39 Tex. 432 | Tex. | 1873
Lead Opinion
The mortgage of the wife of her separate estate, which might be good in equity, might not be
The petition in this case was demurable, and the court erred in overruling the exceptions to it; secondly, in rendering judgment against the appellant on the note, and in foreclosing the mortgage as to her separate property.
In the case of Cartwright against Hollis, 5 Texas, 152, quoted by the appellees, the- question was as to the power of the wife to bind herself and her separate property by the execution of a promissory note. Her power to mortgage her separate estate for the payment of a pre-existing debt of the husband was non coram judice. The case of Trimble v. Miller, 24 Texas, 214; Covington v. Burleson, 28 Texas, 368; Menard v. Sydnor, 29 Texas, 257; as well as Lynch v. Elkes, 21 Texas, 229, are authorities in point against the doctrine of Hollis and Wife against Francois & Border, as claimed and understood by counsel for appellees.
The case of Brown v. Ector, 19 Texas, 346, is also an authority against the ruling of the District Court in this case. Perhaps we can more clearly state the rule by reference to the case of Hutchinson and Wife, 27 Texas, 255, than otherwise. It is there laid down “that the wife cannot charge her separate property for the payment of an account made, or a promissory note jointly executed with
The judgment of the District Court is reversed and the -cause remanded.
March 13, 1871.
Reversed and remanded.
E. B. Pickett, for appellees on motion for rehearing.— 'The only question involved in this case is whether a married woman can mortgage her separate estate for the payment of her husband’s debts. This question has long ■since been settled. (Shelby v. Burtis, 18 Texas, 644-9; Hollis v. Francois, 5 Texas, 195; Sampson & Keene v. Williamson, 6 Texas, 102.)
The authorities cited in the opinion do not touch the question. This court must overrule the above authorities to sustain the opinion.
Ho other brief for appellees has come to the hands of the Reporters.
Rehearing
on rehearing. — This case is upon a rehearing. It is an action based on a note of J. F. Rhodes and wife (K. A. Rhodes, the appellant), and to foreclose a mortgage executed in accordance with the ■forms of law by Rhodes and wife, on the day after the note was executed, to secure the payment of the note. This mortgage was given on community property, and also upon certain lands belonging to the wife in her separate right.
The petition set up the death of the husband, and that the wife has qualified as survivor of the community, and prayed for judgment against her in her individual and • representative character and for a decree of foreclosure. 'The defendant (appellant here) excepted to the sufficiency
She also pleaded specially that the debt was not of the character to bind her separate estate, but that it was the debt of her husband, created by him before the execution of the mortgage, and that both the notes and the mortgage were, as to her, without consideration.
The court below overruled her exceptions, and a jury being waived a judgment was rendered as prayed for by the plaintiffs. Exceptions were taken to these rulings, and an appeal was taken to this court.
The appellant assigns as errors the action of the court—
1. In overruling her exceptions to the petition.
2. In rendering judgment against appellant on the note.
3. In foreclosing the mortgage on her separate property.
This brings up the question, so often heretofore before' this court, can the wife, under our Constitution and laws, encumber by mortgage her separate estate to secure the payment of a debt created by the husband before the execution of the mortgage ? We are asked in this case te reopen this legal question, to review the former decisions of the court, and to reverse the rules laid down in Hollis and Wife v. Francois & Border, 5 Texas, 195, and the various decisions running down through the succeeding volumes of the reports.
It is insisted by appellant’s counsel that in some of the later cases the original rulings of the court have been already shaken. We know of but one case in which an intimation of the kind is to be found. We refer to the case of Magee v. White, 23 Texas, 180, in which a most
We are cited by counsel to the cases of Lynch v. Elkes, 21 Texas, 229; Trimble v. Miller, 24 Texas, 214; Covington v. Burleson, 28 Texas, 368; and Menard v. Sydnor, 29 Texas, 257, as authorities also to support the position that" in all cases where suit is brought against a married woman, it is necessary to allege and prove that the debt was contracted by the wife for necessaries furnished herself and children, or for the benefit of her separate property. None of these authorities support the position, while one-of them (Menard v. Sydnor) clearly recognizes the authority of a married woman to encumber her property by' deed of trust, without averment of the uses for which the-debt was contracted. In that case Menard and wife executed a deed of trust to Sydnor on land of the wife’s, with the power to sell their interest in the land conveyed within one year, at a price to be agreed upon by the- * grantors, so as to reimburse to Sydnor $570 and interest thereon; but if not sold in one year, then Sydnor was to-sell the land at public auction; and if the land should-bring more than enough to satisfy the debt and interest, the overplus should be paid oyer to the mortgagors ; but ■ if it should bring less than the debt, then Sydnor should take the whole sum and the debt should be considered as ■ settled. Sydnor did not sell at all, but brought suit, averring that the land was unsold, and praying for the sale of the land and for general relief. The defendants pleaded that Sydnor had not complied with his contract. Judgment was rendered foreclosing the mortgage, and that-“should the proceeds of the sale be insufficient to satisfy
Mr. Justice Coke, delivering the opinion of the court, clearly recognizes the binding force of the deed of trust according to its terms, but very justly restricts the obligation to the very terms. He says : “The defendant in error seeks the enforcement of a contract when it is beneficial, and must stand to its terms when it is onerous. The defendant in error has a right to recover according to the terms of the deed of trust which he relies on to establish his demand, and that is his principal debt and interest, if the land will bring it. If it will not bring so much, then he can recover only what it will bring.”
In Trimble v. Miller, and Covington v. Burleson, suits were upon simple notes of hand, made in each case by the husband and wife, and were, of course, held not to bind the wife; while in Lynch v. Elkes the note was given by husband and wife to secure the purchase money; and the court decided that the wife was only bound as to the property purchased, and that a judgment over against her could not stand. That a married woman can make no simple contract, even in writing, either alone or jointly with her husband, which will bind her upon merely tendering in proof the contract, is too well settled to admit of discussion. This court has so held the law to be in a long line of decisions. It has been uniformly held, that such a contract must have been made by the wife, or by ■her authority, and that the consideration of the contract -was for necessaries for herself, or her children, or for the use and benefit of her separate property. In other words, a married woman, by a simple contract, express or implied, does not, by operation of law, create a liability against her which binds her separate estate; but if the debt be for necessary supplies for herself and children, -or for the benefit of her separate property, and the hus
It is this character of debts, which grow ont of the acts-of a married woman, and the uses of the consideration of the contract, which create a legal obligation on her. That legal obligation is in personam. Execution will run against her as if she were a femme sole, and will reach every part of her estate not exempt from forced sale.
It is to this class of contracts that the cases just referred to related, and not to contracts by solemn deed, executed by the husband and wife in the manner prescribed by law. (Paschal’s Digest, Art. 1003.) A reference to the-statute which created this personal liability will not fail to satisfy the legal mind of the correctness of the view just taken.
It reads as follows: “The husband and wife may be jointly sued for all debts contracted by the wife for necessaries furnished herself or children, and for all expenses which may have been incurred by the wife for the benefit of her separate property.” (Pas. Dig., Art. 4643.)
Under this statute, the mere purchase by her, whether-at a stipulated and agreed price, or the article be ordered by her, a suit will lie on the agreed terms of the purchase, or in assumpsit for the reasonable value, if the purchase be for the “necessaries” specified.
But the class of obligations in which this case falls is of a very different character. The obligation is solemnly and voluntarily incurred, not created by law. The action is not one in personam only, but. in rem as well. It, grows out of her solemn deed, and is supported by her right to convey. The Constitution (Art. 11, Sec. 14) declares her right to own and hold, in her own name, and
We have decided, at the present term of this court, in Jordan et al. v. Peak and Wife, that a deed of trust or mortgage, executed to secure the payment of a debt, was the conveyance of the fee for the uses and purposes of the •trust; and when executed by the husband and the wife, in the solemn mode prescribed by law, that the mortgagees had no power to withdraw from the contract or to stay the execution of the trust. The whole subject here treated of was by us most thoroughly considered in our ■investigation of that case ; and our investigation of this but strengthens our convictions of the correctness of the principles laid down in that case.
We must confess that we cannot conceive how the law should permit a married woman absolutely to convey mway her entire estate at will, and for any moving consideration that might prompt her; and yet she cannot -convey in trust or by mortgage with the same freedom. If she can sell all of her interest in her separate estate and pay her husband’s debts with the proceeds, may she not with equal freedom convey it in trust to secure that debt ?
There has been expended, in a line of decisions on this •subject, by our predecessors, a great amount of labor, and there has been a great amount of learning displayed in.establishing the law on the subject of the wife’s power
Those laws have been construed by our predecessors. We see no reason to change their rulings. We believe the law as it is and a sound public policy alike demand that we adhere to the former decisions of this court on this subject.
We therefore recede from the former opinion in this case, revoke the former judgment of this court, and affirm -the judgment of the court below.
October 31, 1873.
Affirmed.
