Gasquet v. Dimitry

9 La. 592 | La. | 1836

Lead Opinion

One of the judges dissenting, the opinions were delivered seriatim.

Mathews, presiding Judge.

This case has its origin in a rale taken on the defendant, to show cause why a legal mortgage which she holds on the property of her husband, should not be erased from the records of the recorder of mortgages, on the ground that she had relinquished and abandoned in favor of the plaintiffs her right and claim as general mortgagee, on a specific portion of the property of her husband.

The case is now before the court on a re-hearing. In our former decision, two of the judges only took part; the third being at that time interested in the question. That interest having since ceased, he now takes cognizance of the cause, and dissents. When the case was before us on the first hearing, we examined the questions involved in it with great care and deliberation, as being new, and having an important bearing on the transactions of the citizens of the state generally. The cause has been argued much at length on the last hearing, but I am constrained to say, that after giving due and unbiased weight to the arguments, they have not had' the effect to change my former opinion, deliberately formed after laborious investigation as may be seen by the judgment already pronounced, by the junior judge of the court.

The question to be solved, arises out of a contract of mortgage made between the husband and the plaintiffs, in which the wife, by his consent, interposed and bound herself to postpone her legal mortgage to that stipulated by her husband, as a security for the payment of a debt by him solely contracted.

A correct decision of the case, depends mainly, if not exclusively, on a just interpretation of the 2412th article of the Louisiana Code. It is expressed in the following terms. “The wife, whether separated in property, by contract or judgment, or not separated, cannot bind herself for her husband, nor even jointly with him, for debts contracted by him, before or during' the marriage.” It is true, in the present case, that the wife did not bind herself personally to pay a debt contracted by her husband, but she bound herself to relinquish and transfer to his creditors, and for their benefit, rights vested in her by law, to secure the payment and discharge of a debt contracted by him for his individual benefit. If her contract had extended to all the property of her husband, it would have amounted to a total abandonment of the privileges secured to her by law, relative to her paraphernal property, and in my opinion, contrary to the spirit of the article of the code now under consideration. She could , , , . _ i _ _ *tt . not nave become surety for her husband, and the attempt in thepresent instance, to do indirectly, that which the laws prohibit to be done directly, cannot be tolerated. For, what essential difference is there between a contract which abandons all her rights, and gives them up as security for the payment of the debts contracted by her husband, and becom- . . ^ 7 mg surety for him, directly to the amount of these claims and rights 1 Why should a wife be allowed to yield her inchoate right to property, as security for the debts of her husband, when she is prohibited by law to bind herself in any manner to pay such debts 1 So long as the legislature think proper to continue in force those prohibitory laws made for the security of married women, to protect them against their weakness in regard to their husbands, and to shield them against the improvident solicitations of the latter, in relation to pecuniary interests, who are too often ill managing, and frequently profligate and unskilful, it is the duty of courts to see that those protecting laws shall not be violated, either directly or indirectly.

Where the wife renounces her right of 'hus-a debt of his therebybecomds his security, and does indirectly that which she is biddel^hy law t0 do direotlr- The wife may sell, or enter into the contract of mortgage in relation to her dotal or para-phernal effects and rights, with her husband’s consent $ but such contracts must be for her benefit, or that of her and her husband.

It has been argued, that as a wife can sell her property with the consent of her husband, she might well, with his consent, make the' less onerous or serious contract of mortgage, and one still less onerous, by which she relinquishes her right of mortgage. Perhaps she may sell her mortgage validly. But such contracts must be presumed to be made for her own benefit, or for the mutual benefit of herself and husband, by which she calculates on gain. Yet, admitting these contracts to be completely binding on her, it does not follow as a corollary that she could give her property in payment of the debts of the husband, without being able to rescind the contract, which is.a case much more analogous to the present, than either of the'two first supposed.

Jtis not oftlie essence of sure-tyship, that the obligations of the principal and surety should be co-extensive. If the ' wife renounce her right of mortgage, and cede it in favor of her husband’s creditor, she becomes surety for a debt of her husband’s contracting, so far as her interest in the mortgaged property is concerned.

I am, therefore, of opinion, that the former judgment should remain undisturbed.

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Concurrence Opinion

Bullard, J.

It is hardly necessary I should say more than that I concur in the opinion just pronounced by the presiding judge. It has always appeared to me, that the only question in the case is, whether the wife, by yielding her precedence to a creditor of the husband, as to the rank of their mortgages, bound herself either directly or indirectly for a debt of her husband’s contracting, in the sense of article 2412 of the code ; because, if that article be prohibitory, it creates a legal incapacity to contract, and the contract being null, it is admitted on all hands, that she cannot validly renounce ; or, in other words, give'herself a capacity which the law has denied her.

