Hogg v. Link

Oh Petitioh for a Rehearing.

Black, C.

— We have examined again the question involved in this case, under a petition for a rehearing, and after careful consideration we have found no reason to modify the conclusion before reached. We take this occasion to indicate-more definitely the grounds of our decision.

*352A judgment of a court having jurisdiction is conclusive of the issue involved, as between the parties and their privies. Fraud in the procurement of the judgment is an extrinsic and collateral fact, and constitutes ground for a direct attack upon the judgment by a party thereto, by an application corresponding to an original bill in equity. Whether there is in this State any other mode of direct attack for such cause, as by application for a new trial, we need not here examine. Whether a party to a judgment should be permitted to impeach it collaterally for fraud in obtaining it, is a question which presents no difficulty under the code, which permits equitable defences, as we took occasion in our original opinion to show, by way of introduction and in agreement with the position assumed on that point .in the argument of counsel for the appellee. But here there is no contest between the parties to the judgment. The appellant properly introduced the judgment in evidence as the foundation of his claim of title. The appellee was not a party or privy to that judgment, but was a stranger. His certain property was subject to the judgment to the extent to which it might exhaust that property, purchased by him subject to the lien thereof.

A stranger to a judgment or decree may impeach it collaterally, at law or in equity, for fraud in its concoction. This is a general statement of limited applicability, and needs illustration. It is sometimes said that fraud renders void a judgment procured thereby; and it is thereupon insisted on behalf of the appellee that the judgment in question must be treated as a nullity; but such expression, like that in reference to the impeachment of judgments and decrees by strangers, must be interpreted by the facts of the cases in which it is used. When it is said of a judgment of a domestic court, in a cause in which the court had jurisdiction of the subject-matter and of the' parties, and the contrary is not pretended, that it is void because of fraud in its procurement, this must be understood in a'qualified sense. It means that the judgment will be treated as a nullity when the fraud has been *353shown in a proper proceeding between proper parties, and by competent evidence. Until this has been done, the judgment, valid on its face, is voidable only, and must be treated and enforced as a valid judgment.

Counsel have mentioned no case, and we have found none, which seems to us to sustain the appellee’s attack upon the judgment in question.

In Duchess of Kingston’s Case, 2 Smith’s Leading Cas. 609, .it was said in the opinion of the judges, pronounced by Lord Chief Justice DeGbey : In civil suits, all strangers may falsify,for covin” (that is, collusion), either fines, or real •or feigned recoveries; and even a recovery by a just title, if collusion was practiced to prevent a fair defence; and this, whether the covin is apparent upon the record, as not essoining or not demanding the view, or by suffering judgment by confession or default; or extrinsic, as not pleading a release, collateral warranty, or other advantageous pleas; ” and that u collusion, being a matter extrinsic of the cause, may be imputed by a stranger, and tried by a jury.” The case was a prosecution of the Duchess of Kingston before the House of Lords for bigamy, and the language above quoted was in an opinion in response to interrogatories propounded by the Lords. It was held by the judges that a sentence in a suit for jactitation of marriage, which was not in rem, but was inpersonam, brought by the defendant in the criminal action against her first husband, was not conclusive against the crown in the criminal action, the parties not being the same; and it was said that, admitting the sentence of jactitation to be conclusive upon an indictment for bigamy, the counsel for the crown might, nevertheless, be admitted to avoid the effect of such sentence by proving the same to have been obtained by fraud or collusion.

The fraud in the suit for jactitation of marriage was not fraud practiced by one party-to the suit upon the other party, but was collusion of the parties, and public policy was a suf*354ficient reason for permitting impeachment by the crown on the ground of collusion.

In Shedden v. Patrick, 1 Macq. Ap. Cas. 535, 607, the Lord Chancellor said he did not wish it to be understood that he concurred in the suggestion “ that' under no circumstances can a judgment of your Lordships’ House be called in question, if it be established that it was not a judgment in a bona fide suit, but obtained by the fraudulent collusion of both parties, in order, either by means of that judgment, to defeat the objects of public justice, or to defeat the rights of one of the nominal parties, he being an infant, whose rights were under the guardianship of another,” a colluding party, his factor loco tutotis. It was said, oh page 620, that the only question in such cases of impeachment is whether the former judgment was a real judgment or not.

