No one can read the record herein without being impressed with the fact that a great wrong has been done appellant, and that the trial court was unwittingly made the instrument of legal robbery, if the judgment is legal. The facts, as stated in the majority opinion, indicate this. They might be stated much stronger,
This suit is based upon the equitable powers of the court to set aside the judgment obtained, if not by positive fraud at least by concealing the facts well known to the plaintiff, which, if they had been made known to the court, would have defeated his scheme to rob a woman and her minor daughter of their property. Gross v. McClaren, 8 Tex. 343; Ragsdale v. Green, 36 Tex. 195; *Page 790 McKean v. Ziller, 9 Tex. 58; Overton v. Blum, 50 Tex. 417; Robbie v. Upson (Tex. Civ. App.) 153 S.W. 407.
It is the province of equity to relieve against hardships which would be inflicted by the law by reason of its rigidity. Is equity so fettered that it cannot prevent a court of justice from becoming a refuge of lies? Is its arm so shortened that it must stand by and see this victim of fraud and chicanery crushed in the toils of the law as was Laocoon in the coils of the serpent? I do not think so. In support of this conclusion, I rely upon the decisions of the highest court in this state. As a basis for such conclusion I assert the following propositions of law:
1. A judgment on a petition bad on general demurrer is fundamentally erroneous. Railway Co. v. Skeeter, 44 Tex. Civ. App. 105, 98 S.W. 1065; Dunlap v. Southerlin, 63 Tex. 42; Hill v. Dons (Tex. Civ. App.)37 S.W. 639; Irrigation Co. v. Hudson, 98 Tex. 59.
2. A petition is bad on general demurrer which does not allege everyfact necessary to show that the plaintiff has a good cause of action against the defendant. As applying this general principle to suits on promissory notes, see authorities cited under the next proposition.
3. The facts necessary to allege in a suit on a promissory note are: (a) The execution and delivery of the note by the defendant to the payee; (b) the plaintiff's ownership of the same; (c) nonpayment. Lacking either of these the petition is fatally defective, and will not support a judgment by default. Ross v. Breeding, 13 Tex. 16; Sneed v. Moodie,24 Tex. 160; Fortune v. Kerr, 25 Tex.Supp. 310; Parr v. Nolen, 28 Tex. 798; Gilder v. McIntyre, 29 Tex. 90; Thigpen v. Mundine, 24 Tex. 282; Unger v. Anderson, 37 Tex. 550; Johnson v. Arlidge (Tex. Sup.) 17 S.W. 28.
4. The necessary facts must be directly averred, and not left to be inferred from other facts alleged. Jennings v. Moss, 4 Tex. 453; Gray v. Osborne, 24 Tex. 158, 76 Am.Dec. 99; Malone v. Craig, 22 Tex. 609; Moody v. Benge, 28 Tex. 547; Colbertson v. Beeson, 30 Tex. 77; Wood v. Evans,43 Tex. 182.
5. It is fundamental error to render a judgment without evidence to support it. Hardware Co. v. Lumpkin (Tex. Civ. App.) 150 S.W. 1195; Bldg. Ass'n v. Newman (Tex. Civ. App.) 25 S.W. 463; Withers v. Linden (Tex. Civ. App.) 138 S.W. 1119.
6. Testimony not based upon pleading is not evidence, and cannot be considered in support of a judgment. Menard v. Sydnor, 29 Tex. 260; Fisher v. Russell (Tex. Civ. App.) 204 S.W. 143; Mims v. Mitchell,1 Tex. 448; Denison v. League, 16 Tex. 409; Paul v. Perez, 7 Tex. 345; Benson v. Ashford, 216 S.W. 283.
7. A judgment by default does not waive or admit anything which it was necessary for the plaintiff to plead and prove in order to obtain a judgment. Menard v. Sydnor, supra; Shamburger v. Scheurrer (Tex. Civ. App.) 198 S.W. 1070; Goodlett v. Stamps, 29 Tex. 123; Hall v. Jackson,3 Tex. 309; Rogers v. Harrison, 1 White W. Civ.Cas.Ct.App. p. 244, §§ 494, 495.
