author: Breaux, J. Watkins, J.

text:
    No. 11,596.
    Jean M. Begue vs. Mrs. E. A. St. Marc.
    The borrower insured the property mortgaged to secure the debt and in the policy tbe clause was inserted: Loss, if any, pay tibie “to the creditor” as interest may appear.
    The policy was transferred to the possession of the creditor and he continuously, during five years, held possession.
    Five years having elapsed since the maturity of the note; during which time the policy was renewed annually with the clause in question, the note in consequence is not prescribed.
    Subsequent to the five years another policy containing a similar clause was taken out in lieu of the first.
    The order annually given to pay the loss, if any, to the creditor, was an acknowledgment of the debt which had the effect of suspending prescription.
    The possession by the creditor of the policy of insurance of the debtor, duly assigned by the latter to the former, and kept alive by payment of premium, is an acknowledgment.
    The acknowledgment of a debt will interrupt prescription though such acknowledgment be not made to the creditor.

      Watkins, .L, dissenting. — The object and scope of the stipulation in an act of mortgage whereby tne mortgagor agrees to keep the buildings and improvements, subject to the mortgage, insured, until the full and final payment of the mortgage, was to oblige the mortgagor to keep up the mortgaged property to its then standard value as a security for the debt; that in case of loss or damage by fire before the maturity of the note and its payment, the insurance policy would fully guarantee the mortgagee’s reimbursement to that extent.
    The assignment of an insurance policy to a mortgagee is, in no sense, a pledge for the security for the debt; nor is it a contract with the mortgagee only. It is simply intended as a protection of the security of mortgage and not for the payment of the debt.
    APPEAL from the Oivil District Court for the Parish of Orleans. Bightor, J.

      Albert Voorhies for Plaintiff, Appellee:
    Prescription does not run as long as the creditor, with the consent of the debtor, holds the latter’s valuables as collateral security, in pledge or otherwise. And the same is true of anteehresis, and generally of all agreements by which a debtor confers possession of his property to his creditor with the stipulation that the rents and revenues are to be applied to the extinguishment of the debt.
    The transfer of a policy of insurance and its delivery- to a creditor as collateral security is a continuous acknowledgment of the debt.
    The stipulation in a policy of insurance “loss, if any, payable to the creditor,” is a formal acknowledgment of the debt.
    Partial payments made by the husband as agent of his wife is an interruption of prescription.
    As long as the policy is operative between the mortgagor and the insurance company, the pledge in the hands of the mortgage creditor remains in full force; and as long as the latter holds the pledge “there is a standing acknowledgment of the debt,” and as a consequence prescription does not run. O. O., Art. 3520 (3486).
    Elliott vs. Brown, Executor, 13 An. 579, is an able exposition of the law of admission. The court observes: “There must be an acknowledgment of the creditor’s right. O. O. 3486. An admission by the alleged debtor that a third person holds a note against him is not, of itself, an admission that he justly owes to such pei'son the amount of the note.”
    The distinction is an obvious one. In the preceding paragraph the witness, it appears, said “that he has heard George Elliott say, within the last five years, that Bryce Elliott held a note against him, but did not acknowledge that he owed the note, or state the amount; but, on the contrary, stated that Bryce Elliott was largely indebted to him.”
    Civil Code, Art. 3520 (3486) : “Prescription ceases likewise to run whenever the debtor, or possessor, makes acknowledgmeixt of the right of the person whose title he prescribes.” It is the right that must be acknowledged. That is what is decided in the case, Schultz vs. Houghton, 36 An. 407. Said the court: “It is perfectly clear that defexxdant in this case has never-acknowledged the right of the creditor — i. e., the. debt claimed by the creditor; but, on the contrary, declined to acknowledge it, and left it a matter of free and open discussion.”

      Thos. J. Semmes and A. B. Phillips for Appellant:
    The assignment of a policy of insurance to a mortgagee as interest may appear, does not suspend prescription as does a pledge for a debt. 115 Mass. 590; 75 New York, 10; 13 An. 579; 36 An. 407.
    The policy in this case was made in 1880, and the assignment to the mortgagee was contemporaneous with the mortgage, 6th August, 1884. It was kept in force antil 1893 by payment of premiums —who made those payments is not known — that is, whether they were made by the husband or the wife; but whether made by one or the other, they were not payments on account of the debt secured by mortgage, and therefore are not annual interruptions of prescription. Those payments were made on account of a contract collateral to tne debt and the mortgage securing it, but not on account of the debt or the mortgage, for they in no manner diminished the debt or reduced the mortgage.
    The object of those payments was to maintain intact the thing which had been mortgaged to secure the debt. If that thing were destroyed the debt secured by it would remain in full and undiminished vigor, but the thing pledged to secure its payment would disappear. It is therefore plain that the object of the collateral contract is, not to secure the payment of the debt, but to preserve the thing which is pledged to secure the payment of the debt. The thing may be a house mortgaged or a chattel pledged — the collateral agreement is to secure the rebuilding of the house or the replacement of the chattel in case of destruction or loss — and that agreement to rebuild or replace is made with a third person, who contracts with the debtor to rebuild the house if destroyed, or replace the chattel if it perish. Does it not follow that the assignee of such a contract is not in possession of the thing pledged to secure the debt, though he may be in possession of an agreement on the part of a third person to replace the thing pledged.
    It is plain, therefore, that the possession of the agreement to replace the thing pledged is not the possession of the thing pledged, but of another thing, which is not the object of the contract of pledge, but the object of a contract collateral thereto. .
    It is the possession of the thing pledged which prevents the running of prescription, the creditor being in possession has no interest to sue; the pledge is his guarantee, and the debtor by leaving the pledge in his hands recognizes the existence of his debt.
    Such is not the case with a mortgage, because the mortgagee has no possession; but such is the case with antichresis, because the antichresis creditor has possession of the immovable, which is the object of the antichresis contract.
    In its origin the pignus conferred on the creditor the right of retention only, and for that reason to-day possession is essential to a pledge.
    The Supreme Court of Massachusetts say, in the case of Gordon vs. Savings Bank, 115 Mass. 591: “The issuance was for indemnity, to the mortgagee as well as to the mortgagor. To the mortgagee it was protection of the security, not for the payment of the debt.”
    Now, what is the essence of a pledge? The Code, in Art. 8133, defines a pledge to be “ a contract by which one gives something to his creditor as a security for his debt; ” not a security that the thing pledged shall not perish.
    An independent contract by a third person that the thing shall not perish, or if it does it shall be replaced, is certainly no part of of the contract of pledge; it is a distinct and independent agreement, not made by the debtor, but by a third person no party to the contract of pledge, and having no interest whatever in the debt, nor in the thing given to secure its payment.
    The contract of insurance might have been made with the mortgagee only, to indemnify him against loss in case the mortgaged prop - erty should be destroyed.
    Does it make any difference in the nature of the transaction that the insurance is effected in the name and at the expense of the mortgagor? In both cases the nature of the contract is the same; it is an agreement for the preservation of the security, not for the payment of the debt. In the one case the mortgagee insures his qualified right in the property; in the other the mortgagor insures as absolute owner, but, as said, the nature of the contract, for the preservation of the thing, is the same in both cases.

