Nachman v. LeBlanc

28 La. Ann. 345 | La. | 1876

Taliaferro, d.

In this case a married woman, alleging herself to be separate in property from her husband by judicial decree, and claiming to be owner of two lots of ground, with tho buildings and improvements thereon, situated in the city of Baton Rouge, complains that Moyer, Weiss & Co., merchants of New Orleans, have caused an order of seizure and sale to issue against the property of her husband, and that under that order the sheriff has seized her said property and advertised' it for sale. She thereupon applied for and obtained an injunction restraining the sheriff from proceeding to sell- the property. In her petition the wife sets forth various grounds and reasons why tho property seized should not be sold. She avers that the note and mortgage given to Mej^er, Deutch & Weiss, upon which the order of seizure and sale was taken out, were not intended to be for an' absolute indebtedness to the amount of tho note, but were executed as a continuing guarantee and security for future advances to be made to her husband by them; that in truth and reality the real sum for which her husband was indebted to' them has been fully paid by shipments of cotton made by him to his said merchants, and that ho does not, on account of said noto and mortgage, owe thorn any thing.

She declares that, in signing the mortgage with her husband and renouncing her legal rights cn tho property mortgaged, she did so in ignorance of her rights; not having, them detailed and explained to her as required by law; that she is illiterate, not knowing how to write; that she is therefore not bound by tho said renunciation.

Tho plaintiff is met by various exceptions interposed by tho seizing creditors. They aver in their answer that tho pretended judgment of separation of property sot up by tho plaintiff has lapsed and become null and without effect through her failure to execute tho same within the time required by law, and is without offoct, cron as between tho parties to it; that the effect of said judgment on tho mortgage records could have no effect as to the respondents, for tho reason that plaintiff joined in tho act and specially renounced whatever mortgage rights or other claims she may have had on the property. They deny generally all tho averments of the plaintiffs petition, and pray that the injunction bo dissolved, with damages.

The judgment in tho court below was rendered in conformity with the prayer of tho defendants’ answer. Tho injunction was dissolved with ton per cent damages on the amount enjoined as general damages and special damages as attorney’s fees in the sum of §350, to bo recovered in solido against tho plaintiff and her sureties on tho injunction bond, and all costs of suit.

Tho plaintiff .lias appealed.

The property seized was mortgaged by the plaintiff’s husband to the seizing creditors on the twenty-sixth of March, 18G8. The plaintiff’s judgment against her husband was rendered on tho eighth of July, 18C8. The husband convoyed the same property to his wife on tho ninth of August, 1869, in payment of her judgment against him.

The ease would soom to turn upon the question of validity of the wife’s judgment.

The article 2428 [2402] of the Civil Code provides that: “ tho separation of property, although decreed by a court of justice, is null, if it has not boon executed by the payment of the rights and claims of tho wife, made to appear by an authentic act, as far as the estate of the husband can meet them, or at least by a bona fide non-intorrupted suit to obtain payment.”

For obvious reasons this “ bona fide non-intorrupted suit” to obtain payment and satisfaction of tho wife’s judgment is imperative, and nullity results from its non-observance. Here eleven months elapsed after tho rendition of the plaintiff’s judgment against her husband before any movo of any kind was made to enforce it. More than one year before tlio rendition of her judgment her husband had been owner of the houses and lots he conveyed to his wife in payment, to the extent of their value, of the judgment rendered against him. There is no reason why the dation en pcdement could not have been at once, or at least within a far briefer period of timo than eleven months. We can not but conclude with the judge a quo that through her laches in failing to comply strictly with tho law requiring prompt and continuous proceedings to enforce-the payment of her judgment, it had become null before she instituted this injunction proceeding, and was at that time without any legally ascertained rights that authorized her to interfere in the efforts of the defendants to enforce their mortgage against tho property in question. The sale from the husband to the wife after her judgment had lapsed was simply null. They were then in the same situation they wore before the rendition of the judgment. They were not separate in property, and there was no judgment of the wife which the husband was required to satisfy. For the same reason, she was without interest or right to show that tho debt upon which is predicated the mortgage from her husband to tho defendants was paid and extinct at the time they took out their order of seizure and sale. It wTas a matter for the husband alone to-look to. We'do not find the allegations of the plaintiff in relation to the-instructions given her by the notary before she signed her renunciation of her rights on the property mortgaged fully made out. The instructions seem to be sufficiently clear and explicit.

It is therefore ordered that the judgment appealed from be affirmed with costs in both courts'.

Rehearing refused.