author: Judge Hitchcock : Judge Burnet’s

text:
    Curtis and Wilkins v. Cisna’s Administrators.

      Judgment at Law — Assignee—Equity.
    Questions litigated and decided in an action at law can not, as of course, ha re-examined in equity.
    Assignee of an agreement concluded in equity by decision at law against his assignor.
    This case was reserved for decision here in the county of Knox. It is charged in the bill, that the complainant, Wilkins, being owner of a tract of land in the county of Knox, on the 11th of May, 1816, contracted to sell it to Thomas Cisna, since deceased. That seventy sheep were delivered by Cisna upon account of the purchase money, and a written agreement entered into, by which Wilkins agreed to convey +the land to Cisna, on or before the 1st day of September ensuing, upon Cisna then paying $100, and securing to be paid by his own bonds, and a mortgage on the lands, the further sums of $150, payable 1st of April, 1817; $100, 1st of April, 1818; and $100, 1st of April, 1819. That the contract was made and executed, and deposited for safe keeping, at Mount Yernon, where, complainant understood, the parties were to meet on the 1st of September to carry it into effect. The bill further charged, that Wilkins attended at Mount Yernon on the day to execute the contract, but that Cisna did not attend. That on the 7th of September, Wilkins executed a deed to Cisna for the land, and shortly afterward caused it to be tendered to Cisna, at his residence in Fairfield county, and required of him to perform his part of the agreement, when Cisna refused to receive the deed, or to comply with the contract. That a subsequent tender of the deed was made to Cisna, at Mount Yernon, who again neglected to perform on his part. That Wilkins being pressed for money, about the 1st of February, 1817, assigned his contract with Cisna to Silliman and Curtis, and entered into an agreement with them, that they should use his name to enforce the contract with Cisna, they to indemnify him against any claim of Cisna, and delivered tff them the deed executed for Cisna; at the same time a deed for the lands from Wilkins to Silliman and Curtis was executed and delivered to them. The bill further alleged, that Cisna was notified of the transaction, and again requested to accept the deed, and perform the contract, but did not do it; that Silliman afterward transferred his right to Curtis, who was at all times ready, willing, and able to perform the contract on his part; that while the contract remained unexecuted, Cisna deceased, and his administrators brought an action against Wilkins to recover back the value of the property received by Wilkins on the contract; that upon this trial a recovery was had against Wilkins, in consequence of the defendant not being able to prove a tender of the deed at the day, and in consequence of a defect in the proof of the chain of title at the trial. The bill prays an injunction against the judgment at law, and that the administrators of Cisna may be compelled to accept the conveyance, and pay the money.
    *The answer denies all knowledge of the facts set out in the bill, and calls for proof. It insists that Wilkins having conveyed to Silliman and Curtis, Cisna, or his'representatives, are not bound to take from them a deed; and it sets up and relies upon the trial at law as concluding the rights of the parties under the contract, which ought not to be re-examined in equity.
    The proofs substantially sustain the allegations in the bill, except that there is no testimony of Wilkins’ being at Mount Yernon to complete the contract on the 1st of September. The written contract between Wilkins and Silliman and Curtis, by which Cisna’s contract was assigned to the latter, contained the following reference to the contract with Cisna in describing the land: Being the same that Wilkins “ had contracted to sell to one Thomas Cisna, and which contract has since fallen through in consequence of Cisna’s not complying with his part.”

      Curtis, for the complainants :
    The trial and judgment at law evidently constitutes the main ground of the defense ; and this can not prevail either upon principle, or upon authority.
    Had the interest remained in Wilkins, and should he bring an action on the contract against Cisna’s administrators, could they plead the judgment in bar, or give it in evidence to defeat a recovery? Upon an executory contract, containing mutual stipulations, both parties may sustain actions at law, and a resort to equity may at last be necessary to do justice between them. Cisna may recover damages for the non-conveyance; Wilkins may recover the purchase money; and neither could plead his own recovery in bar to the action of the other; yet there might be such inequality in the different amounts rendered by different juries, perhaps in different tribunals, or such other circumstances might attend the recoveries as to occasion gross injustice, did the mere fact of a judgment at law preclude all inquiry by a court of equity.
    In the case of Rees v. Smith, 1 Ohio, 124, decided by this court at the last term, the complainant had actually prosecuted an action at law upon the same contract against the defendant; a trial was had upon the merits, and a verdict *and judgment against him. So far from regarding this as conclusive upon him, the court treat it as a strong ground for extending to him the aid of a court of chancery. “We can not,” say the court, “ shut our eyes on the fact, that the remedy at law has been extinguished by a judgment rendered against the complainant, by a court of competent jurisdiction, on the ground alleged by the defendant., that Solomon Mees had not complied with his contract.” “ The accidental circumstance that the complainant’s remedy at law has been destroyed by the practice of the defendant, ought rather to strenghten than to weaken his claim to the aid of this court.”

    Here the complainant himself had resorted to an action at law: he was defeated because he had not complied on his part so as to entitle him to sue at law; yet this did not close against him a court of equity. Certainly the same consequence must fairly result from an unavailing attempt to sustain a defense at law, for the same reason adjudged untenable.
    There is another reason why the proceedings at law can not be set up as a bar to this suit — the person in whom the real substantial interest was vested, was not a party to that proceeding.
    Long, before the commencement of the suit, the beneficial interest in the contract had been fairly transferred to Siliiman and Curtis, and of this Cisna had full and complete notice.
    Oh this point two propositions are insisted upon :
    1. A court of equity will always protect the rights of a bona fideassignee to a chose in action.
    2. A party having notice that his contract is assigned, in equity, can not, by any act of his own, or by any concert with the other original party, defeat or impair the rights of the equitable assignee. '
    The first position is asserted by the elementary writers, is sustained by the adjudged cases, and is contained in all books of reference and practice.
    Blaekstone, in his Commentaries, vol. 2, p.442, distinctly asserts-it; so does Powell, in his treatise on Contracts, vol. 1, p. 317. It is laid down in 1 Bacon, 249, and various authorities cited.
    *The second-proposition can not be separated from the first; it is a necessary consequent. In Martin v. Harris, 2 Term, 595, an administratrix claimed to appropriate moneys arising upon an assigned agreement for wages, to pay off a judgment against the assignor, but the court would not permit her. The money was secured to the assignee. If the obligor pay money on a bond, though not assignable after notice of an assignment, he shall pay it again to the assignee. 2 Ver. 540 ; Chan. Cases, 232. If a debt or other chose in action be assigned, and the assignor release to-the debtor, who has notice of the. assignment, it can not affect theassignee. Ch. Cas. 169.
    The direct acts of the parties to a contract can not impair the-rights of an assignee. Can these rights be impaired by any indirect proceeding? The release of the assignor avails nothing. Payment by the obligor to the obligee avails nothing; a judicial decision between them can not bo more operative.
    When the administrators of Cisna commenced their suit against. Wilkins, they knew he had no interest in the contract, upon the-operation of which their right of recovery depended. No act of his, out of court, could avail anything; how, then, could he do-anything in court by which the contract could be touched ?" Would Wilkins’ default bind Curtis? Would h,is confession change-the rights of the parties ? Could he by pleading compromit interests otherwise beyond his reach ? It is.certainly clear that the interests of Curtis were as incapable of being affected by the acts of Wilkins in court as elsewhere. The judgment binds the parties and interests arising after the proceedings commence. But it does not affect strangers, or interfere with interests created and vested before the institution of a suit.
    It is said that Cisna could only sustain an action against Wilkins ; he could not maintain one against the assignee. This is true of an action at law, but he could have filed a bill in equity against both to rescind the contract, and recover back what ho had paid. If he chose to proceed at law, he must encounter the consequence. He subjected himself to the inconvenience of litigating the matter with Wilkins in one suit, and with his assignee in another. To *hold Curtis concluded by the decision at law, to subject his rights to be determined in a case where he was not and could not be a party, is to subvert all established principles.
    Irwin,-for the defendants:
    The action of assumpsit is an equitable action, and when brought to recover the amount paid upon a sale of land, on the ground of a failure of the contract, the plaintiff can recover no more than the amount paid, wiLh interest. Such was the action brought by Cisna’s administrators v. Wilkins. The right to recover depended upon the failure of the contract, and this fact is established by the judgment in the cause. It is not competent for the complainants to impeach this judgment in equity, by asking of this court now to make a different decision, unless he shows that he was prevented from making his full and fair defense at law by fraud, accident, or some act of the other party, unconnected with negligence or fault of his own. The doctrine is fully laid down in 3 Johns. Ch. 356, and 1 Schoales & Lefroy, 203, and also 2 Bibb, 6, 326.
    The fact that the contract had been assigned to Silliman and Curtis can not vary the case. The right of the assignee is no greater than that of the assignor. When they bought Cisna’s contract, they had full knowledge of the difficulties between the parties, and they agreed to indemnify Wilkins against all costs and damages. The failure of Wilkins to perform the contract, upon which the right of action accrued had taken place, before the assignment, and the right of action, with all its consequences, was beyond the reach of Wilkins or his assignee. An assignment could not divest it out of Cisna, and the right to prosecute the suit against Wilkins included the proposition that the decision should bind all interested. It is certainly well settled that the purchaser of a chose in action takes it subject to all the equities and interests existing between the original parties. 1 P. Wms. 130, 497; 1 Strange, 244; 1 Vesey, 123; 2 Vesey, 520.
    The case of Rees and Smith, relied upon by the complainants’ counsel, does not seem to have any bearing on the point now in controversy. There the court proceed on the Aground of fraud and accident; there the plaintiff at law was defeated by the misconduct of the defendant. No allegation of that kind is made here.
   Opinion of the court, by

Judge Hitchcock :

From the pleadings and evidence in this case it is manifest that the subject matter of the present controversy has been adjudicated by a court of law, in an action commenced by the present defendants against the complainant Wilkins. The object of the former suit was to recover back the consideration money which had been paid for the land, and could have been sustained upon no other principle than that the contract had been abandoned, or put an end to by the parties. In that case full defense was made, and precisely the same evidence exhibited on the part of the defendant as on the present occasion, with the exception of the testimony of a single witness. The testimony of this witness does not materially vary the facts. Having this evidence before them, the jury returned a verdict for the plaintiff, and upon this verdict the court rendered judgment. About two years after the rendition of this judgment, the bill now before the court is filed, the prayer being first to enjoin the judgment at law, and second to enforce a specific performance of the contract.

As before observed, the court of law must hav.e proceeded upon the principle that the contract was at an end. There can be no doubt that the subject was completely within their jurisdiction ; and whether, the decision of the case was or was not correct is not now a subject of inquiry. A court of chancery does not act as a court of errors, to examine or reverse the judgments of a court of law. Upon a case made which comes exclusively within the jurisdiction of a court of chancery, and where a court of law could give no relief, chancery will interfere to enjoin or relieve against a judgment at law. But where the courts of law and of chancery have concurrent jurisdiction, and a party electing to pursue his remedy in one fails, he shall not be permitted, as a general rule, to resort to the othor. It is said, however, in the present case, that the complainants seek to enforce the specific performance of a contract, which could not have been done by a court of law. This *is true; and had the present bill been filed during the pendency of the suit at law, and had no defense been made in that case, this court might, and probably would have given relief. This, however, was not the course pursued. Wilkins had a right to elect, and did elect to make full defense in that court. He preferred to submit his controversy to that jurisdiction, and after a full examination the decision was against him. In this decision he acquiesced for two years or more, and, when threatened with execution, comes into this court to have the matter tried over again. I think he is too late, especially-if, in addition to the other circumstances, we take into consideration the fact that Cisna, the person with whom the contract was originally made, is dead, and that this suit is prosecuted against his personal representative.

The complainants, aware of the difficulty they have to encounter in consequence of the decision at law, undertake to distinguish this from ordinary cases. It seems to be admitted that if Wilkins were the sole complainant before the court, the judgment at law would be conclusive, and the bill must be dismissed. But it is argued that Curtis was not a party in that case, and no person who has not had a day in court, none but parties and privies, can be concluded by a judgment at law or a decree in chancery. It is urged that Curtis alone is the meritorious and interested complainant — that Wilkins has no interest — that ho is joined from necessity, or for the sake of form, in order to obtain the injunction — that inasmuch as Curtis has had no day in court he has now a right to be heard — and that the judgment against Wilkins shall not operate to the disadvantage of him, Curtis. This point has been argued with ability and ingenuity. Many authorities have been cited for the purpose of sustaining the position assumed. I feel no disposition to question the force of these authorities, but the difficulty is that they do not, in my apprehension, apply to the case under consideration. In order to ascertain the strength of this argument, let us for a few moments examine as to the relative situation of these parties, and inquire whether Curtis appears be¿ fore the court in a more favorable point of view than Wilkins. He claims to be, and is, an assignee, not the assignee of Cisna, but of Wilkins. *The contract for the purchase and sale of the land was entered into by Cisna and Wilkins. When this pontraot was reduced to writing, partial payments were made by Cisna to-Wilkins, and it was agreed that at a subsequent period the land should be conveyed, a further payment made, and other acts performed. .Both parties made efforts for the performance of this contract, but whether it were in fact performed by either is not now the subject of inquiry. Previous to the commencement of any suit, and but shortly after the contract was made, Wilkins assigned toSilliman and Curtis his interest in the contract, conveyed to them the land, and at the same time took from them an.obligation to indemnify him against any claim on the part of Cisna. This assignment was made without the assent of Cisna, the assignees having full knowledge of all the facts connected with the whole transaction. Subsequently Silliman transferred his interest to Ourtis. Thus Curtis, by his own act, became interested in the businoss, and, as far as he could, voluntarily placed himself in the situation of Wilkins. By these transactions the rights of Cisna. could not, it is believed, be affected.

It will not be denied, I presume, that had Cisna, on his part, complied with the contract, he might have applied to a court of chancery to enforce a specific performance by the other contracting party; or he might have resorted, at his election, to a court of law for the recovery of damages for the non-performance by his adversary. O.r if the contract was abandoned, he might recover back the amount which he had paid. If he elected to proceed at law, he must, from .necessity, proceed against Wilkins. Curtis was no party to the contract, and at law Cisna would have no claim against him. But were we to adopt the principle contended for by the complainants, Cisna, by the joint act of Curtía and Wilkins, would be deprived of his legal right; he could not avail himself of the remedy at law, but would be driven to-chancery; a doctrine from which such consequences would result, can not be sanctioned.

The complainants urge that Curtis had no day in court; but can this be said with propriety ? True, he was not a party upon the record, but from the bill it appears that he was in fact and in truth-the party in interest. He had undertaken *to indemnify Wilkins against any claim which might be brought against him by Cisna. When the action at law was commenced, he appeared, as is proven by the testimony, and managed the defense* until final judgment, and it is presumed that he will not complain that his rights were sacrificed in consequence of any misconduct or neglect on the part of his assignor.

Upon the whole, I am of opinion that, inasmuch as the subject-matter of this controversy has been settled by the adjudication of a court of competent jurisdiction; was acquiesced in for two-years; and inasmuch as the assignee, under the circumstances of this case, does not come before the court under circumstances any more favorable than those of the assignor, therefore the bill of the-complainants must be dismissed with costs.

Judge Prase concurred.

Judge Sherman, having been of counsel, did not sit in this-cause.

Judge Burnet’s

dissenting opinion:

In stating the reasons why I can not concur in the opinion of the court, in this case, it will be necessary to examine:

1. The consequences of the non-performance of the contract- on* the 1st of September.

2. The effects of the assignment to the complainant Curtis.

3. The operation of the judgment at law on. the rights of the* parties to the present suit.

1. The covenants in this contract are simultaneous. The deed-was to be executed and delivered to Cisna on or before the 1st of September, upon his then paying the first installment, and securing the residue by bond and mortgage. Neither party could charge-the other with a breach, so as to sustain an action at law, till he had tendered a performance, for till then they were in pari delicto. If a man gives credit and relies on his remedy, he is left to that remedy; but in this case no credit was given. The vendor was-not to part with the title, nor the vendee with the money, till each was secured. In Jones v. Berkly, and Hotham v. The East India Company, Doug. 665,and 1 Term, 633,Lord Mansfield decides-that the dependence or independence of covenants must be collected from the evident sense and meaning of the parties, and that however transposed they *may be in the deed, their precedency must depend on the order of time in which the intent •of the transaction requires their performance. Every person will •decide from the first reading of this contract that neither party intended to trust the other, or to render himself liable to perform in consideration of his remedy, on the contract, but in consideration of an actual performance by the other party. Wilkins en.gaged to deliver the deed to Cisna, on the 1st of September, upon his then paying, etc. It is not pretended that either party tendered a performance on that day, or that Cisna, on any subsequent day, offered to perform, or was ready or willing to perform, or that he made any attempt, either to execute or disaffirm the contract, prior to the tender of the deed by Wilkins. It seems that Wilkins, on the 1st of September, was at Mount Yernon, where the contract was made and deposited for safe keeping, and where he understood the parties were to meet for the purpose of performing it, and he avers that he was then ready to execute the ■deed. Cisna not attending, Wilkins executed a deed at Mount Yernon, seven days thereafter, and had it tendered to Cisna, at his residence, in Lancaster. During the succeeding winter a •second tender was made of the deed, and after the assignment an offer was made by the assignees to perform the contract on the part of Wilkins. On these facts the question arises whether this contract has been forfeited by any laches of Wilkins, so as to bar him or his assignees from a specific performance. Admitting that Cisna was under no obligation to attend on the 1st of September .at Mount Yernon, where the contract, which consisted of but one part, was deposited, and where the land, of which delivery was to be made, was situate, and that the understanding of Wilkins, on ■that point, was incorrect, it would by no means follow that there has been that kind of laches that ought to induce a court of equity to refuse their aid. Time is not usually considered as being of the essence of contracts, though it may be made so by the stipulation of the parties. Equity will relieve in cases of forfeiture, when ■compensation can be made, and the default is only in time; and the books abound in cases where chancery has enforced agreements, although the plaintiff had failed to perform on the day fixed on in the contract. It will not be contended by me that time is of no moment, *and that men may fulfill their engagements when they please. Such a principle would be fraught with mischief. It would introduce that kind of negligence and disregard of obligations that would be as inconvenient to the business of society as it would be injurious to public morals. The modern rule on this subject seems to be, that a party who has not performed his undertaking, on the day appointed, may nevertheless, claim the aid of a court of chancery, if he can show a reasonable excuse for his omission; or if the opposite party has acquiesced in the delay, unless there has been such a change of circumstances, as would render a specific performance manifestly inequitable. In the case of Vernon v. Stephens, 2 P. W. 66, the complainant, the purchaser, had not paid the money on the day stipulated, yet he obtained a decree, the chancellor observing that if the defendant got his money, interest, and cost, he would have no reason to complain ; that lapse of time in payment might be compensated with interest and cost; that in cases where there has been no acquiescence-by the defendant, nor any specific apology offered by the complainant, courts have decreed a performance on the ground that there had been no unnecessary delay practiced by the plaintiff. It • is also said the title to an estate requires so much clearing and inquiry, that unless substantial objections appear, not only as to time, but as to an alteration of circumstances affecting the value of the thing, or such as arise from .the conduct of the parties themselves during the time, the objection can not be sustained. Newland, Covenant, 235.

In the case of Langford v. Pitt, 2 P. W. 629, the complainant not only had not tendered a conveyance on the day stipulated, but had it not in his power to do so, by defect of title. The master of the rolls decided, that it was sufficient if the party contracting to sell had a good title at the time of the decree, and in the case of Stourton v. Meers, cited in the last case, it appeared that the complainant, the vendor, had not a perfect title at the time of the articles, or even at the time of the decree, and the court granted him further time. The title was afterward perfected, and the defendant decreed to be the purchaser. In the case of Wynn v. Morgan, 7 Ves. 202, it was held, that as no unnecessary delay was imputable to the complainant, a specific performance ought not to be refused, because he had not a good title at the *time of the contract, or even at the filing of the bill, and the title having been perfected, the court decreed a specific performance. It was de~ -cided in the cases of Williams v. Thompson, and Gregson v. Riddle, referred to in Newland, 238, that even though a clause be inserted in an agreement, declaring it void* if the stipulation as to time be not complied with, still equity will not consider the performance at the day an essential part of the contract. In the lat ter case, Lord Thurlow said, 11 It has been often attempted to get rid of an agreement on this ground, but never with success. The ■most that has ever been made of the circumstance of an agreement, not being carried into execution at the time agreed on is, it has been held to be evidence of the waiver of the agreement, but has never been held to make the agreement void.” It is not to be inferred, however, from these cases, that time, in a contract, is ■wholly immaterial, and that parties may trifle with their agreements on a calculation that they may perform them as may be most convenient to themselves. If delay takes place, some satisfactory reason must be given for it, or it will be considered as a waiver of the bargain. There is a great diversity in the causes that give rise to delay in the performance of contracts, and each case must depend, more or less, on its own circumstances ; but it is believed no case can be found, in which equity has considered "the day wholly immaterial. Newland, in his treatise, 242, states the rule to be, that when a party who applies for a specific performance of a contract, has omitted to execute his part of it, for a ■considerable time after the day appointed for that purpose, without being able to assign sufficient reasons to justify, or excuse his -delay, the court will not compel a specific_ performance, and the reason given is, that the court consider his conduct as evidence of an abandonment of the agreement. The equity of this rule has been extended to contracts, in which no day was specified, where ■the complainant had consumed much time unnecessarily, and a material alteration had taken place in the value of the property. Guest v. Homfray, 5 Ves. 818. In that case, the master of the rolls observed, that if the polaintiff stands acquitted of the charge of practicing unnecessary delay, in making out his title, the court will not refuse him a specific performance, because he afterward ^suffers a period of time to elapse before he files his bill. The opinion of Chancellor Kent, in Benedict v. Lynch, does not clash with the principle here stated. It will be found, on examination, that there is no similarity between the facts of that case -and those which exist in this. Benedict had not merely negleeted a performance for a few days, but for several years. The contract contained an express stipulation, that if the plaintiff failed, in either of his payments, the agreement was to be, void. The plaintiff had admitted his inability to perform, and had agreed that if defendant would permit him to remain on the premises, one year-, he would then give up the possession. He was not only guilty of gross negligence, but the facts of the case amounted to an actual abandonment. Here the contract was to be performed by both parties, on the 1st September. The land was contiguous to Mount Yernon, where the contract was made and deposited. The complainant understood the parties were to meet at that place, to execute the contract, and attended on the day, as he avers, ready to do so. The defendant did not attend. Seven days .afterward the complainant executed a deed, which was tendered to defendant at his residence, and afterward at Mount Yernon. These facts show that the delay of the tender was neither unreasonable nor unaccounted for, and every presumption of an abandonment is excluded. I therefore conclude that the objection as to the time of the tender can not be sustained.

2. The second inquiry is, how far the rights of the parties have been affected by the assignment to Curtis.

It appears from the bill and exhibits, that on the first of February, 1817, which was several months after the deed had been, executed and tendered to Cisna, and after his refusal to -perform the contract, Wilkins, being pressed for money, was under the necessity of selling his interest in the contract, and did sell and assign it to Silliman and Curtis, authorizing them to make use of his name in any suit that might be thought necessary; at the •same time the deed executed and tendered to Cisna was delivered to them, with authority to deliver it to Cisna, should any compromise take place. Silliman afterward sold and assigned all his interest in the contract to Curtis, for whose benefit *the suit is prosecuted. These are the material facts in relation to the assignment.

On the part of the defendant, it was contended that by this assignment Wilkins put it out of his power to perform his covenant, and that the defendant could not be required to accept a conveyance from an assignee.

It is not easy to perceive the force of this objection; Wilkins Rad a right to sell his interest in the contract, provided he did it so as not to prejudice the rights of the defendant. This appears to be the fact, as it is one of the stipulations of the agreement, that the deed first executed and tendered to Cisna should be put into the hands of the assignees, with power to deliver it to Cisna on his performing the original agreement. There was no necessity, therefore, of a'conveyance from the assignee to the defendant. The title offered is from Wilkins himself'. The object of the assignment was not to vest the title in the assignee, but the money due on the contract with Cisna; and with that view the deed executed on the 7th of February was delivered, in the form of an escrow, to be delivered over to Cisna on his complying with the contract. A deed generally takes effect from the delivery, but this rule is departed from, and the doctrine of relation is resorted to, when it becomes necessary to prevent fraud, or give effect to the intention of the parties, if third persons are not injured.

A deed delivered as an escrow usually takes effect from the performance of the condition and the actual delivery to the grantee, but the fiction is always resorted to, and the deed considered as taking effect from its execution, when justice requires it.

In the case of Butler and Baker, 3 Co. 35, it was decided that a. deed delivered to a third person, as an escrow, and afterward delivered to the grantee, should relate back, and take effect from the first delivery, for the purpose of giving effect to the deed; as if a feme sole, having made a deed, should marry after the conditional delivery, and before the delivery to the grantee; or if a grantor, whether feme sole or not, should die between the first and second delivery. In these cases, the deed would relate back to the first delivery. This is done to prevent injury, and to ^uphold the deed, or in the language of Coke, “from necessity ut res magis ■valeat quam pereat. To this intent, by fiction of law, it shall he a deed ah initio, and yet in truth it was not his deed till the second delivery.” In the case of the lessee of Woolams v. Clapham, 1 Term, 600, it was hold, that the title of the surrenderee, after admittance, was perfect, as from the time of the surrender, and should relate back to it. That is, although the title, in strictness of law, is not complete till the admittance, the title shall relate back, and take effect from the time of the surrender.

So in the case of Hermitage v. Thompkins, 1 Lord Raym. 729, it was ruled, that if a man demises lands by indenture, in which he has no interest, and afterward buys them, he will be estopped,, unless the want of title appears in the recitals of the lease. In that case, the fiction carried back the grant to the lessor to a period antecedent to its daté, to give effect to the lease made at a time when the lessor had no pretense of title. In the case before us, the deed to Cisna was executed on the 7th September, and tendered shortly after, and on the first of February following, when the contract was assigned, it was delivered to Curtis, the assignee, as an escrow for the use of Cisna, and is now brought into court for that purpose; and, if accepted, must relate back to the first delivery, or, if necessary, to its date. Curtis, by the terms of' the assignment, was made the instrument for passing the title direct from Wilkins to Cisna. He disavows all claim of title in himself, and produces the deed, praying for such a decree as will make it operative, to vest the title in Cisna. There is, therefore, no ground for the objection, that the title must pass through a third person; but if such an inconvenience could result from the assignment, the decree can be so framed as to guard against it. Had Curtis purchased for the avowed purpose of overreaching the right of Cisna, he would have been a fraudulent purchaser, as he had notice of the contract, and he would have held the title subject to the equity of Cisna.

The deed of the 7th September, as we have seen, was delivered to Curtis as an escro.w, and it was .not the intention of the parties that the title should vest in him, unless that deed should become inoperative by a failure on the part of *Cisna; as Wilkins had a right to assign his interest, this court ought to protect it in the hands of his assignee. But it can not be necessary to pursue this subject further. The case of Hashbolt v. Porter, 2 Pow. 138, seems to establish the principle, that an assignee, not being a party to a suit against his assignor, is not bound by the decree rendered, but may go into the whole merits, in a subsequent suit, in which he is a party.

3. The next inquiry is, whether the judgment at law can operate as a bar to the decree prayed for by the bill. It appears by the exhibits, that after the assignment, the tender, and the death of Cisna, his administrator commenced an action of assumpsit against Wilkins, for the purpose of recovering from-him the value of the sheep delivered on the contract. The declaration contained but one count, charging that defendant was indebted to Cisna, in his life, in the sum of $6,000, as well for divers goods sold and delivered, as for one hundred sheep sold and delivered by the said Thomas to the said Francis, and also for money by the said Francis before that time had and received to the use of the said Thomas. The defendant pleaded the general issue, on which there was a verdict and judgment for the plaintiff. It is contended that this judgment is final, and that it must restrain the court from investigating and deciding the merits of the case now before them, on the ground, that when a court of law has competent jurisdiction, and can give full relief, its decision is final. Without attempting to controvert this principle, I will observe that it does not and can not apply to this case, because the parties are different — the subject matter is entirely different, and the court that rendered the judgment had no jurisdiction of the case now presented, nor had they power to grant the relief prayed for in this bill. The bill presents a contract for the sale of real estate, involving the rights of an assignee, and the various questions growing out of a non-performance on the day stipulated, and it prays for the specific execution of the contract. To claim for the court that rendered the judgment a power to hear and decide these matters, and to grant the relief prayed for, would be neither more nor less than to convert it into a court of chancery, and vest it *with all the powers that distinguish such a court from a court of common law.

1. The parties are not the same. This bill is filed exclusively for the benefit of Curtis. The suit at law was against Wilkins alone ; Curtis was not a party, and therefore was not and could not have been heard, nor was it in his power to compel Wilkins to defend the suit. It is true that courts of law will protect the rights of assignees- as far as their forms of proceeding will permit, but these fall far short of what was necessary for the security of this assignee, had his claim been before the court. To conclude a person by a decision at law, he ought to have a day in court, and an opportunity of being heard. As to the complainant, Curtis, this has not been the case ; he is now heard for the first time, and for the first time his claims are presented for examination. By the rules of common law, a record can not be received as evidence, unless it be between the same parties, and involve the same point. Hence the record of a conviction for an assault and battery can ’ not be given in evidence in an action for damages against the same defendant for the same assault and battery.

2. The subject matter of the suits is not the same, nor is the object the same. The suit at law, we have seen, was an action of assumpist, founded on a sale of goods and sheep, and the object was to recover the value of those goods and sheep. The subject matter of the bill is a contract for the conveyance of real estate, and the object of it is a specific performance of that contract. I am aware that the sheep had been delivered as a payment on the contract, but that circumstance can not affect the case. We have seen that the contract had neither been forfeited nor abandoned by Wilkins; that it was not the ground of the action, nor necessarily nor directly before the court; nor was there anything in the record having a perceptible allusion to it. But the bill in chancery is founded directly on the contract. It brings before the court every circumstance connected with it, and the right of the complainant to enforce it. In the one case, the court decided on the right of Cisna to recover from Wilkins the value of certain sheep delivered on a contract; in the other, they are called upon to decide, whether Curtis is not entitled to the specific performance of *that contract. The subject matter, and the object of the first suit, was within the jurisdiction of the court that decided it; but neither the subject matter, nor the object of the present suit, was within their jurisdiction, nor could they have granted the relief here prayed for.

The fact that the representatives of Cisna have recovered a judgment for a sum of money, does not destroy the power of a court of chancery to investigate the equity of that judgment. This may be done without calling in question its correctness, in reference to the premises on which it was rendered: It frequently happens that such judgments are obtained because the only ground on which they could be resisted is not within the reach of a court of law. Whatever mighthave been theground on which the judgment in favor of Cisna was had, it would appear to be sufficient to sustain the jurisdiction of this court, and the right of the plaintiff to the relief he seeks, that he has made and supported a case that entitles him to a decree for a specific parformance, and that that decree can not be rendered without enjoining the judgment at law.. It might be inferred from the arguments of counsel, that it was considered by the court that rendered the judgment that the tender of a deed was a condition precedent; that Wilkins, having failed to tender on the 1st of September, could not avail himself of a subsequent tender in a court of law. If this were the case, and there appears to be no other ground on which a recovery on such facts as are now before us could have been had, it must put the question at rest, as it presupposes a want of power in the court that rendered the judgment to grant the defendant that relief which a court of equity is in the daily habit oí granting, nor can it affect the question to concede, that the court restricted their own powers unnecessarily. If, as a court of law, they held the defendant, Wilkins, strictly to a tender on the day named in the contract, it must have been from an actual or supposed want of that power which this court clearly possesses; and in either case, the merits of this complainant have not been heard or decided. It is a question that has been much litigated, how far'a' court of chancery can relieve a person against the consequences of an omission to perform his contract on the day stipulated. It is not therefore surprising, that a court of law, viewing these covenants as it is understood *they did, should have decided against hearing the only defense, on which a recovery could be resisted. The restriction imposed by that court, on its own jurisdistion, has compelled a resort to chancery, and it does not become us to say they have erred in deciding the limits of their own power.

It is admitted that the merits of a judgment can never be overhauled, in an original action, either at law or in equity. Such judgments are conclusive till reversed, or set aside, by a competent revising power; and I wish'it distinctly understood, that no attempt is made to sustain this bill on the ground of supposed error in the court of law. It is to be taken for granted that that court decided correctly, and that we, with the same case, and exercising the same extent of power, would have decided in the same way.

Disclaiming all right to examine the correctness of the judgment at law, the ground upon which I would sustain this bill is, that the relief it prays for could not be granted by the court at law, and that in consequence of rejecting the evidence, and with it the defense of Wilkins, on the supposition of a want of jurisdiction to hear and decide it, a judgment has been obtained against him, which, in equity and good conscience, ought not to be enforced. Yiewed in this light, the case seems to be stripped of'all difficulty, and to be placed on the ground on which chancery usually relieves against judgments at law. The case of Moses and Macferlan went further than is necessary, to support this bill. There an action at law was sustained, to recover back a sum of money, paid on the judgment of an inferior court, because that court had rejected the defense set up as not being within their jurisdiction. Here the same ground exists, and in addition to that circumstance the whole object of the bill is without the jurisdiction of a court of law, and no part of the case could have been examined by them with a reference to the decision now prayed for.

Inasmuch, then, as the parties, the subject matter, and the object of the suits are different; as the one now before us calls for the exercise of powers not possessed by a court of law, and as Curtis is an assignee, and was not a party to a former suit, I must believe, that the judgment is not a bar to the present suit, and that the plaintiff is entitled to the relief he prays for.


source: Caselaw Access Project

author:
By the Court :
      Judge Burnet's

license: Public Domain

text:
    *Hunter v. Goudy and others.

      Relief in Equity.

    Contracts made in good faith can not be rescinded in equity where both parties were mistaken as to value.
    This case came up from Greene county. The object of the bill was to obtain relief against a judgment at law on certain sealed notes made in 1816.
    The bill charged that on the 2d of May, 1816, J. Hunter agreed to purchase of Ekellis Willhite five lots in the town of Pittsburg, in the then territory of Indiana. That Willhite represented that he, with David Hillis and John Minor, were proprietors of the town, which was represented to be in a flourishing condition, and likely to become a seat of justice. That for the purchase money, he gave five notes payable in September following, for $355; three made payable to Ekellis Willhite, and two to his son, John H, Willhite. At the sanie time he received Ekellis Willhite five title bonds in the following terms:
    “We, Ekellis Willhite, John Minor, and David Hillis, obligate ourselves and our heirs, to deed to John Hunter one in-lot in the town of Pittsburg', Indiana Territory, as known on the plan of said town, as of record, by the No. 47, for lot aforesaid; for the performance of which obligation we jointly and severally bind ourselves under the penal sum of $2,000, current money of the United States. Given under our hands and seals, this 2d day of May, 1816.
    “Ekellis Willhite, [Seal.]
    John Minor, [Seal.]
    David Hillis, [Seal.]”
    This contract was executed for all the parties by Willhite, who represented that he was authorized to do so by Minor and Hillis.
    The bill further charges that Willhite’s representations in relation to the town were false. That he had no power from Minor and Hillis to sell or to, bind them in a bond; that the land on which the town was laid out was not secured, being only entered and one payment made to the government; that Thomas Hunter was not an original party to the contract, but executed the notes as security, after they became due, without any consideration; that after the notes became due they were assigned for a trifling consideration, and came to the hands of the Goudys by assignment, *dated in February,11818, by whom judgment had been obtained against Thomas Goudy alone for the full amount of the notes. The bill prays an injunction and a rescission of the contract.
    The answers admit the contracts, assignments, and judgment, as stated in the bill; but they deny the allegations of fraud and misrepresentation. Willhite asserts that Minor and Hillis were equally interested with him, and that he had power from them to sell and execute bonds; that they had a title to the lands which had not been forfeited, but was now secure; that John Hunter saw the town before he purchased, and that no misrepresentations were made.
    The testimony on the part of the complainants proves that the town of Pittsburg is entirely abandoned as a town; that Willhite has inclosed the whole site as a farm, and has it under cultivation. It is also proved that Willhite had made but -one payment on the land in 1816. But that the whole was paid before the time of hearing this cause, and Willhite entitled to a final certificate.
    On the part of the defendants, it was proved that Minor and Hillis were understood to be part proprietors of the town, and one witness testifies that he understood from them that they had authorized Willhite to sell lots. It was also proved that Minor and Hillis were men in good circumstances, sufficient to be responsible for the title to the land. And it was in proof that Hunter expressed himself well pleased with the bargain.
    A deed for the lots from Willhite, Minor, and Hillis, duly executed and acknowledged, dated 12th March, 1823, was made an exhibit in the case.
    Collet, for complainant; Alexander, for defendant.
   By the Court :

The misrepresentation charged in the bill is not made out in proof, although it is plain that the complainants have made a hard and losing bargin. The lots appear to have been purchased upon speculation under the impression that a town would grow up and property be valuable. The purchaser was on the ground and could judge for himself. He seems to have had the same opportunity to form a correct opinion that was possessed by the other party. A court *of equity never interferes to relieve against a contract, made in good faith, where both parties are mistaken as to the value. Had any circumstance given a great and sudden rise to lots in this town, the proprietors could not have asked equity to give them a new bargain against Hunter by increasing the price he was to pay. It was an equal risk, and equity can not interpose.

By procuring Thomas Hunter to execute the notes as security after they became due, John Hunter then affirmed the contract, and acknowledged its continued obligation, although not performed by the other party making a conveyance. To make the state of the title a ground for rescinding the contract, the purchasers should have tendered payment of the purchase money and demanded a title ; or if the tender was not necessary in this case, he should have claimed his deed, or have taken some.steps avowing an intention to give up the bargain.' He has not shown that he was ignorant of the state of the title when he purchased, and we are not to presume it.

Judge Burnet's

dissenting opinion :

I will state, as concisely as practicable, the reasons which have induced me to dissent from the opinion of the court in this case.

1. The notes, or sealed bills, having been assigned long after they were due, are subject to the same equity in the hands of the assignee, as if they had remained in the hands of the original payee.

2. From the terms of the contract, the delivery of the deed, and the payment of the money, were, to say the least, simultaneous acts, and the vendor had no right to demand the money till he had offered the deed.

3. There was a suppression of the truth by Willhite.

4. There was also a suggestion of falsehood.

5. The disparity between the value of the lots and the price to be paid is so enormous that it would, under the circumstances of the case, be inequitable to hold the purchaser to his bargain.

6. The object of the purchase has failed in consequence of tho improper conduct of the vendor.

7. There has been gross laches on the part of Willhite. He has trifled with his contract till the cireumstapces of *the parties and the value of the property are materially changed.

1. It is unnecessary to discuss the first ground, as the fact appears from the bill and answer, and the legal consequence is not denied.

2. By the tenor of the bonds, Hunter was entitled to a deed on demand. The notes were payable at a future day. ’ It must, therefore, have been the understanding of the parties that the conveyance was to precede the payment of the money, or at least to accompany it; and if the whole contract had been embraced in one instrument, the conveyance would have been a condition precedent, and the tender of a deed must have preceded the commencement of a suit. The circumstances that obligations were given for the purchase money, distinct from the title bonds, ought not, in a court of equity, to affect the construction of the contract, which should be considered as an entire transaction, in order to give effect to the manifest intention of the parties. There is nothing disclosed in the case from which an inference can be drawn that Hunter intended to rely on the faith of Willhite, or to part from his money before he received his title. In latter years courts of law, as well as courts of equity, have strongly inclined to consider the stipulations of contracts as dependent, and when a fair interpretation of the whole transaction would warrant it, they have so declared them. The principle is both just and equitable. While its tendency is to secure both parties, it does injustice to neither. Men may contract as they will; they may give credit at pleasure, but here no such-intention appears. The situation of the property, at the time of the contract, was such that Hunter could not safely have parted with his money. Only a small part of the purchase money had been paid to government, and by the terms of their sale the entire tract might have been forfeited for the non-payment of the residue. It was prudent, therefore, on his part to make his contract so as to guard against that danger. In the case of Hutchinson v. McNutt, 1 Ohio, 14, this doctrine was recognized. •

3. It was the duty of Willhite to communicate to Hunter the real situation of the. title, and the time when it would be in his power to execute the deed. But it is not pretended by the defendants that this information was given, and *the only inference that can be drawn from the bill, answer, and exhibits is, that the deed was expected when the notes became due, and that Hunter had no reason to doubt of its being then executed. Every person, when he enters into a contract, has an object in view, to attain which punctuality is necessary; if that be wanting, his arrangements, predicated on the contract, may be frustrated. This applies to every contract, and imposes it as a duty on a vendor to disclose the nature of his title. Such a disclosure was not made in this case, and the consequences of suppressing the truth are very apparent. Had the vendor been informed that the purchase money had not been paid to'government; that the land was subject to be forfeited, and that the title would not be perfected for more than six years, he might have made his calculations accordingly, and would most certainly have declined the contract. We find, on the part of#the defendants, a disposition, even at this time, to cover the gross negligence which has occurred in the completion of the title. This appears from the silence of the answers on this point, and the caution manifested in taking the deposition of the register of the land office. No question was proposed to him tending to disclose the time of paying the money, or of assigning the certificate to Willhite, nor was he required to annex to his deposition copies of the receipt and assignment filed in his office, or of the final certificate issued thereon, although he was required partially to testify of their contents.

4. Willhite affirmed that Minor and Hillis were joint proprietors in the town, and that he was legally empowered by them to sell and to affix their names and seals to the title bonds, and although this authority is expressly denied in the bill, no power of attorney is produced or proved. An attempt, however, is made to remedy this defect of power, by procuring them to join in executing a deed nearly seven years after the vendee had a right to demand his title. Although the defendant, Willhite, attempted to bind his co-proprietors, and to render them liable to an action, should there be a failure of title; yet it appears they were not to participate in the fruits of the contract, as their names were erased from the notes after they were drawn, by which three of them were made payable to Willhite himself, *and the other two to his son. This circumstance shows, that Willhite was acting for his own individual benefit. If it be asked why Hillis and Minor joined in the deed, the answer is at hand. Hillis had previously assigned all his interest in the land to Wiilhite — Minor sets up no claim to any part of it — the patent had just been procured in the name of Willhite — - the title was perfect — they run no risk, therefore, by joining in the deed. They appear to be friends of Willhite, and disposed to aid him as far as it can be done without risk or loss to themselves; but I discover no admission of a liability on their part, or any disposition to interfere till Willhite had possessed himself of the entire interest and title in the land, by some arrangement, not disclosed, with his co-proprietors and the assignee of the notes. Then ¿ve find their signature, to the deed as mere matter of form. I use this expression because they had no interest in the land, either equitable or legal. Had this arrangement been made in time, it would not have rested with Hunter to object; he would have had the benefit of his contract, and could not have complained; but as the defects of the title were not disclosed at the tinge of the contract, nor remedied within any reasonable time thereafter, it has operated as a fraud on Hunter, which ought to release him from the obligation of the contract.

5. The great disparity between the value of the lots, and the sum stipulated to be paid, is also a circumstance worthy of notice. I am aware that this consideration, of itself, has been held not suffieient to set aside a contract, though it might induce a chancellor to refuse a decree for a specific performance; but when this disparity is connected with the other facts of the case, it will be entitled to great weight. Whatever might have heen the supposed value of the lots at the time of the contract, in the estimation of a person ignorant of the defect of title, or whatever might have been the real value at that time, if the vendor had been possessed of a legal title, in which the community could have confided, it is very apparent that at the time the title was perfected, and Willhite was enabled to fulfill his contract, they were of no more value than an equal quantity of wild land of the same quality, in any part of the neighborhood. As this state of things is to be ascribed to the failure and ^abandonment of the town, which has resulted from the conduct of Willhite, it is proper to consider the present value of the lots as the consideration of the notes. If this be correct, the court requires Hunter to receive a property worth four or five dollars, and to pay for it a sum exceeding five hundred dollars. It was not in the power of Willhite to perform his contract till the prospect of a town was lost sight of, and the lots reduced, in the public estimation, to their present value; it is, therefore, just to consider that value as the consideration to whatever cause its diminution may be ascribed; for until the title was perfected, the purchaser could not safely improve or dispose of the property, or apply it to any valuable use. Under such circumstances, to compel him to pay at the rate of a hundred for one, seems to be inconsistent with equity, and the common dictates of justice. The disparity is so enormous as to shock the mind, and impress it at once with a conviction of fraud.

6. The object which might have induced Hunter to make the purchase has wholly failed, and this is to be attributed to .the conduct of Willhite, in neglecting to perfect his title, and in converting the site of the town into a farm. The former circumstance would create such doubt and suspicion, as would deter adventurers from risking their money, by purchasing and improving in the town, and the latter was a virtual withdrawal of the lots from the market. It must have diverted the attention of the public from the place, and they must have ceased to consider it as a town. This conduct, having removed every inducement to the purchase and improvement of lots, until after the season for establishing a town had entirely passed by, has rendered it impossible for Hunter to use the lots for the purpose intended.- His object, therefore, has been lost. The consideration moving him to the purchase has failed, and that failure appears, in no degree, to be ascribable to himself. The proprietors, having laid out their town, and induced the complainant to purchase, were under a moral obligation to use reasonable diligence to advance its prosperity. Purchasers would naturally rely, and had a right to rely on such efforts, and the withholding of them, was a breach of an implied undertaking, injurious to those who might have previously purchased. Butin this case, Willhite is not only ^chargeable with an omission of duty, but with acts directly calculated to destroy the town, or rather to prevent it from coming into existence, for it does not appear that it ever has existed, otherwise than on paper. It appears, from the testimony, that Hunter immediately after his purchase, engaged men to improve his lots; that he intended to settle on them, and commence a business that could be carried on with advantage only in a town, but discovering that the title was doubtful, and the fate of the town thereby uncertain, and that no efforts were making to advance it, he could not proceed with safety, and the event has proved that his apprehensions were well founded.

7. Willhite has been guilty of gross laches, as will appear by reference to dates. The contract was made in May, 1816. The notes became payable in September following, when, if not before, Willhite was bound to convey the lots. The payment to government for the quarter section, on which the lots are situate, was not made until October, 1821. The last payment to government became due in August, 1819. In August, 1820, the land became liable to forfeiture, and was saved by the act of Congress', 1821. The deed to Hunter was not executed until March, 1823, more than six years after the time it should have been made, by the terms of the contract. These laches have not been acquiesced in, nor are they satisfactorily accounted for. In the meantime, the situation of the parties, and of the property, is materially changed. The contemplated town is converted into a farm. The purchaser, unable to procure a title, has abandoned the object, and has settled himself in the State of' Ohio. The value of the lots has been reduced to the legal price of government land, and when separated from the farm of Willhite, of which they seem to form a part, are in reality of no value. Under such circumstances, it appears to me that the complainant ought to be relieved from the contract.

The facts disclosed in the case do not appear to establish the grounds on which the opinion of the court is predicated. The lots were purchased by complainant for his own use. It was his intention to improve and settle on them, not to speculate, by sell-i ng them at an advanced price. Nor do I ^discover anything in the pleadings, or testimony, that will justify the inference that Hunter had the same opportunity to form a correct opinion that was possessed by the other party.

Willhite knew the standing of his title — the money due on the land to the government, and his ability and arrangements to complete the payment. He does not pretend that he disclosed these facts to Hunter, nor is there any evidence to show that Hunter had reason to suspect that the purchase money had not been paid to government, or that Willhite’s title was not complete.

If this contract had been made in good faith, both parties being ignorant of the value, the case would have presented itself to my mind in a different aspect, but it appears to me, that on the part of Willhite, the contract was made, mala fide, and that the depreciation of value has arisen from the want of title, not disclosed, but since discovered, and from the conduct of Willhite himself, subsequent to the contract, of which Hunter could have no knowledge. Equity does not usually require anything to be done pro forma, when the doing of it would be vain and useless. The complainant had discovered that Willhite had no title, and that he could not execute a deed. It was altogether uncertain whether he would ever acquire a title. It was therefore natural for Hunter to draw the conclusion, that in the estimation of both parties the contract was at an end. Under such circumstances, to require a formal tender of the purchase money, or a demand of a deed, to put the vendor in the wrong, seems to be, to say the least of it, Kerens in cortice.

It is true that the complain ant has not expressly proved a negative, as to his want of knowledge of the state of the title, but he has solemnly averred it under oath in his bill, and the defendants have not attempted to deny it in their answers, or to disprove it by testimony. I can not, therefore, concur in the opinion expressed by the court.


author: Judge Burnet :

text:
    *Green Arnold v. Fuller’s Heirs.

      Sci.fa. — Supersedeas—Levy—Satisfaction.
    Levy of execution upon real estate is not vacated by writ of error and supersedeas.
    Quashing vendi. and setting aside valuation does not affect a levy.
    When fi. fa. is returned levied upon land, another fi.fa., issued before the first levy is disposed of, is void.
    Distinction between void and voidable1

      Sci.fa. to vacate satisfaction improperly entered on judgment or execution.
    This was a scire facias, brought before the supreme court in Gallia county, at the May term, 1824, by appeal from the common pleas. The facts of the case were these: At the August term, 1813, Samuel Green Arnold, obtained judgment against Sylvester Fuller, for $468.95 damages, and cost of suit. On the 8th July, 1814, an execution issued to David Ridgeway, sheriff of Gallia, which was returned no goods. On the 28th October, 1814, an alias ft. fa. et lev. fa. issued to the same sheriff, who returned that he had levied on one hundred acres of land, being lot No. 730, of town one, range fifteen, Ohio Company’s purchase ; and that further proceedings were stayed by writ of error, afterward abated by the death of Fuller; the1 sheriff, Ridgeway, went out of office, and in February, 1818, a vendi. expo, issued to his successor, which was returned, property not sold for want of bidders. On motion of the defendant’s counsel, this writ was quashed and the appraisement of the property set aside by the court. On the 28th November, 1819, a new execution issued to J. Holcomb, then sheriff of Gallia county, on which he returned that he had levied on a hundred acre lot of land, No. 730, town one, range fifteen, Ohio Company’s purchase, and had sold the same to David Putnam, plaintiff’s attorney, 'for $920. The receipt of the said Putnam was also returned with the following words: “ $628. April 13, 1819. Received of Samuel R. Holcomb, by land bid off on this execution, six hundred and twenty-eight dollars, for debt and interest on this execution.”
    The defendant, Fuller, died intestate, having t previously conveyed the land to his son, one of the present defendants. TMe plaintiff avers, in his scire facias, that by reason of the premises, the sale was inoperative and void, and that his judgment still remains unsatisfied. The defendants are called upon to show cause why the proceedings, since the death of the defendant, Sylvester Fuller, should not be set aside, and the judgment satisfied of the lands and real estate of the said Fuller, deceased, and particularly of the said lot, No. 730.
    The defendants demurred, and the plaintiff joined in demurrer.
    *KiNa, in support of the demurrer; .
    1. A writ of sci. fa. does not lie in a case like the present, and to effect the objects prayed for.
    A sci. fa. is a judicial writ founded on some matter of record, as a recognizance at common law, or by statute, judgment, letters patent, and the like, to enforce execution of them, or to vacate and set them aside. F. N. B. 267; 6 Bac. 102; 2 Saund. 70, note 4.
    As it respects the first class, recognizances and judgments, its object is to enforce them; and in respect to the second class, letters patent, it is to vacate or set them aside. It is believed that in the English books, no case can be found where a sci. fa. has been permitted, to correct a train of irregularities committed by the party himself who sues the writ.
    The eases from Connecticut, reported in Boot & Day, are very questionable authority at best. They stand upon particular circumstances, and ought not to be taken as a rule, except in cases similarly situate.
    It is urged that the errors in this case might have been corrected on motion, and the same may be done by sci. fa.

