3 Shan. Cas. 18 | Tenn. | 1878
delivered, the opinion, of the court:
On the 19th of September, 1857, J: B. Keeling sold and conveyed by deed, in fee, to William Jackson, a tract of land of 136 acres for $5,000, the purchaser paying in cash at the time one-half .the price,- and .giving his notes at one and two years for the residue in'equal installments. On the 4th of September, 1860, James Whitworth recovered a judgment against Jackson and Keeling for $1,302 and costs,-on the last of these notes. On the 28th of January, 1867, by virtue of an execution issued on this judgment, Whitworth sold the land and became the purchaser. On the 22d of January, 1868, Whitworth received from Jackson and his wife, Nancy A.' Jackson,'.$917, in full of the amount of his bid and interest. ■ The money was paid, it seems, by the proceeds of the sale'of lots in Nashville, her separate property, and by other means raised by her. On the same day, Wm. Jackson conveyed to John G-rizzard, in trust for the sole and separate use of his wife, Nancy A. Jackson, eighty-five acres of the land, Whitworth joining in the conveyance merely by relinquishing all interest in the land. On the same day, also, Wm. Jackson conveyed the residue of the Keeling land to his son, J. S. Jackson, for a recited consideration of $1,750, secured by the notes of the son at one, two, three, and four years. On the 22d of January, 1869, John G-. Stewart and Elizabeth A. Stewart, as administrator and administratrix .of Levi A. Baker, deceased, filed two bills, as judgment creditors of Wm. Jackson, by judgment, for $2,685, recovered on the 7th of March,-1868, one bill against Wm. Jackson and J. S. Jackson, to set aside the conveyance of the 22d of
Afterwards, in February, 1874, the Stewarts and Nancy A. Jackson'entered into a written agreement of'compromise, by which, 'after■ reciting the-facts very fully, the Stewarts 'agree to pay her the money advanced to- "Whit-worth, with interest, the costs adjudged to her in the- chancery court, and the costs to be adjudged to- her in." the supreme court on' the affirmance. of the decree, and to waive any account for rents, in consideration whereof the said Nancy A. agrees to -have the decree of the chancellor affirmed in the supreme court, and the cause remanded for the execution of the chancellor’s decree.
On the 3d of April; 1874, the bill now before us was filed by Nancy A. Jackson, individually, and as administratrix of Wm. Jackson, deceased, and by the infant children and heirs of Wm. Jackson, by their mother, the said Nancy A., against the Stewarts, and two of the adult children of Wm. Jackson, who refused to join in the bill. The bill sets out substantially the foregoing, facts, with the addition that the complainant, Nancy A., had surrendered possession of the land under the agreement of compromise, but had refused to comply further. It recites the same facts relied on in the answer to the bill of the Stewarts to establish her claim to fifty acres of the land, and asserts that the
1. To set aside the judgment of .the Stewarts against "Win. Jackson, and allow- the administratrix to plead the set-offs that exist against the demand.,
2. To declare the proceedings in the Stewarts’ suit in chancery not binding on the infant complainants, because no guardian ad.litem was appointed for them.
3. To declare the redemption of the Stewarts of'no validity, because they had no judgment. ,
4. T° review, the entire proceedings in the suit of the Stewarts, and to declare complainant Nancy A.’s, rights in the premises, and especially her right to dower in the land sold by fm. Jackson to J. S. Jackson.
5.. That she be permitted to file the bill as an original bill in setting up her rights to -the fifty acres conveyed.
6. That the compromise be set aside upon the ground of a want of consideration, of fraud, and of mistake as to her rights.
The defendants, the Stewarts, demurred to so much of the bill as sought to review the previous suit, and asked for-dower in the land conveyed to J. S. Jackson, which demurrer was overruled by the chancellor. They answered that part of the bill which sought to set aside the compro
Tbe demurrer to tbe bill, as a bill of review, assigned as causes of demurrer': 1st.' That tbe bill is not properly framed for a bill of review for error apparent on tbe face of tbe decree, nor does it disclose any such error. 2. That the bill contains no such matter arisen since tbe decree or new proof which might not have been used when tbe decree was rendered, and is not filed by leave of tbe court. Tbe demurrer to so much of the bill as seeks dower is put on tbe ground that tbe facts stated show that Vm. Jackson did not die seized of tbe land in which dower is sought.
Mere irregularities in the proceedings of a cause cannot be reached by a bill of review for errors apparent. There must be error of law patent on the face of the pleading and decree, specifically pointed out. Livingstone v. Noe, 1 Lea, 55. To authorize a bill of review for new matter, the applicant must not only satisfy tbe court of its materiality, but that he could not, with reasonable diligence, have availed himself of them [it] before the decree complained of was made. Burson v. Dosser, 1 Heis., 761. And a demurrer will lie to such a bill upon tlie ground that it has been filed without special leave. Henderson v. Cook, 4 Drew, 306. The present bill is clearly defective as a bill of review. And it does show on its face that the husband was not seized of the land at his deacb in which dower is sought, by reason
If the plea of the defendants was sufficient on its face, as held by the chancellor, then the only question before us in that part of the record is as to its truth. If the defendants have proved the truth of the matters, pleaded, the suit, so far as the plea extends, is barred. Hughes v. Blake, 6 Wheat., 453; Harris v. Ingledow, 3 P. W., 94. That such proceedings were had as are set out in the plea is proved by the record of the former suit, and the decree remains in full force as to the present infant complainants who failed to perfect their appeal, and the suit is still, pending as to the complainant, Nancy A. Jackson. In this view, all of the evidence taken touching the matters of the bill covered by the plea was irrelevant to the issue, and cannot be noticed. And even if the plea was insufficient, and the chancellor erred in sustaining it, the evidence would still be irrelevant.. The complainants .should have confined themselves to the actual issue, the truth of the plea.. No evidence is admissible not authorized by . the pleadings. And the matters covered by the plea, could only be gone into after a reversal of the chancellor’s decree,, if erroneous.
The plea of. a former suit .pending in the same court, between the sanie parties, about,the same subject-matter, and for the same purpose, and a fortiori, a plea of a former decree in such, suit, is a good plea to a bill. Green v. Neal, 2 Heis., 219; Connell v. Furgason, 5 Cold., 404. The bill of the Stewarts was filed, for the express, purpose of contesting the right of Nancy A. Jackson to the entire tract of land in controversy, and to assert the superior right of the Stewarts as judgment creditors of .W. Jackson, to redeem and subject that land.. The defendants to that bill, Jackson and wife, made, or could have made, all the de7
The only remaining question is as to the validity of the contract of compromise. The bill avers that there was no appeal from the decree rendered in the original cause because of the failure to give an appeal bond within the time required, but the record shows the execution in time of a bond by Nancy A. Jackson, individually. If she did not appeal, she would haAe had the right to enter into a valid compromise of her rights in relation to the subject-matter of litigation, the concession by the complainants of any of their rights thus acquired being a sufficient consideration. If she alone appealed as an individual, it is still clearer that she might enter into a valid contract for the termina-
It may be added that the decree of the chancellor in the original cause could not have been otherwise than it was, even if. all the evidence forming a part of this record had been before him. The main object of this bill, as of the answer in that bill, .was to establish a resulting trust in the land in controversy in favor of Nancy A. Jackson, by reason of the sale of her land on. the 11th day of December.
The decree of the chancellor must be affirmed, with costs.