Roberts, Chief Justice.
The appellants brought a suit to recover from defendants an undivided half interest in a tract of three hundred and twenty acres of land. They claim, as surviving heirs of Margaret Fitzgerald, who, with her husband, Garrett Fitzgerald, inherited the said tract of land from their son, James Ewing Fitzgerald. The land, while thus jointly possessed and owned by them, was sold by Garrett Fitzgerald, the husband, by his deed executed to James H. McCarty on the 21st day of September, 1847, under whom the defendants hold by a regular chain of title, by recorded deeds, and by continuous possession from that date up to the bringing of this suit on the 26th of July, 1871. Margaret Fitzgerald died in 1853 or 1854, never having executed any deed for her interest; and her husband died afterwards and before the institution of this suit. The defendants, Turner and McClenden, filed separately general exceptions to the petition, a general denial^ and pleas of not guilty. Turner pleaded the statute of limitations of three, five, and ten years, and a special plea that the land was purchased by Garrett Fitzgerald with his own money, and that he had the title made to his son, James Ewing Fitzgerald, who held the same in trust for his father.
[83]*83The evidence relating to these pleas, thus separately filed by Turner, was not of a character to have justified a finding in his favor upon them, nor is it so insisted in the brief of his counsel.
The defendants joined in an amended answer, stating that Garrett Fitzgerald sold the land to McCarty for a negro woman; that the sale was made at the instance and request and for the benefit of Margaret Fitzgerald, iu order to procure a negro woman to wait on her; that she did have the use of the negro during the balance of her. life; that she afterwards expressed herself well satisfied with the trade; that she was fully aware that defendants and those under whom they held were putting upon the land valuable improvements, and suffered it to be done without objection ; that the negro woman lived with and served the family several years after the death of Margaret Fitzgerald, when the negro died. By all which facts it is contended that the said heirs of Margaret Fitzgerald are equitably estopped from now setting up claim to said land.
To this answer the plaintiffs excepted as insufficient, which exceptions were overruled. This ruling is assigned as error.
The evidence having been adduced, the jury was waived, the cause submitted to the court, and a judgment was rendered in favor of the defendants.
This action of the court is assigned as error, as being contrary to the law and the evidence.
The evidence was sufficient to sustain this answer of the defendants, and the important question in the case therefore is, do the facts set forth in the answer constitute a defense, either legal or equitable, to the cause of action alleged and proved by the plaintiffs ? We are of opinion that they do not.
The deed from Garrett Fitzgerald to McCarty discloses the fact that he derived title to the land from his son, James [84]*84Ewing, who was then dead. His wife was then living, which, as we may infer from the answer, was well known to McCarty. She is not alleged or proved to have made any representations to McCarty in reference to the ownership of the land, and therefore she said or did nothing calculated to deceive him or in any way mislead him in the matter. Bor is it shown that McCarty relied on anything that she said or did in making the trade and in taking the title from the husband, without requiring the wife to join in it.
It was not shown that the title to the negro woman was made to Margaret Fitzgerald, or that she ever claimed her as her separate property, or that she was so regarded and disposed of at her death in 1853 or afterwards.
The facts, then, upon which the defendants below are forced to rely, as the record is here presented, are that Garrett Fitzgerald sold the land to McCarty for a negro woman ; that Margaret Fitzgerald was willing to it, and desired it to be done for the specific object of getting the negro woman to wait on her; that she continued to be willing to it to the time of her death, and had the service of the negro woman in the family from the time of the trade as long as she lived, and knew that those who held the land were living on, improving, and using it as their own, during all which time she was the wife of Garrett Fitzgerald.
Such facts are not sufficient to pass the title to the land from her, or to estop her heirs from setting up claim to it. (Berry v. Donley, 26 Tex., 737; Cross v. Everts, 28 Tex., 532; Baily v. Trammell, 27 Tex., 328; Cravens v. Booth, 8 Tex., 243.)
These decisions hold, that for a married woman to convey her lands, so as to pass the title from her, she must do it according to the statute by a deed executed with a privy examination, unless by some fraudulent representation or act on her part, which is relied upon and acted on, she is estopped from setting up claim to the land.
