Union Bank of Louisiana, Complainants and Appellants v. Josiah Stafford and Jeannetta Kirkland, His Wife, Defendants

• Decision Date: 01 December 1851
• Parties: UNION BANK OF LOUISIANA, COMPLAINANTS AND APPELLANTS, v. JOSIAH S. STAFFORD AND JEANNETTA KIRKLAND, HIS WIFE, DEFENDANTS
• Court: U.S. Supreme Court

53 U.S. 327 12 How. 327 13 L.Ed. 1008 UNION BANK OF LOUISIANA, COMPLAINANTS AND APPELLANTS, v. JOSIAH S. STAFFORD AND JEANNETTA KIRKLAND, HIS WIFE, DEFENDANTS. December Term, 1851

THIS was an appeal from the District Court of the United States for the District of Texas.

The facts are set forth in the opinion of the court, to which the reader is referred.

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It was argued by Mr. Hale and Mr. Coxe for the appellants, and Mr. Harris for the appellees.

The points made by the appellants' counsel were the following:——

IV. The matters of defense set up by Mrs. Stafford are not sufficient to prevent this court from pronouncing a decree against her. The first of her defenses consists of the bar of the statute of limitations of Texas, passed Feb. 5, 1841, which provides 'that all actions of debt grounded upon any contract in writing shall be commenced and sued within four years next after the cause of such action accrued and not after,' and 'that if any person against whom there is or shall be cause of action, is or shall be without the limits of this republic at the time of the accruing of such action, or at any time during which the same might have been maintained, then the person entitled to such action shall be at liberty to bring the same against such person or persons after his or their return to the republic, and the time of such person's absence shall not be accounted, or taken as a part of the time limited by this act. Hartley's Dig., §§ 2377, 2395.

1. This plea is not applicable to an equitable demand of this nature. The debt may be barred, and yet the right to foreclose subsist. Bank of Metropolis v. Guttschlick, 14 Pet., 20, 32; Thayer v. Mann, 19 Pick. (Mass.) 536; Baldwin v. Norton, 2 Conn., 163; Clark v. Bull's Ex'r., 2 Root (Conn.), 329; 1 Powell on Mort., 392 a. 396 b; Angell on Lim., 494, n. 1; Elmendorf v. Taylor, 10 Wheat., 152; Case of Cholmondeley v. Clinton, explained by Stewart v. Nichols, 1 Tamlyn, 207.

2. The fact that the bill was filed within four years after the

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removal of the defendants to Texas, is sufficient of itself to remove the bar; and the language of the 22d section of the act has always hitherto been construed to apply to strangers. Southerst v. Graeme, 3 Wills, 145; 5 Bac. Ab., 236; Dwight v. Clark, 7 Mass., 518; Bulger v. Roche, 11 Pick. (Mass.), 39, 40; Little v. Blunt, 16 Id., 363; Ruggles v. Keeler, 3 Johns. (N. Y.), 257; Chomqua v. Mason, 1 Gall., 344, 346; Estis v. Rawlins, 5 How. (Miss.), 258; Hysinger v. Baltzell, 3 Gill & J. (Md.), 158; Sissons v. Bicknell, 6 N. H., 557; Dunning v. Chamberlin, 6 Vt., 127; Case v. Cushman, 1 Pa. St., 241; King v. Lane, 7 Mo., 241.

3. The opposite construction given to the lst and 22d sections of the act by the Supreme Court of Texas, will not be followed by this court, because it would give the act an extraterritorial effect, is contrary to reason, and cannot apply to cases within the chancery jurisdiction of the United States. And this court has never held a less period than twenty years as sufficient to bar the enforcement of a trust or equitable demand. Reimsdyk v. Kane, 1 Gall., 380, 381; Boyle v. Zacharie, 6 Pet., 659; Robinson v. Campbell, 3 Wheat., 212; United States v. Howland, 4 Id., 108; Fletcher et al. v. Morey, 2 Story, 567; Gordon v. Hobart, 2 Sumn., 402; Flagg v. Mann, Id., 544; Thomas v. Hatch, 3 Id., 176; Bellows v. Peck, 3 Story, 434; Hughes v. Edwards, 9 Wheat., 489; Elmendorf v. Taylor, 10 Id., 162; Prevost v. Gratz, 6 Id., 481; Michoud et al. v. Giroud et al. 4 How., 561; Dexter et al. v. Arnold, 1 Sumn., 110; Gordon et al. v. Hobart et al., 2 Id., 401; Gould v. Gould et al., 3 Story, 536; Piatt v. Vattier, 1 McLean, 160, 162; Rhode Island v. Massachusetts, 15 Pet., 233.

4. The terms of the obligation and mortgage of 1841, show that a new cause of action accrued on the failure to pay each successive instalment, as they became due; and such a cause of action did therefore accrue within four years before filing the bill. 1 Pothier, Obl. Evans, 404; Baltimore Turnp. Co. v. Barnes, 6 Harr. & J. (Md.), 57; Angell on Lim., 105. And the running of the time was sufficiently interrupted by the proceedings upon the twelve months' bond of William M. Stafford against the mortgaged slaves, in February and March, 1845. Print. R., 350, 354, 440, 441, 444.

