
    JAMES E. P. BOULDEN v. THOMAS M. LANAHAN, Wm. Pinkney Whyte and Wm. C. Conine. JAMES E. P. BOULDEN v. THOMAS M. LANAHAN and Wm. Pinkney Whyte.
    
      Decided June 24th, 1868.
    
    Former judgment. Bills of review. Lis pendens.
    
    On the 23rd of January, i860, F. confessed a judgment in favor of L., for $50,000, which was subsequently assigned, one-half to C., and the other half to W.; and on the 26th of June, i860, a judgment for $75,000 was likewise confessed by F., in favor of L., which was subsequently assigned to W. On the 12th of June, 1862, A., a judgment creditor of F., filed its bill against F./ L. and W., for discovery in reference to *these judgments — they were admitted to be due and owing, and their validity was asserted, and they were in all respects recognized and treated in that proceeding as valid and subsisting incumbrances on the estate of F., the debtor. On the 1st of October, 1862, a decree was entered for the sale of the property of F., for the payment of these and other claims — the same was sold, and the sales were reported to and duly ratified by the court; and the proceeds of sale were distributed according to the legal priority of the claims. On the 1st of November, a month after the date of this decree, F. conveyed his equity of redemption in his real estate to E., who, on the 19th of January, 1863, conveyed it to B., who was a party defendant to the above proceeding, and in his answer admitted the recovery of the judgments aforesaid, and insisted that they should be paid out of other property of F., than that to which he, B., claimed title. On the 9th of April, 1864, B. filed a bill against L., C. and W., charging that the' aforesaid judgments were grossly affected with usury, and asking that the amount really due by F. to L., on said judgments and the extent and nature of the interest of C. and W. therein, might be accurately ascertained, and upon payment by the complainant, B., to the party rightfully entitled, of so much as should be truly and legally due on said judgments, to have them entered to his use or marked paid and satisfied, so that they might no longer exist as an incumbrance upon his equity of redemption in the property of F. Held: ■
    
