1. A man who has neglected his private affairs and gone away
from his home and state for the purpose of devoting his time to the
cause of rebellion against the government cannot come into equity
to complain that his creditors have obtained payment of admitted
debts through judicial process obtained upon constructive notice
and on a supposition wrongly made by them that he had no home in
the state or none that they knew of.
2. Especially is this true when there is no allegation of want
of actual knowledge of what they were doing.
3. And still more especially true is it in Missouri, where the
statutes of the state allow a bill of review of decrees or
judgments obtained on constructive notice at any time within three
years after they are obtained, and the complainant has let more
than six years pass without an effort to have them so reviewed.
4. Allegations of general ignorance of things a knowledge of
which is easily ascertainable is insufficient to set into action
the remedies of equity.
At the beginning of the late rebellion, which broke out in 1861,
McQuiddy, a resident of Nodaway County, Missouri, and owning a farm
there, voluntarily entered the service of the Confederate states
under General Sterling Price, and followed the fortunes of that
officer and his army when they left Missouri. At this time there
were two mortgages on different parts of his farm, or instruments
of writing which the holders of them asserted to be mortgages.
These were due, and the holders
in May, 1862, and November,
1863, procured a decree of foreclosure of them. This
proceeding
Page 87 U. S. 15
was made in professed pursuance of a statute of Missouri,
regulating the subject of the foreclosure of mortgages, and which
authorizes an order of publication instead of an actual service
when the mortgagee alleges and the court in which the foreclosure
is applied for, or its clerk, is satisfied "that the place of
residence of the defendant is
unknown." The foreclosures,
therefore, so far as the records of them showed, were made on
constructive notices, and on allegations such as above stated.
McQuiddy also owed money, when he left Missouri, to a third
creditor, this debt being by a note unsecured. This creditor
proceeded to get his debt by a proceeding in attachment and in
professed pursuance of another statute of Missouri which authorizes
a writ in that sort of proceeding to issue whenever the plaintiff
files his petition setting forth his cause of action, with an
affidavit that he has good reason to believe and does believe, that
the defendant has absconded or absented himself from his usual
place of abode in this state, so that the ordinary process of law
cannot be served upon him. Such affidavit was made by the unsecured
creditor, and under it, in
November, 1863, judgment was
got -- a judgment, of course, like the other, on a constructive
notice, so far at least as the record of the proceeding showed.
On these three different judgments all parts of his farm were
sold, a sale of one part being in 1863 and of the others in 1864,
in sales following at no great intervals the dates of the
judgments.
By the Revised Statutes of Missouri, a party against whom
judgment has been rendered on constructive notice simply, may come
in at any time within three years afterwards and file a petition
for review.
*
In this state of things and of law, McQuiddy,
in July,
1871, filed his bill in the court below, against the
purchasers of the farm (one Ware, and others), and against their
vendees, to set aside the sales and to have possession again of the
property sold.
Page 87 U. S. 16
His bill attacked the jurisdiction of the court in all three
cases alike.
He averred that the orders of publication were based on false
statements, and that in one of the cases, proceeded in as in the
case of a mortgage, the instrument proceeded on was not a mortgage,
and that the proceeding was in truth a proceeding to enforce a lien
on lands, instead of a suit to foreclose a mortgage, and required
an affidavit of nonresidence to authorize the giving of
constructive notice; and that jurisdiction could not be acquired on
affidavit of unknown residence, the sort of affidavit made in the
case. He alleged further that his departure from the state was for
a temporary purpose and with an intention of soon returning; that
he left his wife at his domicile, and that copies of writs could
have been served on her, and that he neither absconded nor absented
himself from his usual place of abode in the sense of the statute,
nor was his residence unknown; that all these facts were known to
the parties in interest, including the respondents, who either
purchased the property at the sales, or derived title from the
person who did purchase.
By way of excuse for his want of diligence in his own affairs,
he alleged that the state of feeling was such against him in
Nodaway County, on account of the part he took in the rebellion,
that he could not with any sort of safety return to the county, and
that in 1863, he removed his family to Tennessee, where he had
since continued to reside. He also alleged, in continuation of this
excuse, that being absent from the state, though a resident of the
county when the proceedings were instituted to deprive him of his
rights, and no notice of the same having been given to any member
of his family he had not a day in court given him, and was in
ignorance of what was done until recently; and that as soon as
practicable after ascertaining that the said illegal proceedings
were had, he had taken steps to assert his rights.
The only charge of fraud in connection with the transactions
disclosed in the bill related to the falsity of the affidavits on
which the proceedings were based.
The complainant did not make any tender of money at
Page 87 U. S. 17
all; but he prayed that an account might be taken of what was
due on the instruments of debt; that an account might be taken also
of the rents and profits received by the vendees of the persons who
had bought at the judicial sale, and that he, the complainant,
might be allowed to redeem on payment of any balance.
The defendants demurred, and the circuit court sustained the
demurrer. A decree having gone accordingly, McQuiddy brought the
case here for review.
MR. JUSTICE DAVIS delivered the opinion of the Court.
