In the instant case the decree is assailed for the want of jurisdiction. The grounds on which it is challenged are: (1) That the complainant in the other suit, Gill, perpetrated a fraud on the chancery court in falsely alleging that at the time of the filing of his bill in the suit in which the questioned decree was rendered he was in the peaceable possession of said tracts of land, and that he owned the same; (2) that after failure to make these complainants parties respondent the court had no jurisdiction to render a binding decree affecting their rights in the real property described.
Is the present bill multifarious, in that it seeks cancellation of the decree of January 25, 1912, in the case of Harry Gill v. Abraham G. More, in so far as it relates to complainants’ interest in the lands in question and the adjudication of Gill’s right or interest therein?
The case relied on by,appellant is Gordon, Adm’r, v. Ross,
“Your oratrices further charge the fact to be that they nor. either of them was a party to *514 said suit filed by said Harry Gill aforesaid; that neither of them was ever served with any process whatever issuing from this honorable court in said suit; that no notice by proper publieátion was ever given to them or either of them of said suit, and as a matter of fact your oratrices charge the truth to be that neither one of them knew of the existence of said suit at any time while the same was pending, and never heard until in January, 1916, that there was such suit filed by said Harry Gill in this court. * * *
“Oratrices further charge that in the third section of his said bill of complaint the said Harry Gill sets out the names of the defendants - to his said suit, but the names of your oratrices do not appear therein or anywhere else in said bill, nor is the name of their father, Abraham G. More, mentioned anywhere in said bill. The only pretense that your oratrices were parties to said suit arises out of an inference or supposition which the said Harry Gill would have the court to indulge, that because that in the third section of his bill this statement is made, ‘Abraham G. Moore, or, if dead, his devisees, heirs, and next of kin * * * [naming others], all of whom are made defendants to this bill of complaint, claim or are reputed to claim the interests in said land as set out and alleged in paragraphs first and second of this bill,’ and also this other statement made in the fourth section of the bill, to wit, ‘Complainant further shows that he has made and caused to be made diligent search and inquiry to ascertain the names,- ages, and residences of the devisees, heirs, and next of kin of said Abraham G. Moore, and also to ascertain whether said Abraham G. Moore is living or dead, and where he resides, if living, but after diligent inquiry has been unable to ascertain any of these facts,’ and also this other statement in the bill, in the prayer for process, to wit, -‘That service by publication be had upon said Abraham G. Moore, or, if dead, his devisees, heirs, and next of kin, * * * ’ your oratrices are and wore the identical persons made defendants to said bill under said statements, although their father, Abraham G. More, and your oratrices have never claimed said lands under the name or appellation of ‘Moore.’ ”
As to what the bill in the former suit contained in regard' to the parties defendant, it is pertinent to observe that it failed to positively aver that the said Abraham G. Moore was dead. On the contrary, it alleged that diligent inquiry had failed to disclose that fact Unless he was so averred and shown- to be dead, presumably he was then living; and, being in life, he could have no heirs or devisees to be made parties to a ■ suit affecting his lands in this state. If living, he was sought to be made a party defendant; if dead, by alternative averment, his “devisees, heirs, or next of kin” were sought to be made parties respondent.
Appellees (complainants below), in addition to averring fraud on the jurisdiction of the chancery court in the former suit as to the res, point to the fact that they had no knowledge of the pendency of said suit to quiet title (Gill v. Moore et al.), and contend that the published notice thereof was ineffeettfal as against them; (1) Because the name of their ancestor was misspelled; and (2) ' because they were not properly made parties as an unknown class.
Of constructive notice generally held sufficient or not sufficient to bind innocent third parties ünder other statutes, the decisions thereon may aid somewhat in determining whether the notice sought to be given these complainants (the nonresident defendants in the former suit) was reasonable and sufficient as basis on which to deprive them of their property in question, by said decree. Our court has held that a description in a recorded mortgage may be good as between the parties, and yet insufficient to deprive a purchaser from the mortgagor of his bona fide right to the mortgaged property, acquired without notice (Stickney v. Dunaway,
In the names of parties to a suit initials have generally been held insufficient. Comer v. Jackson,
In Hubner v. Reickhoff,
“It is hardly to be doubted that, while ‘Reed’ could be held to apply to ‘Read,’ or ‘Reade,’ with the person in court, and an issue of identity made, a court would not assume, on a publication service, that it meant, or should be understood to mean, either of the others. The danger of such a holding is apparent, because of the fact that all three words are names of persons pronounced alike, but of different orthography.”103 Iowa, 371 ,72 N. W. 541 ,64 Am. St. Rep. 191 .
