* * *

certified to by me, in the United States' Post | satisfaction of the court or judge thereof; Office at Portland, in the county and state * * and it also appears that a cause of aforesaid, on the 21st day of September, 1896, action exists against the defendant, both being securely inclosed in a sealed en- the court or judge thereof shall velope, and postage thereon fully prepaid grant an order that the service be made by and directed to said Olive Wiberg Carr at publication in either of the followthe city of Denver, Colorado, that being the ing cases: * (3) When the defendant present residence and post office address of said defendant." He also made a similar statement as to the mailing to Bruce L. Carr.

is not a resident of the state, but has property therein, and the court has jurisdiction of the subject of the action." There is no provision that the affidavit shall state the post office address of the defendant, and therefore the necessity of such a statement is not jurisdictional.

It is jurisdictional that

The final decree of the court recites that: "It further appearing to the court that the defendants, Bruce L. Carr and Olive Wiberg Carr, were each duly served with a duly [3] Section 57, L. O. L., provides that certified copy of the summons and complaint the order shall direct, among other things, in this action by Richard Nixon, one of the that "a copy of the summons and complaint attorneys of plaintiff, depositing with post- to be forthwith deposited in the post office, age prepaid thereon the said copies of sum-directed to the defendant at his place of mons and complaint in the post office of the residence. * * United States at the city of Portland, Oregon, addressed and directed to each of said defendants, Bruce L. Carr and Olive Wiberg Carr, at the city of Denver, Colorado, that being the residence and post office address of the said defendants, as more fully appears by the affidavit of the said Richard Nixon herein filed." The decree further recited the publication of summons, as by law provided. The judgment roll in the suit of Leonard V. Carr, which is in evidence in this suit, disclosed the above facts. Thereupon the court made findings of fact and conclusions of law, sustaining the validity of the decree, and rendering decree, quieting plaintiff's title herein, from which defendant appeals.

the summons and complaint be mailed to the defendant at his post office address, but whether the failure of the affidavit to state the post office address of the defendant or the order of the judge to direct the mailing to a particular post office address, named in the order, would be fatal to the proceeding when raised in a direct attack upon it, as held in Ricketson v. Richardson, 26 Cal. 149, which was a direct attack, it is not necessary to decide now. It is said in 32 Cyc. 475, as to the sufficiency of the affidavit, that: "Every fact should be shown which is necessary under the statute to give the right to an order for service by publication, although it may be supported and aided by a sheriff's

Jerry E. Bronaugh, for appellant. W. S. return of not found; but it need show no Hufford, for respondents.

EAKIN, C. J. (after stating the facts as above). There is but one question involved here, namely: The sufficiency of the service of summons on defendants. The affidavit for the order of publication states that the defendants reside at Estes Park, Colo., while the order of the court recites that it appears that defendants reside at the town of Denver, Colo., and directed the summons to be mailed to them at that address, and the proof of mailing establishes that it was mailed to the defendants at Denver, Colo.

[1] This is a collateral attack by defendant upon the decree, and it must be unavailing unless the defect in the service is such as to render the decree in the former case absolutely void and not voidable. Defects in the service, that might be successfully attacked in a direct proceeding, will not be available to the defendant in a collateral proceeding, unless there is a total absence of notice.

facts other than those required by the statute." Also in Garrett v. Struble, 57 Kan. 508, 46 Pac. 943, it is said: "In Harris v. Claflin [36 Kan. 543, 13 Pac. 830], supra, it was held that if there is a total want of evidence upon a vital point in the affidavit for publication, the court acquires no jurisdiction by publication of the summons; but where there is not an entire omission to state some material fact, but it is inferentially or insufficiently set forth, the proceedings are merely voidable. The same principle as nearly as may be should be applied as the test of the sufficiency of a publication notice. If there is a total failure to state in the notice any material matter required by section 74 of the Civil Code, the service is void; but if there is not an entire omission of such material matter, and it is inferentially or insufficiently set forth, the notice is merely voidable and not void."

[4-6] In this case there is no question but that the affidavit contains all the facts made jurisdictional by the statute, and although [2] The statute (L. O. L. § 56) provides the address of defendants is stated in the that "when service of summons cannot be affidavit as Estes Park, yet it appears by the made as prescribed in the last preceding affidavit of plaintiff's attorney that they resection, and the defendant, after due dili-sided at Denver, Colo., and the fact was so gence, cannot be found within the state, and found by the court, and the mailing was done

disclosed in the record may be irregular and | court for the reason that the affidavit was defective, but it cannot be questioned in this wholly insufficient to give the court jurisproceeding. If, at any time after the filing of the affidavit for service by publication, and before the mailing, it is ascertained that defendant's address has been changed, or that it was erroneously stated, it is not too late to correct it by an additional showing. And the court has found that Denver was their address and directed the mailing to be made to that address, and this we deem sufficient.

