Pain v. Perret

Martin, J., delivered the opinion of the court. This is an action for' a separation of property by the wife against her husband.' Several creditors of the husband and defendant, intervened in the suit who oppose the plaintiff’s demand, and are appellants from the judgment of separation of property obtained by the wife against her husband. The only question which the case presents, is, whether ■ the wife can avail herself of her legal mortgage on property situated in a parish where no record of it was ever made 1 The Louisiana Code, article 3298, which dispenses with the recording of mortgages resulting from the dotal rights of the wife, does.not expressly dispense with the recording of mortgages resulting from paraphernal rights. It is difficult to discover any- difference between the claim of the wife resulting from these two different sources, and to say why the indulgence shown to her by the law, in regard to her dotal property, should not be extended to her in case of the paraphernal. The maxim ubi eadem est ratio eadem est lex, would lead to the conclusion that no difference exists. Do'tal rights necessarily resulting from an authentic act are always susceptible of being recorded. Paraphernal rights are hardly ever so. The husband often receives money produced by the use or. sale of the paraphernal property.; without this circumstance coming to the knowledge of the wife; and when it does, it is never, or seldom, that she is in possession of the documents, which are the evidence of her claim against- him. The law never requires what is vain or impossible. We therefore, conclude, that the rights of the wife relating to her dotal and paraphernal property, stand on the same footing as regards the recording the evidence of them. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, will! costs.