
    Woog v. Barnhart.
    Error to the District Court of Montgomery County.
    
      G. W. Dustin and Craighead & Craighead, for plaintiffs in error.
    
      John Schuster and Gunckel & Rowe, for defendants in error.
   By the Court.

On September 12, A. d. 1870, E. B., a married woman, brought suit in the superior court of Montgomery county against S. B., also a married woman, to quiet title to a parcel of land. Neither husband was a party, and E. B. did not sue by her next friend. S. B. answered, claiming title in fee to the land under a specified deed. This answer incidentally showed that both parties were married women, but it sought no advantage from the omission of a next friend, and did not disclose that the land in controversy was not claimed as her separate property by the defendant. A reply denied the validity of the deed set up in the answer. In May, A. D., 1871, the superior court. found the issues in favor of E. B., and made a decree establishing her title. No bill of exceptions was taken. E. B. died in 1877, and on January 8, A. D. 1881, S. B. and her husband filed a petition in error in the district court making the heirs of E. B. defendants. That court reversed the judgment below. The heirs here ask a reversal of the judgment of the district court.

Held: 1. As S. B. went to trial without objecting to the omission of a next friend, she could not afterwards complain of it.

2. Although the pleadings in the superior court did not show whether E. B. claimed the land as her separate property or not, evidence on that point was admissible at the trial,- and the presumption is that such evidence produced the finding and decree then made by showing that the action related to land claimed as her separate property.

Judgment of the district court reversed and that of the superior court affirmed.  