Troup v. Wood

4 Johns. Ch. 228 | New York Court of Chancery | 1820

The Chancellor.

The prayer of the bill is, that thp plaintiff be quieted in his title to two military lots, which the defendants caused to be sold under a dormant judgment, against Henry Plainer. The charge is, that the judgment was satisfied long before the §ale, and that it was kept on foot by fraud, and made subservient to a scheme of fraudulent speculation on the part of the defendants.

The judgment was entered up in 1787. The sale of the two lots claimed by the plaintiff, was in 1807, and was the last and closing act of a series of transactions, in which real property," lying in five different counties, estimated at upwards of 134,000 dollars, at the time of the sales, and upwards of 409,000 dollars at the time of taking the testimony, was sold for less than 800 dollars, to satisfy a judgment originally for a debt of less than 1,000 dollars, and which had been avowedly reduced considerably below the original sum when the first execution issued.

It is contended, on the part of the plaintiff, that there aré several periods in the history of the case, at each of which the acts that occurred amounted to a satisfaction and discharge of the judgment, and that every subsequent step which was taken, was an act of premeditated fraud.

1. It is said, that the judgment was satisfied by a settlement between Bachman and Plainer, the original parties, in August, 1798.

Henry Plainer was examined, being made a competent witness by a release from the plaintiff. He says, that there . 1 v had been various dealings between him and Bachman, who „ was a merchant* and a neighbour of his* between the date of the judgment and 1797, when they came to a partial settlement. ' That in August, 1798, they came to a final settlement, and there was a considerable balance due Plainer. That Bachman then gave him a receipt in full, as well of the judgment as of all other accounts and demands. That as Bachman was then bail for Plainer, and wished some indemnity, it was agreed that the balance, being above 400 dollars, found due to Plainer, should remain unsatisfied. Charles, Vincent, son-in-law of Plainer, another witness, who was present at the partial settlement in 1797, and kept several receipts in his possession belonging to Plainer, testifies, that in August, 1798, Plainer gave him the receipt in full above mentioned, and a few days thereafter he saw Bach-man and Plainer together, and the receipt in full of the judgment, was admitted by Bachman. That at that timé Bachman .suggested, that he still might want the judgment to cover him as a security for being bail for Platner.

These two witnesses thus prove, that the judgment was satisfied, by the act and acknowledgment of the parties, in August, 1798. They concur as to the circumstances .attending the partial settlement the year before, and from them it would appear, that though the balance on the judg-. Blent was 252 pounds, yet that Bachman assumed or acknowledged several debts which would, when adjusted, leave a considerable balance in favour of Platner, and the adjustment of these debts in 1798, left the balance, already mentioned, in favour of Platner.

If this receipt in full had been produced, it would have silenced this controversy, in the first instance, but the non-production of it is accounted for in the following manner :

Platner admits that he gave his receipts, which were produced at the partial settlement, to Vincent to keep, but he thinks the receipt in full was retained in his own possession, and he does not account for the loss of it. But Vincent says, Platner gave it to him to keep; and this is the more probable account, as Vincent had been the depositary of the former receipts. He says, that Bachman repeatedly urged \ him to surrender up that and the other receipts to him, as he wanted to use the judgment as his indemnity for becoming bail for Platner. It is to be observed, that Platner was about this period overwhelmed with misery and ruin, being early in June, 1799, convicted of forgery, and sentenced to imprisonment in the state prison for life, where he continued, until pardoned in 1806. This will very easily account for the dispersion of his papers; and this calamity afforded facility and temptation to the plunder, of his estate. Vincent says, that Bachman became so importunate, that in June, 1799, (being the very time of the conviction of Platner,} he delivered the receipts to John Shafer, and requested him to take and preserve copies, which he did ; and in September, 1799, he surrendered up all the originals to Bachman? who died a few weeks afterwards.

Platner and Vincent were both of them, at the period of 1799, men of bad credit. The former has, however, considerably regained the forfeited esteem of his acquaintance; and the intrinsic probability and apparent candour of their story, is corroborated by facts derived from other and unquestionable sources.

