, 18 FEDERAL mcroncrmz.
"It has been held that a mortgage suit to foreclose by barring the right of
redemption is personal. but that, so far as it is for the condemnation of prop-
erty to pay debt, it is mum. Courts, both stateand national, have fre-
quently spoken of the mortgage suit, in which there is the object of obtaining
an order of sale, as of the latter description. Though nominallyagainst per-
sons, such suits are to vindicate liens. They proceed upon seizure. They
treat property as primarily indebted, and, with the qualification above men-
tioned, they are substantially property actions. In the civil law, they are
styled · hypothecary actions,’ and their sole object is the enforcement of the
. lien against the res. In the common law, they would be different if chancery ~
, did not treat the conditional conveyance as a mere hypothecation. and the
creditor’s right as an equitable lien; so, in both, the suit is a real action, so
far as it is against property, and seeks the judicial recognition of a. property
· debt, and an order for the sale of the re.s·." . i
In Day v. Micou, 18 Wall. 160, the supreme court uses this language:
"In admiralty cases, and in revenue cases, a condemnation and sale generally
pass the entire title to the property condemned and sold. This is because the
thi.ng~condemned is considered as the odender or the debtor, and is seized in
entirety. ..But such is. not the case in many proceedings which are in rem.
Decrees of courts of probate or orphans’ courts,. directing sales for the pay-
ment of a deeedent’s debts, or for distribution, are proceedings in rem. So
are sales under attachments, or proceedings to foreclose a mortgage, quasi
proceedings in rem, at least. ”
And in the later and leading case of Pemwyer v. Nap', 95 U. S. 734, we
find the rule; thus stated: ` . ,
" It istrue that, in a strict sense, a proceeding in rem is one taken directly
· against property, and has for its object the disposition of the property, with-
out reference to the title of individual claimants; but, in a larger and more
general sensei the terms are applied to actions between parties where the di~
rect objectisto reach and dispose 'of property owned by them, or sonie inter-
est therein. Such are cases commenced by attachment against the property
of debtors, orinstituteed to partition real estate, foreclose a mortgage, or en-
force a lien. So far as they affect property in the state, they are substantially
_ i proceedings_m,rem in the broader sense which we have mentioned."
e The proceedings in question were essentially in rem. They were to
subject the property to the payment of the debt, and in no manner
to establish a. personal liability of the defendants. And, even if the
mortgagor himself was the sole defendant in such an action, it would be
» strange, indeed, if, by simply leaving the state, he could defeat a fore-
closure, "and permanently retain the equity of redemption. No such in-
ference can fairly be drawn from any well-considered case, state or federal.
With regard to the next objection, it may be conceded that notice to
the defendant is essential to divest-him of his rights and interests. But
the publication is the notice,—it is the equivalent tothe personal serv-
ice of a summons; and it is not pretended that there was any defect in
the publication in the case at bar. The defect alleged is in the aiiidavit
for publication. The statute as to publication then in force is section
49, c. 73, Laws 1869, and reads: = e
" When the defendant cannot be found within the state;-of which the re-
turn of the sheriff of the county in which the action is brought that the de-
fendant cannot be found in the county is prima facie evidence,—and,upon