On Rehearing
SIMPSON, Justice.The necessity of responding to the aplication for rehearing is doubted, since we treated every matter germane to this appeal on original deliverance. Nevertheless, in deference to the earnest argument of counsel, we will make a brief response.
It has already been pointed out that estoppel is out of consideration since, from the allegations of the substitute cross-bill, this defense must be availed of by special plea, and this appeal is from a decree only sustaining the demurrer going to the cross-bill as a whole.
Neither would it be proper to treat of those grounds of demurrer alleging laches, since such grounds were addressed to a certain aspect of the cross-bill, and as stated, the decree appealed from was one sustaining the demurrer to the cross-bill as a whole.
Hence, to discuss either of the foregoing mentioned defenses would at most be dictum, which the Court is not inclined to indulge in.
Finally, it is argued that the case of Steiner Bros. v. Slifkin, 237 Ala. 226, 186 So. 156, sustains the contention of the appellee that the fraud alleged and discussed in our original opinion is not pleadable in that it seeks to vary the terms of the written contract. That case is distinguishable from the instant one because, inter alia, the plea there held to be subject to demurrer was interposed in an action at law. *312The case at bar is in equity. The oft-cited case of Kennedy’s Heirs and Executors v. Kennedy’s Heirs, 2 Ala. 571, 592, points up some of the distinctions:
“ * * * The fraud that avoids a specialty at law, must relate to the execution of the instrument. * * * A defendant may give evidence tending to show, that the deed was mis-read, read but in part, or mis-expounded to him, or that one instrument was substituted for another, and thus his signature was fraudulently obtained, — this is what is meant by ‘fraud in the execution’. * * ’* But the jurisdiction of Chancery is much more extensive. Courts of equity administer remedies for rights, in cases, in which Courts of law recognize no rights at all; or if recognized, they are left to the conscience of the parties. * * * There are cases of losses and injuries by mistake, accident and frauds, as well as undue advantages and impositions, betrayals of confidence and unconscionable bargains; in all which, Courts of equity will interfere and grant redress; but of which the common law takes no notice, or silently disregards.
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“ ‘It may be correctly said, that the maxim, that equity follows the law, is a maxim liable to many exceptions; and that it cannot be generally affirmed, that where there is no remedy at law in the given case, there is none in equity; or, on the other hand, that equity in the administration of its own principles, is utterly regardless of the law. * * *
“ ‘Fraud is defined by the civilians to be any artifice or deception used to cheat, or deceive. This definition would however seem to embrace only actual or positive frauds. But fraud, as understood and denounced in equity, includes all acts, omissions, or concealments which involve a breach of a legal or equitable duty, trust or confidence justly reposed, which are injurious to another, or by which an undue or unconscientious advantage is taken of another. And Courts of equity will not only interfere in cases of fraud, to set aside acts done; but will also if by fraud, acts have been prevented from being done by the parties, interfere and treat the case precisely as if the acts had been done. * * * ’ ”
See also J. A. Fay & Egan Co. v. Independent Lumber Co., 178 Ala. 166, 59 So. 470; Randolph v. Randolph, 245 Ala. 689, 18 So.2d 555; Fuller v. Scarborough, 239 Ala. 681, 196 So. 875: Seeberg v. Norville, 204 Ala. 20, 85 So. 505; and Morgan v. Gaiter, 202 Ala. 492, 80 So. 876.
Opinion extended and application overruled.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur.