TARLTON, Judge,
Section
B. — This is an appeal from a judgment rendered by the District Court of Runnels County, in favor of R. K. Wylie and of R. M. and H. A. Thompson.
The suit, in trespass to try title, was brought May 29, 1889, by F. Auerbach, Constantine Kohlleffel and her husband C. F. Kohlleffel, and Ida Schmidt and her husband F. Schmidt, against E. K. Wylie, to recover an undivided interest of 246f acres in the Auerbach 640 acres survey in Eunnels County. The appellees Thompson were made parties defendant as warrantors of the appellee Wylie.
The plaintiffs and appellants claim as children and heirs at law of August Auerbach, deceased. The initial link in the appellees’ chain of title is a conveyance of the certificate by virtue of which the survey was located, by Louisa Hammer and A. Hammer, the former alleged to be the surviving wife of August Auerbach. The certificate was the community property of August Auerbach and his wife Louisa. August Auerbach and his wife Louisa immigrated to Texas as German colonists, about the year 1846, by virtue of the colonization contract of Fisher and Miller. August Auerbach became thus entitled as the head of a family to the certificate in question. After his arrival in this country August Auerbach died, in the latter part of 1846 or in the early part of 1847. He left his widow Louisa and five children, three of them the plaintiffs in this suit. In 1848 or 1849 the widow Louisa married a second husband, Antone Hammer.
May 11, 1850, the certificate in question was issued to the “heirs of August Auerbach, deceased.” September 13, 1851, this certificate was transferred to Henrich Zehner, by written conveyance of Andres Hammer and Louisa Hammer, the instrument being signed by A. Hammer and Louisa Hammer. It was filed for record in Funnels County, July 3, 1883. July 16, 1874, the certificate was located on the 640 acres tract in question. May 17, 1875, by virtue of the certificate in question, patent issued to the “heirs of August Auerbach, deceased.”
Appellees claim under the deed to Henrich Zehner, and contend that it was executed by the surviving wife Louisa Hammer, joined pro forma by her husband A. Hammer, in payment of the community debts of herself and her former husband, August Auerbach. The jury trying the case so found.
Appellants’ first assignment of error presents the question of the admissibility in evidence of this deed to Zehner.
The instrument, as already stated, is signed by “A. Hammer” and “LouisaHammer.” On its face it purports to be executed by Andres Hammer and his wife Louisa Hammer. In describing the property sold, it recites, that “the said certificate is known to be the headright of August Auerbach, first husband of Louisa Hammer.” The deed recites “a consideration of $100 to us in hand paid,” and to it is attached a receipt, dated September 17, 1851, by A. Hammer, for $100, the money referred to in the deed. Objection was urged to the introduction of the deed, on the ground that there was no evidence indicating that the grantor, Louisa Hammer, was the surviving wife of
August Auerbach. This obj ection rests upon the fact that Louisa Auerbach had married
Antone
Hammer, and not
Andres
Hammer, the name of the husband stated in the deed. If there was evidence showing that Andres and Antone Hammer was the same person, there can be no merit in this objection. This identity, we think, is indicated by the recital in the deed that August Auerbach was the first husband of Louisa Auerbach, the wife, at the date of the instrument, of Andres Hammer. For the purposes of identification, recitals in deeds are admissible as original evidence, when including facts of birth, marriage, and death. Chamblee v. Tarbox, 27 Texas, 140; Russell v. Oliver, 78 Texas, 16.
The court properly permitted the jury to determine the question whether the Louisa Hammer who signed the deed as the wife of Andres Hammer was the same person as the Louisa Auerbach who married Antone Hammer after the death of August Auerbach.
A more serious objection to this instrument, however, is suggested in appellant’s first assignment of error, and relied on in their brief. Appellees contend that the deed conveyed the title to the entire certificate, including the community interest of August Auerbach, because it was executed by the surviving wife in payment of community debts. Appellant’s reply, that after and during her marriage with Hammer, the grantor Louisa was deprived of her powers as the surviving wife of Auerbach, and was incapable of conveying his interest in the community property even in payment of community debts.
Adhering to the opinion of this court in the case of Davis v. McCartney, 64 Texas, 588, we sustain the objection to the deed on the ground last stated as urged by appellants. In that case, the conclusion is reached that the powers of the surviving wife ceased with her widowhood, as well with reference to the equitable as to the legal title to community property. Her freedom of agency is, in the eyes of the law, so absorbed in the will of her husband that she is deemed to be incapacitated “to successfully wind up the connubial partnership she has so effectually put behind her.”
We concur in the reasoning of the court in the case cited. In this instance we find a practical illustration of its force. As shown by the receipt attached to the deed to Zehner, the latter paid the purchase money of the certificate to the husband Hammer. This fund was thus placed subject to his exclusive control and disposition; though to the extent of the half-interest belonging to the estate of August Auerbach, he was an utter stranger.
