(concurring specially).
I concur.
The affidavit on which the order for service by publication was grounded made an assertion, to wit
“That the defendant, Culbert L. Olson, resides outside the State of Utah”.
This was followed by the statement of a correct conclusion of law from that asserted fact, to wit,
“* * * personal service [on Olson] cannot be had.”
Then followed three statements: (1)
“* * * that affiant, for the purpose of finding said defendant [Olson] has made diligent search and inquiry in the State of Utah”
*76(2)
“and. has checked the records of both to determine the last address of the defendant,”
and (3)
“finds that his last address was:
“Culbert L. Olsen — Unknown”
(Emphasis added).
The statement that Culbert L. Olson resides out of the State of Utah was, of course, true, and the legal conclusion therefrom that personal service could not be had was correct. But I think § 104-5-13, U. C. A. 1943 providing that
“In case of publication where the residence of a nonresident * * * defendant is known, the clerk must forthwith deposit a copy of the summons and complaint in the post office, postage prepaid, directed to the person to be served at his place of residence. * *
presupposes some duty to make inquiry to ascertain that place of residence outside of the State. See Parker v. Ross, 117 Utah 417, 217 P. 2d 373, 21 A. L. R. 2d 919.
In this case, the plaintiff affiant asserted only that Olson resided out of the State, which is, and at the time could have been, conceded. He then seemingly proceeded on the theory that if he could make his affidavit speak ignorance of Olson’s residence outside the State of Utah, the clerk would owe no duty to obey the mandate of Section 104-5-13. His affidavit states that for the purpose of finding Olson he made diligent search and inquiry in the State of Utah. Since in the same affidavit he states positively that Olson resides out of the State of Utah we must presume he thought that he did not need to make inquiry or search for Olson’s residence in the State of Utah but that he should make diligent search and inqury in the State of Utah for a disclosure of Olson’s residence outside of the State of Utah.
*77I do not think a search, however diligent, confined to a particular state when one is seeking the address of one knowingly without that state, would in many cases be sufficient or extensive enough in its diligence where one was seeking to get a judgment quieting title to land of another in himself. But the affidavit has other infirmities which will in a moment be noted. The affidavit states that affiant “checked the records of both” to determine the last known address of the defendant. This is unintelligible to me. What are “the records of both”? What antecedent does “both” refer to? If he had'sworn that “he checked the records” it would be about as indefinite as it could be but it would at least be intelligible. The full fruit of his search was that Olson’s last address was “unknown”. Now, of course, we must apply common sense. It was not meant to swear that Olson’s address was at a place called “Unknown”. What was meant to convey was that a search of certain records (but which certain records were not vouchsafed) did not reveal Olson’s address.
The statement in the majority opinion that
“* * * the affidavit for publication of summons upon which the order was based was purposefully false and fraudulent for the purpose of preventing appellant from knowing of the existence of the action and from appearing and defending his title * * *”
is blunt and severe but perhaps the facts in this case warrant it. The residence of Olson was on the assessment rolls up to 1938 when the property was sold. Possibly there is some excuse for not searching records after the tax records showed Olson was no longer the owner. And possibly in 1946 when the defaulted action versus Olson was brought there might have been a reason for not knowing how far back to go in the search. But the affiant must have known that Olson once was owner of the property; otherwise he would not have been joined in the quiet title action. Such knowledge, if he was in earnest as to diligence, would have prompted him to look in back assessment rolls for knowledge of when it was last assessed to Olsen and thence con*78tinue the search before that date for disclosure of Olson’s address. And this is all search within the State of Utah so that even if the plaintiff in the 1946 suit had concluded that he had no duty under Sec. 104-5-10 to make any further search after he ascertained that Olson resided somewhere outside of Utah, he must have decided that he owed a duty to make a diligent search of the records pertaining to the Utah property because he makes affidavits that he did so. Moreover, Olson had been so prominent in the public life of California that a decent inquiry properly directed would have led to a knowledge of his address in that State. At any rate, the mind of the affiant was such as to be so reckless in its statements in the affidavit as to be equivalent to deceit. Long ago in the case of Derry v. Peek, (1889), 14 A. C. 387, the House of Lords held that a statement made with the knowledge of the maker that he was ignorant of whether it was false or true was equivalent to conscious deceit. We are now in a position to see the force of Liebhart v. Lawrence, 40 Utah 243, 120 P. 215, which the main opinion discusses. I agree with the statement of the main opinion that this affidavit “presents no evidence ‘of any inquiry or search for Olson’s residence’ ”. I am not sure that a person could only know that a defendant was not a resident of the State unless he knew the actual residence of the defendant outside the state. I suppose that one can know as he knows that Washington once lived, that a person has left the state and resides outside thereof even though he does not know his exact residence or even vicinity of his residence. But I agree that the affidavit states no evidentiary facts at all.
. From what I have said above and as I understand the opinion of Mr. Justice Wade, the following principles may be adduced: (1) That an affidavit for publication of summons which recites only the factual conclusion that the defendant resides outside of the State of Utah, thus asserting a fact which makes personal service within the State on such defendant impossible, and sets up no facts in the *79affidavit from which the clerk or judge, who upon the strength of the affidavit is asked to make the order of publication, can determine whether affiant has made any search for the whereabouts of the defendant in the State of Utah and if so whether it was a diligent search or inquiry, must, if it develops subsequently that the defendant did reside in and not outside the State of Utah, be subjected to being declared false and the judgment based on service by publication set aside.
(2) It is my understanding that regardless of how certain or how true the fact of defendant’s absence of residence from the State of Utah is, publication of summons cannot be made on the basis of an affidavit which simply asserts such absence but the affidavit must disclose facts from which it can be inferred or concluded that the search was as diligent as under the circumstances was reasonably possible; and the facts of diligence disclosed by the affidavit must not only extend to the conclusion of the defendant’s nonresidence in the State of Utah but to the affirmative fact of his residence at some definite point elsewhere or at least disclose a diligence from which it can reasonably be deduced that the affiant went as far as a person reasonably could to reveal definiteness of residence out of the state for the utilization by the clerk or judge in his duty to deny or grant the order for publication.
(3) I further understand the decision to hold that the affidavit not only asserted nonresidence in - Utah but, save for the mere assertion of diligence and of a checking of records of “both” [whatever “both” refers to], showed affirmatively that the records disclosed that the address of the defendant was not known, whereas readily available and logically suggested records would have disclosed a definite and correct address of the defendant Olson outside of the State; hence it was affirmatively shown that the affidavit was false as to diligence and false as to what the records would have disclosed. Thus the false affidavit per*80petrated a fraud on the court as to a fact which was jurisdictional. With this I agree.
CROCKETT, J., concurs in the opinion of Mr. Justice WADE and also in the views expressed by Mr. Chief Justice WOLFE in his concurring opinion. HENRIOD, J., concurs in the result.