Oswald v. Kampmann

• Decision Date: 28 June 1886
• Citation: 28 F. 36
• Parties: OSWALD and another v. KAMPMANN.
• Court: U.S. District Court — Western District of Texas

28 F. 36

OSWALD and another v. KAMPMANN.

United States Circuit Court, W.D. Texas.

June 28, 1886

Carleton & Morris, for plaintiffs.

Waelder & Upson, for defendant.

TURNER J.

One of the plaintiffs is the widow of W. Oswald, and the other a child of Mrs. Oswald. In 1852 one Conrad contracted for the lands in question with the city of San Antonio. Conrad was to pay $87 therefor; 20 per cent. cash, the balance to be paid at the expiration of 50 years, but the interest on the deferred payment was to be paid semi-annually, and, in case of default in the payment of the interest as it accrued, then the deferred payment of the principal, and all of the accrued interest, was to become due. The contract and deed, as it is called, is in one paper, and there are apt words to make a good conveyance in fee to the purchaser; and still, the whole instrument construed together, the same would better be described as a contract and deed.

Conrad sold to W. Oswald, deceased, Oswald assuming the payment of the unpaid balance of the purchase money, and was, as between them, subrogated to all the rights, duties, and obligations of Conrad. After the death of W. Oswald, the deferred payments not having been made, the city of San Antonio instituted suit in the district court of Bexar county, the object of which was to obtain a judgment for the unpaid balance of interest, and to foreclose the lien retained in the deed and contract. In that suit J. B. Conrad and W Oswald were made defendants. After the death of W. Oswald and before September, 1870, Mrs. Oswald and her daughter went to Germany, (they were Germans,) and have not returned. The suit was instituted, as stated, in the district court of Bexar county, and service was made by publication. Judgment was rendered in the case, and a judgment foreclosing the vendor's lien was entered, the land sold upon an execution, and order of sale issued upon the judgment, (no actual seizure of the property was made, so as to bring the property into the custody of the law.) One J. H. Kampmann became the purchaser. Kampmann was stranger to the judgment and defendant claims under the Kampmann title. The sale to Kampmann was on the fourth day of November, A. D. 1873, 12 years before the institution of this suit. The property in the mean time has become of great value.

The plaintiff Mrs. Oswald was bound to know that the purchase money for the land was not paid, as her deed recites and provides for suit, and now, after this lapse of time, she comes into court, and asks that she may have these lands back. The incumbrance upon the land has been discharged by the purchase. She suffered the purchaser to rest securely for 12 years, and now demands that the lands shall be decreed to her because the proceedings in the foreclosure suit were not in strict conformity to the laws of the state, which provided for service by publication. I am aware of the rule that when proceedings are instituted not in accordance with the common law, viz., by actual service, that the provisions of the statute are to be strictly constructed; and, further, of the proposition that no state can give extraterritorial effect to its laws, this doctrine is too well settled to require authorities, and will only cite Pennoyer v. Neff, 95 U.S. 714. And it may be questioned whether, had the suit been for an ordinary debt, evidenced by a note or account, the judgment would be void for want of service. Back of this rule and based upon it, is the idea that every person has a right to his day in court; that is, shall be entitled to notice that action is being had that may affect his rights and property. This is a well-settled doctrine, but, like most other general rules, may have exceptions.

In this case the plaintiff left the state knowing that this property was liable to be sold to pay this debt, and knowing, also, that the title under which she claimed made provisions on its face for the institution of suit to foreclose the lien; and if she saw fit to abandon the country, and pay no attention to the property, she ought not to be heard to complain if the law makes an exception to the general rule in her case. In order to succeed, the plaintiff must show that the judgment was not voidable merely, but that it is and was absolutely void for want of jurisdiction over the person and of the property in question. The proceeding was instituted to foreclose the lien, but no actual seizure was made. The question, then, recurs, must there, of necessity, be an actual seizure of the property, as in cases when the proceedings are strictly in rem, in order to confer jurisdiction over the property within the territorial limits of the state, in case of an absconding party or debtor?

In the case of Pennoyer v. Neff it is stated that substituted service by publication may be sufficient in 'cases where...