Womack v. Womack

• Decision Date: 01 January 1852
• Citation: 8 Tex. 397
• Parties: WOMACK, ADM'R, v. WOMACK.
• Court: Texas Supreme Court

8 Tex. 397

WOMACK, ADM'R,

v.WOMACK.

Supreme Court of Texas.

1852.

The statute which prescribes the mode of conveying the wife's property does not expressly declare absolutely void and other mode of conveyance. It seems from its terms to have had but one object in view, and that was to secure the freedom of will and action on the part of the married woman; and where the proof is clear as to the freedem of will on her part, and the transaction commends it in point of equity to the conscience of the court, particularly if the party contracting with the wife cannot be restored to his former position, the conveyance will be sustained notwithstanding the want of a privy examination under the statute. (Note 80.)

The private property of each partner in the matrimonial union must, as a general rule, bear its own charges and expenses.

Any debt which is chargeable exclusively against the separate property of the wife may be discharged by her with the consent of the husband either out of the corpus or profits of said estate, and a conveyance of property for such purpose will be valid without a privy examination under the statute, if made voluntarily without imposition, although the debt should be barred by the statute of limitations at the time of the conveyance.

A married woman may be sued for the recovery of debts incurred for the benefit of her separate property. On proper application the court will order the execution in such cases to be levied first upon the profits, and if they be not sufficient, then upon the corpus of her estate; but without specific directions the levy would be made and carried into effect on the property of the wife in the same mode in which executions against property are usually enforced.

Informality in the execution of a deed of conveyance, as the want of a seal or the privy examination of a married woman, will not exclude it from being offered as evidence of the intention of the parties, but only imposes upon the claimant the necessity of proving all the facts which would entitle him to a conveyance, and the paper with such proof will be sufficient title to support an action or maintain a defense.

Where the plaintiff appealed and the defendant did not, the court said that they would have been better satisfied had the judgment been more favorable to the defendant; but since he had not appealed, it was not essential or necessary that the judgment should be disturbed.

Although an infant may, on coming of age, affirm or disavow a conveyance of real estate made during minority, yet, as a general rule, he must restore the money or other property received as a consideration for said sale.

A debt which is barred by the statute of limitations is a sufficient consideration to support a new engagement or promise. (Note 81.)

Appeal from Harrison. This was an action in the ordinary form for the recovery of a negro slave alleged to have been the property of the deceased intestate. The defendant, after demurring and pleading a general denial, pleaded further to the following effect, viz, that the said Ann Womack was, in her lifetime, about December, 1844, residing in the State of Mississippi with her then lawful husband, Jacob P. Womack; and that, in conjunction with her said husband, she then and there received into their possession, as her separate property, about twenty-five negro slaves for life, by way of inheritance from the estate of a deceased brother; and that on the first day of January thereafter, she and her said husband, being then upon the eve of emigrating to Texas with the said slaves, and needing the assistance of defendant in said emigration, and also his services in overseeing and managing the said slaves of the said Ann in cultivating land upon their arrival in Texas, in consequence of her husband's inability to discharge said duties by reason of his bad health did, on the first day of January, engage and employ this defendant for the purposes aforesaid, for the term of one year then next following from that date, at and for the price or wages of five hundred dollars for the said year, and then and there entered into a written obligation, whereby the said Ann and the said Jacob agreed to pay to this defendant for his services the sum of five hundred dollars, in consideration of which the said defendant served them well and truly for the time of one year from the said first of January, by reason of which the said sum of money became justly due to the defendant; and the defendant further pleaded that the said sum, with the interest, remained due and unpaid on the 8th day of January, 1850, but that the said Ann and her husband, being desirous to pay the same, with the interest, did then bargain, sell, and deliver to the said defendant the negro mentioned in plaintiff's petition, in part payment of said sum of money, and executed their note to the defendant for the balance still due, and that they then and there delivered to the defendant a certain instrument of writing, acknowledging that they had received from the defendant the said sum of four hundred dollars in payment for the said slave, in consideration of which the defendant delivered up their original writing obligatory. The defendant averred that four hundred dollars was a liberal price for said slave, being then about fifty years of age; that, although there was no privy examination of said Ann, as prescribed by statute, yet that the said Ann, in conjunction with her said husband, and with his knowledge and consent, executed the said instrument of writing by which they intended and thought that they had conveyed said slave freely, willingly, and without coercion or persuasion, and that the said Ann did not at any time thereafter show or express any regret at having so done, or any wish to retract the same, but, upon the contrary, the said Ann intended by the execution, in conjunction with her said husband, of the said instrument of writing to convey the said negro slave to the defendant, and did at all times from that day up to her death believe that she and her husband had fully conveyed said slave to the defendant, and was perfectly satisfied at having done so.

