Delaney, J. Com. App.
The charge of the court is too long to be copied into this opinion. It presents to the jury every phase of the case as it appears in the pleading and evidence. The assignments of error, nine in number, relate mainly to the charge of the court, and point out very clearly several parts of it which appellants regard as erroneous. The first assignment, however, relates to the action of the presiding judge in declining to sit in the case. We *58do not think this assignment well taken. The judge had been of counsel for some of these plaintiffs (or for parties whose interest some of these plaintiffs now claim) in a former suit, so nearly allied to the present one, that the defendant in this suit had pleaded the judgment in the former in bar of the prosecution of the present suit. The parties to the two suits are practically the same; for the plaintiffs in this suit must be considered as representing the rights of their co-plaintiffs in .the former suit, who have died since it was determined; and the defendant must be regarded as standing in the place of Joseph M. Brown, the defendant in the former suit. And as to the causes of action in the two cases, the only circumstance which prevents them from being absolutely the same is, that plaintiffs in the former suit dismissed as to this piece of property, and urged their contest about the remainder, which was claimed on the one side and held on the other by precisely the same right. So far as the decision of the judge is concerned, in holding himself disquali-' fied, we think something at least should be left to his discretion, and that the supreme court would not be inclined to revise his action unless there was manifest error. Yet we do not think that the plea of former judgment should have been received as a bar to this suit.
The court or the jury in the first case might very well construe the deed from the parents to Emily 0. Brown, explained as it was by the parol evidence, as vesting the title in Joseph M. Brown, the defendant, as his separate property; and hence the judgment for him in that case. Tet had the additional evidence which was adduced in this case been brought before the former court or jury, namely, that Joseph M. Brown had directed or permitted a part of that property or its proceeds to be conveyed to his wife, it is not at all inconceivable that they might have construed his action as evincing an intention to make this property the separate property of his wife. The law, in fact, would so presume from the act itself, unless the presumption was rebutted by direct evidence, or by the circumstances attending the act.
The theory of plaintiffs in error was, that the land was the separate property of the wife; that of the defendant in error, that it was the separate property of the husband. The court, we think, explained correctly to the jury the law applicable to both these views, and left them to decide upon the facts. The judge has here further instructed them, that, if they found that the property was community property, they should find a verdict for the plaintiffs for one-half. Counsel for plaintiffs in error insists that there ivas no evidence to justify this part of the charge. But if we admit that it *59was error, it was not an error of which he can complain. If there wrere nothing more we should be inclined to affirm the judgment. But we think there was error in the charge upon the statute of limitations, and although not assigned, avc think the error material; and as we cannot feel certain that it did not influence the finding of the jury, our opinion is that it must cause a reversal of the judgment. The court gave the charge applicable to the period of five years, though it Avas manifest that that period could not' have elapsed between the 30th of March, 1870, and the date of the filing of the suit. The court also gave the charge applicable to the limitation of three years. It will be recollected that the court had given instructions to the jury applicable to three different theories of the case, namely, that the land might be the separate property of the wife, the separate property of the husband, or community. How it is manifest that if the land was either the separate property of the wife, or community property, the statute of three years could not apply, because in either of these cases the deed of the surviving husband could not constitute color of title. See Veramendi v. Hutchins, 48 Tex., 531" court="Tex." date_filed="1878-07-01" href="https://app.midpage.ai/document/veramendi-v-hutchins-4893012?utm_source=webapp" opinion_id="4893012">48 Tex., 531, and cases cited. It avüI be observed that there is in the pleadings no replication to the plea of the statute of limitations.
The correct practice, in cases where the defendant pleads the statute, Avould seem to be for the plaintiff to set up in reply any disability which may take his case out of its operation. Otherwise he will nob be permitted to prove the disability because it has not been alleged. In such case the defendant has only to prove the truth of his plea and his defense is complete. See Hughes v. Lane, 25 Tex., 356" court="Tex." date_filed="1860-07-01" href="https://app.midpage.ai/document/hughes-v-lane-4889820?utm_source=webapp" opinion_id="4889820">25 Tex., 356.
For the error in the charge, Ave think the judgment should be reversed and the cause remanded.
Beversed and remanded.
[Opinion delivered May 1, 1882.]