,
BENNETT
'fl. -FENTON.
283
states, acting in pursuance of that decree, would not have provided for a larger grant. From these various considerations, it seems to me dear that the grant in controversy was not intended to be, and was not; a conveyance subject to defeasance, but that it amounted only to a designation and setting apart of the tract as a tract within which the petitioners could establish a colony in conformity to the colonization law, and upon such establishment obtain title to a fixed quantum of land within the tract. As there is no pretense that one was ever established, no title to anything It follows that the complainant holds nothing by virtue of ever this so-called grant, and the demurrers must be sustained, and it is so ordered.
BENNETT t1. FENTON
et al.
(Circuit Oourt, D. Minnesota. February 19, 1800.) QuIETING TITLE-SERVICE BY PUBLICATION-J"UDGME:NT.
Undel' Gen. St. Minn. 1878, o. 75, § 2,w)licb autborizes one in possession of land sue any person claiming an .interest "for the purpose of determining such adverse claim," a jUdgment in such an action against a non-resident defendant, upon service by publication, is valid, the action being in the nature of a proceeding
inrern.
At Law. Ejectment by James Bennett against William Fenton and the city of St. Paul. Warner &- Lawrence and S. &- O. Kipp, for plaintiff. O. E.Holman and Cole, BramhaU « Morris, for defendants. SHmAs, J. This action was brought for the purpose of determining the title and consequent right of possession to certain realty situated in Ramsey county, Minn. The plaintiff derives title from the original patentee, and the defendants from a sale for delinquent taxes, a deed based thereon, and a decree rendered in the district court of Ramsey county in a case entitled Samuel D. Lord v. John J. Henry, which purports to quiet the. title to said realty in said Lord as against the claims of said Henry, the then holder of the patent title, the present defendants holding under Lord. The parties have in writing stipulated that if the proceedings had and decree rendered in said case of Lord v. Henry are valid and binding upon said Henry, then judgment is to be rendered in this case for defendants; but if the same are void and of no effect in this -court, then judgment is to go in favor of plaintiff. The sale question for determination, therefore, is that of the validity or invalidity of the decree in tlie named case of Lord v. Henry. When that case was brought in the state court, Henry was a non-resident, and service of the summons was had by publication only, And no appearance was entered for the defendant. The validity of the d.ecree is questioned mainly on the grounds that the action was purely personal, there being no
FEDERAL REPORTER, vol.
41.
'personalsel'viceof the: summons on the defendant within the jurisdiction of the court, and no appearance entered, the court rend6l'ing the decree was: without jurisdiction, and hence the decree is invalid. Section 2, c. 75.0en. St. Minn. 1878, is as follows: .. Action to Determine Adverse Claim. . An action maybe brought by any persoll in possession, by himself or his tenant, of real property, against any person who claims an estate or interest therein or lien upon the same, adverse to him, for the purpose of determining such ad verse claim, estate, lien, or .interest;.llnd any person title to vacant or unoccupied real estate may bring an action against any person claiming an estate or interest to him, for the purpose of determining such adverse claim, 'and the rights of the parties. respectively... There are also contained in the statutes of the state provisions izing the appointment, by non-resident owners of realty, of agents, to whom notice shall' be given of proceedings affecting the realty; and alsoauthorizing the service by Ptlblication of the summons in given cases, when personal service t1:11:,reo(cannot be had. In the case of Lord v. Henry the complaint was in the following form, omitting the caption: "Plaintiff complains of the above·named defendant, and alleges and shows to the court: . That the plaintiff now is, and for a long time past has been, the owner of the iolloWingdescribed real estate, situate and being in the county of .Ramsey and state of Minnesota, and described as follows, to-wit: Lot nllmbt'red four (4) of block one. (1,) in Bazille and Roberts' addition to West Saint Paul. according to the recorded plat thereof on file with and in the offiee,ofitQe of deedsin and for. said county and state. That said defendant claims an estate and interest in said real estate adverse to this plaintiff, which said claim is unlawful and wrongful, and is an injury to plaintiff's said titleto said real estate, and that this action is brought for the purpose of determining such adverse claims. estate. and hiterest. That said property is vacant and unoccupied, and uniinproved. Wherefore plaintiff prays of the court as follows, aga:inst said defendant: Binlt, that plaintiff. bequil:'ted in. his title to said a1;love-described premisl:"s free and clear of any estate, or claim held or claimed by said defendant; second, that said defendant' be perpetually enjoined from cllliming and asserting any :right, title, estate, and interest in or to said premises. or any part of 'the same, adverse to this. plaihtiff; third, for plaintiff's costs and disbul'sement!s herein, and for such other and fuitherrelief as he may be. entitled to receive." As personal service of the Summons could not be made upon the fendant, Henry, publication thereof was' made under the provisions of the st'lttute, and on the 17th day of August, 1882, a decree in the following form was rendered by the court: '''£he above' cause having been dUly'tried by said court without a jury, Messrs. Read & notert appearing as attorneys for the plaintiffs, there being no appearance for the defendant, the summons having been duly served .by publication, and 'the said court having on the 17th day of December,ISSl, duly made and. filed its findings and decision in saidcaufle in filVor of said plaintiff, and against said defendant: now, upon advisement, and upon mopursuant to said decision, and as therein tion of plaintiff's l1aid directed, it is by this court hereby ordered, adjudged. and decreed as follows: That said plaintiff, I::lamuel D.Lord, is the OWller in fee·simpleof the lot and land described in. the complaint 'iIi.. this action, being and isituate in said !tam·
BEN'N'ETT tl. FEN'T05.
285
seycountyand state of Minnesota, and described as follows, to-wit: * * That said defendant is not the owner thereof, and has no right, title, or interest or estate therein whatsoever, and that said plaintiff's title thereto is forever quieted in him. That said plaintiff recover judgment herein against said defendlfllt for his costs and disbursements of this action. And that a eel'titled copy of this decree be recorded in the office of said register of deeds of said Ramsey county, Minn." The question of the force to be given to. judgments and decrees rendered jn Cases wherein service of the summons has been had by publication only , has been repeatedly before the supreme court. In Pennoyer v.Neff, 95 U. S. 714, it is held that substituted service by publication is sufficient to inform a non-resident of the object of proceedings taken, where the property is brought under the control of the court by seizure or sonle equivalent act, but, when the suit is brought to determine his personal rights and obligations,-that is, when it is merely in IJerSOnam, -such service upon him isineffectual for any purpose. In Hart v. Sanaom, 110 U. S. 151, 3 Sup. Ct. Rep. 586, it was held that"Generally, if not universally, equity jurisdiction is exercised in personam. and not in rem, and depends upon the control of the court over the parties. by reason of their presence or residence, and not upon the place where the land lies in regard to which relief is sought. Upon a bill for the removal of a cloud upon title, as upon a bill for the specific performance of an agreement to convey. the decree, unless otherwise expressly provided by statute. is clearly not ajudgment in rem, establishing a title inland. but operates in persQnam only. by restraining the qefendant from asserting his claim, and directing him to deIlv.er up his deed to be canceled, or to execute a relief to the plaintij!. * * * Such a decree, being in per80nam merely. can only be supported, against a person who is not a citizen or resident of the state in which it is rendered, by actual service upon him within its jurisdiction; and constructive by publication in .a newspaper is not sutiicient." In\Bryan v. Kennett, 113U. S. 179,5 Sup. Ct. Rep. 407, a· decree 'based 'upon publication of notice to non-resident minors, and that:the right. title, and interest of such non-resident defendants should be vested in the complainant by force of the decree itself, was sustained. In Freeman v. AldersfYn, 119 U. S. 185, 7 Sup. Ct. Rep. 165, it was :held tHat service by publication under the state statute Was sufficient to Bustainadecree determining the right of possession and for partition of the land, but would not justify the rendition of a personal judgment against the