NUNN V. MATLOCK. VOL. 17 Robert H. Atkins, sued out an execution against them, which was levied upon certain personal property of Goodlett, consisting of 50 head of hogs, two head of horses, 1 wagon, two saddles, 3 beds and furniture, 1 grindstone, 1 steel mill, 4 ploughs, 2 pair of gear, 6 head of cattle and one ox yoke. The execution, in virtue of which this levy was made, was returnable on the first Monday after the fourth Monday in September, A. D. 1849, and the levy was made the 21st of that month. That day, Goodlett, with John Matlock as his security, executed a forthcoming bond for the delivery of the property so levied upon, to the sheriff, at the residence of Goodlett, on the first day of October following. *Immediately afterwards, one I:*513 Thomas, claiming the property levied upon, as trustee, under the provisions of a deed in trust executed by Goodlett, on the 26th April, A. D. 1847, for the benefit of Matlock & McCollum, which by that firm had been transferred to 5129 *NUNN El AL. the individual benefit of John Mat-lock, gave notice in writing thereof to V. the sheriff, under the provisions of the MATLOCK. statute (Digest, chap. 67, sees. 32, 33, A court of equity is competent to relieve against 34, 35, 36), and demanded a trial of the an ordinary judgment obtained in a court of right of property. record by means of fraud; and the statutory judg-The sheriff proceeded accordingly by ment springing into being upon the forfeiture of a forthcoming bond, cannot stand upon any higher jury, who failed three several times to ground: A nd so, where there is fraud in procuring agree on a verdict. The last mis-trial an execution to be levied upon property not sub-was on the day appointed in the forth-ject to execution; and in procuring the bond given coming bond for the delivery of the for its delivery, to be forfeited, and so returned by the sheriff, the court will grant relief by perpetual property levied upon, and so claimed, inj unction. and, by previous advertisement of the Appeal from Ouachita Circuit Court. sheriff, for the sale of the same. The sheriff then proceeded to the place ap-HON. SHELTON WATSON, Cir-pointed for the delivery and sale of the cuit Judge. property, and Goodlett there pointed Gallagher, for appellants. out to him, and offered to surrender all If atkins & Curran, for appellee. of it to him, except the 50 head of hogs, and the six head of cattle. The SCOTT, J. SamuelNunn, one of the sheriff refused to accept this partial appellants, having a judgment in the surrender of the property levied upon, Ouachita circuit court, against Spartan and, at once, returned the forthcoming G. Goodlett, Hugh W. Ashley, and bond, forfeited.
JA N. TERM, 1856. NUNN V. MATLOCK. At the return term of the forthcom- swer, but then proceeds by way of crossing bond, no motion was made to bill, under the statute, and charges, quash it and the execution out of in substance, that Atkins and Ashley which it bad sprung, although it seems falsely and fiaudulently represented to liable to objection in the fact, appar- the sheriff previously to any levy of the ent upon the face of the bond, that the original writ of execution, and while sheriff had improperly united two sev- it was in his hands for levy against all eral and distinct judgments in favor of the original defendants therein, that two several plaintiff, in the forthcom- they, Ashley and Atkins, had paid the ing bond, thus improperly blending debt, interest and costs, and had full the separate rights of different and un- authority ffom the repondent, Nunn, connected plaintiffs, in vexatious if not to control the said execution, and di-in inextricable confusion. rect the said sheriff's action and pro-At the next succeeding term—tnat ceedings thereunder, as in the name of to which the execution upon the statu- Nunn ; all of which was false, And tory judgment was returnable—a mo- that the sheriff, placing full confidence tion to quash the forthcoming bond in the false and fraudulent representa-was made, for various alleged causes : tions, obeyed the instructions of Ashley the irregularity pointed out, not being and Atkins throughout, from the levy one of them, and was overruled ; but to the final return of forfeiture of the no exception appears to have been forthcoming bond. And, at their spe-taken, or writ of error sued out ; the cial instance and request, levied the motion, doubtless, having been con- execution upon the alleged trust prop-sidered out of time. erty, and continued to insist upon that This last mentioned execution levy, and resisted as aforesaid, the appears, from the return of the claim of Thomas, as trustee, in behalf 5141 *sheriff, to have been arrested of Matlock, after that claim had been in its progress by a writ of injunction, interposed up to the return of forfeit-which a master in chancery had as- ure upon the forthcoming bond. sumed to order, upon a bill in equity The answer of Nunn then proceeds filed to this term, by Matlock against as follows, to-wit: "And this defend-Nunn, praying relief against the forth- ant further says, that the said Hugh coming bond by injunction and other- W. Ashley and Robert Atkins have in-wise. In this bill, Matlock alleges, termeddled with the business of thir that the property levied upon, was not defendant herein, without- per-subject to the execution, and that, mission from him, his agent or attor-knowing this to be so, he executed the 5 ney, and falsely and fraudu- [4'5115 forthcoming bond, as the security for lently assumed to control said execu-Goodlett, with the full expectation and tion, and to direct the said Green L. belief that the sheriff would, in the Grant, as such sheriff; in the execu-mode provided by the statute, try the tion and satisfaction thereof, and right of property interposed in nis be- falsely and fraudulently represented half, by the trustee, Thomas, and make that they, or one of them, had paid this manifest. And he charges that and satisfied said execution, when in the proceedings of Nunn and the sher- truth and in fact, they had not, nor iff in the premises, and iu procuring had either of them paid the same, or the bond to be forfeited, and so re- any part thereof: and by their said turned by the sheriff; were fraudulent false and fraudulent representations to his injury. and conduct, have subjected this de-This, Nunn at first denies in his an- fendant to great costs, damages and
