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This Court having, at its last term, in the extract from a letter from G. C. Russell to J. case of Russell vs. Southard and others, de- W. Wing, dated Alexandria, 19th December, cided that a conveyance of land near Louis-1827, which is filed herewith. This extract vills, Ky., by Russell to Southard, was a is entirely in the hand writing of W. O. Payne, mortgage, and that the mortgagor might re- who died long before the institution of this deem on terms prescribed in the opinion, suit, and certified over his signature to be Southard petitioned for a re-hearing-and his truly executed, on the 16th January, 1828." petition being overruled, the Circuit Court, in obedience to the mandate, entered a decree for redemption, and continued the case for further preparation as to some of the defendants. Whereupon Southard filed in that Court a bill of Review, praying for a review, or a change of the decree for redemption, on the allegation that, since the date of the original decree by the Circuit Court, he had made the following discoveries:
1. That the attorney (Stewart) who brought Russell's suit illegally, fraudulently, and corruptly obtained, by direct bribery, the testimony and deposition of Peter Wood, a material witness in the case, and upon faith in whose statements the Supreme Court was in duced to render its decision."
8. That he has seen what purports to be an official extract from the schedule of estate surrendered by Russell, under oath, when he took the benefit of the insolvent act of Alabama, one item of which is a debt against John Floyd for $8,000. This together with the extract of the letter from Russell to Winn, induces the belief that the sale from Floyd to Russell was coupled with some sort of contract between them, which authorized Russell to look to Floyd for whatever difference there might be between the price obtained on a resale of the farm, and that which he paid Floyd therefor."
Such is the anatomy of the Bill of Review, which, with the leave of the Circuit Court, Southard filed. Russell, in his answer to that 2. That the contract under which Stewart bill, denies that the allegations are sufficient brought the suit was champartous, entitling for maintaining a Bill of Review-denies Stewart to one-half of the land in the event
3. That "just before the sale of the farm to James Southard, it was offered by Russell to George Hancock and the late Mrs. Caroline Preston for the price of $5,000, and he was urgent with each of them to buy at that price."
4. That shortly previous to the sale to J. Southard, the farm was advertised and offered for sale by Russell at auction, and not sold for want of bidders-though your orator has "some imperfect recollection of such having been the fact."
champarty, and shows that, by his contract with Stewart the latter was to have a contingent fee of one-half of the value of the land redeemed-alleges that there was no specific agreement as to the amount of the fee until after the suit was brought-that there was no understanding or purpose that Stewart should have any interest in the land until after this Court decided the case, when, at the instance of Henry Clay, one of his counsel here, he conveyed to Stewart half the land for securing his own fee, and the fees also of Mr. Clay and of several others of his counsel in this Court and in the Court below-denies, that any cor5. That Talbot had sold, for only about rupt influence was exercised in procuring Dr. $4,000, property in Huntsville, which, at the Peter Wood's testimony-avers that his testiestimate of $10,000, he testified, in the ori-mony was strictly and wholly true-states ginal suit, he had offered Russell for the land that, when he visited Kentucky in the Fall of afterwards conveyed to Southard. 1827, his manager, Wing, presented to him a 6. That James C. Johnson, a witness in the list of debts to a large amount, incurred by original case, will prove that the Supreme his (R.'s) agent, among which was a debt to Court has entirely misconceived or miscon- Wood and another to Dr. Smith-that when strued what he intended to say in his deposi- he brought his suit, he gave Stewart a memotion, as will appear by his affidavit filed here- randum of witnesses, of whom Wood was one, and, being informed by Stewart that Wood and Smith claimed payment of their said debts, and that he had presented to him by
7. That "he has found among the papers of J. Southard what purports to be a written
