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be performed within the time. Questions calling for its application have frequently arisen in cases like the one now be fore us that is to say, in cases of subscriptions for the construction of railroads and other like improvements, and so far as we have been enabled to discover,- where there is nothing on the face of the contract itself tending to show that time was not of the essence of the engagment, it has been nearly if not quite uniformly held, that 232 if the work was not completed within the specified time, the promisor was not liable. Such was the case of Slater v. Emerson, 22 How. 28. There "a railroad company became embarrassed, and were unable to pay the contractor, and a person interested in the company agreed to give the contractor his individual promissory notes if he would finish the work by a certain day," and it was held that the contractor could not recover because he had not finished the work within the stipulated time. The case was cited with approval and the rule was followed in the following cases: Hall v. United States, 96 U. S. 28; Jordan v. Newton, 116. Mich. 674, 75 N. W. 130; Persinger v. Bevill, 31 Fla. 364, 12 South. 366. See, also, to same effect, Indianapolis etc. R. R. Co. v. Holmes, 101 Ind. 348; Bohn Mfg. Co. v. Lewis, 45 Minn. 164, 47 N. W. 652. The principle has. been applied even as to subscriptions for stock in a railroad company where the subscription is made upon condition that the road is to be completed within a certain time. But the case before us is a stronger one. A stockholder acquires an interest in the company, a property right; a prom-isor of a bonus to a railroad company acquires no right by a construction of the road. He looks only to the incidental advantages that may result from such construction. It would seem but reasonable that in the latter case the promisee should be held to a rigid compliance with the conditions of the contract. In the case of the Presidio Min. Co. v.. Bullis, 68 Tex. 581, 4 S. W. 860, this principle was held applicable to a contract for the sale of real estate, to which ordinarily a less rigid rule applies. In that case the court say: "It was left entirely at the option of Cooke whether he would take the land at the end of the year or not; and, in such cases, it is the general rule, to which this case is no excep-tion, that time is of the essence of the contract." So in this case the appellant did not bind himself to do anything, and the appellee merely promised to pay in consideration of the construction of the railroad on or before a certain day.

A contract to pay money in consideration that the promisee will build a railroad by a certain time implies very clearly that that money is to be paid only on condition that the road be constructed within the time; and in our opinion time in such a case is of the essence of the contract. The fact that the parties by subsequent agreement extended the time for the completion of the road, shows that such was their own construction of the contract, and, even if it were a doubtful matter, ought to have a controlling effect in determining their intention. The cases mainly relied upon by counsel for appellant are Traer v. Stuart, 46 Iowa, 15, Front Street etc. Ry. Co. v. Butler, 50 Cal. 574, and Seley v. Railroad Co., 2 Wills. App. Cas., sec. 87. The contract in each of the two cases first mentioned contained special stipulations as to the time of payment, from which the court drew the inference that the time of special performance was not an essential feature of the contract. They are, therefore, whether correctly or incorrectly decided, distinguishable from the present case. Seley v. Railway Co., 2 Wills. App. Cas., sec. 87, 233 is based principally upon the authority of the other two cases, and may also be distinguished from the case before us by reason of a difference in the stipulations in the contract.

We answer the first question in the affirmative, and since the parol evidence introduced did not tend to show that the intention of the parties was not to make time an essential element in the agreement, we deem it unnecessary to answer the others.

Time as the Essence of Contracts is considered in the note to Jones v. Robbins, 50 Am. Dec. 597-600. If time is expressly made of the essence, the provision will not be ignored in equity: Glock v. Howard etc. Colony Co., 123 Cal. 1, 69 Am. St. Rep. 17, 55 Pac. 713. Time is an essential element of a contract whereby one binds himself to convey a right of way on condition that within four months the construction of a railroad shall commence, and within three years be completed: Thornton v. Sheffield etc. R. R. Co., 84 Ala. 109, 5 Am. St. Rep. 337, 4 South. 197.

NOLAN v. MOORE.

[96 Tex. 341, 72 S. W. 583.]

MARRIED WOMAN-Conveyance of Executed by Attorney in Fact. A power of attorney executed by a married woman authorizing the donee of the power to sell her separate real property is valid, and her conveyance executed under such power, in which her ausband joins, transfers such property under a statute declaring that a husband and wife shall join in a conveyance of real estate, the separate property of the wife, and that no such conveyance shall take effect until acknowledged by her privily and apart from her husband before some officer authorized by law to take the acknowledgment of deeds. (p. 913.)

Frost, Neblett & Blanding, for the plaintiffs in error.

Know & Johnson and Simpkins & Mays, for the defendants in error.

