Damon v. Bache ( 1867 )

The opinion of the court was delivered, April 1st 1867, by

Thompson, J.

— No wrong can be committed where one pursues his legal rights by lawful means. If he gets ahead of others in the race who had an equal chance with him, the law finds no fault, for one of its maxims is, “ vigilantibus non dormientibus legis subveniunt.”

All that can be justly said of the defendant Bache is that he was vigilant. His title protects the other defendants. Landis, under whom the plaintiffs claim, bought the land in question from Bache as agent of the owner in 1847, and(paid down $35, and agreed to pay the balance in four years, and never paid but $42, until the year 1860. At that time Bache had become the owner of the legal title, and on settling with Landis, $450 was found due, and it was then agreed that the latter should have the land if he paid for it in annual instalments, in four years, with interest. He failed to pay the instalments; and after two or more had fallen due, Bache brought ejectment to enforce payment. The writ was issued in May 1862, and on the 21st of July following, by stipulation filed, the defendant Landis confessed judgment to plaintiff for the land, to be released on payment of the purchase-money by] instalments, extending through a period of eighteen months. After the first instalment fell due, Bache issued a habere facias for the land, and it was delivered to him. In 1863 the land was seized and sold as the property of Landis, on a judgment obtained in 1860; and in 1864 the purchaser, claiming to have acquired Landis’s equity in the land under his contract, tendered the purchase-money due on his article, and brought this ejectment. He was too late in moving; the judgment in ejectment and execution had put an end to his equity. But it is claimed that there was fraud in obtaining the judgment; that Landis suggested to the plaintiff to proceed against him with some expectation of a favor to his father and mother, and that he did proceed, knowing that there were judgments against him. Rut what of this ? He had a right to repossess himself of the land for the condition broken in the judgment. He did nothing more.

It is not alleged he got judgment for money not due, nor that he issued execution before he had a right to do so. The fact that Landis told him of his condition, and that he acted on that hint, was all right. He was not bound to give the creditors notice, nor to wait to see whether or not they would take any steps to possess themselves of Landis’s equity. They should have-taken notice of his proceedings. There is no fraud where there is nothing wrong, and the learned judge very properly directed a verdict for the defendant on the evidence.

Judgment affirmed.