Whitney

This is an appeal from a judgment dismissing an action, a demurrer to the complaint having been sustained, and the plaintiff declining to amend. In September, 1886, some of the defendants, and the grantors of others, claiming title to the land involved in this suit, brought an action against the grantors of plaintiff to establish by judicial decree the true boundary line between the lands of the respective parties to that suit. The judgment therein rendered determined the boundary line, and adjudged the plaintiffs to be the owners of the tract of land involved in the present action. Plaintiff, as grantee of the defendants in that action, now files his complaint to set aside that judgment, upon the ground that it was procured through certain frauds practiced upon the defendants therein, the plaintiff’s grantors. The complaint further alleges that “ said lot was duly conveyed to plaintiff for value before the commencement of this action, and that he is now the owner and entitled to the possession thereof,” and further adding that the defendants herein have no title thereto other than that obtained by said j udgment.

This is an action to set aside a judgment upon the ground of…

I concur in the judgment.

The plaintiff cannot maintain an action to set aside the judgment complained of, unless the defendants in that action had such right, and it is incumbent on him to set forth his right of action as fully as it would be for them had they sought such relief. In an action to set aside a judgment for fraud, the plaintiff must not only show by his complaint the facts constituting the fraud which give him his right to the relief, but must also show that he has a defense to the original action upon the merits, and that he is able to present to the court the evidence constituting that defense. It is not sufficient to merely allege these matters as ultimate facts, or to aver them in the form of an affidavit of merits, but the facts themselves •— those constituting the fraud, those constituting his defense, and those constituting his ability to present them to the court—must be incorporated into his complaint, so. that the court may determine that if his allegations are admitted by the other party, the plaintiff would have been entitled to a judgment in his favor in the original action.

“A bill to set aside a decree for fraud must state the decree, and the…