Pike v. Pike

Eastman, J. The authorities cited by the counsel for Chase fully establish the rule that persons having equitable rights, which can be enforced in courts of law only in the names of parties in whom the legal title is vested, may prosecute and defend those rights in the names of the persons in whom the legal title exists. It is of course to be understood that in such cases a full indemnity for costs must be furnished if required. And persons in whom the legal' title exists cannot control the suits thus necessarily brought in their names; nor will their admissions, subsequent to the time that they ceased to have an interest, be evidence to defeat them. Webb v. Steele, 18 N. H. Rep. 230. The instances in which questions of the kind arise are usually those of contracts, judgments and choses in action not negotiable, and they ordinarily occur as affecting the action of plaintiffs. It is also a matter of familiar practice in this State to permit subsequent attaching creditors to defend suits in the name of the defendant upon the record, upon the alleged ground that the claims are without foundation, and with the view to render available the subsequent attachments. Buckman v. Buckman, 4 N. H. Rep. 319; Webster v. Harper, 7 N. H. Rep. 594; Blaisdell & al. v. Ladd, 14 N. H. Rep. 129. In the last case cited, the rule was applied so that a subsequent attaching creditor might appear and show cause why a trustee should not be charged in a prior suit. But in all such cases, where an appearance is granted, the interests to be affected should be direct and apparent; such as would suffer, if not indeed be sacrificed, were the court to deny the privilege. Unless it is quite apparent that injustice will be done by a refusal, parties should be required to litigate and try their rights in their own names. In the case before us, Chase’s wife held the title to the property attached, subject to the mortgage to Eossiter, by a voluntary conveyance from Polly Pike, her mother. Being a mere voluntary conveyance, it was void as to any valid claim against Polly Pike existing prior to and at the time of the deed. Carlisle v. — 395 — Rich, 8 N. H. Rep. 44; Smith v. Smith, 11 N. H. Rep. 459; Kimball v. Fenner, 12 N. H. Rep. 248. The suit of Samuel L. Pike against Polly was founded upon a elaim bearing date prior to the conveyance, and if it was for a good consideration it would avoid the conveyance to the extent of the claim at least. Samuel L. Pike, then, having attached the land, Chase and his wife had an interest to defeat that suit, and thus prevent the application of the property to the satisfaction of any judgment that might be obtained therein. Had the land been unincumbered, and thus subject to be set off to Samuel L. Pike on the execution that might be recovered by him, there would have been no occasion for the appearance of Chase to defeat the action, since upon a question of title to the property, in a suit between Chase and Samuel L. Pike, the validity of the judgment obtained by Pike would have been open to inquiry by Chase. But if the equity of redemption be regarded as a chattel interest, so that the title of the purchaser could not be affected by the validity of the judgment, as in the case of goods sold upon execution, then there would seem to be no way in which it could be regained by any subsequent suit at law by Chase. Consequently, unless the suit of Samuel L. Pike against Polly could be defeated, the equity would pass beyond recovery by Chase. At all events the interest of Chase and his wife was so direct and apparent in the original action in the common pleas, that whether the equity would pass as a chattel or not, we see no objection to the ruling of the court there, by which Chase was permitted to appear and defend that suit on giving security for costs, as required; although it is going quite as far, if not farther than the court have ever gone heretofore. In that suit Polly Pike, the defendant of record, in whose name Chase was permitted to defend, was defeated. Chase paid the costs according to the tenor of his bond, and withdrew it from the files of the court. Execution was taken for the amount of damages recovered, and the equity of redemption sold. The execution was satisfied by the sale of the equity, and thus that action was terminated. — 396 — If Chase can maintain this suit upon the writ of review which he has sued out in the name of Polly Pike, it must be as a matter of right growing out of his appearance in the original action; which appearance was obtained by the permission of the court. He was not known in that suit, except as he had leave to appear and defend, and he could not have appeared unless by permission given. There is no provision of law by which he could appear as a matter of right. He was not a party to the record, and no execution could have issued in his name, either for or against him, and he was not liable for costs, except by virtue of the bond which he was required to file. Holland v. Seaver, 1 Foster’s Rep. 386; Little v. Bunce, 7 N. H. Rep. 485. The record, when reduced to form, was made up between Samuel L. Pike and Polly Pike, and Chase’s name appears not in the record, but only upon the docket, as having leave to appear and defend that suit. Independent, then, of his leave to appear, he could not have defended that suit; and if he could not have defended it except by permission, he cannot bring this writ of review, which is a new proceeding, without some previous leave to do it, unless the permission given in the original action can extend so far as to permit the writ of review to be brought. This question involves an inquiry into the nature of an action pending by writ of review, and how far it is to be regarded as a continuation of the former suit. The Revised Statutes provide that all civil actions in which judgment has been rendered, and in which an issue of fact has been joined, except those in which by law a different provision is made, may be once reviewed. Rev. Stat., chap. 192, § 1. By the second section of the same chapter it is enacted that the superior court may grant a review in any other case, when it shall appear that justice has not been done through any accident, mistake or misfortune, and that a further hearing would be just and equitable. Section nine provides that every case shall be tried upon review in the same manner as if no judgment had been rendered — 397 — therein, and any new or further evidence may be produced therein. And it is also provided by sections ten and eleven, that if the amount of the property, debt or damages recovered by the original plaintiff is increased on review, he shall recover judgment for the excess and costs; and if such amount is reduced, the original defendant