Smith v. . Nelson , 1875 N.Y. LEXIS 503 ( 1875 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The complaint does not state facts sufficient to authorize the court to set aside the decree of foreclosure, and the sale thereunder, made in March, 1844.

The power of the Supreme Court to annul a judgment or decree for fraud in procuring it, is undoubted, although the jurisdiction is carefully limited and guarded, and will only be exercised in clear cases. The jurisdiction in one court to vacate, in an independent proceeding, the judgment of another having power to render it, is in its nature so extraordinary as to demand a close adherence to principles and precedents in exercising it. Courts do not exercise it when there has been negligence on the part of the party seeking the relief. That a judgment is final and conclusive of the right or thing which is adjudicated by it, is the rule, and judgments and decrees of a competent court will not be annulled for a suspicion of fraud, or because the party complaining may in fact have been unjustly cast in judgment. It is not sufficient to authorize the interference of the court, that it is shown that the claim upon which the judgment was obtained was unfounded, or that there was a good defence to the action, or that the court erroneously decided the law, or that the defendant omitted to avail himself of his defence, if before the judgment was rendered, the facts were known or might by reasonable diligence have been ascertained by him. (Stilwell v. Carpenter, 59 N.Y., 414; Marine Ins.Co. v. Hodgson, 7 Cranch, 332; Foster v. Wood, 6 J. Ch., 89; Simpson v. Lord Howden, 3 Myl. Cr., 108; Powers v.Battle, 3 Green's Ch., 465; Dobson v. Pearce,12 N.Y., 157.)

The complaint does not bring this case within the cases which authorize the remedy invoked. The defence now claimed to exist to the mortgage was fully known to the mortgagor when the foreclosure suit was brought, and indeed it was set up in the answer to the bill.

The foreclosure suit so far as it appears proceeded regularly to a decree. There is no averment that the proper steps were not taken to acquire jurisdiction. The plaintiffs it is true state that they deny that various things were done, but this is not equivalent to an averment that they were not done, and especially in a case where the plaintiffs were not parties to the decree sought to be impugned, and are not presumed to have had personal knowledge of the proceedings. There is a general averment of misconduct on the part of the solicitor of the mortgagor, but there is no averment that he misled or deceived the mortgagor as to his defence, or as to the proceedings in the suit. General averments in such a case are insufficient.

The defendants claim under the purchaser on the mortgage sale, made more than thirty years ago, of land which since that time has been occupied under the title derived on the foreclosure, and within settled principles, no case is made in the complaint for disturbing it.

The judgment should be affirmed.

All concur.

Judgment affirmed.