W. L. & Mary T. Edwards v. Mary E. Dismukes, 53 Tex. 605

Gould, Associate Judge. 1. Appellants’ second and fifth assignments of error assume that there was no evidence of notice to them that the husband of appellee was, under her instructions to him, without authority to deliver to them the deed which he and she had executed, and which she had separately acknowledged and entrusted to him.

If, however, we look beyond the bill of exceptions to the charge of the court, we find instructions to the jury, that the delivery of the deed by the husband would pass the title to appellants, notwithstanding it was made in violation of his instructions, if the appellants had no notice of such instructions.

Looking to the evidence and considering the terms of the alleged compromise, even as stated by appellants, we are of opinion that there was evidence tending to charge appellants with notice that the delivery of the deed was premature and unauthorized, and that it cannot be said that there was no evidence of notice of the instructions. Although the bill of exceptions might well have explained that the court admitted evidence of the instructions, because there was evidence of notice, that fact amply appears from the record, and must be considered a sufficient justification of the ruling complained of.

If Edwards and wife received the deed, although privily acknowledged by Mrs. Dismukes, having notice that its delivery was unauthorized, it does not seems to be denied by appellants that the fact, if established by competent evidence, would entitle Mrs. Dismukes to relief. They object, however, that Mrs. Dismukes was not competent to testify as to what instructions she gave her husband, or as to a fraud practiced on her by her husband.

We remark that the husband was not a party to the suit at the trial; that the communication from the wife to the husband does not appear to have been of a confidential nature; and that we know of no rule of law which forbids the wife, in support of her rights against a third party, from testifying as to fraudulent acts of her husband. 2. The charge asked and refused on the subject of notice had been substantially given, and the refusal to repeat it was not error. 3.

Dismukes, the husband, having refused to join in the suit, was not a necessary party, and the dismissal of the suit as to him did not operate a discontinuance. McIntyre v. Chappell, 2 Tex., 378. The judgment is affirmed. [Opinion delivered November 25, 1879.]