
    Abraham H. Herr vs. John A. Barber et al.
    Equity. No. 7,227.
    J Decided October 29, 1883.
    } The Chief Justice and Justices Hagnek and James sitting.
    3. Where a decree is made against several defendants for the payment of a sum of money, a payment of the amount by either of them works a satisfaction of the decree, because all the defendants are principals and the duty to pay the whole sum devolves upon each of them. Therefore, after a decree is thus satisfied, an execution can no longer issue under it against the other defendants for the purpose of enforcing contribution from them.
    2. The Maryland act of 1763, chap. 23, sec. 8, providing that where a, judgment has been recovered against the principal debtors and sureties and the judgment has been satisfied by one surety, the creditor shall be compelled to assign tbe judgment to him, is in force in this District,, but it applies only to cases where payment is made by a surety on judgments, and not to decrees.
    3. Contribution, at law, cannot be enforced by one iori-feasor against his co-wrong doers, where the transaction out of which the judgment arises involves moral turpitude. So, if the controversy, upon which a decree is rendered, were a breach of trust .on the part of all the-defendants, the defendants would stand in the position of joint tortfeasors, and one of them, after having- paid the amount of the decree, could not have an execution upon it against his co-defendants, for the-purpose of enforcing contribution from them.
    
      4. Where, after a decree is rendered against joint tort feasors, one of the defendants conveys his land and, subsequently, another of the clefencl-
    . ants satisfies the decree by payment, the land so conveyed is discharged from the liability which attached to it while the decree remained unsatisfied.
    
      5. Precedents and principles should not be departed from in order to meet what may be thought to be the abstract justice of a particular-ease.
    STATEMENT OE THE CASE.
    The bill in this cause was filed in April, 1880. It alleges-that in December, 1873, Samuel Strong had filed a bill against John A. Barbour and a certain Dodge and Darneiller for a discovery and account, and to recover a sum of money which the plaintiff alleged was due to him by the defendant-as his agents. In February, 1876, a decree was passed ordering that the defendants should pay to the complainant the sum of $2,115.92, with costs. After the decree viz., in March, 1876, Dodge and Darneille conveyed the real estate, which is the subject of controversy in this suit, to the complainant Herr. An appeal was taken from the decree to the Supreme Court of the United States, but was dismissed. After the entry of the mandate of that court, in June, 1879, an execution was issued upon the decree, and by direction of the solicitor of Strong, levied upon real estate belonging to John A. Bai’ber. In September, 1879, Barber paid one thousand dollars on the decree to Totten, for whose use it had been entered. In January, 1880, the marshal was ordered .to sell the property of Barber under the execution, to raise the balance of the money. On the 9th of February, 1880, the execution, by order of Strong’s solicitor, was returned “released,” and an alias execution was ordered and, by his direction, levied upon the property conveyed by Hodge and Harneille to the complainant. On the next clay, the balance due under the decree, with interest and costs, was paid by John A. Barber to Totten. A receipt was given to Barber for the amount, and the decree was entered, by Totten’s order, for the use of Margaret O. Barber, and an order was then given by Barber’s solicitor to sell the land so conveyed to the complainant, under the'execution. Thereupon this bill was filed, charging, among other things, that the decree had been entered to the use of the said Margaret C. Barber, by the procurement and contrivance of said John A. Barber, and for his benefit and behoof after its satisfaction and extinguishment, in order to compel the complainant by force of the execution to contribute in favor of the said John A. Barber towards the payment of the decree, notwithstanding it had been already extinguished by satisfaction made by the said Barber to Totten. It prayed that the execution and levy upon the complainant’s property should be vacated and the property decreed to stand exempt from all claim on the part of John A. Barber, or Margaret C. Barber. In the bill an affidavit by the defendants to their answers was-expressly waived.
    Mrs. Barber, alone of the defendants, answered, and without oath. Her answer insisted that the assignment of the. decree and its entry on the docket to her use, were made by her authority and with her consent. It denied specifically that John A. Barber had induced Totten to have the suit against Strong entered to her use, but, on the contrary, stated that the inducement proceeded entirely from her, and that the money paid by her to Totten was the consideration for the transfer to her of the decree ; it claimed that, as a purchaser for value, she was entitled to all the rights under the decree to which the complainant. Strong was entitled ; and denied that it had been satisfied, or was extinguished. Issue was joined upon this answer, and the testimony of Mrs. Barber and of Mr. Totten, both of whom were called by the complainant, is the only evidence taken in the case.
    The court below, at special term, passed a decree vacating and setting aside the execution and levy upon the property conveyed to Herr, and declaring that the property should be exempt and free from further claim in the premises, and the appeal was taken by Mrs. Barber from that decree.
    John Selden for plaintiff:
    That the balance due upnn the decree recovered by Strong was paid by John A. Barber with money that was absolutely his own, though derived .from the bounty of his mother, is the involuntary conclusion to be drawn from her testimony.
    And such also, at least, is the-admission of the son, under the legaL effect of the decree pro confesso, passed against him below.
    The circumstance that the money paid by the son was derived from the generosity of the appellant can have no influence upon the case.
    The legal incidents of absolute property do not depend upon the source from which the title to such property is deraigned.
    They are the same, both as to real estate and to personalty, whether obtained by intestacy or by contract, whether by testamentary disposition or by gift inter vivos.
    
