PARKER, District Judge,
(after staling the facts as above.) This is a suit in equity7 for partition. The plaintiff claims that she, as the wife of William B. Daniels, deceased, under the laws of Colorado, is entitled by inheritance to one half the property of which he died seised; that there was but one child to inherit from the said Daniels, — his sou, William C. Daniels. There can be no doubt that courts of equity have concur[352]*352rent jurisdiction with courts of law of suits for partition. Pom. Eq. Jur. §§ 140,174,1387; Story, Eq.. Jur. §§ 646, 658. In the last of these sections the law is thus stated by that learned jurist:
“The courts [meaning courts of equity] have assumed a general concurrent jurisdiction with courts of law in all cases of partition. So that it is not now deemed necessary to state in the bill any particular ground of equitable interference.”
Mr. Justice Brewer, in Smelting Co. v. Rucker, 28 Fed. Rep. 220, fully recognized and declared the rule upon this subject. There can be no doubt about this court, as a circuit court of the United States, sitting as a court of equity, having jurisdiction of this suit in partition.
But it is claimed that plaintiff is not entitled to any interest-in the estate of William B. Daniels, because at the time of his death she was not his wife, because upon or about March 16,1886, she was divorced a vin-culo matrimonii from the said Daniels by a decree of the county court of Arapahoe county, Colo. The fact that she was so divorced is fully set out in the bill, but it is further averred that said divorce was obtained by deceit, misrepresentations, duress, chicanery, and fraud, and that, therefore, this court' should disregard the same. If the facts are proven as alleged, certainly a case of fraud will be shown. But can this court disregard the decree of divorce of the county court of Arapahoe county, if the same is shown to have been obtained by fraud? If it cannot, such decree is a barrier against any decree of partition by this court, because plaintiff has no interest in the property to be partitioned. It is well established that a court will not set aside a judgment, or disregard the same, because it was founded on a fraudulent instrument or perjured testimony, or on any matter intrinsic to the matter tried by the first court, or on a fraud in the matter on. which the decree was rendered. But it is equally well settled that a court of equity will, on account of fraud growing out of matter extrinsic or collateral to the matter tried by the first court, set aside or annul a judgment or decree between the same parties. Air. Justice Miller, in U. S. v. Throckmorton, 98 U. S. 61, said:
“But there is an admitted exception to this general rule in cases where, by reason of something done by the successful party to a suit, there was in fact no illusory trial or deception of the issue in the case. When the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception, or deception practiced on him by his opponent, as by keeping him away from court by a false promise of acompromise; orwhere thedefendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party, and connives at his defeat; or where the attorney, regularly employed, corruptly sells out his client’s interest to the other side, — these and similar cases which show that there lias never been a real contest in the trial or hearing of the case are the reasons for which a nevr suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and a fair hearing.”
• The court, speaking in reference to authorities referred to in the above-named opinion, says:
[353]*353“In all these eases, and many others which have been examined, relief has been granted on the ground that, by some fraud practiced directly upon the party seeking relief against the judgment or decree, that party has been prevented from presenting all of his caseto the court.”
A fraud practiced in the procurement of a judgment will furnish grounds for attacking it in a collateral proceeding. Mayor, etc., v. Brady, 115 N. Y. 599, 22 N. E. Rep. 237; Murphy v. De France, 101 Mo. 151, 13 S. W. Rep. 756; Haas v. Billings, 42 Minn. 63, 43 N. W. Rep. 797; Stunz v. Stunz, 131 Ill. 309, 23 N. E. Rep. 410. The same rule applies, in regard to attacking it for fraud, to a decree of divorce, as the one applicable to any other judgment or decree. 2 Freem. Judgm. p. 860, § 489, says:
“Decrees of divorce may, when obtained by fraud, be vacated in the same manner and under the same circumstances which would warrant the vacation of any other decree, although the party who obtained the fraudulent judgment has contracted another marriage. ”
Mr. Black, (1 Judgm. § 320,) says:
“Aside from legislation, the courts will generally hear motions to vacate divorce judgments on the same grounds and conditions as any other judgments, except, perhaps, that they proceed with greater caution, and with more anxious care of the intervening rights of strangers.”
