The questions presented are:
1. Do the proceedings anterior to the final decree limit its effect so as to correct its disposal of the entire Talbert tract?
2. If not, can a mifetake be shown by parol in support of the defense?
3. The effect of such decree upon the title claimed by the defendant.
1. As, from its very nature, thq final judgment is the declaration of the law upon the facts ascertained, the preliminary proceedings cannot be examined to extend its effect or to enlarge its meaning. Will the judgment be alike independent when in excess of the remedy requested, or of the facts alleged for its action?
The purpose of allowing appeals is for the correction of such and other errors. The district court has general jurisdiction at law and equity, and the adjudication of the land from one of the parties to the other is within its jurisdiction. Its power upon the subject is determined by the constitution and laws of the state. In this case the parties, Williamson and Mittower, were before the court. The defendant appeared, defended, and agreed to submit the matters in dispute to arbitration. The court had, as is apparent, jurisdiction over the parties and of the subject-matter of the decree. It had Mittower before it, and had the power to adjudge the Talbert third league of land to Williamson’s administratrix.
Again, the pleadings in Williamson v. Mittower sought a money judgment and to foreclose a mortgage. Pending the suit the agreement was made to submit “ the whole matter ” to arbitrators. This is an enlargement of the mode of trial and of satisfaction of the claim. Technical regard to the pleadings nor to the relief to be granted was not exacted from the arbitrators.
If the parties had appeared before the arbitrators, and it had been submitted by Mittower that, in payment of an ascertained sum, the Talbert tract would be given, it was not *718incompetent for the arbitrators so to award. The evidence before them has not been reported; it was not necessary or proper that they should report more than their conclusions.
Upon the return into court of the award, the court has jurisdiction under the statute to enter it as the judgment of the court. Pas. Dig., 66.
But having the jurisdiction under the law to make such decree, and having jurisdiction over the parties, “no error in its exercise can make the judgment void.” Freeman on Judg., 135, and authorities cited; Weathered v. Mays, 4 Tex., 388; Tadlock v. Eccles, 20 Tex., 791; Withers v. Patterson, 27 Tex., 491; Vogelsang v. Dougherty, 46 Tex., 472; Taylor v. Snow, 47 Tex., 465; Guilford v. Love, 49 Tex., 740.
Finding, then, a decree within the jurisdiction of the court, its terms alone will determine its extent; and it will not, in a collateral attack; be restricted by the pleadings. A judgment erroneous for want of issues by the pleadings will be corrected on error or appeal, but it is not void. Kendall v. Mather, 48 Tex., 598.
2. Fraud and mistake control the rule as to the admission of parol testimony to vary, explain and contradict written instruments. It is within the power of a court of equity to grant relief against a mistake in a judgment; and it would seem even of the supreme court. Milam Co. v. Robertson, 47 Tex., 235.
Such correction,' when sought to be made in the court. where the mistake occurred, could be reached by an application in the nature of a writ of error coram nobis. Weaver v. Shaw, 5 Tex., 289; Milam Co. v. Robertson, 47 Tex., 239.
The relief should be sought within a reasonable time.
“ The rule is well established that a party seeking equitable relief against fraud or mistake is chargeable with laches from the time it was or ought to have been discovered.” Connolly v. Hammond, 51 Tex., 647.
“ The cause of action or suit arises when and as soon as the party has a right to apply to a court of equity for relief. In fraud and mistake it (limitation) will begin to run from *719the time of the discovery of such fraud or mistake and not before.” 2 Story’s Eq. Jur., sec. 1521a; Smith v. Fly, 24 Tex., 352; Kuhlman v. Baker, 50 Tex., 636; Munson v. Hollowell, 26 Tex., 475; Alston v. Richardson, 51 Tex., 6. If it be conceded that the defendant Wright could show the existence of a mistake so as to limit the effect of the judgment to which he was not a party, and upon the pleadings exhibited, still his application for the correction is made over twenty-six years after the alleged act, and with no allegation of ignorance, but with the fact appearing that he had actual knowledge of the proceedings.
