Cannon v. Boutwell

53 Tex. 626, 1880 Tex. LEXIS 116

Opinion

Gould, Associate Justice.

Appellant’s title to the land sued for depended on the validity of a power of attorney, executed and privily acknowledged by Mary C. Fisher, in October, 1856, authorizing her husband, George Fisher, to sell and convey, for her benefit, the land now in controversy, being her separate property, and upon a conveyance of said land by George Fisher, acting for himself, and for his wife under said power of attorney, made February 5, 1858.

The district court held these instruments insufficient to divest the wife’s title; and in our opinion the court did not err in so ruling.

A deed, or power of attorney, signed by the wife alone, is not such an instrument as the statute makes effective to pass her estate. The decisions under similar statutes have been uniform in holding the separate conveyance of the wife invalid, notwithstanding it may have been clearly shown that she acted with her husband’s assent. Trimmer v. Heagy, 16 Pa. St., 484; Sexton v. Pickering, 3 Rand., 468; Baxter v. Bodkin, 25 Ind., 172; Fowler v. Shearer, 7 Mass., 14; Whitaker v. Blair, 3 J. J. Marshall, 236; 1 Bishop on Law of Married Women, sec. 593, and authorities cited in note 1.

So, whilst the husband and wife may, by executing and acknowledging the instrument in the mode prescribed for conveyances, empower an agent to convey her separate estate (Patton v. King, 26 Tex., 686), the power of attorney, although clearly assented to by the husband, will be ineffectual if made by the wife alone. The statute does not attempt to provide for either conveyances or powers of attorney from the wife to the husband, and we think it would be a departure from the policy of the law, wholly unauthorized by anything in the statute, to allow the husband, by means simply of a general power of attorney from the wife, to dispose of her separate estate at his will.

Affirmed.

[Opinion delivered November 16, 1880.]