I dissent. The plaintiff made out a prima facie right to have his title quieted. The defendants, instead of standing on the judgment in foreclosure by the Capital Trust, elected to plead specially and attempt to prove the proceedings in the foreclosure action. Such proceedings developed defects not apparent on the face of the judgment roll, and in the attempt to remedy such defects sought and succeeded in having the judgment roll introduced in evidence over the objections of the plaintiff, thus combining the judgment roll and their case grounded upon the *Page 139 special pleading in order to sustain their cross-complaint to quiet title. This constituted a procedure which appears to me to be in conflict with the rule laid down by this court in FirstNational Bank v. Grow, 57 Mont. 376, 188 P. 907; Zozel v.Kohrs, 72 Mont. 564, 577, 234 P. 1089; and Thomson v.Nygaard, 98 Mont. 529, 41 P.2d 1, which is to the effect that a special pleading governs a general one, and to plead the rule against attacks upon judgments fair on their face rendering them immune from collateral attack is a general plea. In theNygaard Case the general and special pleas were found to be not inconsistent, but by reason of the proof made in the case at bar showing defects in the foreclosure proceedings, the defendants having elected to stand upon their special plea, the general plea is deemed abandoned.
The defects in the proof made under the special pleadings consist chiefly in failure to introduce the affidavit for the order for publication of summons; failure to introduce the affidavit of publication of alias summons, and serving summons on the assistant secretary of state while there was written authority in the files of the office of the Secretary of State, giving the name of a party resident at Kevin, Montana, authorized to accept service for the Petroleum Company, in whom title rested when the foreclosure action was commenced. Under the rule mentioned, the pleader may not ground his case on both a general and special plea.
The majority would cure these defects by resorting to presumptions. In actions to quiet title one must depend upon the strength of his own title without regard to the weakness of the title of his adversary. This universal rule necessarily makes it incumbent on one who seeks to clear his title in quiet title actions affirmatively to plead and prove all the essentials to show good title, and such proof must be grounded upon established facts; presumptions are merely inferences drawn from facts proved, (sec. 10602, Rev. Codes), and have no part in such actions.
Section 9484, Revised Codes, referring to the affidavit for order for publication of summons under section 9483, provides *Page 140 that "the facts constituting due diligence shall be set out in said affidavit." I seriously doubt if the mere recital in the affidavit to the effect that no representative of the Petroleum Company could be found in Montana constitutes the "due diligence" mentioned in the statute. If the affidavit had recited that inquiry had been made at Kevin for the purpose of locating the Montana representative of the Petroleum Company and he could not be found, I think that would have been sufficient.
Defendant Johnston derived his title to the land and 87 1/2 per cent. of the oil and gas ostensibly from the Superintendent of Banks of the State of Minnesota, but the name of the superintendent was apparently signed by a deputy, who also took the acknowledgment to the deed. To approve title derived from such a transaction is, in effect, to take judicial notice of the deputy's authority to execute such an instrument on the strength of the mere recital therein that the deputy "was thereunto duly authorized."
I decline to join in a decree of this court giving Mr. Johnston's title a clean bill of health on such emblems of title. The case should be remanded for further proceedings.