The issue tried out was formed by a contest over whether the appellant should be removed as guardian, and this proceeding was finally so dealt with as that the trial court passed upon the questions presented in a suit in equity. The complainant has evidence which, if there be no tenable avoidance, we may assume justifies the decree appealed from. But while this may be so, if there is no bar to considering and giving weight to such evidence, we have first to decide whether a plea of estoppel by adjudication has been sustained, and whether the trial court was warranted in acting in disregard of that plea, as it did do. We need not elaborate upon the proposition that, no matter how meritorious the claim of appellee may be, ordinarily he may present it but once.
1. judgment : partiesS1con-ss: aSenaánts.mt 2. judgment : conclusiveness: matters con-eluded: conrecora1 o£ The appellant presents a plea which, in due form, asserts that appellee is estopped to litigate whether ór not appellant owned the land with the proceeds of which it was attempted to charge her. This plea is based upon the claim that, though nominally the defendant in a former action, she was the real party in interest and real plaintiff therein, though one Harness was the nominal one; that, in that suit, she and her ward, and minor son, were the defendants named; and that it was therein adjudicated that her said son, the real plaintiff in the present suit, had no title to, claim upon, or interest in, the land involved in both suits. It appears without conflict that both said parties defendant in the first suit made due appearance therein, and that the son was duly served with notice and duly defended by a guardian ad litem. The petition in the first suit, with some additions to be noted in another connection, was the usual one to quiet title; the decree was within
The plea interposed is not the strict res adjudicata, but urges an estoppel to relitigate whatever is covered by any finding in the first suit which must have been the vital basis of the decree therein entered. On such plea the court may go beyond the face of the judgment, and the right to litigate successfully in the second suit may be foreclosed, because it is found upon such investigation that the decree pleaded could not have been entered without finding against the suitor that fact upon establishing which his success in the second suit depends. And both here, and, of course, as against an express finding that defendant has no title, it is immaterial that the loser in "the first suit failed there to defend with all he had. These propositions are so well settled that citations in their support would be mere pedantry. Then, too, the minor filed in the first suit a sworn disclaimer, in which he declares in manifest effect that he has no claim or title, and ought not to have; that conveyances made to him are not effective; that later conveyances to his mother are, and ought to be; and that he is fully ad
The decree in the first suit was set aside and disregarded. We are not able to find that it was even attacked. There certainly is no attack in terms. There is and can be no claim that the disregarded judgment lacks jurisdiction. We are unable to find any allegation that same was obtained by the practice of any fraud upon parties or court. The allegations of the petition for removal, which ivas the vehicle for complaining of the appellant’s dealing with this land, do not go beyond asserting that the interests of the mother in said land are adverse and hostile to the complaining minor, wherefore he prays that she be cited to show cause why she should not be removed as guardian; that, upon sufficient showing having been made, she be removed, and some suitable person appointed in her stead; and that said guardian be given authority to bring any necessary action or actions for the recovery of property belonging to the minor; and that the court make such other and further orders as may be deemed just in the premises, including a decree that the title to the proceeds of said land is in and should be transferred to the minor. Not a suggestion by way of replying to the plea of estoppel by adjudication through said first decree.
3. judgment: iiQef?aperjury. If this was not the theory of the trial court, it must have proceeded on one or both of two other theories: either because it found (and it does so find) that the minor is the true owner of the property, and that no subsequent conveyance from his grantor was sufficient to defeat his rights; or that the mother, being under contract obligation to release a mortgage upon the land, had instead obtained said mortgage, transferred it, caused a sheriff’s deed title to be erected upon it, and the grantee in the sheriff’s deed to convey to her.
It but states a truism to repeat that it will not suffice •to set aside the first decree that the trial judge in each of two suits disagree on the merits. If that suffices, a third judge may settle these merits for himself, and so make all that was done in the present suit waste paper. That the
It is clearly made out that.no fraud was practiced upon the court. It had before it every fact arousing suspicion which was before the last court. Both courts had the minor’s disclaimer. Both were advised of every step taken to obtain the decree in the first suit. Both courts were advised that appellant contracted with one Harness to convey the land in controversy to Harness by warranty deed; that, when she furnished abstract, Harness claimed there was a defect in the title, and an adverse color of title, whereupon it was agreed between them that Harness was to begin an action in his oAvn name to quiet the title against all claimants, or supposed claimants; that she agreed to pay all costs, including a stated attorney fee to a stated attorney; that provision was made for paying part of the purchase price to her, if and when said action furnished a merchantable title; that the reason for bringing the action to quiet title in the name of Harness was that he is the only one that claims absolute fee simple title, and the only one who can rightfully bring the action on part of appellant; that it was agreed that, when her minor son, Walter, became
4. Judgment : equitabie re-insufficiency. If there be any fraud such as would set aside a decree, at least on collateral attack, ft must be because, in procuring the appointment of appellant to be guardian, she states in her application that she knows of no property that then belonged to the minor, or that he was likely to fall heir to until her death, it being claimed she well knew the fact to be then that her minor son was the owner of the tract in dispute and had obtained title thereto by virtue of a warranty deed executed to him by his uncle Jacob; that she paid oif a mortgage on the land executed by Jacob, and instead of satisfying the same, transferred it to one Davenport, with the understanding that Davenport should foreclose and obtain title by sheriff’s deed and thereafter convey to her, which arrangement was carried out; and this though she was under obligation by assumption to pay the said mortgage, — to which last matter consideration has already been given; further, that she stated, in a report later filed by her as guardian, that no money or property of any kind belonging to said minor had come into her hands since her appointment, when in truth she had received the proceeds of selling said land. It is apparent that this, and the statement that the minor had no property, is another form of stating the ultimate claim, i. e., that appellant practiced a fraud upon the court in securing her appointment as guardian, by falsely asserting, knowingly, that the land in question did not belong to the minor. To this there are two answers: These statements were not made in the cause in
The views we have expressed, of course, make it unnecessary to consider the question of who in truth had title. For the reasons advanced herein, we are constrained to hold that the decree below must be — Reversed.