Tyler v. Judges of Court of Registration

I dissent from the opinion of the majority of the court, and think it proper to state the reasons which have brought me to the opposite conclusion.

It will be necessary to add to the statement of the general scope of the act, which is given in the opinion, by setting forth with some particularity those provisions, which, in the opinion of the majority of the court, sufficiently secure to those having adverse interests, that opportunity to be heard in defence of their rights of property, which is guaranteed to them by the constitutional provisions, that they shall not be deprived of their property except by due process of law or the law of the land. Fourteénth Amendment of the Constitution of the United States. Massachusetts Declaration of Rights, Art. 12.

By St. 1898, c. 562, §§ 31 and 32, notice of the application is to be issued by the court in a form specified in the act addressed to all known persons who claim an adverse interest and “ to all whom it may concern,” and the return day of the notice is to be not less than twenty nor more than sixty days from the date of the notice.

This notice is to be served (1) by publication “ in some newspaper published in the district where any portion of the lands lie ” (§ 31); (2) by posting it “ in a conspicuous place on each parcel of ” the land in question fourteen days before the return day (§ 32) ; and (3) by mailing a copy “ to every person named therein whose address is known,” within one week after publication in the newspaper. The posting of the notice is to be performed by a sheriff or his deputy (§ 32); the publication and mailing by the recorder of the court (§§ 31, 32); and the return of the former and the affidavit of the latter are made by § 32 “ conclusive proof of such service.”

It is provided that by the description in the notice “to all whom it may concern,” “ all the world are made parties defendant and shall be concluded by the default and order ” (§ 35), which, by the terms of § 36, “ shall first be entered against all persons who do not appear and answer ” on the return day.

Thirty days are allowed for an appeal from a decree in favor of the applicant (§ 14), and, on the expiration of that time, by the express provisions of § 38, the decree, confirming and registering the applicant’s title, 11 shall not be opened by reason of *83the absence, infancy, or other disability of any person affected thereby, nor by any proceeding at law or in equity for reversing judgments or decrees,” except only in case the decree was procured by the fraud of the applicant and rights of innocent third persons have not intervened. § 38.

The peculiarities of the act consist: first, in the fact that it bars or may bar the true owner, by a decree in a proceeding had in his absence, of which he did not in fact have notice, and to which he is not named as a party; second, in the fact that the notice to be given to those who are named therein is inappropriate and inadequate to bring home to them knowledge of the proceeding and enable them to appear and defend their right; third, in the fact that the return and affidavit of service by the sheriff and the recorder cannot be shown to be either false or incorrect; and fourth, in the fact that the decree made in that proceeding, unlike any other judgment or decree known to the law, is final and not subject to be attacked directly or collaterally, even if made in the absence of the true owner and without the true owner having in fact received any notice of the proceeding.

The Chief Justice upholds the statute upon the ground that the proceeding is a proceeding in rem; if it be such a proceeding, it is true that no person need be named as party respondent, and no notice beyond publication need be given. But some of the other justices, who concur in the opinion prefer to uphold the statute upon the ground that the opportunity to appear and be heard afforded by the notice here provided is not so far different from that afforded by personal service, or its equivalent, in an action in personam, as to forbid the Legislature adopting it. On what ground the majority, who deny that this is a proceeding in rem, place their conclusion that those not named as respondents either in the application or in the notice are barred, is not explicitly stated.

