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and offered to set off so much of the decree in favor of Todd mentioned in the answer of Smith as would satisfy the demand of the plaintiff.
Woolfolk, whose deposition was taken, testified that since October, 1868, Carlton, on whom the order of the court above mentioned was served, had not been his attorney, and that he himself had never heard of the petition of Todd until after the final decree had been rendered thereon, and that his wife, Lucy D. Woolfolk, had died in the year 1876, four years before the entry of the decree; that from the year 1856 until her death she had resided in Kentucky, and that he had resided there all his life. The deed of the receiver to Todd for the Belleview plantation was executed on October 28, 1868. It appeared from the evidence that Todd and the appellant Smith, who claimed under him, had been in possession of the mortgaged premises ever since that date.
Upon final hearing, the circuit court, on November 2, 1881, rendered a decree in favor of the plaintiff for $9,743, to bear interest from the date of the decree, and in default of payment ordered a sale of the mortgaged premises to satisfy the same. From this decree the defendants, Benjamin H. Smith and Springer, administrator of Todd, have appealed.
F. W. Compton and A. H. Garland, for appellants. U. M. Rose, for appellee.
WOODS, J. The decree of the circuit court was justified by the facts appearing of record, unless one or both of the defenses set up in the answers of Smith were maintained.
We shall consider first the defense of set-off based upon the record of the proceedings and decree of the circuit court of Chicot county. We are of opinion that the decree of the Chicot circuit court, made on the twenty-eighth day of October, 1878, was, so far as it concerned Joseph S. Woolfolk and Lucy D., his wife, a final decree in the cause, and they were bound to take no notice of the subsequent proceedings, unless they were served with process or entered their voluntary appearance. By that decree the rights of the parties then before the court, as stated in the original bill, and all the assets of the estate of Craig actually or constructively within the jurisdiction of the court, were disposed of. It is true, the receiver was directed by the decree to proceed to collect the available assets of the estate. But, as has been stated, only a small sum, barely sufficient to pay the receiver's compensation, was collected by him, and this he was allowed to retain by the decree of the court. The petition filed by Todd, and the proceedings thereon subsequent to the decree of October 28, 1868, had no reference to any additional assets collected by the receiver after that date.
If the matter set up in the petition of Todd had been offered as an amendment to the original bill when the latter was on final hearing and Woolfolk and wife were before the court, there is no rule of equity pleading and practice, or of the jurisprudence of Arkansas, by which such an amendment could have been allowed and have become the basis of a decree. Shields v. Barrow, 17 How. 130; Hardin v. Boyd, 113 U. S. 756; S. C., ante, 771; Walker v. Byers, 14 Ark. 246. As was said by this court in Shields v. Barrow, ubi supra: "It is far better to require the complainant to begin anew. To insert a wholly different case is not properly an amendment, and should not be considered within the rules on that subject." So that, even if the decree made on the original bill was not final, the petition filed by Todd was so radical a departure from the case made and relief prayed by the original bill as to be a new suit and require service of process on the parties made defendant thereto. It instituted a new litigation on new and distinct issues not raised by the original pleadings, and between parties who were complainants in the original
It is settled that one defendant cannot have a decree against a co-defendant without a cross-bill, with proper prayer, and process or answer, as in an
original suit. Walker v. Byers, 14 Ark. 246; Gantt, Dig. § 4559; Cullum v. Erwin, 4 Ala. 452; Cummings' Heirs v. Gill's Heirs, 6 Ala. 562; Shelby v. Smith's Heirs, 2 A. K. Marsh, 514. It follows, from the reason of this rule, that if one complainant can, under any circumstances, have a decree against another upon a supplemental or amended bill, it must be upon notice to the latter. After a decree disposing of the issues, and in accordance with the prayer of a bill, has been made, it is not competent for one of the parties, without a service of new process or appearance, to institute further proceedings on new issues and for new objects, although connected with the subjectmatter of the original litigation, by merely giving the new proceedings the title of the original cause. If his bill begins a new litigation, the parties against whom he seeks relief are entitled to notice thereof, and without it they will not be bound; for the decree of a court rendered against a party who has not been heard, and has had no chance to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other court. Windsor v. McVeigh, 93 U. S. 274.
