When, in Colorado, the agent of an absent defendant, upon whom
process had been duly served, appeared and consented to the entry
of a judgment against the defendant before the time for filing
answer had expired, and no
Page 110 U. S. 184
fraud was shown, held, on an attempt to attack the judgment
collaterally by reason of entry before the time for answering had
expired, that the court would make all necessary presumptions to
sustain it.
When a judgment creditor in Colorado, prior in lien, received
from the sheriff a certificate of sale of real estate sold to the
creditor on execution issued on the judgment to satisfy the debt,
which certificate recited that the property was subject to an
execution issued on a judgment which was in fact junior in date to
that under which it was sold,
held that the recital was a
mistake of which a person claiming title under a conveyance from
the judgment debtor and redemption from the junior judgment could
not take advantage.
In order to obtain equitable relief against a judgment alleged
to have been fraudulently obtained it must be averred and shown
that there is a valid defense on the merits.
This was a suit in equity. The facts disclosed by the pleadings
and evidence were as follows:
From September 1, 1880, until December 1, 1882, the Brittenstine
Silver Mining Company, a corporation organized under the laws of
the State of New York, was the owner of twelve mining claims and a
tunnel site situate in Chaffee County, in the State of Colorado.
These claims were in a group, and some of them intersected and
overlapped each other, and the tunnel site extended across them.
John B. Henslee was the authorized agent of the company under the
laws of Colorado upon whom service of process against the company
could be made, and he was also a large stockholder therein, and
attended, without compensation, to some of the business of the
company.
The company became embarrassed, and suits were brought against
it by its creditors in January, 1882. It owed Henslee $1,500 for
money advanced to it by him. Henslee assigned his claim to the
defendant Joseph R. Crow in part payment of money due from him to
Crow, who brought suit on the claim in the county court of Lake
County, Colorado. The summons was served on Henslee, as state
agent, on January 9, 1882, and four days thereafter he appeared in
open court, and, as the record of that case states, as general
agent of the company, consented to the submission of the case, and
judgment was thereupon rendered against the company in favor of
Crow. A transcript of this judgment was filed with the Recorder of
Chaffee County on January 17, 1882, and thereupon it became
Page 110 U. S. 185
a lien upon the property of the company in that county, and was
the oldest and best lien thereon.
George M. Robinson recovered a judgment against the company in
the same court for $346.35. It became a lien on January 20, 1882,
and was the second lien on the property of the company. Henslee
gave notice of these judgments to the officers of the company in
New York, and, upon the promise that the company would pay them,
the judgment creditors agreed to a stay of execution, and in
consequence no execution was issued on either of them until four
months after their rendition.
On June 17, 1882, the property of the Brittenstine Mining
Company was sold to Joseph R. Crow for the amount of the judgment
in his favor on an execution issued thereon, and was again sold
July 8, 1882, to George M. Robison for the amount of the judgment
in his favor and upon an execution issued thereon. Certificates of
sale were delivered to each of the purchasers and duly recorded in
the recording office of Chaffee County. The certificates specified
the time within which the property could be redeemed, which was six
months from the date of the sales respectively, to-wit, from the
sale to Crow on December 17, 1882, and from the sale to Robison on
January 8, 1883. The certificate given to Crow stated that the sale
to him was subject to the sale to Robison.
The officers and directors of the company in New York received
notice from Henslee of these judgments and sales, and made efforts,
without success, to raise money to pay off the liens. The judgments
and certificates of sale were brought up by the defendants, L. C.
Wilson, H. M. Noel, J. L. Loker, W. N. Loker, James Streeter, and
O. H. Simons. They appear to be the only defendants who have any
interest in this suit.
While the events above mentioned in reference to this property
were happening in Colorado, the Supreme Court of the City and
County of New York, in a suit therein pending against the company
on May 29, 1882, appointed a receiver, to whom, on October 23,
1882, the company, by order of the court, conveyed all its
property. At a sale made by the receiver about December 1, 1882,
the appellant, John E. White,
Page 110 U. S. 186
became the purchaser of the property of the company in Chaffee
County, Colorado, and on December 5 received a deed therefor from
the receiver, and on December 6 a deed from the company. At the
time of his purchase, White knew of the liens against and sales of
the property, and that the time for redemption was about to expire.
He redeemed the property from the sale to Robinson before the time
for redemption expired and paid off two judgments junior to those
above mentioned. He however failed and refused to redeem the
property from the sale to Crow within the time limited for
redemption. After the time had expired White offered to redeem from
the Crow sale, but the appellees refused to allow the property to
be redeemed.
Thereupon, on February 12, 1883, the appellant, John E. White,
filed the bill in this case, to which Henslee, Crow, and the
above-mentioned purchasers of said judgments, and Robert Ray, the
Sheriff of Chaffee County, were made parties. The bill prayed that
Ray, the Sheriff of Chaffee County, might be enjoined from making a
deed to the owners of the certificate of sale issued to Joseph R.
Crow, and that the certificate might be declared null and void, and
that upon payment by the complainant of the amounts found due to
Crow on his claim against the property, he might be compelled to
execute a deed of release to him for said property.
The only questions controverted on the final hearing were
whether or not the judgment in favor of Crow and the certificate
issued upon the sale made to him should be declared void, and
whether the Sheriff of Chaffee County should be enjoined from
making a deed to him for the property in question, and whether the
owners of the judgment and lien of Crow should, upon payment
thereof, execute deeds of release to the appellant for said
property.
The circuit court decided all these questions in the negative,
and directed that the defendants in interest should repay to the
complainant the sums paid by him to discharge the liens upon said
property, and, upon such payment, decreed that the bill should be
dismissed. This appeal brings that decree under review.
Page 110 U. S. 187
MR. JUSTICE WOODS delivered the opinion of the Court.
The first assignment of error which we shall notice is that the
circuit court erred in not declaring the judgment recovered by
Joseph R. Crow against the Brittenstine Silver Mining Company void,
first because fraudulently obtained and secondly because the court
was without jurisdiction to render it.
We have been unable to find in the record any support for the
contention that the judgment was fraudulently obtained. All the
alleged facts set out in the bill on which the charge of fraud is
based are clearly disproven by the testimony. But if the
Brittenstine Silver Mining Company were itself assailing the
judgment as fraudulently procured, it could not have it enjoined in
equity unless it could aver and prove that it had a good defense
upon the merits.
Hair v. Lowe, 19 Ala. 224;
Pearce v.
Olney, 20 Conn. 544;
Ableman v. Roth, 12 Wis. 90.
There is no pretense that the company had any defense. It has never
complained of the judgment. On the contrary, it promised to pay it,
provided execution were stayed, and upon its promise of payment
execution was stayed. Much less, therefore, does it lie in the
mouth of appellant to complain of fraud in the obtaining of the
judgment. On this point he has no standing in court.
The complainant insists, however, that the judgment was void
because, on the fourth day after service of summons, and before the
time for filing the answer had expired, Henslee appeared in court
and consented that judgment might be entered in favor of Crow
against the Brittenstine Mining Company for the sum due on the
obligation upon which the suit was brought, and judgment was
thereupon accordingly entered.
The Civil Code of Colorado, § 46, provides as follows:
"From the time of service of summons in a civil action, the
court shall be deemed to have acquired jurisdiction."
The summons in this case gave full and particular notice to
Page 110 U. S. 188
the defendant of the cause of action. It was served, as clearly
appears from the return, in the county where the suit was brought.
It was served on Henslee as the person appointed to receive service
of process for the company. It is not pretended that it was not
served in the county where the company had its principal office, or
where its principal business was carried on, or that Henslee was
not the right person on whom service should have been made. The
service was regular and effectual.
The court therefore had jurisdiction of the parties. It had
jurisdiction of the subject matter, and the judgment which it
rendered was within the jurisdiction conferred on it by law. The
judgment which it rendered recited that Henslee was the general
agent of the company, and as such consented that judgment might be
entered against the defendant. The law, therefore, when the
judgment is questioned, presumes that the court was satisfied by
proof that the agent had authority to give the consent of the
company to the rendition of the judgment. The fact that he was such
general agent and authorized to consent to the entry of judgment is
not denied in the bill, nor is there any proof in the record to
show that he was not the agent of the company, fully authorized to
consent to the rendition of the judgment.
But if he was not such agent, the question arises whether the
rendition of the judgment before the time for filing defendant's
answer had expired renders the judgment void. We are of opinion
that it does not; that its rendition was simply erroneous, and
nothing more. The, court having jurisdiction to render the judgment
and having rendered it, the law, when the judgment is collaterally
attacked, will make all presumptions necessary to sustain it.
Grignon's Lessee v.
Astor, 2 How. 319. The defendant, being in court,
was bound to take notice of its proceedings and might have
corrected the error at any time during the term. It did not move to
set the judgment aside. It filed no answer. The presumption,
therefore, which the law makes is either that it consented to a
submission of the case before the time for answer expired or that
it subsequently waived the error by not seeking to correct it.
Page 110 U. S. 189
"It is of no avail," said the Court in
Cooper v.
Reynolds, 10 Wall. 308,
"to show that there are errors in the record unless they be such
as prove that the court had no jurisdiction of the case, or that
the judgment rendered was beyond its power. This principle has been
often held by this Court and by all courts, and it takes rank as an
axiom of law."
And in
Cornett v.
