Bre covenants of title; but we are satisfied that here there was a
covenant of title; that it was an ordinary deed of bargain and sale with such covenant, the result of which was that eo instanti, when Frederick Ambs acquired the legal title from the party against whom he held this bond, it vested iu Peter Ambs, his grantee, the title uuder the deed made long before. There was no space of time when this lien could attach. The making of the deed, through Frederick Ambs, transferred at once, instantly, without a moment's delay, the title, and thus was acquired by Peter Ambs, to whose benefit it inured. The lien of the judgment did not attach while the title was in that transition state. The result of that is that the plaintiff in this case, who claims under that deed, has a just right; and that the title set up under this judgment should be declared null and void; and that the plaintiff, as far as this portion of the property is concerned, is entitled to the relief claimed, as against these defendants holding under that judgment sale; and that is the decree of this court. There is also a defense of a tax title, which Judge NELSON has examined, and which he states establishes no title. I think it was shown that that was not a valid title, and the plaintiff should be relieved as against it. Therefore the relief is complete against the defendants, except as to those four lots already described. A decree will be entered accordingly.
KING, Sheriff, etc., v. DUNDEE MORTGAGE & TRUST INVESTMEMT Co., Limited.
(Oircuit Oourt, 1.
Oregon. July 3, 1886.)
EQUITy-BILL OF REVIEW-PARTIES.
Where the defendants in a decree were not necessary parties to the suit, one or more of them may maintain a bill of review to reverse the same without making the co-defendants parties thereto. A decree of the United States circuit court will not be reversed, on a bill of review therein, because in the mean time the state court has put a construction on a clause of the state constitution contrary to that of the circuit court in making said decree.
SAME-DECREE IN UNITED STATES CIRCUIT COURT-BILL OF REVIEW.
Bill of Review. James F. Watson, for plaintiffs. William H. Effinger, for DEADY, J. This is a bill of review, brought to reverse 8 decree given by this court on September 4, 1884, in a suit wherein the defendant herein was the plaintiff, and the plaintiffs herein and sundry others were the defendants. The original srlit was brought to restrain the plaintiffs herein, Sol King, as sheriff of Benton county, and v,28F.no.1-3
In October, 1884, the supreme court of the state in Crawford v. (;inn Co., 11 Or. 482, S. C. 5 Pac. Rep. 738, decided that the mortgage tax law was not nnconstitutional for want of uniformity, because a two-county mortgagEl, though exempt from its operation, was taxed as a solvent debt, under the old law, in the county where the creditor residod; and that said law, although operating only in particular cases, was not a special one, because under section 27 of article 4 of the constitution, which declares: "Every statute shall be considered a public law, unless otherwise declared in the statute itself, "-it is a public one, and therefore a general one. The defendant demurs to the bill for the non-joinder of the co-defendants of the plaintiffs herehl, in the original suit, and that there is no error in the record cognizable or relievable in this suit. The objection that all the defendants in the original suit onght to have been made parties plaintiff in this is not well taken." It is questionable whether the plaintiff had a right to join the several parties as defendants in the original bill as it did. At most, they were only proper parties, but not necessary ones. The interest of these several counties and school-districts was separate and distinct, and the only
KING fJ. DUNDEE MORTGAGE &: TRUST INVEST. CO.
thing in common between them was the questionof the validity of the law under which they claimed the right to collect the several taxes levied by them. So, here, the interest of these plaintiffs in the operation of this decree, and its reversal, is distinct and separate from their co-defendants therein, and they may maintain this suit without making them parties thereto. And now, under the circumstances, ought this decree to be reversed. There is no error apparent on the face of the record, and the suggestion of error is based wholly on the difference between the judgment o£ the court in the case and that in Crawford v. Linn Co. Without stopping to consider which of these decisions is nearest right, or most reasonable, and admitting that this court ought to follow the construction given to the constitution of the state by its own courts in this matter, is it under any obligation to reverse a decision heretofore made by it simply because it does not conform to a subsequent ruling of the state court? When this decree was made this court followed the rulihgs of the state court on all the points in the case concerning which the oi-acle had then spoken. But whether the act was passed in violation of section J of arti.cle 9 of the constitution, which requires the legislative assembly to "provide ,by law for uniform and equal rate of assessment and taxation," or in violation of section 23 of article 4 thereof, which forbids the passage of "special or local laws" "for the assessment and collection of taxes," had not then been considered by the state court. Under the circumstances, it was the right and duty of this court to decide these questions for itself, and according to the light then vouchsafed it. If the decree is erroneous, compared with the constitution and law of the state as then construed and understood, it ought to be reversed, otherwise not. While the national courts are bound to follow the settled construction given by the local court to the state constitution, I am not aware of any rule of law, or consid· eration of public policy, convenience, or comity, that requires the former to go back, and change its judgments or decrees to make them conform to the subsequent rulings of the latter. When this decree was made, it was in strict conformity with the settled construction given to the state constitution by the state court, so far as the latter had gone, and this was all that could have been required. It may be said that the decision of the state court in Crawford v. Linn Co. did not change the law or legal significance of the constitution, but only declared what it was, as well when this decree was given as since. But suppose this court in making this decree had followed a prior decision of the state court, and -afterwards the latter had changed front on the question; and that this is a supposable case,-is common knowledge,-because the at least sometimes, happens; would this court be bound, on a bill of review, to reverse its decree, made in conformity with the constitution of the state as then expounded by the state tribunal, because the latter had since
proper to give that instrument a different construction? Certainly not; and, if not, why? Because the decree was, so far as could be known, confessedly right when made, and could not become erroneous by a change the subsequent rulings of the state court. Substantially, the case under consideration is in a like con. dition. In the absence of any construction of the state constitution in the particulars in question, it was, as I have said, the right and duty of this cQurt to construe it, pro re nata, for itself. In that ruling, judged by the then existing exposition of that instrument, there is, in my judgment, no error; and the subsequent contrary ruling 'of the state court in Orawford v. Linn 00., although a guide to this court in future ,cases, Qannot operate retroactively, and make a decree erroneous which was originally valid. The demurrer is sustained, and the bill dismissed.
and another v. KAMPMANN.
Texas. June 28,1886.)
ACTION-How COMMENCED-ABSENT PARTIES-SEIZURE.
When the personal property of an absconding party or debtor is seized, there must be a seizure in rem}' but when the property in question is real estate, an actual seizure is not necessary if a lien is sought to be foreclosed that is sufficient to give jurisdiction to the court. Where a judgment is collaterally attacked. in order to succeed, the plaintiff must show. not merely that it was voidable, but that it was absolutely void. Proceedings to foreclose a lien are proceedings in rem, and personal service on absent parties is not essential to give the court jurisdiction. While the citation commanding the publication of a notice of action should state that the paper or sheet in which the publication is to be made is a newspaper, an omission so to do is a mere irregularity, and cannot be relied on as vitiating a judgment which is collaterally attacked.
JUDGMENT-How ATTACKED COLLATERALLY.
WRIT AND PRocEss-NoN-RESIDENT PARTIES-PEI\SONAL SERVICE-FORECLOSURE.
SAME-SUMMONS BY PUBLICATION-REQUISITES-IRREGUJ,ARITIES.
The officer's return that a given notice has been published for four successive weeks should state the separate days on which such notice was published, but a failure so to do is only an irregularity, which cannot be relied on in a collateral attack upon a judgment.
Trespass, to Try Title. Oa. Jeton &: Morris, for plaintiffs. Waelder et Upson, for defendant. TURNER, J. Oue 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