Gertrudes Flores y Seguin v. Samuel A. Maverick, 24 Tex. 526

Wheeler, C. J. The plaintiff framed her petition, seeking a recovery in two aspects. In the first, it is an action of trespass to try title, and to recover of the defendant, Maverick, the lot in question, which appears to be the principal object of the suit. In the second, it is in the nature of a bill* of review, to annul a judgment formerly recovered against her, by the defendants, Howard and Ogden, and to recover damages for the injury done her by the sale of her property under the judgment.

The plaintiff alleges that the defendant, Maverick, claims title to the lot in question, through a judicial sale under the judgment which she seeks to annul; and in order to show the invalidity of her title, she makes the record of the judgment a part of her petition. The court sustained a demurrer to the petition, as to the defendant, Maverick, and dismissed him from the suit; and the first question to be decided is, whether there be error in this ruling. We are of opinion that there is not.

The plaintiff having shown, that the defendant had a title by virtue of a judicial sale, founded on the judgment of a court of competent jurisdiction, it devolved on her further to show, that the judgment, or the sale under it, was void, in order to invalidate the. title. This, the plaintiff has failed to do. The judgment, however erroneous, is not, on its face, void. The grounds of invalidity alleged against the judgment, which are supported by the record, are only such as might be assigned as error, for the reversal of the judgment.

None of them (except the alleged want of notice of the suit, and that is contradicted by the record,) are grounds for declaring the judgment void. However erroneous the judgment may be, that is not a ground for annulling the title of the purchaser at a judicial sale under it. This title is not affected by error in the judgment. If the judgment were reversed for error, still the title of the purchaser would be upheld. It is alleged, that the judgment decreeing a foreclosure of the mortgage, is void, because it does not describe the property mortgaged, and that the defendant had notice thereof.

But the execution and act of sale, are not made a part of the petition, and were not before the court, on the hearing upon the demurrer. For aught that appeared, the sale might have been under an execution regularly issued on the money part of the judgment, independent of the mortgage. But if the writ, which was produced upon the trial, had been brought before the court upon the demurrer, we are of opinion that it was sufficient to support the title of the purchaser. (Lockridge v. Baldwin, 20 Texas Rep. 303; Castro v.

Illies, 22 Id. 479; 15 Id. 354.) It is not averred that the defendant, Maverick, participated in, or had notice of, the alleged fraudulent and wrongful acts of the plaintiffs in the judgment; and his title is therefore unaffected by them. (Sydnor v. Roberts, 13 Texas Rep. 598; Barnes v. Hardeman, 15 Id. 368.) We are of opinion, therefore, that the court did not err in sustaining the demurrer.

The remaining grounds of error assigned, have reference to the. ruling of the court upon that part of the plaintiff’s case, in which she sought to review and annul the former judgment, and to recover damages for the injury done the plaintiff, in its execution. The petition, in this aspect of it, combines the properties of a bill of review in chancery practice, for error in law apparent on the face of the decree; and a bill in the nature of a bill of review, impeaching the decree for fraud.

In the former view, it was not sustained by the court; in the latter, it was sustained; and the question of fraud in obtaining the judgment, fairly submitted for the decision of the jury. The question presented by the judgment of the court, sustaining the demurrer to this part of the plaintiff’s petition, is, whether a bill of review, as strictly and technically understood in the practice of a court of chancery, for error in law apparent upon the face of the decree, is known to ou,r law of procedure.

Our legislation has not adopted the pleadings and practice, either of courts of law or chancery, as known in the remedial jurisprudence of England and other common law countries; and their rules of practice are not of any obligatory force, as matter of absolute principle, farther than they have been introduced or recognised by our own statutory provisions. Where they have not received legislative affirmation, this court has been governed in their application, by considerations of their convenience and compatibility with the established law of procedure.

