The Chancellor.
I agree with the vice chancellor that the allegations of fraud and unfairness on the part of Perrin, as charged in the complainant’s bill, are not sustained by the proofs in the case. It is not at all improbable, that the parties to the arrangement of 1827 may have had some loose conversation, prior to the consummation of the agreement, upon the subject of giving back the release after the trial, for the purpose of restoring them to their previous rights under the old judgment. But no one who had any correct ideas of legal proceedings could for a moment have supposed that a release to a witness, executed under an agreement that it sh'ould be delivered up by him after the [141]*141trial, would restore his competency; or that a judgment, when once discharged by the execution and delivery of a valid release to the judgment debtor, could be restored ao-ain, so as to continue the lien thereof on the lands of third persons, merely by delivering up such release to the complainant. And as the arrangement was finally consummated, by the execution of the written instruments, under the advice and in the presence of the counsel in the cause, it is wholly incredible to suppose that the papers were executed and delivered under any such agreement. Besides it appears from the evidence that, at the time when the bond and warrant were executed and delivered, the conditions upon which such judgment was to be enforced were put into the form of a written stipulation, signed by Perrin and delivered to the parties who had executed the bond and warrant, or to some of them for the benefit of all. Whatever, therefore, had passed between the parties or any of them by parol, previous to that time, as to the conditions upon which the bond and warrant were to be enforced, w-as merged in this written agreement. And parol evidence as to the previous declarations of any of the parties, showing a different agreement, must be laid entirely out of the question in the decision of the cause.
Again ; the execution of a release, to restore the competency of a witness, under a secret agreement with him that the release should be given up and cancelled after the trial, for the purpose of restoring the parties to their former situation, would be a fraud upon the adverse party and an imposition upon the court. No party to such a fraudulent agreement can therefore come into court, as a complainant, to be relieved because his adversary has not carried such an agreement into effect. This disposes of so much of the complainant’s bill as seeks relief on the ground of the alleged agreement to take Back the release and deliver up the bond and warrant after the trial should have taken place. The giving of the note for two thirds of the judgment, long after that trial, and after the complainant knew that a judgment had been entered on the bond and warrant, was also a voluntary waiver of the alleged agreement to deliver them [142]*142up, even if such an agreement would be legal and had actually been made.
From the evidence there is not the least reason for believing there was any intent to impose upon the complainant, by inducing him to suppose the judgment was a lien upon his lands when Perrin knew it was otherwise. The complainant’s counsel is undoubtedly right in supposing that the first judgment was not in fact a legal lien upon the complainant’s land, in 1827. It ceased to be a lien as against bona fide purchasers at the expiration of ten years from the docketing thereof, even if they had actual uoticc of its existence, unless they took their title subject to the payment thereof as between them and the judgment debtor, or with a view to defeat the lien of the ci editor. (5 Paige’s Rep. 493.) And it made no difference as to the continuance of the lien of the judgment, against bona fide purchasers, that the nature of the judgment was such that the collection could not be enforced within the first ten years after the docketing thereof. The party should have taken a mortgage upon the lands of Stone, as a security against the failure of a doubtful title, instead of a judgment the lien of which might cease before the question of title was finally settled. Whether the judgment was not in 1827 a subsisting lien upon the two lots quitclaimed by O. Stone, is a matter of more doubt. If the whole transaction in relation to those two lots was not a covinous proceeding to defraud his father’s creditors, as it most probably was, the title had passed out of O. Stone by the sale under the judgment against him. But if the sale under that judgment as well as the original transfer from the father was merely fictitious, the lien oí Perrin’s judgment never was divested. O. Stone never having paid anything, and having taken back the note given by him to his father for the consideration or pretended consideration of the deed, he was not a bona fide purchaser within the intent and meaning of the statute limiting the lien of the judgment to ten years. Injustice has been done both to Crosier and Chubb in these transactions, under a mistake of their legal rights as to the lien of the judgment and as to the property which should be first applied to satisfy the same if the lien [143]*143still continued as to all the lands, of which S. Stone was the owner at the time of docketing that judgment in -1812. 1 am inclined to think, however, that Perrin was equally ignorant of his legal rights with Crosier and Chubb ; that if there was any fraud in the case it was a fraud and imposition practised upon all three of them by Orín Stone and his father, to save the lands of the latter from the lien'of the judgment; that in 1827 O. Stone knew that the two lots conveyed to him without consideration ought in justice to-be first applied to satisfy the judgment against his father; and that he intentionally concealed that fact from Perrin as well as from Crosier and Chubb, for the purpose of inducing the two last to join him in the new judgment and to obtain a release of the judgment which was then a subsisting lien upon the two lots before referred to. It is probable, however, that he-too was ignorant that the lien of the judgment was at an end as to bona fide purchasers ; as the counsel employed by the Stones to defend the suit brought against Richardson made the same mistake as to the question of law.
