George v. Stevens

31 Tex. 670 | Tex. | 1869

Morrill, C. J.

—When the congress of the Republic of Texas, through the influence of a disciple of Coke, passed, an act introducing the common law of England to be the rule of decision of the republic, it was fortunate for the female branch of the human family that there were in that legislative assembly those who were unwilling that wives should occupy the station assigned them by the common law of England. So discordant is the common law of England with the statutes declaring marital rights — so utterly inconsistent is that law, which merges the political and judicial existence of a woman in her husband on marriage, with the laws that concede to a wife her separate rights of property and person, and a standing in the judicial tribunals to sue for and defend them — that a system of jurisprudence based upon a mixture of these incongruities, cannot be otherwise than discrepant and incongruous. A verification of these remarks may be found in the reports of this state.

The question for adjudication, stripped of all superfluity, is simply whether a woman who, with a supposed husband, but in reality not her husband, made a note in consideration of a slave purchased by her, is liable to pay the note.

The statute [Paschal’s Dig., Art. 4641] provides, that X<A1I property, both real and personal, of the wife, owned or claimed by her before marriage, and that acquired after-wards by gift, devise, or descent, as also the increase of all lands or slaves thus acquired, shall be the separate property of the wife: Provided, That during the marriage the husband shall have the sole management of all such property.”

Article 4643 provides, that “ The husband and wife may be jointly sued; for all debts contracted by the wife for necessaries furnished herself or children, and for all the expenses which may have been incurred by the wife for the benefit of her separate property.”

.These two articles furnish ample solution for the question proposed.

When the statute declares that the wife’s property shall remain her separate property, it certainly does 'not destroy one of the great characteristics of property — its vendible quality — or the right of the wife to acquire other property upon the credit of property owned and possessed. And when the husband, or supposed husband, as in this case, united with her in the execution of a note for the purchase of property, this act was full, ample, and complete proof of the consent required in his “ management of the property.”

It was for them to decide whether the property pur-' chased' was necessary for herself when they made the purchase; and, having contracted the debt for this purpose, they may be jointly sued on it.

We see no reason why the wife, with the consent of her husband, may not enter into any contract or speculation, based upon her property, or why, when having thus done, she should not be required to comply with the requirements of her contracts.

There is no error in the judgment, and it is

Affirmed.