text:
    No. 12,407.
    Clifton Cannon vs. Home Insurance Company of New Orleans.
    Question presented is, whether insurance effected by mortgagee is “ other insurance” in the sense prohibited by prior policy taken out by o wner of property.

      Held:

    1. That the interest of mortgagee is distinct from that of mortgagor and is insurable.

      2. That where mortgagee, of his own motion, takes out insurance in name of mortgagor, or owner of property, without authorization of latter, and causes the loss, if any, to be made payable to him (mortgagee) it is, in effect, insurance by mortgagee of his interest for his account.
    8. That such insurance is not “ other insurance ” which vitiates prior policy o mortgagor.

      4. That to constitute “ other insurance,” avoiding previous policy, the additional insurance must he upon the same subject, risk and interest, effected by the same insured, or for his benefit, or with his knowledge, or consent; that neither identity of name or identity of property is decisive upon the question — the interests covered by the policies must also be identical.
    5. That the rule governing a provision for apportionment of the loss where there is other insurance, is that such apportionment only takes place where the insurance covers the same interest.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      Clegg & Quintero for S. Haas, Subrogee of Plaintiff, Appellee.

      E. Howard MoCaleb for Defendant, Appellant.-
    Argued and submitted March 15, 1897.
    Opinion handed down March 29, 1897.
    Judgment modified and rehearing refused June 14, 1897.
   The opinion of the court was delivered by

Blanchard, J.

This is an action on a policy of insurance against fire, underwritten by defendant company, in the sum of ten thousand dollars, on the sugar house on the Magnolia plantation, in Rapides parish, and on the fixed and movable machinery contained therein.

The property insured was destroyed by fire on the 17th of April, 1895.

Proofs of loss appear to have been made on blanks furnished by the company and were delivered to defendant. Payment was declined, and on September 5, 1895, this suit was instituted.

Three defences are set up in the answer, viz.: concealment of incumbrances existing on the property at the time of insurance, the taking out of other insurance in violation of alleged stipulation to the contrary in the policy, and the failure of the insured to furnish timely proofs of loss.

The first and last of these defences were abandoned — at least not insisted on in argument.

Plaintiff’s recovery is strenuously resisted, however, on the second ground of defence — the taking out of “other insurance; ” and from a judgment in his favor, this appeal is taken.

The facts pertinent to the issue are these:

The Magnolia plantation had been the property of S. S. Pierce. In June, 1891, he mortgaged the place to Caldwell & Judah, of Memphis, Tenn., to secure the sum of twelve thousand six hundred and seventy-five dollars. One of the stipulations of this mortgage was that the mortgagor bound himself to keep the building on the premises insured for not less than six thousand dollars; the policy to be made payable to the mortgagees and delivered to them; and in event of failure of mortgagor to do this, the mortgagees were authorized to take out such policy, pay the premiums, and the money paid for premiums was to be considered as added to the indebtedness and secured by the mortgage.

The commercial firm of Flower & King recovered a judgment against Pierce, and under a writ of fieri facias issued thereon seized .and sold the Magnolia plantation. At this sheriff’s sale, which took place on December 2, 1893, Clifton Cannon, plaintiff herein, purchased the property for the sum of twenty-six thousand seven hundred dollars and fifty-three cents. The sheriff’s deed recites that this sum was settled by the purchaser retaining in his hands six thousand eight hundred and ninety dollars and fifty-three cents to pay a special mortgage in favor of M. Levy’s Sons., ten thousand six hundred and thirty dollars to pay a special mortgage in favor of ■Caldwell & Judah, eight thousand eight hundred and fifty-eight dollars and eighty-five cents to pay a special mortgage in favor of G. W. Bennett, and by paying the remainder of the purchase price, three hundred and sixeen dollars and fifteen cents, in cash, these several sums aggregating the amount of Cannon’s bid.

It does not appear that Cannon took out any insurance on the buildings of the Magnolia plantation until October 24, 1894, when •the policy now sued on was taken out for six months. Nor is it established by the evidence that any insurance was taken out by any ■of the mortgage creditors of the plantation on the buildings thereof, from the time of Cannon’s purchase down to March 24, 1895, when -Caldwell & Smith (successors to Caldwell & Judah) took out a policy for six thousand dollars in the Orescent Insurance Company on the sugar house and machinery of the Magnolia plantation. This policy was taken out in the name of Clifton Cannon, owner of the plantation, but was assigned to the Edinburgh-American Land Mortgage Company, Limited, and loss, if any, was made payable to them.

This mortgage company appear to have been the assignees of the Caldwell & Judah mortgage upon the Magnolia plantation, and Caldwell & Smith were their agents at Memphis, Tenn., where the insurance in the Orescent Insurance Company was effected.

The policy in the defendant company, which Cannon had taken out, was for his own account.

That taken out by Caldwell & Smith, on the same property, in the Crescent Insurance Company, was, in effect, for account of the mortgage creditors they represented, though in taking it out they used Cannon’s name..

There was no authorization from Cannon to Caldwell &»Smith to take out this policy in his name, nor to take it out at all. The application for the policy was made to the insurance company by Caldwell & Smith, not by Cannon.

• Caldwell & Smith wrote Cannon, on March 27, 1895, that they had taken out six thousand dollars for one year,” and asked him what other insurance he had upon the building.

In this letter they did not mention what company this insurance had been effected in, nor did they inform Cannon that it had been written in his name.

The only answer Cannon made to this was an acknowledgment of receipt of the letter, and the statement that he had ten thousand dollars insurance on the sugar house, which would expire April 24, and that, thereafter, he intended taking out a smaller policy, as the grinding season will be over.”

On April 1, 1895, Caldwell & Smith wrote again to Cannon, informing him that they had taken out six thousand dollars insurance, and this time mentioned that it had been taken out in the Orescent Company ; that the premium was one hundred and eleven dollars, and that they would have endorsed on the policy ten thousand dollars concurrent insurance.

Again was there a failure to inform him that the policy had been taken out in his name, and it nowhere appears that he knew, up to the time of the Are, that the policy of the Crescent Insurance Company had been issued in his name. It seems that the day after the fire Cannon wrote Caldwell & Smith, announcing the loss of the sugar house. They replied expressing regret at his-misfortune, again stating that they held six thousand dollars in the Crescent Company, and had informed the company of the loss by fire.

Some ten days after the fire Cannon had an interview with the president of the Orescent Insurance Company about the loss with the view, it seems, of its adjustment. Before the company would proceed with negotiations looking to an adjustment, Cannon was required to sign an agreement to the effect that an investigation looking to a settlement of the loss should in no wise prejudice the rights of the insurance company to raise objections to other questions which might be involved, nor be held to waive any of the stipulations of the policy of insurance.

But he went no further in the attempted collection of this policy.

He did not file any claim in respect to it, either at that time or subsequently, and it seems that the mortgagees themselves have not made any effort to collect the policy.

The question presented for decision is whether the insurance effected by Caldwell & Smith in the Orescent Insurance Company is other insurance ” in the sense prohibited by the terms of the policy issued to Cannon by the defendant company.

We do not think it is.

This second insurance was not taken out by procurement of plaintiff, and he can not be held to have had any interest in it.

The only parties in interest in this policy were the holders of the Caldwell & Judah mortgage upon the Magnolia plantation. These mortgagees might have taken out this insurance in their own names, and it does not help defendant’s case that they chose to take it out in plaintiff’s name, making the loss, if any, payable to themselves. The use of plaintiff’s name did not make the interest thereby insured his. It was none the less the interest of the mortgagees that was thus covered.

In the policy of insurance sued on defendant company had not stipulated that other parties having distinct insurable interests should not exercise that right, and that a mortgagee, or creditor having a lien on property, has an insurable interest is well understood. Bell vs. Insurance Co., 5 R. 423.

Having such insurable interest, it did not lie in the power of defendant to prevent the mortgages, the Edinburgh-American Land Mortgage Company, Limited, from effecting insurance for their account on the property.

What amounts to “ other insurance ” is stated by May on Insurance, Sec. 365, to be additional and valid insurance, prior or subsequent, upon the same subject, risk and interest, effected by the same insured, or for his benefit, or with his knowledge or consent.

“ Neither, identity of name or identity of property is decisive upon the question. In order to amount to other insurance the interests covered by the policies must be identical.” Wood on Fire Insurance, Secs. 377, 374.

Insurance by a mortgagor and also by a mortgagee, for their individual benefit, is not “ other insurance.” Acer vs. Merchants Ins. Co., 57 Barb. (N. Y.) 68.

Where a consignor of a vessel effected an insurance on the freight with the warranty “ no other insurance,” and the consignee who had accepted a draft against such freight without instructions from the consignor effected another insurance on the freight at the place of destination, it was held that this last insurance could not be considered a violation of the warranty contained in the former. Williams vs. Crescent Mutual Insurance Co., 15 An. 651.

The contention of defendant that plaintiff’s consent to the second insurance must be presumed from the obligation he was under to fulfil the stipulations of the mortgage executed by S. S. Pierce upon the property in favor of Caldwell & Judah is equally unfounded. So, too, the contention that Caldwell & Smith, in procuring the second insurance, acted as the agent of plaintiff, and that plaintiff subsequently ratified their act.

