Casey v. Sacks

• Decision Date: 28 May 1931
• Docket Number: 4 Div. 427.
• Citation: 223 Ala. 147,134 So. 851
• Parties: CASEY ET AL. v. SACKS ET AL.
• Court: Alabama Supreme Court

134 So. 851

223 Ala. 147

CASEY ET AL. v. SACKS ET AL.

4 Div. 427.

Supreme Court of Alabama

May 28, 1931

Appeal from Circuit Court, Coffee County; W. L. Parks, Judge.

Bill in the nature of a bill of review by J. D. Casey and others minors, suing by their next friend, C. S. Williamson, against H. Sacks and others. From a decree dismissing the bill complainants appeal.

Affirmed.

Whether educational advantages afforded minor children justified sale of decedent's farm for reinvestment of proceeds in city homestead for widow and children cannot be considered by Supreme Court. Code 1923, § 7919.

P. B Traweek, of Elba, for appellants.

Wilkerson & Brannen, of Troy, for appellees.

BROWN J.

The bill in this case is filed by the minor heirs of James D. Casey, deceased, suing by their next friend, C. S. Williamson, to "set aside and annul, on account of the fraud, collusion and undue influence brought to bear by H. Sacks on Mrs. Jeffie S. Casey in the procurement thereof" the decrees of the circuit court of Coffee county, Ala., the same court in which this bill was filed, ordering the sale of the real estate belonging to the estate of said James D. Casey, deceased, for reinvestment of $2,000 of the proceeds thereof in a homestead for the benefit of the widow and minor children, and for division of the balance of the proceeds among the heirs, the complainants in this case, and the decree confirming the sale and directing the execution of a deed to the purchaser by the register.

Jeffie S. Casey, the widow of said James D. Casey, who filed the bill seeking the sale and reinvestment and division, H. Sacks, the purchaser at the sale, and his two minor children, who obtained title to the property by inheritance from their deceased mother, to whom Sacks conveyed soon after he obtained the register's deed, are made parties defendant.

The fraud alleged, in substance, is that the farm upon which said James Dan Casey resided at the time of his death, constituting his homestead, consisted of 166 acres, of the value of at least $4,000, which was well known to said H. Sacks; that Mrs. Casey, the widow, was a woman of no business ability or experience, and had but little education, was imprudent, and expended the funds that came into her hands at the death of her husband recklessly; that soon after his death she moved to Troy and came under the influence and dominion of the respondent H. Sacks, a man of business experience and ability, who induced her to employ an attorney, one Baker, to file the bill to sell the farm, and colluded with her to bring about the sale through a decree of the court; that before the proceedings were begun, they (Mrs. Casey and Sacks) had a secret understanding that she would accept in exchange for the farm a house and lot worth from five to six hundred dollars, at an agreed price of $2,000; that a guardian ad litem, through collusion with the solicitor of the complainant in that case, was appointed to represent the minor defendants in that case, without service of process, although one of said minor defendants, J. D. Casey, Jr., was then fifteen years of age; that the guardian ad litem acted in collusion with the solicitor of the complainant in said case, filing a mere formal answer and made a mere perfunctory defense, took no testimony and did not cross-examine the witnesses of the complainant; that by prearrangement with the said Sacks, the widow, acting as his dummy, bid in the property at the sale for $3,000; that said Sacks misrepresented to the said widow and the register who was authorized to purchase a homestead for the widow and minor children, as to the size of the lot taken in part payment of the purchase money, as being a lot fronting 200 feet on an improved street, when in fact it fronted only 125 feet on a back street, unimproved, and within a week after said Sacks obtained the register's deed to the farm property, he made a voluntary conveyance to his wife; "that all of said proceedings were instigated and carried out under the influence and dominion of H. Sacks over the said Mrs. Jeffie S. Casey, and by reason of his collusion, persuasion and undue influence over her, and with intent to obtain said farm for him for a grossly inadequate price, *** and in carrying out the scheme to defraud and with the intention of accomplishing the same, he intentionally deceived the said Mrs. Casey and the Register of the Court," who was authorized by the decree to invest two thousand dollars of the proceeds, having due regard for the wishes of the widow, "and thereby deceived the Court itself by his false representations and pretenses of the value and the true boundaries of the property in Troy, which he was planning to exchange and convey to the widow and young children of Dan Casey in exchange for said farm for a grossly inadequate consideration."

Counsel for the complainants, in preparing his bill and presenting his case here, seems to confuse the principles and rules of law applicable to a bill of review for errors apparent, with those applicable to a bill in the nature of a bill of review seeking to vacate and annul a decree for fraud in its procurement.

In Gordon's Adm'r v. Ross and Wife, 63 Ala 365, the distinction was stated thus: "The objects and effect of a bill of review, and of a bill impeaching a decree for fraud, are essentially different." And it was said of the bill in that case, which presented the case in both aspects: "If entertained as a bill of review, the former decree, so far as erroneous, would be reversed, and the court would proceed to retry the cause, rendering the decree the evidence would authorize. But, if fraud has infected the decree, it must be vacated entirely-there is no...