STILES et al. against BRADFORD, 4 Rawle 394

The opinion of the court was delivered by Sergeant J. [Who after stating the principal facts of the case, proceeded as follows.] — 1. On the trial of this cause in the court below, the defendants Harbert and Caldwell offered in evidence a deposition of Thomas T. Stiles, which had been taken on behalf of the plaintiff and read by him on the argument of the rule to shew cause why the feigned issue should not be directed, to try the plaintiff’s right to the money. But it was rejected, because Thomas T. Stiles was then in court, and could be called by the defendants as a witness.

It is now contended, that the defendants had a right to use the deposition, inasmuch as it had been produced and read by the plaintiff on the hearing of the rule; and the case of Maclay v. Work, 10 Serg. Rawle, 194, is relied on, where it was held, that if a party has produced a letter in evidence at a former trial, it is competent evidence for the other party at a subsequent trial, the previous production of it being considered as an admission of its competency.

This deposition seems to have been taken under one of the rules of the District Court, which requires, that on all motions or rules to show cause, on the hearing of which facts are to be investigated, the testimony shall be taken by deposition ; and no witnesses are to be examined at the bar, but by special and previous order of the court; so that the taking of the testimony by deposition, in this case, was not altogether a voluntary act of the plaintiff, but required by the rule of court, for the more easy and expeditious despatch of business.

In this it differs from the case cited, where the production of the letter was entirely a voluntary act of the party. But there is a still greater difference. Evidence by deposition, on a trial at common law, is of a secondary character, and is therefore, encountered by a rule of law, which forbids such evidence, when better evidence exists, and is in the power of the party. The oral testimony of the witness in the presence of the court and jury, was much better evidence than his" deposition could be; and as it was in the power of the defendants, they were bound to resort to it.

They could not substitute a kind of proof inferior in its nature. It is not easy to perceive a better reason for allowing a deposition under such circumstances, than there would-be to permit a party, when a witness was present, instead of calling him, to produce evidence of what that witness swore on a former trial when called by the opposite party, which would scarcely be attempted.

Perhaps, the reading of the deposition might be deemed an admission of the competency of the witness, so far as respected existing objections on the side of the party reading it, but it cannot be deemed such an admission of the contents of the deposition as to supersede the usual and salutary rule, that the best evidence in the power of the party must be given. There appears therefore no error on this point. 2. The defendants Harbert and Caldwell, proposed to inquire of a witness, what was the consideration of the notes and judgments of the plaintiff) but the court overruled the evidence.

The issue directed by the court was, to fry the right of T. Bradford to have and receive according to the amount of his liens, the moneys in court, — and it is added, that the defendants under the aforesaid issue, are to be entitled to the benefit of any question that may arise in relation to the lien of a judgment of revival, or under the original judgment. The argument of the defendants now is, that under this agreement, they had a right to inquire into the validity of the judgments of T. Bradford, ■ and to travel into the original cause of action on which they were founded.

If that was the intention of the defendants, it is by no means expressed in such language as to warrant the construction contended for. The words of the agreement would seem only to justify an inquiry into the lien of the judgments, and not into the validity of the'judgments by which the lien was created. The object of the parties appears to have been, merely to try the right to the moneys in court under the judgments. On general principles, a judgment is binding and conclusive until reversed or set aside by a legal proceeding.

It cannot be collaterally questioned by third persons, except on the ground of fraud and collusion in the procuring or entering it, which was not alleged here. If the court below had so far a control over a judgment in their own court, as to have permitted subsequent judgment creditors to inquire into the original cause of action on which it was obtained, that permission should clearly appear to have been granted; otherwise the plaintiff would be taken by surprise.

But it is very questionable whether the court below could or would have authorized-such an inquiry, where the judgments wereobtained years before, in an adverse proceeding, and afterwards duly revived. On the issue, however, the court below was right in refusing to admit the evidence. 3.

But the main question in the cause was that contained in the exception to the charge oí the court, and their answers to certain points proposed by the counsel for the defendants, Harhert and Caldwell, which may be summed up thus: — that the property having been sold under a mortgage to the American Fire Insurance Company given by Robert Stiles, the moneys arising therefrom could only be applied to pay judgment creditors.

The court below charged the jury, that if the property, though held in the name of Robert, really belonged to Thomas, and the mortgage was made by Robert at his instance, and for his benefit, and it was so understood by ail the parties, Thomas was the real mortgagor, and a judgment creditor of Thomas was entitled to the surplus proceeds in preference to a subsequent judgment creditor of Robert, who, at the time of his judgment, was acquainted with all the circumstances of the ownership of the property, and of its being held for the purpose of evading the prior judgment.

