Gilman v. Hovey

Scott, Judge, delivered the opinion of the court. This case, having been begun under the act of 1849, comes before us on the overruling of a motion for a review of the — 287 — finding of the facts, and also for a review of the law declared upon the facts. Some of the facts found, which are sought to be reviewed, are mere conclusions of law from other facts in the finding, and will not be noticed in this place. One important fact in the finding, the truth of which the defendant denies, was that the defendants were partners in, or that it was a part of their business, as partners, to examine the titles of real estate. There was evidence tending to show that such was the course of business of the concern. In addition to that set out in the motion for a review, is the conduct of Hovey, when application was made to him, in declining to undertake the examination himself, and in referring the agent of the plaintiff to the defendant Buchanan, who was a partner of Hovey in the practice of law; thus indicating that he did not decline for the reason that such employment was no part of the business of the profession or of the partnership. Moreover, Hovey gave as the cause of his not undertaking the examination proposed by the agent of the plaintiff, that, at the time, he had other engagements. This objection, if it could be sustained, would only relieve Hovey, who, we cheerfully say, does not appear himself to have been chargeable with the slightest blame in this transaction, except that which by implication of law arises from his association with his co-defendant Buchanan as partner. Another objection to the finding is that the court found a material fact which was not in issue, to-wit, that the defendants were guilty of negligence in not examining in order to ascertain if there were encumbrances on the lands. This fact, it is maintained, was not in issue and should not have a place in the finding. The allegation in the petition is, that the defendants “ were guilty of neglect and want of due diligence in examining into, and in the investigation of, the situation of said land and the title thereto.” The fact found by the court is, that the defendants failed to examine the records to ascertain if there were any judgments against said Abrahams in Jackson county; and from this failure the inference is drawn by the court that the defendants were guilty of negli — 288 — gence in not examining to ascertain the existence of the said judgment. As there was a general allegation of neglect and want of due diligence in examining into the situation of the title to the land, and as it was necessary to look as well into the docket of judgments as the record of deeds in order to know the condition of the title, and as the record-book might have been examined whilst the judgment docket was overlooked, we are of the opinion that the allegation in the petition warranted the court in making a finding as to the negligence of the defendants in failing to ascertain whether there were judgments. The point mostly relied on by the defendants is that the confession of judgment, not having been taken in conformity to the provisions of the statute, is void, and created no encumbrance or lien upon the land; that — the statute requiring the facts, out of which the debt arose, to be concisely stated, and that it be shown that the debt is justly due, and these requirements not having been complied with — there was no authority in the clerk to take or enter the confession of judgment, and consequently his act was null and void. In the case under consideration, the only evidences of the debt accompanying the statement on which the confession was entered were two promissory notes, the consideration of which was not set out. It may be admitted that such a statement was insufficient under the statute. A statement upon which to enter judgment without action under the act of 1849 is not sufficient, where it merely states and sets out a promissory note, executed by the defendant to the plaintiff, as the consideration of the indebtedness. In New York, where there is a statute on this subject, from which it seems ours was borrowed, this principle seems to be well settled. (Chappell v. Chappell, 2 Kernan, 215.) But while we'admit this to be the law, we are not prepared to say that a statement thus defective renders a judgment confessed upon it a nullity. We do not conceive that the doctrine in relation to powers or their execution has any thing to do with the question under consideration. To maintain that judgments thus confessed in — 289 — courts of general jurisdiction are nullities, would be affecting tbeir validity to an extent beyond all reason. It would be giving those who have no interest in the transaction, and who can in no way whatever be affected by it, a power to defeat it. If all those who are in anywise interested in a judgment acquiesce in it, why should a stranger be permitted to call in question its validity ? Under the principle contended for, all those whose rights are affected by a judgment may acquiesce in it; land may be seized and sold under it without any objection by those who are interested; and yet if after-wards a stranger should enter on the purchaser, he could not be ejected, because the judgment being a nullity no sale under it would convey a title. When a judgment has been entered in a court of general jurisdiction, none of the cases cited go the length of maintaining that a defect in the statement under which it was confessed would render it wholly ineffectual and void for all purposes. The statement may be amended; the judgment may be reversed, vacated or set aside; but none hold that it is a nullity. When the general power of a clerk to take a confession of a judgment is conceded, why should that judgment, entered on the records of the court, be regarded otherwise than those rendered by the court in term time ? It is a judgment of a court of general jurisdiction, and until it is invalidated it will pass a title by a sale under it. The very case of Chappell v. Chappell, to which reference has been made for another purpose, is a strong one to show that, for a defect in the statement like that in the case before us, the judgment is not a nullity. To the same effect are the cases of Plummer v. Plummer, and Schoolcraft v. Thompson, 7 How. Prac. Rep. 62, 446. The cases of Parker v. Briggs, 1 Southard, 161, and Clever v. Applegate, 2 Southard, 479, were in relation to judgments confessed in an inferior court. Another point in the cause is, that the judgment confessed, even though not void, is yet no lien; that the statute authorizing the taking a confession of judgment does not confer a lien on the lands of the defendant. We do not consider that — 290 — there is any force in this objection. The chief inducement to the taking a confession of judgment is the security it gives by reason of the lien. The lien of a judgment, according to the principles of the common law, is not created by the express words of a statute to that effect, but it is considered as an incident to the right to subject the land to execution. So soon as land was subjected to execution for debt, just so soon the courts held that the judgment was a lien. It will hardly be maintained that an execution could not be issued on a judgment confessed under our statute in relation to the confession of judgments without action. (Reed v. Austin, 9 Mo. 722.) We are not of the opinion that the pleadings and evidence in the cause involve any question touching the skill of the defendants in their profession. The complaint is of negligence in performing an act which was undertaken to be done, whereby the plaintiff lost the security for his debt. If the existence of the judgment had been communicated to the agent of the plaintiff, he might have altogether refused the security offered. He might have been unwilling to incur any risk and would have held on to the possession of his goods. It is not for the defendants to fail to inform themselves of the existence of the judgment, and afterwards maintain that it was erroneous or irregular, or that there was or might be a question of its validity about which members of the profession might entertain contrary opinions. The judgment itself, as a fact, should have been sought after in the docket and a knowledge of its existence communicated to the plaintiff, who would then have determined for himself whether he would take the security. There is no ground of complaint against the plaintiff because he did not communicate to the defendant the fact that his debt was not paid at maturity, and on account of his subsequent delay in enforcing its collection. Believing from the information of the defendants that his debt was secure, nothing was more reasonable than that he should rest satisfied until it was his pleasure to collect his debt. If he had not — 291 — been misled by the advice he received, no one possibly could have been injured by such a course, and it is not for those whose conduct was the cause of the delay afterwards to complain of it. Judge Napton concurring, judgment affirmed.