Kellogg v. Krauser

• Decision Date: 24 May 1826
• Citation: 14 Serg. & Rawle 137,16 Am.Dec. 480
• Court: Pennsylvania Supreme Court
• Parties: KELLOGG, ASSIGNEE, & c., v. KRAUSER.

14 Serg. & Rawle 137

16 Am.Dec. 480

KELLOGG, ASSIGNEE, & c., v. KRAUSER.

Supreme Court of Pennsylvania.

May 24, 1826

IN ERROR.

In a feigned issue, to try whether a judgment which had been assigned to the plaintiffs, is a lien upon the lands of the defendant, declarations by the assignor, made before the assignment, that a few days after the entry of the judgment and when its entry was unknown to the defendant, he had paid to the assignor $300, in consideration of which, the latter had agreed not to enter the judgment, may be given in evidence by the defendant.^[a]

Though the opinion of a witness, as to the value of land, is not strictly a fact, yet he may be asked, what was the value of certain mortgaged premises, in the possession of the defendant, at the time judgment was entered against him on the bond accompanying the mortgage.

In a feigned issue, to try the validity of a judgment assigned to the plaintiff, entered by warrant of attorney, upon a bond it is not error, to charge the jury, that if the person, who at the time, was the proprietor of the bond, after having entered judgment upon it, had agreed not to enter judgment and declared to the obligor that no judgment had been entered, the effect of such agreement and declaration would be, to render the judgment null and void, and that it would be a fraud to proceed on the judgment, under such circumstances; provided the assignee had notice of such agreement, before the assignment.

But it is not necessary, in order to be affected by the agreement that the assignee should have notice on record, or even in writing.

Notice in any way is sufficient, provided it be full, and such as could leave the party in no reasonable doubt.

The courts of common pleas have power to entertain a motion to strike off or open a judgment, or to order a feigned issue for the purpose of ascertaining necessary facts.^[b]

IT appeared by the record in this case, and the papers returned with it, on a writ of error to the Court of Common Pleas of Berks conuty, that Samuel Krauser, the defendant below, and John Krauser, deceased, gave a bond, with warrant of attorney to confess judgment, to Frederick Fœ ring, in the sum of $5000, conditioned for the payment of $2500, with interest. Frederick Fœ ring assigned this bond and warrant to Jacob K. Boyer, who assigned them to Rufus Kellogg, the plaintiff. Judgment was entered by virtue of the warrant of attorney, as of January Term 1823, in the court of common pleas of Berks county; a scire facias on this judgment was issued to August 1824.

The court, upon affidavits laid before them on the part of the defendant, granted a rule to show cause why the original judgment should not be opened, and afterwards, directed a feigned issue to ascertain whether this judgment was a lien on the real estate of Samuel Krauser, in the county of Berks; accordingly, a declaration was filed, on a supposed wager, in the usual form, and the parties went to trial on the feigned issue.

In the course of the trial, the defendant offered to prove, that a few days after the judgment had been entered, but when neither Samuel nor John Krauser knew of its having been entered, the said Jacob K. Boyer said to the said Samuel and John Krauser, " You have paid me three hundred dollars, which we call blood-money, so that I could not enter judgment on the bond, as long as the interest is paid." The admission of this testimony was opposed by the counsel of the plaintiff, but the court overruled the objection, and an exception was taken to their opinion.

The defendant produced as a witness one William Witman, and proposed to ask him, " What was the value of the mortgaged premises in possession of the defendant, at the time the judgment was entered on the bond, to wit, on the 31st day of January 1823?" The question was objected to by the plaintiff's counsel, but the court permitted the witness to answer it, and a bill of exceptions was tendered to their opinion.

The court were afterwards requested to charge the jury upon the following points, viz:

1. That a judgment entered in the court of common pleas of Berks county, becomes, by the law of the land, from the time of such entry, a lien upon the defendant's real estate in the county.

Answer. This, as a general proposition, is correct and true.

2. That an agreement between the plaintiff and defendant in such judgment, made subsequently to the entry thereof, that the plaintiff would not enter such judgment, is an agreement impossible to be performed, and therefore, void in law, in regard to the entry of such judgment and the lien thereof.

