
    [Lancaster,
    May 24, 1826.]
    KELLOGG, Assignee, &c. against KRAUSER.
    IN ERROR.
    In a feigned issue, to try whether a judgment which had been assigned to the plaintiffs, is a lien upon the lands of the defendant, declarations by the assignor, made before the assignment, that a few days after the entry of the judgment, and when its entry was unknown to the defendant, lie had paid to the assignor three hundred dollars, in consideration of which, the latter had agreed not to enter the judgment, may be given in evidence by the defendant.
    Though the opinion of a witness, as to the value of land, is not strictly a fact, yet he may be asked what was the value of certain mortgaged premises', in the possession of the defendant, at the time judgment was entered against him, on tho bond accompanying the mortgage.
    In a feigned issue to try the validity of a judgment assigned to the plaintiff, entered by warrant of attorney upon a bond, it is not error to charge the jury, that if the person, who at the time was the proprietor of the bond, after having entered judgment upon it, had agreed not to enter judgment, and declared to the obligor that no judgment had been entered, the effect of such agreement • and declaration would be, to render the judgment null and void, and that it would be a fraud to proceed on the judgment under such circumstances; provided the assignee had notice of such agreement before the assignment.
    But it is not necessary, in order to be affected by tffe agreement,, that the assignee should have notice on record, or even in writing. -
    Notice in any way is sufficient, provided it be full, and such as could leave the party in no "reasonable doubt.
    The Courts of Common Pleas have power to entertain a motion to strike off or open a judgment, or to order a feigned issue for the purpose of ascertaining necessary facts.
    It appeared by the record in this case, and the papers returned with it on a writ of error to the Court of Common Pleas of Berks county, that Samuel Krauser, the defendant below, and John Krauser, deceased; gave a bond with warrant of attorney, to confess judgment to Frederick Foering; in the sum of five thousand dollars, conditioned for the payment of two thousand five hundred dollars, with interest. Frederick Foering assigned this bond and warrant to Jacob K. Boyer, who assigned them to Rufus Kellogg, the plaintiff. Judgment was entered by virtue of the warrant of attorney, as of January Term, 1823, in the Court of Common Pleas of Berks county. A scire facias on this judgment was issued to Jlugnst, 1824. The court, upon affidavits laid before them on the part of the defendant, granted a rule to show cause why the original judgment should not be opened, and afterwards directed a feigned issue to ascertain whether this judgment was a lien on the real estate of Samuel Krauser, in the county of Berks. Accordingly, a declaration was filed, on a supposed wager .in the usual form, and the parties went to trial on the feigned issue..
    In the course of the trial, the defendant offered to prove, that a few'days after the judgment had been entered, but when neither Samuel nor John Krauser knew of its having been entered, the said Jacob K Boyer said to the said Samuel and John Krauser, 
      “You have paid me three hundred dollars, which we call blood money, so that 1 should not enter judgment on the bond, as long as the interest is paid.” The admission of this testimony was opposed by the counsel of the plaintiff, but the court overruled the objection, and an exception' was taken to their opinion.
    The defendant produced as a witness one William Witman, and proposed to ask him, “What was the value of the mortgaged premises in possession of the defendant, at the time the judgment was entered on the bond, to wit, on the 31st‘day of January, 1833?” The question was objected to by the plaintiff’s counsel, but the court permitted the witness to answer, it, and a bill of exceptions was tendered to their opinion.
    The court were afterwards requested to charge the jury upon the following points, viz:
    1. That a judgment entered in the Court of. Common Pleas of Berks county, becomes by the law of the land, from the time of such entry, a lien upon the defendant’s real estate in the county.
    
      Answer. This, as a general proposition,- is correct and true.
    3. That an agreement between the plaintiff and defendant in such judgment, made subsequently to the entry thereof, that the plaintiff would not enter such judgment, is an agreement impossible to be performed, and therefore void in jaw, in regard to the entry of such judgment and the lien thereof.
    
      Answer. If J. K. Boyer agreed not to enter the judgment, and declared to the defendant that no judgment had been entered, the legal effect of such agreement and declaration would be, to suspend the operation of the judgment, and render it a nullity as to the defendant. It would be a fraud in Boyer to proceed against the defendant on the judgment under such circumstances. Of the existence of such an agreement, the jury are to judge under the evidence.
    3. That such an agreement, if actually made, would give the party who paid money in consideration thereof, a remedy to recover back the money from the party to whom it was paid, but could not in law invalidate the lien of the judgment, entered previously to the said agreement.
    
