| Ala. | Dec 15, 1879
A party sought to be concluded by a judgment or decree, must be shown to have had notice or knowledge of the suit, actual, or, in some cases, constructive ; and if this notice or knowledge be wanting, the record of recovery has no binding effect. This rests on the plain principle of right, that no man shall be deprived of his goods, until an opportunity has been afforded him of making defense.
Under our system, the return of a sheriff, or other ministerial officer, asserting that service was made, is evidence of the fact; becomes a part of the record, and, to that extent, will uphold the most solemn or momentous judicial proceedings. The sheriff, or, in case of his incompetency to act, the coroner acting as sheriff, is a sworn officer ; and the truth of his returns is guaranteed by the sanctions of his official oath. Hence, it is held that, in the performance of duties the law casts on him, he is acting under oath. A return indorsed on process by such officer, in the line of his official duties, is a sworn affirmation that it is true; and, until set aside under the authority of the court, or disproved in a proper case, it imports verity, as absolutely as any other matter which goes to make up the records of the court. — 2 Brick. Dig. 456, §§ 340, 341. In Brown v. Turner, 11 Ala. 752" court="Ala." date_filed="1847-01-15" href="https://app.midpage.ai/document/brown-v-turner-6503299?utm_source=webapp" opinion_id="6503299">11 Ala. 752, it was said : “ The court must, of necessity, give credence to the acts of its own officers; otherwise, it would be impeded, at every step, by the trial of collateral issues.” In Martin v. Barney, it was said : “ It is clear that the return of the sheriff on the wrrit is, in its nature, both the highest and best evidence of execution.”
This evidence, however, is not conclusive, except that it can not be impeached, when it comes up collaterally and incidentally. On a direct proceeding for the purpose, its truth may sometimes be controverted. Thus, if the service
The tendencies of the testimony, in the present record, make a case of extreme hardship, if not oppression, on the complainants in the court below. We do not hesitate to declare our conviction, that Mrs. Wilson, acting for her absent husband, agreed with Colley, the complainant in the first and second suits, on terms of compromise and settlement, by which she agreed to pay, and Colley agreed to receive, twenty-five hundred dollars in Confederate treasury-notes, in full payment of the claim the latter held against Wilson, unpaid purchase-money of the land; that, in pursuance of this agreement, Mrs. Wilson paid Colley two thous- and dollars, and that Gafford. paid the residue, at the request of Mrs. Wilson. The weight of the testimony shows that Gafford was repaid this money so paid by him, in the cotton which Mrs. Wilson delivered to him. We think Gafford fails to show that Wilson’s notes were traded or transferred to him. On the contrary, we think the notes were fully paid to Colley, and that the only claim he had was to have the costs of the then pending suit paid by Wilson. Saving this claim for .costs, which was at that time necessarily a small sum, it was the right and privilege of Wilson, and of those standing in his right, to have the notes delivered up and cani celled. Gafford, bv paying the balance of the debt to Colley, at the request of Mrs. Wilson, acquired no right to Colley’s lien on the land as a vendor.— Chapman v. Abrahams, 61 Ala. 108" court="Ala." date_filed="1878-12-15" href="https://app.midpage.ai/document/chapman-v-abrahams-6510151?utm_source=webapp" opinion_id="6510151">61 Ala. 108. It is thus shown there was a good and valid defense to Colley’s bill to enforce a vendor’s lien against the lands. But the proof which establishes the existence of a defense to that suit, also shows that Mrs. Wilson had full knowledge of its existence; for she made the compromise, made the .larger payment herself, and procured the residue to be made through Gafford. Why, when pressed with the effort to revive the original suit in 1867, she did not assert this defense; why she did not inform her counsel of its existence,
