David Munn vs. Noah Worrall, 16 Barb. 221

S. B. Strong, J. The plaintiff has filed his complaint in this suit to impeach a decree of the late court of chancery, and which was eventually, pursuant to a remittitur from the court of appeals, made a decree of this court, on the ground of fraud. He asks for a perpetual injunction, restraining the defendant, in whose favor the decree had been made in the original suit, from enforcing it, but does not seek to set it aside.

It may be doubted whether he calls for the appropriate remedy; as the object of such a suit is to restore the parties to their former situation, whatever their rights may have been, (Story's Eq. Pl. § 426;) whereas a perpetual injunction would forever restrict the defendant from establishing any claim to the land in controversy between the parties, which he might have and prove, notwithstanding such of the charges contained in the complaint as could be in any manner available to the plaintiff in this suit.

But as that question, if it be one, is peculiarly proper for the consideration of the court on the final determination of the action, and was not (probably for that reason) discussed on the argument, I shall not examine it here. This peculiar action is not of frequent occurrence, and there is not much in the books in reference to the principles applicable to it.

As defined by Judge Story, in his commentaries on Equity Pleading, (§ 426,) the proceeding is “an original bill in the nature of a bill of review.” A bill of review, according to the ordinances of Lord Bacon, might have been brought, first, for error in law apparent in the body of the original decree; secondly, upon discovery of new matter; and thirdly, by the special license of the court upon new proof that is come to light after the decree, which could not possibly have been used at the time when the decree was made.

The first of these grounds is inapplicable to bills to impeach a decree for fraud, but the other two apply and limit the action; and there is the further restriction that the new matter, or new proof, must be relative to the main question, as to fraud, involved in the renewed controversy. According to the rule prescribed by Lord Bacon and approved by many of his successors, where a bill of review is brought on the ground of newly discovered proof, it can only be done by the special license of the court. The reason is, that the practice, unless it should be restricted, would be subject to great abuse.

Accordingly, it has been decided that such bill cannot be sustained on this ground where the newly discovered evidence relates to a matter of which the plaintiff was apprised in season to have enabled him, with the exertion of reasonable diligence, to bring the same at first before the court. (Young v. Keighly, 16 Ves. 348.) Chancellor Kent, in Livingston v. Hubbs, (3 John. Ch.

Rep. 124,) decided that a bill of review could not be sustained on the ground of newly discovered evidence which would go to impeach the character of a witness previously examined, or which would be cumulative as to a fact which had been litigated, or which might have been discovered by the party complaining, had he used due diligence. These restrictions, and the reasons for them, are, I think, equally applicable to complaints to impeach a decree on the ground of fraud. Fraud cannot, of course, be excused, whether practiced upon a court or individuals.

Upon principle, a decree procured by fraudulent acts, representations or concealment, should not stand; and if a court could act ex mero motu, it should, when the fact should be duly established, at once erase the obnoxious proceeding from its records. But in all cases between parties litigant the question is whether the plaintiff is entitled to the redress for which he asks, not whether the defendant may have committed some wrong. Plaintiffs. must seek the appropriate remedy, and pursue the requisite means to obtain it, or they cannot succeed, however grievously they may have been injured.

It is not enough, therefore, for the plaintiff in this suit to show that a fraud has been practiced which has been injurious to him, to entitle him to the relief which he solicits. He must fail if he has let the time pass when it was proper for him to allege and prove -the -circumstances upon which -he -now -relies; or -if those circumstances do not support his present mode of procedure. These are familiar principles, founded on wise and necessary considerations, and should be strictly applied.

The first and principal charge in the complaint is that the present defendant and his father Henry Worrall concealed the alleged facts that Henry Worrall was the actual, while the defendant was the mere nominal, purchaser of the land in dispute, and that, while the defendant here was the nominal plaintiff in the original suit, such suit was instituted for the benefit of Henry Worrall, and that thereby he was enabled to be, and was a material witness for the plaintiff in that suit, and that his testimony was mainly instrumental in procuring the decree.

It is not averred in the complaint that the plaintiff in this suit was, at the time when the original suit was instituted, or when Henry Worrall was examined as a witness, ignorant of the alleged fact that Henry Worrall was the actual purchaser, or that such suit was instituted for his benefit, or that the now plaintiff was then unacquainted with, or has since discovered, any witnesses to prove such allegations.

