34 S.W. 303 | Tex. App. | 1896
This suit was instituted in the District Court of Cherokee County to recover of appellants the value of certain lands sold, as alleged, to appellees by appellants, and of the right to which appellees had been divested by decree of the District Court of the United States for the Eastern District of Texas. The petition alleged that defendants, with the exception of J.J. Spain, were nonresidents of Cherokee County, and gave the residence of each. The averments, upon which the plaintiffs based their suit, were substantially: that the defendants, Jeff Chaison and his wife, Clara, W.H. Baldwin and Harriet P. Sergeant, by deed of conveyance with covenant of warranty, sold to defendant Spain one hundred and sixty acres of the Ann Duncan league of land, situated in said county, for the sum of two hundred and seven dollars; and which land the said Spain, for the consideration of $1600, afterwards conveyed to plaintiffs with general warranty; *111 that subsequent to plaintiffs' purchase from Spain, to-wit, on the 21st of July, 1887, for the consideration of $2250, they purchased under deed of conveyance, with covenants of warranty, all the "right, title and interest" of said Chaison and wife, and the said W.H. Baldwin and Harriet P. Sergeant, in and to the said Duncan league of land; that the number of acres intended to be sold by said vendors, and to be bought by plaintiffs in said league, under said conveyance, were 642; and by decree of the United States District Court for Eastern Texas plaintiffs had been divested of title to, and ejected from 17-20th of said lands. Defendants, Chaison and wife, Baldwin and Sergeant, filed special pleas to the jurisdiction of the court, averring that they were nonresidents of Cherokee County, and giving their respective residences; and averred further that they had executed no contract to be performed in the county of Cherokee. This plea being overruled, the said defendants filed general and special demurrers to the petition which, besides other issues that need not be here recited, again presented the question of the jurisdiction of the court over their persons, and the right of the plaintiff to sue them in the County of Cherokee; and they also filed plea of general denial; and defendant, Clara Chaison, pleaded coverture.
The cause was tried by the judge of the court without a jury, and judgment was rendered for plaintiffs against defendant Jeff Chaison alone for the sum claimed by them in virtue of the sale of Spain, by deed executed by Chaison, as attorney in fact for his wife, and defendants, Baldwin and Sergeant; and against the said Baldwin, Sergeant and Jeff Chaison for the sum claimed by plaintiffs in virtue of the deed of conveyance, executed by Chaison and wife, Baldwin and Sergeant, for all their right, title and interest in and to said Duncan league of land, to plaintiffs. The defendants all, except defendant Spain, excepted to the judgment, and appealed therefrom to this court. There are several questions presented by the appellants under their assignments, which, under our view of the law and our disposition of the case, we will neither discuss nor determine.
The court correctly held that no recovery could be had by plaintiffs against defendant Clara Chaison. The deed to defendant Spain, as to her, was void; because it was not executed in accordance with article 559, Revised Statutes. The separate land of the wife cannot be conveyed by the husband, under power of attorney executed to him by the wife. Cannon v. Boutwell,
The appellees contend that the court properly overruled appellants' exceptions to the petition raising the question of venue, and properly sustained plaintiffs' exceptions to appellants' plea of privilege. It is well settled that to authorize a suit against a defendant in a county other than the one in which he has his domicile, under the fourth exception to article 1198 of the Revised Statutes, his co-defendant must be a necessary, as well as a proper party. Holloway v. Blum,
Reversed and rendered.
Writ of error refused.