The facts of this case have been so ably analyzed by my associates that I shall content myself with a consideration of the authorities, a discussion of which presupposes that the reader is familiar with the contents of their opinions.
In general, the decisions upon divisions of community property by court upon divorce may be divided into those cases in which the spouses leave to the court the division of the community, and those cases in which is involved an agreement existent at the time of the divorce.
In the first class are Aucutt v. Aucutt (Tex.Civ.App.) 63 S.W.2d 755, in which the agreement had been set aside already; Reasonover v. Reasonover (Tex.Civ.App.) 59 S.W.2d 887, 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, which dealt only with future support of the children; Cox v. Mailander (Tex.Civ.App.) 178 S.W. 1012, in which some of the various agreements had been terminated by resumption of the marriage relation; Murray v. Murray, 67 Tex. 665, 4 S.W. 357, in which the opinion reversed the sustaining of a general demurrer to a wife's complaint that while she was out of the state and unable to return and defend herself, her husband had procured a decree based on his perjured testimony that all the property was his separate property — see Warne v. Jackson (Tex.Civ.App.) 273 S.W. 315, 317, so analyzing the opinion.
In some of those opinions by the language used it is said that the court cannot, in a divorce case, divest a spouse of title to community property, but the phrases cannot be lifted from their context and made into an inflexible rule. In truth, *Page 977 the statements are founded on article 4638, R.S., that "nothing herein shall be construed to compel either party to divest himself or herself of the title to real estate." Our case is not one of compulsion but rather a decree of court pursuant to an agreement and rendered after the insistence of appellant upon it.
The second class are in turn to be divided into those separation agreements not confirmed by judgment, and those which are so confirmed. It is apparent that there is a practical difference, because the first are beyond the power of the complainant to alter them after signing save by suit, while the latter class continue subject to the right of the wife to disaffirm upon any substantial ground by pleading those grounds to the trial judge upon the trial. Moreover, upon public policy some stability must attach to a final judgment and litigants must be required to use due diligence to present their cases at the time appointed. "To hold otherwise * * * would have the effect of opening a way for capricious attacks upon all judgments rendered in suits adjudicating the property rights of divorcees, would jeopardize the integrity of all such judgments, and unsettle property rights now securely at rest under the solemn sanction of the courts of the state." Snow v. Cook (Tex.Civ.App.) 278 S.W. 520, 521; Warne v. Jackson, supra. In either class the same proof is sufficient as to the making of the contract, but in the latter the additional burden exists for plaintiff's failure to exercise the diligence the courts must demand in the interest of public security.
In the first division of this second class are Cox v. Mailander (Tex.Civ.App.) 178 S.W. 1012; Link v. Link (Tex.Civ.App.) 63 S.W.2d 1045; Moor v. Moor (Tex.Civ.App.) 255 S.W. 231; Rains v. Wheeler, 76 Tex. 390,395, 13 S.W. 324; Kuehn v. Kuehn (Tex.Civ.App.) 232 S.W. 918; Id. (Tex.Com.App.) 242 S.W. 719. In each of those cases, as well as those we shall presently list under the second subdivision, there existed (1) a definite affirmative misstatement of what the community estate then owned; (2) ignorance of the plaintiff of the truth and a practical inability of the wife to discover the truth; (3) a belief in and reliance upon the misrepresentations; (4) innocence of the complainant of any misrepresentations in procuring the defendant to accept the divorce decree. The opinions of my associates show clearly that no one of these four elemental conditions exist here. The citation of Kuehn v. Kuehn (Tex.Civ.App.) 232 S.W. 918, 926, is hardly appropriate, for while that opinion states that a prima facie case is pleaded when the petition alleges that complainant did not get one-half the community property, that statement is directly contrary to Hedtke v. Hedtke, 112 Tex. 404,248 S.W. 21, and, moreover, the Kuehn Case went on to the Supreme Court on a granted writ of error and the opinion of the Commission of Appeals, 242 S.W. 719, is wholly silent of approval of such doctrine, but holds there was an issue of fact as to fraud; that fraud was perpetrated both during the pendency of the divorce suit and was continued into some time thereafter to carry the agreement to conclusion. In the Farrell Case the situation is reversed: This appellant, then Mrs. Burguieres but posing as yet Mrs. Farrell, perpetrates a fraud on Farrell to carry the agreement to conclusion.
A separation agreement must be, as such, enforced by equity. It was unknown to the common law. Hence, he who offers it must sustain it by rules of equity. But when it becomes a judgment, it is more than a contract in equity, and he who would abrogate that judgment must fulfill the same rules of equity.
