151 P.2d 360 | Wyo. | 1944
It is claimed that the proceeding herein was instituted in accordance with the provisions of Ch. 69, S.L. of 1939, which is as follows:
"If any person has died, or shall hereafter die, who at the time of death was or is the owner of a life estate which terminated or terminates by reason of the death of such person, or if any person has died or shall hereafter die, who was or is the owner with his or her surviving spouse of an estate by entireties, any person in either case, interested in the property or in the title thereto, in which such estate was or is held, may file in the District Court of the county in which the property is situated a verified petition setting forth such facts and thereupon, after two weeks notice by publication or otherwise, as the court may order, the court shall hear such petition and the evidence offered in support thereof; and if, upon such hearing, it shall appear to the court that such life estate of such deceased person has terminated by reason of such death or that such estate by entireties remains vested solely in the surviving spouse by reason of death, the court shall make a decree to that effect, and thereupon a certified copy of such decree shall be recorded in the office of the county clerk and thereafter shall have the same effect as a final decree of distribution of an estate of a decedent."
The original Act (Section 88-916, Rev. St. 1931) related only to the termination of a life estate and provided that the hearing should be had "after such notice by publication, or otherwise, as the court may order," instead of providing for a definite notice of two weeks as contained in the amendment of the Section. The question herein is whether or not, as contended by counsel for the petitioner, an order upon the hearing of the petition is conclusive as to the ownership *362
of the property involved, or whether, as contended by counsel for the objectors, the jurisdiction of the court is confined to the determination of the fact of death of one of the grantees in the deed made to husband and wife. The statute above mentioned was amended apparently after our decision in Peters v. Dona,
Provisions are made in the statutes of various states in the United States in connection with showing of record the fact that an estate in land has been terminated by the death of one who has an interest therein, including the termination of a life estate, an estate by the entireties, or an estate created by the community-property law. In Colorado the statute provides that a certificate of the death, issued by a public official, may be recorded and that such certificate shall be prima facie evidence of the death of the party interested in real estate. § 40-117 Colo. Ann. Statutes, 1935. In Minnesota the statute provides that the death of a joint tenant or of one who has a life estate in property may be shown upon the records by filing a copy of the certificate of an officer who is required by law to keep a record of the death of persons within the jurisdiction of such officer. Such certificate or the record thereof is made prima facie evidence of the death of such person and the termination of a joint tenancy in and to the property involved. § 600-21, Minnesota Statutes, 1941. Idaho has a statute which is identical with the statute in this State, prior to the amendment of 1939. § 7774 Idaho Compiled Statutes, 1919. The statute in Wisconsin provides that upon the death of a joint tenant, or of one who holds a life estate in property, a petition may be filed in the County Court; that thereupon the court shall enter an *363 order setting forth the fact of the death of such person and that such order when filed of record shall be prima facie evidence of the facts therein recited. The statute provides for no notice. § 230-47, Wisconsin Statutes, 1943. The statute of Michigan, in that connection, is substantially the same as the statute of Wisconsin. P. 600, Public and Local Acts, Michigan Session Laws, 1939. In 1935 the Legislature of Oklahoma provided that when a person owning a life estate in property dies, a petition may be filed in court and a notice of the hearing thereof be given by posting copies in three public places before the day of hearing, and that upon the hearing the court shall make and enter an order determining the fact of the death of such life tenant and the termination of a life estate in such real propery. Art. 4, p. 7, S.L. of Oklahoma, 1935. In 1939 the Legislature of Utah amended its statute which had theretofore related only to the termination of a life estate by also providing for the termination of a joint tenancy or a tenancy by the entirety. The statute provides that notice shall be given by publication as the court or judge may direct and that upon the hearing the court shall make and enter judgment "establishing the facts of such death and the effect thereof upon the title to and ownership of such property." Ch. 124, S.L. of Utah, 1939. The statute of South Dakota makes elaborate provisions for showing the termination of an estate such as is herein discussed. It provides that notice of the hearing must be given by publication and by mailing, by registered mail, a copy of the notice to the life tenant and to the heirs, or heirs-at-law, of the life tenant, including in that term a person holding an interest as joint tenant. The order of the court is directed to constitute prima facie evidence of the fact of the death of the life tenant, and of other matters set forth in the record. Any person interested may thereafter bring *364 an action in court questioning the facts set forth in the order, but the order is conclusive in those cases in which no action has been brought within thirty days after the making of the order as against one who has in the meantime bought the property in good faith and for a valuable consideration. §§ 37-1201 to 1209, incl., South Dakota Code of 1939. It is apparent from what has been said that at least in most of the states above mentioned the order of the court in connection with the termination of a life estate, joint estate, or an estate by the entireties, is intended to be prima facie evidence only.
