
    Case 35 — PETITION EQUITY
    Nov. 23.
    Grigsby, &c. v. Barr, &c.
    APPEAL FROM MEADE CIRCUIT COURT.
    1. All PROCEEDINGS TO SUBJECT PROPERTY OF NON-RESIDENTS, not actually summoned, and who do not appear to the action, are in derogation of the common law, and nothing is to be presumed in favor of the jurisdiction.
    2. When the statute provides a method by which the property of a non-resident may be reached, it is not only to be strictly followed, but it must be followed to the exclusion of any other method not also clearly provided.
    
      The Civil Code having provided a method for subjecting the property of a ncmr'resident to the payment of his debts due upon contract, all laws previously enacted, and providing any other manner of proceeding, are repealed by section 875 thereof.
    3. The property of a non-resident can not be subjected when there is no service, no appearance, no attachment, and no lien asserted.
    4. A VOID JUDGMENT TO SELL LAND OF NON-RESIDENT WAS RENDERED, IN THIS case, wherein the plaintiff, in his .petition, set up his debt against the non-resident, described the land, and prayed for the sale thereof, etc. There being no service, no appearance, and no attachment, the judgment ordering the sale was void.
    5. A VOID JUDICIAL OR EXECUTION SALE CONFERS NO RIGHT to the thing sold, and one holding under such a sale , can not deny the title of the party against whom such void proceedings were had.
    6. Failure to allege a right to possession is cured by answer And judgment, when the title, set up by the defendant, is the same as that asserted by the plaintiff. In this case the defendant claimed under a sale made under a void judgment against the plaintiff
    7. The purchaser at a sale made under a void judgment does not acquire a lien on the thing sold, by virtue of his purchase, for the amount of the debt paid by the sale.
    
      JOHN O. WALKER for appellants.
    1. When the petition describes the land of a non-resident, sets up a debt against him, and prays a sale of the land to satisfy his debt, it is a proceeding in rem, and the court has jurisdiction to adjudge the sale of the land without summons, appearance, or attachment. (Rorer on Judicial Sales, secs. 77, 466; 4 Wend. 463 ; 4 Ind. 468; 9 Texas, 504; 4 Iowa, 77; 1 Peters, 340 ; 41 Ala. 26; Benningfield v..Beed, 8 B. Mon. 105; Grignon v. Astor, 2 How. 319.)
    2. The Code does not make an attachment necessary or provide that an attachment is the only mode by which a non-resident’s property may be subjected. The old statutes under which such proceedings were had were not repealed by the Code.
    3. Title acquired by decretal sale is not affected by a reversal of the judgment of sale for irregularity or error in the proceedings (Borer on Judicial Sales, sec. 138, note 4; Gray v. Brignardello, 1 Wall. 634), and consequently the purchaser at a decretal sale gets a good title although there may be irregularities or errors in the proceedings.
    4. An attachment is merely ancillary, and is not necessary to confer jurisdiction on the court when the petition identifies the property sought to be subjected by the judgment therein prayed for.
   JUDGE HINES

delivered the opinion oe the court.

On the 25th of January, 1861, Wm. R. Grigsby instituted suit against appellees in the Meade Circuit Court to recover the sum of $100 for services, as an attorney, alleged to have been performed for appellees. The petition alleged that appellees were non-residents of Kentucky, the .owners of a certain tract of land in Meade County, and asked for an attachment to be levied on the land and for a sale of a sufficient amount thereof to pay his debt. A warning-order was made, but no attachment was ever issued or served on the land. The court on April 24, 1861, decreed the sale, and Wm. A. Hill became the purchaser of the tract of land of about six hundred acres for $138.78, the amount of the debt, interest, and costs. In 1863 a deed was made by order of court to Wm. A. Hill. Hill subsequently sold five hundred acres of the land to Haynes, and Haynes sold to John C. Walker, and put him in possession.

