Appellant brought a suit in equity against the Yount-Lee Oil Company and John E. Farrell to set aside a solemn judgment of a court of competent jurisdiction, which judgment she had procured of her own volition, and which she and her present husband expressly ratified by several instruments in writing, and which judgment she, through concealment and deceit, prevented appellee from attempting, by a motion for a new trial, timely filed, to set aside.
It is interesting to note that in her divorce action, with the exception of the prayer for a dissolution of the marriage contract, appellant prayed for the same relief, as to the disposition of the community estate, which she prays for in her bill of review.
Rights, with respect to bills of review, have been established by courts of equity for and in behalf of defendants in judgment, but these rights have been extended to plaintiffs in judgment, under proper allegations, supported by competent evidence.
If it be true, that a defendant in judgment is bound by strict and exacting rules, governing his pleadings and proof, under which he must bring himself, before relief will be granted, it follows that a plaintiff in judgment must be no less bound. *Page 966
This writer is of the opinion that, where a plaintiff in judgment, who has voluntarily invoked the jurisdiction of a court having authority to render judgment for him, and who insists upon the judgment that was rendered, and who, by deceitful promises and concealment of material facts, prevents the defendant in judgment from pressing a motion for a rehearing, timely filed, until the defendant's right to a hearing on such motion is lost — the concealment being of a new status and newly acquired right which would be destroyed and lost, by the granting of a new trial — and who has expressly ratified the judgment he procured by instruments in writing and voluntary acts, such a plaintiff in judgment should be held to a stricter showing of the right to set aside any part of the judgment procured by him than is required of defendants in judgment, or plaintiffs in judgment, where no such facts are conclusively established.
But applying only the ordinary rules governing bills of review to the case at bar, appellant does not show that she is entitled to the relief she seeks.
Let us review the uncontradicted evidence introduced before the trial court, and the record before us, as made.
In her petition for a divorce and for a division of the community estate, she expressly alleged that because of the cruel and inhuman treatment visited upon her by appellee (the defendant) she was compelled to abandon him on March 1, 1931, four months and seven days before she filed her suit; and she expressly prayed that the trial court order appellee to file an inventory and appraisement of the community estate, and for a division thereof, on a final hearing.
In her original bill of review, to which she personally made oath, filed by her on July 5, 1933, she expressly alleged that she and appellee lived together as husband and wife until March 1, 1931; while in her amended pleading on which she went to trial she alleged that the marriage relation continued from the date of the marriage until July 7, 1931. This pleading was sworn to by one of her attorneys. We are warranted in concluding that her testimony, on the hearing of her divorce suit, established the fact that the intimate relation of husband and wife never existed, after March 1, 1931. That was a very material allegation in her petition, and the court found in the judgment that all of her material allegations had been established.
In her original bill of review, signed and sworn to by her, in an attempt to show diligence, she avers that she "did not actually learn of the true situation until she had occasion to return to Texas during the early part of the year 1933."
In her amended petition, verified by her counsel, she avers that she and appellee lived together as husband and wife until July 7, 1931, and that "she remained unaware of the frauds which had been practiced upon her and of the frauds which were continuing to be practiced upon her until June of 1933."
In her original bill of review she avers that appellee was a man of wide business experience, while she was inexperienced in business matters, and that she was not on a fair level with him when she made the settlement agreement she now seeks to cancel. She also avers that appellee "had previously represented and did at the time represent to the plaintiff that said community estate consisted principally of choses in action of uncertain and speculative value, and that the income therefrom would not exceed the sum of twenty or twenty-five thousands of dollars per year; that it was probable that only a small part of the amount which was payable out of oil under the terms of the contract with the defendant Yount-Lee Oil Company, as aforesaid, would actually be recoverable and paid; and also represented that their community estate was heavily indebted, and that practically all of the cash realized from the sale to the defendant Yount-Lee Oil Company had been applied and would have to be applied to such indebtedness, and that even the sum of $500.00 per month would be a fair and adequate compensation to her for her half interest in the community estate, and that it was only through the generosity and desire to deal fairly and equitably with her that said Farrell would agree to pay her the sum of $750.00 per month."
She further averred that "she was induced by his persuasive arguments to the effect that he was and would always deal with her fairly and see that she received the equal of one-half of the community estate, to enter into the agreement."
She averred that she relied on the matters alleged and executed the contract under such circumstances. She introduced in evidence her original petition which was *Page 967 verified by her and for which she stands sponsor.
She alleged in her amended petition that because of her grief for her little son, who was accidently killed, she was mentally distracted and incapable of appreciating the value of the community estate, or what would amount to a fair division thereof, and that appellee procured her to enter into the settlement contract while she was in such condition.
