Eckhardt v. Schlecht , 29 Tex. 129 ( 1867 )

Moore, C. J.

It cannot of course be supposed that the

fraudulent declarations or conduct of the husband, to which the wife is not privy, will be held in equity to pass the title to the homestead, or create any charge upon it which the husband could not make by deed. Hor could any one be found who would insist that the fraud of the husband will bar its recovery for the use of the family. To do this, if it can be error, then there must be fraud both on the part of the husband and wife, for which no other adequate redress can be afforded. It is, however, much too clear for argument, that there is not in this case the slightest evidence of any fraud by Mrs. Eckhardt, inducing appellee to purchase, as he claims to have done, the land for which this suit was brought. Eckhardt’s proposition was made on the 7th of April, 1856; yet appellee neither avers nor proves that he accepted .or acted upon this proposition until the 8th of June, 1858, at which time he claims to have “fully and fairly performed his part of the contract, hy improving said land, and moving on the same with his family,” and by his payment of the purchase money into court with his answer. And if it can be inferred that Mrs. Eckhardt, when she wrote the letter which is relied upon as evidence of her assent to the sale. of the land, knew of the terms upon which it was offered by her husband, and intended to manifest her willingness to concur in them, is there the slightest ground to say that she intimated or supposed the purchase, if made by appellee, would not be consummated in the manner directed by the statute ? or that she knew, or had any just reason to suppose, that, after his long delay, appellee had taken possession of the land, in the belief that he was authorized to do so by her letter? Appellee, therefore, had no right to believe from this letter alone, either that she encouraged or would acquiesce in his occupation of the land. And since, as has been repeatedly decided by this court, (see Berry v. Donley, 26 Tex., 737, and cases there cited,) her free and voluntary deed, unless acknowledged as prescribed by law, will not pass the title to her separate property, it is absurd to suppose that her mere tacit knowledge of the wrongful occupation and improvement of a portion of the homestead could have this effect.

The decision of the district court was made, however, upon the ground, that while the permission given appellee to enter upon the land, and appellant’s knowledge that he was making the improvements, did not divest them of the title, equity forbids appellee being dispossessed, except upon compensation for such improvements. But it must be observed, that the question presented is not whether a party who has acted under a license not sufficient absolutely and conclusively to bind the parties, because not in the form required by law, may not protect himself against liability for acts done under its sanction, nor as to the right in such case to claim a corporeal hereditament, which, if it could be the case, would not interfere with or impair the use and enjoyment of the homestead, nor as to the power of a court of equity to permit the occupant taking from the premises the materials furnished by him which are susceptible of removal.

The record presents the bald question, whether the family may be deprived of the use of a considerable part of the homestead until compensation is rendered for improvements which, without interfering to stop them, the wife knew were being made. If such is the case, the protection given by the constitution and law to the homestead would be idle and nugatory. Improvements, worthless to the family, might become an assurance of title as effectual as a deed properly executed and acknowledged; or their very poverty, the strongest reason why the family should be secured the small pittance allowed them by law, might occasion its loss; or the husband, by whose wrongful connivance the occupant had 'entered, might withhold the means of compensating for them, and thus give effect to his original wrong. But the law does not permit thus circuitously to- be accomplished that which cannot be done directly. Homesteads are, fortunately, secured to families with us by no such uncertain tenure. They are, neither in respect to their title nor use, the subject of direct or indirect forced sale. The decree of the court, in our opinion, violates this fundamental principle, and it must therefore be reversed.

If the facts in respect to the value of the improvements, and all thg circumstances in connection with appellee’s entry and occupation of the land, were before us, we would proceed to render such judgment as should be given in the case. But we are led to the conclusion, from an inspection of the record, that (if, indeed, all the facts are stated in the transcript, which were before the court below) they may he presented in a much more full and satisfactory manner on another trial.

It is therefore ordered that the judgment be reversed, and the cause

Remanded.