Parish vs. Gear, 1 Pin. 261

Dunn, C. J. This is an appeal from a decree of the district court of Iowa county, sitting as a court of chancery.

A bill of complaint was exhibited in said court by the appellee, Parish, against the appellant, Gear, setting up that the said Gear, by his attorney, had fraudulently obtained on the law side of said court, a confession of judgment against him, by false promises and representations,for the sum of $1,562.58, on an account, or the balance of an account, which had been settled with, and secured to said Gear by a bond and mortgage executed to him by Parish in April, 1836, more than a year before the confession, and that he has had no dealings with Gear since, and he calls on him to answer if he has; which mortgage was discharged and paid off by Parish to Gear about four months after date, being the time the money secured by said mortgage became due, when said Gear, on demand, refused to give up said mortgage as he should have done.

That in October, 1837, to obtain said confession, Joseph P.

Hoge, attorney for Gear, promised said Parish, if he would confess judgment for the said $1,562.58, the balance of the account claimed, that Gear would immediately surrender the mortgage to be canceled; and that owing to the peculiar situation of him, the said Parish, at the time, in relation to some of the mortgaged lands, he having sold the same and received a part of the purchase money, and being bound to make conveyance, did consent to confess judgment as aforesaid, not admitting that any balance was due Gear, but influenced solely by the great desire he had to secure that to which in law and equity he was justly entitled, the surrender to him of the mortgage, that he might convey, as he was bound to do, by good and sufficient deeds or conveyances.

That said Gear falsely, fraudulently and improperly refused to deliver up said mortgage in pursuance of said promise so made by Ms attorney, and insisted on by Parish in good faith; and the bill concludes with a prayer for an injunction against said judgment at law, and that upon the final hearing, the said court of chancery may decree a perpetual injunction against said judgment at law, or decree to said Gear so much as upon proper proof may be justly due to him, or such .other relief as to equity may appertain.

The defendant Gear in his answer denies that their fall accounts were settled in 1836, and a mortgage given to secure $4,200 only, as the entire amount due Mm at the time, and alleges that it was not only given to secure said $4,200, but such other sum as might be due from Parish to him, and that he has found since said mortgage was given, that said Parish owed Mm $5,700. That the mortgage was given but never acknowledged and recorded; that the $4,200 were paid to him bj Parish’s agent, which he applied to the credit of Parish’s account.

He denies that said $4,200 was received in full satisfaction of said mortgage or of the debt due by Parish to Mm, but that there was a balance then due of more than $1,500. He admits that his attorney, Joseph P. Hoge, Esq., called on Parish in October, 1837, for a balance of $1,562.58, and that Parish confessed judgment for that sum at the time set forth; but denies that it was in any wise obtained by fraud, either on his part or on the part of his attorney,. Joseph P. Hoge, Esq., but was the free and voluntary act of Parish.

He admits that he is informed and believes that his attorney consented that said mortgage should be surrendered up to be canceled, and avers that he has ever been ready and willing, although he told his said attorney that he did not tMnk the mortgage should be surrendered until the debt was paid, and that he has never since been able to find said mortgage. He denies that the agreement with his said attorney, Hoge, was the consideration that induced Parish to confess judgment, but insists that it was because he believed the debt to be an honest debt, and that a stay of execution for six months was agreed on.

The defendant then set up new matter, not responsive to any of the charges in the bill. Upon this bill and answer and replication, the mortgage and bond of Parish to pay the $4,200, receipt of payment by Parish, and the depositions of Turney and Hamilton, taken on the part of complainant Parish, this cause came on to be heard, and upon hearing, the court decreed a perpetual injunction against the judgment at law in favor of said Gear against said Parish. It becomes the duty of this court to review the cause, and affirm or reverse the decree of the district court.

The principle so long recognized in equity proceedings, that fraud in their procurement will taint and destroy the obligatory effect of all parol contracts, deeds and even judgments, is too well established to admit of discussion upon the soundness of the doctrine at this day. The primary object of the complainant’s bill in this cause, is to avoid the effect of the judgment at law against him, by showing fraud in its procurement. A court of equity is the only place where he can be relieved.

There is not, apparent on the record of the confession of the judgment at law, any error in law; if there were, confession takes away error. The doors of the courts of law are barred against him, on account of the rigid and inflexible rules which govern in cases at law. The charge of fraud in this case gives jurisdiction to the court of equity, and when parties are properly in this court, it may decree finally on all the matters connected with the subject-matter of the fraud' charged.

This, then, presents a case for the relief prayed for, secondly for the surrender and cancellation of the mortgage, and Gear’s right to recover for a balance on an account settled and closed by the bond and mortgage. We must test the truth of the allegations of complainant’s bill by the evidence in the case, and this consists of the defendant’s answer to the matters charged in the bill, as of his own knowledge, the written instruments filed in the cause, and the depositions taken and read below.

The defendant’s direct answer, as of bis own knowledge, is proper evidence, and must be weighed and considered and will prevail, unless contradicted by two witnesses, or one with corroborating circumstances. If a defendant sets up new matter, not in answer to any of the charges in the bill, it must be supported by testimony aliunde, or it cannot avail him in his defense, but may prejudice, from the appearance it bears, of an attempt to equivocate, by leading off from the gist of the matters he should answer.

If it appears from the answer of a defendant, that he discredits his answer by contradictory, unreasonable, irreconcilable statements, or by statements contradicted by written instruments on the same point, or by positive denials of charges of which he could have no personal knowledge, then the testimony of one disinterested witness will preponderate over the weight of the testimony contained in his answer, and against the answer. These principles are recognized in Mitchell v. Maussin, 3 Monr. 185; Whitington v. Roberts, 4 id. 173; Young v. Hopkins, 6 id. 18; Paynes v. Cole, 1 Munf. 373; Hart v.

Teneyck and others, 1 Johns. Ch. 62, and authorities referred to in note (

a) page 90.

Under these rules a maj ority of this court have considered the defendant’s answer herein which is all the evidence in his favor in the cause, and have opposed thereto the depositions of Turney and Hamilton, disinterested witnesses, and the mortgage and bond referred to, produced by the defendant at the hearing, and the receipt of payment, and are of opinion that the charges of the complainant in his bill, are sustained by proofs preponderating over the answer of the defendant, which does appear to us to be discredied upon its face in part, and by written instruments in other respects, leaving the complainant’s charges unimpaired, undenied and supported by the testimony.

The defendant, as the whole matter was before the court of equity, had ample time and opportunity to introduce proofs to sustain the justice of his account, and show that the items claimed were omitted by mistake or otherwise, at the settlement of 1836, when the bond and mortgage were given to secure the payment of the matters of account then claimed and stated to be due to defendant by complainant; but he slept and introduced no testimony whatever. Therefore, on a review of the whole cause, we are of opinion that the decree of the district court herein be affirmed with costs.