YOUNG, Justice.
This suit involves issues of divorce and property, of which an earlier receivership appeal (147 S.W.2d 968) was ancillary. Eugene S. Hursey, defendant in the trial cortrt, is plaintiff here, though Mrs. Hursey, appellee, presents cross-assignments in reply brief for consideration in due order.
The parties were married in August, 1939, separating a few months thereafter, and the present litigation ensued. Allegations of cruelty as grounds for divorce were made by plaintiff, also by defendant in his cross-action; an additional contention of Mrs. Hursey being that in consideration of marriage, defendant had, by prenuptial agreement, deeded to her certain items of his property, of which deed he had regained custody before recordation; then denying the existence of said instrument and transaction of gift. Plaintiff also claimed a one-half interest in revenues accruing from defendant’s separate property (consisting of several apartment houses) ; attorney’s fees in the sum of $2,-000; and custody and support of her minor son Sherman, aged nine, who had previously been adopted by the defendant as his own son.
Defendant made specific denial of all property claims asserted by plaintiff, alleging that every item of realty in litigation was his separate estate; that no rents or revenues had accrued therefrom, considering prior liens; praying for affirmative relief (divorce) as the substance of his aforesaid cross-action.
[764]*764Upon first trial, the jury verdict was set aside and another hearing ordered; the court, at this juncture, appointing a receiver over all the affected property, to collect rentals, control and manage same during pendency of this, the main suit; which interlocutory order we have held a proper one, in view of the district court’s broad discretion in matters of divorce. Vernon’s Ann.Civ.St. Art. 4636; 147 S. W.2d 968.
The second trial, on which this appeal is predicated, resulted in jury findings, viz: (Issue 1) That defendant, E. S. Hur-sey, had been guilty of excesses, cruel treatment and outrages toward plaintiff, Helen Hursey, of such nature as to render their further living together insupportable; (Issue 2) that defendant did not execute to plaintiff the deed described in her amended petition prior to their marriage; (Issue 3) that the net earnings from the Hursey property, between August 12, 1939, and date of trial were $4,000; (Issue 4) that plaintiff, Helen Hursey, had not been guilty of the excesses, cruelty and outrages as alleged by defendant in his cross-action. The court, by agreement of the parties, and upon hearing of evidence, fixed appellee’s attorney’s fees at $2,500; and this amount was assessed against defendant in the judgment as “court costs.” See Jacks v. Teague, Tex. Civ.App., 136 S.W.2d 896. Also, in the court’s final judgment, plaintiff recovered the sum of $2,000 (one-half of the $4,000 jury finding on community revenues). She was further awarded custody of the minor child, Sherman Hursey, together with an allowance of $25 per month for his support until sixteen years of age. Divorce was granted plaintiff under the jury findings; but similar relief prayed for in defendant’s cross-action was denied. The court, in such final rendition, disregarded Issue 2 and the jury answer of no deed; and in conclusions of fact and of law, stated as grounds therefor, that it was without jurisdiction to try the issue, because “same involved the issue of title to the lands and was not a question of establishing and dividing separate and community property and that the matter of title could not be litigated or adjudicated in this suit.” (Tr. 132) Pursuant to such ruling and failure to give force to Issue 2, Mrs. Hur-sey was granted a severance of her claims relative to an alleged deed, and has filed a separate suit against defendant in the district court to establish same, which is now-pending.
Both parties filed motions for new trial, from the judgment as above generally outlined; and so far as their complaints are brought forward in briefs,, they may be here summarized. Contentions of appellant Hursey are: (a) The court’s error in excluding and not giving effect to jury Issue 2, and the finding that no deed was ever made to Mrs. Hursey; (b) no evidence to support plaintiff’s recovery of $2,000 as one-half community revenues; (c) no pleading upon: which to predicate attorney’s fees of $2,-500, or authority to tax same as costs; (d) error in awarding support for minor child,, and in taxing all costs against defendant, including attorney’s fees, in view of the-undisposed of deed issue. Appellee waives consideration of her cross-assignments, in event the judgment under review is affirmed; otherwise, various charges of jury misconduct are presented, with special reference to illegal testimony heard by them,, bearing principally upon Issue 2. A stenographic report of the evidence taken on the hearing of her motion for new trial is a part of this record, properly certified by the official reporter and trial judge. In this connection, no action appears to have-been taken on plaintiff’s said motion for new trial, n.or exception by her, and notice of appeal; the statutory exception and notice (followed by appeal bond) being by defendant only. Objections are accordingly made to such cross-assignments. Relating as they do to matters directly presented by defendant’s appeal (Issue 2), we conclude that appellee’s cross-points are timely. “ * * * cross-assignments by an appellee who has not himself taken an appeal will be considered only in so far as they affect the interest of the appellant,, or bear upon matters presented in the appeal.” 3 T.J., Appeal and Error-Civil Cases, Sec. 609, p. 873; see, also, Woeltz v. Woeltz, 93 Tex. 548, 57 S.W. 35; Harwell v. Morris, Tex.Civ.App., 143 S.W.2d 809.
