Tyler v. Judges of Court of Registration

Holmes, C. J. This is a petition for a writ of prohibition against the judges of the Court of Registration established by St. 1898, c. 562, and is brought to prevent their proceeding upon an application concerning land in which the petitioner claims an interest. The ground of the petition is that the act establishing the court is unconstitutional. Two reasons are urged against the act, both of which are thought to go to the root of the statute and to make action under it impossible. The first and most important is that the original registration deprives all persons except the registered owner of any interest in the land without due process of law. There is no dispute that the object of the system, expressed in § 38, is that the decree of registration “ shall bind the land and quiet the title thereto,” and “ shall be conclusive upon and against all persons,” whether named in the proceedings or not, subject to few and immaterial exceptions. And this being admitted, it is objected that there is no sufficient process against, or notice to, persons having adverse claims, in a proceeding intended to bar their possible rights. The application for registration is to be in writing and signed and sworn to. It is to contain an accurate description of the land, to set forth clearly other outstanding estates or interests known to the petitioner, to identify the deed by which he obtained title, to state the name and address of the occupant if there is one, and also to give the names and addresses so far as known of the occupants of all lands adjoining. § 21. As soon as it is filed, a memorandum containing a copy of the description of the land concerned is to be filed in the registry of deeds. § 20. The case is immediately referred to an examiner (appointed by the judge, § 12), who makes as full an investigation as he can and reports to the court. § 29. If in the opinion of the examiner the applicant has a good title as alleged, or if the applicant after-an adverse opinion elects to proceed further, the recorder is to publish a notice by order of the court in some newspaper — 73 — published in the district where any portion of the land lies. This notice is to be addressed by name to all persons known to have an adverse interest, and to the adjoining owners and occupants so far as known, and to all whom it may concern. It is to contain a description of the land, the name of the applicant, .and the time and place of the hearing. § 31. A copy is to be mailed to every person named in the notice whose address is known, and a duly attested copy is to be posted in a conspicuous place on each parcel of land included in the application, by a sheriff or deputy sheriff, fourteen days at least before the return day. Further notice may be ordered by the court. § 32. It will be seen that the notice is required to name all persons known to have an adverse interest, and this of course includes any adverse claim, whether admitted or denied, that may have been discovered by the examiner, or in any way found to exist. Taking this into account, we should construe the requirement in § 21 concerning the application, as calling upon the applicant to mention not merely outstanding interests which he admits, but equally all claims of interest set up although denied by him. We mention this here to dispose of an objection of detail urged by the petitioner, and we pass to the general objection that, however construed, the mode of notice does not satisfy the Constitution, either as to persons residing within the State upon whom it is not served, or as to persons residing out of the State and not named. If it does not satisfy the Constitution, a judicial proceeding to clear titles against all the world hardly is possible, for the very meaning of such a proceeding is to get rid of unknown as well as known claims, — indeed certainty against the unknown may be said to be its chief end, — and unknown claims cannot be dealt with by personal service upon the claimant. It seems to have been the impression of the Supreme Court of Ohio, in the case most relied upon by the petitioner, that such a judicial proceeding is impossible in this country. State v. Guilbert, 56 Ohio St. 575, 629. But we cannot bring ourselves to doubt that the Constitutions of the United States and of Massachusetts at least permit it as fully as did the common law. Prescription or a statute of limitations may give a title good against' the world and destroy all manner of outstanding claims — 74 — without any notice or judicial proceeding at all. Time and the chance which it gives the owner to find out that he is in danger of losing rights are due process of law in that case. Wheeler v. Jackson, 137 U. S. 245, 258. The same result used to follow upon proceedings which, looked at apart from history, may be regarded as standing half way between statutes of limitations and true judgments in rem, and which took much less trouble about giving notice than the statute before us. We refer to the effect of a judgment on a writ of right after the mise joined and the lapse of a year and a day; Booth, Real Actions, 101, in margine; Fitz. Abr. Continual Claim, pl. 7, Faux Recovere, pl. 1; Y. B. 5 Ed. III. 51, pl. 60; and of a fine with proclamations after the same time or by a later statute after five years. 