Ware v. Easton

In the year 1883 the defendant, having a tax-title of the land in dispute, brought an action to determine adverse claims thereto, under Gen. St. 1878, c. 75, § 2, as amended by Laws 1881, Ex. Sess. c. 81, and named, as parties defendants, “Benjamin Keenan, E. Daniels, also all other persons or parties unknown, claiming any right, title, estate, lien, or interest in the real estate described in the complaint on file in the above entitled action, and their unknown .heirs;” and caused the summons therein, as so entitled, to be published as in ordinary cases of non-resident defendants, together with a notice of lis pendens, containing the proper description of the land, which notice had been duly recorded. *181Neither Keenan nor Daniels, the only defendants who were specifically designated by name, claimed under the patent title, or are shown by the records to have had any interest in the-land, except by virtue of tax-sales. The land was entered at the United States land-office in the year 1856, by Benjamin Homan; who received a patent therefor October 31, 1857. After the entry, and prior to the patent, the land was certified for taxation as having been entered by Benjamin Human, and the certificate was duly filed in the office of the register of deeds of the proper county. The dates and description in the certificate sufficiently identify the purchaser of this land with the patentee, so that,the variance or mistake in the spelling is not material. The patent was not recorded until after defendant recovered judgment in the action referred to, which was in 1883. In 1863 the patentee Homan conveyed the premises to one Woods, and in 1879 the title acquired by him passed, through mesne conveyances, to one Bragg, who held the original title when this action was brought, and the plaintiff derives title from him. But the patent and all the conveyances of the patent title were not recorded until 1885.

It is claimed that the summons was defective in not naming Ho-man, the patentee of the land, as one of the defendants; and we think this objection well taken. In so far as the records disclosed, he was the owner of the government title. The defendant was bound to take notice that Homan was the patentee of the land, as well from the government records as those of the county. The important provisions of this statute, as a means of notice to the unknown claimants, are the designation of the names of interested parties who are known and those wjrp appear such by the records, together with the publication of the notice of lis pendens, containing a description of the land, and the record of the same. If the land appears to have been entered by Homan, and his grantees, if any, are unknown and not disclosed by the records, the most effectual notice to those claiming under him would be to name him, in connection with the general designation of such unknown claimants. The statute must be strictly construed and followed, and it is enough that it requires such parties to be specially named. If any one appearing by the record to be the *182owner of the patent title under the original owner is designated, of course it would not be necessary to name any preceding owner under whom he claimed; but he who appears to be the owner of record must be named, unless- the actual holder of the title can be discovered and named; that is to say, if it be desired to bind unknown parties claiming some right or interest derived from or under the original patentee of the United States. The same rule would apply, mutatis-mutandis, to parties claiming a separate title under the state through tax-sales. The statute was not complied with in the case under consideration here. The notice was insufficient to bind Bragg,, the owner of the patent title at that time, and the judgment is void, as to him and those claiming under him.

Judgment affirmed.