Lyon v. Richmond, 2 Johns. Ch. 51

Lyon v. Richmond

2 Johns. Ch. 51 | New York Court of Chancery | 1816

The following opinion was this day delivered by the Court:

The Chancellor.

[ * 57 ]

A suit between these same parties, on the same subject, was brought to a hearing in August term, 1814, on demurrer to the bill, and the bill was dismissed.† There was, then, no charge of fraud in procuring or making the assignment and release stated in the case, and it appeared that the sureties of Brockway had no equity in their complaint against Richmond, the sheriff. The charge against him was, that he had thought proper, for his own safety, to settle and discharge a judgment against him for an escape, after the sureties had neglected or refused, upon due notice, either to deposit money or to *give him other requisite security, and after they had assented to that arrangement.

The bill now contains the allegation that the assignment of one judgment, and the release of errors in the other, were procured by a fraudulent agreement between Richmond and Tallmadge, Smith & Co., to the oppression and injury of the sureties of Brockway, in depriving them of the benefit of a writ of error on the judgment against Richmond. The object of the bill, as explained by the counsel, is to obtain the liberty and the ability to prosecute such a writ of error, and an injunction to restrain the use of the release. But as the charge of fraud is directly denied in the answer, and is not supported, but absolutely repelled by the proof, the cause would seem to rest now on the same ground precisely that it did before.

*57[ * 58 ]

*56The answer of Richmond explicitly denies that the judgment in his favor was confessed by Lyon and Dewey upon any condition or agreement by him, to give them the future control of the judgment against him; and as there is but one witness who testifies to any such agreement, it cannot be considered as established. The answer of Richmond equally denies the existence of any fraud, by concealment, misrepresentation, or otherwise, in procuring the assignment and release. The proposition was fairly made to him, and *57he told the sureties of B. of the proposal, and that he would not assign the judgment he had against them, but would • permit them to prosecute the writ of error in his name, on the judgment of the creditors against him, if they would deposit money, or give him other sufficient security by way of indemnity. They would not, and did not do either, and the proposition was finally carried into effect with their knowledge and approbation. That Richmond gave this information to Lyon and Dewey, and told them that he should assign his judgment against them, and should release *the errors in the judgment against him, unless they gave him that security, and that they did not comply, and that Lyon afterwards admitted that Richmond was free of blame in executing the assignment and release, are facts proved even by the complainants’ witnesses. That the assignment and release were both executed with the full knowledge and approbation of the sureties, Lyon and Dewey, and with perfect fairness and candor, is proved by the two witnesses, Dewey and Mumford, with a precision and circumstantial detail, that demand our belief. There is nothing to shake the credit of their testimony. Dewey is a competent witness for his co-defendant Richmond. There is nothing prayed for or proved against him, to show him in default, or to charge him, in any event of the suit, with costs to the complainants. The answer of Richmond, supported by the testimony of these two witnesses, is perfectly decisive in favor of the fairness of the whole transaction, and the free and full knowledge and assent of Lyon. There is no evidence in contradiction to the plain narration of these witnesses. The previous reluctance of Lyon or Dewey to the assignment and release, as stated by the complainants’ witnesses, is not inconsistent with their subsequent assent at the consummation of the transaction. The conduct of I/yon, in aiding and assisting the service of the execution issued after the assignment and release, is strong corroborating proof against his charge in the bill. Both Richardson and Dewey prove, that the previous proposal communicated to Lyon, related as well to the release of errors in one judgment, as of the assignment of the other. In short, I see no possible room to doubt of its being a fair transaction on the part of Richmond, founded on due previous notice and warning to the sureties of Brock-way, and on their subsequent free and full acquiescence.