2 Bl. Com. 354. 2 Inst. 510, 518. St. 18 Ed. I., modus levandi fines. 34 Ed. III. c. 16. 4 & 5 Hen. VII. c. 24. 32 Hen. VIII. c. 36. It would have astonished John Adams to be told that the framers of our Constitution had put an end to the possibility of these ancient institutions. A somewhat similar statutory contrivance of modern days has been held good. Turner v. New York, 168 U. S. 90. Finally, as was pointed out by the counsel for the petitioner, a proceeding in rem in the proper sense of the word might give a clear title without other notice than a seizure of the res and an exhibition of the warrant to those in charge. 2 Browne, Civ. & Adm. Law, 398. The general requirement of advertisement in admiralty cases is said to be due to rules of court. U. S. Adm. Rule 9. Betts, Adm. Practice (1838), 33, 34, App. 14. The prohibition in the Fourteenth Amendment of the Constitution of the United States against a State depriving any person of his property without due process of law, and that in the twelfth article of the Massachusetts Bill of Rights, refer to somewhat vaguely determined criteria of justification, which may be found in ancient practice; Murray v. Hoboken Land Improvement Co. 18 How. 272, 277; or which may be found in convenience and substantial justice, although the form is new. Hurtado v. People, 110 U. S. 516, 528, 531. Holden v. Hardy, 169 U. S. 366,388, 389. The prohibitions must be taken largely, with a regard to substance rather than to form, or they are likely to do more harm than good. It is not enough to show — 75 — a procedure to be unconstitutional to say that we never have heard of it before. Hurtado v. People, 110 U. S. 516, 537. Looked at either from the point of view of history or of the necessary requirements of justice, a proceeding in rem dealing with a tangible res may be instituted and carried to-judgment without personal service upon claimants within the State or notice by name to those outside of it, and not encounter any provision of either Constitution. Jurisdiction is secured by the power of the court over the res. As we have said, such a proceeding would be impossible, were this not so, for it hardly would do to make a distinction between the constitutional rights of claimants who were known and those who were not known to the plaintiff, when the proceeding is to bar all. Pennoyer v. Neff, 95 U. S. 714, 727. The Mary, 9 Cranch, 126, 144. Mankin v. Chandler, 2 Brock. 125, 127. Brown v. Levee Commissioners, 50 Miss. 468, 481. Freem. Judgments, (4th ed.) §§ 606, 611. In Hamilton v. Brown, 161 U. S. 256, a judgment of escheat was held conclusive upon persons notified only by advertisement to all persons interested. It is true that the statute under consideration required the petition to name all known claimants, and personal service to be made on those so named. But that did the plaintiffs no good, as they were not named. So a decree allowing or disallowing a will binds everybody, although the only notice of the proceedings given be a general notice to all persons interested. And in this case, as in that of escheat just cited, the conclusive effect of the decree is not put upon the ground that the State has an absolute power to determine the persons to whom a man’s property shall go at his death, but upon the characteristics of a proceeding in rem. Bonnemort v. Gill, 167 Mass. 338, 340. See 161 U. S. 263, 274. Admiralty proceedings need only to be mentioned in this connection, and further citation of cases seems unnecessary. Speaking for myself, I see no reason why what we have said as to proceedings in rem in general should not apply to such proceedings’ concerning land. In Arndt v. Griggs, 134 U. S. 316, 327, it is said to be established that “ a State has power by statute to provide for the adjudication of titles to real estate within its limits as against non-residents who are brought into court only by publication.” In Hamilton v. Brown, 161 U. S. — 76 — 256, 274, it was declared to be within the power of a State “ to provide for determining and quieting the title to real estate within the limits of the State and within the jurisdiction of the court, after actual notice to all known claimants, and notice by-publication to all other persons.” I doubt whether the court will not take the further step when necessary, and declare the power of the States to do the same thing after