Shepherd v. Ware
| Decision Date | 12 May 1891 |
| Citation | 48 N.W. 773,46 Minn. 174 |
| Parties | R. E. Shepherd v. Edward K. Ware and others |
| Court | Minnesota Supreme Court |
Appeal by defendants from a judgment of the district court for Mower county, where the action was tried by Farmer, J., a jury being waived.
Judgment affirmed.
French & Wright and Williams, Goodenow & Stanton, for appellants.
Kingsley & Shepherd, for respondent.
This is an action to recover the possession of certain land described in the complaint, alleged and admitted to be in defendants' possession. Upon the evidence disclosing the claim and title of each party to the premises, the court found in favor of the plaintiff.
It appeared that the plaintiff claims title under one Daniels from whom he received a conveyance of the premises in 1889. It is found by the court that Daniels, in 1882, by virtue of certain tax-sales, had color of title to the land, and in November of that year commenced an action to quiet the title and determine adverse claims under the statute, in which action one "Benjamin Human and all other persons or parties unknown, claiming any right, title, or interest in the real property described in the complaint on file in the action, and their unknown heirs," were defendants. The action proceeded against the parties defendant as above described, and the summons was served by publication, in pursuance of the provisions of Gen St. 1878, c. 75, § 2, as amended, (Laws 1881 Ex. Sess. c. 81.) The court found that the provisions of that chapter were in all things complied with as to the parties and procedure, and that judgment was rendered by default in Daniels's favor in March, 1888, whereby, among other things, it was adjudged that Daniels was the owner and entitled to the quiet and peaceable possession of the premises. The original patentee was Benjamin Homan, who entered the land at the United States land-office in 1856, and to whom a patent was issued in 1857, and the land was certified for taxation by the register of the land-office as entered by Benjamin Human, and the certificate duly filed in the office of register of deeds of the proper county prior to October 31, 1857. No question is raised here upon the mistake in the name of the patentee, recorded as "Human" instead of "Homan." The patent to Homan was not recorded till 1885. The defendant Ware claims title by deed dated in 1885, under mesne conveyances from the patentee, none of which were recorded until 1883. The trial court held that the judgment in the action brought by Daniels against "Human and unknown claimants" bound the defendants, and ordered judgment for the plaintiff herein.
At the time the former action was commenced the title appeared of record in Homan, -- that is to say, no grantee had recorded his deed; but the title had in fact passed to one Bragg, who acquired title through intermediate conveyances in 1879, all of which were recorded with his in 1883. It was necessary, therefore, that Bragg should have been made a party to the suit brought by Daniels in 1882, when the lis pendens was filed, in order to make his judgment effectual. But if the suit in form against Homan, in whom the title appeared of record, and the unknown claimants, was sufficient to conclude Bragg, then the record of this notice of lis pendens, filed when that suit was commenced, would also bind his grantee in a subsequent deed; that is to say, if the summons, in the form published in that action, was sufficient notice to Bragg, the judgment therein is valid and binding on Ware. It being conceded that the statute in question, providing for this mode of service upon unknown claimants in the manner therein provided, was complied with, the only question to determine is whether the act in question is constitutional. The defendant claims that the procedure is not due process of law, and that the judgment is void. The question, then, is whether the legislature has the power, in actions to determine adverse claims to real property, to authorize proceedings by action against unknown claimants, and bind them by constructive notice thereof.
It is conceded that constructive or substituted service may be authorized by the state, and resorted to in all actions or proceedings touching real property which are properly denominated actions or proceedings "in rem." Such are actions to partition real estate proceedings to enforce the collection of taxes against lands, and for the condemnation of land. Pennoyer v. Neff, 95 U.S. 714, 727, 24 L.Ed. 565. Actions quia timet in respect to land, to remove a cloud, or to determine adverse claims, are equitable in their nature, and, strictly speaking, equity acts upon the person, and not upon the property; and in these actions the judgment affects the claim or title to the land, and they are not strictly actions in rem. But they concern real estate lying within the jurisdiction of the court, and the state may clothe the court with full power to inquire and adjudicate as to its status, title, and ownership; and it is now well settled that, as respects the procedure provided, and the constructive service of notice by publication upon non-resident defendants, at least, actions of this kind are to be classed with actions in rem. Arndt v. Griggs, 134 U.S. 316, 322-326, (10 S.Ct. 557, 33 L.Ed. 918;) Lane v. Innes, 43 Minn. 137, (45 N.W. 4.) The question is not what a court of equity, under its general powers as such, may do, but what the state may authorize in actions to adjudicate the title to real estate. Thus it is said in Boswell v. Otis, 50 U.S. 336, 9 HOW 336, 348, 350, 13 L.Ed. 164: ...
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Duke v. State
...206; 1 How. 311; 2 How. 612; 40 Ark. 423. 4. Service by publication under the act of January 16, 1861, is constitutional. 4 Peters, 466; 48 N.W. 773; 134 U.S. 322; How. 140; 18 N.Y. 216. 5. The attorney general had no authority to compromise the claim of the State, and there is no evidence ......