(232 S.W.) lands in controversy as against appellee North Texas Trust Company and the Behrenses; the latter appellees having an undisputed interest in one of the tracts involved. In the alternative the court was asked to determine the valne of the equitable interest of appellant at the time of the separation in the community estate of herself and former husband, and fix a lien against the lands in controversy in her favor for such amount as should be found due her, and in further alternative for damages against R. W. Kuehn and North Texas Trust Com pany. "By her first amended original petition plaintiff (appellant) alleged, in substance: That she was married to the defendant R. W. Kuehn in or about the year 1885, and was divorced from him, in a divorce action brought by her grounded on acts of extreme cruelty and inhuman treatment committed against her by defendant Kuehn, by a decree of the district court of San Saba county, Tex., entered on the 17th day of November, 1915; that during the time plaintiff and defendant R. W. Kuehn lived together as husband and wife they accumulated community property, real and personal, and had such property, at the time of their separation on the 28th day of July, 1915, of the net value of $67,780; that prior to, and at the time of the execution of the separation agreement between plaintiff and defendant, R. W. Kuehn, said R. W. Kuehn, acting by and through one J. E. Odiorne, as his agent, proposed to plaintiff that they settle their property rights outside of court, and that then plaintiff would be free to obtain a divorce in a suit not involving property rights, and that J. E. Odiorne, as agent for R. W. Kuehn, represented to appellant that R. W. Kuehn was heavily involved financially, and that after his debts were paid he would only have about $20,000 left of community property, and that therefore plaintiff would be entitled to only $10,000 as her portion of the community estate; that plaintiff agreed to and executed the separation agreement, and subsequently the deed of ratification believing that the representations of R. W. Kuehn, through his agent, J. E. Odiorne, were true; that plaintiff did not have the advice of an attorney or any other friendly person capable of advising her in such transactions; that she had no independent knowledge of her husband's financial difficulties and obligations, he having always had the separate management of their community interests, and that she, being unlettered and unlearned, was wholly ignorant of business affairs; that she was worn out, sick, discouraged, and so mentally distressed over the conditions of her marital relations with defendant R. W. Kuehn at that time that she was induced to accept less than the value of her equitable portion of such property in settlement, and that she did so in order to have peace and rest for her mind and body; that she relied upon the truthfulness and representations of the said J. E. Odiorne, agent for R. W. Kuehn, as to the value of their community property and as to the financial difficulties and indebtedness of the said R. W. Kuehn, which representations were, in substance and effect, that the community property of plaintiff and defendant Kuehn was at that time worth, net, the sum of $20,000; that defendant Kuehn further promised at that time that he would take care of, support, and educate Leona, the only child of their marriage, and that he would make an absolute deed of conveyance of their homestead property near the town of San Saba, consisting of 135 acres of valuable farming land, with improvements thereon, together with all household effects, to their said daughter, Leona, as soon as plaintiff executed the proposed separation agreement; that said Odiorne, as agent for defendant Kuehn, then and there threatened plaintiff that, unless she agreed to the proposed settlement, defendant Kuehn would ruin her character in any divorce proceeding she might bring, and prevent her from obtaining a divorce, as well as any part of the property; that such representations as to the net value of the community estate were false and untrue; and that defendant, Kuehn knew them to be untrue. "Plaintiff further alleged that defendant Kuehn refused to pay the full sum of $10,000 as agreed upon in such settlement, but paid only the sum of $9,000 (the receipt of which she acknowledged, and the court was asked to take that amount into consideration in arriving at the equities of the parties to the suit); that defendant Kuehn wholly failed and refused to convey the homestead to their daughter, Leona, and that his promise to so convey was substantial part of the consideration that moved appellant to make such settlement; that at the time of the filing of the suit it had become impossible for the said R. W. Kuehn to execute his promise to so convey said homestead, he having lost all of his title and interest in the real estate formerly constituting a part of their community estate, through a course of squandering and waste and bad business dealing, which resulted in a large personal judgment being obtained against him by defendant North Texas Trust