The first assignment, predicating error upon the court's peremptorily instructing a verdict against plaintiffs, should, we conclude, be sustained in part as to all defendants except the defendant Venable and as to him it should be overruled. It should be held, we think, that there is evidence sufficient to raise an issue for decision by the jury of the intention of M. J. Dean *Page 92 to effectuate delivery of the deed to pass title to appellant, or to appellant and his sister. Being in the attitude of an owner, under the issue, of the entire tract at the time of the partition suit, then appellant would further be entitled, if the evidence warranted the issue, to have the jury find whether or not the judgment of partition was obtained by the alleged fraudulent conduct practiced by R. A. Dean in respect to the concealment of the real facts about the conveyance to appellant, and whether or not the purchasers, Griffin and Venable, had knowledge of such conduct and fraud of R. A. Dean. It is believed, however, that notwithstanding a favorable finding to appellant by the jury be here assumed by the court — that appellant was the owner by deed, and was prevented by the alleged fraudulent conduct of R. A. Dean from advancing his title against any partition judgment — it would nevertheless follow in this record, as a matter of law, that appellant cannot maintain his suit to cancel and set aside the judgment in the partition suit, and then to recover the land, or its value, of the defendants Griffin and Venable, because of such alleged fraud of R. A. Dean. In this connection the evidence conclusively shows, as held by the trial court, that Griffin and Venable each separately purchased the land from R. A. Dean in good faith, for a valuable consideration, without any knowledge that a conveyance had been made to appellant, and that R. A. Dean had concealed and failed to disclose its existence before and at the time of the partition judgment. In this state a judicial partition necessarily involves, and finally adjudicates the rights and interests of the parties to the land. Article 6115, R.S.; Gurley v. Hanrick, 139 S.W. 725. Therefore, though it be assumed as a fact that the partition judgment was entered on fraudulent facts of title practiced by R. A. Dean, yet in the absence, as here, of any knowledge on the part of Griffin and Venable of any fraud or vice entering into the partition judgment, and the partition judgment not being obtained in furtherance of a general scheme of fraud by them, such judgment of partition, through which their title to the specific property comes, would, as against the alleged secret fraud, be valid as to Griffin and Venable. McCown v. Foster, 33 Tex. 241; Freeman on Void Judicial Sales, § 41. The title under the partition judgment is, as held by the trial court, in the hands of innocent vendees, not rendered void by proof of the real facts. The court did not err in giving the instruction on the ground of fraud in favor of Griffin and Venable. And notwithstanding there may be presented an issue as to the alleged fraud of R. A. Dean practiced in obtaining the partition judgment, a recovery in the nature of damages against R. A. Dean for either the value of the land or the price he sold it for could not be predicated on the allegations of the petition, and in consequence the court did not err in not submitting it to the jury. The allegations in the petition expressly predicate a recovery of the land upon the ground that the title did not pass to Dean and the purchasers, because of fraud and knowledge thereof. If the allegations be true that the land was not legally lost to appellant, then appellant has not by his allegations made it appear directly or by intendment that the alleged wrongful conduct or fraud of R. A. Dean proximately caused the loss to appellant of his land to innocent purchasers so as to recover the value of the loss as damages from R. A. Dean. And on the allegations as a whole, properly construed, there was no room to award compensation to appellant against R. A. Dean personally, for the petition affirmed, if the facts alleged be true, that appellant had not legally lost the land, and the title had not legally passed from appellant.
The appellant further relies upon the right to recover the land upon the further allegation that the partition judgment was void because of the want of any legal summons or notice to the defendant minors. That there was no service of process on the defendant, or that the service was not in substantial accordance with prescribed terms of law, is, in general, good ground for setting aside a judgment. In a direct attack upon a judgment, as is the instant proceeding, it in admissible to the party to show by extrinsic evidence that one part of the record contradicts another part. Thus the recital in a judgment may be contradicted by producing the original summons and return. In this connection it was conclusively proven that at the time of the partition suit and the rendition of the judgment the appellant and the other defendant Deans were each minors residing with their mother in the state of Arkansas. And the said minors, it is shown, did not make any appearance in the partition suit personally or by guardian, except through the guardian ad litem appointed by the court. There is testimony going to show that a citation was issued in the partition proceeding, and forwarded to Arkansas for personal service upon the minors, and the sworn return showed personal service upon each of the minor defendants. But there is evidence sufficient to support the finding, if made by the jury, that the return did not truly state the facts, and that the minors were not, in point of fact, served in person with citation. The service of citation upon minors is as indispensable in partition suits as in other judicial proceedings, and must be made in the same manner. Without service upon the minors, the judgment would be invalid, in a direct attack, as here, as to the parties to the judgment. But, under the decided cases, the rights acquired by bona fide purchasers for value through a judgment reciting service, as here, will not be *Page 93 disturbed, though the judgment be invalid. Carpenter v. Anderson,33 Tex. Civ. App. 491, 77 S.W. 291; Williams v. Young,41 Tex. Civ. App. 212, 90 S.W. 940. Under this ruling Venable was entitled to a verdict for the land, under the facts, as a matter of law, and the court did not err in directing a verdict as to him. And as to Venable the judgment will be affirmed.
But the ruling above would not entirely, in view of special facts, be applicable to defendant Griffin in adjusting his rights to the land purchased by him. It appears that in the purchase of the land from Dean by Griffin the recited cash consideration in the deed was in fact not cash, but was a credit on his purchase to the extent of the interest thought or believed to be coming to his wife in this part of the land. And it can be concluded as a fact from the record that Griffin was buying in fact only the interest in the 53 acres above what was estimated to be his wife's interest therein. Upon the theory that appellant was the owner by deed of the entire tract, Mrs. Griffin would have no interest to sell or be paid for. And it would follow that Griffin, to the extent of the amount of his credit of $214.25, recited as cash, was in the attitude of not having paid it at all in fact, and was in the attitude of not purchasing in fact all of the 53 acres, but only the interest his wife did not have therein. It is unnecessary to discuss the pro tanto rights accorded an innocent purchaser. It is sufficient, as against a peremptory instruction, that the issue was made of whether or not Griffin was a purchaser for value to the extent of $214.25. It is believed that in this respect, and for this reason, the judgment as to Griffin must be reversed. If it should be found under the issue of fact that appellant was the owner of the land by deed, and that there was no service upon him in the partition judgment, then the pro tanto protection to be accorded Griffin is involved as a matter of determination and remedy. As appellant was entitled to have the jury pass upon such issues of fact as the pleading and evidence warranted, we cannot assume appellant's rights as claimed by him, and adjust Griffin's rights in respect thereto. And it is only in the event it be found as a fact that appellant was the owner by deed of the entire tract that Griffin could be disturbed in his ownership of the land.
Appellant has argued other grounds, which we have considered; but the decision, we conclude, must rest upon the points herein discussed. It is further observed that any question concerning the rights of the holders of the notes not parties to the suit is not and cannot be here involved.
The judgment is reversed, and the cause remanded, as to all defendants but J. W. Venable, and as to J. W. Venable the judgment is in all things affirmed.