17 F. 98 | U.S. Circuit Court for the District of Colorado | 1883
(orally).
In the year 1881 the Brittenstine Mining Company owned six or eight mining claims in the county of Chaffee. In the course of its operations it had incurred debts which it was unable to pay, amounting in all to $5,000 or $6,000, and early in
At this point it may be proper to state also that while Mr. Hensley had been corresponding with the officers of the Brit-tenstine Company in New York, and with Mr. White, plaintiff in this suit, to some extent, as to the settlement of these claims, he had also been acting for certain parties in St. Louis and Leadville—five or six of them—called in the evidence the “Western pool.” These parties—some of them, all, I believe, but one—had been stockholders in the company, and had agreed together to unite in the purchase of the several claims against the company, with a view to secure the property to protect the interest which they had in the company—to protect themselves in respect to moneys which they had expended in behalf of the company, and so on. It seems to have been thought desirable on the part of all persons who were con-
We are unable to recognize the force of these suggestions. While it may be true that Hensley was without authority, and as agent of the company appointed to receive service of process, he would not have power under the statute to confess judgment in favor of any one, and bind the company in that way,—the judgment, therefore, was irregular, perhaps subject to reversal on that account,—-yet we do not think it is open to collateral attack. Upon a confession of judgment by a corporation, the Court in which the action is pending must of necessity judge of the authority of any natural person who may appear for the company in that behalf, whether it be an attorney at law or an agent of the company, and its judgment as to the right and authority of the person so appearing to bind the corporation, must be conclusive in all other proceedings where the same judgment is drawn in question. What the force and effect of such a confession shall be in any regular proceeding to vacate it, and in any Court of review to which it may be carried, is not for us to say. We think that the judgment of the County Court entered upon Mr. Hensley’s confession must be taken to be valid and binding upon the company. It is in evidence that the claim was a valid one; the amount for which judgment was given was due from the company'to Hensley; he assigned, upon good consideration, to Crow; his right to assign cannot be denied; and if there be any infirmity in the matter in respect to his right and authority to appear for the company and confess judgment in its behalf, that is a matter which can only be inquired of upon some proceeding to vacate and set aside the judgment.
In respect to the particular circumstances of this case, it is in evidence that some of the officers, certainly the vice-president in particular, knew of the entry of this judgment very soon after it was entered, and long before any sale was made under it. Mr. White, the purchaser of the property, and the plaintiff in this suit, knew something of it long before he became the purchaser of the property, and no step was taken by
In our view, and we think it should so be regarded in any Court of equity, these demands held by one party and for one purpose, should be regarded substantially as one thing, and one accepting payment of any part of them cannot deny Mr. White’s right to pay the remainder, without refunding what he has received from him. It is not competent for them to say, we will take part of the money in payment of these demands, and keep that because you have failed in respect to one, under some mistake of fact or law; we will hold on to this and deny your right to redeem, and keep the property also. We think that would be most inequitable and unjust, and, therefore, we propose to say to these defendants that they must refund the money, or admit the plaintiff’s right to redeem this property. The decree will be, that within thirty days from the date of entering the decree, the defendants refund the money received in partial payment of the several demands against this property, with interest; or, failing in that, that the plaintiff be allowed to pay the remainder, and to have a deed from these parties of such interest as they may have acquired or may acquire under these several sales. As to the sheriff the bill will be dismissed.
There is a point which I intended to advert to in the course of discussion, to which I may allude now: In respect to the sale of the property en masse, it is alleged in this bill, and not very well denied, that this property was sold in bulk, six or eight claims, whatever their number may be, as one claim; and upon that, the plaintiff contended, as it is decided in some
I believe that covers the whole ground.
It is pretty clear to us that plaintiff has no other right than to have this money back with interest. We are not disposed to maintain his possession by injunction.
If the defendants here get legal title from the sheriff they can assert that title in an action at law; we are not disposed to interfere in a suit of that kind.