Dunklin v. Harvey

STONE, J. A decree, obtained without making those persons parties to the suit in which it is had, whose rights are affected thereby, is void as to those parties; and even a purchaser under it, having notice of the defect, is not protected by such a decree. — Story’s Eq. Pl. § 427. It is shown in the same author — section 426 — that the proper mode of impeaching a final decree for fraud, at the suit of a stranger, “is an original bill in the nature of a bill of review. There is no doubt of the jurisdiction of courts of equity to grant relief against a former decree, where the same has been obtained by fraud and imposition; for those will infect judgments at law, and decrees of all courts; but they annul the whole in the consideration of courts of equity.” The decree, and sale under it, which the present bill seeks to vacate, were obtained .in a suit in which Dunklin, as administrator of Sills, was sole complainant, and George Beese and Mary Beese, his wife, were the only defendants. Beese at no time had title to the land, and was not in possession; but Harvey had been in open, notorious possession, for nearly ten years, and, before the bill was filed, had obtained the legal title. He did not know of Dunklin’s suit, until after the sale under the decree. Dunklin, long before he filed his bill, knew that Harvey' was in possession, claiming ownership of the lands. Still, he bid off the lands at the sale, giving only one-twentieth of the price at which the lands were twice solcl; and had the title made to Mrs. Sills, widow of his intestate. The bill contains a strong, detailed state^ [182] ment of facts, showing Dunklin’s knowledge of Harvey’s interest ; and we discover no fact or circumstance of excuse or extenuation, in the slightest degree relieving him of the imputation that there was design in omitting the name of Harvey as a defendant. Yet, notwithstanding this strong array of charges, neither Dunklin nor Mrs. Sills, although personally served with summons, filed any answer to the bill in this case, but allowed decrees pro confesso to be entered up against them. On the decrees pro confesso, rendered on personal service against all the defendants, and on the record of Dunklin’s suit of foreclosure against Reese and wife, the present cause was submitted for decree, and was decreed finally. The decree in the foreclosure suit was in favor of Dunklin as administrator of Sills, against Reese and wife. It asserted and ascertained only two propositions that affected Sills’ estate: first, the amount due, principal and interest, from Reese to Sills ; second, that there was a vendor’s lien on the lands in controversy in this suit, for the payment of such ascertained debt. The record of the foreclosure suit, which was in evidence, proved that Harvey, complainant in this suit, was not made a party to that. Not being a party, and the title being in him, with a very strong equity in his favor, we hold that the material averments of this bill are sufficiently proved to meet the requirements of section 3391 of the Revised Code, and that the decree of foreclosure against Reese and wife was fraudulent and void as against Harvey, complainant in this suit. Dunklin, the administrator, complainant in the foreclosure suit, under the most favorable view for Mrs. Sills which the present record will permit us to take, acted as her agent in the purchase of the lands. He knew of the fraud — caused it to be perpetrated, against Harvey, in not making him a party to the foreclosure suit. Notice to him, in that transaction, was constructive notice to, Mrs. Sills, for whom he professed to act.-— Wiley, Banks & Co. v. Knight, 27 Ala. 336; Smyth v. Oliver, 31 Ala. 39; Mundine v. Pitts, 14 Ala. 84. We hold, that the decree and sale under said bill of Dunklin, adm’r, v. Reese, were fraudulent and void as against Harvey. — See Dufphey v. Frenaye, 5 Stew. & Por. 215; Phillips v. Threadgill, 37 Ala. 92; Ex parte Smith, 34 Ala. 455; Moore v. Clay, 7 Ala. 742; Hanrick v. Thompson, 9 Ala. 409; Thompson v. Campbell, at present term. There is no error in the record, of which appellant can complain, and the decree is affirmed.