Wood a bill for medical services and borrowed by an original bill in the nature of a Bill of money, authenticated by Wing's endorsement, Review. he authorized Stewart to give a note for it, A Bill of Review and a bill for a new trial which he afterwards understood Stewart had of an action depend on the same principles, done, for $280-and denies that there was any and are governed by analagous rules of pracother motive or consideration for that note tice; and neither of them, as we insist, can be than a desire to satisfy an honest debt-denies maintained on the extraneous ground of a that the decree of the Court would have been discovery of new testimony, unless the comotherwise than it was without Wood's testimo-plaining party had been vigilant in the preny-insists that, as Southard had, in the ori- paration of the original suit, and could not, by ginal case, endeavored to impeach Wood, and proper diligence, have made the discovery in had, in his petition for a re-hearing in this time to make it available on the trial-nor unCourt, said that he had always suspected that less the discovered testimony will prove a fact he had been suborned, he had been negligent which, had it been proved before or on the in not showing sooner the fact of the existence hearing of the original case, would have proof the note to him for $280-and avers that duced an essentially different judgment or this matter is no cause for a Bill of Review- decree-nor unless the new evidence be either denies that he ever offered the land to Han- documentary or, if oral, shall establish a fact cock or to Mrs. Preston for $5,000-denies not before in issue for want of knowledge of that he saw Hancock during the year 1827- the existence of the fact or of the proof of says that, instead of offering to buy his land, it. This is the long and well settled doctrine Mrs. Preston proposed to borrow from him in Kentucky, (See Respass, &c., vs. McClan$5,000-denies that there was any such un-ahan, Hardin, 347; Forbes vs. Shackleford, derstanding with Floyd as charged in the bill 1 Littell, 35; Taney vs. Downer, 5th, Ib. 10; -avers that he could, any day, have sold the Findley vs. Nancy, 3 Mon. 403; Hendrix's land for much more than $5,000-that J. D. Breckinridge informed him that he could get $9,000 for it, but he was unwilling to take that sum for an absolute conveyance-denies that any specific property in Huntsville was offered by Talbot, and avers that the offer was $10,000 in property of that value-denies the materiality of Johnson's explanation of his deposition, or his right to construe it for this Court, or Southard's right now to bring that explanation in-denies the genuineness of the extract from a letter to Wing, argues to prove that it is false, and avers that the spurious paper has been lately and fraudulently altered, by erasing 'redeem,' and inserting re-purchase'-denies that any of the various grounds specified in the bill are sufficient to justify a review-insists that all of them were involved in the issues previously litigated-avers that, in not presenting them in proper time, Southard was guilty of gross negligence and concludes by averring that, from the beginning of this litigation, Southard had been guilty of the most unscrupulous frauds and foul play, and appeals to the record to prove it-and finally denies all fraud and every allegation not directly answered, and prays a dismission of the bill and an enforcement of his decree.
The Circuit Court dismissed the bill-and Southard has appealed.
heirs vs. Clay, 2 A. K. Marshall, 465; Respass &c., vs. McClanahan, Ib. 379; Daniel vs. Daniel, 2 J. J. Marshall, 52; Hunt vs. Boyer, 1 Ib., 487; Brewer vs. Bowman, 3 Ib., 493; Ewing vs. Price, lb. 522.) This doctrine is as rational every where as it is authoritative in Kentucky; and we think that it is generally recognised and maintained wherever the equitable jurisprudence of England prevails. It is co-existent with the ordinances of Chancellor Bacon, of which that one applying to Bills of Review on extraneous ground has been, from the year of its promulgation, interpreted as requiring either new matter not before litigated, or recorded or written evidence decisive of a fact involved in the former issue, and of the existence of which memorial the complaining party was, without his own fault or negligence, ignorant, until it was too late to use it to prevent the decree sought to be reviewed. (See Hinds' Practice, 58; Gilbert's For Rom. 186; Story's Equity Pleading, 433-4, N. 3 Taylor vs. Sharp, P. Wm's 371; Norris vs. Le Neve, Atk., 33-4, 2 Maddox, Ch'y, 537; Partridge vs. Usbome, 4th Russell, 195; Wiser vs. Blackly, 2 Johnson's Ch'y Rep's, 491; Livingston vs. Hubs, 3 Ib., 126.)