I will first deal with the question of the notice to be given to known respondents, that is, to those named in the notice issued by the court. It is patent that one having an adverse interest is not sure to receive notice of the proceeding, and to receive that notice in time to be heard. He may not see the notice posted on his own land; the parcel of land may be, for example, *84woodland, and many thousand acres in extent; or the owner may be properly absent from the county for the fourteen days in question, or he” may have given possession of the land to a tenant, and therefore properly leave it unvisited; or he may be a remainderman, and have no immediate right of entry, and certainly no likelihood of seeing a notice posted on the land; again, his interest in the land may be a right of way over, or of light and air in, the land of his neighbor, or an easement in the nature of an equitable restriction upon the height or position of buildings to be erected and maintained thereupon; in that case the notice would be posted on his neighbor’s land, and there is certainly no likelihood that he would see a notice posted there. One publication in one newspaper in the district where the land lies, to be made “ immediately upon the filing of the examiners’ opinion, or the applicant’s election, as the case may be,” (§ 31,) satisfies the statute, and nothing but the statement of that fact is necessary to show that such service of the notice is not certain to reach all named respondents. The service by mail may be made at any time within seven days after publication in the newspaper. The mail is a good messenger to carry a communication to one whose identity and exact address are known, as is the case where one writes to another with whom he is in regular correspondence, but it is not a good messenger to use in conveying notice to strangers whose identity and address are not necessarily known, and must be ascertained pro hap vice; this is recognized in the act when it provides that the notice is to be mailed, not to all respondents named in the notice, but to “ every person named therein whose address is known.” § 32. Had the provisions required the notice to be mailed to every one named, the practical result would probably have been the same; for the recorder has no means of knowing the identity and proper address of each respondent, and the provision that the affidavit of the recorder in the matter of mailing copies of the notice shall be conclusive, takes away from the applicant any temptation to use extraordinary diligence in furnishing to the recorder the exact name and address of those whose interest it will be, if brought in, to defeat the object which he seeks to obtain by bringing his application.

More than that, the mail was originally devised as a means *85of transmitting messages in business and social life, and not of serving notices of proceedings which may divest one of his property, and it has heretofore been treated as such by the public. A man not in business may reasonably absent himself from the Commonwealth in travelling for pleasure, and direct that all communications addressed to him shall be forwarded to him at specified places where he expects to go, but where he later decides that it is not his pleasure to go; it is probably within the experience of every one that many letters so forwarded are never received.

But the decisive objection to the provisions of the act as to notice to named respondents lies deeper than considerations of this nature alone; and it does not depend upon the question whether service by mail is as likely to reach the respondent as service at the defendant’s last and usual place of abode, as the opinion would seem to assume.

Each and every statute of Massachusetts, whether passed in the time of the Colony, the Province, or the Commonwealth, authorizing a judgment on default based on any but personal service, has given to the defendant, who .did not in fact have notice of the proceedings, and therefore no opportunity to be heard before the judgment was rendered, a right to have the judgment vacated on a writ of review. “ Such judgments in this State are treated as valid until reversed, for the reason that the parties have an adequate remedy by review or writ of error.” Wells, J., in Salem v. Eastern Railroad, 98 Mass. 431, 448.

It is definitely settled in other connections, that a right of appeal, or a right to a review, is sufficient to render constitutional a judgment, which, but for the right'to that appeal or review, would be void, as not securing to the defendant the rights guaranteed to him by the Constitution. Jones v. Robbins, 8 Gray, 329. Holmes v. Hunt, 122 Mass. 505, 516. Foster v. Morse, 132 Mass. 354.

The first statute in Massachusetts authorizing a judgment on default on any but personal service was the Colony Act of 1644. That act provided that in case property of the defendant was attached, the notice, or, as it is now termed, the separate summons, might be served upon the defendant by leaving the same “ at his house or place of usual abode,” with a proviso that if *86the defendant was at the time of service out of the jurisdiction, the case should be continued for a term before execution issued; and no execution should then issue until the plaintiff gave security to respond to the defendant “ if he shall reverse the judgment within one year, or such further time as the court shall permit.” Anc. Chart. 50. It is a fact of some interest that this is the origin in this Commonwealth of writs of review; and in this connection it is of no little importance that the origin of writs of review was to give to defendants who, being served under the statute and being absent from the colony at the time of service, did not know of the proceedings, an opportunity to have the judgment made in their absence vacated, if they had a good defence to the original claim.