    If this were admitted, which it is not, it would not affect the argument. After the length of time that has elapsed between the inception and consummation of these proceedings; and the period from their consummation to the suing out of this writ, the court would not interfere on motion to correct irregularities, but would leave the party to abide the consequence of his own negligence.
    2. The original judgment, in this ease, was rendered in a personal action, and at common law, no writ of sci. fa, lay to revive a judgment in a personal action, if a year and a day elapsed without suing execution. The plaintiff was driven to his original action of debt upon such judgment. 2 Inst. 469; 2 Salk. 600; 6 Bac. 104.
    In personal actions, this writ was given by the statute, 2 West; 13 Ed. 1; which is not in force in this state. If we have a common law for framing judicial writs, it must be the same that existed in England before it was modified by statute, and we have no statute giving a writ of sci. fa. in a case like the present.
    3. If in such case a writ of sci. fa. might issue under our laws, this writ is not properly conceived.
    *It is issued jointly against the purchaser, or terre tenant, and the heirs of the judgment debtor. It can not issue against the terre tenant until the heir is summoned, for he may show payment or a release. It can not issue against the terre tenant and heir until the personal representatives are summoned, or nihil returned : for they may show payment or a release. 6 Bac. 114; 2 Todd. Pr. 1032. This writ is, therefore, irregular.
    The sci. fa. prays to set aside the alias ft. fa. levy, appraisement, and sale, and the entry of satisfaction, and calls upon the defendants to show cause why a vendi. should not issue on the levy made in the lifetime of Fuller. This can not be done.
    Upon the allowance of the writ of error, a supersedeas direct issued, by which the levy was removed. The writ commands the person to whom it is addressed to forbear doing the act superseded, or if it be already done, to annul it as far as possible. F. N. B. 236; 6 Bac. 414.
    If a writ of hab. fac. pos. issue irregularly and be executed, a supersedeas restores the possession. If goods be taken on a ft. fa. and before sale the debtor delivers to the sheriff a supersedeas ujion writ of error, the goods are to be restored. If an officer detain a person in custody arrested upon a ca. sa. or exigent, after writ of supersedeas delivered to him, it is a trespass. 1 Vent. 30; Cro. Jas. 379; 1 Roll. 241.
    Upon these principles the levy on the ft. fa. was vacated, upon the service of the supersedeas, in this case. No new execution can issue. The party’s remedy is by action on the bond in error, or upon the judgment.
    Douglass, on the same side,
    maintained:
    That the sale upon the last ft. fa. was good. Where a judgment creates a lien, an execution issued after the defendant’s death is not void, and if not objected to at the return, can never after be questioned. 13 Johns. 550; 16 Johns. 576.
    A sci. fa. against heirs is not absolutely necessary; a good title may vest in the purchaser without it. 4 Dall. 115; 2 Bin. 227 ; 8 Johns. 361.
    Our statute under which the proceedings were had, did not require a sci. fa. against heirs, or terre tenant. This was first required by the statues of 1822.
    *Grainger, for the plaintiff:
    By the writs of error and supersedeas the power of the execution and judgment was suspended until the writ of error should be determined. But the levy was not thereby removed or affected. It remained in statu quo, as the writ of error found it. 5 Com. Dig. 294.
    IJpon the death of the defendant, Fuller, and consequent abatement of the writ of error, the supersedeas was terminated. The case stood as if no writ of error had been issued. But, by the death, an interest in the property levied on became vested in the heir.
    The return of nulla bona on the original ft. fa. negatives the suggestion that there might be personal property which might render it proper to proceed against the personal representative. Besides the levy on the land remains in force, which being pro tanto a satisfaction, the personal representative could not be proceeded against.
    The effect of a sci. fa. is not to obtain a new judgment; it only reanimates that, the vital power of which was suspended. It takes up the proceedings as they stood at the instant of the death, when the suspension took place, and gives the remedy against the property of the deceased, which, at the time, was liable to be affected by the judgment in whosever hands it may be. 2 Seld. 188.
    Here this particular property, and this only, was liable to the judgment; -at all events, no other property could be touched until this was disposed of, and proved insufficient. And the interest in the property being by the death vested in the heir, or terre tenant, none other need or could be made parties to the sci. fa.

    It is said in 2 Saund. 72, “that a sci. fa. must issue against the personal representative, and nihil be returned before it can go against the heir or terre tenant. Carthew is referred to as authority, whore it is only given as argument of counsel; and as many authorities are cited against as for it. If in England the law is so settled, it would seem but matter of form. For where it is intended to go against the heir, or terre tenant, the practice is to put the sci. fa. into *the hands of the officer fifteen days before the return, with directions to return nihil, which is done without making any search whatever.
    But in this case such proceedings must be unnecessary. Until the levy on the land is disposed of, no proceeding can be had except against the heir, or terre tenant. The personal representative has nothing to do with the matter.
    The proceedings subsequent to the death of Fuller, though irregular and void as against all parties, yet having resulted in an entry of satisfaction, upon execution, must be removed before the plaintiff can proceed regularly upon his judgment. For this the writ of sci. fa. is a proper process. It is in the nature of a bill in equity, and the court will go into any inquiry calculated to elucidate the right and justice of the case. 6 Bac. 120.
    In Langdon v. Langdon, 1 Root, 453, a sci. fa. issued for the very purpose of removing out of the way irregular proceedings upon execution, in consequence of which it was indorsed satisfied. In 4 Day, 222, there is also a case fully in point.
    The case of Jackson v. Robins, 16 Johns. 576, was cited by one of the counsel to show that the sale under the last fl. fa. was good. But it by no means sustains that position. It decides that certain irregularities in a sheriff’s sale, which rendered the sale voidable, but not void, should not be inquired into on ejectment against the purchaser thirty years after the sale. Here the sale is recent, and the process upon which it was made not merely irregular, but void; both because of the existing levy, and, if that was out of the way, because of the death of the defendant.
    It is well settled, that where there is a single defendant, who dies after judgment and before execution, there must be a sci. fa. before execution can issue. 2 Saund. 6, n. 1; 2 Ld. Raym. 768; 2 Seld. 190; 4 Day, 226.

      The late Ebenezer Grainger, of Zanesville. He died in September, 1822; but he bad been retained by the plaintiff, and the argument, from which this abstract is made, was found, in an unfinished state, among his papers. It is, probably, all that the judicial history of the state can preserve of one of her .most valuable and soundest lawyers.

   Opinion of the court, by

Judge Burnet :

Several questions are presented in this case: 1. Did the writ ■of error and supersedeas avoid and vacate the execution and levy, so as to render it a nullity, or did it merely stay the proceedings of the sheriff. 2. If the latter, did the order of the court, quashing the vend. expo, and setting aside *the appraisement, n-ffect the lev. fa. and the levy made thereon. 3. If the supersedeas merely stayed the proceedings, was the execution of November 28, 1818, and the sale made thereon, merely irregular, or altogether void, so as to entitle the plaintiff to the relief prayed for. 4. Can a scire facias be sustained in a ease like the present.

As to the first point, no authority has been cited to show the effect of a supersedeas on an execution levied on real estate. It is said in the books, that the object of a supersedeas is to stay proceedings till the errors are disposed of. In the Bishop of Ossory’s case, Cro. Jas. 534, it was resolved by all the court, that the writ of error was a supersedeas till the error was examined, affirmed, or reversed. In Badger v. Lloyd, 3 Salk. 145, it was said by Holt, Chief Justice, that although a writ of error forecloses the court, and ties up their hands, yet it doth not alter the right of the parties.

