Woodall v. Moore

Decision Date17 October 1891
Citation17 S.W. 268,55 Ark. 22
PartiesWOODALL v. MOORE
CourtArkansas Supreme Court

APPEAL from Phillips Circuit Court in chancery, MATTHEW T. SANDERS Judge.

Arthur B. Woodall, Mary E. Woodall and Willie N. Woodall, a minor by her next friend, Arthur B. Woodall, brought ejectment against the defendant, John P. Moore, to recover possession of a certain tract of land. The action was commenced on March 5, 1885. The complaint alleged that Arthur B. Woodall became of age on January 27, 1884, and Mary E. Woodall, July 3 1883.

The answer states that defendant had previously commenced suit in ejectment for the possession of this land, in which suit the plaintiffs herein, on their petition, were made parties defendant, denying defendant's title, and claiming title as heirs of their father; that such proceedings were had that, on the 6th day of June, 1883, it was decided that said lands were the property of this defendant and said Willie N Woodall, the defendant owning three-fourths and Willie N. Woodall owning one-fourth, and partition was decreed, and by said partition the lands in this suit were set aside to the defendant. This partition was afterwards confirmed, and writ of possession awarded the defendant for the lands. This judgment remains in full force and unreversed, and the defendant holds thereunder. A demurrer to the answer was overruled.

Plaintiffs moved for leave to file an amended complaint, which is as follows: Plaintiffs move that the cause be transferred to equity, and say that during their minority the defendant brought ejectment against their father's widow for the land mentioned in the complaint; that they intervened, and filed a cross-bill, and obtained the transfer of said case to the equity side. The defendant answered the cross-complaint, and a decree was rendered which, on appeal to the Supreme Court, was reversed and further proceedings had, in which a decree was rendered (Moore v. Woodall, 40 Ark. 42). In said proceedings the defendant claimed title under a commissioner's deed to one Thomas N. Jacks, under a decree rendered against said lands in the case of Delatour v. Woodall, and a deed from said Jacks to the defendant, which deed was never exhibited by the defendant. The decree in the case of Delatour v. Woodall was referred to, but never brought upon the record. That, after the judgment in the Supreme Court in the case of Moore v. Woodall, the plaintiffs appealed the case of Delatour v. Woodall to the Supreme Court, and at the November term of 1884 the decree was reversed (43 Ark. 521). That, if the decree in Delatour v. Woodall had been before the court in the case of Moore v. Woodall, it would have shown that the decree had been sold to Jacks, before the commissioner's sale, by indorsement on the margin of the record, and that Jacks, being a party to the sale, took no better title than the decree itself. That had the deed from Jacks to Moore been before the court, it would have shown that Moore was a partner of Jacks in his real estate speculations, and in his purchase of said decree, and stood in no better position than said Jacks, and that the reversal of said decree carried with it the extinguishment of all title and claim of said Jacks and Moore. That the plaintiffs have learned, since the decree in Moore v. Woodall, and since the partition therein, that the bid by Jacks of $ 650 for the land was not paid to any commissioner, but was reserved by Jacks as the owner of the decree, and only the excess was paid over to the guardian of the plaintiffs. That plaintiffs did not know until since the decree that Jacks was the owner of the Delatour decree. That nowhere in the pleadings of the defendant Moore does he state that Jacks or himself were strangers to the record, or innocent purchasers for a valuable consideration, and that the truth is that Jacks paid no money to the commissioner at the time of his purchase, and to allow the defendant to hold title after the reversal of the decree would be a fraud upon the rights of the plaintiffs. That defendant had been in possession since January 1, 1884, and the rental value of the premises is $ 600 per year. This rental value ought to be set off against the defendant's lien for taxes declared by the decree. The plaintiffs therefore pray that the decree in Moore v. Woodall be reviewed and reversed, or that the defendant be restrained from pleading the same in bar of plaintiff's recovery, and for judgment for possession, with all other proper relief.

Defendant moved to strike out the amended complaint because it was a bill of review, and no leave had been obtained from the court to file it. The motion was sustained. Judgment was rendered for defendant. Plaintiffs have appealed.