The well considered case of Titus vs. Insurance Co., 81 N. Y. 415, announces a doctrine, which we approve, at variance with these contentions, and so far as the application of that doctrine to the facts of the instant case is concerned, we fail to appreciate that the well understood difference between a common law mortgage and a civil law mortgage insisted on by defendant has any bearing.

The liability of defendant attached when the fire, which destroyed the sugar house, occurred.

Up to that time there had been nothing done by the plaintiff that can be fairly construed into ratification of the act of Caldwell & Smith in taking out the insurance in the Crescent Insurance Company in his name. It is not shown that he knew of such insurance effected in his name. But it is urged with great ability and force of argument on part of defendant that what the plaintiff did after the fire and after liability of defendant had attached, in conferring with the official of the Orescent Insurance Company with the view of the adjustment of the loss, constituted such ratification, which goes back to the very inception of the contract. The effect of this argument, if sustained, would be to defeat the liability of defendant company after such liability had accrued through the burning of the sugar house, by conduct of the plaintiff subsequent to the fire. We cannot sanction this contention. There was no ratification by plaintiff, of the taking out by the mortgagees of this second insurance, in such way as to make the act of procuring it his act. He did nothing affecting this policy until after the right of the parties had become fixed, and what he then did was merely preliminary to the filing of a claim, which was never filed. Even if he had filed a claim and made proof of loss,'the money could not have been paid to him. By assignment endorsed on the policy, the loss was made payable to the mortgagees and they alone could have collected the money.

If the act of procuring that insurance did not at the time operate to avoid the contract sued on, it could not after the loss have such operation by relation.

Nor can we sustain the last contention of defendant, which is, that in the event the validity of the policy of insurance declared on is maintained, defendant company can only be held liable “ for its proportion of the loss according to the amount hereby insured shall bear to the whole insurance, whether valid or not, covering such property.” In other words, it is insisted that the policy in the Crescent Insurance Company must be taken into consideration in making the estimate of the amount for which defendant is liable. We have already shown that the policies, in effect, covered different interests in the property.

And we understand the rule to be that a provision for apportionment of the loss, where there is no other insurance, applies only to cases where the insurance covers the same interest. If the mortgagor and mortgagee each have separate insurance, covering their respective interests, the condition for apportionment does not apply. Niagara Fire Insurance Company vs. Scammon, Ill. 19 L. R. A. 114; 28 N. E. 919; Fox vs. Phœnix Insurance Company, 52 Me. 333.

The judgment appealed from is affirmed.

ON Application fob. Rbhhahing.

In the mortgage which S. S. Pierce has! granted to Caldwell & Judah on the Magnolia plantation is to be found this clause: “To keep the buildings on said premises hereinbefore mortgaged insured during the existence of this mortgage for not less than six thousand dollars, the premium on which is hereby fixed at the rate of $420 per annum during the existence of this mortgage, the policies to be made payable to the mortgagee.” Then followed a stipulation to the effect that should Pierce fail to take out such insurance the mortgagees were authorized to do so, and the premiums paid by the mortgagees should be held covered and secured by the mortgage.

The fact that the requirement of the act of mortgage was that the insurance thus to be taken out was “ to be made payable to the mortgagees shows that the interest intended to be covered was that of the mortgage creditors in the property. This was an interest distinct from that of the owner. Without that stipulation in the act of mortgage Caldwell & Judah could, of course, have covered their interest in the property as mortgage creditors by insurance. But they saw fit to bind Pierce, in the act, to himself cover their interest by insurance, and to pay the premiums for the same.

They had the right to exact this obligation from Pierce, but this does not militate against the conclusion that the intention of the parties, gathered from the terms of the act, was to cover the interest of the mortgagees in the property.

Subsequently, Cannon, the plaintiff, purchased the plantation at sheriff’s sale. The sheriff sold under a writ of fi. fa. issued on the judgment of Flower & King vs. Pierce. The sheriff’s deed to Cannon, which the latter also signs in acceptance thereof, recites no assumption by Cannon of the Caldwell & Judah mortgage. It states only that Cannon retains in his hands on this mortgage the amount of ten thousand six hundred and thirty dollars, and this sum is made up entirely of the notes yet to fall due secured by the mortgage. No part of it represented, or was intended to represent, insurance premiums present or future.

By this purchase at the sheriff’s sale Cannon did not succeed to all the obligations and liabilities of Pierce, the original mortgagor. Where an owner mortgages his property, agreeing in the act of mortgage to insure the property and make the loss payable to the mortgage creditor, and consenting that the creditor himself effect such insurance at the expense of the mortgagor, if the latter failed to do it, and afterward the property is sold at a judicial sale, and a third person becomes a purchaser, retaining in his hands the amount of the mortgage notes remaining unpaid and not yet due, we do not think the mortgage creditor has the right to take out insurance in the name of this purchaser, making the loss payable to himself — certaiuly not without the consent of the purchaser. Such an obligation to insure, entered into by an owner when effecting a mortgage on his property, is not a covenant or obligation running with the land and binding the purchaser at a judicial sale to take out insurance in his name, or authorizing the mortgagee to do so,

Such a clause in a contract of mortgage is rather to be viewed as a collateral agreement in aid of the execution of the principal contract. It is nota real obligation; it is a personal, movable obligation, one not imposed upon the new owner as a result of his purchase.

We hold, therefore, that in the instant case the mortgage creditors were without authority to take out the policy in the Crescent Insurance Company in the name of Cannon, and that their act can not operate to his prejudice.

The judgment of the court below awarded plaintiff the full amount of the policy of insurance, ten thousand dollars, with legal interest from the 30th day of September, 1895, subject to a credit of six hundred and eighty-six dollars and eighty-five cents, amount paid by defendant to Flower and King on a judgment recovered by them against Clifton Cannon, in which cause defendant company was made party, as garnishee, and condemned to pay.

A review of the testimony herein, on the question of loss and damage sustained, has led us to the conclusion that the judgment below should be reduced from ten thousand to eight thousand two hundred and ninety-one dollars and twenty-five cents, less the credit above mentioned.

It is therefore ordered that the decree hereinbefore rendered by this court be set aside, and it is now adjudged and decreed that the judgment appealed from be amended by reducing the same to eight thousand two hundred and ninety-one dollars and twenty-ñve cents, with legal interest from September 30, 1895, until paid, less the amount paid on the Flower and King judgment — costs of appeal to be borne by appellee- — -and as thus amended the judgment appealed from is affirmed.

Rehearing refused.


source: Caselaw Access Project

author: Miller, J. Breaux, J.

license: Public Domain

text:
    No. 12,304.
    Heirs of Margaret Finn Hennessey vs. James J. Woulfe, Executor.
    On an inquiry into the testamentary capacity as affected by drink the point of time under investigation is, ■when the will is made, if the testator is then soberr the testamentary competency exists. 1 Jarman on Wills, pp. 54,55, 15 La. 88.
    The declaration of inability or ignorance how to write or sign his name, attested to by the notary in his certificate to the nuncupative will by public act, takes the place of the signature required by the Code of a testator who can sign, and the mark of the testator unable, or who knows not how to sign, is unnecessary to such will accompanied with that declaration. Civil Code, Arts. 1579, 1582, 1584; 4 Boilleux, p. 108.
    When the certificate to the will in that form states the request of the notary of the testator to sign, and htr answer that she can not because she knows not how, it imports that her declaration was made to the notary.
    The will fortified by the strongest testimony it is the manifestation of the wishes of the testator, will not be annulled merely because the appropriate phraseology to convey her dispositions is suggested by the notaiy. 4Marcadé,p. 16; 4 Boilleux, p. 99; 82 An. 118, and authorities there cited.
    On Rehearing.

      First — The asserted missing memorandum of the notary taken at the time of the intended disposition of the testatrix affords no ground to annul the will in view of the explanation of witnesses in regard to the note made of these intended dispositions.

      Second — The notary may address a few questions to the testator to develop and: render more clear his expressed will; he may even suggest words that the testator may the better express his intent, but he should guard against any suggestion with the view of influencing the testamentary disposition. “The dictation of the will refers to substance, not style.” Landry vs. Tomatis, 32 An. 113,

      Held — That the dictation was that of the testatrix within the intendment of the articles of the Code.

      Third — The certificate contained the usual statement in regard to the inability of the testatrix to sign, and affords no ground to annul the will.
    The will is sustained.
    A PPEAL from the Civil District Court for the Parish of Orleans, Rightor, J.
    Lazarus, Moore <& Luce for Plaintiffs and Appellants:
    Defects of form in the execution of a will, however trifling, are fatal. C. O. J595; Shannon vs. Shannon, 16 An. 9; Succession of Carroll, 28 An, 891; Succession of Yollmer, 40 An. 598.

