§ 384. Agent of nonresident applicant.

If the applicant is

not a resident of the state, he shall file with his application a paper appointing an agent residing in the state, giving his name in full and post-office address, and shall therein agree that the service of any legal process, in proceedings under or growing out of the application, shall be of the same legal effect, if made on the said agent, as if made on the applicant within the state. If the agent dies, or becomes incapacitated, or removes from the state, the applicant shall forthwith make another appointment; and if he fails to do so within a reasonable time, the court may dismiss the application.

Formerly section 16, chapter 444, Laws of 1908.70

Comment. A considerable fraction of the landholders of this State are nonresident. That real property maintains such a constant valuation, as it does generally, is in part due to this fact. Unless nonresidents were willing to maintain or acquire holdings here, the local real estate market would not be so good as it is. It is very important, therefore, that this act should apply to nonresidents as well as to residents. How carefully this section may protect the rights of nonresidents, or how far it unnecessarily restricts them, remains to be seen in practice. No doubt this article is destined to be subjected to many changes in the future as time develops its exact meaning.

In Dewey v. Kimball (89 Minn. 454) it was held that all the provisions in respect of partic; to proceedings to register titles were mandatory, and that a failure to follow them invalidates any final judgment for want of jurisdiction.

70 Repealed. See 8 460, infra.

§ 385. Commencement of the action. On the complaint and all the other papers and documents filed with the registrar in the making of the application for registration, the court shall determine whether or not the plaintiff appears to have a title that should be registered. For the purpose of arriving at such determination, the court may require a further examination of the title, to be made by the same examiner who has made the certificate, or by another official examiner, and it may also require a further or amended survey, or certificate, or additional affidavits, or any other proper evidence or proof. When the court is satisfied that the plaintiff appears to have a title that should be registered, it shall make an order directing that the action to register such title be commenced by the issuance of the summons, and the service of the summons and the notice required by section three hundred and eighty-six of this chapter. The summons shall be made and have the form, and it and said notice shall be served in the manner prescribed by the code of civil procedure for a summons in an action in the supreme court; except that, when service is directed to be made by publication, it shall be ordered to be made in only one newspaper designated by the court once a week for four successive weeks, and such service so made shall be complete at the end of twenty-eight days from and including the day of the first publication; and except further that any defendant on whom personal service is made without the state pursuant to such an order shall appear, answer, or demur within twenty-eight days after such personal service; and except further that an order for service of the summons and said notice shall be a court order, and the summons served pursuant thereto need not be accompanied by any notice except that prescribed and required by section three hundred and eighty-six of this chapter; and except further as otherwise provided herein. Before making an order for service of the summons and said notice by publication or other form of substituted service, the court must be satisfied by proof of the facts that the plaintiff has been or will be unable, with due diligence, to make personal service of the summons. The question of the sufficiency of

such proof shall be for the court; and an allegation, in an affidavit or other duly verified statement recited in said order, that the plaintiff has been or will be unable with due diligence to make personal service of the summons, or that after diligent inquiry a defendant remains unknown to the plaintiff or that the plaintiff is unable to ascertain whether the defendant is or is not a resident of the state, may be taken to be sufficient proof thereof. An order containing such a recital, and made on such proof, shall not be drawn in question after six months from the time when the final judgment in the action is entered. Service of the summons and said notice on the people of the state of New York shall be sufficiently made, by mailing a copy thereof securely inclosed in a postpaid wrapper, and directed to the attorneygeneral of the state of New York. The action shall be governed by, and shall proceed according to, the laws of this state and the rules of court, relative to an action in the supreme court, as far as the same are applicable and are not abrogated or modified by this article.

Formerly section 17, chapter 444, Laws of 1908.71

Comment. This section seems to indicate the beginning of a proceeding which is really hostile. It has been held in some States to be a proceeding in rem.72 In all events it is intended to lead to a decree which shall be forever final and complete on the question of title. Whether the proceeding is one in rem or in personam is very important, and there has been much discussion on this question.73 If the proceeding is one in rem, publication may be notice and the decree will bind all the world. Some of the Torrens' acts provide that the proceeding shall be one in rem.74

71 Repealed. See $ 460, infra.

72 Woburn First Nat. Bank V. Woburn, 192 Mass. 220; Tyler v. Judges of Court of Registration, 179 U. S. 405; State ex rel. v. Westfall, 85 Minn. 437; cf. Morris v. Small, 160 Fed. 142; Leigh v. Green, 193 U. S. 79.

73 State v. Guilbert, 56 Ohio St. 575; and see the dissenting opinion of Loring and Lathrop, JJ., in Tyler v. Judges, 175 Mass. 71.

74 § 17, California Act, and § 391, infra.

Is the action one at law or in equity or both? In Illinois an application under their "Torrens Law" is a proceeding in chancery.75 In some States the proceeding is regarded as sui generis. In New York the courts will ultimately decide upon the nature of the action. We have already seen that as it concerns legal titles there must be a trial by jury, unless it is waived, on any issue of title.76

As a general proposition of law it may be affirmed, that all issues of legal title to land are matters for trial by jury. The common law adopted by the State Constitution, and the clauses of the Bill of Rights preserve this inestimable privilege intact, and it will not be lightly surrendered by the people at large.

75 People v. Simon, 176 Ill. 165; Gage v. Consumers Co., 194 id. 30.

76 See p. 1075, supra, under § 371.

§ 386. Notice of object of action; copy of complaint. The summons, however served, shall be accompanied by a notice, which shall state the object of the action and describe briefly, but plainly, the property, the title to which is sought to be registered. Said notice shall be approved by the court, and a copy thereof shall be annexed to the order directing the service of the summons and said notice. Said notice shall be as follows: "The object of this action is to register and confirm the title of (name or names and post-office address of plaintiff in full) in the following described property (description as approved by the court)." A copy of the complaint may be demanded by the attorney of any defendant, and if so demanded must be served, as prescribed by section four hundred and seventy-nine of the code of civil procedure.

Formerly section 18, chapter 444, Laws of 1908.77

§ 387. Summons and notice to be posted on the land. A copy of the summons and notice of object of action, as above described, shall be posted in a conspicuous place on each parcel of land included in the action, at least forty days before application is made for judgment in the action. The affidavit of the person by whom such posting is made shall be conclusive proof that such notice was posted in a conspicuous place, and shall be filed with the application for the judgment or before the judgment is entered.

Formerly section 19, chapter 444, Laws of 1908.77a

77 Repealed. See § 460, infra.

77a Repealed. See 460, infra.