Hatch v. de la Garza , 22 Tex. 176 ( 1858 )

Wheeler, Ch. J.

The suits to foreclose the mortgages, had been instituted, and were pending, when the Act of the 5th of February, 1840, was passed, “to provide for the foreclosure of mortgages,” (Hart. Dig. Art. 2505,) and the subsequent proceedings were properly conducted in accordance with the provisions of the Act.

There had been a citation, not served, because the defendant was not found in the county. An order of publication, as provided in the case of non-residents, was then obtained; publication was made; and the defendant failing to appear, the proper judgment was rendered. The judgments are not, upon their face, void, for the want of the service which the law prescribed. Nor has the plaintiff jmoved the truth of the allegations, on which he seeks to avoid and annul them; that is, that at the time of the service, by publication, he was a resident of the country; and that the judgments were fraudulently obtained. On the contrary, the proof is, that he did not remove to fix his residence in the country, until after his return from his captivity in Mexico, in 1843. There was no evidence to warrant the court in giving instructions to the jury, which assumed that they might find his residence to have been in this country, at any time during the pendency of the suits. Nor was there evidence of any illegality, or fraud, in obtaining the judgments. The plaintiff has wholly failed to establish the alleged nullity of the judgments. Upon their face, they are valid judgments, rendered by a court of competent jurisdiction; and are, of course, conclusive of all matters therein litigated, or which might have been brought in litigation therein, touching the cause of action, by the defendant. If there had been fraud in the contract of bargain and sale, out of which the mortgages arose, or any invalidity in the cause of action, it should have been set up as a defence. These questions are as completely concluded, by the judgments, as if they had been set up as defences to the suits, and had been therein decided against the defendant. They cannot be made on the ground of avoiding, or impeaching the validity of the judgments, or of a claim for equitable relief, in a collateral action. (Foster v. Wells, 4 Tex. Rep. 101; Weathered v. Mays, Id. 387; Grassmeyer v. Beeson, 18 Id. 753.)

But, if these judgments were out of the way, the plaintiff has wholly failed to prove any fraud, or unfairness, in the sale to him of the land, or any matter on which to found a claim for relief. The allegation, that his vendor had title but to half the land conveyed in the larger tract, is disproved. It is shown that he had obtained full acquittances from the heirs of his former wife, whose estate he is charged to have sold; and as to the alleged false representations, respecting the smaller tract, none are found. It was sold by defined and specific boundaries, without, so far as appears, any representation as to the quantity. And where land is thus sold, that the quantity'turns out to be less than as described in the deed, is no ground for rescinding the contract. There is no error in the judgment, and it is affirmed.

Judgment affirmed.