      Nuncupative testaments must make full proof of themselves, on their face, and no evidence aliunde can be introduced to support them. Succession of Wilkins, 21 An. 115; Succession of Volimer, 40 An. 597; Succession of Saux, 46 An. 1425; O. C. 1647.
    Under our law and jurisprudence a mark is a signature, and making a mark is signing. Tagiaseo vs. Molinaris Heirs, 9 L. 514; Madison vs. Zabriskie, 11 L. 251; Zachary vs. Franklin, 12 Pet. 159; Bouvier’s Law Dictionary, verbo “ Signature;” 2 Greenleaf on Evidence, Sec. 674; A. and E. E. of Law, Vol. 29, pp. 168, 170, verbo “Wills;” Ibid., Vol. 22, p. 81, verbo “Signature;” Jarman on Wills, Vol. 1, p. 106, Sec. 79.
    There must be an express mention of the declaration of the inability of the testator to -sign, and the will must show affirmatively on its face, without evidence aliunde, that this declaration was made in the presence of or received by the notary. 0. O. 1579; Stafford vs. Stafford, 12 L. 440; Shannon vs. Shannon, 16 A.n. 9; Sue. of Wilkins, 21 An. 115; Sue. of Whittington, 26 An. 89; Sue. Volimer, 40 An. 597; Sue. Mary Carroll, 28 An. 888; Cannon vs. Brashear, 25 An. 668.
    There is nothing on the face of the will to show that the mark made to the will was made by the testatrix. Same authorities cited in paragraphs four and five.
    Nuncupative testament, under both the Common and the Roman law, was an oral testament delivered in the presence of witnesses and perpetuated by their testimony. By reason of gross frauds perpetrated in the dictation of such wills, the statute of frauds and statute of wills were adopted; the former abridging and limiting the execution of such wills and throwing safeguards about them, and the latter abrogating them except in the cases of soldiers and sailors. This abrogation is an express provision of our law. Art. 1576, R. C. C.; A. and E. E., Vol. 16, pp. 1006, 1007, 1008, etc.
    Witnesses to a will are presumed to be intelligent, live human beings, not dummies or machines, and it is presumed and necessary that they will hear, see and comprehend the proceedings. O. C. 1591; Mouton vs. Comeaux, 5 An. 565; Babineaux vs. LeBlanc, 14 An. 789; Breaux vs. Gallussaux, 14 An. 229; Gonzales vs. Gonzales, 13 L. 104; Herbert vs. Herbert, 11 L. 361; Sue. Pedeaux, 22 An. 139; Sue. Dauterive, 39 An. 1092.

      Dictation is used in a technical sense, and means to pronounce orally and as the spontaneous action and judgment of the testator’s mind and will what is destined to be written at the same time by another. Such is the settled definition of the term under our jurisprudence.
    The repetition by the testatrix cf language put into her mouth by the notary, back to the notary from either a written or mental memorandum, and the notary writing the same down, is not dictation under our law or according to the authorities or the jurisprudence of this and our sister States. Hamilton vs. Hamilton, 6 N. S. 146; Langley vs. Langley, 12 L. 117; Bordelon vs. Barron, 11 An. 678; Prendergast vs. Prendergast, 16 An. 219, 220; Sue. Marigny, 16 An. 267; Starrs vs. Mason, 32 An. 8; Landry vs. Tomatis, 32 An. 113; Sue. Chauvein, 46 An. 1415; Sue. Saux, 43 An. 1427; Century and Standard Dictionaries; Bouvier’s and Rapalje & Lawrence’s Law Dictionaries.
    Godden vs. Burke, 35 An. 160, is no authority. In that case the court was divided. Chief Justice Bermudez was of opinion that the repetition by Burke from a memorandum read to him was not dictation. Justice Poché concurred for such reason. Justice Fenner dissented, but stated that the question of dictation was not raised by the pleading, and not an issue. Justices Todd and Levy agreed with the majority of the court, but submitted no separate opinions. On rehearing, Justice Levy having died and Justice Manning having been appointed in his place, the latter, as organ of the court, pretermitting the question of dictation, merely referred in one paragraph to that question, and stated that what was done in the case was dictation, referring to Landry vs. Tomatis. Chief Justice Bermudez and Justice Poché dissented, for the reasons stated by them on the original hearing. Justice Fenner concurred in the decree for the reasons stated in his original dissenting opinion, and Justice Todd concurred with Justice Fenner. Justice Manning pitched his decision mainly on the ground that Burke was mentally sound and of disposing mind. Justice Manning was the only judge, either on original hearing or rehearing, who considered the repetition by Burke from a memorandum as dictation, and even he states that no such issue was raised in the case.

      In Landry vs. Tomatis no memorandum was used, and the facts show that the testatrix was an intelligent woman of business experience, who was simply assisted by one of the witnesses in the selection of technical terms or words in which to express her ideas.
    In the Burke case the memorandum was shown to have been prepared under the careful and intelligent direction of the testator, and the will to have conformed to the memorandum. In this case there is no proof that the alleged memorandum, whether written or mental, conformed to the directions of the testatrix, or that the will conformed to the alleged memorandum.

      Bernard MeCloskey 'for Testamentary Executor, Defendant, Appellee.

      Charles J. Theard for the Little Sisters of the Poor, Legatees under the Will, Appellees.
    Argued and submitted February 4, 1897.
    Opinion handed down March 1, 1897.
    Rehearing refused June 14, 1897.
   The opinion of the court was delivered by

Miller, J.

This is a suit by the legal heirs of Margaret Hennessey, to annul her asserted will in nuncupative form by public act. The grounds advanced in the petition, we understand from the argument in this court, to be confined now to those that deny she dictated the will or signed it in the presence of the witnesses, or that she was in a condition to enable her to make a will, or that the act itself contains the recitals by the notary essential to give validity to acts of last will by public act. The appeal is by plaintiffs from the judgment maintaining the will.

The will assailed bears date the 18th of October, 1894. It was preceded by wills at different periods stated in the will of 1894, to be revoked. In all these wills there are bequests to charitable institutions. In the last will the amounts of previous bequests of this character are changed; one or more are omitted, and in the will of 1894 the testatrix makes provision for other charities not mentioned in previous wills. In one of her previous wills she constitutes three of her relatives her universal legatees; in a like will of later date she omits this residuary provision and names one of them her executor; in her last will, the bequests to charitable institutions being increased, there is no residuary legacy, and instead, of the relative named executor in her previous will, she appoints one of the present defendants, made executor, too, in the will first executed.

The variances in these wills, all made within the year, have been the subject of discussion in plaintiff’s briefs, in connection with the question of the mental condition of the testatrix. As significant on the point, it is brought to our notice she denied in a newspaper publication that she had signed or made any previous wills. Then, too, we have a mass of testimony tending to show the testatrix was addicted to the immoderate use of liquor, and was supplied with it on the morning of the day of the making of the will in controversy. In view of the withdrawal of the attack on the sanity of the deceased, the testimony as to drunkenness, the great age of the testatrix, and tending to show that advantage was taken of her infirmity, must all be deemed to refer to her condition, or rather her capacity as affected by drink. To all this testimony we have given attention. While there is testimony that she used liquor freely, there is also the testimony of a number of witnesses w-ho were brought in contact with her, and the current of their statements is that she was intelligent and entirely competent to manage her affairs. It is true that some of these witnesses saw her only occasionally, others had better opportunities of knowing her capacity, and if drink had destroyed her mind, or affected her testamentary capacity, it is our conclusion it could not have escaped the attention of even the casual visitor.

It will not, however, be contended the excessive use of liquor will, of itself, disqualify the party for making a will. The text writers restrict the inquiry on this point to the testator’s condition when the will was made. The testamentary capacity exists unless the testator “ is so excessively drunk as to be bereft of reason,” and, it is added, “although his understanding is obscured and his memory troubled, yet ho may make his testament.” The testimony in this case, in our view, falls far short of any exigency requiring the application to the full extent of the tests of competency laid down by text writers. Mr. Jarman adds, to avoid a will for insanity produced by drink “the testator must be so excited by liquor, or so conduct himself at the time of the particular act, ás to be at that moment legally disqualified from giving effect to it.” 1 Jarman on Wills, pp. 54, 55 et seq. Our Supreme Court, dealing with the •question at an early period, adopted the same view in maintaining a will. Hart vs. Thompson’s Executor, 15 La. 88. As to age as a disqualification, the language of Chancellor Kent, in reference to a will of a testator between ninety and one hundred years, is quite pertinent, “ the law looks only to the competency of the understanding, and neither age, sickness, distress or debility will affect the capacity to make a will.” 5 Johnson’s Chancery Reports, p. 148, cited by Mr. Jarman. The tenor of the previous wills made by the testatrix carry impressiveness on this branch of this case. While legacies to relatives are changed in amount, those made in one, omitted in another; additions in legacies to relatives introduced in her last will contrasted with that immediately preceding, there is in all the wills an appreciation evinced for the ties of kindred. In the first and last will she names the same executor. In all the wills there is exhibited a strong religious sentiment in her bequests to churches, and the equally prominent inclination to aid public charities is shown from the first to the last will, in which the legacies of this character are so increased as to absorb, we infer, her entire property, explaining the omission of the residuary legacy in one of her wills. The general consistency of purpose, and in the main exhibited toward the same persons and objects, in our view, furnishes no aid to the conclusions of a disordered mind and consequent incapacity for testamentary disposition. W hile we have considered the phases of the discussion on this subject, at last, the controlling force must be given to the direct testimony of the testatrix’ condition at the time she made this will of October, 1894. It is not of ready acceptance that the official charged with the important duty of receiving and transcribing last wills would go through the worse than form of taking the dictation of an intoxicated person. We have gone through the testimony of those whose opportunities enabled them to know her condition when she made this will. Without unnecessary detail, it may be said that testimony establishes she was not intoxicated, but sober. The concurrent testimony of the notary, the witnesses and the executor present at the time, not varied or affected, in our appreciation, by any testimony in the recor'd, is, in our view, conclusive on the issue of sobriety when the will was made.

