A defense to the original complaint was-sufficiently set out in the answer, and the demurrer to it was-properly overruled.-
The plaintiffs filed an amended complaint seeking to-review a decree upon which the defendant relied as confirming his title against them, but the court struck it from the files and refused their application for leave to file it. All questions presented by the appeal grow out of the court’s-action in this regard.
The question whether a bill of review can be filed without leave has been elaborately discussed in the briefs, and many authorities cited as bearing upon it. But we do not see how its determination can aid to a conclusion in this cause. For if leave was necessary, and the complaint disclosed any right of review, the court erred in refusing the leave; and even if leave was not necessary, but the complaint showed no right of review, the court’s action was not prejudicial. So that the sufficiency of the complaint to entitle the plaintiffs to review the judgment in their former proceedings for review is the question on which our conclusion depends.
It is insisted that the complaint was sufficient as to all the plaintiffs, first, as showing fraud in obtaining the judgment attacked ; and, second, as showing that said judgment was rendered against the plaintiffs while they were infants, and while they were ignorant of facts that would have resulted in a different conclusion if brought to the attention of the court. If mistaken in this, it is insisted for Willie N. Wood-all that the complaint discloses an error in the judgment as to her, and that she brings this suit to correct it before arriving at full age.
of i. The judgment attacked was rendered in a proceeding instituted by these plaintiffs, through their guardian and next friend, against the defendant, to review a judgment under which lands had been condemned and sold to the defendant’s grantor, who was not the plaintiff in the judgment. The relief was denied upon the ground that the judgment had been executed, and the lands acquired by the defendant, who was adjudged to be a stranger to it.
The complaint alleges that the defendant was not a stranger to the judgment, but that it had been assigned to Jacks, the defendant’s vendor, and that they in fact purchased the land together; that the plaintiffs in that proceeding tendered a copy of the decree as an exhibit to their complaint, and the defendant tendered a copy of his deed as an exhibit to his answer, but that neither exhibit was in fact filed among the papers; and that if they had been filed, the former would have shown that the purchaser was the assignee of the judgment, while the latter would have shown that the defendant was interested with the assignee in his purchase. The judgment disclosed its assignment to Jacks, and if a copy of it had been brought to the attention of the court, it would have been seen that when he purchased the land he was not a stranger to the judgment. But the assignment was a matter of record, and might and should have been known to the representatives of the plaintiffs. The defendant did nothing to conceal it, or to suppress it as a fact in the case. It does not appear that plaintiffs’ representatives were ignorant of its existence, or, if they were, that this fact was known to the defendant. From the allegations it may well be that the importance of the assignment was overlooked or misunderstood by the defendant, as well as by the representatives of plaintiffs who are not charged with any fraud or wilful misconduct in the conduct of the cause. The complaint charges no wrong done by the defendant, unless it was hi's duty to supply the defects in the case made by his adversaries by proof of whatever else he might know to their advantage. This is more than the law exacts. He might be chargeable with fraud for any material suggestion of falsehood or suppression of truth practiced by him in making out his own case, but his mere failure to make proof of a matter relied upon by, and possibly beneficial to, his adversary is not a fraud.
If the deed exhibited with the answer had been brought to the court’s attention, it could not have changed the. result. It would have shown that the defendant acquired the land from the purchaser at judicial sale in exchange for other lands, but this did not show any common interest between the defendant and his vendor in the purchase, or that his vendor was the owner of the judgment. Since the presence of the deed could not have changed the result, its absence affords no ground of complaint.
2. Bill of review for new 2. It is also insisted that, as the plaintiffs were ignorant of the fact of the assignment of the judgment, proof of which would have affected the result, and were minors when the decree was rendered, they are entitled to have it reviewed. But to justify a review on the ground of. new proof, it must appear that the proof could not have been used at the time the decree was rendered. Story’s Eq. PI., sec. 404. Such is not the case made by the complaint. Any decree of diligence would have ascertained and brought out what is now relied on, and this must defeat the review sought unless the infancy of the plaintiffs exempts them from the rule of laches.
3 infant plaintiff estopM by judgIt is argued that laches is never imputable to infants. This ° ^ is sometimes stated as a general rule, but the exceptions to it are as generally recognized. When infants by their guardian or next friend go into court to assert their rights, they proceed under the eye of the court, and are supposed to enjoy its care and protection, and conclusions therein reached are as binding upon them as upon persons sui juris, 1 Herman on Est., sec. 164; Corker v. Jones, 110 U. S., 317; Tyler on Infancy, p. 172; Winchester v. Winchester, 1 Head, 484; see Bickel v. Erskine, 43 Iowa, 213 ; 1 Black on Judg., sec. 198.
4. when mfant n0t «> time to show cause against. Judgment, 3. The case made by Willie N. Woodall depends upon . . 1 r the construction to be given to the eighth subdivision of sec-0 ° tion 3909 and section 5 x 84 of Mansfield’s Digest. Whether a judgment rendered in a proceeding to review a decree comes within their purview is a question not decided; if it does, the right is confined to defendants in the decree attacked. For by the terms of the statute, the right to review exists in a minor only where by the former practice it was proper to reserve in the decree his right to show cause, and this was confined to infant defendants, 1 Dan. Ch. Pl. & Pr., 72-3; Williamson’s heirs v. Johnston, 4 Mon. (Ky.), 255; Gregory v. Molesworth, 3 Atk., 626; Winchester v. Winchester, 1 Head, 484; Harris v. Youman, 1 Hoff. Ch., 178; see Joyce v. McAvoy, 89 Am. Dec., 178, note, p. 185, and cases cited.
As the judgment attacked was rendered in a cause in which the complaining infant was the actor, the statute can not avail him.
Having concluded that the amended complaint did not state facts entitling any of the plaintiffs to attack the judgment, we think there was no prejudice in the court’s action, in regard thereto, and the judgment is affirmed.