7 S.W.2d 930
BONNER et al. 
v. 
PEARSON et al.
(No. 663.)
Court of Civil Appeals of Texas. Waco.
May 10, 1928.
Rehearing Denied June 21, 1928.
Page 931
        Appeal from District Court, Freestone County; W. T. Jackson, Judge.
        Suit by H. B. Pearson and others against T. H. Bonner and others, in which defendants interposed a 
cross-action. Judgment for plaintiffs, and defendants appeal. Affirmed.
        T. H. Bonner and P. O. French, both of Fairfield, for appellants.
        Walters & Kidd, of Mexia, for appellees.
        GALLAGHER, C. J.
        This suit was instituted by appellees H. B. Pearson, R. A. Pearson, G. W. Pearson, Mary L. Pearson, 
joined by her husband, W. H. Pearson, and Nettie Phillips, a widow, as plaintiffs, against appellants Shug 
Williams and T. H. Bonner, as defendants, to set aside a certain judgment rendered by the district court of 
Freestone county in favor of said Shug Williams against C. H. Alexander, Geo. Phillip Jones, H. B. March, 
A. G. McIlwaine, T. A. Gaston, R. E. Pearson, and Mary L. Pearson, and the unknown heirs and legal 
representatives of each of said parties, for the recovery of title to and possession of a certain tract of land 
described in said judgment; appellant Bonner was alleged to be claiming some interest in said land under 
said Shug Williams. Appellees alleged that all the parties defendant named in said judgment were dead at 
the time the same was rendered; that said land belonged to the Mary L. Pearson named in said judgment 
in her lifetime; that none of the other parties defendant in said judgment ever had any interest in or to 
said land; that appellees H. B. Pearson, R. A. Pearson, Mrs. Mary L. Pearson, and Mrs. Nettie Phillips were 
the only children and heirs at law of the said Mary L. Pearson, one of the defendants in said judgment, 
and that they were jointly seized and possessed of the tract of land sued for herein; that said tract 
contained 204 acres, and was the same land described in said judgment. Said judgment was rendered on 
service of citation by publication. Appellees alleged as a ground for setting the same aside certain 
irregularities in obtaining such service; that said suit and all the proceedings therein were in pursuance of 
a fraudulent conspiracy between said Shug Williams and his associates to impose upon the jurisdiction of 
the court and to obtain title and possession of said land upon fictitious and perjured claims; that said 
judgment was rendered upon the testimony of said Shug Williams and his brother, Hun Williams, and that 
such testimony was false and perjured, and constituted the very essence of the cause of action asserted in 
said suit and the sole basis of the judgment rendered. Appellees prayed that said judgment be annulled 
and vacated and removed as a cloud upon their title to said land, and that they be quieted in their title to 
and possession thereof and for judgment therefor.
        Appellants answered by general denial and pleaded the statute of limitation of 4 years in bar of the 
annulment of said judgment. They disclaimed as to any land in said tract in excess of 160 acres, and 
asked the court to decree such excess, if any, to plaintiffs, the same to be taken out of any part of said 
land. They also pleaded in the alternative, alleging adverse possession of said land for 10 years prior to 
the filing of this suit, and prayed for judgment quieting their title and possession thereof and for general 
relief.
        The case was submitted to a jury on seventeen special issues. Such of said issues as are material to 
a full understanding of the propositions of law hereinafter discussed, or the substance thereof, will be 
recited in connection with each such proposition, respectively. The court, upon the answers of the jury 
returned in response to such special issues, rendered judgment canceling and vacating said former 
judgment and removing the same as a cloud upon the title of appellees to the lands involved in this suit, 
and awarding to appellees a recovery against the appellants of the title and possession of the land sued 
for and writ of possession therefor. Appellants here present said judgment for review.
Opinion.