The nuncupative will by public act must exhibit on its face compliance by the notary with the requisites of the law. Civil Code, Art. 1878. Another contention of plaintiffs is, the will bearing the mark of the testatrix, it does not appear from the certificate of the notary the mark was made by her. The preliminary question is whether any mark at all was necessary. The certificate contains the statement that in answer to the notary’s request for her signature, she declared she was illiterate, did not know and never knew how to write, but would make her mark. It is urged on us that the mark of a party who can not write must be treated as his signature, and in this connection there is an elaborate citation of authority from the decisions of other States, and some drawn from our own jurisprudence. But these authorities deal with contracts requiring the signature or an equivalent. Civil Code, Art. 2234. Whether in a will of the kind under discussion the mark of the testatrix is essential, is to be determined by the articles of the Code dealing with the testaments and with the aid of the authorities explanatory of these articles. In the mystic testament the signature of the testator is exacted, and it is naturally accompanied with the denial of that form of will to those who can not write or sign their names. That will may be written out of the presence of the notary in the presence of the witnesses. There is an obvious reason that will should carry the guarantee of the testatrix’ signature. Civil Code, Art. 1384. In the nuncupative will, under private signature, the provision is, it must be signed by the testator if he knows how or is able to sign, or at least by two of the witnesses, if all of them can not sign, to whom the testator presents the paper with the declaration it contains his last will. Civil Code, Art. 1581. The nuncupative will by public act, the Code declares, “must be signed by the testator; if he declares he knows not how, or is not able to sign, express mention of his declaration and of the cause that hinders him must be made in the act. Civil Code, Art. 1579. The articles of the Code would seem to carry the plain implication that the declaration of the testator of ignorance or inability how to sign takes the place, without any mark of the testator, of the signature required of testators who can sign their names. Undoubtedly, it is usual for the testator to affix his mark when he knows not how or is unable to sign, but the articles of the Code do not embrace the requirement. The obvious conclusion is, we think, that when the signature can not be affixed, the law makes the testator’s declaration of inability, and its cause attested by the notary, the equivalent of signature. This is the conclusion of the French commentators as Boilleux puts it: ‘Si le testateur declare qu’il ne soit ou ne peut signer, le notaire doit faire mention expresse, et cette mention produit le mtme effet que la signature.” 4 Boilleux, par. 974, p. 103. It is pertinent on this branch of the discussion to make allusion to the controversy of the commentator whether any mention of the signature is requisite to be made by the notary, when the testator does sign. ’ Neither our Code or the Napoleon Code includes the signature among the requisites to be mentioned in the certificates. Code, Art. 1578. Napoleon Code, Art. 972. Marcadé and Coin De-Lisle maintain no such meation is necessary. The point is discussed by Laurent with evident leaning to the view of the two first named. Marcadé, 4th Vol., p. 22; 13 Laurent, p. 360. But as we hold no mark was essential, it serves no purpose to continue the discussion whether the certificate should contain any recital on the subject.

It is claimed also that the certificate does not show that the declaration of the testatrix of inability was made and received by the notary. In Shannon vs. Shannon, 16 An., p. 9, the decision turned on the question whether there was any declaration at all by the testator, not whether it was made to the notary. The court held the certificate was insufficient. In the case of Connor vs. Brashear, 25 An. 663, the point was the certificate did not state the presence of the witnesses when the will was dictated. In the Succession of Wilkins, 21 An., p. 115, the will was annulled, because the certificate stated neither reading or dictation in the presence of the witnesses. The decision in Succession of Vollmer, 40 An. 593, holds that the certificate must show the competency of the witnesses. The question here is different from those presented in these cases cited by plaintiff. We have already given the certificate of the notary. It recites the request by the undersigned notary of the testatrix to sign; that she declared in the presence and hearing of the witnesses her inability, assigning the cause that she did not know and never did know how to write or sign her name, but would make hex-mark. Civil Code, Art. 1579. The French authorities dwell on the relation between the request “ interpellation ” by the notary to the testatrix to sign and her answer. The certificate states the question by the notary and the reply of the testatrix — i. e., her declaration of inability. It is urged that, for aught that appears, the declaration may have been made when the notary was no longer in the room. The fair import of the certificate is, we think, that the request to sign was immediately followed by her answer to the notary from whom the request came. In Dalloz and Fuzier-Herman, Codes Annotes,” we find the frequent reference to certificates conveying the declaration of inability to sign by the testator to the notary, couched in language not dissimilar to that of this will. 1 Fuzier-Herman, pp. 35, 36, 39 et seq.

It is strenuously contended this will was not dictated by the testator. By this is meant not that the certificate does not state the dictation, but in point of fact there was none. There is no room for any contention as to the facts connected with this question, and all that is contained in the mass of testimony in the record may be gathered from one, with all sufficient distinctness, without the long repetitions we find from the other witnesses. There are minor points on which the witnesses differ, or in respect to which their statements vary, but there is in the testimony of all the witnesses a substantial concurrence on this subject. It appears that the testatrix, having already executed three wills, conceived the purpose to make that now in controversy. She had announced her design to change her will, and on the day appointed she and the notary went over the will of 1893; she indicated the changes to be made and the additional bequests she proposed to make. We gather from the testimony of the notary he noted her wishes, making the memorandum on the will of 1893 before him, or a separate paper. Then she followed his phraseology in dictating her disposition. It is, we think, the result of the testimony that in this method the notary had come to a full understanding with the testatrix as to the will he has to receive. His statement substantially is, he and the testatrix went over the will of 1893, line by line, section by section, she made the corrections she wanted, and he noted the changes and then proceeded to make the will. From the point in the beginning of the will, “ My name is Margaret Hennessey,” the notary testifies, she commenced to dictate, he asked if she wanted him to assist her in phrasing the will, she replied, she did, and she repeated the phrases with me, she repeated each thing with me.” As another witness, her executor, present when the will was made, substantially puts it, the testatrix, the notary and witness had a conversation before the will was made, she then and there stated the disposition she desired to make, and the notary took it down preparatory to making the w.ll, that is, he made the memorandum; the will of 1893 was read, she stated her wish to make some ( “ a few ”) changes, the notary asked her to give him the idea then, and he took •down the memorandum of the dispositions she intended, then the notary commenced to write the will, requesting the witnesses to pay special attention; when the notary came to the part of the caption, “in the form and manner following,” i. e., immediately preceding “My name is Margaret Hennessey,” she proceeded to dictate to him word for word, as stated in the will, he assisting her in phrasing the will, •i. e., in using language proper in phrasing bequests, and the witness repeats she dictated the will word for word, by repeating the language suggested by the notary. In this method every disposition the will contains was dictated by the testatrix to the notary and written by him, as dictated. We have given attention to the discussion that the memorandum, whether on the will of 1893, or on a separate paper, was not produced, though called for on cross-examination of • the witnesses, and it is claimed there is no affirmative statement that the memorandum conformed to the will, o-r that the memorandum was read for verification, and that there was any memorandum at all is controverted in argument. In •the cross-examination of the. witnesses present when the will was made, there are statements to the general effect they saw no paper or have no recollection on the subject. But it occurs to us the witnesses, wich no functions but to be present and attend to the dictation, writing, reading the will and to sign the act, would not be apt ■to notice, or remember if they noticed, a memorandum or the will of 1893 on the table where the notary was writing. We have before us his testimony he did have before him such a memorandum, or the will of 1893. Standing unimpeaehed and with no interest in this controversy, we must accept his testimony on the point, supported as he is by the testimony of the executor, also present. Nor is it singular, in our view, that the notary should not be able to recollect whether or not the memorandum was on a separate paper -or that such paper, or the copy of the will of 1893 used by him, should not have been preserved with no appreciation, doubtless, on his part, that either would be ever needed. If the testimony of the notary and the executor is not to be disregarded, we must accept that the will conformed to the memorandum. It represented, as they testify, her wishes communicated before the will was written, read to her after, eliciting her assent as the expression of her desires. It seems to us the reading of the memorandum would have added no greater sanction to the will.

