Reports of cases argued and decided in the Supreme Court of the State of Texas during a part of December term, 1849, at Austin and a part of Galveston Term, 1851. Volume 5. Page: 78
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155-156 SUPREME COURT.
Cartwright v. Hollis.
lief as against the defendants touching the matters complained of, and they
answered that they did not undertake in the manner and form as set forth in
the petition. The demurrer was sustained and the petition dismissed.
Ardrey and Payne, for appellant.
[155] IHEMPHILL, Ch. J. The appellant ill is brief states that the question
presented by the record or the one intended to be settled by the appeal is
"wlhetlher a manried woman can contract by the execution of a promissory note
jointly with her husband, so as to make her separate property liable to the creditor
by a procee(ling in rein for that purpose, the husband having no community
or separate property from which the debt can be enforced." The question
is one of considerable importance, and has been elucidated in a logical and
elaborate argument of the counsel in support of the affirmative of the position.
In the investigation I shall not, at least at any length, advert to the powers
or disabilities of the wife under the Spanish system of jurisprudence in relation
to lher separate property. The argument has proceeded on the supposition
that the powers and consequent liabilities of the wife in tle case under
consideration are to be determined by the rules of tle common law as modified
by the principles of equity and the statutory provisions on thle subject of marital
rights, At commLon law the husband and wife are identified and treated as
one person. The legal existence of tile wife as a distinct person is suspended
or incorporated inl tlat of her husband, under whose protection and cover she
performs everything. By tle marriage all her rights to personal property vest
in 1idm tab-olttely. atndl a, freehold estate in her realty continuing during their
joint lives, and by possibility during his life, should he survive; and the wife
is incapable of contracting o acting :r as a.feme sole, andl of suing or being sued
as such. (I Bl. Commn., 4431; 2 Story Eq., see. 1367; 8 T. R., 547; Roper on
HIusband tand Wife, 2 vol., 119.) The husband could not grant anything to the
wife or enter into covenant w ith hler, for thl:at would admit her distinct separate
existece; nor coalld she bind him by any contract or incur any debt
without his co:'sellt, with certain exceptions, in which there was a legal implicatio:
of Iher aluthority to act as s is gcent andl of his liability to pay for necessariies.
(2 Roper, 111.)
[1l56] Ba;t i:5 equity the wife's individuality was acknowledged, and her
capacity to 1iolid a separate estate with the incidental power of control, manlagemenet,
and(l dlisplosal recognized(; b)tt in relation to the extent of ier power,
or rather tli(e nllmo: of its exercise, tlere las been a considerable diversity of
opinion. The (decisions of the Engllish courts on the subject were for al long
tille waver;:g- a1nd. unlsett led; biut it seems nowv to be established law that a wife
\\wo Ias an al) sol lte interest in or powvet over her separate estate can dispose
of it ill anty manner cpl)able of transferring it; that her power of disposition is
inci(leltal to tlhe (stt se l holds in the property, and slhe can dispose of it in
tile sam;le rmainter and(l to the same extent as a feme sole. (2 Story Eq., sec.
1399; 2 Roper, 177-198.)
I shall not attemiptt to travel through tle numerous authorities in which the
power o(f fences covert to charge or dispose of estates limited to their separate
use has bleen (liscnlsed(. Thley have doubtless been flequently canvassed, antI
were critically andl elaborately reviewed by Chancellor Kent, il the MIethodist
Episcopal (111rcli v. Jacques, (3 Johns. Ch. R., 78,) and by Chancellor Dessaussure
il Ewviig v. Smnith. (3 Dess. R., 477.) In tlie former case the Chancellor,
after :a most laborious examination of tle cases for nearly a century,
was of opinion that the decisions wemre so floating and contradictory ias to leave
him at liberty to adopt tlhe true principle, viz, tlht aifeme covert \was not, as to
her separate property, to be deemed a fene sole, but ollly a.feme sole sub modo,
or to tle extent of t lie power clearly given by the deed of settlement. Tiat
instead of the wife having :an absolute power of disposition, unless specially
restrained by the instrument creating her estate, the converse of the proposition
would be more correct, viz, that sile has no power except what is specially
78
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Texas. Supreme Court. Reports of cases argued and decided in the Supreme Court of the State of Texas during a part of December term, 1849, at Austin and a part of Galveston Term, 1851. Volume 5., book, 1883; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28569/m1/86/: accessed May 7, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .