Goode v. Jasper , 71 Tex. 48 ( 1888 )

Collard, Judge.

E. N. Goode and Catherine, his wife, were married in 1848; they were divorced in 1855, by decree of the district court of Bell county. During their coverture they acquired a right to a certificate for six hundred and forty acres of land, as colonists in Mercer’s colony. The certificate was issued in 1856, after the divorce, to E. N". Goode. The decree of divorce had dissolved the marital partnership, so that when he obtained the certificate, one-half of it became his separate propert3r, and the other half the separate property of his divorced wife, Catherine. He then had no right to control community property, dispose of it, or make contracts with reference to it so as to bind her interest therein. Had there been no divorce the certificate would have been community and hé would have had full power to dispose of it, and make any contract with reference to it that he could have made if it had been his own individual property. After the dissolution of the partnership by divorce, he could only bind his separate interest of one-half, at least by new contracts. Whatever power he may have had after divorce to pay community debts out of the community estate, he had no power to charge her part of it with new contracts. This being the case he could not make a contract for the location of the certificate for one-half of the land so as to bind her. (Keen v. Casey, 22 Texas, 412; Burris v. Wideman, 6 Id., 231; Stone v. Ellis, 69 Texas, 325.)

If he sold one-half of the land, after it was located, to J. R. Grover, for two hundred and ten dollars, or if he made the deed in consideration of Grover’s having located the land by contract with him for one-half of it, he, in either case, if the conveyance was for one-half of the land according to value, conveyed all of his interest. It is thus seen that it is entirely immaterial what the consideration of the deed to Grover was. If the consideration was illegal, that it was for services of Grover, deputy district surveyor, in locating the land, the contract was executed, and the courts would not set aside. It passed the title to all the land equitably owned by Goode, and left the equitable title to the other half in Catherine Goode. He had, however, the legal title to the whole of the six hundred and forty acres. The certificate and the patent issued to him after divorce, from his wife; she had the equitable title to the unsold half. (Edwards v. Brown and Wife, 68 Texas, 329.) His legal title descended to his heirs, who could upon such title recover the unsold portion of the tract from mere trespassers, who were in no way connected with the equitable title outstanding in Mrs. Catherine Goode. Defendants offered no proof to show that they were holding under her equitable title. They could not use such a title as a defense without connecting themselves with it. (Shields v. Hunt, 45 Texas, 425; Johnson v. Timmons, 50 Texas, 537.)

The court having ruled for defendants that Goode’s deed to Grover conveyed all his interest in the survey, and that plaintiffs could not prove that it was executed in consideration of the location of the land by Grover, he being a deputy district surveyor at the time he located the land, virtually decided the case for defendant, and they, for that reason may have felt justified in not producing proof that they held the premises under the equitable title of Catherine Goode.

' Under these circumstances we think the cause should be reversed and remanded to give defendants an opportunity to establish the fact of such holding by them, if they can. If they fail to do so, the plaintiff’s must recover under the legal title inherited by them from E. H. Goode, as the case is now presented.

The cause is reversed and remanded for a new trial.

Reversed and remanded.

Opinion adopted June 5, 1888.

Stayton,

Chief Justice.