Handy, J.,
delivered the opinion of the court.
The original bill in this case wms filed by the defendant in error, to enjoin certain proceedings in the Probate Courts of Copiah and Hinds counties, in relation to some town lots in the city of Jackson, alleged to be the property of the defendant in error, and in his possession; which proceedings were a cloud upon his title. The parties defendant to the bill were Edwin Moody, George Work, administrator de bonis non of John Shields, deceased, and Sarah Shields, the widow of John Shields.
[618]*618The bill states, in substance, that Harper purchased the lots in February, 1844, at sheriff’s sale, made under an execution against John Shields and others; that Moody had previously purchased the same lots at execution sale, made by the sheriff under judgments of junior date and lien to that under which Harper purchased; that Moody, being in possession, Harper sued him in ejectment, and recovered judgment against,him, which was affirmed in this court; that on the 20th April, 1854, Moody purchased from one Susan P. Hill, who claimed to be the only heir of John Shields, all her right and title to these lots, having previously, on the 18th February, 1840, purchased from Sarah Shields, the widow, all her right, title, and interest in and to the lots, and received from said parties conveyances of their interests; that on the 22d April, 1854, a bill was filed in the Superior Court of Chancery, by Moody, and Susan P. Hill, claiming as heir, and Sarah Shields, claiming as widow of John Shields, against Harper, claiming title to the lots, alleging that the execution under which he purchased was void, and his purchase fraudulent; because the execution under which he purchased had been satisfied, and because the judgment had not been revived against Shields; and praying an injunction to restrain the issuing of the writ of possession in favor of Harper, upon the judgment in ejectment recovered by him; to which bill a demurrer was filed, which was sustained by this court, and the bill dismissed; and this is relied on as a final adjudication in favor of the title of Harper, and against the claim of the complainants in that bill; that on the 16th July, 1856, Moody surrendered possession to Harper, who has since continued in possession.
The bill further charges, that at the August term, 1856, of the Court’ of Probates of Copiah county, Moody and the defendant Work, for the purpose of creating clouds and incumbrances on the title of Harper, and of harassing him, fraudulently procured said Work to be appointed administrator de bonis non of John Shields, Moody becoming surety on his bond ; and Work immediately filed a petition in that court for the sale of the said town lots, as the property of John Shields, for the alleged purpose of paying a pretended debt of said Moody, for about $5000, against the estate, which claim is alleged to be founded on a claim for $1700 44, due by John Shields on the 26th April, 1839, and is alleged to be [619]*619fictitious, oi’ at least long since barred by the Statute of Limitations, and the bill calls for the production of the evidence of the debt; that, for the same fraudulent purpose, Moody, Work, and Sarah Shields filed, in the Probate Court of Hinds county, at October term, 1856, an application, in the name of Sarah Shields, for the allotment of her dower in said lots,'Work waiving the issuance of citation as administrator of John Shields, and acknowledging notice; and thus secretly obtained an-order for the'allotment of her dower, without notice to Harper, notwithstanding Sarah Shields had conveyed her interest in the lots to Moody in the year 1840; that said claim of dower would at all events be barred by the Statute of Limitations, more than sixteen years having elapsed since the death of John Shields; and Moody’s claim thereupon is also barred by the statute, in relation to possessory actions. The prayer is, that these proceedings in the Courts of Probates be set aside as fraudulent, and as clouds against Harper’s title, and that all further proceedings thereon be enjoined.