Discovery of additional witnesses, or of cumulative or explanatory evidence "by the swearing of witnesses," has never been adjudged a sufficient ground for a Bill of In arguing the case, we will first briefly Review, or for a new trial of an action. The consider the law which must govern the de- rule applied by most of the foregoing authorcision of it. As Southard's Bill of Review |ities, and virtually recognised in all of them, does not question the correctness of the opin- is dictated by obvious considerations of poliion of this Court on the original record, but cy, security, and justice. A relaxation of it relies altogether on an alleged discovery of so as to allow a new trial or review, on the alevidence since the date of the first decree in leged discovery of corroborative or explanathe Circuit Court-an inquiry into the cor-tory testimony of witnesses, would open the rectness of the decision sought to be reviewed door to fraud, subornation, and perjury, and would be superfluous and impertinent. would not only encourage negligence, but would lead to vexatious uncertainty and delay in litigation.
Though a decree may be set aside for fraud in obtaining it, the proper proceeding in such a case is, not by a Bill of Review, but
As to the discovery of new "matter," or of
written evidence, the law is also prudently | Respass vs. McClanahan, and Brewer vs. Bowstringent in requiring that such matter or evi-man, Supra. Whilst, therefore, we doubt whedence shall clearly make the case conclusive ther, on well established principle or policy, in favor of the party seeking to use it; and, even a conviction of purjury is, per se suffimoreover, that the Court shall be well satis- cient cause for a new trial or review, we cannot fied that the non-discovery of it opportunely doubt that imputed perjury without conviction was not the result of a neglect of proper in- is not sufficient in any case. quiry or reasonable diligence. Young vs. Keighly, 16th Ve. p. 352; 2 & 3 Johnson, Supra; Findly vs. Nancy, Supra, and some of the other cases cited.
Simply obtaining a decree on a groundless claim and on false allegations, and even false proof by a party knowing that his claim is unjust and that his allegation and proof are untrue, has never been adjudged to be a fraud on the other party, for which he could be relieved from the decree by a Bill of Review, or an original bill impeaching it for fraud. Bell vs. Tucker, 4 B. Mon., 652; Brunk vs, Means, 11th Ib., 219..
Nor will a review or new trial be granted for the purpose of impeaching a witness. Barret vs. Belshe, 4 Bibb, 349; Bun vs. Hoyt, 3 Johnson, 255; Duryee vs. Dennison, 5th, Ib., 250; Huish vs. Sheldon, Sayre, 27; Ford vs. Tilly, 2 Salk. 653; Turner vs. Peart, 1 Term R. 717; White vs. Fussel, 1 Vessey & Beame, 151. If procuring a decree by false allegatians, We respectfully submit the question, whe-known by the party making them to be untrue, ther the principles recognised and the rules and also availing himself of false testimony, established by the foregoing citations, and knowing that it was not true, be not, in judgmany other concurrent authorities, do not ment of law, such a fraud on the other party clearly and conclusively sustain the decree as to subject the decree to nullification or even dismissing Southard's Bill of Review, and review, why should the fact that the same parwhich he now seeks to reverse? We suggest ty, who knowingly alleged the falsehood, inin limine that the bill should not be construed duced the false witness to prove it, make a case as intending to impeach the original decree as of remediable fraud? having been obtained by fraud. The only distinct allegation in it on that subject is, that Stewart (one of Russell's attornies) fraudulently bribed Dr. Wood to give his deposition. There is no allegation that Wood's testimony was false, or that, without his testimony, Russell would not have succeeded in this Court. Nor does the Bill anywhere intimate what portion of Wood's evidence was false, or in what respect. And, could the bill be understood as sufficiently impeaching the decree for fraud in obtaining it, an original bill, and not a Bill of Review, was the proper remedy. If, therefore, it be Southard's purpose both to impeach the decree for fraud, and also, on the discovery of new testimony, to open it for review, we submit the question whether those incongruous objects can be united availably in a Bill of Review.
