#### Nathaniel C. Bissell *v.*Joseph Bozman.

The irregularity of a judgment at law is no ground of relief in equity. To entitle himself to relief, the defendant at law'must show that advantage was taken of him, to preclude him from a defence against an unconscientious claim.

The original bill was filed in Chowan, and charged that on the 8th of May, 1819, the plaintiff was indebted upon a settlement with the defendant, in the sum of *$197S 50;*for which he gave his bond, bearing interest from date; and to secure the same, mortgaged a house and lot in Edenton, and a plantation in Chowan county, called New Sweden. This mortgage was not in the usual form; but by way of an absolute conveyance in fee, with a defeasance from the defendant. The bill further charged, that a short time afterwards, the State Bank obtained a judgment against the plaintiff and the defendant as his surety, under which two slaves, Mack and *George,*were sold by execution, and purchased by the defendant for §1091, upon an agreement that the plaintiff might redeem them at any time upon payment of principal and interest, and that accordingly the slaves remained in the possession of the plaintiff or his family.

The bill then charged, that the plaintiff, a seaman by profession, wentto sea and was absent from 1819 to 1824, but that his pursuits were well known to the defendant, and that his family continued to reside in Chowan: That on the 10th of November, 1819, he remitted to the defendant *B 800 to be*applied to flic first mortgage ; and on the same account the sum of *B*1,025 in a draft, on the the 30fch of October, 1820. It also charged, that the plaintiff while absent was obliged to pay *M. Myers*& *Son*of Norfolk, Yirginia, the sum of $>499, besides interest, which had been disbursed in 1816, in repairs of a ship belonging to the defendant, of which the plaintiff was master, and which had gone into Norfolk, consigned with the cargo to the *Messrs. Myers ;*and that such payment ought in this court to extinguish so much of the debts to the defendant: And that the defendant had during Ids absence sold New Sweden without the plaintiff'’,s *155íüithoi'ity, permission or knowledge, and received tliei’C-for g *1500.*

Tiie bill then alleged, that the plaintiff was not bound to repay the sum advanced as the price of the slaves, but at his own election, as the defendant had an absolute sheriff’s deed, and had never offered to reconvey ; and upon this footing claimed to be the creditor of the defendant in the. sum of $>636, on the 29th of September, 1829 ; or if he was bound for the said sum of §1091, that he only owed on the said day a balance of *$675.*

The bill further charged, that in May, 1823, the defendant instituted an action on the bond, and had the writ returned *(C*not found,” with the view of issuing a judicial attachment, although ho knew that the plaintiff was then at sea in pursuit of his calling : . That he did issue the attachment, and in December, 1823, took a judgment by default, and upon an inquiry had damages assessed to the amount of g 1959, without offering any evidence of the debt except the bond ; but that lie filed sfcveral statements and accounts in the suit, showing the particulars of his demand : That execution issued on the judgment, under which all the defendant’s property was sold, including the negroes and the mortgaged house and lot in Edonton, at great sacrifice, viz. for the sum of >31821, though worth §6000 j and except the slaves, was mostly bought by the defendant, it stated that the plaintiff returned home only a few days before the sale, and had not time nor means for stopping it. And that the defendant for the purpose of Inlying at an under value, dissuaded others from bidding, and gave out that hé would purchase the property for the plaintiff’s benefit, and let him redeem it.

There were annexed to the hill as exhibits, the several accounts charged to have been filed by the defendant in his suit at law.

In number 2, the.plaintiff had credit lor $>1500, as the price of New Sweden, ánd was charged with cash paid, as per receipt $>150, and with various sums amounting in all to §1308, in discharge of judgments obtained against him — leaving a balance due him of §42. The bill *156charged, that the plaintiff never received directly or by agent the §150 *;*and that he did not owe the judgments, or if he did, gave the defendant no authority to pay them.

Number 3 was a statement of the debt secured on *Mack*and *George ;*in which credit was given for the §80.0 ; showing a balance due thereon to the defendant of §384.