In the progress of the cause, Moody and Work demurred to the relief prayed in the bill, on the ground that the matter was exclusively cognizable in the Probate Courts, and beyond the jurisdiction of a court of chancery. They answered the other allegations of the bill, denying the charges of fraud and the title of Harper, and insisting that the dismissal of the bill in chancery, filed by Moody, Hill, and Shields, is no’ bar to the defendants’ setting up a valid title to the lots, because Susan P. Hill and Sarah Shields were mere nominal parties to that bill. Moody’s answer was also made a cross-bill, and he afterwards filed an amended answer and cross-bill, in which he claims relief against Harper, upon the following grounds : 1st. That the judgment under which Harper purchased was void, because after signing ,the forthcoming bond on which it was -founded, and before it was returned forfeited, Mayson, the principal, died. 2d. That Shields had died several years before the sale under the execution, and after administration granted on his estate, and there was no revival of the judgment against his administrator or heir, and the judgment was never probated or presented to his administrator. 3d. That Harper had no interest in the judgment, and had no authority to control it, being neither agent nor attorney for Rain, the plaintiff; and, without his know[620]*620ledge, that Harper procured the execution to be issued, not for the purpose of collecting the money, but for the purpose of purchasing the lots at a sacrifice, and fraudulently to deprive Moody of them; and that he accordingly purchased them at sheriff’s sale for ten dollars each, for his private benefit and as a speculation; and that Moody has discovered these facts since the decision of the suits at law and in equity, between the parties in relation to the lots. 4th. Admitting that since the institution of this suit, Harper had recovered, in an action at law, the sum of $2811, for the rents and profits of the lots, but insists that the same was fraudulent, because Moody had a good set-off thereto for valuable improvements put upon the premises in ignorance of Harper’s claim, but was prevented, by Harper’s violation of an agreement in relation to the trial of that suit, from availing himself of his just claim; that he also paid taxes on the property, and paid Mrs. Shields about $400 for her dower interest, and Susan P. "Hill $80 for her interest, and the sheriff about $460 for the purchase-money, at the execution sale at which Moody purchased. He claims these sums as a set-off to the judgment for mesne profits, and prays that the title of Harper be declared void, that the judgments in ejectment, and for mesne profits be sot aside, and that Moody be restored to possession of the lots; and if mistaken in this, that he be allowed to set-off his claim for improvements and expenditures against the judgment for mesne profits.
To these cross-bills Harper answered, insisting that the dismissal of the bill in chancery of Moody, Hill, and Shields, is a final adjudication against the title of Moody here set up, and conclusive against him; denying that he had not authority to issue the exécution under which he purchased, and setting forth the facts of his retainer in the matter; that he was an attorney-at-law, and agreed with the agent of Hugh Rain (who claimed to be the assignee of John Rain, and was the holder of the attorney’s receipt given to John Rain for the collection of the debt before the institution of the suit), that he should proceed to collect the money by execution, and that he agreed to “ take a conditional fee of one-half of what could be made out of the judgment;” and subsequently to the sale under the execution, that the assignment to Hugh Rain was recognized by John Rain, and that Harper also had the authority of the attorney who [621]*621obtained the judgment for the management of the execution; that the purchase was made for the joint benefit of Harper and Hugh Rain, the assignee, who fully sanctioned it, and that it was the only means of satisfying the judgment. He denies that the judgment for mesne profits was obtained by fraud or by the violation of any agreement with Moody; and states.that that matter was considered upon the respective affidavits of the parties offered upon a motion for a new trial in that cause, which motion was overruled in the Circuit Court, and the judgment for mesne profits affirmed in this court, which is relied on as conclusive against the claim of Moody for improvements here set up ; he further states that Moody had notice of his title before the alleged improvements and expenditures were made. He insists that Sarah Shields and Susan P. Hill have no interest in the lots, having conveyed their interests to Moody.
The court overruled the demurrer to the original bill, dismissed the cross-bills, and decreed a perpetual injunction against the proceedings of Work and in the name of Sarah Shields in the Courts of Probates.
The first question naturally arising in the order of the proceedings in this record, and that which we will first consider, is the error assigned upon the decree overruling the demurrer to the original bill. This assignment of error not only presents the question of the propriety of the decision upon the demurrer, but it also involves the question of the correctness of the final decree granting the relief prayed for in the bill.