She alleged that appellee inquired of her, on the morning of July 7, 1931, whether she wished a divorce, and without waiting for her reply took steps to employ Henry Zweifel, a practicing attorney of Fort Worth, to attend to the matter of procuring the divorce and preparing all necessary papers and documents in connection therewith; that she knew Zweifel only by sight, and that appellee brought him to the home on the morning of July 8, 1931, and that appellee proceeded to state to her that Zweifel would attend to the divorce proceedings and prepare all necessary agreements between them; that at such time appellee was her husband and partner in the community and owed her the duty to deal fairly with her and to make known to her all pertinent facts concerning the extent and value of the community estate, and that she believed and trusted in her said husband.
Her allegations, which she contends amount to fraudulent misrepresentations, are: "(a) That the $1,000,000.00 oil payment provided for under terms of the Yount-Lee Oil Company contract would finally yield a small revenue, and also that said $1,000,000.00 oil payment was so incumbered by litigation that there would be little or nothing left of same. (b) That the community estate of the plaintiff and himself was heavily indebted and that practically all of the cash realized from the Yount-Lee sale had been applied and would have to be applied on the community indebtedness. (c) That the sum of even $500.00 per month would be a fair, equal and adequate compensation to her for her one-half interest in the community estate. (d) That unless the plaintiff took what he offered her and what he was willing to give her, she would receive nothing at all."
She further alleged that appellee concealed from her the facts concerning the value and extent of the community estate, and of their net income for the year 1931. She alleged that the settlement made by her is inequitable and unjust, in that it did not and does not purport to give her the equal one-half interest in the community estate to which she is entitled; and that the obligation upon the part of appellee to pay her $750 per month, so long as she lives, is speculative and uncertain and depends on the continued solvency of appellee, and his willingness to pay same, except as to the $40,000 trust or guarantee fund which was placed with the bank to guarantee faithful performance by appellee.
She alleged that she had ratified the settlement agreement and the judgment she had obtained by a number of instruments in writing, but alleged that she did not know the true facts concerning the value and extent of the community estate, when she executed such instruments. She prayed for a cancellation of the judgment she obtained in the district court, in so far as it deals with her property rights, and a cancellation of the settlement agreement and of all instruments executed by her under the contract and judgment and in ratification thereof.
Having made Yount-Lee Oil Company a party defendant, she prays for judgment against appellee and said oil company for "an undivided one-half interest in and to that certain $1,000,000.00 oil payment, which is an interest in the land described in the conveyance which created same * * * that plaintiff recover judgment as against both defendants, canceling and declaring null and void that certain settlement agreement of July 8, 1931, and all subsequent contracts, including the release and quit-claim executed in favor of the defendant Farrell and Yount-Lee Oil Company, in connection with the oil payment. Plaintiff further prays that the judgment of the court entered in cause No. 91,070 be vacated and set aside in so far as it makes any orders with reference to the community estate of the plaintiff and the defendant Farrell, and in so far as it deals with said community estate and disposes of same, and that judgment herein be entered providing for an equitable participation (partition?) of the community estate between the plaintiff and the defendant Farrell. * * * Plaintiff further prays that she recover of both defendants an equal one-half part of the $1,000,000.00 oil payment which the defendant Yount-Lee *Page 968 Oil Company has agreed to pay." She made other allegations in the amended petition not necessary to be noticed.
Appellee answered denying appellant's averments, and alleged definite knowledge upon appellant's part of all the deals and transactions had during their married life; that early in March, 1931, following the death of their little son, appellant began, as she had done in the past, to threaten to leave him and to vex and annoy and mistreat him for the purpose of making his life so unhappy and unpleasant as to induce him not to resist her efforts to obtain a divorce, although he had been guilty of no conduct giving rise to her desire for a divorce; that on the morning of July 7, 1931, appellant announced to him that she had definitely determined to seek a divorce; that, seeing she was determined to leave him, he obtained Henry Zweifel to act as attorney for her, and that she and her attorney, being fully advised in the premises, made the contract of settlement of which she complains, filed suit for the divorce, secured a waiver of service of process from appellee, and on August 8, 1931, thirty days after filing such suit, appellant obtained the judgment awarding her a divorce and settling her property rights in accordance with the contract and agreement; that during the times mentioned appellant and her attorney Zweifel had a copy of the Yount-Lee Oil Company contract, which is dated March 11, 1931. That immediately upon filing her suit for divorce appellant left Fort Worth and went to the city of New Orleans, and there associated with her present husband, which fact she kept secret from appellee, and that prior to the day on which she obtained her divorce decree, she had agreed to marry her present husband, and did in fact marry him four days after the decree was obtained by her on August 8, 1931; that appellee learned she was associating intimately with some man in New Orleans, and on August 18, 1931, appellee filed a motion to set aside the divorce decree and judgment theretofore obtained by appellant; whereupon appellant returned to Fort Worth, sought to induce appellee to withdraw his motion for a new trial, denied she was associating with any other man, promised to come back to appellee at the end of six months and remarry him, although at such time she was secretly married to her present husband; that appellee withdrew his motion for a new trial, because of her statements and promises, and permitted the divorce decree to become final. That in October, 1931, Yount-Lee Oil Company demanded of appellee that he obtain a release and ratification from appellant and her present husband; that they executed and delivered such instrument, which set forth all the terms of the sale by appellee and his associates to said oil company, in November, 1931; that likewise a quitclaim deed to the homestead property was executed by them in February, 1932; that appellant has fully ratified the contract and settlement agreement made by her, and the judgment obtained by her; that if she was not possessed of full knowledge of the facts concerning the extent and value of the community estate, she and her attorney were guilty of negligence in failing to secure the facts as they could have done; that when the settlement was entered into his business was of such a speculative, uncertain nature as to render its value incapable of definite ascertainment; and appellant elected and chose to settle her rights on the basis of $750 per month to be paid to her so long as she lives.
Appellee pleaded laches, waiver, ratification, and estoppel.
Appellant answering appellee's pleading, averred that appellee "in the handling of his properties was always reticent and seclusive, giving plaintiff little or no information concerning same"; that every effort on her part to learn the truth concerning their properties has been met by the appellee with design and well-studied attempts to cover up and hide same from appellant; that she is still ignorant of the nature and extent of the properties, and after diligent effort and search upon her part, she has incomplete and uncertain information as to the nature and extent of the same.
She alleged that "prior to the morning of July 7, 1931, in question, this plaintiff would show that she and the defendant had gone for weeks at a time without speaking to each other, and on July 7, 1931, the defendant asked the plaintiff if she was going to `get that divorce' and upon her failure to reply, the defendant left the house and shortly thereafter called the plaintiff over the telephone and told her that he had procured the services of one Henry Zweifel to obtain the divorce"; that she had made no request for an *Page 969 attorney; that Zweifel was not her representative, but was appellee's; and that appellee selected the attorney and paid him a large fee. She further alleged that she learned of the facts concerning the value of the community estate on June 8, 1933, and signed the original petition in this cause on June 10th thereafter; she alleged that appellee "worshipped the almighty dollar" and was exacting and quarrelsome concerning what she spent, and furnished her only small sums with which to purchase necessaries; that appellee sought to make her life miserable for the purpose of forcing a separation; that appellee frequently asked her to get her divorce, but she ignored his requests and upon his insistence she agreed to do so; and that "after she was so kicked out she had no place to go."
At no time did appellant allege that she ever had any love for appellee, but alleged that appellee had no love for her.
In her original bill of review, appellant specifically prayed for judgment against appellee Yount-Lee Oil Company for her one-half of the $1,000,000 oil payment contracted to be paid under its purchase from Farrell and associates, asserting that she had demanded of such appellee payment and it had refused her demands, and prayed that the instrument, executed by her, releasing said appellee from liability as to such payment be canceled and held for naught.
In her amended petition she seeks the same relief, but in broader terms, by simply praying "that she recover of both defendants an equal one-half part of the $1,000,000.00 oil payment which the defendant Yount-Lee Oil Company has agreed to pay," and canceling the release she executed to both appellees.
Appellant has evidently searched the record of more than 3,250 pages to find the evidence and testimony introduced that is most favorable to her and which she asserts tends to support her allegation of fraud and overreaching. The following appears in her brief:
"Q. Now, Mrs. Burguieres, tell this jury now in your own way, just turn and talk to those gentlemen so these on the end back here can hear what you have to say about what was said by John Farrell about what he had and what you had. A. Mr. Farrell said that an equal, or a fair amount to give me would be $500.00 per month.
"Q. For how long? A. Until I should remarry. But due to his generosity and his fairness he was going to make it $750.00 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."
She testified that nothing was said about the nature or extent of the properties; nothing was said about the Yount-Lee Oil payments; that no particular lawsuits were mentioned; that she knew of one for $200,000 about which appellee had told her; that she knew appellee had sold the East Texas properties to Yount-Lee Oil Company for $3,000,000 and that she knew appellee owned one-half of the purchase price, and that the sale was made March 11, 1931; that she was in California when the sale was made and she did not know what appellee had been doing with his properties while she was there, except she knew he had bought some stocks.
