10 Johns. 524 | Court for the Trial of Impeachments and Correction of Errors | 1812
The first question which I have chosen to consider, is, as to the effect of the hills being taken pro confesso against Stanly, circumstanced as this case is. If Stanly was the
It would require the most binding authorities to induce me to yield my assent to such a proposition as that set up by thé respondents’ counsel; and, indeed, the result would be extraordinary, for if one defendant entitled himself to a decree, where the interest is joint and inseparable, a decree must be made in his favour as to a moiety of the matter in issue, and against the other who made default for the other moiety; that is, the plaintiff would get one half of a decree, and the other defendant the other half. It cannot be so •, we must consider C&sora’s defence as enuring to the benefit of 5'lardy.
I now proceed to examine the merits of the case; and the first inquiry will be, whether Ciason has a right to avail himself of the judgment recovered by Low against Sands ? This will depend on the fact, whether Ciason and Stanly were sureties for Sands or not in that transaction. This fact admits of no doubt.
Ciason, in his answer, avers the fact of suretyship, and he groves it* First, the endorsement of j&mds’s note by Clastm
Now, though Sands has been guilty of a fraud, we are not to intend that he is perjured, nor will his executing fraudulent deeds have any other effect than to render him suspected, when he comes to swear in opposition to a more credible witness. But there is no proof at all, on the part of the respondents, impeaching the fact to which he deposes. It cannot, then, be doubted, upon any rules of evidence with which I am conversant, but that the fact is completely made out that Clason and Stanly endorsed Sands’s note as his sureties.
That a surety who pays a debt for his principal, has a right to be put in the place of the creditor, and to avail himself of every mean the creditor had to enforce payment against the principal debtor, is a principle which I had supposed incontestable. The case of Parsons and Cole v. Briddock (2 Vern. 608.) has never been questioned. In that case, the plaintiffs were bound as sureties for Mr. Briddock, and had counter bonds. Briddock0 the principal, was afterwards arrested, and Dr. Briddock became his bail, and judgment was obtained against the hail. The plaintiffs being sued on the original bond, were forced to pay the money, and then brought their bill to have the judgment obtained against the bail assigned to them, to be reimbursed what they paid, and it was held, and so decreed, that the judgment against the bail should be assigned to the plaintiffs, in order to reimburse them what they had paid, with interest and costs. Lord Eldon speaks of this case as a strong one, but by no means with disapprobation. It is a much stronger one than the case before us; here Low had a judgment against Sands, the principal debtor; he had a judgment also against Clason and Stanly, the sureties. The sureties pay the latter judgment; Low then does, voluntarily, what equity would compel him to do ; he assigns the judgment he held against Sands to Clason alone. This is not like the cáse of a bond by two obligors, where one of them pays the debt, and then wants to sue at law, in the name of the obligee. At this day, such a suit •would not entitle the obligor, who had paid the money, to any remedy which he could not have, in an ordinary suit in his own name, for money paid, laid out and advanced; but as to the bond, the
The doctrine contended for by the respondents’ counsel, that the lien created by Low’s judgment could not be extended and enforced in favour of Clason and Stanly, against Sands’s assignees, fhfcy being third persons, and strangers to it, is not sound. Thejr áre not third persons, but are precisely in the place of Sands ; besides, and which is also á sufficient answer to that objection, the liefi was not raised by the construction of equity, for it is a legal, not ah equitable lien. Low’s judgment was assigned to Clason solely; he, therefore, solely succeeded to Low’s lien. Stanly does not question that transaction ; Clason, therefore, must be deemed to have a distinct and separate right in that judgment.
The points next td be -considered are, whether Clason accepted the deed for the Washington lots, in such á manner as to conclude himself, and whether he has received 4,000 dollars in satisfaction of the other part of the agreement, and as a substitute for one half of the debt which was to have been paid out of á debt due Sands from the French government.
, There is no proof of the agreement or the acceptance of the deeds for the Washington lots, except Clason’s answer. His answer is certainly evidence against him; and it is also, on these points, evidence for him, unless disproved by one witness, and circumstances corroborating the testimony of that witness.
I can perceive nothing evasive in his answer upon these points; and should one part be susceptible of doubt and savour of evá- ■ ! sion, it would be incorrect to hold him down to that part, and disregard other parts of the answer which are full and explicit. Ah .answer, like any instrument, is to be construed by regarding it ás a whole, and by looking into the whole of it, and comparing one part with another. The mind of man is so ingenious, and the critic
I am persuaded that, but for an oversight, his honour the chan-, cellor would not have considered the answer evasive as to the payment of the 4,000 dollars.
