1. None but parties and privies can have a bill of review, and
it will not lie where the decree in question was passed by
consent.
2. A decree for carrying out a settlement and compromise of a
suit, if obtained without fraud, cannot be impeached.
3.
Buffington v. Harvey, supra, p.
95
U. S. 99, cited and approved.
4. As the bill in this case, before it was by amendment
converted into a bill of review, approximated to the character of a
bill to carry the original decree more effectually into execution,
which was the appropriate remedy of the complainants, the Court,
while reversing the decree, does not direct that the bill be
absolutely dismissed, but that the complainants be allowed to amend
it, with leave to defendants to answer any new matter therein
introduced, and that the proofs taken in the cause shall stand as
proofs at any future hearing thereof, with liberty to either party
to take additional proof upon any new matter that may be put in
issue by the amended pleadings.
The facts are stated in the opinion of the Court.
MR. JUSTICE BRADLEY delivered the opinion of the Court.
In 1859, Alfred Bent and his two sisters, Estefana and Teresina,
with their husbands, filed a bill in chancery in the District Court
of the Territory of New Mexico for the County of Taos against
Charles Beaubien, Guadalupe Miranda, Lucien B. Maxwell, and Jose
Pley, claiming and alleging that Charles Bent, deceased, the father
of Alfred and his sisters, at the time of his death, was jointly
interested with said Beaubien and Miranda, to the extent of
one-third part, in a certain specified tract of land in said
territory, amounting to two millions of acres, which had been
granted to said Beaubien and Miranda by the New Mexican government
in 1841, and stood in their names, and that as to said third part
they were trustees for said Charles up to the time of his death,
and from thenceforward trustees for the said Alfred and his sisters
as heirs-at-law of said Charles. The bill further stated that
Maxwell and Pley pretended to have become interested in said land,
and
Page 95 U. S. 392
prayed as against all the defendants that the title of said
Charles Bent to the third part thereof might be established, and
for a partition. Such proceedings were had in that suit that, on
the 29th of May, 1865, a decree was made establishing Bent's title
to one undivided fourth part of the land, the right of succession
of the complainants, and adjudging that a partition be made
according to the prayer of the bill. Commissioners for making
partition were appointed by the decree and ordered to report at the
next term, the court reserving its decree as to the partition and
the costs of the cause.
After this decree was made, certain negotiations took place
between Maxwell (who had acquired the principal interest in the
property) and the complainants, looking to a settlement of the
controversy and a purchase by Maxwell of the complainants'
interest. Whether these negotiations were concluded in Alfred
Bent's lifetime or not until after his death subsequently became a
matter of controversy between the parties. He was accidentally
killed on the 15th of December, 1865, leaving a widow, Guadalupe
Bent (who afterwards married George W. Thompson) and three infant
children, Charles, Julian, and Alberto, his heirs-at-law.
The commissioners for making partition never reported, and the
next proceeding in the cause, so far as appears by the record, was
an order made in April, 1866, making the infant children and heirs
of Alfred parties complainant, and continuing the cause. A few days
afterwards in the same term, the following order was entered in the
cause:
"By agreement of the parties, the continuance of this cause,
made on a former day of this term of this court, is set aside and,
on motion of solicitors for the complainants, Guadalupe Bent is
hereby appointed guardian
ad litem and commissioner in
chancery for the minors of Alfred Bent in this cause, with full
power to execute deeds or carry into execution all sales or
transfers made of her [their?] interests in and to the real estate
therein described to Lucien B. Maxwell, one of the defendants in
said cause, and that this cause stand continued until the next term
of this court."
On the third day of May, 1866, Guadalupe Bent, as guardian
ad litem of Charles, Julian, and Alberto, and commissioner
under the foregoing order, executed a deed of conveyance in
Page 95 U. S. 393
fee to the said Maxwell for the one undivided twelfth part of
the property in question, belonging to the said Charles, Julian,
and Alberto, as heirs of their father. The sisters of Alfred, with
their husbands, executed deeds for their interest in the lands
about the same time.
In September Term, 1866, another decree (probably intended as a
substitute for the order made in April) was made in the said cause
in the words following, to-wit:
"Whereas an interlocutory decree was rendered at a former term
of this court in the above cause decreeing one-fourth of the land
mentioned in the petition herein to the complainants in this cause
and appointing commissioners to divide and set apart the portion so
decreed, and whereas said interlocutory decree was never carried
into effect, and whereas, since the time of the rendition of said
decree, a mutual agreement has been made between the parties to
this cause, settling and determining all the equities in the
same,"
"It is therefore hereby ordered, adjudged, and decreed, by the
mutual consent and agreement of the said complainants as well as of
the said defendants in this cause that the interlocutory decree
above mentioned, together with all orders made under and by virtue
of the same, be set aside, and by the mutual consent and agreement
of the said parties it is hereby further ordered, adjudged, and
decreed that the said Lucien B. Maxwell, one of the defendants in
this cause, pay to the said complainants the sum of $18,000, to be
divided among them
per stirpes -- that is, to the said
Aloys Scheurick and Teresina Bent, his wife, one-third part, and to
Alexander Hicklin and Estefana Bent, his wife, another third part,
and to Charles Bent, Julian Bent, and Alberto Silas Bent, the
children and heirs of Alfred Bent, deceased, the remaining third
part, to be equally divided among the said last named, and to be
paid into the hands of Guadalupe Bent, widow of the [said] Alfred
Bent, deceased, and guardian
ad litem for said children,
for the purposes of the said division."
"And upon the further consent and agreement of the said parties
it is hereby further ordered, adjudged, and decreed that the said
Alexander Hicklin and Estefana Bent, his wife, the said Aloys
Scheurick and Teresina Bent, his wife, and the said Guadalupe Bent,
guardian
ad litem for Charles Bent, Julian Bent, and
Alberto Silas Bent, children and minor heirs of the said Alfred
Bent, deceased, within ten days from the date of this decree, make,
execute, and deliver to the said Lucien B. Maxwell good and
sufficient
Page 95 U. S. 394
deeds of conveyance of all their right, title, interest, estate,
claim, and demand of, in, and to the lands in controversy in this
cause, the said Guadalupe Bent, guardian
ad litem as
aforesaid, in the name of Charles Bent, Julian Bent, and Alberto
Silas Bent, minor heirs as aforesaid, and the said Alexander
Hicklin and Estefana Bent, his wife, and the said Aloys Scheurick
and Teresina Bent, his wife, in their own names. And by further
consent and agreement between the said parties, it is hereby
further ordered, adjudged, and decreed that the costs of this suit
shall be paid, each of the said parties to pay the separate costs
in the same made by themselves."
This last decree seems to have been the termination of
proceedings in the cause. No further conveyances were executed, and
nothing else was done to carry the decree into effect.
On the first day of August, 1870, nearly four years after the
entry of the last decree, the proceedings were instituted which are
now brought here on this appeal. On that day, the present
appellees, The Maxwell Land Grant and Railway Company (to whom by
mesne conveyances a large portion of the land had, in the mean
time, been assigned), together with Lucien B. Maxwell and his wife,
filed in the same court a bill against Guadalupe Thompson,
administratrix of Alfred Bent's estate, her husband, George
Thompson, and the said infant children and heirs of Alfred Bent, in
which bill, after setting forth the grant to Beaubien and Miranda
and the derivative title of the complainants in the land and the
substance of the proceedings which had taken place in the previous
suit, the complainants proceeded to state at large the terms of the
compromise agreement which had been made and which had resulted in
the final decree made in that suit. They alleged that his
compromise was agreed upon in the lifetime of Alfred Bent, though
not carried out until after his death, and that its terms were that
Lucien B. Maxwell should pay to the complainants in the original
suit $18,000, or $6,000 apiece, and that in consideration thereof,
Alfred Bent and his two sisters should release and discharge the
premises and every part thereof, and the said Maxwell and wife,
from the said trust or equitable claim, and, in confirmation
thereof, should convey to Maxwell all their right, title, and
interest in and to the premises. The bill further alleged that the
said $18,000 was duly paid (the sum
Page 95 U. S. 395
of $6,000 due to Alfred being paid to his wife as administratrix
of her husband's estate, and not as guardian of his children), and
that the sisters of Alfred, with their husbands, executed
conveyances in accordance with the compromise agreement, in May,
1866, and that Guadalupe Bent, by a deed of conveyance executed by
her as guardian aforesaid, undertook to convey the interest of the
children as before stated, and that by said compromise and
conveyances the said trust became extinguished, and the title of
Maxwell became freed and discharged therefrom. The bill then set
forth certain errors which it was alleged had been committed in the
original proceedings and which cast a cloud upon the title of the
complainants -- namely,
first, that it did not appear
therein (as the fact was) that an agreement for the sale of the
equitable interest of Alfred Bent was made by him in his lifetime
with said Maxwell;
secondly, that the interlocutory decree
(of May, 1865) should not have been set aside, but should have been
modified;
thirdly, that the money paid by Maxwell for the
interest of Alfred Bent should have been directed to be paid to his
personal representative, and not to the guardian
ad litem
of his children; and
fourthly that, upon such payment's
being made, the court should have decreed and adjudged the said
trust and equitable claim or interest to be extinguished, and that
the premises should be held free and discharged of said trust. The
bill then prayed for a decree that the trust be terminated and
extinguished, that the defendants have no interest or title in the
premises, equitable or otherwise, that the plaintiffs hold them
free and discharged of all trusts in favor of the defendants and
all claiming under them, and for other and further relief. This
bill being demurred to, the complainants were allowed to amend it
by adding a prayer in the following words:
"That for the aforesaid errors of law, apparent on the face of
the said decree of 10th September, 1866, the same may be reviewed
and reversed in the points herein complained of."
It is manifest that the object of this bill, especially after
being amended, was to set aside the decree made in the original
cause and to substitute therefor a new decree supposed to be more
advantageous to the complainants upon the same matters
Page 95 U. S. 396
which were before the court and under its consideration in the
said cause. Under the guise of a bill for quieting title, it was in
reality a bill of review.
The defendants, after the appointment of a guardian
ad
litem for the infants, answered the bill. Guadalupe Thompson
and her husband denied that an agreement for a compromise was ever
made by Alfred Bent in his lifetime, but they substantially
admitted the other facts stated in the bill, alleging, however,
that Guadalupe, although she executed the deed of May, 1866, in
good faith, was wholly ignorant of the rights of her children. The
guardian
ad litem for the infants simply referred their
rights to the court.
Upon these pleadings, the parties took proofs, and without going
into the details thereof, it is sufficient to say that in our
judgment, the complainants entirely failed to substantiate the main
fact relied upon by them -- namely that the agreement for a
compromise was concluded with Alfred Bent in his lifetime. The
effect of the evidence appears to be that although negotiations
were commenced before his death, no agreement was concluded until
after that event, when it was concluded by his brother-in-law,
Scheurick, and was acquiesced in by the other parties, including
the widow of Alfred, acting in behalf of her children.
Upon the case as thus made, the court, in September Term, 1873,
made a decree to the following effect, namely
First, that the decree of Sept. 10, 1866, was
erroneous, and should be reversed insofar as it set aside the
provisions of the interlocutory decree of May 29, 1865, determining
Charles Bent's interest in the land, and the right of his children
to succeed thereto and directing Guadalupe Bent, the widow of
Alfred, as guardian
ad litem for his minor children, to
make a deed of conveyance of all their right, title, and interest
in the said land.
Secondly, the court found and declared that after the
death of Alfred Bent and pending the original suit, an agreement by
way of compromise was made by the adult parties thereto for
settlement of the same, and that the terms thereof were considered
advantageous to the infants and were accepted by the court on their
behalf, as evinced by the decree attempting
Page 95 U. S. 397
to carry it out; also that Maxwell had paid the money stipulated
for in the compromise, and that the infants' share had been
received by their mother for their benefit, whereby their right to
the land became extinguished and the land became discharged from
the trust; therefore it was decreed that the Maxwell Land Grant and
Railway Company held the land free and discharged of said
trust.
