Albers v. Kozeluh

Duffie, C.

About the year 1871 Henry Stately made homestead entry of the east half of the southwest quarter of section 22, township 7 north, range 5 east of the 6th P. M. in Lancaster county, Nebraska. He received a patent therefor January 20, 1876. He occupied this land as a homestead until some time in 1880, when, his wife becoming insane and an inmate of the asylum for the insane at Lincoln, he found homes for his infant children — the oldest being then about eleven years of age — and went to Colorado for the avowed purpose of earning money to pay an incumbrance upon the land of $250, existing in the form of a mortgage made January 8, 1877, to the New England Mortgage Security Company, and to earn means to support and provide for his family, which he hoped to reunite at a future date. Some time after going to Colorado he died, and one J. C. Crooker, residing in the city of Lincoln and claiming to be the assignee of the mortgage made to the New England Mortgage Security Company, in January, 1886, brought an action to foreclose the same, obtained a decree of foreclosure, and in May, 1886, said land was sold under the decree and bid in by said Crooker, who afterwards sold the same to one Patterson, who thereafter sold and conveyed the same to the appellee Joseph Kozeluh.

James F. Lansing, a real estate and loan agent residing in the city of Lincoln, testified upon the trial, and his evidence was not contradicted, that he was doing business for-the Corbin Banking Company of New York, which company was in some manner connected with the New England Mortgage Security Company, and apparently had charge of its collections, and that in the year 1882, Crooker & Gregory, claiming to act as attorneys for Henry Stately, paid in the amount due upon the Stately mortgage, which he forwarded to the Corbin Banking Company, and shortly thereafter received a release of said mortgage from the New England Mortgage Security Company, which he delivered to said Crooker & Gregory.

This action was brought by the children of said Stately, and by Royal L. Stewart, guardian of Dora Stately, his insane wife, to have the sheriff’s deed made to Crooker and the subsequent conveyances of said land, canceled and set aside, and for the rental value of said premises during its occupation by the defendant.

It is first claimed that the mortgage was satisfied and discharged prior to the institution of foreclosure proceedings by J. C. Crooker. The evidence, to our mind, is quite conclusive that such is the case, but this can not avail the plaintiffs at • this time. In his petition for a foreclosure Crooker alleged that he was the assignee of said mortgage, and the district court so found. If the court had jurisdiction -to entertain and try the action this finding is conclusive, and can not be questioned in this action.

It is further urged that the district court had no jurisdiction to try and determine the foreclosure action, and this because no personal service was had npon the defendant Henry Stately, and no sufficient affidavit for service by publication was made and filed in the case. The affidavit is in the folloAving form:

“In the District Court of Lancaster County, Nebraska.

' “Jabez C. Crooker, Plaintiff, v. Henry Stately, Dora Stately and L. B. Bronson, Defendants. Affidavit.

“Jabez C. Crooker, plaintiff in the above entitled action, being first duly sworn, deposes and says, that on the-day of January, A. D. 1886, he filed a petition in the district court of Lancaster county, Nebraska, against Henry Stately, Dora Stately and L. B. Bronson, the object and prayer of which is to foreclose a certain mortgage executed by the defendant to the Ncav England Mortgage Security Company (and duly assigned to said plaintiff) upon the east half (1) of the southwest quarter of section 22, town 7 north, range 5 east, in Lancaster county, Nebraska, to secure the payment of a note and coupon, dated December 23, 1876, for the sum of $250 upon the note, and $18.20 upon coupon, due and payable December 23, 1881; that there is now due upon said note, coupon and mortgage, the sum of $374 and $37 attorney fees, and plaintiff prays that said premises may be decreed to be sold to satisfy the aihount due thereon.

“Affiant further states that defendant, Henry Stately, is a nonresident of the state of Nebraska, and service of summons can not be made within this state upon him.

“Wherefore plaintiff prays service upon said defendant by publication. ' J. C. Crooker.

“Subscribed in my presence and sworn to before me this 6th day of January, 1886. J. H! Broavn,

“Justice of the Peace."

Objection is made to this affidavit because it does not state any facts showing the absence of the defendant from the state of Nebraska at the time it Avas filed. It does recite that Staley “is a nonresident of the state of Nebraska, and service of summons can not be made within this state upon him.” An affidavit similar in this respect was held sufficient in Shedenhelm v. Shedenhelm, 21 Neb. 387.

It is further urged that the affidavit is fatally defective for want of venue. It will be observed that the affidavit does not disclose where it was made, or the county of which the justice before whom the same was executed was an officer. The authorities are conflicting as to the effect of a failure of an affidavit to disclose the venue where made. In- New York and some other jurisdictions such failure is held fatal, while in Illinois and some other states it is said that the presumption will obtain that the affidavit was made in the proper county, and, that the officer taking the same had jurisdiction to administer the oath. Our own decisions upon the question are not clear and satisfactory.

In Crowell v. Johnson, 2 Neb. 146, the affidavit was held sufficient, the court saying (p. 153) : “The affidavit was sworn to before the clerk of the court in which the actiowas pending; and it will be. presumed that the clerk administered the oath in the proper county.”

In Merriam v. Coffee, 16 Neb. 450, where objection was made-to the affidavit of an assessor, it is said (p. 451): “The first objection is, that there is no venue to the oaths of the assessors which were attached to the assessment rolls, nothing to show in what county or state they were administered. An examination of the record shows that the oath for the year 1870 was taken before the deputy clerk of Cass county, and filed in the office of the county clerk. The presumption in such case is that the oath was administered within the jurisdiction of the officer.”

