Hearing In Bank Denied. Beatty, C. J., Dissented from the Order Denying a Hearing In Bank.
Appeal from a judgment of the Superior Court of Tulare County. Wheaton A. Gray, Judge.
The land having been fully paid for by the successor in interest of the certificate of purchase, his successor acquires a title to the land of which the misfeasance of the public officers could not deprive him. (Hinckley v. Fowler , 43 Cal. 63; Himmelmann v. Cofran , 36 Cal. 413; Allen v. Dake , 50 Cal. 83; Pollard v. Putnam , 54 Cal. 634.) No jurisdiction was acquired by the holder of the certificate of purchase in the action to foreclose it for want of a sufficient return of service by posting, there being no recital in the record showing that the summons had been served upon the defendants, or either of them, and the record, failing to show a strict compliance with the law, fails to show jurisdiction. (Boyland v. Boyland , 18 Ill. 551; Galpin v. Page, 18 Wall. 351; Settlemier v. Sullivan , 97 U.S. 444; Cheely v. Clayton , 110 U.S. 701; Guaranty Trust Co. v. Green Cove R. R ., 139 U.S. 148; People v. Mullan , 65 Cal. 396; Pearson v. Pearson , 46 Cal. 610; Jordan v. Giblin , 12 Cal. 100; McMinn v. Whelan , 27 Cal. 300; People v. Pearson , 76 Cal. 400.) The holder of the certificate has title as against the state. ( Code Civ. Proc., secs. 315, 316, 345; San Francisco v. Luning , 73 Cal. 612; Civ. Code, sec. 1007; Croxall v. Shererd, 5 Wall. 269.)
Daggett & Adams, for Appellant.
Lamberson & Middlecoff, for Respondents.
The holding cannot be adverse to the state where, as in this case, the plaintiff claims to be entitled to receive title from the state. (Farish v. Coon , 40 Cal. 33; People v. Center , 66 Cal. 565; McCracken v. San Francisco , 16 Cal. 636.) The defendant holds the record title while plaintiff has no record title, and can only rely upon the statute of limitations as giving title. The question whether the possession of the grantors of plaintiff was adverse to the state is a question of fact upon which the court has found in favor of the defendants, and that finding cannot be disturbed. (Thomas v. England , 71 Cal. 456.) The possession of plaintiff must be presumed to have been in subordination to the legal title. (Sharp v. Daugney , 33 Cal. 505.)
JUDGES: Vanclief, C. Haynes, C., and Searls, C., concurred. Garoutte, J., Van Fleet, J., Harrison, J.
Action to quiet plaintiff's alleged title to forty acres of swamp land situate in the county of Tulare.
In 1856 Peter Goodhue applied to purchase the land in question from the state on a credit of five years, pursuant to section 5 of "an act to provide for the sale of swamp and overflowed lands belonging to this state" (approved April 28, 1855; Stats. 1855, p. 189), and thereupon such proceedings were regularly taken as entitled him to a certificate of purchase under section 8 of said act, and such certificate was issued to him on May 30, 1856. Goodhue inclosed the land, and resided thereon until October 28, 1861, when he conveyed the same by deed, and delivered possession thereof to Marshall D. Young, who thence resided thereon and maintained the inclosure until February 1, 1864, when he conveyed the same by deed, and delivered possession thereof to Samuel C. Young, who thence resided thereon and maintained the inclosure until May 10, 1870, when he by deed conveyed the same to Daniel Murphy, who then entered into possession of the land, kept it inclosed, and used it for grazing purposes until October, 1882, when he died testate. Thereafter such proceedings were regularly taken in the matter of the estate of Daniel Murphy that the land in question was distributed by the superior court, according to the will, to Daniel M. Murphy and Diana Murphy Hill. On February 9, 1885, Daniel M. Murphy conveyed by deed all his interest in the land to Diana Murphy Hill, who, on June 2, 1887, conveyed the whole thereof to William Thomas, who, on June 3, 1887, conveyed the same to plaintiff.
