White v. Crow

• Decision Date: 21 January 1884
• Citation: 110 U.S. 183,4 S.Ct. 71,28 L.Ed. 113
• Parties: WHITE v. CROW and others. 1
• Court: U.S. Supreme Court

110 U.S. 183

4 S.Ct. 71

28 L.Ed. 113

WHITE v. CROW and others.¹

January 21, 1884.

This was a suit in equity. The facts disclosed by the pleadings and evidence were as follows: From September 1, 1880, until December 1, 1882, the Brittenstine Silver Mining Company, a corporation organized under the laws of the state of New York, was the owner of 12 mining claims and a tunnel site, situate in Chaffee county, in the state of Colorado. These claims were in a group, and some of them intersected and overlapped each other, and the tunnel-site extended across them. John B. Henslee was the authorized agent of the company under the laws of Colorado, upon whom service of process against the company could be made, and he was also a large stockholder therein, and attended, without compensation, to some of the business of the company. The company became embarrassed, and suits were brought against it by its creditors in January, 1882. It owed Henslee $1,500 for money advanced to it by him. Henslee assigned his claim to the defendant Joseph R. Crow, in part payment of money due from him to Crow, who brought suit on the claim in the county court of Lake county, Colorado. The summons was served on Henslee, as state agent, on January 9, 1882, and four days thereafter he appeared in open court, and, as the record of that case states, as general agent of the company, consented to the submission of the case, and judgment was thereupon rendered against the company in favor of Crow. A transcript of this judgment was filed with the recorder of Chaffee county on January 17, 1882, and thereupon it be- came a lien upon the property of the company in that county, and was the oldest and best lien thereon. George M. Robinson recovered a judgment against the company in the same court for $346.35. It became a lien on January 20, 1882, and was the second lien on the property of the company. Henslee gave notice of these judgments to the officers of the company in New York, and, upon the promise that the company would pay them, the judgment creditors agreed to a stay of execution, and, in consequence, no execution was issued on either of them until four months after their rendition. On June 17, 1882, the property of the Brittenstine Mining Company was sold to Joseph R. Crow for the amount of the judgment in his favor on an execution issued thereon, and was again sold July 8, 1882, to George M. Robison for the amount of the judgment in his favor and upon an execution issued thereon. Certificates of sale were delivered to each of the purchasers and duly recorded in the recording office of Chaffee county. The certificates specified the time within which the property could be redeemed, which was six months from the date of the sales respectively, to-wit, from the sale to Crow on December 17, 1882, and from the sale to Robison on January 8, 1883. The certificate given to Crow stated that the sale to him was subject to the sale to Robison. The officers and directors of the company in New York received notice from Henslee of these judgments and sales, and made efforts, without success, to raise money to pay off the liens. The judgments and certificates of sale were brought up by the defendants, L. C. Wilson, H. M. Noel, J. L. Loker, W. N. Loker, James Streeter, and O. H. Simons. They appear to be the only defendants who have any interest in this suit.

While the events above mentioned in reference to this property were happening in Colorado the supreme court of the city and county of New York, in a suit therein pending against the company on May 29, 1882, appointed a receiver, to whom, on October 23, 1882, the company, by order of the court, conveved all its property. At a sale made by the receiver about December 1, 1882, the appellant, John E. White became the purchaser of the property of the company in Chaffee county, Colorado, and on December 5th received a deed therefor from the receiver, and on December 6th a deed from the company. At the time of his purchase White knew of the liens against and sales of the property, and that the time for redemption was about to expire. He redeemed the property from the sale to Robinson before the time for redemption expired and paid off two judgments junior to those above mentioned. He, however, failed and refused to redeem the property from the sale to Crow within the time limited for redemption. After the time had expired White offered to redeem from the Crow sale, but the appellees refused to allow the property to be redeemed. Thereupon, on February 12, 1883, the appellant, John E. White, filed the bill in this case, to which Henslee, Crow, and the above-mentioned purchasers of said judgments, and Robert Ray, the sheriff of Chaffee county were made parties. The bill prayed that Ray, the sheriff of Chaffee county, might be enjoined from making a deed to the owners of the certificate of sale issued to Joseph R. Crow, and that the certificate might be declared null and void, and that upon payment by the complainant of the amounts found due to Crow on his claim against the property he might be compelled to execute a deed of release to him for said property. The only questions controverted on the final hearing were whether or not the judgment in favor of Crow and the certificate issued upon the sale made to him should be declared void, and whether the sheriff of Chaffee county should be enjoined from making a deed to him for the property in question, and whether the owners of the judgment and lien of Crow should, upon payment thereof, execute deeds of release to the appellant for said property. The circuit court decided all these questions in the negative, and directed that the defendants in interest should repay to the complainant the sums paid by him to discharge the leins upon said property, and, upon such payment, decreed that the bill should be dismissed. This appeal brings that decree under review.

L. S. Dixon, for appellant.

John D. Pope, for appellees.

WOODS, J.

The first assignment of error which we shall notice is, that the circuit court erred in not declaring the judgment recovered by Joseph R. Crow against the Brittenstine Silver Mining Company void,—First, because fraudulently obtained; and, secondly, because the court was without jurisdiction to render it. We have been unable to find in the record any support for the contention that the judgment was fraudulently obtained. All the alleged facts set out in the bill on which the charge of fraud is based are clearly disproven by the testimony. But if the Brittenstine Silver Mining Company were itself assailing the judgment as fraudulently procured, it could not have it enjoined in equity unless it could aver and prove that it had a good defense upon the merits. Hair v. Lowe, 19 Ala. 224; Pearce v. Olney, 20 Conn. 544; Ableman v. Roth, 12 Wis. 90. There is no pretense that the company had any defense. It has never complained of the judgment. On the contrary, it promised to pay it, provided execution were stayed; and upon its promise of payment execution was stayed. Much less, therefore, does it lie in the mouth of appellant to complain of fraud in the obtaining of the judgment. On this point he has no standing in court.

The complainant insists, however, that the judgment was void because, on the fourth day after service of summons, and before the time for filing the answer had expired, Henslee appeared in court and consented that judgment might be entered in favor of Crow, against the Brittenstine Mining Company, for the sum due on the obligation upon which the suit was brought, and judgment was thereupon accordingly entered. The Civil Code of Colorado, § 46, provides as follows: 'From the time of service of summons...