McQuiddy v. Ware

APPEAL from the Circuit Court for the Eastern District of Missouri; the case being thus:

At the beginning of the late rebellion, which broke out in 1861, McQuiddy, a resident of Nodaway County, missouri, and owning a farm there, voluntarily entered the service of the Confederate States under General Sterling Price, and followed the fortunes of that officer and his army when they left Missouri. At this time there were two mortgages on different parts of his farm, or instruments of writing which the holders of them asserted to be mortgages. These were due, and the holders in May, 1862, and November, 1863, procured a decree of foreclosure of them. This proceeding was made in professed pursuance of a statute of Missouri, regulating the subject of the foreclosure of mortgages, and which authorizes an order of publication instead of an actual service when the mortgagee alleges and the court in which the foreclosure is applied for, or its clerk, is satisfied 'that the place of residence of the defendant is unknown.' The foreclosures, therefore, so far as the records of them showed, were made on constructive notices, and on allegations such as above stated.

McQuiddy also owed money, when he left Missouri, to a third creditor; this debt being by a note unsecured. This creditor proceeded to get his debt by a proceeding in attachment, and in professed pursuance of another statute of Missouri, which authorizes a writ in that sort of proceeding to issue whenever the plaintiff files his petition setting forth his cause of action, with an affidavit that he has good reason to believe, and does believe, that the defendant has absconded or absented himself from his usual place of abode in this State, so that the ordinary process of law cannot be served upon him. Such affidavit was made by the unsecured creditor, and under it, in November, 1863, judgment was got; a judgment, of course, like the other, on a constructive notice, so far at least as the record of the proceeding showed.

On these three different judgments all parts of his farm were sold; a sale of one part being in 1863, and of the others in 1864, in sales following at no great intervals the dates of the judgments.

By the Revised Statutes of Missouri a party against whom judgment has been rendered on constructive notice simply, may come in at any time within three years afterwards and file a petition for review.

In this state of things and of law, McQuiddy, in July, 1871, filed his bill in the court below, against the purchasers of the farm (one Ware, and others), and against their vendees, to set aside the sales and to have possession again of the property sold.

His bill attacked the jurisdiction of the court in all three cases alike.

He averred that the orders of publication were based on false statements, and that in one of the cases, proceeded in as in the case of a mortgage, the instrument proceeded on was not a mortgage, and that the proceeding was in truth a proceeding to enforce a lien on lands, instead of a suit to foreclose a mortgage, and required an affidavit of non-residence to authorize the giving of constructive notice; and that jurisdiction could not be acquired on affidavit of unknown residence, the sort of affidavit made in the case. He alleged further that his departure from the State was for a temporary purpose and with an intention of soon returning; that he left his wife at his domicile, and that copies of writs could have been served on her, and that he neither absconded nor absented himself from his usual place of abode in the sense of the statute, nor was his residence unknown; that all these facts were known to the parties in interest, including the respondents, who either purchased the property at the sales, or derived title from the person who did purchase.

By way of excuse for his want of diligence in his own affairs, he alleged that the state of feeling was such against him in Nodaway County, on account of the part he took in the rebellion, that he could not with any sort of safety return to the county, and that in 1863 he removed his family to Tennessee, where he had since continued to reside. He also alleged, in continuation of this excuse, that being absent from the State, though a resident of the county when the proceedings were instituted to deprive him of his rights, and no notice of the same having been given to any member of his family he had not a day in court given him, and was in ignorance of what was done until recently; and that as soon as practicable after ascertaining that the said illegal proceedings were had, he had taken steps to assert his rights.

The only charge of fraud in connection with the transactions disclosed in the bill related to the falsity of the affidavits on which the proceedings were based.

The complainant did not make any tender of money at all; but he prayed that an account might be taken of what was due on the instruments of debt; that an account might be taken also of the rents and profits received by the vendees of the persons who had bought at the judicial sale, and that he, the complainant, might be allowed to redeem on payment of any balance.

The defendants demurred, and the Circuit Court sustained the demurrer. A decree having gone accordingly, McQuiddy brought the case here for review.

Mr. W. H. Letcher, for the appellant, cited numerous statutes of the State of Missouri, and decisions of the Supereme Court of the State upon them, to show that the proceedings were not in proper form, and that upon the facts alleged and which, of course, the demurrer admitted, no jurisdiction existed, and that the sales of necessity were void.

Mr. G. P. Strony, contra, contended that the statutes applicable to the case case had been strictly pursued; and, moreover, that the case was void of equity.

Mr. Justice DAVIS delivered the opinion of the court.