Peter Berry, Administrator, and others v. S. P. Donley and others, 26 Tex. 737

Moore, J. The main questions in this case arise upon the ruling of the court below sustaining the plaintiffs’ exceptions, and striking out so much of the answer of the defendants below as alleged constructive notice of their title by the plaintiffs and intervenor, by reason of their possession of the land claimed by them, or from the reference to the title under which they claimed in other deeds duly executed by Mrs. Allen, and properly recorded previous to her sales to the plaintiffs and interveners; and also to so much of said answers as set up and rely upon the statute of limitations of three and five years.

That part of the answer to which the exceptions were sustained showed, at least prima facie, that the defendants claimed under conveyances from Mrs. Allen made subsequently to. the passage of the Act of 1841, regulating the conveyance of property by married women, the execution of which was not acknowledged by her privily and apart from her husband, as required by said statute. The court below, therefore, no doubt regarded, and as we think very properly, these conveyances as of themselves ineffectual to pass to the parties claiming under them either a legal or equitable title to the land.

To hold otherwise would be virtually to repeal the statute. Although the statute does not in express terms say that a married woman may not convey her property in any other manner than it prescribes, yet, as by the common law she could only convey title to her real estate by fine and common recovery, and by it her deed is absolutely void, we think it cannot be questioned that it must be held so here, unless the law prescribing the manner in which her deed may be executed has been substantially followed. In Perry v.

Calhoun’s Lessee, 8 Humph., 556, Judge Turley, delivering the opinion of the court, says: “A feme.covert cannot convey a title to her lands except by a deed executed upon her private examination, made as the law directs ; her signature to a deed without such private examination is a nullity; her deeds of all kinds are void without such examination; it is the examination which gives them validity, and not the signature—the signature being a nullity without such examination. It then necessarily follows, that there is no divestiture of title till such examination be had,” &c.

This seems to "be the general, if not universal construction placed upon similar statutes to ours by the American courts. (See Scott v. Buchanan 11 Humph., 472; Lane v. Dolick, 6 McL., 200; Whitaker v. Blair, 3 J. J. Marsh., 242; Thompson v. Phelps, 6 Dana, 390; Simpson v. Fauntleroy, 8 B. Mon., 178; Matthews v. Puffur, 19 N. H., 348; Worthington v. Young, 6 Ham., Ohio, 314; Jourdan v. Jourdan, 9 S. & R., 268; Lewis v. Walters, 3 H. & McH., 430; 2 Murph., 390; 1 Taz., 139; James v. Fisk, 9 S. & M., 144; Beene v. Randall, 23 Ala., 514; 15 Maine, 304; 5 Day., 492; Knowles v.

McCauley, 10 Paige, 342.) It is not questioned that a married woman may, by her fraudulent acts or representations, by which other parties have been misled, or upon which they have acted, in some cases, be estopped from claiming title, or from the recovery of her separate property. Where a party has been induced to purchase upon the fraudulent admissions or representations that the property belongs to her husband, she will not be permitted to recover it. (Cravens v. Booth, 8 Tex., 243.) But the answer of the defendants does not present such a case. The answer admits that the purchasers knew that the land was Mrs.

Allen’s separate property. The law charged them with the knowledge, and they were no doubt fully aware that the conveyances from Mrs. Allen were invalid, unless her acknow- • ledgment of their execution was taken as prescribed by the statute. There is nothing in the answer from which we can infer that any false representation was made by Mrs. Allen. If the defendants, and those under whom they claimed, were deceived or mistaken as to their title, it was through their own negligence or folly.

That she in fact understood the character of the instruments signed by her, tad was not induced to sign them by the influence of her husband—that she was not under his control, but was, rather than her husband, “the business manager and trader in their marital partnership ”—that for a long time she continued satisfied with her conveyances—or the distance from the proper officers, and the carelessness of parties, cannot surely be supposed sufficient to render instruments not executed as required by law effectual to pass the title of married women.

Hor does the fact that the consideration for the land claimed was used for the support of the wife and her family strengthen the case. If, for such reasons as these, the court could divest the title of a, feme covei't, its discretion, and the opinion of the jury as to the facts, would be virtually substituted in lieu of the provisions of the statute regulating such conveyances. Whether such a course might not prove equally efficacious to protect her rights, while at the same time other parties might he more effectually guarded against frauds, is not the question.

To do so would be the assumption of legislative power. If the defendants below could have established either a legal or equitable title to the land, their possession would have been sufficient to have charged the plaintiffs and intervenor with notice of" such title; (Watkins v. Edwards, 23 Tex., 443;) but as the .instruments under which they claimed vested no interest in them in the land, notice of such claim could not, of course, affect other parties. The exceptions in this particular were, therefore, properly sustained.

The court also properly held, that so much of the defendants’ answer as set up the statute of limitations of three and ten years, presented no valid defence against the plaintiffs’ action. Although the defendants had been long previously in possession, the statute of limitations could not commence to run in their favor until the-sale from Mrs. Allen, under which the plaintiffs claimed. Her disability as a feme covert protected her title against the statute; it was not set in motion until she sold the land. It is not pretended that ten years had elapsed from that time to the commencement of the suit.

And the conveyance from Mrs. Allen, under which the defendants claimed, as we have previously said, passed neither a legal or equitable title, and Could certainly, therefore, constitute neither a title or color of title which would protect the defendants under the 15th

section of the statute.* The same reasons and authorities which sustain the ruling of the-court upon the exceptions to the answer, also show that the defendants below were not entitled to a judgment for them purchase money against the purchasers from Mrs. Allen, as a condition precedent to their recovery. The amount paid by them to her or her husband, was not a charge upon the land. There was no privity between them and the plaintiffs below by which the latter could be made liable.

If the improvements made in good faith by the defendants, shall be taken from them by the plaintiffs, such compensation will be made them as they are entitled to, if any, under the statute for the protection of settlers in good faith. It does not appear that there was any improper delay by the plaintiffs in selecting the land to which they were entitled. If there was, however, it is not a matter of which the plaintiffs in error can complain. It cannot be perceived that the delay caused them any injury.

It cannot be questioned, that the court was authorized to submit special issues to the jury, if it was deemed necessary for the proper disposition of the case. And if the charge given by the court to the jury was not thought by the defendants below to be sufficiently full, or as covering all of the issues in the case, it was their duty to have asked such additional instructions as they believed were necessary for its proper determination. Having failed to do so, they cannot complain.

And if they believed that other issues than those submitted by the court to the jury were necessary to sustain their defence, they should have called the attention of the court to them. If a special instead of a general verdict is found, it is only incumbent upon the plaintiff to see that the facts found are sufficient, under the issues framed by the pleadings, to authorize the judgment. If there are other facts in explanation or rebuttal of those found by the jury, upon which the opposite party relics, it is his duty to invoke the action of the court upon them.

The defendants below admit by their answer that the purchase from Mrs. Allen, under which they claim, was made subsequent to the passage of the Act of February 3d, 1841, prescribing the mode in which married persons may dispose of their separate property. The plaintiffs below were not called upon to establish a fact which was admitted by the defendants, and they cannot now object to the judgment because the jury did not find whether they settled upon the land previously or subsequently to that time.

The finding by the jury of the time when defendants settled upon the land, was only important in view of the pleadings and facts of the case with reference to the judgment that should be rendered in favor of these defendants, who claimed a part of the land, and their co-defendants, Allen and wife, and as against the plaintiffs below with reference to the statute of limitations of five years. In the latter particular, the vagueness of the finding is immaterial; and as regards the former, it does not appear to have occasioned them any injury.

They do not intimate that they have been charged with rents and profits for a longer period than they were on the land. Although the facts present a case apparently of great hardship upon the.plaintiffs in error, it has arisen from their neglect, against which the court has neither the power nor the right to relieve them. There is no error in the judgment,, and it is therefore affirmed. J udgment affirmed,