John McLean

“ Such being the presumption of law, what evidence is introduced by Reid to destroy that presumption? The 'Owners,' &c. are not proved ever to have been in possession, nor ever to have held or claimed any title. What semblance of right or virtue, then, is there is these judgments, unaided by other proof, that we should be dispossessed of our property, and deprived of our home. We humbly conceive there is none. ”

“ Esty, 7 Wend. 148, C. J. Savage says: 'It is a cardinal principle, that a man shall not be divested of his property but by his own acts, or the operation of law; and where proceedings are instituted to change the title to real estate by operation of law, the requirement of the law under which the proceedings are had must be strictly pursued.' And 'when laws are to be taken under a statute authority, in derogation of the common law, every requisite of the statute having the semblance of benefit to the owner must be strictly complied with.' Sharp v. ”

“ That if it is not proved to the jury that the judgments of Johnston and Brigham were rendered against some person or persons, body corporate or association of individuals, whose existence has been proved to exist at the commencement of the suit, or at the rendition of the judgments, they must find for the defendant.
6th. That a judgment against a dead person, or a person who has no existence whatever, is no judgment at all in contemplation of law, and a sale under such a judgment is void. ”

“ The broad doctrine, that the judgment of a superior court is void if the record do not show jurisdiction, is denied; but it is not denied that the judgment of a superior court in summary proceedings, where it exercises an extraordinary power under a special statute prescribing its course, is void, if the record do not show jurisdiction. ”

“ The District Court erred in overruling the evidence offered by the defendant, to prove fraud in the judgments, executions, sheriff's sale, and sheriff's deed.
When a judgment is brought collaterally before the court as evidence, it may be shown to be void upon its face by a want of notice to the person against whom judgment was entered, or for fraud. ”

“ When we adopt the common law, or portions of it, we also adopt the established adjudications upon them. It may be true that the common law of England is not, in all respects, to be received as the law of America. ”

“ By the act under which the suits were instituted, no other designation of the defendants was required than 'Owners of the Half-breed Lands lying in Lee County.' These suits were not a proceeding in rem against the land, but were in personam against the owners of it. Whether they all resided within the Territory or not does not appear, nor is it a matter of any importance. No person is required to answer in a suit on whom process has not been served, or whose property has not been attached. ”

“ Hoyt, 3 Wheat. 246, under the twenty-fifth section of the Judiciary Act of 1789, giving appellate jurisdiction to this court from the final judgment of the highest State court, 'the writ of error may be directed to any court in which the record and judgment on which it is to act may be found, and if the record has been remitted by the highest court and to another court of the State, it may be brought by the writ of error from that court.' In principle, that case is analogous to the one under consideration. ”

“ Territories are, then, nothing but political corporations, exercising such powers alone as are conferred by the charter of incorporation, or act organizing them. We examine this charter or act, and find that the Ordinance of 1787 is adopted as a part of it ”

“ It was, therefore, indispensable either to have shown title in those 'Owners,' deduced from some common source, or to have connected Webster with the company, by the name of 'Owners,' &c. Neither was done; and we conceive this to be fatal to Reid's recovery. A special statute, incorporating certain persons for purposes of private advantage or emolument, does not bind (say the courts) any person named therein, unless he consent thereto. ”

“ We have no connection with these assumed 'Owners,' &c. We claim by distinct title; and unless Reid shows their legal existence, and title in them from some common source, or connects us with them, he cannot recover from us, or affect our interests.
It was also necessary for Reid to have shown on the trial, that there was eight weeks' notice of the commencement of these suits published in the Iowa Territorial Gazette, previously to the entry of the judgments. This is a distinct and substantive requirement of the law. Without such published notice, the court had no power to render judgment. ”

“ It directly gives to them a rate of interest upon their judgments double what the laws of Iowa give to any other citizen. No reason is assigned, and no necessity shown to exist, for awarding such a preference ”

“ In this case there was no personal notice, nor an attachment or other proceeding against the land, until after the judgments. The judgments, therefore, are nullities, and did not authorize the executions on which the land was sold. ”