Mills v. Frost Nat. Bank , 1919 Tex. App. LEXIS 143 ( 1919 )

MOURSUND, J.

The Frost National Bank sued Mrs. Mabel Mills on a joint and several promissory note for $9,179.33, executed by her and her husband, E. W. Mills, dated January 22,1917, payable one day after date, bearing 8 per cent, interest, and providing for attorney’s fee of 10 per cent. It was alleged by plaintiff that the note was given for money' borrowed by said Mabel Mills as and for her separate property and was used by her, and that her separate estate got the full benefit of said money. In subsequently filed pleadings plaintiff alleged that the note was the last of several notes renewing a debt evidenced originally by a note for $7,000, dated June 15, 1912, signed by Mabel Mills and her husband, the accrued interest being added in each note; that the money was borrowed by Mrs.' Mills for the use and benefit of her separate estate; that it was deposited to her credit and checked out by her; that it was understood that it belonged to her separate estate, and was to be used for the benefit of such estate, and was to be paid back out of such estate.

Mrs. Mills answered by general denial and special pleas to the effect that at the time each of said notes was executed she was the wife of E. W. Mills, who died prior to the filing of this suit, and that this was known to plaintiff; that the original loan was made to the community estate of herself and husband; that none of said money was used, nor was it represented that it would be used, for the benefit of her separate property; that neither the obligation sued on, nor the original note, was such an obligation as she was authorized and empowered to make as a married woman under the laws of this state.

The trial resulted in a judgment for plaintiff for $11,048.60, together with interest from date thereof at the rate of 10 per cent, per annum.

A married woman did not have the general power to make contracts either at the time Mrs. Mills borrowed the money or at the time she executed the note sued on. At the time she borrowed the money she was expressly authorized by article 4624 (R. S. 1911) to contract debts for the benefit of her separate property; but at the time she executed the note sued on the statute had been amended so as to omit such grant of power, and if such power existed at that time it derived its'existence by implication as an incident to her power of ownership. Red River National Bank v. Ferguson, 206 S. W. 923, opinion by Supreme Court, December 2,1918.

[1] The only inquiry necessary to be made in this ease is whether the original debt was contracted by Mrs. Mills for the benefit of her separate property, there being no contention that it was for necessaries for herself or children, if she had any children. It appears that Mrs. Mills, although a married woman, had been dealing in real estate on quite a large scale, independently of her husband, and was supposed to have been successful; that she borrowed the money for herself, and her husband joined in the note at the request of the appellee, but with the understanding that such act should not affect his line of credit with appellee; that “she said she had a transaction she was carrying on away from here then in which she needed the money, wanted the money for a short time only”; that she never did tell the president of appellee bank, with whom she negotiated for the loan, “specifically what she was going to do with the money”; the money, $7,000, was deposited to her credit, and she drew it out in two checks, one for $5,000, and one for $2,000. Mrs. Mills testified that she and her husband expected to speculate away from San Antonio with the money, and that it was part of $41,000 in cash of which she was robbed “out of Chicago.” Ap-pellee contends the court did pot give credence to this statement, and was authorized to find that her separate property got the benefit of the $7,000. There is no evidence from which the court could find that the money was to be used to improve, benefit, or preserve any property then owned by Mrs. Mills, or that in fact she made such use thereof, if that fact could have the least bearing on the question of liability. The evidence merely shows that she obtained $7,000 of appellee’s money. This is a suit on contract, and not one seeking to recover on the ground that the money was obtained'by means of fraud, and the burden rests on appellee to show that the contract was one a married woman was authorized by law to make. It has been held that money obtained on a joint note of the husband and wife, secured by mortgage of her separate property, if intended to be her separate property and to be repaid by her out of her separate means, is her separate property, at least as between herself and her husband. Sparks v. Taylor, 99 Tex. 411, 90 S. W. 485, 6 L. R. A. (N. S.) 381. And there is good authority to the effect that such result can be accomplished, even though the debt is not secured by a mortgage of her separate property. Speer’s Law of Marital Rights, §§ 321 and 371. It does not follow, however, that the contract by which she secured possession of the money would be one which she was authorized by law to make.

[2-4] The statute authorizing a married woman to bind herself by contract for expenses incurred for the benefit of her separate property conferred no authority to borrow money for investment purposes, any more than to make herself personally liable on contracts assuming the payment of purchase money due on property bought by her. Speer on Law of Marital Rights in Texas, §§ 157 and 172; Red River National Bank v. Ferguson, supra; Noel v. Clark, 25 Tex. Civ. App. 136, 60 S. W. 359; Billingsly v. Swenson Land Co., 58 Tex. Civ. App. 67, 123 S. W. 195; Blair v. Teel, 152 S. W. 878; Smith v. Wilson, 32 S. W. 434; Stroter v. Brackenridge, 51 Tex. Civ. App. 170, 118 S. W. 632, Id., 102 Tex. 386, 118 S. W. 634. If she had bought property from appellee, and given her note for $7,000 in payment thereof, she would not have rendered herself personally liable on such note, and she is not personally liable on a note for money borrowed merely because she got the money, nor would it make any difference had it been shown that she bought property with the money.

The judgment is reversed, and judgment rendered in favor of appellant.

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