Henderson v. Terry

Citations

• 62 Tex. 281
• 1884 Tex. LEXIS 228

Syllabus

<p>1. Judgment — Parties.— In a suit to enforce a lien on land to secure the payment of a note, C. was sued as principal, B. as surety, and H. as indorser. Judgment by default was taken against B. and H., and a decree entered, first subjecting the land to its payment. C. answered, and his attorney obtained leave to make O.’s wife a party, and filed a separate defense for her, claiming that land as separate property, and that it was a homestead. Her answer was stricken out. Afterwards C. and wife brought suit against the plaintiff, who recovered judgment in the former proceeding, to enjoin and vacate the decree which ordered a sale of the land, not making B. and H. parties thereto, and obtained judgment vacating so much of the former judgment as ordered a sale of the land. In a proceeding by B. and H. to enjoin the plaintiff in the first action from enforcing execution against them as original surety and indorser, held:</p> <p>(1) B. and H. were not affected by the judgment in the second suit, to which they were not made parties.</p> <p>(2) If, in the second suit, the original plaintiff and O. and wife consented to the entering of a decree whereby the first judgment was vacated, so far as it foreclosed the lien on the land, and B. and H., not being parties, did not consent thereto, then they were relieved from liability under the first judgment, to the extent of the value of the land.</p> <p>(3) If, as a fact, C.’s wife was a party defendant in the first suit, she was concluded by the decree therein to the extent of all matters that might have been litigated in that suit.</p> <p>2. Separate acknowledgment.—The fact that the officer taking the acknowledgment of a married woman to a deed misrepresents or fails properly to explain its contents to her, cannot affect the grantee in the deed, he being ignorant of the omission of duty or the fraud.</p> <p>3. Privileged communication.— In order for a communication to an attorney to be privileged, so that it cannot be used in