1. Lands in Texas belonging to a married woman are termed in
that state her "separate property," and she has in equity all the
power to dispose of them which could be given to her by the amplest
deed of settlement.
2. During the absence of her husband, when she had the exclusive
management of her interests, a married woman owning in her own
right such lands conveyed them to A. by deed, which she
acknowledged before the proper officer, as if she were a
feme
sole. She invested the purchase money in
another tract, and A. sold the lands to B. Some years
afterwards, she and
her husband brought an action to recover them. B. filed his
bill, praying that the action be enjoined and his title quieted.
Held that in view of the decisions of the Supreme Court of
Texas as to the effect of such a conveyance, he was entitled to the
relief prayed for.
The facts are stated in the opinion of the Court.
MR. JUSTICE SWAYNE delivered the opinion of the Court.
There is a considerable mass of testimony in the record, but
Page 98 U. S. 243
the facts are few, and we think there is nothing material about
which there is any room for doubt.
In the year 1863, and for some years previous, the appellant,
Mrs. Slaughter, had owned in her own right the premises in
controversy in this case. She was a widow when she married
Slaughter, and then possessed the property. It is situated in
Marion County, in the State of Taxes. The land was poor and the
place very unhealthy. In the spring of that year, Dunn & Co.
were desirous to put up a packing establishment, and were looking
for property to buy with that view. Her agent offered the premises
in question. At his request Dunn called upon her. She asked $8,400.
Dunn & Co. agreed to give it, and paid her in Confederate
money. On the 21st of July, 1863, the payment was completed, and
she executed a deed to the purchasers. She was the sole grantor,
and the certificate of acknowledgment was silent as to any separate
and privy examination. The certificate is as if she were a
feme
sole. Gray, the officer who took the acknowledgment, testified
as follows:
"I witnessed and attested said deed at the request of Mrs. E. J.
Slaughter, the maker thereof. I took her acknowledgment to said
deed. I asked her if she acknowledged it to be her act and deed,
for the uses, purposes, and considerations as therein stated and
expressed; she answered that she did. I cannot remember positively
what other questions were propounded to her or what answers were
made, but I think I asked all the questions usually asked by county
clerks in taking acknowledgments, as required by the statute. She
signed the deed, after an explanation of its contents made by me to
her. Her husband, M. T. Slaughter, was at that time absent in the
army. After the examination and explanation of the contents to her
by me, she signed the deed, and acknowledged it to be her act and
deed. She acknowledged it, so far as I could tell, freely and
willingly."
"At the time of the making the deed, M. T. Slaughter was absent.
He had been absent about four months, not less than four months. He
was a soldier in the Confederate army. He was absent for more than
twelve months; I cannot remember positively how long. "
Page 98 U. S. 244
About the time the transaction was closed she bought another
tract of land situate in the neighborhood, and paid for it out of
the money she had received from Dunn & Co. A deed to her was
duly executed on the 3d of August following. The tract is fully
described in the bill, and a copy of the deed is in evidence. The
property was known as the Culbertson farm. Before selling and
buying, she consulted with her friends, and they earnestly advised
both a highly advantageous.
The firm of Dunn & Co. consisted by Dunn and Price. Price
sold and conveyed to Dunn his share of the premises in controversy,
and Dunn sold and conveyed the entire premises to Joseph Glenn,
since deceased.
On the 26th of May, 1863, the appellant, M. T. Slaughter, left
his home, and entered into the Confederate military service in the
State of Louisiana. He lost an arm by a casualty of the war, and
thereupon returned home and remained there. He was absent about a
year. He had no means. His wife had considerable property. During
his absence, she managed and controlled every thing as if she had
been a
feme sole. His ever returning depended upon the
chances of the war. Upon getting back, he expressed himself as
highly gratified by the sale and purchase she had made. She had
constantly done the same thing. On the 3d of June, 1868, Slaughter
and wife conveyed an undivided half of the premises in controversy
to one of their counsel in the court below, with a special covenant
against all persons claiming under them. By the same instrument it
was provided that the learned gentleman should prosecute a suit for
the recovery of the premises without any other compensation, and
that in the event of defeat he should pay all costs and damages and
save his clients harmless. An action of trespass to try title was
instituted in the proper state court, in the name of Slaughter and
wife. Glen thereupon filed this bill to quiet his title. Upon his
application, both cases were removed to the circuit court of the
United states. That court decreed a perpetual injunction in the
action at law, and the equity case has been brought here for
review.
The controversy between the parties is to be decided
according
Page 98 U. S. 245
to the jurisprudence of Texas. We must administer the law of the
case in all respects as if we were a court sitting there, and
reviewing the decree of an inferior court in that locality.
Olcott v.
Bynum, 17 Wall. 44.
The case on the part of the appellants wears the appearance of a
conspiracy to defraud, which, to say the least, does not commend it
to the favorable consideration of a chancellor.
A court of equity must find itself hard pressed in the other
direction to refuse the relief sought by the bill upon the facts
disclosed in the record. We do not find ourselves embarrassed by
any such considerations.
The only objections taken by the appellants to the title of the
appellees' testator are that Slaughter was not a party to the deed
of his wife to Dunn & Co., and that the certificate of her
acknowledgment does not conform to the requirements of the statute
of the state touching deeds by married women of their own
property.