It can not be said with entire accuracy that the husband is but a formal party to the deed. While in one sense this may be true, it is nevertheless also true, that without his co-operation the deed of the wife is a nullity. His concurrence in the execution of the deed is essential to its validity. He thus becomes active in the disposition of
property in which he has no interest. The power exerted by the wife is not and could not be exercised by herself alone, but by her through and under the co-operation of her husband. The law correctly imputes to the husband such control over the wife, springing from the marital relation, as should deprive her of the power of executing deeds in payment of the debts of a former community. The case cited arose after the Act of 1876, which provides, that in the event of a second marriage by the wife her power as a survivor should cease. The case itself, however, involved a transaction not by a surviving wife who had qualified under that statute, but by one who had acted independently; and the reasoning of the court clearly indicates that its opinion was in no way due to the provisions of that statute.
Appellants complain of the following paragraph of the court’s charge: “You are instructed, that if you find from the evidence that plaintiffs are the surviving children of August and Louisa Auerbach, then you will find for plaintiffs for the land sued for; unless you find that the deed from Louisa and A.
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TARLTON, Judge,
Section
B. — This is an appeal from a judgment rendered by the District Court of Runnels County, in favor of R. K. Wylie and of R. M. and H. A. Thompson.
The suit, in trespass to try title, was brought May 29, 1889, by F. Auerbach, Constantine Kohlleffel and her husband C. F. Kohlleffel, and Ida Schmidt and her husband F. Schmidt, against E. K. Wylie, to recover an undivided interest of 246f acres in the Auerbach 640 acres survey in Eunnels County. The appellees Thompson were made parties defendant as warrantors of the appellee Wylie.
The plaintiffs and appellants claim as children and heirs at law of August Auerbach, deceased. The initial link in the appellees’ chain of title is a conveyance of the certificate by virtue of which the survey was located, by Louisa Hammer and A. Hammer, the former alleged to be the surviving wife of August Auerbach. The certificate was the community property of August Auerbach and his wife Louisa. August Auerbach and his wife Louisa immigrated to Texas as German colonists, about the year 1846, by virtue of the colonization contract of Fisher and Miller. August Auerbach became thus entitled as the head of a family to the certificate in question. After his arrival in this country August Auerbach died, in the latter part of 1846 or in the early part of 1847. He left his widow Louisa and five children, three of them the plaintiffs in this suit. In 1848 or 1849 the widow Louisa married a second husband, Antone Hammer.
May 11, 1850, the certificate in question was issued to the “heirs of August Auerbach, deceased.” September 13, 1851, this certificate was transferred to Henrich Zehner, by written conveyance of Andres Hammer and Louisa Hammer, the instrument being signed by A. Hammer and Louisa Hammer. It was filed for record in Funnels County, July 3, 1883. July 16, 1874, the certificate was located on the 640 acres tract in question. May 17, 1875, by virtue of the certificate in question, patent issued to the “heirs of August Auerbach, deceased.”
Appellees claim under the deed to Henrich Zehner, and contend that it was executed by the surviving wife Louisa Hammer, joined pro forma by her husband A. Hammer, in payment of the community debts of herself and her former husband, August Auerbach. The jury trying the case so found.
Appellants’ first assignment of error presents the question of the admissibility in evidence of this deed to Zehner.
The instrument, as already stated, is signed by “A. Hammer” and “LouisaHammer.” On its face it purports to be executed by Andres Hammer and his wife Louisa Hammer. In describing the property sold, it recites, that “the said certificate is known to be the headright of August Auerbach, first husband of Louisa Hammer.” The deed recites “a consideration of $100 to us in hand paid,” and to it is attached a receipt, dated September 17, 1851, by A. Hammer, for $100, the money referred to in the deed. Objection was urged to the introduction of the deed, on the ground that there was no evidence indicating that the grantor, Louisa Hammer, was the surviving wife of
August Auerbach. This obj ection rests upon the fact that Louisa Auerbach had married
Antone
Hammer, and not
Andres
Hammer, the name of the husband stated in the deed. If there was evidence showing that Andres and Antone Hammer was the same person, there can be no merit in this objection. This identity, we think, is indicated by the recital in the deed that August Auerbach was the first husband of Louisa Auerbach, the wife, at the date of the instrument, of Andres Hammer. For the purposes of identification, recitals in deeds are admissible as original evidence, when including facts of birth, marriage, and death. Chamblee v. Tarbox, 27 Texas, 140; Russell v. Oliver, 78 Texas, 16.
The court properly permitted the jury to determine the question whether the Louisa Hammer who signed the deed as the wife of Andres Hammer was the same person as the Louisa Auerbach who married Antone Hammer after the death of August Auerbach.
