Austin v. Crim

• Decision Date: 13 October 1927
• Docket Number: (No. 3428.)
• Parties: AUSTIN, Banking Com'r, v. CRIM et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

299 S.W. 322

AUSTIN, Banking Com'r, v. CRIM et al.^*

(No. 3428.)

Court of Civil Appeals of Texas. Texarkana.

October 13, 1927.

Dissenting Opinion October 27, 1927.

Rehearing Denied October 27, 1927.

Appeal from District Court, Gregg County; P. O. Beard, Judge.

Suit by J. L. Chapman, as Banking Commissioner, against Mrs. Maggie L. Crim and husband. Plaintiff was succeeded by Chas. O. Austin, Banking Commissioner, who conducted the prosecution of the suit in his own name. From an adverse judgment, plaintiff appeals. Reformed, and as reformed affirmed.

October 18, 1923, the Fannin County Bank, incorporated under the laws of Texas, being insolvent (but when it became insolvent does not appear in the record), was in charge of J. L. Chapman, then banking commissioner, for liquidating purposes. As authorized by law (articles 455 and 535, R. S. 1925; Const. art. 16, § 16), said Chapman, as such commissioner, on October 24, 1923, levied an assessment of 100 per cent. on the par value of the capital stock of the bank to obtain money necessary to pay its debts. Appellee Mrs. Maggie L. Crim then owned 50 shares (of the par value of $100 each) of said stock, and the assessment against her amounted to $5,000. She failed to pay the assessment; whereupon this suit to enforce payment thereof was commenced and prosecuted against her and her husband, appellee J. T. Crim, by said J. L. Chapman as banking commissioner. The prosecution of the suit was continued by appellant, Austin, after he succeeded said Chapman as banking commissioner. It was alleged, and at the trial conceded to be true, that Mrs. Crim became the owner of the stock before she married said J. T. Crim, and at a time when she was a single woman. Appellant's contention was that he was entitled to judgment against Mrs. Crim for the amount of the assessment, and to have same satisfied out of her separate estate and her interest in the community property between her and said J. T. Crim. Mrs. Crim's contention was that appellant was not entitled to have such a judgment against her so satisfied, but was entitled to have same satisfied only out of her separate property and the income, rents, and revenues thereof and her personal earnings. The trial court thought Mrs. Crim's contention should be sustained, and in rendering judgment for appellant against her for the amount of the assessment provided that it should "only be made (quoting) out of her separate property and the incomes, rents, and revenues therefrom and her personal earnings of the community as now provided by law in such cases." J. T. Crim was a mere pro forma party to the suit, and the judgment was neither for nor against him.

Henry G. Evans and S. F. Leslie, both of Bonham, for appellant.

Young & Stinchcomb, of Longview, for appellees.

WILLSON, C. J. (after stating the facts as above).

It appears in the record sent to this court that the parties agree that the only question presented "is (quoting) one of law as follows: Is the interest of the wife in the community property subject to the payment of her antenuptial debts, and should the judgment of the court direct that execution be levied upon her interest in community property?" We think the question should be answered in the affirmative.

The common-law rule that made the husband and not the wife liable for debts contracted by the latter before her marriage (30 C. J. 585) seems never to have been law in Texas (Howard v. North, 5 Tex. 290, 51 Am. Dec. 769; Nash v. George, 6 Tex. 234). In this state, as the separate property of the husband has always been liable for debts he contracted before marriage, so the separate property of the wife has always been liable for debts she so contracted. Roundtree v. Thomas, 32 Tex. 286; Tarlton v. Weir, 1 White & W. Civ. Cas. Ct. App. § 142; Muse v. Burns, 3 Willson, Civ. Cas. Ct. App. § 73. In Portis v. Parker, 22 Tex. 699, it was held that the community property also was liable for such debts of the husband; and in Taylor v. Murphy, 50 Tex. 291, and Dunlap v. Squires (Tex. Civ. App.) 186 S. W. 843, it was held that such property likewise was liable for such debts of the wife. And see Moody v. Smoot, 78 Tex. 119, 14 S. W. 285; Lee v. Henderson, 75 Tex. 190, 12 S. W. 981; and Evans v. Breneman (Tex. Civ. App.) 46 S. W. 80.

It is apparent from what has been said that the conclusion reached by us that the question should be answered in the affirmative is correct, unless the rule established by the decision in Taylor v. Murphy and cases cited following same has been changed by statutes since enacted. It was claimed (and it seems the trial court thought) the rule was so changed by parts of the Revised Statutes of 1925 as follows:

"Art. 4621. — The community property of the husband and wife shall not be liable for debts or damages resulting from contracts of the wife except for necessaries furnished herself and children, unless the husband joins in the execution of the contract."

"Art. 4623. — Neither the separate property of the husband nor the community property other than the personal earnings of the wife, and the income, rents and revenues from her separate property, shall be subject to the payment of debts contracted by the wife, except those contracted for necessaries furnished her or her children. The wife shall never be the joint maker of a note or a surety on any bond or obligation of another without the joinder of her husband with her in making such contract."

If the suit had been for a liability...