Hampshire v. Floyd

Ogden, P. J. There was error in the ruling of the court on the trial of this cause, in the admission of evidence of the contents of the lost agreement between Phil. Claiborne and Hampshire and wife, until the execution of the agreement by the parties sought to be charged therewith had been established by proof. There was a general denial of the allegations of the answer, or cross-bill, and this put in issue all the material facts to be proven. Articles 1443 and 3716, Paschal’s Digest, provide for the admission in evidence of written instruments under certain circumstances, without the necessity of proving their execution, but in every case profert of the instrument must be made, or its execution must be proven. This doctrine [105] is clearly enunciated in Erskine v. Wilson, 20 Texas, 80; in Robinson v. Brinson, 20 Texas, 441, and in Jordon v. Robson, 27 Texas, 615. These statutes were passed to relieve, in some respects, the rigor of the common law in the requisites to prove up written instruments. But where there is an allegation of a lost instrument, or one that cannot be produced, then the execution should be clearly established before proof of its contents is admitted, and any departure from this rule might deprive parties of one of the most important means of defending their rights. The wisdom of this rule is clearly demonstrated in the'facts of this case. A married woman is sought to be charged with the sale nr alienation of real estate, when it is admitted that she never executed a deed, or even an agreement to make a deed, under the forms prescribed by law. The statute points out the mode by which a married woman may be charged with the sale of her separate estate, and until that mode has been fully complied with any act by her must be regarded as a nulity, without any binding force. Claiborne may have had a claim against Mrs. Hampshire, which, if properly prosecuted, might have subjected her separate property to its satisfaction, but certainly that remedy has not been pursued in this case, and she having never, in any manner, parted with her title to the land in controversy, must recover in this action. Hor can the appellee claim to be an innocent purchaser, for he knew, or might have known by consulting the records, that the title had never passed from Mrs. Hampshire; and on his purchase from Claiborne he received only what title his vendor had, which was no title at all, as shown by the record. Had the instrument about which Claiborne testified been before the court, signed by Hampshire and wife, without her privy acknowledgment, [106] still it would have been the duty of the court to have instructed the jury that it wa,s no evidence that Mrs.. Hampshire had parted with her title, and no foundation’, for any claim for title by Claiborne or his vendee. (Berry v. Donley, 26 Texas, 737.) For the errors here indicated, the judgment is reversed, and the cause remanded. Reversed and remanded.