Pond v. Davenport

By the Court, Crockett, J.: The judgment which Corbet obtained against Davenport must be deemed a judgment by confession. The time for answering had not expired and the judgment could not have been taken by default, and does not purport to have been a judgment of that character. On the contrary it was based upon a verified statement made by the defendant, consenting to the judgment, specifying the amount, and undertaking to state the subject matter of the indebtedness, as founded on a promissory note due from defendant to the plaintiff in " the action. It was clearly intended to be, and is, in its legal effect, a judgment by confession. This judgment is assailed on the ground: First—That the statement was insufficient in omitting to set forth with the requisite particularity the facts out of which the indebtedness arose, and it is insisted that for this reason, prima facie, it was fraudulent as to creditors of the judgment debtor; and second, that the judgment was fraudulent in fact, the defendant, as is alleged, being in no manner indebted to the plaintiff when the note was executed and the judgment confessed. The first point is well taken. The statement, in attempting to set out the facts out of which the indebtedness arose, only avers “that the defendant executed to said plaintiff a certain promissory [487] note on the 15th day of September, A. D. 1871, for money due the plaintiff from the defendant in the sum of ten hundred thirty-seven and fifty-five one hundredths dollars, and that the said .sum is justly to the plaintiff from this defendant.” The omission of the word “due” after the word “justly” was probably a mere clerical error, and will be so treated. But the statement is substantially defective, in omitting to set forth the consideration of the note, and the facts out of which the indebtedness arose. (Richards v. McMillan, 6 Cal. 422; Cordier v. Schloss, 12 id. 143; same case, 18 id. 576; Wilcoxson v. Burton, 27 id. 237.) The statement, however, was not so fatally defective as to render the judgment void, but raises a presumption that it was fraudulent as to the creditors of Davenport. This, however, is but a presumption, which may be rebutted by proof of the necessary facts which were omitted from the statement (see authorities above cited), but the facts proved must be consistent with and in support of the averments of the statement. In Wilcoxson v. Burton, supra, the rule is thus stated: “Particular facts lying within the scope of the general terms used in a confession may be brought forward by averment. If the confession states a ‘ promissory note ’ (implying a consideration) or £ services ’ or £ advances ’ or both, as the source or ground of indebtedness, the creditor, always keeping within the limits of the terms used, may prove all matters explanatory. Beyond this he cannot go.” As a promissory note imports a consideration, it is competent, under this rule, to prove what the true consideration was and thus supply the omission in the statement, but the burden of proof is on the party claiming under the judgment. On the hearing of the application for an injunction in this case, Corbet, the plaintiff in the judgment, produced several affidavits, detailing the circumstances under which the note was made, and stating its consideration minutely. The facts, as disclosed by the affidavits, were, [488] that on the 22d June, 1871, Davenport, being justly indebted to one Buttrick in the sum of one thousand and thirty-seven dollars and fifty-five cents, gold coin, for merchandise sold and delivered, executed and delivered to But-trick, on that day, his promissory note for that sum, payable on demand; that in the following month of September, But-trick, being still the holder of the note, which remained unpaid, applied, through his agent, to Corbet, with a view to raise money on the note, but the latter refused to purchase or discount it on the ground that it was overdue. He proposed, however, that if Buttrick would procure from Davenport his promissory note for the same amount, payable directly to Corbet or order, on demand, then he would discount or purchase the note at the sum or price of eight hundred dollars. Thereupon Buttrick, through his agent, proposed to Davenport that he would surrender the first note ' if the latter would execute another note for the same amount, payable to Corbet, and explained why he desired to change the form of the note. Davenport having assented to the arrangement, the first note was surrendered and the new one executed, which was immediately delivered to Corbet, who paid to Buttrick the stipulated sum of eight hundred dollars. The confession of judgment was founded on this note. These affidavits were wholly uncontradicted, and there was nothing in the facts disclosed tending to impeach either the consideration of the note or the bona fides of the transaction. It was but a change in the form of the note, which represented the indebtedness from Davenport to But-trick, and as between the parties to it the legal effect of the transaction was precisely the same as though Buttrick had surrendered the old note and taken a new one payable to himself, which he had assigned to Corbet for a valuable con- ( sideration, but without recourse. The same result was accomplished by the method which was pursued, and I discover nothing in the transaction which can impeach the considera [489] tion of the note or raise even a suspicion of fraud. For these reasons, I am of opinion that the judgment was valid, and that the presumption of fraud arising from the defects in the confession was successfully rebutted by the facts disclosed by the affidavits. It results that by the levy of his execution Corbet acquired a valid lien on the goods, and is therefore entitled to the fund in the Sheriff’s hands if the facts disclosed by this record are true. Order granting injunction reversed, and cause remanded. Mr. Justice Bhodes did not express an opinion.