Number 4 was an account of the proceeds of the draft for §1025. In it the plaintiff was charged with a bond of one *Tarkinton*for §421 (indorsed by him to the defendant before the settlement in May, 1819) and interest *;*and he was credited with the net proceeds of that draft, and with the sum of §199, received on *Tarkinton’s*note : showing a balance duo thereon to the plaintiff of §880.

Number 5 was an account current, in which the plaintiff was charged with the bond for §1957 and interest thereon, and §384, the balance on number 3 *;*and credited by the above balances due on numbers 3 and 4, showing thereby a general balance due the defendant of §1959, for which judgment was taken.

The plaintiff next submitted to consider *Mack*and *George*as mortgaged, and that he was personally liable for that debt, (though *not*bound so to do,) provided the defendant would account with him for their value when sold under execution.

And he insisted, that he was not liable upon his in-dorsement of *Tarkinton's*bond *;*because the debt mentioned in it was justly due, and he-indorsed it in April, 1819, and never received notice of its dishonor, though payable on demand.

The prayer was, that the defendant might come to a just'account, and restore and reconvey all the property bought by him under his execution, thus unjustly and fraudulently obtained, upon receiving what might be found due, if any thing *;*and for general relief.

The answer admitted the bond and mortgage ; and also the sale and purchase of the slaves, *Mack*and *George,*and exhibited a covenant of the plaintiff to pay their value if they died in his service, and an agreement for their *157redemption; and averrred that they continued in tlie possession of the plaintiff and his family, until resold under tlie defendant’s execution in 1824. It also admitted the payment of the $800, and the draft for $1025 ; and averred that the former was applied to the mortgage on the slaves, and that a special receipt was taken from him therefor ; and the latter to the bond debt as far as it would extend, deducting thereout the deficiency on *Tar-Mnton’s*bond. And in relation to that bond, it was stated that it was indorsed in May, 1819, and immediately put in suit : That *Turkinton*claimed and pleaded as set-offs mutual demands of his against the plaintiff, and had them allowed in tlie County Court; that the defendant prosecuted the suit faithfully and diligently, and appealed to tlie Superior Court, where the same result took place. It was admitted that notice was not given to tlie plaintiff; and the reason was, that he did not know where a notice would reach him abroad, and he was himself the plaintiff’s agent here.

The answer denied any knowledge of the payment to *Myers*& *Son*charged in the bill; and alleged that he did not owe them, and that according to the plaintiff’s own shewing, it was due in 1816, and therefore barred by the statute of limitations — which the defendant insisted on.. It also denied that he gave the plaintiff any orders or authority to make such payment, or that ho did make it before the judgment at law.

The defendant admitted the sale of New Sweden for *$1500;*but exhibited the plaintiff’s letter written at sea, and dated July, 1819, requesting him to sell it at that price and pay himself: And it stated that about that time many of the plaintiff’s creditors obtained judgments against him, and were about selling his property by execution, which induced the defendant;, as his friend, to apply the $1500 to the discharge of those, instead of retaining it; and he did pay the debts mentioned in exhibit number 2, appended to the bill: And as to the $150 therein charged, that he paid it to the plaintiff’s wife for the support of her family, and gave it to Air, *Barney,*who was her friend and relative, and; lived with her, to *158deliver to her, and took his receipt there for, as dcfend-ant thought; but lias since discovered that *Mr. Barney*wrote it, but did did not sign it: But he averred the facj; |0 f,e> that he paid it.

The suit, attachment and judgment were also admitted ; pnd the answer stated, that the long absence of the plaintiff, the large amount of the debt and the reduction of his property formed the inducement to it. The defendant denied all the allegations of fraud in relation to the injustice of the recovery, his views in obtaining it, or the use of any unfair means : He averred that he stated the accounts and filed them, to show to the plaintiff and to the world the fairness of the transaction ; and that the suit was attended to, upon the trial, by the same *Mr. Barney,*who was an attorney of that court, ami did not upon that occasion object to the gil 50 claimed upon his receipt: He denied expressly any unfairness in the sale, or that he induced any person not to bid, or wished to do so, or caused it to be understood that he would buy for the plaintiff, or that it was so understood: And he averred, that when the plaintiff arrived at home he offered to stop the execution, if his debt was secured to be paid in any reasonable time; but the plaintiff rejected the offer, and would do nothing — whereupon the sale took place, and he urged many persons to bid, as he was afraid his debt vrould not be satisfied, as turned out to be the fact, although the effects brought fair prices; and he averred, that the whole debt recovered was just and true.

