Kirby v. Moody , 84 Tex. 201 ( 1892 )

This suit was brought by the appellant to recover certain tracts of land alleged to be the separate property of his wife, Lelia W. Kirby. The cause was tried by the court without a jury upon an agreed statement of facts, and a judgment was rendered for the plaintiff for an undivided one-half of the lands sued for.

The facts are substantially as follows: Lelia W. Kirby was the only child and heir of John W. Stewart by his wife E.A. Stewart. The lands were purchased by John W. Stewart and conveyed to him during his marriage with the said E.A. Stewart. He paid for them with his separate means, but the deeds were in the usual form, and contained nothing tending to show his separate estate in them. John W. Stewart died intestate and free from debt. He left surviving him his daughter aforesaid and his widow, the said E.A. Stewart, who never qualified as survivor in community. E.A. Stewart, after the death of her husband, became indebted to W. L. Moody Co. in the sum of $1000, and desired to borrow from them the additional sum of $4500. The money furnished her, in consideration of which she executed a deed of trust upon the lands in controversy to secure the payment of both debts. The lands were duly sold under the deed of trust and purchased by the appellee, and were conveyed to him by the trustee.

It was proved, that at the date of the deed of trust neither W. L. Moody Co. nor any member of that firm had notice of the facts making the lands the separate property of the husband, but that such notice was given W.L. Moody after the money was furnished and subsequent to the execution of the trust deed, and before the sale was made by the trustee.

The rule controlling this case was stated in the opinion rendered in the case of Cooke v. Bremond, 27 Tex. 460, as follows: "All property acquired by purchase or apparent onerous title, whether the conveyance be in the name of the husband or of the wife, or in the names of both, is prima facie presumed to belong to the community. It is true that it is now a well established and long recognized rule of procedure in our judicial system, as between the parties to such deeds, their privies in blood, purchasers without value or with notice, to affect the legal import of such deeds by parol evidence. But we know of no principle upon which such evidence can be received for the purpose of explaining or modifying such deeds after the property has passed into the hands of innocent purchasers, and thereby engrafting upon it a trust to their detriment." Kirk v. Nav. Co., 49 Tex. 215; Parker v. Coop, 60 Tex. 111 [60 Tex. 111].

Since the decisions above referred to were made this court has held, that such a deed made to the husband conveys to him the entire legal title, and that under it the wife acquires only an equitable title to her one-half interest. But that equitable title is conferred upon her by statute, and is presumed to exist whenever a deed is made to the husband which does not show upon its face the contrary. In such cases the wife's equitable title will be protected as fully as the husband's legal one will be, except as against purchasers of the legal title for value and without notice of the marital relation, or with notice of facts conferring upon the husband other rights in regard to the title. Stiles v. Japhet, ante, p. 91. A mortgagee is entitled to the same protection that would be extended to a purchaser under like circumstances.

It results, that W. L. Moody Co. having advanced money upon the title and received from the widow a deed of trust before they had notice of the facts that would have given to the husband a greater than a one-half beneficial interest in the land, W.L. Moody must be held to have acquired by his purchase from the trustee the superior title in one-half of the land. His deed when made related back to the date of the deed of trust, and hence the title acquired by him was not affected by the notice given after that date, but before the sale was made by the trustee.

The judgment is affirmed.

Affirmed.

Delivered March 26, 1892.