Winters's Appeal

The opinion of the court was delivered, May 11th 1869, by

Williams, J.

This was a bill to compel the defendants to repay to the plaintiff the amount of a judgment which he had paid as the surety of Isaac Thompson, his co-defendant. The plaintiff alleges, as the ground of the relief which he asks, that the defendants had agreed to satisfy the judgment in consideration of the conveyance, or transfer by means of a sheriff’s sale, to George S. Wilcox, one of the defendants, and the plaintiff in the judgment, of certain real estate belonging to Isaac Thompson, the principal debtor, which was bound by the lien of the judgment: that the real estate of Thompson had been sold at sheriff’s sale pursuant to the agreement, for a nominal consideration, and purchased by the attorney of Wilcox, who took the sheriff’s deed, and held the title in trust for him; and that the defendants, instead of satisfying the judgment in accordance with their agreement, had assigned it to Edward H. Chase, and the plaintiff had been compelled to pay the assignee the amount thereof. It appears on the face of the bill that the plaintiff was not a party to the alleged agreement, and that no part of the consideration- moved from him. There was, therefore, no privity of contract between the parties, and no suit *313or action could be maintained tbereon by tbe plaintiff against tbe defendants either at law or in equity. But the bill alleges that the plaintiff was informed, by George S. Wilcox and Isaac Thompson, that such an agreement had been entered into by and' between the parties, at the instance of the defendants, and that in consequence thereof he did not attend the sheriff’s sale of said real estate, nor bid on the same, as he would have done, had not the agreement of the parties been communicated to him; and he avers that he was willing to bid on the said real estate sufficient to cover the judgment upon which he was liable as the surety of Isaac Thompson. But he does not allege any fraudulent combination, misrepresentation or deceit on their part to prevent him from attending the sheriff’s sale and bidding on the said real estate an amount sufficient to cover the judgment, in order that they might obtain the property for a nominal consideration, and, in fraud of their agreement, compel him to pay the judgment for which he was liable as surety. If, therefore, the plaintiff- was prevented from attending the sale and bidding on the property, as alleged, and suffered loss thereby, it was damnum, absque injuria, and no action will lie therefor. But if the bill had alleged that the plaintiff was prevented from attending the sheriff’s sale, and bidding up the property to an amount sufficient to cover the judgment, by the fraudulent misrepresentation and deceit of the defendants, the plaintiff, though he might have maintained an action on the case therefor, would have no remedy in equity. The only possible ground on which he is entitled to recover back the money paid on the judgment, is that it was in fact paid and satisfied out of the real estate of the principal debtor before its assignment. If it was wrongfully assigned by the defendants after it was so paid and satisfied, and if the plaintiff paid the assignee the amount without a knowledge of the fact of its previous payment, he might recover it back from the defendants in an action at law, but not by a proceeding in equity.

But it is doubtful whether an action at law would lie for the recovery of the money, under the circumstances of this case, inasmuch as the evidence shows that the plaintiff paid it with a full knowledge of all the facts, and the payment must therefore be regarded as voluntary on his part. He did not apply to the court to open the judgment and let him into a defence, as he might, but paid it and had it .assigned to his father in trust for his use. It is clear then that this bill cannot be maintained in any aspect of the case. But if the bill would lie, the plaintiff, under the pleadings and evidence, is not entitled to the decree for which he asks. The answer positively denies the alleged agreement, and the master finds that no agreement was proved under which it became the duty of the defendants, or either of them, to satisfy the judgment, and his finding was apiproved by the court below. We have care*314fully considered the evidence reported by the examiner, and are clearly of the opinion that it does not establish the alleged agreement. The negotiations testified to by the plaintiff’s witnesses were never consummated. The testimony of Isaac Thompson, one of his main witnesses, shows that the agreement of which he and the other witnesses speak had not been finally concluded. He says: “ George” (meaning George S. Wilcox, one of the defendants), did not say when the judgments were to be satisfied. I think he said he was to meet Crandall at Wilkesbarre and make further arrangements after he had seen me and got my consent.” And the testimony of Chase shows that the propositions then pending and the arrangements contemplated were never consummated, and that an entirely different arrangement was made between the parties, by which, among other things, it was agreed that the judgment in.question should be transferred by Wilcox to Crandall W. Thompson on his paying the amount thereof: and that he did not purchase the property of Isaac Thompson at the sheriff’s sale for the use of Wilcox, but in trust and for the use of Crandall W. Thompson. If this be so, the plaintiff’s claim is wholly without foundation. If, then, there was no such agreement, as alleged by the plaintiff, and if the judgment was not satisfied by the sale of Isaac Thompson’s property, the plaintiff has no right to recover back the money paid on the judgment, and his appeal must be dismissed.

Appeal dismissed at the costs of the appellant.