The argument for the plaintiffs assails the manner this will was dictated. It was the dictation, it is insisted, of the notary, not of the testatrix, or, as the argument puts it, it is the notary dictating and the testatrix dictating back. There has been a copious citation from the French authorities on this point, all to the effect that the dictation exacted by the law is the free, spontaneous utterance of the testator’s wishes, not the suggestions of others. With some differences in modes of expression, the commentators on the Art. 972 of the Napoleon Code, corresponding with Art. 1578 of our Code, all agree as to the sense of dictation. The requirement of the Code is in the simplest and most condensed language. The nuncupative will by public act must be received by the notary * * * dictated by the testator, and written by the notary as dictated.” Boilleux, perhaps, states the law with precision and fullness equal-to any other write: “Le testament doit étre dicté par le testateur, dieter dans le sens que donne á ce mot par de l’academie, e’est Iprononcer mot á mot ce qui doit étre écrit par un autre. La loi veut faire entendreique le testateur doit exprimer intelligiblement et de lui méme ses dernieres volontées, pour qu’elles soient éerivent par le notaire á mesure de leur prononciation. On ne peut done testa par signe. Ainsi le meut ne pourrait faire un testament par l’acte [public, le notaire ne pourrait valablement copier un projet éerits, bien plus, le testament serait nul si le testateur avait exprimé á volonté par monosylabes sur les interpellations du notaire. Toutes fois le notaire peut addresser quelque questions ou observations; il peut méme lui suggérer le mot propre á exprimer clairement sa pensée, maisil doitse garder de provoquer soit lirectement ou indirectement un acte de disposition.” 4 Boilleux, p. 99; Marcadé, Troplong, Coin De Lisle and the other authorities are to the same effect. The decision of the court in Landry vs. Tomatis, 32 An. 113, gives prominence to a similar passage from Coin De Lisle. The testator can not copy the projet of the will; nor can the testator express his wishes by signs; it must be the dictation of the voice; nor will the law be satisfied if the testator merely responds to the questions by the notary. But within these limits, it is the uniform current of authority that the notary, without inducing, directly or indirectly, any disposition, may suggest the words to properly express the testator’s wishes. In the very early case of Hamilton vs. Hamilton, 6 N. S., p. 146, the court held that a variation in the will from the exact words of the testator would not affect its validity. In Gonzalez vs. Gonzalez, 13 La. 106, a will dictated in one language, translated into another by the notary, and then read, was annulled, because of the absence of dictation in the language it was written; read in the language the testator did not understand, and because the hazards of transformation the words of the testator underwent. In the case of Succession of Marigny, 16 An., p. 267, and in the case of Prendergast vs. Prendergast, 16 An. 219, the reasoning of the court dealing with dictation must be understood with reference to the point at issue, whether dictation of the nuncu-pative will under private signature must be shown, when, under the article of the Code 1581, the will is presented to the witnesses with the declaration the paper contains the will of the testator. In Bordelon vs. Barron, 11 An. 679, the court, discussing the theory on which the law requires dictation, observed, the term implies the independent volition of the testator that the word “ nuncupative ” shows that the laws contemplated the announcement of the testator’s intentions from his own mouth; that the notary is the amanuensis, and if his is the controlling mind originating and preparing the disposition, the will is that of the amanuensis, not the testator. In Langley’s Heirs vs. Langley’s Executors, 12 La. 117, the decision turned on the absence of one of the witnesses at the dictation. In Starrs vs. Mason, the court treating, it is true, with but a slight difference between the testator’s words and those used by the notary, maintained the will, observing that it was the jdentlty of' thoughts not words the law required. In Godden vs. Executors of Burke, 35 An. 179, the case was that of a testator, weak in mind and body, conferring with his counsel in reference to making a will; the counsel prepared a memorandum of the desired dispositions as he understood them, and thereafter the testator, the notary and the witnesses repaired to a room and with no previous conference with the notary or witnesses, in the language of the opinion, the testator with the paper in his hand dictated, in the words given to him by one sitting at his side, every part of the will. The will sought to exclude the testator’s child, and the report of the case informs us was soon followed by the suicide cf the testator. Three of the judges concurred in annulling the will, and one at least was influenced solely on the ground there was no dictation. On the rehearing the will was sustained ; but the question of dictation seems to have been altogether excluded from consideration, the majority conceiving the question was not- at issue. It seems to us that decision can exert no material influence. In the case of Landry vs. Tomatis, 32 An. 113, the testatrix spoke English imperfectly, she perfectly understood the disposition she was to make, but availed herself of the assistance of her counsel. As the court puts it, it is no cause of nullity that a testator, not accustomed to the technical language of testamentary dispositions, has availed of assistance in selecting the words and shaping the phraseology he has immediately dictated to the testator. The decisions we have briefly reviewed, and others cited in support of plaintiff’s case, have had our careful consideration. While text writers and decisions concur in excluding from dictation by the testator bequests that others prompt him to make, and give him the words which he repeats to convey their desires, it seems to us the mere fact that an uneducated testator, without furnishing cause to annul the will, may well use the suitable phraseology furnished by the notary to express the dispositions which the testator himself has resolved upon and desires to have carried into effect. It is undoubtedly better in all cases the words of the testator should be transcribed as they fall from his lips. But the law grants the privilege of the last will in nuncupative form by public act to all, the learned as well as the uneducated. Without some assistance, the ignorant would be seriously embarrassed, if not utterly incapable of executing the will most convenient of all forms to those who can not write.

Our law utterly excludes as causes to annul wills, proof of hatred, anger, or other influences capable of operating on the mind of the testator in directing his testamentary dispositions. Civil Code, Art. 1492. It does require the free dictation of his wishes. We are impressed with the importance of close scrutiny to determine whether the will faithfully represents the testator’s wishes, in all eases where he has been aided by others in that expression. We have weighed with care all the testimony connected with the dictation in this case. In our view that dictation, in all substantial respects, announced the matured purpose of thetestatrix. It would be to strain reason and law, we think, to annul a will couched in legal form, fortified by the strongest testimony as the manifestation of the testatrix’ wishes, merely because the form of words she could not command, suggested by the- notary in the frame of language, expressing the desires of her heart.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed with costs.

ON Application por Rehearing.

Breaux, J.

The legal heirs presented anew the contention that the will was a mere repetition of words by the testatrix suggested by the notary, and not the expression of her intention.

The notary testified that before he received the will he had a conference with the testatrix with reference to this will. She had made a previous will and proposed to make some changes.

With that will before her, the notary and her friend named in both her wills as executor present, she indicated the changes she desired to make. They were noted and subsequently written down in accordance with the purpose manifested by her in the conference with the executor and the notary preparatory, prior to the receiving of the will.

To the same effect as the notary was the testimony of Mr. Woulfe, who was the friend of the testatrix, and the executor of her will.

Great stress is placed in the argument for'plaintiff that a certain asserted memorandum was not produced. Mr. Rouen, the notary, testified he went over the will of 1893 with the.testatrix, line by line, section by section; that the changes were made by her; he does not remember whether he made the correction in the will of 1893 on a separate paper.

In the course of a long and searching examination in which the questions as to the memorandum were repeated with great insistence and nicety of expression, the witness used the words, “ I think,” and at another time in the examination stated that he did not know whether there was any memorandum save that he followed the will of 1883; that he may have noted the changes, in memory following that will; that he may have noted the changes', on the copy of the will of 1893, or on a separate paper.

Testimony of this witness regarding a memorandum to which he says he attached no importance, which was destroyed, he states, as useless, does not, in our view, weaken his testimony that he did note the change in making the new will, nor do we think that it affected the testimony of Mr. Woulfe unfavorably that he could not produce the memorandum or copy of the will of 1893, if the memorandum was made from that copy, if either was left with him. Unless some reason exist to preserve such papers, they are apt to be cast aside. There is no basis for the conclusion that Woulfe had any motive to suppress the paper.

Again, the argument of the plaintiffs deals largely with the testimony of those present in the room when the will was made.

At best, the general tenor of this testimony is that they do not know of or did not see a will or memorandum. Witnesses called to give attention to the dictation and other acts necessary to the testamentary disposition might well be unable to answer positively as to a paper they had no reason to notice or remember.

The conclusion insisted upon by plaintiffs is that there was no memorandum whatever of the testatrix’ intended disposition preparatory to making her will. To accept this conclusion we must discard the positive testimony of Mr. Woulfe and of Mr. Rouen. On this branch of the investigation, whether the testatrix before she began the dictation of the will had fully considered and made known to the notary and Mr. Woulfe her intended disposition, the memorandum or copy of the will of 1893 is not at all essential to the effect of their testimony; that Mr. Woulfe can not put his hand on and produce the memorandum or copy of that will used when the will of 1894 was made; that neither he or the notary can remember or testify whether the memorandum was on the will of 1893 or on a separate paper, or testify to the color of the paper used; that the witnesses to the will itself give no supporting testimony to the memorandum or use of the copy (bub whose testimonyon the subject is only negative, not affirmative) ; that this copy was not used and the memorandum not made, are circumstances neither singly or collectively affording any basis for us to reject the testimony in this record that the testatrix had mentioned and made known to the notary and to Mr. Woulfe the dispositions her will contains.

Again, the will of 1894, in the leading features, is the counterpart of that of 1893, and in some respects similar to that of 1892. While she made bequests to relatives, tbe dominant purpose of tbe testatrix displayed in tbe present will as well as that in contest was to aid charitable institutions.

Tbe law excludes captation. 0. 0. 1492.

