Kirk v. Houston Direct Navigation Co.
| Decision Date | 01 January 1878 |
| Citation | 49 Tex. 213 |
| Parties | MARY A. AND ROBERT S. KIRK v. THE HOUSTON DIRECT NAVIGATION COMPANY. |
| Court | Texas Supreme Court |
ERROR from Harris. Tried below before the Hon. James Masterson.
The Houston Direct Navigation Co. brought suit against Robert S. Kirk, the husband of Mary A. Kirk, on a moneyed demand, and to foreclose a mortgage executed by him alone on the 16th of September, 1872, on lots 4, 5, and 6, in block 289, on the north side of Buffalo bayou, in the city of Houston. The husband, after pleading to the merits, admits the making of the mortgage by him, but averred he was then, and yet is, a married man, and that the mortgaged premises were purchased and paid for with the separate means of his wife, and for the purpose of a homestead for himself and family; that his family are now, and were before the institution of this suit, occupying and enjoying said lots as a homestead, as citizens of this State, and that said lots were of value less than $5,000 at the time of their designation as a homestead; that his wife did not join in the execution of the mortgage, and he had no other homestead.
At the same time, the wife, Mary A. Kirk, intervened by leave of the court, alleging her citizenship and marital relation, and that the lots named in the mortgage were her separate property, bought and paid for alone with her separate means, long prior to the pretended indebtedness of her husband to the plaintiff below. She further averred that the property is and was the homestead of her family “from the -- day of ______, 1872,” and was not of the value of $5,000 at the time of its designation as such, and that she did not join her husband in the execution of said mortgage. Wherefore she asked that it be declared void, as a cloud upon the title of her separate property, as well as upon the homestead of her family and self.
The lots in controversy were conveyed to Mary A. Kirk by F. B. Chilton, 17th of June, 1872; the consideration purported to be paid by her, and her deed was of record at the date of the mortgage sought to be foreclosed. The testimony shows that the money paid for the lots was her separate property, and this testimony went to the jury without objection.
On this testimony, the court, among other things, charged the jury as follows: “The mere fact of the title standing in the wife's name is not notice of its separate character; and any one advancing money upon the security of such property, or purchasing it, will take a good title, unless the proof shows notice to such person so taking a mortgage and making advances, or purchasing.” To this portion of the charge, intervenor Mary A. excepted, and...
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Chalk v. Daggett
...the same is superior to the equitable claim of Mrs. Chalk. See Hill v. Moore, 62 Tex. 610; Parker v. Coop, 60 Tex. 111; Kirk v. Navigation Co., 49 Tex. 213. So much, however, cannot be said, we think, as to the amount claimed by appellee on the $5,069.17 note. That note bore date December 2......
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Henry S. Miller Co. v. Evans
...separate property of the wife is stamped upon the face of the deed, and all of the world has notice of that fact. Kirk v. (Houston Direct) Navigation Co., 49 Tex. 213 (1878).' It is similarly stated in Kahn v. Kahn, 94 Tex. 114, 58 S.W. 825, 826 (1900) 'Another class of cases has arisen in ......
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Kearse v. Kearse
...defining the property is based upon a misinterpretation of the opinions in Zorn v. Tarver, 45 Tex. 519; Id., 57 Tex. 388; Kirk v. Navigation Co., 49 Tex. 213; Morrison v. Clark, 55 Tex. 443; Ullmann v. Jasper, 70 Tex. 446, 7 S. W. 763; Laufer v. Powell, 30 Tex. Civ. App. 604, 71 S. W. 549; ......
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Van Burkleo v. Southwestern Manuf'G Co.
...is a purchaser, and is entitled to the protection of the recording acts, as much as the purchaser of the equity of redemption. Kirk v. Navigation Co., 49 Tex. 213; Jones, Mortg. § 475; Wade, Notice, § 262. The rule is fully recognized in this state that a mortgage to secure a negotiable pro......