¶1 On Rehearing.
¶2 A reversal of this cause should not be had on the authority of Norwood v. L. & N. R. R. Co., 149 Ala. 151, 42 South. 683, and De Soto Coal Mining & Development Co. v. Hill, 194 Ala. 537, 09 South. 948, Id.,188 Ala. 667, 65 South. 988, and eases there cited.
¶3 In Norwood’s Case, a judgment was rendered in the circuit court, a court presided over by a judge under the Lusk Act, against the Louisville & Nashville Railroad Company on the 20th day of January, 1904, such date being within the time for holding the circuit court in Limestone county, prescribed by previous statute. At such time this presiding judge was a de facto judge, and the judgment in question was valid. The motion made by the defendant in judgment, to set the judgment aside, was not attempted to be granted until after the expiration of that term of the court, and this purported order granting a new trial was'without authority of law. Hale v. Kinnaird, 76 South. 954. 1 The Lusk Act being unconstitutional, the court was not in session at the time of the attempted order granting the motion for a new trial, and therefore the valid judgment was not affected by such attempted action or order. Both the plaintiff and the defendant had mistaken the law and proceeded with the trial to judgment, on the erroneous assumption that the Lusk Act ,was constitutional, and that the court was in lawful session at the time of the attempt to set aside the judgment. Finding itself concluded by such judgment, and that the time for appeal had expired, the defendant in judgment filed its bill in equity to set aside the judgment because of this mutual mistake of law. This court properly held that the chancery court was without jurisdiction. A careful consideration of the opinion by Mr. Justice Simpson in Norwood’s Oase will show that tliat decision and the many authorities there collected support the dissenting view heretofore announced in the instant case.
¶4 In the De Soto Case, supra (194 Ala. 537, 69 South. 948, Id., 188 Ala. 667, 65 South. 988), the original suit was at law, for personal injuries to a minor under 14 years of age, and resulted in a judgment for the plaintiff. A bill' was thereafter filed to enjoin the collection of the judgment, on the theory or ground of fraud on the part of the plaintiff in an extrinsic or collateral matter —that is, that the plaintiff had submitted perjured or forged testimony in the trial at law to support the averred fact of his minority. We have no difference of opinion as to the governing principles in the De Soto Oase announced, to the effect that fraud, to be vitiating, must be in the very act of obtaining the judgment, or in its concoction, and hence “must be extrinsic ór collateral to the matter which was tried, and determined by the judgment in question,” that equity will not annul a judgment at law because of the use, on the trial, of forged documents or perjured testimony, and that misrepresentations by a party to the suit, as to the merits of his cause, do not amount to the preventive act contemplated by the rule that:
“When a party is prevented from discovering the defense by the act of the opposite party, unmixed with fault or negligence on his part, ordinary diligence is excused.”
¶5 What we do say is that the application of such cardinal rules to the facts averred in the bill in the De Soto Case does not conflict with the correct theory on which the bill was filed in the case at bar, to which the chancellor overruled appellants’ demurrers. In the instant case, we are not dealing with a case of “extrinsic fraud” or misrepresentation, or one that involves an act that prevented the party from discovering the defense of the opposite party, though ordinary diligence is shown by the injured party, but with a case of mistake of fact, of “extrinsic fact,” averred to have been entertained and acquiesced in by the parties before, and at the time of, the judgment, sale, and purchase, and which prevented a litigation in the law court of the complainants’ title to the land in the partition suit. That is to say, adopting the pungent phrasing of Mr. Pomeroy:
“There has been no fair adversary trial at law.”
¶6*106 That author further on says:
“A distinction is made between fraud, accident, mistake, and the like, relating to the subject-matter of the action, and similar elements relating to the conduct of the suit. Fraud relating to the subject-matter is not of itself sufficient ground for relief. Where it relates to the conduct of the suit, as where it prevents a party from asserting his rights, there is no fair adversary proceeding, and equity will interfere. The courts commonly speak of the former class as intrinsic, and of the latter as extrinsic, fraud, etc. Thus it is generally said that it is extrinsic fraud, mistake, and the like, which are grounds for relief.” 6 Pom. Eq. Jur. p. 1092; 2 Pom. Eq. Rem. § 648.
¶7 The fraud averred in the De Soto Case was of the intrinsic class — of the subject-matter of the suit at law by Hill- — and it was held to afford no basis for relief., The mistake of fact on which the present bill was grounded was of extrinsic facts, and it was participated in by the parties to the partition suit, by the purchaser at the sale, and by the court in confirming the sale. This mistake of fact continued to exist between the parties to the bill up to, and beyond, the time within which a statutory bill for 'review could have been filed by appellees. In view of the peculiar facts of the De Soto Case, and the rules of law declared there applicable, that case cannot be deemed an authority on which to hinge a reversal of the judgment on demurrer in the case at bar.
¶8 It may not be beside the question to observe that it is also averred in complainants’ bill that after the participation by appellants in the mistake of fact as to the sale and purchase of complainants’ lands, and the confirmation of the sale, appellants obtained the possession of the lands by acknowledging complainants’ superior title thereto and right of possession thereof, by becoming complainants’ tenants under a lease for a term of years, extending beyond the period fqr filing a bill under the statute for review. Thus were complainants lulled by appellants into repose and continued acquiescence in said mistake of fact existing at the time of the sale and purchase, and confirmation thereof, in the partition suit. Under the circumstances averred, this operates as an equitable estoppel against appellants, to thereafter assert their title so acquired; and it would be unconscionable to allow them to enjoy the fruits of such mistake, to the extent of depriving appellees of their lands.
¶9 A rehearing is granted.' And the decree of reversal heretofore rendered in this court is set aside and annulled, and the decree of the lower court is affirmed.
¶10 Affirmed.