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 the defendant, being a nonresident, is brought into court by
publication.
The well settled rules that an action to quiet title is a suit
in equity; that equity acts upon the person, and that the person is
not brought into court by service by publication alone do not apply
when a state has provided by statute for the adjudication of titles
to real estate within its limits as against nonresidents, who are
brought into court only by publication.
Hart v. Sansom, 110 U. S. 151,
explained.
This was an action to recover possession of land and to quiet
title. Judgment for the plaintiff. Defendant sued out this writ of
error. The case is stated in the opinion.
Page 134 U. S. 317
MR. JUSTICE BREWER delivered the opinion of the Court.
The statutes of Nebraska contain these sections: Sec. 57, c. 73,
Compiled Statutes 1885, p. 483:
"An action may be brought and prosecuted to final decree,
judgment, or order by any person or persons, whether, in actual
possession or not, claiming title to real estate, against any
person or persons who claim an adverse estate or interest therein,
for the purpose of determining such estate or interest, and
quieting the title to said real estate."
Section 58:
"All such pleadings and proofs and subsequent proceedings shall
be had in such action now pending, or hereafter brought, as may be
necessary to fully settle and determine the question of title
between the parties
Page 134 U. S. 318
to said real estate, and to decree the title to the same, or any
part thereof, to the party entitled thereto, and the court may
issue the appropriate order to carry such decree, judgment, or
order into effect."
Section 77, Code of Civil Procedure, Compiled Statutes 1885, p.
637:
"Service may be made by publication in either of the following
cases: . . .
Fourth. In actions which relate to, or the
subject of which is, real or personal property in this state, where
any defendant has or claims a lien or interest, actual or
contingent, therein, or the relief demanded consists wholly or
partially in excluding him from any interest therein, and such
defendant is a nonresident of the state, or a foreign
corporation."
Section 78 of the Code:
"Before service can be made by publication, an affidavit must be
filed that service of a summons cannot be made within this state on
the defendant or defendants to be served by publication, and that
the case is one of those mentioned in the preceding section. When
such affidavit is filed, the party may proceed to make service by
publication."
Section 82 of the Code:
"A party against whom a judgment or order has been rendered
without other service than by publication in a newspaper may at any
time within five years after the date of the judgment or order,
have the same opened, and be let in to defend; . . . but the title
to any property, the subject of the judgment or order sought to be
opened, which by it, or in consequence of it, shall have passed to
a purchaser in good faith, shall not be affected by any proceedings
under this section, nor shall they affect the title to any property
sold before judgment under an attachment."
Section 429b of the Code:
"When any judgment or decree shall be rendered for a conveyance,
release, or acquittance in any court of this state, and the party
or parties against whom the judgment or decree shall be rendered do
not comply therewith within the time mentioned in said judgment or
decree, such judgment or decree shall have the same operation and
effect, and be as available, as if the conveyance, release, or
acquittance had been executed conformable to such judgment or
decree."
Under these sections, in March, 1882, Charles L. Flint filed his
petition in the proper court against Michael Hurley and
Page 134 U. S. 319
another, alleging that he was the owner and in possession of the
tracts of land in controversy in this suit; that he held title
thereto by virtue of certain tax deeds, which were described; that
the defendants claimed to have some title, estate, interest in, or
claim upon the lands by patent from the United States, or deed from
the patentee, but that whatever title, estate, or claim they had,
or pretended to have, was divested by the said tax deeds, and was
unjust, inequitable, and a cloud upon plaintiff's title, and that
this suit was brought for the purpose of quieting his title. The
defendants were brought in by publication, a decree was entered in
favor of Flint quieting his title, and it is conceded that all the
proceedings were in full conformity with the statutory provisions
above quoted.
