Quick v. McDonald
| Decision Date | 13 May 1926 |
| Docket Number | 4 Div. 274 |
| Citation | 108 So. 529,214 Ala. 587 |
| Parties | QUICK et al. v. McDONALD et al. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Geneva County; H.A. Pearce, Judge.
Bill in equity by Virginia Quick, Emma Merritt, and Delia Carr against Mollie McDonald and A.L. McAllilly. From a decree sustaining demurrer to the bill, complainants appeal. Affirmed.
Mulkey & Mulkey, of Geneva, for appellants.
Carmichael & Tiller, of Geneva, for appellees.
The bill is for the sale of lands for division among tenants in common. Complainants, and one respondent, claim title as the heirs and next of kin of T.J. Dickson, deceased.
A.L McAllilly is made respondent for the purpose of removing an alleged cloud upon complainants' title held by him ousting his possession, and calling him to account for rents and waste. Sandlin v. Anders, 210 Ala. 396, 98 So 299. The cloud upon title complained of consists of proceedings in the probate court to set apart the lands as the homestead of S.A. Dickson, the widow of T.J. Dickson, deceased, followed by a warranty deed from the widow to McAllilly.
The proceedings to set apart the homestead are assailed for fraud in the procurement of the orders and decrees to the end of vesting the absolute title in the widow. These proceedings are made exhibit to the bill, and show a petition in due form by the widow for setting apart the homestead without administration, under Code, § 7948, the appointment of commissioners, their report in due form showing the property described was the homestead of decedent at the time of his death, the only real estate owned by him, less than 160 acres in area, and of the appraised value of $2,000, that the deceased left no minor children, and setting the same apart to the widow as exempt from administration. No exceptions being filed, a decree of confirmation, reciting the jurisdictional facts, ordering that the property be set aside to S.A. Dickson, the widow, and that the title vest absolutely in her, was entered. Code, § 7951.
The fraud upon which it is sought to impeach these proceedings, briefly stated, is: That the lands, at the time of the husband's death, were of the full value of $5,000; that, at the suggestion of McAllilly, the widow filed her petition, falsely and fraudulently alleging the property did not exceed in value $2,000; that both the widow and McAllilly knew the value of the property was greatly in excess of the exemptions allowed by law, and the proceedings were had with the fraudulent purpose on the part of both to acquire the absolute title to the lands by proceedings based upon false and fraudulent averments of jurisdictional facts, leading the court to believe it had jurisdiction in the premises. It is further averred the complainants had no notice of the proceedings; and that soon thereafter the widow conveyed the lands to McAllilly.
The appeal is from a decree sustaining a demurrer to the bill. The bill is framed in view of the doctrine announced in Keenum v. Dodson, 212 Ala. 146, 102 So. 230. In that case the fraud consisted in the false allegation that decedent left no minor children, resulting in a decree vesting the absolute title in the widow to the exclusion of minor children not represented in the proceedings. But the decision is based upon the ground of fraud in the procurement or concoction of the decree, in that the jurisdiction of the court was invoked by false and fraudulent allegation of a jurisdictional fact. The same case points out that a false averment of the quantity of the lands as being within the area to which the statute applies is jurisdictional, and overruled Douglas v. Bishop, 201 Ala. 226, 77 So. 752, so far as in conflict on that point.
It is equally clear that the value of the lands, not exceeding $2,000, is also a jurisdictional fact, to be averred in the petition and determined in the proceedings as a condition upon which the decree vesting an absolute title is based. The statute so declares. Code, § 7951.
These several jurisdictional facts, being brought within the lis pendens, are adjudicated by the court; and, while the decree remains unreversed on appeal, and not vacated by direct proceeding in equity, it cannot be assailed collaterally.
Proceedings of this sort deal, not with transactions between parties themselves, nor alleged transactions inter partes, but with legal rights growing out of relationship to the subject-matter, law-made rights, or alleged rights. When such cause of action is concocted by fraudulently setting up the existence of conditions which are known not to exist, the law is made the instrument of fraud. The suit itself is the fraudulent transaction. There is fraud in the procurement of the decree. An element of public policy is involved when the law which creates the right of action is itself made the instrument of fraud.
When, as here, the proceeding is in rem, the party injured having no notice thereof, and not wanting in diligence under the circumstances, a case is made for equitable relief under the authorities cited in Keenum v. Dodson, supra. Lester v. Stroud, 212 Ala. 635, 103 So. 692.
In dealing with the question of value in homestead proceedings, it must be noted that value is usually a matter of opinion, and some margin must be allowed for bona fide differences. Special conditions, such as the fluctuating values of lands in 1918 and 1919, are proper considerations.
The fraud available in equity to overturn judgments at law must be actual fraud. There is no want of averment of actual fraud in this bill. That the parties promoting the proceedings knew at the time the value of the property was greatly in excess of the exemptions, and had the intent to obtain title through court proceedings known to be a fraud upon those holding the lawful title, negatives any idea of bona fide error of judgment on the question of value.
Among the grounds of demurrer addressed to the bill was failure to aver any fraud or collusion on the part of the commissioners appointed to appraise the property. The law requires the commissioners to be disinterested householders or freeholders,...
To continue reading
Request your trial
-
Williams v. Overcast
...212 Ala. 635, 637, 103 So. 692; Bedwell v. Dean, 222 Ala. 276, 132 So. 20; Jones v. Hubbard, 208 Ala. 269, 94 So. 167; Quick v. McDonald, 214 Ala. 589, 108 So. 529. In case there is no fraud averred that entered into and vitiated the decree rendered as a fraud on the jurisdiction of the cou......
-
First Nat. Bank v. Love
...v. Duffin, 158 Ala. 318, 48 So. 507; Washington v. Norwood, 128 Ala. 383, 30 So. 405, or in other instances referred to in Quick v. McDonald, 214 Ala. 587, 108 So. 529. and unless the creditors exercise the election within the time required, the trustee is holding the property in trust. Wha......
-
Wright v. Fannin
... ... v ... Gadsden-Ala. C. L. Co. et al., 182 Ala. 284, 62 So. 75; ... Long et al. v. Brown et al., 206 Ala. 154, 89 So. 614; ... Quick et al. v. McDonald et al., 214 Ala. 587, 108 So ... The ... validity of the decree rendered, vesting the title absolutely ... in the ... ...
-
Brasher v. First Nat. Bank
... ... Williams v. Overcast et al., ... 229 Ala. 119, 123, 155 So. 543; Keenum et al. v. Dodson ... et al., 212 Ala. 146, 102 So. 230; Quick et al. v ... McDonald et al., 214 Ala. 587, 108 So. 529 ... In an ... adversary proceeding, where the parties are proceeding at ... ...