United States v. Insley

• Decision Date: 08 April 1889
• Parties: UNITED STATES v. INSLEY et al. 1
• Court: U.S. Supreme Court

130 U.S. 263

9 S.Ct. 485

32 L.Ed. 968

UNITED STATES v. INSLEY et al.¹

April 8, 1889.

Asst. Atty. Gen. Maury, for appellant.

BLATCHFORD, J.

This is a bill in equity, filed in the circuit court of the United States for the district of Kansas, by the United States against the heirs at law of Polly Palmer and the heirs at law and administratrix of Moses McElroy, seeking to redeem a parcel of land known as lot 1, in block 104, in the city of Fort Scott, in the state of Kansas, from a claim made thereto by the Palmer heirs under a mortgage. The bill was originally filed November 28, 1884. After a demurrer had been put in to it by two of the defendants an amended bill was filed, on July 22, 1885. Some of the defendants interposed a general demurrer to the amended bill, and on a hearing the demurrer was, on December 14, 1885, sustained, and the bill was dismissed. From that decree the United States has appealed.* The material facts set forth in the amended bill are these: On the 16th of October, 1869, the United States recovered a judgment at law, in the district court of the United States for the district of Kansas, for $2,000, against Moses McElroy and Charles Bull. Two executions were issued thereon, and were returned unsatisfied. On the 7th of August, 1869, McElroy and his wife executed a mortgage for $3,500 to Polly Palmer, on lots 1 and 3, in said block No. 104. On the 30th of May, 1871, Polly Palmer commenced a suit in a state court of Kansas against McElroy and his wife to foreclose the mortgage, and, on October 4, 1871, obtained a judgment of foreclosure for $3,764.16, which ordered that the property be sold to satisfy the mortgage. It was sold, and purchased by Polly Palmer. The sale was confirmed by the court and, on January 4, 1872, a sheriff's deed for the property was made to her, which was duly recorded. At the time the foreclosure suit was commenced, the United States marshal had made a levy on said property under an execution issued on the judgment of the United States, and the said lots 1 and 3 had been advertised to be sold on June 6, 1871. On that day lot 1 was sold to the United States, and on October 16, 1871, the district court of the United States confirmed the sale, and ordered a deed to be made to the United States. In the foreclosure suit, the United States was not made a party, and did not appear. At the time that suit was commenced, the judgment of the United States was a lien on lots 1 and 3. Polly Palmer died in November, 1872, and McElroy died in 1881. On October 30, 1883, the United States received a deed for lot 1 from the marshal of the district, based on the sale of June 6, 1871, in accordance with the order of October 16, 1871, and has been ever since June 6, 1871, the owner of lot 1, with full right of possession thereof, subject only to the right of the heirs at law of Polly Palmer. The amount due to the estate of Polly Palmer on the mortgage of August 7, 1869, and on the judgment of foreclosure, has been paid. The bill alleges that the United States offers to pay the amount, if any, due on the mortgage, in order to redeem the property, waives an answer on oath, and prays that an account be taken of the amount due; that lot 3 be first subjected to its payment; that an account be taken of the rents and profits of lot 1, and, if they have been more than sufficient to satisfy the mortgage debt, the defendants be decreed to pay the excess to the United States; and that the United States be permitted to redeem lot 1, and the defendants be adjudged to deliver up its possession to the United States. The decision of the circuit court, reported in 25 Fed. Rep. 804, proceeded upon the ground that, as the government in this case came into a court of equity, claiming the same rights as a private individual, and the case did not involve any question of governmental right or duty, the ordinary rules controlling courts of equity as to laches should be...