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them none were more important than those determining the manner in which the jurisdiction of the courts could be acquired. This necessarily depended upon the nature of the subject upon which the judicial power was called to act. If it was invoked against the person, to enforce a liability, the personal citation of the defendant or his voluntary appearance was required. If it was called into exercise with reference to real property by proceedings in rem, or of that nature, a different mode of procedure was usually necessary, such as a seizure of the property, with notice, by publication or otherwise, to parties having interests which might be affected. The rules governing this matter in these and other cases were a part of the general law of the land, established in our jurisprudence for the protection of rights of persons and property against oppression and spoliation. And when the courts of the United States were invested with jurisdiction over controversies between citizens of different States, it was expected that these rules would be applied for the security and protection of the non-resident citizen. The constitutional provision owed its existence to the impression that State prejudices and attachments might sometimes affect injuriously the regular administration of justice in the State courts. And the law of Congress which was passed to give effect to the provision, made it optional with the non-resident citizen to require a suit against him, when commenced in a State court, to be transferred to a Federal court. This power of removal would be of little value, and the constitutional provision would be practically defeated, if the ordinary rules established by the general law for acquiring jurisdiction in such cases. could be thwarted by State legislation or the decision of the local courts. In some instances the States have provided for personal judgments against non-residents without personal citation, upon a mere constructive service of process by publication; but the Federal courts have not hesitated to hold such judgments invalid. Pennoyer v. Neff, 96 U. S. 744. So, on the other hand, if the local courts should hold that certain conditions must be performed before jurisdiction is obtained, and thus defeat rights of non-resident citizens acquired when a. different ruling prevailed, the Federal courts would be delinquent. in duty if they followed the later decision.
If these views be applied to the present case there will be little difficulty in answering the questions which appear to have embarrassed the judges below. The statute of Wisconsin provides for the sale of the real estate of a lunatic to pay his debts when his personal property is insufficient for that purpose, and points out the steps which his guardian must take to obtain a license to make the sale. It is admitted that these steps were taken for the sale in question, except that the order of the county court to show cause why the license to sell should not be granted, issued upon filing the petition, was not published for four successive weeks before the petition was heard and the license granted. The statute on this subject says, in its fourth section, that “every such order to show cause shall be published at least four successive weeks in such newspaper as the court shall order, and a copy thereof shall be served personally on all persons interested in the estate and residing in the county in which such application is made, at least fourteen days before the day therein appointed for showing cause; provided however, if all persons interested in the estate shall signify in writing their assent to such — sale the notice may be dispensed with.” And the sixth section provides that "the judge of the county court, at the time and place appointed in said order, or at such other time as the hearing shall be adjourned to, upon proof of the due service or publication of a copy of the order, or upon filing the consent in writing to such sale, of all persons interested, shall proceed to the hearing of such petition, and if such consent be not filed, shall hear and examine the allegations and proofs of the petitioner and of all persons interested in the estate who shall think proper to oppose the application.”
It is apparent from these sections that the publication of notice of the hearing is only intended for the protection of parties having adversary interests in the property, and is not essential to the jurisdiction of the court. It may be dispensed with if the parties having such interests consent to the sale. The consent could not be signed by the lunatic, for he, by his condition, would be incapable of giving a consent, and yet upon the others' consent, the court could proceed to act without notice to him.
Nor, indeed, was there any reason why publication of notice should be made for other parties than those who beld adversary interests. The lunatic could not be affected by such publication any more than by his consent. The application of the guardian to the county court was required by the law only as a ubeck against any improvident action by him. There was nothing in the nature of the proceedings which required a notice of any kind, so far as the rights of the lunatic were concerned. The law would have been free from objection had it simply authorized, upon the consent of the court, a sale of the lunatic's property for the payment of his debts. The authority of the court in that case, as in this, would have existed to license the sale whenever it appeared that the personal estate of the lunatic was insufficient to pay his debts, and that a sale of his real property was necessary for that purpose.
