Thompson v. M. & M. Bank of Wheeling , 3 W. Va. 651 ( 1869 )

Berkshire, J.

The material allegations in the complainant’s bill, upon which he founds his claims to relief are, that he paid the 500 dollars to the bank at Wheeling on the original note for 1022 dollars and 73 cents, made by Hiram Haymond to William Hood, and endorsed by Hood, Cona-way, and the appellant, to and discounted by said bank. That he made his own note for 571 dollars and 99 cents, with Thomas G-. Watson and Alpheus Hoult as his securities, to the bank, as collateral security only for the faithful collection by him, as counsel for the bank,, of the bill or draft for 543 dollars and 67 cents, drawn and endorsed by the same parties to the original note, for the residue of said note, after applying the 500 dollars, paid as alleged, by the appellant, and that for this purpose only, the bill or draft was delivered to him by the bank and judgment obtained against all the parties to it, for the benefit of said bank, which judgment he claims is still unpaid, and was a subsisting lien on the real estate of Iiiram Haymond, and ought to be paid out of the proceeds of the sale thereof, now in the hands, as he alleges, of the appellee James 0. Watson.

These allegations are expressly denied by the appellees in their respective answers, and it therefore devolves on the appellant to sustain them by adequate proof. This he has not only failed to do, but they are explicitly disproved, and the answer of the appellee, Watson, in this respect, fully sustained by the evidence taken in the cause.

It appears that shortly after the appellant gave his own note to the bank for the amount of the bill or draft, he took from Hiram Haymond, a certain writing, drawn by the appellant himself, for, as therein alleged, his own protection and indemnity. This paper, called paper “M” in the record, distinctly recites that Jonathan II. Haymond, (for whose accommodation alone the original note was made and discounted), paid the 500 dollars to the bank on the original note, and that the appellant had paid off the bill or draft given for the residue of said note, and was then the holder of same. It also satisfactorily appears from the testimony on the record, that Jonathan II. Haymond, for the purpose of indemnifying the appellant on account of his liability as endorser on the original note and bill or draft, transferred and delivered to him certain obligations on John C. Galla-hue and others, sufficient to cover his said liabilities, and that the appellant actually collected the money on these ob"ligations (except a small amount which was afterwards collected) before he made and delivered his own note to the bank, for the amount of the said bill or draft.

And the recital in paper “M,” as to the actual payment of the bill or draft to the bank by the appellant, is¿ I think, fully corroborated by the testimony of Robert Crangle, then president of 'said bank. It is insisted however, that inasmuch as the judgment on the bill or draft was obtained without objection or defence, when the defendants had it in their power to defend themselves at law, by pleading and proving the payment so made to the bank by the appellant, the judgment constituted a valid and subsisting lien against the real estate of Hiram Haymond, and the proceeds thereof in the hands of the appellee Watson, and that the parties to the judgment are thereby precluded from making further resistance to its collection, or asking any relief against it in a court of equity. If this question was properly before this court, I think the suggestion might be sufficiently answered by replying that all the appellees who are parties to the bill or draft, aver in their answers that, at the time this judgment was obtained, they had no notice or knowledge that the bill or draft upon which it was founded, had in fact been paid off to the bank by the appellant, and that knowing they were each and all liable to the bank, they could make no defence against it, and their belief that the judgment would be paid by the appellant, who would not, as they believed, allow them to be put to inconvenience or trouble concerning it. But the question of enjoining or enforcing the collection of this judgment is not, as I conceive, now before us.

The appellant does not ask that the collection of this judgment be enjoined; but that Watson be enjoined from collecting the judgment against him and Hoult, founded on his own note delivered to the bank in payment of the bill or draft, — for the reason, that the amount of this judgment ought of right to be satisfied out of the estate of Hiram Haymond, and that it would be inequitable and oppressive to allow it to be collected off of him.

And it is further claimed, that under the state of facts disclosed in the record, a court of equity has no discretion to withhold its aid in granting the appellant relief in the premises. The proposition therefore is, in effect, advanced, that a court of conscience has, on the one hand, no power to withhold its aid from a party who seeks to perpetrate a fraud on others, and on the other hand, is obliged to compel another party to do that which would be equally unjust and inequitable. If this were so, it would be denying to a court of equity one of its most essential prerogatives, and to disregard and set at naught one of the most cherished and pervading maxims of equity, that he who comes into court and asks equity, must himself be willing to do equity unto others.

I think the decree complained of is right, and ought to be affirmed, with costs and damages.

The President concurred.

Decree affirmed.