The present suit is one in ejectment, between grantees of the
respective parties to the foregoing proceedings to quiet title, and
the question before us, arising upon a certificate of division of
opinion between the trial judges, is whether the decree in such
proceedings to quiet title, rendered in accordance with the
provisions of the Nebraska statute, upon service duly authorized by
them, was valid and operated to quiet the title in the plaintiff
therein. In other words, has a state the power to provide by
statute that the title to real estate within its limits shall be
settled and determined by a suit in which the defendant, being a
nonresident, is brought into court only by publication. The Supreme
Court of Nebraska has answered this question in the affirmative.
Watson v. Ulbrich, 18 Neb. 186, in which the court
says:
"The principal question to be determined is whether or not the
decree in favor of Gray rendered upon constructive service is valid
until set aside. No objection is made to the service, or any
proceedings connected with it. The real estate in controversy was
within the jurisdiction of the district court, and that court had
authority in a proper case to render the decree confirming the
title of Gray. In
Castrique v. Imrie, L.R. 4 H.L. 414-429,
Mr. Justice Blackburn says:"
"We think the inquiry is first whether the subject matter was so
situated as to be within the lawful control of the state under the
authority of which the court sits, and secondly whether the
Page 134 U. S. 320
sovereign authority of that state has conferred on the court
jurisdiction to decide as to the disposition of the thing, and the
court has acted within its jurisdiction. If these conditions are
fulfilled, the adjudication is conclusive against all the world. .
. ."
"The court therefore in this case, having authority to render
the decree and jurisdiction of the subject matter, its decree is
conclusive upon the property until vacated under the statute or set
aside."
Section 57, enlarging as it does the class of cases in which
relief was formerly afforded by a court of equity in quieting the
title to real property, has been sustained by this Court, and held
applicable to suits in the federal court.
Holland v.
Challen, 110 U. S. 15. But
it is earnestly contended that no decree in such a case, rendered
on service by publication only, is valid or can be recognized in
the federal courts, and
Hart v. Sansom, 110 U. S.
151, is relied on as authority for this proposition. The
propositions are that an action to quiet title is a suit in equity,
that equity acts upon the person, and that the person is not
brought into court by service by publication alone.
While these propositions are doubtless correct as statements of
the general rules respecting bills to quiet title and proceedings
in courts of equity, they are not applicable or controlling here.
The question is not what a court of equity, by virtue of its
general powers and in the absence of a statute might do, but it is
what jurisdiction has a state over titles to real estate within its
limits, and what jurisdiction may it give by statute to its own
courts to determine the validity and extent of the claims of
nonresidents to such real estate? If a state has no power to bring
a nonresident into its courts for any purposes by publication, it
is impotent to perfect the titles of real estate within its limits
held by its own citizens, and a cloud cast upon such title by a
claim of a nonresident will remain for all time a cloud unless such
nonresident shall voluntarily come into its courts for the purpose
of having it adjudicated. But no such imperfections attend the
sovereignty of the state. It has control over property within its
limits and the condition of ownership of real estate therein,
whether the owner be
Page 134 U. S. 321
stranger or citizen, is subjection to its rules concerning the
holding, the transfer, liability to obligations, private or public,
and the modes of establishing titles thereto. It cannot bring the
person of a nonresident within its limits -- its process goes not
out beyond its borders -- but it may determine the extent of his
title to real estate within its limits, and, for the purpose of
such determination, may provide any reasonable methods of imparting
notice. The wellbeing of every community requires that the title to
real estate therein shall be secure and that there be convenient
and certain methods of determining any unsettled questions
respecting it. The duty of accomplishing this is local in its
nature. It is not a matter of national concern, or vested in the
general government. It remains with the state, and, as this duty is
one of the state, the manner of discharging it must be determined
by the state, and no proceeding which it provides can be declared
invalid unless in conflict with some special inhibitions of the
Constitution or against natural justice. So it has been held
repeatedly that the procedure established by the state, in this
respect, is binding upon the federal courts. In
United States
v. Fox, 94 U. S. 315,
94 U. S. 320,
it was said:
"The power of the state to regulate the tenure of real property
within her limits, and the modes of its acquisition and transfer,
and the rules of its descent, and the extent to which a
testamentary disposition of it may be exercised by its owners, is
undoubted. It is an established principle of law everywhere
recognized, arising from the necessity of the case, that the
disposition of immovable property, whether by deed, descent, or any
other mode, is exclusively subject to the government within whose
jurisdiction the property is situated."
