| Me. | Jul 1, 1868
It appears hy the verdict and special findings in this case, taken in connection with the'instructions upon which they were based, that the plaintiff was not the owner of the note upon which the judgment here sued was rendered ; that he had no interest therein, but that he consented that the original suit might be brought upon it in his name for the benefit of some of the defendants, makers of the note, by whom it had been paid; and, that the judgment in suit here has since its rendition been fully adjusted, paid and satisfied by arrangement between those who were the equitable owners of it and those who were the debtors.
In other words, some of the makers of a note, having paid it, brought suit upon it in the plaintiff’s name, with his consent, against all the makers, for the purpose of effecting an adjustment among themselves, and, since the rendition of the judgment, that object has been accomplished. Those who were the equitable owners of the judgment (if anybody could be) acknowledge and testify that it has been satisfied and paid; yet the nominal plaintiff insists that they are precluded upon sound legal principles from showing these facts in defence, and that he.is entitled to recover against all of them for his own benefit.
It is not perceived that the assignment to William H. Baxter, which was made without consideration, can give to his notifications to the attorney of record in the original suit, and some of the defendants, any other or different effect than like notifications from this plaintiff would have.
The main positions relied upon by the plaintiff are, in brief, that the record of the judgment which he produces is, in and of itself, conclusive evidence that each and all of the defendants owed the whole amount thereof at the time of its rendition; that this cannot be now contradicted and the judgment impeached, by proof that some of them had previously thereto paid the note upon which it was rendered, as co-promisors thereon, and were in fact the equitable owners of the judgment, and though nominally debtors, were really the creditors in interest therein,—that such facts and proof would have defeated the original action, and that nothing can or ought to be permitted to defeat an action on a judgment which would have constituted a defence to the original suit in which that judgment was rendered.
These positions are elaborated, enlarged upon and fortified by the abundant research which is eminently characteristic of the plaintiff’s counsel. It cannot be doubted that he has succeeded in demonstrating that, even though his client’s cause is found utterly wanting in equitable merits and its successful maintenance would operate something very near akin to absolute fraud, the position of the defendants is, in view of the decided cases, a somewhat critical and equivocal one ; made so by the ill-advised attempt of some of them to accomplish by an indirection what ought to have been sought by straight forward suits in their own names as plaintiffs.
We have no desire nor design to abate one iota from the validity and conclusiveness of judgments. We concur fully in the doctrine of the numerous cases cited for plaintiff, where it is held that, a domestic judgment of a court of record of general jurisdiction, proceeding according to the
Is it consistent with this doctrine to permit a judgment debtor, upon his own motion', to prove t*hat, instead of owing the amount of the judgment at the time of its rendition, he was, in fact, the equitable owner of it, and that he caused the judgment to be entered up against himself, with others, in the name of the judgment creditor, but for his own benefit and behoof?
Such a state of things is apparently in conflict with the idea that the record is conclusive evidence that each and all of the defendants owed the whole, amount of the judgment at the time it was i’endered, and that the record is to be considered as importing absolute verity.
Nor do we feel disposed to break down the well settled general rule, that, in an action of debt on a judgment, no defence shall be allowed to prevail which existed prior to the judgment and might have been made in the original suit. The rule, is well grounded upon sound and sufficient reasons, and well supported by authority. Mitchell v. Osgood 4 Maine, 133; Noble vi Merrill, 48 Maine, 140.
• But the defence in this case is not that the note in the original suit had been paid by some of those who were ultimately liable upon it and was therefore functus officio, and could not properly form the basis of a judgment. Were that the ground of this defence the case would fall within the rule last referred to. But the defence relied on here, is payment made since the rendition of the judgment in suit to the satisfaction of the equitable owners of it.
In view of the decisions which authorize the maintenance of a suit upon a negotiable promissory note, after it has been indorsed in the name of one who has. no interest in it but consents that suit may be brought in his name for the benefit of the real party in interest whose rights in all these cases, (as well as those of the debtor,) have been sedu
It remains to be determined whether the same defence shall be counted available where some of the judgment debtors are the cesluis que trust, for whose benefit the original suit was instituted.
It may bo conceded that, if this suit were against Libbey and Parker only, (the parties who caused this judgment to bo entered up against themselves and their co-promisors,) as surviving debtors, it would not be in their mouths to assert that they occupied the anomalous position of being both debtors and creditors in the same judgment. But, after careful consideration, wo are not satisfied that there is any positive rule of law or evidence which requires us to deprive the other defendants of a defence which would have been valid beyond question, and subject to no imputation that it was an impeachment of a judgment, if their payments had. been made to any equitable owner of the judgment who was not jointly liable with themselves thereon. It is not reasonable to suppose that they were cognizant of the misuse of legal process by Libbey and Parker; they probably knew of no possible defence which they could make to the original suit. Since the rendition of the judgment they have paid what they were required to pay by those who had the control of the execution.
The suit on the judgment is defeated, not because it is
If the incidental proof that some of the judgment debtors were the real creditors is to be deemed an impeachment of the judgment, the case must be set down as an exception to the general rule forbidding such impeachment.
A debt of record constitutes a contact of the highest nature, being established by the sentence of a court of judicature. 2 Blac. Com., b. 2, c. 30, p. 465. It follows that the plaintiff, in actions of this description, must recover against all or none of the defendants who are jointly sued. Hence, in this case, the defence which it is competent for some of the defendants to make, must enure to the benefit of Parker and Libbey. The instructions of the presiding Judge, as well as his refusals to instruct, were in accordance with the views herein before expressed.
Exceptions overruled.—Judgment on the verdict.