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querela, in a case of disputed facts; and in Brooks v. Hunt (17 John. Rep. 484), it was said not to be an uncommon thing to refuse the relief in a summary way, on motion, and to put the party to this writ.

Now it was settled at the common law, that if one man acknowledge a statute merchant or statute staple to another, who afterwards releases it, and the conuzor aliens his land to a stranger, the stranger may have audita querela against the conuzee after execution sued out, though not before. (17 Ed. 3. 27 b. cited 3 Viner Ab. 321, with other cases from the year books.) These authorities are recognized in Waddington v. Vredenbergh, (2 John Ca. 229.)

So a purchaser could have this writ to compel a judgment or statute creditor to comprise in his extent, every parcel of land bound by the judgment or statute, although in the hands of various feoffees or tenants. He was to make the debt out of the rents and profits, and the various holders under the conuzor or judgment debtor, were thus by the common law made to contribute proportionately to the payment (Brookes Ab. Tit. Audita Querela. Coke's Reports, 3, 14 b. Viner's Ab. vol. 3, p. 339, fol. 9. Ibid. 343, fol. 5. Ibid. 349 M. Pl. 1.)

The statute 16 and 17 Car. 2d. cap. 5, made perpetual by 22 and 23 Car. 2, cap. 2, recited this to be the rule of the law; and provided, that where a judgment, statute, or recognizance had been extended, it should not be avoided or delayed, because part of the lands extendible were omitted out of the extent; saving, however, to the party whose lands were extended, the right of contribution from those whose lands were omitted.

In Prynne v. Houghton, (2 Ventris 104) it was held, that the statute only applied, when the extent had been executed, and the tenant brought audita querela. But it did not apply before execution; and hence upon a scire facias to revive a judgment, one tenant could plead that others were not warned.

So in one of the cases cited in the abridgements before referred to, it was held that this writ did lie on behalf of an alienee of a conuzor in a statute staple, to compel the conuzee to extend lands still held by the conuzor, before his own could be resorted to. And this ancient authority is the foundation of the rule now settled, that a Court of Chancery will compel the sale of pre

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mises subject to an incumbrance, in the inverse order of alienation. (Clowes v. Dickenson, 5 John Ch. Rep. 239; Gouverneur v. Lynch, 2 Paige 300; Aichen v. Maclin, 1 Drury & Walsh, 621.)

Nothing can be more striking than these old authorities to show a preventive power in a court of law, through the medium of its own process, to avert the infliction of a wrong upon even third parties, by color of its own judgments, or execution under them, or under instruments, to enforce which process from the Court must be resorted to.

In Harrod v. Benton (8 Barn. Cres. 217) Lord Tenterden said, "I think the Court has a jurisdiction over a warrant of attorney, which it may exercise at the instance of any party who has an interest in supporting it, or setting it aside." The applicant was, it is true, an execution creditor.

In Martin v. Martin, (3 Barn. & Adol. 934) a landlord was allowed to impeach a judgment confessed by a mother-in-law to her son-in-law. There was misrepresentation and deceit on the part of the debtor and creditor, which induced the delay of a distress. TAUNTON, J., said, "I also doubted whether we could interfere at the instance of a third person, but I think in this case the Court may do so by virtue of its general jurisdiction over warrants of attorney, and because this is a fraudulent transaction. The landlord, by his lien, would have been quasi owner of the property, and in that respect he may be considered for the present purpose as representative of the debtor."

In Reed v. Bainbridge, (1 Southard's Rep. 35) it was expressly decided that such an application may be made on behalf of a bonâ fide purchaser from the judgment debtor.

In South Carolina there is a statute that confessions may be taken before a clerk, in a manner prescribed, and judgment entered thereupon. It is then provided that every person aggrieved by such confession, may file a suggestion, and impeach the judgment. In Sutton v. Pettus, (4 Richardson's Reports, 163) it was held, that a purchaser from the judgment debtor was within the act.

In both these cases, that of Howland v. Ralph, (3 John. Rep. 20) is referred to as an authority, that a purchaser could have this redress. McNee was, there, a purchaser from the defendant, the judgment debtor by deed in 1804. A judgment was dock

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eted in favor of the plaintiff in 1803. The motion was to set aside the execution, on the ground of the debt being paid, and that the judgment was collusively kept in force. The affidavits of the plaintiff met these charges fully, and insisted that the bond was still lawfully due. The Court disposed of a question of regularity against McNee, and then said, that if there was fraud, (and there was color for the suggestion on the affidavits) he was undoubtedly entitled to relief. But it could not interfere effectually upon the present motion. The sheriff had sold under the judgment, and an order staying the delivery of the deed had been made.

This was extended to the next term, "so as to give McNee an opportunity to apply in the meantime to the Court of Chancery for relief, or to put the question of fraud and collusion in a train for trial at law, by an issue in fact."

This case fully sustains the right of a purchaser to affirmative relief in some form, and indicates strongly that it can be had by an issue directed in the Court of Law.

Swan v. Saddlemire, (8 Wendell, 676,) determined that case will lie by a purchaser against the plaintiff and defendant in a judgment for fraudulently setting it up as unsatisfied, when it was paid, and causing an execution to be issued thereon against the land of the purchaser.

