Estis v. Patton

Catron, Ch. J.

delivered the opinion of the court.

Patton and Estis were the securities in an appeal bond for Hughlet, together with three others. Patton paid a portion of the debt; the other sureties none. This occurred in July 1821. In September 1828, Patton moved the Hickman circuit court, (where judgment had been rendered against Hughlet,) for judgment against his co-security Estis, for one fourth of the amount paid by him, by virtue of the act of 1801, ch. 15, sec. 2.—Judgment was entered up, and this hill was filed in the chancery court to. be relieved against it. The only ground relied on before the court is, that Estis had no notice or opportunity to defend himself by relying on the statute of limitations, to resist the motion of Patton, and that he is entitled to make the same defence in effect by bill.

Had the judgment by motion been obtained by fraud, though sanctioned by the words of the act of assembly, or if it were void for want of jurisdiction in the court? and attempted to be enforced by execution, which would be a fraud in itself, equity would afford relief. But the judgment was lawfully obtained, and just in itself. Equity before the passage of the act of 1801, would have afforded the same relief. Patton has a legal advantage, and *383 before Estis can have it removed, (had a court of equity jurisdiction) he must submit to the terms of doing equity to Patton by paying his portion of the debt. We think there was no ground for this bill, and order it to be dismissed.

Bill dismissed.