Harrison v. Bentley's

Roberts, J. The question in this case is, whether or not the husband, after separation by divorce, is liable for supplies and necessaries furnished the family—the family consisting of himself, his wife, her children and her negroes, residing on and cultivating her farm,—which debt was contracted by him during the marriage, and the articles were alleged to be furnished oh the faith and credit of her said property, and that the husband was not the owner of any property in his own right ? We think he is liable. By the law he is given the sole management of the wife’s separate property. (Hart. Dig., Art. 2421.) He is entitled to an interest in all the profits of her property, except the “increase of her lands and slaves,” as community property. (Art. 2421.) Of this community property he has the entire control in payment of community debts. (Art. 2422.) Hence he should be liable for them, notwithstanding they may have been contracted mainly for the benefit of the wife’s estate, and that of herself and children. It is true that there- may be circumstances under which equity would decree that the wife’s estate would be liable for debts contracted by him for its benefit; but it does not follow from this that he is not liable. It is unnecessary to examine minutely into the sufficiency of the amended petition, setting up a breach of trust in the husband in’ not paying over money entrusted to him by the wife for the payment of this debt, as the original petition contains sufficient to render him liable to the action. The amendment, it is presumed, is intended as a replication to. the husband's [455] special plea, stating facts tending to show that the wife’s estate was equitably liable for the debt. In that point of view, •both plea and replication are immaterial and useless. It was not error to discontinue the suit as to the wife. It may be that it could not have been maintained against her. But even if they were jointly liable, be was also severally liable, and therefore under the decisions of this Court the suit might be discontinued against her without affecting it as ■against Mm. (Austin & Clapp v. Jordan, 5 Tex. R. 180; Horton et al. v. Wheeler, 17 Tex. R. 52.) We think that the petition contains a good cause of action against the defendant below as administrator. Judgment reversed and cause remanded. Reversed and. remanded.