      What is the reason that the possession of the pledgee is considered a continual tacit admission of the debt due to him?
    The possession of the creditor is precarious; by no lapse of time can he acquire title to the thing pledged. The possession being precarious, its continuance is an admission by the owner that the possessor has some right that entitles him to possession, otherwise he would resume the enjoyment of his property. This has no application to a collateral agreement having for its object the preservation of the thing which is in the possession of another, and which in no manner relates to the title or possession of the thing possessed.
    Argued and submitted March 1, 1895.
    Opinion handed down May 6, 1895.
    Rehearing refused June 21, 1895.
    Plaintiff is the holder of a promissory note.
    Against the maker's plea of prescription he invokes the payments made by defendant’s husband, endorsed on the note and signed by him. He represented himself at the time as his wife’s agent.
    The following is the testimony upon the subject:
    Q. Please state in what capacity Mr. Ferrandou appeared and made these payments and signed those documents.
    To which question Mr. Philips in behalf of Mrs. Ferrandou objected unless counsel can show written authority from Mrs. Ferrandou to endorse these papers.
    The court rules that the objection goes to the effect, but that the plaintiff must prove express authority either by parol or in writing. The defendant in rebuttal, on this point, testified that her husband was not authorized to make the payments of interest he had made, nor to sign endorsement on the note showing payments.
    Regarding the policy of insurance invoked by plaintiff against the plea, of prescription, being plaintiff urged an acknowledgment of the debt; the transfer by defendant to plaintiff reads:
    “ New Orleans, La., August 6, 1884.
    “For value received I hereby transfer, assign and set over all my rights, title and interest in and to the within policy of insurance unto and in favor of Jean Marie Begue as his interest may appear.
    (Singed) “ E. A. Ferrandou.
    “To authorize my wife.
    A. Ferrandou.”
    The policy was in force at all times, and plaintiff’s claim referred to as insured.
    Mrs. E. A. Ferrandou annually paid the premiums to the insurance company, to the lfth June, 1893, at which time, desiring to increase the amount of the insurance, she ordered and obtained another policy in which the following was inserted as it had been in the first policy.
    “ Loss, if any, payable to Jean Marie Begue as interest may appear.”
    This new policy in plaintiff’s possession was by him introduced in evidence.
    With reference to the policies the defendant, Mrs. Ferrandou, testified:
    Q. That is your signature to the transfer of the insurance policy to Mr. Begue?
    A. Yes; that is my signature.
    Q. And you were insured in the Home Insurance Company?
    A. Yes.
    Q. That renewal was made by you afterward, in 1893?
    A. No. I went and got another policy, because I wanted to have the policy for more and pay less premium.
    Q,. That is the reason why you increased the policy from $5000 to $5500?
    A. Yes
    Q. But that is your policy of insurance?
    A. Yes; they told me they would send it to me.
    Q. But they never sent it to you?
    A. No; I never received it.
    Q. But you paid for it?

    A. Yes, I paid for it, but they never sent it.
    It is. in proof that she paid for the first and second policies, each carrying plaintiff’s claims as an interest insured.
    As to the second or new policy, although paid for by her it was not delivered to her.

      Plaintiff urges that she could not thus annually retain her policy in torce and order in event of loss by fire, payments to him without acknowledging the validity and binding effect of her indebtedness to him.
   The opinion of the court was delivered by

Breaux, J.

The defendant, the maker of a promissory note, secured by mortgage, alleges that it is prescribed. More than five years had elapsed from its maturity on the day that service of citation and petition was made.

But at the same time that the defendant gave the mortgage, she assigned a policy of insurance to the mortagee, in writing, with the authority of her husband, in compliance with the usual clause of the mortgage act covering such assignment.

This was on the 6th day of August, 1884.

Payment of small amounts of interest was made from time to time, including a payment made of interest on August-6, 1892, at which date payment of the note was extended one year.

With reference to the payment of this interest and extension of payment of the note, the defendant alleges that her husband, who made the payment and obtained an extension, was without authority to represent her and to sign the endorsement written on her note.

On the 14th day of June, 1898, the policy was renewed. This policy, different from what it was with the first policy, was not assigned to the plaintiff on the books of the company, but it contains the provision: “Loss, if any, payable to Jean Marie Begue, as interest may appear.”

The defendant paid for this policy of renewal. It was not sent to her, although the officer at the insurance office had promised to send it to her.

The judgment was pronounced against the defendant. She has taken this appeal.

We will not stop to discuss the question of the assignment of a policy of insurance to a mortgage creditor, and whether or not it should, while in the creditor’s possession, be considered as a pledge, which suspends prescriptions on the note secured by mortgage. But the payment annually by the debtor of premiums to keep the policy alive was, in our opinion, of itself an acknowledgement. The purpose seems to have been an acknowledgment. The contract of insurance was in'possession of the mortgagee. It contained evidence of an agreement that gives rise to one inference only — an indebtedness of the insured to the mortgagee.

Every year that agreement was renewed by renewing the policy. It gave strength and effect to the policy which the creditor held. This annual renewal is inconsistent with the absence of liability.

Insurance is for the mortgagor’s indemnity, as well as the mortgagee.

In securing the latter, it does seem to include an acknowledgment.

It was sufficiently fixed to operate as an acknowledgment by the order, in event of loss, to pay to the mortgagee the amonnt remaining due on his mortgage.

