Selz v. Unna
APPEAL from the Circuit Court for the Northern District of Illinois.
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 defence 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 defence 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 th assignees accordingly resorted to them, levying upon and selling certain real estate as the 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.
Messrs. Gookins and Roberts, for the plaintiff in error:
Even assuming as opposite counsel does, that the assignment was bona fide, and without knowledge of the agreement of Unna with Selz and Leopold, which is assuming what we regard as against the evidence, still the decree below was wrong. Surely, Unna cannot, in a court of equity, say that this agreement is not binding on him. His assignees are in no better situation than himself. 
Then, as to the matter of contribution. Since the well-known case of Merryweather v. Nixan,  in the time of Lord Kenyon, C. J., the authorities bearing upon the question of contribution in like cases to this, are almost uniform that it will not be enforced at law, or in equity. 
Mr. McKinnon, contra:
It may be remarked, primarily (though this matter was not relied on below), that the complainants have no right, title or interest in or to the real estate, in respect to which they seek to enjoin the marshal from making a deed. The bill states that it was sold long ago. But passing to other matters:
1. The consideration whereon the complainants found their claims to the relief prayed, is inequitable. Look at the case: Honest creditors engaged in a common defence against a suit for a levy which they believed that they had a right to make, and where they have been so far successful that one jury has failed to agree on a verdict. These complainants, Selz and Leopold, just as the case was called for trial a second time, secretly, and without the knowledge of their co-defendants, by agreement with the common prosecutor, Unna, desist and abstain from all further participation in the defence, and with their counsel retire from the courtroom, leaving their confederates to suffer, while they went free. 'Equality is equity.' That is one maxim of equity, old as equity itself. Another is, 'He that hath committed iniquity shall not have equity.'
2. Are these assignees within the meaning of the rule that the assignee of a chose in action takes it subject to all the equities existing between the original parties? In no just sense. We here rely on what was said in the court below (Drummond, J.):
'Admit the general rule, that the assignee of a judgment takes it with all the equities that there may e , and that these equities can be set up as well against the assignees as against the assignor. Yet such an agreement as this, which is not an equitable, but an inequitable agreement, so far as the other defendants are concerned, cannot be set up in a case like this, to protect them from a liability which, when the judgment was obtained, was as binding on them as on the other parties, defendants in the case.'
So too as to the question of contribution, we adopt its remarks:
'The general rule undoubtedly is, that there can be no contribution between wrongdoers, and this was an action of trespass against these parties. This rule has been qualified considerably; many exceptions already exist under it,  and it is doubtful whether the rule could be said to operate in a case like this. At any rate, I am not disposed to grant these plaintiffs relief until I am satisfied that they have done equity as to the other defendants.'
Mr. Justice CLIFFORD delivered the opinion of the court.
^1 Row v. Dawson, 2 Leading Cases in Equity, part 2, p. 236, and cases there cited; and see McJilton v. Love, 13 Illinois, 495, citing Himes v. Barnitz, 8 Watts, 39; Chamberlin v. Day, 3 Cowen, 353.
^2 2 Smith's Leading Cases, 6th ed. 527; reported from 8 Term, 186.
^3 See Farebrother v. Ansley, 1 Campbell, 343; Wilson v. Milner, 2 Id. 452; Nelson v. Cook, 17 Illinois, 443.
^4 See 1 Parsons on Contracts, 37, and authorities there cited, particularly Bailey v. Bussing, 28 Connecticut, 455.