
    Cameron, executor &c. vs. Fowler.
    A moral obligation is a sufficient consideration to support a promise, if founded upon a prior legal or equitable claim.
    Accordingly, where, after the commencement of a suit upon a contract for the sale of lands, the defendant made various payments thereon, and afterwards suffered the plaintiff to take judgment for the whole amount, .by default; held, in an action upon the judgment, that the defendant might defeat a recovery by showing that, after the judgment was rendered, the -plaintiff promised to apply the payments, and admitted that the defendant had fully performed the con. tract.
    Debt on judgment, tried at the Steuben circuit, in June, 1841, 'before Monell, C. Judge. Samuel Brownson and the defendant entered into a written agreement, dated the 6th of December, 1820, by which the former agreed to sell and the latter to purchase a lot of land in Steuben county, for the sum of $480,61, payable in three equal annual instalments. On the 7th of June, 1825, Brownson conveyed his interest in the land and assigned the contract to the plaintiff’s testator. At the time of the assignment the defendant had paid only $111, and in August thereafter a suit Avas commenced in the name of BroAvnson against the defendant to recover the balance due on the contract. In May, 1826, judgment Avas rendered against the defendant by default for $654 damages and $29,61 costs. BroAvnson died soon after, and, no executor or administrator having been appointed upon his estate, the plaintiff brought this action to recoArer the amount of the judgment. (See 2 R. S. 274, § 5, 2d ed.)
    
    The defendant proved that various payments were made to the plaintiff’s testator on the contract upon Avhich the judgment was recovered, intermediate the commencement of the suit and the rendition of judgment. Evidence Avas given, also, tending to establish that, after the judgment was recovered, the plaintiff’s testator promised to apply the payments on the judgment, admitted that the contract had been fully paid up, and that the defendant was entitled to a deed of the land. This evidence Avas received subject to objection by the plaintiff’s counsel.
    The judge charged the jury that the judgment on which the action was founded could not be impeached nor invalidated by proof of payments made upon the contract before the judgment Avas rendered; that the evidence of such payments Avas inadmissible for that purpose, but was proper for the purpose of establishing an equitable consideration to sustain a promise by the plaintiff’s testator, made after the judgment was rendered, that he Avould discharge it or apply the payments upon it • that if the jury believed the defendant had made payments as alleged, before the rendition of the judgment, and that the plain tiff’s testator promised, after judgment Avas recovered, to apply such payments thereon, such promise Avas binding and would affect the judgment to the amount of those payments, in the same manner as though they had been made after judgment rendered.
    The jury rendered a verdict in favor of the defendant, and the plaintiff now moved for a new trial on a case.
    
      E. Howell, for the plaintiff.
    
      R. Campbell, Jun., for the defendant.
   By the Court, Nelson, Ch. J.

The admissions of the plaintiff’s testator that the judgment in question had been paid, were clearly proved, and I think the learned judge might have safely placed the case upon this ground alone before the jury, who would not probably have hesitated in finding the fact. Such was, indeed, the effect of the charge. But it is insisted that an error was committed in receiving evidence of payments upon the contract before judgment rendered, and of the agreement of the testator to apply them in satisfaction. I think, however, the evidence was proper within the principle of Bentley v. Morse, (14 John. 468.) There, M. paid B. an account for work, done, and the 1 atter afterwards recovered judgment on the account by default. When reproached for the act, B. denied- all knowledge of the payment, but agreed that if the demand had in fact been paid, he would refund the money. The court said: “ The debt having been paid, the recovery in the former action was clearly unjust; and though, in consequence of his neglect, the defendant in error [B.] lost all legal remedy to recover back his money; yet there was such a moral obligation on the part of the plaintiff in error [M.] to refund the money, as would be a good consideration to support an assumpsit or express promise to pay it.”

In the case before us, there existed a clear legal as well as equitable obligation to apply the payments in extinguishment of the debt against the defendant, before it passed into judgment; and though afterwards the obligation became incapable of being enforced, still it constituted a good consideration for the subsequent agreement of the plaintiff’s testator. (Edwards v. Davis, 16 John. 283 note, (a); Bull. N. P. 147; Wennall v. Abney, 3 Bos. & Pull. 249, note; Ehle v. Judson, 24 Wend. 97; Stafford v. Bacon, 1 Hill, 532, 539.)

New trial denied.  