See also McCormick v.
Sullivant, 10 Wheat. 202;
Beauregard
v. New Orleans, 18 How. 497;
Suydam v.
Williamson, 24 How. 427;
Christian Union v.
Yount, 101 U. S. 352;
Lathrop v. Bank, 8 Dana 114.
Passing to an examination of the decisions on the precise
question, it may safely be affirmed that the general, if not the
uniform, ruling of state courts has been in favor of the power of
the state to thus quiet the title to real estate within its limits.
In addition to the case from Nebraska heretofore
Page 134 U. S. 322
cited, and which only followed prior rulings in that state,
Scudder v. Sargent, 15 Neb. 102;
Keene v.
Sallenbach, 15 Neb. 200, reference may be had to a few cases.
In
Cloyd v. Trotter, 118 Ill. 391, the Supreme Court of
Illinois held that under the statutes of that state the court could
acquire jurisdiction to quiet title by constructive service against
nonresident defendants. A similar ruling as to jurisdiction
acquired in a suit to set aside a conveyance as fraudulent as to
creditors was affirmed in
Adams v. Cowles, 95 Mo. 501. In
Wunstel v. Landry, 39 La.Ann. 312, it was held that a
nonresident party could be brought into an action of partition by
constructive service. In
Essig v. Lower, 21 N.E. 1090, the
Supreme Court of Indiana thus expressed its views on the
question:
"It is also argued that the decree in the action to quiet title,
set forth in the special finding, is
in personam, and not
in rem, and that the court had no power to render such
decree on publication. While it may be true that such decree is not
in rem, strictly speaking, yet it must be conceded that it
fixed and settled the title to the land then in controversy, and to
that extent partakes of the nature of a judgment
in rem.
But we do not deem it necessary to a decision of this case to
determine whether the decree is
in personam or
in
rem. The action was to quiet the title to the land then
involved, and to remove therefrom certain apparent liens. Section
318, Rev.Stat. 1881, expressly authorizes the rendition of such a
decree on publication."
This was since the decision in
Hart v. Sansom, as was
also the case of
Dillon v. Heller, 39 Kan. 599, in which
Mr. Justice Valentine, for the court, says:
"For the present, we shall assume that the statutes authorizing
service of summons by publication were strictly complied with in
the present case, and then the only question to be considered is
whether the statutes themselves are valid; or, in other words, we
think the question is this: has the state any power, through the
legislature and the courts or by any other means or
instrumentalities, to dispose of or control property in the state
belonging to nonresident owners out of the state where such
nonresident owners will not voluntarily surrender
Page 134 U. S. 323
jurisdiction of their persons to the state, or to the courts of
the state, and where the most urgent public policy and justice
require that the state and its courts should assume jurisdiction
over such property? Power of this kind has always been exercised
not only in Kansas, but in all the other states. Lands of
nonresident owners as well as of resident owners are taxed and sold
for taxes, and the owners may thereby be totally deprived of such
lands although no notice is ever given to such owners except a
notice by publication, or some other notice of no greater value,
force, or efficacy.
Beebe v. Doster, 36 Kan. 666, 675-677.
Mortgage liens, mechanics' liens, materialmen's liens, and other
liens are foreclosed against nonresident defendants upon service by
publication only. Lands of nonresident defendants are attached and
sold to pay their debts, and, indeed, almost any kind of action may
be instituted and maintained against nonresidents to the extent of
any interest in property which they may have in Kansas, and the
jurisdiction to hear and determine in this kind of cases may be
obtained wholly and entirely by publication.
