Gould, Associate Justice.
The answers of the defendants, Singleton and Holder, set up that they were innocent purchasers in good faith, of part of the land sued for, from their co-defendant, A. J. Hutchins, and that they had, in good faith, made valuable improvements, for the value of which they claim judgment, in the event the plaintiff recovered judgment for the land. There was evidence in support of this plea sufficient to entitle them to have it passed upon by the jury. In the charge of the court, no allusion was made to the subject of improvements, in good faith. The jury, however, returned the following verdict: “We, the jury, find for plaintiffs, the south half of the Jesse Denson league, Ho 8, Spring creek, Harris and Crimes county, Texas, and give ho damages for timber, &c., the present occupants to hold their improve[412]*412ments.” On this verdict, the court rendered judgment for the half league of land sued for, which judgment concludes as follows: “ And whereas there was no reference to the improvements, in the charge of the court, it is ordered that the portion of the verdict referring to improvements be regarded as surplusage.”
The indefiniteness and uncertainty of the verdict was made one of the grounds of a motion for new trial, and one of the errors assigned is, that the judgment of the court does not conform to, nor is it supported by, the verdict of the jury.
The verdict was certainly not an unconditional finding for the plaintiff. If, in finding that defendants should hold their improvements, it was not intended that they should hold also the land improved, still the holding of these improvements is a condition qualifying the verdict for plaintiff'. It was the evident intention of the jury that the defendants should not lose their improvements .without compensation; and whilst their verdict was not such that the court could render thereon a judgment carrying out that intention, it was an attempt to respond to an issue made by the pleadings, and not unsupported by evidence, and cannot be treated as mere surplus-age. “Where the jury find the issue, and something more, the latter part will be rejected as surplusage.” (Patterson v. United States, 2 Wheat., 225.) If the pleadings had presented no issue of improvements in good faith, or if the evidence had justified the court in withdrawing that issue from the jury, the finding on that subject might have been rejected. The plea setting up that defense or claim was certainly sufficient, in the absence of exceptions, and the evidence showed that Holder & Singleton held under deeds from A.J. Hutch-ins, whose claim of title reached back to the sole heir of the original grantee; that they paid Hutchins for the land, and that they had, each of them, made improvements on the land, to the value of not less than $300 each. Counsel for appellees say that the evidence clearly established that defendants acquired their title, and took possession of the land, with [413]*413knowledge of the title held by plaintiff. However this may be as to the other defendants, the record does not show such knowledge in Holder & Singleton; and even if it did, that fact would not be conclusive that they had not acted in good faith. (Dorn v. Dunham, 24 Tex., 380; Sartain v. Hamilton, 12 Tex., 222.)
It is true, that when the court failed to submit the issue to the jury, that the defendants should have asked appropriate charges, the refusal of which would have been error. As they neglected to do this, if the jury had simply found for plaintiffs, the defendants would, perhaps, have had no right to complain. But inasmuch as the jury, though uninstructed on the subject, have nevertheless attempted to pass upon the issue, and to find on it for the defendants, the court was not authorized to disregard that part of their verdict, however informal. As returned, the verdict should not have been received; having been received, it was only a conditional finding for plaintiff', and did not authorize the absolute judgment rendered in her favor, and for this error the judgment must be reversed.
There are other questions presented by the assignment of errors, and discussed by counsel on both sides, on which it is proper that we should give our conclusions.
The plaintiff, at the time suit was commenced, was the surviving wife of A. B. Bacon, deceased, and alleged in her petition “that she is the owner, and entitled to the possession of” the land sued for, and that “ she holds said land by a regular chain of title,” and attached to her petition a notice of the filing of certain deeds. Amongst these was a deed from Thomas 8. Bacon to herself, made whilst her husband was still living, which deed was read in evidence on the trial. The defendr ants asked a charge, in substance, that the presumption was that the land was community property, and that plaintiff “ could not maintain a suit for it in her own name as her • separate property.” In support of the proposition, that the refusal of this charge was error, we are referred to the cases [414]*414of Hatchett v. Connor, 30 Tex., 111; Holloway v. Holloway, 30 Tex., 164; Owen v. Tankersley, 12 Tex., 413; Moffatt v. Sydnor, 13 Tex., 628.)
