We reverse the judgment of the court below and remand the case for further trial, for the following reasons:
1. The contract between J.C. Walker and Dr. Owen, and what occurred between them with reference to the attempted conveyance of the land in controversy to Walker by Owen, was not admissible in evidence. Neither the declarations and statements of Dr. Owen adversely to the interest of his wife in her separate property, nor the attempted conveyance or transfer by him of the bond for title without her joining in its executions, would be admissible against his wife if she was seeking to recover her separate estate, and the same rule applies where her heirs are seeking their inheritance from her. What rights in her separate property remained undisposed of at the time of her death, descended to her heirs, and the existence of facts that would authorize her to recover if she had sued before her death would authorize her heirs to recover. McKay v. Treadwell, 8 Tex. 178; Clapp v. Engledon, 72 Tex. 254, s.c., 82 Tex. 293 [82 Tex. 293]; Blois v. Findly, 75 Tex. 210.
The statute, it is true, gives the husband the authority to control and manage the separate estate of the wife, and to this extent he is in law her agent, but that power does not authorize him to dispose of her property except in the way pointed out by law, which must be by her consent expressed in the manner required by the statute regulating the conveyance of the separate property of the wife. Kempner v. Comer, 73 Tex. 199.
2. The statements of Maddox to the effect that he was the agent of Dr. and Mrs. Owens was not admissible for the purpose of proving *Page 287 agency. Agency must be proven independently of the declarations of the agent.
3. The deed executed by Mrs. Owen to J.C. Walker was not admissible in evidence. Her husband did not join with her in its execution, although it may be inferred from the facts that he assented to its execution. Cannon v. Boutwell, 53 Tex. 627; Ford v. Ballard, 1 Texas Civ. App. 378[1 Tex. Civ. App. 378]. The court below admitted the deed not as proving title, but upon the issue of estoppel. This was upon the theory as contended for by appellee, that Mrs. Owen, the ancestor of appellants, was estopped from urging her title to the land for the reason that she knew of the contract previously made by her husband with Walker and that she tacitly assented thereto and that she long acquiesced in the terms of that trade and to the conveyance in question, and that she had received the purchase money for the land.
Without determining whether the evidence in any of these particulars supports the contention of appellee, we may concede that if it did, it would not establish an estoppel against Mrs. Owen. In order for estoppel to bar a married woman in the assertion of her rights to her separate property, she must be guilty of fraud. Simply receiving the profits of an illegal sale with knowledge of its execution, and assenting thereto with an accompanying failure to promptly assert her title, is not the character of fraud that will estop her. Smith v. Powell, 23 S.W. Rep., 1112; Ford v. Ballard, 1 Texas Civ. App. 378[1 Tex. Civ. App. 378], and cases cited; Stone v. Sledge, 24 S.W. Rep., 698. In Johnson v. Bryan, 62 Tex. 626 [62 Tex. 626], it is said: "To estop a married woman from asserting her rights to land, it is essential that she should be guilty of some positive act of fraud, or else of some act of concealment or suppression which in law would be equivalent thereto."
4. The judgment obtained by Walker against the heirs of Slaughter was not admissible against those that are seeking to recover the separate estate of Mrs. Owen. Mrs. Owen was not a party to that judgment and she could not be affected by it. The alleged contract between Walker and Dr. Owens under which that judgment was obtained could not operate to pass the title of Mrs. Owen and vest it in Walker. The court below held that this judgment placed the legal title in Walker, who held it in trust for Mrs. Owen, and he being vested with the legal title could convey. Mrs. Owen had the title independent of this judgment, and it was vested in her prior to the time the judgment was obtained. We are at a loss to know what theory or principle of law will divest her of this title and lodge it in another without her consent being first obtained in the manner required by law, or give effect to a judgment to which she is not a party that places the title to her property in another.
5. We are of the opinion that the instrument executed by Francis Slaughter to Ethan Stroud conveyed a title to the land. This instrument was executed when the civil law was in force and we think falls within the ruling made in Gainer v. Cotton,49 Tex. 120. It contains *Page 288 words of bargain and sale, with a further promise to make another conveyance when the patent should issue. In the case cited it appears that the consideration was paid, while in this case there is no express finding or evidence showing that all the consideration was paid. But, in view of the fact that, since the execution of this instrument in 1838, Slaughter nor his heirs have ever asserted against it or claimed any of the land in controversy, but upon the contrary recognized that it conveyed title when they submitted to the judgment against them in the suit by Walker on that instrument when he urged it as the title to the land, we can, from these facts and the long lapse of time since its execution, presume that the consideration was fully paid. Walker v. Emerson, 20 Tex. 707; 2 Greenl. Ev., secs. 527-528; 2 Whart. Ev., 1360 to 1365; 18 Am. Eng. Encyc. Law, 207. But, admitting for argument's sake that the instrument is a bond for title, and only passes an equitable title to the land, this concession would not defeat the appellants' right to recover. The suit of appellee, it is true, is one for rescission and removal of cloud, but the appellants in reply thereto pleaded that they were the owners in fee simple of the land sued for and ask for their judgment for the same. This, in effect, so far as they were concerned, became an action of trespass to try title, and the provisions of the law regulating that remedy would apply. As held in Wright v. Dunn, 73 Tex. 296, and the Hyland case, 28 S.W. Rep., 210, an action of trespass to try title may be maintained on a bond for title; and the latter case held that, although the title may be equitable, stale demand will not defeat it. If suit in trespass to try title is brought on an instrument of this character against trespassers and strangers to it, evidence of payment of the consideration stated in the bond for title is not essential to the right of recovery. Wright v. Dunn,73 Tex. 295; Ann Berta Lodge v. Leverton,42 Tex. 18.
If the appellees do not fall within this class, as before said, the law under the facts of the case, and owing to the long time that has elapsed since the execution of the bond, will presume that payment of the recited consideration was made.
6. The disposition that we have made of the several questions discussed would probably settle the case and require us to render judgment in favor of appellants, but, in view of the fact that there is some evidence that speaks of a partition between Mrs. Owen and Mrs. Maddox, we have concluded to reverse and remand the entire case.
Reversed and remanded
ON MOTION FOR REHEARING.