The Opinion of the Court was delivered by
On the 27th day of July, 1841, Lawrence, the plaintiff in error, executed to Josiah Lane, defendant in error, a mortgage upon certain lands in Peoria county, conditioned for the payment of four hundred and fifty dollars in ninety days from the date of the same. On the 12th day of October, A. D. 1843, Lane filed his bill in Chancery in the Circuit Court of said county to foreclose this mortgage. The cause was continued from term to term to October, 1844, when Lawrence appeared and filed his answer, in which he admits the execution of the mortgage as charged in the bill. He then proceeds to state, that on the 15th of *358August, 1842, Lewis Tappan and others commenced an attachment "suit against one Alexander P. Lane, in the Circuit Court of said county of Peoria, which, on the day following, was served on him, (Lawrence,) as garnishee; that at the October term 1842, the plaintiffs in said attachment suit recovered a judgment against said Alexander P. Lane for 02151-42; that interrogatories were filed to be answered by Lawrence touching his indebtedness to the said Alexander P. Lane, to which he made the following answer: “The said John Lawrence says, that he had no lands, tenements, goods, chattels, effects or estate of any kind in his possession or under his control, at the time of the service of the garnishee process, or at any time since; nor does he know of any person who is indebted to him, the said Lane.
“ This respondent further says, that on or about the month of August, A. D. 1841, he purchased from Josiah Lane, the father of the said Alexander P. Lane, a tract of land for eight hundred dollars, and paid part down, and gave his promissory notes for four hundred and fifty dollars, one of which was for four hundred dollars, payable in three months from date, or in about that time, and the other for fifty dollars payable in good promissory notes on other persons; that the land purchased was purchased from Josiah Lane and the deed taken from him; but this respondent has no doubt, but that the said Alexander P. Lane was the real bona fide owner of said land, and that the sale was made by him and for his benefit, and that the notes taken in his father’s name were for his benefit, and that it was so done to keep his creditors from reaching it, and that the amount due upon the said notes is really and bona fide due to said Alexander P. Lane.
“ This respondent further shows to the Court, that the amount "due from this respondent to said Lane now amounts to the sum of $450-00, there having been payments made which leave that sum now due;” that upon the filing of this answer, the Court, on the 12th of October, 1842, entered a judgment against him as garnishee of said Alexander P. Lane for the amount of $450-00, being the sum then due upon the notes and mortgage executed by him to Josiah *359Lane aforesaid; that on the 17th of November, 1842, an execution was issued upon this judgment, which, on the same day, was levied upon the premises described in complainant’s mortgage, which, on the 22d of December, 1842, were sold to Elihu N Powell and William F. Bryan for $491-36; that on the 23d day of March, 1844, Powell and Bryan assigned their certificate of purchase to one David Shane, who, on the 23d day of September following, (the time of redemption having expired,) received from the sheriff of Peoria county a deed for the premises so sold as aforesaid; that the said sum of 450-00 was all that was due from him to said Alexander P. Lane, at the time of the rendition of the said judgment upon the said garnishee process; and that said judgment was for the same money, the collection of which was sought to be enforced by the bill to foreclose the mortgage before mentioned.
The cause was set down for hearing upon bill and answer, and at the-October term 1847, a decree was made, appointing a day for the payment of the money due upon the mortgage, which was ascertained by the Court to amount to the sum of $582-55; and that in default thereof, that the mortgaged premises be sold by the Master in Chancery, and the money arising therefrom, applied in payment of the sum due by the mortgage, and costs of the foreclosure, and the surplus, if any, retained by the Master, subject to the order of the Court; that the defendant should be foreclosed of his equity of redemption, and that he, and all persons claiming under him, should surrender the possession of the mortgaged premises and title papers to the purchasers.
The counsel for the plaintiff in error contended: 1st, that David Shane should have been made a party defendant to the complainant’s original bill, the answer of Lawrence disclosing, that he had an interest which might be affected by the decree; 2nd, that Lawrence, having been served with a garnishee process in the suit of Tappan v. Alexander P. Lane, and a judgment having been rendered against him for the amount due on the mortgage, the same is thereby satisfied; and that having once paid the money, or the same *360having been made out of the mortgaged premises, he can not be compelled to pay it again, and that the complainant in the Court below had no right to foreclose his said mortgage; and 3rd, that there was error in that part of the decree, which enjoins the surrender of the possession of the premises, as against Lawrence, and those claiming under him.
