The comet., 1880-04-24
SUPREME COURT DECISIONS.
ReDOrted Weekly by j, w. Jenkins,
Attorney At Law.
4, T. ENocHs, ct al,

| ls isNOOttoj op
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f. l.. HARRISON. ct al.
Appeal from the Chancery Court of'Cal-
houn county, Hon. A. b. Fly, Chancellor.
Appellees, who are minors, by their guar
dian filed their bill against appellants and
another, to review a Chancery proceeding,
and yacate the decree and sale hereunder
of land, which they inherited, upon the al
legation that the defendants confederating
to defraud them, filed bill setting up Il
pretended lien upon the land, and without
proper proceedings obtained the decree
under which appellant purchased. The ex-
hibit discloses bill filed by appellant US
assignee of note made by their ancestor,
and the payee of the note, to foreclose an
alleged vendors lien, followed by appro-
pirate process and proceedings, and culmi-
mating in final decree, report of sale, and
confirmation by the Court. The appellant
answered, admitting the errors alleged in
the bill to be apparent on the face of the
exhibit, and making his answer y cross
bill, alleged that he purchased the land in
good faith, paying the purchase money
which the Commissioner applied in salts
faction of his note, the only debt by the
debtor, who was insolvent at his death,
and asked that the money SO paid on his
note be declared charge on the land. The
appellees demurred to the cross bill. The
case then coming on to be heard, decree
was made vacating the decree and sale, and
dismissing the original bill, sustaining the
demurrer to the cross bill which was DIS
missed, and awarding costs in favor of the
complainants in the bill of review.
Nugent Il Neville and A. It. Roane for
appellant. ---fo for appellees.
CAMPBELL, j.,
Held
l. A bill of review for error apparent on
the face of the decree is in the nature of an
assignment of error, on writ of error and the
error must appear on the face of the plead
ings, proceedings and decree, without refer
ence to the evidence. Under our system all
the pleadings, proceedings of record and de-
cree may be looked to, on bill of review
for error apparent. The evidence cannot
be.
2. A demurrer is the proper and usual
defense to n bill of review for error appa-
rent for that amounts to an assertion that
there is no error in the deree or if the de-
cree sought to be reviewed is not fairly
stated in the bill of review, plea of the
decree, and demurrer against opening the
enrolment, is the proper defense.
3. Ordinarily, there is no answer to such
Il bill of review, except IN nul1o erratum est.
But, if there be any matter beyond the de-
cree, available as a defense to the bill of
review, that matter should be pleaded.
4. When the enrolment is opened, the
Court may proceed as at re-hearing, the
case being equally open. If the justice of
the cause requires that it should be
re-heard, that course should be pursued.
If the demurrer be overruled, such decree
should be made as is proper on the whole
case.
5. If the error apparent goes to the right
of the complainant to maintain his bill, it is
proper to proceed at once, without q re-
hearing, to reform the decree. But where
this is not the case, and a rehearing is ask
ed for, it should be allowed if sufficient
reason is shown therefor.
s. Applying the above stated rules to this
case, we conclude that the decree in the
original cause is erroneous on its face, be-
cause it is not warranted by the case made
bv the bill and that this is an error appa-
rent for which bill of review is maintain
able. The bill shows that there was no
lien on the land sought TO be charged WIN
it, and which was charged with it by the
decree.
I. The demurrer to the cross bill was
properly sustained, both because it was in
admissible as mode of defense to the bill
of review, and because it showed no right
to charge the land.
s. As the complainants in the bill which
attacks the decree are minors complaining
of an improper decree made against them,
they were entitled to impeach the decree for
error apparent, by original bill.