
    Cravens v. Booth.
    While the lit»'extends its protection to tho rights of a. married woman, it does not permit her to act fraudulently or inequitably to tho injury of others. Acting on her own responsibility, who may act fraudulently, deceitfully, or inequitably, so as to deprive her of any claim for relief in a court of equity. This results from the capacity to hold property and make contracts, with which tho law invests her.
    The voluntary acts and representations of a married woman, made to deceive and which do deceive others to their prejudice, will bo binding upon her.
    If a married woman voluntarily mako admissionsaud representations in respect to her rights of property, by whie.h others are deceived and induced to give credit to her husband on tito faitit of tito property, she will be precluded from asserting her claim against the rights of those who have confided in and acted upon her representations and admissions. (Noto 68.)
    Appeal from Shelby. The appellant brought suit against John T. Booth in tho District Court of Shelby county in October, 1S74. lie subsequently recovered a judgment and had an execution issued thereon, which was levied on certain negroes, as the property of the judgment debtor, on the 3d day of April, 1850. The appellee, wife of John T. Booth, claimed the property, and there was a trial of ihe right of property. It was in evidence that Booth, the defendant in execution, had beeu in possession of the negroes since 1844, and that lie was the reputed owner. The wife claimed lindera deed of gift from one Nathaniel Bains, hearing date on the 15th day of February, 1848. In 1845 or 18-10, in a conversation with' Mrs. Booth and' two of the witnesses, Mrs. B. introduced the subject of ownership of the negroes; stated that a report had been circulated that she owned them, and tliat they were not liable for her husband’s debts; that in consequence of this report his credit was injured, &c. She said the report was false, and that the property belonged to her husband. It was further in evidence, by a witness who heard this conversation, that previously Cravens, the plaintiff in execution, anti Booth had been negotiating a trade. The witness was afrerwards informed by Cravens that lie had declined to conclude the trade with Booth, because lie had understood that the properly in his possession belonged to bis wife. The witness then told him the conversation lie had had with Sirs. Booth. The trade was subsequently concluded. The witness testified to other facts tending to show thttt Hie judgment, which was the foundation o£ the execution now levied on tiie property, was founded on an indebtedness growing- ont of the trade before referred to. There was other evidence which it is not necessary to recapitulate.
    Tho court charged the jury tliat “no admissions by the defendant (the claimant.) as to the ownership of the property in controversy could bind her if untrue in fact, although they had been acted upon by the plaintiff, and credit given to her husband by tiie plaintiff in consequence of said admissions, and (hat said admissions could only be considered by the jury as proof or disproof oi ownership of said property.”
    There was a verdict and judgment for the claimant, from which the plaintiff in execution appealed.
    Tiie charge of tiie court, among other matters, was assigned as error.
    
      T. J. Jennings, for appellant.
    Tiie facts of this case bring it clearly within the law of Warren v. Dickerson and Tutt, 6 Tex. It., 4G9. The wife’s affirmative acts and express admissions, intended to give, and which did give credit to the husband, upon tiie faith of this'property which she held out to he his, hind her, even under tiie doctrine of Parks v. Willard, 1 Tex. It.. 359. (See first part of tille ADMISSIONS, in 2 Shirk. Ev.) The holding the property out to the world as her husband's, upon her own volition, is conclusive against her in this proceeding. (3 Stark Ev., 1030, in note, (r,) and cases tliero'cited.)
    
