Reports of cases argued and decided in the Supreme Court of the State of Texas during a part of December term, 1849, at Austin and a part of Galveston Term, 1851. Volume 5. Page: 83
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AUSTIN, 1849. 165-166
Cartwright v. Hollis.
joint lives, and by possibility longer; or to receive the rents and profits for his
own use; or, in short, any such interest as he can voluntarily alienate, or which
may be sold under execution for the payment of his debts, or which will authorize
the commission of waste, all remedy against him being suspended by
the coverture. (2 Kent, 131.) No such interest was conferred by the statute;
and if lie have not the common-law estate which vests in the hIusband jure
uxoris ill the rents and profits of the lands held by the wife in fee, call le have
,any except. as her aenlt for the management and control of property belonging
to her in her separate right by law, and which is now protected tinder the
guarantees of thle CTonstitution? And is not this estate thus controlled by the
agent subject to liabilities for charges and supplies necessary or beneficial to
the estate and for the support of the wife and family when the husband is
without ineans or ability for that purpose? And is it material whether the
debt, be contracted by the husband, acting by law as the trustee of the wife,
tile real owner and beneficiary of the property? It may be said tllat allterior
to tle statute of 1848, subjecting, in express terms, tlie separate estate of the
wife to necessary charges, a special mode being pointed out bylaw for the alienation
of the wife's property antd effects, all others were prohibited, and that
neither the husband 1or the wife could by their acts incumber her estate and
render it indirectly under execution liable to sale in a mode not prescribed
by law. 'The restriction contended for on the wife's power of chargll ng or
disposing of her separate estate, if permitted to operate to the ftll extent,
would be productive of tlhe greatest mischief and injury to her separate interests.
The statute embraces not only lands and slaves, but all other effects " the
separate property of tie wife. If none of her effects can be disposed of but
by acknowledgment before a public officer, can the crops produced upon her
lands be-alienated in any other mode? The cottoih, corn, and( stuglar are the
effects of the wife, (on the supposition that the proceeds of tlie separate property
of the partners belong to [166] them respectively, and do not fall into
the common stock of gain;) and if tile statute be strictly construed as depriving
the wife of all power over her separate estate, except exercised in conformity
with the mode prescribed, can a sale of tlese effects be valid if not aeclknowleged
before the public magistrate? It may be said that tile leoal power of
managing the property authorizes the husband to receive the hire, rents, proceeds,
and profits of the separate property, and to dispose of the crops, &c.,
without the necessity of official sanction. The husband often or generally
receives the rents and profits of separate estates i11 equity; but tllis is from
the presumed consent rand acquiescence of the wife, wlho, having the power of
disposal over her separate estate, can give the rents antd profits to her husband.
When such consent is given or is presumed, tihe husband will not be chargeable;
but if no such consent be given, the wife will be entitled to reimnbulremnent
for the whole of such receipts. (9 Ves. R., 383; 3 Bro. Ch. Cas., 441;
4 Ves. R., 146; 16 Id., 126; 2 Id.. 663; 2 Ves. Jun., 489, 716; 2 P. Wm . 82;
4 Bro. Ch. Cas.. 326; 2 Roper, 220.)
The right of the wife to separate property created and sanctioned by law
is now guaranteed by the Constitution. Such laws as have for their object
the preservation of tlhe estate and the wife's rights from the influence of her
affection for her husband, or from his fraud, oppression, and circumvention, or
that of others, should be enforced according to their spirit and intention, but
not so construed as to deprive tlme wife, or the husband as her legal agent, of
the power of contlactingf for the supplies necessary for the use of sIuch property
aid for the support of the wife a(ld family in the absence of other means,
and of rendering such property liable to that extent. And were such tle plainly
intention of the law, its legal validity, as against an estate under tile protection
of the Constitution, would be extremely questionable. The statute provides
for voluntary alienations, and was intended to protect the wife from
succumbing with too great facility to [167] the operation of influences detrimental
to her rights, and to ascertain whether her assent was altogether
83
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Texas. Supreme Court. Reports of cases argued and decided in the Supreme Court of the State of Texas during a part of December term, 1849, at Austin and a part of Galveston Term, 1851. Volume 5., book, 1883; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28569/m1/91/: accessed March 28, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .