N. S. Cheek v. D. C. Bellows and Wife, 17 Tex. 613

Lipscomb, J. This was an action brought by appellees against the appellant, for a forcible entry and detainer. There were a verdict and judgment for the plaintiffs in the Justice’s Court, and the case was taken by a certiorari to the District Court, where it was tried and a like verdict and judgment, from which an appeal was taken to this Court.

It appears from the bill of exceptions and statement of facts, that the appellees, husband and wife, were the joint owners of a house and appurtenances in the town of Hallettsville, known as the Hicks house, held by them, by deed . to them jointly ; that the husband, being committed to the jail of the county, under a charge of an assault with an intent to commit murder, had broken the jail and made an escape, and it was not known where he had fled ; that his wife was unable to keep the tavern, and unable to support herself and children, and was in a condition of great destitution ; that under such circumstances, she made and executed a lease to the appellant, of the premises, for one year, for a full, valuable and fair consideration.

On the trial, the appellant admitted that he was in possession ; and attempted to prove that he was in under the lease of the wife, before described, which was rejectedjoy the Court below, on the ground that the wife had no authority to make the lease, to which opinion of the Court the appellant excepted; and this is the only ground of error we propose considering : whether the wife, under such circumstances, could make a valid contract.

As a general rule, the husband has the control and management of both the separate property of the wife and'the community property ; this will not be controverted : but that this rule is subject to exceptions, has been heretofore declared by this Court; that there should be exceptions seems to be the result of of necessity. In the absence of the husband, leaving no one else authorised to take care of the property, the wife has the implied authority to do so. This was ruled in the case of Blanchet v. Dugat. (5 Tex.

R. 455.) In that case, trespass was brought for removing some of the separate property of the wife, in the absence of the husband, under the direction of the wife ; and it was held that the desertion of the wife was a defence to the action. And the doctrine was more fully discussed and emphatically laid down, in the subsequent case of Wright v. Hays, adm’r. (10 Tex. R. 130.) It" cannot be doubted that much hardship would result, if the wife could in no case make a valid contract in relation to her separate property, or the community property, in the absence of her husband.

She and her children are entitled to -a support from the property ; and if the husband is absent, there is no reason nor rule of law, that would prohibit the wife from making a contract to meet the necessites of the case. It would be a strong case, that would permit her to go ‘further. In this case it cannot be pretended that the contract of the wife went beyond the emergency of her condition.

The lease was for only one year, and amply provided for the necessities of herself and her children ; and it cannot be permitted to her, to repudiate the contract by using her husband’s name, and appealing to his rights for him and herself, under such circumstances. We believe, therefore, the 0.ourt erred in rejecting the evidence offered, and for this error the judgment is reversed and the cause remanded. Reversed and remanded.