This provision was re-enacted in 1700-1701 without substantial change, and was then extended to writs of dower and scire facias; it was then provided in the interest of the absent defendant that “no real estate taken in execution granted upon such first judgment shall be alienated or past away until after the expiration of the said twelve months, or after a new tvyal brought within the said space of twelve months, to the intent that restitution thereof may be made in case as aforesaid.” Prov. St. 1700-1701, c. 20; 1 Prov. Laws, (State ed.) 447, 448.

In 1726 the provisions of the original act were extended to the service of a copias when no attachment was made, and in 179.7 to writs of ejectment, error, review, to real actions, and generally to all civil actions, “ wherein the law does not require a separate summons to be left with the defendant.” St. 1797, c. 50, §§ l-r5. The provisions of this act have since been reenacted without substantial change until this day. Rev. Sts. c. 90, §§ 41, 45, 48; c. 92, §§ 3, 4, 6, 8; c. 99, § 17. Gen. Sts. c. 123, §§ 25, 28; c. 126, §§ 6-8', 10; c. 146, § 20. Pub. Sts. c. 161, §§ 31, 34; c. 164, §§ 6, 8,10; c. 187, § 21.

This right of review had been previously extended to judgments rendered by justices of the peace and all inferior courts. St. 1791, c. 17, § 3; re-enacted in Rev. Sts. c. 99, § 27. Gen. Sts. c. 146, § 24. Pub. Sts. c. 187, § 25.

In 1820 the right to review a judgment was enlarged by giving the court power.to issue a writ of review, even if the defendant was within the Commonwealth at the time of' service at his *87last and usual place of abode, provided he did not in fact have notice of the action, and applied for a review within a year after he first heard of it. St. 1820, c. 53. James v. Townsend, 104 Mass. 367. This act was re-enacted in Rev. Sts. c. 92, § 5; c. 99, c. §§ 18-20. Gen. Sts. c. 146, § 21. Pub. Sts. c. 187, § 22.

The Revised Statutes made a further provision in protection of the rights of a defendant in a real action who had not been personally served and against whom judgment had been rendered on a default in his absence, to wit, that if the judgment were reversed within a year the land should be restored. Rev. Sts. c. 92, § 9.

Without going more particularly into the statutes, it is enough to say that it has always been held in this Commonwealth that a judgment rendered on a default is binding on the defendant when service was made upon him personally. Matthewson v. Moulton, 135 Mass. 122. But if service was made at his last place of abode, or in any way other than by personal service, and he did not in fact have notice of the proceeding, it is not binding upon him. If provision for reopening the judgment is made by review or writ of error, his remedy is to have the judgment vacated by such a proceeding instituted directly for that purpose. Hendrick v. Whittemore, 105 Mass. 23. Finneran v. Leonard, 7 Allen, 54. If, however, the proceeding is not according to common law, so that error does not lie, the judgment may be attacked collaterally, and shown to be void for want of notice when invoked against the defendant. Smith v. Rice, 11 Mass. 507, 514. Cook v. Darling, 18 Pick. 393. Or if a judgment is rendered in another State against a citizen of this State, or in this State against a citizen of another State, it may be so attacked collaterally when suit is brought on it, because to compel him to have the judgment vacated by a writ of error, in which he must file a bond if he would obtain a stay of execution, is to impose a burden not warranted by the Fourteenth Amendment to the Constitution of the United States. Needham v. Thayer, 147 Mass. 536. And on this point generally see the exhaustive opinion of Judge Wells in Salem v. Eastern Railroad, 98 Mass. 431.