The cases referred to will be found to be suits brought in the name of both husband and wife, or in the name of the husband alone, for the recovery of what is alleged to be the separate property of the wife, and to hold, that in suits thus brought a recovery cannot be had on evidence which shows it to belong to the community, or to be the separate property of the husband. In this case the plaintiff sued as a feme sole; and just as any other owner of land, or of an undivided interest in land, she alleges her ownership in general terms. As she was a feme sole, no averment that the land was her separate estate was necessary, and none such was made. If, in fact, she only owned an undivided interest in the land, she might have alleged such to be her title, and have maintained her suit against a wrongdoer. (Croft v. Rains, 10 Tex., 523; Watrous v. McGrew, 16 Tex., 510; Grassmeyer v. Beeson, 18 Tex., 766; and Presley v. Holmes, 33 Tex., 478.) But having sued under a general allegation of title in herself, it is not a variance if the evidence shows that she owns less than the whole, or only an undivided interest. (Dewey v. Brown, 2 Pick., 387; Somes v. Skinner, 3 Pick., 62; McFadden v. Haley, 1 Bay, 457; Watson v. Hill, 1 McCord., 161; 2 Washburne on Real Prop., 2d ed., page [422,] 438.)
Another assignment of error is, to the admission in evidence of a deed (by public act) from Jesse Denson, the grantee, to Elisha Roberts, the objection, taken by bill of exceptions, which also describes the instrument offered as a deed, being, that it was not properly authenticated by any notarial act which entitled it to record. Looking at the statement of facts, it appears that the instrument read in evidence was a copy of what purported to be a deed by public act, executed in 1834, before the alcalde of the municipality of San Augustine, with two assisting and two instrumental witnesses; and that immediately following the signatures, as [415]*415they would appear in the original or protocol of such an instrument, is the certificate of the clerk of the District Court of San Augustine county, made in 1871, that the “foregoing deed * * is a true and correct copy of the original deed now on record in my office, in book B, p.
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Gould, Associate Justice.
The answers of the defendants, Singleton and Holder, set up that they were innocent purchasers in good faith, of part of the land sued for, from their co-defendant, A. J. Hutchins, and that they had, in good faith, made valuable improvements, for the value of which they claim judgment, in the event the plaintiff recovered judgment for the land. There was evidence in support of this plea sufficient to entitle them to have it passed upon by the jury. In the charge of the court, no allusion was made to the subject of improvements, in good faith. The jury, however, returned the following verdict: “We, the jury, find for plaintiffs, the south half of the Jesse Denson league, Ho 8, Spring creek, Harris and Crimes county, Texas, and give ho damages for timber, &c., the present occupants to hold their improve[412]*412ments.” On this verdict, the court rendered judgment for the half league of land sued for, which judgment concludes as follows: “ And whereas there was no reference to the improvements, in the charge of the court, it is ordered that the portion of the verdict referring to improvements be regarded as surplusage.”
The indefiniteness and uncertainty of the verdict was made one of the grounds of a motion for new trial, and one of the errors assigned is, that the judgment of the court does not conform to, nor is it supported by, the verdict of the jury.
The verdict was certainly not an unconditional finding for the plaintiff. If, in finding that defendants should hold their improvements, it was not intended that they should hold also the land improved, still the holding of these improvements is a condition qualifying the verdict for plaintiff'. It was the evident intention of the jury that the defendants should not lose their improvements .without compensation; and whilst their verdict was not such that the court could render thereon a judgment carrying out that intention, it was an attempt to respond to an issue made by the pleadings, and not unsupported by evidence, and cannot be treated as mere surplus-age. “Where the jury find the issue, and something more, the latter part will be rejected as surplusage.” (Patterson v. United States, 2 Wheat., 225.) If the pleadings had presented no issue of improvements in good faith, or if the evidence had justified the court in withdrawing that issue from the jury, the finding on that subject might have been rejected. The plea setting up that defense or claim was certainly sufficient, in the absence of exceptions, and the evidence showed that Holder & Singleton held under deeds from A.J. Hutch-ins, whose claim of title reached back to the sole heir of the original grantee; that they paid Hutchins for the land, and that they had, each of them, made improvements on the land, to the value of not less than $300 each. Counsel for appellees say that the evidence clearly established that defendants acquired their title, and took possession of the land, with [413]*413knowledge of the title held by plaintiff. However this may be as to the other defendants, the record does not show such knowledge in Holder & Singleton; and even if it did, that fact would not be conclusive that they had not acted in good faith. (Dorn v. Dunham, 24 Tex., 380; Sartain v. Hamilton, 12 Tex., 222.)
It is true, that when the court failed to submit the issue to the jury, that the defendants should have asked appropriate charges, the refusal of which would have been error. As they neglected to do this, if the jury had simply found for plaintiffs, the defendants would, perhaps, have had no right to complain. But inasmuch as the jury, though uninstructed on the subject, have nevertheless attempted to pass upon the issue, and to find on it for the defendants, the court was not authorized to disregard that part of their verdict, however informal. As returned, the verdict should not have been received; having been received, it was only a conditional finding for plaintiff', and did not authorize the absolute judgment rendered in her favor, and for this error the judgment must be reversed.
There are other questions presented by the assignment of errors, and discussed by counsel on both sides, on which it is proper that we should give our conclusions.