NUNN v. MATLOCK. VOL. 17 expenses in regard to the said several same by execution, or in any other trials of the right of said complainant wise whatsoever. That Atkins and to said property. Wherefore, this de- Ashley should pay all the costs of the fendant prays that the said Hugh W. proceedings in the trials of right of Ashley and Robert H, Atkins may be property, and also the costs in this made parties to the complainant's said cause ; and that Nunn should be re-bill, and that they, upou their respec- mitted back to his judgment at law in tive corporal oaths, may answer the the circuit court, against Goodlett, interrogatories hereunto annexed, and Atkins and Ashley, and have execu-this defendant may have a decree tion of the same. over against them, the said Ashley From this decree, Nunn, Ashley and and Atkins, for all costs and damages Atkins, appealed to this court. occasioned by the levy of the said In several particulars, these proceed-original execution upon said property, ings are quite irregular and open to ob-and in case said injunction shouid be servation ; but we have no concern perpetuated, that this defendant may with anything that does not operate have a decree of this court over against to the prejudice of the rights of the the said Ashley and Atkins, for the appellants. debt, interest aud costs, in said original As to two of them, Ashley and At-execution specified, together with all kins, it is entirely clear in our opinion, the said costs and damages, which this that, they have no ground of complaint defendant . may have sustained by whatsoever. It is not possible that they 'reason of the levy of the said original should have expected to have been al-execution on said property claimed as lowed in a court of equity, any benefit aforesaid, by said complainant, and from a judgment directly resulting inch other and furtuer relief," &c. from their own falsehood, misrepre-In obedience to process ordered by sentation and fraud, which they the court, Ashley and Atkins appeared openly, by their solicitors, admit upon by their solicitor, and not only con- the reLord. sented to be made parties, as prayed by It. would be strange, indeed, if, by a Nunn, but also that the allegations of judgment so superinduced, they could Nunn's answer, by way of cross-bill, be discharged from their liability to should be taken against them as con- Nunn on his judgmeut against them fessed to be true, and the relief prayed and Goodlett. against them decreed accordingly. The decree against them for costs we Afterwards, the case was finally think equitable and just But, al-heard upon the bill and exhibits, the though all this may be so, unless the answer and exhibits, both as such, and statutory judgment arising upon the as a cross-bill, and the whole of the forfeiture of the forthcoming bond can proceedings of record on the law side be properly held as invalid in a court of the court, including the forthcom- of equity under the facts and circum-ing bond, and the several executions stances in this cause shown, as against and returns thereupon made by the Nuun, and in favor of Matlock, these 5169 sheriff. Whereupon, *the court two parties (Ashley and Atkins), al-decreed that the forthcoming bond, though not entitled to relief, would en-and the sheriff's return of forfeiture joy it so far as the original judgment thereof, and the execution issued upon against them was concerned. There can same, should be null and void, and be no doubt, however,of the competen-that Nunn should be perpetually en- cy of a court of equity to relieve against pined from further proceeding on the an ordinary judgment, obtained in a
JAN. TERM, 1856. court of record by means of fraud, and kins are insolvent; hence, no probable 5171 *this statutory judgment cannot injury to Nunn is apparent from this possibly stand upon any higLer ground. source, while Matlock being a mere se-Matlock charges in his bill that it was curity, must be inevitably injured, if 30 obtained; and although Nunn, in his held bound, because it does not appear direct answer to Matlock's bill, de-that Goodlett is insolvent. nies this, yet, when his entire answer, Upon the whole case, we think the including that which he makes by way decree rendered ought to be affirmed. of crozs-bill, is considered together, he Nove.—On equity interference see Dugan V. virtually admits it-to be true. And the Cureton, 1-41. note 3. same may be said of Matlock's other allegation, that the property levied upon was not liable to the execution, because Nunn substantially presents the very fact as an independent ground of relief against Ashley ana Atkins for costs and damages, to which they have, as he alleges, subjected him by fraudulently intermeddling with his execution, and causing it to be levied upoc the property in question; and this not by way of alternative relief, as he also prays shall be decreed him in case the injunction of Matlock should be perpetuated, but absolutely and in any event. Matlock is in no manner upon this record shown to be in fault, nor in any degree implicated in the fraudulent practice and proceedings which Nunn charges, and Ashley and Atkins admit, finally resulting in this statutory judgment against which Matlock seeks relief. Thus Nunn, in effect, insists as against Matlock, that this judgment shall be held valid, and at the same time alleges it to have been obtained by fraud of Ashley and Atkins, and on that ground seeks relief against them for the Costs and damages to which he alleges they have subjected him by means of their frauds. Certainly, in a court of equity, he ought not to be allowed any benefit from a fraud against an innocent party, which he repudiates and seeks redress for as against the fraudulent. It would be to adopt a wrong, and claim benefit from it. It does not appear that Ashley and At-
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.