Action by Joseph B. Foraker against George F. Dick to remove a cloud from his title. Judgment for complainant, and defendant appeals.
The appellee, a citizen of the state of Ohio, brought his complaint in the circuit court of the United States for the Eastern district of Arkansas against the appellant, a citizen of the state of Illinois. The bill sought to remove a cloud from a title held by complainant, and charged, in substance, that under an act of the legislature of Arkansas approved Marck 12, 1881, and an act amendatory thereof, approved March 22, 1881, a decree was rendered in the Ashley county circuit court directing the sale of certain lands, for the purpose of realizing taxes due upon them; that under this decree a sale was made on September 15, 1884, by a commissioner of the court; that at said sale the complainant became a purchaser of the property, a description of which was given in the bill; that the proceedings, as well as the sale, were in accordance with the statute; that the lands thus purchased were not redeemed as prescribed by law, and accordingly the court ordered the commissioner to execute a deed therefor, which the commissioner did on May 15, 1887, and the deed was recorded in the proper office; that, after this purchase, the defendant ( appellant here) purchased through the commis- [155 U.S. 404, 405] sioner of lands of the state of Arkansas the said lands from the state, as forfeited for the nonpayment of taxes; that the commissioner wrongfully, and without authority of law, and in disregard of the rights of complainant, executed deeds for the lands to the defendant, which deeds were recorded, and, taken all together, purport to convey all of the land purchased by the complainant under the previous sale to him; that the deeds thus executed to the defendant, while they convey no title, constitute a cloud upon the complainant's title, and their appearance upon the record impairs the value of his property. The bill, moreover, averred that the land was vacant, and in the actual possession of neither complainant nor defendant. The prayer of the bill was that the deeds made to the defendant be canceled, and that the complainant's title to said land be quieted as against the defendant and all claimants under him. The defendant demurred to the jurisdiction of the court, and, upon the overruling of his demurrer, answered, averring the validity of the sale made him by the commissioner of lands, and claiming that the sales to the complainant under the proceedings in the Ashley county court were absolutely void, because there was no law authorizing them, because the court had no jurisdiction of the subject-matter, and because of fatal irregularities in the proceedings themselves. The court below decreed in favor of the complainant. From this decree the cause was brought here on appeal.
The defendant's title is derived from a sale made by the commissioner of lands of the state of Arkansas, treating the lands as forfeited to the state, this sale having been made subsequent to the proceedings upon which the complainant relied as his muniment of title.
The statutory provisions authorizing the proceedings upon which complainant's title rests are found in the Laws of Arkansas of 1881 (page 64), and read as follows:
In order to make out his case, the complainant offered the record of the proceedings in the Ashley county circuit court, from which his title took its origin. The record as offered is in a very imperfect state, but it appears therefrom that on May 4, 1884, on the relation of W. H. Arnold, a bill was filed, which, after setting out the above provisions of Arkansas law, substantially averred that, upon certain lands described in an exhibit annexed, certain taxes had been extended which were past due, and other taxes had been extended which were unauthorized by law; that, in pursuance of a warrant for the collection of taxes on these lands, the collector had demanded both the lawful and the unlawful taxes, and neither were paid, and the lands were returned as delinquent, and were forfeited and sold to the state for the taxes for which they had been respectively so returned; that the forfeiture and sale to the state were void, because unlawful taxes had been extended against the land, and also on account of many other irregularities; that hence the state of Arkansas had no valid title to any of the tracts, but, notwithstanding this fact, the state land commissioner had conveyed part of the land standing in the name of the state to such persons as had applied to purchase, and would convey the balance thereof unless the forfeiture was annulled.
This complaint as printed in the record is not complete. It contains no prayer, but the following memorandum is at the foot thereof: [155 U.S. 404, 408] 'Here, the lower part of the complaint having become worn out and destroyed, it is impossible to furnish a copy of the same or the signature to the same. The complaint was regularly filed, but it is also worn too much to be copied. Clerk.'
Annexed to the bill is a list of lands, containing, among others, those which are claimed by the complainant. There is also the following entry in the record:
It is to be inferred, of course, that the masters here named were regularly appointed. On June 2, 1894, the following was entered of record:
The execution of this order was postponed by direction of the court; but on September were adjudicated to him; and on May 14, were adjudicated to him; and on May 14 1887, upon the expiration of the period allowed for the redemption, the commissioner made to complainant a deed, which was approved by the court.
W. L. Terry, for appellant.
D. W. Jones, for appellee.
Mr. Justice WHITE, after stating the case, delivered the opinion of the court.
The suit was one to remove a cloud from the title to real estate situated in the district where the suit was brought. [155 U.S. 404, 411] The defendant was a citizen of another state. The case was obviously within the jurisdiction of the court. Rev. St. 738; Act 1875, 8 (18 Stat. 470); Act 1888, 5 (25 Stat. 433); Mellen v. Iron Works, 131 U.S. 352 , 9 Sup. Ct. 781; Arndt v. Griggs, 134 U.S. 316 , 10 Sup. Ct. 557; Greeley v. Lowe, 155 U. S. --, 15 Sup. Ct. 24.
