The bill in this case was filed on the 10th day of December, 1917, by Jack Jones against W. J. Edmondson and Mrs. Lena Page, as administratrix of the estate of J. R. Castleberry, deceased, and seeks relief against a proceeding in the probate court of Calhoun county, through which, as the bill *Page 134 avers, the respondent Edmondson and Castleberry deprived the complainant of all his property without notice to him or an opportunity to be heard, and without compensation or resulting benefit to him. The ground upon which he seeks relief is that the several orders and decrees of said court looking to the sale of his property were but the carrying out of a conspiracy and concoction of fraud between the said Edmondson and Castleberry to deprive the complainant of his property and acquire it for the said Edmondson, or Edmondson and Castleberry.
To the end of showing such fraud as will justify the interference of a court of equity, the bill avers that, although the complainant was not at the time a resident of Calhoun county, a proceeding was instituted in the probate court of said county on, to wit, November 30, 1913, to have complainant adjudged insane; "that he had no notice of the said proceeding for inquisition of lunacy against him in said court of probate; that he was not present in said court at any time during any of said proceedings, and was not at said time (November 30, 1903), a resident of Calhoun county, Ala., but was, and had been since the early part of July, 1903, a resident of the county of Mobile; * * * that on the 30th day of June, 1904, at the time said J. R. Castleberry was appointed guardian of complainant by said court of probate, complainant was not a resident of Calhoun county, and was not an inmate of any hospital for the insane in Alabama;" and, further, "that on the 30th day of June, 1904, said J. R. Castleberry, now deceased, filed his petition in said court of probate setting forth that your complainant had been adjudged in said court of probate non compos mentis, and that he had property requiring the care of a guardian of the value of $250, and praying that he, said Castleberry, be appointed as such guardian; and on the same day (June 30, 1904), said J. R. Castleberry filed his bond in said court of probate in the sum of $500 as guardian of your complainant, and one of the sureties on said bond is the respondent W. J. Edmondson. And on the same day (June 30, 1904), the judge of said court of probate issued to said J. R. Castleberry letters of guardianship on the person, rights, and property of complainant;" that as such guardian there came into the hands of said Castleberry personal property belonging to the complainant of the value of $180 and real estate worth $3,000; that the annual rent of said real estate was $250; that thereafter the said Castleberry made application to the probate court for the sale of said property ostensibly for the payment of debts, and for the maintenance of complainant and his minor children; that said sale was ordered, and at the sale the respondent Edmondson became the purchaser of the land at and for the sum of $250; that the personal property was sold for $22.40, Edmondson and Castleberry becoming the purchasers of all such personal property, except a plow and crowbar sold to one Aderhold for 50 cents, and a scything cradle sold to one Wilkins for $1.10. It is also shown that immediately after said Castleberry procured a confirmation of the sale of said property he proceeded to make a final settlement of his guardianship. The bill further avers:
"Your complainant avers and charges that said J. R. Castleberry did not file said application to sell said lands as his guardian for the purpose of paying debts, and for the maintenance of your complainant and his children, as alleged in said application; no debts in fact existed except as herein stated, and the rents of said lands and said personal property was sufficient to pay said debts and to support complainant, had there been a desire or intention to provide for his maintenance; but said Castleberry, as guardian, fraudulentlycolluded with said W. J. Edmondson and fraudulently formed andentered into the conspiracy with him to procure the decree ofsaid probate court to sell said lands for the purpose ofenabling said Edmondson to purchase said lands at public outcryfor the fictitious claim of a debt and for less than theirvalue, as complainant avers was done. And said A. M. Morgan, asguardian ad litem, fraudulently failed to make any defense tosaid application to sell said lands, and failed to requireproof of the existence of debts, offered no evidence on saidhearing of said application, and failed to even be present andcross-examine the witnesses on behalf of said petitioningguardian, but left the whole proceedings for the sale of saidlands to the management and control of counsel selected andemployed by said petitioning guardian, J. R. Castleberry. And complainant avers that the said decree of said court of probate for the sale of said lands, and the sale thereof thereunder,was the result of said fraudulent collusion between said J. R.Castleberry, guardian, and said W. J. Edmondson, pretendedcreditor, as aforesaid, and of the said fraudulent conduct on [of] the said A. M. Morgan, guardian ad litem, in permittingsaid lands to be sold by making no defense to said applicationfor sale, as could have been done in the ordinary and properdischarge of duty." (Italics supplied.)
