Fithian v. Monks

43 Mo. 502

Opinion

Wagner, Judge,

delivered the opinion of the court.

A re-hearing

Footnotes

•

* was granted in this case at the March term, 1868, and it has now been reargued with great thoroughness and ability by the respective counsel on each side. It may be stated at the outset that the case is one of considerable difficulty, and it is not easy on all -occasions to clearly mark the line of distinction exist-' ing between erroneous and irregular — voidable and void — judgments. The controlling question is whether the judgment that was rendered in the St. Louis Circuit Court on foreclosure of mortgage in the case of Mason v. Barnard and Eithian (the record of which was offered in evidence), so far as it affected the defendant Eliza B. Eithian and her estate, was absolutely void, or was merely voidable and reversible for error.

And this brings up the question whether the court had jurisdiction — first, of the party; and second, of the subject matter. Jurisdiction over the party is acquired where the person is actually and personally served with process within the territorial limits of jurisdiction, or where he appears and by his pleadings admits the jurisdiction. Jurisdiction of the cause is the power over the subject matter given by the laws of the sovereignty in which the tribunal exists.

As regards the party, the record shows that Mrs. Eithian was duly served with process, and therefore brought before the court according to the rules of law. There can be no question of the court having obtained a lawful jurisdiction of the person. The point, then, which presents the ground for contention in the case (and it is a matter of grave inquiry) is whether jurisdiction over the cause or subject matter was acquired, as far as Mrs. Eithian’s separate estate was concerned, and which was not included in the mortgage.

Upon the foreclosure of the mortgage in the original suit, the statute authorized the plaintiff to make her a defendant. ( R. O. 1855, ch. 113, § 7.) In order to apprehend and fully understand the merits of the ease, it will be not only convenient, but necessary, to consider the true character of the petition.

Its examination leaves no room to doubt that it was a petition under the statute to foreclose a mortgage. It was not, nor did it purport to be, either a proceeding or bill in chancery. The statements in the petition constituted a cause of action under the statute which might entitle the plaintiff to relief in accordance with its provisions. Besides the allegations or averments that were proper for this purpose, the petition contained in the same count — there being but one — this statement: “That, by the terms of the said conveyance, the said Eliza did expressly assume and agree to pay off and discharge the amount of said encumbrance or deed of trust upon the said premises as a part of the consideration or purchase money therefor.” The instrument contained a recital which tended to support this averment. It had never been executed by Mrs. Fithian, the grantee,^ but she had accepted the conveyance. In addition to the prayer for such relief as the court might have been authorized to grant under the statute in such a proceeding, there was also a prayer “ for judgment over, personally, against as well the said Eliza B. Fithian (the vendee) as against Barnard (the mortgagor), for any deficiency on a sale of the mortgaged property, together with interest and costs.” On this petition the court gave judgment in favor of the mortgagee, plaintiff in the action of Mason v. Barnard and Fithian, against both the mortgagor and his vendee, for the amount of the mortgage debt, together with an order of sale of.the mortgaged premises; and a further order that, if there were a deficiency at the sale, the residue should be levied of the other goods, chattels, lands, and tenements of both the mortgagor and the vendee ; and it was under this judgment that the land in controversy, which was not embraced in the mortgage, was levied upon and sold as the property of the defendant Fithian — plaintiff here; and the defendant in this suit claims under the sheriff’s deed.

It will thus be seen there was a combination of matters of law and matters of equity in the petition and in the same count. By the constitution of the State, “the judicial power as to matters of law and equity” was vested in the Supreme Court, the Circuit Courts, and such inferior tribunals as the General Assembly might establish. (Const., art. V, § 1, R. C. 1855, p. 76.) By statute, “ exclusive original jurisdiction in all civil cases, where not cognizable before the county courts and justices of the peace, and not otherwise provided by law, ” was vested in the Circuit Courts. (R. C. 1855, p. 533, § 8.) And a further> and special jurisdiction was conferred upon the Circuit Courts by the act concerning mortgages. (R. C. 1855, ch. 113.)

The whole course of judicial decisions in this State has recognized the distinction between matters of law and matters of equity, and the courts have uniformly been considered as having a law side and an equity side in reference to this general jurisdiction. To give the court jurisdiction in equity, a case in equity must be stated in the petition ; and to give a jurisdiction at law, a cause of action at law must be set forth. Now, it has been repeatedly decided in this court, and it must be considered as settled, if a consistent line of decisions can be considered as settling anything, that a petition for the foreclosure of a mortgage, under the statute, is a proceeding at law and not a proceeding in chancery, and that the jurisdiction is tobe exercised not according-to the doctrines and practice of equity, but according to the practice and principles of law.

This statute was first enacted when Missouri was a territory, and when there were no courts of chancery, and it was provided that the cause should proceed “ as in ordinary cases at common law.” (Carr v. Holbrook, 1 Mo. 240; Thayer v. Campbell, 9 Mo. 281.) The amendment of 1839 and the revision of 1845 provided that the courts should proceed in these cases as in other actions at law, but that nothing contained in the statute should prevent the party from proceeding, in a court of chancery, to foreclose a mortgage according to the course of proceeding in chancery in such cases. (Laws of Mo. 1839, p. 82 ; Rev. Stat. 1845, p. 952.) The new practice act of 1849 in a measure assimilated the forms of proceedings in eases at law and in equity, and the revision of 1855 substituted in the act relating to mortgages, in place of the former provisions on this subject, a clause to the effect that in suits under the statute “ the proceedings shall conform as near as may be to the proceedings in ordinary civil actions.” (R. C. 1855, pp. 1090-91, § 18.) This provision is not to be understood as intending to abolish the distinction between a statute proceeding at law and a petition in the nature of a bill in equity to foreclose a mortgage. It has been expressly so decided by this court since the new code of practice was adopted. (Riley v. McCord, 24 Mo. 265 ; Mason v. Barnard, 36 Mo. 384.) There have been numerous decisions to the like effect in reference to the general jurisdiction in cases at law and in equity.

In Riley v. McCord it was held that although a petition for a foreclosure of mortgage might be addressed to the judge “ in chancery sitting,” and the petitioner styled “your orator,” and the prayer,that “a writ of subpoena issue,” yet that if, in accordance with the prayer of the petitioner, a judgment or decree was rendered that the equity of redemption be foreclosed and the mortgaged premises sold — and, if not sufficient to satisfy the mortgage debt, a general judgment over — it was to be regarded as a statutory foreclosure, and, notwithstanding it contained some of the elements of a bill in equity, it must be considered as an action at law, and not a proceeding in equity. The court pointedly remarks: ‘ ‘ Had the proceeding been in chancery, there is a part of the judgment which it is not competent for such a court to give. The judgment, in default of the mortgaged premises satisfying the mortgage debt, awards a general execution against the lands and goods of the debtor. A court of equity has no authority to enter such a decree on a bill to foreclose a mortgage. If the mortgaged property will not satisfy the debt for which it whs pledged, the remedy of the party is an action at law for the remainder of it.” This is clear law, and we think decisive as to the question whether the proceeding to foreclose the mortgage was under the statute or in equity. In Mason v. Barnard it was held that this very petition was a proceeding strictly according to the statute, and was not in the nature of a bill in equity; that the proceeding was not to be governed by the rules of proceedings in chancery; that the equity doctrine of subrogation had no application, and that no chancellor, exercising exclusively equitable powers, would have been justified in giving such a decree as that which was rendered upon this petition; and it was said that this distinction had not, it seems, been altered by the code allowing legal and equitable remedies to be joined; and it was decided that this judgment over against Eliza B. Eithian, personally, was “erroneous and irregular.” The further question, whether it were an absolute nullity and void for want of jurisdiction, was not necessarily involved, and was not determined.