So in Buchanan v. Edmisten,
In Fanning v. Krapfl,
That notice by publication is a proceeding against the name, and that to give such notice as the service of the writ imparts the name should be fully and correctly set forth, and that, if the name is not so set forth the notice is ineffectual as a notice, these cases are authorities: Hirsh v. Weisberger,
My Brothers Mr. Chief Justice ANDERSON and Justices MAYFIELD and SOMERVILLE do not wish to be concluded on the question of differing orthography (in this case) in giving notice by publication to complainants’ ■ ancestor. They agree with the writer, however, that any views reserved by them .on this point would not, for reasons hereinafter stated, change the result.
Whatever may have been the effect of the *516 misspelling of the name of complainants’ ancestor (“More” or “Moore”) in the service or attempted service of process by publication in the suit of Gill v. Moore, the averments of this bill show a failure to comply with the statutory provisions for making parties defendants to a bill in chancery to quiet title and for bringing in nonresidents' by publication when their names are unknown to the plaintiff and cannot be ascertained by diligent inquiry. Code 1907, § 3106.
In a probate court proceeding for the sale of real property for distribution among joint owners (Bingham v. Jones,
“The children of Mary Little, deceased, who was also a daughter of the said Margaret (Charlotte) Cowper, and a niece of the said Eliza E. Chase (intestate), deceased, the names, residences and ages of said children are unknown to petitioner. * * * ‘Petitioner further represents that the distributees of said estate, described in his said amended petition as the children of Mary Little, deceased, whose names and residences and ages are unknown, * * * is a full statement of all the knowledge petitioner has of such persons, or has been able to ascertain.’ This is all the petition contains in reference to the children of Mary Little.”
It was pointed out by demurrer that “with reference to the children of Mary Little, deceased,” the petition failed to set forth the names of these heirs of said Little as required by section 3433 of the Code of 1886. this statute being the same as section 3106 of the Code of 1907, under which the process in the instant case was sought to be ’perfected by publication. Judge Stone said:
“There is a statutory provision for making parties defendant to a bill in chancery, and for bringing them in for publication, when their names are unknown to the plaintiff, and cannot be ascertained on diligent inquiry. Code 1886, § 3433. But this right is purely statutory, and to bring a case within its influence, its substantial requirements must be conformed to. City of Opelika v. Daniel,59 Ala. 211 ; Bell v. Hall,76 Ala. 546 . There is not enough in the petition to bring in these unknown heirs, if the suit had been in the chancery. * * * ”
Where parties were described, not by name, but as “supervisors,” it was held that the proceeding by them was ineffectual. Supervisor of the Town of Galway v. Stimson, 4 Hill (N. Y.) 136.
In Kerlee v. Corpening, supra, the court said of parties plaintiff and others that:
The “numerous others are described, without naming them, as ‘heirs at law of Moses Curtis, deceased,’ and this cannot be tolerated. Who are the heirs at law of a deceased person is a question of law. Bradford v. Erwin,34 N. C. (12 Ired.) 291 .”
“Such person or his personal representative or guardian so in possession may bring and maintain a suit in equity to settle the title to such lands, and to clear up all doubts or disputes concerning the same.”
Thus are specifically declared the jurisdictional facts on which depends the right to deal with the res. Code, § 5443.
The bill is required to describe with certainty the land, and to allege the possession and ownership of the complainant, together with the fact that the “defendant claims or is reputed to claim some right, title, or interest in or incumbrance” thereon, and must call upon him to set forth and specify his title, claim, interest, or incumbrance. Code § 5444. “The defendant shall answer” as to the nature and extent and sources of his claim, interest, title, or incumbrance. Code, § 5445. A trial by jury is provided; and on such trial the issue to be determined by the verdict, as declared by the statute, is “whether the defendant has any right, title, or interest in or incumbrance upon such lands or any part thereof,” what it is and its extent, and the decree is “conclusive upon all the parties to the suit.” Section 5446. It is further provided that no decree for costs shall be had against a defendant “who suffers a decree pro confesso against him, or who in his answer disclaims all title to, interest in, or incumbrance on such lands.” Section 5448. It is to be noted that no special provision is made in chapter 127 of the Code, pp. 1226, 1229, for service by publication on nonresident respondents in such action to quiet title. The provision for the notice, or service of process by publication on nonresident defendants in such suits must be found in sections 3106 and 5308 of the Code of 1907.