I quote from the authorities cited in support of the fourth proposition, supra, as follows (italics mine):
"To have shown a right to recover, the plaintiff must have alleged title in himself. * * * This liability can only appear by averment." Jennings v. Moss. "A petition should state the plaintiff's cause of action by distinct averments, and not leave it to the court to deduce theexistence of one fact, from the statement of another." Malone v. Craig. "It is unquestionably an elementary principle, that the liability of the defendant to the plaintiff, on the cause of action for which the suit is brought, must be distinctly averred." Colbertson v. Beeson. "These [appropriate averments] must be of the facts * * * and not merelystatements of the evidence by which the cause of action, if stated, might be maintained, or conclusions derived from the evidence." Gray v. Osborne. "It is true, we may infer from the statements in the petition that he gave it [the note sued on] to Benge Jewell, that they are the owners of it, but in doing so we would be dispensing with a well-settled rule of pleading, which requires that the facts constituting the right of a party to recover, and fixing the liability of his adversary, shall be averred directly and distinctly in his pleading, andnot left to be supplied by inference." Moody v. Benge.
The excerpts from the decisions cited under the fourth proposition, supra, were not inconsiderate statements upon minor points, but deliberate utterances upon the issue involved. Neither of these cases has ever been overruled, limited, or criticized in any other case.
The statement that the material facts must be directly and distinctly alleged might, at first blush, seem to be in conflict with the well-established doctrine that, as against a general demurrer, allegations in a petition will be construed most favorably for the pleader. This idea can arise only by confusing the law as to pleading with the law of evidence. As a matter of evidence, a fact may be inferred from the existence of another fact, as is always the case where the evidence is circumstantial, but in pleading the fact relied upon must be alleged.
The rule in reference to the construction of a petition as against a general demurrer means only that if the language is ambiguous that construction will be given which will constitute it an allegation of the fact attempted to be alleged, in which apparent attempt the language is not as apt as it might have been. But it will not be construed as containing an allegation of fact, *Page 791 which under the most favorable construction given to the language used it did not contain, though such fact may be inferred from other facts alleged. Thus in Barnard v. Moseley, 28 Tex. 545, cited in Bryan v. Bank (Tex. Civ. App.) 174 S.W. 828, it was held that the "averment that the defendant, Barnard, gave the written instrument to the plaintiff, we believe equivalent to averring that he had made, executed, or signed and delivered it to the plaintiff" (Italics mine) and not that such fact would be presumed from other facts alleged. And so in Rutherford v. Smith, 28 Tex. 322, cited in the majority opinion, it was held that the word "transferred" was sufficient to show that title had passed. This was correct, as will be shown in a subsequent part of this opinion.
Applying these well-established principles to the instant case, how stands it upon the record?
It was necessary to allege that the plaintiff was the owner of the note sued on. There is no decision in this state or elsewhere holding to the contrary. The authorities cited in the majority opinion can be considered as sound only upon the theory that when the payee sues upon a note, and alleges that it was made, executed, and delivered to him, such allegation will be held "equivalent" to alleging that he was the owner of the note when the suit was instituted. There is nothing ambiguous in such language. It cannot under any construction be construed to mean that he was such owner at such time, though such fact may be inferred reasonably, but not necessarily, from such allegation. The authorities cited do not hold that the allegation that the note was executed and delivered to the payee is the equivalent of an allegation of ownership when the suit was filed, but only that such fact may be presumed from such allegation.
The language quoted from C.J., p. 886, is that the payee need notallege his ownership, "since it will be presumed that the payee of a note in possession thereof is the owner." This is to presume one fact from the existence of another, which is contrary to the elementary principles of pleadings, and against the holding of our Supreme Court in the cases hereinbefore cited and many others that might be cited.
I call attention to the fact that in the instant case the plaintiff did not allege that he was the owner of the note sued on. A phrase may be equivalent to a necessary allegation, when in common parlance it means the same thing. Thus "to give" implies a transfer of ownership, and will be construed to include whatever is necessary to effect that purpose, as the execution and delivery of a promissory note. And so an allegation will be equivalent to what is necessarily implied thereby. Thus, if it should be necessary to allege that the plaintiff was not born in the United States, an allegation that he was born in Germany would be equivalent thereto, as he could not have been born in the United States if he was born in Germany. But an allegation that the note sued on was executed and delivered to the payee at a time prior to filing suit thereon does not necessarily imply that he was the owner thereof when the suit was filed, and is shown by the facts of the instant case, and might be true in any case.
