Janney v. Spedden

• Decision Date: 31 July 1866
• Citation: 38 Mo. 395
• Parties: GEORGE W. JANNEY, Defendant in Error, v. HUGH S. SPEDDEN et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

38 Mo. 395

GEORGE W. JANNEY, Defendant in Error,

v.HUGH S. SPEDDEN et al., Plaintiffs in Error.

Supreme Court of Missouri.

July Term, 1866.

Error to Pettis Circuit Court.

F. P. Wright, for plaintiffs in error.

I. The facts stated in the petition do not authorize the judgment rendered. The petition contains no equity; Janney, being divested of title, has none over which a cloud can hang.

II. The original suit was a proceeding in chancery, in which all admit that constructive notice by publication as to non-residents is sufficient. The court thereby obtained jurisdiction, and jurisdiction was not lost by a dismissal of so much of the petition as asked the enforcement of a vendor's lien, and especially as Janney was a non-resident--January v. Rice, 33 Mo. 409; Head's (Penn.) R. 39; 10 Yerg. 83.

III. By the provisions of the statute, notice by publication to non-resident defendants, where a part or all of them reside out of the State, is effectual; and judgments rendered upon such constructive notice are valid within the State, and can be enforced on any property within the State, whether such judgments are in rem or in personam, or whether the proceedings are at law or in equity. Secs. 13, 15 and 17 of Art. V. apply to all ordinary actions--R. C. p. 1224-5. Such judgments are termed judgments ad rem, though no particular property is mentioned--ib. 1. Though formerly notice by publication to non-residents was given in chancery proceedings, now there is but one form of action, and the article applies to such action whether legal or equitable. 2. Such is the reading of the statute, without ambiguity, and the intention of the Legislature is to be searched for in the words employed to convey it--Paulina's Cargo v. U. S., 7 Cranch, 52; U. S. v. Fisher, 2 Cranch, 358. Where the intent is plain, nothing is left for construction.

IV. The construction of the statute has been acted on by the Circuit Court, acquiesced in by the bar generally, and sanctioned by this court in a very recent decision--Pomeroy v. Betts et al., 31 Mo. 419.

V. The Legislature has the undoubted right to prescribe the manner of notifying non-resident defendants, and judgments rendered in pursuance of such requirements will be valid although they have no extra-territorial effect.

VI. The action in this case is properly brought--Smith's Lea. Cas. 700; Granger v. Clark, 22 Me. 128. It is the office of equity to remove obstructing titles and claims. The defendants Speddens being in possession, the remedy provided in § 62, art. 6, p. 1241, R. C. 1855, is unavailing.

VII. The principle that judgments in personam, rendered without personal service, are against natural justice, only applies as to their validity extra territoriam. Natural justice and the principles of good government require that the property of the debtor, within the jurisdiction of the State, should, by law, be applied to satisfy the just demand of the creditor, (1) by proceedings in rem, by first attaching, and then ascertaining the justice and amount of the claim due,and a subsequent sale of the property to satisfy the demand; and (2) it cannot be less just or more injurious to the debtor for the court, by competent evidence, first to ascertain the demand and then by process of law appropriate the property in satisfaction. Such is the practice of other nations. The property alone is affected in either case: (1) in England, for instance, in respect to suits in personam, by a mere citation, viis et modis (by ways and means), by posting up such citation on the Royal Exchange in London; (2) in Scotland, by an edictal citation posted up at the quay at Leith, at the market-cross at Edinburgh, and at the pier and shore of Leith. Such proceedings are purely local, and locally valid, though elsewhere they will be held to be mere nullities.--Sto. Confl. L. § 546; Wheat. Internat. Law, 112. Every State has the power of “prescribing the conditions on which suits at law may be commenced and carried on within its territory”--Id. 113 & 163.

VIII. Janney, by his appearance and motion on the return day of the execution to set aside the judgment and quash the execution, is estopped from obtaining relief in this suit--Harris v. Hardiman, 14 How. (U. S.) 335.

