The bill is for the sale of lands for division among tenants in common. Complainants, and one respondent, claim title as the heirs and next of kin of T. J. Dickson, deceased.
A. L. McAllilly is made respondent for the purpose of removing an alleged cloud upon complainants' title held by him, ousting his possession, and calling him to account for rents and waste. Sandlin v. Anders, *Page 589 210 Ala. 396, 98 So. 299. The cloud upon title complained of consists of proceedings in the probate court to set apart the lands as the homestead of S. A. Dickson, the widow of T. J. Dickson, deceased, followed by a warranty deed from the widow to McAllilly.
The proceedings to set apart the homestead are assailed for fraud in the procurement of the orders and decrees to the end of vesting the absolute title in the widow. These proceedings are made exhibit to the bill, and show a petition in due form by the widow for setting apart the homestead without administration, under Code, § 7948, the appointment of commissioners, their report in due form showing the property described was the homestead of decedent at the time of his death, the only real estate owned by him, less than 160 acres in area, and of the appraised value of $2,000, that the deceased left no minor children, and setting the same apart to the widow as exempt from administration. No exceptions being filed, a decree of confirmation, reciting the jurisdictional facts, ordering that the property be set aside to S. A. Dickson, the widow, and that the title vest absolutely in her, was entered. Code, § 7951.
The fraud upon which it is sought to impeach these proceedings, briefly stated, is: That the lands, at the time of the husband's death, were of the full value of $5,000; that, at the suggestion of McAllilly, the widow filed her petition, falsely and fraudulently alleging the property did not exceed in value $2,000; that both the widow and McAllilly knew the value of the property was greatly in excess of the exemptions allowed by law, and the proceedings were had with the fraudulent purpose on the part of both to acquire the absolute title to the lands by proceedings based upon false and fraudulent averments of jurisdictional facts, leading the court to believe it had jurisdiction in the premises. It is further averred the complainants had no notice of the proceedings; and that soon thereafter the widow conveyed the lands to McAllilly.
The appeal is from a decree sustaining a demurrer to the bill. The bill is framed in view of the doctrine announced in Keenum v. Dodson, 212 Ala. 146, 102 So. 230. In that case the fraud consisted in the false allegation that decedent left no minor children, resulting in a decree vesting the absolute title in the widow to the exclusion of minor children not represented in the proceedings. But the decision is based upon the ground of fraud in the procurement or concoction of the decree, in that the jurisdiction of the court was invoked by false and fraudulent allegation of a jurisdictional fact. The same case points out that a false averment of the quantity of the lands as being within the area to which the statute applies is jurisdictional, and overruled Douglas v. Bishop, 201 Ala. 226,77 So. 752, so far as in conflict on that point.
It is equally clear that the value of the lands, not exceeding $2,000, is also a jurisdictional fact, to be averred in the petition and determined in the proceedings as a condition upon which the decree vesting an absolute title is based. The statute so declares. Code, § 7951.
These several jurisdictional facts, being brought within the lis pendens, are adjudicated by the court; and, while the decree remains unreversed on appeal, and not vacated by direct proceeding in equity, it cannot be assailed collaterally.
Proceedings of this sort deal, not with transactions between parties themselves, nor alleged transactions inter partes, but with legal rights growing out of relationship to the subject-matter, law-made rights, or alleged rights. When such cause of action is concocted by fraudulently setting up the existence of conditions which are known not to exist, the law is made the instrument of fraud. The suit itself is the fraudulent transaction. There is fraud in the procurement of the decree. An element of public policy is involved when the law which creates the right of action is itself made the instrument of fraud.
When, as here, the proceeding is in rem, the party injured having no notice thereof, and not wanting in diligence under the circumstances, a case is made for equitable relief under the authorities cited in Keenum v. Dodson, supra. Lester v. Stroud, 212 Ala. 635, 103 So. 692.
In dealing with the question of value in homestead proceedings, it must be noted that value is usually a matter of opinion, and some margin must be allowed for bona fide differences. Special conditions, such as the fluctuating values of lands in 1918 and 1919, are proper considerations.
The fraud available in equity to overturn judgments at law must be actual fraud. There is no want of averment of actual fraud in this bill. That the parties promoting the proceedings knew at the time the value of the property was greatly in excess of the exemptions, and had the intent to obtain title through court proceedings known to be a fraud upon those holding the lawful title, negatives any idea of bona fide error of judgment on the question of value.
