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warranties of title as concerns said undivided 320 acres of said Hyde survey in excess of, but only so far as in excess of, and after deducting said $5,000 with interest thereon at the rate of 6 per cent. per annum from February 15, 1913.

From this judgment the plaintiffs Fidelity Lumber Company and E. B. Parker, trustee, have appealed.

It may be well to set out at this point the findings of fact and conclusions of law of the trial court, viz.:

"In accordance with the request of the defendants S. F. Carter, J. P. Carter, and the American Exchange National Bank of Dallas, I below state the conclusions of fact and conclusions of law upon which the judgment in

said case was based:

"(1) Marinda Hyde died about the day of 1884, then owning as her separate property the Marinda Hyde 640-acre survey in Tyler county, Tex. She had never had any children. She left surviving her husband, W. T. Hyde, and several brothers and sisters, and the children of other brothers and sisters; these brothers and sisters and the children of the other brothers and sisters being hereinafter referred to as heirs of the said Marinda Hyde. "(2) On December 23, 1886, the said W. T. Hyde conveyed the whole of said survey to Wm. S. Peters, from whom the same passed by regular chain of title down to the Fidelity Lumber Company; the deed to the last-named company being made about the time of the institution of cause No. 3197 on the docket of this court, entitled Presley K. Ewing et al. v. Thompson Bros. Lumber Company et al., hereinafter re

ferred to.

"(3) One of the links in said chain of title was a deed of date of October 26, 1898, from the American Exchange National Bank of Dallas to the Tyler County Land & Lumber Company, which deed was a general warranty deed conveying the Marinda Hyde survey and other surveys in consideration of the sum of $8,989. The number of acres conveyed by this deed was and the amount of said consideration paid for said Marinda Hyde was $2,720.

"(4) Another link in said chain of title was a general warranty deed of date of July 2, 1906, from the Emporia Lumber Company, a corporation, to J. L. Thompson, Alexander Thompson, and Hoxie H. Thompson, hereinafter called the Thompsons, conveying said Marinda Hyde survey and many other tracts of land, a sawmill, tram railway, and other property, the recited consideration in this deed being $500,000, but the amount paid to the Emporia Lumber Company for said lands and other property was $1,000,000. There was no definite proof as to what amount was paid to the Emporia Lumber Company for the Marinda Hyde survey.

district court of Tyler county, Tex., on the 14th day of June, 1912; the same being an action of trespass to try title, for the recovery of 320 acres, being an undivided half of the Marinda Hyde 640-acre survey in said county. The plaintiffs in said cause were Presley K. Ewing, Mrs. Alice A. Mahon and her husband, S. A. Mahon, H. L. McCorkle, Ashley W. Cullum, Thomas Marvin Cullum, Jr., Annie Louise Cullum, A. W. Cullum, John T. Baldridge, Mrs. Marinda Grantham, Mrs. Jennie Ercanbrack, W. W. Ercanbrack, Mrs. D. P. Foster, Mrs. Rachael Barrett, R. B. Barrett, and W. W. Baldridge; and the original defendant in said cause No. 3197 was the Thompson Bros. Lumber Company. Afterwards the death of the plaintiff S. A. Mahon was suggested, and the Fidelity Lumber Company was made a defendant, it having purchased the land in controversy from one who had purchased same from Thompson Bros. Lumber Company. The defendants in said cause No. 3197 made S. F. Carter and J. P. Carter, their alleged warrantors, parties defendants, and they made a party their warrantor the American Exchange National Bank. The style of said cause No. 3197 was Presley K. Ewing et al. v. Thompson Bros. Lumber Company et al., and the attorneys for plaintiffs were Presley K. Ewing, S. M. Johnson, and W. A. Johnson; their fee to be one-half of all land recovered by them.