Daniel Murphy, during his lifetime, and his executors and devisees thereafter until March 30, 1888, held possession of the land by a sufficient inclosure, and used it for pasturing livestock, and paid the taxes thereon for every year during all that time. The land was assessed to plaintiff in the spring of 1888, and plaintiff paid the taxes for that year. All the deeds above mentioned were duly recorded.
The defendants entered upon the land in June, 1888, claiming it to be unsold swamp land, and made application to purchase the same from the state, and procured from the state a certificate of purchase on February 1, 1892.
On October 28, 1892, this action was commenced and defendants filed their answer, claiming title by virtue of the last-mentioned certificate of purchase. On March 10, 1893, and before the trial of this action, the state issued and delivered to defendant R. A. Maddux a patent for the land, as alleged in a supplemental answer of the defendants, filed May 9, 1893.
A book in the office of the county treasurer introduced as [42 P. 296] evidence by the defendants, an extract from which is contained in the record, shows that the principal and interest of the purchase price (one dollar per acre, with interest at ten per cent per annum) was fully paid by Peter Goodhue and his successors in interest as follows:
" Visalia, Tulare county, California, No. 33. Peter Goodhue's survey of swamp land in town 21 south, range 27 east, section 25, Mount Diablo, containing forty acres. Surveyed March 25, 1856, S.W. 1/4 of S.E. 1/4, section 23. Filed May 30, 1856. 1857, In. $ 4. July 18th received on the above $ 4. 1859, May 31st, by one year's interest, $ 4. 1862, September 15th, by two years' interest, $ 8. 1864, October 24th, by principal and two years' interest in full, $ 48."
Respondent contends, however, that the last item of this account (forty-eight dollars) was not paid until October 24, 1865; but in view of the ground, wholly independent of this, upon which I think the judgment should be reversed, it is immaterial whether the last payment was made on October 24, 1864, or on October 24, 1865, since it is admitted that the treasurer's account is correct, except as to the date of the last item, and that the last item of forty-eight dollars was paid as early as October 24, 1865.
On the eighteenth day of May, 1865, the people of the state, by the district attorney of the county of Tulare, commenced an action against Peter Goodhue and John Doe to annul the certificate of purchase issued to Goodhue in 1856, pursuant to an act of the legislature approved April 9, 1861 (Stats. 1861, p. 140), authorizing the forfeiture and annulling of such certificates of purchase for nonpayment of interest or principal of the purchase price of lands sold by the state on a credit. It was averred in the complaint that "said defendant John Doe, whose true name is unknown to plaintiff, claims to be the holder of said certificate of purchase, and to have an interest in said land adverse to plaintiff.. .. . That on the sixteenth day of November, 1864, there was remaining due plaintiff from defendant, and which had been due for more than thirty days, two years' interest on said lands, to wit: The sum of eight dollars;. .. . and said sum of interest still remains due and unpaid;. .. . that defendant is delinquent as aforesaid, and has thereby forfeited all his right, title, claim, and interest in said lands." At the time this action to annul the certificate was commenced, and during the whole period of its pendency, Samuel C. Young was in possession of the land, claiming to own the same by virtue of his recorded deed from M. D. Young.
The only evidence of service of summons on the defendants is the return of the sheriff indorsed thereon as follows:
" Sheriff's Office,
" Tulare County.
" I hereby certify that I received the within summons on the 29th day of May, A. D. 1865, and personally served the same on Peter Goodhue, defendant therein named, by delivering to him a copy of said summons, attached to a certified copy of the complaint in said action, and also served the within summons on unknown owners sued under the fictitious name of John Doe, by posting a copy of the within summons in two public places in the township in which the real estate described in the complaint is situated, and one copy on the courthouse in Visalia, Tulare county.
" Dated July 29, 1865."
Section 2, page 140, of said act of April 9, 1861, provides: "If the name of the holder of the certificate of purchase be not known he may be sued under a fictitious name, and service of summons may be had by posting one copy of the summons, containing a description of the land, for three weeks, at the courthouse door of the county, and two copies in public places in the township where the land is situate."
