Brewer v. Wall

• Decision Date: 01 January 1859
• Citation: 23 Tex. 585
• Parties: ASA BREWER AND ANOTHER v. A. S. WALL.
• Court: Texas Supreme Court

23 Tex. 585

ASA BREWER AND ANOTHER

v.A. S. WALL.

Supreme Court of Texas.

1859.

The husband may, during the life-time of the wife, sell their community property, except the homestead, without her consent.

After the wife's death, the husband may carry into effect, contracts respecting their community property, entered into jointly with her, or by himself before her death.

The husband's bond, to compel his wife to convey the homestead, would be an unlawful contract; but his bond to convey it, by good title, at a future day, is not void, and damages may be recovered from him, upon its breach. 27 Tex. 450;28 Tex. 523.

Though the specific performance of such a bond, by the husband, ought not to be decreed, whilst the premises remain the homestead of the obligor and his wife, yet, if they be either community property, or the separate property of the husband, and if the wife die, or if they acquire another homestead before the time specified for performance, the specific execution of the contract may be decreed.

The homestead right of the wife does not survive at her death, so as to vest a similar right in the children of the marriage; and, if it be the husband's separate property, he may sell it. 20 Tex. 782;27 Tex. 80.

APPEAL from Panola. Tried below before the Hon. Charles A. Frazer. The facts are stated in the opinion.

Poag and DeBerry, for the appellants. Hart. Dig. art. 174, provides the manner in which the wife shall convey property in which she has an interest, and also the manner in which the homestead shall be conveyed; that is, by privy examination before an officer. This not having been done, and her consent never having been obtained, in the manner pointed out by the legislature, no interest that she may have had in the land passed by the bond or conveyance signed by her and her husband; but she clearly retained whatever right she had in the land up to the time of her death.

The land being also the community property of Wall and his wife, we admit that Wall, the husband, had the power, under art. 2422, Hart. Dig., to dispose of the whole of the land, her interest as well as his own, without her consent, during the marriage, if it had not been that the land (200 acres) was also the homestead, and being the homestead, could not be conveyed in any other manner than that pointed out by art. 174.

The land being the homestead, was not conveyed by Wall and his wife, in the manner pointed out by law, and her interest in it as community property, remained unimpaired by the act of herself or her husband, up to her death, and passed to her lawful heir, her child, and became immediately vested in that child, Rebecca Wall.

At the death of Wall's wife, his power to dispose of the community property, without his wife's consent, under the authority conferred by art. 2422, ceased; the law conferred that power during the marriage only. Wall's wife died 1st of March, 1855, long before the passage of the act, 26th of August, 1856 (6th Leg. adjourned session, p. 51; supplementary to Act of 13th March, 1848). Therefore, that act could not affect the rights of the heir of Mrs. Wall; the right of her heir being a vested one before the passage of the law.

M. D. Graham and Charles D. Moore, for the appellee.

P. Murrah, also for the appellee.

BELL, J.

This suit was instituted by the appellee, Wall, against the appellants, on a promissory note. The petition alleged, that the note was executed for a part of the purchase-money, of a certain tract of land, upon which the vendor's lien still existed, in favor of the plaintiff. The defendants stated in their answer, that in February, 1855, they purchased from the plaintiff, the tract of land described in the petition of plaintiff, as the land on which his vendor's lien existed; that the price to be paid was $1,200; that in February, 1855, at the time of the purchase, the plaintiff gave them a bond for title to the land; the bond is filed with the answer, and shows, that it was signed and sealed by A. S. Wall, and that it was signed by Caroline Wall, without a seal. The answer alleges, that Caroline Wall was the wife of A. S. Wall, and that the whole of the tract of land in question, was the community property of Wall and wife, and that 200 acres of it constituted the homestead of Wall and his wife. It is also alleged, in the answer, that Wall and his wife, Caroline, remained in possession of the premises, after the execution of the bond to the defendants, until the death of Mrs. Wall, about the 1st of March, 1855; that Mrs. Wall left a child about four years of age, at the time of the filing of the answer; that the bond for title executed in February, 1855, was never acknowledged by Mrs. Wall, in the manner required by law, to make it binding on her as a conveyance of the homestead. The answer shows, that about two-thirds of the purchase-money ($1,200) was paid...