McNair v. Toler

21 Minn. 175, 1875 Minn. LEXIS 89

• Court: Supreme Court of Minnesota
• Decided: January 2, 1875
• Status: Published

Opinion

Young, J.

In his complaint, to which the defendants have jointly demurred, the plaintiff prays that the judgment rendered against him on November 14, 1862, and all other proceedings in the suit entitled S. H. Toler against Evander McNair, may be vacated ; that a sale and certificate of sale of certain real estate to the plaintiff in that action, under an execution issued on the judgment therein, may be declared void and cancelled; that the defendant, S. H. Toler, maybe decreed to have no interest in such real estate; that the obligation given by the plaintiff to the defendant, W. H. Toler, and upon which that action was brought,- may be reformed ; and for other relief against W. H. Toler, based on the obligation as reformed. The ground on which it is sought to set aside the judgment, etc., is fraud in the proceedings by which it was obtained. It is also charged that the sale on execution was irregular, for want of proper notice.

The complaint leaves it somewhat uncertain whether the real plaintiff in the former suit was, 1, the now defendant, Mrs. S. H. Toler; or, 2, the defendant, W. H. Toler, suing in the name of Mrs. S. H. Toler; or, 3, the defendant, W. H. Toler, suing in the name of S. H. Toler, apparently that of his wife, but, in fact, entirely fictitious and belonging to no existing person; or, 4, some person to the plaintiff unknown, suing in the fictitious name of S. H. Toler ; and all these different aspects of the complaint were presented in the argument of the appellant.

1. Unless the defendant Mrs. S. H. Toler is the same person who purchased at the execution sale, (and therefore the same person who was plaintiff in Toler v. McNair,) the complaint shows that she is in no way connected with the proceedings sought to be vacated, and has no interest in the subject-matter of the suit, and therefore shows that the plaintiff has no cause of action against her. Newman v. Home Ins. Co., 20 Minn. 422.

In his argument, the plaintiff’s counsel says that Mrs. Toler is made defendant that she may assert or disclaim title. But this is a suit in equity, in which the complaint must show, (among other things,) the defendant’s interest in the subject-matter of the suit. This is not an action under the statute to determine adverse claims to real property, and the complaint does not state that the plaintiff is in possession of the land sold, or that the land is unoccupied, one or the other of which allegations is essential to a complaint in such an action.

2. If Mrs. Toler was the plaintiff and purchaser, the complaint states no cause of action against either of the defendants. If Mrs. Toler was plaintiff in Toler v. McNair, no fraud could have been committed in that action. All the allegations of fraud in the complaint are based upon the assumption that Mrs. Toler was not the plaintiff. It is objected that Mrs. Toler, as a feme covert, was, by the laws of her domicile, the State of Tennessee, incapable of making a contract or bringing a suit, and that this disability attached to her as plaintiff in the former action, though brought in this state, and rendered all proceedings therein wholly void. But this objection should have been taken by answer in the former action; and, not having been so taken, the now plaintiff could not have availed himself of it even in that suit; still less can he now use it as a ground of setting aside the judgment.

3. If the now defendant W. H. Toler was the real plaintiff and purchaser, whether suing in the name of his wife, or in a fictitious name, the complaint shows no sufficient ground for setting aside the former judgment as fraudulent. It is alleged that prior to the bringing of that action, W. H. Toler informed the plaintiff that he had sold the obligation or memorandum before mentioned, to his brother, S. H. Toler, whereas he had not sold it, and he had no such brother; that he procured some person to personate and represent himself to be S. H. Toler, and thereby caused the former action to be commenced in the name of S. H. Toler; that he caused a writ of attachment to be issued in the name of S. H. Toler; that he caused execution to be issued on the judgment, and levied on certain real estate, and the real estate to be sold to the plaintiff in that suit. It is charged that all these things were done fraudulently, and with a design to injure the plaintiff, that the suit was fictitious, and that no such person as the nominal plaintiff therein ever existed. But the plaintiff wholly fails to show wherein he has been damaged by any of the alleged fraudulent acts. The obligation sued on was not negotiable. For anything that appears, every defence was open to Mm in that action which he could possibly have urged, if W. H. Toler had been the plaintiff in name as well as in fact, together with the additional defence, (which was actually made,) that the plaintiff on the record was not the real party in interest. There is nothing in this complaint to show that any judgment more favorable to this plaintiff would or could have been rendered, had TV. H. Toler sued in his own name, than that which it is now sought to set aside. The only defence he now sets up to the cause of action in the former suit, viz., the mistake in the obligation sued on, was known to him when that action was brought, and should have been pleaded, then, if ever. That the “ abundant evidence ” he then possessed to disprove the assignment of the cause of action to the nominal plaintiff in the action, was not communicated by him to his attorneys, is no ground for setting aside the judgment. If plaintiff was deceived, it was not to his damage.