This doctrine that a defendant is not bound by a judgment rendered on default in his absence, based on a service other than personal service, is not peculiar to Massachusetts, but is of uni*88versai application; there is a difference in some States as to the remedy. In some jurisdictions the judgment will not be vacated if the defendant failed to receive notice through a false return of the sheriff, or an unauthorized appearance was made by an attorney, unless a suit on the sheriff’s bond, or a suit against the attorney, fails in fact to give him an adequate remedy. Walker v. Robbins, 14 How. 584. In Connecticut a bill in equity lies to enjoin the enforcement of a judgment so obtained, though no fraud can be imputed to the plaintiff if the time prescribed by statute for vacating the judgment has expired. Jeffery v. Fitch, 46 Conn. 601. In New York it has been held that even after the time prescribed by statute for vacating such a judgment has expired, the court has inherent power to set it aside if made in the absence of the defendant. Vilas v. Plattsburgh & Montreal Railroad, 123 N. Y. 440. And there are cases in the Supreme Court of the United States, and in this Commonwealth, indicating that judgments may be vacated after the term by exercise of the court’s inherent power independently of statute. Ex parte Crenshaw, 15 Pet. 119. Waters v. Stickney, 12 Allen, 1. Gale v. Nickerson, 144 Mass. 415. Stickney v. Davis, 17 Pick. 169.

But these cases all agree in this, that the judgment is not binding, certainly in the absence of an adequate remedy against the sheriff or the attorney who wrongfully appeared, and differ only as to what the remedy is. To that effect see Freer». Judg-' ments, (4th ed.) § 98, where many cases are collected.

It comes therefore to this: whatever service other than personal service has been heretofore allowed, a judgment rendered in the absence of the defendant, so served, has never been held to be final, that is, not subject to be directly reviewed or collaterally attacked; but it has always been held that a defendant is entitled to escape from such a judgment in some way, either by a proceeding instituted directly to vacate it, or by attacking it collaterally when it is sought to be enforced against him. In other words, it has always been held that he shall have an opportunity to be heard after the judgment on the merits of the original claim, if he did not in fact have an opportunity to be heard before the judgment was rendered.

The state of the common law in this connection at the time *89when the first settlers came to this country confirms this conclusion. Át that time no such thing was known as a judgment against a defendant before he entered an appearance in court, even if he had been personally served with process. Salem, v. Eastern Railroad, 98 Mass. 431, 451. James v. Townsend, 104 Mass. 367, 372. Story, J., in Picquet v. Swan, 5 Mason, 35, 48. At common law, if the defendant failed to obey the summons served on him, whether by personal service or by service at his house, or in real actions by posting notice on his land, the plaintiff’s remedy was, where the injury was not accompanied by force, to take out a writ or writs of judgment or pone, followed by writs of distringas, under which the property of the defendant was distrained to compel his appearance in court, and when all his property had been distrained for that purpose the power of the court was exhausted; in those cases where the injury was accompanied by force the remedy of the plaintiff was to take out a copias under which the defendant might be arrested; and, if he secreted himself so that he could not be taken, a series of writs could be taken out which resulted in his being declared an outlaw, at which point the power of the court was at an end. 3 Bl. Com. 279, 287. It was not until 1725, and by force of St. 12 Geo. I. c. 29, that judgment at law could be taken by default for non-appearance of the defendant; it is of interest to note that personal service of the writ was required by St. 12 Geo. I. c. 29, to enable the plaintiff to take judgment by default.

It appears that at that time courts of equity did enter a decree taking the bill pro confessa; but this was done only if the service of the subpoena had been made on the defendant personally, and had been followed by successive processes of contempt, including sequestration. 3 Bl. Com. 444. It was not until 1732, and by force of St. 5 Geo. II. c. 25, that a decree taking the bill pro confessa could be entered unless the subpoena had been personally served, and then only on proof that the defendant had absconded to avoid service.

The principle that a defendant has the right to be heard on review of a judgment,' if he did not have notice of the proceedings before judgment, is nothing more than the application to judgments rendered on a default based on service not personal, of the fundamental doctrine of the common law, which obtains *90in England as well as in America, that no judgment can be rendered affecting another’s rights of person or property without giving to that other an opportunity to be heard. “It is an essential principle of natural justice, that every man have an opportunity to be heard in a court of law, upon every question involving his rights or interests, before he is affected by any juridical decision of the question.” Commonwealth v. Cambridge, 4 Mass. 627. To the same effect, see Wells, J., in Salem v. Eastern Railroad, 98 Mass. 431,447, 450; Devens, J., in Shores v. Hooper, 153 Mass. 228, 230, 231. “In our courts of law, you cannot obtain a judgment against a party, without entering an appearance for him, so that it shall seem as if he had appeared. He either does- actually appear, or else you enter an appearance for him, according to the act of Parliament expressly made for that purpose; and made because it is considered an invariable maxim of law, that you cannot proceed against a party without his having the opportunity of being heard, and without his appearing in court, before a judgment shall be pronounced against him.” Bayley, B., in Capel v. Child, 2 Cr. & Jerv. 558, 579. See to the same effect Parke, B., in Bonaker v. Evans, 16 Q. B. 162, 171, 172, where many authorities are cited.

