Stephens v. Matthews' Heirs

• Decision Date: 13 December 1887
• Citation: 6 S.W. 567
• Court: Texas Supreme Court
• Parties: STEPHENS <I>et al.</I> v. MATTHEWS' HEIRS.

6 S.W. 567

STEPHENS et al. v. MATTHEWS' HEIRS.

Supreme Court of Texas.

December 13, 1887.

Appeal from district court, Van Zandt county; FELIX J. McCORD, Judge.

Alex. Burge, for appellants.

STAYTON, J.

J. L. Matthews brought this suit against C. L. Stephens and the heirs of Margaret Love on April 16, 1883. The action is founded on a lost note alleged to have been executed by C. L. Stephens and Margaret Love to J. Russell on February 25, 1876, which was claimed to be due about January 1, 1880, but shown by the proof to have matured January 1, 1877. Matthews became the owner of the note in February, 1882, and it was alleged that it was given to secure a part of the purchase money of a tract of land described in the petition, sold by Russell to C. L. Stephens and Margaret Love, and that on the land an express lien was reserved. If this was so, it was on the face of the note, for the deed from Russell recited a full payment for the land. The petition prayed for the judgment on the note and foreclosure of the lien, or in case this could not be given that the plaintiff have judgment for the land. The petition also alleged that C. L. Stephens and his wife, Mary, who was one of the heirs of Margaret Love, executed a deed to him for their interest in the land July 18, 1881, and under this, title to the land was asserted. J. L. Matthews died, and his heirs made themselves parties plaintiff. The defendants pleaded the statute of limitations to the note, denied the averments of the petition, and also set up matters in avoidance of the deed alleged to have been executed by some of the defendants to J. L. Matthews.

When the deed from C. L. Stephens and Mary Stephens was offered in evidence, it was objected to on the ground that it was not acknowledged by Mary Stephens as deeds are required to be to pass title to the separate estate of a married woman. The deed was not so acknowledged, and as the only claim Mary Stephens held was through inheritance from her mother, whatever that amounted to was her separate estate, and it could not be divested by a deed not acknowledged by her as the statute requires. The deed, however, was admissible against C. L. Stephens, and if not defeated by matters pleaded in avoidance of it, would pass whatever interest Stephens and wife held in community right, and whatever separate right he may have had; the land not being occupied as a homestead at the time that the deed was made. The general objection made to the deed was correctly overruled, as it was admissible for the purpose mentioned, and Mrs. Stephens should have asked an instruction to the affect that the deed could not affect any right she may have inherited from her mother, if she thought the charge given by the court, as to this matter, was not sufficiently explicit.

The court instructed the jury correctly as to the period that would bar a recovery on the note, and informed them that no money judgment could be rendered against the defendants if the jury believed that the note was barred. The verdict...