators; and several acts, which were supposed to illustrate that question to which it is unnecessary now to refer, were cited and relied on. As it was a question of great interest, on which many titles depended, which was to be decided entirely by the statutes of Ohio; and as the Court was informed that the very case was depending before the highest tribunal of the state, the case was held under advisement. The cause depending before the state court, which was an ejectment for other land sold by the same administrators under the same orders of the court of common pleas, has been since decided, and the supreme court of the state has determined:
1. That there was no law in the territory prior to the act of 1795, authorizing administrators to sell the lands and tenements of an intestate.
*521 2. That this law was repealed, and ceased to have effect from and after the 1st day of June 1805.
3. That the order of the court of common pleas of May term 1804, directing the administrators of Israel Ludlow to sell a part of the real estate of said Ludlow for the payment of his debts, did not embrace the premises in question.
4. That the parol testimony offered in evidence to prove an order of sale at the May term 1805, was incompetent.
5. That the order of the said court at the August term 1805, was coram non judice and void; and that the lessors of the plaintiffs could not be divested of their title, in consequence of any act done in pursuance of that order.
At this term the cause has been again argued, and the counsel for the plaintiffs in error have made several points which they suppose to be still open.
They contend, that the repeated declaration of this Court, that it will conform to the construction of the statutes of a state made by its own tribunals, does not apply to the decision respecting the order made in August 1805. They insist that the power of the court to make this entry as of the May term preceding, depends upon the common law, not on the statutes of Ohio, and that the question is still open for discussion.
Supposing it to be open, they maintain that the omission to enter the order in May, when it was made, was a clerical misprision, which the court might correct in August, and enter the order as of May term. It has, they contend, the the same effect as if it had been actually entered in May; and, allowing this, the subsequent repeal of the law before the sale was made, could not affect the power to sell which was given by the order, and therefore the sale is valid.
To sustain this argument, all the propositions on which it rests must be true. The decision of the state tribunal must be of a character which this Court will consider, undoubtedly, with great respect, but not as conclusive authority. The court of common pleas must have had the power in August, after the repeal of the law under which the order was made, to enter it as of May, and the administrators must have had the power to sell in virtue of the order, after the law by authority of which it was made, had been repealed. If the *522 plaintiffs in error have failed in sustaining any one of these propositions, the conclusion which has been drawn from them is not supported.
The judges are not united in opinion on these several propositions, but concur in thinking that the conclusion drawn from the whole of them is not sustained. The power of the inferior courts of a state, to make an order at one term, as of another, is of a character so peculiarly local, a proceeding so necessarily dependent on the judgment of the revising tribunal of the state, that a majority considers that judgment as authority, and we are all disposed to conform to it.
But, were this question entirely open, the considerations which appear to have influenced the judgment of the supreme court of Ohio, are certainly entitled to great weight. That a court of record, whose proceedings can be proved by the record alone, should, at a subsequent term, determine that an order was made at a previous term, of which no trace could be found on its records, and that too after the repeal of the law which gave authority to make such an order; is a proceeding of so much delicacy and danger, which is liable to so much abuse; that some of us question the existence of the power.
In the case, as depending before this Court, there is still a stronger objection to the validity of the order of August 1805. Its language does not import that the administrators had applied to the court at the preceding May term, for an extension of the order of May 1804, and that the court had granted their application, and made the order, which the clerk had omitted to enter, and that therefore the order is now made, with a direction that it should be entered as of May. This is not its language. It makes no allusion to any proceeding in May. It purports to have been made on an original application by the administrators, in August, for an extension of the order of May 1804. On this original application, the court allows the administrators to sell the house and lots in Cincinnati, and adds, "this entry to be considered as of May term 1805." The entry, on its face, does not import to be the correction of the record, by placing on it an order which had in fact been made in the preceding May, *523 and which the clerk had omitted to enter; but to be an original proceeding in August, to which the court by its own authority gives a retrospective operation. If any explanatory testimony could have been received in the circuit court, none was offered. That court was required to infer from the words, "this entry to be considered as of May term 1805," that it was in fact made at that term, and that the clerk had totally omitted it. The certainty which is necessary in judicial records, and the principle that they prove themselves, forbade the court to draw this inference. The law being then repealed, the order was certainly, coram non judice.
It is also the opinion of one of the judges, that had the order even been made in May term, the repeal of the law before the sale, terminated the power to sell.
The counsel for the plaintiffs in error have also contended, that the interest of the administrators in the real estate, as trustees for the creditors, was a vested interest, which the repeal of the law could not divest; and that they might proceed to sell under the sanction of an order made even after the law was repealed.
