Crary v. Benjamin Dye

• Decision Date: 24 February 1908
• Docket Number: No. 103,103
• Citation: 28 S.Ct. 360,52 L.Ed. 595,208 U.S. 515
• Parties: H. C. CRARY et al., Plffs. in Err., v. BENJAMIN H. DYE and William B. Childers
• Court: U.S. Supreme Court

208 U.S. 515

28 S.Ct. 360

52 L.Ed. 595

H. C. CRARY et al., Plffs. in Err.,

v BENJAMIN H. DYE and William B. Childers.

No. 103.

Argued January 13, 14, 1908.

Decided February 24, 1908.

Messrs. H. B. Fergusson and Elfego Baca for plaintiffs in error.

Mr. W. B. Childers for defendants in error.

Mr. Justice McKenna delivered the opinion of the court:

This is an action of ejectment for certain mining ground in the territory of New Mexico. Plaintiff in error claimed title by virtue of a sheriff sale in proceedings against Dye, one of the defendants in error, reinforced by certain declarations of the latter, which, it is contended, constitute an estoppel against him to assert the invalidity of the sale or claim of title thereunto. There have been two trials of the action. The first resulted in a verdict for plaintiff in error, which was reversed by the supreme court of the territory. 12 N. M. 460, 78 Pac. 533. The second trial resulted in a judgment for defendants in error, which was affirmed by the supreme court. This writ of error was then sued out.

The validity of the sale and an estoppel, based on the facts hereinafter referred to, were relied on by plaintiffs in error at the first trial, and they secured a verdict by the instructions of the court. The supreme court of the territory reversed it, adjudging the sale to be invalid on the ground that an alias attachment was not authorized by the laws of the territory. 12 N. M. 460, 78 Pac. 533. On the second appeal the court refused to review this decision, holding it to be the 'law of the case,' and not open to further review. It confined its consideration to the question of estoppel and decided the question adversely to the contention of plaintiffs in error, and affirmed the judgment against them. This writ of error brings up both questions, which we will consider in their order.

1. The statutes of the territory distinguish between original and ancillary attachments. Sections 2636 and 2721 of the Compiled Laws of New Mexico. There is no provision for an alias attachment, and it was hence concluded by the supreme court of the territory that alias attachment was not authorized, and that a judgment dependent thereon was void and could be attacked collaterally. The procedure in attachment is provided for in chapter 2 of the Compiled Laws of New Mexico, §§ 2686 to 2737, both inclusive. A summary of the applicable sections is inserted in the margin.

There is no provision for an alias attachment, and we think the implication of the statute is against it; certainly against it except upon filing a new affidavit and bond and a new publi- cation of notice. We have seen that an affidavit and bond are required and the proceedings are that when a defendant cannot be cited and his property shall be attached, if he did not appear within the first two days of the return term of the writ the court shall order publication to be made stating the amount of the demand, that his property has been attached, and that unless he appears at the next term judgment will be rendered against him and his property (property attached, § 2703) sold to satisfy the same. In other words, the attachment must precede the publication and constitutes the ground of publication. The summons to the defendant is through his property, and does not extend beyond it. The only consequence of his default is the sale of the property attached,—not some other property or property attached subsequently to publication. The publication cannot be ordered until the execution of the writ of attachment and its return. Section 2701. And to the same effect, as we have seen, in § 2702.

It is, however, contended by plaintiffs in error that subsection 24 of § 685 prescribed the procedure of publication of summons, not §§ 2701 and 2702, and that subsection 24 provides that, upon the filing a sworn pleading or affidavit showing cause for publication, the clerk shall give notice of the pendency of the action in some newspaper published in the county where the action is pending, which notice shall contain the names of the parties to the cause, the court in which it is pending, and a statement of the general objects of the action, and shall notify the defendant that, unless he enters his appearance before the day named therein, judgment will be rendered against him by default. If this contention be true it is difficult to account for §§ 2701 and 2702, and the scheme provided for the commencement of actions by attachment. Nor do we think the contention is supported by the fact that by subsection 175 it is provided that the act 'shall not affect actions of replevin or writs of attachment, except as to the form of the action,' and the amendment subsequently made, excepting from the operation of § 2685, 'proceeding by attachment.' The amendment was made, no doubt, to put the meaning of subsection 175 beyond any controversy. Besides, subsection 179 provides that 'the former practice in law and equity shall be retained in all cases and proceedings not comprehended within the terms and intent of this code.'

