We will not pretend to discuss and de-
termine all of the alleged errors committed by the court below, in the bills of exceptions and the assignment of errors. A single error, that set out in the fourth assignment, permitting the ex parte statements of the defendant, M. A. Hardin, as testified to by the witnesses, to go to the jury, must reverse the case. These statements were mere hearsay evidence, and should have been excluded.
We think, also, that the fifth assignment of error is well taken. The copy of the original certificate on which the patent issued to the land in controversy, and all other evidence going to show that the land was acquired during the marriage, should have been permitted to go to the jury, not to show that the plaintiff now has a community interest in it, but to show that there was a good and sufficient consideration for the conveyance from Milton A. Hardin to the plaintiff. This should have gone to the jury, in connection with the evidence which tended to *620show that the deed of conveyance was executed under duress, so that the jury might determine what was the moving cause.
Possibly, if all the evidence legitimate had gone to the jury, and that which was not legitimate had been excluded, the jury might have reached a different conclusion.
It is true, that if duress has been made out, it is not material to inquire whether there was a sufficient consideration to support the conveyance or not; because, if there was duress, it. would annul and avoid an act, whether by deed or by simple contract. (McGowan v. Bush, 17 Texas, 195.)
But the jury should have had all the pertinent facts before them, which might tend to show that not duress, but other motives may have induced Hardin to make the deed.
As this cause must be remanded for a new trial, we deem it proper to state our view of the status of the property in controversy.
M. A. Hardin, the appellee, obtained an augmentation grant of land by reason of his marriage with the appellant, Mary T. Hardin. This land was therefore community property.
In 1864 the appellee executed to the appellant a deed of conveyance to one-half of this land, and thereupon they severed their conjugal associations.
In 1867 appellant sued for and obtained a divorce from the appellee. The appellee, though brought into court by personal service in that suit, entered no plea whatever, and the trial was ex parte.
In this suit for divorce should have been tried and settled all property rights between the parties. Article 3452, Paschal’s Digest, reads as follows:
“In all suits and proceedings for divorce from the bonds of matrimony, the defendant shall not be compelled *621to answer upon oath, nor the petition be taken ‘ for confessed’ for want of an answer; but the decree of the court shall be rendered upon full and satisfactory evidence, independent of the confession or admission of either party, and upon the verdict of a jury affirming the-material facts alleged in the petition ; and the court pronouncing a decree of divorce from the bonds of matrimony shall also decree and order a division of the estate-of the parties in such way as to them shall seem just and right, having due regard to the rights of each party and their children, if any; provided, however, that nothing herein contained shall be construed to compel either party to divest him or herself of the title to real estate or to slaves.”
If not so settled, all controversy on that subject was waived by both parties, and that waiver was final as to both. (Foster v. Wells, 4 Texas, 101; 1 Blackford, 360 1 Johns. Cases, 436.)
Each party was left by the decree of divorce with such property as he or she had at the time. If there was a cause of controversy between them as to any property, such controversy should then have been made; if not made, it was waived and lost.
A deed had been made three years before by the husband to the wife. It is claimed by the husband that the-deed was obtained by duress. If it was, it was voidable, not void. In the divorce suit the issue of duress should have been made, and the conveyance would then have been avoided, if the proof had shown such duress.
The issue was not made at the only time and at the only suit in which it could be made as between these parties ; the husband thereby waived his remedy, and it is lost forever. The matter is res adjudicada.
The cause is reversed and remanded.
Reversed and remanded.