John Roller v. Stephen Holly

• Citation: 44 L.Ed. 520,20 S.Ct. 410,176 U.S. 398
• Decision Date: 26 February 1900
• Docket Number: No. 104,104
• Parties: JOHN E. ROLLER, P lff. in Err ., v. STEPHEN HOLLY et al
• Court: United States Supreme Court

176 U.S. 398

20 S.Ct. 410

44 L.Ed. 520

JOHN E. ROLLER, Plff. in Err.,

v STEPHEN HOLLY et al.

No. 104.

Submitted January 18, 1900.

Decided February 26, 1900.

This was an action instituted July 14, 1894, by the plaintiff Roller in the district court of Limestone county, Texas, to recover a judgment against Stephen Holly and William Holly upon five promissory notes for $228 each, dated January 1, 1890, payable to plaintiff, for the purchase price of a tract of 114 acres of land in that county, sold by him to them, and also to foreclose a vendor's lien upon the land to the amount of such notes.

To this action Joseph Peoples, H. W. Williams, and W. T. Jackson were also made parties defendant under an allegation that they were asserting an interest in the land, and a foreclosure of the vendor's lien was sought as against them. The defendants were all duly cited; the Hollys failed to answer, but the defendants Peoples, Williams, and Jackson filed an amended answer at the January term, 1895, of the court, in which they alleged that the plaintiff Roller bought the land in question from John W. and Cora E. Jordan in January, 1887, and gave in part payment therefor his note for $216.17, due November 1, 1890, in which note as well as in the deed made to him a vendor's lien was retained; that before the maturilty of this note the firm of McClintic & Proctor had become its owners, and on December 24, 1890, began in the district court of Limestone county a suit against the plaintiff for a foreclosure of the vendor's lien upon the land; that, 'after due service being had,' McClintic & Proctor on January 9, 1891, recovered a judgment against the plaintiff for $276.65, with interest and costs of suit, and an order for the foreclosure of the vendor's lien; that an order of sale was issued, and on March 3, 1891, the land was sold by the sheriff of Limestone county for $300, and bought by defendant Williams, who paid the amount to the sheriff, though the defendant Jackson was interested with him in the purchase, and on May 4, 1891, the two sold the land to their codefendant, Peoples.

Prayer: That in the event plaintiff recovered the land as against the defendants Williams, Jackson, and Peoples, they recover of plaintiff the $300 paid for the land, and that the same be decreed a lien thereon.

To this amended answer plaintiff filed a first supplemental petition, consisting of demurrer, exceptions, and answer, containing——

First. A general denial.

Second. That at the time of the institution of the suit of McClintic & Proctor against him, plaintiff was a citizen of the state of Virginia, and resided in the county of Rockingham, said state.

That in January, 1890, he sold and conveyed the land in controversy to Stephen and William Holly by written instrument signed by him, and took the notes sued on as purchase price of the land.

That he put his said vendees in possession of the land, and that they were in possession of the land at the time of the institution of the McClintic & Proctor suit and had been in possession since the sale to them, and that neither they nor the Jordans were made parties to that suit.

That the McClintic & Proctor judgment was void as to plaintiff, because the district court of Limestone county, Texas, never acquired jurisdiction over him nor the property in question.

That the judgment was not obtained nor was the sale of the land made and obtained by due process of law, but was in contravention of the Fourteenth Amendment to the Constitution of the United States.

That service of process on him in the McClintic & Proctor suit was obtained without the jurisdictional limits of the state of Texas, to wit, in the county of Rockingham and state of Virginia.

That no writ of attachment or other writ was levied on the land.

Third. That the proceedings in the McClintic & Proctor suit prior to the judgment and the allegations in the petition were ineffectual to confer jurisdiction on the district court of Limestone county over either the person of plaintiff or the land.

Fourth. That the time given him in which to answer the suit of McClintic & Proctor before the actual rendition of their judgment was not reasonable notice, nor such due and orderly proceedings, under the facts and circumstances as disclosed by the record thereon, as the law requires.

Fifth. That the lien attempted to be enforced in the McClintic & Proctor suit was an equitable lien, created by operation of law, and there has been no legislation in Texas authorizing such suit.