Upon the original bill, filed in the Chicot circuit court by Todd, it was not possible, therefore, for Todd to get a valid money decree against Woolfolk and his wife without new and adversary pleadings and service of process on Woolfolk, and giving him his day in court. Woolfolk and wife had the right to rely on these principles of law, and were not bound to take notice of the petition of Todd, and the proceedings thereunder. Todd and his counsel appear to have seen the necessity of notice to Woolfolk and his wife, and made an attempt to give them notice of the petition filed by Todd; but the record shows that no lawful notice was served on them. It fails to show notice of any kind. The only service which the defendants assert to have been made on Woolfolk and wife was the service on Carlton, as their attorney, who was not their attorney, but, as he averred, the attorney of Todd, the petitioner, and the mailing to their address by the sheriff of the copy of the order. Conceding that these kinds of service, if executed according to law, were good under the statute of Arkansas, which they are not, they would have been but substituted service, and could not support a personal decree against Woolfolk and wife. Pennoyer v. Neff, 95 U. S. 714; Harkness v. Hyde, 98 U. S. 476; Brooklyn v. Insurance Co. 99 U. S. 362; Empire v. Darlington, 101 U. S. 87.
It follows that the record of the proceedings and decree of the circuit court of Chicot county, subsequent to the decree made in the case of The Creditors of Junius W. Craig v. Emma J. Wright, Executrix, and others, on October 28, 1868, was not binding upon Woolfolk and wife, and could not be received in evidence against them. As this record contained the only proof offered by the appellants of any set-off, in behalf of any one whatever, against the mortgage debt due from Todd to Woolfolk, which the present suit was brought to enforce, it follows that the defense of set-off pleaded in the answers of the appellants failed for want of proof, even conceding that they were entitled to make the set-off.
It remains to consider the plea of the statute of limitations. The note secured by mortgage, which is the basis of this suit, fell due October 30, 1870, and the suit was brought October 27, 1879. It is insisted that the suit to foreclose the mortgage was, under the law of Arkansas, barred in seven years from the maturity of the note. In the case of Birnie v. Main, 29 Ark. 591, it was declared by the supreme court of Arkansas that "to bar a suit for the foreclosure of a mortgage, there must not only be an adverse possession for such length of time as would bar an action of ejectment, but there must be an open and notorious denial of the mortgagee's title; otherwise the possession of the mortgagor was the possession of the mortgagee." And in Coldcleugh v. Johnson, 34 Ark. 312, it was said by the same court that "the possession of a mortgagor is not to be deemed adverse until he makes some claim or does some open and notorious act adverse to the rights of the mort
(115 U. S. 151)
gagee." See, also, Hardin v. Boyd, 113 U. S. 756; S. C., ante, 771. The only evidence in the record of any such act by either Smith or Todd was the denial by Todd-in his answer filed on April 18, 1876, in a suit brought by Woolfolk against him in the circuit court of Owen county, Kentucky, on one of the mortgage notes-that he was indebted to Woolfolk thereon. Up to that date, at least, the possession of Todd and Smith was the possession of Woolfolk. This suit to foreclose the mortgage was not therefore barred. Decree affirmed.
PHILIPPI v. PHILIPPE and others.
(May 4, 1885.)
1. EQUITY-Statute of LIMITATIONS-EXPRESS TRUST-REPUDIATION OF TRUST. Notwithstanding the rule of equity that the statute of limitations does not run against an express trust, if there is a repudiation of the trust by the trustee, and a claim made by him upon the property as his own, and such repudiation and claim brought directly to the notice of the beneficiary, the statute will begin to run from the time when the repudiation and claim came to the knowledge of the beneficiary.
2. SAME TRUSTS-How ArFECTED BY PASSING OF 20 YEARS FROM TIME OF POSSIBLE SUIT ALABAMA.
In Alabama the elapsing of 20 years from the time proceedings could have been instituted for the settlement of a trust raises the presumption of a settlement. 3. SAME-LIMITATIONS IN ALABAMA-EXCEPTION FROM ITS EFFECTS IN THE YEAR OF SE
The exception of the time between the eleventh of January, 1861, and the passage of ordinance No. 5, 22, by the Alabama constitutional convention of 1865, does not apply to the passing of 20 years, the lapse of which raises the presumption of payment.
