McKerrahan ex rel. Snowden v. Crawford's Executors

The opinion of the court was delivered, January 4th 1869, by Thompson, C. J. This scire facias was issued for the purpose of reviving the judgment of MeKerrahan, obtained against the executors of Edward Crawford, deceased, against the widow and heirs and legal representatives-of the decedent; and the defendants, upon whom service-of -the writ was made, pleaded payment, and on this plea went to trial. In order to sustain their plea they called the assignee of the judgment for whose use it was marked, and proved by him that he was a trustee of it for William H. Crawford, one of the-executors, and a defendant in the scire facias. But he further distinctly testified that Crawford furnished the money for the pur [392] chase of it from McKerrahan, and that it was assigned to him as security for counsel fees due him by Crawford. Thus it clearly appeared, that the judgment was not technically satisfied, but intended to be kept on foot for the use of Crawford. Having made this proof, the defendants rested. It is very questionable whether this was sufficient to have sustained the defendants’ plea. But any question on this point, was put at rest by the offer of testimony on part of the plaintiff, which was to show by the account of the executors filed in the Orphans’ Court, that the whole personal estate had been expended in payment of debts, without reaching the judgment of McKerrahan, and that the money paid for the assignment was the private funds of William H. Crawford; that none of it belonged to the estate, and that the executors had none belonging to the estate, by which it could have been paid off or bought in. The court excluded the offer, and it is difficult to tell why. It was certainly an answer to the defendants’ testimony given for the purpose of raising the presumption that the judgment was paid off by the money of the estate. Its satisfaction could not be pretended unless this was so. It was therefore competent evidence. There was nothing wrong in the executor buying the judgment with his own money, if the estate had not the means of paying it off, and this it was the purpose of the offer to show. It did the estate no harm. But it seems to have been thought that the testimony if received would contradict the defendant Crawford’s plea. This consideration should not have controlled, unless he would be estopped by it. It is possible he might be estopped after verdict and judgment, but he was not estopped at the time of the offer. The other defendants had no rights under it, which it would have been a fraud upon to show the truth about. This is the very essence of all estoppels. Estoppels are said to be odious in law, because they always exclude the truth, and hence whether claimed as of record or in pais, they must, to be such, be within the principle which gives them force, before they will be effectual. The very offer of the testimony showed that as to William H. Crawford, the plea of payment was a mistake, put in, in all .probability, by his co-heirs and co-executor, and the court should have received it, and struck out the plea, or permitted it to be withdrawn as to him. The manifest justice of the case required this, and the court should not have allowed it to have been defeated, when the remedy was so plainly at hand. Eor the rejection of the testimony, the judgment must be reversed, and it will be for the plaintiff to say, if an amendment of William H. Crawford’s plea will not be expedient before, or on, another trial. Judgment reversed, and venire de novo awarded.