Harvey v. Hill, Adm’r.
g’^S® © Erg o © ©_« o* 2 o'© s* g g «>© g p.© {3* p3°“, ©S’®0 * & © 3 1 j? 0,2 o^-CQ C Es'g.g* £ <J © s5 cr® ^ pf o g. A
If the husband, under the Spanish law, refused his assent where it was necessary to the disposition by the wife of her paraphernal property, the court could compel him to give it, or might confer sufficient authority on the wife. And there were cases in which the wife’s contracts, without the assent of either judge or husband, were valid.
Any contract within the scope of laws fifty-fourth, fifty-fifth, fifty-sixth, fifty-seventh, fifty-eighth, and fifty-ninth of Toro, made by a married woman, if advantageous to herself, and not prejudicial to her husband, were valid without his assent, for the reason that the consent or license of the husband is not required for the form or solemnity of the act but for his benefit; and if he be not injured, or the contract result to his advantage, the act will bo valid.
A conveyance of the paraphernal property of the wife, made by the husband and wife in 1S37, in presence oí two subscribing witnesses, and acknowledged before a chief justice, ex oficio notary public, to be their act and deed, was held to be valid and binding upon the parlies and their heirs.
It seems that it is not necessary that there should be a motion for a new trial nor a statement of facts where there is a bill of exceptions which discloses facts enough to show that the court excluded competent testimony, the relevancy and materiality of which appear froth the pleadings. (Note 88.)
Error from Matagorda. Action of trespass to try title to a lot in the town of Matagorda, by the defendant in error against the plaintiff in error. The record contained the following bill of exceptions :
“Be it remembered that on the trial of this cause the defendant offered in evidence an instrument purporting to he a deed from plaintiff and his wife, the intestate, covering the locus in quo, of which the fpllowing is a copy, viz:
“Republic oe Texas,) In the county aforesaid, this second day of County of Brazoria, f October, 1837, before me, George B. McKinstry, chief justice and ex officio notary public, came William G. Hill and Eliza M. Hill, his wife, who acknowledged and said that, for and in consideration of the sum of thirty-live thousand dollars, to be paid in the following manner, to wit, two thousand dollars in hand paid, the receipt of which wo acknowledge ; three thousand dollars to be paid on the first of January next, (1S3S;) ten‘thousand dollars to be paid one year after the first of January next, (1S3S;) ten thousand dollars to be paid at two years after the said first of January next, and the remaining ten thousand to be paid in three years from and after tire above-written date of the first of January, (1838;) for all of which said payments (the first excepted) we have received the promissory notes of Simon Mussina, payable as above stated; they have bargained, sold, aliened, released, and conveyed, and do by this act bargain, sell, alien, release, and convey to the said Simon Mussina, his heirs and' assigns, all their right, title, interest, and *297claim 'belonging' to them as the heirs and legal representatives of James E. B. Austin, deceased, in the town and town league [598] of Matagorda, situated upon the bay of Matagorda, at the month of the river Colorado, including, comprising, and composed of all lots, blocks, fractions of blocks or lots, out-tracts, and grand-tracts of the said town of Matagorda belonging to the estate of James E. B. Austin, deceased, except such as may hereafter be reserved; also all interest of whatsoever quantity that may have or hereafter shall revert to the said estate by reason of the non-payment of the purchase-money, according to the terms of all sales of portions of the said town made anterior to this; and they, the. said William G. Hill and Eliza M. Hill, invest the said Simon Mussina with and subrogate him to all their right to sue for and recover possession of the same whenever he may deem them so forfeited as above. The said William G. Hill and Eliza M., his wife, reserving to themselves, and not subject to the above sale or included therein, Marsh Block Ho. 8 and Bluff Block Ho. 13, on Matagorda front of said town, as designated on the map of said town. And the said William G. and Eliza M. Hill concede to the said Simon Mussina the absolute and unconditional right of entering upon and taking possession of the above-sold lots, blocks, &e.; and they further bind themselves, their heirs, representatives, and assigns to warrant and defend said conceded premises to the said Mussina against all and every person claiming or pretending to claim the same.
“ William G. Hill,
“ Eliza M. Hill.
“In presence of—
“HENBT P. BREWSTER,
“Simon Gonzales.”
“ Republic op Texas, 1 Before me, George B. McKinstry, chief justice County of Brazoria. j of the county aforesaid, personally came and appeared William G. Hill and Eliza M. Hill, who signed the foregoing deed of conveyance in my presence, and acknowledged the same to be their act and deed for the purposes therein contained, which I sign with assisting witnesses.
“ Given under my hand this second day of December, A. D. 1837.
“ George B. McKinstry,
Chief Justice County of Brazoria.
“Received for record, 2d January, 1838.
“Recorded 3d January, 1838.
“Thomas Harvey,
“ Clerh (pro tern) and Recorder.
with an offer to show a chain of title under the same to defendant. The plaintiff objected to the introduction of the said instrument in evidence, which said objection was sustained by the court; and to which ruling and decision the defendant by his counsel did then and there except, and tender this his bill of exceptions, which he prays may be signed, sealed, enrolled, and made a part of the record, which is accordingly done.
“ C. W. Buckley, [seal.] ''•Judge Seventh Judicial District.'1'’
The jury returned the following verdict: “We, the jury, find a verdict for plaintiff, and fiud that the suggestion of defendant, of improvements and possession in good faith, is true; and we estimate the value of the land at fifty dollars, and the value of the improvements at two thousand four hundred dollars.”
