Appellants Read et al., who were the plaintiffs below in the suit, assign as error the judgment of the district court sustaining the demurrers of appellees Walker and Allen to their petition, and dismissing the same.
I. One of the controlling questions in this case is: Are all the appellants Read et al., except Mrs. Thompson and Mr. Jeffus, who were not parties to the original judgment in favor of Mrs. Walker, and which was against the other appellants, estopped by that judgment from contesting the right of Mrs. Walker to the exclusive possession of the land in controversy, and from contesting both the title and possession of Mrs. Allen to an undivided one-half of the same ?
This question will be considered, as regards the claim of those appellants who were parties to that judgment, first, as against Mrs. Walker; second, as against Mrs. Allen.
First. As regards Mrs. Walker. We are of opinion,, under the facts stated in the petition to which the demurrer was sustained, that the original judgment in favor of Mrs. Walker and against them, and which was affirmed by the supreme court, should be held res adjudícala, not only as to Mrs. Walker’s title to an undivided one-half interest in and to the land, which is not contested, but also as' to her right as against them to the exclusive possession of the whole survey, until said appellants should show themselves entitled to joint possession with her. If that part of the judgment which gave her such exclusive possession was erroneous, it does not appear that the attention of the court below was called to it by motion to reform or otherwise; and appellants on the former appeal failed, by omitting the original petition, to *191have their record so made up as to properly present this point for the consideration of the supreme court. No sufficient reason is set forth in excuse of these failures to require that the original judgment should be reformed in this particular.
Resting, then, the question as to Mrs. Walker’s rights against certain of the appellants upon the ground of res adjudicata, will dispense with the necessity of deciding whether, as an original question, under her affirmative pleadings in the original suit, that she claimed an undivided one-half interest only; and under the pleadings of said appellants that they were purchasers in good faith, and also had title by limitation; and under the verdict of the jury and judgment of the court, that they were entitled to compensation for their improvements because made in good faith,— these appellants were merely such naked trespassers or strangers as authorized the court to give judgment for Mrs. Walker, not letting her into joint possession only, but for the exclusive possession. No opinion is here expressed on this important question.
Second. As regards the rights of those appellants as against Mrs. Allen, we are of opinion that they are not estopped by the original judgment in favor of Mrs. Walker from contesting either the title or the possession of Mrs. Allen to an undivided one-half of the lands claimed by them respectively.
The original petition of Mrs. Walker in the first suit not only failed to set up the claim of Mrs. Allen, but did not even disclose its existence. Neither her name nor claim appeared of record until the amended petition of Mrs. Walker and Mrs. Allen’s own pleadings, by which she was sought to be made a party, were filed, November 7, 1878, years after the institution of that suit, on March 12, 1878.
It is evident from the record that no issue was involved in the original suit as between appellants Read et al. and *192Mrs. Allen. There was no pleading by which an issue properly could have been raised. The court, upon the filing of Mrs. Walker’s amended petition and Mrs. Allen’s plea of intervention, announced that the cause would be continued to give Read et al. time to answer the same and to prepare the defense as against Mrs. Allen; thereupon she voluntarily withdrew her appearance and pleading. That both the court and Read et al. understood that this was an entire withdrawal of that issue, is apparent from the fact that the court thereupon overruled the motion for a continuance based upon this very pleading, and proceeded with the trial as between Mrs. Walker only and the then defendants, Read et al. This is further placed beyond all question by the action of the court in so reforming the original judgment as to strike therefrom so much of it as purported to show that Mrs. Walker sued for an undivided one-half interest in the land, “as joint owner with the heirs of William S. Allen.”
Mrs. Allen then claimed, as she now does, to be the heir of William S. Allen.
The amended petition of Mrs. Walker, filed November 7, 1878, contained a general allegation that Mrs. Allen owned the other undivided one-half interest in the land. This allegation was evidently made as a basis for the intervention of Mrs. Allen, filed at the same time and by the same attorneys, and which was subsequently withdrawn; and could not under the circumstances be held as a pleading setting up the issue of Mrs. Allen’s title. If so, then Read et al., while granted the shadow of protection against the claim of Mrs. Allen, by its withdrawal, were denied its substance by permitting it to be indirectly prosecuted, without the evidence to resist which was sought by the motion to continue, and which motion was overruled by reason of this very withdrawal.
