delivered the opinion of the court.
Thе suit was one instituted by Mrs. L. B. Gabb against a number of defendants for the recovery of a half interest in a tract of land of 94f *29 acres which she claimed was community property of herself and her fоrmer husband, C. J. Ochse. The defendants claimed title under one J. M. Cobb, in whose favor a judgment for the land had been previously decreed against Ochse in a suit to which Mrs. Gabb was not- a party.
The questiоn in the case is whether this judgment is binding upon Mrs. Gabb.
Briefly recited, the facts are these: The land was originally owned by Thomas B. Farrell. In 1884 he made a deed conveying it to his minor son, B. F. Farrell, which, as he clаimed, was not to take effect until his death. In some way, however, the deed was filed for record the day following its execution. Such title as the community estate of Ochse and Mrs. Gabb, then his wife, acquired to the land was in virtue of a deed from B. F. Farrell, conveying it to Ochse, dated September 18, 1900.
Mrs. Gabb filed a suit for divorce against Ochse on December 24, 1900, alleging the land to be their cоmmunity property and praying for its partition. She subsequently abandoned all claim to it. This was recited in the divorce decree, which was rendered in her favor on March 15, 1901.
Shortly after the institution оf this divorce suit, that is on January 29, 1901, Thomas B. Farrell and B. F. Farrell filed suit for the land against Ochse, alleging that he had fraudulently obtained the deed from B. F. Farrell and praying for its cancellation; also, thаt the title to the land had never passed from Thomas B. Farrell and that this was known to Ochse when he obtained the deed from B. F. Farrell. Later, on June 11, 1901, Thomas B. Farrell, by an amended petition in the suit, made B. F. Farrell a party defendant, repeating the allegations of fraud on the part of Ochse in the procurement of the deed from B. F. Farrell, declaring that the deed from himself to B. F. Fаrrell was never delivered, and praying that both deeds be cancelled. To this pleading B. F. Farrell made no answer. Ochse answered generally in the suit, and by an affirmative plea allegеd his title to the land. Although the pleadings of. the parties were several times amended, the cause of action asserted against Ochse remained unchanged.
On May 28, 1902, B. F. Farrell conveyed the land to J. M. Cobb. On the following day Cobb, by leave of the court, filed an intervention in the suit of the Farrells against Ochse, seeking the recovery of the land against all parties, setting up the cоnveyance to B. F. Farrell to himself. His petition likewise alleged that Ochse had fraudulently obtained the deed from B, F. Farrell, and sought its cancellation as a cloud upon his title.
Final judgment was rеndered in the suit on June 3, 1902. The judgment decree recited the due appearance of all the parties; that Ochse through his attorneys announced that he did not care to defend the cause further; and that T. B. Farrell and' B. F. Farrell by their attorney agreed that Cobb was entitled to the land. It cancelled the deed from B. F. Farrell to Ochse and decreed the land to Cobb. Before *30 filing his intervention Cobb had paid Ochse $700 for his. claim to the land and procured from him a quitclaim deed.
The defendants purchased from Cobb upon the faith of the judgment rendered in the causе of Farrell v. Ochse, which decreed him the land. They had no notice that Cobb had purchased Ochse’s claim and obtained from him a quitclaim deed. The abstract of title, examined by the attorneys for all the defendants except Mrs. Wilson, revealed the filing of the respective suits which have been referred to, the dates when, filed, and the judgments therein respectively rendered.
At the time the divorce decree was rendered in her suit against Ochse, Mrs. Gabb knew that the suit of the Farrells against Ochse, seeking the cancellation of the deed of B. F. Farrell to Ochse, hаd been brought and was then pending. Cobb knew of the Ochse divorce proceeding at the time he purchased the title of B. F. Farrell and intervened in the suit of Farrell v. Ochse.
In the bringing and proseсution of the suit against Ochse for the land, there was no intent to defraud Mrs. Gabb, nor was there any fraud perpetrated in the rendition of the judgment against him in Cobb’s favor.
The present suit was filed ¡Novembеr 9, 1907, more than six years after the plaintiff obtained her divorce from Ochse, and more than five years after the rendition of the judgment in the suit of Farrell v. Ochse.
Mrs. Gabb was not a necessary party to the suit of the Farrells against Ochse for the recovery of the land. The suit against Ochse alone subjected the land to the power of the court to determine whether the community estate of himself and wife had any title to it, and, if not, to decree the title to its rightful owner. - Jergens v. Schiele,
In Moore v. Moore,
With us, the marital relation in respect to community property is frequently likened to an ordinary partnership. Carter v. Conner,
If in such a partnership, dissolved by death pending the action, the surviving partner has the capacity to reрresent it to the extent that the-judgment so .rendered will bind the partnership property, upon principle it must be equally true that in an action affecting property of a. community partnеrship, dissolved pending the suit by the act of one-of the parties, a judgment rendered against the partner who had the-capacity to represent the estate in the first instance, will, in the absence, of any fraud upon the rights of the other partner, be conclusive as to-the' property involved.
After the rendition of the divorce decree the relation of Mrs. Gabbto the land then in controversy in the suit between the Farrells and her husband could not be superior to that of a
lis pendens
purchaser. She was accordingly concluded by the judgment therein rendered upon thе-cause of action pending against her husband at the time she obtained her divorce. As the purchaser pending the action of B. F. Farrell’s claim to the land, Cobb was entitled to intervene in the suit of the Farrells against Ochse. Fleming v. Seeligson,
The defendants purchased in reliance upon the title decreed Cobb m the suit against Ochse without notice of anything thаt would adversely affect the title as thus decreed, and should be protected in it Mrs. Gabb *32 abandoned all claim to the land, as was recited in the divorce decree. She knew of the рendency of the suit by the Farrells for the land. If she had desired to reassert a claim to the land, she should have done so in that suit following her. divorce. Instead, she stood by and permitted the judgment in Cobb’s favor to be rendered. She ought not to be permitted to speculate upon the issue of that controversy and then assert her claim in a different action. She was concluded by the judgment rendered in Cobb’s favor against her former husband. The Court of Civil Appeals 'correctly determined the case. Its judgment is affirmed.
Affirmed.