Rhodes v. Farmer. 17 H.

to this, W. and C. Fellows, in the name of McKewen, King, and Company, had recovered a judgment against James Strong and others, for $3,937.75, in the same court; and Strong, with the view of placing his property beyond the reach of the judgment, conveyed it to his wife. This conveyance, on an issue being made, under the practice of Mississippi, was set aside.

In the trial of the above issue, the complainant states it appeared in proof that William B. Farmer was the owner of the judgment against Strong and others, it having been assigned to him by W. and C. Fellows; and the complainant alleged that his judgment against Farmer, being unsatisfied, was a lien in equity upon the interest and claim of William B. Farmer, to the judgment assigned to him. And the complainant prayed that said judgment might be held by Farmer and W. and C. Fellows, subject to his judgments, and that they might be enjoined from paying it over, &c.

William B. Farmer, in his answer, admits that the judgments against him had been obtained, and that executions on them had been returned, nulla bona. He denies that the judgment against Strong was ever sold to him; but he states that, in 1848, being sued for a large debt, which he supposed to belong to Strong, and wishing to procure a set-off, he applied to W. and C. Fellows for [* 466] * the control of said judgment, offering to pay them three fourths of the amount that he might realize of the judg ment, should he be able to use it as a set-off, which was agreed to by them; and that he executed a penal bond to pay to the said W. and C. Fellows three fourths of the amount so recovered on their judg

ment.

Defendant also states that the complainant received from James E. Farmer, a co-defendant, a sum of money, on the receipt of which he released the judgments; and the defendant submits, whether such release does not exonerate the other defendants.

He also states that he had made a verbal assignment of the judg ment to William Cathron, as an attorney, for collection; and he submits whether the judgment can be made liable by the complainant to the satisfaction of his judgments. Other matters are set up in the answer, and he prays that the answer may be considered a crossbill, &c.

The condition of the penal bond, given to W. and C. Fellows, stated that they had transferred to Farmer the judgment against Strong et al. for the sum $3,937, subject to credits of about $763. Now, if the said obligors shall pay to W. and C. Fellows, or their assigns, in two equal instalments, on the 27th of January, 1849, and on the 27th of January, 1850, three fourths of the amount which may

be secured or realized by said Farmer out of said judgment, bearing interest at 6 per cent., deducting costs and attorney's fees which may be incurred, &c., then the obligation to be void.

In their answers, W. and C. Fellows deny that their co-defendant, William B. Farmer, is the owner of the whole of their judgment against Strong and others, but admit that he has an interest of one fourth part, &c.

During the pendency of this suit, the following receipt was given by John S. Topp, counsel for the complainant:

"June 9, 1852. Received of Messrs. Boston and Stearns, $1,052.59, being the one fourth part of the balance left in the marshal's hands, in the case of W. and C. Fellows v. Strong and Wife, after deducting $700 for fees, as provided for in the within agreement."

The district court, in its decree, says: "It appearing to the court that from the written admissions of Mr. Topp, solicitor for the complainant, since his filing the bill in this cause, recovered one fourth of the amount of the judgment of W. and C. Fellows v. James Strong and Mary A. Strong, his wife, which is enjoined in this cause, and that the complainant is entitled to no further relief in the premises, the injunction was dissolved, and the bill dismissed at the complainant's costs."

*

The judgment of W. and C. Fellows v. Strong, was as- [* 467 ] signed to Farmer without condition, and it is contended

that parol evidence was not admissible to alter the terms of the assignment.

There is a good deal of testimony on the contract of assignment. Some of the statements are somewhat conflicting, but they are reconcilable; and the result of the whole is, that the assignment was made of the judgment to enable Farmer to use it by way of set-off to a demand against him which he supposed belonged to Strong. But it was understood that Farmer should have one fourth of the amount recovered from Strong, after deducting the costs for his labor and trouble in collecting the money, and for the payment of the residue of the judgment he gave bond and security.

The assignment of the judgment was good in equity, and though absolute on its face, the bond given expressed the conditions, and showed that Farmer's interest in the judgment against Strong extended only to one fourth part of it, after deducting costs.

The bill of the complainant is in the nature of a bill for a specific execution of the assignment of the judgment, and in such a case parol evidence is admissible to rebut or explain in equity. But the penal bond given to W. and C. Fellows, by Farmer, with Brown as security, sufficiently explains the transaction.

Wickliffe v. Eve. 17 H.

The judgments obtained by the complainant against William B. Farmer and others, constituted no lien, equitable or legal, on the judgment against Strong, after it was assigned to Farmer; and no relief could be given to the complainant against the assigned judg ment, beyond the equitable interest of Farmer. He is represented to have been insolvent at the time the decree was entered. As one fourth of the judgment, after paying costs, was paid to the complainant before the decree, we think that the decree of the district court dismissing the bill at the complainant's costs, was correct.

The defendants were not liable to pay more than one fourth of the judgment; and as that amount was paid, about the time it was collected on the judgment against Strong, the defendants were not in default.

There is no evidence of a payment to the complainant by James E. Farmer, a co-defendant of William B. Farmer, on which a release of the judgments was executed by the complainant, as alleged in Farmer's answer. Nor is there any ground of defence, from the alleged verbal agreement with Cathron, who, as an attorney, was employed to collect the judgment against Strong.

