87
owner of a vein, lode, or ledge, the top or apex of which lies within the surface lines of his own location, the right to follow that vein downward, outside of the side lines of his location, and into territory whose surface belongs to another. Involved in their claim is the question whether there is such a vein as is provided for in that section; a question as to the right of entrance. as affected by priority of location and the dip of the vein. These questions are presented, and, whatever may be the true answers thereto, it is obvious, from past judicial expressions, that they cannot be considered as mere sham, or pretended, but as real, substantial questions. Hence, as questions arising under the laws of the United States, they present a case cognizable by the court. Mining Co. v. Larimer Co., 8 Fed. Rep. 724; Starin v. New York, 115 U. S. 248, 6 Sup. Ct. Rep. 28. As the defendants are entering within the side lInes of complainant's property, prima facie they are trespassers; and Where the affidavits, upon an application for a prelimin'ary injunction, are conflicting, the rule is to preserve the possession as against such prima facie trespassers by a preliminary injunction, leaving the question of title to the property to be established by a suit at law. Temporary injunction will issue upon the giving of a bond in the sum of $25,000, conditioned according to law.
SWIFT
v.
MEYERS
et al.
((}Z'rcuit Court, D. Oregon. December 24. 1888.)
1.
MORTGAGES""-SUIT TO ENFORCE LIEN-SUMMONS-NoTICE.
A suit to enforce the lien of a mortgage is not one to recover money or damages only, and therefore the notice inserted in the summons must be according to the direction in subdivision 2, § 53, Compo 1887. .
2.
SAME-'-JUDGMENT-OF STATE COURT-COLLNfERAL ATTACK IN FEDERAL COURT.
Thejudgment oia state court may be collaterally questioned or attacked in a natIonal court sitting in the same state, for a want of jurisdiction over the subject-matter or of notice to the defendant, the same as if it was a judgment of a court of another state.
8.
SAME-S1lJRVICE' OF PROCESS-CONSTRUCTIVE SERVICE-PRESUMPTION.
A suit to enforce the lien of a mortgage by the sale of the property is in the nature of a proceeding in rem, and in case the mortgagor or his successor in interest is a non·resident, or not found, so that he cannot be personally served with process, in ,the state, the court may decree a sale of the property on such substituted or constructive service of process on the mortgagor as the legislature may provide; but in such case there is no presumption in favor of the jurisdiction of the court, and. unless the record shows a compliance in all essential particulars with the statute authorizing such service, its decree is null and void. A statute of Oregon (Comp. 1887, § 55) provides that if a defendant in a suit cannot be found. service of the summons mal be made by a copy of the same "to some person of the family. * * at the dwelling-house or usual place of abode of the defendant." In a suit to enforce the lien of a mortgage on property in Linn county, the retnrn of the sheriff showed that the defendant could not be found, and that a copy of the summons was deliv, ered to 8 "member" ofthe family, "at his usual place of abode in said [Linnl
.. SAME.
tpe a by default· for the .sale of We proper:tY'under which tbedefendants claim. Held, that the Service was ·:, 'in"alid,: and .the decree of sale thereon null and void, because the return did . .nQt show that the substituted service of the summons was made at the defendin whatever county it might be, but , . ant's' usual place of abode in'the :, only at his usual place of abode in Linn county. ,I.
"
cs.:
SA.:M::Il::""'REOORD-COLLATERAL
,Semble, that the record of a court cannot be collaterally impeached or contradicted except by a suit iIi equity. brought for the purpose of setting aside a judgment, on the ground that in fact the court never acquired jurisdiction to give the same.
(Syllabitl1 bfJthe Oourt.)
