Houghton v. Marshall

Morrill, C. J. —One Ogle and wife, on the 7th November, 1850, contracted to sell to one Everett the land in controversy for a certain consideration named, and Everett took possession of the property, and paid a portion of the purchase-money at the time of making the contract. Everett, on the 25th January, 1851, sold and conveyed by deed the land to one Crawford, who, in December, 1854, conveyed by deed the land to defendant, Marshall. On the 15th July, 1853, between two and three years after Ogle made the contract of sale with Everett, the same vendors, Ogle and wife, sold and conveyed by deed the same land to plaintiff, Houghton, who in 1857 instituted suit to recover the land. The larger part of the record shows that there was much controversy relative to immaterial issues in the district court, and as we do not conceive that the real questions at issue require their decision by us, we pass to what we deem material and decisive of the cause. As both Everett and his immediate and subsequent vendees took and retained possession of the land at the respective times of their purchase, placed their titles on record, Houghton, the plaintiff, and who, as before stated, purchased from Ogle after the conveyance to Everett, took [198] by his purchase the same rights that Ogle had, and was charged with the same trusts that bound Ogle after the execution of the contract with Everett. When Ogle and wife contracted to sell to Everett, they held the title to the land in trust for him, and as soon as Everett paid the purchase-money he was the equitable owner of the land. It seems to be admitted that when Everett purchased the land he jDaid about $150, and soon afterwards about $900, and was indebted in the sum of, say $150, when he was garnisheed by the creditors of Ogle, and in January, 1851, judgments were rendered against him as such garnishee for the remainder which he owed Ogle on the purchase. The main question at issue in the district court was, whether these judgments against Everett, as a debtor of Ogle, could be pleaded as a payment of the indebtedness due for the homestead of Ogle and wife. It is assumed by plaintiff that the wife must be the recipient of the purchase-money, and a payment under the circumstances does not discharge the indebtedness for the homestead. The wife was not compelled to convey the homestead. If she did so, she did it voluntarily; and when she signed and sealed, in conjunction with her husband, “any deed or other writing purporting to be a conveyance ” of the homestead, and acknowledged the same according to the provisions of the statute in such cases made and provided, it was no longer the homestead, and the money or property or bills receivable given in exchange therefor was community property. Even if the bills receivable had been made payable to the wife, they would have been community property, and the husband only, as the active member of the matrimonial partnership, could indorse them. (Hemingway v. Mathews, 10 Tex., 207.) As, therefore, Everett had paid to Ogle, previous to Jan•uary, 1851, the entire purchase-money, excepting the small remainder of $165, and judgment was rendered against him [199] for this sum, as hereinbefore stated, in January, 1851, all the right that Ogle and wife conveyed to Houghton by their deed in 1853 was in effect a power of attorney to 'convey to Everett. The charge of the judge was as favorable to the plaintiff as even the earlier judgments of this court would warrant, and the jury did not err in their verdict. The judgment is Affirmed;