Gilman v. Hovey

1. Although a judgment by confession may have been rendered by a clerk in vacation, under article 22 of the practice act of 1849 (Sess. Acts, 1849, p. 96), upon a verified statement defective in that it did not sufficiently set forth the facts out of which the confessed liability arose, it is not therefore a nullity ; unless set aside or vacated its validity can not be questioned collaterally. 2. Judgments confessed under article 22 of the practice act of 1849 are liens upon real estate.

Error to Jackson Circuit Court. The following finding of the 'facts sufficiently shows the nature of this suit: “ The court finds the facts of this case to be, that on the 17th day of May, 1854, and for some time prior thereto, defendants, under the name, firm and style of Hovey & Buchanan, were engaged as partners in the practice of law at Independence, Missouri, holding themselves out to the public as qualified- for and engaged in the practice of law ; that it was a part of their business, as such attorneys, to draw deeds, examine titles, &o.; that on said 17th day of May, 1854, plaintiff had in said Jackson county certain goods, groceries, &c., which one Abrahams proposed buying, and which plaintiff proposed selling to him if he would execute his note therefor due in six months, and secure the payment thereof to. his satisfaction; that said Abrahams agreed to take said goods on said terms, and to secure the payment thereof by giving a lien upon the following lands, [describing them] ; that said lands were worth a sufficient amount to secure the amount of the price of said goods; that before accepting said note and the lien upon said land to secure the payment thereof, plaintiff by his agent applied to defendants or one of them, in their professional capacity as attorneys as aforesaid, to examine into the title to said lands to ascertain if said Abrahams had a good title thereto, and if there were any encumbrances thereon of record in said Jackson county ; that prior to said examination, defendants were informed of the object for which said examination was to be made, to-wit, that a lien might be taken on said lands to secure the payment of the purchase money for the goods aforesaid, and defendants were instructed, if they found the title to said lands valid and free from encumbrance, to prepare a deed of trust from said Abrahams to plaintiff upon said lands to secure the payment of the purchase money for the goods proposed to be sold to said Abrahams as aforesaid by plaintiff; that they undertook to make said examination, and after sufficient time for examination they reported to plaintiff’s said agent that the title of said Abrahams to said land was valid, and that there were no encumbrances thereon of record in said county; and thereupon they prepared a deed of trust on said lands from said Abrahams and wife to Alexander Street as trustee, to secure the payment to plaintiff of the purchase money of said goods, to-wit, the sum of $1050 ; that said Abrahams executed his note to plaintiff for said sum due in six months, and said Abrahams and wife executed said deed of trust to secure the payment -of said note, and, upon the execution of said deed of trust and note, plaintiff’s said agent upon said security delivered said goods to Abrahams ; that the said plaintiff by his agent paid defendants for their said services two dollars and fifty cents, the sum demanded by them therefor. And the court further finds that on the 23d day of February, 1854, a judgment was rendered in the said Jackson circuit court by the clerk of said court in vacation, by confession, in favor of one Levi Berg and against said Abraham M. Abrahams, for the sum of $2,410.47, which said judgment was a matter of record in said Jackson circuit court, and upon which said judgment had been paid the sum $702.42 prior to the said 17th day of May, the balance of said judgment remaining unpaid and a subsisting lien on the land aforesaid on said 17th day of May, 1854 ; that there was an index to the judgments rendered in said Jackson circuit court, and that the judgment confessed as aforesaid was indexed upon the day it was confessed as aforesaid; upon which same judgment execution issued; under which execution the sheriff of Jackson county levied upon the lands aforesaid, and, on the 13th day of March, 1855, sold said lands; and the amount for 'syhich said lands were so sold was not sufficient to pay the balance due on the said judgment confessed by said Abrahams as aforesaid; that at the timé of the sale of said land by said sheriff said Abrahams was and ever since has been insolvent; that no part of said note executed by said Abrahams to plaintiff for said goods has been paid; also that defendants failed to examine the records to ascertain if there were any judgments against said Abrahams in said Jackson county on said 17th day of May, 1854, at which time said deed of trust was drawn. And the court further finds that plaintiff offers to subrogate the defendants to all his right by reason of the said deed of trust. And thereupon the court declares the law arising upon said facts to be that the judgment confessed by said Abrahams in favor of said Berg was a lien upon the lands described in the aforesaid deed of trust at the time of the drawing and execution thereof; that by reason of said judgment plaintiff has wholly lost his debt so intended to be secured by said deed of trust; and that said defendants were guilty of palpable negligence in not examining and making known to plaintiff’s agent the existence of said judgment in favor of said Berg and against said Abrahams. The court thereupon finds for plaintiff the sum of one thousand and fifty dollars in damages.” The following is the confession of judgment referred to in the finding: “ Berg v. Abrahams. In the circuit court of Jackson county, Missouri. Confession of judgment before the clerk of said court in vacation. Whereas I, the above named defendant, am justly indebted to the plaintiff aforesaid in the sum of six hundred and ninety-seven dollars and twenty-nine cents, on account of a balance due, including interest on the promissory note hereto annexed, dated February 20th, 1852, and due six months after date; and whereas I am justly indebted to said plaintiff in the further sum of seventeen hundred and thirteen dollars and eighteen cents ($1,718.18) on account of a certain other promissory note, (and interest thereon to this date) hereto annexed, dated August 2d, 1852, and due six months after date; now therefore I, the defendant aforesaid, hereby authorize Samuel D. Lucas, the clerk of the Jackson county circuit court, to