Spencer v. Sloo

Bullard J., delivered the opinion of the court. The plaintiff sues upon a judgment recovered by him, in the state of Ohio, on a scire facias, upon a mortgage given by the defendant, upon a house and lot in Cincinnati. The mortgaged premises having been sold under a writ of levari facias, issued in pursuance of that judgment, this suit is instituted to recover the balance adjudged to the plaintiff in that case, and the exemplification of the record is relied on as conclusive evidence of the debt. The defendant first set up as an exception, that the judgment in question was obtained in a proceeding in rem, that it is not pretended he was served with process, or appeared personally or by attorney. He further alleges, that at-that time he was not within the jurisdiction of Ohio, and that he had no notice of these proceedings. This exception [293] being overruled, the defendant pleaded to the merits, and set up a final settlement and discharge, previous to the ex parte proceedings in Ohio, and alleges that said proceedings were fraudulent, and the judgment obtained in fraud and violation of his rights. Judgment being rendered in favor of the defendant, the plaintiff appealed. The effect of the judgment on the scire facias, in Ohio, has been much discussed at the bar, and the statute authorising such proceedings has been produced, together with the opinion of counsel, and adjudicated cases, in the highest court of that state. The statute authorises a mortgagee to obtain from the Supreme Court, or the County Court of the county in which the premises are situated, a scire facias on the mortgagor, to show cause why the mortgaged premises should not be taken in execution, and sold to satisfy the money due and owing, according to the conditions and covenants contained in such mortgage. It provides, that if the defendant on being returned summoned, or on two writs of scire facias, returned nihil, shall not appear, judgment by default shall be entered, and the court shall proceed according to law, to assess the damages, and enter final judgment thereon, on which a writ of levari facias shall issue. The third section declares, that “if the mortgaged premises so taken in execution be not sufficient to satisfy the said judgment, then the residue of said judgment, so remaining unsatisfied shall be deemed and taken to be a debt of record, for which the plaintiff or 'plaintiffs, may issue a writ or writs of scire facias, and proceed thereon to judgment and execution as in other cases.” Statutes of Ohio, page 252. The proceedings in this case, stopped with the judgment on the first scire facias, or the return of the two nihils, and no new scire facias appears to have been sued out. It seems to be settled in the state of Ohio, that the mortgagee who has taken his judgment on the scire facias on a mortgage cannot resort to his original cause of action and maintain an action of assumpsit, debt or covenant, but that [294] the bond or note, or other evidence of debt, merges in the judgment on the scire facias. Ohio Reports, condensed, 75. . Where a judgment, which was rendered in another state on a mortgage, according to the forms of proceeding there, and which liquidates the original debt which the mortgage was given, to secure, is made the foundation of a suit here, for the balance which the mortgaged property tailed to pay, and the debtor was not in the state, or served with process, nor appeared, either in person or by attorney to the suit: Held, that such judgment is not evidence of the balance of the debt claimed but that itis still open for a defence on the merits of the original claim. So far as relates to the title of the mortgaged property, we have no doubt these proceedings are conclusive, but as to the residue of the debt, the judgment'is inoperative, until a new judgment be recovered in a second scire facias.' We are not distinctly informed by the evidence, what plea might avail the defendant in Ohio, under a second scire facias, to enforce the balance of the judgment, and whether such a defence as now set up, could be received ; nor are we informed how far a judgment debtor, in such a case, would be entitled to relief in a court of. equity, on showing that the judgment was obtained, long after the original debt had been extinguished, and the mortgage cancelled. We are not to presume that the jurisprudence of that state, is so defective as to afford no remedy in such a .case, and that a judgment recovered ex parte, against an absentee, would be enforced although obtained after the original cause of action had in fact been extinguished. We are of opinion, therefore, that the case, as relates to the balance claimed on the judgment, is still open in our courts, and that such a defence, if established by evidence, must prevail. This brings us to the merits .of the defence. The defendant alleges, that he conveyed the mortgaged premises to Longworth, Carneal & Ir.win, in trust for certain purposes specified in the conveyance. That in August, 1820, two or three'years before the judgment in question, Spencer the plaintiff, made an agreement with them to take their conveyance of the property in fee, and to pay them about six thousand dollars over and above the amount of his mortgage. That in pursuance of that agreement, a conveyance was executed by them to Spencer, on the 29 th August, 1820. He further alleges, that said Longworth, with the consent of Spencer, and under a certain agreement with him, not now necessary to specify, conveyed the same property to the Bank of the United States, and, that afterwards, Longworth paid Spencer the sum of three thousand five hundred dollars in full discharge of his claim. [295] In support of the leading facts thus detailed, the plaintiff was called on to produce on trial, and did produce the deed of the 5th April, 1820, from Longworth, Irwin and Carneal,, to him. This deed appears to have been signed, sealed, and delivered, and it is shown that Spencer received the rents from March 4th, 1820, till January 4th, 1822. The defendant, independently of the parole evidence of the record, further produced a letter addressed by Spencer to the present defendant, written many years after these transactions, making inquiries relative to a previous mortgage on the same property in favor of one Best, and particularly whether that mortgage had not in fact, been paid off by Sloo to Carneal. In the course of that letter he takes occasion to say, “I find on reference to Irwin, Carneal and Lbngworth’s deed to me, dated 5th April, 1820, that the consideration named is three thousand six hundred dollars. This formed an additional objection with me, to taking the deed, as I was to pay six thousand five hundred dollars, and wanted a warranty to that amount. My claim against Mr. Longworth rests on this, that I took three thousand six hundred dollars, for my lien on the property, on his statement, that the mortgage to Best was unpaid, and a lien at the time I took said three thousand five hundred dollars.” ' There is in the record a memorandum, in pencil mark, made by Spencer, but not signed, which was admitted in evidence as an adminiculum, to wit: “August 25th, 1820, deed from Irwin, Carneal and Longworth to Spencer; about August, 1821, deed from same for same property to Bank of United States; judgment on mortgage, 19th September, 1823. December 12, 1823, agreement with N. L. to take three thousand five hundred dollars for mortgage, supposing that a prior lien existed.” The record contains numerous bills of exception, some of which require to be noticed. The testimony of Carneal and others, taken on commission, was objected to on various grounds, and particularly that no parole evidence could be admitted to impeach the validity of the judgment, recovered against the defendant in Ohio, that the witness was a party [296] to the transactions, that no parole evidence could be introduced, until the deed of trust was produced; the law of Ohio requiring written evidence of such trusts. Parole evidence, although inadmissible to prove title to immoveable property and slaves or to destroy such title, yetitis admissible lo establislicollaleral facts connected ■with the transaction. It is not shown.that the witnesses had any interest in this case, and it is ah obvious answer to the first part of the objection, that a part of the transaction, on which the defendant relies, as a release in the nature of novation, took place after the rendition of the judgment. We think the court did not err in permitting the depositions to be read. In the case of Andrus vs. Chretien, we held that although parole evidence is inadmissible to prove title in slaves, or to destroy such title, it is admissible to establish collateral facts connected with the transaction. 7 Louisiana Reports, 318. , The testimony in the record, corroborated by written evidence, emanating from the plaintiff himself, has satisfied us as it did the court of the first instance, that the plaintiff is not entitled to recover. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.