text:
    No. 8228.
    Henry M. Isaacson v. Phillip H. Mentz et al.
    The earnings of a married woman in keeping a boarding-house, during the existence of the Community of acquets and gains, fall into and belong to the said Community. Therefore, a transfer of property made by her husband to her, in payment of her claim against him for the restitution of such earnings, is null and void.
    The special mortgage furnished by the natural tutrix in favor of her minor children, does not destroy, but merely restricts the previous legal mortgage.
    APPEAL from the Eifth Judicial District Court, parish of East Baton Rouge. Me Fea, J.

      Henry Avery and 8. M. Bobertson for Plaintiff and Appellant:
    An act of sale without a price must be considered as an act of donation, when made with the formalities required for donations. 13 La. 387; 5 M. 694; 10 La. 90; 2 An. 766; 5 An. 433; 14 An. 710; 15 An. 666.
    The earnings of the wife’s needle, or any other work or labor, belong to the community. 30 An. 171.
    If a disposition is susceptible of two interpretations, the one making it lawful and valid, the other making it unlawful and void, the courts must adopt that interpretation which makes it lawful and valid. 29 An. 234.
    Parties are at liberty to convey their property as they please, and only their then existing creditors, who are injured thereby, can complain. 27 An. 255; 31 An. 799.
    Among creditors the mortgage, whether conventional, legal or judicial, has force only from the time of recording, and as recorded. C. C. 3297; 2 An. 917; 7 An. 533; 23 An. 1Q4,132, 533.
    "When separate hooks for conventional and judicial mortgages were kept, the conventional mortgage should have beon recorded in the hook for conventional mortgages, so that its registry in the hook of judicial mortgages alone gave no notice to third parties. 2 An. 438, 291, 800; 5 An. 154; 6 An. 162.
    The registry of a mortgage specifying no amount, and containing no description of the property mortgaged, gives no notice to third parties. C. C. 3273-75-77; 5 An. 123; 2 An. 917; 23 An. 132; 27 An. 299; 29 An. 315.
    If the administrator or the recorder failed to secure the mortgage by proper registy, they may be held responsible for the neglect, hut this neglect cannot deprive third parties of rights acquired in consequence of such neglect. 28 An. 810.
    "When the family meeting advised an adjudication, and the judgment approved the advice, there resulted therefrom a sale; from the sale a debt; and from this debt a conventional mortgage. 21 An. 644; 5 An, 598; 12 An. 78; 26 An. 144; C. C. 3317 (new).
    The tacit mortgage was only a security for the faithful administration of the tutrix; C. C. 8282; 10 An. 429; so that when the minors, after emancipation, neither alleged nor intimated thero had not been a faithful administration, and the evidence shows a faithful administration, and that there remained property of the succession largely in excess of their claims, they were without right to proceed against the individual property of the tutrix to the prejudice of hor judgment creditors.

      Herron & Beale for Defendants and Appellees:
    Eirst — The profits resulting from keeping a boarding-house by the wife, not separated in property from her husband, belong to the community, and do not enter into the formation of the paraphernalia. R. C. C. 2402; 8 An. 96; Prondergast vs. S,haw, R. C. C. 131; 3 Rob. 329; 16 An. 212.

      Second — A transfer of property by the husband to the wife, unless it is to replace alienated paraphernal funds or property, is absolutely null. R, C. O. 2446, 1790; 1 An. 302; 2 An. 483; 4 An. 65; 5 An. 600; 14 An. 609; 15 An. 317, 491; 18 An. 27; 23 An. 491, and many other decisions.
    Third — The effect of giving a special mortgage is not to destroy the general mortgage, but only to restrict it; and the general legal mortgage continues to exist from its original date on the property specially mortgaged. 15 An. 417, and authorities therein quoted; 23 An. 544; Marcado continued by Pont, vol. I, paragraphs 553, 554.
   The opinion of the Court was delivered by

Todd, J.

The plaintiff obtained a judgment against Widow Louisa Mentz in March, 1868, for $1138, with interest. This judgment was recorded soon after its rendition, in the book of judicial mortgages iu the office of the recorder of the parish of East Baton Kouge.

To enforce the judicial mortgage claimed to result from the inscription of this judgment, he instituted this, an hypothecary action, against the defendants, who are the children of Mrs. Mentz, the judgment debtor, and in possession as owners of the property, against which the action is directed.

The plaintiff alleges that the property in question was acquired by Mrs. Mentz in 1859, by an act of transfer from her husband, Bhillip Mentz, then living, and that it passed into the possession of the defendants subject to his said mortgage.

The defendants, in their answer, deny that this property was ever acquired by their mother, Mrs. Mentz, but aver that it belonged to the community that existed between their father, Phillip Mentz, deceased, and their mother; that the alleged transfer, under which it was claimed the property was conveyed to her, did not and could not confer on her any title thereto, as shown by the face of the act; that the said property was placed on the inventory of the succession of their deceased father as community property; was subsequently adjudicated to their mother, and afterwards acquired by them at sheriff’s sale, made under a judgment obtained by them against their mother as tutrix; that their mortgage rights on the property thus acquired by them antedated the judgment of plaintiff,and were fully preserved; and that the proceedings by which they became owners of the property were all in conformity to law.

From a judgment in favor'of the defendants the plaintiff has appealed.

We arc of opinion that the transfer made by Phillip Mentz to Mrs. Louisa Mentz, his wife, in 1859, passed no right or title to her in or to the property purporting to be therein conveyed. The act purports to be a sale, and is so termed by the parties thereto. The price in consideration of the alleged sale, as declared in the act, is $8000, being for “ money made and earned by her (Mrs. Mentz) by keeping a boardinghouse on her own account in the town of Baton Rouge,” and received by the husband and applied to his own use.

Inasmuch as there was a community of acquets and gains existing between this husband and wife during the entire term mentioned, the earnings referred to fell into the community and were subject entirely to the charge and disposition of the husband, as head of that community, for which he was under no obligation to account to his wife. C. C. 2402; 8 An. 96.

This sale or transfer did not fall within the exceptions provided by article 2446 O. C. to the general rule, declaring the nullity of contracts entered into by the husband and wife during marriage.

C. C. 1790; 1 An. 302; 2 An. 483; 4 An. 65; 5 An. 600; 14 An. 609; 15 An. 317, 491; 18 An. 27: 23 An. 491.

The counsel in his brief argues that the act in question was a donation, from the fact that, after stating the money consideration of the sale or transfer as shown above, an expression occurs in the act of a further purpose or desire to secure a living to his wife and children. This did not, of itself, change the character of the act from what the parties termed it, and make it a donation, of which it lacked the essential elements. Though called a donation in his argument, the counsel did not so treat it in the pleadings. It is there termed by him a transfer.

Did any doubt exist as to the nature of this act, so far as it can affect the plaintiff, that doubt would be removed by the subsequent proceedings of Mrs. Mentz with respect to it. Upon the death of her husband, in 1864, so far from claiming the property in question as her separate property by virtue of this transfer, she permitted it to be placed on the inventory of his succession, an inventory made on her own application, as belonging to the succession. And, subsequently, in a petition signed by her personally, she declared it to belong to the community that had existed between her and her husband, and caused it to be adjudicated to her as community property, in which her minor children were interested, under the provisions of article 343 (338) C. C.

These proceedings, showing a complete disclaimer of any separate rights or interests under the act referred to, and amounting, on her part, to a repudiation of the act, took place long anterior to the date of plaintiff’s judgment, and are equally as conclusive against him as against Mrs. Mentz, his debtor.

The defendants claim this property under a sheriff’s sale made on the 2d of March, 1872. This sale was under a judgment in favor of her children, Phillip H. and Celina Mentz, against their mother as tutrix, for $9870 57, and which recognized a legal mortgage in their favor, to date from the 7th of September, 1864; and the sale did not satisfy the judgment.

It is also shown that the evidence of the legal mortgage thus recognized by the judgment, being an abstract from the inventory of their father’s succession, had been inscribed in the proper mortgage book on the 24th September, 1869, and reinseribed on the 21st of April, 1879, and the mortgage thereby preserved.

It is, however, contended that the adj udication made to Mrs. Mentz in the proceeding referred to, and the special mortgage provided thereunder, destroyed the general mortgage in favor of the minors.

The regularity of this adjudication is attacked, and upon the face of the papers its validity appears questionable, but whether valid or not, the special mortgage provided under such proceeding does not destroy, but merely restricts the previous legal mortgage.

Guillett et al. vs. Jure, 15 An. 417.

Troplong, Hypotheque, vol. II, No. 644.

¥e see no error in the judgment appealed from, and it is, therefore, ■affirmed with costs.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 8191.
    S. C. Prothro et al. vs. J. E. Prothro et al. D. R. Carroll, Warrantor.
    The statutory prohibition against purchases by administrators of successions, of the property thereof, is in favor of the creditors and heirs; and, therefore, the nullity of such purchases is not so absolute that they cannot he ratified or acquiesced in by the interested parties.
    APPEAL from the Eleventh Judicial District Court, parish of Natchitoches. Pierson, J.