But, if, in all this, we are mistaken, we insist, as already suggested, that there is, in this case, neither proof nor allegation that Dr. Wood's testimony was either totally or partially false; although Southard, as proved by the depositions of Jos. C. Baird, (p. 168.) and of R. F. Baird, (p. 156-7,) and of E. Clark (p. 145-6,) and of Deering, (p 155-6,) and of W. J. Clarke, (p. 259-60-61,) made elaborate and sinister efforts to seduce Wood, and fraudulently extract from him something inconsistent with the truth of his deposition, his failure was so signal as to reflect corroborative credit on Wood's testimony. In the original case, Southard made a desperate effort to impeach Wood's testimony. In that he failed. This Court, in its opinion, said that he should be deemed credible, and moreover said that his statements were intrinsically probable, and were also corroborated by other facts in the record. The assault now made upon him, and on the attorney of Russell, is but a renewed effort to impeach testimony that was accredited and considered by this Court in its original decision.
Bat we cannot admit that either the allegation of false swearing or of the perjury of a witness is ground for a bill impeaching a judgment or decree for fraud: nor have we seen a case in which it was ever adjudged that the subornation of false testimony by the successful party was such fraud in the judgment Could this forlorn hope succeed, the only or decree as would lay the foundation for an effect of the success would be to deprive Rusoriginal bill for setting it aside. Although it sell of Wood's testimony. The setting aside might be gravely questioned on principle, yet of the decree would not follow as a necessary it it has been said that, while a Bill of Review or even a probable consequence. If there be or for a new trial will not be maintained on an enough still remaining to sustain that decree, allegation that the decree or judgment was ob- it will stand. And that there will be enough, tained by false swearing of a material witness, we feel perfectly satisfied. The gross inadeyet a subsequent conviction of the witness for quacy of consideration-the defeasance and the imputed perjury may be ground for a re- its accompanying circumstances the peculiar view or new trial. But whenever alleged and extraordinary means employed to disguise perjury is the ground for relief, legal con- the true character of the contract-the condiviction and conclusive proof of it by the tion and objects of Russell-the character, record are, at the same time required as in- business and conduct of the Southards-the dispensable. And this is dictated by the same allegations, evasions, inconsistencies, and policy which forbids new trials or reviews for falsehoods of the answer of D. R. Southardimpeaching witnesses by other witnesses-Jonhson's testimony, proving, as this Court
said, a mortgage-these and other considera- Wood nothing, Stewart's note to him, even if
into some purchased or inadvertent declaration or admission inconsistent with it, he has adhered to and reiterated the truth of it at all times and under all circumstances. 5. That, without Wood's testimony, the decree was proper, and would have been just what it is. 6. That the object of the Bill of Review is to impeach Wood's credibility, which cannot. now be allowed, and if allowable, has been entirely frustrated, and would be unavailing to Southard had he succeeded in his purpose.
"The credit of witnesses is not to be impeached after hearing and decree. Such applications for an examination to the credit of a witness are always regarded with great jealousy, and they are to be made before the hearing." (White vs. Fussell, 1 V. & B., 151.) There would be no end of suits if the indul gence asked for in this case were permitted." Livingston vs. Hubbs, 3 Johnson's Cham
The other grounds relied on for opening the decree are not entitled to, and therefore shall not receive, as much consideration as that of the alleged bribery of Wood. But each of them will be briefly noticed.
