McDowell v. Morrell

• Decision Date: 30 September 1880
• Citation: 73 Tenn. 278
• Parties: B. G. MCDOWELL, Guardian, v. N. O. MORRELL et al.
• Court: Tennessee Supreme Court

73 Tenn. 278

B. G. MCDOWELL, Guardian,

v.N. O. MORRELL et al.

Supreme Court of Tennessee.

September Term, 1880.

FROM SULLIVAN.

Appeal from the Chancery Court at Blountville. H. C. SMITH, Ch.

W. D. HAYNES and M. L. BLACKLEY for complainants.

VANCE & WOODS and N. M. TAYLOR for defendants.

COOPER, J., delivered the opinion of the court.

The chancellor sustained a demurrer to the bill, and the complainant appealed.

It will simplify the case to state historically the facts as they may be gathered from the bill. In December, 1865, Toliver Bolin recovered a judgment before a jusiice of the peace against Russell Peters and John Peters for $142.80 and costs. In the same month, one Elizabeth Mahaffy recovered a similar judgment against the same parties for $141.65. On the 15th of January, 1866, John R. Dulaney recovered a similar judgment against John Peters for $12. These judgments were shortly afterwards assigned to the defendant, N. O. Morrell. On the 20th of November, 1865, John Peters executed his note to N. O. Morrell, payable three months thereafter, for $150. In August, 1865, John Peters conveyed to his wife, Nancy Peters, a tract of land, his only property. In March, 1866, N. O. Morrell filed his original bill against John Peters and Nancy his wife, and others, attaching the land conveyed by Peters to his wife, and seeking to subject the land to the satisfaction of the judgments and notes described, upon the ground that the conveyance was intended to delay creditors. Such proceedings were had in the cause that, “on the -- day of ______ 186-,” a decree was rendered in favor of Morrell setting aside the sale and ordering the land to be sold in satisfaction of the complainant's demands. “There have been.” adds the bill, “various and numerous orders and decrees entered and made in said cause.” The bill also shows that John Peters was represented in that suit by counsel “having charge of his case in said cause.” In March, 1877, upon an inquisition of lunacy then had, John Peters was found by the jury to be a lunatic, and to have been so as far back as 1856, without sufficient mental capacity to manage his business, or make binding contracts. In April, 1877, complainant, B. C. McDowell, was appointed guardian of the person and property of John Peters. The present bill was filed, February 8, 1878, by leave of the court in the previous cause, to set aside the decrees therein for fraud, and to review those decrees for errors of law, and upon newly discovered testimony.

The allegations of the bill are that Mahaffy lost two horses, and Bolin one horse by raiders in the latter part of the late war; that they conspired with Morrell to charge Russell Peters, a son of John Peters, with having taken the horses, and threatened to have him arrested unless the father would pay for the horses; that the notes mentioned were executed accordingly, one of the notes being made payable to Morrell for his services; that Morrell had paid nothing for the other claims but is prosecuting them for the benefit of Mahaffy, Bolin and Dulaney; and that the suits before the justice were not defended. The bill further alleges that at the dates of the execution of the notes, the recovery of judgments, the conveyance of his land to his wife, and the pendency of the chancery suit, John Peters was of unsound mind, incapable of contracting, and incompetent to defend suits, or to be of aid to counsel, to instruct them as to evidence, or in any way to protect his rights and interests. It is further alleged that said Peters was so entirely void of understanding, that he had no knowledge of the commencement of, or pending the chancery suit of the fact that he was incompetent to transact business, or that he ever had been under the control of a guardian, or that there were numerous witnesses by whom his imbecility could be established, and all of which was unknown to the counsel having charge of his case in said cause, and which evidences had not been discovered until said final decree, and until they were made known by an acquaintance of the parties.

To sustain an original bill to set aside judicial proceedings for fraud, there must be the averment of such facts as, if found, would show a meditated and intentional contrivance by one or more of the parties litigant to keep the complainant and the court in ignorance of the real facts touching the matters of litigation, whereby a wrong conclusion has been reached, and positive injury done to the rights of the person complaining. The fraud must occur in procuring the judgment, and consist, as a general rule, in something not known to the opposite party at the time, and for not knowing which he is not chargeable with neglect or inattention. 1 Sto. Eq. Jur., 252 a. There must appear, it would seem, on the part of the person charged with the fraud, not the mere assertion of rights or their earnest prosecution, but a mala mens, an intentional and studied design, carried into action, to deceive and defraud. Patch v. Ward, L. R. 3 Ch. App., 203; Smith v. Harrison, 2 Heis., 230. It will not do, of course, merely to charge that the decree has been fraudulently obtained, for that would only be the allegation of a conclusion which the party himself is not permitted to draw. Nor will it do to allege facts that are merely in conflict with the conclusion reached in the judgment or decree, or tending to sustain the contention of the unsuccessful party. For this might be done in any case in which there was opposing testimony. Few contested cases could escape a re-hearing upon an original bill in the nature of a bill of review, if such averments alone would suffice.

Tested by these rules, the present bill cannot be sustained as an original bill for fraud. Not a single fact is stated which...