Hyman, Lichtenstein & Co. v. Schlenker & Hirsch

The opinion of the court was delivered by Fenner, J. This appeal presents, for our determination, a contest between the attaching creditors of a non-resident debtor and the non-resident wife of the debtor, who claims the property attached by virtue of a dation en paiement made to her by her husband while they were both non-residents of Louisiana and domiciled in the State of Mississippi. The dominant facts are the following: Isaac Schlenker and his wife, Mrs. O. Schlenker, were married at their domicil in Trinity, Louisiana, in 1859. Between the years 1866 and 1874, while they were still domiciled in Louisiana, Mrs. Schlenker claims to have received from an uncle and from her mother certain paraphernal gifts of money and goods amounting to about $7600, which her husband took possession of and converted to his own use. — 112 — In 1878, her husband executed a dation en paiement in her favor, by which he conveyed to her various pieces of landed property, including: 1. A tract of land known as the Elba or Zenor tract. 2. Sundry lots and buildings situated in the towns of Troy and Trinity. The attaching creditors attack the consideration of this dation, and if proof thereof were required, that found in the record is certainly not as conclusive as it should be; but we think the creditors, having become such long after the dation, have no right to attack it. Lewis vs. Peterkin, 39 An. 780. Subsequently Mrs. Sehlenker alienated several of these properties, and the sums are claimed to have been appropriated by her husband to the payment of his debts. These alienations were as follows, viz.: 1. In June, 1878, she conveyed the Zenor tract for the price of $3500. • 2. In March, 1881, she conveyed the Oates or Rawlings lots in Troyville, on which the price actually realized was $350. 3. In 1888 she sold a storehouse and lots in Troyville and a residence and lots in Trinity for $2500. She also claims to have sold another lot in Trinity to McCabe for $100, but the deed is not produced. In December, 1890, Isaac Sehlenker made a second dation en paiement to his wife, from which we make the following extract: “ Before me, J. F. Ellis, a notary public in and for Oatahoula parish, Louisiana, personally appeared Isaac Shlenker, who declared to me, notary, that he is justly and legally indebted to his wife, Mrs. Charlotte Sehlenker, in the sum of seven thousand two hundred and fifty dollars. * * * “The said above amount being the proceeds of sale of one storehouse and lots in Jonesville (or Troyville), Louisiana; the Cates or Rawlings house and lots in Jonesville, La., and dwelling house and lots in Trinity, La.” * * * It thus appears that the only paraphernal debts expressed in the act as intended to be extinguished are those arising from the appropriation by the husband of “the proceeds of sale ” of the particular pieces of paraphernal property therein mentioned. — 113 — As we have seen, these “proceeds of sale,” according to the wife’s own showing, did not exceed the sum of $2950, while the dation conveyed to the wife property estimated in the act itself at $6560, and claimed by the creditors to be worth much more. On the trial of the case counsel for the wife undertook to eke out the consideration, by parol proof that the dation was intended to satisfy other paraphernal claims of the wife besides those expressed in the deed, including the sum of $8500 received as the price of the Zenor plantation, $1100 collected as rents of paraphernal property, and a balance due on the original claim, unsatisfied by the first dation, of $621.98. ' To such evidence objection was made on the following grounds, viz.: “ Parol evidence cannot be admitted against or beyond what is contained in the alleged dation en paiement of infcervenor’s husband to her; nor as to what may have been said or done before, at the time of, or since making said act; nor to vary, contradict, explain, or modify the written terms, considerations or recitals of said act; nor to show source or origin of the consideration, different from that expressed in the instrument. That such evidence,if otherwise admissible, could not be introduced by intervenor, who has claimed under such act; that it is not admissible under the pleadings, there being no averments of such fact, and can not be introduced to affect plaintiffs, who are third persons, and can only be bound by the record.” The judge overruled these objections, and admitted and gave effect to the evidence. In this we are bound to hold that the judge was in error. A dation en paiement by a husband to his wife can not be made otherwise than by authentic act. The extraordinary and highly exceptional effects given by the law to this contract, exempting it from the revocatory action and maintaining it as a preference over creditors, though made while the husbánd was insolvent, emphasize the necessity of holding the parties bound by the recitals contained in the act, and not permitting them to enlarge or extend its provisions by parol proof. The creditors, when they took[out their attachment, had no notice of, and were not affected by, any dation between this debtor and his wife, except that evidenced by the authentic act — 114 — extant upon the records of the parish, and could not be bound by any agreements or understandings between the parties not embodied in that act. Moreover, the wife herself, in her