[7] The rule seems to be that, if there is actually some notice to the defendant, it is sufficient on a collateral attack, and the irregularity or defect in the service or lack of compliance with the statute does not render the judgment void, but merely voidable. The following cases are all collateral attacks upon judgments or decrees rendered on service for publication, and it was held in each that, although the service was defective or irregular, it did not render the judgment void, and was sufficient against a collateral attack: Salisbury v. Sands, 21 Fed. Cas. 12,251; Bickerdike v. Allen, 157 Ill. 95, 106, 41 N. E. 740, 29 L. R. A. 782; Cruzen v. Stephens, 123 Mo. 337, 345, 27 S. W. 557, 45 Am. St. Rep. 549; Garrett v. Struble, 57 Kan. 508, 46 Pac. 943; Denman v. McGuire, 101 N. Y. 161, 166, 4 N. E. 278; Essig v. Lower, 120 Ind. 239, 244, 21 N. E. 1090; Spillman v. Williams, 91 N. C. 483; Carey v. Reeves, 32 Kan. 718, 5 Pac. 22; Connely v. Rue, 148 Ill. 207, 35 N. E. 824; Cohen v. Portland Lodge No. 142 B. P. O. E. (C. C.) 144 Fed. 266.

diction by publication, the Supreme Court, after discussing that question at some length, said: "The majority are of the opinion that inasmuch as the statute requires, for an order of publication, that certain facts shall appear by affidavit to the satisfaction of the court or judge, defects in such affidavit can only be taken advantage of on appeal, or by some other direct proceeding, and cannot be urged to impeach the judgment collaterally." The words "to the satisfaction of the court or judge" are in italics. Mr. Justice Lord refers to the language above quoted in Odell v. Campbell, 9 Or. 298, 302.

In Essig v. Lower, 120 Ind. at page 244, 21 N. E. 1092, which is a collateral attack upon a decree rendered on service of summons by publication, it is said: "Had the court proceeded in these cases without any notice, then it would be clear that there was a want of jurisdiction, but it clearly appears, by the special finding, that there was some notice, and that such notice was based upon an affidavit. It became, therefore, a question to be determined by the courts in which these proceedings were pending, as to whether such affidavits and notices were sufficient. The court having determined that question in favor of the jurisdiction, such determination is conclusive as to all the parties when collaterally attacked. In the case of Jackson v. State, etc., 104 Ind. 516 [3 N. E. 863], Elliott, J., who wrote the opinion and collected the authorities upon this subject, after citing them, says: "These cases proceed The case of Ricketson v. Richardson, 26 upon the theory that the court has authority Cal. 149, cited by defendant as particularly to decide all questions, whether affecting the in point, was a case of a direct attack upon jurisdiction or other matters, and this is the the judgment, as were many of the other only logical ground upon which they can be cases cited by defendant upon this point. maintained. If it be conceded that the court It is said in the note to Clay v. Bilby, 1 does not by its decision determine the suffiAnn. Cas. 923, that "there is an important ciency of a notice, then it must also be condistinction between cases where no service ceded that these cases are wrongly decided, of summons is had upon the defendant and and this would result in the overthrow of a those cases wherein there is a service which long and unwavering line of decisions. Once is defective or irregular. Where it is granted that these decisions are sound, there has been a personal service on the then the conclusion that the court may setdefendant, but the service is irregular, the tle jurisdictional questions is inevitable. Of jurisdiction of the court attaches, and the course, this rule cannot apply where there irregularity, while it may be taken advan-is no jurisdiction of the subject-matter, or tage of by objections seasonably interposed where there is no notice or summons, but in some direct manner does not render the it does apply in all cases where there is judgment void and subject to collateral at- some notice, or some writ and service, altack. * The same principles are ap- though defective.'" plicable in cases where the service is by publication. If there is actually some notice, an irregularity in the publication does not necessarily render the judgment void and cannot be taken advantage of collaterally;" and many authorities are cited.

The distinction is between cases where no service of summons is had upon the defendant and those cases where there is a service which is defective or irregular. In the case of Pennoyer v. Neff, 95 U. S. 721, 24 L. Ed. 565, which case was dismissed in the lower

In 17 A. & E. Ency. at page 1042, the editor considered the question and reached the same conclusion, collating the cases, where it is said, in effect, that the distinction between void and voidable judgments turns upon defective or wrong exercise of the power to render it, and a lack of power. In the former case the court is invested with the power to determine the rights of the parties, and irregularities or defects in the service, unless questioned in a direct proceeding, will be unavailable.

Therefore we conclude that in the case before us there was notice and the defect in the service is only an irregularity which cannot be questioned in a collateral proceeding, and the decree is affirmed.

