* Writ of error dismissed 87 S.W.2d 463. *Page 953 In the above-entitled suit Mrs. Stella Burguieres has prosecuted an appeal from a judgment of the district court of the Ninety-Sixth judicial district, denying her petition in the nature of a bill of review to set aside that portion of a judgment theretofore rendered by the same court in a former suit by her for divorce against her former husband, John E. Farrell, in which she was divested of her interest in the community estate of herself and said Farrell and same vested in him in accordance with a written agreement of the parties to that suit on file therein; and also to cancel said written agreement. The grounds for that relief are set out in her petition in the nature of a bill of review. That appeal is now pending in this court. As shown by allegations in plaintiff's petition, the former suit for divorce and property settlement, instituted by her, was tried before Hon. Hal S. Lattimore, the regular elected judge of said court, who granted the divorce and also decreed the property settlement now complained of. After the divorce was granted, plaintiff married again to Alfred L. Burguieres, but she was by order of court given leave to institute and prosecute her present suit to set aside the former judgment of property settlement in her present married name of Stella Burguieres without joinder by her husband. But no effort was made to set aside the decree of divorce. As shown by the record, the suit now on appeal was tried before Hon. Marvin H. Brown, who had succeeded Hon. Hal S. Lattimore as judge of the same court. Both of said judges are now associate justices of this court; and appellant has filed a motion to disqualify Justice Lattimore from acting as one of the justices in the disposition of the appeal which is now pending.
The facts alleged in and made the basis of the motion to disqualify were developed in the trial of the case now on appeal and relate to what occurred after judgment in the divorce case had been entered and are as follows:
"Motion for new trial by defendant J. E. Farrell.
"Now comes the defendant and says the judgment in this cause is erroneous and should be set aside for the following reasons:
"(1) The evidence submitted to the court was not sufficient to justify a divorce and did not show any grounds therefor. *Page 954
"(2) The judgment was procured by fraud on the part of the plaintiff in that the plaintiff induced the defendant to believe that her grief caused her to wish a separation in order that she might compose her mind and consider further what her relations to plaintiff would be when, in fact, plaintiff only wanted a divorce, knowing that she had no grounds therefor, in order to embarrass the defendant by seeking marriage with another.
"Wherefore defendant prays for a new trial.
"[Signed] J. E. Farrell."
Testimony of Judge Lattimore given on the trial of the present suit to set aside the property settlement:
"Q. Now, I'll ask you if John Farrell came to see you, or if you saw him anywhere else after the divorce was granted, and, if so, when? A. Well, the next time I saw Mr. Farrell was later, I can't say how soon. I know it was less than ten days because of what I shall relate, but I can't give you the exact number of days that it was after the divorce hearing. He came to my office there, and he said that he was not willing for this settlement, this property judgment, to stand, and wanted to talk to me about it.
"Q. Did he say why he didn't want it to stand? A. Yes.
"Q. Tell the jury what he said. A. He said that he had some information that his wife had formed some attachment and relation for a man in New Orleans, and that he felt like her property would be dissipated, and that he was going to — he felt like the decree ought to be set aside, and some steps taken to protect it.
"Q. Did he give any reasons why, other than that, about the New Orleans man? A. Yes.
"Q. What was it? A. Well, he said that — * * *
"A. He said he had understood that she was planning to get married to a man in New Orleans, who would simply live off of what he got from what Mrs. — the Mrs. Farrell had. I can't pronounce that name and hence don't attempt it — that he would simply live off of what the then Mrs. Farrell would get from this marriage settlement, and that he was not going to have that fellow living off of his money.
"Q. You say that was within the ten days as provided by statute for a new trial? A. Yes.
"Q. Was anything further said? A. Yes, he said, `I want to know what to do about it.' And I said, `Well, you had better go and consult your lawyer.' And he said, `I don't have any.' And I said `well, you don't have any lawyer'. He said, `No, Mr. Zweifel was agreed on by us to handle this divorce matter, and I don't have a lawyer.' And I said, `well, you had better file a formal motion for new trial, which must be filed within ten days, and then you can get you — go and get you a lawyer, and he will amend it, and get it up in shape that it can be presented, if it is any good.' And he said, `I don't know how to do that'. And I took up my pencil and sketched off the elements that must be in to make a motion for new trial. And I said, `go down and write up something that embody these elements, and file it, and it will be sufficient to hold the thing until you can get you a lawyer, and amend it, and set up in whatever shape you want it to be in, if one can be presented that will be good.'
"Q. That was in order to have something on file before the ten days was up? A. Yes, the law requires a motion for new trial to be filed in ten days, and an amendment can be made thereafter setting up what you really want.
"Q. Do you know how much more time he had before the ten days would have elapsed? A. Well, I just don't remember. But I do remember that the time was so short it was apparent that he would have to do something pretty promptly, but I couldn't attempt to say within hours or even days of when it was."
Testimony of J. E. Farrell:
"Mr. Slay: Now, Mr. Farrell (exhibiting defendant's exhibit 23 to the witness), this exhibit, the motion for new trial you testified about, examine it, so you will know what I am talking about, please, sir. A. Yes, that is it.
"Q. I believe you said you dictated that yourself, or wrote it, on the machine yourself? A. I wrote it on the machine. Judge Lattimore dictated it for me, wrote it out. It was last day and I didn't have any more time.
"Q. You say Judge Lattimore dictated it to you? A. He told me the high-lights about it.
"Q. He told you the high-lights about it, and you went down and put it on the machine yourself, and wrote it up yourself? A. Yes, sir. *Page 955
"Q. He didn't give you a written memorandum, though, of what to put in, did he? A. Just on these two points here.
"Q. Did he write it down for you? A. Yes, in pencil.
"Q. Or did he just tell you? A. Yes, he told me and wrote it down in pencil for me.
