MAXWELL V. KENNEDY, 49 U. S. 210 (1850)

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U.S. Supreme Court

Maxwell v. Kennedy, 49 U.S. 8 How. 210 210 (1850)

Maxwell v. Kennedy

49 U.S. (8 How.) 210


A lapse of forty-six years is a bar to relief in equity, although the creditor, during all that time, supposed the debtor to be insolvent and not worth pursuing, where it appears that for a considerable portion of that time he was in a condition to pay, and the creditor might, by reasonable diligence, have discovered it, and recovered the money by a suit at law.

Where, upon the case stated in the bill, the complainant is not entitled to relief by reason of lapse of time and laches on his part, the defendant may demur.

The bill was filed in the court below by Maxwell, the appellant, chanrobles.com-red

Page 49 U. S. 211

against the above-named defendants, as the heirs of William E. Kennedy. Joseph and Martha Kennedy were his children, and Jesse Carter and Daniel E. Hall had married his daughters.

As the sole question which came up to this Court was the correctness of a judgment of the circuit court in sustaining a demurrer to the bill, it is only necessary to state the substance of it.

The bill averred that on 10 November, 1797, Robert Maxwell, the intestate of the complainant, recovered a judgment in South Carolina, against William E. Kennedy, the ancestor of the present defendants. The judgment was for 1,000 sterling, and costs, 114 9s. 2d., no part of which was ever paid.

That immediately after the rendition of the judgment, in order to avoid the service of a capias ad satisfaciendum which had been issued, and also to avoid being apprehended for the murder of the said Maxwell, for which he had been indicted, Kennedy fled from South Carolina. Two or three years afterwards he was apprehended in Georgia, brought back to South Carolina, tried and acquitted. At this time he was stated in the bill to have been insolvent. Immediately afterwards, he returned to Georgia, where he remained for four or five years, still insolvent, so that no effort could have been successfully made to collect the above-mentioned judgment.

That after the expiration of that time Kennedy left Georgia, without its being known to anyone in that part of South Carolina where he had gone, until about three years before his death, when, some time in the year 1822, it was ascertained that he was living in Mobile. That he was then residing with his brother, one Joshua Kennedy, and apparently dependent upon him for support. That when Kennedy went to Mobile, it was in a foreign country, and little or no intercourse existed between it and South Carolina; nor was there for a long time after it had been ceded to the United States. That while Florida was yet a Spanish province, viz., in the year 1806, the said Kennedy acquired an imperfect title to a considerable estate in land, of which, however, the complainant was entirely ignorant. That on 13 December, 1824, he conveyed this estate to his brother, Joshua Kennedy, for the consideration of $10,000, which, the bill averred, had never been paid.

That it was not until after the date of this deed, that the complainant discovered that William E. Kennedy was living, and he was then wholly without property.

That in the year 1805, he had married a female subject of chanrobles.com-red

Page 49 U. S. 212

the Crown of Spain, who owned considerable real and personal estate, all of which was settled upon her previously to the marriage.

That on 9 April, 1825, William E. Kennedy died. Joshua Kennedy administered upon the estate, and returned an inventory to the orphans' court, amounting in value to $267. Up to the time of Joshua's death, which took place in 1839, he constantly represented his brother William to have died insolvent, and these representations prevented the complainant from attempting to enforce the long-standing judgment.

That on or about 22 April, 1839, the heirs of the said William E. Kennedy, viz., the defendants in the present suit, filed a bill in the Court of Chancery of the First Chancery Division and Southern District of the State of Alabama against the heirs and executors of Joshua Kennedy and obtained a decree against them, which, on an appeal to the supreme court of Alabama, was confirmed. This decree adjudged that the deed of 13 December, 1824, was not made upon any consideration valuable in law, but for the purpose of securing an adequate provision for the children of the said William. It therefore further adjudged that the heirs of William were entitled to one-half of the unsold lands, and one-half of the proceeds of all which had been sold.

The bill then proceeded to aver, that a compromise had been made by the heirs and representatives of these two brothers, a discovery of which was prayed, and that, when made known, the share of the lands so conveyed to the heirs of William E. Kennedy might be held bound to satisfy the judgment obtained by the intestate of the complainant. It concluded with a general prayer for other and further relief.

One of the exhibits attached to the bill was a copy of the decree just mentioned, in the case of Joseph S. Kennedy and others, Heirs of William E. Kennedy, Complainants v. Executors and Heirs of Joshua Kennedy, which decree was passed on 28 November, 1840.

To the bill filed by Maxwell in the circuit court of the United States against the heirs of William E. Kennedy the defendants demurred.

In May, 1845, the cause came up for argument upon the demurrer, when the circuit court sustained the demurrer and dismissed the bill.

From that decree the complainant appealed to this Court. chanrobles.com-red

Page 49 U. S. 218


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