Concealment by one who has, or may be supposed to have had, the exclusive means of knowledge, may, however, well imply ignorance in another, and I shall for the present consider the allegation in that way, although it would have been more satisfactory if the want of the information, from any source, could have been directly expressed.

It is apparent that the plaintiff had, previous to the institution of the original suit, been informed that Henry Worrall had been the active negotiator in the purchase of the land in dispute, and had substituted the name of Noah Worrall as the purchaser, in the articles of agreement. It was so stated in the agreement between Prall and Munn which was executed by them.

Munn also states, in his affidavit, that he at all times believed that Noah Worrall had no interest in the contract which was the basis of the original suit, but that on the contrary he, either by an express or an implied understanding with Henry Worrall, held such contract in trust for the said Henry Worrall. ■It is set forth in the affidavit of Edward J.

Strang, who is the son-in-law of Munn, a resident of the same place, and a brother of one of his counsel who was present at the examination of Henry Worrall, that in the summer preceding such examination Strang called on Noah Worrall and inquired of him whether an arrangement' between him and Munn could not be made, and the suit and controversy between them terminated, and that Noah Worrall answered that he had nothing to say or do about it, and that the deponent must go to Henry Worrall.

It is not stated that the inquiry was made at the request of Munn, or that the answer was communicated to him, but from the connection subsisting between him and this witness and the object of the proposed negotiation it is reasonable to infer both. Strang also states that shortly after this conversation was had, and before any testimony had been taken in the original suit, he was present at an interview between Henry Worrall, Noah Worrall and Munn, when there was a negotiation between Henry Worrall and Munn in reference to the damage done by the latter to the premises, after his purchase.

That Henry W orrail then claimed that such damages should be allowed to him, and proposed that he should release such damages, and that Munn should release all his right and claim to such premises to the said Henry Worrall; that this negotiation was carried on by Henry Worrall in his own name, and on his own behalf, as the owner of the said premises, and as entitled to remuneration for the damages done thereto by Munn, without reference to any right, title or interest of Noah Worrall therein; and that Noah Worrall, who heard the conversation, acquiesced in the right of his father to the land and damages, “-by remaining entirely silent on the subject.” Henry Beebe also states, in his affidavit, presented by the present plaintiff, that in the spring or summer preceding the examination of the witnesses, he heard Noah Worrall say that his father had purchased the land, and was about to build upon it, and prepare it for the brick-making business, and that within two months after-wards this deponent was informed by Henry Worrall that he had purchased the premises, and was going on to erect buildings there, for the brick-making business; and that he intended to build a house upon such premises, for a residence for himself and wife.

It is not stated that these conversations were at the time communicated to Munn; but Beebe was a resident of the same place, and the suit was then pending and no doubt known to him. It is reasonable to infer that some communication on the subject was made at the time, but the inference is too slight to influence judicial action.

If Munn supposed, or was advised, that the objection that Henry Worrall was the actual purchaser of the premises sold nominally, to Noah Worrall, would prove fatal to the original suit, and had information sufficient to justify his belief previously to, or at the time of filing his answer, he should have specially averred his information and belief, and relied upon the defense in that pleading.

If he had no reliable information upon the subject until his negotiation with Henry Worrall, mentioned in the affidavit of Strang, he should then have applied for, and would no doubt have obtained, permission to file an amended or a supplemental answer, setting forth the newly discovered grounds of his defense; or if it was unnecessary for him to set forth such defense in his pleading, he should have made exertions to procure additional proof, and at any rate have adduced that which was known to him when the testimony was taken.

A party who neglects to make a defense, known to him, at the time when it should be made, or to adduce evidence to substantiate it, of which he was then aware, or which he could have ascertained, with reasonable diligence, and in consequence of such neglect fails in the controversy, cannot subsequently renew it, upon the discovery of additional testimony to substantiate such defense. There may be cases in which a renewal of the controversy might, under such circumstances, subserve the cause of justice ; but the number could not be considerable.

If the door should be opened to let in such eases it would be difficult to close it. The practice would necessarily become general, and would be productive of intolerable abuse. If Munn, instead of interposing the objection founded upon the supposed interest of Henry Worrall in the subject matter in dispute as an absolute defense to the suit, was advised or con-eluded to use it simply to exclude the testimony of Henry Worrall, he was hound to prove and urge it at the time when that testimony was offered or adduced.

