
    CAUBLE v. BEAVER-ELECTRA REFINING CO.
    (No. 3875.)
    (Supreme Court of Texas.
    June 10, 1925.)
    1. Husband and wife <&wkey;266 — Husband may give wife his separate property or his interest in community property, and constitute it her separate property.
    Husband may give to wife either his separate property or his interest in eoihmunity property, and thereby constitute it her separate property, if it does not interfere with rights of creditors.
    2. Husband and wife <&wkey;l60 — Wife’s separate estate liable for fuel oil necessary to oil business in which she was engaged'.
    Notwithstanding wife was engaged in oil business without power to make contract generally under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4629a-4629d, where oil rigs and machinery belonged to her separate estate under Vernon’s Ann. Civ. St. Supp. 1918, art. 4621, wife had sole management, control, and disposition thereof, and in exercise of such control she could purchase fuel oil which was necessary to operation of machinery, and bind her separate estate on such contract.
    3. Husband and wife i&wkey;l60 — Wife’s separate estate held liable for fuel oil used in operation of property constituting her personal earnings, and acquired by her efforts alone.
    ' Even though oil rigs and machinery, for the operation of which wife purchased fuel oil, were not her separate property, where they were personal earnings of wife and acquired by her efforts alone, under Vernon’s Ann. Civ. St. Supp. 1918, art. 4621; Vernon’s Sayles’ Ann. Civ. St. 1914, art's. 4622, 4624, they were under her separate control and management, and wife could bind her separate estate for fuel oil thus purchased.
    Error to Court of Civil Appeals of the Seventh Supreme Judicial District.
    Action by the Beaver-Electra Refining Company against Mrs. S. O. Cauble. Judgment for plaintiff was affirmed by the Court of Civil Appeals (243 S. W. 762), and defendant brings error.
    Affirmed.
    Weeks, Morrow & Francis, of Wichita Falls, for plaintiff in error.
    Aynesworth, Williams & Watkins, of Wichita Falls, for defendant in error.
   GREENWOOD, J.

This case involves the right of a married woman to bind herself by a contract incidental to the management of her separate property or of community property committed to her sole management, control, and disposition. In opinions delivered today in the cases of Arnold v. Leonard, 114 Tex. -, 273 S. W. 799, and Gohlman, Lester & Co. v. Whittle, 114 Tex. -, 273 S. W. 808, the court has affirmed the right of a married woman to bind herself by contracts of thiá nature. The case was withdrawn from the Commission of Appeals pending our determination of the eases cited after full argument.

The opinion of section A of the Commission of Appeals by Judge Bishop is in accord with our conclusions, and is adopted as properly disposing of the case. It is as follows:

“Mrs. S. O. Cauble, plaintiff in error, engaged in the oil business upon her separate account, with the understanding with her husband, H. F. Cauble, that whatever profits she should make' there'from were to. belong to her personally, and constitute her separate estate. She first began business as a broker, and from this business made commissions from which she derived about $48,000. With this money she began to buy and sell oil leases, and also bought and operated drilling rigs and machinery. She would operate these drilling rigs in drilling oil wells upon her own leases, and also leases owned by other parties. While so engaged in operating her drilling machinery and for the necessary purpose of operating same, she purchased from Beaver-Electra Refining. Company, defendant in error, fuel oil of the market value of $4,452.58.
“Defendant in error filed this suit in the district court against plaintiff in error and her husband, H. F. Cauble, by allegations usually made in an ordinary suit on an open account for the market value of said fuel oil, and also alleged that S. O. Cauble was a married woman, having a_ separate estate; that she purchased said oil under the name of the Cauble Oil Company, a trading name for herself and husband, and in so doing was acting for her separate estate and her husband;'that they were partners in business; and that each, and the separate estate of said S. O. Cauble, became liable, bound, and promised to pay the full amount of said claim.
