Etheridge v. Price , 73 Tex. 597 ( 1889 )

Collard, Judge.—

The third finding of the court upon the facts was •as follows:

“ The plaintiff S. G-. Etheridge made the sale with Price, showing him ■the west boundary of the Jones survey as by him claimed, which was at the time and had been for several years enclosed with a wire fence.” The ■court concluded as the law of the case that Mrs. Etheridge was bound by the representations of her husband, she having accepted the money paid "and the notes given for the purchase, money of the land. The note sued von stipulated for the protection of Price against the claim of the Chadwick heirs to a portion of the land conveyed by the deed.

The evidence sustains the finding of the court that S. G. Etheridge represented to Price at the time he was negotiating with Price for the sale that the Jones survey extended west to the wire fence. After the sale the Chadwick heirs sued and recovered of Price a strip 618 varas east of the wire fence, but the evidence also establishes the fact that the land recovered by the Chadwicks was no part of the Jones survey as described in Mrs. Etheridge's deed. The deed contained a covenant of general warranty. The deed, the notes, and the cash payment were expressed ■by Price to her at Galveston, some two hundred miles away, and she signed the deed and accepted the notes and the cash payment in ignor■ance of the representations made by her husband. Under these circumstances; was the conclusion of the court below correct that she was bound by the representations of her husband?

It is a general rule that where the vendor represents his land to be in one place and the vendee relies upon such representations and is so induced to purchase, and it turns out that the land is in another place, the sale will be set aside, or other appropriate relief will be granted. It is also a well established rule that where the principal accepts the benefits of a contract made for him by his agent he must also assume the obligations of the contract, even to the extent of answering for the fraud or misrepresentations of the agent. The fraud must be a part of the res gestee, and the acts claimed to be fraudulent must be within the scope of the agent's authority. Mech. on Agency, sec. 775; Story on Agency, 126, 127, 134, 135.

A ratification by the principal either express or implied is equivalent ■to precedent authority, but in general the ratification to be complete must be upon full knowledge of the obligation and its considerations. Mech. on Agency, sec. 129; Reese v. Medlock, 27 Texas, 125, and authorities cited.

The husband is not by implication of law the agent of the wife. On the contrary, it is held in this State that the wife can not by express power of attorney constitute her husband her agent to convey her land. Montgomery v. Noyes, supra, 203; Cannon v. Boutwell, 53 Texas, 626.

Our law for the purpose of protecting a married woman has imposed certain well known restrictions as to the method of conveying her separate estate in land. She must be joined by her husband, but to guard againstundue influence and coercion on the part of the husband, and so-that she may act with perfect freedom and full understanding of her acts, it is required that before her deed can have effect as a conveyance her acknowledgment of it must be taken before an officer privily and apart from her husband, and among other requirements the instrument must be then and there shown and “fully explained to her.” The object of the law is that she may not only act freely but understandingly. In a ratification of a sale made by her husband, how can she act understandingly of obligations that arise from representations made out of her presence by her husband without her knowledge or authority, which representations are not contained in her deed P

In an Iowa case (where the husband could act as agent of the wife) it was said: “The husband may act as the agent of the wife. In order to bind her, however, he must be previously authorized to act as her agent, or she must subsequently, with express or implied knowledge of his act, ratify it. The evidence necessary to establish a ratification by the wife of a contract made by her husband as her agent must be of a stronger and more satisfactory character than that required to establish a ratification by the husband of the act of the wife as his agent, or than as between independent parties. * * * Of course it is necessary in every case to bind her that he should at least claim to act as her agent, and her ratification should be shown by those unmistakable acts or declarations which evince a knowledge of the contract by which she is sought to be bound and an intention to adopt or ratify it as her own.”

The only use we have for the quotation above is specially to show that a ratification by the wife of unauthorized acts of her husband to be binding upon her must be upon full knowledge of the acts themselves.

It is claimed by the appellee that the deed executed by Mrs. Etheridge was a ratification of the representations made by her husband to Price pending the negotiations that the west line of the survey to be conveyed was at the wire fence. The deed contains no such stipulations. It merely describes the Ben D. Jones survey as 1900 varas square, calling for lines, stakes, and corners; it makes no mention of the wire fence. The deed actually did convey the Jones survey and its excess of 240 acres over and above the area described by the length of the lines in the deed. The deed contains a general warranty of the land conveyed. Price was made to believe by Etheridge that the line extended to the wire fence, but in truth it did not—it lay further east; but all of it was there as described in the deed, besides a considerable excess. It was not in conflict, with other surveys—especially not with the claim of the Chadwick heirs. Their suit only demonstrated that the Jones survey lay 618 varas further east than Etheridge said it was. The deed did not declare it went to the wire fence, nor did Mrs. Etheridge say so. There was nothing in the note from which it can be said that she knew or was notified that the land was-represented or was thought to extend to the wire fence. The terms and language of the note only bound her to protect Price against the claim the Chadwick heirs might set up to any part of the land. What part?' The language is, that whereas there is pending “ a suit by W. J. Montgomery against S. G. Etheridge et al. for a portion of the land described in said deed, and for which this note is given; and whereas there is also-claim made by the heirs of Chadwick, deceased, for a portion thereof.” What portion? Evidently a portion of the land described in the deed, and nothing more. We repeat again that there is nothing in the note to-put Mrs. Etheridge upon notice that her husband had represented that the land was bounded by the wire fence, nor is there anything in the deed to do so. Her warranty bound her to make the title to the land described in the deed good, and the agreement in the note was to protect Price against the Montgomery suit and against the claim of the Chadwick heirs, for and to any of the land described and conveyed in her deed.

The deed and the note, either or both, was not ratification of anything-further than the sale of the land conveyed in and "described by the deed, she being ignorant of any other fact by which she is sought to be bound. She knew of nothing more and acknowledged nothing more in her privy examination.

In addition to authorities cited see Weir v. McGee, 25 Texas Supp., 20;. Hughes v. Sandal, 25 Texas, 162; Cole v. Bammel, 62 Texas, 108; Newman v. Earquhar, 60 Texas, 644; Mech. on Mort., secs. 112, 127, 63.

We do not think any breach of the warranty in Mrs. Etheridge's deed, was shown on the trial, nor do we find that there should be any deduction from the amount due on the note on account of the Chadwick suit.

We are of opinion the case should be reversed and remanded.

Reversed and remanded.

Adopted April 30, 1889.