A lapse of forty-six years is a bar to relief in equity,
although the creditor, during all that time, supposed the debtor to
be insolvent and not worth pursuing, where it appears that for a
considerable portion of that time he was in a condition to pay, and
the creditor might, by reasonable diligence, have discovered it,
and recovered the money by a suit at law.
Where, upon the case stated in the bill, the complainant is not
entitled to relief by reason of lapse of time and laches on his
part, the defendant may demur.
The bill was filed in the court below by Maxwell, the
appellant,
Page 49 U. S. 211
against the above-named defendants, as the heirs of William E.
Kennedy. Joseph and Martha Kennedy were his children, and Jesse
Carter and Daniel E. Hall had married his daughters.
As the sole question which came up to this Court was the
correctness of a judgment of the circuit court in sustaining a
demurrer to the bill, it is only necessary to state the substance
of it.
The bill averred that on 10 November, 1797, Robert Maxwell, the
intestate of the complainant, recovered a judgment in South
Carolina, against William E. Kennedy, the ancestor of the present
defendants. The judgment was for �1,000 sterling, and costs, �114
9
s. 2
d., no part of which was ever paid.
That immediately after the rendition of the judgment, in order
to avoid the service of a
capias ad satisfaciendum which
had been issued, and also to avoid being apprehended for the murder
of the said Maxwell, for which he had been indicted, Kennedy fled
from South Carolina. Two or three years afterwards he was
apprehended in Georgia, brought back to South Carolina, tried and
acquitted. At this time he was stated in the bill to have been
insolvent. Immediately afterwards, he returned to Georgia, where he
remained for four or five years, still insolvent, so that no effort
could have been successfully made to collect the above-mentioned
judgment.
That after the expiration of that time Kennedy left Georgia,
without its being known to anyone in that part of South Carolina
where he had gone, until about three years before his death, when,
some time in the year 1822, it was ascertained that he was living
in Mobile. That he was then residing with his brother, one Joshua
Kennedy, and apparently dependent upon him for support. That when
Kennedy went to Mobile, it was in a foreign country, and little or
no intercourse existed between it and South Carolina; nor was there
for a long time after it had been ceded to the United States. That
while Florida was yet a Spanish province,
viz., in the
year 1806, the said Kennedy acquired an imperfect title to a
considerable estate in land, of which, however, the complainant was
entirely ignorant. That on 13 December, 1824, he conveyed this
estate to his brother, Joshua Kennedy, for the consideration of
$10,000, which, the bill averred, had never been paid.
That it was not until after the date of this deed, that the
complainant discovered that William E. Kennedy was living, and he
was then wholly without property.
That in the year 1805, he had married a female subject of
Page 49 U. S. 212
the Crown of Spain, who owned considerable real and personal
estate, all of which was settled upon her previously to the
marriage.
That on 9 April, 1825, William E. Kennedy died. Joshua Kennedy
administered upon the estate, and returned an inventory to the
orphans' court, amounting in value to $267. Up to the time of
Joshua's death, which took place in 1839, he constantly represented
his brother William to have died insolvent, and these
representations prevented the complainant from attempting to
enforce the long-standing judgment.
That on or about 22 April, 1839, the heirs of the said William
E. Kennedy,
viz., the defendants in the present suit,
filed a bill in the Court of Chancery of the First Chancery
Division and Southern District of the State of Alabama against the
heirs and executors of Joshua Kennedy and obtained a decree against
them, which, on an appeal to the supreme court of Alabama, was
confirmed. This decree adjudged that the deed of 13 December, 1824,
was not made upon any consideration valuable in law, but for the
purpose of securing an adequate provision for the children of the
said William. It therefore further adjudged that the heirs of
William were entitled to one-half of the unsold lands, and one-half
of the proceeds of all which had been sold.
The bill then proceeded to aver, that a compromise had been made
by the heirs and representatives of these two brothers, a discovery
of which was prayed, and that, when made known, the share of the
lands so conveyed to the heirs of William E. Kennedy might be held
bound to satisfy the judgment obtained by the intestate of the
complainant. It concluded with a general prayer for other and
further relief.
One of the exhibits attached to the bill was a copy of the
decree just mentioned, in the case of
Joseph S. Kennedy and
others, Heirs of William E. Kennedy, Complainants v. Executors and
Heirs of Joshua Kennedy, which decree was passed on 28
November, 1840.
To the bill filed by Maxwell in the circuit court of the United
States against the heirs of William E. Kennedy the defendants
demurred.
In May, 1845, the cause came up for argument upon the demurrer,
when the circuit court sustained the demurrer and dismissed the
bill.
From that decree the complainant appealed to this Court.
Page 49 U. S. 218
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
The facts stated in the bill are admitted by the demurrer, and
the only question is whether the complainant is entitled to relief
in a court of equity, when so many years have elapsed, since the
judgment was obtained against the father of the defendants.
