Magee v. White

• Citation: 23 Tex. 180
• Parties: MARTHA MAGEE v. HENRY K. WHITE.
• Decision Date: 01 January 1859
• Court: Supreme Court of Texas

23 Tex. 180

MARTHA MAGEE

v.HENRY K. WHITE.

Supreme Court of Texas.

1859.

The separate property of the wife cannot be charged with the debts of the husband, contracted for necessaries for himself, notwithstanding he may be insolvent. 5 Tex. 195;10 Tex. 123;11 Tex. 329;18 Tex. 644;19 Tex. 346;20 Tex. 374;27 Tex. 255;30 Tex. 145.

In order to charge the wife's separate estate with debts contracted for necessaries for herself and children, the contract must be made by the wife herself, or by her special authority.

The husband may be her agent to make contracts, that will bind her separate estate; but it is not to be presumed, that he is her agent, because he is her husband. The agency must be such, in fact, and not a thing to be presumed, because of the relation of husband and wife.

Under our system of laws, the liability of the wife's separate estate for necessaries, is regulated by the statute, and it cannot be subjected to liability for necessaries furnished to the husband, by an appeal to the equitable powers of the courts to administer the same remedies as are applicable in equity, to estates limited to the sole use of married women in the hands of trustees. If the like equitable estates were created here, we would undoubtedly look to the principles established by the chancery courts of England and of this country, in the management and control of them. 19 Tex. 346;27 Tex. 255.

The law imposes upon the husband, the obligation to support his wife and children. If he have separate property, and there be no common property, it cannot for a moment be pretended, that his separate property cannot be charged for necessaries for the support of his family. The law permits the wife to contract for necessaries for herself and children, and to incur expenses for the benefit of her seperate property; and her separate property is bound for such necessaries, and such expenses; but she is under no legal obligation to support the husband, nor can her separate estate be charged even for necessaries for him.

See the opinion in this case, for a review of the cases of Cartwright v. Hollis, 5 Tex. 152;Hollis and Wife v. Francois and Border, 5 Id. 195;Christmas v. Smith, 10 Id. 123;Milburn v. Walker and Wife, 11 Id. 329;Brown v. Ector and Wife, 19 Id. 346; and McFaddin v. Crumpler, 20 Id. 374; from which it appears, that the expressions, to be found in the opinions in those cases, that the wife's separate property might be made liable for necessaries, furnished to the husband, by an appeal to the equitable powers of the courts, are dicta, and not to be regarded as the authoritative decisions of the court on that point.

APPEAL from Grimes. Tried below before the Hon. Peter W. Gray. The facts are stated in the opinion.J. W. Hutcheson, for the appellant.

BELL, J.

This suit was instituted by Henry K. White against Felix W. Magee, and Martha Magee his wife, upon a promissory note executed by Felix W. Magee to one William C. Roe, and transferred by Roe to White. The petition charged that the note was executed in settlement of an account for goods, wares, and merchandise furnished and delivered by the said Roe to the defendants; that the goods, wares, etc., so furnished and delivered were for the use and benefit of the said Martha, her children and negroes, and that the said articles were necessary, and reasonable and proper supplies and expenses for a family in like circumstances. The petition contained an allegation, that Felix W. Magee, the husband, was insolvent, and unable to support his wife and family. There was an additional allegation, that the articles furnished by Roe were delivered “for the use of the said Martha and her family, and the proper management and care of her separate property, and to its prosperity.” A bill of particulars accompanied the petition. The proof was, that some of the articles were purchased by F. W. Magee, some by Mrs. Magee, some by the husband and wife together, and others by orders through a servant. The husband's insolvency was proved. Witnesses stated that the goods sold were such as were “usual and necessary for a family;” but the witnesses did not state that the articles were necessary for Mrs. Magee's family.

The judge charged the jury as follows: “If you believe from the evidence, that Magee was insolvent, and that his wife had separate property, and that the goods were bought by her, or by her husband with her authority or assent, at reasonable prices, and that they were such goods as were necessaries for the family, and reasonable and proper for them in their circumstances, or such as are usual and customary in family use, although some of them may have been proper for the husband alone, then you will find for the plaintiff, but otherwise for defendant.” The judge also charged the jury upon another point in the case, not necessary now to mention.

