Wright v. Hays' Adm'r.

• Citation: 10 Tex. 130
• Parties: WRIGHT v. HAYS' ADM'R.
• Decision Date: 01 January 1853
• Court: Supreme Court of Texas

10 Tex. 130

WRIGHT

v.HAYS' ADM'R.

Supreme Court of Texas.

1853.

The rights of the husband and wife to property acquired during coverture are precisely equivalent; the only difference being that he has the management and control of it, for the benefit of both.

Where the husband leaves his home and is absent for several years, the wife acquires a right to manage, control, and dispose of the common property, as well as her separate property. (Note 24.)

Where the husband was absent for nearly six years, and in the meantime the wife had purchased a tract of land and made a deed of gift of a portion of it to her child by a former husband, the deed of gift was sustained.

The act respecting the privy examination of a married woman does not apply where, on account of the absence of the husband, she is invested with the power of disposition over the common and her separate property.

Appeal from Victoria. March 30th, 1843, action of trespass to try title by John D. Wright and Margaret T. Wright, his wife, against Peter N. Hays. The facts were that the plaintiffs were married in Victoria, in 1827 or 1828; that in 1836, the husband went to the Rio Grande, where he remained until about Christmas, 1841, when he returned to Victoria, where he resided with his wife at the time of the trial; that during his absence, in 1838, a deed was made by one Jose Maria Escalara, to Margaret T. Wright, for a half league of land including the locus in quo; that in July, 1841, Margaret T. Wright, in consideration of the love and affection which she bore her son Peter N. Hays, the defendant, made him a deed of gift to six hundred and forty acres of land out of said half league. This was the land in controversy. There was no proof that the plaintiff John D. went to the Rio Grande without the consent of his wife, nor with a view to abandon or desert her; one witness said he understood he went after a runaway servant; another, that he went to avoid an old Mississippi debt; another, who went with him, that Wright never told him what he went to the Rio Grande for; that he had never asked him what he went for; that “we all knew what he went for.” It was in proof that Mrs. Wright had a general power of attorney from her husband during his absence; that she had a pretty large stock of cattle; that she had plenty to live on; and that she several times visited her husband during his absence. Wright, while absent resided on this side of the Rio Grande.

There was a verdict and judgment for the defendant. On the trial the deed from M. T. Wright to Peter N. Hays, when offered in evidence, was objected to; but the objection was overruled, and the plaintiffs excepted.

J. N. Mitchell, for appellants.

A. S. Cunningham, for appellee.

HEMPHILL, CH. J.

The only question in this cause is, as to the competency of the wife of the appellant to make the deed of gift to the land in controversy. She had been abandoned for more than five years previously by her husband, who had sought an asylum on the Rio Grande, under the protection and jurisdiction, de facto, of the enemy. During that period she remained without aid or assistance from him, burthened with the charge of taking care of herself and family-- managing the business herself, and bringing suits in her own name, &c. There was evidence that she had a large stock of cattle, and that she was never in want; but there was no proof as to the time at which these cattle were acquired--whether after the husband's retreat to the Rio Grande or before--or whether they were common property, or the property of the husband or of the wife. There was evidence also that she had a power of attorney from her husband to sell all his lands. It was said, also, that she had visited her husband on the Rio Grande; but there was no proof that he had supplied her with any funds. The title to the property of which the lands embraced in the deed of gift formed a part, was made to the wife in her own name in 1838, about two years after the absence of the husband, and nearly four previous to his return--the title reciting that the purchase money was paid by the wife.

Did the wife under such circumstances have the power of disposing of such property as if she had been a feme sole? The wife by marriage is placed under many disabilities. She is divested of the power of free disposition of her own property, unless joined in the conveyance by her husband and acknowledged before an officer that it was made with her consent. Her separate property is under his management; and he alone has the power to dispose of the common stock of gains. And, generally, she has no power to contract or be bound by contracts, unless as the agent or through the assent of the husband--contracts for necessaries for herself and children and the benefit of her separate property excepted. She cannot sue for her own effects, unless joined with her husband; or on his failure under the authority of the court.

The husband has many and important rights over the person and property of the wife. He manages her property with its incidental rights and advantages. He exclusively can dispose during coverture of the common stock of gains, and he is subject to the corresponding responsibility of supporting the wife and family, and of defraying the charges incident to matrimony.

This marriage being contracted under the laws of Spain, and those laws operating during the greater portion of the absence of the husband, it may be proper to state the incidents of marriage, as affecting property, under those laws. By them the husband had the free disposition (if not made in fraud of the wife) of all the community property; and the proceeds of the separate property of both the wife and of the husband fell into and became a portion...