WILLIAMS, Associate Justice.
Certificate from the Court of Civil Appeals for the First District, as follows:
“James B. Snowball brought this suit, as by bill in equity, to set aside a sheriff’s sale, under execution, of real estate to the defendant, L. E. Moore, on account of attendant irregularities which it was alleged had conduced to sacrifice the property for a grossly inadequate price, the petition expressly affirming the title, both legal and equitable, to be in the defendant, L. E. Moore, the purchaser at such sheriff’s sale, but seeking, as a matter of affirmative equitable relief, to regain such title on account of the equity mentioned, as would be by reconveyance in equity. The city of Houston and James Snowball, the plaintiff’s father, were joined as defendants; but the former disclaimed, judgment being entered as to it accordingly, and the latter, by a cross-petition, set up as to himself the same allegations made by the plaintiff, and became in effect a coplaintiff. The defendant, L. E. Moore, answered, so far as necessary to state, by general denial, by plea in bar of former
TecoYevj
as res adjudicata, by plea of improvements in good faith, and by cross-plea for recovery. The plaintiff and cross-plaintiff replied by first supplemental petition, denying generally the averments of the answer, and .specially pleading claim for rents from the premises, and that, in so far as the alleged former suit rested upon the cross-action therein, said plaintiffs had neither been cited nor appeared thereto, and that no guardian ad litem had been appointed therein for the plaintiff James B. Snowball, who was then a minor. The defendant, L. E. Moore, by first supplemental answer, put in a general denial to said supplemental petition. The case was tried with a jury and resulted in a verdict and judgment for said plaintiffs on January 17, 1903, awarding to them the equitable relief sought in respect to their alleged interest in the land, such interest being a life interest of a third in the whole to the cross-plaintiff, James Snowball, and a third interest in fee simple to the plaintiff James B. Snowball, subject to said life estate, but upon condition of said plaintiff’s returning $1139.46 towards the purchase price paid by defendant, L. E. Moore, he recovering at the same time $424 for his share of the rents, and upon condition of said cross-plaintiff’s returning $619.73 towards the purchase price paid by defendant, L. E. Moore, he at the same time recovering $1272 as his share of the rents. The judgment offset the rents against the return payments, and directed, as to the plaintiff, that he pay the balance remaining, with 6 per cent per annum interest thereon from date of judgment, into the registry of the eourt within ten days after filing of the mandate of the appellate court, if an appeal was taken, and as to the cross-plaintiff, that he recover the balance remaining in his favor from the defendant, L. E. Moore, with interest at 6 per cent per annum from the date of the judgment. The
verdict found that the defendant, L. B. Moore, was the owner in fee simple of the remaining undivided interest of said real estate, and the decree adjudged‘that partition be made in the usual manner, commissioners being appointed therefor," but to be so made that the defendant’s improvements should go to her, if it could be done without prejudice to the interests of said plaintiffs.
“The material facts disclosed by the record are these: The property in controversy was the separate property of Mary A. L. Snowball, deceased, and at her death the fee simple title to same descended to and vested in her three children, Daisy Dean McKinney, Lilian B. Bisher, and the plaintiff James B. Snowball. The cross-plaintiff, James Snowball, is the surviving husband of said Mary Snowball, and upon her death became entitled as such survivor to an estate for life in one-third of said property. In 1898, after the death of Mrs. Snowball, the city of Houston brought suit against her heirs above named to recover taxes due said city upon said property and to foreclose the tax lien for same. On May 12, 1898, a judgment was rendered in said suit in favor of the plaintiff for the sum of $1572.30 and foreclosing the tax lien. In accordance with this judgment an order of sale was issued and in pursuance thereof the property was sold on the first Tuesday in August, 1892, at public outcry before the courthouse door of Harris County. At this sale the appellant, L. B. Moore, became the purchaser for the sum of $1600, which amount she paid to the sheriff, and received his deed for the property. This deed is in the usual and proper form and was duly recorded in the deed records of Harris County. Subsequent to this purchase at sheriff’s sale the appellant procured from Mrs. McKinney and Mrs. Bisher a conveyance of their interest in the property. Kotices of the sheriff's sale were posted as required by the statute, but no notice of same was served upon either of the appellees, both of whom lived in Harris County at that time. The property consisted of various lots and parcels of land, but the improvements thereon and the purposes for which the property was used were such as to prevent its being sold advantageously by separate lots, notwithstanding this fact it was sold in separate parcels according to artificial lot lines. At the time of this sale the fair market value of the property was $17,000. The homestead of appellee James Snowball had been established upon a portion of this property for thirty years and he and the appellee James B. Snowball, who is a minor, were occupying said homestead at the time of the sheriff’s sale, and continued to occupy same until dispossessed by the sheriff at the instance of the appellant, neither of the appellees had any knowledge or notice of said sale until some time after it had occurred. Had they known of the sale they would have endeavored to secure the money to pay off the lien, and failing to do this they would have demanded a publication of notice of the sale in a newspaper and may have thereby obtained more bidders at such sale, and would have required the property to have been subdivided and sold with reference to the improvements and not by artificial lot lines. On
