ON APPELLANT’S MOTION FOR REHEARING
In her motion for rehearing appellant contends that we erred in holding that ap-pellee was entitled to judgment as a matter of law because of the permanent separation of appellant and her husband.
Appellant argues that since appellee’s title depends on a deed signed and acknowledged by her as a married woman he is estopped to rely on the deed as one signed by a feme sole; also that his contention that the deed was valid without acknowledgment constituted “an avoidance or affirmative defense,” which could not be raised on the general denial but was required by Rule 94, T.R.C.P., to be specially pleaded. She argues that if appellee had pled this theory she would not have abandoned the claim of forgery of her signature but would have requested an issue thereon.
*149Appellant testified that she was married to Ira Martin in July of 1947 and lived with him until the early part of 1948, when they were separated, and that they were divorced in 1949. On cross-examination she testified unequivocally that she and Ira Martin were permanently separated in 1948, and that when they separated she intended it to be permanent. They were still separated at time of trial eighteen years later. These facts appeared on appellant’s own presentation of her case and were admitted in evidence without objection on her part. Appellee had generally and specially denied appellant’s allegation of forgery of her name to the deed, and made clear in his answer that he was claiming good title under the deed. Was it also necessary under Rule 94, T.R.C.P., for appellee to plead his theory that under the undisputed facts appellant’s signature alone validated the deed ? We think not. Hearne v. Bradshaw, 158 Tex. 453, 312 S.W.2d 948 (1958), holds that under somewhat similar facts “the parties are deemed to have tried the issue of permanent separation by consent and will not be heard to say on appeal that it was not raised by the pleadings. Rule 67, Texas Rules of Civil Procedure.”
Appellee moved for judgment on the verdict as well as upon the specific ground here in question. The judgment contains a finding by the court that at the time of' the deed appellant and her husband had permanently separated. No objection was made to the motion, to this finding by the court, or to the judgment on the ground that they were unsupported by a special pleading. Moreover, in appellant’s amended motion for new trial there is no assignment of error based on the action of the court in rendering judgment on that ground. Therefore, in any event, we consider that the right now asserted was waived.
The motion for rehearing is overruled.