Roberts, Chief Justice.
In the trial of this case in the District Court, a jury was waived, and, both matters of law and matters of fact being submitted to the judge presiding, judgment was rendered for the plaintiffs, who are appellees in this court.
There is no question but that the land in controversy is the property devised by Mrs. Scott to her children, who are the plaintiffs. Was it her separate property that was so devised ? The evidence showed that the husband, J. J. Scott, having become insolvent in Virginia, his property was sold; and that some of the negroes that were sold were purchased [189] by her brother, and they, with other means, were given by him to his sister, for the purpose of securing her a home and a provision for a livelihood in Texas. It does not appear what portion of this property, if any, was applied to the purchase of the land in controversy; and if it had been by the laws of Virginia, such a gift there would not make it separate property of' the wife. It is unnecessary to consider what would have been the result of a gift of specific property, to take effect by being invested in a homestead for her in Texas. This evidence, however, in connection with that which shows that J. J. Scott was largely indebted, will serve to explain why the title to the land was taken in her name, and that it was to make the land her separate property. If it had been shown that, the money paid for the land was his separate property, the deed being taken in her name would raise a presumption that it was a gift by him to her, so as to make it her separate property. (Smith v. Strahan, 16 Tex., 321; Id., 286.) Though the same presumption might not be raised if it had been shown to be community property, still that result might be reached by other additional facts, such as his declared intention to make it her separate property, and his continued recognition of it as hers, which was shown in this case. (Story v. Marshall, 24 Tex., 307; Higgins v. Johnson, 20 Tex., 393.) He must have been cognizant of the fact that the deed was made in her name, which, we may reasonably conclude, was done at his instance; he represented it to others as her separate property, and it was so regarded by the neighbors; he caused her will to be written, in which it is treated as her separate property; he had it probated, and received and acted upon letters of executorship under her will; permitted the children to manage the property in pursuance of the objects of the will, returned an inventory of it under the will, and sold to the defendant Baldridge as executor of his wife’s will, assuming to act under the power conferred upon him in the will. As to Baldridge being a purchaser from-him in such capacity, the evidence establishes it to have been [190] her separate property, by virtue of its having been at least a gift from the husband to the wife, or an appropriation to her of the property, freed from any claim on his part of any interest on account of its- being purchased with community property, or with his separate property.
The next question is,—Did he have power under the will to sell the land to the" defendant ? The will did not vest the property of her estate in him, with a trust for its management, but vested it directly in the children, with the specifically-declared object of their support and education, and conferred on him a power of management, control, and disposition, at discretion, for that object. The power was without restriction in terms; and if the land had been sold fertile purpose of changing the residence of the children, and as good or a better place had been bought for them with the means, his authority to have done so would hardly have been called in question.
Without, therefore, any critical examination of this question, which has been ably argued on both sides, we may pass on to the consideration of the third question, which is,—Was the land fraudulently sold for an object not in pursuance of the will, and did the purchaser have notice of that fact when he bought the land ? A purchaser cannot make a valid contract with one who sells to him under a power, when he has notice that the sale is fraudulently made for a different purpose than that for which the power was given, by which he will aid in the perpetration of the wrong done to others. The evidence that J. J. Scott had gone into merchandise as a business the year before the sale, that he was in great need of the money, and that he immediately started with it to blew York, establishes the fact clearly that his object then was to turn the estate into merchandise, and use the money for which the land sold for that purpose, which was an object certainly not contemplated in the will, but directly contrary to its express terms. That Baldridge had notice of such intended perversion of the most valuable part of the estate, is not directly [191] proved. Still there were circumstances tending to prove it, of sufficient weight to raise a reasonable presumption in its favor. The defendant must be held to have known the terms of the will, which was of record, under which he took his title to the