If the property insured had been destroyed by fire the sixth year after the maturity of the note, and while the policy in the hands of the creditor was kept in full force by payment by the debtor of the premium and the renewal of the policy by the company, the standing order that year to pay the losses of the insured should have had full force.

The direction to the company was absolute in terms.

It was a continuing, standing order to pay to the creditor the amount due him.

When a claim is not prescribed the insurance company can not ignore the provision made for the mortgagee’s protection and violate the policy to the detriment of his interest.

An agreement securing such a right is surely an acknowledgment of the debt.

Moreover, the policy was owned by the defendant. She, by the payment of premiums annually, gave it value in the hands of the creditor.

The possession of this policy, kept alive by the debtor “prevented prescription from running in the same manner as in the case of a pledge, prescription does not run as long as the thing pledged

remains in the possession of the pledgee.” Montgomery vs. Levistones, 8 Rob. 145.

It is true that the acknowledgment was not made directly to the debtor, but it is really as complete as if annually the debtor had handed to his creditor an amount to be applied to the insurance of his property and the greater security of his claim.

It is ordered, adjudged and decreed that the judgment appealed from be affirmed at appellant’s costs.

Dissenting Opinion.

Watkins, J.

Executory proceedings were commenced against Mrs. E. A. St. Mare, a married woman, to foreclose a conventional mortgage on her paraphernal property, under her administration, which she had consented to on the 6th of August, 1884, as a security to the plaintiff for the loan of money — she being judicially separate in property from her husband, and the judge of the proper jurisdiction having authorized her to borrow the money.

The maker and mortgagor appeared and enjoined the seizure and sale of her property on the ground that the note and the debt it evidenced had become extinguished by the prescription of five years, and the prayer of her petition, duly sworn to, is that proceedings be perpetually restrained and the note and mortgage be cancelled and annulled.

In answer, the plaintiff, in executory proceedings, alleges that the mortgagor is indebted to him as stated in his petition, and his prayer is that her demand be rejected.

The only question we have to consider is that of prescription.

It is true that there are endorsements on the back of the note which indicate the annual extension of time for the payment of the note; but these are neither signed by the defendant, nor were they authorized by her, and do not, consequently, have the effect of interrupting the current of prescription.

The creditor, however, relies upon the mortgagor’s assignment to him of an insurance policy, covering the buildings on the mortgageed premises, as having effect as a pledge to interrupt prescription.

The policy bears date June 16, 1880, and the amount of insurance is 87000. By successive renewals this policy was kept and continued in force up to and including the 17th of June, 1885.

The loan was effected and the note and mortgage were executed on the 6th of August, 1884, and in the act of mortgage is found the following stipulation, viz.:

And the said mortgagor * * * further declares that she does, by these presents, bind and obligate herself and her heirs to cause all and singular the buildings and improvements on the prop - erty aforedescribed, to be insured and kept insured against the risk of fire, up to their full value, until the full and final payment of said aforesaid promissory note, and to transfer and deliver unto the said mortgagee the policy of insurance,” etc.

In keeping with that stipulation, the mortgagor placed upon the insurance policy the following endorsement, viz.;

New Orleans, La., August 6, 1884.”

“For value received I hereby transfer, assign and set over, all my rights, title and interest in and to the within policy of insurance unto and in favor of Jean Marie Begue, as his interest may appear.

“(Signed) E. A. Ferrandou.

“ To authorize my wife. A. Ferrandou.”

Subsequently, this policy was annually renewed until the 19th of June, 1898, when it was surrendered, and a new one was issued in favor of the defendant and mortgagor.

In this policy is found the recital, viz.: “ Loss, if any, payable to Jean Marie Begue, as (his) interest may appear.”

The foregoing is all the evidence which the record affords in reference to the alleged pledge of the policy of insurance to the plaintiff, mortgagee and payee of the note in suit.

In my opinion, it fails to establish the relations of pledgor and pledgee.

The whole question turns upon the act of mortgage, a stipulation of which obligated the mortgagor to keep the buildings and improvements on the property mortgaged insured up to their full value against loss or damage by fire, until the full and final payment of the mortgage note, and to transfer and deliver unto the mortgagee the policy of insurance.