The defendant filed a cross hill, seeking discovery from the plaintiff on many points, and charging various matters, in order that a final adjustment of all matters of controversy might be effected *;*the only parts of which it is material to state are, that it recharged the matter stated in the original answer, touching the special receipt for $800 ; *Tarkinton’s*bond; the payment of $150 to the wife of the plaintiff, or *Mr. Barney*for her, and the payment of the judgments agairistthe plaintiff; and Sought discovery whether the plaintiff had not appointed him, the defendant, his agent, or requested Mm to pay *159his debts ; also whether the set-offs allowed to *Tarkin-ton*were not due; and whether the plaintiff had not been informed by his wife and did not believe, that she received the sum of $>150 from him ; and that he might deliver up the receipt and defeasance originally given for the plantation and lots, to be *cancelled;*And prayed further a final settlement of all matters between the parties ; and particularly, that the defendant might be foreclosed from all power or right of redemption in the mortgaged premises, if he had any.

The original plaintiff in his answer to the cross bill insisted, that the whole of *Tarkinton’s*note was due : and that he was discharged at law and in equity upon his indorsement, for want of notice, especially as he was once in Edenton while the bond was in suit, and conversed with the defendant, who- did not inform him, that he was looked to.

He admitted the authority given by him to sell New Sweden, but denied that be recollected requesting the plaintiff to pay any debts for him, and averred that he did not believe he had *;*and insisted that if lie had, payment ought to have been made before the costs were incurred: He did not deny that he owed the debts, paid by the defendant. He exhibited the defeasance and the receipt for g 800 ; which was expressed to be on account of the redemption of the negroes: but he alleged, that this was done by the defendant contrary to his orders. As to the g> 150 the answer was evasive and unsatisfactory — qualifying a general denial made upon the information of the wife, as at first drawn, by interlineation, so as to make it special and equivocal, the defendant saying, “ *he*had no knowledge of the payment to *M. Jh Bissell. (by the hands of 6. W. Barney,)*and had understood from her, and so believed, that lie never did pay said money (to *Barney*aforesaid”).

*Iredell*and Kinney, for the plaintiff.

A court of equity will set aside a judgment *at*law obtained by fraud, or if by accident the defendant had not an opportunity of urging his defence. 'Or where the plaintiff at law has used improper means to obtain possession of the defen*160d ant's property atibe sale, at less than its value, tlie court will declare him a trustee and compel him to- account for the profits. *(Gainsborough*v. *Gifford,*2 *P. Wins.*424. *Waller*v. *Balt,*t *Dick.*8. *Bateman*v. *Willoe,*1 *Soft..*& *Lef.*205. *Barnesley*v. *Powell.*1 Fes. /Sr. 284.' *Mitchell*v. *Harris,*2 *Yes. Jr.*136. *Cranstownv. Johnson? 3 Yes.*1 TO. *While*v. flail, 12 *Yes,*324.)

*Gaston, contra,*

cited *Hovenden’s Sup.*264.

Eueein, Judge,

having stated the case as.above, proceeded :

It is insisted for the original plaintiff *Bissell,*that this is the case of a judgment obtained by fraud, where the defendant was precluded from his defence, and will he relieved in this court. It is alleged too, that it was irregular, and in a case not proper for a judicial attachment, and therefore this court will put the party hack into possession of the property bought under it by the plaintiff.

