Bayerque v. Jackson Water Co.

McALLISTER, Circuit Judge.

This is a motion to set aside a decree made by consent of parties in this court, on the ground that the orders which preceded it and the decree itself, were taken in vacation, although bearing date in term-time. It is true that there was no judicial action by the court in relation to such orders, save the signature of the judge to the final decree, and the order confirming the sale. After the return of the judge from a temporary absence from the city, upon a presentation of the documents j on file in the case, the said decree, dated i as of the preceding term, was signed by him, ; and an order confirming the sale. To aseer-Í tain the condition of the case at that time, j it is necessary to fix a construction upon the ¡ written stipulation. It provides, that upon j its being filed certain proceedings should take j place. In strict conformity to this agreement, the complainant acted, he took the ■ bill pro confesso, and pursued all the other ! steps prescribed. But what is more impor-I tant than the conduct of complainant, is that j of the defendants. On this motion the following facts are established by affidavits, | and stand uncontroverted. That complainant, | after promptly taking all the steps prescribed ¡ by the stipulation, relying on said stipula-j tion, orders, and decree, paid to defendant, ; who received the same, the balance of the i sum stipulated to be paid in agreement, and ] entered by virtue thereof into and forming a ' part of the decree, the sum of 8117,509 34 . over and above the amount mentioned in the . mortgage. That said sum was paid imme-i diately after the entry of said decree, and : same was accepted by the defendant with ! full knowledge that said decree had been entered, and that the money so received by defendant was paid by complainant relying upon the said decree. That no portion of the moneys paid has been refunded. That defendant has become insolvent. That, although the time lias expired within which by the terms of the stipulation, the defendant has a right to redeem, the complainant is willing to convey to defendant all the property he (the complainant) holds under the master’s deed, on being reimbursed for the moneys advanced by him, on the faith of the stipulation and decree. Now, if it be assumed, that all the proceedings in this case were irregular and voidable, the utmost this court could do on a bill filed to set them aside, would be just what the complainant proffers to do. But defendant asks this •court, on a motion summarily to set aside the decree, and sale of the property, and leave it together with the purchase-money paid to the defendant in the possession of the latter. The court would be lending itself to the propagation of a gross fraud, did it do so.

Another fact is developed on this motion, which is uncontroverted. It appears, that one James Creighton, on 12 Sept., 1856, subsequent to the proceedings and sale in this ■case, obtained a judgment against the defendant for the sum of $39,000 in the district court for the fifth judicial district of this state. That the claim on which said judgment was recovered, was a claim assigned to said Creighton by one John C. Ham, who was father-in-law of said Creighton, and the president and one of the trustees of the said Jackson Water Company, and who, as such, signed the said stipulation upon which the said decree was entered. That a suit was commenced in said court in August, 1856, which was discontinued. That a second suit was commenced on the same demand, and summons served upon the said John C. Harn, president of said company, and no answer having been filed, judgment by default was taken. Various charges of fraud are made, growing out of this transaction, with which on the present motion this court has nothing to do; it can only look to the facts as alleged in the bill and set forth in the affidavits.

In view of these facts the inquiry is, whether this court has the power to set aside the decree of this court on summary motion; and if it has the power, is this a case which calls for its exercise? Now, there is no positive or actual fraud suggested in this case. There is nothing to indicate anything further than can be inferred of a constructive fraud derived from the fact that the proceeding did not receive judicial sanction. It is not pretended that the terms of the written stipulation were not in good faith carried out by the complainant. It is not denied that he paid all the money he was legally bound to do; that said payments were made by him relying on the stipulation and the decree; that defendant received the moneys with full knowledge of the transaction, and the reliance placed upon it by the complainant. In view of all these facts, it is insisted that this court upon this motion should set aside the decree, or so amend it as to render it inoperative for all the purposes for which it was agreed on by the parties to be rendered. The practical result of which is to leave the property, and the money which complainant 'has paid for it, in the hands of defendant. Such is not the mode in which a court of equity administers justice. Equity always sets aside a deed upon other grounds than positive fraud on the part of the holder of it upon terms, and requires a return of the purchase-money, or that the conveyance shall stand as security for its payment. This constitutes the essential difference between relief in equity and that afforded in a court of common law. The latter can hold no middle course. The entire claim of each party must be determined at law on the single point of the validity of the instrument; but it is the ordinary case in the former court that a deed or decree, not absolutely void, yet under the circumstances inequitable as between the parties, may be set aside on terms. Coiron v. Millaudon, 19 How. [60 U. S.] 113. In this case, so far as the facts appear on this motion, the court can see nothing but irregularity. If on that ground it shall be deemed good cause for setting aside the proceedings, it must be done on terms just to both parties. This can only be done on a bill filed bringing the whole case upon its merits before the court, when equal justice may be done between the parties.

The motion must be denied.