
    No. XXXV.
    Scott and Solomon v. Maynard et ux.
    (See .)
    
      Appeal from Matagorda County.
    
    
      
      .—Scott v. Maynard, p. 548.
      1 Act of January 18, 1840 (Gammel’s Laws of Texas, vol. 2, p. 28), had no application to contracts made prior to Its passage. Hodges v. Johnson, 15 T., 570. Before Its passage, parol sales of land accompanied by possession were valid. Briscoe v. Bronaugh, 1 T., 326; Lynch v. Baxter, 4 T., 431; Monroe v. Searcy, 20 T., 348; Sullivan v. Dimmitt, 34 T., 114; Downs v. Porter, 54 T., 59; Barrett v. Spence (T. C. A.), U. R. C., 1902. Under decree of March 24, 1825 (Gammel’s Laws of Texas, vol. 1, p. 125), and prior to decree of March 26, 1834 (Gammel’s Laws of Texas, vol. 1, p. 357), sales of land and contracts to sell by colonists, before issuance of title, occupation and cultivation for six years, were void. After decree of March 26, 1834, and up to date of the Constitution of the Republic, they were void if made before issuance of title. Hunt v. Robinson, 1 T., 748; Robbins v. Robbins, 3 T., 496; Spillers v. Clapp, 3 T., 498; Desmuke v. Griffin, 10 T., 113; Emmons v. Oldham, 12 T., 18; Box v. Lawrence, 14 T., 545; Flanikin v. Fokes, 15 T., 180; Clay v. Cook, 16 T., 70; Soye v. McCallister, 18 T., 80; Atkinson v. Bell, 18 T., 474; Causici v. La Coste, 20 T., 269; Williams v. Chandler, 25 T., 4; Clay v. Clay, 26 T., 24; Ledyard v. Brown, 27 T., 393; Clay v. Clay, 35 T., 509; Jones v. Huff, 36 T., 678; Holmes v. Johns, 56 T., 41; Cook v. Lindsey, 57 T., 67; Grant v. Wallis, 60 T., 350; Brown v. Simpson, 67 T., 225; Sideck v. Duran, 67 T., 256; Houston v. Killough, 80 T., 296; Baldwin v. Goldfrank, 9 T. C. A., 269; Clay v. Clay, 2 U. C., 357; Buchanan v. Park (T. C. A.), U. R. C., 1896. Sale was sufficient consideration for a new contract and could be ratified after removal of prohibition. Hunt v. Turner, 9 T., 385; Burleson v. Burleson, 11 T., 2; Atkinson v. Bell, 18 T., 474; Clay v. Clay, 35 T., 509; Jones v. Huff, 36 T., 678; Grant v. Wallis, 60 T., 350; Williams v. Wilson, 76 T., 69; Sewell v. Laurence, 2 U. C., 376. Colonists could alienate at expiration of six years. Desmuke v. Griffin, 10 T., 113; Clay v. Clay, 16 T., 70; Atkinson v. Bell, 18 T., 478; Clay v. Clay, 26 T., 24; Thomas v. Moore, 46 T., 433. Under decree of 1834, colonist could sell, subject to occupation and cultivation by his grantee. Emmons v. Oldham, 12 T., 18; Atkinson v. Bell, 18 T., 474; Johnston v. Smith, 21 T., 722; Clay v. Clay, 26 T., 24. And so could a grantee of a concession under decree of 1825. Hancock v. McKinney, 7 T., 384; Jenkins v. Chambers, 9 T., 167; Murchison v. Hall, 10 T., 461; Ryan v. Jackson, 11 T., 391; Portis v. Hill, 14 T., 69; Marlin v. Stockbridge, 14 T., 165; Clay v. Holbert, 14 T., 189; Harris v. Hardeman, 15 T., 466; Fulton v. Duncan, 18 T., 34; Martin v. Parker, 26 T., 253; Manchaca v. Field, 62 T., 135. Under decree of January 4, 1823 (Gammel's Laws of Texas, vol. 1, p. 27), colonist could alienate at any time after receiving his grant. Portis v. Hill, 14 T., 69; Thomas v. Moore, 46 T., 433; Summers v. Davis, 49 T., 541. Title obtained under Act of December 14, 1837 (Gammel’s Laws of Texas, vol. 1, p. 1404), were not affected by inhibition in colonization laws, prohibiting sale for six years. Babb v. Carroll, 21 T., 765, 769; Moore v. Bullard, 24 T., 149; Clay v. Clay, 35 T., 509; Jones v. Huff, 36 T., 678.
      