The above rule is sustained by Adams v. Adams, 51 N. H. 388; Edson v. Edson, 108 Mass. 590; 2 Kent, Comm. 655; Story, Confl. Laws, 597. In Fa-m.or,s Case, 3 Coke, 77, 78, it is declared that—
“The law so abhors fraud and covin that all acts, as well judicial as others, and which of themselves are just, yet being mixed with fraud and deceit, are in judgment of law wrongful and unlawful.”
Without multiplying authorities, which may be done, I take it that the truc rule is that a decree of divorce stands on the same footing as every other judgment or decree, and, if obtained by fraud growing out of matter extrinsic or collateral to the matter tried by the court rendering,the decree, it will be sot aside or disregarded.
The next question which presents itself is, does this court have jurisdiction in this case? We have seen that there is no doubt about its having jurisdiction to make partition. If so, can it, in the exercise of this jurisdiction, so far listen to an attack, on the decree of the county court of Arapahoe county as to disregard it as fraudulent, if such fraud is proven? The law seems to be well settled by numerous decisions of the supreme court of the United States that it can. The last utterance by the supreme court on the subject is found in Marshall v. Holmes, 141 U. S. 589, 12 Sup. Ct. Rep. 62. The effect of the decision in the above ease is that the federal court cannot require the state court to set aside or vacate the judgment, hut it may, as between the parties before it, if the facts justify such relief, adjudge that the party practicing the fraud shall not" enjoy the inequitable advantage obtained by bis fraudulent decree'. The principle announced is:
“A circuit court of the United States, in the exercise of its equity powers, and where diverse citizenship gives jurisdiction over the parties, may deprive [354]
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PARKER, District Judge,
(after staling the facts as above.) This is a suit in equity7 for partition. The plaintiff claims that she, as the wife of William B. Daniels, deceased, under the laws of Colorado, is entitled by inheritance to one half the property of which he died seised; that there was but one child to inherit from the said Daniels, — his sou, William C. Daniels. There can be no doubt that courts of equity have concur[352]*352rent jurisdiction with courts of law of suits for partition. Pom. Eq. Jur. §§ 140,174,1387; Story, Eq.. Jur. §§ 646, 658. In the last of these sections the law is thus stated by that learned jurist:
“The courts [meaning courts of equity] have assumed a general concurrent jurisdiction with courts of law in all cases of partition. So that it is not now deemed necessary to state in the bill any particular ground of equitable interference.”
Mr. Justice Brewer, in Smelting Co. v. Rucker, 28 Fed. Rep. 220, fully recognized and declared the rule upon this subject. There can be no doubt about this court, as a circuit court of the United States, sitting as a court of equity, having jurisdiction of this suit in partition.
But it is claimed that plaintiff is not entitled to any interest-in the estate of William B. Daniels, because at the time of his death she was not his wife, because upon or about March 16,1886, she was divorced a vin-culo matrimonii from the said Daniels by a decree of the county court of Arapahoe county, Colo. The fact that she was so divorced is fully set out in the bill, but it is further averred that said divorce was obtained by deceit, misrepresentations, duress, chicanery, and fraud, and that, therefore, this court' should disregard the same. If the facts are proven as alleged, certainly a case of fraud will be shown. But can this court disregard the decree of divorce of the county court of Arapahoe county, if the same is shown to have been obtained by fraud? If it cannot, such decree is a barrier against any decree of partition by this court, because plaintiff has no interest in the property to be partitioned. It is well established that a court will not set aside a judgment, or disregard the same, because it was founded on a fraudulent instrument or perjured testimony, or on any matter intrinsic to the matter tried by the first court, or on a fraud in the matter on. which the decree was rendered. But it is equally well settled that a court of equity will, on account of fraud growing out of matter extrinsic or collateral to the matter tried by the first court, set aside or annul a judgment or decree between the same parties. Air. Justice Miller, in U. S. v. Throckmorton, 98 U. S. 61, said:
“But there is an admitted exception to this general rule in cases where, by reason of something done by the successful party to a suit, there was in fact no illusory trial or deception of the issue in the case. When the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception, or deception practiced on him by his opponent, as by keeping him away from court by a false promise of acompromise; orwhere thedefendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party, and connives at his defeat; or where the attorney, regularly employed, corruptly sells out his client’s interest to the other side, — these and similar cases which show that there lias never been a real contest in the trial or hearing of the case are the reasons for which a nevr suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and a fair hearing.”
