Heflin v. Ashford , 85 Ala. 125 ( 1887 )

SOMERVILLE, J.

It is settled in this State, that a bill filed to impeach a decree for fraud must be filed within three years after the rendition of the decree sought to be impeached, or else it will be barred; with the exception of bills filed -by infants and persons of unsound mind, and married women, where the matter of the decree relates to their separate estates. — Gordon v. Ross, 63 Ala. 363; Code, 1886, § 3497. But a necessary modification of this principle is, that the aggrieved party, under the statute, is entitled to twelve months within which to file such bill, after the discovery of the facts constituting the fraud. — Code, 1886, § 2630; Porter v. Smith, 65 Ala. 169; Holt v. Wilson, 75 Ala. 58; Gordon v. Ross, supra.

The alleged fraud in this case consists in the rendition, on March 12th, 1877, of the decree sought to be impeached, in violation of the terms of a written agreement of counsel in-the cause. This fact was known to the complainant at least as early as May 14th, 1877; for on that day the record shows that he applied to the chancellor for a rehearing in the cause, asking that the decree be set aside, on substantially the same ground as that urged in the original bill in this suit, which was not filed until October 29th, 1880, or more than three years' after the discovery by complainant of the fact that such decree had been rendered.

Whatever merit there may otherwise be in complainant’s suit, this objection is entirely fatal to it, and bars any right to relief by him.

The decree of the chancellor must be affirmed.