    That the amplest opportunity having been afforded F., to contest these judgments and to defeat them, if there existed sufficient ground upon which it could have been done, he would be estopped by force of the decree of the 1st of October, 1862, from impeaching their validity upon the charge of usury; and B., claiming under him as assignee by a deed executed subsequent to the decree and pending the proceedings thereunder, occupies no higher or stronger position than he did and is as effectually bound by the decree.-  pp. 209, 210
    That relief could only be had, if at all, by a bill of review, making it to appear that due and reasonable diligence would not have enabled B., or F., under whom he claims to make the defense of usury in the former proceedings. p. 210
    A purchaser pendente lite, or after the litigation has terminated, is bound by the judgment or decree rendered against the party under whom he derives title. 
       p. 210
    Appeals from the Superior Court of Baltimore City.
    The bill in the above first entitled cause, was filed by the appellant, on the 9th of April, 1864. It stated that on the *ist November, 1862, Richard France, then of Baltimore City, seized of a large amount of property therein, greatly encumbered with judgments confessed by him, and on which some executions had issued, conveyed his equity of redemption therein to W. C. France, who conveyed it afterwards to the appellant. That thereby the appellant became entitled to such equity of redemption, with the right to inquire into the extent and validity of such encumbrances. That among such was a judgment confessed in the Superior Court by the said Richard France in favor of the defendant, Lanahan, on the 23rd of January, i860, for the sum of $50,000; and which, on the 12th of September, i860, to the extent of one-half; was entered to the use of W. C. Co nine, and subsequently, on the 8th of November, 1861, the other half was entered to the use of W. Pinkney Whyte. That the appellant was, from the first, well persuaded that Richard France was never indebted to Lanahan in such sum, but was only able, within a few days prior to the filing of the bill, to ascertain anything definite in regard thereto.
    The bill then charged that the only consideration given for the said judgment was about the sum of $5,000, the notes of France, Broadbent & Co., endorsed by France, for $43,994.87, for which the said Lanahan had only paid $30,674.87, retaining the difference as usurious interest, pretended to be charged at the time of the discounting of the notes. That there was never anything due on said judgment, if usurious excesses of interest had been returned, and, in any event, not more than $18,000, and on which payments had been made by notes secured by another judgment. That since the rendition of the judgment, Lanahan had received of the money of said France, by the sale of his property and otherwise, more than sufficient to discharge the judgment. That the complainant had a right to inquire into the amount due, to pay it, and have the judgment to the extent of such payment entered to his use, or satisfied. That Whyte ánd Conine had long since ceased to have any interest in said judgment, but no.release ^appeared to have been filed. A statement was filed with the bill showing the amount alleged to be due. The bill prayed that the amount really due might be ascertained, the extent and nature of the interest of Whyte and Conine therein set forth, and upon payment by the complainant of the sum legally .and fairly due, the judgment should be entered to his use, or marked satisfied.
    To this bill the defendant, Lanahan, pleaded, in bar of the relief sought, firstly, that on the 12th of June, 1862, the Bank of Commerce filed its bill of complaint in the Circuit Court of Baltimore City against France, himself, and other parties, for relief by application of the estate of France to the payment of his debts in due order. It was therein alleged that he, Lanahan, had recovered two judgments against France, the one for $50,000, the other for $75,000 — that on the 23rd October, 1861, France conveyed his real estate, or a considerable part thereof, to Whyte, and on the Jth November, 1861, Whyte conveyed, certain parcels of the said real estate to him, Lanahan, and that the first of said judgments recovered by him had been entered for the use of Conine to the extent of $25,000, and that the residue of said judgment, and the entire judgment for $75,000 were entered for the use of Whyte, and it prayed discovery in regard to the consideration of these assignments ; and insisted that if it should appear that said judgments had been assigned to Whyte in consideration of the conveyance so made by Whyte to Lanahan, and if said estates were sold at their' fair values, then that said judgments ought to be entered satisfied; and that otherwise the said conveyance ought to be set aside. To which bill France answered, and thereby admitted the recovery of said judgments against' him, and of the entry thereof for the use of the said Conine and Whyte, and Whyte filed his answer and admitted the said recoveries, and Lanahan filed his answer and affirmed the integrity of the conveyance so made by Whyte to him, and the entry of the said judgments to the use of Whyte, in consideration thereof, and offered either to stand by that conveyance and assignment, or that they should be can-celled, and the property conveyed to him, with certain exceptions, should be sold for payment of the debts of France, and in the latter alternative, offered to credit the values of the excepted parcels on his judgment for $75,000. That afterwards, the present complainant, Boulden, was made a party defendant to said suit in respect of certain interests which he claimed to have in parcels of said property, and he admitted said recoveries, and insisted that said judgments ought to be satisfied out of other properties of the said France, in exoneration of the interest so claimed by him. That on the 1st of October, T862, a decree was passed in the cause, directing a sale of the property so conveyed by France to Whyte, with certain exceptions, and all other real and personal property of France, to be sold to satisfy the said two judgments and other liens and incumbrances thereon, and Lanahan was appointed to make said sale; and the said entries for the use of Whyte were annulled, and it was declared that Lanahan was entitled to the benefits of said judgments, saving the rights of Conine, as aforesaid.
    And, secondly, that after the passing of said decree and in execution thereof, the said trustee sold the premises so directed to be sold, and reported said sales to the court, and the same were duly confirmed; and that on the 6th March, 7863, the auditor reported an account, applying the proceeds of sales aforesaid, to the payment to Conine of $27,033.35, in full of his interest as assignee in part of the first judgment, and to Lanahan the sum of $57,157-73, in part payment of the residue of said judgments; and that, on the 18th April, 1863, it was ratified and confirmed, with the exception of $3,636.83, allowed to Leah W. France, in lieu of her title to dower, and of $7,000, part of the sum so awarded to Lanahan as aforesaid, and the proceeds were directed to be applied accordingly; and that by said report it appeared there was due on said first judgment the sum of $58,575, and that after satisfying thereout, the sum of $27,033.35, parcel thereof, ^awarded to Conine, there remained due on said judgment a balance of $31,541.65, wherefore out of the said balance of $57,157.73, so made payable to him, he, Lanahan, retained the sum of $31,541.65, in full satisfaction of the said first judgment, which was prior in date of recovery to the judgment for $75,000. Conine also pleaded in bar, as against him, the proceedings set out in the pleas of the defendant, Lanahan, and payment under the ratified auditor’s report. Whyte answered, and after denying all knowledge of the complainant’s title, or of the usury in the judgment, relied upon the same proceedings as a bar to relief.
    The bill filed on the same day against Lanahan and Whyte alone, in reference tó the judgment for $75,000 confessed on the 26th of June, i860, by France in favor of Lanahan, and which on the 8th of November, 1861, was entered to the-use of Whyte, was in its scope and object similar to the bill filed for relief in respect of the judgment for $50,000; the defendant, Lanathan, relied on the same decree recovered in the case of Bank of Commerce v. France, and the proceedings in execution thereof. _ Whyte’s answer, as in the other case, denied all knowledge of the title of the complainant and of usury in the judgment, and relied upon the decree in the case of Bank of Commerce v. France, and the various orders thereunder as a bar to the relief sought by the complainant. '.
    In each case the court, (Martin, J.,) on the 3rd of July, 1865, passed' an order sustaining the sufficiency of the pleas. From these orders the complainant appealed.
    The causes were argued together before Bartol, C. J., Nelson, Brent and Alvey, JJ.
    