The judgment annulling the certificate, and declaring all rights of the defendant to the land forfeited, was taken by default, on October 30, 1865. It recites that the default of the defendants "for not appearing or answering has been duly entered"; but does not recite that summons had been served in any manner on either of the defendants.
The court below found that the plaintiff was not the owner of any estate in the land described in his complaint, but that defendants were the owners thereof; and thereupon adjudged that plaintiff take nothing by this action. The plaintiff appeals from the judgment and from an order denying his motion for a new trial. Counsel for appellant contends that the judgment purporting to annul the certificate is void, and that it so appears upon the face of the judgment-roll; and so it appears to me.
There was no service of summons on Samuel C. Young, who was the holder of the certificate and in possession of the land at the time the sheriff posted the copies of the summons, and who was sued by the fictitious name of John Doe. The deed of the land to Samuel C. Young, which incidentally gave him a right to the certificate of purchase as a muniment or evidence of title (Jackson v. Hyde , 91 Cal. 463; Henderson v. Grammar , 66 Cal. 332), was duly recorded on June 18, 1864, and there is no suggestion or pretense that he was not personally known to the attorney for the state at the time he commenced the action, it being alleged only that his "true name "was unknown to plaintiff. Yet it is true that the statute (act of April 9, 1861, sec. 2) provides: "If the name of the holder of the certificate of purchase be not known, he may be sued under a fictitious name, and service of summons may be had by posting," etc. Assuming that, under the circumstances above stated, service of summons by merely posting copies thereof as directed by the statute was due process of law, surely a substantial compliance with that statute was necessary to effect such service. But while the judgment-roll shows what was done to effect service of summons, it fails to show a substantial compliance with the statute. The statute requires one copy of the summons to be posted "for three weeks at the courthouse door of the county, and two copies in public places in the township where the land is situa te"; but the return of the sheriff, indorsed [42 P. 297] on the summons, fails to show that any copy of the summons was posted "at the door "of the courthouse, or even on the courthouse "for three weeks," or for a single day; and also fails to show that two copies were posted in the township "for three weeks," or for any specific period of time. A posting of a copy "on the courthouse" elsewhere than "at the door," even for the period of three weeks, would have been a substantial and material departure from the requirement of the statute. The obvious reason for requiring it to be posted "at the door" was that it would more probably be seen and read at that point than at the rear, or on any other part of the courthouse. These defects in the return of the sheriff cannot be supplied or cured by presumption, although they might have been supplied by a recital of due service in the judgment. "Where the record is silent as to what was done, it will be presumed that what ought to have been done was not only done, but rightly done; but when the record states what was done it will not be presumed that something different was done. If the record merely shows that the summons was served on the son of the defendant, it will not be presumed that it was served on the defendant. If the affidavit of the printer shows that the summons was published one month, it will not be presumed that it was published three." (Hahn v. Kelly , 34 Cal. 391; 94 Am. Dec. 742; Quivey v. Porter , 37 Cal. 462; Hastings v. Cunningham , 39 Cal. 143.) These cases have not been overruled in respect to the above quotation from Hahn v. Kelly, supra. (Estate of Newman , 75 Cal. 213; 7 Am. St. Rep. 146.) The following cases are also specifically in point: People v. Greene , 74 Cal. 400; 5 Am. St. Rep. 448; Hyde v. Redding , 74 Cal. 493; People v. Mullan , 65 Cal. 396.
The judgment purporting to annul the certificate of purchase to Goodhue being void, and the assignees of Goodhue having fully paid both principal and interest of the purchase price as early as October 24, 1865, if not a year earlier, it follows that the state had no beneficial interest in the land in 1888 when it issued a certificate of purchase to the defendant Maddux, nor in 1893 when it issued to him a patent; and, consequently, such patent to Maddux conveyed no title to him.