      J. F. Pierson and J. H. & M. J. Cunningham, for' Plaintiffs and Appellants:
    IPirst — The law does not require an allegation of value in a suit for a specific thing. C. P. 172, § 4. The affidavit of the party of the value of the object demanded is sufficient to support the jurisdiction of the court. 30 An. 798; 29 An. 41; 28 An. 303, 644; 27 An. 503; 15 An. 661; 12 An. 59; 8 An. 92.
    Second — The want of jurisdiction rations personae cannot be plead after answer filed. 31 An. 89, and authorities there cited.
    Third — A suit by the heirs under their hereditary title against a stranger to the succession for the property of the succession in Ms possession, must he brought in the courts of ordinary jurisdiction, although such stranger may hold under a publio probate sale thereof, and the court of ordinary jurisdiction has the power to pronounce on the validity of the probate proceedings under which such stranger claims to hold the property. Such an action in revendication is in no sense a probate matter. 31 An. 183; Choppin vs. Forstall, 28 An. 305; O’Donogan vs. Knox, 11 L. 338; Kachal vs. Kachal, 1 K. 116; 17 L. 15.*
    fourth — An administrator is prohibited by law from purchasing the property of the succeusion in Ms charge; and this rule of law is founded in the hallowed orison “Lead us not . into temptation," and is intended to prevent the administrator Irom placing himself in a position in which his own personal interests must necessarily conflict with his duty under his appointment. The rule is founded in public policy and intended to maintain the integrity of mortuary proceedings in courts. Michaud vs. G-irod, 4 How. 552; Wormley vs. Wormley, 11 Wheat. 441; Davoue vs. Fanning, 2 John, ch. 252; 1 Gillman, 614; 5 McLean, 4; 36 111. 344; 12 Indiana, 266; 7 How. 260; 31 Barbour, 458; 11 M. 298; 4 H. S. 267; 9 L. 47, 354; 14 L. Ill, 121; 2 An. 780; 15 L. 394-7; 5 An. 568; 24 An. 492; 6 L. 415; 15 An. 581; 9 An. 232; 23 An. 519; 27 An. 241, 491; O. C. 11, 19.
    Fifth — There is no distinction in law as to vitiating a contract between malum in se and malumpro hibitum. 2 B. & P. 374; 3 Verji, 612; 2 Pet. 539; C. C. 1895, 2031.
    Sixth — Courts are instituted to carry into effect the laws of a country, and cannot become auxiliary to the consummation of violations of law. There can be no civil right where there can be no legal remedy, and there can be no legal remedy for that which is itself illegal. Bank of U. S. vs. Owens, 2 Pet. 538; 1 B. & P. 264; 11 Wheat. 272; 3 McLean, 276, 212; 17 How. 232; 18 How. 289; Cotton vs. Brien, 6 B. 217; Davis vs. Holbrook, 1 An. 176; Bank of New Orleans vs. Frantum, 22 An. 462; La. State Bank vs. H. O. Hav. Co., 3 An. 314; 7 Loullier, Ho. 553; 8ib. Ho. 515; Dnnod Prescription, part 1, oh. 8, p. 47; Parsons on Contracts, vol. 1. p. 456.
    Seventh — A thing that is absolutely null cannot be ratified; nor can an act made or done in contravention of a prohibitory law, be authorized or ratified, or confirmed. The law may not be then infringed covertly. Deouir vs. Le Jenne, 15 An. 571; Bradford vs. Cook, 4 An. 231; Hoggatt vs. G-ibbs, 15 An. 700; Marcade, vol. 5, p. 344; ib. 93; ib. 90; Boileux & Poucelet, Cons. Art. 1338, C. H.; Demolombe, Contracts, vol. 6, Ho. 729; Bogron, C. C. Art. 1338; 3 Bin. 352; 48 Min. 553; 44 H. Y. 237; 43 DI. 123; 7 S. and B. 230; Solon, Sec. 1, § 3, Ho. 334, p. 258; Brumele Ed. 1836.
    An act of ratification or confirmation in order to be valid or binding must contain a mention of the motive of the action of rescission and an expression of the intention to supply the defect on which that action is founded. C. C. 2272; 15 An. 571; Bogron. C. C. 1338.
    Eighth — An act made without consideration can have no effect. C. C. 1893.
    Hinth — Becognitive acts do not dispense with the exhibition of the primordial title. C. C. 2271; 22 An. 521.
    Tenth — The prescription of ten years will not apply to an administrator assuming to purchase and in possession of property of the succession in violation of the prohibition of the law. His title was not legal nor his possession in good faith. 23 An. 520; 4 B. 201; C. C. 3479, 3486, 3487.
    Eleventh — The equity of restitution only exists between the original vendor and vendee. A vendee in a subsequent sale of the property cannot plead the want of restitution from the first vendor to his immediate vendor. His remedy must be enforced through his action in warranty.
    Twelfth — Where those against whom the want of restitution is plead have received no benefit from the parting with the property, no equity exists against them to pay anything for the restitution.
    Thirteenth — Where the amount claimed in restitution plead as a bar to an action to recover property back, is not definitely fixed and settled, the want of a previous tender of restitution will not bar the action. Stafford, Ex., et al. vs. M. H. Twitohell et al. (not yet reported), decided by Justice Fenner in February, 1881.
    Fourteenth — Bestitution only applies to the rescission of sales voidable. It does not apply in a case where the object of the suit is to have a decree of the court that no such sale as im the case of simulation and the like.

      Watkins & Scarborough and Wm. H. Jack for the Warrantor, Appellee :
    First — Original jurisdiction in petitory actions must be tested by the alleged value of the property sought to be recovered, and a petition wholly wanting in this particular cannot be supplemented by affidavit, or otherwise, to invest jurisdiction-such a suit is nothing; and nothing else can be made of it. C. P. 88,126, 384; 15 An. 120; 21 An. 755.

      Second — The modern doctrine, allowing plaintiffs to file in the Appellate Court affidavit as to value to vest jurisdiction in the Supreme Court only obtains when the pleadings in the court of original jurisdiction allege value, and allege it in such way as to authorize it as a more specific averment of value — it cannot he extended to supply defects in the pleadings in the court of the first instance. 22 An. 25, 272; 30 An. 799; 21 An. 448; 20 An. 574; 30 An. 604.
    Third — In actions to annul sales of succession property bought by administrators, the suit should be brought against the administrator, at his domicile, as to such nullities as have arisen subsequent to the order of sale whilst proceedings anterior to it should be attacked in the court which decreed the sale. 13 An. 189; 31 An. 182.
    Eourth — A petitory action is emphatically a demand based upon an existing title, and is not the proper proceeding to recover property alienated at judicial sale, such a proceeding involves a collateral attack upon title resulting from judicial proceedings, and is not ■ warranted by the rules of practice. (Dunn vs. Bird, 29 A. O. B.); 18 An. 196; 19 An. 353; 23 An. 331: 27 An. 365; 13 Ba. 431; 10 B. 396; 2 An. 467; 19 An. 354; 23 An. 175, 772, 499, 46 and 331; 24 An. 227; 25 An. 639; 29 An. 698.
    Eifth — Judicial title and uninterrupted tenure for ten years bars the recovery of the original owner. C. O. 3478; 19 An. 353.
    Sixth — This particular action is barred under the law and the facts of the case hy five years. C. C. 3543; 21 An. 505, 584.
    Seventh — Minors who are advised of their rights, and who are in condition to assert them, loose their right so to do when they suffer four years to elapse after attainiDg majority without taking action to recover their property that has been alienated; their silence, inaction and presumed acquiescence in the salo for this period estopped them from complaining, and the more especially if they themselves have done acts conformably with such transfer. 3 M. 457; 8 M. 632; 10 M. 735; 11 M. 717; 6 B. 606.
    Eighth — Minors who, alter attaining majority, have expressly ratified irregular or void sales, and who have received and receipted for the price, cannot be heard to gainsay their own acts. 3 An. 328; 6 B. 606; 2 An. 648; 25 An. 486; 16 An. 135; 3 An. 536.
    Eiuth — In suits to annul or avoid judicial sales, it is settled doctrine that the plaintiff, as a condition precedent to the institution of the action, must restitute or tender reimbursement of the amount of the price inuring to his benefit; and this rule of equity and fair dealing is made applicable to minors by express and positive provision of the Code; it is the putting in mora without which the action is premature; it is the sine qua non, without it there is no suit. 21 An. 383; 24 An. 324; 28 An. 854, 651; 29 An. 536; 26 An. 188, 446; 28 An. 269; 30 An. 302; 8 An. 191, 123; and 31 An. 893.
    Tenth — Pending administration, heirs are without right of action to recover, for themselves, property sold at succession sales. C. C. 1037, 1049; C. P. '974, 982; 14 An. 641; 24 An. 280.
    Eleventh — There is nothing in the law prohibiting heirs from selling their rights in a succession to the administrator, or to any one else. The prohibition against the administrator’s buying is made in their interest and for their protection, and is not intended to trammel their wills and judgments, and make that a curse which was intended as a blessing; and, further, they have the unqualified, inherent and indefeasible right, after majority, to ratify the administrator’s purchase of succession property, whether made by them to him, by conventional sale, or where he acquired at public sale with or without their knowledge or concurrence. So far as the policy of the law is concerned, they are perfectly free to do what they please with that which is their own. 10 M. 726; 6 B. 606; 6 Ef. S. 21; 2 An. 648; 25 An. 486; 3 An. 328.
    Twelfth — The purchase of succession property hy an administrator is not an absolute nullity, such as results from an act in dorogation of law, made for the preservation of public order and good morals, hut it is relative, and may he avoided or ratified, as the parties in interest may elect. C. C. 1790; 9 An. 216; 16 An. 135. This rule is common to all onerous contracts, without exception.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a petitory action, in which the plaintiffs seek to be decreed the owners by inheritance of certain real estate in the possession of defendants. They charge that the latter claim title from one Boult, but that he never acquired the ownership of the property, for the reason that, when it was adjudicated to him at the probate offering in 1856, he was the administrator of the successions of their father and mother, was incapacitated by prohibitory law from purchasing any effect thereof, and that the pretended adjudication thereof was an absolute nullity.

The defendants answered, claiming title from one Carroll, who had acquired the property at a judicial sale thereof under execution in his favor against Boult. They called Carroll in warranty, who first opposed a number of preliminary defenses, and finally upheld the validity of his title and pleaded prescription.

The heirs of Boult, made parties, pleaded the general issue.

From a judgment rejecting their demand, the plaintiffs have appealed.

Although the syllabi of the briefs, present fourteen points on behalf of plaintiffs and .twelve on. the part of defendants, we think it necessary to pass upon one only,’ which appears decisive of the controversy.

