Weinges v. Cash

The opinion of the court was delivered by McIvee, A. J. The object of this action, which was brought by a junior judgment creditor of the defendant Ellerbe, was to set aside a judgment confessed by said Ellerbe to his co-defend — 57 — ant, Mrs. Cash. The judgment was originally entered in Chesterfield county, and transcripts thereof were docketed in the counties of Kershaw and Sumter. The grounds relied upon were: 1. Fraud in the original judgment. 2. That the “statement” accompanying the confession was insufficient to render the judgment valid as against the rights of other creditors. 3. That the transcripts docketed in the counties of Kershaw and Sumter were invalid. 4. That the provisions of the code authorizing a confession of judgment without action, have been repealed. 5. That if these provisions have not been repealed, yet the confession of judgment in question here was of no effect, “ because it had not been obtained or read íd open court, as required by law.” The Circuit judge held that the plaintiff had failed to establish any fraud in the judgment in question, but that the “statement” upon which it was entered was not sufficient, and, therefore, while the judgment was good between the parties it was void as to the other creditors of Ellerbe. He also held that while there were “ minor deficiencies and irregularities of form ” in the transcripts, they might be amended, but that he “ should not incline to pronounce them void if they rested upon a sufficient original judgment.” He therefore adjudged that the plain-tiffin the judgment, Mrs. Cash, be perpetually enjoined from enforcing said judgment until the judgment obtained by Weinges, the plaintiff in this case, against Ellerbe, is fully satisfied. From the judgment below both parties have appealed, though the notice of appeal on the part of the plaintiff ought, properly, to have been a notice that if this court should find itself unable to sustain the judgment below on the ground upon which it is rested by the Circuit judge, then plaintiff would insist that said judgment should be sustained on the grounds mentioned in his notice of appeal. For the judgment below being in favor of the plaintiff, it was scarcely his intention to appeal from it, and we will, therefore, assume, for his benefit, that the only object of his notice of appeal was to enable him to discuss the points made in his notice of appeal. The first point which he makes is, that the Circuit judge erred in holding “that the facts and circumstances proven did not establish a legal fraud upon the rights of — 58 — the plaintiff.” This question has been so fully and satisfactorily disposed of in the decree below, that we deem it scarcely necessary to add anything to what is there, said. Indeed, we do not understand that, in the argument here, the plaintiff’s counsel impute fraud of any kind to any one except Ellerbe, and as to him only legal or constructive fraud, which is inferred from his acts and. declarations, evincing, as argued, an intent to hinder, defeat and delay Weinges in the collection of any amount he might recover in the suit for damages then pending. Even were this the correct inference to be drawn from the testimony, we do not see how it could affect Mrs. Cash. There is no pretence whatever that she participated in any such fraudulent intent, (if any such there was) and, as is said in Smith & Gibson v. Pate & Stubbs, 3 S. C. 208 : “ It would be inconsistent with every principle of law and morals” to say that she, against whom no imputation of fraud is made, should in any way be affected by the fraudulent motive which, it is alleged, influenced Ellerbe, even if such allegation had been proved. Mrs. Cash’s husband, acting as her agent in the whole transaction, does not seem to have done anything more than he had a perfect right, both in law and morals, to do for the purpose of securing a debt due to his wife; for there is no evidence to show that the preference which he obtained for her was secured by any promise or understanding that Ellerbe was to receive any benefit from the arrangement. We are unable to see how this point can be sustained, and, on the contrary, concur fully with the Circuit judge in his conclusion as to the question of fraud. The second point made by the plaintiff’s notice of appeal is: “ Because his Honor failed to decide that a confession of judgment taken-before the clerk of the court is void at law.” The question here raised was not considered by the Circuit judge, doubtless, for the very good reason that, under the view which he took of the case, it was altogether unnecessary to do so. But under the view which we take it will be necessary for us to determine the question. The rule in this court is, that while a Circuit judgment will not be reversed or set aside, except upon grounds taken in the court below, or except upon such questions of jurisdiction as may be raised at any stage of the proceedings, — 59 — yet if the judgment below can be sustained upon any ground, whether taken in the court below or not, this court will not only consider, it, but base a judgment of affirmance upon it. And, as will be hereinafter seen, we do not think the judgment below can be sustained 'upon the ground, upon which the Circuit judge places it, and, as it could be sustained if the position taken by the plaintiffs second ground of appeal be well founded, it becomes necessary for us to consider the question there raised. The determination of this question depends entirely upon whether Sections 399 to 401, inclusive, of the code, relating to confessions of judgment without action, have been repealed by the twenty-first section of the act of November 25th, 1873. 15 Stat. 495. It is perhaps proper to state here that the repealing act relied upon has been spoken of throughout the argument as the act of March 8th, 1875. 