"(7) The plaintiff took depositions in cause No. 3197 by which they proved that they, and those whose interest in said land had been acquired by said Ewing, were the only heirs of said Marinda Hyde. These depositions were examined by the attorneys for all the defendants in the case or by persons authorized to represent them. This examination was made by the attorneys for the Fidelity Lumber Company before the term of court at which the judgment in cause No. 3197 was rendered and by the attorney for S. F. Carter and J. P. Carter at the time the agreement was made for the rendition of said judgment, and at such time the attorney for the said Carters called the attention of said attorney, S. M. Johnson, who was managing the prosecution of said cause, to the fact that there were some slight defects in the proof made by said depositions, when the said Johnson submitted to them certain affidavits of heirship and stated that he had investigated the question of heirship fully and that the only heirs of Marinda Hyde were the plaintiffs and those whose interests had been acquired by said Ewing. This statement of said Johnson was communicated to the attorneys for the other defendants. Thereupon, all the plaintiffs and defendants agreed in writing upon the entry of the judgment which was rendered in said cause No. 3197, all the defendants then believing that by said judgment the said Fidelity Lumber Company was acquiring the interests of all the heirs of said Marinda Hyde in an undivided half of said survey, and the moneys_paid by the said Carters and the American Exchange National Bank of Dallas as shown by said judgment was paid under the belief that the Fidelity Lumber Company was acquiring such title by such judgment and was paid to protect the title of said Fidelity Lumber Company. That the said Ewing knew nothing of the said representations of said Johnson and all his knowledge as to who were the heirs of said Marinda Hyde was such as he acquired from S. M. Johnson and gave him the same information as that above stated to have been given to the attorney for the Carters.

(5) On November 12, 1906, said Thompsons conveyed to the Thompson Bros. Lumber Company the lands and other property conveyed to them by the Emporia Lumber Company, and on December 31, 1906, the said S. F. Carter and J. P. Carter, the owners of nearly all the stock of the Emporia Lumber Company, entered into a contract with said Thompsons reciting the said conveyance to them by the Emporia Lumber Company and bound themselves to warrant and defend the premises described in said deed made by the Emporia Lumber Company, unto the said Thompsons and their assigns, and (S) That the judgment rendered in said cause guaranteed and warranted that the title of said No. 3197 was rendered on the 15th day of Febland and property was in said Emporia Lum-ruary, 1913, and is substantially set forth in ber Company at the time of its conveyance plaintiff's petition in this cause, and upon thereof; such obligation being assumed in the the rendition thereof the said S. F. Carter and following proportions, viz., by S. F. Carter J. P. Carter and the American Exchange Nathree-fourths, and J. P. Carter one-fourth. tional Bank paid to the plaintiffs in said cause

"(6) Cause No. 3197 was instituted in the No. 3197 the sum of $5,000, and afterwards.

paid the court costs in said cause amounting to from said American Exchange National Bank $52.70, of which sum of $5,000 the said Carters the sum of fourteen hundred and thirteen and paid the sum of $3,336.10 directly to the plain- 90/100 ($1,413.90) dollars. It is therefore ortiffs and under the orders of this court paid to dered and adjudged that the said S. F. Carter the clerk of this court for the minor plaintiffs and J. P. Carter do have and recover of and the sum of $250, and the said American Ex- from said American Exchange National Bank of change National Bank paid the sum of $1,413.- Dallas, Tex., the said sum of fourteen hundred 90, and said sum of $52.70 was paid by the and thirteen and 90/100 dollars with interest said Carters to whom the sum of $ was from this date at the rate of 6 per cent. per repaid by the said bank. Said sum above stated annum, and, this sum being paid in open court, to have been paid to plaintiffs was paid to said the said American Exchange National Bank Presley K. Ewing to be divided between himself, is adjudged to be released from all further liathe other plaintiffs, and the said S. M. and W. bility to any of the defendants herein on the A. Johnson, and the same was by him so di- covenants of warranty contained in the deed of vided and paid, some of the persons to whom date of October 26, 1898, from the National parts of said money were paid being now in- Exchange Bank of Dallas, Tex., to the Tyler solvent, and said Ewing (and) probably others County Land & Lumber Company, in so far are solvent; some of them do not live in the as said covenants relate to the land above destate of Texas. scribed.' Said recital and provision was made in said judgment because all the defendants in said cause No. 3197, including said warrantors, believed that all those interested in said land, either as heirs of said Marinda Hyde or purchasers from such heirs were plaintiffs in such cause, and because the said warrantors had paid said sums to protect the title of the Fidelity Lumber Company to said land, and were therefore entitled to be discharged from their covenants of warranty and said judgment containing such recitals and provisions were therefore agreed to by them.

