Hutchinson v. Underwood

• Decision Date: 01 January 1863
• Citation: Hutchinson v. Underwood, 27 Tex. 255 (Tex. 1863)
• Parties: C. Y. HUTCHINSON AND WIFE v. A. UNDERWOOD.
• Court: Texas Supreme Court

27 Tex. 255

C. Y. HUTCHINSON AND WIFE

v.A. UNDERWOOD.

Supreme Court of Texas.

1863.

The separate property of the wife cannot be charged on an account made, or on a note executed by her jointly with her husband, for necessaries purchased for her husband, or for other members of her family than herself and children.

NOTE.--Menard v. Sydnor, 29 Tex., 257;Covingtons v. Burleson, 28 Tex., 368;Rhodes v. Gibbs, 39 Tex. 432. The wife's separate estate cannot be made liable for improvements thereon not authorized by her. (Warren v. Smith, 44 Tex., 245.) When the husband has no separate estate, and there is no community property, and the wife rents a house for the use of herself and family, such rent is a charge upon her separate estate if the sum be reasonable in amount. (Harris v. Williams, 44 Tex., 124.) When a judgment is rendered on a debt of the wife, it may direct the execution to be levied on the community property, or on her separate property, at the option of the plaintiff. (Grant v. Whittlesey, 42 Tex., 320.)

The case of Magee v. White, 23 Tex., 180, cited and approved.

ERROR from Gonzales. Tried below before the Hon. Fielding Jones.

This suit was brought by A. Underwood, the defendant in error, against C. Y. Hutchinson and Virginia A. Hutchinson, his wife, the plaintiffs in error, on a note executed by them jointly.

The petition alleged that the consideration of the note sued on was necessaries furnished Virginia A. Hutchinson at her request, for herself and children, and for the benefit of her separate property; that C. Y. Hutchinson her husband, was insolvent, and there was no community property; and prayed for execution against the separate property of the wife. The wife pleaded general denial, and denied that the note was given for necessaries furnished as alleged. On the trial, evidence was introduced tending to prove the allegations in the petition of plaintiff. The charge of the court and verdict of the jury are stated in the opinion of the court. Judgment was rendered subjecting the separate property of the wife to the satisfaction of the same. The motion for new trial was overruled, and the defendants prosecuted their writ of error.Stewart, for plaintiffs in error.

Harwood & Tevis, for defendant in error.

MOORE, J.

In this case the jury were instructed by the court, if they “believed that the consideration of the note sued on was articles suitable for the necessary for the family, and children, and the separate property...