62 Neb. 344 | Neb. | 1901
On the 24th day of November, 1880, Erwin Davis held the record title to certain lands in Knox county. On the date mentioned Algernon S. Patrick commenced an action in the district court of that county and procured an order of attachment to be levied on said land. On the 18th day of April, 1882, the case was removed to the United States circuit court, wherein a judgment was rendered in favor of the plaintiff on the 21st day of January, 1890, and an order made for the sale of the lands for the satisfaction thereof. In pursuance of said order, on the 15th day of May, 1894, the lands were sold to Lionel 0. Burr by the United States marshal, whose deed to Burr therefor was filed for record in the office of the clerk of Knox county on the 26th day of May, 1894. On the day the deed was executed Burr conveyed the premises to J. 0. Crawford and R. C. Peters by warranty deed, which was recorded on the 28th day of May, 1894. On the 23d day of May, 1894, Crawford and Peters conveyed the land to Alvin L. Leigh, the plaintiff in this case. On the 28th day of December, 1882, and while said attachment proceedings were pending, a warranty deed to said lands, purporting to have
From the foregoing statement it will be seen that both parties trace their title to Erwin Davis. The sole question to be determined in this case is whether the plaintiff is
The actions for the foreclosure of the tax liens were brought under article 5 of chapter 77 of the Compiled •Statutes. Section 4 of that article is as follows: “Service-of process in causes instituted under this chapter shall be the same as provided by law in similar causes in the district courts, and where the owner of the land is not known, the action may be brought against the land itself, but in such case the service must be as in the case of a nonresident ; if the action is commenced against a person who disclaims the land, the land itself may be substituted by order of court for the defendant, and the action continued for publication.” In each of the foreclosure cases, the subdivision of the land to be affected thereby was made a party as provided by the section just quoted, and service was had by publication. The affidavit in each case, except as to the land described, which varied according to the subdivision made a party, was as follows:
Farmers Loan & Trust Company vs. Henry A. Root and N. E. ¼, Sec. 27, Twp. 31, Range 3 West 6th P. M.
Affidavit for Publicatl0n of Notlce-
“State of Iowa, Woodbury County,
’
“I, M. J. Sweeley, being sworn, do state that I am the attorney for the plaintiff above named; that this case is one of those named in section 77, title V., of the Code of Civil Procedure of the state of Nebraska, and is an action relating to real property in said state in which the defendants have or claim a lien or interest actual, or contingent, and the relief demanded consists, wholly or partially, in excluding the defendants from any interest therein; that the defendant Henry A. Root is a non-resident of said state of Nebraska; and that service of summons cannot be made on him within said state.
“I further state that the owner of the real estate involved in said action and described above is not known, all of which I verily believe to be true.
“(Signed) M. J. Sweeley.
“Subscribed and sworn to before me this 28th day of September, 1891. L. Greenwood,
[seal.] “Notary Public
The plaintiff insists that the affidavits were insufficient, and for that reason the court acquired no jurisdiction.
One objection urged against the affidavits is that they were sworn to some two days before the petitions were filed in the respective cases. The argument on this point, as we understand it, is that between the making of the affidavit and the filing of the petition conditions might have changed so that service might have been had on the defendant in this state, or in some other way, so that the affidavit could not have been truthfully made at the time of filing. It is clear that the law must permit some inter
Another objection urged against the affidavits is that they are sworn to upon information and belief. The affidavits contain the positive statements of the affiant which are followed by these words: “All of which I verily believe to be true.” We do not believe the objection is well taken. Among other things, the affidavit must show that service can not be had on the defendant in this state. In the very nature of things, upon this point, at least, the affiant, whatever the wording of the affidavit, can never have positive knowledge. That he makes such statement upon information and belief, is a necessary implication. To expressly state that which, in the absence of such statement, would be necessarily implied, affects only the form and not the substance of the affidavit. Colton v. Rupert, 60 Mich., 318; Pratt v. Stevens, 94 N. Y., 387; Belmont v. Cornen, 82 N. Y., 256; Howe Machine Co. v. Pettibone, 74 N. Y., 68. In Kansas such an affidavit has been held defective,
A more serious objection to the affidavit is that the matters set forth are insufficient to warrant service by publication, and for that reason the court acquired no jurisdiction by such service. The section of the statute, under Avhich the actions under consideration were brought, hereinbefore set out at length, provides that service must be as in case of non-residents. Section 77 of the Code of Civil Procedure prescribes the manner of making service on non-residents, and, so-far as is material for present purposes, is as follows: “Seiwice may be made by publication in either of the following cases: First — In actions brought under the fifty-first, fifty-second and fifty-third sections of this code, where any or all of the defendants reside out of the state. * * * Fourth — In actions AAdiich relate to, or the subject of which is, real or personal property in this state where any defendant has or claims a lien or interest, actual or contingent therein, or the relief demanded consists A\rholly or partially in excluding him from any interest therein, and such defendant is a non-resident of the state.” The actions mentioned in sections 51, 52 and 53, referred to in the section just quoted, are actions for the recovery of real property, or of an estate or interest therein, actions for the partition of real property, actions for the sale of real property, under a mortgage lien or other incumbrance or charge, and actions to compel the specific performance of a contract for the sale of re^l estate. Section 78 of the Code of Civil Procedure relating to the affidavit for service by publication is as follows: “Before service can be made by publication, an affidavit must be filed, that service of a summons cannot be made Avithin this state, on the defendant or defendants to be served by publication, and that the case is one of those mentioned in the preceding section. When such affidavit is filed the party may proceed to make service by publication.”