There is no charge of fraud in the action of the guardian, nor is it suggested that the property sold did not bring a fair price. The simple question is whether, as against the lunatic, the license to sell was invalid for insufficient publication of notice of the hearing, the same being, as already stated, required only for the protection of other parties interested in the estate. The decision of this court in Grignon's Lessee v. Astor, to which we have already referred, would seem to be decisive on this point. Indeed, it goes beyond what is required for the affirmance of the judgment here. That was a case of an administrator's sale under a statute in force in the Territory of Wisconsin, which provided that the county court, previous to passing upon the presentation made by the petition of an executor, administrator, or guardian for license to sell the property in his hands belonging to the deceased or his ward, should order due notice to be given to all parties concerned or their guardians, who did not signify their assent to the sale, to show cause ai such time and place as should be appointed why the license should not be granted. But in the order granting the license, it did not appear that notice had been given as thus required, and various other omissions were mentioned as impairing its validity. This court, however, held that no other requisites to the jurisdiction of the county court were prescribed by the statute than the death of the intestate, the insufficiency
of his personal estate to pay his debts, and a representation of these facts to the county court where he dwelt or his real estate was situated ; that the decision of the county court upon the facts was the exercise of the jurisdiction which the representation conferred ; that any irregularities or errors in the decision were matters to be corrected by an appellate court; and that the decision could not be collaterally attacked by reason of them. The court observed, in substance, that it was not necessary that the record should disclose the contents of all the papers before the county court, or its action in preliminary matters; that it was sufficient to call its powers into exercise that the petition stated the facts upon the existence of which the law authorized the sale; that the granting of the license was an adjudication that such facts existed ; and that a purchaser was not bound to look beyond the decree. The doctrine thus stated has ever since been adhered to by this court in like cases, and in 1865, in Comstock v. Crawford, which arose upon a similar statute in the same Territory, that decision was followed. 3 Wall. 396. Its maintenance was held to be essential to the security of numerous estates in Wisconsin, where it is said many defects are found in the records of the proceedings of the probate courts in the early period of her history. It was adopted for many years by her courts after she ceased to be a territory and became a State of the Union. It was well fitted for the repose of titles. Whether the reasoning of this court in other cases would not lead to some modification of its doctrine it is unnecessary to consider. As already intimated, there is no occasion to go to the full extent of the doctrine for the disposition of the present case. Here no parties claiming interests adverse to those of the lunatic are objecting to the license to sell, granted on his behalf and at his request through his guardian.
In Mohr v. Tulip, the Supreme Court of Wisconsin overlooked the distinction between the position of the lunatic, who was in fact the applicant through his representative, and that of parties having adversary interests in the property. He can no more object to the sale of his property for want of notice to them, if the provisions of law intended for his protection were followed, than a plaintiff in a personal action could object to a
sale upon his own judgment on the ground that the latter was prematurely entered. The object of notice or citation in all legal proceedings is to afford to parties having separate or adverse interests an opportunity to be heard. It is not required for the protection of the applicant or suitor.
The statute declared that upon the existence of certain facts the sale of the lunatic's estate might be made, and when these appeared in the petition of the guardian, the court had jurisdiction to act, so far as liis rights were concerned, as fully so as if the statute had so declared in terms, whatever may be the effect of its proceedings upon the interests of parties not properly brought before the court. We see no reason, therefore, so far as his interests are affected, to depart from the doctrine of Grignon': Lessee v. Astor.
GUNTON v. CARROLL.
A. and B. in November, 1846, entered into an agreement under seal, providing
for the settlement of long standing and disputed accounts. A balance from B. to A. was ascertained and the mode of payment and security agreed upon. A. released property of B. from the lien of judgments. B. among other things stipulated that he would obtain partition of certain lands wherein he had an undivided interest, and convey in fee the part assigned to him in severalty to A. at such price as should be adjudged by three appraisers, one to be appointed by A., one by B. and one by the other two. Such price to be credited on the judgments held by A. against B. and that the latter would give good security for the balance remaining due. B. died in 1819. There was no par. tition until 1806, when it was effected by his devisees, a fact not known to A. until 1872. They have made to A, no conveyance of the part of said lands assigned to them in severalty. A. filed his bill in 1876, alleging that he had performed all the stipulations on his part to be performed, and that $40,000 of the original debt with accruing interest remains unpaid, and praying for such a conveyance, for the ascertainment of the balance under the order of the court and for general relief. The devisees demurred. Held, 1. That upon the case made by the bill, A's remedy was not barred by the lapse of time. 2. That A. having under the agreement parted with rights, and B. received value, the consideration of which was in part the stipulation concerning the lands, the agreement for the conveyance can be specifically enforced and the court will, if it be necessary, provide a mode for ascertaining the value of the lands.