Smith v. Pomeroy. also directly in point. Mr. Justice WASHINGTON, in that case, remanded it to the state court, on the ground that the circuit courts had no jurisdiction of a suit to which a state was a party. And in a very recent case reported in 5 National Bankrupt Register, 466, the circuit court of North Carolina decided the same way. These three are all the direct decisions we have found, and they all deny the jurisdiction. We are well satisfied that such is the sound construction of the constitution and the acts of Congress bearing on the question; and we have the less reluctance in dismissing the bill, as we must for want of jurisdiction, in this court, because we have no doubt that both the state courts of Minnesota and the supreme court of the United States are open to the state of Wisconsin for such relief as she may be entitled to. DILLON, Circuit Judge, concurs. NOTE. A similar bill was afterwards filed by the state of Wisonsin in the supreme court of the United States, but the controversy is said to have been subsequently adjusted. As to the former bill by the United States, see 1 Dillon, C. C. R. 469. SMITH V. POMEROY. 1. Decrees and judgments of courts of general jurisdiction are presumptively regular. 2. If the court pronouncing a decree had jurisdiction to render it, such decree can not be collaterally impeached. 3. What is requisite to confer jurisdiction over the property of absent mortgagors in bills to foreclose, considered, and the statute of the territory of Minnesota on that subject, construed. 4. Titles acquired under sales upon decrees of foreclosure, where the court rendering the decree had jurisdiction, can not be collaterally impeached for errors or irregularities in the proceedings in the cause in which the decree was rendered. Smith v. Pomeroy. (Before DILLON and NELSON, JJ.) Absent Defendants.—Publication.-Jurisdiction.—Titles Under Decrees. THIS was an action of ejectment tried to a jury. It was one of numerous cases brought to test the title to the property in "Lambert & Co.'s addition" to St. Paul. The facts appear in the charge of the court. E. C. Palmer, Officer & Chittenden, for the plaintiffs. Gilfillan & Williams, H. J. Horn, Geo. L. Otis, & M. Lamprey, for the defendant. DILLON, Circuit Judge.-This is an action of ejectment for lots 1, 2, and 3, in block 1, in Lambert & Co.'s addition to St. Paul. Both parties claim title under Charles K. Smith, who died intestate on the 28th day of September, 1866. The plaintiff's have been admitted on the trial to be his heirs at law, and upon the documentary evidence introduced are entitled to recover unless the title of their ancestor has been divested by the foreclosure proceedings of one Vetal Guerin against the said Charles K. Smith, set up in the answer. It is under these proceedings that the defendant claims title to the lots in controversy; and the question in the case is whether the right of the said Smith was foreclosed by a valid decree, and the title to the premises vested in the purchaser by a valid sale under such decree. Record evidence has been introduced, showing that on the 25th day of February, 1851, Vetal Guerin, being the owner of ten acres of land, now in the city of St. Paul, and since platted under the name of "Lambert & Co.'s addition" to the city, conveyed the same to Charles K. Smith, above named (the ancestor of the plaintiffs), and that Charles K. Smith on the same day executed a mortgage to Guerin, Smith v. Pomeroy. dated February 25th, 1851, to secure the sum of $200, due May 12th, 1851, which mortgage was duly recorded. It is this mortgage which the defendant avers was subsequently foreclosed, and under which, it is claimed, the mortgaged property was sold by virtue of the foreclosure decree. These foreclosure proceedings are asserted to have taken place in the district court of the territory of Minnesota, for the county of Ramsey, in which the land in controversy is situate; and to show the fact of the foreclosure the defendant has introduced certain record evidence of proceedings in that court in 1851 and 1852 in a suit entitled" Vetal Guerin v. Charles K. Smith," and certain oral evidence to show the loss of other portions of the records in said cause, and a deed purporting to have been made by a master under the decree rendered therein. By the statute then in force that court was a court of general chancery jurisdiction. (Rev. Stats. of Minnesota, 1851, chap. 94.) This statute prescribed in detail the mode of exercising chancery jurisdiction generally, and contained special provisions respecting the "powers and proceedings of the court of chancery touching the foreclosure of mortgages," It prescribed, among other