        Appellants by their first proposition contend that appellees' attack on the former judgment was 
collateral. Appellees instituted this suit to vacate and annul a judgment for the title and possession of the 
land in controversy, recovered by appellant Shug Williams against them as heirs of their deceased mother, 
Mary L. Pearson. Among the grounds for such relief alleged by appellees was a charge that said judgment 
was recovered in pursuance of a fraudulent scheme, and that it was supported solely by perjured 
testimony. The jury found that the testimony of Shug Williams and his brother Hun Williams, upon which 
testimony
Page 932
alone said judgment was rendered, was false, fraudulent, and perjured. The judgment appealed from first 
vacates and annuls said former judgment, and removes the cloud cast by the same upon appellees' title to 
said land, and also awards them a recovery thereof. This suit was a direct attack on said judgment under 
which appellants claimed. Buchanan v. Bilger, 64 Tex. 589, 593; McMurray v. McMurray, 67 Tex. 665, 
668, 669, 4 S. W. 357; Avocato v. Dell' Ara (Tex. Civ. App.) 84 S. W. 443, 444, writ refused; Davis v. 
Jones (Tex. Civ. App.) 149 S. W. 727, 733, par. 1; Ellis v. Lamb-McAshan Co. (Tex. Civ. App.) 264 S. W. 
241, 242, affirmed (Com. App.) 270 S. W. 547; Cotterell v. Koon, 151 Ind. 182, 51 N. E. 235; 15 R. C. L. 
p. 839, § 312.
        Appellants, by a group of propositions, contend, in substance, that the only manner in which a final 
judgment, regular on its face, and rendered by a court of competent jurisdiction, can be attacked and 
vacated in this state, is by bill of review under article 2236 of the Revised Statutes, filed within 2 years 
after the rendition thereof; that this suit is not such a proceeding; that the same being instituted and 
prosecuted without statutory authority, cannot be maintained, and that appellants' exceptions based on 
such contentions should have been sustained. We agree with appellants that this suit is not such a 
proceeding as is contemplated by said article of the statutes. The bill of review so provided for amounts to 
no more than a motion for new trial, permitted by virtue of the statute to be filed, and heard after the 
adjournment of the term. It is available only in cases in which judgment has been rendered on service of 
process by publication and the defendant has not appeared in person or by attorney of his own selection, 
and may be granted only for good cause shown. Good cause, as used in said statute, is shown when it is 
made to affirmatively appear that the defendant had no actual notice of the pendency of the suit and that 
he has a meritorious defense thereto. It is but a continuance of the original suit, and does not possess the 
character of an independent action in equity to review and vacate such judgment. Dunlap v. Wright (Tex. 
Civ. App.) 280 S. W. 276, 277, 278, and authorities there cited. While appellees alleged that the judgment 
assailed in this suit was rendered upon service of process by publication, that they did not know of the 
pendency of said suit nor the rendition of said judgment until long thereafter, and that they were the 
lawful owners of the land at the time appellant Williams recovered judgment therefor, and therefore had a 
meritorious defense to his suit — all that was necessary to be alleged in a bill of review — they did not 
stop there, but further alleged that said judgment in favor of said Williams was fraudulently procured by 
him solely upon the false and perjured testimony of himself and his brother, the only witnesses who 
testified in the trial of that case. We may concede that there is no express statutory authority for the 
institution and prosecution of such a suit. It does not, however, follow therefrom that it cannot be 
maintained. Our courts possess general equity jurisdiction, and may proceed to grant relief upon the 
principles thereof, irrespective of any statute authorizing such proceeding. The foundation of such 
jurisdiction is not in the statute, but in the judicial incompetency of the courts of common law to furnish a 
plain, complete, and adequate remedy. Moore v. Blagge, 91 Tex. 151, 38 S. W. 979, 983, 41 S. W. 465. It 
has been expressly held in this state that our district courts, in the exercise of their equitable powers, may 
re-examine a case upon its merits when it is made to appear that the judgment therein has been obtained 
by fraud or upon false and perjured testimony without any want of diligence on the part of the 
complaining defendant, and may on such hearing grant such relief as equity and justice may demand. 