In New York, on a bill filed for the satisfaction of a mortgage, it is the practice to decree payment by the mortgagor, or by any other person who may have become security for the payment of the debt, of the balance of the debt remaining unsatisfied after the sale of the mortgaged premises. This is done, however, by virtue of the express provisions of their statute. (2 Rev. Stat. p. 191, §§ 152, 154.) The statutory foreclosure appears to be a proceeding in chancery, and the court gives a personal judgment against the vendee of a mortgagor, based upon the equity doctrine that such contract of the vendee with the mortgagor amounts to an additional security taken by him, and inures to the benefit of the mortgagee by equitable subrogation. (Burr v. Beers, 24 N. Y. 178 ; Curtis v. Tyler, 9 Paige, 432 ; Halsey v. Reed, id. 446 ; March v. Pike, 10 Paige, 595; Biyer v. Monholland, 2 Sandf. Ch. 478; King v. Whitely, 10 Paige, 465; Trotter v. Hughes, 2 Kern. 74; Vail v. Foster, 4 Comst. 312; Belmont v. Conran, 22 N.‘Y. 438.) But in that State, independent of statutory provision, the rule of equity is that a bill to foreclose is in the nature of a proceeding in rem, and the party is confined in his remedy to the pledge. The suit is not intended to act in personam. (Dunkley v. Van Buren, 3 Johns. Ch. 331, per Kent, Chancellor.)

The courts of Iowa seem to proceed in like manner and upon similar grounds under the statutes of that State. (Corbett v. Waterman, 11 Iowa, 88 ; Thompson v. Bertram, 14 Iowa, 476.)

So, in New Jersey, under their system of equity law, it is held that where one purchases land, and assumes in his deed' to pay off a bond and mortgage of his grantor, to which such land is subject, he thereby becomes a sui’ety in respect to the mortgage debt, and that the obligation of the purchaser to pay the debt inures to the benefit of the mortgagee, and he may enforce it against the purchaser to the extent of the deficiency in a bill to foreclose. (Klapworth v. Dressler, 2 Beasely’s Ch. 62.)

It is obvious that the above principles can have no 'application here, as it is clear that no such thing could have been done without the exercise of chancery powers, nor with .such powers without the further jurisdiction and authority which were given to the courts by statute. No such additional jurisdiction and power were conferred upon the courts of this State by our special statute. 'It authorizes the residue to be levied on the goods, chattels, lands, and ténements of the mortgagor, but not upon those of any other party. (R. C. 1855, ch. 113, § 11.) This vendee was in no sense a mortgagor under the contract or by subrogation, or otherwise, either in law or in equity; nor is the equity jurisdiction, where it exists, exercised on the ground that the vendee in such case has thereby become a mortgagor. As the proceeding is purely statutory, the remedy cannot be extended beyond its provisions, and it authorizes in no instance a personal judgment over for the residue where a deficiency occurs, except in the case of the mortgagor. But it is contended in the argument that though the judgment may have been wrong, still it was binding and valid till reversed on error, and that an innocent purchaser acquiring title under it, while it remained unreversed, should be protected. The operation and effect of judgments that are erroneous merely, but binding and conclusive until reversed for error, and judgments that are absolutely void for want of jurisdiction over the party or over the subject matter, has often been before the courts, and has been very clearly defined in many cases.

The subject has been thus treated by this court: “Where there is no authority in the court to act — when its proceedings are coram non judice — then they are null and void; but when the court has jurisdiction, however erroneous or irregular its proceedings may be, they are regarded as valid and binding until they have been reversed or annulled by suitable proceedings instituted for that purpose, and titles acquired by sales under them will be protected. (Jones v. Talbott, 9 Mo. 123; Coleman v. McAnulty, 16 Mo. 173; Chouteau v. Nuckolls, 20 Mo. 445; Shields v. Powers, 29 Mo. 315, 34 Mo. 188.) In McNair v. Biddle, 8 Mo. 264, where the same rule is clearly laid down and defined, it was conceded that “no title passes under or by virtue of an execution issued upon a void judgment; and if a judgment is void, advantage can be taken of it in any collateral proceeding.”

