Reynolds Mortgage Co. v. Gambill

LEVY, J. As concluded by the majority of the court, the judgment should be affirmed upon the grounds that, since Mrs. Gambill was insane at the time she joined in the conveyance of the homestead, her signature and acknowledgment did not evidence “consent” such as the law recognizes as valid and binding upon her, and therefore “the sale” of the homestead in this case cannot be sustained as being made in accordance with the constitutional provision and the statute. It is not questioned that, as the legal effect attaching to insanity, when the power of volition and mental capacity to either consent or dissent is gone, then the act is without consent such as the law recognizes. By the law of the land no insane person is capable of assenting to a sale of land so as to bind himself. And that, being the effect of the wife’s act, it follows as a consequence that the sale in this case cannot be sustained, even though the property was community property and the husband signed the deed. For the law requires “the homestead,” whether it be community or separate property, to be alienated by both the husband and the wife in accord in the sale, and the husband is not legally empowered to alienate it independently of the wife in virtue merely of her insanity. The regl question involved is purely one of legal authority of the husband himself to alienate the homestead in the precise circumstances shown. The constitutional provision in question inhibits, in plain positive words, the sale of “the homestead” by the husband “without' the consent of the wife.” It is mandatory and imperative in its nature. There must be mutual assent of the husband and wife in the alienation of the homestead. Clearly the primary effect of the provision is to counteract and to afford relief against the unrestricted right of the husband alone to alienate “the homestead” so long as it is the homestead of the husband and wife. As clearly, equality of rights is thus given to husband and wife jointly to be exercised in agreement freely made. And the consent of the wife being expressly required to the execution of the power of sale of the particular homestead, it constitutes, in legal effect, a limitation upon the power of alienation by sale, which, like every other condition, must be strictly complied with. The power to act is conferred on the two, the husband and the wife, and its exercise is made absolutely dependent on their judgment whether such act shall be done. The term and duration of the power to act is limited by its words to the extent of the period of time that the premises are used and occupied as a “homestead” during the relation of husband and wife. It is a general rule of law that, where .the power to act is conferred on two or more, and it is dependent on their judgment whether such act shall be done, the concurrence of all is necessary to a valid exercise of the power. Hart v. Rust, 46 Tex. 556; Giddings v. Butler, 47 Tex. 535; Wright v. Dunn, 73 Tex. 293, 11 S. W. 330; Morris v. Geisecke, 60 Tex. 633. That rule is especially applicable where *481 the law, and not the simple contract of the -parties, creates the authority to give reciprocal consent and make such mutual consent a condition to the valid exercise of the power of sale. Then upon what legal ground can a judicial decision rest, sustaining the validity of a sale of the homestead, when it is such, by the husband alone, the relation of husband and wife still existing? Obviously the authority of the husband to do so must be referable to some provision of the law. No condition is annexed to the right of the wife to give consent by the terms of the constitutional provision. The provision confers upon the wife the absolute right of “consent” to the alienation of the homestead, and such right is not given conditionally upon the happening or not happening of a certain event. It does not provide that in case of legal incapacity thereafter arising in the particular case the right of mutual consent should terminate or cease. Neither is the restriction upon the authority of the husband to sell the homestead only through the concurrence of himself and wife made dependent upon the continuance of the mental capacity of the wife. And there is a marked legal difference between the continuance of mental capacity as affording ground for the valid exercise of the right of consent and the lack of mental capacity as ground for legally terminating and ceasing the right itself conferred by law. It is fundamental that it is not the proper office or authority of the courts to extend the limits of a constitutional provision or attempt a condition or exception not within its terms to relieve against the occasionally harsh, operation of its terms. That is purely the province of the lawmakers themselves. Therefore the question must depend upon whether or not, independent of the constitutional provision, insanity of the wife, as a pure judicial question, operates