Maxwell v. Jurney

¶1i„ Husband and Wife <&wkey;125 — Wife’s Separate Estate — Bent from “Separate Property.”

¶2Under Vernon’s Sayles’ Ann. Civ. St. Tex. 1914, art. 4621, providing that all property of the wife, both real and personal, owned by her before marriage, and that acquired by gift, devise, or descent, and the increase of *567all lands thus acquired, shall constitute her separate property, and article 4622, providing that all property acquired by either the husband or wife during marriage, except that which is the separate property of either one, shall be community property, subject to the husband’s control, but that the rents from the wife’s real estate shall be under her control alone, subject to article 4621, the rents from the wife’s real estate or her separate property are her “separate property,” not community property.

¶3[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 453-458; Dec. Dig. <&wkey;>125.

¶4For other definitions, see Words and Phrases, First and Second Series, Separate Property.]

¶52. Husband and Wife <&wkey;36 — Contbacts—Kent of Property — Lien.

¶6Since the rents are separate property under those provisions, the wife can make a valid rental contract of her separate property with her husband for the rental, under which she is entitled to a landlord’s lien.

¶7[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 218; Dee. Dig. <&wkey;36.]

¶8Appeal from the District Court of the United States for the Western District of Texas; Wm. B. Sheppard, Judge.

¶9In the matter of Richard Jurney, bankrupt. On petition of Mrs. I. N. Jurney against John Maxwell, trustee in bankruptcy, to review an order of the referee denying petitioner’s claim to a lien. The order of the referee was reversed, and the trustee appeals.

¶10D'ecree of the District Court, reversing the order, affirmed.

¶11The opinion of Sheppard, District Judge, was as follows:

¶12The question here presented on the record is whether or not a wife, contracting with her husband regarding her separate property, is entitled to a landlord’s lien for the rent of a certain part of her separate property let to the husband under a rental contract. The solution of this would depend primarily upon whether or not the rents derived from the wife’s separate real estate would, under the statute of 1913, be a part of the Wife’s separate estate, or a part of the community estate of the spouses.

¶13[1] Undoubtedly the wife in Texas can make a valid contract with’her hus-' band regarding her separate estate. Article 4621 of the act provides what shall constitute the separate property of the wife. It shall be “all property of the wife, both real and personal, owned or claimed by her before marriage, and that acquired, afterwards by gift, devise or descent, as also the increase of all lands thus acquired. … ” It is contended that this does not include the rents issuing from the wife’s separate real estate, but that such rents form part of the community property of the spouses. Article 4622 provides that “all property acquired by either the husband or wife during marriage, except that which is the separate property of either one or the other, shall be deemed the common property of the husband and wife, and during coverture may be disposed of by the husband only. … ”

¶14Had the Legislature stopped here, it might well be contended that the rents issuing from the wife’s separate real estate become a part of the community estate. But such a contention seems to the court to be untenable in the light of the provision contained in the same article (4622), viz.: That “the rents from the wife’s real estate … shall be under the control, management and disposition of the wife alone, subject to the provisions of article 4621.” For, if the Legislature gave the wife the “control, management and disposition” of the rents of her separate real estate, subject to the provisions of the section creating her separate property, it should become a part thereof.

¶15[2] I am constrained to the view that the “rents from the wife’s real estate” under the statute of 1913 is a part of her “separate property.” The wife, being able to make a valid contract with her husband regarding her *568separate property, is entitled to all tlte privileges and benefits which such a contract may confer, and is therefore under a rental contract entitled to a landlord’s lien.

¶16An order reversing the referee will be accordingly entered. •

¶17M. C. H. Park, of Waco, Tex., for appellant.

¶18Marshall Surratt, of Waco, Tex., for appellee.

¶19Before PARDEE and WAEKER, Circuit Judges, and FOSTER, District Judge. ,