Baxter v. Dear
24 Tex. 17
Tex.
1859
Check Treatment
Bell, J.

We are of opinion, that there is error in the judgment of the court below, for which it must be reversed.

The counsel for the appellee, Mrs. Sarah W. Furr, has argued, with great ingenuity and force, that inasmuch as the appellant, Baxter, was driven, after the death of Tobias Furr, to ask thе interposition of the court, to revive the judgment in the case numbered 1124, the court, acting as a court of equity, might require the plaintiff in that cause, to consent to the revival ‍​​‌​​​‌​​​‌​‌​‌‌‌​​​‌​‌‌‌​‌‌​‌​​​​​‌​‌‌‌‌​​‌‌‌​​‍of the judgment, upon such terms as would exempt the homestead of Mrs. Furr from the operation of the judgmént, after its revival, inasmuch as a true construction of the original contract upon which that judgment was obtained, would have saved the homestead rights of Mrs. Furr. It cannot be doubted, that the contract entered into between the appellant and Tobias Furr, *21and Sarah W. Furr, on thе 5th day of March, 1856, was nothing more, in legal effect, than a mortgage by Tobias Furr and his wife, to secure to Baxter the payment of the sum of money due him by Tobias Furr. And if the homestead rights of the wife, Sarah W. Furr, had been properly presented to the court, on the trial of the cause, numbered 1124, the court would have protected those rights, by a suitable decree. But it appears, that, on the trial of the cause, numbered 1124, Mrs. Sarah W. Furr was represented by an attorney, who acted for her, and filed an answer in her name. The judgment in that case recites, thаt the parties appeared, by their attorneys, and waived a jury, and submitted their matters to the court, &c. This court has never gone so far, as to hold that such a judgment can be inquired into, upon equitable considerations; and we have not been able to find any case, in whiсh a court of equity has assumed the power to set ‍​​‌​​​‌​​​‌​‌​‌‌‌​​​‌​‌‌‌​‌‌​‌​​​​​‌​‌‌‌‌​​‌‌‌​​‍aside the solemn judgment of a court .of competent jurisdiction, to enable a party to present a defence, which might have been presented in the first suit, and where no fraud is shown in obtaining the first judgment.

The courts of this statе recognize the competency of married women to appear in the tribunals, as litigants; and while they have the privilege of аppearing, and are under legal obligation to appear as litigants, the courts are obliged to apply to them, the samе rules that apply to other parties, litigating their rights in the courts. In certain cases, the law imposes upon the courts the duty of protecting the separate property of married women, where the liability of such property to be taken in execution, is in question. But beyond the requirements of the statutes, the courts cannot go, to extend protection to parties who appear as litigants in the courts, and who must, therefore, be presumed, in each particular case, to be able to assert and defend their rights.

The casеs to which the attorney for Mrs. Furr has made reference in his brief, furnish very striking illustrations of the extent to which ‍​​‌​​​‌​​​‌​‌​‌‌‌​​​‌​‌‌‌​‌‌​‌​​​​​‌​‌‌‌‌​​‌‌‌​​‍courts of equity will go, to compel those to do equity who ask it. The case put, in which a mortgagee lends a further sum of money on bond, and after breach of the condition *22of the mortgage, the mortgagor dies, and the heir wishes tо redeem, is a proper case for the exercise of those powers peculiar to a court of equity. In that casе, the legal rights of the heir are gone. The breach of the condition of the mortgage, vests the absolute legal right in the mortgagee; аnd it is only in a court of equity that the heir can assert any right to redeem. And in a court of equity, his right to redeem is recognised, because it would be inequitable to permit the mortgagee to hold the land, which may exceed very greatly in value the debt intended to be secured. When, thеrefore, the heir asks the court to compel the mortgagee to do him the justice to accept his debt, and surrender the land, thе court may well say, “ The mortgagee shall do you this justice; but you owe him money on the bond, for which he has no security; and you shall also be just, and pay what you owe on the bond.” . So there is a class of cases in which the .courts of equity, in England, exercise an authority even morе arbitrary, and which is said to rest upon long practice, rather than upon any sound principle. There are cases in which parties are obliged to ask the aid of a court of equity to reduce into possession the property of the wife. If the property of the wife can be reduced into possession, through the instrumentality of a court of law, the court of equity has no right to interpose to ask that any settlement be made upon the wife; but if, from any cause, the husband is driven to invoke the aid of a court of equity, in order to obtain possession of the wife’s estate, the court will not lend its assistance, except upon condition that a suitable settlement be made upon the wife out of her estate.

These are the cases in which courts of equity go farthest in the exercise of the powers рeculiar to them; but even in these cases, they never go so far as to interfere with, a court of law, or to. set aside the judgment of a court of law, fairly obtained. We think that Mrs. Furr ought ‍​​‌​​​‌​​​‌​‌​‌‌‌​​​‌​‌‌‌​‌‌​‌​​​​​‌​‌‌‌‌​​‌‌‌​​‍to have asserted her homestead rights when the cause numbered 1124 was pending; and that it was not сompetent for the court, in the trial of the cause numbered 1334, to go behind the judgment of the court in the cause numbered 1124, and make a dеcree that would restrain the exec'u*23tion of the judgment that had been rendered in the last mentioned cause.

Upon the authority of the case of Austin v. Reynolds, 13 Texas Rep. 546, it was necessary to mаke Mrs. Furr a party to the proceeding, to revive the judgment that had been obtained against her husband and herself, in the cause numbered 1124. It wаs therefore proper to permit her to make herself a party to that proceeding to revive. But in proceeding to revive a judgment, the courts will not exercise any peculiar powers as courts of equity. They will follow the law. It is not necessary for us to say whether any cause, ‍​​‌​​​‌​​​‌​‌​‌‌‌​​​‌​‌‌‌​‌‌​‌​​​​​‌​‌‌‌‌​​‌‌‌​​‍which did not arise subsequent to the rendition of the judgment, will authorize the court to refuse to revive it. It is enough for the prеsent case to say, that the answer of Mrs. Furr, and the evidence offered in support of it, were not sufficient to authorize the court tо reform the judgment in the case numbered 1124, in the manner exhibited by the decree; or in any manner to destroy the effect of the judgment in the cаse numbered 1124.

The facts of this case, as developed by the record, are such as justify the zeal evinced by the counsel for the appellee, Mrs. Sarah W. Furr; but our duty seems to us to be plain in the matter, and of course we cannot turn our eyes from the law, because of the peculiar nature and circumstances of the case. The judgment of the court below is reversed, and the cause remanded for further proceedings, in conformity with this opinion.

Reversed and remanded.