land; and, being a near neighbor, he must have known that the children had been living on the farm, managing it, and making on it good crops for their support, which was the leading object of the will, as expressed in it; that J. J. Scott had established himself as a merchant at a different place from the farm, and was offering to sell the farm, and did sell it for cash in hand at a reduced price, and in no part of the transaction was there any expression used, as shown by the evidence, that the sale was made for an object consistent with the objects of the will. The report of the negotiations for the sale excited the apprehensions of the neighbors that a wrong was about to be done to the children, for which they would seek redress by suit, of which the defendant was warned before the sale was consummated. That doubts of J. J. Scott’s right to make such a sale were present in the minds of the parties at the very time the deed was signed, is evidenced by the offer of J. J. Scott to transfer to the defendant a note given by his wife for the land, (that had been paid,) in order to secure him a lien on the land, if his title should fail. The strong expressions of Baldridge, both before and after the trade, show that he was taking a speculative risk of a doubtful title. It is difficult to understand why this trade should have attracted the attention of the neighbors, and have excited the apprehensions of the parties concerned of its legality, upon any other supposition than that it was known to others, as well as to Scott and Baldridge, that the sale was being made for a purpose other than that which was contemplated in the will. It could not be otherwise than that such a family as these children constituted would excite the sympathy of any good community. And if it had not been generally understood that their home, left them by their mother for their support, was about to be sac[192] rificed, and the proceeds of it diverted to a purpose foreign to the objects of her will, this trade could hardly have excited the apprehensions and elicited the interest which the evidence shows it did, and reasonably should have done, under the circumstances. The plaintiffs, in their amended petition, charge collusion and fraud in the sale, and notice of it to the defendant; and notwithstanding the various circumstances proved tending to establish it, the defendant offered no evidence, not even his own testimony, to rebut it, and show his want of notice. This, though negative in its character, adds weight to the affirmative evidence in support of it. It was shown that the plaintiffs never received any part of the purchase-money, or other benefit from the sale, and that their father died insolvent.
The facts having been submitted to the judge, and he having found in favor of the plaintiffs, his finding will be regarded with the same presumption in its favor as though the facts had been found by a jury. We cannot say that the finding was erroneous, under the evidence adduced upon the trial.
The judgment is therefore affirmed.
Affirmed.
On Motion for Rehearing.
The foregoing opinion was delivered on the 12th of June, 1877. The minutes of the court were read in open court for the first time, as appears from the clerk’s certificate on file, on the 15th of June. The motion for rehearing was filed on the 28th of June. The act of May 2, 1874, authorizes a party to apply for a rehearing, on filing his motion therefor within fifteen days after the date of the entry of the judgment or decision of the court. ’
Sayles & Bassett, for the motion.—On the proposition that the motion was in time, they cited O’Connell v. The State, 18 Tex., 343; Johnson v. Smith, 14 Tex., 412; Smith v. The [193] State, 1 Court of Appeals, 411; Price v. Likens, 23 Tex., 635; Miller v. Richardson, 38 Tex., 500; Hagler v. Mercer, 6 Fla., 721; Tonge v. Broxon, 23 Ala., 684.
A rehearing in this case is asked, upon the ground that the decision of the court is based upon a question of fact, not raised by the pleadings, not considered by the court below in forming its judgment, and not alluded to by counsel upon either side in the briefs filed in this court.
There may be in the record evidence sufficient to support a finding of the court below upon this issue, had it been made. But, in the absence of any pleadings under which the evidence could be considered, we insist that injustice is done the appellant in affirming a judgment upon an issue that was not considered, and could not have been considered, by the district judge. As to this issue, the appellant has never been heard.
In coming to their conclusion, it is evident that the court did not carefully examine the pleadings in the case, to ascertain from them what issues were submitted to the judge. “Facts not put in contestation by the pleadings, cannot be proven; and if proven, cannot from the basis of a judgment.” (Ramsay v. McCanley, 2 Tex., 190; Hall v. Jackson, 3 Tex., 310; Guess v. Lubbock, 5 Tex., 540; Paul v. Perez, 7 Tex., 338; McGreal v. Wilson, 9 Tex., 426; Chrisman v. Miller, 15 Tex., 160; Dennison v. League, 16 Tex., 407; Pyron v. Grinder, 25 Tex. Supp., 159.)
