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pelled; unless insolvency or a state approaching it debt payable. Twenty years' delay unaccounted can be shown, or that the party was a near relation, or for pays the debt. * * * * This payment is by the absence of the party having the right to the money, operation of law. After that time, if not accounted or something which repels the presumption that a man for, the debt is presumed to be paid. This presumpis always ready to enjoy what is his own.”'
tion as a bar is conclusive of its payment unless it is
rebutted by countervailing proof. This presumption ILLUSTRATIONS.
may be overcome by proofs of various kinds of facts (A.)
and circumstances. Payment of money in part dis1. A. gave B. a bond for the payment of $300 in 1817. charge of the present existing debt; an acknowledgAn action was brought on it in 1845. The presump- ment that the debt is still unpaid and due will rebut tion that it was paid is rebutted by proof that in 1837 this presumption of payment. It is not reasonable to A., in the presence of a witness, acknowledged that it presume a debt paid which the debtor says was not was still due. (10)
paid." 2. C. brought suit against D. on a bond payable over “It would be absurd," said the court in case 3, “for twenty years before action. D. during this time, and the law to presume in the case of such admission that within twenty years, admitted that it was due, but it had been paid. All presumptions are in accordance said he had a defense to it. There is no presumption with what is usual, not against it. True the defendant that it was paid.(11)
added to his admissions the expression of a purpose 3. F. sued G. on a bond more than twenty years after not to pay, giving as a reason not that he had paid, but it was due. But duriug this time G. had twice stated that the plaintiff had obtained more than he had under that he wonld not pay it, as F. had obtained more the will of their common father. This might be imhe from their father. This rebuts the presumption of portant if it was necessary to show that a new obligapayment.(12)
tion had been assumed, but it only strengthens, if 4. C. gave a mortgage on his land to H. in 1854. In possible, the evidence that the debt remained unpaid." 1874 H. died, leaving the mortgage to his daughter M. “But the presumption of payment," it was shown in In 1879 M. asked H. for an acknowledgment that the case 4, “which arises in regard to mortgages from lapse mortgage, on which nothing had ever been paid, was a of time, without payment of interest or demand made, valid security, to which H. agreed, making a memoran- is only a presumption, and it is one which may be redum to this effect on the mortgage. M. subsequently
butted. In this case C. has acknowledged both verassigned the mortgage to E., who sent it to H. to get bally aud in writing that neither principal nor interest an admission of the genuineness of his signature. H. has been paid." kept the mortgage, and afterward stated that it was But the fact that the debtor had during the twenty lost. These facts rebutted the presumption of pay- years said to a stranger that he would not pay the debt ment.(13)
(a legacy) because the creditor was rich enough withIn case 1 it was said: “The legal presumption of out it was held insufficient. “When a person," said payment which the law allows at the expiration of the court, “in conversation with a stranger respecting twenty years after the debt becomes due is an act of the claim of another, says he will not pay it, there is tenderness toward the debtor which is sustained by not the same reason for inferring recognition that exthe absence of evidence, and like other presumptions, ists when the creditor requests and its debtor refuses must yield and give way before any circumstances and payment. In the latter case not to deny is to admit. facts on which the mind can rest with satisfaction by Besides the debt is claimed. But it does not concern which it is rebutted or repelled. It has not the power the stranger whether the claim is existing or has been or effect of a positive statutory enactment of limitation paid. He has no right to ask payment.” Bentley's or oblivion which extinguishes the original demand, Appeal, 99 Penn. St. 500 (1882). and requires a new promise to pay or its equivalent.