      Answer. The recovery back of the money paid to Mr. Boyer, on the agreement not to enter the judgment, would be a very imperfect and inadequate remedy for the. breach of the agreement; but such agreement would invalidate the judgment from the time it was made. . .
    4. That such an agreement, made upon a condition to be per-' formed by the defendant, gives the said defendant no legal or equitable title to relief against the lien, if the said condition be not performed, and ho proof of a tender by the defendant to perform the same, be shown at the time such relief is sought.
    
      Answer. It is for the jury to decide, whether the agreement not to enter judgment, was a conditional or an absolute agreement. If it-were unconditional, or if conditional, and the terms of it were performed by the defendant, it would be obligátory, and.the defendant would be entitled to relief. But if the agreement were conditional,, and the terms of it were not complied with, or offered to be complied with by the defendant, he is not entitled to the relief now sought for.
    51.- No such agreement, if actually made between the defendant and Jacob K. Boyer, the assignor of the plaintiff, but not recorded and not reduced to writing; can in law affect- the plaintiff, unless notice of the terms of that agreement was given to him.
    
      Jlnswer. The plaintiff, Rufus Kellogg. ought not to be affected by the agreement, unless he had notice of it; but it is not necessary that such notice should have been recorded or reduced to writing. If Rufus Kellogg had notice in any way before .the assignment to him, he ought to be affected by it.
    
      Leavenworth, Hayes, and Smith, for the plaintiff in error.
    1. The declaration of Boyer was not competent evidence, because it related to an agreement subsequent to the- entry of the judgment, and because it was not proved that Kellogg had notice of the agreement. An agreement not to enter a judgment which has been already entered, cannot by any possibility be carried into effect, and therefore is void. The party injured may recover "back the money paid on a void consideration, but the validity of the judgment cannot be affected. It is valid until reversed. 1 Salk. 400. 3 Salk. 214. 5 Com. Big. Pleader, 2, 9. Lewis v. Smith, 2 Serg. & Rawle, 142.
    
    
      2. The answer which the court below permitted the witness to give to the question, “What was the value of the mortgaged premises at the time the judgment was entered?” was irrelevant to the issue, and therefore inadmissible. It tended to prejudice the jury against the plaintiff, by inducing them to think that the plaintifíj who purchased the mortgaged premises, had got the value of his debt. It was, at best, but an abstract opinion, and not a fact, and therefore not evidence. 1 Phill. Ev. 126. 1 Serg. & Rawle, 298. Forbes v. Caruthers, 3 Yeates, 527.
    3. The court erred in saying, that if Boyer agreed not to enter judgment on the bond, it would be a fraud in. him to proceed upon the judgment, which by the agreement was a nullity. If the condition of an obligation be, to do a thing impossible, the obligation is single. 1 Powelon Cont. 159, 161.
    4. The court did not distinctly answer the fifth proposition submitted to them. The jury must have inferred, from the language of the court, that if the plaintiff had notice of the agreement,, in any manner, no matter how vague and loose, it was sufficient to bind him. This was clearly wrong. At least it may be said, that the charge on this point was obscure; and if the court give obscure instructions to the jury, it is erroneous. Fisher v. Larick, S Serg. & Rawle, 319. Besides, the defendant might have had redress, by pleading the agreement in bar to the scire facias, and therefore he was not entitled to avail himself of it in this issue. 6 Bac. Jib. 123. 1 Serg. & Rawle, 540. 5 Serg. & Rawle, 68.
    5. The Court of Common Pleas had no power either to entertain a. motion to set aside the original judgment, or to direct a feigned issue. Davis v. Barr, 9 Serg. & Rawle, 137.
    