"Q. Oh, did he write it out in detail like it is here? A. Well, I couldn't say that, whether he wrote it out in detail.
"Q. Tell this jury whether or not you wrote that yourself, or whether he gave you the points and wrote it yourself, or whether he wrote it, and then you copied it. A. No, he gave me the points in pencil, and then I took this down to the office and wrote it myself. You will find that you will find those letters which are written to Sis, you will find it is the same type.
"Q. Now, who made the endorsements and put the number on the back of it? A. I don't know who did that."
Article 5, § 11, of the Constitution reads: "No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when he shall have been counsel in the case. When the supreme court, the court of criminal appeals, the court of civil appeals, or any member of either, shall be thus disqualified to hear and determine any case or cases in said court, the same shall be certified to the governor of the state, who shall immediately commission the requisite number of persons learned in the law, for the trial and determination of such cause or causes."
In support of the motion now before us, appellant has cited decisions in which it was held that trial judges were disqualified to try cases because prior to the time the same were tried they had to some extent acted as counsel in advising the litigants in matters involved in those cases. Among the cases cited are the following: Slaven v. Wheeler,58 Tex. 23; Barnes v. State, 47 Tex. Crim. 461, 83 S.W. 1124; Durham v. State, 58 Tex. Crim. 143, 124 S.W. 932; Johnson v. Johnson (Tex.Civ.App.)89 S.W. 1102.
In Gaines v. Hindman (Tex.Civ.App.) 74 S.W. 583, this was said:
"Appellant, who was constable of a precinct, sued appellee, who was the sheriff of Palo Pinto county, to recover a portion of a reward paid to the latter by the United States government for the arrest and conviction of certain persons who had robbed a post office in that county. The cause was first tried in the justice court, where appellant had judgment, and subsequently appealed to the county court, where the judgment was for appellee, and the constable appeals.
"We are inclined to think the county judge who tried the case was disqualified under article 1129 of Sayles' Ann.Civ.St. 1897. At the request of the sheriff's deputy, the county judge prepared a motion for new trial in behalf of appellee in the justice court, and, while he states that he knew nothing of the facts of the case, and of course did not understand that he was the counsel of appellee, nevertheless he was to that extent performing the functions of counsel, and the courts should not be required to investigate the extent of the services of one who thus acts in that capacity."
However, following that announcement, the judgment of the trial court was reversed because of an erroneous instruction to the jury.
It is our conclusion that the action of Judge Lattimore with respect to the motion for new trial in the divorce case was within his general discretionary powers to accord to J. E. Farrell the benefit of a legal right, of which he was ignorant, and concerning which he had no attorney to advise him. It in no manner affected the judgment that had been rendered in the case already. Nor did J. E. Farrell file an amended motion for new trial, or invoke any ruling of the court on his original motion, filed at Judge Lattimore's suggestion, which, therefore, was overruled by operation of law. And Farrell did not prosecute an appeal from the decree in the divorce case. If an appeal had been prosecuted by the plaintiff in that case, we believe it clear that such action of Judge Lattimore could not have been held reversible error. Nor was the same alleged as a ground for setting aside the decree of property settlement. The argument of appellant in support of the motion to disqualify is based solely on the contention that the *Page 956 advice given to Farrell by Judge Lattimore was necessarily in the capacity of counsel, and therefore shows his disqualification to sit in the determination of this appeal; with this further statement in connection with that argument: "We disclaim any thought or notion of attributing to Judge Lattimore anything but the very best intentions in his advice and counsel to the appellee Farrell."
We cannot concur in this view. It is our conclusion that if, as we believe to be true, the action of Judge Lattimore complained of was not an abuse of his judicial discretion in the disposition of the divorce suit, it would be illogical and contradictory to now hold that such advice was beyond the discretionary powers of the judge and constituted advice of counsel to client and therefore showing disqualification of Judge Lattimore to participate in the determination of this appeal. We believe our conclusion finds support in the general principles announced in 64 C. J. pp. 66 and 101; 3 Tex.Jur., § 760, p. 1079; 25 Tex.Jur. pp. 288-293, and that the decisions cited by appellant are not controlling here because of the distinguishing facts on which they were based, in that the disqualifying circumstances there involved occurred prior to the trial of the cases and in most instances before the election of the judge trying them.
And it is well settled that a judge of an appellate court is not disqualified to determine the merits of an appeal because the judgment appealed from was rendered by him as a trial judge. Galveston Houston Inv. Co. v. Grymes, 94 Tex. 609-615, 63 S.W. 860, 64 S.W. 778.
Accordingly, the motion to disqualify Judge Lattimore is overruled by the majority of this court. And we will add that he has taken no part in this disposition of the motion.
Opinion. On the 8th day of August, 1931, the district court for the Ninety-Sixth judicial district granted Mrs. Stella B. Farrell a divorce from John E. Farrell and as a part of the same decree entered judgment settling the property rights between them in accordance with the written agreement of the parties then on file, plaintiff having prayed for a division of the community property.
Following the decree dissolving the marriage relation between the parties, the judgment, after reciting the terms of the agreement, was as follows:
"It is further ordered, adjudged and decreed by the court that defendant shall pay to plaintiff the sum of Seven Hundred Fifty ($750.00) Dollars per month so long as plaintiff shall live, such payment to be due and payable on the first day of each and every succeeding month.
"It is further ordered, adjudged and decreed by the court that the defendant recover of and from the plaintiff as his own separate property all of the property, real, personal and mixed belonging to the community estate of plaintiff and defendant, and that said property of said community estate shall be and become the sole and separate property of the defendant, and any and all right, title and interest in and to said property now belonging to said plaintiff, or which might or could be claimed by her, shall vest in and belong to the defendant, and the plaintiff shall, upon demand, execute and deliver to said defendant good and valid assignments or conveyances for any or all of such property conveying fee simple title to defendant."
