John G. & Martin Berlin v. Leander Burns and Another, 17 Tex. 532

Hemphill, Ch. J. Suit by appellants against the appellee, on a promissory note for three hundred dollars. The defendant Burns had, without the consent of his wife, contracted to sell to the Berlins two hundred and eighty-four and a half acres of land, including his homestead, and gave his bond for title. The Berlins tendered the purchase money, and Burns executed and tendered a deed with his own signature alone, his wife refusing to join.

The Beilins refused to accept the deed, and the parties having agreed to cancel the contract, Burns, with whom was joined Lane as surety, gave the promissory note sued on as a consideration for the rescission. The defendants, among other matters, pleaded that the original contract being for the sale of the homestead without the consent of the wife, was void ; that the defendant Burns was an illiterate man, not being able to read or write, and was de ceived and defrauded by plaintiffs.

At the request of the plaintiffs, the Court charged the jury that a contract and bond for title by the husband, for the sale of the homestead, without the consent of the wife, is not void ; that the cancelling of a bond, given as described, ip a good con. sideration for a note ; that if Burns had not the power, without the consent of his wife, to convey the homestead including two hundred acres of the tract, he might have conveyed the remainder ; that if the defendants executed the note by way of compromise of the difficulty, it was a good contract, unless the proof shows that the plaintiff used unlawful means to procure the note.

At the request of defendants, the Court charged that a contract in violation of law, is void ; that the homestead cannot be sold by the husband against the consent of the wife ; that if the jury believe from the evidence, the note was without consideration, they will find for defendants. The fourth instruction was to the effect, that exemption of a homestead from forced sale included every species of alienation which could disturb the family in the quiet enjoyment of their home.

The fifth instruction asked by defendants, viz : that the entire contract is void, if part of the consideration be prohibited by a Statute, was refused. The Court, of its own motion, instructed the jury, that if they believed from the evidence, that the defendant Burns had been overreached and defrauded in the contract, the bond' for title was void and so also was the note given in consideration for the cancelling of said bond. There was judgment for defendants, and plaintiffs appealed, assigning for error the giving the charges asked by defendant, and the one given by the Court on its own motion. 2nd.

The verdict was contrary to law and evidence. 3rd. The refusal of a new trial. It will not be necessary to comment specially upon the charges asked and given for defendants. As legal propositions they are generally sound, and this is admitted by appellants ; but the objection is that they had no application to the case, and consequently tended to mislead the jury. But it does not appear such could have been the result, for we must presume they were considered by the jury in connexion with the instructions for the plaintiffs, which charged the law at every point in their favor.

For instance, the propositions that a contract in violation of law is void, and that the homestead cannot be sold by the husband contrary to the consent of the wife, were modified by the instructions for plaintiffs that a contract for the sale of the homestead, without the consent of the wife, and a bond for title was not void. &c., &c.

But without considering the instructions farther, or comparing them to ascertain whether possible prejudice might have resulted to the plaintiffs, we are of opinion that the judgment on the merits as disclosed by the pleadings and the evidence, was right: and that there was no such error as would entitle the plaintiffs to a reversal. The contract for the sale of the homestead was made without the consent of the wife, and she still refused her assent at the attempted execution of the conveyance. That the land was the homestead of the defendant was well known to the plaintiffs.

Now, though a contract for the sale of a homestead by the husband, without the consent of the wife, may not in all respects be void, as for instance where after such contract the land is abandoned and another homestead is selected by the husband and wife, there being no necessity or demand that the proceeds of the sale of the first should be applied to the purchase of the second homestead, the contract for the sale by the husband alone, might, under such circumstances, be enforced, yet no contract for the sale of land which continues to be the homestead of the family, can be enforced without or against the consent of the wife ; her consent is a primary element to the validity of sales of the homestead.

This must be freely given, without undue influence by the husband or others.

The policy of the law provides the homestead as a shelter for the family, in the enjoyment of which the wife cannot be disturbed without her own assent, and any engagement or contract binding the husband expressly or by implication to procure such assent, is obnoxious to such policy, and not binding upon him ; consequently contracts for the sale of the homestead by the husband without the consent of the wife, though not utterly void under all contingencies, yet have no binding obligation on the husband, in cases where the wife refuses her assent to such sales.

In contemplation of law no damage results to the vendee, from the breach of such contracts ; the covenant so far as it imposes a duty on the husband to procure the assent of the wife, is contrary to law, and the supposed damage arising from its breach, is no valid consideration for a subsequent contract, whether by way of compromise or as payment in full for such damages. There was no valid consideration, then, for the note in this case ; consequently there was no error in the judgment for the defendant.

The fact that the land exceeded by eighty-four and one half acres the amount of the homestead, does not materially change the law of the case. It is very evident that the contract was entire, and that the consideration of the note was the rescission of the contract for the sale of the whole tract, and not of the excess beyond the amount of the homestead.

Had the excess beyond the amount of the homestead been large ; had it formed a prominent object in the contract for sale, or been of paramount importance, and the note been given in consideration of the rescission of the contract for the sale of this portion of the land, then the judgment should have been for plaintiffs. But as the facts were to the contrary, the judgment was properly for defendants and it is therefore affirmed. Judgment affirmed.