intervention, propounded that act as her title, and made no allegation of any error therein. The act specifically recites, as the only paraphernal claims satisfied by the dation, the moneys due by the husband for the price of particular properties therein stated. To hold that other and different paraphernal claims entered into the consideration and were satisfied by the dation, on mere parol proof, would be, to that' extent, to give effect to a dation by parol. Even if proof of error were admissible, the proof found in this record is insufficient to establish it. We dislike to speak with confidence touching the contents of this enormous transcript, wbich we have been left to eviscerate with hardly any references to pages by the counsel; but if there is any other evidence as to this error except the statement of Mrs. Schlenker herself, it has failed to attract our attention. She says that the intention of Mr. Schlenker and herself was to have the sale made in satisfaction of all her paraphernal claims, and, on the subject of the deed, she says: “I do not know if the deed properly recites the consideration, not having the same before me, but if it does not, there must have been some error in drawing it up.” Of course, we have nothing from the husband on the subject because he was incompetent to testify. There is nothing to show that the notary who drew the act did not conform to the instructions given him, or that the parties who signed it did not read and know its contents, nor is any reason given why the alleged error escaped attention. Surely, it would be a dangerous precedent to allow the recitals by such an act to be varied by the unsupported declarations of error by a single party thereto. As the deed stood, undoubtedly, the paraphernal claims, outside of those mentioned therein, remained unaffected by the dation; and, in after years, might have formed a consideration for a third dation when the interests of the parties required it, in which case the statement of the wife as to her intentions might not have been accessible. We consider the case fully covered by a former decision, where the dation having been made in satisfaction of a particular named paraphernal claim, which the court found to be invalid, the parties — 115 — ought to sustain it by proof of other valid paraphernal claims, but we held them bound by the consideration stated in the deed. Chaffe vs. Schlen, 84 An. 688. Having thus defined the meaning and extent of the act as embracing, for its consideration, only the paraphernal claims therein recited, we will next consider the important questions arising from the domicil of the parties. The attaching creditors are citizens and residents of Louisiana. It is conceded that at the date of;the dation Mr. and Mrs, Schlenker were domiciled in the State of Mississippi. It is claimed, however, on behalf of the wife, that the Mississippi domicil was only acquired in 1889, after the transactions here involved took place,, and that, prior thereto, their domicil continued to be in Louisiana. No doubt, the presumption of law is in favor of the continuance of a domicil once established, and that the party who asserts that it has been changed carries the burden of proof. The evidence of Mrs. Schlenker herself, which is candid and unequivocal, establishes that in 1882 her husband, with his family and the whole of his household effects, removed from their former domicil in Trinity, 'La., to New Orleans, La., discontinuing the mercantile business which he had theretofore conducted in Trinity, and establishing his residence in New Orleans, where he kept house for a year. In 1888 Schlenker moved with his family to Natchez, Miss., carrying all his household effects, established his residence there, went into mercantile business there, has resided and kept house and transacted business there ever since, and has had no other residence. He has reared his children and married two of them in Natchez. There has been his home. It was not only his principal, but his only domestic establishment. It appears that in 1881 or 1882 he commenced a mercantile business in Troyville, La., and that he was in the habit of frequently visiting that place to look after his affairs, but he never had a domicil in Troyville and kept no establishment there of any kind. His former residence in Trinity, La., was at first rented, and subseT quently sold. There is proof that he voted at least once in Louisiana, while living in Natchez, and also that he was accepted as a surety on the bond of the sheriff of Catahoula parish. His wife and partner state that he continued to consider Catahoula parish as his home; but there is no — 116 — evidence that he ever entertained intention of returning or resuming his residence, there. The law is chiefly concerned with persons as the subjects of obligations, and, with the view of giving efficacy to their sanctions, one of its first tasks is to locate each person — to fix a place at which the person shall be considered as always present, actually or constructively, and where the law can reach him when it has occasion to deal with him — in other words, to establish his domicil. The provisions of our code on the subject are clear and direct. “Art. 38. The domicil of each citizen is in the parish wherein he has his principal establishment. The principal establishment is that in which he makes his habitual residence. “Art. 41. A change of domicil from one parish to another is produced by the act of residing in another parish, combined with the intention of making one’s principal establishment there. “Art. 46. Domicil once acquired shall not be forfeited by absence ■on business, but a voluntary absence of two years from the State, or the acquisition of residence in any other State of this Union, or elsewhere, shall forfeit a domicil within this State.’’ Applying these provisions of law to the facts of this case, we can not doubt that, from the date of removal in 1833, Natchez, Miss., has been the legal domicil of Schlenker and his wife. Under a literal construction of the words of Art. 46 that “ the acquisition of a residence in any other State of this Union shall forfeit a domicil within this State,” the case would be too clear for discussion, since no one could doubt that Schlenker acquired a residence in Natchez. But we think the article should not be so strictly construed, and that the legislator meant the acquisition of such a residence as is mentioned in the prior Art. 41, i. e.,'one which combines “ the act of residing” with “ the intention of making one’s principal establishment there.” In other words, Art. 46 subjects the change of domicil from this State to another to the same tests which Art 41 applies to change of domicil from one parish to another. These tests require two elements, viz: (1) Actual residence in the new place; (2) The intention to fix there his principal establishment. The French law applies the same tests. C. N., Art. 103. Says Laurent: “The principle that a mere transient cause which has induced a person to establish a temporary residence elsewhere — 117 — does not give him a new domicil must not be extended so far as to hold that one who establishes himself in a new place, with the intention of returning to the old, preserves, by that fact alone, his former domicil. It is the nature of the establishment that decides the question; it must be the principal establishment in order to fix a new domicil. But if it be the principal establishment, that operates the translation of domicil, even though there be an intention of returning.” 2 Laurent, No. 79; 1 Mourlon, Nos. 325, 326, 827. The French code does not define the words “principal establishment.” Our code expressly declares: “The principal establishment is that in which he makes his habitual residence.” , Said this court: “The law which fixes the domicil of each citizen at the place where his principal establishment-is situated means the principal domestic establishment.” Sue. of Franklin, 7 An. 400. Again: “It is there he sleeps, takes his meals, has established his household, and surrounded himself with his family and the comforts of domestic life. His dwelling house there is emphatically his permanent home.” 4 An. 554. The evidence in this case, as we have stated it, establishes, beyond a doubt, that Schlenker fixed and intended to fix his principal establishment, his habitual residence, his home, in Natchez — not for any transient purpose of health or convenience, but in permanence, as indicated by his entering commercial business there, and by his whole conduct. He had, in fact, already abandoned his domicil in Catahoula parish, when he removed to New Orleans with his family and household effects and established himself there. There is no pretence that he ever intended to return to New Orleans, his last domicil in this State. There is none really that he intended to return to Oatahoula; but if he did, he would» have had to establish a new domicil there, which could not be done without an actual residence. This is not a case like Steele’s case, where the party preserved two establishments, and where the purposes for which he placed his family in Natchez were clearly shown, and the intention to preserve his domicil at the establishment which he kept in Tensas parish is fully proved. We then said: “We do not wish to be understood as saying that, in order to have a domicil at a particular place, it is unnecessary there to have a residence, actual or constructive, with a representa — 118 — tive living therein, at which and on whom, in case of absence therefrom, legal process can be served. However that may be, it is established that the defendant had such a residence in the parish of Tensas, at which service could have been legally made.” State ex rel. Attorney General vs. Steele, 38 An. 912. The rules which govern the change of domicil from this State to another are the same which apply to such a change from one parish to another, and we think no one could doubt that, if Schlenker had established a home in another parish similar to that adopted in Natchez, it would be held to establish a new domicil. It thus appears thait at the time when the dation was made, and also at the time when he received and converted to his use much the larger portion of the personal funds of his wife, which form the consideration thereof, both husband and wife were residents and citizens of the State of Mississippi, and not of the State of Louisiana, and the question is whether such a dation, made on such a consideration, is protected by the law of Louisiana, especially when conflicting with the rights of resident creditors. Marriage creates a civil status. Each State attaches to this status such privileges and disabilities as it deems wise and proper, but these laws are purely domiciliary in their operation, and apply