"(9) I find that at the time of the rendition of said judgment in cause No. 3197 there were heirs of Marinda Hyde other than those who were parties to said cause and those whose interests were owned by said Ewing, and that these other heirs then owned undivided interests in said 320 acres, amounting to 150 or 160 acres thereof. That such fact was, at the time of the rendition of said judgment, unknown to any of the defendants in said cause No. 3197, was unknown_to_said Ewing, but was known to the said S. M. Johnson and some of the other plaintiffs, and especially to one or more of the plaintiffs whose depositions were taken in said cause. That the heirs of said Marinda Hyde who were parties to said cause No. 3197 were residents of Texas and Oklahoma, and the heirs not made parties thereto were residents of the state of Mississippi.

"(10) The plaintiffs in this cause did not in their pleadings offer to repay to the said S. F. Carter and J. P. Carter or the American Exchange National Bank of Dallas, or to either of them, the sums so paid out by them at the time of the rendition of said judgment in cause No. 3197, nor did they, or any other person, on the trial of this cause, offer to repay said sums or any part thereof.

"(11) In December, 1913, and during the early part of 1914, the Fidelity Lumber Company cut and appropriated standing timber on said survey of the value of $6,000 or $7,000.

"(12) In said judgment rendered in said cause No. 3197, after the judgment for the defendant Fidelity Lumber Company for the land, and after the recital of the payment of said sums of money by the warrantors, it was recited and provided as follows: And, the said defendants S. F. Carter and J. P. Carter having protected the title of its vendees to said land, it is therefore ordered and adjudged that they be released from any further liability to the Thompson Bros. Lumber Company, and Fidelity Lumber Company, and E. B. Parker on account of the covenants of warranty relating to said land and contained in the deed of date of July 2, 1906, from the Emporia Lumber Company to J. L. Thompson, Hoxie H. Thompson and Alexander Thompson conveying said land, and the covenants of warranty relating to said land and contained in the contract of date of December 31, 1906, by which they the said S. F. Carter and J. P. Carter became bound by the covenants of warranty contained in said deed from said Emporia Lumber Company to said J. L. Thompson, Hoxie H. Thompson and Alexander Thompson, and which deed and contract are pleaded in the answer therein of said S. F. Carter and J. P. Carter. And as between the defendants S. F. Carter and J. P. Carter and their remote warrantor, the defendant the American National Exchange Bank of Dallas, Tex., it is agreed between them in open court that the said S. F. Carter and J. P. Carter on account of the payment by them of said sums of money to acquire from plaintiffs title of the said land and to compromise this suit are entitled to recover

"(13) This consent judgment was pursuant to an agreement exclusively between the plaintiffs in the former suit and the warrantors of title for what was in effect a chance of sale of their interest by way of compromise, with a distinct term stipulated by the warrantors that the deal would be consummated only in the event of a favorable report from their attorney, Judge J. C. Matthews, upon independent investigation into the title, including the heirship.

"(14) The warrantors and their warrantee, Fidelity Lumber Company, consented to the provision absolutely discharging the warrantors on their warrant liability, which was materially greater than the amount paid by them, instead of to the extent only of their payment, under a mutual mistake of fact, both believing that the plaintiffs in the former suit were or represented all the heirs of Marinda Hyde, whereas they were and represented only a part of such heirs, about half in interest.

"(15) The averments of fraud in the petition of the plaintiffs herein are not sufficiently sustained by the evidence for relief.

"(16) The plaintiff herein Fidelity Lumber Company acquired under the judgment in the former suit from the plaintiffs therein an undivided interest of 160 acres in the survey there in suit, or at the least 145 acres, in either event of the market and real value, then and now, equal to or greater than the amount paid such plaintiffs in the former suit under the compromise mentioned, so that it has suffered no prejudice and will suffer none if the warrantors are discharged only to the extent of their payment.

"(17) Presley K. Ewing was a plaintiff in the former suit, having purchased the interest of some of the heirs, and the attorneys for the plaintiffs therein, Silas M. Johnson and W. A. Johnson, associated him with them as attorney; but neither he nor W. A. Johnson made any representations as to the heirs, and they had no knowledge and did not assume to have any as to whether the heirs brought forward in the former suit were or were not all the heirs, and the only information they had in that regard was derived from the attorney, Silas M. Johnson.

"(18) When the settlement was made, Presley K. Ewing, desiring personally to see that the money was properly distributed, received $4,750 of the $5,000 compromise money, $3,336.10 thereof from S. F. and J. P. Carter and $1,413.90 from American National Exchange

Bank of Dallas, the balance of $250 being paid into the registry of the court for the minor plaintiffs, and duly distributed such fund so received among the persons entitled thereto, who ratified what he did, and such was done and completed by him in good faith without any knowledge or intimation that the heirs brought forward in the former suit were not the only heirs of Marinda Hyde.