Our original statute was seemingly taken from California. The original legislative act in that State was passed in 1881 (Statutes 1881, page 35) reading exactly as our original act, passed in 1890-1891, and embodied in Section 88-916 Rev. St. 1931. See In Re De Leon's Estate,
The Legislature of this State when it amended our statute did not embody the provisions of the California statutes relating to the same subject, as amended in the manner above mentioned, but adhered substantially to the provisions contained in the original California statute. It had before it the statute contained in the Wyoming Compiled Statutes, 1931, as well as the citations from the California courts, in which it was held that the court in such proceeding has power *366 only to determine the fact of the death of the person who held a life estate or a similar interest in real property. It would almost seem that the Legislature of this State apparently deliberately adopted the meaning given the section by the California decisions above cited. Counsel for petitioner admits that the legislature had these decisions in mind, but thinks that it meant to evade them by prescribing a notice of two weeks instead of the notice previously described, which was fixed by the court. But the change in that respect is too small to lead to any such conclusion.
Counsel for the petitioner argues that the court in King v. Pauly, supra, expresed a doubt as to the construction that should be put upon the statute. That is true, but the main doubt that arises from reading the decision as a whole is as to whether or not the court would have sustained the statute for any purpose whatever, if its effect had not been limited as it was limited by the court. One of the justices put his opinion expressly upon the ground that if the effect of the statute were not limited as it was, it would be in violation of the constitution, presumably in violation of due process. In fact, that seems to be the thought of the Supreme Court of California as expressed in the majority opinion, for the court said:
"It is not to be supposed that the Legislature contemplated that a conclusive adjudication as to these alleged facts might be made against those claiming under the wife without such notice to them and opportunity to defend as would comply with the requirements of our federal and state Constitutions as to due process of law. Yet section 1723, Code of Civil Procedure, provides that the court may hear the petition and make the decree contemplated by its terms `after such notice by publication or otherwise, as the court may order.' A publication of a notice in proper form in one issue of a local newspaper on the day before the time fixed for hearing, or a posting of such notice *367 at the courthouse door one day before the time fixed for hearing, would apparently conform to the requirements of this section, if such was the notice prescribed by the court. We do not believe that it can seriously be claimed that such notice would constitute due process in a proceeding of the character this is claimed by defendants to be, especially as against nonresident defendants. In any action against known defendants, personal service of summons is essential under the statutes of this state whenever it can be had, and publication of summons where personal service cannot be had, and where it is sought to obtain jurisdiction as to a defendant residing out of the state or absent therefrom the publication must not be less than two months. In the light of these statutory requirements as to ordinary actions, it appears almost incredible that the Legislature could have contemplated that a proceeding which in its whole effect and scope would be nothing less than an ordinary action to quiet title could be had and conclusively determined upon such notice to those interested in the property as is authorized by the section. It is much more reasonable to conclude that it merely contemplated a proceeding having for its object, as said in the Hansen Case, the establishment of some record evidence `of the death of a life tenant, a homestead claimant, or other person upon whose death some right or estate vests."
