51 Ala. 301 | Ala. | 1874
Prior to this suit, the appellee having a money demand against the appellant, secured by mortgage on the real estate for which it was the consideration, filed a bill in the same court to enforce the security. A decree was rendered in his favor, which ascertained the debt, and ordered the property to be sold for its payment. In compromise and settlement of that decree, the complainant abated the interest computed in it, and the defendant, paying some money, made the note and mortgage on the same property, for the payment and foreclosure of which this suit is brought. The property was purchased in May, 1860 ; and the former suit, at issue in 1867, was defended on the ground that the Confederate States government had coerced payment in confiscation of the debt. The present suit was commenced in December, 1869, and is defended on the ground of a deficiency in the quantity of land sold. The note and mortgage bear the date of May 1, 1868. The decree was in accordance with the prayer of the bill.
If no settlement of the first decree had been made, it would be conclusive against the defendant of the grounds of defence now set up. The only way by which a decree can be affected or altered is by a bill of review, or in the nature of review, unless it has been obtained by fraud. When such a bill is founded on the discovery of new matter, it must be such as the party, by the use of reasonable diligence, could not have known; for, if there be any laches or negligence in this respect, the title to the relief is thereby destroyed. Story’s Eq. Plead. §§ 638, 414. The defendant having purchased the property in 1860, and submitted to a decree in 1867, did afterwards discover the matter of which he now complains, on the application of a third person to purchase a portion of it. As he claims under a survey, which he considered practicable to be made at the time of his purchase, and gives no additional reason why he could not have verified it subsequently, and none why it was more feasible when he had an offer of purchase, reasonable diligence cannot be accorded to him.
Besides this, the damage he has sustained is within a fraction of the interest abated by the complainant. It would be inequitable to allow the defence against the compromise which
The decree of 1867 must be regarded as an adjudication of the rights of the parties as involved in this case. Judgments are not merely final as to the facts actually litigated and decided, but they are usually, except in proceedings directly instituted to reverse them, conclusive evidence of their own rectitude and justice. The principle applies in almost every instance where a suit is sought to be sustained upon allegations which would have constituted proper ground of defence to a previous action between the parties. Observing the distinction between a mere matter of defence and a cross claim which may or may not be interposed by the defendant, the former action was in the same court of equity, the peculiar province of which is to put an end to litigation. The obligation upon the defendant to put in issue every matter allowed to him is greater in that court than in a court of law. A suit to foreclose a mortgage legitimately puts in issue every reason why the mortgage should not be foreclosed. 5 Phil. Ev. Cow. & H. notes, pp. 20, 21, 154; Story’s Eq. Plead. §§ 791, 793. But, conceding to the appellant all the right he would have under a bill of review, he is not free from laches, and he has received an abatement of the demand against him equal to the injury"complained of. The decree is affirmed.