Following is that agreement of the parties:
"State of Texas, County of Tarrant
"Whereas, John E. Farrell and Stella B. Farrell were united in marriage at Fort Pierce, Florida, on or about the 19th day of April, 1920, and lived together as husband and wife until about the 1st day of March, 1931; and
"Whereas, during the time said John E. Farrell and Stella B. Farrell lived together as husband and wife they acquired certain real and personal property which comprises their community estate and which is not susceptible of partition; and
"Whereas, on the 8th day of July, 1931, the said Stella B. Farrell filed her petition in the 96th Judicial District Court of Tarrant County, Texas, praying that the marriage relation between herself and the said John E. Farrell be dissolved, and said John E. Farrell and Stella B. Farrell have agreed that in the event said marriage relation is dissolved by judgment of said court as prayed for in said petition, in lieu and instead of a partition of said community estate the said John E. Farrell shall pay to the said Stella B. Farrell the *Page 957 sum of Seven Hundred Fifty ($750.00) Dollars per month so long as she shall live, and the said Stella B. Farrell shall transfer, assign and convey unto the said John E. Farrell all her right, title and interest in and to said community estate; now, therefore.
"This Agreement, made and entered into this 8th day of July, 1931, by and between John E. Farrell and Stella B. Farrell, of Tarrant County, Texas,
"Witnesseth: That said John E. Farrell, for and in consideration of the premises and of the promises and agreements hereinafter contained on the part of the said Stella B. Farrell to be made, kept and performed, has agreed and does hereby agree to pay to the said Stella B. Farrell the sum of Seven Hundred Fifty ($750.00) Dollars on the first day of August, 1931, and the sum of Seven Hundred Fifty ($750.00) Dollars on the first day of each and every month thereafter so long as she shall live, said payments to be made by the said John E. Farrell to the First National Bank of Fort Worth, Texas, with instructions to said bank to promptly pay the same to said Stella B. Farrell, and for the purpose of guaranteeing such payments the said John E. Farrell has agreed and does hereby agree to deposit in trust with said First National Bank the sum of Twenty Thousand ($20,000.00) Dollars in cash and two hundred (200) shares of the capital stock of United States Steel Corporation, of the approximate present value of Twenty Thousand ($20,000.00) Dollars, provided that said John E. Farrell shall have the right at any time to withdraw said shares of stock from said bank upon depositing with said bank the further sum of $20,000.00 in cash in lieu thereof, and provided further that said First National Bank shall have the right to sell said shares of stock for cash in the event it becomes necessary to convert said shares of stock into cash for the purpose of meeting any of the payments herein provided for, and in the event said John E. Farrell fails to make any of the payments herein provided for, such payments shall be made by said bank to said Stella B. Farrell out of such trust fund, and in such event said Stella B. Farrell shall have the right to require the said John E. Farrell to deposit the amount of such payment or payments with the said First National Bank in order that said trust fund shall at all times be maintained at the sum of Forty Thousand ($40,000.00) Dollars or at the sum of Twenty Thousand ($20,000.00) Dollars and said two hundred (200) shares of the capital stock of United States Steel Corporation.
"In Consideration whereof said Stella B. Farrell has agreed and does hereby agree that all property, real, personal and mixed, belonging to the community estate of the parties hereto, shall be and become the sole and separate property of the said John E. Farrell, and any and all rights, title and interest in and to said property now belonging to said Stella B. Farrell, or which might or could be claimed by her, shall be, and the same hereby is transferred, assigned and conveyed unto said John E. Farrell, free from any and all liens or claims on the part of said Stella B. Farrell, and, for the same consideration, said Stella B. Farrell has agreed and does hereby agree that she will, upon demand, execute and deliver to said John E. Farrell good and valid deeds, assignments or conveyances for any and all of such property conveying the fee simple title therein to said John E. Farrell.
"In witness whereof, we have hereunto set our hands this 8th day of July, 1931.
"[Signed] John E. Farrell
"[Signed] Stella B. Farrell."
That agreement was duly acknowledged by the parties, Mrs. Farrell's acknowledgment being in accordance with statutory requirements for acknowledgment by a married woman.
Prior to the institution of the divorce suit, John E. Farrell had acquired oil leases in Gregg county and he and his associates had assigned same to the Yount-Lee Oil Company by contract in writing, dated March 11, 1931. The interest so acquired by Farrell belonged to the community estate of himself and wife when the divorce suit was instituted on July 8, 1931, and when the judgment was rendered on August 8, 1931, and the following are the pertinent portions of that assignment:
"State of Texas, County of Jefferson, Know All Men by These Presents:
"That we, J. E. Farrell, acting herein by and through W. A. Moncrief, his duly authorized Attorney-in-fact, and W. A. Moncrief, individually, W. S. Noble and R. S. Baker, all of Tarrant County, Texas, and E. A. Showers, of Dallas *Page 958 County, Texas, hereinafter called Grantors, for the consideration hereinafter set forth, have granted, sold, conveyed, transferred and assigned, and do by these presents grant, sell, convey, transfer and assign unto the Yount-Lee Oil Company, a corporation duly incorporated under the laws of the State of Texas, with its principal office at Beaumont, Jefferson County, Texas, the following described oil, gas and mineral leases, (together with all physical property and/or equipment belonging to Grantors located thereon except one drilling rig and equipment connected therewith covering the hereinafter described lands in Gregg County, Texas, towit (here follows description of various tracts aggregating 2,679.36 acres, but which, as the evidence shows, when they were surveyed aggregated 2,559.3 acres).
