McAleer v. Young

Bartol, C. J., delivered the opinion of the Court. This appeal is from an order dissolving an injunction. The material facts of the case, as disclosed by the pleadings and proof, cannot be more succinctly stated, than in the opinion of the -Judge of the Circuit Court, sent up with the record as follows: “The bill was filed by the appellant on the 20th May, 1810, praying for an injunction, to restrain the execution of a fieri facias on a judgment recovered by Jacob M. Kunkel, use of Ezra Houck, vs. Hugh McAleer and others, and by said Houck assigned to the said Daniel Young. “ The material allegations of the bill are that on the 31st August, 1861, Hugh McAleer, John A. Smith, Charles Smith, Oscar P. Crampton, Joshua Ahalt and Samuel Ahalt, made their joint and several promissory note for $5000, payable to Jacob M. Kunkel in ninety days. That on the 22nd January, 1810, suit was instituted thereon, against all the parties to the note, that on the 12th February, 1810, the note was by writing transferred to Houck, and on the 5th March, 1810, the suit was entered for his use.

That on the 9th May, 1810, judgment was rendered for the plaintiff for $5801.50 and costs ; on the same day the judgment was assigned by Houck to Daniel Young ; and on the next day, an order was filed by the plaintiff’s attorney directing the judgment to be entered for the use of Daniel Young. That on the 24th April, 1811, a writ of fieri facias on the judgment was sued out by Young, and a levy made by the sheriff on the property of the complainant alone, by direction of said Young, which property formerly belonged to Hugh McAleer, that the sheriff has advertised the property, and threatens to sell the same. The bill alleges that Young is not a hona fide ⁴⁴² assignee of the judgment, that Houck was not a bona fide assignee of the note; that the right to the same and the judgment thereon passed to the administratrix of Kunkel, who died on the 7th April, 1870. “That the defendants or some one or more of them confederating with Young for the purpose of perpetrating a fraud upon the process of the Court, advanced the money to Young, wherewith the judgment was procured to be entered for his use ; that the threatened sale of the complainant’s property, in pursuance of said fraudulent combination is vexatious and inequitable. That the said judgment is not due but has been paid and satisfied, and that it would be inequitable, and a fraud upon the complainant to enforce the same.

The defendants were required to answer under oath. “All the charges of fraud, combination, mala fides, want of consideration in the assignment and transfer of the judgment are fully denied in the answers under oath. “It is admitted by the parties that the land levied on by the sheriff, was the land of Hugh McAleer, and was conveyed to Michael, the complainant, on the 1st August, 1870, about three months after the judgment was rendered.” Certain exceptions to testimony were filed by the complainant in the Circuit Court, which were sustained. We think this ruling was correct, and ought to be affirmed. The several grounds of relief on which the appellant relies are, First. Because the judgment has been paid and satisfied. “ Second.

Because there is a fraudulent combination by the appellees to pervert the process of the Court into an engine of oppression, and to that end they have induced Young, who has knowingly and willingly consented to be their instrument, to purchase the judgment, and to proceed to collect the same by execution against the property of the appellant; and therefore he is not a bona fide assignee of the judgment. .... ⁴⁴³ “Third. That Young has no title to the judgment, and ought not to be allowed to enforce it.” These will be considered in their order. First. Has the judgment been paid and extinguished?

There is no evidence that the defendants in the judgment or any of them have paid any part of it; Young the assignee was a stranger. The proof shows tliat he bought it, as an accommodation for his uncle Samuel Ahalt, one of the defendants in the judgment, and that he paid for it with money borrowed from the hank. The argument on the part of the appellant is, that because his note discounted at the hank, was signed by Samuel Ahalt, Joshua Ahalt, Oscar P. Cramp-ton, Charles Smith and Cornelia Y. Smith who were defendants in the judgment, that the payment of the money by Young to Houck was a payment by the defendants, and operated to extinguish or satisfy the judgment. But it is shown by the evidence that they signed the note only as sureties, the