Dissenting.
I respectfully dissent. Appellants seek a bill of review as a direct attack to set aside a consent judgment entered in 1883. They contend that the judgment must be set aside because Richard King and his attorney, Robert Kleberg, committed extrinsic fraud in securing the judgment. The trial court granted a no-evidence summary judgment for the appellee, King Ranch.
For the purposes of this dissent I will briefly outline the origin of the consent judgment. Richard King bought the Rin-con in 1853 and sold an undivided one-half interest to Gideon K. Lewis. In 1856, King conveyed to William Chapman an undivided one-half interest in the remaining undivided one-half interest which King owned in the Rincon. Thus King and Chapman each owned an undivided one-fourth interest in the Rincon. Lewis died in 1855, and the administrator of his estate, Hamilton Bee, sold the estate’s undivided one-half interest in the Rincon to King and Chapman. In 1856, Bee executed a deed (the Lewis Deed) conveying the property to them jointly. At that point *708King and Chapman each owned an undivided one-half interest in the Rincon. According to appellants the Lewis Deed was not delivered to Chapman, but was delivered to King, or to King’s agents and attorneys. The Lewis Deed was not recorded until 1904. When Chapman died he left his interest in the Rincon to his wife, Helen B. Chapman. Thus she became the owner of an undivided one-half interest in the Rincon.
In 1879, she brought a trespass to try title suit against King (Cause No. 1279) in which she sought to recover title and possession of the undivided one-half interest in the Rincon which she had received from her husband, along with other lands in South Texas. She based her claim on her share of the Rincon on the one-fourth interest deeded by King to Chapman and the one-half interest jointly purchased by King and Chapman from the Lewis estate. After Helen died John Rankin was substituted as the plaintiff in the suit. Attorney Robert Kleberg represented Rankin in the suit. During the pendency of the suit King hired Kleberg as his attorney. In 1883, the suit was settled, resulting in the consent judgment which appellants now seek to set aside. The consent judgment provided that Helen could only recover a one-fourth interest in the Rincon, that is, one-half of the one-half interest which she had sought to recover from King. The judgment also provided for a sale of that land from Chapman to King and a recovery of other land by Chapman from King.
In the suit now before us King Ranch moved for summary judgment under Rule 166a(i), arguing that there is no evidence to support one or more elements of the bill of review action and that there is no evidence of extrinsic fraud. King Ranch also moved for summary judgment on the grounds that the four-year statute of limitations barred the bill of review action and that the consent judgment barred appellants’ claims for trespass to try title and action to quiet title.
Appellants’ Response To The Summary Judgment
In their response appellants stated that the essential element of their claim is whether there is evidence that the Estate of Helen B. Chapman was prevented from presenting its meritorious claim in Cause No. 1279 because of extrinsic fraud on the part of Richard King. They asserted that extrinsic fraud occurred when King “corrupted” Robert Kleberg, the attorney of record for the plaintiff in Cause No. 1279, and “together King and Kleberg entered the Consent Judgment.”
A trial court must grant a no-evidence summary judgment motion unless the non-movant produces more than a scintilla of evidence raising a genuine issue of material fact on the challenged elements. Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex.App.—Houston [1st Dist.] 1999, no pet.). Thus in the context of a no-evidence summary judgment the party with the burden of proof at trial has the burden of proof in the summary judgment proceeding. See id. Because appellants failed to produce more than a scintilla of evidence on extrinsic fraud I must dissent.
Bill of Review
The grounds upon which a petitioner can obtain a bill of review are narrow, because the procedure conflicts with the fundamental policy that judgments must become final at some point. Transworld Fin. Servs. Corp. v. Briscoe, 722 S.W.2d 407, 407 (Tex.1987); Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 998 (1950). Generally bill of review relief is available only if a party has exercised due diligence in pursuing all adequate legal remedies *709against a former judgment and, through no fault of its own, has been prevented from making a meritorious claim or defense by the fraud, accident, or wrongful act of the opposing party. Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex.1999).
