Nichols v. Stewart
| Decision Date | 01 January 1855 |
| Citation | 15 Tex. 226 |
| Parties | RACHAEL NICHOLS v. CHARLES A. STEWART. CHARLES A. STEWART AND OTHERS v. ARTHUR SWIFT. |
| Court | Texas Supreme Court |
In this case some of the defendants appealed, and the plaintiff brought a writ of error, in same transcript.
Where an act of the legislature declared certain former marriages, according to the custom of the times, legal and binding and the issue legitimate, it was held that the act gave to such marriages the same effect as if they had been solemnized according to the law in force at their date, one of which was to make legal heirs of the children of the parties (acknowledged by the father) born before the marriage.
In 1832 A and B contracted marriage by bond, and lived together a few months; in 1834 C and B living together as man and wife, and having a child about six months old, contracted marriage by bond, A and B having a short time before cancelled their bond; a short time afterwards C, while living with B, as man and wife, died; on the 16th of January, 1836, the consultation decreed all marriages theretofore celebrated by bond or otherwise, under the heretofore existing laws, to be valid; on the 5th June, 1837, the legislature legalized all previous marriages according to the customs of the country, by bond or otherwise, where either the husband or wife had died previous to the passage of that law, provided the parties lived together as man and wife at the said death of either party: Held, that the second marriage was legalized, and the child being proved to be the issue of C and B, that she was legitimated as such.
Where heirship to the grandfather, by the father's side, was claimed through an act of legitimation passed after the death of the father, but before the death of the grandfather, an objection by the other heirs of the grandfather that the act was retrospective, and therefore void, was not noticed by the court.
A conveyance by the husband and wife, of all the right, title and interest which they had in and to the estate of a former husband of the wife, then in course of administration, was held to include the rights of the wife to the one-half of the residue of the community property after the payment of the debts chargeable against it; more especially, as the wife at that time (1845) had no right to any part of her deceased husband's separate estate.
Where the authentication of a wife's deed, in the attestation clause, omitted the word “seal” before the words “of office,” it was held to be immaterial. [25 Tex. Sup. 109.]
See this case as to mistakes in the authentication of conveyances by married women.
Appeal and error from Guadalupe. The marriage bond of Frederick Roe and Sarah Grogan was executed by them before an alcalde at Gonzales, in November, 1832, and was filed by him in his office, among the archives of the municipality of Gonzales, and is now on file in the office of the clerk of the county court of Gonzales county. John Sowell died in 1837, after the passage of the act of the 5th of June of that year, leaving several sons surviving, whose rights were represented in this suit. Roe died in 1837 or 1838. The other facts appear in the opinion.
J. Ireland, for Rachael Nichols. The language of this deed is exceedingly vague. It is about in these words: Convey to A. W. G. Davis all our interest in the estate of John Sowell. The estate of John Sowell was then open, and was not closed until about the year 1849. Mrs. Nichols' interest, or her title to her portion of the community, was as high and held in and by as complete fee simple title as did the husband in his lifetime. (Wright v. Hays, 10 Tex. 130.)
To hold that this deed conveyed Mrs. Nichols' own property would be to make a new contract for the parties.
A deed to property acquired in a particular manner will only convey that acquired in that particular way. (Wilkens v. Burton, 5 Vt. 76.)
But independent of the construction of this deed, they cannot supply the defective acknowledgment by parol. (Hayden v. Wescott, 11 Conn. 131;Stanton v. Button, 2 Id. 527.)
W. E. Jones, for Stewart, and Stewart and others. I. A sale by the wife of her interest in her husband's estate, while the administration is pending, it is difficult to torture into anything else than a sale of whatever she may be entitled to out of the property which is the subject of administration, as her husband's estate. The proposition is almost too plain for argument. The court in construing deeds will always give effect to the intention of the parties to them, whenever it can be done without a violation of some principle of law. In the case at bar, the circumstances under which the deed was executed, as proven on the trial, leaves no doubt as to the intention of both vendor and vendee.
