DICK
v.
FORAKER.

*410 Mr. W.L. Terry for appellant.

Mr. D.W. Jones for appellee.

MR. JUSTICE WHITE, after stating the case, delivered the opinion of the court.

The suit was one to remove a cloud from the title to real estate situated in the district where the suit was brought. *411 The defendant was a citizen of another State. The case was obviously within the jurisdiction of the court. Revised Statutes, § 738; Act of March 3, 1875, c. 137, § 8, 18 Stat. 470; Act of August 13, 1888, c. 866, § 5, 25 Stat. 433; Mellen v. Moline Malleable Iron Works, 131 U.S. 352; Arndt v. Griggs, 134 U.S. 316; Greeley v. Lowe, ante, 58.

The contention is that the law giving jurisdiction, as against a person not a citizen of the district where suit is brought to remove a cloud from the title to real estate, situated therein, applies only to cases where there are two or more defendants, at least one of whom must be found in the district where the suit is brought; that the jurisdiction exists to entertain a suit, like the one before us, where there are two or more defendants, but not where there is only one. It was admitted that this contention is unsound as applied to Rev. Stat. § 738, but it is insisted that the point is well taken in consequence of a change resulting from the reënactment of Rev. Stat. § 738, to be found in section 8 of the act of March 3, 1875. The Revised Statutes gave the right to bring such a suit where "any defendant" resided out of the district. The act of 1875 gives the right "where one or more" may so reside. We see no force in this argument, which in effect eliminates the word "one" from the statute and replaces it by the word "two," thus causing it to read "two or more," instead of "one or more." The suggestion that as the words "one or more," in section 737, Rev. Stat. contemplated a controversy in which two or more defendants would be involved, therefore the words "one or more" mean the same in the Act of 1875, is fallacious.

Section 737 provides for a case where there are "several defendants and "one or more" may be outside of the district; the Act of 1875, on the contrary, provides for a case where "one or more of the defendants" may be outside of the district, the difference between the two being that which exists between "one or more of several" and "one or more." The demurrer was, therefore, correctly overruled.

The act of the Arkansas legislature which we have cited provides that on the filing of the complaint with the clerk, an *412 order shall be entered on the record, notifying all persons having any right or interest in the lands sought to be sold to appear within forty days, and show cause why a lien should not be declared on said land for unpaid taxes, and why said land should not be sold for non-payment thereof. The act directs the clerk to cause a copy of this order to be inserted twice, in a newspaper published in the county, and if there be no such newspaper to post a copy at the court-house door. It further declares that such publication shall be taken to be notice to all the world of the contents of the complaint. These are the only provisions made in the act for notice to the land owner. The proceedings leading up to the tax sale, as they appear on the record before us, do not include the required notice nor any order therefor, nor is it shown that any such notice was put on record in the course of the tax sale proceedings. It is true that the order directing the sale recites: "It appearing that the order herein made requiring the owners of the land in this suit to appear and show cause, if any they could, why a lien should not be declared on certain land, has been duly published in the manner required by statute," etc. This indirect reference to the notice is the only record evidence that such a notice was made, put on record, or published.

In Gregory v. Bartlett, 55 Arkansas, 30, 33, the Supreme Court of that State, having before it a case in which the notice required by law under the terms of the second section was not properly given, said:

"Without the statutory notice, therefore, there can be no jurisdiction. If the clerk makes the warning order, as the second section of the act requires, but fails to publish or post it, and that fact appears in the judgment record, there could be no justifiable pretence of jurisdiction. If he publishes the statutory warning without first making the order required by section 2, the question is, does he make a legal publication? In other words, is he authorized by the statute to make publication when there is no previous order of record? If he is not so authorized, then the publication is without authority and is not legal notice to the owner of the land... . When this requirement of the statute is complied with, it furnishes to the *413 owner of delinquent lands a means of information which the statute designed he should receive. Searching the records and finding no order for a proceeding against his land, he had a right to presume that none existed. There is nothing in the statute to indicate that the legislature considered the entry of the order upon the record as of any less significance than the publication of it. In a section of the act where a form of a decree to be entered is given, it is made to recite that the order was entered of record as well as that it was published; and the requirement as to publication is that a copy of the record entry shall be published. The order is the sole authority for the publication, and the evidence of it which the statute requires is the record entry... .

"The statute does not authorize the clerk to make the order in any manner other than by entry on the record, and authorizes publication of nothing except a copy of the record. To say that the clerk can dispense with the record and make his entry, in the first instance, in a newspaper, would be to disregard a plain provision of the statute and dispense with one of the means the law affords for imparting information to the land owner. But when a statutory provision is plain, and is made to aid in the accomplishment of a useful end, it cannot be treated as merely directory, and so be disregarded. Especially does that rule apply to proceedings where publication is relied upon as a substitute for personal service. Bush v. Visant, 40 Arkansas, 124; Brodie v. Skelton, 11 Arkansas, 120... . No process was ever issued in the cause in which the challenged decree was rendered; the court's determination of any question was therefore coram non judice, and binding upon no one... . The recital of the decree that there was proper notice to the parties in interest is not conclusive of that fact, but must be read in connection with that part of the record which gives, or is required to give, the official evidence of jurisdiction, as prescribed by statute. Boyd v. Roane, 49 Arkansas, 397; Settlemier v. Sullivan, 97 U.S. 444; Galpin v. Page, 18 Wall. 350.

