David Josiah Brewer

“ The question is not what a court of equity, by virtue of its general powers, and in h e absence of a statute, might do, but it is, what jurisdiction has a state over titles to real estate within its limits, and what jurisdiction may it give by statute to its own courts to determine the validity and extent of the claims of non-residents to such real estate? If a state has no power to bring a non-resident into its courts for any purposes by publication, it is impotent to perfect the titles of real estate within its limits held by its own citizens ”

“ Kansas is supreme, except so far as its power and authority are limited by the constitution and laws of United States; and within the constitution and laws of the United States the courts of Kansas may have all the jurisdiction over all persons and things within the state which the constitution and laws of Kansas may give to them ”

“ The propositions are that an action to quiet title is a suit in equity, that equity acts upon the person, and that the person is not brought into court by service by publication alone. While these propositions are doubtless correct as statements of the general rules respecting bills to quiet title, and proceedings in courts of equity, they are not applicable or controlling here. ”

“ Mortgage liens, mechanics' liens, materialmen's liens, and other liens are foreclosed against non-resident defendants upon service by publication only. Lands of nonresident defendants are attached and sold to pay their debts; and, indeed, almost any kind of action may be instituted and maintained against non-residents to the extent of any interest in property which they may have in Kansas; and the jurisdiction to hear and determine in this kind of cases may be obtained wholly and entirely by publication. ”

“ Has the state any power, through the legislature and the courts, or by any other means or instrumentalities, to dispose of or control property in the state belonging to non-resident owners out of the state, where such non-resident owners will not volun tarily surrender jurisdiction of their persons to the state, or to the courts of the state, and where the most urgent public policy and justice require that the state and its courts should assume jurisdiction over such property? Power of this kind has always been exercised, not only in Kansas, but in all the other states. ”

“ The purchaser at such sales is authorized to institute proceedings by a public notice in some newspaper, describing the land, stating the authority under which it was sold, and 'calling on all persons who can set up any right to the lands so purchased, in consequence of any informality or any irregularity or illegality connected with the sale, to show cause why the sale so made should not be confirmed.' In case no one appears to contest the regularity of the sale, the court is required to confirm it, on finding certain facts to exist. ”

“ A prudent man will not purchase a lawsuit, or risk the loss of his money and labor upon a litigious title. The act now under consideration was intended to remedy this evil. It is in substance a bill of peace. The jurisdiction of the court over the controversy is founded on the presence of the property ”

“ Nothing inconsistent with this doctrine was decided in Hart v. Sansom, supra. The question there was as to the effect of a judgment. That judgment was rendered upon a petition in ejectment against one Wilkerson. Besides the allegations in the petition to sustain the ejectment against Wilkerson were allegations that other defendants named had executed deeds, which were described, which were clouds upon plaintiffs' title; and, in addition, an allegation that the defendant Hart set up some pretended claim of title to the land. This was the only averment connecting him with the controversy. ”