non'-resident for the costs of the proceeding. The general distinction drawn in is that when the proceedings are in personam, and the decree operates either by way of restriction or mandatorily upon the perBon, then the service by publication only, upon a non-resident, does not conferjurisdiction over the person of the defendant, who is beyond the territorial jurisdiction of the state wherein the suit is pending; but, when the proceedings are in rem or are of that nature, then, so long as the dedree or judgment based upon substituted service is confined in its opera"non to the property within the jurisdiction and control of the (Jourt, it WIll be upheld. Proceedings in partition, for foreclosure of mortgages or other like liens, for condemnation of property in the exercise-of the right ofeminent:domain, and those in which an attachment has-been i&:
*
a8& sued and levied; have been held to be-in the natur(l()fptoceedings in rem. sufficient to sustain the decree, it, affects' theproperWioiqnestion; When in Hart v. S<i,'tl8q'rnWliS it held to lay ,Clown lherule that a qujetipg' tlle')iti,e to realty operated onlY,as a decree in personam, and therefore was of no force, when. bflsed,' only on service· by a .. In of the subsequent cases..decided by thesupreIDe 'court, It IS questIOnable whether too c9nstruction heen given to the language used in that opiniOn; or, ,be more accurate to. say that sufficient and been given to a limiting clause in the it is stated',t4at, il upon a bill for the removal of a cloud as upon a bill performance D! an agreement to c0I,1yey., the decree, unleB¥i otherWIse expressly provIded by statute, .hot a judginenttn, ?:,em,' * * * but operates in personam is only! by restraining the de,fehi;lant from asserting his claim," etc. In other words, if the enforcemE:lntof the decree touching the title is depeildentaolely upon the hiherenf:[lowers of a court of chancery, it is, of nece!lSity, a decree in persemam,'because generally equity jurisdiction is exercised in personam, and' deptmds upon the control of the court over the parties. If, however, there is statutory power given to the court to effectnate its decree by controlling the property, then the proceeding benature a proceedil1gin rem, and in such caseservice by pUbH8J.iion, in case of will confer jurisdiction to deal with tne property. , It'becomes essential, therefore, to ascertain the nature.of the power conferred upon the courts of Minnesota by the statute already quoted, under the provisions of which the suit of Lord v. Henry was instituted. In brief, the purpose of the statute is to enable parties, whether in posrealty, or where the is vacant and unoccupied, to settle adverse claims thereto, aoli ijetermine the ownership, and consequent right of possession, thereto. No suit can be brought under this statute without describing the partic:ularr,:la)ty in question, nor can a compla,nt be so framed as not to limit the litigation to the realty named in the complaint. '1'he real object l;lought to be accomplished is to settle and quiet the title in the complainant, to the particular realty, and the ute provides that the decree rendered after the lapse of a specified time may have the force and effect of a deed. Practically, the decree operates on the land, and it is difficult to see why the same cannot be sustained as well as in cases wherein partition is made, or wherein condemnation ia had for public purpllses.' In some of the decided cases, it is held that to give jurisdiction inTern there must be seizure, in some mode, ofthe GOUl't, for the double purpose of bringing the realty, under process of property up.der control of the court, and of insuring notice to the defendant., In vroceedings for or for condemnation for public ,use, or for foreclosure of a mortgage, a writ or process is not issued for the seizure of the property, alid these proceedings are held to be in rem. lnsueh· cases. the record :shows; at,.the very initiation of the proceeding,
BENNETI' ". FENTON. ;t1
287
