MEYER et al. v. KUHN et al., 65 F. 705

FULLER, Chief Justice, after stating the facts as above, delivered the opinion of the court. I The demurrer rested, substantially, on two grounds: First, that the decree in the partition suit determined the title to the land, and must be given effect as a bar; second, if not, that the tax deed to Kuhn was valid, and vested title in the lands in him, of which he was not divested by the alleged redemption.

The circuit court sustained the demurrer upon the first of these grounds, and was of opinion that complainants should have proceeded to obtain the vacation of the decree in the suit in which it was rendered, as provided by statute, and that, so long as they did not so proceed, that decree was in full force, and must be respected.

By the Code of West Virginia it is provided that “in any suit in equity where the bill states that the names of the persons interested in the subject to be divided or disposed of, are unknown, and makes such persons defendant by the general description of parties unknown, on affidavit of the fact that the said names are unknown, an order of publication may be entered against said unknown parties. * ■' And “on affidavit that a defendant is not a resident of this state * * * an order of publication may be entered against such defendant”; that “every order of publication shall state brieiiy the object of the suit, and require the defendants against whom it is entered, or the unknown parties, to appear within one month after the date of the first publication thereof, and do what is necessary to protect .their interests.” Provision is made for the publication of such order “once a week for four successive weeks in some newspaper published in the county in which the order is made or directed,” etc.; and for posting the same “at the front door of the courthouse of the county where the court is held at least twenty days before judgment or decree is rendered”; and that “wh.cn such order shall have been so posted and published, if the defendants against whom it is entered, or the unknown parties, shall not. appear at the next term of the court, after such publication is completed, the case may be tried or heard as to them.” And it is further provided that “any unknown party or other defendant, who was not served with process in this state and did not appear in the case before the date of such judgment, decree or order, or the representative of such,” may “have the proceedings reheard in the manner and form required * * * and not otherwise,” namely, as provided in relation to attachments, “he may within one year after a copy of such judgment or decree has been or shall be served upon him at the instance of the plaintiff, or within five years from the date of such judgment or decree, if he be not so served, petition to have the proceedings reheard, on giving security for the costs which have accrued and shall thereafter accrue, and such defendant shall be admitted to make defense against any such judgment or decree as if he had appeared in the case before the same was rendered, except that the title of any bona fide purchaser of any property real or personal, sold under such attachment shall not he brought in question or impeached.” Code W.

Va. c. 124, §§ 11-14; Id. c. 106, § 25. If the complainants were not proceeded against as parties to the partition suit, or if they were, yet, as there was no service of process on, nor appearance by, the defendants in that suit other than Kuhn, if they were not so proceeded against that the court obtained jurisdiction over them, the decree therein could not be relied on as a defense to this suit.

Judgments and decrees are open to collateral attack when jurisdiction over the subject-matter or over the person is wanting, and whatever contrariety of view may have been expressed as to the conclusiveness, under particular circumstances, of the action of courts of general jurisdiction, there is no dispute that, when the record affirmatively shows the absence of the steps necessary to obtain jurisdiction, the judgment or decree may be collaterally overthrown. Under

section 1 of

chapter 79 of the Code of West Virginia, tenants in common, joint tenants, and coparceners were compellable to make partition, and the circuit court of the county wherein the estate, or any part thereof, might be, in exercising the jurisdiction in partition, might “take cognizance _of all questions of law, affecting the legal title, that may arise in the proceedings.” By sections 35 and 57 of

chapter 125 "of the Code it was provided that “the defendant in a suit in equity may in his answer allege any new matter constituting a claim for affirmative relief in such suit against the plaintiff or a defendant therein, in the same manner and with like effect as if the same liad been alleged in a cross bill filed by him therein”; and that, when this is done, “the case shall he decided upon the same principles, and the same relief shall he decreed in the case as if a cross bill had been filed to obtain such relief.” Assuming that the defendant Kuhn could, under these sections, have had the question of title, as between himself and his codefendants, adjudicated upon an answer, nevertheless his proceeding in that regard would he subjected to the same tests as if he had sought affirmative relief hv a cross bill.

