
    Empire Real Estate and Mortgage Company, Appellant, v. N. K. Beechley, Appellee.
    1 Service by publication: proof of same: judgment thereon. A party who brings suit against a nonresident on published notice is disqualified to administer the oath to the publisher in making proof of publication; and judgment entered' upon proof of service so made is without jurisdiction and a sheriff’s deed on a sale of property thereunder conveys no title.
    2 Quieting title: limitations. The plea of limitations is not applicable in an action to quiet title, brought by the grantee of an execution defendant against the grantee in a sheriff’s deed, even though the claim belongs'to the class of claims which are barred in five years, especially where the action is brought within five years of the date of the sheriff’s deed: nor is it effective where the plea is an attempt to assert title by prescription.
    3 Quieting title: sufficiency of proof. An action to quiet title cannot be defeated by a showing that plaintiff’s grantor possessed less than the whole title, as that question goes to the measure of relief and not to the right of action: and in the absence of evidence to the contrary it will be presumed that each of several owners of real estate have an equal interest in the premises.
    4 Same: granting relief. The plaintiff in an action to quiet title against a sheriff’s deed, which is void because there is no valid proof of publication of the notice by which the action was commenced, is entitled to have whatever rights he has in the premises settled, even though defendant may still amend such proof of service and have a valid judgment entered.
    
      
      Appeal from Linn District Court.— Hon. Wm. Gr. Thompson, Judge.
    Tuesday, January 14, 1908.
    Action in equity to quiet title to certain lots in the city of Cedar Rapids. Decree dismissing petition, and plaintiff appeals.
    
      Reversed.
    
    Richel, Crocher & Touriellot, for appellant.
    
      Lewis Heins, for appellee.
   Weaver, J.

The material facts in the case are as follows: In November, 1899, the defendant Beechley brought an action in the district court' of Linn county, Iowa, against H. W. Kirby and B. D. Hicks to recover the amount of an alleged indebtedness of $36, and in aid of such action sued out a writ of attachment, which was levied upon the property now in controversy. The only service of the original notice in said proceeding was by publication, on a showing that said Kirby and Hicks were non-residents of the State, and the only proof of such service was by the affidavit of one Sherman that he was the publisher of a weekly newspaper printed and issued at Cedar Rapids, Iowa, in which said notice had been duly published for four successive weekly issues beginning December 2, 1899. This affidavit was sworn to before Beechley, the plaintiff in said proceedings, acting as a notary public. On the proof of service thus made and verified a judgment in rem was entered confirming the attachment and ordering a special execution for the sale of the lots. Execution was thereafter issued, and said property was struck off and sold thereunder to said Beechley, and, no redemption being made within a year, the sheriff executed and delivered to him a deed under which he now asserts title. The plaintiff in this proceeding claims title to the lots through a conveyance from Hicks, and contends that the attachment proceedings above mentioned were void for want of jurisdiction and that Beechley obtained no title by virtue of the sheriff’s deed. This contention is bottomed ujpon the proposition that, the affidavit of publication of the original notice having been verified before Beechley himself, it did not furnish sufficient, proof of service to authorize the court to enter judgment or to order a sale of the property. The defendant avers that the proof of service was regular and sufficient, and that plaintiff’s cause of action is barred by the statute of limitations.

I. The statute which permits the property of a nonresident to be seized and subjected, to judicial sale upon notice by publication only is a most drastic remedy, and not infrequently results in oppression and injustice. Becognizing this fact, the courts . .r quite uniformly hold that all of the statutory requirements for the institution'and prosecution of such proceedings, and especially such as are of a jurisdictional character, must be strictly and literally observed, in order that the judgment entered thereon shall be of legal force and validity. Priestman v. Priestmm, 103 Iowa, 320; Fanning v. Krapfl, 61 Iowa, 417; Abell v. Orvis, 17 Iowa, 174; Tunis v. Wethero, 10 Iowa, 305. If, then, there was no sufficient return or proof showing due publication of the original notice in the attachment case, the proceedings based thereon must of necessity be held void. This proof, the statute provides, shall be made by the affidavit of the publisher or his foreman and filed before default is taken. Code, section 3536.

