Loze v. Dimitry

Martin, J., delivered the opinion of the court. The plaintiff is appellant from a judgment, which decrees to the wife of the defendant (she being an intervening party), the proceeds of two schooners, seized by the plaintiff, under an execution issued in pursuance of a judgment obtained against said defendant, on the 30th January, 1834, while the judgment by which the intervening party obtained a separation of property and liquidation of her claim, was not rendered until the 17th of February following, and that too, after the seizure of the schooner, under his (the plaintiff’s) writ of jfieri facias, which put an end to the defendant’s possession of these vessels. The counsel for the appellant contends, that the seizure under the Code of Practice, article 720, vested in the plaintiff a privilege on the property seized, ■which entitled him to a preference over all other creditors. On behalf of the intervening party, it is urged that the privilege claimed, under the article of the Code of Practice cited, is only a privilege over other common creditors, which does not stand in the way of higher privileges, wheu asserted in due time. We are referred to the Code of Practice, article 396, where the mode in which those who have a higher privilege than the seizing creditor may assert it; that the wife has a tacit mortgage on all her husband’s property, susceptible of being mortgaged, amongst which ships and vessels are expressly classed. La. Code, 3256, No. 4. The seizure under a writ of fieri facias of a schooner or other moveable property of the husband, takes it from his possession; so that a subsequent judgment against him by his .wife, with her legal mortgage cannot affect it. Among the different privileges and mortgages which may exist on ships and other vessels, none is given to the wife. Ships and vessels are subject to hypothecation, though not like immoveables and slaves; but only according to the" laws and usages of commerce. The legal mortgage of the wife does not attach to ships and vessels, as thehypothecation is not effected according to the laws and usages of commerce. It appears to us, that the schooners having been levied on, under the writ of fieri facias, were taken out of the possession of the defendant; and his wife, therefore, could not acquire a privilege on them, by a judgment posterior to the seizure of moveable property. La. Code, art. 3182. The Louisiana Code, article 2304, et seq. recites the different privileges which may exist on ships and vessels; among those, none is given to the wife. Ships and vessels are indeed susceptible of being mortgaged, but not like immoveable property. The mortgage of ships and vessels (or, to speak more correctly, in the language of the Louisiana Code, art. 3272), the hypothecation of shipsánd vessels does not take place, like that of immoveable property and slaves, but according to the laws and usages of commerce. They are not mentioned in that part of the Louisiana Code which treats of legal and judicial mortgages, and not classed with immovable property and slaves, as being susceptible of mortgage. From this view of the case, the District Court erred, in sustaining the claim of the intervening party. In our opinion, she had no privilege, because the schooners, by the seizure under the plaintiff’s execution, were taken out of the possession of the husband, the wife’s debtor, before the dissolution of the marriage partnership. She had no mortgage thereon, as the hypothecation or mortgage on them as ships and vessels had not been made or executed according to the laws and usages of commerce. It is, therefore, ordered, adjudged and decreed, that the •judgment of the District Court be annulled, avoided and reversed; and that the claim of the wife and intervening party be dismissed, with costs in both courts.