Cowles v. Bacon , 21 Conn. 451 ( 1852 )

Storrs, J.

1. The first question presented on this motion is, whether the plaintiff’s testator is to be deemed to have obtained satisfaction of the judgment on which this action is brought, by the levy and set-off of land upon the execution issued on that judgment, if there was an entire failure of title in the defendant to that land, and said testator therefore got nothing by the levy and set-off.

It was anciently an established principle of the common law of England, that an extent upon the land of the defendant, returned and filed of record, is a full satisfaction and end of the suit; and therefore, that the plaintiff is not entitled to any further means of satisfaction, by writ, action or execution. And if the tenant by elegit, were divested of the lands so held under that writ of execution, by one having a title paramount to his own, that is, a better title than the debtor from whom he extended the lands, the rule of law, that the debt was considered satisfied by the extent, remained unchanged and unaffected, by this circumstance; and the creditor could not afterwards resort to any other writ, or have any other remedy for the portion of his debt thus deemed to be satisfied. The reason upon which this principle was adopted, was, that the creditor elects to hold the land for so many years till the debt be satisfied out of the rents and profits, and the judgment-roll shews, that it was satisfied by the elegit. This rule was so manifestly unjust, that in the thirty-second year of the reign of Henry VIII. a statute was enacted, for that reason expressed in its preamble, by which it was provided, that where the creditor is lawfully divested of the land so delivered to him on such extent, he, may have a writ of scire-facias against the defendant; and thereupon, if no sufficient cause, other than the acceptance of said land on the former writ of execution, is shewn, to bar the said suit, a new writ or writs of execution on the judgment, of the like nature and effect as the former, for the residue of the debt unsatisfied by such former execution; and the same provision is re-enacted, in similar terms, by the 8th Geo. 1. c. 25.; under which provisions the plaintiff, on the new writ of execution, has the same privileges as on the issuing of the original elegit; that is, if the plaintiff can have no fruit of it, he may sue out a scire-facias against the debtor’s goods or chattels, or a ca. sa. to take his person in satisfaction of the debt. The courts in England, early after the first of these statutes was passed, decided that the equivalent remedy of debt on judgment would lie, if the creditor thought fit, in lieu of a writ of scire-facias, which action of debt may now be brought on the unsatisfied judgment, at any time, although further writs of execution cannot be issued, without a scire-facias. (See Foster on the writ of Scire-Facias, 52. & seq.)

In this state, the ancient English common law rule has never been adopted but the practice has uniformly been in conformity with the principle, that where there is no real, but only an apparent, satisfaction of the execution issued on a judgment, by reason of a mistaken or fruitless levy on lands, debt on judgment, as well as scire-facias, may be brought to obtain satisfaction. The course of the authorities on this subject is given in the case of Fish v. Sawyer, 11 Conn. R. 545. in which we understand the court to approve and establish that practice, and to decide, that in all cases, debt on judgment lies where an execution is fruitless, by reason of a mistaken or void levy on land.

And we see no just reason for the limitation of this principle for which the defendant contends, by which it should be held not to apply to cases, where, as in the present, the plaintiff’s testator, when he caused his execution to be levied, had notice from the records, or otherwise, that the defendant had executed a conveyance of the land levied on, but erroneously supposed that such conveyance was fraudulently made, and was therefore, as to him, void. Such a mistake constitutes no just reason why the defendant should not pay the unsatisfied balance of the debt. The former neither got, nor did the defendant lose, anything, by this mistaken levy. Is the latter to go quit of his obligation, when it has not been discharged, by any mode known to the law, and therefore remains in full force, merely because the former has acted on a mistaken belief that the land levied on belonged to the defendant, and not to the person to whom he had ostensibly conveyed it? Or, is the former to be thus punished, by a forfeiture of his debt, for the benefit of his debtor, for erroneously supposing, that such conveyance was actually or constructively fraudulent, and as to himself void, and for trying to avoid it? It must, indeed, be some very stubborn rule of law which would be held to produce such an unrighteous result. Nor on this point can the grounds on which the testator formed his opinion, be examined, for the purpose of determining whether he had reasonable cause for it; or whether such opinion was really entertained, or not; because it has no bearing on this question of right and justice between these parties. It may, however, be observed, that our records of deeds often furnish to creditors of the grantors but very imperfect information of the real state of titles. They sometimes disclose the invalidity of them as to creditors, when they are only constructively fraudulent, but of course, they never do, when they are actually so. And the object of recording conveyances, is, only to give notice of them; but their validity depends on other circumstances.

This action is therefore sustainable, notwithstanding this objection.

2. The next question is, whether it was competent for the defendant to shew, that the deed from himself to Mrs. Humphreys was given for the purpose of defrauding his creditors. If, as the plaintiff claims, it was not, the whole defence to the action fails; and therefore, a decision of the questions, afterwards made on the trial, is unnecessary. The evidence offered by the defendant, was introduced, for the purpose of avoiding the effect of the conveyance from the defendant to Mrs. Humphreys, which had been produced by the plaintiff, and to shew, that that conveyance was executed under such circumstances that it was void, as against the plaintiff’s testator; and that the latter, therefore, by virtue of his levy and set-off on his execution, obtained full and legal satisfaction of the judgment declared on; which was the defence relied on, by the defendant. This being the state of the question, as it is thus presented, it should be viewed singly, and independently of the effect of the conduct and representations of the defendant after the levy and set-off, whereby the plaintiff’s testator may have been induced not to rely on those proceedings, but to treat them as ineffectual; which gives rise to a subsequent question in the case, and one to be considered hereafter.