When applicable, and in harmony with our law of procedure, they have been observed and enforced. When not in harmony with our remedial system, or inapplicable to it, and inconvenient in practice, they have not been observed. They do-not constitute, necessarily, a part of our law of procedure, merely because they obtain, and are deemed of obligatory force in the courts of common law or chancery in other countries, whose jurisprudence is moulded upon the principles of the common law.

In the chancery practice in England, the decree usually recites the substance of the bill, answer, and pleadings, and also the facts on which the court founds its decree ; and there the established doctrine, says Judge Story, is, that “you cannot look into the evidence in the case, in order to show the decree to be erroneous in its statement of the facts. That is the proper office of the court upon an appeal. But taking the facts to be, as they are stated to be on the face of the decree, you must show that the court have erred in point of law.

If, therefore, the decree do not contain a statement of the material facts, on which the decree proceeds, it is plain, that there can be no relief by a bill of review, but only by an appeal to some superior tribunal.” (Story’s Eq. Pl. § 407.) In the chancery practice in the courts of the United States, the decrees do not usually contain a statement of the facts; and it is there held, that the pleadings are as much a part of the record, as the decree itself, and are the subject-matter of revision, by a bill of review. But in England, the pleadings cannot be referred to in support of the bill.

Nothing can then be looked at, but the decree itself. And, as it contains the facts upon which it is founded, the court has only to review the decree in the matter complained of, to see if it be rightly rendered upon the facts. If it be rendered, it does not open the case to a rehearing upon new matter. “ The cases of error apparent, found in the books,” (said Lord Eldon, in 17 Ves. 178,) “ are of this sort; an infant not having a day to show cause,” &c. To entitle a person to bring a bill of review, it is necessary that he should have obeyed and performed the decree.

The error must appear on the face of the decree, or pleadings, both in the English and American practice, and the evidence at large, cannot be gone into. A reversal of the decree does not produce a rehearing of the cause on the merits; but the court simply reverses the decree, if not warranted by the facts stated in the decree or the pleadings. There is no opportunity for amendment, if the bill be so fatally defective, as not to support the decree. The decree is reversed and annulled, and there is an end of the ease.

In the English practice, where the material facts are all stated in the decree, this may be a very convenient and salutary remedy, for it does but enable the court to pronounce the proper judgment upon the facts which are before it. It is but to deduce the true legal conclusion from the ascertained facts of the case. But in our practice, where the facts are not stated, it would be quite inconvenient; and would often result in irreparable injury.

For example, in the present case, if the court should be of opinion, that the petition on which the former judgment was rendered, did not state facts sufficient to show the liability of this plaintiff, the decree would simply be reversed and annulled, without the plaintiff having the opportunity to amend, by stating the facts necessary to show her liability; and thus, if he had in truth a good cause of action, he would suffer irreparable injury, by the defendant in that judgment resorting to a bill of review, instead of an appeal, or writ of error; for upon a reversal upon appeal, or error, the plaintiff would have it in his power to amend, and thus cure the error of the former judgment; upon an appeal or writ of error, if the judgment is reversed, the case is open for a new trial upon the merits; and so it is upon a supplemental bill in the nature of a bill of review, in the chancery practice. (8 Daniel, Ch.

Prac. 1739, 1740.) But it is not so upon the reversal of the decree upon a bill of review, for error in law apparent on the face of the decree. If there be error in the decree, it is reversed and annulled, and the plaintiff is without remedy. Such, at least, would be the effect in our practice, if this proceeding were introduced. It would, in this respect, be an anomaly in our law of procedure ; and one which we should by no means desire to see obtain prevalence. Has it been introduced by any legislative enactment ?

A bill of review, eo nomine, was first mentioned in the Act of Limitations of 1841, which declares, that “No writ of error or supersedeas shall be granted to any judgment at law, nor shall a bill of review be granted to any decree pronounced in equity, after two years from the time such judgment or decree shall have been made final.” (O. & W. Dig., Art. 1346.) If this statute is to be considered as having introduced this remedy, it must be regarded as limited to decrees in equity.

