UNITED STATES SUPREME COURT DECISIONS ON-LINE

When, in Colorado, the agent of an absent defendant, upon whom process had been duly served, appeared and consented to the entry of a judgment against the defendant before the time for filing answer had expired, and no clubjuris

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fraud was shown, held, on an attempt to attack the judgment collaterally by reason of entry before the time for answering had expired, that the court would make all necessary presumptions to sustain it.

When a judgment creditor in Colorado, prior in lien, received from the sheriff a certificate of sale of real estate sold to the creditor on execution issued on the judgment to satisfy the debt, which certificate recited that the property was subject to an execution issued on a judgment which was in fact junior in date to that under which it was sold, held that the recital was a mistake of which a person claiming title under a conveyance from the judgment debtor and redemption from the junior judgment could not take advantage.

In order to obtain equitable relief against a judgment alleged to have been fraudulently obtained it must be averred and shown that there is a valid defense on the merits.

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 twelve 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 became clubjuris

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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, conveyed all its property. At a sale made by the receiver about December 1, 1882, the appellant, John E. White, clubjuris

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became the purchaser of the property of the company in Chaffee County, Colorado, and on December 5 received a deed therefor from the receiver, and on December 6 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 liens upon said property, and, upon such payment, decreed that the bill should be dismissed. This appeal brings that decree under review. clubjuris

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