
    Hampton Cutter, appellant, v. Miller Kline, respondent.
    1. The record of a judgment at law imports absolute verity. The court of chancery cannot examine or determine whether it expresses the judicial determination of the court in which it was pronounced, or whether it was entered up, by mistake of the clerk, different from what it ought to have been or was intended to be.
    2. A judgment of the circuit court, upon proceedings to enforce a lien claim, may be general or special, or both. If, when the proceedings are against the same person as builder and owner, the record shows a general judgment only, •the court of chancery, in the absence of fraud or imposition, cannot directly or indirectly impose the debt involved therein as a lien on the lands in question, on the ground that it ought to have been recorded as a special as well as a general judgment, and was erroneously recorded by mistake of the clerk.
    The opinion of the chancellor is reported in Kline v. Cutter, 7 Stew. Eq. 329.
    
    
      Mr. G. R. Lindsay, for appellant
    
      Mr. B. A. Vail, for respondent.
   The opinion of the court was delivered by

Magie, J.

The facts of this case are so fully presented in the opinion of the chancellor, that it seems unnecessary to repeat them in detail. It will be sufficient, for an understanding of the conclusions arrived at, to state the following facts only.

A judgment in favor of Ayres, Lufbery & Co. was entered agaiust John T. Hewit, in the minutes of “the circuit court of Union county. The summons and proceedings were upon a claim, under the mechanics’ lien law, previously filed in the elerk’s office, and were against Hewit as both builder and owner. The judgment, as entered in the minutes, was both general and special, as permitted by the statute. If such was the judicial determination of the court, it is conceded that the judgment was a lien on the lands described therein, prior to a mortgage thereon held by Hampton Cutter. The judgment was assigned to Miller Kline, and was afterward recorded, but only as a general judgment against Hewit. If the record expresses the judicial determination of the court, it is conceded that the judgment became a lien subsequent to the Cutter mortgage. It is admitted in this cause that the recording of the judgment only as general, and not as general and special, was a mistake of the clerk of the circuit court. There was no claim that there was any fraud or imposition on the part of Cutter.

Upon the ground of the admitted mistake in the record, the chancellor decreed that the indebtedness, represented by the judgment, should be a lien on the premises, and that, unless Cutter (who had become the owner under a foreclosure and sale upon his mortgage) should pay that indebtedness, the premises should be sold to raise and pay the judgment of Kline before the mortgage of Cutter. This practically established the judgment as general and special, notwithstanding the record.

This decree is objected to on several grounds. The main contention is that the relief granted is not within the power of the court of chancery. The case shows that Kline has unsuccessfully applied to the circuit court for the correction of the record. The hardship of his case, upon the conceded facts, inclines us to uphold the decree if it be possible. But the question is to be considered not only with reference to the situation of this case, but also with regard to the propriety of permitting the examination of and interference with the recorded judgment of a court.

It will be perceived that the question thus presented is not whether a court of chancery may control or even prohibit the inequitable use of a judgment of a court of law, or the-process issued thereon. Such a power has been long conceded to that court, and beneficially exercised. But the question here is whether the court of chancery may go behind the record of a court of law, and examine and determine whether the record has been correctly made up by the official charged with that duty, so as to express the judicial determination of the court; and whether, upon it's conclusion that the record is erroneous, it may make the judgment other than what the record shows.

No aid in the solution of this question is derived from the fact that the parties in this cause have admitted the mistake, and have thus submitted the matter to a court of equity. Consent cannot confer jurisdiction. If such jurisdiction exists, it extends to all cases. It will justify a court of equity in taking proof to determine whether or not the official recorder of another court has properly performed his duty. Since such a recorder is bound to enter in the record only the judicial determination of the court, the jurisdiction now under discussion must include the power to examine and decide what the judicial determination of the court in fact was, and that not by the record but by evidence aliunde.

Considering the judgment in question, without reference to its peculiar character under the mechanics’ lien law, there are certain rules which are fundamental, and so established as to need no citation of authorities. Respecting the record of judgments, two questions may be raised. One respects the jurisdiction of the court over the subject matter adjudicated upon. The other relates to the existence of the adjudication. The latter question is to be tried ■ only by the record. If jurisdiction be admitted, the record is said to import absolute verity, and no averment or proof to the contrary can be received.

This rule excludes even the minutes of the court whose record is under consideration, if offered to contradict the record. Den v. Downam, 1 Gr. 135.

I cannot think any doubt can exist that the decree in this case violates these rules. The record is admitted; the jurisdiction of the circuit court over the subject matter has not been questioned, and is in fact unquestionable, and the record expresses a complete judicial determination. The decree invades the record, and assumes the right to determine that it is not the verity it imports to be. In this respect, I conceive it to be an entire innovation upon the recognized rules regulating the mode of dealing with judgments at law by courts of equity.

Lord Chancellor Ellesmere, between whom and Lord Coke occurred the memorable contest respecting the right of equitable interference with proceedings at law, has laid down the principles on which such interference would be justified. Earl of Oxford’s Case, and the note in 2 Lead. Cas. in Eq. 76. He said : “In this case [where there had been a judgment at law] there is no opposition to the judgment, neither will the truth or justice of the judgment be examined in this court, nor any circumstance depending thereupon, but the same is justified and approved.” He further expresses this conclusion: When a judgment is obtained by oppression, wrong or a hard conscience, the chancellor will frustrate and set it aside, not for any error or defect in the judgment, but for the hard conscience of the party.” Erom that time the distinction thus laid down has, so far as I can find, been sedulously adhered to. The jurisdiction of courts of chancery in this respect has been confined to cases where fraud or a hard conscience had either obtained an inequitable judgment, or were making inequitable use of a judgment. I can find in no case an assertion of a right to examine and determine whether the judicial determination of a court is other than that its record shows.

In the opinion of the chancellor, but one case is cited in support of this power.- It is the case of Loss v. Obry, decided by Chancellor Zabriskie, and reported in 7 C. E. Gr. 52. Upon examination it will be found that what was decided in that case cannot be considered authority for the assertion of power contained in this decree. The bill was filed to reform two deeds on account of a mistake, whereby more land was conveyed than was intended and agreed. One of the deeds had been made by a special guardian of infants. He had, under the statute, reported the sale to the chancellor. The report had been confirmed and a deed directed to be made. The deed was in conformity with the order of confirmation and the report. The mistake originated in the report, the guardian having reported an agreement with the defendants in the bill for the sale of the whole.of the infants’ laud, when in fact the agreement was for the sale of a part only. The order of confirmation and the proceedings not only Avere in the court of chancery and within the control of the chancellor, but they were, on their face, entirely correct. There was no error in the determination of the court or in its record. The error was that of the infants, or their representative, of which the defendants sought to take an unconscionable advantage. Relief was therefore properly granted.

In the opinion in that case, Chancellor Zabriskie declared that mistakes in the records of courts may be corrected by a court of equity. An examination of the cases he cited in support of the declaration will render it manifest that he did not intend to be understood as referring to other mistakes than such as appeared in the case then before him — that is, mistakes not of the court or its officials, but of the parties.

Thus, in Waldron v. Letson, 2 McCart. 126, the representatives of a mortgagor were enjoined from proceedings to recover lands intended and supposed to have been included in the mortgage. The mortgage had been foreclosed, and a sale of the land therein described had occurred and a deed had been made thereon. All parties supposed that the description included the land in question, when in fact it did not. The record and ■decree were therefore entirely correct. The error antedated the proceedings, and was participated in by all parties.

In De Riemer v. Cantillon, 4 Johns. Ch. 85, the mistake corrected occurred in a sheriff’s deed, which did not include all the premises actually sold.

■ In Barnesly v. Powel, 1 Ves. Sr. 119, 284, a will which had been admitted to probate in the ecclesiastical courts, had, upon a bill in chancery and an issue at law, been found to be forged. The probate had been procured upon a written consent of the complainant, which the chancellor held had been fraudulently extorted. Lord Hardwioke expressly admits inability to interfere with the decree of probate, but he directed the defendants to appear before the ecclesiastical court and consent to a revocation of the probate.

I do not find in these or in any other cases which I have discovered, any assertion of a right on the part of a court of equity to question the regularity of a judgment at law, or to adjudge that the record thereof does not express the judicial determination of the court.

My conclusion therefore is, that if this judgment were one of an ordinary character, the record must be accepted by every ■other court as truly expressing the adjudication of the court, and cannot be examined into or contradicted. If there be any error, the court, whose record it is, has power to correct it.

But the judgment in question is in fact one of a peculiar character. It was rendered in proceedings taken to enforce a mechanics’ lien claim. The right to such a lien is purely the creature of statute. However meritorious the claims of mechanics and material-men may be, there is no such equity in them as requires them to be preferred as liens, except as provided by the statute. They aré, however, thus accorded a preference by way of lien, and such lien, when properly filed, may be enforced by proceedings taken in the mode, within the time and before the tribunal designated by the statute. The tribunal provided by the statute for the enforcement of such a lien is the circuit court of the county in which the building is. The owner of the lands, at the time of its enforcement, must be a party to the proceeding. But the lien, if enforced, dates back to the commencement-of .the building. All who acquire an interest thereafter, other than as owners, are concluded by the determination, though not formally made parties. Jacobus v. Mut. Ben. Life Ins. Co., 12 C. E. Gr. 604. The determination is expressed in the recorded judgment of the court.

While the court of chancery, in dealing with the lands subject to such a Hen, may marshal the claim in its proper place and preserve -its position as regards other encumbrances, that court has not been entrusted by the statute with the power of determining whether the lieu can be enforced against the lands. The statute has entrusted that power to the circuit court. If the latter court has, upon a proceeding duly commenced before it, adjudged the claim to be no lien thereon, no other court can question or reverse that decision, except upon review in the nature of a writ of error. When the proceeding to enforce such a lien results in a judgment against the builder alone, the owner is entitled to a judgment against the plaintiff. Rev. p. 672 § 19. This is evidently applicable only when the builder'and owner are different persons, but when the same person is both builder and owner, a judgment against him as builder only, is a determination that the lauds in question are not subject to the lien under the statute.

The record shows that such was the determination of the circuit court respecting the claim of Ayres, Lufbery & Go., representing the debt now owned by Kline. The decree below now imposes that debt as a lien on the lands. In so doing, the court of chancery has adjudicated upon a matter which the record shows was once judicially determined in the statutory mode.

If this judgment is not what the circuit court ought to have rendered, it could have been amended in that court on a proper application, or reviewed by a writ of error.

Whether the judgment is what the circuit court intended to render, cannot be questioned, because, as we have seen, the record must be considered as absolutely expressing such intention.

With these views of the case I think the decree below cannot be sustained.

This renders it unnecessary to consider the other questions discussed, which relate to the alleged laches of Kline in applying for relief, and to the effect of" the decree in the foreclosure of Cutter’s mortgage, which established the priority of the mortgage over the judgment, Kline and his assignors being parties defendant in the cause, and also to the effect of an omission to endorse the issuing of the summons on the lien claim.

The true remedy of Kline was to procure an amendment of the judgment by the circuit court. If he postponed his application to that court for so long as to render the refusal of the amendment proper, he may have lost his remedy. If not guilty of laches, it may yet be within his power.

For affirmance — Scudder, Van Syckel, Cole — 3.

For reversal — Depue, Dixon, Magie, Reed, Green, Kirk — 6.  