The voluminous record discloses, as salient facts, that the plaintiffs are the only descendants of their father and mother, who left a considerable estate, heavily encumbered, and which was in charge of Boult as administrator; that, with the previous authority of two of the plaintiffs, one of whom was of age and authorized by her husband, and the other had been fully emancipated, and contingent on a valid divestiture of the rights of the third heir, who was at the time a minor, Boult agreed to purchase all the succession property, on assumption of all the debts strictly due by the estate, and on payment to each heir, of $23,000; that on the 8th of July, 1856, Boult became the adjudieatee; that the two heirs first mentioned and a family meeting on behalf of the minor, whose deliberations were homologated, ratified the sale; that subsequently, Boult settled with the three heirs, the third having become of age, and gave them money and property in payment of the amount agreed upon; that afterwards Carroll, a judgment creditor of Boult, seized the property in dispute, became the adjudieatee thereof, on the 23d of February, 1869, and in 1873 and 1876 sold it to the defendants, in whose possession it has since remained.

This suit was brought in February, 1879, nearly twenty-three years after the adjudication to Boult, after his death and after the destruction by fire of the court-house of Winn parish. Fortunately copies had been retained by Boult of many of the important documents in evidence in this case.

The plaintiffs claim, that the adjudication to Boult, in 1856, is an absolute nullity, which cannot be ratified.

In support of that position, the learned counsel who represent them have referred us to many authorities, which have received our careful attention. Ear from questioning, we formally admit their correctness in the cases in which the rulings were made, but we do not think that they are entitled to application in a controversy like the one at bar.

The nullity charged, although one of public order, was established for the benefit of creditors and heirs, but was not absolute so as not to be susceptible of being waived or ratified by those in whose favor it was created.

We bear no complaint from any creditor, and the heirs who raise their voice against the sale cannot be heard, as they have formally acquiesced in and ratified the sale and received therefrom the #69,000 stipulated in their favor, which they have not offered to return.

12 L. 122; 3 An. 536; 9 An. 216; 16 An. 135; 4 Toull. 553; 7 Toull. 561, 8 n. 518; Dunod Prescr. part 1, ch. 8, p. 47; 3 Delvincourt, p. 66, 126; Rogron, C. N. 1596, Locré 4, 195, 149; Duranton, 16 n. 138; Duvergier, Vente, n. 194; Troplong, Vente, 1, p. 260, n. 481.

We find no error in the judgment complained of.

It is, therefore, affirmed with costs.

Mr. Justice Levy recuses himself, having been of counsel.


text:
    No. 8221.
    M. Dreyfus, Executor, vs. Richardson & May.
    A creditor of tlie heir of an estate, to whom the latter has granted a special mortgage upon the property thereof, cannot proceed via executiva and have that property seized and sold, while the succession, of which it forms part* is still under administration, so as to atrip the Administrator of the possession necessary for a liquidation of the affairs of the estate.
    APPEAL from the Eighth Judicial District Court, parish of East Carroll. Montgomery, Judge ad hoc.

      F. F. Montgomery for Plaintiff and Appellant:
    An executor in undisputed possession of real estate belonging to the succession he is administering should enjoin the seizure of such real estate, when threatened for the debt of a third person. C. P. Arts. 303, 398 and 399; 6 IT. S. 311.
    In such case, it is not necessary to wait until an actual seizure is made, but he may enjoin to prevent the property from being seized and taken out of his possession. 6 IT. S. 311.
    He can and should enjoin against any act which would work an irreparable injury to the heirs and creditors of the succession.

      W. G. Wyly for Defendants and Appellants:
    First — An heir may sell or mortgage his residuary rights in a succession. See Smith & McKenna vs. Edwin Charles, 27 An. 503; 30 An. 1067; 31 An. 741; Tugwell vs. Tugwell,. 32 An. 849.
    Second — The holder of such mortgage title may foreclose the same, notwithstanding the succession is still under administration.
    Third — The dative executor, representing the succession, cannot enjoin the sale of the heir-ships, because he is wholly without interest to interfere with the vendication or revendication of these residuary rights, which form no part of the estate committed to his care.
    Fourth — As a third party, without interest, the dative executor of James H. Wilson can raise no question touching the disposition of the heirships thereof, bought by Frank Wilson and by him hypothecated to secure the notes sought to be foreclosed. See the cases collated in Hennen’s Digest, page 1123, sec. 12.
    Fifth — It is premature for a third party to enjoin a writ until a seizure is made, or some of his rights actually assailed; he cannot enjoin the clerk from issuing the process of the court.
    Sixth — The highest damages will be awarded where no legal grounds are shown for the injunction. 11 B. 486; 2 An. 360; 5 An. 155; 8 An. 457; 10 An. 412, 570; 12 An. 88, 168, 193, 237; 14 An. 116.
    Seventh — The fees of an attorney may be allowed as special damages. 5 L. 246; 2 L. 102; 141 An. 333.
   The opinion of the Court was delivered by

Bermudez, C. J.

On the first of May, 1878, L. E. Bolt assumed to sell to Frank Wilson, for $30,000, all and singular his undivided interest in and to the lands and real property belonging to the estate of James E. Wilson, deceased, acquired by him from James B. Wilson, Jr., one of the heirs of the latter, and from Lula B. Farish. another heir of the same person. The act contains a description of the lands and real estate in question.

In order to secure the payment of the notes issued to represent the price, vendor’s privilege was retained on what was sold, and a mortgage was consented on the same object, and besides on the undivided interest of the purchaser, also an heir, in and to the described property.

.At.the maturity of one of the notes, for $10,000, the defendants instituted executory proceedings, averring that the plaintiff herein was the dative executor of Frank Wilson, who had since died, and asking that said property be sold to satisfy his claim, in capital and interest, and further praying for all necessary orders and for general. relief. Upon the petition, accompanied by the note and act of sale and mortgage, the court made an order granting the prayer, and ordering that the mortgaged property be seized and sold for cash, etc., to pay petitioner.

Thereupon, a notice was issued by the clerk of the court to the dative executor, in the usual form, with the admonition that, if within three days the claim be not satisfied, the mortgaged property would be seized and sold according to law.

Within the delay,, M. Dreyfus, who is also the dative executor of James H. Wilson, sought and obtained an injunction, to prevent the execution of the order of seizure and sale, on the main ground, that the property described in the proceedings and against which the writ is directed, belong to the succession of James H. Wilson, and is in his possession and control, for the purpose of the liquidation of the affairs thereof, and that the pretended sale thereof by Holt to Frank Wilson, or by other persons to Holt, was illegal’ null and void, and is not sufficient to base the executory process upon. He concluded by praying that the property be decreed to belong to the succession of James H. Wilson and to remain in his lawful possession; that the order of seizure and sale be declared illegal and null; that the injunction be perpetuated, and that there be judgment against Richardson & May for costs of the proceeding.

The defendants answered, averring absence of right or interest in M. Dreyfus, as dative executor of James H. Wilson; setting forth the validity of their claim and security; and praying for a dissolution of the injunction, with damages against the principal and surety on the bond.

The case was tried. From a judgment dissolving the injunction, as having prematurely issued, and refusing damages, both parties have appealed.

A good deal has been said and written, touching the right of the heirs of James H. Wilson to sell to Holt the interest which it is alleged they have, and of Frank Wilson to have affected the interest which it is said he has.

Whether they had or not the right to do as they have done, whether the defendants be or not creditors of Frank Wilson’s succession and have or not the security which they claim to have, is not at all the question decisive of the case, although it may be considered as raised by the pleadings.

It is worthy of note that M. Dreyfus, who is the dative executor of both Frank Wilson, the son, and of James H. Wilson, the father, is not a party to'the present suit, as he distinctly appears therein only as dative executor of James H. Wilson. The defendants have not brought him as dative executor of Frank Wilson. So that, on the one hand, he has no right to speak and does not utter a word on that last capacity, and on the other, no judgment can be rendered recognizing the validity or declaring the nullity of the claim and mortgage on which the executory proceedings issued.

Going to the length, however, arguendo, that James H. Wilson had left but one heir, and that the latter, being of age, had borrowed money and, to secure the payment of it, had mortgaged, not his interest in this and in that piece of real estate, composing in part the succession aceraing to him, but the entirety, as a unit, of his right of inheritance or of his interest in his father’s succession, the question which arises is:

Whether the holder and owner of such claim and security, however legal the same may be, can proceed via executiva and have the property composing the security,.seized and sold, while the succession, of which that property forms part, is still under administration, so as to strip the succession representative of the possession to which he would otherwise be entitled for a liquidation of the succession affairs ? •

The law negatives the question.

It is manifest that what the heir himself could not do, his transferee, or creditor, cannot do.

It is settled by adjudications as numerous as mile-stones on the highway, that, as long as the succession of the ancestor is under administration for the purpose of paying debts and legacies, if there be any, the- heirs cannot dispossess the succession representative without first tendering the amount necessary to pay the charges of the succession.

It is optional with them to do so or not, but they cannot take away the seizin without complying with this essential prerequisite.

B. C. O. 1671,1678, 1679, 940, 941; 5 L. 106; 5 An. 645; 12 An. 611, 864; 14 An. 14; 13 An. 582; 2 An. 923; 21 An. 278; 24 An. 270; 25 An. 56, 220; 27 An. 503; 29 An. 347; 30 An. 93, 128,1067; 31 An. 493; 32 An. 849; No. 8180, not yet reported.