Before considering that subject, it is proper to advert to two
other points which arise upon the record.
All the means, legal and equitable, which Dunn had of protecting
his title passed by assignment under his deed to Glenn.
Kellogg
v. Wood, 4 Paige (N.Y.) 578.
Mrs. Slaughter paid for the Culbertson farm entirely out of the
proceeds of the property which she conveyed to Dunn & Co., and
there was an overplus left in her hands. If we were constrained to
hold that she is entitled to recover back those premises, it would
then have to be considered whether she should not be regarded as a
trustee
ex malaficio, and required to convey to the
appellees, as representing Glenn, the Culbertson farm, in which the
money of Dunn & Co. was invested.
Oliver v.
Piatt, 3 How. 333;
May v. Le
Claire, 11 Wall. 217.
Again, it is the settled law of Texas that if an infant convey,
and after coming of age choose to rescind, he must, as a general
rule, restore what he has received, before he will be permitted to
recover, and the same rule is applied to married women under like
circumstances.
Womack v. Womack, 8 Tex. 397.
But it is necessary to pursue these views, because we find
Page 98 U. S. 246
the propositions of the appellants touching the execution of the
deed to Dunn & Co. wholly untenable.
The common law rights and powers of
feme coverts have
been considerably modified in Texas. There, real estate belonging
to her, whether acquired by descent or purchase in the usual way,
is termed, though not technically so, her "separate property," and
she has in equity all the power to dispose of it which could be
given to her by the amplest deed of settlement. The statute
regulating conveyances to pass the legal title is not unlike those
of most of the other states. It provides that the
"husband and wife having signed and sealed any deed or other
writing purporting to be a conveyance of any estate or interest in
any land, slaves, or other effects, the separate property of the
wife, . . . if the wife appear before any judge,"
&c.,
"and being privily examined by such officer apart from her
husband, shall declare that she did freely and willingly sign and
seal the said writing, to be then shown and explained to her, and
wishes not to retract it, and shall acknowledge the said deed or
writing so again shown to her to be her act, thereupon such judge
or notary shall certify such privy examination, acknowledgment, and
declaration, under his hand and seal, by a certificate annexed to
said writing, to the following effect or substance, viz.,"
&c. The form is then given. 1 Laws of Texas (4th ed.), p.
261, art. 1003.
In the administration of this statute by the courts of the state
a singular anomaly has grown up. The following adjudications will
show the changes in the common law and the anomaly to which we have
referred.
In
Womack v. Womack, supra, a husband and wife conveyed
a slave belonging to her, and warranted the title. There was no
certificate of acknowledgment. The court said the statute which
prescribed the mode of conveying did not declare void any other
mode, and that it seemed,
"from its terms, to have but one object in view, and that was to
secure the freedom of will and action on the part of the married
woman. If she was free to act, and so declared it, and that she did
not retract, all the circumstances concurred which were made
necessary to pass the title to the property."
The deed was held to be valid.
In
Wright v. Hays, 10 Tex. 130, the husband was from
home,
Page 98 U. S. 247
at a distance, for nearly six years. During his absence his wife
visited him. At the end of that time, he returned home and remained
there. In the meantime, the wife bought land, took the title in her
own name, and conveyed a part of it to her son by a former husband.
After her death, suit was brought to defeat the conveyance. The
same objections were made to the deed as here. The court said:
"The joining of the husband in the wife's conveyance, her privy
examination and declaration that she acts freely, all presupposes
that a husband is present and may be exercising undue influence
over her. But can these formalities be requisite in cases where the
rights of the wife (and they are acknowledged by law) depend upon
the supposition that
de facto she has no husband?"
The deed was sustained, and judgment was given for the
defendant.
In
Dalton v. Rust, 22
id. 133, the vendors had
given a title bond to the vendee for a tract of land described by
metes and bounds. The vendee died before making full payment. The
vendors filed a petition in the county court for the sale of the
premises and the payment of the balance due. A sale was accordingly
made, and the amount due paid out of the proceeds. The purchaser
sued to recover possession, according to the metes and bounds set
forth in the bond. One of the vendors set up as a defense that she
was, when she executed the bond, and had continued to be, a married
woman, and that she did not acknowledge the bond according to the
requirements of the statute. It was held that she was estopped by
the proceedings in the county court and the receipt of the purchase
money from denying the validity of the bond, or the right of the
purchaser to all the lands within the metes and bounds set forth in
the original contract which she had executed. She was treated in
all respects as if she had been a
feme sole from the
outset.
In
Clayton's Adm'rs and Others v. Frazier, 33
id. 91, the plaintiff sued the heirs of a married woman
for the title to land which had been her property, and for the
conveyance of which, of the payment of the purchase money, she and
her husband had given a bond. There had been no examination of the
wife as to her voluntary execution of the bond. It was held that
the case was a proper one for specific performance.
Womack
Page 98 U. S. 248
v. Womack and
Dalton v. Rust were cited and
approved. This is the latest authoritative adjudication in that
state upon the subject to which our attention has been called.
These authorities require no comment. The propositions which
they establish are decisive of the case before us.
Decree affirmed.