        2 Nature, validity, obligation, construction and interpretation of contracts are determined by the lex loci contractus, unless a different place is fixed by the parties for performance. Hill v. McDermott, Dal., 419; Tinnen v. Mathews, Dal., 491; Huff v. Folger, Dal., 530; Gautier v. Franklin, 1 T., 732; Hays v. Cage, 2 T., 301; Snoddy v. Cage, 5 T., 106; Andrews v. Hoxie, 5 T., 171, 189; Campbell v. Wilson, 6 T., 379, 390; Raymond v. Holmes, 11 T., 54; Hall v. Harris, 11 T., 300, 305; McLeod v. Board, 30 T., 238; Cantu v. Bennett, 39 T., 303; Weider v. Maddox, 66 T., 372; Life Ass’n v. Harris, 94 T., 25; Apollos v. Staniforth, 3 T. C. A., 502; Merrielles v. State. Bank, 5 T. C. A., 483; Tilliard V. Hall, 11 T. C. A., 381; M. K. & T. Ry. v. Thompson, 11 T. C. A., 658; M. P. Ry. v. Harris, 1 App. C., sec. 1265. By place of performance. Ryan v. M. K. & T. Ry., 65 T., 13; Seiders v. Life Ass’n., 93 T., 194; Life Ass’n. v. Harris, 94 T., 25; Good v. Caldwell, 11 T. C. A., 515; Applebaum v. Bates, 3 App. C., sec. 167. If to be partly performed in different States, intention of parties governs. Ryan v. M. K. & T. Ry., 65 T., 13. Seems that marriage contracts are an exception to general rule of lex loci contractus. Shreck v. Shreck, 32 T., 578. If subject of contract is land, the lex loci rei sitas governs. A mortgage executed without the State, contrary to its laws or public policy, is void. Cantu v. Bennett, 39 T., 303; Fowler v. Bell, 90 T., 150. Contract valid under lex loci contractus is valid everywhere, unless in contravention of lex fori. If void under lex loci contractus, void everywhere. Andrews v. Hoxie, 5 T., 171, 189; Shelton v. Marshall, 16 T., 344; Ryan v. M. K. & T. Ry., 65 T., 13; Weider v. Maddox, 66 T., 372; Fowler v. Bell, 90 T., 150; Tuckett v. Herdic, 5 T. C. A., 690; T. & P. Ry. v. Davis, 2 App. C., sec. 191. If lex loci contractus is not alleged and proved, lex fori will be applied. Hill v. McDermott, Dal., 419; M. K. & T. Ry. v. Cocreham, 10 T. C. A., 166. Whether a writ is wrongfully sued out, is determined by the laws of the State where it was obtained. Wiley v. Traiwick, 14 T., 662.
    
   HEMPHILL, Chief Justice.

Maynard and wife brought this action in the court below against Scott and Solomon, to try the title to a certain lot of land in the town of Matagorda. The answer of the defendants denies the allegations of plaintiffs, and asserts title to themselves to the lot in question; filing interrogatories to be answered by the said Maynard, in relation to the consideration paid by him for certain improvements on the said lot. A conveyance of the said improvements by Scott and Solomon to Maynard is filed as an exhibit in the case; and Maynard’s answers to the interrogatories are, that the consideration consisted of cash advanced, goods sold, work done and liabilities assumed; and that it has not failed. Upon an affidavit of Scott and Solomon, a change of venue was granted, by the judge in chambers, to the county of Brazoria; but the cause was never transferred. Trial being had, judgment was rendered for plaintiffs, and a writ of possession to the lot in controversy awarded. A motion for a new trial was made on the following grounds, viz: that the court instructed the jury that the only question for their inquiry was as to the title to the lot, and that they were not to inquire into the value of the improvements, and that no survey of the property was ordered by the court; no demand of possession proven by the plaintiffs; and no notice to quit given to defendants. The motion was overruled, and an appeal taken. During the progress of the cause there were three several agreements of the counsel *of both parties in relation to the title of the wife of the said Maynard to the land in dispute; by the final modification of which it was admitted that she had become the owner thereof by purchase, after her marriage with the said William J. Maynard. The petition and answers in a suit in equity, instituted by Scott and Solomon against Maynard and wife, were offered in evidence. In his answer, the said William J. Maynard admits that some time in October, 1839, he offered verbally to sell to the said Scott and Solomon the said lot for the price of $600 in cash; that they, having accepted the proposition, took possession of the same, promising from day to day the payment of the said money in pursuance of their agreement, but had hitherto failed to do so. He admits that the said Scott and Solomon had erected a building on the said lot, but states that they had disposed of the same for a valuable consideration, and that his wife, C. 0. Maynard, is now sole owner and proprietor thereof. From some exhibits in the case it appears that this house was conveyed by Scott and Solomon to the said William J. Maynard and by him to one Thomas Stewart, and from the said Thomas Stewart to the wife of the said Maynard. A. C. Horton testifies, that Maynard admitted to him that he had sold the lot of ground to the appellants for $600, to be paid in sixty days. Maynard also stated that Scott and Solomon had made him a deed for the improvements, to secure him as their indorser. The value of the improvements he would estimate at four or five thousand dollars, at the time they were made. John W. McCamly testified that Maynard made similar admissions to him as to the sale of the lot, and that he had received the money. Witness thought that he had received property sufficient to satisfy him.

