The opinion
Whitfield, C. J.
(concurring). — The prayer of the bill of complaint is in effect that the decree in the former suit “be declared null and void * * * and/or reversed or mod
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ified according to the equities of the parties hereto.” See Sections 21, 28 and 31 of 1931 Chancery Act.
The allegations and exhibits of the bill of complaint do not show fraud in not producing Exhibit No. 1 to be used as' evidence in the former suit, so as to warrant an adjudication in this suit that the decree in the other suit is null and void.
Though the tendency of Exhibit No. 1 be to show a sale of 1250 shares of stock to plaintiff as claimed by him, its production in evidence in the former suit would not have required a different decree. The chancellor found that there had been a colorable transfer of the shares of stock by Robert Gamble to Edward B. Gamble.
After giving due probative weight as' newly discovered evidence to Exhibit No. 1 containing a statement sworn to by A. M. Dixon, attorney in fact, that Robert Gamble did not return for taxation certain dividends on 1250 shares of' stock “because of the fact that he had sold the stock on which these dividends were paid to his son, Edward B. Gamble,” as well as to allegations contained in the bill of complaint with reference to Exhibit No. 1, there is ample evidence to sustain the adjudication in the former decree to the effect that though there was a colorable transfer of the 1250 shares of stock to Edward B. Gamble by Robert Gamble, the beneficial ownership of the stock was not transferred to the, plaintiff below; therefore motives for such transfer of stock need not be referred to in affirming the decree of April 4, 1933, dismissing the bill of complaint herein.
Brown and Davis, J. J., concur.