Burr v. Wilson

• Decision Date: 01 January 1857
• Citation: 18 Tex. 367
• Parties: JOSHUA BURR v. ANN E. AND W. A. WILSON.
• Court: Texas Supreme Court

18 Tex. 367

JOSHUA BURR

v.ANN E. AND W. A. WILSON.

Supreme Court of Texas.

1857.

It seems that the emancipation of a minor, by marriage, under the Spanish law, is a discharge from parental power; gives him control of his personal property; and enables him to make contracts; but does not relieve him from all disabilities of minority, and especially in relation to real property.

Before the passage of the Act of 1848, “better defining the marital rights of parties” (Hart. Dig. p. 737), certain rights were bestowed and exemptions granted to married minors, and these should be construed liberally to advance the ends intended, but not indefinitely for other purposes than those designed, and to the injury of those for whom the law intended benefit.

The general power of making contracts is not expressly or impliedly included in any of the laws conferring rights on married infants; and consequently they have a right to avail themselves of their privilege, when any such contracts are attempted to be enforced.

Where the defendant pleaded infancy in a suit on a note, and the plaintiff replied that the note was given for necessaries furnished the defendant at her request, and defendant excepted on the ground that it was not stated of what the necessaries consisted, when, how or by whom furnished, or the value of the same, it was held that the exception was properly sustained.

It is scarcely necessary to say that the principles of the decision in this case, will not apply to a female married at the time or after the passage of the Act of 1848 (Hart. Dig. p. 737), as by that act she was made of full age, whether she had reached the age of twenty-one years or not.

Error from Harris. Tried below before the Hon. Peter W. Gray.

Suit by plaintiff in error, against defendants in error, commenced December 10th, 1846, on three promissory notes for $635 each, dated January 2d, 1843, payable one, two and three years after date, signed by the said Ann E., then Ann Eliza Hunt, and Ann D. W. Page, and indorsed to the plaintiff. Ann D. W. Page, who was the mother of Ann Eliza, had been discharged in bankruptcy; and the latter had since married her co-defendant. Plea of infancy. Replication “that it was not true that said defendant Ann Eliza, at the execution of said notes, was a minor, incapable of contracting; on the contrary the said Ann Eliza was at the time fully capable of contracting. But if true, that the said Ann Eliza was not of full age, and incapable of making any binding contract which is not admitted, then the said plaintiff alleges that the contract entered into was for necessaries furnished the said Ann Eliza at her special instance and request.” To so much of the replication as set up that the contract was for necessaries, etc., defendants excepted on the ground that it was not stated of what said necessaries consisted, when, how or by whom furnished, and the value of the same, etc. This exception was sustained, and the plaintiff did not amend. At the trial defendants proved that at the dates of the notes the said Ann Eliza was only fourteen years and six months old, but had been married and was then a widow. It did not appear when she was married. The court instructed the jury that if they believed from the evidence, that the defendant Ann Eliza was under twenty-one years of age when she signed the notes, they should find for the defendants. Verdict and judgment for the defendants.

C. W. Buckley and J. W. Henderson, for plaintiff in error, cited Guirot v. Guirot, 3 La. (N. S.) 400; Babcock v. Peniman, 5 Id. 563; Grisby v. Louisiana Bank, 3 La. 492; Hart. Dig. art. 2412, 1031, 1493, 2417, 173, 174, 2442, to the point that marriage removed the disabilities of minority; that from the necessities of the case, marriage must have such effect, counsel cited 1 White, Recop. 4; is. 7, 11, 13, 15, 17; 3 Comyn, Dig. 546, 548. The court of chancery will not appoint a guardian for a female after marriage. 1 Vesey, 160-91.

Jordan and Thompson, for defendants in error, cited Wood's Civil Law, 140.

HEMPHILL, CH. J.

In 1843, Ann D. W. Page and Ann E. Hunt executed to Joshua Burr, the plaintiff, three joint and several promissory notes, payable in one, two and three years. Ann Eliza Hunt had been previously married, but was then a widow, and between fourteen and fifteen years of age. She subsequently intermarried with William N. Wilson, and suit was brought against her and her husband for the recovery of the notes. On trial there was verdict and judgment for defendants, and the plaintiff has brought up the cause by writ of error.

The defendants pleaded the infancy of Mrs. Hunt at the time of executing the notes, and the principal question is whether she was bound in law to pay the notes, being under twenty-one years of age at the time they were made.

This cause has been discussed by counsel with ingenuity, ability and research; and, with the aid of their expositions, we will proceed to consider the question for our decision.

The counsel for plaintiff in error has referred to some decided cases in Louisiana to show the disabilities of minors not emancipated, and that marriage did emancipate a minor from such disabilities. Among others he refers to the case of Grisby v. The Louisiana Bank, 3 La. 492. This shows that marriage emancipated a minor under the Louisiana code, so far as to enable him to sell his personal but not his real property. Such emancipation is only partial, and the effect of marriage upon the disabilities of minors in Louisiana need not be further considered. But, as there has been reference to the effect of emancipation by marriage, under the civil code of Louisiana, I will refer briefly to its effect under the laws of Spain, a subject of interest, especially as our laws on marital rights are in substance but a continuation of the rules of Spanish jurisprudence on the same subject matter.

It appears, then, by the laws 47 and 48 of Toro, which are Law 3, tit. 5, lib. 10, Nov. Recop., that the minor, whether male or female, was forever emancipated on marriage; that they should have for themselves the usufruct of their adventitious property although their father may be living.

But what is the extent of this emancipation? The minor is discharged from paternal power, but the commentators, at least many of them, are of opinion that he has not all the rights of a major, until he reaches the age of maturity fixed by law. Magro y Belena Instit. Civil, Hispan. Ind. vol. 1, pp. 234-35-36; Hermosilla, p. 366. Escriche, in his dictionary, under the word “Emancipacion,” says it is not believed that a son, emancipated, can exercise all the rights of a father of a family. If he had not reached the age of twenty-five years, he will need a tutor or curator, as other minors, and the father himself, where the emancipation was not forcible, would be the legitimate curator. Under the word “Menor” (paragraph 12), the same author says that the minor of eighteen years can administer his own property and that of his minor wife (L. 7 tit. lib. 10, Nov. Recop.), but he does not therefore become a major. Until twenty-five years he has the benefit of restitution in integrum; must appear in judicial proceedings by a curator ad litem; and he cannot sell or encumber his real property without the decree of the judge, although he may make other contracts. Under the word “Muger,” the same author states that where a married woman who is a minor is about concurring in a contract to mortgage, grant or sell her property, the husband should petition to the court to appoint a curator to intervene in the making of the contract, since her emancipation by marriage has the effect only that her father has no power over her, nor can he resume it after she becomes a widow; yet she is not to be reputed an adult and capable of self-government. This rule, as stated by Escriche, is, perhaps, to be understood with the qualification that the intervention of a curator is necessary only where the husband is also a minor, and not where he is an adult, and thus, in the opinion of some jurists, superseding the necessity of curator for his wife. Hermosilla, p. 366.

From this imperfect review of the Spanish law, it appears that the emancipation of a minor, by marriage, is a discharge from paternal power; giving him control of his personal property, and enables him to make contracts, but does not relieve him from all disability of minority, and especially in relation to real property.

We will now consider the effect of marriage upon the disabilities of minors under the laws in force at the time of making these notes, and it is admitted by counsel that, by the common law introduced in 1840, the age of majority is twenty-one years; but he insists that the marriage of a minor operated an emancipation from disabilities, and in support of...