It cannot be denied that this is a contract; it is an agreement not to do. Mrs. Dimitry agrees not to enforce her mortgage, to the prejudice of Zoits, a creditor of her husband. If he enjoyed the right-of being first paid out of the property mortgaged, he derives that' right from this agreement or contract; and the object of this proceeding is, to enforce it. It has been said that, like a receipt for a sum of money, this agreement gives rise to no legal obligations on the part of Mrs. Dimitry. It certainly conferred a legal right on Zoits which he did not possess without it, and by means of which his debt was more amply secured. She does not bind herself personally to pay the debt, it is true; but it is not of the essence of suretyship that the obligations of the principal and the surety should be co-extensive. If A consents that B may mortgage the former’s land, to secure the payment of a debt personal to the latter, in what relation do they stand to each other 1 If Mrs. Dimitry, instead of ceding her precedence, bad consented to the pledge of certain evidences of debt due to her personally, to guaranty the payment of Zoits’s claim, will it be contended that she 'did not become pro tanto surety, for her husband ? Will it be said, that she did not bind herself to a certain extent for a debt of her husband’s contracting %

Saturn S anum of the Bo-man law, is the fountain of our lation^to mthé “S1?15 of maf-relates to mort-fheTmate con-gave the wile, who had pledged her own ¡Sitor 0f°her the right to recover itback, although by the creditor.

It bas been said, that the wife may sell her own para-phernal property, and nothing prevents her from paying a debt of her husband out of the proceeds. It is not so clear, that in such a case she might not recover back from her husband’s creditor money paid under such circumstances; money which she did not owe, and which she could not validly promise to pay. The Roman law is not now in force; but the Senatus Gonsultum Velleianum is the original fountain of our legislation on this subject, and it applied to •all contracts and engagements whatever. As relates par- . -, i r ticuiariy to mortgages and sales, the Senatus Gonsultum gave the wife, who had pledged her own property to a creditor of her husband, a right to recover it back, although it had been sold by the creditor.; and Pomponius teaches us that, if a woman, who has sold an immoveable to a creditor of the husband, having delivered it on condition that he should ° impute the price to the husband’s debt, should sue for the property, he might, indeed, set up the sale as an exception, but she would be permitted to reply that the sale was in 1 r J contravention of the Senatus Consultum, whose dispositions apply to the case. Pandects, law 16, title 1. Pothier's Pandects.

The article of our code in question, is full and comprehensive in its language, and, in my opinion, intended to prevent married women from intervening in any manner in the contracts between the husband and his creditors, by which their rights might be- ultimately affected to their prejudicé. So long as they enjoy those immunities by law, and labor under those disabilities, they are entitled to the protection of courts of justice.

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Dissenting Opinion

Martin, J.,

dissenting’.

j cannot consider the lien which a wife has on the husband’s estate, as an advantage which she is not at liberty t0 flounce, because it was introduced for the support of public order. As early as in the fourteenth century, as appears by a law of the Partidas, the obstacle which was opposed by this lien to the alienation of real property, was considered so intolerable that wives renounced it. This the legislator mentions not in terms of disapprobation, but as a measure which it, was proper to encourage and facilitate. Accordingly, the form of a wife’s renunciation was established by law. See Partida, 3, title 18, law 58.

This was several centuries before the laws of Spain were introduced into Louisiana. From that early period, till the year 1828, the constant jurisprudence of Spain and Louisiana recognised and supported the right of the wife to renounce her lien.

One solitary commentator appears to have called this in question in Spain. In Louisiana, 1 am not aware that it ever was doubted. I, therefore, find it impossible to assent to the proposition, that a right which for centuries has received the countenance and support of the legislature and courts of justice, can at this late period be declared by the judiciary power to be derogating from good morals and sound policy, unless the late change in our laws by the repeal of the Spanish law, imperiously demands a decision adverse to the right.

It is said it does, because, as the right of renouncing was given by the law of the Partidas, cited, the repeal of that law must abrogate the right.

I conceive that law of the Partidas, not as introducing a new principle, but as declaratory, or recognitive of an ancient one. The preamble recites that wives at times consented to the alienation of the real estate of their husbands, and the legislator publishes a form thereafter to be used in such cases. This is a legislative recognition, that the renunciation of the wife was a legitimate act, not at all derogatory of good morals or sound policy.

The repeal of the law of the Partidas, cited, leaves, in my opinion, the matter as it stood before the law was enacted ; and as the right has been recognised for centuries, as compa-tibie with good morals and sound policy. I have no data from which I may infer that it was otherwise before. I am aware of the Roman maxim : Interest rei publica ut mulier in dotata non remaniat. But nothing authorises me to conclude that it ever was introduced as a part of the Spanish law, or that if it ever was, it has been abrogated by -the general repeal of those laws in Spain.