I have examined the original record in Cattle Co. v. Carroll, and find that there was no assignment of error as to overruling the general demurrer, consequently that point could not have been decided in that case. What was said in reference thereto was dicta, and it is apparent that it did not receive any consideration at the hands of the learned judge who wrote that opinion. In this connection, I call attention to the fact that the learned Judge who wrote that opinion was Chief Justice of the court which approved the decision in the subsequent case of Johnson v. Arlidge, supra.
Ins. Co. v. Gibbs (Tex. Civ. App.) 35 S.W. 679, was a suit on an insurance policy which is not a negotiable instrument. The case was reversed upon another point. In House v. Mortgage Co., the issue was not as to pleading, but as to evidence. Collins v. Bank, 75 Tex. 255,11 S.W. 1053, was not on the issue of pleading, but upon the right of the plaintiff, who had alleged that he was the owner and holder of the note, to strike out an indorsement thereon, citing Cattle Co. v. Carroll in support of such right.
Whatever difference of opinion there may be as to the sufficiency of the petition to sustain the judgment by default, it seems clear to me that this case should be reversed for want of evidence to sustain such judgment. Under authority of Johnson v. Arlidge and Cattle Co. v. Carroll, supra, if upon the trial it was made to appear that the plaintiff at a time prior to the trial had parted with title to the note, in order to recover he must have alleged and proved that it had been reconveyed to him at a time prior to the institution of the suit. In the instant case, as in the Cattle Company Case, he did neither. Does the petition in this case show such fact? Clearly so. It shows that the suit was upon a note, which he was required to produce upon the trial. 8 C.J. pp. 950, 958, 1044, 1056, 1059; Davis v. Marshall, 25 Tex. 373; Bond v. Mallow, 17 Tex. 637; Matossy v. Frosh, 9 Tex. 614. The note when produced showed upon the back thereof the following indorsement:
"For value received I hereby sell, transfer and assign to Mrs. Johanna Pochyla the within note, together with the vendor's lien on the property securing the same, and, as indorser, I guarantee the payment of the within note at maturity, or on demand at any time after *Page 792 maturity, waiving protest and notice of nonpayment. "[Signed] Henry F. Pochyla."
In the majority opinion herein it is said, "he might have erased the indorsement." If the petition herein does not show the contrary, and he had the legal right so to do, we would be required, in support of the judgment, to presume that he did so. I think a fair construction of the petition herein shows that the indorsement was not erased. The allegation in this regard is that the judgment against her is void, "because the note sued on shows on the back thereof that it, together with the vendor's lien securing the payment thereof, was sold to Mrs. Johanna Pochyla for a valuable consideration, and bears the indorsement of H. F. Pochyla," setting out the same as above. It is alleged that such indorsement was made prior to February 28, 1917. The words "shows" and "bears" are in the present tense, and mean that such indorsement was on the note when the petition herein was signed and sworn to, which was long subsequent to the time when judgment was rendered against her.
The reason given in Cattle Co. v. Carroll, supra, for permitting a payee of a note in possession thereof to strike out his indorsement thereon is that such possession raises the presumption, until the contrary is shown, that the payee had never at any time parted with the title to the same. The original record in Cattle Co. v. Carroll shows the indorsement as follows: "Pay to Dodridge Davis" — and is signed by the payees. Such indorsement is not inconsistent with the presumption that it was made in contemplation of a deal which had not been consummated, or for collection. Dodridge Davis were bankers. But, when it was shown by the testimony of Dodridge that his firm in fact purchased the note and had reconveyed it to the plaintiffs, striking out such indorsement availed the plaintiffs nothing, though it was shown that they were the owners of the note at the time of the trial.
In the instant case, H. F. Pochyla was not the owner of the note at the time of the trial, and, had he stricken out the indorsement thereon, without the consent of the owner, which he did not allege, and therefore it cannot be presumed, he would have been guilty of forgery. Penal Code, art. 925.