(B.) The mind must be free to admit the presumption, and if the exhibition of facts or circumstances interdict T., H. and S. signed a bond payable in 1860. The preand forbid the conclusions, the protection is removed. sumption in 1881 is that it is paid. But it appears that
* There could be no doubt whatever that an in 1868 T. became bankrupt, and his assignee paid T.'s acknowledgment of the debt before the efflux of share of the obligation. This rebuts the presumption twenty years excluded the legal presumption of pay- which had arisen in favor of H. and S.(14) ment. The question raised and argued was as to the competency of an acknowledgment after the expira
(C.) tion of twenty years from the time the bond became 1. A judgment was entered against L. in the year due. The court did not err in their instruction to the 1818 for over one thousand dollars. The presumption jury. The burden of proof lies on the plaintiff; and if in 1846 is that it is paid. It is shown that many judghe satisfies the jury by proper evidence that the de- ments and executions were issued against him after fendant, after the expiration of twenty years, admit- that, and that from 1820 to the present time he was ted the existence of the debt, it would be converting | insolvent and unable to pay his debts. This rebuts the legal presumption into credulity to instruct a jury that presumption of payment.(15) they were authorized to presume payment against 2. While A. and B. lived in Virginia A. gave B. a positive evidence. The legal presumption of payment bond payable in 1811. In 1812 A. removed to North would be changed into a legal and peremptory bar, Carolina to Mississippi, where he lived till he died in contrary to all authority." In case 2 it was said: “The suit was not brought
(14) Belo v. Spach, 85 N. C. 122 (1881); Hamlin v. Hamlin, 3
Jones (Eq.) 191. So as to the payment of interest, Shields v. within twenty years from the date of the bond and the
Pringle, 2 Bibb, 387 (1811). But the evidence of a joint obligor (10) Eby v. Eby, 5 Penn. St. 435 (1846); Bissell v. Jandon, 16 of a bond that he had not paid it is not admissible to repel Ohio St. 498 (1866). And a demand proved to have been made the presumption arising from lapse of time. Rowland v. on the debtor by the creditor rebuts the presumption. Shelds Windley, 86 N. C. 36 (1882). v. Pringle. 2 Bibb, 387 (1811); Wanmaker v. Van Buskirk, 1 (15) Farmers' Bank v. Leonard, 4 Harr. (Dec.) 537 (1848); Saxt. Ch. (N. J.) 685.
McClellan v. Crofton, 6 Me. 334 (1830); Fladong v. Winter, 19 (11) Stout v. Levan, 3 Penn. St. 236 (1846).
Ves 197 (1912); Wynne v. Waring, 1 Term. Rep. 270; Kilpat(12) Reed v. Reed, 46 Penn. St. 239 (1863).
rick V Brashaer, 10 Heisk. 372 (1873); Hopkirk, v. Page, 2 (13) Murphy v. Coates, 33 N. J. (Eq.) 42A (1881).
Brock. 20 (1802),
1819. He was during this time in most destitute circum- stances of a creditor who holds a bond and had the op stances except for about eighteen months at one time, portunity to collect it from the debtor but makes no when he was in possession and appeared to be the demand of payment, either of the principal or inter owner of considerable property. In an action brought est, for a period of tweuty, years afford strong pre on the bond in 1837 the presumption of payment is re- sumptive evidence of payment or satisfaction. So on butted by his insolvency. And the fact of insolvency the other hand and for the same reason the indigent is not affected by the interval of solvency of which the circumstances of a debtor, his hopeless insolvency and creditor could not have known.(16)
inability to pay his debts, are properly admissible in 3. The presumption of the payment of a bond being evidence for the purpose of repelling presumption of rebutted by proof of the insolvency of the obligor dur payment or satisfaction arising from lapse of time. ing all the time, it appears that he had a reversionary Therefore if the jury are satisfied that the defendant interest in certain shares which did not vest in him was in such a state of indigence or insolvency since the until a short time before action brought, and of which year 1820, that he was unable to pay this judgment the creditor was ignorant. This does not affect the re- and other debts which had priority or preference, the buttal.(17)
presumption of payment is repelled and the verdict 4. The issuance and return of an execution nulla bona ought to be for the plaintiffs. But if the jury are is a circumstance rebutting the presumption of the satisfied from the evidence in this case that the depayment of a judgment from lapse of time.(18)
fendant, although in indigent or embarrassed circumIn case 1 it was said: “It is a well established rule stances since the year 1820, had during that period of law that where a debt due by specialty has not been either from visible property or from other resources demanded by the plaintiff or acknowledged or recog- from which payment might have been coerced by the nized by the defendant for twenty years, and nothing use of legal process either against his property or his is shown to account for the delay, the debt shall be person, the means of paying this judgment and other presumed to have been fully paid and satisfied. This judgments having a priority of lien upon any land or rule applies not only to bonds, but to mortgages, judg- real property which he may have had, and also all ments, recognizances, decrees, and other debts of other debts, which by the use of legal diligence could record. If the presumption is not repelled by suffi- have been made to have a priority over this claim; or cient legal evidence, it becomes absolute and conclu- in other words, if it appears to the satisfaction of the sive, and the jury are bound to render a verdict for jury that this judgment might have been collected by the defendant, although they may individually believe the use of legal process at any time since the year 1830, that the debt has not been paid. The rule is founded the presumptive bar from lapse of time is not removed, on the common experience of the conduct of men in and in such case the verdict ought to be for the derelation to the transaction of business; and was in- fendant.” The jury found for the plaintiff. tended for the security and repose of society, by dis- In case 2 it was said: “The distinction is material countenancing suits for stale demands and discourag- as preventing the possession of property by the debtor ing the laches and negligence of parties in delaying to for but a short period from counteracting the effect of prosecute their claims for an unreasonable length of insolvency, as a circumstance repelling the presumptime when they had the means and opportunity of tion of payment. For if the debtor, living more than a enforcing them. The rule also was intended for the thousand miles from the creditor, and in a situation protection of the debtor whose receipts or vouchers between which and the place of the creditor's resimay perhaps be lost, or witnesses be dead or removed ; dence there was but little communication, should have or the true tate of the transactions be otherwise ob had in possession property of value to pay the debt scured by lapse of time. It is better for the peace and but for a very short time, so that the jury should think repose of society and the ends of justice that the pre- the creditor did not know of it and could not get pay. sumption arising from lapse of time should be adhered ment out of that property, it might be regarded as beto, and not be easily rebutted ; although in many cases ing substantially a continued insolvency; especially it may be contrary to the actual truth of the case. where, as here, the debtor seems barely to have had Although this rule is well established, it is equally possession of property without its appearing how he well settled that in all cases the presumption of pay- got it and whether he had paid for it.” ment arising from lapse of time may be repelled by In case 3 it was said: “The presumption raised by countervailing evidence which satisfies the minds of a a forbearance for twenty years may be repelled by evijury that the debt is still due and unpaid. The evi- dence that the debtor had not the means or oppordence for this purpose must consist, 1st, of an uncon- tunity of paying. * * The circumstance relied on ditional and unqualified acknowledgment or admis- is not sufficient to withdraw the present case from the sion, either express or implied, on the part of the de-operation of this doctrine. * * If it could be fendant within twenty years of the justness of the brought home to the creditor that he knew of this inclaim, and that it is still due; or 2d, a payment on ac- terest in remainder, an inference of negligence in forcount of either the principal or interest, either of bearing for so many years from any effort to subject which is an implied recognition of the debt; or 3d, the it to his demand might be raised against him, but as situation, condition or circumstances of the parties, the intestate himself forbore wholly, notwithstanding such as the absence of the plaintiff or the defendant in his necessities, from making any use of this interest, a foreign country, or the insolvency or embarrassment it might be that he was ignorant thereof, and still of the plaintiff or the defendant. There is no evidence more probable that these creditors knew not of either of the first or second description. But the plaint- it." iffs contend that there is sufficient and competent evi
In another case it was said: “The only true rule, dence of the third description to rebut the presump
in such a case, is to require such a state of insolvency tion of payment in the present case. The question is
to be shown to have existed during the entire ten) presented whether the poverty or insolvency of the years after the maturity of the debt, as will prove that defendant or a state approaching or manifestly tend the debtor did not pay because he could not, and nothing to insolvency is admissible in evidence. The ing short of this will the law permit to destroy its own court are of opinion that it is. The indigent circum- inference arising from the lapse of time. Besides this,
in a case like the present the presumption of payment, (16) McKinder v. Littlejohn, 4 Ired. (L.) 198 (1843).
unlike that which is raised of the death of a party (17) McKinder v. Littlejohn, 1 Ired. (L.) 66 (1840).
from his being continually absent and unheard of for (18) Black v. Carpenter, 3 Baxt. 350 (1874).
seven years, is by law referred to a particular period
of time, and has relation to the day on which the debt presumption may be opposed by circumstances acbecame due.''(19)
counting for the forbearance. In this case we think a (D.)
sufficient reason for the delay is assigned and satis1. M. sues (). on a sealed note due in 1840. The suit
factorily proved.” is brought in 1861. The presumption is that the note
(F.) is paid. It is proved that between 1840 and 1860, 0. 1. A bond, made by B. to A. in 1784, is sued on in was insane. This rebuts the presumption.(20).