Shafer confirms the fact of having the original receipts delivered to him by Vincent, and one of them purported to be a receipt in full from Bachman to Platner, as well of the judgment as of all demands. He says, Vincent wished him to keep the originals, but owing to the conviction of Platner,. he was afraid of difficulty, and refused, and only consented to keep copies, which he -took, and then returned the originals to Vincent. He says, he had seen the handwriting of Bachman, and he believed the receipts to be genuine. The copies he took were called out of his hands by Vincent in' September, 1799, about three months after they had been taken; and Vincent says, this' was done at the solicitation of Bachman, who required the possession of them. The character of Shafer is not impeached. Abraham Vincent, a brother of Charles Vincent, and who lived with him in the spring of 1799, says, he saw in his possession a receipt, purporting to be given by Bachman to Platner, in full of the judgment, and of all demands. That he was well acquainted with the handwriting of Bachman, and knew the signature to be his. He read it, and recollected the contents of it distinctly.

When the copies of the receipts were returned to Vincent, Shafer took a receipt in these words : “ Received of Major John Shafer, a copy of sundry receipts of Abraham Bach-man to Henry Platner, Sept. 10, 1799.” This receipt is proved as an exhibit in the cause, and it gives peculiar force to the other testimony.

Other proof, in corroboration of the satisfaction of the judgment, is derived from the testimony of Ch. J. Spencer'. He states that he recovered a judgment against Henry Platner, in April, 1797, and believing this old judgment of Bachman was satisfied, or kept on foot by fraud, to protect Platner from creditors, (for Bachman and Platner were connected by marriage, and intimate) he applied to Bachman, and demanded as a matter of right, that he should release his lien under that judgment, to the lands of Platner,. to the value of 5,000 dollars, in Clávemele, where Platner and Bach-man resided. That Bachman gave the release without hesitation, and without consideration. The release is an exhibit, and is dated in October, 1797. He believed that Bachman, by that release, devested himself of all expectation of obtaining any satisfaction under the judgment; and that act of Bachman confirmed him in the belief that the judgment was satisfied, or fraudulent.

This fact is in corroboration of the testimony of Platner and Vincent, that the partial settlement in 1797, showed that Platner could not eventually be the debtor.

It is proved by Henry Avery, that he found among the papers of Bachman, after his death, several receipts given by him to Platner, and which are exhibits in the cause. How came Bachman by these receipts, unless, upon a final settlement, the parties considered their dealings and demands as closed, or unless Bachman repossessed himself of all the vouchers he had given, in the manner stated by Vincent ? Platner was, at that time, deemed dead in law, and forever separated from all the business or pecuniary concerns of this life.

Jacob F. Miller was present at the partial settlement in 1797, and he is said to have witnessed the receipt in full in 1798. He was one of the executors of Bachman, who revived the judgment, and gave it credit, as being valid and subsisting. He died in 1804, and we are deprived of any "explanation which he might have given to the mystery of this transaction. Vincent admits, that after the death of Bachman, he was induced, by an offer of some of the property of Platner, to agree with Miller not to disclose his knowledge of the satisfaction of the judgment; and he says, . that Miller showed him a bundle of papers of his testator, Bachman, and that among them was a full statement of the final settlement between Bachman and Platner, and upon which there appeared to be a considerable balance due to Platner. These papers he saw Miller destroy.

There is another exhibit in the cause, which is an item of some influence on this point. Bachman, on the 17th of August, 1798, gave a receipt to Platner, of a bond from Joseph Denio to Platner, on which was a considerable balance, which he promised, when collected, to pay in goods to two of the daughters of Platner ; and Platner says, that on the final settlement, he deposited such a bond with Bach-man for the benefit of two of his daughters.

Here, then, is the evidence in favour of a satisfaction of the judgment in August, 1798. We have four witnesses' who all testify to the existence of a receipt in full of the judgment given by Bachman, and one of them satisfactorily accounts for its loss. In corroboration of the testimony of these witnesses, we have another fact, which shows, that Bachman • could not, as early as October, 1797, have regarded the judgment as a valid, subsisting debt. We find, also, that he was in possession, and died in possession, of other receipts, which he had before given to Platner, and at the time of the final settlement, in August, 1798, he takes a bond due to Platner, to collect, as agent of Platner, and-to appropriate the proceeds according to his direction. This mass of positive and circumstantial testimony satisfies me, that the judgment was settled and discharged in August, 1798; and if there was any understanding or arrangement between Bachman and Platner, that the judgment should remain as a security or means of indemnity to Bachman, for becoming bail to Platner, such an arrangement was, in judgment of law, null and void. It is a sound-and settled rule, that the penalty of a bond cannot be made to cover any other debt or demand than that specified in the condition. It would, as the Supreme Court observed, in Bergen v. Boerum, (2 Caines, 256.) be “ against the' very form of v _ ,, the contract, and liable to great abuse, it would be a deception on the world, for the condition, which is to discharge r . „ . the judgment, is on record. 11, therefore, it was to reach other demands, it would be impossible to know what would satisfy the debt.” There could not be a more dangerous, and there is certainly not a more inadmissible pretension, than that the parties to a judgment may keep it on foot, after the original debt has been paid, to meet and cover new and distinct engagements between them1. But the parties have never acted upon any such agreement, for the executors of Bachman have only claimed what they assumed to be the balance on the judgment.

