53 Tex. 274 | Tex. | 1880
It is agreed in this case, that Singleton J. Thompson, as the head of a family, obtained, on December 7, 1838, a certificate for one league and labor of land, and which he subsequently traded for 1,948 acres of land in Travis county, embracing the land in controversy..
The testimony is conflicting as to whether he obtained this certificate by virtue of his marriage with one Polly Slaughter, now deceased, or with Elizabeth Thompson, formerly Elizabeth Crawford, under whom appellees, Robb et al., defendants below, now claim.
The testimony is also conflicting as to whether Singleton J. Thompson and Elizabeth Thompson were ever actually lawfully married, though there is testimony tending to prove that they commenced living together about the years 1836 or 1837, and continued to live together as husband and wife, and had several children born unto them, until about the year 1867, when he abandoned'her, in Travis county, leaving her in a
Judgment was rendered for Robb et al., defendants below, from which this appeal is taken.
The first error assigned is that “ the court erred in charging the jury that if Elizabeth Thompson was the wife of Singleton Thompson, and he abandoned her and left her in destitute circumstances, she could sell the whole of the land in controversy.”
It has been long since decided by this court, that if the husband deserts the wife, ceases the discharge of his duties, and contributes in no manner to her support and that of the family, then his previous power of management, control and disposition of the community property, which had been passive in the wife, is brought into activity and transferred to her. Wright v. Hays, 10 Tex., 133; Fullerton v. Doyle, 18 Tex., 12; Forbes v. Moore, 32 Tex., 199; Carothers v. McNese, 43 Tex., 224.
Under such circumstances, the court should not “weigh in golden scales ” the discretion given to the wife in the disposition of the community property for the support of herself and family, and this discretion will not be reviewed, unless, perhaps, in a case where it has been used as a fraud upon the rights of the husband.
Under the testimony we do not think that the court erred in that part of the charge complained of above.
The second error assigned is that “ the court erred in charging the jury that the registration of the deed from Elizabeth
The third error assigned is that “the court erred in refusing to charge the jury that a deed duly recorded is notice only to subsequent purchasers claiming under the same grantor.”
These two alleged errors will be considered together.
Whatever general application the rule may have with us, that the record of a conveyance from one stranger to the title to another, will not affect a subsequent purchaser who claims under a different grantor, we do not think the present case comes under that rule.
Under the law as now settled by the former decisions of this court, the titles of the husband and wife to the community property are equal, the only difference being, that during the continuation of the marriage relation, the husband, as the head of the family, has the management, control and disposition of this property for their joint benefit. Wright v. Hays, 10 Tex., 130; Yancy v. Batte, 48 Tex., 46; Johnsons v. Harrison, id. 257.
Although the importance of legislation, which would require the titles to community property to be taken and recorded in the joint names of both husband and wife, is often seriously forced upon our consideration as a necessity for the protection of parties who purchase such property, yet, under the law as it now is, the legal effect of the deed to the husband alone to community property, is to make it a deed to the community itself; and as the wife, in the event of desertion by the husband, has the power, in certain contingencies, to sell community property, a subsequent purchaser from the husband must at his peril take notice of a prior recorded deed from the wife.
This would be analogous to the case of a conveyance by the heirs, though their title by descent is not upon the record; such conveyance, if bona fide, being held superior to a prior unrecorded conveyance from the ancestor, where there was not
Upon the assumption, then, that Elizabeth Thompson was the wife of Singleton J. Thompson, and that the land in controversy was their community property, there was no error in the above charge as given and in refusing the one asked.
It is also assigned as error’, that the court, on defendant’s application, charged the jury, “ that if Thompson and Elizabeth Crawford lived together as man and wife, and by virtue of such cohabitation got the certificate which they traded for the land in controversy, then, whether they were really married or not, the land was their community property, and on his abandoning her without cause and leaving nothing to support her, she would have the right to sell the property for her support.”
The question whether Elizabeth Thompson was the wife of Singleton J. Thompson, was one of the contested issues in the case, in regard to which the testimony was quite conflicting, and upon the affirmation of which, it was assumed that she had the power to make the sale to Taylor.
This charge virtually withdrew this issue from the jury, as they were instructed that she had this power of sale whether or not she was the lawful wife of Singleton J. Thompson.
In this we think there was error for which the judgment must be reversed.
If the certificate for a league and labor of land was issued to Singleton J. Thompson, because he was living with Elizabeth Thompson as a married man and the head of a family, when, in fact, they were not married, then the question whether Elizabeth Thompson would not be entitled to one-half the certificate or its proceeds, in the nature of a joint acquisition as a partner, is not so presented as to require of us an opinion.
Judgment reversed and cause remanded.
Reversed and remanded.
[Opinion delivered May 4, 1880.]