In the case of Deblieux & Co. vs. Hotard, 31 An. 194, the Court, Spencer, J., said:

“ The substance of the motion is to take the property out of the hands of one officer, the executor, and to put it in the hands of another officer, the sheriff.
It is manifest that, until said’ succession is administered and its debts and legacies paid, the executor cannot be compelled to surrender the property or any part thereof.
It. is equally manifest that until said succession has been partitioned among the heirs or their assigns, no specific sum or thing can be turned over to Joseph Hotard, much less an undivided tenth of an aggregation of things. What authority or mission have the executor of the deceased and the creditors of one heir to ascertain, fix and determine the amount or things to be turned over to that heir in a proceeding to which the other heirs are not parties ?
If, therefore, the plaintiffs have by their garnishment made a valid seizure (upon which we express no opinion), they can suffer no injury by the property being left in the hands of the executor, to be by him administered under supervision of the court, to 1he end that the debtors’ interest therein may be ascertained, fixed and determined. If the seizure is valid, it is not, nor is the privilege resulting therefrom, impaired by leaving the property where it ought to be, in the hands of the executor. No irreparable injury can result therefrom.”

The record shows that in this case the succession of James H. Wilson is under administration. It does not show that James H. Wilson, Jr., Lula B. Parish and Prank Wilson, were the only heirs of James H. Wilson, and that the defendants, who claim through them, have ever tendered to the dative executor the amount necessary to discharge the debts and legacies, if any, burdening the estate of James H. Wilson.

We attach no importance to the statements made on behalf of the defendants, that they have not sought or in any manner pretended to interfere with the administration of the succession of James H. Wilson, or with the corporeals thereof in charge of Dreyfus, executor.

The order made by the court in the petition for executory process, is that the property be seized and sold; the notice served on the dative executor is, that unless the amount claimed be paid, the property will be seized.

The dative executor of James H. Wilson had a right to apply, when he did, for an injunction to prevent the issuing and execution of the writ. Had he not acted as and when he did, the three days would have gone by, the writ would have issued and the sheriff would have proceeded to its execution and consummated the same, by taking into his possession the real estate described in the proceedings. He would have been as uninformed as we are of the number of heirs left by James H. Wilson, and his duty would have been to dispossess the dative executor, under the order of the court, under the writ and in presence of the silence and, as it were, the acquiescence of that succession representative. 6 N. S. ■311; 2 An. 293; 4 An. 169; 6 An. 129°; 10 An. 723; 13 An. 582; 21 An. 149.

Had not the fiat of the judge ordered and the notice announced the ■seizure of the property, and had the defendants signified to the executor that no seizure would take place, quite a different case would be presented.

We have studiously avoided expressing any opinion on the validity of the claim and security asserted by the defendants, for the reason that we do not consider 'that the parties contradictorily with whom the matter could be adjudicated upon are now before us.

It is, therefore, ordered and decreed that the judgment of the lower court be reversed, and proceeding to render such judgment as •should have been rendered,

It is ordered, adjudged and decreed there be judgment in favor of plaintiff only so far as to decree that the injunction herein issued remain in full force and effect as long as the succession of James H. Wilson shall be under administration; that, in other respects, the petition be dismissed; and now, considering the demand of defendants,

It is further ordered, adjudged and decreed that all their rights, if any-, to the claim and security set up by them, be reserved, and that their prayer for damages be denied.

It is further ordered that the defendants and co-appellants pay costs in both courts.

On Application for a Rehearing.

It is claimed that we fell into an error when we stated that both parties had appealed.

To establish this complaint, the learned counsel for the defendants states that his clients were the only appellants; that the plaintiff failed to prosecute and abandoned his appeal, having filed no transcript in this Court.

In verification of those statements, the counsel has made affidavit since the decision of the cause, and calls our attention to the facts sworn to by him, as also to the certificate of the clerk of this Court, which is to the effect, that the transcript in this case was filed, and that the deposit for costs was made by the counsel.

Had the filing of the transcript been a qualified one by the counsel for the defendants and appellants, for their exclusive benefit, and in no way for the advantage of the plaintiff, or had the affidavit and the certificate now before us been previously seasonably submitted, or even had our attention been called to the fact proposed to be proved, during the argument of the cause, contradictorily with the counsel for the plaintiff, we would have given the matter our consideration, and would have determined whether the plaintiff was or not entitled to an amendment of the judgment; but nothing of the kind was done. The transcript was filed without any qualification, and the case was argued and submitted without any notice to us.

In the absence of either of those showings, and finding in the transcript a motion of appeal on behalf of plaintiff, and an order granting him both a suspensive and a devolutive appeal, fixing the amount of the bond to be given in either ease; finding two bonds furnished accordingly by the plaintiff; finding the transcript filed at the proper time, in this Court, without any restriction or admonition to the contrary, we were fully justified in considering and declaring that the plaintiff had appealed and had perfected his appeal. We fell into no error. Having, therefore, decided correctly, we cannot admit that we have gone astray, and will not, therefore, recall our ruling on that ground. The objection, even if founded, comes too late.

The next complaint is, that we did not recognize the right of the defendants to seize and sell the heirships of three heirs of James H. Wilson in his succession.

We could not and did not rule on the question, for the plain reason that the representative of the succession of Prank Wilson, an indispensable party, was neither a voluntary nor a forced party to the present proceeding, although he was made such in the seizure and sale case. We have not made the slightest intimation susceptible of alarming any one, to the effect that an administrator can or cannot enjoin the sale of one or more heirships; or that an heirship in and to an entire succession is or not a thing susceptible of sale and mortgage, or that the heirships in the estate of James H. Wilson could or not be sold and mortgaged, separate and apart from the effects of the succession. •

Were the representative of the succession of Prank Wilson a party to this proceeding; were the correctness of the propositions of law contended for conceded, the query, in point of fact, would simply be, whether any heirship was or not sold and mortgaged by the act relied upon; or whether the undivided, undefined, interest or share of one or more heirs, in two specific pieces of real'estate, forming part of the succession assets, was or not what was sold and mortgaged.

As the authors of the defendants have covenanted and have bound themselves, so those holding under them are held.

It is not for us to suggest any mode of relief to the defendants in this case. They claim to be creditors of Prank Wilson. Either their claim is acknowledged by the dative executor or otherwise liquidated, or it is not. If it is, then they can inquire into the affairs of the estate. If it is not, the law points out the remedy to procure a recognition and liquidation. In either case, they surely' can protect and secure themselves against maladministration by the succession representative.

It is singular, however, that they have allowed, or do permit the same person to occupy two antagonistical positions, which may be filled prejudicially to théir interest; but it is not within our power, in the absence of that person as the representative of the succession of Prank Wilson, to pass upon the validity of the claim and security asserted by the defendants, touching which we made ample reserves.

The application for a rehearing is, therefore, refused.


author:
Spencer, J. Todd, J.
     Levy, J.

text:
    No. 6627.
    Louise Angèle de Sentmanat, Wife, &c., vs. Nelvil Soulé. Widow Julien Seghers et al., Appellants.
    On the Motion to Dismiss.
    It is beyond the province of this Court, in construing 'Articles 575 and 624, C. P., (formerly Act of 1843), to strike out of the statute the word “ an ” and insert in lieu thereof the word “ no,” without positive proof of the error, furnished by the original- enrolled bill.
    On the Mebits.
    When the wife, in a suit against her husband for a separation of property, asserts that certain property, acquired in her name, during the existence of the Community, was-bought with her paraphernal funds and is her separate property, the presumption of law is against her and she must rebut it by legal evidence to establish her title.
    The declarations of her husband and of herself in notarial acts, that he received various sums of money for her, and that the purchases made in her name were paid for with her own funds, are no legal evidence of such facts, so far as third persons are concerned.
    When the wife, owning in her own right an undivided half of certain property, buys the whole of said property at a partition sale, one-half will be yet her separate property, bufe the other half will fall into the Community, unless she shows by proper evidence that she paid for it with her paraphernal funds,
    APPEAL from the Fifth District Court for the parish of Orleans. Léaumont, J.

      J. Ad. Hozier for Plaintiff and Appellee.

      G. U. Schmidt for Appellants.
   On the Motion to Dismiss.

The opinion of the Court was delivered by

Spencer, J.

On the 7th March, 1872, plaintiff took a final judgment by default against her husband, the defendant. The service of the citation was made on the defendant in person. No notice of this judgment was ever given to the defendant, though it was for an amount from which an appeal would lie.

On 28th February, 1877, (nearly five years after the date of the judgment) Widow Seghers and others, alleging injury to themselves as creditors of Nelvil Soulé, applied for and obtained an order of appeal from said judgment. Plaintiff moves to dismiss the appeal as coming too late, and after legal delays had expired.

Art. 575 C. P. declares: “If the appeal have been taken within tea days, not including Sundays, after the judgment has been notified to the. party cast in the suit, it shall stay execution,” etc. So Art. 624 declares that judgments subject to appeal can only be executed “ after ten days* counting from the notification which must be made to the opposite party,” etc.

It is, therefore, clear and indisputable that the delay for appeal runs only from the day the party cast is notified of the judgment against him, oris legally presumed to have notice thereof. If Nelvil Soulé, therefore, was entitled to a notice of the judgment, and is not within that class presumed by law to have that knowledge without formal notice, then, as no notice was ever given him, he could have appealed, and so could his creditors, exercising his rights, on 28th February, 1877.

The plaintiff’s counsel argues with much force that where the defendant has been served personally with citation, he is not entitled to notice of judgment. The Act of 1843 (p. 40) amending Arts, 575 and 624 of C. P., provides that, "Whenever an answer has been filed in a suit in which the defendant has had personal service made upon him to appear and file his answer, or when a judgment has been rendered in a case after answer filed by the defendant or by his counsel, the party cast in the suit shall be considered duly notified of the judgment by the fact of its being signed by the judge.”

Plaintiff insists that that act contains a manifest misprint. That it should read “Whenever No answer has been filed” by a defendant who has been personally cited, “ or when a judgment has been rendered * * * after answer filed by defendant or his counsel," then the party cast is considered to have been duly notified by the fact the judge signing the judgment. Counsel urges that, as printed, the act provides for two cases, which are in fact identical, to wit: 1st, where an answer has been filed;” and, 2d, “when judgment has been rendered after answer filed.” To say the least, the first clause is surplusage, for the case there provided for, is clearly embraced in the terms of tho second clause, as the greater includes the less.

