Wilson v. Randall , 37 Ala. 74 ( 1860 )

A. J. WALKER, C. J.

The agreement by the defendants, to allow the amount of purchases made by them from* the complainant, as administrator, to be credited upon the distributive share of Mrs. Randall, was available to the complainant on the fiual settlement of Ms administration.. He might, upon his final settlement, have set off the' amount of such purchases against the claim of Mrs.-Randall as a distributee. — Carroll v. Moore, 7 Ala. 615 ; Moore-v. Lesueur, 33 Ala. 237.

[2.] Because the defendant could have made the defense before the probate court, he can not obtain relief in chancery against the decree, unless he was prevented from-making his defense in the probate court on his settlement, “by-fraud, accident, or the act of the opposite party, unmixed with fault or neglect on his part.” — Duckworth v. Duckworth's Adm'r, 35 Ala. 70; Hair v. Loive, 19 Ala. 224; Powell v. Stewart, 17 Ala. 719; Foster v. State Bank, ib. 672 ; French v. Garner, 7 Porter, 549 ; Allman v. Owen, 31 Ala. 167.

The allegations of- the bill are insufficient to meet the requisitions of that rule. The promise of the defendants that the amount of their purchases should go in payment of the distributive share, and their repeated assurance that they would do what was right, made before the final settlement, could not evidence a procurement of the decree by fraud. Misrepresentations must be in a matter of substance, and must mislead the party, in order that they may constitute a fraud. — 1 Story’s Eq. Ju., § 191. Nothing im what was said by the defendants was calculated to induce the complainant to forego the assertion of his defense in the probate court, or could have misled him. All that was said and done, contributed to arm him with convenient'evidence upon which to sustain his defense. The defendants’ promise to do -what was right, required them to allow the complaincn.’s set-off before tbe probate court; and their failure to allow it, was calculated to awaken the utmost anxiety of the complainant to establish his defense, instead of misleading him into the quiet omission to bring it up. If the complainant, upon the reliance which he mentions, forbore to assert his defense, it was an act of the utmost negligence on his part — it was his own .fault, and a court -of chancery will not relieve him.

Decree affirmed.