JOHNSON v. NORTH STAR LUMBER CO. et al., 206 F. 624

MORROW, Circuit Judge (after stating the facts as above). 1. In Oregon, a person claiming an interest or estate in real property, not in the possession of another, may maintain a suit in equity to remove the cloud or to quiet title, without being in actual possession of the premises.

Section 516, Lord’s Oregon Laws; McLeod v. Lloyd, 43 Or. 260, 272, 71 Pac. 795, 74 Pac. 491; Holland v. Challen, 110 U. S. 15, 17,.3 Sup. Ct. 495, 28 L. Ed. 52. In such a suit, where a diversity of citizenship exists as it does here, the Circuit Court of the United States for the district of Oregon had jurisdiction of the controversy, and, the action being local to that district, the court had jurisdiction over the subject-matter.

Section 8, Act March 3, 1875, c. 137, 18 Stat. 470 (U. S. Comp. St. 1901, p. 513); Dick v. Foraker, 155 U. S. 404, 410, 15 Sup. Ct. 124, 39 L. Ed. 201. Further, the defendant, by answering the bill of complaint on the merits, and by filing a cross-bill submitting his title to the jurisdiction of the court and praying for affirmative relief, waived any objection he might otherwise have had to the jurisdiction of the Circuit Court of the District of Oregon. Western Loan Co. v. Butte & Boston Min. Co., 210 U. S. 368, 28 Sup. Ct. 720, 52 L. Ed. 1101. 2.

Plaintiff’s title to the land in controversy must prevail in this ' action, unless it is defeated by the title acquired by the defendant under the judgment in the attachment suit against Aaron Johnson!. This judgment is assailed by the plaintiff on the ground of lack of jurisdiction in the state court of Oregon to enter the judgment:

(1) Because the court never acquired jurisdiction of the person of Aaron Johnson, the defendant in that case; (2) because the court never had jurisdiction over the land attached in that case and sold to the defendant under the judgment entered therein. “A judgment rendered by a court having no jurisdiction either of the parties or the subject-matter is a mere nullity, and will be so held and treated whenever and for whatever purpose it is sought to be used or relied upon as a valid judgment.” ■ 23 Oyc. 681. 3.

With respect to the jurisdiction of the court over the person of the defendant, Aaron Johnson, the objection is that the defendant was a nonresident; that he was not found or served with summons in the state of Oregon; that he never appeared or answered in the action; and that the service by publication of the summons is void and ineffectual for the reason that the defendant had no property in the state; and that it was never made to appear to the court by affidavit to the satisfaction of the court, or to any judge thereof, that the defendant could not after due diligence be found in the state of Oregon; that no affidavit showing or attempting to show such fact was filed in said court; that, the court having no evidence before it by affidavit that the defendant could not after due diligence be found in the state of Oregon, it had no jurisdiction to make any order for service of the summons by publication.

It is further objected that the only evidence which tended to prove the facts required by the statute to be established was a paper purporting to be an affidavit signed by the. plaintiff on the 7th day of September, 1907, in which it was stated that the defendant was not a resident of the state of Oregon; that the defendant was not in the state of Oregon at the time of the making of the supposed affidavit, so as to be served with the summons personally in the state of Oregon; and that lie could not be personally served in the state of Oregon.

This paper appears to have been signed in the state of Washington, before a notary public of that state, who was not authorized by the laws of Oregon to take affidavits for use in the latter state. It was therefore a nullity for any purpose in the state of Oregon.

It is contended, however, that the sufficiency of the allegation in the affidavit to prove that the defendant, after due diligence, could not be found within the state of Oregon was a matter for the adjudication of the trial court, and a recital of such adjudication in the order or judgment (nothing to the contrary of such recital appearing in the record) was conclusive evidence of the fact in this collateral proceeding. But the objection in this case is that the court made no adjudication upon the subject.