In Harrison v. The Mayor, etc., 4 DeGex, M. & G. 137, on a question of legitimacy, where there was evidence of a sentence of nullity of the marriage in the consistorial court of 'Winchester, for want of the consent of the father of the wife, it was permitted to the heir to show in avoidance that the sentence was procured by collusion of the parties, the husband and wife, and that her father did consent.

Meddowcroft v. Huguenin, 4 Moore (Privy Council), 386, was a cause brought in the prerogative court, in 1842, citing the respondent to show cause why letters of administration should not be revoked. The respondent in her responsive allegation pleaded a sentence passed in 1816, in a cause in the consistorial court of London, annulling the marriage of the appellant’s father and mother before the birth of the appellant, said cause having been brought by the father and guardian of the appellant’s father against the appellant’s mother. The appellant responded that said sentence was not valid as against the appellant, because of collusive conduct of his father and mother, 'by which there was no bona fide contestation of the suit to annul the marriage, ánd the true stater of the facts was suppressed. It was held, on demurrer, that *355collusion would make a judgment a nullity, if between the parties, but that here, though the facts stated, if proved, might amount to fraud, there was no collusion, and the former judgment was not impeachable on the facts stated. See Perry v. Meddowcroft, 10 Beav. 122, 131; Meddowcroft v. Huguenin, 3 Curteis, 403.

The impeachments of judgments by third persons most frequent are by creditors of the judgment defendant. Judgments are expressly mentioned among the modes of defrauding creditors provided against by the statute. 13 Eliz. Ch. 5, and section 17 of our statute of frauds.

In 3 Chit. PI. 1166, precedents are given of replications, in an action against an executor, to a plea of a judgment already recovered by a third person against the executor, and that he had fully administered, except goods of a value not sufficient to satisfy such judgment, the replication in one precedent being that the judgment was had and obtained “by the fraud and covin of the said defendant, and with the intent to defraud the said plaintiff of his debts;” and in another precedent that the defendant • permitted and suffered the said judgment to pass against him for more than was due and owing from the testator to the judgment plaintiff, “by the fraud and covin of the said defendant and the said judgment plaintiff.”

In Dougherty’s Estate, 9 W. & S. 189, it was said: “It is contended, however,” (by creditors) “ that the judgment is fraudulent, because he who confessed it was defrauded. A surreptitious judgment, however, is fraudulent only as to the immediate parties.”

In Thompson’s Appeal, 57 Pa. St. 175, where a bond and warrant of attornéy, upon which a judgment was ’entered, was executed by the judgment defendant upon a false representation as to the amount secured by them, it was said that the judgment defendant was the only person who could set aside the judgment for that reason; that his judgment creditors might attack a judgment collaterally when it was a fraud upon them, as where there had been collusion between the *356debtor and the creditor, but they could not set it aside merely because it was a fraud upon the debtor; that if the judgment defendant had been defrauded into giving a judgment, it could not have been given with a secret agreement to defraud others. His consent being wanting, there was no collusion. See, also, Drexel’s Appeal, 6 Pa. St. 272; Lewis v. Rogers, 16 Pa. St. 18; State v. Fife, 2 Bailey, 337; Den. v. Gaston, 4 Zab. 818; Candee v. Lord, 2 N. Y. 269; Gere v. Gundlach, 57 Barb. 13; Harker v. Glidewell, 23 Ind. 219; Adkins v. Nicholson, 39 Ind. 535; Feaster v. Woodfill, 23 Ind. 493; Harbaugh v. Hohn, 52 Ind. 243; McAlpine v. Sweetser, 76 Ind. 78; Bump Fraud. Convey. 17, 18. .

A mortgagee may collaterally impeach a judgment affecting him, entered by collusion, but not a judgment recovered through fraud practiced by the judgment plaintiff upon the judgment defendant, the mortgagor. Mason v. Messenger, 17 Iowa, 261; Hackett v. Manlove, 14 Cal. 85; Esty v. Long, 41 N. H. 103; De Armond v. Adams, 25 Ind. 455.