The judgment was rendered in South Carolina on 10 November,
1797, and this bill was filed against the appellees in Alabama on
22 February, 1844. A period of more than forty-six years had
therefore elapsed, during which neither the plaintiff who obtained
the judgment, nor his administrator, nor the present complainant,
who is administrator
de bonis non, made a demand of the
debt, or took any step to procure its payment.
It is not alleged in excuse for this delay that his residence
was, during all the time, unknown. On the contrary, it is admitted
that it was known for some six or eight years after the judgment
was obtained, and although he was afterwards lost
Page 49 U. S. 219
sight of for a long time, and supposed to have gone beyond sea
and died in parts unknown, yet he was again discovered in 1822
residing in the State of Alabama, where for three years afterwards
he was accessible to the creditor and amenable to judicial
process.
Neither is it alleged that he designedly and fraudulently
concealed his place of residence from the creditor, nor that the
conveyance of his property was made for the purpose of hindering or
preventing the recovery of this debt. The delay is accounted for
and sought to be excused altogether upon the ground that when his
place of residence was known, he was always in a state of poverty
and insolvency which made it useless to proceed against him.
It is, however, not necessary, in deciding the case, to inquire
whether even this state of poverty would justify the delay of so
many years without some demand upon the party or some proceeding on
the judgment to show that it was still regarded as a subsisting
debt and intended to be enforced whenever the debtor was able to
pay. The facts stated in the bill, and those which appear in the
exhibits filed with it by the complainant, do not show this
continued condition of utter destitution and want which the
complainant relies upon. For when he was discovered in 1822 in
Alabama, his situation as to property was such as to make it highly
probable that the debt might then have been recovered by an action
at law if it was not already barred by the act of limitations of
that state.
This appears from the decree of the chancery court of the state
in a controversy between the heirs of William E. Kennedy, the
debtor, and the heirs of his brother Joshua, which decree is one of
the complainant's exhibits. It shows that in 1818 or 1819, the
debtor held in his own right an undivided moiety of the real
estate, which he conveyed to his brother, Joshua Kennedy, in 1824,
as mentioned in the bill. And this conveyance, upon the face of it,
purported to be in consideration of the sum of $10,000 -- a sum
sufficient to pay the principal of the judgment and a large portion
of the interest. It is true that the complainant, in that part of
the bill in which he speaks of this conveyance, states that he did
not discover that the debtor was living and residing at Mobile
until after the conveyance was made. If this allegation was
consistent with the other statements in the bill, and could be
regarded as a fact in the case admitted by the demurrer, still, as
he died in 1825, reasonable diligence required that the creditor
should have taken some measures to ascertain whether the $10,000
had been paid and to compel his administrator, who was also the
grantee
Page 49 U. S. 220
in the deed, to account for it. The creditor had no right to
presume, without inquiry, that his debtor, who had sold property
for so large a sum of money, had within a year afterwards died
utterly insolvent and almost penniless, so as to make it useless to
investigate the State of his affairs or to take any step towards
the recovery of his debt. There is reason for believing, from the
facts stated in the decree above mentioned that, with proper
efforts, he would at that time have learned the trust upon which
the conveyance was made and discovered that the debtor had left
property of sufficient value to be at all events worth
pursuing.
But the complainant cannot put his claim upon the ground that
the residence of the debtor was not known until after he had made
the conveyance and parted from this property. For in a previous
part of his bill, he admits that this information was obtained in
1822, which was two years before the deed was executed. And
whatever might have been the wasteful and dissolute habits of the
debtor, he yet at that time owned the land which at this late
period the complainant is seeking to charge with this debt, and
continued to hold it until the conveyance to his brother in 1824.
And if the creditor chose to rest satisfied with information as to
his habits and manner of living, instead of using proper exertions
to find out his situation as to property, his want of knowledge in
this respect was the fruit of his own laches. The fact that he held
the title to these lands could undoubtedly have been ascertained
with ordinary exertions on his part. And he moreover might have
learned, according to the statement in his exhibit before referred
to, that after the death of Wm. E. Kennedy, his brother, the
grantee in the deed frequently spoke of this conveyance as intended
merely to prevent the property from being wasted by the careless
habits of his brother, and to preserve it for his family. And as
late as 1829, in an advertisement in a newspaper of the place,
offering some of this land for sale or lease, he described it as
property of which the children of Wm. E. Kennedy were entitled to
one-half. With all these means of information open to him from 1822
to 1829, the creditor cannot be permitted to excuse his delay in
instituting proceedings upon the ground that he supposed the debtor
to have lived and died hopelessly insolvent, until he obtained
information to the contrary about the time this bill was filed. If
he remained ignorant, it was because he neglected to inquire. If he
has lost his remedy at law by lapse of time, or the death of the
debtor, it has been lost by his own laches, or that of the
administrator who preceded him.
