Bishop v. Gestean

FLY, J. Annie Gestean, joined pro forma by her husband, Daniel A. Gestean, applied for a writ of injunction to restrain Clark Bishop, Sarah H!. Hartman and her husband, Edward S. Hartman, Mary Murray and her husband, George Murray, Malisa Baldwin and her husband, Benjamin B. Baldwin, M. W. Stanton and F. J. Hall, sheriff of El Paso county, Tex., from disturbing her in the possession, ownership, and enjoyment of certain land, by the execution of a writ of possession in favor of the parties sued, except the sheriff. A temporary writ was granted. Plaintiffs in error answered by general and special exceptions and specially denying that the property was the separate estate of Annie Gestean, as claimed by her, and pleaded a judgment against her husband, Daniel A. Ges-tean, who intervened in the suit out of which the writ of possession was issued, and claimed the title and possession of the land, and that judgment was rendered against him, which was an adjudication of all the right, title, and interest of Annie Gestean in favor of plaintiffs in error. After hearing the evidence, the temporary writ of injunction was perpetuated by the court, with the proviso that the judgment should be without prejudice to any suit that might be brought to recover the title or possession of any part of the property. The facts are that in a suit in which the plaintiffs in error were plaintiffs and W. H. Winn and R. H. Thorne were defendants, which was an action of trepass to try title to the property claimed by Annie Gestean, her husband, Daniel A. Gestean, intervened, claiming to be the owner and in possession of one-half of a certain block, being the property involved herein. Judgment was rendered in favor of plaintiffs in error for the land as against Winn, Thorne, and Daniel A. Gestean. Annie Gestean was not a party to that suit and was not affected by the judgment unless the judgment against her husband settled any and all rights she may have to the land. Annie Gestean swore that she and her husband lived on the property in controversy, being one-half of block 12 in what is known as East El Paso town site, and had been living there for many years. A deed of date March 16, 1907, from Daniel A. Gestean to Annie Gestean, which was filed for record on March 18,1907, conveying the land in controversy to her, was introduced in evidence. The deed from the husband to the wife showed prima facie that the property was the separate estate of the wife, ajad the judgment would not bind her unless her husband intervened in the suit and set up her claim to the land. [1] The statute (article 1200, Rev. St.) authorized the husband to sue either alone or jointly with his wife for the recovery of any separate property of the wife; but when he sues alone he must sue for the wife, which he could not do except by setting up her claim, not his, to the property. A person cannot be bound by the judgment in a suit unless he or she be actually or constructively a party thereto, and it could not be said that Annie Gestean was actually or constructively a party to a suit instituted by her husband in his own name and for his own benefit, and without any reference to his wife’s rights to or claim against the land. The husband in his plea of intervention did not sue for the property as belonging to his wife, Annie Gestean, but claimed the land as his own and prayed that the “claims be declared a cloud upon intervener’s title, and that he have judgment quieting his title and possession to the same.” tie set out his title as one by limitation, while his wife claimed through a deed. We have been able to discover very little authority on the subject; but the case of Overand v. Menczer, 83 Tex. 122, 18 S. W. 301, seems.to be in point. In that case it was sought to bind Mrs. Overand’s separate property by a judgment in a suit brought by her husband in his own name, and the court said: “It is true, as contended by appellees, that a husband can sue alone to recover the separate property of his wife. * * * This doctrine, however, does not authorize us to assume that a suit brought by the husband is to recover the separate property of the wife when it does not even purport to have been instituted for that purpose.” If Daniel A. Gestean had, under and by virtue of his intervention, sought to introduce the deed made by him to his wife, it could have been excluded as incompetent and improper to prove his claim to the land, and if it had been admitted it would have defeated his claim. [2] The question of title was not involved in this suit, except in so far as it touched upon the matter of possession; and when Annie Gestean proved that she and her husband had been in possession of the land for 14 years and had it inclosed, and that, prior to the time that the judgment had been obtained against her husband and before his intervention in the suit, Daniel A. Gestean had conveyed the land to her by his warranty deed, this impressed the character of separate estate upon the property, and, not being a party to the suit actually or constructively, the judgment against her husband did not bind her. The judgment is affirmed.