The respondent has petitioned for rehearing. The opinion given on appeal will be found above. The statement of the case or the authorities heretofore cited need not be repeated here. Counsel for petitioner admits the correctness of the general rules noted in that opinion as to necessary parties, but strenuously urges that the case at bar comes within the exceptions to the general rules, and as an exception he cites Story's Eq. Plead., sec 78, wherein the author says: "Hence it is a common rule of the court, that when a person who ought to be made a party is out of the jurisdiction of the court, if the fact is stated in the bill, and admitted by the answer, or proved (if denied) at the hearing, that of itself constitutes a sufficient ground for dispensing with his being *Page 340 made a party, and the court will proceed to a decree without him." Counsel contends that the suit at bar is "not a proceeding in rem, but in personam; that it is not a suit against the property, but a suit against the person." That "the suit being in equity and inpersonam and the Churches being absent from the state and residents of the state of New York, they could not be brought in because beyond the reach of the state's process and without its jurisdiction." Counsel cites Pennoyer v.Neff, 95 U. S. 714; Hart v. Sansom,110 U. S. 151, and several other cases.
We might dispose of this point by simply noting the fact that it does not appear by the bill or complaint, or otherwise by the record, that the Churches are out of the jurisdiction, of the court. "Where the party is out of the jurisdiction, that fact should be positively averred in the bill, and not left to mere inference." (Penfold v. Nunn, 5 Sim. 408; Story, sec. 78.) But the residence of a person out of the state who ought to be joined in a suit does not justify the omission to make him a party.
Gen. Stats., sec. 3052, provide for service of the summons by publication on a non-resident person who is a necessary or proper party to the action. (Barbour on Parties, 333.) In the cases of Hart v. Sansom andPennoyer v. Neff, supra, it is held in effect that if the court which enters the decree or judgment in a given case is authorized to act therein in personam only, it acquires no jurisdiction by publication to grant relief. That rule is well settled, and that is the full extent to which it can be said the authority of these decisions go.
In Arndt v. Griggs, 134 U. S. 316, Mr. Justice Brewer delivered the opinion of the court, and in an elaborate review of the authorities says: "A state may provide by statute that the title to real estate within its limits shall be settled and determined by a suit in which the defendant being a non-resident is brought into court by publication. The well-settled rules 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, do not apply when a state has provided by statute for the adjudication of titles to real estate within its limits as *Page 341 against non-residents who are brought into court only by publication."
In the case of Pennoyer v. Neff, supra, on which case counsel for petitioner seems to rely with confidence as authority for his contention that the Churches cannot be reached by publication, the court, by Mr. Justice Field, says: "Such service may answer in all actions which are substantially proceedings in rem. * * * It is true that, in a strict sense, a proceeding in rem is one taken directly against the property, and has for its object the disposition of the property, without reference to the title of individual claimants, but in a larger and more general sense the terms are applied to actions between parties, where the direct object is to reach and dispose of property owned by them or of some interest therein. * * * So far as they affect property in the state, they are substantially proceedings in rem in the broader sense which we have mentioned."
In Hart v. Sansom, cited by counsel, the court said: "It would doubtless be within the power of the state in which the land lies to provide by statute that if the defendant is not found within the jurisdiction, or refuses to make or to cancel a deed, this should be done in his behalf by a trustee appointed by the court for that purpose."
In Arndt v. Griggs, supra, the court, after quoting the above from Hart v. Sansom, says: "And, of course, it follows that if a state has power to bring in a non-resident by publication for the purpose of appointing a trustee, it can, in like manner, bring him in and subject him to a direct decree."
There are numerous decisions, both of the federal and state courts, to the effect that the state has power through its legislature and courts 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 voluntarily surrender jurisdiction of their person to the state, or the courts of the state, and that the owners thereby may be totally deprived of their property, although no notice is ever given to such owners, except notice by publication. (Arndt v. Griggs, supra, and cases therein cited.)
Section 3040, Gen. Stats., provides that actions "for the recovery of real property, or of an estate or interest therein, *Page 342 or for the determination in any form of such right or interest," shall be tried in the county in which the subject of the action or some part thereof is situated, subject to the power of the court to change the place of trial.
Actions to set aside fraudulent conveyances of real estate are held to belong to the above class and may be prosecuted against a non-resident by publication. (Adams v. Cowles, 85 Mo. 501; 8 S. W. Rep. 711;Chicago and A. Bridge Co. v. The Anglo-American PackingCo., 46 Fed. 584; McLaughlin v. McCrory,55 Ark. 442; 18 S. W. Rep. 762; Works on Courts and Their Jurisdiction, 270; Jones, McDowell Co. v. Fletcher,42 Ark. 422.)
The suit at bar is brought to cancel a deed of conveyance of real and personal property situated in Eureka and White Pine counties, Nevada, and revest the title in the plaintiff, and is an action in part under the above authorities, "for the recovery of real property, or of an estate or interest therein," and necessary parties defendant may be brought in by publication. The court has like power as to the personal property. "If the state court has such power with reference to title to real estate held by non-residents, how much the more will it have the same with reference to personal property situate within its jurisdiction?" (Loaiza v. Superior Court,85 Cal. 11.)
Where a court of equity is empowered to cancel a deed and establish title to land within its jurisdiction by mere force of its decree, to that extent its action is inrem. (55 Ark. 442, supra.)
In Galpin v. Page, 3 Saw. 124, the court held that proceedings which are in form personal suits, but which seek to subject property brought by existing lien, or by attachment, under the control of the court, and those who seek to dispose of property or relate to some interest therein, but which touch the property or interest only through the judgment recovered, while not strictly proceedings in rem, so far as they affect property in the state, are treated substantially as such proceedings.
In Pennoyer v. Neff, supra, the court says that substituted service by publication may answer in all actions which are substantially proceedings in rem. *Page 343
The case at bar is substantially a proceeding in rem. Its direct object is to reach and dispose of the property of the parties described in the complaint. The decree of the trial court is substantially a decree in rem. The court, by mere force of its decree, annulled the deed of conveyance and vested the title to the property in the plaintiff.
Having heretofore fully considered and passed upon the other questions presented by the petition for rehearing, and finding no reason or authority to induce us to change our former opinion, the petition is denied.