116 P. 573 | Okla. | 1911
On January 11, 1908, Wm. A. Welch, Jr., plaintiff in error, sued Geo. W. Ladd, defendant in error, in the district court of Grady county, at Chickasha, in ejectment for the N.E. 1/4 of the S.E. 1/4 of section 8, the N. 1/2 of the S.E. 1/4 of the S.E. 1/4 of section 8, the S.W. 1/4 of the S.E. 1/4 of the S.E. 1/4 of section 8, the N.E. 1/4 of the N.W. 1/4 of N.E. 1/4 of section 17, the N.W. 1/4 of the N.W. 1/4 of the N.E. 1/4 of section 17, the W. 1/2 of the S.E. 1/4 of section 8, the S.W. 1/4 of the N.W. 1/4 of the S.W. 1/4 of section 9, all of which land is in township 7 N., of range 7 W., of the Indian base and meridian, containing 180 acres, more or less. He claimed title thereto by warranty deed from David Willis and *95 wife, made, executed, and delivered to him on February 17, 1905. Defendant claimed title thereto by virtue of a judgment rendered and entered by the United States Court for the Indian Territory, Southern District at Chickasha, on April 22, 1905, in a suit then and there pending wherein he was plaintiff and Winnie Willis as the widow, and David Willis as the son and sole heir of Josiah Willis, the former owner of said land, were defendants, decreeing that they specifically perform their contract to convey said land to him, which was done, a copy of which said judgment was pleaded and introduced in evidence and held on a trial to the court to convey to defendant the superior title. There was accordingly judgment rendered and entered for defendant, and that plaintiff take nothing by his suit. He brings the case here, and assigns that the court erred in admitting in evidence the record of said judgment and holding as stated, because, he says, said judgment is void on its face. Said record discloses that Geo. W. Ladd, defendant in error, brought said suit as stated in the Southern District, where the land lay, to compel the specific performance of the contract as stated, alleging in his complaint that defendants were residents of the Central District. Said record also discloses that the judgment pleaded was by default and based upon personal service on defendants in the Central District where they resided.
Plaintiff contends that said suit was brought in violation of that part of section 7, Act. Cong. March 1, 1895, c. 145, 28 Stat. 693, which reads: "That all civil suits shall be brought in the district in which the defendant or defendants reside or may be found, * * *" and hence said service was void, and conferred no jurisdiction upon said court over the person of defendants to enter the judgment relied on. Seeking to avail himself of an exception, defendant contends that said suit was properly brought in the district where the land lay in virtue of another statute in force in that jurisdiction at that time (Mansf. Dig. § 4994 [Ind. T. Ann. St. 1899, § 3199]), which reads:
"Actions for the following causes must be brought in the county in which the subject of the action, or some part thereof *96 is situated: First. For the recovery of real property, or of an estate or interest therein. Second. For the partition of real property. Third. For the sale of real property under a mortgage, lien or other incumbrance or charge. Fourth. For an injury to real property."
— And in virtue of that part of Act Cong. May 2, 1890, c. 182, § 32, 26 Stat. 81, which reads:
"That the word 'county' as used in any of the laws of Arkansas which are put in force in the Indian Territory by this act shall be construed to embrace the territory within the limits of a judicial division in said Indian Territory, and when within said laws of Arkansas the word 'county' is used the words Judicial Division may be substituted therefor in said Indian Territory for the purposes of this act."
Said action, being one for specific performance of a contract to convey land with no element of trust in it, was one inpersonam and not one "for the recovery of real estate or any estate or interest therein" so as to form an exception to the rule laid down in the statute relied on by plaintiff. In Spurret al. v. Scoville, 3 Cush. (Mass.) 578, the court, speaking of an action of this character, said:
"This is strictly a proceeding in personam. There is but one person who is the party defendant, and he is not a passive party, but must be eminently active in the performance of any decree which may be made against him. The whole object of the bill is to compel the defendant to execute a conveyance of land, as is alleged, according to his contract."
