Fairclough v. St. Amand

Citation217 Ala. 19,114 So. 472
Decision Date03 November 1927
Docket Number6 Div. 808
CourtSupreme Court of Alabama

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill in the nature of a bill of review by Frederick St. Amand against Dorothy Woodward Fairclough, to set aside a decree of divorce rendered in a cause styled "Dorothy E. St. Almond against Frederick St. Almond." From a decree for complainant, respondent appeals. Reversed and rendered.

James H. Willis and McClellan, Rice & Stone, all of Birmingham, for appellant.

Frank Bainbridge, of Birmingham, for appellee.


A court of equity will look behind the nominal complainant to ascertain the truth of the matter in the determination of who the real parties in interest are, and as affecting and enforcing an estoppel against either of said parties, if the facts warrant. Nicrosi v. Calera Land Co., 115 Ala 429, 22 So. 147; Whiteman v. Taber, 205 Ala. 319, 87 So. 353.

The general principles of an estoppel have been stated by the courts and need not be repeated. Ivy v. Hood, 202 Ala. 121, 79 So. 587. It is rested on reason, and to the effect, that one who procures a decree (of divorce) through his or her fraudulent conduct is bound by it and is thereby estopped to question its validity. This is the rule of the English (Duchess of Kingston's Case, 20 Howell, St. Tr 355) and that of the American courts. Kaufman v Kaufman, 177 A.D. 162, 163 N.Y.S. 566; Nichols v. Nichols, 25 N.J.Eq. 60; Dow v. Blake, 148 Ill. 76, 35 N.E. 761, 764, 39 Am.St.Rep. 156; Van Slyke v. Van Slyke, 186 Mich. 324, 152 N.W. 921; Simons v. Simons, 47 Mich. 253, 645, 10 N.W. 360; Bancroft v. Bancroft, 178 Cal. 359, 173 P. 579; Moor v. Moor (Tex.Civ.App.) 63 S.W. 347.

In Karren v. Karren, 25 Utah, 87, 93, 69 P. 465, 466 (60 L.R.A. 294, 95 Am.St.Rep. 815), is contained a statement of the general rules, as follows: " 'After a decree of divorce is rendered other marriages may be contracted and children born, and it is against public policy to vacate the decree, as such an order would render innocent parties guilty of bigamy, and their children illegitimate. Accordingly, the courts have sometimes refused to vacate decrees of divorce.' 7 Enc.Pl. & Prac. p. 138. But when the vacation of a decree of divorce, obtained by collusion, is sought by a willing participant in the fraud, the court, on the principle of the maxim, 'Ex dolo malo non oritur actio,' will refuse to disturb the decree, especially when the opposing party has remarried, and children have sprung from the second union. 2 Nels.Div. & Sep. § 1055; 2 Bish.Mar. & Div. § 1548; Hubbard v. Hubbard, 19 Colo. 13, 34 P. 170; Simons v. Simons, 47 Mich. 253, 645, 10 N.W. 360; Orth v. Orth, 69 Mich. 158, 37 N.W. 67; Yorston v. Yorston, 32 N.J.Eq. 495; Nichols v. Nichols, 25 N.J.Eq. 60; Greene v. Greene, 2 Gray [Mass.] 361, 61 Am.Dec. 454. In the latter case Shaw, C.J., said: 'In using the term "collusion" in the present case, we presume the libelant does not mean to use it in its ordinary sense, as collusion between the parties to the former proceeding (on divorce), and so a fraud upon the law, because that would include herself as party to the fraud.' ***

"It would be a special novelty for a plaintiff to address the tribunal with, 'The defendant and I have been playing a trick on this court, but I discover he has got the better of me, so please turn the tables on him.' Also, in Broom, Leg.Max. 711, thus: 'No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.' "

And in Supreme Lodge v. Eckhardt, 197 Ill.App. 302, it is declared:

"The jurisdiction of a court of a suit for divorce cannot be questioned in a subsequent proceeding by the party at whose request and upon whose testimony as to jurisdiction of facts such court found that it had jurisdiction, especially where such party has received the benefits of the divorce litigation and rights of others have accrued thereunder, it being immaterial whether the adjudication in the divorce litigation was procured through misrepresentation of facts or misrepresentation of the law."

Such is the rule as to parties to an action, and a person in privity with them who caused the same is likewise bound. 2 Freeman on Judgments, § 336. That is, estoppel and laches have been held to bind a personal representative of the party so affected. Patterson v. Weaver (Ala.Sup.) 114 So. 301; Snodgrass v. Snodgrass, 176 Ala. 276, 57 So. 474. And such is the estoppel as to invoking the question of the jurisdiction of the court where the action challenged was invoked or procured by fraud of a party in interest. Nichols v. Nichols, supra; Supreme Lodge v. Eckhardt, supra; Moor v. Moor, supra; Carlisle v. Carlisle, 96 Mich. 128, 55 N.W. 673.

