14 Johns. 501 | Court for the Trial of Impeachments and Correction of Errors | 1817
Before I enter on the merits of this cause, I shall briefly examine some preliminary objections. It appears from the chancellor’s opinion, that a decree was read at the hearing, which had been given in the court of chancery in June, 1815, in a cause pending in that court, between Tallmadge and others against Lyon, setting aside a sale of the property ot Lyon and Dewey, under a judgment in favour of Richmond, and assigned to Tallmadge and others, on the ground that it was a fraudulent sale. That decree was taken by default, and the complainants in that suit were ailowed to resell the property, thus fraudulently sold, on that judgment. His honour, the Chancellor, considered this as a decisive objection to any relief to Lyon in this cause, on the ground that that decree having never been questioned, remained good, and could not be impeached in a collateral way.
I cannot assent to this conclusion. The subject matter of the appellant’s bill could never have been set up as a defence in that suit, for it was wholly a disconnected subject. If the sheriif’s sale was fraudulently procured by Lyon, he could not defend himself from that fraud, by insisting on the matters forming the grounds of the present bill. This consideration would be sufficient to show, that the decree in the former cause cannot operate as a bar to this suit. But there is another answer: the decree in the dormer cause, to be available, should have been pleaded, or relied on in the answer, as a bar. ■ It was not enough to read it at the hearing; -and I must doubt the propriety of its being read at all at the hearing.
It is a well-established rule in equity, that a plea in bar of a former decree must state so much of the former bill and answer, as to show that the same point was then in issue. (Hind. 176. 2. Atk. 603. 2. Ves. 577.) And, beyond all controversy, the case stated in the appellant’s bill was not, and could not have been, in issue in the former cause. It was then a mistake to-suppose that the appellants sought to attack or impeach the former decree, in a collateral way, or in any shape; and that de-, cree does not stand in the way.
It has been urged, and, I think, ungraciously, that the
There can exist no doubt, that all the proof in the power of any of the respondents is before the court. The firm of Tallmadge, Smith & Co. appear to have had no personal concern in any of the transactions, and they admit their ignorance of them; but though their attorney, Mr. Mumford, under these circumstances, having referred to Richmond’s, Dewey’s, and William S. Tallmadge’s answers, and stated their expectation of being able to prove the facts set forth by the other respondents,’ we ought to consider the proof given by them, as the proofs of the respondents ; thus adopting and referring to the answers of the other respondents. Thete is yet a more decisive answer. The fact is not made out that there was no replication to these answers. There appears to be a replication, and the court is bound to intend it was filed in season, unless the contrary be proved. Besides, as this is mere matter of form, and all the evi-. dence has been adduced which the parties, or either of them, can bring forward, the court below would have permitted the replication to have been filed, nunc pro tunc, as both parties have proceeded on the idea that the cause was completely at issue. This appears by the commissions to examine witnesses, and the interrogatories.
This brings me to the merits of the cause ; and after as full a consideration as I have been able to give, I am bound to say, that, in my judgment, the decree in the court below ought" to be reversed, on two grounds :
First. On the ground that Richmond, if he, indeed, ever obtained' Lyon’s assent to the assignment of the judgment he held against Lyon, Dewey, and Brockway, and to the release of errors in the judgment in favour of Tallmadge and others, against him, obtained it under circumstances of such fraud and oppression as to render the assent nugatory and void.
Second. Admitting all the facts set up by Richmond to be true, they form no defence to the appellant’s title to the relief he asks.
The’object of the appellant’s bill is to set aside the assignment of the judgment in favour of Richmond against the appellants and Dewey, and the release of errors executed by Rich
The question whether that judgment was erroneous, is not now to be considered; the object of the bill is to get rid of these acts, which operate as a hindrance to the prosecution of the writ of error ; and the question before us is, whether the appellants are not entitled to the interposition of the court of chancery, to enable them to proceed in the writ of error, by removing the obstacles which have been interposed.
It may be useful to ascertain under what circumstances of fraud and imposition a court of equity will give relief; that, having the principle, we may apply to it the facts of the case. Lord Hardwicke, (2 Ves. Rep. 155, 156.) specifies the kinds of fraud which a court of equity will relieve against; and under his third head, he speaks of fraud which may be presumed from the circumstances and conditions of the parties contracting ; and this, he says, goes further than the rule of law, which is, that it must be proved, not presumed ; but he adds, ie it is wisely established in equity to prevent taking surreptitious advantage of the weakness or necessity of another, which knowingly to do, is equally against conscience as to take advantage of his ignorance ; a person is equally unable to judge for himself in one as the other.’’ The same principles are maintained by Lord Erskine. (13 Ves. jun, 51.) He says, a court of equity will prohibit a party from taking advantage of an instrument obtained by an advantage taken of men unguarded in particular situations, and under circumstances, where courts of law cannot give adequate remedy ; though, he says, fraud, according to the ordinary understanding of the term, is equally the subject of their jurisdiction.
