57 S.W. 25 | Tex. | 1900
The Court of Civil Appeals for the Third Supreme Judicial District has certified to this court the question hereafter stated, based upon a statement of the case, from which we make the following statement of the facts material to the question submitted:
C.L. Trigg and A.F. Trigg, now Boyd, were married prior to December 21, 1882, on which date the land in controversy was conveyed to C.L. Trigg. During the marriage, C.L. Trigg contracted a debt to H.C. Ghent, upon which Ghent filed suit in the County Court of Bell County on May 15, 1888, and judgment was rendered in favor of Ghent against Trigg December 18, 1888, for the sum of $454.30. On the same day, an abstract of the judgment was filed and recorded in the office of the county clerk of Bell County and an execution was issued upon the judgment within twelve months and returned, "no property found." On October 3, 1894, an alias execution was issued upon the judgment, directed to the proper officers of Bell County, and was, by the sheriff of that county, levied upon the land in controversy, which was duly advertised and was sold at public outcry November 6, 1894, H.C. Ghent being the purchaser for the sum of $200, which was credited upon his execution; and on the 19th day of November, 1894, the sheriff made and delivered to Ghent a deed conveying to him the land so sold. On the day the deed was made, Ghent filed a suit in the District Court of Bell County against A.F. Boyd (formerly A.F. Trigg) and her husband, J.W. Boyd, to recover the land.
On March 29, 1888, Mrs. A.F. Trigg filed a suit in the District Court of Bell County against her husband, C.L. Trigg, for divorce, for the custody of their minor child, and for the partition of their common property and settlement of their property interests. On December 19, 1888, the divorce was granted, the custody of the child awarded to the mother, and the property in controversy, with some other not necessary to name, declared to be the community property of Trigg and his wife. The trial of the case began December 13, 1888, and judgment was entered on the 19th of that month. The court adjudged all of the costs of the proceedings against C.L. Trigg, but provided in the judgment that if the costs could not be collected from him, then the plaintiff, A.F. Trigg, should pay all such costs, excepting the cost of taking certain depositions and procuring testimony by Trigg, and further specified that in case Mrs. Trigg paid any of the costs, she should be allowed a credit for it in the partition of the community property. On the 23d day of January, 1889, the District Court amended its original judgment so as to give Mrs. A.F. Trigg a judgment against C.L. Trigg for $110, costs already paid by the former, and for the sum of $353.35, the amount which C.L. Trigg had received from the community property in excess *547 of his share, and the court declared that for these sums, Mrs. A.F. Trigg should have a lien upon the community real estate, including that now in controversy, foreclosing the lien in her favor upon the land. The judgment also provided that in case Mrs. Trigg should pay any other sum of the costs of the suit, then she should have a lien upon the property to reimburse her for such payments as she might thereafter make. It was declared that the land was not susceptible of partition between the parties and the court ordered that it be sold for the purposes of partition, and that "after deducting from the interest of the respective parties all costs and charges which may have been adjudged against it," the proceeds of such sale should be equally divided between the parties. After the divorce was granted, Mrs. Trigg paid out of her separate funds $646, in settlement of the costs of the suit. At a date not named in the statement, an order of sale was issued upon the decree and the land in suit was sold by the sheriff of Bell County as under execution, was bought in by Mrs. Trigg, and duly conveyed to her by deed. During the marriage, C.L. Trigg borrowed $7000, which was secured by a mortgage on the separate property of Mrs. A.F. Trigg, which sum she was compelled to pay out of her separate property after the divorce was granted. The money borrowed by Trigg was not used for her benefit nor for the benefit of her separate property, which produced revenue enough to pay for all improvements made upon it.
Upon this statement, the following question is submitted:
"Assuming that the property was not homestead, did Ghent, by having the abstract of his judgment against C.L. Trigg properly recorded and indexed in the judgment records of Bell County one day prior to the rendition of the judgment referred to in the suit of Mrs. A.F. Trigg (now Boyd) against her former husband, C.L. Trigg, fix and secure a lien on the entire property in controversy superior to both or either of the liens adjudged and decreed to Mrs. Trigg by said decree?"
To the question we answer, he did.
The judgment in favor of Ghent against Trigg was rendered for a community debt of Trigg and his wife, and the land, being their common property, was liable for this debt, and would have been if it had been set apart to the wife in the proceedings for a divorce before the judgment was rendered against Trigg. Grandjean v. Runke, 39 S.W. Rep., 945. When the judgment was duly recorded and indexed in the office of the county clerk of Bell County, a lien was created upon all of the community lands of Trigg and his wife in that county, which could not be displaced or postponed by a decree entered in a suit to which Ghent was not a party. Richey v. Hare,
The suit by Mrs. Trigg against her husband for divorce did not suspend the rights of creditors of Trigg to collect their debts by suit against him. The only limitation placed by the statute upon the power of the husband to deal with the common property during the pendency of a suit for divorce is that he shall not sell the lands with a view to fraudulently injure the rights of the wife. Rev. Stats., art. 2983; Moore v. *548
Moore,
We do not understand counsel for plaintiffs in error as disputing any of these propositions, but they claim that only the interest of C.L. Trigg in the property after the rights of the wife had been ascertained and her equities adjusted, could be subjected to the payment of this debt. By this contention, counsel asserts the rule of law that would apply if it were partnership property and the judgment were the debt of one partner; but the rule has no application in this case. If Trigg and wife had been partners in business, she could not have had a dissolution and partition of partnership property except upon settlement of all partnership debts. A sale of partnership property under a judgment against the firm conveys the right of all partners, and there is no need to ascertain the interest of each partner. The interest of both members of this quasi partnership was liable, and if Mrs. Trigg had died before it was rendered, the land could have been sold under this judgment. Carter v. Connor,
In submitting this question, the court states that Trigg had borrowed $7000, secured by mortgage upon his wife's separate property, which was paid by her out of her separate funds after the divorce. We see no bearing that this fact can have upon the rights of the parties in this suit.