On the 4th day of November, 1867, more than five years after the decree of sale in the case of Grigsby against appellees, they brought this suit in the Meade Circuit Court against Wm. A. Hill, Wm. R. Grigsby, and John C. Walker to recover the land. Appellees, having compromised with Hill, obtained judgment against Walker for tbe five hundred acres of land held by him, and for their costs, but the court adjudged that Walker be substituted to the claim of Grigsby against the appellees, and that so much of this land as might be necessary should be sold to pay that amount. From the judgment against Walker he and Grigsby appeal, and from so much of the judgment as is rendered against appellees in favor of Walker they pray a cross-appeal.

The principal question presented is, is the judgment rendered in favor of Grisby against appellees and under which Hill purchased void or only voidable ? The position assumed by appellees is that the judgment is void for want of jurisdiction in the court rendering it. If the court had jurisdiction of the persons and of the subject-matter, the judgment can not be assailed collaterally, no matter how irregular the proceedings may have been, but if there was no such jurisdiction the judgment is a nullity and must be entirely disregarded. Section 449 of the Civil Code of 1854 reads:

“No lien on the property of a defendant constructively summoned shall be created otherwise than by an attachment . . . or by judgment.”

Section 450 provides:

“ No personal judgment shall be rendered against a defendant constructively summoned, or summoned out of this state, . • . . and who has not appeared in the action.”

Section 221 authorizes an attachment, in an action to recover money, against the property of a non-resident.

It appears from these sections that there can be no personal judgment against one constructively summoned and who has not appeared in the action, and that there can be no lien on the property of one thus summoned except it be created by attachment or by judgment. An attachment is expressly authorized for the security of the claim sued for, and a personal judgment expressly inhibited.

But for the words or by judgment,” contained in the 449th section of the Code, no question could have arisen as to the power to render a judgment binding the property of a non-resident constructively summoned, and who does not appear in the action, otherwise than by the method prescribed in section 221, or by proceedings to enforce a lien for purchase-money or a lien secured by mortgage. It is insisted that these words enlarge the field of operation and permit the property of a non-resident to be subjected by reference in the petition to its existence within the jurisdiction and by a prayer for sale for that purpose. To this construction we are, for many reasons, not inclined to yield. The proceeding by attachment is a method expressly provided in the Code while the manner of proceeding insisted upon here has no warrant except by doubtful construction from the' use of the words mentioned.

All proceedings to subject the property of non-residents not actually served, and who do not appear to the action, are in derogation of the common law, and nothing is to be presumed in favor of the jurisdiction. When the statute provides a method by which the property may be reached it is not only to be strictly followed, but it must be followed to the exclusion of any other method not also clearly provided. Before an attachment can be issued the plaintiff is required to give, as an indemnity to the defendant, bond in double the amount of the debt, and when this is done no mere irregularity in the proceedings, which would authorize a reversal of judgment of sale, can affect the title of the purchaser.

If the proceeding might be had, as in this instance, without bond or attachment, the defendant might appear and open the judgment, and conclusively show that he was not indebted to the plaintiff in any sum whatever; that the pretended claim was without foundation in fact, and although the plaintiff may be insolvent, yet the title of the purchaser under the decree would be good, and the plaintiff without remedy. We can not believe that the legislature intended to offer such facilities for fraud and to sanction such injustice. In support of this view we have the sanction of this court in Peters, guardian v. Conway, 4 Bush, hereafter cited, and of the legislature that adopted the Code of 1877, containing the same provisions, on this point, as the Code of 1854, thereby approving the construction given in the Peters-Conway case.

Mr. Justice Miller, in Cooper v. Reynolds, 10 Wallace, 319, speaking of similar provisions in the Code of Tennessee, says:

“Now, in this class of eases, on what does the jurisdiction of the court depend? It seems to us that the seizure of the property, or that which, in this case, is the same in effect, the levy of the writ of attachment on it, is the one essential requisite to jurisdiction, as it unquestionably is in proceedings purely in rem. Without this the court can proceed no further; with it the court can proceed to subject that property to the demand of the plaintiff. If the writ of attachment is the lawful writ of the court, issued in proper form under the seal of the court, and if it is by the proper officer levied upon property liable to the attachment, when such writ is returned into court, the power of the court over the res is established.”

This court, in Peters, guardian, &c. v. Conway, 4 Bush, 565, in construing these sections of the Code, held that the right to subject the property of a non-resident depended upon whether there had been an attachment properly issued, levied, and returned.

In Brownfield v. Dyer, 7 Bush, 507, we have held that “ In all proceedings upon constructive service the provisions of the Code, regulating the same, must be literally followed. Nothing short of a substantial compliance with every prerequisite will give the court jurisdiction of the property sought to be subjected to the payment of the plaintiff’s claim.”

We think it clear that neither the Code nor the analogies of the law will permit the property of a non-resident, constructively summoned, to be taken- for the satisfaction of a claim, when there is no actual seizure of the property and no lien asserted. In this instance there is nothing more than a general description of the land in the petition, and for more specific description reference is made to a deed said to be filed in the case.

Neither the person nor the property of one not within the limits of the sovereignty can be affected or in any way bound except in strict conformity to the law of such sovereignty made in reference to and for the purpose of conferring such jurisdiction.

Appellants insist that appellees have not shown title in themselves, and ought not, for that reason, to recover the land. This position is certainly not tenable in the light of the facts as presented in the record. Walker has no color of title to any part of the land. He claims through Hill, who claimed title from appellees through his purchase at decretal sale, in the suit of Grigsby against appellees. Besides, there is sufficient evidence in the record to justify the court in finding that, as against appellants, the title of appellees is good. It might not be inappropriate to say that appellant Walker is scarcely in an attitude, for another reason, to assert title in himself. He appears to have been the attorney for Grigsby in his suit against appellees, and to have sworn to the petition, which alleges that the title to the land was in appellees.' This may not operate as an estoppel, but it is certainly a strong circumstance, going to show that appellees were the owners of the land in controversy.

If, as we conclude, the judgment for the sale of the land was a nullity for want of jurisdiction, neither Grigsby nor Walker take any thing under it, and therefore the judgment of the court, directing appellees to pay to Walker the money which is claimed to be due from appellees to Grigsby, and giving a lien upon the land to enforce its payment, is clearly erroneous. Grigsby’s claim, whatever.it may be, occupies the position of never having been litigated or brought to judgment. The first proceedings for his judgment being void, there was nothing in the pleadings in the case, now being considered, to authorize a judgment for any sum of money in favor of Grigsby or Walker against the appellees.

We perceive no reversible error in the judgment for costs against appellant Walker. He was a joint defendant with Hill, occupied and claimed the land in controversy, and in the main appears to have been the principal cause of the accumulation of costs, as Hill abandoned his claim and paid appellees for the land held by him.

Wherefore the judgment is affirmed on the appeal of Walker and Grigsby, and reversed on the cross-appeal of appellees, and cause remanded with directions for further proceedings in conformity with this opinion.

Judge Copee not sitting in this case.

To THE PETITION OE APPELLANTS’ COUNSEL EOR A REHEARING

JUDGE HINES

DELIVERED THE HOLLOWING RESPONSE OH THE COURT:

It is insisted that the court should grant a rehearing in this case:

First, because the petition does not specifically allege that appellees are entitled to the possession of the land sought to be recovered.

The allegation is that appellees “ are the owners of the land,” followed by the prayer that the defendant may be adjudged to surrender up the land to them.” The answer denies title in appellees, and claims title in appellant Walker, acquired by purchase from Haynes, who was Hill’s vendee. There is no claim by Walker to any right to possession, except such as follows as incidental to the fee. It is not assigned as error that the court below adjudged a delivery of possession in addition to holding that the title is in appellees, nor was the question made by counsel on the original hearing. It is now too late to make it in this court. On the issue presented by the pleadings, and from the proof, it appears that the decree for possession followed as an incident to the title, which was adjudged to be in appellees. There may be a right to possession where there is no title, but a failure to allege in the petition a right to possession is cured by the answer and judgment, when there is no other claim than title set up by defendant. (Wilson v. Hunt’s adm’r, 6 B. Mon. 380; 1 Chitty on Pleadings, 673; Louisville & Portland Canal Company v. Murphy, 9 Bush, 530.)

Secondly, it is claimed that appellees do not show title in themselves, and therefore have no right to recover.

