Rhodes v. Gibbs

• Citation: 39 Tex. 432
• Court: Supreme Court of Texas
• Decision Date: 01 January 1873
• Parties: E. A. RHODES v. T. & S. GIBBS.

39 Tex. 432

E. A. RHODES

v.T. & S. GIBBS.

Supreme Court of Texas.

1873.

1. The wife cannot charge her separate property for the payment of an account made on a promissory note executed jointly with her husband for any purpose except for necessaries for herself and her family, or for benefit of her separate property.

2. (On rehearing.) The wife, by mortgage or deed of trust executed by herself and husband, and duly acknowledged under the statute, can incumber her separate property for debts of her husband incurred prior to the execution of such mortgage or trust deed.

3. A married woman cannot by simple contract, even in writing, alone or jointly with her husband, incumber her separate property except for necessaries for herself, her family, or separate property.

4. A married woman, by deed of herself and husband, duly acknowledged, can convey her separate property to any use whatever.

APPEAL from Walker. Tried below before the Hon. J. R. Burnett.

This is a suit by Gibbs & Gibbs on the note of J. F. Rhodes and wife to them, dated sixteenth of October, 1866, due the first day of January, 1869, and to foreclose a mortgage given by Rhodes and wife on the day after the date of the note on certain lands of the community, but mostly of the separate property of the wife, to secure the payment of the debt, and another debt of the husband therein named, to which the wife was not a party.

The petition set up the death of the husband afterwards; that the wife had qualified as survivor of the community, and prayed judgment against her in her individual and representative character, and for decree of foreclosure. It admitted that appellant was the wife of her co-maker, J. F. Rhodes, at the time the note and mortgage were made, and that most of the lands embraced in the mortgage were of her separate property, owned by her prior to her marriage.

Baker & Maxey, for appellant. 1. Upon the first assignment it is suggested, that the petition showing that the note was the joint note of husband and wife, it was necessary further to allege that the debt was contracted by the wife for necessaries furnished herself and children, or by her authority, or for the benefit of her separate property; otherwise, it presented no cause of action as against her, and a judgment by default will be reversed. Trimble v. Miller, 24 Tex. 214;Covington v. Burleson, 28 Tex. 368;Menard v. Sydnor, 29 Tex. 257;Lynch v. Elkes, 21 Tex. 229.

The statement of facts shows that the debt sued on was contracted and incurred by the husband before the note was given. A past consideration, wholly executed before a promise is made, is not sufficient to sustain a promise unless the consideration arose at the instance of the promissor. Craig v. Atwood, 1 Stew. & P. (Ala.) 83. In Jackson's Administrator v. Jackson et al. 7 Ala. 791, a note had been executed by the debtor and delivered to the creditor, who afterwards requested the debtor to add a surety to it. This was done by the latter, and it was held that as there was no new consideration, as between the original parties, and none as between the payee and the surety, the liability of the latter could not be enforced.

The husband being liable for the debt, the mortgage as to him was good to bind the community property conveyed by it; and for this purpose, and to this extent, the suit might be well sustained against the wife, as survivor of the community, and the mortgage foreclosed upon the common property. But if her signature to a note with her husband presents no cause of action against her, without averments and proof that the debt was contracted by her, or her authority, or for the benefit of her separate property, as held in Trimble v. Miller, and Hutchinson v. Underwood, 27 Tex. 255; or if it was obtained for a debt of her husband for which she was not liable, and without a new consideration (which should be averred and proven), then the note being void as to her, there was no consideration to sustain the mortgage as to her separate property. The mortgage is a mere security for the payment of the debt, and if the debt is barred by limitation the creditor has no remedy on the mortgage. Duty v. Graham, 12 Tex. 427;Ross v. Mitchell, 28 Tex. 150;Perkins v. Sterne, 23 Tex. 561. So, if the note and petition do not show a cause of action against the wife; or if, upon the facts, the note is without consideration as to her, then, there being no liability against her on the note, the creditor has no remedy as against her on the mortgage.

2. The facts show that the wife mortgaged her separate statutory estate, owned by her prior to her marriage, and including all she had, to secure the payment of the pre-existing debt of the husband. This the court below held she might do, upon the authority of Hollis and Wife v. Francois & Border, 5 Tex. 195, and other cases approving the doctrine in that case; and that her act was irrevocable, except for fraud in its execution. Now, with profound respect for this court, and for those cases as authority upon the points necessarily adjudicated by them, and with due veneration for the high character of the court that decided them, whose learning and ability as jurists we admire and appreciate the counsel for appellant respectfully asks this court to review those cases for the purpose of ascertaining if the principles there announced are consistent with subsequent adjudications of this court, and with the spirit and intent of our statutory law, and if they should be held now as authority upon this point. Cartwright v. Hollis, 5 Tex. 152; Hollis and Wife v. Francois & Border, 5 Tex. 185; Magee v. White, 23 Tex. 182;Sampson & Keene v. Williamson, 6 Tex. 102;Shelby v. Burtis, 18 Tex. 644.

It is, therefore, most respectfully submitted that the question of the wife's power to mortgage irrevocably her statutory estate, as a security for the payment of the pre-existing debt of the husband, has never been adjudicated by this court upon a point directly and necessarily presenting it, so as to be regarded as res judicata.

But, if it should be thought that the question was decided in Francois & Border's case, upon such a state of facts as not to leave it an open one, then it is suggested that the conclusions of the court in that case were arrived at by analogy to the English equity authorities; first, in holding the wife's signature to a note prima facie evidence to charge her separate estate (5 Tex. 161, 198); and secondly, to the powers of femes covert, under the same authorities, to affect or charge by mortgage their separate equitable estates. 5 Tex. 199, and authorities there cited.

But we cannot regard this as the proper source from which to derive the rules by which to measure the powers and disabilities of married women over their statutory estates in Texas now.

By the civil law the wife could not become surety for the husband, but the statutory estate is created and defined by our own law; the object of the law is to secure it to the wife and protect her in the enjoyment of it. The law (Pas. Dig. arts. 4643, 4644) prescribes both the rule and the limit of her power to charge it; she can neither charge nor incumber it in any other manner, or to any greater extent than therein prescribed. Magee v. White, 23 Tex. 182. Her right to alienate it is given by the statute, and is not incident to her ownership of the fee; and the mode of alienation is prescribed. Her power to charge it, as well as the mode and extent to which she may charge it, being prescribed by positive law, and the right as well as the mode of alienation being also thus created and prescribed, excludes all other modes of charging, incumbrancing and conveying, and limits her powers over her estate to the language and object of the law.

Expressio unius est exclusio alterius is a maxim which Mr. Broom says was never more applicable than when applied to the construction of a statute. A mortgage is only a security for a debt; the debt is the consideration that feeds and sustains it; and therefore a mortgage is not a conveyance of the estate within the meaning and intent of the law, but it is a charge upon the estate mortgaged; and if it is true that she can charge it only in the manner and to the extent prescribed by positive law, then this manner of charging it is not included unless upon such averment and proof as would charge her upon her promissory note. But it is argued that the greater includes the less; and therefore, if the wife, in the mode prescribed by law, can alienate the fee, she may, under the same sanction, pass a less interest or incumber her estate.

In the case of Sampson & Keene v. Williamson, 6 Tex. 123, Justice Lipscomb, in his dissenting opinion, shows very clearly that this principle or maxim does not apply to this case. He says, “If the maxim is examined it will be found to have obtained its currency by its application to a different class of cases, growing for the most part out of wills and testaments.”

For instance, if a will contain a power to sell for a particular purpose, and in the execution of the trust it be ascertained that the fund can be raised, and the purpose accomplished by mortgage, whereby the estate directed to be sold may be saved, ultimately, to the heir or legatee, then the interest of the latter requires this to be done, and a court of chancery will compel it for this purpose. Here the power to sell includes the power to mortgage, because there are two objects to be accomplished, if practicable; and we apprehend that the true application of the maxim will be found only in this sense and for the reason assigned. But in the case being considered, the wife is under no direction or compulsion to sell, and hence under none to mortgage.

Again, the language of the statute is, “Where a husband and wife have signed and sealed any deed, or other writing purporting to be a conveyance of any estate,” etc. What are we to understand by the word conveyance? The common law was then...