Cane v. Alley

The judgment .of the court was pronounced by King, J. The defendant, Martha Alley, obtained .a judgment against her husband for.a sum,of money belonging to her in her separate right, received by the latter after .the marriage; andintho judgment, a mortgagewas recognised in her favor, to take effect.from the 28th May, 1835. At a -sheriff’s sale of her husband’s property made in virtue of an execution issued under .this judgment, Martha Alley became the purchaser of a tract of land. The plaintiffs obtained a judgment, -in 1840, against/. H. Alley, the husband oí Martha, which was duly recorded in .the mortgage office, prior .to the .date.of .the j-udgmentpf Marika Alley against her husband. The plaintiffs seek in this action to enforce their judgment upon the land acquired by the defendant, Martha Alley, at the sheriff ’a .sale .of .her .husband’s property. There was a judgment .for the defendant in the .court belo.w, and .the plaintiffs have appealed. The only questions presented -are, whether a tacit .mortgage exists on the property .of the husband for paraphernal funds of the wife received by the former during the marriage, .and .whether this mortgage takes effect to the prejudice of third persons, without registry. These questions have been repeatedly .decided .in the affirmative by the late Supreme Court, and the principles were re-affirmed by us in-the case of Fisher v. Fisher, ante p. 774. The jurisprudence of the State upon thoso points is too well settled to be now disturbed. Pain v. Terrel, 10 La. 300. Turner v. Parker, 10 Rob. 154. [919] Slideli., Justice, said that he did not assent to the correctness'of tliedoctrine that, the mortgage in-favor of the wife in case of paraphernal claims, exists against creditors without registry, considered as an abstract proposition. But he gave his conciirrence to the opinion in- this cause upon the ground of authority, as a doctrine established by a long course of decisions, and which-had become a rule of property. He alluded to the argument- of the counsel for Staunton, reported in Turner v. Parker, 10 Rob. 159, and stated that he-felt bound-to yield his own opinion to tho force of authority. Judgment affirmed.