The evidence commented upon by this court was admissible under the pleadings, but for another and very different purpose. The plaintiffs denied the authority of Scott, under his wife’s will, to sell the land. Appellant insisted upon Scott’s authority to sell; but if that authority was denied, claimed the equity arising from the transfer to him of the purchase-money paid by Scott, and also that he was a purchaser in good faith. His “good faith” in the purchase, to protect his improvements, became material, if it should be held that the sale was not authorized by the will.
In the entire brief of counsel, which is deservedly com[194] plimented by this court, there is not an allusion to the fact that the sale was fraudulently made, for an object not in pursuance of the will, and that appellant, when he purchased, had notice of the fact; nor do they intimate that such an issue was raised by the pleadings, or decided by the court below.
From the statements of the case made by opposing counsel, it may, we think, be fairly inferred, that the evidence of appellant’s participation in the supposed fraudulent purpose of the executor, in exercising his power under the will, was not considered by the court, and did not influence its decision; but that, on the contrary, the judgment was based wholly upon the supposed want of power to sell.
No issue as to the fraudulent sale of the land, for an object not in pursuance of the will, and with the knowledge of the purchaser, is presented by, or even hinted at in, the pleadings.
The original petition is in the ordinary form used in the action of trespass to try title. By an amendment filed July 14,1873, plaintiffs set out the title under which the defendant claims the land, and allege the grounds of its nullity.
The allegations of this amendment are made the basis of the argument of appellees’ counsel in this court; and in neither is there even a suggestion that the sale was made for the purpose of enabling Scott to convert the funds to his own use, or that the appellant had knowledge of such fraudulent purpose, if any such existed.
The charge in the petition, that the sale was fraudulently and collusively made, relates to the pretended probate of the will, the filing of the pretended inventory, and the making of the pretended sale and conveyance, when Scott and appellant well knew that under the will there was no authority to sell the land.
The question upon which the decision of the case is made to rest, is for the first time suggested in the opinion of this court, and inferences thought to be warranted by portions of the evidence offered for other purpose are used to support a [195] finding of the court below, when it is apparent that no such finding was ever made.
Appellant insists that he has a right to have this issue determined by that tribunal whose province it is to determine issues of fact, and that he should have an opportunity to meet the issue now suggested, which by the pleadings in the case he was not called upon to meet on the former trial.
Breedlove & Ewing, contra.—The motion comes too late. In this case, the opinion was delivered and the “ judgment pronounced in open court” on the 12th of June, 1877, and the application for rehearing was filed June 28, more than fifteen days afterwards.
The rendition of a judgment is a judicial act; its entry upon the record is merely ministerial, and may take place at any time afterwards. (Freeman on Judgments, sees. 38, 40, 67.)
But in the case at bar this inquiry is not material; for this judgment was rendered, and properly entered on the minutes of the court, on the 12th day of June, more than fifteen days before the application for a rehearing was made. Appellant’s counsel argue that the motion was in time, because it was filed within fifteen days after the minutes embracing this judgment were read in open court. This does not appear from the record, but is shown by a certificate of the clerk. The statute, however, says nothing about the reading of the minutes; it is the entry of the judgment.
A number of authorities are cited in support of the proposition that “ facts not put in contestation by the pleadings cannot form the basis of a judgment.” But it seems that the issue of fraud was put in contestation, and the next paragraph admits that the evidence commented upon by this court was admissible under the pleadings. With what reason, then, can it he insisted that the judgment is based upon facts not put in issue ? If “ there is in the record evidence sufficient to support the finding of the court below upon this issue,” [196] and. if “this evidence was properly admissible under the pleadings,” this court could scarcely do otherwise than affirm the judgment.