If the judgment was satisfied in 1798, it must have been fraudulently revived by Miller, the responsible and acting executor of Bachman; and whatever validity may be attached to bona fide purchases by third persons, under executions issued upon the revival of the judgment, yet the owners of the judgment ought not to be permitted to derive any benefit from such sales, and every assignee of the judgment took it, and made purchases under it, at his peril.

2. If, however, there was a balance due upon the judgment, at the time of the conviction of Plainer, the judgment was not revived in 1800, either with the formalities required by law, or with the notice that justice and equity required.

Plainer was convicted of a felony in June, 1799, and sentenced to imprisonment in the state prison, at hard labour, for life. The act of the 29th of March, 1799, declared, that all such convicts for any felony thereafter to be committed, should be deemed to be civilly dead, to all intents and purposes. The record of Plainer’s conviction is not produced, or cannot be found, and we do not know, therefore, with absolute certainty, whether the forgery of which Plainer was convicted, was committed before or after the 29th of March preceding. The presumption is as fair, that it was committed after as before that period; and every presumption, in a case so extraordinary as this, ought to be turned against the party who has so abused the process of the law. But I apprehend, that the act of March, 1799, was only declaratory of the existing law, and enacted for greater caution. Lord Coke says, (Co. Liyt. 130. a. 133. a.) that every person attainted of felony, or who is banished for life, or having committed felony, abjures the realm, is extra legem positus, and is accounted in law, civiliter mortuus. Christian, in his notes to 1 Bl. Com. 133. says, that if a person be convicted of treason or felony, and saving his life, is banished forever, this is a civil death ; and so it is, also, if he receives sentence of death, and afterwards leaves the kingdom for life, upon a conditional pardon. When the new criminal code was enacted in March, 1796, changing the punishment of forgery from death into imprisonment for life, the legal consequences of the conviction, as to disability, must have remained the same. The party was incapacitated, forever, from discharging any of the civil relations, equally as if transported, or banished for life, or outlawed, or as if he had abjured the realm, or become a monk professed.^(a) He was equally within the reason of the rule, declaring a party convicted of felony civilly dead. And we perceive, that the Legislature, in 1796, when they changed the punishment from death to imprisonment for life, seemed to be aware that the other common law consequences of the conviction would still follow, for they declared, by express provision, that no such conviction should work a forfeiture of property, real or personal.

If this conclusion be correct, the scire facias which was directed to Plainer, and to him only, ought to have been awarded to his representatives and to the terre-tenants. Two nihils returned upon a scire facias, awarded against a party then under the execution of a sentence of imprisonment in the state prison for life, was a useless act, and of no force in law. And it affords a very unfavourable specimen of the spirit with which the judgment was revived by the representatives of Bachman, (one of whom, if the testimony is to be believed, was a witness to the final discharge of the judgment in 1798,) that no effort was made to give personal notice of the proceeding, to any one representative of Plainer, or to any terre-tenant or purchaser holding under him the property sought to be charged. It wears very much the complexion of a fraud.

3. But, admitting the judgment was not satisfied before the death of Bachman, and was duly revived, it is next contended, that it was satisfied by the sales made in Ontario, under an execution issued at the instance of the execu- . tors oí Bachman, and in Delaware, under an execution issued at the instance of J. R. Van Rensselaer, the assignee of the judgment.

