Christmas v. Smith

• Decision Date: 01 January 1853
• Citation: 10 Tex. 123
• Parties: CHRISTMAS v. SMITH.
• Court: Texas Supreme Court

10 Tex. 123

CHRISTMAS

v.SMITH.

Supreme Court of Texas.

1853.

See this case for some general observations respecting the 4th and 5th sections of the act of 1848, (Hart. Dig., arts. 2423, 2424,) defining marital rights.

In order to hold the separate property of the wife liable under the statute for necessaries for herself and children, the debt should be contracted by the wife personally; and if it be made by her agent, her assent must appear; and if the authority arise only by implication, the circumstances must be clear and strong, upon which such authority is to be presumed; and the debt so contracted must also be reasonable and proper.

In order to hold the separate property of the wife liable under the statute for necessaries, it is not sufficient to prove that they were purchased by the wife and were necessaries for the family; the husband is a member of the family, but a necessary for him is not one which under the statute would involve the wife's property in responsibility.

But it seems that, independent of the statute, the wife's separate property may be held responsible for necessaries purchased by her or by her authority, for the family generally, where the husband has no property and there is no common property. But this rule is subject to modifications, &c. (Note 23.)

It seems that so much of the statute (Hart. Dig., art. 2424) as authorizes the creditor in certain cases to levy upon either the common property or the separate property of the wife at his discretion, is unconstitutional; or, at least, that it must be construed to mean that the levy may be made upon the separate property of the wife only where there is no common property.

Quere? Whether the hire of slaves, or the proceeds of the labor of slaves which are the separate property of the wife, belong to the community.

Error from Walker. This action was for the recovery of an account charged to be due from the defendants, Lydia O. Christmas and her husband James T. Christmas, for goods, wares, and merchandise previously sold by the plaintiffs, J. C. & R. Smith, to the said Lydia, at her special instance and request, being necessaries contracted for by the said Lydia, for the benefit of herself and her children, and her separate property. The cause of action was subsequently stated in a different shape, by alleging that the goods, wares, &c., were delivered to both defendants; and that they were necessaries furnished the defendants for the benefit of the said Lydia, her children, and separate property. The plaintiffs prayed for judgment, and that execution may be levied either upon the common property or the separate property of the said Lydia, at the discretion of the plaintiffs. In an amended petition it was averred that James T. Christmas, the husband, “is now, and has for the last five years been, insolvent, and unable to support his wife and children.”

The defendant James T. Christmas, being examined on interrogatories, admitted his purchase of the goods charged in the account, and that some of them went to the use of his wife and children; but denied that he acted as the agent of the wife in the purchase of the goods, or that he purchased any of them at her request, or that any of them went to the use of the separate property. Lydia, in her answers to interrogatories, stated that she could not say whether she received any of the goods sued for or not; that she was in the habit of receiving from her husband goods of the character of many of the articles charged in the account without inquiring of him where they came from.

Robert Smithers, a merchant of Huntsville, the residence of both parties, specified certain articles amounting to one hundred and sixty-one dollars and ninety-two cents to be such as he would consider necessaries in such families as the defendants'--but could not say they were actually necessaries in that family--and that the prices charged were reasonable and customary; that he had sold the defendants goods and received payment therefor; that James was considered solvent until it was ascertained that the negro property, consisting of two slaves, were the separate property of the defendant Lydia; that defendants lived on a plantation of plaintiffs, and that the said James made a good crop; that the said James had been regarded as insolvent for several years past, but was then employed at thirty dollars per month, which would be sufficient, judiciously and economically applied, for the support of the family. Gibbs, merchant, proved that he had a small account against James which was closed by note, signed by both defendants. Rogers, merchant, stated that he had sold goods to both defendants, the account for which was closed by taking their joint note; that James had been insolvent for four or five years past, but was then on a salary of thirty dollars per month. Mrs. Fielden and B. S. Wilson testify that they sold goods to defendants, one in 1849, and the other in 1850, which are yet unpaid for. From the books of original entries it appeared that all of the articles were purchased by the defendant James, or through his son and other members of the family, except the said Lydia; and that they were charged to the said James alone.

There was judgment against both defendants for one hundred and sixty-one dollars and ninety-two cents, and against Jas. T. Christmas for the sum of thirteen dollars and eighty cents; and that the execution on the judgment against both defendants might, at the discretion of the plaintiffs, be levied upon the common property or upon the separate property of the said Lydia O. Christmas; and that execution do issue against the said James for the sum of thirteen dollars and eighty cents. A motion for a new trial was overruled.

A. P. Wiley, for plaintiff in error.

HEMPHILL, CH. J.

It is manifest from the petition and from the argument in support of the judgment that the suit is brought upon, and the judgment is supposed to be sanctioned by, the 4th and 5th sections of the act of 1848, defining marital rights. (Arts. 2423, 2424.)

The 4th section declares 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 expenses that may have been incurred by the wife for the benefit of her separate property. And the 5th provides that, on the trial of suits authorized under the previous section, if it shall appear to the satisfaction of the...