,j
AtLaw. , Action to oheal property· . 'W. 'Scott Beebe, for plaintiff. ..' Aloen H.Tanner and CharlesE. Wolverton, for defendants. ' : ' ,':' 'l;1 ' , ' \
:',':DJ;!:A:DY: This action is, brought by the plaintiff, a citizen of forriilt' against the defendants, citizens of Oregon, to recover 377.77 acres Q(lanq situate in Linn county, Or., exceeding in value $6,000. · ,Tb'" wal;ltried by the cOllrt, the intervention of a jury, upon the amended complaint, answer, and reply thereto, and astipulation as to the facts. From these it appears that on and prior to October 16, 1879, Philip Grigsby was the owner of the premises in question, subject to a mortgage thereon, given to the !>tate . for the management of the school fund, to secure the payment of $4,500, with interest, tofore borrowed. by Grigsby from said commissioners; that on said date a suit theretofore brought by said commissioners against Grigsby to force the lien of said mortgage was pending in the state circuit court for said county, in which a summons had been issued. directed to said Grigsby, requiring him "to appear and answer the complaint" therein within the time specified, and notifying him that if he failed so to appear and allswer "the plaintiff will apply to the court for the relief demanded" in the complaint; that said summons was returned by the ·sheriff of said county with the following certificate or proof of service annexed thereto: "I hereby certify that I have served the annexed summons in Linn county, Oregon, on the 16th day of October, 1879, on the therein named defendant, Philip Grigsby, he not being found, by ing a copy thereof, * * * together with a copy of the complaint, ** * with Mary Backus, a member of the family, over the age of 14 years, at his usual place of abode in said county;" that thereafter said circuit court gave a decree in said case by default in favor of the plaintiffs therein, on which the interest of Grigsby' in the premises was sold on execution, and the proceeds applied on the demand of the tiffs, and in discharge of said lien; that said sale was duly confirmed, and a conveyance of the premises made in pursuance thereof to the purJ.W, Meyers, under whom the defendants claim; and that the plaintiff, on April 26, 1888, received a conveyance from Grigsby of all il) the premises.
\
SWn'T 11. lIui;VERB.
39
The stipulation concludes that, if the "SUlnmons" is valid, and the "return" is sufficient to show due service of the same on Grigsby, the defendants are entitled to judgmllnt in the action, but, if not, the plaintiff is entitled to judgment. It is contended by the plaintiff that the decree of the circuit court of' Linn county, under which the defendants claim, is void and of no effect, because the court had no jurisdiction in the premises. The grounds of this contention are: (1) The summons was invalid, because it did Dot contain a notice that the plaintiff would, if the' defend;. ant failed to answer the complaint. take judgment for a sum specified therein, but only that in such case they would apply to the court fOl'the relief demanded in the complaint; and (2) the return of the sheriff does not show a valid service of the summons, because (a) it appears therefrom that it was "left" with Mary Backus, and not "delivered" to her; (b) it does not appear whether Mary Backus was a member of her own family or Qf the defendant's; and (c) it does not appear that the sum';' mons was served at the "usual place of abode" of the defendgntinihe state, but only "in Linn county." . The statute (Comp. 1887, § 53) provides "that there shall be inserted in the summons, a notice in stibstance as follows: (1) In anyllction fol" the recovery of money or damages only, that the plaintiff will take'judg.. ment for a sum specified therein, if the defendant fail to answel'th'ecom;' plaint; (2) in other actions, that if the defendant fail to answer the com;. plaint, the plaintiff will apply to the court for the relief demanded' therein." . . . By section 55 (Comp. 1887) it is further provided that "the suriUllons shall be served by a copy thereof, together with a copy of the complaint, * * * as follows:" (Here follow five subdivisions, the first four of which relate to the service on corporations and persons under guardianship.) The fifth one provides: "In all other cases to the defendant personally, or, if he be not found, to some person of the ily, above the age of 14 years. at the dwelling-house or usual place' of abode of the defendant." . '.,. These provisions concerning a summons and its service in an actioD at law, are equally applicable to a summons and its se.rvice ina' suit' in equity, to enforce the lien of a mortgage. Compo 1887, § 389. ..' The suit against Grigsby was not, in my judgment, a suit t<Frecover money orily; primarily it was brought to ascertain and enforce a lien on the regl property in question, ,and obtain a judicial sale of the same,' and the application of the proceeds thereof in payment of the debt the mortgage was given to secure·. Cdmp. 1887, § 414. ' .' c' It is true that in case a mortgagor has given a personal obligation for the debt, the law authorizes the 'court to "decree a recovery of theiam<mnt of such debtagliinst"hil1l, as well a8to decree a sale of the property t(!) illltisfy the same. But the decree in personam for the recovery of is tiot the "only" n nor even the pri:qcipal,object ofthe suit. At'lelisHt is merely a conditional decree, and cannot be' enforced until the propetty adjudged to be sold is disposed ofj and then only in
I
40
FEPERAL REPORTER.
