The first *Page 410 question is whether the willful making of false allegations of essential facts necessary to state a cause of action and to give the court jurisdiction to render the particular judgment and the willful concealment of those facts from the court constitute fraud in obtaining the judgment such as will entitle the petitioners to vacation of the judgment under 12 O.S. 1941 § 1031[12-1031] (4). By the demurrer to the petitions to vacate, the plaintiff, Turner, admits, for the purpose of the demurrer, the truth of these allegations. Federal Tax Co. v. Board of Com'rs,187 Okla. 223, 102 P.2d 148.
Turner admits that his action was prosecuted under 12 O.S. 1941 § 1141[12-1141]. Where the plaintiff does not join with his cause of action to quiet title under said statute one for possession, he cannot maintain it without alleging that he is in possession. Christy v. Springs, 11 Okla. 710, 69 P. 864; Marshall v. Ward, 167 Okla. 183, 28 P.2d 1091. Therefore, the allegation that he was in possession was material and jurisdictional.
Fraud in obtaining a judgment may be of two classes, (1) fraud which prevents a party from fairly prosecuting his cause of action or defense, and (2) fraud practiced upon the court or its process. Ely Walker Dry Goods Co. v. Smith, 69 Okla. 261,160 P. 898; Stutsman v. Williams, 87 Okla. 64, 209 P. 406; Steel v. St. Louis Smelting Refining Co., 106 U.S. 447, 27 L.Ed. 226, 1 S.Ct. 389.
Most of the cases deal with the fraud of the first class, and our cases in which we make the broad statement that extrinsic fraud that will authorize the vacation of judgments must be such as prevents the complaining party from fairly presenting his case, such as those cited in the majority opinion, involved only fraud of the first class. The writers apparently did not have in mind fraud of the second class. Judicial opinions should always be construed and applied as precedent in the light of the issues involved.
We are committed to the rule that fraud upon the court is extrinsic fraud which will justify the vacation of judgments. See cases last above cited. We are also committed to the rule that the willful allegation of false jurisdictional facts in a petition invoking the jurisdiction of the court is such fraud. Johnson v. Petty, 118 Okla. 178, 248 P. 848; Jones v. Snyder,121 Okla. 254, 249 P. 313. See, also, Wickersham v. Comerford,96 Cal. 433, 31 P. 358. While these were probate cases, no distinction should be made between probate cases and adversary cases when the fraud is of the second class. And we have made no such distinction. Federal Tax Co. v. Board of Com'rs, above. In Steele v. The Maccabees, 175 Okla. 471, 53 P.2d 231, we stated in the syllabus that false allegations in a petition which are mere surplusage do not constitute such fraud as will require the vacation of a judgment. The clear inference is that the rule would be otherwise if the false allegations were material. While there are not many decisions from this and other courts involving false allegations of jurisdictional facts, most of the authorities seem to support the rule we have followed up to now. 51 C.J. 284; 34 C.J. 282, quoted with approval in Sout v. Derr, 171 Okla. 132, 42 P.2d 136; Freeman on Judgments 5th Ed. § 1237; Brooks-Scanlon Co. v. Stogner,114 Miss. 736, 75 So. 596; Wood v. Wood, 136 Iowa 128, 113 N.W. 492, 125 Am. St. Rep. 223, 12 L.R.A. (N.S.) 89. The last-cited case seems to be contrary to the Iowa case cited in the majority opinion, which is the only authority cited in the majority opinion on this precise question. And the rule we have followed up to now is generally followed in divorce cases. 17 Am. Jur. 385; Sparrenberger v. District Court, 66 Mont. 496, 214 P., 85; 33 A.L.R. 464; Davidson v. Ream, 97 Misc. 89,161 N.Y.S. 73.
In El Reno Mutual Fire Ins. Co. v. Sutton, 41 Okla. 297,137 P. 700, 50 L.R.A. (N.S.) 1064, the insured recovered judgment on a false petition alleging that the property had been destroyed by fire. A suit in equity was filed to vacate the judgment. The trial court refused to vacate it, but this court *Page 411 reversed the judgment, calling attention to the fact that the judgment was obtained by false allegations in the petition as well as by false testimony. The syllabus refers only to false testimony, and in that respect is contrary to the view now prevailing in this state that perjury alone on an issue in the case constitutes fraud in the cause of action (intrinsic fraud) and not fraud in obtaining the judgment (extrinsic fraud).
The majority opinion seems to rest on the theory that there is no difference between perjury committed in the trial of the cause and fraud in invoking the jurisdiction of the court. But this and other courts have made a distinction between the two. Furthermore, there is a serious doubt as to the soundness of the rule that perjury in the trial of a case is not such fraud as will justify the vacation of a judgment either in equity or under the statute, which prevails in a majority of the states and is followed in our recent decisions. Our statute, 12 O.S. 1941 § 1031[12-1031] (4), makes no distinction between intrinsic and extrinsic fraud. The distinction is made by the courts as a matter of expediency, the theory being that to permit an attack on judgments because of intrinsic fraud, such as perjury in the trial of a case, would encourage such attacks, and that there would be no end to litigation. There is a division of authority on the question as to whether perjury alone is sufficient to vacate a judgment. 34 C.J. 285; 31 Am. Jur. 281. In the recent case of Publicker v. Shallcross, 106 F.2d 949, 126 A.L.R. 386, the minority rule was followed, and the United States Supreme Court denied certiorari. In the note at 126 A.L.R. 390 it is pointed out that in those states following the minority rule no flood of litigation has resulted from it.
In the Publicker Case, above, it was said that "truth is more important than the trouble it takes to get it," and it was pointed out that, in cases like the present one, two rules, both desirable in themselves, come into conflict, (1) the rule that there should be stability to judgments so that there may be an end to litigation, and (2) the rule that fraud vitiates all things and that persons should not be permitted to retain the fruits of their fraudulent conduct. And it was stated that "the court's effort to reconcile the two has led to a series of cases which are clear enough at either extreme, but blend in the center into a hazy region of uncertainty."
While it is true that a rule permitting attacks upon judgments for perjury alone would tend to encourage such attacks, it is equally as true that to deny such attacks tends to encourage fraud and perjury. Since courts are created to administer justice and to prevent injustice, I am inclined to the view that in case of doubt we should lean to the rule that would discourage fraud and perjury, to the end that courts may not be used as instruments of injustice.
It follows that I am of the opinion that either false allegations of facts necessary to state a cause of action in a petition invoking the jurisdiction of the court or the willful concealment from the court of facts that would defeat jurisdiction constitutes fraud upon the court and is fraud in procuring the judgment based thereon, and that such a judgment may be vacated under 12 O.S. 1941 § 1031[12-1031] (4).
Of course, as in all cases of fraud, the burden is upon the one charging fraud to clearly prove it. The burden would be upon petitioner to clearly prove, not only that the allegations were false, but also that Turner knew they were false and made them with an evil intent, or that the concealment was willful and designedly done.
2. The next question is whether negligence on the part of the petitioners in not defending the quiet title suit is a part of their cause of action to vacate the judgment, which must be excused by them in their petitions, where the fraud charged is of the second class — fraud upon the court. Turner cites no authority holding that such an allegation is necessary. Citizens Bank Trust Co. v. City of Pryor Creek, 66 Okla. 164, *Page 412 168 P. 208, involved fraud of the first class — fraud preventing the opposite party from presenting his defense. This case follows the equity rule in such a case. Suits, such as the present one based upon fraud upon the court, are for the purpose of protecting the jurisdiction of the courts and to prevent them from being used as instruments of fraud and injustice, and it should not be fatal to the case that the indirect effect is beneficial to the party seeking to vacate the judgment. It would seem that, in such a case, the lack of diligence of the opposite party would not be an element of the cause of action seeking vacation of the judgment, and that it need not be negatived in the petition.
In Johnson v. Petty, above, we stated:
"In such cases courts of equity grant relief, not only to prevent a wrong to the injured party, but to 'to frustrate an attempt to make the court an instrument of oppression in aid of a surreptitious sham founded on wrong artifice.' Sampson v. Sampson, 225 Mass. 451, 112 N.E. 84."
I conclude that the petitions stated causes of actions for vacation of the judgment, good as against the demurrers thereto, and I respectfully dissent.