Pitts v. Elser

• Decision Date: 03 December 1894
• Citation: 28 S.W. 518
• Parties: PITTS et al. v. ELSER.
• Court: Texas Supreme Court

28 S.W. 518

PITTS et al. v. ELSER.

Supreme Court of Texas.

December 3, 1894.

Certified questions from court of civil appeals, Second supreme judicial district.

Action by Fannie L. Pitts and another against Max Elser. On appeal by plaintiff to the court of civil appeals, questions were certified to the supreme court.

Randolph & Rogers, for appellants. Ball, Tempel & Ball and M. B. Harris, for appellee.

BROWN, J.

The court of civil appeals for the Second supreme judicial district certifies to this court the following question: "In this case we deem it proper to certify for decision the question whether a married woman, who has purchased personal property, and paid part of the purchase price, cash, and promised to pay the balance at a day specified in the future, at which time, upon the payment being made, the vendor is to deliver the personal property to her, can, before the time for the deferred payment and delivery arrives, avoid the contract, and recover back the cash payment made, on the ground of coverture."

We answer that, under the facts stated, a married woman cannot, solely on account of her coverture, recover the payment made. Where money is voluntarily paid, with full knowledge of all the facts, it cannot be recovered, although it may have been paid upon a void demand, or upon a claim which had no foundation in fact. Taylor v. Hall, 71 Tex. 216, 9 S. W. 141; Gould v. McFall, 118 Pa. St. 455, 12 Atl. 476. This proposition is too well settled to require further citations of authority. A married woman, who voluntarily pays her money or other personal property upon a contract made by her, or in any way that would bind a man, cannot recover it back simply upon the ground that she is a married woman. Sellmeyer v. Welch, 47 Ark. 485, 1 S. W. 777; Gillespie v. Simpson (Ark.) 18 S. W. 1050; Gould v. McFall, 11 Pa. St. 455; Johnson v. Jones, 51 Miss. 860. Counsel for appellants cite Cowles v. Marks, 47 Ala. 612, in support of the position that a married woman could, upon the ground of coverture alone, recover money voluntarily paid by her as part of the price of property purchased by her. We do not consider the reasoning of that case as sound, nor is it in harmony with the principles of our law upon the rights and powers of married women. In this state the right of a married woman to acquire and hold property, real and personal, either by gift, devise, descent, or purchase, is as absolute as that of her husband. She may, with his consent,...