Appeal from the Circuit Court of the United States for the Southern District of Alabama.
The appellant was the plaintiff in the circuit court. The original bill was filed October 20, 1879. It was demurred to, and the demurrer sustained. The plaintiff having obtained leave to amend, filed an amended bill, in which he stated his case substantially as follows:
The plaintiff is the son of Angelo M. Philippi, deceased. Some time previous to the year 1845 the said Angelo M. Philippi and Antonio Philippe, his brother, one of the defendants, were equal partners in carrying on in the city of Mobile, in the state of Alabama, a boarding-house and saloon, in which business they prospered. In 1845 Angelo decided to revisit his native country, the island of Corsica. Before leaving Mobile he placed all his affairs, business, money, and property in the keeping of his brother Antonio to manage for him; and the latter having accepted the trust, Angelo left the United States and went to Corsica. Antonio, after the departure of his brother, continued the partnership business for the joint benefit of both. He managed his brother's affairs and property and the partnership business with such skill and success that in May, 1847, he had in his possession the sum of $10,000 belonging to Angelo, upon which he agreed to pay interest. For the year ending November, 1847, the profits of the joint business were $8,000, and the joint income from their slaves for the same period was $4,500. For a time Antonio kept true accounts of these profits and incomes, fixing Angelo's share therein. He invested these accumulated gains of himself and his brother Angelo in real estate, taking, however, the titles in his own name.
In the year 1848 Antonio held, as the joint property of himself and Angelo, six houses and lots in the city of Mobile, valued at $26,000. Subsequently to 1848 he bought a large amount of real estate, which he paid for out of the profit and incomes derived from the trust funds and from the slaves and business jointly owned by himself and his brother. During their
long separation the relations of the brothers continued harmonious, and a correspondence was kept up between them. By letters dated, respectively. May 5, 1847, and March 7, 1848, written in the Italian language, addressed by Antonio to Angelo, translations of which, marked Exhibits D and E, are attached to the bill, the former acknowledged the trust. Angelo returned from Europe in December, 1856. Antonio did not deny the admissions made in the letters of May 5, 1847, and March 7, 1848, or repudiate the trusts therein acknowledged, but promised to render a true and just account of the partnership, and trust affairs to Angelo, and to make a final settlement of the same; but he delayed doing so, from time to time, and never made said statement of account or final settlement. Subsequently, by papers marked Exhibits F and G, attached to the bill as parts thereof, Antonio expressly acknowledged the trust. Angelo, being of foreign birth, and imperfectly acquainted with the English language, and being also a man of few associates, and those few foreigners, ignorant, as he himself was, of the English language, never became fully informed of his rights and remedies, under the laws of this country, against his brother Antonio, and was averse to litigating with his brother, and repeatedly declared that the thought of a lawsuit with his brother was repulsive to him, and chose rather to hope that his brother would ultimately fulfill his promise to account to him and render to him what was his due. Upon his return from Europe, in December, 1856, Angelo was possessed of but scanty immediate means, while the defendant Antonio had at his disposal much wealth. Angelo remained in Mobile, after his said return, until his death, which occurred May 1, 1874, and was in a condition of poverty, and at times almost of distress, and died leaving his family in want. The translation of the letter of May 5, 1847, (Exhibit D,) written by Antonio to Angelo, contained the following passage "2. Further, the certificate made by the hand of a notary as (that) I hold 10,000 dollars of thine in my hands, which I pay thee interest." This is the only part of the letter pertinent to the case. The translation of the letter of March 7, 1848, (Exhibit E,) contains the following passage, which is the only one referring to the present controversy:
"Now let us speak a little of our affairs. I will tell thee that I have arranged the accounts the first of November, on which the profit of the affairs which we hold together are 8,000 dollars; 4,000 dollars I have marked them for thee to thy credit, which I wish that thou make me know what I must do with it,-if thou wishest that I send them to thee, or wishest that I should do business with them for thy account. Since thou hast left I have made purchases; the house in which I am, 13,000 dollars. I have had a very beautiful one built on Dauphin street, cost 7,000 dollars; bought one in the same street, which thou knowest, where Colobo keeps his bar-room, cost 6,000 dollars; thus counts 6 houses which we hold. The negroes give me of interest the sum of 4,500 dollars a year without our trade. Thus, dear brother, thou knowest well what is mine has been and always will be thine, and thou I am persuaded thy sentiments are the same. For this I wish to tell thee thou hast no need that the interest should keep thee melancholy."