5. The complainants have used all the diligence in their power, under the circumstances of the case, to enforce their demand, and are not culpable for laches.

V. The defense of coverture is also insufficient, because by the laws of Louisiana, Mrs. Stafford was authorized to become surety for her husband's debts by renouncing her privileges; and by the charter of the bank, she was specially empowered to do

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so; and there is no satisfactory proof of her separate interest in the property.

Beauregard's Ex'rs v. Piernas and wife, 1 Mart. (La.), 294; Brognier v. Forstall, 3 Id., 577; Chappellon and wife v. St. Maxent's Heirs, 5 Id., 167; Perry v. Grebau, 7 Id., 489; Banks v. Trudeua, 2 Mart. (La.) N. S., 39; Trem e v. Lanaux's Syndic, 4 Id., 230; Drew v. His Creditors, Id., 659; Civ. Co. La., § 2412; Gasquet v. Dimitry, 9 La., 586; Act of La., March 27, 1835; Bank of La. v. Farrar and wife, 1 La. Ann., 49; Mechanics and Traders Bank v. Rowley, Id., 1847, 373; Farrar v. N. O. Gas-light Co., Id., 1847, 874; Bein v. Heath, 6 How., 223; Print. R., 309, 323, 324; Civ. Co. La., § 2403; Bertie v. Walker, Sheriff, 1 Rob. (La.), 431; Civ. Co. La., § 2355; Babin v. Brosset, 11 La., 59; Las e v. Dimitry, 7 Id., 479.

VI. The defense resting on the ground that the order of seizure and sale on the mortgage of 1841, was a merger of the debt is simply absurd; the mortgage itself being the judgment, and the order the mere mode of executing it. Code Pr. La., §§ 732, 733, 734.

VII. The defense set up in argument that the mortgage lien was discharged by the sale in 1843 to William M. Stafford, cannot be sustained; because, lst, the facts are not pleaded as constituting such defense nor for that object. 2 Dan. Ch. Pr., 815; Cline v. Beaumont, 13 Jur., 326.

2. Because the sale is not proved, the sheriff's return being fatally defective in not showing a compliance with the Code of Practice of Louisiana, in the particulars mentioned in the objections filed by the counsel for the complainants, and no act of sale having been produced. Patterson v. Gaines and wife, 6 How., 601; Code Pr. La., §§ 664, 665, 666, 667, 671, 681, 682; Lawrence, syndic, v. Bowman, 6 Rob. (La.), 21; Duke v. Routh, Ann. R., 1847, 385, 386; Wright v. Higginbottom, 10 Rob. (La.), 30; Code Pr. La., §§ 691-698; Dufour v. Camfrane, 11 Mart. (La.), 675, 706, 709.

3. Because a sheriff's sale for credit, on a twelve months' bond for the payment of the price, cannot, by the laws of Louisiana, or the Constitution of the United States, extinguish the debt or release the mortgage lien. Civil Co. La., §§ 2186, 2188; Pothier on Obl., Nos. 559, 564; Mulenbruch, Doct. Pand., § 475; Just. II., 29, 3; Partidas, V., 14, 15; Bouillo, syndic, v. Merle et al., 9 La., 216, 224; Pointz et al. v. Duplantier, 2 Mart. (La.), 178, 331; Williams v. Brent, 7 Mart. (La.) N. S., 205; Reboul's Heirs v. Behren et al., 9 La., 90; Turner v. Parker et al., 10 Rob. (La.), 154; Dunlap v. Sims, 2 La. Ann., 1847, 239; Const. U. S., art. 1, § 10; and the language of the case of Offut v. Hendsley et al., 9 La., 1, is readily explained, and only applies when the twelve months' bond is

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paid. Troplong, Comm. de Privileges, No. 996 et seq. compared with Nos. 720, 721; Civ. Co. La., § 3374; Code Nap., 2180; Dig., XX. 6 fr. 6, § 1, 2 (Ulpian); Mackeldey, Mod. Civ. Law, vol. 1, 399.

VIII. The objection to the want of M'Waters, William M. Stafford, and Thomas, as parties, is also unavailing, as their interest is not sufficiently proved, and they reside out of the jurisdiction of the court, and have not, although apprised of the pending of the suit, made themselves parties voluntarily. The act of Congress of Feb. 28, 1839, was intended to provide for all such cases, and introduces a more indulgent rule. Answer of Mrs. Stafford, Print. R., 122, 123; Story, 1 Eq. Pl., § 79, 135; Mallow v. Hinde, 12 Wheat., 193; Depositions of Thomas and M'Waters. Print. R., 378, 383; Act of Congress, Feb. 28, 1839, Ch., sec. 1 (15 Stat. at L., 321); Rules in Chancery, xlvii; McCoy v. Rhodes, 11 How., 41.

As to M'Waters, the conveyance in trust to him was not proved, and the trust property and beneficiary are both within the jurisdiction of the court; no decree is sought against him personally.

As to William M. Safford, he has parted with all the interest he ever had, and in fact he possessed none, never having paid the price bid for the slaves at the sheriff's sale.

As to Isaac Thomas, he sets up no interest, and is shown to have divested himself of all title. The Canal Bank appears to be the only party concerned under Thomas's purchase in 1840, and the rights of the two banks, which...