#### John C. Goode *v.*John D. Hawkins, *et al.*

Persons may be permitted to unite in an association, by which one shall bid at a public sale for the benefit of all concerned, when the motive for such association is not dishonest, nor the object nor the effect of it to proJuce an improper result.

A wrong done by a person seeking equitable relief, to one not a party to the proceedings, furnishes no objection to such relief on the part of those against whom it is sought.

When an objection to equitable relief is based upon an allegation *offraud,*it will not bo sustained by proof of mere *error.*

The ca«e, upon the bill, answer and proofs was, that one" *William Uunl*filed his bill against *John 1). Hawkins, Richard Boyd.Francis Jl. Thornton and Henry*Fills,wherein lie charged that a *fufa,*which had issued from the Superior Court of Granville, directed to the Slierff of Warren, against *Alexander Boyd,*liad been levied on a certain tract of land as the land of the said *Alexander^*that previously to the *teste*of that execution, the said *Alexander*had conveyed this land to the defendant Fitts, in fee simple upon certain trusts for the indemnity of the defendants *Richard Boyd*and *Thornton*— that doubts having arisen, whether in law tiiis conveyance had priority *394to tbo lirn of ilie execution, and it being a matter of importance not only to (lie creditors- in the, execution, and to the said *Alexander,*but also to the defendant *Richard Boyd,*who was surety of the the said *Alexander*for the, debt on which the aforesaid judgment liad been rendered, that all such doubts might be removed, in order that the sale, might be for a full price, it was explicitly agreed and declared, on tiie part of the defendants *Boyd, Thornton*and *Fills,*that all claim under the, said deed should be waived and relinquished — that upon the faith of this declaration, *Hunt*became the purchaser of the land upon the execution sale, and paid the full price thereof — that subsequently the defendant *Fills,*by the direction of the defendants *Boyd*and *Thornton,*lmd assigned and transferred his legal interest in the said land, under the aforesaid deed of trust, to the other defendant *Hawkins*— that the said Hawkins,combining with the other defendants, was about to evict the plaintiff *Hunt*from the said land by virtue of the title derived under the deed of trust, notwithstanding it was perfectly known to all of them that the plaintiff had purchased at the execution sale, in consequence of the explicit abandonment by the other defendants of any title under the said deed, and of their full consent that the land should be applied to the satisfaction of the judgment which was discharged by the purchase.

The plaintiff prayed for an injunction, a convey] anee from the defendant *Hawkins*of all his estate under the said deed, and for general relief.

The material facts thus charged were admitted in the answers; but at the same time the defendants averred that the present plaintiff *John C. Goode*was the beneficial owner of the judgment against *Alexander Boyd,and*was jointly interested with *Hunt*in the purchase made at the execution sale — -that the said *Goode*had, since the rendition of the said judgment, at sundry times oppressively and usuriously extorted from the said *Alexander,*sums of money exceeding lawful interest, as a consideration for forbearance and indulgence thereon; arid that the agreement of the defendants *Richard Boyd, Thornton*
      *395ant] *Fitts*to permit the land to be sold 'under the execution, and to waive the title to it under-the deed of trust,' was obtained by gross and fraudulent misrepresentations of the said Goode, whereby they were made to be... ■lievfe that an original execution IuuMssued,of a date anterior to that of the deed of trust, the lien whereof attached to this land, and that this lien had been-preserved unbroken by a series-of a/ias executions,duly and regularly sued out thereafter.

*Hunt’s*bill was afterwards permitted to- be- amended. In the amended-bill, he distinctly charged that the purchase made at the execution sale was made for and on account of himself and Goode jointly, on an agreement' to divide the land equally between them. To t'liis-amend--ed bill he made1 Goode a party defendant;, and he modified his prayer for relief by asking for a conveyance-from the defendant *Hawkins*of an undivided moiety only. The original defendants, except *Hawkins,*relied'1 on the matters set forth in their former answers. *Haw-Jtins*submitted to .make *Hunt*a conveyance as to *his-*-moiety. *Goode*answered the amended bill, and admitted all the allegations of the plaintiff. *Goode*then also filed his bill in the nature of a cross-bill, in which he-utterly denied all usurious and oppressive dealings towards *Mexander Boyd,*on the judgments against him— insisted that the agreement for the waiver oftitleunder the-deed of trust, as against the execu tion had been made upon affair exposition of all the facts as to his judgment, and the execution thereon from time to time issued, & without any -fraud,misrepresentation or deceit on his ¡¡art, and prayed -that a conveyance might be made to him of the other undivided moiety of the land. To prevent delay, and save prolixity of pleadings, -the parties all agreed that the -answers of the defendants *Boyd, Thornton, Filis*and *Hawkins*to the bill of *Hunt*should be considered as their .answers respectively to the bill of *Goode,*and *Hunt’s*amended bill as Ijis answer to *Goode’s*cross-bill. All -irregularities in the forms of proceeding were waived .by ¡general-consent of all the parties. A decree had 4e.enbefore.rendered for *Hunt,.so*that ¡the controversy was now between *Goode*and the other parties,--