the 24th of August, 1893, appellee James Snowball, for himself and as next friend of the minor appellee, brought a suit in the District Court of Harris County against L. E. Moore, the appellant herein, the city of Houston and R. R. Anderson, sheriff of Harris County, to recover the identical property which is the subject matter of this suit. The petition in that suit, in addition to the usual allegations of a petition in trespass to try title, alleged that the judgment obtained by the city in the tax suit was void because no citation had been served upon the defendants in said suit. It was further alleged that said judgment and the order of sale issued thereon were void for the reason that the judgment and order of sale directed that the property be sold in bulk for the whole amount of taxes adjudged to be due thereon, notwithstanding a portion of said property was the homestead of plaintiffs and could ■not therefore be lawfully sold to satisfy the taxes due upon the remainder of said property. It was further alleged that the tax judgment and the proceedings had thereunder constituted a cloud upon the plaintiff’s title. The prayer of the petition was for the cancellation and annulment of said judgment and all proceedings thereunder, and for a perpetual injunction against any attempt to enforce same, for the recovery Of the title and possession of the property and for equity and general relief. To this petition the defendant, L. E. Moore, answered by general denial and plea of not guilty and by plea in reconvention in which she claimed title to the property in controversy and prayed that the same be adjudged to her. Upon the trial of this case judgment was rendered by the District Court that the plaintiffs take nothing by their suit, that the defendant recover the title and possession of the property and that all the right, title and claim of plaintiffs in and to said property be devested out of them and vested in the defendant, ,L. E. Moore. This judgment was rendered on the 21st of November, 1898, and was-never set aside or appealed from. In the suit in which this judgment was rendered neither the pleadings nor evidence raised the issue of the invalidity of the sheriff’s sale under which the defendant claimed title to the property by reason of any irregularities in such sale, the only attack made upon the sale being incidental and dependent upon the alleged nullity of the judgment and order of sale issued thereon. Ho service of notice of the cross-bill or plea in reconvention set up by defendant in that suit was had upon the plaintiffs, and no guardian ad litem was appointed to represent the minor plaintiff, James B. Snowball, in defense of such cross-bill, and no appearance or answer was filed therein, but the plaintiff James Snowball knew that said plea in reconvention had been filed in said suit.
“Upon the foregoing statement of the pleadings and evidence in the above styled and numbered cause pending in this court on appeal from the District Court of Harris County, we respectfully certify for your decision the following question:
“Do the facts stated sustain the appellant’s plea of res adjudicata?”
In the former action the ultimate issue was one of title to the land
in 'controversy. To sustain this plaintiffs charged that the judgment ahd> in consequence, the sale founded on it, were void, leaving their title unaffected. As the judgment affected them in other ways than in its operation upon their title, they sought a judicial declaration of nullity against it, and against the sale as dependent on it. No attack was made upon the sale for any vice peculiarly affecting it. This was the utmost scope of that action. Whether the special allegations designed to show the invalidity of the judgment were sufficient or not they asserted no other cause of action. The answer and plea in reconvention raised no other issue but that of title made by the petition, and did not enlarge the scope of the issues. Hoodless v. Winter, 80 Texas, 538; Shepard v. Cummings, 44 Texas, 502. A finding that the judgment was not void necessarily led to a judgment in favor of the defendants. In the present proceeding the plaintiffs concede to the defendants all that was denied in the former, admitting that the judgment and sale were not void and that the title passed to and is still in the defendants; and attack the sale upon grounds which affect it alone, and which would not have sustained a claim of title in plaintiffs but simply entitle them to a judgment setting the sale aside and restoring their title upon compliance by them with certain equitable terms and conditions. Different evidence is necessary to sustain the two actions, and different judgments are applicable to them, one- in favor of the plaintiffs in this case being entirely consistent not only with the correctness of that rendered in the former, but with any that might have been rendered therein on the issue of title had it been unrestricted by special allegations. That the relief now sought could have been obtained under the pleadings in the former action will not be claimed. On the other hand, it must be admitted that, by appropriate pleading, the plaintiffs might have joined together the cause of action which they attempted to set up and that which they now assert, and, by alternative prayer, could have enforced the latter where they failed in the former. This is true partly because of the abolition of the distinction between law and equity and partly because of the liberal allowance in our law of the joinder of different causes of action, whether legal or equitable. Upon an issue of title the plaintiff or defendant may, of course, recover upon that which constitutes a title, whether it be legal or equitable; and it may be that in support of such an issue, any title of either kind which the party has must be adduced. Judgment on the merits settles the title and neither party will be heard afterwards to say that he had a title which he did not adduce,' whether his failure was due to the condition of his pleading or his evidence. But the attempt here is to setup that which was not a title, which was inadmissible in evidence upon the issue of title, and which constitutes, as it has been defined by the decisions of this court, a cause of action different from that formerly adjudicated. The question therefore is, were the plaintiffs bound to assert it, because it was a right respecting the property sued for, and one which the law regulating joinder of actions permitted them to con
nect with their former action, or otherwise have it cut off by the judgment in favor of the defendants on the issue of title? It is claimed that they were, upon the principle so often and so broadly laid down that a judgment “is not only final as to the matter actually determined, but as to every other matter which the parties might litigate in the cause and which they might have had decided.” Foster v. Wells, 4 Texas, 104; Nichols v. Dibrell, 61 Texas, 541; McAninch v. Freeman, 87 Texas, 132. This we understand to mean only that all matters which properly belong to a cause of action asserted in the pending suit such as will sustain or defeat, in whole or in part, that cause of action, must be produced or be barred by the judgment, and not that all the different causes of action a party may have respecting the same property must be joined, because they may be, in one proceeding. To illustrate this, if the plaintiffs in the former stiit could have shown some other title to the property, or that the judgment or sale was absolutely void for some other reasons than those set up, they could not now aver them, because the title and the nullity vel non of the judgment and sale were put in issue, and anything that would have established either would have established plaintiffs’ title; and they were bound to bring forward all such matters. Werlein v. New Orleans, 177 U. S., 401. But to so apply this doctrine as to embrace within an adjudication of the title to property every cause of action which the party had at the time of its rendition respebting such property, when only one of them was set up, would, in view of the liberality of our law allowing joinder of actions, be equivalent to saying that but.one suit about the same property can be prosecuted to judgment upon its own merits between the same parties, a proposition no one will assert. Under such a conception of the law a plaintiff who had been defeated in an action of trespass to try title would not be allowed afterwards to show that that which he had supposed to be a title was only a mortgage, and to foreclose it, or that, though not entitled to recover the land, he was entitled to the enforcement of a vendor’s lien, or to specific performance of an executory contract. For under our procedure a plaintiff, in doubt as to his true rights, might seek to recover land upon an allegation of title, and, in the alternative, to enforce any one of these supposed claims, or many others that might be instanced. Courts and text writers have often found it necessary to so qualify the broad statement of the rule above quoted. In the case of Aurora City v. West, 7 Wall., 102, Mr. Justice Clifford thus states the doctrine: “Where every objection urged in the second suit was open to the party
within the legitimate scope of the pleadings
in the first suit, and
might have been presented in that trial,
the matter must be considered as having passed in rem judicatam.” Says Freeman: “An adjudication is final and conclusive, not only as to the matter actually determined, but as to every other matter which the parties might have litigated and have had decided as
incident to or essentially connected with the subject matter of the litigation, and every matter coming within the legitimate purview of the
original ac
tion. * * * The general expression, often found in the reports, that a judgment is conclusive of every matter which the parties might have litigated in the action is misleading. What is really meant by this expression is, that a judgment is conclusive upon the issues tendered by the plaintiff’s complaint. It may be that the plaintiff might have united other causes of action with that set out in his complaint, or that the defendant might have interposed counterclaims, cross-bills, and equitable defenses, etc. * * * But as long as these several matters are not tendered as issues in the action, they are not affected by it.” Freeman on Judg., 249; Black on Judg., 732; Am. and Eng. Enc. of Law, 2 ed., 766, 775, 784. This we understand to be the true doctrine, and the principle that all matters are concluded that might have been litigated has not been differently applied by the judgments of this court in cases cited by appellants. The statement has always been made with reference to some matter that was comprehended within the issues in the former action and not concerning causes of action distinct from those before asserted and adjudicated. If, as we have said, the matter now set up by plaintiffs constitutes a different cause of action from that which they formerly sought to maintain, they were not, under the authorities cited, bound to enforce it in their first action. Freeman on Judg., 256. That it is such we think the decisions of this court leave no doubt. Nothing but evidence of title was admissible or could have been made admissible under the former issues without the introduction of a different cause of action. Ayres v. Duprey, 27 Texas, 604-5; Haskins v. Wallet, 63 Texas, 218, same case, 68 Texas, 418; Rippetoe v. Dwyer, 49 Texas, 506; Fuller v. O’Neal, 69 Texas, 352; Chicago T.
&
M. C. Ry. Co. v. Titterington, 84 Texas, 224; Rutherford v. Stamper, 60 Texas, 450; Fisher v. Wood, 65 Texas, 205. The substance of these decisions applicable here is that a right of action to set aside such a deed as that defendants held, not void, but merely voidable by direct attack and upon equitable terms, can not be enforced under the pleadings in the action of trespass to try title. If that proposition is sound, and it is firmly established, it inevitably follows that such a right is not comprehended in the issue of title; for if it were it could, of course, be made effectual as a ground of recovery or of defense in such an action. While a plaintiff is permitted under our system to invest one proceeding with all the characteristics of both kinds of actions, and, if he fail in. one, to recover upon the other, it is still true that the causes of action are distinct, the judgments applicable to them are different, and the allowance of one denies the existence of the other. A defendant when sued in trespass to try title may plead not guilty, thus making the issue of title, and may also plead specially such a right as that which plaintiffs here set up; but when he does so he, in substance, asserts in reconvention a different cause of action against the plaintiff from that which plaintiff asserts against him. If it were not so, his right would necessarily be available under his plea of not guilty. The case of Bonker v. Charlesworth, 33 Mich., 81, sustains the view
which we have expressed. See also Hills v. Sherwood, 48 Cal., 386, and Blanchard v. Brown, 3 Wall., 249. The two cases last cited illustrate the principle, but as the matters which it was held could be set up by bill in equity, to avoid a deed, after judgment in ejectment, could in this State be proved on the issue of title in an action of trespass to try title, it may be that the particular applications there given to the rule of res judicata would' not be given here. But the rulings made in these cases do apply where, as in the present instance, the matter set up in the second action could not have been litigated -in the issues of the first suit. Williams v. Barnett, 52 Texas, 130; Catlin v. Bennett, 47 Texas, 172.
The plaintiffs, believing the judgment of foreclosure and sale against them to be void, leaving their title unaffected, brought suit to recover the land. Judgment was rendered against them adjudging the title to be in the defendant, because the judgment and sale were not void but sufficient to pass the plaintiffs’ title. They had asserted a cause of action which they did not have, simply mistaking the character of their right and, therefore, their remedy. They now assert a different cause-of action, which, we must assume for present purposes, they did have, but did not, because of their error, put in issue in their first proceeding. The former judgment was not on the merits of their real cause of action, so far as the certificate discloses, but was probably the result of their misconception of their remedy. Freeman on Judg., 263, 265. With reference to this, the author says: “The second subdivision (in section 263) includes all judgments rendered on the ground that, conceding the plaintiff to have a cause of action upon which he is entitled to a remedy, yet he is not entitled to so recover under the remedy of-form of action which he has chosen. The exception which takes these-cases out of the general rules in relation to estoppel is a very important one, saving the plaintiff from the loss of his claim through any error of judgment on the part of his attorney in determining what form of action is best suited for the enforcement of the plaintiff’s rights.”
There is at the foundation of appellant’s whole contention the mistaken assumption, that, because plaintiffs had but one cause of action with respect to this land, it follows that it was'set up in the previous, action and was the subject of the former adjudication, when the truth is that their real cause of action was never asserted and therefore never-adjudicated. That which they did allege was a cause of action which they did not possess, and that they did not possess it was the matter-determined against them. The effect of that judgment must be determined by inquiring, not what was the character of the' cause of action respecting the land which they really had, but what was the character of that which they set up and put in issue; and the judgment deelar-. ing that they did not have that which they set up can not with justice be applied to one which they had but did not set up.
It seems to be supposed that the case is affected by article 5275, Revised Statutes, which proyides that a judgment in an action of trespass
to try title “shall be conclusive as to the title or right of possession established in such action.” There is no contention that the judgment is not conclusive as to the title and right of possession. The proposition here is that the title is held subject to any right of plaintiffs which was not and could not have been adjudicated within the scope of the action of trespass to try title in which it was rendered. Such a right is not a title judicable in that action. There is nothing new in the proposition that one party may have title and right of possession and yet 'hold the property subject to equitable rights of another and duties of his own which may and must be enforced in proceedings other than actions involving only title and right of possession. Martin v. Robinson, 67 Texas, 381. Such a right and corresponding duty are asserted by plaintiffs, and as is was not determinable in the former action it was not cut off by the judgment therein.
We answer that the facts stated do not sustain the plea of res adjudicata.