These cases-, are to the effect that where they show on their face that they were taken before an officer of the county where filed, the presumption obtains that they were made in that county.

In Blair v. West Point Mfg. Co., 7 Neb. 146, 152, where objection was made to an affidavit of service of a summons, the court said: “Objection that the affidavit of service of the summons has no venue, is well falten. An affidavit-should show upon its face that it was taken within the officer’s jurisdiction.”

In this case it is not disclosed whether the officer before whom the affidavit Avas made was an officer of the county where the same Avas filed, but the presumption must obtain that such Avas not the case, or at least that the affidavit did not disclose such to be the case, else the court would have felt bound by its former holding in Crowell v. Johnson, supra.

In Byrd v. Cochran, 39 Neb. 109, the court quotes with approval the language of Judge Maxavell in Blair v. West Point Mfg. Co., supra, and cites in support thereof cases from the courts of New York, in which state the doctrine is firmly established that an affidavit of the character of the one under consideration is a nullity. Thompson v. Burhans, 61 N. Y. 52; Lane v. Morse, 6 How. Pr. (N. Y.) 394.

In the light of these decisions, we think that this court has unmistakably committed itself to the New York'doctrine that the affidavit must show upon its face the proper venue, or must disclose that the officer before Avho-m it was executed Avas an officer of the county Avhere the same was filed. We conclude, therefore, that the affidavit for service by publication was fatally defective; that no legal service by publication could be made thereunder; and that the court had no jurisdiction to entertain and try the fore: closure proceedings.

It is earnestly insisted by .the defendant that this is a collateral attack upon the foreclosure decree,’ and that the jurisdiction of the court to enter the decree will be conclusively presumed, and that neither the sufficiency of the notice or affidavit can be questioned or revieAved collaterally. We do not think that this position is tenable. The affidavit is jurisdictional to service by publication, and Avhere. there is no affidavit or where the affidavit is fatally defective the publication is void. Atkins v. Atkins, 9 Neb. 191; McGavock v. Pollack, 13 Neb. 535; Rowe v. Griffiths, 57 Neb. 488.

The plaintiff is not seeking to attack tbe decree in this case because of irregularities, but the claim is that the judgment is absolutely void; that what appears on its face as a judgment is not one, because of want of jurisdiction by the court to enter it.

In Chicago, B. & Q. R. Co. v. Hitchcock County, 60 Neb. 722, it is said: “In courts of general jurisdiction, the rule is that the proceedings taken, including questions of jurisdiction, are presumed to be regular and in conformity with law. Where, however, the record discloses the jurisdictional steps taken, and it is made to appear that no jurisdiction was acquired over the defendant, rhe rule invoked is rendered unavailing. Where a court is without jurisdiction over a defendant, the judgment rendered is void, and may be attacked as such by any one whose rights are affected by its rendition, and its invalidity shown in any action in which it may be called in question.”

The decree entered in this case and the sheriff’s deed based thereon, is a link in the chain of the defendant’s title. All persons claiming an interest in real estate, are bound to take notice of the recitals of all duly recorded deeds in their grantor’s chain of title. Hubbard v. Knight, 52 Neb. 400, 401. And this is true of all jurisdictional steps leading upi to a transfer by judicial sale. Where a judicial sale forms, one of the links in the chain of title under which a grantee claims, he is charged with notice of any fact showing want of jurisdiction in the court making or ordering the sale. Chambers v. Jones, 72 Ill. 275; Stegall v. Huff, 54 Tex. 193; Kelson v. Allen, 1 Yerg. (Tenn.) 360; Wade, Notice, sec. 327. A void judgment, the record in the cas.e showing its invalidity, is certainly no better authority for making a sale than is a valid judgment which has been paid and satisfied, and numerous cases are to be found holding that in such cases the sale is absolutely void and that no one can obtain any rights under such a sale. Hunter v. Stevenson, 1 Hill (S. Car.) *415; Weston v. Clark, 37 Mo. 568; Laval v. Rowley, 17 Ind, 36; King v. Goodwin, 16 Mass. 63; Wood v. Colvin, 2 Hill (N. Y.) 566.

1. Affidavit for Constructive Service: Jurisdiction. An affidavit for service of summons by publication, which contains no venue, ana does not disclose the county of which the official before whom it purports to have been sworn is an officer, is void on its face, and confers no jurisdiction on the court to render a decree of foreclosure against nonresident defendants. 2. Extrinsic Evidence. Such void affidavit can not-be cured or made valid by restoring to extrinsic evidence, when the validity of the dectee rendered thereon is assailed. 3. Statute of Limitations: Adverse Possession: Minors. The statute of limitations, as to adverse possession, does not run against persons while under disability, such as minors; and an action brought to recover an interest in real estate within ten years after they arrive at the age of majority, is commenced in time. 4. Former judgment in this case adhered to.

The claim made by the defendant that he is a bona fide purchaser of this land without notice of any defect in his title, is disproved by record defects appearing in the very chain of title under which he claims. There could be no bona■ fide purchaser of this land claiming through the sheriff’s deed made by order of a court without jurisdiction to try the case in which the order was made.

We recommend a reversal of the decree of the district court, and that the case be remanded with directions to enter a decree in favor of the appellants.

Ames and Albert, CC., concur.

By the Court: For the reasons stated in the foregoing opinion, the decree of the district court is reversed and the case remanded with directions to enter a decree in favor of the appellants.

Reversed and remanded.