WOODS v. IRWIN.
Opinion,
Mk. Justice Mitchell:The action of the court below in opening the judgment was irregular, insomuch as it appears to have been done without evidence. There was a petition setting out certain facts on which petitioners asked to have the judgment opened, to which the plaintiff filed an answer, denying some of the facts alleged and demanding proof of the others. No depositions appear to *293have been taken nor any other evidence presented, so far as the record discloses, and the arguments seem to concede that the court acted on the petition and answer alone. It may be that this was done by general consent, but if so the fact does not appear on the record. We notice the matter so as to avoid any implication of approval of such a course, unless by consent. The discretion of courts to open judgments is very extensive, but it must rest on a foundation of competent evidence.
But a much deeper objection is that the court was without jurisdiction in tbe proceeding. There was no one before if asking for its action who bad any standing. Neither plaintiffs nor defendant desired tbe judgment opened, and the court had no right to do it on motion of a stranger not alleging fraud or collusion. True, the petitioners were creditors of tbe decedent’s estate, and tbe judgment tended to diminish the fund for their payment. But this of itself gave them no right to interfere. It has long been settled that a judgment can only be attacked by creditors or other strangers for fraud or collusion, and as already said neither is alleged in the present case. The fact of there being a fund in the Orphans’ Court which will be affected by the present judgment does not alter tbe general rule. Mere diminution of the fund gives no standing in that court, more than in any other. See Law’s Est., 140 Pa. 444, opinion filed at present term.
The learned counsel for the appellees, seeing tbe pinch of tbe case upon tbis point, bave argued that it was a fraud in law for the executrix to confess the judgment. But this contention is not tenable. A debt barred by the statute of limitations is still a debt, though the remedy upon it he suspended or gone. Its force as an existing obligation, even though only moral, is such that a promise to pay is binding without other consideration. And tbe debtor may make such promise without regard to its effect upon other parties, even though eredi tors. In Clark v. Douglass, 62 Pa. 408, this court, through Shabswood, J., said that it was now fortunately well settled that creditors have no right to impeach a judgment on any other ground than collusion; and in Meckley’s App., 102 Pa. 542, it was held that a, judgment honestly confessed to a wife by an insolvent was good against creditors. If not for more than was due, it was not fraudulent, either in fact or in law, *294though there had been no agreement for interest on the money advanced by the wife, and such1 interest had been included in the judgment. In Keen v. Kleckner, 42 Pa. 529, it was expressly held that a debtor, even though insolvent, was not bound to interpose the defence of the statute of limitations (or the statute of frauds) and might confess judgment for a claim so barred if the claim were honest, even though other creditors were defeated thereby. See, also, Brown’s App., 86 Pa. 524, and the analogous case of the defence of usury in Second N. Bank’s App., 96 Pa. 460.
These cases establish beyond controversion that if Ninian Irwin, the debtor, had been alive in 1886, he could have confessed this judgment, and no creditor could have impeached it as a fraud in law. It is equally well settled that his executrix stands so far in his shoes that if satisfied the claim is honest she is not bound to plead the statute of limitations. As there was no other defence, it follows that her confession of judgment was a prudent and proper course. She was doing no more than the testator might lawfully have done had he been alive. The debt was a moral obligation which either the debtor, or his executrix, acting in his place after his death, could convert into a legal one, and creditors have no more standing to complain in the one case than in the other.
It is true that in Lewis v. Rogers, 16 Pa. 18, Gibson, C. J., says : “ Nor will I say that if he (the debtor) were to refuse to move for the benefit of his creditors, they would not be permitted to move in his name; ” but he was speaking of fraud, as the next sentence shows: “ An insolvent man is not suffered to give away his property by means of a judgment which, though proper at first, has become a security for less than the amount of it; ” and his remark referred more to the form of the creditor’s proceeding than to his right, i. e., an attack on the judgment directly in the debtor’s name, and not collaterally in his own. So, also, Justice Sharswood remarks in Clark v. Douglass, 62 Pa. 408, 415, 416, that the creditors of an insolvent could even against a judgment set up anything that the debtor could, had reference to fraud, as is apparent from the context and from the facts of the case he had in hand. Even as dicta, these remarks were not intended to trench in any way on the settled rule, expressly reiterated in both those *295cases, that creditors can only interfere for fraud or collusion against them.
This result is not at all affected by the fact that the creditors in the Orphans’ Court will have the fund diminished by the judgment. There is nothing in the doctrine of Yorks’ App., 110 Pa. 69, which is relevant. The right of the executrix to plead the statute of limitations in the Orphans’ Court was established in that case. She has that right there and here. Creditors have no such right here, and she is not bound to assert hers for their benefit. As already shown, the debtor himself might confess judgment, no matter how much it diminished the creditor’s chance of payment, and his representative stands in this respect in his place.
As these views upon the status of the petitioners are decisive of the case, it is perhaps not necessary to consider the ruling of the court below on the question of opening the judgment to let in the defence of the statute of limitations, but it may be well to do so briefly, to avoid misconstruction. The learned judge, in saying that it is no longer matter of dispute that a judgment should be opened for that purpose alone, went a step beyond any of the cases. The most advanced case that we have been referred to does not decide that the court should, but only that it may do so. The plea of the statute, though no longer an object of animadversion, is not yet the object of favor. As a matter of public policy, recognizing that in the ordinary course of business life just debts are pursued with diligence, and that witnesses die and papers are lost, the statute is one of repose and protection. But, speaking for myself, I cannot regard the statute, unaided by any equitable conditions or circumstances, as other than a dishonest defence, for which alone a judgment should never be opened. But, however that may be as a matter of discretion with the court in each case as it arises, no case certainly has been brought to our attention in which a judgment has been opened for this purpose only, for a defendant who has had his day in court. The cases specially relied on by the court below and by appellees, Herman v. Rinker, 106 Pa. 121; Sossong v. Rosar, 112 Pa. 197; and Ellinger’s App., 114 Pa. 505, were judgments entered on warrants of attorney, fourteen, ten and eleven years old, respectively, and in all of them there were other circum*296stances besides the mere lapse of time set out as grounds of the application. But the action of the court was based, as is very clearly set out; by our Brother Green, in Sossong v. Rosar, on the fact that the defendant had had no hearing. If, on a suit in the usual course, the defendant comes in and confesses judgment, he could hardly be heard afterwards to say the debt was barred by the statute. He has made an acknowledgment of record that the debt is due, and that he will pay it. As already shown, what the debtor might have done his executrix may do in his place; and even if she had thereafter asked for the opening of the judgment, it could not have been granted without some equitable grounds to aid it. It is unnecessary to consider the offers of evidence at the trial.
Judgment reversed, order opening original judgment rescinded, and that judgment reinstated.
ir-win’s estate.
Opinion,
Mr. Justice Mitchell :The reversal of the judgment in Woods v. Irwin, ante, 278, filed herewith, requires the reversal of this also. Appellants’ judgment in the Common Pleas, being reinstated, must take its share of the fund in the Orphans’ Court.
Decree reversed, and procedendo awarded.