Cannon v. Boutwell

Texas Supreme Court

Cannon v. Boutwell

53 Tex. 626, 1880 Tex. LEXIS 116

CourtTexas Supreme Court

DecidedNovember 16, 1880

DocketCase No. 969

StatusPublished

Cited by19 cases

This text of 53 Tex. 626 (Cannon v. Boutwell) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cannon v. Boutwell, 53 Tex. 626, 1880 Tex. LEXIS 116 (Tex. 1880).

Pincite

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 hus[628]*628band, 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.]

Free access — add to your briefcase to read the full text and ask questions with AI

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 hus[628]*628band, 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.]

Cite This Page — Counsel Stack

Bluebook (online)

53 Tex. 626, 1880 Tex. LEXIS 116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cannon-v-boutwell-tex-1880.

Opinion

Related

Cite This Page — Counsel Stack