Complainants are the grandchildren of W. D. and Bettie Fountain, deceased, and respondents are the children and grandchildren of the said W. D. and Bettie Fountain.
As I view it, the bill here under review is primarily a bill in the nature of a bill of review to set aside and hold for naught the order or decree of the Probate Court of Monroe County setting apart certain described property to Bettie Fountain as a homestead because of fraud in the procurement or concoction of said decree. In addition the bill seeks to have cancelled and held for naught the deeds conveying said property from Bettie Fountain to Nannie Fountain Riley, and from Nannie Fountain Riley and husband to Lucy Urquhart, Fannie Snider, Daisy Barnes and Viola McDonald, and also a sale of the property and a division of the proceeds.
In substance the bill alleges that W. D. Fountain departed this life intestate in Monroe County, Alabama, in the year 1927, and left surviving his widow, Bettie Fountain, and several children, none of whom were minors, and several grandchildren; that there has been no administration on his estate; that on April 25, 1930, the property *Page 510 involved in this cause was set apart to Bettie Fountain, the widow, as a homestead by order or decree of the Probate Court of Monroe County, vesting the fee simple title thereto in the widow. On the same day, April 25, 1930, Bettie Fountain, the widow, conveyed the property to one of her daughters, Nannie Fountain. Bettie Fountain died in 1932. On March 8, 1933, Nannie Fountain, who in the meantime had married L. R. Riley and joined her husband, conveyed the property to four of her sisters, viz., Lucy Urquhart, Fannie Snider, Daisy Barnes and Viola McDonald, reserving a life estate in Nannie Fountain Riley who died January 21, 1947.
In essence the fraud charged is, that although the proceeding to set apart the homestead to the widow, Bettie Fountain, and the decree setting it apart, were in all respects regular and valid on their face, complainants had no notice or knowledge thereof; that upon petition of the widow to set apart the homestead, the probate court on to wit, January 23, 1929, appointed appraisers or commissioners to appraise the property sought to be set apart as a homestead and to report their findings as required by law; that the appraisers or commissioners reported on January 24, 1929, that the property involved was less than one hundred and sixty acres in area, and less than $2,000 in value; that on April 27, 1929, the probate court entered an order or decree fixing May 15, 1929, as the day for hearing the petition of the widow and the report of the commissioners, and further ordered that all of the heirs at law of the said W. D. Fountain, deceased, be given notice of the petition and of the report of the appraisers and of the day set for hearing the same by personal service of at least ten days before said date, unless said heirs at law should file in court their written acceptance of service, and a waiver of all other or different service therein; that a written acceptance of service and waiver of further or different service, purportedly signed by complainants, was filed in said cause; that complainants did not sign the acceptance and waiver of service, nor did they authorize any one else to sign the same for them; that they had no knowledge of the proceedings to set apart a homestead to the widow, Bettie Fountain, and never heard of it until after the death of Nannie Fountain Riley in 1947. That complainants had no knowledge whatever of the deed conveying the homestead property from Bettie Fountain to Nannie Fountain (later Mrs. Riley), nor of the deed conveying said property from Nannie Fountain Riley to her four sisters until after the death of Mrs. Riley in 1947; that Bettie Fountain, the widow of W. D. Fountain, deceased, continued to live on and occupy the property with Nannie Fountain living with her until the death of Bettie Fountain in 1932; that after the death of Bettie Fountain, Nannie Fountain Riley continued to occupy the property until her death in 1947. That at the time the property was set apart to the widow as a homestead it was of the value of $2500 or more; that after the death of W. D. Fountain the only persons in the visible possession of the homestead property was his widow, Bettie Fountain, up to the time of her death, and his daughter Nannie Fountain Riley up to the time of her death. That the mother of complainants, Annie McDonald and Minnie Strock was a daughter of W. D. and Bettie Fountain and predeceased W. D. Fountain; that complainant George Fountain is the son of Alex Fountain who was the son of W. D. Fountain, and that the said Alex Fountain predeceased his father, W. D. Fountain. Complainants further allege that they instituted this suit within thirty days after learning of the proceedings to set apart the homestead and of the two deeds above described.
From the decree overruling demurrers to the bill, respondents appeal.
Prior to the Code of 1923, no notice to the heirs was required where exemptions of real or personal property had been reported by appraisers or commissioners to the widow and minor child or children, or either. As said in Lester v. Stroud,212 Ala. 635, 638, 103 So. 692, 694, "the burden was thus placed on the heirs to keep a lookout for proceedings in the probate court which might be instituted and completed within 30 days. McDonald v. McAlily, 206 Ala. 105, 89 So. 198. * * * This system naturally lent itself to abuses, *Page 511 and is now remedied by section 7934, Code of 1923."