      Biddle and Buchanan, for the defendant in error.
    1. In the order of things, the agreement should be proved first and the notice afterwards. Some evidence, however, of notice had been given before any evidence was offered of the agreement. After this evidence had been given, by permission of the court, ‘further evidence of notice Was given, previous to the delivery of the charge.
    2. (The court informed the counsel, that it was unnecessary to speak to the matter contained in the second bill of exceptions.),
    3. The third objection urged by the counsel for the plaintiff in error, goes to the charge of the court, delivered after evidence had been given, which does not now appear, and which it was the business of the party excepting, to place upon the record. The charge was, that if Boyer deceived the defendant as to the entry of the judgment, he should derive no advantage from it; and can there be a doubt that this charge was perfectly right? To leave the defendant to seek redress against Boyer, on the agreement, on the ground that the performance of the agreement on his part was impossible, would be a disgrace to the administration of justice. Chancery would interpose, and even a court of law would interfere in a summary way to give relief. In a clear case, a court of law will order a perpetual stay of execution, or .will stay the execution until the defendant has time to go into chancery. 15 Johns. 396. 16 Johns. 4.
    4. The court was requested to charge, that notice of the terms of the agreement should have been given to the plaintiff; and the charge was, that notice of the agreement should have been given. Surely there is no substantial difference between what was required by the counsel, and the answer given by the court. The plaintiff could not have known the agreement, without a knowledge of its terms. The judge said, that notice in any way was sufficient; that is, whether recorded, or by writing not recorded, or simply by parol; but there is nothing in his language to authorize an inference that he considered any' vague indefinite notice binding upon the plaintiff. It does not appear on the record, that the plaintiff requested this charge to be filed; and whether, in such a case, it is the subject of a writ of error, is a point of considerable importance.
    5. That-the court below had no power to entertain a motion to open a judgment, or to direct an issue, is novel and alarming doctrine. It is sufficient, that both parties joined in framing this issue, and’therefore neither can object to it. Rut that the court have the power to direct an issue, in order to come at the truth of a matter* through the medium of a jury, the only proper tribunal for the trial of facts, is too plain to admit of argument. Such issues are frequently ordered, and to say that the courts have no-power t© direct them, is to give the greatest encouragement to fraud, by taking away the power to restrain it.
   The opinion of the court was delivered by

Tilghman, C. J.

Several bills of exception were taken by the counsel for the plaintiff, in the course of the trial’ of this cause, which we are now to consider.

1. The court admitted evidence, on behalf of the defendant, of Boyer's confession before he assigned to Kellogg, that a few days after the entry of the judgment, and when its entry was unknown to the-defendant, he paid to the said Boyer three hundred dollars, in consideration whereof Boyer agreed not to enter judgment on the bond, as long as the interest was regularly paid. The main argument urged by the plaintiff’s counsel, against this evidence, is, that the agreement was impossible to be performed, because the judgment had been álready entered, and therefore the defendant should be left to his action against Boyer on the agreement. But this might be a very inadequate remedy, especially if Boyer, as alleged by the defendant, was and is in very doubtful circumstances. The three hundred dollars paid by the defendant, were, it is supposed, over and above the two thousand five hundred dollars, the principal of the bond, and were what Boyer called blooa money. It was a gross fraud to take this money from the defendant, under an agreement not to enter judgment, when judgment had been previously entered. And the Court of Common Pleas would have been justified in ordering the judgment to be erased from their record, on clear proof of the fact. But they did not choose to decide the fact themselves, and therefore directed an issue. . Another reason urged by the plaintiff against the evidence is, that the defendant might have .pleaded the agreement with Boyer, in bar of the scire facias. But this is by no means certain, and besides the Court of Common Pleas may, in their discretion, interfere in a summary way,, and order an issue, even though the defendant might possibly have obtained redress in another manner. A court of chancery, on.proof of the fraud practised by Boyer on the defendant, might have enjoined him against proceeding on the judgment, and the Court of Common Pleas, having ascertained the fact, may give relief in some manner equivalent to an injunction. I am of opinion, therefore, that there was no error in admitting the evidence.

2. The second bill of exceptions, was, to the court’s permitting the defendant to ask William Witman, one of his witnesses, and in permitting the witness to answer, the following question:— “What was the value of the mortgaged premises, in the possession of the defendant at the time that judgment was entered on the bond?’5 It seems that the defendant had given a mortgage on real property as a security for the payment of his bond, which property had been' sold, and the proceeds applied, as far as they would go, to the payment of the bond; but they were insufficient to discharge the whole. The principal reason assigned by the plaintiff against this evidence, was, that an opinion of the value of land is not evidence, because it is not a fact. It is certain that such opinions are every day received as evidence, although it is true that an opinion is not strictly a fact; and it is difficult to conceive how the value of land can be proved without them. The witness may indeed prove the prices at which other lands in the neighbourhood were sold; but that would not ascertain the value of the land in question, without a comparison between it and the land which was sold, as to quality; and quality is very much matter of opinion. It is 4 kind of evidence so commonly admitted without dispute or objection, that I have no doubt of its legality.