According to a statement of the book account, and the balance due on the judgment, made out to the 17th of April, 1798, and which was taken from the papers of the estate of Bachman, the balance due to Bachman, at that time, on the judgment and book account, and other demands taken together, amounted to 2521. 3s. 10d. This was the statement and balance shown to Jacob R, Van Rensselaer, the first assignee of the judgment by Miller, the executor, as coming from the estate of Bachman; and E. Gilbert, the attorney of Bachman’s executors, in respect to the revival of the judgment, states, in a letter to Van Rensselaer, (and which is an exhibit in the cause,) that Miller, the executor of Bachman, presented to him that sum, as being the balance claimed upon, the judgment, in April, 1798. If we take that sum as the basis of calculation, (and the defendants do not pretend to any greater sum as being due at that period,) there was, after allowing interest on that balance, and after crediting the sum of 332 dollars 25 cents, raised by the sales in Ontario county, due to the estate of Bachman, on the 16th of April, 1803, (the day of the Delaware sales,) the sum of 464 dollars, and no more. The costs of entering up the judgment, in 1787, ought, probably, to be considered as having been included in the accounts and settlements between the parties; and that the 252L 3s. lOd. was the whole démand that existed, at that time, against Plainer. The judgment had been.entered up eleven years before, and by án attorney, Richard Sill, who, as it is notorious, had been dead some years prior to the time- that the balance was ascertained, in 1798. It is .probable the costs of entering up that judgment had been paid by one of the parties to the attorney, and were included in the charge of book account. The balance, in 1798, was made up not only of the judgment debt, as one of the items, but of other debts and demands, and particularly of a large book debt on each side. After such a settlement of various accounts and demands, -and including the judgment debt, it is not to be presumed that the costs of the dormant judgment were omitted, and the representatives of Bachman, who exhibited the balance upon that settlement, as the amount of their demand, ought to be precluded from claiming any sum beyond it. The presumption is, (and they ought to be concluded by it until it is destroyed by direct proof to the contrary.) that the costs of the judgment had been previously settled between the parties. Nor were any costs legally chargeable to the estate oí Plainer, upon the revival of the judgment by scire facias, for the judgment under that process, passed by default, without plea, and no costs were taxed or inserted in the scire facias record.

We may then safely conclude, that at the time of the Delaware sales, there could not have been more than 4G4 dollars due on the judgment. If we credit the 402 dollars 81 cents, being the acknowledged amount of sales in Delaware, there remained only abalance of 61 dollars 19 cents, unsatisfied, when the defendants became interested in the judgment, and sent executions, for the purpose of speculation, into several of the western counties of this state !'• Even, if we were to add to the balance so remaining unsatisfied, the costs of entering up the judgment, it would be only an addition to that balance of 17 dollars 34 cents.

Van Rensselaer purchased the judgment of Miller, one of the executors of Bachman on the 4th of December, J802, for 206/, 3s. lid. and he states that Miller claimed that sum, as being the balance due on the judgment, on the 14th of November, 1801. Upon what data such an estimate could have been made, does not appear; and we know that it could not have been correct, for the balance admitted by Miller to be due in April, 1798, with interest, and after deducting the Ontario sales, fell far short of that sum. Van Rensselaer, who had now become proprietor of the judgment, had already issued his execution to the sheriff of Delaware, by whom it was received on the 13th of Novejnber, 1802, and he added to the 206/. 3s. lid. his own private demands against Plainer, and thereby made the sum for which execution issued to be 275/. 15s. lOd. This addition to the execution was utterly unwarrantable; and to show in how loose and careless a manner the property of Plainer was pursued, it is worthy of notice, that the test. fi. fa. issued in 1800, to the sheriff of Ontario, (as appears from the exhibit of the writ and its indorsements,) contained a direction, not only in the body of it, but by indorsement in the name of the attorney, to collect 772l. 8s. 8d. (the penalty of the bond,) besides costs and sheriff’s fees. We have no evidence that the judgment had ever been even revived hen this execution, issued in the name of E. Gilbert, as attorney.

But; if the 402 dollars 81 cents, raised upon the Delaware sales, did not entirely extinguish the judgment, there were circumstances attending those sales which must be admitted to have produced that effect.

The defendant S. says that he attended the Delaware sales, as agent for Van Rensselaer, the assignee of the judgment, and that the sales were at the court house on the 16th of April, 1803. That when the sheriff was commencing the sales, he entered, on behalf of Van Rensselaer, into an agreement with certain persons, who were settled upon lots advertised and set up for sale, by which, instead of paying up the execution, they might become purchasers of it, and take an assignment of the judgment, and, under it, pursue other property of Plainer, that might afterwards be discovered. That the claimant of one tract of land was not included in this agreement, and he accordingly bid off that land for a sum which was, by a previous agreement between him and the settlers, deemed to be his proportion of the burden of the execution. The other persons bid only nominal sums, and took the direction of the sale, and received a title from the sheriff under the judgment. The real sum bid by one of those persons, and the nominal sums bid by the others, produced the sum already mentioned of 402 dollars SI cents; this sum was produced upon a sale of lands proved to have been worth, at that time, upwards of 16,000 dollars, and, at the time the testimony was taken, upwards of 43,000 dollars. This arrangement left a balance remaining due upon the execution, according to the sum for which it was issued, of -292 dollars 70 cents, and that sum was to be considered as the price which the settlers were to pay for the purchase and assignment of the judgment. This agreement was ratified and carried into effect by Van Rensselaer ; and in June following, the judgment was assigned to Levi Baxter, one of the parties to the agreement, for and on behalf of himself and the associates.