In relation to attacks on final judgments, fraud is classified as either extrinsic or intrinsic, and only extrinsic fraud will entitle petitioners to bill of review relief. Tice v. City of Pasadena, 767 S.W.2d 700, 702 (Tex.1989); Montgomery v. Kennedy, 669 S.W.2d 309, 312 (Tex.1984). The Montgomery court stated that:
extrinsic fraud is that fraud which denies a losing litigant the opportunity to fully litigate his rights or defenses upon trial. Extrinsic fraud is “collateral” fraud in the sense that it must be collateral to the matter actually tried and not something which was actually or potentially in issue in the trial. Extrinsic fraud is conduct that prevents a real trial upon the issues involved. Intrinsic fraud, on the other hand, is inherent in the matter considered and determined in the trial “where the fraudulent acts pertain to an issue involved in the original action, or where the acts constituting the fraud were, or could have been litigated therein.”
Montgomery, 669 S.W.2d at 312-13.
Richard King’s Alleged Extrinsic Fraud
To me the critical issue is whether appellant presented summary judgment evidence to support his claim that Robert Kleberg, the lawyer for the Chapman Estate in the 1879 lawsuit against King, sabotaged his client’s case to the advantage of the opponent, Richard King. The only way appellant can avoid the four-year statute of limitations for Bill of Review Actions is by the proof of extrinsic fraud by the opponent, Richard King, in that ancient litigation. The fraud alleged is that King retained Kleberg while he was representing Chapman, and Kleberg, being so employed by King, subverted Chapman’s case to King’s advantage, necessitating an unfavorable settlement relinquishing Chapman’s one-half interest that had been acquired from Lewis.
The majority relies on several pieces of evidence which is claimed constitute probative evidence of King’s extrinsic fraud: (1) William Chapman’s notations in his leather-bound account book; (2) a letter from Stephen Powers; (3) evidence that King was unable to produce an “alleged” letter written by William Chapman relinquishing to King his land from the Lewis Deed; and (4) a letter by King’s attorney in Cause No. 1279 to King’s widow returning the original Lewis Deed. None of these were mentioned in appellants’ Response to the Motion for Summary Judgment, and the trial court’s attention was not directed to such evidence to avoid the “no evidence” motion for summary judgment. Fact issues not expressly presented to the trial court shall not be considered on appeal as grounds for reversal. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 676 (Tex.1979). Our duty is to review the decision of the trial court given the information the judge had at the time of decision. We cannot consider these matters that were not presented to the judge in appellants’ response to the motion for summary judgment. Reliance on such by the majority is improper and cannot be a grounds for reversal.
Next, the majority relies on evidence that the missing Lewis Deed was later found and filed in 1904 by King’s successors. The inference is that King was hiding the deed to the detriment of Chapman, because without the deed no interest in Chapman could be proven. However, King admitted in his pleadings that he and *710Chapman jointly bought the property from Lewis’s estate and jointly took a deed. That admission in the litigation rendered harmless the absence of the actual deed. The focus of King’s defense in the 1879 lawsuit was that Chapman had never paid for his share, and that King had to pay the entirety on threat of foreclosure, and that Chapman let King have the land.
I am unable to see the importance of the missing Lewis deed given those admissions of King. I do not understand how without the missing deed, “King’s allegations that Chapman wanted out of the land purchase and had not paid his share had the potential of bearing more weight before the court in cause no 1279.” See majority slip opinion at 18.
The majority finds evidence of King’s extrinsic fraud in the failure of John Rankin to get authority from the probate court to settle Cause No. 1279. While this may have constituted a defect in the judgment, I can find no argument or authority for the proposition that it voided the judgment to make it subject to collateral attack. This assault is by bill of review, with a four-year limitation period. The judgment was signed in April, 1883, and this action was filed in April, 1995, 112 years later. The failure of the probate court to approve the settlement should have been challenged earlier. There has been no argument in the response to the motion for summary judgment that Kleberg failed to receive approval from the probate judge because he was working at the behest of King.
Assuming Kleberg was acting as Rankin’s attorney in the suit, while at the same time on a retainer to Richard King, there is no evidence to show that King “corrupted” or directed Kleberg to prevent Helen Chapman or Rankin from proving title to the undivided one-fourth interest in the Rincon as evidenced by the Lewis Deed. The settlement of any lawsuit involves many difficult considerations and decisions, especially given the period in which this litigation occurred. At the time of the consent judgment both William and Helen Chapman were dead, as were other alleged witnesses. The Chapman heirs were in South Carolina and were litigating via long distance. The judgment gave the Chapman estate certain lands that King had apparently had the use of for years, and approved a sale of the land to King. The Chapmans did not take nothing by their 1879 lawsuit.
