60 Tex. 633 | Tex. | 1884
If the facts alleged in the petition are true, and they are so to be taken on demurrer, the property in controversy became the homestead of Ben Morris and the appellant, subject only to the payment of the balance of the purchase money.
Such being true, Ben Morris had no power, unless joined by his wife, directly or indirectly, to alienate it, unless the same was done in good faith in settlement of the lien on the property for the balance of the purchase money.
The power of a husband, without being joined by his wife, in good faith, to adjust equities existing prior to the complete investiture of homestead rights, has been recognized in many cases; Farmer v. Simpson, 6 Tex., 304; Meyer v. Claus, 15 Tex., 518; White v. Shepperd, 16 Tex., 163; Clements v. Lacy, 51 Tex., 160; Gillum v. Collier and Richardson, 53 Tex., 593; Hicks v. Morris, 57 Tex., 662.; De Bruhl v. Maas, 54 Tex., 474.
This is a power, however, which must be exercised in good faith, and if it appears that the act of the husband in this respect be in bad faith, and with a view to do indirectly what he could not do directly, and this for the purpose of fraudulently depriving the wife of her homestead right, then, at least as to all persons who have notice of the husband’s evil design, the husband’s act can be of no avail. 16 Tex., 172; 51 Tex., 160.
The petition in this cause renders it reasonably certain (and we must now take all of its averments to be true) that all of the appellees combined to illegally deprive the appellant of her homestead claim or right.
The greater part of the purchase money had been paid, the vendor of the land had transferred the note for balance of the purchase money, upon which only about $40 remained due, to another person, who was not demanding payment, and with whom the appellant
F. & A. Geisecke were advised of the unwillingness of the appellant to the disposition of the property which the husband was seeking to make; they knew her rights therein, and yet, in the face of her protest, insisted upon consummating a contract, through the husband, by which the rights of the wife were to be destroyed; insisted upon paying money to the husband for the property, under circumstances which indicated to them that it was the intention of the husband to squander the little property which seems to have been acquired by the labor of the appellant, and thus defraud her.
If it be conceived that the simple fact that a homestead has not been fully paid for deprives it of the homestead character and protection as against any person other than one holding a lien acquired prior to the time the property becomes the home, then such conception finds nothing in reason nor in the decisions of this court to rest on. Woolfolk v. Rickets, 41 Tex., 361.
The petition states a good cause of action, and the demurrer should have been overruled and an inquiry made into the facts pleaded by the respective parties; and for the error of the court below in sustaining the demurrer the judgment is reversed and the cause remanded.
Reveesed and bemanded.
[Opinion delivered January 25, 1884.]