enter judgment against me in favor of the above named plaintiff for the amount due on said two notes, to-wit, for the sum of two thousand four hundred and ten and forty-seven one-hundredths dollars ($2,410.47). Given under my hand this 23d day of February, A. D. 1854. [Signed] A. M. Abrahams.” This statement was properly verified, and accompanying it were two notes made by Abrahams in favor of Berg — one dated February 20, 1852, for $1,143.83, upon which there was a credit of $504 — the other dated August 2, 1852, for $1,610.89; each note due six months after date. “ Levi Berg vs. Abraham M. Abrahams. In vacation in the Jackson circuit court, Missouri — February 23d, 1854. Now at this day comes the plaintiff aforesaid by his attorney as well as the said defendant in his own proper person, and the said defendant (being personally known to the undersigned, clerk of the Jackson circuit court aforesaid) files herein his written statement, verified by affidavit, setting forth that the said defendant is justly indebted to said plaintiff in the sum of two thousand five hundred and ten dollars and forty-seven cents on two certain promissory notes specified in said statement, and consenting that judgment may be forthwith rendered against him, the said defendant, for the said sum upon the surrender of the said notes as aforesaid, and the said notes being produced and given up to the keeping of said court: Now therefore it is considered that the said plaintiff recover against the said defendant the sum of two thousand four hundred and ten dollars and forty-seven hundredths of a dollar (the amount of said notes and interest thereon) in the manner aforesaid, together with his costs and charges in this behalf laid out and expended, and that he have thereof execution. [Signed] Samuel D. Lucas, clerk of Jackson circuit court.” I. The court erred in permitting the supposed judgment in favor of Berg against Abrahams to be read in evidence. It was void for want of a sufficient statement to authorize the clerk to enter the same. (Sess. Acts, 1849, p. 96 ; Plum-mer v. Plummer, 7 How. Prac. R. 62; Schoolcraft v. Thompson, id. 446 ; Lawless v. Hackett, 16 Johns. 149; Chappel v. Chappel. 2 Kern. 215; 4 Zabr. 358; 2 South, 479.) Although a defective execution of a power may be cured, a want of power can not. (See 1 Sugden on Powers, 264 ; 4 "Watts & Serg. 511.) II. Said supposed judgment was not a lien upon the land. It is not the judgment of a court of record, and the act of 1849 fails to make it a lien. (Denn v. Reed, 10 Pet. 524 ; R. ,C. 1845, p. 659, § 18,19 ; 1 Terr. Laws, 119 ; 6 B. Mon. 154.) III. Plaintiff applied to Buelianan in bis professional capacity. He is liable only if bis opinion evinced culpable ignorance of tbe business of a lawyer, in which character be assumed to act. (4 Burr. 2060.) The position of Buchanan is precisely the same, so far as the plaintiff is concerned, as if the confession and entry of the clerk had been presented to him, and he had been asked and paid for his opinion as to whether the same was a valid judgment and a lien upon the land, and, in consideration of the fee, he had counselled him that it was neither a judgment nor lien. The examination or non-examination of the records was fraught with no consequences to plaintiff. It was the correctness of Buchanan’s conclusions of the law arising upon the records as they really existed, that could alone affect the plaintiff Being sued in ■his professional capacity, Buchanan is only answerable for the correctness of his conclusions. Defendants were not shown to be partners in the business of examining titles. Hovey was not liable in any event. The examination and report of Buchanan were a gratuity, in good faith, and the same was not a subject of partnership nor of joint liability. If Buchanan had reported that the supposed judgment was valid and a lien upon the land, he would have been guilty of culpable ignorance of the adjudications of an appellate court appointed by law to construe the very statute, under which this confession was made. (2 Kernan, 215, and cases above cited.) The report that Buchanan gave was one that a faithful and learned lawyer might well give upon full inspection of the records and a careful reading of the supposed judgment. I. Negligence in failing to make proper examination of the records for judgments, and in failing to report the judgment against Abrahams, is the foundation of this action, and it was not the want of skill or ability in the defendants to make the examination or to decide upon the legal effect of such a judgment. There was a judgment in fact. It was the duty of defendants to report it to plaintiff. Then, if he had thought proper, he might have taken their opinion as to the effect of such judgment; and if their opinion had been adverse to the validity of the judgment and the plaintiff had acted on their opinion, he might then have predicated an action upon the charge of a want of learning and skill in their profession; and the defence might have raised the question (which they now seek to raise and which is not in this record) whether it was not a matter of such doubt as to excuse them. They, however, failed to search the records. The question as to the validity of the judgment was not before them. If the judgment had been reported and an opinion given, plaintiff might or might not have relied upon it. Defendants were guilty of gross negligence in omitting to examine the records and in failing to report the existence of the judgment against Abrahams. II. The judgment was a valid judgment. (Finley v. Caldwell, 1 Mo. 364; Phelps v. Hawkins, 4 Mo. 384 ; Hill v. Dowdall, 6 Mo. 198; 1 Terr. Law, 686; G-eyer’s Dig. 264; R. C. 1845, tit. Judgment.) Unless it was an absolute nullity it was the duty of defendants to report it to plaintiff. The validity of the judgment could not be questioned collaterally. So long as it existed on the records it would be a valid lien, and a sale under an execution would pass the title. (Brigg v. Adams, 2 Salk. 674; 17 Johns. 145 ; Rector v. Hart, 8 Mo. 448 ; 4 Bibb, 336.) The court had jurisdiction of the parties and of the subject matter, and the power to render the judgment and the supposed defect in the statement upon which the confession was made could only be inquired into in a direct proceeding to set aside the judgment. Even in such a proceeding this statement ought to be held sufficient. The decisions in New York are conflicting. (7 How. Prac. R. 448, 446, 62; 2 Kernan, 223.) But it is presumed that no court has held such a judgment an absolute nullity, or that its validity could be questioned collaterally.