Fermier v. Brannan

• Decision Date: 14 October 1899
• Citation: 53 S.W. 699
• Parties: FERMIER v. BRANNAN et al.
• Court: Texas Court of Appeals

53 S.W. 699

FERMIER v. BRANNAN et al.

Court of Civil Appeals of Texas.

October 14, 1899.

Appeal from district court, Galveston county; William H. Stewart, Judge.

Action by Victor E. Fermier against John D. Brannan and others. There was a judgment for defendants, and plaintiff appeals. Reversed.

Davidson, Minor & Hawkins, for appellant. John C. Walker, for appellees.

GILL, J.

This was an action by appellant, begun in the district court of Galveston county, against Amelia F. Brannan, John D. Brannan her husband, and E. A. Hawkins, trustee, upon a promissory note for the sum of $1,917.46, alleged to have been made by her alone on June 1, 1898, payable to appellant, on demand, at Galveston, Tex. The petition also alleged the execution by Amelia F. Brannan, alone, of a deed of trust upon lands situated in Kaufman and Bell counties, for the purpose of securing the payment of the note; the lands being the community property of Brannan and wife. E. A. Hawkins was named as trustee. The residence of all the defendants is averred to be in Galveston county, and service was actually had upon Brannan and wife in said county. It is further averred, substantially, that John D. Brannan in January, 1896, voluntarily deserted and abandoned his wife, Amelia, and continued to live separate and apart from her until some time subsequent to June 1, 1898, he being during much of said period in the state of North Dakota, while she was a resident of Galveston, Tex.; that during all of said period he failed and refused to support or provide in any manner for his wife, and that she was wholly without separate means of support; that during said period Mrs. Brannan became indebted to appellant, who is her brother, in a sum greater than the amount of the note sued on, said sum being advanced at the special request of Mrs. Brannan for her necessary maintenance and support, and for the successful defense of a suit brought by John D. Brannan in North Dakota for divorce (the various items going to make up the amount of the note being set out in an exhibit, and alleged to have been for necessaries); that the note and deed of trust were executed by Mrs. Brannan during the continuance of such abandonment, and same were given by her to secure the indebtedness so incurred. Petition prays for judgment for the debt against Mrs. Brannan, and foreclosure of the lien upon the land as against all defendants. Mrs. Brannan did not answer, and interlocutory judgment by default was rendered against her. Hawkins entered appearance, but John D. Brannan filed his plea of privilege to be sued in the county of his residence, alleging that at the date of the filing of the suit he did not reside in Galveston county, but had his domicile in Bell county; that he had not authorized any one to bind him to answer this suit in Galveston county, and particularly had not authorized Amelia F. Brannan to do so; and that he himself had not contracted in writing to be sued in said county. To this plea appellant excepted: (1) On the ground that it did not deny that Amelia F. Brannan resided in Galveston county, as alleged in the petition, and contained no allegation as to her residence. (2) It did not deny the alleged abandonment and desertion of Mrs. Brannan, nor that the note was executed for necessaries; nor does it negative the facts alleged which would authorize her to act alone in the execution of the instruments sued on, nor that she had been forced by the alleged abandonment to assume the powers and duties of a feme sole in the management of her affairs and the community property. (3) It did not negative every supposable state of case under which the suit might have been properly brought in Galveston county. (4) It does not deny that the district court of Galveston county has jurisdiction of his co-defendant Amelia F. Brannan. The court overruled the demurrers, and heard testimony only on the plea of privilege, and, the matter being submitted to a jury, the plea was sustained, and the cause dismissed for want of jurisdiction; the judgment by default against Mrs. Brannan being set aside, and the costs adjudged against appellant. Motion by appellant for new trial was overruled, and this appeal perfected, and the errors assigned present for the determination of this court the question as to the sufficiency of the plea of privilege.

That, under the circumstances alleged in the petition, the wife would have the right to conduct her own affairs, and manage and control the community property for her necessary support and maintenance, and that to this end she could by contract bind herself and the property, is no longer an open question. In the early case of Wright v. Hays, reported in 10 Tex. 130, Chief Justice Hemphill announces the doctrine, reviewing the reasons and authorities upon which the principle is based. In that case a gift by the wife to a child by a former husband was upheld, though the subject of the gift was a piece of community real estate. In disposing of the case the following language is used: "It appears, then, that the rights and duties of the husband and wife are reciprocal. If he be invested with high powers, as the head of the family, he is subject to corresponding duties. As the land in controversy may be taken as a portion of the community acquisitions, our attention will be directed to the rights and obligations of husband and wife in reference to such property. Their rights in such property are equivalent to each other; the difference being that during coverture her rights are passive, his are active. He has the free administration of such property and is subject to the corresponding duty of maintaining his wife and family, and defraying out of this property the debts contracted during marriage. So long as he discharges his duties as husband, his rights remain in full vigor. But when he abandons the administration of the common property, and deserts his wife and country; when he ceases the discharge of his duties, and contributes in no mode to the support of his wife and family, reducing the wife to the necessity of providing for herself and of taking care of the common property; and when this absence is prolonged for several years, — his rights over the effects of the common property cease, and the passive rights of the wife are quickened into vigorous activity. * * * Her powers in such event should correspond with the position which by the default of her husband she is compelled to assume. And especially should the controlling power of the husband over the goods of the community be transferred to the wife." It is further declared that in such case the wife is invested with the capacity of a feme sole, with the right to contract and to sue and be sued. The court says further, quoting from a Massachusetts case: "If such were not the case, the wife in such event could obtain no credit on account of her husband, for no process could reach him; and she could recover for no trespass either upon her person or property, or for the labor of her hands. She would thus be left a wretched dependent upon charity, or driven to the commission of crime to obtain a precarious support." Gregory v. Paul, 15 Mass. 30. This case has since been cited, and the doctrine approved, whenever the question has arisen in our courts, and it was held in the case of Forbes v. Moore, 32 Tex. 196, that the insanity of the husband clothed the wife with like power; but the application of the doctrine was subsequently limited to cases of abandonment, the statute having provided a remedy in cases of insanity of the husband. This case of...