Having already testified to the occasion and circumstances that arose just prior to the filing of her divorce suit, she had said that on the morning of July 7, 1931, she came down to breakfast and as she sat down to the table appellee asked her if she had made up her mind about a divorce; that she did not answer him but got up and went upstairs; that he called her over the telephone later and said: "Have you made up your mind about that divorce? If you have, I am in Henry Zweifel's office"; that she did not answer, but "hung up"; that in a few minutes she called him and said: "If you want the divorce, then it is all right with me"; that in a few minutes appellee and Zweifel came out. As an explanation of why she called back, she said: "Well, of all of the times he had asked me that, and of all the times he told me I could have a divorce, and that I could leave, if he wanted me to leave, and then, then — well, it was impossible to go any further. Well, he was just as unhappy as I was. He asked me again, and I said `Yes'. That's all." She said she did not know Zweifel, but had heard of him.
In further detailing what was said and done when she, appellee, and Zweifel were discussing the divorce suit, she said: "During the time we were discussing this *Page 970 settlement, why, Mr. Zweifel and Mr. Farrell were in the room; I asked for a trust fund to guarantee this $750.00 a month.
"Q. Now, just a minute right there. Tell this jury whether or not Mr. Zweifel asked for that, or did you do it? A. I believe I asked for it.
"Q. All right, what was said when you asked for it? A. Mr. Zweifel asked me about how much — I said `well, $25,000.00'. Mr. Zweifel said: `That is not enough. Let's make it fifty'. Mr. Farrell said he could not do it, he couldn't make it fifty. Then there was some argument about that and it was finally settled on $40,000.00. Mr. Zweifel asked if he would put up $40,000.00 cash. He said `no', he didn't have $40,000.00 cash; that he would put up $20,000.00 cash and the balance in Steel." Further she was asked:
"Q. Now, then, do you remember anything else that was said at the time, when you were trying to settle the property rights, do you remember anything more? A. Well, there was quite an argument up, although I agreed to it.
"Q. About what? A. About how long this $750.00 a month would be. Mr. Farrell said until I remarried; and Mr. Zweifel said no, that was not right, that it should be as long as I lived. I told Mr. Farrell I was willing to accept the $750.00 until I remarried. It was finally agreed that I should get it as long as I lived."
She then testified that there was a discussion about the automobiles and she asked for the $12,000 Cadillac and appellee gave it to her. She testified that nothing was said about her getting a lawyer to look at the papers. She had previously testified that during the conference with appellee and Zweifel "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. 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." She testified that she made no further statement or effort to get a lawyer, and testified that she told appellee she preferred that he get the divorce, but Zweifel said he would not handle it that way; that there might come a time when she would be sorry; and that he would not take the case unless she obtained the divorce.
It will be observed that appellant nowhere alleges that she demanded or desired an attorney of her selection to represent her, and that she was refused such request; and nowhere alleges that she declined to accept the services of Zweifel; and nowhere alleges that Zweifel misled her, concealed anything from her, dealt unfairly with her, or colluded with appellee to defraud her. It is undisputed that she accepted Zweifel's services and continued to deal with him as her attorney even unto the filing of her original petition in this cause, and it is nowhere alleged or hinted that she procured or was a party to his withdrawal from the case.
In detailing what testimony was not introduced before the trial court in connection with the value of the community estate, the following appears:
"Q. Were any witnesses heard concerning the value of the community estate between yourself and your husband? A. None at all, other than what Mr. Zweifel heard."
In an effort to show no want of diligence on her part to learn the true facts about the value of her portion of the community estate, she testified that she received, in New Orleans, a letter from Fort Worth, dated June 7, 1933, which she testifies she must have received on June 8th; that this letter gave her information concerning the income she and appellee had, or must have had for the year 1931, up to the 31st day of July of such year; that she examined the contents of the letter and immediately made arrangements to file suit against appellee; that she called Zweifel, who came to New Orleans the following day and brought with him the papers already prepared for her signature; that he arrived at about 7 o'clock and wanted to return on the 1 o'clock train; that she and Zweifel tried to find a notary but failed; that she told him to go on, and she would get the papers "notarized" that afternoon, and get it off on the night train; and that she did so. She said the paper she referred to was her original petition filed in this cause.
Further in her direct testimony, being asked by her counsel whether or not any specific character or kinds of property were discussed by appellee just prior to the filing of the divorce suit, she said:
"A. There was only one particular piece that I remember, that was really mentioned at that time, and that was the Gregg county. *Page 971
"Q. What was said about the Gregg county? A. Well, that was the largest holding, 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 a very little left of the Gregg county."
The "Gregg county" to which appellant referred were the oil lands sold to Yount-Lee Oil Company.
Appellant testified specifically to the execution by her and by her present husband of all of the instruments in writing which specifically ratified the original contract made between her and appellee, and specifically ratified the judgment which she sought and obtained against appellee. She introduced in evidence the original separation contract and settlement, and all of the ratifying instruments as follows: A quitclaim deed executed by appellant on August 20, 1931, conveying to appellee all of her right, title, and interest in and to the former homestead. This instrument she executed under the name of Stella B. Farrell, and as a feme sole, and so acknowledged it, although at the time she was secretly married to her present husband. Her marriage being made known to appellee, she and her present husband executed and delivered to appellee a second quitclaim deed to the homestead on February 18, 1932, which she introduced in evidence.
