Bott v. Wright

• Decision Date: 12 November 1910
• Citation: 132 S.W. 960
• Parties: BOTT v. WRIGHT et al.
• Court: Texas Court of Appeals

132 S.W. 960

BOTT v. WRIGHT et al.

Court of Civil Appeals of Texas.

November 12, 1910.

Appeal from District Court, Wheeler County; H. G. Hendricks, Special Judge.

Action by R. L. Bott against Ida Wright and another. From a judgment in favor of defendants, plaintiff appeals. Reversed and remanded.

Hoover & Taylor, Lawrence & Sterling, Theodore Mack, and Counts & Counts, for appellant. G. W. Mendell, J. B. Reynolds, and B. M. Baker, for appellees.

CONNER, C. J.

Appellant instituted this suit for the specific performance of a contract to convey a section of 640 acres of land described in the petition and alleged to be situated in Wheeler county. The contract is as follows: "Contract made and entered into this 17th day of October, 1907, by and between I. M. Wright, of Kent, Texas, and R. L. Bott, of Humeston, Iowa, witnesseth that the said I. M. Wright has this day sold to R. L. Bott of the following land legal numbers as follows: Section (4) block L, land lying just west of Clay section, for the sum of $5,000, of the following terms: Five hundred dollars cash paid in hand which is hereby receipted for, and forty-five hundred dollars on or before thirty days from this date. I. M. Wright is to deed by warranty deed and furnish abstract showing clear and perfect title, and to send deed and abstract to the Humeston State Bank, Humeston, Iowa. The warranty deed is to be free and clear of all incumbrance except six hundred and twenty-four dollars back to the state. [Signed] Ida Wright, by I. M. Wright, Agent. R. L. Bott." After the execution of the contract Ida Wright and I. M. Wright made deed in due form as agreed, and forwarded the same, together with an abstract of title, to the Humeston State Bank, but appellant not having paid the deferred $4,500, appellees, on or about December 7, 1907, telegraphed the bank to return the papers, which the bank did within a few days, and appellees thereafter sold the land to W. A. Layburn, who is sued herein as an alleged purchaser with full notice of appellant's alleged rights.

The court below gave a peremptory instruction in appellees' favor on the grounds that Ida Wright was not bound because of her coverture, and that her husband, I. M. Wright, was not bound because the contract showed that he signed as agent only. On a former day, we affirmed the judgment, save that we held I. M. Wright bound for the repayment of the $500 actually received. We so held on the theory that the undisputed facts showed that the land was the separate property of the wife, and that she had recalled the deed before its actual delivery to appellant, and hence was not bound, although the husband was, and that as to him the recall of the deed amounted to a voluntary rescission, which was justified by the facts, and that he therefore must return the money actually received. On more mature deliberation, however, we are not satisfied with all of the conclusions announced in our original opinion and that opinion is accordingly withdrawn.

Now, therefore, treating the case as an original one, we have concluded that the court erred in taking the case from the jury. We disagree with the contention that Ida Wright was bound by the contract either because of any power in her husband, I. M. Wright, to bind her, or on the ground of a ratification because of her joinder in the deed. It is undisputed that prior to the date of the contract the land had been duly conveyed to his wife by I. M. Wright. The legal effect of this conveyance was to invest in Mrs. Wright the separate interest in the land regardless of whether I. M. Wright had paid therefor the separate funds of his wife or community funds of both. Callahan v. Houston, 78 Tex. 494, 14 S. W. 1027; Kahn v. Kahn, 94 Tex. 114, 58 S. W. 825; Clay v. Power, 24 Tex. 305. This being true and there being no evidence that the contract was for necessaries or for the benefit of her separate property, Mrs. Wright had no legal capacity to make the contract, either directly or indirectly, or to authorize her husband to do so. Rev. St. 1895, art. 2970; Speer's Law of Married Women, § 46; Noel v. Clark, 25 Tex. Civ. App. 136, 60 S. W. 356; Lynch v. Elkes, 21 Tex. 229; Stroter v. Brackenridge, 102 Tex. 386, 118 S. W. 634; Cannon v. Boutwell, 53 Tex. 626.

Where, however, as there is evidence here tending to show, the wife surrenders to her husband a deed to her separate property duly made and acknowledged, for the purpose of delivery we think authority in the husband is to be implied to make such reasonable stipulations relating to the delivery of the deed to the grantee as shall not be violative of her instructions or in fraud of her rights. See Hughes v. Thistlewood, by the Supreme Court of Kansas, 40 Kan. 232, 19 Pac. 629. This brings us to a consideration of the effect of the deposit of the deed made by appellees in the Humeston State Bank. Save as may be inferred from the contract, the nature of the subject, and the acts of the parties, the purpose and conditions of the...