On Motion for Rehearing.
Vigorous complaint is made of our failure to pass upon all of appellants’ assignments. Reasons for same appear in the original opinion. However, we have concluded that appellants are entitled to a fuller statement than appears on a former appeal with respect to two of their propositions.
Paragraph 19 of the opinion on the former appeal of this case disposes of the question raised as to the right of plaintiff Emeline Smith to recover by virtue of her acceptance and retention of compromise money given in settlement of a certain judgment therein fully described. Some of the language used by the writer of the opinion on the former appeal is perhaps not altogether accurate or full enough. We understand the rule in Texas to be that the husband is an indispensably necessary party, with certain exceptions, to suits for the recovery of the separate property of the wife. Article 1983, R. S. 1925. Nor is such necessity dispensed with by the broad language used in a subsequently enacted law embodied in article 4614. Barmore v. Darragh (Tex. Civ. App.) 227 S. W. 522.
Being a necessary party to the suit under- the facts of this record, it .logically follows, we think, that the husband’s consent to a settlement was indispensably necessary. 30 C. J. page 748, § 362, and authorities there collated. This feature of the case has apparently remained unnoticed and any future trial will be governed by the above announcement.
A lack of authority in the attorney who filed a suit for Mrs. Smith et al. against the present defendants, prior to the instant one, either to file or compromise same is fully alleged in plaintiffs’ petition, to which exceptions were sustained. Likewise a lack of knowledge, either of the. pendency of such suit or that any judgment therein had been rendered when $409 was paid and retained by Mrs. Smith, is fully set out. That an attorney has no authority to settle a suit merely by virtue of his employment is' well settled. 5 Tex. Jur. page 461, § 52. He must have special authority to do so. Id. An unauthorized compromise may be ratified, however, by a receipt and retention of the benefits of the transaction with knowledge of its character. 5 Tex. Jur. p. 465.
If, with her husband’s consent, and with knowledge of the previous transactions in Childress county to which it related, Mrs. Smith received and retained the $400 paid in settlement of her claim to the land in controversy, she will be held to have ratified the judgment rendered- against her and her husband. If she had no such knowledge, or if her husband failed or refused to consent thereto, any right she had to the lands in controversy remained unaffected thereby.
We will assume that pleadings and rulings *1111thereon will be governed by the above without further elaboration on our part.
A discussion in the original opinion of the cause of action relating to the McGee deed applies also to the cause of action attempted to be alleged with reference to the deed from Mrs. Minerva Kreis to D. F. Kreis, particularly in respect to the lack of allegations that Mrs. Minerva Kreis died intestate.
We decline to be drawn into a lengthy discussion of what we regard as immaterial matters under our holdings herein.
The motion is overruled.