A careful reading of this record convinces us that Fairclough actuated, dominated, participated, and procured the decree that by this suit is challenged as constituting a fraud as to the residence that vitiated the decree of divorce in the suit of St. Amand or St. Almond. The validity vel non of that decree affects other procedures in another state, on which the rights of Dorothy and her child Kingston (by Fairclough) are rested, by virtue of the second marriage in another state contracted by Dorothy and Mr. Fairclough, Jr., after that decree for divorce was rendered in Alabama. Not only did said Fairclough come to Alabama for the purpose of that proceeding, after assuring Dorothy that her marriage or temporary status with St. Almond was a nullity, but he caused the jurisdiction of the Alabama court to be invoked to the end of the rendition of the decree, and with a full knowledge of all the facts, thereafter, he remarried Dorothy in New York, and she bore him a child whose paternity he has consistently recognized, treating and regarding the mother as his wife and the child as his son. This action on his part was predicated on his guilty conduct in the premises, with full knowledge of facts and the legal effect or status superinduced, and in acquiescence of his guilty conduct advised, arranged, procured, financed, and was a beneficiary of the Alabama decree for divorce. When the Faircloughs came to Alabama, divorce was his object that he might remarry Dorothy. He had repeatedly assured her that her temporary association with St. Almond, by reason of her immaturity, or nonconsent, or whatever be the reason, was invalid under the law of New York or New Jersey. She was a passive agent or actor under his domination and control, subject to his wish, suggestion, or domination. His was the guilty knowledge of all the facts and the law in the premises and participated and directed to the end of the fraud he now seeks to uncover under other name and agency. He left his home on the 9th or 10th of January, 1923, for Birmingham, bringing Dorothy, after he had been advised by his friends or members of his family not to do so; his object was divorce against St. Almond.

Such was not Dorothy's intention or aim--it was subservience to his will and purpose of the husband she loved and trusted, by reason of their former marriage. She said in reply to the question:

"Now, Mrs. Fairclough, when you went down to Alabama, did you and Mr. Fairclough go down with the intention that you should sue for a divorce down there? A. Mr. Fairclough, Jr., had some scheme in his head, but what, I don't know.
"Q. Did Mr. Fairclough, Jr., of course, know about your marriage to Mr. St. Almond? A. Yes, sir.
"Q. And did he know the circumstances under which that marriage had taken
place? A. Yes, sir. "Q. Did Mr. Fairclough, Jr., say anything to you as to whether or not your marriage to St. Almond was a good marriage or not? A. Yes, sir."

Her position is further defined as follows:

"Q. Did Mr. Fairclough, Jr., make any statement to you as to whether or not your marriage to St. Almond was a good marriage? A. Yes, sir.
"Q. What did he say on that subject, and anything else? A. He said my marriage was invalid.
"Q. And did he say whether he knew anything about law himself? A. Yes.
"Q. What did he say on that subject? A. What subject?
"Q. As to whether or not he knew any law? A. He said he knew the law on marriage and divorce.
"Q. And did he tell you whether or not this divorce, that would be obtained in Alabama, would be a good divorce? A. Yes, sir.
"Q. Did you believe what Mr. Fairclough, Jr., told you? A. I did.
"Q. When he told you that your marriage to St. Almond was not good, did you marry him after that? A. Yes, sir.
"Q. Where? A. Harriman, N.Y.
"Q. And when you married him in Harriman, N.Y., did you or not believe what he said about your marriage to St. Almond being no good? A. I did.
"Q. Why did you go down with him to Birmingham, Ala.? A. Because I thought my second marriage was legal.
"Q. And did you go down there then and live in good faith with Mr. Fairclough, Jr.? A. I did.
"Q. Did you personally intend to work any fraud on St. Almond, or the circuit court of Jefferson county, Ala.? A. No; I did not.
"Q. Did Mr. Fairclough, Jr., at any time, tell you that you were working a fraud on Mr. St. Almond? A. Absolutely not.
"Q. Or that you were working a fraud on the circuit court of Jefferson county, Ala.? A. No."

And she then stated that she lived with him in Birmingham as husband and wife, confided, trusted, and loved him as her husband, and from that relation she bore him the son they called Kingston, whom he recognizes and admits as his child. She was asked and answered:

"Q. In your proceedings in Alabama--I withdraw that. Whose suggestion was it that you should sue Mr. St. Almond in Alabama, for a divorce? A. Mr. Fairclough, Jr.'s.
"Q. Did Mr. Fairclough, Jr., say that you could obtain a divorce from Mr. St. Almond, in the state of Alabama, on a 6

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  • Hahn v. Falce
    • United States
    • New York City Court
    • 5 d2 Março d2 1968
    ...case, its courts would permit such a collateral attack upon plaintiff's divorce as is made in this action' citing Fairclough v. St. Amand, 217 Ala. 19, 114 So. 472; Davis v. Davis, 255 Ala. 488, 51 So.2d 876; Hartigan v. Hartigan, 272 Ala. 67, 128 So.2d 725; Aiello v. Aiello, 272 Ala. 505, ......
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    • 17 d4 Abril d4 1930
    ...thereto to be paid by the county. Looking through mere form to substance, as it is the court's duty to do (Fairclough v. St. Amand, 217 Ala. 19, 114 So. 472), the major purpose of the bill is to enjoin the primary election, an election that is purely political, and the alleged threatened il......
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