1815. The action is brought in England where A. has
always lived. But from 1792 to 1815 B. has resided in (E.)
America. The presumption of payment is rebut1. A. mortgaged his land to B. A. was a son-in-law ted. (24) of B. There is no presumption, even after twenty 2. Rent of a house became due on December 25, 1794; years with no payment or demand of interest, that but was not sued for till 1816. One of the parties rethis mortgage has been paid.(21)
sided in England, the other in America. The break2. B. mortgaged his land to C. After a lapse of time ing out of the war between the countries and the disin which the presumption of payment would arise, the tance between the parties, prevented the presumption rule is different where it appears that B. had died of payment from arising.(25) many years before, leaving a wife and children in poor 3. During the period the time was running, the circumstances.(22)
parties lived in the south; the war was flagrant and 3. A father left his son certain land having a doubt- the courts were closed. This rebuts the presumpful title, with the provision that should it be recov- tion.(26) ered from him at law, B. another son, should pay him “The principle upon which the presumption of paya certain sum from the estate. The land was taken ment arises from the lapse of time is a reasonable prinfrom A. by legal process in 1742. In 1788, A. sued B.'s ciple and may be rebutted by any facts which destroy executor for the sum. The presumption was that B. the reason of the rule. That no presumption could had paid A. It appeared however that B. “had arise during a state of war, in which the plaintiff amused A. until his death in 1785, with promises of was an alien enemy, is too clear to admit of doubt." providing for him by his will,” which he never did. (27) The presumption of payment is rebutted. (23)
(G.) In cases 1 and 2 it was said. “The very situation of 1. A bond payable on demand was executed in 1843, the parties is of itself sufficient to rebut the presump- A suit was brought on it in 1867. The presumption tion. The mortgagor was a near relative; he had was that it had been paid. It appeared that though married the daughter of the inortgagee and had issue. payable on demand it was not the intention of either The mortgagor died many years age, leaving his wife party that it should be paid till a future time. The and children in possession. They were not in a situa
presumption is rebutted.(28) tion to pay either principal or interest. To have ex- 2. A surety to a note under seal against which by acted the payment might have brought distress upon lapse of time a presumption of payment has arisen is those who depended upon this property for a support, asked during this time to sell bis land to another. He and would have been harsh to say the least of it. To
replies that he cannot, as the creditor if he does will suffer the mortgage to remain without compelling pay.
push him on the note, which he has promised not to do ment was a reasonable indulgence, and ought not to
during his life-time. This rebuts the presumption of be set up now for the purpose of defeating the claim.
payment.(29) One ground for a presumption of payment growing In case 1 it was said: “Do sufficient circumstances out of a lapse of time, is that a man is always ready to exist in this case to rebut the presumption of payment ? enjoy what is his own. Whatever will repel this, will I think so. The bond, it is true, was payable on detake away the presumption of payment, and for this
mand, but the accompanying circumstances show conpurpose it has been held sufficient that the party was
clusively that neither the obligors nor the obligee exinsolvent or a near relation."
