Dimitry v. Pollock

Martin, J., delivered the opinion of the court. The wife of Dimitry seeking to avail herself of her legal mortgage in order to satisfy a judgment which she had obtained against her husband, instituted a hypothecary action'against the defendant, who was in possession of a lot of ground, affected by her mortgage. The defendant obtained an injunction, which was dissolved ; and he had judgment against Miller, his vendor, called in warranty; Miller had judgment against Dimitry; and judgment was given against Miller, in favor of G-asquet & Co., whom he had called in warranty. Pollock and Miller appealed. The defendant obtained his injunction on several allegations, one of which only is necessary to he considered, viz : that the judgment of Mrs. Dimitry against' her husband, is the only evidence offered by her of the nature and extent of her claim, and which the defendants contend is no legal evidence against third persons. The district judge overruled the objection, on the ground, that he knew of no case which goes so far as to decide that a judgment is not evidence of such a debt; but admitted, that if it had been shown that [303] the judgment had been based wholly and solely on the confessions of the husband, it would have been no evidence of a debt from the husband to the wife; and urged, that until this fact or fraud was shown, the judgment is prima facie evidence of debt, even against third persons; and the mere circumstance of denying in the answer the consideration of the judgment, will not put the creditor on the proof of it. The acknowledgment of the husband in the marriage contract, that he is possessed of and is accountable for the dot of the wife, furnishes no proof of payment, so as to authorize her to assert her legal mortgage, and recover as against third possessors, and creditors of the husband. So, a judgment obtained by the wife against her husband, for the recovery of her dowry, will not be. received as evidence of her claim against third possessors, when its existence is denied and the judg ment is averred to have been obtained by consent of her husband, and without proper evidence. This is an averment of facts from which fraud and collusion necessarily result. JPrimá fac evidence of tl wife’s claim f her dot, is n sufficient to ai thorize her proceed again third possesso of the husband property • for as to them, the conclusive. [303] The defendant’s petition for the injunction alleges, that before the wife can exercise any right of mortgage on the premises, she must establish her claim contradictorily with the petitioner. The petition expressly denies the claim, and alleges that the judgment was obtained by consent, and without any proper defence. The counsel of the appellants relies on the case of Buisson vs. Thompson et al., 7 Martin, N. S., 460, which decides that the acknowledgment of the husband in the marriage contract, notarial acts, etc., furnishes no proof of payment of the dot as against creditors, a position which the judge of the Distrrict Court acknowledges to be perfectly true. The petition, in our opinion, alleges sufficient facts to repel the wife’s claim against the property of the defendant. It expressly denies the existence of the claim, and avers that judgment was obtained by the consent of the husband, and without any proper defence. It is true, that the words fraud and collusion are not to be found in the petition; but it avers facts, from which fraud and collusion necessarily result; for if the wife had no claim, and obtained judgment by consent of the husband, or without any proper defence on his part, and she seeks to enforce it on the defendant’s property, the defendant may properly urge that she acts fraudulently, and produces the consent of her husband, and the absence of a proper defence, as evidence of collusion. In the case cited, we are of opinion, that primii facie evidence of the claim of the wife is not sufficient to authorize her to proceed against third persons; that as to them, the proof must be conclusive. We did so on the authority of Febrero, who says, “es indispensable que las pruebas sean concluyentes.” [304] Indeed, in many instances, third persons may be relieved against the claim of the wife, in cases in which there is fraud nor collusion. Donations to the intended wife, are often made fin a marriage contract) by the husband, wh° acknowledges the receipt of a sum of money from her 0r her friends. This is in many cases very innocently done, Donations thus made, are binding on him and his heirs, but not so on his creditors. Even when this is done with a fraudulent intention, the marriage contract supports the wife’s claim against him, and he can by no means prevent her obtaining judgment thereon. When this is innocently done, the case presents one in which, although there be neither fraud nor collusion, third parties may resist the execution of the judgment obtained by the wife, when injurious to their rights. We conclude that the claim of the wife being expressly denied by the defendant, and it being alleged that she obtained her judgment by the consent of her husband, or his neglect to urge the proper pleas, the District Court ought to have required her to establish her demand contradictorily with the defendant, and in the language of this court, in the case of Buisson vs. Thompson, by conclusive proof, and the District Court erred in being satisfied with the ‘primii facie evidence, resulting from the judgment against her husband. Justice, therefore, requires, that the case should be remanded to afford her the opportunity of producing the requisite proof. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, as well with regard to the defendant as the other parties, be annulled, avoided and reversed, the injunction reinstated, and the case remanded for further .proceedings, according to law, the plaintiff and appellee paying costs of the appeal.