notice by publication alone. See Huling v. Kaw Valley Railway Improvement Co. 130 U. S. 559, 564; Parker v. Overman, 18 How. 137, 140, 141 et seq. But in the present case provision is made for notice to all known claimants by the recorder, who is to mail a copy of the published notice to every person named therein whose address is known. § 32. We shall state in a moment our reasons for thinking this form of notice constitutional. See further Cook v. Allen, 2 Mass. 462, 469, 470; Dascomb v. Davis, 5 Met. 335, 340 ; Brock v. Old Colony Railroad, 146 Mass. 194,195. But it is said that this is not a proceeding in rem. It is certain that no phrase has been more misused. In the past it has had little more significance than that the right alleged to have been violated was a right in rem. Austin thinks it necessary to quote Leibnitz for the sufficiently obvious remark that every right to restitution is a right in personam. So as to actions. If the technical object of the suit is to establish a claim against some particular person, with a judgment which generally, in theory at least, binds his body, or to bar some individual claim or objection, so that only certain persons are entitled to be heard in defence, the action is in personam, although it may concern the right to or possession of a tangible thing. Mankin v. Chandler, 2 Brock. 125, 127. If, on the other hand, the object is to bar indifferently all who might be minded to make an objection of any sort against the right sought to be established, and if any one in the world has a right to be heard on the strength of alleging facts which, if true, show an inconsistent interest, the proceeding is in rem. Freem. Judgments, (4th ed.) § 606 ad fin. All proceedings, like all rights, are really against persons. Whether they are proceedings or rights in rem depends on the number of .persons affected. Hence the res need not be personified and made a party defendant, as happens with the ship in the admiralty; it need not even be a tangible thing at all, as — 77 — sufficiently appears by-the case of the probate of wills. Personification and naming the res as defendant are mere symbols, not the essential matter. They are fictions, conveniently expressing the nature of the process and the result, nothing more. It is true as an historical fact that these symbols are used in admiralty proceedings, and also, again merely as an historical fact, that the proceedings in rem have been confined to cases where certain classes of claims, although of very divers sorts, — for indemnification for injury, for wages, for salvage, etc., — are to be asserted. But a ship is not a person. It cannot do a wrong or make a contract. To say that a ship has committed a tort is merely a shorthand way of saying that you have decided to deal with it as if it had committed one, because some man has committed one in fact. There is no a priori reason why any other claim should not be enforced in the same way. If a claim for a wrong committed by a master may be enforced against all interests in the vessel, there is no juridical objection to a claim of title being enforced in the same way. The fact that it is not so enforced under existing practice affords no test of the powers of the Legislature. The contrary view would indicate that you really believed the fiction that a vessel had an independent personality as a fact behind the law. Furthermore, naming the res as defendant, although a convenient way of indicating that the proceeding is against property alone, that is to say, that it is not to establish an infinite personal liability, is not of the essence. If, in fact, the proceeding' is of that sort, and is to bar all the world, it is a proceeding in rem. Then as to seizure of the res. It is convenient in the case of a vessel, in order to secure its being on hand to abide judgment, although in the case of a suit against a man jurisdiction is regarded as established by service without the need of keeping him in prison to await judgment. It is enough that the personal service shows that he could have been seized and imprisoned. Seizure, to be sure, is said to be notice to the owner. Scott v. Shearman, 2 W. Bl. 977, 979. Mankin v. Chandler, 2 Brock. 