It appears from testimony in the record that appellee and Warren were married to each other prior to the time the deposit in question was made, and it does not appear from any of the testimony that their marriage was not a valid one, or that it had been dissolved, and that they were not husband and wife at the time the deposit was made and at the time it was withdrawn. Therefore the question as to appellant's liability as claimed by appellee must be determined on the assumption that those transactions occurred at times when appellee and Warren were husband and wife. *Page 693
By the express terms of the statute (Sayles' Stat. art. 2967), the husband during the marriage has the sole management of the wife's separate estate. The authority so conferred on the husband "invests him with such control and powers as are incident and necessary to the due exercise" thereof. McKay v. Treadwell, 8 Tex. 177. As incident and necessary to the exercise of the power, it has been held he may invest her money in the purchase of land and in the erection of buildings thereon (Railway Co. v. Robards, 60 Tex. 547, 48 Am.Rep. 268), may collect moneys due her as the proceeds of sales of property belonging to her separate estate (Douglas v. Baker, 79 Tex. 504, 15 S.W. 801), and may check out money belonging to her separate estate deposited in her name in a bank (Coleman v. Bank, 17 Tex. Civ. App. 132, 43 S.W. 939; Coleman v. Bank, 94 Tex. 605, 63 S.W. 867, 86 Am.St.Rep. 871). In short, he may deal with her separate estate as he might with his own, except he cannot incumber or convey it in favor of parties having notice of her ownership thereof (Kempner v. Comer, 73 Tex. 196, 11 S.W. 194); and her right, so far as the management thereof is concerned, it seems, is so completely suspended during the marriage that the validity of her acts with reference thereto must be referred to authority in her, not as the owner of the property, but as the agent of her husband. Speer's Law of Married Women, § 36. Such being the law of this state, it necessarily follows, we think, that the judgment of the court below is wrong. As we understand appellee's contention, she does not claim appellant would be liable to her had the deposit been a general one, but that it is liable because the deposit was a special one. It may be conceded that the deposit was a special one, in the sense that it was made on the faith of a contract containing a stipulation that she alone could withdraw it; but, in view of the authorities cited, we think the rights and liabilities of the parties to this litigation would not be different. In making the contract, involving as it did the control during the marriage of her separate property, appellee should be held to have made it as the agent of her husband, subject to a right in him, without prejudice to rights which third parties on the faith of it might have acquired, to revoke the agency and to resume the management of the property at any time he saw proper to do so. The fact is, it seems, however unjust it may be to the wife, the statute deprives her of and imposes upon the husband rights and duties with reference to her separate estate which cannot be affected by any agreement to the contrary. "By her marriage," said the court in Insurance Co. v. Wagley, 68 S.W. 819, "the wife lost all right to the possession and control of her property, except by permission of her husband, and then it is his contract through her as agent"; and in Laufer v. Powell, 30 Tex. Civ. App. 604, 71 S.W. 549, where a deed contained language indicating an intention on the part of the grantors to vest title to land in the wife, "so that she could sell or otherwise dispose of it without the consent of her husband," the court said that, "on account of statutory regulation, the grantors could not confer such power of sale," and so deprive the husband of his right to control and manage his wife's separate property.
The judgment of the court below will be reversed, and a judgment will be here rendered that appellee take nothing by her suit against appellant.