“I-I. F. Cauble and Mrs. S. O. Cauble filed separate answers consisting of general demurrer and general denial. Plaintiff in error, Mrs. Cauble, by special plea answered that the fuel oil purchased was not necessary for the support of herself and children, and that as a married woman she could not in law make a binding contract to pay for same on account of her coverture, which she pleaded in bar. She also alleged that at the time of the purchase she was engaged in business for her own account, in which she bought and sold leases, and drilled oil wells, and engaged in the oil business generally; that she was not in any way joined by her husband, and was not acting as his agent, and he had no interest whatever in such enterprise; that she was so engaged without his consent, and he was not a party to her transactions. H. F. Cauble, by special plea, denied partnership, and alleged that he was not connected in any way with her oil dealings and transactions; and that he did not authorize her to incur this obligation, and received no benefit therefrom, and had no interest in the properties affected thereby.
“The ease was tried before the court without a jury, and a judgment was rendered for defendant in error against plaintiff in error for-the amount of said account with interest, and that defendant in error take nothing against H. F. Cauble, and he was discharged with his cost. On appeal by plaintiff in error the judgment of the trial court was by the Court of Civil Appeals affirmed (243 S. W. 762), and the case is before the Supreme Court on writ of error.
“Just a few days prior^ to the trial in the district court a decree was rendered dissolving the bonds of matrimony theretofore existing between plaintiff in error and H. F. Cauble, and by said decree she was awarded all of the property she had acquired by reason of her own efforts by agreement of both parties in the divorce case.
“By her first assignment plaintiff in error claims that the property for the use of which the fuel oil was purchased was community property of herself and now former husband, H. F. Cauble, and for this reason she is not personally liable on account therefor.
“This oil was purchased by her for the purpose of operating oil rigs and machinery which she acquired as a result of her individual efforts with an understanding with her hfisband that all property so acquired by her should be her separate property. The husband has the right to give to the wife either his separate property, or his interest in community property, and thereby constitute it her separate property if he so desires, and if this does not interfere with the rights of creditors. In this case this seems to be the effect of what was done. Lindley v. Lindley, 102 Tex. 135, 113 S. W. 750; Cox v. Miller, 54 Tex. 16; Green v. Ferguson, 62 Tex. 529.
“The ease of Cox v. Miller, supra, does not sustain the claim of plaintiff in error that the property for the use of which the fuel oil was purchased was community property, and not the separate property of Mrs. Cauble under the agreement and understanding between her and her husband. The holding there is that community property under the statute cannot be converted into separate property of the wife by mere agreement or understanding, and thereby defeat the rights of creditors. In the opinion the court says:
“ ‘We do not mean to deny that the husband * ⅜ * may not make to the wife a direct gift of his separate property or out of the community estate. What we mean to say 'is, that, by a mere agreement between husband and wife, they cannot change the character or nature of their rights and interest in property, owned and acquired by them from that prescribed by law, and thereby relieve it from liability to be taken in satisfaction for the payment of community debts.’
“Under the facts in this case it was the intention of H. F. Cauble that all property Mrs. Cauble should and did earn by her individual efforts was to be her separate property. He relinquished and gave to her this property in her own right. In discussing the rights of husband and wife and their community property, Justice Stayton, in Green v. Ferguson, supra, says:
“ ‘That as between them, he may make a gift of the common property in existence, or as it comes into existence, cannot be denied.’
“The next contention made, by plaintiff in error is that, even if same was her separate property, the fuel oil purchased by her was not necessary for the proper protection, care, and preservation thereof, and for this reason she had no right to contract for such oil and thereby render her personally liable.
“Mrs. Cauble, being a married woman, could not by her contract render herself personally liable,. unless she was by law given the right to make the contract. She had not by law been given the general right to contract. She had not applied to the district court to have her disabilities as a married woman removed, and been declared a feme sole for mercantile and trading purposes as provided by the acts of the Legislature of 1911 (articles 4629a to 4629d, inclusive, Vernon’s Sayles’ Ann. Civ. St. 1914). These purchases were not for necessaries furnished her or her children. So, if she is to be held personally liable, it must be by virtue of some law which authorized her to purchase this oil.
“Article 4621, R. ,S., as amended by Acts of 1917 (Vernon’s Ann. Civ. St. Supp. 1918, art. 4621), provides that the wife ‘shall have the sole management, control and disposition of her separate property, both real and personal,’ subject to certain restrictions on incumbrances and transfers.