    And the payment made by John A. Barber must be considered as attended with the same consequences, “ no matter how he obtained the money.” Alderson vs. Ames et al., 6 Md., 56.
    
      Was tho decree' rendered in favor of Strong extinguished by the payment by John A. Barber of the balance due thereon ?
    Upon this question it is submitted, with much confidence, that no difficulty can arise.
    Payment by one of several joint contractors enures to the benefit of all. 5 Rob. Pract., 883.
    A bond may be extinguished when paid by a surety therein. Wofiington vs. Sparks, 2 Vesey, 569; Jones vs. Davis, 4 Russ., 278.
    So, a mortgage is extinguished when paid by a person who is under obligation to discharge it. Walker vs. Stone et al., 20 Md., 198; Boyd vs. Parker & Co., 43 Id., 202.
    In like manner a judgment or decree is extinguished when paid by one of several who are bound thereby. McGinnis vs. Harris, 7 Jones (Law), 216; Russell vs. Hugenin, 1Scam., 562; Gilleft vs. Sweat, 1 Gilm. (Ills.), 475; Thompkins vs. Fifth Nat. Bank et al., 54 Ill., 60.
    Contribution cannot be enforced by execution upon the judgment or decree. Hamwatt vs. Wyman et al., 9 Mass., 142; Brackett vs. Winslow et al., 17 Id., 159; Holmes vs. Day, 108 Id., 596; National Security Bank vs. Hunnewell, 124 Id., 261.
    Nor the judgment or decree continued in existence by assignment, whether to the person who pays or to another at his instance. Adams vs. Drake, 11 Cush., 505; Bartlett vs. Warington et al., 4 Ala., 692; Hogan vs. Reynolds, 21 Id., 59; Bones vs. Aiken et al., 35 Iowa, 536; Ontario Bank vs. Walker, 1 Hill, 653; The Bank of Selina vs. Abbott, 3 Denio, 182; Morley vs. Stevens, 47 How. Pr., 229; Booth vs. F. & M. Nat. Bank, 74 N. Y., 232.
    The purpose of the parties cannot alter the legal effect of the payment. “The judgment,” says Selden, J., “ becomes thereby extinguished, whatever may be the intention of the parties to the transaction.” Harbeck vs. Vanderbilt, 20 N. Y., 398.
    The equitable distribution of the expense incurred by one of several individuals, in discharging an obligation common to them all, is effected through the familiar process of -contribution.
    
    But this process plainly recognizes the extinguishment of the original obligation, and its incapability, in consequence, of transfer or assignment. 1 Story Eq. Jur., §§ 499 b, 449 d.
    
