Blevins v. Cameron & Mayfield

Opinion — The plaintiffs’ petition admitted that the wife had the title to the lots at the time of the transaction with her husband in relation to the sale of the lumber, nor does the petition attempt to qualify the implication from that admission that she was the legal and equitable owner of the property. The averments in the pleadings of a party will be taken most strongly against him.

Indeed, so far from seeking to charge the property to be community property^ notwithstanding the fact that the title was held as they allege, the plaintiffs rest their right to subject the property to their supposed lien upon the wife’s knowledge and silence or acquiescence in the acts of her husband in contracting for and making improvements upon her property, and not upon the allegation that it was, in fact, property belonging to the community. The question is whether the facts which are alleged show a cause of action against the wife to subject her property to sale for the payment of the debt contracted by the husband for lumber to improve it. See Warren v. Smith, 44 Tex., 245; Magee v. White, 23 Tex., 180. See, also, third section of the act referred to, article 46-13. There was no averment in the ' petition of agency, or that it was her contract. Chief Justice Hemphill, says: “A fundamental principle in relation to suits to bind the separate estate of the wife is this: that such estate cannot be held unless in cases clearly, strictly and fully authorized by the statutes or the equitable principles of the laws of the land.” McFadden v. Crumpler, 20 Tex., 376. This rule was re-affirmed in Stansberry v. Nichols, 30 Tex., 149; Brown v. Ector, 19 Tex., 346; Haynes v. Stovall, 23 Tex., 625.

To affect the wife’s homestead rights it would be necessary that her consent be evidenced in the mode prescribed by law for the alienation of her separate property. Gaylord v. Loughridge, 50 Tex., 576; Campbell v. Fields, 35 Tex., 754.

In the charge of the court below the jury are instructed that if the plaintiffs were otherwise entitled to recover for their debt, they would also be entitled to have a lien upon the property described in the petition. The defendants excepted to the charge in these respects, by asking instructions which presented counter propositions of law, which were refused. ¡Neither the charge nor the instructions need be more specifically stated. The jury were, of course, misled in following the charge, to a wrong result, to the injury of appellants.

¡Reversed and remanded.