This cause was heard at the previous session of the Supreme Court. The arguments of counsel were then principally directed to the grounds urged in the motion for a new trial. To these points we will now first advert. The statute under which this action was brought was passed to prevent the complicated and fictitious proceedings of the action of ejectment, as known to the law, simplifying its form and modifying in some degree its action and effects. In the eighth section of that act it is provided, that on a suggestion of a defendant in possession of lands that he and those persons under whom he claims have had adverse possession of the land in controversy for at least one year previous to the commencement of the suit, etc., that the jury shall inquire into the truth of the suggestion, ascertain the value of the improvements, if any have been made, and give such judgment either for or against the defendant as the comparative value of the improvements and the damages sustained by the detention, use and occupation may require at their hands. The third section provides, that a survey shall be ordered by the judge of the land, in chambers or in court, or upon motion of either party, for the better finding out and discovering the truth of the matter in controversy. There was no error in the court below in overruling the points here made. As to the first, no suggestion as required by law was filed; and though the value of the improvements was proven, still no inquiry could be made by the jury, since there was no allegation in the answer under which the proof could be introduced, and any evidence therefore on that point was extrinsic to the issue. The provision with regard to the survey is merely directory where there is doubt, though a matter of right when required on motion; and since no motion was made for the survey, and no difficulty arose as to the proper designation and identification of the land, the petition and answer concur in their descriptions of the lot in dispute. There being, then, no necessity for the survey, there was no error in proceeding to trial without an order for the same. Equally unsound are the other reasons alleged in the motion. Demand of possession and notice to quit are necessary when the parties occupy the relative position of landlord and tenant. But the defendants claim the lot in controversy as their absolute property. The important questions which still present themselves, from an inspection of the record, are in relation to the interest or estate which the wife has to the land in contest; the husband’s power of disposing or selling of the same; and whether the sale, being made verbally, was valid and binding in law.

The alleged sale of the lot in question from Maynard to Scott and Solomon, having been made in 1839, before the introduction of the common law, the rights of the parties are regulated and must be determined by the system of laws prevailing in this Republic at the period of the transaction. As tested, then, by these laws, did the purchase by Mrs. Maynard of this property after her marriage vest in her any estate or interest separate and apart from that of her husband; or did it immediately become a portion of the community of “acquits,” or gains? By 1 reference to White’s Recopilación, we find that ganancial property is all that which is increased or multiplied during marriage; by multiplied, being understood all that which is increased by onerous cause, or title; and not by a heratine one, as inheritance or donation; that property is supposed to be common, except when proved to be separate or distinct; that what the husband or wife bring into marriage as their own peculiar property, or acquire during it by lucrative cause or title, does not come into partition; but that property acquired during marriage by purchase, sale, or other onerous cause or title, does. 1 White’s Recopilación, p. 61. Having no access to the works of Febrero, we are compelled to glean such extracts from that author, applicable to this subject, as may be found on examining the Reports of Louisiana. In Davenat v. Le Bocton, 1 La., 520, it was decided that by the Spanish laws everything purchased during the marriage fell into the common stock of gains, and at the death of either of the parties was to be divided equally between the survivor and the heirs of the deceased; and this effect was produced whether the purchases were made with the money or capital of the community, or with that of either of the married parties; whether in the name of both, or that of one of them separately. See Feb. add. part 2, lib. chap. 4, sec. 1, No. 6. In the Novissima Re-copilación (lib. 10, title 4, sec. 1), we find a law expressed in the following terms: '“Toda cosa que el marido y muger ganaren a compraon estando de consuno hay aulo ambos por medio,” etc. [Everything which the husband or wife shall acquire or purchase while together shall be equally divided between them, etc.] From an examination of the above authorities, we are justified in concluding that under the Spanish laws property acquired during marriage by purchase, whether the acquisition be made in the joint names of husband and wife or of either of them separately, must be considered as common property, and that if there be any exception to this general rule, it must be established by certain and positive evidence, or otherwise the presumption that the property is common will remain in all' its force unimpaired. It appearing, then, by the testimony that Mrs. Maynard acquired the lot in dispute by pms chase after marriage, the same was thrown into the common stock of gains, and by operation of law was impressed with all the incidents appertaining to ganancial property.

We proceed to consider the husband’s power of disposing or selling the same. In Sala, lib. 1, title 4, sec. 20, it is clearly laid down that, during the continuance of the marriage the actual dominion over the community property is vested in the husband, and that therefore he can sell the common property without the consent of the wife; and that such disposition is valid, except when made for the purpose of defrauding or prejudicing the wife. See also, 1 White’s Recop., p. 63, with the notes from Palacios. Maynard, then, having the administration of the ganancial property, and the power of disposing thereof without the consent of his wife, his alienations of the same, when not vitiated by the exception above mentioned, would be valid and binding in law. The question next in order is as to the validity of a verbal sale under the laws of Spain. In the 5th Partida, title 5, Law 6, it is said that sale and purchase may be affected in two ways, etc. “One of the modes is without writing; when the seller and buyer have mutually agreed upon the price; the one being pleased with the price and the other the thing, without mentioning any writing. We say that a sale thus made would be perfect, although no earnest had been given by the buyer to the seller; as they would be both bound for the fulfillment of the contract they had made.” In Gonzales v. Sanches and Wife, 10 N. S., 67, and in Ducrest’s Heirs v. Bijeau’s Estate, it was decided that, by the Spanish laws, parol evidence was admissible to establish the alienation or acquisition of immovable property; and in Sackett v. Hooper, 3 La., 104, the same doctrine was expressed in substance, though in the latter case, possession on the part of the vendee was maintained as a necessary incident to the validity of the sale. From an examination of the above law and authorities, we are of opinion that a verbal sale of lands, accompanied by possession on the part of the vendee, was valid under the laws in force at the time of making the contract (in this Republic). From the record, we think there was sufficient evidence that a verbal sale was made by the said Maynard to the appellants. His answer to the suit in equity partially admits the fact, and also of possession taken by the vendees. Two witnesses testify to his admissions of having sold the lot for $600; one of them says, to be paid in sixty days; and the other, that Maynard admitted the receipt of the money. The fact of the sale (which was valid in law) being thus established by evidence, the finding of the jury in favor of the plaintiffs in the court below was clearly erroneous. Before awarding final judgment, the court will take occasion to express its sense of the important assistance afforded them by the able and zealous efforts of the gentlemen of the bar, when their investigations are directed to the system of laws by which the matters in controversy must be decided. But when their arguments are based on some other system, which, however admirable for its justice or exalted for its wisdom, can exercise no other authority than that derived from the force of reason, their labors serve to perplex and confound, rather than remove the embarrassments which shroud the important principles involved in the controversy. The court appreciate the difficulty arising from the scarcity of books or authorities on questions arising under the former laws of the country. But it is clearly the duty of the attorneys to exhaust all which may be accessible to them before they turn for assistance to the common or any other system of law. Throughout the progress of this cause in the court below, as well as before this tribunal, there has been a strange compound of error, and a mixture of the different systems of jurisprudence, springing originally from the belief that the lot sold was the separate property of the wife. The errors which appear in the charge of the court below originate from this mistake; and from the conduct of the argument in this court, it is manifest that the principles of law which governed the case were not discussed before the district court; and from this circumstance the judge was misled to charge on principles of law which were not applicable to the case. Having maturely considered the matters presented on the record for our decision, we are of opinion that the judgment of the court below was erroneous and should be reversed; and it is therefore and hereby ordered, adjudged and decreed, that the judgment of the court below be reversed, and that the appellees pay the costs of suit.

Reversed.  