When a person whose equity of redemption in mortgaged real
estate is foreclosed, rests inactive for eleven years with full
knowledge of the foreclosure and of the purchaser's rights claimed
under it, and of his own rights, and with nothing to hinder the
assertion of the latter, and then files a bill in equity to have
the. foreclosure proceedings declared void for want of proper
service of process upon him, this Court will at least construe the
language of the returns so as to sustain the legality of the
service, if that can reasonably be done, even if it should not
regard it as too late to set up such a claim.
The Court stated the case as follows:
On September 29, 1890, appellant filed his bill in the Circuit
Court of the United States for the District of Kentucky, the object
of which was to set aside a commissioner's deed to defendant,
executed years before in pursuance of certain proceedings in the
district court of the United States for that district. The facts as
alleged were these: prior to May 2, 1879, the plaintiff, his
mother, sister, and brother, were the owners each of an undivided
one-fourth of a lot in the City of Louisville, which lot was
subject to a lease from the four owners to Thomas Slevin, who, as
tenant, had built thereon houses of great value. On January 9,
1868, plaintiff had given to Thomas Slevin his note for $2,000,
payable in two years, and had secured the same by a mortgage of his
undivided one-fourth of said property. Interest thereon was paid
regularly until January 9, 1869, by the
Page 142 U. S. 237
application of a part of the rents coming to plaintiff under the
lease, but after that date, Slevin failed and refused to so apply
the rents, but claimed to set them off against goods sold to
plaintiff. On February 21, 1877, Slevin was adjudged a bankrupt in
proceedings in the United States district court, and Stephen E.
Jones was elected his assignee. On February 5, 1878, Jones, as
assignee, commenced a suit in the same court to foreclose the
mortgage, in which suit, besides plaintiff and his wife, the other
joint owners were made parties defendant. In that suit, a decree of
foreclosure was entered on May 22, 1879, and on August 11, 1879,
the property was sold by R. H. Crittenden as special commissioner,
and, the sale having been confirmed on September 30, 1879, a deed
was made to the purchaser, the present defendant, who thereupon
took possession, and has ever since collected the rents and
profits. In respect to the service of process on plaintiff, the
bill alleged as follows:
"Your orator further says that he never appeared or answered in
said cause, and no one appeared for him, as by the orders and
record therein, still remaining in the district court aforesaid,
fully appears. Nor was there any service of the subpoena upon him
otherwise than that the following return appears upon the subpoena
issued in said cause, and which is on file with the papers
thereof:"
" J. C. Hays, S.H.C., is hereby appointed special bailiff to
execute the within subpoena on J. S. Martin and Mary A. Martin,
February 13, 1878."
" R. H. CRITTENDEN"
"
U.S. Marshal"
" Executed the within spa. on J. S. Martin and Mary A. Martin by
delivering a copy to each in person, February 14th, 1878."
" R. H. CRITTENDEN"
"
U.S. Marshal"
" J. C. HAYS"
"
S.H.C., Special Bailiff"
Page 142 U. S. 238
"And that there was no such service also appears from the record
and papers in said cause still remaining therein; yet, although
your orator never appeared or answered in the cause, and was never
subpoenaed to answer therein, the complainant in said cause,"
etc. Upon these facts, the bill prayed for a decree setting
aside the commissioner's deed and for an accounting as to the rents
and profits received by the defendant. A demurrer thereto was
sustained, and the plaintiff electing to stand by the bill, a final
decree was entered dismissing it. From this decree plaintiff
appealed to this Court.
MR. JUSTICE BREWER, after stating the facts as above, delivered
the opinion of the Court.
The contention of plaintiff is that the return on the subpoena
is wholly worthless, and shows no service, and that the decree and
decretal sale, based on such a return alone, are null and void. The
following are the two rules in equity which regulate the manner of
service:
"
Rule XIII"
"The service of all subpoenas shall be by a delivery of a copy
thereof by the officer serving the same to the defendant
personally, or by leaving a copy thereof at the dwelling house or
usual place of abode of each defendant with some adult person who
is a member or resident in the family."
"
Rule XV"
"The service of all process, mesne and final, shall be by the
marshal of the district, or his deputy or by some other person
specially appointed by the court for that purpose, and not
otherwise. In the latter case, the person serving the process shall
make affidavit thereof."
It is insisted that the service in this case was not made by the
marshal or his deputy, but by J. C. Hays, who was not a
Page 142 U. S. 239
person appointed by the court for the service of this process
and who made no affidavit of service. Before considering the
question of service, a preliminary matter is worthy of mention.
This is an application to a court of equity to set aside deliberate
proceedings of a court of superior jurisdiction, and is made more
than eleven years after the matters complained of took place. There
is no allegation that the subpoena was not in fact delivered to the
plaintiff, or that he was ignorant of the proceedings in court or
of the possession taken and held by the defendant. While the bill
alleges that plaintiff was at the time of the filing a citizen of
Kansas, it does not show how long he had been such. It is averred
that the plaintiff's mother, sister, and brother, joint owners with
himself of the property, were made parties defendant to the
foreclosure proceedings, and it is not averred that they were not
duly served with process. It is shown that the defendant entered
into possession immediately after the sale, and has continued in
possession, receiving the rents and profits. From what is stated in
the bill as well as from what is omitted, it is a fair inference
that this plaintiff received the subpoena at the time the original
suit was commenced; that he was a ware of all the proceedings in
the court; that he knew of the change in possession, and that he
remained in Louisville for years thereafter, with full knowledge
that the defendant had the possession, claimed it under the decree,
supposed he was owner, and received the rents and profits as owner,
and yet during all those years made no complaint and took no steps
to assert any rights as against the decree and sale. Now it is a
rule of equity that an unreasonable delay in asserting rights is a
bar to relief. A familiar quotation from Lord Camden in
Smith
v. Clay, 3 Bro.Ch. 638, is that "nothing can call forth this
court into activity but conscience, good faith, and reasonable
diligence." Is not the delay disclosed by this bill such laches as
to defeat plaintiff's claim? For eleven years, he was inactive and,
as may be fairly inferred from the bill, with the full knowledge of
his rights, and nothing to hinder their assertion. No excuses for
this are given; the bill is absolutely silent as to any reasons for
delay.
Page 142 U. S. 240
But if this long delay will not of itself bar plaintiff's claim,
it at least compels any reasonable construction of language which
will sustain the decree. Now it is not averred in the bill that
service was not made by the marshal, nor that Hays was not a
general deputy. What relations he sustained to the marshal, what
position he held under him, are not disclosed otherwise than by the
return on the subpoena. While from that it may be inferred that he
was a special bailiff, with only such powers as were given by the
designation written on the subpoena, yet it is consistent with all
that appears that he was also a general deputy, who was by the
marshal designated for this special service. More than that, it is
a fair question from the return as to who in fact made the service.
The return is signed "R. H. Crittenden, U.S. Marshal. J. C. Hays,
S. H. C., Special Bailiff," and not "R. H. Crittenden, U.S.
Marshal. By J. C. Hays, S. H. C., Special Bailiff." If it were not
for the designation above the return, it would not be doubted that
the latter was to be construed as showing service by the marshal,
and the name of the special bailiff would be disregarded as
surplusage. Giving to the designation all the force that fairly
belongs to it, it is a reasonable construction of the return that
the service was made by the marshal and the bailiff, either jointly
or severally. And if severally, then on the two defendants,
respectively, in the order in which they are named, which would
make that on this plaintiff service by the marshal himself.
Further, the district court is one of superior jurisdiction, in
favor of the validity of whose proceedings, when collaterally
attacked, is every intendment. Its jurisdiction in any case will be
presumed unless it appears
Page 142 U. S. 241
affirmatively on the face of the record that it had not been
acquired. Putting, therefore, these things together, to-wit, the
unexplained delay, the reasonable inferences from what is stated
and what is omitted, the presumptions in favor of jurisdiction, and
the different constructions of which the language of the return is
susceptible, we are of the opinion that the ruling of the circuit
court sustaining the demurrer to the bill was correct, and its
decree is
Affirmed.