The recitals of summary judgment evidence tending to raise a fact issue were either not presented to the trial court in appellants’ response to the motion for summary judgment or do not amount to any evidence of extrinsic fraud by Kle-berg/King against Chapman. I would hold that there is no summary judgment evidence that King or Kleberg committed extrinsic fraud, and therefore, affirm the summary judgment on this issue.
Trespass To Try Title
The majority concludes that based upon the evidence reviewed in their determination of the bill of review action appellants have produced more than a scintilla of probative evidence to raise a genuine issue of material fact concerning them trespass to try title claim. I disagree.
The gist of appellants’ argument is that because Helen’s grandchildren were not made parties to Cause No. 1279 the consent judgment is not binding upon them, and therefore, did not adjudicate their rights to the Rincon. In 1870, the Texas Legislature passed a statute providing that “[i]f the executor or administrator desires to recover possession merely of real property belonging to the estate, ... he must bring suit in the District Court, but need *711not make the heirs parties.”1 This law was effective at the time of the consent judgment. See East v. Dugan, 79 Tex. 329, 15 S.W. 273, 275 (1891) (citing the law).
In Webster v. Willis, 56 Tex. 468 (Tex. 1882) the supreme court discussed when heirs could sue to recover property for the estate. The court restated the rule “[t]hat the heirs cannot sue in their own right as heirs for property of the estate; the executor or administrator must sue.” Webster, 56 Tex. at 473 (quoting Giddings v. Steele, 28 Tex. 732, 748 (Tex.1866)). The court stated that there were two exceptions to this rule, neither of which are applicable here. Webster, 56 Tex. at 473 (quoting Giddings, 28 Tex. at 748).
Also in 1870 was enacted the following: “In every suit against the estate of a decedent involving the title to real estate the executor or administrator, if any, and the heirs shall be made parties defendant.” ’ Rev. Stat. art. 1202, (Act of Aug. 15, 1870) p. 141. (emphasis added). Interpreting that statute, the supreme court held in East v. Dugan, 79 Tex. 329, 15 S.W. 273, 275 (1891), that when a defendant asks for affirmative relief in a suit brought by an administrator, the defendant becomes a plaintiff to the extent of such relief, in which case the heirs of the estate suing must be made parties. Id. at 275. In East, the pleadings of the defendant were not part of the record and the court presumed they sought affirmative relief. However, a general denial does not constitute a request for affirmative relief necessitating the joinder of the heirs. See Jones v. Gibbs, 133 Tex. 627, 130 S.W.2d 265 (Tex.1939) and Jones v. Gibbs, 133 Tex. 645, 130 S.W.2d 274 (Tex.1939).
In the instant case John Rankin, co-executor of Helen Chapman’s Estate, prosecuted the action originally brought by Helen to recover real property belonging to the estate occupied by Richard King. He was not required to join Helen’s grandchildren as parties to the suit. See East, 15 S.W. at 275. The grandchildren could not sue King to recover the property because the exceptions to the rule announced in Webster did not apply to the Chapman Estate. See Webster, 56 Tex. at 473. King’s pleadings in Cause No. 1279 did not seek affirmative relief from Helen’s Estate. King plead generally, and then raised specific defenses, including admitting that the original purchase from the Lewis Estate was made jointly by King and Chapman, but Chapman had defaulted and King had been sued on the note he alone had given for the purchase.
Although a number of pleas were raised by King, I cannot say he requested affirmative relief from the estate. I would conclude that Rankin was the only person who could sue to recover the property for the estate and that the grandchildren were not required to be made parties to Cause No. 1279. See East, 15 S.W. at 275. I would hold that the trial court properly granted summary judgment on appellants’ trespass to try title claim. I would affirm the summary judgment.
. The Act of August 15, 1870, 12th Leg.C.S., ch. 81, § 231, 1870 Tex. Gen. Laws 348.