Maria de la Luz Garcia, joined by her husband, Genevevo Garcia, and Josefina Jewett, residents of the Mexican Republic, instituted this suit against defendant in error, in trespass to try title to a certain lot of land on the north side of Dolorosa street, just west of San Pedro creek in the city of San Antonio. Defendant in error pleaded three, five and ten years limitation, and improvements in good faith. Plaintiffs in error excepted to the answer, and in avoidance of the pleas of limitation, pleaded continued coverture of Mrs. Garcia since November 9, 1862. The case was submitted to a jury, and resulted in a verdict and judgment for defendant in error. This writ of error was sued out by Maria de la Luz Garcia and her husband.
The exceptions aimed at the pleas of limitation were properly overruled. The pleas contained all of the statutory requirements.
The demurrer to the plea of improvements in good faith was not well taken. The deed from Maria and Genevevo Garcia and Josefina Jewitt to Conrad Lehman was, although not legally acknowledged by the married woman, properly admitted as evidence against Josefina Jewitt, and it was the duty of the court to restrict the evidence so as not to affect the right of the married woman. The question of the admissibility of the copy of the deed taken from the record under the terms of the agreement of counsel will not probably arise on another trial, and it will not be necessary to express an opinion on that point.
The facts in this case show that the common source was Clara Ximenes, From her the property descended to her son Antonio Guiterez, who married Josefa Silva, who bore him two children, Antonio Guiterez and Maria Concepcion Guiterez, who upon the death of their father in 1816 inherited the land in dispute. The latter married one Jewitt and bore him two children, Maria, who, in 1862, married Genevevo Garcia, and Josefina Jewitt who never married. After the death of their parents, the title to their mother's property passed to Maria and Josefina. The interest of Josefina was conveyed by her to Lehman, and if it had not been so conveyed, was lost to her by limitation.
The deed to Conrad Lehman was made in 1875, when Mrs. Garcia *Page 486 was a married woman, and the deed not being acknowledged by her in the manner required by the statute, was, so far as she was concerned, an absolute nullity. Berry v. Donley, 26 Tex. 737; Cross v. Everts, 28 Tex. 524; Whetstone v. Coffey, 48 Tex. 269 [48 Tex. 269]; Looney v. Adamson, 48 Tex. 619 [48 Tex. 619]; Breitling v. Chester, 88 Tex. 587 [88 Tex. 587]. As said by the court in the case of Cross v. Everts, above cited, "The privy examination, acknowledgment and declaration before the officer, as required by the statute, is the essence and foundation of the obligation of her deed." The title of Mrs. Garcia to a one-fourth undivided interest in the land is still in her, unless the same has been lost by limitation.
For limitation to prevail, the adverse possession of the land must have begun prior to November 9, 1862, when Mrs. Garcia was married, and that adverse possession must, to avail defendant in error, be connected with the title of defendant in error, or must show an outstanding title in some other person.
It is claimed by defendant in error that the evidence of Santiago Guiterez shows that his father Antonio Guiterez was holding adverse possession of the land for many years before the marriage of Mrs. Garcia, which contention we do not think is well founded, but if it were true, it could not result in any benefit to defendant in error, because no privity is shown between the title of defendant in error, and that of Antonio Guiterez. This was necessary in order for defendant in error to avail himself of such possession. Wheeler v. Moody, 9 Tex. 372; Trueheart v. McMichael, 46 Tex. 222; Dotson v. Moss, 58 Tex. 152 [58 Tex. 152]. Defendant in error claims title through the deed of the plaintiffs to Conrad Lehman, and it does not appear how the possession of one claiming adversely to the title of the vendors of defendant in error could inure to his benefit. The facts failing to show adverse possession in Antonio Guiterez, the question of outstanding title can not arise. The deed of partition executed by Antonio Guiterez settles the question of adverse possession in favor of plaintiffs in error. The deed recites that "Conrad Lehman, assignee of Maria de la Luz Garcia and Genevevo Garcia, her husband, and Josefina Jewitt, children and only heirs of Concepcion Guiterez y Silva de Jewitt, who was a daughter of D'na Josefa Silva, and Jose Antonio Guiterez, son of said D'na Josefa Silva, deceased, are joint owners of an undivided lot or parcel of land in the City of San Antonio, Texas."
Mrs. Garcia was not a party to the partition of the land between Lehman and Guiterez, and was not bound by it. No ratification of the partition is shown by the record. The acts of plaintiffs in error in suing defendant in error for the whole of the land allotted, in the partition to Lehman, does not indicate a ratification of the deed to Lehman or of the partition deed signed by Lehman. Plaintiffs in error, having sued for the whole of the land, could recover the interest they may be entitled to.
The question of any equities that might possibly arise in regard to the money received by Mrs. Garcia from Lehman, although urged in *Page 487 the brief of defendant in error, is not raised in the pleadings, if in the evidence, and we are not called upon to discuss it.
It has been held in this State that "notwithstanding the deed of a married woman may be invalid, and would convey no title by reason of a non-compliance with the statute, nevertheless such a deed may serve as a basis for a claim for the value of improvements made in good faith." Johnson v. Bryan, 62 Tex. 623 [62 Tex. 623]. In the same opinion the following language is used: "All who deal with a married woman directly, or deal in any manner affecting her rights, are chargeable with a knowledge of her disability, and that she can only convey land in the manner prescribed by statute." There is an inconsistency between that declaration and the one first quoted that we do not undertake to reconcile.
As plaintiff in error can only recover a part of the land in controversy, the question of the value of the improvements for which they might be held responsible, can only be determined in partition, as it may be that on an equitable division of the land, no improvements would be allotted to plaintiffs in error. Yaneey v. Batte, 48 Tex. 46; Johnson v. Bryan,62 Tex. 623.
The judgment is reversed and the cause remanded.
Reversed and remanded.
ON MOTION FOR REHEARING.