McMurray v. McMurray, supra, page 669, 4 S. W. 357; Buchanan v. Bilger, supra; Wolf v. Sahm, 55 Tex. 
Civ. App. 564, 120 S. W. 1114, 121 S. W. 561, writ refused. The court did not err in overruling applicants' 
exceptions.
        Appellants by an appropriate proposition complain of the action of the court in overruling their 
exception to plaintiffs' petition on the ground of nonjoinder, in that all the other parties defendant in the 
judgment assailed were not made parties to this suit. As hereinbefore recited, said judgment was 
recovered by appellant Shug Williams, not only against Mary L. Pearson, appellees' ancestor, and her 
heirs, who are prosecuting this suit, but also against certain other parties named therein and their heirs 
and legal representatives, none of whom are parties hereto. Appellees, however, alleged that all said 
parties were dead at the time such suit was instituted, and that none of them ever had any interest in the 
land in controversy. Such allegation showed that such parties had no adverse interests to be protected, 
and that they could not therefore be affected by any judgment rendered herein. Appellants' exception was 
therefore properly overruled.
        Appellants present as ground for reversal the action of the court in refusing to instruct a verdict in 
their favor. They contend in this connection that the evidence showed an outstanding legal title to the land 
in controversy superior to the title of appellees. Appellees introduced in evidence a patent dated March 7, 
1851, from the state of Texas to John H. Evans, assignee of Richmond Fearing, covering the land in 
controversy herein, which patent was duly recorded in Freestone county on the 2d day of November, 
1855. They also introduced a regular chain of title from said Evans to their
Page 933
ancestor, Mrs. Mary L. Pearson, and testimony showing that they were her only heirs. Appellants 
introduced in evidence certain portions only of an instrument which they termed a Spanish grant from the 
states of Coahuila and Texas to J. I. Aguilera. The parts of said instrument so introduced read as follows:
        "States of Coahuila and Texas. Signed by Vincente Alderete. Of Assistance, Secundino Rodriques. Of 
Assistance, Man'l Perez. To Jose Ignacio Aguilera. Dated November 26th, 1833. Field Notes of Jose Ignacio 
Aguilera 11 League Grant." (Here follow such field notes in detail.)
        It was shown in this connection that said instrument was filed August 8, 1870, and duly recorded in 
the deed records of Freestone county. The official character, if any, of said Alderete was not shown. 
Neither is there anything in the statement of facts showing or tending to show the further contents of such 
instrument. The evidence found in the record is wholly insufficient to show a valid outstanding title in the 
heirs or assigns of said Aguilera. The effect of the judgment recovered by appellant Shug Williams against 
appellees as heirs of Mary L. Pearson, deceased, was to divest them of the title to said land and vest such 
title in said Williams. This suit was to cancel and annul said judgment and to recover the title to said land 
of which they had been so divested. Appellants did not file a formal plea of not guilty. They not only 
disclaimed title to any excess in said tract over the 160 acres which they were permitted by the terms of 
article 5510 of the Revised Statutes to claim under the 10-year statute of limitation, but asked the court 
affirmatively to decree such excess, if any, to plaintiffs and agreed that the same might be taken out of 
any portion of the premises in controversy. They also filed a cross-action, asserting title in themselves by 
reason of alleged peaceable and adverse possession of said land, cultivating, using, and enjoying the 
same for a period of 10 years prior to the filing of this suit by appellees, and asked affirmative relief 
thereon, quieting them in title and possession of said land, and further prayed for general relief. The court 
did not err in refusing to give a peremptory charge in favor of appellants.
