Ximines v. Smith
| Decision Date | 01 January 1873 |
| Citation | 39 Tex. 49 |
| Parties | M. XIMINES AND W. D. MAYS v. S. S. SMITH ET AL. |
| Court | Texas Supreme Court |
1. A post-nuptial contract will only be enforced when equitable in its terms, and its observance is demanded by the clearest principles of justice.
2. See this case for circumstances under which a post-nuptial contract will not be enforced.
APPEAL from Bexar. Tried below before the Hon. Geo. N. Noonan.
The facts will be found fully stated in the opinion.
Wælder & Upson, for M. Ximines.
Walton & Green, for Mays.
S. G. Newton, for Ursula Ximines.
No impartial mind can investigate this case without being struck forcibly with the manifest injustice which has been done, and yet it may be somewhat difficult for us to point out wherein the law has been violated. Let us first look at a few of the leading facts. Melchoir and Ursula Ximines were man and wife in September, 1860, at which time Melchoir, having inherited certain real property from his mother in the city of San Antonio, sold the same to S. S. Smith for the sum of $2,000 on deferred payments, for which two notes are given payable in one and two years from date. At this time Ursula seems to have become dissatisfied with her spouse, and had determined not to live with him, while on the other hand Melchoir was uxorious, fond of Ursula, and willing to secure her continuance in the marital partnership on terms of bargain and sale, and a post-nuptial contract was thereupon entered into between Melchoir and Ursula to the effect that Melchoir should permit the notes from Smith to be made payable to his wife, who is described in the notes as Dona Ursula Parias de Ximines, but upon the express condition that Dona Ursula should in future lead a “ good life,” and live with him in wedlock, conforming to the duties and responsibilities of the marital contract, to all of which Dona Ursula agreed. But she appears very soon to have lost sight of her marital engagements--her contract with Melchoir--and returned again to her former ways; in other words, she deserted his bed and board, and went to live in the city of San Antonio, west of the San Pedro. Following this desertion by his wife Melchoir caused a notice to be published in the city newspapers, notifying all persons of the fraud which Ursula had practiced upon him, and warning the public against purchasing the S. S. Smith notes. Matters stood in this posture on the fifteenth of February, 1861, when there seems to have been an attempted reconciliation between the parties, and Melchoir made a formal renunciation in writing of his interest in the notes to his wife Ursula in the presence of two witnesses, and this renunciation was filed with the papers in a suit then pending between the parties in the district court of Bexar county; and this renunciation was made, as it appears, upon the agreement of the wife to return to her husband, and live with him as his wife at his home in Wilson county. The wife however refused to live with him, and even warned him against coming to the house where she lived, and she has ever since continued to live apart from him.
It may here be noticed that in the...
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