Gillespie v.
Thomas, 23 Kan. 138;
Walkenhorst v. Lewis, 24 Kan.
420;
Rowe v. Palmer, 29 Kan. 337;
Venable v.
Dutch, 37 Kan. 515, 519. All the states by proper statutes,
authorize actions against nonresidents, and service of summons
therein by publication only, or service in some other form no
better, and, in the nature of things, such must be done in every
jurisdiction, in order that full and complete justice may be done
where some of the parties are nonresidents. We think a sovereign
state has the power to do just such a thing. All things within the
territorial boundaries of a sovereignty are within its
jurisdiction, and generally, within its own boundaries, a
sovereignty is supreme. Kansas is supreme, except so far as its
power and authority are limited by the Constitution and laws of
United States, and within the Constitution and laws of the United
States, the courts of Kansas may have all the jurisdiction over all
persons and things within the state which the Constitution and laws
of Kansas may give to them, and the mode of obtaining this
jurisdiction may be prescribed wholly, entirely, and
exclusively
Page 134 U. S. 324
by the statutes of Kansas. To obtain jurisdiction of anything
within the State of Kansas, the statutes of Kansas may make service
by publication as good as any other kind of service."
Turning now to the decisions of this Court, in
Boswell's
Lessee v. Otis, 9 How. 336,
50 U. S. 348,
was presented a case of a bill for a specific performance and an
accounting, and in which was a decree for specific performance and
accounting, and an adjudication that the amount due on such
accounting should operate as a judgment at law. Service was had by
publication, the defendants being nonresidents. The validity of a
sale under such judgment was in question. The court held that
portion of the decree, and the sale made under it, void, but, with
reference to jurisdiction in a case for specific performance alone,
made these observations:
"Jurisdiction is acquired in one of two modes: first, as against
the person of the defendant, by the service of process, or second
by a procedure against the property of the defendant within the
jurisdiction of the court. In the latter case, the defendant is not
personally bound by the judgment beyond the property in question.
And it is immaterial whether the proceeding against the property be
by an attachment or bill in chancery. It must be substantially a
proceeding
in rem. A bill for the specific execution of a
contract to convey real estate is not strictly a proceeding
in
rem in ordinary cases, but where such a procedure is
authorized by statute on publication without personal service or
process, it is substantially of that character."
In the case of
Parker v.
Overman, 18 How. 137, the question was presented
under an Arkansas statute -- a statute authorizing service by
publication. While the decision on the merits was adverse, the
Court thus states the statute, the case, and the law applicable to
the proceedings under it:
"It had its origin in the state court of Dallas County,
Arkansas, sitting in chancery. It is a proceeding under a statute
of Arkansas prescribing a special remedy for the confirmation of
sales of land by a sheriff or other public officer. Its object is
to quiet the title. The purchaser at such sales is authorized
to
Page 134 U. S. 325
institute proceedings by a public notice in some newspaper,
describing the land, stating the authority under which it was sold,
and"
"calling on all persons who can set up any right to the lands so
purchased, in consequence of any informality or any irregularity or
illegality connected with the sale, to show cause why the sale so
made should not be confirmed."
"In case no one appears to contest the regularity of the sale,
the court is required to confirm it on finding certain facts to
exist. But if opposition be made, and it should appear that the
sale was made 'contrary to law,' it became the duty of the court to
annul it. The judgment or decree in favor of the grantee in the
deed operates 'as a complete bar against any and all persons who
may thereafter claim such land in consequence of any informality or
illegality in the proceedings.' It is a very great evil in any
community to have titles to land insecure and uncertain, and
especially in new states, where its result is to retard the
settlement and improvement of their vacant lands. Where such lands
have been sold for taxes, there is a cloud on the title of both
claimants which deters the settler from purchasing from either. A
prudent man will not purchase a lawsuit or risk the loss of his
money and labor upon a litigious title. The act now under
consideration was intended to remedy this evil. It is in substance
a bill of peace. The jurisdiction of the court over the controversy
is founded on the presence of the property, and, like a proceeding
in rem, it becomes conclusive against the absent claimant,
as well as the present contestant. As was said by the court in
Clark v. Smith, 13 Pet.
