Bartero v. Real Estate Sav. Bank

• Decision Date: 08 March 1881
• Citation: 10 Mo.App. 76
• Parties: JOHN B. BARTERO, Appellant, v. REAL ESTATE SAVINGS BANK, Respondent.
• Court: Missouri Court of Appeals

10 Mo.App. 76

JOHN B. BARTERO, Appellant,

v.REAL ESTATE SAVINGS BANK, Respondent.

St. Louis Court of Appeals, Missouri.

Mar. 8, 1881.

1. “Proceedings in rem” defined.

2. One who was not served and who did not appear is not concluded by a judgment in an action by a widow for the recovery of dower.

3. In a suit for dower, where the defendant had, prior to the institution of the suit, sold the land, his grantee, who was not made a party, is not in such privity with the defendant in that suit as that the judgment therein will affect him.

APPEAL from the St. Louis Circuit Court, THAYER, J.

Affirmed.

T. A. & H. M. POST, with whom is J. D. JOHNSON, for the appellant: The action for dower was strictly a proceeding in rem, the sole inquiry being as to the widow's rights in the res. It was in many respects parallel to a proceeding to enforce a mechanic's lien; and in numerous instances it has been held that a mortgagee was, by reason of privity of estate, prevented from attacking a judgment on a mechanic's lien and a sale had thereunder, although the lien suit was brought after the date of the mortgage, and the mortgagee was not made a party.-- The State v. Eads, 15 Iowa, 114; Vitt v. Dixon, 12 Mo. 480; Howard v. Robinson, 3 Cush. 11. Being a proceeding in rem, it was binding on the whole world.--Freem. on Judg., sects. 606, 607, 611. It must be remembered that in the case at bar plaintiff's right of dower existed before the mortgage was given to respondent.-- The State v. Railroad Co., 10 Nev. 80; Otis v. Rio Grande, 1 Woods, 279; Herman on Estop., sect. 105. Even under Beach's evidence, there was a part of the purchase-money which was still unpaid, and Mrs. Keith still retained a vendor's lien on the land, to secure it; and especially would this be true if the deed had not been delivered.-- Jones v. Patterson, 12 Pa. St. 149; Kennedy v. McAbiley, 9 Rich. L. 395.

JOHN N. STRAAT, for the respondent: The judgment in the proceeding for an admeasurement of dower was not a proceeding in rem.--1 Greenl. on Ev., sects. 525, 550. The court did not acquire jurisdiction as to the res in the manner provided by statute.--Freem. on Judg., sects. 607-615; Corby v. Wright, 4 Mo. App. 443.

LEWIS, P. J., delivered the opinion of the court.

This is an action of ejectment. The plaintiff claims title from a purchase at sheriff's sale, under a judgment in favor of Stephen Gunn and Hannah, his wife, against William S. Woods, trustee, Susan W. Keith, and David Keith, wherein Mrs. Gunn's right of dower in the premises sued for was established, by virtue of a previous marriage. The testimony tended to show that prior to the institution of the dower suit the defendants in that proceeding had owned the property, and had conveyed it to a trustee to secure a debt in favor of the present defendant's grantor or predecessor, and had also sold and conveyed their equity of redemption to a trustee for the use and benefit of Elizabeth E. Beach, wife of Richard M. Beach; so that, when the dower suit was commenced, the defendants therein had already parted with all their interest and title in the premises, together with the possession. The present defendent has acquired title under the deed of trust executed by Woods and the Keiths. The Circuit Court gave judgment for the defendant.

It is contended for the plaintiff that Mrs. Gunn's suit fo her dower was ““strictly a proceeding in rem,” and the judgment was therefore binding on all the world. That hence, the defendant is bound by it, although not a party nor in privity with any named party, to the proceeding.

Various definitions have been given of a judgment in rem but all are criticised as either incomplete, or comprehending too much. It is generally said to be a judgment declaratory of the status of some subject-matter, whether this b a person or a thing. Thus, the probate of a will fixes th status of the document as a will. The personal rights and interests which follow are mere incidental results of the status or character of the paper, and do not appear on the face of the judgment. So, a decree establishing or dissolving a marriage is a judgment in rem, because it fixes the status of the person. A judgment of forfeiture, by the proper tribunal, against specific articles or goods, for a violation of the revenue laws, is a judgment in rem. But it is objected that the customary definition does not fit such a case, because there is no fixing of the status of anything, the whole effect being a seizure, whatever the thing may be. In the foregoing instances, and many others, the judgment is conclusive against all the world, without reference to actual presence or participation in the proceedings. If the expression, “strictly in rem,” may be applied to any class of cases, it should be confined to such as these. A very able writer says: “The distinguishing characteristic of judgments in rem is that, wherever their obligation is recognized and enforced as against any person, it is equally recognized and enforced as against all persons. It seems to us that the true definition of a judgment in rem is, ‘an adjudication’ against some person or thing, or ‘upon the status of some subject-matter,’ which, wherever and whenever binding upon any person, is equally binding...