(concurring).
I am in accord with the opinion written for the majority by Mr. Justice Burnett. But there is one point which I would like to emphasize. Hence, this concurring opinion.
All must agree, it seems to me, that the true intent of the contracting parties was that the insurance money provided for by the insurance contract would be payable only if Buntin died during the life of the policy. By reason of Buntin’s fraud, the Court was tricked into requiring the Insurance Company to pay this insurance on a finding that Buntin did so die. It is now admitted that he is living, and that some $30,000 of this money is in the possession of those beneficiaries who were not parties to the fraud, but whom Buntin intended to benefit by means of his fraud.
The only difficult question, as I see it, is whether the fraud of Buntin is so intrinsic as to defeat the suit of the Insurance Company in these subsequent independent proceedings instituted to procure a return of what is left of that money.
If the fraud amounts to nothing more than false evidence introduced to establish the affirmative or the negative of the issue which the Court is to determine, it is intrinsic, of course. Perjury or a forged signature, nothing else appearing, would fall within this category. But, as said in the majority opinion, there exists in such situations a fair opportunity for the introduction of testimony contradictory of such perjured testimony, and by cross-examination there is afforded an additional opportunity to expose the fraud.
On the other hand, if the fraud is of a character which has prevented the defrauded litigant from interposing *530the only defense available in the suit, it is extrinsic fraud for which — nothing else in the way — the defrauded party may recover in an independent subsequent chancery proceedings, as I understand the law.
The fraud may be of a kind so close to the line of demarcation between intrinsic and extrinsic as to make it difficult to determine upon which side of the line the fraud in question falls. Some acts of fraud may possess characteristics coming within the definition of each. In that plight, the intrinsic fraud characteristics ought not to prevent a Court of equity in a subsequent independent proceedings from ordering the return to the defrauded party of the property of which he was defrauded, and of which the beneficiary of that fraud is still in possession, if, in fact, the defrauded party was deprived by the peculiar nature of the fraud in question of its only available defense. That this is a correct rule of law seems to be made clear by 49 C.J.S., Judgments, sec. 372, pages 740-742, in its discussion of extrinsic fraud, wherein it declared the rule to be that
‘'‘the fraud must not be something which was actually or potentially in issue in the case, unless the interposition of the defense ivas prevented by fraud or conduct of the opposite party.” (Emphasis supplied.)
Keeping that rule in mind, let it now be recalled that this is not a case wherein a party simply disappeared and was unheard of by those who would be expected to hear, etc., for a period of seven years. There was no cause of action against this Insurance Company, unless Buntin died within the life of the policy; that is, within eighteen months after his disappearance. Almost immediately after his evilly conceived, self-made surreptitious *531disappearance, Bnntin concocted a canse of action by very cleverly simulating tbe occurrence of suicide.
That simulation of suicide was, per se, evidence of bis death, and, under the circumstances related in the decision of this Court in the former suit, almost conclusively required a finding that Buntin died while the policy was in force, unless the Insurance Company could show that he still lived. The concocted evidence being what it was, that was the only defense available to the Insurance Company. The decision in 178 Tenn. 437, 159 S.W.2d 81, discloses the fact that the Insurance Company unsuccessfully did everything within its power to find Buntin, for it was convinced, apparently, that his suicide was simulated.
Buntin, however, having concocted a cause of action against the Insurance Company, and, by the same token, having furnished evidence conclusive in support thereof unless his live body (or the equivalent by proof) could, in effect, be produced, then did cleverly and cunningly set about not only to furnish more evidence in support of the bogus cause of action, but, in addition, to deprive this Insurance Company of the only defense available to defeat it. He did this by devices which completely concealed his whereabouts, his identity, or the fact that he existed. He did not just disappear for more than seven years. He deliberately and successfully made it appear by the fraudulently conceived devices mentioned that he had died almost at the beginning of that seven-year period. This was fraud deliberately conceived to prevent the Insurance Company from interposing its only defense, to the end that it, the Insurance Company, would be “fleeced” of its money for the benefit of the wife and children whom he was deserting.
*532This premeditated and perfectly executed scheme did deprive the Insurance Company of its only available defense. In that sense, therefore, it was extrinsic as well as intrinsic fraud. And being such, the Insurance Company is entitled for all the reasons set out in the majority opinion to maintain this suit, I think.