King v. Driver , 160 S.W. 415 ( 1913 )

This is an appeal from an order of the judge of the district court of Cameron county, Tex., in vacation, granting a temporary injunction restraining appellants, Nettle G. King and W. 0. King, defendants below, from depriving appellees, plaintiffs below, of their alleged right to reasonable ingress and egress to and from the second story of a certain building owned by appellees in the town of San Benito, over and through a certain stairway in a building situated on an adjoining lot, alleged to be owned by defendant Nettie G. King, which right is alleged to have been secured by virtue of two certain contracts, which were, in substance, as follows: In one, the appellants, Nettie G. King and her husband, conveyed to appellee Driver a perpetual right of passage for himself and his tenant, F. C. Van Ness, through a hall in a house to be built by them upon separate property of the wife. In consideration of the grant of this easement appellants were conveyed a half interest in a portion of the brick wall of appellee's adjoining building. This contract was signed by King and his wife and by Driver, but was not acknowledged by any of them. The other contract was signed by Driver, Van Ness, and King, but was not signed by Mrs. King. It was an agreement by King to construct the passage or hall in a certain manner, so that it would be suitable for the easy passage of appellees, Driver and his tenant, Van Ness, to and from their own premises. It also renewed the agreement and conveyance of the easement or right of way through the house to appellees. This contract, however, concluded with these words: "This easement is granted with the express agreement that second parties and their tenants shall not use said stairway in a way to injure first party's property or to annoy him or his tenants and this provision shall be construed as a condition precedent in making this grant."

Appellees, in their petition, nowhere allege that the passage was not or had not been used by them "in a way to injure" appellants' property "or to annoy them or their tenants." The rule in Texas now is established that in petitions for injunction the allegations "must negative every reasonable inference arising upon the facts so stated, from which it might be deduced that petitioner might not, under other supposable facts connected with the subject, be entitled to relief." Schlinke v. De Witt County, 145 S.W. 665, and cases cited; Hicks v. Murphy, 151 S.W. 845, and cases cited. This writ of injunction was granted without a hearing, and must be here determined upon the pleadings alone. The above clause in the contract, set out in the petition itself, reveals a fact from which it is easily supposable that appellees were not entitled to the extraordinary relief sought, and the trial court should have refused the writ.

The petition further shows upon its face that the land over which appellees attempted to grant an easement was the separate property of Nettie G. King, a married woman, and that the instrument, though signed by her, is not verified by her separate acknowledgment in statutory form. That an easement over land is such an interest in the land as to require in its conveyance the same formality as is necessary for the conveyance of the fee is too well settled for discussion. T. P. Ry. Co. v. Durrett, 57 Tex. 48; Shepard v. Railway Co.,2 Tex. Civ. App. 535, 22 S.W. 267; Toyaho Creek Irrigation Co. v. Hutchins, 21 Tex. Civ. App. 275, 52 S.W. 101; s. c., 93 Tex. 675,52 S.W. 101; City of San Antonio v. Grandjean, 91 Tex. 430, 41 S.W. 417,44 S.W. 476. And it is statutory that the conveyance of a wife's separate real estate is valid only when made by deed duly acknowledged. R.S. 1895, art. 635; T. P. Ry. Co. v. Durrett, 57 Tex. 48.

Nor is Mrs. King estopped by reason of having received money or a benefit from the transaction. "To estop a married woman from asserting her rights to land it is essential that she should be guilty of some positive fraud, or else of some act of concealment or suppression, which in law would be equivalent thereto." McLaren v. Jones, 89 Tex. 135,33 S.W. 851, and cases cited. There is no allegation that Mrs. King was guilty of any fraud or misconduct in this case.

Appellees insist that since the house built upon the land was built with community funds, and the grant was only for the use of a passageway in this house, it did not attempt to convey an interest in the wife's real estate, and was therefore valid, although the grant purported to convey a perpetual use. We have been cited to no authorities sustaining this proposition, nor have we found any. Besides the record does not show that the house was built with community funds.

The judgment of the lower court is reversed, and judgment here rendered that the temporary injunction granted by that court be dissolved.