TRIEBER, District Judge
(after stating the facts as above). The defendant relies for a reversal, upon two grounds: (1) That the mortgage executed by Christopher Stuart Patterson to Robert Campbell, as. whose assignee of the mortgage plaintiff claims, was absolutely void, as at the time the railway company conveyed these lands to Stuart, and the subsequent conveyances from Stuart to Patterson and the mortgage by Patterson to Robert Campbell, it had not received a patent from the government Cor these lands, although they had been granted to and selected by the railway company long before. (2) That the foreclosure proceedings which resulted in the decrees under which the plaintiff claims to have become the purchaser are absolutely void—the first, against Patterson, because Coulston was not made a party defendant; and the second, against Coulston, because he had not been. properly served with process to give tlie court, which rendered the decree, jurisdiction to render it.
[928]*928[ 1 ] As to the first proposition, a complete answer is that both parties claim title to the land from a common grantor -Patterson. This being the case it is not competent for either party to question the title of the grantor. When both parties assert title from a common grantor, and no other source, neither can deny that such common grantor had a valid title when he executed his conveyance. Robertson v. Pickrell, 109 U. S. 608, 615, 3 Sup. Ct. 407, 27 L. Ed. 1049.
[2] But, aside from that, the title of the Northern Pacific Railway Company to the lands granted by the act of Congress of July 2, 1864, was in prsesenti, and upon execution of the patent it related back to the date of the grant. That was expressly determined in St. Paul & P. R. R. Co. v. Northern Pacific Ry. Co., 139 U. S. 1, 11 Sup. Ct. 389, 35 L. Ed. 77.
[3] In addition to that the laws of the territory of Dakota, at the time these conveyances were made, provided:
“Where a person purports by proper instrument to grant real property in fee simple, and subsequently acquires any title or claim of title thereto, the same passes, by operation of law, to the grantee, or his successors.” Kev. Codes Dakota 1877 (Civil Code) § 633^
Was the decree of foreclosure under which plaintiff claims title absolutely void, so as to subject it to collateral attack? There were two separate decrees of foreclosure, under both .of which plaintiff claims title to the lands in controversy, having become the purchaser of them at both sales. The first action was against the mortgagor, Patterson, and his wife only. Both of these defendants were served with process in the territory of Dakota and a proper decree of foreclosure rendered. After the sale and purchase by the plaintiff under this decree it was discovered that Patterson had conveyed these lands, after the execution of the mortgage, but prior to the institution of the first foreclosure suit, to one J. Warren Coulston, under whom defendant claims title by purchase. Coulston not having been made a party to the foreclosure proceedings, an action to foreclose his equity of redemption was instituted by the plaintiff as mortgagee, and also as the purchaser of the lands under the former decree. A decree of foreclosure was rendered in that case, and upon a sale of' the lands .under the last decree they were purchased by the plaintiff.
[4] It is claimed that, Coulston being a nonresident of the territory of Dakota, residing in the city of Philadelphia, state of Pennsylvania, the order of the judge of the district court of Burleigh county, ini which the cause was pending, was a nullity, because the affidavit upon which the order was made did not comply with the terms of the statutes of the territory authorizing an order for constructive service. The statutes of the territory, of Dakota then in force on that subject, were as follows:
“Where the person on whom the service of the summons is to be made cannot, after due diligence, be found within the territory, and that fact appears by affidavit to the satisfaction of the court or a judge thereof, and it in like manner appears that a cause of action exists against the defendant in respect ■to whom the service is to be made, or that he is a proper party to an action relating to real property in this territory, such court or judge may grant an order that the service be made by the publication of a summons in either [929]*929of the following cases: * * * (4) Where the subject of the action is real or personal property in this territory, and the defendant has or claims a lien or interest, actual or conlingent, therein, or the relief demanded consists wholly or partly in excluding the defendant from any interest or lien therein. (5) * * ® When publication is ordered, personal service of a copy of the summons and complaint, out of the territory, is equivalent to publication and deposit in the post office. The defendant against whom publication is ordered, or his representatives, on application and sufficient cause shown at any time before judgment, must he allowed to defend the action; and. except in an action for divorce, the defendant against whom publication b: o! rterod. or his representatives, may, in like manner, upon good cause shown, bo allowed to defend after judgment, or at any time within one year after notice thereof, and within seven years after its rendition, on such terms as may be just; and if the defense be successful, and the judgment or any part thereof have been collected, or otherwise enforced, such restitution may thereupon be compelled as the court directs; but the title to property sold under such judgment to a purchaser in good faith shall not be thereby affected. * * * ” Key. Codes Dakota 1877 (Code of Civil Proc.) § 104.
