Armsworthy v. Cheshire, 17 N.C. 234, 2 Dev. Eq. 234 (1832)

Dec. 1832 · Supreme Court of North Carolina

17 N.C. 234, 2 Dev. Eq. 234

John Armsworthy et al. v. Aquilla Cheshire.

A defendant at law lias no relief in equity against a void judgment; as where no sci. fa. was served on the heir, and the creditor obtained a judgment and purchased his land, the judgment being void, and the re, medy at law complete, no relief can be had in equity.

The plaintiffs alleged that they were the heirs of one John Jlrmsworthy, deceased ; that the defendant had recovered a judgment against bis executor, in which the plea of fulla administered was found for the defendant; 1 J , . , that by a subsequent agreement between him and the executor, he had agreed to receive an assignment of a debt duo the testator in South-Carolina, in satisfaction of his judgment j that he had, notwithstanding this agreement, caused writs of scire facias to be issued against them, and had, without their knowledge, obtained a judgment, issued execution and bought the land which descended to them at an undervalue, and had taken a deed therefor from the sheriff. The bill prayed a re-conveyance and general relief.

An assignment by an executor, of a bond due his testator to a creditor who has establish* ed his debt, and has a set» fa. a-watded against the heir, may be pleaded by the latter as an accord and satisfaction.

The defendant in his answer admitted that he was to take an assignment of the South-Carolina debt, but averred, that it v/as collateral to his judgment, satisfaction of which ivas only to be entered in case of his collecting that debt. He stated, that he had made efforts to collect it, but having failed, lie had issued writs of scirefadus, which were served on the plaintiffs, and judgment regularly entered.

. The plaintiffs filed a replication to the answer, and took proofs as to the agreement to take the debt due the testator in South-Carolina as a satisfaction, but a statement of them is unnecessary.

No counsel appeared for the plaintiffs.

Nash and Winston, for the defendant.

Daniei, Judge,

after stating the pleading as above set forth, proceeded: If the scire Judas against the plaintiffs never was served, the judgment entered on the same, at the return thereof was void, and they had complete relief in a’courtof law, and have no right to come into this court for redress. Whether the writ was, or was not served on the plaintiffs, does not appear; no copy of the record of that suit being filed.

As to the next point in the case, viz: that the defendant agreed to take the South-Carolina claim as a satisfaction of his judgment in the first place, that it does not appear to the court, such an agreement ever was made j and in the second place, if the plaintiffs were able, to establish it, they, instead of coming into this court, should havc pleaded the same to the scire facias. They could have defended themselves at law. under the plea of accord and satisfaction, and if the issue had been found for them, the defendant never could hav-e had judgment against the lands. Equity does not relieve when a party neglects a proper defence at law, (1 Mad. c. 77, Ware v. Haywood, 14 Ves. 28.) We think that the bill, for these reasons, should be dismissed.

PER CuRIAM. — Bill. DISMISSED.