Heller v. Jones

• Citation: 4 Binn. 61
• Parties: HELLER and another v. the Lessee of JONES.
• Decision Date: 12 June 1811
• Court: United States State Supreme Court of Pennsylvania

4 Binn. 61

HELLER and another v. the Lessee of JONES.

Supreme Court of Pennsylvania.

June 12, 1811

IN ERROR.

A judgment creditor who had bought the defendant's lands at sheriff's sale, and conveyed them to A, appeared to a scire facias post. ann. & c. by another judgment creditor against the same defendant, gave notice that he should insist upon fraud and combination between plaintiff and defendant, as a defence to the scire facias, and in other ways took part in the cause, but did not attend at the trial, nor give any evidence, and of course a verdict and judgment were entered for the plaintiff. A knew and approved these acts, and had a bond of indemnity from the judgment creditor first mentioned against all other claims to the land.

Held that it was not competent to A and the judgment creditor or his representatives, afterwards to controvert the judgment upon the ground of fraud.

UPON a writ of error to the Common Pleas of Northumberland, the case was as follows.

The plaintiff below derived his title under a judgment obtained by him against Mounce Jones the former owner of the land in dispute, on the 25th February 1788. A scire facias to revive this judgment was issued to November term 1791, on which there was a trial and verdict for the plaintiff at a court of Nisi Prius in October 1795; and on this verdict a judgment was entered, and the premises in the ejectment were levied on sold, and on the 19th October 1797 conveyed by the sheriff to Nicholas Jones, the lessor of the plaintiff.

The defendants Heller and Miller, claimed under a judgment in favour of George Miller (the defendant's father) against the same Mounce Jones on the 13th of May 1788, by virtue of an execution on which the land in question was sold, and on the 15th June 1789 conveyed to George Miller, who on the 16th of November 1789, conveyed to Heller.

On the trial of this cause the defendants offered " to give in evidence to the jury, a fraud and combination on the part of Nicholas Jones and Mounce Jones in the entry of the original judgment confessed as of November term 1787 in Northumberland county, and entered on the 25th February 1788. That in fact no money was due or owing at that time by Mounce to Nicholas Jones on the said judgment, or if there had been any sum due, it was fully paid off and discharged before the 17th of October 1795 which is the date of the verdict at Nisi Prius on the scire facias at the suit of Nicholas Jones against Mounce Jones. "

They further offered to give evidence, " that George Miller, the elder, was not present at the trial on the scire facias aforesaid on the 17th of October 1795, and that no inquiry in fact whatever was made, or testimony examined, on that trial, on behalf of Miller in support of his allegation of the fraud now complained of; and that John D. Heller the defendant, was on the 17th October 1795, living on the land in question under a conveyance from George Miller deceased, and was not present at, or party to the said trial."

To shew that this evidence was inadmissible, the plaintiff proved, that when George Miller sold to Heller in November 1789, he gave him a bond of indemnity against claims founded on other titles. Soon after the return of the scire facias upon the judgment of Nicholas Jones, Miller procured himself to be entered a party on the record with the view of defending the suit; and in January 1792 a rule was entered for taking certain depositions, notice of which it was provided in the rule should be given to Miller. On the 26th August 1794, notice of the special matter intended to be relied on under the plea of payment to the scire facias, was entered of the record, in the following terms: " It is contended on the part of George Miller, a judgment creditor of Mounce Jones the defendant, that the judgment bond, on which this judgment was entered up, was given without consideration, for the express purpose of defeating the said Miller, to whom the defendant had given a judgment that the lands to be affected by this judgment were sold by George Miller to the defendant, and the bonds for the same were put in suit, when the judgment bond was given by the defendant to the present plaintiff." " T. Duncan for George Miller. "

The plaintiff further proved, that Heller had throughout confided to the Millers the management of the controversy in every respect from the time of Miller's conveyance to him in 1789. He suffered Miller the father to bring an ejectment against Mounce Jones for the land, after the purchase at sheriff's sale, and the conveyance to Heller, as though that conveyance had not existed; and in consequence of a recovery in this ejectment, Heller was put in possession. Miller the son was made a co-defendant in the present ejectment, he served notice of arbitration upon the plaintiff, he entered an appeal from the award of arbitrators, and gave security to prosecute it.