Miller, Adm'r, v. Rusk,
"And it is very clear a defendant cannot be compelled to answer in a county other than that of his residence, under this exception in the statute, when the sole object of the suit, as to him, is a decree for specific performance, though there were other defendants against whom the plaintiff sought a recovery for an injury to the possession or estate. The 'recovery of land' manifestly has reference to the possession; and 'damage thereto,' as manifestly has reference to an injury to the possession, or to the freehold or estate, and not, as the argument of the appellant assumes, damages for the breach of the contract to make title. Where the latter is the object, the suit is merely personal; the recovery operates in personam, fixing only the personal liability of the party contracting, not affecting the right of property or possession of the land contracted to be conveyed, and must be brought in the county of the defendant's residence. So in the present case a decree would operate only a conveyance of the legal title, and should be binding upon the defendant personally to the extent of the obligation of his contract."
See, also, Lowe, Executor, et at. v. Mann,
"There is no doubt that specific performance, looking alone to its nature, operates in personam entirely, and that as a consequence, independently of statute, a suit to compel the execution of title papers can be brought only in the county of the defendant's residence." *98
— And after holding that section 46 of the Civil Code of Kansas (General Statutes, 1901, § 4476), identical with the one under consideration, did not apply, or authorize the suit to be brought elsewhere, further said.
"Suits for the performance of agreements are not brought to determine titles, because, if so, they would operate on theres, but they are brought to enforce purely personal contracts. Of course, if the defendants obey the decree, the title will pass, and the court may in proper cases order the decree to stand as a conveyance, in which instance also the title will pass; but, nevertheless, the object of the suit is not to determine the title, but to compel the defaulting party to abide his agreement."
— and reversed and remanded the case.
We are therefore of opinion that said suit for specific performance should have been brought in the Central District, where defendants reside, and not in the Southern District, where the land lay, and for the reason that it was not, and it so appears on the face of the judgment relied on, the same is void and conveys no title to defendant, and we would so hold but for the fact that it further appears from the face of the record that on April 29, 1905, after said judgment by default was taken, and at the same term, defendants by their attorneys moved the court to "set aside and vacate said judgment and permit them to file their answer, which they now tender." This motion was supported by affidavit in effect that they were full blood Indians, uneducated and illiterate, and could speak little English, and that, not realizing the situation, did not employ counsel to represent them in the suit until after the default was taken, whereupon their counsel came immediately and moved as stated. To the overruling of this motion and refusal of the court to allow them to file said answer defendants excepted, but took no further action. As the motion did not seek to vacate the decree on jurisdictional grounds, but invoked the jurisdiction of the court to exercise its discretion and set aside the decree, the filing of same by defendants constituted a general appearance, a waiver of all defects in the service of process by which the court sought to exercise jurisdiction over their persons and validated said *99
judgment. 2 En. Pl. Pr. p. 655. Also, Kaw Life Ass'n v.Jennie Lemke,
"Where a motion is made in which questions are raised that go to the jurisdiction of the court over the parties, and in which questions are also raised that cannot be raised by special appearance but can be heard only upon a general appearance, the parties will be taken and held to have entered a general appearance, and in such case defects in the service of summons will be deemed and held to have been waived, even though such appearance be made after judgment and upon a motion to vacate and set aside such judgment."
— And affirmed the judgment of the trial court. After careful search we find nothing in the adjudications of the Supreme Court of Arkansas to militate against this rule.
Mayer v. Mayer,
"A party cannot come into court, challenge its proceedings on account of irregularities, and, after being overruled, be heard to say that he never was a party in court, or bound by those proceedings. If he was not in fact a party, and had not been properly served, he can have the proceedings set aside on the ground of want of jurisdiction, but he must challenge the proceedings on that single ground. This is familiar doctrine."
The judgment not being void on its face and subject to collateral attack for the reason assigned or because rendered before the return day or the time for answering had expired (6 Pl. Pr. p. 98; Van Vleet on Col. Att. § 712), we are of opinion that the same vested in defendant in error the superior title to the land in controversy, and, finding no error, the judgment of the lower court is affirmed.
All the Justices concur.