    The legal effect of the decree obtained by Strong was to implicate in a common breach of trust all of the defendants against whom that decree was pronounced.
    It can scarcely be necessary to uige that, between defendants thus situated, contribution could not be enforced.
    The doctrine of extinguishment by payment reposes upon very satisfactory principles.
    If one of several bound by the same judgment or decree, were permitted to become the owner thereof, by payment, and to enforce it, at pleasure, against any or all of his co-debtors, the right of contribution would be defeated where now it prevails, and enforced where it does not at present ■exist.
    Upon satisfying the first payer, his co-debtor might, in turn, lawfully enforce the judgment or decree against all or any of the others, these again might enforce it inter sese, and the proceedings might prove interminable.
    R. Ross Perry and John C. Wilson for Mrs. M. C. Barber:
    1. Samuel Strong’s bill of complaint No. 3531, in this court, against John A. Barber, Robert P. Bodge and P. A. Darneille, alleging that certain fraudulent practices and ex-actions had been conducted and perpetrated against him by them whereby they had converted to their own use certain money belonging to him. The case was regularly proceeded with, and resulted in a decree requiring Barber, Dodge and Darneille to pay $2,115.92 to Strong.
    At this ■ time Dodge and Darneille were seized in fee simple as tenants in common of part of Lot 4, in Square 292, fully described in the bill of complaint, and John A. Barber owned in severalty certain other real estate hereinafter described.
    
      On the 9th of November, 1875, Strong- assigned his interest in the decree to Enoch Totten, who, on the 5th of' June, 1879, ordered the marshal to levy a fi. fa. on lots 96, 97, 98 and 99, in square 364, the property of John A. Barber, which levy was made. On the 10th September, 1879, John A. Barber paid Totten $1,000, and took his receipt. This was a little more than one-third of the whole amount due at that time. On or about the 9th sday of February, 1880,. Totten agreed with the attorney of the defendant, M. O. Barber, who is the mother of'John, to order a release of the levy on John’s property, and to assign the decree to her, upon payment of the balance due upon it. The release of the levy on Barber’s property was ordered, the marshal was directed to make a new levy for the balance due on the part of lot 4, in square 292, which had been owned by the defendants, Bodge and Barneille, jointly, at the time when the decree was rendered, the money was paid by Mrs. Barber’s attorney, to Totten, a receipt was taken in her name, the decree was assigned to her in writing, and entered to her use on the docket.
    Prior to the assignment to Mrs. Barber, but subsequently to the signing of the decree, Bodge and Barneille had conveyed the said part of lot 4, in square 292, to the complainant Herr, who at the time had actual notice of the decree against them in cause No. 3531.
    When the marshal levied on part of lot 4, square 292, Herr filed the bill ,in this case, setting out the fraudulent character of the transaction out of which the indebtedness grew, claiming that the final payment to Totten had been made by John A. Barber, and not by his mother, and that the said part of lot 4, in square 292, could not be levied on until all of John A. Barber’s property had been exhausted.
    2. Upon the records of this court the decree, in cause No. 3531, stands regular in form, and unsatisfied. The assignment to Mrs. Barber, the entry to her use, the levy on part of lot 4, square 292, are all in due form, and unless this court interferes by injunction there is nothing to prevent a valid sale and conveyance by the marshal.
    
      “ This examination will be premised by stating the following principles of equity jurisprudence, which may be affirmed to be without exception ; that whosoever would seek admission into a court of equity must come with clean hands j that such a court will never interfere in opposition to conscience or good faith.” Creath vs. Sims, 5 How., 192.
    
