Teague v. Burk

3 S.W.2d 461 | Tex. App. | 1927

This appeal is prosecuted from an order of the district court dissolving a temporary injunction. W. E. Burk, one of the appellees herein, recovered a judgment against appellants, Mrs. Willie E. Teague and her husband, L. B. Teague, on two separate obligations. The first obligation recovered upon was a note signed by L. B. Teague, but which the jury found, in response to the only issue submitted to them was executed and delivered by him as agent of his wife for supplies used in making a crop on certain land which was her separate property. The other obligation recovered upon was a note executed by appellants to appellee Burk. There was nothing in said note nor in said judgment indicating the nature of the consideration therefor. Said judgment shows a separate recovery of an unconditional personal judgment against each of appellees on each of said obligations. Appellee Burk sued out an execution on said judgment, and caused the same to be levied by appellee Morrow, sheriff of Henderson county, on certain lands, all of which were the separate property of Mrs. Teague. Appellants thereupon sued out a temporary injunction, restraining the sale of said property. Said injunction was dissolved on motion of appellees, but was by order of the court held in full force and effect pending appeal.

Opinion. Appellants contend that, since one of the obligations recovered upon in said judgment was for supplies furnished Mrs. Teague to enable her to make a crop on her separate lands, the indebtedness evidenced thereby is a community debt, and cannot be enforced against her separate property. The crop in the production of which said indebtedness was incurred was community property, and it follows that said indebtedness was also community. Said crop, however, was produced on land belonging to the separate estate of the wife and was therefore not subject to the payment of debts contracted by the husband (R.S. art. 4616), but was subject to the payment of debts contracted by the wife (R.S. art. 4623; Gohlman, Lester Co. v. Whittle, 114 Tex. 548, 273 S.W. 808 et seq.). All this appellants concede, but they claim that only community property confided by statute to the exclusive management and control of Mrs. Teague can be subjected to the payment of such indebtedness. We do not believe such contention sound. In the case of Gohlman, Lester Co. v. Whittle, supra (114 Tex. 557, 273 S.W. 810, 811), Judge Greenwood said:

"The almost obvious implication of the statutes is to make her separate property and the portions of the community committed to her charge liable for the payment of the wife's contracts entered into as necessary incidents to the exercise of her powers of management, control, and disposition. For, if such property is not so liable, then nothing is, and an intent cannot reasonably be ascribed to the Legislature to authorize an obligation and at the same time render its enforcement impossible."

We are content to rest our decision of this issue on the language of Judge Greenwood so quoted, and on Cauble v. Beaver-Electra Refining Co.,115 Tex. 1, 274 S.W. 120, 121, 122.

Both of the recoveries awarded appellee Burk in said judgment were against Mrs. Teague personally as well as against her husband, and were unconditional. A married woman is bound by such a judgment the same as any other litigant. Nichols v. Dibrell, 61 Tex. 539, 541; Howard v. North, 5 Tex. 290, 297, 298, 51 Am.Dec. 760; Baxter v. Dear, 24 Tex. 17,21, 76 Am.Dec. 89. An execution issued on a personal judgment against a married woman may be levied upon, and satisfied out of, her separate property. Howard v. North, supra; Carson v. Taylor, 19 Tex. Civ. App. 177,47 S.W. 395, 396 (writ refused); Taylor v. Stephens (Tex.Civ.App.)42 S.W. 1048, 1049 (writ refused); Lane v. Moon (Tex.Civ.App.)103 S.W. 211, 215 (writ refused); Love v. McGill, 41 Tex. Civ. App. 471,91 S.W. 246, 247; Walters v. Cantrell (Tex.Civ.App.) 66 S.W. 790, 791, and authorities there cited.

Appellants further contend that the court erred in dissolving said injunction because the notice of sale served upon them did not state the amount due on the judgment sought to be enforced by the levy complained of. The requirements of a notice of sale of real estate under execution are statutory, and a recital of the amount due is not included in such requirements. The notice of sale was sufficient, and the omission of a recital of the amount due on the judgment afforded no ground for enjoining the sale of the property levied upon. Citizens' Nat. Bank v. Interior Land Immigration Co., 14 Tex. Civ. App. 301, 37 S.W. 447,449; Mason v. Letcher Coal Coke Co., 196 Ky. 629, 245 S.W. 130,132, par. 4.

The judgment of the trial court is affirmed.