Kirby v. Kirby's Adm'r , 70 Ala. 370 ( 1881 )

STONE, J.

The excuse offered by complainant, for not defending this suit in the law court, is wholly insufficient. True, according to the averments of the bill, there had been no official adjudication, declaring where the title rested, when the judgment in ejectment was rendered. That adjudication did not create the title. It was as much in the Government of the United States before, as it was after the commissioner of the land-office so pronounced. And, in fact, Mrs. Kirby in her bill charges that, as early as 1870, she learned that the title was not in her deceased husband. That fact, and the true condition of the title, could have been proved; and still Mrs. Kirby made no attempt to defend at law. No matter how unrighteous the judgment may have been, the bill fails to make a case for relief in equity. The defense was legal, and the complainant does not show she was prevented from making it by fraud, accident, or the act of the adversary.—1 Brick. Dig. 666. In what we here say, we must not be understood as affirming that Mrs. Kirby was in condition to make defense, even at law. This question is possibly distinguishable from those declared in Pettit v. Pettit, 32 Ala. 288, and in Burns v. Hamilton, 33 Ala. 210.

Affirmed.