50 Ala. 32 | Ala. | 1873
This bill was filed by Nizida Eslava, as complainant, against Alice Eslava, Charles H. Eslava, M. D. Eslava, and Raymond P. Guiterrez, as defendants. Alice Eslava and Charles PI. Eslava were duly served with subpoena;
“In all cases in which decrees pro oonfesso are lawfully taken, the allegations of the bill are to be regarded as'admitted, except in the case of infant defendants, lunatics, executors, administrators, and bills for divorce.” Rev. Code, § 3391; Jones v. Beverly, 45 Ala. 161. Then, in the first place, it may be asked, does fraud render a decree of a court of chancery void ? And in the second place, do the facts stated in this bill amount to such fraud ? As a general principle, “ fraud will vitiate any, even the most solemn transactions ; and an asser ted title founded upon it is utterly void.” United States v. The Amistad, 15 Peters, 518, 594. This is certainly sufficiently broad to take from a final judgment its conclusive character, when it is founded upon a fraud. To this extent at least, I understand the authorities to go. Pratt v. Northam, 5 Mass. 95; 1 Story’s Eq, § 252. This is sufficient to justify the relief sought in this cause, if the facts stated in the bill and exhibits show a case of fraud; And I think that this is beyond all question. The bill shows that the mortgage debt was fully paid off and satisfied; and that the complainant in this suit had title to a portion of the land mentioned in the mortgage which had been discharged; yet the mortgage was foreclosed without making her a party ; and that all the parties to the mortgage suit, and all the defendants to this suit save said Guiterrez, had full knowledge of all these facts ; and that the foreclosure suit was conceived, and carried to final decree, in fraud of complainant’s rights, and the decree and proceedings under it were fraudulent and void. And as soon as complainant discovered the fraud, she filed her bill. These main facts are stated with great particularity in the bill, and repeated in the most pointed charges. The evidence, which consisted in the admissions of
The decree in the court below is, therefore, affirmed, at the costs of the appellants.