Steves v. Smith

• Decision Date: 08 January 1908
• Citation: 107 S.W. 141
• Parties: STEVES et al. v. SMITH et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

107 S.W. 141

STEVES et al. v. SMITH et al.^*

Court of Civil Appeals of Texas.

January 8, 1908.

On Rehearing, February 5, 1908.

Appeal from District Court, Bexar County; Edward Dwyer, Judge.

Action by Rafaela R. Smith against Johanne Steves and others. From a judgment for plaintiff, certain defendants appeal. Reversed and rendered. Motion for rehearing overruled.

Webb & Goeth and Shook & Vanderhoeven, for appellants. Carlos Bee and V. M. Clark, for appellees.

NEILL, J.

On December 27, 1905, the appellee Rafaela R. Smith, a feme covert, whose husband, Chas. M. Smith, had deserted her, brought this suit against Johanne Steves, a feme sole, Albert Steves, John W. Tobin, as sheriff of Bexar county, and others, for the purpose of enjoining Tobin as sheriff from placing Albert Steves in possession of certain premises described in her petition which Tobin as sheriff sold to Albert Steves by virtue of an order of sale on December 1, 1905, and to annul and cancel the judgment or decree upon which the order of sale was issued. The grounds upon which the relief was sought are that the property was acquired by herself and husband, the deed being made to him, on May 19, 1892, with the intention and for the purpose of making it their homestead; that on June 8, 1892, her husband borrowed $1,000 from Johanne Steves for which he executed to her his promissory note payable one year after date, and at the same time made a deed of trust on the premises to Ernest Steves to secure Johanne in the payment of the note; that such deed of trust was executed by her husband alone without her knowledge or consent, after the property had been designated as their homestead by making such improvements thereon as evidenced their intention and purpose to occupy it as their home; that the judgment under which the property was sold by the sheriff was recovered on said note on January 20, 1898, against her husband, and as against him plaintiff and others decreed a foreclosure of said deed of trust made by her husband to secure its payment, and ordered the sale of the property in controversy to satisfy it; that, the property being the homestead of her husband's family, the decree of foreclosure thereon was void, for that she was never cited to answer the suit, never waived citation, accepted service, nor appeared and answered in the case, and her purported waiver and acceptance of service, appearing among the papers in the case, being as to her a forgery. The appellants answered by general demurrer and a general denial, and pleaded specially that on June 8, 1892, when the deed of trust was given on the property by Chas. M. Smith, he was unmarried and not entitled to a homestead, and did not occupy the property; that prior to the rendition of the judgment foreclosing said deed of trust plaintiff herein Rafaela R. Smith entered her appearance in the suit by a written memorandum, which was filed with the papers in the cause on April 22, 1897; and that such written memorandum had remained on file ever since that time, and that she did appear in said cause and had notice of said judgment and was bound thereby. Defendants also pleaded the four-year statute of limitation, and also declared on the injunction bond, given by plaintiff in this case, and prayed judgment against her and her sureties thereon for the rental value of the property from the time of the issuance of the injunction up to the date of trial. The case was tried before a jury, and the trial resulted in a verdict and judgment for the plaintiff.

There are two questions presented by the assignments of error to which all others are subsidiary. They are: (1) Was the lot in controversy the homestead of Chas. M. Smith at the time he executed the deed of trust to secure payment of the note which he made to Mrs. Steves for the money she loaned him? (2) Was the decree foreclosing the deed of trust, by virtue of which the property was sold by the sheriff, void as against the plaintiff Rafaela R. Smith? Our consideration of these questions will embrace the assignments of error, and the conclusions of law and fact relating and pertinent thereto. They will be considered in the order stated.

