(82 South. 467)

#### BOLING v. T. L. FARROW MERCANTILE CO.

(8 Div. 177.)

Supreme Court of Alabama.

June 5, 1919.

1. Contracts <&wkey;28(l) — Burden of Proof.

In an equitable action, the burden of proof is upon the plaintiff to establish to the reasonable satisfaction of the court that an agreement upon which he relies for recovery was made by the defendant.

2. Equity <&wkey;446 — Office of Bill of Review.

A bill of review, or a bill in that nature, to vacate a decree, will not lie to review and revise irregularities in a decree of mortgage foreclosure, such as the amount of the mortgage debt or the efficiency of the medium of publication through which notice' of the sale was given; appeal, by the party prejudiced being an appropriate remedy.

Appeal from Circuit Court, Marshall County ; W. W. Haralson, Judge.

Bill by Thomas M. Boling against the T. L. Farrow Mercantile Company. Decree for defendant, and plaintiff appeals.

Affirmed.

Rayburn & Wright, of Guntersville, for appellant.

John A. Lusk & Sons, of Guntersville, for appellee.

McCLELLAN, J.

Bill in the nature of a bill of review. The decree sought to be vacated was rendered, after jurisdiction acquired, in the cause styled T. L. Farrow Mercantile Co. v. T. M. Boling; and its effect was to foreclose two mortgages executed by Boling to the company. The present bill would avoid this decree upon the ground that the complainant company agreed with the respondent (the mortgagor) that if respondent’s father would release two mortgages, executed by the respondent, he then held, the complainant company would dismiss its then' pending bill praying a foreclosure of the mortgages to that company; whereupon, it is averred, the respondent secured and delivered to the company’s representative a formally executed instrument from his father extinguishing the father’s rights, etc.j in the premises, notwithstanding which agreement and its effect to lull respondent into inaction, the complainant took a decree pro confesso against the respondent and invited and had enforced a decree foreclosing the mortgages.

[1] Pretermitting other considerations that might lead to the same result, it will suffice to say that a careful review of the whole evidence confirms the correctness of the trial court’s conclusion, namely, that the appellant failed to carry the burden of proof resting upon him to establish to the, reasonable satisfaction of the court that the agreement upon which he relied was in fact made ' either by the mercantile company, or its ' agent, officer, or solicitor.

[2] The other matters asserted in the present bill — with a view to vacating the decree regularly entered in. a cause of which the court had jurisdiction — went,, at most, to reflect upon the correctness of the decree in respect of the amounts of the mortgage debts secured by the two mortgages and to question the efficiency of the medium of publication through which notice of the sale was given. A bill of review, or a bill in that nature, to vacate a decree, will not lie to review and revise irregularities of that character; appeal by the party prejudiced being an appropriate remedy. Vary v. Thompson, 168 Ala. 367, 52 South. 951; McCall v. McCurdy, 69 Ala. 65, among others.

The decree is affirmed.

Affirmed.

ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.