The new judgment W'as not without consideration; as the old one was still valid as against S. Stone, and against all the lands formerly owned by him, not then in the hands of bona fide purchasers for a valuable consideration. And if this court can relieve against a mistake in law in any case where the defendant has been guilty of no fraud or unfair practice, which is at least very doubtful, it must be in a case in which the defendant has in reality lost nothing whatever by the mistake, and where the parties can be restored to the same situation, substantially, in which they were at the time the mistake happened. Here the mistake was clearly one of law, and not a mere mistake of fact. The complainant and Chubb had both received their deeds in 1816. If they had not mistaken the law, therefore, they must have known that a judgment against their grantor was not a subsisting lien upon their lands in 1827, even if they had not been apprized by the original stipulation, which was present when the second bond and warrant were executed, that the original judgment w'as taken as early as 1812. Neither is it possible in [144]*144this case to restore the defendants to the same situation in which Perrin stood, in reference to his rights, before this mistake in law occurred. The first judgment being released, the lien thereof was gone as against the two lots conveyed to O.
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The Chancellor.
I agree with the vice chancellor that the allegations of fraud and unfairness on the part of Perrin, as charged in the complainant’s bill, are not sustained by the proofs in the case. It is not at all improbable, that the parties to the arrangement of 1827 may have had some loose conversation, prior to the consummation of the agreement, upon the subject of giving back the release after the trial, for the purpose of restoring them to their previous rights under the old judgment. But no one who had any correct ideas of legal proceedings could for a moment have supposed that a release to a witness, executed under an agreement that it sh'ould be delivered up by him after the [141]*141trial, would restore his competency; or that a judgment, when once discharged by the execution and delivery of a valid release to the judgment debtor, could be restored ao-ain, so as to continue the lien thereof on the lands of third persons, merely by delivering up such release to the complainant. And as the arrangement was finally consummated, by the execution of the written instruments, under the advice and in the presence of the counsel in the cause, it is wholly incredible to suppose that the papers were executed and delivered under any such agreement. Besides it appears from the evidence that, at the time when the bond and warrant were executed and delivered, the conditions upon which such judgment was to be enforced were put into the form of a written stipulation, signed by Perrin and delivered to the parties who had executed the bond and warrant, or to some of them for the benefit of all. Whatever, therefore, had passed between the parties or any of them by parol, previous to that time, as to the conditions upon which the bond and warrant were to be enforced, w-as merged in this written agreement. And parol evidence as to the previous declarations of any of the parties, showing a different agreement, must be laid entirely out of the question in the decision of the cause.
Again ; the execution of a release, to restore the competency of a witness, under a secret agreement with him that the release should be given up and cancelled after the trial, for the purpose of restoring the parties to their former situation, would be a fraud upon the adverse party and an imposition upon the court. No party to such a fraudulent agreement can therefore come into court, as a complainant, to be relieved because his adversary has not carried such an agreement into effect. This disposes of so much of the complainant’s bill as seeks relief on the ground of the alleged agreement to take Back the release and deliver up the bond and warrant after the trial should have taken place. The giving of the note for two thirds of the judgment, long after that trial, and after the complainant knew that a judgment had been entered on the bond and warrant, was also a voluntary waiver of the alleged agreement to deliver them [142]*142up, even if such an agreement would be legal and had actually been made.