      
      George H. Williams and N Teackle Wallis, for the appellant:
    As the pleas do not negative any of the allegations of the bill, the averments therein are to be taken as true. Story’s Eq. Pl. sec. 694; Carroll v. Waring, 3 G. & J. 497.
    *The plea of a former suit depending, requires that the whole effect of the second suit should be attainable in the first. Story’s Eq. Pl. sec. 739; Law v. Rigby, 4 Bro. Ch. 60; Pickford v. Hunter, 3 Simon, 122.
    And it should aver that the second suit was for the same object as the first, that the same issues were joined, and that the proceedings in the first suit were taken for the same purpose. Shafer v. Stonebraker, 4 G. & J. 355, 360; Story’s Eq. Pl. secs. 737, 783; Gough v. Pratt, 9 Md. 526; West v. Beanes, 3 H. & J. 568.
    A final judgment, when pleaded, must be between the same parties, and for the same subject-matter substantially, and where not brought by the same persons' in different rights. Story’s Eq. Pl. sec. 791; Packet Company v. Sickles, 5 Wallace, 592.
    And the plea should have negatived the charge of fraud and usury. Story’s Eq. Pl. sec. 794; Hitch v. Fenby, 6 Md. 223.
    
      I. Nevitt Steele, for the appellees :
    Richard France could not by original bill, impeach Lanahan’s judgment on the ground of usury in its inception. West v. Beanes, 3 H. & J. 568; Hitch v. Fenby, 4 Md. Ch. 190. The validity of the judgment was confessed by France, by Whyte and by the appellant, in their answers filed in the case of Bank of Commerce v. France. And the decree in that cause expressly declared the right of Lanahan to the benefit of that judgment.
    In Buchanan v. Lorman, 3 Gill, 80, where an effort was made to restrain the execution of a decree rendered by a Virginia Court for matters existing anterior to the decree, this court declared “ that the decree must be considered as conclusive as to the merits upon the equities anterior to the decree and as having all the efficacy of a domestic judgment or decree, and it would not there be examinable upon any ground of equity existing prior to the decree, and as it could *not be upon such ground examinable in Virginia, we are legally incompetent to examine it here.”
    