But it has never been considered, that the pleadings or remedies afforded by our law of procedure, were at all dependent upon, or varied by the consideration whether the case would be one of legal or equitable cognisance, in countries where the jurisdictions are distinct. To introduce such a distinction in remedies, would be to overturn all our hitherto received ideas and practice upon that subject; and would tend to the introduction of those jurisdictional distinctions respecting rights and remedies, which it has been supposed our law of procedure had rejected.

If the effect of this statute was to introduce the bill of review, as known to the chancery practice, I am of opinion that it was restricted in its application by the Act of 1846, regulating proceedings in the District Court, to the case therein provided for; that is, where service is by publication only, and the hearing ex parte. (Hart.

Dig., Art. 782, 783.) In that case it is provided, that the court shall make out, and incorporate in the record, a statement of the facts proved, and the defendant may, “ within two years after the rendition of such judgment, file his petition of review.” This statute was passed subsequently to the act of limitations, and was a statute professedly enacted to prescribe and govern the practice in suits in the District Court, and must, I think, be held to control the former provision, as respects the remedy, by specially providing in what case it may be employed.

By requiring a statement of the facts to be incorporated in the record, it renders the remedy practicable, and obviates the inconvenience which would attend its application, in our practice, to other cases. This statute uses the terms “petition of review;” and it has not been understood to restrict the remedy it provides, to what is understood in chancery practice by a bill of review strictly, but as having been intended in the more enlarged sense of affording a rehearing, or new trial of the case, on the merits. Such was the construction put upon the statute in the leading case upon this subject of Mussina v.

Moore, 13 Texas Rep. 8; and I think it might very well receive this construction, since the remedy by bill of review, was unknown in practice, and the legislature may be supposed not to have had in contemplation the technical distinctions of remedies known only to foreign systems of jurisprudence. If a bill of review proper, is known at all to our law of procedure, it is, I think, only in the cases provided by the statute, where service was by publication, and the trial ex parte, and not, as in the present case, where there was personal service upon the defendant.

There can never be a necessity to resort to this remedy, in order to obtain justice in our practice; for, “ the rule upon a strict and proper bill of review,” says Mr. Daniel, “is that the decree can be varied only upon such errors as are complained of.” (3 Dan. Ch.

Pr. 1732.) The remedy by writ of error, therefore, is as ample and beneficial in all respects, and it can be prosecuted within the same time, as a bill of review; besides that, it has the important advantage, that if the judgment be reversed, the whole case is re-opened for amendment of the pleadings, if necessary to the ends of justice, and a new trial upon the merits. The real merits and justice of the case may thus be finally attained; and that should be the great object of every part of the remedial system.

I cannot think it was ever intended by the legislature to engraft upon our system of remedial justice, a proceeding so anomalous and wholly foreign to its theory, and the scope and object of the established remedies for administering justice between parties litigant, as a bill of review for error apparent, as known to chancery practice in England, and the courts of the Federal Government, and those states which retain the embarrassing distinctions and complicated machinery of courts of law and chancery, in their remedial jurisprudence.

It was not intended to introduce the pleadings and practice in chancery; but to provide a remedy in the nature of a bill of review, or a new trial, in cases where the defendant had not been afforded the opportunity of making his defence, for the attainment of the right and justice of the case, by a rehearing, or new trial of the case, upon its merits. We therefore conclude that the court did not err in sustaining the demurrer to the petition, in so far as it sought to annul the judgment for error in law, apparent upon the record.

The view we have taken of this question, disposes of the objections urged to the instructions given by the court. The court sustained the petition in so far as it was a petition in the nature of a bill of review, seeking to impeach the former judgment for fraud. On this point there is no complaint of the charge of the court; nor is there any cause of complaint. The question was fairly left by the court to the decision of the jury; and their verdict was well warranted by the evidence. There was no evidence supporting the allegations of fraud, to require of the jury a different finding upon that issue.

We are of opinion that there is no error in the judgment, and it is affirmed. Judgment affirmed.