But be this as it may, it is beyond the province of this Court to strike out of the statute the word “ an ” and insert in lieu thereof the word “ no,” without positive proof of the error, furnished by the original enrolled bill, which was no doubt destroyed with the State House at Baton Rouge, and therefore, not now obtainable.

The charge that the two cases provided for in the statute are in fact and substance but one, would not justify us in the interpolation of one word and the expunging of another, thereby making the statute convey a meaning directly opposite to that which it now conveys. It seems that the Legislature has lately had its attention drawn to this matter; for by Act No. 24 of 1876, p. 50, approved March 2d, it is provided that where defendant has had citation served on him personally, no notice of judgment is necessary. Of course that statute cannot have a retroactive effect, and deprive appellants of an appeal taken within twelve months after its passage. By the previous law, the appellants had twelve months from service of notice of judgment within which to appeal. No part of this delay had run when the Aot 24 of 1876 was passed, dispensing with notice of judgment in cases where citation is personally served. Prescription of appellants’ right of appeal began to run, then, only from date of the Act 24 of 1876, and was not complete when the appeal was taken February 28th, 1877.

The motion to dismiss is therefore overruled.

On the Merits.

The opinion of the Court was delivered by

Todd, J.

The appellants, judgment creditors of Nelvil Soulé, defendant in this case, have appealed from a judgment obtained against him by his wife, the plaintiff in the case, wherein certain property situated in the city of New Orleans, described in the record, was adjudged to be the separate and paraphernal property of the wife.

The appeal is taken by the appellants under the provisions of article 571 of the Code of Practice, who, though no parties to the suit, allege that, as creditors of the husband before judgment, they have been aggrieved by the judgment, and in their petition charge that'it was rendered by consent and collusion of the parties, and is null and void, and that the property declared by the judgment to belong to the wife, was really the property of the community, and liable for the debts of the same.

They seek by this appeal, which is one of the modes expressly provided by law, to have this judgment annulled. C. P. 608.

The plaintiff in her petition alleges in substance, that since her marriage with her husband she acquired, by inheritance, various sums, amounting in the aggregate to $19,229 84. That this money had been invested by her in the purchase of real estate in the city of New Orleans. Alleging the embarrassed condition of her husband, she prayed for a separation of property, a dissolution of the community of acquets and gains, and a recognition of her title to the property mentioned and fully described in her petition.

The husband was cited, but did not answer, and judgment was rendered- against him by default in accordance with the prayer of the petition.

The judgment was rendered on the following evidence:

1. A notarial acknowledgment of the 3d of August, 1869, of the husband, wherein he declared he had received the several amounts that make up the total sum mentioned of $19,229 34, from various sources stated in the act.

2. A supplemental act to the one above mentioned, passed on the 5th of August, 1869, wherein it was declared that, of the sum above mentioned received by the husband from the wife, all of it except §1229 34 had been paid to her by the husband, by investments made in the purchase in her name of certain properties described in the act.

3. An act of sale from Mrs. Allain Eustis to the plaintiff, which recited that the property described in the act had belonged to the plaintiff and Mrs. Eustis jointly, and had been sold to effect a partition, and adjudicated to the plaintiff; and the act was entered into to confirm plaintiff’s title to the undivided half interest of Mrs. Eustis.

4. Acts of sale to plaintiff of certain property, passed respectively on August 4th and 9th, 1869.

In these sales the plaintiff declared and her husband acknowledged that the property was paid for by the wife out of her separate funds.

5. The embarrassed condition of the husband was shown by competent testimony.

The sole question presented in the case is, whether the evidence recited was sufficient to authorize the judgment rendered — whether it established a title in plaintiff to the property, of which' the judgment declared her the owner.

Article 2399 of the Civil Code declares : Every marriage contracted in this State superinduces of right a partnership or community of acquets and gains, if there be no stipulation to the contrary.

Art. 2402: This partnership or community consists of the profits of all the effects of which the husband has the administration and enjoyment either of right or in fact; of the produce of the reciprocal industry and labor of both husband and wife, and of the estates which they may acquire during the marriage, either by donations made jointly to them both, or by purchase, or in any other similar way, even although the purchase be only in the name of one of the two and not of both, because in that case the period of time when the purchase is made is alone attended to and not the person who made the purchase.”

Art. 2405: At the time of the dissolution of the marriage all effects which husband and wife reciprocally possess are presumed common effects and gains,” etc.

From these provisions of law it results that when a wife, in a suit against her husband for a separation of property, asserts that certain property acquired during the existence of the community is her separate property, the presumption is against her, for the time of the acquisition creates the presumption that the property is not hers but belongs to the community. She may rebut this presumption by showing that the funds with which the property was acquired were her separate funds, which never came under the administration of her husband.

The simple declarations of the wife, made in acts of sale with the acquiescence or acknowledgment of the husband, are surely not of themselves sufficient to overthrow the presumption to the contrary, which the law has so explicitly declared. Yet, such is the character of evidence, and the only evidence that was offered on the trial of the cause to support the title of plaintiff to all the property claimed by her (with the exception hereafter mentioned), save the notarial acknowledgment of the husband of his indebtedness to her, unsworn' to, and which was evidently intended only, as appears on the face of the act, to serve, by its record, as evidence of the wife’s mortgage.

Article 2427 B. O. O. declares:

The wife must petition for the separation of property, and it can only be ordered by a court of justice after hearing all the parties.
“ Every voluntary separation of property is null, both as respects third persons and the husband and wiEe between themselves.”

In construing this article, in the case of Jones vs. Morgan, 6 An. 632, this Court said:

“We consider this article as imposing on the judge the duty to require legal evidence of the facts alleged, and not to receive in place of it agreements of parties or their counsel, under which the decree of separation would, in fact, amount to nothing more than a voluntary separation.”

We do not consider that the declarations in the acts referred to, that the property was acquired with the wife’s funds, relieved her from the burden of proving that fact aliunde.

See, also, Huntington, Curator, vs. Widow Legras, 18 An. 126.

Pearson vs. Ricker, 15 An. 119.

Clark vs. Norwood, 12 An. 508.

Fisher vs. Gordy, 2 An 762.

It has been held that a judgment rendered on the answers of the husband, under oath, on facts and articles, showing his indebtedness to the wife, was an absolute nullity as to all persons except as between the parties, and that this nullity can be urged directly or collaterally by any one who has an interest so to do.

Willis vs. Ward, 30 An. 1284.

We fail to perceive how the extrajudicial admissions of the husband, or his mere unsworn statement, can be considered of more effect than his positive sworn testimony given on the trial of the cause. It falls equally under the legal prohibition against either spouse being permitted to testify for or against each other.

There is, however, one part of the plaintiff’s demand that is not obnoxious to the objectionable proof that applies to the rest of her. claim, as we intimated above; and that exception relates to the plaintiff’s claim to the property at one time held in indivisión between her and Mrs. Eustis, and sold to effect a partition.

It seems to be conceded, and we have no doubt of it, that the plaintiff, before the partition sale, owned in her separate right, by inheritance, one undivided half of this property. Her purchase at the sale in question did not divest her of her title to this half, and transfer it to the community. Such is not our interpretation of the law, and though she failed to show that the other half, purporting to have been acquired by her at the sale, was paid for out of her separate means, that fact does not affect or impair her title to the half that was hers before the sale.

As this judgment was rendered by default, and no opposition was made to the wife’s claim by any one at the time, the necessity for stricter proof might not, from these circumstances, have been recognized. We shall, therefore, reserve her right to establish her title to the residue of the property claimed by her in the suit. The embarrassed condition of the husband proved, authorized the dissolution of the community and separation of property granted by the judgment.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be amended, by dismissing plaintiff’s demand as to all the property claimed by her in her petition, except the undivided half of the property described in the act of sale passed before Stringer, notary public, on the 28th of March, 1866, her title to which half is recognized, and reserving her right to prosecute her claim to the residue of the property described in her petition against any and all persons in any future proceeding, and that, in all other respects, the judgment of the lower court stand affirmed, the costs of the appeal to be paid by plaintiff and appellee.

Chief Justice Bermudez recuses himself in this case, having been of counsel.

On Application eor Rehearing.

The opinion of the Court was delivered by

Levy, J.

We have given our most serious consideration to the application for a rehearing in this case.

We must adhere to our opinion, that the evidence adduced in behalf of the plaintiff, was insufficient, on which to base the judgment in her favor and the recognition of the property (other than her own half of that held in indivisión with Mrs. Eustis) as her separate estate. The reservation of her right to prosecute her claim for the residue of the property, which she claims, in other and proper proceedings, affords her an opportunity of asserting her rights of ownership and all other legal rights, which she may have, and our decree has the practical effect and operation of a nonsuit as far as her claim thereto is asserted in this suit.

The rehearing applied for is refused.


text:
    No. 8215.
    Mary C. Bledsoe et al. vs. Mike P. Erwin et al.
    When a judgment is absolutely null for defects patent on the face of the record, a suit for the recovery of property sold in execution of such judgment, is more properly a petitory action, and not one strictly of nullity, -which, under the law, could only be brought before the same court which rendered the judgment. The demand in nullity, in such oase, is only incidental and does not control the question of jurisdiction. Such an action oí revendication of the property illegally seized and sold, can well be brought before any court of competent jurisdiction. «
    The judgment of the Circuit Court of the United States in Louisiana, dismissing the plaintiff’s suit without any reserve for the renewal of the action, is not a judgment of nonsuit: it concludes the parties and constitutes res iudicata whonfinal.
    APPEAL froru the Eighth Judicial District Court, parish of Madison, Deloney3 J.