The defendant further stated that the amount paid him by the said Ann and her husband was reasonable and proper, and that said services were of benefit to the said Ann, and necessary for the preservation of her separate property; and further, that the said Jacob P. was, on the first day of January, 1845, and has ever since continued to be, notoriously insolvent; that the said Ann, on that day and ever since up to the day of her death, owned a large amount of separate property, and that said services were rendered alone upon the credit of the said Ann, and upon the faith that the said separate property of her, the said Ann, was liable for the payment of the same, all of which was fully known to and duly considered by the said Ann, and her said separate property was intended by her, the said Ann, to be liable for the payment of the same. The defendant prayed that the property be decreed to be vested in him; and if this were refused, that the administrator be required to refund to the defendant the sum of four hundred dollars, the amount of the purchase-money, with interest, & c.

The instrument referred to in defendant's answer, as intended to convey to him title, was expressed as follows:

“Harrison County, Texas. Received four hundred dollars in cash, paid me in hand from E. P. Womack, for a negro boy named Daniel, aged about fifty years. I warrant and defend the title of said negro, and to be sound in mind and body and slave for life, this the 8th January, 1850.

+---------------------------+
                ¦(Signed)¦ANN WOMACK,       ¦
                +--------+------------------¦
                ¦        ¦JACOB P. WOMACK.” ¦
                +---------------------------+
                

The plaintiff specially excepted to the last plea of defendant, and, by way of what was called a replication, alleged several matters not necessary to be particularly noticed. Most of the facts replied had been stated by the defendant in his answer. The plaintiff also pleaded that the moneyed demand as set up by the defendant was barred by the statute of limitations.

On the trial it was admitted “that at the time of the sale of the negro to the defendant the said Ann was a married woman; that she owned said negro in her separate right; that she was not privily examined in regard to said sale, as prescribed by statute; that plaintiff is administrator of Ann; that defendant has possession of the negro, and he is of the value of four hundred dollars, and his hire per year is of the value of one hundred dollars; and it was further admitted that the facts set forth in defendant's special answer are true.”

The exceptions of plaintiff to defendant's answer were overruled; and a jury being waived, it was ordered, adjudged, and decreed that the plaintiff do have and recover of the said defendant possession of the said slave named Daniel upon his, the said plaintiff, paying to the clerk of the court for the use of said defendant the sum of four hundred dollars, and that the said defendant do have and retain possession of said slave until the said sum of four hundred dollars is so paid; and it was further decreed that the defendant do recover of the plaintiff his costs.

The plaintiff moved for a new trial, and on the same being overruled gave notice of appeal to the Supreme Court.

A. H. Wilson, for appellant.

I. The bill of sale under which the defendant held the negro in controversy in this case not being executed as the law requires, Mrs. Womack, the plaintiff's intestate, never parted with her property in the slave, but it remained in her until her death, when it, eo instantati, passed to her representatives. (Dig., art. 174; Callahan v. Patterson, 4 Tex. R., 61.)

The court below was therefore correct in giving judgment in favor of the plaintiff for the negro; but was the court equally correct in overruling the exceptions taken to the special...