• The court, speaking in reference to authorities referred to in the above-named opinion, says:
[353]*353“In all these eases, and many others which have been examined, relief has been granted on the ground that, by some fraud practiced directly upon the party seeking relief against the judgment or decree, that party has been prevented from presenting all of his caseto the court.”
A fraud practiced in the procurement of a judgment will furnish grounds for attacking it in a collateral proceeding. Mayor, etc., v. Brady, 115 N. Y. 599, 22 N. E. Rep. 237; Murphy v. De France, 101 Mo. 151, 13 S. W. Rep. 756; Haas v. Billings, 42 Minn. 63, 43 N. W. Rep. 797; Stunz v. Stunz, 131 Ill. 309, 23 N. E. Rep. 410. The same rule applies, in regard to attacking it for fraud, to a decree of divorce, as the one applicable to any other judgment or decree. 2 Freem. Judgm. p. 860, § 489, says:
“Decrees of divorce may, when obtained by fraud, be vacated in the same manner and under the same circumstances which would warrant the vacation of any other decree, although the party who obtained the fraudulent judgment has contracted another marriage. ”
Mr. Black, (1 Judgm. § 320,) says:
“Aside from legislation, the courts will generally hear motions to vacate divorce judgments on the same grounds and conditions as any other judgments, except, perhaps, that they proceed with greater caution, and with more anxious care of the intervening rights of strangers.”
The above rule is sustained by Adams v. Adams, 51 N. H. 388; Edson v. Edson, 108 Mass. 590; 2 Kent, Comm. 655; Story, Confl. Laws, 597. In Fa-m.or,s Case, 3 Coke, 77, 78, it is declared that—
“The law so abhors fraud and covin that all acts, as well judicial as others, and which of themselves are just, yet being mixed with fraud and deceit, are in judgment of law wrongful and unlawful.”
Without multiplying authorities, which may be done, I take it that the truc rule is that a decree of divorce stands on the same footing as every other judgment or decree, and, if obtained by fraud growing out of matter extrinsic or collateral to the matter tried by the court rendering,the decree, it will be sot aside or disregarded.
The next question which presents itself is, does this court have jurisdiction in this case? We have seen that there is no doubt about its having jurisdiction to make partition. If so, can it, in the exercise of this jurisdiction, so far listen to an attack, on the decree of the county court of Arapahoe county as to disregard it as fraudulent, if such fraud is proven? The law seems to be well settled by numerous decisions of the supreme court of the United States that it can. The last utterance by the supreme court on the subject is found in Marshall v. Holmes, 141 U. S. 589, 12 Sup. Ct. Rep. 62. The effect of the decision in the above ease is that the federal court cannot require the state court to set aside or vacate the judgment, hut it may, as between the parties before it, if the facts justify such relief, adjudge that the party practicing the fraud shall not" enjoy the inequitable advantage obtained by bis fraudulent decree'. The principle announced is:
“A circuit court of the United States, in the exercise of its equity powers, and where diverse citizenship gives jurisdiction over the parties, may deprive [354]*354a party of the benefit of a judgment fraudulently obtained by him in a state court, il the circumstances are such as would authorize relief by a federal court if the judgment had.been rendered by it, and not by a state court, as a decree to that effect does not operate on the state court, but on the parties.”
