SELZ V. UNNA, 73 U. S. 327 (1867)

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U.S. Supreme Court

Selz v. Unna, 73 U.S. 6 Wall. 327 327 (1867)

Selz v. Unna

73 U.S. (6 Wall.) 327


1. Equity will not grant relief where the allegations of the complainant show that he has no title nor interest in the subject matter of the dispute.

2. Nor, in an action where all are liable (as ex. gr. an action of trespass against tortfeasors), enforce a secret agreement made by the plaintiff with certain of the defendants that if they will desist from resistance to his suit, he will, if he recovers judgment, not levy execution on their property, litigants being bound to act fairly to each other, and such an agreement operating as a fraud.

3. Although the assignee of a judgment takes it subject to all defenses that existed against it in the hands of the assignor, yet such an agreement as that above mentioned constitutes no defense as against an assignee in good faith and without knowledge of the secret agreement, the verdict and judgment having been regularly entered against all the defendants.

Page 73 U. S. 328

4. Equal contribution among tortfeasors is not inequitable, although the law will not support an action to enforce contribution where the payments have been unequal.

Hence, where a marshal has received three-fourths of the amount of a judgment from three of four defendants, tortfeasors, he does nothing inequitable in collecting, under agreement with them that he shall do so, the residue from a fourth.

Unna sued four different parties, of whom Selz and Leopold were one, for a tortious levy which they had made on his property, assuming it to be the property of one of their debtors. When the suit was about to be tried a second time -- the jury having once been unable to settle upon a verdict -- Unna agreed with Selz and Leopold (as they alleged) that if they would desist and abstain from all participation in the preparation and conduct of the defense thereof, he would protect and save them harmless from all loss and damage, under whatever judgment he might recover, and would so control and direct the collection thereof that no part of the same should be paid by or collected from them under any execution issued thereon. In pursuance of the agreement, Selz and Leopold and their counsel did withdraw from the defense of the suit. Judgment having gone in favor of Unna and against all four parties -- and all four standing on the record as convict alike -- Unna after a certain time assigned the judgment to two persons whom this Court regarded, upon the evidence, as purchasers in good faith, and without knowledge of the secret agreement; his assignment covenanting "that he had neither made, done or suffered any act or thing by which the said judgment is in any manner impaired or lessened in value." The assignees having issued execution, proceeded to levy on property of some of the three defendants. The whole three then agreed to pay him three-fourths of the judgment, it being understood that for the remaining fourth the assignees should look to Selz and Leopold. For that fourth assignees accordingly resorted to them, levying upon and selling certain real estate as the

Page 73 U. S. 329

property of Leopold. Thereupon Selz and Leopold filed bills in equity against Unna and the three other defendants and the assignees, setting up the agreement with Unna; alleging that the three other defendants had paid the whole amount of the judgment, which was therefore satisfied; that the assignees were but covers for these other defendants who had had the assignment made in order to obtain contribution from them, Selz and Leopold. It was alleged as well that the real estate levied on, though once Leopold's, was not so now, it having been sold by his assignees for creditors some time ago. The prayer was for an injunction against the marshal's making any deed for Leopold's interest in the real estate, and from further proceedings to collect the judgment, and that it should be declared satisfied of record, as it was alleged to be in fact.

The answers denied the equities of the bill generally, and especially all knowledge of "the fraudulent agreement;" denied that the judgment had been paid, on the contrary asserted that it was unpaid; and asserted also that the assignment was bona fide . The court below dismissed the bills. Appeal accordingly.

Page 73 U. S. 331

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