1
oswarn v. 1<AM1>MANN. 37
to pay $87 therefor; 20 per cent. cash, the balance to be paid at the
expiration of 50 years, but the interest on the deferred payment was
to be paid semi-annually, and, in case of default in the payment of
the interest as it accrued, then the deferred payment of the principal,
and all of the accrued interest, was to become due. The contract
and deed, as it is called, is in one paper, and there are apt words to
`make a good conveyance in fee to the purchaser; and still, the whole
instrument construed together, the same would better be described
as a contract and deed.
Conrad sold to W. Oswald, deceased, Oswald assuming the payment
of the unpaid balance of the purchase money, and was, as between
them, subrogated to all the rights, duties, and obligations of Conrad.
After the death of W. Oswald, the deferred payments not having been
made, the city of San Antonio instituted suit in the district court of
Bexar county, the object of which was to obtain a judgment for the
unpaid balance of interest, and to foreclose the lien retained in the `
deed and contract. In that suit J. B. Conrad and W. Oswald were
made defendants. After the death of W. Oswald, and before Septem-
ber, 1870, Mrs. Oswald and her daughter went to Germany, (they were
Germans,) and have not returned. The suit was instituted, as stated,
in the district court of Bexar county, and service was made by publi-
cation. Judgment was rendered in the case, and a judgment fore-
closing the vendor’s lien was entered, the land sold upon an execu-
tion, and order of sale issued upon the judgment, (no actual seizure
of the property was made, so as to bring the property into the custody
of the law.) One J. H. Kampmann became the purchaser. Kamp-
mann was stranger to the judgment, and defendant claims under the
Kampmann title. The sale_ to Kampmann was on the fourth day of
November, A. D. 1873, 12 years befo1·e the institution of this suit.
The property in the mean time has become of great value.
The plaintiff Mrs. Oswald was bound to know that the purchase
money for the land was not paid, as her deed recites and provides
for suit, and now, after this lapse of time, she comes into C0l]1`t,rELIId
asks that she may have these lands back. The incumbrance upon
the land has been discharged by the purchase. She suffered the
purchaser to rest securely for 12 years, and now demands that the
lands shall be decreed to her because the proceedings in the fore-
closure suit were not in strict conformity to the laws of the state,
A which provided for service by publication. I am aware of the rule
that when proceedings are instituted not in accordance with the
common law, viz., by actual service, that the provisions of the stat-
C ute are to be strictly constructed; and, further, of the proposition
that no state can give extraterritorial effect to its laws, this doctrine s.
is too well settled to require authorities, and will only cite Pcnnoyer
v. Ncj, 95 U. S. 714. And it may be questioned whether, had the
suit been for an ordinary debt, evidenced by a note or account, the r
~ judgment would not be void for want of service. Back df this rule,