Carlisle v. Sommer

West, Associate Justice.— It appears from the statement of facts and the conclusions of the court that the appellant, who had obtained a judgment against Mrs. Randle’s husband, had been endeavoring for some time before the garnishment proceeding now under consideration was instituted to force the wife to pay her husband’s debt with her separate property or its proceeds. She had originally bargained the lands for which the $5,000 note of November 28, 1881, represented part of the purchase money, to [126] the appellee for $15,000 cash, and appellee was about to pay for it that sum in cash, when, by threats of suit and other acts of appellant, he was deterred from so doing, and would only pay $10,000 in cash, and give the note above referred to for the balance of the purchase money. In addition to this, Mrs. Randle, owing to the conduct of appellant, was forced by appellee to deposit the $5,000 note in question in a banking-house in Brenham until its maturity; subject to the condition that if the judgment here sought to be established by appellant and others against the land should in fact be established, they were to be paid off out of the moneys arising from the collection of this note. Shortly after the sale, on the 10th of January, 1882, in pursuance of his purpose to force, if possible, the wife out of her separate estate to pay her insolvent husband’s debts due him, appellant caused an execution to be levied on the same land just sold by Mrs. Randle to appellee, and by this action of his forced the wife to apply for a writ of injunction to restrain the sale. This suit, by some means, remained pending in court until March 29, 1883, sometime after the purchase money note above set out had become due, and after the interest, which but for this action of appellant would probably have been paid, amounted to the sum of about $800. At the last-named date the injunction suit was finally disposed of, and the wife’s funds, which had been so long withheld from her by this .action of appellant, were once more liberated. Ho sooner, however, was this judgment perpetuating the injunction entered, and in fact on the second day thereafter, than the appellant, still fertile in resources, instituted the garnishment process now under consideration, for the purpose of subjecting the interest on the wife’s note, that by his own conduct he had caused to accumulate, to the payment of his debt against the husband. The court below on several grounds held that, under the facts of this case, as disclosed by the evidence, the appellant could not subject the interest that had in this way accrued to the payment of the husband’s debts. In this respect we regard the judgment as correct. Any other conclusion would work injustice to the rights of the wife, which are quite as sacred in the eyes of the law as the claims of his creditors against her husband are. Speaking of an attempt to force the wife to pay her husband’s debt out of her separate estate, Judge Moore very pointedly says: “ Certainly no one could imagine a creditor could by any direct [127] process have the property of the wife hired to pay his debt or appropriated to his use in any manner to this end. Would not this in effect be done if he could wrongfully seize and hold the wife’s property?” Carr v. Tucker, 42 Tex., 338. These remarks are quite pertinent to the case in hand. The court did not err in disposing as it did of this branch of the case. There is nothing whatever in the views here expressed that is at all at variance with the case of Braden v. Gose, 57 Tex., 37. The writer is, however, of the opinion that the present case differs in several of its features from the case of Braden v. Gose. Neither the principal or interest of the note in that case were the proceeds of the sale of the wife’s separate property. Here both the principal and the interest of the note in question were especially agreed upon to be paid for land which was the separate property of the wife, the interest having been specially contracted for in the deed of conveyance, and agreed to be a lien upon the land as a part of the purchase money, and was, in fact, as much a part of the original purchase money as the principal of the note was. The superior right still remained, by the terms of the contract, with the vendor, until all the interest, as well as the principal, of the purchase money was paid. When this was done, and the terms of the sale in every respect fully complied with, and the principal and interest alike paid, then, as was held in the case of Braden v. Gose, cited supra, any future interest accruing from the loan of this purchase money would be community property and subject to attachment, garnishment'or execution, as the case might be. We are of the opinion, however, that the court committed an error in rendering, at the time and under the circumstances that it did, a judgment against the appellant for attorney’s fee, and in having the same taxed against him as part of the costs of the case. Appellee’s counsel in their brief offer on the part of the appellee to file a remittitur of this amount; if this is done in twenty days from this date the judgment will be affirmed, but for this error it must be done at the cost of appellee. The clerk will notify the counsel of appellee, in order that they may file the remittitur, should they desire to do so. Affirmed.1 [Opinion delivered February 15, 1884.] Footnotes [1] The remittitur was filed.