Dudley v. Cole

• Court: North Carolina Supreme Court
• Writing for the Court: RUFFIN
• Citation: Dudley v. Cole, 1 Dev. 429, 21 N.C. 429 (N.C. 1836)
• Decision Date: 31 December 1836
• Parties: DAVID W. DUDLEY v. JAMES C. COLE.

1 Dev. & Bat.Eq. 429

21 N.C. 429

DAVID W. DUDLEY

v.JAMES C. COLE.

Supreme Court of North Carolina.

December Term, 1836.

Where the plaintiff in an execution obtained his judgment by fraud,-- there being no debt due him--and fraudulently prevented the defendant having it reversed, in equity he shall have no benefit from a sale under it.

Whether the purchase of a stranger to the judgment would be protected? Qu.

ON the 1st day of June, 1824, William Orme, in the name of John Simmons, to the use of Orme, sued out a warrant against Morris Ward, for the sum of one hundred dollars, due by note; on which judgment was rendered by Daniel Smith, a justice of the peace, on the 5th day of that month, for the sum demanded, and costs. On the 28th day of March, 1825, Orme sued out a fieri facias thereon from another justice of the peace, and caused it to be levied, on the 1st day of June, on a tract of land belonging to Ward, and returned to Jones County Court, and there obtained an order of sale; and on the 12th day of September following, the sheriff exposed the land for sale, and Orme became the purchaser, at one hundred dollars, and took the sheriff's deed. Afterwards William Orme died intestate, leaving one Robert Orme, his heir-at-law; against whom judgments were rendered, and executions issued, in 1830, under which the defendant, Cole, purchased the same land, as the property of Robert Orme, and took the sheriff's deed. Cole thereupon brought an ejectment against Ward, who still continued in possession.

The original bill was brought in 1833, by Ward, in forma pauperis; and alleged, that the judgment against him was fraudulently obtained, and the sale under it fraudulently made; and specially charged the following matters as constituting such fraud.

That the plaintiff did not owe Orme or Simmons any sum secured by note, nor any sum of money whatever; but that Simmons had been indebted to Ward by sundry bonds; of which one was for the sum of one hundred dollars, which had been placed in the hands of one Franks for collection: that Ward and Simmons came to a settlement; on which the former gave to the latter an acquittance against the bond held by Franks, and therein engaged to surrender or cancel it; and that accordingly, by the consent of Ward, and the directions of Simmons, Franks destroyed the bond, before the year 1824: that Orme afterwards came into possession of the plaintiff's receipt to Simmons, and issued the before-mentioned warrant on it, which was served on the first day of June, 1824, by one Lee, a constable, who summoned Ward to trial on the 5th of the same month, at Trent Bridge, the usual place of trial in that district, and the place of Orme's residence: that Ward accordingly attended by the usual hour of trial, namely, the middle of the day, and requested Lee to return the warrant before a justice of the peace, who was then sitting to try all the other warrants, returnable there on that day: that Lee then informed him, and such was the fact, that in the early part of the day, Mr. Smith had been passing by on his way to Newbern, and had been requested by Orme to stop and try that warrant; and that he did so, and gave judgment by default, without any evidence but the production of the receipt itself; and left all the papers with Orme, and immediately proceeded on his journey. The bill further charged, that Ward immediately applied to Orme himself to produce the warrant, for the purpose of a second trial before a magistrate then sitting on other warrants; which he refused: that in consequence thereof, as soon as Mr. Smith returned home, Ward stated to him, on oath, his defence, and the advantage that had been taken to deprive him of it; whereupon Smith granted a new trial; and on the 14th day of June, 1824, issued and delivered a written notice thereof to Lee, requiring him to have the parties and papers before a justice of the peace for such second trial; but that Orme refused to deliver or produce the papers: that Ward believed the judgment to be then superseded, and no longer binding; and consequently, that no steps could be taken against him in the matter, until he should be again sued: that he knew and suspected nothing to the contrary, until September of the succeeding year, when, being at the court-house, he heard the sheriff set up his land, under an order of sale, and upon inquiring, discovered, that in March, 1825, Orme had obtained from another justice of the peace living in a remote part of the county, an execution on the judgment, and had caused it to be levied on his land, by one M'Daniel, a constable, also residing in another and remote district, and returned to court, and had obtained the order of sale--all without notice to Ward: that Ward then applied to the sheriff to know what process was in hands against the land, and was told by him, that besides Orme's, he had an order of sale at the suit of one Bryant; and that if he would pay the debt to Bryant, the sale should then be solely at the instance of Orme; and that Ward immediately paid Bryant, and took his receipt for the debt, in the presence of the sheriff, to whom he was also ready, and offered to pay the costs: that the sheriff then proceeded in the sale as upon Orme's execution only, when Ward gave public notice of his intention to resist the sale, and seek relief against it; but that Orme notwithstanding purchased as before-mentioned, and took a deed from the sheriff, in which it was recited, that the sale was made under both writs: that the application of any part of the price to the costs in Bryant's suit was unknown to Ward, who had been assured publicly, that the sale was under Orme's execution only. The bill then stated, that Ward refused to give up the possession, but continued to claim and reside on the land, up to the time of the sheriff's sale to Cole, under the execution against Robert Orme; and at that sale gave open notice of his right to all bidders, and particularly to a Mr. Roe, who bought the land as the agent of Cole, the defendant.

The prayer of the bill was for a reconveyance of the land: that the defendant might be enjoined from proceeding farther in his...