Shelby v. Perrin , 18 Tex. 515 ( 1857 )

Hemphill, Ch. J.

This was a suit by Rhoda W. Perrin against John O. Shelby and Rebecca S. Shelby, his wife, on a note for one hundred and eight dollars, executed by the said Shelby and his wife. The wife was not a necessary party to the suit, unless the lots, for the purchase money of which the note was given, were the separate property of the wife; and if the amount of the note was the whole purchase money, it could not have become her property, unless the debt was discharged out of her separate funds. But the wife having been joined in the suit, and judgment having gone against both wife and husband, it is very manifest that she ought, as a party, to have been served with process of citation. The service of the citation, issued to her, upon her husband, is insufficient; and, for this defect of service, the judgment must be reversed.

If the note be for a community debt, the wife should not have been made a party to the suit: and if joined, and it appear, in the course of the proceeding, that the debt is a charge against the community, there should be a discontinuance as to the wife.

It may be said that no injury could arise to the wife onthis judgment, as it requires the vendor's lien on the lots to be foreclosed, and the balance, if any, to be satisfied first out of the community property. But the wife can insist on her right to be exempt from a judgment to which, in contemplation of law, she is not a party, though possibly she may suffer no injury from such judgment. But she is not secure against all risk, even under this judgment; as the balance is required to be made first out of the common property, leaving the inference that if not so satisfied, the execution may be levied on the private property of either or both.

As" the case will be remanded, it may be proper to remark, that if there be a valid mortgage on the lot, for the purchase money, as appears to be, possibly, the case, the plaintiff should plead this by proper averments, and pray for its foreclosure ; as the implied lien of the vendor, which was set up in the petition, and upon which judgment of sale was rendered, cannot be held to exist where the vendees have given to the vendor a mortgage of the lots for the purchase money ; provided this mortgage be valid and binding in law. This point has been made in the assignments of error, but if the judgment had not been reversed on other grounds, it would not have been noticed, as the mortgage was not pleaded ; nor is there a statement of facts to show that such mortgage was in evidence. A copy of the instrument is in the transcript; and as the question was raised by appellants, it was deemed proper not to pass the matter without some observation. Judgment reversed and cause remanded.

Reversed and remanded.