In response to a suggestion in the original opinion filed by us in this cause, as to the grounds for the admission in evidence of the transfer from Hamilton and wife to Stiles, in 1843, of an interest in the land certificate, before its location, which said evidence was confined by the charge of the court below to the issue of forgery of the deed from Hamilton and wife to Stiles, appellant's counsel, in their motion for rehearing, present the question as if our decision had been based upon that transfer, when we expressly state in the last clause of the opinion that such is not the case. Appellant's counsel refer in that connection to the act of February 3, 1841 (Hartley's Dig., 173), which provides that, "when a husband and his wife have sealed and delivered a writing purporting to be a conveyance of any estate or interest in land, slave or slaves, or other effects, the *Page 74 separate property of the wife," if she appears before certain named officers and is privily examined, then the following certificate, in substance, shall be given by the officer. We think there is nothing in this act, under a fair construction, providing that her sale of her personal property must necessarily be under such privy acknowledgment, or even in writing at all, in order to be valid. The Supreme Court seems to have been in doubt for many years, if in fact the question has even been authoritatively settled, how far these statutes should be considered imperative when applied to the wife's separate personalty. In the case of Womack v. Womack, 8 Tex. 414, which was a case involving the transfer of a slave, the separate property of the wife, without her privy acknowledgment, Chief Justice Hemphill held that the conveyance passed the title. This case has been frequently referred to by the Supreme Court, and the doctrine there announced sometimes criticised and doubted, and afterwards referred to with approval. Gregory v. Van Vleck,21 Tex. 40; Dalton v. Rust, 22 Tex. 133 [22 Tex. 133]; Berry v. Donley, 26 Tex. 737; Clayton v. Frazier, 33 Tex. 91; Fitzgerald v. Turner, 43 Tex. 79; Johnson v. Taylor, 60 Tex. 365 [60 Tex. 365]; Williams v. Ellings-worth, 75 Tex. 482 [75 Tex. 482]; Angier v. Coward, 79 Tex. 554.
It will be observed, however, that in every case where the doctrine has been called in question, it was in the sale of real estate or slaves, both of which were required by the statute of frauds to be made in writing in order to be valid. Act January 18, 1840, vol. 4, page 28; Hartley's Dig., art. 1451. We know of no case where the question has been directly involved which holds that it was necessary, in order to pass title to the wife's personal property (except slaves), that such sale should be evidenced by writing under a privy acknowledgment.
It has been repeatedly held that land certificates, before location, are personal property and subject to parol sale. Cox v. Bray, 28 Tex. 261, and authorities cited in our original opinion.
Under our views of the case, we do not hesitate to say that if it should be necessary to hold that the sale from Hamilton and wife to Stiles of an interest in the unlocated land certificate in 1843, the purchase money being paid and the subsequent location of the land in controversy by Stiles under the certificate, vested in him an equitable title to the land, we should be strongly inclined to that position.
But, inasmuch as that transaction was followed up by a deed from Hamilton and wife to Stiles, vesting in him the full legal and equitable title to the land, we feel satisfied that the justice of the controversy has been reached under the issues adjudicated below.
The motion for rehearing is overruled.
Overruled.
Writ of error refused. *Page 75