"The consideration for this transfer and assignment of said above described oil, gas and mineral leases is as follows:
"(a) The Sum of Nine Hundred Fifty-Seven Thousand Five Hundred ($957,500.00) Dollars cash, receipt of which is hereby acknowledged by Grantors.
"(b) One Hundred Thousand ($100,000.00) Dollars due and payable on May 1st, 1931; One Hundred Thousand ($100,000.00) due and payable on July 1st, 1931; and One Hundred Twelve Thousand Five Hundred ($112,500.00) Dollars due and payable on September 1st, 1931; said amounts payable at the First National Bank of Longview, Texas, and to bear interest at the rate of six (6%) per cent per annum from maturity.
"(c) Two Million ($2,000,000.00) Dollars to be paid out of one-fourth (1/4) of said Yount-Lee Oil Company's working interest in the oil and/or gas produced and saved from the lands covered by this assignment, if, as and when produced and saved only in such event, free of all cost and expense to Grantors; it being expressly understood in this connection that said Yount-Lee Oil Company shall be under no obligations to Grantors to drill upon or develop said lands, or any part thereof, for oil and/or gas except to drill such off-set wells as a reasonably prudent operator would drill to protect said lands from drainage, but said Yount-Lee Oil Company shall not, so far as Grantors are concerned, be required to off-set any well unless such well is within one hundred and fifty (150) feet of the boundary line of said property and producing oil in paying quantities. In no event, so far as grantors are concerned, shall said Yount-Lee Oil Company be required to off-set wells drilled by it on any of said lands or to drill an off-set well on any land where the title is in dispute. It is further understood that said Yount-Lee Oil Company shall be under no obligations by reason of the contingent oil payments herein provided, to keep any of said leases in force but said Yount-Lee Oil Company agrees to reassign by the payment of rentals or drilling operations, fifteen (15) days before the maturity date of such rentals or drilling operations; said above consideration to be pro-rated between Grantors on the following basis:
"J. E. Farrell — 50% (Fifty per cent)
"W. S. Noble — 18 3/4% (Eighteen three-fourths per cent)
"W. A. Moncrief — 12 1/2% (Twelve and one-half per cent)
"E. A. Showers — 12 1/2% (Twelve and one-half per cent)
"R. S. Baker — 6 1/4% (Six and one-fourth per cent). * * *
"In the event the acreage covered by this assignment does not amount to as much as two thousand three hundred and fifty (2,350) acres of land as measured on the ground, or on account of failure of title to any of said land or invalidity of any of said leases said acreage is reduced below two thousand three hundred fifty (2,350) acres, then said Yount-Lee Oil Company shall be entitled to a refund for each acre necessary to make up said two thousand three hundred fifty (2,350) acres on the basis of Five Hundred Twenty 83/100 ($520.83) Dollars in cash per acre and a reduction (or refund) of Eight Hundred Thirty-Three 33/100 ($833.33) dollars per acre from the consideration to be paid out of oil; and the fact that said Yount-Lee Oil Company may have knowledge, at the time of the acceptance of this assignment, of the defects in title causing such shortage shall not relieve Grantors of their obligation hereunder.
"In the event of adverse claims, by suit or otherwise, involving the validity of any of the leases herein assigned or the title to any of the land covered by same, which, if sustained, would reduce said acreage below two thousand three hundred fifty (2,350) acres, then said Yount-Lee Oil Company shall be entitled *Page 959 to withhold from the payment provided for in subdivision `b' above, the sum of Five Hundred Twenty 83/100 ($520.83) Dollars in cash per acre, for each acre so involved, and the sum of Eight Hundred Thirty-Three 33/100 ($833.33) Dollars per acre, for each acre so involved, from the oil payment provided for in subdivision `c' above, until Grantors remove the cloud on the title to such acreage created by said claims or suits."
On the fourth day after the judgment in the divorce suit was rendered, Mrs. Stella B. Farrell married Albert B. Burguieres, and on November 2, 1931, she and her said husband executed a written agreement, which was duly acknowledged by them according to statutory requirements, reciting the execution of the Yount-Lee assignment contract, of date March 11, 1931, and John E. Farrell's interest therein as stipulated; also the execution of the property settlement agreement made by them on the day the divorce suit was instituted, the rendition of the judgment thereon, with specific ratification of that judgment and all those documents, and concluding as follows:
"Now, therefore, I, Stella B. Burguieres (formerly Stella B. Farrell) joined herein pro forma by my husband, Albert Burguieres, of New Orleans, Louisiana, in consideration of the premises and of the sum of Ten ($10.00) Dollars to me in hand paid by John E. Farrell, and other good and valuable considerations, the receipt of which is hereby acknowledged, do hereby convey, transfer, assign and release unto the said John E. Farrell all of my right, title and interest (including my community interest as the former wife of the said John E. Farrell) in and to all amounts heretofore paid or hereafter to be paid by said Yount-Lee Oil Company under the terms and provisions of the above mentioned assignment from John E. Farrell et al. to said Yount-Lee Oil Company, of date March 11, 1931; and I hereby fully release said Yount-Lee Oil Company from any obligation to account to me for any amount due or to become due (whether payable in cash or out of the proceeds from oil) under the terms and provisions of the above assignment from the said John E. Farrell et al. to said Yount-Lee Oil Company. I further hereby convey, release and quit-claim unto the said John E. Farrell any and all rights, claims and demands, of whatever nature, to which I may be entitled in, under or in any way connected with said assignment of date March 11, 1931, above mentioned.
"And for the consideration above mentioned, I do hereby ratify and confirm all of the provisions of the above-mentioned contract and agreement made and entered into between me and the said John E. Farrell on July 8, 1931, under the terms of which I conveyed to the said John E. Farrell all of my right, title and interest in and to all property, real, personal, and mixed, belonging to the community estate of the said John E. Farrell and myself.