Erastus Root, a witness present at the sale, says, that the defendant S. dissuaded bystanders from bidding, and proposed that the persons interested in the lots should not bid to the amount of their relative proportions of the judgment, but that they should leave a balance due on the execution, to be sent into the western part of the state to be satisfied, and by which the parties were to be indemnified. That a certain sum had been agreed to be left as a balance to remain due on the execution, to be sent to the westward, and the means used to prevent others bidding at the sale, arose from the arrangement made between the defendant S. and the settlers.

There is no essential difference between the answer of the defendant, and the testimony of the witness, in respect to the arrangement of the sale, except that the latter describes the intention of it, and the baneful effects of it, in more clear and explicit terms. The defendant says, he acted throughout the sale, as the agent of Van Rensselaer, and had then no interest in the judgment or sale; and it was not until the settlers had received an assignment of the judgment, that he entered into an arrangement with them to share the risk and profits of a speculating excursion with an execution into the western countries. He says, the settlers first applied to him to be their agent, to collect the balance, for a reasonable reward ; and that having ascertained that Platner owned military titles, it was finally agreed that he should come in as a copartner in the concern, and share in the risk of acquiring some good titles to military lots. It was then that the defendant S. applied to the defendant W., who resided in Cayuga county, and made a proposition to him, that if he would engage in the risk, and attend to the sales, purchases made under the same should enure to his benefit in equal proportion with the others ; and to this proposition, the defendant W. says, he assented.

According to the testimony of Root, the defendant S', must have had an eye to the speculation, at the time of the sale, for if he had remained only a disinterested agent of the owner of the execution, he would not have taken any part or interest in the arrangement between the settlers, but would have left them to satisfy the execution out of the immense property then under its power, by lome equitable apportionment of it among themselves.

The question now occurs, is the owner of an execution to * be permitted to enter into an agreement by which a fair sale . . . . ° . under the usual competition is to be suppressed, and property; , . . . - , .. , to more than thirty times the amount oi the execution, sold r . . * . . . . , , i i tor a nominal sum, m order to leave a, balance to teed the execution, and enable it to sweep away property to an umnea- , , , . . . n i ' • suraole extent, m other counties r ouch an agreement is against the policy of the law, dangerous to the rights of property, and fraudulent in its design. The creditor who suffers an execution, which the law lent him for his security, to be perverted to such a purpose, ought to be deprived of any further use of it. It is satisfied and cancelled by the f°rce °f such an act. This must be the necessary conclus’on ^aw* It would be a violation of all principle, and a reproach to the administration of justice, ,to consider a sma^ balance preserved under such circumstances, and for suc^ usest as a subsisting debt. As was truly observed, in the case of Jones v. Caswell, (3 Johns. Cas. 29.) “ the law v - ' has regulated sales on execution with a jealous care, add provided a course of proceeding likely to promote a fair competition. A combination to prevent such competition, is contrary to morality and sound policy. It operates as a fraud upon the debtor, and his remaining creditors, by depriving the former of the opportunity of obtaining a full equivalent for the property which is devoted to the payment of bis debts, and opens a door for oppressive speculation.” By the interference and act of the owner of the execution, and by a combination between him and third persons, the property of Platner chargeable with the execution, is sold for nominal prices, and for the very purpose of pursuing and Sacrificing other property. This conduct ought to be deemed and adjudged a satisfaction of the execution. The sheriff seized sufficient property, and if it had been wasted or fraudulently sacrificed by the sheriff, the plaintiff would have had his remedy against him. When sufficient goods 1,0 ° are seized by execution, the party can have no further remedy against the defendant, who is discharged by an adequate seizure. He must look to the sheriff. This is the just principle of law, which will not subject the defendant’s property to satisfy the execution a second time. (Clerk v. Withers, 1 Salk. 322. 2 Ld. Raym. 1072.) Here it was not the sheriff, but it was the plaintiff’ himself, by his agent, who agreed that the property on which the execution was levied, should be sold for a nominal sum. Can it be possible that the plaintiff, or those who come in under him with knowledge of all these circumstances, shall be permitted to travel into other counties, and to hunt up other property witli the execution ? It is rarely that we meet with a more flagrant attempt at speculation under the forms of law. It was the pursuit of the property of a helpless and imprisoned convict, who had left his family in shame and misery. The plunder of the shipwrecked property of such a victim, was a hard and unconscientious act, which can never receive any countenance from this court.

