106 Ala. 284 | Ala. | 1894
— The pleadings in this case are quite voluminous, and a great deal of testimony was submitted at the final hearing. We find no serious conflict as to facts which are material in influencing legal'conclusions. The complainant claims as purchaser at execution sale, and as judgment creditor of The Curry Manufacturing Company. B. J. Curry claims as a judgment creditor, as mortgagee and under' a decree of foreclosure of his mortgage against The Curry Manufacturing Company. The judgments from which the complainant (The Moore & Handley Hardware Company) derive title were rendered in March, September and October, 1891, The
The principle is distinctly recognized in the case of Robinson v. Davis, 11 N. J. Eq. 302, and in the case of Bensimer v. Fell, 35 West Va. 15, (s. c. 29 Amer. St. Rep. 774,) the precise question arose, aud in a well considered opinion, after a review of the authorities, it was held, that the judgment conclusively established the relation of debtor and creditor between the parties and all creditors as to the justness and amount of the debt, and could not be attacked except for fraud and collusion. Many other authorities might be cited. There
There is not an averment in the present bill presenting a fact why the complainant in the foreclosure suit, was not entitled to relief, that was not brought forward in defense of the bill to foreclose the mortgage, or in defense ot the suit upon the note in the court of law, and adjudicated in those suits, except that of fraud and collusion in procuring the decree of foreclosure. We cannot open and retry the case upon facts which have been finally settled.
The fact that the mortgage debt was contracted, and the mortgage to secure it was executed, prior to the date of the judgments upon which complainants rely for relief, or the creation of the debts upon which they were rendered, is not controverted. The validity of the mortgage and the justness of the debt, is res adjudicata by the judgment-and decree of foreclosure. We need scarcely add, that complainants’ evidence falls far short of establishing fraud or collusion in the procurement of either.
There is no error and the decree must be affirmed.
Affirmed.