1. Judgment: vacation of foe. fraud: relief in equity after one year: conditions of. I. The fourth sub-division of section 3154 of the Code provides that the court in which a judgment has been rendered may vacate or modify such judgmént, after the time at which it was obtained, “for fraud practiced by the successful party in obtaining it.” But, to avail himself of the remedy provided in this section, the party against whom the judgment is rendered must bring his action within one year from the date of the judgment. But it is held that courts of equity, have juisdiction to grant relief against judgments obtained by fraud,, in cases where the fraud is not discovered until after *518the expiration of one year from the rendition of the judgment. Young v. Tucker, 39 Iowa, 596; Dist. Twp. of Newton v. White, 42 Id., 608. And when the party entitled to the remedy lias been prevented from availing himself of it during the years allowed by the statute for bringing the action, by tho fraud or procurement of his adversary, a court of equity undoubtedly has the power to grant him relief.
The statute, however, defines the remedy to which the party is entitled, whether the action be brought during the year provided for by the statute, or after its expiration. The jurisdiction of the court of equity is to grant the relief provided by the statute, but it has power to grant such relief after tho expiration of the time within which it may be sought by the proceedings prescribed by the statute. Whether a party is entitled to the remedy, then, must be determined with reference to the terms of the statute.
2. -; -: facts not entitling to. Under the provisions of the sub-division of the section quoted above, the party against whom a judgment has been obtained is entitled to relief, when by the cunning, .. ,. deception or artmce oi Ins adversary xie lias been prevented from prosecuting his claim or making his defense, or when by such means his adversai-y has obtained an unconscionable advantage by the judgment. The term “fraud” is used in the section in its ordinary sense, “and it would include any act, omission, or concealment which involves a breach of legal or equitable duty, trust or confidence, and is injurious to another, and by which an undue or unconscientious advantage is taken of another.” Story’s Equity Jurisprudence, § 1871
The act of the defendant of which plaintiffs complain is, that die, with intent to mislead them, and to induce them not to appear and assert the priority of their lien upon the premises over the lien which he was seeking to establish by the action, agreed with them that he would pay them the full amount of their claim; and they allege that they relied on this agreement, and were induced by it to forbear making any *519defense in said action, and to permit him to take his judgment of foreclosure, but that he lias not j>aid their claim, and did not intend to pay it when he made the agreement.
This does not constitute such fraud in obtaining the judgment as entitles plaintiff to have it vacated.- There was no concealment or misrepresentation as to any existing fact, but plaintiffs contracted with full knowledge of every fact pertaining to the subject of the agreement.
In consideration of defendant’s agreement to pay them the amount of their claim, they agreed that they would noi assert the priority of their lien. The effect of the agreement is that they waived their lien, and accepted his agreement to pay the amount of the debt in lieu of it, and, in consideration of this waiver, he became legally liable for the amount of the debt. The question is not at all affected by the fact that he did not intend to perform the contract when he entered into it. His liability to pay the debt is created by his agreement, and it is in no manner affected by this secret intention.
There is no complaint that defendant is irresponsible, or that he cannot be compelled by the ordinary process of the law to perform his undertaking. Plaintiffs, then, have taken by the agreement all that they contracted for. They agreed to waive their mechanic’s lien on the property, or that it might be made subordinate to defendant’s mortgage, in consideration of his becoming personally responsible to them for the debt; and he has become liable for it. They have a personal claim on him for the amount, enforceable at law, and this is what he contracted to give them in lieu of their mechanic’s lien.
We think the order of the circuit court sustaining the demurrer is correct*.
Affirmed.