In the case of Milam Co. v. Bobertson, above cited, such an application, made after seven years, was held too late. In Shaw v. Weaver, 5 Tex., 289, such application was held, “ by analogy to a bill of review, limited by our statutes to two years.”
We conclude, therefore, that the application to correct the judgment by parol testimony came too late, and defendant could ■ not acquire any right by showing such mistake, if indeed he has shown it.
It may be remarked that the testimony to the intention of the arbitrators in the award would not necessarily prove the mistake in the decree. The award was filed in court; the parties had the right to examine it; they may and doubtless did acquaint themselves with its contents. Bo objec" tions were made to the award. The decree as entered may have had the express assent of the parties, Williamson and Mittower.
3. The deed executed 29th September, 1840, to Mittotver for the Talbert certificate was on its face a complete conveyance of all estate, legal and equitable. It recited the payment of the consideration and was a deed with warranty. It is not apparent from the record that the note for §17,201.60, executed the same day, included the purchase money for a part interest in the Talbert land. The rights of an unpaid vendor holding a mortgage for the purchase money do not appear to have existed; at least such rights were not asserted by Bowerman. Johnson v. Byler, 45 Tex., 509; Burgess v. Millican, 50 Tex., 401.
*720The mortgage. having been recorded attached to seven hundred and thirty-eight acres interest in the land in favor of Bowerman, as well against the mortgagee as others. The title passing by the mortgage does not pass any estate in the lands. “ The mortgagor, notwithstanding the terms of the conveyance, remains the real owner of the fee.” Duty v. Graham, 12 Tex., 434; Mann v. Falcon, 25 Tex., 275.
The mortgagor is entitled as against the mortgagee, and •a fortiori as against all others, to the possession of the land, as well after as before the breach of condition of defeasance. Mann v. Falcon, 25 Tex., 275; Morrow v. Morgan, 48 Tex., 308. The mortgage, therefore, was not a defense as an outstanding title.-
The decree of the district court of Lamar county rendered October, 1848, operated as a conveyance to the administratrix of Isaac Williamson’s estate of whatever interest the defendant Mittower at the time had in the Talbert third league of land. As we have seen, the interest or estate upon which the decree could act was full title to the one-hálf interest, and the equity of redemption in the other half, or seven hundred and thirty-eight acres. After that decree Mittower had no power to sell or to diminish the estate or interest in the Talbert land vested in the Williamson heirs. At least any purchaser from him with notice of the right of the Williamson heirs would take no title.
Bowerman’s administrator, Williams, having the right to do so, brought suit against Mittower alone to foreclose the mortgage. A decree was rendered for the sale, among other . lands, of seven hundred and thirty-eight acres of the Thos. Talbert land included in the mortgage.
The plaintiffs, holding the equity of redemption in the seven hundred and thirty-eight acres so ordered to be sold, could not be affected by the decree. Their rights were of public record; and those participating in the foreclosure proceedings having notice, not having been made parties, they were not concluded in their rights. Morrow v. Morgan, 48 Tex., 307; Peters v. Clements, 46 Tex., 115; Wright v. Wooters, 46 Tex., 380; Sample v. Irwin, 45 Tex., 567.
As against Wright, who is a subsequent purchaser from *721Mittower, the plaintiffs are entitled to the possession notwithstanding the foreclosure. Being owners and entitled to possession, their title was good until a foreclosure against them.
[Opinion delivered December 18, 1880.]There are no pleadings setting up Wright’s ownership of the mortgage, if he owns it, and that it is valid. Such equities, if they exist, cannot be adjusted in absence of pleadings. Moreland v. Barnhart, 44 Tex., 283; Morrow v. Morgan, 48 Tex., 307.
The charge of the court withdrew from the jury all consideration of the pleas of limitation. This appears to have been done in accordance with the course of the defendants in the trial. Taking the testimony of defendant Wright to his possession under his deed duly recorded in 1849, payment of taxes, etc., we do not see why limitation was not insisted upon. Had the defenses pleaded been submitted to the jury with like result of a verdict for defendants, such verdict would have been sustained. They were not passed upon by the jury, and in the issues really submitted and acted upon, there was error in the charge of the court.
This state of the record compels a reversal of the case.
The judgment below should be reversed.
Reversed and remanded.