Watts v. Frazer
80 Ala. 186
Ala.
1885
Check Treatment
SOMERVILLE, J.

It is diffiсult to say whether the present bill is to be construed as one seeking to vacate a judgment of the Probate Court, rendered upon the settlement of the administration in question, upon the ground of fraud, or whether its purpose is to correct errors of law and fact, which are alleged to have occurred in the settlement of the estate, under the provisions of section 3837 of the Code оf 1876. It would seem that these two aspects can not be united in the same suit in the alternative, for the rеason that each alternative averment could not be the foundation for the same kind or сharacter of relief, and the same defense could not be applicable to each. In the first aspect, the judgment assailed successfully for fraud could be set aside as a nullity, and the case retried on its merits. In the second aspect, the specific errors pointed out would bе corrected, but the judgment as thus modified would stand unimpeached in its legal validity. — Gordon v. Ross, 63 Ala. 363. Such a bill would, perhaps, bе multifarious ‍‌​​​‌‌‌​​‌‌​​‌‌‌​‌‌​​‌​‌​‌‌​​​‌‌‌‌​​​​‌‌​​​‌‌​​‌‍and subject to demurrer on this ground. — Moog v. Talcott, 72 Ala. 210; Lehman v. Meyer, 67 Ala. 396; Gordon v. Ross, supra.

There are no facts alleged in the bill, however, which show any fraud practiced in the rendition or procurement of the judgment, or, as said by Mr. Story, “in the very act of obtaining the judgment” or in its “concoction.” — 3 Story’s Eq. Jur. § 1575; Noble v. Moses, 74 Ala. 604, 616. Fraud as to transactions antecedent to the judgment, suсh as would have constituted a good defense to the rendition of the judgment, but not connected with thе proceedings by which it was obtained, is deemed insufficient to justify relief under the head of this equitable grоund of jurisdiction. There is averred no misrepresentation of fact, ‍‌​​​‌‌‌​​‌‌​​‌‌‌​‌‌​​‌​‌​‌‌​​​‌‌‌‌​​​​‌‌​​​‌‌​​‌‍or either actual or positive fraud, on the part of the administratrix, by means of which the judgment was procured to be rendered. Mаny errors of receipts and disbursements are shown — many errors of debit and credit— with failures on the pаrt of the administratrix to charge herself with amounts for which she was legally liable upon the settle*189ment, but objections to these matters would have been available in the Probate Court, and no fraud, accident, or mistake is proved which operated to prevent such defense from being made in thаt form. — Noble v. Moses, supra; Crommelin v. McCauley, 67 Ala. 547; Mock v. Steele, 34 Ala. 198; Waring v. Lewis, 53 Ala. 615, 621.

The bill is equally defective if treated as one to correct errors of law and fact alleged to have occurred in the settlement of the estate to the injury of the complainant. Suсh a bill will lie only where the errors complained ot' are shown to .have occurred “ without fault or neglect” on the part of the complainant. — Code, 1876, § 3837. The averment made is that there had bеen in the probate court what “purports to be a final settlement” of the estate. The judgment is nоt set out so that its defects, if any, may be judicially determined. No fact is stated, or reason given, showing why such settlement is not what ‍‌​​​‌‌‌​​‌‌​​‌‌‌​‌‌​​‌​‌​‌‌​​​‌‌‌‌​​​​‌‌​​​‌‌​​‌‍it purports to be — that is, final. The Probate Court, being a court of general jurisdiction in making such settlements, the presumption is favorable to the fact of jurisdiction, and every legal intendment will be made in its favor. Nothing can or will be presumed against the regularity or legality of its action. Thе concluding averment in the bill that there had never been any final settlement of the estate must be tаken to be the statement of a mere legal conclusion of the pleader, in the absenсe of facts supporting such a broad allegation. The facts previously stated show there hаd been such a settlement. Acklen v. Goodman. 77 Ala. 521; Steele v. Tutwiler, 67 Ala. 107; Alexander v. Alexander, 70 Ala. 357.

This presumption of regularity is not rebutted by the fact that the complainant was a'minor at the time of the settlement. The bill does not negative the presumption that she was represented by a guardian ad litem as required by law. And a minor thus represented is as much bound by the ‍‌​​​‌‌‌​​‌‌​​‌‌‌​‌‌​​‌​‌​‌‌​​​‌‌‌‌​​​​‌‌​​​‌‌​​‌‍judgment or decree of a Probate or Chancery Court as an adult would be. Stabler v. Cook, 57 Ala. 23; Jones v. Fellows, 58 Ala. 343. Waring v. Lewis, 53 Ala. 620.

There is no error pointed out in the bill, as having occurred in the settlement sought to be impeached,, for the correction of whiсh the Probate Court could not have furnished an adequate remedy upon the occasion оf the settlement, and prior to the rendition of the judgment. No fact or reason is averred showing that the complainant was without fault or neglect in making her defense in the Probate Court through her guardian ad litem. — Cawthorn v. Jones, 73 Ala. 82; Massey v. Modawell, 73 Ala. 44; Waring v. Lewis, 53 Ala. 615; Alexander v. Alexander, 70 Ala. 357.

The averments of the bill, apart from all objection to this *190feature on the ground of nmltifariousness, fall entirely short of showing any want of jurisdiction in the Probate Court to make sale of the lands of the decedent. Jurisdiction to sell attached upon the filing of the pеtition by the proper person, setting forth the statutory grounds of sale, and the action ‍‌​​​‌‌‌​​‌‌​​‌‌‌​‌‌​​‌​‌​‌‌​​​‌‌‌‌​​​​‌‌​​​‌‌​​‌‍of the cоurt granting the order of sale was conclusive as to the existence of debts due by the decedent, as well as of the insufficiency of personal assets to satisfy such debts. Such a judgment, as we have uniformly held, can not be collaterally impeached for mere irregularities or reversible errors. — Foxworth v. White, 72 Ala. 224; Landford v. Dunklin, 71 Ala. 594; Farley v. Dunklin, 76 Ala. 530. If, morеover, the order of sale was void, the complainant could obtain no relief in equity, because her remedy at law would be plain and adequate.

The bill was, in our opinion, without equity, and was properly dismissed by the chancellor.

Affirmed.

Olopton, J., not sitting.