United States v. Belt

• Decision Date: 12 January 1950
• Docket Number: Civ. No. 619.
• Citation: 88 F. Supp. 510
• Parties: UNITED STATES v. BELT.
• Court: U.S. District Court — Southern District of Texas

88 F. Supp. 510

UNITED STATES v. BELT.

Civ. No. 619.

United States District Court S. D. Texas, Brownsville Division.

January 12, 1950.

Brian S. Odem, United States Attorney, K. M. Nolen, Assistant United States Attorney, Houston, Texas, for plaintiff.

Faulk, Sharpe & Cunningham, Brownsville, Texas, for defendant.

ALLRED, District Judge.

Plaintiff sued defendant on three installment notes signed by defendant and her husband, now deceased. Defendant pleaded coverture. The Government has not replied to the plea of coverture, but the facts have been stipulated, in substance, as follows:

The three notes were given to local Building Materials or Lumber Companies in connection with insured "Modernization Loans" under the provisions of Title 1 of The National Housing Act, 50 U.S.C.A.Appendix, § 1881 et seq. The notes were transferred by the original payees, before maturity, to Universal C I T Corporation of New York. Plaintiff had insured Universal against loss in the event of non-payment. Default having been made, plaintiff paid Universal and acquired the notes.

The proceeds of the first note were "used for the purpose of building a garage" at the homestead residence of defendant and her husband; the second "for the purpose of painting the bath-room and installing electric fixtures at the same homestead;" and the third "for the purpose of remodeling, painting and papering" such homestead.

The last note was given August 7, 1947; and William O. Belt, defendant's husband, died July 8, 1948. The notes total $1,112.98 and are each credited with various payments, totaling $370.36.

"At all times material to the transactions hereinabove mentioned, the Defendant, Mrs. Leona Mae Belt, was a married woman."

These written stipulations constitute all the evidence. There is no showing as to whether there was an administration upon the estate of William O. Belt, or as to the existence of separate or community property of the deceased.

The Government contends, on brief, that the facts stipulated show that the notes were given for "necessaries," and defendant is liable personally under the provisions of art. 4623, Vernon's Civil Stats. of Texas.

Under all the Texas statutes (and decisions) it has always been the rule that a married woman could not contract a debt, except for one of the specific purposes allowed by Statute, 23 Tex.Jur. 169, p. 199.

Art. 4623 of the Texas statutes 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 payment of debts contracted by the wife, except those contracted for necessaries furnished her or her children. 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. Id. Acts 1848, p. 77; G.L. vol. 3, p. 77." (Italics supplied.)

As construed by the Texas Courts, the wife may contract and be bound only: (1) where the debt is for "necessaries furnished her or her children"; (2) for the benefit of her separate property, or for a liability incident to the management, control and disposition of her separate property, 23 Tex.Jur. 171; Red River National Bank v. Ferguson, 109 Tex. 287, 206 S.W. 923; Daniel et ux. v. Sayle, Tex.Civ.App., 40 S.W.2d 1101.

The statute gives a married woman power to contract debts for "necessaries furnished her or her children." That authority is strictly construed and no appeal to the equitable powers of a Court can be made to bind the wife by her contracts not executed under the provisions of the statute, 18 Tex.Law Review, 91. The same rules, as to the necessity for the obligation to be given for necessaries, or for the benefit of the wife's separate estate, apply to promissory notes as to other contracts 23 Tex.Jur. 195, p. 227, and cases cited thereunder. Likewise, with reference to purchase money or renewal notes, signed with the husband, 23 Tex.Jur. 183, p. 218; 178 p. 214; Daniel v. Sayle, supra; Lamar Life Insurance Co. v. Jordan, Tex.Civ.App., 163 S.W.2d 215, writ of error refused by Supreme Court.

The fact that the wife's name is found on a note, jointly with her husband, does not raise a legal presumption that she is, either jointly or severally, liable on it, Harris v. Finberg, 46 Tex. 79; Fallin v. Williamson Cadillac Co., Tex.Civ.App., 40 S.W.2d 243. The burden rests on the plaintiff in a suit against a married woman, to prove that the contract was one a married woman was authorized by law to make, Mills v. Frost National Bank, Tex.Civ. App., 208 S.W. 698, error ref. by the Supreme Court; Womack v. First National Bank of Anson, Tex.Civ.App., 81 S.W.2d 99; the plaintiff must bring his cause strictly within the statutes, making the wife liable, and the burden is upon him to establish the particular facts creating the liability, since such facts cannot be presumed by reason of the fact that she did so contract, Keith v. Allen, Tex.Civ.App., 153 S.W.2d 636; Martin v. Hayes, Tex.Civ.App., 36 S. W.2d 796, writ of error ref. by Supreme Court.

The Texas Rule is so strict that, until the abolition of the general demurrer, the State Court cases held that a plaintiff must plead that a married woman's obligation was one which she was authorized by law to make, Womack v. First National Bank of Anson, supra, and authorities therein set out; 23 Tex.Jur. 294, p. 342; Hirshfield & Co. v. Evans, 127 Tex. 254, 93 S.W.2d 148; Wadkins v. Dillingham, Tex. Civ.App., 59 S.W.2d 1099; Witherspoon v. G. Heileman Brewing Co., Tex.Civ.App., 144 S.W.2d 1017; Service Parts Co. v. Bizzell, Tex.Civ.App., 120 S.W.2d 919; but these cases seem to be based upon the erroneous assumption that a debt contracted by a married woman, without statutory authority, is void, whereas it is merely voidable, Watters v. Laning, Tex.Civ.App., 99 S.W.2d 639, 641, error dis.; Guaranty State Bank v. Kuehler et al., Tex.Civ.App., 114 S.W.2d 622, error ref. by the Supreme Court.

"Just what is meant by the expression `Necessaries' is not capable of exact definition. Like the terms `care,' `prudence,' `diligence,' and the like, its application in a given case depends upon the circumstances. The term is used to designate such things as are suited to the wife's and children's condition and station in life, their needs and wants, insofar as the ability of the parties will permit. There can be no precise rule applicable to all cases alike, further than the general rule of reasonableness. What would be a necessary for one family might not be such for another, and still a luxury for a third. It is not to be determined by actual suffering, want or need — as upon an emergency — but rather upon a consideration of all these circumstances surrounding the particular transaction, including the ability of the husband and the wife to supply the articles and their reasonable appropriateness under the circumstances.

"The purchase or erection of a home, the rent of a dwelling house, the purchase of a piano and furniture for a rooming house, an automobile for the use of the family, suitable food, clothing and such things as enable the wife and children to live decently and in the manner fitting their condition and estate, physicians' services, dental work and the like are, or may be, necessaries. So, also, the services of an attorney to represent the wife in a divorce suit, or services on behalf of a child or its tuition, may be such.

"But purchases merely to aid the wife in carrying on a business of her own, or tuition for a child brought into the family without the husband's consent, or commissions to a broker for an exchange of the wife's separate property, or expenses for improving or developing the wife's separate property — as drilling an oil-well — `are not such necessaries.' 23 Jur. 170, pp. 200, 201, 202."

Cases are cited in the text under each of the foregoing statements from Texas Jurisprudence. Some of them have been cited by the Government and will be discussed.

It will be noted that the general statement is made in the foregoing quotation from Texas Jurisprudence, among other things, that the "purchase or erection of a home * * * are, or may be, necessaries." The case cited under the purchase proposition is Bexar Building & Loan Ass'n v. Heady, 21 Tex.Civ.App. 154, 50 S.W. 1079, 1081, error ref. In that case the Court does say that "a dwelling place is, of course, necessary for any family", but holds, under the facts there involved, that the particular purchase there involved did not come within the term "necessaries furnished her or her children", under the statute.

The case cited in the text on the "erection" of a home is Howell v. McMurry Lumber Co., 62 Tex.Civ.App. 584, 132 S.W. 848, 849, error ref., a suit against both husband and wife upon a written contract for materials necessary to erect a dwelling upon a lot constituting the homestead. The Court says:

"* * * We agree with the Court of Civil Appeals for the Fourth District in Bexar Bldg. & Loan Ass'n v. Heady, 21 Tex.Civ.App. 154, 50 S.W. 1079, that conditions might exist which would require a court to hold the acquisition of a dwelling to have been necessary for the wife and children; but here, as there, the facts do not present such a case. Nothing here appears beyond the mere fact that the husband, with the wife's consent, given in manner prescribed by the Constitution, contracted for the erection of a building upon their homestead, but whether without this the wife would have been without a sheltering roof the record does not disclose. The selection of the homestead ordinarily devolves upon the husband, and the record here presents no reason for a holding that the particular place upon which defendants in error were adjudged a lien was necessary as a home for the wife.

"We therefore conclude that the court erred in rendering personal judgment against the wife,...