
    *Richmond and Petersburg Railroad Company v. Shippen.
    January Term, 1856,
    Richmond.
    Absent, Clopton, J., who decided the cause in the court below.
    Case at Bar — Judgment Dy Consent. — In a controversy in a county court about the confirmation of a report of commissioners appointed to assess damages for land taken for the use of a railroad company, no witnesses were examined, and a judgmentwas entered by consent against the company, confirming the report, and for the amount of damages assessed by the commissioners, for the purpose of removing the cause to the circuit superior court of the county by appeal, the counsel for both parties being of opinion, that an appeal lay of right to the circuit court. No such right of appeal existed, and the circuit court dismissed the appeal.
    Upon an appeal from an order of the circuit court dissolving an injunction to the judgment of the county court. Held :
    1. Same — Same—Equitable Relief. — That, although the damages were obviously excessive, and neither party intended that the judgment of the county court should be final and conclusive, that a court of equity could afford no relief against the judgment.
    2. Judgments by Consent — Effect.—A judgment by consent must have the same force and effect as any other judgment, unless, upon principles of equity, some ground can be shown for relief.
    3. Judgments — Equitable Relief — Mutual Mistake of Law. — A court of equity will not relieve against a judgment a party, who was prevented from making his defence at law by a mistake of law. although it was a mutual mistake by both parties to the suit.
    On the motion of the Richmond and Petersburg- Railroad Company, the County Court of Chesterfield, on the 10th day of April, 1837, appointed five persons to ascertain the damages, which the proprietors of several tracts of land, on the line of that road, would sustain by the opening of the said road through their lands. The qom-missioners, so appointed, returned their report to court on the 11th of September, 1837, and reported the *damage to the land of one William Shippen to amount to the sum of $2,717 63, as follows:
    “Road runs through this tract 8,900 ft., per statement of engineer, and occupies 16^ acres, of which 7 1-6 acres are wood land, valued at $25 per acre, $ 179 16
    Ground for fence, &c., 2166-4840 acre, at 12 dollars, 5 16
    Eand occupied by fence, &c., on the cleared land and road, 12 3031-4840 acres, at $10, 126 26
    Extra width, per statement of engineer, 3 acres, from which take off, as already calculated for fence, turn-row, &c., 1-7 acre, leaves 2 6-7 acres, at $10, 28 57
    Cost of fencing allowed, 622 77
    A sum, the interest of which will keep the same in repair, 1,482 66
    Two gates, and to keep same in repair, 26 00
    Inconveniences of the road, 247 05
    $-2-,717 63”
    The company objected to these damages as excessive, and especially to the allowance for constructing and maintaining fencing.
    The proceedings were regularly continued in the county court until August, 1838, when an order was entered affirming the report of the commissioners, assessing the damages to Shippen, and a judgment was rendered against the company for the amount. And on the motion of the counsel for the company, the court certified ‘ ‘that the said report has been affirmed, without the examination of any testimony on either side, and upon inspection of the said report only.” At the same time, the plaintiffs prayed for an appeal to the circuit superior court, which was allowed.
    In October, 1839, a motion was made in the superior court on behalf of the appellee to dismiss the appeal, which was overruled.
    *The cause remained on the docket of that court until April, 1847, when, after argument, an order was entered dismissing the appeal as having been improvidently allowed, with costs against the appellant. On the hearing of the motion to dismiss the appeal, the appellant offered evidence to show, that the case in the court below never was in fact considered by that court, but that judgment had been entered in pursuance of an understanding between the counsel for both parties, with a view of removing the cause to the superior court, and thereby to obtain a more speedy and satisfactory trial; that the damages wefe grossly excessive; and that they had been assessed upon wrong principles; but the court, being of opinion that the evidence was inadmissible, excluded it, to which ruling of the court the appellant excepted.
    The company then filed their bill on the chancery side of the said Circuit Superior Court for the county of Chesterfield, exhibiting therewith a transcript of the record of the foregoing proceedings,, and setting forth, that the judgment had been entered in the county court by consent, merelj for the purpose of removing the cause to the superior court, the counsel for both parties supposing that an appeal lay of right, as in all road cases; that such was the general opinion and practice of the bar throughout the State at that time; that neither party intended that said judgment should be final; that after the same was entered, Shippen, by his counsel, had offered to compromise the case for a much less sum than that for which the judgment was entered; that it would be fraudulent in Shippen to avail himself of the judgment, which neither party ever intended should be enforced, and that the damages were grossly excessive and based upon wrong principles.
