ON APPLICATION FOR REHEARING.
CARVER, J.Defendants’ counsel, in an application for rehearing, urge:
1. That plaintiff having alleged in his petition that the forty acres in question was omitted from the deed and another tract included in lieu thereof, cannot recover merely on showing the omission by error of the tract for which he asks judgment.
2. That the evidence fails to show that the land in question, namely, SE1^ of SE% of Section 5, Township 18 North, Range 7 West, was omitted by error.
3. That the court erred in finding that plaintiff Was in possession of the land in question.
4. That the deed was void because within the prohibition of Article 2398 of the Civil Code.
5. That the deed was without consideration passing to Mrs. Cates.
I.
The gravemen of plaintiff’s complaint is the omission by error of the land sued for, and not so much the inclusion of the other tract. If the 40 acres was intended to be bought and sold and was omitted from the deed through error Of the Notary, we think this would entitle plaintiff to recover whatever be the facts about the 25 acres which were included and which plaintiff claims did not belong to defendant. Furthermore, while the, matter is not so very clear by the deeds, yet it is very likely that the 25 acres on the north side of the NW % of NE% of Section 9 did not belong to defendant. The deeds to be found in the record do not exactly correspond to those offered in evidence. Those offered were as follows:
BY THE, PLAINTIFF.
Drake to Heflin.
Heflin to Gibson.
Gibson to Burgess.
Burgess to Standifer.
Standifer to Wiley Miller.
Wiley Miller to Mrs. E. C. Miller.
Mrs. E. C. Miller to Sallie Reno.
Sallie Reno to Copeland.
Mrs. E. C. Miller to Joby Miller.
BY THE DEFENDANT.
Heflin to J. E. Miller.
Mrs. Julia Cates and Clarence Miller to Mrs. Ninny Spear.
Mrs. J. E. Cates and Mrs. Ninny Spear to Clarence Miller.
Of the deeds offered by plaintiff, the following are not found in the record, namely:
Drake to Heflin.
Heflin to Gibson.
Standifer to Wiley Miller.
Mrs. E. C. Miller to Sallie Reno.
The rest are in the record, and we also find a deed from Heflin to Drake given in 1877 covering the NW% and W% of NE*4 of Section 9 an.d other land, with right of redemption reserved. Perhaps this right of redemption was exercised, because the deed from Heflin to J. E. Miller, the first husband of defendant, of date October 6, 1898, covers 25 acres in NW% of NE14 of Section 9 and other land.
Defendants’ theory ■ is that by virtue of this deed and the deed from the heirs of Clarence Miller to Ninny Spear, and the heirs of Ninny Spear to Clarence Miller, which two deeds assigned to the vendees therein certain lands in settlement of their *33interests in J. E. Miller’s succession, that this left defendant the owner of the 25 acres in NW% of NE% of Section 9.
Of the deeds filed by plaintiff, though, the one of Wiley Miller to Mrs. E. C. Miller is dated February 5, 1898, and covers the whole NE% of Section 9.
The deed from Mrs. E. C. Miller to Sallie . Reno is not in the record.
The one from Sallie Reno to Copeland is in the record. It is dated July 13, 1912, and covers NE'% of NE,1^ and 6 acres off of the east side of W% of NE% of Section 9.
The deed from Mrs. E. C. Miller to Joby Miller is also in the record. It is dated April 9, 1915, and covers, besides other land, 20 acres on the west side of W% of NEÍ4 of Section 9.
The deed from Wiley Miller to Mrs. B. C. Miller antedates the deed from John Heflin to J. E. Miller by several months. It is likely, therefore, that defendants’ title was not good to the 25 acres in NW% of NE% of Section 9. Even if it were, though, as said above the question is not so much the inclusion of this land as the omission of the other.
II.
As to the sufficiency of the proof, on the question of whether the SE% of SE% of Section 5 was mutually intended to be included or not, this is purely a question of fact.
An appellate court should not in any case reverse the District Judge on such a question unless it finds that he manifestly erred. This rule is of special application where the question turns on the credibility of witnesses, as is the case here.
III.
The question whether the plaintiff or the defendants were in possession of the 40 acres is immaterial. The plaintiff is entitled to possession. The (description) being out of it cannot affect his rights.
IV.
Civil Code, 2398, does not, in our opinion, apply to this case, which was a sale to a third person for the purpose of raising money to pay a debt and not a giving in payment to a creditor to satisfy a debt.
The article reads:
“The wife, whether separated in property by contract or by judgment, or not separated, cannot bind herself for her husband, nor conjointly with him, for debts contracted by him before or during the marriage.”
If she had conveyed the property to Hamner, the creditor, and if the debt for which it was conveyed was her husband’s, it might be claimed that the transaction was within the prohibition of this article. As to this we express no opinion. But she did not do this. She sold the property to the plaintiff who paid for it by giving money and a note. The fact that defendant permitted her creditor to receive the money instead of receiving it herself does not alter the situation. If she had received the money herself she would have had the right to pay. it either to her own or to her husband’s creditor. It was equally her right to permit the creditor to receive it from the purchaser directly. Besides, the deeds shows that besides the $200 cash paid on the purchase plaintiff gave a note for $550.00 payable to the order of Mrs. Cates. This note must have been endorsed by Mrs. Cates over to Hamner.
V.
What is said under the last heading applies to defendants’ fifth complaint also. The debt was not the consideration flowing to Mrs. Cates but, as shown above, Miller did pay the purchase price. Her permitting it to go to Hamner, whether Hamner was her creditor or her husband’s does not entitle her to deprive Miller of property which in good faith he has bought and paid for.
Rehearing refused.