Exhibit F, appended to the bill, is a copy of a petition filed by Antonio, in a suit brought against him in the chancery court of Mobile county by the administrator and heirs of Angelo, to enforce the same trust set up in this case. Antonio, in this petition, which was under oath, after denying that he was indebted to his brother Angelo at the time of his death in any amount whatever, stated that the bill filed against him required him to admit or deny the making of a writing under his hand acknowledging the trust set up in the bill; and as the writing was alleged to have been made more than 30 years before, he could not answer the averment of his having executed a writing of the effect charged without seeing it, and prayed that the plaintiffs in that case might be required to submit the same to his inspection.
Exhibit F, attached to the amended bill, was an affidavit made and filed in the present cause by Antonio, in which he stated that it was wholly untrue that he was in any manner indebted to the heirs of Angelo, as charged in the bill; that Angelo returned from Europe to Mobile in the year 1853, a fact not mentioned in the bill, and that while so in Mobile, and before he left again, a full settlement was made between him and the affiant of all matters of account, and that in such settlement a balance of over $900 was found to be due the affiant from Angelo, which he had never paid. The affidavit further stated that about the year 1872 Angelo had a claim upon an insurance company for property destroyed by fire, which became a subject of litigation; that, being destitute of means, Angelo applied to affiant to lend him money to support his family until he could recover the insurance money, and affiant lent him $800 on his agreement to repay the loan out of the insurance money when collected; that Angelo compromised his demand against the insurance company for $3,000, and his creditors set up their claims against the fund in the chancery court; and that in that proceeding Angelo filed the following affidavit: "That he is entirely destitute of property, except the money and proceeds coming to him from the said policy of insurance; that it constituted all the property he had in the world, except a few articles of household furniture and wearing apparel for his family, which he is advised by law is exempt from execution and levy. And this affiant," Angelo, "now shows to the court that he is advised by counsel that he is entitled to one thousand dollars as exempt from attachment, levy, or garnishment, and he claims this amount shall be left to him unaffected by the creditors or any of their proceedings in this cause," etc.
The affidavit of Antonio (Exhibit F) further stated that he received out of said insurance money, on his claim for the money lent to Angelo, the sum of $329.27, and the other creditors got a like pro rata share out of the same fund. Antonio Philippe, Angela F. Philippi, individually and as administratrix of the estate of Angelo M. Philippi, and the brothers and sisters of the plaintiff, children and heirs of Angelo M. Phillippi, were made defendants to the bill. The prayer was for a settlement of the partnership, and an account of its property, profits, and gains, and for a settlement of the trust, and that Antonio Philippe might be decreed to pay over to Angela F. Philippi, the administratrix, the one-half of all the gains and profits of the partnership, with interest, and to deliver to the plaintiff and to the defendants, heirs at law of Angelo M. Philippi, all the real estate purchased by him in his own name, with the trust funds belonging to Angelo, or with his share of the profits of the partnership, and for a partition between Antonio Philippe and the heirs of Angelo M. Philippi of all lands held by the former in his own name, purchased with the joint funds of himself and Angelo M. Philippi, and for other relief. The defendant Antonio Philippe demurred to the bill, and for grounds of demurrer, besides others, alleged that the cause of action set out in the bill was stale and barred by the statute of limitations of Alabama, and that the plaintiff, being merely one of the heirs at law of said Angelo M. Philippi, was not entitled to the relief prayed in the bill. The circuit court sustained the demurrer and dismissed the bill, and the plaintiff appealed.
Frederick G. Bromberg and L. R. Smith, for appellant. John A. Campbell, for appellees.
WOODS, J. We think that, upon the face of the amended bill, it is apparent that the plaintiff is not entitled to relief.
It appears from Exhibit G that Antonio Philippe contended that in the year 1853 he made a full settlement with Angelo, his brother, and that in such settlement there was a balance due to him from Angelo of over $900, which the latter had never paid. There is no averment in the bill that after 1853 there was anything due to Angelo from Antonio Philippe on account of the trust property or partnership business. It is true, the bill alleges that in 1856,