3 La. 491 | La. | 1832
delivered the opinion of the court. ^
This case presents, for our decision the question, whether a mjBor emancipated by marriage, can dispose of and alienate her moveable property, without the advice and consent of a family meeting, and the authority of the judge.
The judge below was of opinion she could. We agree with him; and we assent to the reasoning on which he expressed that opinion.
The 376th article of our code, declares that “ the emancipated minor can neither alienate, affect, nor mortgage his immoveables or slaves without the authority of the judge, which can only be granted with the advice of a family meeting, &c.”
The 377th provides, “that the emancipated minor has no right to dispose of his moveables or immoveables by donation inter vivos, unless it be by marriage contract, in favor of the person, to whom he is to be married.”
The argument a contrario sensu, as we think, we have remarked on another occasion, is not always true in the interpretation of laws, particularly when applied to a subject which cannot be presumed to have been within the consideration of the legislator, at the time the law was passed. But from the provisions, already cited, it appears impossible to resist the conclrrsion that the subject of the minor’s authority over his moveable property, was considered by the legislature, and that they intended he should have the power to alienate it. It cannot be believed that, when they were prohibiting the alienation of his immoveable property, they would not have also prohibited the alienation of his moveable, if they considered it politic to extend the restriction so far.
And if any doubt could exist as to their intention, it is removed by the next article, where they limit his authority over moveables, by declaring he shall not make a donation of them. This implies most strongly, that without this prohibition, he might have made a donation of them; as it also implies they did not think proper to deprive him of the authority to alienate them for a valuable consideration. For
The only difficulty, which the case presents, arises out of the provisions of the 373d article of our code. It enumerates what acts the minor emancipated may do, and it states them to be the full administration of his estate, and the passing of all acts which are confined to such administration, &c.
The power of pure administration does not, it is believed, include that of alienating, and we observe that in the Napoleon Code, from which ours was principally taken, the authority of the emancipated minor is confined to acts of that description. Our legislature has not thought proper to adopt the legislation; but has declared the minor shall have the full administration of his estate. Hence we conclude, they intended to leave him the authority to alienate moveables; because it is necessary to a full administration of property of that description, that he should have such authority. Objects of this kind, at least many of them, are perishable in then-nature ; they fluctuate in value; they are, taken separately, of small amount; and we conclude the law contemplated they might be disposed of, without calling a family meeting in each instance. Taking the whole legislation together, we give „ .... .. ... . , . effect to its obvious intent, m deciding that the minor may dispose of his moveable effects. There is a reason, peculiar to this case, which renders it proper. The plaintiff has , , , . . . . exchanged her bank stock for slaves, and, m doing so, has made an acquisition of property which she will not be able to alienate, until she arrives at the age of majority.
It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be affirmed, with costs.
