Davidson v. . Alexander

RuefiN, J. As the case discloses the fact that there was no execution under the plaintiff’s judgment in the defendant’s hands at the time of his sale, he has a complete defence against the action, as his sale could only convey to the purchaser the land subject to the lien of plaintiff’s judgment, provided it be a prior valid one. But as neither the counsel for plaintiff or defendant urged this point, notwithstanding their attention was called to it, we presume it is the wish *625 of the parties, in order to avoid farther litigation, to have settled the points as to the validity and effect of the judgment confessed to the plaintiff before the clerk, and therefore we have given those matters our consideration. The provisions of the Code of Civil Procedure, sections 325, 326, under which this proceeding was attempted, have seldom been before this court for consideration, and in no instance, so far as is known to us, have they been the subject of judicial construction by the court. That duty devolves upon us, and in its discharge we have endeavored fairly'' to ascertain the legislative will, being careful not by a too narrow construction to thwart it, or by a too liberal one to extend it beyond that which was intended. Of the requirements of the statute, some are matters of form and possibly maj' be deemed merely directory; but there are others essentially matters of substance, a strict compliance with which is absolutely demanded, and without which, the proceeding is void. Amongst the latter, as-it seems to us, is that contained in sub-division 2, of section 326, of the code, to the effect that the statement in writing, which the party confessing the judgment is required to sign and verify by his oath, must state concisely the facts out of which it (the indebtedness) arose, and must show that the sum confessed therefor is justly due. The object of the statute in this is to protect the other creditors of the debtor: to enable them, not only to see the extent of his liabilities, but to test the bona fides of this particular debt to'which he is giving a-preference; and that they may have full opportunity to do this, the parties are commanded to spread upon the record specifically the circumstances and business transactions out of which it originated. A mere statement that the defendant is indebted to the plaintiff in a sum certain “ arising from the acceptance of a draft, of which the following is a copy,” &c., falls far short of the demands of the statute. What was the real *626 consideration of that draft? the time and the manner of its creation ? is the information required to be given, and this, that others interested may be able to try the truth of the statement, by comparing it with their previous knowledge of the condition and conduct of the parties. It is not at all the shape of the demand, or its amount, at the time the judgment is confessed, that the law demands to know, but its previous history and its exact consideration. Compared with these requirements, how meagre is the information, as to the consideration of the debt and the transaction out of which it grew, is the statement of the •debtor when confessing the judgment under consideration ? All the judgment roll discloses is that on the 1st of October, 1868, the creditor, W. F. Davidson, gave a sixty day draft on J. A. Smith, Esq., for the sum of $8,801.64, which the said J. A. Smith accepted, payable at bank, and that upon such a draft, judgment was confessed, on the 22nd of August, 1871, by Smith as “President of the Empire mining company,” without explaining, or attempting to explain, what connection the company had with the transaction, or in what matter it became indebted to the party to whom the judgment was confessed. When the creditor after a lapse of ten years comes to be examined as a witness in his own behalf, he is able to say that the debt was due him from the company on account of services rendered it in effecting the purchase of a certain tract of land. Why was this information not given at first, that others interested, and who might know the parties and their circumstances and business transactions and connections,'.might test its accuracy and good faith ? Could there be any more striking illustration of the wisdom of the requirements of tlie ■statute than is afforded by this case? especially if we consider, in connection with it, the plaintiff’s letter, written on •the 7th of March, 1872, and made a part of the case, in which he declares that he has caused an execution to issue *627 under this judgment, so confessed to him, not because the amount of the judgment was truly due him from the company, but in order that he might purchase the very land, •out of which this controversy has grown, for another party, at a nominal price, and as a means of curing a defective title to the land which that party had. previously obtained'. So that our conclusion is that the judgment, confessed as it was, upon so defective a statement of the facts out of which the debt arose, is void, a proper statement being necessary to give the court jurisdiction. But supposing this was not so, and that this was a valid judgment between the parties, and would, upon a direct proceeding to impeach it, be so declared to be, it still remains for us to enquire how far it affected the lands of the Empire gold mining company, and whether the same could be sold thereunder. By reference to the record it will be seen that “J. A^ Smith ” is the party, declared, in the statement which makes part of the judgment-roll, to be the defendant. It is true he speaks of himself as “ president of the Empire Company,” but the company, though judgment is authorised to be entered against it, is nowhere spoken of as the defendant, or as owing the debt for which the judgment is confessed $ on the contrary, the statement acknowledging the debt, which the statute directs to be signed by the defendant, is signed by J. A. Smith, president of Empire mining ■company, and the draft, which is the only evidence of indebteness whatsoever, is one of -J. A. Smith, simply, and is accepted by him in his individual capacity, and not as president of the company j and, above all, when the clerk comes to enter up judgment on the judgment docket, it is entered, not against the company, but against J. A. Smith, Prest. Empire min ing-company; and when executions are issued under the judgment, they are, in every instance, issued against-J. -A. Smith *628 as the defendant, and the'sheriff is commanded to make the money out of his property. In the case of the Insurance Company v. Hicks, 3 Jones, 58, the judgment was, like this, rendered against one “ Jordan, president of the Mantio company,” and under an execution, running in the same way, the sheriff seized the property of the company and sold it, and this court held that he could not justify under it, that the judgment was against Jordan individually, and not against the company. The plaintiff’s counsel assumed the further position that the judgment was intended to have been confessed by the Empire gold mining company, and that he should have been permitted to show this by parol, and he cited us to Freeman on Judgments, section 154, as authority for this. This author does say, that it sometimes happens that the name of a party to a judgment is incorrectly stated, and that when such is the case the party intended to be named in the judgment may be connected with it by proper aver-ments, supported by proper proofs, and he refers us to-many decided cases in support of his proposition. In looking to the cases, we find they all go just to the extent that when a party is sued by a wrong name, and the writ is actually served on the right person and he fails to appear and plead the matter in abatement, and judgment goes against him, though by the wrong name, he is concluded. So in this court, in the case of Aycock v. R. R. Co., 6 Jones, 232, where the writ issued against an officer of the company and was served on him, but the declaration was against the company and the judgment was so entered against the company, it was held that the company was bound by the judgment, and the case was distinguished from the other case of Insurance Company v. Hicks, supra, on the very ground that the judgment had been entered, not against the officer but against the company. But no case goes to the extent of saying that, where a judgment is confessed by one person, *629 against himself, and it is so entered of record, it may be ■shown that it was intended to have been entered against another. And we take -it, that under our new system there will be less liberality in such matters than under the old ; for judgments have ceased to be merely the recorded conclusions of the law as to the rights of suitors in court, but have been made to perform some of the functions of a mortgage, and to act as securities for future and contingent liabilities ; .so that it is, now, of as much consequence that judgments should be truly docketed, as that mortgages and deeds in trust should be truly registered. We concur with the rulings of His Honor and declare there is no error. No error. Affirmed.