      “ It is a principle in- chancery, that he who asks relief must have acted in good faith. The equitable powers of the court can never be exerted in behalf of one who has acted ^fraudulently, or who, by deceit or any unfair means, has gained an advantage. To aid a party in such a case would make this court the abettor of iniquity.” Bein vs. Heath, 6 How., 247; and see to same effect, Bolt vs. Rogers, 3 Paige, 154; Harrington vs. Bigelow, 11 Paige, 349; Carey vs. Smith, 11 Ga., 539.
    If this bill, setting up their own fraudulent conduct and practices, had been filed by Bodge and. Darneille,-the court would not hear them at all, even if the result of such refusal should be to throw the whole debt upon them, instead of their fair and just proportion. This court would say to them, in the language of Mr. Justice Daniels in the case of Creath vs. Sims, above referred to, “however unworthy may have been the conduct of your opponent, you are confessedly in pari delicto ; you cannot be admitted here to plead your own demerits; precisely, therefore, in the position in which you have placed yourself, in that position we must leave you.”
    But Herr is in no better position than Dodge and Darneille. He bought with full notice of their liability, and of the lien on their property, and of the nature of the transaction creating the liability; and he can have no equity superior to theirs.
    In the case under consideration there was no original equity between Dodge and Darnielle on the one hand, and Barber on the other. Dodge and Darneille could not have required Barber to pay Strong the whole debt, and to exonerate them. If the'judgment had been levied on their property, they could not have compelled the judgment creditors to resort first to Barber’s property. As they had no such right themselves, they could not transfer such a right to the assignee. The assignment could not create a right in the assignee which the assignors did not possess. An assignee with actual notice can never acquire any rights superior to those of his assignor.
    3. It is shown, also, by the l’ecord, that the money was actually furnished by Mrs. Barber ; that it was delivered to Totten by her attorney for her, and a receipt and assignment taken in her name, and that it has never been repaid or secured to her in any way, except in so far as this assignment secures it. It is perfectly clear that the intention of the parties at the time when the assignment was made by Totten, was to effect a transfer of the decree, and not a payment or satisfaction of it.
    Under these circumstances it can make no practical difference, that whén Mrs. Barber entrusted the money to her son she did not understand the exact manner in which it was to be used, or did not intend to insist on its repayment by him. In a previous transaction of a similar nature she did not know that her son had given her a deed of trust to secure her, although it had been regularly executed and recorded. If, in the present instance, she intended to give the money to him he was not bound to accept it as a gift, but had a perfect right to use it in such manner as to secure its repayment; and the manner in which it was applied shows that he did not consider it a gift or accept it as such. If it was a gift originally he gave it back to his mother when he delivered it to her lawyer to be used in obtaining an assignment of the decree to her.
    A court of equity will not construe such a transaction contrary to the intention of the parties to it, in the interest of persons who come into court alleging their own fraud and dishonesty, or of the assignee of such persons with notice. It will not, at the instance of such parties, and under such circumstances, disturb the just and equitable apportionment of the debt among the three joint debtors, which has been the practical ^result.
    
      4. It has been decided that a release of a levy of an execution on personal property of sufficient value, operates as a satisfaction. But a release of a levy on real estate does not have that effect. Wylie vs. Stanford, 22 Ga., 385; Smith vs. Walker, 18 Miss., 584; Peale vs. Bolton, 24 Miss., 630; Hoggshead vs. Carruth, 5 Yerger, 227; White vs. Graves, 15 Texas, 184; Shephard vs. Rowe, 14 Wendell, 260; Duncan vs. Harris et al., 17 Serg. & R., 436.
   Mr. Justice Hagner,

after making the foregoing statement of the case, delivered the opinion of the court.

The evidence of Mrs. Barber is undoubtedly greatly in-conflict with the averments in her answer. It appears, as undisputed in the case, that the first one -thousand dollars paid by John A. Barber, on the decree, in September, 1879, was borrowed by him from his mother, and that he executed a deed of trust upon his other property to secure its repayment. As to that payment, therefore, there can be no question that it was made with the proper money of John A. Barber.