One of the grounds urged against the sufficiency of the
"" It is argued, in support of plaintiff’s second proposition, that at the time of the commencement of the actions to foreclose the tax liens, Algernon S. Patrick, plaintiff in the attachment proceedings in the United States circuit court, by virtue of such proceedings had a lien on the land in controversy and was therefore an owner within the sections of the revenue law, hereinbefore quoted; that his lien was a matter of record in Knox county, and that, therefore, the plaintiff in such foreclosure proceedings had the means of knowledge of such lien; that meaus of knowledge, being equivalent to knowledge, the owner of the land was not unknown to the plaintiff in the actions to foreclose the tax liens, and that as the proceeding against the land Avas purely statutory, and authorized only in case the OAvner is unknown, the several decrees are not binding on Patrick, nor those claiming under the title acquired in the attachment proceedings. The validity of the argument stated depends on the meaning to be given to the word “OAvner.” Its meaning varies according to the context. In proceedings in the exercise of the delegated right of eminent domain by a railroad company, the word has been held to include any person having any interest in land. Gerrard v. Omaha, N. & B. H. R. Co., 14 Nebr., 270; Dodge v. Omaha & S. W. R. Co., 20 Nebr., 276. In those cases the meaning given to the word by this court would include an attaching creditor; but it is clear from
The validity of the proceedings for the foreclosure of the tax liens is assailed on still another ground, and that is, they were brought, tried and determined and the land sold in pursuance thereof, while the land was subject to an attachment issued in an action pending in the circuit court of the United States, and for that reason, it is urged, the proceedings were void, and the deed executed by. the sheriff to the defendant conveyed no title. The doctrine of the supreme court of the United States is that when two courts have concurrent jurisdiction, that which first takes cognizance of the cause has the right to retain it to the exclusion of the other; that where property is in gremio legis, if it be a court of rightful jurisdiction, no other court can interfere and wrest from it the possession and jurisdiction first obtained; and that a sale, under an order of one court, of property in the custody or possession of another conveys no title. Gumbel v. Pitkin, 124 U. S., 131; Heidritter v. Oil-Cloth Co., 112 U. S., 294; Freeman v. Howe, 24 How. [U. S.], 450; Krippendorf v. Hyde, 110 U. S., 276; Covell v. Heyman, 111 U. S., 176; Vaughan v. Northup, 15 Pet. [U. S.], 1; Williams v. Benedict, 8 How. [U. S.], 107; Peale v. Phipps, 14 How. [U. S.], 367, 372; Barton v. Barbour, 104 U. S., 126; Taylor v. Carryl, 20 How. [U. S.], 583; Gay v. Brierfield Coal & Iron Co., 94 Ala., 303, 16 L. R. A., 564. The case last-cited contains an exhaustive review of the authorities from which the rule just stated is deducible. This rule has its foundation, it would appear, not merely in comity, but in necessity; for were it otherwise, the orders of one court might be offset by those of another, and the parties left without any remedy; besides, in their rivalry for possession of property in controversy, a conflict would arise that would not only be embarrassing in the administration of justice, but would be liable to lead to unseemly strife and personal conflicts between the officers of the different
In the case of Prugh v. Portsmouth Savings Bank, 48 Nebr., 414, which was brought to restrain a United States marshal from selling certain lands on an execution issued from the United States circuit- court, it was held “that when land has been levied upon, it is as much in custody-of the court, and under the control of the process, as when 'personal property has been seized on execution or in attachment, and the state court was, therefore, without' any authority by injunction or otherwise to interfere with the marshal in the execution of the writ.” It will be observed that the foregoing is, to some extent at least, dictum. It- was not necessary to decide in that case whether the lands levied upon were in the custody of the court; the precise question involved was, whether the state court might, by injunction, restrain the execution of the process of a federal court. With due regard for the learning of the writer of that opinion, we do not believe the dictum in that case should be adopted as a rule in this state. By the levy of the attachment on the real estate the federal court did not obtain possession of the premises; the possession remained unchanged. The effect of the levy was merely to give the attaching creditor a lien on the equity of redemption of the defendant. By the subsequent foreclosure and sale of the premises under the tax lien the state court
In National Foundry & Pipe Works v. Oconto City Water-Supply Co., 81 N. W. Rep., 125, the supreme court of Wisconsin held that the commencement of a suit in the federal court, to enforce a mechanic’s or material-man’s lien on property, does not preclude the foreclosure of a mortgage on the same property in the state court; that where there is no possession, other than constructive, a suit on a different cause of action may be commenced in the state court and carried to judgment, and actual possession of the property obtained under it, notwithstanding the pendency of the action in the federal court; citing Compton v. Jesup, 68 Fed. Rep., 263. In re Hall & Stilson Co., 73 Fed. Rep., 527, it was held that the rule of comity which forbids the seizure of property subject to the jurisdiction of one court of concurrent jurisdiction applies only where there is actual or constructive possession of the property by the former court; that the levy of an attachment on real estate gives the court whence the process is
In our opinion, therefore, the pendency of the action in the federal court was no obstacle to the prosecution by the holder of the tax lien, of the actions in the state courts for their foreclosure, and the sales made in pursuance of such actions are valid and binding, and the defendant in this case thereby acquired a good title to the land in controversy as against the plaintiff. We therefore recommend that the decree of the district court be reversed and the cause remanded with directions to enter a decree in accordance with this opinion.
For the reasons given in the foregoing-opinion the judgment of the district court is reversed and cause remanded, with directions to enter a decree in accordance with this opinion.
Reversed and remanded.