And it may be said, generally, that tire appearance of a defendant to a cross bill, as between codefendants, should- he enforced in the same manner as the appearance of a defendant to an original bill. Railroad Co. v. Bradleys, 10 Wall. 299; Smith v. Woolfolk, 115 U. S. 143, 5 Sup. Ct. 1177; Beach, Eq. Prac. § 445; and see Conrad v. Buck, 21 W. Va. 396, 404.

This answer of Kuhn was filed on May 26, 1891, the bill having been previously taken as confessed against him, and no process was issued or order of publication taken thereon, nor any notice thereof given to his codefendants, nor any rule entered on them to plead thereto. The decree for partition was entered on the same 26th of May. On the 2d of June thereafter, the report of the commissioners was confirmed, and a further decree made, which recited that Kuhn was the owner of that portion of the lands “assigned to J. I.

Kuhn or the heirs of Henry Meyers, deceased,” and then directed deeds to be made of the shares as partitioned by the commissioners. Under these circumstances, it might well be held that the decree, so far as the title to the Meyer half was concerned, was of no binding force, and might be disregarded when drawn in question in another case. Reynolds v. Stockton, 140 U. S. 254, 11 Sup. Ct. 773. But this result may be reached on other grounds, which appear to us decisive.

Proceedings in partition or to quiet title are not strictly proceedings in rem, for they are not taken directly against property, but they are regarded, so far as they affect property, as proceedings in rem sub modo, in respect of which, while there must be reasonable notice to the parties, personal service is not essential to jurisdiction, and constructive service may be substituted. Arndt v. Griggs, 134 U. S. 316, 10 Sup. Ct. 557. When, however, constructive service by publication is substituted by statute in place of personal citation, a strict compliance with statutory provisions is exacted.

Guaranty Trust & Safe-Deposit Co. v. Green Cove Springs & M. R. Co., 139 U. S. 137, 147, 11 Sup. Ct. 512; McCoy’s Ex’r v. McCoy’s Devisees, 9 W. Va. 443; Hoffman v. Shields, 4 W. Va. 490. It is essential that the publication shall correctly state the parties to the suit and their names. Detroit v. Detroit City Ry. Co., 54 Fed. 1, 9; 16 Am. & Eng. Enc. Law, 815, and cases cited. In Colton v. Rupert, 60 Mich. 318, 27 N. W. 520, the suit was by Garrett B. Hunt and Henry S. Cunningham against a nonresident defendant.

In the publications the name of one of the complainants was printed “Grant” instead of “Garrett,” and the supreme court of Michigan held the decree not binding collaterally. The supreme court of Kansas in Entrekin v. Chambers, 11 Kan. 368, held that a judgment against “Robert Brimford” quieting title to a certain piece of land, rendered upon a default and upon service by publication only, was not valid as against the owner of the land, whose name was “Robert Binford.” So in Chamberlain v. Blodgett, 96 Mo. 482, 10 S. W. 44, a sale of the land of M. B.

Millen for taxes in a tax proceeding where the publication of notice of the suit was to' “M. B. Miller” was treated as void; and it was held that it made no difference, as against a grantee of “Millen,” that the name of “Miller” appeared on the tract books of the county as owner of the land. The court of appeals of Maryland decided that the omission of the middle initial was not fatal to a notice of sale (White v. McClellan, 62 Md. 347); and in Lane v. Innes, 43 Minn. 137, 45 N. W. 4, the supreme court of Minnesota was of opinion that the name “Beulah M. Plimpton” was so slightly variant from “Berlah M.

