Hemmingway v. Mathews

10 Tex. 207

• Court: Texas Supreme Court
• Decided: July 1, 1853
• Status: Published

Opinion

Hemphill, Ch. J.

The ruling, we are of opinion, was erroneous. The note being made to one of the partners, during matrimony, was presumptively community property, and as such was, under ordinary circumstances, at the disposal of the husband alone. But, whether it be community or the separate property of the wife, it'could not be lawfully alienated by hex-, unless under the forms provided by law, or with the implied or express assent of the husband, or, under the special circumstances which would authorize her to employ her own or the community property for the benefit and preservation of her separate property, or for the support of herself and her children, or under circumstances which would authorize her separate action. The husband is the active partner in the matrimony. It is his duty to provide for the wants and' sustain the charges of the marriage partnei-ship,.aud his power to do this would be seriously impaired, if the wife could, as a general rule, without his assent, dispose of the community effects; and especially where the amount is so large; as that embraced in this note.

It is ordered, adjudged, and decreed, that the judgment be reversed, and that the cause be remanded, with leave to the plaintiff to amend his pleadings.

Beverscd and remanded.

Note 36. — Wills v. Cockrum, 13 T., 127.