« НазадПродовжити »
bringing of this suit.'
In this class of cases the plaintiff is held to stringent rules of pleading and evidence, ‘and especially must there he distinct averments as to the time when the fraud, mistake, concealment, or misrepresentation was discovered, and what the discovery is; so that the court may clearly see whether, by ordinary diligence, the discovery might not have been before made.' Stearns v. Page, 7 How. 819-829. This is necessary to enable the defendant to meet the fraud aud the time of its discovery.' Moore v. Greene, 19 How. 69–72. * Beaubien v. Beaubien, 23 How.
A general allegation of ignorance at one time and of knowledge at another are of no effect. If the plaintiff made any particular discovery, it should be stated when it was made, what it was, how it was made, and why it had not been made sooner. Carr v. Hilton, 1 Curt. 390, Fed. Cas. No. 2,436. The fraud intended by the section which shall arrest the running of the statute of limitation must be one that is secret and concealed, and not one that is patent or known. Martin V. Smith, 1 Dill. 85, Fed. Cas. No. 9,164. 'Whatever is notice enough to excite the attention, put the party on his guard, and call for inquiry, is notice of everything to which such inquiry might have led.
Mr. Justice Swayne's opinion in this case summarizes the result of the authorities upon cases where fraudulent concealment is tendered as an excuse for delay in bringing suit, as follows:
“The fraud and deceit which enable the offender to do the wrong may precede its perpetration. The length of time is not material, provided there is the relation of design and its consummation. Concealment by mere silence is not enough. There must be some trick or contrivance intended to exclude suspicion and prevent inquiry. There must be reasonable diligence; and the means of knowledge are the same thing in effect as knowledge itself. The circumstances of the discovery must be fully stated and proved, and the delay which has accrued must be shown to be consistent with the requisite diligence.”
While this case was upon the law side of the court, the doctrines there declared are clearly applicable to proceedings in equity. Bank v. Carpenter, 101 U. S. 567, in which, as in the case at bar, the defendants demurred to the bill, which was founded on substantially the same facts as in the preceding case of Wood v. Carpenter. In Harwood v. Railroad Co., 17 Wall. 78, five years' unexplained delay, although the bill contained an allegation of ignorance, in general terms, of the fraudulent acts for which redress was sought, but did not allege when complainants acquired their knowledge, or give satisfactory reason why it was not sooner obtained, were held sufficient to bar relief from an alleged collusive and fraudulent decree and sale. In Godden v. Kimmell, 99 U. S. 201-211, the doctrine is again affirmed that the party seeking relief after long delay, against an alleged concealed fraud, must plead specifically what were the impediments to an earlier prosecution of his claims, how he came to be so long ignorant of his alleged rights, the means used by the defendant to keep him in ignorance, and how he first came to the knowledge of the right. In that case 14 years elapsed from the execution of the deed sought to be avoided and the filing of the bill. In Marsh v. Whitmore, 21 Wall, 178– 185, a bill was filed for an accounting for the value and proceeds of bonds less than 12 years after they had been purchased by the defendant. The plaintiff had remained inactive after their sale. His bill failed to state the impediment, if any, to prompter action, or when he first learned of his supposed wrongs. His language was
so long ignorant of his rights, and the means used by the respondent to fraudulently keep him in ignorance; and how and when he first came to a knowledge of the matters alleged in his bill; otherwise, the chancellor may justly refuse to consider his case, on his own showing, without inquiring whether there is a demurrer or formal plea of the statute of limitations contained in the answer."
In Wood v. Carpenter, 101 U. S. 135, the defendant was charged with fraud in the disposition of his property in a suit by a judgment creditor, who had recovered judgment in 1860, and brought suit thereon in 1872; alleging that the debtor had in 1858, in order to defraud his creditors, confessed judgments, incumbered his property, and, in 1862, conveyed his real and personal estate to sundry persons, who held the same in secret trust for him. The debtor was arrested in 1862, on final process, to compel the payment of the judg. ment; but deposing that he was not worth $20, and had in good faith assigned all his property to pay his creditors, he was released, pursuant to the law of the state. The creditor believing the statement of the debtor, and accepting his assurance that his son-in-law would, with his own means, purchase the judgment for 50 cents of the principal and interest, sold it, in 1864, to the debtor's son-in-law. The creditor afterwards discovered that the money he received for the judgment belonged to the debtor, who had acquired an indefeasible title to the property. The creditor sued for the amount of which he had been defrauded by the deceit of his debtor, who pleaded the statute of limitations in defense of the suit. The court held that the statute of limitations commenced running when the fraud was perpetrated, and it was not avoided by the replication averring that the debtor had fraudulently concealed the facts stated in the declaration touching the incumbrance and conveyance of his property, its real ownership, and the confessions of judgments, and that the creditor had no knowledge of them until a short time before suit was brought. By the statute of Indiana, where the suit was tried, actions of that nature were required to be commenced within six years after the cause of action accrued, although it was provided that, "if any person liable to an action shall conceal the fact from the person entitled thereto, the action may be commenced at any time within the period of limitation, after the discovery of the cause of action.” Rev. St. 1894, § 301.7 There was no averment in plaintiff's pleading that, during the period over which the transactions under inquiry extended, the plaintiff ever made the slightest inquiry in relation to either of them. There, as here, the material facts were of record, and the conveyances complained of were also recorded. The court said of these conveyances and judgments:
“If they were in trust for the defendant, as alleged, proper diligence could not have failed to find a clue in every case that would have led to evidence not to be resisted. With the strongest motives to action, the plaintiff was supine. If underlying frauds existed, as he alleges, he did nothing to earth them. It was his duty to make the effort.
