The appellee seeks to set aside the deed purporting to have been made by herself and her deceased husband, on the grounds:
First. Because her husband was of unsound mind, and hence incapable of contracting, at the time the deed was executed.
Second. Because of alleged fraud in the manner in which her signature to the deed was obtained and want of privy examination.
The property in controversy constituted a part of the homestead of the appellee and her husband at the time the deed purported to have been executed.
The jury were instructed very fully in reference to the mental condition of the husband at the time the deed was executed, which would authorize the setting aside of the deed on the ground of his want of capacity to contract at the time the deed was made.
It would be unprofitable to set out in this opinion the evidence before the jury tending to show that H. 0. Thomas was non compos mentis at the time the deed was executed.
The evidence offered to show the mental condition of H. C. Thomas at the time the deed was executed, and especially that of his family physician and two others, is such as would fully have justified the finding that his mental condition was such as to deprive him of capacity to contract; and that there was evidence tending to a different conclusion furnishes no reason why, in disregard of well settled rules, this court should refuse to regard the finding of the jury conclusive on that question.
This renders it unnecessary to consider the other ground on which relief was sought, unless it be true that, if such was the mental condition of the husband, the deed of the wife alone would be sufficient to pass title to the property.
In a number of cases the right and power of a wife who has been abandoned by her husband to sell, without being joined by him, her separate estate, as fully and in the manner that a feme sole may, *290has been recognized, as has been her right and power to sell, when thus situated, the common property, when necessary to the maintenance of herself and family. Wright v. Hays, 10 Tex., 135; Cheek v. Bellows, 17 Tex., 617; Fullerton v. Doyle, 18 Tex., 13; McAfee v. Robertson, 41 Tex., 358; Kelley v. Whitmore, 41 Tex., 648; Ann Berta Lodge v. Leverton, 42 Tex., 18; Walker v. Stringfellow, 30 Tex., 573.
The reason for the rule is clearly given in these oases; when the power exists, and to what extent it may be used, is also indicated.
In Wright v. Hays it is said, “ His desertion and absence are the foundation of her new rights and authority. His absence or civil death are prerequisites to the acquisition of these rights by the wife.” "
In Cheek v. Bellows it was said, “ She and her children are entitled to a support from the property, and if the husband is absent there is no reason nor rule of law that would prohibit the wife from making a contract to meet the necessities of the case. It would be a strong case that would permit her to go further.”
In the case of Forbes v. Moore, 32 Tex., 200, it seems to have been held that, during the insanity of a husband, the wife might dispose of so much of the common property, or, in case there be none, of so much of the separate property of the husband, as might be necessary to supply the wants of herself and their children. It does not appear in that case that the wife had disposed of any property, and the remarks made in the course of the opinion, so far as we can see from the report of the case, were not necessary to the decision of the cause.
If the rule as stated in that case were the true one, it however would not be broad enough to sustain the sale in this case as the sole act of the wife.
The property named in the deed was a part of the homestead of the family, and was the only property belonging to the husband and wife from which any revenue could be derived.
There seems to have been a business house on the lot described in the deed, which the husband, a merchant, used as his place of business, which was of the rental value of $40 or $50 per month, and the consideration for the deed to the appellant was a debt due to him from the husband.
If such a rule existed, it could only spring from the necessity of the family to have a support; to which the sale, in the case under consideration, could in no manner have contributed. Fpon the contrary, such a sale would have deprived the family of the only piece of property which could have contributed to its support.
*291We are of the opinion, however, that no such power rests in the wife of an insane person, at least in reference to community property or the separate property of the husband.
The law provides for just such a case, and renders unnecessary the exercise of any such power by the wife.
The law provides for the appointment of guardians of the estates of persons of unsound mind, and habitual drunkards, as well as for the appointment. of guardians of their persons. R. S., 2653-2670.
Article 2661, R. S., provides that: “ The court by which any per: son of unsound mind or habitual drunkard is committed to guardianship may make orders for the support of his family and the education of his children when necessary.” The general provisions applicable to other guardians are made applicable to the guardians of such persons and their estates so far as they may be applicable. R. S., 2660.
In respect to the separate property of a married woman, the statute provides that the husband and wife shall join in its conveyance. R. S., 559.
Whether a deed made by a husband and wife of the wife’s separate property could be sustained, the husband being insane at the time of its execution, was considered in the case of Leggate v. Clark, 111 Mass., 308. In the course of the opinion the court said: “ In the case at bar the husband joined in the deed of conveyance, but the jury have found that at the time he did so he was insane. Such consent was of no effect. The statute was designed, not only to enlarge the powers of the wife, but also to guard her interests by requiring the sanction and assent of her husband to the conveyance. It contemplates the intelligent assent of a sound mind, capable of contracting and advising; otherwise it loses its character as a protective enactment for the benefit and security of the wife’s interests. The special provision that, in case of the husband’s insanity, the assent of a judge of the supreme judicial, superior or probate court may be substituted for his, strengthens this conclusion, showing that it was the understanding of the legislature that the assent of an insane husband would not give validity to the deed of a wife.” It is unnecessary to consider such a question in this case, and we refer to the ease cited above to show how the insanity of a husband is regarded, in so far as it affects the validity of a conveyance which the law requires to be made by both the husband and wife.
There are two bills of exception found in the record, having reference to remarks of counsel in the argument of the cause in the court below; one of them is signed and filed by the judge, and the *292other is signed and sworn to by three persons who were citizens of the state.
The trial occurred on March 5, 1884, and the paper purporting to be a bill of exceptions, last mentioned, was sworn to, on March 12th, and filed on March 13th. The judge who tried the cause refused to sign or allow it as a bill of exceptions, but directed it to be filed.
This paper does not show that the persons who signed it were present when the facts in dispute occurred, and it does not appear that the certificate which they gave was given at the time the occurrence to which it relates transpired.
These things are requisite, and if for no other reason, for the want of these the paper cannot be recognized as a bill of exceptions. Houston v. Jones, 4 Tex., 170.
The remarks of counsel, contained in the bill of exceptions signed by the judge, while in form very complimentary to the appellant, were evidently not so intended and should not have been used; but it appears that the remarks of counsel for the appellant to which they were a reply were but little, if at all, less objectionable.
In such cases an appellant, who through his counsel has provoked the language used, is not in a situation to ask the reversal of a judgment on such a ground.
There is no error in the judgment, and it is affirmed.
Affirmed.
[Opinion delivered February 13, 1885.]