These are valuable and salutary principles, “ coming home to the bosoms and affairs of menand it is for us now to consider, whether the facts proved warrant the application of them.
I consider it to be immaterial whether Richmond did, or-'did not, agree, that Dyon and Dewey should have the right to
I shall not, therefore, stop to inquire, how the proof stands in regard to Richmond’s assent to their using his name, to prosecute the writ of error, though I think the evidence pérfectly clear that he did consent. My doctrine is, that he could not refuse.
Again ; although I hold it to be unimportant, whether Lyon actually consented that Richmond should assign his judgment against the appellants, let us examine under what peculiar and extraordinary circumstances this consent was forced from him. When Richmond required further security", under the threat of assigning the judgment, unless it was given, he had a judgment which operated as a lien on the real property of Lyon and Dewey, which is proved, without contradiction, to have been unquestionable security to a larger amount than the judgment of Tallmadge, Smith & Co. Under the apprehension, however, that Richmond had it in his power, by assigning the judgment, to strip them of their right to proceed on the writ of error, Lyon offered the security of a Mr. Fish, for 1800 dollars, who is stated, by all the witnesses, to be worth 10 or 15,000 dollars ; and, in truth, it seems to me impossible to read the proofs, without being convinced, that Lyon did every thing in his power, and more than, in honesty, ought to have been required of him, to satisfy the demands of Richmond for security ; and, at length, believing himself at the mercy of Richmond, and without redress, yielded
The second proposition, admitting that all the facts set up. by Richmond to be true, they form no defence to the appel-. ant’s title to relief, there will be no difficulty in maintaining.
I have already noticed the relative situation of the parties. That Lyon and Dewey were sureties to the sheriff; that their bond was a bond of indemnity, and that they were liable to the sheriff only in case there was an eventual and final recovery against him; and that they being fixed by such recovery, had a natural and equitable right to contest, in the last resort, his liability for the escape. I now hold, that the assignment did not prejudice the appellants’ right to prosecute the writ of error, had their consent been fairly and fully obtained; and that there is no legal proof before the court, or which we can notice, that the release of errors was given with Lyon’s assent. What rights did Tallmadge, Smith & Co. acquire in virtue of the assignment made by Richmond ? Certainly no other
It has been insisted, that Richmond, having released the errors in the judgment against him, with the consent of Lyon, the very object of the bill is defeated, and that it would be nugatory to require Richmond’s assent to using his name in prosecuting the writ of error, when his release would cure all errors. I have said, that there is no legal proof that Lyon did assent to the release of errors by Richmond.
It is an incontrovertible rule in the court of chancery, that no ■ interrogatories can be put to witnesses that do not arise from some fact charged and put in issue. This was the rule unanimously adoped by this court, in the case of James v. M'Kennon; (6 Johns. Rep. 565.;) and it is a rule so necessary and just, to prevent surprise upon either party, as not to stand in need of any argument to enforce. or elucidate it. In the case referred to, the respondent had examined his witnesses to establish a fraud not alleged in the bill: but this court considered the proof inadmissible, irrelevant, and immaterial, and wholly rejected it. The same principle applies to a fact, not set up in an answer, and which is a material and independent, fact, not arising from the bill : to such fact, which might have been set up in the. answer, but -is not, the defendant can adduce no proof; because it forms no part of the issue between the parties, and it would operate as a complete surprise on the complainant, who could not foresee that proof of a fact not insisted on in the answer, would be given*
In whatever light this cause presents itself to my view, I can perceive no solid ground for doubt, but that the appellants are entitled to relief. If Lyon consented to the release of errors, I am of opinion that his consent was obtained by imposition and fraudulent practices ; that an unjust and unconscientious advantage was taken of him, under circumstances which entitled him to be relieved. I hold that the assignment of the judgment took away no right which the appellants had, and that it conferred none but such as Richmond could give ; that his judgment againstLym and his co-obligors, was merely in the nature of an indemnity against the eventual recovery in this court, by Tallmadge, Smith. Co. against him ; but that it did not operate to deprive • the appellants of their just, equitable, and inherent right to contest, in Richmond’s name, the validity df the recovery against him, and that there is no proof before the court, that Lyon ever
It will be necessary, to a right understanding and correct application of the testimony in this case, to ascertain, from the pleadings, the grounds upon which the appellants placed their claim to relief in the court of chancery.
