Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Galveston term, 1884, and embracing the greater part of the Austin term, 1884. Volume 61. Page: 58
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58 BRowN v. BROWN. [Galv. Term,
Opinion of the court.
WATTS, J. COM. APP.- Upon the trial the court charged the jury
that " To constitute a delivery so as to pass the title of property by
deed, it is necessary that the grantor should either make an actual
delivery to the grantee, or place the deed within the control of the
grantee with the intention, at the time, of abandoning all further
control of the deed and of vesting then the title to the property in
the grantee." While in respect to that issue appellants asked and
the court refused to give the following instruction: " In determining
whether or not the deed of 1865 was delivered by D. M. Brown to
his wife, Lavinia Brown, you are instructed that it is not necessary
that there should have been an actual delivery; that is, that the deed
should be passed from the hands of D. M. Brown to the hands of
Lavinia Brown; but anything that shows to your satisfaction that D.
M. Brown intended the property mentioned in the deed to pass to
the said Lavinia at the time the same was made, will be sufficient,
notwithstanding said Brown afterwards may have abandoned such
intention," etc.
The giving of the first of these charges, and the refusal to give
the second, is assigned as error. And as these instructions relate to
the same issue they will be considered together.
While our statute has removed many of the common law disabilities
attaching to coverture, and has greatly enlarged the right of
married women to own property, and contract with reference to it,
yet it provides that during the coverture the husband shall have
the sole management of the wife's separate property. This makes
him the agent of the wife, and gives him the right to the possession
of her property, and custodian of her title papers. His consent to
the disposition of her separate property is essential.
It is well established that the husband can make a conveyance to
the wife of his separate property, or of the community property, so
as to vest the title in her as separate property, provided the rights
of creditors are not encroached upon. In this case the contract is
between the heirs of the husband and those of the wife, and in
which creditors and strangers have no interest. And it should be
remarked that the decision will be confined to the case as made,
and the doctrines declared must be understood as thus limited.
Then as the husband is the agent of the wife with the right to
the possession and management of her separate property, and custodian
of her title papers, and having the power to convey to her
his separate property, or the community property, the question as,
between them and their heirs is as to what will constitute a delivery
of his deed to her so as to make the conveyance effective. Is it es
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Galveston term, 1884, and embracing the greater part of the Austin term, 1884. Volume 61., book, 1903; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28513/m1/74/: accessed April 26, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .