Ward v. Todd

• Decision Date: 01 October 1880
• Citation: 103 U.S. 327,26 L.Ed. 339
• Parties: WARD v. TODD
• Court: U.S. Supreme Court

103 U.S. 327

103 U.S. 327

26 L.Ed. 339

WARD v. TODD.

October Term, 1880

ERROR to the Circuit Court of the United States for the Eastern District of Arkansas.

The facts are stated in the opinion of the court.

Mr. U. M. Rose for the paintiff in error.

Mr. Charles P. Redmond, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

This was a suit against Ward, the plaintiff in error, on a judgment in the Fayette Circuit Court of the State of Kentucky, and the only question is whether, in the record of the judgment sued on, it appears that the State court had jurisdiction to render a personal judgment against Ward. The facts are these:——

On the 17th of June, 1872, Ward executed to the firm of Todd & Rafferty his note for $10,733.28, payable two years after date, with interest at the rate of seven per cent per annum until paid, and secured it by a mortgage on certain property. Afterwards, on the 31st of July, in the same year, he gave his note to the same firm for $3,528, payable, with interest at the same rate, in one year from date, and secured it by mortgage on the same property. On the 8th of August, 1873, Todd, as surviving partner of the firm of Todd & Rafferty, filed a petition in the Fayette Circuit Court, in which he set forth the due execution of these two notes and mortgages and their respective liens on the mortgaged property. He also stated that the note of July 31 was due and unpaid, and that the one of June 17 was a subsisting debt but not due. He also set forth a purchase of the mortgaged property by him at tax sale for $55.09, and that the city of Lexington had a lien on the property for unpaid purchase-money. The notes and mortgages were filed as exhibits to the petition, and the prayer was for a judgment on the small note, which was due, for a sale of the mortgaged property to pay that note, and that the residue of the proceeds might be retained to satisfy the other note and the claim for taxes. Ward was served personally with process in the case Sept. 8, 1873. On the 17th of September Todd amended his petition by setting forth that he had paid the city of Lexington $680 in full for the amount due as purchases-money of the property, and asking that this sum might be paid out of the proceeds of any sale that should be made. After this, process was again issued and served personally on Ward, September 18. On the 19th of November a decree was entered in the cause by default, finding the amount due on the note of July 31 and the claim for taxes, and establishing the lien for the debt originally due the city. The lien under the mortgage to secure the note under date of June 17 was also recognized and established, and inasmuch as the property could not be sold in parts except to a limited extent, it was ordered that the whole be sold. On the 29th of November Ward appeared, and on his motion this judgment or decree was set aside and he had leave to answer, which he did, setting up, in effect, that the debt of June 17 was not due; that Todd had no lien on the mortgaged property for the amount he had paid the city of Lexington; that he was not entitled to foreclose any lien for taxes, as that was not due, and that the property...