The recital in the order of publication is: “It appearing to tlie satisfaction of the court that neither of the defendants above named can he found within the state of Oregon. * * * ” There is no adjudication upon the question whether “the defendant after due diligence could not be found within the state,” and this was a question jurisdictional in the publication of the summons.

And there is the further subordinate objection that it appears from the record that the court had no affidavit before it upon which to make such .adjudication, and no finding was made that such affidavit was before it, and, further, it appears from the record that there was uo proof before the court of any character that “the defendant, after due diligence, could not be found within the state,” and no such finding of fact was made by the court.

It follows that as the only jurisdiction that the court had over the person of the defendant, Aaron Johnson, was the publication of the summons calling him into court, and the court having no jurisdiction to order the publication of summons in the case, and not finding the facts upon which such jurisdiction could be based, or upon which to adjudicate upon the jurisdictional question, the court acquired no jurisdiction over the person of the defendant, Aaron Johnson. It would seem that the citation of authorities would be unnecessary to support this conclusion; but the leading case of Galpin v. Page, 85 U.

S. (18 Wall.) 350, 25 L. Ed. 959, is so directly in point that we cannot omit reference to the discussion in that case of the question of jurisdiction acquired by service of summons by publication. That action was brought in the Circuit Court of the United States in California to recover possession of certain real property situated in the city and county of San Francisco.

The plaintiff claimed title through a conveyance authorized by the probate court of the state, which administered upon the estate of the deceased former owner of the premises, and the defendant claimed title through a purchaser who bought at a commissioner’s sale held under a decree of the district court of the state, rendered in an action brought to settle the affairs' of, a copart-nership between the decedent and others.

It was admitted in the United States Circuit Court that the plaintiff had the title, unless it had passed to the purchaser at the .commissioner’s sale made under the decree in the state district court. Whether the title had so| passed depended upon the question whether the district court had acquired jurisdiction over the person of a nonresident heir to the estate by publication of summons. The nonresident heir was the posthumous child of the decedent, who was made a party by a supplemental bill which contained the prayer that a guardian ad litem might be appointed for the child.

The statute of the state which authorized constructive service by publication provided: “When the person on whom the service is to be made resides out of the state,' or has departed from the state, or cannot, after due diligence, be found within the state, * * * and the fact shall appear by affidavit to the satisfaction of the court or a judge thereof, * * * and it shall in like manner appear that a cause of action exists against the defendant, in respect to whom the service is to be made, or that he is a necessary or proper party to. the action, such court or judge may grant an order that the service be made by the publication of the summons.” An order had been made by the district court directing publication of summons.

In the order was a recital as in the present case “that it appeared to the satisfaction of the court” that the defendant resided out of the state, and that she was a necessary party to- the action, etc. It was not stated in the order in what way the facts recited appeared, and no affidavit was found of record in the case. It seemed probable that the court might have acted upon the statement contained in the supplemental bill.

But it appeared in the record that the summons was published as required by the order and as provided by the statute, and that thereupon the court appointed a guardian ad litem for the child who appeared and filed an answer in her behalf. In the Circuit Court, with this record before it (Galpin v. Page, 3 Sawy. 93, Fed. Cas.

No. 5,206), it was held that the recital in the order of publication of the jurisdictional ■ fact, there being nothing in the record to the contrary, was conclusive evidence in a collateral proceeding of the determination of the fact upon sufficient evidence, although the evidence did not appear in the record. In the Supreme Court of the United States the decree of the Circuit Court was reversed upon the ground that this statement of the law was error.

In speaking of the presumptions in support of judgments, the court said: “The presumptions indulged in support of tbe judgments of superior courts of general jurisdiction are also limited to jurisdiction over persons within their territorial limits, persons who can be reached by their process, and also over proceedings which are in accordance with the course of the common-law.