Upon an agreed statement of facts, substantially as above, judgment was rendered by default in favor of plaintiff against the Hollys for $1,722.66, but the court refused to enforce the vendor's lien against the land, and gave judgment against plaintiff and in favor of Williams, Jackson, and Peoples for costs. Plaintiff appealed to the court of civil appeals, which affirmed the decree of the district court. (13 Tex. Civ. App. 636, 35 S. W. 1074.) Plaintiff thereupon applied to the supreme court of the state for a writ of error, which that court refused; whereupon he sued a writ of error from this court.

Messrs. John E. Roller and W. S. Laidley for plaintiff in error.

Messrs. W. T. Jackson, H. W. Williams, and Joe Peoples, P. P., for defendants in error.

Statement by Mr. Justice Brown:

Briefly stated, the case is this: Roller, the plaintiff, who was a resident of Virginia, bought this land in January, 1887; gave a note in part payment for $216.17, which passed into the hands of McClintic & Proctor, who brought suit thereon for a personal judgment against the plaintiff and for the foreclosure of a vendor's lien upon the land; served plaintiff with notice of the suit in Virginia, December 30, 1890, to appear in Texas January 5, 1891; and took judgment against him by default January 9, 1891, for $276.65, and for a foreclosure of the lien. Upon a sale in pursuance of this foreclosure, March 3, 1891, the land was struck off to Williams and Jackson, and by them sold to Peoples.

Meantime, however, and on January 1, 1890, a year before the McClintic & Proctor suit was begun, plaintiff sold the land to the Hollys, who went into possession, and took from them five notes of $228 each, and also reserved a vendor's lien, which he sought to foreclose in this suit. Williams, Jackson, and Peoples, who purchased the land under the sheriff's sale in the McClintic & Proctor auit, were made parties defendant, and now aver that the plaintiff's title passed to them, which plaintiff denies upon the ground that no process was served upon the within the state of Texas, or within a reasonable time before he was required to appear and answer.

The question in dispute, then, is whether a notice served upon the plaintiff in Rockingham county, Virginia, December 30, 1890, to appear in Limestone county, Texas, on January 5, 1891, to answer the foreclosure suit is due process of law within the meaning of the Fourteenth Amendment? The Hollys, who bought this land and went into possession a year before the McClintic & Proctor suit was begun, were not made parties to that suit, probably because the deed from the plaintiff to them was not on record in Limestone county at the time of the institution of the suit, and their rights are not involved here. It is conceded that the McClintic & Proctor judgment is invalid as a personal judgment against the plaintiff under the case of Pennoyer v. Neff, 95 U. S. 723, 24 L. ed. 569, and other cases in Texas of the same import.

1. The position of the plaintiff that, as there was no statute in Texas authorizing a suit against a nonresident to enforce an equitable lien for purchase money, and as there had been no seizure in rem of the lands, nor any notice to Roller's vendees, the Hollys, who were in possession, the jurisdiction of the Texas courts could not attach, and the whole proceeding was void, is unsound.

In the case of Hart v. Sansom, 110 U. S. 151, 28 L. ed. 101, 3 Sup. Ct. Rep. 586, relied upon in support of this contention, an action of ejectment was brought against several defendants, who set up in defense a judgment against the plaintiff as one having some pretended claim or title to the lands, and other defendants holding recorded deeds thereof, which were averred to be fraudulent and void. Plaintiffs in that suit averred that these pretended deeds and claims cast a cloud upon their title, and that one of the defendants had ejected them from the lands and withheld possession from the plaintiffs. Due service was made on the other defendants, and a citation to Hart, who was a citizen of another state, was published as directed by the local statutes. All the defendants were defaulted, and upon a writ of inquiry the jury found that Hart claimed the land, but had no title by record or otherwise, and returned a verdict for the plaintiffs upon which judgment was entered for a recovery of the land, the cancelation of the deeds, and the removal of the cloud upon the title. It was held that this judgment was no bar to an action by Hart in the circuit court of the United States, to recover the land against Sansom, who held under a lease from the plaintiffs in the former suit. We held that none of that judgment was applicable to Hart, since that part which was for recovery of possession could not apply to him, as he was not in possession; and that part which was for the cancelation of the deeds set up in the petition was a decree in personam merely, and could only be supported against a nonresident of the state by actual service upon him within the jurisdiction of the state, and that constructive service by publication was not sufficient. Neither of the plaintiffs, however, was in possession of the land or claimed a lien thereon.

In Arndt v. Griggs, 134 U. S. 316, 33 L. ed. 918, 10 Sup. Ct. Rep. 557, it was held directly that a state may provide by statute that the title to real estate within its limits shall be settled and determined by a suit in which...