In Neusbaum v. Keim, (7 Abbott, 23 C. P. Gen. Term,) it was held that a judgment founded upon an insufficient statement, was void as to the debtor's grantees, although it might be valid as to the debtor himself. The case arose upon an action by the judg ment creditor, to set aside a conveyance of real estate as fraudulent, and the complaint was dismissed.

In Bonnell v. Henry, (13 Howard Pr. Rep. 142,) Mr. Justice HARRIS states, that he does not understand the right to have an illegal judgment removed, to be confined to a judgment creditor. Of course he was not intimating that other creditors possessed it.

It is true, that the same careful Judge held in Beekman v. Kirk, (15 Howard, 230,) that a voluntary assignee for creditors at large could not resort to such a motion. But there appears to me to be a marked and important distinction between such an assignee, and a purchaser for valuable consideration; and that the learned Judge would be wholly free from inconsistency if he

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granted the relief on behalf of the latter. Indeed, Chancellor Kent, in a case before cited, arising under the act of 1818, takes and acts expressly upon this distinction. (Seaving v. Brinkerhoff, 5 John. C. H. R. 329.)

It is urged that the grantee of a judgment debtor, can stand in no better position than his grantor; and hence, upon the concession that the debtor was bound by the judgment, the grantee cannot impeach it.

But in numerous instances a bona fide purchaser has a better standing, and is entitled to higher rights and immunities than his grantor, or volunteers under him possess.

Under the Statute of 27 Elizabeth, it is the English rule to this day, that a purchaser for valuable consideration, even with notice of a prior voluntary deed, acquires the better title, and can set it aside. (Cathcart v. Robinson, 5 Peters' U. S. Rep. 264; Newman v. Rusham, 9 Eng. L. & Eq. Rep. 410.) The rule as laid down by the Supreme Court of the United States is, that the voluntary conveyance is merely presumptively fraudulent, as to a subsequent purchaser without notice. The presumption there was not repelled.

Now under either rule, the grantor himself could not set aside the conveyance; neither could his heir or devisee. (Jackson v. Garnsey, 16 John. 189; Anderson v. Roberts, 18 Ibid, 515.)

So a grantee in a subsequent voluntary deed cannot avoid a prior voluntary grant, (Roberts on Fraudulent Con. p. 646;) and it is held in the Queen's Bench, that a purchaser from an heir or devisee of the grantor could not avoid the voluntary grant of the ancestor. (Newman v. Rusham, 17 Queen's B. Rep. 723.) Yet it is clear that a purchaser for value from a voluntary grantee becomes vested with a better title than his grantor, and renders the voluntary deed, in effect, a purchase. (Ibid.)

It is justly observed by Judge SUTHERLAND, that a voluntary conveyance is a deed without any valuable consideration; and the character of purchase or voluntary is determined by the fact whether anything valuable passed between the parties. (4 Wendell, 304.)

Again, a deed may be asserted as fraudulent in fact, by a bona fide purchaser, while it remains valid as to the grantor and his heirs. (Wadsworth v. Havens, 3 Wendell, 411.)

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And so, a purchaser for valuable consideration without notice, acquires a title, although he buy of one who obtained a conveyance by fraud, and had no title. (Jackson v. Walsh, 14 John. Rep. 407.)

These examples show how extensively the law protects and aids a bona fide purchaser, when his grantor would be left without redress.

It is true that in the vast majority of cases, such applications are made on behalf of judgment creditors. But many circumstances will account for the infrequency of a motion by a purchaser. He usually is apprised by his searches, of judgments and procures their removal, or regulates his purchase money accordingly, or if in possession, is content to wait and resist any action on the part of the judgment creditor.

It is an argument of no little weight against this application, that the invalidity of the judgment appears upon its face, and that the power of a Court of Equity cannot be invoked to remove or cancel an instrument so void, upon the ground of its being a cloud upon the title. (Craft v. Merrill, 14 N. Y. Rep. 456; Heywood v. The City of Buffalo, ibid, 542; Ward v. Dewey, 16 ibid, 520; Scott v. Onderdonk, 14 N. Y. Rep. 9.)

But, if this doctrine is applicable to motions to set aside judgments, under the common law power of a Court over its records, it would be in general as applicable when a prior judgment creditor moves, as in other cases. Particularly would it be so, when a purchaser, under a prior judgment, applies, who it has been held may do so. (1 Paige 506, before cited.)

I apprehend that an exception to this rule exists in the case of judgments, and upon the principle, that a Court possesses power and control over its own records, so that it may always remove and cancel them, when they are fraudulently obtained or supported, and when innocent parties are aggrieved by them, who have not become expressly, or by clear legal implication, bound by them. (20 John's Rep. 296; 2 John. Ch. Rep. 144; 12 Wendell, 222; 5 John. Ch. Rep. 324; 9 John. Rep. 80; 6 Halstead's Rep. 110; Reading v. Reading, 4 Zabriskie's Rep. 361.) When the facts are plainly made out, the Court decides at once; when they are doubtful and contested, an issue is directed. The 72d section of the Code, abolishing feigned issues, sanctions such a course in the form there prescribed.