Johnson v. Poag

• Decision Date: 01 January 1873
• Citation: 39 Tex. 92
• Parties: P. H. AND H. C. JOHNSON v. JAMES A. POAG.
• Court: Texas Supreme Court

39 Tex. 92

P. H. AND H. C. JOHNSON

v.JAMES A. POAG.

Supreme Court of Texas.

1873.

1. No contract made by the husband for the sale of property conveyed to the wife by a third party during the marriage, can confer any right on one who had notice that it was the separate property of the wife, unless the express authority be shown from the wife to the husband to make such contract.

2. A sheriff's deed made to the purchaser at sale under a judgment of a state court after the judgment debtor has been adjudged a bankrupt confers no title.

3. Liens acquired by judgments in the state courts can only be enforced in the bankrupt court after an act of bankruptcy has been committed, or the judgment debtor declared a bankrupt.

APPEAL from Hunt. Tried below before the Hon. W. H. Andrews.

This suit was brought by Philip H. Johnson and his wife, Hannah C. Johnson, against James A. Poag, to recover a house and lots which were bought with two promissory notes, the separate property of Mrs. Johnson, and which were placed in the hands of Poag by her husband for collection. With them Poag bought the property in question, as agent and attorney of Johnson and wife, and then rented it. Johnson and wife averred in their petition that Poag continued to act as their agent, attorney, and tenant, up to the commencement of this suit. This the evidence established. Poag set up as a defense that he had purchased the property from Johnson and wife, and that he had also purchased an outstanding title at sheriff's sale under a judgment against one A. G. Pace et al. and in favor of M. H. Wright. To this Johnson and wife, in their replication, answered that Pace had gone into bankruptcy and the judgment of M. H. Wright could not be enforced in the state courts, and they offered to deduct the amount paid by Poag from the rents due from him. Both parties deraigned title through A. G. Pace. Verdict and judgment for Poag, from which the Johnsons appealed.

James Farr & James J. Peters, for appellants.

Throckmorton & Brown, for appellee.

WALKER, J.

It is sufficient to notice the first and second assignments for error, both of which, we think, are well taken in this case.

If the property belonged to Hannah C. Johnson, as it seems it did--and of this the appellee must have had full notice, for he purchased the property from A. G. Pace for her, with her means, and had it deeded to her--in that case no evidence of a contract of sale by P. H. Johnson, her husband, could be admitted to affect the rights of his wife without an express authority being shown from her to him to make such contract; and, moreover, this so called contract with P. H. Johnson was never carried out by reason of the default of the appellee. There can be no doubt that the court also erred in refusing to admit in evidence Poag's letter to Pace, showing that Poag knew, at the time he claims to have purchased from P. H. Johnson, that the property belonged to his wife in her own right.

The evidence...