The evident object and scope of that stipulation was to oblige the mortgagor to keep up the mortgaged property to its then standard of value as a security for the debt; so, that in ease of loss or damage by fire, before the maturity of the note, and its payment, or the foreclosure of the mortgage, the insurance policy would fully guarantee the mortgagee’s reimbursement to that extent.

It is equally manifest, that, in the event no loss or damage should occur by fire, prior to payment of the note, the insurance policy gave no additional value to the property as a security for the mortgage indebtedness.

The assignment is contemporaneous in date with the execution of the note and mortgage, and constitutes a component part of the same transaction. The covenant in the act of mortgage is, that the maker and mortgagor should transfer and deliver to the mortgagee the policy of insurance; and the language of the assignment is, for value received I hereby transfer, assign and set over all my rights, title and interest in and to the within policy of insurance,” etc.

This is the phraseology of an act of sale, and not that of & pledge. It evidences an intention on the part of the mortgagor, to simply carry into effect the covenant of the act of mortgage, to transfer and assign to the mortgagee the insurable value of the buildings on the mortgaged property, so as to put it in his power to save himself, in case of loss or damage thereto by fire, during such a period of time as the note should remain unpaid. Such is the clear import of the words of the assignment, viz.:

“ In favor of Jean Marie Begue, as his interest may appear.”

And it is likewise the clear import of the condition of the renewal policy, viz.:

“ Loss, if any, payable to Jean Marie Begue, as interest may appear."

In the argument of the counsel for the creditor some stress is placed upon this last stipulation, and he points to it as complete evidence of the debtor’s acknowledgement of the creditor’s right, which interrupts prescription. But the testimony fails to satisfactotorily show that the debtor, a married woman, ever authorized its insertion in the policy; or that she was authorized to do so, either by her husband or the judge. The burden of proof is on the one seeking to hold a married woman bound upon a contract, to show by proof that her act was authorized, and that it enured to her benefit, and the evidence in the record falls short of this, in respect to the stipulation quoted from the renewal policy.

The only evidence in the record on this quotation is that of the officer of the insurance company, whose statement is, that it is a renewal of the policy of Mrs. Ferrandou, the defendant. That on coming in from lunch, he found the renewal on his desk and made out the policy accordingly. That the defendant was not present in the office at the time. That upon one occasion he saw Mr. and Mrs. Ferrandou at the office, but he did not know what transpired, as they spoke with the secretary.

The defendant, as a witness, states that she went to get another policy of insurance, because she wanted one for more money and to pay a smaller premium. That the officers of the company told her they would send it to her, but they never did.

! This is all the evidence on the subject, and instead of it making proof of her knowledge or concurrence in the recitals of the renewal policy, it exhibits her utter ignorance of them. That she was neither consulted nor advised in regard to its confection.

It is therefore but reasonable to infer from the evidence that the officer of the insurance company, who caused same to be drawn, simply gave directions that the policy in renewal of the insurance should follow the phraseologv of the policy which was surrendered to the company.

Hence it possesses just the same significance as the original policy and no more.

To have effect as a pledge, the thing given to the creditor must be given as a security for his debt. R. C. C. 3133.

And it has often been held by this court, that “ no prescription runs as long as there is property pledged for the payment of the debt} such pledge being a standing acknowledgment of the debt.” Vide Wilson vs. Bannen, 1 R. 556.

It was held in Montgomery vs. Levistones, 8 R. 145, that “the creditor’s possession of the debtor’s property with the latter’s consent, to pay himself out of the rents, is an acknowldgment of the debt interrupting prescription.”

To the same effect is Scovell vs. Gill, 30 An. 1207. The theory entertained by the court was that “ it prevented prescription from running in the same manner as in case of pledge, (and) prescription does not run so long as the thing pledged remains in the hands of the pledgee.” Ibid.

And in Wilson vs. Bannen it was said that “ as long as the 105 kegs of nails remained in the hands of the owners of the ship as a pledge for the payment of the freight no prescription could run, because the pledge was a standing acknowledgement of indebtedness •on the part of the defendant.”

In Citizens Bank vs. Hyams, 42 An. 729, we said:

“ The possession of the pledge was a constant recognition of the debt, which prevented prescription from ever beginning to run. It is not the contract, nor the act of pledge, that interrupts prescription; but it is the detention of the thing pledged. Such possession is a constant renunciation of prescription every instant that it begins to run.” See, also, Conger vs. New Orleans, 32 An. 1253; Latiolais vs. Citizens Bank, 33 An. 1452; Lackey vs. Macmurdo, 9 An. 18; Citizens Bank vs. Knapp, 22 An. 117; Citizens Bank vs. Johnson & Bogan, 21 An. 128; Police Jury of West Baton Rouge vs. Duralde, 22 An. 107; Blanc vs. Hertzog, 23 An. 199.

From all of thesé decisions we find the essential thing to be a pledge of something by the debtor to his creditor as a security for his debt, and it is the creditor’s possession oí the thing that is thus pledged that is regarded as the standing acknowledgment of the debt, which interrupts and keeps suspended the current of prescription.

While it is true that, as in the case of a Citizens Bank mortgage, the pledge of certificates of stock delivered to the bank, at the inception of the contract, is a pledge which interrupts prescription of the mortgage indebtedness, they are given that effect because they possess in themselves an additional value entirely independent of the security of the mortgage. But it does not follow that the assignment of an insurance policy on the mortgaged premises is such an additional security for the debt, though it be contemporaneously assigned to the mortgagee, and therefore it can not be given effect as a pledge. Indeed, if such an assignment of a policy of insurance (as the interest of the mortgagee may appear in case of loss), is a pledge which suspends the prescription of the mortgage indebtedness, then mortgage notes become practically imprescriptible.

This surely is not the case.

But the assignment of an insurance policy to a mortgagee is, in no sense, a pledge for the security of the debt. Nor is it a contract with the mortgagee only. It is simply intended as a protection of the security of mortgage, and not for the payment of the debt. This principle was maintained in Illinois Insurance Company vs. Fix, 53 Ill. 151, in which the court say:

“ The interest that can be claimed for an assign in such case is that he should stand in the same position as if he had taken out a new and independent policy to protect his own interest as mortgagee.”

The same distinction was taken in Gordon vs. Savings Bank, 115 Mass. 590, the court holding that the insurance policy was for the protection of the security, and not for the payment of the debt. It was collateral to the debt. Money received from the insurance company took the place of the property destroyed.

In that case the court further held, that in case of loss the money could not be applied to the payment of the 'debt secured by the mortgage before it became due without the consent of the mortgagor; and it is equally true that if the note should go to maturity before a loss by fire should occur, the mortgaged property could be seized and sold without any reference to the policy of insurance, the benefit of which would, of course, inure to the adjudicatee without any stipulation to that effect, the mortgagee’s beneficial interest therein being extinguished by the sale' of the mortgaged property.

Such is not the case of a pledge of additional property, as .that of shares of stock of the Citizens’ Bank, as a further security for the debt which is also secured by mortgage. Succession of Thompson, 46 An. 1075.

If the mortgage were permitted to perempt by a failure to rein-scribe it within ten years, it would lose its grasp upon the property, and no longer be available as security to the creditor; and he would, at the same time, lose interest in the policy of insurance.

It has been repeatedly held, in other jurisdictions, that in case the insurance company should exercise the option of its contract and elect to rebuild, or repair the burned buildings, the policy ceases to be a contract of insurance and becomes a building contract between the insurer and the insured, with which a mortgagee has no interest or concern. Henneman vs. Insurance Co., 75 N. Y. 10; Morrill vs. Insurance Co., 33 N. Y. 429; Beals vs. Home Insurance Co., 36 N. Y. 522.

The enunciation of this principle clearly shows that an insurance policy is not, in any sense, a pledge, because it may, after a loss by fire has occurred, be changed to a building contract, at the option of the insured and insurer, without the knowledge or consent of the mortgagee.

In my opinion, there is no hypothesis on which an insurance policy can be held to be a pledge in favor of a mortgagee to secure the payment of his debt.

But independently of that proposition, claim is made on behalf of the mortgagee that prescription of the debt was interrupted by the annua] payment of premiums, thus keeping and maintaining the policy in force, such annual payments being acknowledgments of the mortgage debt. Or, in other words, the payments of premiums was a constant admission of the existence of the debt.

But is that so?

It would seem but reasonable that the premiums should follow the conditions of the contract, and each payment of premiums evidences a new contract of insurance just like the original. Premium is the aliment on which insurance subsists, and it necessarily sustains like relation to the debts as the policy does. Hence, the payment of annual premiums carries no other significance than does the payment of the first one which is acknowledged in the face of the policy. Therefore, if I am right in holding that the assignment of an insurance policy has not the effect of a pledge interrupting prescription, for the same reason payments of annual premiums do not amount to an acknowledgment of the debt which interrupts prescription.

But the contract of insurance and the payment of premiums annually only evidenced relations between insurer and insured, and to which the mortgage creditor was neither party nor privy, the payments having been made to the insurance company, and not to the creditor, if made by the debtor at all.

Thus far, however, the argument has proceeded on the assumption that the defendant mortgagor made those payments in propria persona.

It must be borne in mind that the mortgagor is a married woman, judicially separate in property from her husband. That she executed the note and mortgage with the authorization of the judge of competent jurisdiction. But the evidence shows that the money borrowed was paid into the hands of the husband, and that he appeared annually at the bank where the note was deposited, in company with the mortgagee, and obtained extension of payment annually, and, in evidence thereof, the husband and mortgagee placed their signatures on the reverse of the note.

The evidence also shows that the defendant mortgagor never signed or acknowledged said extensions, and that in so doing her husband did not act as her agent. The note clerk of the bank being interrogated on the question said that he regarded the husband asan honorable man, and relied upon his action as being duly authorized, and when he inquired into the matter, he learned it was too late, the note having become prescribed.

The defendant mortgagor testifies as a. witness that the acts of the husband, in this respect, were not authorized by her, and that in so doing he was not her agent.

Hence, the reasonable inference is that the husband used his own money in paying what is termed small interest,” in order to obtain annual extensions of time for the payment of the principal of the note.

This much seems to be conceded on the other side, inasmuch as it is not insisted in the argument that either the endorsements on the notes or the the payment of small interest” operates an interruption of prescription.

With regard to the payment of the annual premiums, there is no statement of any kind in the evidence, except that of one official of the insurance company, who said, in a general way, that all insurance premiums had “ been all paid more or less regularly,” without specifying by whom the premiums had been paid.

But, inasmuch as the husband received into his own hands the money which was loaned on the mortgage, and annually procured extensions of the note, with the consent of the mortgagee, on the payment of small interest, is it not reasonable that a like provision was made by and between them for the payment of the premiums on the policy which the mortgagee held in possession?

In this connection there is one statement made by the official of the insurance_company which is quite significant. It is exhibited by the following interrogation, viz.:

Q,. You attended to the making of the policy?

A. Yes.

Q. Was that renewal by Mrs. E. A. Eerrandou?

A. It was a renewal of her policy, etc.

The testimony further shows that the defendant was not present at the time, and knew nothing of its preparation. It also shows that" the renewal policy was never sent to her at all, and that, in point of fact, she never saw it.

On the foregoing it can safely be affirmed that there is no proof in the record of the defendant having paid the insurance premiums, and that, consequently, their payment did not operate as an interruption of the prescription of the note.

As the sole question in this case is prescription vel non, can it be supposed that payments of the premiums by the wife would have been left to inference, or suffered to remain in doubt, if positive proof of the fact could have been made?

And, if in fact she had made the payments herself, or by her authorization, would it not have been quite an easy matter for the insurance company to have supplied the proof? Undoubtedly.

The Oode provides that “ prescription ceases to run whenever the debtor * * * makes acknowledgment of the right of the person whose title they prescribe.” R. O. O. 8520.

Can it be correctly said that the defendant, a married woman, has “ acknowledged the right” of the creditor, in view of the proof that is afforded by this record? Certainly not.

In such case the debtor’s acknowledgment must be clearly shown; and in Lackey vs. Macmurdo, 9 An. 18, it was said that “an interruption of a prescription gives a new date to prescription; and as it affects the rights and obligations of the parties, the debtor’s assent to such a charge must be clearly shown.” It is evident that the judgment appealed from is erroneous and ought to be reversed.