Judgment affirmed.

U. M. & G. B. Rose and John C. Palmer for appellants.

1. The amended complaint shows a good cause of action. The reversal of the decree under which Jacks purchased avoids the sale. Freeman on Ex. 347; 47 Ark, 229. The rule extends to the assignee of the judgment. The decree in Moore v. Woodall does not conclude plaintiffs, because procured by fraud. By suppressing facts in his knowledge, which he was bound to communicate, he secured a decree against infants of tender years, to which he was not entitled. Freeman on Judgments, secs. 491, 493; Bigelow on Fraud, 2d ed., 92; 47 Ill. 216; 24 La. An., 48; 2 Story, C. C., 75. No leave was necessary to file the bill. 2 Dan., Ch. Pl. and Pr., 4th ed., 1584; Story, Eq. Pl., sec. 427. But plaintiffs were all minors when the decree was rendered, and they had the right to impeach it before or after majority, without leave granted. 1 Dan., Ch. Pl. & Pr., 4th ed., 164; Freeman on Judg., sec. 484a; 2 Barb., Ch. Pr., 211; 17 Ohio St. 485; 89 Am. Dec., 190, note; 74 Am. Dec., 179.

2. Laches are never imputed to infants. 43 Ark. 522; 24 id., 371; id., 431; 39 id., 235. And these infants were within the saving clause of sec. 5184 of Mansf. Digest. 1 Dan., Ch. Pl. & Pr., 4th ed., 165; 17 Ohio St. 485; 89 Am. Dec., 185, note. See 10 Bush (Ky. ), 61. The right to file either an original bill or bill of review was not taken away by the statute. 36 Ark. 532; 33 id., 162.

James C. Tappan, John J. Hornor and James P. Clarke for appellee.

The amended complaint was a bill of review and properly dismissed. It was filed to obtain a reversal or alteration of a decree in a former suit between the same parties, and hence a bill of review. Am. & E. Enc. Law, title, "Bill of Review," 1 and notes. There are but two grounds for a bill of review. 1. Error in law apparent on the face of the decree. 2. New facts discovered since, etc., and which could not possibly have been used at the time when the decree passed. Dan., Ch. Pl. & Pr., 3d ed., pp. 1630-1-2. Before a bill can be filed on the second ground leave must be had. Id., pp. 1637-8. The granting of it lies in the sound discretion of the court. Story, Eq. Pl., sec. 417, and note 1; 36 Ark. 532. The reservation in sec. 5184 applies only to infant defendants. Dan., Ch. Pl. & Pr., p. 72; 5 Sneed, 129; 6 Coldwell, 619; 4 Monroe (Ky.), 255. The infants here were plaintiffs. 51 Ark. 368. A decree that binds adults binds minor plaintiffs. 1 Head, 484; 1 Herm. on Est. & Res Ad., 164; 8 Iowa 17; 43 id., 22; 1 Dan., Ch. Pl. & Pr., 71-73; Mansf. Dig., secs. 4955, 5184.

OPINION

HEMINGWAY, J.

A defense to the original complaint was sufficiently set out in the answer, and the demurrer to it was. properly overruled.

The plaintiffs filed an amended complaint seeking to review a decree upon which the defendant relied as confirming his title against them, but the court struck it from the files and refused their application for leave to file it. All questions presented by the appeal grow out of the court's. action in this regard.

The question whether a bill of review can be filed without leave has been elaborately discussed in the briefs, and many authorities cited as bearing upon it. But we do not see how its determination can aid to a conclusion in this cause. For if leave was necessary, and the complaint disclosed any right of review, the court erred in refusing the leave; and even if leave was not necessary, but the complaint showed no right of review, the court's action was not prejudicial. So that the sufficiency of the complaint to entitle the plaintiffs to review the judgment in their former proceedings for review is the question on which our conclusion depends.

It is insisted that the complaint was sufficient as to all the plaintiffs, first, as showing fraud in obtaining the judgment attacked; and, second, as showing that said judgment was rendered against the plaintiffs while they were infants, and while they were ignorant of facts that would have resulted in a different conclusion if brought to the...

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