Friend v. Fenner

The judgment of ¡the court was pronounced .by Siupell, J. This .case presents aconiest between ,the plaintiff, who is the •wife of Friend, and several of his creditors holding judicial mortgages, as to ¡the distribution of the praceads °f the sale of a slave,. The judgment creditors seized the sjaye who was advertised for sale, and .the plaintiff then instituted this suit, alleging herself to be .a privileged creditor, and praying that the price of the slave whenso.ld be first applied to the payment of a judgment which .she obtained against her husband, in Mur.eh, 1844.. The executions of the .creditors appear to have he,en levied at the time, or shortly before, the wife obtained her judgment. The judgments ,i.n .favor .of the ¡creditors were duly recorded, in .the year's 1842 and 1843. f The only evidence offered by the plaintiff in support .of the alleged privilege .upon the proceeds of .the intended sale., was .a certified .copy of the judgment against her husband, unaccompanied by the pleadings or eviden.ee in that cause, ur by any other evidence whatever. Thejudgmentrestor.es to her the separate administration of certain property, and further adjudges that she recover -from her husband several sums of money, with “ a privilege on the immovable property of her husband”, to bear date respectively from certain dates in the [790] years 1-84’1, 1842, and 1843. No evidence was offered, by any of the parties, to show at what period the slave thus seized had been acquired. The court below decreed a pro rata distribution of the proceeds of sale among all the parties litigant, and the plnintiffhas appealed. The .appellees, in their answer to the appeal, have prayed that the judgment be amended by rejecting the claim of .the wife entirely, and giving.them the entire proceeds of the sale. In the entire absence of any evidence as to the origin .or nature of the claim «pon which the wife obtained judgment, and with nothing-before us but the ■mere judgment in her .favor, against her husband, we are o.f opinion that the <wife has no right to any portion .of the proceeds. The creditors .who oppose her have a double claim upon the proceeds of the slaves. They hold duly recorded judicial mortgages, .and .also the privilege conferred .by seizure under •■execution. The w.ife, on the .contrary, exhibits nothing but .a judgment .against her husband declared to be privileged on his immovables. Whether the /claim arose from dotal.or paraphernal funds received by .the husband, in neither •■case does the law grant her a privilege on the immovable property of her hus.bnnd. The only privilege accorded to the wife on the property of her husband .is for dotal rights, and -is restricted -to moveables. Civil Code, 2355, ,3219. Article 2355 .expressly declares that in no case can the .privilqge granted by the .preceding article be extended to immovables. For the protection of paraphernal rights the law accords to the wife a mortgage only. C. C. 2367. Privi.leges. are stricti juris,.and can be .claimed only for those debts to .which they .are .expressly granted by the lawgiver. Ib. 3152. The 'judgment, therefore, nn which alone the plaintiff’s claim of privilege rests, and to which the defendants were not parties, .violates the law, and cannot affect them. It is as against them erroneous on its face, and we can give it no effect. The expression •“ privilege” may hav.e been inadvertently used fo.r mortgage; hut.it is an error from which we'eannot relieve the party, as we might have done if the plaintiff had not rested solely upon the judgment, but had proved, by further .evidence, the existence of claims to which the law accords aitacit mortgage. It is therefore decreed that tire judgment qf the court .belo.w be reversed, and that there be judgment .in .favor of the defendants; the plaintiff paying .costs in both courts.