Reigal v. Wood

1 Johns. Ch. 402 | New York Court of Chancery | 1815

The Chancellor.

It appears to me, from a view of all the facts and circumstances attending this case, that I am bound to consider the judgment upon the scire facias as unduly obtained, and that the defendant cannot, in justice and good conscience, be permitted to hold any advantage which he may have obtained under it. It is a well-settled principle, in this court, that relief is to be obtained not only against writings, deeds, and the most solemn assurances, but against judgments and decrees, if obtained by fraud and imposition. (Barnesly v. Powel, 1 Ves. 120. 284. 289.)

Wood, the principal defendant, admits, in his answer, that when he undertook to revive the judgment of Avery & Bennet v. Smith & Wood, there was but 3 dollars 96 cents of the debt due. His object, certainly, was not that small balance ; and it does not even appear that, as to that sum, he had any direction to issue the scire facias, from the persons in whose names it was issued, or to whom the money was due. It is evident his object was to secure another and larger demand against Smith, totally unconnected with the judgment, and that, as Smith was insolvent, as well as old, blind, and helpless, he sought to secure this demand by a contrivance calculated to defeat the title of the unsuspecting purchasers holding lands under Smith. It is in proof, that he knew that Smith had conveyed his interest in lot 54., in Manlius, to third persons; and the inference is irresistible, from his frequent intercourse with that town, that he knew that the land was in the actual occupation of the purchasers, and had received large and valuable improvements. No notice, however, is given to them, as ter-tenants, of the scire facias. We have reason to presume it was intentionally avoided, and he is content with a service of the writ on that very old and blind pauper, who had neither interest nor disposition to take care of the suit, and who, about that time, had gone, or removed, to a distant county. A verdict is, accordingly, obtained upon the scire facias, without any opposition from Smiths uninstructed counsel, for the whole amount of the original judgment, though he knew, at the time, that it had long before been nearly, if not entirely discharged. He issues his execution, and directs the whole of the judgment to be levied; and the sheriff, under his direction, sells, not upon the premises, but in another town, all the lands of the present plaintiffs, and which had cost them, eight years before, near 2,000 dollars. This sale, as well ás the previous proceedings, was unknown to the plaintiffs, and the lands were bid off by a partner of Wood, for his use, at a nominal sum. This partner says, that he bid to save the debt of him and Wood, and which, as it appears, consisted chiefly of an antiquated account of costs and charges, as attorneys for Smith. Having thus acquired a title, Wood imposes terms upon the plaintiffs as the previous owners of the land. He insists upon the payment of the principal part of his demand against Smith, and compels them to redeem their land by'giving him bonds and mortgages to the amount of 308 dollars. Smith denies that any part of that demand is due; _ and whether it be so or not, the settlement cannot be binding upon the plaintiffs ; for the same imposition which attended the judgment, also infected this settlement, as it was made by them, totally uninformed of their rights, and in ignorance of the fraud by which the judgment was procured.

I think the weight of evidence is, that the whole of the original judgment, costs as well as debt, had long before been satisfied. Smith testifies that he had paid not only the small balance of the debt, but the costs, in boards ; and, another witness (Hall) says, that Woodh&d the benefit of some boards upon some claim which Wood had against Smith; and in the account exhibited by Wood, in this cause, he gives no credit, and makes no mention of the boards.

Iam of opinion, therefore, that Wood cannot be permitted to acquire and hold any advantage whatever under the judgment obtained upon the scire facias, and that thewhole proceeding was an imposition upon the plaintiffs. I shall, accordingly, decree, that the bonds and mortgages mentioned in the pleadings be given up and cancelled, and that the money which has been paid upon one of the bonds and mortgages be refunded, with interest; and that the defendant, Wood, pay the costs of this suit; and that the bill, as to the other defendants, be dismissed without costs.

Decree accordingly,