It is claimed that the affidavit, which has been set out in the statement of fads, was void because it failed to state what diligence had been used to obtain service on Coulston within the territory, and that lie was not to be found in the territory. It may be conceded that, upon an appeal from a decree rendered upon such an affidavit, it would be declared insufficient to warrant an order of the court for substituted service, a question not before us, and therefore not determined; but it would not follow that a decree based upon such an affidavit and order would make the decree absolutely void, so that it could be attacked in a collateral proceeding. No authority has been called to our attention in the very elaborate brief of counsel for defendant, nor in the oral argument, 1o any decision of the Supreme Court of the territory of Dakota, or the state of North Dakota, where such a judgment or decree has been declared void when collaterally attacked, nor have we been able to find any such authority. The court which acted on the affidavit held it sufficient, and if it erred the error could only be corrected by appeal. The decree cannot be attacked collaterally. Applegate v. Mining Co., 117 U. S. 255, 6 Sup. Ct. 742, 29 L. Ed. 892; Pennoyer v. Neff, 95 U. S. 714, 721, 24 L. Ed. 565.
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TRIEBER, District Judge
(after stating the facts as above). The defendant relies for a reversal, upon two grounds: (1) That the mortgage executed by Christopher Stuart Patterson to Robert Campbell, as. whose assignee of the mortgage plaintiff claims, was absolutely void, as at the time the railway company conveyed these lands to Stuart, and the subsequent conveyances from Stuart to Patterson and the mortgage by Patterson to Robert Campbell, it had not received a patent from the government Cor these lands, although they had been granted to and selected by the railway company long before. (2) That the foreclosure proceedings which resulted in the decrees under which the plaintiff claims to have become the purchaser are absolutely void—the first, against Patterson, because Coulston was not made a party defendant; and the second, against Coulston, because he had not been. properly served with process to give tlie court, which rendered the decree, jurisdiction to render it.
[928]*928[ 1 ] As to the first proposition, a complete answer is that both parties claim title to the land from a common grantor -Patterson. This being the case it is not competent for either party to question the title of the grantor. When both parties assert title from a common grantor, and no other source, neither can deny that such common grantor had a valid title when he executed his conveyance. Robertson v. Pickrell, 109 U. S. 608, 615, 3 Sup. Ct. 407, 27 L. Ed. 1049.
[2] But, aside from that, the title of the Northern Pacific Railway Company to the lands granted by the act of Congress of July 2, 1864, was in prsesenti, and upon execution of the patent it related back to the date of the grant. That was expressly determined in St. Paul & P. R. R. Co. v. Northern Pacific Ry. Co., 139 U. S. 1, 11 Sup. Ct. 389, 35 L. Ed. 77.
[3] In addition to that the laws of the territory of Dakota, at the time these conveyances were made, provided:
“Where a person purports by proper instrument to grant real property in fee simple, and subsequently acquires any title or claim of title thereto, the same passes, by operation of law, to the grantee, or his successors.” Kev. Codes Dakota 1877 (Civil Code) § 633^
Was the decree of foreclosure under which plaintiff claims title absolutely void, so as to subject it to collateral attack? There were two separate decrees of foreclosure, under both .of which plaintiff claims title to the lands in controversy, having become the purchaser of them at both sales. The first action was against the mortgagor, Patterson, and his wife only. Both of these defendants were served with process in the territory of Dakota and a proper decree of foreclosure rendered. After the sale and purchase by the plaintiff under this decree it was discovered that Patterson had conveyed these lands, after the execution of the mortgage, but prior to the institution of the first foreclosure suit, to one J. Warren Coulston, under whom defendant claims title by purchase. Coulston not having been made a party to the foreclosure proceedings, an action to foreclose his equity of redemption was instituted by the plaintiff as mortgagee, and also as the purchaser of the lands under the former decree. A decree of foreclosure was rendered in that case, and upon a sale of' the lands .under the last decree they were purchased by the plaintiff.
[4] It is claimed that, Coulston being a nonresident of the territory of Dakota, residing in the city of Philadelphia, state of Pennsylvania, the order of the judge of the district court of Burleigh county, ini which the cause was pending, was a nullity, because the affidavit upon which the order was made did not comply with the terms of the statutes of the territory authorizing an order for constructive service. The statutes of the territory, of Dakota then in force on that subject, were as follows:
“Where the person on whom the service of the summons is to be made cannot, after due diligence, be found within the territory, and that fact appears by affidavit to the satisfaction of the court or a judge thereof, and it in like manner appears that a cause of action exists against the defendant in respect ■to whom the service is to be made, or that he is a proper party to an action relating to real property in this territory, such court or judge may grant an order that the service be made by the publication of a summons in either [929]*929of the following cases: * * * (4) Where the subject of the action is real or personal property in this territory, and the defendant has or claims a lien or interest, actual or conlingent, therein, or the relief demanded consists wholly or partly in excluding the defendant from any interest or lien therein. (5) * * ® When publication is ordered, personal service of a copy of the summons and complaint, out of the territory, is equivalent to publication and deposit in the post office. The defendant against whom publication is ordered, or his representatives, on application and sufficient cause shown at any time before judgment, must he allowed to defend the action; and. except in an action for divorce, the defendant against whom publication b: o! rterod. or his representatives, may, in like manner, upon good cause shown, bo allowed to defend after judgment, or at any time within one year after notice thereof, and within seven years after its rendition, on such terms as may be just; and if the defense be successful, and the judgment or any part thereof have been collected, or otherwise enforced, such restitution may thereupon be compelled as the court directs; but the title to property sold under such judgment to a purchaser in good faith shall not be thereby affected. * * * ” Key. Codes Dakota 1877 (Code of Civil Proc.) § 104.