"Executed at New Orleans, Louisiana, this the 2nd day of November, A.D.1931.
"[Signed] Stella B. Burguieres
"Albert L. Burguieres."
Prior to the execution of that instrument, Mrs. Stella B. Burguieres had executed an instrument, of date October 20, 1931, in practically the same terms, but she executed it in her own name without the joinder of her husband and the foregoing instrument was executed to cure that defect. Both of those instruments were executed at the request of the Yount-Lee Oil Company to avoid any possibility of a subsequent claim by Mrs. Burguieres of an interest in the lease. In other words, in order to make sure of its title; and at that time the Yount-Lee Oil Company demanded the execution of that instrument before making any further payments on the lease. Mrs. Stella Burguieres and her husband also executed and delivered to John E. Farrell two quitclaim deeds to the property in Fort Worth which was formerly the homestead of John E. Farrell and Stella B. Farrell, those instruments reciting that they were executed in fulfillment of Mrs. Farrell's obligation to execute the same as stipulated in the property settlement agreement. The first of those quitclaim deeds was executed on August 20, 1931, and signed "Stella B. Farrell" instead of her married name, and acknowledged by plaintiff as a feme sole. The second of those quitclaim deeds was dated November 24, 1931, and was executed by Mrs. Stella B. Burguieres and her husband, Albert L. Burguieres, and duly acknowledged in accordance with statutory requirements.
On the 5th day of July, 1933, Mrs. Stella B. Burguieres, without the joinder of her husband and with permission of the *Page 960 court, instituted this suit against John E. Farrell and the Yount-Lee Oil Company to set aside that judgment divesting her of her rights in the community estate belonging to herself and her former husband, upon allegations that the only evidence upon which that judgment was rendered was the written agreement of the parties to the suit, and that she was induced to enter into that agreement by fraudulent misrepresentations made to her by John E. Farrell with respect to her interest in the community estate; and, as shown by allegations in her petition and evidence offered on the trial of the suit, the chief purpose of her suit was to recover an undivided one-half interest in the contract of assignment to the Yount-Lee Oil Company and the proceeds already accrued and to accrue therefrom; and to that end the Yount-Lee Oil Company was made a party defendant along with John E. Farrell. In plaintiff's petition she further sought to set aside the other instruments in writing, noted above, purporting to ratify the judgment and the property settlement agreement upon which it was rendered, on allegations that she was induced to enter into the same by reason of the misrepresentations which induced her to execute the property settlement agreement in the first instance, with further allegations that she did not discover the fraud which she alleged had been practiced upon her until June, 1933; and that her failure to make such discovery sooner was due to no negligence on her part. Those ratification agreements and the collection of the monthly installments paid to Mrs. Burguieres by defendant Farrell in accordance with the requirements of the judgment and other transactions by plaintiff, hereinafter noted, were all pleaded by defendant as constituting estoppels.
At the conclusion of the evidence, the court instructed the jury to return a verdict in favor of the defendants, which was done, and from the judgment rendered in accordance with that verdict plaintiff has prosecuted this appeal; and complaint of that ruling of the court is the principal assignment of error presented here.
According to the well-established rule in this state, in order to sustain that action by the trial judge, all material evidence relied on by the plaintiff must be accepted as true, to the exclusion of all evidence of a contrary effect, and the court must then be able to say that even though such evidence be given full faith and credit, it fails to make out a prima facie case in favor of the plaintiff. Stevens v. Karr, 119 Tex. 479, 33 S.W.2d 725.
It is also a well-settled rule that admissions against interest made by a party to a suit while testifying as a witness in the trial of the case are conclusive and binding upon him. 17 Tex.Jur. p. 577, and authorities there cited.
The following testimony given by plaintiff on the trial of the case is the only testimony cited in appellant's brief to support her allegation of fraudulent misrepresentations on the part of defendant Farrell which induced her to execute the property settlement agreement referred to above:
"A. Mr. Farrell brought Mr. Zweifel into the room. They made all the arrangements for the divorce, for the settlement, and everything that was arranged for, they took care of it. At one time I asked Mr. Farrell for my attorney. I said `You have brought Mr. Zweifel in here. Can't I have an attorney?' He informed me that he wasn't going to separate the property.
"Q. Wasn't going to do what? A. Wasn't going to separate the property. And that if I called a bunch of attorneys in there, by the time they got through with it, there wouldn't be anything left for anybody. * * *
"A. Mr. Farrell said that an equal, or a fair amount to give me would be $500 a month.
"Q. For how long? A. Until I should remarry. But, due to his generosity and his fairness, he was going to make it $750 a month. He told me that there were lawsuits and debts against the property; that after they were settled, there would be practically nothing left. He told me I could take what he would give me or I could take nothing. And it is hard to remember just exactly what he said, or what was said.
"Q. Was anything said about the nature and extent of the properties? A. Nothing, no.
"Q. Now, was there anything said about the Yount-Lee oil payment? A. Nothing was said about that, no. * * *
"A. There was only one particular piece that I remember, that was really mentioned *Page 961 at that time, and that was the Gregg County.
"Q. What was said about the Gregg County? A. Well, that was the largest holdings, I think, and Mr. Farrell mentioned and told me that after the debts and lawsuits were filed, and, I mean, settled, there would be practically nothing left, and very little left of the Gregg County. Now, at that time that is the only particular property that he mentioned, that I remember he mentioned at all."
