Chappell v. McIntyre, 9 Tex. 161

Wiieeler, J. The parties submitted the case to the court upon an agreed statement of facts, and they asked the judgment of the court upon the law arising upon those facts. The agreement expressly abandoned matters pleaded in defense of the action. Its terms leave no doubt that id was intended to embrace and did embrace all the matters on which tho parties sought to obtain the judgment of the court. It embraced the matters then in controversy.

And we think it clear that by thus asking the judgment of the court upon the questions at law arising on the case submitted the parties are to be considered as having waived all previous irregularities and the questions arising upon the pleadings. (Bates v. The Republic, 2 Tex. R., 616.) The questions of law upon the case slated are settled in favor of the appellee by the case of McIntyre v. Chappell (4 Tex. R., 187) and Love and Wife v. Robertson, (7 Id., 6.) By both tho common law and the law of this State money derived from the sale of the property of the husband was his.

Upon the death of the husband the money in question belonged to his heir, and the plaintiff, as her guardian, was entitled to recover it. The remittitur of the intestate removes the only remaining objection to the judgment. It is therefore affirmed. Judgment affirmed.