Among the grounds of demurrer addressed to the bill was failure to aver any fraud or collusion on the part of the commissioners appointed to appraise the property. The law requires the commissioners to be disinterested householders or freeholders, who shall act under oath in making their appraisement and report. One primary purpose of the report of commissioners is the appraisement of value for the advice of the court. Their report, in connection with exceptions thereto, if any, is the basis of further action by the court. The law does not make the petition of the widow evidence of value further than to invoke the court's jurisdiction. Neither is the *Page 590 averment of the petition as to value evidence for the consideration of the commissioners. It it not before them, but they act on a commission charging them with the duty to appraise the property. The law presumes they have performed their duty.
Fraud, as a basis of relief, must be a contributing cause of the injury. If competent commissioners have performed their duty under oath, uninfluenced by any action of the petitioner or parties in collusion with her, and made a bona fide report appraising the property, it cannot be said the fraudulent purpose of petitioner has entered into the rendition of the final decree, in the absence of fraud in preventing a hearing, as in Lester v. Stroud, 212 Ala. 635, 103 So. 692.
The report of commissioners and the action of the court thereon negative the charge of fraudulent undervaluation in the petition. While a court of equity has no tolerance for fraud, it has regard for the judicial findings of other courts, and overturns them only on clear allegations and proof of that species of fraud whereon its jurisdiction rests. We hold that a bill addressed to fraud in the matter of valuation of the homestead should show some fraudulent or wrongful act of the petitioner, her agents, or persons in collusion with her, in naming the commissioners, or in influencing their appraisement, or such incompetency, bias, or inattention to duty as is the equivalent of bad faith.
The averments here show no more than that the commissioners did appraise at $2,000 property alleged to have been worth $5,000, and that the attorney for the commissioners drew their report. Drawing the report after they have come to a decision as to its contents is not to be deemed a circumstance of fraud.
As a matter of evidence, the disparity between the actual and appraised value of the property may be so obvious and so great as to warrant a conclusion of bad faith or incompetence; but the mere allegation of such disparity does not meet the requirements of good pleading. The present bill was subject to demurrer in this regard.
Another ground of demurrer is laches. The husband died June 26, 1918; the petition for homestead exemption filed November 20th, 1918; the final order confirming the report of commissioners, January 11, 1919; and the deed from the widow to McAllilly, January 27, 1919. The recited consideration for the deed was the support and maintenance of the widow during her life. The bill shows that McAllilly entered into possession of the land, claiming under said deed, and so remains; that the widow is now dead, but the date of her death is not shown. The bill was filed April 22, 1925.
No excuse is assigned for the delay of more than six years in assailing the probate proceedings for fraud. It is averred complainants, adults, had no notice of the proceedings at the time, but it is not averred when notice was acquired. Inferentially, McAllilly's possession was such notice as to provoke inquiry touching the source and nature of his claim. Such inquiry would disclose that from year to year he was parting with the consideration of value expressed in his deed. The equity to assail the probate proceedings for fraud accrued at the time they were entered.
The maxim of good faith and reasonable diligence applies with full force to suits in equity to vacate judgments at law for fraud. The same sound policy which exacts diligence in the defense of suits while pending obtains in avoiding judgments by bill in equity after they are entered. The statutory remedy at law for the like purpose is limited to four months from the rendition of the judgment. Code, § 9521. The time so fixed is arbitrary, without regard to when the fraud was discovered. Equity avoids arbitrary rules, and is not limited to the four-month period. Evans v. Wilhite, 167 Ala. 591, 52 So. 845. In general, such bill must be filed within a reasonable time under the circumstances of the particular case.
It has been declared that, by analogy to the statute of limitations for bills of review, no special features appearing, the limitation is fixed at three years, subject to the statute giving one year after discovery of the fraud. A complainant seeking to bring himself within the one-year exception has the burden of averment and proof of failure to discover the fraud by the exercise of due diligence. Gordon's Adm'r v. Ross,63 Ala. 363; Heflin v. Ashford, 85 Ala. 125, 3 So. 760; Sims v. Riggins, 201 Ala. 99, 77 So. 393; Hendley v. Chabert, 189 Ala. 258,65 So. 993; Maxwell v. Lauderdale, 200 Ala. 648,77 So. 22; Evans v. Woodsworth, 213 Ill. 404, 72 N.E. 1082. The demurrer on the ground of laches was well taken.
Counsel on both sides refer to the former case of McDonald v. McAlily, 206 Ala. 105, 89 So. 198, which appears to have involved the same matters now in litigation.
While this court takes judicial knowledge of its own records, this does not mean the court will consider the effect of former proceedings upon the pending suit, in the absence of pleading or evidence bringing the former records into the issues before us. Cogburn v. Callier, 213 Ala. 38, 104 So. 328; Id., 213 Ala. 46,104 So. 330.
We cannot consider the record in the former action either on the question of laches in bringing the present suit or as res adjudicata of this controversy.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur. *Page 591