Webb v. Webb

• Decision Date: 16 November 1949
• Docket Number: No. A-2303.,A-2303.
• Citation: 224 S.W.2d 868
• Parties: WEBB v. WEBB.
• Court: Texas Supreme Court

Page 868

224 S.W.2d 868

WEBB v. WEBB.

No. A-2303.

Supreme Court of Texas.

November 16, 1949.

Rehearing Denied December 21, 1949.

Farrow & Johnson, Carrizo Springs, Urban Farrow, Carrizo Springs, for petitioner.

Petry, Jeffrey & Dean, Carrizo Springs, B. L. Jeffrey, Harold J. Dean, Carrizo Springs, for respondent.

GARWOOD, Justice.

G. A. Webb asks relief here against the unfavorable judgment of both courts below in his action to recover from his former wife, respondent Sarah Alberta Webb, a tract of land in Dimmit County. While petitioner Webb asserts title under the statute of limitations, he relies principally upon a deed of March 3, 1917 in his favor executed and acknowledged by respondent Mrs. Webb as if a feme sole. On the date of the conveyance the couple were not yet divorced, but Mrs. Webb had procured in California an interlocutory decree of divorce which was entered almost a year before and actually became final a week after she executed the deed. The only ground of the divorce was the alleged abandonment of Mrs. Webb by Mr. Webb since a date over three years prior to the date of the deed. On the trial of the instant case, Mr. Webb testified without equivocation, contradiction or impeachment that the couple had been permanently separated during all the time set out in the divorce proceedings and had never since been reunited. The land was the separate property of Mrs. Webb and not a homestead. Evidently both parties were present together in Arizona when the deed was executed, so that, if they had chosen to do so they could have easily effectuated the transaction by the time-honored device of a deed to a trustee signed by both spouses and privily acknowledged by Mrs. Webb in accordance with Articles 1299, 4614, 6605 and 6608, Vernon's Annotated Civil Statutes, and a subsequent conveyance by the trustee to Mr. Webb. Riley v. Wilson, 86 Tex. 240, 24 S.W. 394.

The trial court withdrew the case from the jury and rendered judgment in favor of Mrs. Webb, which was affirmed by the Court of Civil Appeals. 223 S.W.2d 31. The latter approved what was evidently the trial court's conclusion that there was no evidence to sustain petitioner's claim of limitation title and further held that the facts concerning the abandonment of Mrs. Webb did not give her the authority to convey as a feme sole recognized in decisions such as Wright v. Hays' Adm'r, 10 Tex. 130, 60 Am.Dec. 200; Walker v. Stringfellow, 30 Tex. 570; Ann Berta Lodge v. Leverton, 42 Tex. 18; Clements v. Ewing, 71 Tex. 370, 9 S.W. 312; Bennett v. Montgomery, 3 Tex.Civ.App. 222, 22 S.W. 115; Moss v. Ingram, TexCiv.App., 239 S.W. 1029, writ ref.; Masterson v. Bouldin, Tex.Civ.App., 151 S.W.2d 301, writ ref.

In opposition to this latter view, we have concluded that the deed of Mrs. Webb is valid and will accordingly discuss only this aspect of the case, since our holding necessarily entails judgment for petitioner, Mr. Webb, regardless of the merits of his alternative claim of title by limitation.

The evidence of abandonment of Mrs. Webb — or of a definite "separation" of the parties — is quite conclusive, and we do not understand the holding of the Court of Civil Appeals to rest on any doubt to the contrary. The reasoning seems, rather, that the rule denying application of Article 1299 and related provisions, supra, to a situation in which the wife has been abandoned, has itself no application when the abandoning husband is present at the execution of the deed in controversy. This appears to us as an overly narrow view of the relevant decisions. The latter are indeed largely cases in which the husband had left the wife and was still away when the deed was executed; some of them such as Wright v. Hays, supra, seeming to emphasize this fact of physical absence. But that case and others also suggest the more general thought that applicability of the statute presupposes an existence of a normal marriage relationship. In the Court of Civil Appeals decision of Bennett v. Montgomery, supra, which has never apparently been overruled or criticized, the wife abandoned the husband and was held thereby in effect to have given herself the power to convey as a feme sole by her own improper conduct, the court evidently considering the statutory limitations not to apply where the spouses are "separated" in the sense that they are not living together as man and wife and have no apparent intention so to live at any particular future time. Walker v. Stringfellow, supra, seems to be a similar holding. See also Moss v. Ingram, supra, 239 S.W. at page 1033; Speer, Law of Marital Rights in Texas, 3rd Ed., § 228. The case of Carothers v. McNese, 43 Tex. 221, 224, indicates that the rule of Wright v. Hays, supra, would not apply "on the bare fact of `the long and necessary absence of her husband from the State in the Confederate Army'"; the inference being that the de facto existence or nonexistence of the marriage relationship is what determines the matter, and that the physical absence — or presence — of the husband at the time of the wife's conveyance or contract is not necessarily material. See also Sorrel v. Clayton, 42 Tex. 188. In Masterson v. Bouldin, supra , it was said: "Assuming that Mrs. Masterson and her husband were permanently separated, her capacity to convey her separate property without the joinder of her husband was not inhibited as the effect of R.S.1925, Art. 4617, as amended in 1937, Vernon's Annotated Civil Statutes, Art. 4617," (the statute mentioned being that authorizing the wife to apply to the court for permission to convey as a feme sole). Clements v. Ewing, supra, points out that, in the case of the wife's separate property, the validity of her conveyance without joinder of the husband does not depend upon a showing of necessity for the conveyance. See also Ross v. Tide Water Oil Co., 136 Tex. 66, 145 S.W.2d 1089.

Under our pre-1913 statutory policy of giving the husband the sole management of the wife's separate property "during marriage" Art. 4621, R.C.S.1911, it has been held on evidence amounting to little more than a case of mutual voluntary "separation", that the facts deprived the husband of the power to control the wife's bank account, which he would have enjoyed but for the separation. Waggoner Bank & Trust Co. v. Warren, 111 Tex. 318, 234 S.W. 387. By analogy, a mere de facto cessation of the marriage relationship or "separation" is sufficient to render Art. 1299 and...