The answer is full and explicit, that the conveyance for the Washington lots was left with the appellant, as he supposes, in part performance of the agreement; but he denies that he accepted, or agreed to accept, the same, in any manner, or for any Other purpose than the agreement, and that he gave no receipt for it.
Then3¡ as I construe the answer, the deed was received by Clason in expectation of the fulfilment of the agreement and he has suffered it to remain in his custody as an inchoate transaction, as one step taken towards the performance of an entire contract» He has a right, therefore, to insist that it did not operate as a performance of the agreement.
I cannot conceive how the answer could be. more full than it is> in denying the payment of the 4,000 dollars. Clason says that yeither he, nor any other person for him, hath received any estate or effects, real or personal, from Sands, or any other person, in satisfaction, or upon any agreement or understanding whatever, for or towards satisfaction of the moneys due him or any part thereof.
Georgs Knox is the only witness relied on to disprove Clason’s answer. He testifies not to any fact he has seen or witnessed, but to Clason’s declarations; and it is certain that, in the case of Only v. Walker, (3 Atk, 407.) the master of the rolls considered the declarations of the defendant as a circumstance corroborating a fact sworn to by a. witness, and not as direct proof against the answer. Mr. Knox was. called on to testify after the lapse of many years; and it is impossible to say (if we yield our assent t© all he has testified, what Clason meant, when he said he had let out Sands, and had got four thousand dollars for his debt) to what debt he referred, or whether the 4,000 dollars was in money or the Washington lands. Knox is certainly incorrect that Clason told him he had obtained judgment for his debt amounting to 15,000 or 16,000 dollars. No such judgment appears, to. have, fxisted at any time.
I am, therefore, of opinion, that there is no ground for relief to the respondents, as respects the judgments; and the respondents having so. framed their bill as not to require the appellant to make his election whether to keep the Washington lots or not, but have prayed only that an entry of satisfaction of the judgments may be decreed, they have failed altogether, and the bill ought to have been dismissed, with costs.
Lewis, Wilkins, Bishop, Carl, Haight, Rouse, Stearns, Tabor, Tayler, and Townsend, Senators? concurred in this, opinion.
The respondents’ bill in the court of chan-. tiery had for its object, generally, a discovery of what was due from Comfort Sands, the bankrupt, to the appellant, Clason, and what payments he had received, and what property he had in his hands, belonging to Sands; and it prays relief against certain judgments which Clason was about enforcing against the estate of Sands.
The material and principal inquiry will be, whether the answer, ©f Clason has been disproved, so as to warrant the decree which has been made against him. It is an undeniable rule in chancery that the answer to a bill for discovery, being under oath, must be taken as true, unless disproved by two witnesses, or by one witness and circumstances warranting a presumption against the truth of the answer. (2 Atk. 19.) The respondents having thought fit to make the appellant a witness, they are bound by what he discloses, unless it is satisfactorily disproved. Where the answer and the testimony are at variance, it becomes a question of credibility. The answer is not to be discredited, or any presumption indulged against it, on account of its being the testimony of a party interested. He is. made a witness by his adversary, and it would be unjust to compel him to testify, and then consider his testimony unworthy of credit,, .because he is a party in the suit. This is not the light in which.
It will be necessary, in order to test the case before us by this K'ule, to look particularly at the discovery sought by the bill, and the answer given to it; for I apprehend, that with respect to many, and, indeed, most of the facts which have been considered material m this case, the answer stands uncontradicted, and, of course, must be taken as true.
