Hall against Hamlin et al., 2 Watts 354

Prut Curiam. It is not to be doubted that a judgment may be collaterally impeached for fraud; and the principle seems to have been admitted in the abstract. But the nature of the circumstance relied upon to establish the imputed fraud seems to have been misapprehended. A father had conveyed his land to his son-in-law, on certain trusts, for his daughters.

To show that the father was indebted at the time, and that the settlement was consequently fraudulent, one of his sons produced a judgment, confessed by his own mother as executrix of his father, on a bond to himself for 830 dollars; on which the land was taken in execution and purchased by the son.

To rebut the effect of1 this, the trustee for the daughters produced a judgment in favour of the father for 7500 dollars, of which a part was to be applied to the payment of certain debts ; and showed that the executrix, at the time she confessed the judgment to the son, acknowledged satisfaction of the judgment to the father. Now this may, in fact, have been perfectly fair, as she may have known the one to be an existing debt, and the other to be paid or not demandable.

But it is certain that if, at the date of the conveyance, the father’s debt to the son were at least counterbalanced by an actual debt from the son to the father, the latter could not, for that cause only, be said to be indebted within the 13 Elk.; and that if the executrix committed a double devastavit, to favour one of her children, by confessing judgment on a bond to which there was an available defence, and at the same time acknowledging satisfaction on a judgment without having received what was due on it, she was justly obnoxious to the charge of fraud.

But the judge was of opinion that the consideration of the judgment could be inquired into only by the court in which it was confessed ; and this was clearly an error, as want of consideration would be powerful evidence of collusion. But putting intentional fraud out of the question, the jury ought still to take the circumstances into consideration, in order to ascertain whether the father was, in fact, free from debt at the date of the conveyance, notwithstanding the subsequent acts of his executrix.

Her competency as a witness, however, does not seem to be affected by interest, or her relation to the parties; for she can claim nothing on the land, whether it be-recovered, or remain in the hands of the defendants. Judgment reversed, and a venire de novo awarded.