Red River Nat. Bank v. Ferguson

• Decision Date: 02 December 1918
• Docket Number: (No. 3042.)
• Citation: 206 S.W. 923
• Parties: RED RIVER NAT. BANK v. FERGUSON et al.
• Court: Texas Supreme Court

206 S.W. 923

RED RIVER NAT. BANK v. FERGUSON et al.

(No. 3042.)

Supreme Court of Texas.

December 2, 1918.

Concurring Opinion, December 4, 1918.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Suit by the Red River National Bank against J. E. Ferguson and wife and the sureties on their note. Judgment for plaintiff against J. E. Ferguson and the sureties, and that plaintiff take nothing against defendant Bessie E. Ferguson, wife, was affirmed by the Court of Civil Appeals (192 S. W. 1088), and plaintiff brings error. Affirmed.

J. R. Kennedy, of Clarksville, and Mahaffey, Keeney & Dalby, of Texarkana, for plaintiff in error.

Burdette, Conner & Daley, of Paris, for defendants in error.

PHILLIPS, C. J.

It was sought in the trial court to charge Bessie E. Ferguson, the wife of J. E. Ferguson, as a signer upon a note given by her husband as principal, and others as his sureties. Her coverture was duly pleaded, and it was found by the court that the note was not given for necessaries for herself or children or for the benefit of her separate estate. This made her relation to the transaction simply that of a surety for her husband. Under the law of the State as it existed prior to the passage of what is known as the Married Woman's Act of 1913 (Acts 33d Leg. c. 32 [Vernon's Sayles' Ann. Civ. St. 1914, arts. 4621, 4622, 4624]), she was clearly not liable. If she is liable at all, it is in virtue of that act, the transaction having occurred after its adoption. The effect of that act is, therefore, the question in the case.

The caption of the act is a very broad one. It indicates a law of marked variance from that heretofore prevailing in the State in respect to the wife's contracts, as well as in other particulars. It announces broadly, following a declaration as to the amendment of Articles 4621, 4622, and 4624 of the Revised Statutes, that one of its purposes is to confer upon the wife "the power to make contracts," apparently without limitation. If such a law had been actually enacted, there could be no question of the power of the wife to make a contract of the kind here presented, or of any other kind, — contracts not only for her husband, but with her husband, notwithstanding their possible disadvantageous nature and consequent depletion of her separate estate as their result.

There is, however, a wide discrepancy between the caption and the act as finally passed. This, in a large measure, is explained by the history of the act as revealed in the legislative journals hereafter adverted to.

In the first place, it is stated in the caption that one of the purposes of the act is to repeal Article 4625, which prescribes the procedure and form of judgment in suits upon alleged contracts of the wife for necessaries or for the benefit of her separate estate. But in the act, as passed, that article is nowhere mentioned.

Furthermore, although the caption announces that the wife is to be clothed with apparently unfettered authority to contract, Article 4624 is so amended by the act itself as to leave her wholly without express statutory power to contract for the benefit or preservation of her separate estate, — a salutary and necessary power, and one with which she had been invested since the act of March 13, 1848, a period of sixty-five years.

The amendment of Article 4621 under the act introduces a distinct change in the law in respect to the control and management of the wife's separate estate. Whereas under the former law its sole management was given to the husband, such management, together with its sole control and disposition is by the act given to the wife, with the proviso that the husband's joinder shall be necessary to a conveyance or encumbrance of her real estate and transfer of her stocks and bonds; with the authority given her, in the event of his refusal, to resort to the District Court for a hearing as to whether such a transaction is to her interest, and in the case of a favorable judgment to execute such conveyance, encumbrance or transfer alone. It provides that the homestead, whether the separate property of either the husband or wife, or the community property of both, shall not be disposed of except by their joint conveyance. It contains this significant provision:

"Neither the separate property of the wife, *** nor the interest on bonds and notes belonging to her, nor dividends on stocks owned by her, nor her personal earnings shall be subject to the payment of debts contracted by the husband."

It is thus declared, not only that the wife's separate property shall not be liable for the husband's debts, but in addition, that certain classes of community property shall be entitled to the same exemption.

By Article 4622 as amended under the act, the wife's personal earnings, the rents from her real estate, the interest on bonds and notes and the dividends on stocks owned by her, heretofore as community property subject to the husband's management, control and disposition, are given to her sole management and control, and she is invested solely with the power of their disposition, subject to the provisions of amended Article 4621.

While it had been held that the husband was without power to dispose of the wife's personal property, even her choses in action (Kempner v. Comer, 73 Tex. 200, 11 S. W. 194) — his authority over her separate estate being restricted by the former statute to its sole "management," his right under that authority to draw from a bank money there deposited in the wife's name, has been recognized (Coleman v. National Bank, 94 Tex. 605, 63 S. W. 867, 86 Am. St. Rep. 871), though in the particular case the deposit was made by him upon an understanding with the bank that he should have that right. Upon the subject of bank deposits, amended Article 4622 declares that any money on deposit in a bank, whether in the name of the husband or the wife, shall be presumed to be the separate property of the one in whose name it stands, regardless of who made the deposit; and unless notified to the contrary the bank shall be governed accordingly in honoring checks against the account.

Article 4624 as amended reads as follows:

"Neither the separate property of the husband nor the community property other than the personal earnings of the wife, and the income, rents and revenues from her separate property shall be subject to the payments of debts contracted by the wife, except those contracted for necessaries furnished her or her children; provided, the wife shall never be the joint maker of a note or a surety on any bond or obligation of another without the joinder of her husband with her in making such contract."

The remainder of the act consists of the emergency clause, the ground for which is declared to be "the injustice to a large number of citizens resulting from the denial to married women, under the present law, of the right to manage their separate property and to make contracts."

In any effort to fairly arrive at the meaning of this act, it is to be borne in mind that the steady, unbroken policy of the laws of Texas has been to protect the property of the wife from the debts of the husband. Magee v. White, 23 Tex. 180; Kellett v. Trice, 95 Tex. 160, 66 S. W. 51. While less liberal than the laws of a number of the States in respect to the management of her property, those laws have been subject to no reproach in their care for its preservation. From the beginning of the State's history, when, in rejection of the rigid doctrines of the common law, the wife was endowed with the capacity to own a separate estate, they have afforded her property a constant shield against the improvidence of the husband. This protection of her property from liability for the husband's debts has been an outstanding feature of our system of marital property rights. It has served the great purpose which lay at the foundation of that system. It has placed the wife's property beyond the influence, the importunity, or even the necessity of the husband, and has secured to her an actual separate estate, in keeping with the spirit of the broad policy in which her right of ownership had its origin. If her powers have been restricted, her property, at least, has been safeguarded. The limitations upon her authority are but the expression of a scrupulous concern for the preservation of her estate, and were imposed to that end. In that interest her authority to contract debts at all was confined to those essentially to her advantage, that is, for necessaries for herself or her children and the benefit of her estate, with a court, in all suits against her for such debts, charged with the duty of seeing that they were actually incurred for those purposes and were reasonable and proper.

In this act, which it is asserted had for its purpose the repudiation of this established policy and the destruction of all limitation upon the wife's freedom to charge her estate by simple contract with liability for the husband's debts, this influence of our former laws still survives. It is found in the emphatic declaration of amended Article 4621, already noted, that —

"Neither the separate property of the wife *** shall be subject to the payment of debts contracted by the husband."

The Legislature had full authority to change the law. It was within its province to overturn this established policy and through the wife's simple contracts charge her estate with the husband's debts. But in the execution of such a purpose it is to be assumed that the radical change to be effected by the proposed law would constrain it to the use of language so plain and certain as to stand in no need of construction. The Legislature would not be expected to rest such a law only in the deductions to be drawn from a caption or the inferences of an emergency clause. It is not to be presumed that its expression would be found in doubtful phrase. Nor is it to be supposed that it would be left to the mere implication of a...