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years, Lucy W. S. Morgan, the wife of Elijah W. Morgan, and his alleged co-conspirator in the so-called "fraudulent conveyances" sought to be avoided by this bill, departed this life, and any light which she could have thrown upon the transactions complained of, was forever lost. These deeds, which the bill claims were voluntary, and in fraud of his rights, and those of other creditors of Morgan, were largely made prior to the execution of the notes upon which complainant's judgment is founded. The conveyances to Franklin L. Parker bear date January 14, 1873, over 10 months before the notes mentioned, and were recorded June 15, 1875, over 15 months before these notes were transferred by Hattie C. Eames to the complainant.
Touching these conveyances to Parker, aside from the fraudulent character imputed to them as purely voluntary, and therefore assailable by Morgan's creditors, the only circumstance disclosed by the bill which tends to impugn the conduct of Parker, or to lay him open to the charge of having been a participant in the supposed fraud of Morgan and his wife, is the fact that they were not recorded until two years after their execution. As Morgan is alleged to have been a man of large property, and it is not claimed that the deeds to Parker embraced all his realty, withholding them from the record was not necessarily or probably a fraud upon complainant. He had no right to complain of transactions perfected before he became Morgan's creditor. Graham v. Railroad Co., 102 U. S. 148.
With regard to the property conveyed by Morgan to his wife and to Lucy D. S. Parker, the bill does not specify the date of the conveyances, except by the general allegation that, in the years 1873 and 1874, Morgan combined and confederated with his wife, and with Franklin L. Parker and his wife, to transfer and incumber his property, and conceal the same from his creditors; and that the conveyances under which the defendants claim title to the lands which the complainant seeks to subject to the payment of his debt were made in pursuance of such combination, and for the fraudulent purpose of preventing the same from being applied to the payment of Morgan's debt, with knowledge on the part of the grantees of Morgan's insolvent condition and his indebtedness. Save in this general way, there is no allegation in the bill of any concealment by Morgan or his grantees, or any other active measure taken by them, or either of them, to defeat the claims of Morgan's creditors. It is not even charged that the conveyances were withheld from the record, and that the creditors were thereby lulled into a feeling of security, or were dissuaded from proceedings to avoid the alleged fraudulent transfers. The fair inference from the allegations of the bill relative to these conveyances is that they were seasonably recorded. It is a matter of no moment that complainant did not have actual knowledge of their execution, if, as may be fairly assumed, they were recorded in the office of the register of deeds for the county of Washtenaw. Such records afforded means of knowledge, which is equitably synonymous with knowledge itself, and leave without excuse one who so tardily seeks relief from transactions which, if he had diligently pursued his rights, he might
easily have discovered and proved at a time when the actors in thein were living, and had the facts fresh in mind. Where the matters complained of as frauds are evidenced by public records, accessible to all, it is settled by the judgments of the federal and state courts alike that the party who seeks to avoid the effect of such notice must show something more than concealment by mere silence,-some affirmative act of deception; some misleading device or contrivance on the part of the party charged with fraud intended to exclude suspicion, prevent inquiry and the institution of adequate measures of redress. New Albany v. Burke, 11 Wall. 107; Wood v. Carpenter, 101 U. S. 135; Pearsall v. Smith, 149 U. S. 231– 236, 13 Sup. Ct. 833; Norris v. Haggin, 136 U. S. 386, 10 Sup. Ct. 942; Robert v. Morrin, 27 Mich. 306; Richards v. Mackall, 124 U. S. 183, 8 Sup. Ct. 437.