The tribunals of one state have no jurisdiction over the persons of other states, unless found within their territorial limits; .they cannot extend their process into other states, and any attempt of the kind would be treated in every other forum as

an act of usurpation without any binding efficacy. * * * Whenever, therefore, it appears from the inspection of the record of a court of general jurisdiction that the defendant, against whom a personal judgment or decree is rendered, was, at the time of the alleged service, without the territorial limits of the court, and thus beyond the reach of its process, and that he never appeared in the action, the presumption of jurisdiction over his person ceases, and the burden of establishing the jurisdiction is cast upon the party who invokes the benefit or protection of the judgment or decree.

This is so obvious a principle, and its observance is so essential to the protection of parties without the territorial jurisdiction of a court, that we should not have felt disposed to dwell upon it at any length had it not been impugned and denied by the Circuit Court. It is a rulo as old as the law, and never more to be respected than now, that no one shall be personally bound until fie has had his day in court, by which is meant until he has been duly cited to appear, and has been offered an opportunity to be heard.

Judgment without such citation and opportunity wants all the attributes of a judicial determination; it is judicial usurpation and oppression, and never can be upheld where justice is justly administered. When, therefore. by legislaiion of a state, constructive service of process by publication is substituted in place of personal citailon, and the court upon such service is authorized to proceed against the person of ail absent party, not a citizen of the state nor found within it, every principle of justice exacts a strict and literal compliance with the statutory provisions.

And such has been the ruling, we believe, of the courts of every state in the Union.” '['he court accordingly held that the sale of property under the judgment against the nonresident defendant was void for lack of jurisdiction over the person of such defendant. The law of this case was followed by the Supreme Court of Oregon, in Goodale v. Coffee, 24 Or. 346, 354, 33 Pac. 990, 992, where the court said: “It is well settled that statutes which provide for the service of process by publication are in derogation of the common law, and must be strictly construed. Odell v. Campbell, 9 Or. 298.

The affidavit is the complaint upon which the judgment order for service is based, and must state every jurisdictional fact required by the statutes. McMillen v. Reynolds, 11 Cal. 372. If the affidavit he insufficient, the court acquires no jurisdiction over the defendant, and the judgment is void. Braly v. Seaman, 30 Cal. 010.” In McDonald v. Cooper, 32 Fed. 745, the United States Circuit Court for the district of Oregon had before it a judgment in the state court wherein it was claimed that a nonresident defendant had been brought into court by publication of a summons.

Against this judgment it was objected that the state court had not acquired jurisdiction over the person of certain nonresident defendants, or the property which was the subject of the action: First, because the facts stated in the affidavit did not tend to show that any diligence was used to find the defendants within the state, or they could not have been found and served therein; and, second, because the facts stated did not tend to show that the defendants or either of them then had any property within the state.

The statement of the affidavit was: “They [the defendants] cannot he found within the state of Oregon, hut both reside in San Jose, California, and that is their post office address.” As to whether the defendants or either of them had any property within the state at the time of the commencement of the suit, the statement of the affidavit was that the plaintiff therein “has a good cause of suit against the defendants to foreclose a certain mortgage on real property situate * * * in Oregon, executed, etc.” Commenting upon the insufficiency of this affidavit, the court said: “That diligonco has been used to find the defendant within the state must appear from the affidavit, and a mere statement or assertion therein that the -party is a nonresident thereof is not sufficient.

Nor is such statement or assertion that diligence has been used a compliance with the, statute. The affidavit must contain some evidence of the ultimate fact, besides the assertion of the affiant, on which the judicial mind may act in granting the order. And however slight and inconclusive this evidence may be, if it has a legal tendency to prove the diligence, and that the defendant could not be found' Within the state, it is sufficient to give the court jurisdiction, and sustain the-order against a collateral attack.

But where there is no evidence of such diligence except the bald assertion of the fact, or that 'of nonresidence, the' order is void, and the court does not acquire jurisdiction. * * * It must also appear from the affidavit that the defendant has ‘property’ in this state. The bare assertion that the defendant has such property is not sufficient.