II. The right of Swift to recover, as vendee of Rachael Turner and her husband, depends on the construction and effect given to the act of the consultation and subsequent laws on the subject of marriages by bond.
The first act on the subject is that of the consultation, 16th January, 1836. (Hart. Dig. arts. 24, 35.) This act absolutely decrees all marriages by bond to be valid, with a single provision that the bond shall be filed in the office of the municipality where executed. The bond of Roe and Sarah Grogan was so filed. The first inquiry which naturally presents itself is, what is the effect upon the marriages? I insist that its effect is to legalize the marriage with Roe absolutely; and as the vendor of Swift was born during the continuance of that marriage, it makes her absolutely the legitimate child of that marriage.
The object of the legislature, in the enactment of all this class of laws, was manifestly to render those marriages valid, which were invalid only for the want of ceremony in their celebration. If Roe and Sarah Grogan, at the time they entered into bond in 1832, had been married by the priest, no one will question that the subsequent marriage with Sowell, even if it had been celebrated by the priest, would have been void.
The law supplies the place of the priest, and, eo instanti, upon its passage by the consultation, every marriage which would have been valid had the priest officiated, became valid by the operation of the law, and every legal effect which would have flowed from a legal marriage at the time of its celebration immediately attached back to this marriage by bond, from the very date of the contract; one effect was to legalize the offspring, if any.
But it may be argued that the language of the law, upon its face, legalizes both marriages, the marriage with Sowell as well as that with Roe. It cannot be supposed that the legislature intended to legalize bigamy. If children had been born under both marriages, would it be for a moment contended that the law intended to legitimate them all? Such a proposition I apprehend will not be tolerated or entertained for a moment.
The first marriage was entered into in good faith; the remedial law comes in aid of such marriages. The children of that marriage, had there been any, would have been legitimated; they would have been the meritorious objects of legislative aid. Its character is not changed by the failure of such issue. The attempt to cancel the marriage bond was simply null. The remedial law acts upon the marriage to make it good; but it does not act upon the cancellation of the bond to give it effect. The second marriage was not made in good faith. It was contrary to good morals and propriety. It is not such marriage as ought to be set up as legal, at the expense of a former marriage still subsisting, and which was entered into consistently with morality and good faith.
The act of 1837 was passed under the constitution of the republic, which prohibited retrospective laws. At the passage of the law, Wm. A. Sowell was dead--a descent had been cast. The existing laws had declared who were his legal heirs, excluding the claimant in this case. It was incompetent for the legislature to pass a law creating a new heir and divesting rights which had been vested under the existing laws. If William Sowell had been living at the time of the passage of the law, the case might have been different, if he recognized her after the passage of the law. Nor is the case strengthened any by the fact that John Sowell, the father of Wm. A. Sowell, was living at the passage of the act, for the reason that whatever she could obtain of his estate it must be by virtue of being heir to her alleged father.
Paschal & Stribling, for Swift. The parties had a right to dissolve a contract not at the time recognized by law. The act of the legislature only operated upon such parties as were living together at the date of the act under marriage contract, or upon the issue of those who had previously died while living under contract of marriage by bond. We can see no ground upon which the claim of Swift can be defeated. That the act operated upon the children, see Linceonum v. Linceonum, 3 Mo. 310.
This suit was brought by the plaintiff, Rachael Nichols, to recover her share of one league of land granted by...
To continue reading
Request your trial
-
Rice v. Rice
...the first, and the third was adulterous. The property acquired during the second marriage was community property. 1 Tex. 621;3 Tex. 433;15 Tex. 226, 241;18 Tex. 102;20 Tex. 731. In a divorce case the jury found the facts which constituted ?? good cause for divorce and the marriage, but the ......
-
Cumby v. Garland
... ... Lewis v. Ames, 44 Tex. 338; Nichols v. Stewart, 15 Tex. 230; Smith v. Smith, 1 Tex. 621. The country was largely peopled by those who came from states where the common law prevailed, ... ...
- Burch v. Smith