Yongue v. Billups

23 Miss. 407

• Court: Mississippi Supreme Court
• Decided: January 15, 1852
• Status: Published

Opinion

Mr. Justice Yerger

delivered the opinion of the court.

Billups obtained judgment on a note made by the appellant, payable to William L. Harris, and this suit was brought to enjoin the execution of the judgment, upon the ground that the note had, by mistake, been made for a larger sum than the appellant owed. An attempt was made and failed to resist a recovery at law upon this same ground. But the appellant seeks to avoid the force of the rule denying relief in equity, after a judgment at law, where the party has failed to make a known defence, by alleging, that he owed the Commercial Bank of Columbus; that this bank was insolvent, and assigned its effects, including the debt of appellant to Andrew Weir and others; that Harris as the attorney of Weir et al. sued appellant and obtained judgment; who to liquidate the amount of the judgment, executed the note sued on, and another payable to Harris, and that in making these notes a mistake occurred in the calculations. The bill alleges also, that Bil-lups was a stockholder in the bank, and that Harris assigned him, by the direction of Weir, the note sued on, in payment of his stock; and it is insisted that, if appellant pay to Billups the amount of the judgment, he .will thereby become a creditor of the Commercial Bank to the extent of the amount for which the note exceeded appellant’s debt to the bank, and being such creditor, and the bank insolvent, a court of equity would declare the amount which Billups received in payment of his stock, a trust fund for the payment of creditors, and therefore decree him to pay the .appellant the amount which the bank would owe by reason of his having paid Billups a greater sum than was really due to the bank. Hence it is alleged, that to avoid circuity of action, a court of equity will enjoin the judgment in the first instance for that amount. Without pretending to go at length into the doctrine of the extent which a court of equity will hold a stockholder of an insolvent bank, who has been paid the amount of his stock, a trustee for creditors, or whether such a trust would be declared in a suit of this kind, and between these parties, it is a full answer to the position assumed in the bill, that, in our opinion, the appellant, by paying the amount of the judgment, would not become a creditor of the Commercial Bank of Columbus for the excess included by mistake in the note over his real indebtment to the bank. If the bank itself had sued him on the note, and obtained judgment for the full amount, equity would not have given him relief by reason of the alleged mistake, after an opportunity to defend at law and a failure to do so. And it would seem to follow, that an implied assumpsit on the part of the bank to repay him would not arise, because an assignee of the bank recovered of him the full amount of the note, and compelled its payment by reason of his own laches in defending at law. We are at a loss to recognise the principle of law or equity which would impose an obligation on the part of the bank to repay the appellant any part of the money which he may be compelled to pay on this judgment. He knew his defence on the trial at law; he had a full opportunity to make it. He attempted to do so, and having failed to maintain it, it is too late now to ask relief in a court of equity. We see no error in the decree of the vice-chancellor dismissing the bill, and therefore affirm it.

Let the decree be affirmed.