In the view we take of this case, we are not required to wade
through the various statutes of Missouri, and the decisions of the
courts of the state, in order to determine whether or not the
proceedings in question are valid. The complainant is not, in our
opinion, in a position to invoke the aid of a court of equity to
decide that question. The bill presents the case of a man who chose
to neglect his private interests for the purpose of devoting his
time to the destruction of the government, complaining that his
creditors enforced the collection of their debts on a wrong theory
of his status, in consequence of entering the service of the enemy.
There is no pretense that the debts were not meritorious, or that
the judgments were entered for a larger amount than he owed. The
real ground of complaint is that he was not an absent or absconding
debtor, or a person whose residence was unknown, and was not,
therefore, subject
Page 87 U. S. 18
to the proceedings which were instituted against him. Whether
this be so or not it is easy enough to see in the anomalous
condition of affairs existing at the time in Missouri, that
creditors might honestly suppose that an individual leaving his
state to destroy the government under which his rights of property
were acquired, did not intend to return to it, and proceed to
collect their debts under that supposition. The inquiry is whether
a party acting in this way has stated such a case as entitled him
to equitable relief, because his creditors, who ought to have been
provided for before he left, mistook the condition he occupied, and
treated him as a person who had permanently abandoned his home.
There is no averment that he did not have
actual notice
of the proceedings against him in time to protect his rights. And
it is fair to infer in the absence of such an averment that it
could not be truthfully made. It is difficult to suppose, when he
moved his family to Tennessee, that he did not communicate with
friends in Missouri who were acquainted with the true state of his
affairs.
Besides, if the proceedings against him were irregular, why did
he not seek his remedy under the statutes of Missouri, which
concede to the party against whom judgment has been rendered on
constructive notice only the right to come in at any time within
three years and file his petition for review. If this had been done
and the state court had permitted the cases to be reopened for the
reasons set forth in the bill, his remedy would have been complete,
as the bill charges the purchasers at the sale with notice of all
irregularities. It cannot be said that there was no opportunity of
doing this, for the earliest judgment was in May, 1862, and both
the others in November, 1863, and the war was substantially over in
May, 1865. There is no averment of the want of this opportunity,
nor is the absence of it aided by the general allegation, without
specification of time or circumstance, that he could not with
safety return to Nodaway County on account of existing prejudices.
This might be true, and yet the opening of the judgments obtained
by an attorney, as his personal presence was not required for
that
Page 87 U. S. 19
purpose. It were easy enough before the three years expired to
communicate with St. Louis by letter, or even to go there, and it
is very certain that he could not have been under any apprehension
while there of being disturbed in the assertion of his legal
rights.
But if the proceedings, instead of being irregular and voidable,
are null and void, as they are characterized in the bill, the
remedy at law is complete, for there is in such a condition of
things, nothing in the way of the successful maintenance of an
action of ejectment which will result not only in the restoration
of the lands, but also their rents and profits.
Apart from all this, the maxim that he who seeks equity must do
equity in the transaction in respect to which relief is sought has
not been observed by this complainant. While admitting his
indebtedness and that it has existed for ten years or more, he does
not make a tender in court of what is justly due, although he is
asking the court to set aside the proceedings by which this
indebtedness was satisfied, on the ground of their absolute
nullity. The willingness to pay what is found to be due on the
adjustment of the accounts for rents and profits is not the sort of
offer required of a person in the situation of this
complainant.
Moreover, there has been an utter lack of personal diligence,
which is required in such a case as this in order to bring into
activity the powers of a court of equity. Equity always refuses to
interfere where there has been gross laches in the prosecution of
rights. There is no artificial rule on such a subject, but each
case as it arises must be determined by its own particular
circumstances. These proceedings were begun early in the war, and
yet no move is made to disturb them until July, 1871, more than six
years after hostilities ceased. Why this delay? The complainant
says he was in ignorance of them until recently, and that as soon
as he ascertained them, he took steps to assert his rights. Such a
general allegation will not suffice to provoke the interposition of
a court of equity. It will not do to remain willfully ignorant of a
thing readily ascertainable. There has been
Page 87 U. S. 20
free and uninterrupted communication between Tennessee and
Missouri since the war closed, and the courts everywhere accessible
for the prosecution of any cause of action. Besides, in the very
nature of things, the complainant must have known soon after it
occurred that an improved farm, once occupied by him, was in the
possession of adverse claimants. This was notice sufficient to put
him on inquiry, and this inquiry would have resulted in
ascertaining all the facts stated in the bill. There is no reason
given for the delay, nor any facts and circumstances on which any
satisfactory excuse can be predicated.
Here, then, is the case of a party engaging in the rebellion
without provision for his debts, to which there was no defense,
asking a court of equity, after the lapse of many years without
sufficient excuse for the delay, to interfere in his behalf because
his creditors adopted the wrong methods for the enforcement of
their claims against him. And this, too, without any specific
charge of fraud, except in the matter of the affidavits on which
the proceedings were founded.
Such a charge, under the circumstances, is too weak and
unsatisfactory to relieve the complainant from the consequences of
his own folly.
In any aspect of the case we think the demurrer was properly
sustained, and the decree of the circuit Court dismissing the bill
is therefore
Affirmed.
* Revised Statutes of 1855, p. 1280, §§ 13, 15,
16.
