164 U.S. 502 (1896), 61, Willard v. Wood

Docket Nº:No. 61
Citation:164 U.S. 502, 17 S.Ct. 176, 41 L.Ed. 531
Party Name:Willard v. Wood
Case Date:November 30, 1896
Court:United States Supreme Court

Page 502

164 U.S. 502 (1896)

17 S.Ct. 176, 41 L.Ed. 531




No. 61

United States Supreme Court

November 30, 1896

Argued October 26-27, 1896




Remedies are determined by the law of the forum, and in the District of Columbia, the liability of a person by reason of his accepting a conveyance of real estate subject to a mortgage which he is to assume and pay is subject to the limitation prescribed as to simple contracts, and is barred by the application in equity, by analogy, of the bar of the statute at law.

The covenant attempted to be enforced in this suit was entered into in the District of Columbia between residents thereof, and although its performance was required elsewhere, the liability for nonperformance was governed by the law of the obligee's domicil, operating to bar the obligation unless suspended by the absence of the obligor.

If a plaintiff mistakes his remedy, in the absence of any statutory provision saving his rights, or where from any cause a plaintiff becomes nonsuit, or the action abates or is dismissed, and during the pendency of the action the limitation runs, the remedy is barred.

Courts of equity withhold relief from those who have delayed the assertion of their claims for an unreasonable time, and this doctrine may be applied in the discretion of the court, even though the laches are not pleaded or the bill demurred to.

Laches may arise from failure in diligent prosecution of a suit, which may have the same consequences as if no suit had been instituted.

In view of the laches disclosed by the record, that nearly sixteen years had elapsed since Bryan entered into the covenant with Wood, when, on March 10, 1890, over eight years after the issue of the first subpoena, alias process was issued against Bryan and service had; that for seven years of this period he had resided in the District; that for seven years he had been a citizen of Illinois as he still remained; that, by the law of Illinois, the mortgagee may sue at law a grantee, who, by the terms of an absolute conveyance from the mortgagor, assumes the payment of the mortgage debt; that Christmas did not bring a suit against Bryan in Illinois,

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nor was this bill filed during Bryan's residence in the District, and, when filed, it was allowed to sleep for years without issue of process to Bryan, and for five years after it had been dismissed as to Wood's representatives, Wood having been made defendant, by Christmas' ancillary administrator, as a necessary party; that in the meantime Dixon had been discharged in bankruptcy and had died; Palmer had also departed

this life, leaving but little if any estate; Wood had deceased, his estate been distributed, and any claim against him had been barred, and the mortgaged property had diminished in value one-half and had passed into the ownership of Christmas' heirs


(1) That the equitable jurisdiction of the court ought not to be extended to enforce a covenant plainly not made for the benefit of Christmas, and in respect of which he possessed no superior equities.

(2) That the changes which the lapse of time had wrought in the value of the property and in the situation of the parties were such as to render it inequitable to decree the relief sought as against Bryan.

(3) That without regard to whether the barring in this jurisdiction of the remedy merely as against Wood would or would not in itself defeat a decree against Bryan, the relief asked for was properly refused.

[17 S.Ct. 176] Charles Christmas, a citizen of Brooklyn, New York, sold and conveyed certain real estate, there situated, for the consideration of $17,000, to one Dixon, who, to secure $14,000 of the purchase money, executed, July 7, 1868, a bond to Christmas for twice that amount, payable July 7, 1873, with semiannual interest at the rate of seven percent per annum, and also a mortgage in fee of the property, with power of sale in case of default. Charles Christmas died, and January 20, 1869, Charles H. Christmas, his executor, and Elizabeth Gignoux, his executrix, two of his children, on dividing the estate of the deceased, assigned the bond and mortgage to their brother, Frederick L. Christmas, who died at Brooklyn, November 13, 1876, and of whose estate Charles H. Christmas was appointed administrator June 28, 1877. April 19, 1869, for the consideration of $17,000, Dixon conveyed the real estate to W. W. W. Wood in fee by a deed which declared that the conveyance was subject to the mortgage above mentioned,

which said mortgage, with the interest due and to grow due thereon, the party of the second part hereby assumes and covenants to pay, satisfy, and discharge, the amount thereof forming a part of the consideration herein expressed, and having been deducted

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This conveyance from Dixon to Wood was not executed by Wood, but he entered into possession of the mortgaged premises, paid interest on the mortgage dept up to February 1, 1874, and diminished the principal of the debt through two payments of $2,000 each, the last being made February 16, 1874.