Section 7934, supra, appears in the Code of 1940 as section 677, Title 7, and reads: "In all cases where exemptions of real or personal property have been reported by appraisers or commissioners to the widow and minor child or children, or either, it shall be the duty of the probate judge, immediately upon the filing of the report of such appraisers or commissioners, to give ten days' notice thereof, and of the day set for the hearing of said report to the next of kin of decedent, which date of hearing shall not be less than thirty days from the filing of said report. If any of said next of kin are nonresidents of the state, said notice shall be given by publication once a week for three successive weeks in some newspaper published in the county, or, if none is published in the county, by posting such notice of said length of time at the courthouse door and three other public places in the county."
Appellants insists that the instant bill is a collateral attack upon the proceedings and decree setting apart the homestead to the widow, Bettie Fountain, citing Williams v. Overcast, 229 Ala. 119, 155 So. 543; Albright v. Creel,236 Ala. 286, 182 So. 10; Venable v. Turner, 236 Ala. 483,183 So. 644; Faulk Co. v. Boutwell, 242 Ala. 526, 7 So.2d 490.
In Venable v. Turner, supra, no decision was made as to whether the attack on the homestead proceedings was direct or collateral, the same being unnecessary. The three other cases cited were suits for division or sale for division of property claimed to be owned jointly, the claim of joint ownership being predicated upon the invalidity of a decree of the probate court setting apart the lands involved as a homestead.
In the instant case the attack on the decree setting the homestead apart to the widow is direct for the lack of notice to those entitled under the statute to receive it. See, Wright v. Fannin, 229 Ala. 278, 156 So. 849. Equity having assumed jurisdiction for that purpose may also on proper showing set aside the deeds of the widow to Nannie Fountain Riley, and from Nannie Fountain Riley to her four sisters, and sell the lands for division of the proceeds if they cannot be equitably divided in kind.
The most serious question presented is the effect of the non-compliance with section 677, Title 7, Code, and laches.
Section 677, supra, first appeared in the Code of 1923 as section 7934. Prior to that time notice to the heirs at law of a proceeding to set apart the homestead of a deceased husband was not required. This, as said in Lester v. Stroud, supra, lent itself to abuses, and it was to prevent such abuses that the section was included in the Code of 1923. So far as we know, no case has been presented since the adoption of what is now section 677, supra, wherein the lack of notice required has been made the basis of a direct attack as for fraud on a decree of the probate court confirming the report of appraisers or commissioners and setting apart the homestead of the widow and minor child or children, or either of them. However, we find a strong analogy with the case of Wise v. Miller, 215 Ala. 660,111 So. 913, 914, in which the following is quoted from Dunklin v. Wilson, 64 Ala. 162: "A party sought to be concluded by a judgment or decree, must be shown to have had notice or knowledge of the suit, actual, or, in some cases, constructive; and if this notice or knowledge be wanting, the record of recovery has no binding effect. This rests on the plain principle of right, that no man shall be deprived of his goods, until an opportunity has been afforded him of making defense."
The late Mr. Justice Sayre said further in Wise v. Miller, supra:
"And our opinion now is that complainant in this cause, one of the defendants in the decree under review, upon clear and convincing proof of the facts averred in the bill, will be entitled to relief for the reason that she cannot be deprived of her property without an opportunity to defend against the bill which sought to subject it to a lien for the payment of the debt of her vendor. It is the policy of the law that there should be an end of litigation and, to that end, private hardship must in some situations give way to public convenience. But that policy assumes that the party has had an opportunity to be heard, for otherwise there has been *Page 512 no litigation which would invoke the policy. Moreover, the policy underlying our conclusion in this case is paramount and is founded on the fundamental law which guarantees due process. The general considerations of justice and equity which conduce to this conclusion are not far to seek and are convincingly stated in 1 Black on Judgments (2d Ed.) § 276.
"The section referred to is found in the chapter dealing with the collateral impeachment of judgments, but the considerations which go to sustain judgments and decrees of courts of competent jurisdiction are the same whether the attack be direct or collateral. There is, however, this difference in the method of application, a difference arising out of considerations of convenience in the administration of the law: A judgment regular on its face is beyond question on collateral attack, whereas —
" 'The rule that a record is conclusive evidence of its own verity is not applicable in a direct proceeding instituted for the purpose of showing its falsity as to a matter which, if false, shows that the court pronouncing it as a judgment had no jurisdiction of the person of the defendant, and, consequently, that what purports to be a record is in fact no record at all.' 1 Black, § 288.
