Page:Federal Reporter, 1st Series, Volume 3.djvu/508

 INBE SOOLE. ���501 ���voluntary payments of interest, and they are, applied in liquidation of the principal. Tiffany v.- Boafman' s Institu- tion, 18 Wall. 375, 386; Wheelock v. Lee, 64 N. Y. 2e2, 245;- Beach v. Fulton Bank, 3 Wend. 573, 585, �I think, also, it is clear that the whole series of notes in this case are ail to be treated as renewals of the original loans. See Nat. Bank v. Lewis, 75 N. Y. 516, The parties have treated them as such. But, even if the respondent is right in his claim that no account can be taken of payments in excess of legal interest made by ïïoole & Son, it makes no material difference as respects this motion ; for, whether -we go baek to the first loan, in 1870, or only to the time of the death of John E. Hoole, Jr,, the substantial f act remains, that, upon a proper and equitable statement of the account between the assignee and Larned, there was nothing due Lamed in excess of the value of the seeurity, and the debt was wholly, or, fox the most part, paid, for which he held the policies in pledge, and the averments of the petition and afïïdavit, on ■which the order now sought to be vacated was made, were untrue. �It is -wholly immaterial that there was no fraud; as between Larned and the assignee. It isnot. sought to vacate the ûr- der on that ground, The power and duty qf the court to vacate the order do not rest on proof of fraudj or even on the theory that the parties, or either of them, were guilty of any intended fraud or deceit upon the court. It rests upon this: that the order was procured by a material misrepresentation of f acts to the court, and that if the real facts had been stated the court would not bave made the order. Lamed, even if wholly innocent of fraud, cannot now claim to hold on to the . benefits of an order which he aided in procuring by a false representation of the facts. It is clear that if the facts now disclosed, and then known tb the parties, had been made known to the court, the order would not have been made. �Upon the most favorable view of the case for Larned, it was a case of a doubtful or disputable claim, and one in which the power of the court to authorize a compromise might properly be invoked. The negotiation between the parties ����