The discos the cause of action, if such it may be termed, is thus set forth: plaintiff further avers that he had no knowledge of the facts so by the defendant until the year A, D. 1872, and a few weeks only
í Rev. St. 1881, $ 300.
bringing of this suit.'
In this class of cases the plaintiff is held to stringent rules of pleading and evidence, ‘and especially must there be distinct averments as to the time when the fraud, mistake, concealment, or misrepresentation was discovered, and what the discovery is; so that the court may clearly see whether, by ordinary diligence, the discovery might not have been before made.' Stearns v. Page, 7 How. 819-829. "This is necessary to enable the defendant to meet the fraud and the time of its discovery.' Moore v. Greene, 19 How. 69–72. • Beaubien v. Beaubien, 23 How. 190. *
* A general allegation of ignorance at one time and of knowledge at another are of no effect. If the plaintiff made any particular discovery, it should be stated when it was made, what it was, how it was made, and why it had not been made sooner. Carr v. Hilton, 1 Curt. 390, Fed. Cas. Xo. 2,436. The fraud intended by the section which shall arrest the running of the statute of limitation must be one that is secret and concealed, and not one that is patent or known. Martin v. Smith, 1 Dill. 85, Fed. Cas. Xu. 9,164. "Whatever is notice enough to excite the attention, put the party @ his guard, and call for inquiry, is notice of everything to which such is cry might have led.
Mr. Justice Swayne's opinion in this case summarizes the resu: of the authorities upon cases where fraudulent concealment i en dered as an excuse for delay in bringing suit, as follows:
"The fraud and deceit which enable the offender to do the WNIE DE cede its perpetration. The length of time is not material, 10. is the relation of design and its consummation. Concealment es is not enough. There must be some trick or contrivance intenize : 41 suspicion and prevent inquiry. There must be reasonable diary the means of knowledge are the same thing in effect as knowled circumstances of the discovery must be fully stated and me delay which has accrued must be shown to be consistent wii diligence.”
While this case was upon the law side of the cour. 1 0 there declared are clearly applicable to proceeding II Bank v. Carpenter, 101 U. S. 567, in which, as in the the defendants demurred to the bill, which was faku. stantially the same facts as in the preceding case Tower, penter. In Harwood v. Railroad Co., 17 Wall. plained delay, although the bill contained an ale rance, in general terms, of the fraudulent acts ir was sought, but did not allege when complaints knowledge, or give a satisfactory reason why i E tained, were held sufficient to bar relief from and fraudulent decree and sale. In Godden 201-211, the doctrine is again affirmed that the after long delay, against an alleged concen specifically what were the impediments of his claims, how he came to be so long rights, the means used by the defendant and how he first came to the knowledge 14 years elapsed from the execution of the ed and the filing of the bill. In 185, a bill was filed for of bonds less than 12 defendant. The plp
that he was not aware of the purchase by the defendant until lately. This averment the court characterizes as “language altogether too vague to invoke the action of a court of equity,” and approves the rule of pleading laid down in Badger v. Badger, 2 Wall. 87, in all its particulars. Norris v. Haggin, 136 U. S. 386, 10 Sup. Ct. 942. See, also, Sullivan v. Railroad Co., 94 U. S. 807, holding also, inter alia, that the defense of laches need not be pleaded to defeat a stale claim, and that each case is governed by its own circumstances, independent of the statute of limitations.
