Butler v. Robertson

Wheeler, J. It is objected to the judgment, by the assignment of errors, that the recovery is against law, 1st. Because the property in the note was not in the plaintiff, 2nd. Because the defendant being a married woman, the note was not binding upon her. It does not appear from the evidence, when or in what manner, the plaintiff became the bearer of the note sued on. It is to be taken, therefore, that he became possessed of it rightfully, by delivery upon its execution, or, at least, before its maturity. Being payable to bearer, it was transferrable by delivery, and the possession of the note invested the bearer with the legal title. (Greneaux v. Wheeler, 6 Tex. R. 515 : Smith v. Clopton, 4 Tex. R. 109.) This enabled him to maintain the action in his own name ; and this case, therefore, is not distinguishable in principle from those, heretofore decided by this Court, in which it was held that the person in whom is the legal title to the note, may maintain the action, though the equitable ownership be in another. (1 Tex. R. 87; 2 Id. 397; 6 Id. 153.) Had it appeared that English had possession of the note at the time of his death, or that it came to the possession of the plaintiff after its maturity, it would have presented a different case. But the statement of the witness, simply, that the note belonged to English at the time of his death, and that it belonged to his estate, does not, we think, repel the presumption in favor of the fairness and legality of the plaintiff’s possession, or establish that he did not acquire the possession rightfully and legally. The remaining question, as to the liability of the defendant, on the note sued on, is free from difficulty. The evidence, we think sufficient to warrant the conclusion, that the services, which were the consideration of the note, were rendered in [144] the improvement of the separate estate of the defendant, or for its preservation, and consequently for her benefit; and, for these objects, there can be no question of the ability of the defendant to make a valid contract, effectual to bind her and subject her separate property to the payment of the debt so contracted. (Cartwright v. Hollis, 5 Tex. R. 152; Hollis & Wife v. Francois et al., Id. 195.) We are of opinion that there is no error in the judgment, and that it be affirmed. Judgment affirmed.