On the 24th day of March, 1894, by consent of parties, a decree was entered by the chancery court of Escambia county, in vacation, upon a submission duly made by the parties under the statute and 80a Rule of Chancery Practice, for a final decree in vacation, in favor of Morris Adler against the VanKirk Land and Construction Comрany, foreclosing a mortgage upon a large body of lands, executed by that company to Worthington, Elliott & DeBardeleben, and by them assigned, together with the demands thereby secured, to said Adler. After the register, proceeding to the execution of the decree, had advertised the lands for sale, on the 9th day of February, 1895, the Land and Construction Company filed the bill in this cause, seeking to review the proceedings had, and the decree rendered in the foreclosure suit, and to vacate and set aside the decree, and for an accounting, and, as an incident to the main relief prayed an order temporarily restraining the sale under the decree.
The bill is essentially a bill of review, based upon alleged newly discovered evidence, which, it is the theory of the bill, shows that, by false and fraudulent representations made several months prior to the rendition of the consent decree, upon an accounting and settlement then had between the partiеs touching the demands secured by the mortgage, the Land and Construction Company, relying upon such representations and believing them to be true, had been induced to admit and to bind itself to pay an amount largely in excess of what was in fact owing by it upon those demands,which amount, by the consent decree, the company was оrdered to pay in redemption of the mortgage. The chancellor overruled a motion interposed by the defendants, the appellants here, to dismiss the bill for want of equity; and that ruling is the only error assigned.
The argument in support of the motion and against the ruling of the chancellor is, that, while in the bill it is averred that the fraud allegеd was- not discovered by
The doctrine is now too well settled to admit of controversy, and is upheld by a sound and conservative public policy, that, to maintain a bill of review upon newly discovered evidence, the matter must not only be new, that is, ascertained or discovered after the court has passed its decree, but it must also affirmatively appear, by appropriate averments and by proof, that the party complaining, by the use оf reasonable diligence, could not have, prior to the decree, ascertained or discovered it. If such matter was known to him before decree entered, and he failed to avail himself of it, or if unknown, but by the exercise of proper diligence, he could have known it, the court will not afford him relief. A wrong may have been inflicted, rather than a right enforced, by the decree ; yet, according to the uniformly declared policy of the court, it is better that such wrong should go unredressed, than that the solemn decree of the court should be set aside at the suit of a party who, having had his day in court, failed, by reason of his own negligence or laches, to timely present the matter of his defense for adjudication. Diligence in this respect is of the essence of the equity of the bill; laches or negligence is as fatal to relief as the actual absence of a matter of defense. In Young v. Keighley, 16 Ves. 348, Lord Eldon says : "The question always is, not what the plaintiff knew, but what, using reasonable diligence, he might havе known;” and this court, in Banks v. Long,
Turning to the bill, an examination of its averments leaves it free from doubt that it wholly fails to show that the complainant made any effort whatever, prior to the rendition of the consent decree, to ascertain for itself the true status of the accounts between it and Worthington, Elliott & DeBardeleben, secured by the mortgаge, or to ascertain whether the representations made upon the settlement were true or false ; nor does the bill contain any averment that shows or even tends to show that such effort, if made, would have been unavailing and fruitless. The settlement was effected in July, 1893, more than eight months before the agreement was madе for the consent decree, and before that decree was entered and payment of the amount then agreed upon as due from the company to Worthington, Elliott & DeBardeleben, was extended until the 27th day of December, 1893, the company executed to them its several promissory notes in evidence of thе indebtedness. Not only is this true, but it is fair to presume from the averments of the bill and the exhibits thereto, that, prior to the
The only pretense of an excuse offered in the bill for this remarkable supineness is, that the complainant, its officers and agents, relied implicitly on the representations, which are-alleged to have been made by a member of thе firm of' Worthington, Elliott & DeBardeleben, believing them to be true, and not having any reason to suspect that they were untrue. The only relation shown by the bill to have existed between the complainant and Worthington, Elliott & DeBardeleben is that of mortgagor and mortgagee. Such relation is, so far. as the question under consideration is cоncerned, one merely of debtor and creditor, the creditor holding the mortgage as security for his debt; this relation is not one of a confidential character. — Paulling v. Creagh, 54 Ala.