In the light of the well established general principle, that no judgment can be rendered against a man until he has in fact had an opportunity to be heard, and the equally well established application of that general principle, that a defendant has the right to be heard in review of a judgment rendered under a statute authorizing judgment against him to be entered in his absence, if he did not in fact have notice of the proceedings before the judgment was rendered, which principle has obtained since the first statute authorizing service of process at the last and usual place of abode of the defendant, and was a component part of that act, and which has been universally observed since then, the constitutional provisions in question must be construed to guarantee to every citizen the right to be heard before judgment against him becomes irrevocable ; and if the judgment on default is based on any service of process, other than personal service on the defendant, provision must be made giving to a defendant, who did not in fact have notice of the proceeding before judgment, an opportunity afterwards to have it reversed or to attack *91it collaterally, when it is set up against him. This act does not secure to those named in the application and notice as claiming adverse interests their constitutional right to be heard, and is, in my opinion, for that reason, unconstitutional and void.

But if personal servipe upon those named as defendants in the application and notice had been required, the act would have been unconstitutional and void because it undertakes to conclude those having an adverse interest, whether residents or non-residents, who are alleged not to be known to the applicant or the examiner, without making them parties defendant by name; the act provides that, though they be not named in the application or in the notice, they are made parties defendant by the insertion in the notice of the words “to all whom it may concern,” and their rights are extinguished by their non-appearance in answer to that notice.

It is a principle of our jurisprudence, brought to this country by our ancestors and recognized here since then, that no person is barred by judgment or decree in judicial proceedings according to the course of the common law, in which the plaintiff asserts rights of property adverse to his, unless he is named as a party defendant.

I have already shown that every defendant named must have notice of the proceeding before he can be finally and irrevocably concluded thereby ; the complement of that rule which, together with it, makes up the full measure of the vested rights of property in this connection guaranteed to each citizen by the Constitution, is the rule now under consideration, that no person is barred by a judgment or decree in a proceeding the effect of which is to strip him of vested rights of property, unless he is named as a defendant.

No principle could be introduced more dangerous to vested rights of property than the principle that this rule can be dispensed with in the discretion of the Legislature. If this rule is dispensed with, no sufficient incentive is left to the plaintiff to name as parties defendant those who have adverse interests; that is to say, those whose interests, if they are brought in, will lead them to do all in their power to defeat the object which the plaintiff seeks to obtain by bringing his suit. The only possible way of insuring to those having adverse interests an oppor*92trinity to be heard, is to require the plaintiff to name them as defendants under the penalty of their not being barred if not so named. If this penalty is removed, and a defendant is equally bound, whether named or not, there is not only no incentive to name as defendants those who claim an adverse interest, but the law has thereby offered to the plaintiff the greatest temptation not to name an adverse claimant if known, and not to use any diligence whatever to discover whether there are in fact persons who claim an interest adverse to his.

The effect of a judgment on a writ of right, and of a fine, mentioned in the opinion, are not instances conflicting with the universality of the proposition that no person not named therein can be barred by a judicial proceeding. In those cases the world was barred, including all claiming an adverse interest though not named in the proceeding. But that was the effect of the lapse of the year and the day; they were not barred by the judgment apart from the lapse of time; they were barred by the lapse of time after a judgment. In other words, the judgment was sufficient to start the running of time against them, and they are barred by the operation of the principle of the statute of limitations.

