M. J. Hall v. John B. Hall, 52 Tex. 294

Bonner, Associate Justice. The first and second errors assigned in this case present the question of the power of the husband to make to the wife a valid and binding promissory note, in consideration of money, her separate property, loaned to him. It is not contended that such an instrument would be binding at common law. Under our system, however, the legal existence of the wife is not so merged in that of the husband as to destroy her separate property rights.

Besides the privileges she enjoyed under the modification of the civil law which came to us through Mexico prior to the admission of Texas into the Union, we had, in our first State Constitution, an express provision that “ all property, both real and personal, of the wife, owned or claimed by her before marriage, and that acquired afterwards by gift, devise, or descent, shall be her separate property; and laws shall be passed more clearly defining the rights of the wife, in relation as well to her separate property as that held in common with the husband.” (Const. 1845, art.'7, sec. 19.) That she could own property in her own right, both separate and common or community with the husband, has become the settled policy of this State, as shown by similar provisions in all her subsequent Constitutions and by statute. (Paschal’s Dig., arts. 1003, 4641, 4642; Rev.

Stats., art. 2851.) It has been repeatedly held by this court that the wife’s separate property, so long as it can be traced, remains such, whatever changes it may undergo; that the husband may make a gift or grant of the community or of his separate property direct to the wife without the intervention of a trustee; and that if property be purchased with community funds and the deed taken in the name of the wife, the presumption that the property remains community may be rebutted by proof of the intention of the husband to thereby make it her separate property. (Rose v. Houston, 11 Tex., 326 ; Fitts v.

Fitts, 14 Tex., 448; Story v. Marshall, 24 Tex., 305 ; Smith v. Boquet, 27 Tex., 507; Higgins v. Johnson’s Heirs, 20 Tex., 389.) In Price v. Cole, 35 Tex., 461, this court has virtually decided the precise question, that a note and mortgage given by the husband to the wife are valid and binding instruments.

Our statute gives the husband the right to control the separate property of the wife. (Paschal’s Dig., art. 4641.) Under a statute giving the wife separate property rights substantially as ours, except that she could “ release to her husband the right to control her property,” it was decided that a promissory note given by the husband to the wife, for borrowed money, was valid. (Webster v. Webster, 58 Me., 139; Webster v. Webster, 4 Amer. R., 253.) We are of the opinion that the note here sued upon, given by M. J. Hall, senior, to his wife, Julia B.

Hall, in consideration of her separate money loaned to him, is a valid and hinding contract,_ and that it was such a declaration of his intention that the principal and interest, both which are expressly promised to be paid by the terms of the note, should remain her separate property, that it should have this effect. Whether such an instrument would be a debt contracted by the husband for the benefit of the community, or for his own separate benefit, would depend upon the facts of the particular case. In either event, both the community and the separate estate of the husband would be liable for its payment.

In this case, the court below ordered execution to run against both estates. Mrs. Hall does not complain of the judgment, and it does not become necessary for us to decide whether, upon the facts presented in the record, she could demand that it should have been a charge first upon his separate estate. We think there was no error in the judgment of the court overruling the demurrers of the defendant to the pleadings of the plaintiff'.

The third error assigned is, that the court erred in sustaining the special exceptions of plaintiff to the answers of the defendant. a We think that the several exceptions taken because of want of certainty in the allegations of the defendant, were properly sustained, unless, perhaps, as to that count in the answer which is accompanied by schedules of property of the estate alleged to have been taken and converted by her. These, however, seem to consist principally of articles to which she would have been entitled as exempt property.

The answer, as a whole, is an effort fo offset the certain liquidated demand of the plaintiff, with the value of the property, separate and community, of the estate of M. J. Hall, senior, alleged to have been illegally taken and converted by her. If, in this suit, the plaintiff" could be held liable for such damage, (Paschal’s Dig., art. 3447,) we think it should only be with reference to an adjustment of the respective rights and equities of the parties growing out of the final settlement of the estate. [Opinion delivered December 11, 1879.] The answers of the defendant did not properly present these issues.

Though the defendant was the executor of the estate, and though it was his duty to be fully advised of its condition, he presents no sufficient statement or exhibit of this condition showing whether the estate is solvent or insolvent, and whether plaintiff would not, upon final settlement, be entitled, over and above her demand sued upon, to the value of the property alleged to have been converted by her. The estate is shown to have been in value quite large, and the creditors and distributees are not made parties, so that the respective rights of all in interest could be adjusted.

We are of opinion that, under the case as made by the pleadings, there was no error in sustaining the special demurrers of the plaintiff. The fourth error assigned is, that the court erred in overruling the motion for a new trial. This motion seems not to be incorporated in the record, and hence we cannot advisedly pass upon the same. There being no apparent error in the judgment below, the same is affirmed. Affirmed.