Allen v. Urquhart , 19 Tex. 480 ( 1857 )

Wheeler, J.

There can be little doubt that the sale of the slaves was made, not only with Mrs. Allen’s entire approbation but at her instance. It is in proof that she had been in negotiation with others to effect a sale : she had expressed her wish to effect it; and when it had been effected, expressed her satisfaction in the most decided manner ; assigning, at the same time, one of the strongest motives that could influence a mother, that the slaves were calculated to ruin her children. With such a motive, and the evidence of negotiations for a sale, so shortly after acquiring the property, it is not too much to assume that, as she stated to the witness, she was really anxious to effect it; and that her anxiety influenced her conduct, and had the effect, in part, to bring about the sale. Her long acquiescence, knowing, as we must suppose she did, her rights, and having the assent of her husband to assert them, as shown by his joining in the suit and being personally active in sequestering the property, is strongly confirmatory of the evidence of her entire satisfaction with the sale. Of that there can be no doubt; and there really can be as little, I apprehend, of her" agency in bringing it about. That is sufficient to render it obligatory upon her if otherwise legal.

The plaintiffs, to show that it was not legal, it having been made when the Spanish law was in force, rely upon decisions of the Supreme Court of Louisiana upon the 61st law of Toro, providing against the wife becoming security for the husband, and providing what shall be necessary to render her liable where she contracts jointly With her husband. These decisions and others upon the same subject were reviewed by the Supreme Court of the United States in the case of Bein v. Heath, (6 Howard, 228,) and the Court there say, “ that in many cases, as a matter of evidence to charge the wife, it may be necessary to prove that the loan was applied to her use, may be admitted. But under the above Article ” (referring to an Article of the Code which the Louisiana Court had held not to have changed the law) “ we think that such evidence cannot be required as a matter of law.” The provision of the Spanish law, more particularly applicable to this case is that which relates to sales ; which declares that “ if the separate property of the wife shall be sold during marriage, with the consent of both consorts, the wife cannot require compensation, or reimbursement, if the purchase money shall have gone to her benefit, and for articles which the husband was not bound to furnish her. But if the price has not been converted to her benefit, she will have the right to reimbursement, which must be taken from the community property if there be any, if not, then from the property of the husband.” Escricke Dice. Verbo Bienes Esteadotales ; and see 1 White, Rec. 56.) If the sale was without the consent of the wife, she will have her action or remedy against'the purchaser. (Id.) It seems therefore, by the law of Spain, that if the property of the wife has been sold with her consent, she cannot recover back the property from the purchaser ; but must have her recourse upon the community property, or the separate property of the husband. Here there can be no doubt the sale was with the consent of the wife ; and that, it would seem, must defeat her right to maintain the present action.

But if it be admitted that the principle of the law invoked by counsel is applicable to this case ; and it devolved on the defendant to prove that the sale enured to the benefit of the wife, it cannot be said in this case, as was said by the Supreme Court of Louisiana in deciding the case of Brandegu v. Kerr and wife, (cited from 7 Martin, N. S. 64,) that “ there is no fact in evidence from which it is possible to infer that the plaintiff’s” (here the defendants’) “ money was employed for the separate use of the wife ; ” and to authorize us hence to “ conclude that the wife is not bound.” The reverse, we think, is the fair deduction from the evidence. The proof is that Mrs. Allen wished (to purchase cattle ; and that she at one time required the payment of a thousand dollars in money to enable her to accomplish that favorite object. It' could not have been that such a purchase was designed for family use and consumption. The object must have been to obtain productive property, from which she might derive profit. It' is in proof that a considerable if not the greater portion of the price of the slaves was paid in, or converted into property of the kind she wished. It became, of course, her separate property ; as completely and absolutely so as the slaves had been, and equally subject to her power of disposition. The presumption is, that she enjoyed the full benefit of it; there is no evidence to warrant a contrary supposition; there is no proof that the husband was not able to provide or th at he did not provide all suitable necessaries for his wife and family out of his own or the common property. There is nothing in the evidence from which it can be inferred that the property was appropriated to uses for which it was the duty of the husband to provide, or that the purchase did not enure ultimately to the sole separate use and benefit of the wife. But all that it concerned the defendant to show was, that it enured to her benefit at the time; that she received the proceeds of the sale. He could not be held responsible for the subsequent management of the property. He had no concern with the disposition she might see fit to make of it. Nor was it necessary that she should have had the better of the bargain. That is not the meaning of the law. It only required that she should have received the benefits thence derived; and that is all that concerns the defendant, or that he could be required to show. That the sale was for her benefit is the only inference which can be fairly deduced from the evidence. She certainly so regarded it; and rightly, if her apprehensions of the influence the slaves were likely to have upon her children were well founded. Of that she had the right to judge, and probably no one knew better than herself. It was a matter certainly of not less interest and concern to her than to her husband. She had an equal right to dispose of, and even sacrifice property, if necessary for such an object; and her power of free disposition, where such a ¡motive is shown, ought to be supported. But apart from that consideration, she obtained for the slaves property which it seemed to have been a favorite object with her to acquire ; and the sale was therefore to her advantage in the fullest sense of the rule. The evidence was therefore sufficient to support the sale ; especially as it was made evidently with her sanction and for her benefit. T o the objection now urged to the admissibility of evidence, that a proper foundation for it was not laid in the pleadings, it will suffice to answer, that was not the objection taken in the Court below. The objection there taken was a very different one, and one which clearly was not tenable.

The law of the charge of the Court is well supported by the authority of Bein v. Heath, and the decisions of this Court to the same effect. (8 Tex. R. 243 ; 11 Id. 477.) The only question of doubt is whether it was warranted by the evidence ; and we cannot say that it so clearly was not, as to warrant a reversal of the judgment, under the circumstances of this case. After such a lapse of time, it must be difficult, if not impossible to prove the facts of the case, with positive distinctness and certainty. The defendant ought not in reason to be held to the same strictness of proof as if the transaction were recent. Nor ought the plaintiffs to derive an advantage from their long acquiescence. Though it does not bar their right, it certainly does warrant an unfavorabl e inference as to the justice of their cause. Under the circumstances the defendant could not be expected, and ought not to be required to produce as satisfactory evidence of the wife’s agency in effecting the sale and inducing the purchase, or of its advantage to herself, as might have been required under other circumstances. On the whole we conclude that the judgment is right and it is therefore affirmed.

Judgment affirmed.