"Conclusions of Law.

"The plaintiffs herein are not entitled to relief against the defendants who were plaintiffs

in the former suit for several reasons.

"The plaintiff warrantee, Fidelity Lumber Company, suffered a disappointing loss of gain, but no claim is made of equitable abatement for partial failure of consideration, and, if the claim had been made, such equitable abatement is not allowable in a chance transaction such as that in question. Clark v. Altizer (Tex. Civ. App.) 145 S. W. 1042, 1044, error refused: Scott v. Slaughter, 35 Tex. Civ. App. 524, 526, 80 S. W. 643; McDonough v. Martin, 88 Ga. 675 [16 S. E. 59, 18 L. R. A. 343]; Shackleford v. Wright (Ky.) 16 S. W. 268; 29 Am. & Eng. Ency. of Law (2d Ed.) pp. 632, 633, and cases cited. Similarly, relief from mutual mistake is not applicable to 'chance' bargains. Hood v. Todd (Ky.) 58 S. W. 785.

"The averments of fraud for relief not being sustained, no relief is grantable thereon; but, if it were otherwise, 'relief against a judgment or decree cannot be had in equity by bill of review or otherwise on the ground of fraud in obtaining the same, unless the fraud has resulted in damage or prejudice.' 14 Am. & Eng. Ency. of Law (2d Ed.) pp. 137-139, with copious citation of authorities; 20 Cyc. pp. 102, 103. The opinion in Lewis v. Brookdale Land Co. [124 Mo. 672], 28 S. W. 324, 328, concludes: 'It requires the concurrence of both fraud and injury to warrant equitable relief." Bigby v. Powell [25 Ga. 244], 71 Am. Dec. 168, 170, holds that, 'when a suitor presents himself to a court of chancery for relief, the party must show, not only that he was misled and deceived, but that he was endamaged thereby.' The result of the authorities on the subject is thus stated in 29 Am. & Eng. Ency. of Law (2d Ed.) pp. 663, 664, with citation of authorities from many states: 'If the representation does not result in damage or prejudice to the party to whom it was made, the contract will not be rescinded at his instance.'

"In determining the 'damage,' it is held that the real value at the time of purchase, and not necessarily the market price, is controlling, 14 Am. & Eng. Ency. of Law (2d Ed.) p. 188. And, as held by our Supreme Court in George v. Hesse, 100 Tex. 47 [93 S. W. 107, 8 L. R. A. (N. S.) 804, 123 Am. St. Rep. 772, 15 Ann. Cas. 456], damage or pecuniary loss' is to be arrived at by the difference between the value which he (plaintiff) has parted with and the value of that which he has received under the agreement,' and that 'what the plaintiff might have gained is not the question, but what he has lost by being deceived into the purchase.'

"It follows that the plaintiff Fidelity Lumber Company, having suffered no damage or prejudice as concerns the plaintiffs in the former suit, is in no position to have that judgment rescinded or set aside.

"It is familiar law that in a proper case a judgment may be annulled or enjoined for fraud in some material extrinsic or collateral matter operating injuriously, such as preventing a just defense being made, but not where the fraud is in the very issues of the case, necessarily determined by the judgment; and, as the plaintiffs in the former suit were suing as tenants in common, making it necessary for them to establish the quantum of their interest for recovery, and as their being or not the only heirs of

issue, the judgment could not be set aside for fraud in that regard even if the other reasons given for withholding relief were insufficient. United States v. Throckmorton, 98 U. S. 61 [25 L. Ed. 93]; United States v. Gleeson (U. S. App.) 90 Fed. 778 [33 C. C. A. 272]; Moore v. Moore (Tex. Civ. App.) 63 S. W. 347; Gilbert v. Cooper [43 Tex. Civ. App. 328], 95 S. W. 753; Watts v. Bruce [31 Tex. Civ. App. 347]. 72 S. W. 258; Williams v. Nolan, 58 Tex. 708; Pomeroy's Eq. Jur. & Eq. Rem. $ 656. In Hartford Fire Ins. Co. v. King, 31

Tex. Civ. App. 636, 73 S. W. 71, it is held ‘a final judgment on the merits is as conclusive if entered by consent as if entered after con

test.'