Judgment accordingly; no motion for a now trial; no statement of facts other than the aforesaid bill of exceptions.
J. Dennison, for plaintiff in error.
The deed, or instrument so offered to be proven in evidence of title in defendant below, was executed previously to the adoption of the common law. In 1S37, and until 18-10, the laws of Spain in reference to marital rights were in force in Texas; and by those laws a sale of *298a wife’s paraphernal property by the husband with her consent during marriage was valid. (O’Connor v. Barre, 3 Hart. K., 455.)
The above-cited ease is in point, and remarkably similar to t.Iie one under discussion. The court say: “ The alienation of such (paraphernal)prop-erty by the husband, with the consent of the wife, was a lawful act. The instrument of sale, should it he thought defective in point of form as a public act, is certainly good as a private one, and is binding upon the parties and their heirs.” It will be seen that the facts upon which the above decision was given took place in Louisiana before the adoption of any eode, and that the opinion is in accordance with the laws of Spain.
Hemphill, Ch. J.
The plaintiff, as administratorof Eliza M. Hill, deceased, sues for the recovery of a lot of land in the town of Matagorda. The defendant offered in evidence a deed from the plaintiff and his wife, the deceased intestate, covering the locus in quo, with an offer to show a chain of title under the same to herself. The plaintiff’s objection to its introduction was sustained; and the only question presented is the alleged error in the exclusion of this instrument of evidence. The grounds for its rejection do not appear in the bill of exceptions ; nor have we been furnished with any argument by defendant in error in explanation of said grounds or in support of the judgment. By the counsel for the appellant, in his brief, it is stated that the refusal to allow the deed to be proven or to be admitted as evidence was on the ground that it did not pass the interest of the wife, not having been executed with the necessary formalities, and was in itself a nullity. This affords some light, but does not indicate the specific formalities supposed to bo wanting.
Prima facie, the deed, under all the laws in force in 1837, the date of its execution, was valid. If it he supposed tiiat the assent of the husband was essential to the validity of contracts made by a married woman in the disposition of her paraphernal property, this is shown by his uniting with her in the execution of the instrument. But the'proposiiion that such assent must appear on the face of the instrument or must always he given, is not without its exceptions. The husband may ratify the act of the wife, done without his assent, by a general or special license, and this before or after the act. The authorization of a wife by the husband is in the nature of an assent; and the laws of Spain requiring this assent to he given to the wife’s contracts or dispositions of her own property assume for their basis that such sales may he injurious to the husband; that he is entitled to the fruits and revenues of the wife’s property for the support of the expenses of the matrimony; and a deprivation of these by her contracts may operate to his prejudice, and his assent must therefore be giveu. But if this he refused in cases where it may he necessary, he may he compelled to give it, or the court may confer sufficient authority on tile wife. And there are cases in which the wife’s contracts, without the assent of either judge or husband, are valid in law. In fact, the result of the opinions of most learned commentators on laws fifty-four, fifty-five, fifty-six, fifty-seven, fifty-eight, and fifty-nine of Toro is, that a contract made by a married woman, without the consent of her husband, or that of the judge in tlie absence of the husband, is valid, provided it be advantageous to the wife; and some commentators lay it down that what is advantageous to the wife is advantageous to the husband, and therefore he cannot complain.
This is a vexed question among Spanish jurists, and'I glance at it merely that the general principle requiring the assent of the husband to the wife’s contracts may not be misunderstood or extended beyond its just limits. From the opinions of Spanish commentators, there can be no doubt that any contract within the scope of the laws cited, made by a married woman, if advantageous to herself and not prejudicial to the husband, would be valid without his assent, for the reason that the consent or license of the husband is not required for the form or solemnity of the act, but for his benefit; and if lie be not injured, or the contract result to his advantage, the act will be valid.
*299Note 88. — Jones v. Cavazos, 29 T., 428.
The subject here touched upon opens a wide field for inquiry. The general rules are subject to qualifications, and they are all discussed iu a masterly manner by Molind, in his commentaries on the laws of Toro.
3STo objection arising, then, from tlie want of assent by the husband, in what other formality is the deed deficient ? It purports to have been executed before a notary public, iu its commencement, but is signed by the parties as a private act. This would not impair its validity, and, if recorded according to law, it must be admitted iu evidence without proof. It is only by a liberal construction that tlie registry acts, at least of 1S36, can be made to embrace the instruments known as authentic and those known as public, in existence at the date of those acts, and authorized by the laws of Spain until their abrogation in 1S40. Private instruments between the parties themselves, without tlie intervention of a notary public, seem to have been principally in (.he contemplation of the Legislature. Provision was made for their record. They were binding between tlie parties, and, on registry or notice, they were made conclusive as against third persons. The law itself on the forms of conveyances may be regarded as modified to a considerable extent by this mode of legislation. But had no such change or modification been effected, yet the instrument would have been valid as between the parties. In the case of O’Connor v. Barre, (3 Mart. R„ 455,) it is said that the alienation of the paraphernal property by the husband with the consent of the wife was a lawful act; and if the instrument of sale be thought defective in point of form as a public act, it is certainly good as a private one, and is binding upon the parties and their heirs.
The judgment is reversed and the cause remanded.
Judgment reversed.