Smotridge v. Lovell

Ogden, J. That the wife may be jointly sued with her husband, on a joint note or contract, when executed by them for the benefit of her separate property, has been too often decided by this court and too well settled to be now questioned. (Cartwright v. Hollis, 5 Texas, 152; Haynes v. Stovall, 23 Texas, 627; and George v. Stevens, 31 Texas, 673.) The petition in this case alleges that the contract sued on was executed by the husband» and wife for the purpose of procuring the erection of a house on the separate property of the wife, and that said house, when so erected, was to be for the exclusive benefit and improvement of the wife’s separate property. We think such a contract is sufficient to bind the separate estate of the wife, and that she was properly sued with her husband. (5 Texas, 152 ; Butler v. Robertson, 11 Texas, 143.) It was not necessary to have made the infant son of the wife a party to the suit; first, because he was no party to the contract; and second, because the suit was not prosecuted for the purpose, nor does the judgment in any way affect that son’s interest, if he has any, in the homestead, or any other property, as the judgment is against the husband and wife, and affects their property only. We are unable to discover the force of the objection to the judgment rendered, as raised by plaintiff in error’s second assignment. The husband and wife jointly promised to pay the60 amount specified, and under the pleadings and evidence in this case, we think the husband may very justly be held primarily liable for the f nlfillment of the contract. Under proper pleadings and evidence, the wife’s separate property might be made first liable; but we do not think the pleadings or evidence in this case require -or would authorize such a judgment. We have failed to discover any sufficient cause for ■disturbing the judgment of the lower court. It is therefore affirmed. Affirmed.