Answer. If J. K. Boyer agreed not to enter the judgment, and declared to the defendant that no judgment had been entered, the legal effect of such agreement and declaration would be, to suspend the operation of the judgment, and render it a nullity as to the defendant. It would be a fraud in Boyer to proceed against the defendant on the judgment, under such circumstances. Of the existence of such an agreement, the jury are to judge, under the evidence.

3. That such an agreement, if actually made, would give the party who paid money in consideration thereof, a remedy to recover back the money from the party to whom it was paid, but could not in law invalidate the lien of the judgment, entered previously to the said agreement.

Answer. The recovery back of the money paid to Mr. Boyer, on the agreement not to enter the judgment, would be a very imperfect and inadequate remedy for the breach of the agreement; but such agreement would invalidate the judgment, from the time it was made.

4. That such an agreement made upon a condition to be performed by the defendant, gives the said defendant no legal or equitable title to relief against the lien, if the said condition be not performed, and no proof of a tender by the defendant to perform the same, be shown, at the time such relief is sought.

Answer. It is for the jury to decide, whether the agreement not to enter judgment, was a conditional or an absolute agreement. If it were unconditional, or if conditional, and the terms of it were performed by the defendant, it would be obligatory, and the defendant would be entitled to relief. But if the agreement were conditional, and the terms of it were not complied with, or offered to be complied with by the defendant he is not entitled to the relief now sought for.

5. No such agreement, if actually made between the defendant and Jacob K. Boyer, the assignor of the plaintiff, but not recorded and not reduced to writing, can, in law, affect the plaintiff, unless notice of the terms of that agreement was given to him.

Answer. The plaintiff, Rufus Kellogg, ought not to be affected by the agreement, unless he had notice of it; but it is not necessary that such notice should have been recorded, or reduced to writing; if Rufus Kellogg had notice in any way, before the assignment to him, he ought to be affected by it.

Leavenworth, Hayes and Smith for the plaintiff in error.

1. The declaration of Boyer was not competent evidence, because it related to an agreement subsequently to the entry of the judgment, and because it was not proved that Kellogg had notice of the agreement. An agreement not to enter a judgment which has been already entered, cannot, by any possibility, be carried into effect, and therefore, is void. The party injured may recover back the money paid on a void consideration, but the validity of the judgment cannot be affected; it is valid, until reversed. 1 Salk. 400; 3 Salk. 214; 5 Com. Dig., Pleader, 2, 9; Lewis v. Smith, 2 Serg. & Rawle 142.

2. The answer which the court below permitted the witness to give to the question, " what was the value of the mortgaged premises, at the time the judgment was entered?" was irrelevant to the issue, and therefore, inadmissible. It tended to prejudice the jury against the plaintiff, by inducing them to think that the plaintiff, who purchased the mortgaged premises, had got the value of his debt. It was, at best, but an abstract opinion, and not a fact, and therefore, not evidence. 1 Phil. Ev. 126; 1 Serg. & Rawle 298; Forbes v. Caruthers, 3 Yeates 527.

3. The court erred in saying, that if Boyer agreed not to enter judgment on the bond, it would be a fraud in him to proceed upon the judgment, which by the agreement, was a nullity. If the condition of an obligation be, to do a thing impossible, the obligation is single. 1 Powel on Cont. 159, 161.

4. The court did not distinctly answer the fifth proposition submitted to them. The jury must have inferred, from the language of the court, that if the plaintiff had notice of the agreement, in any manner, no matter how vague and loose, it was sufficient to bind him; this was clearly wrong. At least, it may be said, that the charge on this point was obscure; and if the court give obscure instructions to the jury, it is erroneous. Fisher v. Larick, 3 Serg. & Rawle 319. Besides, the defendant might have had redress, by pleading the agreement in bar to the scire facias, and therefore, he was not entitled to avail himself of it in this issue. 6 Bac. Ab. 123; 1 Serg. & Rawle 540; 5 Serg. & Rawle 68.

5. The court of common pleas had no power either to entertain a motion to set aside the original judgment, or to direct a feigned issue. Davis v. Barr, 9 Serg. & Rawle 137.

Biddle and Buchanan, for the defendant in error.

1. In the order of things, the agreement should be proved first, and the notice afterwards. Some evidence, however, of notice had been given, before any evidence was offered of the agreement. After this evidence had been given, by permission of the court, further evidence of notice was given, previously to the delivery of the charge.

2. (The court informed the counsel...