< The bill prays an injunction, first, against the proceedings in the Probate Court of Copiah county, taken by Work, as administrator of Shields, for the sale of the lots in controversy; and, secondly, against the application in the name of Sarah Shields in the Probate Court of Hinds county. As to the proceedings in Copiah county, it alleges that the debt due to Moody, which is set up as rendering it necessary to sell the real estate of Shields, is fictitious, and calls for the production of the evidence of it. It is not exhibited'with the answer. But the bill states its date and amount, and alleges that it is barred by the Statute of Limitations. This is admitted by the demurrer. It therefore appears that this application to sell the lots in controversy, is made for the purpose of paying a debt [622]*622which cannot be legally asserted against the estate of John Shields, and to which the administrator could not properly apply the proceeds of the sale, if the lots were sold. It is clear that no such order of sale should be granted by the court; for it would be to order the sale of the land for a vain and idle purpose. The sale could only have the effect to create a cloud upon the title of Harper ; and the circumstances of the application well warrant the conclusion that such was its object, and not the payment of the just and legal claims against the estate of John Shields. As the proceeding, if consummated, would have that effect, it was proper for the defendant in error to arrest it, and to prevent the jurisdiction of the Probate Court from being abused to his prejudice, by the aid of equity enjoining its consummation. It was clearly a cloud upon his title, inequitable in its character, and within the remedial power of a court of equity. And although it was a case in which the Court of Probates ought not to have ordered the sale, yet the appellee had no right to contest that matter in that court, being a stranger to the jurisdiction; and he had no remedy but in a court of equity, whose jurisdiction in such a case is clear and ample.
As to the application for the allotment of dower in the Hinds Probate C'ourt, in Octobex’, 1856, the bill shows that Sarah Shields had conveyed her right of dower to Moody in the year 1840, and sets up as a bar to the petition, the Statute of Limitations in relation to promissory actions.' It thus appears- that the widow had failed to assert her claim of dower for about sixteen yeax’s; and her claim is thereby barred by the statute. Smedes & Marshall Ch. Rep. 494; Berrien v. Conner, 1 Harrison (N. J.) 107; Tuttle v. Wilson, 10 Ohio, 24.
But, x-egarding this application as made at the instance of Moody and for his benefit, as, under the circumstances, it must be, it is to be taken even with'less favor, as he did not avail himself of it by way of defence of the action of ejectment, nor in the bill in chancery filed by him, though he then had a conveyance of her interest. In the latter suit, he recognizes the right to the lots as still existing in part in her, and in his cross-bill in this case he admits his purchase of her interest, and claims compensation for what he paid for her dower interest conveyed to him.
Under all these circuxnstances, the application for dower was a [623]*623mere cloud upon the title, which it was within the power of a court of equity to remove.
For these reasons we think there was no error in overruling the demurrer.
The next question is, whether the court erred in dismissing the cross-bills of the plaintiff in error ? In determining this question, we have to consider the several grounds set up in these cross-bills for relief, either in whole or in part, against the claim and title of the defendant in error.
In the first place, it is insisted in these cross-bills that the execution under which Harper purchased, the sheriff’s deed to him, and the judgments in ejectment and for mesne profits, should be declared void and annulled,' 1st, because Mayson, the principal obligor in the forthcoming bond on which the judgmentwas rendered, was dead at the time of return of forfeiture of the bond, and the judgment was void as to him ; and being a joint judgment against him and Shields and Craft, the other obligors, it was also void as to them; and hence that the execution, sheriff’s sale, and title thereby acquired by Harper, are without any foundation in law, and utterly void.
The force of this objection depends upon the mode in which judgments on forfeited forthcoming bonds become such, and have the force and .effect of judgments under our laws. Upon the forfeiture of such a bond, the sheriff is required to make return of it, on the return day, to the court from which it issued, with the execution; and thereupon it shall have the force and effect of a judgment. There is no judgment rendered by the court in terms, nor entered upon its records, against the parties by name, as in the case of ordinary judgments against parties by the rules of proceeding at common law; but the return has merely the force and effect of a judgment. It can only have such effect upon parties against whom it may legally operate; and, though it may not have legal effect as a judgment, against one of the obligors by reason of his death, that . would not prevent it from taking effect as a judgment against another obligor, who was liable upon it. There being no express judgment, it would be taken to have effect upon parties against whom it might legally operate, and to be inoperative as to others against whom it could not legally take effect; and as to the latter [624]*624persons, the judgment being inoperative in case of their death, the matter would stand as in the case of an ordinary suit where one of several joint defendants had died pending the suit, and the proceeding would be considered as dismissed as to the deceased party. In cases like this, no judgment is rendered except by operation of law; and, of course, no judgment can be considered as gendered except such as might be legally rendered. Hence, in judgments rendered on forthcoming bonds under our law's, it does not vitiate a judgment, which passes by operation of law upon the return of a forfeited forthcoming bond against one of the obligors, that another is dead and incapable of suffering judgment. In such case there is no positive judgment rendered; and there being no positive proceeding in court, and no express judicial action, there can be no opportunity for the plaintiff to dismiss the proceeding against the deceased obligor, as in ordinary suits, and great injury might arise to plaintiffs, who are ignorant of the death of the obligor, and even of the return of the bond.