Instead of taking such steps as the notice imparted by these conveyances should have prompted (for they informed him that Morgan was disposing of his property), and although the bill avers that he was largely indebted at this time, which seems to have been as well known to complainant then as now, complainant did nothing. If these conveyances were fraudulent, or if he had reason to believe them so, the statutes of Michigan provided an ample remedy by which he could have contested their validity. He might have filed a judgment creditors' bill in the state court, or could have instituted a suit in attachment at any time since 1876, the date when he acquired the notes in question, by making affidavit, pursuant to the statute, that Morgan, the debtor, had transferred, assigned, or conveyed (or was about to do so) his property with intent to defraud his creditors, or that he had reason to believe that his transfers and conveyances were so made and for that purpose, or he could have called upon Morgan's administrator to take the proceedings authorized by section 5884, 2 How. Ann. St. In either of these proceedings the amplest latitude of inquiry would have been allowed him, and the facts attending the transfer and the considerations and motives thereof could have been fully investigated. Ordinary diligence should have stimulated complainant to prompt action. The course he pursued was the opposite. He has delayed inquiry and pursuit with at least constructive knowledge of the acts of which he now complains, and knowing, also, that Morgan, by age and infirmity, had become incompetent, and although warned by the death of Lucy W. S. Morgan that the lapse of time was erecting the strongest equitable obstacles to his pretensions. Franklin L. Par. ker died February 20, 1894. June 8, 1894, complainant filed this bill, after the death of all the actors in the transactions of which he complains. Assuming that the conveyances made by Morgan were made, as charged in the bill, as early as 1874, it appears that the defendants and those whom they represent have been in possession of the lands conveyed by Morgan for nearly 20 years. For 18 of those years, viz. since September, 1876, complainant has acquiesced in Morgan's conveyances and defendants' possession of the property, until every witness to the transaction which he seeks to investigate has passed away.
By the statute of Michigan (2 How. Ann. St. p. 2127, § 8698), it is provided that:
“After the 31st day of December, in the year of our Lord eighteen hundred and sixty-three, no person shall bring nor maintain any action for the recovery of any lands or the possession thereof, or make any entry thereupon un- . less such action is commenced or entry made within the time herein limited, therefor, after the right to make such entry or to bring such action, shall have first accrued to the plaintiff or to some person through whom he claims, to wit: First. Within five years where the defendants claim title to the land in question, by, or through some deed made upon the sale thereof by an executor, administrator or guardian or by a sheriff or other proper ministerial ofticer under the order, judgment, decree or process of a court or legal tribunal of competent jurisdiction within this state. Second. Within ten years where the defendant claims title under a deed made by some officer of this state or of the United States, authorized to make deeds upon the sale of lands for taxes assessed and levied within this state. Third. Within fifteen years in all other cases."
Whatever infirmity inhered in the conveyance by Morgan to the decedents, Lucy Morgan and Franklin L. Parker, the lapse of time has healed, unless the case made by the bill can be brought within the provision of section 8724. That section provides:
"If any person who is liable to any of the actions mentioned in this chapter, shall fraudulently conceal the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within two years after the person who is entitled to bring the same shall discover that he has such cause of action, although such action would be otherwise barred by the provisions of this chapter.”
The conveyances complained of neither concealed themselves, nor were such affirmative acts of fraud as are excepted from the operation of the statute. For aught that appears from the bill, the facts it states as ground of relief were as well known to complainant for at least 15 years before this bill was filed as they now are. Complainant was under no disability, nor is it claimed that any affirmative acts on the part of Morgan, his wife, or Franklin L. Parker have misled him in any particular, or induced his inaction. The utmost of his charges against the defendant Lucy Parker is that she had knowledge of the object which Morgan sought to ac. complish by the conveyance of his property. This charge is made upon information and belief, and it clearly appears from the bill that complainant was in possession of that information, and had the same belief which he now entertains, before it became necessary to sue upon his judgment in this court, and for over three years before the filing of this bill. The bill makes no case whatever against the defendants Kinne and Johnson, except their possession in their representative characters as executors of the estate of Lucy W. S. Morgan of the property conveyed to her by her husband, and except, also, the charge, upon information and belief, that they have in their possession books, papers, documents, etc., which would support the case of complainant. As this charge is made upon information and belief, it lacks the weight and significance which a positive averment would be entitled to receive, and, in the view we have taken of the case, is immaterial.
There is no equity in complainant's bill, and it should be dismissed, with costs.