There was a verdict for the plaintiff. Judgment was rendered for the amount found by the verdict to be due, with eight per cent. interest, from the rendition of judgment. The decree ordered execution to be levied on the community property of Felix W. and Martha Magee, if any could be found, and in case there was no community property, then upon the separate property of Mrs. Martha Magee.

There was a motion for a new trial. One of the grounds of the motion was, that the court erred in the charge to the jury. The motion was overruled. Mrs. Magee prosecutes this appeal.

We are of opinion that there was error in the charge of the court, in so far as it assumed that the wife's separate property is liable for necessaries furnished to the husband. It has more than once been said, in the opinions of this court, that the wife's separate property might be made liable for necessaries furnished to the husband, by an appeal to the equitable powers of the courts. But we think this question has never been directly presented to the court for adjudication; and we do not, therefore, regard the expressions which are to be found in the opinions to which we have alluded, as the authoritative decisions of this court.

In the case of Cartwright v. Hollis, 5 Tex. 152, the only point before the court related to the ability of a married woman to bind herself and her separate property, by the execution of a promissory note. The question in the case related to the wife's capacity to contract in reference to her separate estate. The question, whether or not the marriage relation imposes upon the wife the obligation to maintain the husband, where she has property and he has none, was not distinctly presented to the mind of the court.

So, in the case of Hollis and Wife v. Francois and Border, 5 Tex. 195, the only question before the court was, whether or not the wife could bind herself and her separate estate, by the execution of a mortgage jointly with her husband, and under the solemnities required by law for the absolute conveyance of her separate property. And it is also to be remarked, that in this last mentioned case, the wife's property appears to have been held by a trustee, and the trustee became a party to the mortgage, by which the wife undertook to bind her separate estate.

The case of Christmas v. Smith, 10 Tex. 123, was the first case in which the proposition was distinctly announced, that independently of the statute regulating the marital rights of parties, the separate property of the wife could be subjected to the payment of debts, contracted by her, or her authority, for necessaries for the family generally, in cases where the husband has no property, and there is none in the community. And in that case, it was said, that the husband is a member of the family, but that a necessary for him is not one which, under the statute, would involve the wife's property in responsibility. The distinction was very clearly taken between family necessaries generally, and necessaries for the wife and her children. And the liability of the wife's property, for debts contracted for family necessaries, as distinguished from necessaries for herself and her children, was said to be independent of the statute regulating the marital rights of parties. I shall presently have occasion to recur to this case.

In the case of Milburn v. Walker and Wife, 11 Tex. 329, the elaborate opinion of the court was, for the most part, confined to the discussion of the powers of the husband to charge the separate property of the wife, by virtue of the authority which the law gives him, as its sole manager, during the marriage. The question of the liability of the wife's property for the debts of the husband, contracted for necessaries for him, was not presented to the court; for the petition alleged that the articles purchased were necessaries for the wife, her children, and negroes, and the case turned mainly upon the ruling of the court on the demurrer. I shall presently have occasion to allude more particularly to some expressions contained in the opinion of the court, in this case of Milburn v. Walker and Wife.

In 19 Tex. 346, is found the case of Brown and another v. Ector and Wife, in which the remarks that fell from the court, in the case of Christmas v. Smith, on the subject of the liability of the wife's property, in equity, for necessaries furnished to the husband, are reiterated, and the proposition announced in the case of Christmas v. Smith, is stated in somewhat broader terms. It was assumed in both these cases, that the suits were brought “exclusively upon the statute”--meaning the 4th and 5th sections of the act of March 13, 1848, which constitute articles 2423 and 2424 of Hart. Dig. In Brown v. Ector, it was said: “The statute does not provide relief in cases where the articles sold are family necessaries,but where they are necessaries for the wife, her children, or her separate property.” “But,” the chief justice proceeded to say, “the creditor is not without his remedy, provided it be sought in a mode known to the law. Independent of the statute, the separate...