Plimpton” that a mistake in.that regard was not material. In Iowa and Ohio it has been held that, although the name is incorrectly spelled, yet if accompanied by other description, making the identification clear, the notice may be sustained. Fanning v. Krapfl, 61 Iowa, 417, 14 N. W. 727, and 16 N. W. 293; Id., 68 Iowa, 244, 26 N. W. 133; Buchanan v. Roy’s Lessee, 2 Ohio St. 251. The supreme court of Iowa observed that “a published notice is not necessarily sufficient if it is such that the defendant upon actually seeing it would probably conclude that it was intended for him.

The office of the notice is in part to give the pendency of the action notoriety. It should be such that others than the defendant, seeing it, and knowing the defendant, or knowing of him, would not probably be misled by it as to the person for whom it was intended.” 61 Iowa, 420, 14 N. W. 727, and 16 N. W. 293; 68 Iowa, 246, 26 N. W. 133. In Marx v. Hanthorn, 148 U. S. 172, 13 Sup. Ct. 508, it was ruled that notice under the statutes of Oregon that the property of “Ida J. Hawthorn” was to be sold for taxes was not only not notice that the property of “Ida J.

Hanthorn” was to be sold, but was actually misleading, and that such want of notice, or misleading notice, vitiated the sale. In the partition suit under consideration the order of publication, as entered and published, ran against “Sarah E. Meyers, and the unknown heirs of Henry Meyers, deceased,” as “nonresident of the state of West Virginia!” Whatever question there might be as to the identity of “Meyer” and “Meyers,” which has been differently determined, as a strict construction was,or was not supposed to be applicable (Gonzalia v. Bartelsman, 143 Ill. 634, 32 N. E. 532; Smurr v.

State, 88 Ind. 504), there can be no doubt that “Elizabeth Meyer” is a distinct name from “Sarah E. Meyers,” and there is nothing to help out the description, if it could be properly aided in the instance of such a variance. Sarah E. Meyers was not described as the widow or devisee of Henry Meyers, deceased, nor as a citizen of New York. It would be going much too far to hold that the coupling of “the unknown heirs of Henry Meyers, deceased,” with “Sarah E.

Meyers” would operate to supply the defect, upon the ground that Elizabeth Meyer, or other persons reading the notice, ought to conclude that “the unknown heirs of Henry Meyers, deceased,” were the daughters and devisees of Henry Meyer, and that, therefore, Sarah E. Meyers must be Elizabeth Meyer, the widow and devisee of Henry Meyer, deceased.

We are not unmindful of the fact that in the bill complainants say that the pleading in partition made “the said Kuhn and these plaintiffs parties to the said suit,” but taking all the allegations of the bill together, and the record of the partition suit as a part thereof, we regard that as merely averring an unsuccessful attempt to make plaintiffs parties, and not a concession on their part that they were legally made or brought in as such.

It is also urged that as, from the record of the proceedings in redemption, it appears that Elizabeth Meyer petitioned for redemption, but that the order ran in the name of Sarah E. Meyers, it should be concluded that the latter was the name of the widow and devisee of Henry M'eyer, (¡specially as the bill does not specifically aver that her name was Elizabeth Meyer, and not Sarah E. Meyers.

But upon a demurrer to the bill, in which this complainant is stated to be Elizabeth Meyer, widow of Henry Meyer, deceased, and executrix of his last will and testament, and which has annexed thereto, as a part thereof, the will of the said Henry Meyer, naming his wife throughout as Elizabeth, we are bound to assume that that was her name, and must decline to treat that fact as doubtful because of the description in the order referred to which did not in that respect conform to the petition. In our judgment, Mrs.

Meyer was not bound by the decree in the partition suit, and, being a stranger to that decree, was not obliged to come into the state court, and have it vacated under the statute in that behalf. Inasmuch as the decree was invalid as to her, it must be held so as to the daughters of Meyer, his devisees in remainder. This is so, apart from the independent reasons for holding that the publication was ineffectual as to them. Kuhn claimed under the tax deed which purported to convey title to five-eighths of the land.