After the purchase price was fully paid by Goodhue and his assignees, the holder of the certificate of purchase, issued to him in 1856, was the owner of the land, the state being merely a naked trustee of the legal title, which it was and still is bound to convey to the equitable owner on demand; and, therefore, had no power to sell the land to another. A vested right to a patent from the state for public land is equivalent to a patent so far as the state is concerned. (Stark v. Starrs, 6 Wall. 402; Wirth v. Branson , 98 U.S. 118; Benson Min. Co. v. Alta Min. Co ., 145 U.S. 432; Huff v. Doyle , 93 U.S. 558; Pratt v. Crane , 58 Cal. 533; McCabe v. Goodwin , 106 Cal. 488.) That plaintiff's title was sufficient to support this action against the defendants to quiet it is clear. (Pennie v. Hildreth , 81 Cal. 130; Orr v. Stewart , 67 Cal. 275.)
The only other matter to be considered arises from the following additional facts: In December, 1888, the plaintiff, as the successor in interest to Peter Goodhue and John Doe, who were the defendants in the action to annul the certificate of purchase, moved the court to set aside judgment in that case purporting to annul the certificate on the grounds: 1. That the court never obtained jurisdiction of the person of the defendant John Doe; and 2. That the purchase price of the land had been fully paid before the commencement of that action. The superior court denied the motion. The plaintiff herein appealed from the order denying it, and this court affirmed the order on the ground of the great lapse of time between the date of the judgment and the making of the motion to set it aside, viz., twenty-three years. This court, by Mr. Justice Works, said: "We know of no provision of law which can be held to authorize the vacation of a judgment on a mere motion after so long a time." (People v. Goodhue , 80 Cal. 199.)
The respondent contends that this order denying plaintiff's motion to set the judgment aside, and the affirmance of it by this court, are conclusive of the validity of the judgment against the merely collateral attack made upon it in this case.
But no question as to the validity or regularity of the judgment was decided by this court. It was only decided that the judgment could not be reviewed on a mere motion after so long a time. If the judgment was void before the motion, neither the order denying the motion nor the affirmance of that order by this court imparted to the judgment any force or validity. It has been held that the affirmance by an appellate court of a void judgment imparts to it no validity; and especially if such affirmance is put upon grounds not touching its validity. I think Mr. Van Fleet in his book "Collateral Attack," section 16, correctly states the law applicable to this case as follows:
" In order to make a judgment void collaterally; either 1. A legal organization of the tribunal; or 2. Jurisdiction over the subject matter; or 3. Jurisdiction over the person must be wanting; or 4. One or more of these matters must have been lost after it once existed. When either of these defects can be shown, the judgment and all rights and titles founded thereon are void, even in the hands of a bona fide purchaser. In such cases the dignity of the court is of no concern. Thus, where a void judgment had been affirmed on appeal by the supreme court of Texas, the court said: 'The judgment of affirmance rendered by this court could not impart to it validity, but would itself be void by reason of the nullity of the judgment appealed from.' (Chambers v. Hodges, 23 Tex. 104, 110.) The supreme court of Mississippi said that the affirmance of a void judgment on appeal, upon grounds not touching but overlooking its invalidity, [42 P. 298] did not make it valid. (Wilson v. Montgomery, 14 Smedes & M. 205, 207.) When a judgment is lacking in any of the foregoing particulars, it matters not whether it was rendered by the highest or the lowest court in the land -- it is equally worthless. No one is bound to obey it. The oath of all officers, executive, legislative, or judicial compels them to disregard it. A few cases hold that want of jurisdiction over the person does not make the judgment of a superior court void (Gay v. Smith , 38 N.H. 171, 174; dictum in Kimball v. Fisk , 39 N.H. 110, 116; 75 Am. Dec. 213), but they are out of line, and wrong on principle.
I think the finding of the court that defendants owned the land in question is not justified by the evidence, and that the order and judgment appealed from should be reversed and the cause remanded for a new trial.
For the reasons given in the foregoing opinion, the order and judgment appealed from are reversed and a new trial granted.