IX. The court had no authority to annul the deeds and dispossess Hugh S. Spedden. The sale was regular; he was an innocent purchaser for a valuable consideration, and his title cannot be disturbed--R. C. 1855, p. 1282, § 20; Shields v. Powers, 29 Mo. 315; 17 Mo. 71; Voorhies v. Bk. of U. S., 10 Pet. 449.

John F. Phillips, for defendant in error.

I. The court did not obtain any jurisdiction over the person of Janney by the order of publication made in the cause, so as to authorize a general judgment in personam, and consequently the judgment against him was null and void.

II. If the facts stated in the petition and order of publication gave the court jurisdiction in rem to foreclose the equity of redemption and enforce the vendor's lien, it did not confer any jurisdiction over Janney in personam--Sto. Confl. L. § 539, &c. Bigelow v. Stearnes, 19 John, 40; Hollingsworth v. Barbour, 4 Pet. 475; Williamson v. Berry, 8 How, 495; Picquet v. Swan, 5 Mason, 35; Rootes v. Tompkins, 3 Grattan, 98; D'Arcey v. Ketchum et al., 11 How. 165; Boswell v. Dickerson, 4 McLain, 262; Boswell's Less. v. Otis, Adm'r, &c., 9 How. 336, &c. Bissell v. Briggs, 9 Mass. 464; Starbuck v. Murray, 5 Wend. 156. Nor will it suffice to say that although the judgment rendered on the order of publication may not have any extra-territorial force, yet it is competent to operate upon and bind all property situate within its jurisdiction.--See § 1, Art. IV., Const. U. S.; Act of Cong. May 26, 1790, 1 U. S. Stat. 192; D'Arcey v. Ketchum et al., 11 How. 165; Boswell's Lessee v. Otis, Adm'r, 9 How. 336; Wilson et al. v. Bk. Mt. Pleasant, 6 Leigh, 579; Mills v. Duryee, 7 Cran. 483; Sto. Confl. . § 547, and notes; Id. § 549, and note 2; Webb v. Garner et al., 4 Mo. 12.

III. That the action of plaintiff in amending his petition, and dismissing so much of it as sought to enforce a vendor's lien, did not and could not confer on the court any jurisdiction over the person of Janney other than what it already possessed by reason of the order of publication made in the cause-- Boswell's Lessee v. Otis, Adm'r, 9 How. 336, &c. § 12, art. 12, p. 1280, Prac. in Civ. Cas. R. C. 1855. “The damage or other relief shall not be other or greater than that which he shall have demanded in the petition, as originally filed and served on defendants.”

IV. Janney is not precluded by the motion filed to set aside the judgment and quash the execution--1 Greenl. Ev. §§ 528-30; Wynn v. Wyatt's Adm'r, 11 Leigh, 584; Eastman v. Cooper, 15 Pick. 276; Starbuck v. Murray, 5 Wend. 159. A party in court for one purpose, is not there for every other purpose-- Starbuck v. Murray, 5 Wend. 160; 9 Mo. 638; Lincoln v. Hilbus, 36 Mo. 149; Smith, Adm'r, v. Rollins, 25 Mo 408.

HOLMES, Judge, delivered the opinion of the court.

This was a petition for equitable relief, praying to have a judgment, a sale of real estate under the judgment, a sheriff's deed to the purchaser at the sale, and a deed from the purchaser to a third person (one of the defendants), declared void, and that the plaintiff have restitution of the possession of the property sold.

It appears that the plaintiff and one Adam Householder had bought certain lands of Robert R. Spedden, and given their two notes for the balance of the purchase money unpaid, and taken from the vendor a bond for a deed conveying the title when the notes should be fully paid; that, the notes not being paid when due, the vendor brought suit in the Pettis Circuit Court against them, stating the sale, with a description of the lands sold, the notes given for the balance of the purchase...