State v. Simpson, 28 Minn. 66; 41 Am. Rep. 269; McFarland v. State, 68 Wis. 400; 60 Am. Rep. 867; State v. Cole, 48 Mo. 70.

While the judgments in such cases as those above cited are fraudulently procured, and are frequently said to be void because of the fraud practiced, it is apparent that a better reason for holding them void, and not binding upon the state, is, that the state is not a party to them.

The state can no more be bound by a judgment to which it is not a party than a citizen of the state can. If A and B engage in litigation, and during its pendency B corrupts A's attorney, and through him procures the rendition of a judgment unjust to A and inuring to B's advantage, although the judgment is thus tainted by fraud, if the court had jurisdiction of the subject-matter, and the proceedings are apparently fair and regular on their face, the judgment is not void, and cannot be attacked collaterally.

A judgment rendered under such circumstances is voidable, and the court rendering it will promptly set it aside on the fraud being shown: Freeman on Judgments, 99.

A court of equity will also give relief from a judgment thus procured: Black on Judgments, sec. 919; Freeman on Judgments, secs. 486 et seq.; Pomeroy's Eq. Jur., sec. 919.

The attack, however, must be direct, and not collateral: Black on Judgments, secs. 290 et seq., and cases cited.

If, however, B, without the knowledge or consent of A, and wholly without authority, personates him, or procures another to personate him, and prosecutes a suit in A's name, but actually in the interest of B, whereby a judgment is rendered to the disadvantage of A and advantage of B, it would be contrary to all principles of justice to hold that A was, in any manner or to any extent, bound by such judgment. Never having been a party to it, or having any notice or knowledge of the proceeding, he may treat it as a nullity, and may attack it collaterally, as the state was allowed to do in each of the several cases cited.

In speaking of such cases, Bishop well says: "He [the defendant] is, while thus holding his fate in his own hand, in no jeopardy. The plaintiff state is no party in fact, but only such in name; the judge is imposed upon indeed, yet in point of law adjudicates nothing; all is a mere puppet-show, and every wire moved by the defendant himself": 1 Bishop's Crim. Law, sec. 1010.

The supreme court of New Hampshire, in State v. Little, 1 N. H. 257, suggest a query, whether a judgment can ever be regarded as fraudulent and void when the state has been actually represented by its proper prosecuting officer.

We have been unable to find any case in the books presenting the peculiar features of the case at bar, where the courts have considered the sufficiency of a judgment thus procured as a defense to another prosecution for crime.

Here, the first prosecution was commenced regularly, and in good faith, and the state was represented throughout by its regularly authorized officer and agent, the prosecuting attorney. The charge is, that pending the prosecution the prosecuting attorney was corrupted, and paid to secure an acquittal instead of a conviction. So far as disclosed by the record, the prosecution proceeds with regularity throughout.

The arraignment, plea, and submission are regular, but the trial is a farce.

The distinction between such a case and those cited is at once apparent, and is very broad. While the baseness of an officer who will thus prostitute his office cannot be too severely condemned, and while he should receive prompt and severe punishment, our indignation should not be allowed to blind us to the principle involved. Our anxiety to rectify this wrong done, and punish the wrong-doer, should not lead us to violate established principles of law in our efforts to do so.

In the first prosecution the court had jurisdiction both of the subject-matter and of the parties. As above stated, the proceedings were regular up to and including the submission, and are not void. The steps taken were the usual, proper, and necessary steps in such a case, except that the defendant had the right to a jury trial, instead of a trial by the court. It is not pretended, however, that the judge was corrupt, or that his action was not characterized throughout by the highest and purest motives, and most sincere devotion to duty. When the cause was submitted for trial, jeopardy attached; so that, even if the extreme position were taken, and the trial regarded as a nullity, and the judgment absolutely void, we could expunge both from the record, and there would still remain a valid prosecution pending, awaiting trial.

Upon the other hand, if the former judgment, while voidable because of the fraud, is not void (which is our opinion), it is not open to collateral attack. In either view of the case, it follows that the court erred in ignoring the first prosecution,

AM. ST. REP., VOL. XXVIII. — 14

and in allowing a new and independent prosecution to be maintained. Whatever rights the state has must be worked out in the original proceeding. The views we have expressed necessarily lead to a reversal.

It is unnecessary, and would be premature, for us to decide, at this time and in this case, what will be proper procedure for the state in the future conduct of this matter. We will only say that the question is not free from difficulty. It has, however, received consideration from those learned in the law, and some interesting and valuable suggestions will be found in 1 Bishop's Crim. Law, secs. 1008, 1009. See also Rex v. Bear, 2 Salk. 646; State v. Tilghman, 11 Ired. 513; State v. Swepson, 79 N. C. 632.

Judgment reversed.

ON PETITION FOR A REHEARING.

MCBRIDE, J. A petition for a rehearing by the state is based on an evident misapprehension of the scope and effect of the original opinion..

While it is true that a prosecution, which is in fact instituted and carried on to final judgment by or in the interest of a guilty person, to enable him to defeat justice and escape merited punishment (he in person, or by his instruments managing both sides), may be treated as void by the state, and ignored, on the ground that the state is not in fact in any sense a a party to it, and therefore not bound by it, this is not true where the state is in fact a party to the proceeding. Where a prosecution is in fact regularly commenced by the prosecuting attorney, and is thereafter carried to final judgment, the state being represented throughout by its sworn officer, the prosecuting attorney, such judgment is not void because the prosecutor was corrupted during the pendency of the proceeding. The state is a party to such judgment. The conduct of its unworthy representative conspiring with the guilty party may render it voidable, but it cannot be ignored.