On October 20, 1931, appellant was given an instrument for execution which described minutely the contract of the sale of the East Texas oil lands by appellee and his associates to Yount-Lee Oil Company. This instrument gives the date of such contract of sale; the consideration paid and to be paid; the amount of cash actually paid and the several amounts of cash and the times of all subsequent payments to be made; the amount to be paid out of the oil produced therefrom; the actual interest owned by appellee and that owned by his associates; and the volume and page of the deed records of Gregg county, Tex., where the instrument is recorded. The instrument so delivered to her recites that she was the wife of appellee when the contract of sale was made and that the properties conveyed were the community properties of appellant and appellee. It further recites in detail the filing of a suit by appellant for a divorce from appellee and a division of the community estate; the entering into of a contract of settlement of the property rights between the parties, describing such settlement; the procuring of a judgment thereafter by her which embodied the terms of the settlement agreement which obligated her to transfer and assign all of her right, title, and interest in and to the community estate to appellee, and specifically conveys, releases, and quitclaims to appellee all of her rights in and to the Yount-Lee Oil Company contract and sale both as to all prior payments and all future payments thereunder; and said instrument expressly ratifies the settlement contract she made with appellee on July 8, 1931. She testified that this instrument was explained to her; that she executed it and acknowledged it on October 21, 1931, but that her present husband declined to execute it; and she further testified that she kept it in her possession and delivered it subsequently to her attorneys. She introduced it in evidence.
On November 2, 1931, appellant and her present husband executed and duly acknowledged a similar instrument reciting all of the facts in detail which are recited in the instrument dated October 20, 1931, and which instrument expressly released "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." This instrument was introduced in evidence by appellant and is her Exhibit No. 15. She testified that the instruments she executed were explained to her by Zweifel. She said with reference to the instrument executed by her alone, and that executed by her and her husband:
"A. Both of the instruments were explained in the same manner. The one Mr. Johnson (counsel) now has, Mr. Zweifel explained it was just ratifying the first agreement and I signed it.
"Q. What do you mean by the first agreement? A. The agreement that was made at the time of the separation on the 7th day of July, or the 8th day of July. This agreement, Mr. Zweifel brought to me (exhibit 15), and explained the different things in it, and said it was (as 1 knew) an oil company that didn't want to pay out payments any more than they had to, and they objected to paying the *Page 972 payments, unless everything was in order, and they refused to pay any more payments on the oil runs until that agreement had been signed."
On November 24, 1931, appellant and her present husband executed and delivered to appellee an instrument assigning and conveying to appellee all right, title, and interest in and to all of the royalty and mineral interest in some fourteen tracts of land described as to owners, surveys and recorded instruments. She testified that it was executed and delivered without objection on her part.
Appellant introduced in evidence also the property settlement agreement; her original petition for a divorce and division of the community estate; the decree she obtained; her original petition in the instant suit; and a copy of the YountLee Oil Company contract.
It is a wholesome rule, and should assuredly be applied in suits in equity, that the testimony given and admissions made by a party to a suit must be construed as binding upon him, and not merely sufficient to raise issues of fact. His testimony should be governed by rules that wholly differ from rules governing witnesses who are not parties. Nerio v. Christen et al., (Tex.Civ.App.) 189 S.W. 1038; Smith v. Boston Elevated Ry. Co. (C.C.A.) 184 F. 387, 37 L.R.A. (N.S.) 429, 431; Southern Surety Co. v. Inabnit (Tex.Civ.App.) 1 S.W.2d 412; 17 Tex.Jur. pp. 577, 578.
Appellant, by rather general statements, while on the witness stand, said she knew very little about the community properties, but, on cross-examination she testified positively that she knew just as much about the extent and value of the community properties on July 7, 1931, as she did when she executed the several instruments that expressly ratified the settlement agreement which she entered into with appellee, and the judgment which she sought and obtained. She testified that all of these ratifying instruments were explained to her. She admits that she kept one of them in her possession from October 20, 1931, until she prosecuted the instant suit. It gave her the minute details of the community estate under the Yount-Lee sale. With such an instrument in her hands on October 20, 1931, she subsequently joined her husband in executing and delivering a similar instrument on November 2, 1931, expressly releasing Yount-Lee Oil Company from all liability to her for payments made, or to be made, to appellee under its contract with appellee and his associates; and expressly releases and conveys unto appellee all of her rights under the contract.
Her acts have thus led both the YountLee Oil Company and Farrell to alter their positions to their hurt and injury. Yount-Lee Oil Company has made payments to Farrell which it would not have made had appellant and her husband declined to execute the ratification instruments, and Farrell, relying upon her acts and deed, has used the proceeds, thus obtained as belonging exclusively to him. But appellant here sued Yount-Lee Oil Company and Farrell jointly for an undivided one-half interest in and to the payments made and to be made.
