Robert R. Haynes v. C. G. Stovall and Wife, 23 Tex. 625

Bell, J. This suit cannot be maintained to subject the separate property of the wife, even upon the authority of the cases of Christmas v. Smith, 10 Texas Rep. 128 ; Brown v. Ector, 19 Id. 346; and McFaddin v. Crumpler, 20 Id. 374. In these cases it was said, that the separate property of the wife might be made liable in equity, independent of the provisions of the statute of March 13th, 1848, on the subject of marital rights, for necessaries furnished to the family; and it was said, that the husband was to be considered as a part of the family, as would also the children of a former marriage, if there were any.

But in the cases referred to, the court said, that to make the separate property of the wife liable, upon the principles of equity, independent of the statute, it was necessary for the plaintiff to show, by appropriate averments and proof, the condition of the wife’s estate, so that the court could be informed what decree it was proper to render, under the circumstances of the particular case. It was said, that the court would not make a decree ordering the sale of the corpus of the wife’s property, if the debt could be satisfied out of the issues and profits.

Tested by the rules laid down in the above-named cases, the petition in the present case is insufficient to maintain the suit against the wife. It is not sufficient to maintain the suit, upon the 4th and 5th sections of the Act of 1848, because it does not allege that the debt was contracted by the wife, or by her authority, for necessaries furnished herself or her children, or for expenses incurred by her, for the benefit of her separate property. The petition is not sufficient, under the rule laid down in the cases of Christmas v. Smith, Brown v. Ector, and McFaddin v.

Crumpler; because the petition alleges nothing about the condition of the wife’s estate, or the amount of her separate property, or the value of the issues and profits thereof, so as to inform the court what decree it would be proper to render in the case. The demurrer was therefore properly sustained, so far as the plaintiff sought to charge the separate estate of the wife. But the petition showed a good cause of action against the husband, C. G.

Stovall, and the demurrer ought to have been overruled as to him; for, upon the facts alleged in the petition, the plaintiff was entitled to judgment against the husband. To this extent, therefore, the judgment of the court below must be reversed, and the cause remanded for further proceedings against the husband, C. G. Stovall. It is proper to say, that a case was decided at the late term at Galveston, (Magee v. White, supra, 180,) in which it was held, that the wife’s separate property is not liable, upon any principles of equity, independent of the statute, for necessaries for the husband.

It was held, that the wife’s separate estate could only be held liable, according to the provisions of the statute, for debts contracted by the wife herself, or by her authority, for necessaries furnished herself or children, or for expenses incurred by the wife for the benefit of her separate property, and where such debts or expenses were reasonable and proper.

It was held, that the wife was under no legal obligation to maintain the husband out of her separate estate; that the rules applied by courts of chancery in England, to estates limited to the sole and separate use of married women, were not applicable to the wife’s statutory separate estate in this state; and that the expressions to be found in the opinions of this court, in the cases of Christmas v. Smith, Brown v. Ector, and McFaddin v.

Crumpler, to the effect that the wife’s separate estate is liable in equity, independent of the statute, for necessaries for the husband, or for his children of a former marriage, were dicta, and were not to be 1 egarded as authoritative decisions of this court. In the decision of the case referred to, Magee v. White, the present Chief Justice did not concur. Reversed and remanded.