63 So. 89 | La. | 1913
Lead Opinion
On Motion to Dismiss the Appeal.
The grounds are that plaintiff sequestered a number of barrels of molasses of her husband.
The creditor of plaintiff’s' husband, who had the molasses in his possession, under a forthcoming bond, filed an exception to dissolve the sequestration, which was sustained, and the sequestration dissolved and the property delivered to the Sugar Planters’ Storage & Distributing Company, plaintiff in motion to dissolve.
Mrs. Ernestine L. Viguerie, plaintiff in the suit in which the writ of sequestration was issued, obtained an order of suspensive, and in the alternative, of devolutive appeal. The court fixed the bond on either appeal at $100.
The property sequestered is worth about $3,000.
This motion has no merit.
The question was thoroughly considered
See, also, on the same subject, Day v. Bailey et al, 116 La. 961, 41 South. 223.
Motion overruled.
Opinion on the Merits
On the Merits.
Plaintiff obtained a judgment of separation of property in 1S85, and since that date has administered her property.
She claims that she became the creditor of her husband in the year 1912 in the sum of $5,000, used by her husband on his crop. That he “executed a crop privilege” in her favor on Nov. 11, 1912,'and pledged and pawned it per act duly recorded. She averred that this crop on which she claims the privilege is in the possession of the Sugar Planters’ Storage & Distributing Company of New Orleans, which claims to be a creditor of her husband, as she avers; and that they are about to take it beyond the jurisdiction of the court; that, if this be done, it would be in violation of the forthcoming bond furnished by the company to obtain possession of the property.
The Sugar Planters’ Storage & Distributing Company filed a rule to have the sequestration dissolved, alleging that the contract declared upon by Mrs. Ernestine L. Viguerie, plaintiff, is null; that she has no right to stand in judgment, being a married woman, and the defendant her husband; that it intervened as pledgee of the molasses in the suit of the Citizens’ State & Savings Bank v. Frank C. Viguerie, No. 13,358 of the district court, and gave its forthcoming bond to the sheriff; that, even if plaintiff, Mrs. Viguerie, has a valid claim against her husband (it is denied that she has), she has no right of action.
The company claims $500 fee of attorney against Mrs. Viguerie, and the surety on her bond as plaintiff in sequestration.
The court rendered judgment dissolving the sequestration, and dismissing plaintiff’s suit, and Mrs. Viguerie appealed.
“When one of the spouses makes a transfer of property to the other, who is judicially separated from him or her, in payment of his or her rights.”
Second. “When the transfer made by the husband to his wife, even though not separated, has a legitimate cause, as the replacing of her dotal or other effects alienated.”
Third. “When the wife makes a transfer of her property to her husband, in payment of a sum promised to him as a dowry.”
These exceptions are exclusive, and have been construed as limiting the parties to the instances mentioned. As a general rule, the husband and wife are incapable of contracting with each other. The only exceptions to this rule are those enumerated in article 2446 of the Civil Code (New).
Attempted contracts between husband and wife not included in these exceptions are nullities. Hayden v. Nutt, 4 La. Ann. 65.
One of plaintiff’s contentions is that she has not sued upon a contract.
The answer suggests itself — that does not remedy the situation. She certainly refers to an investment; we will call it in order to meet the situation. At any rate, there must have been some sort of an understanding between husband and wife. If there was not, then there is no claim whatever.
The petition is plain enough upon the subject.
Under general laws, all “written agreements” between husband and wife, made with a view of securing such a claim as that of plaintiff, are prohibited during the marriage. A wife cannot acquire rights against her husband by advancing on the crop in accordance with a “written agreement.” She cannot thus change the nature of her paraphernal rights and become a money lender or merchant, and, as such, advance to her husband. Those are not business relations into which she can enter. Garner, Adm., v. Gay, and Others, 26 La. Ann. 375.
The wife is not authorized to involve her paraphernal rights by advancing on the growing crop of her husband. She owes assistance to her husband, ■ but not by making loans such as those before mentioned.
The wife is not entitled to two securities, to wit: A privilege or pledge and a legal mortgage. The pledge is acquired by “written agreement.” Act No. 66 of 1874.
She cannot, by written agreement with her husband, acquire a privilege.
The civilians of ancient times conceived the idea of a paraphernal right in the interest of the wife and family, while the pledge or privilege is of recent times, adopted mainly in the interest of agriculture. The legal mortgage is intended to be somewhat permanent. The pledge or privilege is a matter of a year. The wife has no right to divide her claim, make loans to her husband, and carve out a right in the growing crop.
