Milburn v. Wife

• Decision Date: 01 January 1854
• Parties: MILBURN, USE, etc., v. WALKER AND WIFE.
• Court: Texas Supreme Court

11 Tex. 329

MILBURN, USE, etc.,

v.WALKER AND WIFE.

Supreme Court of Texas.

1854.

Where the defendants in error moved to dismiss on the ground that there was no indorsement on the transcript, of the day on which it was demanded and on which it was delivered, and nothing to show that it was demanded by or delivered to either party to the cause, the motion was overruled.

It is not necessary to draw legal inferences nor to state legal propositions, in the petition; it is sufficient to allege distinctly the facts which constitute the plaintiffs' cause of action.

Where the wile had separate property, negroes, and there was no common property, and the husband was insolvent and unable to support his family, and the husband purchased goods, wares, and merchandise, which were necessary for the wife, children, and negroes, and afterwards, before the expiration of two years, gave his note for the same, reciting that it was given for the goods, wares, and merchandise furnished his “wife, family, and negroes;” Held, That the separate property of the wife was liable for the payment of the debt; and that too, notwithstanding that more than two years had elapsed from the date of the account, or delivery of the articles before the commencement of the suit.

The law confers on the husband the right of managing the wife's separate property, during the marriage; the purchase of supplies, in behalf of such property, and the incurring of expenses incident to its proper care, management, and preservation, are acts legitimately within the scope of his powers, and appertain to the duties of his trust; and the liquidation of demands for necessaries, by notes of hand, on the usual terms, and for legal rates of interest, in cases where this becomes necessary or is advantageous to the estate, is an act within the purview of his rightful powers, and raises a just charge against the property; and where the husband, who has no separate property--and there is none belonging to the community--being entrusted, by law, with the management of the separate estate of the wife, and in the receipt of its rents, issues, and profits, proceeds to purchase necessaries for his wife and family, such purchase is made with direct reference to reimbursement out of the separate property of the wife; that forms the only fund from which the family can be supported; the husband is the legal manager of that fund, and it must be liable for his contracts, whether they be verbal or written, when made in the judicious management of the property, and for articles necessary to the comfort and support of its legitimate beneficiaries. (Note 54.)

The wife is a necessary party to a suit to subject her separate property to a claim for necessaries.

The powers of the husband, as conferred in this State, by law, over the separate property of the wife, are similar, in some respects, to those vested in the husband, under the rules of equity jurisprudence, when permitted and authorized by his wife, to receive the rents, issues, and profits of estates limited to her sole and separate use.

The liability of the wife's separate property, for necessaries and expenses, under the 4th and 5th Sections of the Act of 1848, better defining the marital rights of persons (Hart. Dig., Art. 2423, 2424), is confined to cases where the necessaries are purchased or the expenses incurred by the wife in person, or by special or implied authority from her; it does not extend to cases in which the husband purchases the necessaries, and incurs the expenses, under the authority given to him by the statute to manage the wife's separate property; and therefore the creditor, in the latter class of cases, is not entitled to demand relief in the mode provided by the said 4th and 5th Sections, but may be compelled to accept relief in such form as will be least injurious to the wife's estate.

The Act respecting marital rights has no effect to limit the powers of the wife or give special authority to the husband, with reference to the debts and contracts contemplated by the 4th Section; the capacity of the wife to make such contracts, is presumed by the provision giving her authority; she is supposed to be capable of judging what articles are necessary for herself and children, and what expenses should be incurred for the benefit of her separate property; and for these she is authorized to make contracts. Yet it seems that it must appear to the satisfaction of the Court and jury, that the claim is for such necessaries or expenses, and that they were reasonable and proper in the particular case.

As this suit is not brought under the (4th Section of the) statute, the Court is under no obligation to render the judgment prescribed by the (5th Section of the) statute: charges against the separate estate of the wife should, as a general rule, be defrayed out of its rents, issues, and profits; and the corpus of the property should not be sacrificed, unless in a case of necessity; and, in all cases where the suit is not brought under the (4th Section of the) statute, and where it appears from the evidence that the husband is improvident, intemperate, or will probably misapply the proceeds of his wife's property, the necessary orders should be made to prevent this application, and to have the debt satisfied in the manner most advantageous to the separate estate.

Quere? Whether the Court intended to distinguish, in this case, between the liability of the separate property of the wife, under the 4th and 5th Sections of the statute, for necessaries for “wife and children,” and its liability, under the general authority of the husband, for necessaries for the ““wife and family,” where the husband is insolvent, etc.

In a suit to charge the separate property of his wife for necessaries purchased and expenses incurred by the husband, under his general authority to manage the wife's separate property, it must be established by the evidence of competent and intelligent witnesses, and not by the character of the items alone, or the admissions of the husband, that the articles were necessary to the family, and for the benefit of the property, and reasonable and proper, with reference to the condition of the family and property.

The husband cannot, by virtue of his general authority to manage the wife's separate property, under any circumstances, revive, against that separate property, a claim which has been barred by the statute of limitations; nor can he, by virtue of that general authority, stipulate for more interest than eight per cent. per annum.

Where an insolvent husband of a wife who has a separate estate, purchases on credit necessaries for the wife and family, and afterwards gives his note for them, in a suit to charge the separate property of the wife, it must be proved, aliunde the note, if necessary to rely on the note to avoid the statute of limitations, that the note was actually given for the articles so previously purchased.

Error from Wharton. There was no indorsement on the transcript, that it was demanded by or delivered to either party; and for that cause the defendants in error moved to dismiss. The motion was overruled, without opinion in writing.

The plaintiffs, B. and W. Milburn (suing for R. and D. G. Mills), represent, that the defendants, Wm. L. Walker and Elizabeth, his wife, are indebted to them in the sum of three hundred and four dollars and forty-five cents, with interest thereon, at the rate of ten per cent. per annum, from the first day of January, 1852, for goods, wares, and merchandise, furnished for the use and benefit of the said Elizabeth, her family and negroes; a bill of the articles, with the date of the delivery of the respective items, being annexed as a part of the petition; that at the time when the said articles were furnished, the said Wm. L. Walker was, and is now wholly insolvent and unable to support his wife and family; and that the said Elizabeth has a large number of children, and is the owner of -- negroes; that the goods, etc., were necessaries for the said Elizabeth, her children and negroes; and that the said William acknowledged in writing the justice of petitioners' demand, and, for his wife, promised to pay the same; the writing being also annexed as a part of the petition. After some further allegations, the petitioners pray for citation and judgment against both defendants, and execution against the property of the said Elizabeth. The bill of particulars, referred to in the petition and annexed, is not commenced in the usual form of stating accounts, in which one party is represented as creditor and the other debtor, but with a statement of their being articles furnished in 1850, and payable 1st January, 1851. The whole account, for the years 1850 and 1851, amounts to something more than three hundred and sixty dollars, being at least sixty dollars more than the amount claimed in the petition; and the instrument by which it is alleged Wm. Walker acknowledged the justice of the demand, and, for his wife, promised payment of the same, is to the following effect, viz.:

“WHARTON, March 8th, 1852.

One day after date, I promise to pay to B. and W. Milburn, or order, the sum of three hundred and four dollars and forty-five cents, for goods, wares, and merchandise furnished my wife, family, and negroes, without defalcation, with interest thereon, at the rate of ten per cent. per annum, from the 1st of January, 1852.

+--------------------------+
                ¦(Signed),¦WM. L. WALKER.” ¦
                +--------------------------+
                

The petition was filed 16th of September, 1852.

The defendants demur and assign various causes of exception; one of which is, that the cause of action is barred by limitation. They also plead limitation specially, and a general denial of the allegations of the petition; and they also aver other facts which require no notice, as no proof was introduced, and no question was made in relation to them.

The only evidence adduced on the trial was the testimony...