Austin v. Crim

^* Writ of error granted January 4, 1928. It appears in the record sent to this court that the parties agree that the only question presented "is (quoting) one of law as follows: Is the interest of the wife in the community property subject to the payment of her antenuptial debts, and should the judgment of the court direct that execution be levied upon her interest in community property?" We think the question should be answered in the affirmative.

The common-law rule that made the husband and not the wife liable for debts contracted by the latter before her marriage (30 C. J. 585) seems never to have been law in Texas (Howard v. North, 5 Tex. 290, 51 Am.Dec. 769; Nash v. George, 6 Tex. 234). In this state, as the separate property of the husband has always been liable for debts he contracted before marriage, so the separate property of the wife has always been liable for debts she so contracted. Roundtree v. Thomas, 32 Tex. 286; Tarlton v. Weir, 1 White W. Civ. Cas. Ct. App. § 142; Muse v. Burns, 3 Willson, Civ. Cas. Ct. App. § 73. In Portis v. Parker,22 Tex. 699, it was held that the community property also was liable for such debts of the husband; and in Taylor v. Murphy, 50 Tex. 291, and Dunlap v. Squires (Tex.Civ.App.) 186 S.W. 843, it was held that such property likewise was liable for such debts of the wife. And see Moody v. Smoot, 78 Tex. 119, 14 S.W. 285; Lee v. Henderson, 75 Tex. 190,12 S.W. 981; and Evans v. Breneman (Tex.Civ.App.) 46 S.W. 80.

It is apparent from what has been said that the conclusion reached by us that the question should be answered in the affirmative is correct, unless the rule established by the decision in Taylor v. Murphy and cases cited following same has been changed by statutes since enacted. It was claimed (and it seems the trial court thought) the rule was so changed by parts of the Revised Statutes of 1925 as follows:

"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 wife shall never be the joint maker of a note or a surety on any bond or obligation of another without the joinder of her husband with her in making such contract."

If the suit had been for a liability of Mrs. Crim created after and while she and J. T. Crim were married, it is plain the community property between them other than her personal earnings and the income, rents, and revenues from her separate property specified in article 4623, above, could not have been subjected to the satisfaction thereof; for, the liability not being for necessaries furnished her or her children, the inhibition in the statute would have applied. But did it apply, the liability not having been created while she was a wife, but when she was a single woman? We think not; for we think the statute should be construed as applicable only to debts contracted by a woman while she is a wife, and not to debts contracted by her when she was feme sole.

The statute in question is an amendment of the Act March 13, 1848 (Paschal's Digest, art. 4642), in force at the time Taylor v. Murphy and cases (except Dunlap v. Squires) referred to as following it were decided. It was declared in said act that community property should be "liable for the debts of the husband, and for the debts of the wife, contracted during the marriage for necessaries." That, in legal effect, was a declaration that community property should not be liable for the antenuptial debts of a wife. Mercein v. Burton, 17 Tex. 206. Yet it was held in Taylor v. Murphy that such property was liable for such debts. Assuming, as we should (Wright v. Tipton, 92 Tex. 168, 46 S.W. 629), that, when the Legislature amended the statute, it had the ruling in Taylor v. Murphy and cases following it in mind, we think it reasonable to conclude, if it intended the inhibition in the amendment to apply to antenuptial debts of a wife, it would have said so.

The judgment will be so reformed as to provide that community property of the marriage between Mrs. Crim and her husband, J. T. Crim, other than that specified therein shall also be subject to the payment thereof, and as so reformed it will be affirmed.