| La. | Feb 15, 1843
The petitioner, separated in bed and board from her husband, Henry A. Johnson, seeks to enforce her legal mortgage on a slave named Hannah, sold by him, and now in the possession of the defendant. The facts of the case, about which there is no dispute, are; that a few months after the marriage of the plaintiff, in August, 1832, her husband received from one Jacques Blanchard, a sum of three thousand dollars, due to her from the estate of her father, Pierre Allain, and for which her mother and tutrix, the wife of Blanchard, was accountable to her; that the three thousand dollars were paid in sugar and molasses delivered to Johnson, on which he realized a profit of seven hundred dollars, by selling those articles in Natchez; that, in
The judge of the inferior court has given to article 2367 of the Civil Code a construction to which we cannot assent. The article reads thus: “ The wife may alienate her paraphernal property with the authorization of her husband, or, in case of refusal or absence of the husband, with the authorization of the judge; but, should it be proved that the husband has received the amount of the paraphernal property thus alienated by his wife, or otherwise disposed of the same for his individual interest, the wife shall have a legal mortgage on all the property of her husband for the reimbursing of the same.”
The judge below was of opinion that this article gives to the wife a legal mortgage only when there is a sale of her paraphernal property, and her husband receives the proceeds or disposes of such proceeds for his individual interest; but that for all sums of money or property received or used by him, where there has been no sale of her property, she has no legal mortgage on his property. The error committed by the judge in construing the article under consideration consists, we apprehend, in applying the second member of the sentence, “or otherwise disposed of the same for his individual interest” to the proceeds of the para-phernal property sold, while it relates, in our opinion, to the paraphernal property itself, where it is disposed of otherwise than by a sale. If the construction of the judge were correct, the second part of the provision would be mere surplusage, which might be left out without injury to the wife, as her mortgage attaches the moment her husband receives the proceeds of the property sold, and he cannot dispose of such proceeds without first receiving them directly or indirectly. From the words of the article, it is clear to our minds, that after providing in favor of
The appellee’s counsel has contended, that the legal mortgage given by article 2367, exists only on the property of the husband, and not on that of the community; that as there is no evidence of title to the slave in Johnson, except that he sold her, such slave must be presumed to have belonged to the community; that the husband was by law authorized to alienate the common property, without the consent of the wife, and that, therefore, he sold the slave free from her mortgage. The question raised by this argument has nothing in it either new or embarrassing. When the wife renounces the community of gains and acquets (and she is presumed to have renounced, when, after obtaining a separation from bed and board, she does not accept it within the delay fixed by law,) all purchases of property made during the marriage remain for the account of the husband alone, as much so as if he had made them before the marriage. The effect of the renunciation is to place the husband and wife in the situation they would be in, had no community ever existed between them. The wife’s mortgage attaches, therefore, as completely to the property he acquires during coverture, as to that he possessed before. From the right given to the husband, as head of the community, to sell its effects, without the consent of the wife, it cannot be inferred that when he exercises that right, the property is relieved from her mortgage. If such were the case, the legal mortgage given to the wife would be nugatory. As we said in the case of Cassou v. Blanque, (3 Mart. 390,) “ a lien to be extinguished by the alienation of the property, would be no lien at all.” Like all other general mortgages, the wife’s mortgage
The District Judge has expressed a doubt whether article 2367, which accords a legal mortgage to the wife for her paraphernal property, is not itself repealed by articles 3281 and 3317. There is, in our opinion, no room for such a doubt. It is true that article 3281 provides, that the rights and credits for which a legal mortgage is given are those enumerated in the following articles, and that among them is not to be found the claim of the wife for her paraphernal effects ; but article 3280, immediately preceding, provides, that no legal mortgage shall exist, except in the cases determined by the Code, thus embracing and acknowledging all mortgages to be found in every part of it. From this latter provision it is clear that mortgages, expressly given in other parts of the Code, are not to be considered as repealed, because they happen to be left out of the enumeration made immediately after, and which is not in restrictive terms. The wife’s mortgage for her paraphernal property is not the only one omitted ; there are other legal mortgages which have not been mentioned. Civil Code, arts. 1627, 2762. Prior laws are not repealed by subsequent ones, unless by positive enactment, or a clear repugnancy in their respective provisions. If such be the rule in relation to laws enacted at different periods, it applies with greater force to the several parts of a Code adopted about the same time. As to the other article, 3317, quoted by the judge, it only prescribes, as a general rule, that all mortgages, conventional, legal, and judicial, shall be recorded. Other provisions impose on the husband the duty of having the wife’s mortgage recorded, and impose penalties for his neglect to do so; but whether this duty be complied with or not, the legal mortgage exists in favor of the wife. Civil Code, art. 3298. In the case of Pain v. Perret, 10 La. 300" court="La." date_filed="1836-09-15" href="https://app.midpage.ai/document/pain-v-perret-7159202?utm_source=webapp" opinion_id="7159202">10 La. 300, this court held that the rights of the wife, relating to her dotal and paraphernal property stand on the same footing, as regards the recording of the evidence of them.
It is, therefore, ordered, that the judgment of the District Court