Did the indorsement show that H. F. Pochyla had parted with ownership of the note? If so, this case is on all fours with Cattle Co. v. Carroll. The language in the indorsement, "for value received," "guarantee payment," and, "waiving protest and notice of nonpayment," is consistent with the idea that the indorsement might have been for collection, as is also the further fact of a specific assignment of the vendor's lien.
But the use of the words "sell" and "transfer" leave no doubt that the indorsement was intended to and did pass the legal and equitable title to the indorsee.
"To sell a thing is to part with ownership to the buyer for a compensation." 7 Words and Phrases, 6406. "To transfer imports an act or transaction by which the property of one person is vested in another. This, without the use of some qualifying word, is the legal meaning of the term. Abbott's Dictionary; Bouvier, Dictionary; Webster; Pearre v. Hawkins, 62 Tex. 437." 8 Words and Phrases, 7064.
Thus it appears that the evidence which must necessarily have been produced on the trial conclusively proved that H. F. Pochyla had parted with title to the note prior to the institution of the suit.
But might he not have testified that the note had been reconveyed to him? He must both have alleged and proved such fact. Cattle Co. v. Carroll, 63 Tex. 53. He did not allege such fact. In the absence of such allegation, such testimony, if it had been given, would not constitute evidence in support of the judgment. Menard v. Sydnor, 29 Tex. 257; Tinsley v. Penniman, 83 Tex. 58, 18 S.W. 718; Bank v. Grain Co. (Tex. Civ. App.) 187 S.W. 489; Bank v. Harris (Tex. Civ. App.) 194 S.W. 961; Nalls v. McGrill (Tex. Civ. App.) 184 S.W. 276.
The majority opinion is based upon the proposition that, in order to obtain a new trial as against a judgment by default, it is necessary, not only that the defendant should show a meritorious defense, as was done in the petition herein, but also that the failure to present the same was not the result of negligence on the part of the defendant. This is true where the plaintiff appears to have been entitled to the judgment which he recovered, in the absence of anything appearing upon the record to defeat his cause of action. If there is any extraneous fact which would, if shown, have defeated plaintiff's cause of action, it devolves upon the defendant to allege such fact, and also to show a good excuse for not seasonably presenting the same. Thus payment, homestead coverture, etc., must be pleaded and proved by the defendant where such fact does not appear from the plaintiff's pleadings. But, if it be shown by the plaintiff's pleadings that he is not entitled to the judgment which he recovered, as where he alleges that the defendant is a married woman, and takes a personal judgment against her, or where the note sued on shows credits which were not allowed in assessing the damages (Holland v. Cook,10 Tex. 244), and there was a judgment by default, the defendant need not, in his motion for a new trial, allege the existence of such facts, and consequently need not show any excuse for not pleading them. In such case, "the question is not whether the defendant would be entitled to equitable relief against the judgment," by reason of some fact which he might have pleaded, but *Page 793 did not. "But the question here is whether there was error committed in the rendition of the judgment." Holland v. Cook, supra; McCauley v. Bank (Tex. Civ. App.) 173 S.W. 1001.
The majority opinion seems to draw a distinction between an appeal from a judgment by default, or overruling a motion for a new trial in such case, and the equitable proceeding instituted in the instant case to set aside such judgment. My learned brethren do not seem quite prepared to hold that had this been such an appeal this case should not be reversed. I know of no substantial difference in such proceedings. Both are direct attacks upon the judgment. If the plaintiff alleged a cause of action and sustained the same by proof, where proof is required, the defendant must show that by reason of facts which he failed to plead he has a meritorious defense against plaintiff's alleged cause of action, and must also show a good excuse for not pleading the same as required by law. Or, if, independent of any defense which he might have had, the record shows that the plaintiff was not entitled to judgment, the judgment by default will be set aside when it is so made to appear, whether on statutory appeal, or by appeal to the equitable powers of the court.
In my opinion, this case should be reversed and remanded for the reasons:
(1) The judgment complained of was not justified by the pleadings.
(2) Such judgment was rendered without any legal evidence to support it, and against