Romig v. Gillett/Opinion of the Court
The supreme court of Oklahoma was of opinion that the affidavit for service by publication was wholly insufficient in that it alleged the nonresidence of defendants simply upon information and belief, and not positively; that being so insufficient the defendant Myrtle Gillett was not brought into court, and the Judgment and all subsequent proceedings were, as to her, absolutely void. On the other hand, it is contended by the appellants that a separate ground for service by publication is 'where the plaintiff, with due diligence, is unable to make service of summons . . . within the territory;' that the affidavit for publication stated positively such inability; that, therefore, it was strictly within the statute, and authorized the publication of notice; that the publication was duly made, the defendants were thereby brought into court, and the judgment and all subsequent proceedings were regular and valid. It may well be doubted whether this contention of appellants can be sustained, at least in cases like this of direct, and not collateral, attack, even if the inability to obtain personal service by the exercise of due diligence is a distinctive ground for service by publication. It would seem that the facts tending to show such diligence should be disclosed, and that an affidavit merely alleging inability was one of a conclusion of law, and not of facts. McDonald v. Cooper, 32 Fed. 745; Carleton v. Carleton, 85 N. Y. 313; McCracken v. Flanagan, 127 N. Y. 493, 28 N. E. 385; Ricketson v. Richardson, 26 Cal. 149; Braly v. Seaman, 30 Cal. 610; Kahn v. Matthai, 115 Cal. 689, 47 Pac. 698;Little v. Chambers, 27 Iowa, 522; Thompson v. Shiawassee County Circuit Judge, 54 Mich. 236, 19 N. W. 967; Alderson v. Marshall, 7 Mont. 288, 16 Pac. 576. Nor is this inability shown by the mere fact that a summons issued to the sheriff of the county in which the land is situated is returned not served, for in cases of this kind, by § 3934, a summons can be issued to and served in any county of the territory.

But while the affidavit for publication may have been insufficient, we are unable to concur with the supreme court of Oklahoma in its conclusions. A publication of notice was in fact made, and a publication based upon an affidavit which, however defective it may have been, was intended to be in compliance with the statute. It was approved by the court, which upon it rendered a decree of foreclosure, which was executed by the proper officers in the proper way. By virtue of the proceedings the mortgagee was put into possession,-a possession which he transferred to the appellant Harding. Under those circumstances, what right has the appellee, a grantee from the mortgagor? The foreclosure was a proceeding in equity, although its various steps were prescribed by statute. Equitable principles must control the measure of relief. Even if the publication had been founded upon an affidavit perfect in form, and the decree and all proceedings had been in strict conformity to the statute, yet, by § 3955, the defendant would be let in to defend, upon compliance with certain conditions.

Assuming that that section is not fully applicable because of the defect in the affidavit, yet the appellee comes into a court of equity seeking relief against the foreclosure of a mortgage. In such a case there are almost always certain conditions of relief. If the mortgage be valid the rights of the mortgagee and those claiming under him are to be protected. Generally, such rights are protected by requiring payment of the mortgage debt, and granting a right of redemption. It is true that this right of redemption is a favored right. Russell v. Southard, 12 How. 139, 13 L. ed. 927; Villa v. Rodriguez, 12 Wall. 323, 20 L. ed. 406; Bigler v. Waller, 14 Wall. 297, 20 L. ed. 891; Noyes v. hall, 97 U.S. 34, 24 L. ed. 909; Shillaber v. Robinson, 97 U.S. 68, 24 L. ed. 967. But it is only a right of redemption which in this case and under the facts disclosed the appellee is entitled to. She does not pretend in her affidavit that the mortgage was invalid, or that it had been paid. She claims by a deed subsequent to the mortgage, and simply insists that she has not had her day in court, and therefore her rights, which, so far as appears, are only the rights of redemption, have not been cut off. Harding, as the grantee of the purchaser at the foreclosure sale, stands in the shoes of the mortgage. Bryan v. Brasius, 162 U.S. 415, 40 L. ed. 1022, 16 Sup. Ct. Rep. 803. As shown by the opinion in that case and cases cited therein, a mortgagee who enters into possession, not forcibly, but peacefully and under the authority of a foreclosure proceeding, cannot be dispossessed by the mortgagor, or one claiming under him, so long as the mortgage remains unpaid.

Under § 4498 the appellant Harding has all the rights of an occupying claimant, for he was 'in quiet possession, claiming title and holding under a sale and conveyance made in pursuance of a decree in chancery, where lands have been directed to be sold, and the purchasers thereof have obtained title to and possession of the same without any fraud or collusion.' Of course, this section applies to proceedings which are defective, for, if not defective, by § 3955 a purchaser in good faith has title, and cannot be evicted upon any terms.

The decree of the Supreme Court of Oklahoma will be reversed and the case remanded to that court, with instructions to set aside the order of the trial court, and to direct the entry of one which, without disturbing the possession of Harding, will give to the appellee the right to appear, plead, and make such defense as, under the facts of the case and the principles of equity, she is entitled to. 

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