The execution was, accordingly, satisfied and discharged, by the sales in Delaware.

4. But assuming that there did remain a balance, after -these Delaware sales, from sixty to eighty dollars, legally due on the judgment, we are then to examine the conduct of the defendants at the Cayuga sales. They had now become the principal owners of the residuum of the debt, small indeed in amount, but mighty in mischief; and the Cayuga sales were under their special and immediate direction.

The defendant S. says, that an execution to the sheriff of Cayuga was sent by him to the defendant W., in December, 1803, and the property oí Plainer advertised for sale on the 5th of March, 1804. The sale was held at a tavern in the town of Scipio, and the defendant S. attended in person from the county of Delaware, a distance, as travelled, of upwhrds of 100 miles. As he had already engaged the defendant W., who resided on the spot, to attend the sales, such a journey, at such a season of the year, and when the sum remaining due, according to his own calculation, was only 110 dollars, is pretty good evidence that the real object of the sale was not the debt, but speculation. It is evidence, also, of the ardour and vigour with which that object was pursued.

At that sale, according to the answer of S., some few persons (of whom he mentions four) attended, but the persons present seemed to suppose Platn'ePs title spurious, and were unwilling to bid. He says, that nothing was said, at the time of the sale, touching the judgment, or the amount due upon it; and twenty-five military lots, lying in' twelve different towns, were separately sold, for the aggregate sum of ten dollars and one cent! On the day following, the deputy sheriff who attended, executed a deed to the defendant W., who purchased for the benefit of the defendants, and the four settlers in Delaware who were interested in the assignment of the judgment. After this sale, the defendant S. purchased in their respective interests in the execution, and the defendants and Levi Baxter remained the sole proprietors of the lands purchased. These twenty-five lots were worth in cash, at the time of the sale, under a good title, (and we have- no evidence that Plainer'1 s title was not good,) 28,950-dollars, and on credit, 57,900 dollars; and in 1818, on credit, 173,700 dollars. The defendant W., in his answer, gives the same account of the sale, and says that he had, previous to the sale, searched the clerk’s office, and believed that many of the Plainer lots “ might become an object worthy of attention.” He says further, that after making the said purchases, he had been enabled, “ agreeably to his original expectation, to have several of the lots settled, and the titles adjusted and quieted.”

Benjamin Tucker appears to be a witness of very fair and unimpeachable credit, and he attended the Cayuga sales, and gives a more detailed account of the transactions that took place. He says, the place of sale was much more retired and secluded than other places in the same town, and that he attended to redeem a lot, and part of another lot, which were held under Plainer, and were considered to be bound by the judgment. That he purchased in that lot, and the half of another, amounting, in the whole, to 900 acres, for a nominal sum, and that the defendant TV. purchased all the other lots that were sold, and gave not more than a dollar, for each lot of 600 acres. That the defendants were not disposed to come to any terms of accommodation with him, in respect to his land; and after three or four lots had been sold, he declared, in the hearing of the defendants, that in order to save his lot, he would bid to the amount of the execution, on the next lot that was set up j that the sale was then stopped, at the instance of the defendants, and the witness was called aside by one of them, and told that they would not bid on his lot, if he -would engage not to bid on any other lot; that he agreed to this proposition, and after some other lots were sold, the lots of the witness were set up, and he bid his land off, without opposition, for a sum less than two dollars, and took the sheriff’s deed.

These facts are conclusive upon the case of the Cayuga sales, and show that they were a mere mockery of justice, and perverted to the total sacrifice of the rights of Plainer. Comment upon them becomes useless. We cannot hesitate, for a moment, in pronouncing the whole proceeding an act of fraud. Here, also, if not before, the execution is to be deemed satisfied and discharged by the act of the party.

