The plea in abatement was not filed in due order of pleading, and had it been, it does not appear that it was sufficient, if admitted to be true, to abate this action as to Mrs. Jeffus ; for it appears that the prior suit, set up as a ground to abate this, did not involve, at the time this action was brought, the same matters.
The second, third, ninth, eighteenth, nineteenth, twentieth, twenty-first, twenty-third, twenty-seventh and twenty-eighth assignments of error, raise the same questions as to the right of the plaintiffs to maintain this action, which were raised and decided adversely to the appellants on the former appeal. Read, et al., v. Allen, et al., 56 Tex., 182.
The issues in this case could not have been adjudicated in the case of Fisher, guardian, even against the plaintiffs, other than Mrs. Thompson and Mrs. Jeffus; for Mrs. Allen was not a party to that action when it was tried. Bor were Mrs. Thompson and Mrs. Jeffus parties to that action. The former decision of these questions must be held decisive of them.
The record in this case presents no facte necessary to a proper decision of those questions, which did not appear on the former appeal; nor does it show facts which would authorize a different decision.
There was some confusion in the evidence for the defendants, as well as that for the plaintiffs, in reference to the name of the original grantee of the land in controversy, and we do not see that the evidence of the witness Duren could have prejudiced the appellants.
*19We are of the opinion that the deed of Mrs. Spivy, the deed from Bectonto her, the deed from Cundiff to Bead, and the deed from Daily to Cundiff, were properly admitted in evidence; for, under the evidence, there could be no doubt as to what land was conveyed by them.
The testimony of the witness, Broxon, was received as to the time of the settlement and circumstances of occupation by Calloway, and, if not then made so full on that point as it might have been, this did not result from any fault of the plaintiffs.
It might have been proper to have admitted this evidence, to show that Calloway had applied for and had surveyed a pre-emption claim on the land, but, without something more, it is not probable that this could have affected the claim, under the statute of limitation, in the face of his deed by which he conveyed six hundred and forty acres of the land.
The court did not err in excluding the evidence of the witnesses, Bunn and Williams, offered for the purpose of explaining what was done, or understood to be done, in the case of Fisher, Guardian, v. Read et al.; for the record, in that case, was before the court, and afforded better evidence of what was done in it than would the testimony sought to be introduced.
The charge of the court clearly informed the jury that Mrs. Walker was entitled to one-half of the entire league of land in controversy, as against all the plantiffs, except Mrs. Thompson and Mrs. Jeffus, but, as to them, left the question of title, even as against Mrs. Walker," to be determined by the evidence, clearly informing the jury that these plaintiffs must recover, if at all, upon the strength of their own titles, based on limitation.
This was in accordance with the former decision made in this ease. Read v. Allen, 56 Tex., 182.
The certificate of the county clerk, Gillespie, made in 1855, that there was on record, in his office, a deed from the original grantee of the land to Charles Howard, through whom Mrs. Walker claims, for an undivided half of the league, the record having been destroyed, as held in the case of Fisher, Guardian, v. Read, was admissible, in connection with the other evidence, to prove the existence of such a deed.
The court, however, did not err in instructing the jury that they should not consider the recitals in that certificate, for the purpose of establishing the execution, delivery, or contents of that deed.
The defendant, Allen, was shown to be the widow and legatee of Wm. S. Allen, and it was further shown that the original grantee of the land made a deed to a person of that name for the share of the *20league which Mrs. Allen claims. The court instructed the jury, in. effect, that it would be presumed that the Wm. S. Allen to whom the original grantee conveyed, was the same person through whom Mrs. Allen cjaimed. There was, however, some evidence, slight though ifc was, which the court thought made it necessary to submit the question of identity to the jury, and this was done.
Whether the evidence was such as to require this issue to be submitted to the jury is unimportant, in view of the fact that the finding Of the jury in favor of the plaintiffs was expressly based on their claim to title by limitation. The charge of the court as to the time when the statutes of limitation ceased to run, as to Mrs. Allen, was that they did not cease until the plaintiffs were dispossessed through the writ of possession that issued under the judgment in favor of Fisher, guardian. This was correct. Read v. Allen, 56 Tex., 182; Stoval v. Carmichael, 52 Tex., 383.
