(concurring).
I concur in the view that appellant’s Motion for Reheating should be overruled because it appears to me that the judgment here appealed from should 'be affirmed, regardless of whether the land involved in this suit is or is not the same land which was involved in Cause No. 6002. Unless the judgment in the former suit constitutes a valid muniment of title in favor of appellant to the land there in controversy, then she has wholly failed to show that she is-the owner of the land for which she sues in this cause or that she is entitled to the relief which she seeks herein.
In my opinion, this court cannot properly say from the record before us that the legal effect of the judgment in Cause No. 6002 was to vest title in Mrs. Pick and her husband to any land which' might have been involved in that suit. While it is the general rule that a “take nothing” judgment in a formal action of trespass to try title has the effect between the parties of vesting title to the land in controversy in the defendant or defendants in possession thereof, I do not think this court can correctly infer from the record as a whole that Cause No. 6002 was a formal action of trespass to try title or that the effect of the judgment rendered therein was to vest the title and right of possession in appellant to any land which might have been placed in litigation in that suit. None of the pleadings in Cause No. 6002 were introduced in evidence upon the present trial and, in the absence of the pleadings, we cannot know with certainty what issue or issues might have been placed before the court for adjudication in that cause. However, from the findings of fact and conclusions of law embraced in the judgment in that cause, it appears to me that the suit of June Carroll was in all reasonable probability not a formal action of trespass to try title, but was merely a suit to remove a cloud cast upon his title to lands which were then in his possession, such cloud consisting of some kind of defect or claim then being asserted by appellant. It is apparent to me that the trial court did not intend to vest in appellant the title or right of possession in or to all or any part of the land involved in Cause No. 6002 by rendering a “fake nothing” judgment against June Carroll in that cause, and I do not think this court can properly give such legal effect to that judgment under the record before us.
Although the trial court' found in the judgment in Cause No. 6002 that Mrs. Pick owned an interest in the lands involved in that suit, contrary to the recitals contained in the divorce decree 'between her and Jone Edmondson which was rendered in 1943, it does not appear from the record now before us that she asserted such interest in that suit or that she made any proof in the present suit that the property rights which might have existed between her and Jone Edmondson had not been adjusted out of court at the time when the divorce decree was entered. Since Mrs. Pick has had three opportunities to assert and make proof of any community interest,- if any, which she might have owned in and to the land involved in this suit, and since she has failed to do so in any of the three separate suits to which she was a party, I see no valid reason why the judgment here appealed from should be reversed and the cause remanded for any further proceedings in so far as she is concerned.