Majority
p. 402A. C. F. & G. Reigal against Wood and others. April 14th.
Headnote
Equity grants relief, not only against deeds, writings, and solemn assurances, but against judgments and decrees, obtained by fraud and imposition.Where an attorney revived,by scire facias, an old outstanding judgment, on which but a very small sum, if any thing, was due, and knowing that the land on which the judgment remained a lien, wasin the possession of innocent and bona fide purchasers; and afterwards made use of the judgment to compel the purchasers, who were ignorant of the proceedings under the scire facias, to pay and secure to him a debt he claimed against the person under whom they had purchased; this court, on the groundof imposition and undue advantage taken by the attorney, ordered him to refund the money he had so obtained, and setaside the securitieshe had taken, with costs.
THE bill, which was for an injunction, stated, that on the 23d of January, 1801, the plaintiffs purchased of John Smith, 200 acres of land in lot No. 54., in the township of Manlius, for 1,900 dollars. That the land was then subject to a mortgage by Smith to Michael Myers, for 800 dollars, which the plaintiffs paid to Myers, who agreed that the mortgage might remain for their use, and to secure their title. The plaintiffs took possession of the land, which they divided equally between them. That, in June, 1810, the plaintiffs were informed that Thaddeus M. Wood, defendant, had
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caused the land to he sold, at the sheriff’s sale, under a judgment in the name of Daniel Avery, (defendant,) against John Smith and Aaron Wood, obtained 13 or 14 years ago, in the Onondaga court of common pleas, on a sory note for sixty dollars, for goods sold by Avery, as trustee, to one Dickhout, an absconding debtor. That the defendants, T. M. Wood and George Hall, purchased the land at the sheriff’s sale. That the plaintiffs applied to Wood on the subject, who, at first, agreed to accept 40 dollars on the judgment, and release the purchase, but afterwards demanded payment of another judgment against John Smith, in favour of Peter Smith, for 300 dollars, which Wood alone, or in conjunction with two of the defendants, Isaac and John Delamater, had before purchased of Peter Smith. That the plaintiffs, through ignorance, yielded to the terms demanded, and gave Wood their bonds and mortgages on the premises, for 308 dollars, payable in a short time, with interest. The sum being divided into four equal parts, for which four bonds were given, and Wood and Hall released their claim to the land to each of the plaintiffs separately. That, afterwards, on investigation, the plaintiffs found that John Smith, after the judgment against him, in favour of Avery, had paid the amount of the judgment to John Rappelye, the creditor who had instituted the proceedings against Dickhout, and had paid, in boards, the costs to Wood. That Wood, in order to overreach the purchase of the land by the plaintiffs, had caused the judgment to be revived by scire facias, without the knowledge or consent of Avery or Rappelye ,* and that John Smith, being insolvent, aged, and having removed out of the county, did not attend to the suit. That the judgment of Peter Smith was assigned as above mentioned, with an express agreement that the land of the plaintiffs should not be affected by it, and made solely for the purpose of securing and protecting another piece of land claimed by Wood and the Delamaters. That on the revival of the judgment by the scire facias, Wood well knew, of the purchase of the
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land by the plaintiffs, and their settlement thereon: that the plaintiff, Frederick Reigal, has paid off his mortgage to Wood; but the other plaintiffs being unable to pay, Wood has advertised their lands for sale, under the mortgage, and also put their bonds in suit. And the plaintiffs prayed for an injunction to stay his proceedings, and for relief, &c.
The' answer of Thaddeus M. Wood denied all knowledge of the mortgage to Myers, and of the plaintiffs being in possession at the time of the sheriff’s sale under the judgment. This defendant also stated, that a judgment was obtained in January, 1789, against John Smith and A. Wood, on notes ■ given to Avery and James Bennett, for 67 dollars and 90 cents damages, and 20 dollars and 81 cents costs. That, on the 25th of February, 1800, Smith paid 64 dollars on the judgment, and no more. That, in November, 1807, a scire facias was issued to revive the judgment, which was served personally on Smith, who appeared by attorney, and pleaded payment; and on a trial, in September, 1809, a verdict was found for the plaintiff for 88 dollars and 77 cents, on which a ■ judgment was docketed the 17th of Mov ember, 1809, and the costs taxed at 29 dollars and 63 cents. That, in April, 1810, a fi.fa. was issued on the judgment, and, on the 2d of June, 1810, the lot No. 54., in Manlius, was sold at the sheriff’s sale to the. defendant, Hall, who bid for the defendant, Wood, for the sum of two dollars, and a deed was executed to Hall and Wood. That, on the 10th oí June, 1810, some of the plaintiffs called on Wood, and informed him that they were in possession of the lot, and requested information, which he gave them, and referred them to the records. That they, afterwards, said that they were satisfied that the defendant, Wood, could hold the land under his purchase. That, at the request of the plaintiffs, he released the land to them, for the balance due on the judgment against Smith and Wood, the costs of the sci. fa., and his charges for attending the sale and. drawing the bonds and mortgages, recording, &c., amounting to 108 dollars, including sheriff’s fees, &c;, with
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the additional sum of 200 dollars, being part of a debt of 300 dollars which John Smith owed him, Wood, on his private account; and the plaintiffs gave him their bonds and mortgages for the above amount. That the defendant, Wood, did not pretend to hold the land by virtue offthe judgment in favour of Peter Smith ; that his offer to release was gratuitous, considering his title good under the purchase ; and he told the plaintiffs, that he ought to be secured part of his own debt against John Smith, who had become insolvent. That he offered to give up the bonds and mortgages, if the plaintiffs would reconvey the land, and place him and Hall in the situation they were in before.
