Roller v. Holly, 176 U.S. 398 (1900)

’ ough the defendant Jackson was interested with him p. 400in the purchase, and on May 4, 1891, the two sold the land to their codefendant Peoples.

Third. That the proceedings in the McClintic & I*1,00 or p. 401suit prior to the judgment and the allegations in the petition were ineffectual to confer jurisdiction on the District Court of Limestone County over either the person of plaintiff or the land.

n Arndt v. Griggs, 134 U. S. 316, it was held directly that a Prov^e statute that the title to real estate ln its limits shall be settled and determined by a suit in P ic a non-resident defendant is brought into court by pub^cation. It appeared in that case that a suit had.been begun of tb^^^ alleging that he was the owner and in possession a e and in controversy, by virtue of certain tax deeds, gainst defendants claiming to have some title or interest in p. 404the lands by patent from the United States, which title, as was alleged, was divested by the tax deeds, and was unjust, inequitable and a cloud upon plaintiff’s title, and that the suit was brought for the purpose of quieting such title. The defendants were brought in by publication, and a decree entered in favor of plaintiff quieting his title. The question was whether that decree was a bar to an action in ejectment between the grantees of the respective parties to the proceedings to quiet title. In other words, as put by the court: “ Has a State the power to provide by statute that the title to real estate within its limits shall be settled and determined by a suit in which the defendant, being a non-resident, is brought into court only by publication ? ” The question was answered in the affirmative. In delivering the opinion of the court Mr. Justice Brewer observed : “ The question is not what a court of equity, by virtue of its general powers and in the absence of a statute, might do, but it is, what jurisdiction has a State over titles to real estate within its limits, and what jurisdiction may it give by statute to its own courts, to determine the validity and extent of the claims of non-residents to such real estate? If a State has no power to bring a non-resident into its courts for any purpose by publication, it is impotent to perfect the titles of real estate within its limits held by its own citizens; and a cloud cast upon such title by a claim of a non-resident will remain for all time a cloud, unless such non-resident shall voluntarily come into its courts for the purpose of having it adjudicated. But no such imperfections attend the sovereignty of the State. It has control over property within its limits; and the condition of ownership of real estate therein, whether the owner be stranger or citizen, is subjection to its rules concerning the holding, the transfer, liability to obligations, private or public, and the modes of establishing titles thereto. It cannot bring the per son of a non-resident within its limits — its process goes not out beyond its borders — but it may determine the extent o his title to real estate within its limits; and for the purpose of such determination may provide any reasonable met o of imparting notice. . . . Mortgage liens, mechanics hens, p. 405material-men’s liens and other liens are foreclosed against non-resident defendants upon service by publication only. Lands of non-resident defendants are attached and sold to pay their debts ; and indeed, almost any kind of action may be instifcted and maintained against non-residents to the extent of any interest in property they may have in Kansas, and the jurisdiction to hear and determine in this kind of cases may be obtained wholly and entirely by publication.”

From these requirements it appears that the time for service of process in the courts of Texas was five days, exclusive of the day of service and return, and that there is no distinction in this particular between defendants living in the town where the court is sitting and defendants living in other States, or even in a foreign country. In short, for aught that appears here, parties may be called from the uttermost parts of the earth to come to Texas and defend suits against them within five days from the day the notice is served upon them. In the case under consideration it is admitted that the defendant was served with notice on December 30, 1890, at Harrisonburg, Rockingham County, Virginia, to appear on January 5, 1891, at Groesbeck, Limestone County, Texas; that it would have required four days of constant travelling to reach Groesbec , giving the plaintiff but one day, and that a Sunday, to make preparations to comply with the exigencies of the notice. This estimate, too, makes no allowance for accidental delays in transit. It is true that, by articles 1280 and 1281, the case could not have been called for trial or default until the fifth ay p. 409of the term, January 9, and that Roller’s default was not actually taken and judgment entered until that day. But, as a citizen of Virginia, he was not bound to know the practice of the Texas courts in that particular, and wras at liberty, even if he were not compelled, to construe the notice as it read upon its face. Very probably, too, the court which rendered the judgment would have set the same aside, and permitted him to come in and defend ; but that would be a matter of discretion — a contingency he was not bound to contemplate. The right of a citizen to due process of law must rest upon a basis more substantial than favor or discretion.

In 2 Chitty’s General Practice, 175, it is said in reference to summary proceedings before justices of the peace: “ The time appointed must always allow sufficient opportunity between the service of the summons and the time of appearance, to enable e party to prepare his defence and for his journey ; and the jus ice should in this respect take care to avoid any supposition of ^urry, or he may incur the censure of the Court mg s Bench, if not be subject to a criminal information. p. 410The precise time will generally depend on distance, and the other circumstances of each particular case. With analogy to other branches of the law, a man should not be required, omissis omnibus aliis negotiis, instantly to answer a charge of a supposed offence necessarily less than an indictable misdemeanor, on the same or even the next day, and should be allowed not only ample time to obtain legal advice and assistance, but also to collect his evidence; and even the convenience of witnesses should be considered; and therefore, in general, several days should intervene between the time of summons and hearing. In the superior courts, in general, at least eight days’ notice of inquiry and of trial are essential for the preparation of the defence.” In vol. 2, page 144, it is said that the ancient practice was that a person residing at a considerable distance from a metropolis should be allowed more time for performing the act than a person within, or near, the metropolis, but that there is now no distinction between an arrest on process in London or Yorkshire, and in each case the defendant must appear or put in bail within eight days after the date of service or arrest. This, considering the small area of the kingdom, and the rapid means of transportation, seems just and reasonable.

