Lynch v. Elkes

21 Tex. 229

• Court: Texas Supreme Court
• Decided: July 1, 1858
• Status: Published

Opinion

Hemphill, Cii. J.

We are of opinion that there was no" error in decreeing the sale of the land for the satisfaction of the vendor’s lien. The payment of the purchase money of the land was by two distinct notes, and the vendor's lien on each was equivalent to a mortgage, subject to forfeiture on the failure to pay the notes or either of them. There was error however in a point not suggested by appellants, and that is in rendering any judgment against the wife except for the foreclosure of the lion upon the land. There was no proof that the land purchased was to be her separate property, and, if there had been, Courts would not allow the whole, perhaps, of her separate estate to be sacrificed in attempts to make additional purchases without proof of benefit or advantage, and with the certainty in fact of detriment and loss. I shall not enter into the discussion of the liabilities of married women. It is manifest at a glance that if obligations of this character were enforced against the property generally of a feme covert, she might be suddenly reduced to penury and the shield of her disability be rendered wholly worthless if not converted into an instrument for her destruction.

Judgment to be rendered against the wife only to the extent of foreclosure of the lien upon the land.

Judgment reformed.