Confessedly he knew of the existence of the objection at the time, and had known of a witness by whom, as is now alleged in his behalf, the objection could have been proved. It is true that he states in his affidavit that he was not aware (meaning, no doubt, at the time when the testimony was taken,) that Strang was present at the interview between him and the two Worralls ; and Strang says that he did not mention the fact of his being present at such interview, to Munn, until recently, and long after the decree in the original suit.

Heither of them says that Strang’s presence was unobserved by Munn, at the time, and certainly a circumstance so unusual and strange is not to be inferred. Munn, no doubt, was aware of it then, and, although what took place was very material to his defense in a controversy then pending, and which he was endeavoring to settle, he may have forgotten it precisely at the time when it should have been remembered. His forgetfulness may have been the cause of the omission, but it by no means exempts him from the charge of inattention and negligence.

He must still be subjected to the application of the familiar maxim that vigilantibus non dormientibus leges subveniunt. In the case of Floyd v. Jayne, (6 John. Ch.

R. 479,) where an attempt was made to upset a judgment of a court of common pleas (which court was incompetent' to grant a new trial,) on the ground of subsequently discovered evidence to prove a new defense, it appeared that one witness had previously told the plaintiff (in the chancery suit) that he could have been of some service, and another had been present when the plaintiff in the common pleas had admitted to the defendant in that court the facts which would have established the proposed new defense, but it was apparent that the original defendant had forgotten these circumstances.

The chancellor said that “ he should have recollected that this [the last] witness was present. Due inquiry would probably have brought that conversation to his memory ; but it does not appear that he made any inquiry.

This appears to me upon the whole to be a very strong case of negligence before the trial; and there is no account of any effort or inquiry whatsoever, made by the plaintiff, pending the suit at law, to enable him to set up and support a plea of payment.” The chancellor refused to interpose in that case, although he was satisfied that the original claim which had been recovered in the common pleas had been paid, and the plaintiff there, who had acted as a confidential friend of the defendant, had fraudulently violated his trust; because the defendant had been guilty of negligence.

Several of the persons who made the affidavits presented in behalf of Munn, state conversations with Henry Worrall in which he claimed the land in controversy as his own. Some of these conversations were had before, and others after, the examination of Henry Worrall, and were communicated to Munn after the decree in the original suit. As Noah Worrall was not present when the alleged declarations of Henry Worrall were made, and the latter was not, at the times when the conversations were had, acting as the agent of the former, such declarations are not .competent evidence against Noah Worrall.

They can be considered now only as they might lead to, or show, the propriety of the exclusion or discredit of the testimony of an important witness in his behalf. So far as they would go, in reference to the testimony of Henry Worrall, they would be merely cumulative to what Munn might, but for his own forgetfulness and negligence, have adduced when the testimony was taken in the original suit.

They are objectionable too not only.because they consist of the recollections of conversations upon which but little reliance is usually placed, but the conversations were had in the absence of the party whose interests are to be affected. The will of Henry Worrall is more reliable, but it has only a remote bearing upon the allegation that he was originally interested in the purchase of the premises, and so far as it goes, as to that it is merely cumulative.

It appears to me then that Munn was remiss in not recollect-ing the presence of his son-in-law, Strang, at an important conversation in reference to the subject matter of an impending and serious litigation; in not making any exertions to procure information on a subject which would seem, from the depositions produced by him, to have been a matter of public notoriety among his friends and neighbors; and also in hot instructing his counsel (whose ability to elicit information from a reluctant, witness is proverbial) to question the Avitness upon this point when he Avas repeatedly and at distant intervals placed upon the stand. “ When an objection to the credibility or competency of a Avitness is known, it should be urged at the time of his examination.

If he should be interested his interest might, in most cases, be released and the witness then examined. If bias should be alleged, the witness might state facts which would disprove it, or shoAv that it could have no influence over his testimony.

But if the objection to a witness is not insisted on at the examination, and the party against Avhose interests he testifies is alloAved to reneiv the controversy, after a decision has been pronounced against him, (and particularly, as in this case, after the death of the Avitness,) he may inflict great injustice upon his opponent by depriving him <jf the testimony of perhaps an absolutely necessary Avitness, Avhose competency might have been established, had the objection been raised in due season, or discrediting evidence for color-able objections Avhich might have been satisfactorily explained.

