THE ELEMENT OF CHANCE IN LAND TITLE. 33 no occasion, in respect of any given statute, to argue that it is un- constitutional. It is sufficient for his present purpose to point out that such statutes as he has last mentioned are often drawn with- out an eye to the constitutional requirements; that it is only by aid of construction, if at all, that they can be held to be constitu- tional ; that it is only a matter of good fortune if they are consti- tutional ; that statutes which it is difficult to distinguish from them in phraseology have repeatedly been declared unconstitu- tional; and that such statutes, in actual conveyancing practice, pass current as freely as statutes unquestionably constitutional. Another familiar class of statutes affecting titles, are those which profess to bring in non-resident defendants by advertisement, and subject them to a personal judgment.^ It seems quite clear that a judgment under such a statute was not valid, out of the State in which it was rendered, even prior to the Fourteenth Amendment,^ or even within the State.^ Under such a statute, however, an execution title, perfect in form, might be got. The decision in Pennoyer v. Neff was rendered in 1877. In Massachusetts, — as, probably, in other States, — things nevertheless went on smoothly, and such judgments continued to be rendered, at least as late as 1880.* As late as 1885, a suit was maintained upon such a judg- ment^ So things stood in Massachusetts, until 1887, when it was held, on the authority of Pennoyer v. Neff and of Freeman v. Alderson,^ that a writ of error would lie to reverse such a judg- ment." The next year it was decided that such a judgment might be attacked, and treated as a nullity, collaterally.^ No one knows how many apparent titles have been made in different States, under statutes of this class, before and since the Fourteenth Amendment; nevertheless, most conveyancers, at least in the East, would have passed such a title, unless the ineffectuality of such statutes had been forced upon their attention by a decision in the courts of their own State. Indeed, nothing could be more significant of the disregard often paid to constitutional difficul- 1 See Mass. Gen. Sts., c. 123, §§ 23-28 ; c. 126, § 6 ; Pub. Sts.,c. 161, §§ 29-34 ; c. 164, § 6 ^/ seq. 2 D'Arcy v. Ketchum, 11 Howard, 165.
- D'Arcy v. Ketchum ; Pennoyer v. Neff, 95 U. S. 714.
- See McCormick v. Fiske, 138 Mass. 379.
8 McCormick v. Fiske, above cited. « 119 U. S. 185. ' Eliot z/. McCormick, 144 Mass. 10.
- Needham v. Thayer, 147 Mass. 536.
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