HEZEKIAH H. GEAR, appellant, vs. THOMAS J. PARISH, appellee, 1 Bur. 99

Opinion of the Court by Chief Justice Dunn: This is an appeal from a decree of (he District Court of Iowa bounty, 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 on false promises and representations, for the sum of $ 1,562 58, on an account, or the balance ufan account, which had been settled with, and decure'd 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 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 lime the money secured by said mortgage became due, when said Gear, on demand,refused to give up said mortgage, jas he should have done.

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

Hoge, said 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 cancelled; 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, 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, hut 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 by his attorney made, and insisted on by Parish in good faith; and said 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. On this hill injunction was awarded by the Chancellor.

The defendant, Gear, in his answer, denies that their full accounts were settled in 1836, and a mortgage given to secure $4,200 only, as the entire amount due him at the time, and ab ledges that it was not only given to secure said four thousand two hundred dollars, but such other sum as might be due from Parish to him. and that ho has found since said mortgage was given, that said Parish owed him 05,700. That the mortgage was given, but never acknowledged and recorded; that tho 04,200 wcie paid to him by Parish’s agent, which ¡to applied to tho credit of Parish’s account.

Ho denies that said 04,200 was received in full satisfaction of said mortgage or of the debt due by Parish to him, but that títere was a balance thou due of more than 01,500. He admits that his attorney, Jos. P. Hoge Esq. called on Parish in October, 1837, for a balance of 01,582 58, and that Parish confessed judgment for that sum at tho 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, Jos. P. Ilogo, Esq. but was tho freo and voluntary act of Parish.

Ho admits that he is informed and believes that his attorney consented that said mortgage should bo surrendered up to be cancelled, and avers that he has ever been ready and willing, although he told his said attorney that he did not think the mortgage should be surrendered until tho debt was paid, and that he has never since been able to find said mortgage, lie 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.

The defendant then set up new matter, not responsive to any of the charges in tho bill. Upon this bill and answer and replication, tho mortgage and bond of Parish to pay the $4200, receipt of payment by Parish, and flie depositions of Turney and Hamilton, taken on the part of complainant, Parish, this cause came on to be heard in tho District Court of Iowa, sitting as a court of chancery, and upon hearing, the court decreed a perpetual injunction against the judgment at law in favor of said Gear against said Parish.

It becomes tho 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 the procurement will taint, cancel, 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 doctrino at this day. The primary object of thecomplainant’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 placo where he can be relieved.

There is not, apparent on tho record of the confession of the judgment at law, any error in law; if there were, confession takes away error. The door of tho courts of law is barred against him, on account of the rigid and unrelaxing 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 the relief prayed for secondly, 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 pwn knowledge, the written instruments filed in the cause, and the depositions taken and read below.

The defendant’s direct answer, as of his own knowledge, is proper evidence, and must be weighed and considered, 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 ali unde, or it cannot avail him in his defence, but may prejudice, from the appearance it boars, of an attempt to equivocate, by leading off from the gist of the matters ho should answer.

If it appears from the answer of a defendant, that he discredits his answer by contradictory, unreasonable, irrecon-cileablo statements, or by statements contradicted by written in-* strnments 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 would preponderate over the weight of testimony contained in his answer, and against the answer. These principles are recognized in Mitchell vs. Maussin, 3 Monroe, 185. Whitington vs. Roberts, 4 Monroe, 173. Young vs. Hopkins and others, 6 Monroe, 18. Paynes vs.

Coles and others, 1 Munford, 373. Hart vs. Teneyck and others, 1 John. Chy. Rep. 62, and authorities referred to in note (

a) page 90.

Under these rules, a majority of this court have considered the defendant’s answer herein, which is all the evidence in his favor in this cause, and have opposed thereto tho depositions of Turney and Hamilton, disinterested witnesses, and the mortgage and bond re-/ ferrcd to, placed on the files with the papers in this cause by defendant on the hearing, and receipt of payment, and arc 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 discredited upon its face in part, and by written instruments in other respects, leaving the complainant’s charges unimpaired, undenied, and supported by testimony.

The defendant, as the whole matter was before the court of-equity, had ample time and opportunity to introduce proofs to sustain the justness of his account, and show that the items claimed were omitted by mistake or otherwise, on the settlement of 1836, when the bond and mortgage were given to secure the payment of the matters o^ account tiren claimed and stated to bo due to defendant by complainant; but ho 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 of Iowa, sitting as a court of chancery, herein be affirmed with costs.