Moreover, this Farrell Case is classified in the second division of the second class, as I have here attempted to divide them, i. e., those cases where the contract of settlement is carried forward into judgment and is the decree of the court, dividing the community estate as it "deems just and right, having due regard to the rights of the parties." The precedents therefor are Celli v. Sanderson (Tex.Civ.App.) 207 S.W. 179; Eldridge v. Eldridge (Tex.Civ.App.) 259 S.W. 209; Ralls v. Ralls (Tex.Civ.App.) 256 S.W. 688; Swearingen v. Swearingen (Tex.Civ.App.)193 S.W. 442, all cited by appellant; and Donnelly v. Donnelly (Tex.Civ.App.) 289 S.W. 110; Grant v. Grant (Tex.Civ.App.) 286 S.W. 647; Snow v. Cook (Tex.Civ.App.) 278 S.W. 520, and Sperry v. Sperry (Tex.Civ.App.) 103 S.W. 419. In the beginning, let me say that by those very precedents it is not unlawful for the court to approve a settlement *Page 978 by which one spouse receives her interest all in money and the other all in real estate. Celli v. Sanderson, supra.
Neither is it true that each spouse must necessarily receive one-half the community. Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21; Rice v. Rice,21 Tex. 58; Hughes v. Hughes (Tex.Civ.App.) 259 S.W. 180.
In Celli v. Sanderson, supra, the appellant represented that the estate was then insolvent and concealed from the wife the existence of any property except the lots she was getting and this continued during the pendency of the divorce suit when same "was about the only issue," although no issue was made of her knowledge or lack of diligence, and the opinion is, consequently, not more specific.
The court says in Eldridge v. Eldridge (Tex.Civ.App.) 259 S.W. 209,215: "The estate was of a complicated nature and appellant could not ascertain the true condition thereof, that she nor her attorneys could learn the true financial condition of the community estate."
The case was before the appellate court on the pleadings. Here Mrs. Farrell has testified and admits she knew of the Yount-Lee contract which was the bulk of the estate and her attorney, whom she still defends, knew all. Eldridge furnished a false inventory to deceive his wife — Farrell furnished a true auditor's report to his wife's lawyer. Mrs. Eldridge relied on the statements of her husband. Mrs. Burguieres did not so testify. "The court of chancery extends its relief only to the worthy and those whose conduct has not deprived them of the right to enter a tribunal dedicated to honor and uprightness". Justice Fly applied that rule to the Eldridge Case and we have done the same in the Farrell Case.
In Ralls v. Ralls (Tex.Civ.App.) 256 S.W. 688, 695, the husband solicited two lawyers to file suit for his wife, but rejected them when they informed him he must treat her fairly, and the record proves her correct in so saying. Justice Boyce there said: "The whole matter was so managed by her husband [Ralls] as to prevent her from ascertaining the extent of her rights." Farrell furnished an audit of his estate. Justice Boyce says: "The agreement itself contemplated a mock trial. * * * The fraud was upon the court as well as the wife." Mrs. Farrell insisted to the court on divorce that the division was as she wanted it.
In Swearingen v. Swearingen (Tex.Civ.App.) 193 S.W. 442, the husband told his wife that all the community estate consisted of $1,200 and that he would provide for her future support with their children. In fact, the estate consisted of $17,000 and the husband had hidden a large part of that in Mexico pursuant to a scheme to get rid of his wife without giving her her share thereof. Such a case is wholly different from the one at bar, as is shown in the facts reiterated in all our opinions.
In each of the last-cited cases, the record was clear of any suggestion that the complainant, in review, was not justified in proceeding to judgment in the divorce. This record affirmatively shows that Mrs. Farrell either knew of what she now complains or had the facts presented to her in such compelling fashion as that only deliberate blindness or gross negligence can excuse her lack of knowledge. Proetzel v. Schroeder,83 Tex. 684, 19 S.W. 292. These principles are illustrated in Donnelly v. Donnelly (Tex.Civ.App.) 289 S.W. 110, where it is held that plaintiff's knowledge or that of her attorney prevented her prevailing in a bill of review, and Sperry v. Sperry (Tex.Civ.App.) 103 S.W. 419.
I am of the view that our decision is not in conflict with any final decision of our appellate courts of Texas, but is in accord with and supported by the principles of law underlying all of them. Facts differ and call for different decisions on the same rules of court. It is so here.