Clayton's Adm'r v. Frazier

• Decision Date: 01 January 1870
• Parties: CLAYTON'S ADMINISTRATOR AND OTHERS v. J. FRAZIER.
• Court: Texas Supreme Court

33 Tex. 91

CLAYTON'S ADMINISTRATOR AND OTHERS

v.J. FRAZIER.

Supreme Court of Texas.

1870.

1. Plaintiff sued the heirs and administrators of a married woman for title to land which had been her separate property, and for which she and her husband had executed to plaintiff a bond for title on his payment of the purchase money; but there was no privy examination of the married woman as to her voluntary execution of the bond. Plaintiff's petition alleged payment of the purchase money, possession since his purchase, valuable and permanent improvements by him, and that the married woman did in fact execute the bond voluntarily, and never wished to retract it. Defendants demurred to the petition, relying on the want of the privy examination of the married woman. Held, that the petition presented a case for equitable relief by specific performance, and that the demurrer was rightly overruled. Womack v. Womack, 6 Tex. 397, and Dalton v. Rust, 22 Tex. 133, cited by the court, and the rulings therein on this question, approved.

2. The statute (Pas. Dig. art. 1003) prescribing the mode of conveying separate property of married women does not necessarily invalidate all conveyances otherwise made. The voluntary execution by the wife may be established by proof, and a case be made on which the conveyance will be sustained in equity, notwithstanding there was no privy examination of the married woman.

3. Though an incompetent witness was erroneously permitted to testify by the court below, yet when the same facts testified to by him were also fully established by other and unobjectionable evidence, the error will be regarded as immaterial.

4. On a bill for specific performance of a title bond for land, the court below adjudged that plaintiff recover the land, and that title be divested from defendants and be vested in plaintiff; but this court, though sustaining the judgment in substance, reforms it, and decrees that the defendants, within thirty days from the close of the term, do make to the plaintiff a deed in fee simple, and that in default of such conveyance this decree do stand as title to him.

APPEAL from Fayette. Tried below before the Hon. George W. Smith.

The material facts of this case are clearly stated in the opinion of the court. The cause was submitted to a jury, who returned a verdict for the plaintiff. A new trial being refused, the defendants appealed.

L. Lindsay, for the appellants. The first error assigned is the overruling of the demurrer. This assignment strikes at the foundation of the appellee's cause of action. Under it two questions arise, viz.: First. Can a married woman convey her separate real estate in any other mode than that prescribed by the statute? O. & W. § 207. Second. If she can, does the petition contain such a statement of facts as will authorize the enforcement of a contract to convey, not executed in the manner prescribed by the statute?

At the common law, the wife could not convey her real estate. 2 Kent, 5th ed. 150; Whitaker v. Blair, 3 J. J. Marsh. 241. In equity, she could charge her estate. But “the doctrines of courts of equity as to the power of married women over their separate estates are not recognized as rules by which the powers of married women over their separate estates under our statutes, and their consequent liabilities, are to be determined.” Hollis and Wife v. Francois and Border, 5 Tex. 198. In the above case the chief justice said: “The statute has prescribed a special mode for the conveyance of the separate property, and unless this mode be pursued, the wife has no power to charge her separate estate except for necessaries,” etc. In the case of Callahan v. Patterson and Patterson, 4 Tex. 61, the court held that the wife was not responsible on a bond for title similar to that sued on in this case, although it was proven that the purchase money was for necessaries for the family. They also say that the “privy examination of the wife is indispensable to the conveyance of her separate property.” In Kentucky, under a statute similar to that of Texas, the court hold that the privy acknowledgment of the wife is indispensably necessary to a valid conveyance of her separate property. Steel v. Lewis, 1 Mon. 49.

It cannot be said in support of the judgment of the court below, that the proceeds of the sale were reinvested for the wife's benefit, for this would authorize the husband, in violation of the statute, and without the consent of the wife, to dispose of her property at pleasure. Under the constitution she is entitled to hold her separate property, and the statute prescribing the mode by which she may convey it, is made for her protection and her benefit.