At to Mrs. Walker, the court instructed the jury, that the judgment in favor of her guardian was conclusive of her right against all the plaintiffs, except Mrs. Thompson and Mrs. Jeffus; but as to them, held, that the suit by the guardian of Mrs. Walker, to which the husbands of Mrs. Thompson and Mrs. Jeffus were parties, did not suspend, as to those married women, the running of the statute, because they were not parties to that suit. This, we are of opinion, was error. Burleson v. Burleson, 28 Tex., 417.
The husbands of Mrs. Thompson and Mrs. Jeffus were in possession of the lands claimed by their wives as their separate estates, at the time the suit of Fisher, guardian, was brought against them and others, and while the wives could not by that action be affected in their title or right to possession, yet the possession which their husbands held for them ceased to be, within the meaning of the law, a peaceable possession, as would it had the action been against their tenants in possesion. Read v. Allen, 56 Tex., 180, 194; Read v. Allen, 58 Tex., 382; McKelvain v. Allen, 58 Tex., 388.
If Mrs. Thompson is the owner of the land which she claims in this action, then she is entitled to recover a reasonable rent therefor during the time the same has been in the possession of the defendants; and if, during a part of that time, the land was used by her husband, under an agreement between him and the defendants, it would be proper that the rent for that period should be deducted from the rent which otherwise they ought to pay. It seems that there was a suit pending at the time this cause was tried, in which the defendants were seeking to recover rent from Thompson, the husband, for the land during a part of the time for which Thompson and wife, in this case, *21asked and recovered rent. These matters should be adjusted in this case. The rents claimed by Thompson and wife, if the land she claims be found to belong to her, will be community property, but this furnishes no reason why the whole question as to rents should not be adjusted in this cause, for all the necessary parties are before the court. The plaintiff Bead claims, in his petition, an undivided one-half of the league, not embraced in the several tracts claimed by his co-plaintiffs, and in two other tracts, and the judgment so stands in his favor; but we find that he sold two tracts of land out of the league to which it is not shown that he re-acquired title. The parties who appear to have title to them, from Bead, are not parties to this action, nor are these tracts the same he excludes from his claim in the petition. We are of the opinion that the evidence is such as to authorize the maintenance of this action by Mrs. Arledge.
In view of the disposition that will be made of the case, it is unnecessary to consider the sufficiency of the evidence to support the claims of Mrs. Thompson, Mrs. Jeffus and B. hi. Bead, under the statutes of limitation. As each of the plaintiffs claim separate parts of the league of land in controversy, the action by them all is irregular, and had objections been made, at proper time, and in proper manner, to the maintenance of this joint action, they should have been sustained ; but this was not done, and as this relates to the procedure, and not to the rights of the several parties, the objection cannot be made in this court.
We are further of the opinion that the defendants ought not now, after having so long acquiesced in this course of procedure, to be heard to urge this objection at all. Such a course would now operate to the prejudice of the plaintiffs, and might secure to the defendants advantages which they would not have, had they urged objections to this course of procedure when this action was first brought. As to Mrs. Thompson and her husband, Mrs. Jeffus and her husband, and B.ÍT. Bead, the judgment will be reversed, but, as each of the plaintiffs assert title to separate and distinct tracts of land, the judgment as to all the other plaintiffs will be affirmed, and they can take such action in the court below in reference to partition as may be proper.
The costs of the court below, so far incurred, and as may hereafter be incurred in partition, should be adjusted between the plaintiffs in whose favor the judgment is affirmed and the defendants, as should the cost of this appeal be adjusted between all parties to the action in accordance with their several interests in the subject of litigation, and the disposition of the case which will here be made. This can best be done ultimately in the district court.
*22The costs incurred in this court by the plaintiffs in whose favor the judgment is affirmed, will be adjudged against the defendants, who 'will recover all other costs in this court incurred, against the plaintiffs as to whom the judgment is reversed.
The judgment of the court below is affirimed in favor of all the plaintiffs, except R. F. Bead, George M. Thompson, Margaret F. Thompson, Caleb Jeffus and Fancy Jeffus, as to whom the judgment is reversed and the cause remanded. It is so ordered.
Affirmed as to all plaintiffs, except B. F. Bead, George M. Thompson, Margaret F. Thompson, Caleb Jeffus and Fancy' Jeffus, AS TO THEM REVERSED AND REMANDED.
[Opinion delivered March 23, 1886.]