Hussey v. Smith

APPEAL from the Supreme Court of the Territory of Utah.

The act of March 2, 1867, entitled 'An Act for the relief of the inhabitants of cities and towns upon the public lands,' approved March 2, 1867 (14 Stat. 541), provides: Whenever any portion of the public lands of the United States have been or shall be settled upon and occupied as a town site, and therefore not subject to an entry under the agricultural pre-emption laws, it shall be lawful, in case such town shall be incorporated, for the corporate authorities thereof, and if not incorporated, for the judge of the county court for the county in which such town may be situated, to enter at the proper land-office and at the minimum price, the land so settled and occupied, in trust for the several use and benefit of the occupants thereof, according to their respective interests, the execution of which trust, as to the disposal of the lots in such town and the proceeds of the sales thereof, to be conducted under such rules and regulations as may be prescribed by the legislative authority of the State or Territory in which the same may be situated, &c.

In accordance with this act the legislature of Utah, by an act approved Feb. 17, 1869, made the necessary 'rules and regulations;' and in November, 1871, Daniel Wells, as mayor of the city of Salt Lake, entered certain lands in that Territory as 'the town site' of said city, wherein was included the lot which is in controversy in this suit. On the thirtieth day of September, 1868, Job Smith, then and for many years prior thereto in possession of the lot, and the owner thereof, subject only to the paramount title of the United States, executed to one Bernhisel a mortgage of all 'his right of possession, claim, and interest in and to the lot,' to secure the payment of a certain sum of money in one year thereafter. In September, 1869, Smith executed another mortgage of the lot to one Linforth, to secure the sum of $1,058.43, payable twelve months from that date. On the third day of December, 1870, Bernhisel filed his bill of foreclosure in the District Court of the third judicial district of that Territory against Smith and Linforth. The process sued out was served by the marshal of the United States for the Territory. A decree was rendered by default in favor of Bernhisel. Pursuant thereto the marshal sold the lot, and on the thirteenth day of March, 1871, the court, on his report of his doings, approved and confirmed the sale to William Jennings, to whom the marshal made a deed for the lot. Jennings conveyed it, March 9, 1872, to Hussey, a resident of the State of Ohio.

Smith remained in possession of the lot, and Dec. 11, 1872, filed in the Probate Court his written statement, pursuant to said act of the Territory, claiming that he, under its provisions, was entitled to a deed, and praying that he be adjudged to be the lawful owner. Hussey filed a similar statement, which was amended May 24, 1872.

It was adjudged that Smith was entitled to a deed from the mayor of the city of Salt Lake, and that a certificate of title should issue to him therefor. To the same effect was the judgment of the District Court and that of the Supreme Court. Hussey then appealed here.

Mr. Samuel A. Merritt in support of the decree below.

1. Hussey, being a non-resident of Salt Lake City, was not one of the beneficiaries of the legislation of Congress. Long before and at the time the lands were entered 'in trust for the several use and benefit of the occupants thereof,' Smith was in the actual occupation of the lot, and has since remained in possession of it. He is, therefore, justly entitled to the benefits which Congress designed to bestow.

2. The decree by default in the foreclosure suit was a nullity. The service of process by the marshal of the United States conferred upon the court no jurisdiction of the defendants. He can only act in cases where the United States is concerned (Clinton et al. v. Englebrecht, 3 Wall. 434), and his sale of the lot under the decree passed no title.

Mr. Z. Snow and Mr. E. D. Hoge, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.