It is well settled in this state, that a judgment is a lien on the equitable estate of the debtor: and for want of a court of chancery, this equity is enforced bv our courts wherever it can be accomplished in the ordinary modes of administering justice. Thomas T.

Stiles, being in equity the sole owner, and the real mortgagor of the property, a judgment against him was a lien upon it as between the parties, and third persons lending their money, and taking a judgment against Robert, with full notice of this equitable interest, must be considered as affected by it as fully as Robert himself was, and cannot be permitted to allege either the land or its proceeds to be the property of Robert, against their own knowledge, and to the prejudice of a prior judgment creditor of Thomas.

It is insisted, that the only remedy of such judgment creditor is, to give notice at the sheriff's sale of his claim, and to enforce it by another execution against the, land. But under our system of sales of land by execution, he who has a prior lien on the land, (with the exception of mortgagees, who are within the provisions of the late act of assembly.) has a right to resort for the payment of his debts, to the fund raised by the sheriff’s sale, and brought into court. The money stands in the place of the land. In the case of the Commonwealth for the use of Gurney's Executors v.

Alexander et al. 14 Serg. & Rawle, 257, money came into the hands of the sheriff, under a sale of land belonging to Maxwell, on a judgment against Maxwell, but the land had been purchased by Maxwell from Patton, and while Patton owned it, Gurney had obtained a judgment against Patton, which continued a lien at the time of the sheriff’s sale : and it was held, that the sheriff was bound to pay Gurney's judgment out of the the moneys in his hands, and he and his sureties were made responsible for not having done so.

In that case, the same argument was used that is urged here — that nothing but the rights of Maxwell Could be sold, and, therefore, no part of the proceeds of the sale could be applied to any other purpose than the discharge of judgments against Maxwell, and the surplus, if any, to be paid to Maxwell himself. But, says Tilghman, C. J. delivering the opinion of the court, “ What was the right of Maxwell? He had a right to the fee simple, subject to all liens by virtue of judgments, either against himself or those under whom he claimed.” The right of Robert Stiles in the present case was no better.

In fact it would appear by the evidence, that he neither had nor pretended to have any right whatever in the property: he was a mere instrument to effect the purposes of Thomas T. Stiles, to whom the property belonged, who directed its various modifications, and whose character was known to all the parties dealing with them. It would be unjust, if, under colour of being creditors of Robert, who had no claim whatever to the property, subsequent judgment creditors were to be preferred to prior judgment creditors of Thomas, who was its sole owner.

That 'could only take place when such creditors lent their money to Robert without notice: they would, in that case, stand in a different situation, and might claim in equity to hold discharged of a latent trust. 6. Another error assigned in the charge of the court is, on stating to the jury, that the election of the plaintiff, on the thirtieth of September, 1829, to look to the interest of Thomas T. Stiles, did not bind him or impair his right to recover.

It appears that at that time the sale took place under the execution issued by Harbert and Caldwell, on their judgment against Robert Stiles, oí the leasehold property at Gloucester ferry, and T. Bradford gave notice at the sale, that his judgment was a lien on it as the property of Thomas T. Stiles. It does not appear that any further steps were taken after this notice. Correctly speaking, the judgment was not a lien on a leasehold interest, and if pursued would have been ineffectual. For aught we know, this may have been the reason why the claim was abandoned.

At any rate, a mere notice of this kind, vesting no right, and incapable of yielding any satisfaction, cannot be considered as an election to resort to that source for payment, and to waive the right to a fundan which the plaintiffhas a good claim, and whjch is available in payment of his debt. The notice, therefore, would •seem to be of no importance on this issue, and its bearing was rightly ¡stated by the court below. Errors were also assigned by Mrs. Stephens, a judgment creditor of Robert Stiles, who declined taking

part in the issue below, that the court had no right to direct a feigned issue : and the same objection has been made on behalf of Ijarbert and Caldwell. The ground on which this is placed is, that the money being raised by the sale of the estate of Robert Stiles, the court had no right to direct an issue at the instance of the creditors of Thomas T. Stiles. On the principles, however, mentioned before, this is an incorrect mode of stating the case. The creditors of Thomas T.

Stiles had a claim on the fund, and the powers of the court, under the act of assembly of April, 1827, were ample to extend to them relief in the shape of a feigned issue to settle doubtful points. We are of opinion that the judgment foe affirmed. Judgment affirmed.