only, as a general rule, and when not otherwise expressly provided, to citizens of the State, or to acts done while they are citizens. When married persons remove to a different State their married status is governed and controlled by the laws of the new domicil. The law of Louisiana attributes to the status of marriage certain peculiar privileges and restraints. It establishes a community of ac-quests and gains between the spouses; it gives to the separate property of the wife the character of dotal or paraphernal property; it protects such property from depredation by the husband by giving the wife a mortgage and privilege on all the property of the husband for the restitution of her dotal effects converted by him and a mortgage for the restitution of her paraphernal effects so converted; it authorizes the wife, in certain cases, to bring suit against her husband for a separation of property, wherein she may not only obtain a dissolution of the community and a protection of her future separate earnings; but may recover judgment for her paraphernal or dotal funds appropriated by him, which may be executed against all his property, and it authorizes the wife, with or without such judg — 119 — ment, to receive from the husband a dation en paiement in satisfaction of her paraphernal or dotal rights, which is valid against'creditors even though, when made, the husband was utterly insolvent. There is no greater reason why this exceptional privilege of dation should be enforced in favor of non-resident married women than there is to recognize their rights of mortgage and privilege, which are not more exceptional. Yet in dealing with the question whether there existed a legal mortgage for paraphernal funds on the husband’s property in this State, this court, after quoting the provisions of law, said: “ These, and other provisions of the Code on the same subject, clearly apply only to persons residing in the State. They repel the idea that the law-giver ever intended to extend the same extreme favor to non-residents, wives andminors, whose rights ever remainamystery to our citizens. “The removal of opponent, with her husband, into this State placed her under the protection of our law for the future. It entitles her to a tacit mortgage for all moneys her husband may have received since, for her account, but to extend back this mortgage so as to recover funds received by the insolvent in 1822, when he resided in Campeche, would be to declare at once that a tacit mortgage exists, even though the husband, the wife, the tutor, or the ward, never were in Louisiana. Such a mortgage we can not recognize, nor do we believe it was ever contemplated by our laws.” Prats vs. Creditors, 2 Rob. 501. In considering the same question in a subsequent case, the court said: “ But every law must be construed, not only with reference to the policy which dictated it, but in connection with similar legislation on the same subject. In imposing such incumbrances upon real estate as that which necessarily result from legal and tacit mortgages, the Legislature evidently contemplated the protection of a class of persons who were unable to protect themselves, and whom they were, therefore, bound to protect. For this reason they have subjected the rights of their own citizens to incumbrances which, though of doubtful policy, it can not be supposed were intended to operate in favor of those whom it was no part of their duty to protect. “It is the duty of the State to protect its own widows and orphans, and those of its own people who are laboring under legal incapacities.” — 120 — Continuing, the court said: “But from a review of the various articles of the Code, on the subject of legal mortgages, it appears to us they point conclusively, not only to the supposed residence in the State of the party whose property is sought to be subjected to their operation, but to the security of a debt originating in the State. The whole tenor of our legislation on this subject appears to us to repel the idea that it was in contemplation of the Legislature to extend the operation of our system of mortgages to cases where the debt itself originated out of a State at a time when the debtor was also a non-resident.” Stewart vs. Creditors, 12 An. 89. Moreover, the right of the wife to enter into such a contract with her husband as this dation, is confined to the case where it is made for the restitution of her dotal or paraphernal effects alienated by him. And it can not be said that the consideration in this case was of that character. The consideration is for personal funds of the wife, received and converted by the husband, while he and his wife were residents of Mississippi. That these funds were personal property does not admit of question, and it is a well-settled rule that personal property has no locality, and is governed exclusively by the laws of the owner’s domicil as to its character, transfer, alienation, etc. 3 Am. and Eng. Encye. of L., pp. 574, 575, and authorities cited. Mobilia ossibus inherent et personam sequuntur. These funds, though accruing to the wife in Louisiana, were received by her as a citizen of Mississippi, and her rights thereto were governed by the law of Mississippi. They never acquired the character of paraphernality under the law of Louisiana, and the husband’s conversion of them subjected him only to the liability imposed by the law of the domicil. It is