to vest in the husband the exclusive power to alienate the homestead during the period of her mental disability. Equity will not interfere to give relief, but will remain passive, where by express law there is a limitation upon the power of alienation of the homestead, and the final relief sought, as here, is merely to relieve such limitation. The property itself is not affected by any liens, charges, pecuniary benefits, or like circumstances, resting an obligation upon the husband to exercise the immediate power of sale — a right which equity recognizes and to a certain extent protects.' Morris v. Geiseeke, 60 Tex. 633. The same legal effect does not attach to insanity as to death or divorce. The power of consent being given only in the capacity of “wife,” the death or divorce of the wife legally severs the relation of husband and wife, and consequently terminates and ends the right given. Intentional abandonment on the part of .the wife legally operates as an abandonment and severance of the relation of husband and wife as well as the use and occupation of the premises as a homestead, both essential elements constituting a homestead. But insanity does not ipso facto legally operate or have the effect to terminate or revoke either the relation of husband and wife, or the right itself of reciprocal consent to the alienation of the homestead. The law, and not any act of the wife, created the right of reciprocal consent, and requires its exercise to a valid sale. It does not depend upon the continuance of her mental capacity. The wife’s rights are merely passive, and not vigorously active, during the period of insanity. It is upon the ground alone that the wife’s rights are merely passive, and do not cease to exist, during the period of insanity, that the courts avoid, and no further, the act done during the period of insanity. It does not legally effectuate an abandonment of the homestead, especially so when the wife, as here, is actually occupying the home. In her helpless and pitiable condition the wife has as much need, and even more so, for the use and ‘ occupancy of the homestead, Sis a sheltering place, as when in normal mind. The duty of the husband toward her in this respect is not lessened. And insanity is not classed as civil death, depriving of legal privileges, as for crime committed or fault upon her part. Railway Co. v. Bailey, 83 Tex. 19, 18 S. W. 481. That cannot be the province of the courts in a free country to forfeit personal rights pertaining to property merely for insanity. Hence as long as the personal right granted to the wife does not legally cease, it cannot legally exist anywhere else, even in the husband as the joint owner. And, in order for the husband to be vested with sole authority, the right of the wife to do the special act must legally cease, and not be merely passive. Consequently the constitutional restraint upon the husband’s authority to alienate the homestead is not relieved, as a judicial question, merely upon the insanity of the. wife, authorizing him to sell the homestead independently of the reciprocal consent of the wife. Thompson v. Mortgage Security Co., 110 Ala. 400, 18 So. 315, 55 Am. St. Rep. 29; Weatherington v. Smith, 77 Neb; 363, 109 N. W. 381, 13 L. R. A. (N. S.) 430, 124 Am. St. Rep. 855. The rule is squarely laid down in utmost consistency of principle, that insanity, unlike “absence or civil death,” does not empower either. spouse to alone act in the alienation of “the homestead” “which the law requires to be made by both the husband and wife.” Heidenheimer v. Thomas, 63 Tex. 287; Priddy v. Tabor (Tex. Civ. App.) 189 S. W. 111. In the Heidenheimer Case the wife undertook to convey the homestead, and in the Priddy Case the husband undertook to convey the homestead. No valid reason can exist why the same rule should not be applied to the husband as to the wife. There is equality of rights in the husband and wife in *482 respect to the use and occupancy of the home, and in the special act of its alienation. The right of the wife is of 'as much legal dignity as that of the husband. Her cares and responsibilities, in case of insanity of the husband, are as great as are those of the husband in case of insanity of the wife. It is quite true, as argued in the main opinion, that in conferring the right upon the wife to give consent to the sale of the homestead it was supposed that she was sane, and not insane, and that she would not exercise the right during the period of legal incapacity to give valid consent. That, though, is the presumption of the courts as affording ground for avoidance merely of the act done by her during that period of mental incapacity. The courts have never made insanity a ground for divestiture of a personal right pertaining to property, in order to confer the sole power upon another to act, the concurrence of the two being expressly required by law to do the given act. As stated, we think the judgment should be affirmed.