Company, on which judgment executions were issued and levied upon all of the lands in controversy in this suit; that to the extent of the $1,000 cash which was never paid to plaintiff and the value of said homestead, alleged to be $7,500, the insufficient consideration for such settlement had failed; that defendant R. W. Kuehn had become, at the time of the filing of the suit, totally insolvent, and that by reason of which a personal judgment against him for such amount as plaintiff might show herself entitled to would be worthless, and she could not thereby be compensated for her losses; and that by reason of all the facts alleged she was entitled to have all of her equities and right of recovery enforced against the lands and premises which plaintiff and defendant Kuehn owned at the time of their separation, standing in the name of the North Texas Trust Company at the time of filing of the suit. "As to the claim of the North Texas Trust Company, defendant, plaintiff alleged that it, having obtained a judgment against defendants R. W. Kuehn and J. E. Odiorne in the district court of Tarrant county, and having fixed attachment liens and foreclosed the same on the lands in controversy in this suit, bought in said lands at its own foreclosure sales as under execution, obtaining deed thereto from the sher. iffs of Williamson and San Saba counties, Tex.; that defendant North Texas Trust Company did not pay a valuable consideration for said lands at the sundry sheriff's sales, but merely credited the amount of its bids on the judgment which it held against R. W. Kuehn and J. E. Odiorne; that the judgment obtained against R. W. Kuehn and J. E. Odiorne, and the sale of the lands thereunder, was without the knowledge or consent of plaintiff, and that at such time the North Texas Trust Company had knowledge and notice of plaintiff's claim and equity in the lands, and of the fraud and undue influence that had been practiced upon her, by which she was induced to part with her record title thereto; that the North Texas Trust Company knew, or could have known, all of the facts concerning the conveyance of said property by plaintiff to defendant Kuehn, if it had exercised proper prudence, care, and diligence in ascertaining such facts; that by reason of the unlawful and wrongful levy and sale of said lands without any consideration moving from the North Texas Trust Company the title acquired by it was subordinate to the equitable title and interest of plaintiff in and to said lands. "To plaintiff's amended original petition defendant North Texas Trust Company answered by its third amended original answer, and thereby demurred generally and specially to plaintiff's amended petition, entered a general denial, and specially answered by a plea of res judicata, alleging that plaintiff had theretofore filed in the district court of San Saba county, Tex., a suit to recover the property in this suit sued for, and that a final judgment had been entered therein adverse to plaintiff, which judgment had been entered upon the hearing of a motion to enter judgment nunc pro tunc on the 11th day of November, 1919. "Said defendant further specially answered by alleging that after plaintiff had obtained a divorce from her husband, and while she was a feme sole, had conveyed for a valuable consideration, on the 30th day of November, 1915, all of the real estate in controversy in this suit to her former husband, R. W. Kuehn, and she had permitted the title to said property to stand in the name of R. W. Kuehn, and had permitted him to use, keep, and control said property, and to incumber it and to borrow from defendant North Texas Trust Company the sum of $64,000 while said property was standing in his name, and had permitted him to obtain credit upon the apparent title to said property, and that she was therefore estopped from setting up any claim to said property; that the said R. W. Kuehn had represented to the North Texas Trust Company that he owned the real estate in controversy, along with other property, and thereby induced it to loan money to defendant R. W. Kuehn in said sum upon the strength of the representations so made, and that it would not have loaned said sum, or any part thereof, but for such representations, and that by reason thereof plaintiff was estopped to assert any claim in or to said lands. ceived a valuable consideration for executing said deed, and that it, believing said transfer to be lawful, and without knowledge of the facts leading up to the divorce and settlement of the property rights between plaintiff and defendant Kuehn, was led to believe that R. W. Kuehn was solvent, and all of said property belonged to him in his own right, and therefore it loaned to said R. W. Kuehn the money on notes, which in turn were sued upon in the Seventeenth district court of Tarrant county, Tex., and upon which judgment was obtained against R. W. Kuehn and J. E. Odiorne; that plaintiff, having executed said conveyance, caused it to make the loan of said money and accept notes therefor; that it knew of and relied on the deed of conveyance to said R. W. Kuehn conveying the