By deed dated March 14, 1874, acknowledged March 17, 1874, and recorded in April, 1874, Wood, for the recited consideration of $17,583, conveyed the mortgaged premises, in fee, to Thomas B. Bryan,

subject, however, to a certain indenture of mortgage, made by the former owner of said property, Martin Dixon, to Charles Christmas, to secure fourteen thousand dolls. (14,000), dated July 7, 1868, recorded in the office of the Register of Kings County, New York, in Liber 784 of Mortgages, page 542, upon which principal sum there has been paid the sum of four thousand dolls. (4,000), the said Thos. B. Bryan hereby assuming and expressly agreeing to pay the balance with the interest at 7 per ct., he signing this deed in evidence of his said covenant.

The deed was signed by Bryan, as well as Wood and his wife, and at this date the mortgage debt had been overdue for about eight and one-half months.

By deed dated the same day, March 14, 1874, acknowledged March 14, and recorded March 21, 1874, and for a like consideration of $17,583, Bryan conveyed certain lots in Washington to Wood, in fee, subject to three certain encumbrances to secure an aggregate indebtedness of $7,500,

which said indebtedness with the interest thereon at ten (10) p'r c't p'r annum, the said party of the second part hereby expressly assumes, and he executes this deed, as one of the parties thereto, in evidence of his covenant to pay the same.

But the conveyance was not executed by Wood. The transaction between Wood and Bryan was an exchange of property, the property of Wood being encumbered with the debt of $10,000, with interest at seven percent, and that of Bryan with an indebtedness of $7,500 with interest at ten percent per annum, the consideration of the two being identical, and Wood paid to Bryan $2,000 in money to equalize the exchange. This

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transaction occurred in the District of Columbia, where Wood and Bryan resided and where the conveyances were executed and delivered. It appeared in evidence that Bryan resided in the District in and after 1874, in the State of Colorado from 1881 to 1883, and from 1883 in the State of Illinois.

On March 20, 1874, the Brooklyn property, [17 S.Ct. 177] with other real estate, was conveyed by Bryan to Waterman Palmer in fee by a deed bearing that date, acknowledged March 28, and recorded April 9, 1874, and executed by both Bryan and Palmer, subject to the mortgage, and reciting that the principal of the mortgage debt had been reduced to $10,000, and declaring that the balance and interest was "hereby expressly assumed by said Palmer." The copy of the Dixon bond shows payment of interest thereon for two years later than the period up to which interest was paid by Wood. Bryan paid neither principal nor interest upon the mortgage debt, nor was he shown to have taken possession of the property.

Charles H. Christmas, as administrator of Frederick L. Christmas, filed a complaint August 28, 1877, in the County Court of Kings County, for the foreclosure and sale of the mortgaged premises against Dixon, Palmer and wife, and some others averring that the codefendants of Dixon had or claimed to have some interest, acquired subsequent to the mortgage, and praying against Dixon only a personal judgment in case of deficiency of proceeds of sale. To this suit neither Wood nor Bryan was made a party, and none of the defendants appeared, but some were brought in by personal service of summons, and some by publication. November 13, 1877, the cause was sent to a referee, who reported the next day that the debt, with interest, amounted to $11,307.92, and on November 15, 1877, the report was confirmed and a sale of the mortgaged premises by or under the direction of the sheriff was ordered. The sheriff's report of sale was dated January 5, 1878, and represented that he had, on December 10, 1877, sold the mortgaged property for $5,000 to Charles H. Christmas, Elizabeth A. Gignoux, and Harriet Gignoux, to whom he had executed a deed (who were the heirs at law of Frederick L. Christmas); that the proceeds of sale applied

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to the payment of the mortgage debt were $4,556.61, and that the debt itself, with interest, amounted to $11,422.14; that the deficiency was $6,865.63, and that this sum "should be docketed as judgment against Martin Dixon, one of the defendants herein."

Some evidence was given of notices of a proposed sale in May, 1877, being mailed, in April, 1877, to Wood and Bryan at Washington, and of an intention to hold them for any deficiency, but Wood was dead many years before proofs were taken in this cause,...

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