the particulrtr property that is sought to be dealt with, and the court obtains control' over the property just as effectually by the initiation of the proceedings as it doeR by the levy of a writ on the same. In cases wherein the right ofaction does not grow out olthe property itself, and where the petition' or bill does not describe any particular property as the subject-matter of the litigation, as in cases for the recovery of debts aided by attachments, it is clear that no property is brought within the control of the court, except through the issuance and levy of process; and in this class of cases such levy is absolutely necessary in order to affect the property by the proceedings taken in the case. So far as notice to the defendant,is conoerned, is not this secured as well by the filing of a bill describing the realty sought to· be affected as by' the issuance of a writ of attaohment,ihe levy thereof, and return by the sheriff or other officer? Such writ and return become part of the files or record of the c3se,and, so far as 'notice to the defendant is concerned, they are not more effectual than the filing of the bill in an action to quiet title. , In the absence of statutory authority for the bringing of an action to quiet title,if a claimant ofrealty invokes the aid of a court of equity to settle the adverse claims made by another, he puts in motion the dinaryequitable powers of the court, which are exercised in per8onam, -that is,through the control of the court over the person of the defend.. ant,-in which case personal service upon the defendant, within the territorilillimits of the jurisdiction of the court, is essential to confer jurisdictionupon the court. In case, however, the state has by statute provided that the title to realty within its bordarR may be settled by a proceeding for the quieting olthe title, wherein the court is required to investigate the title to a particular tract of land, and has provided that, in case an'adverse claimant is a non-resident of the state, service by pub. licatioDmay be made, then the court is not proceeding under itsordinary equitable power with the limitations pertaining thereto, but is proceedingunder th,e power and rights conferred by the statute. Unless it be held that the state can, by proper enactment, provide for a proceeding against the property to quiet the title, and in case of non-residents provide for service by publication or its equivalent, then it is practically put beyond the power of the4State to secure to its citizens the means by which their right and title to realty may be settled. Of the wisdom of statutes providing for actions to quiet titles to land, occupied or unoccupied, there can be no question. Unless! in connection therewith, the right to substituted servicein'case of non-resident claimants can be sustained, thesestatutes will, in many cases, be rendered inoperative. The necessity for, the exercise of jurisdiction over the property in dispute, and the giving of notice by publication to non-residents, is evidenced by ilie fact that so many of. the states have adopted such statutes. Furthermore,the congress of the United States has declared "that When in any suit, commenced in any circuit court of the United States,to enany leglii or equitable lien upon or claim to, or to remove any inoumbrance or lien 'or cloud upon the title to real or' personal property within the district where 8u:chsuit is brought j one or more of the de_
288 fendantstbereinshall not be: an inhabitant of or found within the said districkorshall, not voluntarily appear thereto,it shall be lawful for the court to make an order," etc. { tliat is to say, service in such case upon' such .absent defendant may be made by publication. 18 St. at Large, p.472, § 8. Under this statute the circuit courts of the United States, as courts of equity, can take jl1ri8diction of proceedings to settle adverse . claims to realty, or to remove a cloud from the title thereof, and render a decree which shall bar the claim of an absent defendant served only by publication. This statute confers upon the United States courts the power to remove a cloud from the title to realty without having actual jurisdiction over the person of the defendant by means of personal service, and the statutes of the. state confer the like power upon the courts.. of the state. Where the property is within the state, it seems clear thatthe state can, by appropriate legislation, bring the same under the control of the courts of the state, so that the latter can settle adverse claims therl'lto or remove clouds from the title thereof, even though the adverse claima.nt may be a non-resident of the state" so that personal service upon him cannot be had, thus neoessitating service by publication or its equivalent. It is .admitted that for partition, condemnation, and the like, the deere,a and judgment of the court will bind the property, and through its efiectupon the property will cutoff the claims or rights of identsserved only by publication. It must therefore be admitted that the state can deal with the property within its limits, even though owned by a non"resident, and, in providing a method for quieting the title to