Lomison v. Faust

Per Curiam: Upon its admitted facts this is an extremely hard case. The story of the appellant, as set forth in his petition to open the judgment, is substantially as follows: That about four years prior to his application to have the judgment opened, he purchased of the plaintiff, Dr. H. G. Lomison, for the sum of §7,500, a farm situated in Upper Tyrone township, Fayette county ; that the said Lomison desired him to sign a judgment note for §6,500, as security for the unpaid portion of the purehasé money; that he refused to sign such an instrument, stating at the time to Lomison that he would give no other security for said balance of the purchase money than the land so purchased; that the plaintiff then said he would go to his lawyer and have a mortgage prepared ; that a mortgage and a judgment bond were accordingly prepared, and were both signed by the petitioner; that when the petitioner signed the bond he believed it to be a part of the mortgage, and never supposed it was a bond that would give to the plaintiff a separate and independent lien on all his property, and that he would not have signed it had he so known; that he did not know that judgment had been confessed against him on said bond, or that such could be done, until the sheriff of the county [12] came with a fieri facias, levied on his personal property, and sold the same for about four hundred seventy-five dollars ; that since the sale of his personal property the farm which he so purchased of the plaintiff was levied upon and sold by the sheriff upon an execution issued by the plaintiff to the latter, for the sum of one hundred dollars ; that after petitioner purchased said farm and went into the possession thereof, he built a new bam thereon at a cost of one thousand dollars, and other out-buildings at a cost of about five hundred dollars; that he built fences and cleared up the farm at a cost of about one thousand dollars, and that he paid one thousand dollars of the purchase money at or about the time of the execution of the mortgage. The petitioner further alleges that the plaintiff has issued another writ of execution and levied upon another farm belonging to the petitioner, and is about to sell the same. Upon the filing of the petition in the court below, the learned judge granted a rule to show cause why the judgment should not be opened, with a stay of proceedings. Upon the hearing of this rule, the allegation that any deception had been practiced upon the appellant, in regard to the nature or legal effect of the judgment bond, was flatly denied by the appellee, in which he was sustained to some extent by the gentleman who prepared the papers. On the other hand, there was nothing to sustain the appellant’s allegation but his own oath. There was therefore mei'ély oath against oath, with the presumptive evidence of the papers themselves in favor of the plaintiff, appellee. Under such circumstances, the court below could not have done otherwise than discharge the rule. How regretfully it was done appears from the concluding paragraph of the opinion of the learned judge. It is as follows : “ The defendant has been sadly dilatory and negligent in the whole matter, but most probably his present unfortunate condition is to be attributed primarily to his lack of knowledge. He should be afforded relief, if a way for it can be found, and I have held the case this long in a vain endeavor to discover such way. I feel obliged, therefore, to discharge the rule; but do so in hope that the defendant will carry the case to the Supreme Court, and that that court will be able to point out some method by which the defendant may avoid this oppression.” [13] We would gladly relieve the appellant, if we could do so consistently with the well-settled rules of law. If we throw out of the case, as we are compelled to do, his allegation that the plaintiff deceived him in regard to the judgment bond, the fact remains that the plaintiff is making an unconscionable use of his power. He has his farm back, with one thousand dollars of the purchase money in his pocket, and permanent improvements far more valuable than the three ypars’ rent which he has lost. He also sold the defendant’s personal property for four hundred seventy-five dollars. In addition, he has his judgment in full force and 'unsatisfied for nearly its whole amount, the result probably of the appellant’s ignorance or neglect in not having the farm bid up so as to cover it. The appellee is now proceeding to sell, upon this judgment, another farm belonging to appellant, after which he will still hold a mortgage upon his life and earnings for all time to come. We are glad to say that we are seldom called upon to pass upon such a case as this. If we possessed unlimited power we might perhaps relieve the appellant. But we administer the law by fixed rules, and in accordance with established precedents ; and we cannot stay the hands of a creditor, who is merely pursuing his legal remedies, because the case as presented to us may appear to be a hard one. Were we to depart from this rule, the evil we would do would be greater than the particular hardship we sought to remedy. Affirmed.