property in controversy, and believed representations then and there made to it by R. W. Kuehn that he did own said property in his own name and right, and, so knowing and believing, loaned said sum of money, which it would not have done but for the acts and conduct of plaintiff, and for which reason she was estopped from setting up any claim to said property as against it. "The North Texas Trust Company further answered that it was a bona fide purchaser for value without notice of plaintiff's pretended claims of right or interest in said lands, and without notice of any fact or facts that would or could in law charge it with notice of such claims. "Defendant North Texas Trust Company further answered that if plaintiff had had at any time a cause of action existing in her favor, it was lost to her, in that she had failed to assert it within a reasonable time after learning thereof, and that by reason thereof she had in fact and law ratified the same. "The same defendant specially denied that any undue influence had been brought to bear upon plaintiff leading up to the settlement, and alleged that she had acted therein upon advice of counsel, that she had not been misled in any particular, and that after the divorce had been granted she had, of her own free will, executed the deed of November 30, 1915; that she had not asserted any right to the property until long after it had obtained possession thereof; and that she was therefore estopped as to it. "It further answered that plaintiff was not entitled to the relief sought until she tendered into court the $9,000 which she admitted to have received. And, after alleging that it haά paid off certain incumbrances against the lands in controversy to persons not parties to this suit, prayed that it be protected in such payments by way of subrogation to the rights of the holders, and further prayed that the title to the lands be quieted in it. "The defendant Kuehn, by his answer, adopted in full the answer of the North Texas Trust Company, excepting its pleas of 'innocent purchaser' and 'estoppel.' "Defendants Behrenses filed their joint an"The North Texas Trust Company further swers, disclaiming any interest in the undividdenied that at the time it purchased said prop-ed one-third interest in the tract in controvererty it had knowledge, either actual or constructive, that plaintiff was claiming any interest in or to the same, and alleged that prior to the time plaintiff obtained her divorce she had executed a deed to J. E. Odiorne, trustee, to all the property in controversy, and had re sy (of which tract they owned the remaining two-thirds), except a lease contract alleged then to be still in force and effect, and alleged that the parties to this suit could not demand a partition until the expiration of said lease. They further answered that, the contested por (232 S.W.) tion of the lands involved not being claimed dered for defendants as directed, on January by them, they had no interest in this suit until the title to that part was established, and that no partition could be had until then. They further alleged that a suit for partition with themselves had been theretofore filed in the same court as No. 2231 by the North Texas Trust Company and prayed that the two suits be consolidated. 16, 1920, and judgment entered thereon on the same day. No relief, other than partition contingent upon recovery against defendants North Texas Trust Company and Kuehn having been asked as against defendants Behrenses, judgment was also entered in their favor." The plaintiff has appealed. Opinion. "To the answers of the defendants Kuehn and North Texas Trust Company, plaintiff replied by her first supplemental petition to her Although some other and minor questions first amended original petition, containing gen- are sought to be presented in appellant's eral and special exceptions and general denial, and by way of special replication to paragraph brief, her counsel, in a printed argument sub4 of the answer of defendant North Texas sequently filed, have abandoned all the asTrust Company set out the remaining portion signments except those which complain of of the judgment of the court rendered in cause the action of the trial court in peremptorily No. 2060, which was not included in said an- instructing a verdict for appellees. The case swer, whereby a nonsuit was granted plain- has been ably presented in this court by tiff, and said cause was dismissed without briefs and arguments on behalf of each side. prejudice to her rights, and plaintiff alleged Counsel for appellees do not contend that that said judgment of nonsuit without preju- the charge complained of was properly given dice was the sole and only order or judgment for any reason other than those incorporated having the effect of finality in said cause, and that there was nothing in any of the proceed-in the charge and repeated in the trial judge's ings or orders entered in said cause having the findings of fact, and therefore, and as no effect of or being res judicata to this action. other reason for sustaining the charge has "Plaintiff further replied by