In the case of Miller v. Shackelford, 3 Dana, 299, the court hold that the reinvestment by the husband of the proceeds of the sale for the benefit of the wife, will not support the sale.

The appellee has in his petition shown no such equity as will sustain the court in enforcing the performance of the obligation in said bond; nor in giving the complainant judgment for his improvements, or for the purchase money, as against the administrator. There is no fraud alleged against the deceased, Mrs. Clayton. True, she permitted the appellee to make improvements on her land, if a married woman can permit such a thing in any other than the mode prescribed by the statute. A married woman is not presumed in law to look after her separate property. This duty devolves on her husband. Were she held responsible for not preventing such improvements on her land, she is afforded poor protection by the law. If such improvements are made on the land of the husband, without his consent, express or constructive, he will not be required to pay for them. The wife can only consent in the formal manner prescribed by the statute. It would be different had she expressly directed such improvements to be made under promise of conveyance, and had herself received the benefit thereof.

But in the case at bar, it is not proposed to hold her responsible for any positive act of hers, but for not preventing the improvements made by the appellee. This would interfere with the marital relation, in requiring the wife to run counter to the wishes of her husband.

The appellee ought not to recover back the purchase money from the estate of Charlotte Clayton, because he shows by his petition that he paid her nothing.

He executed his notes, as shown by his petition, to the husband, H. R. Clayton, and paid one of them to him. The other two, he alleges, passed into the hands of the administrator of Charlotte Clayton, but he does not say that they were not regularly negotiated by the said H. R. Clayton, nor how they got into the hands of the administrator. But we will not argue further the error of overruling the demurrer, as there are other points which we think must reverse the judgment.

The appellee had no equity to support his claim as against the appellants. He is presumed to have known the law. He must have known what was necessary to convey the separate property of the wife. Having undertaken to purchase land from a person incompetent to sell, except in the manner prescribed by the statute, he is not entitled to the favorable consideration of the court.

But the appellants proposed in their answer to refund any purchase money which may have come wrongfully into their hands.

The administrator was a stranger to the transaction, and received the unpaid notes from the hands of the surviving husband, at the suggestion of the latter, as assets of the estate.

Webb & Jarmon, for the appellee. First. The appellants contend, that the court erred in overruling their demurrer, and under their first assignment of error insist that Mrs. Clayton, being a married woman at the date of the title bond, could only convey her separate property in the mode and by the forms required in the statute (O. & W. Dig. § 207), and if she could do so, the facts of appellee's case do not authorize the enforcement of this contract for a title.

We are not to look to the common law for precedents, nor for authority, concerning the separate conveyance of a wife, in this state, nor the mode of conveyance. “The principles and rules of the common law, as to the effect of coverture, so far as they affect the capacity of the wife to hold property in her separate right, are totally expunged from our code of jurisprudence, and in an investigation of the rights of the wife must be altogether discarded from consideration.” Edington v. Mayfield. 5 Tex. 363. “Husband and wife are not one under our laws; the existence of the wife is not merged in the husband.” Wood v. Wheeler, 7 Tex. 13.

That a married woman can convey her separate estate without her privy examination, in the mode required by the statute, has been positively decided by this court; we refer the court to the case of Womack v. Womack, 8 Tex. 397.

How applicable is this decision to the one now before the court? The appellee has proven every fact to show Mrs. Clayton's willingness to this trade, and that she never wished to retract it, to the day of her death. The case does not rest alone on the testimony of H. R. Clayton, as the appellants contend. Mrs. Bridges and Mrs. Green both speak of it, and tell the causes why she had sold it--to build her a house on her separate property. All the witnesses concur on the point of her recognizing the contract; living in the immediate vicinity of appellee; knowing of his improving the place, etc. The facts in this case are even stronger than those in Womack v. Womack. The appellants refer to the case of Callahan v. Patterson, 4 Tex. 61, as an authority that a married woman cannot convey property without a privy examination, etc. The court will perceive, from the facts of that case, that no possession was taken by the party purchasing, nor other causes that would raise an equity in favor of the purchaser. The case cited by appellants, of Hollis and Wife v. Francois and Border, 5...