McGILL, Ch.

(Syllabus by the Court.)

On motion to dismiss the bill.

The bill alleges that on the 17th of February, 1881, the complainant Henry L. Herbert, a resident of New York, purchased a lot of land at Atlanticville, in Monmouth county, which was duly conveyed to him by deed recorded on the same day; that shortly after this purchase and conveyance he built a house upon the land, and, with the exception of three years when he rented it, made it his summer habitation; that in May, 1889, he sold the property to the complainant Joseph H. Devoe for its fair value, $7,250, and conveyed it to him by deed duly recorded during the same month, and thereupon Devoe entered into possession of the land, and yet retains possession of it; that Devoe gave Herbert a mortgage upon the property for $5,000 to secure the payment of part of the purchase money, which is still held by the complainant Herbert, and has not been paid; that on the 22d of September, 1888, before the conveyance to Devoe, the defendant, John W. Herbert, procured an attachment to be issued out of the supreme court against the complainant Henry L. Herbert, under which the property indicated was, three days later,attached; that on the 27th of March, 1889, the auditor in attachment reported upon the claim of the plaintiff in attachment, no ether creditors having applied, basing his report upon the oath of the plaintiff alone, and on the 15th of the following April judgment was entered against Henry L. Herbert for $3,774.87 damages, besides $49.72 cost of suit; that on the 3d day of the following October an order to sell the land was obtained, and during November, 1889, the property was sold to the plaintiff in attachment and the defendant herein for $3,000, and in December of the same year the auditor delivered his deed to the defendant, and the defendant had it recorded; that on April 24, 1890, the defendant, by letter, informed the complainant Henry L. Herbert of his purchase, and thereby gave the complainants the first intimation they had of the attachment; that the complainant had lived upon the land attached during the summer of 1888, and until the 17th of September in that year; that the attachment suit was conducted by the defendant's son, who is an attorney at law of this state, and no notice or intimation of its existence was given to Henry L. Herbert, although the defendant and his son had both visited him at his office in New York, and knew where he could be found. The bill then proceeds in this language: "Your orator, Henry L. Herbert, has had no business legally, or transaction, directly or indirectly, with the defendant, John W. Herbert, for nearly 22 years, during the greater part of which time he has resided in the state of New Jersey, and form any years sold real estate near the residence of said John W. Herbert, and that there is no legal or valid debt due and owing from him to said John W. Herbert; and that said John W. Herbert, about two years ago, admitted to him that he had no legal claim against him, but intimated that your orator, Henry L. Herbert, was under a moral obligation to pay him three small notes aggregating $600, and interest, but at no time claimed, or pretended to claim, that there was any such sum due to him as he demanded." And it then charges that the attachment proceedings were secretly conducted in pursuance of a scheme to obtain judgment against the defendant Henry L. Herbert without affording him an opportunity to defend, and sell the property indicated, and buy it in without the knowledge of neither of the complainants for a grossly inadequate price. The prayer of the bill is that the sale to the defendant may be set aside, and that the deed given by the auditor maybe declared void; that the judgment in attachment may be opened so that the defendant Herbert may plead and defend; and that the complainant may have such other equitable relief as the nature of the case may require. In pursuance of the practice permitted by rule 224, the defendant now moves to dismiss the bill upon three grounds—First, because it does not charge that the debt claimed in the attachment suit is not justly due and owing from Henry L. Herbert to the defendant; and, second, because the complainants fail to show any ground for equitable interference; and, third, because the complainants are misjoined.

Theodore Runyon, for complainants. William H. Vredenburgh, for defendant.

McGILL, Ch., (after stilting the facts as above.) The carefully-guarded allegations of the bill touching the defendant's pretended cause of action against the complainant Herbert make it apparent that the pleader purposely conceals the true status of the claim upon which the attachment was issued. It was within his power, by inspection of the records, or by inquiry of the auditor in attachment, to have been so well informed that he could fully and fairly have stated and impeached it, but instead of so doing, without definitely alleging what the claim was, or how it is impeachable, he contents himself with the general allegation that it was not legal or valid. Such indefiniteness and uncertainty, without excuse, is not good pleading. Moore v. Gamble, 9 N. J. Eq. 246, 250; Story, Eq. Pl. §§ 242,251. But the bill is not objected to upon this ground. The objection is that the bill fails to allege that the claim was not just. The bill alleges that it was not "legal," and not "valid." The word "valid," addressed to a court of equity in the connection in which it is used in the bill, I think, includes the charge that the claim is not of such a character that it can be supported or defended either at law or in equity. Reading between the lines of the bill, it become quite plain that the claim, in fact, i founded upon notes more than 20 years old, recovery upon which is barred at law by the statute of limitations. It is insisted that defense under that statute is unconscionable. Acting in analogy to the rules of law, equity will so far regard the statute as not to suffer the recovery of a claim which would be barred by it at law, unless intervening circumstances of special character should otherwise demand, and such circumstances do not appear by the bill before me. The bill invokes the assistance of this court against a sale under a judgment at law. In such a case, upon an application free from laches and intervening equities, relief will be granted where it appears that the complainant, pending the suit at law, was ignorant of the facts upon which he relied for relief; or where, being a matter of equitable cognizance, the defense would not be received in the suit at law; or where the complainant was prevented from availing himself of the defense by fraud or accident, or by the act of the opposite parties unmixed with negligence or fraud on his part. Glover v. Hedges, 1 N. J. Eq. 113; Quackenbush v. Van Riper, Id. 476-483; Kinney v. Ogden's Adm'r, 3 N. J. Eq. 168; Reeves v. Cooper, 12 N. J.Eq. 223; Powers v. Butler, 4 N.J. Eq. 465; Davis v. Headley, 22 N. J. Eq. 123; Railroad Co. v. Titus, 27 N. J. Eq. 106; Doughty v. Doughty, Id. 315; Holmes v. Steele, 28 N. J. Eq. 176; Dringer v. Receiver, 42 N.J. Eq. 577, 8 Atl. Rep. 811; Mechanics' Nat. Bank v. Burnet Manuf'g Co., 33 N. J. Eq. 486; Brick v. Burr, 19 Atl. Rep. 842.

Equity will relieve where, in ex parte proceedings in foreign attachment, advantage has deliberately been taken of a complainant's absence to obtain ex parte ajudgment upon a claim against which he has a sufficient defense either at law or in equity. In the case of Moore v. Gamble, 9 N. J. Eq. 246, it was alleged by the complainant that shortly after he married he went to New Orleans, leaving his wife at the residence of her mother and stepfather, and while he was away his wife died; that, by the will of his wife's father, her mother, as executrix thereof, was required to support the daughter during her minority, and in consideration of that duty she and her husband agreed not to charge the complainant for his wife's board while he was away. After the wife's death, in violation of their agreement, they attached the complainant's land for his wife's board, and, without notice to him, entered judgment against him, although, at the time of the attachment, they not only had no cause of action because of their agreement, but they had property belonging to him in their possession more than sufficient to pay the sum they claimed. Upon this state of facts Chancellor WILLIAMSON remarked: "Such a case would entitle the com plainant to be relieved against the judgment. For the defendants, under the circumstances, to have taken advantage of the complainant's absence, when he had no opportunity of being heard, or setting up the legal and equitable defense he had against defendant's demands, would have been a gross wrong and fraud. In a case so gross this court would not stop to inquire whether or not the injured party might possibly get relief upon an application to open the judgment. The propriety of affording relief in such a case would be so manifest, and could be afforded with so much facility by this court, there could be no hesitation in granting it." In the case of Tomkins v. Tomkins, 11 N. J. Eq. 512, in which relief was sought from a judgment in foreign attachment the same chancellor said: "In a case, like the present, of foreign attachment, where the proceeding is in rem, and the judgment is obtained without the knowledge of the defendant, and the proceedings are all necessarily ex parte, it would be hard, indeed, if this court would not interfere to protect a party against the fraud of the plaintiff. The propriety of this court's interfering in such cases is too obvious to require its being vindicated."

The case presented in the bill now considered shows, not only that an advantage was taken of the defendant's absence to obtain a judgment in attachment upon a stale and invalid claim, but that such absence was deliberately waited for, and the proceedings in attachment so timed and secretly conducted that not only the judgment was had without opportunity for defense, but it was so executed that the defendant became the owner of a valuable property for an inadequate price, if it be assumed that the claim upon which his judgment is founded can be supported, or for nothing, if that claim is wholly invalid as the complainants insist. It would be monstrous if. equity could not give relief in such a case. This is not like the case of Eberhart v. Gilchrist, 11 N. J. Eq. 167. where there was no allegation that the ex parte judgment in attachment was the product of a fraudulent contrivance.

The terms upon which relief will be afforded must be equitable. If, under circumstances hereafter developed, it shall be made to appear that the complainant's defense to the claim, upon which judgment is founded, is unconscionable, though ample under the strict rules of law, the defendant's legal advantage with respect to it will not be disturbed. It is, however, ordinarily not unconscionable to ask the benefit of the statute of limitations from a court of equity, and it would hardly be deemed unconscionable or unjust to ask it when it might have been had at law, but for the artifice of the defendant. The force of the allegation that the claim of the defendant was not legal or valid is not then weakened by its appearing that the defense to it was the statute of limitations. This court cannot set aside the judgment of the common-law courts, and give leave to plead in the suit in which it was recovered. Its decree will operate upon the defendant and the land, and not upon the court. Barnesley v. Powel, 1 Ves. Sr. 285; 3 Pom. Eq. Jur. § 1360; 2 Story, Eq. Jur.873. In such a case as this, where the judgment at law has been properly executed, and property sold to the defendant, the relief granted will be to compel a reconveyance upon the complainant's doing that which in good conscience he should do. The attainable object of this suit appears, then, to be a reconveyance of the land which the defendant holds. The attitude of the bill is that nothing is to be rendered for this reconveyance. In this light the question as to the misjoinder of the complainants may be considered. Both the' complainants have a common interest in the attainable object of the suit. Though their interests are not co-extensive, they are not inconsistent and conflicting. They are both supported by the same equity against the defendant, and his defense against a suit by one is his defense against a suit by the other. In this situation the complainants are not misjoined. Story, Eq. Pl. §§ 279, 285; Young v.Young,45 N.J. Eq. 27, 36, 16 Atl. Pep. 921. The motion to dismiss must be denied, with costs.