      In this case there is not only the judgment at law, but further, the bill filed by a judgment creditor against France, and all other incumbrancers for a sale of his estates, and the application of the proceeds thereof according to the respective rights of his creditors; and in the progress of that suit, an answer of France, admitting Lanahan’s judgment, and a decree declaring his- right, and the right of his assignee, Conine, to the benefit of the judgment — the auditor’s report, appropriating a part of the proceeds of sales made under the decree to the satisfaction of the judgment — an order of the court ratifying that report, and payment of the proceeds to the judgment creditors accordingly.
    The same principle, that a decree is res judicata, in respect to all matters of defense existing, and which were available by the party at the date of the decree, is affirmed in McDowell v. Goldsmith, 6 Md. 309; Dorsey v. Dorsey, 10 Md. 471; Blackburn v. Crawford, 22 Md. 448. ' ,
    France could be relieved (if at all) only by a bill of review, filed within nine months from the date of the decree, on the discovery of new matter, if newly discovered matter be relied on as cause for review. Hitch v. Fenby, 4 Md. Ch. 190.
    But France must have known, and indeed, upon the statements in the bill, must be taken to have known of the alleged usury — the new matter alleged — at the time of confessing the judgment.
    The present appellant cannot claim any higher equity than Richard France could claim. Coming in pendente lite, by mesne assignments from Richard France, he is bound by the proceedings to 'the like extent with France. Inloes v. Harvey, XX Md. 519.
    The assignment from Richard France to Wm. C. France, under whom the appellant claims, was made after the date of the decree passed in the case of Bank of Commerce v. France, he, therefore, cannot avoid the effect of the *decree and the proceedings in execution thereof, by original bill. The decree passed before Richard France had made any assignment, is conclusive against the right of the present appellant claiming under France, by matter subsequent, to impeach the judgment. And the order of ratification passed with the consent of the appellant, is equally conclusive against his right to question the accuracy of the account, which was ratified by that order; and especially under color of any title pretended to be in existence at the date of the order. The bill supposes the recent discovery of material evidence. The objection still remains intact. Newly discovered evidence may be ground for a bill of review, but is not available on an original bill to re-examine matters already settled by decree. The only difference between the two cases is: the entire interest of Conine in the first judgment was satisfied by the payment made to him out of the proceeds of sale raised under the decree in Bank of Commerce v. France. The surplus proceeds of said sales, which were declared to be applicable in payment of the second judgment, sufficed to discharge a part only of that judgment. This difference, however, is immaterial in principle. The proceeds of other sales under that decree will be applicable in payment of the second judgment until the same shall be fully discharged. But the legal effect, of a judgment or decree does not depend in any degree upon the sufficiency or insufficiency of the fund to be charged. Independent of any such considerations, the judgment or decree is conclusive, to the full extent of the sum or thing recovered in favor of the recoverer, and against all defenses existing at the time of the recovery. The answers of the parties, therefore, who admit the judgments, and the decree which declares Lanahan’s right to the benefit of the judgments, are necessarily conclusive in respect of the amount to be realized on them.
    
      
      а) A judgment creditor stands in the place of his debtor, and can only take the property of his debtor subject to the equitable charges to which it was justly liable in the debtor’s hands at the time of the rendition of the judgment, except where the principle may have been modified by statute; see Valentine v. Seiss, 79 Md. 190-191. As to estoppels by former judgments and decrees, see Oursler v. B. & O. R. R. Co., 60 Md. 367; Mobberly v. Mobberly, Ib. 379; Archer v. State, 74 Md. 423. The estoppel of a judgment extends not only to matters which were, but to matters which might have been presented; State v. Brown, 64 Md. 203-204. As to the effect of decisions of the Court of Appeals upon persons who were not parties to the record, see Story v. Ulman, decided by the Court of Appeals in June, 1898; see also Swann v. Kolb, 68 Md. 516.
    
    
      
       As to the lien of lis pendens, see Murguiondo v. Hoover, 72 Md. 17; see also note to Inloes v. Harvey, 11 Md. 519.
    
