Cheek v. Bellows

• Decision Date: 01 January 1856
• Parties: N. S. CHEEK v. D. C. BELLOWS AND WIFE.
• Court: Texas Supreme Court

17 Tex. 613

N. S. CHEEK

v.D. C. BELLOWS AND WIFE.

Supreme Court of Texas.

1856.

Where the husband is absent, leaving no one else authorized to take care of the common property, the wife has the implied authority to do so.

Where the husband is absent, there is no reason or rule of law that would prohibit the wife from making such contracts respecting the community property as are necessary for its preservation and the support of herself and children.

Where the husband kept a hotel, which was the common property of himself and wife, and being arrested for crime, broke jail and escaped; and the wife, alleging that she was in a state of destitution, rented the hotel for a year for a reasonable rent in money and board for herself and children, it was held that she had authority to do so, and that the contract was such as the circumstances justified.

Where the circumstances exist which give the wife authority to make contracts during the absence of the husband from his home, it would seem that her contracts may be proved or acknowledged in the same manner as those of a feme sole, and that a privy examination is not essential to give them effect.

Appeal from Lavaca. Tried below before the Hon. Fielding Jones.

The lease was as follows:

The state of Texas, county of Lavaca. Article of agreement made and entered into between N. S. Cheek of the first part, and Mary H. Bellows of the second part, both parties of county and state aforesaid, witnesseth, that the said Mary H. Bellows has this day rented to the said Cheek the hotel in the town of Hallettsville, known as the Hicks hotel, together with all the furniture and appliances of said hotel and the stables, gardens, lots, etc., appertaining to the same, for the term of one year from the 16th day of the present month; and the said Mary H. Bellows has also hired to the said Cheek, two negro slaves to wit: Austin, a negro man, and Elvira, a negro woman, for the term of one year, from said 16th day of June, inst., upon which day possession of said property and slaves is to be delivered. And the said N. S. Cheek obligates himself to pay to the said Mary H. Bellows, for the rent and hire of said premises and slaves, the sum of two hundred dollars on the 16th day of December, A. D. 1856, and the further sum of three hundred and twenty-five dollars on the 16th day of June, A. D. 1857. He also obligates himself to furnish to Mary H. Bellows the room in said hotel now occupied by her as a family room, it being the most southern room, fronting on the public square, and also board her and her two younger children, and wash for them during the term of said renting and hiring as above stated, all of which said services, by the said Cheek, are in consideration of said renting and hiring as stated above; and the said Cheek binds himself to take good care of said premises and treat said slaves well during said time and to clothe said negroes, and to pay their physician's bills during said time and to return said premises in good condition and repair, at the close of said time, to said Mary H. Bellows. Dated June 12, 1856. Signed and sealed by the said parties, using scrolls for seals. No privy acknowledgment.

This proceeding for forcible entry and detainer was commenced July 12, 1856.

The statement of facts was as follows:

Plaintiffs offered to prove possession at the time of alleged trespass, which defendant admitted. Plaintiffs made profert of a deed of conveyance to D. C. Bellows and Mary H., his wife, from A. W. Hicks and rested their case.

Defendant proved by John McKinney that D. C. Bellows was in his custody as sheriff of the county, charged with having committed an assault with intent to kill, and that said Bellows had made his escape from the jail at Hallettsville, in the county of Lavaca, where he was confined, and left the neighborhood, and on the 12th of June, 1856, the time the alleged agreement was entered into, was a fugitive from justice and eluded the...