[ * 59 ]

Fraud out of the case, I see no ground for the present bill; the assignment and release were fairly procured by *Tallmadge, Smith Co., and they are entitled, in law and equity, to hold them. If they, by their agent, were free from any improper conduct in procuring those deeds, there is no reason why this Court should interfere to deprive them *59of the benefit of either, even if Richmond had not dealt kindly with Lyon. But I do not see that Richmond stands otherwise than perfectly acquitted. He made a fair proposition to those who had undertaken to indemnify him. He was entitled to be acquitted and discharged from his responsibility. A judgment had been recovered against him at law, after a defence made to the best of his power. He was not bound to expose himself to further risk. He had reason to apprehend danger to his remedy over. Dewey says he knows, that about the time of bringing the suit against Richmond, Lyon had conveyed his farm to one Fisk; and another witness ( Whitney) heard Lyon say, before the assignment, that Richmond might take out execution as soon as he pleased, for that his property was secure. Richmond had, therefore, good right to demand of Lyon and Dewey perfect security, either in a deposit of money, or of other personal security, adequate to his indemnity, before he consented to continue longer exposed to the operation of the judgment against him. It was their duty to have made him secure, if they wished the use of his name to try the chance of a writ of error. They refused to give the security, either from inability or unwillingness, and when they gave their subsequent assent to the assignment and release, and the issuing of the execution, it was what they were competent to give, and to which they ought to be bound.

[ * 60 j

Much was said respecting a decision of the Court of Errors in another cause, in the year 1813, by which it is inferred, that if the sureties had been permitted to have prosecuted a writ of error on the judgment against Richmond, they would have been successful. Whether this would have been the case, and the judgment against Richmond, *and the judgment reversed on error in 1813, have been deemed so analogous in their circumstances as to have led to the same conclusion, is a question not before me, and which I shall not undertake to decide. I have nothing to do with such an inquiry. A. subsequent decision of a higher Court, in a different case, giving a different exposition of a point of law from the one declared and known when a settlement between parties takes place, cannot have a retrospective effect,and overturn such settlement. The Courts do not undertake to relieve parties from their acts and deeds fairly done on a full knowledge of facts, though under a mistake of the law. Every man is to be charged at his peril with a knowledge of the law. There is no other principle which is safe and practicable in the common intercourse of mankind. And to permit a subsequent judicial decision in any one given case, on a point of law, tó open or annul every thing that has been done in other cases of the like kind, for years before, under *60a different understanding of the law, would lead to the most mischievous consequences. Fortunately for the peace and happiness of society, there is no such pernicious precedent to be found. This case, therefore, is to be decided according to the existing state of things when the settlement in question took place.

[ * 61 ]

There is a fact connected with this case, which is of great weight against Lyon, the complainant. I allude to the decree read at the hearing, and pronounced in June last, in the suit of Tallmadge and others against Lyon and others, in which a sale of the property of Lyon and Dewey, under the execution of the judgment so assigned, was charged with being affected with fraud, and that Lyon was a party to the fraud. The decree was taken by default against Lyon and others, and the sale set aside as fraudulent, and the complainants allowed to cause the property to be resold under that judgment. That decree has never been questioned, and remains good ; and can it be impeached in *this collateral way ? Can it now be said, in the face of that decree, that Tallmadge and others had no right or title to such a judgment and execution ? Nothing could be productive of more confusion, or more effectually destroy the credit and verity attached to judicial records.

There is another difficulty which must embarrass the claim of the present plaintiffs. The answer of all the defendants under the firm of Tallmadge, Smith &/■ Co., except one, refers to, and adopts as their answer, the answer of Richmond, and others, and no replication has ever been filed to their answer, by which it is, as to them, admitted to be true; and if they are entitled to hold and enjoy in full right the assignment and release, it cannot be affected at all.

But these are minor considerations, and only serve to multiply the insuperable difficulties under which the pretension of Lyon labors. I place my opinion chiefly on broader ground; on the absolute failure of the plaintiffs on the merits.

The bill must, accordingly, be dismissed as to all the defendants, with costs; and every injunction heretofore issued, at the instance of the complainants or others restraining the defendants, or any of them, from proceeding under the judgment assigned as aforesaid, is hereby declared to be dissolved.

Decree accordingly, (a)

1 Johnson's Ch. Rep. 184.

On appeal, this decree was reversed, (April 4th, 1817,) by a majority (one only) of the Court of Errors ; four of the judges of the Supreme Court were for affirming the decree.