1. One of the questions subsidiary to this one is: Were Chas. M. Smith and Rafaela R. Smith husband and wife when the money was borrowed by the former from Johanne Steves and the deed of trust made by him to secure its payment? For if such relation did not then exist between them the property could not at that time have been their homestead, and there would be an end of the question. It is not claimed by the plaintiff that the rites of matrimony had then been celebrated between them by license in accordance with the statutory requirement. According to her own testimony this was not done until September 28, 1897, at which time their marriage was celebrated, under a license in which her name appears as R. Ramon, by Father Munoz, a priest, at San Fernando Cathedral in San Antonio, Tex. But her claim is that she was then his wife by virtue of a common-law marriage existing between them. The evidence upon this issue is not stated in the brief of either party, and, as it might be contended by appellants that the statement contained in their brief showing a statutory marriage long subsequent to that time was an implied negation of a prior common-law marriage, we have had recourse to the stenographer's record of the testimony upon this issue, and found it sufficient to support a verdict upon it in favor of the appellee's contention. But the contention of appellants is, conceding there was such marriage, that neither Mrs. Steves nor Ernest Steves, the trustee in the deed of trust, had notice of the existence of such relation at the time the money was loaned and the mortgage executed to secure its payment, and that they acted upon a well-founded belief, induced by the statement made them by Chas. M. Smith, that he was at that time unmarried, neither knowing anything to the contrary nor having knowledge of any fact which would induce him or her to believe such statement was false or put them upon further inquiry. We believe that this contention is fully sustained by the uncontroverted evidence. What, then, is the legal effect of the establishment of the facts thus contended for by appellants? This question is fraught with perplexities which should be untangled before answering the principal inquiry under investigation. The relation of husband and wife brought into existence by a common-law marriage is precisely the same as that which attaches to a marriage entered into in conformity to the written law. The rights, privileges, duties, and obligations of the contracting parties are, under the law, the same in either kind of marriage. A different kind of evidence is required to establish the celebration of one from what is essential to prove the other. This can make no difference in the relation of the parties, which is that of husband and wife under either form. The license to marry and the return thereon by the officer or minister celebrating the rites of matrimony between the parties nor the record thereof were intended as notice to the public in the sense that a written instrument is which is required or permitted by the statute to be recorded. These are matters of evidence, primarily intended for the benefit of the parties and those claiming rights growing out of their relation as husband and wife. The record of the license and the return thereon showing that the marriage has been celebrated is not constructive notice to a third party dealing with either spouse of his or her relation to the other; nor can either the husband or wife be prejudiced in his or her rights by the absence of such record, which, from its very nature, must always be absent in the case of a common-law marriage. Is, then, one who deals with a married man, as in this instance, who lends him money and takes a mortgage on real estate, the record title to which appears to be in him, to secure it, charged as a matter of law with knowledge of his marriage? The contention of appellee is that he is charged with such knowledge and deals with the man at his peril. The cases cited (Watkins v. Markham [Tex. Civ. App.] 36 S. W. 145; Brooks v. Sanger Bros. [Tex.] 105 S. W. 37) to support this contention are not in point. In both cases the defendants knew that the plaintiffs were husband and wife, and in the first, that the property in question was their homestead, and in the second the record of title was such as to charge them with knowledge as a matter of law of its homestead character. Here the question is, was Mrs. Steves, who was ignorant of the fact of Smith's marriage, and believed and acted upon his statement made at the time that he was a single man, charged by the law with knowledge of his marriage? We are familiar with the principle that, if one enters into an agreement with a married woman in ignorance of her coverture, he cannot take advantage of such ignorance to defeat the provisions of law incapacitating her from entering into a contract. But we know of no such principle applicable to a man who is sui juris. It may be assumed that a contract may be made with him affecting any property he may own, unless the party contracting with him knows, or is in possession of facts charging him with such knowledge, that his status regarding the property is such as to prevent him from entering into a valid agreement affecting it. In this case it was absolutely essential to plaintiff's recovery to show that Charles M. Smith was her husband at the time he gave the deed of trust on the property in controversy; for, unless he was her husband, the property could not have been their homestead. The defendants Steves were ignorant of the fact of such marriage, and, having been informed by him that he was a single man, were not in possession of any fact that would put them upon further inquiry, or lead to the discovery of the fact of his marriage. The money was...