Harwood v. Railroad Co.

delivered the opinion of the court.

We are of opinion that the judgment must be affirmed, for two reasons:

1. Mr. Carlisle, the plaintiff in the suit in which the decree is sought to be vacated, is not a party to this proceeding. In the former suit all the forms of law, at least, were complied with. The parties having interests which it was sought to foreclose were made parties, a decree was taken in the ordinary form that they be foreclosed and that the property be sold. A sale, was had. under which the present defendants claim title. This was done' upon the prayer of. *81 Mr. Carlisle, by his authority] and upon his procurement. Third parties now come into court and ask that all these proceedings, completed according to the forms of .law, and sanctioned by the decree of. the court, taken at the request of Mr. Carlisle and for which he is responsible, be vacated and declared fraudulent and void. This is sought to be done without his knowledge, and no opportunity is given t.o him to sustain his decree or to rebut the alleged fraud, and no reason or excuse is given why he is not made a party. This is agaiust authority and principle. No case is cited to justify it, and it is believed that none can be found. The judgments of courts of record would be scarcely worth obtaining if they could be thus lightly thrown aside. The absence of the plaintiff in the original suit is a fatal defect. *

2. We are of the opinion also that there has been too great delay iu initiating this suit, and that no sufficient excuse is given for it. The sale was made five years before the commencement of this suit, and it .is fairly to be inferred from the bill that the plaintiff’s were aware of the proceedings as they progressed. Their knowledge of the mortgage sale is expressly admitted. The allegation of ignorance is, in general terms, of the fraudulent acts and arrangements. They do not allege when they acquired the knowledge, nor give a satisfactory reason why it was not sooner obtained. For aught that appears they have slept upon their knowledge for several years. Without reference to any statute of limitations, the courts have adopted the principle that the delay which will defeat a recovery must depend upon the particular circumstance's of each case. This case does not show a sufficient degree of diligence to justify the overthrow of a decree of foreclosure, under which new rights and interests. must necessarily have arisen. † J '

T Judgment affirmed.