Urquhart v. McDonald

Supreme Court of Alabama

Urquhart v. McDonald

42 So. 2d 9, 252 Ala. 505, 1949 Ala. LEXIS 470

CourtSupreme Court of Alabama

DecidedJune 30, 1949

Docket1 Div. 339.

StatusPublished

Cited by11 cases

This text of 42 So. 2d 9 (Urquhart v. McDonald) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Urquhart v. McDonald, 42 So. 2d 9, 252 Ala. 505, 1949 Ala. LEXIS 470 (Ala. 1949).

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This is an appeal from a decree overruling a demurrer to a bill in equity. The bill is primarily one in the nature of a bill of review to cancel a decree of the probate court of Monroe County setting aside homestead exemption to the widow because of fraud in the procurement or concoction of said decree. The bill also seeks the cancellation of certain conveyances, but the relief in this connection is dependent upon the cancellation of the decree of the probate court.

The demurrer was to the bill as a whole, but if the bill did not state a case for the cancellation of the decree as against the demurrer interposed, then the demurrer should have been sustained. The decree sought to be vacated was rendered April 25, 1930. The bill was not filed until 1947. The statute of limitations for a bill of review will, by analogy, be applied to a bill in the nature of a bill of review. It was declared in Quick v. McDonald, 214 Ala. 587, 108 So. 529, 532, that, by analogy *Page 506 of the statute of limitations to bills of review, no special features appearing, the limitation is fixed at three years, subject to the statute giving one year after discovery of the fraud. See also Cassady v. Davis, 245 Ala. 93, 15 So.2d 909.

It appearing on the face of the bill that it was filed more than three years after the date of the decree sought to be vacated, it was incumbent upon the complainant to allege facts to excuse the long delay in filing the present bill. We are of the opinion that complainant, appellee, has failed to do this in that the bill does not show how complainant obtained the information on which this suit was filed. Such a bill as this must allege with precision and accuracy not only when but how complainant came into a knowledge of the various facts alleged as constituting the right sought to be enforced. Duncan v. Williams, 89 Ala. 341, 350, 7 So. 416; Alabama Coal Coke Co. v. Gulf Coal Coke Co., 171 Ala. 544, 54 So. 685; Peters Mineral Land Co. v. Hooper et al., 208 Ala. 324, 94 So. 606.

Because of the failure of the bill to contain such averments, we are of the opinion that the ground of the demurrer taking the point that the bill was not filed within three years from the date of the decree sought to be cancelled should have been sustained. The decree of the trial court is reversed and one here rendered sustaining the demurrer. The complainant is given thirty days from the date on which the certificate of the clerk of this court reaches the register of the circuit court of Monroe County, in equity, to amend.

Reversed, rendered, and remanded.

FOSTER, LAWSON, SIMPSON and STAKELY, JJ., concur.

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This is an appeal from a decree overruling a demurrer to a bill in equity. The bill is primarily one in the nature of a bill of review to cancel a decree of the probate court of Monroe County setting aside homestead exemption to the widow because of fraud in the procurement or concoction of said decree. The bill also seeks the cancellation of certain conveyances, but the relief in this connection is dependent upon the cancellation of the decree of the probate court.

The demurrer was to the bill as a whole, but if the bill did not state a case for the cancellation of the decree as against the demurrer interposed, then the demurrer should have been sustained. The decree sought to be vacated was rendered April 25, 1930. The bill was not filed until 1947. The statute of limitations for a bill of review will, by analogy, be applied to a bill in the nature of a bill of review. It was declared in Quick v. McDonald, 214 Ala. 587, 108 So. 529, 532, that, by analogy *Page 506 of the statute of limitations to bills of review, no special features appearing, the limitation is fixed at three years, subject to the statute giving one year after discovery of the fraud. See also Cassady v. Davis, 245 Ala. 93, 15 So.2d 909.

It appearing on the face of the bill that it was filed more than three years after the date of the decree sought to be vacated, it was incumbent upon the complainant to allege facts to excuse the long delay in filing the present bill. We are of the opinion that complainant, appellee, has failed to do this in that the bill does not show how complainant obtained the information on which this suit was filed. Such a bill as this must allege with precision and accuracy not only when but how complainant came into a knowledge of the various facts alleged as constituting the right sought to be enforced. Duncan v. Williams, 89 Ala. 341, 350, 7 So. 416; Alabama Coal Coke Co. v. Gulf Coal Coke Co., 171 Ala. 544, 54 So. 685; Peters Mineral Land Co. v. Hooper et al., 208 Ala. 324, 94 So. 606.

Because of the failure of the bill to contain such averments, we are of the opinion that the ground of the demurrer taking the point that the bill was not filed within three years from the date of the decree sought to be cancelled should have been sustained. The decree of the trial court is reversed and one here rendered sustaining the demurrer. The complainant is given thirty days from the date on which the certificate of the clerk of this court reaches the register of the circuit court of Monroe County, in equity, to amend.

Reversed, rendered, and remanded.

FOSTER, LAWSON, SIMPSON and STAKELY, JJ., concur.

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42 So. 2d 9, 252 Ala. 505, 1949 Ala. LEXIS 470, Counsel Stack Legal Research, https://law.counselstack.com/opinion/urquhart-v-mcdonald-ala-1949.

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