In dissenting from an affirmance of the judgment rendered in this case I shall accept as true the facts found by the jury and those testified to by the appellee and his witnesses in the trial. The suit is one by the appellants against the appellees to recover possession of a tract of land. As evidence of title the appellants proved the followings facts: (1) A deed, fee simple in form, from Clark and wife conveying the title to Knight, in consideration of a cash payment and the execution of two vendor's lien notes payable to Clark; (2) an assignment of the notes by Clark to the bank, and a suit on those notes in which a judgment was rendered in favor of the bank, foreclosing the vendor's lien, and ordering a sale of the land; (3) the issuance of the order of sale, a sale of the land, and a purchase by a representative of the bank; (4) a deed from the sheriff conveying the property to the purchaser. All of those proceedings were regular and in proper form. The judgment was, upon its face, valid and binding upon Knight and Clark and wife. Those facts made a complete prima facie case in favor of the appellant, and, unless met and overcome in some legal manner, required the trial court to direct, as requested, a verdict in favor of the plaintiffs below.
In order to entitle the appellees, defendants below, to defeat this suit, it devolved upon them to prove (1) that they had a good defense to the former suit, and (2) that they were prevented by conditions for which they were not responsible, or by the fraud of the plaintiffs in that suit, from presenting that defense at the proper time. Until that judgment is set aside, or modified, it presents a complete estoppel to the assertion by Clark and wife of any defense to the merits of that controversy which should have been considered in that trial.
That judgment is not void for lack of power in the court to render it, nor is it voidable, if it is wrong, it is merely erroneous. The plaintiffs' petition disclosed a subject-matter within the jurisdiction of the court; and the record shows that Clark and wife had been properly cited, but that they failed to appear and file an answer. As a defense to the merits in that case Clark here sets up a claim that the property was his homestead at the time of the conveyance to Knight, that the deed to Knight was intended only as a mortgage, and that the bank officials knew all those facts at the time the notes were *Page 165 assigned to the bank by Clark. Those facts, if true, would have been a good defense in the trial of that suit; but in order to be available in this controversy Clark must show some legal or equitable reason for reopening that judgment. He must prove that the failure to appear and contest that suit was not due to his own negligence. Johnson v. Templeton, 60 Tex. 238; Merrill v. Roberts, 78 Tex. 28, 14 S.W. 254.
The facts pleaded as grounds for reopening that judgment are duress and fraud. The evidence in support of the charge of duress is so clearly insufficient that it is unnecessary to discuss it. As proof of fraud Clark testified that after suit on the notes had been filed, and after citation had been served on him and his wife, he conferred with the president and the attorney for the bank and discussed with them the propriety of his defending the suit; that they advised him not to make any defense, telling him, in substance, that it would get him into trouble. They also told him that it was necessary for the suit to go to judgment in order that matters might be "straightened out" so that the bank could reconvey the land to him. He further testified, in effect, that it was agreed that if the suit went to judgment the bank would later reconvey the land to him upon his execution of vendor's lien notes for the amount of the debt due the bank. His wife testified that she conferred with an attorney, with a view of making a defense, but finally concluded not to do so. It is not alleged or shown that Clark was ignorant of his rights, or that any false representations of existing facts were made to induce him not to answer in the case. On the contrary, it appears that he relied on the promise of the president of the bank to buy the property at the foreclosure sale and reconvey it to him. That was not done, doubtless because the bank was taken over by the commissioner of insurance and banking. But, even if the bank had willfully refused to carry out that agreement, such refusal would have furnished no grounds for reopening the judgment. Had that agreement been fully performed Clark, according to his own testimony, would have held the land subject to the vendor's lien in favor of the bank to secure the payment of the old debt. Let us assume that this agreement had been fully performed by the bank; that the property had been reconveyed to Clark upon the execution of his vendor's lien notes for the original debt; could he, in a suit to foreclose that lien, go behind that judgment and set up his homestead rights and the invalidity of the conveyance to Knight? Clearly, he could not. If that be true, then Clark cannot claim as a ground for reopening a judgment, to let in the homestead claim, the breach of an agreement which would have resulted in a judgment completely estopping him from thereafter asserting that defense. The right to reopen the former judgment is apparently defended upon the ground that the homestead cannot legally be incumbered with a mortgage of this kind, and therefore the courts have no power to decree a foreclosure of an invalid lien. However correct that proposition may be, it has no application to this controversy. The controlling question here is, not one relating to the power of the court to render a judgment foreclosing a lien on the homestead, but one involving the legal effect which shall be given to a judgment foreclosing a vendor's lien — an action against which a homestead claim could not be asserted. Upon the face of the record the former suit was one of that kind, and the court had jurisdiction over all interested parties. Such a judgment as that cannot now be set aside for lack of power to render it. Williams v. Haynes, 77 Tex. 283, 13 S.W. 1029, 19 Am. St. Rep. 752; Sanger v. Trammell, 66 Tex. 361, 1 S.W. 378. Until it is set aside it creates an estoppel. If the bank had bought the notes of Knight without notice of the homestead claim and the simulated character of the sale, clearly Clark would now be estopped by his deed, and the court would have the power to foreclose the vendor's lien, regardless of what might be the homestead rights of Clark and wife. Or had the homestead been sold under the decree of foreclosure to one who was ignorant of the true character of the transaction between Clark, Knight, and the bank, the judgment directing the sale would not be open to attack upon any of the grounds here asserted by Clark. Dean v. Dean (Tex.Civ.App.) 165 S.W. 90, and cases there cited. Judgments foreclosing liens upon property used for homestead purposes are sustained, not because courts have authority to disregard the constitutional inhibition against incumbering homesteads, but upon the ground that the homestead claimant is, under certain conditions, estopped to plead and prove his homestead rights and the simulated character of his conveyance. Clark is not here estopped by his deed, because he alleged and proved that the bank purchased the notes with notice that the deed was intended only as a mortgage on the homestead. But he is estopped by the judgment which he permitted to be rendered against him in a suit based upon that deed. After the rendition of a valid judgment it will be presumed that the evidence supported the legal conclusions of the court upon the issues presented by the pleadings of the parties. Such a judgment is not only conclusive as to all issues which the parties actually tried, but of all those which they might have tried. Nichols v. Dibrell, 61 Tex. 539; Beaumont Irrigating Co. v. De Laune, 107 Tex. 381, 180 S.W. 98; Pickford v. Walter, 225 U.S. 651, 32 S. Ct. 687, 56 L. Ed. 1240. Estoppel by deed is based upon equitable rules which are adopted to protect purchasers from fraud. *Page 166 Estoppel by judgment is based upon principles of public policy. The last is equally as effective as the other.
But if we construe Clark's testimony as showing a collusive scheme entered into by all the parties, including the bank officials, to validate an invalid mortgage through the medium of a judgment, he is in no better attitude. Such an agreement would be an undertaking to perpetrate a fraud on the court. In an equitable proceeding to avoid the legal consequences of that judgment Clark cannot set up his own illegal conduct as a ground of relief. However plain his case may be, the court will leave him just where he had placed himself. But no such facts are pleaded, and for that reason alone that defense would not here be available.
My conclusion is that the trial court should have given the peremptory instruction requested by the appellant, and because of that refusal the judgment should be reversed and a judgment here rendered for the appellant.