“These oil rigs and machinery belonged to her separate estate. She owned them in her own right. She had the right to operate them either on her own leases, or on the leases or land of others for whatever compensation she saw fit. She was by statute given the sole management and control of them. Fuel oil was necessary to their operation, management, and control, and it would make no difference whether such fuel oil was necessary for their protection, care, or preservation. .In her sole management and control she was necessarily authorized, to purchase this oil and bind her separate estate on such contract. Whitney Hardware Co. v. Mc-Mahan, 111 Tex. 242, 231 S. W. 694.
•“In this cited case the Supreme Court, in an opinion by Justice Greenwood, uses this language:
“ ‘As incidents to the wife’s power of exclusive management and control of her separate property and of the specified portions of the community, she becomes vested with all such contractual power relative to same, as is requisite to make her power effectual.
“ ‘The right to control and manage a store building or an improved farm, and to receive the rents, would be or would soon become valueless if the holder of the right were denied the power to make a binding rental contract and the power to make engagements for repairs or betterments. * * *
“ ‘The power granted by the statute to Mrs. McMahan to manage and control the store building, belonging to her separate estate, and the rents to be derived therefrom, carried with it the incidental and collateral power to make a contract with her tenant to repair the store building and to employ others to make needed repairs. She would be liable for the breach of her contract and for the proximate results of negligence on the part of those employed by her, without protection from her coverture.’
“It seems, too, that the power of the plaintiff in error to enter into these contracts of purchase, and thereby bind herself, should be sustained, even if the oil well rigs and machinery were not her separate property. They were personal earnings of the plaintiff in error. They were acquired by the efforts of the wife alone. Article 4622, R. S., as amended by Acts of 1913 (Venon’s Sayles’- Ann. Civ. St. 191,4, art-. 4622), provides that ‘the personal earnings of the wife * * * shall be under the control, management and disposition of the wife alone.’ Article 4621 provides that the personal earnings of the wife shall not be subject to the*payment of debts contracted by the husband.
“Article 4624, Vernon’s Sayles’ Ann. Civ. St. 1914, is as follows:
“‘Neither' the separate property of the husband nor the community property other than the personal earnings of the wife, and the income, rents and revenues from her separate property shall be subject to the payments of debts contracted by the wife, except those contracted for necessaries furnished her or her children; provided the wife shall never be the joint maker of a note or a surety on any bond or obligation of another without the joinder of her husband with her in making such contract. [Act March 13, 1848. P. D. 4643. Acts 1913, p. 61, § 1, amending articles 46-24, Rev. St. 1911.]’
.“The claim is also made that a married woman engaged on her own account in the oil business cannot bind herself by an enforceable contract to purchase and pay for fuel oil used in the course of such business. It is true Mrs. Cauble was engaged in the business of buying and selling oil leases. She had not been granted the general right to make contracts in relation thereto, and could not do so and thereby bind herself personally. However, the fact that she was engaged in a trading business did not deprive her of the exclusive power given her by statute to manage and control either' her separate property and estate, or her personal earnings, and to make ,such contracts as were proper or necessary to such exclusive management and control. Notwithstanding she was engaged in the oil business without the power to make contracts generally, yet she was clothed with the same power to make contracts in the management and control of her separate property and her personal earnings,, as was a married woman not engaged in such business. The.mere fact that she so managed and controlled such property as to increase such business, or in aid thereof, would not deprive her of the right to make these contracts of purchase. The law gives her the- exclusive right to manage and control. There is nothing to indicate that she would be required to allow this property to deteriorate by nonuse, or that she was to be restricted in her management and control, so as not to allow such property to be put to a use which would aid her in her trading business. Mrs. Oauble testified that she purchased these rigs with money she earned from com-, missions, and that she contracted to buy this fuel oil to operate her own rigs. The fact that she used some of the oil to operate a rig not owned by lier would not release her from liability; same having been purchased for use in operating rigs owned by her.
“We therefore recommend that the judgments of both the district court and Court of Civil Appeals be affirmed.”

It is therefore ordered that the judgments of the district court and of the Court of Civil Appeals be affirmed. 
      (&wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered -Digests and Indexes
     