   Alvey, J.,

delivered the opinion of the court.

We think the pleas interposed to the bills in these cases, allege sufficient matter to bar the relief sought to be obtained.

*The Bank of Commerce filed its bill on the £2th of June, 1862, after the rendition of the two judgments, the one of $50,000, and the other of $75.000, in favor of Lanahan, and before Richard France conveyed the equity of redemption in the property now sought to be relieved of the incumbrance of these judgments. Richard France, the judgment debtor, and party under whom the complainant claims and holds his title, was a party defendant to the proceedings instituted by the Bank, and was required to-answer and make discovery in reference to these very judgments; and the complainant and defendants to the present proceedings were also parties to. the suit of the Bank. The decree in that proceeding was entered on the 1st of October, 1862, and a month, thereafter Richard France conveyed his equity of .redemption in his real estate to William C. France, who, on the 19th of January, 1863, conveyed the same to the complainant.

The Bank of Commerce was a judgment creditor of France, and its bill was filed for discovery from the defendants, as to the extent and character of the claims existing against France, and to be relieved, by the application of the estate of the debtor to the payment of his debts, in due order of priority. The judgments now in question were admitted by France to be then due and owing by him, and their validity was asserted, and they were, in all respects, recognized and treated in that proceeding as .valid and subsisting incumbrances on the estate of the debtor. Property was decreed to be sold for the payment of these and other claims, after what was supposed to be a full and satisfactory ascertainment of their legal' and equitable existence and operation,, and the proceeds of sale were distributed to them according to their legal priority. The fullest and most ample opportunity was, therefore, afforded to both France and the complainant, in the present proceeding, to contest these judgments, and to defeat them, if there existed sufficient ground upon which it could have been done. This opportunity, however, was not availed of, and the proceedings were allowed to take place upon the assumption that the judgments *were in all respects valid, and free from the .imputation that is now made against them. After these proceedings, thus founded, we take it to be clear, that, as to parties thereto possessed of infoimation, or who could, by reasonable diligence, have become possessed of information to enable them to make a defense, all anterior equities must be considered foreclosed, for otherwise, there would be no end to contention and litigation.

If relief could be had in the present form of proceeding at all, instead of a bill of review, (a question which we do not now decide,) it could only be had upon the same conditions that a bill- of review or a supplemental bill in the nature of a bill of review, for newly discovered matter would be allowed; and 1 hat is, that the complainant could make it appear that due and reasonable diligence would not have enabled him, or the party under whom he claims, to make the defense to the enforcement of the judgments on the former proceedings, that is now sought to be availed of in the present. The bills in the cases before us make no allegation that by due and proper diligence, the facts now set up to defeat the judgments, could not have been known before, or at the time of the former proceedings had; and, indeed, no such allegation could have been made, for it cannot be pretended that France, under whom the complainant claims, was not fully conversant of all the facts attending the transactions between himself and Lanahan. And, being so, he must be regarded as concluded by the former proceedings; and the complainant can stand in no better or more favorable position, in reference to those proceedings, than France, under whom he claims. For he purchased the equity of redemption after the decree was entered in the proceedings instituted by the Bank, and pending the proceedings thereunder; and no principle is better settled than that a purchaser pendente lite, or after the litigation terminated, is bound by the judgment or decree rendered against the party under whom he derives title. Inloes v. Harvey, 11 Md. 519; 1 Story’s Eq. sec. 406.

*We are of opinion, therefore, that the Judge in the court below, was right in sustaining the pleas of the defendants, and that the cases cited by him, Buchanan v. Lorman, 3 Gill, 80; Hitch v. Fenby, 4 Md. Ch. 190, and 6 Md. 218; McDowell v. Goldsmith, 6 Md. 309; Barrs v. Jackson, 1 Phillips, 582, are altogether conclusive against the appellant.

The orders appealed from, are, therefore, affirmed, in both cases, with costs. Orders affirmed.  