Nolan v. Moore

72 S.W. 583 | Tex. | 1903

On the 22d day of January, 1884, John T. Moore and Lula H. Moore were husband and wife and have so continued down to the present time. They resided at that time in Jefferson County, in the State of Mississippi. In her separate right Lula H. Moore owned in Texas the land in controversy, and on the day above stated, she being at home in Mississippi and John T. being in the State of Texas, the said Lula H. Moore executed and acknowledged, in the manner and form required by the laws of Texas, a power of attorney to James L. Autry, of Navarro County, Texas, by which she empowered and authorized the said Autry to sell and convey the land sued for in this case, as well as other lands in Texas. John T. Moore did not join in the power of attorney, which was forwarded to James L. Autry and recorded in Navarro County on the 14th day of February, 1884. On the 13th day of August, 1884, John T. Moore joined with James L. Autry, who acted under the said power of attorney for Lula H. Moore, in executing a deed which conveyed the land sued for to F.L. Smithey for a cash consideration of $900 then paid. At the date of the trial the land was worth $15 per acre without regard to the improvements, and with the improvements it was worth $30 per acre. On the 16th day of February, 1889, Lula H. Moore, joined by her husband, instituted this suit against the plaintiffs in error, who claimed under Smithey, to recover the land, and judgment was given by the trial court in favor of the plaintiffs, which was affirmed by the Court of Civil Appeals.

The following article of the Revised Statutes prescribes the mode by which a husband and wife may convey real estate, the separate property of the wife: "Art. 635. The husband and wife shall join in the conveyance of real estate, the separate property of the wife; and no such conveyance shall take effect until the same shall have been acknowledged by her privily and apart from her husband, before some officer authorized by law to take acknowledgments to deeds for the purpose of being recorded and certified to, in the mode pointed out in article 4643."

The term "conveyance" as used in the above article signifies the deed which transfers the title from the wife to the purchaser. McCabe v. Heirs of Hunter, 7 Mo., 357. The word "join" means that the husband and wife must unite, that is, act together in the execution of the deed. The question involved in this case is, must the husband and wife each in person execute the same paper, deed or power of attorney to make the conveyance their joint act?

It has been settled by this court that the husband and wife need not personally sign the deed, but may jointly appoint an agent by a power of attorney, duly executed by them, who, acting for both, can make a valid conveyance of the wife's separate real estate. Patton v. King, 26 Tex. 685; Warren v. Jones, 69 Tex. 462 [69 Tex. 462]. In each of the cases cited, the husband and wife appointed an agent by a power of attorney, jointly executed by them, and this court held that the conveyance made by such agent was valid.

It has likewise been held by this court that the husband and wife need not execute the conveyance at the same time, but the husband having signed and acknowledged a deed conveying his wife's separate real estate, she may at a subsequent time sign and acknowledge the same instrument and thereby make it effective from the time of her signature and acknowledgment. Halbert v. Bennett, 26 S.W. Rep., 913. In the case last cited, the husband held a power of attorney from his wife empowering him to sell certain land, her separate estate, which he conveyed, signing his wife's name by himself as agent and his own name as her husband. Two years after that date the wife signed and acknowledged the same deed and the Court of Civil Appeals of the Fifth District held the deed to be valid from the time of her signature and acknowledgment. This court refused a writ of error in that case, thereby adopting the opinion of the Court of Civil Appeals, there being but one question presented by the application. It is likewise established by this court that the husband may empower the wife to sell her separate real estate, acting for herself and as his agent. Rogers v. Roberts, 13 Texas Civ. App. 190[13 Tex. Civ. App. 190]. In that case the court likewise refused a writ of error, there being but the one question presented by the application. We conclude that a married woman, by a power of attorney executed and acknowledged by her alone, may authorize a third person to sell and convey her land, and that such person acting with the husband can convey her separate real estate.

John T. Moore and his wife joined in the deed to Smithey as effectually as if both had been represented by Autry, or Moore had been represented by his wife, she acting for herself. The privy acknowledgment of the power of attorney guarded the wife against undue influence by her husband, and she had the right to revoke the power at any time before the deed was delivered. The power of attorney was inoperative until the husband joined in the deed which secured his right to manage the property. Every beneficial purpose of the law was accomplished. Patton v. King, before cited. The trial court erred in excluding the power of attorney and deed, for which the judgment must be reversed. We can not render judgment because the evidence was excluded, therefore the cause will be remanded, the defendant in error to pay all costs of the Court of Civil Appeals and of this court.

Reversed and remanded.