15 Stat. 868. But in the case of Arnold v. McKellar, 9 S. C. 335, it was determined that there was no ground for the doubts which had been previously entertained as to whether the act approved November 25th, 1873, was a valid law, and hence the subsequent act, in totidem verbis, approved March 8th, 1875, was altogether unnecessary, and the true date at which these numerous and important amendments to the code took effect was November 25th, 1873, and not March 8th, 1875. We proceed then to inquire whether the sections of the code providing for the taking of confessions of judgment have been repealed by the twenty-first section of the act of 1873. It is very manifest that they are not expressly repealed, and if repealed at all, it must be by implication. Repeals by implication are not favored, and “ to repeal a statute by implication there must be such a positive repugnancy between the provisions of the new law and the old that they cannot stand together or be consistently reconciled.” Potter’s Dwar. on Stat. 155, note 4, and the cases there cited. The title of the act of 1873 is “ An act to alter and amend the code of procedure, being Title V., Part III., of the general statutes.” In the first section it provides “that the code of procedure * * * be and the same is hereby amended in the several sections thereof as is hereinafter provided,” and it then proceeds to provide for amendments to various sections of the code, specifying them by their numbers, though it does not refer — 60 — to any of the sections of that chapter of the code which relates to confessions of judgment. But the twenty-first section of the act containing general provisions and not referring to any particular section of the code, is what is relied upon as repealing the provisions of the code relating to confessions of judgment. That section is in the following words: “ That after the passage of this act no judgment shall be obtained in the Court of Common Pleas except during term time in open court, and it shall be the duty of the clerk to place all cases filed in his office, in which there is no defence, upon a docket to be prepared by him for the purpose, to be known as Docket No. 6, and they shall be called ■on the first day of the term, and the order for judgment shall be endorsed on the complaint and signed by the presiding judge, and no execution shall be signed on judgments obtained by default in any other manner than is herein provided.” Is there such a positive repugnancy between the provisions of this section and those sections of the code providing for the taking of a confession of judgment without action, as that the two cannot stand together or be consistently reconciled? We confess that we are unable to discover any such repugnancy. They manifestly •relate to different things. The sections of the code, from 399 to 401, inclusive, in terms, relate to confessions of judgment without action, while the twenty-first section of the act of 1873 as clearly relates to judgments to be recovered in actions brought in the Court of Common Pleas. It speaks of judgments “obtained in the Court of Common Pleas,” and requires the clerk to placé “ all cases filed in his office in which there is no defence ” on a certain docket, showing clearly that it relates to cases or actions »brought in the Court of Common Pleas in which a defence might be interposed, all of which would be altogether inapplicable to a ■confession of judgment without action. Again, it provides that the order for judgment “ shall be endorsed on the complaint,” which is entirely inconsistent with the idea that there was any intention to refer to confessions of judgment in this section, for in such a proceeding there is no complaint. Finally, it provides, not as argued here, that no execution shall be signed on judgments obtained in any other manner than is provided for in that .section, but the language is, “ no execution shall be signed on — 61 — judgments obtained by default in any other manner than is herein provided.” This shows very clearly that the prohibition does not extend to judgments by confession, for, to speak of them as judgments “ obtained by default,” would be a contradiction in terms — the very term “ default ” involving, necessarily, the idea that the person to whom it is imputed once had an opportunity to defend the action which he has lost by his neglect to do so in the proper way and ,at the proper time, and this is manifestly inconsistent with the idea of a confession of judgment without action. The provisions of Section 21 of the act of 1873, in our judgment, relate to Subdivision 1 of Section 269 of the code, and have no application to those sections of the code providing for confessions of judgment without action. The second point made by plaintiff cannot be sustained. As to the plaintiff’s third point, it is quite sufficient to say that we are aware of no law which requires a confession of judgment to be obtained or read in open court. The act of 1821, which did require such confessions to be read in open court, has been repealed by Gen. Stat. 819, and even under that act it was held that a failure to comply with that requirement did not affect the validity of the judgment or the lien which it secured. Stokes v. Cane, 6 Rich. 513. We come now to consider the grounds of appeal on the part of the defendants. These grounds, though stated in various forms, may be substantially regarded as making the single question, whether the statement accompanying the confession of judgment, assailed in this case, and upon which it was based, was sufficient to give the judgment validity as to third persons. The Circuit judge held that the statement was insufficient, basing his conclusion upon various New York decisions cited in his decree. These decisions, upon examination, will be found, with two exceptions, all to He Supreme