126 Va. 259 | Va. | 1919
delivered the opinion of the court.
This is the sequel to the caveat case of McClung v. Folkes, decided by this court in November, 1917, reported in 122 Va. 48, 94 S. E. 156. The nature of the controversy and its history up to the date of that decision are tersely stated in the opinion delivered by Judge Burks, and we need not here repeat that statement in full, but the following extract therefrom will afford a helpful introduction to the present phase of the litigation. After referring to the mass of conflicting evidence in the case, Judge Burks said: “While there was this great volume of evidence relating to the issue submitted to the jury, the parties finally narrowed the issue between them to a single point and each of them staked the fate of the casey on whether the corner of one of the tracts was at a point which we may call A, or at a point which we may call B. At the. request of the plaintiff, and without objection from the defendant, they were instructed that if they believed the corner was at B, they should find for the defendant. Other instructions were given at the instance of each of the parties without objection from the other. Under these
Shortly after the decision in this court was announced, McClung brought a suit in equity to enjoin the enforcement of the judgment against him in the caveat proceedings, and to obtain a new trial on the grounds of fraud and after-discovered evidence. The bill was filed at the first February rules, 1918, and at the next succeeding term of the court the defendant, Folks, appeared and demurred to the bill. In the meantime the plaintiff had taken and filed certain depositions. The circuit court having heard the cause on the bill and exhibits and the demurrer thereto, and, “the examination of witnesses,” sustained the demurrer and dismissed the bill. From that action this appeal was allowed.-
The alleged newly discovered evidence, which related solely to the location of the pivotal corner, consisted of a certain survey made for one Thomas Dixon in the year 1793, and recorded in “Bath County Journal No.. 1, p. 22.” The materiality of this survey as evidence for the plaintiff is manifest. At the second trial of the law cause, in July, 1914, and again at the third trial in July, 1915, the defendant Folks sought to fix the corner in question at a point known in the record as Terry’s gate, referred to in the former opinion in this case as point B. The evidence at both of these trials was such as that a finding by the jury either for or against this contention on the part of the defendant would not have been interfered with by the court. The plaintiff’s paper title, which was superior to the defendant’s, ran back to a certain Bradshaw survey, and the location of the disputed corner determined the location of that survey and of the plaintiff’s land. If the corner was at Terry’s gate, the defendant prevailed; if it was not at Terry’s gate, his theory failed and the plaintiff would probably have recovered a verdict.
There was material and strongly persuasive testimony in behalf of the plaintiff, that the white oak at Terry’s gate was not a corner of the Bradshaw survey, but there was no satisfactory explanation of the marks on the tree in the absence of evidence of. any other survey of that period.
The plaintiff, always insisting that the true corner was not .at Terry’s gate, but at a point which would so locate the Bradshaw survey, under which he claimed, as to cover the land in controversy, apparently relied upon the theory that the marks on the white oak stump were probably marks of a “Tomahawk survey” or of some surveyor’s work which had never been made the' basis of a grant from the Commonwealth. At any rate, the importance of showing that the marks were not made in the course of the Bradshaw survey was manifest and was fully understood.
The grounds upon which the demurrer was sustained are not desclosed by the record, but in the petition upon which this appeal was granted it is said that the judge of the circuit court delivered an oral opinion in which he took this position:
“That the date of the Bradshaw survey was known, and the annulations in the snag at Terry’s gate showed that these remarks were of a survey approximately the same date; that the very crux of plaintiff’s contention was that these were the marks of some other survey; that the court must take judicial cognizance of the historical fact that Bath county was cut off of Augusta; that in fact the “Dixon” survey was engrossed in the Surveyor’s Book of Bath county; and, under these circumstances, the court must say, as a matter of law, that plaintiff’s counsel ought to have discovered it, and failure to do so was such an omission as to debar plaintiff from any relief on the ground of after-discovered evidence.”
We concur in this view of the case. It is true that the
“Where a new trial is sought on the ground of newly discovered evidence, it must appear not only that the evidence has been discovered since the former trial, but also that it is such, that by the exercise of reasonable diligence on the part of the applicant it could not have been procured for the trial. The authorities are unanimous to the effect that a new trial will not be granted on the ground of newly discovered evidence which could have been discovered before the trial by the exercise of reasonable diligence.
“(2.) Discovery of Evidence on Record.—Thus a new trial will not be granted if the newly discovered evidence is a matter of record, as it could have been discovered by reasonable diligence. Records are always accessible to both parties, and diligence requires that they be examined and procured in time for the trial. Especially is this rule applicable when it does not appear that the movant was ignorant of the existence of the record in question.” 14 Ency. Pl. & Pr. 798-802.
“It is said to be a general rule that courts of equity will not grant new trials on the ground that a receipt or other material document was lost or missing, and has been dis
We are of opinion, therefore, that the plaintiff is not entitled to a new trial upon the ground of after-discovered evidence.
The bill contains a further allegation, which, although controlled by considerations already expressed herein, ought not to-be left unnoticed. That allegation is as follows : “Your orator is advised, believes and charges that the defendant Folks, in using said blocks and marks as evidence of the location of a comer in the Bradshaw survey, and as being surveyor’s marks, made in the course of that survey, did so with full knowledge that such were not the true facts, and that said marks in fact belonged to the Dixon survey, and that in this regard he acted knowingly and with! the intention of deceiving and defrauding your orator in the premises.”