denying all al- occurred to us, this opinion will be limited. legations of defendants North Texas Trust to a consideration of the four propositions Company to the effect that she had permitted upon which the court predicated the charge. R. W. Kuehn to make representations to said. [1] I. The first and perhaps the most imcompany of the good and perfect title to the portant question is that of res judicata, lands in controversy, and denied that she knew which arises upon the following undisputed that such representations were made, and stated further that if they were made, in fact, it facts: On the 19th of July, 1916, Mrs. Emma was without her knowledge or authorization. Kuehn, appellant in this case, filed in the disShe specially denied that she had been guilty trict court of San Saba county a suit against of any undue delay or of laches in the prosecu- R. W. Kuehn and J. E. Odiorne, in which the tion of this suit, or in the assertion of her plaintiff asserted substantially the rights and equities in the lands involved herein. cause of action that is asserted in this case. "Trial was had before the court without the That suit was No. 2060 on the docket of that aid of a jury on the issue of res judicata. All court, and will hereafter be so designated in other issues were presented to the jury in due this opinion. On November 14, 1916, the trial order of pleading and evidence, and upon the conclusion of the introduction of evidence the court, after hearing argument upon the decourt granted the defendants North Texas fendants' exceptions to plaintiff's petition, Trust Company and R. W. Kuehn's request for made the following entry upon the trial an instructed verdict in favor of defendants, docket: and gave to the jury such requested instructions, as follows: 'Gentlemen of the jury, it being conclusively shown: (a) That plaintiff (a) That plaintiff is estopped, as to the defendants North Texas Trust Company and R. W. Kuehn by a former judgment, involving the matters here in controversy; (b) that plaintiff is estopped as to the defendant North Texas Trust Company, by reason of her act and conduct in executing the instruments and deed of conveyance placing the title to the lands in controversy in defendant R. W. Kuehn, against which the said North Texas Trust Company fixed a lien upon the faith of such instruments and deed; (c) that there is no evidence of fraudulent statements inducing plaintiff to execute the instruments sought to be canceled; and (d) that there is no evidence that J. E. Odiorne, who procured the execution by plaintiff of the instruments sought to be canceled, was the agent and representative of R. W. Kuehn-you are directed to return the following verdict: "We, the jury, find for the defendant, North Texas Trust Company, and R. W. Kuehn." tained. Plaintiff excepts to ruling of the court "Defendants' special exception No. 1 susand refuses to amend her petition, but gives notice of appeal." There was no judgment entered upon the minutes of the court at that time, but on November 11, 1919, in considering a motion made by the defendant R. W. Kuehn to enter in cause No. 2060 a judgment nunc pro tune, the following order was made and recorded in the minutes of the court: "No. 2060. Emma Kuehn v. R. W. Kuehn. "On this the 11th day of November, A. D. 1919, coming on to be heard the motion of defendant R.. W. Kuehn to have entered in the above entitled and numbered cause a judgment nunc pro tune sustaining the defendant R. W. Kuehn's special exception No. 1 to plaintiff's original petition and dismissing said cause in which motion the North Texas Trust Company had, at a former day of this term, "Upon which instructions a verdict was ren- November 10, 1919, joined for the purpose of [2] It would be difficult to give in fewer words a better definition than Blackstone has given of a judgment, which he defines as the sentence of the law upon the matter contained in the record. In order to constitute a final judgment, the record must affirmative said motion by request made and permission, dered at a former term; but it is contended, granted in open court, and adopted said motion on behalf of appellant, that the order which as its own, when came the defendants R. W. the court required to be entered upon the Kuehn and the North Texas Trust Company minutes does not show that a final judgment and the plaintiff, Emma Kuehn, by their respec- was rendered in the case. After careful contive attorneys of record, but before announcing for trial or answering to said motion the sideration, we have reached the conclusion plaintiff in open court asked permission of the that the contention referred to is correct. court to take a nonsuit in said cause, which permission was then refused by the court, and to which action of the court the plaintiff then and there excepted, and also before any announcement of ready for trial upon said motion by any of the parties thereto the said North Texas Trust Company, by its attorney, requested and was granted leave of the court to with-ly show, not only that the court expressed its draw their motion as joinder, whereupon the opinion