Truman v. Robinson

By the Court, Crockett, J.: The plaintiff’s title to the demanded premises is deraigned through a proceeding commenced in the District Court in 1865 to subject the land to sale, for the payment of delinquent taxes. In support of his complaint, he put in evidence the complaint, summons, and judgment in the tax suit, and the Sheriff’s deed, together with the order of sale or copy of the decree issued to the Sheriff. It appears that the tax suit was commenced against one Vantine, and certain fictitious defendants, and also against the real estate. A summons was issued, which was personally served on Vantine, as appears by the Sheriff’s return; but there was no proof of service on any one else or on the real estate, except in so far "as the recitals of the judgment prove service. Vantine’s default was entered, and the judgment recites that it appeared to the satisfaction of the Court “ that all owners and claimants of the property above described have been duly summoned to answer the complaint herein and have made default in that behalf.” The defendant claims that in a proceeding in rem against the real estate, the statutes then in [626]force provided that service could only be made by publication of notice for eight weeks, and that a judgment by default could not be entered until the expiration of forty days after the service was complete. He insists, therefore, that it affirmatively appears on the face of the record that the real estate could not have been served, inasmuch as the requisite time for the publication had not transpired between the commencement of the action and the entry of the judgment; and it is insisted that for this reason the judgment against the real estate was void, and the Sheriff’s deed conveyed no title. But I think service by publication was not the only method of acquiring jurisdiction over the real estate.

Section forty-one of the Revenue Act of 1861 (Stats. 1861, p. 433,) provides that in an action against the real estate, the summons may be served “ by delivering a copy thereof to the person or persons in possession of the same; and further, as to all real estate, by posting a like copy in'some public place thereon.” By the third section of the Act of May 12th, 1862 (Stats. 1862, p. 520), it is provided that in such actions service of the summons “ may be made by publication of a copy of the summons once each week for eight successive weeks, in a newspaper published in the county in which the action is commenced; the service of the summons shall be complete at the expiration of the time of such publication.” Section five provides that as against the real estate, and all persons claiming an interest therein, the publication shall be equivalent to a personal service, “ and shall bind the interest of every owner and claimant thereof) whether such owner or claimant is named as a party to such action or not.” Section six provides that if no answer be filed within forty days after the publication is complete, the facts stated in the complaint shall be deemed to be true, and the Court shall have the same jurisdiction, and its judgment shall have the same effect, as if every owner and claimant had been made defendant, and had been personally served.