A more serious objection to this instrument, however, is suggested in appellant’s first assignment of error, and relied on in their brief. Appellees contend that the deed conveyed the title to the entire certificate, including the community interest of August Auerbach, because it was executed by the surviving wife in payment of community debts. Appellant’s reply, that after and during her marriage with Hammer, the grantor Louisa was deprived of her powers as the surviving wife of Auerbach, and was incapable of conveying his interest in the community property even in payment of community debts.
Adhering to the opinion of this court in the case of Davis v. McCartney, 64 Texas, 588, we sustain the objection to the deed on the ground last stated as urged by appellants. In that case, the conclusion is reached that the powers of the surviving wife ceased with her widowhood, as well with reference to the equitable as to the legal title to community property. Her freedom of agency is, in the eyes of the law, so absorbed in the will of her husband that she is deemed to be incapacitated “to successfully wind up the connubial partnership she has so effectually put behind her.”
We concur in the reasoning of the court in the case cited. In this instance we find a practical illustration of its force. As shown by the receipt attached to the deed to Zehner, the latter paid the purchase money of the certificate to the husband Hammer. This fund was thus placed subject to his exclusive control and disposition; though to the extent of the half-interest belonging to the estate of August Auerbach, he was an utter stranger.
It can not be said with entire accuracy that the husband is but a formal party to the deed. While in one sense this may be true, it is nevertheless also true, that without his co-operation the deed of the wife is a nullity. His concurrence in the execution of the deed is essential to its validity. He thus becomes active in the disposition of
property in which he has no interest. The power exerted by the wife is not and could not be exercised by herself alone, but by her through and under the co-operation of her husband. The law correctly imputes to the husband such control over the wife, springing from the marital relation, as should deprive her of the power of executing deeds in payment of the debts of a former community. The case cited arose after the Act of 1876, which provides, that in the event of a second marriage by the wife her power as a survivor should cease. The case itself, however, involved a transaction not by a surviving wife who had qualified under that statute, but by one who had acted independently; and the reasoning of the court clearly indicates that its opinion was in no way due to the provisions of that statute.
Appellants complain of the following paragraph of the court’s charge: “You are instructed, that if you find from the evidence that plaintiffs are the surviving children of August and Louisa Auerbach, then you will find for plaintiffs for the land sued for; unless you find that the deed from Louisa and A. Hammer to Zehner, dated September 13, 1851, conveyed the whole of the land certificate by virtue of which said land was located; and in this connection you are instructed, that if the said Louisa Hammer was the surviving wife of August Auerbach, and she made said sale for the purpose of paying debts of the community estate, or to reimburse her for her separate estate, expended in paying said debts, then the said deed conveyed title to the whole of said certificate, and in that event you will find for the defendants.”
The foregoing charge is assailed as involving an assumption by the court that Louisa Hammer was the surviving wife of August Auerbach, and as inferentially instructing the jury that the certificate had been sold by the surviving wife for the purpose of paying debts or of reimbursing her for her separate means expended in paying debts. The charge does not merit the criticism. The identity of Louisa Hammer, the existence of community debts and of the remaining conditions referred to, were fairly submitted to the jury for their determination.
Appellants further complain of the following paragraph of the court’s charge: “In determining whether there were community debts at the death of August Auerbach, you will take into consideration the great lapse of time since said deed to Zehner was made, and thát plaintiffs have made no claim to the land in controversy, and that defendant and his grantors have held possession of said certificate, and after so great lapse of time the jury are at liberty to presume that there were community debts, unless the evidence affirmatively shows that there were no debts.”
It is insisted that this charge is on the weight of evidence; that the court assumes as facts the great lapse of time since the execution of the deed to Zehner, the absence of claim by the plaintiffs to the land in
controversy, and the possession by the defendant and his grantors of the certificate.
In the recent case of Hensel v. Kegans, 79 Texas, 347, it appears that a headright certificate issued to a married man, and that in 1855, five years after his wife’s death, he transferred it to the plaintiffs, to whom the patent was issued in 1858. The suit was brought in 1887, and it was held by this, court, that after so great a lapse of time the presumption of fact might be indulged that the certificate was sold in payment of community debts. This presumption would have to be rebutted by evidence on the part of the defendants.
In the present case, the record presents the fact of great lapse of time as undisputed, and the court was therefore authorized to assume its existence, and to instruct the jury with reference to the presumption flowing therefrom. As the lapse of time alone was sufficient to justify the instruction, reference to the remaining facts, the absence of claim by the plaintiffs, and the possession of the certificate by the defendant, was superfluous, and, if erroneous, harmless.
As, however, the deed to Zehner was erroneously admitted, these instructions are without support.
The judgment should be reversed and the cause remanded.
Reversed and remanded.
Adopted May 17, 1892.