Mott v. Hazen

The opinion of the court was delivered by Isham, J. This recognizance was given on the appeal of the case in favor of the plaintiff against Hamilton Babcock. That suit was an action of trespass to recover damages for an injury to real estate, and while the suit was pending, the defendant deceased. It is stated in the plea, and the facts are admitted by the demurrer, that an administrator was appointed on the estate of Babcock, that his appearance was entered of record, and that a final judgment was recovered by the plaintiff against the estate. The suit was properly continued in court and prosecuted to final judgment against the administrator; for under the provisions of the Comp. Stat. 341, §10, 12, the cause of action survived against the estate. If commissioners for the allowance of claims against the estate had been appointed, it probably would have operated as a discontinuance of the suit, and as a discharge of the recognizance; but as none were appointed, the suit was properly prosecuted in court, and the recognizance remained as obligatory, as if the death of the party had not intervened. Peake v. Keyes, 3 Vt. 317. The material question in the case arises upon a demurrer to the defendant’s plea in bar. The plea in substance states, that the judgment in favor of the plaintiff against the estate of Babcock was recovered under a fraudulent agreement between the plaintiff and the administrator that no defence shoud be made in the case. It is averred that no legal claim for damages existed, and that none could have been recovered if the administrator had properly defended the suit. The fact that the judgment was fraudulently obtained for the purpose of defrauding the defendants as bail, and to compel the bail to pay the plaintiff the amount of damages and costs, is distinctly stated in the plea, and admitted by the demurrer. The question arises whether such matter constitutes a good defence in a suit on this recognizance. [213] The judgment in that case is probably conclusive between the parties. Those who are interested in the estate of Babcock are not permitted to impeach or avoid its effect by any considerations which are stated in the plea. Those persons who stand as bail are so far privies to that judgment, that they cannot avoid it for any irregularity in the proceedings upon which it was obtained. Stedman v. Ingraham, 22 Vt. 346. In the case of Parkhurst v. Sumner, 23 Vt. 539, it was held “that all matters, which might have,been “ urged by the party before the adjudication, are concluded by the “judgment as to the principal parties, and all privies in interest, or “ estate, and among privies are those, who are liolden as bail “ for the party.” If the plea in this case had merely stated matter showing an irregularity in the proceedings upon which the judgment was rendered, it would, obviously, have been defective, as being no answer to the declaration. But the ground of defense in this case is the collusion between the parties in the original suit to enter up a judgment for the purpose of defrauding the bail. That was the defence made by the bail in a suit on a similar recognizance, in the case of Parhhurst v. Sumner, and it was held available. In that case, the court remarked, “ that the collusion between the orig- “ inal parties is not a matter of which they could ever have availed “ themselves, and there is no doubt it will avail the bail either at “ law or in equity, and the bail may plead it at the earliest opportunity afforded him in the suit upon his recognizance. The “ defense is not concluded by the judgment against the principal, “ since it is a matter which no one could properly have urged in “ that action.” The doctrine of that case, we are satisfied, is sound on principle and authority. As against the bail the judgment is void; it has no legal effect, and is the same in legal contemplation as if no judgment had been rendered. 1 Story, 147-8. 10 John, 594. This rule is of universal application, and ■ equally affects judgments, recognizances, debts of record, as well as instruments under seal and simple contracts. Wherever fraud exists, the party injured can find redress at law, as well as in equity. If it is a defence in one tribunal, it is equally so in the other. 1 Story Eq. §160. 1 John Ch. 429. The subject matter of this plea, we think, is a good defense to this action on the recognizance. We do not see any duplicity in this plea which renders it defec [214] tive on this demurrer. The defendants are not precluded from introducing several matters into their plea, if they are constituent parts of the same entire defense, or he alleged as inducement to, or as a consequence of another fact. 1 Cliitty on Plea 512. Com. Dig. (Plead. E. 2.) The demurrer must he overruled, and the plea adjudged sufficient. The judgment of the county court is affirmed.