5. The defendants, however, giving credit on the execution for the sum of 11 dollars 28 cents, according to the sheriff’s return, proceed next to the county of Onondaga-It seems their intemperate avidity for speculation was not capable of being satiated with success, nor cooled by time. The Onondaga sales were not made until the 15th of Ocio» her, 1806. The balance then due had increased by the addition of interest, (according to an estimate on the part of the defendants,) to 117 dollars 6 cents. The defendant, £., says, that he was present at the sales, and that twenty-two lots, lying dispersed in eleven towns, were sold by a deputy sheriff, and purchased in by the defendant W. That nothing was said, at the time of the sale, relative to the judgment, or the amount due thereon. The purchase money for these twenty-two lots, was 18 dollars 52 cents; yet it is in proof that the cash value of those lots, at the time of the sale, was 19,800 dollars, and on a credit, 31,600 dollars; and when the testimony was taken, 94,800 dollars, at a credit. The defendant W. gives the same account óf these Onondaga sales, and says, that the deed was executed by the deputy, on the day of the sale, to the three associates, feeing the defendants and Baxter, and that the people were deterred from bidding, under an opinion that the Plainer title was bad.

- This is all the information touching these last sales, and the facts admitted speak for themselves.

6. The next epocha in the history of this case, is the sale in Seneca county, on the 25th of May, 1807. The defeudant S', says, his two associates attended, and a number of lots were sold for the benefit of the concern. The defendant W. says, that 11 lots were sold for the benefit of the concern. The defendant W. says, that 11 lots, lying in five towns, were sold under the same judgment, and upon an .execution issued for the remaining balance, and bid off by him and Baxter, for 28 dollars. According to an estimate, made by a witness, Humphrey Howland, those 11 lots were worth, in cash, at the time of .the sale, 14,750 dollars, and én-a credit, 29,500; and on a sale on credit, at the time he gave,his testimony, 78,500 dollars.

But the cupidity of the defendants was still insatiable, and the two lots of the plaintiff, lying in the then county of Onondaga, were afterwards seized and sold. The defendant S. says, that he claims a title to those two lots by virtue of a sale by the sheriff of Onondaga, under the judgment, in the summer of 1807. The defendant W. is more precise as to the time, and says, that the sale was on the 7th of September, 1807, and that the two lots, claimed by the plaintiff, were, with others, purchased by the three associates, at such sale, under the aforesaid judgment of Bachman. He says, that in October following, he took possession of the two lots, as owner; and afterwards, on the 30th of September, 1812, sold them to the defendant S. On the same day, according to the answer of the defendant S., Baxter, also, released his right to these two lots, so that the defendant S. is now the sole owner under the judgment title. He shows no other title, nor does he pretend to any other, and declares that he entertains no apprehension that the title derived under the said judgment is not good.

It may here be observed, that the plaintiff shows a title to those two lots, derived from a purchase from Plainer, in May, 1792.

The conclusion, from this review of the case, is, that the sale of the plaintiff’s lots, in 1807, was fraudulent and void. There are several acts in the progress of the proceedings under the judgment, between 1798 and ISQ7, from each of which the like conclusion might be drawn.

The counsel for the defendants were so pressed upon the argument, with the weight of the proof, that they offered, in behalf of the defendant S., to release all claim and title to the lots of the plaintiff, under the sale in 1807, but objected to a surrender of the possession, or to make a more general release. But the defendants do not set up, or produce, any title, or semblance of title, other than that derived under the judgment, and as the plaintiff received a deed of the lots from Plainer, in 1792, for a valuable consideration, the necessary intendment of law, in the absence of all proof to the contrary, is, that the title of the plaintiff is a good and valid title. The defendants have precluded themselves from questioning the original title of Plainer, for they set up no title but under him, and they certainly ought not to be permitted to derive any advantage whatever from their fraud, or to retain a possession so unjustly acquired. They are bound in equity to quiet the plaintiff’s title, by every act in their power, as some compensation for the injury they have* 1 done him. They ought, therefore, to release all claim and pretension to the lots, and to account for the rents and profits, and for all intermediate waste. The defendants ought to be equally charged under the decree, for the acts of fraud were joint acts ; and though the one defendant has conveyed •his right in the lots to the other, yet this was an act done pendente lite, and more than two months subsequent to the 'filing of the bill.

