Heidenheimer v. Thomas

• Decision Date: 13 February 1885
• Docket Number: Case No. 2019.
• Citation: 63 Tex. 287
• Parties: SAMUEL HEIDENHEIMER v. MATTIE THOMAS.
• Court: Texas Supreme Court

63 Tex. 287

SAMUEL HEIDENHEIMER

v.MATTIE THOMAS.

Case No. 2019.

Supreme Court of Texas.

Feb. 13, 1885.

APPEAL from Colorado. Tried below before the Hon. Everett Lewis.

Mattie Thomas, for herself and as next friend of her daughter Susie, aged six years, brought this suit on the 16th of June, 1882, against Heidenheimer & Richter, for the recovery of lot 16, in block 4, in the town of Weimar, and for the rental value thereof. On the 14th of October, 1881, the lot was a part of the homestead of Mattie and her husband, H. C. Thomas, and on that day they conveyed to Heidenheimer. He afterwards conveyed it to Richter, and the latter back again to the former. It was alleged that on the 14th of October, 1881, H. C. Thomas was non compos mentis, and his condition was known to appellants and notorious in the town of Weimar; that the notary who took her private acknowledgment to the conveyance to Heidenheimer was the agent and employee of the latter, and never explained to her the value thereof, but on the contrary expressly informed her that her signature was only required to the instrument as a matter of form; that all business men did or had to do the same that her husband had done in signing said instrument, and that it amounted to nothing; that she was ignorant of its contents and did not know it was a deed to the lot until long afterwards; that the appellants had full knowledge of the acts and declarations of the notary, and that Heidenheimer, when he caused the notary to take the acknowledgment of herself and husband to the deed, intended to and did commit a fraud upon her. Verdict was for the appellees for the lot and its rental value, $40 per month, from the 14th of October, 1881. Judgment accordingly. Heidenheimer alone appealed.

The testimony on the issue of insanity pro and con is interesting, but quite too lengthy for insertion. The objectionable language indulged in by counsel on both sides (made doubtless in the zeal of advocacy) need not be here perpetuated, since its publication would give no force to the doctrine in the opinion announced, with regard to it.

Kennon & Townsend, for appellant, that occasional insanity, caused by intemperance, will not avoid a deed unless it is shown to have existed when the deed was made, cited: Hall v. Perkins, 3 Wend., 626;Odell v. Buck, 21 Id., 142;Henderson v. McGregor, 30 Wis., 78; Lewis v. Baird, 3 McL., 56; Redfield on Wills, 32, sec. 4; 1 Greenleaf on Evidence, sec. 81; Wallis v. Hodgeson, 2 Atk., 55; Attorney-General v. Paruther, 3 Bro. Chancery Cases, 441; Gralill v. Baw, 5 Pa. St., 441; Jackson ex dem. Cadwell v. King, 4 Cow., 207.

That the deed will not be set aside if the purchaser was ignorant of the lunacy, unless the purchase money is restored, they cited: Moulton v. Camvoux, 2 Exch., 502; Price v. Berrington, 7 Eng. L. & Eq., 254; Wilder v. Weakley, 34 Ind., 184; Behren v. McKenzie, 23 Iowa, 343; Lincoln v. Buckmaster, 32 Vt., 658;Scanlon v. Cobb, 85 Ill., 296; Beals v. Lee, 10 Pa. St., 56.

Foard & Thompson, for appellee, cited: Hart v. McDade, 61 Tex., 208;Pierce v. Fort, 60 Tex., 464.

STAYTON, ASSOCIATE JUSTICE.

The appellee seeks to set aside the deed purporting to have been made by herself and her deceased husband, on the grounds:

First. Because her husband was of unsound mind, and hence incapable of contracting, at the time the deed was executed.

Second. Because of alleged fraud in the manner in which her signature to the deed was obtained and want of privy examination.

The property in controversy constituted a part of the homestead of the appellee and her husband at the time the deed purported to have been executed.

The jury were instructed very fully in reference to the mental condition of the husband at the time the deed was executed, which would authorize the setting aside of the deed on the ground of his want of capacity to contract at the time the deed was made.

It would be unprofitable to set out in this opinion the evidence before the jury tending to show that H. C. Thomas was non compos mentis at the time the deed was executed.

The evidence offered to show the mental condition of H. C. Thomas at the time the deed was executed, and especially that of his family physician and two others, is such as would fully have justified the finding that his mental condition was such as to deprive him of capacity to contract; and that there was evidence tending to a different conclusion furnishes no reason why, in disregard of well settled rules, this court should refuse to regard the finding of the jury conclusive on that question.

This renders it unnecessary to consider the other ground on which relief was sought, unless it be true that, if such was the mental condition of the husband, the deed of the wife alone would be sufficient to pass title to the property.

In a number of cases the right and power of a wife who has been abandoned by her husband to sell, without being joined by him, her separate estate, as fully and in the manner that a feme sole may, has been recognized, as has been her right and power to sell, when thus situated, the common property, when necessary to the maintenance of herself and family. Wright v. Hays, 10 Tex., 135;Cheek v. Bellows, 17 Tex., 617;Fullerton v. Doyle, 18 Tex., 13;McAfee v. Robertson, 41 Tex., 358;Kelley v. Whitmore, 41 Tex., 648;Ann Berta Lodge v. Leverton, 42 Tex., 18;Walker v. Stringfellow, 30 Tex., 573.

The reason for the rule is clearly given in these cases; when the power exists, and to what extent it may be used, is also indicated.

In Wright v. Hays it is said, “His desertion and absence are the foundation of her new rights and authority. His absence or civil death are prerequisites to the acquisition of these rights by the wife.”

In Cheek v. Bellows it was said, “She and her children are entitled to a support from the property, and if the husband is absent there is no reason nor rule of law that would prohibit the wife from making a contract to meet the necessities of the case. It would be a strong case that would permit her to go further.”

In the case of Forbes v. Moore, 32 Tex., 200, it seems to have been held that, during the insanity of a husband, the wife might dispose of so much of the common property, or, in case there be none, of so much of the separate property of the husband, as might be necessary to supply the...