"The provision of the former judgment for absolute discharge of the warrantors being separable, and between the warrantors and warrantee only, and the mistake thereof being relievable without setting the judgment aside, by reforming the provision under the averments and general prayer of the petition, so as to obviate the mistake, whereby equity will be done between the parties without prejudice to either that relief may be granted.

"The plaintiffs have not offered to do equity so as to entitle the Fidelity Lumber Company to greater relief, because there is no offer to restore to the warrantors the moneys they paid if the entire judgment is set aside, but to remit them by actions therefor to plaintiffs in the former suit, numerous and scattered, with some minors, and others probably insolvent.

"The defendant Presley K. Ewing, having distributed the moneys collected by him in good faith and without notice of any deficiency of heirs, could not be held, even if the former judgment were set aside, for any moneys paid by him as agent to others, but only for his own share, and this is especially true under the averments and specific prayer of the plaintiffs' petition in that regard. Vogel v. Ball, 69 Tex. 604, 607 [7 S. W. 101]; Denison v. League, 16 Tex. 408; Behrens Drug Co. v. Hamilton (Tex. Civ. App.) 45 S. W. 622; Silliman v. Gano, 90 Tex. 649 [39 S. W. 559, 40 S. W. 391].

"With respect to the claim that the former judgment was not final as not disposing of the nominal defendants Ferris and Lane, the contention is not sound, as the judgment was in effect final as to them, though not naming them. Whitmire v. Powell, 103 Tex. 233, 236 [125 S. W. 889]; Moore v. Powers Bros., 16 Tex. Civ. App. 436, 41 S. W. 707; Wilson v. Smith, 43 S. W. 1086, 17 Tex. Civ. App. 188, 194, and cases cited. If it were otherwise, the judgment might be, and it has been, amended by dismissal of the parties nunc pro tunc. Benge v. Panhandle Land Co. (Tex. Civ. App.) 145 S. W. 318, 319; Doty v. Caldwell (Tex. Civ. App.) 38 S. W. 1025; Coleman v. Zapp, 105 Tex. 491 [151 S. W. 1040].

"In accordance with the above conclusions, the decree herein has been entered."

The first and second assignments of error will be considered together, viz.:

(a) "Under the pleadings and proof in this case, the trial court erred in refusing to set aside the judgment rendered on the 15th day of February, 1913, in cause 3197, in the district court of Tyler county, styled, Presley K. Ewing et al. v. Thompson Bros. Lumber Company et al., because the plaintiffs herein alleged and proved that the judgment entered in that cause was procured by the fraud of S. M. Johnson and of certain plaintiffs in that case, other than Presley K. Ewing, in knowingly representing affirmatively that plaintiffs in said case were all of the heirs of Marinda Hyde, deceased, and in concealing from the plaintiffs herein the fact, which was known to them, that said plaintiffs represented less than one-half of the interest of the heirs of Marinda Hyde, there

so that

the Fidelity Lumber Company acquired only tiffs to dispense, either by fraud or agreement, 145 acres of land under the mistaken belief with that stipulation as to such coplaintifs that it was acquiring 320 acres, and the Fidel- without their knowledge or consent, ity Lumber Company releasing under the terms demonstrably his fraud in that regard could not of said judgment its warrantors from further be imputed to Ewing or those in his attitude. liability on their warranty, which liability is largely in excess of the amount paid by said warrantors as a consideration for said judgment, all of which is alleged in the petition on file in this case."

(b) "Under the pleadings and proof of this case, the trial court erred in refusing to set aside the judgment rendered on the 15th day of February, 1913, in cause No. 3197, in the district court of Tyler county, styled Presley K. Ewing et al. v. Thompson Bros. Lumber Company et al., because the plaintiffs herein alleged and proved that the judgment entered in that cause was procured under the mistaken belief on the part of Presley K. Ewing and W. A. Johnson, attorneys who were employed by and represented the plaintiffs in said action, and the defendants and warrantors in said action and their respective attorneys, which mistake was mutual as to all said parties that said plaintiffs in said cause No. 3197 were or stood in the right of all of the heirs of Marinda Hyde, deceased, and owned the 320 acres of land described in plaintiffs' petition in said suit, whereas, in truth and in fact the said plaintiffs and those who stood in their right constituted less than one-half in interest of the heirs of Marinda Hyde, and, but for said mutual mistake and the mistaken belief of the parties, said judgment in its terms would not have been entered as the decree of said court in said cause; and by the terms of said judgment the said Fidelity Lumber Company acquired title to approximately 145 acres of land instead of 320 acres of land, and its warrantors were released from further liability in consideration of a sum for less than their real liability was under their warranty." The proposition under these assignments

is:

"A judgment procured by fraud or mutual mistake will be set aside when a direct action is brought for that purpose in the court in which such judgment was rendered and all of the parties to the judgment are before the court." To oppose the same, the following counter proposition is made:

"The district court correctly held that the relief sought was not grantable for fraud as against Ewing and the other defendants similarly situated, if for no other reasons:

"(1) Because the warrantee, Fidelity Lumber Company, was not a party or privy to the compromise settlement between the warrantors, Carters and American Exchange National Bank, and plaintiffs in the former suit, as to which transaction alone it was within the scope of S. N. Johnson's agency authority to act for his coplaintiffs, and as to which alone he assumed to act for such coplaintiffs, who were interested only in the consummation of that particular transaction; wherefore his fraud, if any, towards a third party, the warrantee, while it might involve nimself, could not be imputed to Ewing or other coplaintiffs in his attitude.

"(4) Because S. M. Johnson's statement as to the claimants being all the heirs was plainly but an opinion or conclusion from undisclos ed and unasked for information he may have obtained, and was necessarily understood to have been nothing more, as it was known be had no knowledge of the heirship except information he might have gotten from others. "(5) Because there was no evidence to show, at least the court below was warranted in finding it did not show, that either Matthews, the alter ego of the warrantors, or C. L. Carter, or Joe W. Thomas, the alter ego of the Fidelity Lumber Company, relied upon any statement by S. M. Johnson in concluding that the plaintiffs in the former suit were or represented all the heirs of Marinda Hyde."

The judgment in cause No. 3197, Ewing v. Thompson Bros. Lumber Company, sets out the following:

"After hearing the pleadings and evidence together with the admissions of fact made in open Court, it appears to the court that since the Carter have entered into a compromise of this last term of this court the said S. F. and J. P. suit with the plaintiffs, and have purchased from plaintiffs the land in controversy in this suit, and hereinafter described, and have paid plaintiffs for said land the sum of $5,000, the payment of such purchase money being in open court admitted by the plaintiffs, and it further and purchase by said S. F. and J. P. Carter appearing to the court that said compromise inures to the benefit of said Fidelity Lumber Company, which is by reason of said facts entitled to judgment for said land; it is therefore, by the court, considered, ordered, and adjudged that the said defendant the Fidelity Lumber Company do have and recover of and from the plaintiffs herein the title and possession of the land described in the plaintiff's amended petition, and which is one undivided half of a tract or survey of land described as follows: All that certain 640 acres survey of land situated in Tyler county, Tex., patented to the heirs of Marinda Hyde," etc.

[1] S. F. and J. P. Carter were the warrantors of the Fidelity Lumber Company. In the original suit, No. 3197, Ewing v. Thompson Bros. Lumber Company, plaintiff's sued the Thompson Bros. Lumber Company and the Fidelity Lumber Company. In this action Presley K. Ewing was a party plaintiff, as well as the others who claimed to be all of the heirs of Marinda Hyde, and this petition was signed by S. M. Johnson as one of the attorneys for the plaintiffs. The answer of the defendant Thompson Bros. Lumber Company impleaded S. F. and J. P. Carter on their warranty, and, in an extended answer by S. F. and J. P. Carter, the execution of this warranty was admitted, and the American Exchange National Bank of Dallas was impleaded as their warrantor.

(2) Because S. M. Johnson's misrepresentations, if any, were not to the third party, the warrantee, with which he had no dealings, or to any class of persons of which he was one, and hence were not actionable at its complaint, This record discloses that there was no especially as it was not a party or privy to the other compromise agreement or settlement contractual transaction into which Ewing and than that evidenced by this judgment. Bethe coplaintiffs in his attitude had entered.

"(3) Because Matthews' independent investi- ing a party to the compromise agreement, gation of the title, including the heirship, being and being the victim of S. M. Johnson's an express condition of the compromise agree- fraud and the victim of Mr. Ewing's misment between the warrantors and plaintiffs in

the former suit, S. M. Johnson was by plain take and Judge Matthews' mistake, is eviexclusion without authority from his coplain- dent to the mind of this court. However,

the declaration is made that the Fidelity, Hyde. The affidavit of Fannie Washington, Lumber Company is not in privity with the who was formerly a Lea, was supplied to compromise settlement. "Privity" has been Judge Matthews for his information, and it defined as being "a connection or bond of is shown by relatives of Mrs. Washington to union between parties as to some particular be absolutely untrue. As has been stated transaction; mutual or successive relation- above, several times, the declaration was ship to the same right of property."