Adverting to the statute of California construed in the Zeiss Case, it is to be noted that it provided that the action to quiet title must be commenced by filing a verified complaint against the defendants as “all persons claiming any interest in or lien upon the real property,” or any part thereof, described in the complaint; that it was also provided that in such suits service may be perfected by publication against unknown parties in interest.
The Circuit Court of Appeals certified to the Supreme Court of the United States for decision the question of the validity of such statute, whether it was in violation of the Fourteenth Amendment, whether the decree rendered on service sought to be perfected thereunder by publication as to such unknown nonresident defendants was depriving them of an interest in lands without due process of law. Chief Justice White declared that the general welfare of society is involved in the security of title to land, that such subjects are within the police power of the state, and that in its exercise the state may requirfe parties owning and in possession of land, resident -or nonresident, to establish titles thereto by judicial proceedings before its constituted tribunals, and that notice thereof to such nonresident defendants may be given by publication. It was recited, in justification of the holding, that after such disaster of earthquake and fire as befell San Francisco in 1906, in which many of the public records of registered titles to real estate were destroyed, the state might remedy the confusion and uncertainty arising from such catastrophe by authorized procedure under the statute in question. It was further pointed out that undisclosed and unknown claimants to lands were as dangerous to the stability of real estate titles as any other class of claimants, and that unknown nonresidents brought in by publication in such actions were not, by decree on such constructive notice, deprived of their property without due process of law “if compelled to establish their titles by judicial proceedings before a properly constituted tribunal on adequate published notice, if given an opportunity to be heard and properly safeguarded and protected in case of fraud.” The court said:
“On the contrary, we think the statute manifests the careful purpose of the Legislature to provide every reasonable safeguard for the protection of the rights of unknown claimants and to give such notice as under the circumstances would be reasonably likely to bring the fact of the pendency and the purpose of the proceeding to the attention of those interested. * * * The criterion is not the possibility of conceivable injury, but the just and reasonable character of the requirements, having reference to the subject with which the statute deals. * * * Due process requires that the court which assumes to determine the rights of parties shall have jurisdiction, * * * and that there shall be notice and opportunity for hearing given the parties. * * * Subject to these two fundamental conditions, which seem to be universally prescribed in all systems of law established by civilized countries, this court has up to this time sustained all state laws, statutory or judicially declared, regulating procedure, evidence, and methods of trial, and held them to be consistent with due process of law. Twining v. New Jersey,211 U. S. 78 [29 Sup. Ct. 14,53 L. Ed. 97 ]. * * * As there is no claim that fraud, actual or constructive, was employed by Zeiss in obtaining the judgment complained of, and the proceedings conformed to the California statute, the considerations previously stated dispose of this question.”
Tbe latest case discussing the question of due process under a state statute authorizing the perfecting of service on a nonresident defendant by publication, iq an action for a sale for partition among joint' owners of real property (where, by the way, the name of the nonresident defendant was misspelled in the notice), is Grannis v. Ordean,
“The logical result is that a state, through its courts, may proceed to judgment respecting the ownership of lands within its limits, upon constructive notice to the parties concerned who reside beyond the reach of process. That this constitutes ‘due process’ within the meaning of the Fourteenth Amendment was recognized in Pennoyer v. Neff,95 U. S. 714 [24 L. Ed. 565 ] and is no longer open to question. * * * The ‘due process of law’ clause, however, does not impose an unattainable standard of accuracy. If a defendant within the jurisdiction is served personally with process in which his name is misspelled, he cannot safely ignore it on account of the misnomer.”
The rules established by the great weight of authority are recognized as: (1) That if a person is sued and personally served by a wrong name and he fails to appear qnd plead the misnomer in abatement, the judgment binds him (Veasey v. Brigman,
“That Geilfuss himself, upon receiving the notice, would be sufficiently warned that it af *519 fected his interest in the Minnesota lands under his judgment against McKinley, is free from doubt. He would, of course, observe the misnomer; but, having received the notice which it was the purpose of the law to convey to him, he could not safely ignore it on the ground of the mistake in the name, any more than, if personally served with the summons within the state of Minnesota, he_ could have ignored it on account of a similar misnomer.”234 U. S. 398 , 34 Sup. Ct. 784,58 L. Ed. 1363 .
It must be observed that the statutory provision construed required not only publication, but that the notice be mailed to the defendant, and that the waiver of the rule of strictness was justified on the presumption .that Geilfuss had received the notice so transmitted to him by the United States mails; the court thus taking judicial notice of the regularity of delivery of the United States mails.
