Lead Opinion
Plaintiff in error brought an action of ejectment in the Circuit Court for the county of Shiawassee, against defendants in error, for the recovery of the undivided one-fourth of certain lands situate in that county; and having shown on the trial a prima facie title, derived through a deed from Daniel Ball and wife to Jonathan Child, dated June 17th, 1889, and from Child to Henry J. Whitehouse, dated June 15th, 1842, and from Whitehouse to himself, dated February 21st, 1858, rested his case.
The defendants sought to defeat the plaintiff’s title, and to show title in themselves, by a partition of the premises under a bill filed January 21st, 1851, in the Circuit Court in Chancery, for that county, by Charles L. Goodhue against Jonathan Child, Henry J. Whitehouse and others; by a sale of the whole of the premises (one-fourth of which was claimed by the plaintiff in ejectment) made in the partition suit, to Orville S. Goodhue and Mary A. Thomas, August ¡16th, 1851, and a deed from said purchasers to the defendants. The partition suit had been finally terminated, the decree signed, the sale confirmed, and the record completed by enrollment.
Child and Whitehouse, through whom the plaintiff in ejectment claimed, were non-residents of the State when the partition suit was instituted, and for aught that appears still continue so; neither of them was served with process, nor had any notice of the suit except such constructive notice as was given by the publication of the order for appearance, which will be presently noticed, and neither of them ever appeared in the suit.
The defendants, however, instead of offering the whole record of the proceedings in the suit, offered, first, the bill separately. To this the counsel for the plaintiff objected, on the ground that it formed but a part of the entire record, and was not admissible without the rest of the record; this objection was overruled, and the bill read. Defendants then offered in evidence separately and successively certain subsequent proceedings in the cause; the order for the appearance of Child and Whitehouse, nonresident defendants, made by the Injunction Master, January
It does not appear that the whole record was offered at any time, nor even all those parts of the record which related to Child and Whitehouse, or which might affect their interests. No affidavit, upon which alone the order for the appearance of Child and Whitehouse could be made, was read or offered, nor does it appear whether such affidavit was among the enrolled papers which constituted the record. The only intimation that such an affidavit ever existed is the recital of the fact in the order for appearance and publication granted by the Master, which purports to have been based upon such an affidavit.
The statute under which the proceedings were had, Rev. Stat. of 1846, p. 497, §11; Comp. L. §4626, provides, “If any parties having an interest in such lands are unknown, or if either of the known parties reside out of this State, or can not be found therein, and such facts be made to appear to the Court by affidavit, an order may be made by the Court, containing a sufficient description of the premises, &o., and requiring all persons interested to appear and answer the bill by a day in such order to be specified; which order shall be personally served, or shall be published,” &c.
Without at present expressing any opinion as to the power of the Injunction Master to grant the order, or the sufficiency of the description of the premises, we will first dispose of the question in respect to the affidavit.
Under this statute the rights of parties residing out of the State may be affected, and their title to real estate to any amount may be divested, without any actual notice that a suit has ever been instituted. The power thus to affect their rights depends entirely upon the statute. The statute can not therefore be enlarged by any equity of construction as against them, but upon every principle should be strictly construed; it must be held to prohibit the exercise of the jurisdiction until the preliminary steps required by the statute have been taken: — Gallatin v. Cunningham, 8 Cow. 370, per Woodworth J. Courts are bound by the dictates of natural justice carefully to scrutinize every step of the proceedings, to enforce a strict compliance with all the statute requirements, that absent parties may not be deprived of those safeguards which the statute has provided for the protection of their rights. Without this vigilance on the part of Courts, the statute
These proceedings in partition, at least as to non-resident defendants, do not come within the general or ordinary jurisdiction of Courts of Chancery, but the jurisdiction as to such proceedings is special and limited, .and entirely dependent upon the statute. The Circuit Courts in Chancery, though in ordinary cases of equity cognizance courts of general jurisdiction, must, we think, as to these special proceedings, be considered as courts of special and limited jurisdiction, and no presumption of jurisdiction should be indulged as in suits at common law, or ordinary suits in equity, in courts of general jurisdiction. All the necessary facts to confer jurisdiction must therefore affirmatively appear upon the record. See Denning v. Corwin, 11 Wend. 647; Foot v. Stevens, 17 Wend. 488, remarks of Cowen Judge upon case last cited; Gallatian v. Cunningham, 8 Cow. 370, per Woodworth J.; Thatcher v. Powell, 6 Wheat. 119; Shivers v. Wilson, 5 Mar. & John. 130; Eastman v. Jones, 2 Yerg. 493. I am aware there have been some decisions to the contrary; but as to special proceedings to acquire jurisdiction over non-residents, without actual notice, I think this the only safe rule.
But it is insisted by the counsel for defendants in error, that the recital in the order that such an affidavit had been presented, is sufficient evidence of the fact till the contrary appears. We have already shown that, upon the hypothesis that such an affidavit was made, it must, in the absence of all proof to the contrary, be presumed to form part of the record; and, this being so, the failure of defendants to offer it, and their reliance upon fhe secondary evidence furnished by the recital, warrants the inference that if produced it would not have been found sufficient to warrant the proceedings. And if not found of record, where it naturally belongs, as the very foundation of all the proceedings, its absence, unexplained, would authorize
We think, therefore, as no jurisdiction of the Circuit Court in Chancery was shown as to Child or Whitehouse, the proceedings in that case were erroneously allowed to go to the jury; that the Court on the trial of the eject.ment ought to have charged the jury (as requested by plaintiff’s counsel) that no jurisdiction was shown. ' The judgment should be reversed, with costs. We do not deem it necessary to pass upon the other questions raised in the case, many of which may not again arise, and others may be presented in a different form. The judgment should be reversed, and a new trial granted.
Concurrence Opinion
I concur with my brethren that the judgment should be reversed and a new trial granted. But I concur in the result, for the reason that I think the bill in the suit in Chancery between Goodhue and Child, Whitehouse and others, was insufficient to make Whitehouse a party, and because the right and title of Whitehouse was not determined by the decree. His interest was not set out as required by the statute, and the master reported that he had none, when in fact he had the whole of Child’s title, by a deed duly recorded. The decree therefore virtually dismissed the bill as to him; at any rate, it made no partition or disposition of his interest.
As to Child, I think the decree would be binding if he had any interest; for the proceeding for partition was within the general jurisdiction of the Court, and the order of publication was regularly made. If we hold that this is a special proceeding, or that every jurisdictional fact must be affirmatively shown, we shall strip the Court of most of its general jurisdiction. Every presumption is to be made in favor of the regularity of proceedings in partition cases as in others; and the recitals in the orders of the Court are to be taken as true.
This rule, I think, applies to the order of the Injunction Master in this case. I have no doubt of his authority, nor that his act was the act of the Court.
The offer of the defendants to show the proceedings and decree in the Chancery suit, although' perhaps irregular, was not error, for it appears that the enrollment, so far as affected the rights of the litigating parties, and probably the whole, was given in evidence. The mode and order in which evidence is given, although they may be irregular! are not ground of error, if all be introduced which the law requires. I think also that the evidence of Gould and others, tending to show that the deed to Whitehouse
Judgment reversed.