33 La. Ann. 659 | La. | 1881
The plaintiffs, mortgage creditors of the defendant, Widow E. R. Delogny, seek by this action to annul a sheriff’s sale of a plantation, situated in the parish of St. James, made on the 4th of April, 1874. This sale was made in a proceeding to foreclose a special mortgage on the property, executed by Mrs. Delogny on the 29th of November, 1865, in favor of N. R. Delogny, her son, who was the purchaser at said sale, and is also a defendant in the action.
It is charged in the petition that the debt for which the property was sold was not the debt of Mrs. Delogny; that if it ever had any existence at all, it was a debt of her husband, for which she obligated herself in contravention of a prohibitory law; and it was, therefore, an absolute nullity; and further, that it was prescribed before the date of the sale.
It was alleged, also, that the sale was a nullity owing to certain irregularities and illegalities in the proceedings, under which it was made — -which irregularities are specifically set forth in the petition.
This action of nullity was coupled with a suit for the debt claimed to be owing the plaintiffs by Mrs. Delogny, and for a recognition of the mortgage securing the same.
The defendant, N. R. Delogny, answered; first, pleading the general issue, and then averring the reality and validity of the mortgage debt under which the property acquired by him at the sheriff’s sale was sold, and the legality of that sale, alleging that the consideration of the debt inured to the benefit of Mrs. Delogny, his co-defendant, who, at the time it was contracted, was the owner of" the plantation mortgaged, and separated in property from her husband, and finally, he denied the right of the plaintiffs to attack this mortgage or demand the nullity of the same, for the reason that plaintiffs were not the creditors of Mrs. Delogny at the date of the contract, nor till long afterwards.
No answer was filed by Mrs. Delogny. There was judgment by default against her for the debt sued on, with a recognition of the mortgage on certain property not embraced in the act of mortgage to N. R. Delogny, and'rejecting the demand for the nullity of the sheriff’s sale. From this judgment the plaintiffs appealed.
The mortgage was executed by Mrs. Delogny in favor of N. R. Delogny, on the 29th November, 1865, and the one in favor of the plaintiffs, together with the notes which it was given to secure, on the 29th of December, 1872.
It is plain that, if the mortgage in favor of N. R. Delogny was given to secure a real and valid debt of Mrs. Delogny, and it was a subsisting debt at the time of the sale in question, it could not be attacked by the plaintiffs, who became her creditors long after its execution. This, we
It is shown that the plantation mortgaged was the separate prop» erty of Mrs. Delogny, and had been long prior to the date of the mortgage in favor of her son. Much testimony was taken to show that Mrs. Delogny had the separate administration of her property, and that the ' debt in question inured to the separate benefit of her property under her exclusive administration, and that, therefore, the debt was her debt not the husband’s, for the payment of which she legally bound herself in the act of mortgage.
The view we take of this ease, after a thorough investigation of the issues presented in the pleadings and the law bearing on the same, renders it unnecessary that we should decide this question of law and fact, in regard to and bearing upon the original liability of Mrs. Delogny for this debt. We are strongly inclined to believe, from the evidence, that the debt, or a large portion of it, was contracted for the benefit of Mrs. Delogny’s separate property, and administered by her, and, therefore, a valid and subsisting debt against her; but, as stated, the decision on this point is not necessary to the conclusion to which .we have arrived.
As shown above, the act of mortgage in favor of N. E. Delogny was passed in November, 1865. The husband of Mrs. Delogny died in 1866 On the 6th of January, 1872, Mrs. Delogny formally and in writing acknowledged the debt, and promised to pay it, thus fully ratifying the contract, and interrupting prescription upon it. In December, 1872, she executed the mortgage and notes in favor of the plaintiffs.
The mortgaged property was sold in April, 1874, under executory process taken out on the mortgage in favor of N. E. Delogny, and by her silent acquiescence in the proceedings and sale, she again'ratified the contract in which they were based.
