Hemphill, C J.
To recapitulate the pleadings, or comment upon the anomalies and contradictory phases assumed by the parties, would be as irksome as unprofitable.
Without this waste of time and effort, we will proceed to state the most material facts, as adduced in evidence, and adjudge the law of the case as it arises on those facts.
These show that that the plaintiff was, in 1850, abandoned by her husband, who was last heard of in California ; that she received no support from him for herself and three children, and had no separate property ; and there was no property of any kind belonging to the husband in Texas, or to the plaintiff, his wife, or their children, except the land in suit, which was community property, and had been the homestead of the family. The husband removed the family from their homestead in 1850, without having provided another ; at least there is no proof to that effect. The presumption is strong, it may be said, conclusive to the contrary ; it being in proof that she was destitute of the means of subsistence, and dependent on the charities of strangers for a support. Under these circumstances, the plaintiff contracted for the sale of the land to the [11]*11defendant for two hundred and eight dollars, (less than one dollar per acre ;) fifty-eight dollars of which were paid down, and the remainder .to be paid when the plaintiff made or caused to be made a good and sufficient title. This contract was dated on the 25th January, 1852. On the 19th of the succeeding March, the defendant purchased the said land from one A. Barry, and in the first answer of the defendant, he sets up this purchase ; or rather, his averments are to the effect, that he made the purchase induced by the representations of Barry that he had a good and perfect title.
A witness, Michael Welch, testified that he was present ata meeting between Doyle and plaintiff; that the plaintiff pro posed to convey the land to Doyle, on his paying the purchase money ; but Doyle refused, as Barry, from whom he obtained, a deed, would not pay any part of the money ; that he, Doyle, had Barry’s title to the land. The witness reiterates two or three times, in substance, that Doyle refused to pay the purchase money and claimed title under Barry’s deed ; that the fifty-eight dollars paid by Doyle, was tendered to him, which he, finally, after some change of opinion, refused to receive. All this transpired before the filing of the petition. Witness had seen a letter from Doyle to plaintiff, offering to pay for the land, but this was prior to the purchase from Barry ; that the land was worth three dollars per acre at the commencement of suit. Another witness states improved lands to be worth five, and wild lands three dollars per acre. The witness Welch also stated that the plaintiff did not offer or tender to Doyle a deed for the land at the time Welsh called on Doyle to pay the balance of the purchase money. The fifty-eight dollars tendered to, and refused by Doyle, were, on the filing of the petition, deposited with the Court, and were tendered in Court to the defendant.
The facts as to the extent of the improvements on the place prior to the purchase by Doyle, or the additions subsequently made by him, need not be stated. The title of Doyle, derived [12]*12originally from the purchase of plaintiff, to fifty-five acres, is admitted. The controversy is in relation to the remaining two hundred and forty-five acres.
The question is, should the contract be enforced for defend ant, or be rescinded as prayed for by the plaintiff?
It should be observed that the defendant does not pray a specific performance. He sets up the contract in his amended answer, and insists that thereby he has a better right and title to the premises than the plaintiff, and that she is estopped from prosecuting this suit ; but he does not allege performance on his part, or proffer performance on compliance by the plaintiff with her stipulations. But, admitting that specific execution might be decreed notwithstanding the want of a prayer to that effect; we will examine whether, upon the facts, he is entitled to such relief; or the plaintiff be entitled, as she has prayed, to a rescission.
That the plaintiff, though a married woman, could, on abandonment by the husband, make a valid disposition of the community property, can scarcely be regarded as an open question in this Court. In Wright v. Hays, (10 Tex. R. 130,) it was in substance decided, that where a husband abandoned the administration of the common property, deserting his wife and country, contributing in no mode to the support of the family, reducing the wife to the necessity of providing for them, alone, and of taking the care and charge of the common property, such abandonment vested all the rights of disposition in the wife, which could have been exerted by the husband, had he remained in the discharge of his duties and power as husband. The marital prerogatives of the husband are exalted, but when he descends from the throne of his exaltation, and abjures and virtually renounces his authority, and by abandonment, disables himself to discharge his duties as husband, in providing for his wife and family, it would be the extreme of cruelty to suffer the wife’s disabilities from coverture, to continue, sacrificing her to the empty shade of [13]*13authority, and depriving her of the miserable privilege of providing for the wants of herself and children, out of property specially designated by law for the benefit of the matrimony, and in which she has an equal interest with her husband. In the case cited, of Wright v. Hays, the abandonment continued for years. But this circumstance is not material, except in evidence, to show that the absence is not temporary in its nature, but a complete desertion. The rights and powers of the wife arise from the fact of abandonment, and not the length of its continuance. Most if not all the exigencies which impart authority to the wife, concur in this case ; abandonment by the husband of the wife and State ; refusal or neglect to discharge his marital duties, in providing for the wants of the family, and in the preservation of the common property; forcing upon the wife the necessity of supporting herself and children, by her unaided exertions, and controlling and managing the property and affairs pertaining to the marriage.
This contract made by the plaintiff thus abandoned is valid ; at least it is not impaired from the want of joinder by the husband. The fact that the land was the homestead, does not affect the contract. The assent of the partner who abandons the home and family, and the duties and powers of the marriage relation, is not requisite to the sale of the homestead.
The contract being valid, the question is whether the defendant is entitled to specific performance, as found by the jury and decreed by the Court.
That the defendant essentially failed and refused to comply with the stipulations of the agreement is most manifest from the evidence. If the witness Welch be entitled to credit, and nothing appears to the contrary, the defendant on a proffer by the plaintiff to convey, and a request that he should pay the purchase money, refused such payment. It may be said that she had not tendered a conveyance, as she was bound to do by her stipulations. But she did what was equivalent. She proposed to convey on his paying the purchase money. That is, [14]*14the acts should be simultaneous. But he refused, not on the ground that she had not made and actually tendered a conveyance, but because he had purchased from Barry and relied on his deed.
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Hemphill, C J.
To recapitulate the pleadings, or comment upon the anomalies and contradictory phases assumed by the parties, would be as irksome as unprofitable.
Without this waste of time and effort, we will proceed to state the most material facts, as adduced in evidence, and adjudge the law of the case as it arises on those facts.
These show that that the plaintiff was, in 1850, abandoned by her husband, who was last heard of in California ; that she received no support from him for herself and three children, and had no separate property ; and there was no property of any kind belonging to the husband in Texas, or to the plaintiff, his wife, or their children, except the land in suit, which was community property, and had been the homestead of the family. The husband removed the family from their homestead in 1850, without having provided another ; at least there is no proof to that effect. The presumption is strong, it may be said, conclusive to the contrary ; it being in proof that she was destitute of the means of subsistence, and dependent on the charities of strangers for a support. Under these circumstances, the plaintiff contracted for the sale of the land to the [11]*11defendant for two hundred and eight dollars, (less than one dollar per acre ;) fifty-eight dollars of which were paid down, and the remainder .to be paid when the plaintiff made or caused to be made a good and sufficient title. This contract was dated on the 25th January, 1852. On the 19th of the succeeding March, the defendant purchased the said land from one A. Barry, and in the first answer of the defendant, he sets up this purchase ; or rather, his averments are to the effect, that he made the purchase induced by the representations of Barry that he had a good and perfect title.
A witness, Michael Welch, testified that he was present ata meeting between Doyle and plaintiff; that the plaintiff pro posed to convey the land to Doyle, on his paying the purchase money ; but Doyle refused, as Barry, from whom he obtained, a deed, would not pay any part of the money ; that he, Doyle, had Barry’s title to the land. The witness reiterates two or three times, in substance, that Doyle refused to pay the purchase money and claimed title under Barry’s deed ; that the fifty-eight dollars paid by Doyle, was tendered to him, which he, finally, after some change of opinion, refused to receive. All this transpired before the filing of the petition. Witness had seen a letter from Doyle to plaintiff, offering to pay for the land, but this was prior to the purchase from Barry ; that the land was worth three dollars per acre at the commencement of suit. Another witness states improved lands to be worth five, and wild lands three dollars per acre. The witness Welch also stated that the plaintiff did not offer or tender to Doyle a deed for the land at the time Welsh called on Doyle to pay the balance of the purchase money. The fifty-eight dollars tendered to, and refused by Doyle, were, on the filing of the petition, deposited with the Court, and were tendered in Court to the defendant.
The facts as to the extent of the improvements on the place prior to the purchase by Doyle, or the additions subsequently made by him, need not be stated. The title of Doyle, derived [12]*12originally from the purchase of plaintiff, to fifty-five acres, is admitted. The controversy is in relation to the remaining two hundred and forty-five acres.
The question is, should the contract be enforced for defend ant, or be rescinded as prayed for by the plaintiff?
It should be observed that the defendant does not pray a specific performance. He sets up the contract in his amended answer, and insists that thereby he has a better right and title to the premises than the plaintiff, and that she is estopped from prosecuting this suit ; but he does not allege performance on his part, or proffer performance on compliance by the plaintiff with her stipulations. But, admitting that specific execution might be decreed notwithstanding the want of a prayer to that effect; we will examine whether, upon the facts, he is entitled to such relief; or the plaintiff be entitled, as she has prayed, to a rescission.
That the plaintiff, though a married woman, could, on abandonment by the husband, make a valid disposition of the community property, can scarcely be regarded as an open question in this Court. In Wright v. Hays, (10 Tex. R. 130,) it was in substance decided, that where a husband abandoned the administration of the common property, deserting his wife and country, contributing in no mode to the support of the family, reducing the wife to the necessity of providing for them, alone, and of taking the care and charge of the common property, such abandonment vested all the rights of disposition in the wife, which could have been exerted by the husband, had he remained in the discharge of his duties and power as husband. The marital prerogatives of the husband are exalted, but when he descends from the throne of his exaltation, and abjures and virtually renounces his authority, and by abandonment, disables himself to discharge his duties as husband, in providing for his wife and family, it would be the extreme of cruelty to suffer the wife’s disabilities from coverture, to continue, sacrificing her to the empty shade of [13]*13authority, and depriving her of the miserable privilege of providing for the wants of herself and children, out of property specially designated by law for the benefit of the matrimony, and in which she has an equal interest with her husband. In the case cited, of Wright v. Hays, the abandonment continued for years. But this circumstance is not material, except in evidence, to show that the absence is not temporary in its nature, but a complete desertion. The rights and powers of the wife arise from the fact of abandonment, and not the length of its continuance. Most if not all the exigencies which impart authority to the wife, concur in this case ; abandonment by the husband of the wife and State ; refusal or neglect to discharge his marital duties, in providing for the wants of the family, and in the preservation of the common property; forcing upon the wife the necessity of supporting herself and children, by her unaided exertions, and controlling and managing the property and affairs pertaining to the marriage.
This contract made by the plaintiff thus abandoned is valid ; at least it is not impaired from the want of joinder by the husband. The fact that the land was the homestead, does not affect the contract. The assent of the partner who abandons the home and family, and the duties and powers of the marriage relation, is not requisite to the sale of the homestead.
The contract being valid, the question is whether the defendant is entitled to specific performance, as found by the jury and decreed by the Court.
That the defendant essentially failed and refused to comply with the stipulations of the agreement is most manifest from the evidence. If the witness Welch be entitled to credit, and nothing appears to the contrary, the defendant on a proffer by the plaintiff to convey, and a request that he should pay the purchase money, refused such payment. It may be said that she had not tendered a conveyance, as she was bound to do by her stipulations. But she did what was equivalent. She proposed to convey on his paying the purchase money. That is, [14]*14the acts should be simultaneous. But he refused, not on the ground that she had not made and actually tendered a conveyance, but because he had purchased from Barry and relied on his deed. The refusal on such ground discharged her from the obligation of drawing and tendering a conveyance. Why should this be done, when the contract was repudiated by the defendant, relying as he did on an adverse title, and refusing to pay although a conveyance was proffered if he would make such payment. This, under the circumstances, was such abandonment of the contract as discharged the plaintiff from her obligations. The circumstances under which this contract was made were peculiar. The plaintiff, abandoned by her husband, left destitute, without the means of support for herself and family, dependent on the charities of others, sold, at a low rate, this land, (her only property) and which was rapidly appreciating in value. If in any case it is the duty of a vendee to be eager and prompt in the discharge of his stipulations, it certainly was in this. But instead of such promptitude, the defendant, in less than two months, purchases up and relies on an adverse title, and refuses further compliance. He surely cannot, with any grace, invoke the aid of a Court to enforce a contract thus repudiated by him, and which he did not even subsequently offer to perform. Had he subsequently recenti facto proffered compliance, and prayed for specific execution, it is exceedingly doubtful whether his prayer should have been treated by Courts of Equity with indulgence. This is not the character of cases in which indulgence should be extended. It is one in which the vendee should be held to a strict compliance with his stipulations. Time, it is true, is not made the essence of the contract by the stipulations of the parties, but it became so from surrounding circumstances. At the least the defendant should have shown a reasonable diligence ; but instead of diligence, of a readiness to pay the money, his dots are equivalent to an absolute refusal, and as such they amount to an abandonment of the contract, and the judgment should [15]*15have been for the plaintiff, and that she recover possession of the land.
The question in relation to the rents, improvements, &c., and as to whether, under the circumstances, the plaintiff should pay back the fifty-eight dollars, need not be here discussed. The rents and profits derived from the use will doubtless far exceed the fifty-eight dollars. For authorities in support of the principle of this opinion see Edwards v. Adkinson, 14 Tex. R. 373; Roberts v. Berry, 17 Eng. Law and Equity, 400: 2 Story, Eq. Ju. §776; 2 Scholer v. Lefroy, 684; 3 Monroe, 318; 3 J. J. Marshall, 230.
These views dispose of the important question in the cause, and it is ordered, adjudged and decreed that the judgment be reversed and the cause remanded for further proceedings in conformity with this opinion.
Reversed and remanded.