11 La. 23 | La. | 1837
delivered the opinion of the court.
■ The defendant having given a mortgage to the Union Bank of Louisiana, as stockholder, engaged, in case the right or title to the property mortgaged, should be deemed insufficient, on account of some defects, or of some tacit mortgage, or if any claim or right of mortgage should be exercised upon the same, that he would furnish other secuties to the satisfaction of the board of directors. The object of the present suit is to require such additional securities, on the allegation, that the plaintiffs have discovered, that by the marriage contract of the defendant, the property in question had been incumbered by a legal mortgage in favor of his wife, firstly, for the restitution of her dower of six thousand dollars, and secondly, to secure a donation propter nuptias for the sum of thirty thousand dollars.
I. It appears by the marriage contract of the defendant, that the father and mother of the future wife settled a dower of six thousand dollars, and it was expressly agreed that the reimbursement of the dower was secured by special mortgage on a certain lot of ground in New-Orleans, and all other property of the defendant, present and future, is declared to be free from any tacit or legal mortgage, which would have resulted from the celebration of the marriage, independently of such agreement and stipulation ; and the future wife, with the consent and assistance of her father and
Those articles of the code relied on by the counsel for the appellant, to show that such general legal mortgage can be dispensed with, only with the consent of a family meeting, evidently relate to cases where the mortgage had already attached, and the husband, after marriage, seeks to exonerate the mass of his property on creating a special mortgage on a particular part of it. Louisiana Code, articles 3310, 3311, 3312, 2357.
It may, however, be fairly inferred from these provisions of the code, that the legal mortgage, as means by which the reimbursement of the dower is secured to,the wife or her heirs, at the dissolution of the marriage, is not regarded as of the essence of the constitution of dower; and it would seem not illegal to conclude, that if it could be destroyed or modified when in existence, by agreement of the parties, it might well be dispensed with in future, by agreement on the part of the person for whose benefit it was intended. But the code contains other provisions more direct and Explicit on this subject: It is declared, that in relation' to property, the law regulates the conjugal' association only in default of particular agreements, which parties are'at liberty to stipulate as they please, under certain restrictions. They cannot alter the legal order of descents, nor derogate from the marital or paternal authority,' nor the • prohibitory dispositions of the code, and provided their agreements be not contrary to good morals. Louisiana Code, 2305-6-7.
The code further declares, that minors who are capable of contracting marriage, may give their consent to any agree
We have not been able to discover any provision of law by which such an agreement is prohibited ; on .the contrary, we have already observed, that married persons are permitted, even during marriage, to substitute a special in lieu of a general legal mortgage, as security for the reimbursement of the dowry, ■ even in cases where the wife is yet a minor. Article 3312.
It-is expressly declared by article 3305, that when parties, being of age, shall, by their marriage contract, agree that the recording shall exist only on one ,or more immovables belonging to the husband, the property riot included shall remain free and released from mortgage for the wife’s dower, but the same article forbids its being dispensed with altogether.- Persons of age are then capable of entering into such agreements, and we have already seen that minors, in relation to marriage contracts, possess all the capacities of persons of age, when properly assisted.
II. With respect to the alleged mortgage resulting from the donation propter nuptias,• we must assume as an undoubted principle, that no mortgage exists, except in the cases expressly authorized by law. Whatever may have been the opinion of this court, as to the existence of a mortgage in such a case, under the Spanish law, and the code of 1808, we are now to look only to the Louisiana Code, and subsequent statutes, for authority on this point.
The counsel of the appellant has relied on the second-clause of article 2355, in support of the pretensions of the bank. That article creates in favor of the wife a legal mortgage, 1st, for the restitution of her dower, and the replacing of her dotal effects, which she has brought at the time-of her marriage, and which were alienated by the husband, and judgment for the restitution or replacing of her dotal effects, which she acquired during marriage, either by succession or by donation, from the day when such succession devolved to her, or such donation began to have its effect.
We conclude that the plaintiffs have failed in supporting their allegations. -
It is, therefore, ordered and decreed, that the judgment of the District Court be affirmed, with costs.