However ungracious it may seem for the defendant thus to set up his own fraud in that conveyance, we are of opinion, that, as this question was presented, he was at liberty to do so, for the purpose stated. There cannot be a doubt, that this evidence conduced to prove, that the judgment was satisfied, and was, therefore, in its nature, relevant, for the purpose for which it was offered. It would, as a general rule, be competent for the defendant to shew, that he had not been, by conveyance or otherwise, divested of the estate, at the time of the levy and set-off, because their effect, in that case, would be to vest that estate in the creditor under the levy, and thus to produce a satisfaction of the judgment, which would constitute a good defence in this action. The question, then, is, whether the circumstance that the conveyance was executed by the defendant, with a fraudulent intention as to his creditors, including the plaintiff’s testator, creates an exception to this rule. The effect of that fraud would be, to make the conveyance voidable, by those creditors, at their election. If the testator chose to avoid it, as he did, by taking the land on his execution, as though the conveyance had not been made, such appropriation would clearly be a satisfaction of his debt, of which the defendant might avail himself, in an action on the judgment. If it were otherwise, he might be repeatedly compelled to pay the same debt. The question arising upon that conveyance, respects only the title to the land. That is a question, not between the levying creditor and the defendant, but between the former and the grantee of the defendant. The former is neither a party nor privy, but a stranger to, the deed of conveyance; nor does he claim under it; and for that reason, he is at liberty to contest it with the defendant’s grantee. The defendant has no interest in that dispute, because if the creditor should not succeed in avoiding the deed, and recovering the land, the title would remain in such grantee, to whom the title has passed by the deed, as between him and the defendant. The attempt of the defendant, therefore, to shew the deed to be fraudulent, if successful, would not defeat, but establish, the creditor’s title to the land, which the defendant should plainly be allowed to do, because if that title is established, the judgment of the creditor is satisfied, and he has no legal or just claim in this action. The plaintiff objects to this proof by the defendant, on the ground that it was a violation of the legal maxim, that no one shall take advantage of his own wrong. That maxim, however, is not to be taken in an abstract, universal sense, and has no application to this question. As applicable to a case where a person undertakes to set up his own fraud, it only means, that he shall not be allowed to acquire, through the medium of his deception, any right or interest against one who may be thus defrauded. Broom’s Legal. Maxims, pp. 209. 215. 217. The object of the rule is, to discourage dishonest practices, by depriving the perpetrator of the benefit of them. But in the present case, the defendant derives no benefit or advantage from shewing the fraud, which he offers to prove; on the contrary, the establishment of it would necessarily deprive himself of the benefit originally contemplated by it, and enure to the benefit of the plaintiff’s testator, the person who was intended to be defrauded, by re-instating him in the condition in which he was, when the fraud was attempted. To the suggestion, that it is unjust in the defendant thus to attempt to defeat this suit, it is sufficient to reply, that this is begging the question; for that depends on whether he succeeds in proving that the plaintiff’s claim is satisfied.

3. The further claim of the plaintiff, that it was not competent for the defendant to support this ground of his defence, by his own testimony, is without foundation. By our recent statute, altering the rule of the common law in regard to the competency of parties as witnesses, and allowing them to testify in civil suits, they are placed, in this respect, on the same ground, and may testify as fully, as disinterested persons. The defendant, therefore, became a witness generally, and, subject to the proper detraction from his credibility growing out of his situation, as being interested, might testify to the facts in question, like other witnesses.

4. We think, that the defendant has no reason to complain of the ruling of the court below, on his claim, that the deed of January 2, 1813, was void, as to the judgment debt declared on, on the ground that it was voluntary and without consideration. Whether the deed was void on that ground, would depend on facts as to the existence of which no evidence was adduced. It was proved, and not denied, that the defendant, when the deed was executed, was solvent; but there was no evidence to shew, whether any part of the debt embraced in the judgment was then due, or what was then the pecuniary condition of the defendant. 1 Swift’s Dig. 278. The claim made on this subject, was, therefore, merely abstract, in its character; and the court was not bound to state the law arising on facts of which there was no proof.

5. The defendant excepts to the charge below, as to the effect of his conduct and representations to the plaintiff’s testator, subsequent to the setting off of the land, by the latter, on his execution. The plaintiff claimed to have proved, that the defendant, (provided it were true, that he made the conveyances, as he claimed, for the purpose of defrauding his creditors,) after the completion of the proceedings on the execution, by a course of conduct and declarations on his part, respecting those conveyances, which were calculated, and intended by him, to induce the plaintiff’s testator to believe, that they were made honestly, and that therefore, the title of the grantees was unimpeachable and valid, had deceived and misled him, and induced him to believe, that those conveyances were in fact of the character they were thus represented to be; and that, under the influence of that belief, he had been induced to give up the rights which he had acquired, by virtue of his levy, and to abandon the land, and prevented from asserting or relying on his title thereto, until he had lost the title acquired under his execution. Those declarations and that conduct are detailed in the motion. There can be no doubt, and indeed it is not questioned, that they were, in their nature, calculated to induce such a belief and course of action, on the part of the testator. The jury were instructed, that if the facts were true, as thus claimed by the plaintiff, the defendant was estopped from claiming that those conveyances were not good. In our opinion, that charge was clearly correct. We cannot conceive of a case, which more directly comes within the well-established and most just and salutary principle, that where one, by his words or actions, intentionally causes another to believe in the existence of a certain state of things, and thereby induces him to act on that belief, so as injuriously to affect his previous position, he is concluded from averring a different state of things as existing at the time. 17 Conn. R. 345. 355. 18 Conn. R. 138. 443. The injustice of allowing the defendant, under the circumstances of the present case, to retract or deny the truth of these representations, by which he induced the testator to believe that the conveyances in question were valid, and to treat them accordingly, is too palpable to require argument.

Our opinion is, that a new trial should not be granted.

In this opinion the other judges concurred.

New trial denied.