If a writ of error be allowed on the return day of a ca. sa., the sheriff may, notwithstanding, return the writ non est, the plaintiff shall have the benefit of the return, and may afterward proceed against the bail. Parkins v. Wilson, 2 Ld. Raym. 1256. This could not be the case if the allowance rendered the execution a nullity. The same inference may be drawn from the reason given for quashing the writ in the case of Smith v. Nicholson, 2 Stra. 1186. A ca. sa. had been taken out on the 3d of December, for the purpose of proceeding against bail. On the next day a writ of error was allowed, after which the ca. sa. was returned non est inventus. After the writ of error was at an end, the plaintiff proceeded by scire facias against the bail. On motion the whole proceedings were set aside, because the return of non est inventus was obtained after notice of the writ of error, which, in its nature, stops all proceedings. The sheriff could not so much as look after the defendant, in order to ground such a return thereon. The reason is apparent; as the rule required the ca. sa. to remain four days in the sheriff’s office before he was authorized to return a non est inventus, for the purpose of fixing the bail, and as the writ of error was allowed the next day after the ca. sa. issued, the operation of the ca. sa. was suspended before it was ripe for the return, and while something remained to *be done, which the allowance prohibited ; but in the preceding case, the four days having elapsed before the allowance, the return was held to be good, and the bail was fixed. This could not have been the case if the writ of error had affected the ca. sa. so as to render void that which had been done before the allowance. In the one case, the execution being ripe for a return, before the supersedeas, the return was sustained, though made after the supersedeas. In the other case, the execution having been superseded before it was ripe for a return, was considered a nullity. The principle on which these cases were decided being applied to the case in hand, must lead to this conclusion : that as the lev. fa. had been levied, and was ready to be returned before the writ of error, the return was well made, and after the writ of error was at an end, the plaintiff was entitled to the benefit of it; but if the writ qf error had been allowed after the execution had issued, but before the levy, the proceedings would have been void. We find many cases in which executions have been set aside for having issued after the allowance of writs of error; but where the allowance has been after the issuing of the execution, the operation has been to stay further proceedings, leaving the matter in statu quo. The general rule seems to be, that the writ of error operates as a supersedeas from the time of the allowance, and will therefore avoid an after execution, or levy; but on the principle here contended for, it will have a retrospective effect, by operating on a writ and levy anterior to the allowance. It would seem as reasonable that it should overreach an execution on which a part of the money had been levied and paid over before the allowance, as that it should render void a levy made before the allowance. .Neither the necessity of the case, nor the object of the writ, requires such an affect. It does not follow from the allowance that the judgment will be reversed; when, therefore, a levy is made on land, which neither changes the possession, nor restricts the occupant in the use of it, his purpose is gained by a stay of proceedings till the judgment be reversed or affirmed.

It is decided in Withers v. Henley, Cro. Jas. 379; cited by defendant, that a supersedeas is as good a cause to discharge a prisoner taken on a ca. sa. as the first process was to arrest him. This, however, is from *the necessity of the case, for on no other principle can the party have the benefit of his writ of error. While that is pending the plaintiff ought not to hold a satisfaction of his judgment by detaining the defendant in custody. But the case of Sare v. Shelton, 2 Roll. Ab. 491, where it was holden, that, if before sale of goods seized under ft. fa., the defendant deliver a writ of supersedeas, he shall have the goods again, because the property is not altered by the seizure, has been declared not to be law. 4 Bac., title Supersedeas, pl. 6, 7; Yelv. 6. In Charter v. Peter, Cro. Eliz. 597, the defendant’s goods had been taken on .a ft. fa., and before sale a writ of error and supersedeas were taken. The sheriff returned the seizure, also that the goods remained in his hands for want of bidders, and that a supersedeas was awarded. All the court held, notwithstanding the supersedeas, in regard it came not to the sheriff until he had begun to make execution, that a vend. expo, should be awarded to perfect it. In Regina v. Nash, 2 Ld. Raym. 990, it was decided, that if goods are once levied, a certiorari, to remove the conviction, will not suspend their sale. In Clerk v. Withers, 1 Salk. 323, it was ruled that the sheriff might proceed to sell, after the plaintiff’s death, and that execution being an entire thing, can not be superseded after it is begun. But admitting the case of Sare v. Shelton to be good law, it is by no means conclusive as to this case, for when goods and chattels are taken, the defendant loses the possession, and the property may be lost or destroyed during the pendency of the writ of error; but on a lev. fa. no such privation tabes place. The possession and use of the property remain with the defendant; there is, therefore, no necessity for setting aside the writ and levy.

The second question does not admit of a doubt. The motion was confined to the vend. expo, and the appraisement, and the order of the court extended no further. The levy was not comprehended in the motion, and can not be affected by the order. • It is the constant practice to set aside valuations of property, without disturbing the levy; and it never has been supposed that such an order rendered it necessary to sue out a new writ, or to obtain a new levy.

*The next inquiry is, whether the lev. fa. of November 25, 1818, and the sale made thereon, were merely irregular or altogether void. In the case of Clerk v. Withers, before cited, it was resolved that the plaintiff’s death did not abate the execution; that an execution is an entire thing, and can not be superseded after it is begun; that by the seizure the property was out of the defendant, and in abeyance, and that no further proceedings could be had against him, because the plaintiff had made his election. In Ladd v. Blunt, 4 Mass. 402, it was decided that after the sheriff has seized goods sufficient to satisfy the judgment, the defendant is. discharged, though the sheriff may have wasted the goods, squandered the money, or has not returned .the execution.

In 2 Tidd, 937, it is laid down that when the sheriff takes goods upon a ft. fa. to the-amount of the sum directed to be levied, the defendant is discharged, and may plead it, etc. In 1 Seld. 571, it is said there ought not to be two executions at the same timo, but if one proves ineffectual another may be sued out: In the case before us the first execution did not prove ineffectual; a levy was-made and returned, and the property had not been sold when the second execution issued.

In the case of Stoyel v. Cady, 4 Day, 222, a ca. sa. had been executed after the return day had passed.

The defendant, to procure his discharge, paid the money, and then brought an action against the sheriff and recovered, a larger sum than the judgment. The plaintiff, in the original action, paid the money, and after his death his administrators brought a scire facias to set aside the proceedings, and obtained a new execution, on the ground that the ca. sa. had become a perfect nullity before it was served ; that the judgment had been discharged by mistake, and that there had been no real satisfaction. The court sustained the writ, and the plaintiff had judgment. In that case the return day of the ca. sa. being past, it was dead in law before it. was served, and gave no authority to the officer; there had been a lapse of time; the parties were changed, and the plaintiff must have lost his debt without the relief sought for. In the case before the court there was a levy by Ridgeway, in the life of the defendant, not disposed of. After *that levy, and the death of the defendant, a new execution issued against him to Holcomb, by virtue of which there was another levy, a sale, and a return of satisfaction.

It is contended by the defendants that these proceedings are. not void, but only voidable. The distinction between void and voidable is not as distinctly defined as could be wished. It is said that those acts are void which are contrary to -law at the very time of doing them, and no person is bound by such an act; but a thing is only voidable which is done by a person who ought not to have done it. 5 Bac., title Void and Voidable, A, pi. 1. By this-rule all the proceedings subsequent to the death of the defendant were not only irregular but void. The execution directed to Holcomb was illegal at the time it was taken out: 1. Because there was a previous execution and levy, on which no sale had been made. 2. Because the defendant was dead before it was issued. 3. Because his property, in the hands of his representatives, could not be taken without a previous scire facias. Some of the cases cited by defendants’ counsel, to show that these proceedings were merely voidable, are certainly strong; but the death of the defendant, and the change of the sheriff, are circumstances which did not occur in either of them, and are sufficient to show that they do not meet the case before us. Had the sale been made by the same officer who made the first levy, the second writ and levy might, perhaps, have been considered as mere nullities, and the sale referred to the first levy; but such was not the fact. • The sale was by a person who derived no power or authority from that levy, and if it be supported, it must be done on the efficacy of the last process and the proceedings had thereon. To justify this the first levy must be considered as disposed of by the writ of error; and should that be admitted, the death of the defendant having intervened, a scire facias was necessary, and the process should have been against the representatives, and not in the name of the deceased defendant, so that in either case the proceedings must be illegal.

As to the fourth point, the defendants’ counsel urge several objections against proceeding by scire facias. They insist, from the definition of the writ given in 2 Saund. 70, that it is inapplicable to this case, but they seem to forget *tbat there is here a satisfaction of record, which forms the chief difficulty of the plaintiff, and which he seeks to set aside.

The second objection, that a scire facias to revive a judgment was unknown at common law, and was given by a statute not in force in this state, as also the third objection, that no writ of scire facias can issue against the terre tenants until the heir has been summoned in, nor against the heir, till the personal representatives have been called on, are predicated on a mistaken apprehension of the object of the writ in the present case, which is to get rid of the illegal proceedings since the death of Sylvester Fuller, so as to proceed on the levy, legally made, in his lifetime. It is not to revive the judgment, or to lay a foundation for process against any of his representatives. If the land levied on, in the life of the defendant, be not sufficient to satisfy the judgment, the plaintiff must pursue the course pointed out by the statute before he can take out execution for the residue. The great object of this proceeding is to avoid the entry of satisfaction on the record, and the proceedings which have led to it, for the purpose of enabling the plaintiff to pursue his remedy, by commencing at the point where the proceedings stood at the death of the defendant.

This is the relief prayed for by the plaintiff, and we are all of opinion that he is entitled to it.

Demurrer overruled.