28 La. Ann. 312 | La. | 1876
John Kerwin and Kate Kerwin, major heirs of Michael
The Hibernia Insurance Company moved to dissolve the injunction on the grounds:
First — The court is without jurisdiction.
Second — The matters alleged in the petition áre res judicata, the plaintiffs having previously applied to the Sixth District Court, where the ex-ecutory proceedings took place, for an injunction, on- the same grounds, which was refused.
Third — The allegations of the petition do not warrant the issuance of the writ.
Fourth — The bond and security are insufficient, and not such as the law requires.
First — The court has no jurisdiction.
Second — If it had, there is pending in the Sixth District Court a suit for tho same cause of action.
Third — And if the court has jurisdiction, tho petition sets forth no sufficient cause of action.
Fourth — The allegations of the petition are inconsistent and contradictory.
Fifth — Mrs. Kerwin can not be heard to allege her own insanity.
In case said exceptions are overruled, the answer is made setting up tho purchase at sheriff’s sale, and a special denial of the invalidity of tho mortgage.
The exceptions and rule were tried together, the injunction was dissolved, the exception sustained, and the suit dismissed. Tho plaintiffs appealed.
¥e think the record does not sustain the judgment. The insurance company relies on a clause in the act of purchase by Mrs. Honora Ker-win, authorized and assisted therein by her husband, the father of the plaintiff heirs, in the following words: “ The said Mrs. Kerwin declared that she makes the present purchase with her own funds, and which she acquired by inheritance from her late father and mother, and with a portion of which she has paid the hereinbefore-mentioned purchase price, and is to pay at their respective maturities the notes herein granted and described. Wherefore, the property herein sold is to be and remain her paraphernal property.”
It is urged that as the husband and father, who signed the said act, could not question the truth of the above enunciation, acknowledgment, and recital, the plaintiffs, his heirs, can not do so, and articles 22.3(5, 2238, 5 An. 367, 9 An. 242, and other authorities, are cited. Tho articles of tho Code cited are to tho effect that an authentic act is full p>roof of the agreement contained in it against the contracting parties and their heirs and assigns, unless it be declared and proved a forgery, and is proof of enunciations therein, provided they have a direct reference to the disposition; enunciations foreign to the disposition can serve only as a commencement of proof.
In this case the clause invoked is not an agreement between tho vendor and vendee, but simply an acknowledgment by the husband and wife, as between themselves, which is foreign to the disposition in tho act of sale, and is not conclusive in favor of or against any one. Agreements or acknowledgments between husband and wife are restricted in their effect and operation to specific subjects, and the one in this case can, at most, bo only a commencement of proof, and the heirs of the husband are not estopped from questioning it, as they might be if the acknowl
As to the other grounds of the motion and exception, it need only be said that the action is not one enjoining the execution of a writ issued from the Sixth District Court, but to. annul the act of mortgage and the sale made under it. There is no suit pending in said court, nor is the action res judicata. The petition for injunction, it is true, was filed, but the court refused to issue the injunction, and the defendant was not cited.
As to inconsistent and contradictory allegations, if there be such, the right of the defendant is to require plaintiffs to elect or to object to evidence at the right time, but not to dismiss the suit. Whether Mrs. Ker-win can be heard or not to allege her own insanity, it does not prevent the other plaintiffs from doing so.
We think, if the allegations of the petitions be true, there is a sufficient cause of action, and the heirs of the father should have an opportunity to try the issue presented. There is no evidence as to the surety on the bond.
It is therefore ordered that the jridgment appealed from bo reversed, the motion and exceptions overruled, and the case remanded to bo proceeded in according to law, appellees to pay costs of appeal.