This is a point on which we cannot doubt. The lands of an intestate descend not to the administrators, but to the heir. They vest in him, liable, it is true, to the debts of his ancestor, and subject to be sold for those debts. The administrator has no estate in the land, but a power to sell under the authority of the court of common pleas. This is not an independent power, to be exercised at discretion, when the exigency in his opinion may require it; but is conferred by the court in a state of things prescribed by the law. The order of the court is a pre-requisite, indispensable to the very existence of the power; and if the law which authorised the court to make the order be repealed, the power to sell can never come into existence. The repeal of such a law divests no vested estate, but is the exercise of a legislative power which every legislature possesses. The mode of subjecting the property of a debtor to the demands of a creditor, must always depend on the wisdom of the legislature.
It is also contended that the jurisdiction of the court of *524 common pleas, in testamentary matters, is established by the constitution, and that the exclusive power of the state courts to construe legislative acts does not extend to the paramount law, so as to enable them to give efficacy to an act which is contrary to the constitution.
We cannot admit this distinction. The judicial department of every government is the rightful expositor of its laws; and emphatically of its supreme law. If in a case depending before any court, a legislative act shall conflict with the constitution, it is admitted that the court must exercise its judgment on both, and that the constitution must control the act. The court must determine whether a repugnancy does or does not exist; and in making this determination, must construe both instruments. That its construction of the one is authority, while its construction of the other is to be disregarded, is a proposition for which this Court can perceive no reason.
But, had the question never been decided in Ohio, this Court can perceive no sufficient ground for declaring, that the legislature of the state might not repeal the law by which the court of common pleas was authorized to direct, in a summary way, the sale of the lands of an intestate. "Jurisdiction of all probate and testamentary matters," may be completely exercised, without possessing the power to order the sale of the lands of an intestate. Such jurisdiction does not appear to us to be identical with that power, or to comprehend it. The constitution did not mean and could not mean, to deprive the legislature of the power of exercising its wisdom on a subject so vitally interesting to the people; nor do its words convey such an intent. Were it even true, which we cannot admit, that the constitution established the jurisdiction of the court of common pleas in the case, still the legislature might prescribe the rule by which that jurisdiction should be exercised.
We are satisfied that there was no error in the instruction given by the circuit court to the jury.
The plaintiffs in error contend that the court erred in overruling the motion to appoint commissioners to value the improvements in pursuance of the occupant law of Ohio; *525 and in rendering judgment without conforming to that law. The first section of the act provides that "an occupying claimant," circumstanced as was the plaintiff in error, "shall not be evicted or turned out of possession, until he or she shall be fully paid the value of all lasting and valuable improvements made by such occupying claimant," "previous to receiving actual notice by the commencement of suit;" &c. "unless such occupying claimant shall refuse to pay the person so setting up and proving an adverse and better title, the value of the land without the improvements made thereon," &c.
The 2d section proceeds to direct the court to appoint commissioners to make the valuation, which had been prescribed by the preceding section.
The counsel for the defendant in error insists that this law is repugnant to the 10th section of the first article of the constitution of the United States; and to the ordinance of 1787 for the government of the north western territory.
This Court does not think that these questions properly arise in the present actual state of this controversy. The 7th amendment to the constitution of the United States declares that "in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." This is a suit at common law, and the value in controversy exceeds twenty dollars. The controversy is not confined to the question of title. The compensation for improvements is an important part of it, and if that is to be determined at common law, it must be submitted to a jury.
It has been said that the occupant law of Ohio, must, in conformity with the 34th section of the judicial act, be regarded as a rule of decision in the courts of the United States.
The laws of the states, and the occupant law, like others, would be so regarded independent of that special enactment; but the exception contained in that section must be regarded likewise. The law, so far as it consists with the constitution of the United States and of the states of Ohio, is a rule of property, and of course a rule of decision in the *526 courts of the United States; but that rule must be applied consistently with their constitution.
Admitting that the legislature of Ohio can give an occupant claimant a right to the value of his improvements, and can authorize him to retain possession of the land he has improved, until he shall have received that value; and assuming that they may also annex conditions to the change of possession, which, so far as they are constitutional, must be respected in all courts; still that legislature cannot change radically the mode of proceeding prescribed for the courts of the United States; or direct those courts, in a trial at common law, to appoint commissioners for the decision of questions which a court of common law must submit to a jury.
But this inability of the courts of the United States to proceed in the mode prescribed by the statute, does not deprive the occupant of the benefit it intended him. The modes of proceeding which belong to courts of chancery are adapted to the execution of the law; and to the equity side of the court he may apply for relief. Sitting in chancery, it can appoint commissioners to estimate improvements as well as rents and profits, and can enjoin the execution of the judgment at law until its decree shall be complied with. If any part of the act be unconstitutional, the provisions of that part may be disregarded while full effect will be given to such as are not repugnant to the constitution of the United States or of the state or to the ordinance of 1787. The question whether any of its provisions be of this description, will properly arise in the suit brought to carry them into effect.
We think there is no error in the judgment, and it is affirmed with costs.