This is certainly an anomalous proceeding, and presents a question, which, at the first view, would appear somewhat embarrassing. While on the one hand it cannot be questioned, that where a party has paid money by compulsion, under the judgment and process of a Court of competent jurisdiction, he will not be compelled to pay the same a second time; yet, it is equally clear, that no Court of Law, even with the assent of a debtor, has authority or power to appropriate the private property of one to the payment of another’s debt. The answer of Lawrence in this case discloses these facts: that Josiah Lane had a mortgage against him for §450: that, on being served with a garnishee process in the suit of Tappan and others against Alexander P. Lane, he admits in answer to interrogatories, that he owes that amount upon the mortgage, and states, without offering any reason for his opinion, that he believes that Alexander P. Lane is the equitable owner of the sum of money secured thereby; and permits a judgment to pass against him for that amount, and the land which had been mortgaged is sold on execution, and the proceeds applied in part payment of Tappan & Co’s judgment against Alexander P. Lane; to all which proceedings, Josiah Lane is an entire stranger, having had no day in Court, and no opportunity to contest or assert his rights; and when he seeks to foreclose his mortgage, he is, for the first time, met with an objection, which, when rendered into plain English is, that by the judgment of a Court of Law, his money has been taken and applied to the use of another person, because the mortgagor, his creditor, entertained the belief that he, the mortgagee, was not the equitable owner of the mortgage. The Court is unanimously of opinion, that so far as the present defendant in error, Josiah Lane, is concerned, the pro*361ceedings in the attachment suit are wholly void; that the Court neither had jurisdiction over his person, nor his property. No suit or proceeding whatever had been instituted, or was pending against him. It was a matter in which, if he had had actual notice of it, he would have had no right to interfere, either by way of objection, interpleader, exception or appeal.
There is no principle of justice or law, which will thus deprive a man of his property without trial or notice. It is not to be presumed that the judgment upon the garnishee process, set out in the answer of the plaintiff here, was rendered with a full knowledge of the facts. No Court would render such a judgment, unless there was some misconception of the circumstances of the case.
We take the answer of the plaintiff to be true, and from that answer we can come to no other conclusion, than that there was collusion between Tappan & Co. and the plaintiff here, to devise some means to make the defendant’s money pay the debt of Alexander P. Lane. If Josiah Lane really was not, and Alexander P., in equity was the owner of this mortgage, it was not the place to contest or decide that question upon a garnishee process in an attachment suit between Tappan & Co. and Alexander P. Lane.
The cases referred to in support of the principle, that a person who has once been compelled to pay money, by the decree of a Court of competent jurisdiction, shall not be compelled to pay the same again, do not meet this question. In all those cases, the proceedings were against the party, whose interests were to be affected by the judgment or decree, and there was either actual or constructive notice given to the party, whose money or effects were to he appropriated, not in payment of another’s, but of his own debt. They were contests between creditors of the same debtor, in which the garnishees, who owed the debtor, or had effects of his in their hands, had, upon a proceeding directly against the debtor under a judgment of a Court of competent jurisdiction, been compelled to pay to one, and in which the Courts very properly determined, that such payment, or a *362judgment without payment, would bar any subsequent claim against him for the same demand. Thus, in the case of Holmes et al. v. Remsen et al., executors of Clason, 4 Johns. Ch. R. 460, one Mullet, who resided in England, became a bankrupt, and under the law of England, assigned his effects to commissioners. Clason, who resided in New York, was indebted to him at the time of his assignment. The agent of Clason, residing in London, had money belonging to Clason in his hands, which, by process from the Lord Mayor’s Court, was attached, and judgment entered against him, by which he was compelled to pay over the money to the assignees of Mullet. An attachment was issued in New York against the effects of Mullet, as an absent debtor, under the laws of that State, and the plaintiffs, being appointed trustees for the benefit of the creditors of Mullet, claimed of the executors of Clason, payment of the sum of money due from Clason to said Mullet. It was held, that Clason’s executors, having once been compelled, through their agent, by the judgment of a Court of competent jurisdiction, to pay the money, the plaintiff’s claim against them was barred.
The same principles and nothing farther, are repeated in 5 Johns. 101, 20 do. 229, in a note in 4 Cowen, 521, and 13 Mass. 153.
Unless there is something outside of this case, which does not appear by the bill or answer, it is not easy to perceive how the plaintiff here is injured by this decree. The mortgaged premises have already been sold, and, as he asserts, purchased by the assignors of Shane, who has a deed from the sheriff under the sale which vests all his equity of redemption in said Shane; and as the áecree only proceeds against the land, and those claiming under the mortgagor, to require them to surrender the possession, and does not in fact make him personally liable for the money due thereon, we cannot see from the record, that the decree can operate to his prejudice.
It is the common practice in the Courts of Chancery in this, and many other of the United States, upon the foreclosure of mortgages, to decree a surrender of the possession *363and title papers by the mortgagor, and those claiming under him. In this there was no error.
It is not necessary to decide whether David Shane, would, under other circumstances, have had such an interest in the suit, as would have made it necessary to have made him a party defendant to the bill of foreclosure. If he had such an interest, he acquired that interest pending the litigation between these parties, and it is unnecessary to refer to authorities to show, that a party thus situated is not entitled, unless, at least, he asserts his claim himself, to be made a defendant on the record.
The decree of the Circuit Court is affirmed with costs.
Decree affirmed.