
    Wright v. Wright.
    Where the decree in a suit for divorce ordered that all of the property, both real and personal, &c., which was possessed or owned by the defendant at the time of the institution of the suit, should bo equally divided, <ftc., appointing commissioners of partition: Held, That “whatever may have been the causo of the omission, it is very clear that no provision is made by the decree for the division of the increase of the property subsequent to the commencement of the suit,” but that the decree was without prejudice. Quere whether the omission could have been cured by a supplemental petition alleging the mistake in the decree. &c.
    Where the petition for a divorce and partition of property undertook to enumerate the prop* erty,and the jury found that there wa^ no separate property, and the court decreed a partition of all the property, both real and personal, which wa»* owned or possessed by the defendant at tho time of the commencement of tho suit, appointing commissioners of partition: Held, That the duty of the commissioners was not confined to the property enumerated in the petition, but extended, in tho terms of tho decree, to all the property, both real and personal, owned or possessed by the defendant at the commencement of the suit.
    Where a party claims property‘consisting of various articles, which he attempts to enumerate, the judgment or decree would generally preclude further controversy m relation to matters which should have been properly or necessarily embraced in the pleadings and judgment in tho first litigation; but this rulo is subject to exceptions. It would not, for instance, debar the party from claiming property which had been fraudulently concealed by the other party, or prevented by his iratal from being brought forward for disposition by the decree; nor, in a ease like tho present, would a married woman, suing for separation of property, be concluded and restricted to the articles claimed specifically in her pleadings.
    The inventory taken in a suit for divorce and division of property is not conclusive against tlie wife. *
    Appeal from Victoria. At the. last term of this court a decree for divorce in this case and a division of property was affirmed. By that decree* all of fch* .property, botli real and personal, ehoses in possession and ehoses in action, and all property whatever which was possessed or owned by the said defendant at tile institution of this suit., be equally divided; and that, one equal half of said property be recovered of the defendant by the plaintiff'.” It was further decreed that commissioners should be appointed to divide said property into two equal parts, according to t.iie value thereof; and that they should assign and convey over to the said plaintiff one of said equal parts of said property, and make report of their acts and proceedings under the decree, &c.
    The instructions given in the commission lor partition pursued very exactly the terms of the decree,; and in the report of the commissioners, it was recited that they were appointed to divide into two equal portions the property in the possession of John D. Wright, and which was in his possession on the 2M September, 1849, being the date upon which the suit upon which said commission was founded was instituted, &e. By the report, after the division of a tract of land, it was stated that the number of cattle found on the premises, gathered by the drivers, was six hundred and twenty-six head, out of which number were surrendered fifty-six to the, Misses Wright, the same being claimed hv them as their properly, the remaining live hundred and seventy being equally divided between the said John D. and the said Margaret 'I'. Wright. There were also divided the farming and cooking utensils, thirty head of hogs; and a list of notes in the possession of John D. Wright, but not delivered up by him to the commissioners, was given. On the return of the report the defendant excepted to so much as divided five hundred and seventy head of cattle, and claimed that only three hundred and thirty head should have been divided, on the ground that this was the number claimed by the plaintiff Margaret in her original petition as constituting the stock of cattle in the possession of defendant at the commencement of the suit; which number was acknowledged by the defendant and confirmed by the report of the commissioners of inventory and appraisement, &e.
    The- plaintiff prayed, by way of supplemental petition, that the report of the commissioners lie confirmed so far as they had divided (he common property between plaintiff and defendant, hut that this confirmation be without prejudice to the plaintiff’s rights to any other property not mentioned as divided in said report; and the plaintiff averred that the commissioners failed to divide many articles, as well property mentioned as some that was not mentioned in the original petition. The petitioner proceeded to specify such property as had come to her knowledge which had not been divided, but which, by the decree of the court, was subject to division, viz, a labor of land, a claim against A. Dunlap’s estate for scrip nowin controversy, two negro slaves, a number of horses as set forth in plaintiff's original petition, sixty head of cattle, fifty-six of which weregiven tip by commissioners, two yoke of oxen, and many debts due the community, the evidences of which were in possession of defendant, and which “ are now unknown to your petitioner.” The petitioner then averred that the defendant, fraudulently intending to cheat the, plaintiff out of her share to the community property, had sold and delivered to different persons money, cattle which belonged to the petitioner in common with himself, as well as many other articles of value belonging to said community; and a list of such sales as had been discovered was set forth.
    The petitioner, after praying for confirmation of the report of the commissioners, prayed also that judgment, be given for one-half of such community properly “as was set forth in this her petition.”
    The defendant demurred, and further pleaded that the plainl iff was estopped by the record, proceedings, and decree in the cause between (he same parties from claiming any property — re-j, personal, or mixed — -not mentioned in the said record and proceedings, and lie further denied all the material allegations of the petition.
    The following instruction was copied into the transcript, and purported, by marginal note, to have been asked by the defendant and to have been given*; hut it was not signed by the judge:
    
