The plaintiff in this suit was the sole defendant in the equity proceeding in which said consent decree was entered, and by said decree she was awarded, not a lot of impoverished participations in loans, the property of the bank, the defendant here, but $81,758.23 in cash, a large part of the proceeds of the life insurance policies on the life of her deceased husband, and by the fraud and deceit of the defendant in not disclosing to the plaintiff that said decree contained any such proviso, it — the bank — palmed off on the plaintiff said lot of impoverished participations in loans in satisfaction of its liability as receiver for said $81,758.23, in cash, the plaintiff then being ignorant of the fact that said decree contained any such stipulation.
If the plaintiff in the present action was seeking to recover the proceeds of the life insurance, the subject-matter of the litigation involved in Breen Gardien Insurance Agency, Inc., et al. v. Lela J. Brasher, or to question the satisfaction of that decree by the delivery to her or to her representative — the defendant bank — of the "participations in loans," the contention of the defendant, appellee, would be sound and the authorities cited by it would be apt. Cowley v. Farrow et al.,193 Ala. 381, 69 So. 114.
But that is not the case presented here. This suit is to recover the damages suffered by the plaintiff in consequence of the fraud and deceit practiced upon her by defendant, in not disclosing to her, as it was its duty to do in the circumstances, the contents and nature of said decree — the fact that it allowed the defendant to deliver to the plaintiff or to itself as plaintiff's representative and adviser, said depreciated securities in lieu of the money ascertained to be the plaintiff's property.
The decree — being wholly by consent — under our decisions partakes of the nature of a contract, and is not "strictly speaking, res judicata." Cowley v. Farrow *Page 348 et al., 193 Ala. 381, 69 So. 114; Carr v. Illinois Central R. Co., 180 Ala. 159, 60 So. 277, 43 L.R.A.(N.S.) 634. A consent decree is no more solemn or sacred than a solemn contract entered into between contracting parties, and previous rescission or vacation of the decree is not a prerequisite to the right to sue for fraud and deceit in procuring its rendition. Maxwell v. Sherman, 172 Ala. 626, 55 So. 520; Stewart v. Riley Johnson, 189 Ala. 519, 66 So. 488.
No one questions the soundness of the doctrine of "the finality of judgments and decrees," but that doctrine is limited to the parties to the suit in which such judgment or decree was rendered and confined to the matters within the scope of the issues in the proceeding.
As observed by Stone, Justice, in Gilbreath v. Jones, 66 Ala. 129,132, "In the opinion of the judges, given in the Duchess of Kingston's Case (2 Smith Lead.Cas. [7th Ed.] 609 [573]), is the following language, given as the result of the numerous decisions, relative to judgments being given in evidence in civil suits: 'That the judgment of a court of concurrent jurisdiction, directly upon the point, is, as a plea, a bar, or as evidence conclusive, between the same parties, upon the same matter, directly in question in another court.' It can not be overlooked, that this language lays down a strict rule; yet, it is supported alike by reason and authority. The parties must be the same, the subject-matter the same, the point must be directly in question, and the judgment must be rendered on that point. Any of these ingredients wanting, the defense fails. The sentence quoted above has been adopted, both by text-writers and judicial tribunals, and has come to be recognized as a judicial axiom." To the same effect, Hall Farley v. Alabama Terminal Improvement Co., 173 Ala. 398, 56 So. 235. See, also, 9 Enc.Digest of Ala.Rep. pages 168, 169; Fuller v. Whitlock, 99 Ala. 411, 13 So. 80; McGilvary et al. v. Reynolds et al., 224 Ala. 435, 140 So. 417; Hayes et al. v. First Joint Stock Land Bank et al. (Miss.) 165 So. 605.
Under the facts alleged in the complaint, the plaintiff was defendant's client, and the defendant was her representative and confidential adviser, and even though the defendant was a party complainant in said equity suit, as asserted in briefs, it cannot cloak behind said decree, for the simple reason that the confidential relation between the plaintiff and defendant and the duties arising therefrom were not within the scope of said proceeding, and the question of defendant's infidelity and fraud, the basis of this action, was foreign to the equity suit. There was no adjudication or agreement in respect to such fraud; nor was there any contest or contention as to the amount of money to which the plaintiff was entitled.
It is familiar law that an agent may represent two antagonistic interests or principals, but in such situation he must disclose fully to both his relation. Girard Fire Marine Ins. Co. et al. v. Gunn, 221 Ala. 654, 130 So. 180.
So, if the defendant was one of the complainants in the equity suit, before undertaking to advise and represent the plaintiff in respect to consenting to said decree, it was under duty, not only to disclose the contents and legal effect of the decree, but that the said participations were its property, and that it was an antagonist of the plaintiff. This is nothing but common honesty, and courts of justice will not look for naked technicalities and mere sentimentalism as to shield one who has by fraud and deceit inflicted damage on another. Code 1923, § 5676; Williams et al. v. Bedenbaugh, 215 Ala. 200,110 So. 286.
Application overruled.
ANDERSON, C. J., and THOMAS, FOSTER, and KNIGHT, JJ., concur.