Romig v. Gillett, 187 U.S. 111 (1902)
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Romig v. Gillett
No. 52
Argued October 20-21, 1902
Decided November 17, 1902
187 U.S. 111
APPEAL FROM THE SUPREME COURT
OF THE TERRITORY OF OKLAHOMA
Syllabus
Under §§ 3950, 3951 and 3955 of the statutes of Oklahoma, where a judgment of foreclosure and sale of land in Oklahoma Territory is based upon service of the summons by publication, the facts tending to show the exercise of due diligence in attempting to serve the defendant within the territory must be disclosed in the affidavit on which the order for service by publication is based.
But where a publication has been made, approved by the court and a decree entered thereon, and the mortgagee put in possession thereunder, the mortgage not having been paid, and the mortgagee has improved the property, § 4498 of the statutes of Oklahoma will protect the mortgagee in possession, and equitable principles must control the measure of relief to which the defendant is entitled, and while she will be given the right to appear, plead, and make such defense as under the facts and principles of equity she is entitled to, the possession of the mortgagee will not be disturbed in advance of such defense.
A mortgagee who enters into possession not forcibly but peacefully and under the authority of a foreclosure proceeding cannot be dispossessed by the mortgagor or one claiming under him so long as the mortgage remains unpaid (following Bryan v. Brasius, 162 U.S. 414).
On February 2, 1895, Don A. Gillett made and delivered to John Romig a note for seven hundred dollars, secured by a mortgage on eighty acres in Garfield County, Oklahoma. On February 6, 1895, the mortgagor sold and conveyed the real estate to Myrtle Gillett. On March 11, 1896, the mortgagee, Romig, commenced an action of foreclosure in the district court of that county against Don A. Gillett and Myrtle Gillett. In the petition, Myrtle Gillett was alleged to have some interest in the real estate, but junior and subsequent to plaintiff’s mortgage. A summons was issued and returned not served, the sheriff certifying that the defendants were not found in Garfield county. On June 2, plaintiff filed an affidavit for publication, which affidavit disclosed fully the nature of the action and the relief sought, and added:
Affiant further says that he is unable, and that the plaintiff is unable by using due diligence, to obtain service of summons on the said defendants within the Territory of Oklahoma.
Affiant further states that, on the __ day of March, 1896, he caused a summons to be issued in said cause for said defendants, directed to the Sheriff of Garfield County, Oklahoma Territory. Sheriff made return, "Defendants not found in my county."
Affiant further states upon information and belief that the said defendants Don A. Gillett and Myrtle Gillett are nonresidents of the Territory of Oklahoma, and that service of summons cannot be made on the said defendants Don A. Gillett and Myrtle Gillett within the said Territory of Oklahoma, and that said plaintiff wishes to obtain service upon said defendants by publication, and further, affiant sayeth not.
Publication was made and proof thereof filed as required by the statutes. On December 18, 1896, a judgment of foreclosure was entered against both defendants, and a sale of the real estate ordered. An order of sale was issued on January 20, 1897. A sale was made to the plaintiff and confirmed by the court March 1, 1897, and an order entered directing the sheriff to execute a deed to the purchaser and put him in possession. A deed was accordingly made, and the plaintiff put in possession on March 9, 1897. Thereafter, Daniel W. Harding purchased the property from the plaintiff Romig, received a deed therefor and entered into possession on March 10, 1897. He improved the property, which up to that time was unimproved prairie land, by the erection of three residences and other permanent structures of the value of $2,000, paid taxes to the amount of $200, and has ever since resided thereon.
On May 11, 1898, Myrtle Gillett filed a motion to set aside the judgment, and all proceedings had thereunder, on the ground that the court had never acquired any jurisdiction; that she was, at all times during the pendency of the action, a resident of the Territory of Oklahoma, living in an adjoining county and within twenty miles of the mortgaged real estate, and that she had no knowledge of the institution or prosecution of the cause until long after the sale of the land by the sheriff. Upon the hearing of this motion, the court entered an order setting aside the judgment and all subsequent proceedings and directing that she be put in immediate possession of the premises. This order and judgment of the trial court was affirmed by the supreme court of the territory on June 30, 1900 (10 Okl. 186), whereupon the case was brought here on appeal.
The statutes of Oklahoma of 1893, which were in force at the time of these proceedings, required that actions for the foreclosure of a mortgage be brought in the county in which the real estate is situated. Section 3950 authorized service by publication in such cases
where any or all of the defendants reside out of the territory, or where the plaintiff, with due diligence, is unable to make service of summons upon such defendant or defendants within the territory.
Sections 3951, 3955, and 4498 read as follows:
SEC. 3951. Before service can be made by publication an affidavit must be filed stating that the plaintiff, with due diligence, is unable to make service of the summons upon the defendant or defendants to be served by publication, and showing that the case is one of those mentioned in the preceding section. When such affidavit is filed, the party may proceed to make service by publication.
SEC. 3955. A party against whom a judgment or order has been rendered without other service than by publication in a newspaper, may at any time within three years after the date of the judgment or order, have the same opened, and be let in to defend. Before the judgment or order shall be opened, the applicant shall give notice to the adverse party of his intention to make such an application, and shall file a full answer to the petition, pay all costs, if the court require them to be paid, and make it appear to the satisfaction of the court, by affidavit, that, during the pendency of the action he had no actual notice thereof in time to appear in court and make his defense; but the title to any property, the subject of the judgment or order sought to be opened, which by it, or in consequence of it, shall have passed to a purchaser in good faith, shall not be affected by any proceedings under this section.
SEC. 4498. In all cases, any occupying claimant being in quiet possession of any lands or tenements for which such person can show a plain and connected title in law or equity, . . . or being in quiet possession of and holding the same by deed . . . from and under any person claiming title as aforesaid, . . . or being in quiet possession of and holding the same under sale on execution or order of sale against any person claiming title as aforesaid, . . . or any person in quiet possession of any land, claiming title thereto and holding the same under a sale and conveyance made . . . in pursuance of any order of court or decree in chancery, where lands are or have been directed to be sold, and the purchasers thereof have obtained title to and possession of the same without any fraud or collusion on his, her, or their part, shall not be evicted or thrown out of possession by any person or persons who shall set up and prove an adverse and better title to said lands, until said occupying claimant, his, her, or their heirs, shall be paid the full value of all lasting and valuable improvements made on said lands by such occupying claimant, or by the person or persons under whom he, she, or they may hold the same, previous to receiving actual notice by the commencement of suit on such adverse claim by which eviction may be effected.