The plaintiff, at the time suit was commenced, was the surviving wife of A. B. Bacon, deceased, and alleged in her petition “that she is the owner, and entitled to the possession of” the land sued for, and that “ she holds said land by a regular chain of title,” and attached to her petition a notice of the filing of certain deeds. Amongst these was a deed from Thomas 8. Bacon to herself, made whilst her husband was still living, which deed was read in evidence on the trial. The defendr ants asked a charge, in substance, that the presumption was that the land was community property, and that plaintiff “ could not maintain a suit for it in her own name as her • separate property.” In support of the proposition, that the refusal of this charge was error, we are referred to the cases [414]*414of Hatchett v. Connor, 30 Tex., 111; Holloway v. Holloway, 30 Tex., 164; Owen v. Tankersley, 12 Tex., 413; Moffatt v. Sydnor, 13 Tex., 628.)
The cases referred to will be found to be suits brought in the name of both husband and wife, or in the name of the husband alone, for the recovery of what is alleged to be the separate property of the wife, and to hold, that in suits thus brought a recovery cannot be had on evidence which shows it to belong to the community, or to be the separate property of the husband. In this case the plaintiff sued as a feme sole; and just as any other owner of land, or of an undivided interest in land, she alleges her ownership in general terms. As she was a feme sole, no averment that the land was her separate estate was necessary, and none such was made. If, in fact, she only owned an undivided interest in the land, she might have alleged such to be her title, and have maintained her suit against a wrongdoer. (Croft v. Rains, 10 Tex., 523; Watrous v. McGrew, 16 Tex., 510; Grassmeyer v. Beeson, 18 Tex., 766; and Presley v. Holmes, 33 Tex., 478.) But having sued under a general allegation of title in herself, it is not a variance if the evidence shows that she owns less than the whole, or only an undivided interest. (Dewey v. Brown, 2 Pick., 387; Somes v. Skinner, 3 Pick., 62; McFadden v. Haley, 1 Bay, 457; Watson v. Hill, 1 McCord., 161; 2 Washburne on Real Prop., 2d ed., page [422,] 438.)
Another assignment of error is, to the admission in evidence of a deed (by public act) from Jesse Denson, the grantee, to Elisha Roberts, the objection, taken by bill of exceptions, which also describes the instrument offered as a deed, being, that it was not properly authenticated by any notarial act which entitled it to record. Looking at the statement of facts, it appears that the instrument read in evidence was a copy of what purported to be a deed by public act, executed in 1834, before the alcalde of the municipality of San Augustine, with two assisting and two instrumental witnesses; and that immediately following the signatures, as [415]*415they would appear in the original or protocol of such an instrument, is the certificate of the clerk of the District Court of San Augustine county, made in 1871, that the “foregoing deed * * is a true and correct copy of the original deed now on record in my office, in book B, p. 68, records of deeds, mortgages, &c.” The question discussed by counsel is, whether a testimonio can be admitted to record without proof of its execution—a question settled in the negative by numerous decisions of this court. (Word v. McKinney, 25 Tex., 258; Lambert v. Weir, 27 Tex., 364; Hatchett v. Conner, 30 Tex., 108; Wood v. Welder, 42 Tex., 408.)
But we see nothing in the record to make this discussion appropriate; for it nowhere appears that a testimonio was recorded. Indeed, there is so much of uncertainty as to what was the real nature of the instrument offered in evidence, that we feel justified in dismissing the subject, with one or two suggestions. First, if the instrument offered was a mere copy of the record of a testimonio or protocol, inasmuch as the land did not lie in San Augustine county, the registration there was unauthorized, however the instrument may have been authenticated. Second, it seems to us not improbable that the instrument copied by the clerk of San Augustine county is the original or protocol, which should be in Ms office, and which may, with other similar instruments, constitute book B of the county records. If so, and if such is the meaning of the certificate, the copy was admissible in evidence, and admissible to record in the county where the land lies. (Paschal’s Dig., arts. 3717 and 4984.)
The only other assignment of error discussed by appellant is, as to the admission of the depositions of Felix Roberts, testifying, amongst other things, to the contents of an order and of letters from Jesse Denson to Elisha Roberts, it being objected that no proper predicate was laid for the admission of secondary evidence. In regard to the letter, Roberts, the executor of her father’s estate, and at one time custodian of the letters, proved them existence and genuineness, and their loss; [416]*416and in connection with the affidavit of plaintiff’s attorney, it would seem that a sufficient predicate was laid. In regard to the order, it seems that the contents of the letters were to the same effect, and that it was immaterial whether there was a separate order or not.
Other errors assigned were not discussed, and may he regarded as abandoned.
The judgment is reversed and the cause remanded.
Reversed and remanded.