The reference made in the opinion of the majority of the court to the statute of limitations makes it necessary to state in passing that the registration act cannot be supported on the grounds on which the statute of'limitations quiets titles against all the world, or on any grounds deducible therefrom. It is unquestionably within the constitutional power of the Legislature to quiet the title to property by a statute of limitations. The principle of such a statute is that one, who is dispossessed of his property, must assert his ownership thereto by action within a specified time or be barred thereof; that is to say, cease to be such owner. But no statute was ever passed providing that an owner in possession of his property could be dispossessed thereof by any lapse of time, and no principle is, deducible from the statute of limitations, which can justify such a statute, or a statute providing that, without naming him as a defendant, or without giving him notice, a court can by decree alone, unaided by the subsequent lapse of time, transfer his property to another.

' But the main ground on which this provision of the act is *93sought to be upheld is that of necessity. It is said, “ If it does not satisfy the Constitution, a judicial proceeding to clear titles against all the world is hardly 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 claimants.” See p. 73. It is undoubtedly true that the chief end of a proceeding to clear titles is to get rid of the unknown, and that an unknown claim cannot be dealt with by bringing notice of the proceeding home to the claimant; and it is true that it follows from that that a title cannot be cleared by a judicial proceeding unaided by the lapse of time. But it does not follow that titles cannot be cleared. The lapse of time has been the means and the only means heretofore used under our jurisprudence to clear titles against unknown claimants; under our Constitution it is, in my opinion, the only means available therefor. But it is of importance that it is available, and therefore that the argument of necessity fails. It would be within the constitutional power of the Legislature to enact, that the effect of some such decree as is provided for in this act, when properly proclaimed and served, should have the effect to put the claimant in possession of the title so set up, and that if that possession continued unbroken, and the decree setting up the applicant’s title remained in force unmodified, for a specified time, all the world should be barred; if the opinion of the Supreme Court of Illinois in this connection (People v. Simon, 176 Ill. 165, 177, 178) is not to be construed as confined to the particular provisions of that act, it cannot be supported.

Such a requirement would practically enable any person to protect his rights of property by an examination of the records of the Court of Registration made during the specified term, while under this act it is beyond the power of a person to protect his property from the effect of a decree not subject to be reopened, and made in his absence without his knowledge. If he have an estate less than the fee, he can protect himself neither by registering his own title nor by an inspection of the records of the court. He can do nothing but trust to the chance that the applicant and the examiner may exercise sufficient care to discover his claim, will learn his true name and address, and *94that if his claim is discovered and the notice is properly addressed and mailed, it will reach him in time to enable him to appear in court before a decree has been rendered in his absence, which is beyond the power of any court to change when once it has been made. And if his original title is by prescription, he must trust to the intelligence and good faith of the applicant alone, for the examiner will not in his examination learn of such a title.

But there is an even more decisive answer to the argument of necessity, and that is this. The constitutional provision securing to the owner the right not to be deprived of his property except by due process of law, speaks to each citizen directly and personally. It is no answer when a person complains that he had no notice of the proceeding, in which the decree was made transferring his property to another, to,say to him that ninety-nine other persons had notice, and that in ninety-nine cases out of a hundred a person would have notice. This provision is not a glittering generality to be explained away in any such manner to a man whose property has been divested by a decree made in his absence. It is a constitutional guarantee to each citizen; and no citizen can be deprived of the security given by the Constitution to liis rights of property by any counterbalancing of the benefits derived by the multitude against the evil suffered by him; it is a constitutional guarantee to each citizen that his property shall not be transferred by the judgment of a court to another without his having had in fact an opportunity to be heard, no matter what the consequences may be. If it means anything short of that, it is not a constitutional guarantee; it is but a rule which may mean something or nothing, as the Legislature in its discretion may decide.

