Lot 18, block 2, in Oil City, Clay county, belonged to the community estate between Prank Kuehn and Pearl Kuehn, his wife. Prank Kuehn was insolvent, and‘among the debts he was unable to pay was one due to appellee. Under these circumstances, Prank Kuehn gave to his wife and by a deed conveyed to her the lot mentioned. Afterwards appellee brought suit on the debt referred to, and recovered a judgment against Prank Kuehn. By virtue of an execution issued on this judgment the lot was sold, and appellee and P. L. Kuehn were the purchasers at the execution sale. After-wards Pearl Kuehn, then Pearl Lane, she having been divorced from her former husband, Prank Kuehn, and having married appellant Joe Lane, brought a suit against Prank Kuehn, appellee, and P. L. Kuehn to try the title to the lot. Her petition was in the form ordinarily used in an action of trespass to try title. Prank Kuehn answered her suit disclaiming title. Appellee and P. L. Kuehn answered it by a plea of not guilty. On the trial Mrs. Lane for title relied on the deed of gift to her from her former husband. Appellee and P. L. Kuehn offered evidence showing the deed of gift to be fraudulent and void as to Charles Kuehn, the plaintiff in the judgment under which they claimed, and relied upon that judgment and their deed from the sheriff as proof of title in them. The court held the judgment to be void, “because it did not properly dispose of the parties” to the suit in which it was rendered, and thereupon rendered a judgment in favor of appellant Pearl Lane. “Said judgment,” it is recited in the statement of facts, “did not save or except from its adjudication any of the issues made in said cause, but declared in general terms that the said plaintiff (Pearl Lane) recover of and from said defendants the title and possession” of the lot. Afterwards appellee recovered a valid judgment against Prank Kuehn on said debt, and had an abstract thereof registered as provided by law so as to create a valid lien on all real estate owned by said Prank Kuehn in Clay county. Claiming that the deed of gift from Prank Kuehn to his wife was void as to him, and therefore that the lien of his judgment attached to the lot as property belonging to Prank Kuehn, Charles Kuehn by a suit against Prank Kuehn, Pearl Lane and her then husband, Joe Lane, sought a foreclosure of the lien he asserted. Prank Kuehn, it seems, did not answer the petition in this suit. Pearl Lane and her husband answered by a general denial, and set up the judgment rendered in favor of Pearl Lane in her suit against Prank Kuehn, appellee, and P. L. Kuehn as a bar to the relief appellee sought. This appeal is from a judgment in favor of appellee foreclosing the lien he claimed as prayed for and directing a sale of the lot in satisfaction of his judgment against Prank Kuehn.
[1] The only question presented by the assignments is one as to the effect of the judgment rendered in favor of Pearl Lane in her suit against Prank Kuehn, appellee, and P. L. Kuehn. Appellants insist that the effect of that judgment was to conclusively establish as between the parties to it that the title to the lot was in Pearl Lane, and to preclude appellee from claiming a right to foreclose a lien against it as the property of Prank Kuehn. We do not think that judgment had that effect. The ultimate issue in that suit was one of title only. Pearl Lane claimed the title by virtue of the deed of gift from her husband. Appellee and P. L. Kuehn claimed it by virtue of the judgment and execution against Prank Kuehn and the sheriff’s deed conveying his title to them. A question as to the validity of the deed of gift to Pearl Lane was not litigated and determined' in that suit. The judgment in favor of Pearl Lane was not based on a finding that the deed of gift to her as against Charles Kuehn and P. L. Kuehn was valid. The necessity for the determination of such *365■a question did not arise, and it was not determined, because the court found that the judgment Charles Kuehn and P. L. Kuehn relied upon was void. That finding necessarily led to a judgment in favor of Pearl Lane, without reference to the validity of her deed; for the right of Charles Kuehn and P. L. Kuehn to make a question as to its validity depended upon the validity of the judgment they claimed under. In that suit they were not asserting a right as creditors -of Frank Kuehn at the time he made the deed of gift, and if the judgment they relied upon was void they did not stand in the place of, and had not acquired the rights of, such a creditor, as purchasers at his execution sale. [2] To be entitled to question the validity of the deed on the ground that it was without consideration, they must have been in the attitude in that suit of such a creditor, for the deed of gift could be attacked as invalid on the ground stated only by such a creditor. Sayles’ Stat. 1897, art. 2545. In the suit resulting in the judgment appealed from, appellee was asserting as against the validity of the deed a right as a creditor of Frank Kuehn at the time-the -deed was made. That he was such a creditor, that the deed to Pearl Lane from Frank Kuehn was without consideration, and that Frank Kuehn at the time he made it was insolvent, were conclusively shown. We think it clear that the judgment in favor of Pearl Lane in the former suit did not preclude him from obtaining the relief granted him by the judgment, and therefore it will be affirmed. Moore v. Snowball, 98 Tex. 20, 81 S. W. 5, 66 L. R. A. 745, 107 Am. St. Rep. 596; Wylie v. Langhorne, 45 Tex. Civ. App. 618, 101 S. W. 527; Manning v. Green, 121 S. W. 723.