Court decisions, and not decisions of the court of last resort, and some, of them mere Special Term decisions. They were made between the years 1855 and 1861, inclusive, and it is manifest that there is much conflict in the decisions of the Supreme Court of New York, especially among those made within a few years after the adoption of their code of procedure. This may have arisen, as is suggested in one of the — 62 — cases, from the fact that the courts of that state, losing sight of the marked difference in the language of the New York act of 1818, with reference to confessions of judgment, and that employed in their code, based their earlier decisions under the code upon cases which had been decided under the more stringent terms of the act of 1818. That act required “ a particular statement and specification of the nature and consideration of the debt,” while the Nety York code, like ours, only requires “ concise ” statement of the facts out of which the debt arises. The only decisions of the court of last resort in New York, cited by the Circuit judge to sustain his conclusion, are Chappel v. Chappel, 12 N. Y. (2 Kernan) 215, decided in 1855, and Dunham v. Waterman, 17 N. Y. (3 Smith) 9, decided in 1858. In the former case the statement simply set forth that the indebtedness grew out of two notes particularly described, but did not state what the notes were given for, and in Dunham v. Waterman the statement was that the indebtedness arose upon a note given on settlement of accounts. In both of these cases the statements were held to be insufficient, for the very good reason, that to state, as in Chappel v. Chappel, that the indebtedness arose on notes, is throwing no light whatever on the facts constituting the liability, for the notes are mere evidences of debt and afford no clue to the origin of the indebtedness. One who had given a note under seal, without any consideration, might safely swear that he was indebted in the amount of such note, but if he is required also to say what was the origin or consideration of the debt, he could not truthfully do so unless there was in fact a bona fide indebtedness for which such note was given. In Dun-ham v. Waterman, the only material difference in the statement from that held to be insufficient in the foregoing case, was the fact that it was there stated that the note was given in settlement of accounts, without saying anything as' to the nature of the accounts. This, as the court very properly held, added nothing in the way of information as to the origin and consideration of the indebtedness. The nature of the accounts, upon the settlement of which the indebtedness was alleged to have arisen, should have been stated, so as to give creditors a clue by which they could investigate for themselves the honesty of the trans — 63 — action, and without this creditors would have no starting point at which to begin their inquiries. In Freligh v. Brink, 22 N. Y. 418, decided in 1860, it was held that a statement that the indebtedness arose upon a promissory note given for borrowed money, with the additional statement: “And we hereby state that the sum hereby by us confessed is justly due to the said plaintiff, without any fraud whatever,” was sufficient, for the reason that it was not confined to a mere statement of the note, but the consideration of it — borrowed money — was given, and it is difficult to see what more could be required. In Neusbaum v. Keim, 24 N. Y. 325, decided in 1862, it was held that a statement was sufficient, which, after declaring that the plaintiff had sold and delivered to the debtor large quantities of meat in 1854 and 1855, averred that there was justly due him upon such sales a balance of so much, for which the judgment was taken. In this case it was objected that the statement did not show the amount of meat sold, nor did it show the payments which had been made, nor the prices at which it was sold. But the court said that it was manifest such details were not necessary, and that all the statute required was a eonoise, not a particular or detailed statement of the facts out of which the indebtedness arose. In Hopkins v. Nelson, 24 N. Y. 518, decided in 1862, the statement was that “ the plaintiff has this day endorsed my notes, payable at bank, for six thousand dollars in all, for my accommodation and to enable me to negotiate said notes.” It was objected that the statement should have shown the date,'time to run, amount and place of payment of each note so endorsed by the plaintiff, but the court held that such particularity was not required, and that the statement was sufficient. In Thompson v. VanVetchen, 27 N. Y. 568, decided in 1863, the statement was that the indebtedness arose on the sale and conveyance by the plaintiff to the defendant of his interest in certain partnership property, and it was held sufficient, though it did not state how the plaintiff was connected with the firm, or what was his interest therein. Frost v. Koon, 30 N. Y. 442, decided in 1864, again recog — 64 — nizes Lanning v. Carpenter and Freligh v. Brink, in holding that a statement that the debt was for money borrowed, without any specification of time or separate amounts, was sufficient. From this review of the New York cases it is very manifest that the court of last resort in that state does not require that extreme particularity of statement which the earlier decisions of the Supreme Court seemed to exact, but, on the contrary, all that they require is a conoise, as contradistinguished from a particular or detailed statement of the facts out of which the indebtedness arises. In addition to the foregoing cases decided by the Court of Appeals in New York, we desire also to cite one of the cases relied upon by the Circuit judge for the purpose of extracting from it certain language used by the court, which, we think, more accurately expresses the true rule which should govern in the consideration of questions of this kind than we find anywhere else. In McDowell v. Daniels, 38 Barb. 143, decided in 1861, the motion was to set aside four judgments upon the ground that the statements were insufficient. In two of the judgments the statements were held to be sufficient, while in the other two they were held to be insufficient. An examination of this case will show the very great extent to which the Supreme Court of that state was disposed to go in exacting the utmost particularity of statement instead of the concise statement required by the code. But even in that case the court lays down the rule in the following language“ Other creditors of Daniels are not obliged to take his statement under oath that the debt is justly due or to become due. They have a right to inquire into the honesty of the defendant and of the transaction. To enable them to do so— to get on the track of the fraud, if there is any — the statute requires the concise statement of the facts. This statement gives enough of the transaction, I think, to enable other creditors of Daniels to inquire into its truthfulness and the honesty of the alleged debt. I do not think it can properly be said that the object of the statute was to compel the debtor to state sufficient of the transaction out of which the indebtedness arose, to enable other creditors to form an opinion, from the facts stated, as to the — 65 — integrity of the debtor in confessing the judgment. If the debt is questioned, it is not to be presumed that the creditor questioning it will take the debtor’s statement, however full. What the creditor wants, and what, I think, the statute intended he should have, is sufficient of the facts to enable him to inquire into the transaction and to form his opinion of the honesty of the judgment from the fads he shall ascertain.” Testing the case now under consideration by this rule, we think the statement upon which the confession was based, will be found amply sufficient and fully sustained by the more recent decisions in New York. The statement here is: “The said judgment arises from the fact that I am indebted to her on account of the purchase and rentals by me of lands to which she was entitled to an interest as one of the heirs of her father’s estate, and also to the interest of her mother therein, which she has transferred to the plaintiff and directed me to pay to her, the same not exceeding the amount aforesaid, and the said amount is now justly due to the plaintiff.” Here, then, we have a statement of the amount due, the consideration of the debt, the facts out of which such consideration grew, and that the amount was justly due. What more could be required to make it conform to the statute, which only requires the facts out of which the indebtedness arises to be stated concisely f If, as is contended for, the statement had proceeded to set forth in detail the items going to make up the amount sworn to be justly due, it would have been very far from that concise statement contemplated by the statute. It fixed definitely the amount of the debt, and showed clearly the origin and consideration of the indebtedness, and, in our judgment, nothing more was necessary. Indeed, since we have learned from the evidence in this case that the judgment was taken for a less amount than that ascertained by calculation, and admitted by the debtor to be really due, by way of compromise, it is difficult to conceive how it would have been possible to make a more definite statement. As was well said in McDowell v. Daniels, supra, a creditor who was disposed to question this judgment would not, of course, accept the debtor’s statement as correct, even if it had been full to the minutest detail. All he would want to know would be what was claimed — 66 — to be the origin and consideration of the debt, and he would inquire for himself into the details. Here he is informed that the debt originated in the fact that the debtor had been using land in which the creditor had an undivided interest, and for which he was liable to pay rent, and in the fact that he had purchased another interest in the same land for which he had not paid the purchase money, and that this purchase money had been assigned to the plaintiff in the judgment. With these facts furnished to him by the statement, the creditor would have it in his power, by his own investigations, to ascertain how much ought to be due, and it is not to be expected that his action in the premises would be influenced by any details that might be contained in the statement, but by the result of his own investigations, which the facts there stated enabled him to institute. If a statement is simply to the effect that the defendant is indebted to the plaintiff in a certain amount, without stating the origin and consideration of the debt, the creditor is furnished with no starting point from which to commence his own investigations, and, therefore, such a statement would be insufficient. But where, as in this case, the origin and consideration of the debt are stated, the creditor is furnished with such starting point and may proceed with his own investigations, and there is no necessity for a detailed statement of the various items going to make up the amount of the indebtedness. We are, therefore, unable to agree with the Circuit judge that the statement in this case was insufficient. As to the objections to the transcripts of the judgment docketed in the counties of Kershaw and Sumter, we agree with the Circuit judge that the slight discrepancies or minor deficiencies and irregularities of form pointed out, might be amended, and are not sufficient to render them invalid. The judgment of the Circuit Court is reversed and the complaint is dismissed. SimpsON, C. J., and MoGowAN, A. J., concurred.