Cross v. Everts
28 Tex. 523
Tex.
1866
Check Treatment
Coke, J.

—The ruling of the court below sustaining the demurrer to the petition is assigned as error.

For the purpose of considering the propriety of this ruling, the facts properly set out and plead in this petition are to be taken as true. The petition alleges “ an agreement or contract for the mutual exchange of lands,” entered into between the plaintiff and defendants, the details of which are alleged. It is not alleged whether this contract or agreement is in writing or not.

It is well settled that the statute of frauds has made no alteration in the rules of pleadings, and that it is not necessary to state in the petition that the contract or agreement for the sale of lands is in writing; and when such contract or agreement is declared upon generally, without stating whether it is in writing or not, it will be presumed to be in writing. The statute simply prescribes as a rule of evidence that, in all cases where such contracts are sought to be enforced, oral proof shall not be received, but that they must be established by written evidence. (Story’s *532Eq. Plead., § 762; James v. Fulcrod, 5 Tex., 512; Brock v. Jones, 8 Tex., 78; Dawson v. Miller, 20 Tex., 174; Dogget v. Patterson, 18 Tex, 162; Adkins v. Wilson, 12 Tex., 201; Browne on Stat. Frauds, 477,481.)

The legal effect of the demurrer, then, is to admit the existence in writing of the contract or agreement set out in the petition. But it appears on the face of the petition that the land claimed in this suit, by virtue of this agreement, is the tract on which the defendants reside and have their homestead, and there is no allegation in the petition that Mrs. Everts, the wife, executed the agreement or contract in the mode prescribed by the statute, so as to be binding on her. (O. & W. Dig., Art. 207.)

It is well settled, that a compliance with the requirements of this statute is indispensable to the alienation of the wife’s separate estate or of her homestead. (Callahan v. Patterson, 4 Tex., 62; Green v. Chandler, Galveston term, 13th January, 1860, [25 Tex., 148;] Nichols v. Gordon, Austin term, 10th November, 1860, [25 Tex. Supp., 109;] Roy v. Bremond, 22 Tex., 628.)

Without such compliance, her deed, signed, attested, and delivered, is as though it had never been written, is mere waste paper, is not her act and deed. (Lessee of Christian Good v. Elizabeth Zercher, 12 Ohio, 364; Perry v. Calhoun, 8 Humph., 556.)

The privy examination, acknowledgment, and declaration before the officer, as required by the statute, is the essence and foundation of the obligation of her deed. Facts so fundamental in fixing the liability of the appellees and the rights of the appellant, if they exist, should be averred. They cannot be supplied by presumption or inference.

It follows, that the agreement or contract declared on, not being executed by Mrs. Everts in the mode prescribed by the statute, is absolutely null and void as regards Mrs. *533Everts, the wife, and that it vests no shadow of right in the appellant to her homestead tract of land, for which he sues in this action.

But it is insisted, that the facts stated in the petition show an abandonment of the homestead on the land in question by the defendants, and the acquisition of a new homestead on the land alleged to be acquired by the exchange from the plaintiff, and that consequently no question arises as to the proper execution of the contract or agreement by Mrs. Everts. We are of the opinion that this position is not well taken.

It is alleged in the petition that, in pursuance of this agreement for exchange of lands, the appellant was admitted into partial possession of the land claimed; but it is admitted that the appellees continued to reside thereon, and have never ceased to do so; and the conclusion that they received or accepted the land, a deed to which was tendered them by the appellant, is distinctly repelled.

Every man must have a domicil somewhere, and can have but one. The more correct principle, says Judge Story, is, that the original domicil is not gone until a new one is actually acquired, facto et animo. (Story’s Conf. of Laws, § 47.)

The rule to be extracted from the cases of Shepherd v. Cassidy, 20 Tex., 29, and Ganhenant v. Cockerell, 20 Tex., 96, where this question was discussed and decided by our predecessors in this court, and which is believed to be the correct one, is, that if it, be admitted that an old homestead may, in opposition to this general rule laid down by Judge Story with regard to the change of domicil, be abandoned before the acquisition of a new one, it can only be on the most clear, conclusive, and undeniable evidence of abandonment of the homestead. Do the facts in this case bring it within this rule ? We think most clearly not. On the contrary, it appears indisputably, from the allegations of the petition, that, while an intention to leave the old, and *534acquire a new, homestead may have existed for a while in the minds of the appellees before any act was done to consummate it, that intention was abandoned, and succeeded by a determination to retain the old homestead.

It is also urged in the argument of appellants’ counsel, that the facts alleged in the petition establish the commission of a fraud by the appellees, for which Mrs. Everts, the wife, may be held responsible in damages. And we are referred to the cases of O’Brien v. Hilburn, 9 Tex., 297; Howard v. North, 5 Tex., 290, and Cravens v. Booth, 8 Tex., 243, as authorities to sustain this position. It is so plain that the facts of this case do not bring it within the principle laid down in these cases, that a discussion of them with reference to that principle is deemed unnecessary. In this case there is no fraudulent misrepresentation, no concealment, no deceit, no fraudulent imposition; nothing but a refusal to comply with an absolutely void promise to convey her homestead, which the appellant knew Mrs. Everts had a legal right to retract at any time, even up to the last moment before it was consummated. However reprehensible in morals this failure to make good her promise may be, it is not fraudulent either in fact or in law, and gives to the appellant no right of action against her.

Not so as to her husband, the appellee, Henry H. Everts. He is competent to bind himself in such an agreement as his demurrer admits that set out in the petition to be; and while specific performance of it cannot be enforced on account of the rights of his wife, he is clearly liable to respond in damages for its breach.

In Brewer v. Wall, 23 Tex., 589, Mr. Justice Bell, delivering the opinion of the court, says :

“It is true that a husband is not at liberty to alienate the homestead during the wife’s life without her consent. But we cannot perceive that a bond executed by him in his wife’s lifetime, conditioned that he will convey his *535homestead with a perfect title at a future time, would he a void instrument in contemplation of law. We think such a hond would he binding upon the husband, and that upon a breach of it damages might be recovered against him by suit upon the hond.”

The appellant by his petition seeks specific performance of the alleged contract, and, if that cannot be had,- then damages for its breach. The allegations of his petition are sufficient to sustain an action for damages against the appellant, Henry H. Everts. The court below therefore erred in sustaining the demurrer and dismissing his suit, for which the judgment must be reversed.

The opinion and judgment of the court are based on the presumption that the contract or agreement declared on, or some memorandum thereof, is in writing; if the contrary conclusion could have been legitimately arrived at from the record, we would have affirmed the judgment, because in that event, being in contravention of the statute of frauds, an action for damages for its breach could not he maintained. (Brown on Stat. Frauds, sec. 118; Kidder v. Hunt, 1 Pick., 328; Lockwood v. Barnes, 3 Hill, 128;

Bay v. Young, 13 Tex., 552; O. & W. Dig., Art. 936.)

Judgment reversed and cause remanded for further proceedings.

Beversed and remanded.