*396
      *Heverenx,*for the plaintiff.

*Badger*&' *f¥. H. lláywood,- -contra,*

GastoN, Judge.

After stating the case as abo\e, proceeded: — Three objections have been urged on the hearing against the plaintiff Goode. In the first place it is objected, tliat the agreement between him ami *Bunt,*whereby they were to be equally interested in the purchase made by the latter, was one in fraud of public ' policy, as calculated to prevent competition at the sale, and to deceive those present at the sale and ignorant of that agreement. Secondly, it is insisted that his oppressive and usuriotts exactions from *Alexander Boijd*for ‘ indulgence on the judgment, for the satisfaction of which the land was sold, deprive him of all claim to the aid of -a court of equity, for making good his purchase at such sale. And thirdly, it is contended that the waiver of ' title under the deed of trust was procured by fraud, and that he who was guilty of that fraud shall not be permitted to take the advantage of such waiver.

Not having been present at the argument of *Hunt’s*%ill, I do not know whether the objections now urged were then made, or if they were then made, what were the reasons which induced the court to overrule them. It is probable, however, from the submissions in Hato-*Mil’s*answer to *Hunt’s*amended bill, that there was no. opposition to this decree. But it Mould seem that the objections, if valid against one of the plaintiffs, M'ere valid against both. Whatever may be the forms of the transaction, *Hunt*and *Goode*purchased jointly by one and the same act, had one and the same title to relief; instead of being arrayed on different sides of the controversy, ought to have been joined as plaintiffs in the same bill, and are liable to have their claim repelled by one and the same defence. If the purchase M’ere designed to stifle, or necessarily tended to stifle fair competition— if one of the parties in the association cannot be admitted to join in insisting on the purchase — if the waiver of the outstanding title to the land Mere procured by the fraud of a partner in the *transaction*— the-purchase could *397not stand, and ought not to he aided in a court of equity. No one can there be permitted to set up a benefit derived through the fraud of another, although lie may not have had a personal agency in the imposition. *(Huguenin*v. *Basely*14 Ves. 238.) Still less can one of two joint contractors ask to *sever*the contract, and let him have the benefit of *half*of tiie bargain, in order to escape the pollution with which the fraud of his companion has tainted the entire transaction.

No one can in equity, be permitted to set up a benefit derived through the fraud of another, although he may not have had a personal ager.cy in the imposition.

As it is probable however that the objections now urged were not pressed on the hearing of *Hunt's*case, we have examined, and considered of these objections as wholly unaffected by the adjudication then made.— The first relies on the fact that *Goode*was concerned in the purchase made by *Hunt,*and that this interest was not proclaimed at the the time of the bidding.--— Wc arc unaware of any judicial decision, by which such a connection in a purchase at execution, or other public sale, is denounced as a fraud, nor do we find ourselves warranted by fair inference from any established principles, in pronouncing so sweeping a denunciation. The case of *Smith v. Greenlee*(2 *Dev.Rep.*126) referred to in this part of the argument, certainly contains no *adjudication*to that extent. So far from it, this court reversed the judgment below.and ordered a new trial from an apprehension that the *language*of the judge’s instruction might have induced the jury to think that all agreements to buy on joint concern at execution sales, were unfair. Whether any question might be entertained of the correctness of the doctrine asserted in that case as applied to the trial of an *ejectment*in a court of law, we have none of its soundness as applicable to the controversy here, and for that purpose adopt altogether the principles which it sanctions. If an agreement for one to bid on behalf of himself and others, be made to stifle, paralyze or discourage competition, those concerned in such an association shall not be permitted to derive benefit from a sale, the fairness of which has been thus violated. But persons may legitimately unite in an association, by which one shall bid for the *398benefit of all concerned, when the motive for such association is not dishonest, nor tlse object, nor the effect of it to produce an improper result. The act does not necessarily imply a dishonest motive, an improper end, or an injurious consequence. If by reason of these, the act should be repugnant to fair dealing, then he who objects to it because of such repugnancy, must *alledge*and *prove*the matters which render it liable to be thus impeached. It appears to us that this has not been done on the part of the defendants in the present case.