Williams, 20 Wall. 226, it was declared that
"The settled rule of law is that, jurisdiction having attached
in the original case, everything done within the power of that
jurisdiction, when collaterally questioned, is to be held
conclusive of the rights of the parties unless impeached for
fraud."
See also Kempe's Lessee v.
Kennedy, 5 Cranch 173;
Thompson
v. Tolmie, 2 Pet. 157;
Voorhess
v. Bank of the United States, 10 Pet. 449;
Grignon's Lessee v.
Astor, 2 How. 319;
Florentine
v. Barton, 2 Wall. 210;
McGoon v.
Scales, 9 Wall. 23;
Glover v. Holman, 3
Heiskell 519;
West v. Williamson, 1 Swan (Tenn.) 277.
The judgment therefore cannot be declared void. It could not be
successfully attacked in this collateral way even by the defendant,
mush less by one not a party to it. We must assume the judgment to
be valid and binding until reversed in a direct proceeding.
The next contention of the appellant is that the sale made to
Crow under his judgment is void because the property was sold in
bulk and not in parcels. This contention is based on the statute of
Colorado which provides as follows:
"When any property, real or personal, shall be taken in
execution, if such property is susceptible of division, it shall be
sold in such quantities as may be necessary to satisfy such
execution and costs."
General Laws, c. 53, § 1416, p. 525.
There are two sufficient answers to this objection to the sale.
In the first place, there is not a word of proof in the record to
show that any part of the property would have sold for a sum
sufficient to satisfy the execution and costs.
Page 110 U. S. 190
On the contrary, the record shows that the entire property was
sold on execution four different times during the year 1882, and
that in no instance did it bring more that the debt and costs, and
that it brought more at the sale which is attacked in this case
than at any of the others. At one sale it only brought $346; at
another it only brought half the debt. At every sale it was bought
in by the judgment creditor.
In the second place, the evidence shows that at the sale which
is complained of in the bill the sheriff first offered the claims
singly and separately and received no bids. He then offered and
sold them
en masse. These facts make it unnecessary to
inquire whether the objection to a sale
en masse could be
successfully made after the time for redemption had passed, where
both the party making the objection and the party claiming under
the sale were strangers to the judgment.
The next contention of appellant is that the certificate issued
by the sheriff to Joseph R. Crow on the sale made to him June 17,
1882, recited that said sale was made" subject to an execution in
favor of George M. Robinson," and that appellant having redeemed
from what was thus recited to be the elder lien, the title thus
acquired by him would be superior to that based on what he had
reason to suppose was the younger lien of Crow.
It is not disputed that in fact the lien of the judgment in
favor of Crow was the older lien. It became a lien on January 17,
1882, when the transcript was filed in the office of the Recorder
of Chaffee County. § 215, Civil Code of Colorado. The levy of the
Robison attachment was not recorded until January 20, 1882, and it
acquired a lien upon the property on that day. Civil Code, § 98.
The sale on the judgment in favor of Crow took place June 17 1882,
the sale on the judgment in favor of Robison took place on July 8,
1882. These matters were all of public record, and were made such
that all parties interested might have notice. The appellant cannot
derive any advantage from the mistake in the sheriff's certificate,
which the public records of the county corrected, and for which
neither Crow nor his vendees were responsible.
Page 110 U. S. 191
But even if the judgment in favor of Robison had been the senior
judgment, it would not aid the case of appellant. As grantee of the
defendant company, he would be required to redeem from all the
sales. He could not acquire title to the property by redeeming it
from a sale on the oldest lien, for in Colorado a redemption annuls
the sale. The General Laws of Colorado, c. 52, p. 527, § 1419,
provides as follows:
"On such sum," the redemption money "being paid as aforesaid" to
the purchaser or sheriff, "the said sale and the certificate
thereupon granted shall be null and void." The appellant might as
well claim that the payment of the oldest encumbrance on real
estate discharged all the subsequent encumbrances.
We are of opinion that there is no merit in the appellant's
case. The judgment in favor of Crow against the Brittenstine Silver
Mining Company was a valid judgment, rendered on a just demand; it
was obtained without fraud; it has never been assailed, directly or
indirectly, by the judgment debtor. The sale made under it was, so
far as the record shows, fair and regular; the time within which
the property sold could be redeemed was shown by the public
records, it was well known to the agent of appellant. The appellant
failed and refused to redeem the property within the time limited
by law, and thereby lost his right to redeem unless he is able to
show some fraud or wrong on the part of the defendants by which a
redemption was prevented. Without showing, he is not entitled to
relief in equity.
Hay v. Baugh, 77 Ill. 500. Nothing of
the kind has been shown. We find no error in the record.
The decree of the circuit court is therefore
affirmed.