Thus one party would gain by his oavu neglect, Avhile the other might suffer for a fault attributable solely to his opponent. If there was an understanding between the tAAro Worralls, at the time Avhen the articles of agreement between Noah Worrall and Brail Avere executed, that Henry Worrall Avas to be beneficially interested in the land in question, there is no evidence from which an inference can be legitimately raised that it was reduced to writing so as to make it legally available to Henry Worrall.

Neither is there any thing from which it can be inferred that the intended interest of Henry Worrall Avas fraudulently concealed, or concealed at all, by him, or the present defendant. From the depositions read in behalf of the now plaintiff Munn, it appears that it was disclosed by Henry Worrall in several conversations with William S. Holmes; by Noah Worrall to Henry Beebe in April, 1844; by Mary Worrall to the same person, within one month afterAvards, and again in the summer of the same year; by both of the Worralls to Munn himself, in the presence of Edward J.

Strang in the summer or early in the fall of 1844, and by Noah Worrall to Strang in the summer of the same year; by Henry Worrall to Lewis R. McKay within three or four weeks after the articles of agreement had been executed; by Henry Worrall in repeated conversations with Lewis Constant, the next season after the purchase was made, in which he spoke of the land as his, and conversed freely and openly of the uses to which he intended to devote it; by Henry Worrall to William H. Robinson, in the autumn of 1843; to Lewis W.

Young in the same autumn; to George Wesart before the latter had heard of the purchase, from any other person; and to D. B. Gardner in 1843 or 1844. It seems to me that these open, frank declarations, made to Munn himself, to his son-in-law, to several of his near neighbors, and to others, at various times from almost immediately after the purchase until the examination of Henry Worrall, effectually disprove the charge that his interest, actual or intended, was fraudulently concealed from Munn, or at all, for the purpose of enabling him to be a witness in the original suit.

The alleged ground for impeaching the decree first pronounced in the original suit is not only destitute of proof to support it, but is positively disproved. The other ground on which it is sought to impeach the decree is founded on the.allegation that Noah Worrall had, previously to his appeal to the court of dernier resort, conveyed his interest in the land in dispute to Henry Worrall, and that being no longer interested in the controversy he could not effectually prosecute the appeal.

The appeal by Noah Worrall was from a decree rendered against him in the supreme court, reversing the decree in his favor, made by the vice chancellor. By the revised statutes such appeal could be brought only by the party against whom the decree was made, during his lifetime, except in the eases of reversioners and remaindermen on the recovery of lands in suits against tenants for life or years. (2 R. S. 501, § 2.

Id. 605, § 78.) The code extends the right to any party aggrieved. (§ 325.) It nowhere says, however, and it would be difficult to prove, that a person against whom a wrongful decree has been made is not a party aggrieved. Even if he should have parted with the subject matter in controversy he may, and generally does, have some interest in his own costs, or as to the costs of his opponent. [Kings Special Term, February 21, 1853. S. B.

Strong, Justice,] But I think that this objection is unavailable to the present plaintiff, on the substantial ground that the plaintiff in the original suit was actually interested in the subject matter of that suit, up to the time when the decree was finally entered, in the supreme court. It appears from the affidavit of Noah Worrall and Bichard Busteed that the deed from Noah Worrall to Henry Worrall was not designed to be an absolute conveyance, and that it was not delivered to the grantee by the grantor, nor with his consent, but through a mistake.

Besides, if it had been designed as a present conveyance, and was fully and fairly delivered, it would not have proved any title or interest, as the grantor was not in possession of the land now in controversy, and it was then the subject of litigation in one of pur courts. (2 R. S. 691, § 5.) As the objection to the prosecution of the appeal by the present defendant is, under the circumstances, purely technical, and the party making it was in no manner prejudiced by the procedure, there is no reason why it should prevail, against the strict legal rights of the parties.

There is no evidence of any fraudulent design in what was done towards the proposed conveyance of the property by Noah Worrall to Henry Worrall, or to show that the transactions relative to it were designedly concealed from any one; and fraud should never be lightly inferred. The objection that the defendant here had parted with his interest, before or pending the appeal in the original suit, would- not, except in a palpable case of fraud, authorize the court to set aside this decree, or to grant a perpetual injunction against its enforcement.

I do not see any sufficient reason for granting the preliminary injunction asked for by the plaintiff, and it is accordingly denied, with ten dollars costs.