Under this enactment, had the contract be-witnesses to prove a fact which had before tween Russell and Stewart been prohibited been in issue; although there are many where by it, Southard might have pleaded the cham-Bills of Review have been sustained on the party in bar of Russell's bill. But the con-discovery of records and other writing relating tract was not prohibited by that statute. It to the title which was generally put in issue. was not a contract for "part or profit" of the The distinction is very material. Written eviland. Stewart had no lien on, nor any inter-dence cannot be easily corrupted-and if it est in, the land. His fee was to be paid in had been discovered before the former hearing, money, and for enforcing it, he must have the presumption is strong that it would have proceeded in personam against Russell. Half been produced to prevent further litigation and the value of the land was referred to only as a expense. New witnesses, it is granted, may measure of the contingent fee. Besides, as also be discovered without subornation, but the statute is severely penal, its operation they may easily be procured by it, and the should not, by construction, be extended be- danger of admitting them renders it highly yond the plain import of its words. And the impolitic." "If, then, whenever a new witness Appellate Court of Kentucky has invariably or witnesses can, honestly or by subornation, construed it as not embracing or infecting with be found whose testimony may probably illegality such a contract as that between Rus-change a decree in chancery or an award, a sell and Stewart. See Wilhite vs. Roberts, 4, Bill of Review is received, when will there Dana, 173; Blackerby vs. Holton, et al, 5 Ib., be an end of litigation! And particularly 523. will it not render our contests for land almost 2. The statute does not apply because South-literally endless? What stability or certainty ard's possession, as adjudged by this Court, can there be in the tenure of property? The was that of mortgagee, and was therefore not dangers and mischief to society are too great adverse. Castleman vs. Combs, et al T. Mon. to be endured." Respass vs. McClanahan, 376; Bailey vs. Dickens, 5 B. Mon.,179; Gre- &c., Hardin, Supra. The rule is well settled gory's heirs vs. Ford, et al. Ib., 472. that, to sustain a bill for a review or new trial 3. Had the contract been champertous, still at law, the evidence, if it applies to points equity would not, on Russell's application, dis- formerly in issue, must be of such a perma turb it after it had been executed-in pari de-nent nature and unerring character as to prelicto potier est conditio defendentis. Nor, on well ponderate greatly or have a decisive influence established principles, will a Bill of Review upon the evidence which is to be overturned be permitted for the purpose of enforcing a
forfeiture in favor of Southard.
by it." Finley vs. Nancy, Supra. "The nature of newly discovered evidence must be II. The alleged discovery of Hancock's testi- different from that of the mere accumulation mony, and of Oldham's as to Talbot's Alaba- of witnesses to a litigated "fact." Livingston ma property, and of a mistake, either by this vs. Hubbs, Supra. Such is the familiar doc Court or by the witness himself, as to Dr. trine to be found in the books sparsim, and Johnson's testimony, are all plainly insuffi- without authoritative deviation or question cient. These three distinct allegations are all since the days of Chancellor Bacon. It conin the same category. Each alike depends on cludes the case as to the discoveries we are the question whether a discovery, after decree, now considering. Besides they, when scrutiof new witnesses concerning matters previous-nised, amount to nothing which, if admitted, ly litigated and adjudged between the same could effect the decree.
parties is good ground for a Bill of Review; Hancock's memory is indistinct and uncer for what was the value of the land conveyed tain-see his affidavit and his two depositions by Russell to Southard, and whether this con--all vague and materially varying as to facts veyance was a conditional sale or mortgage, and dates. Moreover, he was not in Kentucky were the principal questions involved in the between the first of July, 1827, and the date of original suit, and the testimony of Hancock the conveyance from Russell to Southard. See and Oldham applies only to the first, and that the deposition of Woolley, p. 194, and of Gen. of Johnson is merely explanatory of his for- Jessup, p. 191. The same depositions prove mer deposition as to the last of these litigated that Russell was not in Kentucky during that matters. The foregoing citations conclusively year, until after the 8th of July. Consequentshow that no such cumulative evidence by ly, if Russell made an offer to sell to Hancock, witnesses is sufficient for upholding a Bill of it was since, and probably more than a year Review. "No witnesses which were or might since he conveyed to Southard; and, therehave been examined to any matter on the Bill fore, if he ever proposed such a sale, it was of of Review, unless it be to some matter happen- the equity of redemption, which was in fact ing subsequent, which was not before in re- worth more than $5,000. The fact that there cord or writing, not known before. Where is no proof of the same offer to Mrs. Preston, matter of fact was particularly in issue before as alleged, is confirmatory of this view. the former hearing, though you have no proof III. The fact proved by Oldham, that Talbot of that matter, upon that you shall never have sold his Huntsville property for $4,000, would a Bill of Review." Hindes' Pra., 50; 2 Free- have been entitled to no influence had it been man, 31; 1 Harrison's Ch'y, 141. "This proved before the decree. Talbot proved that Court, after the most careful research, cannot he considered Russell's land cheap at $10,000 find one case reported in which a Bill of Re--that, if he had had the money, he would have view has been allowed on the discovery of new given that much in cash for it, and that he