Appellant’s record does not include-a statement of facts. We are, therefore, unable to pass upon any of his assignments that require a consideration of the evidence; our investigation being limited to such errors as are apparent upon the face of the record, i. e., the pleadings, verdict and judgment. Art. 1837; Clement v. [765]*765First Nat. Bank of Paris, 115 Tex. 342, 282 S.W. 558.
Appellant contends that submission of Issue 3, establishing the amount of net earnings from defendant's property between date of marriage and time of trial, was fundamental error, because the period included the aforesaid receivership administration ; and no recovery should be allowed against him during the time the property was not in his control, i. e., when in custodia legis. We overrule the point. The issue simply involved an amount of net earnings between specified dates, irrespective of control or receivership ; and in absence of a statement of facts, we must assume that the receiver’s records were fully in evidence. Moreover, the court made independent findings of fact consistent with said jury verdict; and considering the broad discretion accorded the trial court in both matters of divorce and division of community property, his ruling will not be reviewed on appeal unless an abuse thereof is shown. In other words, the record must establish some division of property that is manifestly unjust and unfair. Arts. 4632, 4638, R.S.; Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21; Scannell v. Scannell, Tex.Civ.App., 117 S.W.2d 538; Hamm v. Hamm, Tex.
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YOUNG, Justice.
This suit involves issues of divorce and property, of which an earlier receivership appeal (147 S.W.2d 968) was ancillary. Eugene S. Hursey, defendant in the trial cortrt, is plaintiff here, though Mrs. Hursey, appellee, presents cross-assignments in reply brief for consideration in due order.
The parties were married in August, 1939, separating a few months thereafter, and the present litigation ensued. Allegations of cruelty as grounds for divorce were made by plaintiff, also by defendant in his cross-action; an additional contention of Mrs. Hursey being that in consideration of marriage, defendant had, by prenuptial agreement, deeded to her certain items of his property, of which deed he had regained custody before recordation; then denying the existence of said instrument and transaction of gift. Plaintiff also claimed a one-half interest in revenues accruing from defendant’s separate property (consisting of several apartment houses) ; attorney’s fees in the sum of $2,-000; and custody and support of her minor son Sherman, aged nine, who had previously been adopted by the defendant as his own son.
Defendant made specific denial of all property claims asserted by plaintiff, alleging that every item of realty in litigation was his separate estate; that no rents or revenues had accrued therefrom, considering prior liens; praying for affirmative relief (divorce) as the substance of his aforesaid cross-action.
[764]*764Upon first trial, the jury verdict was set aside and another hearing ordered; the court, at this juncture, appointing a receiver over all the affected property, to collect rentals, control and manage same during pendency of this, the main suit; which interlocutory order we have held a proper one, in view of the district court’s broad discretion in matters of divorce. Vernon’s Ann.Civ.St. Art. 4636; 147 S. W.2d 968.
The second trial, on which this appeal is predicated, resulted in jury findings, viz: (Issue 1) That defendant, E. S. Hur-sey, had been guilty of excesses, cruel treatment and outrages toward plaintiff, Helen Hursey, of such nature as to render their further living together insupportable; (Issue 2) that defendant did not execute to plaintiff the deed described in her amended petition prior to their marriage; (Issue 3) that the net earnings from the Hursey property, between August 12, 1939, and date of trial were $4,000; (Issue 4) that plaintiff, Helen Hursey, had not been guilty of the excesses, cruelty and outrages as alleged by defendant in his cross-action. The court, by agreement of the parties, and upon hearing of evidence, fixed appellee’s attorney’s fees at $2,500; and this amount was assessed against defendant in the judgment as “court costs.” See Jacks v. Teague, Tex. Civ.App., 136 S.W.2d 896. Also, in the court’s final judgment, plaintiff recovered the sum of $2,000 (one-half of the $4,000 jury finding on community revenues). She was further awarded custody of the minor child, Sherman Hursey, together with an allowance of $25 per month for his support until sixteen years of age. Divorce was granted plaintiff under the jury findings; but similar relief prayed for in defendant’s cross-action was denied. The court, in such final rendition, disregarded Issue 2 and the jury answer of no deed; and in conclusions of fact and of law, stated as grounds therefor, that it was without jurisdiction to try the issue, because “same involved the issue of title to the lands and was not a question of establishing and dividing separate and community property and that the matter of title could not be litigated or adjudicated in this suit.” (Tr. 132) Pursuant to such ruling and failure to give force to Issue 2, Mrs. Hur-sey was granted a severance of her claims relative to an alleged deed, and has filed a separate suit against defendant in the district court to establish same, which is now-pending.
