62 Pa. 408 | Pa. | 1870
The' opinion of the court was delivered,
All the assignments of error may be considered together, as they rest upon the same principle.
Now if Degmier and wife in this instance had pleaded, and gone to trial on the question of how much was due on the mortgage, and the verdict of the jury had been for the full amount, no one, I think, would pretend that the creditors would have any right, in law or equity, to have that question tried over again, unless on the ground that the first trial was collusive and fraudulent, as to them. The statute 13 Eliz. c. 5, has been said to have been declaratory, and to have done nothing which the common law would not have done without it, but we must at least receive it as a true and accurate declaration of what the law was. It declares void “ feigned, covinous and fraudulent judgments when devised and contrived of malice, fraud, covin, collusion or guile, to the end, purpose and intent to delay, hinder and defraud creditors.” No doubt, creditors might showjhat a debtor, who had a good defence and ground for opening a judgment confessed, or by default, pertinaciously and wilfully refused to make application or allow his name to be used for that purpose; for it would be very cogent evidence that if the original judgment was not collusive, it was kept on foot for the purpose of defrauding them. Indeed, I am not sure that a court, in the exercise of their equitable powers, would not, in such a case, allow the creditors to come in, open the judgment and take defence in the name of the defendant. Such appears to have been the opinion of Chief Justice G-ibson. “ Creditors,” says he, “ can attack a judgment collaterally only for collusion, not for matter of defence, original or subsequent. A debtor or his representative may have a judgment against him opened on ground laid, and when let into a defence on the merits reduce or discharge it; nor will I say that if he were to refuse to move for the benefit of his creditors they would not be permitted to move in his name. An insolvent man is not suffered to give away his property by means of a judgment, which, though proper at first, has become a security for less than the amount of it; but, while it - stands as a debt of record, unabated in whole or part, neither the sheriff nor an antagonist creditor - can resist the enforcement of it as a lien:” Lewis v. Rogers, 4 Harris 21. Nothing can be more just, consistent and symmetrical than the system of administering the law here indicated; for while it gives a remedy for every wrong, it saves the records of the court from the strange anomaly of a judgment found by the verdict of a jury to be a fraud upon the defendant, and yet standing as a perfectly valid security, which can be enforced against him. Besides this, I may mention that, according to the rules of evidence which existed before the passage of the late Act of Assembly making parties competent witnesses in their own favor, gross injustice
Considering, then, the issue in the court below to have been in form such as it ought to have been on the petition and order, if it had been regularly framed, it is clear that no error was committed by the learned judge below, either in the rulings, answers or charge, of which the plaintiffs have any right to complain. The jury were instructed that if they believed that Degmier confessed the judgment for ipore than was due, with the corrupt intention of encumbering the property in order to hinder, delay or defraud his other creditors, then their verdict should be for the plaintiffs. As the -verdict was for the defendant generally, it is unnecessary to consider whether the court was right in charging that if they found that the judgment had been fraudulently confessed for too much, they should, nevertheless, find for the defendant in the issue, and plaintiff in the judgment, the amount which was actually and honestly due to him.
Judgment affirmed.