The first observation called for by these positions is, that all matter of irregularity is out of the case here. That is a matter of legal jurisdiction, and not the foundation for coming into equity, except so far as it may he evidence with other things of a fraud — as where those proceedings denote an anxious hurry to put a demand, proved *aliunde*to be, unfounded, through the forms of legal proceedings. The legal proceedings must be deemed right in this court, until the injustice of the recovery is shown by proof extrinsic of those proceedings themselves. If therefore the process of judicial attachment were not proper, that will, of itself, not avail the plaintiff. It was allowed by the proper tribunal, and the judgment founded on it must be taken to be conclusive here, although by it a recovery is made without having the party personally in court. It is not for- us to say, that it is iniquitous, when the court of law supports it; much less, when the legislature gives in certain cases that proceeding, and in others that by original attachment; in each of which personal defence is seldom made, though it is supposed that it may,. and,in*161tended that it shall be in all. The plaintiff must therefore further show, that advantage was unduly taken of him by the use of this remedy, in such a way as was intended and did preclude him from defence; and secondly, that for want of such defence a recovery was effected, not merely of sums not duly proved on the trial, or of sums which could not upon defence be recovered from him in a court of law, hut which the plaintiff at law could not recover, or having recovered, cannot retain with a good conscience by the law of this court. If indeed a judgment for a true debt be iniquitously used, the court will annul what has been done under it. Such was the case of *Lord Cranstown*v. *Johnston*cited for the plaintiff from 3 *Ves. 170,*and 5 *Ves. 277.*The defendant was pretending to treat with the plaintiff in England for the purchase of the estate at private sale, and while he was thus amusing him, and putting him off his guard, and his propositions were made with that intent, he gave secret instructions to an agent to proceed according to some summary colonial method to bring the estate into market, and purchase it for him. It was brought to sale, and the proceeding so shocked those present, that every one considered a good title would not he had under the sale; and nobody bid but the agent, and be purchased. .No court could sustain such a transaction. The debtor was lulled to sleep ; the creditor made the title doubtful, and under that disadvantage brought it to sale ; competition was suppressed *;*and he bought at a great undervalue. His purchase was set aside on the score of fraud. Allegations are made in the bill of conduct on the part of *Bozman,*at the sale, in some respects of the same character. But they arc denied in the answer, and unsupported by proof. He could not have held out the idea, that he was buying for *Bissell,*and would allow him time to redeem ; for the latter had just defied him, and given him distinct notice that he would not redeem, but seek to set the whole aside. And witnesses speak of facts which prove that *Bozman,*urged bidders to give fair prices for all but the furniture, which fee suffered te be bought in -low by friends of *Bissell.*

If a judgment has been iniquitously used, a court of equity will annul what has been done under it.

*162where there is a confidential the plaintiff and defendant at law a court or equity-will set aside a iaultuníessíomé proof was offer-c'd’