      Mott & Kelly for Plaintiffs and Appellants:
    Pirst — A judgment is the most solemn act of a court and cannot be created except by the action of a court. An apparent judgment, absolutely null for want of citation, appearance or plea, is no judgment.
    Second — Pleas, like res adjudicata, precluding an examination of the merits, cannot be aided by inference, but must be. established beyond all question. The legal presumption attaching to such an estoppel is of too grave a character to he recognized as resulting from any allegation in which its essential characteristics are not free from all doubt. Where there is doubt, the party against whom the plea of res adjudicata is set up is entitled to the benefit of it.
    Third — Where suit is brought upon cumulated causes of action and relief is prayed for commensurate with all the causes combined, and the court is ratione materia* without jurisdictional competency to take cognizance of some of said causes of action or to afford the relief appropriate thereto, but is competent to take cognizance of other grounds, any finding of issues of fact by the court musthelimitedto facts pertinent to the grounds of aotion upon which it had jurisdiction to pass.
    Pourth — In order to sustain the plea of res adjudicata, the court whoso judgment is pleaded must have had jurisdiction to heap and determine the issues raised by the pleadings.
    Pifth — Legal and equitable causes of action cannot be cumulated in one suit in the Circuit Courts of the United States; and where suits cumulating such causes of action are removed from a State court into a U. S. Circuit Court, such court is without jurisdiction to proceed until the suit has been recast into two suits, one at law, and the other in equity. The petition in the case of Bledsoe et al. vs. Stone et al., removed to the Circuit Court, cumulated equitable and legal rights of action, and the court was without jurisdiction to decide it at all in the form in which it was presented.
    Sixth — If the case had been recast into a suit at law, and one in equity, tbe question of nullity of judgment of the State Court, upon which the case rested, was one tbat the Circuit Court of the United States was without jurisdictional competency to entertain either on the law or equity side; andits judgment, therefore, cannotsustain the plea of res adjudicata.

      H. F. Simrall and J. T. Coleman on the same side:
    The action of nullity in the Louisiana practice is a wise and salutary substitute for tbe purposes of a bill in chancery under the common law system; the object- of both being the same — to displace and vacate judicial proceedings, which culminated in a pretentious title against the true owner.

      When cumulated with a petitory action, the essential rights of the plaintiffs are predicated on the nullities of judicial proceedings and sale, which become and are the essential and controlling features of the suit.
    The parties litigant, before and after its removal to the Federal Court, so regarded and treated this suit. The allegations in the plaintiffs’ petition, the pleas and answers of the defendants, distinctly raised and put in issue the validity of the judgment and the sale. The court also so treated it.
    The judgment of the Circuit Court shows conclusively that all the issues of facts were considered and found by the judge in favor of the defendants. It thus appears by the record, which is incapable of denial or disproof, that the Federal Court did entertain and decide all the issues of fact, which embraced the nullities alleged and decided.
    The only criteria of jurisdiction are the allegations of the plaintiffs, the subject matter of the suit, the parties and the judgment prayed. And the only criteria oí what was embraced and concluded by the judgment is the scope and range of facts and subjects put in issue by tbe pleadings.
    The Federal Court is incompetent to review, correct or annul a judgment of a State Court.

      u When a limited tribunal exercises a ’jurisdiction over a subject which does not belong to it, its decisions amount to nothing and does not create the necessity for an appeal or writ of error, and such a defect in the sentence cannot be cured even by the appearance of the parties.
    To produce the effect of res judicata, the sentence must be given by competent tribunal. It must be a final termination to tbe matter in litigation and it must be certain. The want of either of these requisites is such a defect as to render the sentence null and void, and this defect is called a nullity. ”
    It would be against good conscience to consummate the ruin of a widow and her children, by the misinterpretation oi the facts and the laws, and thus give to spoiliation the further sanction of judicial authority.

      Farrar & Spencer for Defendants and Appellees:
    First — A judgment between plaintiffs’ and defendants’ vendors, may be pleaded by defendants as res judicata, in bar of a second suit by plaintiffs against him for the recovery of the same property. 3 An. 230.
    Second — A judgment dismissing plaintiffs’ demand without any qualification of language or reservation, such as the ordinary phrase, “as of nonsuit,” when such judgment has been rendered after trial on the issues made in the case, and so stated in the judgment, will be considered final and definitive, and form tbe basis of the exception of res judicata in a second suit between the same parties, on the same subject matter. See Transcript, pages 190-1; 32 An. 898; 8th La. 187.
    Third — In order to annul a judgment rendered by a court of competent «jurisdiction, a direct action must be brought m the court that rendered the judgment. 2 An. 492; 21 An. 165.
    Fourth — The United States Circuit Court has concurrent jurisdiction with the State conrfcsin all suits brought to recover property which had been surrendered in bankruptcy and in the bauds of the assignees. Section 4979 B. S. U. S.; 92 Otto, 180.
    Fifth — A suit instituted to recover a plantation, and the revenues thereof, citing the party in possession, who is a mere lessee, and alleging that defendant holds under a sheriff’s sale made under a judgment which was null and void, and prayingto be decreed owner of said plantation, and that said sheriff's sale and said judgment be decreed null, is a petitory action, and the action to annul is merely incidental.
    Sixth — A suit instituted to annul a will must be brought in the Probate Court; but a suit to ¡recover a plantation, and to annul a will under which the defendant claims the plantation, ás a petitory action, and must be brought in the court of ordinary jurisdiction. 11 L. 393; 1 B. 115;.UK. 249.

      Seventh — The same principle is involved in this suit. Here, the plaintiffs institute suit to recover a plantation and revenues, and prayed to be decreed the owners, and that the judgment and sheriff’s sale, under which defendants’claim be decreed null. It is a petitory action; the question of nullity is merely incidental; and being a petitory action, the United States Circuit Court had jurisdiction on its being removed from the State court. 12 L. 394; 9 E. 191; 11 L. 419.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiffs aver, in substance, that they are the owners of a valuable plantation in the possession of defendants; that the title which these pretend to have is void, the same being a sheriff’s adjudication in furtherance of proceedings under a judgment which is absolutely null for want of a valid citation. They pray for the annulment of the judgment, as also of the adjudication, for their recognition as owners, for the expulsion of the defendants and for the recovery of rents and revenues for many years at $5000 per annum.

In bar, the defense of res judicata is raised. From the judgment sustaining that plea the plaintiffs have appealed.

There is no dispute, that there once was brought an identical suit; but the contention is, that the judgment invoked was rendered by a court incompetent ratione materice, and that it is one of nonsuit only.

It appears the plantation, at the death, of plaintiffs’ author, was very heavily encumbered with mortgage claims; that the creditors, after proceedings via ordinaria, caused it to be seized and advertised, and became the adjudicatees thereof for a great deal less than the amount of their claims.

The "plaintiffs thereafter instituted proceedings before the District .Court of Madison Parish, for an object identical with that in view in the present case. Upon a showing by defendants, the suit was removed to the United States Circuit Court for the District of Louisiana, where it was docketed, tried and decided on the law side. The jury was waived, the judge found the facts in favor of the defendants and dismissed the suit, with costs. No attempt was made to question or disturb the judgment, which, if it be valid, has by the lapse of time become definitive.

The difficulty in the case consists in determining the character of the suit in which the judgment invoked was rendered.

If it was a suit merely for the nullity of the judgment, it was one which could be brought only before the court which rendered that judgment, and which that court alone was competent to decide.

If it was a suit which contemplated another object, and in which the charge in nullify did not necessarily enter, it was a suit which could be brought before any court vested by law with power to determine actions in revendication of real estate and having jurisdiction of the persons. 99 U. S. 80.

It cannot be denied that, if the judgment assailed was one to annul which a valid cause existed, the plaintiffs had a right to bring a proceeding to that end, and that the court which rendered the judgment attacked could, under a proper state of facts and showing, have annulled it, O. P. 606; but, if the nullity charged against the judgment was, as in this ease, founded upon defects in the proceedings, which made the judgment, on its face, an absolute nullity, there was no necessity for an action in nullity, and the plaintiffs might have ignored and disregarded it.

If the charge of nullity of judgment had been coupled with a main and controlling demand, the question of validity of judgment could.be inquired into and determined by any court having jurisdiction of that demand, which was the true or real object of. the suit. 11 L. 393, 419; 12 L. 394; 1 R. 115; 9 R. 191; 11 R. 249; 15 An. 279; 2 How. 619.

If the judgment assailed was, as alleged, an absolute nullity, it could produce no more effect than if rendered by a justice of the peace.

An execution upon it could have been considered as issued without a judgment to support it, 24 An. 253, and, as such, provisionally arrested without affidavit and bond, in the discretion of the court, 10 An. 286; for it is settled by the amplest authority that a judgment rendered against a party who has not been cited and who has not appeared, is an absolute nullity, which can be invoked, not only by such party, but also by any one interested. The case is different where the causes of nullity are latent. In such eases an action in nullity is indispensable.

1 N. S. 9; 8 N. S. 145; 1 M. 220; 6 L. 377, 577; 17 L. 42, 442; 6 R. 592; 11 R. 109; 2 An. 203, 492; 6 An. 565; 10 An. 174, 286; 13 An. 150,374; 15 An. 86; 17 An. 91; 21 An. 27; 23 An. 421; 24 An. 253; 29 An. 647 , 23 How. 132.

A judgment absolutely null for defects patent on the face of the proceedings, need not be adjudged to be such by a formal decree in a special and direct proceeding. Such judgment can produce no effect. Every thing done in furtherance of it is necessarily void. Quod est nullum, nullum producit effeotum. Sublato fundamento, cadit opus. 24 An. 253.

In an action to recover land from one who claims to have acquired it under sueh a judgment, it would not be necessary that the plaintiff should even allude to such judgment. It would bo the interest of the defendant and his duty, should he deem proper to aver title, to set forth and prop his sheriff’s deed with a valid judgment and valid proceedings in execution of it, and thus assume the attitude of a plaintiff in reconvention. Had the judgment, in this case, been as alleged an absolute nullity, the plaintiffs then would have had a right to attack and repel it instantly and collaterally, even without plea. 2 How. 169; 11 An. 546; H. D. p. 1155, see Pleading, V. (c) 1); 2) 1). The plaintiffs could then have done, legally, what they are now doing under warrant of law, namely, charging without plea the absolute nullity of the judgment invoked as res judicata, because rendered by an incompetent court. So that it was superfluous fdr the plaintiffs to have referred to it in their petition; the more so, to have asked its nullity in their prayer. It was probably prudent for them to have done so, to draw in the title of defendants and to have placed them on their guard and prevented a continuance on the ground of surprise; but it was not indispensable for them to have alleged and sought its nullity, as they did, for such errors. We do not consider either the first or the present suit as a necessary action for the action in nullity. The property was the controlling object of the suit; the assaults made upon the apparent titles of the defendants were means to accomplish the result the more effectually. The feature of a suit in nullity was of secondary importance. The prayer for such nullity was an incident of the litigation. The suit was one at law. 10 How. 257.

But, the plaintiffs have themselves impressed upon the suit the unmistakable and indelible character of a petitory action, by proceeding against one in possession as lessee, C. P. 43, and by tryiDg it, as a case at law, before the Federal court. Being such an action, that court had jurisdiction over the subject matter. The parties waived the jury, offered evidence, among which, conspicuous, are found the very judgment and proceedings attacked, which, therefore, came to the view, knowledge and appreciation of the court. They argued and submitted their case. The judge found the facts in favor of the defendants. His finding was a substitute for a verdict. lie dismissed the suit at plaintiffs’ costs, without any reserve for a renewal of the action. U. S. R. S. 4979; 10 How. 257; 92 U. S. 180; 94 U. S. 606; 12 L. 394; 9 R. 191; 11 R. 419; 15 An. 279; 32 An. 898; 16 How. 363; 22 Wall. 42; 10 Wheat. 406.

As a rule, a judgment rendered at law is not one of nonsuit. It always concludes the parties. It is for the plaintiff at common law to nonsuit himself before verdict and judgment. Where he does not do so, and a verdict is given followed by a judgment, and the defendant has not consented to a nonsuit being entered, the judgment is entitled to the same effect as a judgment on the merits for the defendants, and the plaintiff is barred from instituting a new action. The rule is different under our State practice, where the case is tried by the judge alone, who may nonsuit if the plaintiff has failed to adduce sufficient legal evidence to make out his case, but the law provides, however, that if the plaintiff, on a jury trial, allow the jury to withdraw before discontinuing his suit, the verdict shall be binding upon him.

Abbott L. D., see Nonsuit, p. 181; U. S. Dig. F. S. vol. XIII, see Trial, No. 4714 et seq.; Tidd, vol. 2, p. 916; Chitty’s Practice, vol. 3, pp. 910, 784; 16 How. 363. 22 Wall. 42; 10 Wheat. 406; 94 U. S. 606; 11 R. 249; 9 An. 465; L. D. p. 761, (6), (7); 12 An. 197.

It appears strange that, on plaintiffs’ own theory, they did not question the legality of the removal of the suit; that they did not by a re-pleader recast their suit, if it did unite legal and equitable grounds of relief; that they waived the jury to which they would otherwise have been entitled in a suit at law; that they did not take the case on writ of error for review, and have permitted the judgment by the course of time to become definitive and sovereign.

The United States Circuit Court was vested with a jurisdiction both at law and in equity over all the matters involved in the transferred suit. It was competent to determine its jurisdiction over the ease, and, if it assumed j urisdiction, it was competent to pass upon the issues which it presented. It has done so. It has found the facts, it has passed upon the validity of the judgment attacked, and it has decided the controversy in favor of' the defendants. This Court has no power to review the action and test the correctness of the judgment of the Circuit Court. It must and does presume that that Court has made a sound appreciation of the facts and a correct application of the law. Its action is a perpetual bar. 10 How. 257; 94 U. S. 606; 8 L. 187; 12 An. 196; 3 An. 202, 230; 32 An. 898.

Finally. Under any circumstances, the plaintiffs cannot take advantage of their own laches and derelictions and make them grounds for assailing the validity and asserting the nullity of the judgment of the Circuit Court, as, at the worst, that court could only be relatively incompetent.

It does not appear that it would be against good conscience to permit things to remain in the condition in which circumstances and the acts of parties have placed them.

18 An. 280, 507; 8 L. 101; 2 L. 180; 15 An. 273; 1 R. 523; 3 An. 346; 11 An. 33; 23 An. 147, 167.

The judgment rendered by that Court and invoked as res judicata, was properly regarded by the lower court as an insuperable barrier to a renewed assertion of the pretensions set forth in the present proceedings.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be affirmed with costs.

Rehearing refused.


text:
    No. 8083.
    Succession on Mrs. Hannah Newton.
    The claim of the Administratrix for having supported her mother during her lifetime and administered to all her wants, could only be prescribed by ten years.
    APPEAL from the Second District Court for the parish of Orleans. IPissot, J.

      Braughn, Buck & Dinkelspiel and W. O. Hart for the Aministratrix and Appellant:
    First — Where the answer sets up specially the plea of prescription, without any denial, the whole claim is thereby admitted, and proof offered in support does not affect the admission. 7 it. 468; 18 An. 161.
    Second — Where a party for answer specially pleads prescription, the onus is on him to substantiate his plea on the trial of the cause. 15 An. 332.
    Third — The prescription of one year is only applicable to claims for board in private houses, where it is made a business to furnish board at a fixed prioe, and does not apply where a person may occasionally have hoarded; a fortiori not to the case of a person who never kept boarders in its literal sense. 22 Am. 316; Marcadé Prescription, 212, 213.
    Fourth — Nor does the prescription of three years apply to the last two cases above alluded to. 22 An. 316, Succession of Ann Frye, Opinion Book 53, folio 107.
    Fifth — Where repairs are made on a honse for the convenience of the occupant, or to repair damage done by her, and at her request, and do not improve the property, they must he at the expense of the occupant.
    Sixth — Continuous and frequent acknowledgments of indebtedness prevent the acquiring of prescription

      Fred. Adolph for Opponents and Appellees:
    Where there is neither price fixed by the parties nor one left to the award of a third person named and determined, the agreement wants an essential ingredient to constitute a contract of lease. O. O. 2670, 2071, 2672; 17 An. 22; 19 An. 101; 20 An. 268.
    A claim for rent of an immovable is prescribed by three years. .C. O. 3538; 22 An. 681, 325; 24 An. 73.
    Claims for hoard and lodging are prescribed by one year. C. C. 3534; 2 An. 759; 3 An. 458; 5 An. 599; 3 An. 141; 21 Am. 657.
    Claims for money loaned are prescribed by throe years. C. C. Article 3538.
   The opinion of the court was delivered by

Bermudez, C. J.

The attorney for absent heirs opposes the account presented by the administratrix, a daughter of the deceased, wherein she placed herself as a creditor for 85600 for rent and board.

We do not consider that the opposition really denies the facts giving rise to the claim, but View it as a denial of liability on the part of the succession, particularly as the same is barred by prescription.

7 R 468; 18 An. 161; 15 An. 332.

The facts, that Mrs. Newton occupied premises belonging to the administratrix, her daughter, which weie worth the monthly rent charged, and. that Mrs. Newton was fully provided for by her daughter, who ministered unto all her wants, are established.

The claim for rent is prescribed by three years. B. O. C. 3538; 22 An. 581, 325; 24 An. 73; that for board is prescribed by ten years.

It is not shown that Mrs. Hoffman, the daughter and administratrix, made it a business to keep boarders. R. C. C. 3534, 3544; 22 An. 316; Marcadé, Presc., 212, 213; Succession of Frye, O. B. 53, f. 107. Nemo presumitur donare.

It is, therefore, ordered and decreed that the judgment appealed from be amended so as to sustain the opposition of the attorney for absent heirs, so far only as to reduce the item of $1560 to three hundred and sixty dollars, $360; and the item of $4100 to three thousand dollars, $3000; that the account be amended accordingly, and that so amended, said judgment be affirmed with costs.


text:
    No. 8208.
    The Baton Rouge, Grosse Tête and Opelousas R. R. Co. vs. Louis Kirkland, Sheriff, et al.
    Tli© Charter of this Rail Road Company exempts its property from taxation for ten years after the completion of the road. Tlio road lias never been completed. Tlie property is, therefore, not entitled to the exemption.
    Exemptions from taxation must he strictly construed.
    APPEAL from the Twenty-third Judicial District Court, parish of West Baton Bouge. Cole, J.

      H. M. Favrot for Plaintiff and Appellee:
    First — That plaintiffs’ act of incorporation is a grant made by the State to the Company, having all the attributes of a contract, by which both the grantor and grantee are solemnly and respectively hound. 7 Cranch, 165; 6 Cranch, 87; 4 P. 514; 16 H. 369; 6 H. 301.
    Second — That any attempt on the part of the State to enforce Art. 207 of the Constitution, and Act No. 77 of 1880, carrying the same into effect, would operate against die company as a divestiture of its chartered rights, impair the obligations of a contract, and be violative of § l of seo. 10 of Art. 1, of the Constitution of the United States, and of Art. of the State Constitution. 8 "Wal. 430-439; 13 Wal. 264-269; 16 "Wal. 244; 20 Wal. 36 ; 15 Wal. 454.
    Third — That although the taxing power of a State is never presumed to be relinquished, yet, where the intention to relinquish is declared in clear and unambiguous terms, it cannot be recalled except for cause, and tbe exempted party put in default.
    Fourth — That under the shield of protection extended both hy Federal and State governments, plaintiffs became the owners of sixty male slaves, constituting the working force with which the road was to be completed; and when the State passed the ordinance of secession, and peveredits connection with the Federal Union, and afterwards manumitted the slaves, it assumed the responsibility of its own act, and the loss resulting therefrom cannot he visited as a penalty upon plaintiffs. If it were so, the State would be taking advantage of its own wrong. See Joint Resolution No. 22, p. 40, of 1855; No. 24, p. 42, of same year.

      Eiftb. — The same rule obtains in regard to the maintenance of levees — The State assumed the work of their erection, and failed. See Joint Resolution Ho. 5, p. 8 1865. Appointment of Levee Commissioners. Act Ho. 20, p. 34, of 1866; Act Ho. 115, p. 212, of 1867; Act Ho. 116, p. 216, ol I860; Ho. 117, p. 218, of 1867; Ho. 122, p. 236, of 1867; Ho. 72, p. 82, of 1868.
    Sixth — That the State alone (for causes other than those enumerated in plaintiffs’ charter) possesses the right to declare the forfeiture of a charter granted by it; but this must be judicially decreed, and cannot be inquired into collaterally. It is a tacit condition of a grant, that the grantees shall aot up to the end for which they were incorporated; and when they donot, the privileges and immunities granted may be withdrawn. But the misuse or abuse must be judicially ascertained — it cannot be declared by constitutional or legislative enactment. 13 L. 506; 15 L. 26; 5 An. 179; 9 An. 265; 2 R. 529; 12 An. 568; 11 R. 404.
    These questions were exhaustively and ably treated by your Honors in the case of the City of New Orleans vs. Poydras Orphan Asylum, Decision Book 53, p. 550, lately decided, to which the Court is respectfully referred
    •Seventh — By Act Ho. 89, p. 162, of 1866, the State authorized bonds to be issued in favor of the plaintiff company, and thus showed it did not consider the company censurable for the non-completion of the road.
    The judgment of the lower oourt should be affirmed.

      J. G. Egan, Attorney General, for Defendants and Appellants:
    Exemptions from taxation are to be strictly construed. 8 Ind, 328; Cooley on Taxation, p. 146; Burrough on Taxation, seo. 70, p. 132.
    The exemption from taxation of the above-named corporation dates from the time of the com - pletion of the road. Sec. 2, Act Ho. 271 of 1853, p. 248.
   The opinion-of the court was delivered by

Bermudez, C. J.

The plaintiff claims that its property is exempt from taxation and that the defendant should be enjoined from collecting any taxes from it. There was judgment accordingly, and the defendants have .appealed.

The corporation was chartered in 1853, to construct a railroad opposite Baton Bouge, from the Mississippi to terminate at a central point on the Bayou Grosse Téte.

The charter provides, section 2, “that the capital stock of said company and other appurtenances shall be exempted from taxation for ten years, after the completion of the road.” Act 271 of 1853, p. 243.

The evidence shows that the road has never been completed.

Had it been so, the exemption would have become operative from the time of completion, and would have continued for ten years.

Exemptions from taxation must be strictly construed. Cooley on Tax, 146; Burroughs 132.

To grant the relief sought would be to interpolate in the law relied upon, words which, in legislative contemplation, were not to form part of it, and thus to extend the immunity to the very creation of the corporation, before the beginning of any work, when it is manifest that the initial point for exemption was to spring into existence only after the completion of the road. That we cannot do.

We do not think that this is a case in which we can allow damages on dissolution of the writ.

It is, therefore, ordered and decreed that the judgment of the lower court be reversed; and it is now ordered and decreed that the injunction herein issued be dissolved, and that the demand of plaintiff be rejected with costs in both courts.

Rehearing refused.


author: Poché, J.

text:
    No. 7925.
    The Bank of Lafayette vs. Mrs. E. J. Bruff.
    A married woman, who has bound herself, with the marital authorization, towards an innocent third person, as surety of a party between whom and her husband there exists a secret partnership, cannot plead that she has, by her contract of suretyship, assumed to pay her husband’s debt, and thereby exonerate herself from her obligation. To sustain such a defense, would be to convert the laws intended for the protection of married women, into a system of legalized deception and fraud.
    It is well established that the pledgee of a note has the right to sue upon it in his own name.
    PPEAL from the Eifth District Court for the parish of Orleans. Rogers, J.

      Breaux & Hall for Plaintiff and Appellee:
    First — A married woman, authorized by her husband, may become a surety for a third person. G. C. 124,1781, 2397; Farrel vs. Toe et al., 2 An. 903; Helwig vs. West and Wife, 2 An. 1; Roberts vs. Wilkinson, 5 An. 377.
    Second — A concealed and unknown interest of the husband in a concern, cannot invalidate the suretyship given by a married woman to obtain credit for the owner of such business, in whose name it is conducted.
    Third — The suretyship was legally given in a negotiable instrument, and passed into the hands of third innocent holders as such, and they are protected.

      Frank H. Chretien for Defendant and Appellant:
    The burden of proof is upon the plaintiff suing on a note subscribed by a married woman, to show that the consideration, if any was given, inured to her separate advantage and benefit. y O. O. 2412; 1 An. 428; 5 An. 173, 572; 2 An. 579; 5 An. 495 ; 7 An. 144; 9 An 268; 5 An. 586; 7 An. 144, 283; 14 An. 169 ; 13 An. 546; 14 An. 15; 26 An. 737; Mrs. D. A. Taylor vs. Goodrich, not reported; 15 An. 352; 16 An.449 ; 19An. 206; 20 An. 229; 23 An. 96; 7 An. 144 ; 3 L. 74 ; 5 An. 495 ; 1 An. 428 ; 7 ÍT. S. 64; 9L 590; 5 K. S. 55; 3 M. 577 ; 5 M. 167; 2 2ST. S. 39; 6 R. 64; 7 R. S. 64; 5RT. S. 56; 4 R. 308; 3 L. 74; 1 An. 428; 3 An. 188; 4 R. 510; 9 L. 580; 12 R. 218; 4 R. 119; 7 R. 357; 2 An. 3; 12 An. 350, 852; 14 An. 419; 9 L. 589; 1 M. 488; 11 M 453; 12 R. 244; 7 K. S. 64; 10 L. 146 ;"6 R. 64; 6 An. 57.
    Suretyship is not presumed; it must be affirmatively established — as in all contracts; in that of suretyship consent is necessary, and that consent must be established by the plaintiff before recovery. C. C. Art. 3035.
   The opinion of the Court was delivered by

Poché, J.

Defendant appeals from a judgment against her on four promissory notes of $500 each, executed by her in Eebruary, 1871, with the authorization of her husband (who was then living), and secured by mortgage on her separate property, and she urges the following defenses.

1st. Want of consideration.

2d. That the consideration, if any, did not inure to her benefit, .but to that of her husband in his business.

3d. That the original drawees, J. W. Homan & Co., well knew, in taking said notes, that they were without consideration as to defendant.

4th. That the notes having been given to Homan & Co., as a collateral security, the present holders have no actionable interest in said notes.

The evidence shows that the notes were received by J. W. Homan & Co. as collateral security for a debt due to them by Leo Babin, a merchant in Thibodeauxville, La., and were by them pledged before maturity to the plaintiff herein.

It also appears from the evidence that defendant’s husband, E. J. Bruff, was interested, and a silent partner, in the business of Leo Babin, but that his connection therewith and his name were concealed for the purpose of screening his interest from the pursuit and reach of his creditors ; and that his interest in the concern was generally unknown, but was particularly unknown to J. W. Homan & Co., the drawees of the notes in suit.

This state of facts presents for investigation the following questions:

1st. Could the defendant legally bind herself as surety for the debts of Leo Babin ?

2d. Could the rights of the parties dealing with her as such, be affected by the fact of her husband’s concealed interest in the business of Lao Babin ?

1st. The general capacity of a married woman to contract, like all other rational beings of competent age, is restricted only by the necessity of her being authorized by her husband or by the court, and by the absolute prohibition to bind herself for the debts of husband or of the community. Hence it has been settled in our jurisprudence, and it can no longer be considered as an open question, that a married woman has the right, under proper authorization, to bind herself as surety for any other person except her husband. Farrel vs. Yoe et al., 2 An. 903; Roberts vs. Wilkinson, 5 An. 377; Wickliffe, Governor, vs. Dawson et al., 19 An. 48.

In the case last quoted the married woman was held bound as surety on an official bond signed by her conjointly with her husband.

We, therefore, conclude that Mrs. Bruff had full power to bind herself as surety for the debts of Leo Babin.

Her counsel in his brief argues that plaintiff cannot recover against her on the theory that she had bound herself as surety, because the petition contained no allegation to that effect.

This defect, if it be one, is cured by the direct averment of defendant, in charging that the notes had been received by J. W. Homan & Co., as a collateral security for the debts of Leo Babin. It is also worthy of notice that evidence in support of that theory was admitted without any objection on the part of defendant who, herself, introduced testimony in support of that very theory with a view to connect the indebtedness sought to be secured with her husband.

On the second question, we think that defendant’s husband, by concealing his interest in the commercial house of Leo Babin, having successfully defeated his creditors in their rights against his property, has justified innocent third parties in their dealings with the concern, to treat Mrs. Bruff as contracting to secure the exclusive individual debts of Leo Babin, and that she is now estopped from alleging that the debts which she intended to secure were those of her husband. To release her now from her contract of suretyship, on the ground of her husband’s interest in the house of Leo Babin, when such connection had been designedly concealed for the purpose of her husband’s fraudulent protection, would be to convert the laws enacted for the safeguards of married women into means of deluding and ensnaring innocent parties into legal pitfalls, and would inaugurate a system of legalized deception and fraud.

. There is no more force in the objection that plaintiff, as pledgee from Homan & Co., has no actionable interest in these notes.

It is now well settled that the pledgee has the right to sue on the pledged note, subject to the obligation of accounting to the pledgor for the surplus, if any, realized, after the satisfaction of the pledgee’s claim. Ducasse vs. McKenna, 28 An. 419; Dolhonde Succession, 21 An. 3; Blouin vs. Liquidators of Hart & Hébert, 30 An. 714; C. C. 3170.

Defendant’s grounds being all untenable, the judgment of the lower court is therefore correct, and is affirmed with costs.

Fenner, J., recuses himself, having been of counsel.