Moreover, this is a constitutional guarantee made to each and every citizen equally and alike. It is no fault of a person residing in the Commonwealth, who has an estate in the land covered by the application, that the applicant and the examiner did not know of his claim, if they did not know of it; much less if they allege that they did not know of it, when, by the exercise of due care they would have known' of it. It is strange, indeed, if a discrimination can be made between two residents within the Commonwealth, as to their constitutional right to be heard *95before an irrevocable judgment is made concluding their rights of property ; and that that discrimination should finally depend on the negligence and good faith of their opponent, the applicant, and of the court examiner, and, as has been shown, in case of titles by prescription, on that of the applicant alone. And yet that is the conclusion to which the court has come; by the opinion of the court, the negligence of the applicant, in not discovering the claim of a resident to an interest in the land in question, precludes him from having the same right to be heard in defence of his rights of property in 'that land which his neighbor has, whose claim was discovered; in the' first case he is not named as a defendant, and that service of process which is required in actions in personam need not be made on him; in the latter case the defendant is not barred unless such service of process as is required by actions in personam has been made.

There is no precedent for holding that the rights of persons not named as defendants are barred in any proceeding other than a proceeding in rem, and, for the reasons which I have given, I am of opinion that.the constitutional rights of property guaranteed to each and every citizen equally and alike, require that that rule should not be abrogated.

To conclude this part of the discussion, I am of opinion that unless the proceeding under the registration act is to be supported as a proceeding in rem, it is without precedent, and is contrary to the rule heretofore universally recognized without any exception wherever the common law of England prevails, that no party is barred unless he in fact had an opportunity to be heard; Commonwealth v. Cambridge, 4 Mass. 627; Salem v. Eastern Railroad, 98 Mass. 431; Shores v. Hooper, 153 Mass. 228, 230; Capel v. Child, 2 Cr. & J. 558 ; Bonaker v. Evans, 16 Q. B. 162 ; and I am of opinion that (unless the application is a proceeding in rem) a decree under that act, so far as it affects either the rights of defendants named and not personally served, or absent persons not named, is not due process of law.

I come now to the consideration of the constitutionality of the act as a proceeding in rem.

The act professes to be drawn on the theory that it authorizes a proceeding in rem, and it is plain that the service of the notice prescribed was taken from that used in proceedings in the Pro*96bate Courts; it is also plain that there was no attempt to secure a compliance with the requirements of an action in personam, either with respect to the service to be made upon those named as defendants, or to the necessity of joining as parties defendant all whom the plaintiff wished to have concluded by the decree.

Petitions for probate of a will afford no ground for holding that the application under the act is a proceeding in rem. Where there is a fund in court for distribution, such as the proceeds of a bankrupt estate or of the property of an insolvent corporation, which is in process of being wound up, a general notice to whom it may concern served by publication is sufficient to give the court jurisdiction; and it is sufficient because in such cases the object of the proceeding is not to divest an owner of a title which he has, but to entitle him to share in the fund by proving his right; petitions for the probate of a will (Bonnemort v. Gill, 167 Mass. 338) and inquests of office to establish an escheat (Hamilton v. Brown, 161 U. S. 256) belong to this class. No rights of property guaranteed by the Constitution have vested in the heir which the probate of the will or the inquést of office divests; the purpose of such proceedings is to ^ascertain whether such rights shall or shall not vest in the heir. Hamilton v. Brown, 161 U. S. 256, 268.