And that leads us directly to the question as to whether or not, if the statute in controversy is construed as counsel for petitioner does, the provision for notice, provided in our statute, as amended, is such as to constitute due process of law. Proceedings in rem such as admiralty proceedings, eminent domain proceedings, probate proceedings, and some others, which are said to be proceedings in rem strictly so-called, do not require personal notice. In such cases the action or proceeding is said to be against and to affect property only. I Am. Jur. 436. However, an action or proceeding, the aim of which, like an action to quiet title, essentially a proceeding in equity, *368
is to exclude other parties from any right or title in and to property is not dissimilar. It is generally called quasi in rem. I Am. Jur. 438. It has been stated that a judgment quasi in rem affects not only the title to the res, but likewise rights in and to it possessed by individuals. 1 Am. Jur. 437. But the distinction between an action quasi in rem and one strictly in rem is elusive. See, for instance, the able discussions in Title Document Restoration Co. v. Kerrigan,
"It is conceded that constructive or substituted service may be authorized by the state, and resorted to in all actions or proceedings touching real property which are properly denominated actions or proceedings `in rem.' Such are actions to partition real estate, proceedings to enforce the collection of taxes against lands, and for the condemnation of land. Pennoyer v. Neff,
There can, of course, be no doubt that in some cases personal notice cannot be held to be essential. Courts of the state must have the right to adjudicate the title and status of propery within its borders, and if the parties interested in the property are non-residents of the state, some other form of notice must suffice. 12 Am. Jur. 292, 294. But some of the interested parties may live in the state, and one of the main points herein involved is, as to whether or not personal notice is necessary as to them. If the test of the sufficiency of notice were as to whether an action affects property only, in which no personal judgment is asked against anyone, or is waived, but only a judgment affecting the property is asked, then, logically, it might be said that little if any difference exists in an action strictly in rem, and one generally called quasi in rem. Then the difference between these two classes might be ignored, and the legislature left free to provide in all such cases for service by publication only, without anything more. But neither courts nor legislatures have so far been willing to dispense with personal notice to residents in all actions or proceedings which affect the right to property only. Hence the test proposed cannot be the true one. But another test has frequently been mentioned, namely, that of necessity. Thus it was said in Shepherd v. Ware, supra:
"The legislature may, in its discretion, provide for substituted service in case of necessity, or where personal notice is for any reason impracticable, in an action where the controversy relates to property which is within the jurisdiction of the court; and with a reasonable exercise of such legislative discretion the courts will not assume to interfere." *370
And in State v. Guilbert, 56 Ohio State Reports 575, 620, 47 N.E. 551, 38 L.R.A. 519, the court said:
"The principle is that the state may provide for the adjudication of all adversary rights of persons in property within its borders, and to the end that such jurisdiction may be complete the legislature may provide a substituted service of process for cases in which actual service cannot be made. In such case nothing more is required by the law of the land than that the substituted service shall be such as, in the exercise of legislative discretion, shall be found most apt to accomplish the purposes of actual service."
In Flynn v. Tate,
"What we do mean to assert is that the right to resort to such constructive or substituted service in personal actions proceeding according to the course of the *371 common law rests upon the necessities of the case, and has always been limited and restricted to cases where personal service could not be made because the defendant was a non-resident, or had absconded, or had concealed himself for the purpose of avoiding service. * * * We think it would be a surprise to the bench and the bar of the country if it should be held that process or summons in ordinary civil actions might be served on resident defendants, present and capable of being found within the jurisdiction of the court, merely by publication in a newspaper. The dangers and abuses that would arise from such a practice are too apparent to require to be named or even suggested. * * * It is, in our judgment, beyond the power of the legislature to disregard so fundamental and long-established a principle of our jurisprudence. Service by publication, under such circumstances, is not `due proces of law,' and therefore any statute assuming to authorize it is unconstitutional."
In Bear Lake County v. Budge,
"It cannot be said that the section under consideration takes great precaution to discover the unnamed defendants residing in the county where the suit is pending. It fails to require the personal service of summons on known defendants residing in such county, and is in conflict with those provisions of our state Constitution, as well as the Constitution of the United States, which provide that no person shall be deprived of life, liberty, or property except by due process of law. Those provisions prohibit the Legislature from dispensing with the personal service of summons when it is practicable. That is required to give courts jurisdiction under the general laws of the state in regard to procedure in suits brought to quiet title or to settle adverse rights. * * * If the power assumed by the Legislature in the provisions of this act in regard to the service of summons be sustained by this court, *372 it would lead to most fearful results, as it would enable them by special and limited law to settle controversies over titles to private property, and to take the property of one person against his consent and give it to another. * * * We know that requirements less rigid than those above indicated may be found in cases of taxation and eminent domain, but we know of no precedent for such a notice as is provided in said act, where the title to property is directly involved, and the object and purpose of the suit is to quiet titles and settle conflicting private claims to private property."
In the case of McDaniel v. McElvy,
"Suits of this nature are not technically suits in rem, nor are they strictly speaking in personam, but being against the person in respect of the res, wherein the decree does not extend beyond the property in controversy, these proceedings acquire a status that may be characterized as suits quasi inrem. Title Co. v. Kerrigan,
In Hunstock v. Estate Development Co., (Cal.App.)