Page 49 U. S. 221
It is the established rule in a court of equity, that the
creditor who claims its aid must show that he has used reasonable
diligence to recover his debt, and that the difficulties in his way
at law have not been occasioned by his own neglect. A delay of
twenty years is considered an absolute bar in a court of equity,
unless it is satisfactorily accounted for. But here there has been
a delay of more than forty-six years; and under circumstances, for
a part of that time, which evidently show a want of diligence.
Indeed, if the court granted the relief asked for, the
complainant would not only be protected from the consequences of
his own neglect, but would derive a positive advantage from it. For
if, when the debtor was discovered in Alabama in 1822, the
complainant had then brought an action at law against him and
recovered judgment, and then suffered that judgment to sleep until
the time when this bill was filed, his claim would have been barred
by the statute of limitations of that state. And if he could now
avoid that bar, upon the ground that the act of limitations of
Alabama applies only to domestic judgments, and could obtain the
aid of a court of equity to enforce the judgment rendered in South
Carolina, upon the ground that it is not within that act, he would
derive an advantage from his omission to proceed against the debtor
when he discovered, in 1822, the place of his residence. He would
obtain relief, because he neglected to sue at law when the debtor
appears to have been in a condition to pay the debt, and when that
fact could have been ascertained by reasonable exertions on his
part. In the eye of a court of equity, laches upon a judgment of
South Carolina cannot be entitled to more favor than laches upon a
judgment in Alabama, and both must be visited with the same
consequences. Relief in a court of equity, under the circumstances
stated in the bill and exhibits, would be an encouragement to
revive stale demands, which had been abandoned for years. The
property now sought to be charged might not, in the lifetime of the
original parties, have been thought worth pursuing; and in the
changes in value continually occurring in this country, it may,
after the lapse of so many years, have become of great value in the
hands of the heirs of the debtor. And if under such circumstances
it could be made liable, an old and abandoned claim, with the
accumulated interest of near half a century, might become a
tempting speculation. Sound policy, as well as the principles of
justice, requires that such claims should not be encouraged in a
court of equity.
It is unnecessary, in this view of the case, to determine
whether the statute of limitations of Alabama does or does not
Page 49 U. S. 222
apply to this judgment. For the reasons above stated, we think
the lapse of time, upon the facts stated in the bill and exhibits,
is, upon principles of equity, a bar to the relief prayed, without
reference to the direct bar of a statute of limitations.
Another question has been made in this case, and that is whether
the objection arising from lapse of time, apparent on the bill and
exhibits, can be taken advantage of on demurrer. Undoubtedly the
rule formerly was that it could not, and that doctrine was
distinctly laid down by Lord Thurlow in the case of
Deloraine
v. Browne, 3 Bro.Ch. 646. The rule was perhaps followed for
some time afterwards. It was placed upon the ground that this
defense was founded upon the presumption that the debt must have
been paid, and as a demurrer admits the fact stated in the bill, it
admits that the debt is still due, and if admitted to be due, the
debtor in equity and good conscience is bound to pay it.
But the presumption of payment is not the only ground upon which
a court of chancery refuses its aid to a stale demand. For there
must appear to have been reasonable diligence, as well as good
faith, to call its powers into action; and if either is wanting, it
will remain passive and refuse its aid. This is the principle
recognized by this Court in
Piatt v.
Vattier, 9 Pet. 416;
McKnight v.
Taylor, 1 How. 168; and in
Bowman v.
Wathen, 1 How. 189. If, therefore, the complainant
by his own showing has been guilty of laches, he is not entitled to
the aid of the court, although the debt may be still unpaid.
Upon this principle, the proper rule of pleading would seem to
be that when the case stated by the bill appears to be one in which
a court of equity will refuse its aid, the defendant should be
permitted to resist it by demurrer. And as the laches of the
complainant in the assertion of his claim is a bar in equity, if
that objection is apparent on the bill itself, there can be no good
reason for requiring a plea or answer to bring it to the notice of
the court. Accordingly, the rule stated by Lord Thurlow has not
been always followed in later cases. In
Hovenden v.
Annesley, 2 Sch. & Lefr. 638, Lord Redesdale says:
"If the case of the plaintiff as stated in the bill will not
entitle him to a decree, the judgment of the court may be required
on demurrer whether the defendant ought to be compelled to answer
the bill."
And in Story's Eq.Pl. § 503, and the note to it, he states the
rule laid down by Lord Redesdale to be now the established one. In
the opinion of the court, it is the true rule. It is evidently
founded upon sounder principles of reason than the one maintained
by Lord Thurlow, and is better calculated to disembarrass a suit
from unnecessary forms and technicalities,
Page 49 U. S. 223
and to save the parties from useless expense and trouble in
bringing it to issue, and applies with equal force to a case barred
by the lapse of time, and the negligence of the complainant, as to
one barred by a positive act of limitations. In the case before us,
therefore, the demurrer was proper, and must be
Sustained, and the decree of the court below
affirmed.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Southern
District of Alabama, and was argued by counsel. On consideration
whereof, it is now here ordered and decreed by this Court that the
decree of the said circuit court in this cause be and the same is
hereby affirmed with costs.
