Opinion
No. 4040.
May 28, 1931.
Error from District Court, Cass County; Geo. W. Johnson, Judge.
Action by the Hope Fertilizer Company against Mrs. Ladonio-Dennis-Jones and others. Judgment for plaintiff, and defendants bring error.
Judgment reformed and, as reformed, affirmed.
The suit was brought by the appellee against Mrs. Ladonio-Dennis-Jones and her husband, E. E. Jones, and V. A. Long upon a promissory note secured by a chattel mortgage. It was alleged that the note was given by Mrs. Dennis-Jones alone for fertilizer bought by her from the plaintiff for use in the cultivation of the land belonging to her separate estate. V. A. Long was a surety on the note. Mrs. Jones specially pleaded that she was not personally liable on the note because she was a married woman and her husband had not signed it, and the debt was not for one of the specific purposes allowed by the statute. As V. A. Long was discharged from liability, it is unnecessary to make further statement as to him.
The note in suit was signed by Mrs. Dennis-Jones and was payable to the plaintiff, and provided for "reasonable attorney's fees." She executed a chattel mortgage upon certain personal property to secure the note. Mrs. Dennis-Jones was a married woman living with her husband, and her husband did not join in the signing of the note or the mortgage.
Mrs. Dennis-Jones owned in her separate right, as separate property acquired by will, a farm of above 500 acres of land. As much as 400 acres of the farm was annually planted in cotton. The rest of the land was planted in corn and other crops. Mrs. Dennis-Jones managed and controlled the farm and directed the cultivation and planting of the crops. She purchased considerable quantities of commercial fertilizer and used it to make the land fruitful and more abundant in production. The note in suit was given for the fertilizer purchased and used by Mrs. Dennis-Jones on her land in growing crops. The evidence in the case is without dispute.
The case was tried before the court without a jury and a personal judgment was entered against Mrs. Dennis-Jones on the note for $2,003.31, inclusive of attorney's fees. No judgment was rendered against E. E. Jones or V. A. Long. Foreclosure of the chattel mortgage was denied. The court made the following findings of fact:
"I find that the use of commercial fertilizer on land is not a benefit to the land as such, nor an enhancement of its value, but is beneficial and needed in the proper production of crops which are planted on the land during the year in which the fertilizer is used and no longer.
"I further find that the use of commercial fertilizer was necessary in the proper management and operation of Mrs. Dennis-Jones' land and was beneficial to the crops annually grown thereon.
"The note sued upon provides for reasonable attorney's fees but I find there was no proof offered on the trial as to what was a reasonable attorney's fee.
"Conclusions of Law."I conclude that Mrs. Dennis-Jones is liable for the value of the fertilizer used on her separate land, the power to contract for the fertilizer so used being incidental to her right as a married woman of exclusive management and control of her separate property.
"I conclude that as the mortgage on the personal property was not signed by the husband of Mrs. Dennis-Jones, it was void."
Bartlett Harvey, of Linden, for plaintiffs in error.
O'Neal Harper, of Linden, for defendant in error.
The point presented for decision is that of the liability of a married woman for indebtedness incurred by her for the commercial fertilizer used in the cultivation of her farm, the separate property of the wife, to make the land fruitful and more abundant in production. She planted and raised a crop on the land. The appellant contends that she, being a married woman, was without legal authority to incur the indebtedness for the fertilizer because such indebtedness was not for the benefit of her separate property, but rather for the benefit of the community estate, since the crop for the production of which the fertilizer was used was community property. Under the statute as existing prior to 1913 the right of the wife to contract debts, other than necessaries for herself and children, was limited to expenses "for the benefit of her separate property." Article 4624, Rev.St. 1911. She was not given the exclusive management and control of her separate property. Numerous decisions have been rendered by the courts of the state determining under the former statute what expenses can be and what expenses cannot be regarded as expenses "for the benefit of her separate estate." For instance, Teel v. Blair, 60 Tex. Civ. App. 254, 128 S.W. 478, 479; Stroter v. Brackenridge, 102 Tex. 386, 118 S.W. 634; Taylor v. Thomas (Tex.Civ.App.) 145 S.W. 1061; and many other cases. But since 1913, under article 4614, as amended by Acts of 1929, c. 32 (Vernon's Ann.Civ.St. art. 4614), of the present statute, considerable enlargement has been made of the power of a married woman over her separate property and to incur expenses in relation to the use and control of her separate property. She is not now, as before, limited to expenses "for the benefit of her separate property." As expressly provided in article 4614: "The wife shall have the sole management, control and disposition of her separate property, both real and personal." There is thus plainly shown the legislative intention to remove any restriction, as before existing, upon the incidental rights of ownership, and to allow the entirety of the powers of use and management without restriction to the wife in virtue of her absolute ownership of the property. The very essence of ownership is the incidental rights of use and management. So that a married woman may now generally contract as may be necessary for or about the "management and control" of her separate estate whether entirely "for the benefit" of the same or not. The simple test is: Was the contract necessary for her about the management and control of "her separate property"? The right to control and manage a farm and to cultivate the same would become valueless if the owner were denied the power to make binding contract for fertilizers to be used to make the land more abundant in production that income and profit should be derived from it. It is not controlling of the exercise of such authority that the income or profit should be classed legally as community property. It is believed that the decisions below interpret the article as conferring the general power upon the wife to contract as may be necessary about or for the control and management of her separate property whether entirely for the benefit of the same or not. Whitney Hardware Co. v. McMahan, 111 Tex. 242, 231 S.W. 694; Gohlman, Lester Co. v. Whittle, 114 Tex. 548, 273 S.W. 808; Cauble v. Beaver-Electra Ref. Co., 115 Tex. 1, 274 S.W. 120; Teague v. Burk (Tex.Civ.App.) 3 S.W.2d 461. In the above cases it is evident that the contracts were for the benefit of the community estate and not of the wife's separate property. The crops grown upon the wife's land and the product of oil wells are concededly community property. The appellant's attorneys conceded, as should be stated, the proposition that if the power of contract should be held by the court as allowable generally as incidental to management of separate property and not limited to expenses entirely "for the benefit of her separate estate," then legal liability in the case for the debt has been established.
It is believed that the trial court has correctly applied the law in holding appellant liable for the debt sued for.
The appellee by proper cross-assignment seeks to have the foreclosure of the chattel mortgage given to secure payment of the note. The judgment should allow the foreclosure. Fort Worth State Bank v. Irving (Tex.Civ.App.) 241 S.W. 277; Collins v. Austin (Tex.Civ.App.) 32 S.W.2d 912.
The complaint of appellant as to attorney's fees should be, as conceded, granted, as it seems the attorney's fees were inadvertently placed in the decree spread upon the minutes; the trial court expressly finding there was no proof authorizing a recovery.
The judgment is reformed so as to deny recovery of attorney's fees and to allow foreclosure of the chattel mortgage, and as reformed will be in all things affirmed.