Both parties filed motions for new trial, from the judgment as above generally outlined; and so far as their complaints are brought forward in briefs,, they may be here summarized. Contentions of appellant Hursey are: (a) The court’s error in excluding and not giving effect to jury Issue 2, and the finding that no deed was ever made to Mrs. Hursey; (b) no evidence to support plaintiff’s recovery of $2,000 as one-half community revenues; (c) no pleading upon: which to predicate attorney’s fees of $2,-500, or authority to tax same as costs; (d) error in awarding support for minor child,, and in taxing all costs against defendant, including attorney’s fees, in view of the-undisposed of deed issue. Appellee waives consideration of her cross-assignments, in event the judgment under review is affirmed; otherwise, various charges of jury misconduct are presented, with special reference to illegal testimony heard by them,, bearing principally upon Issue 2. A stenographic report of the evidence taken on the hearing of her motion for new trial is a part of this record, properly certified by the official reporter and trial judge. In this connection, no action appears to have-been taken on plaintiff’s said motion for new trial, n.or exception by her, and notice of appeal; the statutory exception and notice (followed by appeal bond) being by defendant only. Objections are accordingly made to such cross-assignments. Relating as they do to matters directly presented by defendant’s appeal (Issue 2), we conclude that appellee’s cross-points are timely. “ * * * cross-assignments by an appellee who has not himself taken an appeal will be considered only in so far as they affect the interest of the appellant,, or bear upon matters presented in the appeal.” 3 T.J., Appeal and Error-Civil Cases, Sec. 609, p. 873; see, also, Woeltz v. Woeltz, 93 Tex. 548, 57 S.W. 35; Harwell v. Morris, Tex.Civ.App., 143 S.W.2d 809.
Appellant’s record does not include-a statement of facts. We are, therefore, unable to pass upon any of his assignments that require a consideration of the evidence; our investigation being limited to such errors as are apparent upon the face of the record, i. e., the pleadings, verdict and judgment. Art. 1837; Clement v. [765]*765First Nat. Bank of Paris, 115 Tex. 342, 282 S.W. 558.
Appellant contends that submission of Issue 3, establishing the amount of net earnings from defendant's property between date of marriage and time of trial, was fundamental error, because the period included the aforesaid receivership administration ; and no recovery should be allowed against him during the time the property was not in his control, i. e., when in custodia legis. We overrule the point. The issue simply involved an amount of net earnings between specified dates, irrespective of control or receivership ; and in absence of a statement of facts, we must assume that the receiver’s records were fully in evidence. Moreover, the court made independent findings of fact consistent with said jury verdict; and considering the broad discretion accorded the trial court in both matters of divorce and division of community property, his ruling will not be reviewed on appeal unless an abuse thereof is shown. In other words, the record must establish some division of property that is manifestly unjust and unfair. Arts. 4632, 4638, R.S.; Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21; Scannell v. Scannell, Tex.Civ.App., 117 S.W.2d 538; Hamm v. Hamm, Tex. Civ.App., 159 S.W.2d 183. The principle just stated is also a sufficient answer to appellant’s complaint that the trial court was not authorized to fix an equitable lien against the property of defendant to secure her recovery of $2,000 (Issue 3). The effect of the recital was merely to make the amount a charge against Hursey’s separate estate, until paid. Nor does the failure to describe defendant’s property in connection therewith serve to render aforesaid “equitable lien” void; identification of specific property beinp; a matter of proof in whatever equitable proceedings plaintiff may hereafter institute for enforcement of this community claim.