realty, it is ex.ercising only the same right aud>power over the land as it does in providing methods for partitioning the same, orcondemnililg it for a, public use. It is not questioned that the state has the right to tax the lands within its borders, although owned by .11 the taxes are not.paid, the landmuy be sold, and the title of the ident owner maybe cut off by proceedings based upon published'notice. It must therefore be true that the state has the right by appropriate ment; in its own interest and.in that of its citizens, not only to provide for the taxation, partitioning,'orcondemnation of realty within its bor.. ders owned by non-residents, but also for the quieting the created to such realty, as against all adverse non-resident :claimants. The limitation upon this power ,of the state is as to the mode of procedure-. It hasnG jurisdiction over the person of the non-resident, and 'therefore can confer none upon its own courts. It has i however, jurisdiction over the property within its limits; and can therefore confer jurisdiction over the same upon its courts. When the state, by provides a mode for quieting the title to lands,occupied or unoccupied, situated within the state, and as an incident thereto provides for giving notice by publi. cation to non-resident claimants :of the pendency of the proceeding,such legislation should be upheld, if by any fair construction of the etatute it can be brought within fhe recognized power of the state. If, by the pro. "'isions of the statute, the decree itself settles the status of the title, and the right to possessiOll and control Of the land, without the necessity Qf
KIMBALL ". TOWN 01' LAKELAND.
289
enforcing the decree by actual control.over the person of the defendant, then the suit and decree directly affect the land, and are in the nature of a proceeding in rem. This being. so, then substitutive service is effectual against non-residents. If the judgment to be pronounced by this court was to be final in this eause, I should feel embarrassed by the made in this circuit. several of which were rendered by the circuit judge, and which, upon the authority of Hart v. SansQm, hold a proceeding to quiet title to be in personam, and therefore ineffectuaL when based upon service by publication. It being understood, however, that it is the settled purpose of counsel to take this case to the'supreme court in order to obtain a final and authoritative decision of the question, it follows that the ruling now made will have little effect other tha.n to determine wbiyh of the parties shall become the plaintiff ill er:rbr. Under these circumstances, I ,pave felt at liberty to considetthe question as one still open for examination, and have, as already indicated, reached the conclusion that the decree rendered in Lord: v. He:nryean be sustained, so far as.it deals with thEl title to the land. This being so, then, under the stipulation of the parties, the judgment must be in favor of the defendant, and it is so ordered.
KIMBALL
'I).
TOWN OF LAKEJ,AND.
(Oircuit Oourt, D. MinnlJ8ota.February 19, 1890.) RAILROAD COMPANIES-MuNICIPAL AID-BoNDS-EsTOPPEL.
Gen. St. Minn. 1878, c. 84, authorizes munillipal corporations to issue railroad aid bouds, provided an· agree)llent is reached between the railroad company and the municipality in either one of two modes. In 1879 this act was amended so as to allow but one mode. of making such agreement. In 1880, town bonds,. were issued! in pursuance of said act, upon an agreement entered into in the mode which haa been repealed. Thebonds recited that they were issued unde!' said act, and that all the conditions of .he a!1t had been complied with. that the town was estopped from denying the validity of the bonds as against a bona fide holder for value.
.
;
At Law. Action by John Kimball against the town of Lakeland, to recover terest on certain bonds. Warner & Lawrence, for plaintiff. L. L. Manwaring, and Olapp & Macartney, for defendant. SHIRAS, J. On theIst day of JQly, 1880, the town of Lakeland,a municipal corporation of Washington county, Minn., issued bonds, in the sum of $5,000, in aid of the construction of the Hastings & Stillwater Railroad, payable on the 1st day of July, 1900, with interest at the rate of 7 per cent. per annum, payable semi-annually, according to the terms of interest coupons attachad to said bonds. Having defaulted in the payment of interest, the present action was commenced, in 1886, to recover $1;925,.the interest then due and unpaid; the plaintiff having become the owner oUhe bon<;ls by purchase from the prior holders thereof. v,41F.no.5-19