343 BROWN, A. J. On the twenty-second day of January, 1884, John T. Moore and Lula H. Moore were husband and wife and have so continued down to the present time. They resided at that time in Jefferson county, in the state of Mississippi. In her separate right Lula H. Moore owned in Texas the land in controversy, and on the day above stated, she being at home in Mississippi and John T. being in the state of Texas, the said Lula H. Moore executed and acknowledged, in the manner and form required by the laws of Texas, a power of attorney to James L. Autry, of Navarro county, Texas, by which she empowered and authorized the said Autry to sell and convey the land sued for in this case, as well as other lands in Texas. John T. Moore did not join in the power of attorney, which was forwarded to James L. Autry and recorded in Navarro county on the fourteenth day of February, 1884. On the thirteenth day of August, 1884, John T. Moore joined with James L. Autry, who acted under the said power of attorney for Lula H. Moore, in executing a deed which conveyed the land sued for to F. L. Smithey for a cash consideration of nine hundred dollars then paid. At the date of the trial the land was worth fifteen dollars per acre without regard to the improvements, and with the improvements it was worth thirty dollars per acre. On the sixteenth day of February, 1889, Lula H. Moore, joined by her husband, instituted this suit against the plaintiffs in error, who claimed under Smithey, to recover the land, and judgment was given

by the trial court in favor of the plaintiffs, which was affirmed by the court of civil appeals.

The following article of the Revised Statutes prescribes the mode by which a husband and wife may convey real estate, the separate property of the wife: "Art. 635. The husband and wife shall join in the conveyance of real estate, the separate property of the wife; and no such conveyance shall take effect until the same shall have been acknowledged by her privily and apart from her husband, before some officer authorized by law to take acknowledgments to deeds for the purpose of being recorded and certified to, in the mode pointed out in article 4643."

The term "conveyance" as used in the above article signifies the deed which transfers the title from the wife to the purchaser: McCabe v. Heirs of Hunter, 7 Mo. 357. The word "join" means that the husband and wife must unite that is, act together in the execution of the deed. The question involved in this case is, Must the husband and wife each in person execute the same paper, deed or power of attorney to make the conveyance their joint act?

It has been settled by this court that the husband and wife need not personally sign the deed, but may jointly appoint an agent by a power of attorney, duly executed by them, who, acting for both, can make a valid conveyance of the wife's separate real estate: Patton v. King, 26 Tex. 685, 84 Am. Dec. 596; Warren v. Jones, 69 Tex. 462, 6 S. W. 775. In each of the cases cited, the husband and wife appointed an agent by a power of attorney, 344 jointly executed by them, and this court held that the conveyance made by such agent was valid.

It has likewise been held by this court that the husband and wife need not execute the conveyance at the same time, but the husband having signed and acknowledged a deed conveying his wife's separate real estate, she may at a subsequent time sign and acknowledge the same instrument and thereby make it effective from the time of her signature and acknowledgment: Halbert v. Bennett (Tex. Civ. App.), 26 S. W. 913. In the case last cited, the husband held a power of attorney from his wife empowering him to sell certain land, her separate estate, which he conveyed, signing his wife's name by himself as agent and his own name as her husband. Two years after that date the wife signed and acknowledged the same deed and the court of civil appeals of the fifth district held the deed to be valid from the

time of her signature and acknowledgment. This court refused a writ of error in that case, thereby adopting the opinion of the court of civil appeals, there being but one question presented by the application. It is likewise established by this court that the husband may empower the wife to sell her separate real estate, acting for herself and as his agent: Rogers v. Roberts, 13 Tex. Civ. App. 190, 35 S. W. 76. In that case the court likewise refused a writ of error, there being but the one question presented by the application. We conclude that a married woman, by a power of attorney executed and acknowledged by her alone, may authorize a third person to sell and convey her land, and that such person acting with the husband can convey her separate real estate.

John T. Moore and his wife joined in the deed to Smithey as effectually as if both had been represented by Autry, or Moore had been represented by his wife, she acting for herself. The privy acknowledgment of the power of attorney guarded the wife against undue influence by her husband, and she had the right to revoke the power at any time before the deed was delivered. The power of attorney was inoperative until the husband joined in the deed which secured his right to manage the property. Every beneficial purpose of the law was accom. plished: Patton v. King, 26 Tex. 685, 84 Am. Dec. 596. The trial court erred in excluding the power of attorney and deed, for which the judgment must be reversed. We cannot render judgment because the evidence was excluded, therefore the cause will be remanded, the defendant in error to pay all costs of the court of civil appeals and of this court.

Reversed and remanded.

Powers of Attorney by married woman are discussed in the monographic note to Security Sav. Bank v. Smith, 84 Am. St. Rep. 761772.

Am. St. Rep., Vol. 97-58

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