But on tbe question whether, the will' is tbe automatic utterance of dispositions procured by those about tbe testatrix, testimony of such promptings may perhaps be in place. It is true tbe argument suggests and tbe will shows that’she [made certain changes, but the modifications can not well be charged to. any influence or suggestion made by the notary or Mr. Woulfe. Her previous wills, in our appreciation, in themselves, furnish confirmation that the present will is the expression of her well formed intentions. With the intended bequests resolved upon as we think the testimony shows, is this will to be vitiated simply and only because of the assistance she asked and received from the notary in the dictation? She used his language in dictating her disposition. With the full understanding of the dispositions she desired to make, h,e penned the dispositions in suitable language, which she dictated word for word to him.

She was a woman of no education, utterly unwilling to trust to her limited power of expression and desirous to exercise the privilege of making a nuncupative will. If was but natural she should seek the notary’s assistance, and if there is no reason to suspect any prompting or influence of any kind exerted by him, the fact that he presented to her the mode of expressing the intended disposition; the dictation by her to him which followed would seem to add to, instead of detracting, irom the dictation. In our view the French authorities, rigid as they are with respect to dictation and other formalities of last will, extend no support to annulling a will because of the aid the testator may have received from the notary in the dictation, when there is no basis to question the dictation came from her intentions.

In our .own reports there are e.xtracts from leading French commentator that must be deemed to exclude an attack merely and only because of the mode of dictation pursued in the case.

The commentator dealing with the assistance the testator may receive from others in respect to his dispositions, before the dictation, adds of pertinence in this controversy: Bien n’epméehe non plus le notaire d’addresser cpielqu.es questions ou observations pour faire développer et rendre plus elaires les vólontés exprimées par le dis- posant; il pent m&me lui suggérer des mots exprimant mieux la pensée; mais il doit se garder de lui suggérer des idées nouvelles.

To the same effect is the other passage in that opinion, that is, in the Landry-Tomatis case, cited infra, from another French commentator.

We have considered all the decisions cited. The most pertinent authority is the case of Landry vs. Tomatis, 32 An. 113. The testatrix in that case was a French woman, whose ability to express herself in English was imperfect. Her will was in English, perfect in form and expression. She was assisted by her counsel. Relative to the strong implication from the decision that her counsel suggested the w’ords she dictated, the late Ohief Justice tersely said:

“The dictation of a will refers to substance, not style. Where it appears the real intent of the testator is expressed, the validity of the will is not affected by the fact that the language used was suggested by another, or that the words by the notary were not identically those of the testator,” and that exposition is supported by the Ohief Justice in half a page of authorities.

The decision sustained the will. We attach no weight here to the other decision, namely, the case of Godden vs. Executors of Burke, 35 An. 160. The will was sustained in that case. We do not deal with other decisions of more remote application. We think that authoiity and reason alike sustain the dictation of the will.

We have given this case on all the other points the most careful consideration. To reopen them would be to restate our original opinion, varied only by the form of expression. The point that the certificate of the notary does not show that she declared her inability to sign and that she did not make her mark in presence of the notary, we think, is answered by the certificate. There was a statement, as required, of her declaration. The authorities cited in this connection, beginning with that in the case of Shannon vs. Shannon, 16 An. 9, where there was no declaration from the testator,, do not support the averment here that the certificate was insufficient.

We have found no ground upon which to base a different conclusion from that heretofore expressed by us.

Rehearing refused.


author: Nicholls, C. J.

text:
    No. 12,500.
    The Equitable Securities Company vs. Silas Talbert; Mrs. Bella Talbert, Intervenor; and Mrs. Bella Talbert vs. W. R. Sutherlin, Clerk, et als. (Consolidated).
    The lawmaker has, in Art. 129 of the Civil Code, provided ametliod by which married women are enabled to waive their rank of mortgage in favor of subsequent mortgages granted by their husbands. Parties can not be permitted to accom* pltsli the same result and to withdraw from a wife the protection which the provisions of that article afford her by having recourse for that purpose to the expedient of causing her to make in a notarial act an unfounded acknowledgment that she had received payment from her husband of paraphernal funds of hers received by him and converted to his*own use, and coupled with said acknowledgment an authorization to the recorder to erase, on the strength of the same, the evidence of her mortgage from the records. The wife is not estopped by such acknowledgment from contesting the truthfulness of the same, and from contesting the erasure of mortgage bond thereon, and she is authorized to introduce parol evidence in support of her contest.
    Action taken by a third person, based upon an acknowledgment by a wife of payment from her husband of paraphernal funds of hers received by him and converted to his own use, and upon an authorization (still unexecuted) of the wife to the ^Recorder, on the strength of that acknowledgment, to erase from the records the ev'denceof the mortgage securing payment to her of said funds contained in an unrecorded notarial act, does not fall under the protection accorded to action taken on the faith of the condition of the public records.
    The transferee of negotiable notes secured by mortgage acquires by the transfer no greater rights through the mortgage than his^transferrer had. A mortgage is not negotiable in the same sense as negotiable notes are negotiable, and the rules governing the equities in matters of negotiable notes have no bearing.
    A wife holding a second mortgage on her husband’s property is not made to yield her rank of mortgage In favor of a third mortgage creditor simply from the fact that with the money borrowed from the latter the husband paid and discharged the first mortgage on the property. Fontenot vs. Soileau, 2 An. 774, and Gate vs. Matta, 7 An. 140.
    APPEAL from the Ninth Judicial District Court for the Parish of De Soto. Hall, J.

      Farrar, Jonas & Krutlschnilt for Equitable Securities Company, Plaintiff, Appellant.

      J. F. Pierson, Elam & Egan and Lee & Liverman for Mrs. Talbert, Intervenor, Appellee.
    Argued and submitted May 12, 1897.
    Opinion handed down June 1, 1897.
   The opinion of the court was delivered by

Nicholls, C. J.

The plaintiff obtained from the District Court for the parish of De Soto an order of seizure and sale directed against certain real estate belonging to Silas P. Talbert in enforcement of notes executed by Talbert bearing mortgage on said property.

Mrs. Bella Horn, the wife of Talbert, intervened in said proceedings. In her petition of intervention she alleged that her husband was indebted to her in the sum of thirty-one hundred and sixty-five dollars and more for paraphernal funds of hers received by him and converted to his own use, the said amounts having become her property from certa’n designated sources; that the evidence of her husband’s said indebtedness to her had been duly and legally placed of record in the office of the recorder of mortgages for De Soto parish on the 23d of November, and by said recording payment of the indebtedness due to her by her husband had become secured in her favor by a general mortgage on all her husband’s property in the parish of De Soto since the date of the same; that said mortgage when it arose was the first mortgage on his property; that it still existed in full force and effect on his property as a first mortgage.

That about the month of April, 1889, her husband proposed to mortgage certain real estate (which she specially described) in the parish of De Soto and on which her said mortgage rested, to the Equitable Mortgage Company, represented at that time in the city of New York by Norman P. Thompson and in Louisiana by William P. Ford, for a loan. That it became necessary for the purposes of her husband and said mortgage company that her legal mortgage should be canceled and erased from the mortgage records in order to give to the said mortgage company a first mortgage on said property — that her husband endeavored to induce her to consent to the •erasure and cancellation of her said legal mortgage on said property, but that she refused — that her husband then by persuasion and marital coercion induced her to go to Shreveport to see William P. Ford, the agent of the company; that she was then and there, on the 27th day of May, 1889, under marital coercion of her husband and fraudulent representations by the said William P. Ford, and in ignorance of the extent of her legal rights and after repeated protests and refusals on her part induced to sign an act before said William P. Ford, who was at the time also clerk of the District Court and ex-officio notary public for Caddo parish, by which it was declared that the said sum due her by her said husband had been paid and by which the clerk of the court for He Soto parish purported to be authorized to cancel said legal mortgage. That said sum due to her by her husband (as was well known to him and to said Ford, the agent of said company) had not been paid — that she repeatedly told Ford at the time that no part of said sums had ever been paid to her by her husband and that no part of said sums had since been paid.

That said sum due her by her husband (as was well known both by her husband and to Ford, the agent of the company) had not been paid. That on the 28th of May, 1889, the deputy clerk of the District Court of De Soto parish, acting upon the pretended authority sOf said so-called acknowledgment and power to cancel, by her, pretended to cancel and erase her legal mortgage for said sums against her husband’s property — that upon the 27th of May, 1889, her husband executed a conventional mortgage on said lands in favor of Norman F. Thompson, the New York agent of said mortgage company, to secure notes or bonds payable to bearer at the office of said company for the sums set forth in the mortgage attached to plaintiff’s petition, and that said mortgage was duly recorded in the office of the Recorder of Mortgages for De Soto parish on the 28th of May, 1889.