Admitting that the debt originally was the debt of her husband, which she thus ratified and promised to pay and permitted the sale of her property to pay, did such ratification create any legal obligation on her part, and make the debt a valid debt against her from the time it was contracted ? In other words, was the mortgage given by her for the debt of her husband, conceding it to be such, a nullity so absolute and radical as could not be ratified by her, after the death of the husband and after she was thus freed from marital power and influence ?
While we find that the best known and most marked division of nullities is that of absolute and relative nullities, yet the former have been subdivided into two kinds or classes.
Eor instance, if the cause of nullity in a contract rests on motives primarily or exclusively of public policy or social order, or has its origin in the respect due to good morals, it is a nullity so absolute and radical that the law always and continually resists it and makes and declares it as non-existent and not susceptible of ratification. Among contracts thus tainted are cited contracts by the father or husband to surrender the paternal or marital power, contracts to pay money for the commission of a crime, a partition of a succession b'efore it is open, and such like contracts.
This principle is thus enunciated by Dunod, a writer of acknowledged distinction:
“La prohibition est censée faite par rapport a l’intórét public lorsque son premier et principal objet.est le bien de la socióté, la conservation des choses et droits qui appartiennent au public, et qu’elle statue sur ce qui concerne les bonnes moeurs, ou ce qui est hors du commerce, par le droit naturel, des gens ou civil.
“ Tellessont les dispositions des lois au sujet des actes quiemportent quelque dólit ou quelque turpitude, ou contiennent l’aliénation de ce dont le commerce est interdit, pour une cause publique et perpétuelle comme les choses saeróes et le domaine.
“La nullitó qui résulte de la prohibition en ce cas est absolue, parceque la loi rósiste continuellement et par elle méme a l’acte qu’elle dófend; elle le róduit a un pur fait, qui ne peut étre ni confirmó ni autorisó, et qui ne produit aucun droit, aucune action ni exception. Cette nullitó peut étre objectóe, non-seulement par la partie publique, mais encore par toutes sortes de personnes.”
Dunod, Traite des Prescriptions, 1er part, chap. 8, p. 47.
Another class of nullities which do not fall strictly under the principles above- referred to are, nevertheless, in a certain sense, absolute. It is .that class of nullities which, while they to some extent affect public
As the same author expresses it:
“ Quoique la fin de la loi sóit toujours l’intérét du public et de la société, la vue de cet intérét est souvent éloignée, et la loi considere en premier lieu, dans sa prohibition et dans les nullités qu’elle pronance, l’intérét des particuliers.” Primario speotat utilitatem privatam et secondario publicam.
Toullier, speaking of this class of nullities, uses this language:
“Des nullités prononeées prineipalement, primario, pour intérét des particuliers * * * sont nóanmoins absolues dans ce sens qu’elles anéantissent essentiellement et radicalement l’acte et'le font regarder comme non fait et non avenu.
“ Ainsi, s’il est vrai que toutes les nullités qui ont l’intérét public pour cause premiere sont absolues, il n’est pas vrai de dire que toutes les absolues ont pour cause l’intórét public.”
Toullier, vol. 4, 553 et seq.
This division of absolute nullities into two kinds, based on the reasons mentioned by the authors cited, has been expressly sanctioned by the decisions of this Court.
Vaughan vs. Christine, 3 An. 328.
Chesneau’s Heirs vs. Sadler, 10 M. 226.
Hassel’s Heirs vs. Lefebre, 6 L. 601.
Toullier cites among this kind of nullities the alienation of dotal property and the sale of an immovable of a minor by his tutor; and in regard to the latter, he says: this sale of a minor’s property is null, absolutely null, yet the minor may ratify it, and then adds:
“ En un mot, nous ne connaissons point de nullité fondée sur l’intérét pi’ivé qui ne puisse étre réparée par la ratification expresse ou tacite.”
And this language of Toullier, and the doctrine which it sanctions, have been approved by this Court. 3 An. 328.