It is claimed that the affidavit, which has been set out in the statement of fads, was void because it failed to state what diligence had been used to obtain service on Coulston within the territory, and that lie was not to be found in the territory. It may be conceded that, upon an appeal from a decree rendered upon such an affidavit, it would be declared insufficient to warrant an order of the court for substituted service, a question not before us, and therefore not determined; but it would not follow that a decree based upon such an affidavit and order would make the decree absolutely void, so that it could be attacked in a collateral proceeding. No authority has been called to our attention in the very elaborate brief of counsel for defendant, nor in the oral argument, 1o any decision of the Supreme Court of the territory of Dakota, or the state of North Dakota, where such a judgment or decree has been declared void when collaterally attacked, nor have we been able to find any such authority. The court which acted on the affidavit held it sufficient, and if it erred the error could only be corrected by appeal. The decree cannot be attacked collaterally. Applegate v. Mining Co., 117 U. S. 255, 6 Sup. Ct. 742, 29 L. Ed. 892; Pennoyer v. Neff, 95 U. S. 714, 721, 24 L. Ed. 565.
In the last-cited case this identical question was before the court under a statute of Oregon, which is practically the same as that of the territory of Dakota, and where the affidavit upon which the order for substituted service was made was almost identical with that in this case. The court there said:
“There is some difference of opinion among the members of this court as to the rulings upon these alleged defects. The majority arc of opinion that, inasmuch as the statute requires, for an order of publication, that certain facts shall appear by affidavit to the satisfaction of the court or judge, defects in such affidavit can only be taken advantage of on appeal, or by some other direct proceeding, and cannot be urged to impeach the judgment collaterally.” (The words in italics are in the opinion itself.)
The same conclusion was reached in Marx v. Ebner, 180 U. S. 314, 319, 21 Sup. Ct. 376, 45 L. Ed. 547, where the affidavit was almost identical with the one in this case, and the language of the statute practically the same. It was there held:
[930]*930“We think, where the affidavit shows that the defendant is a nonresident of the district and that personal service cannot be made upon him, and the marshal, or other irablic officer to whom the summons was delivered, returns it with his indorsement that after due and diligent search he cannot find the defendant, such proof is sufficient to give jurisdiction to the court or judge to decide the question. It is not to be expected that positive proof that the defendant cannot be found within the state or district will always be attainable. Facts must appear from which it will be a just and reasonable inference that the defendant could not after due diligence be found, and that due diligence has been exercised, and we think such an inference is reasonable when proof is made that the defendant is a nonresident of the state,_ and there is an affidavit that personal service cannot be made upon him within its borders, and there is a certificate of the marshal such as appears in this case.”
To the same effect are Cohen v. Portland Lodge, 152 Fed. 357, 81 C. C. A. 483; Bower v. Stein, 177 Fed. 673, 101 C. C. A. 299.
[5, 0] The original decree in the Patterson case is also attacked upon the ground that Coulston, his grantee, was not made a party thereto. But the failure to make subsequent grantees parties, especially when they are not in possession, would not deprive the court of jurisdiction. The only effect of such an omission would be that the right of redemption of the grantee remains in existence.
[7] It is also claimed that the plaintiff, Hugh Campbell, Jr., was not the owner of the mortgage; but the finding of the court, as recited in the decree, that the indebtedness secured by the Patterson mortgage was due to the plaintiff in that action, is conclusive in a collateral proceeding. No authorities need he cited on that proposition.
Other contentions have been made and carefully examined, but they are too frivolous to require notice. The conclusions reached malee it unnecessary to determine the question of plaintiff’s title by prescription, and the alleged laches of the defendant and his grantor. Upon the whole bill the defendant has failed to show any equities which can appeal to the conscience of -a court of equity. His grantor had actual notice of the pendency of the foreclosure proceedings. He made no defense. For over 20 years he took no steps to have the decree reviewed, as could have been done under the statutes of the territory of Dakota. He paid no taxes on the lands, and, as appears from the deed to the defendant in this case, he purchased it for a nominal consideration, laboring, no doubt, under the impression that the decree could be set aside upon payment of the mortgage debt; the lands, in the meantime, having increased tenfold in value.
The decree of the District Court was right, and is affirmed.