T. B. Wilson v. Sam Johnson et al., 94 Tex. 272

GAINES, Chief Justice. This suit was brought by the plaintiff in error, and the trial having resulted in a judgment for defendants in error, he gave notice of appeal. Thereupon, for the purpose of the appeal, the parties entered into a written agreement as to the pleadings and evidence and the question to be determined, and caused it to be approved by the trial judge.

The agreement is as follows: “It is agreed in the above entitled and numbered cause that it shall bo submitted on appeal to the Court of Appeals of the Fifth Supreme Judicial District of Texas upon the following statement: “This is a suit of trespass to try title to a lot of land described in, plaintiff’s petition originally brought against the defendant, Sam J ohnson, but the heirs of his wife, Mary J ohnson, who died after the institution of the suit, having set up a claim of ownership, were made parties, and, together with the said Sam Johnson, answered by pleas of general denial, not guilty, that the premises sued for were the separate property of said Mary Johnson, deceased, and the homestead of herself and the said Sam J ohnson at the time plaintiff acquired title thereto, limitation of three, five, and ten years, and improvements made in good faith.

Trial by jury, verdict in favor of defendant; motion for a new trial overruled and appeal duly taken to Court of Appeals as above on 22d day of November, 1899. “The evidence showed that plaintiff’s title came through a judgment by default in favor of one of his mesne vendors against the defendant, Sam Johnson, for title to the premises in question. It also appeared that the premises were the separate property of the deceased Mary J ohnson and were her homestead in which she lived with her said husband at "the date of said judgment, and that she was not a party thereto.

It also appeared that when plaintiff purchased he had no actual notice that said premises were the separate property of said Mary Johnson, deceased, the deed thereto being of record and in the name of the husband, but she was in actual possession of the premises, her husband and she remaining married and had been since 1871, and were claiming same as their homestead.

It was also proved that plaintiff as a surveyor in 1871 ran out the lines of the land in controversy at the request of Mary Johnson, her husband, at said time ' in jail, and further, that she had always paid the taxes and taken the receipt in her own name and claimed the property as hers separately. “It is agreed that the judgment as rendered shall be confirmed unless the Court of Appeals shall hold that said judgment by default was binding on said Mary Johnson, in which event the case shall be reversed and remanded.

The court is further requested to say whether or not an acknowledgment to a deed is sufficient where the certificate of the officer is statutory in form as to a husband and wife, except that in the privy acknowledgment of the wife, the word 'acknowledged’ is omitted.” The appellant filed no assignment of error hut filed a brief in the appellate court. The judgment was affirmed without considering the case upon its merits, for the reason that no error was assigned.

When we granted the writ of error, we were of opinion that the court erred in refusing to consider the question submitted, and were .of the impression that it would be our duty to reverse the judgment and remand the cause to that court, to the end that they might pass upon the merits of the case in the first instance. We now think we were mistaken in the latter conclusion.

The Court of Civil Appeals not having dismissed the appeal, but having affirmed the judgment, we are of opinion- that we have jurisdiction over the whole case, and that if the judgment should have been affirmed upon its merits, it is our duty to affirm it here, whether an assignment of error was necessary or not. The sole question is, was the wife of Sam Johnson bound by the judgment against her husband, she not being a party to the suit? As a very general rule, no one is estopped by a judgment in a suit to which he is not a party.

The husband, under our law, has no power to dispose of the wife’s separate property without her consent. He is empowered to sue in his own name, or jointly with his wife, to recover her separate property (Revised Statutes,

article 1200), but it is nowhere provided that he may be sued alone for such property. Without authority for such suit, a judgment against him in a suit to recover property belonging to her in her own right to which she is not a party, does not bind her. Read v. Allen, 56 Texas, 182; Williamson v. Conner, 92 Texas, 582. The wife not having been made a party to the suit in which the judgment was rendered against her husband, was not thereby estopped to assert her title to the property. Our conclusion upon this question leads, under the agreement between the parties, to an affirmance of the judgment.

What we have previously said renders it unnecessary to pass upon the question, whether or not the Court of Civil Appeals should have affirmed the judgment for the want of an assignment of error. But we deem it proper to say that, in our opinion, the statutes and rules in reference to assignments of error should receive a liberal and practical construction; and that when, as in this case, the parties have agreed upon the question upon which the determination of the case is made to depend, the error is impliedly assigned.

The purpose of assignments of error is to point out the errors complained of and not to leave the appellate court to grope through the record to ascertain whether error has been committed or not. Where the question is agreed upon, we do not see how the point could be called more directly to the attention of the court.

Besides, both under the statute and under the rules, the court may consider errors “apparent upon the face of the record.” Since every error must, in one sense, appear upon the face of the transcript, it is difficult to tell what is meant by this language; but we incline to think it intended to signify a prominent error, either fundamental in character or. one determining a question upon which the very right of the case depends. Harris v. Petty, 66 Texas, 514. The judgment of the Court of Civil Appeals and that of the District Court are affirmed. Affirmed.