Preston v. Hill

Sanderson, J., delivered the opinion of the Court: This is an action to set aside a judgment in a former suit between the same parties, and also a stipulation between the attorneys of the respective parties, upon which tho judgment was rendered. The plaintiffs allege that the stipulation was made against their consent and protest, by their attorney, with the attorneys of the defendants, collusively and fraudulently, with intent to deprive them of their just and legal defenses to that action. The case was tried with a jury, and the finding upon the question of fraud and collusion was against the plaintiffs, who, having first moved for a new trial without success, have brought the case here.

As appears by the complaint, the judgment against which the plaintiffs seek relief was rendered in an action by the defendants to reform and foreclose a mortgage against the plaintiffs, in which the defendants claimed upon one theory the sum of about §18,000 in gold, and upon another theory the sum of about $16,700. The original loan was $11,025 in gold, and the remainder of the sums claimed were made up of advances and interest at the rate of three and two per cent, per month respectively. The grounds upon which a reformation of the mortgage was sought, as alleged by the [687]defendants (plaintiffs in that case), were as follows: At the time the loan was made, the only title which the plaintiffs had to the land which they proposed to mortgage was a certificate of purchase from the State, and a right to purchase from the United States. The understanding was, that the plaintiffs (defendants in that case) were, thereafter, to obtain a patent for the land, and, instead of a mortgage in form, should give a deed of bargain and sale, so as to pass the title of the plaintiffs, when it should be acquired. Instead of drawing a deed of bargain and sale, however, the attorney, who was employed for that purpose, by mistake, drew a quitclaim deed only, which would not pass an after acquired title.

The defenses of the plaintiffs (defendants in that case) were a denial that there was any agreement on their part to obtain a patent for the land, and pledge the title thereby acquired, or that there was any mistake whatever in the form of the deed; averments that there was no agreement to pay interest, in writing, and that, therefore, they could be charged interest only at the rate of ten per cent, per annum; that there was no agreement to pay in gold, and they, therefore, had a legal right to pay in legal tender notes; that there was no agreement to pledge any title, except such as they held at the time the loan was made, which title was well known to the' plaintiffs (defendants in this case); that there were no sums due, except the sum of $11,025, and interest thereon at the rate of ten per cent, per annum, payable in any kind of lawful money, subject, however, to certain counter claims as follows: That there was an agreement on the part of the plaintiffs (defendants in this case) to make certain repairs upon the mortgaged premises, which they failed to make, to the damage of the defendants (plaintiffs in this case) in the sum of $3,000 in gold coin; that there was due, also, the further sum of $750 in gold, for pasturage, and $500 more for lumber and other merchandize, and the further sum of $15,000 for the use and occupation, under an agreement to that effect, of a part of the mortgaged premises; and further, that there was at the time a growing crop upon the premises, which would net the plaintiffs (defendants in