Notice in In Rem Actions

Notice in In Rem Actions

A proceeding against property owes its owner the same notice that a proceeding against a person owes its defendant. Older doctrine gave the two kinds of action different rules. In an action against the person, personal service was traditionally considered essential to bind someone who had not submitted to the court's jurisdiction.¹ In an action against property, the common law employed a fiction: the law assumes that property is always in its owner's possession, and it proceeds on the theory that seizing the property will inform the owner of any proceedings authorized upon the seizure.² Seizure itself counted as notice.

The fiction rests on something real. An owner of tangible property usually arranges ways to learn of any direct attack on his possessory or proprietary rights, so the libel of a ship, the attachment of a chattel, or an entry upon real estate in the name of law may reasonably be expected to reach the owner promptly. When the state where the owner has located the property seizes it, publication or posting adds a further measure of notification.³ That reasoning supports a lighter rule only to the extent that the seizure itself warns the owner. It gives no reason to withhold a letter from an owner whose name and address the sender already holds.

Mullane first met the in rem label as an argument about the state court's power. The trust accounting, the argument ran, was a proceeding in personam, meaning one against persons. The decree touched no title to or possession of any res (the property before the court) and adjudged only the beneficiaries' personal rights to hold the trustee answerable, so under Pennoyer v. Neff the Surrogate's Court could not bind nonresident beneficiaries it had not served personally.⁴ The Court observed that it was not readily apparent how New York's courts would classify a proceeding with some features of each kind, and it refused to let the label decide the case. The requirements of the Fourteenth Amendment, it held, do not depend on "a classification for which the standards are so elusive and confused generally and which, being primarily for state courts to define, may and do vary from state to state."⁵ A notice rule tied to such a label would give a person more or less protection according to the name a state happened to give its procedure. Mennonite Board of Missions v. Adams later described Mullane as rejecting the premise that due process rights vary with whether an action is in rem or in personam.⁶ The state's interest in closing trusts under its supervision was so rooted in custom that it settled the court's power to determine the interests of resident and nonresident claimants alike, provided the procedure accorded "full opportunity to appear and be heard."⁷ Power was therefore settled, and what remained open was whether the procedure gave that opportunity, which is a question of notice.

Shaffer v. Heitner turned that insight into a rule that never mentions the label: property cannot be subjected to a court's judgment unless reasonable and appropriate efforts have been made to give its owners actual notice of the action.⁸ The Court rested the rule on Schroeder, Walker, and Mullane, and it recognized, contrary to Pennoyer, that an adverse judgment in rem directly affects the owner by divesting him of his rights in the property before the court.⁹ The point is about stakes. A judgment that strips an owner of land does the same harm as a money judgment against the owner, so the owner's interest in learning of the proceeding is the same whatever name the court gives it. Whether the forum may reach the property or the person at all, which turns on minimum contacts and on fair play and substantial justice, is a separate question about the court's power.¹⁰ The words "efforts ... to give ... actual notice" describe what the sender must attempt, not a guarantee that the notice arrives, because certain success is not constitutionally required even though certain failure will not be tolerated.¹¹

Two of the decisions Shaffer relied on show the same yardstick measuring notice to a property owner that measures notice to a person.¹² The Court has adhered unwaveringly to Mullane since it was announced.¹³ In Schroeder v. City of New York, publication in local papers was held insufficient notice to a landowner, and a mere letter to each owner would have done the job.¹⁴ In Walker v. City of Hutchinson, a newspaper notice of condemnation was inadequate because the landowner's name was known to the city and appeared in its official records.¹⁵ Condemnation acts directly on land, the setting where seizure plus publication once sufficed, and still the question was whether the city had used the means a sender who wanted to inform the owner would use. The records gave the city the owner's name, and a letter was available, so the excuse for publication was gone. That is the known-parties reasoning of Mullane carried onto land: parties whose names and addresses are known or reasonably ascertainable must be notified by the best practical means, such as mail.¹⁶ Notice of a reasonable kind is therefore required in proceedings against property as in proceedings against persons, and no rule presumes that an owner already knows what is happening to the property.¹⁷ Service of a kind that satisfies due process "cannot be dispensed with even in the cases of judgments in rem."¹⁸

Posting and publication still do real work in proceedings against property, within limits. A state may assume that someone who left tangible property in the state either abandoned it, so that the proceeding deprives him of nothing, or left a caretaker under a duty to tell him it is in jeopardy.¹⁹ For persons missing or unknown, an indirect and even probably futile means of notification is all the situation permits, and the Court has approved publication as a customary substitute there.²⁰ Mullane itself draws the line. Publication failed for the known beneficiaries, because mail was clearly more likely to inform them. For the unknown beneficiaries it sufficed, not because it was likely to inform them, but because no other technique was more likely to give them actual notice.²¹

Both boats face the same proceeding and the same standard. They differ in what the county knows. The classification of the action appears in neither answer.

A fact pattern that calls the action in rem or reports that the court attached the property hands you a label, and the label settles nothing about notice. The usual error is to reason that a proceeding against property needs only a posted or published notice. Ask instead what the sender knew: whether the owner's name and address were known or reasonably ascertainable, whether a seizure would itself have warned an owner of tangible property, and whether anything better than publication was practicable.