UNITED STATES SUPREME COURT DECISIONS ON-LINE

When a person whose equity of redemption in mortgaged real estate is foreclosed, rests inactive for eleven years with full knowledge of the foreclosure and of the purchaser's rights claimed under it, and of his own rights, and with nothing to hinder the assertion of the latter, and then files a bill in equity to have the. foreclosure proceedings declared void for want of proper service of process upon him, this Court will at least construe the language of the returns so as to sustain the legality of the service, if that can reasonably be done, even if it should not regard it as too late to set up such a claim.

The Court stated the case as follows:

On September 29, 1890, appellant filed his bill in the Circuit Court of the United States for the District of Kentucky, the object of which was to set aside a commissioner's deed to defendant, executed years before in pursuance of certain proceedings in the district court of the United States for that district. The facts as alleged were these: prior to May 2, 1879, the plaintiff, his mother, sister, and brother, were the owners each of an undivided one-fourth of a lot in the City of Louisville, which lot was subject to a lease from the four owners to Thomas Slevin, who, as tenant, had built thereon houses of great value. On January 9, 1868, plaintiff had given to Thomas Slevin his note for $2,000, payable in two years, and had secured the same by a mortgage of his undivided one-fourth of said property. Interest thereon was paid regularly until January 9, 1869, by the clubjuris

Page 142 U. S. 237

application of a part of the rents coming to plaintiff under the lease, but after that date, Slevin failed and refused to so apply the rents, but claimed to set them off against goods sold to plaintiff. On February 21, 1877, Slevin was adjudged a bankrupt in proceedings in the United States district court, and Stephen E. Jones was elected his assignee. On February 5, 1878, Jones, as assignee, commenced a suit in the same court to foreclose the mortgage, in which suit, besides plaintiff and his wife, the other joint owners were made parties defendant. In that suit, a decree of foreclosure was entered on May 22, 1879, and on August 11, 1879, the property was sold by R. H. Crittenden as special commissioner, and, the sale having been confirmed on September 30, 1879, a deed was made to the purchaser, the present defendant, who thereupon took possession, and has ever since collected the rents and profits. In respect to the service of process on plaintiff, the bill alleged as follows:

"Your orator further says that he never appeared or answered in said cause, and no one appeared for him, as by the orders and record therein, still remaining in the district court aforesaid, fully appears. Nor was there any service of the subpoena upon him otherwise than that the following return appears upon the subpoena issued in said cause, and which is on file with the papers thereof:"

" J. C. Hays, S.H.C., is hereby appointed special bailiff to execute the within subpoena on J. S. Martin and Mary A. Martin, February 13, 1878."

" R. H. CRITTENDEN"

" U.S. Marshal"

" Executed the within spa. on J. S. Martin and Mary A. Martin by delivering a copy to each in person, February 14th, 1878."

" R. H. CRITTENDEN"

" U.S. Marshal"

" J. C. HAYS"

" S.H.C., Special Bailiff"

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Page 142 U. S. 238

"And that there was no such service also appears from the record and papers in said cause still remaining therein; yet, although your orator never appeared or answered in the cause, and was never subpoenaed to answer therein, the complainant in said cause,"

etc. Upon these facts, the bill prayed for a decree setting aside the commissioner's deed and for an accounting as to the rents and profits received by the defendant. A demurrer thereto was sustained, and the plaintiff electing to stand by the bill, a final decree was entered dismissing it. From this decree plaintiff appealed to this Court.