ts indorsed lipón which nothing is and notice^unnecessary to subject themdoisei

Then the cause stands entirely as to the evidence of fr'aut*’ upon the justice or injustice of the recovery. And upon that head, I must repeat, that in this court the qUOStion ¡s, not whether the recovery was strictly proper by the rules of law, but whether it was against conscience to assert such a demand, and to receive payment. Both the conscience and law of the case are in general presumed in favor of the judgment of the court of law— which is taken to be conclusive here as in another court of law, unless under particular circumstances. (*White*v. *Hall,*12 *Ves.*324.) The court in an ordinary case would therefore not put the plaintiff at law to any re-proof of his demand. But here, as there is some evidence of an express agency, and there certainly was a confuten-^ial relation to some extent between the parties, and the suit was actually undefended, some proof was necessary ,;Q tliis cause. And the defendant here has offered it of a kind entirely satisfactory, as far as it was necessary to rePe^ tbe charge of fraud. ELe proves incontestably the payment of the several sums as and for debts from the plaintiff to other persons. There is no doubt he was out of pocket to the extent recovered for those items; and in the answer to the cross bill, *Bissell*will not deny eithc-r of those debts, nor that he requested *Bozman*to pay them ; hut only that he does not remember such a request — while two- of the witnesses, one of them an officer who had some of the executions, prove that *Bissell*said *Bozman*was his agent, and referred the officer to him for payment. It is not certain, that notice' was reffu‘rei^ uPon *Tarkinton’s*bond, if one indorses a note upon which nothing is due, it is a fraud. Notice does n0 §ood 5 because the party already knew that payment had been made, and no further payment could beobtain-And if it clearly appeared here, that the set-off was just, and that *Bissell*was aware of it, there would be an end of the question even at law. But *Tarkinton*does not swear precisely, that his demand was a true one. He proves however, as the record of that suit does, that he pleaded and obtained the set-off; that *Bozman*contested both in the County Court and upon appeal, and *163jH’osecuted the suit *bonaJide.*it is to be recollected, that our inquiry here is, was there fraud? Had not *Bosnian*a right then to consider, that *Tarkinion’s*set-off was just? Was it dishonest in him who had lost the money by judgment of a court, to treat that judgment as rightly given? The question carries its own answer. The remaining item contested in *Bosnian’s*account is that of *¶>*150 paid to *Mrs. Bissell.*This is positively sworn to by him in his answer. A witnesss, his son, says he counted out the money to carry to her, though the son did not sec him pay it. *Mr. Barnet/*says he has no recollection of receiving that sum, but that the receipt for it was written by him, and he cannot account for the want of his signature ; that he was not the general agent of *Bissell,*but often acted in his affairs at the request of himself or his wife, and sometimes without request, because he thought it for his benefit. And ho states that *Mrs. Bis-sell*talked of getting money 'from *Bosnian,*but he does not know whether she did or not. The direct testimony of *Bissell's*wife cannot be had to the point. Hut he is interrogated in the cross bili as to the information derived from her, and his belief; to which he answers, as if making a special avoidance, not by way of general denial, but qualifying ti»at denial, as first framed, by restricting the statement made by her to this ; that she did not receive that sum by the *hands of Barney,*and that ho believes that *Bosnian*did not pay the money *to Barney aforesaid.*This is special pleading on oath, and so plainiy evasive, as almost to amount to proof of itself, that *Mrs. Bissell*did *in some waij*receive the sum *;*and at all events, with the other evidence, establishes the fact to an extent so nearly amounting to a moral certainty, as to leave no ground for impeaching the judgment upon the score of conscience.

The remaining ground on which *Bissell*contests the judgment at law, is that of a mutual demand for money paid *Myers*& *Son*for the disbursements of a vessel of the defendant. These disbursements occurred in February, 1816, when *Messrs. Myers*had effects,of *Bosnian*in their hands to a large amount. They several times *164rendered accounts to *Bowman,*and paid the balances ; in which, they say, this sum ivas omitted through haste and mistake. In July, 1820, they applied to *Bissell*then in Norfolk for payment j which he refused upon the ground that he was notliable and of length of time, and referred them to *Bowman.*Of this *Bissell*advised *Bowman*under date July 18th, and on the same day *Myers*forwarded the account to *Batsman,*who refused to pay *it;*whereupon it was put into an attorney’s hands, but no proceedings. of law seem to have been had. *Bissell*had effects in the hands of *Messrs. Myers,*and among them a bill on the West Indies, which they were to collect for him. They failed, and made an assignment; and up to that time had received payment from no quarter But in May, 1824, they write to *Bissell,*that in 1822 their correspondent in Jamaica had given them credit for the bill, which they had hot noticed until a late overhauling of their books and papers. They then advise him, that they have given him credit for that .sum *;*and to liquidate it have *charged to him*the brig *William’s*disbursements. Whether *Bissell*was originally liable for that debt, or could pay it after eight years and his former refusal, and thereby charge *Batsman*upon the new contract to himself, after the latter had refused to pay *Messrs. Myers themselves;*or whether this charging by bankrupts in discharge of a debt from themselves be such a payment as renders'Uoamau a debtor therefor ; are questions not necessary or proper now to be decided. They will come up more properly upon the accounts hereafter to bo taken, on another branch of the cause. But taking *Batsman*to be now liable' for that debt, it entirely fails as evidence of fraud in taking the judgment. In that point of view it is subject to this decisive observation. *Batsman*contested that claim as against the original *claimants;*and at the time of taking the judgment, was not only ignorant that the debt was charged to *Bissell;*but the latter was also ignorant of it. For the judgment was in December, 1823, and the letter of Messrs. *Myers*to *Bissell*is dated May 28th, 1824.