3. The third exception was, to the charge of the'court, (in answer to the second proposition of the plaintiff’s counsel,) “ that if Boyer agreed not to enter judgment, and declared to the defendant that no judgment had been entered, the effect of such agreement and declaration would be to render the judgment null and void; and it would be a fraud to proceed on the judgment under such circumstances.”

That it would be a fraud to proceed on the judgment under such •circumstances, cannot be doubted. And as to the court’s saying, that the judgment was rendered null and void by the agreement, the objection seems to be a dispute about words rather than substance. In strict propriety of speech, the judgment was not rendered null, because it required the judgment of the court to avoid a judgment regularly entered, as this was. But the agreement afforded ground for the court’s ordering the judgment to be stricken out, which would amount to the same thing. The dispute concerning the lien of this judgment is between the obligor, against whom judgment was entered, and the plaintiff Kellogg, who was an assignee loith notice. At least, so the plaintiff alleged, and whether he had notice or not was submitted to the jury, as appears in another part of the case. I take the object of this feigned issue to have been, to ascertain facts from which the Court of Common Pleas might be enabled to decide whether it was proper to strike out the judgment or not. I do not think, therefore, that there was any error, in this part of the charge.

4. I say nothing as to the fourth error, because it depends on the principle decided in the first.

5. The fifth exception is to the following part of the charge of the court (in answer to the plaintiff’s fifth proposition.) “The plaintiff, Rufus Kellogg, ought not to be affected by the agreement, unless he had notice of it. But it is not necessary that such notice should have been recorded, or reduced to writing. If he had notice, in any way, before the assignment, he ought to be affected by it.” It is not contended that the notice must be recorded, or even reduced to writing. Thé objection is to the words, “if he had notice in any way,” which, in the opinion of the plaintiff’s counsel, may be extended to any kind of loose, vagué, hearsay, imperfect information. If I could agree to that construction of the charge, I should say that it was clearly erroneous. The notice ought to be full, and such as could leave the party in no reasonable doubt. But when-the judge told the jury that Kellogg could not be affected unless he had notice of the agreement, it ought to be understood, notice of the whole agreement. To give the words a more restrained construction, would be criticising beyond the bounds of candour. And when the judge added, that notice, in any way, would be sufficient, I should suppose that he meant, notice by parol — notice neither placed upon record, nor even reduced to writing. Thus understood, the charge was correct.

7. and 8. The seventh and eighth exceptions are, that the court, erred, in entertaining the motion of the defendant below, to open the original judgment; and that they erred in directing a feigned issue, to ascertain whether the said judgment was a lien or not upon the defendant’s real estate in Berks county.

I must premise, that the object of these exceptions is not properly before this court. What we have to do is to decide, whether there was error in any thing that occurred on the trial of the feigned issue. That is, in form, a complete action, unconnected with the mqtion to open the judgment, with which we have no concern. But I hope it is not now a matter of doubt, whether a Court of Common Pleas can entertain a motion to strike out, or open a judgment entered on a warrant of attorney, or to order a feigned issue for the purpose of ascertaining necessary facts. If it has not this power, miserable indeed is our condition. It is the first time I have heard it questioned. It is, and has been, for the last half century, at least, an undisputed and constant practice. Great frauds are often committed under colour of these bonds and warrants, and necessity requires that they should be investigated in a summary-way. In some of the states they are absolutely prohibited, on experience of the abuse made of them. And they could be no where tolerated, without the exercise of a liberal discretion by the courts, in inquiring into them. Feigned issues'should be encouraged, because without them the court must draw the trial of all facts to itself. Suppose a case of complicated fraud, disclosed by affidavit. It may depend altogether on matter of fact. And is it not much more agreeable to the spirit of our laws and constitution, that this should be referred to a jury, than tried by the court? And even if fact were intermixed, with law, is there not a great advantage in a mode of trial, by which the opinion of the court, on points of law, can be reviewed by a superior tribunal ? If the eourt decides the whole., on motion, I know of no redress in case of error. But should there be a mistake in the admission, or rejection of evidence, or in charging the jury on a feigned issue, a writ of error lies.

I am of opinion, in this case, that the plaintiff in error has not supported any of his exceptions, and therefore the judgment should be affirmed. The record is to be remitted, and the Court of Common Pleas will then make such order as shall seem proper, on the motions which have been made, or may be made, touching the original judgment.

Judgment affirmed,  