Tyler v. Judges of the Court of Registration

• Citation: 55 N.E. 812,175 Mass. 71
• Parties: TYLER v. JUDGES OF THE COURT OF REGISTRATION.
• Decision Date: 03 January 1900
• Court: United States State Supreme Judicial Court of Massachusetts

175 Mass. 71

55 N.E. 812

TYLER v. JUDGES OF THE COURT OF REGISTRATION.

Supreme Judicial Court of Massachusetts, Suffolk.

January 3, 1900

COUNSEL

J. L. Thorndike, for petitioner.

H. M Knowlton, Atty. Gen., and F. T. Hammond, Asst. Atty. Gen for respondents.

OPINION

HOLMES C.J.

This is a petition for a writ of prohibition against the judges of the court of registration established by St. 1898, c. 562 and is brought to prevent their proceeding upon an application concerning land in which the petitioner claims an interest. The ground of the petition is that the act establishing the court is unconstitutional. Two reasons are urged against the act, both of which are thought to go to the root of the statute, and to make action under it impossible. The first and most important is that the original registration deprives all persons except the registered owner of any interest in the land, without due process of law. There is no dispute that the object of the system, expressed in section 38, is that the decree of registration 'shall bind the land and quiet the title thereto,' and 'shall be conclusive upon and against all persons,' whether named in the proceedings or not, subject to few and immaterial exceptions; and, this being admitted, it is objected that there is no sufficient process against, or notice to, persons having adverse claims, in a proceeding intended to bar their possible rights.

The application for registration is to be in writing, and signed and sworn to. It is to contain an accurate description of the land, to set forth clearly other outstanding estates or interests known to the petitioner, to identify the deed by which he obtained title, to state the name and address of the occupant, if there is one, and also to give the names and addresses, so far as known, of the occupants of all lands adjoining. Section 21. As soon as it is filed, a memorandum containing a copy of the description of the land concerned is to be filed in the registry of deeds. Section 20. The case is immediately referred to an examiner appointed by the judge (section 12), who makes as full an investigation as he can, and reports to the court (section 29). If, in the opinion of the examiner, the applicant has a good title, as alleged, or if the applicant, after an adverse opinion, elects to proceed further, the recorder is to publish a notice, by order of the court, in some newspaper published in the district where any portion of the land lies. This notice is to be addressed, by name, to all persons known to have an adverse interest, and to the adjoining owners and occupants, so far as known, and to all whom it may concern. It is to contain a description of the land, the name of the applicant, and the time and place of the hearing. Section 31. A copy is to be mailed to every person named in the notice whose address is known, and a duly-attested copy is to be posted in a conspicuous place on each parcel of land included in the application, by a sheriff or deputy sheriff, 14 days, at least, before the return day. Further notice may be ordered by the court. Section 32.

It will be seen that the notice is required to name all persons known to have an adverse interest, and this, of course, includes any adverse claim, whether admitted or denied, that may have been discovered by the examiner, or in any way found to exist. Taking this into account, we should construe the requirement in section 21, concerning the application, as calling upon the applicant to mention, not merely outstanding interests which he admits, but equally all claims of interest set up, although denied by him. We mention this here to dispose of an objection of detail urged by the petitioner, and we pass to the general objection that, however construed, the mode of notice does not satisfy the constitution, either as to persons residing within the state upon whom it is not served, or as to persons residing out of the state and not named.