pected this bond to be paid promptly. It is true it was In case 3, Marshall, who was then at the bar, argued drawn payable ou demand, but the accompanying ciras foliows: "I admit that length of time which in
cumstances show conclusively that neither the obliduces a presumption that a claim has been satisfied
gors nor the obligee expected this bond to be paid will create an equitable bar. But this presumption
promptly. It is true a legal cause of action arose the may be repelled by testimony accounting for the de
day the bond was executed; but it would have been a lay, and in this case there is a sufficient reason
gross breach of good faith if the obligor had sued on signed and proved for the appellants not asserting his
it promptly. * * The bond in this case was given right at an earlier day. It appears that the testator of
by the members of a mercantile firm to a brother of the appellee had been long married without having
one of the obligors. It was given for money advanced children; that he acknowledged his brother's lenity to them to be used in their business. And the obligee in not coercing satisfaction of his claim, and promised borrowed it for the express purpose of letting them to make him an ample provision at his death.” The
have the use of it in their business. Their credit was court agreed with this view of the case saying: “The pot sufficient to enable them to borrow this money, judge who pronounced the decree of reversal in this and the obligee borrowed it on his own, simply for case seems to have considered no other question, but the presumption against the demand on account of its
(24) Newman v.Newman, 1 Stark. 101 (1815); Helm v. Jones,
3 Dunn, 88 (1835). antiquity. It is undoubtedly true in general that a right for a length of time unaffected, is subject to a
(25) Bailey v. Jackson, 16 Johns. 210; 8 Am. Dec. 309 (1819); presumption of its having been satisfied sufficiently
Shields v. Pringle, 2. Bibb, 387 (1811). stroug to defeat it. But it is equally true that this
(26) Hopkirk v. Page, 2 Brock, 20 (1822); Gwyn v. Porter, 5
Heisk. 254 (1871); Jackson v. Pierce, 10 Johns. 415 (1813); Mont(19) Grant v. Burgwyn, 84 N. C. 560 (1881); Powell v. Brink- gomery v. Bruere, 4 N. J. (L.) 266 (1818); Hale v. Pack, 10 W. ley, Busb. (N. C.) 151 (1852).
Va. 145 (1877); Thomas v. Hunnicutt, 54 Ga. 337 (1875); Kilpat(0) McLellan v. Crofton, 6 Me. 334 (1830).
rick v. Brashaer, 10 Heisk, 372 (1873); Cannon v. Mathis, id. (21) Wanmaker v. Van Buskirk, 1 Saxt. Ch. (N. J.) 685 575 (1873). (1822).
(27) Marshall, C. J., in Dunlop v. Ball, 2 Cranch, 184 (1804).
(28) Hale v. Pack, 10 W. Va. 145 (1877). (3) Eustice v. Gaskins, 1 Wash (Va.) 188 (1793).
(29) Fisher v. Phillips, 4 Baxt. 243 (1874).
thorize the incorporation of any society for the purpose of establishing and maintaining any educational institution or chapel, or place of Christian worship, of any parsonage, rectory or official residence of any bishop, pastor or minister of any Christian church or association;" and section 3 of that act provided that
auy university or college incorporated under the said act, or under this act, may take and hold by gift, grant, devise or bequest property or endowment not exceeding in value or amouut one million of dollars." Section 1 of the act of 1848 was again amended by chapter 649 of the Laws of 1872 so as to read as follows: “Any five or more persons of full ago, a majority of whom shall be citizens of and residents within the State who shall desire to associate themselves together for benevolent, charitable, literary, scientific, missionary or mission or other Sunday school purposes, or for the purpose of mutual improvement in religious knowledge or the furtherance of religious opinion, or for any two or more of such objects combined, may make, sign and acknowledge" a certificate and become incorporated.
We are of opinion that these aots did not authorize the formation of a medical college. According to the ordinary use of language a medical college would not be described as a scientific or literary institution. It would not be geverally classified as such, and we do not think it was the purpose of the Legislature to authorize any five citizens at any time and place, and without any restriction to organize an institution which could in its own way, and upon such loose aud liberal terms as it chose to prescribe, issue diplomas to its graduates and confer upon them the degree of doctor of medicine. Medical colleges bad before been organized by special acts, or under the general act of April 5, 1813, which was not repealed by the act of 1848. Subsequently by the act, chapter 184 of the Laws of 1853, the Legislature dealt with the subject of medical colleges. Section 6 of that act provides that any citizens, not less than ten in number, who may desire to found and endow a medical or surgical college or school within this State, may make, sign and acknowledge a certificate and become a corporation, as therein provided. They are required to have an endowment of $50,000, and every college organized under that act bas power to grant and confer upon its graduates the degree of doctor of medicine upon the recommendation of the board of professors of the college and of at least three curators of the medical profession appointed by the trustees. “But no person shall receive a diploma conferring such degree unless he be of good moral character and of the age of twenty-one years, and shall have received a good English education, and shall bave pursued the study of medicine and the sciences connected therewith, for at least three years after the age of sixteen years, and have received instruction from some physician or surgeon fully qualified to practice his profession, until he is qualified to enter a medical college, and (except in cases hereafter provided) shall also after tbat age have attended two complete courses of lectures delivered in some incorporated medical college."
