91 S.W. 246 | Tex. App. | 1906
Appellant is the independent executor of the last will of L. A. Toberman, deceased, and as such at the suit of appellee suffered a judgment for the sum of $950, from which he appeals. The facts show that the amount recovered had been paid by appellee upon a judgment rendered against L. A. Toberman and her husband P. Toberman as principals and appellee as surety. The judgment last mentioned was admitted to be valid at the time of its entry against both P. and L. A. Toberman and it is also admitted that it has never been set aside or paid. It was likewise shown that subsequent to appellee's said payments, P. Toberman took the benefit of the bankrupt act and was duly discharged in bankruptcy from the payment of all his debts. There was no recitation in the Toberman judgment to show that it was rendered upon any debt incurred on account of necessaries for L. A. Toberman or for the benefit of her separate property. Nor did the judgment specially provide for execution against the separate property of the wife, the award of execution being in general terms only. Appellant, however, proved that the debt for which judgment was rendered against P. Toberman and L. A. Toberman was a community debt and upon this ground, as also because of the failures noticed in the recitations of the judgment, contends that the Toberman judgment was not available as against the separate property of L. A. Toberman, deceased, and that the discharge of P. Toberman in bankruptcy also discharged his wife, L. A. Toberman.
We are of opinion that neither of appellant's said contentions is correct. As stated, it was admitted that the judgment against Mrs. Toberman was valid, and it hence closed all inquiry as to the grounds upon which it was rendered. Nor does the failure of the judgment to specifically authorize execution against the wife's separate property invalidate it or prevent satisfaction thereof out of Mrs. L. A. Toberman's separate property. These propositions seem to be so well settled that we content ourselves with a citation merely of some of the authorities where the questions are fully discussed. See Speer on Married Women, pp. 364 to 371; Carson v. Taylor, 19 Texas Civ. App. 178[
As to appellant's remaining contention it is sufficient to say that it is directly opposed to the express terms of section 16 of the Act of July 1, 1898, establishing a uniform system of Bankruptcy throughout the United States. This section provides that: "The liability of a person who is codebtor with, or guarantor or in any manner a surety *473 for, a bankrupt shall not be altered by the discharge of such bankrupt." See vol. 3, U.S. Compiled Stats., 1901, p. 3428. See, also, Elliott v. Booth, 44 Texas, and authorities cited at top of p. 188; Wolf v. Stix, 9 Otto. (U.S.), L.Ed., Bk. 25, 309; Hill v. Harding, 130 U.S. L.Ed., Bk. 32, 1083.
Upon the undisputed facts appellee was entitled to recover, and the judgment in his favor is accordingly affirmed.
Affirmed.