[85]*85It is probable that the answer of the defendants in this case was drawn up and the case tried and determined in reference to and upon the authority of the case of Clayton’s Administrator v. Frazier, 33 Tex., 99. The facts in that case, as construed by the court, are much stronger than they are alleged and proved to be in this case. In the opinion in that case it is said that “ The evidence clearly establishes the fact that Mrs. Clayton signed the bond with her own free will and accord; that she treated the sale as bona fide up to the time of her death; that so much of the purchase-money as was paid in her lifetime she used in building a house on her homestead, and that she spoke of making Frazier a deed not long before her death.” Importance seems to have been here attached to the expenditure of the purchase-money on the homestead in which the wife had an interest. The opinion also quotes and relies on a part of the general remarks of Chief Justice Hemp-hill, in the case of Womack v. Womack, 8 Tex., 397, wherein he says: “ When the proof is clear as to the freedom of will on her part, and the transaction commends itself in point of equity to the conscience of the court, particularly if the party contracting with the wife cannot be restored to his former position, the conveyance will be sustained, notwithstanding the want of a privy examination under the statute.” However correct this proposition may be under the general principles of equity jurisprudence, it has not been sanctioned and acted on as the law of this State, nor was it in that very case in which it was announced, as will be seen by reference to the judgment which was rendered therein by the Supreme Court. The contrary doctrine was announced directly by Justice Moore, and practically enforced in a case directly involving that question, which was in the subsequent case of Berry v. Donley, 26 Tex., 737, and which has been subsequently followed as the settled law of this State, and so it is believed to be generally regarded up to the present time.
[86]*86In the ease of Womack v. Womack, the judgment of the court was that the administrator of Mrs.
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Roberts, Chief Justice.
The appellants brought a suit to recover from defendants an undivided half interest in a tract of three hundred and twenty acres of land. They claim, as surviving heirs of Margaret Fitzgerald, who, with her husband, Garrett Fitzgerald, inherited the said tract of land from their son, James Ewing Fitzgerald. The land, while thus jointly possessed and owned by them, was sold by Garrett Fitzgerald, the husband, by his deed executed to James H. McCarty on the 21st day of September, 1847, under whom the defendants hold by a regular chain of title, by recorded deeds, and by continuous possession from that date up to the bringing of this suit on the 26th of July, 1871. Margaret Fitzgerald died in 1853 or 1854, never having executed any deed for her interest; and her husband died afterwards and before the institution of this suit. The defendants, Turner and McClenden, filed separately general exceptions to the petition, a general denial^ and pleas of not guilty. Turner pleaded the statute of limitations of three, five, and ten years, and a special plea that the land was purchased by Garrett Fitzgerald with his own money, and that he had the title made to his son, James Ewing Fitzgerald, who held the same in trust for his father.
[83]*83The evidence relating to these pleas, thus separately filed by Turner, was not of a character to have justified a finding in his favor upon them, nor is it so insisted in the brief of his counsel.
The defendants joined in an amended answer, stating that Garrett Fitzgerald sold the land to McCarty for a negro woman; that the sale was made at the instance and request and for the benefit of Margaret Fitzgerald, iu order to procure a negro woman to wait on her; that she did have the use of the negro during the balance of her. life; that she afterwards expressed herself well satisfied with the trade; that she was fully aware that defendants and those under whom they held were putting upon the land valuable improvements, and suffered it to be done without objection ; that the negro woman lived with and served the family several years after the death of Margaret Fitzgerald, when the negro died. By all which facts it is contended that the said heirs of Margaret Fitzgerald are equitably estopped from now setting up claim to said land.
To this answer the plaintiffs excepted as insufficient, which exceptions were overruled. This ruling is assigned as error.
The evidence having been adduced, the jury was waived, the cause submitted to the court, and a judgment was rendered in favor of the defendants.
This action of the court is assigned as error, as being contrary to the law and the evidence.
The evidence was sufficient to sustain this answer of the defendants, and the important question in the case therefore is, do the facts set forth in the answer constitute a defense, either legal or equitable, to the cause of action alleged and proved by the plaintiffs ? We are of opinion that they do not.
The deed from Garrett Fitzgerald to McCarty discloses the fact that he derived title to the land from his son, James [84]*84Ewing, who was then dead. His wife was then living, which, as we may infer from the answer, was well known to McCarty. She is not alleged or proved to have made any representations to McCarty in reference to the ownership of the land, and therefore she said or did nothing calculated to deceive him or in any way mislead him in the matter. Bor is it shown that McCarty relied on anything that she said or did in making the trade and in taking the title from the husband, without requiring the wife to join in it.
It was not shown that the title to the negro woman was made to Margaret Fitzgerald, or that she ever claimed her as her separate property, or that she was so regarded and disposed of at her death in 1853 or afterwards.
The facts, then, upon which the defendants below are forced to rely, as the record is here presented, are that Garrett Fitzgerald sold the land to McCarty for a negro woman ; that Margaret Fitzgerald was willing to it, and desired it to be done for the specific object of getting the negro woman to wait on her; that she continued to be willing to it to the time of her death, and had the service of the negro woman in the family from the time of the trade as long as she lived, and knew that those who held the land were living on, improving, and using it as their own, during all which time she was the wife of Garrett Fitzgerald.
Such facts are not sufficient to pass the title to the land from her, or to estop her heirs from setting up claim to it. (Berry v. Donley, 26 Tex., 737; Cross v. Everts, 28 Tex., 532; Baily v. Trammell, 27 Tex., 328; Cravens v. Booth, 8 Tex., 243.)
These decisions hold, that for a married woman to convey her lands, so as to pass the title from her, she must do it according to the statute by a deed executed with a privy examination, unless by some fraudulent representation or act on her part, which is relied upon and acted on, she is estopped from setting up claim to the land.
[85]*85It is probable that the answer of the defendants in this case was drawn up and the case tried and determined in reference to and upon the authority of the case of Clayton’s Administrator v. Frazier, 33 Tex., 99. The facts in that case, as construed by the court, are much stronger than they are alleged and proved to be in this case. In the opinion in that case it is said that “ The evidence clearly establishes the fact that Mrs. Clayton signed the bond with her own free will and accord; that she treated the sale as bona fide up to the time of her death; that so much of the purchase-money as was paid in her lifetime she used in building a house on her homestead, and that she spoke of making Frazier a deed not long before her death.” Importance seems to have been here attached to the expenditure of the purchase-money on the homestead in which the wife had an interest. The opinion also quotes and relies on a part of the general remarks of Chief Justice Hemp-hill, in the case of Womack v. Womack, 8 Tex., 397, wherein he says: “ When the proof is clear as to the freedom of will on her part, and the transaction commends itself in point of equity to the conscience of the court, particularly if the party contracting with the wife cannot be restored to his former position, the conveyance will be sustained, notwithstanding the want of a privy examination under the statute.” However correct this proposition may be under the general principles of equity jurisprudence, it has not been sanctioned and acted on as the law of this State, nor was it in that very case in which it was announced, as will be seen by reference to the judgment which was rendered therein by the Supreme Court. The contrary doctrine was announced directly by Justice Moore, and practically enforced in a case directly involving that question, which was in the subsequent case of Berry v. Donley, 26 Tex., 737, and which has been subsequently followed as the settled law of this State, and so it is believed to be generally regarded up to the present time.
[86]*86In the ease of Womack v. Womack, the judgment of the court was that the administrator of Mrs. Womack, who had conveyed the' negro while under coverture to the overseer and manager of her separate property, in discharge of his services as such, being of the value of four hundred dollars, should recover the negro, to be delivered, however, upon the payment of the four hundred dollars due as overseer’s wages, for which the negro had been given.
This judgment was based, as we must suppose, upon the equitable principle that, as a suit had been brought in a court invested with equity powers, and the facts constituting an equitable cross-action had been fully set up in the answer, the administrator should be compelled to do equity before obtaining his legal right. Still the case, as actually decided, is a precedent in' harmony with the cases previously and subsequently decided in favor of enforcing the statutory mode of conveying a married woman’s real property by deed and privy examination.
It establishes in addition, also, that there may be facts and circumstances connected with such imperfect transfer of her separate property, the statute not being complied with, which, when set up in an equitable cross-action, will afford the opposite party equitable relief, and in a proper case enforce it as a condition precedent to the granting of a consummation of the legal right claimed and recognized.
The other case relied on in support of the decision of Clayton’s Administrator v. Frazier is the case of Dalton and Wife v. Rust et al, 22 Tex., 133. That ease, so far as it relates to this subject, decides that a wife, who with her husband had given a title bond in the sale of her separate estate in a tract of land on a credit, and had joined with her husband in procuring a judgment of the County Court, (acting as a court of probate,) ordering the sale of the same land, by which sale the entire balance of the original purchase-money was paid by the purchaser at the probate sale, was estopped thereby from resisting a specific [87]*87performance of the original contract of sale under the bond, and as confirmed by the probate sale, under the plea that she had not originally sold the land in accordance with the statute by deed and privy acknowledgment. She was estopped by her action in the County Court, by which she had induced Mrs. Dalton to purchase the land at the probate sale for a full consideration, paid according to the terms of the sale, which she had joined her husband in procuring by the judgment of a court of competent jurisdiction.
Thus it has been held by an unbroken chain of decisions of this court, with the exception of the case of Clayton’s Administrator v. Frazier, 33 Tex., 99, if that shall be regarded as an exception, that to pass the title of a married woman in the sale of her real property, it must be done in the mode prescribed by the statute, by deed and privy examination ; and that when it is not so done, she, or those claiming through or under her, may recover it by suit, unless estopped by some representations or acts on her part relied and acted on, so as to operate as a fraud upon the opposite party in the event of such .recovery. This, however, does not preclude equities from being set up and enforced when a proper case shall be presented, as was done in the case of Womack v. Womack, 8 Tex., 397. What facts would constitute a ground for such equitable relief must be determined when presented for adjudication, rather than be indicated in advance.
We are of the opinion that the judgment in this case is erroneous, and that it must be reversed and the cause be remanded.
Reversed and remanded.