It thus appears that the only representation by defendant Farrell to plaintiff which she alleged induced her to execute the settlement agreement and — as alleged in her pleadings — other instruments ratifying it was to the effect that there were then outstanding debts and litigation against the community estate which probably would lessen its value and by reason of which his contract to pay her $750 per month for the remainder of her life would be of greater value to her than her half of the community estate at that time. It was proven by uncontradicted testimony of several disinterested witnesses that at that time many suits had been instituted against Farrell and his associates to recover title to 760.6 acres of the leases conveyed to the Yount-Lee Company, and which were then pending. The property conveyed to that company was described as 2,679.36 acres, but when surveyed out proved to be only 2,559.3 acres, a shortage of 120.6 that had already been lost by the grantors, and the evidence showed that the Yount-Lee Company had not then had its attorney to examine abstracts of title covering 548.83 acres. So then, the representation made to plaintiff by Farrell that such claims and litigation were then outstanding was true, thus leaving the representation as to the probable outcome of such claims and litigation the only question in dispute.
Authorities are cited by appellee to support the contention that such a representation would not furnish a basis for rescission of the settlement agreement in the first instance, since, manifestly, the same was a mere opinion, speculative in character, and must necessarily have been so understood by plaintiff at the time; such as Putman v. Bromwell,73 Tex. 465, 11 S.W. 491; Schilder v. Fort Worth National Company (Tex.Civ.App.) 81 S.W.2d 247 (writ refused), and authorities there cited.
But appellant has cited Ralls v. Ralls (Tex.Civ.App.) 256 S.W. 688; McMurray v. McMurray, 67 Tex. 665, 4 S.W. 357; Kuehn v. Kuehn (Tex.Civ.App.) 232 S.W. 918, to support the contention that in view of the fiduciary relations then existing between the husband and wife, she had the right in equity to rely on that representation as a statement of fact, even though it involved an opinion only as to the outcome of future events. See, also, on this point, 7 Tex.Jur. § 18, page 980. In reply to that contention appellee argues that any former fiduciary relations between the parties were terminated by the action then taken by appellant to sue for a divorce and for a division of the community property, and by reason of the acts of the defendant which plaintiff testified caused her to cease to be on speaking terms with him before she brought the suit.
We do not believe a determination of that question important here, in view of our conclusions hereinafter stated.
Plaintiff testified that immediately after the decree of divorce was entered, she left Fort Worth for New Orleans, and on the fourth day after departure she married her present husband, Albert L. Burguieres. The record shows that on the last day for the filing of a motion for new trial in the divorce case, the defendant filed such a motion, one of the grounds for which was, in substance, that plaintiff had procured the divorce for the purpose of marrying another man with whom she had been keeping company. At that time the defendant did not know that she had already married. As soon as plaintiff learned of that motion for new trial, she immediately returned to Fort Worth, where defendant met her at her request, and in that meeting she endeavored to dissuade him from prosecuting the motion and promised that if he would withdraw it and leave her alone for six months, she would return to Fort Worth and remarry him; telling the defendant at the same time that she had not then married. Thereafter, the defendant abandoned his motion for new trial and the same was overruled by operation of law.
After the judgment of divorce, the defendant failed for a few months to make the payments of $750 per month, stipulated in the judgment, and the same were furnished by the trustee bank holding the collateral that had been deposited to *Page 962 secure the same. Upon plaintiff's complaint of such failure, the defendant, through his attorney, had a conference with her in Dallas and in accordance with an agreement then entered into, defendant repaid to the trustee bank the amount of advancements that had theretofore been made by it, leaving the collateral security held by the bank intact as security for all future installments, and that arrangement was accepted by the plaintiff as satisfactory. The facts just related were relied upon by the defendant as a further ratification of the property settlement and the judgment of the court in accordance therewith.
Plaintiff further testified to the following facts:
During the time she and defendant had lived together, he had engaged in the oil business in several different places and she was thoroughly informed of all of his activities with an intimate knowledge of the leases he acquired and their operation; and the lease which was sold to the Yount-Lee Oil Company was purchased by defendant and his associates with her knowledge and her express approval. Defendant had failed in business three times, and the lease sold to the Yount-Lee Oil Company and defendant's interest in that sale represented practically everything of value defendant owned when the divorce suit was instituted. After defendant and his associates had acquired that lease, the Arkansas Fuel Oil Company entered into a contract to buy it for a consideration of $3,500,000, but that contract was never consummated. Prior to the execution of the settlement agreement between her and the defendant, the defendant told her that he and his associates had entered into a contract to sell the lease to the Yount-Lee Oil Company and that he would get one-half of the proceeds of the sale for his interest. During their marriage plaintiff and defendant had frequent quarrels, during which the subject of divorce had been discussed, and for four days preceding institution of the divorce suit they had not been on speaking terms. In answer to an inquiry over the telephone by defendant if she still wanted a divorce, she met him and Mr. Zweifel, whom the defendant then employed as her attorney, and with her consent to institute for her the suit for divorce and for the recovery of her one-half interest in the community estate, and defendant thereafter paid Mr. Zweifel $7,500 for his services in that suit. When Mr. Zweifel was employed and at a conference between him and plaintiff and defendant relative to a settlement of property rights, and before the settlement agreement was executed, defendant first proposed the payment to her of $500 per month during her widowhood in full settlement of her property rights. Mr. Zweifel countered with the proposal that defendant pay plaintiff $750 per month during her life, with collateral security in the way of a $40,000 trust fund to be deposited with some trustee bank. The defendant and plaintiff both assented to that suggestion and the settlement agreement was then drawn up by Mr. Zweifel and executed by both parties. Mr. Zweifel then filed the suit for divorce for and in behalf of plaintiff and for a settlement of her property rights in the community estate in accordance with the written agreement already executed, and the petition included a prayer for the issuance of a temporary writ of injunction to restrain the defendant from disposing of any of the community property during the pendency of the suit. Thereafter Mr. Zweifel continued to act as her attorney and appeared for her when the divorce case was tried in defendant's absence, and, by advice and counsel, aided her in procuring the judgment that was rendered. Later Mr. Zweifel was employed by her as her attorney to advise her relative to the subsequent ratification agreements which were fully explained to her by him before she executed them, and he dealt fairly with her in all matters concerning which he had advised her, and before the divorce suit was tried he explained to her that she was entitled to a half interest in the community property and also her homestead rights in the home which she quitclaimed to defendant after the divorce decree. The evidence showed plaintiff then had a life expectancy of at least forty years.