    The bill prayed that the execution of the judgment of the county court might be enjoined, that the damages actually occasioned to Shippen by the occupation of his land for the use of the company might be ascertained, and he be required to abate so much of the said judgment *as might exceed such actual damages, with a prayer for general relief.
    An injunction was granted. Shippen answered, denying the jurisdiction of the court, and averring that he knew nothing of any arrangement between his counsel (who was no longer alive) and the counsel for the company; that it was probable, that at the time the judgment was entered, both counsel thought, that from a decision of the county court there was an absolute right of appeal to the circuit superior court of the County: but he did not believe his counsel had ever agreed to surrender any legal objection to any of the proceedings in the case; that he had never at any time proposed any terms of compromise to the company, or authorized his counsel to do so; that the damages had been fairly assessed after actual inspection ,of the premises by competent persons, and were not excessive; that the company had held possession of his property for more than ten years, without paying him anything, and that the delays were vexatious. Evidence was taken on both sides as to the value'of the land taken, the necessity for fencing, and the inconveniences likely to result from the establishment of the road.
    As to the .alleged agreement or understanding under which the judgment was entered in the county court, the counsel for the.railroad company deposed:
    “At the August term, 1838, owing to the long delay which had occurred in bringing on the case of the defendant, to the inconvenience, trouble and expense of endeavoring to be ready at every term of the county •court, with little prospect of a hearing- at any term, on account of the press of other business,, and the number of like cases, it was agreed between this deponent, on behalf of the plaintiffs, as their counsel, and the late James W. Pegram, as counsel for the defendant, that this case should be removed to the superior court. At that time it was not doubted that either party, in case of an adverse decision by the county court, had an absolute right of appeal to the superior court, as in *ordinary road cases. Such was the invariable practice at that time, and long afterwards, but it was doubted by Mr. Pegram whether, as the law then was, the case could be regularly removed otherwise than by appeal; and as there could be no appeal except from a final judgment, and no judgment could be final except one in favor of the defendant, it was agreed that a judgment should be entered in favor of the defendant, and the case be removed by appeal. And to obviate any prejudice to the plaintiffs therefrom, it was further agreed that it should be certified that the judgment was so entered without the examination of any evidence on either side, and upon inspection of the report merely; all which was accordingly done, and done by consent of counsel on both sides.
    “After the appeal, perhaps also before, attempts were made by the parties, through their said counsel, to compromise their differences. The terms offered by Mr. Pegram I do not now recollect. His offers were made subject to the defendant’s future approval, and they proposed a sum far short of the assessment, but much larger than this respondent would allow. The subsequent delay of the case has arisen mainly from the fact that the defendant was left unrepresented, by the retirement of Mr. Pegram from the bar early in 1840.”
    At the hearing of the cause in November, 1849, the court decreed, that the injunction theretofore awarded be dissolved, and the bill dismissed, with costs against the complainant; from which decree the complainant appealed.
    Macfarland, for the appellant:
    The judgment in the county court was entered by consent, and the cause was removed to the circuit court for the purpose of having it decided there. That court refused to dismiss the appeal, and took jurisdiction, until the decision of the Court of Appeals in Hancock *v. R. & P. R. R. Co., 3 Grát. 328, determined, that it had not jurisdiction.
    A supersedeas was applied for and refused. Application was then made for an injunction to avoid the execution of a judgment, the benefit of which was iniquitously claimed by the appellee.
    The damages were grossly excessive, as appears from the face of the report, by a comparison of the value of the land per acre, with the aggregate amount of the damages given.
    A judgment obtained by fraud, will be relieved against in a court of equity. And although the judgment was in fact rendered by consent for a specific purpose, it is equally fraudulent to claim an advantage not intended by the parties, or in an event not contemplated by either of them.
    Morson, for the appellee:
    The judgment of the county court is right and proper upon the merits. The assessors were the best judges of the damage to the proprietor of the land. The only complaint of the company is that the damages allowed for fencing are excessive, and that they had proposed an adequate substitute for the fencing by means of cross cuts or deep pits across the track. The assessors rightly construed the law on the subject of fences, and were bound to find damages for fences, whatever substitute may have been devised by the company. Sess. Acts 183S-6, p. ISO, $ 30. Winchester and Potomac R. R. Co. v. Washington, 1 Rob. 77.
    And this right to damages for fencing extends to fences on both sides of the road.
    As to the appellee’s right to a vail himself of the judgment, Shippen says, that he was never a party to any arrangement by which he was to lose the full effect of his judgment, and no such arrangement was ever communicated to him by his counsel. His counsel moved to dismiss the appeal as early as 1839. Neither does *the testimony of the counsel for the appellant clearly shew such an arrangement. He merely says, that there was to be an appeal by consent to the circuit court. The appellant was not deprived of the benefit of that appeal by any act of Shippen, but the case was dismissed by the circuit court, because it had no jurisdiction.
    Joynes, on the same side:
    No enquiry into the merits of the case can be made here. The true question is, whether the circuit court had jurisdiction :
    The assessment was made and the land occupied in 1838, and for nineteen years, the appellee has been kept out of his property and out of his damages too. A court will not set aside an assessment as excessive, made bj fair and competent persons upon actual view and inspection, unless it was made upon some wrong principle.
    Shippen had the judgment of the commissioners. This was to have been confirmed, unless good cause should be shown against it. The matter remained open in the county court from September, 1837, until August, 1838. The parties could not obtain a hearing. A judgment was then rendered in the usual form, but neither party supposed the controversy was ended. There was mere acquiescence on the part of Shippen, in the order entering the judgment and the order allowing the appeal. No agreement between the parties is proved.
    This is shewn, by the motion of the counsel for the appellee, to dismiss the appeal the following year. Each counsel judged for himself of the effect of the orders entered. Each relied upon his own judgment and experience, and not upon any agreement. It afterwards turned out, that they were both mistaken as to the right to appeal. It is like the case of a party answering a bill in equity, without excepting to the jurisdiction of the court, and after-wards upon an appeal the bill is dismissed for want of jurisdiction. It cannot *be said that it was fraudulent in the defendant not to have excepted to the jurisdiction earlier. If the court will relieve in the case at bar, it is going but a step further to relieve a party against his own mistake of law. Even if this were the case of a positive agreement, instead of mere acquiescence, and there were a mutual mistake of law, equity cannot relieve. Hunt v. Rousmaniere, 1 Peters, 1.
    The error of the counsel was first adjudged in Hill v. Salem Turnpike Co., 1 Rob. 263, and not for the first time in Hancock v. R. & P. R. R. Co., 3 Grat. 328.
    Macfárland, in reply:
    There is a bad odor pervading the case. It is not denied, that one party has obtained an advantage which was not contemplated by either. Will the court now' permit an effect to be given to the judgment, which the parties did not intend? Wilt the court close the door to an enquiry, which the parties desired to facilitate, and to render speedy, fair and open? What was the agreement of the parties? It was, that the enquiry as to the damages should be made in the circuit court, which, contrary to the expectation of both parties, could not, for want of jurisdiction, entertain the enquiry. Neither party will be permitted to take advantage of this defect of jurisdiction, but a court of equity will give effect to the gist of the agreement between the parties. It was like an agreement to refer to an arbitrator who refused to arbitrate.
    Suppose parties intend a lease for five years, and employ an ignorant scrivener to draw a lease in writing, who prepared a deed of bargain and sale instead, which they execute, could not a court of equity relieve against it? Alexander & Co. v. Newton, 2 Grat. 266.
    In the case of Hunt v. Rousmaniere, the rights of third persons had intervened.
    Mr. Joynes, of counsel for the appellee, contended, that there was no agreement, but mere acquiescence, each party acting upon his own judgment. In this position, *he is not sustained by the proofs in the case. And moreover, it is obvious that the object sought to be attained, by the removal of the cause, was mutually advantageous. It is true, there is in the record an entry of a motion by counsel for Shippen to dismiss the case in 1839, but it is fair to presume that this was some other than he, who was partj- to the agreement in the court below.
    The next question is, whether injustice has been done? This enquiry is hardly proper here. The parties should first be restored to the position in which they were before the judgment was rendered.
    As to the delay, that cannot be imputed to the appellant, but must rather be attributed to the judicial system, or its administration.
    