Had that judgment, instead of having been rendered in favor of Mrs. Walker, been rendered in favor of Read *193et al. against both Mrs. Walker and Mrs. Allen, it would not be seriously contended that Mrs. Allen would be estopped by it. It is an elementary principle that an estoppel, to be binding, must have been mutual.
II. The other controlling question in this case is: Was the fact that the husbands of Mrs. Thompson and Mrs. Jeff us were parties to the original suit—they themselves not having been parties — sufficient to estop Mrs. Thompson and Mrs. Jeff us from contesting the title and possession of both Mrs. Walker and Mrs. Allen, or either of them, to the land in controversy, which is claimed to be the separate property of Mrs. Thompson and Mrs. Jeff us ?
It is another elementary principle that no one is bound by a judgment to which he was not a party, either actually or constructively. Mrs. Thompson and Mrs. Jeffus were not actually made parties. Were they so constructively ? Clearly they were not, unless service upon the husband in such case was service in law upon the wife also.
With us, husband and wife, as regards their personal property, unless when otherwise provided by statute, are separate and distinct persons in law. McKay v. Tread-well, 8 Tex., 180.
The Statute then in force gave to the husband, during marriage, the sole management of the wife’s separate property. Pasch. Dig., art. 4641. It further gave him the authority to sue, either alone or jointly with the wife, “ for the recovery of any of the effects of the wife.” Pasch. Dig., art. 4636.
With these exceptions the husband had no statutory authority to bind the wife in regard to her separate property. He could not alone dispose of it, or subject it for the payment of debts, or even to renew a debt for which it was bound, so as to prevent the bar of the statute of *194limitations. Milburn v. Walker, 11 Tex., 344; McGee v. White, 23 Tex., 180.
The word “ effects,” as used in the statute above quoted, in its ordinary legal sense does not mean real property. It is defined by our statute to include “all personal property and all interest therein ” (R. S., art. 3138, subdiv. 12); whereas property is defined to include “real and personal property.” Subdiv. 1.
That it was not the intention that the word “ effects ” should include real property is also apparent by the change in the phraseology of the above statute, Pasch. Dig., art. 4636, as made by the corresponding article, 1204, Revised Statutes, which provides that “the husband may sue either alone or jointly with the wife for the recovery of any separate property of the wife,” etc.; substituting the words, which are of broader signification — any separate property,” for the words “any effects.”
In the case of Cannon v. Hemphill, 7 Tex., 188, cited by counsel for appellees, the wife herself was a party plaintiff to the suit. And in the case of Burleson v. Burleson, 28 Tex., 417, also cited, it was held that a suit against the husband alone would, under the statute giving him the management of the wife’s separate property, be sufficient to stop the running of the statute of limitations — affecting the question of possession only, not that of title.
No case has been cited or has come under our observation (and it is believed that no well considered one can be found) which makes a judgment against the husband alone, and to which the wife was not otherwise a party, sufficient to divest her title to her separate property.
in this connection it may be observed that the statute in express terms gives to the husband the right to sue alone for the benefit of the wife, not to defend alone. Although it may not be very apparent why the authority *195was given in the one case and withheld in the other, yet such is the plain letter of the statute.
[Opinion delivered February 3, 1882.]We are of opinion that the original judgment complained of was not binding on the rights of Mrs. Thompson or Mrs. Jeffus, either as against Mrs. Walker or Mrs. Allen.
The case now before the court is not properly one to review that former judgment. It is, in its legal effect, one of trespass to try title, in favor of all the appellees as against Mrs. Allen, and in favor of Mrs. Thompson and Mrs. Jeffus as against both Mrs. Allen and Mrs. Walker.
For the reason above indicated there was error in the judgment below sustaining the demurrer, for which the sanie is reversed and the cause remanded.
Reversed and remanded.