Under the undisputed facts and admissions found in this record, no court of equity would be justified in requiring either Yount-Lee Oil Company or Farrell to account for any sum paid to Farrell.
This is not simply a suit between appellant and appellee Farrell; it was brought by appellant to recover a large sum of money from an innocent third party — Yount-Lee Oil Company — and to cancel and destroy solemn instruments in. writing, executed by appellant, for the benefit of Yount-Lee Oil Company, and upon which it relied in making the payments it has made to Farrell.
Appellant put Farrell upon the witness stand and by diligent inquiry brought out the fact that, within a day or two after appellant filed her suit for a divorce, her attorney, Zweifel, came to Farrell's office in search of information concerning the community estate, at which time Farrell gave Zweifel a copy of the YountLee Oil Company contract, and a statement, dated May 31, 1931, showing a complete audit of Farrell's books and accounts, disclosing all of the community assets and all of the then known debts and liabilities, and which placed a valuation upon all of the assets. The delivery of such documents by Farrell to Zweifel was corroborated by the witness Corzelius, who was present. It is undisputed that Zweifel had these documents at least twenty-seven or twenty-eight days before the divorce suit was brought up by appellant. It is interesting to note that these facts, brought out by appellant, from the lips of Farrell, were never denied by any witness, *Page 973 and no effort was made by appellant to lay a predicate to impeach either Farrell or Corzelius, but appellant carefully developed the fact that these documents were delivered to Zweifel after appellant left Fort Worth, and she contents herself with saying she did not see them.
Zweifel, the attorney whose services she accepted, could have denied receiving these documents, and an issue of fact would have then been raised, but he was not placed on the witness stand by appellant, although she testified that he dealt fairly with her, concealed nothing from her, and did not deceive her. In truth, the record discloses that he was fair with her; that he concealed nothing from her; and that he was diligent in protecting her rights and in securing for her the settlement that satisfied her and the judgment she desired.
The original petition, sworn to by appellant, filed in this cause, and introduced in evidence by her, sets up, in detail, the date and data covering the YountLee Oil Company contract and the payments made and to be made to Farrell in cash and out of oil.
Appellant testified that she had no such information until June, 1933, when she received a letter written from Fort Worth, Tex., by Ligon Co., dated June 7, 1933, telling her what her income (and Farrell's) was for the year 1931, up to July 31st of such year. This letter she says she received on June 8th at her home in New Orleans, that she immediately called Zweifel on the `phone; that he came to New Orleans at once and brought with him, already prepared, the original petition, which she filed in this cause. She verified it on June 10, 1933, and returned it to Zweifel with the letter received from Ligon Co. and the income tax data which Ligon Co. had sent to her. When she says that she and her attorney came into possession of the facts concerning the Yount-Lee Oil Company contract, and the facts concerning her income and Farrell's, for the period covering January 1, 1931, and July 31, 1931, inclusive, after the receipt of the Ligon Co. letter, dated June 7, 1933, that does not raise an issue of fact as to whether or not she then, for the first time, learned and knew of these matters, when she testifies, in open court, that her attorney brought her original petition already prepared for her signature, from Fort Worth to New Orleans, immediately after she telephoned him on June 8, 1931, and when the pleading, verified by her and introduced in evidence by her, sets out the nature, extent, and full consideration flowing to the community estate under the Yount-Lee contract; and when she expressly admitted that she knew at all times after the sale to Yount-Lee that the purchase price was $3,000,000, and that she and Farrell owned one-half of the purchase price.
She testified to marked familiarity with all of the business deals made by Farrell during the existence of the marriage relations. It is undisputed that practically all the community property owned, at the time of the separation, came from the sale of West Texas lands for the sum of $60,000, and from the sale of the East Texas lands to Yount-Lee Oil Company. She frankly admits that she was visiting her parents, in Florida, when the West Texas lands were sold by Farrell, and that he immediately communicated the facts to her; she likewise frankly admits that she was in California when the Yount-Lee sale was made, and that Farrell advised her of the facts concerning this sale.
She not only failed utterly to develop any fact or circumstance tending to show any concealment by Farrell of any fact relating to the existence, extent, or value of the community estate, she utterly failed to show that she was not at all times familiar with the facts, but, on the other hand, she shows that both she and her attorney were at all times familiar with these facts, and had ample information and time within which to learn the minute details between the time she filed her suit for a dissolution of the marriage contract and a division of the community estate, and the granting of the divorce.