Whether the relation of trust and confidence, if it had existed between the complainant and Worthington, Elliott & DeBardeleben would have relieved the complainant from its laches, it is not material here to consider ; for no such relation existed between them, and the complainant, in relying with implicit confidence upon the representations made to it, did so at its peril. To admit of such an excuse would be, in effect, to destroy the principles so well established and so essential to the conservatism of the law.
It is disclosed by the bill that the decree complained of was rendered in vacation upon a submission had in vacation. The Code authorizes the rendition of final decrees at any time, whether in term time or vacation, by consent of parties or their counsel. — Code of 1886, § 3593. The bill shows that the decree was rendered by consent of parties, and the copy of the decrеe exhibited with the bill, shows that Rule 80a of Chancery Practice was strictly complied with. The decree was, therefore, of the same validity as' if it had been rendered in term time.
It is averred in the bill that the decree in the foreclosure suit was “solely upon the consent of the parties to said cause, and that no judicial ascertainment of the facts stated in the bill filed in said cause was ever had ;” and that ‘ ‘said consent decree does not and did not constitute an adjudication of said cause.” The. purpose of the pleader, in making this averment was, doubtless, to state, as a fact, that the decree was merely a consent decree, a decree agreed upon by the parties, and upon
Whatever еffect such a conclusion, if logically deducible from the premises stated, would have upon the rights of the parties in this cause, under the averments contained in the bill, it is not necessary to consider ; and this because the conclusion is a non sequitur. In the absence of fraud in its procurement, and between parties sui juris, who are competent to make the consent, not standing in confidentia] relatiоns to each other, a judgment or decree of a court having jurisdiction-of the subject-matter, rendered by consent of parties, though without any ascertainment by the court of the truth of the facts averred, is, according to the great weight of American authority,' as binding and conclusive between the parties and theiiA privies аs if the suit had been an adversary one, and the conclusions embodied in the decree had been rendered upon controverted issues of fact and a due consideration thereof by the court. — Freeman on Judgments, § 330 ; 2 Black on Judgments, § 705 ; Gifford v. Thorn, 9 N. J. Eq. (1 Stock.), 722; French v. Shotwell,
The fact that the decree in the foreclosure suit was rendered by consent of pаrties does not, therefore, detract from its dignity, or lessen its conclusiveness, as an adjudication between the parties. Not only is such its effect, but its consent is a waiver of error, precluding a review of the decree upon appeal and,, as a general rule, upon a bill of review. — Thompson v. Maxwell, 95 U. S. 391; Nashville &c. R. R. Co. v. United States,
As an original bill, or as an original bill in the naturе of a bill of review, seeking to impeach the consent decree for fraud, it is equally without equity, for the reason that the fraud charged does not relate to the procurement of the decree, or of the consent upon which it was based, but to the accounting and settlement had between the parties in July, 1893, and to the consideration of the notes which wex*e executed in pursuance of the accounting and settlement. If the allegations of the bill charging the fraud were all true, they would have constituted pro tanto a defense to any suit brought for the collection of the notes or of the debts evidenced thereby, and, therefore, any suit brought to fоreclose the mortgage. As a legal question, the fraud charged-was xio more than axxy other defexise the complainant might have had to the foreclosure suit; and to allow relief to be granted in this case upon such allegations, would open the doors of a court of equity to every defendant who has, by negligent failure to interpose his defense, suffex*ed an unjust judgment or decree to be rendered against him. As we have seen, this would be contrary to the well settled rules of that court. To give equity to such a bill it must be clearly shown that the decree, or the consent upon which it was based, was procured by fraud; that the fraud was practiced in thе act of obtaining the decree or the consent therefor. The principle is too well settled to admit of controversy. In Stratton v. Allen, 16 N. J. Eq. 231, the chancellor says : “It seems to be conclusively settled, that a judgment can only be impeached in a court of equity for fraud in its concoction;” and in United States v. Throckmorton,
In any aspect in which the bill may be considered, it is without equity, and the chancellor should have sustained appellant’s motion and dismissed the bill.
The statute undеr which this appeal is taken provides that “if the decree of the chancellor be reversed, the court shall render such decree as should have been rendered by the chancellor.” It is, therefore, mandatory upon this court, to render a decree, reversing the decree of the chancellor and dismissing the bill for want of equity.
Reversed and rendered.