The contention is that the law giving jurisdiction, as against a person not a citizen of the district where suit is brought to remove a cloud from the title to real estate situated therein, applies only to cases where there are two or more defendants, at least one of whom must be found in the district where the suit is brought; that the jurisdiction exists to entertain a suit, like the one before us, where there are two or more defendants, but not where there is only one. It was admitted that this contention is unsound as applied to Rev. St. 738; but it is insisted that the point is well taken in consequence of a change resulting from the re-enactment of Rev. St. 738, to be found in section 8 of the act of 1875. The Revised Statutes gave the right to bring such a suit where 'any defendant' resided out of the district. The act of 1875 gives the right 'where one or more' may so reside. We see no force in this argument, which in effect eliminates the word 'one' from the statute and replaces it by the word 'two,' thus causing it to read 'two or more,' instead of 'one or more.' The suggestion that as the words 'one or more,' in section 737, Rev. St., contemplated a controversy in which two or more defendants would be involved, therefore the words 'one or more' mean the same in the act of 1875, is fallacious.
Section 737 provides for case where there are 'several defendants,' and 'one or more' may be outside of the district; the act of 1875, on the contrary, provides for a case where 'one or more of the defendants' may be outside of the district; the difference between the two being that which exists between 'one or more of several' and 'one or more.' The demurrer was therefore correctly overruled.
The act of the Arkansas legislature which we have cited provides that, on the filing of the complaint with the clerk, an [155 U.S. 404, 412] order shall be entered on the record notifying all persons sons having any right or interest in the lands sought to be sold to appear within 40 days, and show cause why a lien should not be declared on said land for unpaid taxes, and why said land should not be sold for nonpayment thereof. The act directs the clerk to cause a copy of this order to be inserted twice in a newspaper published in the county, and, if there be no such newspaper, to post a copy at the courthouse door. It further declares that such publication shall be taken to be notice to all the world of the contents of the complaint. These are the only provisions made in the act for notice to the landowner. The proceedings leading up to the tax sale, as they appear on the record before us, do not include the required notice nor any order therefor, nor is it shown that any such notice was put on record in the course of the tax sale proceedings. It is true that the order directing the sale recites: 'It appearing that the order herein made requiring the owners of the land in this suit to appear and show cause, if any they could, why a lien should not be declared on certain land, has been duly published in the manner required by statute,' etc. This indirect reference to the notice is the only record evidence that such a notice was made, put on record, or published.
In Gregory v. Bartlett, 55 Ark. 33, 17 S. W. 344, the supreme court of that state, having before it a case in which the notice required by law under the terms of the second section was not properly given, said:
Thus, the supreme court of Arkansas, in interpreting a statute of that state, has held that the making of the record entry of the notice required, and also the proof of its publication, are indispensable to the validity of proceedings under the statute; that such recorded notice is essential to give jurisdiction to the court; and that, where the notice is not of record, the proceedings are absolutely void. As we have seen, this record does not show either notice or publication. The appellee, then, seeks to have a cloud removed from his title when he holds no title whatever; for, of course, it follows that, if the court was without jurisdiction, the decree by it rendered was utterly void, and the sale, having been made under the decree, was equally vicious and wholly null. The rule in ejectment is that the plaintiff must recover on the strength of his own title, and not on the weakness of the title of his adversary. A like rule obtains in an equitable action to remove a cloud from a title, and title in the complainant is of the essence of the right to relief. In Frost v. Spitley, 121 U.S. 552 , 7 Sup. Ct. 1129, we said: 'Under the jurisdiction and practice in equity, independently of statute, the object of a bill to remove a cloud upon title, and to quiet the possession of real estate, is to protect the owner of the legal title from being disturbed in his possession, or harassed by suits in regard to that title; and the bill cannot be maintained without clear proof of both possession and legal title in the plaintiff. Alexander v. Pendleton, 8 Cranch, 462; Peirsol v. Elliott, 6 Pet. 95; Orton v. Smith, 18 How. 263; Crews v. Burcham, 1 Black, 352; Ward v. Chamberlain, 2 Black, 430. As observed by Mr. Justice Grier in Orton v. Smith: 'Those only who have a clear, legal, and equitable title to land, connected with possession, have any right to claim the interference of a court of equity to give them peace, or dissipate a cloud on the title.' 18 How. 265.'
The law of Arkansas authorizes a bill to remove a cloud on [155 U.S. 404, 415] a title whether or not the complainant be in possession. Acts Ark. 1891, p. 132. By reason of this statute, a bill in equity may be maintained in the circuit court of the United States by a person not in possession against another who is also out of possession. Holland v. Challen, 110 U.S. 15 , 25. 3 Sup. Ct. 495. But this does not make the complainant's rights any the less dependent upon title in him, nor does it put him in a position to have a cloud removed from a title which has no existence. In Frost v. Spitley, supra, it was said:
It is said that the state of Arkansas became a party to the proceedings in the Ashley county court, and is hence bound thereby, and from this is deduced the argument that, inasmuch as the defendant derived his title from the state subsequent to the complainant's purchase, the latter's title is validated. [155 U.S. 404, 416] Stafford v. Watson, 41 Ark. 17. But appearance of the state did not cure the radical defect in the proceedings under which complainant purchased. The notice was essential in order to affect the rights of the owner of the property as against whom the proceedings were initiated and the sale was made. The appearance of the state did not therefore give the court jurisdiction or render the sale valid. There are other contentions urged, but they are all covered by what has been already said. They either arise from the erroneous postulate that the complainant's title is not void, but simply voidable, or are predicated on the equally unsound premise that one having no title can successfully invoke the aid of a court of equity to 'remove a cloud' from such nonexistent title; that is to say, can ask a court to subtract something from nothing.
Decree reversed, and case remanded, with directions to dismiss the bill.