shall recover judgment for the amount of such reduction and costs. If the original plaintiff reviews and does not recover a greater amount than in the former suit, the defendant recovers costs; and if the defendant reviews and the amount of the former judgment is not reduced, the original plaintiff recovers costs. The writ of review does not operate as a stay of execution upon the first judgment, nor does it ever operate, in form, as a reversal of that judgment, but the original judgment stands. Rev. Stat., chap. 192, § 13; Knox v. Knox, 12 N. H. Rep. 357. If the original action should be a writ of entry, and the plaintiff should succeed, but upon review the tenant should be successful, the judgment in review would not be a reversal of the former judgment as upon a writ of error, but the judgment would be that the tenant recover the land with costs of the review. So in case the plaintiff in the first suit recovers judgment for damages and costs, and on review a general verdict is returned for the defendant, restitution is obtained, not by a reversal, strictly speaking, of the first judgment, for that stands, and the execution issued thereon also, but by having the second judgment made up for the defendant ,to recover the amount of damages for which the first execution issued, and also costs of the review. The defendant is entitled to a judgment for such damages as will correct the error of the first judgment for damages; and although the review arises out of, and is dependent upon the original suit, and although the matters to be tried in it are the matters in controversy in the original suit, and are to be settled upon the former evidence, or such other and further evidence as the parties may produce, still the review is in effect a new action — 398 — to recover back, in the shape of damages, what the defendant alleges has been wrongfully obtained from him by an erroneous decision upon the first trial. Knox v. Knox, 12 N. H. Rep. 358. The second judgment, in case the action be for debt or damages, does not restore to the defendant his property and money which have been taken from him by the execution issued on the first judgment, but it simply gives him an execution against the original plaintiff to recover the damages which he has satisfied on the first judgment, or such part thereof as the second judgment shall be for. If the plaintiff has collected his execution, and is insolvent, the defendant is remediless, unless he has availed himself of the provision of the statute and the rule of court made in accordance therewith, by which the court, on motion, may order a stay of execution where it may appear just and reasonable. Rev. Stat., chap. 192, § 13; Rules of Court 47. Were it not for this statute, reviews would, in many instances, be worse than useless to defendants. When an action is reviewed, the suit is brought into court again by a new writ, reciting briefly the former proceedings. A new entry is made upon the docket, and the case is tried in the same manner as if no judgment had been rendered therein. We have seen, too, that the second judgment has no effect upon the former one, and no effect upon the execution on the same, unless it has been stayed by order of the court. Can then the permission which is given to a third person to defend a suit upon the condition that the applicant shall give bond to pay costs, be held to extend so far as to give him the power to bring a writ of review between the parties, against their will, after an adverse termination of the first suit, a payment of costs by the applicant according to his bond, and a withdrawal of his bond from the files of the court ? We think that it cannot. Such is not the understanding or expectation of the parties at the time leave is given, and such is not its legal effect. If it were so, then the party appearing should give bond, not only to respond all costs that might be recovered against him in — 399 — that action, but all that might also be recovered in an action of review. When the first action is terminated there is an end of the litigation, unless a new suit shall issue, and the controversy be resuscitated by the operation of the writ of review. The leave given to appear and defend, is to appear and defend the action then pending; not another action brought into court by another writ, and in which, whatever may be the result, a new and different judgment, not disturbing the original judgment, is to be entered. The bond given is to pay the costs in that action, and not those which may arise in a subsequent action, although founded upon the same controversy. The appearance is upon the condition that a bond be filed for the payment of costs. Unless that be done the leave is not granted; and without a compliance with the condition the court would at once strike the appearance, if entered, from the docket. The bond is the foundation upon which the appearance rests, and the leave to appear gives the right to continue in the action to that extent, and no farther, for which provision is made in the bond that costs shall be paid. The condition being to pay the costs that shall accrue in that action, the appearance terminates with the condition upon which it was granted, and, of course, with that action. In this case the applicant, after paying the costs, withdrew his bond, and thereby removed the foundation upon which the appearance had been granted and upon which it rested. He thus closed his connection with the suit, and independent of the ordinary result upon an appearance in like cases, he has put an end to whatever rights he may have acquired by. the filing of the bond, and the writ of review must be regarded as brought without any legal right and without any leave of court. At the time the verdict was returned, probably Chase might have procured an order for a stay of execution, and such further order as would have given him the right to review. He may now, perhaps, not be without remedy at law, by application to this court for the right to review under § 2, chap. 192, Rev. Stat., although it is a question deserving consideration, whether, — 400 — if he should review and recover judgment, he would himself have the right to collect and apply the avails of the execution to his own use. His leave to appear was for the purpose of protecting his land. That has been disposed of, and a judgment on review' gives him not back the land, but an execution for the amount of damages, or a part of them, which were recovered in the first suit. But we do not intend to express any opinion as' to these questions, but leave them to be fully examined and decided whenever they shall arise. • According to the facts stated in this case the motion to dismiss the action must prevail. Motion granted.