Reid v. Rochereau

WOODS, Circuit Judge. The mortgage,' purporting to be executed by Andrew J. Reid and his wife, the complainant, was not executed according to law by the complainant, and was not effectual to bind her separate estate. Though signed by the wife, it is not her deed. If the property were her separate property, the law points out the manner in which she should proceed to mortgage it for the benefit of her husband, and that method was not pursued. By the civil as well as by the common law, the property of the wife cannot be conveyed or incumbered except in the manner prescribed by law. The wife is not estopped by the declaration made in the mortgage to the effect that the mortgaged property was community property, even if the mortgage had been executed with all the forms prescribed by law. Bouligny v. Fortier, 16 La. Ann. 209; Beauregard v. Her Husband, 7 La. Ann. 293: Thibodeaux v. Herpin. 5 La. Aun. 578; Bisland v. Provosty, 14 La. Ann. 169; Gasquet v. Dimitry, 9 La. Ann. 589. The mortgage in question not having been executed by the complainant according to law, the statement therein made, that the property mortgaged was community property no more binds the wife than a declaration made orally to the mortgagee that such was the fact. As the wife cannot be estopped by any such declaration, the question is left entirely open for examination: Was the property mortgaged the paraphernal property of the wife or was it the property of the community? If it was the former, the mortgage is void; if the latter, it is valid and binding. [488] The evidence shows that the lots and the house erected thereon cost $9,700. In addition to this sum, there was expended in additional permanent improvements on the premises in 1871 and 1872, the further sum of $(570, thus making the entire cost of the property $10,370. The entire paraphernal estate of the complainant invested in the property was, $6,429. Now, under this state of facts, what are the rights of the wife, complainant in this caseV I think this question is conclusively settled by the decisions of the supreme court of Louisiana. In the case of Bass v. Larche, 7 La. Ann. 104, the husband claimed, as his separate property, certain lands and slaves purchased by him during the marriage. In passing upon the case the court said: “The plaintiff purchased property to a much larger amount than he had funds to pay for at the time, gave some obligations, and assumed the payment of others; it may be doubted whether such a purchase could, under any circumstances, be considered as an investment of separate funds.” Iu the case of Bouligny v. Fortier, 16 La. Ann. 214. the court say: “We have searched in vain in our reports for a case where the right of the wife to invest beyond her means was sanctioned by this court, but we have, on the contrary, found numerous decisions setting aside conveyances made to the wife on her failure to show adequate means. As the ability of the wife to acquire during the marriage, property in her own name and for her separate account is, under our jurisprudence, an exception to the general rule (Civ. Code, 2374), it must be, therefore, rigidly and strictly construed, and, consequently, the wife is required not only to prove that she had paraphernal effects at her disposal, but also that they were ample to enable her, reasonably. at least, to make the new acquisition; otherwise the contract will be treated as a contract of the community.” These authorities seem to settle the case against 1he claim of the complainant. Giving the largest effect to the testimony of complainant, she only had $6,429 to invest in the property, and the evidence shows beyond question that it cost $10,370. It seems clear that when a wife mingles her own parapher-nal funds with the community funds, in the purchase of property, she cannot claim the whole as her separate estate. The property belongs to the community, and she is the creditor of the community to the amount of her investment. Such I believe to be the decisions of the supreme court of this state on this subject, and they are binding on this court. The complainant’s bill must, therefore, be dismissed at her costs.