Cross v. Everts

• Decision Date: 31 October 1866
• Citation: 28 Tex. 523
• Parties: DAVID L. CROSS v. HENRY H. EVERTS AND WIFE.
• Court: Texas Supreme Court

28 Tex. 523

DAVID L. CROSS

v.HENRY H. EVERTS AND WIFE.

Supreme Court of Texas.

October, 1866.

The statute of frauds has made no alteration in the rules of pleading. Therefore, in a petition founded on an agreement for the sale of lands, it is not necessary to state that the agreement was in writing. When declared upon generally, without stating whether it is in writing or not, it will be presumed to be in writing so far as the pleadings are concerned. Pas. Dig. art. 3875, cl. 4, note 904; 5 Tex. 512;8 Tex. 78;12 Tex. 201;18 Tex. 162;20 Tex. 174.

But in a suit against a husband and wife, to enforce their contract to alienate their homestead, it is necessary that the petition should show that the wife executed the contract in the mode prescribed in the statute. Pas. Dig. art. 1003, note 427.

The privy examination, acknowledgment, and declaration before the officer, as required by the statute, are the essence and foundation of the obligation of her deed; and facts so fundamental as these, and so indispensable to her liability on the contract, cannot be supplied by presumption or inference, but must be averred. 4 Tex. 61;20 Tex. 211;contra,8 Tex. 397.

If the petition show that the land in controversy is the homestead of the defendants, and fail to show that the contract for its alienation was executed by the wife in the mode prescribed by the statute, it follows, that it is apparent on the face of the petition that the contract invests the plaintiff with no right in the defendants' homestead; and, therefore, a general demurrer should be sustained to the petition, in so far as it seeks a specific performance of the contract. Pas. Dig. note 198; 4 Tex. 62;22 Tex. 628;25 Tex. 148; 25 Tex. S. 109.

Every person, in legal contemplation, has a domicile somewhere, and can have but one at any given time; and with regard to a change of domicile the general rule is, that the original domicile is not lost until a new one is actually acquired, facto et animo. Pas. Dig. note 198.

If, in opposition to this general rule, it be admitted that an old homestead may be abandoned before a new one is acquired, the fact of abandonment can be established only by the most clear, conclusive, and undeniable evidence. 20 Tex. 29, 96.

The plaintiff alleged in his petition that, in pursuance of an agreement for the exchange of lands, he was admitted by the defendants into the partial possession of the land sued for, which was the homestead of the defendants; that the defendants had continued to reside on the land, and now refused to consummate the exchange by surrendering possession of the dwelling houses on the land occupied by them, or by receiving reciprocal conveyance from the plaintiff: Held, that these facts do not show an abandonment by the defendants of their homestead, but only a temporary intention to exchange it for a new one, and a change of that intention into a determination to retain their old homestead.

Neither do the facts thus alleged establish a fraud, for which the female defendant would, notwithstanding her coverture, be responsible in damages to the plaintiff. The land being the homestead of the family, and her agreement to exchange it for other land not having been executed in the mode prescribed by the statute, she had a right to retract her consent to the exchange; and her refusal to consummate it was not a fraud either in law or fact, and gave the plaintiff no right of action against her, either for specific performance or for damages. Pas. Dig. art. 4336, note 1043; 5 Tex. 290;8 Tex. 240;9 Tex. 297.

The plaintiff, suing a husband and wife, framed his petition with a double aspect and an alternative prayer, seeking either a specific performance of the defendants' agreement to exchange their homestead to him for other land, or else damages for their breach of the agreement. The petition failed to show that the wife executed the agreement in the mode prescribed by the statute for the conveyance by married women of their homesteads or separate property: Held, that a general demurrer to the petition was properly sustained, in so far as a recovery was sought against the wife, either by way of specific performance or judgment for damages. Pas. Dig. art. 1003, note 427.

But as to the husband, although a specific performance could not, on account of the rights of his wife, be decreed against him, yet he was liable in damages and the demurrer should have been overruled, in so far as the petition sought a recovery in damages against him. This last ruling, however, proceeds upon the presumption, arising from the petition, that the agreement to exchange, or some memorandum of it, was in writing; for otherwise, the agreement being in contravention of the statute of frauds, no action for damages would lie for its breach. Pas. Dig. art. 3875, note 904; 8 Tex. 78;13 Tex. 552;23 Tex. 589;27 Tex. 450.

