56 W. Va. 244 | W. Va. | 1904
Jacob and Rebecca Raber, bis wife, appeal from a decree of the-circuit court of Ritchie county entered in the chancery suit of Alex. 0. Catón against them. The bill alleges that the plaintiff and defendant, Jacob Raber, acting as agent for his wife, entered into a written contract for the sale of a certain tract of land by Catón to Rebecca Raber, retaining the one-fourth interest in the gas, oil and mineral; the deed to be made by Creed Collins, the holder of the legal title, from whom Oaten purchased; that Collins, on request, executed a deed according to each contract but
The bill contains no allegation of any such arrangement or agreement and the proof is a clear departure therefrom and presents an entirely different case not justified by the allegations. If the plaintiff relied on any such understanding or agreement, it should have been set out in the bill so that the defendants would have had the opportunity to properly plead thereto. The Rabers in their evidence, dispute the making of any such agreement and Mrs. Raber, by the plaintiff's evidence, is in no wise connected 'therewith, except through the alleged agency of her husband. If he fraudulently obtained a deed to her for this property, she being innocent thereof, equity might rescind the sale in toto and restóre the parties to their former condition but it would not -compel her to keep the property and make a deed for the undivided one-fourth oil, gas and mineral interest claimed tc( have been reserved. A wife is not bound by the unauthorized acts of her husband in relation tp her real estate, unless he is guilty of fraud of which she reaps and retains the benefits after notice thereof and thereby ratifies such fraud. Code, chapter 66, sec. tion 6; Dewing v. Hutton, 48 W. Va. 576.
In the present case there is no allegation df fraud and no sufficient- proof thereof if there has been. The omission of the reservation was the voluntary act of the plaintiff without any binding agreement on the part of Mrs. Raber to make him a separate .conveyance therefor. He, to secure the consideration of the sale, •according to his own evidence, took the risk of obtaining a sepa
Reversed.