This is an action, commenced by purchasers in an executory contract for the sale of land, against the sellers to recover damages for breach by the latter of the contract, on the ground that they would not convey to the plaintiffs the fee-simple estate as

BURNETT, J., took no part in this deci- agreed, and could not, on account of a defect

sion.

FRIENDLY et al. v. RUFF et al. (Supreme Court of Oregon. Feb. 6, 1912.) 1. APPEAL AND ERROR (§ 866*) — REVIEW – NONSUIT.

The party assuming the affirmative having the burden of proof, the appellate court must, on appeal from a judgment of nonsuit, examine the testimony in the record, and determine whether there is any evidence tending to support averments of the complaint.

in their title. It is substantially conceded in the complaint and answer that the contract was made about April 21, 1908; that the plaintiffs paid down $150, and on the 1st of June were to pay $1,350 more in cash, and execute a mortgage to the defendants for $4,000 remaining of the purchase price. The essential contention between the parties arises upon this allegation of the complaint: "That, after the execution of said contract on the 21st day of April, 1908, the plaintiffs found that the defendants were not the own§ers of the said land, but that the title to the same stood in the name of one Mary A. Weygandt, and that the said Mary A. Weygandt had given and granted to J. F. Peeler and S. B. Sutton the right and privilege to enter upon said land and premises, and build, construct, and maintain a canal or ditch upon and over the same, for the pur

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 3467-3475; Dec. Dig. 866.*]

2. EVIDENCE (§ 158*)-BEST EVIDENCE.

Where a letter referred to a written permit or license to go upon land, the letter was inadmissible; the written permit or license being the best evidence.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 471-526; Dec. Dig. § 158.*]

3. VENDOR AND PURCHASER (§ 134*)—TITLE-pose of conveying water to the land of the "INCUMBRANCE.' ""

An "incumbrance," within the terms of a contract for the sale of land free from all incumbrances, includes any right to or interest in the land to the diminution of its value, though consistent with the passage of the fee, or any adverse right or privilege which curtails the full and exclusive enjoyment of the land. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 250-254; Dec. Dig. 8

134.*

For other definitions, see Words and Phrases, vol. 4, pp. 3519-3527.]

said J. F. Peeler and S. B. Sutton; and the said J. F. Peeler and S. B. Sutton had entered into and upon said land, and were in possession of the same prior to and on the said 1st day of June, 1908, and were building and constructing thereon said canal or ditch, and refused to vacate or deliver possession of the said land to the plaintiffs or to the defendants; and the defendants refused to execute and deliver a warranty deed or convey title to the plaintiffs for said land, unless plaintiffs should take the same, subject to the claims, interest, and possession of the said J. F. Peeler and S. B. Sutton in and to said land, and their right to build, construct, and maintain the said canal or water ditch thereon; and the said defendants failed and refused, and ever since have failed and refused, to comply with their said contract, and to give the plaintiffs a clear title to and possession of said land and premises." The complaint further charges 5. VENDOR AND PURCHASER (§ 350*) — Ac- | that on May 19, 1908, the defendant G. C. TIONS FOR BREACH EVIDENCE SUFFI- Ruff secured title to the land, subject to the CIENCY. In an action for breach of a contract for rights of Peeler and Sutton, and afterwards, the sale of land with covenant of warranty, on October 17, 1908, conveyed it to third where plaintiff pleaded the adverse license of a parties, thus placing it beyond the power third person, evidence of the adverse possession of such person made out a prima facie of the defendants to comply with the terms of the agreement; that the defendants have

4. VENDOR AND PURCHASER (§ 349*) - AcTIONS FOR BREACH-PLEADING AND PROOF. In an action against a vendor of land, under a contract for its sale free from incum brances, where the complaint alleged that the vendor's predecessor in title had granted a license to third persons, who had entered upon the land, and were in possession of the same, prior to the contract, and refused to vacate, the purchasers were not necessarily confined to strict proof of a license, but might show an adverse interest, sufficient to impair the feesimple title.

[Ed. Note.-For other cases, see Vendor and Purchaser, Dec. Dig. § 349.*]

case.

[Ed. Note. For other cases, see Vendor and not returned the initial payment of $150, and Purchaser, Dec. Dig. § 350.*]

Appeal from Circuit Court, Multnomah County; John B. Cleland, Judge.

Action by H. M. Friendly and another against G. C. Ruff and another. From a judgment for defendants, plaintiffs appeal. Reversed and remanded.

that plaintiffs are damaged in the sum of $3,450; that being the difference between the contract price and the reasonable value of the land at the time the purchase was to be consummated. All the allegations of the complaint, charging a breach of the contract on the part of the defendants, are trav

Pac. 124, 1065. The same rule may be de- | 2. CORPORATIONS (§ 426*)-CONTRACTS-RATI

This is an action to recover for services WEHRUNG v. PORTLAND COUNTRY CLUB performed by plaintiff for defendant. The