More than that, it has never been decided that a decree admitting a will to probate was binding on all the world, or that a statute could be constitutionally passed making it binding on all the world. In Bonnemort v. Gill, the only point decided was that notice by publication gave the court jurisdiction to proceed with the petition for probate of the will, but it is perfectly well settled that the decree of the Probate Court in that proceeding can be vacated on application at any time. Waters v. Stickney, 12 Allen, 1. Gale v. Nickerson, 144 Mass. 415. In Hamilton v. Brown, 161 U. S. 256, it was decided that a statute of Texas was not in violation of the Fourteenth Amendment, which made the decree of escheat therein provided for binding on all the world after notice similar to that provided for by the registration act under discussion. This statute did not go so far as the registration act; the statute directed that the land covered by the decree of escheat should be sold, and provided that the proceeds of the sale should be paid to any person *97who should subsequently prove himself to be the heir. Paseh. Dig. art. 3671. Hamilton v. Brown, 161 U. S. 256, 264. That fact was mentioned in the opinion, but does not seem to have been relied upon. The opinion lays down the broad proposition that the decree of escheat is conclusive on the ground that “ if such proceedings are had, after actual notice by service of summons to all known claimants, and constructive notice by publication to all possible claimants who are unknown, the final determination of the right of succession, either among private persons, as in the ordinary administration of estates, or between all persons and the State, as by inquest of office or similar process to determine whether the estate has escheated to the public, is due process of law.” Hamilton v. Brown, 161 U. S. 256, 275, so far as that reasoning goes, is open to the criticism (1) that the right of succession among private persons in the ordinary-administration of estates is not finally determined by a decree of the Probate Court; such a" decree can be vacated at any time; Waters v. Stickney, 12 Allen, 1; Gale v. Nickerson, 144 Mass. 415; and (2) that the right of succession as between all persons and the State is not finally determined by an inquest of office; office found in favor of the king did not result in a judgment binding on all the world, it merely entitled him to the possession of the res; it did not determine as against the world his, or anybody’s, right of property in the res; 3 Bl. Com. 259, 260; but the true owner could “ avoid the possession of the crown acquired by the finding of such office ” by petition of right disclosing new facts not found by the office, or by his monstrans de droit relying on the facts as found, or by traversing the facts found in favor of the king on leave obtained from the Court of Chancery under its common law jurisdiction and from the Petty Bag. Stuart, V. C., in In re Parry, L. R. 2 Eq. 95, 97. 3 Bl. Com. 258. Ex parte Webster, 6 Ves. 809. Ex parte Gwydir, 4 Madd. 281. 16 Vin. Abr. 86, pl. 1.

Blackstone’s qualification (3 Bl. Com. 260) that an owner has “ for the most part ” a right to traverse the facts is inaccurate ; and it is true, as I have stated, that the owner has the right in every case to traverse the facts found by the inquisition. It appears from an inspection of Sir Henry Finch’s Discourse on Law, 324, which Blackstone cites for the qualification, that if *98the office was found for the king on a judgment of another court, whereby the owner was attainted of treason, he could not attack that judgment collaterally in a traverse to the inquisition; that in no way qualifies the right of a person to traverse the facts established by office found alone. So far, therefore, as the decision in Hamilton v. Brown rests on the analogy of a final determination of the right of succession among private persons or between all persons and the State, it cannot be supported. But the decision was also put on the further ground that “ when a man dies, the Legislature is under no constitutional obligation to leave the title to his property, real or personal, in abeyance for an indefinite time.” This statement in the opinion, taken in connection with the provision of the statute, that the petition to have the escheat established could only be filed “ when no letters testamentary or of administration appear to have beeh granted” in the county where his estate would be administered, (Pasch. Dig. art. 3658, Hamilton v. Brown, 161 U. S. 256, 265,) puts the case on the same footing as a fund in court, especially when it was stated in an earlier part of the opinion that “ the whole object in proceedings for escheat, as in proceedings of administration, is to ascertain who are entitled to the estate of a deceased person.” Hamilton v. Brown, 161 U. S. 256, 268. When one dies seised of land and no administration is taken out on his estate, it is plain that his estate is in the same position as a fund in court; the estate must be handed over to somebody; a general notice to all to come in and prove their right is sufficient, especially as the only practical effect is to change the land into money, it being expressly provided that any one entitled to the land shall be entitled on application to the proceeds derived by the State from the sale thereof. Anything short of that might well result in large tracts of land, in such a State as Texas, remaining vacant to the detriment of the public welfare. In the petition for escheat in Hamilton v. Brown it is alleged that on the death of Hamilton, who died seised, “ there are no tenants upon said tract of land, and no person is either in actual or constructive possession of said tract of land or any part thereof, nor is there any person, claiming the estate in and to said tract of land, known to petitioner.”