      “ 1st. Property proved hy the evidence before the jury to have been in possession on the 22d September, 1849, and its increase, would be common property, subject to division under this decree.”
    The jury found that J. D. Wriglic liad sold property of the. community (o the amount of $774, one half of which was found for the plaintiff; that the iifty-six head of cattle turned out by commissioners belonged lo the community. They also found that eight horses, the labor, and scrip belonged to the community.
    By the decree the report of the commissioners was confirmed, the expenses of the partition divided, and it was adjudged that the fifty-six head of cattle, tlie eight head of horses, the labor of laud, the proceeds of the suit in relation to the'' scrip, should be equally divided .between the parties; and commissioners were appointed to divide said cattle and horses; and one half of the labor of land and of the proceeds of the suit was declared to be vested in each of the parties respectively; and it was adjudged that the plaint iff should recover of the defendant, the sum of three hundred and eighty-seven dollars, which was one half of the proceeds of said sales.
    A motion for a new trial was overruled, and the defendant appealed.
    
      J. N. Mitchell, for appellant.
    I. As several of the acts of the court below specially assigned as grounds of error, if not completely comprehended within a single legal proposition, yet come within its purview, for the sake of brevity they will rather be considered in that way than as separately set out in the assignment.
    II. As a party can ouly recover a judgment hi accordance with the allegations and the proofs, the allegations must be supported by legal testimony, and the judgment bn predicated upon and consistent with tlm allegations. ( Vide Text-books; Pleading and Proof, passim.) A petitioner must set out with reasonable certainty the kind, quality, and extent of his demand, not only to apprise the defendant clearly what defense or response it behooves him to make, and the nature of the testimony he will be called on to rebut, but also that the court and jury may fully understand the precise point iu controversy between the parties, in order that the court may know whether the testimony offered be pertinent or irrelevant to that point, and that the jury may know of a truth whether that point be made clear or not by the evidence adduced to them; but also that their verdict (“were dictum — truth spoken”) may ascertain the right claimed, the court declare the sanction of the law provided in that case, and the executive officer be confined to giving efficacy to that right thus sanctioned, i. «., by the reductio absurdum: one cannot, being deprived of a mouse, sue for an animal, recover judgment or decree for a horse, and receive under execution an elephant. (Wright v.. Wright, 3 Tex. R., 168, and cases cited; 6 Id., 3.)
    Test, then, this case by these elementary propositions, and by them estimate the value and extent of the original judgment., to which this suit is appended, and see if any executory process which shall consist with it can by any possibility inform the executive officer what particular tiling he is to do! what right lie is to enforce, what property to deliver to the successful petitioner. The judgment or decree is general; ascertains or pronounces nothing with reasonable certainty. Process following it cannot inform the executive officer of his duty — -the act required by the judgment at his hands. Is not the judgment, therefore, void? If not void, how can it be aided? If at all, by no other means than by a reference to the pleadings in the case.
    nr. The nuxfc proposition I would rely upon is, that in any jurisdiction the final judgment, of the court is conclusive upon the parties. And after the lapse of the term at which it was rendered it cannot be altered or amended by the court itself even. (Merle v. Andrews, 4 Tex. R., and the numerous authorities tin;re cited.)
    IV. From all which it would seem obviously clear that the exceptions to the commissioners’ report should have been sustained, and a decree 
      pro tanto in favor of the defendant below; also that tbe supplemental petition having been filed in the usual course of practice without any actiou of the court, and showing on its own face that it was a supplement to an original petition afler final judgment thereon, and aiming to bring the same matters again into controversy^ it was properly met by the demurrer, and ought to have been defeated by it.
    