The defendants appealed from this decree to the supreme court of
the territory, where it was affirmed, and from thence it was
appealed to this Court, and the question before us is as to the
validity of these proceedings in the last suit.
If the bill is to be regarded as a bill of review (and in its
ultimate aspect, at least, it seems impossible to regard it
otherwise), the proceedings are clearly objectionable, on the
following grounds:
First, the decree sought to be set aside and reversed
was a consent decree. It is a general rule that against such a
decree a bill of review will not lie.
Webb v. Webb, 3
Swanst. 658; 2 Smith Ch.Pr. 50; 2 Dan.Ch.Pr. 1629 (3d Am. ed.).
Secondly, the bill is filed by and on behalf of an
assignee of the original defendant, namely The Maxwell Land Grant
and Railway Company, whilst another rule, relating to bills of
review, is that none but parties and privies can have a bill of
review. It does not lie for assignees. Gilbert, For.Rom. 186, 2
Smith Ch.Pr. 49; 2 Dan.Ch.Pr. 1627. The fact that Lucien B. Maxwell
and his wife are joined as complainants does not obviate the
difficulty.
Thirdly, the bill seeks a reversal and modification of
the decree upon an alleged matter of fact not appearing upon the
record -- namely that the compromise agreement was made with Alfred
Bent in his lifetime, without alleging any newly discovered
evidence unknown to the parties before the decree. We decided in
the case of
Buffington v. Harvey, supra, p.
95
U. S. 99 (what was well settled before), that the only
questions open in a bill of review (except when filed on the ground
of newly discovered evidence) are such as arise upon the face of
the record, without reference to the evidence in the cause.
Whiting v. Bank of United
States, 13 Pet. 6;
Putnam v.
Day, 22 Wall. 60.
Page 95 U. S. 398
The case, it is true, is somewhat anomalous. The decree sought
to be set aside by the bill of review was not made in pursuance of
the relief sought by the bill in the original cause, and was not
based upon the pleadings and evidence therein. It was a decree for
confirming and carrying out a settlement of the controversy, which
had produced a change of interest. The original suit was instituted
by the heirs of Charles Bent to establish an equitable interest in
an undivided share of the lands and for a partition thereof. A
decree was made establishing the right, ordering the partition, and
appointing commissioners to make it. This was as far as the suit
progressed. It was then settled and the decree in question was
entered by consent, setting aside the decree for partition and
carrying out the settlement. The bill of review alleges the fact to
have been that the settlement was made by Alfred Bent in his
lifetime, and that the decree ought not to have set aside the
former decree establishing his rights, and ought not to have
directed the guardian of his infant heirs to execute a conveyance,
but ought to have declared the land discharged from the trust upon
payment by Maxwell of the agreed consideration to Alfred's personal
representatives. In other words, the bill of review insists that
the decree was misconceived and erroneous in view of the state of
facts out of which it grew and which did not appear in the record
of the cause.
We do not think that the peculiarity of the case, however, takes
it out of the ordinary rules that apply to a bill of review. A
decree for carrying out a settlement and compromise of a suit is
certainly not of itself erroneous. When made by consent, it is
presumed to be made in view of the existing facts, and that these
were in the knowledge of the parties. In the absence of fraud in
obtaining it, such a decree cannot be impeached.
We have looked into the laws of New Mexico to see whether there
is anything peculiar in the modes of proceeding there which would
sustain the bill in its present form, but we have failed to find
anything of the kind. In civil cases, those laws adopt the civil
law mode of practice, subject to the regulation of the supreme
court of the territory. Compiled Laws, pp. 195, 196. That court has
made separate regulations for
Page 95 U. S. 399
common law and equity practice. The rules in relation to the
latter are not materially different from those adopted by this
Court for equity cases in the circuit courts. The civil procedure
as pursued in the Spanish courts has no proceeding analogous to a
bill of review except the allegation of nullity, which must be made
within sixty days from the time of pronouncing the decree, after
which period, if no appeal be taken, the sentence or decree becomes
res adjudicata and cannot be revoked unless obtained by
means of false or forged proofs. 1 White's Recopilacion 305, 306,
from Aso & Manuel's Institutes, lib. 3, tit. 8, c. 1;
Escriche's Diccion, tit. Sentencia Nula.
Tested, therefore, by any law of procedure which may be invoked
in its support, the bill in this case, considered as a bill of
review, seeking to reverse, modify, and reconstruct the decree of
September, 1866, cannot be sustained. Nevertheless, the general
purpose which it evidently had in view -- the quieting of the title
to the land in question -- is one towards which a court of equity
is always liberally disposed as tending to promote the peace of
society and the security of property. And if, instead of seeking to
reverse the decree of September, 1866 (which, for like reasons of
public policy, as applicable to the security of judgments that have
passed into
rem adjudicatam, is not allowable), the bill
had sought to carry that decree more effectually into execution, it
would have been free from legal objections, and equally conducive
to the object in view. Bills for the purpose named are well known
in equity proceedings. Lord Redesdale says:
"Sometimes, from the neglect of parties or some other cause, it
becomes impossible to carry a decree into execution without the
further decree of the court. This happens generally in cases where,
parties having neglected to proceed upon the decree, their rights
under it become so embarrassed by a variety of subsequent events
that it is necessary to have the decree of the court to settle and
ascertain them. Sometimes such a bill is exhibited by a person who
was not a party to the original decree but claims a similar
interest or is unable to obtain the determination of his own right
till the decree is carried into execution. Or it may be brought by
or against a person claiming as assignee of a party to the decree.
The court
Page 95 U. S. 400
in these cases in general only enforces, and does not vary, the
decree, but on circumstances it has sometimes considered the
directions and varied them in case of mistake, and it has even on
circumstances refused to enforce the decree, though in other cases
the court, and the House of Lords upon an appeal, seem to have
considered that the law of the decree ought not to be examined on a
bill to carry it into execution."
Redesdale's Treatise 95, 96.
It seems to us that the remedy here described by such high
authority is applicable to the case at bar. The decree of
September, 1866, has never been carried into effect by any act done
since it was made. It directed that Maxwell should pay the money
stipulated for by the compromise, and that the defendant should
execute deeds of conveyance. But the parties seem to have assumed
that their previous acts performed in May, 1866, were a sufficient
compliance with the directions of the decree. Yet the decree does
not take notice of this fact.
Now in order to execute this decree or to determine whether it
has or has not been substantially executed and to determine and
declare the effect of such execution upon the rights of all
concerned, and thus remove any cloud from the title arising from
the imperfection of the proceedings, it was perfectly competent for
the parties to file a bill conceived and constructed to that end.
The bill in this case, as originally filed, before it was converted
by amendment into a bill of review, and abating the allegations of
error in the original decree, approximated to the character of such
a bill as might have been sustained. The proofs show a case which,
in our judgment, supports the conclusions of the decree, to the
effect that the terms of compromise made by the adult parties to
the suit (including the mother and guardian of the infant heirs of
Alfred Bent) were advantageous to the said infants, and were so
considered and accepted by the court in their behalf. But so far as
the present decree undertook to reverse and modify the decree of
September, 1866, we think it is clearly erroneous. Still, although
we feel obliged to reverse the present decree, we do not think that
the bill should be absolutely dismissed. And, as the whole question
between the parties has been fully litigated on the proofs, it
would be unreasonable to require that these should be taken over
again.
Page 95 U. S. 401
Our conclusion is that the present decree must be reversed with
costs, and that the cause be remanded to the court below with
directions to allow the complainants to amend their bill as they
shall be advised and with liberty to the defendants to answer any
new matter introduced therein, and that all the proofs in the cause
shall stand as proofs upon any future hearing thereof, with liberty
to either party to take additional proofs upon any new matter that
may be put in issue by the amended pleadings, and it is
So ordered.