ceeds 0,£ such sale are not sufficient to satisfy the decree. Compo 1887: § 417. The notice in the summons was properly given under the second subdivision of section 53; and a copy of the complaint having been served at the snme time, the defendant was fully informed of the nature of the decree that might be taken against him in case he failed to answer. The la81 objection to the validity of the service will be considered first. It does not appear that a copy of the sumnJons was delivered" to some person of the family * * * at the dwelling-house or usual place of abode" of the defendnnt. What does appear is this: A copy of the summons was "left" with "a member of the family over the age of 14 years, at his [the defendant's] usual place of abode in said [Linn] county." A suit to enforce the lien of a mortgage is a local one, and can only be brought in the county where the land lies. Compo 1887, § 387. But the defendant may be served with the summons in any county of the state in which he may be found. Id.§§ 52, 54. There is no presumption that Grigsby was a resident of Linn county because the suit to enforce a lien on real property belonging to him therein was brought there. It could not have been brought elsewhere. For aught that appears he may have resided in any other county in the state. And if "found" anywhere therein, whether commorant or itinerant, he could have been served by delivering to him persol1!llly, a copy of the summons. But if not so "Jound," then he could only be served by the delivery of a copy of the summons "to a person of the family"-the family of which he constituted a part, whether as heaj. or member-at his dwelling-house or usual place ofabode. " It is self-evident that a defendant can have but one unqualified "usual place of abode"in the state at the same time. If he has other places of abode therein, as he may have, they are his unusual places of abode. A defendant may be served perl;'lonally anywhere in the state that he may be "found," but, if served constructively, by the mere delivery of a copy of the summons for him to the person designated by the statute, it must be done at his "usual place of abode" in the state, in whatever county that may be:· And if he has no such place of abode,and cannot be found, he must be served by publication. His usual place of abode in a particular county is not necessarily his usual place of abode in the state. A person may reside eleven months in the year in Multnomah county, and one month. in the year near the beach' in Ulatsop county. He may have a fixed and well-known residence in each county. But can there be any question in which county his usual place of abode is, within the meaning of the statute regulating the service of a summons? Certainly not. It is in Multnomah county. Now, suppose a suit was commenced against this person in Clatsop county, to divest him of some interest in real property therein; the sheriff'might leave a copy of the summons at his residence in Clatsop county with his housekeeper, or with "some per- . son of the family" with whom he always resides when in the county, and then truly return that, the defendant not being found, he had served the summons by leaving a copy thereof with such person "at hi>i usuaJ
SWIFT t7. MEYERS.
41
place of abode.in Clatsop county;" and do this, notwithstanding he and the plaintiff might both well know that the defendant had not been in the county for nearly 11 months, and was then, and had been for years, a permanent resident of Multnomah county, in which was his usual place . of abode in the state. In Brown v. Langlois, 70 Mo. 226, it was held under a similar statute that service of a summons by leaving a copy "at the usual place ofabode " of the delimdant, "when in the city of Cape Girardeau," was invalid; and that a judgment by default thereon was a nullity. In Allen v. Manufacturing Co., 72 Mo. 326, service of process by leaving the same"at the Hardin House, the usual place of abode of the" defendant, '''prior to the time he left the state," was held bad, because it did not show that the writ was left at a place which was the abode of the defendant at the time of service. In Bank\'. Suman, 79 Mo. 527, a service by leaving process at the "last usual place of abode" of the defendant was held invalid,because, nr:m con.sta.t, that his "last" place of ubode was his present one, and the return could have been true, and the defendant "reside in another county or jurisdiction." . In Dawson v. Bank, 3 Ark. 505, and Park8 v. 