The only question involved in this appeal is the one determined! by the interlocutory judgment sustaining the demurrer to the complaint on the ground that it failed to- state a cause of action. The action is brought to set aside a final judgment in partition entered after a sale of real estate in a partition action brought by this plaintiff against these defendants, and to set aside a sale directed by the interlocutory judgment in that action. The sale was made September 15, 1898, confirmed October 8, 1898, and final judgment thereupon entered. It seems that all parties are satisfied with the interlocutory judgment directing a sale. We must assume that all parties to the action were present in court at the confirmation of such sale and upon the rendition of the final judgment, and that no appeal was taken therefrom. The complaint alleges that plaintiff was present at the sale and a bidder thereat for the property.
These are the facts alleged in the complaint herein, and all of the material facts therein alleged, and upon these facts plaintiff asks that the final judgment, the order of confirmation and the sale be vacated, a resale ordered and an accounting by the purchaser for rents and profits and improvements since September 15, 1898, be directed.
I am unable to discover any precedent for an action of this character based upon similar fact. It is not unusual for a court of equity to exercise its functions in setting aside judgments and decrees which were obtained by the fraud of the party, but as said by Judge Folger in Stilwell v. Carpenter (2 Abb. N. C. 263): “ The question of fraud which is open to examination in such ease is as to something which intervened in the proceedings by which the judgment was obtained, * * * and it must have occurred in the very concoction or procuring of the judgment, and not have
Ho fraud is here charged in making the sale or in obtaining the confirmation of the same, or the final judgment for distribution of the proceeds of the sale. The sale might have been postponed by order of court on any sufficient grounds. That it was not postponed seems to constitute plaintiff’s sole grievance. On the facts set forth in this complaint, plaintiff applied to the court in the partition action for a postponement of the sale. The motion was denied on. the grounds, as the complaint alleges, “ the court holding that the title to. the real estate being undisputed, its sale could not be suspended while plaintiff was trying to establish her right to other property.” It appears by the complaint that subsequently a second motion was made “ for a stay pending the trial of her other action, but the court held that it ought not to hold the title in abeyance pending a determination of the issues in that' action, or, as the court stated, till the plaintiff could get rich.” .
■ That the partition action was the proper place to seek' a delay of the sale, which was the sole ultimate relief then or now desired, cannot be doubted. The facts were then all known to the plaintiff and presumably were all presented on these two applications.
Ho new fact is set forth in this complaint, except the fact that a trial has been had of the personal property action, and plaintiff has established the verity of the facts presented to the court on the two motions referred to, to wit: That the transfers made by plaintiff’s mother of the personal property were void. According to the complaint, however, the court on each application placed its decision on quite other grounds than the sufficiency of proof of the facts presented.. A court of equity having jurisdiction has, therefore, twice decided, as the complaint alleges, that the facts set forth in the complaint are insufficient to entitle plaintiff to the relief sought, to .wit: A postponement of the sale. It is difficult to' see how a court of co-ordinate jurisdiction can now reverse these decisions on the same facts. Such a practice would unsettle the stability of judgments and decrees. “ The general rule that the decision and judgment of a court, as to any matter within its jurisdiction, is conclusive upon the parties, and those in privity with them, is fundamental. It secures respect for judicial decisions, and terminates
Aside from the fact alleged that the court has twice passed upon the question here presented, I do not think that there are any facts stated in the complaint upon which an independent action like the present one can stand. Such an action is unnecessary. The matter can be properly and effectually treated in the partition action. The facts alleged are not subject to dispute. No trial of any issues, which can be framed in answer to any material fact alleged in the complaint, is necessary. The sale was had in September, 1898. The judgment of confirmation and final judgment were entered in October, 1898. The judgment in the action concerning the personal property was rendered in March, 1899. So the new fact, if the judgment in the personal property action can be considered a new or material fact, was available to plaintiff within six months from the date of sale and entry of final judgment; and a new motion, to set aside the sale and final judgment, was not barred by lapse of time, as provided by sections 1282 and 1283 of the Code of Civil Procedure.
This complaint does not present any facts upon which can be predicated a charge of fraud not available in the partition action by motion. In so far as fraud can be predicated upon the acts of Bertha, in defending the validity of the transfers of the personal property to her by her mother, it is at most but a legal conclusion and not debatable or issuable, and this legal conclusion is just as available on a motion in the partition action as it can be in an independent action.
I am, therefore, of the opinion that the learned trial court properly held that the complaint does not state facts sufficient to constitute a cause of action.
The judgments appealed from should be affirmed, with costs.
All concurred.
Interlocutory* judgment affirmed, with costs.
*.
Sic.