#### ALFRED HAFNER *vs.*JOHN IRWIN & AL.

A creditor must establish his debt by judgment, before he can raise the ques-tiion of the validity of a conveyance made by his debtor.

This judgment is only *prima facie*and not conclusive against a party claiming under the deed, for he may shew that the recovery was effected by covin and collusion, for a pretended and not a real debt.

Although a warrant may have been filled up by a constable, after the magistrate signed it, and this may be improper, yet the judgment, regularly rendered thereon, cannot, if at all, be collaterally impeached, as being void, for such defect in the leading process.

A witness cannot, by creating by his own act a subsequent interest, without the concurrence of the party calling him, deprive the latter of his evidence. Much less can he do so by agreement with the opposite party.

The casos of *Rhem.*v *Jachson,*2 Dev. 187, and of *Hafner*v *Irwin,*1 Ired. 490, cited and approved.

Appeal from the Superior Court of Law of Mecklenburg county, at Spring Term, 1844, his Honor Judge Battle presiding.

This was the same case, which was before the Supreme Court at its June Term, 1841, and reported in the first vol. of Iredell’s Reports, page 490. The evidence given upon this second trial was substantially the same as that stated in the printed report referred to, except that the witness Cross was not examined on the latter trial, and it did not then appear, that five of the warrants, upon which the defendants’ judgments and executions were obtained, had been signed in blank.

*530When the witness, *Leroy Springs,*was *offered by the*defendants, the plaintiff’s counsel produced a written instrument, by which it was agreed between the plaintiff and the witness, that another suit, which the plaintiff had against the witness, should abide the issue of the present, and it was objected, that the witness was interested to defeat the present suit, and therefore incompetent. This agreement was entered into since the last trial, and the defendants were not parties to it, and they therefore contended, that, having once acquired an interest in the testimony of the witness, he could not disqualify himself, by malting such an agreement with the plaintiff. Of this opinion was the court, who permitted the witness to be sworn and examined. The plaintiff’s counsel contended, 1st, that the deed in trust, under which they claimed, was executed *bona fide,*and with the sole intent to secure the debts therein named; but if it were not, then, *secondly,*that it was good between the parties, and as to all persons but creditors and purchasers, and that the defendants, Elms and Irwin, had not shewn themselves to be either; that the judgments and executions produced by these defendants were not sufficient evidence of their being creditors, even if they were not tainted with fraud, but they were at all events obtained by fraud, and therefore void ; and that, at least, some of them were *null*and *void,*because the warrants upon whichjhey were obtained had been signed by the magistrate in *blank.*

The defendant’s counsel contended, that they were creditors, of which their judgments and executions furnished sufficient evidence; that they were fairly obtained, but, if they had not been so obtained, the plaintiff’ could not impeach them in this collateral manner; they then insisted, that the deed in trust, under which the plaintiff claimed, was fraudulent and void; 1st, because it appeared from the testimony of the subscribing witness, that the deed was executed with an understanding, that it was never to be registered. 2nd, because it appeared from the testimony of the other witnesses, fhat it was executed upon the condition of being kept secret *531in order to enable Dwight, the grantor, to escape and elude the payment of his other creditors. 3d, because it appeared from the testimony, that the deed was executed for the ease of the debtor, as it was not to be registered and put in force, unless the other creditors should press their debts. The Court instructed the jury, that no persons could impeach the deed, under which the plaintiff claimed, but creditors or purchasers ; that the judgments and executions produced by the defendants, Avere sufficient evidence of their being creditors, unless the objections urged against them by the plaintiff Avere sustainable in laAv, and in fact sustained by the testimony, that as to a portion of the Avarrants there Avas no evidence of their having been signed in blank; and as to the others, though warrants signed in blank by a magistrate and after-1 wards filled up without his knoAvledge by another person, Avere mxllities, yet the plaintiff could not take advantage of it in this collateral manner; that the evidence introduced in this cause for the purpose of impeaching the judgments fox-fraud, was material only so far as it tended to shew that the defendants had in truth no debts against ÜAvight, and that if the jury believed Dwight owed the defendants nothing, and that the judgments were all a sham, then, they could not impeach. the plaintiff’s deed, but if the defendants Avere found to be fair *bona fide*creditors, then it became material to en-quire into the validity of the plaintiff’s deed ; that if the jury should believe, from the testimony of the subscribing witness, that the deed Avas executed upon the condition, that it Avas never to be registered, it Avas void; that if they believed, from the testimony of other Avitnosses, that it was executed upon the condition of being kept secret, until the debtor Dwight could escape, and thus elude the payment of his other debts, or for the ease of the said debtor, upon the understanding that it Avas not to be registered and put in force, unless the other creditors should press their debts, it was in either case fraudulent and void, and the plaintiff could not recover. But, if they believed the deed was exe-. cuted solely Avith the view to secure the debts named there*532in, and for no purpose of ease or favor to the debtor, it was good. The -jury returned a verdict for the defendants, and ^ *J*the plaintiff moved for a new trial, because of the introduction of improper testimony, and for misdirection in the charge to the jury.

On the trial, no objection was made that the notes, on which the defendant’s judgments were obtained, were not produced, but it was taken after the testimony was closed, in the argument to the jury. The motion for a new trial was over-ruled, and the plaintiff appealed.

Hoke, *Osborne and Boyden*for the plaintiff,

as to the disqualification of the witness, Springs, cited *Forrester*v *Pe-*gram, 1 Maulé & Sel. 9. 3 Stephens’ Nisi Prius, 1730.

*Caldwell*& *JMewander,*for the defendant,

upon that point, cited *Bent*v Baker, 3 Term Rep. 27. *Barlow*v Powell, Skinner, 586. *Chess*v Chess, 17 Sergt. <fe Rawls, 409. 2 Stark. Ev. 750, 751. 1 Stark. Ev. 118,119. Peake on Ev. 158.

Ruffin, C. X

On the questions affecting the validity of the deed to the plaintiff) the directions to the jury conform substantially and almost literally to the opinion given by this Court on thorn, when the case was here before. *Hafner*v *Irwin,*1 Ired. 490. They are of course, now approved by us.

Upon the other points stated in the case, our opinions also concur with those of his Honob.

A creditor must establish his debt by judgment before he can raise the question of the validity of a conveyance made by his debtor. As a general -creditor by contract, he has no right to the property, nor lien for the immediate satisfaction of his debt. He must therefore proceed to judgment and execution, before he can bring into controversy, at law, the liability of the property to pay the sum recovered by him. Of necessity, the judgment is evidence of the recovery, and shews, that thereby the defendant became debtor to the plaintiff therein for the sum recovered. It is -true, that the judg-*533xnent is not conclusive on the party claiming under the for judgments may be fraudulent, as well as deeds. It is therefore open to the grantee in the deed to shew, that the recovery was by covin or collusion between the plaintiff and defendant therein, for a pretended and not a true debt. But, in the first instance, the judgment, by itself, is competent and sufficient, and indeed, indispensable proof of the debt recovered. Even if the objection were well founded, that the judgments rendered on warrants, which were not filled up when signed by the magistrate, are invalid, it would not help the plaintiff in this action. Five of the judgments were not subject to that objection; and they constituted a justification for the seizure and sale of the property, and bar this action of trover. But we think it clear that the objection is untenable. Although the warrants may have been filled up by the constable after the signature of the magistrate, and although that may have been improper, yet the judgments, regularly rendered thereon, cannot, if at all, he collaterally impeached, as being void, for such defect in the leading process. If the party could *per directum,*avail himself of this as an error, yet he could not, and much less can third persons question the sufficiency of the judgment incidentally. Not to insist, that this is a rule of reason and of the common law, it is sufficient, that the Legislature has expressly enacted it. By the Rev. St. c. 31, s. 108, it is provided, that every judgment by a magistrate, having jurisdiction of the subject, shall he in force until reversed according to law.

Upon the admissibility of the witness, Leroy Springs, the opinion of his Hostor. is supported by the well known general rule, that a witness cannot, by creating by his own act a subsequent interest, without the concurrence of the party calling him, deprive the latter of his evidence. Much less can he do so by agreement with the opposite party. The case of *Forrester*v *Pigon,*1 M. & S. 9, woald seem *to*the contrary. But the case is not satisfactory *-*for it does not appear to have been finally decided, hut was sent back to a second trial, in order to ascertain the facts. At all events, it *534is not sufficient to overturn tbe established general rule laid down in all the best writers, and received constantly in the Courts of this State, and sanctioned by the approbation of this Court, in *Rhem*v Jackson, 2 Dev. 187. To sustain the objection, would open a wide way for tampering with witnesses, so as to deprive parties of evidence material to their interest, and to which they had a right.

Per Cukiam,, Judgment affirmed.