'Weems, 9 Ark. 439, it was held that service of a summons at the residence of the defendant by delivering a copy to a person present there, whom it did not appear from the return was "a member of the family," is bad, and will not support a judgment by qefault., In Sanborn v. Stickney, 69 Me. 343, it was held that a return on a writ that it was served on the defendant by leaving a copy of the summons for him "at his last and usual place of abode in Kennebec county" did. not show that the summons was left at the defendant's" place of last and usual abode," as by statute required. Upon this service there was a judgment by delQult, and afterwards on this judgment there was an action brought in the flame state, and the invalidity of the service was· relied on as a defense. 'fhe court said : "The point taken in the defense is that· his last and usual place of abode in KemH'bec county' would not be his ·place of last and usual abode' in the state. We concur in that interpretation of the officer's return. * * If< All the officer certified may be true and no service be made. 'rhe officer would not be liable f()r making a false return. But he made an indefinite. equivocal, and insufficient return. It must be certain that a defendant has been legally notified before judgment can properly go against him;" In Ames v. Winsor, 19 Pick. 247, the return was to the effect that the summons had been left for the defendant" at his last and usual place of abode" known to the officer serving it. in the city of Boston. The statute required the SummonS 1'0 be delivered to the party, or left at his "dwelling-house or place of last and usual abode." It was held that the service was insufficient. In Settlemim' v. Sullivan, 97 U.S. 444, it was held that the service a summons under a similar statute (Or. St. 1855, p. 86, § 29) by delivering a copy thereof to the wife of the defendant at the usual place of
, apode, the retum did not show that the defendant could not be , found,' was 'invalid, and the judgment by default taken thereon null and 'void. ' , In the opinion of the court,Mr. Justice FIELD said: "The inability of the officer to find the defEmdant was not a fact to be inferred, but a fact to be affirmatively stated in his return." To the same effect is the ruling in Trullengerv. Todd,Q Or. 39. , In Earlev.McVeigh, U. 503, it was held that where during the absence of a person and his family a, statute authorized the notice of a suitagl:\inst him to be posted upon the front of his "usual place of abode," notice so posted ,seven months after the house had been vacated bY"the defendant and his family, was not posted on his" usual abode," and a judgmentfounded thereon was absolutely void. The court says: ":8y the expression ·the'usualplace,of abode' the law does not mean the last place of ,abode; a party maycbange his place of abode every month in the Year. Instead of that, it is only on the door of his then presentresidence where tbenotice'may be posted, and constitute a compliance with the legal requirement." , In these qll-ses, the question of the validity of the service sO,metimes arose on a q.hect proceeding, and in others collaterally,' buUn, aU alike it waslleld tha,t, the same beingjnsuffi<iient, the court no jurisdiction thereby, and its judgment thereon was null and void. Iunone of them, however, but Earle v. Mc Veigh, was the, record con,carning tqe liervicecontradicted by extraneous evidence; 'nnd in that case the proceeding was a suit in equity to set aside the judgment. In all on the face of the record, that the service was the rest, ,it,was ;inv$lid. my judgment, where it is sought to, contradict the record ,concerning Rllyjurisdictionl:l.l matter" it should only be done 'by a suitin ,on proper allegation and 'proof, in which the gourt, in, granting the reliefprll,yed for, may make such conditions in favor of an innocent purchaser, who invested his money on the faith of a record showing jurisdiction in the court, as may be possible and proper. " I , But a put<;:haser at a sale on, execlltion issued on. judgment or' decree . taken by default, where the record does not show jurisdiction ip. the court ov:er the subject, and notice to the defendant, haa no equity in the prem.is"ea as against the true owner. He is the victim of his own folly or negligence. , After a court has acquired jurisdiction by a proper service of process ..?n the defendant, any error in its proceeding cannot be questioned col, laterally; but until jurisdiction is its judgment mlj,y bequestioned and held for naught in a- collateral as well as a direct Pl'Qceeding. The cited in favor. ,of the sufficiency of the service in question is Healey v. BuNer, 66 WIs. 9,27 N. W. Rep. 822, iIuvhich a similar service of ,a summons was h good. .The return smted that ld the was served on defendant in Clark county at his last and usual {)lace ot abode therem., Th.l;!court said the words "last and" were superlluous,and then arbitrarily construed the return, as it it
SWIFTt'o MEYERS.