LUMLEY V. WABASH RY. CO.
zens and subjects of a foreign state," for the purpose of conferring juris-
diction on a federal court.
that the complainant is “an alien and citizen of” a foreign state cannot
mere continuation of the former one.
it read, but that only part was read to him, is without any weight, when
signing it only by clear proof that his failure to do so was induced by
fraud or excusable mistake.
lently" and "surreptitiously" are mere statements of conclusions, not ad.
mitted by a demurrer.
This was a bill by Ephraim Lumley against the Wabash Rail-
The complainant is a citizen of the province of Ontario, in the dominion
the queen of Great Britain and Ireland, and that the defendant was and is a corporation organized and existing under the laws of the state of Missouri, and a citizen and resideut of said state. An order of removal was made upon this petition, and the transcript from the state court was seasonably filed in this court. The cause thus removed was, by stipulation between the attorneys for the respective parties, discontinued on the 27th day of June, 1894, and on the 19th of September, 1894, the plaintiff, describing himself as “a resident and citizen of the province of Ontario, in the dominion of Canada" (being in terms the same averment of his citizenship as was made in the cause removed and subsequently discontinued), filed his declaá ration in this court, as commencement of suit, describing the defendant as a corporation organized and doing business under the laws of the state of Michigan. The form of action was case for the alleged negligence of the defendant, whereby the plaintiff suffered the injuries mentioned above, while being transported over the defendant's road; and the declaration also contains a count based upon the alleged failure of the defendant to provide a competent surgeon and physician to treat and care for the injuries of the plaintiff', by reason of which failure and the alleged want of care and skill of the physician employed by the defendant, to whose care the plaintiff submitted himself, the plaintiff did not receive proper treatment, and his injuries were greatly aggravated, and were rendered permanent and incurable, and have disabled the plaintiff, and rendered him wholly unfit to labor or earn his living. The ad damnum of the declaration is $20,000. The defendant pleaded the general issue. The cause came on for trial at the November term, 1894, of this court, and after the close of the evidence the defendant moved the court for an instruction to the jury to find a verdict for the defendant on the ground that the cause of action was barred by the release executed by the plaintiff. The following is a copy of the release in evidence by the defendant:
"Exhibit A. Form 2,105. "Whereas, on the 3rd day of October, A. D. 1890, I, Ephraim Lumley, of Ridgetown, Ontario, Canada, was a passenger of the Wabash Railroad Company, and as such passenger was engaged in the discharge of my duty, in caring for horses loaded in car,-said car standing on tracks in R. R. yard, Detroit, Mich., at which time said car wherein I was was run against & upon by a locomotive, giving car heavy shock, whereby I was injured,-on the 3d district, E. division, of said railroad; and whereas, I, the said Ephraim Lumley, received certain injuries, to wit, severe contused and lacerated wound on forehead, right side, fracture of right arm between wrist and elbow, and various injuries and contusions, both internally and externally, in and on various parts of my body; and whereas, I, the said Ephraim Lumley, believe that my injuries are the direct result of the neg. ligence of said railroad company, its officers, agents, and employés; and whereas, the said railroad company denies any and all negligence on the part of itself, its officers, agents, and employés, and denies any and all liability for damages for the injuries so as aforesaid by me sustained, but by reason of an offer of compromise made by me, the said Ephraim Lumley, for the purpose of avoiding litigation, to receive and accept the sum of seventy-five dollars in full accord and satisfaction for all claims for damages which I may or might have, either at common law or by virtue of any legislative enactment of the state of Michigan, for the injuries aforesaid, have paid to me the said sum of seventy-five dollars: Now, therefore, in consideration of the premises, and of the payment to me of the aforesaid sum of seventy-five dollars, the receipt whereof I do hereby acknowledge, remise, quitclaim, and forever discharge the said the Wabash Railroad Company, its leased and operated lines, of and from all actions, suits, claims, reckonings, and demands for, on account of, or arising from injuries so as aforesaid received, and any, every, and all results hereafter flowing there from. Witness my hand and seal this 6th day of October, A. D. 1890.
"Ephraim X Lumley. (Seal.]
mark "Signed, sealed, and delivered in presence of H. W. Morehouse. “Witnessed by Joo. Koiffen."