Thus, it conclusively appears, from the undisputed evidence, the greater portion of which appellant produced, and none of which she attempted to controvert, or explain away, that she and her attorney knew, and must be held to have known, all of the facts concerning the existence, extent, and value of the community estate both before and when she executed the instruments, expressly ratifying her contract of settlement and the judgment she obtained, under and by virtue of which she caused both the Yount-Lee Oil Company and Farrell to materially change their positions with *Page 974 respect to such properties. If her want of knowledge, as asserted in her pleadings, has any element of truth in it, she and her attorney have been guilty of laches and she cannot now complain.
The writer is of the opinion that the testimony introduced by appellant raises no issue of fraud practiced upon her by Farrell. He was and is a mere layman, neither having nor claiming to have any knowledge of the law, and if he made the statements which she credits him with making, concerning the lawsuits and debts existing at the time she contracted to settle her property rights for a definite monthly income, instead of a division in kind, such statements were mere opinions as to future developments and concerned matters that must be decided at some future time, wholly dependent upon conditions and contingencies which might, or might not, be established in the courts wherein the suits were pending. She will not be heard to say that she relied upon such opinions.
But, if these statements are to be considered more than mere opinions of a layman, they were made in the presence of her attorney, who dealt fairly with and diligently for her, and he was placed in possession of ample data and facts, which followed up and investigated by him would have given him and appellant all of the knowledge and facts that Farrell possessed at the time.
It is interesting to note that under the Yount-Lee contract it was obligated to pay Farrell on the basis of not less than 30 cents per barrel for the oil run, and the undisputed evidence discloses that when appellant made her settlement contract, a condition of almost chaos existed in the East Texas oil field; the best price being paid for oil was 15 cents per barrel, and the Yount-Lee had shut down its wells. The $1,000,000 oil payment was in a precarious position, because of these conditions. Farrell had been paid all of the cash consideration due him from the Yount-Lee, excepting the sum of $56,250, which would fall due September 1, 1931. Appellant testified that she knew the oil business was an uncertain and hazardous business. She nowhere denied that she knew of this chaotic condition affecting the community estate. Under these conditions, she wisely asked for and took a certain income of $750 per month to be paid to her so long as she lived, instead of taking her chances in the business.
The community's interest in the cash consideration, without deducting the expenses and settlements of suits and claims, of some of which she testifies she had knowledge, amounted to $635,000, and one-half of this gross sum amounts to $317,500, whereas she obtained, of her own volition, a contract from Farrell whereby he has bound himself to pay her $750 per month, so long as she lives, and her life expectancy was at that time at least forty years. If she lives, Farrell and his estate are obligated to pay her not less than $360,000. Her settlement was just, equitable, and fair.
Furthermore, she admits by her petition for a divorce, and by her original petition in this cause (both introduced in evidence by her), that she had not lived with Farrell, as his wife, since March 1, 1931, four months and seven days before she finally left him. She admits that they had gone for weeks, before the final separation, without speaking; she never once testified that she ever loved Farrell, but testified that she thought she did when she married him; she testified that life with him became unbearable, and that she was determined to divorce him. She thus makes out a case not of a trusting, overreached, and abused wife, but one who was dealing at arm's length with her husband. Instead of producing evidence tending to show that her husband was penurious with her and secretive as to his business matters, she shows by her own testimony that Farrell gave her everything she ever asked for and spent many thousands of dollars upon her — much of it needlessly — to satisfy her and to hold her as his wife; that he begged her to stay with him and to come back to him, even after she had divorced him, but that she repulsed him, excepting on the last meeting in August, 1931, when she had hurried to Fort Worth to prevent Farrell from obtaining a new trial in the divorce proceeding, at which meeting she promised him to come back to him at the end of six months and tell him everything, and if he still wanted her, she would remarry him. She exacted of him a promise not to communicate with her for six months, not to see her, and not to annoy her. At that time she was secretly married to her present husband, and she did not want him to know the truth about what she had done, or would do in the future. She says she had no intention, at that time, of ever living with Farrell again as his wife. *Page 975
By this deceit she induced Farrell not to press his motion for a new trial in the divorce suit and made it impossible for him to set aside the very judgment which she here asks a court of equity to set aside. It is interesting to note that, while appellant gave no explanation of why she exacted of Farrell the promise to do nothing for six months, nevertheless Farrell's right to appeal, even by writ of error, from the judgment she obtained against him, would be barred in six months. The record does not suggest, nor can we conceive of any other reason that would move her to set such a time limit upon the activities of Farrell. Her undisputed testimony shows that she came to Fort Worth at that time for the sole purpose of preventing Farrell from obtaining a new trial in the divorce suit, and that she practiced the deceit detailed for such express purposes.
She cannot, in the face of such inequitable conduct on her part, now come to a court of equity and ask that a part of the judgment which she sought and obtained — which she claims is distasteful to her — be set aside, when she thus prevented Farrell from setting aside the whole judgment, which was distasteful to him. Let him who comes into a court of equity come with clean hands.