We, therefore, think that the rule applicable to ordinary suits and judgments cannot be justly applied to cases of this sort, and that it must be taken that no judgment was rendered against the deceased party.
The second objection taken to the execution and the title derived from the sale under it is, that the execution w'as irregular as to Shields, who was dead before it was issued or bore teste ; and it never having been revived by scire facias, a sale under it was irregular as to Harper, who had it issued and acted as attorney for the plaintiff, and conferred no title on him. Against this position, the defendant insists that the judgment at law and the decree dismissing the bill filed by Moody in which this ground of relief is set up, are conclusive, and that the plaintiff in error could not be heard in his cross-bill to raise this objection again.
It is urged by the counsel for the plaintiff in error, that it was first brought to light by these cross-bills that Harper did not make the purchase for himself, but for the plaintiff in execution; and as it now' appears that he was purchasing for a party who is chargeable with all the irregularities of the execution, that the previous decisions cannot affect his equitable rights under this newly disclosed state of facts. But the rule charging parties with the consequences [625]*625of irregularities in executions, is as stringent against attorneys who issue and control the executions and purchase at sales made under them, as it is against the plaintiffs'who become purchasers. Here the record of the execution under which Harper purchased, contained an indorsement showing that he had the control of it; and the bill filed by Moody, Shields, and Hill showed that the execution was issued by Harper, and the return upon it shows that he purchased the property and paid the costs. The previous bill, therefore, fully showed that he was the active agent and attorney for the plaintiff in the execution. That case presented the same objection to the regularity of the execution, and sought \relief against the title derived from the sale under it, upon the same ground of irregularity as is here raised; and the objection was as available upon the facts stated in that bill and appearing by the records to which it referred, as upon the allegations of these cross-bills. Yet the irregularity was held to be insufficient to vitiate the title of Harper, and the bill was dismissed. Harper v. Hill et al. 35 Miss. 63. It cannot, therefore, be said that that bill was founded on a different state of facts, as it regards the objection under consideration, from those here presented ; and upon well-settled principle, we consider that decision as a conclusive adjudication of this objection, which the parties are not to be permitted to relitigate by adducing new arguments in support of it, or by relying on a state of facts not materially different from those there presented. Stewart et al. v. Stebbins, 30 Miss. 66; Manly v. Kidd, 33 Ib. 141; Moss v. Davidson, 1 S. & M. 144.
It will not be permitted to the plaintiff in error now to say, that Shields and Hill were mere nominal parties to that bill; for it is plain that a substantial right was claimed therein in their behalf, one as the widow and the other as the heir of John Shields, suing conjointly with Moody; and there is much greater reason for regarding Sarah Shields as a nominal party in the state of facts presented in this case than in that; for it is here shown that she had conveyed her interest in the property to Moody by regular deed in the year 1840.
The next ground of relief set up in the cross-bills, is the claim of Moody for improvements put upon the lots, and expenditures made on account of them. This is resisted, by the defendant in [626]*626error on the ground that it is concluded by the two judgments at law. and the decree dismissing the bill in chancery.