APPEAL from Williamson. The case was tried before Hon. J. A. HOUGHTON, one of the district judges.

Suit by the appellant, Cross, against the appellees, H. H. Everts, and Catharine, his wife. The original petition was filed on the 3d of February, 1866. It set forth that, about the 18th of July, 1865, the plaintiff and defendants made a mutual exchange of lands, or an agreement for the exchange of lands, plaintiff agreeing and contracting to transfer to defendants, by way of exchange, a certain described tract in Burleson county, containing two hundred and seven acres; and the defendants, in consideration thereof, exchanging or agreeing to exchange and transfer to plaintiff a certain other described tract situated in Williamson county, and containing one hundred and seventy-nine acres; that the principal inducement to plaintiff to enter into the exchange was, that he was the owner of two other tracts of land in Williamson county, lying on each side of the tract last above mentioned, and separated by it from each other; that the defendants did not consider the tract which plaintiff was to exchange to them as equal in value to that which they exchanged for it, and in consequence it was stipulated between defendants and plaintiff that plaintiff should cause to be erected on the former tract a small house or cabin, and that so soon as the same was erected complete exchange and transfers should be made; that petitioner, in full compliance with this stipulation, had a small house erected immediately after the agreement, and afterwards, about the 1st of August, 1865, petitioner contracted to rent the land in Williamson county to certain parties in Lavaca county, who soon afterwards, having disposed of their property there, removed from said county, and, as the agents of petitioner, entered upon the possession of the said land with the consent of the defendants, who delivered such possession; that said parties, with the consent of the defendants, proceeded to and did break up a part of the land, and sowed wheat in the same, during which operations the defendants retained the possession of the dwelling-houses on the land, but merely as tenants of the plaintiff, until the house on the land in Burleson county should be completed by plaintiff; that, in full compliance with petitioner's part of the contract, he had tendered to the defendants a full and perfect transfer of the land in Burleson county, and he is now willing and anxious to complete the transfers and exchange, but that the defendants have failed and refused to deliver to the petitioner or his agent or tenants the possession of the said dwelling-house on the land in Williamson county, and to perfect the exchange and transfer of the same; that defendants allege, as their reason for so refusing, that said land is their homestead, and that the defendant, Catharine, refuses to complete the exchange of it; that the said Catharine, prior to said agreement, represented to petitioner that she was not merely willing, but was anxious to make the exchange, and that petitioner declared to her that he would not make the agreement unless she were perfectly willing; that, by reason of the refusal of defendants to comply with their contract and deliver possession of said dwelling-houses and land, petitioner has forfeited his contract with the parties from Lavaca county, to whom he had rented the same, and will have to respond to them in damages; that by reason of the refusal and conduct of the defendants the petitioner has sustained damages to the amount of $600. He prays for judgment divesting out of the defendants the title to the land in Williamson county, and vesting the same in him, and for his said damages, or, if such specific performance cannot be decreed, then that he have judgment for his damages against the defendants, and for general relief.

On the 2d of May, 1866, the defendants excepted to the petition, because, 1st, it does not allege the contract to have been made in writing; and, 2d, the petition is defective and insufficient to sustain a suit against the defendants. They also filed a general denial and a special answer, averring that no contract in writing was ever made between them and the plaintiff for the exchange of their lands, and that, if any agreement were ever made to that effect, it was a verbal agreement, and was null and void; that the land in Williamson county was the homestead of the defendants, and could not be alienated by them except in a mode prescribed by law.

On the next day the plaintiff amended his petition, and alleged that the agreement for the exchange was to be carried into complete effect as soon as he fully performed his part of it, by building a house on the land in Burleson county, and that the deeds were then to be made, and the whole agreement was to be fully performed within twelve months from the time it was entered into; that petitioner built the house at an expense of $200, and had in every respect fully performed his part of the contract; that inasmuch as petitioner might be absent when the house should be completed and the...