Welch v. Rice

• Decision Date: 31 January 1869
• Citation: Welch v. Rice, 31 Tex. 688 (Tex. 1869)
• Parties: JOSEPH WELCH v. SUNY RICE.
• Court: Texas Supreme Court

31 Tex. 688

JOSEPH WELCH

v.SUNY RICE.

Supreme Court of Texas.

January, 1869.

The constitutional provision, that the owner of a homestead, if a married man, shall not be permitted to alienate it, without the consent of the wife, in the way pointed out by the legislature, is designed for the protection of the wife, inasmuch as by her consent, in the manner pointed out by the legislature, the homestead can be conveyed as well as any other property. Pas. Dig. art. VII, sec. 22, note 198, p. 65; art. 1003, note 427.

The wife's general disclaimers in conversation of any interest in the homestead, her agreement to voluntarily separate from her husband, going away, and allowing him to remain upon the homestead until he sold it and abandoned the country (she never having signed a deed and made her separate acknowledgment, as the law directs), did not preclude her right to recover against one who knew all the circumstances. Young v. Van Benthuysen, 30 Tex. 732; 30 Tex. 762.

The husband and wife cannot by their own or united will dissolve their marital relations; the wife cannot sell the homestead to the husband; for while the homestead is his, it remains hers; and if the husband sell without the wife joining, in the manner pointed out by the statute, his sale is void. Pas. Dig. art. 1003, note 427.

APPEAL from Robertson. The case was tried before Hon. N. H. DAVIS, one of the district judges.

The plaintiff, a married woman, sued for the homestead, which the defendant had purchased from the husband over three years before the commencement of the suit. The wife had not joined in the conveyance. But the defendant relied upon the fact that the parties had agreed upon a separation, each taking some property; and that, after the separation become public and notorious, the husband sold the homestead to the defendant, and then abandoned the county and had never returned. The wife acquired no new homestead, but after the separation lived about among her friends. So that the defense amounted to a plea of separation between husband and wife in consequence of domestic disagreements, a sale by the husband after the separation, and the tacit acquiescence of the wife in the sale; for there was no proof of any direct agency by the wife. The wife was forced to leave her husband.

The charge of the judge in effect disregarded the defense, and instructed the jury to find for the plaintiff to the extent of two hundred acres, it being a country homestead. The jury so found, and there was a corresponding judgment, from which the defendant appealed.

Stewart & Barziza, for appellant.

Thomas P. Aycock, for appellee.

MORRILL, C. J.

The principal facts in this case are, that the appellee, Mrs. Rice, and her husband resided upon the land in controversy previous to 1863, which was the homestead of the family; that the parties did not live together in harmony, and that they agreed to separate and live apart and divide the property, and carried the agreement into execution, the husband retaining the homestead, which he sold to plaintiff in error; that Mrs. Rice had no settled home after the separation, or any homestead; that she disclaimed any ownership of the place when her husband sold it; that a few years ago the husband left the state, and it is not known that he is living. Mrs. Rice brought suit for the land and recovered it in the district court, and the only question is whether the facts authorized the recovery.

The constitutional provision that the owner of a homestead, if a married man, shall not be permitted to alienate it without the consent of the wife, in the way pointed out by the legislature, is designed for the protection of the wife, inasmuch as by her consent, in the manner pointed out by the legislature, the homestead can be conveyed as well as any other property. But the wife cannot invoke this constitutional provision for any other purpose than for what it was intended to subserve; at least she cannot use it as a means to defraud others.

Though the constitution and laws point out the method of the conveyance of a homestead, and though the statute also directs the registration of conveyances of real estate, in order that all persons may be able to act advisedly thereon and have proper information relative to the claims thereto of any supposed owner or cl...