Succession of Gremillon

The judgment of the court was pronounced by Súdele J. The principal controversy in this case is between the wife of the deceased, who has renounced the community, and Poydras, the appellant. The deceased executed a mortgage in favor of Poydras, in 1834, which was recorded in that year. In 1838, another mortgage of additional property was executed for the same debt. This act recited that the deceased was indebted to Poydras in a capital sum of $6450 95, being the same debt mentioned in the act before the same notary, on the 15th October, 1834, by which a mortgage had been given; and, upon stating the inability of the mortgagor to pay, and that an extension had been granted, he, for additional security, mortgaged other property. His wife intervened in this act, and renounced in favor of the mortgagee. It was recorded in 1838. The act of 1834 was reinscribed in 1845. In 1842, the deceased, as is alleged, became a debtor to his wife for her paraphernal property, received and converted to his own use, and a tacit mortgage was thus acquired in her favor. The wife contends that the mortgage of 1834 lost its precedence, as against her, by the failure to inscribe it within ten years. Poydras meets this objection by asserting that, the inscription of the act of 1838 was equivalent to a reinscription of the antecedent mortgage, to which its recital referred. The Code requires that inscriptions must be renewed in the manner in which they were first' made. Without attempting to define the precise formalities to be observed under this provision of the law, it is sufficient to say that, the recording of an other act containing a recital so naked as was presented in the present case, is not a compliance with the law. It was entirely silent as to the character or site of the property mortgaged. The appellant’s case is not aided by the wife’s renunciation in the act of 1838. The statute of 1835 authorizes married women, who have attained the age of twenty one years, to renounce, by notarial act, with the consent of their husbands, in favor of third persons, their dotal, paraphernal and other rights. But the statute contains the proviso, that the notary public, before receiving the-signature of any married woman, shall detail in the act, and verbally explain to her, out of the presense of her husband, the nature of her rights and of the contract she agrees to. A substantial compliance with the proviso is essential to the-validity of the renunciation. One of its motives was to guard the wife against the influence of the husband, the moral effect of whose presence might control her will, to the prejudice of her interest. This formality was disregarded in tire present case, and the renunciation must be held inoperative. But it is said the wife has not established a right of legal mortgage, within theintendment of the 2367th article of the Code. That it is only where the husband has received the amount of the paraphernal property alienated by his wife, or otherwise disposed of the same for his individual interest, that the law accords a legal mortgage. Before considering this point, a brief notice of the facts is necessary. Mrs.. Oremillon was one of the heirs of her father, Joseph Joffrion. At a sale of the* the real estate of her parent, her husband became a purchaser, gave his notes,, and received conveyances. When a judicial partition of Joffrion’s succession was made among his heirs, the husband’s notes were assigned to Mrs. Oremillon as her share. In 1842, after the partition was homologated, Gremillon received [413] these notes from the parish judge, and gave a receipt for them as his wife’s share of the succession. There isno evidence to show that the notes were ever delivered, or paid, to her by her husband, nor that she had the separate administration of her property. Article 2367 reads thus: “The wife may alienate her paraphernal property with the authorization of her husband, or, in case of refusal or absence of the husband, with the authorization of tire judge; but should it be proved that the husband has received the amount of the paraphernal property thus alienated by his wife, or otherwise disposed of tho same for his individual interest, the wife shall have a legal mortgage on all the property of the husband for the reimbursing of •the same.” In Johnson v. Pilster, 4 Rob. 71, it was held-that the word “ same ” points, not to the proceeds of the paraphernal property sold, as contemplated in the prior clause, but to the paraphernal property itself; and that the law intended to secure the wife, in every case, where the husband disposed of her property for his individual interest. This interpretation is justified-by the reasoning of the court upon the language of the articie as a whole; apd derives, perhaps, additional force from tire broad terms of the french text—ou en a autrement profits pour son bénéfce particular. See also Compton v. Her Husband, 6, Rob. 157. Now, in the present case, the husband has become the owner of real estate belonging to the succession of which his wife was an heir; and the price which fell to her share in the succession went into his hands. So that, in point of fact, he has turned her estate to his individual interest. The appellant concedes that the case would have come within the Code, if the price for which the husband purchased had been cash, and if the husband had paid it to the succession, and then received it again as his wife’s share. Substantially the case is the same, although the husband bought on a credit and gave his notes. The wife’s property is gone, and has been converted to the husband’s use as much in the one case as in the other. It is proper to observe that the husband’s notes took the place of so much real estate of the succession, sold at public sale, and, as we may infer in the absence of contrary evidence, at|its fair value. The reception of the notes by tho husband being proved, and the circumstances of that reception and of their origin, we think the burden was thrown on the opposing creditor to prove that they were afterwards given or paid by the husband to the wife. As tire wife’s mortgage for paraphernal rights absorbs the proceeds of sale of the real estate of Gremillon’s succession, it is not material to consider her alleged mortgage for dotal claims. The district judge was satisfied by the evidence, of the justice of Hr, Mayne’s claim; and we do not consider the decree as requiring amendment on that score. A portion of the medical services were rendered to slaves belonging to the succession, after Gremillon’s death. These are properly privileged; the disbursement being for the preservation of the estate, and enuring to the benefit of its creditors. . Judgment affirmed.