Hall v. Hanen

WILLSON, O. J. (after stating the facts as above), The Legislature having declared (article 4621, Vernon’s Statutes, 1922 Suppl.), that “during marriage, * * * the wife shall have the sole management, control and disposition of her separate property, both real and personal,” and the Supreme Court having determined in Hardware Co. v. McMahan, 111 Tex. 242, 231 S. W. 694, that “as incidents to the wife’s power of exclusive management and control of her separate property and of the specified portions of the community, she -became vested with all such contractual power relative to same, as is requisite to make her power effectual,” appellant insists that the trial court erred when he instructed the jury to return a verdict in Mrs. Hanen’s favor: , The insistence is on the view that the testimony warranted a finding that the con *201 tract set out in the statement above was • made by Mrs. Hanen for the benefit of her separate estate in the exercise of power the statute conferred upon her. As we understand the record, there was no testimony which would have warranted such a finding, unless that set out, or referred to, in said statement should be held to háve warranted it; and we do not think it should be so held. Dickinson v. Lumber Co. (Tex. Civ. App.) 213 S. W. 341; Bank v. Ferguson, 109 Tex. 287, 206 S. W. 923; Benjamin v. Youngblood (Tex. Civ. App.) 207 S. W. 687; Mills v. Bank (Tex. Civ. App.) 208 S. W. 698; Givens v. Davis (Tex. Civ. App.) 227 S. W. 367; Poe v. Hall (Tex. Civ. App.) 241 S. W. 708. As we construe the testimony, it did not tend in the least to show that the contract was for the benefit of Mrs. Hanen’s separate estate, nor that it was made because it was supposed it would be. On the contrary, we think it conclusively appeared that the contract was made in pursuance of a venture in “the sheep business” the parties had determined to engage in, and that the use of Mrs. Hanen’s land for pasturing and caring for the sheep was a mere incident of the business. The judgment is affirmed.