On Motion for Rehearing.
We have before us a copy of the notation made by the committee of judges from the Courts of Civil Appeals in granting the application for writ of error in the case of Rowland v. Klepper, 189 S. W. 1033, referred to in the opinion. This notation was as follows:
“Application granted. The Court of Civil Appeals erred in holding that the judgment could be annulled without the state being a party and without a meritorious defense.”
We do not doubt that, if this proceeding had been brought to set aside the judgment before there was any sale thereunder and before it had been discharged, plaintiff could only have maintained the suit by alleging that she had a meritorious defense. The reason for this would be that, if the defendant had no defense to the suit, another trial would produce the same result, no real damage was inflicted by the rendition of the judgment without service of citation, and a court of equity will not interfere to set aside a just judgment, though it may have been irregularly secured. But when property has been sold under the judgment for a grossly inadequate consideration, and this result was due to the lack of notice by the defendant of the pendency of the suit, which she otherwise would have had had citation been served upon her as required by law, then it certainly is true that “injury and damages have resulted,” and we believe that a court of equity can grant appropriate relief. It may be, as we shall hereafter state more particularly, that such relief would not require the setting aside of the judgment itself.
*737If any real right of the plaintiff in the judgment is to be affected by the suit to set aside the proceedings, then, of course, such plaintiff is a necessary party; for instance, if the judgment had not been fully discharged, or if the defendant, upon the setting aside thereof, could proceed against the judgment plaintiff to recover what had been received from the sale in discharge of the judgment. It is only under the latter suggestion that it could be said that the state in this case has any real interest that might be affected by this proceeding. Its claim was fully paid, and its only interest in the matter would be to prevent a claim in the future for the refund of the payments made to it. The same reason that makes it impossible for the plaintiff in this suit to make the state a party would make it impossible for her to recover from it the payments made. Besides, the plaintiff in this suit, by alleging, as a reason for not making the state a party thereto, that the claim of the state had been fully paid and tendering to the defendant the sum of money he had paid as “taxes and costs in said suit,” would probably be estopped from hereafter asserting any such claim. So that, as a practical matter, the interest of the state is so remote that under the particular circumstances it might well be held that it is not a necessary party.
[13] We are inclined to think, however, that the proper judgment in cases of this kind would be merely to set aside the sale, leaving the judgment itself undisturbed. Such action would afford all the relief necessary and would eliminate any question as to the necessity of alleging a meritorious defense to the judgment and of making the state a party to the proceeding. In the case of Weaver v. Nugent, 72 Tex. 277, 10 S. W. 459, 13 Am. St. Rep. 792, where the suit was to set aside an execution sale under judgment in which the state was plaintiff, it was said:
“The tender of the purchase money obviates the necessity of the presence as a party of the state, the nominal plaintiff in execution. This is in accordance with the decision in Miller v. Koertge, 70 Tex. 162, 7 S. W. 691 [8 Am. St. Rep. 587].”
In the said case of Miller v. Koertge, which was also a suit to set aside the sale in a case in which the state was a party, it was said:
“The plaintiffs in this suit tender the bid to the purchaser, and this may relieve them of the necessity of making the state a party.”
If a court of equity has the power to set aside a sale because of some irregularity in the manner of conducting it or in issuing the process, we can see no reason why, if the judgment itself was obtained without notice, and this resulted in a sale of property for an inadequate price, the court may not for this reason set aside the sale, though it may, if the equities of the case demand it, leave the judgment itself undisturbed.
While it was recited in the preface to the judgment in this case that the plaintiff was entitled to a decree annulling the judgment, the judgment as actually rendered only sets aside the sale and conveyance of the premises to the defendant. If the judgment did improperly set aside the former tax judgment, we do not think the defendant in this case is in any position to complain of such matter as that portion of the judgment does not injuriously affect him. However, we will modify the judgment heretofore rendered so as to only annul the sale itself and the sheriff's deed made to the defendant thereunder, and the motion for rehearing will be overruled.