as to the merits of the case, but that plaintiff filed her answer to said motion, con- it awarded the judicial consequences which sisting of general and special exception, general denial and countermotion, and the defendant R. W. Kuehn and the plaintiff, Emma Kuehn, announced ready for trial upon said motion and answer thereto. "And the court, after hearing the reading of said motion and the exceptions of plaintiff and plaintiff's answer to said motion, is of the opinion that all of said exceptions should be, and they are, overruled by the court, to which plaintiff excepted; and after hearing said motion and evidence upon the same the court is of the opinion that said motion should be sustained, and it appearing to the court that on the 14th day of November, 1916, at a regular term of this court, the following judgment and entry was made by the court upon the trial docket of said court after hearing argument of counsel, to wit: 'Defendant's special exception No. 1 sustained. Plaintiff excepts to ruling of the court, and refuses to amend his petition, but gives notice of appeal'-it is therefore ordered by the court that the clerk of this court do enter upon the minutes of this court this order sustaining said exception, and the same be entered now as of November 14, 1916, and at the same time plaintiff renewed her motion to dismiss this cause No. 2060 from the docket of this court without prejudice to plaintiff's interest, and, the same being considered by the court, the court is of the opinion said nonsuit by the plaintiff should be granted. It is therefore ordered and decreed by the court that said cause No. 2060 be, and the same is, dismissed from the docket of this court without prejudice to plaintiff's rights, to which ruling of the court permitting plaintiff to take a nonsuit defendant R. W. Kuehn excepts." Although the North Texas Trust Company was not a party to that suit, it claims under its codefendant, R. W. Kuehn; and therefore, as no appeal was taken from the action of the trial court in the disposition of cause No. 2060, if that constituted a final judgment, then the matters sought to be litigated in this case are res judicata and barred by that judgment. The crucial test is: Was that a final judgment? It is not, and cannot successfully be, denied that it was proper for the trial court in the nunc pro tunc proceeding to require the clerk to place upon the minutes whatever order or judgment the court had made or ren it held that the law attaches to the facts. It has been repeatedly held in this state that merely sustaining a demurrer to the plaintiff's petition, where the court makes no further order, does not constitute a final judgment. In Warren v. Shuman, 5 Tex. 441, the entry of what was termed the decree, after the usual preliminary statements, proceeded as follows: "The jury returned the following verdict, to wit: 'We, the jury, find for defendant. J. H. Polly, Foreman'-whereupon it is ordered, adjudged, and decreed by the court that the defendant do recover of the plaintiff and his securities, for the use and benefit of the officers of the court, all the costs in this behalf expended, and that execution issue therefor." Chief Justice Hemphill, speaking for the court, said: "An objection fatal to the exercise, of the revisory jurisdiction has presented itself, in the fact that no final judgment was rendered in the court below. The judgment does not show a disposition of the subject-matter of the controversy. It furnishes no evidence of the result of the dispute. There is no sentence pronounced upon the matters contained in the record, for one party or the other. There is a verdict for defendants. Upon this [verdict] should have been entered a corresponding judgment that the plaintiff take nothing by his suit, or that the title of defendants to the lands be confirmed, or any equivalent order, which, on the facts as found, would afford the relief appropriate to the law of the case. There is judgment for costs only. The appeal must therefore be dismissed for want of jurisdiction." Bradshaw v. Davis, 8 Tex. 344, was similar to Warren v. Shuman just referred to, and the Supreme Court said: "The judgment, entered in the cause, was not final, and that consequently the appeal was prematurely taken. The judgment upon the verdict should have been that the original petition be dismissed, or that plaintiff take nothing by his suit, or that the defendants go hence and be discharged without day, etc., or expressions of equivalent import should have been used, showing that the subject-matter of the contro (232 S.W.) versy had been determined, and that in favor of the defendant. *** The appeal is dismissed." In Fitzgerald v. Fitzgerald, 21 Tex. 415, there was a verdict for the defendant, upon which there was a judgment for costs only, and the court held that it was not a final judgment, and dismissed the appeal. In Scott v. Burton, 6 Tex. 322, 55 Am. Dec. 782, the Supreme Court said: "The form of the judgment is immaterial; but in substance it must show intrinsically and distinctly, and not inferentially, that the matters in the record have