From the evidence there is not the least reason for believing there was any intent to impose upon the complainant, by inducing him to suppose the judgment was a lien upon his lands when Perrin knew it was otherwise. The complainant’s counsel is undoubtedly right in supposing that the first judgment was not in fact a legal lien upon the complainant’s land, in 1827. It ceased to be a lien as against bona fide purchasers at the expiration of ten years from the docketing thereof, even if they had actual uoticc of its existence, unless they took their title subject to the payment thereof as between them and the judgment debtor, or with a view to defeat the lien of the ci editor. (5 Paige’s Rep. 493.) And it made no difference as to the continuance of the lien of the judgment, against bona fide purchasers, that the nature of the judgment was such that the collection could not be enforced within the first ten years after the docketing thereof. The party should have taken a mortgage upon the lands of Stone, as a security against the failure of a doubtful title, instead of a judgment the lien of which might cease before the question of title was finally settled. Whether the judgment was not in 1827 a subsisting lien upon the two lots quitclaimed by O. Stone, is a matter of more doubt. If the whole transaction in relation to those two lots was not a covinous proceeding to defraud his father’s creditors, as it most probably was, the title had passed out of O. Stone by the sale under the judgment against him. But if the sale under that judgment as well as the original transfer from the father was merely fictitious, the lien oí Perrin’s judgment never was divested. O. Stone never having paid anything, and having taken back the note given by him to his father for the consideration or pretended consideration of the deed, he was not a bona fide purchaser within the intent and meaning of the statute limiting the lien of the judgment to ten years. Injustice has been done both to Crosier and Chubb in these transactions, under a mistake of their legal rights as to the lien of the judgment and as to the property which should be first applied to satisfy the same if the lien [143]*143still continued as to all the lands, of which S. Stone was the owner at the time of docketing that judgment in -1812. 1 am inclined to think, however, that Perrin was equally ignorant of his legal rights with Crosier and Chubb ; that if there was any fraud in the case it was a fraud and imposition practised upon all three of them by Orín Stone and his father, to save the lands of the latter from the lien'of the judgment; that in 1827 O. Stone knew that the two lots conveyed to him without consideration ought in justice to-be first applied to satisfy the judgment against his father; and that he intentionally concealed that fact from Perrin as well as from Crosier and Chubb, for the purpose of inducing the two last to join him in the new judgment and to obtain a release of the judgment which was then a subsisting lien upon the two lots before referred to. It is probable, however, that he-too was ignorant that the lien of the judgment was at an end as to bona fide purchasers ; as the counsel employed by the Stones to defend the suit brought against Richardson made the same mistake as to the question of law.
The new judgment W'as not without consideration; as the old one was still valid as against S. Stone, and against all the lands formerly owned by him, not then in the hands of bona fide purchasers for a valuable consideration. And if this court can relieve against a mistake in law in any case where the defendant has been guilty of no fraud or unfair practice, which is at least very doubtful, it must be in a case in which the defendant has in reality lost nothing whatever by the mistake, and where the parties can be restored to the same situation, substantially, in which they were at the time the mistake happened. Here the mistake was clearly one of law, and not a mere mistake of fact. The complainant and Chubb had both received their deeds in 1816. If they had not mistaken the law, therefore, they must have known that a judgment against their grantor was not a subsisting lien upon their lands in 1827, even if they had not been apprized by the original stipulation, which was present when the second bond and warrant were executed, that the original judgment w'as taken as early as 1812. Neither is it possible in [144]*144this case to restore the defendants to the same situation in which Perrin stood, in reference to his rights, before this mistake in law occurred. The first judgment being released, the lien thereof was gone as against the two lots conveyed to O. Stone without any consideration paid therefor. And upon the faith of the arrangement made with the complainant and others, in 1827, Perrin lost the advantage of a compromise with the adverse claimants as to his part of the lot, and subjected himself to the costs of a new litigation against his grantees ; as those who had given the second judgment insisted upon a further litigation for their benefit. Then was the time when they should have put themselves upon their legal or equitable rights, if they meant to insist upon any unfairness or want of consideration in the second judgment, instead of making a new arrangement to get one of their number released from that judgment.
I lay out of view in this case the objection of variance between the contract as set out in the bill and the one proved. For if that was the only objection to a decree in favor of the complainant, the bill should have been dismissed without prejudice to his legal and equitable rights in any future litigation ; instead of a general decree, which is conclusive upon the rights of the parties both at law and in equity. But for the reasons before stated I think the general decree in favor of the defendants was right. The same must therefore be affirmed, with costs.