That lately the Equitable Security Company of New York, the successor of the Equitable Mortgage Company, claiming to be the holder of several of said notes, and with full knowledge of all the facts above alleged, had obtained in the De Soto court an order of seizure and sale of said lands under said mortgage, under executory process, to pay and satisfy said notes, together with attorney’s fees, and that said lands were then advertised to be sold on the first of February, 1896. That unless restrained by an order of court the sheriff by whom said sale would be made would proceed to pay the proceeds of said land when sold to said Equitable Securities Company, in disregard of her rights and of her legal mortgage on said property for said sums. That the act by which she acknowledged payment; of the said sum due her by her husband, and for which she had a legal mortgage on said lands, and by which the clerk of court is said to be authorized to cancel her legal mortgage on said lands, is utterly null and void and without legal effect, for the reason that the same was untrue in point of fact and was extorted from her by the marital influence and coercion of her husband and in ignorance of the extent of her legal rights and upon the fraudulent representations of said Ford, and for the further reason that she was-not examined by the officers before whom the act was signed separate and apart from her husband, and her legal rights were not explained to her by said officer, as required by law, or by any one' else, and said act did not recite that she was so examined separate- and apart from her said husband, or that her legal rights were-explained to her by said officer, or by any one else. She therefore averred that she was entitled by law to have recognition and enforcement of her said legal mortgage upon said lands for said sums, as the first mortgage upon the same and in preference to the-mortgage of the Equitable Securities Company. That said lands, were the only lands owned by her husband at the time of the execution of said pretended acknowledgment of the payment by her or since, and her said husband did not own at the time of said acknowledgment, nor had he since owned, any other land or-other property subject to mortgage than that referred to. . She prayed to be authorized to stand in judgment and intervene in the pending suit by third opposition; that her husband and the plaintiff in executory proceedings be cited ; that after due proceedings there-be judgment nullifying and setting aside her said so-called acknowledgment of payment and authority to cancel her legal mortgage upon-said lands and annulling and setting aside the said so-called cancellation of her said legal mortgage, based upon said so-called acknowledgment, and that she have judgment reinstating her legal mortgage upon said lands for the sum of thirty-one hundred and sixty-five-dollars as having effect from and since November 27, 1883, and ordering the payment of her said legal mortgage for said sum in preference to the mortgage of the plaintiff for said sum of thirty - one hundred and sixty-five dollars, with recognition of her legal mortgage therefor upon all the lands of her said husband, and particularly upon the property referred to as having effect from and since November 27, 1883. She further prayed that the sheriff of De Soto parish be notified of the third opposition and ordered to hold the proceeds of sale of said property when sold until further orders of the court in said suit, and that upon a final hearing she have judgment decreeing her to be paid in full the amount of her claim,, principal, interest and costs, in preference to the plaintiff.

Mrs. Talbert simultaneously instituted direct proceedings in the District Court for De Soto parish against her husband and the clerk of the District Court for that parish for the annulment and setting aside of the said act of acknowledgment of payment and authorization to cancel her mortgage — for the recognition of her claims against her husband and the mortgage securing the same, and the reinstatement of the evidence of the same upon the records of the Recorder’s office in De Soto parish. By consent cf parties this proceeding was consolidated with and tried with the main suit. The plaintiff in executory proceedings and the clerk of the District Court of De Soto answered by pleading first,, the general issue. The Equitable Securities Company then averred that it acquired the mortgage notes attached to their petition for a valuable consideration in due course of business and before maturity; that is to say, said paper was acquired by it on or about the 23th of November, 1894, since which time it had been the legal holder and owner thereof-. That when it acquired said paper there was exhibited along with said notes a mortgage certificate issued from the clerk’s office of De Soto parish wherein said land is situated, which showed that the notes acquired by it were secured'by special mortgage on the real estate of the maker, and that said mortgage .was the only existing mortgage against said property, and that upon the faith of said mortgage certificates it acquired said notes before maturity for .a valuable consideration and in due-course of business. It denied the existence of any legal mortgage in favor of the wife, or that the same had any existence in point of fact or truth; bnt averred that if she ever had a legal mortgage (which was denied), she on the 27thof May, 1889, before a notary public and attesting witnesses, acknowledged that the same “ had been paid in full,” and “authorized and empowered the eler,k and ex-offioio recorder of the parish of De Soto to cancel said legal mortgage in full and erase the same from the records ” of his office. That at the time it acquired said property it had no knowledge or intimation that the said Mrs. Talbert ever had amy legal mortgage,, or claimed to have any legal mortgage, against the property of her husband; that it acted solely on the faith of the mortgage certificate issued by the clerk, and that if there existed any equities as between the said Mrs. Talbert and the original owners of said paper the seizing plaintiff could not'be affected by any claim now set up by the wife.

It specially denied that W. P. Ford ever acted as agent for it or the Equitable Mortgage Company, or the said Norman F. Thompson, in this transaction, bub specially averred that Ford, in securing the money for the husband, acted as his agent, and was never in any way connected with it in connection with this or any other matter whatever; it denied that Ford ever made any fraudulent representations to the wife to secure the cancellation of her pretended legal mortgage, or that her husband exercised any marital influence or coercion over her or any threats or violence, but averred that the act of date May 27, 1889, was signed freely and voluntarily by her. That at the time said original loan was- made to the husband there existed a special mortgage on said real estate for the sum of eighteen hundred dollars, with" eight per cent, per annum interest from January 1, 1888, which said amount was secured by special mortgage on the property referred to, which mortgage was held by John Shuttleworth, a citizen of Shreveport, which mortgage was superior in rank to that claimed'by Mrs. Talbert; that the amount borrowed by the husband through Norman F. Thompson was paid to Shuttleworth in satisfaction of said mortgage note, admittedly of superior rank to the mortgage now asserted by Mrs. Talbert, and in any event said real estate is bound for the payment of said notes as asserted by plaintiff by preference over the claim now propounded by Mrs. Talbert, on the ground and for the reason that the amount of money borrowed by her husband enured to her benefit, in that it discharged a superior lien to that claimed by her in this suit;- that the identical money so borrowed by the husband was paid by the original lender to said Shuttleworth for the mortgage note referred to, which was canceled, whereby Mrs. Talbert was benefited and whereby the mortgage now asserted by plaintiff became a superior lien upon the property in favor of the holder and owners of the mortgage notes or bonds executed by Talbert and now owned by the plaintiff. The premises considered, both prayed that the claims and pretensions of the wife be totally and wholly rejected.

The District Court rendered judgment recognizing and enforcing the wife’s mortgage against the property referred to for the sum of twenty-five hundred dollars, as having effect from and after November 23, 1883, and ordering that the cancellation of the said legal mortgage on May 28, 1889, by the deputy clerk of De Soto parish be annulled and set aside as having no legal effect; also ordering that the legal mortgage of Mrs. Talbert be reinstated. The judgment further decreed that the mortgage held by the plaintiff in executory proceedings was inferior and subordinate in rank to the legal mortgage of the wife for the sum of twenty-five hundred dollars and ordered that the amount of her mortgage claim for twenty-five hundred dollars be paid to Mrs. Talbert out of the proceeds of the sale of the real estate referred to when sold, by preference to the plaintiff. It further decreed that the wife have judgment against her husband for the sum of twenty-five hundred dollars, with recognition of legal mortgage therefor from and since November27, 1883. It further decreed that the rule sued out be made'absolute — that the plaintiff pay the costs of the intervention and the costs of the rule, and that the husband pay the costs of the main suit against him.

The Equitable Securities Oompany appealed.

On the 27th day of May, 1889, Mrs. Bella Talbert, wife of Silas F. Talbert, and Silas F. Talbert himself, signed the following instrument :

“ State of Louisiana, \
“ Parish of of Oaddo. /
“ Before me, the undersigned authority, personally appeared Mrs. Bella Talbert, wife of and authorized by Silas F. Talbert, residents of De Soto parish, who declared to me that the legal mortgage for the sum of thirty-one hundred and sixty-five dollars in her favor, against the property of her husband as recorded in Book of Mortgages X, page 303, of the records of De Soto Parish, La., have been paid to her in full.
“ She further declared that she does by these presents authorize and empower the clerk and ex-officio Recorder of the parish of De Soto to cancel said legal mortgage in full and erase same from the records.
“Thus done and passed at Shreveport, La., on this the 27th day of May, 1889, in the presence of the attesting witnesses.
“ Bella Talbeet.
“ S. F. Talbeet.
“ Attest:
“A. J. Reynolds.
“ John Shuttlewobth.
“ W. P. FORD,
Clerk and Ex-Officio Notary Public.”

At that time there stood recorded on the books of the mortgage office of De Soto evidence of an indebtedness of thirty-one hundred and sixty-five dollars by Silas P. Talbert to his wife — the said registry carrying with it, as its effect, the placing of a general legal mortgage for the amount stated on the real property of the husband in De Soto parish in favor of the wife.

Upon the next day (May 28) Silas P. Talbert, by notarial act before W. P. Pord, notary, in Caddo parish, executed a number of promissory notes, among which were the notes sued on in this action, and secured payment of the same by special mortgage on certain described property in the parish of De Soto. The notes were payable to bearer, but in the mortgage act they were declared to represent an indebtedness due by the mortgagor to Norman P. Thompson, represented in the act by W. G. Boney. The certificate of the recorder of mortgages, required by Art. 3364 of the Civil Code to have been attached to the mortgage act declaring the mortgages which were inscribed on the object of the contract, was not furnished to the notary.

On the 28th of May the deputy recorder of De Soto copied in full, across the record of the instrument evidencing in that parish the wife’s mortgage, a copy of the act which has just been referred to as having been signed by her the preceding day, in which she acknowledged payment in full of her mortgage and authorized the recorder of De Soto to erase the same from the records, and below the copy wrote:

“By virtue of the above authority, I hereby cancel and erase this mortgage in full, and file said act in my office as my authority for so doing.
“This May 28, 1889.
“ (Signed) W. J. Elam,
Deputy Clerk and Ex-Offieio Deputy Recorder.”

