Clayton's Administrator v. Frazier

Citations

• 33 Tex. 91

Syllabus

<p>1. Plaintiff sued, the heirs and administrator of a married woman for title to land which had been her separate property, and for which she and her husband had executed to plaintiff a bond for title on his payment of the purchase money ; but there was no privy examination of the married woman as to her voluntary execution of the bond. Plaintiff’s petition alleged payment of the purchase money, possession since his purchase, valuable and permanent improvements by him, and that the married woman did in fact execute the bond voluntarily, and never wished to retract it. Defendants demurred to the petition, relying on the want of ,the privy examination of the married woman. Held, that the petition presented a ease for equitable relief by specific performance,,and that the demurrer was rightly overruled. Womack v. Womack, 6 Texas, 397, and Dalton v. Rust, 22 Texas, 133, cited by the court, and the rulings therein on this question, approved.</p> <p>2. The statute (Paschal’s Dig., Art. 1003,) prescribing the mode of conveying separate property of married women does not necessarily invalidate all conveyances otherwise made. The voluntary execution by the wife may be established by proof', and a case be made on which the conveyance will be sustained in equity, notwithstanding there was no privy examination of the married woman.</p> <p>3. Though an incompetent witnesswas erroneously permitted to testify by the court below, yet when the same faets testified to by him were also fully established by other and unobjectionable evidence, the error will be regarded as immaterial.</p> <p>4. On a bill for specific performance of a title bond for land, the court below adjudged that plaintiff recover the land, and that title be divested from defendants and be vested in plaintiff; but this court, though sustaining the judgment in substance, reforms it and decrees that the defendants, within thirty days from the close of the term, do make to the plaintiff a deed in tee simple, and that