Kelly v. Robertson

Ogden, J. The controversy between the parties to this appeal commenced by the intervention of Kelly, Conyngham <& Co., in a suit which was brought by Tennessee Robertson, wife of Charles H. Davis, against her husband, for a separation of property'. The case was decided at the last term of this Court, and will be found reported in the 9th Ann. The present plaintiffs representing the intervenors in that suit, and seeking in this action to render the wife liable for the debt of eight thousand four hundred and thirty-five dollars forty-throe cents, for which they recovered judgment, on their intervention in the former suit against the husband alone. The community between Davis and his wife is still existing. The debt for which the plaintiffs have a judgment against Davis is a debt for which the community is liable, and the grounds of the present action against the wife, are : 1st. That although it was a debt contracted during the marriage and for which the husband as head and master of the community is liable, the wife is also liable for it personally, because it was contracted for- and enured to her separate benefit and advantages. 2d. That pending the suit brought by the wife for a separation of property she accepted the community of acquets and gains, and is therefore liable for one half of the debt. 3d. That the wife is indebted to the community in an amount exceeding the judgment the plaintiffs have obtained against her husband, and is liable to be gtirnishfeed ais a debtor of the community. [309] 4. That the creditors of the community have a right to demand that there should be a liquidation of the community, and that the wife should be compelled to bring the amount of her indebtedness into Court, in order that the same may be paid over to the creditors of the community, according to their respective rights and privileges. An exception was filed by Mrs. Davis, to the jurisdiction of the Court, on the ground that her legal domicil was in the Parish of Iberville where her husband had his domicil. The evidence shows that Mrs. Davis has always continued to reside on her plantation in the Parish of East Baton Rouge, where she resided at the time of her marriage, and where after marriage the matrimonial domicil was established. Her husband is made a party defendant with her in the same suit, and has submitted to the jurisdiction of the Court, and there appears to be no ground for the wife’s objecting to being sued at her actual domicil, which the husband recognizes in the same suit to be his own. The exception to the jurisdiction was properly overruled. The first ground of the plaintiff’s action, is that the debt was contracted for . and enured to the separate benefit and advantage of the wife. The right of the plaintiffs in this respect are reserved in the decree rendered by this Court on the intervention of the plaintiffs in the suits between Mrs. Davis and her husband. Mrs. Davis in her answer to interrogatories in this suit has admitted that two of the sums of money paid by Kelly, Gonyngliam & Go., on the orders of her husband were for debts due by her anterior to the.marriage, to-wit: $303 lor a note give by her to Haney, and $1000 for amount of a note due by her to Lauriea Talbot, the principal and interest of which when paid, it appears, amounted to $1076 67. The majority of the Court are of opinion that as these debts were paid by drafts of the husband on Kelly, Gonyngliam & Go,, which constituted charges against .the community, the plaintiffs have no claim therefor against the wife separately. My own opinion on this point differs from that of my brother Judges. The attempt to garnishee the wife and render her liable for an alleged indebtedness to the community, finds no support in any of the principles of our law, applicable to the rights and obligations of married persons, or to the nature and character of the conjugal partnership. It is sufficient to say that the object of our law which confers upon a creditor who has a judgment against his debtor, the right of resorting to the process of garnishment, was to enable the creditor to exercise for his own benefit all the rights of action which the defendant in execution could exercise against his debtors, but that it certainty was not intended the creditor should exercise any greater right than his debtor hitnself could. The husband who is the judgment debtor in this case, has no right of action against his wife, during the existence of the community, for any sums of money which he may have expended for her benefit, either from his own separate funds or from the funds of the community, anl his wife cannot therefore be garnisheed, by either the individual creditors of the husband or by the creditors of the community. It is equally clear that this suit cannot be maintained for an account of the community transactions, with a view to its liquidation, in order to establish an indebtedness on the part of the wife to the community, and thereby render her liable for the debt due to the plaintiffs by the community. Whether the community lb t'o be Viewed in the light of a legal entity or not, it is certain no suit [310] can bo brought either by or against this ideal being. The husband is its sole representative during its existence, and the law has given him no power to provoke its dissolution, except by an action for separation from bed and board or for a divorce. The wife is not bound for the debts of the community, of which her husband is the head and master while that community subsists, and when it is dissolved she has the right by renouncing, of exonerating herself from the payment of any of its debts. 'Whatever right one of the spouses may have to claim a recompense from the other for funds of the community employed for the separate benefit and advantage of such spouse, either in the payment of his or her debts, contracted anterior to the marriage, or in the increase and improvement of the hereditary property of such spouse, this right can only be exercised at the dissolution of the community. The community under our laws consists only of acquets and gains, made during the marriage. They are liable to seizure for the debts contracted by the husband during the marriage, and the plaintiffs have a right to seize under their judgment against Davis any objects belonging to the community in possession of the wife. The buildings and improvements which have been erected on the wife’s plantation during the marriage aie not objects belonging to the communit}', to the extent to which, at the period of the dissolution' of the community, it shall be determined the wife’s land is then enhanced in value by these improvements, the husband or his heirs, will be entitled to the award of one half of such increased value, but at present nothing is done by the wife on that account, and it may be that on the dissolution and final settlement of the community hereafter, the wife may be able to offset any such claims, by claims that she may have against the husband for a similar improvement of his own hereditary property during the marriage. It is therefore ordered and adjudged, that the judgment of the Court below be avoided and reversed, and that there be judgment in favor of the defendant Tennessee Robertson, with costs in both Courts.