Some fact or facts must be stated tending to establish this conclusion on. which the judicial mind may act.” It appears that the insufficiency of the affidavit in these respects was admitted by the defendant; but it was contended that the suit was to foreclose a mortgage, and that it was a suit in rem, and, as in the case now before this court (as we shall presently see), it was contended that the jurisdiction of the court did not depend upon the validity of the proceedings to authorize the publication of the summons, but on the fact that the property was within the state, and that the plaintiff had a lien thereon.

The Circuit Court did not take' this view of the proceeding, but held that the order of publication was void upon both of the grounds stated, and the subsequent proceedings thereon, including the sale to the defendant’s predecessor in interest,, were null and of no effect. We conclude that in the present case it is clearly established that the state court never acquired jurisdiction over the person of Aaron Johnson in the attachment suit. 4.

The defendant further contends that the attachment of the real property in controversy, and its subsequent sale under the judgment in the attachment suit, gave the court a jurisdiction over it that is not subject to attack in a collateral proceeding; in other words, that the attachment suit was a proceeding in rem, and the right to adjudicate upon the issues involved in the suit was acquired by the attachment of the defendant’s property. The case of Cooper v. Reynolds, 77 U. S. (10 Wall.) 308, 319, 19 L. Ed. 931, is cited by the defendant in support of this doctrine. But this is not the law of Oregon.

In Bank of Colfax v. Richardson, 34 Or. 518, 525, 54 Pac. 359, 361 (75 Am. St. Rep. 664), it was held that in that state: “An attachment is merely auxiliary to the main action, and there is no difference in the proceedings thereon in an action brought against a nonresident, upon whom service is necessarily made by publication, and in one brought against a resident of the state, in which personal service is had.

In either case, the proceedings in attachment have nothing to do with the merits of the cause of action or the jurisdiction of the court to try and determine the controversy between the parties. -If personal service is had, the cause becomes a mere action in personam, with the added incident that the property attached remains liable for any. judgment the plaintiff may recover.

But, if service is had by publication, and there is no appearance for the defendant, the action is practically a proceeding in rem against the attached property, the only effect of which is to subject it to the payment of the amount which the court may find due the plaintiff. Where no personal service is had, the res is brought within the power and control of the court by a seizure under a writ of attachment; but the right to adjudicate thereon is acquired, only by the publication of the summons.

It is the substituted service, and not the seizure, which gives the court jurisdiction to establish by its judgment a demand against the defendant, and to subject the property brought within its custody to the payment of that demand.” But there is an equally conclusive objection to the judgment in the attachment suit, that no property of the defendant, Aaron Johnson, was ever attached or brought within the jurisdiction of the court.

It is not alleged in the complaint in the attachment suit that the defendant in that action had any property in the state of Oregon, nor is there such an .allegation in the affidavit for the attachment.

In the paper signed and subscribed by the plaintiff in that action before the notary public in the state of Washington, on the 7th day of September, 1907, for the publication of summons, it was stated that the sheriff of Douglas county, Or., had, on the 1st day of April, 1907, served the writ of attachment by levying upon the real estate in controversy, and that said property, on the 1st day of April, 1907, belonged to the defendant, Aaron Johnson. But, as we have already determined, this paper was a nullity for any purpose in the state of Oregon.

It was ineffectual to establish any fact in the case; but if it had been effectual for that purpose, it was contradicted by the county records of the county in which the land was situated. On the 1st day of April, 1907, the defendant, Aaron Johnson, was not in possession of the property and had no title to it of record in Douglas county, Or.; the title to the real estate in controversy standing at that time in the name of Andrew Johnson in the records of that county.

The only basis for claiming that ilie defendant, Aaron Johnson, owned the attached property on the 1st day of April, 1907, is the fact that on the 12th day of April, 1907, Andrew Johnson delivered to Aaron Johnson a deed for the property, and on the same day the latter delivered a deed to the plaintiff herein for the same property. Both of these deeds were recorded on April 24, 1907. There is no evidence in the record of the case of any ownership of this property other than that disclosed by the recorded deeds.

