Concurring Opinion Overruling, Motion for Re-Hearing.
PRICE, Chief Jxistice.Careful and painstaking consideration has been given to appellants’ motion for a re-hearing, but the majority has concluded that same is without merit. Beyond any question the property involved was the separate property of the wife.. Section 15, art. 16, Vernon’s Ann. St. Constitution defines the separate property of the wife and provides that
“laws shall be passed more clearly defining the rights of the wife, in relation as well to her separate property as that held in common with her husband * * *.”
Section .15, art. 16 was amended by a provision going into effect November 2, 1948, but such amendment made no change as to the matters here involved. Art. 1299, Vernon’s Ann.Civ.St. provides in substance as follows:
“The husband and wife shall join in the conveyance of real estate, the separate property of the wife; and no such conveyance shall take effect until the same shall have been acknowledged by her privily and apart from her husband before some officer authorized by law to take acknowledgments to deeds for the purpose of being recorded, and certified to in the mode pointed- out in articles 6605 and 6608.”
It is elementary that a married woman under the circumstances here involved is without power to bind herself or her separate estate by an executory contract to convey same in the future. The case of Hammett v. Farrar, Tex.Civ.App., 8 S.W.2d 236 (writ denied) well illustrates this principle. In the case of Blakely v. Kanaman, 107 Tex. 206,. 175 S.W. 674, 675, in speaking of art. 1114, Revised Statutes of 1911, which is in all material respects the same as art. 1299, R.S.1925, it is said:
“This statute empowers her to convey such property when joined by her *482husband and her acknowledgment is privily taken, but it recognizes no obligation resting upon her in. virtue of a mere contract to convey unless it can be properly held that the power to convey imports the authority to contract to convey, this contract was not enforceable against Mrs. Kanaman.”
The question to be determined here is did or did not the wife consummate an act in law which was tantamount to a conveyance ? In the case of Angier v. Cowerd, 79 Tex. 551, 15 S.W. 698, 700, the appellee, Mrs. Angier, a married woman, executed a bond for title to convey her separate property. The consideration was the sum of $100 cash and two promissory notes for $200 due respectively one and two years after date. This contract was duly acknowledged by the appellant, Mrs. Angier. It seems Cowerd paid $100 and executed the notes. In the suit Mrs. Angier sought to repudiate the transaction. It was held, in brief, that in her privy acknowledgment before the Notary Mrs. Angier had barred herself from a retraction. In the course of the opinion Judge Hobby said:
“There is, in our opinion, a broad distinction between the [conveyance of the homestead and the conveyance of a wife’s separate property], which we are not called upon to discuss. There are constitutional provisions relating to' the sale of the homestead which plainly show that its conveyance by the husband and wife was not to be governed by the same rules that apply to the conveyance of the separate property of the wife.”
In the instant case the d'eed executed by the wife was properly acknowledged, a sufficient act in law as vesting the title to the real estate in question in the plaintiff. — in short, the wife had completely performed her part of the contract. The appellee was bound to perform, conditioned only on a good title being shown by the abstract. There arises then the question as to delivery of the deed. If a married woman cannot effect a delivery of a deed then she has not the power to convey.
When she caused the deed' to be deposited with the bank she did not provide in the instrument accompanying same that she should’have a right to repossess same. It could hardly be said that this was not a consummated transaction if appellee had paid the sum of money provided and taken the deed. In consideration for her deed she acquired appellee’s unconditional promise to pay if the title were good, and his acceptance of a draft representing the purchase money. The deed was held to await the performance by the grantee to have the instrument take effect according to its import. She actually lost control of the deed. This is perhaps not sufficient — the question is, was it intended that the instrument pass beyond her control? It is hard to conceive where a married woman’s separate property is not conveyed in pursuance of a contract, the legal consequences of a woman voluntarily taking steps effective in law and her agreeing to do so in the future are not the same. 'In the first case she consummates an act effective in law, and in the second she merely agrees to consummate the act effective in law. Here she has, we think, by the execution of her deed, properly acknowledged and placed with the escrow agent beyond control, consummated an act in law which she asks the trial court to undo. This is a genuine escrow. See Day v. Townsend, Tex.Com.App., 238 S.W. 213. Unless her definite intention was to place the deed in question beyond her control why deposit same with a third party with instructions to deliver. It is hardly conceivable that a married woman would or could convey her property without a contract or agreement of some sort. The agreement is unenforceable, but when the wife executes and delivers a deed in pursuance of such unenforceable contract the conveyance is effective as to her title.
It is ordered that the motion for rehearing be in all things overruled.