If it does not satisfy the constitution, a judicial proceeding to clear titles against all the world hardly is possible; for the very meaning of such a proceeding is to get rid of unknown as well as known claims,--indeed, certainty against the unknown may be sad to be its chief end,--and unknown claims cannot be dealt with by personal service upon the Improvement Co., 130 U.S. 559, 564, 9 Sup. of the supreme court of Ohio, in the case most relied upon by the petitioner, that such a judicial proceeding is impossible in this country. State v. Guilbert, 56 Ohio St. 575, 629, 47 N.E. 551. But we cannot bring ourselves to doubt that the constitutions of the United States and of Massachusetts, at least, permit it as fully as did the common law. Prescription or a statute of limitations may give a title good against the world, and destroy all manner of outstanding claims, without any notice or judicial proceeding at all. Time, and the chance which it gives the owner to find out that he is in danger of losing rights, are due process of law in that case. Wheeler v. Jackson, 137 U.S. 245, 258, 11 S.Ct. 76, 34 L.Ed. 659. The same result used to follow upon proceedings which, looked at apart from history, may be regarded as standing halfway between statutes of limitations and true judgments in rem, and which took much less trouble about giving notice than the statute before us. We refer to the effect of a judgment on a writ of right after the mise joined and the lapse of a year and a day (Booth, Real Act. 101, in margin; Fitzh. Abr. 'Continual Claim,' pl. 7; Faux, Recovere, pl. 1; Y. B. 5 Edw. III. 51, pl. 60); and of a fine, with proclamations after the same time, or by a later statute after five years (2 Bl. Comm. 354; 2 Inst. 510, 518; St. 18 Edw. I., 'Modus Levandi Fines'; St. 34 Edw. III. c. 16; St. 4 Hen. VII. c. 24; St. 32 Hen. VIII. c. 36). It would have astonished John Adams to be told that the framers of our constitution had put an end to the possibility of these ancient institutions. A somewhat similar statutory contrivance of modern days has been held good. Turner v. People, 168 U.S. 90, 18 S.Ct. 38, 42 L.Ed. 392. Finally, as was pointed out by the counsel for the petitioners, a proceeding 'in rem,' in the proper sense of the words, might give a clear title, without other notice than a seizure of the res and an exhibition of the warrant to those in charge. 2 Browne, Civil Law, 398. The general requirement of advertisement in admiralty ralty cases is said to be due to rules of court. U.S. Adm. Rule 9; Betts, Adm. (1838) 33, 34, App. 14.

The prohibition in the fourteenth amendment against a state depriving any person of his property without due process of law, and that in the twelfth article of the Massachusetts bill of rights, refer to somewhat vaguely determined criteria of justification, which may be found in ancient practice ( Murray's Lessee v. Improvement Co., 18 How. 272, 277, 15 L.Ed. 372); or which may be found in convenience and substantial justice, although the form is new (Hurtado v. California, 110 U.S. 516, 528, 531, 4 S.Ct. 111, 292, 28 L.Ed. 232; Holden v. Hardy, 169 U.S. 366, 388, 389, 18 S.Ct. 383, 42 L.Ed. 780). The prohibitions must be taken largely with a regard to substance, rather than to form, or they are likely to do more harm than good. It is not enough to show a procedure to be unconstitutional to say that we never have heard of it before. Hurtado v. California, 110 U.S. 516, 537, 4 S.Ct. 111, 292, 28 L.Ed. 232. Looked at either from the point of view of history or of the necessary requirements of justice, a proceeding in rem, dealing with a tangible res, may be instituted and carried to judgment without personal service upon claimants within the state, or notice by name to those outside of it, and not encounter any provision of either constitution. Jurisdiction is secured by the power of the court over the res. As we have said, such a proceeding would be impossible were this not so; for it hardly would do to make a distinction between the constitutional rights of claimants who were known and those who were not known to the plaintiff, when the proceeding is to bar all. Pennoyer v. Neff, 95 U.S. 714, 727, 24 L.Ed. 565; The Mary, 9 Cranch, 126, 144, 3 L.Ed. 678; Mankin v. Chandler, 2 Brock. 125, 127, Fed. Cas. No. 9,030; Brown v. Board, 50 Miss. 468, 481; 2 Freem. Judgm. (4th Ed.) §§ 606, 611. In Hamilton v. Brown, 161 U.S. 256, 16 S.Ct. 585, 40 L.Ed. 691, a judgment of escheat was held conclusive upon persons notified only by advertisement, to all persons interested. It is true that the statute under consideration required the petition to name all known claimants, and personal service to be made on those so named. But that did the plaintiffs no good, as they were not named. So, a decree allowing or disallowing a will binds everybody, although the only notice of the proceedings given be a general notice to all persons interested. And in this case, as in that of escheat, just cited, the conclusive effect of the decree is not put upon the ground that the state has an absolute power to determine the persons to whom a man's property shall go at his death, but upon the characteristics of a proceeding in rem. Bonnemort v. Gill, 167 Mass. 338, 340, 45 N.E. 768. See 161 U.S. 263, 274, 16 S.Ct. 585, 40 L.Ed. 691. Admiralty proceedings need only to be mentioned in this connection, and further citation of cases seems unnecessary.

Speaking for myself, I see no reason why what we have said as to proceedings in rem in general should not apply to such proceedings concerning land. In Arndt v. Griggs, 134 U.S. 316, 327, 10 S.Ct. 557, 561, 33 L.Ed. 918, 922, it is said to be established that 'a state has power, by statute, to provide for the adjudication of titles to real estate within its limits as against nonresidents who are brought...