20 ANN BERTA LODGE V. LEVERTON. [Tyler Term,
Opinion of the court.
they had equitable rights which they could assert in this
Under one or the other of these general divisions we will
now consider and dispose of all the questions presented by
the assignments of error, in respect to all the matters complained
of prior to the return of the verdict, which it is
deemed necessary to notice, except the refusal to grant the
continuance asked by defendants after the commencement
of the trial.
1. The supposed defects in the plaintiff's title are: 1st.
The plaintiff's vendor being a married woman, and her
husband not having joined in the conveyance, the power
of attorney and deed under which she claims were inoperative
and void. 2d. Want of mental capacity in plaintiff's
vendor to convey. 3d. Failure in proof of the execution
of mnniments of title upon which plaintiff relied. 4th. The
deed to.plaintiff was without consideration.
The first of these grounds of defense was presented in
defendants' first amended answer, and although not so fully
and distinctly presented as it might have been, we see no
good reason why the court should have sustained the exceptions
to it. But no injury resulted to defendants from
the ruling of the court. On the trial defendants were permitted
to prove the facts alleged in the answer. They
thereby got the full benefit of the answer. The legal effect
which might have resulted from such facts was fully met
and rebutted by evidence showing the abandonment of the
plaintiff's vendor by her husband long prior to the execu-,
tion of the deed to plaintiff. It is not now an open question
in this court, that the wife, when forced by the action
of her husband to assume and fulfill the duties of afeme
sole, or the head of the family, may exercise the rights and
privileges of such position. And the validity of her acts
cannot be impeached, even by parties directly interested
therein, much less can strangers be heard to call them in
Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42.. St. Louis, Mo.. The Portal to Texas History. http://texashistory.unt.edu/ark:/67531/metapth28531/. Accessed December 25, 2014.