Cox v. Johnson

80 Ala. 22 | Ala. | 1885

SOMERVILLE, J.

Taking as true the facts stated in the bill, as we are compelled to do on demurrer, the defendant can not be permitted to found any right on, or obtain any protection from the decree of the Chancery Court, rendered October 7th, 1881, purporting to relieve the complainant, Mrs. Johnson, of the disabilities of infancy or non-age. The Chancery Court, in affording such relief to minors, exercises a limited jurisdiction, or special statutory power, which stands on the same footing with the proceedings of courts of limited and inferior jurisdiction. Cohen v. Wollner, 72 Ala. 233; Ashford v. Watkins, 70 Ala. 156. And decrees or judgments rendered by courts of this class are exempt from the rule, applicable only to courts of general jurisdiction, that parol evidence is inadmissible to contradict the record of the court reciting the appearance of the parties in person or by attorney, in the case of domestic judgments, even though such unauthorized appearance is a fraud or a forgery, uuless on bill filed by the defrauded party, properly framed, with the view of impeaching such record. Freeman on Judg. (3d Ed.), § 134, note 1; Ferguson v. Crawford, 70 N. Y. 253; s. c. 26 Amer. Rep. 589. It is permissible to attack such judgments, even collaterally, by extrinsic proof showing that the recitals of notice or appearance were in fact false, and that, for this reason, the court rendering the judgment had no jurisdiction over the parties, which is equally essential with jurisdiction over the subject-matter in all proceedings not purely in rem.

The bill alleges that the petition to remove the complainant’s disabilities of non-age was prepared collusively by the attorney of the defendant, who was her guardian and her step-father, and was signed in hep name and" filed in the chancery court, without her knowledge or consent. Complainant was then about ninteen years of age, and was known to her guardian to be on the eve of impending marriage to her co-complainant, who is now her husband. The defendant had been her guardian for about fourteen years, in the possession and management of all her property, and largely indebted to her. The motive for a speedy settlement, hastened in time to escape.a rigid overhauling of his accounts by the intended husband, was very strong. The action of the Chancery Court was needed to sweep away the only obstruction to this plan, and the bill alleges that this was obtained without the complainant’s desire, knowledge or consent, that she knew nothing of its legal effect when first informed of it, and that the purpose of her guardian in proving it was to cover up his defalcations and defraud her of her property.

The statute requires that the minor should have signed the petition in person, and that her guardian should'join with her. Code, 1876, § 2735, sub-div. 3. If this was not done the court had no jurisdiction to render the decree relieving complainant of her disabilities of infancy ; the decree itself would be fraudulent, and, whether it sought to be regularly impeached or opened in this bill or not, a court of equity will preclude the defendant from taking any advantage of such a judgment, of which he can not in good conscience and all honesty avail himself. As said by this court in Lee v. Lee, 55 Ala. 590, 602, the court, even without vacating the judgment, “may prevent the parties guilty of the fraud from taking any benefit under the judgment or decree, either as a ground of relief or defense, and leave its vacation to the tribunal pronouncing it.” Freeman on Judg. (3d Ed.) § 134, p. 148, note.

In this aspect of the .case, the settlement made in the Probate Court of Autauga county, or rather what purports to be such, by the defendant, -was void for want of jurisdiction in that court. It was made during the minority of the ward, and before the resignation of the guardian, and the ward was not represented by a guardian ad litem. The case of Glass v. Glass, 76 Ala. 368, is conclusive on this point. And it becomes immaterial to enter upon any consideration of the inquiry as to what the rule would be if the bill were filed to correct errors of law or fact in the settlement of a guardian’s account, under sections 3837-3839 of the present Code. Both the original and the amended bills aver facts which show that the entire settlement was a void proceeding, without the jurisdiction of the court undertaking to make it.

The suit then becomes one simply to remove the settlement from the Probate to the Chancery Court, and to set aside certain conveyances of property made by the ward to her guardian, during her minority, at a grossly inadequate price, and while the trust relationship of guardian and ward was still existing. The mere statement of the case shows that the bill is neither multifarious nor otherwise wanting in equity. Voltz v. Voltz, 75 Ala. 555; Noble v. Moses 74 Ala. 604. Nor can there be any question whatever that it was filed in time, as the suit was instituted within less than a year after the ward became of age, and so soon as she was apprised of the fraud that was practiced upon her.

The demurrer to the bill was properly overruled and the decree is affirmed.