The articles of the French Code upon the subject are similar to ours. The French commentators are clear upon the subject. Article 2446 of our Code was borrowed from article 1595 of the Code NapolSon.
Hue, the French commentator, states that it was advisable as between husband and wife, not to place parties between duty and interest, duty on the one hand and interest on the other, with the temptation that such interest 'almost' invariably stimulates. It was to prevent these situations that the prohibitions contained in the French Code were adopted.
We have gone further into the subject than there was need of going in this case, and have discussed it from the point of view, also, of preventing fraud upon creditors. (It must be said that there is no question of fraud here.) Hue, vol. 10, p. 76, § 49.
We will refer for a moment (other than the privilege in the crop under' statute before discussed) to a general principle. The article (2390) regarding legal mortgage is simple and direct, and extends fortunately no further than the mortgage. There is nothing about it encouraging loans to the husband.
Plaintiff has cited decisions as applying which in our opinion do not apply. They relate to the evidence of the indebtedness of the husband, and do not support the proposition that the wife can generally enter into business transactions with her husband. We will not review each of the decisions cited by the plaintiff, as it would only result in reaching the conclusion just expressed.
If plaintiff’s premises are correct, the decisions cited are pertinent; if they are not correct (and we do not think they are), the decisions are not pertinent.
As we have not found it possible to agree with the premises stated, we will not review each decision as there is no necessity.
We have considered the issues heretofore as presented in the petition. But, conceding that the purpose of this suit is to recover by asserting a special right on the crop under the article of the Civil Code cited supra (although the petition claims a pledge, and seems to limit the issues to the act of 1874, relating to “pledge or privilege”), she
Plaintiff has entirely ignored the proceedings (in this separate suit), and seeks to recover the property in another independent and direcf suit against the interveners, who owe an account of their possession to the court in the suit in which the property was first sequestered.
If there was good ground to compel the Sugar Planters’ Storage & Distributing Company to return the property in satisfaction of plaintiff’s claim, the action should have been Drought in the original suit; otherwise there might be a multiplicity of suits, costs, and endless vexations. Orderly administration requires that a pending suit under which the property is held be not entirely ignored, when it is quite manifest that all parties concerned are quite aware of the suits pending.
Eor reasons stated, it is ordered, adjudged, and decreed that the judgment is affirmed. The costs of both courts as to the surety to be paid by defendant and appellee.
Rehearing
On Application for Rehearing.
Plaintiff sued to recover the sum of 85,000, furnished by her to her husband, out of her paraphernal funds, which were used by him in cultivating, harvesting, and manufacturing into syrup a crop of sugar on the Waveland Plantation in the Parish of St. Mary. The petition alleged that the husband executed “a crop privilege” in favor of his wife, pledging and pawning to her the aforesaid crop, which was duly recorded; and that petitioner had a privilege upon said syrup which entitled her to a writ of sequestration. It is conceded that
“in legal acceptation a sum of money due by express or certain agreement; * * * a fixed and certain obligation to pay money, or some other valuable thing, either in the present or in the future.” 13 Cye. 393-394.
A debt for money advanced implies a loan, which is a commutative contract, imposing on the borrower the obligation to pay money,, or to return a valuable thing. Civil Code, 2891-2924. As the spouses cannot make a contract of loan with each other, or any other kind of contract, except transfers of property, as specified in article 2446 of the Civil Code, they cannot by agreement, express or implied, create a debt due for money advanced, or for necessary supplies for any farm or plantation. If the wife permits her husband to use her paraphernal funds, the law gives her a legal mortgage to secure their reimbursement. Civil Code, art. 3319, 3349. The law gives the wife a right of action against her husband for the restitution of her paraphernal effects. Civil Code, art. 2391. But the law does not give the wife a privilege to secure such restitution. It is well settled that the wife has no right of action against the husband, except to obtain separation' from bed and board or divorce; to obtain separation of property; to obtain restitution ,.and enjoyment of her paraphernal property. Code of Practice (Garland’s Ed.) art. 105, notes. Under such a system it is legally impossible for the wife by dealing with her husband to acquire a privilege on his movables, and the right to enforce the same by writs of sequestration. Under the laws of this state the spouses are forbidden to have business transactions with each other, except in the few cases especially permitted by law.
As the plaintiff’s sequestration must be dismissed because she has no privilege, it is unnecessary to decide the interesting question of the right of the plaintiff to sequester property, which had been previously sequestered and released on bond to another claimant.
Rehearing refused.
