¶1This case presents questions similar to those in the ease of Thouvenin v. Rodriguez, 24th Texas R., 468.
¶2*33In that ease it was said, “We incline to the opinion that the alleged donation from Jose Maria Rodriguez to his father Mariano Rodriguez was complete,” &c., ib., 478. And in relation to record of the judgment of Cortes against Rodriguez, it is said, “We are of opinion that upon its face the judgment was not void for the want of jurisdiction, and consequently that it was admissible in evidence. Whether it may be avoided by proof, that the defendant was a non-resident at the time of the institution of the suit; whether he should have instituted a proceeding to avoid the judgment, and within what time, are different questions.”
¶3In relation to the proof that was excluded in that as well as in this, of the death of Juan Cortes, it is said, “ But the fact of the death of plaintiff (Cortes) before suit, may be a circumstance conducing to the proof of fraud practiced in obtaining the judgment.”
¶4Upon this ground the judgment in this case must be reversed. Appellant was not required to plead any facts showing the nullity of this judgment, or the title attempted to be acquired under it ; because the appellees had not set up in their answer any such title to the land in controversy/ If it were competent for the appellees to offer this evidence of title under the general issue, which we think it was, it was equally so for the appellant to rebut such evidence by showing the judgment to have been obtained by fraud.
¶5This is decisive of this case. The other questions are left as indicated in the other case. In this case it was proved that Rodriguez, defendant in the judgment, was a non-resident at the time the suit was brought. Though we are not now prepared to announce a definite opinion upon its effect upon the validity of the judgment, under the provisions of the attachment law of 1839, should the same proof be made upon a new trial of the case, it is regarded as a question of serious consideration.
¶6Judgment reversed, and the cause remanded for new trial.
¶7Reversed and remanded.