Curry v. Peebles

• Citation: 3 So. 622,83 Ala. 225
• Parties: CURRY ET AL. v. PEEBLES ET AL.
• Decision Date: 31 January 1888
• Court: Supreme Court of Alabama

3 So. 622

83 Ala. 225

CURRY ET AL. v. PEEBLES ET AL.

Supreme Court of Alabama

January 31, 1888

Appeal from chancery court, Pickens county; THOMAS W. COLEMAN Chancellor.

Bill in equity in nature of a bill of review. This bill was filed by Elizabeth P. Ingram, now intermarried with D. S. Curry, by her next friend, D. S. Curry; D. S. Curry; and Mamie Curry, a minor about three or four years old, by her next friend, D S. Curry,-against Emory B. and William B. Peebles. The defendants demurred to the bill, and assigned many grounds of demurrer, but the only one considered in the opinion of the court is the demurrer which alleges that the bill of the complainants does not aver sufficient facts to entitle them to equitable relief; and that they have a full, adequate, and complete remedy at law. The court sustained the demurrers of the defendants, and that decree of the court sustaining the defendants' demurrers to the bill of complaint is now assigned as error.

Johnston, Caldwell & Johnston, for appellants.

Stone, Willett & Stansel, for appellees.

CLOPTON J.

The bill is brought by appellants as an original bill in the nature of a bill of review. As amended, it seeks to review for error apparent decree rendered in a former suit; and also to impeach the decree for fraud; to have certain conveyances surrendered and canceled; and to compel the defendants to account for the rents and profits of the lands in controversy. The bill substantially alleges that the decree sought to be reviewed and impeached was rendered on a bill which was filed in March, 1869, by the personal representative of James M. Ingram against R. M. Noland and others, in two aspects,-one to annul and set aside a sale and conveyance of the lands in controversy made by Ingram in his life-time to Noland, on the ground of fraud and mental incapacity; and the other, if the sale and conveyance are held valid, to declare and enforce a vendor's lien for the unpaid purchase money. Answers were filed denying the incapacity of the grantor and the fraud, and claiming that the vendor's lien was waived. The cause was submitted for final decree, which was rendered in July, 1870. The decree, after reciting that "it appeared to the satisfaction of the court that the contract of sale is void on account of the incompetency of Ingram to make the contract, immediately proceeds to decree that the sum of six thousand dollars is due on account of the purchase money; that the lands be sold by the register and out of the proceeds of the sale there be paid the cost of the suit, and commissions for selling, one thousand dollars to the counsel of complainant and defendants, two hundred and fifty dollars to the widow of Ingram in lieu of dower, five hundred dollars to his widow and heirs, and the remainder to be equally divided between the complainant and defendants." The decree was rendered by the consent of the parties as expressed on its face, and as shown by their written agreement. The register subsequently reported that a sale of the lands was made as directed by the decree, but that Noland executed a conveyance to William B. Peebles, and that the register, by request and consent of the parties, had made and delivered to him the deed ordered by the decree to be made to the purchaser, the purchase money found due having been paid by him, and that it had been paid out as ordered by the decree. The report of the register was confirmed by the written consent of the parties. It is contended that decreeing a sale of the lands after having ascertained that the original contract of sale was void, the confirmation of the private sale to Peebles, and the distribution of the fund in the manner ordered, are errors apparent. Whether or not they are such, it is unnecessary for us to consider, unless the complainants are in a position which entitles them to have the decree reviewed.

A bill of review, or an original bill in the nature of a bill of review, can only be filed by parties or privies to the former suit, and will not be entertained, at their instance, to reverse and set aside a decree taken by consent, unless something which was not consented to has been inserted as by consent, or unless consent was procured by fraud. 2 Daniell Ch. Pr. 1576, 1580. When a decree has been obtained by fraud, a party or privy to the suit may seek relief by an original bill in the nature of a bill of review, and if the decree has been executed, may incorporate therein any matters necessary and proper to place the parties in the same situation in which they would have been had the decree not been executed. But if a stranger to the suit, a party not in privity of title or estate, who is aggrieved, seeks to impeach the decree for fraud in a court of equity, he must proceed by original bill, not for the purpose of reversing the decree and having the cause retried, but to vacate it entirely as to him. Gordon v. Ross, 63 Ala. 363. The complainants founded their right to maintain the bill on their...