78 Tex. 494 | Tex. | 1890
—This action was brought by C. M. and Haney "Houston, husband and wife, to recover the land in controversy in the separate right of the wife.
Mrs. Houston died a short time before the trial, and C. M. Houston suggested her death and stated that he had been appointed temporary administrator of her estate, and that in the appointment he was empowered to prosecute this action.
It is insisted that a temporary administrator, notwithstanding the court appointing him may have authorized him to prosecute an action such as this, has no power to do so.
The appointment is required to “ define the powers conferred," and we see no reason to doubt that power to prosecute such an action as this, or to perform any other-act that a regular administrator might perform, may be conferred on a temporary administrator when in the opinion of the court or judge making the appointment the exercise of such a power temporarily is necessary for the preservation or welfare of the estate. Eev. Stats., arts. 1877, 1878, 1882.
That it was not necessary that the suggestion of death of Mrs. Houston or any step taken by the temporary administrator should be through an amended petition is too clear.
The land in controversy came to C. M. Houston through a regular chain of tranfer from the sovereignty of the soil, and he conveyed it to his wife during coverture through a deed which on its face showed that it was a gift. This made the property the separate estate of Mrs. Houston, and there was no necessity that he should have expressed in the deed his intention so to make it. His testimony given on the trial as to his purpose in making the deed might have been excluded, hut its admission in no way could have affected the case. The deed executed by him made the land the separate property of his wife, and the court correctly so held.
Appellant claims through a bond for title purporting to have been executed by O. M. and Haney Houston after the property was conveyed to her by her husband, but that instrument was not so authenticated by the officer taking her acknowledgement as to make if operative against her; consequently she parted with no right through it, if it were conceded that such an agreement properly acknowledged by a married woman would bind her to convey.
Appellant in his pleadings alleged that Mrs. Houston, under the surroundings required by law, made the necessary acknowledgment before the officer who undertook to authenticate the instrument, and on the trial placed that officer on the stand to prove these facts, but in that he failed.
The certificate was fatally defective, and the evidence of the officer who made it did not show that the facts would have authorized him to make one sufficient. Ruleman v. Pritchett, 56 Texas, 482.
There were no facts shown which'could estop Mrs. Houston, and the court did not err in refusing to give charges requested upon that subject nor in refusing to give any other charges requested by appellant.
In relation to the rights of the parties growing out of improvements and occupation of the land, it is conceded that the charge was in accordance with the rules laid down in Bitner v. Land Company, 67 Texas, 341; but it is insisted that that decision is wrong, and that a right vested under a law may be divested by a subsequent law.
There are many assignments of error, but they all relate to the questions considered, in so far as they relate to the rights existing between appellant and the estate of Mrs. Houston.
The paper purporting to be a bond for title to the land in controversy was to W. M. Payne and made sometime in 1861.
On November of that year Payne transferred his right through the bond to a person through whom appellant claims, and on the day that transfer was made O. M. Houston and another made and signed an endorsement on that paper as follows:
“We agree to go security thatW. M. Payne will comply with the above bond. November 1, 1861.
“M. D. Bullion,
“0. M. Houston.”
This had reference to Payne’s complying with his agreement to render the services or pay the sum of money agreed to be paid for the land, and in this action appellant, a remote vendee of Payne, attempted to base a cause of action against 0. M. Houston, and to assert it in this suit.
The court below did not err in refusing to submit any issue to the jury upon this subject.
If appellant has cause of action against C. M. Houston by reason of that endorsement, which we do not wish to be understood as holding, that can not affect his right, as the representative of his deceased wife’s estate, to recover the land in oontróversy, nor can such a claim be set up in this action against 0. M. Houston.
There is no error in the judgment, and it will be affirmed.
Affirmed.
Delivered November 14, 1890.