The complainant, both in prosecuting the suit in the dis[* 468] trict* court, and also by his appeal to this court, sought to recover the whole amount of the judgment against Strong, or at least so much of it as would satisfy his two judgments against Farmer and others. But he can in this mode of proceeding reach only the equity of his judgment debtor in the assigned judgment; and having received that, he can claim nothing more. The decree of the district court is affirmed, at the costs of the complainant.

ROBERT WICKLIFFE, Administrator, with the Will annexed, of LUKE TIERNAN, deceased, Complainant and Appellant, v. BENJAMIN EVE, in his own Right, and as Administrator of JOSEPH EVE, deceased, RICHARDSON ADAMS, Executor of RANDOLPH ADAMS, deceased, ROBERT P. LETCHER, JAMES BALLINGER, and FRANKLIN BALLIN

GER.

17 H. 468.

A bill which states that the complainant had an interest in the subject-matter of a former suit in equity, applied to be admitted a party, was refused, and a decree made in fraud of his rights, and praying to have that decree set aside, &c., is an original bill, and not a bill of review, and the complainant must be competent to sue all the defendants.

APPEAL from the circuit court of the United States for the district of Kentucky. The case is stated in the opinion of the court.

Wickliffe v. Eve. 17 H.

Preston, for the appellant.

Blair, contrà.

* CATRON, J., delivered the opinion of the court.

[* 469 ]

In 1822. some of the defendants made two notes, one for $1,308.44, and one for $1,383.95, to Luke Tiernan and Sons; one payable the 1st of December of that year, and the other December 1, 1823.

In 1833, suits were brought by the plaintiff, as attorney of the payees, in the United States circuit court for the Kentucky district, and judgments were obtained by default.

No executions to enforce the judgments were put into the marshal's hands till December 15, 1845; and shortly after they were stayed by injunction, at the suit of some of the defendants against Charles Tiernan, the surviving partner, on the ground of payment, and the bar of the statute of Kentucky, for failing to sue out executions within twelve months after judgment; and on the 6th day of May, 1847, the injunction was, by decree of the United States circuit court, made perpetual.

Wickliffe had, in the mean time, brought suit against Luke Tiernan, claiming an indebtedness against him to the amount of about three thousand dollars, but never obtained judgment. He had attached the debt he alleged to be due by the defendants to Tiernan and Sons, and when the injunction suit was pending against the surviving partner, Wickliffe, having obtained letters of administration on the 13th of November, 1846, petitioned to be made a defendant, but the court overruled the motion.

On the 6th of December, 1847, he moved for leave to file a bill of review on the same ground, but the court also refused; and the present suit was brought to set aside the decree enjoining execution of the two judgments, on the ground that the decree in favor of Eve and others was obtained by fraud, through the connivance of Charles Tiernan, the defendant. The bill alleges, among other things, that Charles Tiernan was largely indebted to his father, and had assigned his interest in the judgments to him, and had become bankrupt. There is no averment in the bill that the partnership debts of Luke Tiernan and Sons had been paid; nor is there any averment that the complainant and defendants were citizens of different States.

Wickliffe attempted to have himself made a defendant to the suit of John G. Eve and others against Charles Tiernan, on the assumption that Luke Tiernan was indebted to him, Wickliffe, and he claimed a right to have part of the amount due to him from Luke

Pulliam v. Osborne. 17 H.

alleged were due to Luke Charles Tiernan, being the

Tiernan satisfied out of the moneys he Tiernan and Sons from Eve and others. surviving partner of the firm, had the sole right to defend the suit, as he represented the partnership property; in regard to which, the administrator of Luke Tiernan had a right to come into a court [470] of equity by bill, to coerce the surviving partner to settle, and pay the debts of the firm with the joint property; and after the creditors of the partnership were satisfied, then Luke Tiernan's administrator might have come in on a bill, properly framed, for one third of the surplus, or as much more as Luke Tiernan was in advance to the firm. This familiar doctrine is well stated by Mr. Justice Story, in his work on Partnership, §§ 97, 347.

But the bill before us claims no relief in this form; the complainant asks that the decree releasing Eve and others may be set aside as fraudulent, and the balance due on Eve's debt may be decreed to him, as administrator of Luke Tiernan; and in this capacity he seeks to retain for himself, and subject the property of the firm to pay the debts of an individual partner. Charles Tiernan is no party to this proceeding, and as he was not brought before the court, there could be no jurisdiction taken of the subject-matter; he being legal owner of the chose in action claimed, if the claim had any existence.

The bill was dismissed in the circuit court, because the complainant and the defendants were citizens of Kentucky, and therefore the court declared it had no jurisdiction, for want of proper parties. To obviate this objection, it is insisted here, on the part of the appellant, that this is a bill of review of the proceeding in the cause of John G. Eve and others, against Charles Tiernan. The appellant having been refused the privilege to file a bill of review, he then filed this original bill, impeaching the decree for fraud; and to this bill none but citizens of Kentucky were parties.

It is manifestly an original bill, within the description given by Mr. Justice Story's Eq. Plead. § 404, and being so, the circuit court had no jurisdiction of the parties.

It is ordered that the decree, dismissing the bill, be affirmed.

ZACHARY PULLIAM, Executor of AMOS ALBRITTON, Plaintiff in Error, v. ALEXANDER OSBORNE, Administrator of SAMUEL WOODWARD.

17 H. 471.

Where coördinate liens are obtained by one judgment in a State, and another in a United States court, the seizure by a sheriff, under an execution on the state judgment, gave priority to the lien of that judgment.

ERROR to the district court of the United States for the middle district of Alabama. The case is stated in the opinion of the court.