Helms v. Chadbourne

Cole, JV I. We quite agree with the learned circuit judge in the view that the summons, in the foreclosure suit brought by Gross and March in the circuit court of Marathon county, was not served upon the infants Arthur C. Helms and Emma J. Beardsley (then Helms') in the manner required by statute; consequently the court acquired no jurisdiction over such infants, and the judgment in the action, so far as it attempted to bar or foreclose their rights, is void. It is conceded that these infants, at the time of such attempted service, were under fourteen years of age, and were living with their mother, Martha Helms, in Columbia county. The officer certified in his return that he served the summons and complaint on the defendants Martha Helms, Artlvivr Helms and Emma Helms. by delivering to each of them, in person, a true copy thereof, and leaving the same with each of them in the county of Columbia, Wisconsin, on the 30th day of .March, A. D. 1863. The statute provides that a summons shall he served by delivering a copy thereof as follows: 1st. If the action be against a minor under the age of fourteen years, to such minor personally, and also to his father, mother or guardian, or,if there he none within the state, then to any person homing the care and control of such minor, or with whom he shall reside, or in whose service he shall he employed. Section 9, ch. 124, R. S. 1858. The statute is very plain in its language, and evidently requires a copy of the summons to he personally delivered to the minor, while another copy should be delivered to the father, mother or guardian, as and for the infant, in order to give the court jurisdiction over the infant and bind it by its judgment. The court cannot dispense with these requirements of the statute, and hold a delivery of a copy of 68 the summons personally to the infant as a sufficient compliance therewith. It obviously would do so, if it should hold that the service of summons in this case was good as to the infants. The statute was manifestly framed for the protection of minors who are incapable of defending their rights in courts. And it is essential that it should be strictly followed, and that the summons should be served by delivering a copy personally to the infant, and also a copy to the father, mothei’, or person having the control of the infant, for such infant. There probably would be no question as to the insufficiency of the service in the case before us, had the suit been against the infants alone. But the mother, Martha Helms, was herself made a party defendant, and was individually served with process. This,' it is claimed by defendants’ counsel, was a compliance with the statute, and fully satisfied the object the legislature had in view in enacting it. The cases of Mullins v. Sparks, 43 Miss., 129, Smith v. Pattison, 45 id., 619, and Sanders v. Godley, 23 Ala., 473, are relied upon in support of this position. The cases in Mississippi were decided under a statute substantially like our own, and would sustain the service in this case as sufficient to bring the infants before the court. But we are unwilling to follow them, because they practically assume to dispense with the plain requisition of the statute in regard to the service of process upon minors. It is said it would have subserved no good purpose to have left copies of the summons with the mother for the infants, because she had already been individually served. But the conclusive answer to this argument is, that the statute clearly requires such a mode of service: ita lex scripta est. In the case in Alabama, the service was upon the mother as surviving parent of the infant defendants; and this was held good under a rule of chancery practice adopted in that state prescribing the mode of service in such cases. The decision may have been correct under the rule, but it really has no bearing on the question before us. We may remark that in a previous case, Hodges v. Wise, 16 Ala., 509, the court lays down the doctrine that where a parent and child are both made parties defendant to 69 a bill, the mere service of subpoena on the parent is insufficient to bring, the infant before the court under this same rule, but that it must specially appear from the officer’s return that a subpoena was served on the parent for the infant. This accords with our view of the meaning of our statute, which expressly declares that the service must be made by delivering a copy to the minor personally, and also to the father, etc., for the infant. In no other way can jurisdiction over the minor be obtained. And it therefore is no answer to say that it was useless to serve two copies of the summons on the mother for the infants in this case because she had been herself served as defendant in the action. The court having failed to acquire jurisdiction by proper service on the infants, the subsequent appointment of guardian ad litem was clearly irregular, and did not aid or cure such want of jurisdiction. Foster v. Hammond, 37 Wis., 185. II. The next question to be considered is, whether the plaintiffs, Arthur G. Helms and Emma J. Beardsley, have a right to redeem an undivided one-half of the mortgaged premises on paying one-half of the mortgage debt together with the interest, taxes and costs. There can be no controversy that they have that right providing they are able to show that the relation of mortgagors and mortgagees existed between the firm of O. H. & A. Helms and the firm of Gross & March, and that the deceased Frederick F. Farnham, when he purchased, had notice that Gross & March were not the absolute owners of the property, but held it merely as a security for the payment of what 0. H. & A. Helms owed them. There is considerable testimony which tends strongly to show, if it does not conclusively establish the fact, that Gross & March held the property as mortgagees up to the commencement of the foreclosui’e suit in 1863. It is conceded that they so held the property until the deed of October 25th, 1859, was executed by 0. H. & A. Helms to them, and placed upon record. "What was the real object of that conveyance — whether it was given by 0. H. & A. Helms in full satisfaction of the indébtedness which they then owed Gross & March, or for 70 the consideration expressed in the deed; or whether it was in the nature of further security, the relation of the parties not being intended to be changed by it; or whether the purpose of the conveyance was to hinder and delay the creditors of the grantors — is a matter of great doubt and uncertainty. It is strenuously argued by the counsel for the defendants, that the deed could not have been, and was not in fact, given and placed upon record solely as a security for a debt, but that the parties had in view some other object in making the conveyance. And the counsel insist that it is incumbent on the plaintiffs to explain the whole transaction: to show what the object was, and that it was honest and lawful, and that the deed was intended to be for a