A court of equity will not relieve against a judgment at law, because of defenses available in a court of law, unless it is alleged and proved that the failure to defend successfully at law, was not attributable to any negligence or want of diligence on the part of the party complaining, but to accident, or to fraud, or act of his adversary. — 1 Brick. Dig. 666, § 376. lender the allegations of complainant’s bills, original and amended, there is no pretense that the failure to defend at law was attributable to any act of his adversary, or to. accident. It was the result of his own want of diligence, and he must bear the consequences of it.
An unsuccessful attempt, or an entire omission, to assert, in a court of law, a purely equitable defense, does not prejudice the right to relief in equity. — Calloway v. McElroy, 3 Ala. 406; Nelson v. Dunn, 15 Ala. 502. Or, if the party fails in the assertion of a good legal defense, or omits to make it, he may, notwithstanding, avail himself of an independent ground of equitable relief.— Greenlee v. Gaines, 13 Ala. 198. If the defense is cognizable, either at law or in equity, a court of equity will not intervene, after judgment at law, unless some special cause of interference is shown. — Foster v. State Bank, 17 Ala. 672.
The grounds on which relief is sought against the judgment at law, are, that it is founded on a promissory note, *4tbe consideration of which, is the purchase money of land ;■ that the complainant was induced into the purchase by the false representations of the defendant that he had and could-make title to the land; that, in fact, the title resided in third persons, from whom the complainant was compelled subsequently to purchase the lands. Prior to the Code, it may be these facts would not have constituted a defense available at law. Since the Code, they would form an available legal defense. The sum paid, -or contracted to be paid, in extin-* guishment, or, rather, in acquisition of the title from those holding it, would have been proper matter of set-off or recoupment against the note given to the defendant, and exceeding it in amount would have been a full answer to the suit at law.-Holley v. Young, 27 Ala. 203; Martin v. Wharton, 38 Ala. 637.
If the second amended bill presented matter of equitable relief, it made a new case, variant from and repugnant to that stated in the original and first amended bill, and was, therefore, properly disallowed. The allegations are that the defendant had a life estate in the lands, the value of which it is proposed shall be ascertained, and, on the payment of such value, relief had ag'ainst the judgment at law. The allegations of the other bill are that the defendant had no-interest in the lands, and, therefore, there was a total failure of the consideration of the note, on which the judgment is founded.&emdash; Williams v. Barnes, 28 Ala. 613.
There is no error in the decree" of the chancellor, and it must be affirmed.