"That a court of equity possesses jurisdiction to relieve against fraud in judicial proceedings is everywhere a universally recognized principle. The judgment or decree against which relief is invoked, however, must have been procured by fraud, either in its original rendition, or by a subsequent fraudulent alteration; and this fraud must, in a sense, be shown to be actual and positive. When this is clearly established by satisfactory proof, it is honorable to our system of equity jurisprudence that such infection of fraud is made to vitiate every transaction, and the solemn judgments of courts are no exception to the salutary rule." Cromelin v. McCauley et al., 67 Ala. 542; Evans v. Wilhite, 167 Ala. 587,52 So. 845; Evans v. Wilhite, 176 Ala. 287, 58 So. 262; Curry v. Peebles, 83 Ala. 225, 3 So. 622; Mitchell v. Rice,132 Ala. 126, 31 So. 498; *Page 135 Kerr on Fraud and Mistake, 352, 353; Galatian v. Erwin, Hopk. Ch. (N.Y.) 48.
The averments of the bill clearly bring this case within the principle that fraud, to be available as a predicate for relief against a judgment at law, must be fraud in the procurement of the judgment. The bill, in terms, avers that there was a concoction or conspiracy between the respondent Edmondson and Castleberry to fraudulently procure the sale of complainant's property to satisfy fictitious claims, as a means of depriving complainant of his property and procuring it for said Edmondson and Castleberry, and that this conspiracy and fraud was carried out through the probate court, resulting in a sale of the property to said Edmondson and Castleberry for about one-twelfth of its real value, without notice to the complainant, and at a time when complainant was incapacitated from protecting his own interest; the said Castleberry at the time acting in the fiduciary capacity of guardian, and posing as complainant's representative.
The bill further avers that Morgan, who was appointed by the court guardian ad litem to protect the interest of complainant in the proceeding, was a party to the fraud and in collusion with Edmondson and Castleberry, and avers, in terms:
"Said A. M. Morgan, as guardian ad litem, fraudulently failed to make any defense to said application to sell said lands, and failed to require proof of the existence of debts, offered no evidence on said hearing of said application, and failed even to be present and cross-examine the witnesses examined on behalf of said petitioning guardian, but left the whole proceeding for the sale of said lands to the management and control of counsel selected and employed by said petitioning guardian, J. R. Castleberry."
The statute then in force (Code 1896, § 2323) provides:
"On the filing of an application for the sale of property of the ward, other than debts and choses in action, whether for the payment of debts or maintenance of a person of unsound mind, or for the maintenance and education of a minor, or for reinvestment, the court must appoint a day for the hearing, not less than twenty nor more than thirty days thereafter, and must appoint a suitable and competent person, not of kin or counsel to the petitioner, as guardian ad litem to represent the ward, who must put in issue the facts stated in the application and require proof thereof."
This statute first appeared in the Code of 1896, and was not in force at the time of the decision of this court in the case of Daughtry v. Thweatt, 105 Ala. 615, 16 So. 920, 53 Am. St. Rep. 146, and what it said in that case with reference to the appointment of a guardian is not apt as an authority here; that case being decided before this statute became the law.
These averments, if true, and on demurrer they must be so treated, not only show fraud offending the rights of the complainant, but constitute a fraud upon the law and the probate court, and are sufficiently averred as a predicate for relief against the proceedings in question. Smith et al. v. Smith et al., 153 Ala. 517, 45 So. 168. To say that such fraud does not warrant relief in a court of equity would be to cast dishonor upon our system of equity jurisprudence. Evans v. Wilhite, 176 Ala. 287, 58 So. 262; Hardeman v. Donaghey,170 Ala. 362, 54 So. 172; Humphreys v. Burleson, 72 Ala. 1; Mock's Heirs v. Steel, 34 Ala. 198, 73 Am. Dec. 455; U.S. v. Thockmorton, 98 U.S. 61, 25 L.Ed. 93; Hall v. Pegram, 85 Ala. 529,5 So. 209, 6 So. 612; French v. Shotwell, 6 Johns. Ch. (N.Y.) 235; Currier v. Esty, 110 Mass. 543; Hibbard v. Eastman, 47 N.H. 507, 93 Am. Dec. 467; Bomesly v. Powell, 1 Vesey, Sr., 119, 120; s. c., 1 Vesey, Sr., 285; Galatian v. Erwin, Hopk. Ch. (N.Y.) 48.