125,127. But fastening the process or a copy to the mast would seem not necessarily to depend for its effect upon the continued custody of the vessel by the marshal. However this may be, when we come to deal with immovables there — 78 — would be no sense whatever in declaring seizure to be a constitutional condition of the power of the Legislature to make a proceeding against land a proceeding in rem. Hamilton v. Brown, 161 U. S. 256, 274. The land cannot escape from the jurisdiction, and, except as security against escape, seizure is a mere form, of no especial sanctity, and of much possible inconvenience. I do not wish to ignore the fact that seizure, when it means real dispossession, is another security for actual notice. But when it is considered how purely formal such an act may be, and that even adverse possession is possible without ever coming to the knowledge of a reasonably alert owner, I cannot think that the presence or absence of the form makes a constitutional difference; or rather, to express my view still more cautiously, I cannot but think that the immediate recording of the claim is entitled to equal effect from a' constitutional point of view. I am free to confess, however, that, with the rest of my brethren, I think the act ought to be amended in the direction of still further precautions to secure actual notice before a decree is entered, and that, if it is not amended, the judges of the court ought to do all that is in their power to satisfy themselves that there has been no failure in this regard before they admit a title to registration. The quotations which we.have made show the intent of the statute to bind the land, and to make the proceedings adverse to all the world, even if it were not stated in § 35, or if the amendment of 1899 did not expressly provide that they should be proceedings in rem. St. 1899, c. 131, § 1. Notice is to be posted on the land just as admiralty process is fixed to the mast. Any person claiming an interest may appear and be heard. § 34. But perhaps the classification of the proceeding is not so important as the course of the discussion thus far might seem to imply. I have pursued that course as one which is satisfactory to my own mind, but for the purposes of decision a majority of the court prefer to assume that in cases in which, under the constitutional requirements of due process of law, it heretofore has been necessary to give to parties interested actual notice of the pending proceeding by personal service or its equivalent in order to render a valid judgment against them, it is not in the power of the Legislature, by changing the form of the proceeding from an action in personam to a suit in rem, to avoid the — 79 — necessity of giving such "a notice, and to assume that under this statute personal rights in property are so involved and may be so affected that effectual notice and an opportunity to be heard should be given to all claimants who are known or who by reasonable effort can be ascertained. It hardly would be denied that the statute takes great precautions to discover outstanding claims, as we already have shown in detail, or that notice by publication is sufficient with regard to claimants outside the State. With regard to claimants living within the State and remaining undiscovered, notice by publication must suffice of necessity. As to claimants living within the State and known-, the question seems to come down to whether we can say that there is a constitutional difference between sending notice of a suit by a messenger and sending it by the post office beside publishing in a newspaper, recording in the registry, and posting on the land. It must be remembered that there is no constitutional requirement that the -sum-mans, even in a personal action, shall be served by an officer, or that the copy served shall be officially attested. Apart from local practice, it may be served by any indifferent person. It may be served on residents .by leaving a copy at the last and usual place of abode. When we are considering a proceeding of this kind, it seems to us within the power of the Legislature to say that the mail, as it is managed in Massachusetts, is a sufficient messenger to convey the notice, when other means of notifying the party, like publishing and posting, also are required. We agree that such an act as this is not to be upheld without anxiety. But the difference in degree between the case at bar and one in which the constitutionality of the act would be un- . questionable seems to us too small to warrant a distinction. If the statute is within the power of the Legislature, it is not for us to criticise the wisdom or expediency of what the Legislature has done. We do not think it necessary to refer to the elaborate collection of statutes presented by the Attorney General for the purpose of showing that the principle of the present act is old.