I might, perhaps, have rested the cause upon some one of the selected points, without examining the others', yet I have deemed it fit and proper, for the sake of example, to review ’every part of the history of the case which has been laid before me. It is not, however, without pain and regret, • that I have felt myself under the necessity of using strong language of reproof and censure upon so many of the circumstances that occurred. Such a case can never be permitted to pass without animadversion, and I hope that this-, and many other instances of like abuses, which I have to deal with, may, by the correction they receive, teach a lesson of wisdom and accuracy, moderation and justice, on future occasions. - 1

The following decree was entered: “ It appearing to the Court, that the judgment in favour of Abraham Bachman against Henry Plainer, mentioned in the pleadings and proofs in this cause, was satisfied by a settlement made by and between th.e parties to it, in the year 1798; And it further appearing, that the said judgment, on the supposition that it was not so discharged, was not duly revived by scire facias, after Henry Plainer had been convicted of felony, and sentenced to imprisonment in the state prison for life : And it further appearing, that the balance assumed to have been remaining and due upon the said judgment in 1800, was satisfied'upon the execution of the writ of testatum fieri facias, also mentioned in the pleadings and proofs, to have been issued thereon to the sheriff of the county of Delaware: And it further appearing, that the subsequent execution issued upon the said judgment, to the sheriff of the county of Cayuga, also mentioned in the pleadings and proofs, was fraudulently issued and executed, and that the sales under it were fraudulently made by the act and procurement of the defendants: And it further appearing, that the subsequent executions issued upon the said judgment to the sheriffs, respectively, of the counties of Onondaga and Seneca, also mentioned in the pleadings and proofs, were fraudulently issued and executed : It is thereupon ordered, adjudged, and decreed, that the title acquired by the defendants and Levi Baxter, and afterwards vested in the defendant Samuel Sherwood, by sale, under the writ of testatum fieri facias, issued upon the said judgment to the sheriff of the county of Onondaga, to lot No. 33, in the town of Lysander, and lot No. 76, in the town of Solon, then in the same count}', be, and the same is hereby declared to be fraudulent and void : And it is further ordered, 8zc., that the defendants, respectively, within thirty days after notice of this decree, under the direction of one of the Masters of this Court, by good and sufficient deeds of conveyance, containing apt covenants against their own acts and deeds, release and convey to the plaintiff, his heirs and assigns, forever, all their respective right and title, claim and demand, to’the said lots of land, with the hereditaments and appurtenances to the same belonging; and that they, also, within the same time, deliver to the plaintiff, the full, peaceable, and actual possession of the said lots. And it is further ordered, &c. that the defendants pay to the plaintiff his costs of this suit, to be taxed, and that they respectively account to and with the plaintiff, for the rents, issues, and profits of the said lots, and for the damages arising from any and all manner of waste committed thereon since the defendants, or either of them, or persons holding under them, or either of them, obtained the possession of the said lots'; and that a reference be made to one of the Masters of this Court to ascertain and report the amount thereof, and that when such report shall have been made and confirmed, the plaintiff may have execution for the amount thereof, together with his costs, according to the course and practice of the Court.”

(a) Vide Matter of Deming, 10 Johns. Rep. 232 and Loflin v. Fowler, 18 Johns. Rep. 335.

The^"ud|mcnt P. was satisfied by the settiement between the parties ¡n Avgust, ,

The penalty ofabondcannot be made to cover any other debt or demand than that mentioned tion.

Nor can a theS™OT¡¿naí ^liy paia/be cover°new°and garments be^®en 1116 par‘

It seems that victeToTfebny ?nd sentenced ™®nts^r(pf=[*.n aon’is ‘Muter ■ martaus. And, tlierefore, writs of . scire /«etas issued to such convict in prison, and not to his legal representatives, or terre-tenants, to revive a judgment, and two nifdls returned thereon, can have no legal eflect or operation.

An agreement by . the owner of an execution%with . certain persons, to prevent the usual competition at a sheriff’s sale, leave a small balance on the execution, for seizing P other Sebtor,t3isf£he and theTxecutionis deemed, in law, to be satisfied, there having in law, to be been th“dexecution“ —1 far greater sum than the debt, consequence of lent fa»Uiee ment, sold for mere nominal prices.

sheriff seizes suEcient^ pro-debtor °under the debtor is from the >dgplaintiff" must Itff^orhis mt" ney‘ Where the

ga]es by the fjg,',^ “under fraulakntand V0ld"

Saies by the tfegef0*under fraudukntand V0ld"

Bales by the m^undei^tim frauduientand V0ld‘