MOORE et al. vs. BARCLAY et al., 23 Ala. 739

GIBBONS, J. The cross-assignments of error are, as wo understand, withdrawn by the defendant in error, and conse - quently it does not become necessary to consider them in tho present opinion. Indeed we could not consider them on tho present appeal, as the dissolution of the injunction alone can be considered in the present state of the record. The record before us presents a question certainly novel in this court, and by no means free from difficulty.

In the case reported in 16th Ala., the question was, whether the injunction was properly dissolved on the coming in of the answer; in other words, whether the answer did away with the equity of the bill. The court below decided that it did, and dissolved the injunction. From this decision an appeal was taken to this court, when it was held that the court below decided the law incorrectly, and the case was reversed. On the final hearing of the same cause, the court below decided that the complainant, on the case made, was not entitled to relief, and dismissed the bill without prejudice.

On appeal from this decision to this court, it was affirmed. Here, then, we have two decisions of this court in what is apparently the same case, directly the opposite the one to the other, [f either, which is to be regarded as authority in the ease now presented 1 Our decision ought to be in favor of the one which is to be regarded as authority in the present case. If both are to be regarded as of equally binding force upon the court, then, balancing each other as they do, we should feel at liberty to view the case now presented upon the present record as for the first time, and to decide it accordingly.

This latter view we consider as correct, so far as regards the binding validity of the two former decisions. Let us see, then, how the case stands upon principle, independent of authority.

In the plaintiff’s bill, as we understand it, are presented two facts, Avhich, taken together, constitute the main equity of his bill: the one, that the judgment confessed, and sought to be enforced by the execution enjoined, was so confessed upon the distinct understanding and agreement that said judgment should not be enforced unless the said Spence should call upon the defendant for the amount of his bid, and until such call made by Spence the judgment did not in fact become due ; the other fact is, that the execution entitled-to the money arising from said bid, viz., that belonging to the Branch Bank at Montgomery, was owned and controlled by the complainant, so that he could at any time stop the collection of the money on said bid, and if it was paid by complainant to defendant, and by defendant to Spence, it would have to be paid by Spence to complainant as the rightful owner of the money, and therefore he ought to be permitted to set-off his right to receive the money from the sheriff Spence against the defendant’s right to receive the same from him, the complainant.

The answer of the defendant denies positively the first of these facts, and asserts that the judgment is due, and was so at the time it was confessed, and that the same was to be paid in any event, unless the complainant would procure the receipt of Spence for the money, and this was confessedly, to the defendant the same as money; but that the complainant failed to do this, and let the matter rest until the defendant had paid Spence himself. The other fact the answer does not positively deny, except upon information and belief, and calls for proof of its existence.

We readily concede that these two facts of the bill, taken together as true, constitute an equity which would save it from being demurred to successfully ; and whilst we readily concede that there is no necessary connection in the nature of things between the two facts, which renders them dependent the one upon the other, for tho purpose of constituting an equity, yot it becomes important in the present case to inquire whether the bill with the fact which is denied by the ans wer stricken out, and containing only the other leading fact relative to the complainant’s being the proprietor of the execution represented by the Montgomery Bank, to which the money bid by the defendant was due, would contain equity.

The moment the inquiry assumes this shape, we have at once presented the following case : The complainant, owning a judgment in favor of the Branch Bank at Montgomery for upwards of $1000 against Wm. H. Moore, his father, which is entitled to the unpaid bid of the defendant to Spence, goes into court and confesses a judgment in favor of the defendant for about $1000, without any qualifications or reservations whatever, and that too fully cognizant of all the facts appertaining to the transaction and every part of it.

The bill i tself shows that the complainant had in fact been the proprietor of the Montgomery judgment and execution since some time in 1842, and the judgment was confessed in 1844, and with a full knowledge that the purchase money on said- bid had not then been paid.

No charge is made of concealment, no misapprehension of facts, no deception practiced in any manner whatever.— The question now arises, could a court of equity, any more than a court of law, give any relief against a judgment confessed under such circumstances 7 Would not a court of equity be bound to say to the complainant, as would a court of law, You have made your own case for yourself, by your own acts freely and voluntarily done, and you are estopped from denying that a debt is due, which you have solemnly confessed in open court was owing to the defendant; in other words, the confession of the judgment would be a waiver of all defences existing to the debt anterior to the time of such confession, and that judgment could only be affected by some equity arising subsequent to its confession, or by some fraud in the procurement of such confession.

T his fraud is charged in the bill, and denied in the answer, and it must therefore be viewed by this court as a confession of judgment freely and voluntarily made without fraud or collusion on the part of the defendant.

This view of the bill and answer, as presented to this court, in our apprehension, leaves the bill when considered with the answer without equity; in other words, the answer has so far denied the allegations of the bill as to leave it without equity, so far as respects the remaining facts not denied by the answer, and we consequently concur with the Chancellor in his views that the injunction ought to be dissolved on the answer. It follows, therefore, that the decree of the Chancellor is affirmed. Chilton, C. J., having been of counsel, did not sit in this case.