been determined in favor of one of the litigants, or that the rights of the parties, in litigation, had been adjudicated." In that case a jury had returned a verdict for the defendant, and the court rendered judgment in his favor for the costs, but made no adjudication as to the rights of the parties, and the Supreme Court held that there was no final judgment, and dismissed the appeal. In Hancock v. Metz, 7 Tex. 177, the SuIn Hancock v. Metz, 7 Tex. 177, the Supreme Court said: In that case it was held by the Supreme Court that, where defendant's exceptions to plaintiff's petition are sustained, and no entry is made finally disposing of the case and dismissing the petition, the court has power, at a subsequent term, to enter final judgment in favor of the plaintiff, and, if such judg ment is inconsistent with the order made on the exception, the order must give way to the judgment, instead of limiting its effect; and, in dealing with the question of the finality of the judgment, the court, speaking through Mr. Justice Williams, said: "If the proposition that the judgment upon demurrer was a final adjudication of the cause were true, it would undoubtedly follow that, after the adjournment of the term at which it was rendered, the court would have had no such jurisdiction over the parties or the subject-matter of that suit as to empower it to render, upon the issues of that cause, any further judgment affecting them. It is equally true that a failure to enter the order or judgment of the court upon the minutes does not change the attitude of the case; for, when the controversy arose, it was unquestionably competent for the court to supply the omission, and to make such entry nunc pro tunc as would properly represent the action previously taken. We shall therefore treat the case as if the proper entry upon the minutes had been made in January, 1895. We cannot agree, however, to the proposition that the action then taken by the court was a final disposition of the case, or of any issue in it, as to any party to it. The entry made was nothing more than the recorded expression of the ruling of the court sustaining the exceptions. If the dismissal of the case should have logically follow "In this cause, on the issue made between the parties, the jury found for the defendant; and the judgment of the court upon the verdict was that she should have and recover her costs from the plaintiff. We have repeatedly decided that such a judgment did not determine the matter in controversy; that it was no such final judgment as would authorize an appeal. There should have been a decree or judgment that the plaintiff take nothing by his suit, and that the defendant go hence without day. As was said in Scott v. Burton, * ** the form of the judgment is immaterial; but, in sub-ed from the ruling made, it was nevertheless stance, it must show intrinsically and distinctly-and not inferentially-that the matter on the record had been determined in favor of one of the litigants, or that the rights of one of the parties, in litigation, had been adjudicated." And it was there held that, as no final judgment had been rendered by the trial court, the Supreme Court had no jurisdiction. The foregoing cases are not precisely analogous to the case at bar, inasmuch as the trial courts had not sustained exceptions to the petitions, as was done in this case. But they have been cited and quoted from for the purpose of showing that there is no final judgment in any case until the court has, by affirmative action, applied the law to the facts and pronounced a judgment in favor of one and against the other party to the litiga essential to the finality of the action of the court that it should have declared such consequence by the judgment pronounced. It is not sufficient to constitute a final judgment that the court make a ruling which should logically lead to a final disposition of the case, but the consequence of the ruling to the parties must be also declared. One of the accepted definitions of a final judgment is that it is 'the awarding of the judicial consequences which the law attaches to facts.' Hanks v. Thompson, 5 Tex. 6; Bradshaw v. Davis, 8 Tex. 344; Warren v. Shuman, 5 Tex. 449. Should it be conceded, therefore, as contended by defendant in error, that a dismissal of the cause, or a final judgment in favor of Mrs. Winter, at least, properly followed from the ruling on exceptions, it cannot be admitted that the court by its judgment so declared and adjudicated. It is not enough to make a final judgment that we can see that the court ought to have rendered one. What the court did must have amounted to a final determination of the rights. of the parties resulting from the ruling made. In the case of Andrews v. Richardson, 21 Tex. 295, an order was entered that, if the plaintiff should not amend his petition by the first day of the term next succeeding the order, the case should be dismissed. The plaintiff did not "Exceptions of defendant to plaintiff's peti- amend his petition by the given time, but did tion sustained. Plaintiff excepts." amend later; and after such amendment and |