Shaw v. Finney

WILLSON, O. J. (after stating tbe facts as above). The question for determination presented by this appeal may be stated as follows : Has tbe 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 tbe capital stock of an insolvent state bank? Tbe trial court’s conclusion that the question should be answered in tbe negative was based (it is assumed) on parts, as follows, of the Revised Statutes of 1925:. “Art. 4621. ⅜ ⅜ * 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.” , Tbe contention of tbe banking commissioner, was and is that the trial court’s conclusion was unwarranted because, be asserts, tbe liability of tbe 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 tbe conclusion of the trial court was -incorrect. Tbe statute, it will be noted, declared that tbe community property (with tbe exception stated) should not be liable for debts resulting from contracts of the wife.. Unquestionably, we think, the liability of tbe wife, when fixed by tbe 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 the contract whereby the wife became the owner of the stoclc, for if that contract bad not been made tbe liability tbe 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). Tbe judgment is affirmed.