But even if plaintiffs in error be right about subsection 24, an alias attachment would not thereby be justified. The supreme court of the territory has expressly decided that an alias attachment is not authorized, and we have recently decided that the views of the local courts are very persuasive of the construction of the local statutes.

In the pending cause a petition in the attachment suit was filed in the district court of the county of Lincoln on the 5th of March, 1898, and on the same day an affidavit was filed, stating that the defendant could not be served 'in the ordinary way or in any way except by publication.' A writ of attachment was issued on the 8th of March. The sheriff made his return thereon on the 16th, certifying that he had levied upon and attached certain real estate, which was described, and 'that the defendant, Benjamin H. Dye, is not in my county, and supposed to be in the state of Ohio.'

The record shows an alias attachment issued on the 11th of May, 1898. The return of the sheriff shows that the alias writ came to his hands on the 27th of May and that he levied the same on the 28th of May, on the mining claim now in controversy.

The first publication of the notice was on the 17th of March, 1898, and the last on the 14th of April, 1898. Pasted to the affidavit stating those facts is a paper headed 'Notice of Suit,' by which Benjamin H. Dye is notified 'that a suit of assumpsit by attachment has been commenced against him,' and that unless he enter his appearance on the 4th of June, 1898, judgment would be rendered against him in said cause by default. The record contains no other publication or notice, but it leaves no doubt that it was upon that publication the default of the defendant was based. This is established by the motion for judgment, filed by the attorney in the case, which alleges service by publication and that the appearance day was June 4, 1898. This motion was filed August 19, 1898, but proof of publication was not filed until December 31, the day judgment was taken. The judgment recites that, the cause coming on to be heard, 'it is considered that the defendant is in default for failure to answer, and therefore the court hears the evidence of plaintiff, and assesses the damages on the two causes of action contained in the complaint at $143. And the court finds that the grounds of attachment are well taken and true in effect, and the defendant, having failed to deny same, it is ordered by the court, considered and adjudged that the attachment herein be sustained.'

The record shows only one affidavit and bond, but it is contended by plaintiff in error that, even if it be considered necessary that another affidavit and bond should have been filed to justify the alias writ, it must be presumed that they were filed, in the absence of evidence to the contrary; that the mere silence of the record is sufficient. To support the contention Voorhees v. Jackson, 10 Pet. 449, 9 L. ed. 490, and Cooper v. Reynolds, 10 Wall. 308, 19 L. ed. 931, are cited. But if a presumption may be entertained as to another affidavit and bond, a presumption cannot be entertained that another publication succeeded the alias attachment. The record shows the reverse. The publication was complete before the alias attachment was issued, and, therefore, the attachment referred to in the notice was the first attachment, not the alias attachment. As we have said, the attachment must precede the publication. The attachment virtually commences the action, the publication is the summons to the defendant, giving the court jurisdiction to apply the property attached to the satisfaction of the plaintiff's demand. It follows, therefore, that the court had no jurisdiction to render the judgment relied on, and that the plaintiffs in error acquired no title through sale under it.

2. The principle of estoppel is well settled. It precludes a person from denying what he has said or the implication from his silence or conduct upon which another has acted. There must, however, be some intended deception in the conduct or declarations, or such gross negligence as to amount to constructive fraud. Brant v. Virginia Coal & I. Co. 93 U. S. 326, 23 L. ed. 927; Hobbs v. McLean, 117 U. S. 567, 29 L. ed. 940, 6 Sup. Ct. Rep. 870. And in respect to the title of real property, the party claiming to have been influenced by the conduct or declarations must have not only been destitute of knowledge of the true state of the title, but also of any convenient and available means of acquiring knowledge. Where the condition of the title is known to both parties, or both have the same means of ascertaining the truth, there can be no estoppel. Brant v. Virginia Coal & I. Co. supra. These principles are expressed and illustrated by cases in the various text-books upon equitable rights and remedies. Does the conduct relied upon in the case at bar...