Appellant introduced no evidence tending to support the following allegations: That the $1,000,000 oil payment would finally yield only a small revenue; that practically all of the cash realized from the Yount-Lee sale had been applied and would have to be applied on the community debts; that the sum of $500 per month would be a fair, equal, and adequate compensation to her for her one-half interest in the community estate; that Farrell was secretive with respect to his business affairs, and concealed the facts concerning their properties from her; that she made diligent effort to discover the true facts concerning the extent and value of the community estate, but all of her efforts were met with a studied attempt on Farrell's part to conceal the truth and prevent her from knowing the true facts; that Farrell brought about the separation and "kicked her out"; that Farrell worshipped the almighty dollar, and was penurious in his dealings with her; that Farrell forced the divorce action on her. Having pleaded that Farrell was "reticent and seclusive" with respect to his deals and the community properties, and that her diligent efforts to learn the true facts concerning the same were met by a studied attempt on Farrell's part to conceal the truth from her, and that because of such acts on his part she does not now know the facts, she shows that she did not rely upon his statements with regard to the extent and value of the community estate, and it was incumbent upon her to produce testimony tending to prove these allegations. This she wholly failed to do.
Appellant credits Farrell with saying to her: "I could take what he would give me, or I could take nothing." This was not a representation of a fact, but was such a statement as was calculated to put appellant on her guard. The statement, if made, establishes the fact that the parties were then dealing at arm's length, and that an atmosphere of hostility pervaded the home, where the conference was being held.
But if it be viewed as the statement of a fact, appellant cannot be heard to say she relied upon it, because she frankly admits that Zweifel advised her with regard to her community rights — that she was entitled to one-half of the community estate and, in addition thereto, to the use of the homestead. In fact, she testified that she knew what her rights were, before Zweifel advised her.
As to the issue, raised in her pleadings, of a mental condition, rendering her incapable of sound judgment, caused by grieving over the accidental death of her little son, on February 19, 1931, she introduced no evidence sufficient to raise such an issue.
On the other hand, she testifies that within about three days after she filed her suit for a divorce, she met her present husband; that they became interested in one another; that this friendship ripened into love and she became engaged to marry him in less than three weeks and before the date on which she called up her divorce suit for trial. She developed by her testimony the fact that she was mentally alert on the 7th and 8th of July, 1931.
All of these acts and deeds on the part of appellant are those of a young woman normal in mind and body, and not of one who was so bowed with grief that she was incapable of understanding the consequences of her acts. She married the man to whom she was then engaged; she fought to prevent Farrell from setting *Page 976 aside the divorce decree and thus destroying her new marital relations, and she is at this time living with her new husband.
Appellant declined to testify that she wanted the community estate divided, when she obtained her decree — she goes no further than to testify that she could not say she would not have taken one-half of the community estate, if it had been given to her. She specifically testified that she would not say she wanted the estate divided, when she obtained her decree.
The district judge, before whom she urged her divorce suit — Justice Lattimore — detailed the facts covering what was said and done at her trial. He testified positively that when he looked over the settlement agreement, he told appellant she was making a mistake in not taking her portion of the community estate — that every month, when she received her check, the old wounds would be reopened — that she would be better satisfied if she took her community interest. Justice Lattimore testified that she refused to take his advice, but told him that she wanted the matter settled as had been agreed upon — that he then approved the settlement agreement. She did not deny these facts.
The record nowhere discloses that appellant testified that she relied upon the statements, with which she credits Farrell, or that she was induced to make the contract, secure the judgment, and execute the ratifying instruments, by reason of such statements.
She utterly failed to meet the burden that was upon her and, without such testimony, no issue of fraud was raised.
Sifted to the bottom, appellant's case rests solely upon the proposition that, if she did not in fact actually obtain the equivalent of one-half of the community estate, she is, as a matter of law, entitled to set aside a solemn judgment that she sought and obtained, and to cancel the contract she made, and all instruments, executed by her, ratifying the judgment and her contract of settlement.
This is not the law. Such a proposition is destructive of every principle which recognizes the sanctity of judgments of courts of competent jurisdiction. Harn v. Phelps, 65 Tex. 592, 597, cited in the case of Wagley v. Wagley (Tex.Civ.App.) 230 S.W. 493.
The writer attaches no importance to the loose statements and dicta found in some of the opinions of Courts of Civil Appeals upon which appellant relies.
It will be noted that these utterances have never been approved by, nor have any like utterances been made by, the Supreme Court, or the Commission of Appeals; but in every case, where a judgment has been attacked by a direct proceeding, the established rules were required to be met.
Appellant failed to bring herself within the bounds of a court of equity, and the peremptory instruction was properly given by the trial court.