The answer of Walker does not pretend to assert any title except such as was acquired by his purchase from Haynes, who purchased from Hill. Hill’s deposition shows conclusively that he had no, title except such as he may have acquired under the decretal sale in the case of Grigsby v. Barr et al. He says that before he entered upon and took possession of the land it was agreed between Haynes and himself that in case Haynes became agent for the land he would sell it to him, and that he took possession under this agreement, but that subsequently he purchased it under the decree in the case of Grigsby v. Barr et al. He does not claim to have entered, asserting title in himself, but expressly recognizing title in appellees; nor does he pretend to have acquired any other title than such as was obtained by the decretal sn\e. Such are the facts as they appear from the deposition, and there is nothing in the evidence substantially in conflict therewith. It will be observed that Walker, in person, cross-examined this witness and did- not question him as to the source of his title, notwithstanding the allegations of the petition setting up the fact that Hill had no other title to the land than such, if any, as was acquired by the purchase mentioned. The petition appears to proceed upon the idea that this court had held that the conduct of Walker, in connection with the case of Grigsby v. Barr et al., operated to estop him from denying the title of appellees. Reference to the opinion will show that it was not intended that such an inference should be drawn, but the fact was mentioned as a circumstance tending to show title in appellees. But whether that fact be considered by the court or not, is immaterial. The evidence of title is complete to sustain the judgment of the court below, and in fact is conclusive, at least so far as Walker is concerned. He does not occupy the attitude of one having possession and claiming under color of title derived through a person not in privity of title with the party seeking to recover. In such a case the plaintiff must recover on. his own title. But when one has been in possession, claiming title and exercising acts of ownership, he may recover on proof of those facts and of a wrongful entry by the defendant who exhibits no title. Walker occupies an attitude no more favorable than would Hill, through whom he claims. (Sowder v. McMillan, 4 Dana, 463.) Whatever evidence of title would authorize a recovery against Hill will be sufficient for recovery against one claiming through him. A void judicial or execution sale confers no right to the thing sold, and one holding under such sale is a trespasser. (Addison v. Crow, 5 Dana, 281.)

The record exhibits a conveyance from the commissioner of the Meade Circuit Court to appellees, the deed from the commissioner to Hill, and from Hill to Haynes, and bond for title from Haynes to Walker.

Even where there is no evidence of title whatever, a presumption of title will be entertained in favor of the first possessor. (Fowke v. Darnall, 5 Litt. 317; Bodley v. McChord, 4 J. J. Mar. 477; Major v. Deer, 4 J. J. Mar. 589.)

Thirdly, it is contended that the court has full jurisdiction, without levy of attachment, to subject the land by equitable proceedings under tbe act of 1827 (Stat. Laws, vol. 1, p. 98, and the amendments thereto,) which, it is contended, was expressly continued in force by section 4 of the Civil Code of 1854. That section reads:

“ The plaintiff may prosecute his action by equitable proceedings in all cases where courts of chancery, before the adoption of this Code, had jurisdiction; and must so proceed in all cases where such jurisdiction was exclusive.”

We are of the opinion that this provision was intended only to preserve the distinction between proceedings at law and in equity, and not to grant jurisdiction. Where the right to relief is given by the law, this section designates- the tribunal in which that relief shall be sought, and determines whether the proceedings shall be in equity or may be at law.

Section 875 of the same Code provides, “All statutes and laws heretofore in force in this state, in any case provided for by this Code, or inconsistent with its provisions, are hereby repealed and abrogated,” etc.

As we have stated in the opinion, the Code having provided a method for subjecting the property of a non-resident to the payment of his debts due upon contract, all laws previously enacted, and providing any other manner of. proceeding, are repealed by the section of the Code last quoted.

Chapter 1, title 10 of the Code does not by implication recognize the act of 1827 as being in force. The provisions of that chapter may well apply in a proceeding to foreclose a mortgage or to enforce a lien, they being in the nature of proceedings in rem.

In every instance where the Code provides a method of procedure it is to be taken as exclusive of all others. It was the intention to present a complete system of practice, and whatever its defects, they can be remedied only by- the legislative department. (Broaddus v. Broaddus, 10 Bush; 308.)

Petition overruled.

Judge Cofee not sitting in this case.  