The sale of the certificate by John to Simpson Holloway supersedes the necessity of investigating the proceedings had in the district court as between them.
On the 9th day of Hovember, 1857, Mrs. Elizabeth Holloway, with her husband, the said Daniel Holloway, intervened in this cause, and claimed the certificate and location as her separate property, under a transfer made to her by John Holloway, in February, 1851.
The location under which she claims was made in September, 1844, (the regularity and validity of which we will not now determine;) and though the original petition was filed October, 1851, it must be held that her rights were not involved in this suit before the date of her interven*176tion. It will appear that the transfer was made to her some eight months before the institution of the suit. (8 Tex., 534.)
We are of opinion that the suit was improperly brought in the name of Daniel Hollaway, as the agent and attorney in fact of John Holloway. Suits cannot be instituted in the name of the agent; they must be brought in the name of the principal in whom the right may be, with some exceptions, as, when the contract is made in the name of the agent, or he has some interest in the subject-matter of the suit. And we are satisfied that the exception to the petition should have been sustained on this ground. (Robson v. Tait, 13 Tex., 272.)
The court, in substance, instructed the jury, that if the land located was within the limits of the Guerrero claim, and this suit was brought before the termination of the suit contesting the validity of that claim, her rights were not affected by a failure to have the survey, made on the location, and refused to instruct them that the location became vacant under the provisions of the act of February 10, 1852. The act of February 10, 1852,-reads as follows, to wit: “All lands heretofore located by virtue of any genuine claim to land shall be surveyed within twelve months from the passage of this act, and all lands which may be hereafter located shall be surveyed within twelve months from the date of the location, or the said locations in every case shall be null and void, and the lands be subject to relocation and survey as other vacant and unappropriated lands.” [Paschal’s Dig., Art. 4568.]
To obviate the effect of this act upon the location made in 1844, it is contended that the surveyor refused to survey the land because it conflicted with the Guerrero claim, then in litigation; and that it was not decided to.be invalid until the spring term of the district court, 1851, and the judgment was affirmed in the Supreme Court in 1853, and that these impediments to their rights, together with this suit, *177had the effect to save their rights under that location from forfeiture.
From the decisions of this court, we are satisfied that the location of 1844, if not surveyed as directed in the act of February 10, 1852, became null and void on the 11th February, 1853, and that it will not support this action, (11 Tex., 41,) unless this suit, begun by Daniel Holloway for the benefit of John Holloway in 1851, will have the effect to exempt it from the forfeiture denounced by that act.
In the case of Edwards v. James, 13 Tex., 52, the surveyor refused to make the survey according to the location, for the reason that it conflicted with an old claim, and the owner had sued out a mandamus against the surveyor, to compel him to survey it before the expiration of the time allowed by the act aforesaid, and that suit was still pending.
Says the court: “It is not believed to have been intended to embrace a case like the present,, where there were legal impediments to the survey, that could only be removed by an adjudication on the locator’s right to have the land selected, located, and surveyed.”
We do not feel at liberty to extend this exception beyond the class of cases here designated, and we are not satisfied there has been sufficient diligence used in this case to place this location within the range of this exception. In the case cited, the surveyor, on demand, refused to make the survey, and thereupon the locator sued out a mandamus against him. All the rights of the locator and the old claimant were brought before the court, in order that the impediments to the survey might be investigated and removed by an adjudication; but if it be admitted that the rights of the real owner of this location were involved in this suit as at first filed, the proof does not show that the owner ever did, in fact, apply to the surveyor to survey the land. True, some person not named, a short time after the location, did make such an application to the deputy surveyor, and he refused to make the survey, for the reason of the conflict *178with the old claim. No mandamus has been sued out against the surveyor, or request made of him to survey the land, before or since the decision against the validity of the Guerrero claim by the courts, except as aforesaid. This suit is not brought to remove the impediments arising from the Guerrero claim, but to enjoin'Simpson Holloway from perfecting his survey of six hundred and forty acres on the same land into a patent. Ho effort is made to enforce against the government the location of 1844.
There appears to be a want of diligence on the part of Mrs. E. Holloway in the use of the means given her by law to remove the supposed impediments to the enforcement of her rights under the location claimed by her too great to save her rights from the forfeiture under the said act of the legislature.
If it be admitted that the pending of the suit contesting the validity of the Guerrero claim furnished a sufficient excuse for not surveying the land under the location of 1844, it is admitted that this impediment was removed by the decision of the district court in the spring of 1851, or, at furthest, by the Supreme Court decision affirming that of the district court in 1853. It has not been made to appear, by allegation or evidence, that any application was made thereafter to the surveyor to survey the land, nor that any other act was done to procure the survey. Mrs. Elizabeth Holloway appears never to have done anything to enforce her rights, or to have them respected, until her intervention in this suit, some four years after the supposed impediment arising from the Guerrero claim 'was removed. From the foregoing reflections, we believe the district court erred in giving the instruction complained of, and in refusing to give the one referred to, -as asked by the defendant below.
The issue made by Mrs. Holloway was, that the certificate and location were her separate property, and in support of it she produced in evidence the transfer from John Holloway to her, dated February, 1851, which purported *179to have heen executed for a valuable consideration expressed. There was no evidence that it was a gift, or that her separate property had been given in exchange for it. The rule appears to be well settled, that such a transfer to the wife raises the presumption that the property transferred belongs to the community of herself and husband, and it devolves upon her to prove the contrary, which was not attempted to be done in this case.
The husband can sue for the separate property of his wife alone or with her, and if he sues for it in his own name, and evidence showing it to be her separate property be introduced without objection, it will be held sufficient to support the issue, because he has the right to the possession and management of it, and therefore a limited interest in it. (13 Tex., 628; 24 Tex., 304.) But if it be sped for as the property of the wife, and is averred to be her separate property, that being the issue, evidence to support that right must be introduced, and evidence that the property is that of the husband or community property will not support the issue; and for the reason that the certificate was not shown to be the separate property of Mrs. Holloway, the issue was not proved by her so as to support the verdict, and for this the new trial should have been granted. (12 Tex., 412.)
It might be contended, that the averment of Daniel Holloway in the petition, that the certificate and location were the separate property of his wife, should be taken as sufficient evidence of the fact. As between them, perhaps it might be held sufficient; but when the rights of third parties are involved and affected by that fact, better evidence must be adduced.
In the original petition, her husband, Daniel Holloway, stated, under oath, that the certificate was the property of John Holloway, for whose benefit he sued; and the fact may be, that the defendant, Simpson Holloway, relying upon the truth of this averment in good faith and without *180any notice of the transfer to his wife, Elizabeth, did purchase it of John Holloway, in 1856, for a valuable consideration, then paid; and, if that be the case, it is believed that Daniel Holloway would be estopped from denying the truth of his averment. And it is very apparent, if he could, by a mere allegation in his petition, change the prima facie character of the title to the property purchased from community to the separate property of his wife, he thereby, with great facility, might deprive the defendant of a just defense. ¥e are of opinion, more satisfactory evidence of it being her separate property must be produced. (Hatchett v. Conner, 23 Tex., 613; this term at Tyler,) [ante, 104.]
The judgment below is reversed, and cause remanded for further proceedings, in conformity with this opinion.
Reversed and remanded.
[Donley, J., having been of counsel, did not sit in this case.]