security. Doubtless the plaintiffs áre bound to make out a case .entitling them to redeem; they must establish the fact that the relation of debtor and creditor existed between 0. IT. & A. Helms and Cross & March after the deed was executed. Whether that was not quite satisfactorily established by the receipt given by Cross & March dated October 9th, 1860, by the correspondence between the parties, and by the admissions in the complaint in the foreclosure suit, we will not affirm. Possibly further evidence may be obtained, which will throw more light on these transactions and dealings between the two firms, and explain the purpose more clearly of making and recording this deed. We shall assume at present that the deed was given merely as a security for a debt, and that, as between the parties to it, it amounted, in equity, only to a mortgage. But the stress of the case lies in fastening upon Farnham, when he purchased, notice that this absolute deed was only a mortgage. If this absolute deed was only a mortgage, as we have assumed, the defeasance was in parol; that is, there was nothing which under the registry act would charge Earnham with notice, when he purchased, that it was a mortgage. But if he then had knowledge of such facts as would put a prudent man upon inquiry and enable him to find out the true character of this conveyance, this would be sufficient notice. Brinkman v. Jones, 44 Wis., 498. Is there anything in the 71 record which shows that Farnham was not a bona, fide purchaser, without notice of the claims of the Helmses in the property ? The lands were wild timber lands, wholly uncultivated. It is not pretended that Farnham had actual notice of that claim, and he positively denied under oath that he had any knowledge or information of any claim upon the property by the plaintiffs or any other person. But the learned circuit judge held that the judgment in the foreclosure action, and the record thereof remaining in the circuit court of Marathon county, were constructive notice to Farnham, at the time of his purchase from Gross & March, of all the matters and facts in said judgment and record recited, and that he must be considered as having purchased the property with knowledge that the instrument in the form of a deed was merely a mortgage. The effect of this judgment and record as constructive notice is therefore a material question to be considered. It is claimed by the learned counsel for the plaintiffs, that, as the circuit court in the foreclosure action acquired jurisdiction of the adult defendants, the judgment was constructive notice to all. subsequent purchasers from Gross & March, not only of the judgment itself and of the matters therein adjudged, but also of every material fact recited in the record and which might affect the title to their lands. And it is said that this position is amply and fully sustained by the. decision in Hoyt v. Jones, 31 Wis., 389. But we think this argument, when applied to the facts of this case, unsound, for two reasons: 1st. It was not necessary for Farnham to trace his title through that judgment. The record in the register’s office showed a perfect and complete title to the lands in Gross & March. Why had he not a right to purchase on the faith of that record? The judgment was not recorded in the register’s office, as it might have been, when it would have the effect of a recorded conveyance. 2d. Another reason is, that, so far as the plaintiffs are concerned, that whole proceeding in the foreclosure action was null and void. How upon what principle can the plaintiffs claim that this judgment is void — one which in no way ol 72 manner affects their rights in the property, and at the same time assert and insist that it is valid and operates as constructive notice. It seems to us the two positions are contradictory and inconsistent, condemned by the maxim, allegans contraria non est audiendus, or, according to “ the trite remark of Lord Bjnyoit, that a man is not permitted to blow hot and cold with reference to the same transaction, or insist, at different times, on the truth of each of two conflicting allegations, according to the promptings of his private interest.” Broom’s Legal Maxims, 127. The plaintiffs seek to repudiate entirely the binding force of the judgment — say that it is void as to them, — ■ while they invoke its aid and benefit as constructive ■notice. If the judgment is void, it cannot operate- as constructive notice in favor of any one. This probably would not be contested had the plaintiffs alone been defendants in the foreclosure suit. But because there were adult defendants united with them in the action, who were bound, it is said that this makes a difference. But it seems to its, if the judgment is void as to the plaintiffs for the want of jurisdiction, it should be held void, so far as they are concerned, as constructive notice. There ought to be some mutuality in the effect of the judgment, or it^will work great injustice. It appears that on the 1st of September, 1863, the judgment was entered which professed to bar the right of redemption in the lands. Farn-ham purchased of Gross & March February 20th, 1873, without either express or implied notice of any outstanding equity, except what that judgment gave him. It is not claimed that he had any actual notice even of the judgment. And while the judgment is clearly void as to the plaintiffs, it is insisted it must be held valid for the purpose of charging Farnha.m with notice of everything recited in the record affecting the title. The doctrine of lis pendens, it is admitted, at times works harshly, but is justified by the necessity there exists of putting an end to litigation and preventing a defendant from evading a decree by conveying the property in dispute after suit brought -and before decree. It is said that a post litem, purchaser stands upon the same ground as a purchaser pendente 73 Hie, and that after judgment the record of the proceedings in the action operates as constructive notice to such purchaser in the same manner and with like effect as lis pendens operates as notice pending the action. "We shall not enter upon a discussion of the doctrine of lis pendens or post litem, because we do not think it can properly be applied to the facts of this case. There must be some limitation to the rule, and we are not aware that any case has carried it so far as to hold that a judgment which is void as to a party could operate as constructive notice so far as that party is concerned. If we are right in these views, the judgment must be reversed without reference to any other question. If the plaintiffs satisfy the circuit court that they are able to obtain evidence showing that Earnham, when he purchased, had notice of their claim, we think that court should grant a new trial according to the suggestion in Law v. Grant, 37 Wis., 548; Pike v. Vaughn, 39 id., 500; Mc Williams v. Bannister, 40 id., 489; otherwise that the complaint should be dismissed. By the Cov/rt. — ■ It is so ordered.