The only claim of title in the defendant, Aaron Johnson, on the 1st day of April, 1907, is the fact that the deed of Aaron Johnson to the plaintiff, the North Star I,umber Company, dated February 21, 1907, contains a covenant on the part of Aaron Johnson: “That he is well seized in fee of the lands and premises aforesaid, and has a good right to sell and convey the same in manner and form aforesaid.” The title at that time, as lias been stated; was in Andrew Johnson.

The consideration for the deed to the plaintiff is stated to be the sum of $2,000, paid to Aaron Johnson by the North Star Lumber Company, receipt of which is acknowledged by Aaron Johnson. Is the covenant of seisin contained in this undelivered deed such evidence of title to the land in Aaron Johnson, on February 21, 1907, the date it was signed, or on March 8, 1907, the date it was acknowledged, that the land was subject to attachment as his property on April 1, 1907, notwithstanding that during all this time the title was in Andrew Johnson?

Furthermore, Andrew Johnson and Emma Johnson, his wife, executed a deed to Aaron Johnson, dated April 8, 1907, whereby the latter acquired title to the land upon the delivery of the deed, and in this deed the grantors covenanted: “That they are the owners hi fee simple absolute of all and singular the above-granted and described premises, and the appurtenances; that they have good and lawful right to sell and convey the same.” If the covenant in the first deed is evidence of title in Aaron Johnson at any time prior to the delivery of the deed, so is the covenant in the latter evidence of title in Andrew Johnson, and the latter contradicts and nullifies the first, but with the decided advantage in favor of the title in Andrew Johnson, who had the record title from May 21, 1904, down to the time of these transactions.

But the plain fact is that both of these conveyances and their covenants had relation to the delivery of the deeds, and upon delivery became effective, and not before. A deed speaks as of the date of its delivery to or for the grantee. “Delivery of a deed is essential to tlie transfer of the title,” and, “to constitute such delivery the grantor must part with possession of the deed or the right to retain it” Younge v. Guilbeau, 70 U. S. (3 Wall.) 636, 641, 18 L. Ed. 262. “Nothing passes by a deed until it is delivered.” Parmelee v. Simpson, 72 U. S. (5 Wall.) 81, 85, 18 L.

Ed. 542. “Delivery is essential to the validity of a deed.” Fain v. Smith, 14 Or. 82, 84, 12 Pac. 365, 58 Am. Rep. 281. “No instrument is executed until it is delivered.” Howard Insurance Co. v. Silverberg, 94 Fed. 921, 922, 36 C. C. A. 549. We know of no exception to this rule. There has been some question as to what constitutes delivery of a deed, and there has been some diversity of legislation and opinion upon that subject; but that question is not material here.

Under this rule the title did not pass from Andrew Johnson to Aaron Johnson until the delivery of his deed on April 12, 1907, and on the same day, and not before, the title passed to the plaintiff. Our conclusion is that there is no evidence in the record that Aaron Johnson was the owner of the land in controversy when the attachment was levied on April 1, 1907, and, as the validity of the judgment depended upon that fact, it follows that the judgment was invalid for the reason that the defendant was not at the time of the levying of the attachment the owner of the land.

That this conclusion is in accordance with the substantial equities of the case is supported by a stipulation entered into by the parties at the conclusion of the trial of this case in the court below, to the effect that a witness called on behalf of the plaintiff should be deemed to have'testified that the plaintiff had no knowledge of the fact that the attachment suit had been brought or that the real property in controversy had been attached, or that any judgment had been rendered therein or any sale made thereunder, until about 30 days prior to the commencement of the present action.

The plaintiff was, therefore, a purchaser for a valuable consideration, without any notice of defendant’s claim of title. It follows that the state court never had jurisdiction over the land attached in the attachment suit, and that the judgment in that case was void and of no effect. The decree of the lower court in favor of the plaintiff was correct, and it is affirmed.