That if John Smith ever paid any thing in boards, it was on his private account, and not on the judgment.
John Smith, who was examined as a witness, 77 years of age, and had been blind for the last twelve years, said, that he had paid Wood 64 dollars on the judgment, for which he had a receipt, which be had lost, and, afterwards, paid him the balance, including costs, in boards. He said that the purchase of the plaintiffs, who took possession of the land, and their possession, was well known in the vicinity, and the witness told Wood of it before the sheriff’s sale 5 that he had employed Wood as his attorney in various suits, and paid him all the costs due to him; that Wood never demanded payment of any thing until September, 1813; that the sci.fa. was personally served on the witness, who employed Forman and Sabin, attorneys, to defend the suit, but was never informed of the time of trial, nor did he know of it.
George Hall stated, that on the trial of the suit, on scire facias, in 1809, a verdict was taken for the whole amount claimed by Wood; and a stipulation in writing was given, than any receipts which might be produced, of payments on the judgment against Smith and Wood, should be endorsed on the execution to be issued on the judgment on the scire facias. It appeared, however, from the evidence of
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the deputy sheriff, that Wood endorsed on the execution delivered to the sheriff, directions to levy the whole amount, without any deduction.
Hall further stated, that he attended the sale, and was resolved to bid up so as to save the debt due him and Wood ; that Wood mentioned, at the sale, that Smith hadconveyed the land to some persons, but he did not know who they were. He remembered that Smith paid Wood some account in boards; that Wood told the plaintiffs he could hold the land on the purchase at the sheriff’s sale, but he only wanted to make himself whole against John Smith.,
Sabin, who was attorney for Smith, stated, that Smith, in 1808, being poor and blind, removed to Herkimer ; that he wrote to him concerning the scire facias, and Smith answered that the judgment had been paid; that he was old and poor, and it would not avail him to attend to it.
Gold, for the plaintiffs.
Kirkland, for the defendants.
It appears to me, from a view of all the facts and circumstances attending this case, that I am bound to consider the judgment upon the scire facias as unduly obtained, and that the defendant cannot, in justice and good conscience, be permitted to hold any advantage which he may have obtained under it. It is a well-settled principle, in this court, that relief is to be obtained not only against writings, deeds, and the most solemn assurances, but against judgments and decrees, if obtained by fraud and imposition. (Barnesly v. Powel, 1 Ves. 120. 284. 289.)
Wood, the principal defendant, admits, in his answer, that when he undertook to revive the judgment of Avery & Bennet v. Smith & Wood, there was but 3 dollars 96 cents of the debt due. His object, certainly, was not that small balance ; and it does not even appear that, as to that sum, he had any
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direction to issue the scire facias, from the persons in whose names it was issued, or to whom the money was due. It is evident his object was to secure another and larger demand against Smith, totally unconnected with the judgment, and that, as Smith was insolvent, as well as old, blind, and helpless, he sought to secure this demand by a contrivance calculated to defeat the title of the unsuspecting purchasers holding lands under Smith. It is in proof, that he knew that Smith had conveyed his interest in lot 54., in Manlius, to third persons; and the inference is irresistible, from his frequent intercourse with that town, that he knew that the land was in the actual occupation of the purchasers, and had received large and valuable improvements. No notice, however, is given to them, as ter-tenants, of the scire facias. We have reason to presume it was intentionally avoided, and he is content with a service of the writ on that very old and blind pauper, who had neither interest nor disposition to take care of the suit, and who, about that time, had gone, or removed, to a distant county. A verdict is, accordingly, obtained upon the scire facias, without any opposition from Smiths uninstructed counsel, for the whole amount of the original judgment, though he knew, at the time, that it had long before been nearly, if not entirely discharged. He issues his execution, and directs the whole of the judgment to be levied; and the sheriff, under his direction, sells, not upon the premises, but in another town, all the lands of the present plaintiffs, and which had cost them, eight years before, near 2,000 dollars. This sale, as well ás the previous proceedings, was unknown to the plaintiffs, and the lands were bid off by a partner of Wood, for his use, at a nominal sum. This partner says, that he bid to save the debt of him and Wood, and which, as it appears, consisted chiefly of an antiquated account of costs and charges, as attorneys for Smith. Having thus acquired a title, Wood imposes terms upon the plaintiffs as the previous owners of the land. He insists upon the payment of the principal part of his
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demand against Smith, and compels them to redeem their land by'giving him bonds and mortgages to the amount of 308 dollars. Smith denies that any part of that demand is due; _ and whether it be so or not, the settlement cannot be binding upon the plaintiffs ; for the same imposition which attended the judgment, also infected this settlement, as it was made by them, totally uninformed of their rights, and in ignorance of the fraud by which the judgment was procured.
I think the weight of evidence is, that the whole of the original judgment, costs as well as debt, had long before been satisfied. Smith testifies that he had paid not only the small balance of the debt, but the costs, in boards ; and, another witness (Hall) says, that Woodh&d the benefit of some boards upon some claim which Wood had against Smith; and in the account exhibited by Wood, in this cause, he gives no credit, and makes no mention of the boards.
Iam of opinion, therefore, that Wood cannot be permitted to acquire and hold any advantage whatever under the judgment obtained upon the scire facias, and that thewhole proceeding was an imposition upon the plaintiffs. I shall, accordingly, decree, that the bonds and mortgages mentioned in the pleadings be given up and cancelled, and that the money which has been paid upon one of the bonds and mortgages be refunded, with interest; and that the defendant, Wood, pay the costs of this suit; and that the bill, as to the other defendants, be dismissed without costs.
Decree accordingly,