Hamilton v. Brooks

Gould, Associate Justice. The promissory note which Beasley gave, payable to Mrs. Still or order, in payment for lands of her separate estate, was her separate property, and" parties having notice of her rights would acquire no valid' title to the note through the unauthorized act of her husband. (Rose v. Houston, 11 Tex., 326; Hemmingway v. Mathews, 10 Tex., 207.) The husband deposited the note with Dunklin as collateral' security, but without indorsement or written transfer, and Dunklin, after the husband’s death, transferred the note to-appellant Hamilton, crediting his claim against the estate of Still with an amount equal to the note and interest. His. claim thus credited was presented to Mrs. Still, as administratrix of her husband’s estate, and was by her accepted. Appellant asked a charge to the effect that the jury were authorized to presume from her acceptance of the claim, with knowledge of the credit, that she ratified the appropriation [146] made of the note. This charge the court refused, but instructed the jury, that “An allowance by Mrs. Still of accounts against her husband’s estate, in which this note may have been included, cannot be regarded as a ratification of his act in transferring the note.” In the same paragraph of the charge, the jury are told that it is for them to determine, from all the facts and circumstances of the case, the authority to transfer the note, or the ratification thereafter of said transfer. The assignments of error object to the part of the charge just copied as on the weight of evidence, and object, also, to the refusal of the charges asked. The clause objected to in the charge as given was evidently designed to negative the claim that the action of Mrs. Still, as administratrix, in accepting the account with the credit, was, as matter of law, a ratification of the transfer of the note; but, by the latter part of the same paragraph of the charge, the jury were left to determine the question of ratification from this and all the other circumstances of the case. The objection that the charge is upon the weight of evidence, is not well founded. Whether there had been an implied ratification of the appropriation of the note, was a question of fact. It may be that the court should have instructed the jury more fully as to what would constitute an implied ratification. (Reese v. Medlock, 27 Tex., 124; 1 Am. Lead. Cases, p. 594.) If so, appellants should have asked appropriate instructions, and having failed to do so, cannot now complain of the omission. The judgment is affirmed. Affirmed.