43
J,'ead: "Served the summons attlfedefendIHlt's"u$ual place ot'abode,' which place of abode was then in Clark county." . · Admitting the insufficiency of the return,oounsel for the defendants insist that the judgment of the circuit court of Linn county thereon is valid in the courts of this state, and cannot be questioned therein collaterally; and that the judgment of a court of this state, when called in question or attacked in the circuit court of the United States for tbis district, must be regarded as a domestic one. I ca11not assent to either of these propositions. As was said by Mr. Justice FIELD in Galpin v. Page,3 Sawy. 107: "Whilst the courts of the UnitE'd States are not foreign courts in theirrelation to the 8tate courts. they are courts of a different sovereignty, exercising a distinct and independent jurisdiction, and are bound to give to the judgments of the state courts only tbesame faith and credit which the courts of another state are bound to give them." And what faith and credit must be given to the judgment of a state, court in the courts of another state may be seen in ChrUftmas v. Rus8ellt ' 5 Wall. 305, where it is said such a judgment is neither foreign nor domestic, in every sense, in said courts, but it is "'open to inquiry as to the jurisdiction of the court and notice to the defendant;" citing D'Ardyv. Ketchum, 11 How. 165; Webster v. Reid, Id. 437. Elliottv. Peirsol, 1 Pet. 328, was ejectment brought in the circuit court of the United States for Kentucky. The title of the defendants depended on the validity of an order of a county court of thatstate, concerning the privy examinatiollof a feme covert, who was a party to a deed on whiCh. the defendants relied. The court instructed the jury that the of the county court was void for want of jurisdiction over the ·. On error to the supreme court the ruling was affirmed. The court, TRIM,BLE, J., said: "Where a court has jurisdiction, ithas a right to decide every question which occurs in the cause; and, whether its decision be cOl'rect or other wise, its ment, until reversed, is regarded as binding in every other court. Dut if it act without authority. its jUdgments and orders are regarded They are not voidable, but simply void. ... ... ... The jurisdiction of anY" court exercising authority over a subject may be inqUired into in every court' when .the proceedings of the fonner are relied on and brought before the latter by the party claiming the benefit of such proceedings." In Thompson v. Whitman, 18 Wall. 467, the supreme ring to the opinion of the court ill OhrUftmasv. Russell, supra, in which it is said that the judgment of a state court is "open to inquiry as to jurisdiction of the court and notice to the defendant," snid: "In a number of casP..8, in which was questioned the jurisdiction of a court, whether ; of the same or another state, over the general subject-matter in which the. particular case adjudicated was embraced, this court has maintained the . citing particularly Elliott/v. Peirsol, supra. .' same Galpin v. Page, 18 Wall. 350, was a case in which the jurisdiction'Of a state court was questioned in an action in a national court,! sitting' hl' the same state. 3 Sawy. 93. The court haldthnt the presulnpti6ti·
FEDERAL
SWIFT II. MEYERS.
45
Theopinion i'n this case, by Mr. Chief Justice LORD, is a clear and able exposition of the law on the subject of acquiring jurisdiction by substituted or constructive service of process. The case was an action to recover real property, and the defendant claimed ti tIe under a sale on an execution issued on a judgment against the plaintiff's grantor prior to the conveyance to the latter. The property was attached, and an attempt was made to serve a summons on the defendant as a non-resident by publication. The order of publication omitted to direct that a copy of the summons and complaint be mailed to the defendant at his place of residence, nor did it state any reason for such omission, as that such residence was unknown to the plaintiff, and could not with reasonable diligence be ascertained by him. The service was held invalid, arid the judgment void, for the reason that the court never acquired jurisdiction of the person of the defendant; and that in such a proceeding there. is no presumption in favor of the jurisdiction, but the record must show a compliance with fhe statute in every essential pltrticular. And this rule has been applied by the courts of the state to a jUdgment of a national court sitting in this state. In Victor v. Da1ns,ll Or. 447,5 Pac. Rep. 750, a decree of this court was questioned collaterally, and held for naught, on the alleged ground that the proceeding to acquire jurisdiction of an absent defendant ,was invalid, on the authority of Odell v. Campbell, 9 Or. 298. , The suit in which the decree in question was given, may be considered as in personam and in rem. So far as it was sought to enforcp. the lien of the mortgage on the property included therein, it was in the nature of a suit in rem, (Pennoyer v. Neff, supra, 733;) but so far as it was sought to obtain a nioney judgment against it was in personam., As to the proceeding in rem, it was in the power of the state to provide a substituted service of the summons, in case the defendant could not be found, by delivering it to some person of the family, at hjs usual place of ahode or otherwise; but as to the judgment in personam, nothing short of personal service or a voluntary appearance could authorize that. In proceeding to enforce the lien of the mortgage by the sale of the property on a substituted service of the summons, the court was not pro<leeding according to the course of the common law, and there is no presumption in favor of its jurisdiction, or the regularity of the proceedings on which it depends: Odell v. Campbell,9 Gr. 298. In conclusion, it does not appear from the record that Linn, county was Grigsby's "usual place of abode" in the state at the date of the service of the summons on Mary Backus for hini, and there is no presumption that it was, and therefore it does not appear that the service or notice required by the statute was had or given, or that the circuit court of Linn .county ever acquired jurisdiction to order a sale of the property. It is not necessary to consider the other objections to the service, nor whether the plaintiff could in this action contradict the return of the sherift', so as to show that Grigsby, at the datlil of the service on Mary Backus, had no place of abode in Linn county, or even in the state. The question was argued and submitted upon the understandingthaUfthe #
46
I'EDEMTi REPORTER.