We deem it unnecessary to enquire whether the second objection lias or has not been sustained by proof. If clearly established, we do not perceive how a wrong done-by the plaintiff to *Alexander Boyd,*can furnish a justification to the defendants in now setting up against the plaintiff a title to the land which at the time of the purchase, they explicitly waived. *Goode*is asserting no equity, and asks no relief against *Alexander Boyd.*The latter is no party to the present proceedings. What is the true state of the monied transactions between *Goode*and *Alexander Boyd,*or between the former and the sureties of the latter, us such, is not here in contestation, cannot here be settled, and is in no way material to the decision of the equity which *Goode*sets up, to have a legal title removed out of the way of his purchase at the execution sale. He claims relief against those who set lip this legal title, and upon the ground of their agreement. They may rightfully insist pn any opposing equity which they have against him, but they cannot insist that be shall redress the wrongs of *Alexander Boyd,*before be shall be heard to complain of the wrongs which they have inflicted, or threaten to inflict on him.

The principal objection in the case, remains to be considered. As far as we can ascertain the facts upon, which this objection rests, they appear to be these: At the May term, 1822, of Granville County Court, the judgment of the executors of *William Smith*to the use of *Goode,*was rendered against *Alexander Boyd*arid *Spotswood Burrell, for*about the sum of 89000 on a bond In which the said *Alexander*was principal, and *Burrell,*
      *399the defendant *Richard Boyd,*and others, were sureties. The first execution on this judgment was a *fi. fa.*directed to the Sheriff of Granville, tested of the first Monday o-f November, 1822. On this, g'185'1 was paid by the defendants, and the execution stayed for the balance.— ■Writs off. fa. directed to the sheriff of the same county were regularly made out, issued and delivered to the said sheriff, and by *him returned*“indulged,” which were tested the first Mondays of February, August and November, 1823, and of February, 1824. There was also a writ of the intermediate term, May 1833, and tested of the first Monday of May, made out but not delivered to the said sheriff. An execution tested the first Monday of May, 1824, was then directed to the sheriff of Warren,and by him levied on certain slaves, and this tract of land, After the rendition of this judgment,and after the teste of the second execution, viz: on the 18th February, 1823,the deed of trust to *Fitts*for the security of *Richard Boyd*and *Thornton*was made. This deed was proved in April, 1823, and was afterwards registered, but the time of such registration does not appear. I presume, however, that it was registered shortly after its probate. A legal question arose, whether the land conveyed by this deed of trust was subject to be sold under the cxecution-^-and at the Warren County Court in May, 1824, *Goode, Alexander Boyd, Richard Boyd, Thornton,*the sheriff of Warren and many others being present, the opinion of *Robert H. Jones,*Esq. a respectable lawyer of that *county,*was asked. *Goode stated*that his judgment was prior to the deed of trust — that his first execution was prior to it, and that this had been kept alive by executions regularly issued every term thereafter. This statement was not contradicted by any person, and was expressly confirmed by *Alexander*and *Richard Boyd.*Mr. *Jones,*thereupon, without any further inquiry, decided that the execution then in the sheriff’s hands bound the land notwithstanding the deed.— *Goode,Richard Boyd*and *Thornton*then agreed, to which agreement *Fitts*assented, that all claim to the land under the deed would be waived as against the execution, *400upon *Goode's*consenting that the sale should be made for Virginia notes at par, and North Carolina notes at& per cent, discount. Upon this agreement the sales were made.