In Janney v. Spedden, 88 Mo. 395, it was decided that the sheriff’s deed upon the sale of land under the execution issued on a void judgment conveyed no title, and that the deed of the purchaser at sheriff’s sale to another party could convey no more title than he himself had. The counsel for the defendants in error have referred us to the case of Harvey v. Tyler, 2 Wall. 328, in which Judge Miller, speaking for the court, said: “ There is one principle underlying all the various classes of cases, which may be relied on to carry us through them all when we can be sure of its application. It is that, whenever it appears that a court possessing judicial powers has rightfully obtained jurisdiction of a cause, all its subsequent proceedings are valid, however erroneous they may be, until they are reversed on error or set aside by some direct proceeding for that purpose.” Certainly the proposition is undeniable that, where jurisdiction is rightfully obtained, the judgment will have precisely the effect ascribed to it in the paragraph above quoted. But the obtaining or acquiring jurisdiction is the question.

The law in regard to void and voidable judgments has been examined and laid down by the Supreme Court of the United States in a series of well-considered decisions. (Vorhees v. Bank of U. S., 10 Pet. 474; Elliott v. Piersol, 1 Pet. 340 ; Hickey v. Stewart, 3 How. 750; Shriver v. Lynn, 2 How. 43.) In Vorhees v. Bank of U. S., Mr. Justice Baldwin said: “If not warranted by the constitution or law of the land, our most solemn proceedings can confer no right which is denied to any judicial act under color of law which can properly be cleemed to have been done _ coram non judice — that is, by persons assuming the judicial function in the given case without lawful authority.” So, in Shriver v. Linn, supra, it is declared that a sale ordered by a court in a case where it had not jurisdiction must be considered as inadvertently done, or as an unauthorized proceeding, and in either branch of the alternative as a nullity. The rule appears quite plain, but the great difficulty is in its application. The case of Gilman v. Hovey, 26 Mo. 280, furnishes an apt illustration. There a judgment had been confessed, upon a statement filed with the clerk in vacation, under a special statute, which was clearly defective and insufficient in law; and the judgment was held to be erroneous merely, but not absolutely void. There was jurisdiction over the subject matter and the party, and there was power to render such a judgment in such a case, properly stated; but if there had been no lawful authority to give such judgment in any such case, however correctly stated, I suppose it would have been a nullity. For further illustrations see Janney v. Spedden, 38 Mo. 395; Shaw v. Gregoire, 41 Mo. 407; and Simonson v. Blake, 20 How. Pr. 484.

The case at bar, then, must be decided by the application of the principle above laid down. What do we find by an examination of the record ? Why, that in the suit of Mason v. Barnard and' Fithian, in the body of the petition, which stated a statutory cause of action at law, there were inserted and blended certain irrelevant and immaterial averments, which were alone not merely a defective statement of the case, whether at law or in equity, but would not have constituted, however completely stated, any cause of action or ground for the relief prayed for over which the court could have lawfully taken jurisdiction. Now, as before stated in this opinion, jurisdiction of the cause is the power over the subject matter given by the laws of the sovereignty in which the tribunal exists. It is plain that the government of this State conferred no jurisdiction on the Circuit Court, either as a court of law or a court of equity, to render a personal judgment over against Mrs. Fithian, who was not a mortgagor. It must be considered as an inadvertent assumption of judicial power not granted by law. It is true it was a court of general jurisdiction as to matters of both law and equity, and it had a special juris diction at law under the statue. But it is equally true that no authority had been conferred upon the court in either capacity, by the constitution and laws of this State, to take cognizance of such a cause and grant such relief.. Although the statute may make changes in the forms of pleadings, such changes do not necessarily affect the substance. The principles of law and equity and the powers of jurisdiction remain the same. I am of the opinion that the judgment, so far as it affected the vendee, Mrs. Eithian, personally, or her separate estate not included in the mortgage, was not merely erroneous or voidable and reversible on error, but that it was an absolute nullity, and that no title passed by a sale of her estate under the same.

It results, .therefore, that the judgment of the court below must

be reversed and the cause remanded.

The other judges concur.

As the opinion rendered on the re-hearing embraces an examination of the whole case, it is unnecessary to insert the original opinion delivered by Judge Holmes at the March term, 1868.