by John Marshall Harlan

“ The decree, as we have seen, passed the title without any conveyance from the non-resident defendants; for, by its terms, whatever title they held was vested in the complainant Deane. According to the settled principles of law, the plaintiffs are thereby estopped from asserting, in this collateral proceeding, any interest in the premises in controversy adverse to that of the defendants. It is not subject to collateral attack, because there is nothing on the face of the record which shows any want of jurisdiction in the court that rendered it. ”

“ It originated with the representatives in congress from Missouri, whose avowed purpose was to protect the interests of their immediate constituents. The necessity of this act arose from a then recent opinion of the commissioner of the general land office, that the legal title to the land within the Austin claim was still in the United States. In order to quiet the fears of those 'who have been in possession for half a century, claiming the land adversely against everybody, as well as the United States,' the act of 1874 was passed. ”

“ Upon the supposition that Austin took nothing by the grant of 1802, and at most had but an equitable interest in the land capable of being enlarged into a complete title in the mode prescribed by the acts of congress, the plaintiffs claim that the rights of the United States were unaffected by any proceedings between private persons, involving Austin's title ”

“ Upon such affidavit being filed, the court, or the clerk in vacation, was authorized to make an order, directed to such non-residents, notifying them of the commencement of the suit, stating the substance of the allegations and prayer of the bill, and requiring them to appear on a day to be therein named (allowing sufficient time for publication) and answer the same, or the bill will be taken as confessed. ”

“ But it is contended that the defendants cannot claim title under the before-mentioned proceedings in the courts of the territory and state of Missouri, and thereby defeat the rights of the plaintiffs under Austin's deed of 1820, because (1) it was not competent for the bank to have Austin's interest sold under execution on a judgment, while it held a mortgage on part of the premises sold, and thus cut off his right of redemption ”

“ And referring to the act of March 7, 1835, regulating the practice in chancery, he insists that, while a mode is therein prescribed for the service of process upon resident and non-resident defendants, no provision is made for service on non-resident minors. It is not questioned that, under the laws of Missouri, adult non-resident defendants in equity suits concerning real estate may be proceeded against by publication in such cases as that instituted by Deane in 1836 ”