Collateral impeachment of fraudulent, judgment. I am of opinion that the demurrer must be sustained. The decree sought to be impeached partakes much of the nature of a judgment in rem. It is the judgment of a court having absolute and exclusive jurisdiction of the subject-matter. Gen[.] Stats., ch. 182, sec. 1. Its primary effect was to fix the status of the land: persons were only incidentally interested in it, according to their respective rights. The matter is not before us as the appellate court of probate. The attempt is to impeach the decree collaterally in an independent proceeding, brought indeed for that express purpose on the equity side of the court.
In my judgment the case will be rightly decided if we ascertain what facts, set up in the bill as the ground for annulling the sale, were involved, in such a way as to make part of the issue settled by the probate court in granting the license to sell, and, setting those allegations one side as res adjudicata, see whether enough is still left to entitle the plaintiffs to the relief they ask. That this will be correct, whether the decree be regarded as a judgment in rem or in personam, I consider abundantly settled by King v. Chase, 15 N.H. 9, Tebbetts v. Tilton,31 N.H. 273, and numerous other cases in our own reports where the same doctrines have been reaffirmed and applied, as well as by a multitude of cases, both English and American, collected in notes to the Duchess of Kingston's case, 2 Em. Ld. Cas. 573, and in Bigelow on Estoppel, part 1, seriatim.
In King v. Chase, after showing the conclusive effect of a judgment when pleaded, or given in evidence if there has been no opportunity to plead it, Chief Justice PARKER says (p. 15), — "But the judgment is thus conclusive only upon the matter which was directly in issue upon the former trial; and the question arises, What is to be understood by the matter in issue? * * All agree in the rule, but the difficulty lies in its application, in determining what is meant by a judgment directly upon the point."
In Tebbetts v. Tilton, BELL, J., says (p. 286), — "In most cases the fact of fraud is one wholly extraneous to the record. It relates to matters not involved in the issue determined in the case, and it may be alleged without denying the truth of the record. * * Where the fact of fraud is involved in the issue, it has been here expressly decided that such fraud constitutes no ground for impeaching the judgment. Demerritt v. Lyford, 27 N.H. 541. * * As the merits of the case are not to be re-tried, fraud, which ought properly to have been tried in the original action, cannot be set up to impeach the judgment, even though it was unknown and undiscovered at the time of the trial." In Adams v. Adams, 51 N.H. 397, BELLOWS, C. J., says, — "Nor will the judgment be avoided for fraud when the same question of fraud was tried in the original action."
What was the point in issue and determined by the probate court in *Page 402 decreeing the license to sell? The statute conferring this jurisdiction upon probate courts is as follows: "The judge of probate, on application of the administrator, may grant license for the sale of the real estate of any person deceased * * when the personal property shall be insufficient to pay the just demands by law chargeable to the estate." Gen. Stats., ch. 182, sec. 1.
The bill sets out that, in his petition for license to sell, this administrator alleged that the personal estate of said deceased was not sufficient to pay the demands against the same, and that the sale of the real estate of said deceased was necessary for that purpose; and, further, that the whole of said real estate was not more than sufficient for the payment of said demands. This allegation was indispensable to give the court jurisdiction; it was, indeed, the sole fact upon which the authority of the court to make the decree depended. The issue, and the only issue, to be tried was the truth or falsity of that allegation; and the decree was a direct and unequivocal finding of its truth. That this is so is not left all to inference, or to evidence aliunde as to what issue was in fact tried. It appears upon the face of the record. The administrator sets out specifically in his petition the only possible ground on which his right can legally stand, and the decree is in his favor. Whether the personal estate was sufficient to pay the debts was therefore adjudicated by the probate court in that proceeding, and cannot he inquired into here collaterally for the purpose of overturning that decree.
What is left of the allegations of fraud in the bill?
The allegation is, that the personal assets of the deceased, which came to the hands of the administrator, were nearly $17,000, while the debts were less than $100; and the fraud charged consists in the false representations made by the administrator to the judge of probate, in his petition for license to sell, that the personal property was not sufficient to pay the debts, and the procuring of a license when it ought not to have been granted and could not legally be granted for that reason; but the decree, being necessarily a direct adjudication of the truth of the facts stated in the petition, was necessarily an equally direct adjudication of the falsity of the facts stated in the bill on this same point. The allegation, that the claim of William Gordon was false and fabricated, is to be answered in the same way. If that claim had been used in the probate court as evidence of the indebtedness of the estate in order to obtain the decree, — which does not appear to have been the case, — and no other evidence of indebtedness had been offered, it would necessarily follow that the granting of the license was an adjudication that it was a just demand by law chargeable to the estate, according to the requirement of the statute. It is further to be observed, that we cannot inquire into the validity of that claim without reexamining the work of the commissioner, and probably disregarding another decree of the probate court whereby the report of the commissioner was allowed.
Upon the whole, it seems to me very plain that all the questions *Page 403 proposed for examination by this bill are exactly the same as would have come before the court upon appeal, neither more nor less, and are all such as must have been determined by the probate court in granting the license to sell.
It is true, the bill contains the extraordinary allegation that no evidence of the indebtedness of said estate, or of the amount of personal assets in the hands of the administrator, was ever furnished or made known to said probate court. But it cannot be seriously supposed that a matter of that sort can be inquired into in this way; and if it were inquired into and found to be true, what relief can this court, sitting here as a court of equity, afford for such an irregularity in the proceedings of another court, clothed by statute with exclusive jurisdiction of the matter, in respect of which the irregularity is said to have occurred?
It is further said in the bill, that the balance of the sum of $5,000, the pretended price for which said real estate was conveyed to said Gordon, being $957.84, was never paid to the administrator; and further, that the administrator, without consideration, conveyed to said Gordon personal property to the amount of $2,859.31. Is this the place or the way to settle the account of this administrator with the estate? — and even if it were, what has all this to do with the question whether this sale can be set aside? If it had been really supposed that the administrator was to be called to an account here for fraud and misconduct so flagitious, — a breach of trust so gross and glaring, — why was he not made a party to the bill? Clearly, all this is quite immaterial, and aside from the purpose of the bill.
I have said nothing as to the necessity of showing a participation by the defendants in the fraud of the administrator and William Gordon which is not alleged in the bill, because I found the case decided in my own mind before reaching that point. It certainly must be unnecessary to say that. Even if fraud of a character to avoid the sale, as between the original parties, were shown, a subsequent purchaser could not be deprived of the land without showing a participation by him in the fraud. Hall v. Woodman,49 N.H. 295; — and see Patch v. Ward, Law Rep., 3 Ch. App. 203.
The bill does not show whether the administrator has yet settled his final account in the probate court. Considering the nature of the misconduct charged upon him in the bill, it is hardly conceivable that he has done so and escaped detection, provided the charges are true. If he has not, it would seem that these plaintiffs must have an ample remedy at law against him and the sureties on his bond, notwithstanding their land has been conveyed by a title which the court has not the power to annul.