In regard to the judgment in ejectment, it does not appear that any effort was made by Moody to avail himself of this claim. It was entirely competent for him to do so in that suit, not merely to the extent of setting off so much of his claim as would cover the damages to be recovered- by the plaintiff for rents and profits, as is suggested by counsel for the plaintiff in error, but to the full extent of the value of such improvements as were allowable as a charge against the premises. Hutch. Code, 856, Art. 13, §§ 1, 2, 3. No excuse is shown, in these cross-bills, for the failure to assert the claim in that action; and upon plain principle, he cannot afterwards come into equity to assert it.
As to the action for mesne profits, the cross-bill alleges that it was set up. in that case; but by reason of the fraudulent conduct of Harper in forcing on the trial, in the absence of Moody and of his witnesses, to prove the claim, and in violation of an agreement made between them in relation to setting a day for the trial, that he was prevented from establishing-his claim. This charge of-fraudulent conduct and violation of agreement, is denied by Harper in his answer to the cross-bill; and it appears by the record of the suit, that it was made the ground of a motion by Moody for a new trial of the case, and was held by the court to be insufficient or not sustained, and the motion was overruled. That was an adjudication of the matter by a competent tribunal, and must be taken as conclusive. It does not appear that the claim for expenditures on account of the property now set up, was asserted in that suit. That was certainly the occasion on which'it should have been brought forward; and having failed then to do so, the plaintiff in error cannot afterwards come into a court of equity and seek relief on that ground. Again, in the bill in equity filed by Moody and others, no claim is asserted for these improvements and expenditures. Assuredly, under these circumstances, he cannot now be allowed to bring forward his claim and set it up by cross-bill, asking relief on account of it against the defendant in error.
We do not deem it necessary to express any opinion upon the point, whether, if the previous judgments and decree had not taken .place, Moody could have asserted and maintained his claim for im[627]*627provements and expenditures, upon a bill in equity filed simply for that purpose. It is sufficient to decide that, under the circumstances of the case, he cannot now assert such a claim either for affirmative relief or as a defence to the relief sought in the original bill in this case.
It is urged by counsel that, although he might not have been allowed to file his bill in equity and set up this claim, considering the previous litigation, yet he is not thereby debarred of making his defence on that ground and claiming the benefit of his equity in a suit commenced by Harper, and involving his title to the property and his equitable rights growing out of it; and this on the principle that he who seeks equity must do equity. But this claim is not a defence to the relief sought by the original bill, but is wholly independent of it. The whole scope of the bill is to remove the clouds upon the title of Harper. This claim is for allowance for improvements and expenditures upon the property. It does not touch the special relief sought by the bill, but sets up an independent claim for relief against the property by way of cross-bill. It is, therefore, a cross-bill purely for relief, and not for defence against the relief prayed in the original bill; and it cannot be maintained except upon the principle which would have entitled Moody to set it up by original bill. As he is precluded under the circumstances from setting it up in that way, it was not proper to be set up by way of cross-bill for relief as it is here asserted.
The next ground of relief set up in the cross-bills is, that Harper had no interest in the execution under which he purchased, and that he procured it to be issued without authority, and to be used for his own benefit in the purchase of the lots and in fraud of the rights of Moody, and that he accordingly purchased them for a trifling sum, which has never been paid to the plaintiff in the execution ; and that these facts have been discovered by him since the previous litigation. The want of authority to act in the enforcement of the execution is fully denied by the answer to the cross-bill ; and it is stated that the purchase was made for the joint benefit of Harper and the plaintiff’s assignee, in pursuance of an agreement previously made between them, that Harper should attend to the collection of the money upon the judgment, and should receive one-half of what should be made upon it.
[628]*628It appears to be established by the evidence, that Harper was engaged as an attorney-at-law to attend to the collection of the money upon the judgment, by Hugh Rain, who was the assignee of the judgment previous to the retainer, and was the holder of the receipt given by the original attorneys who brought the suit upon the claim. That was prima facie evidence of the assignment to Hugh Rain. But the assignment is sufficiently proved otherwise. A paper is shown, signed by J. Rain, dated 16th January, 1846, stating that he had assigned this claim to Hugh Rain, referring t,o it as in the hands of Harper for collection, and requesting Harper to make payment to Hugh Rain. This paper does not purport to be the assignment which he had made to Hugh Rain, but refers to the assignment as having been previously made; and it is a clear recognition of the authority of Harper to act in the matter. The particulars of his engagement in the business are fully and satisfactorily shown by the evidence ; and it does not appear that the party to whom he is responsible denies his authority or disavows his acts, or in anywise complains of his proceedings.
