McLellan v. Dane

'The opinion of the Court was delivered by Poché, J. Defendant has enjoined the sale of her separate property seized under executory process by plaintiff as holder of her note secured by mortgage on the property seized. She alleges that the note and mortgage were obtained from her by unlawful means, under the influence of her husband, who received the money, which was the consideration of the note and mortgage, and that the latter were, therefore, without consideration as to herself ; and she further alleges that- plaintiff is not the owner of the note for valuable consideration before maturity, and is liable to all the defenses which could be urged against the original mortgage. In his answer to the petition for injunction, plaintiff changed his proceedings from the via exeoutiva into the via ordinaria; and defendant has taken the present appeal from the judgment of the lower court dissolving her injunction and recognizing plaintiff’s mortgage rights. The record shows that plaintiff did acquire the note for valuable consideration, and before maturity, and that he has no knowledge of the original transactions beyond that which is imparted by the note and the act of mortgage. It further appears that the wife had been authorized to mortgage her separate property in order to secure the loan which she made,' by the certificate of a competent judge, issued after examination, as required by the law of 1855, now articles 127 and 128 of the Oivil Cede. But it also appears that the note was subscribed by herself and her husband conjointly, and in solido, and from this defendant argues that the act of mortgage was not made to conform with the judge’s authorization, and therefore stands, to all intents and purposes, as though made without such authorization. While the law is peremptory in its prohibition to the wife to bind herself conjointly with her husband for debts contracted by him, we know of no authority, and have been referred to none, which prohibits the husband from binding himself for debts contracted by his wife. In this case the act is expressly made under the authorization of the judge, for an amount equivalent, less interest and discount, to the loan authorized by Mm ; the check, representing the money borrowed, was made in favor of the wife, who endorsed the same, and received the money which it called for ; and to require more from the lender in such cases would be to defeat the very object of the law, which authorizes married women to borrow money and to mortgage their separate property therefor. [1200] Defendant introduced parol testimony to show that the funds thus-borrowed were subsequently received by her husband, and by him used for his own purposes, and in his own business; and the evidence was admitted over plaintiff’s objections, who reserved his bill of exception. The Court erred, and should have rejected the proffered evidence. Our jurisprudence is firmly settled on this question, and it is unnecessary to quote .authorities in support of the position, that, in the absence of any allegation of fraud against the creditor himself, married women are bound, as all other persons, by their contracts and mortgages executed under proper authorization, as required by the law of' 1855 (C. C. 127, 128), and cannot be allowed by parol testimony to attempt to disprove the certificate of the judge and their own authentic declarations in acts of mortgages. Nor will the law authorize the inquiry into the subsequent disposition made of the funds borrowed by married women, when properly authorized thereto. The law does not, and cannot, confer upon the lender in such circumstances the power and authority to watch over and control the acts of the married woman who has borrowed money from him, so as to prevent the improper use of the same. Defendant must be held in the manner that she legally bound herself. We see no error in the judgment appealed from, and it is, therefore affirmed with costs. Justice Fenner, having been of counsel, recuses himself in this case.