#### Thomas *and*Memucan Falconer *v.*Daniel Jones.

Where a *sci.fa.*on a judgment in detinue issued against a purchaser *pendente lite,*a plea that the defendant purchased at an execution sale against the original defendant, without averring that the title of the plaintiff, though good against the latter, is not good against his creditors, is bad.

This was a scire eacias, reciting that the plaintiffs had recovered judgment in an action of detinue, brought *335by them against one *John*Holloway, for sundry slaves ; that pending the action two of the slaves came to the possesion of the defendant; and commanding him to show cause why he should not deliver the skid slaves to the plaintiffs.

The defendant pleaded 1st, *“*That the slaves in qu6s- *“*tion were the property of one *Thomas Falconer,*and *“*after his deatli came to the possession of *John Holloivay, “*his administrator; that pending the suit by the plain-» *“*tiffs, against the said Holloway, *J,*& *il. Lyne*obtained “ a judgment against *Holloway*as administrator of *Fall’ coner.*upon which an execution issued, and was levied *s‘*upon the said slaves, and that at a subsequent sheriff’s *“*sale, one *Ann Falconer*purchased them, and after- *“*wards an intermarriage took place between the defen- “ dant and the said *Ann.”*

The second plea, after setting forth the above facts,' concluded with an averment, that the judgment in favor of the plaintiffs against *Holloway*was permitted by *Holloway*to pass against him, in fraud of the.creditors of his intestate.

To these pleas there was a general demurrer, which "Was sustained by his Honor Judge Sw-viN, at Granville, on the spring circuit of 1831, and the plaintiff appealed.

*Seawell. Badger Sf fF. E. Haywood,*for the plaintiffs,

contended, that as the fraud was admitted by the demurrer, the judgment was void, being expressly within the words of the fourth section of the act of. 1715 ( *Rev. c.*7) “ for preventing fraudulent deeds and mortgages.” *(.Briley*v. *Cherry ante vol. a, p.*6.)

Heverence, for the defendant,.

admitted that the judgment, if fraudulently confessed by *Holloway,*was void against the defendant; but distinguished this case from *Briley y. Cherry,*and contended that advantage could not be taken of the fraud by plea to a *scire facias*on this judgment: That as long as the judgment stood unre-versed, it was to all intents binding, and that the defendant could allege the fraud only in an independent action, or upon a motion to vacate the judgment. ( *Mid-*
      *336
      *dleloi),*v. *Hill, Cro. Elia.*588. *Bushv. Goxvcr, Strange*1Q43> *Machín*v. *Belaval, Barnes’ Notes*52, 277).

Henderson, Chief-Justice.

It is not intended to impugn the general rule, that he who comes to the property-in contest, from or under the defendant, *pendente lite,*is bound by the judgment; and if he does not show, that he comes in above, he shall be taken as coming in under him.

To this *sci.Ja.*there are two pleas, to each of whicq there is a general demurrer. The first in substance is, that the defendant’s wife purchased the slaves in contest, pending the suit against *John Holloway*at sheriff’s sale, under an execution against the said *John,*as administrator of *Thomas Falconer*deceased, sued out at the instance of *J. Sc H. Lyne,*with an averment that the slaves were of the estate of the said *Thomas Falconer,*and that the said *John*took.possession of and held them as of the estate of his intestate.

The second plea, I understand to state, in addition to the facts stated in the first, that the judgment was obtained by fraud.

I am rather inclined to think, that the first plea is bad, for want of an issuable averment, that although the title of the plaintiff might bo good, as between the plaintiff and the administrator, yet it was not so as to the creditors./. and *II. Lyne,*to whoso rights this defendant is substituted *;*a case which may be easily imagined. In such case, I think the general obligation of the judgment would be admitted, but at the same time avoided. I cannot believe the rule to be, that because A and B are contesting their rights to certain property, that the rights of all others are suspended, or their hands tied, so as to prevent them from exercising their rights in the usual and ordinary way *;*and that a reasonable assurance of satisfaction is given to the plaintiff, by making bis judgment conclusive upon, all who are parties, or privies in the proper sense of the word, not upon quasi privies also, who possess some but not all the qualities of a privy. The rule may be, and^ in this case, I think is *337founded, upon those qualities of a privy which the defendant in this case, without the averment before mentioned, does not possess. I think however, that the second plea is very clearly good, for neither justice nor policy requires that the rule should embrace fraudulent or co-vinous judgments. It is said, that the defendant is es-topped from alleging the fraud, as much as the party himself. No person can be concluded by any act, not • even his own, from averring a fact, which renders a thing null and void. Estoppels conclude from averments, contrary to existing causes, not those which have passed away. And if the truth could not he shown, to avoid a transaction, or rather to show it to be null, it would be the easiest thing to protect the most unlawful transaction, by recitals or acknowledgments in a deed. The reason a party to a fraudulent act cannot avoid it by Showing the fraud is, because notwithstanding his fraud, it is binding on him if he be a party. It is not fraudulent, and therefore not void as to him. For a man cannot be guilty of a fraud on himself, and those who came in under him are affected in like manner. But one wild comes in, not under him, but clothed also with the rights of a creditor, is not concluded. Even in cases where the party comes in entirely under another, he may make an averment which the other could not, if it goes to annul that from which it is contended the estoppel arises. A person makes a fradulent conveyance of his land; lie cannot allege that it was fraudulent. Why? Because oven if it is, it binds him. He afterwards conveys to another *bona fide,*that is, for value. The vendee, altho’ coming in under the vendor, may. aver the deed to be fraudulent. Why? Because it avoids it as to him. I have considered the demurrer although a general one, not so much as admitting the fact of fraud, as controverting the defendant’s right to allege it; which is the effect of a general demurrer, where the cause of the alleged estoppel appears upon the record. I think there should be judgment for the defendant.

But a plea, that the judgment was con-fessedto defraud the creditors of the original defendant, is good upon general demurrer'.

Hall, Judge.

I think it is not necessary in this case to raise a question on the doctrine, that the privy in es-*338fate, from a person against, whom a suit is pending, and a judgment is afterwards obtained, is bound by that judgment. This is not the situation of the defendants. They deny that they claim title under *John*Holloway, If they do not, they are not subject to be called upon in this proceeding. It only professes to bring in privies under *Holloway,*or persons having no title at all. They plead that they are *bona jide*purchasers under an execution which issued against *John*Holloway, as administrator of *Thomas Falconer*deceased. Of course, *they claim*the property as belonging to the estate of *Thomas Falconer.*They further plead, that the judgment obtained against *John Holloway*was obtained by fraud. If this were the case, surely it ought not to be obligatory upon them. These pleas the demurrer admits. - The consequence is, I think, that judgment should be entered for the defendants.

IturriN, Judge, dissented, but delivered no opinion.

Per Curiam. — Judgment reversed.