10 La. Ann. 272 | La. | 1855
This is an hypothecary action by which the plaintiffs seek to subject certain property in the possession of the defendants, to a judicial mortgage in their favor, resulting from a judgment which they obtained in 1841, against Oliver B. Gobi.
The defendants pleaded several peremptory exceptions, based upon the proceedings in the bankruptcy of Cobb, which need not to he stated, as the case will be disposed of by a decision on the points presented by the defence to the merits. The first question is whether the legal title to the property vested in Mrs. Cobb, by the adjudications made to her previous to the bankruptcy of her husband. In 1841, she obtained a judgment against her husband, decreeing that her property should be separated from his. It is contended that this judgment was not in accordance with the prayer of Mrs. .Cobb's petition, which simply demanded the restitution of her paraphernal property, and that the judgment was not, in fact, a judgment of separation of property, by which the community could be dissolved. Wo are not at liberty to'go behind the judgment which was rendered by a Court of competent jurisdiction, and which is not impeached on the ground of fraud or colluson. The objection that Mrs. Cobb was not the creditor of her husband, and had no dotal property which was in danger from the embarrassment of his affairs, and had therefore no right to a separation of property, cannot be sustained under the jurisprudence, as settled by our predecessors. In Davoc v. Darcey, 6 Rob. 342, it was hold that the right of the wife to a separation of property was not limited to the cases mentioned in Art. 2399 of the Codo, and that she might obtain a separation of property, when the habits and circumstances of her husband rendered it necessary to preserve for her family, the earnings from her industry or talents. The same question was afterwards decided in the case of Penn v. Crockett & Garland, 7 An. 343, where the right of the wife, which had been made the basis of an action of separation of property, was the value of a slave which had been given to the wife during the marriage, and had been alienated by the husband. The Court reaffirmed the former decision, and hold that in case of this derangement of the husband’s affairs, this was sufficient to authorize a judgment of separation of property in favor of the wife. After these repeated decisions, we must consider the law as settled, the question being one of the construction of statutory laws, involving no fundamental principles. The only other question to be determined on the merits, is whether the judicial mortgage of the plaintiffs can now be enforced on the property in consequence of the failure to record the sheriff’s deeds to Mrs. Cobb until the year 1847. On the 24th of August, 1841, the second writ under which the sheriff had seized and sold her property, was re
There was nothing left from the price of the adjudication to Mr. Cobb, to discharge any portion of the plaintiffs judicial mortgage, and it was the duty of the Sheriff to have’given a release to the purchaser from that mortgage. The price paid by Mrs. Cobb was applied to the extinguishment of the mortgages having priority over that of the plaintiffs. She was equitably subrogated to the rights of the antecedent mortgages under whose executions the property was sold, and had a right to avail herself of any legal or equitable defence, by which, these creditors, if they had become the purchasers of the property themselves, might have opposed the present action. Judice v. Ker, 8th An. 465. The plaintiffs were not injured by the failure to record the Sheriff’s deeds at the time the sales were made. They did not commence any proceedings to enforce their mortgage until after the deeds were placed on record. They then had notice that the property had been sold to satisfy the mortgages existing on it which had precedence over their own — it is true these prior mortgages were then cancelled, but they were cancelled by reason of the Sheriff’s sale of the property, made for the very purpose of satisfying these mortgages, and the sale could not under these circumstances have produced the effect of extinguishing the prior mortgages, without at the same time extinguishing the subsequent ones — Mrs. Cobb or those claiming under her, might at any time after the deed was put on record, have required the Sheriff to give the release of subsequent
The plaintiffs would not under any view that can be taken of their rights be entitled to have the property sold, to satisfy their mortgage without reimbursing the purchase money on the former sale, which has been applied to the ex-tinguishment of the mortgages which stood before them, and no such offer has been made. See cases of Sewell v. Payne & Harrison, 5th An. 255, and Coiron v. Millaudon, 3d An. 664.
We are therefore of opinion that a legal and equitable defence has been made out against the plaintiff’s action.
It is therefore decreed that the judgment of the Court below be affirmed with costs.