On the repeal of the Spanish law in this state in 1828, some members of the bar expressed a doubt in regard to the renunciation of wives after that period. About this time, an immense increase of banks and banking capital took place, and the gentlemen employed to prepare drafts of bills of incorporation, thought it prudent to provide for the removal of every scintilla of doubt as to the renunciation of wives ; and in every charter for a bank granted thereafter, this prudent clause has been inserted. It is likely that I labor under an error in this respect, since I differ from the opinion of the court; but the conduct of the legislature has appeared to me an evidence of their considering the renunciation of wives as perfectly consonant with good morals and sound policy. For if it were otherwise, why should they open so many doors, or multiply the facilities to the. commission of acts destructive of morality and the good of society I What is the difference between a wife beggaring herself by aiding her husband in borrowing from a bank or from a capitalist 1 I admit that the sole circumstance of the legislature autho-rising renunciations, might be considered as a mere relaxation of an admitted general principle ; but the genius of the American people, the vast extension of commerce and universal practice, repel the idea that these renunciations are viewed by the people as immoral or impolitic.

If a farther illustration of this be necessary, we have a forcible one in the conduct of the legislature, when this tribunal announced its opinion on the first hearing in the present case. An electric panic suddenly pervaded the community, and created a general sentiment of alarm and insecurity. As 'in desperate cases, 'desperate remedies are resorted to, a bill/was introduced before the judgment of this court could have become final, if it had not been prevented by an application for a re-hearing.

This bill is evidence of the excitement under which it was received and enacted.' The general assembly rebuilt what they thought this court had pulled down. On this part of the case, I conclude the District Court did not err in considering the right of wives to renounce, as one established for their benefit alone, and which, consequently, they.are at liberty to waive.

It remains to examine, whether this renunciation be forbidden by the article of the Louisiana Code, which' forbids a wife to bind herself with or for her husband.

It is said it doesbecause, by renouncing, she binds herself not to claim what she has renounced. I believe this a very forced construction. Our code enumerates the modes of creating, and of extinguishing obligations. Payment and release are not found among the former, but among the latter. A release and renunciation are not similar, but identical. Yet if the proposition contended for be correct, payment and release, or renunciation, are the means of creating obligations.

If A and B be the debtors of C, and he receives the debt from A, and releases that of B, he binds himself to A not to demand the money he has received, and to B, not to claim the debt he released or renounced.

He who receives or releases what is due him, is npt bound to forbear asking for what he has .released or received, more than he is bound to forbear asking what never was due him.

It is true, the deed by which payment is acknowledged, or the release or renunciation made, may, and,does very often contain a clause by which the former creditor promises never to claim again; but such a clause is merely one of style : I say, the release or renunciation* may be ‘ effected by an engagement never to claim. In such a case, it is a mere release. I admit that one may beggar himself as easily by renouncing a right as by creating an obligation. But these means are not identical, but similar; similis non idem. ,

The first is necessarily limited, the other is not so. The release cannot exceed the right: the obligation may be beyond the means.

The Louisiana Code went into effect in 1825; between' that year and 1828, it never was imagined that the article prohibiting a wife to bind herself with or for her husband, prevented her renunciation. It cannot be denied that the opinion that the repeal of the laws of Spain did not abrogate the wife’s right of renouncing her tacit mortgage, was almost universal; that there is neither a notary in the city, nor a parish judge in the country, who was not in the habit before the decision of this tribunal, in the present case, of receiving acts of renunciation. ‘

The extraordinary means resorted to by the legislature to release the people from the danger attending the principles which the reversal of the judgment of the District Court will create, is to me a convincing proof that they thought their intention had been mistaken by this tribunal.^*

I am of opinion the judgment ought to be affirmed, with costs.

* An Act to limit the time in which married women, aged above twenty-one years, may retract renunciations made by them in favor of third persons, of their matrimonial, dotal, paraphernal and other rights; and to authorise them in future to make valid renunciations.

SeotioN 1. Be it enacted, by the Senate and House of Representatives of the State of Louisiana, in General Assembly convened, That all married women, aged above twenty-one years, who, with the consent of their husbands, have, by act passed before a notary public, voluntarily renounced, in favor of third persons, the mortgage which they had for the restitution of their matrimonial, dotal, paraphernal and other rights, shall have the right of retracting the said renunciations during only the forty days which will follow the promulgation of the present act, all laws or parts of laws, to the contrary notwithstanding.

Section 2. Be it further enacted, etc., That from and after the promulgation of this act, married women aged above twenty-one years, shall have the right, renounce, In favor of third persons, their matrimonial, dotal, paraphernal and other rights; provided, that the notary public, before receiving the signature of with the consent of their husbands, by act passed before a notary public, to any married woman, shall detail in the act, and explain verbally to said married woman, out of the presence of her husband, the nature of her rights, and of the contract she agrees to.

Section '3. And be it further enacted, etc,, That all laws and parts of laws, contrary to the provisions of this act, be and are hereby repealed.

Approved March 27, 1835.