Petitition for rehearing overruled.

JUDGMENTS- Collateral AttaCK.—A collateral attack on a judgment or order cannot be successful unless such judgment or order is void: Dyer v. Leach, 91 Cal. 191; 25 Am. St. Rep. 171, and note; Boyd ▼. Ellis, 109 Mo. 394; Carter v. Rountree, 109 N. C. 29.

ANDERSON V. ANDERSON.

[129 INDIANA, 573.]

EXECUTION OR JUDICIAL SALE OF PROPERTY TO SATISFY A JUDGMENT AND DECREE EXHAUSTS THE POWER TO SELL SUCH PROPERTY thereunder, and a judgment creditor cannot, after the redemption by a junior encumbrancer, resell it to enforce payment of the unsatisfied part of the judg ment. When the junior encumbrancer redeems, he does so for his own benefit, and not for that of the creditor upon whose judgment the sale was made. CONSTITUTIONAL LAW. - Statutes CreatinG A RIGHT TO REDEEM MAY BE ALTERED. This right is the creature of the statute, relating to the remedy, and is not so essential to a contract right as to be entirely beyond legislative control.

S. H. Doyal and P. W. Gard, for the appellant.

J. Claybaugh and R. P. Davidson, for the appellees.

ELLIOTT, J. On the third day of January, 1876, Jeremiah Anderson executed a promissory note to the appellant, and to secure payment of the note, Jeremiah and his wife, Sarah, executed a mortgage to the appellant. Suit was brought on the note and mortgage, a judgment for $7,178 was recovered against Jeremiah, and a decree foreclosing the mortgage was rendered. On this judgment and decree the mortgaged land was sold for three thousand dollars, and subsequently other property was sold for fifteen hundred dollars. The avails of the sales under the judgment were not sufficient to pay the judgment, but left the sum of $3,020 unpaid. In November, 1887, Sarah Anderson recovered judgment against Jeremiah Anderson for $1,516. On the twentieth day of January, 1888, she redeemed the land described in the mortgage executed to the appellant. The appellant's position is, that he is entitled. to have the land sold to himself and redeemed by Sarah Anderson again sold to satisfy the $3,020 remaining unpaid upon, his judgment against Jeremiah Anderson.

Counsel argue that the lien of the mortgage was not merged, and that the lien still exists, notwithstanding the sale, and refer us to the case of Teal v. Hinchman, 69 Ind. 379. It is true that the lien of a mortgage is not always merged in a judgment, and that equity will preserve the lien when necessary to prevent injustice: Evansville etc. Co. v. State, 73 Ind. 219; 38 Am. Rep. 129; Pence v. Armstrong, 95 Ind. 191 (207). But the doctrine stated does not rule such a case as this. The principle which controls the present case may be thus

stated: The sale on a judgment or decree exhausts it as to the property sold, and the judgment creditor cannot, after redemption by a junior encumbrancer, resell the land to enforce payment of an unsatisfied part of his judgment: Horn v. Indianapolis Nat. Bank, 125 Ind. 381; 21 Am. St. Rep. 231; Green v. Stobo, 118 Ind. 332; Hervey v. Krost, 116 Ind. 268; Simpson v. Castle, 52 Cal. 644; People v. Easton, 2 Wend. 298; Russell v. Allen, 10 Paige, 249; Clayton v. Ellis, 50 Iowa, 590.

The object of the law is to compel creditors to bid a fair and adequate price for the debtor's property, and to prevent them from bidding a small sum, and in the event of a redemption, again subject the property to sale. The policy of the law and it is a sound and just one-is to prohibit the creditor from selling the property more than once for his own benefit, and to secure a just and fair price for the property in the first instance. Another purpose is to discourage the practice of creating costs by making repeated sales on the same judgment. The case of Greene v. Doane, 57 Ind. 186, has been disapproved in many decisions and by the text-writers generally. Our own decisions have emphatically asserted that even if that case was well decided under the statute then in force (which is questioned in some of the cases), it does not express the law as it now exists.

It is a mistake to suppose that the law intends that the redemption by a junior encumbrancer shall be for the benefit of the creditor upon whose judgment the land was sold; for, on the contrary, the right of redemption is created for the benefit of the debtor and junior encumbrancers. When a junior encumbrancer redeems, he does so, in contemplation of law, for his own benefit, and not for that of the creditor upon whose judgment the sale was made: Porter v. Pittsburgh etc. Co., 122 U. S. 267.

It is insisted by the appellant's counsel that the case is governed by the statute enacted prior to 1881, and that the decision in Greene v. Doane, 57 Ind. 186, controls. But this position is untenable. Even if it were conceded that the doctrine of Greene v. Doane, 57 Ind. 186, is sound, it would not follow that it governs here. It has been directly decided by the supreme court of the United States, and impliedly by this court, that statutes creating a right to redeem may be altered. The right to redeem is solely the creature of statute; it relates to the remedy, and is not, as it is held, so essentially and intrinsically a contract right as to be entirely