The bill prays a discovery, first, as to what was due from Ct, ■Sands to the appellant, on what account, and how secured; and, secondly, what effects or property of Sands had come to his hands in satisfaction of his demánds, and under what agreement or un - derstanding it was so conveyed, assigned, delivered or paid» In answer to the first inquiry, the appellant states his demand to consist of a judgment in favour of Nicholas Low against Sands for 5,812 dollars and 61 cents, and which had been duly assigned to him; a judgment in favour of Clason and Stanly against Sands for 5,874 dollars and 6 cents; and, also, a promissory note for 3,200 dollars, which Clason and Stanly had paid as endorsers for Sands» To the inquiry on what account the demands accrued, the answer states that they accrued by reason of his having become security for Saiids. These facts are uncontradicted, and we are not at liberty to reject them. What the legal effect and operation of the payment and satisfaction of the judgment which Low had recovered against Clason and Stanly, as endorsers for Sands, would be upon the judgment which he had against Sands, as the maker of the note, and which was assigned to Clason, will be noticed hereafter. With respect to the note for 3,200 dollars, the prima, facie presumption would be, that it was included in the judgment of Clason and Stanly against Sands, as they had declared upon it. But this presumption may be rebutted by proof showing that It was not included. (6 Term Rep. 607.) And the answer furnishes this proof. It is a direct and proper reply to the inquiry made of the appellant, as to what was due from Sands ; and is explicit that it was not included in the judgment. As to the amount of the appellant’s demand, and on what account it accrued, there is no variance between the answer and the proof, and it must be considered as established, that it consists of the two judgments, and the note which I have mentioned.
To this inquiry the answer states explicitly that the appellant has not received, nor has any other person received for him, or to his.use, from Comfort Sands, nor from any other person, on his behalf, any of Sands’s goods, moneys, debts, or any other thing, in payment and discharge of the said judgments, and the said 3,200 dollars, or of any part thereof, the whole of which amount, with the interest, is still justly due. This is as full and ample a negation of all payments as could possibly be made, and this general denial ought to be kept in view in the examination of the particular details of the answer; for the whole answer is to be taken together, and if any particular part is susceptible of a double meaning, or has the appearance of evasion, it ought to be so construed as to comport with the general denial. The detail is more the language of the draftsman, which the party may not be able to criticise, but the general denial is intelligible, and cannot but be understood by him; and, in this case, it is so broad and unqualified, that it must be taken for an absolute denial of the acceptance of the deed for the Washington lots, or the receipt of the 4,000 dollars as stated by him.
The answer of the appellant, as to the nature and terms of Ihe agreement between him and Sands, relative to the payment and satisfaction of his demands, is made evidence by the prayer in the bill for a discovery as to that agreement. And the answer states the agreement to have been, that the appellant was to be paid one half of his demand out of a debt due to Sands from the French government, and the other half in lots in the city of Washington, at the price originally paid for them by Sands. There is no evidence whatever tending to show that such were not the terms of the agreement. What is said in the answer as to the manner and circumstances under which the deed for the Washington lots was delivered, is drawn out by the inquiries in the bill. It states that the conveyance for these lots was left in the appellant’s possession, as he supposes, in part performance of the agreement before mentioned, but that he did not, at that time, to the best of his remembrance and belief, even examine it, nor did he accept, or agree to accept, the same in any manner, or for any purpose, other than the agreement aforesaid. This answer has been treated as equivocal and evasive, because it says he did not, at that time, accept, or agree to accept, the deed, leaving it open to the infer
With respect to the 4,000 dollars charged in the bill to have been received by the appellant, in addition to the said lots, in full satisfaction of all claims and demands, the answer fully and positively denies the receipt of that sum, or any other sum, at imy time, in satisfaction or discharge of the appellant’s demands,
The only remaining inquiry is, how far the respondents are entitled to the relief prayed for, as to an entry of satisfaction of these judgments. The judgment assigned by Low to the appellants must, I think, be considered unsatisfied, and as a legal lien on the property. Had the judgment against the endorsers been paid and discharged, without at the same time taking an assignment of the judgment against the principal, it might have operated as,a satisfaction of that judgment. But the appellant stands before the
With respect to the deed for the Washington lots, I should rather incline to leave it untouched by the present determination. It is not made necessary, by the state of the case, to decide upon it. The bill in the court of chancery does not seek for any relief against this deed. It has been drawn in question only by the allegation of its having been accepted in satisfaction of the appellant’s demand, but which the respondents have failed, to establish. The'
I am, accordingly, of opinion, that the appellant is entitled only to a moiety of the two judgments, and that satisfaction thereof ought to be entered, on his receiving that amount.
Kent, Ch. J. and Van Ness, J. were of the same opinion.
Platt, Hall, Hopkins, Phelps, and Livingston, Senators, also concurred.
A majority of the court
March 24, 1812.
1 Lev. 63. 1 Sid. 76. 1 Keb. 284. 2 Tidd, 805.
For reversing in toto. 11. For reversing in part 8.