The notes in question passed into the possession of the Equitable Mortgage Company about the 5th of June, 1889. They were deposited by said company with the American Loan and Trust Company on or about the 7th of August, 1889. They were so deposited and pledged as collateral security with the American Loan and Trust Company as trustee for the holders of debentures of the Equitable Mortgage Company. Afterward the New York Security and Trust Company succeeded to the American Loan and Trust Company as trustee and the securities passed to it as such trustee. The Equitable Mortgage Company defaulted on the 1st of September, 1898, on the interest coupons on the debentures for which (among others) the notes were pledged. Thereupon the trustee sold the notes with a mass of other securities to the plaintiff, the Equitable Securities Company. The total amount of notes so purchased amounted to several millions of dollars, and payment for same was made in the debentures or obligations of the'old Equitable Mortgage Company, which had been acquired by the Equitable Securities Company through purchases from the holders thereof. The amount of obligations thus surrendered in payment for the notes so sold was approximately the face value of the notes.

The Equitable Securities Company having proceeded to foreclose the mortgage security, Talbert’s notes held by it was met by the opposition of Mrs. Talbert on the grounds set up in her pleadings.

We think the. evidence establishes the fact that W. P. Ford, the notai’y public before whom was passed the notarial act of acknowledgment of payment and the act of mortgage referred to, was the agent of the lender of the money to Silas F. Talbert, and that Boney, who accepted the money, was a mere formal party to the act. We think it more than likely that the Equitable Mortgage Company, of which Norman F. Thompson was the treasurer, was the real lender. It is claimed on behalf of the plaintiff that the money was lent and the mortgage accepted on the faith of the public records which disclosed that at the time of the giving of the same there was no other mortgage upon the property. The Equitable Securities Company may, prior to making the purchase it did of notes from the trustee, have had before it acertificate from theRecoi’der of Mortgages of De Soto parish that the mortgage held by the Equitable Mortgage Company was the only one upon the property mortgaged; and may have acted, in making its own purchase of notes, to a certain extent on the faith of such a certificate; but the mortgage itself wasnot taken on the strength of sucha certificate, as the wife’s mortgage was still of record in De Soto when that mortgage was accepted. The original parties may have acted in view of the recital of payment made in the notarial act executed the day before and upon a reliance that when that act should have been recorded later in De Soto, and acted upon by the Recorder of De Soto, the mortgage of the wife would be thereby canceled.

It is further claimed by the plaintiff that even if the act o acknowledgment of payment and the act of cancellation would have been for any reason null, void and of no effect as against Norman F. Thompson or the Equitable Mortgage Company, it would have full force and effect in its favor, as it acquired the notes before maturity without notice in due course of trade and for a valuable consideration — that they were third parties holding in good faith and under circumstances such as to cut off all the equities existing in favor of the wife as against the original parties both as to the notes and the mortgage, and that Mrs. Talbert is by her act estopped from contesting its rank of mortgage.

We first direct our attention to the notarial act in which Mrs. Tal-bert acknowledged she had been paid in full the amount of her mortgage. That declaration is at best a statement of fact — a mere admission of a receipt of money which is not conclusive and not binding, if not true — the fact that the receipt is acknowledged before a notary adds no weight to it. Brannon vs. Mesick, 10 Cal. 95. It is open to explanation by parol. Cole vs. Taylor, 22 N. J. L. 59.

As between the husband and wife it can not be pretended the latter can not go behind the receipt and disprove it.

We are satisfied as a matter of fact (in spite of the acknowledgment of Mrs. Talbert) that she has never been repaid by her husband the amount of the recorded claim which she held against him, and that the act before Ford was simply a measure designed by her husband and Ford to obtain a loan without pursuing the formalities required by law, in order to give to the party from whom he was to borrow the money a first mortgage on his property. We think it was likely, from the wife’s testimony, that the husband would have had trouble in obtaining the consent of his wife had he endeavored to ha\ e had her waive her rank of mortgage in favor of the lender by following out the provisions of Art. 129 of the Civil Code. Had that course been pursued she would have had placed squarely and directly before her the nature, character and effect of the act she was called on to sign, and everything points to the course resorted to by Ford and Talbert as having been adopted as an easy and convenient manner of avoiding anticipated difficulties and evading the provisions of the law enacted for the protection of the rights of married women. We regard the two acts before Ford as parts of one and the same transaction and think they should be read and taken together. If Mrs. Talbert (who had been evidently taken to Shreveport in order that the loan to her husband should be consummated) had been a direct party to the act oí mortgage of the 28th of May. and had been caused to make therein the same declaration which she did in the notarial act of the day before, and to give the recorder of De Soto authorization to cancel her legal mortgage from the records of that parish, would Norman F. Thompson (declared to be), the mortgagor in that act, through her participation in the act of mortgage, in that manner have succeeded in .obtaining a first mortgage in the husband’s property? We are of the.opinion that he would not; that he would have had no right to rest upon the verity of an acknowledgment of payment so made; that he would have had to make inquiry and inform himself of the truthfulness of that statement or take the risk of the fact being in reality as it was declared to be. With all the parties present, with a simple legal form leading up directly to the obtaining of a first mortgage (if all parties were in good faith), a turning aside from that method to rest upon a wife’s simple acknowledgment of payment, coupled with an authorization to the recorder of the parish of De Soto to subsequently cancel her mortgage, would have been a palpable evasion of the formalities of law in aid of the palpable object of the parties to obtain a renunciation of the wife in favor of the lender.

We think the parties can take nothing by separating the two acts; their connection is visible and their separation was more likely, as we have said, to have led up to the wife being taken at a disadvantage than had one single act been resorted to.

We were at one time impressed with the idea that as the wife who. had entrusted her paraphernal funds, or the administration of her-paraphernal property to her husband, was authorized to resume it at. will, the husband would be entitled as a correlative right to call for-his protection for- a receipt from, her evidencing that he hadi returned to her all that he had received, and that having in his. possession such receipt he would be entitled, on producing the same, to the recorder, to insist upon a cancellation of the wife’s mortgage; but we are satisfied that the right to a receipt would not carry with it, as a necessary consequence, a right to obtain thereon the cáncellation of the mortgage when one should have been given. The extinction of the mortgage would result from the actual payment of the money and not from a mere extra-judicial acknowl■edgment of payment easily procurable almost at all times by a husband-. The written receipt, as we have said, is a mare inconclusive -admission on which parties have no right to rely when given by a wife to a husband — subjected, as she is, to marital influence, A ■release is something different from a receipt. A release extinguishes a pre-existing right, while a receipt is mere evidence of a fact.

We are next to inquire whether the plaintiff has by purchase of the notes acquired any greater right of protection than Norman F. Thompson had in the premises. Mrs. Talbert does not question the fact that plaintiff has a valid debt and a valid mortgage against her husband and her husband’s property; what she denies is, that plaintiff’s mortgage ranks her own. The original holder of the notes, as we have said, accepted his mortgage, not on the strength of the condition of the public record, as claimed, but on reliance upon an incorrect statement and admission of fact made by the wife The plaintiff had no dealings whatever with Talbert or his wife. Plaintiff holds the mortgage as a mere assignee, and takes no greater rights in the premises, as to the mortgage, than its assignor had. The mortgage is not negotiable in the same sense as negotiable notes are negotiable: and the rules governing the equities in matters of negotiable notes have no bearing. We do not think that our decisions granting protection to third parties dealing on the faith of the condition of the public records reach this case. The record itself would have disclosed the fact that the cancellation, of the mortgage rested upon a mere declaration of the wife that she had been paid, and the execution of the double acts •before Ford, notary, shown thereon, would have exhibited the whole •situation. It has been held that money receipted for, but not in fact paid, might be shown even against an innocent third person who relied upon the receipt without inquiry (Travelers’ Ins. Co. vs. Chappelon, 83 Ind. 429). We think this case is brought fairly within the decision in Luckett vs. The Canadian and American Mortgage and Trust Company, 47 An. 1259. We are of the opinion that Mrs. Tal-bert is not estopped by her declaration made in the act before Ford, nor by the cancellation of her legal mortgage on the records in favor of the plaintiff in this case.

.It is urged by appellant that, even though the legal mortgage in favor of the appellee be held to have always existed on her husband’s property, it should take rank below its own, inasmuch as, with the money borrowed by the husband, a mortgage on the property priming that of the wife was paid and extinguished, and the wife would be, therefore, to that extent benefited. There would be no benefits resulting to the wife from a mere substitution of creditors. No conventional subrogation is claimed to have been made, and no fact has been shown from which legal subrogation has taken place. Appellant’s contention on this branch of. the case is not well founded. 2 An. 774, Fontenot vs. Soileau; 7 An. 140, Gale vs. Matta.

For the reasons herein assigned, it is ordered, adjudged and decreed that the judgment appealed from be and the same is hereby affirmed.

Mr. Justice Blanchard takes no part in this decision, having recused himself. •