The nullity charged, respecting the act of mortgage executed by Mrs. Delogny in favor of her son in this ease, may be classed among the nullities that results from the incapacity of the wife, growing out of the relation she bears to her husband. C. C. 1790.
To judge of the character of the nullity, we must consider the reasons for its enactment.
It is evident that when the law declares that the wife cannot bind herself for her husband, or become security for his debts, this was to protect her against acts resulting from her dependence on her husband. The law grants to the married woman the ownership of all property
Such a contract may be assimilated to other contracts which the wife is forbidden to enter into without the consent of her husband. Thus article 2397 Civil Code declares that the wifé, whether separated ■ in property by contract or judgment, or not separated, cannot, except by and with the authorization of her husband, and in default of the husband, with that of the judge, alienate her immovables of whatever nature they may be. And another article (121) forbids her to mortgage or acquire without such authorization. These provisions of law may be presumed to have been enacted in a certain sense from motives of public policy and the general interests of society, for the proper and salutary maintenance of marital authority, as the other, first quoted, was designed for the protection of the wife against the undue exercise of such authority. They seem to stand on the same footing; and it is worthy of note that article 2397, forbidding the wife to sell her immovables, and article 2398 containing the prohibition against her binding herself for the husband’s debts, constitute of themselves one section, and that section is entitled, “ Of the wife’s incapacity to alienate her immovables or to bind herself for her husband.” Such arrangement and grouping of the articles, with the common title given them, afford a fair inference that the nullities established by the said articles are of the same character. Now, it will hardly be questioned that a married woman who sells her immovable without the authority of her husband, can ratify such sale after the dissolution of the marriage; yet, the same
Nor is the Code silent in regard to.the power of the wife to ratify contracts'which the law forbid her making during marriage, after such disability shall have ceased. Article 1786 0.0. declares:
“ The unauthorized contracts made by married women, like the acts of minors, may be made valid after the marriage is dissolved, either by express or implied ratification.”
And in this power of ratification thus conferred we see no distinction made in the contracts that may be ratified and no limitation of the power to ratify, to any particular class of contracts.
One test of the absolute nullities of contracts, that is of nullities of so absolute a character that they can never be ratified, is that such contracts confer no rights on any party thereto, and no right or claim can grow out of them; that the nullity can be invoked, not only by the parties, but by any one having the least interest in doing so. If the prohibited contracts of a married woman were of this class, she could in no case claim any right under them, but they would be void as to her as well as to the party with whom she contracted. Yet, the law has expressly provided “that persons who have treated with a married woman cannot plead the nullity of the agreement, if it is sought to be enforced by the party when the disability shall cease.
The case of Gasquet vs. Dimetry, 9 An. 585, strongly relied on by the plaintiffs’ counsel in support of his position on this question, nor in fact any of the numerous authorities cited by him, are in opposition to the views we have expressed. The case referred to and the others mentioned were cases where the wife never ratified the contract, and where she or her representatives had invoked its nullity. We have stated expressly that, where there is such want of ratification, or where its nullity is invoked, the contract can never be said to have existed at all; but is void ab initio.
The contract between Mrs. Delogny and N. R. Delogny, being one that was susceptible of being ratified by her, granting that it was in the beginning invalid, and being thus ratified, such ratification was retroactive, and gave it a legal effect from the day it was entered into by the parties. Omnis ratihabitio retro tráhitur et mandato cequiparatur.
The plaintiffs, not being creditors of Mrs. Delogny at that time, and the obligations sued on having been contracted subsequent to the ratification of the contract complained of, they have no legal right tó attack it.
The only remaining question to be noticed, is in relation to the alleged nullity of the sheriff’s sale on account of the illegalities charged in the petition.
Nor do we perceive that the failure of N. R. Delogny to sell or have sold all the property mortgaged to him, affects or in any manner impairs the validity of the sale. Such exemption certainly gave plaintiffs, subsequent mortgagees, no cause for complaint.
The judgment of the lower court is affirmed With costs.
Rehearing refused.