ISRAEL NESSON & another vs. FRANKLIN H. GILSON.

DE COURCY, J. In 1899 a promissory note for $13,000, secured by a mortgage upon real estate, was given by the plaintiff Israel Nesson to Mary E. Walker, now deceased. At a foreclosure sale of the mortgaged premises in 1904, the property was bid in on account of the mortgagee for $10,000. After the death of Mrs. Walker, the defendant Gilson, as administrator of her estate, brought an action for the balance due upon the note. Nesson's defence in substance was that Mrs. Walker had agreed to take the property for the amount of the mortgage, that a friendly foreclosure accordingly took place and that Mrs. Walker's failure to bid the full amount of the mortgage was a breach of her agreement.

The action was heard by a judge of the Superior Court in 1907, who made a finding for the plaintiff, and later denied a motion for a new trial. Exceptions filed by Nesson were sustained by this court on the ground that there was some evidence of a consideration for the alleged agreement. Gilson v. Nesson, 198 Mass. 598.

A second trial was had before another judge of the Superior Court, in 1910, and again the finding was for the plaintiff. Nesson's exceptions taken at that trial were overruled by this court in 1911. Gilson v. Nesson, 208 Mass. 368.

In March, 1911, judgment was entered on the finding. Later Nesson filed a petition for a writ of review; and this was heard upon the merits by a third judge of the Superior Court and was denied. Other litigation between the parties, growing out of the same controversy, need not be recited.

The present suit in equity [Note p213] was brought to restrain the enforcement of the judgment described above. The allegations of the bill, so far as material, relate mostly to facts and evidence already considered at the trials on the merits and no longer open.

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The only ground on which the bill could have any standing in equity is that set forth in the paragraph numbered twenty-six A. Therein the plaintiff alleges that the defendant Gilson, conspiring with four other persons named, "caused and procured the said Millen and Ballou to offer false testimony at the hearing in said cause, in consequence of which a judgment was entered therein against this plaintiff."

While there are cases where a court of equity upon proper application will enjoin a party from enforcing a judgment which he has obtained by means of fraud (see Edson v. Edson, 108 Mass. 590; Brooks v. Twitchell, 182 Mass. 443; 23 Cyc. 1022 et seq.), the fact that the prevailing party knowingly gave or procured false testimony upon a material issue ordinarily is not ground for such equitable interference. Zeitlin v. Zeitlin, 202 Mass. 205; 23 L. R. A. (N. S.) 564 note. Even assuming that Millen testified falsely at the second trial, the plaintiff's allegations in paragraph twenty-six A are disposed of by the findings of the master that there was no such conspiracy, that the defendant acted honestly and in good faith and that the charges of misconduct on the part of Mr. Schulz were unfounded. And there is no allegation or proof of fraud extrinsic to the trial, as distinguished from perjury in the trial itself, such as might entitle a plaintiff to relief. Keyes v. Brackett, 187 Mass. 306.

The exceptions to the master's report are based on objections that certain findings were not warranted by the evidence or that other findings were not made. As the evidence on which the master acted is not reported, these must be overruled. Cook v. Schefreen, 215 Mass. 444.

The motion to recommit must be denied. It asks for a report of the evidence at the hearings in the Superior Court and before the master and for findings upon questions that were decided or involved in the trial on the merits or that are not material to this bill in equity.

What the plaintiff really seeks is a reopening of the original case. But a court of equity has no supervisory jurisdiction over courts of law; and the plaintiff, by trials on the merits and on the petition for review in the proper forum, has had ample opportunity to present his defence. He has had his day in court, the issues have been decided against him and he cannot litigate

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them anew. United States v. Throckmorton, 98 U.S. 61. Marvel V. Cobb, 219 Mass. 458.

The master's report is confirmed, and the bill dismissed, with costs.

Decree accordingly.

I. Nesson, pro se, submitted a brief.

C. A. Bunker, for the defendant.