urged, however, by the learned counsel for the wife that these general principles are controlled by the special provision of Art. 2437, of our Civil Code, which is as follows: “ Whenever a marriage shall have been contracted in this State, and the husband after said marriage shall remove or shall have removed to a foreign country with his wife, if the husband shall behave toward his wife in such foreign country in such a manner as would entitle her, under our laws, to demand a separation of property, it shall be lawful for her, on returning to the domicil where — 121 — her marriage was contracted, to institute a suit there against her husband for the purpose above mentioned, in the same manner as if they were still domiciled in said place. In said case an attorney shall be appointed by the court to represent the absent defendaiit. The plaintiff shall be entitled to all the remedies and conservatory remedies granted by the law to married women, and the judgment shall have force and effect in the same manner as if the parties had never left the State.” We are of opinion that this article is inapplicable, for two reasons: 1. The wife here has not returned “ to the domicil where her marriage was contracted,” within any reasonable intendment of the law. It is true she came to Louisiana and accepted this dation and returned immediately to her domicil in Mississippi. The law obviously means a return to the domicil for the purpose of living there under the protection of its laws, and was intended only to dissolve the community, which Arts. 2899 and 2400 O. O. extend in favor of non-residents, and to protect her property and her future earnings from control or interference by her husband. This is rendered more clear by reference to the origin of the article. It is taken from Act No. 9 of 1855, which is as follows: “ That whenever a marriage shall have been contracted in this State, and the husband, after such marriage, shall remove or shall have removed to a foreign country with his said wife, and shall behave or have behaved toward his wife in said foreign country in such a manner as would entitle her, under our laws, to demand separation from bed and board, or a separation of property, it shall be lawful for her, on returning to the domicil where her marriage was contracted, to institute a suit there against her husband for the purposes above mentioned, in the same manner as if they were still domiciliated in said place,” etc. The compilers of the Code of 1870, in distributing these provisions to their appropriate headings, separated the provisions relating to separation from bed and board and those relating to separation of property into two distinct articles, viz.: the above Article 2487 and Article 142. But these articles must still be construed together, and it is apparent that the same kind of removal to the former domicil is required to support an action for separation of property as to support one for separation from bed and board and consequent — 122 — divorce. It would hardly be supposed that a married woman domiciled in Mississippi could run over into the State of Louisiana for a day, without any intention of remaining here or resuming her residence, institute an action for a separation from bed and board leading to divorce, return instantly to her Mississippi domicil, and claim a decree in such a case, that any court in Christendom would grant or respect. We, had occasion recently to consider the rights of a married woman in such a case and the limitations upon her right to invoke the jurisdiction of her original matrimonial domicil. Smith vs. Smith, 43 An. No such case was contemplated by the law, which only intends to extend its protection to women married here, whose husbands domiciled in another country had so mistreated them as to justify them in leaving the matrimonial domicil and in returning to their former homes to live under and to receive the protection of its laws. 2. Even if the return to the domicil were sufficient, the statute would not cover this case. It is confined to an action for separation of property, and in such action the relief could only extend to the rights of the parties as they stood at the date of the return. It could not authorize a judgment against the husband for paraphernal funds based on claims for personal property converted by him, while husband and wife were both domiciled in Mississippi, and which, therefore, acquired no paraphernal character. It could not recognize a mortgage for such claims, nor would it support a dation in satisfaction thereof to the prejudice of creditors. The only proper pertinency of this statute is to demonstrate that, outside of its exceptional provisions, the views we have herein expressed are correct, and that non-resident married women, though their marriage took place in this State, had not, independently of the statute, the right to bring an action for separation of property in this State, or to avail of similar relief extended by our laws in the protection of our own married women. It is, therefore, adjudged and decreed that the judgment appealed from be amended by rejecting the demand of Mrs. O. Schlenker and dismissing her intervention, and by maintaining the attachment of the plaintiffs and recognizing their privilege on the property attached for the amount of the judgment in their favor, and that as thus amended, the same be now affirmed, appellees to pay costs of appeal.