It is further alleged that, in his deposition in the former action, TY. H. Toler gave testimony false and wilfully untrue, and that solely by means of this wilful and false testimony, the court was enabled to render the judgment in question. Whether in any case, where the defendant has appeared and defended, a judgment against him can be set aside as fraudulent, because of the admission of false testimony on the merits, is a question we are not called on to-determine. See, however, State v. Bachelder, 5 Minn. 223, 244. The complaint in this case sets forth the memorandum or obligation signed by the now plaintiff, upon which it is evident the former action was brought, and which the plaintiff recognizes as a valid obligation for the payment of money. The legal effect of tins instrument was determined in Toler v. McNair, (reported as McNair v. Toler,) 5 Minn. 435. The complaint in that action, (as set forth in this complaint,) pleads this obligation according to its legal effect, and alleges an assignment of it to the plaintiff on the record, S. H. Toler. The now plaintiff appeared in that action by attorneys, whose retainer by himself he does not now deny, and answered the complaint by a general denial of all the allegations therein, a particular denial of the assignment, and an averment that the pretended claim belonged to W. H. Toler. The plaintiff does not set forth the tenor or the substance of W. H. Toler’s testimony, or state any matter to which he swore; but as every averment in the former complaint is stated in this to be true, (except that of the assignment to S. H. Toler,) and as this complaint expressly states that “the only issue made by the pleadings was the ownership of such claim or demand,” the witness W. H. Toler, giving testimony material to that issue, could not have sworn falsely to anything unless to the assignment; and however reprehensible his conduct, it could not, for reasons already stated, have injured the plaintiff to his damage. The alleged wrong was injuria sine damno.

It is contended that the courts of Minnesota could not lawfully entertain a suit in which both plaintiff and defendant were alien enemies. The suit of Toler v. McNair was begun before the late war; but the answer appears to have been filed November 8, 1862. The objection that the plaintiff was technically an alien enemy, like all other objections to his (or her) capacity to sue, was waived by the omission to plead it in abatement. The case must stand as if the then plaintiff were under no disability, and the defendant alone was an alien enemy, which would of itself be no defence to the action, even if seasonably pleaded. University v. Finch, 18 Wall. 106. In his argument, the plaintiff by his counsel insists that, in the former suit, the attorneys who appeared for him appeared without his knowledge or consent, and were guilty of bad faith towards him, and of collusion with the adverse party. Ho also contends that, under the act of congress, and the proclamation of the President, of August 16, 1861, it was unlawful for him, as a resident and citizen of Arkansas (or of Mississippi,) to employ or communicate 'with attorneys in Minnesota; and that, therefore, it must be presumed that he did not employ them. But in the absence of a positive averment in the ■complaint that he did not authorize them to appear, we do not think its place can be supplied by the not very cogent presumption of strict obedience on the part of citizens and residents of the states of Arkansas and Mississippi, in the year 1862, to acts of congress, and President’s proclamations. Moreover “the liability of an alien enemy to be sued, carries with it the right to use all means and appliances of defence,” including the right to employ attorneys to conduct that defence. McVeigh v. United States, 11 Wall. 259. The charges of fraud and collusion made in the argument are not based on any averment of the complaint.

4. Another aspect of the case remains to be considered. The plaintiff’s counsel insists that his'complaint shows that neither the defendant W. H. Toler, nor the defendant Mrs. S. H. Toler, was the plaintiff in the former suit; but that the only plaintiff in that suit was a mere name, S. H. Toler, a name apparently identical with that of the defendant Mrs. S. H. Toler, but, in fact, wholly fictitious ; in short, that there was no plaintiff in the former action, and hence no action, and no judgment. But it is expressly alleged in this complaint that the former suit was founded on an actual, existing cause of action, viz: the same obligation now sought to be reformed. It is also expressly alleged that W. H. Toler procured some person to plaintiff unknown to personate and represent himself to be S. H. Toler, and thereby caused that action to be commenced; and that W. H. Toler then owned and still owns the cause of action on which it was founded. There was, therefore, in that action, according to the plaintiff’s own showing, a real party plaintiff, in fact as well as in name. The suit was therefore not fictitious, but real, involving “a real interest, a real argument, a real prosecution, a real defence, a real decision,” and real parties ;'and the judgment was “a judicial determination of a cause agitated between real parties, upon which a real interest has been settled.” Earl of Bandon v. Becher, 3 Clark & Fin. 479, 511. In the cases cited by the plaintiff’s counsel, either the suits were wholly fictitious, and not suits brought on real causes of action by real parties under fictitious names, or the objection that the nominal plaintiff was not an existing person, or not the real party in interest, was seasonably taken.

In the former action, the assignment of the cause of action to the nominal plaintiff, and the interest of that plaintiff in the suit, were put in issue by the pleadings ,• and the judgment therein was an adjudication, as between the parties thereto, that S. H. Toler, the nominal plaintiff, was the holder and owner of the cause of action sued upon. If that S. H. Toler was the now defendant Mrs. S. H. Toler, or if W. H. Toler was the real plaintiff, suing in the name of S. H. Toler, then, as has been shown, the complaint shows no ground for vacating the judgment. If, on the other hand, the person named in that complaint as S. H. Toler, who brought that suit, and who purchased at the execution sale, was neither the now defendant Mrs. S. H. Toler, nor the defendant W. H. Toler, then the complaint not only states no cause of action against the present defendants, but also shows upon its face that there is a defect of parties defendant, the one person against whom this action to avoid the judgment could properly be brought, not being made a defendant.

It is alleged in the complaint that the notice of the execution sale was not posted at the place of sale, and this omission is urged as a ground for setting aside the sale. But the law then in force (Pub. Stat. ch. 61, § 111,) expressly provides that the omission of the sheriff to give the statutory notice shall not affect the validity of the sale.

As the complaint, upon any construction of its language, fails to state a cause of action, the demurrer was properly sustained.

Order affirmed.