This ground of relief is, therefore, not maintained. And we are of opinion that the cross-bills were properly dismissed.
The next question to be considered is, whether the title of Harper, as shown in his answers to the cross-bills, is void for champerty.
This point is raised upon the statement in the answer of Harper, that he undertook the collection of the money upon the judgment, under an agreement with the plaintiff’s assignee that he was to receive as “ a conditional fee one-half of what should be made out of the judgment,” and that he purchased the lots upon that agreement, there being no other means of making the money.
It is objected that this ground of defence against the title of Harper cannot be sustained as it is here presented for consideration ; and that as it was not set up in the previous litigation, and especially in the bill in equity, it cannot be allowed here. To meet this objection, the third cross-bill states, that it was not discovered until the termination of the previous suits. But this cross-bill was not allowed to be filed, and was rejected by the court below when offered. No error is assigned on that ground, and the statements [629]*629of that cross-bill cannot, therefore, be considered as affecting the case, and the question must be determined without regard to them.
For the reasons above stated, — there being nothing to excuse the failure to make the objection in the previous suits, — the plaintiff in error is not entitled now to assail the title of Harper on this ground, by way of defence to a bill filed by him for a collateral purpose in relation to the lots, and after his title had been declared valid against the objections which had been raised to it in the several previous suits.
But if the question be regarded as properly presented, the facts of this ease do not constitute champerty. That offence is defined to be “ a bargain with a plaintiff or defendant to divide the land or other matter sued for between them, if they prevail at law, the champertor undertaking to carry on the suit at his own expense.” 1 Bouv. Law. Diet. 250; title Champerty, and cases there cited. In order to bring an agreement within the condemnation of this rule, two things are necessary. 1st. That it be made before the commencement of the suit, and be the moving cause of its commencement. 2d. That it be agreed by the party undertaking it, that he will carry it on at his own expense. Upon both of these points, the present case is not within the rule. For, 1st, the agreement was not made until after the judgment proposed to be collected was rendered. It did not necessarily contemplate the institution of any suit. The object was to collect the amount of the judgment. The plaintiff’s rights were fixed by law; and though the enforcement of them might be attended with trouble and difficulty, the duty simply was to enforce the rights of the plaintiff as fixed by the judgment, and not to institute suits, unless the plaintiff’s rights should render such a course necessary. The duty of the attorney was, to have the property of the defendant, liable- to the execution, sold under it; and the legal presumption would be, that no litigation would be necessary to recover property, the title to which passed by the sale. Hence it cannot be assumed that such an agreement is a contract to carry on litigation, or that litigation is the necessary result of it, and the consideration upon which it is founded. This view is held in Floyd v. Goodwin, 8 Yerger, 484. 2d. There is no agreement that Harper should bear the expenses [630]*630incident to the enforcement of the execution, and in realizing the fruits of it.
Finally, as to the matters of defence urged against the relief sought in the original bill: we consider the proceedings in the Probate Courts as such clouds upon the title of the defendant in error as to call for the interposition of a court of equity to prevent their consummation. These proceedings must be regarded as taken for the purpose of enabling Moody to take the benefit of the alleged outstanding titles of the widow of Shields, and of his estate against the title of Harper; for there was no necessity or justification for the sale of the lands to pay debts, and the title of the widow had already been conveyed to him. tie had already set up these claims in the suit in chancery, and they had been adjudged insufficient to defeat the title of Harper. If insufficient as outstanding titles, they should not have been permitted to be clothed with the forms of judicial sanction by an ex parte proceeding, to be asserted against an adverse title, when in substance and in equity they were invalid.
We are of opinion that the decree enjoining the proceedings in the Court of Probates is correct, and it is affirmed.