Upon this evidence by the plaintiff, the Court of Common Pleas refused to admit the evidence offered by the defendants, and by agreement the question came before this court as upon a bill of exceptions.

Hall and Evans for the plaintiffs in error, contended that the evidence should have been received, because in the suit between Nicholas Jones and Mounce Jones, neither Miller nor Heller was party, and of course not bound by any thing done in the course of the suit. The case may be considered in the first place with reference to the relevancy of the evidence, of which there can be no doubt. The object was to defeat the plaintiff's judgment, by shewing fraud and collusion; and for this cause a judgment may unquestionably be opened and examined by a stranger in another suit, as well where it is collateral to, as where it is connected with, the original litigation. Dutchess of Kingston's case. Hale's H. Com. Law 42. 49. Has this judgment then been examined in relation to this objection, so as to conclude the plaintiffs in error. In point of fact it cannot be pretended that it has. The evidence was intended to shew it had not; and its rejection presumes it to be true, but incompetent. Has the judgment in point of law such effect, as to bind these persons, whether it has been examined or not? The general rule is plain, that the judgment concludes and is evidence only against parties, and those claiming under them. Bull. N. P. 232. 1 Peake's Ev. 26. 53. Neither of the plaintiffs in error stands in this relation. Supposing Miller the son to be upon the same footing with his father, still his father was neither party nor privy. The scire facias was not, and could not be, served upon him. The notice of defence by George Miller, was given without authority in point of law; it could not have been heard, if Miller had attended and urged it, and this must be the reason why he did not attend and urge it. He was not party in fact, because he did not attend at the trial; he was not party in law, because he could not have attended, except as a stranger, whose suggestions would have been impertinent, and would have been matter of error, if admitted on the record. Still less was Heller either party or privy. He was not terretenant at the time; if he had been, still it is only by virtue of a subsequent act, of 4th April 1798, 4 St. Laws 299., that he could be entitled to notice. At the time of the scire facias, the law required notice to pursue the original judgment, and to go to the original defendant or his legal representatives only. Heller then had no right to become a party, and in point of fact did not. He was not by the evidence even conusant of the action. He did not authorize Miller to appear and take defence for him; and if he had given the authority it would have been void. Standing unaffected as party to that suit, nothing done by Miller's son in the present ejectment is material. He may have aided the prosecution of the suit, but that has no bearing upon the question, which is simply, whether the judgment in the scire facias binds Heller. If it does not, certainly the evidence was competent.

Watts and Duncan contra, admitted that fraud might be examined in a collateral suit by strangers, but contended that it was not competent either to parties, or to persons who once already had had an opportunity of defence, to urge any objection against the judgment a second time. As to Miller, he was to all intents and purposes a party to the scire facias. He caused his name and his defence to be entered on record. Notice of the taking of depositions was to be served on him, which shews both the assent of the plaintiff Nicholas Jones, and also the order of the court that he should be recognized as a party in the cause. Does it lie in the mouth of such a person, or of any one affected by his acts, to say that he was not a party, because he was not served with process, and in point of law had no right to interpose? The ground upon which judgments conclude the parties, is that they once have had the opportunity of litigating the matter in issue; and here was a formal substitution of Miller by consent of parties at least, if not the order of court, which gave him the fullest opportunity of contesting the judgment of Nicholas Jones, in every particular. It was more, it was a legal substitution as a party in interest, a judgment creditor, who had guaranteed the land to Heller, and was to stand or fall by his own judgment. Such a one has a right to falsify the opposing judgment. Proctor v. Johnson ^[a]. The only question in the case is the privity of Heller, of which the court below were fully satisfied by the evidence. In point of law he was privy, as every vendee is to the acts of his vendor, where there is a warranty or a bond of indemnity. So was he in point of fact. George Miller the father brought the ejectment for...