The court did not err in admitting in evidence the proceedings in the two suits known in the transcript as-Ho. 10,623 and Ho. 10,997, which were brought by Richard Schieleagainst Frederick Jergens to establish the right of the former in the two tracts of land bought by his father from John F. Crawford.
These lots, upon the defendants’ own theory of the case, were five-eighths the separate property of the defendant Frederick Jergens, and three-eighths the community estate of himself and his wife Mary.. The appellee’s claim is that he owned an undivided interest of one-half.' in the property when suit Ho. 10,623 was brought, and an undivided, interest of three-eighths in it at the commencement of suit Ho. 10,997. The decrees in each of these cases fixed the respective interests of the parties according to the claim of the plaintiff. It' clearly appears, then, that the contest between the parties, and, especially in the last case, was whether- the portion of the lots im controversy belonged to the plaintiff or was part of the community.' estate of the present appellees.
This depended in the last suit upon whether a deed for that por*258tion of the property in controversy was valid or obtained through fraud by Frederick Jergens from the appellee. To such a suit the wife was not a necessary party, and her presence in the cause would not have made the decree rendered in it any more binding than if obtained against the husband alone, unless she was an essential party by reason of the fact that the homestead was located on the premises.
If there was any defense that could have been urged growing out of her homestead rights which would have defeated the action, then she' was a necessary defendant in the cause.
But this was not the case. Had she appeared and pleaded, and proved the facts as to her homestead which she pleaded and proved in the present case, or any other conceivable state of facts applicable and appropriate to the controversy between the appellee and her husband, they would not have availed as a bar to the plaintiff’s demand.
Mr. Thompson, in his work upon Homesteads, § 696, says that “to any proceeding in which the right of homestead is not available as a defense, . . it is obvious that the wife is not, on account of the fact that the locus in quo constitutes the family homestead, a necessary party.”
He illustrates this proposition by the case of a bill to foreclose a mortgage given for purchase money of the homestead; and the supreme court of Michigan has held that to such a bill the wife need not be made a defendant. Amphlett v. Hibbard, 29 Mich., 295. But that is not so strong a case as the present. In such an action the question might arise whether the mortgage was actually given for purchase money or not. Should the wife be able to establish the negative, then her plea of homestead would defeat the action.
But there was no fact which, if proved in this case, could have let in the homestead rights of the wife as a defense to the plaintiff’s claim.
The only question between the parties was as to whether or not Schiele’s deed to Jergens was obtained by fraud. That answered in the affirmative, no homestead right of the wife could prevent the plaintiff’s recovery. Decided in the negative, judgment must necessarily go for the defendant whether the property was a homestead or not.
Ho partition of the property was decreed in either of the former cases. It was the sole object of the present action, and hence the wife was made a party defendant. In this case she had an opportunity to be heard as to her homestead rights, and yet she set up *259nothing in the way of such rights which conld have defeated this or the former actions; but merely relied upon the same defenses in substance which had been determined in the former suits in favor of the appellee, with all necessary parties before the court. She received in the judgment rendered in this cause the benefit of her claim of improvements placed upon the homestead, which was all that she was entitled to, the title to the lots having been fully settled in the previous suits.
As to the point raised, that the court' could not decree a partition of the homestead, it will suffice to say that the probate law of 1848 was in force at the respective dates of the death of appellee’s father and mother, and governed the question as to the partition of the homestead. Putnam v. Young, 57 Tex., 464.
■By that law the homestead could be partitioned when an estate was solvent, and such was the case in the present instance, for aught that appears to the contrary. Pasch. Dig., art. 1305.
We are of opinion that the decrees and proceedings in the two cases, ¡Nos. 10,623 and 10,997, between Schiele and Frederick Jergens, were rightly admitted in evidence. We think further that they had fully settled the interest of each of those parties in the land sought to be partitioned, and that the question of the amount of that interest could not be reopened in the present suit. All that the court could do was to direct the partition in accordance with the interests thus established, allowing to the party making the improvements the value of the same, which "was done by the court below; and there is no error in the judgment and it is affirmed.
Affirmed.
[Opinion delivered March 4, 1884.]