Platt v. Judson

| Ind. | May 30, 1833

Blackford, J.

mi • This was a case m chancery, in which Judson was the complainant, and A. Platt; M. Platt, Lane, and Jennison,.were defendants. The principal facts in the case, according to the bill, answers, and exhibits, are believed to be as follows: ' •

In November, 1829, Judson commenced a suit in the Dearborn Circuit Court, on a note for 339 dollars and 92 cents, against A. Platt, who, at that time, owned a tract of land in Dearborn county. In February, 1830, Lane, an attorney, at the request of A. Platt, commenced a suit in the name of Jennison, as plaintiff, in the Dearborn Circuit Court, against A. Platt, on a note alleged by A. Platt to have been given by himself to Jennison, On the 1st day of the April term, 1830, to which term the writs in both suits were returnable, A. Platt confessed a judgment in the suit he had caused to be- brought against himself in favour of Jennison; and, by means of an affidavit, procured a continuance of the cause'brought against him by Judson. A. Platt represented to Lane, the attorney, that Jennison had sent the note to him, A. Platt, from the state of- Vermont, enclosed in a letter which stated that the note should be for the benefit of M. Platt, the son of A. Platt.

On the judgment confessed in favour of Jennison, A. Platt caused an execution to issue, and his land to be thereupon sold by the sheriff. His son, M. Platt, was the purchaser. The sheriff executed a deed for the land to M. Platt; but there was no part of the purchase-money paid by M. Platt or by any other person, either to the sheriff or to any one else; nor did the sheriff pay any part of the purchase-money to Lane, the attorney, or to any other person. Afterwards, at the October term, 1830, A. Platt confessed a judgment in the suit brought against him by Judson. On this judgment an execution issued, and the same land that had been sold on the previous judgment, was again sold under Judson's execution and purchased by him. A. Platt, who occupied the land previously to any of these transactions, still continues in possession. The note, alleged by A. Platt to have been given by him to Jennison, was not produced, nor was the letter produced in which A. Platt savs the note was enclosed to him by Jennison; nor was the absence either of the note or of the letter in any way accounted for. There is no evidence whatever, that Jennison wrote the letter in which A. Platt says the note was sent to him; nor do we know what were the contents of that letter, except so far as A. Platt has thought proper to divulge them.

The bill charges that the commencing of the suit against A. Platt in favour of Jennison, the confession of the judgment by A. Platt in the suit, and the purchase of the land by his son, M. Platt, were fraudulent and void as to Judson; and were intended by the defendants, fraudulently, to secure the land of A. Platt to his own use, against the just'debt of Judson.

The 'subpcena in this cause, being returned “not found” as to Jennison, and publication of the pendency of the suit having been made, the bill as to Jennison, who did not appear, was' taken pro confesso. The other defendants answered and denied all fraud. The Circuit Court decreed that the judgment in favour of Jennison, the execution, sheriff’s sale and deed to M. Platt, and all the other proceedings under that judgment, should be set aside as fraudulent and void as to Judson; and that the land should be subject to an execution to be issued on Judson's judgment. It was further decreed, that the complainant should recover costs against Jennison, and should pay costs to the other defendants.

There are only two of the defendants in this cause, whom the Court can recognize as being interested in supporting the judgment in favour of Jennison. One of them is Jennison, because he, if any one, was entitled to the debt; and M. Platt is the other, he having purchased the land under the judgment. A. Platt cannot be interested in the support of the judgment against himself, if it be not fraudulent; and there is nothing to show that Lane, the attorney,' had any interest in it.

The case is a very short one. There are no depositions. Jennison has permitted the bill to be taken as confessed; and M. Platt, in his answer, says nothing that can sustain his purchase. M. Platt, indeed, seems to have been merely the instrument used by his father, to effect the fraudulent design of securing the latter’s land against the debt due from him to Judson. M. Platt admits that he never paid any part of the purchase-money for the land; and that his father still continues in possession. "We are satisfied, that M. Platt 'was not a bona Jide purchaser for a valuable consideration. "Whether, if he had been such a purchaser, he could hold the land if the judgment be fraudulent and void, we shall not now stop to inquire.

It-is contended, that the judgment itself was recovered for the benefit of M. Platt. It is only necessary in reply to this, to observe that M. Platt do.es not pretend, in his answer, to any property in the judgment. He says, that he never knew nor heard any thing of the note to Jennison, until after the commencement of the suit on it against his father; that he has no personal knowledge of Jennison; nor does he of his own knowledge know how or-when the note came into the hands of Lane, the attorney .who. brought the suit. He says further, that he is wholly without information, whether Jennison intended the claim as a gift to him or not; and that he expects to pay the claim if ever called upon by Jennison or his heirs. It. is in vain to contend, in the face of this statement by M. Platt himself, that he has any property in the judgment.

The other defendant, Jennison, wh,o is interested in sustaining the judgment, has suffered the bill to be taken joro confesso; and a final decree has been, without proof, rendered against him. There are two objections, made to the decree against Jennison.

The first is, that it was entered on the first day of the term, when the defendant had the right to answer at any time during the term. The order made at the March term, 1831, is, that the notice be published for four weeks successively, requiring the defendant to appear at the then next term of the Court. The entry made on the first day of the next term after the order, is, that the complainant having proved to the satisfaction of the Court, that. due notice, &c. had been given agreeably to the order of the Court, therefore, &c. We see no ground for any objection to this proceeding. The publication having been duly made according to the order of the Court, must be presumed to have been made at the proper time before the first day of the Court; and, if so, the decree was correctly entered on that day.

A. Lane, for the plaintiffs. G. H. Dunn and O. H. Smith, for the defendant.

The second objection is, that the final decree was rendered without proof. This question was discussed in this Court in the case of Pegg v. Davis, November term, 1829. The decision was, that when the charges in the bill are sufficiently explicit, the complainant, after a decree pro confesso, may have a final decree .without the production of proof. In a very late English case, the Court says, that “the effect of taking a bill joro confesso is, that all the facts stated in the bill are taken to be true, as against the defendant.” Landon v. Ready, 1 Simons & Stuart, 44. This we consider to be the law; and we conceive, therefore, that it was not incumbent on the complainant in this suit, to introduce proof against Jennison after the decree pro confesso. The facts contained in the bill are amply sufficient, and are stated with the necessary precision, to warrant the decree made by the Circuit Court; and those facts must be considered, under the circumstances of the case and the provisions of the statute, as confessed by Jennison to be true.

It appears to us, therefore, that neither Jennison nor M. Platt, the only defendants whom the law can recognize as interested in sustaining the judgment of Jennison, has any ground of complaint against the decree, which sets aside that judgment and the proceedings under it, as fraudulent and void as to Judson.

The decree gives costs to all the defendants except Jennison. They could certainly ask no more.

Judson, the complainant, complains of that part of the decree which virtually sets aside the sale under his judgment. He, however, being the defendant in error, cannot ask for a reversal of any part of the decree not complained of by the'plaintiffs in error.

Per Curiam.

The decree is affirmed with costs.