It cannot be supposed that the Legislature intended to authorize the creation and operation of medical colleges under tbe act of 1848, without any checks or restrictions, while it requires that such colleges, organized under the act of 1853, should comply with the requirements, perform the duties and be subject to the restrictions carefully specified in that act. We think that before the passage of the act of 1853 the only way for the incorporation of a medical college was either by special charter granted by the Legislature or under the act of 1813 above referred to. After the act of 1853 the only general act for the formation of medical colleges was that act, and no medical college could there
PEOPLE V. GUNN. A medical college is not embraced within the terms "literary
or scientific college or university." The act of 1848, chapter 319, and the acts amendatory thereof
and supplementary thereto do not authorize the forma
tion of medical colleges. The act of 1882, chapter 367, has reference only to scientific
and literary colleges organized under the act of 1848, in whose organization there has been some imperfection, and does not apply to "medical colleges," as no reference is made to them in the act of 1848. F. J. Fithian, for appellants. Edward C. Ripley, for respondents. PPEAL from judgment of General Term affirming
judgment of Special Term entered upon an order sustaining demurrer to answer.
The action was in the nature of a quo warranto brought under the Code of Civil Procedure, section 1948, subdivision 3, charging the “United States Medical College” of the City of New York with exercising franchises and privileges without authority of law.
EARL, J. The question to be determined in this case is whether the “United States Medical College" of the City of New York was legally incorporated at the time of the trial of this action. The defendants claim that it was legally incorporated under the act, chapter 319 of the Laws of 1848, and the several acts amending the same and supplementary thereto. That act was entitled "An act for the incorporation of benevolent, charitable, scientific and missionary societies," and the first section, as originally enacted, provided that “any five or more persons of full age, citizens of the United States, a majority of whom shall be citizens of this State, who shall desire to associate themselves for benevolent, charitable, scientific or missionary purposes, may make, sigu and acknowledge a certificate" and become incorporated.
That act was amended by chapter 51 of the Laws of 1870, which provided that it should “be deemed to au
(30) Bowie v. Poor School Soc., 75 W. Ya. 300 (1881): For other cases in which the circumstances of the case were held to rebut the presumption of payment from lapse of time, see Ross v. Ellsworth, 49 Me. 416 (1860); Hendrick v. Bannister, 12 La. Ann. 373 (1857); Wemet v. Missisquoi Lime Co., 46 Vt. 458 (1874); Tomlin v. How, 1 Gilmer (Va.), 8 (1820).
after be organized in this State except in the way pre- Under our system of marital law a wife can, in a proper case, scribed in that act or by special obarter granted by the for the protection of her separate rights, maintain a suit Legislature.
in her own name against her husband. But it is claimed on the part of the defendants that it their college was originally illegally incorporated the | APPEAL from Tarrant county. corporation was legalized by the act, chapter 367 of the Laws of 1882. That act is entitled "An act to restrict
Sawnie Robertson, for appellant. the formation of corporations under chapter 319 of the A. M. Carter, for appellee. Laws of 1848, entitled 'An act to provide for the incor
Appellant brought suit against her husband, A. P. poration of benevolent, charitable, scientific and mis
Ryan, upon two notes made by defendant aud payable sionary societies,' and the acts amendatory thereof,and
to appellant, aud made affidavit for, and obtained a to legalize tbe incorporation of certaiu societies or.
writ of attachment on the ground that said defendant ganized thereunder and to regulate the same."
was about to dispose of his property for the purpose of If the act was intended to legalize the incorporation
defrauding his creditors. Defendant allowed judgof this college its title is very deceptive and mislead.
ment to go by default. ing, because as bas already been shown, it had no right
Appellee having also caused writs of attachment to to organize under the act of 1848, and was not there
be levied upon the same goods that appellant's attachafter organized thereunder, or in fact in any way. Sec
ment was levied upon, intervened in this cause, tion 1 of the act of 1882 provides that “hereafter no
claiming that appellant's lien was subordinate to literary or scientific college or university shall be in
theirs. corporated under the provisious of chapter 319 of the
On the trial it was shown that appellant's debt was Laws of 1848 without the approval of the regents of
her separate property. the university.”