However, it is obvious from the transcript that the $2,500 judgment for attorney’s fees is excessive to the extent of $500. Plaintiff’s own pleading fixes $2,000 as the maximum fee prayed for; and any recovery in excess of that sum, though supported by evidence, cannot be sustained; Art. 2211, Vernon’s Civ.St.; Hartford Accident & Indemnity Co. v. Moore, Tex.Civ.App., 102 S.W.2d 441.
No appeal has been taken by either party to the court’s entry of divorce, and the decree in this respect is final.
The trial court disregarded jury finding No. 2, thus relegating plaintiff’s claim of deed to another trial, on the ground that inclusion of such issue was violative of Art. 4638, R.S., prohibiting divesture of title to real estate in a divorce action. In his reasoning, the trial court was incorrect, for when the divorce court’s jurisdiction is invoked to determine property rights between husband and wife (as was done here by Mrs. Hursey), they became a part of the “very divorce action itself.” Scott v. Scott, 133 Tex. 1, 123 S.W.2d 306, 313. The inquiry in question was as to a deed purportedly executed and delivered by defendant in July, 1939. If such instrument existed, the realty described therein belonged to appellant; otherwise, same remained separately owned by the husband; and the statute was nowise infringed by a jury finding either way. The court’s mistaken reasoning was doubtless due to the insistence of appellant, for, by special exceptions and objections to the court’s charge, defendant had consistently urged lack of jurisdiction to try the issue of deed. If so, appellant cannot now argue that the particular finding should have been given effect, for the error — though fundamental — was invited. Angelina County Lumber Co. v. Mast, Tex.Civ.App., 208 S.W. 360; Overton v. Ragland, Tex.Civ. App., 54 S.W.2d 240.
However, if the judgment under review be correct for reasons other than given by the trial court, it should be affirmed. Wheeler v. Haralson, 128 Tex. 429, 99 S.W.2d 885; 3 Tex.Jur., Appeal and Error, Sec. 792, p. 1129. Notwithstanding the fact that Issue 2 was properly an element of the instant suit, it was not indispensable to the divorce entry; if omitted, becoming an issue for later determination. Likewise, if in this case, the jury be guilty of misconduct in disposing of Issue 2, a retrial should be ordered in all matters involved in the particular claim. Turning to the stenographic record of proceedings on plaintiff’s motion for new trial, three jurors testified that Issue 2, involving deed, was long debated, their deliberations extending into the second day; that during the session, a juror procured from an outside source a pur[766]*766ported definition of deed, an element of said spurious definition being; that the instrument must be recorded; Mr. Trotter, one of the panel, stating that such information materially affected his vote on the question. The two jurors whose testimony was presented by defendant in rebuttal were not questioned on the incident; and the fact that same occurred and was considered by some of the -jurymen, at least, in disposing of the issue, appears uncontroverted. That such a transaction invalidates the finding to which it relates is obvious. Illegal testimony was thereby received, resulting in proven misconduct. Art. 2234 R.S.; City of Amarillo v. Huddleston, 137 Tex. 226, 152 S.W. 2d 1088, Syl. 5. Thus the court’s action in remanding the issue of prenuptial deed for another trial was proper under the whole record; and it follows that a correct judgment should be affirmed, despite the recital of an erroneous predicate therefor. 3 Tex.Jur., Appeal and Error, supra.
The parties having heretofore been remitted to a new trial on all matters affected by the jury misconduct just discussed, the judgment appealed from is affirmed, except that, the item of attorney’s fees will 'be reduced to the amount of $2,000, as fixed in appellee’s pleading. Said fee of $2,000 should not be taxed or collected as "court costs”; but shall constitute a recovery by plaintiff, Mrs. Hur-sey, against defendant, as an expense necessarily incident to divorce litigation. Jacks v. Teague, supra; Robbins v. Robbins, Tex.Civ.App., 125 S.W.2d 666.
In view of the confused state of the record regarding the issue of deed, it is ordered that the trial court decree of July 1, 1941, granting a severance of same from the remainder of this suit, be set aside and the plea of intervention filed pursuant thereto be dismissed; that said issue be again tried upon appropriate pleading as a severable but undisposed of part of plaintiff’s original cause of action. (Texas Rules of Civil Procedure. Rule Ño. 434, old 62a); and that the award of attorney’s fees herein be considered as in full of all legal services due appellee and incident to her suit for divorce and property.
The judgment herein is reformed as above indicated, and as reformed is affirmed; costs'of appeal taxed equally between the parties.
Reformed and affirmed.