It is proved by Mrs. Barber, that the remaining sum of $1,780 was also obtained from her by John A. Barber. She testifies that for that sum she had no security from her son, and that she did not expect any when it was given to him ; that it had not been advanced in the nature of a loan ; that it had not been furnished upon any understanding, expressed or implied, that it should be appropriated, in whole or in part, to the purchase of the decree ; that she “ gave him the money to do as he pleased with it; ” that she “ gave him the money as a present to do as he pleased ; ” that she “ had been giving him money all her life, at least ever since the death of his father ; ” that “ there was no agreement between them for its repayment; ” that she “did not request or require him to devote any portion of it to any specific purpose ; ” that she had nothing, personally, to do with any of the steps which resulted in the assignment of the decree to herself ; ” “I did not,” she says, “ request it at all; my son gave it to me without any request; I did not ash him for .it.” She also stated that it was her son who employed counsel to procure the assignment of the decree, and that she received from his hands the contract, which she signed with her solicitors, who had also been .the solicitors of her son in the previous history of the case.

The first question for our consideration is, was the decree satisfied by its payment, in full, to Totten, the assignee of Strong ?

The general principle is well settled, that the payment of an incumbrance by one whose duty it is to pay extinguishes it. So, payment made by one of several joint obligors works the satisfaction of a bond. Bowie vs. Carroll, 7 Gill, 34.

A judgment, upon its payment by one of the defendants, becomes functus officio. It perishes in fruition.

In this decree all the defendants were principals, and the duty to pay the whole of the debt devolved upon each, and a payment by either worked a satisfaction of the decree.

In Hinton vs. Odenheimer, 4 Jones, North Carolina Equity Reps., 407, a creditor brought suit against two persons constituting a partnership. They gave bail for their appearance, according to the law as it then stood; one of them afterwards left the State, and judgment was entered against both partners. The resident partner paid the debt, and the judgment was entered to his use. He then procured a judgment in the same case against the surety on the bail bond of his absconding partner, and issued an execution upon it. The surety filed a bill in equity to restrain the enforcement of the execution ; and the court granted the injunction. On appeal, the appellate court sustained the decree below and said : “There is no principle on which, after satisfaction of the judgment on the partnership debt by one of the partners sued, equity ought to extend or preserve the vitality of the legal security, under the guise of an assignment, so as to charge .the bail of the other partner. The contract of the defendant is with the creditor alone. After he is paid, he has no further interest in the matter.”

A statute of Maryland of 1763, chap. 23, sec. 8, which is in force in this District, provides : “ That where a judgment has been recovered against the principal debtor and sureties, and the judgment has been satisfied by one surety, the creditor shall be compelled to assign the judgment to that surety, and such assignee shall be entitled unto and have in his own name the same execution against the principal debtor, by virtue of such assignment, as the creditor might have had.”

- This statute made a change in what was the common law of the subject before its passage, but it is to be remarked that it applies only to the cases where the payment is made by a surety, and on judgments, not decrees.

And it has been decided (Creager vs. Brengle, 5 Harr. & John., 234), that if the payment is made by the surety to an assignee of the judgment, such assignee has no authority to make a further assignment to the surety; since the act only contemplates payment by the surety to the Original creditor, and an assignment by him.

2nd. The same rule will apply if an attempt is made after the payment of a decree by one of the defendants to have it entered to the use of a third party for the benefit of the surety.

Such would not be the case where the payment is made bona fide by a third person for whose use the judgment is entered; and if Mrs. Barber had paid the $1,780 herself, on her own account, and with the distinct purpose of having the decree, to that extent, entered for her use, such an assignment would have given her a valid title to proceed upon the judgment. But we are satisfied, from an examination of the testimony in connection with all the facts, that this money, like the $1,000 first paid, was really lent or given by Mrs. Barber to her son then, to dispose of as he might see fit as his own property, and without any existing purpose on her part to have it secured to her by an assignment of the decree for her use. The entry, therefore, of the decree to the use of Mrs. Barber was, in our opinion, but-an attempt ■ on the part of John A. Barber to do, by indirection, under the cover of his mother’s name, that which he could not have done without such interposition.

3rd. There is a further point made in the case, on the part of the complainant, arising out of the nature of the transaction which formed the basis of the decree in the case of Strong vs. Barber.

The matter in controversy in that case was an alleged breach of trust on the part of the defendants who, it is said, must therefore be regarded as joint tort-feasors.

The principle that there can be no contribution, at law, enforced by one tort-feasor against the other wrong-doers, is limited by the more modern authorities to cases where the transaction, out of which the judgment arises, involves moral turpitude.

The subject is discussed at length in the case of Bailey vs. Bussing, 28 Conn., 455. In that case contribution was allowed at law where the defendants, though technically tortfeasors, were only such because they were the owners of a stage coach, which was upset by the carelessness of the driver. The absence of any fraud, or moral wrong, exempted the case from the operation of the general rule.

And in Seltz vs. Unna, 6 Wallace, 336, it is said, “ equal contribution to discharge a joint liability is not inequitable even as between wrong-doers, although the law will not, in general, support an action to enforce it where the payments have been unequal.”

It appears in the history of the present case, that John A. Barber had filed a bill in equity, in July, 1879, against his co-defendants, and Herr, Strong and Totten, for contribution, but the bill was dismissed after the defendants had answered or demurred. Whether such a bill could have been sustained if filed after entire payment, is a matter with which we are not concerned. The proceeding by Mrs. Barber to enforce payment to her by execution upon the satisfied decree, for the reasons we have stated, is untenable.

4th. It was insisted upon the part of the defendants, in the argument, that Herr purchased from Dodge and Darneille with full knowledge of the existence of Strong’s decree, and' the nature of the transaction creating that liability, and that, as Dodge and Darneille could not be heard in a court of equity on an application to exonerate their property from contribution to John A. Barber, neither could Herr be considered as standing in a better position than his grantors, or having any equity superior to theirs, and that Herr, therefore does not come into court with clean hands, and can obtain no relief here.

It is true that Herr must be considered as having purchased with perfect knowledge of Strong’s decree ; but it does not follow that that fact places him, to all intents, in the identical position of his grantors. As to the land he pm> chased he is, of course, in no better attitude, and whatever liabilities justly attached to that land at the time of his purchase remain chargeable against it now. But in the same way, whatever immunities can be considered as appertaining to it at the time, still equally surround it in Herr’s possession.

As John A. Barber, one of the joint tort-feasors and defendants under the decree, could not have enforced contribution under the decree out of the lands of Dodge and Darneille while in their possession, neither can he himself, nor another for his benefit, enforce it now when the land has passed into the possession of Herr.

A proprietor of land may have incurred liability by. his acts while proprietor; as, for example, by digging coal or minerals upon it in such wise as to endanger the safety of his neighbor’s property. The purchaser of the land, however, would not be held liable for such antecedent acts of his vendor, although any judgment rendered in respect to those acts, antedating the purchase, would remain binding upon the land in the hands of the purchaser.

So, where, as in a reported case, two fathers agreed to make advances upon a treaty of marriage between their children, one promising to convey a particular farm to the married couple, and the other to advance a sum of money to stock it. After the marriage, the latter paid the money according to his agreement, but the former refused to convey the farm, and sold it to a third person. That purchaser could not be held liable upon the unperformed contract 3 although, if the land had remained in the hands of the father, the court might have decreed specifically that It should be conveyed according to the agreement.

Whatever liability was fixed and binding upon the land of Dodge and Darneille, when it was purchased by Herr, remained a charge upon it after Herr’s purchase but nothing more.

Much stress has been laid upon the alleged hardship of this case. It is but proper that courts should, at times, recall the response which their predecessors have made when this argument has been much pressed upon them as a reason for departing from fixed principles. This is well expressed in the case of Boyd vs. Parker, 43 Md., 201: “The consideration of the hardship of the particular case sometimes leads the court to depart from precedents and make shipwrecks of legal principles.’ To these it is our duty to adhere, and we have no right to depart from them to meet what we may think is the abstract justice of any particular case.”

The decree below is affirmed.  