      A. S. Cunningham, for appellee.
    I. It is contended by appellant that the plaintiff should only have recovered judgment for the property specifically claimed, and that she is precluded from recovering more by her allegations in her petition.
    We contend that under our law no mention need be made specifically of any property; that the court is bound by the statute to order a division of the community property. (Hart. Dig., art. 8-19.) She certainly is not precluded from recovering other property than that claimed, especially such property as cattle, horses, &o., as the number and value and description cannot be known by the wife, being under the exclusive control of the husband. The statute on divorce and alimony says, the court pronouncing the decree of divorce shall order a division of the estate of the parties in such way as to them shall seem just and right; and all property in the possession of the parties is presumed to be community property until the contrary appears. The objection, then, to this decree is without foundation.
    II. It is contended that the commissioners exceeded their authority, and that the court could not legally confirm their report. It is answered chat they could have made no other division. If none but the property in defendant’s possession in 1849, without the increase, could be divided, "they could not possibly divide anything. B.ut they did divide the property according to the legal import of the decree and according to the law.
    The decree is defective in not mentioning the increase of the stock, but it is understood. Partus sequitur ventrem is the maxim. If there be a clerical error in a decree, or something omitted which would have been inserted almost as a matter of course, if asked for, it may be rectified even after the decree is enrolled. (Freem. B., 254; 2 Wend. B.,221; 7 Paige; Danl. Chan. ITac.., 1236.)
    This decree has not been rendered final. If is merely incidental to the issue of divorce, and was under the control of the court until the final division of the property. Mew commissioners were appointed under it, and were to report. All parties were yet in court, aud at anytime the court might, ou motion, have altered the decree to make it more plain. Under our statute of divorce the power of tiie court is almost unlimited in the division of the property of the suitors. (Hart. Dig., art. 849.)
   Hemphill, Oil. J.

It would bo both tedious and unprofitable, to explore all the grounds assigned for error. The merits of the controversy lie in a narrow compass. The principal question in the case is as to the extent of the authority of the commissioners in the partition. They were, in couformily with the decree, authorized apd required by their commission to divide all of the property, real and personal, choses in possession and dioses in action, and all property whatever possessed or owned by the defendant at the institution of the suit on the 22d September, 1849. This was the extent of their authority, and they wore neither required nor could they be permitted to go further. Whatever may have been the cause of the omission, it is very clear 1 hat. no provision is made by the decree for the division of the increase of the property subsequent to the commencement of the suit. The decree is circumscribed, anil the authority of the commissioners restricted in its operation to the property in possession of the defendant at the, commencement of the action. The jury in the original cause found that there was no separate property; consequently all the property in possession of either party at the commencement of the suit, or subsequently acquired by natural increase, or by rents, profils, or by purchase, belonged to the community, and were, perhaps, subject to an equal division between the parties, under such modifications as might, under certain circumstances, having due regard to the rights of children, be made. But the decree provides only for the division of property in possession of defendant at the institution of suit; and so far as the commissioners attempted to divide other property, they transcended the limits of their authority, and their action cannot be sustained.

The next question is, whether the commissioners or the court were restricted bjr the decree to such property alone as was claimed by the plaintiff in her petition as community property, or as was embraced in the inventory and ap-praisement by the commissioners appointed for that purpose.

Unquestionably, where there is a dispute involving rights to property, and this is terminated by an order for distribution, and commissioners for partition appointed, they, as guides for their action, would generally refer to the pleadings to ascertain what property had been in controversy; and by the usual form of such decree they would he restricted to the division of such property as was specified in the pleadings, or some terms of equivalent import, conveying a definite idea of the exact property to be divided. But the terms of this decree are quite comprehensive, embracing all the property owned or claimed by the defendant at a period named, without limitation, to the effect that the property to be divided was mentioned or described in the pleadings.

Where a party claims property consisting of various articles, which he attempts to enumerate, in order that all of the constituents of his claim be presented for adjudication, the judgment or decree would generally preclude further controversy in relation to'matters which should have been properly oi necessarily embraced in the pleadings and judgment in the first litigation; hut tliis rule is subject, to exceptions. It would not, for instance, debar the party from claiming property which had been fraudulently concealed by the other party or prevented by his fraud from being brought forward for disposition by the decree; nor, in a ease like the present, would a married woman suing for separation of property be concluded and restricted to the articles claimed specifically in her pleadings. In such case there is no presumption that the wife lias full knowledge of the property to which she has a claim. The inference would be unreasonable.