* — 80 — Although no .question is made on that'point, we may mention that an appeal is given to the Superior Court with the right to claim a jury. In our opinion, the main objection to the act fails. See Shepherd v. Ware, 46 Minn. 174; People v. Simon, 176 Ill. 165; Short v. Caldwell, 155 Mass. 57, 59; Loring v. Hildreth, 170 Mass. 328. The other objection to the constitutionality of the statute is with regard to the powers and duties of the recorder and assistant recorder. It is said that they are given judicial powers after the original registration, although not judicial officers under the Constitution. The act of registration is the operative act to convey title, § 50; and by the act of 1898 the assistant recorder does it unless in doubt. §§ 53, 55, 57, 58, 61, 62, 63. It is said that as his decision affects title it must be judicial. But here again it is necessary to use a certain largeness in interpreting broad constitutional provisions. The ordinary business of registration is very nearly ministerial. There is no question to be raised or which can be raised. If there is a question, either raised by any — 81 — party in interest or occurring to the assistant recorder, it is to be referred to the judge for decision. § 53. But whatever may be thought of the original act, by amendment even the ordinary business is to be done only “ in accordance with the rules and instructions of the court.” St.' 1899, c. 131, § 8. Under this amendment registration is the act of the court. The fact that it may be done by the assistant recorder under general orders when there is no question is not different from the power of .the clerk to enter judgment in cases ripe for judgment under a general order or rule of the Superior Court. It should be observed that by § 55 the production of the owner’s duplicate certificate whenever any voluntary instrument is presented for registration is conclusive authority from the registered owner for the entry of a new certificate or the making of a memorandum of registration, and that a registration procured by presenting a forged certificate, etc., is void. Finally, it is said 'that there is no provision for notice before registration of transfers or dealings subsequent to the original registration. It must be remembered that at all later stages no one can have a claim which does not appear on the face of the registry. The only rights are registered rights, and when land is brought into the registry system there seems to be nothing to hinder the Legislature from fixing the conditions upon which it shall be held under that system. People v. Simon, 176 Ill. 165,176. By § 45, the obtaining of a decree of registration, which is a voluntary act, is an agreement running with the land that the land shall be and remain registered land and subject to the provisions of the act. Furthermore, in deciding whether substantial justice is done it is to be borne in mind that ordinary cases will present no question at all. It is contemplated, as we have said, that if there is a question to be discerned it shall be referred to the court, and of course that the court will order notice to any party interested. The act shows throughout the intent that no one shall be concluded without having a chance to be heard, and, although some of its methods are new to this Commonwealth, we cannot say that the precautions as to notice are insufficient in substance or form. Petition denied. Footnotes [*] The Attorney General cited: Ala. Code, 1896, §§ 690, 3165. Sts. Ark. 1894, §§ 2851-2855, 2859, 5418. 3 Cal. Code, §§ 756, 757, 759, 766, cls. 1-3. Sts. Col. §§ 3350, 3351, 3358, 3753, 3759. Gen. Sts. Conn. 1888, §§ 945, — 80 — 946. Rev. Sts. Fla. §§ 1493,1495. Ga. Code, 1895, §§ 3577, 4893, cls. 1-3; § 4976, cls. 1-8. Rev. Sts. Idaho, 1887, §§ 4561, 4564, 4565, 4574, cls. 1-3; § 4595. Sts. Ill- c. 22, §§ 7, 43; c. 41, §§ 18-20, 22-25, 27, 34, 35, 38; c. 106, §§ 7-10, 35. Rev. Sts. Ind. 1894, § 320, cls. 4, 5; §§ 2491, 2494. Iowa Code, 1897, §§ 3538, 4228, 4229, 4236. Rev. Sts. Maine, 1883, c. 88, § 22. Sts. Maine, 1895, c. 80, §§ 1, 3-6; c. 85, § 49. Md. Code Pub. Gen. Laws, 1888, art. 16, §§ 111-115.- Sts. Mich. 1882, §§ 6744-6746, 7860, 7861, 7880, cls. 1-3. Sts. Minn. 1894, §§ 5771, 5817, 5818, 5839-5842. Miss. Code, §§ 498, 499, 518, 1703-1706, 3421, 3424. Mo. Code, 1896, §§ 395, 400, 401, 468, 1364-1368, 1737. 2 Mont. Code, 1895, §§ 1348, 1351, 1361, cls. 1-3. Comp. Sts. Neb. 1895, § 5675. Pub. Sts. N. H. c. 243, §§ 1-5, 8, 10-12. Sts. N. J. 1881, c. 176, §§1,2; 1893, c. 142, §§ 1, 2. Sts. N. Y. 1890, c. 503, §§ 1-7. N. Y. Code Civil Procedure, § 438, cls. 1, 5; §§ 1541, 1582, 1979, 2518, 2523. Sts. N. C. 1887, c. 284, §§ 1-3. Sts. Ohio, §§ 5053, 6416, 6419. Gen. Sts. Oregon, 1892, §§ 426, 427, 432, cls. 1-3. 1 Brightly’s Purdon’s Digest, p. 606, § 185; 2 Brightly’s Purdon’s Digest, p. 1639, § 5; p. 1641, § 16; 3 Pepper & Lewis’ Digest, p. 504, § 8; p. 507, § 12. Gen. Sts. R. I. 1896, c. 265, §§ 8, 16, 17, 24-26. Rev. Sts. S. C. 1893, §§ 2438-2440, 2444. Sts. So. Dak. 1899, §§ 6598, 6607, cl. 2; § 6896. Tenn. Code, 1896, §§ 3826, 3828, 5018-5021, 5023, 5040, cls. 1-3. Rev. Sts. Texas, 1895, arts. 1821-1830. Sts. Vt. l894, §§ 2549-2551. Va. Code, 1887, §§ 2400-2402. Wash. Code, § 5066, cls. 1-3; §§ 5557, 5558, 5560, 5561. W. Va. Code, 1891, c.42, §§ 6,7; c. 79, §§ 1,4; c. 124, §§ 11,12. Sts. Wis. 1898, §§ 1197,.1208, 2612, 3102, 3116, cls. 1-3; §§ 3186, 3196. Rev. Sts. Wyo. 1887, §§ 3009, 3010.