This case and those cited in support of the conclusion we have stated are easily distinguishable from De Soto Co. v. Hill, 188 Ala. 667, 65 So. 988, where the court declined to interfere because of newly discovered evidence, and the case of Hendley v. Chabert, 189 Ala. 258, 65 So. 993, where relief was denied because of failure of the party complaining to acquit himself of negligence in presenting his defense at law. Here the complainant was not a party to the proceeding, had no notice thereof, and his misfortune incapacitated him to care for his own interest; he was non compos mentis. The bill shows that respondent Edmondson and Castleberry were not only practicing a fraud on complainant in procuring a sale of his property, but were practicing a fraud on the court, and merely using it as a cloak or cover to hide their covinous purpose to defraud the complainant of his property.
Copies of the proceedings and decrees of the probate court relating to the sale of the complainant's property are made exhibits to the bill, and while there are some irregularities in them, yet, on the showing made by the bill, the decrees of the court are not subject to collateral attack, and can only be impeached on a direct attack for fraud in their procurement. Knabe v. Rice, 106 Ala. 516, 17 So. 666.
The bill in this case is filed against one of the original parties to the fraud and the personal representative of the other, and shows that each of the parties, Edmondson and Castleberry, acquired a part of the property by purchase at the sale under the decree of the probate court.
"Whenever the legal title to property, real or personal, has been obtained through actual *Page 136 fraud, misrepresentation, concealments, or through undue influence, duress, taking advantage of one's weakness or necessities, or through any other similar means or under any other similar circumstances which render it unconscientious for the holder of the legal title to retain and enjoy the beneficial interest, equity impresses a constructive trust on the property thus acquired in favor of the one who is truly and equitably entitled to the same, although he may never perhaps have had any legal estate therein; and a court of equity has jurisdiction to reach the property in the hands of the original wrongdoer or in the hands of a subsequent holder, until a purchaser of it in good faith and without notice acquires a higher right, and takes the property relieved of the trust." Kent v. Dean, 128 Ala. 600, 30 So. 543; Smith v. Smith et al., 153 Ala. 504, 45 So. 168.
Under the doctrine of the foregoing cases, the respondent Edmondson and Castleberry, by acquiring property through fraud, as averred in the bill, are chargeable as trustees ex maleficio, and a court of equity will require them to account for the rents, income, and profits thereof, for the use and benefit of complainant, as well as divest them of the legal title and reinvest it in the complainant.
To avoid the imputation that complainant is guilty of laches in respect to filing the bill, it avers that within a few months after complainant's commitment to the hospital for the insane he escaped therefrom, and has not since been confined therein; but that for the past eight or ten years, being still in a demented condition, he has wandered from place to place, and about two years before the filing of the bill, while in Meridian, Miss., he partly recovered his power of reasoning and memory, and from that time gradually improved until the early part of the year 1917, when he was completely restored to sanity, and in November, 1917, applied to the probate court of Calhoun county for an order revoking the order of the court adjudging him insane, which order was granted November 4, 1917, and the bill in this case was filed, within less than 30 days after such order was entered, against one of the original parties to the fraud and the personal representative of the other. It is a familiar rule that where fraud is clearly shown the court will look with more than usual indulgence upon any disability under which the complainant may labor in excusing him for delay in asserting his rights. In view of these averments it cannot be said that this complainant was guilty of laches in respect to the filing of this bill. Ala. Coal Coke Co. v. Gulf Coal Coke Co., 171 Ala. 544, 54 So. 685; Heflin v. Ashford, 85 Ala. 125, 3 So. 760.
It being shown that Castleberry during his lifetime received a part of the property as the result of the alleged fraud, and that he participated in and was a party to the conspiracy to deprive the complainant of his property, his estate may be held liable for the value of whatever property he received, if the fraud charged in the bill is established by the proof; and hence the bill is not subject to the objection that there is a misjoinder of parties defendant.
The bill was not subject to the objections pointed out in the demurrers, and the decree overruling the demurrers must be affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE, and SOMERVILLE, JJ., concur.
GARDNER and THOMAS, JJ., concur in conclusion only, for reasons stated in opinion of Justice THOMAS, infra.
McCLELLAN, J., dissents, holding that the bill was subject to demurrer, and the decree rendered should therefore be reversed.