Portis v. Parker

• Decision Date: 01 January 1859
• Parties: REBECCA PORTIS AND OTHERS v. JOHN PARKER.
• Court: Texas Supreme Court

22 Tex. 699

REBECCA PORTIS AND OTHERS

v.JOHN PARKER.

Supreme Court of Texas.

1859.

The fourth section of the act of the 20th of January, 1840, entitled “An act to adopt the common law of England,” etc., provided, that all property which the husband or wife might bring into the marriage, or acquire during the same (except such property as was specially enumerated, and as to which it was otherwise expressly provided in said act), should be the common property of the husband and wife. The estate which, upon a marriage under this law, becomes vested in the husband and wife, cannot be divested by any law subsequently enacted.

If the common property of a husband and wife, who were married while the act of the 20th of January, 1840, was in force, could not, under it, be subjected to execution for the payment of the debts of the husband, contracted before marriage, it unquestionably could be,under?? the provisions of the statute of the 13th of March, 1848, entitled “An act better defining the marital rights of parties,” although, by the provisions of the latter statute, the property thus levied upon would not have become community property, had the marriage taken place after its enactment.

ON APPLICATION FOR REHEARING.

The commentators upon the laws of Spain announce the proposition, that the common property of the husband and wife is chargeable with community debts, and the separate property of each with their respective separate debts; and no doubt, where there was both common and separate property, and common and separate debts, the community property would be chargeable with the community debts, and the separate estate with the separate debts. But the court are not satisfied that the community property was not liable, by the laws of Spain, for the separate debts of the husband, where he had no separate estate, inasmuch as they have not had an opportunity sufficiently to explore it to ascertain satisfactorily its provisions.

Though it was not deemed necessary to say so in the original opinion, community property of a husband and wife, married while the statute of the 20th of January, 1840, was in force, would, under that act, be liable to execution for the payment of the separate debts of the husband, contracted before the marriage.

It is a fallacy to say that, by the law of 1840, the husband and wife acquired such a vested interest in personal property, which became by the marriage common property, that it could not afterwards be subjected to their antecedent debts, to which it was before liable. This doctrine would convert marriage under this law, where the parties possessed only personal property, into an act of bankruptcy, or would lead to the conclusion, that the corpus of the property would not, after the marriage, be subject to the demands to which it had been previously liable, and that only the issues and profits of such property, could be reached by creditors before the marriage; both of which results would be in opposition to the intent and spirit of our law.

And if the creditors, prior to the marriage, could only look to the issues and profits of the corpus of the property taken into the marriage, it would perhaps follow, that subsequent creditors could not subject the corpus of the said property to their demands, as this might rob the antecedent creditors of the fund to which alone they could look for the payment of their debts.

If the common property was not liable, under the law of 1840, for the debts of the husband before marriage, it was not because of the wife's interest in it, but because the law did not permit it to be taken in execution; and the court have no doubt of the power of the legislature to subject property to execution that was before exempt.

An alias execution, issued after the lapse of one term of the court after the return term of the original execution, is voidable, but not void.

The claimant of property, levied upon by virtue of a voidable execution, is not entitled to assert its invalidity; but if the claimant could have attacked the execution, the question as to its invalidity was not properly made in the court below, merely by an agreement of the parties in the statement of facts, that “exceptions to the admissibility of any of the above facts are reserved to either party, but they are admitted to be true, if admissible.”

APPEAL from Austin. Tried below before the Hon. Joseph C. Megginson.

This suit was for the trial of the right of property in a wagon and stock of cattle, levied upon by virtue of an alias execution, issued from the district court of Austin county, on the 28th of January, 1851. As appeared from the recitals in this execution, an original execution issued on the judgment, on the 7th day of December, 1849, which was levied upon three negroes, who were claimed by appellant, as her separate property, and bond was given by her to try the right of property to said negroes.

The record did not show that any question as to the validity of the execution, by virtue of which the property was levied upon, was made in the court below; but in the last clause of the statement of facts, there was the following agreement by the parties, viz., “Exceptions to the admissibility of any of the above facts are reserved to either party, but they are admitted to be true if admissible.” The other facts are stated in the opinion.B. C. Franklin, and Holland, for appellants.

Jones, for appellee.

BELL, J.

This case involves the following facts. On the 23d day of October, 1849, the appellee, Parker, recovered a judgment, in the district court for Austin county, against David Y. Portis. The judgment was upon a promissory note, given in settlement of a former judgment, recovered by the appellee against David Y. Portis, in the state of Alabama, prior to the year 1840. Execution issued upon the judgment recovered in Austin county in 1849, and was levied on four hundred and fifty head of cattle (more or less) and a wagon.

The property levied on was claimed by Mrs. Rebecca Portis, the wife of David Y. Portis, as her separate property; and bond was given by Mrs. Portis, for the trial of the right of property, under the provisions of the statute. Mrs. Portis contended also, that if the property levied on was not her separate property, then it was community property of herself and her husband, and as such was not liable to the execution of Parker, the present appellee, inasmuch as the debt due by her husband to Parker, was contracted before her marriage with David Y. Portis. The evidence showed that David Y. Portis and Mrs. Rebecca Portis were married on the 28th day of December, 1843. The evidence showed, also, that the wagon levied on was the separate property of Mrs. Rebecca Portis, before her marriage; and that of the cattle levied on, a portion were the separate property of Mrs. Rebecca Portis before her marriage, and the remainder amounting to one hundred head, were the increase of the others after her marriage.

A jury was waived, and the cause submitted to the Honorable Joseph C. Megginson, presiding judge, who gave judgment that the whole of the property levied on was subject to the execution of Parker, the present appellee.

The 4th section of the act of the 20th of January, 1840, entitled “An act to adopt the common law of England, to repeal certain Mexican laws, and to regulate the marital rights of parties,” provided, “that all property which the husband or wife may bring into the marriage, except land and slaves and the wife's paraphernalia, and all the property acquired during the marriage, except such land or slaves, or their increase, as may be acquired by either party by gift, devise or descent, and except also the wife's paraphernalia acquired as aforesaid, and during the time aforesaid, shall be the common property of the husband and wife, and during the coverture, may be sold or otherwise disposed...