203, with regard to a similar law of Kentucky:"
"A state has an undoubted power to regulate and protect
individual rights to her soil, and declare what shall form a cloud
over titles, and, having so declared, the courts of the United
States, by removing such clouds, are only applying an old practice
to a new equity created by the legislature, having its origin in
the peculiar condition of the country. The state legislatures have
no authority to prescribe forms and modes of proceeding to the
courts of the United States; yet, having created a right, and at
the same time prescribed the remedy to enforce it, if the remedy
prescribed be substantially consistent with the ordinary modes
Page 134 U. S. 326
of proceeding on the chancery side of the federal courts, no
reason exists why it should not be pursued in the same form as in
the state court."
"In the case before us, the proceeding, though special in its
form, is in its nature but the application of a well known chancery
remedy. It acts upon the land, and may be conclusive as to the
title of a citizen of another state."
In the case of
Pennoyer v. Neff, 95 U. S.
714,
95 U. S. 727,
95 U. S. 734,
in which the question of jurisdiction in cases of service by
publication was considered at length, the Court, by MR. JUSTICE
FIELD, thus stated the law:
"Such service may also be sufficient in cases where the object
of the action is to reach and dispose of property in the state, or
of some interest therein, by enforcing a contract or lien
respecting the same, or to partition it among different owners, or,
when the public is a party, to condemn and appropriate it for a
public purpose. In other words, such service may answer in all
actions which are substantially proceedings
in rem. . . .
It is true that, in a strict sense, a proceeding
in rem is
one taken directly against property, and has for its object the
disposition of the property, without reference to the title of
individual claimants; but in a larger and more general sense, the
terms are applied to actions between parties, where the direct
object is to reach and dispose of property owned by them, or of
some interest therein. Such are cases commenced by attachment
against the property of debtors, or instituted to partition real
estate, foreclose a mortgage, or enforce a lien. So far as they
affect property in the state, they are substantially proceedings
in rem, in the broader sense which we have mentioned."
These cases were all before the decision of
Hart v.
Sansom.
Passing to a case later than that,
Huling v. Kaw Valley
Railway, 130 U. S. 559, it
was held that in proceedings commenced under a statute for the
condemnation of lands for railroad purposes, publication was
sufficient notice to a nonresident. In the opinion, MR. JUSTICE
MILLER, speaking for the Court, says:
"Of course the statute goes upon the presumption that since all
the parties cannot be served personally with such notice, the
publication, which is designed
Page 134 U. S. 327
to meet the eyes of everybody, is to stand for such notice. The
publication itself is sufficient if it had been in the form of a
personal service upon the party himself within the county. Nor have
we any doubt that this form of warning owners of property to appear
and defend their interests, where it is subject to demands for
public use when authorized by statute, is sufficient to subject the
property to the action of the tribunals appointed by proper
authority to determine those matters. The owner of real estate who
is a nonresident of the state within which the property lies cannot
evade the duties and obligations which the law imposes upon him in
regard to such property by his absence from the state. Because he
cannot be reached by some process of the courts of the state,
which, of course, have no efficacy beyond their own borders, he
cannot therefore hold his property exempt from the liabilities,
duties, and obligations which the state has a right to impose upon
such property, and, in such cases, some substituted form of notice
has always been held to be a sufficient warning to the owner of the
proceedings which are being taken under the authority of the state
to subject his property to those demands and obligations; otherwise
the burdens of taxation, and the liability of such property to be
taken under the power of eminent domain, would be useless in regard
to a very large amount of property in every State of the
union."
