Kane v. Rock River Canal Co. , 15 Wis. 179 ( 1862 )

By the Court,

PAINE, J.

The only question presented on tbis appeal is as to tbe effect of tbe record in tbe partition suit under wbicb tbe plaintiff claims title, tbougb its decision may not determine at all tbe ultimate rights of tbe parties. It is claimed by tbe appellant, that even if tbe partition proceedings were properly taken, to bind unknown owners, yet they should be held to have bound only their interest as tenants in common, and that none of them would be precluded from afterwards coming in, and showing a paramount title in severalty to any part of tbe partitioned premises. Tbis position is in conflict with tbe decision of tbis court in Nash vs. Church. 10 Wis., 303, and tbe argument in tbis case has not changed tbe conclusion there expressed. It is undoubtedly true, as contended, that tbe object of partition proceedings is to make division among tenants in common. It is therefore necessary, in such proceedings, to allege that tbe land sought to be divided is thus jointly owned by tbe parties. And if any party claims tbe whole or any part of it in severalty, it is his duty to set up that fact to defeat or suspend the partition proceedings, until that question could be determined. If he does not do tbis, the adjudication that the land is held in common by tbe parties, and thus properly subject to partition, being a necessary part of the judgment, he is as much concluded by tbe judgment upon that point, as upon tbe amount of his interest or any other matter necessarily involved. And if properly made a party as an unknown owner, he is bound in the same way as be would be if named as a party and served with process personally. And it would introduce great confusion into tbe settlement of titles, and substantially defeat the object of partition proceedings, if any of tbe parties to those proceedings might, after they were all completed, without having set up any claim of title inconsistent with them, bring actions against the other parties, to recover their portions, upon a claim of paramount title in severalty. Without attempting to comment on them in detail, we will refer to tbe following authorities as sustaining tbis conclusion: Kester vs. Stark, 19 Ill., 328; Foxcroft vs. Barnes, 29 Maine, 128; Rogers vs. Tucker et al., 7 Ohio St., 417; Pfeltz vs. Pfeltz et al., 1 Md. Ch. Dec., 455; Reese vs. Holmes, 5 Rich. Eq., 540, 541; Blakely vs. Calder, 15 N. Y., 617; Mead vs. Mitchell, 17 N. Y., 210; Croghan vs. Livingston, id., 218, 227.

The same conclusion seems also to be sustained by those cases, some of which were cited by the counsel for the appellant in Nash vs. Church, 10 Wis., 309, which hold that a partition suit is not designed as a substitute for ejectment, to try conflicting titles, and that the court will not proceed to a partition until the title is settled. Such being the rule, if the court does proceed to a partition, it must therefore adjudge that the title has been settled, and the parties should be concluded by it.

But as the judgment in partition proceedings has such effect, we think that a good reason why.the statute should be strictly complied with, to give the court jurisdiction over unknown owners, who have no personal notice. It is not probable that the plaintiff in the partition suit regarded this defendant as having any such interest in the property as required it to be made a party, as the allegations of the complaint seem to dispose of the entire title among others. Yet we think its allegations also sufficiently comprehensive to include any and all unknown owners, provided the title to any portion proved to be in different parties from those supposed. So that the appellant here was bound, if the proceedings were sufficient to bind unknown owners. The only objection made to them, so far as this point is concerned, is that the affidavit made to authorize publication against unknown owners, does not show that there were no other owners known to the other complainants, besides the one making the affidavit. The statute provided that an order of publication might be made where there were parties having an interest who were “ unknown ” &c., and “ the fact was made to appear by affidavit ’’ &c. R. S. 1849, chap. 108, sec. 11. This statute does not expressly say to whom these owners must be “ unknown,” but it obviously intended that they must be unknown to the plaintiff in the suit, as nobody else’s knowledge or want of knowledge on the subject would be material. The affidavit appearing in this partition record was made by Charles I. Kane, one of the complainants, and states merely in tbe general language of tbe statute tbat there were parties interested in tbe premises who were unknown. did not even say tbat they were unknown to him, though perhaps that would be tbe fair interpretation of it. But we do not think its construction could go beyond tbat, or tbat it could be held to show tbat there were not other owners known to the other complainants in tbe suit. It does not purport to state tbat there were not, and probably the person making tbe affidavit could not have sworn to the knowledge of his co-plaintiffs on the subject. Tbe question then is, whether, where there are several complainants in a partition suit, an affidavit by one of them that there are parties interested who are unknown, which by its most favorable construction can be only held to mean that they are unknown to him. is sufficient to authorize an order of publication which will give jurisdiction over unknown owners,there being nothing to show that there were not other owners known to the other plaintiffs ? We think it is not, and the statute never intended to allow any party to be proceeded against as an unknown owner, who" might have been a known owner to some of the plaintiffs in the suit. The general policy of the law upon the subject of notice to all who are interested in the litigation, as well as the clearest dictates of justice, require actual notice to be given, where it can be done. Methods are provided of giving constructive notice where actual notice cannot be given, and this is of necessity the ease with respect to unknown owners in partition suits. But they should be unknown to all the plaintiffs. And the policy of the law might often be entirely defeated by allowing them to be proceeded against as unknown owners merely because they were unknown to one plaintiff, although they might have been well known, as owners, to all the others.

Our conclusion on this point is sustained by the following cases: Jeffrey's Heirs vs. Hand’s Heirs, 7 Dana, 89; Thruston et al. vs. Masterson et al., 9 id., 236; Taylor's Heirs vs. Watkins et al., 4 B. Mon., 569.

We do not think that the appellant’s point that the Oanal Company could not under any circumstances be proceeded aSa™st as arL unknown. owner, for the reason that its charter a public act, is well taken. Every body might be chargeable with a knowledge of the provisions of the charter, but certainly no one would be bound to know that the company claimed to own or owned an interest in any particular tract of land.

But for the reason already given, we think the judgment, which was based entirely upon the partition record, must be reversed, with costs, and a new trial ordered.

Ordered accordingly.

Note. — On a petition for rehearing (which was overruled), the counsel for respondents argued that the affidavit made by Charles I. Kane as to “unknown owners,” was sufficient, but that if otherwise, the presumption should be that another affidavit was made; that the circuit court was called upon by the statute directly to adjudicate upon the sufficiency of the proof by affidavit, and that its decision cannot be reversed in a collateral proceeding, citing Grignon’s Lessee, vs. Astor et al., 2 How., 339; Tallman vs. Ely, 6 Wis., 252; Parker vs. Kane, 22 How., 1; Foot vs. Stevens, 17 Wend., 483; and Kart vs. Seixas, 21 id., 40, overruling Denning vs. Corwin, 11 Wend., 647; Kempe’s Lessee vs. Kennedy, 5 Cranch, 173; Skillern’s Exec'rs vs. May’s Exec’rs, 6 id., 267; Cole et al. vs. Hall, 2 Hill, 625; Ex parte Tobias Watkins, 3 Pet., 205; Peacock vs. Bell, 1 Saund., 74. Rep.