By the decree in No. 3197, there passed to the Fidelity Lumber Company the title formerly held by the plaintiff to about 132 acres of land. To say that there was no privity existing between the Fidelity Lumber Company and plaintiffs in cause No. 3197, through that judgment, occurs to us as being rather inconsistent. By virtue of the compromise agreement evidenced by this judgment, there is a mutual or a successive relationship to the same rights of property. It is contended, however, that because Johnson's misrepresentations were made to Judge Matthews and to Mr. Ewing, and that although the Fidelity Lumber Company was a party to the compromise decree, induced by the fraudulent representations of Johnson, Mrs. Foster, and Fannie Washington, and that through said decree, the Fidelity Lumber Company is in privity with the plaintiffs in said former suit. It is further contended that Judge Matthews was to make an investigation of the heirship. Such investigation was made through the deposition of Mrs. Foster, who falsely testified at the instance of S. M. Johnson, omitting the names of her sister's children, who were neighbors of hers, and other heirs, and further, by the affidavit of Fannie Washington, who swore that she and her brother, D. C. Lea, are the only surviving heirs of her mother and father, as far as she knew from family history or otherwise, and by statements made several times by S. M. Johnson that the plaintiffs were all of the heirs of Marinda Hyde, and by the letter from Mr. Ewing, in which he stated to Judge Matthews: "We regard our title as clear as yours."

It appears to this court that, if Judge Matthews undertook an independent investigation of the heirship, this obligation was discharged by him. The facts seem to be, as shown by the deposition of H. L. McCorkle, one of the plaintiffs in cause No.

3197, that there were nine children of Matilda Lea, and, as shown by the deposition of C. C. Gibson, that a number of these children left descendants, and as shown by the deposition of Samantha Herrold, that Matilda Lea had ten children, and their names are given by Samantha Herrold, the names of the persons they married, and their residences are also given by her.

made in writing, from S. M. Johnson, stating affirmatively that the plaintiffs in cause No. 3197 were in fact all of the heirs of Marinda Hyde, when it later was found that the facts were, at that time, that Johnson knew from the statements made to him by Mr. McCorkle, his client, and from statements made to him by Mrs. Foster, that his statement was untrue. In view of the fact that plaintiffs represented only about 131 acres in interest, in our judgment, it cannot be assumed that S. M. Johnson did not know of the existence of the other heirs. He stated to McCorkle that he had written and made inquiry in Mississippi for them, but that statement is shown to be false by the testimony of the collateral heirs of Marinda Hyde, who resided in Mississippi.

It is further contended that S. M. Johnson's statement with reference to heirship was but an opinion or conclusion and that it was necessarily so understood.

Mr. Ewing testified as a witness, and presented to the court S. M. Johnson's written declarations with reference to the Marinda Hyde heirs; but, as repeatedly stated above, Johnson often asserted as a fact, and not as an opinion, that the plaintiffs were all of the heirs of Marinda Hyde, and in Johnson's letter of December 11th the following language is used:

"Of course, in the event of settlement we would furnish you affidavits of heirship. There is no shadow of a doubt that our clients are entitled to half of this survey."

It occurs to this court that the record

shows clearly that Johnson's statements were not matters of opinion or conclusions, but

were declarations of fact.

It is further contended that there was no evidence to show that Judge Matthews or C. L. Carter or Joe W. Thomas, representing the warrantors and Fidelity Lumber Company, relied upon any statement by S. M. Johnson in concluding that the plaintiffs were, or were so represented by him to be, all of the heirs of Marinda Hyde.

Johnson, who seemed to be the manager of the prosecution in said cause, submitted to the attorneys for the Carters certain affidavits of heirship, and stated that he had investigated the question of heirship fully, and that the only heirs of Marinda Hyde were the plaintiffs and those whose interests had been acquired by Ewing. This statement of One of the plaintiffs in this case testified Johnson was communicated to the attorneys with reference to heirship, and, when called for the other defendants. Thereupon and at upon to do so, failed to disclose an affirma- that time all the plaintiffs and defendants tive fact, unquestionably within her knowl- agreed in writing upon the entry of the

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