This raises the question as to the circumstances under which a court of equity will grant relief against a judgment obtained upon false testimony.
In 1 Black on Judgments, (2d ed.), sec. 372, it is said:
“Whether relief will be granted in equity on the ground that the judgment was procured by the perjury of the plaintiff or a witness, is disputed. There are some English and American cases holding that such action is proper, where adequate redress cannot be had at law, and where the proof to convict the perjured witness could not be obtained in time to be used on the trial. And in at least*269 one State -(Minnesota) the statutes authorize a suit to be brought to set aside a judgment obtained by the fraud or perjury of the prevailing party. In some other jurisdictions, it is thought that if a party to a suit intentionally procures and produces false testimony, suborning his witnesses to perjury and conspiring'with them to secure a judgment, this amounts to such fraud as will enable the adverse party, if defeated in the suit, to secure an injunction against the judgment. But this doctrine is denied in other States, and indeed the general current of authority is now in favor of the rule that perjury committed by the successful party or his witnesses at the trial is no sufficient ground for vacating the judgment or enjoining its enforcement.”
In Pico v. Cohn, 91 Cal. 129, 25 Pac. 970, 27 Pac. 537, 13 L. R. A. 336, 25 Am. St. Rep. 159, a proceeding in equity to annul a former decree on account of false swearing, the court expressed the following views, which appear to be in accord with the current of authority." “That a former judgment or decree may be set aside and annulled for some frauds, there can be no question; but it must be a fraud extrinsic or collateral to the questions examined and determined in the action. And we think it is settled beyond controversy that a decree will not be vacated merely because it was' obtained by forged documents or perjured testimony. The reason of this rule is, that there must be an end of litigation and when parties have once submitted a matter, or have had the opportunity of submitting it, for investigation and determination, and when they have exhausted every means for reviewing such determination in the same proceeding, it must be regarded as final and conclusive,' unless it can be shown that the jurisdiction of the court has been imposed upon, or that the prevailing party, by some extrinsic or collateral fraud, has prevented a fair submission of the controversy. What
“In all such instances the unsuccessful party is really prevented, by the fraudulent contrivance of his adversary, from having a trial; but when he has a trial, he must be prepared to meet and expose perjury then and there. He knows that a false claim or defense can be supported in no other way; that the very object of the trial is, if possible, to ascertain the truth from the conflict of the evidence, and that, necessarily, the truth or falsity of the-testimony must be determined in deciding the issue. The trial is his opportunity for making the truth appear. If, unfortunately, he fails, being overborne by perjured testimony, and if he likewise fails to show the injustice that has been done him on motion for a new trial, and the judgment is affirmed on appeal, he is without remedy. The wrong, in such case, is, of course, a most grievous one, and no doubt the legislature and the courts would be glad to redress it if a rule could be devised that would remedy the evil without producing mischiefs far worse that the evil to be remedied. Endless litigation, in which nothing was ever finally determined, would be worse than occasional miscarriages of justice; and so the rule is,- that a final judgment cannot be annulled merely because it can be shown to have been based on prejured testimony; for if this could be done’ once, it could be done again and again ad infinitvm.”
“That the mischief of retrying every case in which the judgment or decree rendered on false testimony, given by prejured witnesses, or on contracts or documents whose genuineness or validity was an issue, and which are afterward ascertained to be forged or fraudulent, would be greater, by reason of the endless nature of the strife, than any compensation arising from doing justice in individual cases.”
In 15 Ruling Case Law, sec. 223, p. 771, the text says: “Since every losing litigant may consider himself the victim of false testimony, and believes it to be willfully false, and that his adversary knew it to be so, if relief should be freely granted in equity against a decision in another judicial tribunal on the ground that it had been procured through perjury and subornation of perjury, courts of equity would be engaged a greater portion of their time in retrying questions of fact, on the suggestion that their trial in the original action had been affectecl by perjury. • To prevent this result the doctrine of intrinsic and extrinsic fraud has been resorted to by some courts, and while conceding the fact that extrinsic fraud furnishes a foundation for equitable relief, the position is taken that false testimony amounts to intrinsic fraud, proof of which is inadmissible. It must be admitted that there is considerable confusion among the cases as to just how far
The authorities upon this question are multitudinous. See the citations in those above referred to, and in 10 L. R. A. (N. S.) 216, et seq.; 8 Ann. Cas. 83-86.
i
The complainant claims that the depositions taken by him before the demurrer was passed upon or even filed, are sufficient to establish this charge in the bill. In view of this contention if we would say from the record before us that the case on this point had been fully developed, and that the complainant would not be able to add anything to his proof as already introduced, we might have disposed of this branch of the case by saying that the evidence was insufficient. It does not measure up to the clear and convincing character required in such cases. It does show that at some time the defendant and his, witness, Beveridge, learned of the Dixon survey, but it does not go far enough to establish the grave accusation that they knew its contents and effect in time for use before the trial was ended. We cannot say, however, that the plaintiff meant to commit himself to the proposition that he had completed his depositions when the demurrer was interposed and passed on. The argument of his counsel indicates that they think the alleged fraud is fully established, but the petition more than once complains that the court acted arbitrarily and by its action “on the de
There is no error in the decree complained of, and it will be affirmed.
Affirmed.