"A judgment without due process, a judgment against which the defendant had no opportunity to defend, though clothed with all the forms of a judicial proceeding, is not the result of a judicial proceeding. To use the language of Judge Story in Bradstreet v. Neptune Insurance Co., 3 Sumn. [600], 601, 3 Fed.Cas. No. 1793, reproduced in Windsor v. McVeigh, 93 U.S. 274,23 L.Ed. 914, and in Hudson v. Wright, supra (164 Ala. 298,51 So. 389 [137 Am.St.Rep. 55]) the result of such a proceeding is but a 'solemn fraud,' 'is not so much a judicial sentence as an arbitrary sovereign edict,' having 'none of the elements of a judicial proceeding'; and that, we think, is the law of all cases, provided only the lack of jurisdiction is properly made to appear, that is, in the case of collateral attack, by the face of the record, or, in the case, as here, by direct attack, by the face of the record, affirmatively, or by proof aliunde to the satisfaction of the court."
We are clear to the conclusion the bill is sufficient as against demurrers to set aside the decree of the probate court for lack of notice to complainants.
Appellants further insist that the bill of complaint shows on its face that complainants' rights are barred by laches.
"For a concise statement of the principle of laches, see Hauser v. Foley Co., 190 Ala. 437, 440, 67 So. 252.
"Laches is not controlled by statute, but is a creature of equity, and exists against one who takes no steps to enforce his rights until a change of circumstances makes it inequitable to do so, or by reason of such long delay any conclusion must be conjectural and the facts obscured by lapse of time, loss of evidence or death of parties. Oxford v. Estes, 229 Ala. 606,158 So. 534; Meeks v. Meeks, 251 Ala. 435, 37 So.2d 914; Courson v. Tollison, 226 Ala. 530, 147 So. 635; Snodgrass v. Snodgrass, 185 Ala. 155, 64 So. 594; Lucas v. Skinner, 194 Ala. 492,70 So. 88; Waddail v. Vassar, 196 Ala. 184, 72 So. 14.
"But justifiable ignorance of the existence of the right is an excuse for such delay as would otherwise be laches. Oxford v. Estes, supra; 21 Corpus Juris 244; * * * Haney v. Legg,129 Ala. 619, 30 So. 34, 87 Am.St.Rep. 81." Wise et al. v. Helms et al., ante, p. 227, 40 So.2d 700, 702.
The recorded deeds from Bettie Fountain to Nannie Fountain Riley, and from Nannie Fountain Riley to her four sisters are not sufficient notice as respects this question. Pittman v. Pittman, 247 Ala. 458, 25 So.2d 26; Winters v. Powell, 180 Ala. 425,61 So. 96; Wise et al. v. Helms et al., supra; Ratliff v. Ratliff, 234 Ala. 320, 175 So. 259; Saltsman v. Saltsman,243 Ala. 495, 10 So.2d 752.
The possession of one tenant in common is prima facie presumed to be the possession of all, and it does not become adverse to the cotenants unless they are actually ousted or, short of this, unless the adverse character of the possession by one is actually known to others, or the possession of one is so open and notorious in its hostility and exclusiveness as to put the other tenants on notice of its adverse character. *Page 513 Swafford v. Brasher, 246 Ala. 636, 22 So.2d 24.
The possession of the property by Bettie Fountain until her death, there having been no administration on the estate of W. D. Fountain, could have been under her quarantine rights and, in the absence of notice to the contrary, is not sufficient to charge complainants with notice of her claim of occupancy as a homestead. Nor are the recorded deeds from Bettie Fountain to Nannie Fountain Riley, and from Nannie Fountain Riley to her four sisters sufficient to put complainants on inquiry. After the death of Bettie Fountain, the possession of Nannie Fountain Riley until her death, for aught appearing, was that of a cotenant with complainants and other heirs at law of W. D. Fountain, deceased.
As I understand the opinion of the majority, other than the concurring opinion of Mr. Justice Brown, this cause is reversed on the sole ground the bill of complaint does not allege how the complainants found out that they had been defrauded. This particular point was not stressed in appellants' brief, and I am unwilling to reverse the case. Considering the bill as a whole, I cannot see the materiality of alleging how they received the information that they had been defrauded. I therefore respectfully dissent.