"But under the requirements of due process it is essential that the court have jurisdiction over the person and that the defendant receive reasonable and *373
appropriate notice. Milliken v. Meyer,
In Title Document Restoration Company v. Kerrigan, supra, the court stated:
"In State ex rel. Monnet v. Guilbert,
To the same effect se McNamara v. Casserly,
The record in this case does not show the residence of parties having an interest in the property adverse to the petitioner other than the American National Bank, which is a resident of this State. For aught that appears, they may all be residents of this State requiring a notice which would reach them in due course, though we need not say that the method of service provided by statute for ordinary cases is the exclusive method which may be provided by statute. See Tyler v. Court of Registration,
In some cases, as already stated, notice by publication, without more, must necessarily be held sufficient in cases in which the rights of property in this State are sought to be adjudicated. That is true for instance in cases against unknown parties or where the residence of interested parties is unknown. But is a two weeks' notice by publication or posting a reasonable notice to non-residents of this State, in a proceeding such as that before us to exclude them from any interest in property here, when the residence of the parties is known and in which they could be apprised of the proceeding by sending them a copy? There is little authority on the question. Many cases state generally that rights in property in the state may be determined against non-residents, but in most of these cases, it will be found that a copy of the notice has also been mailed to them, or their residence was unknown. See, however, Arndt v. Griggs,
Counsel for the petitioner call our attention to the provisions of our statute relating to setting off a homestead, the statute providing merely for notice by publication. See the cases on that subject in 29 C.J. 1031, 40 C.J.S. 788, where the views of the different courts are shown. There is, however, aside from what might be said as to the practical aspect at least a theoretical difference. Probate proceedings are said to be proceedings in rem. 23 C.J. 1006, 33 C.J.S. 956, 957, Bardwell v. Collins, supra. A homestead, if the title is in the name of the deceased, is a part of his estate but is set aside as exempt through favor of the statute to the surviving spouse and minor children. There is, accordingly, at least some justification in the holding of some of the courts that a proceeding to set aside a homestead is a proceeding purely in rem, and that notice by publication alone is sufficient. But an estate by the entirety is created by deed. The property becomes the absolute property of the survivor upon the death of a spouse and is not a part of the estate of the latter. The proceeding or action to exclude other parties from any interest therein is not a part of the probate proceeding, but as held in King v. Pauly, supra, it is more in the nature of an action to quiet title. Legislatures and courts have not, as already seen, seen fit to dispense with personal notice to residents in such cases, and no necessity requires it.
The petitioner herein has an ample remedy under the Code of Civil Procedure under the provisions for a declaratory judgment and perhaps even under the provisions of Sec. 88-2502, Compiled Statutes, 1931, to have her rights in and to the property involved herein determined. The Legislature of this State has provided that in ordinary actions summons must be served upon *378 resident parties and a copy of a published notice must be sent to non-resident defendants when their address is known. Summons must be so served even in cases where heirs file a petition for distribution of an estate. Sec. 88-3702, Compiled Statutes, 1931. Provisions have been made that a judgment rendered without other service than by publication may be reopened within three years after the date of the judgment. Sec. 89-2302, Compiled Statutes, 1931. These and other provisions show that our Legislature has meant to comply with the standard of fairness and justness required by due process of law. We have no reason to think that it did not mean to be fair in connection with the statute in controversy. We do not think that it meant to provide in the statute in question for a conclusive judgment as to the property rights rendered only pursuant to notice by publication or posting, at least as to interested parties in this State whose residence is known.
We need not determine what the situation would be if notice complying with due process of law had been ordered and given, except to say that it would seem that the names of the parties interested, if known, ought to be set out in the petition and notice. See Title and Document Restoration Company v. Kerrigan, supra; Bear Lake County v. Budge, supra. We hold, merely, that under the notice given in this case the court had no power to adjudicate the rights of the respective parties interested in the property involved herein. It could only determine the fact of the death of Daniel Bergman. But that was not the object of the petition herein. Furthermore, the fact of death had presumably been already determined at the time of the appointment of the special administrator. It was also determined when the order for notice herein was made, nor is the fact of death in dispute. Hence, further *379 proceedings herein would be useless, and the judgment herein is, accordingly, affirmed.
Affirmed.
KIMBALL, C.J., AND RINER, J., concur.