In this connection, it is well to bear in mind that by the
statutes of the United States, in proceedings to enforce any legal
or equitable lien or to remove a cloud upon the title of real
estate, nonresident holders of real estate may be brought in by
publication, 18 Stat. 472, and the validity of this statute, and
the jurisdiction conferred by publication, have been sustained by
this Court.
Mellen v. Moline Iron Works, 131 U.
S. 352.
These various decisions of this Court establish that in its
judgment, 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 into court only by publication, and
that is all that is necessary to sustain the validity of the decree
in question in this case.
Page 134 U. S. 328
Nothing inconsistent with this doctrine was decided in
Hart
v. Sansom, supra. The question there was as to the effect of a
judgment. That judgment was rendered upon a petition in ejectment
against one Wilkerson. Besides the allegations in the petition to
sustain the ejectment against Wilkerson were allegations that other
defendants named had executed deeds, which were described, which
were clouds upon plaintiffs' title, and, in addition, an allegation
that the defendant Hart set up some pretended claim of title to the
land. This was the only averment connecting him with the
controversy. Publication was made against some of the defendants,
Hart being among the number. There was no appearance, but judgment
upon default. That judgment was that the plaintiffs recover of the
defendants the premises described;
"that the several deeds in plaintiffs' petition mentioned be,
and the same are hereby, annulled and cancelled and for naught
held, and that the cloud be thereby removed,"
and for costs, and that execution issue therefor. This was the
whole extent of the judgment and decree. Obviously, in all this
there was no adjudication affecting Hart. As there was no
allegation that he was in possession, the judgment for possession
did not disturb him, and the decree for cancellation of the deeds
referred specifically to the deeds mentioned in the petition, and
there was no allegation in the petition that Hart had anything to
do with those deeds. There was no general language in the decree
quieting the title as against all the defendants, so there was
nothing which could be construed as working any adjudication
against Hart as to his claim and title to the land. He might
apparently be affected by the judgment for costs, but they had no
effect upon the title. So the Court held, for it said:
"It is difficult to see how any part of that judgment (except
for costs) is applicable to Hart, for that part which is for
recovery of possession certainly cannot apply to Hart, who was not
in possession, and that part which removes the cloud upon the
plaintiffs' title appears to be limited to the cloud created by the
deeds mentioned in the petition, and the petition does not allege,
and the verdict negatives, that Hart held any deed. "
Page 134 U. S. 329
An additional ground assigned for the decision was that if there
was any judgment (except for costs) against Hart, it was, upon the
most liberal construction, only a decree removing the cloud created
by his pretended claim of title, and therefore, according to the
ordinary and undisputed rule in equity, was not a judgment
in
rem, establishing against him a title in the land. But the
power of the state by appropriate legislation to give a greater
effect to such a decree was distinctly recognized both by the
insertion of the words "unless otherwise expressly provided by
statute" and by adding:
"It would doubtless be within the power of the state in which
the land lies to provide by statute that if the defendant is not
found within the jurisdiction, or refuses to make or to cancel a
deed, this should be done in his behalf by a trustee appointed by
the court for that purpose."
And of course it follows that if a state has power to bring in a
nonresident by publication for the purpose of appointing a trustee,
it can in like manner bring him in and subject him to a direct
decree. There was presented no statute of the State of Texas
providing directly for quieting the title of lands within the state
as against nonresidents brought in only by service by publication,
such as we have in the case at bar, and the only statute cited by
counsel or referred to in the opinion was a mere general provision
for bringing in nonresident defendants in any case by publication,
and it was not the intention of the court to overthrow that series
of earlier authorities, heretofore referred to, which affirm the
power of the state, by suitable statutory proceedings, to determine
the titles to real estate within its limits as against a
nonresident defendant, notified only by publication.
It follows from these considerations that the first question
presented in the certificate of division -- the one heretofore
stated, and which is decisive of this case -- must be answered in
the affirmative.
The judgment of the circuit court is reversed, and the case
remanded for further proceedings in accordance with the views
herein expressed.