Borel v. Borel

| La. | Sep 15, 1831

Porter, J.

delivered the opinion of the court.

The plaintiff states that she bought from the defendant, Annette Prevost, (Borel,) assisted by her husband (Eugene Borel,) a tract of land; that she paid the price, and that the said Annette refuses to cancel the mortgage on the ground that her husband was not, authorised to collect the debt. The petition avers that he was legally empowered to do so; and prays that the mortgage may be cancelled, or that if the court should be of opinion she had not the legal right or authority to receive the money, that judgment should be given against the husband for the amount of the debt collected by him.

The husband made no defence, and the wife pleaded that she never authorised him to administer her estate, and was not bound by his acts. The court below, however, gave judgment against her, and directed the mortgage to be can-celled. She appealed.

On the trial the plaintiff offered parole evidence to establish the authority of the husband to act for his wife, and administer her paraphernal estate. It was objected to, but admitted. The appellant has renewed the objection here, and insists that the power should be in writing.

The old code under which the transactions that have produced this suit arose, provides, that “ the wife may give a letter of attorney to her husband.” In the French text the words are, “peut dormer sa procuration a son marie.” At the time this code was enacted, laws might be passed in both languages; and we have repeatedly held, that it was our duty in construing it, to give both texts, if possible, effect. Hence, where the law as written in each language presented distinct ideas, we have considered that a compliance with either was sufficient; otherwise the instrument would be a decoy, instead of a beacon. In the instance before us, the term procurations embraces every mode by which a power of attorney can be conferred; and one of these modes is by parole. Ciml Code, 334, 335, art. 59; 423, art. 6. 12 Martin, 702. 1 Martin, N. S. 426.

Believing the evidence to be correctly admitted we have next to examine its effect. It is not very conclusive, but we are satisfied, that it does not so preponderate on the side of the appellant, as to authorise us to 'reverse the judgment which the court below has rendered on the question of fact. It appears the husband was in the habit of administering on his wife’s property, and managing, generally, her affairs; but their domestic peace was frequently interrupted by quarrels; that when these quarrels took place, the wife protested against his interfering with her property; and that on one, or perhaps more than one occasion, she forbade him'-collecting the debt in question. As soon as a reconciliation took places things took their former course; and the husband resumed the administration of her affairs until another' dispute' arose between them. It is proved .the wife has .brought two or three suits for separation, and has 'abandoned.'them, in one she expressly charges that her husband is to account' to her for the price of this land: an averment strongly implying that he had been authorised to receive it;' or that if he had not been so authorised, that she sanctioned' the act. When we join to these circumstances the fact, .that eight years has elapsed since the last payment was made, and during all this period no steps have been taken by the wife to collect the debt, we are unable to say the judge below erred in deciding that the husband received the money by authority from his wife, or at least with a knowledge on her part that he was doing so, and that she did not oppose it. We come the more readily to this conclusion, because it meets the justice of the case, the estate of the husband being amply sufficient to satisfy all demands of the wife against it.

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