The above doctrine is fully sustained by Arrowsmith v. Gleason, 129 U. S. 86, 9 Sup. Ct. Rep. 287. The whole subject was fully considered in Johnson v. Waters, 111 U. S. 640, 667, 4 Sup. Ct. Rep. 619. The court in that case said:
“The most solemn, transactions and judgments may, at the instance of the' parties, be set aside or rendered inoperative for fraud. The fact of being a party does not estop a person from obtaining, in a court of equity, relief against fraud. It is generally parties that are the victims of fraud. The court of chancery is always open to hear complaints against it, whether committed in pais, or in or by means of judicial proceedings. In such cases the court does not act as a court of review, nor does it inquire into any inequalities or errors of proceeding in another court; but it will scrutinize the conduct of the parties, and, if it finds that they have been guilty of fraud in obtaining a judgment or decree, it will deprive them of the benefit of it, and of any inequitable advantage which they have derived under it.”
The same rule is declared in Gaines v. Fuentes, 92 U. S. 10, and in Barrow v. Hunton, 99 U. S. 80.
• There is no doubt in my mind that the tribunal and the form of action have been properly selected. There is nodoubt but the bill of complaint in this case sets up sufficient facts to show a case of procuring a decree by fraud; and therefore it sets out sufficient facts to constitute a cause of action, and to authorize the relief prayed.
Some fault may be attributed to the plaintiff, growing out of her conduct in the divorce proceedings in the county court of Arapahoe county. But certainly, from the facts alleged in the bill, the parties were not in pari delicto; that is, they were not equally blameworthy. In such case a court of equity will, in furtherance of justice and a sound public policy, aid the-one who is comparatively the more innocent. 1 Pom. Eq. Jur. § 403; 2 Pom. Eq. Juri § 941. It cannot be asserted that plaintiff is estopped by her conduct from proceeding in this form of action, although the effect may be to disregard or treat as a nullity the decree of divorce granted by the county court of Arapahoe county; for she was not in a condition to assert her rights in that court, and she must have been in that condition before she can be estopped from attacking the decree1 rendered against her.
The statute of limitations was alluded to in the argument of the demurrers as being a bar to the plaintiff’s recovery, although this is not set out as a cause of demurrer. This is a suit to recover property by plaintiff that is held in trust for her by defendants. If she has any property rights in this large estate, then the holding of the property which belongs to her creates an express trust in her favor. To such a trust relation the statute of limitation has no application. Lewis v. Hawkins, 23 Wall. 119. The principal aim of this suit is to obtain partition of property, and an incident thereto is to disregard or treat as a nullity the decree of divorce. Besides, by the allegations of the bill the plain[355]*355tiff, as soon as she discovered the fraud which had been practiced upon her, brought a suit in the county court of Arapahoe county to set aside and annul the decree of divorce on the ground of fraud. This suit was pending on the 24th of December, 1890, when William B. Daniels died. Then, on April 2,1891, she brought this suit in this court. The point is presented in the brief of counsel for plaintiff in support of the allegation in the bill, that the county court of Arapahoe county, under the constitution 'and laws of Colorado, did not have, and could not have, jurisdiction of any suit for divorce. It is not necessary, in passing on the several demurrers to the bill, to pass on the question involved in this proposition. It is a question of such delicacy, and one which may be so far-reaching in its effects, that I prefer that it should be settled, if to be settled at all, by my Brother Hali.et, who is more familiar with the constitution and laws of Colorado than I am, and, because of his large experience on the supreme bench of the state and on the federal bench, is much better qualified than I am to pass on this question.
The demurrers of William C. Daniels, Sarah M. Kenyon, and William D. Kenyon, Lewis C. Ellsworth, Laura Parnell, Henry Martyn Hart, and Thomas B. Croke, Mitchell Benedict, and William G. Fisher, are overruled.