We have, then, to inquire whether in such proceedings the plaintiff, who happens to be a notary public or magistrate, may administer the necessary oath. In Wilson v. Traer, 20 Iowa, 231, this court held that the acknowledgment of a deed taken by a notary who was interested in the transaction is void, and its record will not impart constructive notice to a subsequent purchaser. The same rule has since been applied in Bank v. Radtke, 87 Iowa, 365, and Smith v. Clark, 100 Iowa, 609. So far as we have noted tbe precedents all agree to tbe correctness of this rule. If we are to bold void an acknowledgment taken and certified by a notary wbo is interested in tbe transaction, we are unable to conceive upon wbat principle we may sustain tbe act of another notary wbo takes and certifies an affidavit wbicb is essential to tbe maintenance of an action in wbicb be is himself plaintiff. There appears to be no express statutory prohibition in either case. In tbe Wilson case, supra, tbe court said that to permit a party to take acknowledgment of a conveyance in wbicb be is interested u would leave a broad door open to tbe perpetration of frauds.” If this be true in reference to tbe acknowledgment of written instruments, tbe opportunity for fraud would be even greater if tbe party wbo brings a suit against a non-resident on [published notice may administer tbe oaths and take tbe affidavits on which tbe validity of tbe judgment be obtains must necessarily depend. In New York and some other States, as well as in England, it has frequently been held that one wbo is interested in a proceeding, either directly or as an attorney, is disqualified to take an affidavit or administer an oath to be used therein. See cases collected in 21 A. & Eng. Encyc. Law (3d Ed.) 570'. It is to be admitted that authorities to tbe contrary may be found; but tbe rule stated is a safe one, and we are disposed to bold it applicable to tbe case at bar. It is in harmony with tbe principles affirmed by us in tbe decisions already cited, and it imposes no hardship upon any party seeking tbe aid of tbe courts for tbe enforcement of an alleged right. If, as we bold, tbe defendant was disqualified to take tbe affidavit, then tbe court acquired no jurisdiction to enter judgment or order sale of tbe property, and tbe sheriff’s deed made pursuant to such sale conveyed no title to tbe defendant.

II. There is no merit in tbe plea of tbe statute of limitations. Tbe action is not primarily a proceeding to set aside the judgment in the attachment proceedings, but to settle and quiet the plaintiff’s claim of title to real estate. Plaintiff has no interest in the controversy, if any, between defendant and Hicks and Kirby, save as it affects such title. If it be true, as appellee argues, that plaintiff’s claim belongs to the class in which action is barred within five years, such defense is not here available, for it did not obtain the sheriff’s deed on which it relies until within less than five years prior to the commencement of this suit. Moreover if the plea of the statute means anything, it is apparently an attempt to set up title by prescription, which cannot accrue in less than ten years. Code, section 3447; Williams v. Allison, 33 Iowa, 278.

III. Neither can we concede the defendant’s proposition that plaintiff has not shown any right or title to the lots, and must therefore fail, even though the defendant’s title be defective. It is, of course, an established rule that the plaintiff in such an action must recover, if at all, on the strength of his own position, and not on the weakness of the position of his adversary. Appellee claims the benefit of that rule, because, while the attachment was directed against the property of both Kirby and Hicks, the deed to appellant is from Hicks alone. The point is not well taken. If, as counsel argues, we must assume that the property was the joint or common property of both defendants in the attachment suit, then whatever interest Hicks had in the premises, whether small or great, passed by his deed to the appellant, and the latter may maintain an action to establish that right against the appellee’s hostile claim. There was no suggestion in the court below of any defect of parties to the suit, and we need not consider it further than to say that, if Kirby neither had nor claimed in fact any interest in the property, it was not necessary to bring him into the case, and, if the interest of Hicks was anything less' than a full and undivided ownership, that fact went to the measure of the relief to which plaintiff, as his grantee, was entitled, and not to its right to maintain an action.

It is to' be admitted that the showing of title in the plaintiff is meager, yet as it claims under conveyance from Hicks, and the defendant claims through an attachment directed against the property of Hicks, both parties are claiming title from or. through the same person, and it was unnecessary for either party to trace its chain of title further than to this common source. If we are to assume, as defendant insists, that Kirby had any interest in the property — a contention upon which we do not attempt to pass — the presumption would be, in the absence of evidence to the contrary, that he and Hicks were tenants in common with equal rights in the premises, and plaintiff would be entitled to that extent to the relief it demands.

IV. Finally, it is said by appellee that, even if the proof of service of the. original notice be found fatally defective, it does not invalidate the attachment, which had already been made, and that, although the special execution and the sheriff’s sale and deed be wholly void, the attachment will stand as it stood before filing the defective proof of service of notice, and plaintiff may still be allowed to amend such proof and have a new and valid judgment entered for the enforcement of the attachment lien. Even if this be true, it affords no ground for the denial of the plaintiff’s demand for the confirmation of his title against the hostile title asserted by defendant under the sheriff’s deed. If plaintiff is the owner of the property in whole or in part, it is entitled to have its ownership adjudicated and confirmed, even though,-when so confirmed, its title be found to be incumbered by the attachment lien. Whether that lien ever properly attached to the land, and, if so, whether it still exists, is not ascertainable from the record before us. Mention is made of an affidavit of non residence of Kirby and Hicks; but there is no showing when, if ever, it was filed. So, also, an amended proof of the publication of the original notice, bearing date of November 15, 1905, after the commencement of this action, was offered in evidence; but it is not shown whether it was ever filed in the attachment proceeding. Under such conditions any expression of opinion as to what the right of the parties would be upon the full showing of the facts would be mere dictum.

From what we have said it follows that the decree appealed from must be reversed, and the cause remanded to the district court for further proceedings in harmony with this opinion.— Reversed.  