The court charged the jury, that appellant "being at As we bave already stated, the terms "literary or
the date of the institution of this suit the wife of descientific college or university" do not embrace a med
fendant, * * * could not legally cause to be is. ical college. Section 2 provides that “all scientific and
sued and maintained a writ of attachment against the all literary colleges and universities organized uuder
community property of herself and husband, so as said acts which shall have reported to the said regents
thereby to acquire paramount rights over creditors withiu two years last past are hereby declared legally
holding debts, for the payment of wbich community incorporated." The United States Medical College is
property was liable." The charge is assigned as not a scientific or literary college, aud bence again is
error, and is the only oue relied upon for reverpot embraced within this language. Reading the lan
sal. guage of this act as we find it, it has reference only to
WEST, J. We are of the opinion that the court erred scientific and literary colleges, organized and author
in instructing the jury without any qualificatiou ized to be organized under the act of 1848, in whose or
whatever, as matter of law, that the appellant, who ganization there has been some imperfection, and it
was a creditor of appellee Ryan, because she was his was such corporations which are declared to be legally
wife when the suit was filed, could not lawfully have incorporated. We have no means of knowing from
in her favor a writ of attachment issued against the any thing contained in this act or from any thing of which we can take judicial notice that it was the in
community property, and thereby acquire rights su
perior to other creditors who had just debts against the tention of the Legislature, by the language used in the
community. act, to legalize the incorporation of this college. If it was intended to do so, the language used by the framers of
Uuder our system of marital law, as regulated by the
Constitution and statutes, and as expounded from the act seems to bave been intentionally deceptive.
time to time by this court, the wife can, in a proper The words "medical college " are not found in the act
case, for the protection of her separate rights, mainof 1848, or in any of its amendments; and if it had
tain a suit ip ber own name against her husbeen intended to deal with a subject of so much im
band. portance to the public health and the general welfare,
The case of Price v. Cole, 35 Tex. 471, was a suit by a it would probably have been mentioned in unmistaka
wife against her husband to foreclose a lien created by ble language.
a mortgage executed by the husband to the wife upon We are therefore of the opinion that the judg: community property, to secure a separate debt due by ment below is right, and should be affirmed with
him to his wife. A creditor intervened, and the court
refused, at his instance, to foreclose the lien supposed All concur.
to exist by reason of the wife's note and mortgage. It was, in fact, treated as void as against creditors of the
community. MARRIAGE-COMMUNITY PROPERTY-WIFE SU
Upon argument, and an examination of the quegING HUSBAND.
tion, the Supreme Court, as theu organized, in 1871-2,
reversed the judgment of the court below, and renTEXAS SUPREME COURT, APRIL 29, 1884.
dered a judgment in favor of the wife on the note ex
ecuted to her by her husband, and entered a decree RYAN V. BATES.
foreclosing the lien, and directing the land to be sold Where A., a married woman, sued her husband for debt, and
for payment of the wife's debt. also sued out a writ of attachment, and her husband's
In Hall v. Hall, 52 Tex. 298-299, this court had occreditors intervened, claiming that A.'s attachment was casion to pass in review the opinion delivered in Price collusive, that she and defendant were wife and husband, v. Cole, on this point. The case in which it was conand that their debts were community debts, and the prop- sidered was one of some interest and importance, both erty on which the attachment was levied was community, on account of the difficult legal question involved, and and the court charged the jury as a matter of law, with
also by reason of the nature and character of the suit. out any qualification whatever, that because A. was the wife of defendant she could not lawfully have, in her fa
The questions too were carefully and fully presented vor, a writ of attachment issued against the community
to the court by counsel of learning.experience and abilproperty, and thereby acquire rights superior to other
ity. The case too itself bears evidence of being fully creditors, who had just debts against the community,
considered by the court. It was there in effect held, held, error.
and we believe correctly held iu substance, that an ac