Laughlin v. Vogelsong

¶11. It is contended by the plaintiff that the decree in cause No. 3482 is, as to her, a nullity, for the reason that at the time of the filing of the petition in that case, and during the pendency of the action, she resided in this state, and that, as to her, the service by publication was illegal. But the affidavit for publication alleged she was a non-resident of the state, and the court found that all the defendants had been duly served with notice of the pendency of the cause of action and the prayer'of the petition. Such finding of the court cannot be collaterally impeached. Harris v. Hardeman, 14 How. 334; Lessee of Fowler v. Whitman, 2 Ohio St. 271; Buchanan v. Roy’s Lessee, 2 Ohio St. 251. If it be suggested that this is a proceeding in equity, and that the court has power to relieve against a fraudulent judgment or decree, it is sufficient to say no such relief is prayed for.

¶22. It is further contended by the plaintiff that the decree against her in cause No. 3482 is a nullity for the reason that the pleadings, records and proceedings in that case were not sufficient to warrant any judgment, order or decree of the court against her. The petition in that case contains only this averment as to her: “The defendants, John W. Custer and Henry L. Custer and Mary B. Laughlin, had or claim to have some interest in or lien upon said premises ; the amount and nature of the same is not fully known to said plaintiff, and she avers that they should be served with summons in this action and required to set up their interests or be forever barred of the same.” She prays the court to fix the amount and priority of the different liens. She also avers that her lien is prior and superior to all others. Upon this petition the court found that the mortgage of Clara A. Hoover is a good, valid *413and first lien on the premises described in the petition, and ordered the sale of the same to pay the amount found due. After the sale Clara H. Hoover moved the court to re-docket the case and confirm the sale. The court confirmed the sale, ordered a deed made to the purchaser, and then, without any additional pleading or motion, ordered and decreed “that the title, interest and estate of the defendants John W. Yogelsong, Emma O. Yogelsong, J. L. Custer, Henry L. Custer, and Mary B. Laughlin, and each of them, be and the same hereby is vested in the said plaintiff, and that the plaintiff's title to and in said premises be quieted as against each and all of said defendants, and that they and each of them are by the court forever barred from in any manner interfering with said real estate or plaintiff's title or possession thereof.”

¶3By what authority did the court make this decree ? The petition avers that Mary B. Laughlin “ has, or claims to have a lien upon or interest in the premises.” That was true— she did have, and claims to have, a lien upon the premises. She was not called upon to deny that averment. The petition further avers that the lien of Clara A. Hoover is superior to that of Mary B. Laughlin, which was then the truth, and Mary B. Laughlin could not deny it. But there is no allegation in the petition that Mary B. Laughlin did not have a lien upon, or interest in, the premises.

¶4That it is within the jurisdiction of the court of common pleas to quiet title to real estate, and to enjoin persons from interfering with the title and possession of the owner, there can be no doubt. It is just as clear, however, that this jurisdiction must be exercised according to law. Before the court can make a valid and binding decree, its action must be invoked by the methods established by law for judicial procedure. It cannot exercise its high powers sua sponte, so as to deprive a citizen'of his property. It cannot foreclose a mortgage upon pleadings in replevin, or quiet title to real estate in an action for libel or slánder. Before it can lawfully act upon a subject matter within its jurisdiction, the parties to be af*414fected must be served with notice, and the action of the court must be invoked by pleadings or motion. A judgment or decree rendered without pleadings would be as much a nullity as a judgment or decree rendered without notice by summons or publication.

¶5As stated in Sheldon’s Lessee v. Newton, 3 Ohio St. 494, “The power to hear and determine a cause is jurisdiction, and it is coram judice whenever a case is presented which brings this power into action.

¶6“ But before this power can be affirmed to exist, it must be made to appear that the law has given the tribunal capacity to entertain the complaint against the person or thing sought to be charged or affected; that such complaint has actually been preferred, and that such person or thing has been properly brought before the tribunal to answer the charges therein contained.

¶7“ When these appear, the jurisdiction has attached; the right to hear and determine is perfect; and the decision of every question is but the exercise of the jurisdiction thus conferred ; and whether determined rightfully or wrongfully, correctly or erroneously, is alike immaterial to the Amlidity, force and effect of the final judgment when brought collaterally in question.

¶8“On the other hand, if the court proceed without jurisdiction, it is unimportant how technically correct, or precisely certain, in point of form its record may appear ; its judgment is void to every intent and for every purpose ; and must be so declared in every case in which it is presented.”

¶9To the same effect is the case of Spoors v. Coen, 44 Ohio St. 497. In that case it was held that:

¶10“The judgment of a court upon a subject of litigation within its jurisdiction, but not brought before it by any statement or claim of the parties, is null and void, and may be collaterally impeached.”

¶11In Strobe v. Downer, 13 Wis. 11, Downer had purchased lands at a sale made in a foreclosure proceeding, on Avhich *415'Strobe, by assignment from one Weimer, held a prior mortgage. The bill contained an averment that Weimer had, or claimed some interest in the property, and lie was made a party, but he did not answer. The judgment in foreclosure purported to bar him of all right in the premises. In a suit brought to foreclose the mortgage by Strobe, the court treated the question as if Weimer had remained the owner of it, and held that the purchaser under the decree made in the former proceeding took nothing as against Weimer or his assignee. The court said: “ It was stated in the complaint that he claimed an interest (in the land), and there was no allegation against its validity which called on him to defend, and that without any allegation in the complaint contesting his title, he had the right to assume that the proceeding would be conducted upon the theory that his lieu was paramount to that of the plaintiff) and that his'rights were not to be affected by the proceeding.” The case of Lewis v. Smith, 9 N. Y. 502, was cited and approved, where it was held that “the widow was not divested of dower in the lands of her deceased husband, by a decree to that effect, iu a proceeding, to which she was made a-party, for the foreclosure of a mortgage she had not signed.” The bill contained the general allegation that she claimed some interest in the premises, subsequent to the mortgagor or otherwise. Her husband had devised her all his real estate for life, with remainder over; but whether the devise was in lieu of dower or not was not stated. The court held, in a suit for that purpose, that she was entitled to dower in the land, and that she was not barred by the decree in the former suit. Commenting on the averments of the bill, Denio, J., said: “As a devisee of the mortgaged premises and an executrix of the mortgagor, the plaintiff wras a necessary party to the bill. But in her character of his widow, entitled to dower by virtue of her coverture before the mortgage was given, she had nothing to do with the foreclosure. Having no defense to make to her interest as devisee of the equity of redemption, and being unable to re*416sist the claim to a decree against her for any ultimate deficiency, she had no motive for answering the bill. It made no claim, and prayed for no relief, which she could defend against.” Edwards, J., also commented upon the fact that “the complainant in the foreclosure suit made no allusion to the claim of dower.” See, also, the case of Williamson v. Probasco, 4 Halstead Chancery, 571.

¶12The case before us cannot be distinguished from the cáses last cited. We hold, therefore, that the decree in cause No. 8482, in so far as it quiets the title of Clara A. Hoover against the claim of Mary B. Laughlin, is a nullity, and that the decree in that action is no bar to the plaintiff’s actioh.

¶138. The Collins Manufacturing Company owned the premises and mortgaged the same to Clara A. Hoover. The Collins Manufacturing Company then conveyed the premises by warranty deed to John W. Vogelsong. Vogelsong and his wife then executed and delivered the mortgage to Mary B. Laughlin, upon which this action is brought, in which they covenant that the promises are free and clear from all incumbrances, and that they will warrant and defend the same ¡against all lawful claims and demands whatsoever. This mortgage was immediately left for record, and was recorded. This was prior to the commencement of cause No. 3482. The premises were then conveyed to Clara A. Hoover, by sheriff’s deed in her foreclosure proceeding in cause No. 3482. Clara A. Hoover then conveyed the premises to the same John W. Vogelsong. He conveyed to Hale, Hale conveyed to Spring, and Spring to Winemiller, by warranty deeds. Winemiller now claims to be subrogated to all the rights of Clara A. Hoover in and to said premises. We presume he means that if the plaintiff’s action is not barred by the decree in cause No. 3482, that the plaintiff' is only entitled to a decree ordering the premises to he sold subject to the prior lien of Clara A. Hoover.

¶14Vogelsong and wife, in their mortgage to the plaintiff, covenanted with the plaintiff “ that at and until the ensealing of *417these presents, we were well seized of the above described premises as a good and indefeasible estate in fee-simple, and have good right to bargain and sell the same in manner and form as above written^ and that the same are free and clear from all incumbrances whatsoever, and that we will warrant and defend said premises with the appurtenances thereunto belonging to the said grantee, her heirs and assigns forever against all lawful claims and demands whatsoever.” We have seen that the lien of the plaintiff was not cancelled or extintinguished by the decree in cause No. 3482.

¶15After the sale to Clara A. Hoover she conveyed all the title she had to Vogelsong, and that was all the estate of Vogelsong before the sheriff’s sale, and her own mortgage lien. We may say that for the purpose of protecting her equitable rights, the mortgage lien was not merged in her title by purchase, and that this equity also passed in her deed to Vogelsong. Could Vogelsong sucessfully assert it against thp mortgage lien of the plaintiff? If he could, he would get the benefit of a lien which he covenanted did not exist, and which he covenanted he would defend the plaintiff against. An after-acquired title will feed the estoppel created by a conveyance with warranty, and convert the same to an interest in the grantee, so as to conclude the grantor and all persons claiming under him. 2 N. E. 502. Covenants of warranty in a mortgage have the sanae effect and construction as those of a deed. Jones on Mort. 68; 37 Fed. Rep. 296. Hence, if the right of subrogation passed to Vogelsong, it passed from him to Mary B. Laughlin, so as to sustain the covenants of his mortgage. Vogelsong being estopped, those claiming under him, including Winemiller, are estopped also.

¶16Demurrer to reply overruled, and decree for plaintiff.