The bill charges, that the appellants, after receiving notice that the cause of Tallmadge, Smith fy Co. against Richmond, for the escape of Brockway, was to be brought to trial, in order to induce Richmond to place the further defence of that suit in their hands, proposed to confess a judgment on the bond given by them, as the sureties of Brockway, to Richmond, the sheriff, and that it was thereupon agreed, that they should confess a judgment on the bond, and that Richmond, in consideration thereof, should give up and relinquish to the appellants the further conduct and defence of the suit against Richmond, for the escape; but that Richmond, and the plaintiffs in the escape suit, in violation of that contract, fraudulently combined to supersede any further proceedings, on the writ df error, by Richmond's assigning to them the judgment, so confessed, upon the surety bond, and releasing all errors upon the judgr ment for the escape of Brockway. The substance of the allegations in the bill, therefore, is a fraudulent violation of a contract, in relation to the prosecution of a writ of error upon the escape suit of Tallmadge, Smith & Co. against Richmond. Without particularly referring to the several answers of the defendants in the court of chancery, I am warranted in saying, that they contain a most direct and unequivocal denial of any such agreement or contract as is stated in the bill, and of the .fraud and collusion charged against them.
.Upon such a state of the pleadings, it is not disputed, that the settled rule of the court of chancery requires moró evidence than the testimony of one witness, to support the allegations in the bill. A recurrence to the testimony will, I think, warrant the conclusion that, so far as relates to the agreement set forth in the bill, it is unsupported, except by the naked and uncorroborated testimony of a single witness. Richardson does state, that the confession of judgment by the sureties .of Brockway was given on an express stipulation by Rich
The next inquiry, therefore, is, whether the proof in the cause, supports the allegation in the bill, that the assignment by Richmond of his judgment against Lyon and others, and the release of errors in the escape-cause, were procured by a fraudulent agreement, between Richmond and the house of Tallmadge, Smith Sc Co., to the oppression and injury of the sureties of Brockway, in depriving them of the benefit of a writ of error. The answer is equally explicit in the denial of the fraud, as it is of the agreement set up in the bill, and we must look to the proofs, to ascertain the truth with respect to this allegation.-
It was admitted on the argument, and indeed could not be questioned, that if Lyon voluntarily assented to the assignment and release of errors, he has no cause of complaint, and is not entitled to any relief.
The only ground of oppression or unfair conduct, on the part of Richmond, that has been urged with any appearance of plausibility, is requiring of the sureties of Brockway additional secu~ rity, as the only terms upon which he would refrain from assigning the judgment and releasing the errors. It cannot be pretended that Richmond was bound to prosecute a writ of error. He had, in good faith, and with the aid and assistance of counsel employed by the sureties of Brockway, defended the suit for-the escape ; and the judgment obtained against him, thus defended, was all that was necessary to entitle him to a remedy over against the sureties. He could not be bound to incur the trouble and expense of prosecuting a writ of error; and it was very reasonable for him to wish to exonerate himself from all: responsibility, which he could do, by closing with the proposition made by Tallmadge, Smith <§■ Co., to assign the judgment he had against the sureties, and release the errors in their judgment against him. This proposition was not accepted hastily, and without notice to Lyon. Richmond repeatedly offered to permit the sureties to take the control and management of the suit, and
Mumford, in his testimony, after stating the various propositions and conversations between himself and Lyon and Dewey, relative to. further security, and the proportion of the debt which each should pay or secure, all which failed of being effected, in consequence of a disagreement between Lyon and Dewey, as to the proportion which each one should assume, Says, that, in the presence, and with the knowledge and approbation of Lyon, it was finally agreed between the witness and Richmond, that he, Richmond, should assign his judgment against Lyon and others, to Tallmadge, Smith cy Co., and release all errors in the judgment for the escape, on Tallmadge, Smith dy Co. discharging him, Richmond, from all responsibility on that judgment ; and that the necessary writings to carry such agreement into effect were, then,, drawn and executed, and the negotiation-completed, and that Lyon was present, and consented and agreed to the same. That he, the witness, drew a written consent to-that effect, and read the same to Lyon, who declared that he.
In deciding on the merits of the present case, we must lay out of view, altogether, the question which would have been brought before this court upon the writ of error; for admitting the judgment to have been erroneous, it was competent for the parties to waive the error; and if this has been done with the knowledge and assent of Lyon, he comes too late now to complain. It would* I think, be going a little too far, to say, that it was certain, at the time when this transaction took place, that the judgment would be reversed. The assignment and release of errors were given in the fall of 1812; at which time, according to-what had been considered in the supreme court, for years, the settled, construction of the act relative to the security for gaol
Platt, J. and Yates, J. were of the same opinion.
Van Ness, J. was absent.
Allen, Cantine, Cochran, Hascall, Livingston, Stewart, Tibbitts, Van Burén, and Van Vechten, senators, also concurred in the opinion of the chief justice.
Bates, Bicknell, Bloom, Crosby, Elmendorf, Hart, Knox, Mallory, Noyes, Prendergast, Ross, and Swart, senators, concurred in the opinion of Mr. Justice Spencer, that the decree of the court of chancery ought to be reversed.
This being the opinion of a majority of the court,
Decree of reversal.
= For re ve