Jane Reagan's Adm'r v. Holliman
| Decision Date | 01 January 1870 |
| Parties | JANE REAGAN'S ADMINISTRATOR v. M. P. HOLLIMAN. |
| Court | Texas Supreme Court |
1. In a suit by the legal representative of a deceased married woman, to recover land which had been donated to her as her separate property, the defendant pleaded that he had purchased the land from one L.; that previous to his purchase the married woman claimed this and also another tract, both situated on an eleven league grant claimed by L., that the married woman and her husband were desirous of settling on one of the tracts, and the husband, as the authorized agent of his wife, entered into a contract with L., by which the husband agreed to relinquish his wife's claim to the tract now in suit, and to pay L. one hundred dollars if L. would convey the other tract to him or his wife; and that L., pursuant to this contract, conveyed the other tract to the husband, and the married woman went into possession of it under such conveyance, and continued in possession of it until her death. Held, that this answer was demurrable, because it does not show that L.'s title was superior to that of the married woman; nor does it aver that she consented to her husband's contract with L. at time it was made, or that she ever ratified it, or that any consideration passed to her, or that the contract was legally or equitably binding on her; nor does it allege that she ever made any legal conveyance to L. of the land in controversy.
2. By way of estoppel the defendant further pleaded that before he bought the land from L. he called on the married woman, in whose right this action was brought, and she disclaimed any title to or interest in the land, and said she had no control of it, but that it belonged to L.; and in consequence of these statements defendant bought the land from L., which he would not otherwise have done. Held, to be insufficient as a plea of estoppel, because there is no averment that the married woman, in making the statements, acted with a knowledge of her rights, or made the statements to deceive the defendant, or that he was actually deceived by them.
3. Dealings of a husband with the separate property of his wife are always to be closely scrutinized, and they will not be upheld when even slight evidence of fraud or undue influence appears; nor can they be supported when they fail in the absolute requirements of the law.
4. It was error to admit in evidence, over objection duly interposed, a power of attorney from a married woman to her husband, made in 1853, and empowering him to convey her separate real estate, when the certificate to her acknowledgment did not show the privy examination required by the statute, and there was no evidence dehors the certificate that she executed the power voluntarily, etc. So, also, it was error to admit a written contract of the husband, made in virtue of such defective power of attorney, and importing a relinquishment of her title to land pertaining to her separate estate.
APPEAL from Leon. Tried below before the Hon. John Gregg.
The trial and judgment in the court below were had and rendered at the spring term, 1860. The facts of the case, in so far as material, are stated in the opinion with great perspicuity. Verdict and judgment below for the defendant, and plaintiff appealed.
Wm. D. Wood, for the appellant, filed an able and elaborate argument, discussing the entire case, but space can be afforded to but a small portion of it as follows: The second exception to the plea goes to the point that Lamar, the vendor of defendant, had only “a claim” to the land sued for, and not that he had the better and superior title to Mrs. Reagan. It must be recollected that the title of Lamar is here set up by way of giving color and equity to the compromise or agreement as to the conflict, which is the gist of the plea. No court will enforce an inequitable contract or compromise, and more especially when the rights and property of married women are to be affected, they being, on account of their disability, the peculiar favorites of courts of equity. It was necessary for the plea to make a showing of such facts as would bring it within the conscience and equity of the court to enforce the compromise against Mrs. Reagan. Such facts ought to have been alleged in the plea as to show the court that Mrs. Reagan or her separate property would have been advantaged by the compromise. Something more than a mere “claim,” not alleged or shown by any fact to have been the better and superior title to that held by Mrs. Reagan, ought to have been shown in the plea; or at least facts alleged showing that the right was doubtful between the parties, otherwise there was no basis for the estoppel or ground to support the compromise. The plea does not show any consideration for the compromise.
Third. Exception to this plea goes to the point that the compromise alleged does not in law or equity bind Mrs. Reagan or her representatives. The plea sets up a compromise made by Joseph B. Reagan, the husband of Mrs. Reagan and her alleged agent and attorney in fact. It is contended that the mode of compromise or conveyance, set up in the plea, is not such as is required by the statute to enable married women to divest themselves of title to their separate property, and therefore the compromise or conveyance set up is not in law or equity binding upon the plaintiff in this suit. See Callahan v. Patterson, 4 Tex. In this case, the conveyance was made by deed signed by both the husband and the wife, and it was shown that a part of the purchase money went to pay the debts of the wife contracted before marriage, and for the use and benefit of the family, and yet the court refused to enforce the conveyance, because it was not acknowledged by the wife in the mode pointed out by the statute, and in the face of the fact that the wife was mainly instrumental in effecting the sale. In Womack v. Womack, 8 Tex. 397, it is laid down by the court that the statute does not expressly declare void any other mode of conveyance made by the wife than that pointed out by the statute; that the free, full and voluntary consent of the wife may be shown by other modes than the certificate of acknowledgment of an officer, and she will be bound, provided it is equitable to enforce it against her, that is, provided that the conveyance was for the actual benefit of the wife or her separate property. This case goes further. It was alleged and proved that the conveyance was for the benefit of the wife's separate property; that she consented to it at the time and continued to acquiesce in it up to the time of her death. And I understand the court to say in this case that it is necessary to prove all of this. If necessary to prove it the plea should contain it. There is no allegation in the plea that Mrs. Reagan consented to the compromise at the time it was made or subsequent, and that she continued to acquiesce in it. There is no allegation to show that the agreement was for the benefit of the separate property of Mrs. Reagan. It cannot be sustained by the case of Womack v. Womack, nor does the case of Gregory v. Vanvleck, 21 Tex. 40, sustain it.
But can the wife convey by agent or attorney? See 2 Kent, 139, which lays down the general rule as to how she can convey her separate property. In a note on this page it is stated to have been decided in Vermont, that she cannot convey by power of attorney to her husband. I apprehend that it will not be contended that she could verbally make an agent, and that a subsequent verbal assent by her to the conveyance made by such agent, would bind her, unless such assent was given and coupled with a disclaimer, which latter should induce a purchase by an innocent third party. Nor will she be any more bound by the conveyance or agreement of an agent constituted by a written power. A power of attorney simply to sell vests in the agent no interest, and conveys no right till executed. It is revocable at any moment. So far as a married woman is concerned it could serve no other purpose, if properly authenticated, than evidence of a willingness to the sale at the time of the execution of the power; not that she was willing to the sale at the time the conveyance was in fact made by the agent, which might be weeks and months subsequent to the execution of the power. So in every case of sale by agency of the separate property of married women, whether by written power or not, it must be necessary to allege that at the time of...
To continue reading
Request your trial