The alleged taxes were not levied on the life estate nor the estate in remainder, but on the entire interest. The sale on which the deed rested was a sale of the entire interest in five-eighths, and not of the life estate and estate in remainder as distinct interests therein. If the sale and deed were invalid, they were invalid as to the entirety. The decree assumed to adjudge the title in Kuhn as an entirety, and if not binding as to the whole estate was certainly not binding as to the estate in remainder. 2.

The second ground of demurrer asserted the validity of the tax deed as apparent on the face of the record. We do not think it best to enter upon any extended discussion of this branch of the case, as, in view of the situation of the pleadings, the cause cannot properly be finally disposed of at this time. In Poling v. Parsons, 38 W. Va. 80, 18 S. E. 379, it was ruled that redemption statutes ought to be construed liberally in favor of persons entitled to redeem, and Danser v. Johnson, 25 W. Va. 385, and Dubois v. Hepburn, 10 Pet. 1, were cited to the same effect. In Jackson v. Kittle, 34 W. Va. 207, 12 S.

E. 484, it was held that, as the law required the sheriff to append to his return of sales of delinquent lands a prescribed affidavit, if he omitted to do so, or omitted from such affidavit a material or substantial portion of it, as so prescribed, the clerk should not make the purchaser a deed, and that, if objection were interposed before the deed were made, the sale should be set aside. So in Hays v. Heatherly, 36 W. Va. 613, 15 S.

E. 223, it was adjudged that when the sheriff appended, to his list of lands sold for taxes, an affidavit not fulfilling the requisitions of the statute as to an interest, past or present, direct or indirect, in the purchase, such sale would be absolutely void; and if, after the expiration of the year to redeem and before the purchaser had obtained his deed, the owner of the land offered to redeem, and the purchaser refused, and afterwards obtained a deed from the clerk, a bill brought to set aside the deed, alleging the facts and accompanied by the proper tender, would be good on demurrer. See, also, Baxter v.

Wade (W. Va.) 19 S. E. 404. Judge Jackson, holding the United States circuit court for the district of West Virginia, decided in Wakeman v. Jackson, 32 W. Va. Append., that the failure of the sheriff to return Ms list of lands sold as delinquent .for taxes within the time prescribed by law, as well as the failure of the recorder to note the time of the return, was fatal to the acquisition of title.

The bill here charged that the entry of the land for taxation for the year 1885 on the land books of Wayne county, and the return of the land as delinquent for nonpayment, were illegal and erroneous; that the return of the sheriff of the list of delinquent sales was not filed and not recorded within the time prescribed by law; that the sheriff did not make the affidavit provided by law, the return and affidavit being annexed, and the affidavit closely resembling that considered in Hays v.

Heatherly; that the complainants have redeemed according to law, and paid all taxes, including those of 1885; and that Kuhn had actual personal knowledge of such redemption and payment of taxes before the deed was made to him. In the'light of the authorities, these averments seem to ns sufficient to require an answer. It may he remarked in this connection that the one-eighth claimed by Vinson was derived from the heirs of John Phillips, as appears from his statement of the ownership of the other seven-eighths, and as is charged in the bill In this ease, admitted by the demurrer, and not denied by Vinson’s answer.

The deed to Vinson is referred to as an exhibit to his bill, and made part thereof, but the clerk certified that it was not on file, and it is therefore not set forth in the record. This eighth was one of the five-eighths covered by the tax deed to Kuhn, and in respect of which the alleged redemption was made. No explanation is suggested why the tax deed was allowed effect as to the four-eighths, and not as to the one-eightli, nor does the record indicate the ground for this apparent discrimination.

As we do not consider the issues between defendants Vinson and Kuhn lo be properly before us on this appeal, we express no opinion upon the controversy between them. The circuit court may deal with that subject after the mandate has gone down. The decree is reversed, and the cause remanded, with a direction to the circuit court to overrule the demurrer, with leave to answer, a,nd for further proceedings in conformity to law.