      Henderson and Jones, for appellee.
    So far as tiie charge complained of is material to be considered is measured by its application to the facts proved. All beyond the facts of this case is to he treated as abstract, and could not prejudice tiie appellant,, and is not therefore the subject of revision. (Chandler v. The State, 2 Tex. É., 308; Holliman v. Britton, Id., 299, 300; Williams v. Cheescborough, 4 Conn. II., 355; Heed v. McGrew. 5 Ham. B., 375; Jordan v. James, Id., 88; 3 U. S. Dig., p. 5GS, sees. 4SG-7.)
    But comparing it with the facts there is nothing to complain of in the cilarge. Tiie doctrine on this subject is thus laid down in Story’s Equity Jurisprudence, vol. 1, §§191, 192:
    ” One of the largest classes of cases in which courts of equity are accustomed to grant relief is where there lias been a misrepresentation or suggeslio falsi. it is said, indeed, to be a very old head of equity that if a misrepresentation is made to another person going to deal in a matter of interest upon the faith of that representation, tiie former shall make that representation good if lie knows it to be false. To justify, however, an interposition in such cases it is not only necessary to establish tiie fact of misrepresentation, but that it is a mat ter of substance or important interest to the other party, and that it actually does mislead him. For if the misrepresentation was of a trifling or immaterial thing', or tiie other party did not trust to it, or was not mislead by it; or if it was vague and inconclusive in its own nature; or if it was upon a matter of opinion or fact equally open to file inquiries of both parties, and in regard to which neither could he persuaded to trust the other, in these and the like eases there is no reason for a court of equity to interfere to grant relief upon tiie ground of fraud.”
    When the party intentionally or by design misrepresents a material fact, or produces a false impression in order to mislead another, or to entrap or cheat him, or to obtain an undue advantage of him, in every such case there is a positive fraud, in the truest sense of the terms. There is an evil act with an evil intent; dolum malum ad circumveniendum.
    
    First, then, the misrepresentation of tiie appellee was not made to tiie appellant, nor any false impression made on him by her. But her gossip with her neighbor is reported by this neighbor without her knowledge to the appellant, and he chooses to act on it, that is, if lie acted on it at all. This was not her act and deed and she is not to he held accountable for it.
    Second, there cannot fairly nor possibly be inferred from this gossip any fraudulent or evil intent.
    Third, it is not shown that the appellant acted on the faith of the misrepresentation and was misled by it to his prejudice in tiie matter of the present cause.
    
      There is no positive proof that he acted on the representation, nor is there any proof that it produced any effect on him at the time. But it is sought to be inferred from his concluding a trade a few days thereafter, which lie liad previously suspended on account of understanding' that the property in possession of tiie husband and wife belonged to the wife, that lie must have done so on tiie faith of the representation of the wife which had been reported to him. Such an inference is extremely weak at best and would not warrant a verdict. Besides, is it plausible to suppose that having information that the property belonged to the wife lie would have acted on idle tale which had been told him to the contrary without making' further inquiry and seeking- other knowledge? This is not reasonable to suppose. If he reopened the suspended trade and concluded ir., it must have been upon a change of mind produced by some other or further cause, and the jury would not have been warranted’in eon-eluding from the testimony before them that lie was actuated solely or at all by tiie" tale which tiie witness carried. (1 Qreeul. "Ev., § 52 ; Bank of tiie United States v. Corcoran, 2 Pet. R„ 133; Dogan v. Ashby, 1 Strob. R., 423; 1 U. S. Am. Dig-., p. 377, § 41; Bildeii v. Lamb, 17 Conn. R., 441; 1 U. S. Am. Dig., p. 240, § 328.)
    Again, it is to be observed that the witness states that the appellant concluded the. trade with John T. Bootli a few days after the conversation of tiie witness with appellant oil 1 he hearsay of the appellant and John T. Bootli; but this would not bo admissible testimony to prove this fact on a new trial if it were excepted to, which it surely will be; yet this is alL the evidence in the cause from which it is to be inferred that the appellant acted in the matters in tills cause oil the faith of the representation which had been made to him by the witness. The court will not therefore send a cause back for a new trial when it appears that a different result cannot be liad and also that justice lias been done. (Mims v. Mitchell, 1 Tex. R., 443; Johnson v. Blackenan, 11 Conn. R., 342; Q-erber®. Emery, 2 Wash. C. C. It.. 413; Burcli v. Scribner, 11 Conn. R., 38S; Rogers v. Page, Bryant, 10!); Brockeubridge v. Anderson, 3 J. J. Marsh., 710 Ingraham v. S. C. Ins. Co.. Const. Itep., 707; 3 U. S. Dig'., p. 570, Sec. 532; p. 500,' see. 285; p. 502, sec. 337; p. 507, sec. 495; Beckwith v. Middle-sex, 20 Verm. R., (5 Waslib.) 593; 9 U. S. Dig., p. 342, sec. 1. Row trial. Kelsey v. Hammer, 18 Conn. R., 311; 8 U. 8. Dig., p. 284, see. 2.
    Again, there was no proof that the causes of indebtedness for which the judgment was rendered, under which the execution in this cause issued, arose out of the trade which it is pretended the appellant concluded with John T. Bootli, except the statement of the witness that John T. Bootli admitted them to have done so, on a settlement which tiie witness made between Bootli and the appellant some time in the year 1840. But this surely was not testimony, and thongh it was not excepted to on the past trial, yet it certainly will be on the second, if tiie j ndgment is reversed and a new trial awarded. And why, therefore, send a canse back for now trial where the result will not be different and where justice lias been done?
    Further, it is evident tiiat the witness, in the last statement referred to, swore to a palpable falsehood ; for he states that on the settlement which he made between the appellant and .John T. Booth, some time in 1840, Booth admitted that the items contained in the appellant’s petition in the original case, in which tiie execution in the present cause was had, arose out of tiie trade made between him an d the appellant in 1834 or 1836; yet one of the items is dated April 5, 1847, and another March 10, 1847, which was subsequent even to tiie date of the settlement, which was in 1840. Another item was dated November 28,1840, due December 25,18-10, almost the end of the year in which tiie settlement took place. Another item was tiie covenant of compromise made April 5, 1847, concerning a note dated January 28, 1840, payable Dec-cernber 25,1840, which note was made by Samuel Rowe to Booth, and assigned by the latter to tiie appellant. And the only other item was an open account, which is not exhibited, nor the date nor tiie nature of which is given, and yet tiie witness undertakes to swear to the very identity of it.
    
