Shaw v. Finney , 1928 Tex. App. LEXIS 536 ( 1928 )

The question for determination presented by this appeal may be stated as follows: Has the banking commissioner a right to have community property of a husband and wife, not the personal earnings of the wife nor income, rents, and revenues from her separate property, subjected to the satisfaction of a judgment in his favor for the amount of a lawful assessment duly made by him against the wife as the owner of shares of the capital stock of an insolvent state bank?

The trial court's conclusion that the question should be answered in the negative was based (it is assumed) on parts, as follows, of the Revised Statutes of 1925:

"Art. 4621. * * * The community property of the husband and wife shall not be liable for debts or damages resulting from contracts of the wife except for necessaries furnished herself and children, unless the husband joins in the execution of the contract."

"Art. 4623. * * * 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 contention of the banking commissioner was and is that the trial court's conclusion was unwarranted because, he asserts, the liability of the wife was "a constitutional and statutory one." Whether it was that kind of a liability or not need not be determined, for if it was it would not follow that the conclusion of the trial court was incorrect. The statute, it will be noted, declared that the community property (with the exception stated) should not be liable for debts resulting from contracts of the wife. Unquestionably, we think, the liability of the wife, when fixed by the assessment the banking commissioner made, was a debt (Stringfellow v. Patterson [Tex. Civ. App.] 192 S.W. 555; 17 C.J. 1371); and unquestionably, we think further, the debt resulted from thecontract whereby the wife became the owner of the stock, for if that contract had not been made the liability the banking commissioner sought to enforce would not have existed (McDonald v. Thompson, 184 U.S. 71, 22 S. Ct. 297, 46 L. Ed. 437; Austin v. Strong [Tex.Com.App.] 1 S.W.[2d] 872).

The judgment is affirmed.