cbhrt found'the return'sufticient, 'the plaintiff would then, if allowed, offerevidEmce to contradict it, as suggested. As I have said, my opinion is that the return cannot be contradicted, except ina suit in equity, brought for the purpose of setting aside the judgment thereon. There must be a finding of fact and law for the plaintiff.
YOUNG 'D.
Dlil PUTRON.
SAME 'lJ. LEIGHTON et '" DkIVING P ASS'N.
al.
SAME 17. LINCOLN
(Jourt, D. Neb'l'a8ka. December 17,1888.)
EXECuTION-BALE-RIGHTS OF PURCHASER.
In Nebraska. the title.of a purchaser at e;l[ecution sale Is not complete until . contirmationof the sale by .the court. and where the contirmation, after being entered. is at the same term set aside. before a transfer of the property by the purchaser, his vendees acquire no title· ,In upon special findings of a Jury, where It appears that an attorney in fact fonr years after his appointment had fraudulently conveyed his principal's land. worth $70,000, for $1.000. it will be assumed. under a finding, that the power, of attorneY was executed to enable the appointee "to make conveya'nces to purchasers when sales were made br." persons 'Damed, who had contracted to plat and sell the land. "and to faCilitate their operations under their contract." that the, facts stated in the finding appeared upon the face of the power of attorney. and. the sale not having beeJ;l, made by the persons named. no title passed to the fraudulent grantee which could ' be reeogBized even at law.
.. PRINCIPAL AND AGENT-POWER OF ATTORNEy-EXECUTION-TRIAL-JUDGKENT ON FINDING/!.
8. .TAXATION...,..TAX TITLE-DEED-8EAL. In N;ebrask,a. tax deeds not sealed by the county treasurer with his official seal Bre void. and no title is acquired thereunder where the jury have found that the possession during the statutory period was not "open, notorious, ex· ' clusive, and adverse," but "mixed. II
At I..aw. Motion for judgment upon special findings of fact. ' R. S. Hall and J. R Web8ter, for plaintiffs. Lamb, Ricketts Wilson and Harwood, Ames «KeUy. for defendants. BREWER, J. Complaina:nt's chain of title ia brief, direct, and clear,. as, follows: ! A patent froIn the United States, December 16, 1862, to Jane Y. Irwin; a deed, August 9,1867, from herto William P. Young; areconveyance,February 6, 1874, from Young to Irwin; a deed, June 11,1884, to complainant. As. against .this chain of title defendants pre. sent three claims: ' First, a judicial sale. On May 19, 1877,a judgment was rendered in the district court of Lancaster county against Jane Y. Irwin. E:xecution waS: issued, and sale made October 2, 1877 ,tGE. :Curson..QetJober 10th an order of confirmation was entered,which, at the same term, and OB November 3d1was set aside. Cursontook this order setting aBide the confi,rmation to the supreme court fOil review, but it was affirmed.! S68Bions v'. :Irwin, 8 Neb. 5., After- the orderi of confir-