*165If the mortgagee obtains judg ment and execution for the mortgage debt, and under the act of 1812, *(Rev. c.*830,) sells the equity of redemption, and becomesthe purchaser, how is the relation between him and the mortgagor affected thereby ? *Qu. ,*

It must therefore be declared, that the judgment was for a just debt, which *Boaman*might in good conscience receive.

This would dispose of the original bill, as it is not framed on the foot of the mortgages and the right of redemption. Indeed it denies the obligation at any time on *Bissell*to redeem the slaves. The *gravamen*of it is the fraud in getting, by an irregular proceeding, a judgment at law for a debt not due, and using the execution iniquitously. It sets out indeed the original debts and mortgage ; but it is only to show, that they had been discharged; and there is no question made in the bill, upon the right of the mortgagee to sell the mortgaged estates for that debt; but the prayer is, to set aside the execution sale. Upon the grounds relied on, there is no foundation in the facts to support the prayer ; and the bill ought to be dismissed, and would be dismissed at once were the plaintiff not entitled to relief upon other parts of the pleadings. For which reason, both causes will be retained, until the case shall be finally disposed of.

It has however been further insisted for *Bissell,*that the sale under execution does not bar redemption, hut being for the mortgage debt, leaves that equity untouched, especially as to those parts purchased by the mortgagee. This depends upon the construction of the act of 1812. The question was touched in *Cox*v. *Camp,*(2 *Dev. Rep.*502,) and was then said to be a difficult one. Upon further consideration I think it extremely difficult —in reference as well to the case, where a stranger purchases when the sale is made for the mortgage debt, known so to be, as where the mortgagee himself does. In this case, however, it does not arise. As to the purchases by others, they are not made parties to the original bill, if that were properly a bill to redeem ; and consequently their titles are confirmed, and the price or the valuó taken as a substitute for the property. As to those made by *Batanan*himself; taking a sale under an execution to he a statute foreclosure, it must be admitted, that it is, as yet, a doubtful and unsettled doctrine ; and being so, the creditor has found himself under the ñecos-*166sity of coming hero, to ask that his defeasance may be brought into court, his title, confirmed, and the mortgagor foreclosed. Equity does not lean to foreclosures, especially at short ¡¡and. It is true, that after what it deems reasonable timo, it gives the mortgagee the benefit of the condition in law, and declares his estate absolute. Yet that is felt to be a ease of hardship, and often to produce injustice. Hence any consent, express or implied, is seized as an occasion to open the estate to redemption upon payment of the debt, which is the real justice between the parties. If therefore upon a hill to redeem after any length of time, the defendant *submit*to „ redemption, it will be decreed. *(Proctor*v. *Oats,*2 *Atk.*140.) So if the mortgagee get a decree of the court of equity itself for foreclosure, and afterwards take out process upon any collateral security for the same debt, he waives the decree, if the mortgagor chooses. *(Dashwood*v. *Blythway. 1 Eq. Ca. Abr.*317.) The reason is, he treats the debt as still due, and therefore his title as not absolute. Much more here, where the title is very doubtful in law, shall a bill for further foreclosure, if I may use the expression, remove that which I will not say has taken place, hut may have taken place. It is true, the cross bill does not unequivocally admit the right of redemption, hut prays for foreclosure, in case the debtor has the right. For this purpose, this is the same as a general prayer. The court is asked to investigate the accounts, and settle the title. Upon the footing therefore of the cross hill, the case *is*open for redemption upon payment of principal and interest, allowing to the debtor, in the accounts, credit for the value • or price of such parts of the mortgaged effects as third persons bought; and a reference will be ordered accordingly. No directions are given about the application of the payments of the proceeds of the sales to particular debts, as would have been necessary, had the judgment at law been impeached by the decree ; but as that stands untouched, and it is a common equity for mortgagees, as against the mortgagor himself, to tack judgments, the whole debt must be considered as the in-*167cumbrance, subject to such reductions as the debtor can •make appear before the master.

*166But where a mortg’agee purchases at a sheriff’s sale, and filed a bill to have liis title confirmed, held that he thereby consented to open the estate to redemption.

If after foreclosure the mort gagee in any other way treats the debt as still due, the account will be opened.

*167Per Curiam. — Decree accordINgut.