"If such evidence is not required by the statute to be placed upon the record, and the record recites or is silent as to the *414 facts necessary to show jurisdiction, their existence will be presumed, but no presumptions are indulged when the evidence is stated upon the record, Boyd v. Roane, 49 Arkansas, 397, or where the statute requires the jurisdictional facts to appear of record and they are not made so to appear."

Thus the Supreme Court of Arkansas, in interpreting a statute of that State, has held that the making of the record entry of the notice required, and also the proof of its publication are indispensable to the validity of proceedings under the statute; that such recorded notice is essential to give jurisdiction to the court, and that where the notice is not of record the proceedings are absolutely void. As we have seen, this record does not show either notice or publication. The appellee, then, seeks to have a cloud removed from his title when he holds no title whatever; for, of course, it follows that if the court was without jurisdiction the decree by it rendered was utterly void, and the sale, having been made under the decree, was equally vicious and wholly null. The rule in ejectment is that the plaintiff must recover on the strength of his own title, and not on the weakness of the title of his adversary. A like rule obtains in an equitable action to remove a cloud from a title, and title in the complainant is of the essence of the right to relief. In Frost v. Spitley, 121 U.S. 552, 556, we said: "Under the jurisdiction and practice in equity, independently of statute, the object of a bill to remove a cloud upon title, and to quiet the possession of real estate, is to protect the owner of the legal title from being disturbed in his possession, or harassed by suits in regard to that title; and the bill cannot be maintained without clear proof of both possession and legal title in the plaintiff. Alexander v. Pendleton, 8 Cranch, 462; Peirsoll v. Elliott, 6 Pet. 95; Orton v. Smith, 18 How. 263; Crews v. Burcham, 1 Black, 352; Ward v. Chamberlain, 2 Black, 430. As observed by Mr. Justice Grier in Orton v. Smith, `Those only who have a clear, legal and equitable title to land, connected with possession, have any right to claim the interference of a court of equity to give them peace or dissipate a cloud on the title.' 18 How. 265."

The law of Arkansas authorizes a bill to remove a cloud on *415 a title whether or not the complainant be in possession. Act of March 26, 1891, No. 74, Stats. of 1891, 132. By reason of this statute a bill in equity may be maintained in the Circuit Court of the United States by a person not in possession against another who is also out of possession. Holland v. Challen, 110 U.S. 15, 25. But this does not make the complainant's rights any the less dependent upon title in him nor does it put him in a position to have a cloud removed from a title which has no existence. In Frost v. Spitley, supra, it was said, p. 557:

"A statute of Nebraska authorizes an action to be brought `by any person or persons, whether in actual possession or not, claiming title to real estate, against any person or persons who claim an adverse estate or interest therein, for the purpose of determining such estate or interest, and quieting the title to said real estate.' Nebraska Stat. Feb. 24, 1873; Rev. Stat. 1873, p. 882... . The requisite of the plaintiff's possession is thus dispensed with, but not the other rules which govern the jurisdiction of courts of equity over such bills. Under that statute, as under the general jurisdiction in equity, it is `the title,' that is to say, the legal title, to real estate, that is to be quieted against claims of adverse estates or interests. In State v. Sioux City & Pacific Railroad, the Supreme Court of Nebraska said: `Whatever the rule may be as to a party in actual possession, it is clear that a party not in possession must possess the legal title, in order to maintain the action.' 7 Nebraska, 357, 376. And in Holland v. Challen, above cited, this court said: `Undoubtedly, as a foundation for the relief sought, the plaintiff must show that he has a legal title to the premises.' The necessary conclusion is, that Spitley, not having the legal title of the lots in question, cannot maintain his bill for the purpose of removing a cloud on the title."

It is said that the State of Arkansas became a party to the proceedings in the Ashley County court, and is hence bound thereby, and from this is deduced the argument that inasmuch as the defendant derived his title from the State subsequent to the complainant's purchase, the latter's title is validated. *416 Stafford v. Watson, 41 Arkansas, 1. But the appearance of the State did not cure the radical defect in the proceedings under which complainant purchased. The notice was essential in order to affect the rights of the owner of the property as against whom the proceedings were initiated and the sale was made. The appearance of the State did not, therefore, give the court jurisdiction or render the sale valid. There are other contentions urged, but they are all covered by what has been already said. They either arise from the erroneous postulate that the complainant's title is not void, but simply voidable, or are predicated on the equally unsound premise that one having no title can successfully invoke the aid of a court of equity to "remove a cloud" from such non-existent title; that is to say, can ask a court to subtract something from nothing.

Decree reversed and case remanded with directions to dismiss the bill.