The law invests the husband with the management of all the property in which the wife has an interest. The incapacity of the wife during matrimony is presumed. From this legal fiction she suffers many evils, and she is entitled to its immunities; at least in all cases -where they are not invoked to shield the perpetration of gross frauds on the rights of others. She could not rationally he supposed to be fully cognizant of the extent or description of the community property ; and she cannot be concluded, if the whole of such prop-property ho not described in her pleadings.

Nor is the inventory conclusive. Tbis'is made for the benefit of the wife; and the husband, for the information of the commissioners, should be required to make a full exhibit of the property. He may be concluded by tlie acts of the appraisers, but not so the wife. The concealment of property by the husband, or the refusal or neglect of commissioners to insert it in the inventory, cannot prejudicio the rights of the wife; for the law protects such as labor under incapacities and sueltas are' defrauded, and not those who commit fraud.

If (lie inventory were, regarded as conclusive, the husband should account for the negro woman and the twelve horses included therein ; but, by the verdict, he is relieved from charge as to the former, and the twelve horses are reduced to eight. The pleadings also describe property claimed by the wife in her separate right, but which was adjudged to the community; and this was not divided by the commissioners.

Upon the whole, we conclude that the wife was not estopped by her allegations from showing that other property belonged to the community. But the inquiries and action of tiie commissioners and court under the decree must be restricted to the property possessed or owned by the defendant at the commencement of the suit. If he owned or possessed more than three hundred and thirty-three head of cattle at that time, the wife is entitled to her share of tiie excess. Tiie inquiry, however, cannot extend to tiie number of cattle owned by him at tiie date of the decree for division. The terms of tiie judgment do not authorize such inquiry. Its mandate is restricted to such property as was possessed or owned at tiie date of the suit, and not of the decree. Nor do the allegations of the supplemental petition aver, with auy distinctness, that there was a mistake in tiie decree, or, whether there be a mistake or not, that the wife was entitled and claimed her share of (lie community property, as well Unit in possession at the commencement of tiie suit as that acquired subsequently, whether by natural increase, or otherwise. Whether such allegations, by way of supplement or by original petition, be sustainable in law, it is not material to decide; but, without such, the inquiry must be limited to the property owned or possessed on Hie 22d September, 1849; and within that range it will embrace all such property, whether included in the pleadings or otherwise. Under this view of tiie case it will be unnecessary to express any opinion on many points suggested by the assignments of error.

In the course of the proceedings the defendant admitted that if there existed such property as the labor and scrip, it was subject to division ; and there was evidence as to the number of horses in 1849. No question can arise in relation to the sales in tiie present state of the controversy, unless the defendant should refuse to produce tiie number of cattle owned or possessed by him in September, 1849.

The first instruction asked by the defendant is incompatible with his exception to tiie report and his pica to tiie supplemental petition. Títere must be some mistake in relation to the instruction. Tiie appellant, notwithstanding the instruction, still insisted in his argument that no more entile could have been divided than the number shown by the pleadings to have been in possession of tiie defendant at tiie commencement of tiie suit. And .tiie appel-lee does not contend that such ground, as to the increase of tiie cattle, was surrendered by tiie defendant, from his own instructions.

It is ordered, adjudged, and decreed that that portion of the decree confirming the report of the commissioners so far as they have divided tiie property and delivered tiie possession of one half of tiie same to Margaret T. Wright, or her agent, without prejudice to tiie claim of tiie said plaintiff to other community prope.rty.be affirmed iu all its parts, except as to the division of tiie cattle as reported by the commissioners; and in this particular their report, is not affirmed, and the District Court is required 't.o adopt' such proceedings as will cause a division of the number of cattle in possession of the defendant or owned by him at the commencement of the suit, and make such orders as may do justice between the parties in the premises, without prejudice to'any claim which tiie plaintiff may in law have to a division of tiie increase of such cattle, or of any other cattle acquired by either of tiie parties since tiie commencement of the suit and before the final affirmtiou of the decree of divorce and division of property.

And it is further ordered, adjudged, and decreed that such portions of the decree as directed the costs and expenses of tiie division of the property to be apportioned between the parties, and that adjudged a division of the labor of land aud the proceeds of the law suit against Wilkins Hunt, administrator of Alexander Dunlap, and eight horses, to be equally divided, be and tiie same are hereby affirmed ; and that all other portions of (lie decree be and the same are hereby reversed. And it is further ordered, adjudged, and decreed that the plaintiff do have and recover her costs from the defendant in tiie District Court expended, and that tiie costs of this court be equally divided between the parties.

Ordered accordingly.  