things, the mode of proceeding against absent defendants, in substance that "In case of a bill filed against any defendant, against whom a subpœna or process to appear shall issue, who shall fail to enter his appearance, and it shall be made to appear, by affidavit or otherwise, to the satisfaction of the judge, that the defendant is out of the territory, the judge may by order direct such defendant to appear, plead, answer, or demur to the bill at a day to be fixed, not less than three nor more than six months from the date of the order, which order may be published in a newspaper for six weeks; and in case the defendant shall fail to appear and plead within the time limited, on proof of the publication of the order to the satisfaction of Smith v. Pomeroy. the judge, the judge may order the bill to be taken as confessed, and render a decree as therein provided." (Rev. Stats. 1861, p. 463, sec. 15; Ib. 468, sec. 57.) The statute then in force contained this provision: "The clerk must keep among the records of the court a register of actions; he must enter therein the title of the action, with brief notes under it, from time to time, of all papers filed, and proceedings had therein." (16. p. 421, sec. 40.) It also contained a provision that "It shall not be necessary to enroll any decree in a court of chancery, but immediately after any decree shall have been pronounced, the bill, answer, and all other proceedings in the cause shall be attached together by the clerk and filed in his office," &c. (Ib. p. 465, sec. 32.) On this trial the original book called the "Register of Actions" has been introduced in evidence, and in relation to the suit of Vetal Guerin v. Charles K. Smith, contains entries showing that the bill of foreclosure was filed November 8th, 1851; that two subpoenas were returned by the sheriff that Charles K. Smith was not found, the one November 15th, 1851, the other December 15th, 1851; that an affidavit for an order for publication was filed as follows: Ordered that "Charles K. Smith appear, plead, answer, or demur to the complainant's bill filed in this cause by the 1st day of April next," and that "this order be published in the Minnesotian six weeks successively, at least once each week. Dated, St. Paul, December 22d, 1851. Jerome Fuller, Chief Justice." It has been proved by the production of the original files of the Minnesotian from the state historical society that this order was published for the required length of time. The register of actions also contains the entry of an order of the chief justice, filed April 3d, 1852, that the bill be taken as confessed, and an order of reference by the clerk as master; that the master made his report, which was filed Smith v. Pomeroy. May 10th, 1852, finding the sum of $213.92 due the complainant. It also contains the following entries: "Decree filed May 20th, 1852; report of sale filed August 10th, 1852; final decree confirming sale and ordering distribution of surplus filed September 3d, 1852." The clerk and deputy clerk who made the entries in this register are both alive and have been examined as witnesses before you on this trial, and testify that after thorough search they cannot find the original files or papers in this foreclosure suit; that the orders and decrees of the court were never entered of record in any book, but were filed away at the time as the statute directs. The clerk has testified that he recollects that the bill in the said suit was to foreclose the mortgage from Smith to Guerin, before mentioned; and that he knew a decree of foreclosure was rendered and signed ordering a sale of the mortgaged premises by the clerk as master; that Lambert was the purchaser; that the sale was reported, and that an order was made and signed by the judge confirming the sale. A deed by the master to Lambert, dated August 10th, 1852, reciting the decree and sale and conveying the property, is also in evidence. Now, if you believe from the evidence that the bill in the said suit of Vetal Guerin v. Charles K. Smith was one to foreclose the said mortgage of February 25th, 1851, embracing the lots in controversy; that an order for publication was directed by the chief justice of the court; that the order appearing in the files of the Minnesotian was published for six weeks, respecting which last fact there is, indeed, no controversy; that subsequently a decree of foreclosure was rendered by the judge ordering a sale of the mortgaged premises by the clerk as master; that the clerk sold the premises, though he failed to publish notice of said sale in more than one newspaper; and that the sale was reported to the court and a final decree ordered, confirming the sale |