        Appellants by a group of propositions complain of the action of the court in submitting to the jury by 
appropriate issues the contentions of the respective parties with reference, not only to canceling and 
vacating the former judgment, but also with reference to the merits of the case, and, in rendering 
judgment canceling said former judgment and disposing of the case on its merits at the same time. This 
suit being an equitable action to cancel and vacate a judgment that had become final by the adjournment 
of the term at which it was rendered, the action of the trial court was proper. We quote from Owens v. 
Foley, 42 Tex. Civ. App. 49, 51, 93 S. W. 1003, 1005, writ refused, as follows:
        "The universal practice is to require the plaintiff in such an action to set up, not only his reasons for 
reopening the judgment assailed, but to so plead as to enable the trial court to determine the issues 
presented in the original action and render such a judgment as will be an effective substitute for the 
judgment set aside."
        See, also, Overton v. Blum, 50 Tex. 417, 423; Roller v. Wooldridge, 46 Tex. 485, 494; Taylor v. 
Fore, 42 Tex. 256, 258; Raymond v. Conger, 51 Tex. 536, 539, 540; Cooper v. Cooper (Tex. Civ. App.) 
260 S. W. 679, 680; O'Quinn v. Harrison (Tex. Civ. App.) 271 S. W. 137, 138.
        Appellants by a group of propositions complain of the charge of the court on the burden of proof. 
Said charge placed the burden on appellees to establish their cause of action to set said former judgment 
aside by a preponderance of the evidence, and on appellant Shug Williams to establish all the essential 
facts showing his claim to title by limitation by such preponderance. Appellants objected to that part of the 
charge placing such burden on said Williams. Appellants by cross-action asserted title under the 10-year 
statute of limitation at the time this suit was filed. They thereby claimed the benefit of their adverse 
possession during the period which elapsed between the date of the rendition of said former judgment and 
such filing. They prayed for affirmative relief, quieting them in the title and possession of the land in 
controversy. The facts upon which their claim of title was based were submitted to the jury for 
determination by special issues, none of which were objected to by them. The court properly placed the 
burden upon them to prove the essential facts necessary to sustain such cross-action. Davis v. Border 
Mortg. Co. (Tex. Civ. App.) 281 S. W. 642, 645, writ dismissed; Baldwin v. Davidson (Tex. Civ. App.) 143 
S. W. 716.
        Appellants present in their brief, as ground for reversal, thirty-one separate propositions. We have 
examined and considered all the same. To discuss each of said propositions separately would extend this 
opinion beyond proper or reasonable limits. The jury found that appellees learned of the recovery of the 
judgment sought to be set aside for the first time in January, 1926, little more than a year before the 
institution of this suit; that Shug Williams and his brother, Hun Williams, gave to appellee H. B. Pearson a 
note for the rents on the inclosed portion of the land in controversy for the years 1912 to 1914, inclusive, 
and that Shug Williams paid a part of said note. While the jury found that Shug Williams took adverse 
possession of the small portion of said lands which was inclosed with a fence in 1903 and used and 
cultivated the same, they
Page 934
further found that he never held such adverse possession continuously for 10 years prior to 1914, when 
he executed said rent note; that he never at any time held adverse possession of any of said land for 10 
consecutive years, and that he and his brother, Hun Williams, the only witnesses who testified in the trial 
at which the judgment assailed herein was rendered, testified falsely and fraudulently on material and 
pertinent facts in said trial and obtained such judgment by so doing. The judgment appealed from is 
supported by these findings. While some of such findings are assailed by appellants as being without 
support in the evidence, we think each of them has sufficient support therein to make it improper for us to 
set the same aside. Some of these findings are also assailed by appellants as being in conflict with other 
findings of the jury not necessary to recite in detail. We do not think there is any substantial conflict. The 
trial court received and approved the verdict of the jury, and rendered judgment thereon. Afterwards on 
motion for new trial he further approved the same by refusing to set such judgment aside.
        None of the propositions urged by appellants present grounds of complaint sufficient to justify us in 
reversing said judgment, and it is therefore affirmed.