The averments of the bill are obviously insufficient under these authorities. Does the case made by the bill come within the principles ruled by these authorities? Briefly summarized the complainant's case is this: In September, 1876, he acquired, "for a valuable consideration” (the amount of which is not stated), the notes given by Morgan to Hattie C. Eames, November 20, 1873, which were payable, with the stipulated interest, 18 months after date. These notes were then overdue. It does not appear for what, if any, consideration, they were given by Morgan to the payee. Complainant held these notes without, so far as appears from his bill, making any effort to collect them from Morgan, or even presenting them for payment, until the statute of limitations of this state (which allows six years for suit on simple contracts) had nearly run against recovery upon them. They became due May 20, 1875. On the 12th.of July, 1881, just before the bar of the statute would have been perfected against an action upon them, he recovered judgment thereon for the sum of $5,882.72. Whether his inactivity was prompted by his confidence in Morgan's ability to pay them and his desire to continue as long as possible the investment at the profitable rate of 10 per cent. interest is a matter of no moment. If he knew that Morgan was disposing of his property, and did nothing to enforce his claim, he is manifestly debarred from relief on the plainest principles of equity. If he did not know of these conveyances, he is equally inexcusable for ignoring the information which was spread upon the public records of the county. Although he avers that, from the year 1876 until the time of filing this bill, he made diligent efforts to discover property of Morgan from which he could make the amount of his judgment, “but by reason of the fraudulent actings and doings of Elijah W. Morgan, Lucy W. S. Morgan, and Franklin L. Parker, and of their representatives since their decease, and of defendant Lucy D. S. Parker, and by reason of their fraudulent concealment of the equitable interests, real and personal estate, goods and chattels, belonging to said Morgan and his estate, your orator has been prevented hithertofore from so obtaining satisfaction of his aforesaid debt, claim, demand, and judgment; and also that your orator did not discover the facts hereinbefore stated until a few months prior to the commencement of his said suit against said Elijah W. Morgan in said circuit court of the United States for the Eastern district of Michigan," and, since that time, that he has diligently sought to discover such assets applicable to the payment of his debts," -no affirmative acts or misleading devices are alleged. This is too vague and general an
averment to excuse the delay of the complaint. It is not alleged in the bill that any demand was made upon Morgan for the pay. ment of this judgment, or that the same was ever presented to Parker, his guardian, or ever to defendant Manley, Morgan's administrator.
By section 5884, p. 1537, 2 How. Ann. St. Mich., it is provided that: “When there shall be a deficiency of assets in the hands of an executor or an administrator, and when the deceased shall in his lifetime have conveyed any real estate or any right or interest therein with the intent to defraud his creditors, or to avoid any right, debt, or duty of any person, or shall have so conveyed such estate that, by law, the deeds or conveyances are void as against creditors, the executor or administrator may, and it shall be his duty to commence and prosecute to final judgment, any proper action or suit, at law or in chancery, for the recovery of the same, and may recover for the benefit of the creditors all such real estate so fraudulently conveyed and may also for the benefit of the creditors, sue and recover for all goods, chattels, rights or credits which may have been so fraudulently conveyed by the deceased in his lifetime, whatever may have been the manner of such fraudulent conveyance.”
Section 5885 qualifies this duty by making its execution dependent upon the application of creditors of the deceased, and their pay. ment, or giving such security for costs and expenses of such suit as the probate court shall judge just and equitable.
The bill fails to aver that Morgan's administrator has ever been requested by complainant to institute the action authorized by this section, or take any steps thereunder. From July 12, 1881, until February 2, 1891, at which last date complainant brought suit in this court upon the judgment recovered against Morgan in the circuit court for the county of Washtenaw, it does not appear from the bill, otherwise than by the general statement just quoted,-of the efforts of complainant to realize his judgment, —that he took out execution in the state court, or exhausted his legal remedies therein. So far as the bill shows, he seems to have remained quiescent, although, as he avers, from the year 1873, Morgan (before that time a man of large property) had become practically insolvent, by the conveyances which are here charged to have been frauds upon his creditors, and from which the bill seeks relief. No reason is shown for this inaction and the failure of complainant promptly to seek the like remedy in the state court, as a judgment creditor of Morgan, to that here sought against these alleged fraud. ulent conveyances. No greater obstacles existed at and after the date of his judgment in the state court, or at any time since the year 1876, to the enforcement of his claim against Morgan, than at the time the judgment at law was recovered in this court, or when this bill was filed. Accepting his statement that, in 1889, and for many years prior thereto, Morgan was mentally incompetent, and, by reason of that fact, Franklin L. Parker, now deceased, was then appointed his guardian, and acted as such until the death of Morgan, January 28, 1892, yet neither Morgan's condition nor the fact that he was under guardianship constituted any impediment to the enforcement of the complainant's judgment which excuses his failure to take the necessary proceedings. More than this, on the 20th of June, 1887, after complainant has held the notes for nearly 11