It may be said in general, with reference to these statu es, that in cases of publication notice is required to be given a p. 413least once a week for from four to eight weeks, and in case of personal service out of the State, no notice for less than twenty days between the service and return day is contemplated in any of the States except Mississippi, where a personal notice of ten days seems to be sufficient. While, of course, these statutes are not obligatory here, they are entitled to consideration as expressive of the general sentiment of legislative bodies upon the question of reasonableness of notice.

The title of defendant, as disclosed by the bill and exhibits, is as follows: On September 19, 1890, he went upon the premises in controversy, then unoccupied, built a cabin, and continued to live therein (having on November 18, 1890, made formal homestead entry in the local land office) during all the proceedings in the land department, hereinafter stated, an until he had completed five years of occupancy, and then upon proof of such continued occupancy was awarded an received a patent on account of his homestead entry and occu pation. The claim of the plaintiff on the other hand rests upon an entry in the land office prior to that of defendant, followed by a settlement on the land later than his. w>® 1885 to 1890 this tract, though never settled upon or occupm by any one, was the subject of repeated entries at the oca land office, such entries being made under the homestea ajb the later ones being as follows : On May 7, 1890, Robert . Doran made a homestead entry. Subsequently, the plain i paid to Doran the sum of one thousand dollars for a relinquis p. 415ment of his homestead entry, and on the 24th day of October, 1890, she filed in the local land office that relinquishment, and at the same time made a homestead entry in her own name. On April 22, 1891, two days less than six months after her entry, she appeared on the land, with assistants, material, furniture, etc., and commenced the construction of a home, completed and occupied the same. A contest between the plaintiff and defendant in reference to the right to acquire title to this property was initiated in the local land office, and carried by appeal to the Commissioner of the General Land Office, and finally to the Secretary of the Interior, resulting in a decision by the latter on December 19, 1894, in favor of the defendant; and in pursuance thereof the patent was issued to him.

Defendant by taking actual possession on September 19, 890, his entry in the land office on November 18, 1890, his continued occupation and proof thereof, was entitled to the patent which was thereafter issued to him, unless other facts ound by the department show that as matter of law a superior right was vested in the plaintiff. Such facts it is con-en ed are the successive formal entries in the land office unaccompanied by any actual possession of the land. It may e well to state some of these in detail: On May 11, 1888, folowing similar prior action, Lyman E. Thayer, of Wausau, isconsin, made a homestead entry. On November 10, 1888, ay less than six months thereafter, Thayer relinquished, p. 416and Julia McCarty made a like entry. On May 9, 1889, one day less than six months thereafter, McCarty relinquished, and Napoleon B. Thayer made a like entry. On November 9, 1889, exactly six months thereafter, Thayer relinquished, and John A. Murphy made a similar entry. On May 7,1890, two days less than six months thereafter, Murphy relinquished, and Robert H. Doran made a like entry. On October 24, 1890, Carrie Moss paid Doran one thousand dollars for a relinquishment of his entry, and on the same day, having obtained that relinquishment, she filed it in the land office and made her entry. Thereafter, and on April 22,1891, two days before the expiration of six months, she went upon the land, and made improvements in the way of building and otherwise. As the Secretary says in his opinion: “Although numerous persons have made homestead entry of this land, none appear to have done so in good faith, for none appear to have made any settlement during the period of five years in which it was entered and relinquished every six months.” In other words, the findings of fact made by the land department show that the first person who made actual settlement upon the premises was the defendant, that his settlement and occupation continued for the term prescribed by the statute, and therefore that such settlement and occupation thus continued ent* tied him to a patent unless defeated by these proceedings in the nature of entries without settlement. In respect to them it was found that for five years this tract had been subjected to repeated entries, each entry made within six months of the prior entry and accompanied by a relinquishment of such prior entry, and thus for five years the land, without any settlement, without any occupation, was a football for homestead speculators, and withdrawn from actual settlement.

But that section simply authorizes the Government to annul an entry if thereafter it appears that the homesteader has actually changed his residence or abandoned the land for more than six months. But the very phraseology, “ changing residence,” abandoning land,” implies a settlement on the land which is changed and abandoned, and does not authorize a waiting for settlement and occupation. Ou the other hand, section 2291, ev< providing for final proof, requires an affidavit that e applicant has “ resided upon or cultivated the same for the erm ^ve years immediately succeeding the time of filing p. 420the affidavit.” In other words, the one section contemplates an immediate settlement and occupation, and the other provides for temporary abandonment.

At the moment of filing that relinquishment, Dowman, t e defendant, was a settler in occupation of the tract, and Moss, t e plaintiff, made her application to enter, and the question is as to the relative rights, at the moment the land becomes open to entry, of one a settler in actual occupation and one making a formal entry in the land office. For reasons heretofore state , we have no doubt that the settler is entitled to preference, is true he must perfect his right of settlement by making an p. 421entry in the land office, and section 3 of the act of May 14,1880, 21 Stat. 140, heretofore referred to, provides: