Rhodes v. Gibbs

Walker, J. The mortgage of the wife of her separate estate, which might be good in equity, might not be [440] good under our statute ; she could pledge her property for the payment of her husband’s debts; she could give it to him, or she could appoint it to his use. But courts of equity would nevertheless exercise the strictest scrutiny over all such acts of the wife, holding them void if there was any appearance of fraud, coercion or undue influence to bring them about. But under our statute a mode is prescribed for the conveyance of her property, and unless this be followed, the wife can only bind her separate property for necessaries furnished to herself and children, and expenses upon her separate property. (See Hollis and Wife v. Francois & Border, 5 Texas, 195.) The petition in this case was demurable, and the court erred in overruling the exceptions to it; secondly, in rendering judgment against the appellant on the note, and in foreclosing the mortgage as to her separate property. In the case of Cartwright against Hollis, 5 Texas, 152, quoted by the appellees, the- question was as to the power of the wife to bind herself and her separate property by the execution of a promissory note. Her power to mortgage her separate estate for the payment of a pre-existing debt of the husband was non coram judice. The case of Trimble v. Miller, 24 Texas, 214; Covington v. Burleson, 28 Texas, 368; Menard v. Sydnor, 29 Texas, 257; as well as Lynch v. Elkes, 21 Texas, 229, are authorities in point against the doctrine of Hollis and Wife against Francois & Border, as claimed and understood by counsel for appellees. The case of Brown v. Ector, 19 Texas, 346, is also an authority against the ruling of the District Court in this case. Perhaps we can more clearly state the rule by reference to the case of Hutchinson and Wife, 27 Texas, 255, than otherwise. It is there laid down “that the wife cannot charge her separate property for the payment of an account made, or a promissory note jointly executed with [441] her husband, for necessaries purchased for her husband, or for other members of the family than, herself and children.” The judgment of the District Court is reversed and the -cause remanded. March 13, 1871. Reversed and remanded. E. B. Pickett, for appellees on motion for rehearing.— 'The only question involved in this case is whether a married woman can mortgage her separate estate for the payment of her husband’s debts. This question has long ■since been settled. (Shelby v. Burtis, 18 Texas, 644-9; Hollis v. Francois, 5 Texas, 195; Sampson & Keene v. Williamson, 6 Texas, 102.) The authorities cited in the opinion do not touch the question. This court must overrule the above authorities to sustain the opinion. Ho other brief for appellees has come to the hands of the Reporters.