      Note 58. — Chubb v. Johnson, II T., 10!); Allen v. Orquharfc, 19 T„ 180; Berry ». Donley, 20 T., 707; Baily v. Trammell, 27 T., 828; Cross u. Everts, 28 T., 523; Pitagorald v. Turner, 43 T.,79; Ryan o. ilaxey, 43 T-, 192.
    It is lianlly necessary to say that, waiving every other exception to the evidence, it cannot be pretended that tills testimony can establish in any degree the fact that the appellant acted on the faith of the representation which'had been made to him by the witness in the matter for which the judgment was rendered under whicli the execution in the present cause issued, and that a verdict to tills effect could be found on this testimony. Wherefore there is no cause to remand the cause, though the charge may have been 'oneous.
   Wheeler, J.

It is evident that the charge of the court was calculated to impress the jury with the belief that the rule of law which holds a party concluded by his representations and admissions, which have been acted upon by others, does not apply to a married woman, and that she is in no ease bound by her fraudulent representations in respect to her separate property.

The law, however, is otherwise. While it extends its protection to the rights of a marriedwoman, it does not permit her to act fraudulently or inequitably to the injury of others. In the language of Mr. Justice McLean, in Bein v. Heath, 6 How. U. S. R., 238, “ the law protects her, hut it gives her no license to commit a fraud against the rights of an innocent party.”

A feme covert, acting on her own responsibility, may act fraudulently, deceitfully, or inequitably, so as to deprive, her of any claim for relief in a court of equity. This results from the capacity to hold property and make contracts, with whicli the law invests her. (Id., 247.) Her voluntary acts and representations made to deceive and which do deceive other’s to their prejudice, will be binding upon her. if she makes admissions and representaUous in respect to her rights of property by which others are deceived and induced -to give credit to her husband on the faith of the property, she will be precluded from asserting lior claim against the rights of those who have confided in and acted upon her representations and admissions, “Indeed,” says Story, in treating of franiln-lent concealments and representations, “ cases of this sort are viewed with so much disfavor by courts of equity that neither infancy nor coverture will con-stituir' any excuse for the party guilty of the concealment or misrepresentation. for neither infants nor femes coverts are privileged to practice deceptions or cheats on other innocent persons.” (1 Story Eq., sec. 385.)

It, is a well-settled principle of the law, from the influence of whicli not, even married women are exempted, that “admissions whicli have be.en acted upon by other’s are conclusive again-t the party making them in all cases between him and the person whose conduct ho has thus influenced.” “ Thcparty is es-topped, on grounds of public policy and good faith, from repudiating his own representations.” (I Greenl. Ev., sec. 2Ó7.)

“It makes no difference in the operation of this rule whether the thing admitted was true or false, it being the fact that it has been acted upon that renders it conclusive.” (Itl., see. 208.)

There can be no doubt that the instruction given to the jury was erroneous, and very little, I apprehend, that it induced 'them to find a verdict for the claimant in this ease.

The judgment is reversed and the canse remanded for a new trial.

Reversed and remanded.  