Patton v. King

• Decision Date: 01 January 1863
• Citation: 26 Tex. 685
• Parties: MOSES L. PATTON v. M. T. KING AND ANOTHER.
• Court: Texas Supreme Court

26 Tex. 685

MOSES L. PATTON

v.M. T. KING AND ANOTHER.

Supreme Court of Texas.

1863.

A married woman can, jointly with her husband, make a valid conveyance of lands, her seperate property, by an attorney in fact duly authorized by power of attorney, executed and acknowledged in the manner prescribed by law for the execution and acknowledgment of deeds of conveyance.

An attorney in fact, authorized as aforesaid to convey lands, the separate property of a married woman, is competent to make the legal acknowledgment of his deed as such attorney, for registration.

It was error, therefore, to exclude as evidence of title a power of attorney duly executed and acknowledged by a married woman, jointly with her husband, empowering the attorney to convey lands, her separate estate; and also to exclude the deed of conveyance of such attorney, duly acknowledged and recorded.

A certificate of an officer taking a deposition which does not show that the answers of the witness were sworn to before him is insufficient. [15 Tex. 278;ante, 147.]

This was an action of trespass to try title, brought by the appellant, Patton, against the appellees, M. T. King and M. H. Haynes, for the recovery of a tract of land in the county of Nacogdoches.

The plaintiff, as evidence of his title, offered a power of attorney from Antonio Perez and his wife, Jacoba Buena??y Perez, to James H. Starr and Nathaniel Amory, and also a deed from said Starr and Amory, as such attorneys in fact to the plaintiff.

The defendants objected to the evidence on the ground that a married woman could not convey her lands by attorney, but only by deed executed by herself jointly with her husband. The court sustained the objection and excluded the power of attorney and the deed.

The other facts are sufficiently stated in the opinion.

There was verdict and judgment for the defendants, and a new trial refused to the plaintiff.

George F. Moore, for appellant.

Walker, for appellees.

WHEELER, C. J.

The ruling of the court excluding the power of attorney and deed of Perez and wife, conveying the property of the latter, proceeded upon the ground that a married woman cannot, jointly with her husband, make a valid conveyance of lands by an attorney in fact. In this opinion we think the court erred. To hold that a married woman cannot convey her separate property except by deed would be, we think, to give the statute too narrow and literal a construction to comport with the previous decisions of the court or the intention of the statute. It has never been questioned that a married woman may create a charge or incumbrance upon her estate, though the statute, in terms, provides only the mode of disposing of it. Hart. Dig. art. 173. The ability to give a valid power to convey may be essential as a means to the exercise of the power of disposition, and therefore highly...