      
      Judgments. — On matters pertaining to judgments, sée monographic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
    
   FIELD, P.

The judges being equally divided in opinion, the decree must be affirmed with costs, by operation of law.

Two of us, Judge Thomson and I, think the damages excessive, and that the appellant, having shown a sufficient excuse for not defending himself at law, should have been released from the payment of so much of the damages as were excessive, and that a jury should have been empaneled to try an issue to ascertain the true amount of damages, as of the 11th September, 1837, which, when ascertained, the appellant should have been required to pay with legal interest thereon from the date of the judgment of the county court. The judgment of the county court should have been held as a security for the paj'ment of those damages and interest, as was ruled in the case of Knifong v. Hendricks, 2 Grat. 212. On this point the other two judges concurred in opinion with us; but they thought, under the circumstances, no relief could be given.

This is a hard case on the appellant. Yet, as the controversy has been so long pending, if the damages, when ascertained by a jury, as above indicated, unless the amount should be greatly below what we suppose they *would be fixed at, should be made to carry interest from the date of the judgment of the county court, August 14, 1838, until paid, a period of about seventeen years and a half, the appellant’s success at this late day would have been an injury to“him, as the amount to be paid would exceed what will be required to satisfy the present judgment, including the costs of the litigation and the damages which accrued during the time the injunction was pending in the county court. Whilst, therefore, we would, have interposed and granted relief, yet that the court has not done so, should not be' regarded as a matter of regret either by the appellant or his counsel.

THOMPSON, J., concurred with EIEED, P.

GILMER, J.

This is a hard case on the-appellants, and one in which I feel inclined to afford them relief. Not only are the damages assessed by the valuers on the land of the appellee excessive, but, in addition to that, the appellants, by a misapprehension into which their counsel, in common with the counsel of the appellee, and of the profession generally, had fallen, have been deprived of an opportunity of obtaining relief against those damages— and there can hardly be two opinions with regard to the propriety, in a moral point of view, of the appellee availing himself of this advantage — but vre sit here not to try questions of mere ethics, or to enforce mere moral obligations; the case must be decided according to the principles of equity.

The counsel for the appellants invoke the aid of equity on the ground of fraud — ■ not fraud in the appellee, or in his counsel, in obtaining the judgment of the county court, or the appeal; for it is admitted that the judgment was entered and the appeal taken by consent of the counsel on both sides, and it is not pretended that the counsel for the appellants did any thing to induce the counsel for the appellee to permit the judgment to be entered, or to take the appeal, but the result of the appeal being different from what either of the parties anticipated, *it is argued tha't it is fraudulent in the appellee to avail himself of the judgment. Why was the result so different? Simply because the counsel on both sides were mistaken about the law. There is no evidence whatever to shew that the mistake of the appellant’s counsel was induced by any thing said or done by the counsel on the other side, and I cannot see how the fact that both counsel were mistaken in the law, can alter the case. If the appellant’s counsel had alone been mistaken, and had of his own mere motion permitted the judgment to be entered in the county court, no one would say that equity could afford any relief, and how can he place himself in any better condition by shewing that his opponent was also mistaken? Indeed, there would be stronger ground for alleging fraud if the fact had been the other way.

Adams, in his “Doctrine of Equity,” p. 383, after stating the grounds of equitable relief, says: “And still less can any equity arise if the facts were known at the time of the trial and the grievance complained of has been caused by mistake in pleading or other mismanagement, or by a supposed error in the judgment of the court,” and in a note at the next page (384) it is said that “any fact which clearly proves it to be against conscience to execute a judgment at law and of which the injured party could not have availed himself in a court of law; or of which he might have availed himseljf, but w,as prevented by fraud or accident, unmixed with any fault or negligence in himself or his agents, will authorize a court of equity to interfere by injunction, but not where there has been negligence on the part of the complainant in availing himself of a defence at law or other neglect. ’ ’ These principles have been again and again acted on in our Court of Appeals and rigidly adhered to. The cases are too numerous and familiar to require to be cited, and some of the latest have been very strong cases for relief, and yet it has been refused.

*But it was argued by the appellant’s counsel that the judgment of the county court was a judgment pro forma. It is true, that it appears from the record that no witnesses were examined, but it appears that the judgment was entered by-consent of the counsel on both sides, and the judgment must have the same force and effect as any other obtained in the ordinary way, unless upon the principles of equity some ground can be shewn for relief. It has already been said that no fraud was resorted to by the appellee in' obtaining it, and the only ground for seeking to reverse it is the dismission of the appeal by the circuit court, which was not done in consequence of any violation of his agreement by the appellee or his counsel, but simply because the law did not allow such an appeal. This was the law when the judgment of the county court was rendered, and if the fact that the counsel was mistaken in the law were good ground for relief in equity, a judgment at law would be of but little value. Eor these reasons I feel constrained to affirm the decree.

TYLER, J., concurred with GILMER, J.

Affirmed by a divided court.  