Hon. Hal S. Lattimore, the trial judge who tried the divorce case, testified as a witness in this case that after hearing plaintiff's testimony which she reluctantly gave in support of her alleged grounds for a divorce, he then said to plaintiff: "I understand you have made a property settlement." To which plaintiff replied: "Yes." He then said to plaintiff: "I think you are both making a mistake, to make such an agreement as that. It is *Page 963 going to make you both unhappy, and I think you ought to just divide your property so you won't have any occasion to communicate with each other any more; but if that is. * * *" To which the witness replied: "Well, that is the way I want it." The court then said: "Well, if that is the way you want it, and you are satisfied with it, I will approve it."
That testimony was not denied by plaintiff while on the witness stand, and she virtually admitted it to be true.
The evidence showed that Ligon Co., professional accountants, prepared monthly audits of defendant's assets and accounts, and plaintiff testified that in June, 1933, she received a letter from that firm showing the income tax chargeable to her by reason of her interest in the Yount-Lee deal, and that by reason of that information she became dissatisfied with the property settlement theretofore made with defendant and at once called Mr. Zweifel over the telephone to come to New Orleans, where, after consultation with him, she instructed him to institute this suit and verified the original petition prepared by Mr. Zweifel.
Mrs. Grace (Owens) McEntire, defendant's secretary, testified that defendant had on file in his office copies of the Yount-Lee contract and of the financial statements prepared by Ligon Co., all of which she would have gladly shown plaintiff at any time, and according to the testimony of defendant, which was fully corroborated by C. F. Corzelius, a disinterested witness, during the pendency of the divorce suit Mr. Zweifel came to defendant's office, and in response to his inquiry therefor, he was furnished with a copy of the Yount-Lee contract and also a copy of an audit by Ligon Co., showing a full statement of all Farrell's assets and accounts, which he (Zweifel) took with him, expressing his desire to be fully informed as to plaintiff's property rights before trial of the divorce suit. And since no testimony was introduced from any source to contradict that testimony and no excuse offered by plaintiff for failure to introduce Mr. Zweifel, who had theretofore withdrawn from the case, to refute that testimony, the trial court was authorized to accept it as true and to find that plaintiff was bound by the knowledge so acquired by her former attorney, Mr. Zweifel. Hexter v. Pratt (Tex.Com.App.) 10 S.W.2d 692; Fordtran v. Cunningham (Tex.Civ.App.) 141 S.W. 562; Newton v. Easterwood (Tex.Civ.App.)154 S.W. 646.
Appellant cites several decisions reversing decrees in divorce cases, divesting one of the spouses of title to real estate — all because such action was expressly prohibited by article 4638 of our Revised Civil Statutes. Among cases cited are: Reasonover v. Reasonover (Tex.Civ.App.) 59 S.W.2d 887; Aucutt v. Aucutt (Tex.Civ.App.) 63 S.W.2d 755; Phillips v. Phillips (Tex.Civ.App.) 203 S.W. 77; Cunningham v. Cunningham, 120 Tex. 491, 40 S.W.2d 46, 75 A. L. R. 1305.
But as indicated by the very terms of that statute, the same is not applicable to a judgment of that character when the same is consented to by the spouse against whom it is rendered. It is plain, therefore, that those authorities have no application here, since the judgment rendered divesting plaintiff of her interest in the community estate was with her express consent in writing for a valuable consideration and thereafter expressly ratified.
We quote the following from the opinion of Justice Critz — then on the Commission of Appeals, now Justice of the Supreme Court — in Smith v. Ferrell, 44 S.W.2d 962, 966:
"It has been well said that in ordinary cases the trial judge has a certain amount of discretion in granting new trials during the term. However, no such discretion can be exercised after the expiration of the term. The judgment then becomes a vested right which can only be divested by a direct proceeding filed for that purpose, and, when such a proceeding is resorted to, the person presenting the bill must bring himself strictly within the rules of law providing for relief in such cases. It is not enough that he plead and prove that he had a meritorious defense in the first instance, but he must go further and show that he was then free from negligence. In such case he is charged, as a matter of law, not only with what he knew during the term, but what he might have known had he used reasonable diligence. Goss v. McClaren, supra [17 Tex. 107, 67 Am.Dec. 646]. * * *
"We are always reluctant to reverse a case on the facts, but the security of government depends on the sanctity of *Page 964 judgments, and their enforcement according to the well-established rules of law."
The rule there stated is universal and has been announced in numerous cases that might be cited, such as McCauley v. Northern Texas Traction Co. (Tex.Civ.App.) 21 S.W.2d 309; Johnson v. Templeton, 60 Tex. 238. We quote further from 25 Tex.Jur. p. 389: "Just as any other judgment, a consent judgment is conclusive as to the matters adjudicated, and is not subject to collateral attack except on jurisdictional grounds. `A final judgment on the merits is just as conclusive on the merits if entered by consent as if rendered after contest.'"
And also from page 391: "The fact that a party consented to a judgment does not, in some circumstances, prevent him from having it vacated or set aside. But when a party seeks in equity to set aside a judgment rendered by consent against him in a court of law, it should appear, as is ordinarily the rule, that it would be against conscience to permit the judgment to be executed and that the injured party has been prevented by fraud or accident, unmixed with any fault or negligence in himself or his agent, from making the proper defense." See, also, Hartford Fire Ins. Co. v. King, 31 Tex. Civ. App. 636, 73 S.W. 71; Gulf Production Co. v. Palmer (Tex.Civ.App.) 230 S.W. 1017; Williams v. Nolan, 58 Tex. 708.
And that rule was followed in suits by wives to set aside judgments rendered in divorce cases.
In briefs for appellant counsel have not pointed out any testimony by her that by reason of the alleged misrepresentations of the defendant she was induced to execute either the original settlement agreement or any of the subsequent ratification instruments and to take no steps to set aside the judgment until June, 1933, approximately a year and ten months after the date of the judgment. 20 Tex.Jur. § 29, p. 51.
Nor did she introduce any testimony to show that by the exercise of ordinary diligence she could not have discovered the falsity of the representations so made by the defendant during that time.
It is a familiar rule that in a suit founded on fraud and deceit, the wrongdoer will not be heard to say in his defense that plaintiff "might have known the truth by proper inquiry." Labbe v. Corbett, 69 Tex. 503,6 S.W. 808, 811; Buchanan v. Burnett, 102 Tex. 492, 119 S.W. 1141, 132 Am. St. Rep. 900.
But in a suit in equity to set aside a judgment based on a written agreement of the parties, plaintiff has the burden not only to show valid reasons for setting aside that contract and thereby establishing a meritorious defense to the judgment rendered, but he must go further and show that his failure to urge that defense at the trial or by motion for new trial, or by appeal if the same was there available, was due to no negligence on his part. See authorities, supra.
Even though the question whether or not the settlement agreement between plaintiff and her former husband represented a fair division of the community estate might have been an issue for determination by the jury, yet, since the facts cited above conclusively showed a failure by plaintiff to establish other necessary grounds for setting aside the judgment, the trial court did not err in instructing a verdict for the defendant. In addition to authorities cited above, see, also, Smith v. Ferrell (Tex.Com.App.) 44 S.W.2d 962; Snow v. Cook (Tex.Civ.App.)278 S.W. 520 (writ dismissed); Saunders v. Saunders (Tex.Civ.App.)293 S.W. 899; Wagley v. Wagley (Tex.Civ.App.) 230 S.W. 493; Sperry v. Sperry (Tex.Civ.App.) 103 S.W. 419; Harn v. Phelps, 65 Tex. 592, and authorities cited in that opinion; Moore v. Moore (Tex.Civ.App.)259 S.W. 322. The following decisions, among others relied upon by appellant in support of her appeal, we believe are distinguishable from the present suit on the facts. Rains v. Wheeler, 76 Tex. 390, 13 S.W. 324, involved a contract made between a husband and wife during their separation, but which agreement was never carried into a judgment. The same was true of settlement agreements involved in Kuehn v. Kuehn (Tex.Civ.App.) 232 S.W. 918, Link v. Link (Tex.Civ.App.) 63 S.W.2d 1045, and Cox v. Mailander (Tex.Civ.App.) 178 S.W. 1012.
In Ralls v. Ralls (Tex.Civ.App.) 256 S.W. 688, 695, most strongly stressed, Mrs. Rails, plaintiff, sought to set aside a decree settling her property rights in the community estate of herself and husband which was entered as a part of the judgment granting her a divorce. The judgment was based upon a written agreement of the parties to the divorce suit, and at *Page 965 the conclusion of the evidence the trial court instructed a verdict against plaintiff. In the opinion the agreement upon which the judgment was rendered is set out, together with the testimony of the facts leading up to its execution by Mrs. Ralls. In that case the opinion of Judge Stayton in McMurray v. McMurray, 67 Tex. 665, 4 S.W. 357, was cited, and in which it was held that a wife would have the right to set aside a decree of court entered in a divorce proceeding which did not award her a fair division of the community estate, upon allegations and proof of a fraudulent concealment by the husband of its extent and value followed by perjured testimony given by him on the trial of the case, if the wife was ignorant of the true facts during the trial and was prevented by fraud from presenting her defense at the time of the trial. Following a reference to what was said by Judge Stayton in that case, Judge Boyce, in the Ralls Case, used this language: "So in this case, the fraud, if there was any, prevented the wife from having a real trial of her rights. The agreement itself contemplated a mock trial, and the use of the judgment of the court to consummate the fraud. The fraud was upon the court as well as the wife."
The testimony recited in the case amply supported that conclusion, and clearly distinguishes that decision from the suit at bar.
It would be an unnecessary and fruitless undertaking to discuss the facts involved in numerous other decisions cited by the appellant, since we are convinced that all of them recognized the general principles announced in the authorities above quoted as to what is necessary to be proven in a suit in equity to set aside a judgment rendered at a former term of court, but that the facts developed in those cases were sufficient to meet that test.
Error is assigned to the refusal of the court to permit the introduction of the community income tax return filed by the defendant Farrell, purporting to show plaintiff's interest in the community property to be $304,951, net worth of her one-half interest in the community estate as of date July 31, 1931, and the present worth of the annuity received by her as the result of the divorce judgment to be $187,805 — a loss of $117,146. That evidence was offered on the theory of admission by the defendant against interest. Complaint is also made of the refusal of the court to allow counsel for appellant to cross-examine witnesses who had testified to various lawsuits pending as to what was the final outcome of those suits, and also as to what certain properties were actually sold for at a later date.
Those assignments are overruled since the facts excluded would have no material bearing upon the conclusions we have reached as shown above.
And we deem it proper to add that the record here includes a statement of facts in nine volumes covering more than 3,200 pages, making it impossible to do more than note the facts which are of controlling effect in the disposition of this appeal and which were conclusively established on the trial of the case.
Accordingly, the judgment of the trial court is affirmed, Mr. Justice LATTIMORE and Mr. Justice BROWN concurring per their separate opinions filed.