But the other material point of inquiry is, have the complainants satisfactorily proved that the coroner did not in fact serve the process on them. The proof of this averment, though negative in its character, rested on them. The only testimony offered in favor of this averment, is that of Mrs. Wilson and her two sons; all complainants in the present suit. They all swear that process was served on them in 1867, but not in 1868. The sons, being infants, testify that they did not, and do not, know the object or purport of the process that was served on them. Neither witness states any fact or circumstance, in aid of his testimony, that was calculated to impress its date on their memories. Six or seven years had intervened between the date of the coroner’s return, and the giving of their testimony. In the absence of some attending circumstance to fix the attention, associated in the memory with the transaction itself, there is no subject on which human recollection is more frequently at fault, than the particular date of past occurrences. Against this uncorroborated proof is, first, the sworn return of the officer, made in twenty-four hours after the alleged service; second, that the suit was prosecuted to a final decree, and the lands sold under that decree; third, the unassailed proof of two or more witnesses, that Mrs. Wilson did have knowledge of the suit while it was pending; fourth, the undisputed fact that first Gafford, and then Dunklin, took possession of the land, and occupied it in their own right, and with the knowledge of complainants, for seven or more years, before the present bill was filed; fifth, that Mrs. Wilson not only made no defense to the suit, but actually bargained away her right to make defense, and, after the end of the suit, and sale of the land under the decree, she accepted a conveyance from Dunklin, who thereby consummated and performed the agreement by which Gafford had purchased off her right of defense. We do not think the proof in this case is sufficient to overturn the presumption in favor of the correctness of the coroner’s return. To allow it to do so, would be to accord too little solemnity to judgments' and decrees of the courts of the country. It is the interest of the commonwealth that there be an end of litigation ; and when judgment has been pronounced which is not reversed on error, a re-trial should not be had for light or trivial causes, no matter how unjust the result may be shown to
But there is another principle that is fatal to the present case, even if the children and heirs of Mr. Wilson are not concluded by the decree. Mrs. Wilson is co-complainant with them. As to her, there is overwhelming proof that she had full knowledge of the defense, and of the pendency of the suit, and that she bargained away her right to make defense. When co-complainants claim under the same right and title, and the record shows that one or more of them can not recover, this is fatal to the whole suit. — Schaffer v. Lavretta, 57 Ala. 14" court="Ala." date_filed="1876-12-15" href="https://app.midpage.ai/document/schaffer-v-lavretta-6509587?utm_source=webapp" opinion_id="6509587">57 Ala. 14.
If the present record showed that the heirs are entitled to relief, and that the widow is alone estopped by the decree, we would reverse and remand the cause, that the pleadings might be amended by striking out Mrs. Wilson’s name as a complainant. But, coming to the conclusion that the denial of service of process by the coroner is not sustained by the proof, the decree rendered in the Chancery Court, which this bill seeks to vacate, is as binding on the minor heirs as it is on Mrs. Wilson.' — • Waring v. Lewis, 53 Ala. 615" court="Ala." date_filed="1875-12-15" href="https://app.midpage.ai/document/waring-v-lewis-6509179?utm_source=webapp" opinion_id="6509179">53 Ala. 615; Preston v. Dunn, 25 Ala. 507" court="Ala." date_filed="1854-06-15" href="https://app.midpage.ai/document/preston-v-dunn-6505418?utm_source=webapp" opinion_id="6505418">25 Ala. 507.
To the suggestion that, by collusion, Gafford and Mrs. Wilson made a fraudulent agreement that the latter should not defend, and thereby may have concluded Mrs. Wilson, while it left the heirs, then minors, free to complain of the fraud, it is, perhaps, a sufficient answer, in this case, to refer to the principle settled in Schaffer v. Lavretta, supra. But, we may go further Relief, on that ground, could only be granted against Gafford, and those claiming under him chargeable with knowledge of his fraud. Dunklin, who holds the lands, claims that he is a bom fide purchaser without notice of the fraud, and without notice of the invalidity of Gafford’s asserted ownership of the notes. The proof sustains this defense on his part, and there is no fact or circumstance in evidence, tending to carry such notice home to him, or to put him on inquiry. — Freeman on Judgments, §§ 509, 510. However the question of Gafford’s liability to Wilson’s estate may stand — upon which we express no opinion — -we feel bound to hold that, in any aspect of the case, none of the complainants show' a right of recovery against Dunklin.
The decree of the chancellor is reversed, and this court, proceeding to render the decree which the chancellor should have rendered, doth order and decree, that the bill be dis