Opinion
2 Div. 802.
October 12, 1922.
Appeal from Circuit Court, Marengo County; R.I. Jones, Judge.
George Pegram, of Faunsdale, and Craig Craig, of Selma, for appellant.
If the bill sets forth so much of the deed as is material, it is sufficient. Story, Eq. Pl. § 241; Daniell, Ch. Pl. (6th Am. Ed.) 367; Fletcher, Eq. Pl. Pr. § 99; 61 Ala. 432. A judgment or decree of a court of record may be impeached by an original bill on the ground of fraud perpetrated in the procurement thereof. Fletcher, § 956; 34 Ala. 455; 114 Ala. 642, 21 So. 534; 132 Ala. 127, 31 So. 498; 80 Ala. 22; 74 Ala. 604. Several fraudulent transactions alleged to have been committed by the same person or persons may be attacked in the same bill. 132 Ala. 107, 31 So. 524; 70 Ala. 108; 84 Ala. 600, 4 So. 725; 90 Ala. 497, 8 So. 52; 101 Ala. 15, 13 So. 343.
W. F. Herbert, of Demopolis, and Pettus, Fuller Lapsley, of Selma, for appellee.
When a bill makes an instrument a part of itself without setting forth the contents thereof or having annexed thereto a copy, it is bad on demurrer. 38 N.C. 531; 12 Pet. (37 U.S.) 218, 9 L.Ed. 1062; 85 Md. 531, 37 A. 18; 185 Mass. 223, 70 N.E. 47; Sims' Ch. § 306; 67 Ill. App. 678; 182 Ala. 243, 62 So. 511; 200 Ala. 529, 76 So. 855.
The appeal is from a decree sustaining demurrer to the bill.
1. The conveyances made the subject of the bill were sufficiently averred, and not required to be set out in hæc verba. Story's Eq. Pl. § 241; Daniell's Ch. Pl. (6th Am. Ed.) 376; Fletcher's Eq. Pl. Pr. § 99; 4 Encyc. P. Pr. 916; Sprague v. Shields, 61 Ala. 428, 432; Houston v. Williamson, 81 Ala. 483, 1 So. 193. See George v. Roberts (Ala. Sup.) 92 So. 1; Moundville Lbr. Co. v. Warren, 203 Ala. 488, 83 So. 479; Doullut v. Hoffman, 204 Ala. 33, 86 So. 73; Davis v. Campbell, 3 Stew. 319, 321.
2. The bill seeking relief for same cause from two or more conveyances or fraudulent transactions between the same parties as to the lands described in the bill does not render the bill multifarious, where the averments and prayer of the bill are not duplex, but sufficient and appropriate to a singleness of object and purpose. Belleview Cemetery v. Faulks, 198 Ala. 579, 73 So. 927; Webb v. Butler, 192 Ala. 287, 296, 68 So. 369, Ann. Cas. 1916D, 815; Norville v. Seeberg, 205 Ala. 96, 87 So. 164, 167; Wimberly v. Fert. Co., 132 Ala. 107, 31 So. 524; Florence Co. v. Hanby, 101 Ala. 15, 13 So. 343; Lyons v. McCurdy, 90 Ala. 497, 8 So. 52; Handley v. Heflin, 84 Ala. 600, 604, 4 So. 725; Johnston v. Smith, 70 Ala. 108.
3. When a judgment or decree may be attacked for fraud is a subject of recent discussion by this court. De Soto Cases, 194 Ala. 537, 69 So. 948; 188 Ala. 667, 65 So. 988; Sims v. Riggins, 201 Ala. 99, 105, 77 So. 393. That is to say, fraud in the procurement of a judgment, to be vitiating, must be in the very act of obtaining that judgment or in its concoction, and hence must be extrinsic or collateral to the matter or question which was tried and determined by the judgment in question and so challenged. And it was held in the De Soto Cases that equity will not annul a judgment at law because of the use of perjured testimony, and that misrepresentations by a party to the suit as to the merits of his cause do not amount to the preventive act contemplated by the rule that —
"When a party is prevented from discovering the defense by the act of the opposite party, unmixed with fault or negligence on his part, ordinary diligence is excused."
The instant case was not that of extrinsic fraud or misrepresentation, as acts that prevented the complainant from discovering the defense of the opposite party, but was a case of mistake of judgment (not of extrinsic fact) averred to have been entertained or acquiesced in by the complainant, as the complainant in the former suit, causing him to consent to or permit the former decree to be entered against him and from which he did not appeal. Mr. Pomeroy says of the subject or object where "there has been no fair adversary trial at law" that:
"A distinction is made between fraud, accident, mistake, and the like, relating to the subject-matter of the action, and similar elements relating to the conduct of the suit. Fraud relating to the subject-matter is not of itself sufficient ground for relief. Where it relates to the conduct of the suit, as where it prevents a party from asserting his rights, there is no fair adversary proceeding, and equity will interfere. The courts commonly speak of the former class as intrinsic, and of the latter as extrinsic, fraud, etc. Thus it is generally said that it is extrinsic fraud, mistake, and the like which are grounds for relief." 6 Pom. Eq. Jur. p. 1092; 2 Pom. Eq. Rem. § 648.
The fraud averred in the De Soto Case was of the intrinsic class — of the subject-matter of the suit at law by Hill — and it was held to afford no basis for relief. Such was the case made by the bill here, and was subject to the grounds of demurrer assigned.
The judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.