These facts do not, in the opinion of the court, establish the allegation of fraud and misrepresentation against the plaintiff, nor justify the defendants in now setting up title under the deed of trust,to defeat his purchase at those sales. The charge of fraud rests on the falsehood of *Goode’s*assertion, that the lien of his first execution had been *didy*and *regularly*continued by those subsequently issued. This assertion, say the defendants,was1 false, for all the executions prior to the last having been directed to-the sheriff of Granville, the execution directed' to the sheriff of Warren did not relate to any of the-former, so as to bind the property of *Boyd*in Warren county — and it was also false in this, that one of thé Granville executions, that of May 1823, was never delivered to the Sheriff, but remained cither in the clerk’s office,or in the hands of *Goode. It*is not pretended that the plaintiff’s *opinion*upon any *legal*question was either desired, or required, or relied upon by the-parties. For the determination of questions of *that*character, Mr.. *Jones*was appealed to. If there was any error in liis decision, this error is attributable to the plaintiff so far only as ho may have occasioned it by a misrepresentation or suppression of material' facts. Mr. *Jones*did not require to be informed whether the executions preceding that then in the hands of the sheriff had been directed to the sheriff of Warren,or to the sheriff of Granville, nor whether these preceding executions had been actually placed in the hands of the sheriff to whom they were directed. It is no imputation on Mr. *Jones’*professional reputation that he did not make these enqui-ries, for unquestionably until long afterwards, till the' decision of the case of *Den ex dem. Hardy*v. *Jasper (3 Dev. Rep.*158,) many of the first men of the profession held that an *alias fi.fa.*to whatever sheriff directed, bound all the property of the debtor against Ais alienations,from the test of the first *Ji.fa.*and it is not yet settled, nor *401are we prepared now to decide that, as against the defendant in the execution and his *alienees,*the lien of the original *fi.fa.*is lost, because an *alias*properly directed,was not put into the sheriff’s hands. The case *of Palmer*v. *Clark (2 Dev. Rep. 354)*expressly confines the adjudication to disputes for priority between conflicting execution creditors. Had Mr. *Jones*deemed these enquiries material, he would have made them. Neither he, nor any other witness testifies that the plaintiff stated any *specific fact*untruly. The defendants in their answers,charging the plaintiff with fraud and misrepresentation in the strongest terms specify *no fact*which was falsely alleged by him. *Richard Boyd*avers that the plaintiff exhibited a statement from the clerk of Granville County Court, shewing what executions had been sued out, and there is no evidence to prove that such statement varied in effect from the transcript which has been exhibited to us. *Alexander Boyd*and *Richard Boyd,*says Mr. *Jones,*confirmed *Goode’s*statement. Can there be a question that both these, and especially the former, who had repeatedly obtained indulgence from the sheriff of Granville by arrangements with *Goode,*well knew that the former executions had been directed to that sheriff ? *Clanton,*the sheriff of Warren, was one of the persons present, and privy to the enquiry, and he *knew*that the execution then in his hands, was the first that had come to him. The executions had all issued from the court of the adjoining county — the clerk’s office was within a day or a half a day’s ride — the facts were accessible to all interested in the subject, and we have no proof to induce us to believe that these parties were under the slightest mistake with respect to *any of these*facts.— That they were in error with respect to the legal result of these facts, is sufficiently shown. It is unnecessary, however, to enquire whether in any case an agreement may be set aside because founded in such error. The defence is rested on the ground *offraud,*and will not be upheld by proof or error. But if it could, we deem it obvious that the agreement to waive the title under the deed of trust,was not produced *solely*by the convic*402tion that such title was bad as against the execution.— *Richard Boyd*was solicitous to make the arrangement, because *Goode*would otherwise, insist on selling the ne-groes for specie, ami being liable on *Alexander Boyd’s*bond, as one of his sureties, he was anxious that the ne-groes should bring full prices. It appears that *Thornton*was reluctant to enter into it, but he yielded according to his own statement, because of the double motive, that he relied on *Goode’s*representation, that the execution had a prior lien, and that as *Richard Boyd*had consented, *he would not be*obstinate. The very arrangement to waive the claim, is evidence that its *invalidity*wa« not *certain.*The stipulation with the plaintiff in regard to the terms on which the property should be sold, if the title were waived, constituted a consideration for that waiver, assuredly of *some,*and possibly of *great*weight. *Richard Boyd*probably, judging from the evidence, would gladly have acceded to thejarrangement, had Mr. *Jones*expressed no opinion upon the question of the title, and it has not been shown that Mr. *Thornton suffered*by yielding his objections to the arrangement, after learning that it was acceptable to *Richard Boyd.*

Per Curiam. — Decree in favor of the plaintiff, with costs against the defendants *Boyd*and *Thornton,*who must also pay the costs of the defendants *Hawkins*and Fitts.