5 Rob. 496 | La. | 1843
The only question which this case presents is, whether a married woman who sues her husband for a separation of property, can sue out an injunction to arrest the sale of property seized by the husband’s creditors, upon which she claims to have a legal mortgage and privilege as a security for her dotal rights ?
In this action, the plaintiff obtained an injunction which had the effect of preventing the sale of real property, seized by the husband’s creditors. Those creditors were made parties defendant, and on their motion to dissolve the injunction, on the ground that it had been wrongfully and improperly sued out, the court below dissolved it; and from' this judgment, the plaintiff has appealed.
It cannot be doubted, that a married woman, who, by virtue of arts. 2355 and 3287 of the Civil Code, has a legal mortgage on the property of her husband, and by virtue of arts. 3158 and 3182, has a privilege upon his personal effects, has no greater rights than any other person in whose favor the law grants a tacit and general mortgage and privilege. She can only enforce her rights in the manner pointed out by law ; and the exercise of those rights cannot prejudice those which third persons have acquired, or may acquire, against the property of her husband, provided they do nothing to deprive her of, or in any manner to affect the
Now, a married woman who has a general mortgage upon the property of her husband, would perhaps have a right to be paid out of the pioceeds of the sale thereof, in preference to any other subsequent creditor ; but, as this court said in the case of Gasquet v. Dimitry, 9 La. 588, she cannot claim the proceeds of the sale of property sold at the suit of one of her husband’s creditors, or exercise her action of mortgage against the property in the hands of a third person, if there be other property subject to her lien in the possession of the husband, or sold since, which she is bound to discuss.
Our law has provided for the sale of property subject to a general mortgage; and it is clear, that the existence of such a mortgage cannot prevent a sale of the property seized. Code of Practice, arts. 710, 713, 714, 715.
Under arts. 396, 401 and 403 of the Code of Practice, a third person may make opposition to the price being paid over to the seizing creditor, and may claim to regulate the effect of the seizure in what relates to him, when he contends, that he has a right
With this view of the question, it seems to us clear, that the injunction was -wrongfully sued out.
Judgment affirmed.