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: 84
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167-168 SUPREME CO URT.
Cartwright v. Hollis.
voluntary. Its influence is salutary; lut it was intended to operate only on
alieiations in pais. Charges upon the estate, necessary for its improvement,
preservation, tc., are not within the mischief intended to be provided against
by tlhe statute. And if the necessity or propriety of such eilarges is scrutinized
before the property be rendered liable, as doubtless they should he. the estate
will be more efiectually shie(led under the protection of thle equitable powers
of tlhe court than they could be un(ler the ordeal of a voluntary but private
examination before tile public officer.
'Thie proceeds of tile separate property of the wife are added to and form a
portion of her separate property; or they belong to the husband by the gift of
the wife; or they are added to tlie common stock of gains. If they are th,, private
property of the husband or community property, they are liable for debts
contracted by him during tile marriage; and if they acLcue to the wife in her
separate right, they can undoubtedly be subjected in equity to tle payment of
necessary and( reasonable charges against the estate. It cannot be supposed
that the private property of one of the partners or the common stock cal be
appropriated to the support and improvement of the private property of the
other; and if there be no common property, and te h ub d b e usb insolvenft, thle
separate estate of the wife must bear its own charges.
It is not necessary in this case to define what shall be common or what separate
property, and whether the profits and improvements of the private property
of the partners become common property or not; for whether the rents
and profits be common or private property, they can be subjected by a proper
proceeding to contracts made for their benefit and use. That the proceeds of
tile separate property of the wife should be applied to her support and that of
her family, and that this is consequently subject to liabilities for that purpose,
is manifest from the 10th section of the act of 1840, [IG§] whicl declares that
should the husband fail or refuse to support his wife from the. proceeds of the
land or slaves she may have, or to educate Iler children as the fortune of the
wife would justify, she may in either case complain to the County Court, who,
upon satisfactory proof, slall decree that so much of such proceeds shall be
paid to the wife for the support of herself and the nurture and education of her
children as the court may deem necessary.
Ill this case it is averred that the husband has no separate property, and that
there is none belonging to the community.
Tle allegations are in some degree inconsistent, as it is first stated that the
supplies were purchased for the use of his plantation, &e. His wife's plantation
was evidently intellded, as it is afterwards averred that lie is insolvent or
has no separate property. Were this case controlled by the decisions of the
English and other courts which lold the power of disposition by a feme covert
to be incident to her right of separate property, the question of the liability of
the property would be easy of solution. The execution of the note would be
evidence of her intention to charge the estate; and this ascertained, its liability
would be unquestionable.
But the separate estate of the wife would be liable, on the facts presented in
this case, by the principles of those adjudications which restrict the power of
tile feme covert to incumber her separate estate to the particular mode prescribed
in the instrument by which such estate is created. In South Carolina,
where this doctrine has been maintained for half a century and perhaps
longer, it is held that they have modified the English rules so far only as to
disable the wife from charging by her own act merely the separate estate,
without an examination by thle court into the necessity and propriety of the
charge. "If she be under the necessity of supporting herself on the credit of
the separate estate, she may do so, as in England. But the court, before
making her estate liable, will look into the circumstances of the husband, and
be satisfied that the necessity existed, and that the [169] goods furnished
84
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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/m1/92/: accessed May 7, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .