The opinion
On Motion for Rehearing.
In view of appellees’ motion for rehearing and the prospective trial of this suit upon the merits, it is deemed advisable tO' set forth in more detail our understanding of the rule applicable to a bill of review based upon alleged fraud, which has for its purpose the setting aside of a community property settlement contained in a divorce decree.
The leading case upon the point is McMurray v. McMurray, 67 Tex. 665 , 4 S.W. 357 . In the wife’s bill of review, it was alleged that the husband through fraud took advantage of his wife’s absence from the state and consequent inability to contest the suit, and procured an unjust community property division in a divorce case by means of false and perjured testimony. The bill alleged that the husband had always kept the wife in total ignorance of the amount and value of the estate. The Supreme Court, speaking through Chief Justice Stayton, held that the trial judge erred in sustaining a demurrer to the bill. Primarily upon authority of Wright v. Wright, 7 Tex. 526, 534 , it was said that, “As to community property, a husband is in a restricted sense a trustee for his wife, bound to good faith, and derelict in duty if he conceals knowledge from her necessary to enable her to protect her rights.”
During the course of the opinion it was further said, “That the willful giving of false testimony by a party to an action in relation to a matter affecting an issue to be tried is fraud of the most pernicious character can not be questioned, and for such conduct it has been held that the injured party is entitled to have the cause re-examined.”
The opinion makes note of some divergence in the statement of the rule contained in United States v. Throckmorton,, 98 U.S. 61 , 25 L.Ed. 93 , which holds that a showing of “extrinsic” fraud is essential to set aside a judgment after term time. Also, in this connection, see Ralls v. Ralls, Tex.Civ.App., 256 S.W. 688 .
In view of later Texas authorities following the Throckmorton case, it must be concluded that the broad statement of the rule immediately above quoted from the *283 McMurray case as to perjured testimony no longer obtains in Texas. However, so far as we have been able to ascertain, it has never been suggested that the factual ■situation pleaded in the McMurray case would not be sufficient to justify equitable relief under the rule set forth in U. S. v. Throckmorton, supra. The fact that the wife in the McMurray case was the victim of “extrinsic fraud,” is specially pointed out in O’Meara v. O’Meara, Tex.Civ.App., 181 S.W.2d 891 , wr. ref.
In State v. Wright, Tex.Civ.App., 56 S.W.2d 950, 952 , it was said that “the fraud which will authorize vacation by the court of its former judgment in such case must be what has been termed ‘extrinsic fraud.’ By that is meant fraud by the •other party to the suit which has prevented "the losing party either from knowing about 'his rights or defenses, or from having a fair opportunity of presenting them upon the trial.”
The Court further said that in the Mc-Murray case it appeared that the sufficiency of the bill was based “upon the conclusion that the alleged fraud of the husband upon the wife was such, in conjunction with his perjured testimony, as to prevent her from presenting upon the trial her legal right in the premises.”
In Reed v. Bryant, Tex.Civ.App., 291 S.W. 605, 609 , the following was said, with reference to McMurray v. McMurray and U. S. v. Throckmorton:
“While, in the opinion in the Mc-Murray Case, special stress is laid -upon the unconscionable fraud perpetrated by the husband in the willful perjury he committed to cheat his wife in the partition of the estate, facts were also pointed out which showed that, as a result of a deliberately planned scheme of the husband, the wife was prevented from appearing and proving at the trial her rights in the estate that was partitioned. And the decision was further based on the added perfidy of the husband in violating the trust reposed in him by the statutes which vested him with full control of the community estate, the knowledge and extent of which he had fraudulently concealed from his wife prior to the divorce proceedings, and concerning which he had given false and perjured testimony on the trial. When properly analyzed, it is clear that the decision in that case is in accord with and supported by the decision of U. S. v. Throckmorton and other authorities to a like effect, cited above.”
In Novy v. Novy, Tex.Civ.App., 231 S.W.2d 780, 783 , the Court said:
“Appellant’s allegations are to the effect that the fraudulent acts and conduct of Jim Novy prevented her from having a fair opportunity, at the divorce trial in Tarrant County, of litigating and having determined her rights in and to the community property. Such allegations do not relate to issues determined by the court in that trial but to the procurement of a transfer of property to Frieden and the concealment of property from her prior to the trial, with the result that such property was not before the court for the rendition of a true judgment partitioning the same between the parties. Such then were allegations of extrinsic fraud.”
Of course, when it is shown that the party seeking.to set the judgment aside was not deceived by the alleged fraudulent concealment but had full knowledge of the pertinent facts when the original judgment was rendered, there is no showing of extrinsic fraud and the attack upon the judgment fails. Snow v. Cook, Tex.Civ.App., 278 S.W. 520 . Similarly, when it appears that an issue as to ownership, value or extent of property and the like was actually tendered upon the original trial, a dissatisfied party at a later date can not again relitigate the issue upon bill of review, for under such circumstances any false representation concerning such issue must be classified as intrinsic and not extrinsic fraud. O’Meara v. O’Meara, Tex.Civ.App., 181 S.W.2d 891 . For further citation and discussion of authorities, see Crouch v. McGaw, 134 Tex. 633 , 138 S.W.2d 94 .
*284 We recognize the rule that one seeking to set aside a judgment after term time By bill of review must show that the fraud practiced upon him was extrinsic in nature as defined By the cases above cited, and that an unjust judgment resulted from such fraudulent conduct, unmixed with any fault or negligence chargeable to the party seeking relief from the judgment. Alexander v. Hagedorn, 148 Tex. 565 , 226 S.W.2d 996 .
Applying this rule to the present case we hold, (1) that appellant’s Bill of review is predicated upon a species of extrinsic fraud consisting of concealment by the community manager of the nature, value and extent of the community estate; (2) that it does not appear that there is an absence of a genuine fact issue relating to the nature and effect of the alleged fraudulent acts of the husband, and (3) that there is a similar lack of showing that there was no genuine fact issue as to the alleged negligence and delay on the part of the wife. Stated another way, it was not shown by the pertinent record upon which the motion for summary judgment was based that appellant as a matter of law was barred from the relief sought in the bill of review. On the contrary, the existence of genuine fact issues is indicated, and a determination by the trier of facts is therefore required.
We adhere to the holdings expressed in our original opinion and appellees’ motion for rehearing is accordingly overruled.