In the instant case the notice purported to have, been given complainants is not set out in the record. No doubt it was given according to the averments of the bill descriptive of the parties sought to be made respondents thereto, and sought to be bound by the decree quieting title, to wit, “Abraham G. Moore, or, if dead, his devisees, heirs, and next of kin.” As we have observed, if Abraham G. More was in life when the process was sought to be perfected on him by publication, then that part of the decree purporting to be against his devisees, heirs, or next of kin by class, and not by name, was and is void as to them. His death is not averred by that pleading in the former suit, so far as is disclosed by the record; the contrary fact is shown to have been averred in this former suit. The indefinite, unusual, and ineffectual decree rendered on such attempted perfecting of service by publication was against “Abraham G. Moore, or, if dead,” against “his devisees” (that is, if he left a will), or, if he died intestate, against his “heirs or next of kin,” and also against certain other named defendants, “or, if any of them be dead,” against their “devisees, heirs, and next of kin.”
In Cona v. Henry Hudson Co., 86 N. J. Law, 154,
In Hill v. Henry, supra, the New Jersey court declared that in a suit to quiet title to land the chancery act in question, authorizing such service by publication, had no application. The court said:
“The act throughout contemplates a proceeding against definite individuals known to have an actual existence, not an indefinite class whose membership and whose very existence are unascertained.” 66 N. J. Eq. 150, 160,57 Atl. 554 , 558.
This observation touching the New Jersey statute to quiet title under such published notice is pertinent in the construction of- the Alabama statute authorizing bills to quiet title and of other statutes providing for constructive notice.
In the case at bar the claim of fraud is specifically alleged. The jurisdictional facts averred in the bill filed in the case of Gill v. Moore et al. are now alleged to be wholly untrue ; and it is averred that by reason thereof that court was sought to be given a color-able jurisdiction of the subject-matter, but that the service of process on these complainants was sought to be perfected by publication against them as nonresidents of the state of Alabama, and as residents of another state of the Union, on the fraudulent averment of inquiry and inability to ascertain their names and residences, as parties to be concluded by said decree, whereas a casual examination of the public records of the county where the lands were situate would have disclosed the fact of their identity to said complainant. The averment as to this latter fact is:
“The deeds of conveyance to said A. G. More for said lands are and were on record in the office of the probate judge of Mobile county, and in which said deeds his name is set out and spelled ‘Abraham G. More.’ Joanna More, the widow of said Abraham G. More, through her agents, James K. Glennon & Co., has consecutively for more than 25 years last passed assessed said lands involved in this suit for taxation, in her name, ‘Joanna More,’ and has regularly every year paid the taxes (state and county) on said lands; that these public records, had they been searched, would have disclosed the name of the owner of said lands to have been ‘Abraham G. More.’ And the state and county tax books for the past 25 years would have disclosed to the diligent or even casual investigator the fact that said lands were assessed for taxation in the name of ‘Joanna More, by "Jas. K. Glen-non & Co., Agents.’ And Jamos K. Glennon & Co. were during all of said time, and are still, prominent real estate agents in the city of Mobile, and could have readily furnished all information as to the names and residences of the widow and heirs at law of the said Abraham G. More, deceased.”
*520
Under the averments of the present bill we are constrained to hold that our statutes giving the right to quiet titles to lands as to adverse claims, etc.', impose on the complainant in such an action the affirmative and active duty to make a bona fide and reasonably diligent inquiry to ascertain the names and residences of all persons who claim or own an adverse interest in the lands, the titles to which are sought to be quieted, and who are sought to be concluded by the decree, and to make them parties respondent. Failing in this duty, colorable jurisdiction cannot be given a court of equity to proceed therein, and under such failure of duty no statutory authority exists for bringing in as parties re¡; spondent on the perfecting of service of process by publication supposed or actual parties in interest. Leigh v. Green,
The former suit eventuating in the challenged decree (on January '25, 1912) was filed in November, 1911. It is averred in the bill to vacate the same (filed September 16, 1916) that complainants had no knowledge or information of such suit or decree until January, 1916. Thus the suit by original bill in the instant case, filed by third parties to the decree sought to be vacated, was brought ■jvithin the time' prescribed by law.
For the failure of jurisdiction of the chancery court in the suit of Gill v. Moore, these appellees, the devisees of Abraham G. More, deceased, were not deprived of their property in question by the due process of law, and *521 the decree there rendered has no binding effect as to either of them.
The decree of the chancellor is affirmed.
Affirmed.