But it is said that while this evidence was admissible, yet it was “for another and very different purpose.” We insist, however, that as this proof was admitted without objection, in support of the averments of the plaintiff’s petition, it was properly before the court for all purposes, and must be taken for all it is worth.
The question of fraudulent intent is one of fact, to be submitted to the jury, and they are the judges of the weight and amount of evidence necessary to establish it. (Briscoe v. Bronaugh, 1 Tex., 339; Jernigan v. Wainer, 12 Tex., 193; Wells v. Barnett, 7 Tex., 587.) In the case at bar, the court having been substituted for the jury, its decision upon the facts has the same conclusive effect as the verdict of a jury. (Jordan v. Brophy, 41 Tex., 283; McFarland v. Hall, 17 Tex., 690; Gilliard v. Chessney, 13 Tex., 337; Rich v. Ferguson, 45 Tex., 399.)
For the reasons we have given,—first, because the motion was not made in time; second, because a rehearing cannot be granted after the term, the judgment having become final; and, third, because the application presents no meritorious ground for reopening this case,—we respectfully ask that the motion be refused.
On Rehearing.
Roberts, Chief Justice.—It is contended that this motion for rehearing is in proper time, having been filed within fifteen days from the time the minutes of the judgment entry were read in court by the clerk, though not within fifteen days of the time the judgment was pronounced from the bench. The judgment was pronounced on Tuesday, and the minutes were read on the succeeding Friday.
It must be presumed that the judgment entry was made on the day the judgment was pronounced, and to take effect from [197] that date, so far as this motion is concerned, unless the judgment entry was suspended by the order or direction of the court, of which there is no evidence in this case.
The statute confers the right to one party to make this motion “ within fifteen days after the date of entry of judgment or decision of said court”; and to the other, the right to be allowed five days, after service of notice of the motion, before the motion shall be heard and determined. (General Laws, 14th Leg., page 215.) The party in this case stands upon the right conferred, without making any showing why the motion was not sooner made.
There might be such circumstances of excuse, for not having made the motion, as would induce the court to entertain the motion, though made after the expiration of the fifteen days, if made during the term at which the judgment was rendered. Or the nature of the error into which the court may have fallen might be such that the court, upon being informed of it, or upon discovering it, would during the term correct the error, and, if necessary, set aside the judgment rendered.
We have again looked into this case, to ascertain if there has been any such error.
The point made is, that the pleadings did not put in issue the question of fraud, in exactly the view in which it is presented in the opinion of this court, in deciding the case. In support of this, the brief of opposite counsel is referred to as relying mainly upon another and different view of the case.
The case was submitted to the judge upon the trial, both upon the facts and the law, and he decided upon the facts and law, with reference to the issue made by the pleadings, in favor of the plaintiffs. We have no means of ascertaining the exact views of the judge, if that were material, otherwise than by the transcript of the record as it is presented in this court.
The question presented to this court was,—Can this court say, and point out wherein, the record does not present an [198] issue in the pleadings, and facts sufficiently to sustain it, which will support the judgment of the court rendered in the District Court ? That was by no means a plain question, of easy solution. After repeated examinations of the record upon that question, the conclusion was arrived at that we could not. We now, upon a full examination, are still satisfied with that conclusion.
The motion is dismissed, at the cost of appellant, because not filed in time; the suspension of the judgment, ordered at Austin at the last term, is revoked, and the clerk of the Supreme Court at Austin is ordered to issue a mandate forthwith thereon; and it is ordered that this judgment, with the papers and opinion, be sent to the clerk at Austin, to be there entered by the clerk of said court as a judgment of the last term of the Supreme Court at Austin, and the clerk here will send, with a certified copy of the proceedings in this court, a copy of the bill of cost in this court.
Motion overruled. .
[This case was submitted and decided during the Austin Term, 1877, and was taken to Tyler, and there finally disposed of, on the motion to rehear, on the 16th November, 1877.]