
    Nash and Wife v. George.
    Tho husband is not liable for the debts of the wife contracted before marriage. Whether the community is liable for such debts, guere.
    
    The husband must be joined pro forma in a suit against the wife for the recovery of a debt contracted before marriage, and tho judgment goes jointly against both, with an order that execution bo levied and mado exclusively of the separate property of tho wife.
    In an action against tho husband and wife for the recovery of a debt contracted by the wife before marriage it is suiiieient to pray for judgment generally.
    Appeal from Nacogdoches. The petition alleged that one Mary Noble, now MaryiNash, wife of Cooper B. Nasii, was in 1840 indebted to Jonas-Ilarvey in tiie sum of seven hundred and nineteen dollars, and that in consideration thereof she executed her promissory note, whereby she promised to pay the said Jonas Ilarvey or bearer the said sum of seven hundred and nineteen dollars, and that by means thereof the saitl Mary Noble, now Mary Nash, and her husband became liable, to pay to the said Jonas Harvey or hearer tiie said sum of money, according to tiie tenor and effect of tiie said note; but. that the said Mary and Cooper, disregarding their promises, had not paid the said sum of money to tiie said Jonas Harvey or to Barly George, the bearer of the said note, but liad neglected to pay tiie same, to the damage of the said Barly George, &c. The plaintiff prayed that tiie defendants may he cited to answer, the complaint and show cause why judgment should not be decreed for the said sum of money, interest, and costs.
    The defendants demurred generally, and filed a general denial. The demurrer was overruled, and judgment upon a verdict of the jury was entered for the plaintiff, with the specific direction that the execution should be levied and made exclusively of the separate goods, chattels, and estates-.of said Mary-•Nash;
    
      
      T. J. Jennings, for appellants.
    For appellants it is insisted that, the husband never was liable for this debt. That this is so wo think is both declared am] enacted in a proviso to an act of May, 1838, “concerning the abatement of suits.” (See sec. 4, p. 3-1.) We contend that t his section was not, repealed by the act of 1840, adopting the common law, for this act' saves all the acts of Congress then in force. Its repeal by the District Court act of 1S46 (Sec. IDS, p. 40S) came too late for the'purposes of appellee, judging from the allegations and uncertainties of his petition. This proceeding, so far as the wife is concerned, is erroneous, because it seeks aud gains against her personally a general common-law judgment, instead of going for a sale of her separate property to remove any charge to which site may have subjected it, as in chancery. A personal judgment for debt cannot he rendered against a wife, because her existence is merged in that of her husband.
    
      J. M. Ardrey, for appellee.
    There is no statement of facts nor hill of exceptions contained in the transcript of the record, aud the only question that can he raised from the record is the overruling of the defendant’s exception to the plaintiff’s petition. It is admitted that the petition was not so skillfully drawn as id might have been; but it is conceived that when reduced into its elements the general averments thereon show a sufficient cause of action. If the defendant Mary Noble were legally incapable to make the contract on account of her coverture at the time of the making and delivery of the contract, 'she should have answered her coverture. The-plaintiff only states that Mary' Noble is now (the time of filing the petition) the wife of Cooper B. Nash, and the argument of the appellant’s counsel reqnh'es the court to presume from this averment that Mary Noble was a feme covert at the time of the making of tiie contract, which was some six years before the filing of the suit. It is true that the pleader has stated a conclusion of law from the antecedent facts, as he supposes, viz : “ Whereby the said Mary Noble, now Mary Nash, and Cooper B. Nash, tier husband, became and are liable to pay to the said Jonas Ilarvey or bearer the said sum of money, according to the tenor and effect of the said note.” But it is contended that this averment is surplusage and immaterial, and if stricken out of the stating part of the petition still leaves a substantial statement of a cause of action in general terms that is aided after verdict against Mary Noble, who is the only party legally liable by virtue of the contract. The husband is joined in the action with the wife, not because of any legal liability of bis in consequence of the marriage, but to comply with the law of remedy against married woman. It is also urged that because the judgment is rendered against him jointly with her, we claim a liability against him by virtue of bis intermarriage with the contracting party. This is not however the truth, for it will be perceived that the execution of the judgment is to be enforced alone and exclusively against the separate property of the wife, Mary Nash. This certainly indicates that the judgment only treats the defendant Cooper B. Nash as a party to the judgment pro forma, and that no execution against his property is to bo had. The form of the judgment is correct according to the common-law forms of entries, and under that system the husband would be liable to have his property executed, and by this award of execution against the separate property of the wife indicates that the judgment is not intended to affect the husband. It would have been erroneous to have entered a personal judgment against the wife without a joinder of the husband, and liad such a judgment been rendered, it would have fallen within the decision of the case of Kavanaugh v. Brown, (1 Tex. R., 481.)
   Hemphill, Ch. 3.

If the defendant Mary was a single woman at the execution of the note, there can bo no quest ion of the correctness of the j udgment, restricted, as it is in ils operation exclusively to the separate properly of the wife. That ihe husband is not liable for the debts of the wife contracted before marriage was held in several cases decided at the last term at Austin. (Callahan v. Patterson and Wife; Howard and Wife v. North.) Nor is he made liable by this judgment. It can be enforced only against the wife’s individual property. It does not lie with the appellants to complain of this judgment, at least upon the ground that it involves the husband in any responsibility. For this is not the case. Had the wife or the appellee claimed that the execution should he made as well out of the community as out of the separate property of the wife, a question might l>ave been presented which would have required consideration, especially as under the law of 1S40, which was probably in force at the date of the intermarriage of these parties, all the property brought into tlie marriage, except the lands and slaves of the partners and the paraphernalia of tlie wife, became common property, and did not, as now, remain the separate right of each partner.

There is no reason why the debt of the husband antecedent to marriage should be paid out of the community of gains, which would not apply with equal force to tlie debt of the wife contracted dum sola. But I do not intend in this place to intimate any opinion that the community can be charged with liabilities of this character incurred by either member of the matrimonial partnership.

The only question in the case is the alleged error in overruling the demurrer.

The plaintiff must by law make a full and clear statement of his cause of action, and such additional allegations pertinent to the cause as he may deem necessary to sustain the suit, with a full statement of the felief sought from tlie court.

Has the plaintiff complied with these requisites of the law?

The petition is inartificially drawn; but on considering the matters set forth rejecting immaterial statements, we are of opinion that the question above propounded must be answered in the affirmative.

The residence of the parties and execution of the uote by the defendant Mary are alleged. The facts that the said defendant was a single woman at the inception of the contract, and her subsequent intermarriage, are not, as they should iiave been, explicitly stated. But the averment that she was Mariy Noble when the note was made, and that she is now Maty Nash, the wife of the other defendant, Cooper B. Nash, are sufficiently indicative of the existence of (hese facts. It is also alleged, though not in tlie proper order of pleading, that the plaintiff is the bearer of the note, and that the same has not been paid. Judgment is prayed for generally, tlie court having the power under such prayer to decree the specific relief appropriate to the ease.

These allegations are sufficient to sustain the suit. The other matters set forth are surplusage, and may be stricken out without affecting the substance of the petition. “Arguments, inferences, and matters of law” are not to be pleaded, but facts only. The allegation of the joint liability of the defendants, by reason of the execution of tlie note, though erroneous, is but a conclusion of law, and is therefore immaterial.

I see no objection to the common-law form of declarations on debts contracted by the wife before marriage, striking out the superfluous matters which incumber such declarations and are repugnant to the plain statement of the fact .of the case, as required under our system of procedure.

The declaration shows that the liability was incurred solely by the wife. No joint promise after coverture is alleged. And the judgment against tlie husband and wife jointly, and which will be enforced against tlie property of the husband, is the legai consequence of liis liability at common law to discharge the debts of the wife contracted before marriage.

Under our law of marital rights the husband must be joined pro forma, and judgment is necessarily rendered against both, but to be made out of the wife’s' separate property, as is directed by the decree under review.

It was not essential that special relief against the separate property of the wife should have been prayed for. The fact that the debt was contracted before marriage is sufficient to authorize such decree.

Judgment affirmed.  