10 Rob. 74 | La. | 1845
The defendant B. C. Legendre, who is a married woman, separated in property from her husband, having been sued as the third possessor of certain property on which the plaintiffs pretend to have a judicial mortgage, is appellant from a judgment giving effect to the said judicial mortgage, and which orders said property to be seized and sold to satisfy the plaintiffs’ claims against their principal debtor, B. C. Legendre’s husband.
The petition alleges that the plaintiffs are judgment creditors of Raphael Legendre, and that after having issued sundry executions against him, by which small credits were obtained on the amount due, the last execution was returned nulla Iona, no property being found to satisfy the same. They further state, that after said judgments were recorded, so as to operate as judicial mortgages on their debtor’s property, the wife of the latter obtained a judgment of separation against him, with a gene
The defendant B. C. Legendre, being an absentee, was represented by a curator ad hoc, who joined issue by first denying Raphael Legendre’s indebtedness to the plaintiffs, and by setting up the prescription of one year against their demand. He further sets up the wife’s title to the property under the sheriff’s sale, alleging that the proceeds of said sale have been credited on her execution, without any legal interference from the plaintiffs ; that, as the purchaser of property at a sheriff’s sale, she acquired the same free from any mortgage or other rights of the plaintiffs. That, by virtue of the marriage contract duly recorded, said defendant B. C. Legendre, became on the 1st of March, 1832, a creditor of her husband to the amount of $2000 ? that about four months after the marriage contract was passed, her husband was the owner of the house and lot described in the petition free from arty incumbrance, which property became
Although the pleadings appear to base the respective pretensions of the parties to this controversy upon various legal points which have been urged and relied on in the argument by their counsel, the only real question which this case presents for our investigation, is whether B. C. Legendre ever acquired by virtue of her marriage contract any legal mortgage on the property of her husband, as security for the amount therein stipulated to have been established by R. Legendre as the dowry of his future wife, and which he binds and engages himself to pay, so as to prejudice the rights of said Legendre’s subsequent creditors ?
The stipulation contained in the marriage contract, and relied on in support of the judgment of separation of property complained of by the plaintiffs, is in these words : “ and the said Raphael Legendre, Esquire, has established as the dowry of his future spouse, the sum of $2000, to be recovered out of his estate real and personal, which he binds and engages to the payment of the dowry.” This marriage contract was recorded on the 6th of August, 1832, and is the basis of the preference which the defendant B. C. Legendre claims on the proceeds of the sale of the property on which the plaintiffs subsequently acquired their judicial mortgages.
The evidence establishes that the plaintiffs’ judicial mortgages, as resulting from the recording of their judgments, have effect from the 19th of February, 1840, with regard to three of them recorded on that day, and from the 12th of July, 1843, with regard to a fourth judgment recorded on that day. The suit for a separation of property was instituted on the 6th of September, 1842; the judgment rendered therein was signed on the 28th of January, 1843; and the sheriff’s sale of the property described in the plaintiffs’ petition, was made on the 3d of June ensuing, for the sum of $1585, to the defendant, which amount was credited on the writ, as so much received in part satisfaction thereof. The judgment of separation allows to the wife a
It cannot be controverted that the creditors of the husband may object to the separation of property decreed and even executed, with a view to defraud them, (Civil Code, art. 2408,) and that they may subsequently complain of such judgment of separation, in cases in which their rights may be injured thereby. IS Toullier, Nos. 89, 90, and following. Favard, Yerbo Separation entre Epoux, sect. 1, § 2, No. 12. And Dclvincourt, vol. 3, p. 26. “ Si ils prétendent que la separation ne devoit pas avoir lieu, et si, en supposant la separation admissible, ils prétendent que la liquidation des droits de la femme a été faite d’une maniére préjudiciable aux intérets de leur debiteur &c. It is, therefore, clear, that the plaintiffs cannot, under this positive provision of our law, be precluded from enquiring into the grounds upon which the judgment obtained by the wife may be based; and that, particularly under the allegations of fraud and collusion, they have a right to contest the legality of such judgment, when used by the wife to defeat the rights which they may have acquired against her husband. 4 La. 421. 7 Mart. N. S. 460. 8 Ib. N. S. 459. 1 La. 373.
Now, the judgment of separation which is attacked in this action, and under the protection of which the defendant B. C. Legendre claims the property on which, the plaintiffs pretend to have their judicial mortgages, allows her a general mortgage on her husband’s property, to secure the payment of the sum of $2000, which the latter never received in the right of his wife, but which is the amount of a promise to pay, on his part, out of his estate, real and personal, as a dowry established by him in favor of his wife in their marriage contract. This sum, which is considered by the defendants’ counsel as a donation inter vivos, but which is rather in the nature of a disposition that cannot have any effect until the dissolution of the marriage, being due by the husband out of his real and personal estate, cannot, under the positive provisions of our laws, be taken as forming any part of the dowry, or dot brought by the wife to the husband, to support the expenses of marriage. Our Code is express upon this subject. It declares, in art. 2317, that “ by dowry is meant
This view of the principal question, precludes the necessity of examining any other. As to the plea of prescription, we think it is not applicable, as this case cannot be considered as a revocatory action. Although fraud and collusion are alleged against the marriage contract and the subsequent proceedings, such allegations go rather to the effect of the stipulation therein contained with regard to the husband’s creditors, than to the actual intention of the parties at the time of making the donation, and may be opposed by the subsequent creditors of the donor, who are to suffer from it. 7 Mart. N. S. 460. Toullier, vol. 13, No. 90.
Judgment affirmed.