A surety may collaterally impeach a judgment rendered against his principal, where it was obtained by collusion between the creditor and principal debtor to defraud the surety. Riddle v. Baker, 13 Cal. 295; Douglass v. Howard, 24 Wend. 35; Annett v. Terry, 35 N. Y. 256 ; Bridgeport, etc., Co. v. Wilson, 34 N. Y. 275; Great Falls, etc., Co. v. Worster, 45 N. H. 110; Beyer v. Williams, 4 McLean, 577; People v. Downing, 4 Sandf. 189; Bigelow Est., 3d ed., 97, n. 1.

The rights of persons to the title of lands may not be shifted and postponed to their juniors by merely colorable proceedings, to which such persons are not parties, and which are collusively conducted for the purpose of cutting off the prior title; and a judgment so obtained may be impeached for fraud by the stranger thereto, whose existing title is affected by it, and to defraud whom it was obtained. Atkinson v. Allen, 12 Vt. 619; Webster v. Reid, 11 How. 437; Caswell v. Caswell, 28 Maine, 232; Inman v. Mead, 97 Mass. 310.

A purchaser of real estate for a valuable consideration is *357protected by statute (27 Eliz. ch. 4; sections 12 and 13 of our statute of frauds), but the fraud from which he is so protected must be the fraud of one under whom he claims title, and if he purchase with actual or legal notice of a prior fraudulent conveyance, there must have been collusion to avail him.

A judgment confessed without authority could not be set aside, directly or collaterally, by a terre-tenant, who came in under the defendant. It was said: “Even a collusive judgment, though a nullity as to' creditors, is conclusive between the parties to it; and a terre-tenant claiming by conveyance from the defendant, stands on no higher ground.” Davidson v. Thornton, 7 Pa. St. 128.

In French v. Shotwell, 5 Johns. Ch. 555, cited in our original opinion, the original judgment was upon a bond and warrant of attorney, and constituted a part of the fraudulent imposition (see Shufelt v. Shufelt, 9 Paige, 137, 147; Mason v. Messenger, 17 Iowa, 261; Wilhelmi v. Leonard, 13 Iowa, 330). It was said: “ TenBroeck, the original party to the judgment, might have impeached it for fraud.” This, of course, could not have been for matter of mere defence. The Chancellor further said, speaking of the original judgment: “ If a judgment was fraudulent by collusion between the parties to it, on purpose to defraud a subsequent purchaser, the case would present a very different question. But if the judgment was fraudulent only as between the parties, it is for the injured party alone to apply the remedy. * * Eeuds and litigation would be interminable, if any distinct purchaser of distinct parcels of land, affected by a judgment, existing, and known when they became interested, could overhaul the judgment upon an allegation of usury, extortion or fraud, practiced upon their principal, the vendor, when he himself chooses to acquiesce in the alleged injury, or has expressly waived all complaint. It is stated to have been a principle of the common law, that a fraud could only be avoided by him, who had a prior interest in the estate affected by the fraud, and *358not by him who, subsequently to the fraud, acquired an interest in the estate. (Upton v. Basset, Cro. Eliz. 445, and recognized in 3 Co., 83 a.) * * The judgment precludes, on general principles; for the purchaser voluntarily comes in under the judgment,pro bono et malo, and except in the special case in which the judgment was confessed collusively, and by a corrupt agreement to defraud some subsequent purchaser (a case hardly to be supposed), he must take the lien as he finds it, and has no business to interfere with the contracts of other people.”

Counsel direct our attention to the fact that in Marriner v. Smith, 27 Cal. 650, cited in our original opinion, the court permitted the plaintiff to amend his pleadings. This was because the pleadings did not clearly show whether or .not the judgment was a lien upon the real estate conveyed. If it could be shown that it was not a lien, the grantee might be relieved, though the judgment could not be impeached by the purchaser for fraud against the judgment defendant.

There was evidence on the trial of the case at bar, that the appellee,paid a valuable consideration for the land, though this was not shown in the special finding. If he took by warranty deed, paying full value for the land, he would have the equities of one whose land is bound for another’s debt. But where one takes such a conveyance, with legal notice of a judgment lien upon the land, though he pay full value, he must rely upon his grantor’s covenants and the equities arising out of the relation thus voluntarily assumed, without the .right to impeach the judgment lien for fraud practiced against the judgment defendant alone in the procurement of the judgment. We know of no principle of law or equity or statutory provision authorizing him to impeach the judgment.

Per Curiam. — The petition for a rehearing is overruled.